Cancer has forever altered the life of 56-year-old Michael Kiser, a Wilmington resident, husband and father of two daughters.
In 2011, Kiser was diagnosed with colon cancer. He was hospitalized again in 2015, when doctors found a tumor Kiser described as the size of a baby’s head; it was stomach cancer, he said. Kiser has since become too sick to work and has had to pay tens of thousands of dollars out of pocket for medical expenses and on lengthy road trips to the doctor.
So when it hit headlines last summer that GenX, an unregulated chemical discharged as part of The Chemours Co. operations in Fayetteville, was found in the treated drinking water of Cape Fear-area residents, Kiser began to do some research.
“I almost died,” Kiser said. “I definitely think that these chemicals – that’s what caused my cancer. And that’s why I contacted [lawyers] and wanted to find out more about the situation.”
Kiser is one of four plaintiffs in consolidated toxic tort cases, proposed as a class action, filed in U.S. District Court in the Eastern District of North Carolina on Jan. 31. That filing combined several federal court cases since October that name Chemours, a 2015 spinoff of DuPont, as the defendant.
A class action is a lawsuit that allows one or more plaintiffs with similar claims and injuries to sue a defendant and prosecute on behalf of a larger group or class.
Ted Leopold of Cohen Milstein was appointed in January by a federal judge as co-counsel in the proposed class action case. Leopold is also co-lead counsel in a class action brought by Flint, Michigan, residents against Gov. Rick Snyder, 17 local government officials, the city of Flint and a group of engineering companies over the contamination of the Flint water supply.
In the Wilmington case, Leopold is working along with Stephen Morrissey of Susman Godfrey LLP in Seattle, Washington, who was also appointed co-lead in the case.
Kiser and other named plaintiffs have a very important role to play as representatives of the class, Leopold said.
“Their involvement will be essential … because they are acting and sitting in the shoes of the entire class and to make sure they act in the best interest of that class,” Leopold said.
The attorneys litigate and represent the class on behalf of the individuals and work on a contingency basis, he said, adding that there are no out-of-pocket costs to the class representatives or any members of the class.
“They are certainly not cheap cases to litigate,” Leopold said of class actions. “They are time intensive and cost-intensive.”
Attorneys can spend years on environmental cases like these before they see their day in trial, if at all. Cohen Milstein filed a response to the defendant’s motion to dismiss on April 13, laying out the reasons the case should be allowed to proceed. A ruling on just that motion can take weeks or months, he said.
But the pending ruling is not stopping attorneys from working on the case. Discovery could begin to take shape in the meantime, alongside other lawsuits against Chemours.
Coordination among law firms pursuing cases against Chemours is happening in the discovery process, Leopold said.
Addressing the class action case, Leopold said such cases are highly contested and litigated.
“Chemours and Dupont have excellent attorneys … they have unlimited funds to defend these cases,” he said. “They litigate them and defend them very vigorously.”
Leopold added that while it’s the company’s right to defend cases, it’s also the job of plaintiffs’ attorneys to seek “the truth.”
“That’s one of the beauties of our judicial system … everybody, once we get into court, is on a level playing field,” he said.
Last year, DuPont and Chemours agreed to pay $671 million to settle a class action case involving PFOA, or C8, which was replaced by GenX in 2009, and personal injury claims related to drinking water in Ohio.
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