It took a few months for the investigative journalists to overtake the Hollywood dream spinners, but by now it's been pretty well established: What got left out of the blockbuster movie Erin Brockovich (now available at a video store near you) was in many ways juicier than what got put in.
You're probably familiar with the basic Erin story, as portrayed by the winsome Julia Roberts in a critically acclaimed performance. A spunky, foul-mouthed single mother down on her luck, Erin gets herself hired with no experience for a routine job at a Los Angeles personal injury law firm. Soon she stumbles into evidence that the townspeople of little Hinkley, California, are being poisoned by pollution in the water table originating with giant utility Pacific Gas & Electric, which runs a plant there. Brockovich begins doggedly accumulating evidence, convinces the lawyers in her firm they've got a case, and recruits townspeople to sue. Eventually, without admitting guilt, the utility coughs up an impressive $333 million settlement, a record for this kind of case.
Not only did this result provide much-needed financial balm for both the townspeople and our heroine, but all the lawsuit organizing, as the writers at Oprah.com explain, assisted Brockovich in the task of "finding her true self." Although she'd started out in life as a beauty pageant winner, winning the trust of the Hinkley townspeople "enabled Erin to grow and realize that inner beauty is most important."
In fact, the challenge of working on the suit "allowed Erin to productively channel all of her pent-up anger and frustration and realize her purpose in life: helping others." Litigation as a road to inner peace and helping others: It's certainly an unusual story.
After she spent years helping others, what more appropriate reward for Brockovich than to become the most famous environmental litigator in history, as by now she surely is? Though technically not a lawyer (her title at the California law firm of Masry & Vititoe is "research director"), she's won more prizes and commendations than just about any regular lawyer you could name, including the Association of Trial Lawyers of America's Champion of Justice Award, presented last July at its annual convention in Chicago; similar prizes from the California and Santa Clara County trial lawyer groups; commendations from the County of Los Angeles and the California Assembly; and the Court TV "Scales of Justice" Award.
Clearly not unpleased at this nearly universal adulation, Brockovich has embarked on a career of touring the country to organize more toxic tort suits by communities in Pennsylvania, Idaho, and elsewhere.
Just as all this personal growth and feistiness and indomitability were getting to be more than you could stand, along came critics who began sniping at the movie's account of the Hinkley case. The first wave included such writers as Hudson Institute investigative science journalist Michael Fumento (a contributor to this magazine), ABC 20/20 correspondent John Stossel, and New York Times science writer Gina Kolata. The headline above Kolata's Times account sums up the main line of critique: "A Hit Movie Is Rated 'F' in Science."
Few cases in this country of "disease clusters" linked to chemicals in groundwater have actually panned out upon investigation. Even the famous Woburn, Massachusetts, case dramatized in the book and movie A Civil Action (see "A Woburn FAQ," April 1999) left more questions than answers about whether a suspicious number of childhood leukemia cases had arisen from anything in the water supply.
Only rigorous science can answer such questions as: Are people who drank water from a suspect source sicker than comparable populations elsewhere? If so, do they suffer from a particular, distinctive set of recurring symptoms (such as mercury-induced "Minimata disease" in 1950s Japan), or do they instead complain of a wide assortment of common ailments? Was the chemical exposure heavy, or something measured in parts per million or billion, only slightly above a threshold drawn to err on the side of extreme caution? And if the latter, are claims of injury from minor exposure consistent with what's known to happen to workers or others who get exposed to much higher concentrations of the same substance?
In the Hinkley case the alleged culprit was a pollutant called chromium-6, or hexavalent chromium. To judge by Fumento's account, the problems with this theory were much the same as those commonly found in other toxic tort cases: The levels of contamination were orders of magnitude lower than those needed to induce health effects in experimental animals; the lawyers were seeking to blame the chromium for a wide assortment of ailments with no likely common origin; and science has not shown chromium-6 to be a particularly lethal substance when ingested in trace quantities in drinking water. (When inhaled, as in welding fumes, chromium-6 has been shown to cause cancer of the nose and lung, but very little can be inferred about the dangers of one route of exposure from the other.) Studies of persons known to have been exposed to waterborne chromium-6 in Glasgow, Scotland, and elsewhere fail to confirm the Hinkley claims.
Brockovich, to be sure, disputes most of this critique. She told journalist Kathleen Sharp (about whose Salon article we will have more to say in a moment) that she found "hundreds" of references in the scientific literature to a clear-cut pattern of toxicity from chromium-6.
But Sharon Wilbur, a toxicologist at the U.S. Department of Health and Human Services, told Sharp a very different story, namely 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." Moreover, health studies found that the utility plant's own workers, who were likely exposed to at least as much pollution as neighbors were, had a life expectancy exceeding the California average.
If it had such good defenses, why did PG&E cough up $333 million to settle the case? Unlike most mass personal injury cases, the Hinkley matter was settled in private arbitration, which means we know less about how it was fought, and which arguments were raised, than we would had it proceeded in conventional litigation. But in her impressive investigation in Salon, Sharp unearths a few reasons why the utility might have ended up with such an unfavorable resolution of the case.
One was that, if you credit allegations from the Brockovich side of the case and other sources, the first set of lawyers PG&E used may have engaged in misconduct, including privacy invasion by hired gumshoes, that would have caused a furor if proven.
Additionally, it later developed that the two L.A. lawyers who teamed with Brockovich's firm to handle the case, Thomas Girardi and Walter Lack, were on unusually friendly terms with some of the judges in the arbitration, who had joined the arbitration firm JAMS after retiring from the regular California bench. One judge had officiated at Girardi's second wedding, another had flown in Girardi's Gulfstream to attend the World Series, and so forth. Laurence Janssen, a partner in the L.A. office of the Washington law firm Steptoe & Johnson, told Sharp: "I became aware that I should absolutely stay away from JAMS or its retired judges when it came to any dealing with Tom Girardi …The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi."
Not long after the case was settled, generating $133 million in lawyers' fees, Girardi and Lack just happened to invite the three Hinkley case arbitrators to join a week-long Mediterranean cruise for 90 guests, including 11 public and private judges, on a chartered ship. "One judge," reports Sharp, "called it 'absolutely incredible.'" A luxury yacht floated on azure waters; tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed deck, according to retired Judge [William] Schoettler, who was a guest. As another bare-chested judge remarked at the time: 'This gives decadence a bad name.'"
Naturally, this was all done for strictly educational purposes, under the aegis of a group Girardi and Lack ran called the Foundation for the Enrichment of the Law. Girardi told the Los Angeles Times that the trip included "an extensive professional program," which is supposed to make it OK under ethical rules, but Sharp reports that "retired judge Schoettler can't recall anyone he knew actually attending a lecture." Eventually, the judges agreed to pay their expenses for the trip; the outcry over the cruise helped spur a California Supreme Court inquiry into the arbitration.
Not a frame of this remarkable epilogue to the case, of course, made it into the movie Erin Brockovich. And the movie was equally misleading, it seems, in depicting a grateful Hinkley populace winning big. In the real world many of the Hinkley clients feel they got the shaft from Brockovich's firm of Masry & Vititoe, and are now proceeding to sue them. Specifically:
? Of the $333 million settlement paid by PG&E, the lawyers kept a handsome 40 percent ($133 million) share, plus another $10 million to cover expenses. The clients say they were short on detail to back up the latter number. Worse, they say Masry, Brockovich, et al. held onto their money for six months after the settlement, a delay that appeared highly irregular to the experts Sharp checked with, while not paying interest or even returning their phone calls (the lawyers say the payments did include interest). Some with large awards also got steered toward certain financial advisers, among them Ed Masry's son Louis.
? When the payouts eventually came, many clients found the division of spoils mysterious, arbitrary, or worse. Divided among the 650 plaintiffs, the announced $196 million would provide about $300,000 per client. But an outside lawyer who interviewed 81 of the plaintiffs was told they received an average of $152,000, and Sharp reports that many long-term residents with presumably documented medical ailments got payments of $50,000 or $60,000. The allocation among clients was kept secret, which means they couldn't get an accounting of who received what–gotta protect the privacy of the other plaintiffs, right?
Moreover, writes Sharp, "there was no mention of the criteria, formula or method by which the money would be divided," other than a statement that the amounts would be based on clients' medical records. Yet some residents say their medical records were never solicited. One elderly, ailing resident "blew up at one of the attorneys, who didn't like his attitude," according to a fellow townsman, and "got a real bad deal," allotted in the end only $25,000. "Fairly or not," writes Sharp, "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 [client Carol] Smith. 'Otherwise, forget it.'"
? Many clients (as well as members of the press) say they were unable to keep track of the case's progress as it moved through arbitration. "We had no idea what was going on and weren't allowed to watch," one plaintiff told Sharp. With help from the plaintiffs' lawyers, Universal Studios, which made the movie, obtained a copy of the trial transcript–more than many of the actual plaintiffs in the case have yet managed to do.
When Sharp attempted to interview the lawyers on the Brockovich team, the resulting conversations were "short and explosive and terminated abruptly by the lawyers." And when an outside lawyer took an interest in the disgruntled clients' case, Masry and fellow lawyers at once seized the offensive, suing him for allegedly slandering them and interfering with their business relationship with the clients; this slander suit was filed, then dropped two weeks later, then reinstated, then dropped again.
So if you want to know how to win some of the most coveted prizes and accolades handed out by the American legal establishment, ask Erin Brockovich. She knows all about it.