This case has been on-going for some time, and has now taken a new twist. U.S. District Judge Elizabeth Kovachevich has kept it alive once more.
Comments by OSFR historian Jim Tatum.
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Federal judge allows Lakeland radiation lawsuit against Drummond Co. to go forward
In a ruling released late Thursday, a federal judge again has determined that a lawsuit against the developer of the Grasslands and Oakbridge communities in Lakeland alleging radiation contamination in the soil will go forward.
TAMPA — In a ruling released late Thursday, a federal judge again has determined that a lawsuit against the developer of the Grasslands and Oakbridge communities in Lakeland alleging radiation contamination in the soil will go forward.
U.S. District Judge Elizabeth Kovachevich rejected all of Alabama-based Drummond Co.’s arguments cited in a motion to dismiss, and ruled that lawyers for two residents have alleged enough facts to support their claims of residual gamma radiation from Drummond’s phosphate mining and subsequent reclamation in the late 1970s and early 1980s.
The lawsuit alleges that gamma radiation levels in the two developments have been measured at 11 to 21 times that of federal acceptable risk levels. It seeks compensation for cleaning up the contamination and a medical-monitoring program for residents in the 1,400-acre development.
While significant in a legal sense, Thursday’s 40-page ruling doesn’t address the underlying facts alleged in the lawsuit, lawyers said Friday. It addresses the legal issues impacting the case, but the facts asserted by the residents’ lawyers still have to be litigated, and Kovachevich alluded to that in her ruling.
“When ruling on a motion to dismiss,” she wrote, “the Court must accept as true (the residents’) well-pled factual allegations.”
In her court order, as in August, Kovachevich allowed legal claims to proceed that hold Drummond responsible for damages caused by contamination to the property, while recognizing that lawyers for the residents still must prove their case.
In response to the decision, Houston lawyer Mark Lanier, representing the residents, said in a prepared statement that the ruling paves the way for litigation on the issues raised the lawsuit.
“The people who have bought homes in Oakbridge and Grasslands — most often the biggest purchase of their lives — have a right to know what Drummond knew,” he said, “and more importantly, what Drummond hid from them. And we’re going to find out.”
Lawyers with Holland & Knight in Tampa, representing Drummond, said Thursday’s ruling gives the company the opportunity to challenge the actual allegations.
“The court did not consider any evidence and ruled only that the plaintiffs will have a chance to prove their unsupported allegation,” said Joseph Varner III. “We are not aware of any evidence supporting any of their allegations and we do not believe they will be able to prove them.”
Thursday’s ruling marks the second time Kovachevich has ruled on a motion to dismiss the litigation, which was filed in U.S. District Court in Tampa in March 2017. Last August, she dismissed two of the eight claims in the initial lawsuit and restricted two other claims that accused Drummond of misrepresenting the condition of the land to potential buyers. Her ruling limited those claims to homeowners who bought their properties after March 2005, reflecting a statutory 12-year limit on such claims. She also dismissed two additional claims, but gave the residents’ lawyers the opportunity to amend their allegations on those issues.
The August ruling prompted lawyers for the residents to file amended complaints, which lawyers at Holland & Knight subsequently sought to dismiss. Kovachevich’s ruling Thursday responded to that motion.