The case has been more than seven years in the making.At times acrimonious, and for two years sprung out of the control of the presiding Anniston judge, it has grown and shrunk in size as new accusers joined the fray and others died.
On Monday, approximately 3,500 local people will take Monsanto Co. to court. They will fling the company's own literature about the hazards of its polychlorinated biphenyls back at 'em.
They claim property damages, personal injuries, fraud, mental anguish or a combination of these and other related claims. They ask the judge to order dredging of the waterways and removal of two old landfills, one of which contains an estimated excess of 10 million pounds of PCBs, which are probable carcinogens. Also, they ask the jury to assess punitive damages against the company. It is a complicated case, with, reportedly, more than a half-billion dollars at stake.
A settlement with Monsanto remains a strong possibility.
But the case will not answer every accusation. While 3,500 represents a sizeable portion of the Anniston population, a much larger group of residents is waiting for its own day in court. Approximately 20,000 residents recently signed up with a team of heavy-hitting attorneys, including Johnny Cochran and Jere Beasley.
But the new team, so far, has not stirred the dirt to the extent of the existing case in this highly unusual piece of PCB litigation, which is not a class-action lawsuit.
The lawyer who has nursed Sabrina Abernathy vs. Monsanto et al. since the beginning is Donald Stewart, the Anniston native with a short history in U.S. politics and a penchant for "David vs. Goliath" litigation.
His case is not just another massive tort lawsuit in Alabama. Those are a dime (or rather, a multi-million-dollar-jury verdict) per dozen.
Indirectly, this case brought Superfund to Anniston. In the past two years, red flags like results of the plaintiffs' blood tests and an expert witness' air monitoring for PCBs near the plant provided evidence to state and federal regulators that the contamination problem in Anniston was very big and very bad enough so to rate it as one of the worst-contaminated places in the country.
And yet, the litigation and the regulatory activities have been uneasy neighbors in western Anniston. Many of the plaintiffs have not participated in the federal health investigations and have resisted property cleanups conducted by company contractors. In court, Stewart will attempt to prove that the cleanup standards used by the Environmental Protection Agency and the Alabama Department of Environmental Management are woefully insufficient.
The Abernathy case also has played a role in three major national media articles in The Nation, US News & World Report and in The Washington Post last week. A computer search of The Anniston Star's electronic archives indicates that the PCB issue has bred more than 220 articles in The Star since the mid-1990s.
At any point, it could be settled. But sources close to the case say it will most likely make it to the opening day of trial on Monday.
Jury selection will begin at 9 a.m. at the Gadsden courthouse. Opening statements are expected on Wednesday.
The players
There are lawyers assisting the lawyers, and even lawyers assisting the judge, but three individuals have invested the most energy in handling Abernathy vs. Monsanto et al.One is Joel Laird, the Calhoun County circuit judge who presides over the case and who has often criticized the attorneys' behavior in his chambers. In one recent ruling, for example, he accused Monsanto's legal team of being "less than honest" with the circuit court and the Alabama Supreme Court. He was referring to the two-year holdup of the case, initiated by Monsanto in a last-minute writ of mandamus to the Alabama Supreme Court, six days before the case was set for trial in 1999.
Monsanto asked the Supreme Court to rule on a variety of motions, including separating the case into thousands of individual trials and ordering a change of venue. The Supreme Court didn't act on the writ of mandamus for two years. Then it ruled against Monsanto's requests and sent the case back to Laird.
Laird, a vocal Christian conservative, grew up in Roanoke and spent a lot of time in western Anniston, where his grandparents lived. At times he has pleaded and even demanded that the opposing parties attempt an amicable settlement. He says he still hopes that will happen. He says he worries about the complicated nature of the case and the difficult task facing the jury.
"This whole case is difficult. I don't know if there are any issues at all in this case that are not difficult," said Laird, during an interview last week. "Unfortunately, the legal system says there is no way I can help the jury deal with the evidence. I can only help them with respect to the law."
The second player is Adam Peck, a lead Monsanto attorney in the case. Last week, when contacted by The Star, he repeated the Monsanto mantra which is the keystone of the defense, yet provokes the most ire among western Anniston residents.
"The company acted responsibly," he said.
Peck has been involved in the case since 1996. He and other attorneys with the 40-member Lightfoot, Franklin & White law firm, have assembled 21 expert witnesses and have questioned at least 90 of the plaintiffs.
He said resolving the case before jury deliberations is still a "fluid exercise."
But first, the defense seeks to eliminate many of the plaintiffs' personal injury claims. "We still have a pending motion. Obviously, that's very significant," he said.
And then, of course, there is Stewart. He is not alone in presenting the case he also has the assistance of attorneys in Birmingham, Kentucky and New York City.
A former U.S. senator, Stewart has practiced law in Alabama for decades. In a 1978 Star article, his acquaintances described him as a solitary type, an aggressive litigator who "goes against the grain, both as a person and a politician." They described him as a "miracle-worker against the 'big mules.' "
For the Abernathy case, Stewart has gathered more than 3,000 blood tests, 1,000 soil tests and perhaps hundreds of thousands of historic documents pertaining to Monsanto's former chemical division, which manufactured PCBs from 1935 to 1972. The chemical division was spun off to form a new, independent company, Solutia Inc., in 1997.
Some of the corporate documents were posted on the Internet in the summer by the Washington D.C.-based Environmental Working Group, shortly after veteran journalist Bill Moyers aired an exposι on the chemical industry on PBS, called Trade Secrets. The environmental group plans a new Web article on Anniston contamination this week, which will be accompanied by national media coverage by CNN and National Public Radio.
Stewart was not the first attorney to gather alarming details about leaking PCBs from Monsanto, but until recently, he had assembled the largest-ever group of Anniston residents fighting Monsanto in court.
"It's the biggest case I've ever had," he said.
It is a truism that a strong accusation often has more rhetorical power than a denial. Stewart can be expected to present an aggressive case.
"It's really a tribute to the attorney that they got this case to trial," commented Jim Ziegler, co-counsel in a recent federal PCB lawsuit in Philadelphia that landed a $90 million jury verdict for property damages to a state building.
Because of the scientific barriers to proving an individual person obtained cancer because of PCBs, personal injury damages are the hardest to prove, Ziegler explained. "Monsanto has a long history of vigorously litigating these cases."
Stewart claims his plaintiffs have suffered unnatural diseases because of Monsanto's chemicals, such as cancer and reproductive problems. "They have enormous (PCB) body burdens," he said in a recent interview.
He said between 500 and 600 of his clients claim injuries ranging from cancer to thyroid problems to neurodevelopmental problems.
The plaintiffs
The Rev. Thomas Long has 63.8 parts per million of PCBs in his blood. He has more than 143 PPM of PCBs in his household dust.The EPA considers 50 parts per million in soil to be hazardous waste.
He lives less than a mile from the former Monsanto plant, retaining ownership of his property while his family lives elsewhere. And despite his pleas to the EPA, he has not been able to get an environmental cleanup yet.
Long says he always has been susceptible to a variety of illnesses, and he has chronic respiratory problems. "Your immune system was suppressed," his doctors told him, years before he even heard of PCBs.
He worries that the environmental situation in Anniston has fallen apart, despite the good intentions of the investigators from the Agency of Toxic Substances and Disease Control who visited him at his home on Montrose Avenue and tested his blood in 1995. "They said they were trying to help us," he said.
A plaintiff in the Abernathy lawsuit, Long said his ultimate hope is in Laird.
"I'm looking for the judge to be the judge," he said. "I personally feel the situation is out of order."
Yet Long is not among the 25 plaintiffs who will be called to testify in the first phase of the Abernathy case.
These 25 will be the essential individuals to guide the jury's decision on whether Monsanto should be held liable at all for property damages. "We are trying everything but the personal injury claims at this time," Laird said.
Based on testimony and other evidence, "the jury would first consider liability and causation for damages, and then the amount," he said.
Personal injury claims may be impacted soon by a ruling from Laird on Monsanto's motion to dismiss all those claims that do not allege present injuries. Laird said he plans to rule on the motion by the end of this week.
Many speculate that Monsanto will settle the case before long, but activists such as David Baker, who asked former EPA Secretary Carol Browner for a federal cleanup in 1998, said they will be ultimately unsatisfied if the toxic landfills are not removed from western Anniston or if the company does not assist the community with a health clinic.
"That's what we need," Baker said.
Several years ago, Stewart assessed the potential claims of his clients at $500,000 apiece and the environmental cleanup at $500,000,000. Those numbers were not intended as final estimates.
It's not about money, at least not now, said Mark Morgan, leaning out of his car and talking on a frigid morning two days ago. Morgan is an Abernathy plaintiff who claims personal injuries, such as skin rashes on his body.
It's about the company admitting its responsibility for poisoning us, he said.
