Lawyers Prepare Birth Defects Suits

By Emily Green Daily Journal Monday, February 7, 2011

KETTLEMAN CITY - In recent months, high-powered trial lawyers have arrived in this Central Valley town, population 1,500, prompted by the unusually high number of birth defect cases here.

They have held town hall meetings, sought clients and are preparing to file lawsuits on behalf of the parents of 11 children born with birth defects over a two-and-a-half-year period.

And they are undeterred by a yearlong investigation by state regulators clearing environmental factors in the birth defects, including a hazardous waste landfill and a water supply contaminated with benzene.

At the center of the coming lawsuits are multinational corporations Waste Management Inc. and Royal Dutch Shell.

"Believe me, these cases cost a fortune. And a good law firm never enters into this type of litigation unless there is a massive probability of success," said Thomas V. Girardi of Girardi Keese in Los Angeles, which is representing six mothers who had children with birth defects and two adults diagnosed with leukemia, all between 2007 and 2010.

Girardi Keese, which has a special unit devoted to toxic-tort litigation, worked with Masry & Vititoe's Erin Brockovich - who now consults for Girardi Keese - in the 1990s to sue Pacific Gas & Electric. A second Los Angeles law firm, Lee & Fields APC, is representing five mothers in Kettleman City who had children with birth defects.

The firms are not working together, yet lawyers for both say toxins in the air and water likely caused the high rate of birth defects. Halfway between Los Angeles and San Francisco off Interstate 5, Kettleman City was founded in the late 1920s as a housing base for nearby oil fields. Today, it's predominantly Latino, and most of the men work on the massive agricultural farms - from pecan to cattle - in the Central Valley. The median family income is $21,300, according to U.S. Census figures.

Normally, a town this size could expect up to three babies born with birth defects each year, according to the California Department of Public Health. Yet, between 2007 and 2010, it saw 11 babies born with defects so severe that three died just months later. In the 15 years before 2007, only one Kettleman City baby was born with birth defects, according to the health department.

Unusual birth defect cluster

It is the only birth defect cluster identified by the state Department of Public Health in recent years. In January 2010, Gov. Arnold Schwarzenegger ordered state public health and environmental officials to start investigating.

The California Environmental Protection Agency analyzed the level of toxic chemicals emanating from a hazardous waste landfill 3 1/2 miles outside of Kettleman City. It conducted tests on the town's water supply and checked the soil for the presence of dangerous pesticides, as well as examining the mothers' medical histories and both parents' work experiences. Ultimately, the agency found no cause for the birth defects.

"Suffice it to say that we think the testing that was conducted by the [California] EPA was skewed," said Edward Lee of Lee & Fields, a small firm that became interested in Kettleman City after reading news reports about the birth defects cluster. Last summer, firm lawyers held town hall meetings here looking for clients and are now representing five of the mothers who had children with birth defects.

Lee's partner, Christopher Fields, said lawyers at the firm are focusing on the validity of the state testing, especially of the Kettleman Hills Hazardous Waste Facility, which is owned by Houston-based Waste Management.

Opened in 1979, the 1,600-acre dump is the only landfill in California and one of the few in the Western United States licensed to accept PCBs, carcinogenic polychlorinated biphenyls - a highly toxic form of synthetic oil found mostly in recycled electric transformers that Congress banned the year the Kettleman Hills dump opened.

High Toxic Waste Volume

In 2006, one year before the birth defect cluster started, the landfill processed some 83,000 tons of PCBs, according to Waste Management. That was nearly four times as many PCBs as the facility processed in any of the previous six years. The surge resulted from the cleanup of hazardous waste at Hunter's Point Naval Shipyard in San Francisco. During state regulators' investigation in 2010, they tested the air for PCBs, which can be carried in airborne dust particles and dirt. They found that the PCB level in the air matched that in other areas in the Central Valley, and therefore concluded that PCBs didn't cause the Kettleman City birth defects.

"We'd like to know the specifics and if there was any problem with independent testing," Fields said.

For example, "Was Waste Management warned prior to the testing?"

Girardi Keese is focusing its investigation on the high levels of benzene - a cancer causing compound found in crude oil - in the town's water supply.

In its tests, the California EPA found that the town's two municipal wells contained benzene "at levels potentially harmful to human health." Yet the Kettleman City Community Services District treats the water for benzene, and regulators didn't find the compound in samples from local kitchen faucets, leading them to conclude the water is safe. The Central Valley Regional Water Quality Control Board investigated the source of the benzene and concluded it's naturally occurring.

Girardi disputes the state's findings. He contends that benzene in the water, in conjunction with toxins from the Kettleman Hills landfill, led to the birth defects.

Feds Stand By Their Tests

EPA officials stand by their conclusions. "The study of environmental and health conditions in Kettleman City by Cal/EPA and the California Department of Public Health was one of the most thorough environmental health investigations ever conducted in California," said Sam Delson, a spokesman for the California EPA's Office of Environmental Health Hazard Assessment.

Girardi said the source of benzene is a leaky Shell pipeline running from Martinez to Bakersfield and passing through Kettleman City.

"Corporate America is pretty loose when it comes to cleaning up their messes, and we think Kettleman City is probably one of them," Girardi said. "If we proved that these people have been harmed due to environmental factors, we want somebody to pay for it."

Girardi Keese is in litigation with Shell over the alleged pipeline leak. A lawsuit filed on behalf of some 1,500 plaintiffs claims Shell's negligence led to dangerous levels of methane gas and benzene in the water, soil and air in the city of Carson in Los Angeles County. AKT Investments v. Shell Oil Co., CV000807.

Girardi expects his firm to file lawsuits by March against Shell and Waste Management in connection with the Kettleman Hills birth defect cluster.

A spokesman for Shell said the company does not discuss pending or future lawsuits.

Landfill Operator: Not Our Fault

Waste Management maintains that the Kettleman Hills facility didn't contribute to the birth defect cluster.

"All I can say about that is we are doing everything we can to continue to demonstrate to all of our constituents, and that includes the people of Kettleman City, that our site is safe and it's not causing any health impacts on the surrounding community," said Jennifer Andrews, a Waste Management spokeswoman.

Addressing the possibility of a lawsuit, Andrews said, "We are preparing for everything."

Waste Management has much to lose. It is running out of space to process PCBs at the landfill and has applied to local, state and federal regulators for a permit to expand a portion of the landfill that processes PCBs.

State and federal regulators have yet to approve the expansion request. Lawsuits could delay approval.

Any litigation in Kettleman City is likely to come down to science.

Toxic-tort lawsuits often involve "a battle of experts on the witness stand," said Steven T. Miano, a shareholder with Hangley Aronchick Segal & Pudlin in Philadelphia and an environmental lawyer familiar with toxic-tort cases.

"Just because the U.S. EPA or California EPA says it's so doesn't make it so," he said. "The experts on the other side will look at these studies, pick them apart, and try to find problems with them."

Meanwhile in Kettleman City, residents are divided over the trial lawyers' presence. Some worry the lawyers are representing the "mothers" because of the possibility of a big payout and that they're unconcerned about the larger environmental issues there, such as getting the community clean water.

"They're ambulance chasers. They smell blood in Kettleman City and here they come," said Maricela Mares-Alatorre, a Kettleman City resident and a spokeswoman for the Kettleman City environmental group, "People for Clean Air and Water," which was formed in 1988 in response to Waste Management's unsuccessful application to build and operate a hazardous waste incinerator at the landfill.

But Maura Alatorre, who hired Lee & Fields on a contingency basis, said she hopes the lawyers will have more success than state regulators in pinpointing a source of the birth defects. Alatorre's son, Emmanuel, was born with cleft lip and with part of his brain missing.

"I thought it was my fault," she said, "but I didn't do anything to make him this way."

Magdalena Romero, who hired Lee & Fields, echoed that sentiment. Romero's daughter, America, was born in September 2007 with respiratory distress, skin lesions, cleft palate and a heart murmur. She died five months after being born.

"We are fighting against a giant, and maybe [the lawyers] can help," Romero said. "My daughter is not for sale."

Class Action Certified January 22, 2010 Lymburner v. U.S. Financial Funding, Inc. C-08-00325 EDL.

Lee and Fields, APC is proud to announce the certification of their 1st national class action. Edward Lee and Christopher Fields, along with co-counsel Jeffrey Berns and David Arbogast of Arbogast & Berns and Bryan Kabatek and Richard Kellner of Kabatek Brown & Kellner, were appointed as class counsel in Northern District of California Case No. C-08-00325 EDL. In her complaint, Plaintiff Lymburner alleges violations of the Truth in Lending Act, Fraudulent Omission, and Unfair Competition. The class is defined as:

All individuals in the United States of America who, between January 17, 2004 and the date that notice is mailed to the Class, obtained an Option ARM Loan originated by U.S. Financial Funding, Inc., with the following characteristics:

(i)The numerical interest rate listed on page one of the Promissory Note is 3.0% or less;

(ii)In the same paragraph referenced in (i), the Promissory Not uses the term “may” instead of “will” or “shall” change, when describing an increase in that listed numerical rate, e.g., the interest rate I will pay may change;

(iii)The margin amount added to the index for the loan is equal to or greater than 1.75%;

(iv)The promissory note does not contain any statement that paying the amount listed as the “initial monthly payment” “will” as opposed to “may” result in negative amortization after the first interest rate change date.

Excluded from the Class are Defendant’s employees, officers, directors, agents, representatives, and their family members, as well as the Court and its officers, employees, and relatives.

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Jury Verdict Obtained For Motorcyclist.

Sometimes it’s the smaller cases that are the most gratifying.  Such is the case with our client Marco Antonio Aguilar.  On February 12, 2007 Mr. Aguilar was riding his motorcycle eastbound on Wilshire Boulevard when traffic in his direction backed up in the two lanes to the left of him.  As Mr. Aguilar was proceeding through the intersection of Wilshire Boulevard and Cloverdale Avenue in Los Angeles, another vehicle made a left-hand turn in front of him on a green light.  Consequently, Mr. Aguilar ran into the side of the other vehicle luckily only sustaining soft-tissue injuries. 

From the outset, the other party’s insurance company denied the claim arguing that Mr. Aguilar was the party-at-fault due to his alleged lane splitting.  After becoming discontent with his previous representation, Mr. Aguilar came to Lee & Fields to substitute in on his case.  Despite the fact that Mr. Aguilar incurred medical bills and property damage amounting to almost $29,000.00, relying on their “lane splitting” argument, the other party’s insurance company only offered $2,500.00 for full compensation. 

After a three-day trial, the jury awarded Mr. Aguilar the sum of $58,565.92 finding him only 20% at fault for his alleged lane splitting, an end result of more than 18 times what was originally offered.  Suffice it to say, Mr. Aguilar was extremely pleased.  Whether the case involves minor injuries, catastrophic injuries, or wrongful death, the law offices of Lee & Fields takes pride in diligently representing each client with the necessary compentency and care.  If you or someone you know are involved in an accident resulting in injuries or death, call Lee & Fields for a free consultation.  Like Mr. Aguilar, you’ll be glad you did.


DA Agrees To A Dismissal.

Edward Y. LeeWith the permission of our client, Javier Rodriguez, we are pleased to announce that the District Attorney for the City of Malibu has agreed to dismiss his case.  Mr. Rodriguez is employed as a security guard with ambitions of becoming a police officer.  After work on March 12, 2008, he was picked up by a friend who was alleged to have made an illegal U-turn.  Unfortunately for Javier, he forgot to take off his gun holster.  Although the gun was properly registered and Javier was permitted to carry an exposed firearm, he was arrested and charged with carrying a concealed weapon within a vehicle in violation of California Penal Code Section 12025(a)(1). 

The public defender who initially represented him advised Javier to plead guilty to a misdemeanor charge, pay a hefty fine, and be placed on probation for three years.  Knowing that a misdemeanor conviction on his record would jeopardize his prospects of becoming a police officer, Mr. Rodriguez came to Lee & Fields for help.  After four months into the case and after a hearing on a Motion to Suppress Evidence for lack of probable cause, the handling district attorney has agreed to dismiss the charges against Mr. Rodriguez.  Mr. Rodriguez will now be free to pursue his dream of becoming a police officer.