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May 6, 2000

The settlement: Putting a price on lives cut short

By Susan Q. Stranahan
and Larry King
INQUIRER STAFF WRITERS

Anne Lewis had no heart to revisit her husband's ugly death.

Once a cop in Chester, Jack Lewis was a college-educated man who wrote poetry and had the scores, though not the money, to go to law school. But after Lewis found that he had a wildly growing brain cancer in 1985 - and insisted on surgery - his neurologist warned: "When this is over, you won't even know what one plus one is."

The prognosis was accurate. By the time he died a year later at age 42, he was incompetent. "It wasn't a gentle cancer, believe me," Anne Lewis recalled.

She stayed in Florida, where the couple had moved in 1980. Before that, Jack had worked the streets of Chester for eight years - including the night the Wade dump burned, and several days after.

Whenever he returned from his patrols around the lot, "he reeked of this chemical odor," she recalled. Yet he "never was offered a mask or gloves or special equipment; no one mentioned that it was dangerous or unhealthy."

When word of his illness got back to Pennsylvania, lawyers asked him to join the lawsuit being filed in Delaware County Court by the Wade fire veterans. He was interested - until the cancer stole his mind.

Afterward, "I took the calls," Anne Lewis said. "I told them, `I can't deal with this; I can only deal with taking care of my husband.' "

He had been dead a year when the Adler & Kops law firm contacted her again.

Reluctantly, she agreed to a conference.

"I didn't want to go through" a court fight, she said. "I wanted to get on with my life."

As Pete Adler struggled to keep the case in play, his cast of assistants kept changing. By mid-1987, he was breaking in number three.

Diane Fenner was 34, a bright, engaging woman with degrees from Barnard, Columbia and the University of Pennsylvania's law school - but no experience bringing complex lawsuits. The Wade dump would be her first big case, one that would become all the more onerous as Adler himself developed heart problems and cancer.

As the Wade litigation foundered, the client list grew. Six more dead or dying men would be added in three new lawsuits.

One was John Renninger, a mail carrier since 1970 whose daily route had taken him past the Wade dump. He was 41 when he died of lung cancer in August 1983.

Another was Police Officer Larry Fiorelli, who had stood on the smoke-shrouded Commodore Barry Bridge during the fire and returned for at least three eight-hour shifts. He was diagnosed with leukemia in 1985, at 38, and died a year later.

Jack Lewis, not quite three years older, had died the month before Fiorelli. Knowing his value to the case, Fenner flew to Florida to win over his widow.

At Lewis' house, Fenner pulled out a portfolio. In it were the names of the other men who had fallen ill since the Wade fire.

"It was pretty difficult going through it, because I grew up with them and went to school with them," Lewis said.

By adding her husband's name to the case, Fenner told her, she would be helping everyone. Lewis relented.

Fenner was collecting not only clients but also many of the documents that Judge Melvin Levy had ordered. The medical records alone filled nearly 6,000 pages. Yet none of that meant much without the right expert witnesses: medical specialists who could, convincingly, draw a line between the Wade veterans' grab bag of diseases and the dump's burning chemicals.

Enter Bertram W. Carnow, a Philadelphia-born specialist in occupational and environmental health.

Carnow, who ran a Chicago consulting business, had been a key witness in several major toxic tort cases. His testimony had figured in settlements exceeding $30 million for residents of dioxin-drenched Times Beach, Mo. He also had helped win a $16 million verdict - later reversed - for 65 people claiming health problems from dioxin spilled in a Missouri train derailment.

The Wade case was a lot knottier. No single chemical could be blamed for all of the illnesses. Scores of toxins had mingled and burned in the dump, under conditions that no laboratory could hope to duplicate.

Carnow's team studied the histories of 14 cancer-stricken plaintiffs. His report blamed every tumor on the Wade poisons.

Exposure to specific carcinogens such as benzene could have triggered a few illnesses, he wrote. But he attributed most to a chemically caused weakening of the men's immune systems, leaving them vulnerable to diseases they otherwise might have fought off, or at least contracted later in life. That was his explanation for both the variety and the virulence of the diseases.

"[T]he finding of 14 cancers with eight deaths in a small and young population is a remarkable event and can only be explained on the basis of a common exposure," namely, the dump, he concluded.

A similar thesis came from Robert Rutman, a retired biochemist and cancer researcher at the University of Pennsylvania.

Rutman contended that the dump had immersed the men in two kinds of chemicals: those that cause cancer in healthy cells, and those that accelerate growth of dormant cancer cells. That, he said, was why some cancers appeared so soon after the fire.

"When we literally bathe these cells for hours in a soup of carcinogenic, mutagenic and promotional chemicals," Rutman said recently, "we convert these latent, nascent cells into ferocious little beasts."

The companies' lawyers came back with their own lineup of experts and, in court papers, derided the conclusions of Carnow and Rutman as "wildly speculative," lacking any scientific grounds.

The plaintiffs' lawyers, as the defense team pointed out, had not produced all that Levy had ordered. They had not determined which chemicals each man had encountered at Wade, or linked specific toxins to each individual's illness.

Nor had Carnow and Rutman come up with any studies showing that human cancers could be caused by one encounter with any chemical. They had offered only "the novel proposition that a single exposure to an unidentified combination of potential toxic substances causes cancer," the defense lawyers wrote in a memorandum.

In January 1989, the firms again asked Levy to dismiss the lawsuit.

Three months passed with no ruling. Suddenly, the Wade veterans got an offer - to walk away with at least something.

Setting a price

At her home in Florida, Anne Lewis got a phone call from the Adler & Kops firm that left her cold. After some pleasantries, the caller got to the point: How much money would it take for her to settle?

"How do you put a value on that?" she remembered thinking.

In Philadelphia, firefighter Curt Weigand's widow, Joan, had a similar exchange in the law offices. Adler's partner, Stanley Kops, "took me into a room and asked me what I thought my husband's life was worth," she recalled. "I told them a million dollars. They laughed in my face."

Which told her to expect nothing near that sum from the chemical generators. (Kops declined a request for an interview.)

The companies were nonetheless eager to shed the case. One defense lawyer wrote to her colleagues: "There may be several virtues in seeing this litigation end (e.g., avoiding an adverse ruling on the `synergistic soup' theory, as well as avoiding the burdens of discovery and trial testimony)."

At 9 a.m. on April 14, 1989, the companies' lawyers gathered for a settlement conference in front of Judge Levy. Kops, who had stepped into the case as Adler's health problems worsened, was there with his clients' rock-bottom demands.

The meeting ended with all but six companies agreeing on an offer: no more than $100,000 each for the widows; $30,000, tops, for the men still alive. If even one refused, the deal would be off.

That day, Kops sent confidential letters to individual plaintiffs, disclosing the sum he or she had been offered - and noting the judge was leaning on them to accept.

Levy "asked me to convey to each of [you] that he strongly recommends the settlement. & ," Kops wrote. "There is now money on the table, and you know what the chances of success are."

The message seemed clear to Judy McLaughlin.

"You're either going to take this or take nothing," she recalled, adding, "We were not happy."

A single mother with a failing heating system, rotted windows, and Catholic school bills, she settled.

So did Maria Boyle, whose husband, Police Officer Robert Boyle, had died at 51 of colon cancer the year before. While he was alive, "I was living on an income of $28,000," she said, "and then I go down [to] $7,000 a year. & I still have bills to pay."

The settlement, she said, "was like a four-year salary."

Ray Lambert, then a 52-year-old firefighter with emphysema, was offered the least . $2,000. He accepted, he said recently, so the others wouldn't lose out: "We weren't only firefighters, we were friends."

Within a month, all had signed on.

As part of the agreement, the chemical companies insisted on certain conditions. The plaintiffs were not allowed to talk, even to each other, about the money they got, or the "underlying causes" of the settlement. That was not unusual, but a second condition was: the sealing of the entire case file from public view.

It would take the lawyers four months to nail the details - and one year more before the remaining companies settled, pushing the top payouts to $103,000. The deal cost the companies a total of about $1.5 million, including Adler & Kops' $366,000 fee.

But before any money could pass into the 10 dead men's estates, Judge Levy wanted to see their closest survivors - with one exception, their widows - in private.

"I do not know for what purpose he has requested your presence & ," Diane Fenner wrote in letters summoning them to the courthouse. "[P]lease accept our apologies for having to put you through this ordeal."

On the morning before Halloween, the widows stood nervously in the hall, waiting for the judge to call them in, one by one.


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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