Thirty or so Avoca area residents traveled by chartered bus to New York City earlier this month just to sit in the audience at a two-hour court proceeding.
The contingent represented a group of 4,400 local plaintiffs involved in a massive environmental case involving the former Kerr-McGee Corp., which manufactured railroad ties in Avoca from 1956 to 1996.
Residents locally and across the country have started receiving compensation from a bankruptcy settlement with Kerr-McGee and related corporate entities that had been approved by the U.S. District Court based in New York City.
However, the Avoca area residents are back in New York court because they want to proceed with their own separate further legal action against Kerr-McGee, which the company argues was pre-empted by the terms of the bankruptcy settlement.
“Hopefully we put faces of victims in the courtroom. These aren’t faceless names and faceless issues,” said attendee Jim Haddock, whose late mother is among the plaintiffs.
The case also is of interest to plaintiffs in an unrelated suit involving the Luzerne County Kids for Cash scandal.
Disgraced former local attorney Robert J. Powell, who was charged in the juvenile justice corruption case, has negotiated a settlement with juvenile victims and their guardians that will require him to pay more than $4.75 million if his net worth is higher. Powell initiated the Avoca litigation and may receive additional legal compensation if the Avoca case is reactivated and results in additional awards in Luzerne County Court.
Powell, who was disbarred, has since brought in New York City firm Weitz & Luxenberg, P.C., to handle the environmental case. But Powell’s law firm — Powell Law Group, P.C. — is still acting as co-counsel in the Avoca litigation, according to paperwork filed in October by Weitz & Luxenberg in the New York court.
Kerr-McGee is trying to block the Avoca plaintiffs’ efforts to proceed with their original 2005 suit against the company in the Luzerne County Court of Common Pleas, which alleges contamination from the wood treatment plant caused diseases, illness and death.
Reactivation of the Luzerne County suit prompted Kerr-McGee to seek an order from the U.S. District Court in New York.
Lawyers for the company essentially said the Avoca residents accepted and received a settlement through the bankruptcy and can’t go back to the well. They asked the federal court to enforce the bankruptcy injunction and order the Avoca plaintiffs to dismiss their Luzerne County legal action and provide evidence why they should not be held in contempt for violating the injunction.
“The injunction covers all of the Avoca plaintiffs’ shifting theories and causes of action against Kerr-McGee Corp. Indeed, the federal government, the U.S. Bankruptcy Court and this court understood that it was intended to forestall such overlapping strike suits,” the company’s lawyers wrote.
The attorneys representing the Avoca residents argue they are legally permitted to seek full compensation and stress the residents have not been “made whole” by the bankruptcy settlement. Their filing cites a claimant who must still undergo medical monitoring but received a bankruptcy case settlement of only $1,608 and another with lung cancer who was paid just $225,121.
U.S. District Court Judge Katherine B. Forrest held an oral argument hearing Dec. 3, which was the proceeding attended by the bus group.
Haddock, a former Avoca mayor who now oversees Luzerne County’s clerk of courts and prothonotary’s offices, said his mother suffered from several medical conditions that he blames on carcinogens and chemicals used at the Kerr-McGee operation.
He and others believe Kerr-McGee is responsible for cancers in both adults and children, respiratory problems, heart conditions and rashes and other skin disorders.
“People had to watch loved ones die of cancer. Mothers lost children. I’ve seen the anguish, pain and suffering of what people have gone through,” he said.
Luzerne County Judge William Amesbury was assigned to the case here but has delayed the proceedings until early next year awaiting the federal court ruling, Haddock said.
Haddock said the bankruptcy settlement only covered about 32 percent of what the 4,400 Avoca plaintiffs had claimed in damages.
The total bankruptcy settlement was $5.1 billion, with 12.5 percent going to victims in seven groups across the country, he said.
Haddock estimated about 1,600 people who lived or worked near the Avoca property have received their payments to date.
Another 1,800 had been receiving Medicare or Medicaid and are awaiting a determination on the portion of their settlements that must be repaid to the government for prior medical care, he said.
Around 1,000 plaintiffs, including Haddock’s mother, have died, which means the settlements must be paid through estates, he said.
The suit filers and their descendants are “very hopeful” the county litigation will proceed, Haddock said.
“We’ve been fighting this fight for many years, and we’re not going to give up just because somebody tries to exercise their options in the law,” he said.
