The Case of the Poisoned Fish, by Sidney B. Silverman

In the mid-1980s, East Hampton’s summer and year-round weekend population was growing rapidly. The demand for water views in particular was enormous, and the seemingly endless construction of new homes along the shoreline caused wastewater and other pollutants to run off into the bays. The contaminants made their way into clam and scallop beds; at least two lucrative fishing areas were damaged. 

The death knell for commercial fishing sounded when striped bass became contaminated by PCBs, polychlorinated biphenyls, and in 1986 New York State, citing health reasons, closed the bass fishery. Fishermen called the striped bass their “money fish,” providing what small profit they made each year; the other catches only covered overhead. 

General Electric was the cause of the contamination. It operated several plants adjacent to the Hudson River in upstate New York. The plants manufactured transformers and capacitors, using PCBs, a chemically stable, nonflammable fluid and a suspected carcinogen, for insulation. In handling this chemical, G.E. was sloppy to the point of recklessness. PCBs spilled onto the floor of the factories, and when the plants were hosed down at night, the waste PCBs were discharged into the Hudson. 

Striped bass spend the winter in the fresh water of rivers, such as the Hudson, and there they cast their spawn. In the spring, summer, and fall, they migrate from the Hudson River through the bays and oceans surrounding Long Island and New York City. The fish feed only in winter (while in the Hudson), and never while migrating. Newborn fish remain in the river for several years before they are large enough to leave. 

While in the Hudson, the stripers ingest PCBs by feeding on fish lower in the food chain. PCBs are nonbiodegradable and remain for years in the lipid fats of the stripers. Their concentration in fish is monitored by federal and state agencies. Over time, the accumulation of PCBs in striped bass reached unhealthy levels and the state imposed the ban. Local fishermen were devastated; they could not survive without striped bass.

At a July Fourth party, I met Arnold Leo, then-secretary of the East Hampton Baymen’s Association, one of several such associations of fishermen working the waters of Long Island, New York Harbor, and the upper reaches of the Hudson. Arnold was not your typical fisherman. In his early 40s he’d left a Madison Avenue advertising job, moved to East Hampton, and become a full-time fisherman. 

He complained to me about the loss of the striped bass fishery and asked if the fishermen could sue G.E.

I researched the issues, concluded that the fishermen had a good case, and offered to represent them on a contingent fee basis, provided that all the fishing associations and their officers joined as plaintiffs. It was important that all join. Many class actions are perceived as “lawyers’ cases” and bear a stigma that can overshadow the merits. I wanted this case to be perceived as the fishermen’s case. Fishermen are hard-working, self-employed, and risk their lives on the high seas. Sir Walter Scott (and Peter Matthiessen, and Joe Pintauro) captured their essence in “The Antiquary”: “It’s no fish ye’re buying, it’s men’s lives.” I wanted the romance to rub off on the case. 

Arnold Leo solicited the officers of the various associations. All agreed. It was a good deal; free representation and a chance to hit back at G.E. for destroying their livelihood. 

The state’s Department of Environmental Conservation had 10 years earlier sued G.E., contending that it had discharged PCBs in the Hudson, contaminated its waters, and damaged fish and wildlife living in and near the water. The case was tried before Abraham D. Sofaer, a professor of law at Columbia who was designated by the parties to decide the dispute. The proceeding addressed the issues of liability: Did G.E. intentionally, or acting with gross negligence, discharge PCBs into the Hudson, and were its discharges the cause of PCB contamination of the Hudson? 

Sofaer’s decision was a powerful indictment of G.E. He found that the company knew, as early as the mid-1930s, that PCBs were suspected as a cause of cancer. He also found that Monsanto, the manufacturer of the chemical, had warned G.E. to take every precaution to prevent PCBs from entering the environment, and urged that waste and spent PCBs should be returned to Monsanto for destruction at an incinerator maintained by the manufacturer. Sofaer concluded that G.E. alone was responsible for the accumulation of PCBs in the Hudson, all other sources contributing negligible amounts.

G.E. and New York State agreed upon the remedy. G.E. would cease discharging PCBs, pay a fine to the state, and conduct an extensive study to determine the best method to rid the Hudson of PCBs, which have a half-life of 50 years. That means their toxicity is only half-dissipated after 50 years. G.E., of course, knew this, but the company’s study cynically concluded that doing nothing was the most effective way to rid the river of the toxic chemical.

Sofaer’s opinion served as a blueprint for all stages of the case. It was attached as an exhibit to the fishermen’s complaint, and its allegations accusing G.E. of polluting the river were derived from the earlier decision. G.E. made several motions aimed at getting rid of our claim; none were successful. G.E. failed because we quoted from and gave the court copies of the Sofaer decision. 

How could we lose? We had a well-documented decision, finding that G.E., with knowledge that PCBs were a carcinogen, recklessly and negligently discharged them into the Hudson. Or, as I said in court, “G.E. treated our beautiful Hudson River as though it were the company’s private cesspool.”

In preparation for trial, G.E. examined many of the fishermen. They testified about work they did when they were forced to give up fishing, mostly mowing lawns and banging nails. Ironically, their evidence was devastating to their claim for money damages. They earned very little from their chosen work; more from the odd jobs. From a strictly financial point of view, the fishermen were better off not fishing. 

G.E. argued that any claim for loss of earnings due to the closure of the striped bass fishery had to be offset by money earned from those other jobs. The company also argued that commercial fishermen had depleted the stock of striped bass, and even if the fish had not been contaminated, conservation rules would have restricted the catch and virtually closed the fishery. This argument was supported by size and catch limitations placed on striped bass in areas unaffected by PCB contamination. 

I got copies of the testimony of the witnesses and all documents submitted in the state’s case against G.E. When it was my turn to examine G.E., I made good use of that record. If a witness had testified in the earlier case, I read selectively, picking out important facts that helped our case. I then asked whether he had testified truthfully. I did not care whether he answered yes or no. If he said yes, as most did, the facts became uncontested. If he answered that his testimony was inaccurate, as several witnesses did, his credibility was impeached. Some witnesses had died or were otherwise no longer available. In their place, I examined their successors, and asked whether their colleagues had a reputation for telling the truth. As good company men, they invariably answered yes. I then read the testimony I wanted into the record. I also made extensive use of documents to fill in holes.

The case was strong on liability but weak on damages. After working on it on and off for five years, the best I could see was a Pyrrhic victory. G.E. would be bloodied, but the fishermen would collect very little in damages.

The case was pending in Riverhead, the county seat for the East End, and when discovery was concluded, I wanted a jury trial as soon as possible. The trial calendar was jammed; a trial would be years away. Cases, however, can be advanced for good cause. I moved for an expedited trial on the grounds that the fishermen were both old and poor. 

My motion was granted; the case was set for an immediate trial. I contacted the television network Court TV, whose producers agreed to televise the proceedings. In addition, prominent local politicians promised to attend and sit with me at counsel table. Would their presence have an effect on the jury? It could not hurt.

At a pretrial conference, the judge asked how long my opening would take. “Your honor, it will take a full day for me to describe to the jury the extent of G.E.’s wanton and grossly negligent conduct, and its devastating effect upon the men who sell not just fish but their lives.” G.E. knew what was coming — and on national TV!

Jack Welch, the C.E.O. of G.E., had a policy when it came to PCB litigation: never settle a case. But he changed that policy. A week before the trial was to begin, his attorney proposed a settlement. 

The lawyer said the ban on striped bass had lasted for five years and was augmented by limitations imposed in the interest of conservation. “The company perhaps could be found liable for the health ban, but not the conservation restrictions.” G.E.’s lawyer pointed out that a New York State agency’s records showed that in the five years prior to the ban, the aggregate value of the catch to the fishermen was $7 million. The lawyer offered to settle the case for $7 million, to be distributed under any method approved by the court. G.E. also agreed to pay the costs and expenses of the litigation, including my fee. 

The offer was a favorable one. In return for giving up the right to tarnish G.E.’s slogan, “We bring good things to life,” the fishermen divided the approximate value of the catch as if no health ban had been imposed and without an offset for money earned in lieu of fishing. The fishing associations and their members unanimously endorsed the proposed settlement.

The case was extensively covered by The East Hampton Star. Every preliminary decision was a front-page story. Praise was heaped upon yours truly. Nothing, however, compared to the announcement of the settlement. It was the lead story, entitled, “Fishermen Win a $7 Million Dollar Recovery.” I was the subject of a glowing editorial.

That weekend, there was a benefit performance for the East Hampton fishermen of Pintauro’s play “Men’s Lives,” based on Matthiessen’s book, followed by a big party. At the party, a newspaper tracking “celebrities in the Hamptons” photographed Leo and me; the picture appeared in the center of the photo layout. Fame!

I took a week off and spent it basking in glory. By the next week, I was all but forgotten. Fame is fleeting.

Sidney B. Silverman was a corporate litigator for 43 years. The author of a memoir, “A Happy Life: From Courtroom to Classroom,” and five novels, he lives in Amagansett.