ThePopTort

An Unbelievable Week in Review

We haven’t posted much this week.  That’s not because of the scarcity of civil justice news but rather the opposite - we were overwhelmed by the significance of it.  Finally, here is a quick review.

We’ll start by noting that April 20 marks the third anniversary of the Deepwater Horizon oil rig explosion in the Gulf.  The Coalition for Sensible Safeguards has a good wrap-up.  Ken Feinberg, the lawyer who was hired by BP to administer its highly-controversial victims’ compensation fund, the Gulf Coast Claims Facility (now taken over by the court), has been hired to distribute funds to the Boston Marathon victims.  This money has been donated by various charitable sources.  It’s our view that victim compensation funds are far more appropriate where there is no discernable wrongdoer capable of compensating for mass casualties - a wrongdoer that should be held accountable in court, like BP.  We’ll see how Mr. Feinberg does in his new role. 

The United States has had some of the best and, under some circumstances, the only laws available to human rights survivors to obtain some sort of redress, and legally to hold abusers accountable.  These laws include the Alien Tort Statute, a law which (you would think) should be a source of pride in this country, especially when you see what happens in other countries like Guatemala.  (There, corrupt leaders just stopped the genocide trial against war criminal Rios Montt.)  But the U.S. Supreme Court substantially chipped away at the ATS this week by greatly limiting its reach. (See more in Scotusblog and from the Alliance for Justice.)

Turning to Texas, it’s clear lax regulation was largely to blame for the tragic fertilizer plant explosion.  The Dallas Morning News put it this way: “[T]his much is clear: The explosion came after years in which state and federal agencies overlooked the potential for what some say was a preventable catastrophe.” More here. And, "A soil scientist at U.C. Berkeley says the deadly Texas explosion is another example of a troubling pattern; a lack of proper oversight to ensure public safety. Professor Garrison Sposito is not the only scientist or engineer to make the same connection. He says you can see it in the Deepwater Horizon oil spill …”  So back to that again.  And that's not all.  Texas corporations also know that if they kill or injure people, it's unlikely they'll ever be held fully accountable in court. 

Texas is also home to one of the most startling medical malpractice news stories of the week.  After years of trying (falsely, we might add) to convince the public that enactment of draconian “tort reform” in Texas caused doctors to flood into the state, this week Texas lawmakers took up emergency legislation to fix - wait for it – the state’s critical doctor shortage.  

And that’s not the only unbelieveable med mal story this week.  Anyone who thinks profit isn’t the primary cause of our nation’s horrendous patient safety problem better take a look at the New York Times this week, which reported on a JAMA study finding that, “Hospitals make money from their own mistakes because insurers pay them for the longer stays and extra care that patients need to treat surgical complications that could have been prevented.…”

Dr. Barry Rosenberg, an author and a managing director of Boston Consulting, said the study came about because his firm was working with Texas Health Resources to find ways to reduce its hospitals’ surgical complication rates, which, at 5.3 percent, were in line with those reported by similar hospitals. Part of that work involved analyzing the costs, and he said the team was stunned to realize that lowering the complication rates would actually cost the hospital money.

“We said, ‘Whoa, we’re working our tails off trying to lower complications, and the prize we’re going to get is a reduction in profits,’ ” Dr. Rosenberg said in an interview. …

In an editorial, Uwe E. Reinhardt, an expert on medical economics from Princeton University, called the study’s findings “troublesome but not surprising.” He called the current payment system “untoward,” adding that it “can tempt otherwise admirable people into dubious conduct.”

Dubious, and sick.  And speaking of sick, let’s not forget guns.  You all know about the shameful Senate gun vote this week.  As if the gun industry couldn't get any more sickening, this industry, which already is immune from liability for gun violence, started blocking Boston bomb investigators because apparently the reach of their extensive legal protection wasn’t infinite enough for the NRA.

Extremism cannot be maintained.

A Virtual Coal Mine of New Information

The DC corporate law firm Crowell & Moring has been involved in some nasty stuff over the years.  For example, the Tobacco Archives contain numerous “Tort Reform Project” budgets from tobacco companies, showing fees to Crowell & Moring (among other firms), whose counsel at the time was Victor Schwartz, General Counsel of the American Tort Reform Association. (We occasionally cover Victor, like here).

However, I have to say that until we got word of two earlier decisions that had cleared members of Crowell & Moring of ethics violations, reported in yesterday’s “The BLT: The Blog of the Legal Times,” we were unaware of this: In 2011, Crowell’s D.C.–based partners Clifford Zatz, William Anderson and Kirsten Nathanson, and counsel Monica Welt, wrote a memo for their mining industry clients “that raised the specter of inbreeding in the Appalachian region.” This document understandably caused enormous outcries and protests among many people, including Appalachia native and assistant professor at the Charlotte School of Law Jason Huber, who responded by filing an ethics complaint against the four.  (You can find the complaint here as well as the memo, which the firm pulled from its website around the time it apologized for writing it.)  

Writes BLT:

Two decisions that just recently came to light—one issued in December and another handed down a year ago—squelched a 58-page complaint filed against the four Crowell lawyers with the Office of Bar Counsel in Washington after they penned a controversial mining industry-related memo in 2011 that raised the specter of inbreeding in the Appalachian region.

The Crowell attorneys wrote the memo “in response to an academic study exploring possible links between mountaintop coal mining and birth defects in the Appalachian region.” Huber filed the complaint alleging (unsuccessfully), that “the Crowell lawyers ‘ran afoul of their ethical and moral obligations as attorneys in soliciting business from the mining industry’ through their criticism of the birth defects study [and that the Crowell memo] contained ‘material misrepresentations about the Appalachian people,’ which he feels should lead to some professional sanctions against the lawyers involved.” 

Well, these lawyers may be off the hook, but the news isn’t all good for the mining industry, and especially for former Massey Energy head Don Blankenship, which ran the Upper Big Branch mine when an explosion killed 29 Massey miners. (See some of our earlier coverage here).  Last week, while pleading guilty to two counts of conspiracy, former White Buck Coal Co. president David Hughart implicated Blankenship “in what appears to be a widespread corporate practice of warning coal miners about surprise inspections.”  Specifically,

Hughart, 54, was accused of working with others to ensure miners at White Buck and other Massey subsidiaries got advance warning about federal inspections between 2000 and March 2010. Such warnings let miners and managers conceal potentially deadly conditions that could lead to a shutdown in production.…

Though he was not mentioned by name in court, Blankenship was CEO at the time. And outside the courtroom, Karen Hughart confirmed that’s who her husband meant.

“Don called the office and at home,” she said, adding that her husband has been threatened several times in his career. “Anyone that did not comply was threatened. We lived under fear.”

Hughart is the highest-ranking Massey employee involved in a criminal case since the investigation began. He faces up to six years in prison and a $350,000 fine when sentenced June 25. A former Upper Big Branch superintendent was recently sentenced to 21 months in prison after pleading guilty to charges he defrauded the government through his actions at the mine.

Blankenship retired about eight months after the nation’s worst coal mining disaster in four decades, and several victims’ relatives have demanded he be prosecuted.

Seems like there are more than enough coal mining industry shenanigans to keep Crowell & Moring plenty busy!

Attack of the Drinking Water Killers

Lest you think that hydro-fracking is the only threat to your drinking water these days (check out Sean and Yoko’s anti-fracking press conference on Friday, with Sean pleading to save the drinking water at his – formerly his dad's – upstate New York home), let me assure you that this is but one of the many ways the oil and gas industry have tried to poison you. Or as Yoko unforgettably put it, “Fracking kills. So it’s such a pity that we're going to do that, we’re going to commit suicide all together?" Learn more here. 

Today, jury selection begins in the state of New Hampshire’s case against ExxonMobil and Citgo.  The state is asking these companies “to pay more than $700 million in damages to monitor and clean up groundwater contamination caused by the gas additive MTBE — methyl tertiary butyl ether — now banned in New Hampshire.”

The lawsuit — filed in 2003 — is the only one brought by a state to reach trial on the issue of MTBE groundwater contamination. Most of the other MTBE cases nationwide were brought by municipalities, water districts or individual well owners, and all but one was settled or dismissed.… New Hampshire banned its use in 2007 [and] roughly 60 percent of New Hampshire’s population gets its drinking water from wells.

MTBE is a highly toxic chemical that has been added to gasoline since the late 1970s and has contaminated water supplies in every state in the nation. U.S. Geological Survey experts estimate that there may be 250,000 leaking underground storage tank releases of MTBE. (See our coverage last year when the industry was trying to get immunity from Congress.)

The oil companies are claiming preemption – that “by adding MTBE to gasoline, they were complying with a U.S. mandate to supply fuel that would burn more cleanly,” even though there were obviously safer alternatives that wouldn't poison underground aquifers supplying half of the nation’s drinking water. And they’re claiming that the statute of limitations has run. And they’re claiming, “This case is not about health risks or personal injuries … There is not a single recorded case of anyone getting sick from drinking water with MTBE. The majority of the state’s damage claims are based on computer models and projections not on actual testing or data.”

Wow, that’s ball-sy of them, especially since New Hampshire sued in 2003, every other oil company has already settled with the state.

The fact is that that these companies had extensive knowledge of the toxicity of MTBE in groundwater yet voluntarily used it as a gasoline additive for decades without alerting their customers, the public, or Congress of the potential hazards.  That is certainly what a California jury believed in 2002, when it decided that the several major oil companies acted “with malice” and were liable for polluting ground water with MTBE and withholding information. 

Over to you, New Hampshire jurors!

Eating and Drinking in the USA

As we return from our very extended summer holiday, we’re sad to learn of the passing of the great actor Michael Clarke Duncan, who sadly never recovered from a heart attack he suffered a few weeks ago. 6 foot, four inches. Large, muscular guy. Dead at only 54-years-old. You’re probably wondering, what was that guy eating? Well, he was eating vegetables. He was also eating fruit and drinking water. Michael Clarke Duncan was a vegetarian (and if you read this disgusting story about abused cows, you might become one too.) 

Now we're not saying the veggies killed Mr. Duncan (obviously).  But they actually have killed others.  In fact, the news is once again replete with stories about our country’s rash of killer fruit, vegetables and water.

First of all, you may have heard that Stanford scientists have announced a new study finding “little evidence that going organic is much healthier, citing only a few differences involving pesticides and antibiotics,” like “a notable difference with antibiotic-resistant germs, a public health concern because they are harder to treat if they cause food poisoning.”  That is not exactly a minor point. If you haven’t read this Center for Justice & Democracy study or visted Bill Marler's blog, you should. 

As more evidence of this nation’s lethal fruit and veggie epidemic, “Manna Organics has just recalled various soybean sprouts and tofu products” because of possible listeria contamination. On Saturday, “a New Jersey produce company recalled a number of products distributed in the Northeast that contained fresh-cut mangoes …because of potential salmonella contamination."  Also, Dole recently voluntarily recalled "1,039 cases of bagged salad after a random sample tested positive for the Listeria bacteria.” Meanwhile, just as the CDC “raised its official tally of deaths from Colorado's 2011 cantaloupe listeria outbreak to 33  (see our earlier coverage here), DNA confirms that "cantaloupe from Chamberlain Farms in Owensville, Indiana is the source of at least some of the salmonella responsible for an outbreak that sickened people in 21 states and killed two Kentucky residents.”  This just never ends!

Now, water.  We would like to bring to your attention an incredibly moving anti-fracking op ed, which appeared in the New York Times while we were gone – penned by John and Yoko’s son, Sean Lennon. Turns out the family has had a farm in upstate New York. Who knew? This piece was written just as New York officials have begun seriously considering lifting New York State's fracking ban and that means, "watch out water."  (See our earlier coverage here.)  Writes Sean,

A few months ago I was asked by a neighbor near our farm to attend a town meeting at the local high school. Some gas companies at the meeting were trying very hard to sell us on a plan to tear through our wilderness and make room for a new pipeline: infrastructure for hydraulic fracturing. Most of the residents at the meeting, many of them organic farmers, were openly defiant. The gas companies didn’t seem to care. They gave us the feeling that whether we liked it or not, they were going to fracture our little town. …

Though my father died when I was 5, I have always felt lucky to live on land he loved dearly; land in an area that is now on the verge of being destroyed. When the gas companies showed up in our backyard, I felt I needed to do some research.

I looked into Pennsylvania, where hundreds of families have been left with ruined drinking water, toxic fumes in the air, industrialized landscapes, thousands of trucks and new roads crosshatching the wilderness, and a devastating and irreversible decline in property value. Natural gas has been sold as clean energy. But when the gas comes from fracturing bedrock with about five million gallons of toxic water per well, the word “clean” takes on a disturbingly Orwellian tone. Don’t be fooled. Fracking for shale gas is in truth dirty energy. It inevitably leaks toxic chemicals into the air and water. Industry studies show that 5 percent of wells can leak immediately, and 60 percent over 30 years.

There is no such thing as pipes and concrete that won’t eventually break down. It releases a cocktail of chemicals from a menu of more than 600 toxic substances, climate-changing methane, radium and, of course, uranium. New York is lucky enough to have some of the best drinking water in the world. The well water on my family’s farm comes from the same watersheds that supply all the reservoirs in New York State. That means if our tap water gets dirty, so does New York City’s.

In case you're wondering, that's drinking water for eight million residents and 50 million annual tourists.  Learn more about fracking and the efforts of artists like Sean and Yoko here.

Regulation, Litigation and Propane Gas

On March 4, 2009, when the U.S. Supreme Court ruled in its 6-3 decision, Wyeth v. Levine, that drug companies were not immune for injuring or killing patients, the Court had some noteworthy things to say about the important relationship between regulation and litigation.  For example, the Court noted the “longstanding coexistence of state and federal law and FDA’s traditional recognition of state-law remedies.”  It stated, “[Congress may] have recognized that state-law remedies further consumer protection by motivating manufacturers to produce safe and effective drugs and to give adequate warnings. …State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly [and] serve a distinct compensatory function that may motivate injured persons to come forward with information.”

Drug cases are a great example of lawsuits performing their dual function: supplementing the government’s efforts to protect the public’s health and safety, and compensating those who are injured or the families of those killed.  But drug cases are hardly the only example.  Today, we have another poignant illustration. 

As explained in a January 2011 complaint filed in a Massachusetts state court, on July 30, 2010,

“EnergyUSA negligently under-filled a new propane tank at the Norfolk [MA] condominium construction project, causing the chemical odorant which had been added to propane to fade. This made the leaking propane gas odorless and undetectable. … [Then] Smolinsky Plumbing and Heating carelessly failed to tighten a connection to the furnace, which led to the leak of the undetectable propane gas.  The leaking propane gas caused [an] explosion.

[Electrician] William Nichols, age 46, was buried under burning debris for over 90 minutes before he was rescued by local firefighters. 

What’s more, “During this time, he was crushed by smoldering debris, enveloped in noxious smoke and suffering with burns over 80 percent of his body. … Nichols pleaded with his rescuers to say goodbye to his fiancé and other family members.  He was removed from the explosion site alive and died later that night of his injuries at Brigham and Women's Hospital in Boston.”  Terrible.

Today, Massachusetts media are reporting that EnergyUSA Propane and Smolinsky Brothers Plumbing and Heating have settled with Billy Nichols’ family for $7.5 million.  But just as importantly,

The explosion prompted state Fire Marshal Stephen Coan to lead a nationwide effort to improve safety regulations in the propane industry.

In a report, the fire marshal’s office found that a phenomenon known as “odor fade” occurs when the chemical that is added to give propane its distinctive “rotten eggs” smell fades over time.  The report noted that this problem is particularly troublesome in new tanks, such as the one at the Norfolk condominium site.

In response, it is expected that the state will introduce new regulations this fall which will ensure better safety training for propane delivery personnel, as well as a requirement that newly-installed propane storage tanks get filled to the maximum liquid level to avoid the odorant fade problem that led to the explosion in this case.

In a statement released by [attorney Marc L.] Breakstone, the family of Nichols expressed appreciation that greater safety awareness in the propane industry to the dangers of unodorized gas will result from their lawsuit.

“It is our hope that our brother’s tragic death will lead to safety standards that may prevent other families from suffering the loss or injury of a loved-one due to a propane explosion,” Mark Nichols said.  

Moreover, Norfolk Fire Chief Coleman Bushnell, who is helping to create new regulations, said “the work has expanded to the federal level ‘and we hope this incident will serve as testament to ensure for the public's safety.’”  Writes the Boston Globe:

The pending regulations would require propane companies to regularly test gases three different ways to ensure that there are adequate levels of ethyl mercaptan, the odorant, at every stage of the process. Under the regulations, railroad cars would also have to pass the test before they could be unloaded in Massachusetts, and new tanks in the ground must be filled to 80 percent capacity within 48 hours, said Timothee Rodrique, the director of the division of fire safety within the state’s Executive Office of Public Safety and Security. …

A settlement between the Westfield facility and Attorney General Martha Coakley’s office enacted the proposed regulations at the facility while the investigation was still underway. The statewide regulations have been approved by the Board of Fire Prevention and are awaiting approval for a public hearing, which could come as early as September, Rodrique said.

The regulations would go into effect as soon as they are filed with the State Register, which would be about a month after the public hearing, Rodrique said. Among the regulations is mandatory training for anyone handling propane — including gas grill owners, who would face about 30 minutes of instruction.

“This will make it much safer for millions of grill owners in Massachusetts and the firefighters,” [Fire Marshal Stephen] Coan said. “So they will definitely smell propane when there is a leak.”

Two other individuals who survived the blast with permanent injuries “settled last week for a total of $22.5 million.”  As Norfolk Fire Chief Coleman Bushnell put it:

It is nearly perfect symmetry that the suits involving the Mr. Nichols and the two most seriously injured took place almost two years from the incident.  The "wheels of justice" turned true for the soul of the deceased and for the future of the living.

BP’s Health Impact – We’ve Only Just Begun

Albert Schweitzer once said, “Happiness is nothing more than good health and a bad memory.”  If you live in the Gulf region, I would imagine you’d need a pretty bad memory to forget the BP oil rig explosion and spill, celebrating it's second anniverary today.  For others, good health may be just as unlikely right now.

Like all environmental disasters, the most serious health effects take time to develop.  Just look at the terrible state of affairs for Ground Zero clean up workers, who are sick and dying more than a decade after 9/11. People are still sick and dying today in Bhopal India, 27 years after a horrendous chemical explosion.  They’re all like this, these catastrophes.

BP’s Gulf Coast disaster is no different.  So much focus has been on the commercial losses suffered by individual and businesses.  Please don’t get me wrong, these are important.  In fact, we note with interest the results of a new audit of the Gulf Coast Claims Facility, commissioned by the U.S. Department of Justice, which found,

Thousands of people affected by the BP oil spill will receive $64 million in additional compensation after an independent audit identified “significant” errors in the claims process set up after the disaster, the Justice Department said Thursday.

The independent audit, conducted for the Justice Department by an outside consulting firm, found that the Gulf Coast Claims Facility (GCCF) did not adequately compensate 7,300 individuals and businesses.

In addition, the audit found 2,600 claims that were wrongly denied, but will not receive additional payments, “because their claim files did not contain information needed to determine whether the claimants sustained a financial loss,” according to an executive summary of the audit.

Notably,

Last month, the Mississippi Center for Justice, which provided pro bono legal services for claimants, said it was helping 7,000 people who were not part of the litigation and were struggling to navigate Feinberg's complex claims process. Martha Bergmark, the center president, said the process needed to be more transparent and equitable.

John Jopling, the center's managing attorney in Biloxi, thanked the Justice Department for a speedy and thorough review, but said the center "hopes it's just the first step to paying tens of thousands of claimants who haven't been paid and may still be awaiting a determination."

Yet those facing health problems are in even worse shape.  So kudos to the Huffington Post, for taking on this issue and, sadly but not unexpectedly, finding some horrendous health problems surfacing - especially among children living close by.  One mom, Nicole Maurer, has several terribly sick children and now, her kitchen cupboard “resembles a pharmacy” with all the medications they need.  Yet until now, her family has had no recourse whatsoever: 

Nicole Maurer’s claims for compensation from BP have so far been “denied, denied, denied,” she says. “Did I say ‘denied?'” Her husband, William, earns a fraction of what he used to as a commercial fisherman, making their plan to move away from the Gulf Coast all but impossible.

… William says he is “sure” he brought chemical dispersants and crude oil home every night while working on the Gulf cleanup. “I never got one piece of protective equipment or clothing,” he says, before erupting into one of his frequent coughing fits and spitting into the garbage can. A lack of protection for the cleanup crews has made its own headlines over the last two years.

I say “until now,” because attorneys working on behalf of the victims have forced BP to cough up some money to help families with chronic health problems and to institute critical medical monitoring.  Kudos to them, because without litigation, BP would have had no motive to do it – especially since they still deny any liability for these claims.

Writes marine toxicologist and Exxon Valdez survivor Riki Ott,

For two years, BP and the state and federal governments denied the epidemic of respiratory problems, dizziness and headaches, horrific skin lesions, and blood problems was linked with the oil and chemical disaster -- despite the fact that medical literature identifies these identical symptoms as characteristic of oil spill exposure. Now under the BP-Plaintiffs' Settlement, BP has agreed to pay literally billions of dollars for medical claims, medical monitoring for twenty-one years, medical services, and community health clinics for underserved populations staffed with specialists in chemical illness treatment -- but with no admission of liability.

Of course not.  What else is new?

Oil Industry Faces Off Against Everyone

You would think that with gas prices climbing into the $5 per gallon range, oil companies might want to lay low for awhile - instead of being in everyone’s face.  But what do I know?

Let’s start with the billionaires. In Louisiana, there’s a heated dispute brewing between oil and gas producers, and “the state's wealthiest corporate and individual landowners.”  Writes the Times-Picayune,  

At issue are the law and regulations that govern “legacy lawsuits,” the shorthand for civil actions filed by property owners alleging environmental damages and other claims against energy producers that have previously leased a plaintiff's land. …

A state Senate committee has just held a public hearing on this “billionaires and millionaires versus millionaires and billionaires” dispute.  And when the oil companies are finished down in Baton Rouges, they’ll be heading up to Washington, DC for hearings on legislation that is supposed to be about ethanol, but thanks the Big Oil’s lobbying prowess, has now become legislation about them!

I’m talking about the new Domestic Fuels Protection Act of 2012, on which there are hearings before a House Energy and Commerce Subcommittee this Thursday, April 19.  Charles T. Drevna, President of the American Fuels and Petrochemical Manufacturers, will be testifying in favor of the bill, among others.  (Witnesses opposing the legislation are K. Allen Brooks, Senior Assistant Attorney General and Chief, Environmental Protection Bureau for the State of New Hampshire, and Shannon Baker-Branstetter, Policy Counsel, Energy and Environment, Consumers Union Policy & Action from Consumer Reports.) 

Buried in this complicated piece of legislation are provisions that provide broad liability exemptions to fuel producers, engine manufacturers and retailers of virtually all transportation fuels and fuel additives, like methyl tertiary-butyl ether (MTBE) - a gasoline additive notorious for leaking from underground storage tanks and contaminating groundwater.  As we and many other organizations noted back in 2003 when similar immunity legislation was pending in Congress, immunity for MTBE contamination “poses unprecedented environmental and public health risks” and “a serious threat to the underground aquifers that supply half of the nation’s drinking water.…MTBE is a toxic and highly persistent chemical that has been added to gasoline since the late 1970s. U.S. Geological Survey experts estimate that there may be 250,000 leaking underground storage tank releases of MTBE.”

Finally, back to the gas pumps, we have a true consumer scandal on which NBC’s Jeff Rossen reported this morning on the Today Show.  Turns out that when it's hot outside, you get far less value for the gas you purchase.  (Hot gas loses energy.) Gas pumps with special meters, which calibrate your purchase based on temperature, are available and widely used in Canada. 

No surprise that the petroleum industry here is fighting hard against any requirement for such meters here.  However, says Rossen, thanks to a bunch of class action lawsuits filed by drivers in 21 states, the industry may be caving.  Costco has now apparently agreeed to install temperature meters in warm weather states.  BP Shell and Conaco have agreed to some kind of settlement too, but the details are yet unclear.  Other gas station chains are expected to be in court next month. 

Visit msnbc.com for breaking news, world news, and news about the economy

Erin Brockovich II - Leroy, NY

I had just about stopped watching “Headline News.”  First it was their decision to have all their hosts try and convict Casey Anthony for murder as they sat in isolated TV studios, and then trashing the actual jury for disagreeing with them.  (Or as manic host Nancy Grace elegantly put it: "Tot Mom's lies seem to have worked. The devil is dancing tonight." ) This was followed by Joy Behar getting the axe.  What was the point of watching anymore?

Yet clicking through stations the other night, there was Erin Brockovich on HLN’s Dr. Drew Show!  And she was breaking some “stunning” news (as Dr. Drew put it) about what might be causing the terrible Tourette's like symptoms hitting teenagers in Leroy, NY, which until now many have blamed “conversion disorder, or mass hysteria.” 

But now we find out, as reported on Dr. Drew, that a1971 train derailment very close to where these kids go to school caused cyanide and 45,000 gallons of TCE to spill, and which was never cleaned up.   Erin's team went to Leroy to start taking soil samples at the school – but were sent away. 

Here’s some of what they told Dr. Drew:

HLN CORRESPONDENT JIM SPELLMAN: In that statement, Superintendent Kim Cox said the school district had hired an environmental consulting firm to review previous test results. But after being denied access to school grounds, [BOB BOWCOCK, ENVIRONMENTAL INVESTIGATOR] remains skeptical. 

BOWCOCK: I will tell you that usually in settings or situations like this when I`m confronted by officials barring access to something, they usually have something to hide.

SPELLMAN: After taking some water samples at nearby residences, Bowcock headed to the derailment site where in 1970, over 30,000 gallons of toxic solvent TCE spilled after a train went off the tracks. Bowcock said he was surprised to find an untended cleanup site, some of the storage drums were leaking and corroded.

BOWCOCK: But what they`ve done is they`ve left 55 gallon drums of the soil, when they drilled the monitoring well, the contaminated soil came up because if you put it on (ph) on a drum, it should go to a hazardous landfill.

It`s so - it`s so hazardous that they had to put this berm in to protect the stuff from spilling back out. You have a sign like that, and 55 gallon drums rotting away, leaking material out into the environment right now, draw your own conclusion.

 …

PINSKY: And Erin keeps telling me this is a big deal. This is something unlike anything either she or Bob has ever seen in their career. Tell me why.

ERIN BROCKOVICH, ENVIRONMENTAL ACTIVIST: Well, for some of the reasons, I mean first of all, for a couple of factors. I mean it took agencies so long to respond to a spill.

PINSKY: Twenty-five years.

BROCKOVICH: Twenty-five years.

PINSKY: So was there leeching of the spill for 25 years?

BROCKOVICH: Absolutely.

PINSKY: There’s documentation of wells being contaminated during that time.

BROCKOVICH: Absolutely.

PINSKY: People are getting jugs of water sent to them so they don’t drink the well water by the railroad company.

BROCKOVICH: Absolutely.

PINSKY: And then when they finally do respond, Bob, you say the site itself has been rendered into a toxic dump?

BOWCOCK: Oh, absolutely. They`ve gone in and excavated some of the materials to do their testing, put it in 55 gallon drums and left in there to rot and just go right back into the environment.

PINSKY: OK. So are we - are we saying that - I just want to add up the score. Summarize it for me, Erin, if you could, that this is an extraordinary situation. Bob, the dump site is unlike anything you’ve seen where the remediation site has become its own toxic spill.

BOWCOCK: Yes.

The EPA says there’s no connection to the train derailment.  Others say, "if this spill happened in 1971, why are we only see health problems now?"  Brockovich responded: 

BROCKOVICH: But very quickly just to share with you what people are reporting to me from the area, they are reporting that they grew up in that area and they`ve seen and they know of dumping. They’re reporting as adults now that as children they were told not to drink the water in or around the ball field.

I have people reporting to me who grew up in the area whose sons have tics, who were born with rare birth defects. I have children who grew up in the area who are reporting to me they had bone cancer at the age of 10. I have children who grew up in the area who are reporting to me as young adults in their early 20s that they`ve been diagnosed with acute lymphatic leukemia.

I`m getting reports from people who still live their on Maple Avenue, that there’s eight known families with very rare cancers, moving on to Erie Street, there’s more cases of cancer being reported. I have people reporting to me that their two and a half-year-olds have tic-like syndromes.

PINSKY: I`m going to stop you because we can’t substantiate this, but we get - we get the idea.

BROCKOVICH: Right. I understand. And these are all reports that we are clearly substantiating as well.

But I want something that people to understand for 21 years that I’ve been doing this, these people who come from these areas, they’re the first not to panic. They want answers and they’re reporting information to me that can help us get answers for these 12 girls, for them, and for the community as a whole.

These people have a lot better things to do in their life than sit around and make up these symptoms that can be clearly substantiated and send them to me. So what it`s telling us is that, yes, the 12 girls are exhibiting problems, but yet many other people are as well.

PINSKY: It may be the tip of the iceberg.

BROCKOVICH: Right.

HLN, I’ll be watching.

A Child’s Not-So-Fun Obstacle Course

Read some of these news stories today, and tell me that kids don’t deserve better than this:

The Minnesota Department of Health may be improperly keeping the blood newborns without the written consent of parents and turning that blood over to research.  Ugh.

Johnson & Johnson has finally agreed to remove cancer-causing chemicals from its baby products, like Johnson's Baby Shampoo, which contains formaldehyde-releasing chemicals. We should be happy about this result since the company still doesn’t admit there’s any problem subjecting babies to formaldehyde in its shampoo – as safe as “eating an apple or pear,” they say.  And they want to be sure you know that “the commitment to remove chemicals of concern does not apply to Johnson & Johnson's adult products such as those in the Aveeno or Neutrogena lines.”  In addition, the Campaign for Safe Cosmetics notes that “several other top children's bath products — made by Huggies, L'Oreal, Grins & Giggles, Baby Magic, Sesame Street, CVS and others— also contain formaldehyde-releasing preservatives as well chemicals associated with 1,4 dioxane.”  Read more here.

Moving onto toys, Reuters writes:

A Power Rangers "samurai mega blade" and a Godzilla figure with dagger-like attachments are some of the most dangerous toys lurking in stores this holiday season, according to a consumer watchdog group.

Boston-based World Against Toys Causing Harm (WATCH) on Wednesday issued its annual list of the 10 worst children's toys, just in time for the shopping frenzy that typically starts in late November.

On the list were items the group said pose risks for choking, electrocution, puncture wounds and more. 

Like J&J I guess, the Toy Industry Association thinks we are all overreacting, and that reports of toy hazards like this “needlessly frighten parents.”

As for kids' clothes, it was just announced that “About 45,000 KEDS 'Know It All' girls' shoes distributed by Collective Brands Inc. are being voluntarily recalled after more than two dozen users received cuts and scratches from parts that came loose.”

And last but not least - schools. In Los Angeles, the City Council just voted to settle a lawsuit brought by the Los Angeles Unified School District because “soil underneath a high school campus in Glassell Park was contaminated by chemicals that originated at a nearby city-owned property.”  

In their lawsuit, district officials said industrial solvents and other hazardous substances had been found in soil at one end of the campus — and fingered land owned by the Bureau of Sanitation as the culprit.

We shouldn't have to worry about stuff like this.

To Frack or Not to Frack – That’s the Legal Question

New York State is becoming even more fractured over fracking (see our earlier coverage here). Hydro-fracking, you may know, is a gas-drilling method that involves blasting millions of gallons of water and chemicals into wells at high pressure, often creating significant methane gas releases and contaminating drinking water supplies.

First, take a look at this Thomson Reuters story, reporting on two ideas now being considered by New York State lawmakers, “that would give property owners more options and, perhaps, an upper hand in court, including shifting the burden of proof from landowners to gas companies and creating an industry-supported remediation fund.”  Here’s specifically what’s under consideration:

In New York, as in most other states, the plaintiff carries the burden of proving not only that the company caused the pollution, but that it did so through negligence. The time and expense required to mount such a claim and see it through the appeals process can be prohibitive to many homeowners.

A bill that stalled in both houses of the legislature this year would impose strict liability on gas companies, essentially stripping away the requirement that plaintiffs prove negligence. But that proposal, industry attorneys said, may be untenable because gas companies could be held responsible when natural phenomena trigger the migration of gas into water supplies.

Natural phenomena.  What, like fracking causes earthquakes?  Yet another great side-benefit!

The other proposals is a remediation fund proposed by Comptroller Tom DiNapoli.  Although Thomson Reuters writes that this proposal “is aimed at keeping some cases out of court altogether,” DiNapoli’s office actually wrote us in September and said, “not true.”  So we shall see.

Meanwhile, Thomson Reuters reports, “State officials have said if fracking is officially sanctioned, the DEC could begin issuing drilling permits as early as next spring, but DEC Commissioner Joe Martens said last month that it could take the agency longer to sift through the thousands of comments.”  But some cities are already saying a big “no thank you” to that.  First Albany and Buffalo – and now Syracuse, or as conservative columnist David Brooks might call these cities, hotbeds of “extremism” and “not-in-my-backyard activists.” 

Everyone’s entitled to their opinion, I guess.  Watch one of them - Kathleen Joy, Syracuse Council majority leader - on Democracy Now today.  Sound like an extremist to you?