The BioLab fire is out, but the litigation against the company is heating up.

About 21 separate class action lawsuits have been consolidated in federal court by District Judge Sarah Geraghty, who has been tasked with herding the cases.

Dozens of attorneys and firms around the country filed the lawsuits, representing businesses, residents and other individuals affected by the fire and resulting chemical plume, which began Sept. 29 and lasted about two and a half weeks. 

Some of these firms represented alleged victims in the East Palestine train derailment, the Deepwater Horizon oil spill and the Tennessee Valley Authority's Kingston coal ash spill cases.

The potential liability BioLab and its parent company, KIK Consumer Products Inc., face is still unknown as impacts from the fire and plume are still being measured. What's certain is that such cases are highly complex, plaintiffs will work hard to prove injury, and BioLab will challenge those assertions while getting questions about its safety record. Ultimately, both sides will face tough decisions as pressure for a settlement mounts. The company declined to comment about the cases.

As they wrangle over these claims, both sides might have to hire experts on industrial safety, manufacturing operations and chemical safety.

“Our firm has consulted a myriad of experts working in various fields including fire investigation, combustion chemistry, meteorology, environmental engineering and toxicology to name a few,” Jayne Conroy of Simmons Hanly Conroy said in an email.

While courts generally don’t look at a company’s past conduct to predict future conduct, BioLab has experienced previous fires in Conyers. These acts might be considered by the court as it weighs accusations of negligence or claims for punitive damages, Long said. 

“If a company has a long history of disregarding environmental regulations or putting people at risk or violating the law, that potentially becomes relevant to the seriousness and the egregiousness of the defendant's conduct, which might impact the punitive damages award,” Long said.

To win, plaintiffs' attorneys must also prove either generally or specifically that their clients' injuries were caused by BioLab's fire and plume.

“General causation being: Could this particular, in this case, chemical cause a certain type of disease? And specific causation would be: And in this case, did it cause that disease to this particular plaintiff?” Chris Robinette, a law professor at the Southwestern Law School, said.

Depending on the case, causation could be difficult to prove as individuals can have preexisting conditions, can be more vulnerable to injury than others, or are impacted by other environmental factors that could exacerbate their injuries.

The court might also have to address the question of whether exposure to the chemicals from the fire and plume could cause injuries that have long latency periods and might not be present yet. 

“The big issue will be to prove a physical injury to people, because courts are reluctant to provide compensation for fear of developing a disease, unless there is actual physical injury,” Robinette said.

Prominent lawyers have been given leadership roles by the court

The consolidated cases are still in the earliest stages of litigation. The first ones were filed the day after the fire.

Mass toxic torts have become more common as environmental incidents have occurred over the last couple of decades. Due to this, some personal injury firms have developed a playbook in how they handle these cases, Long said. This could explain why dozens of lawyers are involved in these cases, including lawyers who have litigated cases linked to some of the most well-known environmental incidents in the country. Some firms, such as Morgan & Morgan and Lieff Cabraser have advertised online to find plaintiffs for their BioLab cases.

Judge Geraghty recently divided roles among about 16 of the lawyers. Geraghty appointed four interim co-lead class counsels: Jason Carter of Bondurant Mixson & Elmore, a grandson of former President Jimmy Carter; Daniel Rock Flynn of DiCello Levitt; Jean Martin of Morgan & Morgan; and L. Chris Stewart of Stewart Miller Simmons. "The attorneys appointed to positions in Judge Geraghty's recent interim class counsel order practice at some of the nation's top plaintiffs' firms, with extensive experience in mass torts,” Robinette said in an email.

Lead attorneys and firms can be decided based on ability to handle cases of this scale, if they’ve handled previous class actions, if they’ve done multidistrict litigation and if a firm has local ties, Darren Penn, of Penn Law Group, said. “In a situation like this, where you have multiple firms, it's even more vital to have a small group like an executive committee that can speak for the whole,” Penn said. This could increase efficiency and potentially lead to a quicker settlement.

Plaintiffs' attorneys will need to ensure that there is a commonality of injuries that are easily measured, in order to get the class or classes defined and certified, Penn said. Defendants might fight against certification of a class, Penn said. Plaintiffs might opt out of being part of a class if they don’t agree with the intentions or goals for the lawsuit or how the case is being handled. 

The court plans to have a status conference on the consolidated cases every six weeks or as needed; those conferences will be preceded by meetings between members of the interim co-lead class counsel and the defendants’ counsel. The next conference is scheduled for Dec. 5. 

The plaintiff attorneys must also file an amended consolidated complaint by Jan. 10. The defense must respond within 45 days. 

BioLab, plaintiffs have many options to weigh in mulling settlements

Typically, tort cases are taken on contingency by lawyers, meaning they don’t get paid unless the case is settled or won.

“If the clients end up settling the case and making some money or proceed all the way to trial and recover some money from the jury, then the plaintiff lawyers will collect a percentage of that — 33%, maybe 40%, those figures are typical,” Long said. The worse the facts are or the more liability a company thinks it is facing, the more likely it is to settle, Long said.

A quick settlement could also benefit plaintiffs in need of immediate financial assistance or businesses that had to shut down while local, state and federal authorities worked with BioLab to remove and neutralize the product that caused the plume. These businesses could need immediate financial assistance for the business they lost. 

However, settling quickly can be detrimental if plaintiffs are unaware of the consequences, Robinette said. If a plaintiff accepts a settlement, chances are that’s all they could be getting for their claims. There’s also concerns about injuries that could come in the future that might be caused by this event. “If you resolve your claims earlier, you might suffer damages or suffer harm that you were not compensated for,” Penn said. Plaintiff attorneys could stipulate in a settlement that plaintiffs receive medical monitoring to catch health impacts, Penn said.

Compensation for medical monitoring awarded at the end of a case is a controversial issue. After receiving a report of sexual misconduct by a former faculty member in March 2023, the school informed community members and commissioned T&M USA, a security and investigations firm, to look into past instances of sexually inappropriate behavior by staff and interview individuals who came forward with firsthand experiences.

The firm did not receive any additional information regarding the first former employee reported. However, T&M USA shared information about three former employees, all men, accused of acting sexually inappropriately. One employee was found to have “engaged in acts of sexual misconduct with three female students” in the late 1970s and the 1980s. The students were in grades 10 through 12. The firm said a second employee in the early 1980s “engaged in separate instances of sexual misconduct with a faculty member and three female students who were in grades 8 through 11.”

T&M USA discovered a third employee in the 2000s engaged in sexual misconduct with a 17-year-old female student. After leaving the school, the man sent sexual messages online to another student. She reported the messages to the school, “but the school failed to offer appropriate support to her,” according to the letter from Harsh and Long.

The school has not named the former employees or anyone interviewed by T&M “because to do so would jeopardize the privacy of the former students, some of whom wish to remain anonymous,” Harsh and Long say in their letter. Greater Atlanta Christian is an infant-12th grade school on Indian Trail Road in Norcross serving over 1,800 students. The school opened in 1968. Greater Atlanta Christian said it has made reports to child protective services about the former employees. In situations where any of those men may be working with children, the school also contacted his current employer. It also has offered to pay for therapy for the former students harmed at the school. Greater Atlanta Christian declined to provide details about the jobs the accused employees held or the years they worked at the school. It also declined to provide information about possible legal action related to the investigation’s findings.

Georgia law allows for victims of child sexual abuse to file a lawsuit until they are 23. The AJC contacted the Gwinnett County District Attorney’s office to see if they are investigating any information in the T&M USA report and is waiting on a reply. “This investigation has helped us better understand our past, hold ourselves accountable, support those who have been harmed and, from this hard-learned lesson, do what we can to make our school safer. We can promise you that we will never become complacent when it comes to ensuring that students feel safe at our school,” Harsh and Long said.

They also encouraged anyone with information about employee misconduct to come forward. The school’s letter last year announcing the investigation lists steps it says it takes to protect its students, including background checks of employees and volunteers; guidance to employees on adult-student boundaries, recognizing child abuse and mandatory reporting duties; and screening all campus visitors by checking driver’s licenses against the National Sex Offender Registry.

 

"A lot of courts will not allow recovery just purely for the cost of medical monitoring, absent any sort of present physical injury," Long said.