Court venue still unclear for Avoca litigation seeking $619M

By Jennifer Learn-Andes - [email protected]
Both sides disagree on the proper court to decide recent litigation seeking additional compensation for 4,400 past and present Avoca-area residents who had lived near this now-defunct Kerr-McGee creosote site. - File photo

A decision is still up in the air on which court will preside over a lawsuit seeking $619.3 million for 4,400 past and present Avoca-area residents, recent filings show.

Avoca plaintiff Stanley Waleski filed the suit on the group’s behalf in April in the Luzerne County Court of Common Pleas.

The defendants — Philadelphia law firm Montgomery, McCracken, Walker & Rhoads and two of its attorneys — moved the case to federal court in Scranton on June 4 through an automatic action known as a removal.

Two more venue changes have been requested since then, court records show.

The Montgomery defendants filed a motion seeking a case transfer to federal court in New York City.

Meanwhile, Waleski filed paperwork arguing the case should be moved back to Luzerne County Court.

U.S. District Judge Robert D. Mariani has assigned U.S. Magistrate Judge Martin Carlson to oversee all pre-trial motions.

In an order this week, Carlson set a July 30 deadline for both parties to submit all briefs and replies associated with the court venue matter.

The 4,400 Avoca plaintiffs were involved in 2005 litigation filed by the Powell Law Group seeking compensation for health problems they attributed to creosote exposure from the defunct Kerr-McGee Corp. wood treatment plant that operated in the borough for four decades until 1996.

Their claims were ultimately processed through the 2009 bankruptcy of Kerr-McGee and related entities, which was adjudicated in the federal bankruptcy court in New York City.

Powell Law had hired the Montgomery firm for its bankruptcy expertise in 2009.

Waleski’s complaint accuses the Montgomery firm of breach of contract for allegedly failing to take actions seeking top-dollar compensation for the local victims in the bankruptcy case.

The Montgomery firm has defended its work and contested the “phantom malpractice” argument in an unrelated legal action involving Powell Law and the payment of legal fees.

The Philadelphia firm has filed a motion to dismiss Waleski’s suit, arguing in part that Waleski failed to state a claim and include Powell Law, which would be a “necessary and indispensable party” in such an action. The firm obtained the court’s permission to exceed the 5,000-word limit in the memorandum of law it will be filing seeking dismissal, saying the document won’t be more than 8,000 words.

However, Carlson suspended filings on the motion to dismiss amid the pending venue decision.

Myers, Brier & Kelly in Scranton and Thompson Hine in Cincinnati are representing the defendants. Waleski is represented by Pittsburgh attorney Scott M. Hare and legal counsel from Keller Lenkner in Chicago.

Both sides disagree on the proper court to decide recent litigation seeking additional compensation for 4,400 past and present Avoca-area residents who had lived near this now-defunct Kerr-McGee creosote site.
https://www.timesleader.com/wp-content/uploads/2018/07/web1_TTL101917Avoca-Project5.jpgBoth sides disagree on the proper court to decide recent litigation seeking additional compensation for 4,400 past and present Avoca-area residents who had lived near this now-defunct Kerr-McGee creosote site. File photo

By Jennifer Learn-Andes

[email protected]

Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.

Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.