Aftermath of Anniston, Ala., Pollution Settlement Is Anger

posted on:
April 12, 2004

author:
Charles Seabrook

category:
Environmental

Apr. 12 –ANNISTON, Ala. – David Baker helped persuade powerful lawyers some years ago to represent thousands of people possibly harmed by toxic PCB contamination form a nearby chemical plant. He also recruited dozens of the plaintiffs.

The federal court case was settled last year for $300 million against chemical giants Monsanto, Solutia, Pfizer and other firms — which admitted no wrongdoing.

Now, Baker says he’s receiving death threats. And thousands of folks in Anniston are realizing that the big winners in such class-action suits are usually the lawyers.

Many locals, he said, are angry with him because they think he helped the lawyers — including California celebrity attorney Johnnie Cochran — get millions of dollars while the plaintiffs ended up with only a few thousand dollars, on average.

“I was one of the claimants, and I didn’t get a whole lot myself,” says Baker, executive director of the activist group Community Against Pollution. “So, I’m asking that people please stop making death threats against me. I’m not the enemy.”

The outrage over the settlement has left the plaintiffs seething—and has ripped apart the once close-knit, predominantly black and poor west Anniston community that for years was plagues by widespread pollution in creeks and landfills.

Plaintiffs contended they suffered cancer, liver disease, mental anguish and property losses from the plant’s contamination. PCB’s, polychlorinated biphenyls, a once-common group of electrical insulators, were banned in the 1970s because of possible links to cancer, liver disease and learning disorders.

If they has gone to trial in October, lawyers say they were prepared to roll out a courtroom litany of their clients’ cancers and other ailments. The settlement averted a trail.

One of those clients, Adele Battle, 65, has lived in West Anniston near the former PCB plant for more than 35 years. Blood tests showed she had high levels of PCBs: she has a cancerous breast removed and said she has suffered from other maladies, including a serious skin disorder. Her husband died of colon cancer in 1998.

“A lot of other people in the neighborhood have died of cancer,” Battle said. “I believe it was because of the PCBs.”

The controversial payments in the federal settlement were revealed in court documents and letters released last month. Combined with a related state court class-action suit, the total settlement amounted to $700 million.

Eight law firms — 27 lawyers in all—will share $120 million, roughly 40 percent of the settlement in the federal case —an average of $4.4 million per lawyer. Cochran’s firm is getting about $29 million; former Alabama Lt. Gov. Jere Beasley’s firm is receiving $34 million.

About 47 percent —some $142 million — goes to the 18,447 plaintiffs, an average of $7,725 each. The money will not be divided that way, however. Some will get as little as $500; those considered to be harmed the most will get the most money.

Plaintiffs are accusing their lawyers of greed.

“The appearance is, you and the other lawyers took the money and ran, and that has left a bitter taste in out mouths for you,” says Beverly Carmichael in a letter to Cochran.

Baker and his wife, Shirley, also with Community Against Pollution, say trusted friends have warned them of talk “that someone was going to do a hit on us.”

Carmichael, herself a community adviser to Community Against Pollution, says she is sorry that someone it threatening Baker. But she and other plaintiffs—some of whom hoped “to pay off bills, move form this area and start life afresh”— now want some answers.

It is hard to comprehend, she said, how the lawyers received millions of dollars and left individual plaintiffs with only “a small amount of money.” The plaintiffs want the lawyers to put half of their settlement money back into fraud “for the plaintiffs, for the victims, for the community, so that the healing process can begin,” she said.

Cochran’s law firm did not return phone calls. But in a letter to Carmichael, he said that he was “consulting with all counsel” and the federal judge in the case regarding the plaintiff’s concerns.

Beasley, one of the lawsuit’s lead lawyers, said that each client knew from the outset the lawyers’ contingency fee percentage because it was spelled out in the contracts they signed. His own firm reduced its typical rate by 5 percent, he said.

The lawyers have said they initially put up more then $7 million of their own money to file the 2001 federal case and cover litigation costs.

“The fees were approved by the court, and they are not out of line for a case of that magnitude,” Beasley said. “I think we got good results.”

Carlton Carl, spokesman for the Association of Trial Lawyers of America, said lawyers; contingency fees as high as 45 percent of a settlement are normal in such cases.

"The fact of the matter is that the contingency system is the only thing that allows most people to be on an equal footing with large, powerful corporations who can afford to pay their attorneys $500-600 per hour for thousands of hours of work," Carl said. "In most cases like this, plaintiffs don’t have to put up a dime of their own money to sue," he said.

The federal lawsuit, Tolbert v. Monsanto, is one of two settled last year over the decades-old PCB pollution in Anniston. The second lawsuit, a state case with separate clients, also was settled for $30C million, with another $100 million earmarked for a community health clinic and other programs.

Lawyers in that case received about $129 million, or 43 percent of the total. That case had about 3,500 plaintiffs, some of whom will get hundreds of thousands of dollars.

"I tell people in the federal case to do the math," said Baker, a state plaintiff himself. "When you have a whole lot more plaintiffs, there’s only so much money to go around."

Even if the lawyers "did not get a dime," he said, each plaintiff in the Tolbert case still would only get an average of about $16,000.

The Anniston plant made PCBs in the west Anniston community for 40 years, until 1971, while operating under the Monsanto name. Monsanto disposed of tens of thousands of pounds of PCBs by dumping them into creeks or burying them in and around Anniston. I n 1996, one of the dumps started leaking — it was then that residents began to learn the extent of the contamination.

Plaintiffs in both lawsuits said their homes and their physical and mental health were harmed by the PCBs, which polluted waterways and drainage ditches, tainting the fish they ate as well as their land.

Baker, who grew up a mile or so from the Monsanto plant, suffer from skin rashes. His wife said his brother died of a brain tumor, lung cancer and hardening of the arteries at the age 16.

Denise Chandler, 46, and her brother played in one of those ditches when they were children. "We floated our little boats in it and waded in it, but we didn’t know it was loaded with PCBs," said Chandler, a plaintiff in the Tolbert lawsuit.

Both she and her brother had high PCB levels in their blood when they were tested. Her brother died at age 40 of kidney failure and other problems, she said. Two of her three children were born with learning disorders, Chandler added, and she herself suffers from sarcoidosis, a malady o f unknown origin that causes inflammation of the body’s tissues.

No proof of harm

Because the federal and state cases never went to trial, no one has proved that Anniston residents are sicker than average or whether cases of cancer and other maladies are connected to the PCB pollution.

"We have not found any excessive cancer rates there," said Rida Wilson of the Alabama Statewide Cancer Registry, which is funded by the U.S. Centers for Dis
ease Control and Prevention. Her office and the federal Agency for Toxic Substances and Disease Registry are continuing health studies in the area.

Claims of harm from PCB pollution also have not ended — individual lawsuits are pending in court, and others are expected to be filed.

The latest was filed last week in federal court in Birmingham by a New York lawyer in behalf of Susan Fraiser, a former member of the Women’s Army Corps who was stationed at Fort McClellan near Anniston in 1970 and returned to live in the area from 1974 to 1977. She alleges t h a t she had endometriosis and underwent a hysterectomy, as well as suffering from a skin disorder, gastrointestinal diseases and other maladies because of PCB exposure.

Company officials declined to comment on the lawsuit.

David Baker said that despite the criticism and the threats, he intends to help his community heal.

A former union organizer, Baker created Community Against Pollution in 1998 to force the chemical companies to clean up the contamination and compensate those harmed by it. At his urging, EPA tested soil and water, finding alarmingly high levels of PCBs. Residents’ blood had the country’s highest recorded levels of PCBs.

Baker then helped recruit lawyers and plaintiffs for the lawsuits.

"People think that CAP is getting a lot of money from the settlement;" Baker said. "But-we didn’t get anything. I even had to take some of the money I personally got from the settlement [about $22,000] and pay some of CAP’S bills."

PCB SETTLEMENT

Total settlement amount:

Federal settlement …………………….. $300 million

Interest income:. ……………………… ..-

Medical clinic:

For prescriptions, medical care and tests….-$25 million

Attorney payment:

27 lawyers / eight firms ……………….. -$I20 million

Advance payment:

To claimants ……………………………. $ 9 million

PCB blood tests

Budget for past and future testing ………… -$3,985,000

Taxes

2003 estimated income tax payment ………….. -$150,000

Total amount for claimants: ……………… $142,533,161

Average amount left for each of the

18,447 claimants …………………………… $7,725

SOURCE: Community Against Pollution ………… *Estimates

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@ 2004, The Atlanta Journal-Constitution. Distributed by Knight RidderITribune Business News. MON,

SOLUQ, PFE,

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