Errin’ Brockovich

By Michael Fumento

American Outlook, Summer 2000
Copyright 2000 the Hudson Institute

  Print this  Print this    Make text larger    Make text smaller

Most people leaving the theater after watching the hit movie Erin Brockovich feel happy and entertained. It’s a fun movie, delightful to watch, and "based on a true story" in which the little guys sling stones right into the middle of the bad guys’ foreheads, bringing them tumbling down.

Unfortunately, Erin Brockovich celebrates a real-life trend that presents a greater danger to American society than the movie’s villains could even think of: the use of the civil-law system to bypass the legislative process and replace the rule of law with rule by lawyers. Tobacco and guns were the first industries sentenced to death-by-lawsuit, but if the trend continues, soon no industry will be safe.

The Hollywood version, of course, ignores these problems and concentrates on "heroic" legal drama. Brockovich, a legal assistant with the Los Angeles-area firm of Masry & Vittitoe, drives out to the tiny southern California desert town of Hinkley, 135 miles outside of L.A., to give free help to a woman trying to sell her house. There she discovers a nightmare. Everybody and everything from chickens to frogs to people seem to be getting sick or keeling over dead with a huge range of diseases and symptoms.

Hollywood’s Erin. The real-life Erin neglected her children in the successful pursuit of millions of dollars.

Outraged, Brockovich and her boss, Ed Masry, give the townsfolk the courage to "sue the bastards" that hurt them. The culprit is Pacific Gas & Electric (PG&E), a public utility that exposed the residents to a chemical called chromium-6 from its nearby natural-gas pumping station. In the film, and in real life, the company surrendered $333 million in what’s claimed to be the largest settlement ever paid in a direct-action lawsuit in U.S. history.

The real story, however, ain’t no fairy tale.

Lawyerly Logic

Ed Masry was a religious cult lawyer and defender of a firm that pled guilty to polluting a lake that provided drinking water to thousands of people. He was already well-known in California, having been convicted in 1981 of stealing from the cult in order to bribe the lieutenant governor. He was acquitted of the bribery charge but convicted of the theft. An appeals court then overturned the theft charge on a technicality and the state did not retry him. Thus, he got off but was never acquitted. When he first drove out to Hinkley, California, in 1992, it was to negotiate the purchase of a home in the area, which PG&E was trying to buy up near one of its facilities. PG&E was clearly worried about something long before Masry came along.

The movie Masry was gruff but kind. The real-life Masry is probably still gruff but that’s where the comparison ends.

In the 1950s, the company had begun dumping a chemical called chromium-6 into unlined waste ponds nearby, as did other companies at the time. In 1966 it lined the ponds with clay, to prevent the chemicals from leaching. It was too late, however, and in 1987 the company discovered that it had contaminated the town’s water supply. So it tried to buy up the land, and also sent Hinkley residents for free checkups to a doctor it had employed. It offered free drinking and even swimming pool water to residents who chose to remain.

Nonetheless, Masry observed that many of the town’s people had been or currently were sick. Some had died. Just a few of the illnesses mentioned in the movie (and many others were listed in the court pleadings) are breast cancer, chronic nosebleeds, Hodgkin’s disease (lymphoma), lung cancer, brain-stem cancer, stress, chronic fatigue, miscarriages, chronic rashes, gastrointestinal cancer, Crohn’s disease, spinal deterioration, kidney tumors, ovarian tumors, and "intestines eaten away," which sounds awful but doesn’t describe a real disease.

You don’t need to be a doctor, of course, to know that people everywhere get sick and that everyone eventually dies from something. The first question a trained medical investigator who suspected a common source of illness would ask would be whether there was an extraordinarily high rate of illness or death, taking into account the age of the population and other relevant factors. No one ever showed this to be true of Hinkley. The second question should be, "Is there a commonality of symptoms, or do they cover a broad range, as one would expect in any given geographic area?" Both the pleadings in the actual case and the depictions in the movie make it obvious that in Hinkley there was not.

Erin & Ed (played by Albert Finney and Julia Roberts): The dynamic duo, ever ready to fight for the Almighty Dollar.

Masry, however, is no doctor; he’s a personal injury lawyer who has switched roles from defending toxic waste dumpers to suing them. There were sick people in Hinkley, obviously PG&E was worried about something, and PG&E was worth nearly $30 billion. All that remained was to find something on which to blame a wide variety of illnesses and tie it to PG&E. That something was chromium-6.

Metallic Mendacity

At first glance, chromium-6 seems an ideal villain. It’s rated as a carcinogen by both the Environmental Protection Agency (EPA) and the International Agency for Research on Cancer (IARC). Problem is, the ratings were for extremely heavy occupational exposure, as when manufacturing it or using it in welding; the exposure in these cases was through inhalation. That explains why the two cancers the agencies connect to chromium-6 are those of the lung and the nasal septum, parts of the body with which air makes direct contact during inhalation.

But the Hinkley residents that Masry began rounding up (a job he later turned over to Brockovich) hadn’t suffered occupational exposure, nor had they inhaled the chemical. They had ingested it in their drinking water. And that changes everything.

Back when the EPA first determined that chromium-6 was carcinogenic via one route, it set off a rash of studies to discern whether it might be carcinogenic through other means. The EPA website evaluating chromium-6 toxicity (www.epa.gov/iris/subst/0144.htm) is voluminous and states flatly, "No data were located in the available literature that suggested that Cr(VI) is carcinogenic by the oral route of exposure."

The movie didn’t tell you Brockovich dumped her biker-boyfriend-babysitter. Embittered, he now stands accused of trying to extort money from her.

Thus, whereas the EPA assigns inhaled chromium-6 to Class A, designating it a known human carcinogen, as ingested it’s classified as a "D," meaning that there is no evidence of carcinogenicity. More recent studies have confirmed this conclusion. For example, a January 2000 report from Glasgow, Scotland, found "no increased risk of congenital abnormalities, lung cancer, or a range of other diseases." Three earlier studies of persons with measurable chromium-6 in their bodies from a waste dump near Glasgow came to the same conclusion.

A panel evaluating residents exposed near a New Jersey landfill estimated that "the plausible incremental cancer risk to individuals at residential sites would be substantially less than 1 in 1,000,000," meaning the seven hundred to nine hundred residents of Hinkley should have far less than one chromium-induced tumor among them. Finally, a study by William Blot and others, published in the Journal of Occupational and Environmental Medicine in February 2000, evaluated workers at three PG&E plants over a quarter of a century. One was the Hinkley plant, and another is near Kettleman, California, where Masry and Brockovich have filed another suit. The researchers found that cancer rates were no higher than in the general California population and death rates significantly lower than expected.

I exposed these little discrepancies in a March 28 Wall Street Journal op-ed ("’Erin Brockovich’, Exposed"), and, naturally, my published investigation enraged our heroine, who sent a reply to the Journal on April 6 ("’Erin Brockovich’, Affirmed") cosigned by her and the person who actually wrote it, Gary Praglin, a lawyer at another firm. In stark contrast to my piece, they cited no studies, quoted no texts, and named no experts. They alleged that the EPA supported their position, even though anyone with Internet access could readily see otherwise, as noted earlier. They said that IARC supported their position, even though the IARC page on chromium-6 (http://193.51.164.11/cgi/iHound/Chem/iH_Chem_ Frames.html) refers only to inhalation, not ingestion. And even for inhalation cases, it only discusses lung and sinonasal cancers, which hardly explains the breast, prostate, and other tumors the lawsuit and subsequent film blamed on chromium-6.

ABC’s John Stossel ran a ”Give Me a Break!” segment based on Michael Fumento’s research into the real Erin Brockovich.

Brockovich and Praglin asserted that I was "way off base" in writing that "the amount of Chromium 6 in Hinkley’s water never exceeded 0.58 parts per million." Instead, they claimed, "PG&E itself measured concentrations as high as 20 parts per million some 40 times higher than Mr. Fumento’s supposed maximum."

But according to the California Regional Quality Control Board, the highest measurements in Hinkley’s water were indeed 0.58, and even in the film Julia Roberts uses the 0.58 figure. Brockovich has claimed that "every word" in the film is true which makes her newest claim wildly false. Brockovich and Praglin continued, "How does Mr. Fumento support his position? By citing William Blot. Mr. Blot is a paid ’expert’ for PG&E, who has earned as much as $400 an hour testifying on behalf of the utility."

Actually, I used only one quote and one study from Mr. Blot, hardly making him a linchpin. But in any case, although both sides in the case called many expert witnesses and all were compensated, it just so happens that Blot was not among them.

Brockovich and Praglin claimed that I mentioned "some rodent and dog studies that seem to exonerate chromium-6 as a health hazard, but [didn’t] note that these are vastly outnumbered in scientific literature by animal studies that positively establish the compound’s toxicity." Wrong again. The EPA’s literature review at the aforementioned website includes an overview of all the animal data available, concluding with a reference to "the lack of toxic effect at the highest dose tested."

Yet the L.A. lawyers did pose an interesting question: "If the case against chromium-6 is as weak as Mr. Fumento claims it to be," why did PG&E settle for $333 million?

Big Guns and Good Buddies

The U.S.S. Thomas Girardi, Esq.

Part of the explanation lies in the status of a public utility. In its operations around the country, PG&E generally operates as a licensed monopoly with guaranteed profits. Losses ultimately just get passed on to ratepayers. Another important factor is that the suit was not a matter of little guys versus a big brute, as the movie portrayed it. Actually, Masry brought in two Iowa-class legal battleships: the Los Angeles law firms of Girardi, Keefe & Angstrom and Lipscomb & Lack. Identified by the Los Angeles Times as one of the nation’s "most successful trial attorneys," Thomas Girardi is a past president of the American Board of Trial Advocates and has won more than one hundred verdicts or settlements in excess of $1 million during the past three decades. Much of that work concerned precisely the issue at hand: exposure to allegedly toxic waste.

There’s even more to it than that, however, as Kathleen Sharp detailed in a stunning investigative piece for the April 14, 2000, issue of Salon.com. PG&E, notes Sharp, "wary of facing an unsympathetic jury and an attorney [Girardi] with a reputation as a skilled courtroom litigator," agreed to private arbitration rather than a court trial. In retrospect, the firm probably should have gambled with a jury rather than with the arbitration company, JAMS/Endispute, which hires retired California judges to handle arbitrations. Girardi had ties to at least three of the judges that heard the case. One had officiated at his second wedding, in 1993.

"I became aware that I should absolutely stay away from JAMS or its retired judges when it came to any dealings with Tom Girardi," a Los Angeles attorney told Sharp. "The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi."

Meanwhile, the media were roasting PG&E like a turkey on a spit. ABC’s PrimeTime Live aired a segment that completely ignored the scientific and medical evidence in favor of heart-rending allegations from unidentified victims, such as the following: "Whole families are dying of cancer." (They weren’t.) Girardi was quoted repeatedly.

ABC also baldly lied: "According to the U.S. Public Health Service, at certain levels chromium-6 can cause diseases of virtually every organ in the body." Facing a biased arbitration panel and a public relations catastrophe, PG&E finally threw in the towel.

After the arbitration, Girardi & Co. used some of their $140 million share to reward the judges.

A year after the case was settled, Girardi and an attorney from the other large firm that sued PG&E, Walter Lack, hired a cruise ship for $350,000 and set sail for the Mediterranean with ninety people, including ten public and private judges. The cruise was so posh it gave "decadence a bad name," said one of the guests. Three of the judges involved in the Hinkley arbitration were aboard.

When local papers got wind of this, California’s Commission on Judicial Performance launched an investigation, but both the proceedings and the conclusion were kept private. The three PG&E case arbitrators ended up paying their way for the excursion, as did most of the other judges. No action was taken against Girardi and Lack.

Plaintiffs’ Purgatory

While the lawyers and judges were basking in the Mediterranean sun, the Hinkley residents were burning. "The movie is mostly lies," plaintiff Carol Smith told Kathleen Sharp. "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."

Erin Brockovich says she’s no saint. That may be one of the few truthful statements she’s uttered.

The plaintiffs complain that their lawyers held onto the money for six months after PG&E cut the check. When Sharp asked Masry to explain the delay, he said, "Why are you being stupid? It was a complicated $333 million settlement. Are you an idiot?" Though some of the plaintiffs were desperately in debt, none of the attorneys, nor Brockovich, would return their calls.

After finally disbursing the money, Girardi’s office sent out a statement that, according to Sharp, seemed to indicate that the accrued interest went to the plaintiffs. But several of them claimed that what they received in January was exactly what had been announced the previous August. In addition to taking 40 percent of the settlement, which the plaintiffs had agreed to, the lawyers grabbed another $10 million for expenses. At least one plaintiff, according to Sharp, wrote to Girardi to get an accounting but never heard back.

The disbursements seemed utterly arbitrary. One man who had had a foot of colon removed received $100,000, whereas a woman who also had lost part of her colon collected approximately $2 million. One plaintiff with unidentified "skin problems" received $100,000, but another with a similar malady received nothing. Plaintiffs were told that their awards would be based on their medical records, but some say that their own doctors told them that their records had never been consulted. One plaintiff offered an explanation for the disbursement pattern: "If you were buddies with Ed and Erin, you got a lot of money. Otherwise, forget it."

In the movie, Hinkley residents end up elated. In real life, many are bitter and angry and suing Brockovich and Masry.

A Time magazine reporter sent to Hinkley heard similar complaints. "Give me a break!" moaned one Hinkley resident after seeing the film. "They depicted the lawyers as so concerned about the residents," she said. "But does [Brockovich] really care? I don’t know."

Ultimately, several plaintiffs hired new lawyers to sue their original ones, only to find their new attorneys instantly slapped with countersuits by the big guns from L.A. One of the newly retained attorneys said of the film, "I read the script; the only true part was Erin Brockovich’s name."

Hinkley residents have no sympathy for PG&E, of course, Brockovich and Masry having thoroughly terrified them into believing that every ailment they’ve ever had or will have is from chromium-6 ingestion. But to many, the bad guys are now the Brockovich Bunch. "I feel like I was treated like a country hick," one told Sharp. "We are the ones who made those guys zillionaires."

Indeed, and Hollywood heroes.

Every good story has a moral, of course, and this one is no different. Masry, Brockovich, and their powerful fellow attorneys were not trying to destroy PG&E but just attempting to clip off a chunk of the firm’s profits for themselves. But when a nation replaces rule of law with rule by lawyers, the only ones who really win are the lawyers, and regaining control of the nation’s civil jurisprudence system may turn out to be much harder than we think.

Read the original Wall Street Journal article, "Erin Brockovich, Exposed" and longer version of the article, "The Dark Side of Erin Brockovich" (The National Post, March 29, 2000).

Read reactions to Fumento’s article: