Objectors appeal Marshall Co. judge's approval of $14M 'floc' settlement

By John O'Brien | Sep 9, 2013

MOUNDSVILLE – Intervenors in a Marshall County class action lawsuit are appealing approval of the $13.95 million settlement, arguing Judge David Hummel, Jr. essentially rubber-stamped an order prepared by attorneys.

In May, Hummel entered an order denying the objections of intervenors in the lawsuit, which alleges workers at coal and water treatment plants were possibly exposed to the chemical polyacrylamide, often referred to “flocculent” or “floc.”

In August, he ruled against the intervenors’ motion to change his ruling. The intervenors have appealed his decision to the state Supreme Court.

“The Final Order signed by the court, except for footnote 1 and a conclusory sentence in par. C (overruling Intervenors’ objections) was prepared by class counsel and/or defense counsel and forwarded to the court prior to the Fairness Hearing of May 1, 2013, and, therefore, fails to include in it or demonstrate the reasoning behind the court’s conclusory finding that the settlement was fair, adequate and reasonable in the face of the detailed objections raised by Intervenor Objectors at the fairness hearing,” the intervenors wrote in May.

The settlement sets up a $6.6 million medical monitoring program while paying plaintiffs attorneys $6.62 million in fees and costs.

“The Parties to the Settlement Agreement supported their conclusions to the satisfaction of the Court that the settlement was fair, reasonable and adequate,” Hummel’s August order says, “and the objectors had every opportunity to show that the settlement was unfair to them and their class.”

Hummel’s order comes 10 years after the case was originally filed. The defendants are manufacturers and distributors of the chemical and included Chemtall, CIBA Specialty Chemicals, Cytec Industries, G.E. Betz, Hychem, Ondeo Nalco, Stockhausen and Zinkan Enterprises.

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, which was one-third of the total $13.95 settlement. 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 intervenors/objectors had filed their objection March 29 and were represented by Thomas F. Basile of Charleston.

They are arguing that part of the settlement that stipulates money leftover in the $6.6 million medical monitoring fund 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 – known as a cy pres award – is grossly unfair.

Basile’s appeal says it appears class members will use up only $600,000 of the medical monitoring plan, leaving a cy pres award of $6 million and no tangible benefit to class members.

Hummel wrote that the objectors’ assertions that most of the monitoring fund will be unused and given to WVU and Marshall was speculative. Members of the class will have nine months to participate in the program after final approval, he wrote.

Basile is representing at least three class members. His appeal notes a case known as Pettry in Boone County that was filed a year before the Marshall County case.

Basile says he brought the Segal Law Firm and Goldberg, Persky & White of Pittsburgh in as lead counsel for the Pettry case, and those firms filed a motion to intervene in the Marshall case, known as Stern.

In the motion to intervene, Danny Gunnoe and Franklin Stump were named as class representatives of a sub-class of coal preparation plan workers not being represented in the Stern litigation, and Teddy Joe Hoosier was named as a class representative for water treatment workers.

The Marshall court denied the motion, but the state Supreme Court reversed that decision in 2005. Gunnoe, Stump and Hoosier became known as the “Stern Intervenors.”

The Pettry case was also transferred to Marshall County to be managed along with the Stern case. It was stayed pending disposition of the Stern case.

“However, in August of 2010, counsel for Petitioners became aware that his co-counsel, Segal and Goldberg, who were lead counsel for Petitioners at the time, as well as for all Pettry Plaintiffs, were working with lead counsel for Stern Plaintiffs in such a way that they were acting adverse to the legal interests of their own clients,” Basile wrote in the appeal.

“Yet, they insisted they still represented Petitioners, refused to acknowledge their termination and insisted, over the objections of Petitioners, that they be permitted to remain in the Stern case as co-counsel for Stern Plaintiffs.”

Basile says Hummel avoided ruling on the conflict of interest issues and permitted Segal and Goldberg to continue working with Hartley in the Stern case.

Through a series of rulings and procedural moves, Gunnoe, Stump and Hoosier saw the demise of their claims, Basile says.

Segal, Goldberg and Hartley eliminated the three as class representatives for the purpose of being able to push through the settlement the three had been opposing, Basile claims.

Hummel wrote that there are no conflict of interest issues present that prevented certification of the class or approval of the settlement, objectors did not file a motion to disqualify class counsel or co-counsel and the objectors’ counsel failed to appear at the hearing that preliminarily approved class representatives.

Basile said he wasn’t at the hearing because of a medical emergency concerning his wife.

Basile also complained that the medical monitoring program is simply a one-time physical exam with no diagnostic testing.

“Counsel for the Objectors failed to introduce sufficient evidence supporting their objections to the class settlement and its monitoring program,” Hummel wrote.

“While three Objectors testified at the hearing, as lay witnesses, and described what ‘monitoring’ meant as a lay person, and counsel for the Objectors referenced the definition of ‘monitoring’ in the Merriam Webster Dictionary, counsel offered no expert opinions by affidavit, deposition testimony or live testimony at the (May 1) Fairness Hearing to demonstrate inadequacies within the monitoring program protocols.”

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

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