← Emerging Litigation Podcast
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- [00:02]
A
Welcome to the Emerging Litigation Podcast. This is a group project driven by HB Litigation, now part of Critical Legal Content, and Velex companies Fastcase and lawstreet Media. I'm your host, Tom Hagee, longtime Litigation News editor and publisher and current litigation enthusiast. Now, here's today's episode. If you like what you hear, please give us a rating. Today we're going to give you an update on something that just recently happened. I wanted to explore from a legal standpoint, what goes on in the immediate aftermath of a toxic event. One just happened on Sunday, September 29, in Conyers, Georgia, about 25 miles east of Atlanta. Correct me if I'm wrong, there was a catastrophic chemical reaction. I guess to you and me it would look like a fire. And I think that's what everybody call it. Technically, it's a chemical reaction which took place at a factory that makes chemicals for swimming pools and spas. It caused the evacuation of 17,000 people who have been instructed to shelter in place. On October 3, the Atlanta Journal Constitution wrote that a massive smoke plume continued to hover over Rockdale county and surrounding areas. The plume carries chlorine, chloramine, bromine and other chlorine compounds. I invited my guest to talk about what's keeping attorneys busy at this early stage. Do the parties look to settle quickly? What kind of claims might we see? What are the plaintiff attorneys doing to gather information, identify people, map affected areas? What are the people doing to find representation? What might defense counsel be looking to do? Are they looking at early compensation for residents? And what would be the pros and cons if they do? And then what about medical monitoring when you've got things like this that go on? You know, if there's going to be a disease that takes a while to develop. So let's talk about that too. So a quick update, literally before the smoke has cleared. Residents have filed at least six suits seeking damages for as many as 90,000 people. The defendants are plant owner Biolab and its parent, Kik Consumer Products. The suits are filed in state and federal court. They focus on health and property related issues tied to the emergency evacuation and shelter in place orders, according to the Atlanta Journal Constitution. And welcome back to the podcast Birmingham, Alabama attorneys Ed Gentleman and Catherine or Kip Benson of Gentle Turner & Benson LLC. Both attorneys bring years of experience administering billions of dollars worth of mass tort settlements. You can read about their deep experience and both of their impressive legal and scientific degrees in the show. Notes. I thought of Ed because I knew he handled the settlement of a case arising from the same location in Georgia in 2004, even though I was told there wouldn't be math, that appears to be 20 years ago. Here's a quick take on what's transpiring in Georgia with Ed Gentle and Kip Benson of Gentle, Turner and Benson. I hope you enjoy it. Tell me a little bit about what happened in 2004 and what your involvement was.
- [03:28]
B
I'd be happy to. So in 2004, May 25 and 26 of 2004, at the same sites, but maybe a different part of the site, there was a burn, a fire, and the claimants evacuated a certain area. And then there was a lot, a bigger area in which there was an area of concern from the smoke and from the fire. And what happened in that case. There are two key lawyers, Roger Orlando and Lou Garrison, and they had a fair number of clients and they asked for what's called a class action settlement, which means you have representatives of the impacted group and you get the court to approve them as name plaintiffs for all the group. And then if you don't like that, if you're in the area, you can opt out or stay in. And most of the claimants stayed in. So they rounded up claimants, they brought their class action, they settled with. The company's name at the time was Kemtura. C H E M T U R A It later went into bankruptcy and it may have sold this plant to someone else. Now that'd be my expectation. And so they had a settlement and we administered it and paid it out. What they did, what you would expect in most of these cases, for example, train wrecks are very similar. You have an explosion or a fire, you have people evacuate or shelter in place. And then a lot of times they have a choice of filing two types of claims. One is a claim without any underlying proof and it tends to be smaller. And then another one is a claim with more proof. So you can, if you just lived in the area at the time or owned property in the area and you weren't severely impacted, that's the quickest and the simplest thing to do because you don't have to submit proof, you just have to show that you live there or you own the property. If, however, you're more greatly impacted, let's say you had some physical problems as a result, say ingesting the smoke, or in this case the new case, the chlorine, and have a doctor's care, maybe some long term medical problems. You could file for what's called higher benefits or special benefits. Likewise, if the property had some severe damage, you could look to that. So that's the fork in the road for the claim. That's usually in this case. So I think the words of the wise would be to keep your records, maybe to keep a log so you can document, you know, what happened to you and when and what the backup may be. So what's happening now, ironically, is a lot of these claimants in the new case are calling our firm because we had the old case and we're referring those lawyers to Roger. And he's, he told me the other day he's in the process of, of a wash and repeat. He's going to probably do the same sort of thing.
- [06:09]
A
That's what he's doing now. That's. So that's the activity is identifying who may be affected, how they may be affected, which bucket they might fall in. Is that what's, is this kind of the gathering of evidence stage for him?
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B
It is. And usually what he'll do is he'll have an expert. You'll saw, you saw in this 202004 case, there's a nice map that documents what was the evacuation area and what was the bigger impacted area. So usually get an expert, usually they're experts in the wind dispersal of contaminants and they map out what's called the area of concern. And that would be the set of claimants that are potentially in this case.
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A
Okay, all right, so the, so residents are contacting you, you're referring them to him. And so what, I guess on the defense side, what would you anticipate is going on with the company and its firms? What might they.
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B
What usually happens in these cases? And I think CSX designed this and it was seen again in bp. The defendants, shortly after this sort of an event often set up a pay station and you have payments and often with checks with the release on the back. And claimants can get in line and negotiate with the paymaster on how much they should be paid to release their claim. And that's done a lot in train wrecks. It was done in BP, as you'll remember, with Ken Feinberg getting $25 billion to do that. And the advantage to the defendant is you're using hundred cent dollars. That is there's no legal fee for plaintiff lawyers being subtracted. So the money goes a long way. The claimants like it because they get paid immediately as opposed to one or two years into the future. And so that's a good way for the defendant to take some of the steam out of the case, I guess.
- [07:53]
A
This one, they're drawing a distinction. This was a chemical reaction, not a fire.
- [07:58]
B
That's right.
- [07:59]
A
As a layperson, when I see just stay indoors, that just always strikes me as. I guess that's good. It just doesn't seem. Just doesn't give me a lot of reassurance, I guess.
- [08:10]
B
It's certainly a good safety measure though.
- [08:12]
C
Yeah, it's calming in the, in this kind of thing to have a shelter in place. Order the ones that are closer to the area they may have evacuated, which I believe they did. But the shelter in place, they want to keep you out of the air. So they want you to turn off your air conditioning, insulate yourself in an area where you may not be as exposed. So that is a common thing.
- [08:35]
B
It's really the only practical remedy for a big community.
- [08:38]
A
What do you expect to happen next?
- [08:41]
B
What usually happens is there's a lawsuit filed.
- [08:46]
A
I just wanted to drop this in here since I recorded this with Ed and Kip. There were already quite a few suits already filed, class actions on behalf of tens of thousands or as many as 100,000 folks against Biolab and Kik, the parent company. So things happen.
- [09:03]
B
Quick Cardi's enter into what's called a mediation or some settlement talks. They try to work up a settlement. When that happens, they often bring it to Kip and me to fine tune it to make sure it complies with certain rules. For example, you want to squarely state what part is for personal injury and what part is for property damage. Personal injury a lot of times has to go through a medical lien process that is Medicare, Medicaid, Blue Cross and other private insurers. If you have personal injury, property damage doesn't require all that. So you can often pay that quicker. That's a big plus. The other thing they asked us to do many times is to look at it for fairness. We compare it to other, other cases we've had because the court will be interested in any class settlement to decide whether it's fair and reasonable based upon all the circumstances.
- [09:51]
A
What about on the medical monitoring side? Is it too early to talk about that or would you anticipate there?
- [09:57]
B
As I remember, Georgia is not a medical monitoring state. We only have 12 that you remember, Tom. Yep. A lot of times though, the Plant lawyers will ask for it. This might be a better candidate than the one 20 years ago because chlorine is certainly an established toxicin and has some long term impact. So it could be a remedy to explore. It may very well be explored. We haven't heard that from Roger, but over the years he's, he's looked at that in different cases so it could appear here.
- [10:24]
A
Now at this point in interview, I asked Ed if there was anything else he wanted to talk about. He wanted to draw some comparisons and comment on the impact of the case. In East Palestine, Ohio, where there was a, you might remember there was a train derailment and there that released toxic chemicals and caught fire. And since then there's been class action lawsuits filed against Norfolk Southern Railway by residents, businesses and property owners within 20 miles of the derailment site. Recently, a federal judge approved a $600 million settlement from Norfolk Southern to those affected by the derailment. And some say this is probably the largest, largest settlement in U.S. history for a railroad disaster. Settlement is going to be distributed to all affected families. Each person is estimated to receive about $6,000 is what I'm reading. So back to Ed, if you look.
- [11:19]
B
At these paydays, this 20 year old case, they're very small. You can see that for example, for individual claims there's, they range from $60 to $230, property claims, 70 to $245, business claims, $1,000 to $4,000 in special damages for say 20% of the population. The East Palestine case really added a zero to what you normally see in these cases. And I think that'll that probably will bode well for future such disasters, be they train wrecks or factory fires or.
- [11:52]
A
Anything similar that may have an impact on this case. We don't know for sure, but that case is going to influence others behind it, as you said.
- [12:00]
B
Definitely. In that Ohio case, the court tossed out a medical monitoring remedy.
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A
Okay, is that, I can't remember if Ohio is, is a medical monitoring state.
- [12:10]
B
It's not. It's not. It's a back to the future type of thing. You can't have a remedy until you're hurt. But I don't know if I'm going to be hurt if you don't monitor me. So there you have it. It's a dilemma.
- [12:21]
A
That concludes this episode of the Emerging Litigation Podcast, a co production of HP Litigation, Critical Legal Content, Velec's Fastcase and our friends at lawstry Media. I'm Tom Hagee, your host, which would explain why I'm talking. Please feel free to reach out to me if you have ideas for a future episode. And don't hesitate to share this with clients, colleagues, friends, animals you may have left at home, teenagers you've irresponsibly left unsupervised and certain classifications of fruits and vegetables. And if you feel so moved, please give us a rating. Those always help. Thank you for listening.