The problems of vinyl chloride are well known. Nearly two years ago, I wrote a long post about a court shockingly dismissing expert testimony about the dangers of the chemical. Let’s be clear when it comes to vinyl chloride: every Material Safety Data Sheet (MSDS) lists it as a carcinogen. The International Agency for Research on Cancer, National Toxicology Program, and the Occupational Safety and Health Administration (OSHA) all list vinyl chloride as a carcinogen. The Centers for Disease Control and Prevention puts vinyl chloride at #4 on its priority list of hazardous substances, just below mercury and just above polychlorinated biphenyls.
So when 180,000 pounds of vinyl chloride spilled in the Paulsboro area when a Conrail train derailed, it was big news for the people there. The biggest problem with vinyl chloride is liver cancer: it may be years before a person exposed to vinyl chloride develops liver cancer, not least because the vinyl chloride remains in the adjacent groundwater in the Mantua Creek watershed in Gloucester County, where it can be slowly consumed by residents without their knowledge.
Similarly, there’s nothing new about railroad companies trying to pull a fast one to avoid their legal responsibilities. Just last week, Norfolk Southern went through extraordinary lengths to try to hide a surveillance video shot from one of their trains that hit a delivery truck. So the ABC 6 Action News report late yesterday was no surprise:
As Conrail started to clean up the chemical spill, rumors about cash payouts started spreading.
“It sounds kind of strange that they are going to give everybody $500 to be quiet, I guess,” Ward said.
Like dozens of other residents we observed, Ward went to the Family Assistance Center to file a claim and listened as a Conrail representative promised him cash to sign papers.
“By signing this release you are forever barred from bringing a lawsuit or any claim against any of the companies or individuals listed on the release for any reason,” a Conrail representative can be heard saying in an undercover video.
As ABC notes, “The contract releases the company of any liability for the incident including unknown injuries spanning from brain damage, dementia, cancer, and even death.” $500 bucks for your liver cancer. Fair deal? Of course not, no one would take that, so they start lying to people:
A concerned resident agreed to take our hidden camera inside to document the process on tape.
“Giving up the right to be a part of the class action lawsuit means that you’re giving up the potential to receive more money than your offered settlement payment,” the representative said.
They were offered various amounts of money.
“The railroad is offering you $650,” the representative told the resident.
Those affected were told they could sign the papers now or they could risk losing a chance at money in the future.
“If I sign this and I was to get cancer, what would happen?” the resident said.
“Well, first of all they would have to prove it was caused by the derailment, and how are they going to prove that?” the representative said.
We should call this what it is: lying. Conrail knows vinyl chloride causes liver cancer, and they know toxic spill lawyers can prove it. How would we lawyers prove that? The same way we prove all other environmental contamination cases: through science.
According to the Agency for Toxic Substances & Disease Registry (“ATSDR”), exposure to vinyl chloride can cause liver cancer, brain cancer, lung cancer, cancers of the blood, and damage to sperm and testes; and exposure to 1,4-dioxane can cause liver and kidney diseases and cancer. We don’t have to go far to find studies showing a link, consider this study from 2010 published in Occupational & Environmental Medicine, concluding “occupational exposure to vinyl chloride monomer … may increase the risk of liver cancer and leukemia. When [vinyl chloride monomer] exposure was controlled at worksites, mortality from these cancers returned to background levels.”
The litigation over the Paulsboro spill has only just begun. New Jersey, thankfully, is one of the few states that permits a “medical monitoring” tort. The Supreme Court of New Jersey’s decision in Ayers v. Twp. of Jackson, 106 N.J. 557, 525 A.2d 287 (1987), held that:
[T]he cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.
(That case involved chemicals including “acetone; benzene; chlorobenzene; chloroform; dichlorofluoromethane; ethylbenzene; methylene chloride; methyl isobutyl ketone; 1,1,2,2-tetrachloroethane; tetrahydrofuran; 1,1,1-trichloroethane; and trichloroethylene” leeching from a landfill into the Cohansey Aquifer.)
$500 wouldn’t even cover the first couple of visits available under a successful medical monitoring lawsuit, much less a life cut short by liver cancer.
But to me the real shame isn’t that Conrail is trying to get people to sign these releases - did we expect anything more? - but that courts generally enforce these “agreements” without question.