Lawyers representing 4,300 past and present Avoca-area residents filed hundreds of pages in court documents this week arguing why they should be allowed to reactivate an environmental contamination suit in Luzerne County.
The Avoca plaintiffs are appealing a February ruling by a New York federal judge ordering them to drop the Luzerne County suit seeking compensation for diseases and illnesses allegedly caused by the former Kerr-McGee Corp.’s wood treatment operation, which operated in the borough from 1956 to 1996.
U.S. District Court Judge Katherine B. Forrest concluded the Avoca plaintiffs must dismiss the Luzerne County suit and “make no attempt” to file similar claims because their acceptance of compensation through a Kerr-McGee bankruptcy settlement processed in New York barred them from additional action.
Kerr-McGee sought the action awarded by Forrest, arguing the Avoca plaintiffs can’t go back to the well a second time.
But in the new paperwork filed in the Second Circuit U.S. Court of Appeals in New York, the Avoca plaintiffs maintain the detailed wording in the bankruptcy settlement involving future claims did not prohibit them from pursuing the pending action in Luzerne County Court.
The Avoca plaintiffs consciously decided not to object to the bankruptcy settlement because the wording in the agreement kept the door open for them to revive the Luzerne County case, which was filed in 2005 and stayed in 2009 pending the outcome of the bankruptcy, the new filing says.
The Avoca plaintiffs “knew full well” the bankruptcy settlement “would not make them whole,” the new filing says.
“It would have been natural and necessary for the Avoca plaintiffs to object to a settlement that compromised all of their claims for a relatively small recovery.”
Former Avoca Mayor Jim Haddock, whose late mother is among the plaintiffs, said Thursday that the bankruptcy settlement covered about 32 percent of what the Avoca plaintiffs had claimed in damages.
The new filing asserts Forrest wrongly allowed Kerr-McGee to “escape” and “walk away scot-free from its liabilities outside the bankruptcy.”
It described her opinion as “visceral” and her order to drop the Luzerne County case as “Draconian.”
“The Avoca plaintiffs respectfully request that this court reverse the district court so that they can pursue the justice they so richly deserve for lives endangered and ruined by corporate greed,” the filing says.
Kerr-McGee will have 91 days to file a response brief, Haddock said. The company’s lead counsel could not be reached for comment Thursday.
Haddock said the Avoca plaintiffs retain hope they will prevail in court.
The new filing describes “scars left in the plant’s wake.” Many have died, while others are “left with bodies riddled with cancer and other horrible afflictions,” it said.
“We fought this contamination close to 15 years now and have taken on what appeared to be insurmountable odds and big companies. We hope we will be successful,” said Haddock, who currently oversees the county’s civil and criminal court records offices.
The appeal was filed by Weitz & Luxenberg, P.C., a New York City firm serving as lead counsel in the case, Haddock said.
The continuing role and potential financial stake for Powell Law Group P.C., which initiated the Avoca litigation, is unclear due to confidential agreements between that firm and Weitz & Luxenberg.
Robert Powell, the Powell Law Group’s creator, was disbarred by consent and convicted of failing to report a detention center kickback scheme in the county “Kids for Cash” juvenile justice corruption case. Powell has negotiated a settlement with juvenile victims and their guardians requiring him to pay them $4.75 million and possibly up to $2.5 million more if his net worth exceeds $4.75 million by the end of this year.