When Chemical Crises Strike with Ed Gentle and Kip Benson

Soon after emergency response teams scramble into action to address chemical fires, explosions, or other toxic events, attorneys begin gathering and analyzing information either to mitigate corporate risk or to seek remedies for anyone impacted by such an event.

Listen to my interview with Edgar C. "Ed" Gentle III and Katherine "Kip" Benson of Gentle, Turner & Benson LLC, about legal activity that goes on in the immediate aftermath of a toxic event, using as a backdrop the recent chemical plant disaster that forced 17,000 Conyers, Georgia, residents to evacuate and many more to  shelter in place as a toxic plume hung stubbornly over the homes of as many as 100,000 residents. Ed and Kip draw on their deep experience resolving this type of litigation -- including the settlement of a 20-year-old disaster at the same location -- to discuss the flurry of activity that unfolds at law firms and inside legal departments within hours of a disaster. They also share the impact on such cases of a recent $600 million court-approved settlement of claims that followed the highly publicized toxic train derailment that occurred in East Palestine, Ohio, in early 2023.

This is Ed Gentle's second appearance on the podcast. He spoke with me on Episode 48 titled Medical Monitoring for Modern Times. He was the featured speaker on that subject for an HB CLE webinar distributed on the West LegalEdcenter, then Kip Benson joined him for an advanced level webinar on the Medical Monitoring Tort Remedy. You can download his article on the subject for free as published in the Journal of Emerging Issues in Litigation.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation, a brand of Critical Legal Content (a custom legal content service for law firms and service providers) and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at [e-mail].

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Episode Transcript

Tom Hagy (00:01):
Welcome to the Emerging Litigation Podcast.
This is a group project drivenby HB Litigation, now part of
Critical Legal Content and VLEXCompany's Fast Case and Law
Street Media.
I'm your host, tom Hagee,longtime litigation news editor
and publisher and currentlitigation enthusiast.
And now here's today's episode.

(00:22):
If you like what you hear,please give us a rating.
And now here's today's episode.
If you like what you hear,please give us a rating.
Today we're going to give youan update on something that just
recently happened.
I wanted to explore from a legalstandpoint what goes on in the
immediate aftermath of a toxicevent.
One just happened on Sunday,september 29th, in Conyers,
georgia, about 25 miles east ofAtlanta.

(00:45):
Correct me if I'm wrong.
There was a catastrophicchemical reaction.
I guess to you and me it wouldlook like a fire, and I think
that's what everybody called it.
Technically, it's a chemicalreaction which took place at a
factory that makes chemicals forswimming pools and spas.
It caused the evacuation of17,000 people, who have been
instructed to shelter in place.

(01:07):
On October 3rd, the AtlantaJournal-Constitution wrote that
a massive smoke plume continuedto hover over Rockdale County
and surrounding areas.
The plume carries chlorine,chloramine, bromine and other
chlorine compounds.
I invited my guests to talkabout.
What's keeping attorneys busyat this early stage.

(01:29):
Do the parties look to settlequickly?
What kind of claims might wesee?
What are the plaintiffattorneys doing to gather
information, identify people,map affected areas?
What are the people doing tofind representation?
What might defense counsel belooking to do?
Are they looking at earlycompensation for residents and

(01:50):
what would be the pros and consif they do?
And then, what about medicalmonitoring?
When you've got things likethis that go on, you know if
there's going to be a diseasethat takes a while to develop,
so let's talk about that too.
So a quick update, literallybefore the smoke has cleared.
Residents have filed at leastsix suits seeking damages for as

(02:13):
many as 90,000 people.
The defendants are plant ownerBioLab and its parent, kik
Consumer Products.
The suits are filed in stateand federal court.
They focus on health andproperty-related issues tied to
the emergency evacuation andshelter-in-place orders,
according to the AtlantaJournal-Constitution.

(02:36):
I welcome back to the podcastBirmingham Alabama attorneys Ed
Gentle and Katherine or KipBenson of Gentle, turner and
Benson LLC.
Both attorneys bring years ofexperience administering
billions of dollars worth ofmass tort settlements.
You can read about their deepexperience and both of their
impressive legal and scientificdegrees.

(02:58):
In the show notes I thought ofEd because I knew he handled the
settlement of a case arisingfrom the same location in
Georgia in 2004.
Even though I was told therewouldn't be math, that appears
to be 20 years ago.
Here's a quick take on what'stranspiring in Georgia with Ed
Gentle and Kip Benson of Gentle,turner and Benson.

(03:21):
I hope you enjoy it.
Tell me a little bit about whathappened in 2004 and what your
involvement was.

Ed Gentle (03:28):
I'd be happy to so.
In 2004, may 25 and 26 of 2004,at the same site, but maybe a
different part of the site,there was a burn, a fire, and
the claimants evacuated acertain area, and then there was
a bigger area in which therewas an area of concern from the

(03:49):
smoke and soot from the fire.
And what happened in that case?
There are two key lawyers,roger Orlando and Lou Garrison,
and they had a fair number ofclients and they asked for
what's called a class actionsettlement, which means you have
representatives of the impactedgroup and you get the court to

(04:09):
approve them as named claimantsfor all the group and then, if
you don't like that, if you'rein the area, you can opt out or
stay in, and most of theclaimants stayed in.
So they rounded up claimants,they brought their class action,
they settled with.
The company's name at the timewas Chemtura C-H-E-M-T-U-R-A.

(04:29):
It later went into bankruptcyand it may have sold this plant
to someone else now, that'd bemy expectation.
And so they had a settlementand we administered it and paid
it out.
What they did, what you wouldexpect in most of these cases,
for example, train wrecks arevery similar.
You have an explosion or a fire,you have people evacuate or
shelter in place, and then a lotof times they have a choice of

(04:53):
filing two types of claimsno-transcript.

(05:17):
If, however, you're greatlyimpacted let's say you had some
physical problems as a resultsay ingesting the smoke or, in
this case, the new case thechlorine and have a doctor's
care, maybe some long termmedical problems you could file
for what's called higherbenefits or special benefits.
Likewise, if the property hadsome severe damage, you could

(05:39):
look to that.
So that's the fork in the roadfor the claimants, usually in
this case.
So I think the words of thewise would be to keep your
records, maybe to keep a log soyou can document what happened
to you and when and what thebackup may be.
So what's happening now,ironically, is a lot of these
claimants in the new case arecalling our firm because we had
the old case and we're referringthose lawyers to Roger and he

(06:02):
told me the other day he's inthe process of a wash and repeat
, he's going to probably do thesame sort of thing.

Tom Hagy (06:09):
That's what he's doing now.
So that's the activity isidentifying who may be affected,
how they may be affected, whichbucket they might fall in.
Is that what's?
Is this kind of the gatheringof evidence stage for him?

Ed Gentle (06:23):
It is, and usually what he'll do is he'll have an
expert.
You saw, in this 2004 casethere's a nice map that
documents what was theevacuation area and what was the
bigger impact area.
So you usually get an expert.
Usually they're experts in thewind dispersal of contaminants
and they map out what's calledthe area of concern and that

(06:44):
would be the set of claimantsthat are potentially in this
case.
Okay.

Tom Hagy (06:49):
All right.
So residents are contacting you, you're referring them to him,
and so what, I guess on thedefense side, what would you
anticipate is going on with thecompany and its firms?
What might they be doing?

Ed Gentle (07:04):
What usually happens in these cases and I think CSX
designed this and it was seenagain in BP the defendants,
shortly after this sort of anevent, often set up a pay
station and you have paymentsand often with checks, with a
release on the back, andclaimants can get in line and
negotiate with the paymaster onhow much they should be paid to

(07:24):
release their claim.
And that's done a lot in trainwrecks.
It was done in BP, as you'llremember, with Ken Feinberg
getting $25 billion to do that,and the advantage to the
defendant is you're using $0.01.
That is, there's no legal feefor plaintiff lawyers being
subtracted, so the money goes along way.
The claimants like it becausethey get paid immediately as

(07:46):
opposed to one or two years intothe future, and so that's a
good way for the defendant totake some of the steam out of
the case.

Tom Hagy (07:53):
I guess this one they're drawing a distinction.
This was a chemical reaction,not a fire.
That's right as a laypersonwhen I see just stay indoors.
That just always strikes me asI guess that's good.
It just doesn't seem.
It just doesn't give me a lotof reassurance, I guess.

Kip Benson (08:09):
It's certainly a good safety measure, though,
yeah it's common in this kind ofthing to have a
shelter-in-place order the onesthat are closer to the area.
They may have evacuated which Ibelieve they did, but the
shelter-in-place, they want tokeep you out of the air, so they
want you to turn off your airconditioning, insulate yourself

(08:31):
in an area where you may not beas exposed.
So that is a common thing.

Ed Gentle (08:34):
It's really the only practical remedy for a big
community.

Tom Hagy (08:38):
What do you expect to happen next?
What usually happens is there'sa lawsuit filed.
I just wanted to drop this inhere.
Since I recorded this with Edand Kip, there were already
quite a few suits already filed,class actions on behalf of tens
of thousands or as many as100,000 folks against BioLab and

(08:59):
Kik, the parent company.
So things happen quick.

Ed Gentle (09:03):
Parties enter into what's called a mediation or
some settlement talks.
They try to work up asettlement.
When that happens, they oftenbring it to Kip and me to
fine-tune it to make sure itcomplies with certain rules.
For example, you want tosquarely state what part is for
personal injury and what part isfor property damage.
Personal injury a lot of timeshas to go through a medical lien

(09:25):
process, that is, medicare,medicaid, blue Cross and other
private insurers.
If you have personal injury,property damage doesn't require
all that, so you can often paythat quicker.
That's a big plus.
The other thing they ask us todo many times is to look at it
for fairness.
We compare it to other caseswe've had, because the court
will be interested in any classsettlement to decide whether

(09:48):
it's fair and reasonable basedupon all the circumstances.
What about?

Tom Hagy (09:52):
on the medical monitoring side.
Is it too early to talk aboutthat, or would you anticipate
there?

Ed Gentle (09:57):
As I remember, georgia is not a medical
monitoring state.
We only have 12, as youremember, tom Yep.
A lot of times, though, theplant lawyers will ask for it.
This might be a bettercandidate than the one 20 years
ago, because chlorine iscertainly an established oxygen
and has some long-term impact,so it could be a remedy to
explore.
It may very well be explored.

(10:17):
We haven't heard that fromRoger, but over the years he's
looked at that in differentcases, so it could appear here.

Tom Hagy (10:24):
Now, at this point in the interview I asked Ed if
there was anything else hewanted to talk about.
He wanted to draw somecomparisons and comment on the
impact of the case.
In East Palestine, ohio, wherethere was a, you might remember,
there was a train derailmentand there that released toxic
chemicals and caught fire, andsince then there's been class

(10:46):
action lawsuits filed againstNorfolk Southern Railway by
residents, businesses andproperty owners within 20 miles
of the derailment site.
Recently a federal judgeapproved a $600 million
settlement from Norfolk Southernto those affected by the
derailment and some say this isprobably the largest settlement
in US history for a railroaddisaster.

(11:07):
Settlement's going to bedistributed to all affected
families.
Each person is estimated toreceive about $6,000 is what I'm
reading.
So back to Ed.

Ed Gentle (11:18):
If you look at these paydays in this 20-year-old case
, they're very small.
You can see that, for example,for individual claims they range
from $60 to $230, propertyclaims $70 to $245, business
claims $1,000 to $4,000, andspecial damages for, say, 20% of
the population.

(11:38):
The East Palestine case reallyadded a zero to what you
normally see in these cases andI think that probably will bode
well for future such disasters,be they train wrecks or factory
fires or anything similar.

Tom Hagy (11:53):
That may have an impact on this case.
We don't know for sure, butthat case is going to influence
others behind it, as you said,definitely.

Ed Gentle (12:01):
In that Ohio case the court tossed out a medical
monitoring remedy.

Tom Hagy (12:05):
Okay, is that?
I can't remember if Ohio is amedical monitoring state.
It's not, it's not.

Ed Gentle (12:12):
It's a back to the future type of thing.
You can't have a remedy untilyou're hurt.
But I don't know if I'm goingto be hurt if you don't monitor
me.
So there you have it.
It's a dilemma.

Tom Hagy (12:21):
That concludes this episode of the Emerging
Litigation Podcast, aco-production of HB Litigation,
Critical Legal Content, VLEXFast Case and our friends at
Losty Media.
I'm Tom Hagee, your host, whichwould explain why I'm talking.
Please feel free to reach outto me if you have ideas for a

(12:41):
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Thank you for listening.