What You Need to Know
Three lawsuits over hair relaxers made by Revlon, L’Oréal and others join other cases that focus on consumer products targeted to Black women.
The lawsuits—filed in federal courts in New York, California and Illinois—follow an Oct. 17 study from the National Institute of Environmental Health Sciences that found women who used hair relaxers more than four times a year were more than twice as likely to develop uterine cancer.
Chicago’s DiCello Levitt announced the lawsuits on Monday—two on behalf of women with uterine cancer and one with uterine fibroids.
Diandra “Fu” Debrosse Zimmermann, co-chairwoman of DiCello Levitt’s mass tort practice group, said her firm plans to file additional cases “in the near future.”
“People change their hair styles and change their look, but when you’re selling a product to alter someone’s hair that creates a higher risk of cancer and fibroids and real, life-altering issues, there’s a problem,” Zimmermann said. “This is a significant moment for a lot of women. And I think that in churches and in schools and in academia, folks are going to be talking about what our lawsuits are about, and about the women in their family who need justice, and the women in their family who used this since they were kids and have these conditions.”
Zimmermann, an attorney in Birmingham, Alabama, co-founded an organization called Shades of Mass, which is designed to promote minority lawyers to leadership roles in mass torts, with Ben Crump, of Ben Crump Law in Tallahassee, Florida. Crump joined her in filing one of the relaxer lawsuits.
In other lawsuits, DiCello Levitt has teamed with Larry Taylor, who oversees the mass torts, criminal, employment and civil rights practice areas of The Cochran Firm in Houston, and Danielle Mason, founding partner of Bullock Ward Mason in Acworth, Georgia.
Mason said she planned to file two more lawsuits this week. She said she and Zimmermann were already investigating hair relaxers for alleged links to uterine fibroids and endometriosis when the study was published.
“Given the wide variety of injuries, we anticipate this litigation will be very extensive, that it will impact about 70% or more of the African American population, particularly its women,” she said.
Mason is one of them.
She said she started using hair relaxers at the age of 8. By age 12, she was diagnosed with ovarian cysts, and then endometriosis. Her first child was born prematurely—another condition linked to hair relaxers. After she had her second child, a decade later, she was gearing up to handle the talcum powder litigation, but her endometriosis symptoms had gotten worse.
“I knew what was going to be expected of me,” she said. “There’s no cure for endometriosis. My only option for permanent relief was a hysterectomy, and I had that 36.”
‘Got My Eye Toward Toxic Products’
The products are sold under various names, including Just for Me, Dark & Lovely, Motions and Optimum Care.
A Revlon spokesperson declined to comment, and a L’Oréal representative did not respond. Other companies named in the lawsuits are Strength of Nature Global, Dabur USA, Namaste Laboratories and Softsheen-Carson. Representatives of those companies either could not be reached or did not respond to a request for comment.
The lawsuits are the latest brought on behalf of Black women alleging they were harmed by defective consumer products. Many of the ovarian cancer lawsuits against Johnson & Johnson about its baby powder involved Black women, who were frequent customers and specifically targeted with the product’s marketing.
“I was the only woman, and only person of color, who tried talc powder cases against J&J over ovarian cancer,” Mason said. “Obviously, that was what got my eye toward toxic products and those that are prevalent in the Black community.”
This month’s study was based on data that sought to identify risk factors for breast cancer. Of the 33,497 women in that study, who ranged in age from 35 to 74, 378 got uterine cancer during an 11-year period.
The lawsuits allege the relaxers contain compounds, such as phthalates, which are “endocrine disrupting chemicals” that cause conditions such as endometriosis, uterine fibroids and preterm deliveries.
The lawsuits also add to a spate of health risk claims focused on hair care products.
Last year, Procter & Gamble recalled its Pantene dry shampoo for containing dangerous levels of benzene. And, in 2018, lawsuits were filed over Monat hair care products, which consumers alleged had toxic chemicals in them that caused hair loss, balding and other problems.
Black hair has been the subject of potential legislation, including the CROWN Act of 2021, a bill that would protect women of color from discrimination based on their hair styles.
“These issues about hair texture and attractiveness and assimilation in this way was leveraged by the companies that we named as defendants,” Zimmermann said, “to sell a product as we alleged they knew was dangerous.”
63-year old Bart Gasco recounted his experiences from decades ago at the Holy Childhood of Jesus boarding school in Harbor Springs, Mich.
As he spoke in front of hundreds of people assembled in the gymnasium of Pellston High School, Gasco spoke openly for the very first time about trauma he endured at the northern Michigan boarding school, which was part of the federal government’s policy to assimilate Native American children.
“These are not stories that I have even shared with my own three children,” he said. “Until today.”
Holy Childhood was an Indian boarding school 18 miles from Pellston on the ancestral lands of the Little Traverse Bay Bands of the Odawa Indians. Gasco attended Holy Childhood more than five decades ago with his sister, Regina “Gina” Gasco-Bentley and his brother, Joe, who is now deceased.
Gasco-Bentley, who is now the tribal chairwoman of the Little Traverse Bay Bands, and another sister, Deleta Smith, stood alongside Gasco at the second stop of "The Road to Healing" tour put together by the U.S. Department of the Interior. The tour is part of the Interior’s effort to recognize the impacts of the federal Indian boarding school system and chart a path forward to deal with the legacy issues, Interior Secretary Deb Haaland (Laguna Pueblo) said earlier this year in announcing the tour.
Haaland was among the crowd who heard Gasco’s stories, as was Assistant Secretary of the Interior for Indian Affairs Bryan Newland (Bay Mills Indian Community).
At the end of his testimony, Gasco turned over the 10-page document to a representative of the U.S. Department of the Interior to become part of the official record.
In his testimony, Gasco recounted several traumatic memories that plague him still today. These are memories of abuse, mistreatment, and assimilation.
“Another memory I unfortunately get to think about, are my playground memories. We were boys! We of course had it in us to be rough and tumble from time to time, but if I was caught arguing or fighting with a fellow boarder, we were taken inside, split apart and punished. The punishment I most remember for that, I was taken into my sleeping hall, and paddled with a wire hairbrush. And not just a quick pat on the behind for an attention getter…more of a beating than a paddling.”
The goal of Indian boarding schools was to “kill the Indian and save the man.” These schools were not schools, but merely an environment for the federal government’s assimilationist policies. Gasco recalls the moment he realized the truth of the school he attended.
“As I looked around the hall and dining rooms, seeing the other faces I can recall; we all looked similar! We all had dark hair, skin and eyes, and we were all Native children. The goal that we were constantly preached at during the week, is that we were learning how to transition away from being Native American, and we were being taught how to be white.
“We were to never speak in our Native language again, never sing or dance to the music our grandparents had. And so on. I was young enough that I was not versed or taught many of those traditions yet anyway, so unfortunately it was very easy for them to work on the goal of killing the Indian in me and saving the white man.”
Gasco’s complete testimony is being shared below:
Hello there! My name is Bart Gasco; I am a Catholic boarding school survivor, and this is my story.
Let me take you back to what was supposed to be the happiest and most carefree times in our lives…our childhoods. I will admit, to grow up with a semi-normal attitude and trying to make the most of life, I have blocked so many of those years out. My kindergarten and 1st grade years of life were not those you read about in a fairy tale. They were more like a real-life horror movie; and all being filmed in Harbor Springs, Michigan for me!
I am number 10 of 11 children, but for some reason, only three of us were taken and forced into a boarding school situation.
I came home from school in kindergarten to one of my sisters, a brother of mine, and me…all being loaded into a car, and only one bag for each of us with the absolute, bare minimum to live with. We were driven to the Holy Childhood Boarding School in Harbor Springs, where we would live for who knew how long. Taken from all of our other siblings, and once we arrived, split from the only familiar faces we knew when we were that young. I was five years old, and placed in the sleeping halls with other native boys my age, and from what I can remember, there were approximately 30-40 boys all in one hall, with the beds arranged in rows. We were assigned to the hall with Sister Diane Marie, and her room was up front in the hall, but still attached to keep us under her watch.
We were taught that first thing in the morning, our bed was to be made, military style, and if those corners were not just right, sister Diane Marie would walk by and destroy it. Something that I, as a 5-year-old, worked hard on. Ripped apart, and told to start over. After making our beds in the morning we were instructed to get dressed… but we didn’t dare sit on that freshly made bed, out of fear of a wrinkle or untucking. We were forced to sit on the cold, tiled, hall floors, to do all of our dressing. For some reason that is still unclear to me, we were told that we were not allowed to wear underwear when we went to bed. Just our pajamas. So, you can imagine the cold floor even more so on your bare skin, as a 5-year-old struggles one leg or foot after another.
Not getting dressed fast enough, because as I mentioned… we all know how it can take a 5-year-old sometime… Sister Diane made sure we moved at a faster pace or else the abuse and neglect would begin, even before breakfast.
Once we were down for breakfast, lunch or dinner we stood at attention waiting for others to file in. We definitely were not able to utilize it as a social event. You were there for one reason, and that was to eat, and get done as fast as possible at that.The dining hall was one large room and you would see other groups file in, but you don’t dare get caught looking up, making eye contact or even remotely attempting to talk to anyone else. Sometimes those meal times were the only times during the day that I was allowed to see the faces of my brother and sister. Punishment though for talking and not eating… you get your next meal skipped.
School was every day, Monday through Friday, and of course Sunday School. Although, if you were caught acting up, or a punishment for something, you then got to go to school on Saturday too. On Saturdays, our families were allowed to come visit, and occasionally take us out for a picnic or other family visit in the community. But as mentioned, if you act up, not only did you get the punishment during the event…but your Saturday family day was then withheld from you. I can recall one Saturday that I was not allowed my family time. Sitting by the window I watched my oldest sister come pick up my two siblings that were there with me, and take them for the day. What was it that I did that warranted an extra school day you wonder? I colored my finger nails with a pencil. Something that was so innocent that I think every kid does at some point in their lives… and I was punished for it. Not only that weekend did I miss my family time… but in the moment, I was slapped with a ruler across the hands. And it wasn’t just a quick slap, or even with the flat side of the ruler… It was the sharp edge of it. How many times? One for each finger that had coloring on it! And if I cried, like you would expect a 5-year-old to cry in pain… the counting would start over, and it would be harder this time.
“Suck it up and deal with it!” I was told. “You made this choice and it's because you’re a naughty boy that you’re getting this.
This is all your fault.”
Another memory I unfortunately get to think about, are my playground memories. We were boys! We of course had it in us to be rough and tumble from time to time. But if I was caught arguing or fighting with a fellow boarder… we were taken inside, split apart and punished. The Punishment I most remember for that, I was taken into my sleeping hall, and paddled with a Wire Hair Brush. And not just a quick pat on the behind for an attention getter… more of a beating than a paddling. Then as further punishment… the other boy and I were made to scrub three flights of stairs, starting between the rungs on the banister, the steps, and the approaches… and only stopping once we hit the ground floor. The tools used to clean those three flights of stairs… a toothbrush and a bucket.
As I looked around the hall and dining rooms, seeing the other faces I can recall; we all looked similar! We all had dark hair, skin and eyes, and we were all Native children. The goal that we were constantly preached at during the week, is that we were learning how to transition away from being Native American, and we were being taught how to be white. We were to never speak in our native language again, never sing or dance to the music our grandparents had. And so on. I was young enough that I was not versed or taught many of those traditions yet anyway, so unfortunately it was very easy for them to work on the goal of Killing the Indian in me and saving the white man.
Some time has passed, and the end of the school year is approaching. Kids are packing and getting ready to go home for the summer. My sister Regina, my brother Joe, and myself were finally able to go home. But we would soon be returned for another school year. Our mother had received the help she needed in that first year we were gone, but for some reason still did not want us three back in her life or to worry about us during the school year. Taken from home again, and returned to the hands and the mercy of the church.
My total time there was two years.
I share this little glimpse into my life, not to try and relive it, or even to seek the pity of those listening. But as a way to share the light onto this chapter in my life that I thought would never be spoken about. That there would never be many people that even cared. There are two years of my childhood that were supposed to be carefree and I was supposed to be allowed to be a kid… those young, impressionable years instead are dark, and something that I do not wish upon even my worst enemy. To show how these years have been blocked… these are not stories that I have even shared with my own three children, until today. I stand here with the support of my daughter, my wife, and my sister, finally feeling like someone is listening. 50 plus years later, I know that I will never get year 5 and 6 back of my life… but I am hopeful that we might get the love and support that I was missing in my childhood, and we as a nation will come out stronger in spite of the Catholic Church and the horrible things, they were able to do to us.
I share with you today and can stand tall with the help of my family, and say the Catholic white people didn’t get all my spirit!
I am a NATIVE AMERICAN boarding school survivor! Thank you!
Rikers' Island was designed to hold people accused of crimes less than a year. Why have some detainees been there for six, eight and even 10 years?
The last time these detainees awaiting trial were free, Eli Manning was quarterback for the Giants, Bill de Blasio was in the middle of his first mayoral term, and Donald Trump was just taking office as president.
This isn’t supposed to happen.
Rikers, and the city’s other jails, are designed to be a temporary holding spot for people awaiting trial or convicted of crimes with a sentence of a year or less.
But several men have been on Rikers Island and in other city Department of Correction jails as their criminal cases snake their way through the court system for years — in one case a decade and counting — according to a list of the longest-serving detainees in city custody.
What’s more, the roster of criminal court cases pending for years comes as the city jail population has gone up to pre-pandemic levels. There were 5,688 people in custody as of Aug. 16, according to city records. That’s up from less than 4,000 during the peak of the pandemic, which was the lowest total since 1946.
The average length of stay in DOC custody has steadily gone up over the past three years, records posted online show. The average number was 125 days as of July this year, up from 105 in 2021, 90 in 2020, and 82 in 2019. Those figures include people who were in and out of custody within one day.
“Many individuals have remained in DOC custody for substantially longer than they otherwise would have,” read the preliminary fiscal year 2022 Mayor’s Management Report, which was released in October.
“Data shows that the longer one remains in custody, the greater the likelihood that they will be involved in a violent incident,” the report states.
The Sixth Amendment of the U.S. Constitution guarantees people’s rights to a “speedy and public trial.” The state of New York has its own speedy trial laws that apply in different ways based on the types of charges.
But exceptions are made for a host of trial adjournments and other frequent delays.
Some cases drag on for years for reasons such as defendants repeatedly changing their lawyers, verdicts overturned on appeal, and prosecutors seeking extensive delays, records show.
That was the case with the longest serving pre-trial detainee who was slashed at some point since he was first locked up on Oct. 27, 2012, according to a jail official familiar with his case.
His name is withheld for safety reasons.
Shortly after his arrest 10 years ago, the man pled guilty to a felony murder charge related to a robbery he allegedly orchestrated that ended in a homicide, records show. He agreed to testify against two other men involved in the robbery and murder, according to his lawyer.
But he has not been formally convicted or sentenced as police hunted down two other people involved in the crime. One co-defendant was recently nabbed out of the country and is currently awaiting trial — now also at Rikers.
Inmate advocates and criminal justice reformers contend the city needs to drastically reduce the number of people held before their trials. Thirteen detainees have died in Rikers and other city lockups this year, after 16 deaths in 2021, the highest total in decades.
City officials previously had regular meetings with the representatives of the city’s five district attorneys and court honchos to discuss the long-stalled court cases, according to former staffers at the Mayor’s Office of Criminal Justice.
That was part of the so-called Justice Reboot launched in April 2015.
“We put together teams that consisted of the chief presiding judge in every borough, the DAs, the defenders, correction, and the police department,” recalled former MOCJ executive director Elizabeth Glazer.
The teams figured out the delays were due to everything from a lack of licensed drivers to get people from jail to court to a lack of space in the Bronx courthouse for lawyers to meet with their clients, she added.
“All kinds of technical things,” said Glazer, the co-founder of VitalCityNYC. “These huge teams would try to resolve the operation problems.”
Another effort was focused on the people incarcerated and why they were locked up, she said. “We called it Jail Stat,” she said. “That existing structure was used starting in the pandemic to review every single case to see who could be released.”
Representatives at the Department of Correction and City Hall declined repeated requests for comment.
The Mayor’s Office of Criminal Justice still regularly meets with representatives from the DA offices every Tuesday, but the Justice Reboot program doesn’t currently exist as initially launched, said MOCJ spokesperson Maggie Halley. They also meet with the five individual DAs each month, she added.
Back and Forth
Locked up for eight years, Dr. Keith Howard, who is facing a second-degree murder charge, is the second-longest-serving detainee on Rikers, records show.
He’s been held without bail since May 14, 2014, when authorities charged him with killing his tenant, Karla Shah-Boguwolski, 39, in Arverne, Queens, days before superstorm Sandy. He initially fled to Maryland after the murder, according to the Queens District Attorney’s office.
In 2017, his trial ended in a hung jury. A second trial in 2019 resulted in a mistrial due to jurors’ scheduling conflicts. Howard has also changed lawyers multiple times, court records show.
Howard, a former psychiatrist now in his 60s, has long maintained his innocence.
The third trial is scheduled for the fall.
“At this time, the People stand at the ready to proceed with trying the defendant…and have abided by the request of his new defense counsel to push the start of the trial to the fall to accommodate her heavy trial schedule,” said Queens DA spokesperson Meris Campbell.
The calls to decarcerate also come as a growing number of activists and jail experts call for the federal judge overseeing a class action lawsuit against the Department of Correction to appoint a receiver who would be given total autonomy to run the agency.
Bernard Gumbs, also known as Thomas Williams, has been in Rikers awaiting a new trial since Oct. 21, 2016, making him the third-longest-serving city detainee.
On March 8, 2013, a jury convicted him of second-degree murder and he was later sentenced to 20 years to life. But in 2016, an appeals panel overturned the verdict and ordered a new trial, saying the lower court “erred in admitting, as dying declarations, the victim’s statements implicating defendants.”
Antonio Robinson has been locked up facing a first-degree murder charge since Oct. 2, 2016, making him the fourth-longest-held detainee, records show. Rounding out the top five, James Seabrook, held on a criminal possession of a weapon charge, has been behind bars since May 7, 2016, records show. They are both awaiting trial.
“It’s widely recognized that Rikers Island is unfit for human habitation even for short periods of time,” said longtime defense attorney Ron Kuby. “For people to spend years awaiting trial is unimaginable.”
The US Navy said 'traces' of jet fuel were found in the water on the aircraft carrier USS Nimitz. A sailor says the problem was way worse.
The US Navy acknowledged recently that the water the crew of the aircraft carrier USS Nimitz uses to bathe and drink was contaminated by what it described as "traces" of jet fuel, but a sailor on the ship said the situation was worse than the service first let on.
The crew learned about two weeks ago that the water supply had a problem. Specifically, the water had become a troublingly discolored fluid with a bad smell, a sailor said. Testing found what the Navy said were "detectable traces" of hydrocarbons, a chemical component of jet fuel.
In a recent interview with Insider, a sailor aboard the ship described a situation that appears to be far worse than what was initially indicated by the Navy.
"We were exposed to an unhealthy amount of JP-5," the Nimitz sailor, whose identity is known to Insider but is being withheld due to concerns about the possibility of retribution, said this week. JP-5, or jet-propellant-5, is a kerosene-based fuel that is used in military aircraft and is a go-to for the Navy's carrier air wings.
The sailor explained that although they and their shipmates drank and showered with the contaminated water, they were initially denied medical attention for issues that were believed to be related to their exposure to jet fuel.
After earlier Navy assurances there had been no ill effects, a spokesman for 3rd Fleet told Insider on Friday that five sailors have reported health issues that could be related to the contamination and that the ship's leadership is monitoring the situation. In an overnight update, Insider was informed the number has since risen to 10.
Cmdr. Sean Robertson, a fleet spokesperson, told Insider on Friday that "if we receive any additional reports of potentially contaminated water, we will immediately investigate and take appropriate action to safeguard the crew." The parents of the sailor Insider spoke with said at that time that the carrier's medical team was still turning away some sailors.
Discovering jet fuel in the water
The sailor said they were first informed there was jet fuel in the water on the evening of September 16. A Navy spokesperson confirmed this date to Task & Purpose, one of the outlets that along with Navy Times first reported on the problem, and said that the crew "immediately took action."
The sailor said that the ship's commanding officer announced to the ship that night that jet fuel had been discovered in the water, stressing that the crew of roughly 3,000 should not drink it and that they should drink only distributed bottled water until they returned to port.
The sailor said that later that night, however, they were told by the ship's executive officer and the commanding officer that the water was actually safe to drink and that there was nothing to worry about.
"It was not safe to drink," the sailor said. "People believed the CO and XO, and people were showering in this stuff."
On the morning of September 17, the aircraft carrier arrived at San Diego's Naval Air Station North Island, and by noon, the carrier was connected to the local water supply. It wasn't until that point that the Nimitz leadership reversed course again and said the water was actually unsafe to drink and shower in, the sailor said.
Throughout the night and through the morning, people were under the impression that the water was safe, despite indications that it wasn't, the sailor said.
"Medical was refusing to see patients or acknowledge that anything going on with patients or different sailors had anything related to the JP-5," the sailor said, adding that medical staff "refused" to note the JP-5 exposure in sailors' records.
The Nimitz sailor said that one fellow service member was throwing up while another had a rash. In a separate interview with Insider, the sailor's parents — whose identities are also known to Insider but are being withheld to protect the sailor — said they noticed their sailor had developed a dry cough after the exposure.
"Medical was telling us that it'll just pass through you," the sailor said. They said that after reviewing a safety data sheet, which has information about hazardous chemicals, and cross-referencing their jet fuel exposure, it was clear they should seek medical attention.
Testing the water
The sailor explained that when the ship's water tanks were opened for inspection late on September 17, a "thick layer of JP-5 on top of the potable water" was found. The next step was trying to flush the jet fuel out of the system.
They said that starting the next day on September 18, crewmembers began conducting taste- and smell-tests of the ship's water — a process that continued for at least the following 10 days and something the sailor described as a "big concern."
Though Cmdr. Robertson did not say anything about taste testing, he did tell Insider that a "sniffer team" of Nimitz sailors has been tasked with checking out "hot spots," areas with concerning odors.
The process described by the sailor involved filling and then dumping the water tanks and then sampling the water for jet fuel. In draining the tank, however, they frequently spotted the fuel leaving residue along the sides of the tank.
"So basically what we're doing is draining the water out, filling it back up, and letting the JP-5 coat the sides of the tank," the sailor said.
By September 21, the water on the carrier had been laboratory-tested twice.
A Navy official told Insider that an initial test of water samples from September 19 did not "detect measurable amounts of fuel hydrocarbons." The official said more testing on water samples from the Nimitz's potable water tanks on September 21, however, did reveal "detectable traces of hydrocarbons." The Navy did not disclose the specific amount detected.
But the sailor rejected the notion that there were only "traces" of jet fuel, pointing to the "thick layer" of fuel they saw on top of the water in samples.
The aircraft carrier was supposed to depart San Diego late last week, but it ended up staying in port. The sailor speculated that this may have been because of media coverage and attention, which they said is what initially triggered the laboratory tests — not the crew's suspicion that there was still jet fuel in the water.
To highlight the visible impact of the jet fuel contaminating the water, the sailor's family provided Insider with a screenshot of a text exchange between the parents and the sailor
In the exchange is a photograph, shared with the sailor by a shipmate. The photo was taken shortly after it was first announced that there was jet fuel in the water, the sailor said, and appears to show a water sample — drawn from a water fountain — consisting of a thick, green, layer on the top and a murky, white layer on the bottom.
Working through the aftermath
The sailor said that as of this week, some of their fellow Navy sailors were still drinking and showering with the contaminated water because "we don't have much of another option."
The shore water looks clear and has gotten better, they said, but the smell and taste of jet fuel still lingers, as residual amounts continue to stick to the water tanks and piping.
"So the only way we can get all the contamination out of the tank is by completely draining it and scrubbing it, because the way JP-5 sticks to metal," the sailor said.
Cmdr. Robertson told Insider in an email on Friday that the potable water system on the Nimitz continues to be evaluated so sailors get the "highest quality water" when the ship eventually leaves San Diego.
"The health and well-being of all of our Sailors is our top priority," he added. "To that end, Nimitz leadership encourages the crew daily to report to medical immediately if they exhibit any illness or injury that could potentially be caused by exposure to contaminated water."
As of Friday, Robertson said, 10 sailors have reported health issues that "could be associated with JP-5 ingestion, with no new reports in the last 24 hours."
He said symptoms — which include headache, diarrhea, and rashes — were present between September 17 and September 26. None of those individuals are "currently reporting any symptoms that might be associated with JP-5 ingestion," he said.
The parents of the sailor with which Insider spoke said in a separate interview that they have been reaching out to various lawmakers to try and voice their concerns, but they haven't had much luck getting responses.
"Serving this country is a privilege," one parent said. "But in return, I expect the leadership to support the soldiers and the sailors and to take care of them."
A group of Jackson, Mississippi, residents has hit public officials and engineering firms with a federal proposed class action over a water treatment plant shutdown last month that left more than 150,000 without access to clean water in the mostly Black city.Four residents who say their lead poisoning, E. coli, dehydration or other ailments were due to flaws and failures in the city's water system are leading the suit, filed in Mississippi federal court on Friday, which accuses the city of violating 14th Amendment protections for bodily integrity.
Officials on Thursday lifted a boil-water advisory that had been in place for Jackson residents since late July. When the city's largest water treatment plant failed in August, Gov. Tate Reeves declared a state of emergency and called in the Mississippi National Guard to distribute more than 11 million bottles of water to residents. Jackson is 82% Black, and nearly a quarter of its residents live in poverty.
"It has been years since Jackson residents have had access to clean, safe water free of contaminants," said Mark Chalos of Lieff Cabraser Heimann & Bernstein LLP, who represents the residents. "Families, children, sick people and students in schools have been exposed to water that's unsafe to consume."
The suit seeks to represent a class of anyone exposed to the city's water system since Jan. 1, 2009.
The lawsuit does not name state officials as defendants, although Chalos said counsel are still investigating.
The suit seeks to force the city to replace and repair lead pipes and other flawed infrastructure, deliver safe water to residents until problems are resolved and stop charging residents for using contaminated water, in addition to damages.
The lawsuit names the city of Jackson, Mayor Chokwe A. Lumumba; former Mayor Tony Yarber; and three former directors of public works, Kishia Powell, Robert Miller and Jerriot Smash. The complaint also accuses engineers Siemens Corp., Siemens Industry Inc. and Trilogy Engineering Services LLC of negligence for their work on the city's water system.
The city of Jackson declined to comment on the lawsuit Monday. Representatives for the defendants could not be reached for comment.
The plaintiffs are residents who have relied on the city's water system for daily life and suffer a range of problems such as headaches.
One plaintiff, Priscilla Sterling, a high school teacher, and her family used Jackson's water for years. Several of her children have lead poisoning, and the family routinely has episodes of unexplained itching and other problems, according to the suit.
State and federal authorities have long questioned the safety of Jackson's antiquated water system. Cast iron water pipes running under the city's streets have a band of lead every 20 feet, which can cause a range of health problems, particularly among children, the suit says.
Jackson's water is acidic, corroding pipes and causing lead to leach into the water, according to the suit. Runoff contamination from the state's active surface mining industry likely contributes to acidity in the city's water sources, it says.
Another suit against the city and top officials for exposing residents to lead contamination came in October. Among other claims, that suit says city officials in 2014 switched from well water to surface water in the Pearl River and Ross Barnett Reservoir as a quick fix that worsened the lead problem.
Friday's lawsuit claims Jackson's water system has violated the Safe Drinking Water Act and federal limits on lead and copper for years. As recently as 2020, the Environmental Protection Agency identified a risk of E. coli, cryptosporidium and giardia contamination in the city's water.
By the time the main water pumps at the city's main facility, the O.B. Curtis Water Treatment Plant, failed in July, the plant had had decaying equipment for years that left it "structurally fragile," according to the lawsuit. Poor monitoring systems and underqualified, inadequate staff contributed to the system's problems, the plaintiffs claim.
The EPA cited the city for failing to maintain a monitoring system for three years because it had not hired a technician to work on the equipment during that time, the residents argue.
As of June 29, 2021, Jackson employed only two full-time operators and one part-time staffer at its Curtis plant, and five full-time staff members at a second city plant — compared with a total staff of about 12 in previous years, according to the suit.
With the main pumps at the Curtis plant offline, the city switched to a backup pump that had many of the same problems, according to the suit. On Aug. 29, the pump failed, leaving the entire city without running water.
On Thursday, city officials said they had restored water pressure to the Curtis plant and had lifted the boil water notice issued in July.
But officials said the city was still seeing "isolated reports" of discolored water or poor water pressure. The city noted a team of emergency operators, mechanics and technicians from South Carolina, Michigan, Maryland and Ohio were staffing city water plants.
City Leaders Knew of Problems, Suit Says
City leaders were aware for years that acidity in the water was causing lead contamination, but failed to address the problem, the residents argue.
Officials, for instance, have issued numerous boil water notices to residents since 2016. Boiling water, however, simply concentrates contamination, because lead does not boil off. The suit calls the strategy "dangerously ignorant."
State testing in 2015 had found 13 of 58 homes sampled in Jackson had lead levels above federal limits, a proportion higher than the homes with notorious too-high lead levels in Flint, Michigan, at the time.
Although state officials did not tell the public about their findings, city officials knew about the results, according to the lawsuit.
In January 2016, Powell, the former public works director, told the public that the test results showed the city's water was safe and that Jackson wasn't violating the Safe Drinking Water Act, the residents argue.
"We are nowhere near the levels seen in Flint," Powell said at the time, a statement the residents argue was false. Yarber, likewise, told the public, "We're not Flint," the suit says.
Even so, the Mississippi State Department of Health in February 2016 required Jackson to develop a plan to address its violations of the Lead and Copper Rule, a federal limit on the amount of lead and copper allowed in public drinking water.
At the same time, testing at one home in Jackson found a lead level 30 times the EPA's limits. Other homes also produced lead levels far higher than federal standards, according to the suit.
After a city engineer-in-training in February 2016 found lead materials in city infrastructure during a water replacement job, he told a local reporter about his findings. Previously, the city had blamed lead in the water on poor infrastructure in individual homes.
After a local newspaper reported the engineer's story, Powell fired him for "possibly creating unwarranted public fear," according to the lawsuit.
The lawsuit argues public officials would go on to deny the city had a problem with lead for years, with another public works director, Miller, telling the public in 2018 that the city's water was safe to drink.
In March 2020, the EPA issued an order identifying problems with the water system that presented an "imminent and substantial" danger to residents who relied on city water. The order identified a range of problems with the water system, including a monitoring system that hadn't worked in years.
The city, however, didn't disclose the results of the order to the public until a year later, the residents argue.
Attempted Fixes Made Things Worse
The lawsuit also accuses Trilogy Engineering Services of making problems with the city's water system worse when it was hired to develop a plan for lead and copper contamination.
In response to a state mandate to fix its lead problem, the Jackson City Council in April 2016 approved a $291,989 contract with Trilogy to draw up solutions.
According to the lawsuit, Thessalonian LeBlanc, a part owner of the firm, held an undisclosed fundraiser for Yarber, who was running for mayor, in 2014. Reached by phone Monday, LeBlanc called the allegation "foolishness."
She told Law360 that Philip Gibson, a former part owner and chief engineer at the firm, was responsible for the water system's failure." That's where the focus should be," she said.
Gibson now works at another engineering firm, Neel-Schaffer Inc., managing its Central Mississippi Water/Wastewater division. He joined Neel-Schaffer in 2018, according to the company's website. He did not respond to messages seeking comment.
At the time, the city was using lime powder to prevent corrosion in underground pipes, which caused "persistent clogging," to an extent that Jackson used above-ground hoses to transport water. The city's water system was designed for liquid lime, not powdered lime, according to the suit.
Gibson suggested the city could use another material, soda ash, to make the water less acidic as it left treatment plants and prevent corrosion. The city ultimately adopted Gibson's recommendation.
In 2018, however, the city learned using soda ash led to even more problems. The material, when combined with Mississippi's high humidity, formed "rock-like clumps" that the water system couldn't process.
"Trilogy knew or should have known that soda ash would likely clump and clog the pipes and pumps, thereby jamming the feed and rendering the corrosion control method essentially inoperative and non-functional," the lawsuit says.
A No-Bid Contract in the Spotlight
The complaint traces many of the problems with the city's water system to a 2013 no-bid contract with engineering firm Siemens.
In 2010, Siemens urged the city to hire it to fix the water system, promising $120 million in "guaranteed savings" with "no risk."
The city in 2013 ultimately approved a $94.5 million bond measure to hire the company — a contract that would cost the city more than $200 million through 2041 with interest. The lawsuit accuses Siemens of manipulating city officials to get the contract without going through a competitive bidding process.
Siemens did not respond to messages seeking comment.
The company claimed installing a network of 20,000 water sensors would improve the city's ability to monitor water usage and increase its fee revenue. Instead, Siemens installed the sensors incorrectly and failed to properly pair them with a new billing system. The suit accuses the company of concealing and failing to fix the problems with the sensors.
Siemens also hired a series of "sham contractors" to work on the water system that disguised the work actually being performed and concealed the company's failure to comply with city requirements to hire minority-owned contractors, according to the suit.
Ultimately, Siemens' work prevented the city from properly charging for water service, depriving the system of $175 million in revenue. The lost revenue destroyed the city's credit rating and frustrated its ability to operate the system and finance new projects.
Jackson in 2020 reached a $90 million settlement with Siemens over its performance on the project. But after attorney fees and other expenses, the settlement didn't leave the city with enough money to repair the damage the company caused to its water network, the suit argues.
The plaintiffs are represented by Robert L. Gibbs of Gibbs Travis PLLC, Mark P. Chalos of Lieff Cabraser Heimann & Bernstein LLP, Stuart C. Talley of Kershaw Talley Barlow PC, and Larry Moffett of the Law Office of Larry D. Moffett PLLC.
Counsel information for the defendants was not immediately available.
The case is Sterling et al. v. Jackson, Mississippi et al., case number 3:22-cv-00531, in the U.S. District Court for the Southern District of Mississippi.
"The only certainty of this litigation is it's going to be a big fight, and a long fight," said Matthew Bergman, founding attorney of the Social Media Victims Law Center.
Social media platforms such as Facebook, Instagram and TikTok are facing an onslaught of lawsuits alleging they cause mental health problems in teens, from eating disorders to suicide attempts.
Law.com Radar, which recently rolled out new analytic and trend-detection systems, surfaced eight lawsuits of this type in the first week of August. It found more than 30 cases since the start of June.
Some law firms are aggressively seeking new cases. Orlando, Florida-based Morgan & Morgan, for instance, is running ads on Google headlined, “Why Social Media Can Be Dangerous for Your Child.”
“Parents are saying enough is enough,” said Matthew Bergman, founding attorney of the Social Media Victims Law Center. “Frances Haugen’s revelations combined with the surgeon general’s report on teen mental health has made clear that social media products are dangerous and are harming our kids.”
Bergman is among the attorneys bringing several of the lawsuits, including one targeting ByteDance, creator of the popular social app TikTok. That suit alleges ByteDance intentionally built in addictive qualities with teens in mind.
The potential mental health risks of social media splashed into the headlines last year after Haugen, a former data engineer for Facebook parent Meta, leaked internal company documents showing the company’s own research found its Instagram service harmed the mental health of some young people.
U.S. Surgeon General Dr. Vivek Murthy highlighted similar concerns in a report last year and in public comments. In an interview with NPR in December, he said, “Right now, we’re conducting this national experiment on our kids with social media. And it’s worrisome to me as a parent.”
Social media companies have not yet responded to the latest batch of suits, and they did not respond to requests for comment. However, in response to criticism of its Instagram service, Meta has said, “We continue to build new features to help people who might be dealing with negative social comparisons or body image issues.”
The companies also believe they have a legal shield of sorts via Section 230 of the Communications Decency Act, which protects internet companies from being liable for content created by their users.
Typical of the mental health lawsuits is one filed in January by Tammy Rodriguez in the Northern District of California against Meta and Snap Inc., parent of Snapchat. It says her daughter, 11-year-old Selene Rodriguez, became addicted to social media, particularly Instagram, and eventually took her own life.
The suit alleges the companies designed the platforms to “promote problematic and excessive use that they know is indicative of addictive and self-destructive use.”
Meta responded to the suit by stating that it simply provides services and tools for users to publish their own content, and that none of the services and tools used are illegal themselves.
“Selena’s death is a tragedy, and Meta deeply sympathizes with Plaintiff and her family,” Meta wrote in its June motion to dismiss the suit. “But the First Amendment prohibits forcing a communications platform to adopt or enforce particular content policies or practices.”
Jim Wagstaffe, who is among the attorneys bringing a separate lawsuit against Instagram, said pushback is growing in Congress against the protections that Section 230 affords social medial companies.
Just as the First Amendment doesn’t protect newspapers from libel prosecution, some lawmakers are coming around to the idea that Section 230 doesn’t protect social media companies from product liability, he said.
But David Anderson, a retired law professor at the University of Texas School of Law, told the Texas Tribune last year that outright repealing Section 230 would spell the end of social media sites altogether.
“In my opinion, Sec. 230 definitely needs to be limited, but how to do that without killing a lot of useful communication is very difficult,” he told the publication in an email. “It would require some extensive hearings, careful drafting, and contentious trade-offs.”
The Information Technology and Innovation Foundation argues that any solution requiring social media platforms to review content is unworkable because of the massive volume of content on the sites.
Also complicating the issue is that Republicans and Democrats want to replace Section 230 with diametrically opposed frameworks, Mark Lemley, a Stanford Law School professor, told The Texas Tribune.
“Democrats want more content moderation targeting hate speech and misinformation. Republicans want to apply the First Amendment to social media sites even if they are private actors,” he said.
Meanwhile, lawsuits continue to pile up. Eventual rulings in the cases will shed light on how much of a shield Section 230 will prove to be for social media companies.
“The only certainty of this litigation is it’s going to be a big fight, and a long fight,” Bergman said. “To paraphrase Thomas Hobbes, it’s going to be nasty, brutish—and long.”
Lawmakers who participated in the 2021 siege of the U.S. Capitol may be ineligible for reelection under the Fourteenth Amendment's bar on rebels holding office, the Fourth Circuit said Tuesday in the latest blow to controversial North Carolina Rep. Madison Cawthorn, who recently lost his primary to a challenger.
The appellate judges were careful to clarify that they had "no opinion about whether Representative Cawthorn in fact engaged in insurrection or rebellion or is otherwise qualified to serve in Congress," and also hadn't considered whether states could regulate who could be on the ballot. They only took on the narrow basis of the appeal — whether a 150-year-old law allowing Civil War secessionists to run for office applied in the present day.
The case stems from an effort by several voters in Cawthorn's district to challenge his candidacy by alleging that the Republican congressman was no longer qualified to hold office because of his involvement in the Capitol riot on Jan. 6, 2021.
Many rioters had attended then-President Donald Trump's "Stop the Steal" rally earlier in the day, where Cawthorn fired up the crowd with unsubstantiated claims of election fraud. That, his constituents told North Carolina's election board, rendered him ineligible for office thanks to the Fourteenth Amendment's bar on candidates who "have engaged in insurrection or rebellion."
In an attempt to head off the challenge, Cawthorn sued election officials in federal court. He sought an injunction on an upcoming administrative hearing, arguing the proceeding would violate his First Amendment right to run for office, his due process protections, Congress' discretion to police the qualifications of its members, and a Reconstruction Era law that allowed former Confederates to run for office.
That law, the 1872 Amnesty Act — which lifted the constitutional ban for most former members of the Confederacy only four years after the Fourteenth Amendment passed — was the basis on which a lower court judge granted Cawthorn's injunction bid in March.
And so at the heart of the appeal was whether the Amnesty Act also applied to future insurrectionists, U.S. Circuit Judge Toby Heytens said in Tuesday's order, adding that, "To ask such a question is nearly to answer it."
"Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment's eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment," he wrote.
Tuesday's decision marked another loss for the first-term congressman. Last week, early numbers indicated he had lost his primary reelection contest to a challenger. During his two-year term, he has also faced allegations of sexual assault, been in hot water with the Republican establishment over his claims his colleagues invited him to orgies and used cocaine, and tried to explain away a sexually explicit video that surfaced online.
Cawthorn had attempted to abandon the case, arguing it was moot due to his apparent election loss. But Judge Heytens said the appeal was still live because the primary winner, Chuck Edwards, had not yet been certified. Now, it's up to the district court to decide if the case is moot.
The appeal emerged from a thick "procedural underbrush," Judge Heytens said.
The challenge to Cawthorn's candidacy was complicated by a dispute over North Carolina's newly redrawn congressional district, but once the maps were drawn again, a new group of voters filed an identical challenge to his qualifications.
Both groups of voters tried to join Cawthorn's lawsuit, and were denied by U.S. District Judge Richard E. Myers II. But the circuit court eventually let the appeal proceed, finding Judge Myers had abused his discretion in not allowing the voters to intervene, and that they had a "personal stake" in the outcome of the case, which the defendants — the elections board members — opted not to pursue further.
The appellate court also faulted the lower court judge for finding Cawthorn had standing to sue thanks to his First Amendment claim, but granted his injunction based on the Amnesty Act. But the judges ultimately found that Cawthorn had standing to sue regardless.
And Judge Heytens found that determining the scope of the Amnesty Act was within the court's purview in spite of its political implications, because the court was not determining whether to "disqualify Representative Cawthorn from future federal or state service," or whether he was qualified to run for reelection.
"Instead," Judge Heytens wrote, "the question before us is: Regardless of whether Section 3 would otherwise disqualify Representative Cawthorn, does the 1872 Amnesty Act nevertheless authorize him to serve?"
He found that it did not, basing his analysis on the intricacies of grammar in the Amnesty Act.
He noted the law's language lifted "political disabilities imposed" by the Fourteenth Amendment, and that the use of the past tense in the word "imposed" "refers to things that have already happened, not those yet to come." The congressman, they noted, hadn't argued "that this elementary rule of conjugation has changed in the last hundred and fifty years," and "ventures no direct rebuttal to this straightforward principle of grammar."
Cawthorn had argued that "imposed" functioned as a participle in that sentence, but Judge Heytens broke out his Webster's Dictionary, noting participles still come "in both 'past' and 'present' varieties." He also pointed out that the law's use of the word "removed" implied that it was "taking away something that already exists rather than forestalling something yet to come."
Nor did the legislation's historical context support the lower court's finding that it was a blanket ban on that provision of the Fourteenth Amendment, Judge Heytens said. The aptly named act was granting amnesty from that provision, but was "laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness," the court found, adding that the fact the law included a carve-out keeping the bar on high-ranking confederates was also noteworthy.
"Having specifically decided to withhold amnesty from the actual Jefferson Davis, the notion that the 1872 Congress simultaneously deemed any future Davis worthy of categorical advance forgiveness seems quite a stretch," Judge Heytens wrote.
The other two judges on the panel wrote lengthy concurrences as well, focusing on whether courts should have gotten involved in the case in the first place.
U.S. Circuit Judge Julius Richardson said he agreed with the decision to nix the lower court's injunction, but he said the problem was not the logic of the ruling, but its very existence. The question of Cawthorn's qualifications for office, he said, was a political question that fell outside a court's jurisdiction. He added that Article I of the Constitution barred a court's jurisdiction over federal lawmakers' qualifications, because "the House of Representatives here is not just a judge, it 'is the sole judge of the qualifications of its members.'"
And, he argued, the Fourteenth Amendment's bar on insurrectionists holding office essentially set a constitutional qualification for lawmakers no different from age or citizenship. That meant that by finding the Amnesty Act applied to Cawthorn, the district court was making an illicit judgment call about his qualifications.
In his concurrence, U.S. Circuit Judge James Wynn Jr. called this a "flawed blueprint for courts to stonewall the reasonable efforts of states to prevent frivolous candidates from running for congressional office." He disagreed that Congress had sole jurisdiction for determining candidate qualifications, noting the Constitution makes no mention of would-be lawmakers. Judge Richardson's reasoning would mean that no state could regulate its candidates or ballot, Judge Wynn said, and the result would flout the Elections Clause, which assigns the "times, places and manner of holding elections" to state legislatures.
"It stands to reason that as a matter of common sense, and as a matter of comity, our Constitution permits States to have a say in regulating the candidates who seek to represent their interests and the interests of their citizens," Judge Wynn wrote.
Free Speech For People, an advocacy group that represented the voters in the appeal, issued a statement saying the ruling would have an impact beyond the Cawthorn case.
"This ruling cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of January 6, 2021 — including Donald Trump — from the consequences of their actions under the Fourteenth Amendment, and provides no basis to block state proceedings seeking to exclude insurrectionists from the ballot," the statement said.
Meanwhile, Cawthorn's attorney, James Bopp, said he couldn't understand why there was any ruling at all.
"The case is moot since the primary," he said in an email. "I am very surprised that the Fourth Circuit issued an opinion on a moot case."
U.S. Circuit Judges Toby Heytens, Julius Richardson and James Wynn Jr. sat on the panel for the Fourth Circuit.
Cawthorn is represented by James Bopp Jr. of the Bopp Law Firm.
The voters are represented by Pressly McAuley Millen of Womble Bond Dickinson LLP.
The case is Madison Cawthorn v. Barbara Lynn Amalfi, case number 22-1251, in the U.S. Court of Appeals for the Fourth Circuit.