Avoca environmental contamination suit dropped in Luzerne County Court

By Jennifer Learn-Andes - jandes@timesleader.com | May 18th, 2017 6:39 pm

A federal New York City judge had stern words when thousands of Avoca area plaintiffs initially resisted her order to drop their environmental contamination litigation in Luzerne County Court and asked her to reconsider.

“This is outrageous,” U.S. District Court Judge Katherine B. Forrest wrote by hand in her order this week. “Comply with the court’s order. It’s clear on its face. Failure to do so could result in serious sanctions.”

In another related order, Forrest wrote that failure to drop the county suit was a “very serious” matter and that penalties may be immediately imposed against both legal counsel and the Avoca plaintiffs if they did not comply by Thursday.

Backed against a wall, attorneys representing the 4,300 past and present Avoca area residents submitted a request to Luzerne County Judge William Amesbury to discontinue the suit seeking additional monetary awards for diseases and illnesses allegedly caused by the former Kerr-McGee Corp.’s wood treatment operation.

In compliance with Forrest’s order, they asked Amesbury to dismiss the suit with prejudice, which means the same claims can’t be refiled.

Amesbury said he signed an order granting the request Thursday.

Former Avoca Mayor Jim Haddock, whose late mother is among the plaintiffs, said Thursday lawyers had been reviewing all options. He expects lawyers will send a letter briefing the suit filers on the situation.

“I haven’t had a chance to discuss this with legal counsel,” said Haddock, who has taken on the role of spokesperson for the plaintiffs.

Haddock, who currently oversees the county’s civil and criminal court records offices, stressed the 2005 county suit was intended to seek full victim compensation for cancer, respiratory problems, heart conditions, rashes and other medical problems blamed on carcinogens and chemicals used at the Kerr-McGee operation for four decades until 1996.

The Avoca plaintiffs and victims in other groups across the country received payments from a $600 million pot set aside in a $5.1 billion bankruptcy settlement involving Kerr-McGee and related entities. However, Haddock said that settlement covered only about 32 percent of what the Avoca plaintiffs had claimed in damages.

The matter came before Forrest because Kerr-McGee and related entities filed an action in New York court to block revival of the Luzerne County suit, arguing the plaintiffs had accepted a bankruptcy settlement and could not go back to the well to obtain more.

Forrest agreed and ordered the plaintiffs to drop the county suit in February 2016, saying a bankruptcy settlement injunction barred them from additional legal action.

The Avoca plaintiffs appealed that ruling to the Second Circuit U.S. Court of Appeals, also in New York City, and obtained a freeze on Forrest’s order pending the outcome. The appeals court issued a ruling last month dismissing the appeal based on a lack of jurisdiction.

On May 11, the Avoca plaintiffs returned to Forrest’s court, filing a lengthy revised complaint asking the judge for more time and to reconsider her decision based on additional legal arguments.

Forrest responded on May 16 with the handwritten order denying the requests.

Kerr-McGee had filed paperwork in Forrest’s court on May 12, asking the judge to hold both the Avoca plaintiffs and their legal counsel in contempt and force them to immediately start paying $5,000 per day initially and $20,000 per day starting May 12 — in addition to Kerr-McGee’s legal fees — until the 2005 suit was dropped.

Powell Law Group, P.C., had initiated the 2005 suit. New York City-based Weitz & Luxenberg P.C. was brought on as co-counsel in 2012, after Powell Law founder and Hazleton area native Robert Powell got in trouble as part of a federal judicial corruption probe. An attorney from Dunnington, Bartholow & Miller LLP, also in New York City, was later added to the team.

Haddock noted the Avoca plaintiffs were not required to pay more to pursue reactivation of the county suit because their agreement said Powell Law was entitled to 40 percent of any Avoca recovery. Powell Law’s fee-sharing agreements with Weitz & Luxenberg and other firms assisting in the case have not been made public.


By Jennifer Learn-Andes


Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.