LANCASTER – Though some Lancaster chemical exposure lawsuits against Armstrong World Industries are nearly a decade old, they are in jeopardy of being dismissed as early as today for failure to prosecute.
A hearing is scheduled today in Lancaster court to determine whether cases for more than two dozen plaintiffs suing Armstrong World Industries for alleged harmful and in some cases, fatal, chemical exposure will be dismissed for failure to prosecute.
In recent months, the litigation has turned into a legal debacle that saw the presiding judge throw the plaintiffs' attorney off the cases - against some of his clients' wishes.
More than 30 lawsuits blame Armstrong World Industries, formerly Lancaster’s largest employer, for exposing workers to chemicals that led to illness and death. However, a judge felt their representation left something to be desired, saying their attorney George Chada “made a mockery of the law” and subsequently sanctioned him for more than $126,000 in August.
The first lawsuit in the series was brought by plaintiff Sandra Cooper in 2009. Sandra alleges her late husband Gene died at the age of 58, because the company exposed him and other AWI facility workers to dangerous substances trichloroethylene (TCE) and “Safety Solvent," whose fume inhalation would later allegedly cause him to suffer toxic encephalopathy with Parkinson’s disease-related symptoms.
Other plaintiffs alleged the exposure caused cancer and different forms of fatal disease.
Pittsburgh-area lawyer George Chada took on the task of representing Cooper and other plaintiffs who filed suit against AWI and co-defendants Brenntag Northeast, Inc., Dow Chemical Co. and Mallincrodt Baker, Inc. – but nearly a decade later, the litigation appears to be proceeding at a glacial pace with no trial date in sight.
Chada's lawsuits allege a mixture known as “Safety Solvent” was used at the Lancaster facility despite its harmful effects on those who breathed its fumes.
(AWI is based in Lancaster, makes floors and ceilings and is one of several dozen companies forced into the bankruptcy system by asbestos lawsuits.)
In Chada’s complaints, he says Safety Solvent was a blend of three organic solvents developed by AWI, but at the same time alleges Brenntag made it. The company eventually asked the court to sanction Chada for suing it when he had no reason to think Brenntag made or sold Safety Solvent.
Lancaster County Court of Common Pleas Judge Leonard G. Brown III issued a 35-page document listing an extensive critique of Chada’s perceived mistakes, ranging from not filing necessary paperwork, to submitting untimely briefs and incorrectly citing precedent, in addition to the following;
-Filing a motion to find a defendant in contempt of a stay, even though no stay had been entered;
-Adding additional defendants without getting permission;
-Continuing to file claims for secondary exposure, fraudulent misrepresentation and intentional spoliation, even though those claims had been struck from four model cases in September; and
-Serially filing amended complaints without permission from the court while ignoring court directions to remove certain claims, denying AWI and Brenntag the chance to have their defenses ruled on.
It all led up to Chada’s six-figure sanctions in August, totaling $126,434.23, and him being thrown off the case. However, Cooper paid an appeal bond on Chada’s behalf in the amount of $151,721.08, plus an additional $8,000 as a result of an alleged miscalculation.
Cooper previously told the Pennsylvania Record that she decided to post the bond for Chada of her own volition, and was not persuaded into doing so.
“He has been my attorney for 13 years. I have invested untold time and financial resources to preserve my cases, and to fight for some measure of justice for my family and the other workers. The only way to preserve my legal representation was to post an appeal bond, which I did. I was not coerced or asked to do this,” Cooper said.
Commonwealth Court Weighs In, Communication With Presiding Judge
Cooper has also corresponded with Judge Brown via letter on more than one occasion in the past month. In a Dec. 10 message, Cooper attached a Nov. 16 decision from the Commonwealth Court of Pennsylvania.
The decision upheld a Workers' Compensation Appeals Board ruling, which affirmed a decision that Gene Cooper was exposed to chemicals during his employment at AWI.
"Viewing this credited evidence... in the light most favorable to Claimant, a reasonable mind might accept it as evidence that Claimant was exposed to TCE, along with other halogenated hydrocarbons and hydrocarbon distillates, during his 30 years working for Employer," the decision says.
"Accordingly, the WCJ's findings in this regard are supported by the record."
In Cooper’s most recent letter dated Dec. 26, she referred to the Commonwealth Court’s decision and challenged Brown’s communication with defense counselor Ronald E. Hurst of Montgomery McCracken Walker & Rhoads in Philadelphia on the subject of releasing her appeal bond payment back to her.
“Not withstanding attorney Hurst’s motion to direct the prothonotary to release funds, this issue is not subject to approval from Brenntag for a rule on sanctions that you yourself issued,” Cooper stated.
“The discussion between yourself and attorney Hurst concerning disciplinary counsel seemed also to blur the distinction between the rule on sanctions and the rule on disqualification, and involvement of disciplinary counsel. I am extremely concerned that the failure to release these funds gives the appearance that the fraud extends to the court, whether or not that is correct.”
Cooper sought the return of her appeal bond funds by Dec. 31.
“I will prepare all relevant documents related to this issue, in case you do not see fit to comply with my request. Because this may be construed as fraud and theft, I would be compelled to seek guidance from the Office of the Lancaster County District Attorney related to this matter and file a complaint with the Supreme Court Judicial Review Board,” Cooper said.
Lancaster County Court of Common Pleas case CI-15-08200
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at email@example.com