Class action crusader says 'floc' settlement unfair

MOUNDSVILLE – The founder of the Center for Class Action Fairness says a recent settlement in Marshall County that provides medical monitoring and millions of dollars in fees for attorneys appears unfair.

Ted Frank, who founded the CCAF in 2009 and is an adjunct fellow at the Manhattan Institute, says his project doesn’t solicit clients but would consider helping any class member who wishes to object to the settlement before an April 1 deadline.

The settlement, reached in Marshall County Circuit Court, provides up to $6.6 million in medical tests for individuals who worked at coal and water treatment plants who were possibly exposed to a chemical called polyacrylamide, often referred to as “flocculent” or “floc.”

The lawsuit said workers at plants that used the chemical have a higher risk for sensory or autonomic nervous system deficits but doesn’t allege any injuries have yet occurred.

Plaintiffs attorneys plan to request one-third of the $13.95 million and almost $2 million in costs.

Money left in the $6.6 million medical monitoring fund after a court-approved deadline will be given to the Blanchette Rockefeller Neurosciences Institute in Morgantown and the Center for Rural Health at the Joan C. Edwards School of Medicine at Marshall University.

"A settlement fee request where the attorneys propose to get $6.62 million and the class members get $6.58 million is unfair on its face - especially when it appears structured so that much of that $6.58 million will actually end up in the hands of third parties long after the attorneys have collected their checks,” Frank said.

“One hopes that a class member objects to this disproportionate distribution, and that, whether or not such a class member comes forward, West Virginia courts provide protection for innocent class members being taken advantage of by their attorneys."

The defendants were manufacturers and distributors of the chemical and included Chemtall, CIBA Specialty Chemicals, Cytec Industries, G.E. Betz, Hychem, Ondeo Nalco, Stockhausen and Zinkan Enterprises.

Class members must file a claim form to get a medical examination. A deadline to do so has not been determined yet, but attorneys involved say it could be as early as March 1, 2014.

Class members cannot exclude themselves from the settlement, which means they can’t sue as individuals for free examinations. However, should a class member develop an injury, he or she will still be able to file a lawsuit.

Class members may object to the settlement by April 1. A fairness hearing is scheduled for May 1.

The defendants have not admitted liability. The settlement notice will be published in newspapers and a 30-second radio spot is being aired.

Representing the plaintiffs is R. Dean Hartley of Hartley & O’Brien. He did not return a phone message seeking comment.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.