by Dan Fagin
As they devised their opening proposal in the settlement negotiations, the lawyers for the families had to consider all of these subtleties. There was little to guide them; the Toms River case was unique because so many children with so many types of cancer were involved, and also because the state had already identified a cluster. Settlements in past lawsuits suggested that a nonfatal cancer in a young child might be worth about $1 million if there was strong evidence of causation. In Toms River, $1 million per child would mean almost $70 million—or maybe more, if siblings and parents got awards, too. But how strong was the evidence, really? Eric Green had heard all of it at the presentations and had given both sides his confidential assessment. Now that negotiations were starting, he was a very aggressive go-between. Under the terms of their mediation agreement, the two sides could negotiate only through Green, who made it clear that he would only pass along proposals he regarded as reasonable.
Green relayed the families’ first settlement proposal to the companies in February of 2001; a few weeks later, a counterproposal came back. “We were braced for something insulting, but it was much higher than I expected,” Cuker remembered. The companies were offering a little more than one-third of what the families’ lawyers had proposed. They were still tens of millions of dollars apart (the specific amounts have never been divulged), but they were closer than had ever seemed possible. Eric Green was one of the most esteemed mediators in America; he knew an opportunity when he saw one. He stepped up the pressure, wringing concessions from each side. But after a few more rounds, negotiations stalled. By then it was May, and the prospects for a deal were fading; the study results could be announced any time, and then all bets would be off. The lawyers returned to the work of building a court case, looking for evidence wherever they could. Cuker even asked Bruce Anderson to tear up some old, disconnected pipes in Anderson’s basement floor, hoping to find standing water from the 1980s that he could test for pollutants. Anderson, who loved handyman projects, plunged into this one with gusto but found that the pipes were dry. As he was relaying this disappointing news to Cuker, who was in a conference room in Newark, Eric Green walked into the room smiling. The companies had raised their offer significantly; the two sides were less than $1 million apart. A few weeks later, they had a deal. To the shock of almost everyone involved, Jan Schlichtmann’s idealistic dream of a resolution without a lawsuit was coming true.
The deal was still just a proposal, however. The companies were not going to pay unless all sixty-nine families renounced their right to sue, and it was not at all clear that every family would agree. While the overall settlement probably topped $35 million (the total has never been publicly disclosed), the proposed payments to individual families were fairly modest, considering what they had been through.6 The average, after deducting attorney fees, was probably about $300,000 per family. Even more problematically, the payouts ranged widely: more than $500,000 to some families, less than $100,000 to others.
For a decade, the families had stayed united because Linda Gillick made no distinctions among them: Any Toms River child with cancer was welcome. Theirs was an association of equals, with Gillick careful always to emphasize the primacy of the collective. Now that money was on the table, however, distinctions were inescapable. It was as if all sixty-nine families had crossed the ocean together in a lifeboat, only to find that they would not be rewarded equally for their ordeal when they finally reached land.
The lawyers called the May 31 meeting for five o’clock in the afternoon; they wanted to leave plenty of time for debate. By 4:55, nearly two hundred people were inside the hotel ballroom in Lakewood, just up Route 9 from Reich Farm and Ciba. Almost all sixty-nine families were represented. That had never happened before, but this was unlike any previous meeting. The parents and children in the room had been waiting for this for a very long time. At the front of the room stood Jan Schlichtmann, Mark Cuker, and Esther Berezofsky, along with their law partner Gerald Williams and Steven Fineman, a Lieff, Cabraser attorney who had worked on the case. This was their show, and they were nervous. Since the negotiations had started in January, they had had little contact with their clients. Now they were going to have to explain the proposed deal to families who knew almost nothing about it except that some of them would be getting a lot more money than others.
From the lawyers’ point of view, there was nothing radical about an allocation formula that treated each family differently. The Toms River case was about environmental causation, and the evidence of causation was stronger for some children than others. Therefore, the companies were not equally liable for the injuries to each child. Even before the negotiations started in January, Eric Green had insisted that Cuker, Berezofsky, and Schlichtmann devise a “matrix” that assigned proposed awards to each family based on many factors, including the type of cancer, length of exposure, and severity of injury. This matrix served as the basis for the subsequent rounds of proposals and counterproposals, with each back-and-forth whittling down the size of the overall total but preserving the disparities in allocations to individual families. After the deal was struck, the families’ lawyers were free to do any kind of reallocation they wanted, subject to the unanimous approval of their clients. The companies cared about the overall size of the pie; they did not care how the families divided it.7 So the three lawyers conferred and devised a plan that was similar to Green’s matrix but reduced the disparities between the families somewhat. Even after the adjustment, however, the highest compensated family would get nearly six times more money than the lowest. “The cancers were equally tragic, but we couldn’t ignore the fact that some cancers had much stronger legal cases than others,” Cuker would later explain. “That was a difficult thing to tell a client.”
It was, for about four hours, a very angry meeting. Almost no one criticized the overall size of the settlement or even complained about the lack of an explicit apology by the companies. The families understood that chemical manufacturers would never admit liability voluntarily. But almost everyone in the room was infuriated by the allocation formula their own lawyers had devised. Most thought that each family should get an equal share; a few thought the families of the fifteen dead children should get the biggest shares. No one spoke in favor of the lawyers’ formula, which took many factors into account but gave the greatest weight to the causal evidence for each child.
“A lot of people were resistant. We had always said that this was not about the money, but at that meeting, when it came down to it, it was about the money for some families,” remembered Kim Pascarella, whose infant daughter had died ten years earlier. Pascarella was sympathetic to what the lawyers were trying to do, especially since he was an attorney himself. On the other hand, Bruce Anderson, who had spent more time assisting the lawyers than anyone else, was strongly opposed. “At the meeting, I said no way,” he remembered. “I’m sure some people thought it was great. It’s all relative. I thought it was a joke. It didn’t come anywhere near compensating us for what we had been through.… Any amount of money wouldn’t suffice.”
Jan Schlichtmann listened to the recriminations with dismay. This was not the ending he had envisioned for his noble experiment in alternative dispute resolution. “That night was more painful and difficult than it had to be,” he remembered years later. Ever the dreamer, Schlichtmann had initially hoped to reserve a large share of the settlement to create a foundation, administered by the families, to support environmental education and advocacy in Toms River and elsewhere. “It would have been a chance to connect them to each other and to the future of the community, to say that we’ve learned from what happened in Toms River. But in the end, the money poisoned it, and we fell back on the traditional model,” he said. Ever skeptical of Schlichtmann’s offbeat ideas, Cuker and Berezofsky rejected his foundation idea as unserious and unfair to the families, who had been waiting a very long time to be compensated for their ordeal. It also would have reduced the payout to the lawyers, who had devoted more than three y
ears to the case. Instead, the lawyers had agreed on a settlement proposal that would pass through almost all of the money to the families, minus their fees and some costs. It did include one innovative element: a “cancer recurrence trust fund” of almost $4 million (after fees) that would be tapped to compensate any of the surviving children who relapsed. After fifteen years, whatever was left in the fund would be distributed to the survivors.
The deal was carefully balanced, and now it was coming undone—at least, the lawyers feared that it was. “People were yelling at each other, fighting. It was an unbelievably tense situation,” recalled Esther Berezofsky. “I’d say we were seconds away from dispersing.” Not everyone was quite so worried. Kim Pascarella believed that the dissenters would come around, after they realized that there were only two other choices: wait another five years or longer to take a chance on a jury trial, or give up and get nothing. He was right. As the evening wore on, the mood shifted from bitter denunciation to grudging acceptance, spurred by the speech of a young cancer survivor who urged the group to rise above self-interested bickering and stay united. The room fell silent as she sat down, and after a few more minutes the lawyers asked for a show of hands. Not everyone voted for the deal, but no one raised a hand to vote against it—not even Bruce Anderson, who was still seething but did not want to be the one to sink the agreement.
Many of the parents were crying as they filed out of the hotel and into their cars to go home. What they were feeling was something far short of elation, something much less satisfying than the sweet revenge Michael Gillick had craved since he was a boy. At last, the families had gotten an indirect acknowledgment from Ciba, Dow, and United Water that their children had been harmed, but it did not come with an admission, an apology, or even an explanation—just a dollar sign, and an unequal one at that.
The next six months were a strange and secret time. Jerry Fagliano and the rest of the cluster investigators had found something important in Toms River but could not divulge the results yet to anyone, including the families. Linda Gillick and the families had reached a large legal settlement but could not tell anyone about it, including the investigators. Each group had no choice but to keep its secrets. Before they could announce the results of their case-control studies, Fagliano and his team needed to recheck all of their calculations, write up a final report, and present it for review by a panel of outside experts, all of whom were sworn to secrecy. The families and their lawyers, meanwhile, could not divulge the existence of the out-of-court settlement until a judge approved all of the payment arrangements that included children under age eighteen.
The mind-numbing process that preceded those judicial hearings was, for the families, a bleak reminder of how their private anguish had become a business transaction in which they were mostly passive observers. The attorneys told them how much money they would be getting, and a financial adviser (secured by the lawyers) told them how they should manage it. The cancer survivors and their siblings (the latter were modestly compensated for emotional distress) would start receiving payments when they turned eighteen. Their parents, who received less, were told to calculate their expenses in the form of missed workdays, uninsured medical bills, and even mileage and tolls for long-ago trips to out-of-town hospitals. The lawyers also made sure that the families signed the liability release, which was phrased in the form of a letter to Ciba, Dow, and United Water in which the signers agreed to “give up any and all claims and rights” and to keep the terms of the settlement secret. There was no reciprocal letter from the companies expressing regret about what had happened in Toms River over the previous fifty years.
Money was the way corporations apologized—at least, that is what the families had been told by their lawyers. But the nondisclosure agreements the families were required to sign blunted at least some of the satisfaction. Still, $35 million was enough to make the Toms River settlement one of the largest payouts ever in a toxic exposure case. It is unquestionably the largest in a residential cancer cluster case, dwarfing the $8 million Woburn settlement of 1986.8 The Toms River families had made history, even if they were too wrung out to savor their accomplishment.
The looming court hearings offered the potential for at least a partial catharsis for some of the families, the ones with underage children at home, because they would get their long-sought day in court. But those hearings kept being delayed—first by the need to prepare so much paperwork and then by a shocking intrusion from the outside world: The hijacked American Airlines jet that plowed into the North Tower of the World Trade Center on September 11, 2001, struck just four floors above the New York offices of William Warren’s law firm, which had represented Union Carbide. No one from the firm was killed, but the disruption necessitated more delays. The postponements could not continue indefinitely, however, because in October, Jerry Fagliano told Linda Gillick’s committee that the state had finally set a date to announce the results of the case-control studies: December 18. If the settlement was not final by then, it might never be. And if there were any last-minute hitches, super-mediator Eric Green would not be available to resolve them. Green was tied up in Washington, D.C., where he was hammering out one of the most famous mediated settlements in United States history, in the federal government’s antitrust case against Microsoft.
A week after Thanksgiving, the hearings finally began in Superior Court Judge Marina Corodemus’s courtroom in New Brunswick, an hour north of Toms River. Linda Gillick did not speak. She had always said that she wanted a chance to confront Union Carbide, Ciba, and United Water in a courtroom, but Michael Gillick was now twenty-two and too old to be summoned for the “friendly hearing,” as the proceeding was called in New Jersey. The judge’s only job was to make sure the settlement was in the best interests of each child; the adults were on their own. Some parents and kids made short speeches to Judge Corodemus, telling wrenching stories about the anguish of chemotherapy and the terror of late-night visits to emergency rooms. After a few minutes, each family’s day in court was over, and the next set of parents and children entered to tell their story.
The judge approved the settlement after the last hearing, on November 30. That left just one more issue for the lawyers to negotiate: the wording of a joint statement that would announce the agreement without disclosing its financial terms. Released December 13, the statement was a marvel of lawyerly art: Its seven paragraphs managed to communicate almost nothing of substance. The last four sentences read: “With the assistance of numerous technical, scientific, and medical experts, the parties exchanged detailed factual, scientific, and technical information and studied the scientific basis for the childhood health concerns. Ultimately, the detailed scientific inquiry failed to result in any agreement that any of the companies were responsible for the conditions that gave rise to the families’ claims. All involved agreed that a settlement would best advance the community’s interest and involvement in the public health issues being studied, and would foster the productive and cooperative approach the families and companies have experienced through their dialogue since 1998. Based primarily on these factors, the families and companies reached a settlement to bring closure to the families’ claims.”
The final sentence was not quite accurate: The Toms River case was over, but it was not closed.
The disclosure of the settlement came as a huge relief to Jerry Fagliano and his colleagues at the state health department, who were about to make their own blockbuster announcement and had worried about how it might affect each family’s legal claim. “The announcement of the settlement seemed to take considerable tension off the table,” remembered James Blumenstock, then the deputy state health commissioner. “We felt a little less pressure, but it was still there. We still had to do a gut check on how confident we were, from a scientific point of view, that our findings were correct.”
The message the state health officials were about to deliver was nuanced; it would please some families but frustrate others. Fagliano had finished writi
ng a first draft of his conclusions in August and had stuck pretty closely to what he had concluded six months earlier, when he first analyzed the data. The two key findings applied to girls with leukemia. For all girls exposed prenatally to Parkway water, there was a “statistically significant association and consistency in multiple measures of association,” Fagliano wrote. There was also a “consistent elevation in the odds ratios and an apparent dose response effect” for girls under age five exposed to Ciba air emissions.9
In September, when he presented his draft report to a panel of outside experts for a confidential review, its members asked the obvious question: Why only girls? There was no good answer; not even a good guess. Several epidemiologists on the review panel had been deeply involved in the investigation at Woburn, which had also found an association between childhood leukemia and prenatal exposure to contaminated water. But in Woburn, the association was stronger with boys. The most likely explanation was that gender was irrelevant, and that the preponderance of male victims in Woburn and females in Toms River was coincidental. For that reason, some of the reviewers urged Fagliano to lump boys and girls together when he presented his data. But he resisted; if the sexes were combined, the picture would get more confusing. For both sexes together, the odds ratio for children who were highly exposed prenatally to Parkway water after 1981 was 2.57 but the result was very uncertain, with a confidence interval ranging from 0.72 to 9.10. For children under age five, the odds ratio was 1.80 and the confidence interval was 0.39 to 8.37. In both instances, the odds ratio suggested that the association was not due to chance, but since the lower bounds of both confidence intervals dipped below 1.00, neither met the generally accepted definition of statistical significance.
Statistical problems had already doomed Fagliano’s efforts to try to find out whether drinking water from the riverside Holly Street wells in the 1960s raised cancer risk. Now Fagliano could make the Parkway data go away, too, if he took the panel’s advice and lumped the sexes together. If he did, the State of New Jersey and the Agency for Toxic Substances and Disease Registry could close out their joint investigation by declaring they had found nothing significant; after almost six years and well over $10 million—nothing. Yet there was a pattern of elevated odds ratios in Parkway data, even if most of the confidence intervals dipped below 1.00. Back in 1995, when they saw a similar pattern in Michael Berry’s incidence study, Fagliano and Berry had concluded that the results were too uncertain to warrant a follow-up investigation. Now, six tumultuous years later, Fagliano did not want to make the same mistake—especially because he had now identified a similar pattern in two environmental exposures: Ciba air emissions and Parkway water. He had found a series of associations between pollution and leukemia, and he was going to report them even if he could not explain why they were so much stronger in girls than boys.
