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A federal judge in Philadelphia has granted preliminary approval of a $2 million partial settlement by Modine Manufacturing Co. in a class action medical monitoring suit brought by residents of a small Northern Illinois town who claim that groundwater contamination has caused a cluster of brain cancer cases. In her 30-page opinion in Gates v. Rohm and Haas, U.S. District Judge Gene E.K. Pratter rejected the argument of the nonsettling defendants, who said it would be unfair to grant preliminary approval of a class settlement before ruling on whether the ongoing claims satisfy the requirements for class certification. Pratter flatly rejected the argument, saying in a footnote that “it is proper for the court to preliminarily certify the settlement classes at this juncture, provided that the grant of preliminary approval is without prejudice to the defenses and positions of the nonsettling defendants as to any issue, including certification of the litigation classes.” In the suit, residents of McCullom Lake Village, a town of about 1,000 in the northeast corner of Illinois, claim that their exposure to “volatile organic compounds” from two nearby factories has put them at greater risk of contracting brain cancer. Named as defendants in the suits are Rohm and Haas Co. and its subsidiary, Morton International Inc., the maker of Morton Salt, and Modine Manufacturing Co., a manufacturer of heating and cooling technology. In addition to the proposed class action in federal court, plaintiffs attorney Aaron J. Freiwald of Layser & Freiwald has also filed 23 separate personal injury suits in the Philadelphia Court of Common Pleas on behalf of residents who now have, or have died from, brain cancer. Freiwald said Modine has also agreed to settlements in all of the state court cases but that the terms are confidential. In the medical monitoring suit, Pratter had ruled in a prior opinion that the Supreme Court of Illinois “is likely to recognize” a claim for medical monitoring. “Given the apparent trend of the federal and appellate courts in Illinois, the cost of diagnostic testing, even if periodic or ongoing, likely is a compensable injury under Illinois law,” Pratter wrote. Defense lawyers had argued that the Supreme Court of Illinois has never recognized a claim for medical monitoring in a case where there is no present physical injury. But Freiwald argued that prior decisions of Illinois’ highest court as well as decisions of the lower Illinois appellate courts gave a strong indication that the state would recognize a medical monitoring claim. The suits allege that over several decades, both the Morton plant and the Modine plant were “dumping” millions of gallons of chemical waste in a lagoon that ultimately contaminated the town’s drinking water. According to the suits, the chemicals dumped in the lagoon included trichloroethylene and dichloroethylene, both of which degrade to a compound known as vinyl chloride, a substance that has allegedly been found to cause cancer. But Rohm and Haas’ lawyer, Dennis R. Suplee of Schnader Harrison Segal & Lewis, said the plaintiffs have no evidence to support two critical elements of their cases. Testing of the town’s wells, Suplee said, has shown that none of them are contaminated, and the scientific evidence does not support the theory that vinyl chloride causes cancer. Under the terms of Modine’s settlement, the class of residents who lived one year or more in McCullom Lake Village between Jan. 1, 1968, and Dec. 31, 2002, and have not yet had brain cancer detected or have not yet filed personal injury claims because of alleged exposure to chlorinated solvents will receive $1.4 million, according to court papers. The settlement will allow for reimbursement of up to $1,400 per class member to obtain a magnetic resonance imaging scan, or MRI, to detect brain cancer. The class of people who owned property in the locality between April 25, 2006, and Jan. 18, 2008, will receive $100,000 for their property value devaluation claim. Another $500,000 will go toward attorney fees and costs of administering the settlement. Freiwald said that Modine is a minor player in the alleged environmental contamination and that Philadelphia-centered Rohm and Haas and its subsidiary, Morton International, have contributed the most to the alleged brain cancer cluster. “Although there are two defendants we don’t regard them as equal,” Freiwald said. Modine was “a relatively small contributor” to the contamination, he claimed, while Rohm and Haas “is a very significant contributor.” Attorney Ralph G. Wellington of Schnader Harrison Segal & Lewis, another member of the Rohm and Haas defense team, said the company intends to oppose class certification and has no intention to settle. “While we respect Modine’s business decision to try to get these cases behind it, we are carefully reviewing the impact the court’s approval of the settlement classes would have on the remaining defendant, Rohm and Haas,” Wellington said. Pratter, in her decision to grant preliminary approval of the Modine settlement, concluded that the proposed settlement classes meet all the requirements of Rule 23 of the Federal Rules of Civil Procedure and that the $2 million settlement is “within the range of reasonableness.” “There is nothing to indicate that the proposed settlement is not the result of good faith, arms-length negotiations between adversaries,” Pratter wrote. “In the nearly two years of litigation since this case was commenced in April 2006, all counsel have demonstrated vigorous and independent lawyering in all respects, and the court has no reason to doubt that the same is true with respect to the proposed settlement,” Pratter wrote. Pratter noted that the settlement negotiations included two full days of mediation before former U.S. Magistrate Judge Diane Welsh, now a mediator with JAMS. And although the parties have not officially conducted any discovery on the merits, Pratter found that the ongoing discovery related to class certification issues and in the state court cases was extensive enough to give lawyers on both sides a good sense of the case. “The parties have conducted sufficient discovery to estimate the merit and value of the plaintiffs’ case against Modine and reach a reasonable settlement,” Pratter wrote. (Copies of the 30-page opinion in Gates v. Rohm and Haas, PICS No. 08-0280, are available from The Legal Intelligencer. Please refer to page 14 for ordering information.)

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