Emerging Litigation Podcast

When Chemical Crises Strike with Ed Gentle and Kip Benson

• Tom Hagy • Season 1 • Episode 94

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Soon after emergency response teams scramble into action to address chemical fires, explosions, or other toxic events, attorneys begin gathering and analyzing information either to mitigate corporate risk or to seek remedies for anyone impacted by such an event.

Listen to my interview with Edgar C. "Ed" Gentle III and Katherine "Kip" Benson of Gentle, Turner & Benson LLC, about legal activity that goes on in the immediate aftermath of a toxic event, using as a backdrop the recent chemical plant disaster that forced 17,000 Conyers, Georgia, residents to evacuate and many more to  shelter in place as a toxic plume hung stubbornly over the homes of as many as 100,000 residents. Ed and Kip draw on their deep experience resolving this type of litigation -- including the settlement of a 20-year-old disaster at the same location -- to discuss the flurry of activity that unfolds at law firms and inside legal departments within hours of a disaster. They also share the impact on such cases of a recent $600 million court-approved settlement of claims that followed the highly publicized toxic train derailment that occurred in East Palestine, Ohio, in early 2023.

This is Ed Gentle's second appearance on the podcast. He spoke with me on Episode 48 titled Medical Monitoring for Modern Times. He was the featured speaker on that subject for an HB CLE webinar distributed on the West LegalEdcenter, then Kip Benson joined him for an advanced level webinar on the Medical Monitoring Tort Remedy. You can download his article on the subject for free as published in the Journal of Emerging Issues in Litigation.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation, a brand of Critical Legal Content (a custom legal content service for law firms and service providers) and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at Editor@LitigationConferences.com.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Tom Hagy:

Welcome to the Emerging Litigation Podcast. This is a group project driven by HB Litigation, now part of Critical Legal Content and VLEX Company's Fast Case and Law Street Media. I'm your host, tom Hagee, longtime litigation news editor and publisher and current litigation enthusiast. And now here's today's episode. If you like what you hear, please give us a rating. And now here's today's episode. If you like what you hear, please give us a rating. Today we're going to give you an update on something that just recently happened.

Tom Hagy:

I wanted to explore from a legal standpoint what goes on in the immediate aftermath of a toxic event. One just happened on Sunday, september 29th, in Conyers, georgia, about 25 miles east of Atlanta. Correct me if I'm wrong. There was a catastrophic chemical reaction. I guess to you and me it would look like a fire, and I think that's what everybody called it. Technically, it's a chemical reaction which took place at a factory that makes chemicals for swimming pools and spas. It caused the evacuation of 17,000 people, who have been instructed to shelter in place.

Tom Hagy:

On October 3rd, the Atlanta Journal-Constitution wrote that a massive smoke plume continued to hover over Rockdale County and surrounding areas. The plume carries chlorine, chloramine, bromine and other chlorine compounds. I invited my guests to talk about. What's keeping attorneys busy at this early stage. Do the parties look to settle quickly? What kind of claims might we see? What are the plaintiff attorneys doing to gather information, identify people, map affected areas? What are the people doing to find representation? What might defense counsel be looking to do? Are they looking at early compensation for residents and what would be the pros and cons if they do? And then, what about medical monitoring? When you've got things like this that go on, you know if there's going to be a disease that takes a while to develop, so let's talk about that too. So a quick update, literally before the smoke has cleared. Residents have filed at least six suits seeking damages for as many as 90,000 people. The defendants are plant owner BioLab and its parent, kik Consumer Products. The suits are filed in state and federal court. They focus on health and property-related issues tied to the emergency evacuation and shelter-in-place orders, according to the Atlanta Journal-Constitution.

Tom Hagy:

I welcome back to the podcast Birmingham Alabama attorneys Ed Gentle and Katherine or Kip Benson of Gentle, turner and Benson LLC. Both attorneys bring years of experience administering billions of dollars worth of mass tort settlements. You can read about their deep experience and both of their impressive legal and scientific degrees. In the show notes I thought of Ed because I knew he handled the settlement of a case arising from the same location in Georgia in 2004. Even though I was told there wouldn't be math, that appears to be 20 years ago. Here's a quick take on what's transpiring in Georgia with Ed Gentle and Kip Benson of Gentle, turner and Benson. I hope you enjoy it. Tell me a little bit about what happened in 2004 and what your involvement was.

Ed Gentle:

I'd be happy to so. In 2004, may 25 and 26 of 2004, at the same site, but maybe a different part of the site, there was a burn, a fire, and the claimants evacuated a certain area, and then there was a bigger area in which there was an area of concern from the smoke and soot from the fire. And what happened in that case? There are two key lawyers, roger Orlando and Lou Garrison, and they had a fair number of clients and they asked for what's called a class action settlement, which means you have representatives of the impacted group and you get the court to approve them as named claimants for all the group and then, if you don't like that, if you're in the area, you can opt out or stay in, and most of the claimants stayed in. So they rounded up claimants, they brought their class action, they settled with. The company's name at the time was Chemtura C-H-E-M-T-U-R-A. It later went into bankruptcy and it may have sold this plant to someone else now, that'd be my expectation. And so they had a settlement and we administered it and paid it out.

Ed Gentle:

What they did, what you would expect in most of these cases, for example, train wrecks are very similar.

Ed Gentle:

You have an explosion or a fire, you have people evacuate or shelter in place, and then a lot of times they have a choice of filing two types of claims no-transcript.

Ed Gentle:

If, however, you're greatly impacted let's say you had some physical problems as a result say ingesting the smoke or, in this case, the new case the chlorine and have a doctor's care, maybe some long term medical problems you could file for what's called higher benefits or special benefits. Likewise, if the property had some severe damage, you could look to that. So that's the fork in the road for the claimants, usually in this case. So I think the words of the wise would be to keep your records, maybe to keep a log so you can document what happened to you and when and what the backup may be. So what's happening now, ironically, is a lot of these claimants in the new case are calling our firm because we had the old case and we're referring those lawyers to Roger and he told me the other day he's in the process of a wash and repeat, he's going to probably do the same sort of thing.

Tom Hagy:

That's what he's doing now. So that's the activity is identifying who may be affected, how they may be affected, which bucket they might fall in. Is that what's? Is this kind of the gathering of evidence stage for him?

Ed Gentle:

It is, and usually what he'll do is he'll have an expert. You saw, in this 2004 case there's a nice map that documents what was the evacuation area and what was the bigger impact area. So you usually get an expert. Usually they're experts in the wind dispersal of contaminants and they map out what's called the area of concern and that would be the set of claimants that are potentially in this case. Okay.

Tom Hagy:

All right. So residents are contacting you, you're referring them to him, and so what, I guess on the defense side, what would you anticipate is going on with the company and its firms? What might they be doing?

Ed Gentle:

What usually happens in these cases and I think CSX designed this and it was seen again in BP the defendants, shortly after this sort of an event, often set up a pay station and you have payments and often with checks, with a release on the back, and claimants can get in line and negotiate with the paymaster on how much they should be paid to release their claim. And that's done a lot in train wrecks. It was done in BP, as you'll remember, with Ken Feinberg getting $25 billion to do that, and the advantage to the defendant is you're using $0.01. That is, there's no legal fee for plaintiff lawyers being subtracted, so the money goes a long way. The claimants like it because they get paid immediately as opposed to one or two years into the future, and so that's a good way for the defendant to take some of the steam out of the case.

Tom Hagy:

I guess this one they're drawing a distinction. This was a chemical reaction, not a fire. That's right as a layperson when I see just stay indoors. That just always strikes me as I guess that's good. It just doesn't seem. It just doesn't give me a lot of reassurance, I guess.

Kip Benson:

It's certainly a good safety measure, though, yeah it's common in this kind of thing to have a shelter-in-place order the ones that are closer to the area. They may have evacuated which I believe they did, but the shelter-in-place, they want to keep you out of the air, so they want you to turn off your air conditioning, insulate yourself in an area where you may not be as exposed. So that is a common thing.

Ed Gentle:

It's really the only practical remedy for a big community.

Tom Hagy:

What do you expect to happen next? What usually happens is there's a lawsuit filed. I just wanted to drop this in here. Since I recorded this with Ed and Kip, there were already quite a few suits already filed, class actions on behalf of tens of thousands or as many as 100,000 folks against BioLab and Kik, the parent company. So things happen quick.

Ed Gentle:

Parties enter into what's called a mediation or some settlement talks. They try to work up a settlement. When that happens, they often bring it to Kip and me to fine-tune it to make sure it complies with certain rules. For example, you want to squarely state what part is for personal injury and what part is for property damage. Personal injury a lot of times has to go through a medical lien process, that is, medicare, medicaid, blue Cross and other private insurers. If you have personal injury, property damage doesn't require all that, so you can often pay that quicker. That's a big plus. The other thing they ask us to do many times is to look at it for fairness. We compare it to other cases we've had, because the court will be interested in any class settlement to decide whether it's fair and reasonable based upon all the circumstances. What about?

Tom Hagy:

on the medical monitoring side. Is it too early to talk about that, or would you anticipate there?

Ed Gentle:

As I remember, georgia is not a medical monitoring state. We only have 12, as you remember, tom Yep. A lot of times, though, the plant lawyers will ask for it. This might be a better candidate than the one 20 years ago, because chlorine is certainly an established oxygen and has some long-term impact, so it could be a remedy to explore. It may very well be explored. We haven't heard that from Roger, but over the years he's looked at that in different cases, so it could appear here.

Tom Hagy:

Now, at this point in the interview I asked Ed if there was anything else he wanted to talk about. He wanted to draw some comparisons and comment on the impact of the case. In East Palestine, ohio, where there was a, you might remember, there was a train derailment and there that released toxic chemicals and caught fire, and since then there's been class action lawsuits filed against Norfolk Southern Railway by residents, businesses and property owners within 20 miles of the derailment site. Recently a federal judge approved a $600 million settlement from Norfolk Southern to those affected by the derailment and some say this is probably the largest settlement in US history for a railroad disaster. Settlement's going to be distributed to all affected families. Each person is estimated to receive about $6,000 is what I'm reading. So back to Ed.

Ed Gentle:

If you look at these paydays in this 20-year-old case, they're very small. You can see that, for example, for individual claims they range from $60 to $230, property claims $70 to $245, business claims $1,000 to $4,000, and special damages for, say, 20% of the population. The East Palestine case really added a zero to what you normally see in these cases and I think that probably will bode well for future such disasters, be they train wrecks or factory fires or anything similar.

Tom Hagy:

That may have an impact on this case. We don't know for sure, but that case is going to influence others behind it, as you said, definitely.

Ed Gentle:

In that Ohio case the court tossed out a medical monitoring remedy.

Tom Hagy:

Okay, is that? I can't remember if Ohio is a medical monitoring state. It's not, it's not.

Ed Gentle:

It's a back to the future type of thing. You can't have a remedy until you're hurt. But I don't know if I'm going to be hurt if you don't monitor me. So there you have it. It's a dilemma.

Tom Hagy:

That concludes this episode of the Emerging Litigation Podcast, a co-production of HB Litigation, Critical Legal Content, VLEX Fast Case and our friends at Losty Media. I'm Tom Hagee, your host, which would explain why I'm talking. Please feel free to reach out to me if you have ideas for a future episode and don't hesitate to share this with clients, colleagues, friends, animals you may have left at home, teenagers you've irresponsibly left unsupervised, and certain classifications of fruits and vegetables, and if you feel so moved, please give us a rating. Those always help. Thank you for listening.