Beyond the Flames
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Part three
Part four
Part five
Part six
Part seven
Part eight
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In their own words
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Cancer Incidence
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May 5, 2000

A life fades, and a lawsuit takes shape

By Susan Q. Stranahan
and Larry King
INQUIRER STAFF WRITERS

"Moose" McLaughlin wore a powder-blue tuxedo, white shoes, and a carefree grin that had everyone fooled.

His daughter was getting married, and the Chester fire captain would not allow his private pain to intrude.

No one seemed to notice the outward swing of his right leg as he walked Kelly Ann, 21, down the long center aisle of Our Lady of Charity Roman Catholic Church in Brookhaven on June 7, 1985.

Later that Friday evening, he lit up the reception hall, mugging for the cameras, yukking it up with his firefighter pals and the other 200 guests as champagne corks popped.

When the deejay played "Daddy's Little Girl," he swayed slowly with Kelly Ann, beaming down at her as Al Martino crooned. "Kiddo, they want us to cry," Moose told her, "and we're not going to do it."

He next danced with his wife, Judy, then stepped away, into the background. For a while he stood oddly alone, nursing a beer beneath the red glow of an exit sign.

By Monday morning, he could barely get to his feet. From his second-floor bedroom, he made it down the hall to the top of the staircase, then sat and yelled for Judy.

"Call the ambulance," he said. "I can't do it anymore."

The cancer had reached his spine. He never again would walk on his own.

The advance of his disease did not take McLaughlin by surprise. Two years earlier, doctors had warned him to get his affairs in order. And in one respect, he had.

In August 1983, a month after his thyroid cancer was diagnosed, he had hired a Center City law firm, Adler & Kops. Certain that the Wade fire had ruined his health, he wanted to sue those responsible for the chemicals dumped there. If he could not provide for his family, he reasoned, they should.

He saw how hard life had become for the widow of Marvin Cherry, who also fought at Wade and then died of lung cancer in 1982, at age 40. He had been gone more than a year, and Joan Cherry was still battling red tape at City Hall for a widow's pension. Without it, she and their three young children were scraping by on Social Security.

She also had filed for death benefits under workers' compensation, insisting that a decade of city firefighting had killed her husband. It would be six years before she won that claim.

McLaughlin wanted to spare his family that uncertainty. He wanted to leave them with money. And the odds of his getting it from the producers of the Wade dump chemicals would never be better.

By the end of 1983, a window had opened - briefly, it turned out - for people who, like McLaughlin, believed they'd been poisoned by corporate America.

Trial lawyers nationwide were smelling sweet opportunity in toxic sludge.

Thousands of toxic dumps were being discovered across the country. It added up to a huge pool of possible clients.

One early verdict in particular caught everyone's eye.

In November 1983, a jury in Toms River, N.J., awarded $16 million to 97 families whose drinking water was polluted with carcinogens leaking from a landfill. But it wasn't just the amount of money that sent a jolt through legal circles - it was the reasoning behind it.

The families had won damages for emotional distress and medical monitoring by arguing merely that the chemicals had upped their odds of someday getting cancer.

"Nobody died. Nobody got sick. Nobody even glows in the dark," one product liability attorney complained afterward. "The plaintiffs proved no link between the chemicals and any illnesses."

It was only one verdict, but it telegraphed a message: These cases were winnable.

At the same time, the cost of filing them was falling, thanks to free spadework by the federal government.

In Superfund's first three years, the Environmental Protection Agency had sued hundreds of firms whose chemical wastes were disposed of illegally. EPA files were bulging with company records documenting their involvement in the dumping. That made it easier for the little guy to find a trial lawyer willing to sue. Simply following EPA's paper trails could save months of costly investigation.

So-called "toxic tort" lawsuits had become a gamble worth taking, even for some small law firms. Which Adler & Kops surely was.

The two-year-old Philadelphia practice seldom had more than four or five lawyers. Its senior partner, Avram "Pete" Adler, was best-known for medical cases. In 1973, while working for a larger firm, he and Stanley Kops had won a landmark $1.75 million verdict against the federal government for approving a polio vaccine that had failed safety tests. Adler also had handled Legionnaire's disease lawsuits in the late 1970s.

When he took the Wade dump case - on behalf of not only McLaughlin but a half-dozen others, including Joan Cherry - Adler was 64, an old hand about to test a new frontier of the law.

Adler began by going after EPA's paperwork on 1 Flower Street. He soon had the building blocks for a case: nearly 100 boxes of documents laying out the history of the Wade dump, the chemical wastes found there, and the 50 companies that had produced them.

To construct a viable lawsuit from the paper jumble, Adler had to show that those poisons could cause the types of illnesses afflicting his clients - a melange of diseases with no clear pattern.

There were McLaughlin's thyroid cancer, Marv Cherry's lung cancer, and the melanoma of Police Detective Richard Jones. But how did they intersect with the crippling vascular ailments of Fire Chief Jim McDonald and firefighter Curt Weigand, or the aplastic anemia of Police Sgt. Robert Lee Walker?

Another complication: Everyone's exposure to the chemicals had varied. Cops who patrolled the dump had had short, but frequent, encounters. Firefighters had faced an hours-long barrage of smoke and fumes, mostly at close range.

Several of Adler's clients, including some with lung cancers, had been smokers for years, further blurring the connection to the Wade fire.

Joe Vandergrift, for example, was a corncob-pipe-smoking supervisor in the Chester Streets Department. He directed a crew that spent a week at the dump during and after the fire, spreading salt, moving drums and clearing debris. He wore no breathing gear and was left nauseous and retching up smoke.

Five years later, at age 68, Vandergrift was out plowing and sanding when he started coughing up blood. He was rushed to Sacred Heart Hospital, where his cancerous left lung was removed.

Though hardly an ideal client, Vandergrift signed on with Adler, who recognized the cruel truth: Each time a Wade veteran got a terrible illness, his chances of winning this case got better.

By that equation, his odds almost doubled in the first half of 1984.

To his client list Adler added two more lung-cancer victims: another streets worker and a former police chief, both ex-smokers in their 50s.

That spring as well, Police Officer Daniel Elder learned that a huge malignant tumor was nearly blocking his large intestine. He had patrolled the dump area for four years before the fire and was assigned there afterward to keep away trespassers. His youth - he was only 34 - made Elder an especially strong addition to the case.

Adler also took on two firefighters whose emphysema hardly seemed unusual. At this point he wasn't being choosy; logic dictated that the more sick men he could parade in front of a jury, the better.

Having gathered a dozen plaintiffs, he filed the lawsuit's first paperwork on Jan. 9, 1985, at the Delaware County Courthouse, in Media. Copies went out to the companies that EPA had identified - and that Adler now was targeting as Wade dump contributors. He followed up with a letter to their lawyers, saying that his clients had developed "cancer and/or kindred ailments as a result of their exposure to the burning chemicals."

The companies closed ranks. Having already paid $2.75 million to EPA for the Wade cleanup, they were not about to ante up again - and turned to a formidable defense team comprising at least 11 of Philadelphia's 15 largest law firms.

"We were pretty much outgunned," said Walter Kyle, a former Adler & Kops lawyer involved early on. "At an initial conference, there must have been at least 75 attorneys on that side."

There would be no quick settlement. And some of Adler's clients were running out of time.

Two months after his daughter's wedding, Moose McLaughlin sat in a wheelchair in Philadelphia, lashing out as lawyers deposed him.

"They badgered him, and he got mad," Judy McLaughlin said. "I remember him saying he told one lawyer, a young whipper-snapper, `You son of a bitch, what do you think I'm doing, faking? Do you think I want to be in this wheelchair?' "

McLaughlin still had plenty of fight left. And he'd need it.

Simple dignities

A month after the deposition, on Sept. 27, 1985, he fell at his home. A bone scan found more cancer, this time in his pelvis, and he started new rounds of chemotherapy and radiation treatments, even agreeing to experimental drugs.

By August 1986, McLaughlin had rallied enough to return to work in his wheelchair. His pals at the Chester firehouse set him up with a desk job, something they called "liaison officer." Mostly he answered phones. Yet the simple dignity of going to work sustained him, and he boasted that one day he'd be back fighting fires.

Each day, Judy arose at 4 a.m. to get Moose bathed and dressed and to the station before heading to her nursing job in Philadelphia. She was determined to keep him pumped up, even when Moose got too full of himself.

One afternoon, when she picked him up, he insisted on driving.

"You can't," she began, "you "

"I'll drive!" he repeated.

Judy held her breath and let him. Although paralyzed from the waist down, Moose managed to lift his foot onto the gas and brake pedals by tugging on his uniform pants.

"The thing was, when he went into the wheelchair, he said it took his manhood away," Judy explained. " Whatever it took to give him his manhood, I did."

Even as McLaughlin held on, other plaintiffs in the Wade lawsuit were slipping away. Firefighter Curt Weigand, who blamed his collapsed veins on the dump fire, died at age 54 of heart failure in January 1986. The next month, lung cancer killed streets worker Eugene Davis at age 59.

One day in early March, firefighter Harry "Bud" Cornish - who had joined the lawsuit with emphysema - came home from a doctor's visit and nudged his wife awake.

"I've got to talk to you," he said.

Lillian Cornish was exhausted, having just worked the midnight cleaning shift at Crozer-Chester Medical Center. "Oh, honey, please let me sleep," she remembered telling him. "We'll talk when I get up."

Then she looked and saw tears.

"What?"

"I've got cancer," he said.

Within a year, Cornish was dead of lung cancer at age 50. On March 2, 1987, he was buried at Lawn Croft Cemetery in Linwood. Moose McLaughlin sat in a wheelchair, apart from the proceedings.

Soon after, Lillian Cornish stopped by Station 82 for a visit and found McLaughlin at his desk.

"He apologized for not getting too close to the grave," she recalled.

Then he asked her to tell him everything about Bud's final year, what he endured toward the end. Two hours later, both were crying.

"I think," she said recently, "that he just wanted to know what it was like to die."

Legal maneuverings

From the start, the Wade dump lawsuit moved glacially through the Delaware County court system. By the summer of 1987, it was stalled, and sinking, in a sea of paperwork.

Much of the wrangling among the parties is an official secret. Ten years ago, a judge sealed the entire courthouse file from public view and put restrictions on what many of those involved ever could say about it.

Enough documents have surfaced elsewhere, however, to give a glimpse of a lawsuit that, for the small band of Wade veterans, would go from merely very difficult to nearly impossible to win.

The case was before Judge Melvin Levy, who, in his decade on the bench, had become known among some criminal lawyers as "Merciless Mel."

A native of Chester, his hometown roots ran deep and wide. In the mid-1970s, when the chemical dumping was in high gear at 1 Flower Street, he was city solicitor for Mayor Jack Nacrelli, who once called Levy his "personal attorney for some 20 years or so."

As a judge, Levy had a reputation for moving civil cases along. When the Wade lawsuit wouldn't budge, he threatened to throw it out.

Then two years old, the case was deadlocked in a fact-finding process that lawyers call "discovery."

To help link his clients' illnesses to the companies' wastes, Adler had demanded batches of corporate records. He hoped to find evidence of their own employees being sickened by on-the-job exposures to those same chemicals.

The corporations refused and persuaded the judge that Adler had to answer their questions first: 3,000 of them, delving into his clients' lifestyles and medical histories. They took the position - common in such cases - that the plaintiffs probably had brought on their diseases with bad habits such as cigarettes; at the very least, they bore some responsibility by working inherently hazardous jobs.

Several months passed before Adler produced the paperwork. But the answers were so vague that Levy erupted at a hearing, warning he would dismiss the case unless Adler promptly filled in the blanks.

Levy then issued a ruling that stunned the plaintiffs. Before the companies would be forced to turn over their records, the judge said, Adler would have to show medical evidence not only that their wastes could have made his clients sick, but in fact had.

This would be no Toms River.

To Adler, Levy had set the cart before the horse. In a brief, the lawyer complained that the companies had persuaded the judge "to permit them to be shielded from providing the necessary information." Levy, he contended, had accepted their claim that the Wade veterans might be trying "to harass [them] into a small, blackmail-type settlement."

Unorthodox as Levy's order might have seemed, rulings like it were becoming more common in toxic tort cases. Fearing that so much complex litigation could overwhelm their courts, judges had begun to weed out cases they deemed weak.

For the Wade plaintiffs, the window that not long before had stood wide open was already closing.

The final vigil

In August 1987, Moose McLaughlin left the Chester firehouse for the last time.

The cancer in his bones and lungs had quickened its march, and another tumor had appeared on his spine.

Homebound, he could not be left alone. But the family needed Judy's paycheck, daughter Patty was still in high school, and Kelly Ann had a toddler son to look after.

To the rescue came their extended family - the firefighters.

"I never would've made it though Moose's sickness without them," Judy said. "They came every day and baby-sat while I went to work."

They came with well-stocked coolers. After Judy would leave, the men would lug them inside, turning the death watch into a frat party. Furious to learn that Moose had been chasing his Dilaudid with beer, Judy called his doctor to vent.

"Judy, is he happy?" she remembered the doctor replying.

"Wouldn't you be?" she retorted.

"Is he content? Is he pain-free?"

"Yeah."

"Then so be it."

More than once she walked in on a houseful of revelers. One evening the living room teemed with City Hall secretaries. "Who are you?" one of them asked when Judy stepped through the door.

Moose, all smiles, had a cockeyed hat on his head and a row of lipstick pecks running up one cheek.

"No pain that day," Judy recalled.

In private, things were different.

"I am bitter," he told a visitor. "I'm a good family man, and I feel something is being taken from me."

In November, pneumonia set in, forcing him back into Crozer-Chester Medical Center. It soon became obvious he was not coming home.

On Sunday, Nov. 29, Moose's beloved Philadelphia Eagles were playing the New England Patriots on TV. Kelly smuggled in a six-pack, knowing her dad liked nothing better than beer and the Birds.

He declined both.

Moose's lungs kept filling, and he was weary of the suctioning needed to clear them. He asked that it be halted, and that he be put on a morphine drip, nothing more.

In doing so, he signaled the end.

Judy was horrified. Even then, she had not come to terms with her husband's mortality.

"I begged him," she said. "I was up on my hands and knees over his chest, and I begged him not to do it."

A nurse pulled her away.

"But you don't understand," Judy recalled telling her in the hallway.

"No, you don't understand," the nurse shot back. "He's going to die. Whether he dies today, whether he dies tomorrow, or he dies next week, he's a man, and he's made his decision. Respect him as a man."

The night of Dec. 1, 1987, Chester firefighters crowded into Moose's hospital room for the final vigil. On one bed lay their captain, fading away in a morphine fog. Judy stretched out across the second bed, beaten.

Moose floated in and out of consciousness. When his temperature spiked above 104, his buddies cooled him with compresses. Led by city Fire Chief Jim McDonald and county Fire Marshal George Lewis, the men formed a line to the bathroom sink, passing damp cloths as a bucket brigade might. That calmed the fever, and he slept.

He awakened just once more, his mind on his 2-year-old grandson.

"Judy, my fire coat and hat are in my locker," he said. "I want my Gregory to have them."

He never spoke again. Just after 7 a.m., Judy left the room to get coffee. She returned to find her brother, who had stayed behind with Moose, waiting in the hallway.

"It's all over," he said.

She stood there looking lost, because she was. In the four years Moose was ill, they never talked of his death, much less his funeral.

"We discussed life as it was, what we had left," she recalled.

Judy drove home to Upland, but told her brother to guard the body. She could not bear the thought of Moose being taken to the morgue.

While careworn firefighters trooped into her kitchen with doughnuts, McDonald sat with her, asking gently about arrangements. He suggested a funeral director in nearby Middletown who was also a volunteer firefighter.

When Norman Shropshire took the call, the name of the deceased - Vincent De.Paul McLaughlin - meant nothing to him. "Then they said `Moose,' and it registered," he said.

The wake was Friday night. Moose lay in an open casket bedecked with flowers. More than 400 people filed past, among them his "A" Platoon pals. "I feel like I lost a brother," said Frank Samsel, who spent nine years under Moose's command.

Judy kept her remarks simple. "He lived with dignity," she said, "and he died with dignity."

The next morning, Dec. 5, after Mass in the same church where he had walked his daughter down the aisle, the long procession dipped into Chester and stopped in front of Station 82. A siren sounded.

Then it was on to Marple, where two trucks lifted their ladders to form a soaring, 70-foot arch at the entrance of SS. Peter and Paul Cemetery. Beneath it passed 35 fire trucks, draped in black sashes.

"Taps" was bugled into the cold wind. The folded casket flag was handed to Judy, a Bible to daughter Kelly, Moose's badge and medals to Patty. Tearful mourners dropped red carnations on the coffin.

To the firefighters who lingered by the grave, the ceremony was familiar. Five years earlier, Moose had laid out the same funeral plan for fellow captain Marvin Cherry.

When Monday came, Capt. Bob Friend was back at the firehouse. A decade had passed since Feb. 2, 1978, the day he spotted a black, smoky column rising high over 1 Flower Street and thought it was only a rubber fire. Now he wished they had just let it burn, he said.

"I'm running out of guys I started with."


Contact Susan Q. Stranahan at 610-313-8027, or at sstranahan@phillynews.com Contact Larry King at 610-313-8111, or lking@phillynews.com









 
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