A. et al v. Doe Run Resources Corporation et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
A.O.A, et al., 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. 4:11 CV 44 CDP
)
IRA L. RENNERT, et al., 	)
)
Defendants. 	)
MEMORANDUM AND ORDER
On September 9, 2025, I granted in part and denied in part defendants’
motions for summary judgment on the remaining claims in this action. (ECF 1524,
Memo. & Ord.) Plaintiffs have now filed a motion for reconsideration, asking that
I reconsider that part of my ruling that granted defendants summary judgment on
the claims of five Discovery Cohort (DC) plaintiffs who do not have measured
blood lead levels (BLLs). (See id. at pp. 62-63, 80.) I will deny the motion to
reconsider. I will also deny plaintiffs’ request for oral argument on the motion.
Legal Standard
Plaintiffs brought their motion under Rules 54(b) and 60(b)(6) of the Federal
Rules of Civil Procedure, averring that Rule 54(b) permits me to revisit my
interlocutory Order and arguing in substance that they are entitled to relief under
Rule 60(b)(6) to correct errors in my Order and to avoid injustice to the parties.
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 1 of 11 PageID #:
<pageID>

- 2 -
(ECF 1547, Pltfs’ Memo. in Supp. at p. 5). Addressing defendants’ responsive
argument that plaintiffs cannot meet the Rule 60(b) standard for reconsideration,
plaintiffs in their reply brief appear to disavow their earlier reliance on Rule 60(b).
(See ECF 1574, Pltfs’ Reply Memo. at p. 2 (“Because Plaintiffs’ motion . . . must .
. . be considered pursuant to Rule 54(b), Defendants’ arguments pertaining to Rule
60(b) are wholly misplaced.”).)
Rule 54(b) permits the Court to “exercise its general discretionary authority
to review and revise its interlocutory rulings prior to the entry of final judgment.”
Auto Servs. Co., Inc. v. KPMG, LLP, 537 F.3d 853, 856, 857 (8th Cir. 2008).
While the Eighth Circuit construes motions for reconsideration of non-final orders
as motions under Rule 60(b), Williams v. York, 891 F.3d 701, 706 (8th Cir. 2018),1
it has also agreed that Rule 54(b) is the appropriate Rule under which to address a
motion to reconsider such orders. See Julianello v. K-V Pharm. Co., 791 F.3d 915,
923 n.3 (8th Cir. 2015). Notably, the standard for considering a motion to
reconsider under Rule 54(b) is typically held to be less exacting than the standard
for considering a Rule 60(b) motion. Ball-Bey v. Chandler, No. 4:18-CV-1364-
SPM, 2023 WL 7280903, at *2 (E.D. Mo. Oct. 2, 2023).
Relief under Rule 60(b)(6) is available only in “extraordinary
1 See also Kohlbeck v. Wyndham Vacation Resorts, Inc., 7 F.4th 729, 734 n.2 (8th Cir. 2021) (to
the extent motion for reconsideration was directed at a non-final order, court of appeals
construed it as a motion under Rule 60(b)).
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 2 of 11 PageID #:
<pageID>

- 3 -
circumstances.” Buck v. Davis, 580 U.S. 100, 123 (2017); Williams, 891 F.3d at
706. While “extraordinary circumstances” may include, in an appropriate case,
“the risk of injustice to the parties,” Buck, 580 U.S. at 123, motions under Rule
60(b) nevertheless serve a limited function:
to correct manifest errors of law or fact or to present newly discovered
evidence. They are not to be used to introduce new evidence that
could have been adduced during pendency of the motion at issue. A
motion for reconsideration is also not the appropriate place to tender
new legal theories for the first time.
Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010) (internal
quotation marks and citations omitted). Rule 54(b), however, gives the district
court greater discretion to reconsider interlocutory orders, which “as a practical
matter a district court needs in order to modify orders in response to the changing
circumstances of a lawsuit before it.” Discount Tobacco Warehouse, Inc. v. Briggs
Tobacco & Specialty Co., No. 3:09-CV-05078-DGK, 2010 WL 3522476, at *2
(W.D. Mo. Sept. 2, 2010). But a court “also has an interest in judicial economy
and ensuring respect for the finality of its decisions.” 	Id. To account for that
interest while allowing for correction of mistakes, the court in Discount Tobacco
devised a standard for reconsidering non-final orders: the court “may reconsider
an interlocutory order only if the moving party demonstrates (1) that it did not have
a fair opportunity to argue the matter previously, and (2) that granting the motion is
necessary to correct a significant error.” Id.
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 3 of 11 PageID #:
<pageID>

- 4 -
In Dunne v. Resource Converting, LLC, this Court adopted the standard set
out in Discount Tobacco, finding it to be appropriately less exacting than the
standard for reconsidering a final order while accounting for judicial economy and
respect for the finality of judicial decisions. No. 4:16 CV 1351 DDN, 2019 WL
1227456, at *2 (E.D. Mo. Mar. 15, 2019). Going forward from Dunne, the Court
has applied that standard to motions to reconsider non-final orders. See, e.g.,
Moore v. Stange, No. 1:21-CV-114-JSD, 2024 WL 4144098, at *3 (E.D. Mo. Sept.
11, 2024); Jacobson Warehouse Co., Inc. v. Schnuck Markets, Inc., No. 4:17-CV-
00764 JAR, 2020 WL 833606, at *2 (E.D. Mo. Feb. 20, 2020). For the reasons set
out in Discount Tobacco and Dunne, I will apply that standard here. Accordingly,
to prevail on their motion to reconsider, plaintiffs must show that they did not have
a fair opportunity to argue the matter previously and that a significant error
necessitates granting the motion.
Background
In a Memorandum and Order entered July 11, 2025, I granted in part and
denied in part defendants’ motion to exclude the testimony of plaintiffs’ expert Dr.
David L. MacIntosh, whom plaintiffs retained to evaluate and render opinions on
the DC plaintiffs’ BLLs and the extent to which those BLLs were attributable to
emissions from the smelting complex during Doe Run Peru’s operations. (ECF
1506, Memo. & Ord.) As relevant here, I determined that Dr. MacIntosh’s use of a
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 4 of 11 PageID #:
<pageID>

- 5 -
predictive model in estimating the BLLs of the DC plaintiffs at ages 2, 5, and 7
was generally admissible, as well as his conclusions regarding the predicted range
of BLLs for the DC plaintiffs who had measured BLLs on record. I excluded,
however, his predicted ranges of BLLs for the five DC plaintiffs who did not have
measured BLLs:
[A]sking a jury to assign predictive individual BLLs to those DC
plaintiffs with no measured BLLs would be asking it to reach a
complex scientific conclusion on mere speculation. Dr. MacIntosh
acknowledges that children in a community who have reasonably
similar levels of lead in their environments nevertheless can have
substantially different BLLs. While Dr. MacIntosh cites reports
recommending a “default assumption” of upper, median, and low-end
BLLs in any given neighborhood based on individual variability
factors such as behavior, physiological characteristics, and building
conditions, applying that assumption to those DC plaintiffs with no
measured BLLs invites speculation as to whether their levels would
fall in the predictive range and, if so, where – that is, at the low end,
median, or high end. Because Dr. MacIntosh’s opinions as to those
DC plaintiffs’ predicted BLLs are speculative at best, they will be
excluded.
(Id. at pp. 20-21.) (Citations to record omitted.)
In my Memorandum and Order entered September 9, 2025, I granted
defendants summary judgment on those five DC plaintiffs with no measured BLLs,
concluding that without any evidence of individual BLLs – given the lack of
measured BLLs and the exclusion of predictive BLLs – there was too great a risk
that a jury’s verdict on those plaintiffs’ claims would be based on mere
speculation. (ECF 1524 at pp. 62-63.) I also concluded that evidence of
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 5 of 11 PageID #:
<pageID>

- 6 -
community exposure to lead was insufficient alone to show that those plaintiffs
“were themselves exposed to lead at such levels to cause their claimed injuries.”
(Id. at p. 63.)
In their motion to reconsider, plaintiffs challenge only that part of my
September 9 ruling that granted defendants summary judgment on the claims of the
five DC plaintiffs without measured BLLs, arguing that I erred in concluding that
measured BLLs are required to show lead exposure and in failing to consider other
evidence that those plaintiffs were exposed to lead that caused their claimed
injuries. Plaintiffs argue that failing to cure those manifest errors in my ruling will
result in a significant injustice by effectively ending the cases of hundreds of
plaintiffs who lack individual BLL measurements. Plaintiffs request a hearing
“and an opportunity to present additional evidence [that is] not part of the summary
judgment record.” 	(ECF 1547 at p. 14, n.4.)
Plaintiffs go further in their reply brief, characterizing my ruling as requiring
measured BLLs “as the only way of proving exposure” and arguing that that ruling
forecloses other scientific methods of demonstrating the presence of lead in
plaintiffs’ bodies, such as bone scans. (ECF 1574 at p. 3.) They request that I
permit the five affected DC plaintiffs and all other plaintiffs “to prove their
exposure through bone lead tests” and allow them to now undergo bone lead
testing. (Id. at pp. 9, 12.) Plaintiffs alternatively request that I clarify and limit my
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 6 of 11 PageID #:
<pageID>

- 7 -
ruling to only the five DC plaintiffs without measured BLLs and not to any other
plaintiff, given that “[s]uch an expansive ruling – that a plaintiff without
contemporaneous blood level measurements can never prove exposure to lead –
would fly in the face of established law and have far-reaching and unwarranted
ramifications.” (Id. at p. 12.)
Discussion
Under the Discount Tobacco/Dunne standard, reconsideration of my
September 9 Memorandum and Order is not warranted.
First, plaintiffs had a full and fair opportunity to litigate this issue previously
and indeed did so. Defendants squarely addressed the issue in their motion for
summary judgment to which plaintiffs responded with much of the same argument
and evidence of record they offer here. Although plaintiffs’ motion to reconsider
presents their argument in a more developed way – with citation to several
additional cases they aver support their position2 and specific argument
challenging the cases defendants cited in their motion for summary judgment –
plaintiffs nevertheless previously had a fair opportunity to argue the matter when
the issue was ripe before the Court. I decline to extend them another opportunity.
See Moore, 2024 WL 4144098, at *3.
2 All but two of the cases plaintiffs cite were decided well before plaintiffs filed their response to
defendants’ motion for summary judgment.
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 7 of 11 PageID #:
<pageID>

- 8 -
Turning to the second factor, I have carefully reviewed my September 9
Memorandum and Order and find no error, much less a significant error, in my
ruling on the five DC plaintiffs with no measured BLLs. Contrary to plaintiffs’
assertion, I did not hold that measured BLLs are “required” to show lead exposure
or that measured BLLs are the “only” way of proving lead exposure. At no point
in my Memorandum and Order did I correlate a lack of measured BLLs with a lack
of exposure, either generally or particularly to the plaintiffs in this case. Instead, I
concluded that without evidence of BLLs – either measured or predictive – there
was insufficient evidence of record here showing that those five individual
plaintiffs were exposed to lead “at such levels” to cause their claimed injuries.
(ECF 1524 at p. 63.) I derived that conclusion from the lack of sufficient evidence
pertaining to the level of lead exposure those plaintiffs experienced individually
and not on whether evidence showed mere exposure.
The reasons for excluding Dr. MacIntosh’s predictive measures of the five
DC plaintiffs’ BLLs are thoroughly set out in my July 11 Memorandum and Order,
but I restate with particularity the portion of that Order directly relevant to my
summary judgment determination in the September 9 Memorandum and Order:
Dr. MacIntosh acknowledges that children in a community who have
reasonably similar levels of lead in their environments nevertheless
can have substantially different BLLs. While Dr. MacIntosh cites
reports recommending a “default assumption” of upper, median, and
low-end BLLs in any given neighborhood based on individual
variability factors such as behavior, physiological characteristics, and
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 8 of 11 PageID #:
<pageID>

- 9 -
building conditions, applying that assumption to those DC plaintiffs
with no measured BLLs invites speculation as to whether their levels
would fall in the predictive range and, if so, where – that is, at the low
end, median, or high end.
(ECF 1506 at p. 21.) (Citations to record omitted.) The record on defendants’
summary judgment motion included substantial evidence of lead in the community
to which community members were exposed, including the plaintiffs here. For 11
of the 16 DC plaintiffs, evidence of measured BLLs showed the levels of lead to
which they were exposed individually, which provided a basis upon which Dr.
MacIntosh formed a predictive range of BLLs for those plaintiffs. Notably, despite
Dr. MacIntosh’s acknowledgement and plaintiffs’ recognition that persons in the
same community can have “substantially different” BLLs and that certain variables
can affect the level of lead to which an individual is actually exposed,3 plaintiffs’
response to defendants’ motion for summary judgment did not proffer any
evidence identifying variability factors (e.g., behavior, physiological
characteristics, building conditions) for any individual plaintiff. Consequently,
regarding the five DC plaintiffs at issue here, the record contained no measured or
admissible predictive BLLs and no evidence of individual variability factors to
account for their individual levels of lead exposure. As I determined in my
3 See ECF 1269, Pltfs’ Oppos. to Mot. to Excl. Opns. of Dr. MacIntosh at hp. 19 (“[C]hildren
within the same community, even at the same age, can have very different BLLs due to different
lifestyles, activities, and biological factors.”).
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 9 of 11 PageID #:
<pageID>

- 10 -
September 9 Memorandum and Order, without such evidence, any jury finding that
those plaintiffs were exposed to lead “at such levels” to cause their claimed injuries
would be based on speculation. There was no error, let alone significant error, in
making that determination.
I will therefore deny plaintiffs’ motion for reconsideration of my September
9 Memorandum and Order.
I will also deny plaintiffs’ request for hearing and to supplement the record
with deposition testimony they contend will prove their individual levels of
exposure. Plaintiffs provide no reason why they did not previously submit that
existing evidence when the issue was squarely before the Court.
Finally, I decline to address plaintiffs’ requests first made in their reply brief
that I permit the five affected DC plaintiffs and all other plaintiffs to prove their
exposure through bone lead tests, allow plaintiffs to now undergo bone lead
testing, and that I clarify and limit my holding. Those requests are based on
plaintiffs’ misapprehension that my Order broadly held that blood level testing is
the sole method of demonstrating lead exposure and that a plaintiff without such
testing can never prove their exposure to lead, when plainly it did not. Besides, “a
court generally will not consider an issue raised for the first time in a reply brief.”
Powell v. St. Francois Cnty., No. 4:14-cv-1230-AGF, 2016 WL 695674, at *1
(E.D. Mo. Feb. 19, 2016). See also Bridgeton Landfill, LLC v. Missouri Asphalt
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 10 of 11 PageID
#: <pageID>

- 11 -
Prods., LLC, No. 4:20 CV 1486 RWS, 2021 WL 663156, at *4 (E.D. Mo. Feb. 19,
2021) (belated prayer for relief raised for the first time in reply brief fails to afford
opposing party the opportunity to address the argument).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ Motion for Reconsideration of
Order Granting Summary Judgment on Five Discovery Cohort Plaintiffs Without
Measured Blood Lead Levels [1546] is DENIED.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 29th day of December, 2025.
Case: 4:11-cv-00044-CDP Doc. #: 1577 Filed: 12/29/25 Page: 11 of 11 PageID
#: <pageID>