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Sunday, September 28, 2014

The Crusading Revolution - 'Life Cycles' And The Career Of Erin Brokovich


Robert Evans

If you read my SECOND BLOG (and if not why not?), then you'll see I've used one of my favourite quotes from the post on Diana Ross, again in this post. Why would that be? We all think we know the Erin Brockovich story, right? We've seen the film. We loved Julia Roberts in the title role and so did the critics. In fact, she won a Golden Globe and an Oscar. She was portraying the real-life Erin, who was a genuine environmental crusader, whose actions caused the good citizens of Hinkley to receive just payouts from an evil utility company. They had poisoned their drinking water with a chemical, which had given them a long list of illnesses. But, most importantly, it was a proven carcinogenic.

Well that may or may not be YOUR view, but it would be a popularly-held view, thanks to Hollywood. However, before I go any further, I've got to tell you about the curious path that got me here in the first place. After all, this is old news, why would I dig it up? You see, I actually wanted to write about a piece of research I did back in the 90's called 'The N Factor In Executive Survival'. This was a validation study based on work done by the UK, Cranfield School Of Management. It was, of course, new to Australia back then and I received some press coverage and wrote an article for the Australian Institute of Management monthly magazine. I couldn't find any of this on the web, so I wanted to re-introduce it myself. I will still do this, however I also wanted to illustrate with a good 'N Factor' case, which would amount to one of the highest-profile, most vociferous, maverick operators I could think of. Then, the name of Erin Brockovich jumped into my head. Anything but your "good corporate player" and everyone knew her. Yes, she'd do just fine.

Now, in a twist of events, I'm going to tell you about my 'Life Cycles' research first. You know how it goes by now, don't you? Just add 36 to her year of birth and see if you can see any evidence of life changing behaviour/significant career achievement/or breakthroughs that lead to it. It's the same goddamn question I ask every time. It's maths and stats and nothing else. Well, Erin was born June 22nd. 1960, so the period we will be investigating is June 22nd. 1996 to June 22nd. 1997. What happened? Was there a highlight? Did it include a period of frustration beforehand? In fact, why don't you stop reading right now and check it out for yourselves.........

Did you find this? Erin Brockovich finally receives a huge payout of $2 million in legal fees when Pacific Gas & Electric (a large public utility) agreed to record $333 million private arbitration settlement. The original settlement date was June 12, with the money delivered a few weeks later. So, at the start of her age 36 'Year of Revolution'. In the final scene of the movie it shows Erin's boss handing her the bonus money (which was some time after) and saying that he had changed the amount. She explodes into a complaint that she deserves more respect, but is astonished to find that he has increased it - to $2 million.

This was life-changing for her in every regard. She has gone on to a very lucrative and substantial career in the legal world, as an expert in related environmental lawsuits against company negligence. She has her own consultancy - Brockovich Research and Consulting - as well as consulting for Girardi and Keese (who were the lawyers in the movie) and helping establish Shine Lawyers in Australia. There is, of course, the movie (which netted Julia Roberts an Oscar and $20 million) and her 2001 book Take It From Me: Life's a Struggle But You Can Win. She has hosted Challenge America with Erin Brockovich on ABC and Final Justice on Zone Reality. She has also received an Honorary Doctor of Laws from Lewis and Clark Law School, Oregon.

Prior to her involvement she was a twice-divorced, unemployed, working-class mother of three (even though she had a college degree in journalism). The movie shows that she was involved in a car accident with a doctor and was suing him. Her lawyer, Ed Masry (Albert Finney), expects to win, but Erin's explosive courtroom behavior under cross-examination loses her the case (so from my angle she's a classic 'N Factor'), and Ed (shown below with Erin) will not return her phone calls afterwards. One day he arrives at work to find her in the office, appearing to do work. She says that he told her things would work out and they didn't, and that she needed a job. He feels bad for her, and decides to give her a try at the office.

So, just an office clerk with no legal qualifications or experience back in 1993. I won't reprise the movie here, but suffice it to say, that until there was a settlement, her circumstances were largely unchanged and this was not guaranteed at all. Lawyers for PG&E planned to keep stalling for years if they could. Her big breakthrough moment undoubtedly happened in her age 36 'Year of Revolution'. I was amazed, as I always am, by my own research. But there it is. I could have left it right here. Nice, positive uplifting article with a great finish. That's certainly what THEIR view would prefer I do. You know, Erin, Girardi, Hollywood and the whole media image thing.

I didn't mean to, but then I peeked under the carpet. I didn't have to, but it's in my nature I guess. You see THE TRUTH is invariably stranger and more fascinating than fiction (and the movie was a dramatised account, which told only the positive half the story). I didn't know any of what I found beforehand, except that maybe her findings were a bit controversial. What I found was material of an explosive nature. This comes from several sources (such as The Truth About Erin Brockovich and "Erin Brockovich" - The Real Story) as well as a number of biographic summaries. It says, in brief, there were major problems with the case.

1. It was based on flawed science.
2. The legal process was flawed and has caused a review on how such cases are to be dealt with.
3. Many of the plaintiffs in the case consider that they were 'screwed-over' by their own lawyers.

So, without getting lost in too much detail, let's have look at each area, shall we?

1. Flawed scientific evidence

OK, first off the guts of the case is that a chemical called Hexavalent Chromium (Chromium 6) is a cancer-causing agent and was used extensively as a rust protector by PG&E from the 1950's onwards. It contaminated the drinking water that supplied the nearby town of Hinkley, California. Brockovich gathered citizens' evidence and found many cases of tumors and other medical problems. Evidence of a cover-up by PG&E (showing they had lied when they said they used a safe form of Chromium) sealed the deal.

Case closed wouldn't you say? Well not according to investigative journalist and science author Michael Fumento, who checked it out. As he reported in the Wall Street Journal :- "no one agent could possibly have caused more than a handful of the symptoms described, and Chromium 6 in the water almost certainly couldn’t have caused any of them" (which was independently corroborated by New York Times science writer Gina Kolata).

Brockovich, by her own account, went to UCLA’s library and claims to have found as many as 120 articles that said chromium 6 was carcinogenic:- “In each and every article, it clearly depicts that people who have exposures have chronic nosebleeds, kidney problems and colon problems,” she said during an interview. Hmm, 'chronic nosebleeds, kidney and colon problems' are not cancer, but we'll let this sit at the moment.

Other scientific studies, however, from contaminated spots in China, Scotland and the United States, have failed to find cancer-causing properties in waterborne chromium 6. A toxicologist at the U.S. Department of Health and Human Services, Sharon Wilbur, says that chromium 6 in water doesn’t harm humans. “It’s very unlikely that people could die from drinking chromium 6 in the water, even over time,” she said. Because the arbitration that eventually decided the case was closed to the public, it’s unclear what sort of proof plaintiffs attorneys offered to support their claims.

The most damning evidence, however, is the long-term epidemiology of the citizens of Hinkley. A study, released in 2010 by the California Cancer Registry, showed that cancer rates in Hinkley "remained unremarkable from 1988 to 2008". Not unnaturally Brockovich and Girardi etc. have hit back citing their many poignant testimonials and claiming the epidemiological data was biased. Well they'd pretty much have to wouldn't they, because THEIR entire credibility is being attacked. The rebuttal, however, did not appear to rely on competing scientific evidence.

You can read it all for yourselves if you simply search "Erin Brockovich criticism". Page 1 of Google lists articles by ,The Guardian/The New York Times/The Daily Beast and TIME. However, in the interests of balanced coverage I went to the EPA's own website. It said that the science available in 1991, indicated that some people who use water containing chromium in excess of the drinking water standard, over many years, could experience allergic dermatitis (skin reactions).

In 2008, it initiated a comprehensive review and in 2010 provided a draft discussion paper, which has not yet been finalised. The draft :- "Toxicological Review of Hexavalent Chromium" provides scientific support and rationale for the hazard and dose-response assessment pertaining to chronic exposure to hexavalent chromium via ingestion. Peer review and independent testing is ongoing, which has been stated as being most important.

The Girardi/Brockovich camp may well be crowing about this as of now, but we do await the final report. However, in the reverse, it would confirm that with the science available at the time of the PG&E settlement, no evidence of links to cancer existed and that though the jury may be out on this currently, the area is still under investigation. It actually made me wonder out loud :-' if such evidence had been overwhelming, then it shouldn't have taken around four years to get confirmation and action.'

2. Flawed legal process

Next, let's go to the legal shenanigans that went on in this case. Many plaintiffs in the Hinkley case say the movie misrepresents what happened. Far from being the populist victory the movie depicts, the Hinkley lawsuit was a case study in how the rise of private arbitration, as an alternative to costly public trials, is open to potential conflicts of interest and cronyism. The case never went to trial, because Pacific Gas & Electric, the utility accused of polluting Hinkley, and the plaintiffs’ lawyers agreed to private arbitration before a panel of for-hire judges, some of whom had socialized with the plaintiffs’ attorneys.

After the settlement, the Hinkley plaintiffs’ attorneys took some of the arbitrators in the case on a steeply discounted Mediterranean luxury cruise (see the sidebar for details). The fraternization between the private judges and the plaintiffs’ lawyers led California Supreme Court Chief Justice Ronald George to begin a study of the business of arbitration (an example of which is shown below). The trouble with civil arbitrations, such as the Hinkley case is that public-welfare issues can, in effect, be decided secretly between corporations and high-powered plaintiffs’ attorneys, who represent unsophisticated victims. In the wake of the PG&E litigation, for example, there is no public record of whether an enormous, publicly held utility did or did not poison a town.

“This is a troubling trend, especially when it concerns the public domain of toxic tort cases,” said Erwin Chemerinksy, professor of legal ethics at the University of Southern California. “It means there’s decreased public awareness of what’s going on in the public domain.” One big reason for the boom in this whole area is money. Public judges, who earn about $150,000 a year in the public courts, often retire early to become, in effect, rent-a-judges. By doing so they can earn between $100 and $500 an hour — easily doubling or tripling their salaries. Arbitration firms often have powerful attorneys or corporations as steady clients. Also the rules that apply in open court often aren’t followed in private court. In addition no laws prevent the hired judges from accepting gifts from attorneys.

As it turned out, Girardi had ties to at least three of the private judges in the PG&E case:- Jack Tenner, John Trotter and Jack Goertzen. Tenner, a retired Los Angeles Superior Court judge, officiated at Girardi’s second wedding, in September 1993. Goertzen has been a friend of Girardi’s for many years, even though he says the relationship is only professional. In June 1996, when PG&E appeared to be stalling, Girardi learned that PG&E’s outside counsel, Haight, Brown and Bonesteel of Santa Monica, had hired private investigators to snoop into his bank records and private affairs, as well as those of his clients. It’s against California law to obtain confidential private records. One of the firm’s operatives, who had just been fired, took the damning information to Girardi.

The investigator, Ben Ortiz, a retired LAPD officer, was suing his former employers. Buried inside this second case, worthy of a John Grisham novel, are allegations of racketeering and collusion among judges and attorneys throughout Los Angeles County. David Sharp, the attorney in that latter case, alleges that Girardi and Lack used the Ortiz affair to pressure PG&E into making a large settlement - “part of which was used to curry favor with active and retired judges involved in that case and others,” according to Kathleen Sharp (who is the author of this explosive expose). I don't know about you, but this certainly sounds dodgy to me. And murky...

3. Poor Treatment Of Plaintiffs

The last and most damning evidence of all, however, lies in the hands of those, for whom the whole process was meant to benefit - the plaintiffs. “The movie is mostly lies,” said Carol Smith, one of the real-life plaintiffs. “I wish the truth would come out because a lot of us are upset. I understand the movie is going to make Erin and the attorneys out to be heroes, but where’s the rest of our money?”

There is no question about the big profits in these privately arbitrated toxic tort cases. Basically, when local lawyer Ed Masry based in Thousand Oaks, California, realised this case was beyond him and invited the big boys (namely Girardi and Keese along with Lack) to come in; they took over and told the townsfolk they would do it all for 40% of the settlement money, take it or leave it. What is 40% of $333 million? Oh, it's around a cool $133.6 million. In addition Girardi also billed $10 million for undetailed expenses, in a violation of the American Bar Association's Model Rules of Professional Conduct.

However what is left over for the 650 odd plaintiff's do you think? You know, the townsfolk who told their stories, without which there would be no case, the proceedings of which, co-incidentally, they were all-but banned from attending:- “We had no idea what was going on and weren’t allowed to watch,” said Lynn Tindell, a plaintiff. They figured about half-a-million each minus lawyer's fees (about $300,000). They were shocked to learn how little most of them got.

Dorothea Montoya received $60,000; Christine Mace got $50,000; Lynn Tindell $50,000; Tiffany Oliver got $60,000. All of these people were longtime residents, who had suffered well documented medical problems :- “It didn’t make sense why my husband, who’s had 17 tumors removed from his throat, got only $80,000,” said Smith. Roberta Walker (shown below), who had started the case and was depicted in the movie as Donna Jensen, didn’t get the $5 million that her movie counterpart received. “It’s a big fabrication,” said Walker. “People look at $333 million and think, ‘Wow! You got that much money?’ But no.”

They said the distributions were based on evidence from medical records :- “But no one ever looked at my medical records,” said Smith. “I’m sure of that because my doctors told me so after I asked.” Other plaintiffs echoed the same complaint. In fact, fairly or not, some residents say they saw a pattern in the distribution method :- “If you were buddies with Ed and Erin, you got a lot of money,” said Smith. “Otherwise, forget it.”

Let's not forget that there was no money at all for at least 6 months, in contravention of State Law, which says a client's money must be distributed promptly. The Hinkley clients tried to get answers by calling Masry’s and Girardi’s offices, but suddenly, they couldn’t get through to anyone, not even Brockovich. “None of the attorneys would take our calls,” said Carol Smith. Then the residents were further outraged because there was no accrued interest paid, when they finally got their cheques.

When some residents tried to complain about what they felt were unfair amounts, they were put off. “We didn’t even get to talk to Erin and she’s the one who got us mixed up in this thing,” said Smith. Some wanted to contest the awards, but were discouraged. “We were told if we appealed the settlement, we’d get less money,” said Ron Gonzales. “It was essentially a threat.” But Gonzales did appeal. He was given an award of $100,000, but appealed on the grounds that he deserved more. “Ten minutes later, one of the judges offered me $250,000.” The appeal cost him $21,000 in arbitration fees. I'll leave the last word to Lynn Tindell :- “I feel like I was treated like a country hick that didn’t understand plain English,” said Tindell. “We are the ones who made those guys zillionaires.” Some residents began to take their cases to at least four other attorneys for help.

None of this sits well with me. How does it strike you? The real winners in this case were - surprise, surprise - the lawyers; Girardi, Lack, Masry and Brockovich. Erin, the 'original rebel without a cause' was now firmly on the team. It was a winning formula. In the following years they went for PG&E in other towns similar to Hinkley. Brockovich and Masry mounted related cases against a variety of organisations and some of these findings were again controversial. I haven't got the time to go into it right now.

This does not make for pretty reading does it? It is almost certainly a lot less than you might have expected. I'm, of course, happy to hear your views, as I have no more of a vested interest in this, than I do in any other post. Till next month :- "may the cycles always bring you good fortune."