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In May 1997, E.I. du Pont de Nemours & Co. quietly settled a suit with 427 residents of Pompton Lakes, N.J., who alleged they were ill, or could become ill, from exposure to contaminants from a company munitions plant closed in 1994. Within a month, the rest of the families in the tiny Passaic County town of 11,000 received a letter from DuPont assuring them that there was no danger to residents. The chemical giant offered each household a few thousand dollars, depending on the size of the family, if they would just sign a release not to sue. That proved a mistake. Residents rushed to plaintiffs’ lawyers. “They said, ‘Hey, if they want to give me $5,000 to go away maybe there is a problem,’” says Edison, N.J., plaintiffs’ lawyer Thomas Barlow. Within months, Barlow’s firm, Lombardi & Lombardi, filed a new suit, with 1,800 new plaintiffs, in Middlesex County. Then the West Orange, N.J., firm of Sachs, Maitlin, Fleming, Greene, Wilson & Marotte, also inspired by the DuPont release letters, went into federal court in Newark, N.J., with another 511 plaintiffs. This time, though, DuPont decided to fight, aided by Chicago litigation powerhouse Bartlit Beck Herman Palenchar & Scott. It was Barlit Beck that defended President Bush in the Florida voter recount war in 2000 and that now represents the Justice Department in its antitrust case against Microsoft Corp. Bartlit Beck, with 45 litigators, boasts a courtroom record of 28 victories, two ties and two losses since its founding in 1993 and was labeled Chicago’s top litigation firm in 1999 by Euromoney Legal Publications. Bartlit Beck staffed the trial against the Lombardi & Lombardi’s plaintiffs — which was shipped to Paterson, N.J., and, after five weeks of testimony, is awaiting a verdict — with three partners, an associate, plus paralegals and secretaries, all ensconced in what their adversaries call a war room at the Fairfield Radisson Hotel. They have also retained outside public relations counsel. Moreover, a DuPont in-house senior counsel, Ross Schmucki, has been monitoring the trial. As local counsel, Dupont dropped Lowenstein Sandler, which defended in the initial case, and retained Carpenter, Bennett & Morrissey litigation partner John Dwyer. Dwyer, who handled most of the arguments on the law in the trial, is supported by fellow partner Claire Cecchi, a toxic tort litigator, and associates Elizabeth Kenny and Karen Warren. Against this nine-lawyer team is Michael Lombardi, the senior partner of the nine-lawyer firm, along with partner Barlow and associate Paul Garelick. They are using a small litigation-support firm. Lombardi & Lombardi usually handles individual personal-injury cases rather than mass tort cases. Michael Lombardi, though, was co-liaison counsel for the plaintiffs’ team in the litigation against Texas Eastern Transmission Corp. stemming from the 1994 pipeline rupture at the Durham Woods apartment complex in Edison that left more than 100 people injured and hundreds more homeless. Lombardi & Lombardi had 450 of the 2,200 plaintiffs that settled for $70 million, in a case with 75 plaintiff firms. The stakes are high for both sides. Lombardi & Lombardi’s Barlow says the firm has already spent $1.5 million, which does not include hours, staff costs or overhead. Michael Lombardi says the case is being handled on a contingency fee. But the firm would have to file a fee application if the plaintiffs are awarded money for future medical monitoring, and if Superior Court Judge Frank Donato, who presided at the trial, decides to establish a fund rather than give each plaintiff a separate monitoring award. Lombardi estimates the medical monitoring would cost DuPont $80 million to $90 million for 1,600 plaintiffs. (Some 200 plaintiffs have dropped out.) Bartlit Beck is most likely rolling the dice also, though to a much lesser extent. The firm says it usually takes cases on a non-hourly fee-and-bonus basis, with incentives not only to be efficient, but also to win. It uses the so-called diamond structure, with 31 experienced partners and 14 savvy associates, rather than being bottom-heavy with young associates. Bartlit Beck partner Jeffrey Hall, lead counsel in the trial, declines to comment on the firm’s arrangement with DuPont. PROVING CAUSATION The Passaic County case, Naftali et al v. E.I. du Pont, PAS-L-364-98, though complex, comes down to whether the plaintiffs can prove not only that they were exposed to the contaminants in the air, water and soil generated by DuPont’s munitions plant in Pompton Lakes, but that that exposure caused their illnesses. The burden of proving the need for medical monitoring is even tougher: They must prove that DuPont is the cause for the need for future monitoring of many people who admittedly are healthy now. Many of the facts are undisputed. DuPont operated its explosives factory, which made blasting caps, from 1902 until it closed in 1994. For decades, chlorinated solvents used to clean heavy machinery were dumped into unlined ponds and lagoons on the 600-acre plant site. DuPont admits that lead, mercury, arsenic, copper, zinc, boron and other chemicals were dumped and does not deny that many of these contaminants leaked into the ground water and that some leakage went offsite. DuPont has spent $130 million to date to clean up the site, including hauling off dirt from more than 100 nearby homes. To streamline the trial, Donato chose 10 plaintiffs at random, indicating that a second “bellwether trial” would follow, in which plaintiffs representing various types of claims — such as cancer, neurological disorders, reproductive problems, property damage or property devaluation — and those simply seeking monitoring, would be chosen. The disparate claims barred a class action. A 14-person jury got the first case on Wednesday, following 28 witnesses and 53 pieces of evidence. All 10 plaintiffs claim the need for medical monitoring while four allege actual illnesses, including bladder, thyroid and other cancers, neurological and learning disorders and rheumatoid arthritis. The plaintiffs’ expert witnesses testified that the “toxic soup” running through the municipal water system has caused the town’s cancer rate to be four times the national average. A geologist testified that the chemicals leaked through the cracks in the bedrock of the ponds and lagoons, eventually running through Acid Brook and into Pompton Lake, exposing everyone in town. Lombardi won his argument that the contaminants are “abnormally dangerous,” which caused the judge to rule that DuPont was strictly liable, thus relieving the plaintiffs from proving negligence. But on May 17, Donato gave a big boost to the defense, finding that the jury could not consider punitive damage because there was insufficient evidence that the company’s actions were malicious or “willful and wanton” as required under New Jersey law. Barlit Beck’s Hall and his fellow partners, John Phillips and Steven Derringer, came armed not only with their own experts but also with more neutral ammunition. They presented a 1994 study from the state Department of Health and Senior Services that concluded that cancer rates in Pompton Lakes were in fact lower than the overall state rate. They also produced a state Department of Environmental Protection document stating that contaminants from the town’s municipal well No. 3 — the one plaintiffs allege was most contaminated — did not come from DuPont’s plant site. They also put on the stand the chairman of the Pompton Lakes Municipal Utilities Administration, George Decker, who testified that in his 17 years on the job, back to 1985, the town’s drinking water has consistently met state safety standards for chemical contaminants. The plaintiffs presented an internal company memo, unsigned and undated, that was dug out of more than 1 million pages received from DuPont during discovery. It brags that the large amount of data provided to the DEP “has pulled the wool over the eyes” of state regulators. DuPont spokesman Tom Barry says it was “a stupid comment that certainly does not reflect the position of DuPont.” Donato ruled against the plaintiffs on several points that Lombardi and Barlow concede could be trouble. He wouldn’t let them tell jurors that DuPont’s lawyers are from Chicago. He rejected their objection to exposing the jurors to a huge sign near the plant advertising new luxury townhouses while on a tour of the plant, thus suggesting a lack of fear of moving in next to the site. And he wouldn’t let the jurors hear that MUA chairman Decker accepted $8,000 from DuPont when it offered money for releases in 1997, saying it was not relevant. DuPont’s main argument is that while residents may have been exposed to some contaminants from the plant, no one could have taken in the necessary dosage to cause harm, since people take in such contaminants every day without harm. Lombardi concedes that the jury charge makes his chances tougher, saying that the judge leaned more toward case law pushed by the defense. Theer v. Philip Carey Co., 133 N.J. 610 (1993) requires plaintiffs to prove they were exposed to a significant dose of a toxic chemical. Lombardi would have relied more on Ayers v. Jackson Twp, 106 N.J. 557 (1987), which does not require plaintiffs to prove the actual dosage they were exposed to. For the plaintiffs to win under Donato’s charge, the jurors must find that they proved by a preponderance of the evidence that they were “frequently and regularly exposed to chemicals from DuPont” and that “DuPont proximately caused the injuries.”

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