In the Missouri Court of Appeals

Eastern District

DIVISION FOUR

PATRICK BLANKS, et al., ) No. ED97810

)

Respondents, ) Appeal from the Circuit Court

) of the City of St. Louis

vs. )

) Honorable Dennis M. Schaumann

FLUOR CORPORATION, et al., )

)

Appellants. ) Filed: June 17, 2014 

“Our Tigger.” That is what Austin Manning’s parents called him when he was a 

little boy, because he bounced around like Tigger from the classic tale, Winnie the Pooh. 

He never sat still for more than a second. At the time, the family thought it was cute. 

Little did they know of the problems to come. 

As Austin grew older, he had numerous problems. When Austin started school, 

he had trouble with simple things like writing his name. He was always behind. He 

needed directions to be repeated over and over again. He could not grasp even the 

simplest of concepts. And he could not sit still long enough to do anything without 

constant supervision. From early on, Austin was easily distracted. He could not 

complete a task. He talked too much, he fidgeted, and he disrupted his classroom. He 

struggled in reading and math, and repeated second grade. Austin played Little League, 

but not well. Rather than attentively playing his position, he would often just sit down at 

his outfield position and play in the grass. At home, Austin was restless, disorganized, 
2

and had difficulty doing his chores. He was forgetful. He procrastinated. He was quick 

to anger and often argued with adults. The hyperactivity exhibited in his toddler years 

continued as he grew older. He had difficulty planning or engaging in leisure activities 

quietly. He interrupted or intruded on others. He had difficulty waiting for his turn. He 

was always on the go and acted as if driven by a motor. Unbeknownst to Austin’s 

family, Austin had been exposed to high levels of lead and suffered from lead poisoning, 

all caused by lead emitted from the smelter in his town. 

Austin is not alone. Other children from his town have suffered the same plight. 

The present action involves sixteen children who all suffered lead poisoning while living 

in Herculaneum during their early childhood. The children’s parents, unsuspecting and 

unknowing at first, eventually learned that their children had been poisoned. They sued 

the partners of The Doe Run Company partnership, which owned and operated the 

Herculaneum lead smelter from 1986 to 1994. Framed by the children’s lawyers as the 

age-old conflict of business profits versus human safety, the children alleged the 

partnership negligently allowed them to be exposed to lead. After a landmark trial lasting 

some thirteen weeks, the jury awarded the children millions of dollars, both in actual and 

punitive damages. 

The partners have appealed, alleging a host of errors. Before addressing those 

legal questions, however, we return to Herculaneum, to recount the lives of the children 

and their unsuspecting parents, and the actions of an industry giant that allowed the 

children to be exposed to lead, forever affecting the children.1

 1 We set forth the facts in the light most favorable to the jury’s verdict. Hayes v. Price, 313 S.W.3d 645, 

648 (Mo. banc 2010). We pause here to address the children’s two motions that are pending before this 

Court. The children first move to dismiss the defendants’ appeal for repeated violations of Rule 84.04, the

rule of appellate procedure that sets forth the requirements for an appellant’s brief. The children allege 
3

The Children

The sixteen children who suffered lead poisoning in this case are: Preston 

Alexander, Patrick Blanks, Bryan Bolden, Tiffany Bolden, Nathan Davis, Gabe Farmer, 

Sydney Fisher, Heather Glaze, Jeremy Halbrook, Matthew Heilig, Austin Manning, Jesse 

Miller, Jonathan Miller, Ashley Shanks, Lauren Shanks, and Isaiah Yates. Some of the 

children were born in Herculaneum. Some are even second-, third-, and fourthgeneration residents of the town. Others moved there as infants or young children. 

When asked to describe Herculaneum as that town existed prior to 1994, the parents of 

these children painted a portrait of small-town America. They described “Herky” as a 

 

numerous violations, ranging from an improper statement of facts to improper points relied on, to 

inadequate citations to the record. The allegations contained in the children’s 74-page motion are largely 

meritorious. The most egregious of defendants’ violations, and the one that most affected the disposition of 

this appeal, is the defendants’ statement of facts. Rule 84.04(c) requires that an appellant’s fact statement 

be a “fair and concise statement of the facts relevant to the questions presented for determination without 

argument.” “The primary purpose of the statement of facts is to afford an immediate, accurate, complete 

and unbiased understanding of the facts of the case.” Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 

515 (Mo. App. E.D. 1998). Defendants’ statement violates the rule’s requirements and falls woefully short 

of fulfilling its essential purpose. Defendants present a statement of facts entirely biased in their favor, 

while ignoring and excluding the facts that support the verdict. An appellant must provide the facts in the 

light most favorable to the verdict, not simply recount appellant’s version of the facts presented at trial. In 

re Marriage of Weinshenker, 177 S.W.3d 859, 862 (Mo. App. E.D. 2005). Emphasizing facts favorable to 

the appellant and omitting others essential to the respondent does not substantially comply with Rule 84.04. 

Rothschild v. Roloff Trucking, 238 S.W.3d 700, 702 (Mo. App. E.D. 2007). Defendants also repeatedly 

misstate the evidence. And their fact statement is inappropriately riddled with inflammatory language as 

well as disparaging remarks about the trial judge, which we find entirely unjustified. Further, while the 

parties may be intimately acquainted with the context of their litigation, the matter is new to this Court. It 

is not this Court’s duty or place to comb through the record, ferreting out facts, to gain an understanding of 

the case. Yet, this is exactly the position in which defendants placed this Court. The record on appeal 

consists of transcripts totaling over 12,000 pages and a legal file that exceeds 6,600 pages. The parties also 

filed over 1,400 exhibits with this Court. The defendants’ failure to provide an adequate statement of facts 

resulted in the waste of judicial resources and added an inordinate amount of time to the disposition of this 

appeal. 

Compliance with the briefing requirements is required, not only so the appellant may give notice of the 

precise matters at issue, but also so that unnecessary burdens are not imposed on the appellate court and to 

ensure that appellate courts do not become advocates for the appellant. Thornton v. City of Kirkwood, 161 

S.W.3d 916, 919 (Mo. App. E.D. 2005). Failure to comply with Rule 84.04 preserves nothing for review 

and warrants dismissal of the appeal. Culley v. Royal Oaks Chrysler Jeep, Inc., 216 S.W.3d 235, 236 (Mo. 

App. E.D. 2007). An inadequate statement of facts is grounds for dismissal. See Washington v. Blackburn, 

286 S.W.3d 818, 820 (Mo.App. E.D. 2009). Given the gravity of this case, however, we have elected to 

exercise our discretion to review the case, choosing instead to deal with the defendants’ violations as they 

arise, in the body of our opinion. We therefore deny the children’s motion. The children also request that 

this Court sanction defendant Fluor under Rule 84.19 for its conduct in knowingly presenting false and 

materially misrepresented facts to this Court. We likewise deny that motion. 
4

friendly, close-knit community, where everyone knew everyone else, and doors went 

unlocked. Children spent their days playing outside. They rode their bikes in the streets 

around the smelter. They fished near the dam behind the smelter, and even played on the 

smelter’s slag pile. Families frequently took walks past the smelter. They gardened and 

worked in their yards. They barbequed and threw birthday parties for their children in 

their backyards. 

In their early years, the children explored their world. For instance, Austin 

Manning loved to play in the dirt with his Tonka trucks and Hot Wheels. He built 

racetracks in the dirt. Before he was old enough to play with his trucks, he would play on 

blankets in the yard. Jeremy Halbrook also liked to play in the dirt with his dump truck. 

Preston Alexander played outside in his sandbox, played ball in his yard, and enjoyed 

Easter egg hunts. Jesse Miller crawled around and sat in the yard with his mother, 

picking grass. Isaiah Yates, when just in diapers, crawled around in his yard, picking up 

sticks. Patrick Blanks played with his shovels and buckets for hours in the dirt in his 

backyard. Each fall, Gabe Farmer played in the leaves in his yard. Sydney Fisher, from 

the time she was an infant, spent a lot of time in her yard. She played on the ground, 

played with her dog, and when she was older, she played on her swing set. She could see 

the smelter’s smokestack from her yard.

The children here all lived very close to the lead smelter. Some lived directly 

across the street; all lived within several blocks of the smelter. The parents universally 

noted that smoke emanated from the smelter and settled like smog over the town several 

times a week. The smog had a strong sulfur odor; it burnt people’s eyes and had a 

“horrible” taste. As one parent related, “You could taste it, you could feel it, you could 
5

see it.” The families also noted the enormous amount of dust that collected in their 

homes. Those who moved to the area noted that Herculaneum was dustier than other 

places where they had lived, and that their homes were harder to keep clean. Moreover, 

the dust was not like “normal” dust or dirt, but instead was dark gray or black in 

appearance and felt gritty. The families dusted and vacuumed each and every day. Even 

with that, they could not remove all the dust from their homes. 

Despite all this, the parents gave the smog, the dust, and the smelter little or no 

thought. They knew the smelter existed – you could not miss it. Isaiah Yates’s parents, 

in particular, hauntingly recalled having no concerns about the smelter. They moved to 

Herculaneum in January of 1990, two years prior to Isaiah’s birth. They were looking for 

a starter home and a good place to raise their children. They were pleased to find the 

house in Herculaneum, in a neighborhood full of kids, with the school nearby, just a 

block down the street. They were aware of the smelter but were not worried, especially 

since the school was located so close to the smelter. They presumed that if there was a 

problem with the smelter, something would be said, and nothing ever was. Indeed, Mrs. 

Shanks’s depiction, stated in rather blunt, matter-of-fact terms, aptly summarizes the 

parents’ feelings: “There was a smelter. It was there. It was safe.” 

Unbeknownst to the parents, the air they breathed, the streets and dirt alleys they 

walked on, and the homes and yards they lived in were all contaminated with lead. The 

parents testified that prior to 1994, during the partnership period, no one from the smelter 

ever warned them of the danger their children faced. No one ever told them that lead 

from the smelter was poisoning their children. 
6

“Just can’t seem to get it together.” This is how Patrick Blanks describes himself. 

Born in July of 1990, Patrick was very flighty as a young child – he just could not stay 

still. Once in school, he disobeyed, he talked back, and he disrupted his classroom. He 

would not sit down and listen. Patrick was diagnosed with Attention Deficit 

Hyperactivity Disorder (ADHD) and placed on Ritalin, which helped a bit. Nevertheless, 

even though Patrick was a bit more calm and obedient, his troubles persisted. He could 

not focus on the task at hand. And he was impulsive and aggressive. He started kicking 

his classmates’ chairs. And when about ten years old, he hit one of his classmates, 

breaking the classmate’s jaw. Patrick ended up in juvenile detention. He got into another 

fight several years later, and ended up in juvenile detention again. At this point, Patrick 

dropped out of school. As a young adult, Patrick still has attention problems and does not 

follow through. He would like to return to school to train as an electrician. Patrick’s 

grandmother, though encouraging, has her reservations. She does not think Patrick can 

work as an electrician because he cannot focus and is forgetful. 

“Always different.” This is Melissa Alexander’s description of her son Preston. 

Melissa was pregnant with Preston while living in Herculaneum. She gave birth to 

Preston in 1989. Preston’s problems began when he was three or four years old. He 

started crying at night, complaining about his legs cramping. This went on continuously, 

and got so bad that Preston’s father had to wrap warm towels around Preston’s legs to 

comfort him. Preston also complained about severe stomach-aches. As a young child, 

Preston was always very hyperactive. He was temperamental and would throw fits. He 

was a very angry child and always wanted to fight. He talked back, did not listen to his 

parents, and constantly got into trouble. In school, Preston had an unpredictable 
7

personality and was known as the school bully. He had a short temper with his coaches 

in high school. Preston was always behind in his schoolwork. He spent hours each night, 

just trying to finish his homework. He could not stay focused. He still has difficulties 

today as an adult. A year prior to trial, Preston was employed by a company that 

delivered equipment to construction jobs. Preston had difficulties at his job, learning, 

understanding, and being able to fulfill his job duties. A coworker described Preston as 

being “slow” and “in a daze.” They always had to tell him what to do, and they had to 

constantly watch him so that he did not fall over construction work or wander into traffic. 

“Like a mummy.” This is how Jeremy Halbrook felt when taking medication to 

treat his ADHD. Born in 1984, and a resident of Herculaneum as of 1986, Jeremy as a 

child had trouble sitting still, following through with tasks, and completing assignments 

on time. He was jittery and anxious. This all affected his ability to do his schoolwork. 

Jeremy was a very poor student and struggled from the beginning. He had difficulty 

understanding the material. He could not concentrate and often forgot what he had just 

read. He needed much direction to complete a simple assignment. He was impulsive and 

was easily distracted. He could not stay seated in class, he spoke impulsively, and he hit 

his classmates. Jeremy had difficulty getting along with others. He was angry and could 

be mean. He got into verbal fights and inappropriately teased his classmates. He had few 

friends in high school. 

Jeremy was diagnosed with ADHD when in the third grade. The doctor placed 

him on Ritalin to treat his symptoms. While on the drug, Jeremy would not eat. He had 

no emotions. A change in medication helped slightly – Jeremy would at least talk. Still, 

he was still very quiet, withdrawn, and “just not who he really was.” He was still fidgety 
8

and did not complete his schoolwork on time. Jeremy began treatment with a 

homeopathic doctor when in 6th grade, which slightly helped his hyperactivity – he could 

at least sit still a little bit. However, despite this, Jeremy continued to struggle. Indeed, 

he still struggles today. He has problems with attention and cannot focus and complete a 

task without someone coaching him. His mind wanders. He toils with his finances and 

gets help paying his bills. He likely could not pay them without help. He has low selfesteem, little to no interest in life events, and does not like being around a lot of people. 

These are just a few of the children’s stories. With no disrespect intended, we cite 

just these illustrative examples instead of setting out the particulars of each child’s 

troubled development. Taken together, the stories tell the same tale. When young, the 

children were very active, very “busy,” and would never sit still. As they grew older, this 

hyperactivity continued. Jesse Miller, for example, when eleven years old, was 

extremely hyperactive – talking, walking, and practically running. “I’ve never seen one 

quite like this,” exclaimed one expert. Jesse’s mother remarked that he took up seventyfive percent of her time. Further problems with memory, concentration, and 

comprehension emerged and became evident when the children started school. They had 

difficulty staying on task and were easily distracted. Jonathan Miller’s mother, for 

instance, said that she could ask Jonathan to take out the trash, and if he did not 

immediately do so, he would still be sitting a minute or so later because he had forgotten 

what she had asked. Similarly, Bryan Bolden would get halfway out with the trash, then 

forget what he was doing and not finish the task. Nathan Davis, though physically able, 

tried to play football in high school, but could not remember the plays. The children all 

had difficulty keeping up with their schoolwork. They fidgeted and disrupted the class. 
9

They had difficulty grasping concepts and had to be told things several times over in 

order to understand the material. As Gabe Farmer’s mother explained: “You would just 

go over and over and over, and he was somewhere else. All he did was daydream.” The 

children spent twice as long on their homework as their friends, just to be able to 

complete their assignments. Many needed tutoring or special classes. Five of the sixteen 

children repeated grades. All of this took a toll on the children. Isaiah Yates, for 

instance, came home from school crying every day because he could not keep up with his 

schoolwork and felt “stupid.” 

A number of children also have behavioral and social problems. They are quick 

to anger. Matthew Heilig, for instance, gets very angry and takes his anger out on 

furniture and walls, to the point of putting holes in the walls. Ashley Shanks complains 

of being irritable and angry. Several children have become defiant, others disrespectful. 

Several were suspended from school. Several, like Jeremy Halbrook and Matthew 

Heilig, have trouble getting along with others and avoid large groups. A number also 

suffer from depression and low self-esteem. 

The children’s problems persist in young adulthood. Problems with memory and

concentration continue. Several of the children have tried to attend college, only to fail. 

Ashley Shanks, for example, has dropped out of three colleges. She cannot hold down a 

job and has many unfinished projects at home, all because of her inability to concentrate. 

Despite very much wanting a college education, Gabe Farmer simply could not complete 

his studies. After three semesters, Gabe had a grade point average of 0.22, and dropped 

out. In daily life, Gabe forgets to pay bills. His roommate helps out, and according to 

Gabe’s mother, it would be a disaster for Gabe to live on his own. The children, like 
10

Preston, need constant supervision. For instance, Nathan Davis, who works at a company 

that builds refrigerators, often drifts away, and coworkers have to tell him every day what 

to do. Heather Glaze “zones out” at work and coworkers have to repeatedly tell her work 

duties. She is inattentive and fails to complete assigned tasks. She is often disrespectful 

and is sometimes difficult to get along with. Her coworkers tend to walk on egg-shells 

around her. Self-esteem problems continue as well. Nathan Davis, for example, gets 

upset over little things. He once broke down at work – crying, sweating, and pulling his 

hair out, unable to speak – when a coworker told him he was a slow worker. Lauren 

Shanks has severe anxiety. One time, while driving, she pulled to the side of the road, 

called her mother, franticly crying, because she had so many things going on her life that 

she did not know what to do. Her mother remarked that Lauren “is not managing well.” 

Lead: Sources of Exposure and the Effects of Lead Poisoning

All sixteen children were eventually diagnosed as having elevated levels of lead 

in their bodies – or in short, lead poisoning. Lead enters the body principally through 

ingestion and inhalation. The lead is then absorbed into the bloodstream and distributed 

to all body tissues. Exposure to lead can cause a myriad of serious and devastating 

effects in young children. This is so because the most crucial and rapid time for brain 

growth and development is during the last trimester of pregnancy and the first five to 

seven years after birth.2

 “Holes in the brain” – this is how their expert described the 

brains of children who are exposed to lead at levels suffered by the children. With such 

elevated levels of lead, a child suffers significant brain loss in the very portions of the 

brain responsible for reasoning, attention, short- and long-term memory, motor function, 

 2 The children all lived in Herculaneum and were exposed to lead at some point from their time in utero to 

when they were six years of age. 
11

integration of function, and sensation.3 This significant loss of brain tissue has grave 

implications. Lead in children can cause cognitive and neuropsychological problems, 

learning disabilities, mental retardation, decreased intelligence, IQ loss,4 attention deficit 

hyperactivity disorder (ADHD),5 as well as psychiatric and behavior problems. 

Furthermore, lead can cause nervous system and kidney damage, asthma, hearing loss, 

decreased muscle and bone growth, poor muscle coordination, convulsions, seizures, and 

even death. 

Exposure to lead as a child can also lead to many problems in adulthood. 

Exposure to lead puts one at an increased risk of hypertension (high blood pressure), 

which can lead to strokes. Lead can also cause numerous problems during pregnancies. 

Women with significant amounts of stored lead in their body have an increased risk of 

problems with pregnancy, including premature birth, spontaneous abortion, toxemia, as 

well as problems with metabolism and blood pressure. Also, lead affects the fetus. Lead 

present in the mother’s body crosses the placenta to the fetus in a proportionate amount. 

A child at birth will have essentially the same blood lead level as the mother. Moreover, 

a mother’s blood lead level rises during pregnancy because lead stored in the mother’s 

bone migrates into the bloodstream, further increasing the exposure and lead levels of the 

fetus. Lead in a fetus can cause significant harm, including brain damage or death. In 

 3 One study has shown up to a 1.2 percent brain loss in those exposed to lead levels of 5 micrograms per 

deciliter or above. The children’s levels in this case were all much higher than five. 4 Dr. George Rodgers, testifying on the children’s behalf, noted that it is broadly accepted by the scientific 

community, since the early-to-mid 1970s, that lead causes IQ loss. On average, one loses one IQ point for 

every three to five micrograms of lead in their blood. For example, if one has a blood level of twenty, then 

it is estimated that the person has lost somewhere between four and seven IQ points. According to Dr. 

Rodgers, several papers published in the last ten years estimate a higher loss – that one loses seven IQ 

points in the first ten micrograms per deciliter of lead. In other words, if a child’s lead level is ten, that 

child has lost seven IQ points. 5 As recently as the mid-to-late 1980s, Attention Deficit Disorder (ADD) and ADHD were two separate 

diagnoses under the DSM – the diagnostic statistical manual, an important guidebook that sets out criteria

for diagnoses of psychological disorders. ADD had no hyperactivity; ADHD did. Now there is a single 

diagnosis – ADHD, in three types: primarily inattentive, primarily hyperactive-impulsive, and combined. 
12

particular, lead prevents the growth and maturation of the nervous system and causes 

dissolution or loss of brain tissue in the growing fetus. 

Exposure to lead may occur from a variety of sources. In years past, lead-based 

paints and lead in gasoline were common sources of exposure. The United States 

government, however, banned lead from paint and gasoline in the late 1970s, and so 

exposure to lead from these sources has greatly decreased. While lead-based paint may 

still be present in older homes, the more common sources of lead exposure now are leadcontaining air emissions, contaminated ground water, and contaminated soil. In 

Herculaneum, the children’s exposure to lead came from the air and contaminated soil; 

contaminated water was not an issue. 

Lead levels in children who live in lead-laden environments fluctuate over time. 

Typically, lead levels will start to rise when children begin to crawl, around six months to 

one year in age. No longer immobile, children are now down on the floor, in the dust, 

and they start putting anything and everything in their mouth as they explore their world. 

Lead levels reach a peak during the toddler years – at 18 to 36 months. Children at this 

age are more active, but they lack the discrimination to avoid things that might be 

harmful. They are now able to walk, unattended by family members, and they still put 

things in their mouth, not knowing any better. Children at this age also have rapid 

respiration rates, and they absorb nearly all the lead they breathe into their bloodstream. 

All of this increases the amount of lead young children take into their bodies. 

Once children reach the age of four or five, they generally are more 

discriminating and stop putting everything into their mouth. And their respiration rates 

decrease. Thus, their intake of lead declines, and correspondingly, their blood lead levels 
13

begin to decline. But, this does not mean that the lead has left the body and is gone. 

Quite the contrary. Lead gets stored in bone and soft tissues – the kidneys, heart, liver, 

and most especially the brain – and it remains there for years, slowly leaching over time. 

While the half-life of lead in the bloodstream is generally about a month, the half-life of 

lead stored in the brain is about two years.6

 The half-life of lead in bone is more than 

twenty-five years. Levels decrease at a slower rate in those who are living in an 

environment where they are being constantly re-exposed to lead. And the lead continues 

to cause harm while stored in tissue. Put bluntly, the lead programs cells to die. 

CDC Levels of Concern

Childhood lead poisoning has long been a problem in this country. Over the 

years, the Center for Disease Control (CDC) has set “levels of concern” regarding blood 

lead levels. According to the CDC, a “level of concern” is a level that should trigger 

public-health actions. In 1985, the CDC set a level of concern at 25, adjusted down from 

30.7

 In 1991, the CDC lowered the level of concern to 10. The CDC also issued 

guidelines in 1991 stating that the presence of a large proportion of children with blood 

lead levels in the range of 10-14 should trigger community-wide activities to prevent lead 

poisoning. 

The level of concern is not a level below which children are safe. Although some 

mistakenly think of the level as a level of safety, the CDC has never considered the levels 

of concern to be levels below which there is no toxicity. Dr. George Rodgers, a 

pediatrician, toxicologist, and member of the CDC Advisory Committee on Childhood 

 6 “Half-life” of lead means the length of time it takes to get rid of half of the amount of lead. 7

 The blood lead levels here, and throughout the opinion, are expressed in terms of micrograms of lead per 

deciliter of blood (μg/dL). 
14

Lead Poisoning, explained that it has been long known – for more than thirty years – that 

lead has toxicity well below the levels of concern. Toxic effects even occur at very low 

levels of lead. In short, there is no safe level of lead. 

Children’s Lead Levels

Once they were tested, the sixteen children all had high levels of lead. Test 

results from the early 1990s show the children with blood lead levels anywhere from 9 to 

24. Studies show that during the time period of 1988 to 1991, the mean blood lead level 

in the country, for children ages one to five years of age, was 2.8. For the time period of 

1991 to 1994, the mean level was essentially the same, at 2.7. The sixteen children’s 

levels far exceeded these means. Gabe Farmer, for example, tested at nearly five times 

the national average. Jeremy Halbrook tested at six times, and Bryan Bolden tested at ten 

times the national average. 

Some of the children were tested in 1992; the majority were tested in 1994 and 

1995. By this time, many of the children were past their toddler years, and thus past the 

age of peak lead levels. Still, their levels far exceeded the national average. Dr. Rodgers 

explained that those children would have had even higher levels when younger. Gabe 

Farmer, for example, had a likely peak level of 31.2. Jeremy Halbrook had a likely peak 

level of 25.2. The children’s exposure histories and test results, provided by Dr. Rodgers, 

appear in Appendix A. 

ADHD and the Children’s Diagnoses

All sixteen children were diagnosed with ADHD, as well as loss of IQ due to their 

exposure to lead. Their complete diagnoses appear in Appendix B. ADHD is a 

neurological, neuropsychiatric disease. Essentially, a person with ADHD does not have 
15

the ability to pay attention adequately to function in academic, social, and workplace 

settings. The salient features of ADHD are inattention, hyperactivity, and impulsivity. 

Those with inattention fail to give close attention. They tend to daydream. They are 

disorganized and forgetful. They often get distracted by extraneous stimuli and lose 

focus. They have difficulty sustaining attention in tasks or play activities. Those with 

hyperactivity are very fidgety and very restless. They are always on the go, and are 

described as being “driven by a motor.” Those with the impulsivity aspect of ADHD 

tend to act first before they think. They are incapable of considering the consequences of 

their actions. The most common, pervasive type of ADHD is the combined type, where 

an individual experiences all three features – inattention, hyperactivity, and impulsivity. 

This form of ADHD is the most impairing. Ten of the children here were diagnosed with 

this type of ADHD.

Several medications attempt to temper the symptoms of ADHD. As seen with 

Jeremy Halbrook, however, those medications come with significant side effects. They 

can cause one to feel like a zombie, and to have a loss of appetite, leading to significant 

weight loss. 

ADHD is a lifelong problem. Over seventy percent of those with ADHD never 

outgrow the disorder. The hyperactivity and impulsivity may decrease as one becomes 

an adult. The inattention, however, never gets better for most. Rarely are these people 

successful. ADHD affects one’s life pervasively. Those with ADHD struggle in school, 

they struggle at work, and they struggle to have meaningful relationships.

ADHD never occurs in isolation. A number of other disorders, such as 

depression, anxiety, oppositional defiant disorder, obsessive-compulsive disorder, 
16

mood/bipolar disorder, and antisocial personality, occur together with ADHD. These 

disorders, like ADHD, impair a person’s performance in school and in the workplace, and 

affect a person’s relationships. The disorders can be crippling, to the point of rendering a

person unable to function. 

Ten to thirty percent of patients with ADHD have depression. Compared to the 

general population of those who do not have ADHD, those with ADHD have three to six 

times more depression, three to six times more alcohol and drug abuse, three to six times 

more divorce or separation, three to six times more automobile accidents, and three to six 

times more suicide attempts and suicides. Ten to thirty percent of those with ADHD also 

have anxiety. They become very anxious that they cannot concentrate, finish projects, or 

be as productive as desired. They describe themselves as feeling all wound up like a 

rubber band, tight as a drum. Anxiety often occurs with depression. 

Fifty percent of those with ADHD have oppositional defiant disorder – a rejection 

of authority. They do not submit to authority, and want things their way. Twenty to forty 

percent of those with ADHD have an obsessive-compulsive disorder. Those with ADHD 

have an increased risk of a mood or bipolar disorder, described as the roller-coaster ride 

of emotions. An antisocial personality is yet another example of a neuropsychiatric 

disorder experienced by those with ADHD. Such a person is unable to interact with and 

respond to others in normal fashion. They may be confrontational, and they may become

agitated and irritated with others, with or without provocation. As a result of not being 

able to connect or interact well with others, they are withdrawn and shy, and often 

become socially ostracized. In their judgment, it is safer for them to be shy and 
17

withdrawn than to risk the sociological and emotional consequences of not being able to 

connect with people. 

Carl Hansen, a vocational rehabilitation counselor, testified specifically about 

ADHD’S effect on a person in the labor market. He noted that those with ADHD rank 

“significantly lower” in occupational status. They are less likely to attend college and, if 

attending, are less likely to graduate. They receive poor job performance ratings and are 

more likely to be fired. They use more sick leave and have a higher risk of workplace 

accidents than those who do not suffer from ADHD. They quit jobs impulsively and 

have chronic unemployment problems. Over the course of their career, those with 

ADHD will lose a significant amount of time in the labor market – ranging from fifteen 

to thirty percent of work time lost – due to their disorder. Dr. Hansen opined that the 

children here would be unlikely to receive a college degree, and that all had suffered a 

significant loss in earning capacity, ranging anywhere from nine thousand to twenty-five 

thousand dollars per year, depending on the child’s circumstances.

Physicians testified that the ADHD and the other conditions suffered by the 

children in this case were permanent and serious, and were caused by the children’s 

exposure to lead emanating from the smelter. 

Children Sue the Doe Run Company Partnership

The children sued the partners of the Doe Run Company partnership for 

negligently exposing them to lead. The children alleged numerous and wide-ranging acts 

of commission and omission by the partners.

8

 In sum, the children alleged the 

partnership knew of the lead contamination present and occurring in the community, and 

 8 In particular, the children pleaded defendants were negligent in one or more of the following respects:
18

knew of the danger and the harm lead posed, but sacrificed the health of children for 

greater profits. The children sought compensation for their injuries, as well as punitive 

damages. Several parents explained why they sued. Matthew Heilig’s mother said it was 

“heartbreaking” to see her son the way he was. Ashley and Lauren Shanks’s mother 

noted that for years Doe Run knowingly poisoned her children. Isaiah Yates’s father 

sued because his son was poisoned and because the company showed indifference and 

put fault at his feet. Austin Manning’s mother put it bluntly. She brought suit because 

 

(a) Permitted lead and other harmful metals and substances to be mined, generated, smelted, 

processed, released, dumped, deposited and placed into the air and deposited onto the 

land when defendants knew, or by the exercise of ordinary care should have known, that 

the mining, generating, smelting, releasing, dumping, depositing, handling, storing, 

treating, transporting, loading, unloading and disposing of such toxic substances was 

dangerous and harmful to the public, and more particularly, plaintiffs;

(b) Failed to adequately and properly monitor and control the emissions and release of lead, 

metals and toxic substances into the air and environment by failing to report and act, or to 

timely report and act, upon instrument readings and warnings, and by utilizing, and knew 

or should have known of the utilization of, equipment and instruments which were altered 

and not adequate or proper and/or which were not adequately or properly calibrated or fit 

or suitable for use;

(c) Doe Run defendants failed to adequately and properly supervise the safe mining, 

generating, smelting, releasing, dumping, depositing, handling, storing, treating, 

transporting, loading, unloading and disposing of the aforedescribed lead, metals and 

other substances;

(d) Doe Run defendants failed to adequately and properly control the mining, generating, 

smelting, releasing, dumping, depositing, handling, storing, treating, transporting, 

loading, unloading and disposing of the aforedescribed lead, metals and other substances;

(e) Doe Run defendants failed to adequately and properly contain the mining, generating, 

smelting, releasing, dumping, depositing, handling, storing, treating, transporting, 

loading, unloading and disposing of the aforedescribed lead, metals and other substances;

(f) Failed to warn, or to adequately warn, the public, and more particularly plaintiffs, and 

children, parents, school administrators, church officials and residents of Herculaneum, 

of the dangers, hazards, and risks of exposure to lead, metals and substances mined, 

generated, smelted, processed, released, dumped, deposited, handled, stored, treated, 

transported, loaded, unloaded and disposed of by defendants;

(g) Doe Run defendants mined, generated, smelted, processed, released, dumped, deposited, 

handled, stored, treated, transported, loaded, unloaded and disposed of the lead, metals, 

and substances aforedescribed in a harmful and dangerous manner;

(h) Doe Run defendants violated environmental standards, statutes and regulations, including 

but not limited to: section 643.151 Revised Statutes of Missouri stating that it is unlawful 

to pollute the air; 10 CSR 10-6.010 entitled “Ambient Air Quality Standards,: and 10 

CSR 10-6.120 entitled “Restrictions of Emissions of Lead From Primary Lead SmelterRefinery Installations.”
19

her son suffered from being poisoned, and because “[n]obody should make money off of 

kids suffering.” 

The Smelter & The Doe Run Company Partnership

At the time the children sued, the Herculaneum smelter had been in operation for 

over one hundred years, processing lead ore concentrates into purified lead.9

 St. Joseph 

Lead Company, later named St. Joe Minerals Corporation, owned and ran the smelter 

until 1986, at which time the newly-formed Doe Run Company partnership assumed 

ownership and operation of the smelter. This general partnership, with various different 

partners, owned and ran the smelter for eight years, from November of 1986 until March 

of 1994. The current action is against three of the partners from this partnership period: 

Fluor Corporation, A.T. Massey Coal Company, and Doe Run Investment Holding 

Corporation (DRIH).10 The children advanced two theories of liability. They first sued 

each defendant separately, seeking to hold each defendant liable based on the defendant’s

and the partnership’s negligence during the time each defendant was a partner. The 

children sued Fluor on an additional “domination” theory, seeking to hold Fluor liable 

because of its complete and pervasive control of its subsidiaries that were partners in the 

Doe Run partnership.

 9 In March of 1864, during the Civil War, a group of New York investors founded the St. Joseph Lead 

Company, a mining company and predecessor to The Doe Run Company. The company’s original lead 

mine and smelter operations were located at Bonne Terre, Missouri. In 1886, the trustees approved local 

management’s proposal to form a small company, to establish a mine on Doe Run Creek. Around 1890, 

this company began extensive drilling in the vicinity of Flat River, now Park Hills, Missouri, and

discovered a rich body of ore. Construction of the Herculaneum smelter followed in 1892. The smelter 

operated continuously for the next 121 years. 

A source outside our record reports that operation at the smelter ceased and the smelter closed at the end of 

2013. Leah Thorsen, Smelter’s Closure is End of Era in Herculaneum, St. Louis Post-Dispatch, December 

15, 2013. We mention this for the reader’s benefit. Obviously, we do not consider matters outside the 

record in our consideration of this appeal.

10 In all, the children sued eight entities; they proceeded to trial against only three: Fluor, Massey, and 

DRIH. Massey is now known as Appalachia Holding Company. 
20

The Doe Run partnership conducted a lead business of wide-ranging proportions 

and on a far-reaching scale, both nationally and globally. When forming the partnership, 

the partners combined their respective lead businesses, and contributed a number of their 

assets, including the Herculaneum smelter to the partnership. The resulting partnership 

owned and controlled many of the lead mines in Missouri, as well as the Herculaneum 

and the Buick smelters – two major smelters in southern Missouri.11 

The two original partners of the Doe Run partnership were Homestake Lead 

Company of Missouri and St. Joe, a wholly-owned subsidiary of Fluor.12 Over the life of 

the partnership, the two original partners transferred or sold all or part of their interest in 

the partnership. The transfers on the St. Joe side of the partnership were all to various 

subsidiaries within the Fluor corporate family. Fluor purchased Homestake’s entire 

interest in the partnership in 1990. The particulars of the partnership history – when and 

how the various partners came into the partnership – are not especially relevant. More 

important is the fact that the three defendants were partners at some point during the 

partnership, and that various subsidiaries of Fluor were partners during the entirety of the 

partnership. The children contend Fluor so dominated its subsidiaries that Fluor 

effectively was a partner, and therefore liable, for the entire duration of the partnership. 

In order to complete the Herculaneum story, we set forth a brief recitation of the 

partnership’s historical background in Appendix C. 

 11 The Buick smelter was located in Boss, Dent County, Missouri. Generally, smelters are classified as 

either “primary” or “secondary” smelters. A “secondary” smelter is one that smelts scrap metal and 

materials rather than ore from the ground. Smelters like the one at Herculaneum that smelt ore are referred 

to as “primary smelters.” The decision where to base primary smelting operations – at Herculaneum or at 

Buick – was one of the early decisions confronted by the new partnership. The Buick smelter was located 

in a relatively unpopulated area. The partnership chose Herculaneum, however, because of the amount of 

lead that could be smelted there. Internal documents expressly note the choice was profit-driven. 12 Fluor had acquired St. Joe in 1981.
21

Fluor’s Influence over Partnership

A partnership committee ran the partnership until 1990.13 Initially, the St. Joe 

representatives on the partnership committee were St. Joe employees. That soon 

changed. By February of 1988, St. Joe had appointed three high-ranking Fluor officials 

to be its representatives.

14 The insertion of Fluor personnel into partnership committee 

roles, while not improper, signaled a change in Fluor’s involvement with the partnership. 

Although not a partner until 1990, Fluor was extensively involved in partnership affairs 

prior to that time, to the exclusion of named partners St. Joe, Massey, and DRIH. Fluor 

was repeatedly referred to as being a partner, its approval was needed for partnership 

projects, and it received partnership cash distributions. Once Fluor purchased 

Homestake’s partnership interest in 1990, and even after Fluor transferred its partnership 

interest to a wholly-owned subsidiary, Fluor considered and represented the Doe Run 

partnership as “100% Fluor.” Fluor treated Doe Run as a corporate subsidiary, and 

continued to be extensively, if not exclusively, involved in running the partnership. We 

provide a summary of Fluor’s influence over the partnership in Appendix D. 

Smelting Process & Emissions

Missouri probably has the best lead ore in the world. A large deposit of highgrade lead ore is located in southeastern Missouri. The essential business of the 

Herculaneum smelter was to process that ore into purified lead. The smelting process is a 

multi-step process, which begins at the mine site. Once the ore is brought to the surface 

 13 The partnership committee stopped meeting and ceased to exist in 1990. See Appendix D for further 

details. 14 The three Fluor officials appointed to the partnership committee were: Leslie McCraw, then president of 

Fluor; Robert Guyett, the chief financial officer; and Vincent Kontny, a high-ranking officer and later 

president of Fluor.
22

of the mine, workers grind it up to a fine consistency, somewhere between the 

consistency of table salt and baby powder. Workers then run this ground-up rock through 

a chemical process, which separates out the lead from rocks and other materials, to form 

lead concentrate. Workers dry the lead concentrate to a consistency of wet beach sand 

and then load the concentrate into trucks or rail cars for shipment to the smelter.

The high-grade lead ore in Missouri is actually lead sulfide by constitution. The 

smelting process removes the sulfur and other trace metals present in the ore, in order to 

produce pure lead. Once the lead concentrate arrives at the smelter, it is dumped out of 

the trucks or rail cars. Smelter workers then load the material onto a conveyor-belt 

system, which moves the material through the smelter. The lead concentrate is first 

conveyed into the sinter plant building. There, the lead concentrate goes into a sinter 

machine, which heats up the concentrate to a very high temperature, burning off the 

sulfur.15 During this process, the lead concentrate partially melts and becomes fused 

together. This fused-together material, called sinter, is broken up into fist-sized material, 

and then conveyed over and fed into the blast furnace. The blast furnace turns the sinter 

material into a molten, metallic form. The molten material that comes out of the blast 

furnace is still not pure lead, however. Trace metals and other organic materials, such as 

copper, zinc, cadmium, and arsenic, are still present. To separate and remove those trace 

metals, the molten lead is placed into a kettle and run through a refining process. In the 

end, one has purified lead. 

One word concisely describes the smelting process: dusty. Or better yet, two 

words: extremely dusty. Lead-containing dust is everywhere throughout the entire 

 15 The burnt-off sulfur is in the form of sulfur dioxide, which has a very strong odor. This is what the 

residents smelled in the community. 
23

smelting process. And once that dust gets into the air, it disperses into the surrounding 

community. 

Emissions from smelters are divided into two general categories: point-source 

emissions and fugitive emissions. Point-source emissions are those that are captured, put 

through some sort of collection device or system, and then sent up and discharged out a 

chimney, called a stack. Fugitive emissions are everything else – those emissions that are 

not captured and sent up the stack, but rather escape the facility to the nearby community 

in any other manner. Fugitive emissions come from any number of sources at the 

smelter. For instance, unloading the lead concentrate when it first arrives at the smelter 

may stir up and release dust into the air. To unload lead concentrate from a rail car, a 

large machine takes that car, tips it upside down, and then shakes out the concentrate. 

Although lead concentrate is usually moist, it dries out on hot days, and thus when the 

rail car is tipped over, dust goes everywhere. An individual rail car typically holds one 

hundred tons of concentrate. Workers unload the rail cars in an open, unenclosed area, 

across the street from where people live. Another source of fugitive emissions is the 

conveyor belt, which during the partnership period was not fully enclosed. The sinter 

plant and blast furnace are large sources of fugitive emissions. The sinter plant building 

is also not totally enclosed. The building has four walls, but its top is completely open. 

The sintering machine operates at 1500 degrees or more, so the building is designed to 

draw the hot air up and out of the building through the open top. It is common for lead 

dust to be everywhere in the sinter plant, and so the air that escapes is full of lead dust. 

The same scenario is repeated in the blast furnace. The roof on the blast furnace is also 

open, the room is extremely dusty, and the air that escapes is full of lead dust. Fugitive 
24

emissions also originate from slag piles and other open areas on the grounds where dust 

settles.16 The movement of vehicles in and out of the plant, kicking up dust, is yet 

another source of fugitive emissions. 

Fugitive emissions were primarily responsible for the lead contamination faced by 

the children. A model predicted that up to ninety percent of the lead contamination 

within one mile of the Herculaneum smelter came from fugitive emissions. As explained 

at trial, lead-containing fugitive emissions settle relatively quickly and relatively close to 

the smelter. Fugitive emissions, unlike the point-source emissions from the stack, 

generally originate at a low height above the ground, and disperse without velocity 

behind them.17 Without height and velocity, the impact of the fugitive sources tends to 

be much closer to the facility. Furthermore, lead sinks. Lead particles are very heavy 

and quite dense, and therefore descend to the ground fairly quickly. 

Lead dust emitted from the Herculaneum smelter readily contaminated homes and 

yards in the nearby neighborhoods. Lead dust settled on the streets and soil, and blew 

into the homes through open doors and windows. Moreover, if not blown away or 

washed away with the rain, lead accumulates, forever remaining lead – it never changes 

into any other element. 

 16 Slag is the by-product material from the smelting process. Although waste material, slag still contains 

lead that was not recovered during the smelting process. The slag at the Herculaneum smelter was gathered 

into piles. Dust can blow off those piles. Additionally, in years past, before 1981, the slag was ground up 

into a gravel or sand-like material and used as road base, and spread on icy roads for traction. Over time, 

the material on and in the roads would break down further and eventually settle as dust in people’s yards. 17 Point-source (stack) emissions and fugitive emissions disperse and settle in different ways. Stacks tend 

to be directed in an upward direction, so the emissions have a velocity behind them in order to go straight 

out of the stack. Furthermore, stacks are high and thus disperse the toxic chemicals into the atmosphere at 

a high elevation. Emissions from stacks, therefore, disperse and settle a distance away from the plant. 
25

Increase in Production 

Production at the Herculaneum smelter increased forty percent between 1981 and 

1989. In 1988, the smelter produced 236,000 tons of lead, yielding a net income of 60 

million dollars for Doe Run. Lead production reached a record high in 1989, with the 

smelter producing an “impressive” amount – 248,572 tons – of lead. By 1989, the 

Herculaneum smelter was the largest lead smelter in North America, and one of the 

largest in the world.18 This increased production coincided with an increase in market 

prices and profitability. 

The increased production produced a staggering amount of emissions. In 1987 

alone, the Herculaneum smelter emitted 179 tons of lead emissions. Of this, 98 tons were 

fugitive emissions that poured out into the surrounding neighborhood. The smelter 

emitted the same or similar amounts of fugitive emissions every year in the 1980s. 

Ninety-eight tons is equivalent to approximately four or five tractor-trailer truck loads of 

lead dust. 

It was during this time period of increased, record-high production and increased 

market prices, that Doe Run came under growing pressure from regulatory agencies to 

reduce emissions of hazardous materials from the Herculaneum smelter. 

National Ambient Air Quality Standards

The United States Congress in 1970 enacted the Clean Air Act, which required 

the Environmental Protection Agency (EPA) to set national ambient air standards –

regulatory limits – for certain pollutants.19 In 1978, the EPA set the maximum 

 18 Fluor issued a press release in May of 1990, in which it stated that Doe Run, as the largest fullyintegrated lead producer in North America, had approximately 60% of the total U.S. market.

19 Officially, these standards are called National Ambient Air Quality Standards. 
26

permissible air concentration of lead at 1.5 micrograms of lead per cubic meter of air, 

averaged over a quarterly period. The EPA required smelters to meet this 1.5 level at the 

fence-line of their facilities. The fence-line is the boundary of the facility – the line 

between the smelter property and the surrounding neighborhood. The EPA adopted this 

particular 1.5 level to protect the health of those most sensitive to lead exposure, 

particularly young children. Doe Run and the smelter never met this national 1.5 

standard at any point during the partnership period.

Lead Industry: Knowledge of Dangers & Fight against Regulations

Testimony at trial confirmed that the lead industry has long known the dangers to 

children posed by lead. In the early 1900s, journal articles around the world recounted 

studies of children who had been poisoned by lead paint. In 1908, at a time when child 

labor was quite common, National Lead banned children from working in leaded areas of 

their plants.20 The lead industry has also long known that smelters’ emissions pose a 

danger to surrounding communities. In early days, farmers sued smelters when their 

cows died after ingesting grass covered with lead and other toxins emitted from the 

smelters. 

The Herculaneum smelter and its ownership groups have long been an integral 

part of the lead industry. In 1928, various lead producers and users formed the Lead 

Industries Association (LIA), a trade association designed to ensure that members’ lead 

products remained shielded from public attack and from competition.21 High-ranking

 20 National Lead operated lead mines and smelters, and produced pigment for paint. 21 The LIA represented a whole series of industries, such as smelters, paint manufacturers, and battery 

makers, that depended upon or sold lead. 
27

executives from the Herculaneum smelter were directly involved in the association from 

its inception. This involvement continued into the partnership period. 22 

The lead industry’s fight against regulation is equally longstanding. From the 

1920s all the way through the partnership period, the lead industry has continuously, 

consistently, and aggressively fought any attack on lead – be it from medical studies, 

negative publicity, or proposed regulatory actions.23 The industry’s efforts included a 

“full frontal assault” in the late 1970s on the EPA’s proposed ambient air standard. The 

association’s environmental committee met specially in 1977 and devised an all-out 

public-relations effort in opposition to the planned regulations, to convince the regulators 

and the public that the proposed standard would be costly for the industry and would 

likely hurt local economies by jeopardizing employment and the tax base. The industry 

challenged the proposed ambient air standard even though the industry knew the standard 

 22 The first president of LIA was also president of the St. Joseph Lead Company, which operated the 

smelter. He was replaced in the late 1940s by another executive from St. Joseph. The secretary of the 

association during the twenties, thirties, and forties was also from St. Joseph. This involvement in the 

association’s leadership continued into the partnership period. Jeffrey Zelms, president of Doe Run, served 

as president and chairman of the LIA during the partnership period. Daniel Vornberg, the partnership’s 

director of environmental affairs, served on the association’s environmental health committee throughout 

the 1980s and early 1990s. The partnership itself, upon formation in October of 1986, agreed that the 

company become a member and participate in the LIA.

23 The association’s efforts were numerous and wide-ranging. From the beginning, they approached 

legislators who were concerned about lead and asked them not to pass legislation. They visited and 

challenged physicians who claimed that their young patients had been poisoned by lead, insisting that the 

physicians were mistaken and that what they were seeing was not really lead poisoning. The association 

even threatened physicians with libel suits if the physicians persisted in their claim that children were being 

poisoned by lead. In one famous example from 1943, the association threatened Dr. Byers of Boston with a 

million-dollar suit. Byers, a Harvard physician, had published a widely-publicized article about children 

who were poisoned by lead and had permanent damage. In that report, Dr. Byers stated that hyperactivity 

and attention problems were a lasting legacy of having ingested lead. Dr. Byers felt so threatened by the 

association that he did not publish another article about lead for ten years. The association, from its 

inception, was also active on the public-relations front. In the 1930s, the association ran a massive 

promotional campaign to promote the use of lead paint and shape public opinion in favor of lead paint, 

even though numerous medical articles showed that children were being poisoned by lead paint. The lead 

industry strenuously opposed efforts to remove lead from paint and gasoline at every turn, from as early as 

the 1920s. They argued that the movement to remove the lead was in response to researchers who did not 

understand the social, economic, or health effects of low-level lead exposures. Indeed, by claiming that it 

could not be shown that lead posed a long-term danger, the industry managed to get lead back in gasoline 

after a two-year ban in the 1920s. The industry’s opposition persisted for 50-60 years, until the late 1970s 

and early 1980s, when lead was finally removed from paint and gasoline. 
28

was selected to protect children, and that mounting evidence showed that children were 

developing problems at very low levels of lead exposure. 

Then came the Needleman report. Dr. Herbert Needleman, an eminent physician, 

released a very critical study in 1979 that put to rest the idea that lead could be used

safely. Dr. David Rosner, a public-health expert, characterized Needleman’s study as 

very damaging and important because it convincingly demonstrated that lead was 

dangerous at much lower levels than previously realized. According to Dr. Rosner, the 

industry was outraged. The study undermined the industry’s arguments that exposure to 

lead was from some other source, such as lead paint, and that lead was a problem of the 

past. The industry also feared that evidence of low-level damage meant that the 

government might lower the ambient lead level even further and take lead out of 

gasoline.

In fact, the government did require the removal of lead from gasoline. And once 

all lead was removed from gasoline, lead in the air declined. And then, as airborne lead 

declined, so did the lead content of children’s blood. All of this demonstrated that 

reducing lead in air effectively protected children. Dan Vornberg, the environmental 

manager at St. Joe and later director of environmental affairs for the Doe Run 

partnership, bemoaned these results, writing, “The most difficult data to deal with will be 

a study which has been represented to show that children’s blood levels are dropping in 

strict correspondence to air lead decrease and gasoline phase down.” 

Despite mounting evidence of the dangers and detrimental effects of lead, even at 

low levels, the industry continued its fight. In 1983, the association discussed a threeyear public-relations campaign to try and raise lead’s “pitiful” image. The proposed 
29

campaign came on the heels of a plethora of articles reporting the dangers of low-level 

lead, and at a time when, in Dan Vornberg’s words, multimillion-dollar lawsuits were 

“mushrooming” and anti-lead regulations were “epidemic.” The lead industry’s fight 

against regulation and its challenge to the conclusion that children were being affected by 

lead continued into the partnership period. In 1987, the partnership, along with other 

industry allies, sponsored research to create uncertainty and call into question the 

scientific consensus on the dangers of lead established by Dr. Needleman and other 

scientists. Ultimately, researchers funded by the lead industry published a series of 

articles stating that lead did not cause neurobehavioral problems in children. 

The EPA re-evaluates the ambient air quality standard for lead every five years. 

The agency first revisited the lead standard in 1983, and considered lowering the level 

below 1.5. In 1987, the agency considered lowering the standard to 0.5. The lead 

industry fought the EPA at every turn. Doe Run especially opposed lowering the 

standard. In writing about the standard and Doe Run’s strategy, Dan Vornberg noted a 

half-billion dollar cost to primary smelters should the EPA implement a 0.5 standard. 

Based on the proposed cost, and what it saw as a “minimal” reduction in blood lead 

levels from the measures, Doe Run suggested the following alternative approach: 

The approach suggests that in lieu of the 0.5, if you meet the 1.5 standard, 

you take other steps ONLY if the blood leads of the children in the 

community are elevated. If a survey shows no problem, then nothing 

further is required. If specific children are elevated, then specific steps 

should be taken to help them – buy out, resodding, education on cleaning, 

etc.

This could prevent very large expenditures for air pollution control 

equipment and broad scale soil cleanup where there are no public health 

problems.
30

“Canaries in the coal mine” is how Dr. Rosner characterized Doe Run’s proposed 

strategy. He explained that Doe Run was essentially going to use the children as guinea 

pigs to find out whether or not a problem existed. Waiting for the children to be injured, 

according to Rosner, was bad public-health policy and immoral. Dr. Rosner explained 

that the proper public-health approach was to make sure that children did not get 

poisoned in the first place, because lead poisoning is permanent. You do not recover. 

Doe Run should have been looking for ways to prevent the lead exposure, and making 

sure the children were not injured. 

Evidence of the detrimental effects of lead continued to accumulate in the late 

1980s. A study, published in The New England Journal of Medicine in 1988, indicated 

that no clear threshold may exist below which mental development is not adversely 

affected. A memo circulated throughout the lead industry, reporting on recent studies, 

stated: “As little as one-tenth ppm lead exposure can impair mental development in 

newborns. This damage is believed to be permanent.” A study published in 1990, 

reported in both The New England Journal of Medicine and reprinted in The Los Angeles 

Times with the headline “Lead Exposure May Be Permanent, Study Finds,” noted that 

childhood exposure to high lead levels resulted in inferior performance, such as failure to 

graduate from high school, increased absenteeism, reading disabilities, and low scores on 

tests measuring vocabulary, grammatical reasoning, fine motor skills, and hand-eye 

coordination. The study concluded that exposure to lead in childhood was associated 

with deficits in central nervous system functioning that persist into young adulthood. 

High-ranking Doe Run officials received copies of all these studies. 
31

After years of insisting that lead was safe, the industry changed its public message 

in 1990. Jeffrey Zelms, then president of Doe Run and chairman of the LIA, in testimony 

before the Senate oversight committee as chairman of the LIA, recognized that lead was a 

toxic material. Dr. Rosner explained that LIA’s express recognition of lead as a toxic 

material was a very new position. Until this point in time, Rosner explained, the LIA had 

denied virtually every attempt to identify lead as a toxic material, except in very, very 

high doses. The industry acknowledged they had, in some sense, lost the scientific battle. 

The industry could no longer provide alternative theories why children were developing 

lead poisoning. And so the industry switched approaches, and began explaining away the 

problems with lead as a problem from the past. According to Rosner, the industry 

blamed the dangers to children on past events, and argued that the industry had reformed 

its ways and was now safe, and therefore should not be held responsible. Rosner 

remarked on the irony, that in touting the industry’s advances and increased 

environmental awareness, the industry tried to take credit for what had been imposed on 

them – the removal of lead from paint and gasoline – measures they had opposed at every 

turn. 

Despite having publicly acknowledged that lead was toxic, the industry 

nevertheless continued its fight against regulation. They still advanced the notion that 

lead production involved little danger to the community. The lead industry knew in 1990 

that 45% of children living around smelters in the country had blood lead levels over 10, 

yet the industry persisted in fighting any changes in the ambient air standard or in the 

CDC’s level of concern. The industry viewed the EPA’s proposed revision of the air 

standard downward to 0.5 to be of only marginal benefit to the few people who lived in 
32

very close proximity to lead facilities and of no benefit whatsoever to the efforts to 

reduce blood lead concentrations across the country. In the industry’s view, only 150 

children would be minimally aided by revising the ambient air standard. The EPA 

ultimately did not change the standard. Continuous opposition by the lead industry 

created enough confusion and obfuscation that the EPA was never able to revise the 

standard. The lead industry also pressured the CDC to not adopt a new, lower level of 

concern. The industry argued that the potential effects of blood lead levels in the 10-15 

range remained subject to scientific debate. And thus, because of this uncertainty, the 

CDC should retain the then-current level of concern, which was 25. According to Dr. 

Rosner, the industry’s argument was all too familiar. Dating back to the 1920s, whenever 

faced with detrimental news or information, the industry argued that controversy still 

existed, all in an attempt to stave off further regulation. But, as Rosner explained, by the 

early 1990s, no scientific debate existed about the detrimental effects of blood lead levels 

in the 10-15 range. The only debate was that which the lead industry tried to foment. 

State Implementation Plan

 Now let us turn to Herculaneum. The Clean Air Act required the state of 

Missouri to develop a plan – called a state implementation plan – for reducing the amount 

of lead in the air to meet the national standard. Responsibility for preparing Missouri’s 

plans fell to the Missouri Department of Natural Resources (DNR). DNR officials 

worked with the lead industry in Missouri, including the Herculaneum smelter, to gather 

data, identify their emissions, determine ambient air levels, and then formulate an 

attainment plan.
33

Air monitors placed around Herculaneum all showed excessive amounts of lead in 

the air. Officials completed a five-year implementation plan for Herculaneum in 1981. 

The plan called for a series of control measures designed by the DNR and EPA to reduce 

airborne lead levels. Initially, the implementation plan required the Herculaneum smelter 

to meet the national 1.5 standard by 1984. The smelter later received a two-year 

extension of this deadline. Dan Vornberg wrote in 1985 that it was “unlikely” that the 

Herculaneum smelter could meet the national standard by 1986, or “at any time” under 

the current regulations. And indeed, the smelter did not meet the national standard in 

1986. In fact, Doe Run and the smelter never met the national 1.5 standard at any point 

during the partnership period. Mr. Vornberg never told the EPA, the DNR, or the 

community that he thought the smelter could never meet the standard.

Violations

The DNR eventually cited Doe Run and the smelter in June of 1989, for 

impermissible air lead levels. In fact, Doe Run was cited by two different regulatory 

agencies in the late 1980s for lead-related violations: first by OSHA, in 1988, and then 

by DNR, in 1989.24 OSHA cited Doe Run for violating nearly every section of the 

OSHA lead standard. OSHA issued 55 citations in all, representing some 300 instances. 

The citations covered four major areas: record-keeping, failure to abate, medical removal, 

and willful noncompliance with standards.25 OSHA levied one of the highest fines in the 

 24 OSHA is the federal Occupational Safety and Health Administration. 25 Among the violations were: exposing employees to lead up to seventy-one times over the permissible 

exposure limit; providing improper respirators; failing to implement engineering and work practice controls 

to reduce and maintain employee exposure; failing to establish and/or implement written compliance 

programs to reduce lead exposure to permissible levels; failing to adequately monitor; failing to provide for 

cleaning and/or disposal of protective clothing, and the improper cleaning of that clothing on other 

occasions; failing to clean surfaces of accumulated lead, and improperly doing so on other occasions; 

failing to prevent cross-contamination between work and street clothes; failing to timely notify employees 
34

history of the agency – nearly 2.8 million dollars. Just over a year later, in June of 1989, 

the DNR issued a notice of violation to Doe Run and the Herculaneum smelter, for 

violating the national 1.5 standard. The DNR required Doe Run to pay a penalty, which 

Doe Run succeeded in getting reduced by half. The DNR also required Doe Run to 

submit a revised implementation plan that promised installation of control equipment or 

reduced production levels necessary to meet the national standard. By this time, 

regulators believed it urgent that the smelter comply with environmental standards, 

especially the national ambient air standard. The EPA asserted that Doe Run’s 

Herculaneum smelter was one of the top ten polluters in Missouri. Indeed, in 1989, the 

entire St. Louis region exceeded the national 1.5 standard simply because of the 

Herculaneum smelter. 

The partnership, like the lead industry in general, was concerned about the impact 

of regulations and the proposed downward revisions of the ambient air standard. The 

children presented evidence showing the partnership’s disdain for regulations, with Doe 

Run officials developing strategies to get around requirements they deemed “excessive” 

and “draconian.” As with the lead industry in general, the partnership disagreed with the 

1.5 ambient air standard – even to the point of arguing it should not apply to them. The 

partnership believed the “unachievable” air lead standards jeopardized the world-wide 

competitiveness of the U.S. lead-smelting industry. Yet Doe Run knew that if it did not 

improve its airborne lead emissions, regulators would likely order them to comply with 

the national standard, without regard to the economics or feasibility of the order. At a 

time of high market prices and record-level production, the partnership committee 

 

of high blood lead levels, and failing to promptly remove those employees with high levels of lead in their 

blood. 
35

worried that regulators would draft a plan that Doe Run could not “afford,” and that EPA 

intervention would result in the smelter’s closure. The regulatory pressures to reduce 

emissions came at a time when Fluor expressed a desire, in October of 1989, for the 

partnership to be a “low-cost producer.”26 

Ultimately, partnership officials and the DNR fashioned a new implementation 

plan that committed Doe Run to eight projects designed to bring the plant into 

compliance with the national standard by December of 1993. For example, the DNR 

ordered the partnership to install a new sinter plant system to reduce the levels of 

airborne lead emissions in the Herculaneum area. Doe Run expected revisions to the 

sinter plant to eliminate 78% of the fugitive emissions. By 1989, Doe Run knew what its 

emissions were, where those emissions were coming from, and they clearly knew that the 

smelter violated the national standard. Despite this, the partnership delayed. Despite 

promises of eight to ten million dollars in environmental controls, the partnership 

committee postponed authorization for expenditures and equipment upgrades. 

Air Contamination in Herculaneum

&

The Fence-Line Monitor 

We next consider the air and soil contamination in Herculaneum. To measure the 

amount of ambient airborne lead and determine the smelter’s compliance with the 

 26 Some mention should be made that as early as April 1989, Fluor considered selling its interest in the 

partnership. A potential buyer visited the site in June of 1989. Allegedly, Doe Run decreased production 

to make the site more appealing, and the partnership withheld environmental material from the potential 

buyer. The partnership also looked into the economics of shutting down the smelter. Officials knew that 

the shutdown and cleanup of the Bunker Hill facility in Idaho cost 100 million dollars. Doe Run officials, 

however, believed they could shut down and clean up the Herculaneum smelter for as little as $20 million 

dollars, provided the community “didn’t turn on [them] at the eleventh hour and demand a pristine clean 

job.” Officials at this time assumed the Herculaneum smelter would operate for another twelve to fifteen 

years, and believed that in the end they could “cut a deal” with the EPA for the orderly run-out and shutdown of the smelter. 
36

national ambient air standard, officials placed monitors at various locations throughout 

the town. To comply, a facility must comply everywhere, even at the point of maximum 

ambient air concentration. An air-pollution control expert explained that the maximum 

ambient air concentration will tell the facility what could secure its compliance. He 

further explained that to find the maximum concentration of fugitive emissions from a 

facility, one should look at the fence-line first, and then work out from there. Typically, a 

fence-line monitor will be the monitor with the most fugitive emissions. 

But no official fence-line monitor existed at the Herculaneum smelter until 1992. 

Prior to this time, the closest monitor to the smelter was located at the high school, about 

one-half mile away. Moreover, smelter officials – both before and during the partnership 

period – resisted efforts to place a fence-line monitor. 

Indeed, smelter officials opposed a fence-line monitor from the inception of the 

national ambient air quality standards. In completing the smelter’s implementation plan 

in 1982, state regulators requested a monitor be placed across the street from the smelter, 

just northwest of the plant, at a point where, according to models, the maximum ambient 

air concentration of lead would result from fugitive emissions from the plant. Dan 

Vornberg, then St. Joe’s environmental manager, expressly rejected this request on 

numerous grounds, including the fact that management was somewhat concerned about 

that sector because it was so close to some of the process emissions, and because 

management believed the standard to be unreasonable and much more stringent than 

necessary to protect public health. Vornberg also refused the request because no publichealth problems existed in the community due to lead emissions from the smelter. 

Notably, Vornberg acknowledged that liability and the possibility of community legal 
37

action were major reasons for not wanting a public record of any data well above the 

national standard. 

Opposition to a fence-line monitor carried forward well into the partnership 

period. In December of 1986, Dan Vornberg, by now Doe Run’s director of 

environmental affairs, and his coworker, Jim Lanzafame, noted that Doe Run might be 

able to avoid placement of the fence-line monitor if they could fence off certain areas 

from the public where maximum levels would be found. In May of 1988, Lanzafame 

stated that Doe Run was “still adamant about not installing the fence-line monitor until 

after the controls were in place.”

Smelter officials knew fence-line readings would far exceed the national standard. 

To begin, after the EPA established the national lead ambient air standard, environmental 

officers from the smelter toured other smelters in the country and learned of the smelters’ 

problems in meeting the national standard. For instance, upon touring the Bunker Hill 

smelter in Idaho, Dan Vornberg learned that the Bunker Hill smelter had a fence-line 

monitor that averaged well above the national standard. Bunker Hill personnel expressed 

little hope of their fence-line monitor ever reaching the national 1.5 standard.

Beyond this, the smelter in 1979 had privately placed its own monitor across the 

street from the smelter, at a building it owned, referred to as the environmental building. 

The monitor at this building was at or very near the proposed location for the northwest 

monitor – near the smelter and significantly closer to the plant than the high-school 

monitor, or any other monitor being used and reported to the state of Missouri and the 

EPA. The readings from this private fence-line monitor far exceeded the national 

standard. In October and November of 1979, shortly after the EPA established the 
38

national standard, the quarterly average ambient air level of lead at the private fence-line 

monitor was 32.3, more than twenty times the national standard of allowable ambient 

lead. The average for the entire 1979 calendar year was 16.6, more than ten times the 

national standard. In 1981 and 1982, Dan Vornberg conceded that the data from this 

private monitor was “unacceptable.” 

Smelter officials convinced the DNR to use the high-school monitor as the closest 

official monitor, and in late 1986, the EPA agreed to “passively support” this location for 

demonstrating attainment of the federal standard, despite the fact that models indicated 

that maximum levels would be at the old environmental building. A true fence-line 

monitoring station was not established until the fall of 1992, when the EPA and the DNR 

forced the partnership to install a monitor closer than the high school. The first level at 

this location, at the end of 1992, was 5.5. By this time, the smelter had installed some 

air-emission control equipment. The level would likely have been higher before the 

equipment was installed. Even with the equipment in place, the levels were more than 

three times the national standard and allowable limit of 1.5. 

Soil Contamination

The smelter contaminated not only the air in Herculaneum, but also the soil.

In 1984 and 1985, smelter officials, under Dan Vornberg’s leadership, conducted 

lead testing on dust and surface soil samples taken from areas around the smelter, such as 

streets and under swing sets, where children were known to play. The levels were high 

throughout the community. Analysis of the samples revealed lead levels ranging from a 

low of 50 ppm to a high of 9250 ppm.27 To place these levels in context, the EPA in 

 27 The levels of lead in soil are measured in terms of “ppm,” meaning parts per million.
39

1989 set the soil cleanup level for superfund sites at 500-1000 ppm, meaning the EPA 

required removal and replacement of soils containing levels of lead greater than 500 ppm. 

Smelter officials plotted the results on a map and then divided the town into four pieshaped sectors around the plant, centered on the smelter stack. The average lead values 

in each sector, for the area within one-half mile of the stack, were all very high: 1458 

ppm for sector A; 2258 for sector B; 2239 for sector C; and 1822 for sector D. As to the 

particular children involved in this lawsuit, levels are available for locations at or 

near the homes of eight of the children. Those levels ranged from 1010 to 4720.28 

Although these particular children were born, and resided at these locations after this 

testing was conducted, Dr. Rodney J. O’Connor, a chemist with expertise in 

environmental chemistry and chemical safety, explained that lead in soil never really 

leaves. The only way lead leaves a site is by blowing away in the wind, dissolving and 

washing away in water runoff, or by being dug up. Otherwise, the lead remains and 

accumulates.

Dr. O’Connor characterized all these levels as being “very high.” He noted that 

scientific papers dating back to at least the 1970s showed that lead in soil could be 

dangerous. He further noted that, according to those papers, the levels of lead seen in the 

1985 testing would be deemed dangerous. Dr. O’Connor observed that, as of the 1980s, 

it was widely known that soil levels in excess of 3000 ppm were unsafe. He further 

 28 In particular, analysis revealed the following levels: 

CHILD LEVEL (ppm)

Preston Alexander 1360

Bryan and Tiffany Bolden 1820

Gabe Farmer (age 3-6) 4720

Gabe Farmer (age 7) 2010

Ashley and Lauren Shanks 2010

Isaiah Yates 1010
40

explained that by 1994, soil lead levels over 2000 ppm were also undisputedly considered 

unsafe. 

Doe Run officials knew of the soil results by at least December 1987, when the 

results were summarized in a memo directed to president Jeffrey Zelms, copied to Fluor’s 

general counsel, and forwarded to Doe Run’s director of environmental affairs, Dan 

Vornberg. The memo also noted the levels at which the EPA was requiring soil removal 

and replacement at superfund sites. We find no evidence that the partnership informed 

either the EPA or the residents of Herculaneum of these soil test results. 

The partnership conducted another soil test in 1990. This time, instead of testing 

known play sites, as previously done in 1985, the partnership randomly selected one out 

of every three houses within a half mile of the smelter for testing. The partnership 

believed that testing every third yard would provide a sufficient measure of the lead 

levels present in the neighborhood. They assumed that surrounding yards would have 

similar lead concentrations to the ones tested.

Dan Vornberg admitted the partnership expected the levels to be high. And they 

were. The tests revealed average soil lead concentrations ranging from a low of 15.5 

ppm to a high of 10,150 ppm. Of eighty-five yards tested, only sixteen came back with 

levels under 1000, and only three of those results were under 500 ppm. The other sixtynine yards had levels above 1000 ppm, and forty-two of those yards had levels above 
41

2000.29 As to the particular children involved in this suit, testing was conducted at or 

near the homes of five of the children. The levels ranged from 1132 to 4488 ppm.30 

The partnership was less than forthcoming with these results. Isaiah Yates’s 

father specifically testified that no one ever told him what the soil levels were in his area. 

Gary Walker, environmental officer for Doe Run, who characterized the results as “fairly 

high,” stated that Doe Run sent the results back to the specific residents whose yards had 

been tested. But, as to those residents whose yards were not tested, Doe Run relied on 

the residents to talk to their neighbors, or to attend a community meeting to learn of the 

results. 

 29 In all, the test results showed:

AVERAGE 

LEVEL OF LEAD

(ppm)

NUMBER OF 

HOMES

0-1000 16

1000 – 2000 27

2000 – 3000 17

3000 – 4000 15

4000 – 5000 5

5000 – 6000 2

6000 – 7000 0

7000 – 8000 0

8000 – 9000 2

9000 – 10,000 0

Over 10,000 1

30 Specifically, testing revealed the following levels: 

CHILD LEVEL (ppm) RESIDENCE & SAMPLE LOCATION

Patrick Blanks 1858 Lived at 406 Burris; sample from 411 Burris

Nathan Davis 4488 Lived at 774 Circle; sample from 773 Circle

Gabe Farmer 1132 Lived at 375 Mott; sample from 371 Mott

Heather Glaze 3462 Lived at 925 S. Main; sample from 929 S. Main

Jeremy Halbrook 2527 Sample taken from Halbrook yard
42

Blood Tests

In 1984, the smelter conducted community-wide blood testing of children living 

around the smelter. The average blood lead level was over 15 for children living within a 

half-mile of the smelter. Several children had levels above 25, and one child had a level 

of 34. 

No further community-wide screening was performed until 1992. Dr. Rodgers, 

again a pediatrician, toxicologist, and member of the CDC Advisory Committee on 

Childhood Lead Poisoning, called this lack of screening entirely inappropriate. He 

explained that the children around the smelter were a particularly high-risk population 

that should have been screened frequently and intensely – even yearly. He noted that by 

1985, it was known that children who lived next to lead smelters tended to have high 

blood lead levels. CDC guidelines issued in 1985 classified children from nine months to 

six years old who lived near a lead smelter as a high-priority group for lead screening, 

and recommended yearly testing. Dan Vornberg, Doe Run’s director of environmental 

affairs, acknowledged that he knew in January of 1985 that the CDC regarded children 

living near lead smelters as a high-priority group for screening, but explained that the 

CDC guidelines were directed to health agencies. According to Vornberg, Doe Run 

officials did not view themselves as having an annual duty to run a blood lead program. 

Moreover, with but “a few” above the 25 level of concern, Doe Run considered the 

community a “normal community” by EPA guidelines and thus, in its view, screening 

was not called for. They would recommend testing if anyone called in to the smelter to 

talk about the issue, but Doe Run did not go out in the community, knock on doors, and 

tell residents that they wanted to monitor blood levels. 
43

When asked if Doe Run informed the people in the first half mile that the average 

blood lead level in the area was above the level of concern, Mr. Vornberg stated that they 

“put that in a paper.” He could not say, however, if the people that lived across the street 

read that published scientific paper. And Doe Run held no public meetings at the time. 

When asked how the Halbrooks, who in 1986 moved virtually across the street from the 

smelter, were supposed to know about a published study, Vornberg replied: “Well, the 

community was very aware of this issue. You’d think you’d be talking to neighbors, 

talking to school officials, their alderman.” 

“We weren’t set up at that time,” Vornberg stated, as another reason why Doe 

Run did not perform further blood monitoring between 1985 and 1992. Yet, in 1986 

alone, Doe Run regularly screened about 400 employees at the smelter. Doe Run had 

equipment onsite and employed a phlebotomist full-time to draw blood. Mr. Vornberg 

ultimately acknowledged that Doe Run had the ability to do the screening. He also 

acknowledged that Doe Run got a good response when the company performed the 

community-wide screenings in 1984 and 1992, due to a team of people knocking on 

doors and taking the blood samples in the residents’ homes. But, he said, he never 

thought about sending out Doe Run’s full-time phlebotomist to do the same thing each 

year.

Partnership Actions:

What did they do? What did they fail to do?

We come now, to the heart of this case. What was Doe Run’s responsibility to the 

children of Herculaneum? And knowing the extent of contamination and the effects of 

lead on children, what did the Doe Run partnership do and what did they fail to do? 
44

Professor James Fisher, a marketing and business ethics professor, opined that a 

company such as Doe Run has a responsibility, in dealing with their neighbors and the 

general public, “to do no harm, to communicate honestly, and even openly, and to not use 

[their] knowledge to disadvantage the public....” Doe Run, itself, in 1993, represented to 

the community that “[a] company has an obligation to be a good neighbor....” and that 

the “health of every member of the community is one of our major priorities.” According 

to the children, however, Doe Run was anything but a good neighbor. They contend the 

partnership’s efforts were insufficient, and that the partnership withheld information, 

even to the point of deceit, all to protect and enhance their bottom line. The partnership 

knew substantial contamination existed in the community. They knew they were not in 

compliance with federal standards and that they were continuing to contaminate the 

community. They knew the harm that lead posed to children. Yet the partnership 

continually reassured the parents of Herculaneum that they had nothing to worry about –

their children were safe. In sum, the partnership contaminated, concealed, delayed, and 

deceived. 

Fence-line Monitor

We return to the fence-line monitor. Not only did the partnership oppose 

placement of an official fence-line monitor, and not only did the partnership know well 

that the levels recorded at their private fence-line monitor were exceedingly high and 

“unacceptable,” but the partnership kept quiet about the existence of that monitor. 

Indeed, Matthew Heilig’s mother testified she had no idea of the monitor right in front of 

her home registering a high level of lead. The partnership also kept mum about the levels 

recorded at their monitor. They did not share those levels with either the community or 
45

regulatory authorities. Dan Vornberg, Doe Run’s director of environmental affairs, 

admitted that he never shared the levels at the environmental building with anyone. In 

his words, he did not report the levels to the EPA because the agency “didn’t ask for 

them.” Instead, the levels were kept in-house. Robert Schreiber, from the DNR, 

confirmed that he was never shown the 1979 results showing a ninety-day average of 

32.3. Had he known of the results, which he described as “abnormally high,” he would 

have alerted the Missouri Department of Health and the EPA. 

Furthermore, the partnership publicized demonstrably false information. In a 

report released to the public in March of 1990, purporting to report on the air quality and 

emissions in the smelter area for the years 1988 and 1989, Doe Run declared that an 8.59 

quarterly average in 1988 was an “abnormally” high reading and was the “highest level in 

a decade.” Doe Run made this statement despite the 32.3 reading in 1979.

“Absolutely outrageous.” That is how public-health expert David Rosner 

described attempts to hide information from the community that had been contaminated 

by the smelter’s pollutants. Jim Tarr, an expert in air-pollution control, similarly opined 

that the data “absolutely, positively” should have been shared with the government, and 

that it was not appropriate to stand silent. Both experts agreed that hiding the truth 

distorted the community’s and the regulatory agencies’ appreciation of the danger. 

Withholding information limited the ability of the people in the community to make 

reasonable informed decisions in order to shield their children from the contaminated air. 

Withholding information and refusing an official fence-line monitor also skewed the very 

results that formed the basis of the implementation plan. Herculaneum’s implementation 

plan did not address the truth of the matter “by any stretch of the imagination.” The state 
46

of Missouri and the EPA simply did not realize the degree of the pollution.31 Those in 

public health depend on accurate, fair, and honest data. By not knowing the truth, the 

State operated under an “illusion” and could not adequately address the danger and 

protect the community. In sum, the partnership hid critical information about what was

being emitted from the smelter, putting the children further at risk. 

Slag Pile & Other Smelter Equipment

The slag pile on site at the Herculaneum smelter was quite large – about twenty 

feet high and covering about twenty acres. The slag material itself contained a 

percentage of lead that had not been refined. Lead dust also accumulated on the slag pile, 

as well as other open storage piles around the plant. James Lanzafame, an environmental 

officer for Doe Run, acknowledged that they did not need a computer model to tell them 

that dust would blow off the piles. Yet, the partnership did not purchase a portable 

sprayer, to spray down the piles with water, until 1992, when the partnership authorized 

$2,820 for the purchase. The partnership did not purchase a sprayer prior to this time 

because they were addressing other “bigger” sources first. 

Children from town long played and rode their bikes on the slag pile. The smelter 

placed a small, low fence around the pile in the early 1980s, to try to signal that the pile 

was a hazardous-waste area. Dan Vornberg noted that they posted signs and “tried to get 

the message out” that the community should not play on the pile. Vornberg, Doe Run’s 

director of environmental affairs, admitted that this was not a perfect system, and 

 31 For instance, in developing the implementation plan for Herculaneum in the early 1980s, the State 

believed the highest ambient air value was 2.28, when the private fence-line monitor instead showed a level 

of 32. 
47

explained that they relied on parents to inform and watch their children. A chain-link 

fence topped with barbed wire did not enclose the pile until after the partnership period. 

In the early 1990s, Vornberg estimated that it would cost Doe Run 2 to 5 million

dollars to cover the slag pile. The partnership never covered the pile. Vornberg 

explained, “At the time there was no requirement to close it.” 

As noted earlier, lead concentrate arrived at the smelter by truck and by railcar. 

The trucks kicked up dust as they traveled through the neighborhood streets. When asked 

by a resident in 1990 why Doe Run did not switch shipment of all incoming lead 

concentrate to rail, the company responded that if they shipped all concentrates by rail, 

the rail rates would rise to the point of putting the smelter out of business. In 1991, 

Vornberg proposed bringing in all lead concentrate via rail, rather than shipping some via 

truck. He noted that trucks delivered thirty percent of the concentrate and that those 

trucks generated dust. Vornberg presented his proposal to the president of Fluor and 

other partnership officials. The record does not show that Doe Run ever changed 

delivery methods. 

In December of 1993, the partnership authorized money for an enclosed 

conveyor-belt system to replace the old, existing, open conveyor-belt system. An 

enclosed system would eliminate a major source of dust within the plant, and 

correspondingly, significantly lower fugitive emissions and lead levels at the fence-line 

air monitors. Richard Coleman, a chemical engineer and consultant for smelters, 

explained that an enclosed system existed as early as 1976, and therefore the partnership 

could have replaced the conveyor-belt system much earlier than 1993.
48

“Community Outreach” 

Over the years, the partnership engaged in a number of “community outreach” 

programs. The children presented evidence showing that Doe Run was less than 

forthcoming in its outreach. Doe Run allayed concerns, downplayed the smelter’s 

contribution as a source of lead, and consistently and repeatedly assured the community 

that all was well. 

Shortly after formation of the partnership, in 1987 and 1988, Doe Run officials 

began community walks and distributed two pamphlets, entitled “My Book about Staying 

Safe Around Lead” and “What Everyone Should Know About Lead Poisoning.” These 

pamphlets described lead poisoning, its signs and symptoms, the sources of lead, 

screening programs and preventative measures to take – such as washing one’s hands, not 

putting things in one’s mouth, and eating healthy foods. Officials went door-to-door, 

handed out this literature, and asked residents if they had any concerns. Officials did not, 

however, tell them of the past and present dangers to their children of grave and 

irreversible injuries. 

In July of 1989, at the time when Doe Run had received a notice of violation from 

the DNR for violating the national air quality standard, Doe Run sent a letter to their 

employees who had children, in response to concerns raised regarding air lead levels in 

Herculaneum. In that letter Doe Run downplayed the concerns, stating simply that the 

“standards are set very conservatively ....” 

In 1990, prior to conducting the second soil study, Doe Run held an informational 

meeting to inform residents of the upcoming study. To announce the meeting, Doe Run 

distributed a letter to residents, in which Doe Run expressly stated that they were 
49

proposing the study, even though their information “indicates that there is no significant 

health problem among residents living near the smelter.” 

On a display chart for the meeting, Doe Run listed reasons for the meeting, three 

of which were: 

TO LET YOU KNOW the current status of the area’s lead health, which is 

favorable.

TO LET YOU KNOW THAT NO SERIOUS HEALTH THREAT has 

been identified for people living near the smelter.

TO DETERMINE THE BEST AND SAFEST way to ensure the 

continuing good health and well-being of every Herculaneum resident.

On another chart, Doe Run listed eight sources of lead, listing “lead smelters” last, after 

such sources as “improperly fired ceramics” and “antique pewter.” On yet another chart, 

Doe Run listed the ways in which lead entered the body, listing “breathing dust and 

fumes produced by lead smelters” last, after such items as “folk medicines,” “cosmetics,”

and “breathing dust and fumes produced when working on leaded stained glass.” Doe 

Run created another chart, listing the following measures residents could take to reduce 

their exposure to lead: “wash hands before eating,” “vacuum carpets and floors 

frequently,” “check plumbing for lead piping,” “wear a mask when scraping leaded 

paint,” “avoid using leaded ceramic pans or dishes when cooking, storing, and serving 

food,” and lastly, “keep clothes clean.” 

This last chart exemplifies the consistent message from Doe Run – that residents 

could lower their exposure to lead if they would just clean their homes and watch their 

kids. Another example of Doe Run’s misleading messages is when the partnership 

provided vacuum cleaners for the residents, free of charge. Doe Run officials simply told 
50

Nora Murray that “this will help keep your house clean.”32 Ms. Murray just thought Doe 

Run was being nice. 

Doe Run officials continued their door-to-door community walks in 1991. During 

these walks, Doe Run officials did not tell residents that exposure to lead lowered IQs. 

Officials did not tell residents that the brain effects were irreversible. Officials did not 

tell pregnant mothers that pregnancy released lead from bone. Officials did not tell 

residents that lead could impair brain function in children. When asked why Doe Run did 

not inform residents about the risks, Gary Walker, the partnership’s environmental officer 

and industrial hygienist, answered only that “we told them about what we were doing to 

try to make things better in the community.” Doe Run again emphasized that parents 

could minimize exposure to lead by cleaning their homes. Walker insisted that parents 

needed to take responsibility and spend some amount of time cleaning their homes. He 

declared the lead “may or may not be related to the smelter,” and that there were 

“multiple issues” as to why lead was present in the community. He further maintained 

that as of 1992 there were “only a few people” at the CDC levels of concern, when the 

evidence showed otherwise. He knew soil levels were high, but persisted in the notion 

that lead-based paint contributed to the elevated lead levels. He also maintained that the 

residents knew of the lead in the community because the smelter had been there for over 

a hundred years. This “had to know” position was yet another message consistently 

advanced by Doe Run – even to the point of insinuating it was the parents’ fault for 

choosing to live close to the smelter.

 32 Nora Murray, a cousin of Brian and Tiffany Bolden, also lived in Herculaneum. 
51

Soil-Abatement Program

In 1991, a year after completing the second soil study, Doe Run instituted a soilabatement program, in which they dug up and then replaced leaded soil. Doe Run 

budgeted $480,000 for the program in 1991. Out of nearly two hundred homes in the 

nearby community, Doe Run in 1991 replaced soil in only six yards, a vacant lot, and a 

one-acre field. They did not start at the homes with the highest level of lead in the soil. 

When asked why only six yards, Gary Walker explained that they, Doe Run, wanted to 

do a “pilot project” to see whether they could do a “decent” job. Paul Allen, a consultant 

for Fluor and member of the partnership committee, commented on the newly-replaced 

yards when reporting to Fluor’s president in October of 1991, expressly remarking that 

the program was “costing only a nominal amount.” 

The following year, in 1992, Doe Run again replaced soil in just six residential 

yards. When asked why, after 1991, Doe Run did not buy all the equipment they 

possibly could, and proceed to clean the entire area in 1992, Mr. Walker explained that 

they were using equipment – high lifts, bobcats and the like – that took a lot of time and 

effort to complete the job. He also blamed the rain, wash-outs, “and other things.” He 

further explained that Doe Run had hired consultants and contractors who were landscape 

people to do the soil replacement, so “there’s a learning process in getting that done.” In 

sum, he explained that Doe Run’s progress in replacing soil was limited by the type of 

equipment they were using and their knowledge about how to get started. “You’ve got to 

walk before you can run,” he protested. Dan Vornberg, the partnership’s director of 

environmental affairs, gave a similar explanation. He noted that the soil-replacement 

program was a pilot program to demonstrate the feasibility of the program. He further 
52

noted that no one else in the state had done anything, that the State was not interested, 

and that federal officials were not pressuring them. He also explained that in Doe Run’s 

view, lead in the soil only minimally raised the blood level of a child, and so soil 

replacement “wasn’t the most important thing that could be done.” Vornberg was also of 

the opinion that most of the houses had a soil lead level below 2000. The results, noted 

before, belie this opinion. 

Doe Run acknowledged that the process of removing the contaminated soil kicked 

up a lot of dust. But, Doe Run did not move families out of their homes when cleaning

up the contaminated yards. Doe Run did not perceive any risk to the residents because 

they kept the residents away from the heavy equipment. Doe Run also did not offer to 

clean the residents’ homes after completing the remediation projects. And although Doe 

Run monitored the blood levels of their own workers during the soil cleanups, they did 

not monitor the levels of the resident children. Mr. Walker characterized the workers’ 

exposure as “low.” But testing on those workers revealed an average blood level of 15. 

Dr. O’Connor, the children’s expert in environmental chemistry and chemical 

safety, opined that the soil-remediation project was not effective. In his view, it simply 

was not feasible to clean up the entire area. Dr. O’Connor explained that Doe Run may 

have replaced soil in a particular yard, but lead dust was still in the surrounding 

environment – be it in the street, the air, or an adjoining yard – and the soil replacement 

did not protect a yard from that dust. Doe Run did not retest yards after replacement to 

see if and how much lead had reaccumulated in the yards.33 And even though Doe Run 

 33 As noted in our recent decision, Doyle v. Fluor Corp, 400 S.W.3d 316 (Mo. App. E.D. 2013), soil 

remediation accelerated beginning in 2001, after the partnership period, pursuant to a consent decree 

between the smelter and the EPA. By 2007, 54 properties had been remediated. To date, nearly all 

properties in Herculaneum have been remediated except for a few at the outskirts of town. 
53

made a minimal effort at remediation, they did not explain the danger of the lead to the 

homeowners.

1992 Blood Study

In April of 1992, in conjunction with a national study, Doe Run conducted 

another blood study of residents. Doe Run planned to test those children, aged six 

months to six years, who lived within a one-and-a-half mile radius of the smelter. 

However, several parents testified that they did not know, or were never contacted about 

the test. 

Testing revealed an average blood lead level of 11.6, above the CDC level of 

concern. This average was an overall average – based on children within the one-and-ahalf mile radius of the smelter. Of those children living closest to the smelter, within the 

first half mile, ninety-one percent – thirty of thirty-three children – had lead levels above 

10. Of these thirty children, ten children had levels between 10 and 15, fifteen children 

had levels between 15 and 20, and five children had levels over 20.34 The average level 

for those children living within a half mile of the smelter was 15.6.

Doe Run issued a press release after the study, emphasizing that levels had 

decreased since 1975 and 1984. They did not point out that nearly every child tested in 

the first half mile of the smelter was above the CDC level of concern of 10.

Dr. Rodgers, the pediatrician who served on the CDC Advisory Committee on 

Childhood Lead Poisoning, concluded that these levels should have triggered 

community-wide efforts. Doe Run contended that they followed the CDC guidelines, and 

that they worked to ensure that those with blood levels above 10 were told they needed to 

 34 Those levels were 21, 23.1, 27, 28, and 28. 
54

get another blood test. Several parents, however, were never informed of the test results. 

Mrs. Shanks, for instance, never received a letter and only later learned that her daughters 

had tested at 10.2 and 10.8. Had she known that over 90% of the children living near the 

smelter, including her daughters, had lead poisoning, she would have moved out and 

sought treatment. Others, like the Alexanders, received results, but no one from Doe Run 

ever contacted them about those results. The letter, as sent, gave them no reason to be 

concerned. Their son Preston was tested twice in 1992, two months apart. His levels 

were 16.9 and 16.5. Dr. Rodgers testified that when someone tests above 15 twice within 

the same year, the CDC would say that you need to find the source of the lead and then 

get the person away from that source. And certainly the person needs to be followed 

closely. As a pediatrician, Dr. Rodgers would have told the Alexanders that they needed 

to get Preston away from the source of the lead. 

REACT Program

After this blood study, in the late summer of 1992, Doe Run hired a company by 

the name of REACT Environmental Engineers to perform a variety of functions, 

including conducting an environmental survey of households with children having 

elevated blood lead levels. Doe Run and REACT asked residents to complete a 

household questionnaire. Curiously, a number of questions had no connection to lead 

exposure.35 But in addressing the activities of household members, the questionnaire 

began by asking about every other type of potential lead exposure other than the 

 35 For instance, the survey asked such questions as whether household members smoked or used tobacco 

products, and whether household members had any pets in house. The survey also asked the highest level 

of education for the head of household, the gross household income, and the race of the children. The

survey also asked whether the resident owned or rented the house. 
55

smelter.36 And in addressing occupations, the questionnaire asked no questions 

specifically about the smelter, such as whether any member of the household worked 

there. 

Preston Alexander’s parents participated in the REACT survey. Officials 

collected paint chips and dust from the home, as well as soil and water samples. Testing 

showed that the Alexanders had no problems with lead in their water supply; the lead 

present was well within the acceptable range. The Alexanders had no lead paint inside 

their house and just a minimal, acceptable, amount of lead paint on their outside steps. 

The house dust samples, however, showed a “relatively high” lead concentration of 6030 

for the vacuum sample and a “moderate” lead concentration of 1270 for the wipe sample. 

And soil testing revealed “moderately high to high” lead concentrations of 1720 and 

3620. 

Based on these findings, the letter reporting the test results set forth a litany of 

recommendations to reduce their child’s exposure to lead in the home, including: making 

sure peeling paint was not accessible to the child, either inside or outside of the house; 

conducting an extensive one-time cleaning of the entire house; wet-mopping and cleaning 

windowsills, furniture, and baseboards twice a week; vacuuming carpets and rugs twice a 

week; washing toys daily; washing their child’s hands and face frequently, especially 

before he eats and after playing in the soil; making sure their child was not ingesting 

paint chips or soil; making sure their child ate regular meals; and making sure parental 

 36 For instance, the questionnaire first asked whether anyone painted pictures with artists’ paints, painted 

furniture or the inside/outside of the home, worked with stained glass, cast lead into fishing sinkers, 

soldered electronics or pipes, repaired auto radiators or worked on auto bodies, worked in a sewage 

treatment plant, made any pottery, performed any welding, cleaned a firearm, or visited an indoor firearm 

target range. The survey did not ask about smelting lead until the seventeenth of twenty-seven questions 

regarding household activities.
56

occupations or hobbies did not expose their child to lead. But nowhere does the letter 

even allude to the lead smelter. And nowhere does the letter suggest that parents need to 

move their children out of Herculaneum. The letter never mentions that the lead found 

could be a poison to the Alexanders’ children. No one ever explained to the Alexanders 

just how “relatively high” the dust sample of 6030 was. And no one ever explained the 

meaning of the soil numbers or the meaning of “moderately high.” Furthermore, despite 

stating the purpose of the survey was to determine the most likely sources of exposure, 

the letter never even mentions the most likely source of the lead in their home. In Mrs. 

Alexander’s words, Doe Run was conducting a lot of surveys and they were being asked 

a lot of questions, but “we had no answers.” 

The Alexanders interpreted the letter as telling them they were not keeping a 

clean home and, if they did, everything would be alright. After receiving the letter, Mrs. 

Alexander, a professional housekeeper, tore apart her home and cleaned constantly. Even 

though she believed herself a good housekeeper, she allowed Doe Run to conduct an

extensive one-time cleaning of her home. Instead of a “professional” cleaning service, as 

offered in the letter, Doe Run simply sent employees from the smelter – coworkers of Mr. 

Alexander – to clean the home. And those employees used dirty, dusty equipment from 

the smelter. The workers took equipment that was used in the smelter’s change house 

and brought it straight across the street to clean the Alexanders’ home. 

1993 “Community Interaction” Program

Doe Run officials launched a new “community interaction” program in 1993. 

Doe Run was under mounting regulatory pressure and believed it was losing community 

standing and empathy. Doe Run officials set various goals for their program, including: 
57

having 95% (but notably, not all) of children in the smelter umbrella with a blood lead 

level less than 10 (the new CDC level of concern); eliminating negligence liability; 

booking liability for the half-mile radius at appraised value of property; “optimizing” Doe 

Run’s public-relations position; reducing the possibility of a negative media campaign; 

and managing “the impact on Doe Run’s potential to operate and consequently the value 

of the company and its potential marketability to the public or another company.” 

Doe Run hired a new public-relations firm. This new firm developed a 

communications strategy for Doe Run that included messages to convey to the 

community, and then a multi-faceted approach for interacting with the community to 

disseminate these messages. The firm identified several key audiences, such as residents 

nearest the smelter, parents of young children, and residents new to the area, and then 

matched messages to these audiences. Slightly tailored for each audience, those 

messages all struck a consistent and familiar refrain: Doe Run is a credible source of 

information; Doe Run is a responsible company that continues to improve its 

environmental performance; the community is safe; Doe Run’s operation does not 

adversely affect either the health of children or property values; and lastly, most exposure 

is historical and can be avoided by careful attention during routine house-cleaning. In 

handwritten notes from a meeting with this new public-relations firm, Dan Vornberg 

ominously observed, “Perception is reality.” 

As part of this new “community interaction” program, the partnership produced 

and distributed a video entitled “Living with Lead.” In general terms, the video conveyed 

that exposure to too much lead could cause health problems. Remarkably, the video 

showed a child playing in a yard, and made it appear that it was okay for children to be 
58

playing in lead-contaminated yards. Again Doe Run deflected attention away from the 

smelter. A good portion of the video dealt with lead-based paint, and even described 

precautionary measures to be taken when remodeling homes with lead-based paint. The 

word “smelter” was used only twice in the entire video. The video stated that many or all 

women were below the CDC level of concern, but never mentioned the children of 

Herculaneum. The video never alluded to the 1992 blood test results. Instead, the video 

stated that many children in the United States were above the CDC level of concern, and 

that “most don’t live near lead smelters.” When asked about this at trial, Mr. Walker, 

Doe Run’s environmental officer, stated the video statement was correct and, in defense, 

declared: “but everybody in Herculaneum in the half mile absolutely knows they live 

near a lead smelter.” 

The partnership also published a series of newsletters called “Neighborhood 

Notes.” Portrayed by Doe Run as a way of informing residents about community events, 

Doe Run’s environmental progress, and ways to minimize lead exposure, the children 

contended these newsletters were likewise misleading. 

Over the course of four newsletters, Doe Run included a number of articles 

portraying the company as a good neighbor.37 They publicized that they were running 

experiments and soil tests at eleven homes to see how the soil could be improved, and to 

learn how to treat each yard to correct any problems. In yet another article, Doe Run 

extolled the environmental progress at the smelter, noting that newly-installed equipment 

would reduce air emissions. The focus of the measures and article, however, was sulfur 

dioxide gas, not lead emissions. In lauding their environmental progress, Doe Run never 

 37 For instance, in one article, Doe Run boasted that their employees had filled sandbags during the Great 

Flood of 1993. In another full-page article, they touted their whistle alarm, which sounded for fires and 

tornados, as a “real benefit” to the community.
59

mentioned that they had not met the air-quality standard and did not think they ever 

would. 

The articles often minimized the extent of contamination, as well as the dangers 

of lead. In announcing that company representatives would be doing “walk abouts” and 

distributing coupons good for one free rental of a rug shampoo machine, Doe Run 

downplayed the danger: “It’s our way of saying thank you for meeting with us and a way 

for you to get dust out of your home. Some of that dust might contain a small amount of 

lead.” In an article discussing their soil-replacement program, Doe Run stated that 

“some” of the homes nearest the smelter had relatively high levels of lead in the soil. 

Professor Fisher, the marketing professor and a communications expert, believed that this 

statement misled residents regarding the dangers they confronted. A lot of homes had 

high lead levels, not just “some.” Professor Fisher was also critical of the way Doe Run 

informed the community about the availability and importance of blood testing. Instead 

of conveying a sense of urgency, Doe Run had written the newsletter in a “light and 

breezy tone,” with an “alarming lack of candor.” Professor Fisher further opined that, 

given Doe Run’s knowledge that children within a half-mile of the smelter had very high 

levels of lead, this casual tone was totally inappropriate when the very grim numbers 

confirmed a healthcare emergency. Indeed, parents testified that the newsletters gave 

them no cause for concern, but instead conveyed that Doe Run was a good neighbor, and 

that there was nothing to worry about. 

Doe Run’s last newsletter, from February of 1994, is especially telling. Doe Run 

included but one article in this newsletter, an article entitled “An Expert Talks About 

Families and Lead,” in which Dr. Eugene Shippen, a physician and consultant for lead 
60

companies about the health effects of lead exposure, gave his thoughts on lead. After 

proclaiming “there is positive news about the health effects of lead exposure,” the article 

noted that yesterday’s children were exposed to dramatically higher levels of lead than 

today’s youngsters, because many sources of lead – gas, water, food cans, and toothpaste 

tubes – had been eliminated. Despite the fact that Doe Run was not meeting the airquality standard for lead, it ran an article proclaiming “today’s cities have lead levels in 

the air well below what was measured in the past.” The article goes on to declare that 

much of what is known about health problems caused by lead emissions comes from 

studies done before environmental controls were put into place, and that today’s smelters 

could not be compared to the way operations were run sixty years, or even ten years ago. 

The article then counsels that “the best defense parents have to prevent young children 

from becoming exposed to lead is close observation,” and that “one of the highest risk 

factors for young children is exposure to old lead paint.” Little is said of smelters, other 

than stating that “even with a point source such as a smelter, a community’s lead 

exposure is below what used to be normal in a major city when lead was used in products 

families were exposed to.” The overall tenor of this article – that conditions are so much 

better than what they used to be – reflected the strategy of the lead industry, and sounded

the recurring refrain of Doe Run.

As advertised, Doe Run indeed revived their door-to-door walks as a part of their 

new “community interaction” program, as a way to disseminate their messages. The

children argued that Doe Run officials, in their walk-abouts and in the informational 

packets they distributed during those walks, were every bit as misleading as in the video 

and the Neighborhood Notes. The children heard the same messages. Doe Run touted 
61

their “many projects” designed to reduce exposure to lead, including replacing soil 

around “a number” of homes. Doe Run is a responsible company. In offering coupons 

for a free rental of a rug shampoo machine, Doe Run told residents that “[k]eeping lead 

dust out of your house is one of the best ways to reduce your family’s exposure to lead.” 

Just clean. In responding to the question “How big a problem is exposure to lead?’, Doe 

Run did not mention the children of Herculaneum, but instead spoke in general terms, 

stating that “only about 200 [children] live around the 25 lead smelters in the United 

States.” The community is safe. In responding to the question “where does the lead 

come from?”, Doe Run answered that lead “comes from many places,” and then 

mentioned lead smelters as a source of lead after mentioning old water pipes and food 

cans.38 Doe Run’s operation does not adversely affect the community. When asked if 

their answer was designed to make people think that the smelter was a minor source, 

Gary Walker, Doe Run’s environmental officer, simply answered: “anybody that lives in 

Herculaneum knows the smelter is there, and they had received, by this time, information 

about the lead in soil. They were seeing people removing ... soil from yards with lead. 

They knew that this was one of the sources....” They knew. Doe Run did not mention

the current blood levels present in the Herculaneum children. Instead, they boasted that 

levels were “43 percent lower” than what they were in 1975. When asked the point of 

comparing current lead levels with levels from 1975, Mr. Walker responded: “You want 

to move forward...You want to tell people that you’re doing better.” Perception is 

reality. 

 38 In full, Doe Run’s prepared answer stated:

Lead comes from many places. In the past, lead was in gasoline and paint, which can 

chip and be eaten by small children. Old water pipes were soldered with lead, which can 

find its way into drinking water. Cans used to store food might have lead seams and that 

lead can get into food. Lead smelters also are a source of some lead in the air and in soil.
62

Buyouts

Numerous experts testified that Doe Run should have bought out the community. 

They did not. 

Richard Coleman, the chemical engineer and smelter consultant, stated that 

engineering controls alone, such as replacing and installing new equipment, would not 

solve Doe Run’s problem. Those control measures alone could not achieve the 1.5 air 

standard. According to Mr. Coleman, Doe Run had other avenues available to meet the 

national standard. For one, Doe Run could dramatically reduce production. Mr. 

Coleman noted that this meant Doe Run would likely have to shut down the plant. Doe 

Run could also expand out their property’s perimeter to a point where they complied. To 

do that, Doe Run had to buy out all the surrounding houses. In Mr. Coleman’s opinion, 

Doe Run should have done so. 

Dr. O’Connor, the chemist with expertise in environmental chemistry and 

chemical safety, also concluded that Doe Run needed to move the children to prevent 

their continuing exposure to the high levels of lead. In his view, the residents were 

endangered and cleanup was not feasible. Dr. O’Connor opined that Doe Run should 

have offered buyouts at a very early date, as soon as Doe Run knew the area was 

contaminated and that they were not going to stop contaminating the town. 

Professor Fisher, the marketing and business ethics professor, opined that if Doe 

Run had operated in the community’s best interest, they would have moved the residents 

rather than surveying them for their attitudes, as they had done during their walk-abouts. 

According to Dr. Rosner, the public-health expert, a buyout was the most logical 

course of action, given the high levels of lead in the children. In his opinion, Doe Run 
63

should have bought out the community in 1989, when Paul Allen, a partnership 

committee member, raised the idea of a buyout in response to the “very complex and 

serious environmental problem” that existed in Herculaneum. If not then, Rosner opined, 

then Doe Run unquestionably should have bought out the homes when they learned in 

1992 that nearly every child tested in the first half mile of the smelter was above the CDC 

level of concern of 10. Doe Run knew those close to the smelter were subject to high 

levels of fugitive emissions. In Dr. Rosner’s opinion, all Doe Run had to do to reduce 

that exposure was move the residents. And Doe Run could have met the national ambient 

air standard if they would just have moved the fence-line to a new plant boundary that 

was further away. Doe Run could have done just that, but decided not to. 

Dr. Rodgers, the pediatrician and toxicologist, also testified that Doe Run should 

have moved the children away from the smelter. Nathan Davis was a perfect example. 

Nathan underwent four blood tests in 1992. His levels were all quite high, at 19, 20.5, 

16, and 20. Dr. Rodgers explained that if someone with these results had come to him as 

the head of a poison center, he would have told them to identify the source of the child’s 

lead and remove the child from the source. In Nathan’s case, he would have told the 

Davis family to get away from Herculaneum. 

A primary goal of poison-prevention activities is removal – either remove the 

source or, if that is not possible, then remove the child from the source. The CDC 

published a document in 1991, entitled “CDC Preventing Lead Poisoning in Young 

Children, A Statement by the Centers for Disease Control.” The CDC emphasized 

throughout the document that eliminating childhood lead poisoning required preventing 

lead poisoning altogether. “For the child who is lead poisoned, however, efficient and 
64

effective interventions are needed as quickly as possible.” “Abatement means making 

the source of lead inaccessible to the child.” “Complete abatement of the lead hazards in 

the child’s environment is the most effective and only certain way to prevent further 

damage.” The CDC also recommended that environmental interventions be directed at 

primary prevention of lead poisoning in communities with a large number or percentage 

of children with blood lead levels greater than or equal to 10.” The CDC further 

emphasized that its focus was on the source: “The purpose of community-level 

intervention is to identify and respond to sources, not cases, of lead poisoning.” 

“Whatever mechanisms are used, the goal of hazard abatement must be to systematically 

eradicate the lead hazards in the community. Such a program will protect not only leadpoisoned children but all children – and thus safeguard the community’s future.” 

When asked if he knew a way of abatement – making lead inaccessible to people

within a half-mile of smelter – other than offering to buy out properties and moving 

families away from the smelter, Gary Walker responded, “The health department did not 

say that that was needed or necessary, that we needed to move those people ....”

Unquestionably, Doe Run could afford a buyout. Dan Vornberg, Doe Run’s 

director of environmental affairs, admitted that Doe Run had several hundred million 

dollars in sales and very large profits, and that they “had a lot of cash flow.” In 1988, 

Doe Run completely and independently financed a secondary-lead project out of the 

partnership’s cash flow. Financial reports for fiscal year 1988 show Doe Run’s net 

income at 60 to 61 million dollars.39 In 1989, Doe Run made 13.1 million dollars more 

than the partnership had projected. Professor Henry Ordower, a professor of law at St. 

 39 Net income, of course, is total income revenues less expenses – in other words, the amount of money left 

over after a company has paid all its expenses. 
65

Louis University School of Law, who teaches courses on business associations and 

corporate finance, remarked that this extra 13.1 million dollars was more than sufficient 

to buy out the town. In formulating its 1990 budget, Doe Run reduced operating costs 

and capital expenditures by a total of six million dollars. According to Professor 

Ordower, the partnership could have used this freed-up money to buy out the town. But 

Doe Run budgeted just $265,000 in its 1990 budget for buyouts. Doe Run again cut its 

budget in 1991, reducing operating costs by thirty million dollars. By September of 

1991, Fluor had more cash on hand than it could effectively invest. In 1993, Gary 

Walker, the partnership’s environmental officer and industrial hygienist, calculated a cost 

of $9,238,299 to buy out all the houses in Herculaneum. 

Substantial precedent existed for buying communities out. Love Canal, in New 

York, was bought out in 1978; Mountain View, Arizona, in the 1970s; Revilletown, 

Louisiana, in 1987-1989; Morrisonville, Louisiana, in 1989-1990; and closer to home, 

Times Beach, Missouri, was bought out in 1983. Granted, these classic examples of 

buyouts relate to the chemical industry, but towns around lead smelters had also been 

bought out. Smeltertown in El Paso, Texas, home of the ASARCO smelter, was bought 

out in 1972; and Kellogg, Idaho, home of the Bunker Hill smelting facility, was bought 

out in 1983.

Doe Run officials considered buyouts as early as 1987. In July of that year, 

Jeffrey Zelms, president of Doe Run, requested partnership approval to purchase certain 

properties surrounding the smelter. In making his request, Mr. Zelms noted reasonable 

grounds existed to believe that the EPA would promulgate regulations requiring smelters 

to create a belt around the plants for environmental reasons. Mr. Zelms wanted to get a 
66

jump on those regulations by creating such a belt a little at a time. Mr. Zelms requested 

just over one hundred thousand dollars for the project. 

The partnership committee apparently approved the request, since Doe Run began 

purchasing properties shortly thereafter. However, once purchased, the partnership 

turned around and rented out the homes. Notably, the lease contracts contained a clause

stipulating that no children under the age of eighteen could live in the home. Doe Run 

did not rent to families with children under eighteen because it was a “risk management” 

issue. Yet Doe Run never told the neighbors, or the town in general, that they were not 

renting homes to families with children because of the presence and danger of lead. Dan 

Vornberg explained: “We didn’t have the right of eminent domain. We didn’t have the 

right to destroy the value of their property by telling them it wasn’t safe to live there. 

That was their determination.” 

The issue of buyouts next arose in 1989, when Paul Allen, newly appointed to the 

partnership committee, reported on his recent trip to Herculaneum. In a letter to Les 

McCraw, fellow committee member and CEO of Fluor, Mr. Allen cited the “very 

complex and serious environmental problem” that existed in Herculaneum, and cautioned

that an all-out buyout would likely result in a massive class-action suit. He wrote: 

We discussed the idea of buying up all the property in Herculaneum where 

homes can be purchased for an average of only $38,000. However, an allout program to do this, to relocate families, raze the buildings and return 

the land to its pristine state, would very likely precipitate a massive class 

action suit. 

Mr. Allen again worried about the possibility of a class-action suit in a second letter to 

Mr. McCraw: 

All this discussion gave rise to the question as to whether the 9.1 million 

dollars for ... sinter plant revisions might be better spent on buying all the 
67

properties in Herky, locating the families elsewhere and returning the land 

to its pristine state. ...

From the discussion on November 3rd though, it appears that the idea of 

buying Herculaneum property on an all out rush basis is much too 

simplistic. Implementation of such an idea would almost certainly invite a 

major class action suit.

Indeed, Doe Run decided to not buy out the entire community. Instead, the 

partnership decided to purchase homes gradually, budgeting for only a certain number of 

home purchases per year. Moreover, Doe Run only purchased homes one house out from 

the smelter property line. And Doe Run’s purchase of properties was unrelated to the 

presence of children with high blood lead levels, even though Dan Vornberg in 1987 said 

that a buyout was one of the things to be done in response to high blood lead levels. 

Furthermore, Doe Run never solicited people in the proposed buyout zone to purchase 

their property. Instead, Doe Run waited until the owner placed their house on the market. 

Doe Run would then appraise the home, and if the appraisal met the asking price, they 

would then purchase the home. 

In the early 1990s Doe Run still only had a budgeted amount of money each year 

for buyouts. And Doe Run still did not specifically purchase property based on the safety 

of children. Rather, if a resident approached them about a potential buyout, Doe Run 

considered the proximity of the house to the smelter and the available budget. If Doe 

Run had expended their budgeted money for the year, Doe Run put people off and told 

them to wait until the following year. Doe Run told parents in 1992 that the company 

was getting out of buying houses because it was getting “too costly.” 

Even as late as 1993, Doe Run still only purchased a small number of homes. 

When asked why Doe Run did not ask people to move in 1992, when Doe Run knew of 

the high level of lead in the soil, the high fugitive emissions, and the high blood lead 
68

levels, Dan Vornberg, the partnership’s director of environmental affairs, explained only 

that Doe Run was instituting a multi-tiered program of selected purchases, soil lead 

education, plus a $20 million air lead reduction program. Furthermore, in Doe Run’s 

view, the real-estate market was robust, and people could sell their house if they were not 

in Doe Run’s buyout zone. Mr. Vornberg did not believe that residents were having 

difficulty selling their properties. The children, however, presented evidence that 

residents could not sell their homes because their property was contaminated. Mr. 

Vornberg further excused Doe Run’s actions by explaining that Doe Run did not have the 

right of eminent domain, so in their view, they could not go to people and offer to move 

them away from the area. Although Doe Run continually argued that they “could not 

force residents to sell their property,” numerous parents testified that if Doe Run had 

offered, they would have sold in a heartbeat. 

Doe Run declined to buy a home in October of 1993 despite compelling 

circumstances. A resident had approached Doe Run about the possibility of Doe Run 

buying her home. She was afraid her children were being poisoned by the lead. She 

already had a dog die from lead poisoning, and the soil level at her home was 3525. She

herself was experiencing headaches, nausea, cramps, and diarrhea. She could not sell her 

house. Doe Run offered blood testing, but told her they could not commit to purchasing 

the house in the “midst of budgets.” They also said that an environmental review by an 

outside party would help them decide if they had any responsibility with regards to her

symptoms. The Doe Run official, in memorializing the conversation, wrote that he 

“attempted to deliver some of our key messages – following CDC guidelines, making 

improvements, air lead coming down in community, trying to get more information out to 
69

them.” The official also noted that the house was not in the present buyout zone. The 

official also asked the resident if she knew the smelter was there when she bought the 

home. 

Even in the closing days of the partnership, Doe Run still had no interest in 

buying homes. Moreover, Doe Run was still laying blame at the parents’ feet. The 

Yateses’ experience is especially telling. Prior to the spring of 1994, the Yateses had no 

concerns about life with their children in Herculaneum. They then learned that their 

neighbor’s dog had died from lead intoxication. The Yateses had blood tests run on their 

children. Isaiah’s level was 13. Upon learning this, Isaiah’s father immediately called 

Doe Run and demanded a meeting with company officials. The Yateses met with several 

officials, some of whom were lawyers, in a large conference room at the smelter. The 

Yateses sat at one end of the long conference table, the Doe Run officials at the other. 

The Yateses informed the officials that Isaiah had over the allowable limit of lead, and 

they wanted to know what Doe Run was going to do about it. They asked if Doe Run 

would be interested in purchasing their home. The officials made it clear to the Yateses

that Doe Run would not. “We’re not interested in buying your property,” they repeatedly 

said. Even when the Yateses said they were just asking fair-market price, officials 

responded: “Not interested.” Officials then told the Yateses that they needed to run their 

air conditioner more. But the Yateses did not even have an air conditioner. To add insult 

to injury, one of the officials then remarked that Isaiah’s level and exposure probably 

came from the Yateses “not keeping [their] baseboards clean enough in the house,” and 

that the Yateses “didn’t keep [their] house clean enough.” These remarks ended the 

meeting. 
70

“Absolutely inappropriate” and “horrifying.” That is how the children’s experts 

described Doe Run’s course of conduct. Richard Coleman, the chemical engineer and 

smelter consultant, explained that Doe Run should have been forthcoming and honest 

with the community, explained the hazards involved, and told residents that the company 

wanted to buy their houses to avoid their exposure to lead. Jim Tarr, the expert in airpollution control, similarly testified that Doe Run should have first told the truth, both to 

the community and to the regulatory agencies; and that secondly, Doe Run should have 

taken definitive action to protect the children’s health, either by providing their families 

an opportunity to live elsewhere or by shutting down the lead smelter. Professor Fisher 

and Dr. Rosner both opined that it was absolutely inappropriate for Doe Run to condition 

public health and a course of action on the possibility of lawsuits. Dr. Rosner explained: 

the idea that you allow people to have their children in harm’s way while 

you know there’s a problem and you tell them to have vacuum cleaners or 

clean up their act or wash their hands or dust their house, when you know 

that’s not the problem, is a horrifying, horrifying example of the misuse ... 

of their power. 

Dr. Rosner further testified that it was not appropriate to just buy properties when they 

became available and without regard to the blood levels of the children. He was equally 

critical of Doe Run renting the homes after they purchased them. Dr. Rosner explained 

that the fact that Doe Run rented only to “no-children” families shows that Doe Run fully

appreciated that children living in those homes were at risk. They knew everything they 

needed to know to get people out of the area. But they stood silent. Doe Run protected 

themselves as owners of the leasehold, but did not protect the children next door. 

In sum, a public-health emergency existed in Herculaneum. And according to Dr. 

Rosner, the public-health expert, Doe Run acted inappropriately in failing to warn the 
71

community and in failing to move the residents out of harm’s way. The children of 

Herculaneum faced a risk that was predictable, understandable, and preventable. The 

children would have been at no risk if they had been moved away from the smelter. Doe 

Run should not have just offered, but should have convinced the residents to move. But 

Doe Run did not. Instead, Doe Run officials did everything in their power to keep the 

residents in the dark. Doe Run could have and should have protected the children and 

moved them away from the smelter. But they did not. Instead, Doe Run let the children 

sit there amidst the dust.40 

Trial

 After nearly six years of discovery and pre-trial proceedings, the children 

proceeded to trial against three of the partners: Fluor, Massey, and DRIH. These three 

entities were represented at trial by the same group of attorneys.41 Over the course of 

thirteen weeks during the spring and summer of 2011, the parties presented 52 witnesses, 

and introduced over 1,400 exhibits. The trial, at times, was quite contentious.42

Defendants presented a vigorous defense. In simple terms, as summed up by their 

counsel in his closing argument, the defendants defended on grounds that it “wasn’t us,” 

and that the children were not harmed but were all doing “quite well.” As to the business 

and operational side of things, defense counsel insisted that the three defendants were not 

involved in the operations of the smelter, but just had ownership. Fluor, Massey, and 

DRIH did not smelt “one ounce of lead,” counsel protested. Counsel instead pointed the 

 40 Concurrent with remediation efforts that took place after the partnership period, the owners of the smelter 

in 2002 agreed, in cooperation with the Missouri DNR, to offer to purchase all of the residential properties 

within approximately three-eighths of a mile of the smelter. Doyle v. Fluor Corp, 400 S.W.3d 316 (Mo. 

App. E.D. 2013).

41 These attorneys also jointly briefed and argued the defendants’ appeal. 42 We commend the trial judge on his constant and judicious professionalism. 
72

finger at Jeffrey Zelms, president of Doe Run, and at St. Joe, another partner from the 

partnership period, but not a party at trial.43 Counsel insisted that Zelms was the person 

in charge and the one really running the company and the smelter. As far as the day-today running of the smelter, “the buck stopped” with Mr. Zelms. Counsel alternatively 

claimed that St. Joe ran the show, and argued that it was St. Joe who dominated Massey 

and DRIH, not Fluor. He insisted that the children sued Fluor, as opposed to the 

“operating company,” simply because Fluor was a “huge” company and because Fluor 

owned entities that were partners. “Remember, we didn’t smelt it, we didn’t do any of 

the stuff, it wasn’t our actions.” “We (Fluor) are being sued because of legalisms and 

because of contracts.”

Defendants adamantly argued that they were not negligent. They acknowledged 

they knew of the contamination in the area, but insisted their actions were reasonable, 

when considered in context of the knowledge and standards of the time. Counsel 

defended that the 1.5 national standard was difficult to meet, and that it was not easy to 

bring an old smelter and all of its emissions into control, to bring the smelter into the new 

age, but they tried. Counsel protested that no federal or state agency claimed that Fluor, 

Massey, or DRIH had ever done anything wrong. To the contrary, defendants maintained 

that they complied with the implementation plans and the law, and that they did many 

positive things to control emissions and benefit the community. He noted that blood lead 

levels in the community were declining. Counsel also pointed out that the partnership 

spent millions of dollars on new equipment at the smelter, that they bought out homes, 

offered free blood testing, distributed educational materials, and cleaned up yards, even 

 43 See Appendix C for details of the partnership. St. Joe was owned by Fluor, and was the parent 

corporation of Massey.
73

though the EPA had not ordered them to do so. Counsel even insinuated that they may 

not have been responsible for all the lead in the soil. He noted that in years past, the city 

used slag material on the roads, and argued that lead in some of the soils may have come 

from residents themselves going to the slag pile and bringing it home. As to the buyouts, 

counsel insisted that the decision was not made for economic reasons. He explained that 

they did not buy out the entire town because Jeffrey Zelms never recommended a buyout. 

He explained that Zelms, intimately familiar with the community, wanted to reduce 

emissions and bring the smelter into compliance, and keep the community together. In 

defendants’ opinion, “this was not a community that really wanted to disband.” 

“All doing well.” Such were defense counsel’s words in describing the children. 

In defendants’ view, the children were not harmed. Defendants claimed that the children 

were successful, that they were gainfully employed, and that the ones still in school were 

doing well, and that even though the children supposedly had ADHD and IQ losses, they 

were doing as well or better than their parents. Defendants maintained that the majority 

of the children – 13 of the 16 – did not have ADHD at all. They conceded that three of 

the children had ADHD, but insisted that lead was not the cause. Counsel argued that 

ADHD is caused by many things, and that a “heated debate” still existed as to whether 

lead in fact causes ADHD. Counsel claimed that many of the children did not have 

symptoms until just before trial. And he told the jury that because of the nature of the 

injuries alleged – being cognitive in nature rather than physical like a broken leg – the 

jury had to decide if the children’s injuries were real. Indeed, he wondered if one of the 

reasons the children did not testify might have been because the jury would get a chance 

to actually see them and evaluate if they were really harmed. 
74

Each child submitted four claims to the jury: a separate claim against each of the 

three defendants for negligently allowing the children to be exposed to unsafe levels of 

lead during the time when each defendant was a partner; and an additional claim against 

Fluor, for negligently allowing the children to be exposed to unsafe levels of lead through 

its total domination and control of subsidiaries DRIH and Leadco. The children also 

sought punitive damages against each defendant. In all, the jury received 214 

instructions – 150 during the liability phase of the trial, and 64 during the punitivedamage phase of the trial. The jury filled out a total of 32 verdict forms – 16, or one for 

each child during the liability phase of the trial, and likewise 16 during the punitivedamage phase. 

A unanimous jury found in favor of each child on all claims, and assessed a total 

of $38,527,186 in compensatory damages.44 A unanimous jury also found each 

defendant liable for punitive damages. In the punitive-damage phase of the trial, the 

children presented one witness, who testified to the value, worth, and financial condition 

 44 The compensatory damages awarded varied by child:

CHILD COMPENSATORY 

DAMAGES AMOUNT

Preston Alexander $2,501,425

Patrick Blanks $2,981,430

Bryan Bolden $2,593,151

Tiffany Bolden $2,832,492

Nathan Davis $2,199,124

Gabriel Farmer $3,031,175

Sydney Fisher $2,366,606

Heather Glaze $2,590,290

Jeremy Halbrook $2,852,192

Matthew Heilig $2,479,350

Austin Manning $1,250,000

Jesse Miller $2,547,651

Jonathan Miller $2,167,086

Ashley Shanks $1,638,802

Lauren Shanks $2,062,850

Isaiah Yates $2,433,562
75

of the three defendants. Counsel for both sides then presented closing arguments. 

Counsel for the children recommended a total punitive-damage award of 208 million 

dollars – 160 million against Fluor, 32 million against Massey, and 16 million against 

DRIH – to send a message to defendants that they cannot come into this state and poison 

our children, and that they cannot ever choose profits over our children. The jury 

returned a verdict assessing a total of 320 million dollars in punitive damages, 112 

million dollars more than requested, to be divided equally among the sixteen children: 15 

million dollars per child against Fluor; 3 million dollars per child against Massey; and 2 

million dollars per child against DRIH. This amounts to a 20 million-dollar punitivedamage award for each child; a 240 million-dollar award against Fluor; a 48 milliondollar award against Massey; and a 32 million-dollar award against DRIH. Together, the 

sum of the compensatory-damage amount and the punitive-damage awards is 

$358,527,186. 

The defendants appeal.

DISCUSSION

Defendants advance seventeen points of alleged trial-court error. We can divide 

those points into the following general categories: (1) the submissibility of the children’s 

case; (2) trial rulings; (3) jury instructions; (4) punitive damages; and (5) post-trial 

motions to reduce the compensatory and punitive-damage awards. We address each 

category in turn. In so doing, we hold that the children made a submissible case against 

all defendants on their negligence claim predicated on defendants’ conduct while 

partners. The children’s domination claim against Fluor, however, is based on a flawed 
76

statement of agency law. We therefore reverse the judgment entered against Fluor on this 

theory of liability. 

As to the trial rulings, defendants advance five challenges – three contest the 

admission of several of the children’s expert witnesses; one complains about the 

exclusion of evidence; and one protests the trial court’s denial of a mistrial after 

children’s counsel mentioned the Missouri Victims’ Compensation Fund during voir dire. 

We deny defendants’ allegations of error because defendants failed to preserve those 

points for our review. 

As to the jury instructions, we hold that the children’s compensatory-damage 

verdict directors neither constituted a roving commission nor permitted the jury to hold 

defendants liable for conduct predating their partnership interest, and therefore the trial 

court did not err in submitting those instructions. 

As to punitive damages, we hold that the children made a submissible case for 

punitive damages against all defendants, and we deny defendants’ various contentions 

regarding the form of the punitive-damage instructions. However, because the children 

submitted their punitive-damage claim against Fluor in the conjunctive, requiring the jury 

to find Fluor liable on both the partner claim and the domination claim in order to assess 

punitive damages against Fluor, and because we hold that the children’s domination 

claim is based on an incorrect statement of law, we reverse the punitive damages assessed 

against Fluor. 

Lastly, as to defendants’ attempts to reduce the awards, we find no abuse of 

discretion in the trial court denying remittitur of compensatory damages and the punitive-
77

damage awards do not violate the Due Process Clause. We turn now to the submissibility 

of the children’s claims. 

Submissibility

The children advanced two theories of liability in suing defendants for negligence. 

First, the children sought to hold each defendant liable based on the defendant’s negligent 

conduct while a partner in the Doe Run partnership. Secondly, the children sought to 

hold Fluor liable due to its alleged domination and control of its subsidiaries and the 

partnership. Defendants challenge the submissibility of both theories. 

Standard of Review

Whether the children made a submissible case is a question of law we review de 

novo. D.R. Sherry Const., Ltd. v. Am. Family Mut. Ins. Co., 316 S.W.3d 899, 904 (Mo.

banc 2010); Doe Run Res. Corp. v. Certain Underwriters at Lloyd’s London, 400 S.W.3d 

463, 470 (Mo. App. E.D. 2013). A case may not be submitted to the jury unless each and 

every fact essential to liability is predicated upon legal and substantial evidence. Sanders 

v. Ahmed, 364 S.W.3d 195, 208 (Mo. banc 2012); Doe Run Res., 400 S.W.3d at 470. In 

determining whether the children made a submissible case, we review the evidence in the 

light most favorable to the claim’s submission, giving the children the benefit of all 

reasonable inferences. Id. We disregard all evidence and inferences that conflict with the 

verdict. Id. The children “may prove essential facts by circumstantial evidence as long 

as the facts proved and the conclusions to be drawn are of such a nature and are so related 

to each other that the conclusions may be fairly inferred.” Doe Run Res., 400 S.W.3d at 

470. This Court will reverse the jury’s verdict for insufficient evidence only if there is a 
78

complete absence of probative facts to support the jury’s conclusion. Sanders, 364 

S.W.3d at 208; Doe Run Res., 400 S.W.3d at 470. 

Theory I: Defendants’ Conduct While Partners

The children sought to establish defendants’ liability for negligence due to each 

defendant’s conduct while a partner in the Doe Run partnership. Defendants, however, 

insist that the court’s judgment improperly imposes liability on them for conduct 

antedating their joining the partnership. They believe they are being held responsible for 

smelter operations and the “copious quantities” of lead released into the Herculaneum 

atmosphere in the decades before any of them acquired their partnership interest and had 

any connection with the smelter. The defendants reallege this in various points on 

appeal. Defendants contend they are responsible only for the acts of the partnership that 

occurred during the period of time they were partners. They further argue that the 

children presented no competent evidence that they were damaged by any acts occurring 

during the defendants’ respective partnership period, and therefore the defendants insist 

that we must reverse judgment for the children and remand the cause to the trial court 

with instructions to enter judgment in their favor on the children’s partner-liability 

claims. 

Under the Missouri partnership act, all partners are jointly and severally liable for 

everything chargeable to the partnership. Section 353.150. And Missouri law holds a 

partnership liable for the acts of one of the partners in the ordinary course of the 

partnership’s business or with the authority of his copartners. Section 358.130. Thus, all 

partners are jointly and severally liable for torts committed by a partner acting within the 

scope and ordinary course of the partnership’s business. Sections 358.150 and 358.130; 
79

Dwyer v. ING Inv. Co., 889 S.W.2d 902, 906 (Mo. App. E.D. 1994); Martin v. Yeoham, 

419 S.W.2d 937, 951 (Mo. App. 1967). Defendants acknowledge these well-established 

principle of law, but contend this liability is restricted to claims that can be made with 

regard to the specific time when each defendant was a partner. Thus, they contend Fluor 

is subject to liability for the operation of the smelter for only the one day it owned a 

partnership interest; that Massey is subject to liability for the operation of the smelter for 

only the four months it owned a partnership interest; and that DRIH is subject to liability 

for the operation of the smelter for only the five years it owned a partnership interest. 

Defendants contend they are not liable for conduct antedating their partnership, for two 

reasons: first, because the children’s tort claims are not “obligations” under the Missouri 

Partnership Act, such that defendants, as incoming partners, would be liable for the preexisting torts; and second, because they did not expressly assume historic, pre-existing 

liabilities upon joining the partnership. 

Liability of Incoming Partner: Tort Claims & Obligations

Section 358.170 of the Missouri Partnership Act, entitled “Liability of Incoming 

Partner,” provides that a person “admitted as a partner into an existing partnership is 

liable for all the partnership obligations arising before his admission as though he had 

been a partner when such obligations were incurred....” Defendants argue that the 

“obligations” assumed by an incoming partner are contractual undertakings and debts of 

the partnership and not unasserted tort claims. Defendants maintain that the this statutory 

section serves to protect creditors who have extended credit to the partnership. Uniform 

Partnership Act 1914 § 17 (Comment).45 They then reason that an incoming partner can 

 45 Section 358.170 is identical with §17 of the Uniform Partnership Act.
80

protect itself by examining the partnership books and records, thereby obtaining full 

knowledge of the partnership’s financial condition, and can insist on liquidation or 

settlement of existing partnership debts before joining. The same is not true, defendants 

posit, for unasserted tort claims based on the partnership’s prior conduct, of which the 

new partner may be unaware and thus unable to evaluate. Defendants contend that the 

children’s lawsuit amounts to an unasserted tort claim, based on conduct that preceded 

the defendants’ respective periods as partners, that simply cannot be an “obligation” 

under the statute. Thus, they declare that they are not liable for injuries suffered by the 

children that were attributable to smelter operations prior to the time they acquired their 

partnership interests. In sum, they disclaim liability for the consequences of the more 

than 100 years of contamination that occurred before their entry into the partnership. 

Caselaw on this issue is scarce. Different courts have reached different 

conclusions of whether a tort claim is an “obligation” of the partnership. Soberg v. 

Sanders, 220 N.W. 781 (Mich. 1928); Wierzbinski v. Celina Mut. Ins. Co., 426 F.Supp 27 

(E.D. Wis. 1976); Penrod Drilling Co. v. Silvertooth, 144 S.W.2d 335 (Tex. Civ. App. 

Galveston 1940). Compelling arguments exist on both sides of the issue. However, we 

need not delve into the intricacies of those scholarly arguments and decide the question, 

for defendants proceed from a faulty premise. Contrary to the defendants’ assertions, the 

children did not seek to hold defendants liable for conduct antedating the defendants’ 

respective partnership interests. Rather the children claimed the defendants were 

responsible for their own conduct while partners. In their petition, the children pleaded 

wide-ranging acts of negligence on the part of defendants while partners.

46 Although the 

children also alleged that defendants, pursuant to successorship and various partnership 

 46 See footnote 8 on page 17. 
81

agreements, assumed liabilities arising out of the operation of the smelter, the children 

did not submit this theory of liability to the jury. The jury instructions specifically 

required the jury to assess each defendant’s conduct and liability while a partner rather 

than assumed partnership liability or incoming partner liability for pre-existing torts. As 

to Fluor, the instructions required the jury to find each of the following in the 

conjunctive: (1) that Fluor was a partner; (2) that while Fluor was a partner, the adjacent 

community of Herculaneum was contaminated with unsafe levels of lead which 

originated from the smelter operations; 3) that while Fluor was a partner, Fluor knew or 

should have known of the unsafe contamination of the community; (4) that Fluor 

specifically allowed the children’s exposure to unsafe levels of lead; (5) that Fluor was 

thereby negligent; and (6) that such negligence directly caused or directly contributed to 

cause damage to the children.47 The instructions as to Massey and DRIH similarly 

limited liability to the time each was a partner. The instructions for Massey and DRIH 

differed from the Fluor instruction only in the fact that the instructions imputed liability 

 47 The “partner” verdict director for Fluor reads: 

On the claim of plaintiff (--) for compensatory damages for personal injury 

against defendant Fluor Corporation, your verdict must be for plaintiff (---) if you 

believe:

First, defendant Fluor Corporation was a partner of the Doe Run Company 

Partnership, and

Second, while defendant Fluor Corporation was a partner of the Doe Run 

Company Partnership, the adjacent community of Herculaneum was contaminated with 

unsafe levels of lead which originated from the smelter operations, and

Third, at that time, defendant Fluor Corporation had information from which it, 

in the exercise of ordinary care, knew or should have known that the adjacent community 

of Herculaneum was contaminated with unsafe levels of lead which originated from the 

smelter operations, and

Fourth, defendant Fluor Corporation allowed plaintiff (---), a resident of 

Herculaneum, to be exposed to unsafe levels of lead which originated from the smelter 

operations before May 26, 1990, and

Fifth, defendant Fluor Corporation was thereby negligent, and

Sixth, such negligence directly caused or directly contributed to cause damage to plaintiff 

(---).
82

to Massey and DRIH based on the knowledge and negligence of the partnership, rather 

than of the entity itself, as had been the case with Fluor.48 

Granted, the children adduced evidence of lead emissions, airborne lead levels, 

soil contamination, partnership activity, and other events occurring prior to the time 

defendants joined the partnership. But this does not mean that defendants were held 

liable for those actions. The evidence of the years of lead emissions, the accumulation of 

lead in the soil, the violations of the air-quality standards, and the partnership’s early 

conduct necessarily provided a historical background, showing the extent and harmful 

nature of the lead contamination, as well as the defendants’ knowledge of the 

contamination in the Herculaneum community. The children did not premise the 

defendants’ liability on past conduct that had concluded. Of course, much of the conduct 

occurring prior to the partnership period continued into and through the partnership 

 48 The “partner” verdict directors for Massey and DRIH were largely identical except for the particular 

defendant’s name and the ending date of the particular defendant’s involvement in the partnership. The 

instructions also differed slightly from the Fluor instruction in the third and fourth paragraphs, in that the 

instructions ascribed liability to Massey and DRIH Fluor based on the partnership’s knowledge and 

negligence, rather than that of the individual entity. The verdict directors read:

On the claim of plaintiff (--) for compensatory damages for personal injury 

against defendant A.T. Massey Coal Company/DRIH, your verdict must be for plaintiff (-

--) if you believe:

First, defendant A.T. Massey Coal Company [DRIH] was a partner of the Doe 

Run Company Partnership, and

Second, while defendant A.T. Massey Coal Company [DRIH] was a partner of 

the Doe Run Company Partnership, the adjacent community of Herculaneum was 

contaminated with unsafe levels of lead which originated from the smelter operations, 

and

Third, at that time, the Doe Run Company Partnership had information from 

which it, in the exercise of ordinary care, knew or should have known that the adjacent 

community of Herculaneum was contaminated with unsafe levels of lead which 

originated from the smelter operations, and

Fourth, the Doe Run Company Partnership allowed plaintiff (---), a resident of 

Herculaneum, to be exposed to unsafe levels of lead which originated from the smelter 

operations before April 5, 1989[March 26, 1994], and

Fifth, the Doe Run Company Partnership was thereby negligent, and

Sixth, such negligence directly caused or directly contributed to cause damage to 

plaintiff (---).
83

period, including the time that defendants were partners. The smelter continued to emit 

harmful lead dust; the lead continued to accumulate in the soil; and the air continued to 

be contaminated, such that the smelter never met national air quality standards during the 

partnership period. Thus the defendants’ liabilities were not “historic” at all. Throughout 

the case and now on appeal, defendants consistently ignore their many acts of omission 

as a basis for liability. The children adduced substantial evidence of these. Defendants 

do not deny that upon becoming and while serving as partners they well knew of the 

unsafe lead contamination present in the community. Despite this, defendants failed to 

act and allowed the contamination to continue. Day after day, be it for one day or five 

years, defendants operated the smelter, emitting lead into the air. Day after day, that lead 

settled on the soil of the nearby community. Day after day, the lead in the air and soil, 

emitted from the smelter, found its way into the children’s homes and into the children 

themselves. Day after day, defendants stood silent, and failed to inform – and worse, 

misinformed – the community about their safety. Day after day, the defendants failed to 

inform the parents of the level of lead present in the soil around their home, or the level 

of lead present in their children. Day after day, the defendants failed to curtail operations 

or install equipment to meet federal ambient air levels. Day after day, the defendants 

failed to adequately remediate the lead contaminating the surrounding neighborhood. 

Day after day, by their actions and inactions, defendants allowed the children to be 

exposed to unsafe levels of lead. 

Assumed Historical Liabilities

Even if the children had premised the defendants’ liability on conduct predating 

their partnership interest, we conclude that the children produced sufficient evidence 
84

from which a jury could conclude that each defendant assumed that liability upon 

acquiring its partnership interest and becoming a partner. 

It is axiomatic that a partnership rests on contract. Allison v. Dilsaver, 387 

S.W.2d 206, 211 (Mo. App. 1965); Hidden v. Edwards, 285 S.W. 462, 467 (Mo. 1926). 

The rights and liabilities of the partners, though generally fixed or implied by law, are 

subject to modification according to the agreement and intention of the parties. Allison, 

387 S.W.2d at 211; Hidden, 285 S.W. at 467; see also Section 358.180 of the Missouri 

Partnership Act (setting forth rules by which the rights of duties of partners are to be 

determined, noting that those rights and duties are subject to any agreement between the 

partners). In other words, the partnership agreement governs, and the rights and 

liabilities of the partners are to be determined in accordance with the partnership 

agreement. Heath v. Spitzmiller, 663 S.W.2d 351, 354 (Mo. App. S.D. 1983). 

The partnership agreement here provided that in forming the Doe Run 

partnership, partners St. Joe and Homestake contributed to the partnership all of the 

liabilities constituting their respective lead businesses, so that the partnership would have 

the obligation of managing all such liabilities. The contributed liabilities expressly 

included “contingent liabilities relating to employment, environmental, product and other 

matters.” The partnership agreement further defined St. Joe’s liabilities as “... all usual 

and customary obligations and liabilities related to the ownership and operation of the St. 

Joe Assets (whenever arising and whether or not set forth...” and “the pollution control 

debt relating to the Herculaneum smelter....” It is undisputed that St. Joe’s assets 

included the Herculaneum smelter. Professor Ordower, in commenting on the 

partnership agreement, stated that the partners had contributed all their environmental 
85

liabilities to the partnership, including any environmental liabilities from before they 

joined together. Similarly, Jeffrey Zelms, president of Doe Run, in discussing the assets 

and liabilities contributed to the partnership, testified that the historic liabilities for the 

smelter in Herculaneum went to the Doe Run partnership. Even defendants, in their brief 

on appeal, admit that in forming the Doe Run partnership, Homestake and St. Joe 

“intended to assume at least some of each other’s historical liabilities for their respective 

lead operations.” The partnership agreement is unambiguous; all liabilities relating to the 

operation of the Herculaneum smelter, whenever arising, were contributed to the 

partnership. 

Of course, the Doe Run partnership consisted of more than just the original two 

partners, St. Joe and Homestake. Over the course of the partnership, these original 

partners transferred or sold their partnership interests to other entities. The partnership 

agreement allowed such transfers and dictated that upon such transfer, the new partner 

assumed all the duties, liabilities, and obligations of the transferring partner. The 

partnership agreement contained two separate provisions regarding transfers – one 

governed transfers to wholly-owned affiliates, the other governed transfers to 

nonaffiliates. As to transfers to a wholly-owned affiliate, the agreement provided that 

upon such transfer the affiliate was required to execute a copy of the partnership 

agreement “to assume all the duties, liabilities and obligations of the transferring partner” 

in respect to the partnership and under the partnership agreement. 

The first such transfer occurred in October of 1988, when St. Joe transferred part 

of its partnership interest to Massey. Defendants argue the partnership agreement did not 

apply, and therefore any “historic” or pre-existing liabilities did not transfer to Massey, 
86

because Massey was not a wholly-owned subsidiary of St. Joe. Although it may be true 

that Massey was not a wholly-owned subsidiary of St. Joe, the non-transferring partner, 

Homestake, did not object, and in fact expressly consented to the transfer. Moreover, and 

more critically, Massey executed a copy of the partnership agreement contemporaneously 

with the transfer, adopting the terms and conditions of that agreement, and accepting the 

duties, liabilities, and obligations of a general partner pursuant to the partnership 

agreement. Massey’s corporate representative, Richard Grinnan, in his deposition read at 

trial, admitted that Massey assumed the liabilities of the Herculaneum smelter as part of 

the obligations Massey undertook when it entered into the partnership. Professor 

Ordower similarly testified that when Massey accepted the transfer of partnership interest 

from St. Joe, thereby becoming a general partner in the Doe Run partnership, Massey 

took on all the historic liabilities of the partnership. 

When Massey assigned its partnership interest to DRIH in April of 1989, DRIH, 

as Massey had done before it, executed a copy of the partnership agreement, adopting and 

agreeing to the terms and conditions of that agreement, and accepting the duties, 

liabilities, and obligations of a general partner. Professor Ordower explained that in 

executing the partnership agreement and accepting all of the liabilities and obligations of 

the partnership, DRIH assumed whatever historic liabilities came with becoming a 

general partner. 

Lastly we address Fluor’s purchase of Homestake’s partnership interest. In 

addition to the provision governing transfers to affiliates, the partnership agreement also 

contained a provision governing transfers to nonaffiliates, which allowed a partner to sell 

all its shares to a third party. Such transfer, however, was conditioned on the requirement 
87

that the party purchasing the shares “be bound by the provisions of and assume the 

obligations of the transferor Partner under this Agreement as fully and to the same extent 

as though such transferee had executed this Agreement.” Professor Ordower explained 

that in purchasing Homestake’s shares and becoming a general partner in the partnership, 

Fluor took on the historic liabilities of the partnership. Furthermore, contemporaneously 

with Fluor’s purchase of Homestake’s shares, the partners – Fluor, Homestake, DRIH, 

and St. Joe – executed an amendment to the partnership agreement. That amendment 

expressly provided that Fluor was “substituted” for Homestake as a partner. The 

amendment also stated that the partnership would continue to be in existence after the 

sale. Fluor’s intent to assume all of the partnership’s liabilities is likewise unambiguous. 

Fluor stepped into Homestake’s shoes, and in so doing became obligated, like Homestake 

before it, for all liabilities relating to the operation of the smelter, whenever arising. 

Elements of Negligence

As noted, the children sought recovery on a negligence cause of action. To prove 

negligence, a plaintiff must show that the defendant had a duty to protect the plaintiff 

from injury; the defendant failed to perform that duty; and defendant’s failure caused 

injury to the plaintiff. Hoffman v. Union Elec. Co., 176 S.W.3d 706, 708 (Mo. banc 

2005).

Defendants do not challenge the submissibility of the children’s action except on 

the grounds of causation. Thus, we will consider only that element, and simply note that 

the children presented sufficient evidence establishing both a duty and breach of that 

duty. And undoubtedly, they also showed injury. 
88

The mere fact that injury follows negligence does not necessarily create liability 

on the part of the tortfeasor. Branstetter v. Gerdeman, 274 S.W.2d 240, 245 (Mo. 1955) 

Plaintiffs must establish a causal connection between the charged negligent conduct and 

the loss or injury sustained. Id. Defendants claim the children failed to prove that the 

activities of Doe Run that occurred during defendants’ respective periods of partnership 

ownership caused the children’s injuries. In other words, they argue the children 

provided no evidence to connect their injuries to the conduct of defendants during the 

one-day, five-month, or five-year periods that defendants respectively owned partnership 

interests. Defendants complain that the children instead inundated the record with 

evidence of lead emissions, and supposedly resulting pollution, that occurred during the 

previous period of ownership by St. Joe and its predecessors before the existence of the 

partnership. 

Defendants point to the children’s causation expert, Dr. O’Connor, and 

characterize his attempt to trace the children’s exposure to the actual period of 

defendant’s partnership participations as highly speculative, equivocal, and conjectural 

ruminations. As to Fluor, Dr. O’Connor could not say that lead emitted on May 25, 

1990, the single day of Fluor’s partnership interest, had entered the bodies of any of the 

children in this case. When asked if he could say whether any of the lead in the 

children’s bodies was generated during the five-month period when Massey was a 

partner, Dr. O’Connor replied that “likely” some of it did, but he could not give any 

estimate as to what amount or what percentage, and he acknowledged that one could not 

tell lead from 1988 apart from lead in 1950. As to DRIH’s five-year involvement, Dr. 

O’Connor similarly stated that some lead from that time period “probably” got into the 
89

children’s bodies, “but you can’t tell what percentage that was.” Defendants argue that 

“probably” or “likely” do not constitute proof of causation under Missouri law. 

Defendants argue that when properly confined to the periods for which defendants are 

actually responsible – their respective times as partners – the children’s causation 

analysis suffers from the same infirmity as that in Zafft and Benjamin Moore, that being 

the inability to trace injuries to a particular defendant. Zafft v. Eli Lilly & Co., 676 

S.W.2d 241 (Mo. banc 1984); City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 

110 (Mo. banc 2007). 

Zafft was a pharmaceutical product-liability action in which the plaintiffs alleged 

injury as a direct result of their exposure in utero to a drug (DES) taken by their mothers. 

Plaintiffs sued thirteen defendants, representing all or substantially all of the known 

makers, sellers or distributors of DES in Missouri at the relevant time. The plaintiffs, 

however, were unable to identify which defendant made, sold, or distributed the 

particular drug ingested by their mother. The drug had been marketed generically by as 

many as 300 different companies, and thus it was impossible to match a specific dosage 

with an individual manufacturer. Zafft, 676 S.W.2d at 242-43. The plaintiffs’ inability to 

trace their damage to a particular defendant doomed their case. Our Supreme Court 

cautioned: 

If the injury may have resulted from one of two causes, for one of which, 

and not the other, the defendant is liable, the plaintiff must show with 

reasonable certainty that the cause for which the defendant is liable 

produced the result; and, if the evidence leaves it to conjecture, the 

plaintiff must fail in his action.

Id. at 246. Accordingly, the Court held that plaintiffs had not proven causation and thus 

could not maintain their cause of action. Id. at 247.
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Benjamin Moore involved a public-nuisance claim brought by the City of St. 

Louis against a number of companies that put lead paint into the stream of commerce. 

The city sought to recover its costs for assessing, abating, and remediating lead paint that 

was allegedly present at or abated from a number of properties in the city. Benjamin 

Moore, 226 S.W.3d at 112-13. Relying on Zafft, the Court reiterated that “where a 

plaintiff claims injury from a product, actual causation can be established only by 

identifying the defendant who made or sold that product. Id. at 115. The city, however, 

could not connect any specific defendant to any specific project. Specifically, the city 

could not identify the manufacturer of any lead paint that was allegedly present at or 

abated from the properties at issue. Id. at 113. The Court thus held that without this 

product-identification evidence, the city could not prove actual causation. The Court 

reasoned:

Without product identification, the city can do no more than show that the 

defendants’ lead paint may have been present in the properties where the 

city claims to have incurred abatement costs. That risks exposing these 

defendants to liability greater than their responsibility and may allow the 

actual wrongdoers to escape liability entirely. 

Id. at 115-16. 

Defendants contend that the principles of causation reiterated in Benjamin Moore

dictate the outcome of this case and require rejection of children’s claims based on 

partnership liability. They argue that Dr. O’Connor’s inability to trace any lead from 

Fluor’s one day of ownership to any child mandates reversal of the judgment against 

Fluor, and that Dr. O’Connor’s concession that lead was not traceable to any particular 

time period also invalidated the children’s claims as to Massey and DRIH. We disagree. 

To begin, the Zafft and Benjamin Moore cases are readily distinguishable. In those cases, 

multiple sources of the offending agent – be it the drug in Zafft or the paint in Benjamin
91

Moore – existed. The cases treated the question of an indeterminate defendant. Here, on 

the other hand, we only have one source of the offending agent – the smelter. Moreover,

defendants’ argument again proceeds from a faulty premise. The issue is not whether a 

causal connection can be made between a particular particle of lead dust and the 

children’s injuries. Rather, the critical inquiry is whether plaintiffs have established a 

connection between a defendant’s negligent act or omission and the injury suffered by the 

plaintiffs. Plaintiffs did not need to prove the transmigration of lead into a child’s 

bloodstream occurred on a specific date. They needed to prove the defendants’ 

negligence while partners caused injury. Zafft and Benjamin Moore “reaffirm the policy 

that a plaintiff who seeks recovery in tort against one joined as a defendant must identify 

that defendant as an actor in the production of the harm for which the plaintiff seeks 

recovery.” Elam v. Alcolac, Inc., 765 S.W.2d 42, 183 (Mo. App. W.D. 1988). And here

the children have alleged and shown such a connection – that the acts and omissions of 

the defendants caused them harm. 

To establish a causal connection between the alleged negligent conduct of the 

defendant and the resulting injury to the plaintiff, a plaintiff must prove that the 

defendant’s conduct is both the actual cause and the proximate cause of the plaintiff’s 

injury. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo. banc 1993); 

Freight House Lofts Condo Ass’n v. VSI Meter Servs., 402 S.W.3d 586, 599 (Mo. App. 

W.D. 2013). 

“An essential element of the proof of a cause of action for negligence is that there 

be some reasonable connection between an act or omission of the defendant and the 

damage the plaintiff has suffered.” Elam, 765 S.W.2d at 173 (citing Prosser and Keeton, 
92

The Law of Torts § 41 [Fifth ed. 1984]). This connection is the “causation in fact” – or 

actual causation – of the damage sustained. Id. In noting the necessity of establishing 

causation in fact, our Supreme Court has explained: 

Any attempt to find liability absent actual causation is an attempt to 

connect the defendant with an injury or event that the defendant had 

nothing to do with. Mere logic and common sense dictates that there be 

some causal relationship between the defendant’s conduct and the injury 

or event for which damages are sought. 

Callahan, 863 S.W.2d at 862. A defendant’s conduct is the actual cause, or cause-in-fact, 

of the plaintiff’s injury where the injury would not have occurred “but for” that 

conduct.49 Richey v. Philipp, 259 S.W.3d 1, 8 (Mo. App. W.D. 2008); Callahan, 863 

S.W.2d at 861-62. The “but for” formula of causation in fact “is as much an expression 

of legal policy as of factual quantum.” Elam, 765 S.W.2d at 176. As announced by our 

Supreme Court: 

The traditional and foremost policy of the tort law is to deter harmful 

conduct and to ensure that innocent victims of that conduct will have 

redress. Cognate principles of equity and economic efficiency also inform 

that policy: that the costs of the pervasive injury ... shall be borne by 

those who can control the danger and make equitable distribution of the 

losses, rather than by those who are powerless to protect themselves. 

Id. The children easily proved actual causation in this case. But for defendants operating 

the smelter, the children would not have been harmed. But for defendants failing to 

adequately control the emissions and release of lead into the surrounding neighborhood, 

the children would not have been harmed. But for defendants failing to warn or inform 

the community of the level of contamination present, the children would not have been 

 49 The “but for” test for causation applies in all cases except those involving two independent torts, either of 

which is sufficient in and of itself to cause the injury (e.g., two-fire cases). Callahan, 863 S.W.2d at 862-

63. That is not our situation here. 
93

harmed. But for their many acts and omissions, the children would not have been 

harmed. 

Once a plaintiff establishes actual causation, the issue becomes one of proximate 

cause – that is, whether the defendant should be held liable because the harm is the 

reasonable and probable consequence of the defendant’s conduct. Benjamin Moore, 226 

S.W.3d at 114; Callahan, 863 S.W.2d at 865. In regard to proximate cause, our Supreme 

Court has explained:

Proximate cause requires something in addition to a “but for” causation 

test because the “but for” causation test serves only to exclude items that 

are not causal in fact; it will include items that are causal in fact but that 

would be unreasonable to base liability upon because they are too far 

removed from the ultimate injury or damage. 

...

Missouri, like many other states, has not applied a pure foreseeability test; 

we have generally said that the injury must be a reasonable and probable 

consequence of the act or omission of the defendant. This is generally a 

“look back” test but, to the extent it requires that the injury be “natural and 

probable,” it probably includes a sprinkling of foreseeability. To the extent 

the damages are surprising, unexpected, or freakish, they may not be the 

natural and probable consequences of a defendant's actions. 

Callahan, 863 S.W.2d at 865 (internal citations omitted). Thus, we determine proximate 

cause “by looking back, after the injury or damage has occurred, and examine whether 

the injury is a reasonable and probable consequence of the defendant’s conduct.” Richey, 

259 S.W.3d at 9; Callahan, 863 S.W.2d at 865. Foreseeability, as it relates to proximate 

cause, “refers to whether a defendant could have anticipated a particular chain of events 

that resulted in injury or the scope of the risk that the defendant should have foreseen.” 

Richey, 259 S.W.3d at 9 (quoting Lopez v. Three Rivers Elec. Corp., Inc., 26 S.W.3d 151, 

156 (Mo. banc 2000)). It is only necessary that the party charged knew or should have 

known an appreciable chance existed that some injury would result. Richey, 259 S.W.3d 
94

at 9. Furthermore, the defendant’s negligence need not be the sole cause of the injury; it 

only need be one of the causes without which the injury would not have occurred. Id. 

Indeed, as reflected in the jury instructions, the jury in this case needed only to find that 

defendants’ negligence “contributed to cause” damage to the children.

As with actual causation, the children here easily proved proximate causation. 

Defendants knew of the lead contamination in the air and soil in the Herculaneum 

community. Defendants knew of the toxic and harmful nature of lead. The children’s 

lead poisoning was a reasonable and probable consequence of defendants’ conduct in 

continuing operations at the smelter and allowing the children to be exposed to unsafe 

levels of lead by failing to take appropriate action to stem the contamination and warn the 

community of the danger. 

To conclude, we hold that the children made a submissible case against all 

defendants based on each defendant’s negligence while a partner in the Doe Run 

partnership. Hence, the trial court did not err in overruling defendants’ motions for 

directed verdict and judgment notwithstanding the verdict. We deny this point. 

Theory 2: Domination and Control 

The children submitted an additional theory of liability against Fluor – a 

“domination and control” theory – seeking to hold Fluor liable based on agency 

principles and Fluor’s parent-subsidiary relationship with DRIH and Leadco. The 

children contended that Fluor exercised total control over its subsidiaries with respect to 

the lead business, and that in exercising such control, Fluor dominated and controlled all 

activities of the partnership and exercised total control over the smelter. In the children’s 

view, the subsidiaries were mere conduits for Fluor. They argued that Fluor’s conduct, in 
95

controlling its subsidiaries and the activities of the partnership in operating the smelter, 

created a relationship with the community that gave rise to Fluor’s duty to exercise 

reasonable care to protect the children from harm caused by lead from the smelter – a 

duty that the children maintain Fluor breached. The children cited to the Ritter, Sedalia, 

and Blackwell cases for the principle that a parent corporation may be held liable for a 

subsidiary’s actions where the parent company exercises “such domination and control 

that the controlled corporation [or subsidiary] has, so to speak, no separate mind, will or 

existence of its own and is but a business conduit for its principal.” Ritter v. BJC Barnes 

Jewish Christian Health Sys., 987 S.W.2d 377 (Mo. App. E.D. 1997); Sedalia Mercantile 

Bank and Trust Co. v. Loges Farms, Inc., 740 S.W.2d 188 (Mo. App. W.D. 1987);

Blackwell Printing Co. v. Blackwell-Wielandy Co., 440 S.W.2d 433 (Mo. 1969). 

The children rightly contend that they adduced ample evidence from which the 

jury could have concluded that Fluor exercised total dominion and control over DRIH 

and Leadco. We do not have a want of evidence in this case. The problem here lies with 

the legal theory relied upon by the children. 

A Roadmap

Courts, both nationwide and in Missouri, recognize two doctrines by which to 

hold a parent corporation liable for the acts of a subsidiary: piercing the corporate veil 

and agency. The children expressly disavowed reliance on piercing the corporate veil as 

a means to hold Fluor liable. Nevertheless, we find a discussion of that doctrine 

necessary to explain the agency theory of liability in Missouri, and what appears to be the 

flawed development and statement of the theory relied upon by the children. We thus 
96

begin with a general overview of corporations, then proceed to a discussion of piercing 

the corporate veil, and then, finally, agency liability. 

Corporations 

A corporation is an artificial entity created by the state. See generally Mo. Const. 

art. XI, section 2; Chapter 351 RSMo; Clark v. Austin, 101 S.W.2d 977, 982 (Mo. 1937). 

Among the principal attributes of a corporation is the corporation’s legal existence 

distinct and separate from its shareholders. Mo. Corporate Organization and Operation 

§1.2 (MoBar 2005). “Ordinarily, a corporation is regarded as a wholly and separate legal 

entity, distinct from the members who compose it.” Thomas Berkeley Consulting Eng’r, 

Inc. v. Zerman, 911 S.W.2d 692, 695 (Mo. App. E.D. 1995); accord Blackwell Printing 

Co., 440 S.W.2d at 437. Likewise, two separate corporations are regarded as wholly 

distinct legal entities, even if one partly or wholly owns the other. Cent. Cooling & 

Supply Co. v. Dir. of Revenue, State of Mo., 648 S.W.2d 546, 548 (Mo. 1982); MidMissouri Tel. Co. v. Alma Tel. Co., 18 S.W.3d 578, 582 (Mo. App. W.D. 2000); Grease 

Monkey Intern., Inc., v. Godat, 916 S.W.2d 257, 262 (Mo. App. E.D. 1995)(“In the eyes 

of the law, two different corporations are two different persons. This is true even if one 

corporation is the sole shareholder of the other.”). 

Another major feature of the corporate form is that it insulates shareholders from 

personal liability for the actions of the corporation. Shareholders are not ordinarily 

personally liable for corporate obligations. Mo. Corporate Organization and Operation 

§1.4 (MoBar 2005); 1 Fletcher Cyclopedia of the Law of Corporations §14 (2006);

Adelstein v. Jefferson Bank and Trust Co., 377 S.W.2d 247, 251 (Mo. 1964). 

Correspondingly, a parent corporation is normally not liable for the acts of its subsidiary 
97

corporations. Mid-Missouri Tel. Co., 18 S.W.3d at 582. The mere existence of a parentsubsidiary relationship, without more, does not subject a parent corporation to liability for 

acts of the subsidiary. Sedalia, 740 S.W.2d at 202.

Ordinarily, courts protect the separate legal identities of individual corporations, 

even if one corporation owns a part or all of the other. Collet v. Am. Nat. Stores, Inc., 

708 SW.2d 273, 283 (Mo. App. E.D. 1986). This general rule is not without exceptions, 

however. In certain instances, courts will make an exception and hold a parent 

corporation liable for the acts of a subsidiary. We first discuss piercing the corporate 

veil. 

Piercing the Corporate Veil

Piercing the corporate veil is an equitable doctrine used by the courts to look past 

the corporate form and impose liability upon owners of the corporation – be they 

individuals or other corporations – when the owners create or use the corporate form to 

accomplish a fraud, injustice, or some unlawful purpose. See generally Edward D. 

Gevers Heating & Air Conditioning Co. v. R. Webbe Corp., 885 S.W.2d 771 (Mo. App. 

E.D. 1994); Ritter, 987 S.W.2d at 384. To pierce the corporate veil, a plaintiff must 

prove the following three elements:

(1) Control, not mere majority or complete stock control, but complete 

domination, not only of finances, but of policy and business practice in 

respect to the transaction attacked so that the corporate entity as to this 

transaction had at the time no separate mind, will or existence of its own; 

and

(2) Such control must have been used by the defendant to commit fraud or 

wrong, to perpetrate the violation of a statutory or other positive legal 

duty, or dishonest and unjust act in contravention of plaintiff's legal rights; 

and

(3) The aforesaid control and breach of duty must proximately cause the 

injury or unjust loss complained of. 
98

Collet, 708 S.W.2d at 284; see also Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 

18 (Mo. banc 2013)(applying the Collet test). Our focus here will be on the first element, 

regarding control. 

There is no hard and fast rule for when a court will pierce the corporate veil; the 

inquiry is highly fact-specific and depends on the equities of the situation at hand. 

However, mere identity of shareholders, directors, or officers between two corporations is 

insufficient to find an identity of interests between the two entities to pierce the corporate 

veil. Mitchell v. K.C. Stadium Concessions, Inc., 865 S.W.2d 779, 784 (Mo. App. W.D. 

1993). Likewise, merely showing that one has absolute control of a corporation does not 

of itself justify piercing the corporate veil. Fairbanks v. Chambers, 665 S.W.2d 33, 37-

39 (Mo. App. W.D. 1984); C.C. Dillon Co. v. Robinson, 636 S.W.2d 380, 383 (Mo. App. 

E.D. 1982). One seeking to pierce the corporate veil needs to show both complete 

control and improper purpose. Id. Even though corporations are related and one has 

complete control over the other, there can be no piercing of the corporate veil without a 

showing of impropriety in the establishment or use of the corporate form sought to be 

disregarded. Id. The determination of whether there is a case for equitable relief, in the 

face of complete control by a parent over its subsidiary, is decided by the test of whether 

or not the arrangement involved is being used for a proper purpose. Cent. Cooling, 648 

S.W.2d at 548; Phelps v. Missouri-Kansas-Texas R.R. Co., 438 S.W.2d 181, 186 (Mo. 

1968)(citing May Dep’t Stores Co. v. Union Elec. Light & Power Co., 107 S.W.2d 41 

(Mo. 1937)). As our Missouri Supreme Court aptly summarized long ago:

If any intercorporate affiliation is devised for or is being used to 

accomplish an improper or unlawful purpose, certainly equity does have 

the authority to tear down technical legal barriers and reach beyond them 

to impose liability or grant proper relief. If the purpose is lawful, and fair 
99

and equitable to those with whom it is intended to deal, legal forms and 

relationships should be observed. Men have the right to use legal forms 

which they believe to be helpful in accomplishing proper purposes. The 

question should not be merely instrumentality, but instrumentality for 

what purpose. 

May Dep’t Stores, 107 S.W.2d at 55. 

Our Supreme Court recently reaffirmed its previous admonition that the parentsubsidiary separation should be “ignored with caution and only when the circumstances 

clearly justify it.” Doe 1631, 395 S.W.3d at 18 (quoting Cent. Cooling, 648 S.W.2d at 

548; see also 66, Inc. v. Crestwood Commons Redevelopment Corp., 998 S.W.2d 32, 40 

(Mo. banc 1999)(noting Missouri law recognizes the “narrow circumstances” in which 

the corporate veil can be pierced in order to hold the corporation’s owners liable); accord 

Fairbanks, 665 S.W.2d at 37 (“special circumstances”). As the Court stated in Central 

Cooling:

The doctrine of corporate entity is one of substance and validity; it should 

be ignored with caution, and only when the circumstances clearly justify 

it. The theory of the alter ego has been adopted by the courts to prevent 

injustice, in those cases where the fiction of a corporate entity has been 

used as a subterfuge to defeat public convenience or to perpetrate a wrong; 

it should never be invoked to work an injustice, or to give an unfair 

advantage. 

Cent. Cooling, 648 S.W.2d at 548 (internal quotation omitted). 

As seen in the Central Cooling case, the Court referenced an “alter ego” theory 

rather than “piercing the corporate veil.” The phrase “alter ego” is often seen in Missouri 

jurisprudence, as is the phrase “mere instrumentality.” See, e.g., Gevers Heating & Air 

Conditioning, 885 S.W.2d at 773 (referencing “alter ego” rule); C.C. Dillon, 636 S.W.2d 

at 383 (instrumentality). Indeed, “[t]he terminology used by courts in considering 

whether a parent corporation will be held liable for the actions of its subsidiary has not 
100

been a model of clarity.” Mobil Oil Corp. v. Linear Films, Inc., 718 F.Supp 260, 266 

(D.Del 1989); Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94 (1926)(J. Cardozo noting 

problem of relationship between parent and subsidiary corporations is enveloped in 

“mists of metaphor”). Terms such as “alter ego,” “instrumentality,” “conduit,” “adjunct,” 

and “agent” are often deemed equivalent and interchangeable. See, e.g., State ex rel. 

Shull v. Liberty Nat. Bank of Kansas City, 53 S.W.2d 899, 902 (Mo. 1932)(using terms 

“mere conduit,” “instrumentality,” and “adjunct” interchangeably when discussing 

disregarding corporate entities); C.C. Dillon, 636 S.W.2d at 383 (using “alter ego” and 

“instrumentality” interchangeably as devices to pierce the corporate veil); Real Estate 

Investors Four, Inc. v. Am. Design Group Inc., 46 S.W.3d 51, 56 (Mo. App. E.D. 

2001)(“adjunct” and “alter ego”); Dwyer, 889 S.W.2d at 904-05 (noting “instrumentality” 

test and “alter ego” test developed in Missouri jurisprudence interchangeable); Mobil Oil, 

718 F.Supp at 266 (noting that terms “alter ego,” “instrumentality,” “agent,” 

“disregarding the corporate entity,” and “piercing the corporate veil” used 

interchangeably); Norwood P. Beveridge, Piercing the Corporate Veil: The Oklahoma 

Law of Corporate Alter Egos, Adjuncts, and Instrumentalities, 26 Okla. City U.L. Rev. 

503, 506 (2001)(noting that “many very different terms are being used to describe the 

same doctrine of piercing the corporate veil). The precise title to be placed upon the 

relationship is unimportant. Camelot Carpets, Ltd. v. Metro Distrib. Co., 607 S.W.2d 

746, 750 (Mo. App. E.D. 1980); see also Beveridge, supra, at 506 (noting that there is no 

reason to believe that the different terms are distinguishable from each other). The 

contours of the theory remain the same, no matter the term. Mobil Oil, 718 F.Supp at 

266. If a parent corporation completely dominates its subsidiary, and has created or is 
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using the subsidiary corporation for some improper purpose, then the courts will 

disregard the corporate form of the subsidiary and hold the parent liable. Camelot 

Carpets, 607 S.W.2d at 750. 

The use of the term “agent” in the context of piercing the corporate veil is 

unfortunate because it can cause confusion with pure agency theory. Mobil Oil, 718 

F.Supp at 266 n.9; Lowendahl v. Baltimore & O.R. Co., 287 N.Y.S. 62, 74 (1936). As we 

shall see, Missouri courts have not been immune from this confusion. The theories are 

separate and distinct, however, and used in distinctly different situations. See generally 

Nat’l Plumbing Supply Co. v. Torretti, 175 S.W.2d 947, 952 (Mo. App. 1943); Japan 

Petroleum Co. (Nigeria) Ltd. v. Ashland Oil, Inc., 456 F.Supp 831, 839-40 (D.Del 1978); 

Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 842 F.2d 1466, 1476-77 (3rd Cir. 1988); 

see also, 38 A.L.R.3d 1102 §§3-4 (1971). Unfortunately, courts over the years have not 

always observed the distinction between these two separate bases for a parent 

corporation’s liability. Restatement of Agency 2d, Appendix S 14M, Reporter’s Notes at 

68 (1958). “The result has been a weakening and muddying of the term ‘agent.’” Id. 

Again, the children here do not rely on piercing the corporate veil to hold Fluor 

liable. They did not plead such a theory, they did not submit a piercing-the-corporateveil instruction, and they expressly disclaimed use of any such theory throughout trial and 

on appeal. In sum, they claim no impropriety in Fluor’s establishment or use of its two 

subsidiaries. Instead, they urge an agency relationship as a means to hold Fluor liable. 

Agency Theory

The law of agency is based on the fundamental premise that he who acts through

another acts by or for himself. 2A C.J.S., Agency §1; 3 Am Jur 2d, Agency §2. As a 
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general rule, one may “properly appoint an agent to do the same acts and achieve the 

same legal consequences as if [they] had acted personally.” 2A C.J.S., Agency §§1 & 3. 

Stated simply, “an agency relationship exists when one person is authorized to represent 

and act for another in dealings with third parties.” 2A C.J.S., Agency §1 “[T]he agent 

steps into the shoes of the principal and acts for the principal pursuant to the grant of 

authority vested in him by the principal.” Id. Stated more formally: “Agency is the 

fiduciary relation that arises when one person (a principal) manifests assent to another 

person (an agent) that the agent shall act on the principal’s behalf and subject to the 

principal’s control, and the agent manifests assent or otherwise consents so to act.” 

Restatement Third, Agency §1.01; State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 

642 (Mo. banc 2002). 

Because the fundamentals of agency law include the concept that the agent is a 

substitute for the principal, it is, accordingly, a consequence of the agency relationship 

that whatever an agent does in the lawful prosecution of the transaction entrusted to him 

is the act of the principal. 3 Am Jur 2d, Agency §2. “[W]hen one directs, orders, or 

knowingly authorizes another to perform an act on one’s behalf, then one is liable for the 

harm proximately caused by that act.” 2A C.J.S., Agency §419. “The principal should 

not be allowed to escape liability for an act done through the medium of an agent which, 

if done by the principal himself or herself, would have resulted in liability.” Id. It is a 

fundamental rule of agency law that “the principal is bound by, and liable for, the acts 

which his agent does with or within the actual or apparent authority from the principal, 

and within the scope of the agent’s employment or which the principal ratifies.” 3 Am 

Jur 2d, Agency §270. This general rule of liability is based upon the principle that “a 
103

duty rests upon every person, in the management of his own affairs, whether by himself 

or by his agents, to so conduct them as not to injure another, and that if he does not do so, 

and another is thereby injured, he shall answer for the damage.” Id. “This principle does 

not work any injustice to the principal, for it is based upon the policy of protection of the 

third person and results from the consideration that it is the principal who makes it 

possible for the agent to inflict the injury.” Id. 

Although formerly corporations could not be held liable for torts, today it is wellsettled that corporations can be held liable for a tort precisely as in the case of natural 

persons. 10 Fletcher §4877. Generally speaking, the rules governing liability of a 

principal for a tort committed by an agent are the same whether the principal is a natural 

person or a corporation, and whether the agent is a natural or artificial person. Id. “A 

corporation is liable, therefore, whenever a tortious act is committed by an agent within 

the scope of the agent’s authority and in the course of the agent’s employment.” Id. 

Missouri law is in accord with that of a number of other states that recognize that 

a traditional principal-agent relationship may be created between two corporations, 

whereby one corporation may be held liable for the activities of another corporation, such 

as its subsidiary. Weitz Co. v. MH Washington, 631 F.3d 510, 522 (8th Cir. 2011)(noting 

that Missouri law recognizes piercing the corporate veil, referred to there as “alter-ego” 

liability, and agency liability as separate, distinct causes of action); see also Nat’l 

Plumbing Supply Co. v. Torretti, 175 S.W.2d 947, 951 (Mo. App. 1943)(noting that one 

corporation may act as agent for another); Bacon, 63 S.W.3d at 642 (noting agency 

relationship may exist between a parent and its subsidiary); Ritter, 987 S.W.2d at 384-85 

(conducting two separate analyses, one for piercing the corporate veil and one for agency, 
104

with two separate holdings); see also, e.g., Satellite Cable Servs., Inc. v. N. Elec. Co-op., 

Inc., 581 N.W.2d 478, 481-82 (S.D. 1998)(noting “a parent corporation may be held 

accountable for the conduct of its subsidiary when an agency relationship exists between 

them,” and finding no need to decide whether the “mere instrumentality” exception to the 

rule of corporate separateness applied in case because ample evidence existed to establish 

that an agency relationship existed between parent and subsidiary); Chrysler Corp. 

(Delaware) v. Chaplake Holdings, Ltd., 822 A.2d 1024, 1035 (Del. 2003); Kissun v. 

Humana, Inc., 479 S.E.2d 751 (Ga. 1997); Mobil Oil, 718 F.Supp at 271. Under an 

agency theory, the court “may attribute the actions of a subsidiary company to its parent 

where the subsidiary acts on the parent’s behalf or at the parent’s direction.” C.R. Bard, 

Inc. v. Guidant Corp., 997 F.Supp. 556, 560 (D.Del. 1998). One corporation may assume 

the role of the second corporation’s agent in the course of one or more specific 

transactions. But “a corporation does not become an agent of another corporation merely 

because a majority of its voting shares is held by the other.” Bacon, 63 S.W.3d at 642 

(quoting Restatement (Second) of Agency §14M). 

Agency Distinguished from Piercing the Corporate Veil

The agency theory differs from piercing the corporate veil in theory and 

operation. Under an agency theory, the court attributes specific acts to the parent 

corporation, as principal, because of the parent’s authorization of those acts. Bard, 997 

F. Supp. at 560. Only the precise conduct instigated by the parent is attributed to the 

parent. Id. (internal quotation omitted). The rest of the subsidiary’s actions still pertain 

only to the subsidiary. Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F.Supp. 1458, 

1464 (D.Del 1991)(citing Lea Brilmayer & Kathleen Paisley, Personal Jurisdiction and 
105

Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 Calif.L.Rev. 1 

(1986)). The parent corporation is held liable precisely because the subsidiary acted on 

behalf of or at the parent’s direction. Bard, 997 F.Supp at 560. When legal liability is 

predicated on principles of agency, courts do not ignore or set aside the existence and 

entity of the subsidiary. Mobil Oil, 718 F.Supp at 271; see also Lowendahl, 287 N.Y.S. 

at 74. Rather the separate corporate identity of the subsidiary is affirmed, and the two 

corporations remain distinct entities. Id. The opposite is true when courts pierce the 

corporate veil. Mobil Oil, 718 F.Supp at 271; Lowendahl, 287 N.Y.S. at 74. In those 

situations, courts hold parent companies liable because of their total control and their 

improper use of the subsidiary. In such a situation, courts set aside and ignore the 

subsidiary’s corporate entity to hold the parent liable. Mobil Oil, 718 F.Supp at 271; 

Lowendahl, 287 N.Y.S. at 74. All activities – and liabilities – of the subsidiary become 

those of the parent. Applied Biosystems, at 1464 (citing Brilmayer & Paisley, supra).

One of the essential elements of agency relationship is that the principal has the 

right to control the conduct of the agent with respect to matters entrusted to him. State ex 

rel. Elson v. Koehr, 856 S.W.2d 57, 60 (Mo. banc 1993)(citing Restatement (Second) of 

Agency § 14 and adopting the Restatement definition of an agency relationship). 

Complete domination or control of the agent by the principal, however, is not required to 

establish an agency relationship. Mobil Oil, 718 F.Supp at 271. Nor is complete 

domination and control the underlying reason why courts hold a principal liable for the 

actions of its agent. A traditional agency theory focuses on the arrangement between the 

parent and the subsidiary, the authority given in that arrangement, and the relevance of 

that arrangement to the plaintiff’s claim. Bard, 997 F.Supp at 560; see also Bacon, 63 
106

S.W.3d at 642. Courts must avoid “the notion that a parent company can be held liable 

for the obligations of a subsidiary [under the agency theory] purely on the basis of 

domination and control.” Bard, 997 F.Supp at 560 (quoting Mobil Oil, 718 F.Supp. at 

271 n. 15). 

Ritter Agency Test

The children rely on the Ritter-Sedalia-Blackwell line of cases as the test in 

Missouri for establishing a traditional principal-agent relationship between two 

corporations. 

In Ritter, our Court stated:

In order to establish a principal-agent relationship between two corporate 

entities, there must be such domination and control that the controlled 

corporation has, so to speak, no separate mind, will or existence of its own

and is but a business conduit for its principal. To hold a parent liable for 

its subsidiary’s acts, the control must be actual, participatory and total.

Ritter, 987 S.W.2d at 385 (emphasis added).

We believe this Ritter agency test is a flawed statement of traditional agency law, 

for three reasons: (1) it swallows the piercing-the-corporate-veil doctrine; (2) it 

developed out of piercing-the-corporate-veil jurisprudence; and (3) it runs counter to the 

agency test set forth by the Missouri Supreme Court in Bacon. That Missouri courts may 

have blurred the lines between, or confused the two theories of liability is no surprise; we 

would not be the first or only court to do so. 

Swallows Piercing the Corporate Veil

To begin, notice how the Ritter test for agency is nearly identical to the first 

element of the Collet test for piercing the corporate veil, said element again being:
107

(1) Control, not mere majority or complete stock control, but complete 

domination, not only of finances, but of policy and business practice in 

respect to the transaction attacked so that the corporate entity as to this 

transaction had at the time no separate mind, will or existence of its own

Collet, 708 S.W.2d at 284 (emphasis added). To pierce the corporate veil, a plaintiff 

must not only show complete domination, but he must also show that the corporate form 

was established or used for some improper purpose. Such is not the case with the Ritter

agency test. As set forth in Ritter, a plaintiff could hold a corporation liable for another 

corporation’s acts, such as the acts of its subsidiary, by merely showing complete 

domination and control. Indeed, this is what the children sought to do in this case. As 

we see it, this runs completely counter to, and renders meaningless, the longstanding, 

well-established doctrine of piercing the corporate veil. If the Ritter test correctly stated

the test for corporate agency, Missouri would have no reason to have a distinct test for 

piercing the corporate veil. 

Roots

Next, tracing the history of the Ritter agency test shows that the test developed 

from piercing-the-corporate-veil cases, not traditional agency cases. In setting out the 

standard for establishing a principal-agent relationship between two corporate entities, 

the Ritter court quoted the test set out in Sedalia Mercantile Bank and Trust Co. v. Loges 

Farms, Inc., 740 S.W.2d 188 (Mo. App. W.D. 1987). Sedalia involved a parentsubsidiary relationship. The plaintiffs pursued an agency theory at trial, contending that 

the subsidiary acted on behalf of and as agent for the parent corporation. Our Western 

District, in assessing whether a principal-agent relationship existed, set out the test later 

enunciated and quoted by the Ritter court. Sedalia, 740 S.W.2d at 202-03. The Court 

then held that no principal-agent relationship existed between the parent corporation and 
108

its subsidiary because the plaintiffs failed to prove any pervasive involvement, or any sort 

of actual, participatory and total control on the part of the parent corporation. Id. at 203. 

In setting out the agency test ultimately used in Ritter, and relied upon by the 

children in this case, the Sedalia court cited and quoted a Missouri Supreme Court case 

from 1969, Blackwell Printing Co. v. Blackwell-Wielandy Co., 440 S.W.2d 433 (Mo. 

1969), and William Fletcher’s treatise, Cyclopedia, Corporations. The cited section of 

Fletcher’s treatise, however, deals with piercing the corporate veil, as does the Blackwell

case. The Blackwell court rejected the position that the defendant was the “alter ego” of a 

realty company, reasoning: 

A corporation is ordinarily an entity, separate and apart from its 

stockholders, and mere ownership of all the stock of one corporation by 

another, and the identity of officers of one with officers of another, are not 

alone sufficient to create identity of corporate interest between the two 

companies or to create the relation of principal and agent or to create a 

representative or fiduciary relationship between the two. Something more 

than majority stock control is required. There must be such domination 

and control that the controlled corporation has, so to speak, no separate 

mind, will or existence of its own and is but a business conduit for its 

principal. This was not shown. 

Blackwell, 440 S.W.2d at 436-437 (internal citations omitted)(emphasis added).

Blackwell was a piercing-the-corporate-veil case; it was not a traditional agency 

case. But, for reasons unknown to this Court, the language from Blackwell was 

transformed in Sedalia and then Ritter into stating the test for a traditional agency 

relationship between two corporate entities. Perhaps it is part and parcel of the confusion 

created by the imprecise and interchangeable terminology. Maybe it is the language that 

mere ownership and identity of officers is “not alone sufficient to create identity of 

corporate interests between the two companies or to create the relation of principal and 

agent ....” We suppose one could take the Court’s language as saying one needs to show 
109

complete domination and control in order to establish a principal-agent relationship. 

Again, in our view, this swallows the doctrine of piercing the corporate veil. Moreover, 

it is dicta at best. Whatever the reasons, we believe our courts have misapplied this 

language from Blackwell in those cases, such as Sedalia and Ritter, brought under 

traditional agency principles. 

We further note that Blackwell’s predecessors are also all piercing-the-corporateveil cases. In setting out the above-quoted language, the Blackwell court cited Turpin, a 

Missouri Supreme Court decision from 1966.50 Turpin v. Chicago, Burlington & Quincy 

R.R. Co., 403 S.W.2d 233 (Mo. banc 1966). Turpin, in turn, quoted the federal case 

Fawcett v. Missouri Pac. R.R. Co., 242 F.Supp. 675, 677-78 (W.D. La 1965), and 

Fawcett in turn quoted language from Kentucky Elec. Power Co. v. Norton Coal Mining 

Co., 93 F.2d 923 (6th Cir. 1938). Although the courts in these three cases did not use the 

terminology “piercing the corporate veil,” the courts in all three cases rejected attempts to 

hold a parent company liable because there was no showing of impropriety in the 

establishment or use of the subsidiary. Thus, we conclude the operative doctrine was 

piercing the corporate veil, and not traditional agency. This long history, with roots deep 

in piercing-the-corporate-veil jurisprudence, further supports our conclusion that 

Missouri courts have misapplied the language and statements of law contained in 

Blackwell. 

Agency Test in Bacon 

In addition to this flawed doctrinal development, the Ritter test for establishing a 

principal-agent relationship between corporations runs contrary to the teachings of our 

 50 The Blackwell court, like the Sedalia court, also cited to a section of Fletcher’s treatise dealing with 

piercing the corporate veil.
110

Missouri Supreme Court in State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641 (Mo.

banc 2002). 

At its core, Bacon is a venue case. However, the case involved a parent 

corporation and its wholly-owned subsidiary, and it involved traditional agency theory. 

We therefore find the case pertinent. Plaintiffs in the underlying action against Ford 

predicated venue in Greene County because Ford Motor Credit Company, Ford’s whollyowned subsidiary, maintained an office in Greene County and acted as Ford’s “agent for 

the transaction of its usual and customary business” there. Ford raised a defense of 

improper venue. Bacon, 63 S.W.3d at 642. To resolve the venue question, our Supreme 

Court noted it must determine whether Ford Credit was Ford’s agent. Id. The Court then 

stated: 

“Agency is the fiduciary relation which results from the manifestation of 

consent by one person to another that the other shall act on his behalf and 

subject to his control, and consent by the other so to act.” Restatement 

(Second) of Agency sec. 1 (1958); State ex rel. Elson v. Koehr, 856 

S.W.2d 57, 60 (Mo. 1993). The Restatement specifically states, “A 

corporation does not become an agent of another corporation merely 

because a majority of its voting shares is held by the other.” Restatement 

(Second) of Agency sec. 14M. Therefore, an agency relationship 

between a parent and its subsidiary may only be established if the 

elements of an agency relationship exist. Id. at sec. 14.

In Elson, this Court adopted the Restatement definition of an agency 

relationship, which sets out three essential elements:

1) that an agent holds a power to alter legal relations between the 

principal and a third party; 

2) that an agent is a fiduciary with respect to matters within the 

scope of the agency; [and] 

3) that a principal has the right to control the conduct of the agent 

with respect to matters entrusted to the agent.... 

Elson, 856 S.W.2d at 60 [quoting Restatement (Second) of Agency §§12-

14]. The absence of any one of these three characteristics defeats the 

purported agency relationship. 
111

Bacon, 63 S.W.3d at 642. (Emphasis added). As we see it, our Supreme Court had before 

it a parent corporation and its subsidiary. The theory advanced and analyzed was a 

traditional agent relationship – not piercing the corporate veil. We conclude that the

Bacon test is the test in Missouri for establishing a principal-agent relationship between 

two corporations. 

The children here sought to hold Fluor liable under traditional agency principles 

merely because of its domination of and control of its subsidiaries. This is insufficient. 

Therefore, we hold that a principal-agent relationship was not established, and thus the 

parent company, Fluor, cannot be held liable for the actions of its subsidiaries under an 

agency theory purely on the basis of domination and control. The children did not plead 

and submit to the jury the elements of an agency relationship, as those elements are set 

out in Bacon. The children’s theory is further flawed in that they seek to hold Fluor 

liable based on its own acts rather than based on the acts of its subsidiaries.51 

Defendants insisted that the children’s theory of liability was not a valid 

submission for either piercing the corporate veil or for traditional agency, and that, 

therefore, the trial court should have not submitted it to the jury. We grant their point. 

We acknowledge that the trial court’s submission was supported by some existing 

Missouri cases. However, in our opinion, those cases misstate traditional agency law. 

We therefore will no longer follow Ritter. We reverse the judgment entered against Fluor 

on this theory of liability. 

 51 The instruction submitting this theory is likewise flawed. See further, under our discussion of the jury

instructions submitted in this case. 
112

Trial Rulings

We next turn to defendants’ allegations of error regarding the court’s voir dire and 

evidentiary rulings. Defendants contend the trial court erred in denying their motion for a 

mistrial after counsel for the children mentioned the Missouri Victims’ Compensation 

Fund during voir dire. Defendants next advance three points challenging the trial court’s 

rulings admitting testimony of several of the children’s expert witnesses. Lastly, 

defendants contend the trial court erred in excluding certain evidence. 

Preservation 

We begin our discussion of these allegations by emphasizing that an appellant 

must properly preserve their allegations of error in order to secure review on appeal. Syn, 

Inc. v. Beebe, 200 S.W.3d 122, 135 (Mo. App. W.D. 2006). Defendants here, in whole or 

in part, failed to preserve their allegations of error regarding these complained-of trial 

issues. Their failure to do so is fatal to their claims of error. A party must meet several 

requirements in order to preserve an issue for appellate review. For one, a party must 

raise an objection in the trial court. See, e.g., Payton v. Union Pac. R. R. Co., 405 

S.W.3d 1, 7 (Mo. App. E.D. 2013). We generally will not convict the trial court of error 

on an issue that was not put before it to decide. Smith v. Shaw, 159 S.W.3d 830, 835 

(Mo. banc 2005); Rouse v. Cuvelier, 363 S.W.3d 406, 418 (Mo. App. W.D. 2012); 

Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982). Moreover, a party 

must object in a timely fashion. See, e.g., Letz v. Turbomeca Engine Corp., 975 S.W.2d 

155, 168 (Mo. App. W.D. 1997). “A party should make any objection to the trial process 

at the earliest opportunity to allow the other party to correct the problem without undue 

expense or prejudice.” Sanders, 364 S.W.3d at 207. If a party does not make an 
113

objection at the time of the incident giving rise to the objection, we may deem the 

objection waived or abandoned. Id.; Letz, 975 S.W.2d at 168. Next, a party on appeal 

must base its claim of error on the same grounds raised in its trial objection. See, e.g., 

Gallagher v. DaimlerChrysler Corp., 238 S.W.3d 157, 168 (Mo. App. E.D. 2007). A 

point is preserved for appeal only if it is based on the same theory presented at trial. Id. 

A party may not advance a new objection on appeal. Id. Nor may the party alter or 

broaden the scope of the objection voiced at trial. Hill v. City of St. Louis, 371 S.W.3d 

66, 75 (Mo. App. E.D. 2012). Rather, an appellant must maintain a consistent theory of 

objection. Gallagher, 238 S.W.3d at 168. “[A]llegations of error not presented to or 

expressly decided by the trial court shall not be considered in any civil appeal from a jury 

tried case.” Rule 84.13(a); Hill, 371 S.W.3d at 75. 

We lastly note that a party on appeal must develop the issue raised in its point 

relied on in the argument portion of their brief. Smith v. Med Plus Healthcare, 401 

S.W.3d 573, 576 (Mo. App. E.D. 2013). Failure to support a point with relevant legal 

authority or argument beyond conclusory statements preserves nothing for appeal. 

Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 586 (Mo. App. E.D. 2009). In 

such instances, we will deem the issue abandoned. Med Plus Healthcare, 401 S.W.3d at 

576. To the extent that defendants’ allegations of error are preserved, we emphasize that 

the complained-of decisions lie within the discretion of the trial court. Callahan, 863 

S.W.2d at 867 (mistrial); Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc

2011)(admission or exclusion of evidence); Swartz v. Gale Webb Transp. Co., 215 

S.W.3d 127, 129-30 (Mo. banc 2007)(expert testimony). We will reverse a denial of a 

motion for mistrial only where there has been a manifest abuse of discretion. Callahan, 
114

863 S.W.2d at 867. Similarly, we will reverse the trial court’s ruling admitting or 

excluding evidence only if the trial court clearly abused its discretion. St. Louis Co. v. 

River Bend Estates Homeowner’s Ass’n, 408 S.W.3d 116, 123 (Mo. banc 2013). A trial 

court abuses its discretion when its ruling is clearly against the logic of the circumstances 

then before the court and is so arbitrary and unreasonable that it shocks the sense of 

justice and indicates a lack of careful consideration. Moore, 332 S.W.3d at 756. 

“Appellate review of the trial court’s exercise of discretion does not pivot on whether a 

reviewing court would have exercised its discretion in like manner, but whether the trial 

court abused its discretion.” Chapman v. St. Louis County Bank, 649 S.W.2d 920, 921 

(Mo. App. E.D. 1983). If reasonable persons can differ as to the propriety of the trial 

court’s action, we then cannot say that the trial court abused its discretion. River Bend

Estates, 408 S.W.3d at 123. 

With these principles in mind, we turn to the trial court’s voir dire ruling. 

Voir Dire

In questioning the venire panel on the issue of punitive damages, counsel for the 

children informed the panel that half of any punitive damages awarded goes to the 

Missouri Victims’ Compensation Fund.52 He then inquired if anyone on the panel 

 52 In full, counsel for children asked:

Thank you, your Honor. What I would like to know is which side, if you’re on the side 

of those people who are in favor of deterring corporations with punitive damages, 

deterring them from doing something wrong in the future by assessing punitive damages 

or like those who don’t believe in doing that and believe that they should just be taken 

care of each time something happens again in the future. Can I see what thoughts any of 

you may have on that? Do you have any thoughts?

Let me ask you another question. Some of the money – some people like the fact that 50 

percent of punitive damages assessed go to the Missouri Victims’ Compensation Fund. 

Other people don’t like the fact that 50 percent or half of any punitive damages assessed 

go to the State of Missouri Victims’ Compensation Fund. Anyone of those that may not 

believe or like the fact that these go to, half the punitive damages go to Victims’ 

Compensation Fund? Does anyone have any feelings the other way? 
115

disagreed with that distribution. Defense counsel remained silent. Five veniremembers 

asked follow-up questions about punitive damages and the fund. Children’s counsel 

responded, answering their questions, expounding on the purpose of the fund, noting that 

distribution to the fund was a matter of law, and clarifying that plaintiffs receive the other 

half of the assessed damages. Defense counsel remained mute. Counsel did not raise an 

objection directed toward the discussion about the fund until over an hour later, during 

the court’s afternoon recess, when counsel requested a mistrial. After hearing each side’s 

arguments, the trial court denied defendants’ request. The following morning, defendants 

filed a written motion for mistrial. The trial court expressed its concern, requested a 

written response from the children, and took the motion under submission. The court 

took up the motion the following morning and entertained lengthy arguments. After 

hearing those arguments and reviewing submitted caselaw and the transcript, the trial 

court denied defendants’ motion.

Defendants contend the trial court should have declared a mistrial. They insist 

information regarding the fund should never be disclosed, because it is wholly irrelevant 

to any of the issues presented to the jury to decide, and because it is highly prejudicial in 

that it invites enhancement of the punitive-damage award to counteract the distribution to 

the fund. Defendants argue the children had no purpose for mentioning the fund other 

than to improperly engender sympathy and boost damages, and adamantly proclaim 

prejudice was “graphically” illustrated thirteen weeks later, when the jury awarded 

“exactly two times” the amount of punitive damages suggested by the children. 

We do not condone counsel’s line of questioning. Granted, counsel is afforded 

wide latitude in examining prospective jurors for possible bias and their state of mind
116

regarding the matter at hand. Littell v. Bi-State Transit Dev. Agency, 423 S.W.2d 34, 36-

7 (Mo. App. 1967)(quoting 31 Am.Jur, Jury, s 139); see also Ashcroft v. TAD Res. 

Intern., 972 S.W.2d 502, 507 (Mo. App. W.D. 1998)(holding trial court erred in 

preventing plaintiff from inquiring as to the bias and prejudice of the venire against the 

award of punitive damages). On the other hand, Missouri courts have long condemned as 

highly improper counsel’s disclosure of extrinsic matters that, to counsel’s knowledge, 

will tend to create prejudice against the other party. See Welch v. Sheley, 443 S.W.2d 

110, 117 (Mo. 1969); Scott v. W. Union Tel. Co., 109 S.W.2d 912, 914-15 (Mo. App. 

1937). While true, we will not disturb the trial court’s decision. Defendants did not 

timely object. Counsel clearly had the opportunity to object, and did object to other 

matters during this line of questioning, but as to the mention and discussion of the fund, 

defense counsel raised no objection. Instead, counsel remained silent, allowing the 

colloquy to continue.

Defendants cited two cases to the trial court: Giddens v. Kansas City S. Ry. Co., 

937 S.W.2d 300 (Mo. App. W.D. 1996) and Burke v. Deere & Co., 6 F.3d 497 (8th Cir. 

1993). In Burke, the court reversed a jury verdict, in part because the jury was informed

that a portion of any punitive-damage award would be paid into a civil trust fund 

administered by the court. Burke is a federal case applying Iowa law, and while 

instructive, it is not binding precedent. Moreover, the appellate court did not base its 

reversal solely on mention of the trust fund, as defendants advocate here. Burke, 6 F.3d 

at 513. The Giddens court upheld the trial court’s grant of a new trial for improper 

closing argument designed to inflame the jury, even though no objection had been lodged 
117

at trial. Giddens, however, dealt with closing argument, not voir dire, and the case did 

not involve the fund. Giddens, 937 S.W.2d at 306-07. 

Now on appeal, the defendants point to Henderson v. Fields, 68 S.W.3d 455 (Mo.

App. W.D. 2001), a case that did involve the fund.53 In that case, plaintiff’s counsel 

mentioned the fund during closing argument, and informed the jury that half of any 

money awarded went to the state and not the family. Counsel then immediately urged the 

jury to “send a message, be strong, take action.” Defense counsel objected, but did not 

give a legal or factual basis for the objection, and thus did not preserve the matter for 

appellate review. While the court on appeal ex gratia found the counsel’s comment 

regarding the fund improper, because it went beyond the evidence and instructions, in the 

end the appellate court could not say that manifest injustice had occurred in overruling 

the insufficient objection. The matter was not preserved for appellate review, and thus 

the appellate court did not disturb the verdict. The court simply was unwilling to convict 

the trial court of error for failing to sustain an insufficient objection. Henderson, 68 

S.W.3d at 470-71. 

We, too, are unwilling to convict the trial court of error under our circumstances. 

We further note that children’s counsel did not allude to the fund again during the 

remaining voir dire. Counsel did not mention the fund during the ensuing three months 

of trial, and he did not refer to the fund thirteen weeks later, when making closing 

 53 Defendants also cite several out-of-state cases holding that it is reversible error to inform juries about the 

allocation of a portion of punitive-damage awards to the state. Honeywell v. Sterling Furniture Co., 797 

P.2d 1019 (Ore. 1990)(holding trial court erred in instructing jury as to how any award of punitive damages 

would be distributed); Ford v. Uniroyal Goodrich Tire Co., 476 S.E.2d 565 (Ga. 1996)(holding trial court 

erred in instructing the jury that a portion of any punitive damages awarded would go to state treasury). 

Defendants also cite to In re Exxon Valdez, 229 F.3d 790, 798 (9th Cir. 2000), for the proposition that “a 

jury deliberating on the amount of a damages award is not to consider where the funds that constitute that 

award will come from, or where they will end up.” Again, these are not Missouri cases and thus are not 

binding precedent. Henderson is the only Missouri case cited by defendants or discovered by us that deals 

specifically with informing the jury about the fund. 
118

arguments to the jury. Lastly, contrary to defendants’ assertion, the jury did not award 

“exactly two times” the suggested amount of punitive damages. While the jury assessed 

more than requested, the jury did not simply double the suggested amount of punitive 

damages. 

Generally, we will not reverse the denial of a mistrial except upon a showing that 

the trial court manifestly abused its discretion. Callahan, 863 S.W.2d at 867. The trial 

court gave extensive and measured consideration to the issue, and its ruling is not 

contrary to Missouri precedent.54 Defendants have not persuaded us that the trial court 

abused its considerable discretion in denying their motion. We deny this point. We turn

now to the trial court’s evidentiary rulings.

Evidentiary Rulings

Defendants’ first challenge the trial court’s rulings regarding the testimony of 

Professor Henry Ordower and Professor James Fisher. Defendants contend these 

witnesses’ testimony was riddled with legal conclusions about partnerships, and the 

rights, obligations, and liabilities of partners in general and the defendants in particular. 

They argue that the witnesses’ testimony was not only improper and inadmissible, as 

encroaching on the court’s duty to interpret documents and instruct on the law, but also 

that it was incorrect and led the jury astray. Defendants boldly assert the trial court 

“abdicated its duty to control the admission of evidence and instruct the jury on the law,” 

and instead allowed the two witnesses to “poison the well” with improper opinions and 

impose their “own brand of justice” on the proceedings. They maintain that “the jury’s 

 54 Although we are dealing with voir dire here, and not closing argument, we note that the committee 

drafting Missouri’s approved jury instructions takes no position on whether the interest of the State and 

fund can be argued to the jury. MAI 35.19, Committee Comment [H] (2012 Revision). 
119

view of the applicable law and the defendants’ relationships was irreparably tarnished 

and distorted by the court’s abandonment of its function as evidentiary gatekeeper.” 

Defendants’ protests go too far. We begin by addressing defendants’ allegations 

concerning Professor Ordower. 

Professor Henry Ordower 

Defendants challenge court rulings during two different portions of Professor 

Ordower’s testimony – his testimony about partnerships in general and his testimony 

regarding the interpretation of the various partnership agreements.

55 Professor Ordower 

began his testimony by describing the considerations and decisions parties must make 

and take into account in deciding what format to use for their business. He explained that 

in the 1980s, when the Doe Run partnership was formed, one had basically two choices 

for a business entity – either a corporation or some type of a partnership, be it general or 

limited. Professor Ordower then generally described the benefits and disadvantages of 

forming a partnership, including that the partners are liable for the partnership’s debts. 

The professor also generally considered the disadvantages of forming a corporation. And 

then, in response to a hypothetical posed by children’s counsel, Professor Ordower 

outlined the responsibilities and liabilities of partners. Professor Ordower then moved on 

and testified specifically about the various partnership agreements and other contractual 

arrangements among the defendants. The trial court overruled defendants’ various 

objections protesting that the professor’s testimony constituted legal conclusions. 

 55 Defendants also complain that the trial court repeatedly referred to the witness as “Professor,” and accuse 

the trial court of abdicating its duty to control the admission of evidence. We doubt we have reached the 

point where simple courtesy and civility no longer have a place in our courtrooms. Henry Ordower is a 

professor of law at St. Louis University School of Law, and has been so for over thirty years. The trial 

court similarly referred to defendants’ witnesses by their professional titles. We particularly note that the 

trial court referred to defense witness Benjamin Akande by the title “Doctor,” in accord with that witness’s 

doctorate degree. We reject this overstated complaint. 
120

Defendants allege the trial court abused its discretion in allowing Professor 

Ordower to express opinions containing legal conclusions. In particular, they contend the 

court improperly permitted Professor Ordower to instruct the jury on substantive 

partnership issues, particularly the rights and liabilities of partners.56 And they assert the 

trial court improperly permitted Professor Ordower to interpret the various documents, 

and to advise the jury of their supposed legal effect. In sum, defendants complain that the 

trial court permitted Professor Ordower to conduct a “flawed tutorial” for the jury on the 

law of partnerships and the interpretation of partnership documents. They maintain it 

was for the trial court, not the witness, to instruct the jury on the law and to examine the 

pertinent partnership documents to ascertain the respective rights, duties, responsibilities, 

and obligations of the various parties. 

We deny this point, for a number of reasons. First, defendants objected to some, 

but not all of the now complained-of testimony. Thus, their point is not entirely 

preserved for our review. Next, although defendants complain about Professor 

Ordower’s testimony regarding the general nature and workings of a partnership, 

 56 As to Professor Ordower’s general testimony regarding partnerships, defendants complain about the 

following statements:

1. All partners are directly liable for the debts of the partnership and for any injury that creates a 

liability to a third party.

2. When businesses become partners in a partnership, “their histories come along with them,” and if 

they have debts, “they’re now the responsibility of the partnership and all of its partners.”

3. When a partner commits a tort, “[t]he partnership and each partner is fully responsible.”

4. When a new partner joins the partnership, “he becomes liable for the partnership’s history.”

5. If partners use herbicides, and some might have been used before they became partners, and 

someone later gets sick, the partners have a long-term problem, and “there’s no way they can 

terminate that liability, that responsibility, unless the injured party, who is now their potential 

creditor, lets them off the hook.”

6. If corporations transfer an existing business to a partnership, “then the partnership would take on 

the liabilities of those two separate businesses.”

Defendants did not object to statements 2 and 6. Defendants claim that these statements, “among others,” 

were improper and that they “need not detail any more of this astonishing performance.” This Court cannot 

review these “other” statements when defendants have neither bothered to point out what those statements 

are nor identify what specific ruling they are challenging. 
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defendants have not explained or shown how those statements were incorrect statements 

of law. Further, we disagree with defendants that the complained-of statements 

constituted impermissible “legal opinions,” or that they usurped the court’s prerogative to 

instruct the jury on each element of the children’s case. Professor Ordower did not tell 

the jury what decision to reach. Rather, Professor Ordower provided useful background 

information regarding the nature of partnerships, the differences between corporations 

and partnerships, the benefits and disadvantages of each business relationship, and the 

responsibilities and liabilities of partners – all topics unfamiliar to the average layperson. 

Missouri law allows a qualified expert to testify to an opinion in a civil action if his or her 

“scientific, technical or other specialized knowledge will assist the trier of fact to 

understand the evidence or to determine a fact in issue.” Section 490.065.1; Hill, 371 

S.W.3d at 74; see also George Weis Co., Inc. v. Dwyer, 956 S.W.2d 335, 339-40 (Mo.

App. E.D. 1997); Wulfing v. Kansas City Southern Ind., 842 S.W.2d 133, 153-54 (Mo.

App. W.D. 1992)(holding that expert testimony on complex procedural matters, industry 

standards, and highly technical statutes and regulation is permissible to allow the jury to 

evaluate the conduct of the parties, even though the testimony covers matters of law)

(case overruled on other grounds by Executive Bd. of Missouri Baptist Convention v. 

Carnahan, 170 S.W.3d 437 (Mo. App. W.D. 2005)).

In fact, defendants themselves called an expert to similarly testify. Defendants 

called Dr. Benjamin Akande, Professor of Economics and Dean of the School of 

Business and Technology at Webster University, as an expert to testify as to corporate 

and partnership structure, as well as the role, oversight, and responsibilities of parent 

corporations with respect to wholly-owned subsidiaries. Dr. Akande described generally 
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the features and benefits of a corporation, including that the corporate structure affords 

limited liability for the owners, and that a shareholder’s liability is limited to only the 

liabilities and assets of the organization. He also explained that a corporation could be an 

owner and investor in other corporations and that corporations could also invest in 

businesses that are in a different line of business. He described how corporate entities 

operate, including how they relate with parent and subsidiary corporations. The children

contend that Dr. Ordower’s testimony was needed in light of Dr. Akande because the 

defendants continually obscured the difference between corporations and partnerships, 

misled the jury as to the nature of the partnership, and urged that Doe Run was a separate 

legal entity from its partners. Indeed, Dr. Akande testified that the partnership committee 

functioned and operated like a corporate board of directors. He described Massey and 

DRIH as “investors.” He described Fluor as merely a “parent,” an “owner,” and an 

“investor,” that served in a more tangential, oversight capacity by receiving reports from 

its subsidiaries and approving budgets. He specifically testified that the partnership 

committee did not operate the smelter. And he also specifically opined that Fluor, 

Massey, and DRIH were not responsible for the day-to-day operations of the smelter. 

We discern no meaningful distinction in the nature of testimony provided by Dr. 

Akande and that of Dr. Ordower. Based on the evidence and documents supplied to him, 

Dr. Akande expressed his opinions and explained defendants’ version of the business 

organizations at play. Dr. Ordower did the same for the children. Both experts were 

disclosed and deposed prior to trial. Given all these circumstances, we cannot find an 

abuse of discretion on the part of the trial court in allowing Professor Ordower’s 

testimony.
123

As to defendants’ complaint about Professor Ordower’s interpretation of the 

various agreements, and their charge that the professor distorted, manipulated, and 

mischaracterized those agreements, thereby misleading the jury, this was a matter for 

cross-examination, rebuttal evidence, and argument. 

Although defendants protest that it was for the court, not the witness, to instruct 

the jury on substantive partnership issues and the meaning of the various agreements, the 

real crux of their complaint is that the court allowed plaintiffs, through Professor 

Ordower, to “brainwash” the jury, from the very first day of trial, with the notion that 

defendants bore responsibility for “historic liabilities.” They charge that Professor 

Ordower’s “flawed polemic” on partnership responsibilities and the meaning of the 

partnership documents set the predicate for the court’s erroneous instructions allowing 

plaintiffs to blame defendants for every “historic” lead emission that had occurred since 

the smelter opened in 1892. They insist the jury, led astray by Professor Ordower’s 

misleading, inadmissible opinions and mischaracterizations, imposed upon defendants the 

consequences of every perceived misdeed that had ever occurred at the smelter. 

Again, defendants’ argument is ill-founded. The children did not submit their 

case on the theory of assumed liabilities. Liability here was limited to the times 

defendants held their respective partnership interest. Just because the jury awarded a 

large verdict does not mean that they held defendants liable for “every perceived 

misdeed,” as defendants contend. Defendants have not demonstrated an abuse of 

discretion on the part of the trial court in allowing Professor Ordower’s testimony, and 

we discern none. The court did not “abdicate” its responsibility to control the admission 
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of evidence, as defendants charge. Rather, the trial court gave careful consideration to 

the testimony and the defendants’ challenges to that testimony. We deny this point. 

Professor James Fisher

Defendants make much the same argument regarding Professor James Fisher. 

They allege the trial court abused its discretion in allowing the professor to express 

opinions containing legal conclusions, ethical mandates, and “good business practices.” 

The children designated Professor Fisher, a marketing and business ethics 

professor at St. Louis University, to testify on the topics of “corporate structure, 

interrelationship of defendants, liability, and responsibility for wrongful conduct.” At his 

deposition, Professor Fisher stated children’s counsel asked him to address issues having 

to do with business ethics and responsibility. 

Defendants first contend that Professor Fisher was not qualified to give his 

proposed opinions because he was “not a lawyer,” and had “no expertise in 

environmental or regulatory matters.” Defendants’ bare contention is supported only by 

conclusory argument and is unsupported by any authority, save for a cursory citation to 

the statutory section dealing with expert witnesses. Consequently, we hold that 

defendants have abandoned their argument. See, e.g., MedPlus Healthcare, 401 S.W.3d 

at 575-76 (holding point deemed abandoned where appellant cited no authority and failed 

to develop issue raised in point relied on).

Defendants also argue that the trial court allowed the professor to mislead the 

jurors about defendants’ obligations. They complain that the court, in allowing Professor 

Fisher’s testimony, authorized the professor to create a new list of legal duties for 

corporations – ranging from “do no harm” to a mandatory buyout of neighborhood 
125

properties – and to testify that defendants breached those duties. They argue that the trial 

court should have excluded Professor Fisher’s “ethical” testimony because the jury may 

have assumed that breach of an ethical obligation equates to a violation of the applicable 

legal standard. 

Defendants’ argument suffers from several different flaws. To begin, their 

assertion regarding the confusion caused by Professor Fisher’s testimony is speculative. 

More critically, however, is the fact that the complained-of testimony is either largely 

unpreserved or constitutes cumulative testimony. As such, defendants state no grounds 

upon which to predicate reversal. Gateway Foam Insulators, Inc. v. Jokerst Paving & 

Contracting, Inc., 279 S.W.3d 179, 189 (Mo. banc 2009)(holding appellant can show no 

prejudice, and thus no grounds for reversal, from the admission of allegedly inadmissible 

evidence if the challenged evidence was cumulative to other evidence admitted without 

objection). 

Defendants first specifically complain about Professor Fisher’s testimony that 

corporations have a responsibility “to do no harm, to communicate honestly, and even 

openly, and not to use [their] knowledge to disadvantage the public.” Defendants, 

however, did not object to this testimony. Defendants also take issue with Professor 

Fisher’s testimony that Fluor had a primary responsibility for the lead pollution in 

Herculaneum, and that Fluor had “a duty of care to take responsible and effective action 

not to do harm. To be honest. To be a good communicator.” Defendants next take issue 

with Professor Fisher’s testimony that corporations should “never” choose concerns 

about class-action suits over protecting the neighbors, and that a buyout in Herculaneum 

was “doable” and that not doing it was an unreasonable choice. The trial court admitted 
126

this testimony over defendants’ objections. However, once again, this testimony is 

cumulative. 

Defendants next complain that Professor Fisher wandered afar from ethical 

considerations and, despite his lack of legal training, opined that the risk of legal action 

by the Herculaneum community was one of the liabilities undertaken by the partners 

when the partnership was formed. Defendants also assert the trial court should have 

disallowed the professor’s statement that Massey acquired those same liabilities when it 

received its partnership interest. Again, although defendants objected at trial, this 

complained-of testimony was entirely cumulative to other testimony. 

Lastly, defendants challenge Professor Fisher’s various criticisms of defendants. 

Fisher criticized defendants for attempting to “avoid,” “reduce,” or “put off” expenditures 

in order to increase profits. He criticized Fluor’s emphasis on “profit” and its “ruthless 

prioritization” of spending. Fisher stated that Doe Run’s refusal to rent homes to families 

with children was a “way of avoiding liability,” and he stated that it was “outrageous” 

for a corporation not to report the results of air monitoring to the people in the 

community. He criticized Doe Run’s communications with the community as “clearly 

misleading,” as “light and breezy” to mask the gravity of the situation, and as “trying to 

make Doe Run appear as a good corporate citizen.” Again, defendants did not object to 

any of these complained-of statements. Moreover, the vast majority of the objections at 

trial were solely on grounds that such testimony was “speculative” – a ground not argued 

on appeal. Furthermore, the complained-of testimony is cumulative of other testimony, 

either of other parts of the professor’s own testimony or that of other witnesses. 

Obviously such evidence is damaging to the defendants. And Professor Fisher’s opinions 
127

are pointed. However, these circumstances do not render the evidence inadmissible. 

Defendants were free to cross-examine Professor Fisher, adduce their own rebuttal 

evidence, and challenge the professor’s opinions in closing arguments. 

In sum, defendants will not be heard to complain when they did not object, when 

they objected on grounds other than those now asserted, or when they complain of 

cumulative evidence. We deny this point. 

Dr. George Rodgers, Dr. Carl Hansen, and Robert Johnson

For their next evidentiary point, defendants assert the trial court abused its 

discretion in admitting “damage evidence” offered by three of the children’s experts – Dr. 

George Rodgers, Dr. Carl Hansen, and Robert Johnson. Dr. Rodgers, a pediatric 

toxicologist, testified about the effects of lead on children. Dr. Hansen, a vocational 

rehabilitation expert, estimated the children’s lost earning capacities. Mr. Johnson, an 

economist, calculated the children’s lifetime earnings losses. Defendants contend the 

experts’ opinions were not based on competent evidence but instead were “riddled” with 

“layers of speculation and conjecture” about the blood lead levels the children may have 

had as small children, the effects of lead exposure on children’s IQs, the children’s 

diminished educational and occupational prospects, and the children’s projected lifetime 

earnings losses. In sum, defendants complain that the children built their compensatory 

damage model by stacking the “speculative musings” of these different experts to 

manufacture multi-million-dollar damage claims for each child. 

Defendants complain about various aspects of each witness’s testimony. 

Defendants, however, failed to object at trial to the testimony of which they now 
128

complain. We also note that much of the complained-of testimony came in during 

defendants’ cross-examination of the witnesses. We deny this point. 

Stock Sale Agreement

For their last evidentiary point, defendants allege the trial court abused its 

discretion in excluding the 1994 Stock Sale Agreement because the agreement and its 

accompanying schedules were relevant. The agreement is the one between Fluor and 

DRAC, for Fluor’s sale of St. Joe to DRAC. Defendants attempted to use the documents 

during their cross-examination of Professor Ordower, and then later sought to introduce 

the documents during the punitive-damage portion of the trial. The trial court excluded 

the documents in both instances. 

Defendants contend generally that the agreement and its accompanying schedules 

were relevant to challenge their liability for actual and punitive damages, and the 

assessment of an amount for punitive damages. In particular, they contend the evidence 

was relevant in two instances: first, to show the sale of liabilities; and second, to show 

the presence of a multi-million dollar reserve on St. Joe’s books for environmental 

projects and expenditures. 

As to the sale of liabilities, defendants argued at trial that the stock-sale agreement 

was relevant to show that Doe Run was subject to liabilities associated with both the 

current and prior conduct of the lead business, and that those liabilities be they personal 

injury, environmental, or otherwise continued with St. Joe, and then transferred to DRAC 

as part of the sale. Defendants advance little to no argument along these lines on appeal. 

Rather, they now simply allege, in cursory fashion, that the agreement was “relevant to 

show the relationship of the parties and the parties’ treatment and understanding of the 
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responsibilities of those involved in the operation of the smelter.” They contend that the 

agreement would have “completed the historical narrative of the smelter,” and that the 

agreement was relevant “to the disposition of [the partnership] interests, the provision for 

environmental issues relating to smelter operations, and the continuation of St. Joe’s 

responsibility for the smelter.” This is the sum total of defendants’ argument. 

Consequently, because they failed to carry forth their complaint from trial, and because 

they failed to support their position with argument beyond conclusions, defendants have 

abandoned this issue. 

As to the environmental reserve, defendants on appeal argue that the reserve’s 

existence directly rebuts the children’s contention that defendants refused to spend 

money on environmental projects, that they were insensitive to environmental issues, and 

that they disregarded the safety of the Herculaneum community. Thus, defendants 

contend the information was directly relevant to their liability for punitive damages. 

They additionally submit that the presence of a 24.8 million dollar reserve warranted 

consideration by the jury in assessing punitive damages. Defendants did not advance 

these arguments at trial. There, defendants stated simply that they wanted to read into the 

record that portion of the agreement showing a reserve for environmental projects among 

the liabilities going to DRAC, in order to show that money was left in the company for 

meeting environmental actions underway as well as for future environmental issues. 

Defendants have not preserved this issue for our review. We will not convict the trial 

court of error on arguments not put before it. 

We further critically note that defendants failed to demonstrate what prejudice

they suffered from the trial court’s exclusion of the agreement. In order to obtain a 
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reversal based on the exclusion of evidence, an appellant must demonstrate that the 

excluded evidence would have materially affected the merits of the cause of action. 

Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 872 (Mo. App. E.D. 2009); 

Byers v. Cheng, 238 S.W.3d 717, 726 (Mo. App. E.D. 2007); Section 512.160.2; Rule 

84.13(b). In other words, the appellant must demonstrate resulting prejudice by showing 

that the outcome of his case would have been different had the excluded evidence been 

admitted. Williams, 281 S.W.3d at 875; McGuire v. Kenoma, LLC., 375 S.W.3d 157, 

185 (Mo. App. W.D. 2012). Defendants, however, failed to argue prejudice. They only 

advance a bare assertion concluding that exclusion of the evidence was “prejudicial 

error.” Because defendants failed to articulate and demonstrate prejudice, grounds for 

reversal do not exist, even if they had defendants preserved the issue for our review. We 

deny this point. 

Jury Instructions

We next turn to defendants’ allegations regarding the compensatory-damage 

verdict directors.57 The children proffered four such verdict directors: one submitted 

their domination theory as to Fluor; the other three submitted their partner theory as to 

Massey, DRIH, and Fluor, respectively.58 

The trial court held a lengthy instruction conference – at defense counsel’s office, 

on a Sunday, no less. Defendants raised numerous objections, and the trial court 

entertained extensive arguments by both parties. Defendants’ mischaracterization, 

declaring that the trial court “summarily” overruled their objections, is ludicrous. 

 57 Defendants also challenge the punitive-damage verdict directors. We address that challenge separately, 

in conjunction with our discussion of punitive damages. 58 Each child submitted identical instructions, the only difference being the insertion of the particular 

child’s name. 
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Defendants claim the trial court erred in submitting all of the verdict directors. 

Because of our holding rejecting the children’s domination theory, we need not address 

defendants’ allegations of error regarding the instruction submitting that theory.59 Thus, 

we confine our discussion to defendants’ complaints about the partner verdict directors.60 

 59 However, we note that the instruction does not attribute the actions of an agent to the principal, nor 

follow the Bacon elements. Rather, the instruction simply ascribes blame to Fluor, the purported principal. 

Thus, the instruction does not properly submit an agency theory. The instruction read:

On the claim of plaintiff (insert child’s name) for compensatory damages for personal 

injury against defendant Fluor Corporation, your verdict must be for plaintiff (---) if you 

believe:

First, defendant DRIH and Leadco Investments, Inc. were partners of the Doe Run 

Company Partnership, and

Second, before March 26, 1994, the adjacent community of Herculaneum was 

contaminated with unsafe levels of lead which originated from the smelter operations, 

and 

Third, before March 26, 1994, the Doe Run Company Partnership knew or had 

information from which it, in the exercise of ordinary care, should have known that the 

adjacent Herculaneum community was contaminated with unsafe levels of lead which 

originated from the smelter operations, and

Fourth, with respect to the Doe Run Company partnership, defendant Fluor Corporation 

had actual, participatory, and total dominion and control of partners DRIH and Leadco 

Investments, Inc. and exercised such dominion and control so DRIH and Leadco 

Investments, Inc. had no separate mind, will, or existence of their own but were mere 

conduits for defendant Fluor Corporation, and

Fifth, defendant Fluor Corporation, in the exercise of that dominion and control, allowed 

plaintiff (--), a resident of Herculaneum, to be exposed to unsafe levels of lead which 

originated from the smelter operations before March 26, 1994, and 

Sixth, defendant Fluor Corporation was thereby negligent, and

Seventh, such negligence directly caused or directly contributed to cause damage to 

plaintiff (--). 60 The partner verdict directors for Massey and DRIH were identical in all respects except for the particular 

defendant’s name and the ending date of the particular defendant’s involvement in the partnership. The 

verdict directors, with the challenged phrase in italics, read:

On the claim of plaintiff (--) for compensatory damages for personal injury 

against defendant A.T. Massey Coal Company [DRIH], your verdict must be for plaintiff 

(---) if you believe:

First, defendant A.T. Massey Coal Company [DRIH] was a partner of the Doe 

Run Company Partnership, and

Second, while defendant A.T. Massey Coal Company [DRIH] was a partner of 

the Doe Run Company Partnership, the adjacent community of Herculaneum was 

contaminated with unsafe levels of lead which originated from the smelter operations, 

and

Third, at that time, the Doe Run Company Partnership had information from 

which it, in the exercise of ordinary care, knew or should have known that the adjacent 

community of Herculaneum was contaminated with unsafe levels of lead which 

originated from the smelter operations, and

Fourth, the Doe Run Company Partnership allowed plaintiff (---), a resident of 

Herculaneum, to be exposed to unsafe levels of lead which originated from the smelter 

operations before April 5, 1989 [March 26, 1994], and
132

Defendants fault those instructions in two respects. First, they contend the phrase 

“allowed plaintiff ... to be exposed to unsafe levels of lead,” contained in the fourth 

paragraph of the instructions, was impermissibly vague and resulted in a roving 

commission. Second, defendants contend the instructions imposed liability on them for 

the operation of the smelter and for lead released before they were partners. 

Standard of Review

We review de novo the question of whether the jury was properly instructed. 

Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 766 (Mo. banc 2010). For us to 

reverse a jury verdict for instructional error, the party challenging the instruction must 

show: (1) that the instruction as submitted misled, misdirected, or confused the jury; and 

(2) that prejudice resulted from the instruction. Fleshner v. Pepose Vision Inst., P.C., 304 

S.W.3d 81, 90-91 (Mo. banc 2010). “Prejudicial and reversible error occurs when an 

 

Fifth, the Doe Run Company Partnership was thereby negligent, and

Sixth, such negligence directly caused or directly contributed to cause damage to 

plaintiff (---).

The partner verdict director for Fluor differed slightly in the third and fourth paragraphs, in that it ascribed 

liability to Fluor based on Fluor’s knowledge and negligence, rather than the partnership’s knowledge and 

negligence. The instruction, with the challenged phrase in italics, read: 

On the claim of plaintiff (--) for compensatory damages for personal injury 

against defendant Fluor Corporation, your verdict must be for plaintiff (---) if you 

believe:

First, defendant Fluor Corporation was a partner of the Doe Run Company 

Partnership, and

Second, while defendant Fluor Corporation was a partner of the Doe Run 

Company Partnership, the adjacent community of Herculaneum was contaminated with 

unsafe levels of lead which originated from the smelter operations, and

Third, at that time, defendant Fluor Corporation had information from which it, 

in the exercise of ordinary care, knew or should have known that the adjacent community 

of Herculaneum was contaminated with unsafe levels of lead which originated from the 

smelter operations, and

Fourth, defendant Fluor Corporation allowed plaintiff (---), a resident of 

Herculaneum, to be exposed to unsafe levels of lead which originated from the smelter 

operations before May 26, 1990, and

Fifth, defendant Fluor Corporation was thereby negligent, and

Sixth, such negligence directly caused or directly contributed to cause damage to 

plaintiff (---).
133

instruction is proffered to the jury that gives the jury a roving commission.” McNeill v. 

City of Kansas City, 372 S.W.3d 906, 909 (Mo. App. W.D. 2012). 

Roving Commission

Defendants first fault the partner verdict-directing instructions because they did 

not specify the conduct that constituted the breach of duty necessary to support the 

children’s negligence claims. They contend the phrase “allowed plaintiff ... to be 

exposed to unsafe levels of lead” was too open-ended and vague, and left it to the 

“whim” of the jurors to decide for themselves the conduct they could consider in deciding 

whether to hold defendants liable. Defendants insist that the instructions should have 

specified what defendants did or did not do to “allow” the exposure or make them liable 

to the children. 

Defendants complain that the verdict directors ill-defined the negligent act upon 

which the children could base liability, but they do not explain how the submitted 

instructions “misled, misdirected, or confused the jury.” In evaluating alleged 

instructional error, when faced with a claim that the instruction is vague, “the issue is 

whether the phrase as used in the verdict director was misleading in the context of the 

evidence at trial.” Klotz, 311 S.W.3d at 767. Throughout the trial here, the children’s 

evidence centered on how defendants allowed the community’s children to be exposed to 

unsafe levels of lead. Defendants, through their insufficient briefing, have failed to 

demonstrate grounds upon which to predicate reversal. See generally Fleshner, 304 

S.W.3d at 90-91 (listing required showings to obtain reversal on instructional grounds). 

Furthermore, in the context of this case, we find that the sought-after additions –

specific negligent acts – constitute evidentiary detail. A proper verdict-directing 
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instruction submits only the ultimate facts, not evidentiary details. Twin Chimneys 

Homeowners Ass’n v. J.E. Jones Const. Co., 168 S.W.3d 488, 497-98 (Mo. App. E.D. 

2005); see also Rule 70.02(b).61 Simplicity is the key component to instructing a jury in 

Missouri. 2 Mo. Prac., Methods of Prac.: Litigation Guide §15.2 (4th ed. updated 2012). 

The guiding philosophy of MAI is that the jury should be given simple, concise 

instructions that ask them to decide the ultimate factual issues in the case. Mo. Civil 

Trial Practice §12.1 (MoBar 3rd ed. 2002); 2 Mo. Prac. §15.2; see also Dennis E. Egan, 

Jury Instructing in Missouri, 35 Journal of Missouri Bar 440, 441(1979); Missouri 

Approved Jury Instructions, 1963 Report to Missouri Supreme Court, XL (7th ed. 2012); 

Edgerton v. Morrison, 280 S.W.3d 62, 66-67 (Mo. banc 2009)(noting basic premise of 

MAI is to submit only ultimate issues and avoid evidentiary detail). It is expected that 

lawyers will supply in their closing arguments all of the details of the evidence and how 

those details fit into the legal framework given to the jury by the court. Mo. Civil Trial 

Practice §12.1; 2 Mo. Prac. §15.2. 

No precise, universally applicable definition exists that explicitly differentiates 

evidentiary facts from ultimate facts. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 

S.W.2d 654, 658 (Mo. App. E.D. 1999). Courts determine on a case-by-case basis which 

facts are ultimate facts, to be included in the instruction, and which facts are evidentiary 

detail, to be excluded from the instruction. Ostrander v. O’Banion, 152 S.W.3d 333, 

336-37 (Mo. App. W.D. 2004). The decision ultimately depends on the specific theory 

relied on by the party offering the instruction. Id. at 336. 

 61 Rule 70.02(b) mandates that when an Missouri Approved Instruction is modified, as was the case here, 

then “such modifications or such instructions shall be simple, brief, impartial, free from argument, and shall 

not submit to the jury or require findings of detailed evidentiary facts.”
135

Although the purpose of MAI is to hypothesize the ultimate issue without

evidentiary detail, the submission must not be so barren of fact that it allows the jury 

“unbridled power to speculate and find liability based on a vague, abstract ‘roving 

commission’ that lacks sufficient clarity to assure that the verdict is based on proper 

evidentiary considerations established on the record, but rather invites the jury to 

construct a theory of liability on its own.” Egan, supra, at 440. The term “roving 

commission” is a catchall term, used to describe any number of different types of faulty 

instructions that “allow the jury – due to various inclusions or omissions – to rove onto 

forbidden ground ... to reach its verdict.” Id. at 443. For instance, a jury instruction may 

be considered a roving commission “when it is too general or where it submits a question 

to the jury in a broad, abstract way without any limitation to the facts and law developed 

in the case.” See generally Coon v. Dryden, 46 S.W.3d 81, 93 (Mo. App. W.D. 2001). 

And an instruction is a roving commission if it fails to advise the jury what acts or 

omissions of the party, if any, found by it from the evidence would constitute liability. 

McNeill, 372 S.W.3d at 910. “To avoid a roving commission, the court must instruct the 

jurors regarding the specific conduct that renders the defendant liable.” Id. On the other 

hand, when a plaintiff’s theory of the case is supported by the evidence and the 

instruction submits ultimate facts that define the plaintiff’s theory of negligence, the 

instruction is not a roving commission. Smith v. Kovac, 927 S.W.2d 493, 498 (Mo. App. 

E.D. 1996). 

A contention similar to defendants’ was made in Stone v. Duffy Distrib., 785 

S.W.2d 671 (Mo. App. S.D. 1990). There, the plaintiff claimed that the submitted 

contributory-negligence instruction, positing that he “failed to follow the instructions of 
136

his doctors,” gave the jury a roving commission because it failed to submit his exact act 

or omission. The court rejected the claim, noting that detailed evidence existed 

concerning the instructions that the doctors gave plaintiff. Much evidence also existed 

concerning the plaintiff’s actions in following, or failing to follow those instructions. 

The court reasoned that to hypothesize the details of the evidence on those issues in the 

instruction would be precisely what Rule 70.02(e) condemns. In the end, the court found 

that the instruction hypothesized the ultimate facts average jurors would reasonably 

believe they had to find from the detailed evidence.62 Stone, 785 S.W.2d at 678.

Ostrander v. O’Banion, 152 S.W.3d 333 (Mo.App. W.D. 2004) is likewise 

helpful. There, a patient brought a medical-malpractice action against her doctor for 

negligence in removing her gallbladder. The doctor challenged the verdict-directing 

instruction, which directed a verdict in favor of the patient on a finding that the doctor 

“placed a surgical clip in a position that extended partially across the common hepatic 

bile duct of plaintiff.”63 The doctor argued that the instruction should have required the 

jury to find that he either failed to identify or that he misidentified the biliary anatomy 

before he placed the surgical clip partially across the common bile duct. He contended 

that failure to submit the issue in this manner enabled the jury to find for the patient by

 62 The instruction in Stone read, with the challenged phrase in italics:

In your verdict you must assess a percentage of fault to plaintiff Bobby Joe Stone, 

whether or not defendants were partly at fault, if you believe:

First, plaintiff Bobby Joe Stone failed to follow the instructions of his doctors, 

and

Second, plaintiff Bobby Joe Stone was thereby negligent, and

Third, such negligence of plaintiff Bobby Joe Stone caused or directly 

contributed to cause any damage plaintiff may have sustained. 63 In total, the verdict director read, with the complained-of phrase in italics:

Your verdict must be for the plaintiff if you believe:

First, defendant placed a surgical clip in a position that extended partially 

across the common hepatic bile duct of plaintiff; and

Second, defendant was thereby negligent; and

Third, as a direct result of such negligence, plaintiff sustained damage.
137

virtue of the adverse result because the instruction did not submit the act or omission 

complained of, as required. Ostrander, 152 S.W.3d at 337. 

The appellate court rejected the doctor’s claim. In so doing, the court noted that 

under the patient’s theory of negligence, supported by her experts, it was always a breach 

of duty to place the clip on the common bile duct. Although there may be different 

reasons how or why the clip was placed, the reasons for the improper placement 

ultimately made no difference. It was the ultimate act of placing the clip across the duct 

that was the breach. The specific theory of negligence presented by the plaintiff’s two 

experts, and the ultimate issue to be decided by the jury was whether the defendant 

placed the hemoclip across plaintiff’s common bile duct. Thus, the verdict director 

accurately presented the issue to be decided by the jury. Id. at 339. 

Defendants bring to our attention the recent decision of our Western District, 

Minze v. Missouri Dep’t of Public Safety, 2014 WL 1364940 (April 8, 2014), an 

employment-discrimination case in which the court found that the verdict director 

submitting plaintiff’s retaliation claim constituted an impermissible roving commission. 

The instruction hypothesized that the defendant “took adverse action” against the 

plaintiff, and that a causal relationship existed between the complaint and the “adverse 

action.”64 Similar to defendants’ argument here, the State in Minze argued that the 

instruction constituted a roving commission because the instruction failed to set forth 

specific acts constituting retaliation, thereby allowing the jury to consider actionable and 

 64 In full, the instruction read, with the complained-of phrases in italics:

Your verdict must be for the Plaintiff and against Defendant MMDPS if you believe:

First, Plaintiff complained of employment discrimination based on sex; and

Second, Defendant MMDPS took adverse action against her; and 

Third, a causal relationship existed between the complaint and the adverse action; and

Fourth, as a direct result of such conduct, Plaintiff sustained damage.
138

non-actionable behavior in the aggregate. The court, relying on Scanwell Freight 

Express STL, Inc. v. Chan, 162 S.W.3d 477, 482 (Mo. banc 2005), agreed. In Scanwell, 

our Supreme Court found the verdict director fatally defective because by using the word 

“including,” a word of enlargement and not limitation, the instruction made actionable 

the aggregate of all of the defendant’s conduct – both that which was actionable and that 

which was not. Scanwell, 162 S.W.3d at 482. The Minze court found that the proffered 

instruction suffered from the same infirmity because by using only the words “adverse 

action,” the instruction impermissibly enlarged the scope of conduct for the jury’s 

consideration beyond that which was actionable. The court further found that the term 

“adverse action” was not given proper “flesh and meaning” during the course of the trial. 

We find that Minze and Scanwell actually support our decision. 

The ultimate issue to be decided in this case was whether defendants allowed the 

children to be exposed to unsafe levels of lead. In the context of this case, the 

defendant’s various acts and omissions were evidentiary detail. Be it defendants’ failure 

to warn, to buy out the homes, to contain emissions, to honestly communicate to the 

town, or any other of defendants’ acts or omissions, the end result is the same – the act or 

omission allowed the children to be exposed to unsafe levels of lead. The term “allowed” 

was sufficiently given “flesh and meaning” during the trial, and unlike the Minze and 

Scanwell instructions, does not include both actionable and non-actionable conduct. The 

submission was entirely responsive to the negligence pleaded in the children’s petition 

and established at trial. We hold that the verdict directors did not constitute a roving 

commission. 
139

“Historic” Liabilities

Defendants next fault the verdict-directing instructions as improperly permitting 

the jury to hold defendants liable for the release of lead and the operation of the smelter 

before defendants were partners, rather than properly limiting liability to conduct of the 

partnership and operation of the smelter during the period of time each particular 

defendant was a partner. Specifically, defendants point to the fourth paragraph of the 

verdict director, which asked the jury to consider whether the defendant allowed the 

children to be exposed to unsafe levels of lead “which originated from the smelter 

operations:” (1) “before April 5, 1989” for Massey; (2) “before March 26, 1994” for 

DRIH; and (3) “before May 26, 1990” for Fluor. (Emphases added). Essentially, 

defendants view the instructions as “open ended.” In defendants’ view, by simply stating 

“before” and then giving the ending date of each defendant’s partnership interest, the 

instruction permitted the jury to hold defendants responsible for any conduct occurring 

and any lead emitted at any time before the stated date, including the time before 

defendants were partners. Defendants assert the instructions should have included both 

the beginning and the ending dates of each defendant’s respective partnership interest, 

and expressly referred to conduct between those dates. 

Defendants’ argument – that they are being held responsible for conduct predating 

their time in the partnership – strikes a familiar refrain that we have already addressed. 

Although the instructions could have been more artfully drafted to include the beginning 

date of each defendant’s partnership interest, we cannot conclude that the instructions 

permitted the jury to hold defendants responsible for the release of lead and operation of 

the smelter before they were partners. Why would we conclude that the jurors imposed 
140

pre-partnership liability when defendants failed to point to any argument where 

children’s counsel requested such? Rather, children’s counsel focused his argument on 

the defendants, as partners, and their knowledge of the contamination, their appreciation

of the danger of lead, and their deceit and failure to reasonably act given these 

circumstances. We also note that defense counsel in his closing argument repeatedly 

reminded the jury, without objection, to focus on the partnership periods. Most critically, 

as we discussed earlier, the verdict directors, in the second and third paragraphs, 

cautioned the jury to assess each defendant’s conduct and liability while a partner. Given 

all these circumstances, we hold that the verdict directors, when viewed in their entirety, 

effectively limited liability to the time of each defendant’s respective partnership interest. 

To conclude, the trial court did not err in submitting the complained-of partner 

verdict directors. We deny defendants’ points, and turn to their allegations of error with 

respect to punitive damages. 

Punitive Damages

Defendants challenge the submissibility of the children’s claim for punitive 

damages. They also assign error in the verdict directors submitting the issue of punitive 

damages to the jury. 

The children sought separate punitive-damage awards against each defendant. 

They sought punitive damages against Fluor based on Fluor’s own knowledge and 

conduct. They sought punitive damages against Massey and DRIH based on the 

knowledge and conduct of the partnership. 
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Submissibility

Defendants allege the trial court erred in denying their motions for directed 

verdict and for judgment notwithstanding the verdict with respect to the children’s claim 

for punitive damages. Defendants contend the children failed to demonstrate conduct 

that would justify punitive damages. They argue that the alleged negligent conduct here 

– “allowing” children to be exposed to lead – is simply not tantamount to the intentional 

wrongdoing necessary to support punitive damages. 

As to Fluor, defendants argue that Fluor was only a partner for one day, and 

maintain that the children did not show any conduct during that day that could support 

punitive damages. They argue that there was no evidence that any lead emitted on that 

day injured any child, and thus insist that the children’s claim for punitive damages 

against Fluor was based on the historical activities of the smelter, with little regard to the 

actions of Fluor or the period of Fluor’s partnership. Defendants argue that the only 

possible act on that one day that could constitute the culpable mental state necessary to 

justify punitive damages would be Fluor’s failure to buy homes or relocate the smelter –

and defendants argue that the children provided no authority, other than the testimony of 

Dr. Fisher, that Fluor had any legal duty to buy out the smelter’s neighbors. They 

contend that “allowing” the neighbors to remain in their homes hardly qualifies as the 

kind of “outrageous, officious” conduct sufficient to warrant punitive damages. 

As to Massey and DRIH, defendants insist that because the children chose to 

submit separate punitive-damage claims against Massey and DRIH, rather than a joint 

submission, then the children were required to prove separate culpability of each 

defendant. They contend that the children presented no evidence of actionable 
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misconduct by Massey and DRIH. Indeed, defendants frequently note that Massey and 

DRIH were “inactive,” “silent,” “passive” partners, which were not involved in the 

smelter’s day-to-day operations. Defendants further argue that even if Missouri law 

permits punitive damages to be assessed against Massey and DRIH based on the 

partnership’s conduct, the children still failed to make a submissible case because they 

failed to show conduct during the respective partnership periods that could support 

punitive damages. Defendants argue that the partnership could not have reasonably been 

held to have known that its conduct during the five months of Massey’s partnership was 

creating a high risk of injury because the blood levels during that time were “far below” 

the level the CDC considered elevated. Defendants also argue that Doe Run was in 

compliance with the implementation plan in place, in an attempt to reduce lead 

emissions, which belies the notion that the partnership was engaged in intentional 

wrongdoing during Massey’s partnership period. 

Defendants likewise argue that Doe Run’s conduct during DRIH’s partnership 

time does not justify punitive damages. They contend that the steps Doe Run took to 

address elevated blood levels, and its continued efforts to reduce lead emissions after the 

CDC changed the blood lead standard in 1991, all preclude a finding that the partnership 

exhibited the requisite mental state for punitive damages. They contend that Doe Run’s 

many actions refute any notion of complete indifference or conscious disregard on the 

part of Doe Run. They tout their outreach to the community, and their efforts to raise 

awareness about the blood lead levels, the dangers of lead, and the ways to reduce lead 

risks to children. They also refer to their efforts to address emissions and counteract the 

effects of prior lead emissions with such programs as the soil-remediation program, the 
143

free vacuums, and the home-repurchase program. And they cite their compliance with 

the state implementation plans and regulatory requirements, their ongoing cooperation 

with regulatory authorities in addressing environmental matters, and their persistent 

efforts to meet the national ambient air quality standards. Citing to Alcorn, they argue 

that punitive damages are simply not available against a party that complied with an 

ongoing regulatory program. Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226 (Mo. banc 

2001)(overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29 

(Mo. banc 2013)).

“There must be some element of outrage to justify punitive damages.” Burnett v. 

Griffith, 769 S.W.2d 780, 789 (Mo. banc 1989)(citing to Restatement (Second) of Torts, 

section 908(1) Comment b (1979)). Further, punitive damages require a willful, wanton 

or malicious culpable mental state on the part of the defendant. Burnett, 769 S.W.2d at 

789. A plaintiff can establish this requisite culpable mental state by showing either that 

the defendant committed an intentional wanton, willful, outrageous act or that defendant 

acted with reckless disregard for the plaintiff’s rights and interests. Peel v. Credit 

Acceptance Corp., 408 S.W.3d 191, 209 (Mo. App. W.D. 2013); Burnett, 769 S.W.2d at 

787. Plaintiffs must prove their claim for punitive damages by clear and convincing 

proof. Rodriquez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. banc 1996). Thus, 

to make a submissible case for punitive damages, a reasonable juror must be able to 

conclude, from the evidence and the inferences drawn therefrom, that the plaintiff 

established with convincing clarity that the defendant’s conduct was outrageous because 

of evil motive or reckless indifference. Drury v. Missouri Youth Soccer Ass’n, Inc., 259 
144

S.W.3d 558, 573 (Mo. App. E.D. 2008); see also Gilliland v. Missouri Athletic Club, 273 

S.W.3d 516, 520 (Mo. banc 2009). 

“Ordinarily punitive damages are not recoverable in actions for negligence, 

because negligence, a mere omission of the duty to exercise care, is the antithesis of 

willful or intentional conduct.” Hoover’s Dairy, Inc. v. Mid-America Dairymen, 

Inc./Special Products, Inc., 700 S.W.2d 426, 435 (Mo. banc 1985)(internal quotation 

omitted). “But an act or omission, though properly characterized as negligent, may 

manifest such reckless indifference to the rights of others that the law will imply that an 

injury resulting from it was intentionally inflicted.” Id. “Or there may be conscious 

negligence tantamount to intentional wrongdoing, as where the person doing the act or 

failing to act must be conscious of his conduct, and, though having no specific intent to 

injure, must be conscious, from his knowledge of surrounding circumstances and existing 

conditions, that his conduct will naturally or probably result in injury.” Id. Punitive 

damages can be awarded in a negligence action when the defendant knew or had reason 

to know that a high degree of probability existed that the action would result in injury. 

Hoover’s Dairy, 700 S.W.2d at 436. 

Whether sufficient evidence exists to support an award of punitive damages is a 

question of law, which we review de novo. Gilliland, 273 S.W.3d at 520. In reviewing 

the submissibility of punitive damages, we view the evidence and all reasonable 

inferences drawn therefrom in the light most favorable to submissibility. Id. We 

disregard all evidence and inferences that are adverse thereto. Drury, 259 S.W.3d at 573. 

Only evidence that tends to support the submission should be considered. Id. 
145

We first address defendants’ claim that because the children submitted separate 

punitive-damage claims as to each defendant rather than a joint award against all 

partners, then the children were required to prove the separate culpability of each 

defendant. 

Defendants provided no authority mandating proof of separate culpability. They 

rely principally on a federal case applying Missouri law, Blue v. Rose, 786 F.2d 349 (8th

Cir. 1986). There, a federal court held that an award of punitive damages in one sum 

against partners was proper where the tortious act by one partner was committed within 

the scope of partnership authority and business. The court, however, did not hold that 

this was mandated. To the contrary, the court expressly recognized that “in some cases 

the evidence might support separate findings of punitive damages in varying amount 

against partners jointly sued and that the jury should be instructed accordingly.” Blue, 

786 F.2d at 353. 

Indeed, defendants’ proposition runs counter to well-established principles of 

agency and partnership law. As previously noted, in Missouri, all partners are jointly and 

severally liable for everything chargeable to the partnership. Section 353.150. And 

Missouri law holds a partnership liable for the acts of one of the partners in the ordinary 

course of the partnership’s business or with the authority of his copartners. Section 

358.130. This section expressly provides that the partnership is liable for “any penalty” 

that may be incurred. Section 358.130. Under Missouri law, punitive damages are 

intended as a penalty as their purposes is to punish and deter. Rodriquez, 936 S.W.2d at

110; Alcor, 50 S.W.3d at 248 (punitive damages are imposed as punishment for and 

deterrence of bad conduct). And Missouri recognizes that partners are vicariously liable 
146

for punitive damages based on acts of their copartners done in the course of partnership 

business. Rogers v. Hickerson, 716 S.W.2d 439, 447 (Mo. App. S.D. 1986). Several 

other states have also so recognized. See, e.g., Shetka v. Kueppers, Kueppers, VonFeldt 

& Salmen, 454 N.W.2d 916, 918-19 (Minn. 1990); Meleski v. Pinero Int’l Rest., 424 

A.2d 784, 790-92 (Md. App. 1981); Spencer v. Steinbrecher, 164 S.E.2d 710, 716 (W.Va. 

1968). This liability attaches even if partners did not participate in, ratify, or have 

knowledge of the activity giving rise to the award of punitive damages. Rogers, 716 

S.W.2d at 447. 

Given that the partnership is liable for penalties incurred by a partner for acts 

done in the course of the partnership’s business, including punitive damages, and that 

partners are liable for everything chargeable to the partnership, proof of individual 

culpability is not required. Furthermore, separate instructions were especially warranted 

here, where Massey and DRIH were partners at different times. 

Defendants’ contention that the children did not prove conduct sufficient to 

support an award of punitive damages is unavailing. Defendants argue that their 

community outreach and their various programs to address emissions and counteract the 

effects of prior lead emissions all belie the notion that the partnership was operating with 

complete indifference and conscious disregard of the neighborhood children. Defendants 

did not raise this argument at the trial court, and therefore it is not preserved for appeal. 

Rule 72.01(a); Johnson v. Allstate Indem. Co., 278 S.W.3d 228, 233 (Mo. App. E.D. 

2009)(holding argument against submissibility not preserved for appeal because it was 

not raised as a specific ground in defendant’s motion for directed verdict). Moreover, in 

citing evidence in their favor, defendants ignore our standard of review. We further note 
147

that defendants’ position now on appeal is directly contrary to that taken in their motions 

for directed verdict and for JNOV. In those motions, defendants expressly argued that 

there was no evidence that they were involved with any direct communications with 

Herculaneum residents at all, for any reason. 

Defendants at trial, and now on appeal, protest that they certainly could not be 

subject to punitive damages when they were doing everything that was required by the 

EPA and the DNR. They contend that the partnership’s ongoing cooperation with 

federal, state, and local authorities in addressing environmental matters precludes a 

finding that Doe Run exhibited the requisite mental state for punitive damages. Relying 

on Alcorn, they argue that punitive damages are simply unavailable against a party that 

complied with an ongoing regulatory program intended to address the very issues on 

which plaintiffs base their claims. In defendants’ view, their purported conformity with 

the regulatory process negates any conclusion of intentional wrongdoing.

Alcorn is readily distinguishable on its facts. There, an Amtrak train collided with 

a car at a railroad crossing that had neither flashing lights nor a crossing gate. Union 

Pacific Railroad, the railroad which owned the tracks and crossing, had notice of serious 

sight obstructions and several near misses at the crossing. Nearly a year prior to the 

accident, the State identified the crossing as needing improvement. And three months 

before the Alcorn collision, the State authorized the railroad to perform a preliminary 

engineering plan and cost estimate for the crossing. Rather than spending its own money, 

the railroad waited for public funds to upgrade the crossing. The car passenger sued both 

Amtrack and Union Pacific. The jury awarded punitive damages against Union Pacific. 
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The Missouri Supreme Court reversed. In reaching its decision, the Court restated 

several factors that weigh against submission of punitive damages as circumstances in 

which (1) prior similar occurrences known to the defendant have been infrequent; (2) the 

injurious event was unlikely to have occurred absent negligence on the part of someone 

other than the defendant; and (3) the defendant did not knowingly violate a statute, 

regulation, or clear industry standard designed to prevent the type of injury that occurred. 

Alcorn, 50 S.W.3d at 248 (quoting Lopez, 26 S.W.3d at 160). The case turned on the last 

of these factors – compliance with the law and industry standards.65 The Court noted that 

no clear evidence existed that the railroad knowingly violated an applicable regulation or 

statute by failing to upgrade the crossing. The Court also noted that the railroad was in 

the process of upgrading the crossing at the behest of the state, and there was no showing 

that the railroad failed to cooperate with the state in its efforts or that the railroad in any 

way violated an applicable regulation or resisted the regulatory process. In the end, the 

Court reasoned that conformity with the regulatory process negated the conclusion that 

the railroad’s conduct was tantamount to intentional wrongdoing. Alcorn, 50 S.W.3d at 

249. 

Here, in contrast to Alcorn, the children presented a multitude of actions and 

inactions by the defendants to support their claim for punitive damages. Moreover, even 

though defendants maintain they were in compliance with regulatory programs, the 

children presented remarkable evidence to the contrary. According to the children’s 

 65 As to the first factor regarding prior similar occurrences, the Court noted that while serious sight 

problems existed and previous incidents occurred at the crossing, passive warning devices were in place 

that the railroad believed satisfied its duty to the public. As to the second factor regarding others’ 

negligence, the Court noted that the jury found that 25 percent of the fault for Alcorn’s injuries was 

attributed to Amtrak’s negligence. Thus the Court did not consider whether this second factor weighed 

against submission of a punitive-damage claim. Alcorn, 50 S.W.3d at 248.

 
149

evidence, the defendants hid information from regulators, resisted regulatory changes, 

and never complied with industry standards for ambient air quality standards. The other 

two factors also weigh in favor of submissibility. There is a long history in this country 

of lead poisoning occurring from lead smelters; and the lead poisoning in this case would 

not have happened absent the defendants’ negligence. We find Alcorn inapposite. 

We hold that the children’s claim for punitive damages was submissible against 

all defendants. The children presented sufficient clear and convincing evidence that 

Fluor, as well as the partnership during both Massey’s time and DRIH’s time as a partner, 

acted with either evil motive or a reckless disregard for the children’s interests, knowing 

that a high degree of probability existed that their actions would result in injury. The jury 

could find Fluor’s actions outrageous, even on the one day it was a partner. Fluor, 

knowing that the lead emitted from the smelter was contaminating the surrounding 

neighborhood and poisoning the children, failed to sound an alarm. The partnership 

likewise knew the dangers of lead. They knew that the children were breathing in levels 

of lead in the air that violated federal standards, and they knew that the children were 

living amidst toxic dust and soil. They knew that the blood lead levels in the surrounding 

neighborhood were extremely high. Yet, knowing this, the partnership continued to 

release the toxins and hid the dangers and extent of contamination from regulators and 

the public. More than that, they misled the public. They delayed installation of 

emission-control measures. They did only token remediation programs. They refused to 

buy out homes. They deflected blame and responsibility to the parents. And their reason 

for doing so was readily apparent – the economic costs of being sued and of complying 

with government mandates. In short, the defendants placed their ability to turn a profit 
150

above the well-being of children. We are neither offended nor surprised by the jury’s 

conclusion. The jury could rightly find such actions outrageous. 

We turn now to the instructions submitting the children’s punitive-damage claims. 

Instructions

The court, at the children’s request, submitted a punitive-damage verdict director 

to the jury for each defendant.66 The instructions were substantially similar, save for the 

 66 Each child used the same three verdict directors, the only difference being the insertion of the particular 

child’s name. The verdict director submitting the claim for punitive damages against Fluor reads:

If you find in favor of plaintiff (---) and against defendant Fluor Corporation 

under Instruction Number ___ [domination compensatory verdict director for the 

particular child] and ___ [partner compensatory verdict director for the particular child], 

and if you believe that:

First, defendant Fluor Corporation allowed plaintiff (---), a resident of 

Herculaneum, to be exposed to unsafe levels of lead which originated from the smelter 

operations before March 26, 1994, and

Second, before March 26, 1994, defendant Fluor Corporation knew or had 

information from which it, in the exercise of ordinary care, should have known that such 

conduct created a high degree of probability of injury, and

Third, defendant Fluor Corporation thereby showed complete indifference to or 

conscious disregard for the safety of others,

then in Verdict _, you may find that defendant Fluor Corporation is liable for punitive 

damages.

You may consider risk of harm to others in determining whether defendant Fluor 

Corporation’s conduct showed complete indifference to or conscious disregard for the 

safety of others.

If you find that defendant Fluor Corporation is liable for punitive damages in 

this stage of the trial, you will be given further instructions for assessing the amount of 

punitive damages in the second stage of the trial.

The verdict directors submitting the claims for punitive damages against Massey and DRIH are the same, 

save for the company name and applicable date. They read: 

If you find in favor of plaintiff (---) and against defendant A.T. Massey [DRIH] 

under Instruction Number ___ [partner compensatory verdict director for the particular 

child], and if you believe that:

First, the Doe Run Company Partnership allowed plaintiff (---), a resident of 

Herculaneum, to be exposed to unsafe levels of lead which originated from the smelter 

operations before April 5, 1989 [March 26, 1994], and

Second, before April 5, 1989, the Doe Run Company Partnership knew or had 

information from which it, in the exercise of ordinary care, should have known that such 

conduct created a high degree of probability of injury, and

Third, the Doe Run Company Partnership thereby showed complete indifference 

to or conscious disregard for the safety of others,

then in Verdict _, you may find that defendant A.T. Massey [DRIH] is liable for punitive 

damages.
151

defendant’s name and respective partnership date. The instruction for Fluor was based on 

the knowledge and conduct of Fluor; the instructions for Massey and DRIH were based 

on the knowledge and conduct of the partnership. 

Defendants fault all three verdict directors, and thus claim the trial court erred in 

submitting those instructions. They first criticize all three instructions for the use of the 

term “allowed,” and for directing the jury that they could find the defendants liable for 

punitive damages if they found the defendant “allowed” the plaintiff to be exposed to 

unsafe levels of lead. Defendants repeat the same argument as they did with the 

compensatory-damage verdict directors, contending they were roving commissions. 

They maintain that the instructions should have posited specific conduct or acts on which 

punitive damages could be based. We have already addressed and rejected this argument. 

The defendants also fault the instructions as permitting the jury to impose punitive 

damages on defendants for activities and lead emissions at the smelter that predated 

defendants’ participation in the partnership. Defendants failed to develop an argument in 

support of their complaint, advancing only a conclusory argument, which simply 

references their previous argument with regard to the compensatory-damage verdict 

directors. Moreover, defendants speculate that the punitive-damage verdict directors are 

not limited to the activities and emissions for which they are responsible. But this 

argument ignores the explicit limitation that existed in the compensatory-damage verdict 

directors that limited defendants’ liability to negligence during the respective partnership 

 

You may consider risk of harm to others in determining whether the Doe Run 

Company Partnership’s conduct showed complete indifference to or conscious disregard 

for the safety of others.

If you find that defendant A.T. Massey [DRIH] is liable for punitive damages in 

this stage of the trial, you will be given further instructions for assessing the amount of 

punitive damages in the second stage of the trial.
152

periods. The punitive-damage verdict directors referenced their corresponding 

compensatory-damage verdict director, and the jury received those instructions at the 

same time. Further, the jury was told to only consider the defendants’ liability for 

punitive damages after concluding that they bore responsibility for actual damages. And, 

of course, we view the questions of error and prejudice by considering the instructions as 

a whole, not by parsing the separate phrasing of each instruction. Defendants point to 

nothing in the record, by way or argument or a question from the jury, that would cause 

us to conclude that the jury considered conduct for which the defendants bore no 

responsibility in assessing punitive damages. We deny this contention as well.

Defendants next fault the instructions for Massey and DRIH for permitting the 

imposition of separate punitive damages on Massey and DRIH based on conduct of the 

partnership instead of requiring the jury to find that the individual defendants themselves 

each engaged in conduct supporting the imposition of punitive damages. We have 

already addressed defendants’ contention that because the children pursued separate 

punitive-damage awards against each defendant, they were required to prove the separate 

culpability of each defendant. For those same reasons, we deny defendants’ allegation of 

instructional error.

Although we find the issue of punitive damages submissible as to all defendants, 

and although we deny defendants’ various contentions regarding the form of the punitivedamage instructions, we nevertheless reverse and remand the punitive damages assessed 

against Fluor. As defendants correctly note, the children submitted their punitive-damage 

claim against Fluor in the conjunctive, requiring the jury to find Fluor liable on both the 

partner claim and the domination claim in order to assess punitive damages against Fluor. 
153

The children expressly acknowledged at the instruction conference that they were 

assuming such a burden. That decision is not without consequences. We have struck 

down the children’s domination claim as an incorrect application of law. Hence, the 

punitive-damage award against Fluor must fail.

We presume the jury followed the instruction and found Fluor liable for punitive 

damages because Fluor was liable both as a partner and as a dominating principal. In 

assessing the amount of punitive damages, the damage-assessment instruction directed 

the jury to consider Fluor’s conduct, and to assess an amount that would serve to deter 

Fluor and others from like conduct.67 Again, we presume the jury followed the 

instruction and considered Fluor’s conduct as a partner and its separate conduct as a 

dominating principal in arriving at its assessment of 15 million dollars for each child. 

Given the conjunctive submission and a singular award dependent on Fluor’s conduct, we 

cannot determine what portion of the award the jury assessed to punish Fluor’s conduct 

as a partner, and what portion of the award the jury assessed to punish Fluor’s conduct as 

a dominating principal. We thus must reverse the punitive damages assessed against 

Fluor. 

 67 The jury was instructed:

In addition to any compensatory damages you assessed in Verdict 

[compensatory verdict], you may assess against defendant Fluor Corporation an 

additional amount as punitive damages in such sum as you believe will serve to punish 

defendant Fluor Corporation for the conduct for which you found that defendant Fluor 

Corporation is liable for punitive damages and will serve to deter defendant Fluor and 

others from like conduct.

You may consider risk of harm to others in determining whether defendant Fluor 

Corporation’s conduct showed complete indifference to or conscious disregard for the 

safety of others. However, in determining the amount of any punitive damage award, 

you must not include damages for harm to others who are not parties to this case.

If punitive damages are assessed against more than one defendant, the amounts 

assessed against such defendants may be the same or they may be different. 
154

We have found children’s partner theory and the issue of punitive damages 

submissible against Fluor. We therefore remand the case for further proceedings to 

assess punitive damages against Fluor. 

We find no infirmity as to the compensatory-damage award. The parties 

submitted the compensatory-damage instruction and verdict form to the jury without any 

request for apportionment among the defendants. Indeed, as partners, defendants are 

jointly and severally liable for torts committed by a partner acting within the scope and 

ordinary course of the partnership’s business. Further, the instruction asked the jury to 

assess a single sum dependent on the children’s injuries, not dependent on an individual 

defendant’s conduct.68 In assessing punitive damages, the jury considered both forms of 

Fluor’s tortious conduct, and awarded a sum of money to punish that conduct. In 

assessing compensatory damages, the jury did not consider Fluor’s conduct and the two 

theories of liability, but instead considered the actual damages the children did and would 

suffer, and assessed a sum of money to fairly compensate the children for that damage. 

The children were damaged from their exposure to unsafe levels of lead. As we have 

held, substantial evidence supported the partner theory as to all defendants. And we 

know, by virtue of the punitive-damage verdict director, that the jury found Fluor liable 

on the partner theory. Finally, defense counsel acknowledged in oral argument before 

this Court that one theory alone could uphold the compensatory-damage award against 

 68 The court instructed the jury:

If you find in favor of plaintiff [insert child’s name] and against one or more defendants, 

then you must award plaintiff [---] such sum as you believe will fairly and justly 

compensate plaintiff [---] for any damages you believe he sustained and is reasonably 

certain to sustain in the future that his exposure to unsafe levels of lead directly caused or 

directly contributed to cause.

The verdict form, in part, read:

We, the undersigned jurors, assess the compensatory damages of plaintiff [insert child’s 

name] at $ ________.
155

Fluor. In light of these circumstances, we affirm the compensatory-damage award as to 

Fluor. 

Post-Trial Motions for Reduction of Awards

Following the jury’s verdicts, the defendants unsuccessfully attempted to have the 

trial court reduce the compensatory damages, as well as the punitive damages. 

Compensatory Damages: Remittitur

Defendants first argue that the trial court erred in denying their motion for 

remittitur of compensatory damages. Defendants claim the verdicts are excessive 

because they include an “enhancement” for lost earnings, as testified to by Hansen, and a 

component for “loss of IQ,” as testified to by Rodgers. Defendants argue that Hansen’s 

testimony lacked foundation and that Rodgers testimony was “speculative and 

unfounded.”

Generally, the determination of damages is primarily for the jury. Emery v. WalMart Stores, Inc., 976 S.W.2d 439, 448 (Mo. banc 1998); Delacroix v. Doncasters, Inc., 

407 S.W.3d 13, 36 (Mo. App. E.D. 2013). However, if the trial court finds that the jury’s 

verdict is excessive because the amount exceeds fair and reasonable compensation for the 

plaintiff’s injuries and damages, the trial court may enter a remittitur order, reducing the 

damage award. Section 537.068. 

The trial court enjoys broad discretion in deciding whether remittitur should be 

ordered. Emery, 976 S.W.2d at 448. We review for abuse of that discretion, and will 

interfere only when the verdict is so grossly excessive that it shocks the conscience of the 

court and convinces us that both the trial judge and the jury have abused their discretion. 

Emery, 976 S.W.2d at 448. We should exercise our power to interfere with the judgment 
156

of the jury and the trial court with hesitation and only when the verdict is manifestly 

unjust. Fust v. Francois, 913 S.W.2d 38, 49 (Mo. App. E.D. 1995). On review, we 

consider the evidence in the light most favorable to the trial court’s order. Badahman v. 

Catering St. Louis, 395 S.W.3d 29, 39 (Mo. banc 2013). Here, this means we consider 

the evidence in the light most favorable to the verdict. Id. And we disregard any 

contrary evidence. Delacroix, 407 S.W.3d at 36. This court does not weigh the 

evidence; therefore our inquiry is limited to determining whether the jury’s verdict is 

supported by substantial evidence. Id. 

No precise formula exists to determine whether a verdict is excessive. Evans v. 

FirstFleet, Inc., 345 S.W.3d 297, 303 (Mo. App. S.D. 2011). Each case must be 

examined on its own facts. Id. Typically, courts examine a number of factors, including: 

(1) loss of income, both present and future; (2) medical expenses; (3) plaintiff’s age; (4) 

the nature and extent of plaintiff’s injuries; (5) economic considerations; (6) awards given 

and approved in comparable cases; (7) the superior opportunity for the jury and the trial 

court to evaluate plaintiff’s injuries and other damages. Emery, 976 S.W.2d at 408.

Defendants do not address – or even set out – these factors. And they again

ignore our standard of review, whereby we view the evidence in the light most favorable 

to the verdict. Defendants have thus failed to properly brief this issue. Defendants’ 

argument is predicated on the rejection of evidence to which they raised no objection 

during trial. Essentially, defendants seek a reweighing of the evidence. Indeed, 

defendants spend the vast majority of their argument under this point restating their 

assertions that the complained-of testimony was speculative, full of conjecture, and 

lacking foundation. Defendants acknowledge that the amount awarded was within the 
157

range of the evidence presented by the children. Considering the factors set out above, 

and viewing the evidence favorable to the verdict, defendants have failed to show that the 

verdicts are manifestly unjust, such that the trial court abused its discretion in denying 

remittitur. The children presented ample evidence of the effects of their injuries on their 

education and employability, demonstrating a loss of both current and future income. We 

deny this point.

Punitive Damages

Defendants pursued three avenues in their attempt to reduce or eliminate the 

punitive-damage awards: a motion for reduction of the awards as unconstitutionally 

excessive, a motion for remittitur, and a motion to amend the judgment.

We need not fully address the trial court’s denial of defendants’ motion to amend 

the judgment. Defendants by that motion sought to reduce the punitive-damage awards 

against DRIH, as being duplicative of the awards against Fluor. That request is now 

moot. Defendants on appeal also allege that the trial court erred in denying their motion 

because the punitive-damage awards against all defendants were duplicative of each 

other. Defendants contend that all three awards were based on the same conduct during 

overlapping time periods of smelter operations. Defendants did not seek relief on this 

ground in their motion to amend. The issue is therefore not properly preserved for 

appeal. We further note that defendants presented us with cursory and conclusory 

arguments, simply pointing this Court to other portions of their brief. It is not the 

function of this Court to go in search of a party’s argument. Having failed to develop 

their argument, the defendants have abandoned the issue. We deny the point, and turn to 

the constitutional and statutory grounds for reducing the awards. 
158

Constitutionality of Punitive-Damage Awards

Defendants contend the trial court should have reduced the punitive-damage 

awards as unconstitutional because the awards were so excessive that they violated their 

due-process rights. Defendants claim the awards are unconstitutional because they are 

grossly excessive, they bear no reasonable relationship to defendants’ conduct, they are 

substantially disproportionate to the compensatory-damage awards, they vastly exceed 

the amounts requested by the children, they are well beyond any punishment of which 

they may have had notice, and because they are unprecedented in Missouri law. 

Punitive damages may properly be imposed on a tortfeasor to further a state’s 

legitimate interests in punishing unlawful conduct and deterring its repetition. BMW of 

N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996); Letz, 975 S.W.2d at 177. Punishing a 

tortfeasor through an award of punitive damages is an exercise of state power that must 

comply with the Due Process Clause of the Fourteenth Amendment. Honda Motor Co., 

Ltd. v. Oberg, 512 U.S. 415, 434 (1994); Letz, 975 S.W.2d at 177.69 And the Due 

Process Clause prohibits the imposition of “grossly excessive” or “arbitrary” punishments 

on a tortfeasor. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003); 

Peel v. Credit Acceptance Corp., 408 S.W.3d 191, 211 (Mo. App. W.D. 2013). A grossly 

excessive punitive damage award violates a tortfeasor’s substantive right of due process 

 69 The constitutional concerns are both procedural and substantive. Letz, 975 S.W.2d at 177. Procedurally, 

due process requires that adequate standards and controls be in place to prevent a punitive-damage award 

from becoming an arbitrary deprivation of property. Barnett v. LaSociete Anonyme Turbomeca France, 

963 S.W.2d 639, 662 (Mo. App. W.D. 1997)(overruled on other grounds by Badahman v. Catering St. 

Louis, 395 S.W.3d 29 (Mo. banc 2013)). Proper jury instruction and review of a jury award by the trial 

court and an appellate court generally satisfies due process. Letz, 975 S.W.2d at 177. Substantively, a 

punitive-damage award cannot be so “grossly excessive” in relation to the state’s interest in punishment 

and deterrence that it enters into the “zone of arbitrariness” that violates the Due Process Clause of the 

Fourteenth Amendment. Id; Barnett, 963 S.W.2d at 662. 
159

in that it furthers no legitimate purpose and constitutes an arbitrary deprivation of 

property. State Farm, 538 U.S. at 417; Peel, 408 S.W.3d at 211. 

“Imposing punitive damages requires that a proper balance be struck.” The 

Fireworks Restoration Co., LLC v. Hosto, 371 S.W.3d 83, 91 (Mo. App. E.D. 2012). 

“The award must be enough to ensure that the tortfeasor is adequately punished and 

deterred from future similar conduct; yet, the award must not be grossly excessive.” Id.

(citing BMW, 517 U.S. at 568). “No precise constitutional line or simple mathematical 

formula exists with regard to determining whether a punitive damage award is grossly 

excessive.” Peel, 408 S.W.3d at 211. Each case must be assessed on its own facts. Scott 

v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140, 144 (Mo. banc 2005)(Teitelman 

concurring); see also Estate of Overbey v. Chad Franklin Nat’l Auto Sales North, LLC, 

361 S.W.3d 364, 373 (Mo. banc 2012). To satisfy due process, the amount of punitive 

damages should reflect the extent of the defendant’s offense and be related to the 

resulting actual or potential harm. Letz, 975 S.W.2d at 177 (citing BMW, 517 U.S. at 

575). The United States Supreme Court has set out three guideposts, commonly referred 

to as the “Gore guideposts,” when reviewing whether a punitive-damage award comports 

with due process: (1) the reprehensibility of the defendant’s misconduct; (2) the disparity 

between the harm or potential harm suffered by the plaintiff and the punitive-damage 

award; and (3) the difference between the punitive damages awarded by the jury and the 

civil penalties authorized or imposed in comparable cases. BMW, 517 U.S. at 574-75; 

Estate of Overbey 361 S.W.3d at 372. We review the trial court’s determination of the 

constitutionality of the punitive-damage award de novo. Hosto. 371 S.W.3d at 91; State 

Farm, 538 U.S. at 418. 
160

Defendants here do not separately address the awards, but instead address the 

awards against all defendants in the aggregate. In that respect, they have inadequately 

briefed this issue. Defendants have not provided us grounds to separately impugn the 

awards against Massey and DRIH. To the extent defendants do address the awards 

against Massey and DRIH, their argument is simply a rehash of their prior argument, 

claiming that punitive damages were not warranted against these defendants because they 

were merely “passive” partners in the partnership, and during their respective partnership 

periods, the smelter purportedly operated in compliance with the state implementation 

plan approved by the State of Missouri and the EPA. 

These shortcomings aside, given the constitutional implications we will 

nevertheless review the surviving damage awards against Massey and DRIH. The jury 

assessed three million dollars in punitive damages per child against Massey, and two 

million dollars per child against DRIH. Upon consideration of the Supreme Court’s 

guideposts, we conclude that the awards pass constitutional muster. 

The degree of reprehensibility of defendant’s conduct is the most important 

indicium of the reasonableness of a punitive-damages award. BMW, 517 U.S. at 575; 

State Farm, 538 U.S. at 419; Estate of Overbey, 361 S.W.3d at 373. Punitive damages 

should reflect the enormity of the offense. BMW, 517 U.S. at 575. Some wrongs are 

more blameworthy than others. Id. For instance, “trickery and deceit” are more 

reprehensible than negligence. Id. at 576 (citing TXO Prod. Corp. v. Alliance Res. Corp., 

509 U.S. 443 (1993)). An incident that is recidivistic can be punished more harshly than 

an isolated incident. BMW, 517 U.S. at 577. Repeated instances of wrongful conduct can 

demonstrate that “strong medicine” is required to deter further repetition. Id. at 576-77. 
161

In assessing reprehensibility, we must consider whether: the harm was physical rather 

than economic; the tortious conduct evinced an indifference to or a reckless disregard of 

the health or safety of others; the conduct involved repeated actions or was an isolated 

incident; and the harm resulted from intentional malice, trickery, or deceit, or mere 

accident. State Farm, 538 U.S. at 419; Hosto, 371 S.W.3d at 92. 

Again, the punitive-damage awards against Massey and DRIH are based on the 

partnership’s knowledge and conduct. At this point, little else needs to be said in that 

regard. We find the partnership’s conduct highly reprehensible. The harm suffered by 

the children was both physical and economic. Defendants’ conduct was deceitful, 

involved repeated actions, and evinced an indifference and reckless disregard of the 

health and safety of the children. Defendants’ claim on appeal that any reprehensibility 

factor is “minimal” ignores the evidence that the jury obviously accepted. 

We turn, then, to the second Gore guidepost, and assess the relationship between 

the punitive-damages award and the harm that has either occurred or is likely to result 

from the defendants’ conduct. The United States Supreme Court “has been reluctant to 

identify concrete constitutional limits on the ratio between harm, or potential harm, to the 

plaintiff and the punitive damages award.” State Farm, 538 U.S. at 424; Peel, 408 

S.W.3d at 410. No rigid benchmarks or mathematical formulas exist. State Farm, 538 

U.S. at 424-25. Rather, the precise award in any case “must be based on the peculiar 

facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” State 

Farm, 538 U.S. at 425; Estate of Overbey, 361 S.W.3d at 373. A reasonable relationship 

must exist between the award and the harm likely to result from the defendant’s conduct 

as well as the harm that actually occurred. TXO, 509 U.S. at 460; Letz, 975 S.W.2d at 
162

179. High-ratio punitive-damage awards are sometimes necessary in order to have a 

sufficient deterrent effect. Scott, 176 S.W.3d at 144 (Teitelman concurring)(citing Kemp 

v. Am. Tel. & Telg. Company, 393 F.3d 1354 (11th Cir. 2004)(upholding 2,172:1 punitive 

to compensatory ratio) and Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672 (7th Cir. 

2003)(upholding 37:1 ratio)). A compelling and strong state interest in deterring 

environmental pollution may also warrant a large punitive-damage award, even in the 

absence of highly reprehensible conduct. Johansen v. Combustion Eng’g, Inc., 170 F.3d 

1320, 1338-39 (11th Cir. 1999)(upholding punitive-damage award one hundred times 

greater than compensatory award against mine operator where acidic water escaped and 

damaged nearby property). 

Here, the jury awarded compensatory damages averaging $2,426,699 per child. 

The jury assessed three million dollars in punitive damages per child against Massey, and 

two million dollars per child against DRIH. Thus, the verdicts represent a ratio of 

punitive sanction to average compensatory award of 1.24-to-1 for Massey and less than 

1-to-1 for DRIH, both relatively low ratios. Given defendants’ egregious acts and the 

harm, both actual and potential, suffered by the children, we find the punitive-damages 

awards to be reasonably related to the compensatory-damage awards. 

Lastly, we consider the third Gore guidepost and compare the punitive-damage 

awards and the civil penalties that could be imposed for comparable misconduct. The 

parties cite provisions of Missouri’s air-conservation and hazardous-waste laws. Those 

provisions authorize fines up to $10,000 per day for air-pollution violations and up to 

$50,000 per day for hazardous-waste violations. Section 260.425.3(6) and 643.151.3. If 

defendants were penalized under these statutes, for a violation on each day of their 
163

partnership period, Massey would face a fine of 1.56 to 7.8 million. DRIH would face a 

fine of 18 to over 90 million dollars. 

Defendants argue no Missouri precedent has allowed punitive-damage awards for 

what defendants maintain was “passive” behavior. Defendants are correct in one respect. 

This case is unprecedented. No other case in Missouri involves the knowing poisoning of 

children over an extended period of time. 

Considering all relevant factors, including the state’s interest in deterring and 

punishing conduct such as that exhibited by defendants, we hold that the punitive-damage 

awards in this case is neither “grossly excessive” nor “arbitrary” and does not violate the 

Due Process Clause. We deny this point. 

Remittitur of Punitive-Damage Awards

Lastly, defendants contend the trial court erred and abused its discretion in 

denying their motion for remittitur of punitive damages.70

“Generally, the decision to award punitive damages is peculiarly committed to the 

jury and the trial court’s discretion, and the appellate court will only interfere in extreme 

cases.” Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 810 (Mo. App. 

W.D. 2008)(internal quotation omitted). Section 510.263 allows the trial court to order 

remittitur of punitive damages “based on the trial judge’s assessment of the totality of the 

 70 Remittitur and a constitutionally reduced verdict, though potentially achieving the same result, are in 

theory different. A remittitur is a substitution of the court’s judgment for that of the jury regarding the 

appropriate award of damages. Johansen, 170 F.3d at 1331. The court orders a remittitur when it finds that 

the jury’s award is excessive and unreasonable on the facts. Id.; Section 537.068. In other words, the court 

may order remittitur relief when the jury awards a verdict that is simply “too bounteous” under the 

evidence. Moore v. Missouri-Nebraska Exp., Inc., 892 S.W.2d 696, 714 (Mo. App. W.D. 1994). A 

constitutional reduction, on the other hand, is a determination that the law does not permit the award. 

Johansen, 170 F.3d at 1331. Unlike a remitittur, which is discretionary with the court, a court has a 

mandatory duty to correct an unconstitutionally excessive verdict so that it conforms to the requirements of 

the due-process clause. Id. 
164

surrounding circumstances.” As with a compensatory-damage award, the trial court has 

broad discretion to remit a punitive-damage award if, “after reviewing the evidence in 

support of the jury’s verdict, the court finds that the jury’s verdict is excessive because 

the amount of the verdict exceeds fair and reasonable compensation for plaintiff’s injuries 

and damages.” Section 537.068; Hill, 371 S.W.3d at 80. This Court will not disturb the 

trial court’s decision to deny remittitur of punitive damages unless the trial court abuses 

its discretion. Hill, 371 S.W.3d at 80. The trial court will be said to have abused its 

discretion “when the punitive damage award is so disproportionate to the factors relevant 

to the size of the award that the award reveals improper motives or a clear absence of the 

honest exercise of judgment.” Call v. Heard, 925 S.W.2d 840, 849 (Mo. banc 1996). As 

previously noted, the amount of punitive damages must somehow be related to the 

wrongful act and the resulting actual or potential injury, although there is no fixed 

mathematical relation between the amount of actual damages and the amount of punitive 

damages awarded. Id. “Only when the amount is manifestly unjust will appellate courts 

interfere with or reduce the size of a verdict.” Smith, 275 S.W.3d at 810 (internal 

quotation omitted). 

No bright-line test exists to determine if a punitive-damage award is excessive. 

Barnett v. LaSociete Anonyme Turbomeca France, 963 S.W.2d 639, 662 (Mo. App. W.D. 

1997)(overruled on other grounds by Badahman, 395 S.W.3d at 40). We evaluate 

punitive-damage awards on a case-by-case basis. Smith, 275 S.W.3d at 810. Missouri 

courts have identified a nonexclusive list of factors to consider in determining whether 

the trial court abused its discretion in denying remittitur of a punitive-damage award: (1) 

the degree of malice or outrageousness of the defendants’ conduct, which has been 
165

deemed a critical factor; (2) aggravating and mitigating circumstances; (3) the 

defendant’s financial status, as an indication of the amount of damages necessary to 

punish the defendant; (4) the character of both parties; (5) the injury suffered; (6) the 

defendant’s standing or intelligence; (7) the age of the injured party; and (8) the 

relationship between the two parties. Call, 925 S.W.2d at 849; Smith, 275 S.W.3d at 811. 

On review, we view the evidence in the light most favorable to the trial court’s decision. 

Badahman, 395 S.W.3d at 39. 

Given our disposition, we need only address the trial court’s denial of remittitur as 

to the punitive-damage awards against Massey and DRIH. Defendants in their motion 

argued for remittitur because Massey and DRIH did not operate the smelter, but rather 

were silent, passive partners. Defendants also claimed remittitur was warranted because 

the awards were unprecedented and more than requested. They complained that the 

award against Massey was based on improperly-admitted evidence of the financial 

condition of Massey’s parent company.71 Lastly, defendants boldly asked for remittitur 

because, simply, the children were not really hurt. They brazenly stated:

The nature of Plaintiffs’ alleged injuries also supports substantial 

remittitur of these punitive damage awards. Even accepting as true 

Plaintiffs’ characterization of their own injuries, the objective evidence 

established that Plaintiffs are healthy, well-functioning members of 

society who have not suffered any debilitating injuries as a result of any 

Defendants’ conduct.

We find no abuse of discretion in the trial court’s denial of remittitur. The 

defendants knew of lead’s danger, they knew they contaminated Herculaneum with lead 

dust. They hid the truth from the regulators. They misled the town about the children’s 

peril. They caused grave and permanent injuries to the children. They did all this 

 71 Defendants raised no point on appeal charging error on the part of the trial court in admitting this 

evidence. And the defendants lodged no objection to the evidence at trial. 

167

APPENDIX A

Exposure History and Lead Level Testing Results for Children

Gabe Farmer: Gabe was born in January of 1986. He lived in Herculaneum from 

the time he was born until 1987. He returned in January of 1989, when he was three, and 

continued to live in Herculaneum through 1994.72 Gabe was tested in March 1994, when 

he was 8 years old. His level was 9, almost five times the national average. This level 

would have been higher when Gabe was younger. The most likely levels of lead in 

Gabe’s blood, from birth to age seven, were: 17.3, 19.7, 18.6, 31, 31.2, 28.2, and 17.73 

Jeremy Halbrook: Jeremy was born in 1984, and moved to Herculaneum in 

October of 1986, when he was about 2 years old. He continued to live in Herculaneum 

through March of 1994. Jeremy was tested in October of 1995, when he was one month 

shy of his eleventh birthday. His level then was 12, six times the national average. Like 

Gabe, this level would have been higher when Jeremy was younger. The likely levels of 

lead in Jeremy’s blood, starting at age two through age six, were: 20.9, 25.2, 22.1, 19.6, 

and 17.7. 

Heather Glaze: Heather was born in 1987, and moved to Herculaneum in 

September of 1988. She lived in Herculaneum, right across street from plant, for two 

years, until August of 1990 when she moved away. She returned to Herculaneum when 

she was about seven years old. Heather was tested when she was between eight and nine 

 72 Many children, like Gabe, continued to live in Herculaneum past March of 1994. Dr. Rodgers specified 

that date, however, because that was the end of the partnership period of ownership. 73 Dr. Jill Ryer-Powder, a toxicologist, testified as to the most likely blood lead concentration for four 

children who did not have blood lead levels drawn before the age of seven: Gabe Farmer, Heather Glaze, 

Jeremy Halbrook, and Patrick Blanks. Dr. Ryer-Powder arrived at her values using a computer model 

called the Integrated Exposure Uptake Biokinetic Model, IEUBK for short, established by the United States 

Environmental Protection Agency. The user of this computer model inputs various environmental 

parameters, such as the concentration of lead in soil, air, water, and food, as well as the maternal blood lead 

level and the bioavailability of lead in dirt and dust. The model then calculates a likely blood lead level for 

children at specific age levels up through age 6. 
168

years old. Her level then was 13.2, which Dr. Rodgers described as “very high” for a 

child of Heather’s age. When one year old, Heather likely had a level of 16.5 or 27; and 

when two years old, she likely had a level of 18.3 or 30.2.74

Preston Alexander: Preston was born in June of 1989. His mother lived in 

Herculaneum while pregnant with him. Preston lived directly across the street from the 

smelter, from the time of his birth through 1994. Preston was tested two times in 1992, 

when he was between three and four years old. His levels then, for tests done two 

months apart, were 16.9 and 16.5. Preston was tested again when he was between six and 

seven years old. His level then was “very high,” at 15.1.

Bryan Bolden: Bryan was born in June of 1989. His mother lived in 

Herculaneum while pregnant with him. Bryan lived in Herculaneum until September of 

1990, when he was about 15 months old. He returned to Herculaneum three years later, 

in July of 1993, when he was four, and remained in Herculaneum through 1994. Bryan 

was tested twice in the fall of 1995, when he was between six and seven years old. His 

levels were 22.6 and 20, described by Dr. Rodgers as “extremely high” and ten times the 

national average. The levels would have been higher when Bryan was younger. 

Nathan Davis: Nathan was born in November 1987. He moved to Herculaneum 

in May of 1989 and lived there through 1994. Nathan was first tested in 1992, when he 

was between four and five years old. His levels were 19, 20.5, 16, and 20. These “very 

high” levels would have been even higher during his toddler years, when lead levels 

would have peaked. 

 74 The differences in results are attributed to Dr. Ryer-Powder running two models with two different soil 

sample levels. When using the higher level, the blood lead levels came out as 27 and 30.2. 
169

Tiffany Bolden: Tiffany, the younger sister of Bryan, was born in May of 1990. 

Her mother lived in Herculaneum while pregnant with her. Tiffany left Herculaneum 

when four months old and returned in July of 1993, when she was three. Tiffany was 

first tested in October and November of 1995, when she about five-and-one-half years 

old. Her levels were 22.8 and 23 – “extremely high”. 

Ashley Shanks: Ashley was born in 1986, and moved to Herculaneum in August 

of 1991, when she a little less than five years old. She lived in Herculaneum through 

1994. Ashley was tested in June of 1992, when she was six years old. Her level was 

10.2, more than twice the national average.

Patrick Blanks: Patrick was born in July of 1990, and lived in Herculaneum 

through 1994. Patrick was not tested during the first seven years of life. Patrick’s likely 

levels of lead, starting from birth through age seven, were: 19.5, 22.5, 21.7, 21, 18.3, 

16.3, and 14.6. 

Lauren Shanks: Lauren, the younger sister of Ashley, was born in 1990. She too 

moved to Herculaneum in August of 1991, when she was about 9 months old. Like her 

sister, she lived in Herculaneum through 1994. Lauren was tested in June of 1992, when 

she was twenty months old. Her level was 10.8, also more than twice the national 

average.

Isaiah Yates: Isaiah was born in September of 1992. He lived right across the 

street from plant from the time he was born through 1994. Isaiah was tested in March of 

1994, when he was only eighteen months old. His level was 13, described by Dr. 

Rodgers as “very high.” 
170

Matthew Heilig: Matthew was born in August of 1994, after the partnership 

period, as were the four remaining children that follow. Matthew was tested in October 

of 1995, when he was only 14 months old. His level was 24.

Austin Manning: Austin was born in March of 1997. He moved to Herculaneum 

when he was three months old, and continued living there until 2002. Austin was tested 

in September of 2001, when he was between four and five years old. His level was 16. 

Jonathan Miller: Jonathan was born in August of 1995. He moved to 

Herculaneum in January of 1999, when he was a little over four years old. Jonathan was 

tested ten months later, in November of 1999. His level was 14. 

Jesse Miller: Jesse, the younger brother of Jonathan, was born in March of 1998. 

Like his brother, he moved to Herculaneum in January of 1999, when he was ten months 

old. He was tested in November of 1999. His level was 16.1.

Sydney Fisher: Sydney was born in July of 2000. Her mother lived in 

Herculaneum while pregnant with her. Sydney was tested in August of 2001, when she 

was thirteen months old. Her level was 18.
171

APPENDIX B

The Children’s Diagnoses

As noted, each child was diagnosed with ADHD. There are three types of 

ADHD: (1) inattentive type only, where patients have problems with inattention only; 

(2) hyperactivity-impulsivity type only, which is rare; and (3) combined type, where 

patients have all the above - inattention, hyperactivity, and impulsivity. The combinedtype of ADHD is the most common type of ADHD, and is the most pervasive and the 

most impairing. Dr. Rodgers opined that each child also suffered IQ loss due to their 

exposure to lead. In all, the children were diagnosed as follows:

Gabe Farmer: moderate ADHD, predominantly inattentive type; 

adjustment disorder with some depressive mood 

symptoms; asthma 

Jeremy Halbrook: severe ADHD, combined type; developmental 

motor coordination disorder; learning disorder; 

asthma

Heather Glaze: moderate ADHD, combined type; anxiety; 

depression 

Preston Alexander: ADHD, predominantly inattentive type; cognitive 

disorder; asthma 

Bryan Bolden: ADHD, combined type; asthma

Nathan Davis: ADHD, combined type; asthma 

Tiffany Bolden: ADHD, combined type; asthma

Patrick Blanks: ADHD, combined type; significant academic and 

cognitive deficiencies; memory performance 

weakness; neuropsychiatric disorder; anxiety 

disorder; depression; antisocial personality; 

insomnia; IQ loss 

Ashley Shanks: ADHD; anxiety
172

Lauren Shanks: moderate ADHD, combined type; adjustment 

disorder with mixed anxiety and depressive mood 

symptoms

Isaiah Yates: ADHD, predominantly inattentive type; adjustment 

disorder with depressive and mood symptoms; 

asthma

Matthew Heilig: ADHD, combined type; significant academic and 

cognitive deficiencies; neuropsychiatric disorders, 

including mood disorder and depression; insomnia; 

psychosomatic illness manifesting as chronic 

headaches; sensorineural hearing loss; asthma; IQ 

loss

Austin Manning: ADHD (diagnosis made from records after Austin’s 

death). Tragically, Austin died in a house fire after 

moving away from Herculaneum. 

Jonathan Miller: mild ADHD, predominantly inattentive type 

Jesse Miller: severe ADHD, combined type; cognitive disorder; 

developmental motor coordination disorder; written 

expressive disorder

Sydney Fisher: ADHD, combined type 
173

APPENDIX C

Historical Background of Doe Run Partnership

The Doe Run partnership was formed in November of 1986. Prior to that time, in 

April of 1981, Fluor had acquired St. Joe Minerals Corporation.75 St. Joe, now a whollyowned subsidiary of Fluor, continued to operate the Herculaneum smelter as it had done 

for decades. Five years later, on November 1, 1986, St. Joe and Homestake Lead 

Company of Missouri formed a general partnership called The Doe Run Company. Over 

the life of the partnership, the two original partners transferred or sold all or part of their 

interest in the partnership. The transfers on the St. Joe side of the partnership are all to 

various subsidiaries – all within the Fluor corporate family. The first such transfer 

occurred nearly two years into the partnership, in October of 1988, when St. Joe 

transferred much of its partnership interest to its subsidiary Massey.76 The partnership at 

this point thus consisted of partners Homestake, St. Joe, and Massey. 

Five months later, Massey assigned all of its partnership interest to its whollyowned subsidiary DRIH. The partnership at this point consisted of partners Homestake, 

St. Joe, and DRIH. On May 25, 1990, Fluor purchased Homestake’s entire interest in 

the partnership. At this point, the partnership consisted of partners St. Joe, DRIH, and 

Fluor.77 

 75 Specifically, Fluor’s wholly-owned subsidiary, Fluor Acquisition Corporation, merged with St. Joe 

Minerals after acquiring all of the shares of stock of St. Joe Minerals. Fluor Acquisition Corporation was 

the surviving entity and was renamed St. Joe Minerals Corporation. 76 Section 6.02 of the partnership agreement permitted a partner to transfer its interest in the partnership to 

any of its wholly-owned affiliates. An “affiliate” defined by partnership agreement as “any company 

which shall for the time being be directly or indirectly controlled by, or under common control with a 

partner.” 

77 When Fluor acquired Homestake’s interest, Fluor, Homestake, St. Joe, DRIH, and Leadco agreed to 

continue the partnership. 
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Later that same day, for tax purposes, Fluor transferred its newly-acquired 

partnership interest to its wholly-owned subsidiary, Leadco Investments, Inc. (Leadco). 

At this point, the partnership consisted of partners St. Joe, DRIH, and Leadco, all 

subsidiaries of Fluor.

Nearly four years later, in January of 1994, Leadco merged with St. Joe, with St. 

Joe as the surviving entity, leaving a partnership consisting of partners St. Joe and DRIH. 

Two months later, St. Joe bought out DRIH, leaving St. Joe, a wholly-owned subsidiary 

of Fluor, as the exclusive and sole owner of the smelter. Shortly thereafter, in April of 

1994, Fluor sold all its stock in St. Joe to DR Acquisition Corporation.

Thus, during the eight-year life of the partnership, Fluor was a partner for part of 

one day (May 25, 1990); Massey was a partner for five months (October 31, 1988, to 

April 4, 1989); and DRIH was a partner for just under five years (April 4, 1989, to March 

25, 1994). Although Fluor was a partner for only a short time, its subsidiaries in one 

form or another, be it wholly-owned or a tiered sub-subsidiary, were partners throughout 

the entire partnership period, from formation in 1986 to termination in 1994.
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APPENDIX D

Summary of Fluor’s Influence over the Partnership

A partnership committee ran the partnership until 1990. The committee consisted 

of six members, with each partner having the right to appoint up to three representatives 

to serve on the committee. Initially, all three St. Joe representatives on the partnership 

committee were St. Joe employees. That soon changed. By February of 1988, St. Joe 

had appointed three high-ranking Fluor officials to be its representatives: Leslie 

McCraw, then president of Fluor; Robert Guyett, the CFO; and Vincent Kontny, a highranking officer and later president of Fluor. The insertion of Fluor personnel into 

partnership committee roles, while not improper, signaled a change in Fluor’s 

involvement with the partnership. Although not a partner until 1990, Fluor was 

extensively involved in partnership affairs prior to that time, to the exclusion of named 

partners St. Joe, Massey, and DRIH. 

To begin, partner DRIH was essentially an entity and partner in name only. As 

noted in Appendix C, DRIH became a partner in April of 1989. DRIH was a newlycreated entity, having just been created two weeks prior to becoming a partner in Doe 

Run. Massey created DRIH as a “wholly-owned subsidiary tax company,” for the 

purpose of receiving the partnership interest. DRIH had no assets prior to acquiring the 

partnership interest. DRIH had no employees, no offices, no phones, and did not conduct 

any business other than acquiring the partnership interest from Massey. Defense counsel 

at trial admitted that DRIH had no employees and was not a smelter operator, and stated 

that the plaintiffs could have left DRIH out and “just sued Fluor.” Of all the partnership 

committee meeting minutes produced at trial, not a single one refers to partner DRIH, the 
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partner with the largest partnership interest during the time period of April 1989 to 

January 1994. 

DRIH is not the only entity and partner name absent from partnership minutes. 

From the fall of 1987 forward, minutes of the partnership committee meetings never 

mention St. Joe, even though it was a named partner through the end of the partnership in 

1994. Instead, the minutes consistently and repeatedly refer to Fluor as being the partner. 

Others, including a Homestake representative and chairman of the partnership committee,

also repeatedly referred to Fluor as part of the partnership. A business analysis, 

conducted in 1989 at the behest of the president of Doe Run, described the Doe Run 

Company as “a joint venture of Fluor Corporation and the Homestake Mining Company.” 

Correspondence about partnership affairs flowed in and out of Fluor. Approval for 

partnership projects came from Fluor. In fact, Fluor’s approval was always necessary – a 

partnership project could not go forward without Fluor’s approval. Fluor received the

partnership cash distributions. Fluor was the entity that informed Homestake about the 

transfer of partnership interests. Partners St. Joe, Massey, and DRIH are rarely, if ever, 

mentioned or involved in partnership matters. 

Two letters written in 1989 by Les McCraw, president of Fluor, are especially 

telling of Fluor’s involvement in the partnership. Writing the president of Homestake in 

January of 1989, shortly after St. Joe transferred part of its partnership interest to Massey, 

Mr. McCraw stated: 

We would like to confirm our prior discussion, in which we indicated that 

this transfer will not cause any changes in our prior or current operational, 

or partnership relationships, with respect to Doe Run or Homestake. 

Specifically, we have no plans to make any changes, as a result of this 

transfer, in our representation on the Doe Run Partnership or 

Finance/Audit Committees. 
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I know we agree that the Doe Run Partnership has been a huge success, 

and we certainly would not cause any changes which might adversely 

affect what has been a winning formula.

Mr. McCraw wrote this letter on Fluor corporate letterhead, and signed it “Les McCraw, 

President.” Mr. McCraw never indicated or referred to himself in any other capacity or 

position other than president of Fluor. Indeed, he held no other position. Professor 

Henry Ordower, in examining the letter, noted that Mr. McCraw’s use of the pronoun 

“we” throughout the letter meant that he was referring to the corporation on whose 

letterhead it was written – Fluor.78 

Mr. McCraw again wrote the president of Homestake in October of 1989, this 

time informing him that Paul Allen would be replacing Vince Kontny as a representative 

of St. Joe on the partnership committee. In so doing, Mr. McCraw announced a more 

“proactive role” on the part of Fluor, stating: 

“Subsequent events have convinced us that we need to take a more 

proactive role in the management of Doe Run.” 

Mr. McCraw again wrote this letter on Fluor corporate letterhead, and signed the letter as 

president of Fluor. In commenting on this letter, Professor Ordower again explained that 

in using the term “we,” Mr. McCraw meant Fluor. 

The partnership committee stopped meeting and ceased to exist in 1990, when 

Fluor acquired Homestake’s partnership interests and then transferred that partnership 

interest to Leadco. At that time, partners St. Joe, Leadco, and DRIH executed an 

amended partnership agreement and agreed to make Leadco the managing partner of the 

partnership. Leadco purportedly had full direction and control of the conduct, business, 

and affairs of the partnership, subject to certain express exceptions. Or at least this is 

 78 Again, Professor Ordower is a Professor of Law at St. Louis University School of Law who testified on 

behalf of the children.
178

what the newly-amended partnership agreement provided. However, Leadco was much 

like DRIH – an entity in name only. Created for tax purposes—to reduce Fluor’s 

Missouri state income taxes—Leadco had no offices, no phones, and no employees. The 

children presented evidence that despite this designation of Leadco as managing partner, 

and despite the fact that Leadco, St. Joe, and DRIH were the named partners, Fluor 

continued to be extensively, if not exclusively, involved in running the partnership. 

“100% Fluor” – that is how Fluor considered and represented the Doe Run 

partnership once it purchased Homestake’s partnership interest. Fluor issued a news 

release at that time, headlined: “FLUOR BECOMES 100 PERCENT OWNER OF DOE 

RUN.” The press release noted that the acquisition gave Fluor “full and controlling 

ownership of its lead investment.” Jeffrey Zelms, president of the Doe Run Company, 

explained that the partnership committee became unnecessary and stopped meeting when 

Fluor acquired Homestake’s interest because Fluor “became 100% owners of Doe Run ... 

there was a partnership, but Fluor subsidiaries were the partners.” Fluor represented 

itself as owning Doe Run on more than one occasion. Notably, in Doe Run’s 1990 and 

1991 reports to the Herculaneum community detailing the environmental performance of 

the smelter, Doe Run expressly stated: “In 1990, Fluor became the sole owner of The 

Doe Run Company.” 

Fluor not only considered itself the owner of Doe Run, it treated Doe Run as 

another subsidiary. In an October 1990 memo to in-house counsel and other Doe Run 

employees, Robert Guyett, Fluor’s senior vice-president and chief financial officer, urged 

corporate treatment of Doe Run, stating: 

As an overall comment the partnership concept is not appropriate. Even 

though technically Doe Run is a partnership, our ownership is Corporate. 
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Therefore, all our oversight, etc., should follow the more normal corporate 

form like our other operations (Massey and Fluor Daniel). ...

He also referred to Fluor as being “Doe Run’s corporate owner,” and in concluding, 

stated: “Doe Run should be looked at as a Corporation.” 

The children presented evidence showing that Fluor controlled and kept a tight 

rein on Doe Run’s budget. Jeffrey Zelms, president of Doe Run, was authorized to 

independently approve expenditures to a certain dollar amount without further oversight 

or authorization. After Fluor became a “100% owner,” it lowered that dollar amount to 

just $200,000. Moreover, that partnership approval had to come from a representative of 

“Fluor Corporation” – not from a representative of St. Joe, Leadco, or DRIH, the named 

partners, but from a representative of Fluor. Professor Ordower noted that once Fluor 

purchased Homestake’s interest, DRIH, Leadco, or St. Joe were never asked for and 

never authorized any expenditure. Rather, it was always Fluor that approved Doe Run’s 

expenditures. 

Lastly, others—such as employees of Doe Run—also considered Fluor as the 

entity in charge. In June of 1990, an employee of Doe Run sought clarification from 

Fluor on Fluor’s goals for Doe Run. Professor Ordower noted that in all the documents 

he reviewed, he never saw Doe Run discuss St. Joe’s goals for the partnership; he never 

saw any letter from Doe Run seeking advice from Leadco; he never saw any letter where 

Doe Run sought advice from, or discussed DRIH and its goals for the partnership. 

Professor Ordower further noted that of all the letters he saw from Doe Run, all were 

directed to Fluor. This correspondence included letters from Paul Allen who routinely 

and consistently reported to Fluor’s president about environmental matters at the 

Herculaneum smelter. Professor Ordower explained that this was the type of information 
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Mr. Allen would tell the president of Fluor, because Fluor was responsible for the 

operation of the smelter.