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May 7, 2000

'Who's next?' The question that lingers 22 years after fire

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By Susan Q. Stranahan
and Larry King
INQUIRER STAFF WRITERS

Lillian Cornish could not stop trembling.

Maria Boyle felt cowed and alone.

Judy McLaughlin was upset, yet relieved to have it over with.

It had taken much of the morning of Oct. 30, 1989, for Judge Melvin Levy to have his individual audiences with the nine widows in the Wade dump litigation. Before, the women hadn't known what to expect. After, most didn't know what to think.

They were not the only plaintiffs to sue the four dozen companies whose chemical wastes had burned at Wade. A total of 18 dead or sick men were represented. But with a settlement deal cut and awaiting his signature, the judge had summoned the widows.

They had been called, one by one, into an anteroom at the Delaware County Courthouse, where Levy sat at a desk. He signed off on each of their settlements and ordered the documents sealed.

He also had a personal reminder for the widows: The payout came with a price - silence. They could never say a word, not even to each other, about the settlement terms. Those who disregarded that condition stood to lose what they would get - for some, as much as $103,000.

The judge was sociable, Maria Boyle recalled, but she got the point: "You either agreed . . . or tough luck on you. That's kind of how it made you feel."

By lunchtime, a half-dozen of the women were huddled in the cafeteria - talking.

In the middle sat one of their lawyers, Diane Fenner, who had waited outside the meeting room. Questions flew. Anne Lewis, made to fly up from her Florida home, remembers asking: Why the secrecy?

Fenner could only state the obvious: The chemical companies wanted no more lawsuits.

With the plaintiffs gagged and the court file sealed, no one else could benefit from the legal and medical research assembled over four years by Adler & Kops - let alone the stories of their clients.

That troubled Lewis. "Isn't it possible," she recalled asking, "for a lot more people to become sick?"

Outside the circle of plaintiffs, at least seven firefighters, paramedics and police already had their cancer diagnosed. More than a dozen others would find out, too, in the next decade.

In August 1990, Levy formally sealed the case file as part of a settlement that, he wrote in his order, "benefits the public good." The companies, he further noted, had shown that "disclosure of certain documents [in the file] could result in a clearly defined and serious injury to them."

In a letter to his cocounsel in the case, a defense lawyer pointed out that the companies' aim was "total peace." And they got it.

There would be no more Wade lawsuits.

Levy retired from the county bench in 1992. The Inquirer made several unsuccessful attempts to discuss the case with him over the last six months.

Each time, he said he wanted to refresh his recollection of the case first.

"I'm trying to obtain access to the court file," he said in March. "The court files have been marked closed, and it may take me a little while to obtain permission to have access to them. As soon as I do, I'll get back to you."

In a brief phone call Friday, he said he had not yet gotten the records.

"No longer friends"

The litigation was over, but in the firehouses of Chester in 1989, hard feelings were roiling.

Early in the case against the chemical companies, a local newspaper carried a story about the lawsuit. It was no secret. But neither was it a class action, open to all who had fought at Wade. Those who had fallen sick since, or were living in fear that they would, believed they had been cut out.

Resentment ran especially high among the volunteers, who had felt estranged ever since the city started shifting to a paid force in the 1970s.

By the time the case began in 1985, three vollies who had been at the Wade blaze were dead of cancer. That they were not included did not surprise their survivors.

"Politics is politics," said Mary Swanson, whose husband, Bernie, died nearly two years after the fire. Chester firefighters "all knew my husband, all knew he was at the Wade fire site, and all knew he had passed away with [lung] cancer."

Even in the chummy ranks of the paid men, the case became a wedge.

"A lot of people who were friends before the lawsuit were no longer friends," said Ron Stevens, a Wade veteran uninvolved in the litigation - but who, in 1993, would have a cancerous kidney removed.

He recalled Fire Chief Jim McDonald, one of the plaintiffs, trying to keep the healthy from nosing around the Wade case. On their own, Stevens and firefighter Mickey Abbott had gone to Harrisburg and Norristown to make copies of state files on the dump for their union. When the chief found out, they said, he dressed them down.

"He said, 'You keep this up, you're going to lose your jobs,' " Abbott recalled. "I said, 'Chief, you do what you need to. I'll see you in court.' After that, he never bothered me."

The rift created by the lawsuit opened into a chasm with the settlement. Those on the outside feared that, by sealing the case file and so many lips, the judge had in effect sealed the courthouse door to anyone not yet ill.

Still haunting them was a warning from the National Institute for Occupational Safety and Health, which in 1983 had surveyed the Wade firefighters' growing medical problems - and stopped short of blaming the fire. NIOSH's report pointed out, however, that chemically induced cancers could take 20 years or more to appear.

By agreeing to a total cloaking of the case, those who settled "cut everybody else's throat," Abbott said. "I don't begrudge those women who lost their husbands anything, [but] what if I come up with cancer? Excuse my language, but I'm screwed."

In an ironic turn, so were two plaintiffs.

Chief McDonald had joined the lawsuit with collapsed veins in his legs, which he blamed on toxins at the Wade dump. He was an overweight, high-cholesterol diabetic and ex-smoker with a family history of vascular disease. The year the suit was filed, he had a heart attack.

He settled for a relatively modest $16,000. Within a few days of agreeing to the deal, he had an X-ray that showed a tumor in his right lung. It was cancer. He died less than two years later, at 60.

Firefighter Richard McGinn got even less money from the lawsuit. The veteran union leader - decorated for pulling trapped citizens from burning buildings - received $10,800 for the precancerous lesions across his upper body.

Within three years of the settlement, doctors diagnosed McGinn's colon and liver cancer. He died in 1992 at age 57.

There was no going back to the table. By signing off on the settlement, the men had signed away their rights, and their survivors' rights, to go after any more money.

Checking the prospects

As a boy, Michael Joyce spent summer vacations playing in the waves along Cape May. On an oddly balmy Thursday in February 1993, at age 46, he was back.

His wife, Mary, and their two children, 16 and 10, climbed with him over the rocks to the tip of a jetty, along with his father, brother, nieces, cousins and in-laws. From there, they spread his ashes on the water.

A week earlier, Joyce had died from melanoma, the deadliest form of skin cancer. Half of his cremains already had been cast into the Pacific off Oregon, where the Chester police officer had taken his family to start fresh a few years after the Wade fire.

Red-haired, muscled, an ex-Marine sergeant, Joyce had patrolled the blazing dump and was sent back many times afterward to check on the sodden grounds. The stench of hundreds of thousands of gallons of commingled chemicals nauseated him. And the lack of a fence to keep out children and scavengers worried him - so much so that he appended a personal note to one of his incident reports, fretting about "injury and harm to the citizens" of Chester.

Laid off during city belt-tightening in 1981, Joyce found work as a cop in the Portland area. There, six years later, a dermatologist removed a small spot of skin cancer from his nose. Joyce also asked him to look at a lesion above his right ankle. Look was all the doctor did.

By the spring of 1990, there was swelling on the right side of his groin. Joyce, who weight-trained, ran or swam almost daily, appeared as fit as ever. But he was as good as dead. The cancer was in his lymph nodes, on its way to his lungs and brain. The blotch on his leg, by then black-brown and quick to bleed, was the apparent origin.

Intelligent, well-read, Joyce knew the odds - and fought them hard for three years. But as cancer overtook him, his wife recalled, "every day was a slide downhill."

Chemotherapy stole his appetite and his good humor. Refusing to be seen in a wheelchair, he stopped the treatments when he could no longer walk. He resisted home nursing care as a measure for "goners."

At night, Mary Joyce lay awake on a cot next to his bed, listening to him struggle for breath. Still working by day, she would send someone to check on him before the children got home from school, lest they "find him helpless, or worse."

On Feb. 1, 1993, the kids were playing basketball in the driveway when the ambulance arrived. Their dad lasted long enough to tell them goodbye from his hospital bed. That night - almost 15 years to the day after the Wade fire - he died.

Mary Joyce came East for a memorial Mass in Chester and the spreading of his ashes. She also made a stop at the office of Jimmy McHugh, a scrappy Media lawyer.

Chester locals trusted McHugh, who for years had a practice around the corner from their City Hall. He was no stranger to the Wade dump lawsuit, having referred several plaintiffs to the Adler & Kops firm a decade earlier. And he still represented the Chester Fraternal Order of Police.

Several cops from the old days insisted that Mary Joyce see McHugh, though until then she had given little thought to suing. "I don't believe I had time to think much about the Wade dump's role in Michael's death," she recalled.

McHugh listened to her story and said he would look into her prospects in court. A few weeks later, when advised the case was not worth pursuing, she met the news with a matter-of-fact shrug.

Ginny Pilkington's hopes had been higher. Even before her husband Tom, a former police detective, died of Lou Gehrig's disease in August 1993 at age 49, she had been mulling a lawsuit. She knew that he and city health officer David Chakrabarty had walked side-by-side around the burning Wade dump - and that Chakrabarty, at 57, was dying of the same rare illness.

She, too, visited McHugh. "He said he could not help me because the case was over," she recalled. "I really didn't understand at the time what that was all about."

Hoping to find out, she called the widow of Fire Chief McDonald. When she asked Connie McDonald to talk about the case, Ginny Pilkington said her old friend replied, "I really can't; that was part of my deal. . . . If I do anything, what little bit they gave me, they'll take it back."

Other widows tried other lawyers. All met the same dead end.

Betty Francis found a lawyer who went so far as to gather the medical records of her husband, firefighter John "Junior" Francis, who had died in 1992 of colon cancer at 69. Then, she said, he "called and told me that Judge Levy had put a stop on people putting in claims."

Not that Levy, or any other judge, could order such a thing. Yet that became the accepted lore around Chester.

McHugh said recently that he recalled little of his meetings with Mary Joyce and Ginny Pilkington. However, he said, he "would never, ever tell them that you can't bring a case." If he deemed a lawsuit futile, "I would tell people, 'Don't torture yourself. . . . You can't win this.' "

That is how many plaintiffs' lawyers nationwide had come to view toxic tort cases in the 1990s. The litigation was a huge financial risk, and fewer were willing to take it.

In the Wade case, Adler & Kops' expenses had exceeded $140,000, at least half of it spent on expert medical testimony that Levy had never agreed to accept. More and more, judges were dismissing such unorthodox cause-and-effect theories as junk science not worthy of a jury's consideration.

To bring a suit, "I could spend $50,000 contacting experts," McHugh said. "But the chances of that ever getting to a jury would be very remote. . . .

"That's a shame. But that's life."

For widows, another blow

In the decade since Judge Levy sealed the Wade file, it has been opened once - though not at the behest of the Wade veterans, and certainly not for their benefit.

That single peek went to the City of Chester's insurance carrier, on a quest to get its share of the settlement money.

Several plaintiffs had been receiving workers' compensation checks, or soon would be. Under Pennsylvania law, they would have to repay the city's insurer from money they made in the case - a standard practice called subrogation. Otherwise, they were double-dipping.

Two years before the Wade lawsuit was settled, the Pennsylvania Manufacturers' Association Insurance Co. began mailing notices to that effect to Adler & Kops. The first, dated May 28, 1987, got no response. Neither did another sent Feb. 15, 1989.

Not until Dec. 18, 1990, after yet another PMA inquiry, did Stanley Kops reply. "We do not know on what basis PMA is entitled" to any of the settlement money, he wrote.

By then, the court file was locked up, the gag order in place. The insurer had no way of establishing how much it was owed.

The standoff continued until July 1992, when PMA lawyers persuaded Levy to let them see the settlement amounts.

The pursuit was on.

Among the insurer's targets were widows who had gotten workers' comp checks ever since their husbands became disabled.

Modest though the amounts were - on average, $300 a week - the money had added up over the years. By the time PMA came after them, Judy McLaughlin and Lillian Cornish, for example, had collected more than $100,000 each. Repaying the insurer would have taken all their settlement money - much of which they said they already had spent on home repairs, school bills, cars and other necessities.

"That money doesn't go far," Judy McLaughlin said. ". . . Everybody thinks we're loaded. Little do they know."

She and Lillian Cornish say their attorneys never warned them about subrogation. Diane Fenner and Stanley Kops declined to comment for this story, citing Levy's gag order. Partner Pete Adler died during heart surgery in 1994.

Whether the plaintiffs had been forewarned or not, they became the objects of PMA's avid attention.

"Every month we got something, anything to stir it up," Judy McLaughlin said. "They just hassled and hassled and hassled. If it wasn't [letters], it was phone calls, or adjusters leaving cards in the door."

PMA doesn't comment on cases, a spokeswoman said, "to protect the confidentiality and privacy of the injured workers and their families." However, "it really is standard procedure to pursue subrogation."

That effort went on until a year ago, when PMA reached an agreement with the last of the widows. Each gave up her weekly check for a onetime payment - in McLaughlin's case, $60,000, or four years' worth of her husband's death benefits.

Moose McLaughlin had only wanted "to make sure we were taken care of," Judy McLaughlin said recently. "He's probably rolling up in the clouds right now. . . . God help anybody who goes up there now."

"What a way to live"

Rudy Hollis owes his life, such as it is, to Moose McLaughlin.

During the worst of the Wade blaze, the rookie Chester firefighter fell in a pool of chemical muck inside the burning warehouse. As the pull-out order was called, Hollis lay mired, the toxic slop washing over him. It was his captain's powerful hand that yanked him free and pulled him by the collar through the blinding smoke.

Outside, Hollis ripped off his air pack and helmet, gasping. His skin tingled and burned; a dousing from a fire hose didn't help. He was taken to a hospital, treated for skin irritation, and sent home in a bedsheet.

Three years later, Hollis lost his job to budget cuts. Two years after that, when he was 33, his kidneys began to quit.

In 1996, after 13 years of dialysis, he had a kidney transplant. Fellow Wade veteran Cleven Pender had the same surgery the same year but did not survive it.

Hollis did, for better or worse. His medication has made his body balloon; he has trouble walking even short distances and often requires oxygen to breathe.

"I'm alive," he said. "But what a way to live."

Both Hollis and Pender had been in a class of about 15 firefighters, mostly African Americans, hired in 1977 with federal training funds. Hollis was 27, a Navy veteran looking for a chance. "I was young, strong, and I wanted a good job."

He got a good boss, as well: Capt. McLaughlin of "A" platoon.

"He told us we were brothers," Hollis recalled. "And if you go in with your partner, you come out with your partner."

He learned well. During a fire, when the floor collapsed beneath McLaughlin, Hollis tugged his hulking captain to safety. The favor was returned at Wade.

By the time Hollis heard about the lawsuit against the chemical producers, McLaughlin had died, and so had the old firehouse camaraderie.

When he asked Chief McDonald about the litigation, Hollis said, he "wouldn't talk." Hollis appealed to his former comrades for information. "I said, 'Hey, talk to me. We were brothers before. I'm just trying to get what's rightfully mine.' "

He eventually got an answer: The case was closed.

One buddy did stick by him.

At the Wade fire, Clarence Banks was a junior firefighter, just 16. Like Hollis, he was treated at a hospital that night for skin irritation. His clothes, fouled with strangely gummy soot, were taken from him.

In recent years, Banks had cared for Hollis. He ran errands for his ailing friend and checked on him regularly at the McCaffery Village housing project, where he was homebound in a second-floor unit.

Last April, Hollis found a new place to stay, two blocks away. The first-floor apartment made him less dependent on Banks.

That was fortunate. In May, a week after his 38th birthday, Banks had a stroke - triggered by a brain tumor.

The surgeon who removed it said Banks had a good chance of full recovery.

Wheelchair-bound, he lives at Delaware County's Fair Acres Geriatric Center in Lima, undergoing therapy to regain the use of his left side.

A last test of courage

Dave Wojs was almost fearless.

In 1972, at age 18, he became a Chester firefighter, under the wing of Moose McLaughlin. In the next seven years, his bravery earned him a wall of commendations, including one for crawling through a burning house to rescue a comatose infant.

At the Wade fire, with barrels exploding all around, he led a team atop the blazing warehouse to rip open a ventilation hole for his buddies inside. Like many of the men, he wore no air pack. The acrid smoke caused a powerful burning sensation in his trachea and lungs but didn't stop him.

A year later, Wojs quit the force after he was passed over for promotion. Haunted by the dumping at Wade, he began a career in environmental safety, and eventually built his own consulting firm in Pennsville, N.J.

One more test of courage, however, was still ahead.

In late 1994, Wojs developed asthma. He was hospitalized several times with respiratory problems. There were other, seemingly unrelated ailments, from numbness in his hands to a spinal infection.

His doctors could not find a cause. But Wojs was convinced: He had lupus.

Though difficult to diagnose, the autoimmune disease has certain stock symptoms. Wojs figured he had six out of nine.

"He told me he was dying inside," his wife, Diane, recalled, "and there was nothing anyone could do."

One doctor told Wojs he was a hypochondriac, obsessed with the Wade fire. His wife remembered him replying, "'Well, if all your friends were dying like flies, you'd be worried, too.' "

In fact, as early as 1984, after the foreboding NIOSH survey of the Wade veterans, he had been urging his former colleagues to get complete physicals. There would then be a record should they someday fall ill. And to Wojs' growing anguish, many did, and began dying.

No death, however, was as devastating to him as McLaughlin's. He watched as cancer reduced his beloved friend to a shadow, and robbed Judy McLaughlin and their two daughters of the man who loved them most. The teenage Patty often turned to Wojs, a father of three, to unburden herself.

"He didn't want to die like Moose did," Diane Wojs said. "It's a terrible thing hanging over your head."

On the evening of Sept. 3, 1997, Wojs walked out of his two-story Pennsville colonial, past the painting of Moose, radio clasped to his face, that hung by the front door. He told his wife he'd be home soon.

Around midnight, the police called. David Wojs, 43, had shot and killed himself.

Among her husband's papers, Diane Wojs found detailed instructions for his funeral, including the suit and shirt he should wear and how his hair should be cut.

There also was a loose-leaf notebook in which Wojs had outlined a book he intended to write. The inscription read: "Dedicated to the memory of Vincent McLaughlin who died 12/87 a victim of hazardous waste disposal." In the movie, he noted, Moose should be played by John Goodman.

Wojs left something else for his wife: his torch. But she is at a loss how to carry it.

He once told her, she said, " 'If anything happens to me, do something about it.'

"But what can I do if you can't prove what caused this?"

A new day in court?

Chester fireman Larry Platt left for the Marines in 1982, four years after fighting the Wade inferno.

No matter where he was stationed, stories of his firehouse buddies falling ill and dying reached him. So did gripes about the lawsuit and its secrecy.

One day in Hawaii, on his daily run through the lush terrain, he broached the subject to his jogging partner, a lawyer. He was just curious: Could anyone else sue?

The lawyer doubted it. He ticked off the same obstacles - the cost, the long odds - that had discouraged the widows.

Platt let the matter drop. Then, in early 1997, when he was 41, doctors found spots on his lungs.

The quarter-inch lesions might be a precursor to cancer, or simply scar tissue from his firefighting days. The only way to find out was a biopsy, which he declined.

"I have an aversion to metal entering or passing through my body," explained Platt, now a lieutenant colonel in Quantico, Va. He chose regular CAT scans instead.

Platt is among nearly 200 surviving Wade veterans. Those who are healthy should watch for signs of trouble, experts say.

"I'd like to tell people not to worry, but I think the risk may still very well be there," said Dr. James Melius, an epidemiologist and adviser to the International Association of Fire Fighters.

For instance, in the three years since Platt's lung spots appeared, at least five other Wade veterans have had tumors diagnosed - most malignant, two fatal.

Going to court may still be an option for those whose illnesses were recently diagnosed. Pennsylvania law gives a person two years from the time an injury is discovered to sue for damages.

For men who fell ill years ago, arguments could be made to extend the two-year statute of limitations. Grounds might include Judge Levy's sealing of the Delaware County lawsuit, lawyers say.

Sealed files can create an impression "that other people didn't get full opportunity to avail themselves of legal remedies," said Dianne M. Nast, a Lancaster lawyer who has successfully represented victims in toxic tort and product liability cases.

Martin Greitzer, whose Philadelphia law firm has filed many toxic tort suits, agrees. If a victim is asked why an injury claim wasn't filed earlier, Greitzer said, "The answer is: 'No one knew.' "

Sealed files may also contain documents that cannot be found elsewhere, as some Chester firefighters have suggested.

"Now, when the union goes to look for its files [on the fire], they aren't there," said Mickey Abbott, the onetime firefighter who helped assemble the documents. "I know where they are, because [the plaintiffs] used them for the court case."

Still, the fight to get into court is wasted if a case can't be won - and toxic tort cases are as difficult now as a decade ago.

A more promising route, lawyers say, would be for the Wade veterans to sue for medical monitoring.

In such cases, people who suspect that past exposures to harmful chemicals might one day make them sick ask courts to order the manufacturers to pay for health screenings. Annual tests, according to Greitzer, cost from $500 to $1,000 per person.

While medical-monitoring claims are fairly new legal turf, Pennsylvania's courts have emerged at the national forefront. In recent years, the state Supreme Court has recognized claims for monitoring by people exposed to asbestos, PCBs and, in a continuing York County case, toxic soccer fields.

That option "affords toxic-tort victims, for whom other sorts of recovery might prove difficult, immediate compensation for medical monitoring," the court wrote in a 1997 opinion.

It could also address the most common affliction among the Wade fire veterans: uncertainty. In Chester's firehouses, squad cars and rescue vans, in kitchens and wedding halls and funeral homes, the question is, "Who's next?"

Joe Cliffe was a rookie the day he raced to 1 Flower Street. He is now the city's fire commissioner - and a worried man.

"Those of us who are still alive," Cliffe said, "wonder every day what tomorrow will bring."

A familiar face

One Friday morning last August, Bill Richard exited I-95 and headed to his job at Crozer-Chester Medical Center.

In the years since he worked the Wade dump fire as a young paramedic, his hair turned gray. An injured knee was hobbling him. But at 48, the father of three felt blessed to be around at all.

In 1980, doctors diagnosed Richard's Hodgkin's disease, shattering his dream of running Crozer's emergency squad.

The disease eventually went into remission. Now, he believed he had it licked. He had returned to his old job. And he had let go of his bitterness over what had happened long ago on Flower Street.

Turning a corner, he saw an older man hawking the Delaware County Daily Times. This shabby vendor was fairly new. When Richard stopped to buy a paper, the man eyed his Crozer uniform.

"Do you work for the hospital?" he asked.

"I sure do," Richard replied.

"I want to introduce myself," the vendor announced, and said he'd been "in the newspapers a lot - about the Wade dump."

Richard's jaw dropped. What could he say to this man?

He paid for the paper, thanked Melvin Wade, and drove on.


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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