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Judge refuses to withdraw from Love Canal litigation

LOCKPORT – State Supreme Court Justice Richard C. Kloch Sr. on Thursday refused to withdraw from the new round of Love Canal lawsuits, as demanded by the lead attorney for the plaintiffs.

Kloch also pushed for the attorneys in the massive set of cases – 17 separate complaints now totaling some 1,250 plaintiffs – to start moving things along “so we don’t have litigation that stretches on for decades.”

William H. Mack, the New York City attorney leading the charge for the plaintiffs, filed a motion calling on Kloch to recuse himself. He said during a court appearance in May 2014, it seemed to him that Kloch was showing favoritism toward Kevin M. Hogan, a Buffalo attorney who is lead counsel for Occidental Chemical Corp.

Mack said clients who attended that court session told him afterward, “The judge really likes that lawyer and he doesn’t like you.”

Also, Mack objected to a news article by Kloch’s daughter, published Dec. 13 in the Niagara Gazette, in which Richelle Kloch quoted her father as regretting the length of time it took to settle the last round of Love Canal damage cases and seemed, in Mack’s opinion, to praise Occidental for settling.

Kloch, who didn’t comment on the current cases in that story, said Thursday that his daughter chose to write the article to fulfill an assignment in a freshman writing course at Niagara University.

The judge said neither he nor his daughter knew her professor was going to submit the best pieces to the Gazette for possible publication.

Mack said, “I don’t think there’s much of a distinction between the earlier case and this case. … The community doesn’t know it was a freshman writing course.”

Kloch assured him, “This particular case, I have to tell you, I have no bias, I have no prejudice.”

Occidental, the corporate successor to Hooker Chemical Co., which filled Love Canal with toxic waste in the mid-20th century, is a defendant in the case, along with several companies involved in a cleanup of a sewer near the landfill, the City of Niagara Falls and the Niagara Falls Water Board.

The case originally was assigned to Niagara County Judge Matthew J. Murphy III, but after the defendants made an unsuccessful attempt to move it to federal court, it landed with Kloch, with no explanation offered, even to the parties in the suit.

Kloch explained Thursday, “I’m a supervising judge, and Judge Murphy called me and said, ‘I don’t want this case.’” He said Murphy, who acts as a part-time State Supreme Court justice in civil cases, told him that it was sure to be a long case and Murphy’s law clerk was retiring.

Thursday’s session then shifted to talk of scheduling. Kloch said, “I’ve got to see some way of moving this along in a timely manner.”

Hogan said he’s already compiled a pretrial to-do list of 20 items after discussing the matter with all the other attorneys.

After a conference in the courtroom with Kloch, a telephone conference among all parties was set for May 16 to update progress.

Hogan said one of the major tasks facing the attorneys is to “winnow out” which claimants are contending they suffered long-term health damage and which allegedly suffered “acute” injury from the spray of toxic chemicals in a sewer-cleaning incident in January 2011 on Colvin Boulevard in Niagara Falls.

The long-term health claim implies that the 40-acre Love Canal containment area, in which all the remaining toxic waste is stored, is leaking again. The state Department of Environmental Conservation denies that and contends that the toxics in the sewer were missed in the 1985-86 cleaning project because they were in a low-lying sewer main.

Kloch said tackling the question of possible chemical migration “is going to be labor-intensive.”

Mack said all the people allegedly harmed in the 2011 incident “also had chronic (health issues). They’re living there, and they don’t know they’re being poisoned.”

Mack also contended, “I have clients who were exposed and injured, but moved away before the January incident.”