ALLENTOWN – A class action lawsuit against the makers of Purina pet food which said odors from their Allentown processing plant have negatively impacted the lives of those who live in the vicinity, and whose settlement had been preliminarily approved, has received objections from two class plaintiffs.
Mark Fuehrer and Lori Fuehrer of Allentown first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 11 versus Nestle Purina Petcare Co., of St. Louis, Mo.
The lead plaintiffs live about 1.75 miles from the Nestle Purina pet food manufacturing facility in Allentown, where they said their property “has been and continues to be physically invaded by noxious odors…which entered plaintiffs’ property originating from defendant’s facility.”
“Defendant’s industrial operations at the facility include the production of pet food products. Defendant’s pet food products include animal-derived raw proteins and animal fats, many of which are highly odiferous. Defendant mixes the raw ingredients according to numerous pet food recipes, which are dried and formed into a dough. The dough for each pet food product is then cooked and extruded into its kibble shape. Defendant’s cooking process product produces highly odiferous emissions,” the suit said.
“In July 2017, defendant began utilizing a new cooking operation that caused a substantial increase in the odors produced by the facility. The pet food products then undergo a drying process prior to being packaged and sold. Defendant’s facility has discharge stacks, through which its emissions are released into the ambient air surrounding the facility.”
The suit added that the defendant’s industrial operations also produce substantial quantities of organic waste that must be disposed, and that the waste products are initially disposed on-site.
“Defendant’s industrial operations produce substantial quantities of excess wastewater containing highly odiferous organic matter. Defendant maintains an on-site wastewater treatment operation, which is a substantial contributing factor to the noxious odors generated by the facility,” per the suit.
The litigation stated that the odors are dispersed from the facility all across public and private property through the region, with other class members stating the smell was similar to that of decaying animal matter and has negatively impacted their ability to quietly enjoy their properties.
On March 17, counsel for the plaintiffs submitted a preliminary version of a settlement to end the class action litigation.
Under its terms, within 30 days of the effective date of the settlement, Purina will pay $800,000 to Liddle & Dubin in trust for the settlement class, which, after the disbursement of attorney’s fees and other litigation expenses, will then be distributed among class members who timely submitted a proof of claim and did not explicitly mention their intent to be excluded from the settlement.
According to its further terms, the settlement Class are the named plaintiffs and all persons who, at any time during the Settlement Class Period, either: Owned and occupied a residential property within the area enclosed by the geographic boundary consisting of the one and three-quarters of a mile radius from the property boundary of defendant’s facilities located at 2050 Pope Road, Allentown, Pennsylvania; or resided within a residential property located within the settlement class area.
It also established June 1, 2021 as the deadline for submitting opt-out forms to class counsel and as the deadline for settlement class members to submit proofs of claim.
U.S. District Court for the Eastern District of Pennsylvania Judge Edward G. Smith conditionally approved the settlement terms on March 18.
“The Court finds that the settlement agreement between the parties appears, upon preliminary review, to be a settlement in good faith, fair, adequate, reasonable, and in the best interests of the settlement class, and is preliminarily approved by the Court; etc. as herein,” Smith said.
UPDATE
On June 8, counsel for the Fuehrers submitted notice that two of the class plaintiffs, Dina and Kory Kennedy, objected to the proposed settlement.
The Kennedys believe that Nestle-Purina has not devised a permanent solution to stop the odors emanating from the plant.
“Our basis for the objection is that we are concerned that the settlement does not adequately or permanently address the issue at hand, which is the ongoing and continuing presence of the putrid cooking odors that are permeating the air in our home and around our neighborhood,” the objection notice read, in part.
“This has resulted in a diminished quality of life – the inability to enjoy our home and yard – which will ultimately reduce our home value. Finally, we are concerned that there will be unforeseen health issues associated with this pollution.”
However, the lead plaintiffs, the Fuehrers, believe this objection from the Kennedys should be overruled – due to the fact that no other objections have been received from the rest of the class, that the company has made substantial facility improvements to mitigate odors from the plant and that the time and cost of protracted environmental litigation would not be efficient.
“In sum, objectors will receive fair, adequate, and reasonable compensation for the property damages they have already incurred, and objectors maintain their rights to bring future suits for nuisance odor emissions or any ‘unforeseen’ physical injuries that they may attribute to defendant’s emissions. Thus, this single objection is insufficient to outweigh the overwhelmingly positive response from the class, and it should be overruled,” the objection notice said.
A fairness hearing before Smith will be held on June 25 at 10 a.m.
The plaintiffs are represented by Kevin S. Riechelson of Kamensky Cohen & Riechelson in Trenton, N.J., plus Laura L. Sheets, Matthew Z. Robb and Steven D. Liddle of Liddle & Dubin, in Detroit, Mich.
The defendant is represented by Neil S. Witkes, Austin W. Manning and Garrett D. Trego of Manko Gold Katcher & Fox, in Bala Cynwyd.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-03910
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com