Hunters Point vs. poisoners: ‘We goin’ to trial!’

Federal judge rules agreement between attorneys for Hunters Point community lawsuit and Lennar developers is ‘not a good faith settlement.’

by Ahimsa Porter Sumchai MD

On Thursday, Feb. 20, 2025, the Law Offices of Bonner & Bonner, attorneys for 6,500 plaintiffs of the Bayview Hunters Point Residents’ Lawsuit, received an order from the Jan. 30, 2025, court hearing denying Lennar/Five Point’s motion filed for a determination by the court that the proposed settlement agreement was in “good faith.”

Originally filed on May 1, 2018, the Hunters Point Community Lawsuit sued the Master Developers (a term given by the City to Lennar and its spin-off Five Point – ed.) building housing on Parcel A of the Hunters Point Naval Shipyard, a delisted federal Superfund site, to halt excavation, demolition and redevelopment activities until testing proved it was safe.

The 2018 lawsuit did not demand money for damages to Hunters Point residents. It asked the court for an injunction to prevent the homebuilders from developing Parcel A.

According to reporting by KALW in November of 2022, housing developers Lennar Corp. and Five Point Holdings agreed to a proposed deal to pay $5.4 million to resolve claims they failed to properly mitigate dust and particulates while redeveloping the delisted federal Superfund site. The proposed settlement included $3.5 million dollars for named plaintiffs and current residents, $100,000 for former residents. It also calls for the Master Developers to pay $400,000 into a public health fund to provide health monitoring and testing services for class action plaintiffs exposed to toxins during construction at the shipyard.

 In denying the settlement motion, the San Francisco Business Journal reports, US District Court Judge James Donato said the settlement motion provided insufficient details about over 9,000 listed plaintiffs and that he could not assess whether the settlement, which would release the developers from all claims, including wrongful death, would be “fair and reasonable.”

“I am pleased to nominate distinguished individuals to service on the United States District Court Bench. I am confident they will serve the American people with integrity and a steadfast commitment to justice,” said President Obama upon his nomination of Hon James Joseph Donato

James Donato is a federal judge for the United States District Court nominated by President Obama in June of 2013 and confirmed by the United States Senate on Feb. 25, 2014, on a vote of 90-5. Donato earned a BA from UC Berkeley in 1983, an AM degree from Harvard in 1984 and a JD from Stanford Law School in 1988. From 1993 to 1996 he served as deputy city attorney in the San Francisco City Attorney’s office.

On Feb. 8, 2020, Attorney Charles Bonner addressed plaintiffs in the Bayview Hunters Point Residents Community Lawsuit at Kiska Road Community Center in Hunters Point. He said:

“We understand why many of you feel like giving up. This is a complicated lawsuit to win. As your attorneys, we want you to know we are still in the ring, still litigating with the defendants, still fighting for justice, and not giving up.

“There are no words to express the enormous disappointment for all 6,500 of you who have done everything asked of you to get this far in the lawsuit and still have nothing to show for it.

“A trial date is set for 2026. The year 2025 is being spent preparing discovery, depositions and motions for trial … and still working toward a settlement with both Lennar and Tetra Tech.

“We thank you for your continued patience and pray for your safety and well being.

 “In Unity,

“Charles and Cabral Bonner, Attorneys for Plaintiffs”

In Pennington v. Tetra Tech EC, 18-cv-05330-JD (a related lawsuit filed by buyers of the Lennar/Five Point-built condos – ed.), is this statement: “The maximum recovery figure was adjusted to $51.5 million for purposes of final approval, Dkt. No. 200-4.”

United States District Judge James Donato ruled on Feb. 20, 2025, that the request for a good faith determination of the proposed settlement by Lennar Corp. and Five Point Holdings LLC was denied. [See https://casetext.com/case/bayview-hunters-point-residents-v-tetra-tech-ec-inc.]

The request was Lennar’s second attempt to settle the lawsuit. In November 2022, Bonner & Bonner moved to approve a class settlement proposing a $5.4 million cash payment by the homebuilder.

On Dec. 8, 2022, the Court denied approval for the proposed settlement because “plaintiffs had not adequately explained why a $5.4 million settlement was fair and reasonable when the original lawsuit sought $27 billion in damages against these defendants.” In a March 28, 2022, settlement decision between Lennar/Five Point and Parcel A homeowners, Donato documents a maximum recovery figure of $51.5 million.

In Pennington v. Tetra Tech, Donato approved the class action settlement against Lennar and made a good faith settlement determination in the action brought by current and former homeowners who purchased homes on Parcel A of the former Hunters Point Naval Shipyard.

Donato concluded the homebuilder could be assigned up to 50 percent fault and ruled that, “accepting that plaintiff’s total recovery would top out at $51.5 million, the Lennar defendants potential liability would range from $5.15 million to $25.75 million…. In the Court’s experience these outcomes are well within the broad parameters of the ‘ballpark’ in which settlements will be deemed to be in good faith.”

The determination of a good faith settlement is governed by California Code of Civil Procedure. In Tech-Bilt Inc. v Woodward-Clyde & Associates, 38 Cal.3d 488 (1985), the California Supreme Court concluded dual goals are the equitable sharing of costs among parties at fault and the encouragement of settlements.

In denying the good faith settlement agreement proposed by Lennar/Five Point, Judge Donato points to “collusion” between attorneys for the defendants and the 6,500-plaintiff lawsuit in an agreement to join forces against Tetra Tech.

The Bonner law firm denies entering into a signed agreement with Lennar, but documents on the lawsuit website inidcate that because there were more than four cases against Tetra Tech where plaintiffs were suing the corporation, all the attorneys agreed to work together.

The Greatest Story Never Told: Hunters Point school children take on Lennar Corp.

“The plaintiffs alleged that they were injured by dust containing natural asbestos, which became airborne as a result of defendants’ grading-related activities on a parcel of land in San Francisco. They further alleged that they had suffered various physical symptoms including headaches, red eyes, bronchitis and other respiratory problems, sinus infections, nosebleeds, chest pain and skin rashes.” – an excerpt from the case of Marsae Scott et al. v Lennar Corp.

Before the Superior Court of the City and County of San Francisco in file No. CGC-08-274702 is the incredible true story of a group of 15 plaintiffs who were parties to a tort action against Lennar Corp. and its subsidiaries, arising from their exposure to hazardous substances in dust displaced by the “master developer” during the grading of the serpentinite bedrock of the Hunters Point hilltop in 2005 to 2008. All 15 plaintiffs were minors who lived or attended school near Parcel A. Many had been hospitalized or seen in emergency departments during the redevelopment of Parcel A.

In August of 2007 the San Francisco Board of Education voted unanimously to shut down the hilltop grading in a hearing in which parents, educators, custodians, school nurses and exposed community members testified against the mass exposures caused by the grading of the hilltop.

Serpentinite bedrock is a natural source of fine and ultra fine particulates, asbestos and naturally occurring heavy metals like arsenic, iron, manganese and nickel that have been detected using human biomonitoring in the bodies of Hunters Point residents and workers. 

A photo published by the San Francisco Bay View newspaper documents the active grading of the Hunters Point hilltop in 2007 adjacent to homes and vehicles with no dust barriers.

 On June 19, 2008, the plaintiffs filed a complaint for damages against Lennar Corp. and its contractors. Causes of action included public nuisance, negligence, environmental racism, intentional and negligent infliction of emotional distress and battery.

“Causation” is an essential element of a tort action. Defendants are not liable unless their conduct was a “legal cause” of a plaintiffs’ injury.

The court ruled the plaintiffs failed to present any evidence of the presence of asbestos laden dust and that the levels were injurious to their health. Marsae Scott et al. contend the trial court improperly denied their motion and that the court erred when it ruled they had not raised a triable issue of fact regarding causation. The court summarized, “Plaintiffs’ evidence lacks competent expert testimony or any other evidence showing causation, failed to raise a triable issue of fact as to whether any of the plaintiffs were exposed to toxins in dust from Parcel A at levels to cause harm, and that toxic dust was a factor in any of the plaintiffs’ illnesses.

“The law is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony.” (See https://casetext.com/case/scott-v-lennar-corp.)

Having served as expert witness in deposition statements supplemented by evidentiary documentation of human exposure entered into evidence in USA v. Tetra Tech and Hunters Point Residents v. Lennar/Five Point, I fully agree with the legal opinion of Judge Donato and believe the homebuilder should be held to a maximum recovery of $51.5 million for harm and damages to the people of Bayview Hunters Point.

SF Bay View Health and Environmental Science Editor Ahimsa Porter Sumchai, MD, PD, founder and principal investigator for the Hunters Point Community Biomonitoring Program, founding chair of the Hunters Point Naval Shipyard Restoration Advisory Board’s Radiological Subcommittee and contributor to the 2005 Draft Historical Radiological Assessment, can be reached at [email protected]. Dr. Sumchai is medical director of Golden State MD Health & Wellness, a UCSF and Stanford trained author and researcher, and a member of the UCSF Medical Alumni Association Board of Directors.

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Source: https://sfbayview.com/2025/04/hunters-point-vs-poisoners-we-goin-to-trial/