As PCB lawsuits in Pittsfield rise to nine, we ask ‘A Civil Action’ lawyer Jan Schlichtmann: How hard are these cases to prove?

Jun 09, 2023

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The Hill 78 and Building 71 landfills near Allendale Elementary School, to the right, in Pittsfield contain PCBs from the cleanup of the Housatonic River. Two city mothers have filed lawsuits against General Electric Co. and Monsanto for PCB pollution that they alleges directly led to their children's cancers. There are now nine total complaints filed.

Jan Schlichtmann is known for the personal injury cases he took on in the early 1980s when residents of Woburn started to connect illnesses and children's leukemia to chemicals in public drinking water. Two companies, it turned out, were responsible for waste that seeped into the water supply.

Jan Schlichtmann, whose struggle to bring industrial polluters in Woburn to justice was documented in the book and movie, "A Civil Action," spoke to The Eagle about the challenges of trying such cases. When asked about the PCB lawsuits now filed in Pittsfield, he said the allegations might be hard to prove.

In a legal drama that played out over years, Schlichtmann and his legal team ran out of money fighting much deeper pockets, went into debt and failed to win significant financial victories for the families.

Jonathan Harr captured Schlichtmann’s bruising travails in his book, “A Civil Action.” In the movie version, John Travolta plays Schlichtmann.

There was failure, but not all was lost. New evidence later surfaced and the Environmental Protection Agency sued the companies and forced them to pay $69 million to clean up the pollution.

Schlichtmann later successfully took on other injury cases linked to contamination, including one in Tom’s River, N.J., where children's cancers were tied to water pollution from three companies.

Back in the '80s, while Schlichtmann was working on the Woburn cases, much of the PCB pollution from General Electric Co.’s electrical transformer business in Pittsfield had already spilled out into the city in various ways.

That pollution would despoil the Housatonic River from Pittsfield downstream into other towns. It would prompt warnings that continue today to not eat fish from the river. And it would force an agreement between the EPA and GE for a cleanup plan estimated to cost the company $650 million.

But the PCBs — polychlorinated biphenyls — also would enter neighborhoods and schools through contaminated dirt that GE gave the abutting Allendale Elementary School during its construction in 1950, as well as to homeowners in the nearby Lakewood neighborhood.

Attorney Thomas Bosworth has, since mid-August, filed nine lawsuits in Berkshire Superior Court that center on the school area and two nearby landfills on the former GE plant site. Much of the Allendale school property was eventually remediated and capped.

Allendale school in Pittsfield has several air particulate monitoring devices that the EPA uses to test air samples twice a year to test for PCBs. The school's field and playground abut the former General Electric Co. plant from which PCB contaminated soil was used during construction of the school in 1950.

The Eagle reported on the first five.

Since Thursday, four more lawsuits have been filed — one by the widower of a longtime teacher at Allendale. Last Thursday, Steven McDermott filed the complaint on behalf of the estate of Nina McDermott, alleging her breast and kidney cancers were caused by her exposure to PCBs at and around the school.

Two more were filed on Monday by Paula and Nancy King, sisters who attended the school in the 1970s. One developed brain cancer; the other, breast cancer.

Also on Monday, Dylan Welch, 24, filed a complaint alleging his brain cancer is the direct result of his attendance at Allendale school.

Bosworth said the lawsuits represent a steady stream of legal action tying PCB pollution in the city over the years to various cancers and other illnesses.

The Pittsfield lawsuits all allege a link between PCBs and the cancers, including in two city children. Another former city resident links his Parkinson’s disease to the exposure. The defendants are the General Electric Co. and PCB manufacturer Monsanto as well as other related entities. Monsanto, so far, is denying it is liable. GE has declined comment due to the litigation.

The McDermott family from left, Nina, Abigail and Steven. Nina McDermott died of cancer last year. Steven McDermott filed a lawsuit Thursday alleging the Nina's cancers were caused by exposure to PCBs during her more than two decades teaching at Allendale Elementary School. The school itself, which sits next to the former GE plant and one of its PCB landfills, has been remediated and capped.

These personal injury cases are also known as torts, which are considered “civil wrongs” in that they stem from the intentional or negligent harm to a person or property.

Cases in which environmental pollution is involved are sometimes called “toxic torts.”

And such cases may never make it to trial. A judge could dismiss them early or a company accused of wrongdoing might decide to settle with the accuser for some amount of money rather than go through the expense and reputational damage of a trial.

Schlichtmann, who lives in Beverly, spoke to The Eagle about the Pittsfield lawsuits and the hurdles involved when trying to prove such cases.

Obstacles range from money to the amount of time that has passed between a plaintiff's exposure to PCBs and the time their complaints were filed. Legal challenges and motions also could kill or hobble the lawsuits, Schlichtmann said.

“One thing is certain, it will take a very, very long time,” he said.

Schlichtmann said he isn't suggesting that such lawsuits not be filed. The lawyers are “very courageous.”

“Hats off to those who take up that struggle,” he said, adding that the problem is also getting needed attention.

When asked about the expense and Schlichtmann’s experience, Thomas Bosworth, the lead attorney for the Pittsfield plaintiffs, said he’s got that covered.

“I have money,” he answered, without elaborating. “Period.”

Other attorneys also pointed to the time element — the statute of limitations — as a complicating factor.

Pittsfield attorney Jonathan Broverman said a factor in how the cases go forward will be knowledge of the PCB pollution, which has been in the news for years, and the timing of residents’ complaints.

“When should the plaintiffs have reasonably known that there was a potential cause of action?” Broverman said.

Thomas Campoli, who practices law in Pittsfield, pointed to that time and publicity problem as well. He said one of the reasons such cases are so expensive to take on is the cost of experts needed to link the exposure to those specific PCBs released by GE, given all the other exposures a person might have been subjected to, aside from other factors that might have caused illness.

“You need to have experts in particular discrete fields,” Campoli said.

Joseph Zlatnik, a Pittsfield lawyer, says that while the statute of limitations is not always a “complete shield” for companies in tort cases, the sheer expense of what becomes a scientific feud over whether the companies are to blame are the reason he shies away from such litigation.

“It turns into this battle of the experts,” Zlatnik said. “Causation can be a tough one when it comes to a disease that develops over time.”

Even a Washington state lawyer whose firm has successfully sued Monsanto over PCBs in a school spoke of the challenge of suing big companies with teams of lawyers and scientists on staff.

“The enormous resource disparity is a real problem,” Richard Friedman said. “Toxic tort cases are tough — it is a hard thing for a sole practitioner to try to do.”

All this is why Schlichtmann is more interested in talking about a new way forward with such battles. His preferred path would be one that doesn’t require so much money, time, conflict or the courts — a path that would prevent harm from industry before it happens.

“Unfortunately, the law is a very clumsy instrument for holding people accountable for environmental contamination.”

— Jan Schlichtmann, a lawyer who famously represented families sickened by polluted water in Woburn

“Unfortunately, the law is a very clumsy instrument for holding people accountable for environmental contamination,” he said.

He’s not sure how much progress has been made. He points to widespread PFAS — “forever chemical” — contamination that is now stirring new lawsuits despite everything that's been learned over the decades.

“We’re still fighting the toxic legacy of the 20th century while producing the toxic legacy of the 21st,” he said.

Schlichtmann says the system and its players keep on churning in a legal merry-go-round that doesn’t bring real resolution.

But the civil justice system is not set up to actually do that, according to Schlichtmann. It's geared to do the opposite — to prolong conflict, he added.

“Resolution actually means we’re enlightened by the process, not further gaslit by it,” he said.

Schlichtmann believes the civil justice system we have now is flawed down to the bone. It doesn’t often fix what is wrong, he said.

“It’s like relying on war to give us peace,” he said.

Heather Bellow can be reached at [email protected] or 413-329-6871.

Lee sued Bayer in March, alleging Monsanto knew PCBs were toxic but sold them anyway. The town's environmental attorney had to drop the suit in May, but he plans to refile it.

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