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"The plant exhaled pesticide dust like a vacuum cleaner with a full bag. The fan sucked poisonous dust and fumes from the factory, sending them into the neighborhood." Slow Death Slower Justice - The Observer

CASE SET FOR TRIAL: The 12-year Pending Case Finally Gets a Trial Date

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The Helena Chemical Plant case, involving over 2,000 plaintiffs is finally set for trial after 12 years. Click Here to view the article in The Monitor.

Mission residents to face Hayes-Sammons plant in court

October 19, 2009 11:30 AM

Jeremy Roebuck
The Monitor
MISSION — Over time, Ramiro Barrera and the others who grew up in the shadow of the Hayes-Sammons Chemical Co. have had to master the art of persuasion.

They convinced a federal judge in 1983 to order the cleanup of the pesticide mixing plant that once stood at the center of their downtown Mission neighborhood, nearly a quarter-century after it began spewing remnants of undiluted, industrial-grade toxins over their community.

In 2006, they coaxed a U.S. congressman into re-examining the poison in their backyards, only to discover the contamination was far worse than originally understood and still causing cases of heart, lung and liver disease as well as cancer, chronic migraines and miscarriages.

And they induced the U.S. Environmental Protection Agency to devote $6 million to tear down the old plant and remove acres of toxic soil from the area — a process that was only just completed.

Barrera and his cohorts have twisted arms, wheedled and cajoled for every minute of attention they have received from judges, politicians and government agencies. But they will soon meet the 12 most important people they have yet to convince.

Jury selection is set to begin this week in the first civil trial seeking to lay blame for the physical maladies that have plagued them for the past 60 years.

Specifically, the trial scheduled this week concerns the case of Guadalupe Garza, a 66-year-old woman whose doctors believe she developed non-Hodgkin’s lymphoma — a type of cancer — from prolonged exposure to the pesticides housed near her home.

But for Barrera, the case means more than just one woman’s fate. Its verdict, he said, will be a bellwether for all of the nearly 1,600 plaintiffs who have filed similar claims.

“This case isn’t a coming to the end for us,” he said. “It’s coming to a head. We just thank God we’re finally getting our day in court.”

CHEMICAL BOON

Barrera, now a 59-year-old pharmacist, remembers a time when the topic of the chemical plant wasn’t one that required a lot of convincing.

In 1950, residents welcomed Hayes-Sammons — the homegrown pesticide mixing company hoping to set up shop in their largely poor, Hispanic neighborhood — as a boon to the local economy.

The plant offered dozens of good-paying jobs, allowing residents to remain closer to home than the fieldwork that had previously employed many of the area’s men.

Although they handled powerful organochlorine pesticides with names like DDT, BHC, dieldrin, toxaphene, aldrin and chlordane on a daily basis, few thought much at the time of the dangers they might pose.

The respirators, aprons, goggles and gloves the company gave each worker seemed like an overprotective nuisance in the region’s stifling summer heat — especially when there was no requirement that they wear them.

Many thought of the industrial fan that sucked dust from inside the plant, blew it out into the awaiting Gulf breezes and distributed a grainy white film across the surrounding homes as just a necessary, if annoying, side effect of economic advancement, Barrera said.

“When it rained, all the water would come down our street,” he said. “We used to call it rainbow water. We played in it. We didn’t know any better.”

The chemical plant closed its doors in 1972. But by then, the sicknesses had set in.

Nearly all of the chemicals handled at the factory have since been banned in the U.S. as potential carcinogens that can become lethal as they accumulate in human tissue. Their effects in South Mission have played out in myriad ways, residents say.

Barrera has struggled with liver problems since his youth. His mother miscarried several children.

Simon Sandoval Sr., 82, blames his time as a pesticide truck driver for his 1965 appendix removal and the defibrillator implant he required two years ago.

Eliza Burbois, 76, suffered organ failure so severe she had to have a kidney and her spleen removed. One of her four children was born unable to hear or speak.

Her brother, who worked at the plant for many years, died of kidney, lung, and heart disease and cirrhosis of the liver, but not before watching three relatives who toiled alongside him die in their 40s.

“We used to think that our family was linked to cancer,” Burbois’ niece, Ginger Silva said. “We didn’t know it had anything to do with the chemicals.”

But a series of environmental studies over the years convinced them otherwise.

One such examination — conducted by EPA in 1980 — found the highest DDT samples at the site exceeded federal standards by more than “hundreds of thousands of times,” according to court documents. Samples of lindane, dieldrin, toxaphene and chlordane were also at near-lethal levels.

The agency noted that concentrations of pesticides found at the site were “so high that spending one day (there) would be more harmful than a year of agricultural work in the fields which had in the past been regularly sprayed with these chemicals.”

In 1998, the first lawsuit was filed.

UPHILL BATTLE

The case has grown to massive proportions in the intervening 11 years.

At one point, about 2,400 people from the area filed claims that were later merged into one mass toxic tort lawsuit. Their numbers have since been whittled down to about 1,600 by legal rulings, the passage of time and in some cases death.

The plaintiffs lodged their complaints against some 35 defendants including landowners, transporters, suppliers and a who’s who of chemical firms including giants Dow Chemical Co., Chevron Chemical Co. and E.I. du Pont de Menours Co.

They allege that negligence and failure to warn the public about potential health risks are responsible for at least 225 instances of cancer and 44 cases of liver disease among other illnesses.

Even moving the massive case file — stuffed with medical records, legal discovery and motions upon conflicting motions — requires the Hidalgo County District Clerk’s Office to charter a caravan of filing carts.

But the Hayes-Sammons plaintiffs see the case of Guadalupe Garza — the woman who is set to take her story before a jury this week — as perhaps the purest distillation of all that they allege. It’s also the easiest to prove, her lawyers say.

Unlike many of her fellow plaintiffs who have established only a vague connection between their maladies and their chemical exposure, doctors have identified four pesticides — DDT, BHC, toxaphene and dieldrin — as the agents responsible for Garza’s non-Hodgkin’s lymphoma. They could find no other source of exposure than the chemical plant that stood in the background of her daily life for years, according to court records.

Still, her attorneys face an uphill battle to win the case.

Under state law, it is not enough just to say the “toxic soup” of chemicals made Garza sick. Her lawyers must identify exactly which chemicals she was exposed to, how much exposure she suffered and when the exposures occurred. They must show the jury that the chemicals came to Hayes-Sammons from the specific companies she has named in her lawsuit.

Attorneys for both sides remain under a gag order the judge placed on the case last year, but the chemical companies have previously denied any responsibility for contributing to Garza’s health problems.

They argue that Hayes-Sammons and its employees knew the risks associated with handling toxic chemicals and that the plant management — not the chemical makers — is ultimately responsible for guarding the health and wellbeing of workers and those who lived around the facility.

The Texas Supreme Court seemed inclined to agree.

In what could be a window to how an appeal of the Garza verdict might play out, the state’s high court wrote in 2007 that the plaintiffs had at that point not met their burden to take the case to trial.

“It has long been the rule in Texas that plaintiffs bear the burden of pleading and proving how they were injured and by whom,” Justice Scott Brister wrote in the court’s opinion. “They cannot simply file suit against everyone in the vicinity and demand that the defendants prove otherwise.”

That means the days of convincing are not over yet for the Hayes-Sammons plaintiffs. But Roque Duran, a 54-year-old freelance consultant, feels confident that he and his fellow litigants can meet their burden precisely because of the decades they have spent convincing, persuading and cajoling those in power to take action on their behalf.

“It’s made us stronger,” he said. “It’s just given our attorneys that much more time to get more research and more detection done — to see what it did to this community and what it will do for generations to come.”

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Jeremy Roebuck covers courts and general assignments for The Monitor. He can be reached at (956) 683-4437.

 

 

 

 

 

 

 

 


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