Toms River Recorder News Tank



Settlement in Dover case, Asbury Park Press 12/13/01

3 companies, families end dispute over cases of childhood cancer



TOMS RIVER -- Lawyers representing 69 families of children stricken with cancer yesterday announced that a settlement they've reached with two chemical companies and Dover Township's public water provider will give families an undisclosed amount of money. The agreement also will end four years of mediation among the parties about possible links between environmental contamination and childhood cancer here.

"The families of Toms River have something to share with the rest of the world," said Massachusetts lawyer Jan Schlictmann, who represented the families, along with Cherry Hill lawyers Mark R. Cuker and Esther E. Berezofsky. Ciba Specialty Chemicals Corp., Union Carbide Corp. and United Water Toms River agreed to the settlement, which was announced yesterday.

The terms and conditions of the settlement are confidential, Cuker said yesterday, although the families will receive an undisclosed amount of money. Under the agreement, none of the companies admitted responsibility or any liability for childhood cancer cases here. The final settlement will require court approval for family members who are still minors, the lawyers said.

Cuker could not say whether the settlement includes payment for future medical monitoring of the families, a goal some family members had said they would pursue during negotiations.

Dover Township resident Joseph Kotran, whose 5-year-old daughter, Lauren, is in remission after battling neuroblastoma, a cancer of the nervous system, said the settlement helped avoid a protracted legal battle that could have dragged on for many years. "It's for the children," he said. "Some of them, they're not going to be around in 10 years. It means we can put that whole episode behind us," said Kotran, who belongs to the group Toxic Environment Affects Children's Health or TEACH, whose members hired Schlictmann, Berezofsky and Cuker to represent them in late 1997. "You're never going to be completely satisfied, if you have a daughter or son with cancer. We are going to be concerned about her health for the rest of her life."

Kotran said he supported the lawyers' decision not to file a lawsuit against the companies and instead try to share information and negotiate a settlement.

"Obviously there must have been something there, as they went around and exchanged information, to lead (the companies) to believe there should be a settlement," Kotran said. TEACH was formed in late 1997 by about 40 families of children with cancer, many of whom believed there was a link between environmental contamination in Dover and their children's illnesses.

From the start, Schlictmann, Berezofsky and Cuker urged the families to enter discussions with Ciba, Carbide and United Water Toms River. Starting early in 1998, TEACH entered into a series of 18-month "tolling/standstill agreements" with the three companies, which established a period of time in which the families agreed not to sue so that information could be exchanged.

Ciba and Carbide have assumed responsibility for contamination at Dover's two Superfund sites. United Water bought the public water system serving most of the township from the Toms River Water Co. in 1994.

TEACH member Linda L. Gillick, whose 22-year-old son, Michael, has battled neuroblastoma since infancy, said the agreement can not provide closure for families still struggling with the effects of childhood cancer. "It's not closure. It's everyone working together from all sides to come to an agreement that was basically satisfactory. And it's a lot better than going into the courtroom," said Gillick, who is executive director of Ocean of Love, a support group for families of children with cancer. "For the families, reliving what their children went through and are going through, and for those who have lost their children, it's very, very painful. By not having to go into a courtroom, this puts it behind us."

Schlictmann said he believes the families' decision to share information with the companies and reach a settlement without filing a lawsuit resulted in an agreement that benefited all the parties involved. He said he believes the Toms River case will become a model copied by other lawyers and families pursuing environmental contamination cases.

"To the families' credit, they decided that they would have the courage to try another way of doing things, (a way) that honored their tragedy and was able to encourage respect for themselves and the companies," Schlictmann said.

Representatives of Ciba, Union Carbide and United Water Toms River also praised the settlement, saying the mediation process was effective and fair.

"I think that the process involved wound up being a very effective process because it enabled all the stakeholders to discuss this issue without the fear of litigation hanging over our heads," said Carbide spokesman Tomm Sprick. "We have seen historically that once a case is filed in court, irregardless of the subject matter, the parties will pull back and start posturing. This enabled the free and open exchange between the groups."

United Water spokesman Richard Henning said he believes that reaching a settlement was in the community's best interest. "I think what the settlement does is, certainly, to enable the community and the companies, including United Water Toms River, to move on," Henning said.

"I think that's ultimately best for the community. Nobody has all the answers here."

Donna Jakubowski, a spokeswoman for Ciba Specialty Chemicals Corp., the successor to the Ciba-Geigy Corp., said the agreement brings some closure to Ciba as well as the families.

"We participated in good faith in the negotiations," Jakubowski said. "For us, it means that now that we've brought closure to this, we can move forward to concentrate on the remediation of the (Ciba) site, which has always been our ultimate goal."

Schlictmann gained fame fighting an eight-year court battle on behalf of several Woburn, Mass., families who believed contaminated drinking water had caused their children's leukemia. The legal battle was documented in the best-selling book, "A Civil Action," which was made into a movie starring John Travolta as Schlictmann.

Schlictmann now counsels families against "going to war" in environmental contamination cases, believing instead that both families and industry may be better served if all parties agree to share information and attempt to reach a settlement without lengthy litigation.

He said the Toms River families were able to achieve an agreement in less than four years, compared to the more than eight years of litigation in Woburn. "Now they have something to say to other communities," he said. "Try this kind of approach to see if that might not work to resolve this problem. . . . This process offers the opportunity to do this sooner rather than later."

Not all lawyers involved in environmental litigation share Schlictmann's views. Last year, Toms River lawyer Norman Hobbie and lawyers Christopher Placitella, Michael Gordon and Angelo Cifaldi filed a series of lawsuits against Ciba Specialty Chemicals Corp. and United Water on behalf of hundreds of people they say were harmed by exposure to contaminated drinking water and polluted air emanating from the chemical plant.

Hobbie, Placitella, Gordon and Cifaldi have argued that companies are not likely to disclose all available information unless they are forced to do so. But Cuker said the complicated facts of the TEACH families' case, coupled with the ongoing state and federal investigation into elevated levels of some childhood cancers in Dover, led the lawyers to seek another method of settling the families' claims.

"We know the pros and cons of litigation," Cuker said. "We decided in this case, which involved many, many children with cancer, and a state and federal investigation pending, that we would use an unusual process. We engaged in this process and wound up exchanging as much if not more information than we would have had we decided to litigate."

TEACH and the companies had their own scientific consultants and medical experts, Cuker said. In the end, the lengthy scientific inquiry by all the experts did not result in any agreement that the companies were responsible for the childhood cancer cases here.

Eric Green, a mediator with Boston-based Resolutions Inc., participated in the mediation process during the last eight months and helped the parties reach a settlement, Cuker said.

Cuker said yesterday's settlement announcement is not connected in any way to Tuesday's release of an epidemiological study that is the centerpiece of the 5 1/2-year-long state and federal investigation into childhood cancer levels here.

The release of the epidemiological study will conclude the childhood cancer investigation.

Readers interested in details of the historical reconstruction methodology, simulation approaches, or results for specific years and locations for the Dover Township area should refer to the full report that is available over the Internet at the ATSDR Web site at URL:

The summary report is available to view in "pdf" format in this site: Summary report.