Judge Ryskamp Dismisses With Prejudice Groundwater Contamination Case!

It turns out that a few years ago a bunch of poor minority residents living in the Acreage area of western Palm Beach County learned that they had unusually high rates of cancer -- a "cancer cluster" -- not exactly great for property values (let alone health).

These residents then sued aeronautics giant Pratt & Whitney for contaminating their groundwater, claiming that the contamination emanated from a plant located several miles away.

On a second amended complaint, Judge Ryskamp dismissed the action with prejudice, relying on Iqbal and a lack of specificity in the allegations.

Here's an example:

The closest Plaintiffs come to making a specific allegation that something traveled from Pratt & Whitney to the Acreage is in Paragraphs 236 and 238, but those fall short of the mark. Plaintiffs allege that Pratt & Whitney and The Acreage “are underlain by” the same aquifer, and that “groundwater is drawn” from the Corbett Wildlife Management Area and Pratt & Whitney to the Acreage. Complaint, ¶236. Plaintiffs then allege that their experts:

confirm that the types of CCOCs . . . known to have been spilled . . . at the P&W site and by Pratt & Whitney in the Corbett National Wildlife Refuge [sic] have traveled to and physically invaded The Acreage, and are present in the groundwater of The Acreage Neighborhood and have contaminated the groundwater that the Plaintiffs’ and class members’ properties share with [THMs].

Sec. Am. Compl., ¶238. This allegation superficially appears specific, but is yet another generalized allegation that the “types of CCOCs” found at Pratt & Whitney traveled to somewhere under “The Acreage”—as opposed to under each Plaintiff’s property—and that these types of CCOCs “are present” in “the groundwater of The Acreage Neighborhood.” The mere allegation that chemicals at Pratt & Whitney “are present” in the groundwater of “the Acreage” does not mean that the chemical traveled from Pratt & Whitney to the Acreage, as any chemical in the Acreage could have come from a different source than Pratt & Whitney.

YUM -- time to bottle and sell that delicious vaguely contaminated Acreage water!

(Maybe they can sell some to that nearby Pratt & Whitney plant?)

BTW, plaintiffs' lawyer Craig Zobel said he had plenty of evidence:

“We respectfully disagree,” he said. Contrary to Ryskamp’s ruling, Zobel said, he submitted thousands of pages of records linking Pratt & Whitney to the cancer cluster. He hired an appraiser, who reviewed all 17,000 pieces of land and methodically showed how property values plunged. He hired hydrologists to track how toxins moved through underground water supplies. He hired urologists and toxicologists who linked Magaly Pinares’ kidney cancer to the toxins found in her well.

“We had a wealth of data,” he said.

But how much of it was in the second amended complaint?

Settlements: Sometimes A Good Thing.

The always intrepid Julie Kay gets to the bottom of the $4.9 million malpractice verdict against Becker & Poliakoff.

Apparently, Becker & Poliakoff stepped in to pursue malpractice claims against Ruden McClosky:

The roots of the discrimination case began when Young and 55 other plaintiffs sued BellSouth, alleging failure to promote blacks to management.

Their attorneys at Ruden McClosky settled the case for $1.6 million with BellSouth in 1997, according to an exhibit accompanying the malpractice lawsuit filed against Becker & Poliakoff on behalf of Young. Plaintiffs split $300,000, or about $5,000 each. The plaintiffs later learned the settlement agreement called for Ruden to receive $120,000 a year for four years, enter a consulting agreement with BellSouth and agree to file no employment cases against the company for a year.

Angered by that outcome, the plaintiffs hired Becker & Poliakoff to sue Ruden for malpractice and breach of fiduciary duty.

Ruden settled for $8 million in 2002, and the proceeds were distributed among 54 plaintiffs, according to memos that became part of the court record in Young’s malpractice case against Becker & Poliakoff. Carl Schuster, managing partner of Ruden McClosky, declined comment, citing a confidentiality agreement with all parties.

“We have been sworn to secrecy,” he said. “It’s bad enough that Becker & Poliakoff got hit with a $4.9 million judgment. We have a settlement agreement, and I could be sued for violating it by saying anything.”

So Becker's firm got involved in order to sue Ruden for malpractice, which settled for big money, and then itself got sued for malpractice.

A few things interested me about the story.

One -- B&P's alleged net worth:

Additionally, Palm Beach Gardens forensic economist Bernard Pettingil Jr. testified about Young’s projected wage losses at BellSouth. He estimated Becker & Poliakoff’s revenue for the last five years totaled $49 million per year. Zobel asked for Becker & Poliakoff’s total net worth, which the expert witness estimated to be $10 million.

They're only worth about 10 million, after taking in $49 million per year for the last five years?

Also, consider the settlement negotiations:

In mediation, Becker & Poliakoff offered to settle for $25,000, but Young walked out, Zobel said. A week later, the offer was raised to $100,000. In trial, it rose to $500,000. By closing arguments, Becker & Poliakoff offered $900,000, and Young turned them down, Zobel said in an interview.

Jurors awarded Young $4.9 million, including $4.5 million in punitive damages and $394,000 in lost wages on Sept. 16. The punitive damages are especially harsh for Becker & Poliakoff as malpractice insurance generally does not cover these types of damages.

25k at mediation?

I know it's hard to value punis for settlement purposes, but these are very experienced lawyers and they didn't evaluate and quantify this risk? Or if they did they couldn't bring themselves to offer more than $100k before trial?

I also like Alan's explanation of what went wrong:

“Apparently, the jury did not believe me, the supervising lawyer who no longer works for us and came from Mississippi to testify and the written documents that supported everything we said,” he said. “Instead, they believed a rogue lawyer who had been disbarred.”

Hmm, what exactly do you think that might mean?

Don't Blame Us -- Blame Romeo The "Rogue" Lawyer.

For all you Becker & Poliakoff fans, there is this:

A West Palm Beach woman said she was victimized by BellSouth when she worked for the phone company, and then victimized again by her own attorneys, who messed up her case and hid the mistake from her until it was too late.

A Circuit Court jury on Wednesday agreed and said Becker & Poliakoff, the Hollywood-based law firm which represented her, must pay her $4.5 million for its mistake.

"I just said to myself 'Thank you God because you are the only one I have to thank'," Jackie Young said after hearing the jury verdict in her favor Wednesday. "After all that I've been through I never thought I'd be standing in this place."

Young was one of 54 employees who sued BellSouth in the 1990s alleging racial discrimination against black employees. Eventually a judge dismissed Young's suit in September of 2001 because of errors in the lawsuit filed by Becker & Poliakoff, according to the compliant she later filed against that law firm.

Becker & Poliakoff was founded in 1973 and now has more than 100 attorneys and offices across Florida as well as the Bahamas, France, Israel and the Czech Republic, according to the firm's Web site.

The firm did not tell Young that her case had been thrown out until October of 2002. By then it was too late for Young to fix the problems in the suit and refile it, so her claim against BellSouth was permanently dismissed with no avenue to appeal in the future, according to Young's attorney, Craig Zobel.

Zobel said the fact that it took a year for Young's attorneys to tell her about the case being dismissed was not a simple oversight.

During that time they settled the overall class action lawsuit with BellSouth and collected $2.9 million in attorney's fees. Young said that if she had known how her attorneys had made mistakes in her case, she would have told other plaintiffs to dismiss Becker & Poliakoff and the case would not have been settled.

"They were chasing a lot of money and they let her slip through the cracks," Zobel said.

Alan Becker, however, says it was all the fault of a "rogue" lawyer:

A senior partner at the firm, Alan Becker, issued a statement after the verdict saying it was the fault of the specific lawyer who handled the case, Thomas Romeo, not the law firm.

Becker said Romeo was a "rogue lawyer who filed this case without authority and contrary to his supervisor's clear direction. Unbeknownst to the firm and his colleagues, the case was filed and dismissed due to his error. Mr. Romeo purposely hid that information from all parties."

Becker said Romeo was later fired from the law firm and disbarred. Romeo was disbarred in 2003, according to the Florida Bar.

Ok, but what about the $2.9 in attorneys' fees that the firm collected? Did Romeo hide that too?

Despite whatever happened with this rogue Romeo, I'm sure Alan feels tremendous sympathy for the poor victim:

"We disagree with the verdict blaming the firm for (Romeo's) rogue behavior and we believe the damages are excessive," Becker said in his statement. "We will appeal."

Hey, even sympathy has limits.