With no objections, 'floc' settlement ready for final approval

By John O'Brien | Apr 15, 2013


MOUNDSVILLE – It appears a proposed Marshall County class action settlement that sets up a medical monitoring system for West Virginians who worked at coal and water treatment plants will be approved.

The docket of the case Stern v. Chemtall, et al., shows no one objected to the settlement before an April 1 deadline to do so. The proposed settlement was approved Dec. 3 by Marshall Circuit Judge David W. Hummel, Jr., who will conduct a fairness hearing on May 1 at which he will likely give the settlement final approval.

In a January article in the West Virginia Record, Ted Frank, the founder of the Center for Class Action Fairness, said the proposed settlement appeared unfair because the monitoring program has approximately the same monetary value as the fees requested by plaintiffs attorneys.

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

“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.

Money left in the 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.

The case involves the chemical polyacrylamide, often referred to as “flocculent” or “floc.” Workers at coal and water treatment plants who were possibly exposed to it make up the class.

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.

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.

Representing the plaintiffs is R. Dean Hartley of Hartley & O’Brien. G.E. Betz will be responsible for paying attorneys fees and costs to the plaintiffs lawyers.

The defendants agreed not to dispute the fees award. They are also paying $750,000 in notice and administrative costs.

The complaint, filed in 2003, says the class members are at an increased risk for cancer of the testicles, adrenal gland, mammary gland, uterus, thyroid, pancreas, brain, spinal cord and lungs.

“The acrylamide monomer is toxic and is an irritant,” says the complaint, filed in 2003.

“Cases of acrylamide poisoning show signs and symptoms of local effects due to irritation of the skin and mucous membranes and systemic effects due to the involvement of the central, peripheral and autonomic nervous systems.

“The neurotoxicity of acrylamide has been recognized since the early 1950s during toxicologic studies prompted by the advent of large-scale production of acrylamide for the polymer industry.

“Within five months of commencing manufacture of acrylamide, several factory workers developed a peripheral neuropathy strikingly similar to neurologic signs previously noted in animals chronically intoxicated with acrylamide.

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

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