Poisoned Page 17

  As we were leaving the airport, Hira said, “Hey, Alan, why don’t you come up and have lunch with us sometime? We’re just north of Los Angeles. Maybe you could help us out on some cases.”

  “I’m retired,” I said. “I don’t practice law anymore.”

  “Yeah? That’s too bad,” he said. “We could really use a guy with your knowledge. Well, come have lunch anyway. I’d love to talk over a few cases with you, maybe get your input on them.”

  That sounded easy enough. I agreed, and we parted ways.

  I drove up to the offices of Masry and Vititoe in West Lake Village a few weeks later. Ed was a generous man, active in his local community and government. He was also on kidney dialysis during the time I collaborated with him. He often came to work in sweatpants after going through a couple of hours of dialysis—a solemn reminder that, not long ago, I’d been trapped in my bubble, wearing only my University of Miami sweatpants and unable to leave my house. I admired his determination to live as normal and full a life as possible given his illness.

  I admired Jim, too, and we began a friendship based on common interests. We met occasionally for lunch or dinner. Eventually, he began giving me cases to review. “We can’t handle all this stuff,” Jim admitted. “Ed’s sick, and we’re just a two-man law firm. We could use your help, Alan.”

  I agreed to look at some of the cases, but only as a favor, and in an unofficial capacity.

  • • •

  Up to that point, I had never handled a toxic tort case. However, as I began reading through files Jim gave me, I realized that I had the medical knowledge and legal skills to assist the law firm.

  In the beginning, I limited my involvement to making phone calls. I called victims on behalf of the law firm of Masry and Vititoe to determine if their cases could potentially yield some kind of positive, tangible result in court. Most did not, for a million different reasons.

  A toxic tort case isn’t worth putting hours into if the defendant—the company, individual, or organization being sued—doesn’t have insurance or deep pockets. Moreover, unless we could clearly prove the defendant was negligent, we couldn’t help these victims. And even if we could prove negligence, it was still necessary to link the victim’s illness to a particular toxic exposure.

  The cause-and-effect of a toxic tort case is often an elusive thing to prove. An environmental injury is never as clear-cut as, say, an automobile accident where you walk across the street, get hit, and boom! You’re down! In that situation, witnesses can clearly describe what happened, there might be evidence like blood on the curb, and somebody probably caught a cell phone video of the event.

  In the case of environmental injury, on the other hand, the cause-and-effect is tricky to prove. We’re exposed to many different chemicals in our daily lives. In addition, victims of such exposures often don’t experience symptoms until many years later, so it’s difficult to link the symptoms back to a specific exposure as the cause. The defense can successfully argue that an intervening event may have caused the injury, creating room for doubt. In addition, since each person has an individual biochemical fingerprint, the defense can argue that the illness or injury—the “effect”—might be due to genetic factors, independent of any environmental exposure.

  To complicate matters, in 1991, this was an emerging area of law. The medical establishment was only beginning to agree that environmental chemicals were potentially harmful to human health. Proving personal injury lawsuits depends upon solid science. Each claimant must demonstrate, through expert testimony, that a toxic exposure caused their illness. If there aren’t any doctors or scientists willing to testify that certain chemicals are definitely linked to specific illnesses or injuries, then you can’t build a legal case. Hard science must support each expert witness’s testimony.

  I became increasingly involved with Masry and Vititoe over the next few years, moving from simple phone calls into analyzing and developing various toxic tort cases. I began very slowly, dipping my foot in these legal waters by helping out here and there, offering my advice about which cases might be worth pursuing.

  In addition, I spoke regularly with victims, either those referred to me by Masry and Vititoe or people who found me on their own. They came to me out of desperation, usually, because they were in the same place I’d once been, feeling as if they were alone and howling in the wilderness, unable to find doctors who could help them—or even people who believed them.

  As time passed, it became increasingly apparent to me that an awful lot of these people weren’t going to get help unless I rolled up my sleeves and helped them myself, so that’s what I did.

  Whenever Masry referred a case to me that I thought had promise, I’d start by calling these clients on the phone. I’d listen to them describe how they’d been injured by some kind of chemical exposure and do my best to refer them to the right medical specialists. If legal action was called for that might bring them some kind of monetary compensation, I’d pursue it, but not until I first addressed their medical issues.

  This kind of work felt meaningful. I was grateful to be physically able to help. At the same time, it was difficult for me to witness how the lives of these families were ripped apart through no fault of their own.

  Toxic tort law is a highly specialized legal area that is still emerging. About 99 percent of the top US trial lawyers have absolutely no experience in the field. I was in a unique position to advocate as a former victim, survivor, medical proponent, and legal avenger all wrapped into one person.

  I participated in most of these cases pro bono because I was fortunate to be financially independent and have the opportunity to help those who lacked the money to pay for legal assistance. Knowing that I was helping victims who had nowhere else to turn infused my life with new purpose and meaning. That was gratification enough.

  I went about my work systematically. For instance, if a nurse claimed she’d contracted a respiratory illness after being exposed to harmful chemicals while working in a hospital, I’d ask for her medical records proving her claim. If her medical records confirmed a respiratory ailment, I would then find out if anyone had tested the air in the hospital. If not, I’d help locate a certified industrial hygienist to test the air for the presence of toxic chemicals known to cause respiratory disease.

  I had no trouble finding environmental health experts. I’d spoken with plenty of environmentally ill patients about how they got sick and which professionals had helped them. I also had a long list of scientists who served on the Scientific Advisory Board of my Environmental Health Foundation. Previously, these scientists had advised us on what research project proposals to fund, offering us insights into what studies were legitimate and relevant to global environmental health. They also recommended public awareness programs designed to help prevent disease, by providing people with the knowledge they need to modify their lifestyles and minimize their risk of environmental illness. My past relationships with the professionals on our board served as a springboard to secure top environmental scientists as expert witnesses in the courtroom.

  It wasn’t long before my fax machine was spitting out pages in the middle of the night. I’d wake up, and they’d be all over my floor: frantic pleas for help from victims all over America.

  • • •

  Over time, I had investigated many heartrending toxic tort cases. Eventually, I realized I had no choice but to take further action.

  I became an advocate.

  I am probably the least likely advocate for environmental health you’d expect to find: a conservatively dressed former prosecutor, not a liberal with long hair or hippie sandals—no turquoise rings, no pierced anything. Yet talking to victim after victim eventually got to me. I became their voice.

  For local cases, I sometimes met with victims in person. Looking into their eyes was like looking into a mirror because I could see the same fear I had felt when I couldn’t understand what was causing my symptoms or how to treat them. They were scared, str
uggling to understand what had happened to them, but they simply couldn’t put the pieces together. They were just beginning the long and difficult medical odyssey I’d been on since giving up my legal career in Florida.

  My sixth sense kicked into high gear as I began helping people fight against those who’d poisoned them. I’d practiced long enough that I could determine with one sniff if there was mold, new carpeting, new paint, or other chemicals present in an area.

  I was able to start relying on my hypersensitivity to alert and divert others. This was an admittedly unorthodox approach. To some, it appeared too good to be true, but I was able to save victims thousands of dollars and unnecessary delays caused by hiring experts who would conduct lab tests and arrive at the same conclusions I did—only I did it faster and free of charge.

  Unorthodox or not, my ability to sniff out or “feel” the presence of toxins was actually pretty straightforward and simple. Some victims would call me to say they thought their workplace or home was making them sick, but they weren’t sure why. I’d go on site to help them figure out the likely source of their illness. If there was black mold or another toxic chemical in their environment, I could sense it. My lungs would immediately seize up, or I’d feel an intense sinus pain. If it was really bad, my vision would blur and I’d feel a swelling sensation in my brain.

  Often, I could even determine the class of chemical hidden in a particular environment by my body’s response. Whether I was in the presence of formaldehyde, chlorine, mold, pesticides, or flame retardants, my body had instantaneous neurological and inflammatory responses to the poison. This was my secret weapon.

  One woman, for instance, was a single mother renting a Newport Beach condo. She and her baby were both sick, and she was certain it had something to do with their living quarters. She just couldn’t prove it. I arrived and sat with her at the dining room table. We chatted for a few minutes while I sniffed the air.

  “I know what’s wrong,” I said.

  “What do you mean?” She gave me a startled look.

  “There’s mold in here. Do you mind if I look around your place?”

  She shook her head. “No. Please do.”

  The woman trailed after me from room to room as I followed the scent of the mold, until I located its source behind a wall.

  I tapped the wall and said, “There’s mold behind here.”

  The woman stared at me like I was crazy. “But how do you know that? I can’t smell anything. And we can’t see the mold, right?” She looked around as if the mold might suddenly pop out of the walls.

  “No,” I said. “Trust me, though, it’s there behind the wall. That’s your problem.”

  “What do I do about it?” she asked.

  I felt sorry for her, because she was a single mother in her early thirties, a woman obviously without many options. I thought back to all of the cases I’d handled as a prosecutor, and how often the powerless people were handed the worst attorneys and sentences: power is often in the hands of those with money and position. This woman had neither.

  “Tell you what. I’ll bring in a certified industrial hygienist,” I said.

  “But I can’t afford that!” She looked panicked.

  “Don’t worry. I’ll pay for it.”

  I did, and sure enough, when I met the hygienist in the condo, he found mold behind that wall and under the sink, where I had also sensed it. I told him right where to look for the mold and take samples. That was a good thing because it costs less to take samples if you know right where to look for the toxin.

  The hygienist examined the mold under the microscope and said, “Yup. You were right, Alan. It’s black mold.”

  Black mold is toxic to humans. Sometimes it’s even lethal. The woman was watching us like we’d beamed down from another planet. She looked really scared now. “What do I do? Is that dangerous? Can I sue my landlord?”

  “You could,” I said, “but it would be a lot of aggravation and money, and the court costs would have to come out of your pocket. It probably wouldn’t be worth it for you financially. Look, both you and your kid can recover simply by moving out. Do yourself a favor and forget about the lawsuit. Just get the hell out of this place.”

  “But how will I get out of my lease?”

  “Let me take care of it.”

  There aren’t many lawyers willing to walk away from a lawsuit, but I knew how taxing a court case would be. Although the woman was experiencing symptoms, I also knew it would be tough to prove that the mold in the condo was actually causing her symptoms. Not all people react to mold. Her landlord could claim something else had caused the illness. I had no intention of taking advantage of her.

  However, I was certain that, having found evidence of the mold, I could scare the landlord with the prospect of a lawsuit, and that’s what I did: I sat down with him and said, “Look, she’s sick, her kid’s sick, and here are the test results showing you have black mold in that condo. Do everyone a favor and cut her loose. She’ll be on her way, and you won’t have a lawsuit on your hands.”

  Not surprisingly, he agreed. He also followed my advice to have the apartment cleared of mold—not to protect his next tenants, but rather to insulate himself from potential future lawsuits.

  I assisted victims in over a hundred cases for Masry and Vititoe. In addition, countless others began contacting me for personal and legal advice through the Environmental Health Foundation.

  Although I was finally able to live outside the bubble, my health was still fragile. Even as I took more active roles in some cases, I had to do the work from behind the scenes rather than travel, since I didn’t want my clients to suffer if my health took a turn for the worse. I brought in other lawyers to do the heavy lifting, always careful to choose only attorneys I trusted, lawyers who kept me intimately involved in the cases. I provided advice, guidance, and support both to my colleagues and especially to the victims.

  By becoming an environmental health advocate—a legal avenger fighting to give victims a voice and seeking justice—I came full circle. I was now back in the dynamic legal arena, this time fighting for a cause I believed in with my whole heart, mind, and soul.

  I was no longer prosecuting one crime at a time by putting bad guys in jail. Instead, I was going after the biggest, most powerful villains of all: chemical manufacturers, pharmaceutical corporations, and other entities that refuse to admit they are heedlessly spewing toxins into our environment and killing people.

  And I was determined to win.

  15 • CHEMICALS TAKE DOWN A FOOTBALL COACH

  DAN ALLEN WAS A BELOVED head football coach at Holy Cross College in Worcester, Massachusetts. His wife, Laura, contacted me through my Environmental Health Foundation. She reached out to me because her husband suffered from multiple chemical sensitivity and they were searching for treatments.

  “Dan’s been coaching from a wheelchair on the sidelines, but now they’ve fired him because he can’t do it anymore,” Laura said, obviously near tears as she told me her husband’s story.

  Dan was working in his office, located inside the gymnasium at Holy Cross College, in early 2001 when he saw men wearing white suits and gas masks working on the gym floor. The coach left his office, walked over to the gym, and asked what was going on. The workers told him they were resurfacing the floor.

  “Do I need to leave?” Dan asked.

  They assured him he would be fine in his office.

  Dan’s health problems began shortly afterward. He developed a headache first. Then a toe went mysteriously limp. Within eighteen months, he was confined to a wheelchair with a lifeless right arm and had to rely on his family to feed and bathe him. Hearing this made me wince in sympathy; my own days of confinement in a wheelchair and dependency on others hadn’t been that long ago.

  Laura, a registered nurse, was trying to find answers for him. They’d been to many medical specialists. She said, “I’m convinced he developed MCS when they resurfaced the floor of the gym, but his doctors
won’t make the connection to the chemicals. I was hoping you could recommend a doctor who might have some experience with this kind of injury.”

  “If he has MCS, the best place you can go is to Dallas,” I told her.

  “What about stem cell treatments in the Bahamas?” she asked desperately.

  “No, don’t go there. That’s quackery.”

  “Okay. Thanks,” she said.

  The next time she called, Laura told me they had gone to the Bahamas and spent a hundred grand on stem cell treatments to no avail. I suggested that she take Dan to Dallas to see Dr. Seastrunk because he’d helped me.

  “No,” she said. “That’s too far.”

  As we continued to talk and I heard more about how the company had resurfaced the gym floor knowing Dan was in his office, I realized Dan had a solid legal case against the company. Despite the fact that Laura had already consulted several lawyers who refused to represent him because they said he had no case, I was convinced otherwise. “Let me send you to a doctor I know,” I said. “She can evaluate your husband.”

  I wanted Dan to visit her primarily to help him medically. If her evaluation also helped his legal claim, that would be a bonus. However, when I said the doctor was at Boston University, near where Dan and Laura were living, Laura balked, saying Dan had already been there.

  “You don’t understand,” I argued. “It’s not the university that matters. It’s the particular scientist. You need to see Dr. Marcia Ratner at Boston University. She’s an internationally recognized neurotoxicologist.”

  I knew Dr. Ratner from the Scientific Advisory Board of the Environmental Health Foundation; I had brought her on board when we were planning the summit. When she examined Dan, Dr. Ratner came up with a shocking diagnosis: Dan had amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease. We both wondered if the coach’s chemical exposure triggered his early onset of ALS. Was that possible?

  I called Laura after Dr. Ratner had seen Dan. “Look, this is serious,” I said, after saying how sorry I was about her husband’s diagnosis. “Holy Cross College isn’t paying your husband anything, right?”