Calhoun County Circuit Judge Joel Laird has decided to lay three of the most controversial points of the ongoing PCB lawsuit in the doorway of four other judges.
Forcing the plaintiffs and defendants into another bout of mediation before two retired Alabama judges Laird’s rulings, filed in Gadsden, do not impinge on other aspects of the ongoing, multi-faceted PCB litigation, such as the plaintiffs’ requests for medical monitoring, punitive damages and compensation for PCB-related property damages.
Laird said in a brief interview Monday that he wants the trial jury to hear additional testimony in the Sabrina Abernathy vs. Monsanto trial before he asks them to assess damages.
Solutia attorney Adam Peck said he was not prepared to comment on Laird’s ruling on cleanup. “We are still reviewing it,” he said.
He declined to comment on Laird’s two other rulings.
Plaintiff attorney Donald Stewart could not be reached for comment.
The jury has already held Monsanto and Solutia liable for contaminating Anniston residents’ properties and their blood in the first phase of the trial.
The jury also ruled that the pollution presents a “public nuisance” in the Anniston area.
Cleanup
In the first of three orders filed Monday morning in Gadsden, Laird partially granted and denied Monsanto and Solutia’s request to delay ruling on PCB cleanup in soil and waterways.
In the denial, Laird ordered Solutia to immediately begin cleanup on plaintiffs’ properties with PCB soil results of 10 parts per million or higher. He ordered the plaintiffs to comply with the cleanup, already required under an emergency federal order signed by Solutia and EPA in 2000.
However, Laird agreed to wait 45 days before he rules on soil and waterway PCB cleanup.
In his written order, Laird explained that he based his decisions on piles of briefs and sub-briefs filed by all of the parties in the case, as well as a 9-page special report he received last week from Samford University law professor Jill Evans.
Laird had assigned Evans to review numerous matters in the complex PCB litigation.
The 45-day wait is Laird’s answer to the recent lodging of a highly criticized deal between federal officials and the companies accused of polluting the Anniston area.
The draft federal deal, called a potential consent decree, is now awaiting a judgement by U.S. District Judge U.W. Clemon.
The lodging of the decree in federal court doesn’t necessarily pre-empt state court action, but it “nonetheless may affect the type and nature of relief the court may have the authority to order,” according to Evans’ report to Laird.
In her report, Evans abstained from commenting on how to fix the “federal-state conflict” regarding cleanup, but she said the conflict itself “underscores” the conclusion that granting a stay is the proper decision at this time.
Laird’s decision to delay his own ruling gives Clemon time to review the consent decree and the 800-plus letters submitted by residents and other interested parties during the public comment period.
No deadline has been set for Clemon’s ruling on the consent decree, and he has not begun reviewing it, according to a member of Clemon’s legal staff.
Meanwhile, allegations of conspiracy have dogged the consent decree, due to its contents, its timing and its elimination of state authority over the environmental cleanup.
The draft decree was signed by the Environmental Protection Agency, the Department of Justice, Solutia and Pharmacia (Monsanto’s parent company) two months ago.
The decree does not list Anniston on Superfund’s National Priorities List. Instead, it requires Solutia to conduct a full-blown investigation and risk evaluation of the PCB pollution in the Anniston area.
In past weeks, the decree has been severely criticized by city and state officials, as well as plaintiffs and environmental groups who say it is a “sweetheart deal” for the companies.
Recusal
In a second order, Laird deferred the companies’ request to recuse himself from the PCB trial to William Cardwell, Etowah County’s presiding judge.
In their motion for recusal, the defense attorneys had attacked Laird for unfairness and biased statements in the courtroom. The judge responded Monday with a vigorous defense of his actions and statements in the courtroom, but said that “rather than making such a determination himself,” he would leave the recusal decision in the hands of Cardwell.
In a related matter, the companies had also asked the Alabama Supreme Court to stay the entire trial until Laird ruled on the recusal motion. The justices ruled on May 23 that they would not consider the companies’ request for the next 21 days, to allow the circuit court a chance to make its own ruling.
It is unclear how Laird’s ruling will coincide with this week’s deadline set by the Supreme Court. Supreme Court officials could not be reached for comment Monday evening.
Mediation
In his third order, Laird forced the plaintiffs and defendants into another round of mediation, and placed former Alabama Supreme Court Justice Terry Butts and retired Circuit Judge Claud Neilson in charge of the mediation conferences. Laird scheduled the first conference for June 24.
In the eight years since the PCB lawsuit was filed, at least three mediation efforts have failed, including the recent one that culminated in furor in Laird’s Anniston courtroom and Solutia and Monsanto’s ensuing recusal motion and plea to the Supreme Court to stay the entire trial.
Solutia attorneys declined to discuss the recent settlement conference attended by company executives and attorneys.
However, court records indicate that during the conference, Laird threatened to hold one or more executives in contempt of court, and later accused one of the Solutia attorneys of making false statements.
In his second order Monday, Laird gave additional defense of his decision to use the threat of incarceration.
In the order, he said, “What defendants fail to point out is that this court, even after threatening incarceration, voluntarily withdrew all threats of incarceration and assured the defendants that no one would go to jail if they would simply make an effort to settle.”
He said that despite his belief that “defense counsel has been less than forthright and honest in this case … such statements have no bearing on this court’s determination of the true facts in this case.”
