An Open Letter to the NJ Legal Community

People Are Harmed By Government’s Failure to Hold Powerful Corporations Accountable

Dear NJ Lawyers:

The Bergen Record reported today about a man who lost his leg in a motorcycle accident and won a $2.5 million lawsuit because the State Department of Transportation knew about the unsafe conditions for years and failed to act or warn the public about the problems, see:

Route 23 long known as a dangerous road

Smetana’s lawsuit proved what people in northern Passaic and Bergen counties have guessed for years: The northbound section of Route 23 in West Milford is dangerous. The S-curves there, just under two miles long, were the site of 470 accidents between 2004 and 2014, according to the West Milford police.

What’s more, internal documents and emails uncovered by Smetana’s lawsuit show that transportation department officials knew about the danger since at least 2001, but did nothing to address it until after his accident. Since then, the agency has installed dozens of signs warning motorists to slow down through the curves. …

In depositions and internal documents, DOT officials including William Day, who in 2011 was acting manager of the DOT’s Bureau of Safety Programs, and Frank Basek, a maintenance crew supervisor, said they knew about dangerous conditions along the road. The department did little to fix those conditions due to its limited budget, Day said. …

The improvements did not change the fact that officials appeared to have known about Route 23’s problems years before Smetana’s accident, but did little to address them, court records show. Smetana sued on those grounds, and won.

“When hundreds and hundreds of people are getting hurt and they don’t fix it for years, it’s outrageous,” said Jack Hoyt, the attorney in Morristown who represented Smetana.

Yes, that certainly is outrageous and I am pleased that Mr. Smetana was compensated for some of the harm he suffered as a result of government’s failure to act or warn the public about known risks that were causing accidents for many years.

But Mr. Smetana’s case is hardly unique.

There are similar conditions and far worse risks present in hundreds of communities across New Jersey, where scientists and EPA/DEP regulators are aware of known risks and injuries due to the presence of toxic chemicals.

And the more troubling failures are when government failures involve the regulation of private corporations, as opposed to the far simpler case where government owns and is responsible for transportation infrastructure.

One case in particular is Pompton Lakes, where residents of approximately 450 homes have been poisoned by chemicals seeping into their basements and homes from the Dupont site.

See this timeline prepared by NJ DEP regarding who knew what and when they knew it.

The timeline was obtained by Edison Wetlands Association staff during a file review at DEP under OPRA.

I am baffled by the fact that there are no lawsuits for that assault and government’s failure to warn the residents of those homes for many years, just like the NJ DoT failed to act.

There also is potential fraud and deception involved, see: F is for Fraud

Here is an LTE to the Record that makes the point which I post here in the event that Record editors do not publish it:

Dear Editor:

Reporter Chris Maag did a fine job on your Rt. 23 story – an excellent example of real journalism

One thing I was struck by was the fact that government (DoT) knew about the problem and failed to act or warn the public about it.

Your reporters might want to talk to residents of Pompton Lakes, who are outraged by the fact that US EPA and NJ DEP knew, since 2001, of “vapor intrusion” toxic pollution migrating into their basements and not only failed to warn them about it, but actively worked with Dupont to keep the problem below the public’s radar. I have an EPA email that reveals that.

It gets worse: the residents only found out about the vapor intrusion risks AFTER they signed a settlement agreement with Dupont that surrendered their legal rights to sue Dupont.

A few months after the ink was dry on that settlement agreement, Dupont, EPA and DEP disclosed the existence of the vapor intrusion problems to residents – about 450 homes are impacted.

I guess it’s a lot easier to see the harm from an amputated leg than to observe the various cancers and other illnesses the people of Pompton Lakes have suffered due to their exposure to cancer causing chemicals seeping into their homes for decades from the Dupont site.

Where is the justice in that? Where is the lawsuit? Where is the investigative journalism?