To the editor:
This letter responds to Mickey Friedman’s well-supported column regarding cleanup of the Housatonic River and, in part, his criticism of my column expressing support for the Rest of the River settlement. I would like to briefly restate my position, as it has been drowned out by wide-spread distaste for the thought that Lee should end its fight against the Upland Disposal Facility.
More often than I would prefer, my clients arrive at a binary moment of either accepting an offer to settle litigation or, at what could be considerable expense, continue to litigate to obtain a judgment that may not be materially better (and potentially far worse). Attorneys are a competitive bunch that like a “W” as much as the next person, but good counsel often suggest that laying down one’s arms is the sensible course.
Mr. Friedman believes Lee’s position is that of a Morton’s fork, a choice between the alternatives of continuing to fight the settlement or agreeing to the settlement. My point is that Lee is actually facing a Hobson’s choice – that is, its choice is only illusory as the courts have made full and final approval of the settlement a certainty.
If we could turn the clocks back 30 years, knowing what we know now, we would not be debating the siting of a disposal site in Lee for low-level PCBs. I would like to think a coordinated effort with good counsel would have won the day. Problem is, there are no do-overs. Paraphrasing Donald Rumsfeld, you consider the deal you have, not the deal you want or wish to have at a later time.
Given that the First Circuit Court of Appeals has approved the settlement and that the likelihood that the U.S. Supreme will disturb the judgment is nil, it is my opinion that Lee should work within the settlement to improve the Upland Disposal Facility to the extent possible because there is no viable alternative. I am not qualified to debate any of Mr. Friedman’s thoughtfully considered PCBs research, but I am qualified to say as a litigator that I know when a litigant has reached the end of the road. As I have said, Lee, you have arrived.
As regards the settlement, Lee’s position has been that it “shall fight on the seas and oceans, [it] shall fight on the beaches, [it] shall fight on the landing grounds, [it] shall never surrender.” At this point, I am merely suggesting that, having tried everything else, it is time for Lee to do the right thing and end the fight. Again, it has no alternatives.
Last, regarding my comment concerning the many newly-filed lawsuits asserting personal injury claims against General Electric and others for alleged PCBs exposure, I would simply like to add that I am familiar with the abundant research linking PCBs to cancers. I have litigated such matters on behalf of plaintiffs. My point is that the science is a mixed bag on all cancers and that, to be successful, a litigant needs admissible evidence of continued exposure and a known PCBs-related malady to substantiate the causal link. That is, allegations of PCBs and illness will not suffice.
Peter J. Most
Great Barrington
