FORT SMITH - Residents of a Fort Smith neighborhood cannot sue Whirlpool Corp. over groundwater contaminated by trichloroethyelene because the statute of limitations has run out and others are liable for damage resulting from the contamination, the company claimed Friday in response to a lawsuit in U.S. District Court.
Any connection between damages the residents claim because of the contamination and Whirlpool has been broken by “subsequent and intervening negligence, recklessness, willfulness and wantonness of the third-partyor parties,” Whirlpool said in its response. The filing did not name the third party or parties.
The response also stated the residents were barred from recovering damages because of their failure to “mitigate, minimize or avoid any of the damages alleged in complaint.”
Whirlpool’s filing Friday in federal court in Fort Smith was an answer to a petition for class-action status filed by Scott Day representing as many as 55 property owners in the neighborhood just north of Whirlpool’s closed plant.
The lawsuit initially was filed in Sebastian County Circuit Court last month but was moved to federalcourt because the plaintiffs and defendant are citizens of different states and the amount of the claimed damages exceeds $75,000, according to court documents.
The residents’ complaint, filed by Rogers attorney Kenneth Shemin, claims the trichloroethylene contamination has damaged their properties.It claims Whirlpool is guilty of trespass, nuisance, fraudulent concealment and violation of the Arkansas Deceptive Trade Practices Act. The lawsuit also asks for punitive damages against the company.
The lawsuit quoted Jeff Noel, Whirlpool corporate vice president for communications and public affairs, as saying the company took responsibility for the release of the trichloroethylene from the plant and was committedto handling the contamination in an open and responsible manner.
In its answer filed Friday, Whirlpool, through Fayetteville attorney Robert Jones III, denied the specific claims against it.
Jones also wrote that the requirements for class-action certification were not met and that the interests of its members would not be protected and represented. The residents also lackedtypicality and commonality to them into a single class, Jones wrote.
Two other lawsuits against Whirlpool were filed in circuit court last month by residents and owners of property in the neighborhood. The claims against Whirlpool are similar to those in the class-action suit that was transferred to federal court.
As of Friday, Whirlpool had not filed a response to the lawsuits in state court.
Northwest Arkansas, Pages 9 on 06/29/2013