Water contamination suit settled

A legal showdown over allegations of Central and Leeward Oahu water supply poisoning has reached a settlement on one hand and a longer plaintiff roster on the other.

The Honolulu Board of Water Supply and seven business defendants -- petro-chemical companies and pineapple growers -- have settled a suit the city filed alleging the companies contaminated water supplies. The final settlement, not yet officially announced, could be as high as $150 million.

Additionally, a separate personal injury suit has added plaintiffs, bringing to 350 the number of Oahu residents seeking damages for illnesses -- including cancer and lupus --allegedly caused by the same water supplies, as well as the air and soil in the regions. Several individuals represented in the case have died, allegedly from contamination.

Legal sources familiar with the city case say the settlement will bolster the personal injury suit. Representing the plaintiffs in that suit are four law firms, including Honolulu-based Tam & Stanford and Los Angeles-based Masry & Vititoe -- the firm of "Erin Brockovich" movie fame.

The damages that could be awarded in the personal injury case could be very high. The contamination suit that was the subject of "Erin Brockovich" produced a $333 million award for 683 plaintiffs.

"To my knowledge, $333 million is the biggest toxic case ever," says Ed Masry, partner at Masry & Vititoe. However, "you can never compare one toxic case with another. There are different chemicals, different plaintiffs and different facts. To try to compare is irrelevant."

While the city's attorney Gerry Sekiya, partner at the firm Cronin Fried, Sekiya Kekina & Fairbanks, could only confirm that settlement talks took place on the city case, court documents reveal the city suit was settled during discussions last month, and a filing of dismissal has been set for Nov. 16. The filing did not disclose the sum of the settlement, nor would Sekiya, but in previous reports, BWS Manager Clifford Jamile said the city was asking for $150 million over 40 years.

Jamile deferred comment on the settlement to Sekiya. Local representatives of the defendants in the city case acknowledged talks had been taking place but declined to comment further.

"I think as a practical matter, the defense making a settlement would acknowledge the pesticide contamination took place, which, frankly, I don't think there should be too much doubt about," says Glenn Stanford, partner with Tam & Stanford, the lead firm in the personal injury case. "Obviously, the Board of Water Supply went to great effort to build these water filter systems to attempt to take out the contaminants. How effective that's been remains to be seen."

Despite the apparent bolstering of his clients' claims in the wake of the city settlement, Stanford says he's confident his case is solid regardless of the outcome of the city suit.

"We would have not been deterred in the least by the outcome of their case," he says. "We feel confident that liability will be found against the defendants that we named and they will be held responsible for damaging our 350 plaintiffs."

The city originally filed its complaint in October 1999. The city suit alleges three chemical compounds (DBCP, EDB, TCP) manufactured by four of the defendants (Shell Oil Co., The Dow Chemical Co., Occidental Petroleum Co. and AMVAC Chemical Co.) were used on pineapple crops by the remaining three defendants (Del Monte Foods, Dole Foods Corp. and Libby McNeil Libby

Inc.), and that those chemicals have since contaminated the soil and the water supply.

As the city is "responsible for the production and distribution of safe drinking water," the suit alleges, it "built and will continue to build facilities to remove the chemicals and pesticides that have migrated into ... groundwater sources ... ."

And because "the chemicals and pesticide products were defective in their design, formulation, manufacture and/or warning," the defendants ought to be responsible for the costs the city has and will incur to remove them from the water, the suit states.

While some of the defendants in the city case and the personal injury suit are different, the personal injury suit alleges the same chemical compounds were found in the air, soil and water, and were responsible for injuring or killing each of the 350 plaintiffs.

In February, the U.S. District Court will set a trial date, Stanford says. "This is not a class-action suit," says Tam & Stanford partner Glenn Stanford, "but a direct action brought by these people. There's a variety of personal injuries that we [claim have a] causal relationship to the pesticide contamination. We have injuries and we have death cases."

While much of the evidence will be offered for the whole group, each claim will be handled on a case-by-case basis, Stanford says.

Because of the sheer number of defendants, the court has arbitrarily chosen 30 of the 350 plaintiffs to be heard first.

"That's pretty typical of these kinds of cases," says Masry. "At the end of the 30, we can settle it or go on to the next 30."

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