A New Movie Makes Her Out as a Hero, But Some SLO County Residents Have Bitter Memories

BY STEVEN T. JONES

Hollywood has made heroes of attorney Ed Masry and his brassy investigator Erin Brockovich. But in San Luis Obispo County many people hold nothing but bitter memories of the pair who helped locals sue Unocal over its contamination of Avila Beach.

"It was the worst experience we've ever been through," said Linda Rudd, one of about 60 current and former Avila residents signed up by Masry and Brockovich, the lead investigator in the Unocal lawsuit.

Set for nationwide release this week, the movie "Erin Brockovich" stars Julia Roberts as Brockovich and Albert Finney as Masry, telling the story of their successful class action lawsuit against Pacific Gas and Electric Co.

Brockovich is portrayed as the unlikely hero–an inexperienced single mother–who discovered PG&E's Hinkley Compressor Station was contaminating the groundwater with toxic, carcinogenic chromium VI and signed up more than 600 residents for a lawsuit that in 1994 won a record $333 million settlement.

"She brought a small town to its feet and a huge company to its knees," is the movie's tagline.

But when Masry and Brockovich rolled into Avila Beach in late 1996, that town was already on its feet and angry at the huge corporation that had saturated the community with oil from decades of underground pipeline leaks.

With the promise of big money and armed with media accounts of their Hinkley success story, the pair took on dozens of Avila residents as clients and filed one of three major civil lawsuits against Unocal over the contamination.

Unlike the other lawsuits, however, Masry's suit tried to focus on claims that the contamination was causing both acute and long-term health problems for their clients, rather than simply focusing on the displacement and diminished property values caused by Unocal.

Masry and Brockovich made headlines in 1997 by releasing studies purporting to show beachgoers and locals were being exposed to unsafe levels of polycyclic aromatic hydrocarbons, carbon disulfide, and other toxic, potentially cancer-causing compounds ("Is Avila a Toxic Beach?" New Times, Feb. 13, 1997; "Experts Seek Closure of Avila Beach," Telegram-Tribune, April 25, 1997).

"Adults and children who frequent the beach engaging in typical beach activities such as playing in the sand, burying themselves in the sand, and sunning themselves would appear to be at great risk," wrote William Marcus, a toxics expert Masry hired to analyze his data.

Masry and Brockovich had a battery of medical tests performed on their clients that purported to show increased levels of petrochemicals in the blood of two residents and medical problems and cancer cases allegedly related to chemical exposure in others.

"Residents and visitors experience skin rashes, respiratory symptoms, nervous system symptoms, and flu-like illnesses. Local dogs die of mysterious illnesses," read a press release from the Atascadero-based Response Team for the Chemically Injured, which was on Masry's payroll and worked on the case.

If all this was true, it appeared the Masry-Brockovich duo was headed for another multimillion-dollar judgment against another major corporate polluter.

Yet, as even Masry will today admit, the ultimate settlement fell far below expectations and was based more on property claims (for which every affected Avila resident received compensation, even those who didn't sue) than the health claims he failed to prove.

Greg Thomas, the SLO County health officer, has vivid memories of his dealings with the Masry team.

"They certainly created a heightened concern about the contamination in Avila Beach," Thomas said.

Responding to Masry's sensational claims that the beach was making people sick and should be closed, the county had a half-dozen outside experts reviewed Masry's data and ordered a comprehensive health analysis of Avila Beach.

Ultimately, neither the peer review nor follow-up testing backed up Masry's bold claims. Thomas concludes: "The call to close the beach because of imminent health concerns was blown out of proportion."

Experts at the time concluded Masry and Brockovich had neglected accepted scientific standards in collecting their samples, gathering tar balls and sand that was filled with pieces of charred wood from the fire rings (both of which can contain toxic compounds) and presenting them as if they were the general condition of the beach.

"All reports demonstrate the presence of extremely low levels of contaminants...which do not pose significant risk of harm," Alvin Greenberg, the county's toxicology consultant, concluded after reviewing Masry's data. "In fact, the Avila Beach site appears to be as clean as other beaches in the area."

At the time, when New Times investigated the competing claims ("‘Safe as Any Other Beach’," New Times, May 8, 1997), Brockovich claimed some of the high readings weren't from tar balls but from plain beach sand–"Someone has clearly misinterpreted this data," she said at the time–although independent testing was never able to duplicate the results.

Brockovich wasn't available for an interview this week. Masry said she was in the field doing research for a new case in Bend, Ore., and could not be reached.

For his part, Masry blames the county for his failure to win a big settlement for his clients. He accuses the county of deliberately covering up health risks at the beach.

"No matter what we did, the county in conjunction with Unocal would try to damage our case," Masry said. "The county of San Luis Obispo did the citizens of Avila Beach a great disservice. Instead of trying to help us get to the truth of what was going on on that beach, they were deliberately sabotaging our efforts."

Although the settlement, reached in the middle of last year, was confidential and Masry would not discuss it, sources say the total settlement was just over $3 million, of which Masry's legal team took half. One property owner also reportedly received about $550,000 for his property, leaving more than 60 remaining clients to divide less than $1 million.

"I've never been totally happy with any settlement in any case. Under the circumstances, fighting the county, I think we did OK," Masry said. "I blame the county for really having hurt the people of Avila Beach. If the county had cooperated with us, the people of Avila Beach would have been compensated for their personal injuries, which I think some of them did have."

In this case, "cooperation" by the county would have meant shutting down Avila Beach and acknowledging it was toxic even though the county's experts–and state health officials brought in to review the data–didn't agree it was unsafe.

Rather than a county cover-up, much of the Avila dispute appears to be a case of Masry and Brockovich trying to fit Avila Beach into the mold they developed in Hinkley, their first major, and by far largest, toxic tort case.

But Avila Beach was not Hinkley, a desert town near Barstow where the population really was sicker than average and a pathway between the pollution and the people (via contaminated groundwater) was clearly established.

Avila Beach did not have unusually high rates of cancer or other diseases that could be caused by pollution exposure, according to public health records. And Avila residents drank water pumped in from the outside, not groundwater resting beneath a pollution plume.

Even Masry's presentation of how they came to Avila Beach shows that the Masry/Brockovich team had a preconceived notion about what they wanted to find. Before doing any testing, Masry said, "We knew that there was dangerous toxins on the beach, we just didn't know the extent."

The movie "Erin Brockovich" shows Brockovich discovering that a real estate case they had was actually a lucrative toxic tort case. In Avila Beach some say she tried to do the same thing, even though it wasn't warranted by the facts.

"They made a mistake at the outset in going after the health thing," said attorney Jim Duenow, who won a substantial settlement for his Avila clients. "There weren't any provable health claims, and that was the problem. But [Masry] got everybody all pumped up about it."

Duenow said Masry had a preconceived notion that this was a toxic tort case, and when that didn't pan out Masry's legal team got disillusioned and jumped at an early settlement offer by Unocal.

"They signed up a whole bunch of people. Everyone who went through Avila they signed up. But then they got disillusioned with the case," Duenow said. "They kind of ran out of gas."

Beyond failing to prove their health claims, Masry and Brockovich also left many of their clients feeling used, neglected, conned, and just downright angry.

Ed Masry does not have a reputation for diplomacy or responsiveness to his clients. In fact, as the movie shows, Brockovich forced Masry to give her a job only after he lost her traffic accident case and then spent weeks ducking her and refusing to return her phone calls.

The difference in Avila was that Erin Brockovich was on Masry's side, using her undeniable sex appeal, straight talk, and trademark cleavage-bearing outfits to help sign up clients during an early meeting with Avila residents at Embassy Suites in San Luis Obispo.

"She was parading around in this silk outfit and doing a lot of bending over," client Roger Mackenzie said of the meeting. "The fact that they made a movie and turned her into anything more than a dog-and-pony show is just ridiculous."

"She is a good-looking, attractive woman, and she certainly is busty. And if she can use her looks to her advantage, to get documents, that's fine with me," Masry said of Brockovich. "She is an outstanding investigator, the best in the business, as far as I know."

Although Masry said they were invited into Avila Beach by residents whose names he can't recall, some of his clients believe Masry had heard media accounts of the contamination and saw a gold mine.

"He really talked up the money and hooked everybody in, but nobody was happy with how it turned out," Rudd said. "We weren't too happy with the whole law team. They were like ambulance chasers."

Mackenzie and others say Masry employees combed the town looking for clients, including spending time in the town's two bars, signing up everyone they could, including serious alcoholics and out-of-towners.

"They came in and dramatized what was going on and got everyone hooked. They would go into the bars to sign up whoever they could," client Connie Allen said. "Nobody was happy with these lawyers, nobody. Everyone was mad by the end."

Allen said the Masry legal team hopelessly bungled parts of the lawsuit and caused the Allens’ property to be sold to Unocal against their wishes for far less than the company paid for similar properties in Avila.

"We lost a valuable piece of property because he was too inept to ask the right questions and file the right papers," Allen said.

Everyone in the case was subjected to a battery of medical tests, which were paid for by Masry's firm but which cost his clients time and lost wages and ultimately proved an insignificant part of the suit, much to the surprise of the clients.

"All the sudden, they were talking about our property. They decided they weren't going for health effects, it was property values," Rudd said. "They based most of the settlement on the property."

Unhappy with Masry and the direction of the suit, Rudd said she and her husband tried to withdraw from the suit at one point, but they say they were told by Masry he would still take half of whatever settlement they received, no matter who represented them.

"I never said that. I don't know what they're talking about," replied Masry.

Masry also denies using his success in Hinkley to build unreasonable expectations in his clients, or of playing ambulance chaser and signing up people who weren't bona fide victims.

"I don't think there were any heightened expectations. From the beginning, it was a dogfight. It was a very, very tough case," Masry said. "I've never promised anything. The first thing we tell people is we don't know where we're going with this. We could get our ass kicked. We've never gotten up in front of people and said we'll make you a million dollars. Never ever would we do that."

"That is such a lie," Mackenzie said.

He said Masry and Brockovich were talking from the very beginning about making people rich, raising everyone's hopes. Interestingly enough, the movie showed many of the Hinkley clients at one point mad at being deceived over how the lawsuit would proceed. The record-breaking settlement in the end only came because Brockovich was serendipitously given documents late in the case showing PG&E was covering up knowledge of the contamination.

"Maybe some people who are unhappy have a reason to be unhappy, but all we can do as lawyers is the best we can do. We can't do more than that," Masry said of the Avila case. "You can't make everybody happy. It's just not possible. We just do our best." Æ

New Times staff writer Steven T. Jones interviewed both Ed Masry and Erin Brockovich in 1997 and attended last weekend's sneak preview of "Erin Brockovich."