Anniston Star
March 17, 2003

Jury to decide damages for more than 900 plaintiffs

By Sara Clemence
Star Staff Writer
03-17-2003

Someday, Sallie Franklin hopes, things will be made right.

Someday she will get compensation for not being able to grow okra, corn and greens in her garden. She will be paid for not being able to sell her house, with its polluted yard. Somebody will make up for the fact that her grandchildren have not visited her spotless home for six years, for fear of the PCBs that contaminate the property.

In some ways, someday is today. This afternoon, after months of delay, a jury will begin to decide property and mental anguish damages for Franklin and more than 900 other people involved in a lawsuit against Monsanto and its spin-off, Solutia.

But, as Franklin well knows, someday may also be very far off. The case, which has a total of 3,500 plaintiffs, already has dragged on for seven years. Legal experts say that with a major portion of the trial still to come and appeals likely from either side, it may be many more years before the lawsuit is finally laid to rest.

The plaintiffs in Abernathy v. Monsanto accuse the company of knowingly polluting their bodies and properties with polychlorinated biphenyls, or PCBs. PCBs are a group of highly heat-resistant chemicals that were prized for their ability to insulate electrical equipment. Before Congress banned them in the late 1970s, Monsanto was the only company in the United States to make PCBs. One of the places they made them was here, in Anniston.

Over the decades they were made here, PCBs made their way into ditches and streams and soil, into the air and into people's bodies. There are plenty of chemicals in our environment, but PCBs are a worry because they don't readily break down, instead sticking around in dirt and accumulating in people and animals. Federal health agencies say PCBs are probably carcinogenic; the chemicals also have been linked to learning disorders, liver ailments and heart problems.

The company argues that the chemicals are definitely connected only with a skin condition called chloracne, but residents of western Anniston believe PCBs have caused high rates of illness there.

This lawsuit is not the first or last PCB lawsuit against Monsanto and Solutia. Past cases have been settled for over $40 million, and this October a 15,000-plaintiff case is scheduled to go to trial in federal court.

But the Abernathy case has been the most high-profile case, especially since a jury ruled last year that the company could be held liable for property damage and mental anguish. The national press has covered the case and its evidence extensively; health information collected for the lawsuit drew the attention of federal regulators; community activists testified before Congress about the PCB situation here; investors are watching to see how the outcome could affect company finances.

But after all these years, many are hoping that with this next phase, the trial will begin to wind down.

"I have a feeling this will be the beginning of the end for people who have been harmed," said Anniston Mayor Chip Howell. "The longer it continueswithout coming to a conclusion, the more the wound festers."

Seven-Year Saga

The case started out as three separate lawsuits against Monsanto, all filed in state court in 1996 by Anniston attorney and former U.S. Senator Donald Stewart.

Since then, the cases were melded into one; Monsanto spun off its chemical division as Solutia, which now owns the plant and is the main defendant in the lawsuit; Monsanto was bought by Pharmacia; and Solutia negotiated a controversial agreement to study and figure out how to clean up the Anniston area.

But the lawsuit has persisted, with lead plaintiffs' attorney Stewart still vigorously advocating for the plaintiffs and the companies aggressively defending themselves and their interests. In what they call a quest for a fair trial and what opponents characterize as stalling strategy, defense attorneys have even called into question the integrity of a local judge.

Abernathy was originally set to go to trial before Calhoun County Circuit Judge Joel Laird in early 1999, but the Alabama Supreme Court, responding to a petition from defense attorneys, stopped it just a week before the starting date. Among other things, the attorneys asked the court to split the case up into thousands of individual trials and to change the venue. It took two years for the Supreme Court to make a decision, which in the end was to deny the requests and send the case back to Laird.

After more legal wrangling, including moving the hearings from Calhoun to Etowah County, the case made it to trial at the beginning of last year. Over a period of six weeks, Stewart presented evidence that the company had knowingly polluted the community with PCBs. Defense witnesses testified that Monsanto had acted responsibly, and that PCBs do not pose a serious threat to human health.

On Feb. 22, 2002, a jury unanimously found Solutia liable for negligence, wantonness, fraud, trespass, nuisance and outrage.

Laird quickly ordered both sides into settlement negotiations and began the injunctive relief phase of the trial, in which Stewart and state officials asked for a widespread, court-ordered PCB cleanup.

Both were soon called to a halt. Company attorneys revealed that Solutia had been quietly negotiating a preliminary cleanup agreement, called a partial consent decree, with the federal government, and argued that the decree would pre-empt any court cleanup. They also filed a flurry of motions, including one that accused Laird of being biased and requested that he step down from the case.

Throughout all this, into the first week of September, attorneys continued to present evidence for damages. More than a dozen plaintiffs personally testified, but for many more, the lawyers submitted packets of information that included property appraisals and PCB testing results.

In the months since, the Alabama Supreme Court ruled that Laird acted properly in overseeing the trial. Stewart has fought the consent decree, alleging that the government is conspiring to protect the company from a more expensive and more thorough court-ordered cleanup. But the court cleanup is indefinitely on hold, and the federal cleanup agreement is now awaiting approval by U.S. District Judge U.W. Clemon.

Monday at 1 p.m., Laird will allow attorneys for each side an hour apiece to argue damages for the first plaintiff. The jury will settle on a sum and then move on to the next plaintiff until it gets through all the nearly 1000 claimants.

How long this will take is anybody's guess. People close to the case say it will probably speed up as it goes along, with the jury asking to decide awards for groups of plaintiffs, instead of one at a time.

What's Next

Legal experts say it is not unusual for a "toxic tort" case like this one to go on for years. And while many local residents feel Anniston has an unusually high number of lawsuits, over the past several years, the number of environmental lawsuits has increased exponentially around the country, experts say.

"Now they're everywhere," said Jean Eggen, a law professor at Widener University in Delaware and author of a book on toxic torts. "They're in the public consciousness."

The Abernathy case may be unusual in one way ­ so far, the plaintiffs have been successful. But the personal injury phase of the trial, in which plaintiffs' attorneys will try to prove that Monsanto's PCBs made their clients sick, has not even begun.

"Property damage is a little easier than personal injury," said Eggen. "What you're looking for is the presence of PCBs on the properties."

But for personal injury, the rule of thumb is that plaintiffs have to show that, more likely than not, the substance is what made them sick.

"I think the toxicity of PCBs is pretty well established," Eggers said. "But the other aspect of it is, maybe not everybody who's sick is sick because of PCBs. Cancer can be complicated by many different things, or it can have a genetic basis or occur spontaneously in a population."

Whatever damages the jury decides will not be paid out until the entire trial is over. Sallie Franklin hopes that maybe, starting today, the jury will award such big sums that the company decides to settle, to get it over with so people can move on with their lives. The company has said that it will not settle unless the number of plaintiffs is whittled down.

Franklin, who was the first plaintiff to testify before the jury, will be in court in Gadsden tomorrow to see it through.

"It's been a long time coming," she said, sitting on a velvet-upholstered chair in her house, the last on a dead-end street. She looked away and lowered her voice. "But that's life for you."