LOCKPORT – The lead counsel for the 1,000 plaintiffs in the new round of Love Canal litigation has asked State Supreme Court Justice Richard C. Kloch Sr. to remove himself from the case.
William H. Mack, a New York City attorney, contends that Kloch showed bias in remarks about past Love Canal cases in a newspaper article written by Kloch’s daughter, and seemed to act a little too favorably to the local attorney for Occidental Chemical Co. during a past court session.
Mack said he expects the motion to be argued March 10 in Lockport, but declined further comment beyond the material in his legal filings.
The current round of lawsuits, filed in 2012, 2013 and 2014 by past and present Niagara Falls residents who lived near Love Canal, contends that they have suffered health problems as a result of alleged continued leaks from the infamous chemical landfill.
The state Department of Environmental Conservation has denied that the 40-acre fenced site is leaking again, and said a discharge of chemicals during a January 2011 sewer line repair on Colvin Boulevard in the neighborhood came from material left in the line since the original cleanup in 1985-86, when it allegedly was missed because the Colvin Boulevard pipe was lower than other sewers in the area.
“We believe the plaintiffs’ allegations in the lawsuit are without merit and will continue to vigorously defend the case,” said Eric Moses, a spokesman for Occidental. It’s the corporate successor to Hooker Chemical Co., the Niagara Falls company that dumped toxic waste in Love Canal in the mid-20th century.
Eighteen separate lawsuits have been filed against Occidental and several other defendants, including the City of Niagara Falls, Glenn Springs Holdings, Gross Plumbing and Heating, Op-Tech Environmental Services, Roy’s Plumbing and Scott Lawn Yard.
In October, the Appellate Division reversed an August 2014 ruling by Kloch that removed several defendants from the case, in a complex decision that involved different rulings on various types of complaints made in the original lawsuits.
That put all the original defendants back into the line of fire, although since the appellate ruling, attorneys in the case have agreed to drop the Gross firm from the list of defendants.
When the first of the lawsuits was filed, the case was randomly assigned to Niagara County Judge Matthew J. Murphy III, who spends part of his time as an acting State Supreme Court justice in civil cases.
However, the defendants sought unsuccessfully to have the case transferred to U.S. District Court in Buffalo. When it was refused by federal court, the case didn’t land back with Murphy but was reassigned to Kloch, for reasons that never have been publicly revealed. Mack wrote in his recusal motion that the reassignment wasn’t explained to the attorneys, either.
On Dec. 13, the Niagara Gazette published an article by Richelle Kloch, the judge’s daughter, who is a student at Niagara University and not a staff reporter for the newspaper. In the piece, headlined “Appellate Court decision dooms Love Canal cases to decades of litigation,” she quoted her father in several paragraphs.
“I can’t talk about the present suits; judicial ethics precludes me from talking about any case in litigation,” Kloch said. But he went on to speak about the final case in the first round of Love Canal litigation, which ended in 2005, 27 years after Love Canal was declared an environmental disaster area.
“I’ll never forget the final family who had their case resolved by me in 2005. I have to tell you I believe the whole legal system had let that family down,” the judge said in the Gazette piece. “It was documented to me that there was absolute proof that there were various health issues that affected a number of members of that family of a serious nature. The coincidence was beyond belief. There had to be some relation between where they had been living and what happened to that family. I have to give credit to Occidental. We didn’t go to a trial. We settled it after much discussion and got a satisfactory result from that lawsuit on behalf of that family. It is unimaginable that it took from the 1970s to 2005 to resolve that litigation, and I felt sorry for that family.”
Mack, counsel for the 1,000 plaintiffs in the new cases, wrote in a motion filed this month that those comments show Kloch is on Oxy’s side, pointing to the statement “I have to give credit to Occidental.” He also claimed that Kloch seemed to imply that the new plaintiffs also will be “let down” by the judicial system and that he already has formed an opinion on causation of health problems by saying, “There had to be some relation between where they had been living and what happened to that family.”
And Mack wrote that the rules of judicial conduct bar judges from making any public comment about any pending case.
“Despite being couched as comments on the earlier Love Canal litigation, this court’s statements to the media directly bear on the instant case, and many others now pending before this court,” Mack argued.
Mack also wrote that the transcript of arguments in Kloch’s courtroom in May 2014 shows that Kloch had a liking for Occidental counsel Kevin M. Hogan of the Buffalo law firm of Phillips Lytle.
He said Kloch went out of his way to praise the quality of Hogan’s legal briefs, saying it’s “always a joy” to read Hogan’s submissions, which he found “very illuminating.”
Mack wrote, “An objective review of the record readily reveals that no disparity exists between the lawyering performed by the two sides.”
Mack also complained that Kloch criticized him for legal angles he didn’t use in the case and accused the judge of “simple animus.” He wrote that Kloch should recuse himself from the case because of a “palpable tenor of partiality in the courtroom.”
Kloch declined to be interviewed about the motion. Hogan referred comment to Moses of Occidental, who said the company’s counsel will respond in papers to be filed before the March 10 arguments.