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Jerue v. Drummond Co.

United States District Court for the Middle District of Florida, Tampa Division

April 19, 2018, Decided; April 19, 2018, Filed

Case No.: 8:17-cv-587-EAK-AEP

Opinion

ORDER

Before the Court is Defendant Drummond Company, Inc.'s ("Drummond") motion to dismiss (Doc. 41) ("Motion") Plaintiffs', John J. Jerue and Michael J. Feist, second amended complaint (Doc. 36) ("Operative Complaint"). Plaintiffs filed a response in opposition (Doc. 46), to which Drummond replied (Doc. 50). The Court has considered the Parties' briefings, the pertinent portions of the record, and is otherwise fully advised on the premises. For the reasons set forth below, the Motion is DENIED.

I. Introduction and Conclusions

Several decades ago, Drummond operated a phosphate mine in Polk County, Florida. In the early-1980s, however, Drummond ceased its mining efforts and began developing the former mining lands for residential and commercial use, part of which now encompasses two residential developments—the communities of Oakbridge and Grasslands. Plaintiffs Jerue and Feist, respectively, own homes in those two developments.

Phosphate mining and subsequent reclamation of former mining lands essentially works like this: mining companies, like Drummond, remove the top layer of soil, called [*4]  "overburden," to access "the matrix" beneath it. This matrix consists of equal parts sand, clay, and raw phosphate ore. Water is introduced into the matrix to create a "slurry." This slurry is then pumped to a beneficiation plant, and the plant, through certain processes, removes the raw phosphate ore from the slurry for processing into fertilizers, animal feed supplements, food preservatives, and other industrial products. Finally, the remaining "waste," a mixture of sand and clay is returned to the mining site and used as fill material in the reclamation process.1 This is what occurred at Oakbridge and Grasslands.

Raw phosphate ore is known to contain radioactive elements, such as uranium and its daughter products, including radium-226, which decays to form radon gas. See (Doc. 36, at ¶12, 45). And Plaintiffs allege that the phosphatic mining waste used by Drummond to reclaim its former mining lands was thus "enriched in ... radioactive elements." Id. at ¶46. Plaintiffs further allege that this has contaminated the land on which the Oakbridge and Grasslands developments now sit and created [*5]  a substantial health hazard for residents of those communities. Id. at ¶48. According to Plaintiffs, the level of radiation exposure identified in Oakbridge and Grasslands through both state and federal environmental studies "translates to residents receiving over one chest x-ray per week." Id. at ¶86. In addition, Plaintiffs allege that Drummond, in fact, knew that its former mining and reclamation efforts had contaminated the land and exposed residents to unsafe levels of cancer-causing radiation, but told no one. Id. at ¶¶90-104. Plaintiffs consequently filed this putative class action demanding that the former mining lands be cleaned up, that Drummond fund a "medical monitoring" regime. that provides Plaintiffs with routine medical testing and observation, and that Drummond compensate them for, among other things, diminution in the value of their property and their fear over the risks posed by exposure to dangerous radiation.

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2018 U.S. Dist. LEXIS 228329 *; 2018 WL 7461683

JOHN J. JERUE and MICHAEL J. FEIST, on behalf of themselves and all others similarly situated, Plaintiffs, v. THE DRUMMOND COMPANY, INC., Defendant.

Prior History: Jerue v. Drummond Co., 2017 U.S. Dist. LEXIS 223245 (M.D. Fla., Aug. 17, 2017)

CORE TERMS

Plaintiffs', mining, phosphate, hazardous substance, allegations, radiation, exposure, levels, medical monitoring, contamination, fraudulent concealment, material fact, regulation, wastes, misrepresentation, residential, properties, damages, slag, amended complaint, radioactive, reclaim, risks, exemption, residents, negligent misrepresentation, cause of action, gamma radiation, constituents, reclamation