What began as a trickle is turning into a deluge of litigation against the Monsanto Co. and its spin-off company Solutia over its longtime practice of dumping PCBs on its landfill in Anniston, Ala.
The companies deny liability, but in the last five years they’ve spent more than $87.7 million in settlements and compensation and another $19 million in cleanup costs. Lawsuits alleging damage to residents’ health and property have brought to light damaging corporate documents about Monsanto’s knowledge of the dangers of PCBs and paved the way for more suits.
One suit, on behalf of about 3,500 plaintiffs, is currently in trial. Abernathy v. Monsanto, No. CV-2001-832 (Etowah Co., Ala., Cir. Ct.). The first phase of the trial, which began the second week of January, is expected to be done next week.
An even bigger threat may be on the horizon. A team of plaintiffs’ lawyers has filed a suit
making similar claims on behalf of almost 14,000 more litigants. Tolbert v. Monsanto’, No; CV01- C-1407-W_(I’J.D. Ala.).
St. Louis-based Monsanto for decades manufactured polychlorinated biphenyls, or PCBs. It was the United States’ only maker of the product — a nonflammable, heat-conducting material used to insulate electrical transformers, for coils in deep-fat fryers and for commercial purposes like pesticides, paint and newsprint. The company produced the chemical at two locations, in Anniston and Sauget, III., from the mid-1930s through the early 1970s. Some of the PCB, an oil, escaped the plant and leaked directly into the soil, lawyers assert. Some was in a byproduct that was discarded.
The plaintiffs allege that as the factory in Anniston dumped PCBs into landfills on the property and into the plant’s sewer system leading to ditches, flooding caused the PCBs to flow onto the surrounding property and into nearby creeks. This polluted soil, waterways and eventually the atmosphere in the largely black neighborhood, it’s alleged.
The plaintiffs’ allegations have received indirect support from the Environmental Protection Agency. EPA tests of Anniston’s soil and water have shown high levels of PCBs.
The Tolbert plaintiffs claim that as a result of the exposure, children and adults suffer from cancer, neurological problems, liver problems, skin disorders, learning disabilities and cerebral palsy.
They point to corporate documents that, they allege, show that the company knew of the health dangers to their customers and neighbors but sought to conceal that to protect profits.
"This company carried out activities over nearly a 40-year period that resulted in the direct discharge of over 100 million pounds of PCBs directly into the waterways and soil in this county," charges plaintiffs’ attorney David Byrne III of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. "Generations of African-American residents of West Anniston have been impacted by repeated decisions of Monsanto executives to put profits over people."
The plaintiffs’ documents include:
• a 1938 report of an experiment done for the chemical company showed that rats exposed to PCBs developed liver damage; and
• a 1955 letter from Monsanto’s medical director acknowledging that PCBs are toxic but said it was-unclear at what level, and discounting the company’s worries about the levels of discharge at the plant.
The medical director, R. Emmet Kelly, went on to write, ”It does not make too much difference, it seems to me, because our main worry is what will happen if an individual develops-any type -of liver .disease and gives a history of Aroclors exposure. I am sure the juries would not pay a great deal of attention to MACs," meaning maximum allowable concentrations of PCBs. Aroclors was the brand name of the chemical.
In 1975, a company-sponsored study by Industrial Bic-Test Laboratories found that PCBs
caused tumors in rats. Monsanto officials requested that the researchers change the language of the report to conclude that rather than "slightly tumorigenic," the tests showed that the PCBs’ effect on rats, "does not appear to be carcinogenic." The researchers complied.
The Washington Post last month reported that additional documents in the hands of other “plaintiffs’ lawyers include a 1966 company study done by a Mississippi State University
biologist. The biologist found that fish submerged in the nearby Snow Creek turned belly-up after 10 seconds and were dead in 3 1/2 minutes. The biologist urged a cleanup of the creek, and attributed the deaths to PCBs, the newspaper said. In 1997, Monsanto spun off its chemical business into Solutia, a separate company. Monsanto officials referred questions to Solutia officials, who declined to be interviewed for this article. They said a gag order in the current trial prevents them from prevents them from discussing past or future suits as well.
Solutia officials have asserted in past public statements and on their Web site that despite a 1979 government ban on PCBs, there is not scientific consensus that PCBs are a carcinogen.
On the Web site, devoted to the Abernathy case, the company says, "There is no credible
evidence that PCBs caused, or will cause, any of the plaintiffs to be sick. Studies of industrial workers have shown no illnesses attributable to PCB exposure, other than an acne-like skin rash and a temporary elevation of some liver enzymes."
Throughout the 1970s, health concerns over PCBs grew across the country. In Anniston, the mostly poor, black residents of the affected neighborhood had trouble getting the attention of officials and lawyers, the plaintiffs’ attorneys say.
In the 1990s, they say, state and federal officials began testing that garnered attention. The EPA opened an office in Anniston to monitor PCBs and other toxic chemicals, and plaintiffs’ attorneys also began finding hugely elevated levels of PCBs in yard soils, dust inside homes, and in the blood of residents.
Plaintiffs’ lawyers began taking cases, but because individual damages varied, few could afford to take on many clients at a time.
Most of the past settlements are for property damage. In 1999, the company settled a suit
brought by 4,300 property owners living around Lake Logan Martin for $43.7 million, which included $21 million to clean up the lake, Choccolocco Creek and Snow Creek.
That same year, Monsanto settled a separate suit for $2.5 million with a church seeking to move to a location not contaminated by the banned chemicals.
Last year, the company settled with 1,600 former and current Anniston residents claiming both health and property damage for $40 million. The company has spent about $1.5 million to purchase residents’ homes near the plant in a buyout program that began in 1996.
A CRITICAL HURDLE
In bringing the health claims, the Tolbert plaintiffs, as well as the Abernathy plaintiffs now in trial, face one big hurdle. Alabama has a two-year statute of limitations for personal injury claims by adults that begins at the date of exposure. That’s part of what is prompting the enormous numbers of plaintiffs to file now.
But if the plaintiffs are not actually sick now, they may not fare well in court. Last year, the Alabama State Supreme Court ruled against medical monitoring for plaintiffs that are not yet ill. In the Abernathy case, the judge has already refused to admit plaintiffs to the case who weren’t sick.
That means that some Anniston citizens could be caught in a Catch-22. They could be exposed but not suffer injuries until the statute of limitations for their injury has expired. Byrne says the issue still isn’t settled but he hopes there will be a tolling provision for defendant misconduct introduced to the statute of limitations. He also hopes the statute of limitations will be amended so that it does not begin to run until potential plaintiffs’ injuries develop as a result of the exposure.
< p>One thing that distinguishes the Tolbert case from the one currently in trial and those that came before it are the numbers of children who are plaintiffs. Byrne says that there are about 4,500 more than 100 of whom have cerebral palsy.
"The chances of that happening naturally are astronomical," says Byrne. These cases won’t face the same hurdle as the adults, since in Alabama, the statute of limitations doesn’t apply to children.
Byrne says that the team of lawyers working on the case came together after celebrity lawyer Johnnie L. Cochran was petitioned by an Anniston community group. He visited the town last June, and more than 5,000 people turned out to appeal to him to take their case. Jock Smith of his firm, Atlanta-based Cochran, Cherry, Givens & Smith, the lawyer overseeing the litigation, says his firm talked with Beasley Allen about working together because of the firm’s record on environmental litigation.
They, in turn, reached out to two other firms, Shelby & Cartee and Burr & Forman, which had tried the earlier Lake Logan Martin case. The Birmingham, Ala., firms were already working together on a new case for which they had gathered about 3,000 plaintiffs for a suit.
Because of the diversity of injuries, these suits are being brought individually, not as a class action, although there will be representatives of the various injured groups. But that process makes them both expensive and difficult to manage. Both D. Frank Davis from Burr & Forman and Robert Roden from Shelby & Cartee say that’s why their firms didn’t take on more clients when they were preparing for their plaintiffs who eventually joined in the Toibert case.
"The combined firms here have very deep pockets," says Davis, who adds that money and past
expertise came together to forge their partnership.
"Everybody’s working together to do the work and share the resources we’ve gathered over six years of litigation," he says.