Richmond Virginia Personal Injury Lawyer - Toxic Substances

TVA Duplicity Re: Coal Ash Spill

Michael Phelan — Wed, 29 Jul 2009 12:59:06 GMT

During a recent hearing before Congress, the head of the Tennessee Valley Authority acknowledged a 'larger cultural problem' at the agency as an inspector general's report says it allowed its lawyers to stifle a $3 million study into the cause of a massive coal ash spill to limit its legal liability. The report also said the nation's largest public utility failed for more than 20 years to heed warnings that might have prevented the spill." The breach "of 5.4 million cubic yards of toxic-laden coal ash from the earthen dams and holding ponds at TVA's Kingston Fossil Plant into the Emory River and lakeside homes has raised questions about the risks and lack of regulation of hundreds of similar sites around the country."

Some citizens might be shocked to hear that our country's largest public utility would hide safety information from the government and the public. Unfortunately, this practice is all too common. Moreover, companies have been known to spend much more money on lobbyists and judicial elections than it would have taken to make thier products or facility safe. Indeed, in neighboring West Virginia, a coal company allegedly spent millions of dollars to buy a state Supreme Court seat for an elected justice, who would be seated in time to vote on the coal company's appeal of a large verdict against the coal company. Fortunately, the United States Supreme Court ruled that the coal company's judge must recuse himself from the case. Otherwise, life would likey have imitated art, and we may have seen the real-life version of John Grisham's book, The Verdict, unfold in West Virginia.

If this represents business as usual, why in the world would we want to limit citizens' Seventh Amendment rights to trial by jury? This is what the tort reform groups wish to do. They are running advertisements on the television and at the movie theaters hoping to shift the issue to a false bogeyman, trial lawyers. The real issue is what is the best way to change intentionally unsafe or illegal corporate behavior? I believe the answer is to hold the wrongdoer accountable for the wrongful acts. As the founders of our country recognized, the legal system is the most civilized forum for seeking this accountablility.

Originally posted at InjuryBoard by Michael Phelan

Electronic Cigarettes Come Under Scrutiny

Zev Antell — Fri, 24 Jul 2009 11:48:34 GMT

The debate about the deleterious effects of cigarette smoking seems to be largely settled. The public at large is now deluged with anti-smoking messages and cigarette packs are required to prominently display very ominous warning labels. Finally, in the last 15 years tobacco companies have been hit time and time again with large civil judgments in courts across the country. All that said, the myth of the healthy (or healthier) cigarette endures.

According to a recent New York Times article a product commonly referred to as an "electronic cigarette" has recently come under FDA scrutiny. Electronic cigarettes are an alternative nicotine delivery system. Whereas traditional tobacco cigarettes are lit, smoked, and inhaled, electronic cigarettes are battery operated and are not lit. Perhaps the notion is that that the user gets both nicotine and the familiarity of a traditional cigarette without the health risks of actually smoking. However, according to the FDA there are real concerns about the heath effects of electronic cigarettes.

The Times’ article points to FDA analysis that raises questions about the contents of the products. The intimation is that they contain certain known carcinogens. As the products are purportedly manufactured in China, a health official quoted in the article cites an additional worry about quality control.

Perhaps the article's most worrying point is that electronic cigarettes may be both accessible and appealing to kids as the products appear to come in fruit flavors and are sold online and in shopping malls.

Originally posted at InjuryBoard by Zev Antell

Toxic Denture Creams

Michael Phelan — Thu, 09 Jul 2009 10:25:59 GMT

Many years ago, I handled a product liability case against a major pharmaceutical corporation in which our client's physicians opined that she developed a fatal pre-leukemic condition as a result of her exposure to benzene in her denture adhesive. Through discovery, we learned that the manufacturer and its predecessor corporations knew of the existence of benzene in its product as far back as the 1970's. Indeed, in the late 1970's scientists employed by the manufacturer urged the company in writing to "get the benzene out." You can imagine my surprise to learn that in 2009 denture cream manufacturers, such as GlaxoSmithKline PLC (Poligrip) and Procter and Gamble Co (Fixodent), are being sued for the failure to warn consumers that their denture creams contain toxic levels of zinc and have the potential of causing zinc poisoning. Studies show that zinc buildup causes zinc poisoning and neurological problems.

Over 35 million Americans use denture creams or adhesives. Because one's gums are so permeable, dangerous toxins in denture adhesives are readily absorbed into the blood stream. Lawsuits have been filed in California, Colorado, Florida, New York, Ohio, Oklahoma, and Tennessee. The litigation was referred to the Multi District Litigation panel which held a hearing in Louisville, Kentucky on May 28, 2009.

According to the National Academy of Sciences, the highest amount of zinc that can be safely tolerated is 40 milligrams per day. Recommended daily allowances, according to gender, are 11 milligrams per day for men and 8 milligrams per day for women.

Fixodent and Poligrip contain between 17,000 and 34,000 micrograms per gram. Thus, users of these products may be exposed to approximately 330 milligrams of zinc per day. Sypmtoms of zinc poisoning include dizziness, lethargy, muscle weakness, mysterious pain, loss of sensation, tingling in the hands and/or feet, loss of urinary control, paralysis, anemia, blood marrow syndromes, MS, and other serious conditions.

If you are a denture adhesive user and you suspect that you have symtoms of zinc poisoning, see your doctor immediately, and whatever you do, hold onto your containers of denture adhesive. You may need to have them tested for zinc content. You should also save all proof of purchase of the denture adhesives.

Originally posted at InjuryBoard by Michael Phelan

Tort Reform Means Less Safety

Michael Phelan — Fri, 12 Jun 2009 08:34:09 GMT

The naive among us who believe that limiting our Seventh Amendment right to trial by jury would benefit most citizens probably also supported Newt Gingrich's plan in the 1990's to privatize the Food and Drug Administration (FDA). Then Speaker Gingrich advocated disbanding the FDA and giving the pharmaceutical, medical device, and food industry oversight of their own industries. What a disaster that would have been!

Anyone who believes that products would not be less safe or the environment more toxic without the threat to manufacturers and polluters of lawsuits is similarly naive. One would have to believe that, left to their own devices, these manufacturers and polluters could be trusted to do the right thing, i.e., to fairly balance the risks of harm against the benefits of the product, and to always choose to adopt reasonable safety precautions. A pending case in the United States District Court for the Southern District of Indiana is a typical example of the dishonesty and abuse by manufactureres and polluters that has become far too common in toxic tort and product liability cases. In this case, the plaintiff property owner, 110 West, LLC allged that Red Spot Paint & Varnish Co. Inc.'s manufacturing operations contaminated plaintiff's property with extremely dangerous chemicals, including benzene, a solvent known to cause leukemia and other blood disorders and cancers. One issue was whether Red Spot and its law firm, Bose, McKinney & Evans, LLC, "lied or misrepresented the truth about Red Spot's use of ...[chlorinated solvents]." Naturally, in discovery, Red Spot was asked to identify all chemicals used in its manufacturing process. Red Spot not only used the chlorinated solvents in its process, but it also possessed reports of soil samples showing that the solvents had contaminated the soil and groundwater.

So, of course, Red Spot and its lawyers turned this information over in discovery, right? No, what Red Spot and its lawyers did was to hide the crucial documents and state in writing, under oath, among other misrepresentations, that "Red Spot's operations have not included the use of ...chlorinated solvents." Fortunately for 100 West, LLC and anyone interested in truth and non-toxic drinking water and soil, the lawyers for 100 West were persistent. They obtained the truth from the EPA, which had documented, including with photos of leaking solvent waste drums, that Red Spot had dumped over 96 gallons of hazardous chemical waste into the environment. The EPA informed the plaintiff's lawyers that Red Spot's lawyers at Bose McKinney had received a copy of the Red Spot EPA file. Upon learning this, the court ordered Red Spot to turn over the file, however, the court later concluded that the Bose McKinney lawyers "'sanitized' the EPA RCRA file by pulling out the most damaging documents."

The federal judge found that Red Spot committed fraud and made misrepresentations to the court. "Red Spot has made a mockery of the discovery process and has subjected the truth to ridicule." The court's lengthy opinion is replete with examples of Red Spot witnesses lying under oath and of Red Spot's lawyers being complicit in those lies, having possessed enough documentary evidence to know the testimony was untruthful. The court issued the most severe of sanctions under Fed. R. Civil P. 37 and found Red Spot liable for contaminating plaintiff's property and responsible for remediating the contamination. The court also ordered Red Spot and Bose McKinney to split the cost of 100 West's legal fees for the three years of discovery that preceeded the sanctions order.

Red Spot was not going to voluntarily clean up its toxic mess. And the EPA obviously had no success in forcing Red Spot to do so. Only through the litigation process was 100 West LLC able to receive justice, and it took years of litigation caused by Red Spot's abusive discovery tactics to get justice. The tort reformers want to make it easier for defendants like Red Spot and harder for plaintiffs like 100 West. Does that seem right?

Originally posted at InjuryBoard by Michael Phelan

TN Coal Plant That Spilled Toxic Coal Ash Knew About Leaks

Michael Phelan — Fri, 09 Jan 2009 09:55:03 GMT

My last blog was about the coal-burning power plant responsible for the massive spill of coal ash in East Tennessee late last month. The chief executive of the Tennessee Valley Authority acknowledged Thursday that the plant’s containment ponds had leaked two other times in the last five years but had not been adequately repaired.

The TVA official, Tom Kilgore, told the Senate Environment and Public Works Committee that the authority had found that dikes holding millions of cubic yards of toxic coal ash mixed with water at the authority’s Kingston Fossil Plant had allowed noticeable “seepage” in 2003 and 2005. The authority chose inexpensive patches rather than a more extensive repair of the holding ponds, possibly contributing to the catastrophic failure on Dec. 22, Mr. Kilgore said. Here we go again--profits over safety!

Mr. Kilgore also testified that the December breach appeared to have occurred at a different site from the one where the earlier leaks happened, so it was not clear whether more extensive repairs could have prevented the disaster. Nonetheless, he said, “the most expensive solution wasn’t chosen,” adding, “Obviously, that doesn’t look good for us.”

The toxic flood caused by the collapse of the holding pond destroyed three homes and damaged several dozen properties. There were no immediate injuries or deaths, but the water supply has been compromised by toxic metals, including arsenic.

The Senate Environment and Public Works Committee chair, Senator Barbara Boxer, said the spill dramatized the need for strict regulation of fly ash and other waste from coal-fired power plants and for closer oversight of the T.V.A. Ms. Boxer was strongly critical of the Environmental Protection Agency for failing to declare coal ash a hazardous waste and for refusing to set national standards for its storage and disposal.

Ms. Boxer, who passed around the committee table a large Mason jar of sludge from the spill, also accepted a share of the blame for the Tennessee mess. She said she had been chairwoman of the environment panel since 2007 but had paid no attention to the T.V.A., one of the nation’s largest producers of electricity, and its hazardous byproducts.

She and several other committee members said they would press for new coal ash regulations, including a requirement that it be stored in lined pits and dried out so that it could not cascade into towns and rivers.

More than 1,300 dumps across the United States contain billions of gallons of fly ash, which contains heavy metals including arsenic, cadmium, chromium, lead and mercury. In sufficient concentrations, these metals have been linked to human cancers, respiratory diseases, nervous system disorders and reproductive problems.

Originally posted at InjuryBoard by Michael Phelan

Toxic Coal Ash Spill Threatens East Tennesssee

Michael Phelan — Tue, 30 Dec 2008 11:37:43 GMT

This past Monday, the Tennessee Valley Authority disclosed to the New York Times a 2007 inventory of toxic materials that the Kingston Fossil Plant, a T.V.A. coal-fired electric plant 40 miles west of Knoxville, had deposited into a holding pond. The holding pond failed last week, flooding 300 acres of East Tennessee. The inventory showed that the plant deposited more than 2.2 million pounds of toxic materials into the pond in just one year. In that one year, the plant's toxic waste included 45,000 pounds of arsenic, 49,000 pounds of lead, 1.4 million pounds of barium, 91,000 pounds of chromium and 140,000 pounds of manganese. And that's just one year's worth of dumping. The pond contained many decades' worth of deposits. Those metals can cause cancer, liver damage and neurological complications, among other health problems.

The Kingston plant uses 14,000 tons of coal a day. Its refuse, the coal ash, rises 55 feet above the banks of the Emory River, which flows into the Clinch and the Tennessee Rivers. The pond is contained by an earthen dike which gave way last Monday after a period of heavy rain. The T.V.A. estimates that 5.4 million cubic yards of ash muck slid away, covering 300 acres and knocking a nearby home off its foundation. Thirty-six homes sustained damage.

A full week after the spill, the T.V.A. and the EPA issued a joint statement recommending that direct contact with coal ash be avoided and that children and pets should stay away from affected areas. Understandably, local residents are upset that the authority was so slow to release information about the contents of the toxic ash and the water, soil, and sediment samples taken around the area of the spill. The EPA reported "very high" levels of arsenic have been found in water samples near the site of the spill. Complete results have been released for only two samples, both taken from a drinking water intake site upstream from the spill. Moreover, the T.V.A. increased the flow of the Tennessee River to keep the ash from approaching the drinking water intake for Kingston. Thus, test results from samples taken upstream from the spill are misleading. The people downstream from this spill have reason to be worried.

Originally posted at InjuryBoard by Michael Phelan

KBR Accused of Exposing Our Troops to Known Toxic Chemical

Michael Phelan — Tue, 23 Dec 2008 10:38:32 GMT

The CBS Evening News(12/22, story 8, 3:30, Smith) reported that on since the beginning of the war in Iraq, may be facing yet another scandal." CBS added, in April, 2003, James Gentry of the Indiana National Guard arrived in southern Iraq to take command of more than 600 other guardsmen. Their job: Protect KBR contractors working at a local water plant. Guardsman Gentry stated, "We didn't question what we were doing. We just knew we had to provide a security service for the KBR." Today Gentry is dying from a rare form of lung cancer which he believes was caused by months of inhaling hexavalent chromium, an orange dust which is part of a toxic chemical found all over the Iraqi plant. At least one other Indiana guardsman has already died from lung cancer and others are said to be suffering from tumors and rashes consistent with exposure to the deadly toxin. CBS "has obtained information that indicates KBR knew about the danger months before the soldiers were ever informed. ... A new internal Army investigation obtained exclusively by CBS News says the Army's medical response was prompt and effective. But even after a briefing today, Indiana Senator Evan Bayh says that KBR has a lot to answer for." KBR has been paid more than $28 billion by our government since the beginning of the war in Iraq [that's BILLION not million!]. You may recall that KBR is an offshoot of VP Cheney's old firm, Haliburton, and that the administration awarded the $28 billion to KBR on a no-bid basis. It is outrageous that KBR knowingly exposed our brave troops to a deadly toxin. This is a perfect example of why this country needs a tort system that is free of over-regulation by the government. Because, if the current administration had its way, injured citizens like Guardsman Gentry would be out of court. KBR would either be immune from liability or the federal government would be deemed to have preempted the plaintiff's right to sue for damages. I encourage everyone to read the Seventh Amendment. The framers put it in the Constitution for a very good reason.

Originally posted at InjuryBoard by Michael Phelan

Grass Really is Greener....

Zev Antell — Mon, 08 Sep 2008 17:35:42 GMT

Litigation involving lead paint has been with us for decades. Long ago it became recognized that when ingested, lead could have deleterious effects on the human body. Essentially everyone knows by now it is best to keep our children away from lead and especially important to make sure it does not find a way into their mouths. This is all well and good because less time spent around lead paint probably means more time spent outside. That is, unless your child has reason to be playing on artificial turf. Strange but true, artificial turf prominently contains lead. The lead as an ingredient is said to help the turf maintain its green color. According to a recent Los Angeles Times article, California, along with the city of Los Angeles, have filed suit against three turf producers alleging they failed to disclose the existence of lead in their product in violation of state law.

Artificial turf, while the bane of many sports fan's existence, is undeniably versatile. It allows schools and parks to keep fields open with little concern about wear and tear. Turf fields do not need to reseeded, mowed, or relined, and they can be used in the heaviest of rains without developing a single puddle. The only major safety concern up until now had been the occasional injury knee injury and constant rug burns. At least where older fields are concerned, that may no longer be the case.

The times article stated that the lead contained in artificial turf only becomes dangerous as a field ages and the lead takes on dust like properties. Once that happens, it can make its way into the blood stream through contact with skin or even through normal breathing. Kids are not the only ones whom lead is said to harm. It has been linked to cancer and reproductive health problems.

No one is suggesting we stop enjoying the outdoors or stop playing sports, but that turf field we thought would last forever may need replacing sooner rather than later.

Originally posted at InjuryBoard by Zev Antell

West Virginia Governor Exposed as Pawn of DuPont

Michael Phelan — Wed, 13 Aug 2008 12:08:01 GMT

In a story that sounds eerily like the John Grisham book, The Appeal, files released from West Virginia Governor, Joe Manchin's, office reveal that he is in bed with DuPont Company trying to get the West Virginia Supreme Court to overturn a $382 million verdict against DuPont. The case arises out of DuPont's alleged dumping of toxic arsenic, cadmium, and lead from its zinc-smelting plant in Spelter, W.Va. The underlying case alleged that these toxins entered the water supply and that DuPont deliberately endangered thousands of residents of Spelter. Last October, a jury in Harrison County, W.Va. found that DuPont, indeed, had deliberately subjected the Spelter residents to toxic poisons and ordered the company to pay nearly $382 million to monitor nearly 8,000 residents in the area for signs of cancer, to clean up the site, and pay punitive damages.

On June 24, 2008, DuPont appealed the verdict to the W.Va. Supreme Court.

Gov. Joe Manchin III, a Democrat in his first term who is up for re-election in November, filed a friend-of-the-court brief the same day, pressing the Court to review the $382 million judgment against the DuPont Company. The Governor said he was not taking sides, but acting in the interest of due process. If you believe that, I have a bridge I'd like to sell you.

Documents from the governor’s office show that Mr. Manchin consulted with DuPont before filing the brief, and DuPont officials say the governor even asked them to provide him with a draft brief.

It was the first time a West Virginia governor had taken such action in a case in which the state was not a party. Mr. Manchin’s actions rightfully angered plaintiffs, who argued that the executive branch was inappropriately pressuring the judicial branch.

The governor’s spokesman said that Mr. Manchin only wanted to ensure that cases involving punitive damages received a full airing from the Supreme Court and that he was not weighing in on behalf of DuPont.

But new documents reveal a more complicated picture.

The New York Times reports that on June 2, the governor met with the vice president of DuPont and one of the company’s lawyers to discuss the brief, according to records of the meetings obtained through the Freedom of Information Act.

The governor also spoke on the phone with DuPont’s chairman and chief executive on Nov. 20, 2007, less than a month after the verdict, according to the documents.

Shortly before the governor filed his brief, DuPont lawyers provided his office with two draft briefs that made many of the same arguments he later used in his brief.

The day Mr. Manchin filed the brief, his office also requested assistance by e-mail from DuPont with the procedural requirements for filing.

When questioned by the plaintiff’s lawyers about DuPont’s draft brief, the governor’s office said that some of the e-mail correspondence between the company and his office had been erased, according to documents from the governor’s office.

In an interview, however, Carte Goodwin, Mr. Manchin’s lawyer, said that as often happens, the draft brief from DuPont came to the governor’s office unsolicited. But a DuPont spokesman, Daniel A. Turner, said in an e-mail message that it was the governor who had asked DuPont to provide a draft brief. Somebody is lying!

The documents from the governor’s office also reveal overlap between Mr. Manchin’s staff and DuPont. Mr. Manchin’s executive assistant, Peggy Ong, is a former DuPont employee. While there, Ms. Ong was involved with the company’s handling of the Spelter case and its conducting community outreach regarding the contaminated site, according to company documents.

The revelations of Mr. Manchin’s involvement in the DuPont case come against a backdrop of larger concerns raised recently about the independence of the state’s legal system. In the last year, two Supreme Court justices have come under scrutiny for ties to company executives that had cases pending before the court.

Prof. Stephen Gillers, who teaches legal ethics at New York University School of Law, said it was unusual and inappropriate for the governor, instead of the attorney general, to get involved in such a case, and that after searching state court records, he could find no example of a similar intervention by a governor.

“One plaintiff, Carolyn Holbert of Erie, called the governor’s actions “a total betrayal.”

Ms. Holbert, 62, a retired switchboard operator whose back porch looks out onto the Spelter site and who grew up just miles from the plant, said that an aunt, an uncle and three of six siblings had died from cancer.

“The governor says he is not taking sides,” Ms. Holbert said. “But he is helping DuPont drag its feet, and people are dying while they wait for help.”

In The Appeal, a fictional chemical company illegally dumped chemicals into the ground for decades. The chemicals got into the water supply and rendered the county water not only undrinkable, but also cancer causing. In response to a $48 million verdict in one case, the company undertakes dirty tactics to compromise the Mississippi judiciary, all in an effort to buy a win on appeal. As they say, life imitates art. Gov. Manchin should recognize the separation of powers between the executive and judicial branches and stay out of the Spelter case. Such sleazy tactics as set forth in the Grisham book are even more dangerous in states like Mississippi and West Virginia where judges are elected. I believe it is a terrible idea to force judges to become politicians. This increases the potential for the judiciary to be corrupted by lobbyists and money.

Originally posted at InjuryBoard by Michael Phelan

Nanotechnology: Are Carbon Nanotubes the Modern Asbestos?

Michael Phelan — Wed, 21 May 2008 12:16:00 GMT

The National Institute for Occupational Safety and Health is concerned that the tiny nanoparticles used in nanotechnology pose serious health risks for workers employed in the nanotechnology industry. A study issued this week focuses on one type of nanomaterial, carbon nanotubes, and seeks to determine if nanotubes biologically behave like asbestos. In other words, does inhaling carbon nanotubes cause irreparable and fatal effects to workers such as severe lung fibrosis or scarring, lung cancer, including cancer of the lining of the lungs or pleura called mesothelioma. Some animal studies have even shown effects similar to those of asbestos?

Carbon nanotubes are tiny, cylindrical, manufactured forms of carbon. There is no single type of carbon nanotube. Carbon nanotube exposures can potentially occur not only in the process of manufacturing them, but also at the point of incorporating these materials into polymer composites, medical nanoapplications, and electronics.

The publication of the recent study contributed to the decision by the Japanese Ministry of Health, Labor and Welfare to issue a notice which instructs those involved in the manufacture, repair and inspection of nanomaterials that the processes should be carried out under either sealed, unattended or automated conditions, or a local exhaust system should be installed.

Originally posted at InjuryBoard by Michael Phelan