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For Ruth Mims, the road to a $40 million settlement involving nearly 1,600 plaintiffs and one of the United States’ largest chemical companies began with wandering hogs and a quart of corn liquor. Shortly before Christmas in 1970, Mims, who lived in west Anniston, Ala., near a Monsanto Co. chemical plant, got a call from two of the company’s employees. Your hogs are grazing on our land, they told her, and you’ll have to remove them immediately. Before Mims could corral the wayward hogs, the Monsanto representatives called back, offering to buy them for $25 a head. “And, if you can believe this, in a poor black community, a quart of corn liquor,” says Ralph I. Knowles Jr., a partner at Atlanta’s Doffermyre Shields Canfield Knowles & Devine. Knowles, one of Mims’ lawyers, says his client sold her hogs to Monsanto, but the company didn’t tell her why it was so eager to buy them. Earlier in December 1970, he says, a hog — no one knows who owned it — was found dead on Monsanto land. Its body was sent to company headquarters in St. Louis for analysis and it was found to contain PCBs. PCBs, or polychlorinated biphenyls, are chemicals used for insulation and fire prevention in electrical equipment. Some studies have shown them to cause a variety of ills, including liver damage, hypertension, cancer, and reproductive and developmental defects. The U.S. government banned PCB production in 1979 because of health concerns. Monsanto, which manufactured PCBs near Mims’ home in Anniston between 1935 and 1971, had dumped them legally in local waterways for years. The chemical division of Monsanto that had produced the PCBs was spun off and named Solutia Inc. in 1997. When Monsanto bought Mims’ hogs, it didn’t tell her or others in the area about the PCBs. So Mims and her neighbors stayed in their homes and continued to grow vegetables and graze animals they used for food near Monsanto land for another 25 years before they learned of the dangers from government environmental agencies. That knowledge led to litigation, and by 1996, Mims was one of 1,596 plaintiffs suing the company for damages associated with PCB contamination. The case, Owens v. Monsanto, CV96-J-0440-E (U.S. Dist. Ct. N.D. Ala. settled April 25, 2001), settled for $40 million. The case involved more than 20 plaintiffs’ and defense counsel, six of them from Atlanta. It took five years to bring to resolution and marked the beginning of the end for a longstanding, close-knit African-American community, as residents sold their homes to Monsanto and moved away from the contaminated area. Though Monsanto agreed to pay $40 million to resolve the case, it didn’t admit liability. And with attorneys’ fees and expenses, plus other allocations from the settlement money to start a charitable foundation and help residents move, the average plaintiffs’ share is $12,000. As in many legal cases, even the winners lose something. And as in all legal cases, there are differences of opinion. THE DEFENSE PCBs did not harm the Anniston plaintiffs, says Thomas M. Bistline, the assistant general counsel of Solutia in St. Louis. None of the Owens plaintiffs had a cancer claim, he points out. Some had respiratory difficulties, arthritis, high blood pressure, problems such as attention deficit disorder and hyperactivity. Those ills, he says, are common in the general population and not necessarily attributable to PCBs. “The most heavily exposed populations are the electrical workers that used PCBs every day,” says Adam K. Peck, a lawyer with Lightfoot, Franklin & White in Birmingham, Ala., who argued the case for Monsanto. Studies show those workers have no chronic health problems other than a skin condition, he says. The Owens plaintiffs, he adds, had much less exposure than electrical workers. Plaintiffs’ lawyers Knowles and his partner Robert E. Shields say PCBs did injure their clients, and that Monsanto knew the dangers in the 1930s. For example, Shields says, one 9-year-old plaintiff suffered from hyperactivity and significant cognitive impairment and had an IQ that bordered on mental retardation. Studies from the United States, Taiwan and Europe, he says, supported the plaintiffs’ contention that these problems were caused by PCBs. Another plaintiffs’ attorney on the case, Laura J. Ruth of Mithoff & Jacks in Austin, Texas, points out that the contamination occurred in a poor, black community. It’s a case of environmental racism, she says. Whoever is right, Monsanto has spent a lot of money on PCB-related matters. The company already has settled another Anniston area PCB case for $43.7 million. It settled for $2.5 million with one local church and paid to move and rebuild another. It has bought residents’ land located near its plant. And it has spent more than $40 million to control PCB exposure in Anniston. With the Owens settlement, that’s more than $125 million. But, adds Bistline, “We have not admitted liability.” What is undisputed is that hundreds of west Anniston residents lost their homes and their community. FLOODGATES OPEN The beginning of the end, and the genesis of the Owens case, came when a rainstorm hit Anniston in 1995, according to Law Professor Grover G. Hankins of the Thurgood Marshall School of Law at Texas Southern University in Houston. Hankins, who teaches environmental law, filed the case initially and worked on it through settlement. He says the storm flooded the area and washed landfill and animals into the west Anniston neighborhood. When the Alabama Department of Environmental Management ran soil tests, it found PCBs, he says. The Environmental Protection Agency got involved, and Monsanto was told to start cleaning up the area. That’s when one of the residents who eventually became a plaintiff and a leader in the suit, Cassandra F. Roberts, got involved. Roberts, a juvenile probation officer in Anniston, grew up in a house next to the Monsanto plant. She says that in October 1995, Monsanto called a community meeting at a local church. Over cookies and soda, company representatives told residents that they’d found a small amount of PCBs in the area and offered to buy nearby land and houses. Roberts was concerned, because her mother lived near the plant and owned two rental houses there. Roberts herself owned several vacant lots. But when she asked a representative about the amount of PCBs, “he wouldn’t tell me,” she says. Another Monsanto representative joined the conversation midstream, and recited the address of land that Roberts’ family owned. ” ‘That property that floods?’ ” Roberts recalls him asking. ” ‘That’s loaded.’ “ Soon after the meeting, however, many residents were selling their land to Monsanto for little or nothing, she says. Residents’ letters to legislators in Washington were forwarded to the Southern Organizing Committee, a grassroots action group based in Atlanta. The group came to Anniston and showed the community how to organize and set up a board of trustees. Roberts eventually became the board’s president. That’s how she met Hankins, who had been contacted by the Southern Organizing Committee. He began by meeting with Monsanto and helping residents get more money when they sold their land. Roberts says, for example, that Monsanto offered $5,000 for one parcel she owned. Thanks to Hankins, the company eventually paid $12,000. SCANNING THE SPECTRUM When Monsanto wouldn’t settle, Hankins says, he filed suit in 1996. The Jacks & Mithoff firm got involved later, and name partner Tommy Jacks, who knew Knowles from breast implant litigation, called in Doffermyre Shields in 1997. Though the case had nearly 1,600 individual plaintiffs, it wasn’t a class action. It was, instead, nine cases aggregated into what Shields calls a “bellwether trial.” The idea, as he explains it, was to try representative cases — from those with the best facts to those with the worst — and get individual jury verdicts that wouldn’t bind the rest of the plaintiffs, but would show the spectrum of likely outcomes. Alternatively, the lawyers were authorized to negotiate a settlement for the entire plaintiff group. With a trial date set for January, the case went to mediation in 2000. Peck, the Monsanto lawyer with Lightfoot Franklin, says the parties had agreed to consider a mediated settlement. To show good faith and that it wasn’t engaged in delaying tactics, he says, Solutia agreed to put $2.66 million in escrow. Once the mediator proposed a settlement, both sides had to accept or reject it by a drop-dead date. If Solutia rejected it, they’d lose the money. The mediator proposed $40 million — the exact amount the case ended up settling for four months later — around January 5. The plaintiffs said yes, but Solutia said no, forfeiting the $2.66 million to be split among the plaintiffs. Peck says the chemical company’s board of directors decided not to settle then because they’d have to pay too much money up front. So the plaintiffs’ lawyers geared up for trial, and it wasn’t cheap. Shields says they deposed 40 witnesses between February and April in locales around the country. Expert witnesses went on the clock to prepare for trial and one, says Shields, reviewed more than a million pages of Monsanto documents dating back some 50 years. The tab: $200,000. The plaintiffs’ lawyers rented an entire floor of the Embassy Suites Hotel in Birmingham for a month as their command center. Knowles estimates that out-of-pocket expenses for the two months leading up to the trial, and the three-week trial itself, topped $1 million. Edward M. Newsom, a partner at the Atlanta office of Smith Helms Mulliss & Moore, also represented Monsanto and Solutia. He says this was a tough case for the defense, in part because there were hundreds of plaintiffs who didn’t have current health problems, but jurors would never see them. “It is very difficult to prove the negative,” he says. In the end, the company decided not to attempt to prove the negative. After three weeks in trial, Northern District of Alabama Judge Inge Johnson urged the parties to settle. The lawyers met on the day before Easter. The day after Easter, they agreed to settle for $40 million. Though Monsanto ultimately settled the case for the same amount it rejected four months earlier, Peck says the company took the second settlement because its terms were different. Monsanto would pay less money up front, and extended over a longer period of time. So is Monsanto coming out ahead? “I’m not an economist,” says Peck. Before the settlement was official, however, the 1,596 plaintiffs had to vote to approve it. About 700 sent proxies. On April 21, another 500 to 600 plaintiffs met at the Bethel Missionary Baptist Church in Anniston — a church, ironically, that once stood on PCB-affected land and had been rebuilt on safe land, all on Monsanto’s dime. The meeting had the feel of an old-time revival, say Shields and Knowles. “People are bringing in chairs and hugging each other,” recalls Ruth. “It’s like old home week.” Discussions lasted two and a half hours and ended with a unanimous vote to take the $40 million settlement. Knowles and Shields say the plaintiffs’ lawyers will get a 40 percent contingency fee, or $16 million. They’re not taking any fees from the additional $2.66 million Monsanto paid during the settlement negotiations. About 14 lawyers in all worked on the plaintiffs’ case. If the money were divided equally among them, each would get $11 million. By contrast, the plaintiffs’ average take is $12,000. Knowles won’t discuss what individual lawyers will get, but says the attorney-client money differential is common in large cases. “You can look at any of those cases and suggest the lawyers got paid more than they should have,” he says. The contingency system has to work that way so that people of modest means can litigate, he adds, noting that his firm spent $2.5 million out-of-pocket without a guaranteed payback. To these plaintiffs, Knowles and Shields say, the settlement is a lot of money, and can be used to help send their children to college or fulfill other long-held dreams and needs. Plaintiff Roberts says that when she first got involved in the case, she never thought about money. She just thought about her mother and all the other elderly people in the neighborhood and how they’d be affected. That’s part of what makes the settlement acceptable to her, even though she thinks the plaintiffs’ share isn’t enough. “I think they could have gotten us more. I would have fought for more if it was just me,” she says. “But there’s so many other people involved besides just me.” Roberts’ mother is in her 70s, she says, adding, “She can’t enjoy it when she’s dead.”

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