Postscript : Justice Is Painfully Slow for Crippled PCB Victim

George Guerin is still a sick man. Poisoned by exposure to PCBs in the early 1980s, Guerin’s list of maladies includes loss of most of his teeth, organic brain damage, a lack of coordination and fits of depression so severe that a UC San Diego professor of psychiatry labeled them “life threatening.”

“Things are about the same,” Guerin, 31, said Friday from his National City home, explaining he still can’t work and that he still visits a doctor twice a week. His medical bills amount to between $20,000 and $30,000.

His legal case is wending its way through the court system on several fronts, but so far he has been unable to legally show that the source of his poisoning was contaminated oil leaking from transformers at the luxurious 21-story Westgate Hotel in downtown San Diego, where he worked for eight years until 1984.

Guerin sued the hotel in February, 1985, for $50 million, claiming that over the course of about three years, he was required to clean up the PCB-contaminated oil with mops, rags, and Kitty Litter while never being provided with protective clothing.

An examination by a toxics specialist at UC San Diego found that the level of PCBs in Guerin’s blood were 300 to 400 times higher than what is normally found in the “background” level of San Diego.

His case received a setback last February when Superior Court Judge Mack Lovett rejected Guerin’s lawsuit, saying that under the California Labor Code, Guerin had no right to sue his employer and that his only remedy was through the workers compensation system--which provides benefits to disabled workers, benefits Guerin has yet to receive.

Richard Tentler, Guerin’s Santa Barbara-based lawyer, sought to use an exception in the law created as a result of the Johns Manville Product Corp. case.

That company was the focus of highly publicized lawsuits filed by former employees who became ill with asbestosis after years of inhaling asbestos fibers while on the job. The former employees were eventually allowed to sue the company rather than rely on the workers compensation system because it was shown that the company had known about the asbestos hazard for years but had hid that fact from its employees, Tentler said.

Guerin’s lawsuit tried to show that the Westgate Hotel had known about the PCB contamination for years but had done nothing about it. But in rejecting that argument, Lovett said Guerin’s suit had “not met the test of Johns Manville.”

“He didn’t have the right to sue his employer because the California Labor Code doesn’t allow it,” said Richard Messer, the San Diego attorney who represents the hotel. In court documents, Messer said the owners and managers of the hotel had only “casual and vague information about the effects of PCB on animals” and had nothing to hide.

The legal defeat not only cost Guerin’s side $5,133.38--money paid the defense for court costs and witness fees--but severely limits what he can eventually recoup, if anything. Instead of a Superior Court jury potentially awarding him several hundred thousand dollars or more, the workers compensation system will probably limit him to “under $100,000,” according to Tentler.

Undaunted, Guerin’s lawyers have filed an appeal. Meanwhile, the hotel is fighting Guerin’s workers compensation claim, which will be the subject of a hearing later this summer. On yet another legal front, a separate lawsuit against the General Electric Co.--which designed and built the transformers--and San Diego Electric, the company that attempted to repair the transformers, is still pending.

The three 3,000-pound electrical transformers--which Cal-OHSA tested positive for PCB contamination--were removed from the roof of the hotel by helicopter last October.

“It’s slow, real slow,” Guerin said of the legal process. “I’ve never been involved in anything like this. It seems that everybody keeps getting extensions on everything.”

There is one bright spot for Guerin. His doctors believe his health is ever so slowly improving and that the level of PCB in his blood has dropped 30% to 40%.