Published in the Asbury Park Press
SOME people are questioning how renowned Massachusetts lawyer Jan Schlichtmann plans to prove pollutants in ground water may have caused higher rates of some childhood cancers in Dover Township.
But Schlichtmann doesn't have to make the connection, says Lawrence G. Susskind, director of the MIT-Harvard University Public Disputes Network Program on Negotiation, at Harvard Law School.
"There's never been a direct link proved in 90 percent of Superfund sites," Susskind said in an interview last week. "It's the perception of what might (be the cause) that brings people to come together to negotiate. When you go to court, the standard of proof is very difficult to meet."
Nobody knows that better than Schlichtmann, who fought an eight-year legal battle trying to prove that the dumping practices of several Woburn, Mass., companies had contaminated the public water supply and caused a childhood leukemia cluster.
Schlichtmann won a $9 million settlement for the families, which he said was far less than they deserved for the loss of the children. The legal battle, profiled in the best seller "A Civil Action," went all the way to the U.S. Supreme Court.
Schlichtmann, 46, doesn't want to fight the same kind of battle in Toms River.
He and the Cherry Hill Township law firm of Cuker and Williams announced last week that they will be representing the interests of 40 Toms River families during the massive state and federal probe into the cancer rates.
"We're here for the long haul," Schlichtmann said.
Schlichtmann wants an "open and honest dialogue" with Union Carbide Corp., Ciba Speciality Chemical Corp. (formerly Ciba-Geigy Corp.) and United Water Toms River. He doesn't want to spend any time in a courtroom, but has not ruled that out as an option.
What Schlichtmann is doing is nothing new, according to Susskind.
"It's something that's been happening for more than a decade, particularly with regard to situations in which there is disagreement about science and technology or remediation," Susskind said.'
Negotiated settlements can be achieved, provided all the "stakeholders" in a particular pollution case are involved and cooperative, he said.
"Typically, given the strict standard of liability required on one side, and the awful cost of extended conflict for the company and the community, people often find a negotiated solution is better than going to court," Susskind said.
United Water Toms River and the state Department of Health have said the company's public water supply continues to meet all state and federal drinking water standards.
But statements from companies saying they meet state and federal regulations don't mean much to people who live in an area with elevated cancer rates, Susskind said.
"From the standpoint of people in the area, it doesn't matter," he said. "If there are elevated cancer rates, who's going to do something about it is what matters."
Susskind also runs the Consensus Building Institute, a nonprofit group based in Cambridge, Mass., that has negotiated a number of pollution cases.
The group is currently involved in what he terms the "largest groundwater cleanup in America," at the Massachusetts Military Reservation on Cape Cod. The Air Force used the facility to train personnel in how to extinguish airplane fires.
"They'd set the planes on fire, then spray them down," Susskind said. "All those solvents seeped into the ground water for extended periods of time. That has now contaminated or threatened to contaminate the ground water in five towns on Cape Cod. It's an important recreation area and important for the cranberry crop."
There is no question the Air Force is responsible for the contamination, but that's about all anybody agreed on at first, he said.
"Everybody was unhappy with the plan the military came out with," Susskind said. "This time, they are using an elaborate mediation process to get everybody involved day by day . . . without further threat to the water supply."
That means bringing every stakeholder to the settlement table, something that also will be necessary in Toms River, he said, even though a massive state and federal investigation is already underway.
"Is the probe asking questions in a way consistent with the concerns of all the parties?" Susskind said. "Is it being done by technical people acceptable to all the parties? If not, you might as well throw it out and start over."
All the parties involved need to consider whether it's worth going to court, before moving on to settlement negotiations, which are usually handled by an outside mediator.
"That has to be handled in a way that doesn't compromise anybody's litigation options," Susskind said. "You need professional help to make sure the investigation is on track and doesn't foreclose the litigation. What they don't know at this stage in Toms River is: What will everybody else be willing to do?"
Susskind said the Toms River families did well in choosing Schlichtmann.
"He's an effective advocate," Susskind said. "He'll do what's appropriate for the people he's representing."
Even though Dover Township probably has limited liability, the township should have a seat at the settlement table, Susskind said.
"They have a responsibility to advocate on behalf of the people in the community," he said.
Schlichtmann has already hired a battery of experts to help evaluate the data.
"It's money well-spent," Schlichtmann said. "I feel that in Toms River, we will gain another insight, like in Woburn. It's worth the investment of time, money and energy. I think Toms River is going to teach us a lot."
Patricia A. Miller covers the Ocean County beat from the Toms River bureau of the Asbury Park Press. "Ocean Diary" appears Sundays.
Published on December 21, 1997