Judge dismisses part of IEI suit
Claims of negligence and gross negligence allowed to continue
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PARKERSBURG -- Parts of a lawsuit filed as a result of the IEI Plastics fire have been granted while other parts were denied.
The United States District Court for the Southern District of West Virginia Chief Judge Thomas E. Johnson issued a ruling Monday in the case of "Timothy Callihan (and others) vs. Surnaik Holdings of WV, LLC (and others)."
The fire occurred on Oct. 21, 2017, at the former Ames shovel plant site on Camden Avenue that was being used for storage of various materials. The fire continued to burn and smolder more than a week before being extinguished.
For much of that time, a large plume of smoke rose from the fire and was blown as far as northern Ohio by the prevailing wind.
The suit alleges Surnaik "owned, operated, occupied, and/or managed" the warehouse as "a dump site" for hazardous waste. The plaintiffs also assert the companies of SABIC and Kuraray shipped hazardous materials to the warehouse and did not instruct Surnaik about proper storage of those substances.
The plaintiffs also claimed Surnaik stored the materials without an effective fire prevention and suppression system or a disaster preparedness plan.
The plaintiffs said they were exposed to smoke, odors, gases, and/or fumes, particulate matter, and other harmful fallout material from the fire.
The court dismissed a plaintiffs motion that SABIC shared responsibility with Surniak for what happened and showed gross negligence in what happened as a result of the fire.
''…Plaintiffs fail to demonstrate that SABIC was responsible for the operation of the warehouse, either independently or as part of a joint venture with Surnaik defendants,'' the decision said.
Gross negligence on the part of the defendant must be proved before the plaintiff can recover, the judge said.
The plaintiffs claim of trespass was dismissed with prejudice because materials from the fire being carried over the land by air currents do not constitute a trespass under West Virginia law, the decision said.
Claims by the plaintiffs of private nuisance; public nuisance; negligent infliction of emotional distress; negligent infliction of emotional distress by SABIC and Kuraray; failure to warn; claims for medical monitoring against Surnaik, SABIC and Kurary; unjust enrichment and declaratory judgment claims were all dismissed.
Claims for piercing the corporate veil were dismissed with prejudice.
The court denied the Naiks' motion to dismiss the plaintiffs claim that they were entitled to compensation for future injuries and illnesses resulting from the fire, even though the plaintiffs could not show any facts to directly support their claims.
''Nothing in their complaint suggests that they underwent testing for latent illnesses or otherwise determined that such illnesses were likely to occur,'' the decision said. "Contingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery. Accordingly, plaintiffs' alleged future injury is insufficiently pled. Nonetheless, because there are factual allegations of past injury suffered, Surnaik defendants' motion to dismiss plaintiffs' negligence and gross negligence claims is denied.''
The plaintiffs' claims for negligence against Surnaik and gross negligence against Kuraray still remain, the decision said.
Mike Hissam, attorney for Surnaik, said they were pleased that a number of the claims in the lawsuit were ruled to be without merit.
"We are pleased that, for the second time, the federal court has recognized that the vast majority of the claims in these lawsuits are meritless,'' he said. ''We look forward to vigorously defending the remaining claims."