THIS CASE WAS A REAL STINKER! The odors were simply horrible, forcing people to stay in their homes and sending people out of the area on weekends.
Weyco had a pulp mill in Cosmopolis that made specialty pulp for photographic paper, cellophane, and cigarette filters. The process of making this pulp produced an effluent or slurry that needed to be disposed. They ran a large pipe about three miles to a series of four waste disposal ponds nearly a mile long located next to the harbor in South Aberdeen. These ponds were then chemically treated in order to produce a fluid that would pass state and federal water quality restrictions on chloroform levels in order to be dumped in the harbor. From there, this fluid would be flushed into the ocean with the tides.
Lots of chemical reactions were going on in these ponds. They were prone to becoming stagnant and creating terrible odors, generally of the hydrogen sulfide type that smells like rotten eggs and sulfur dioxide that smells like dirty diapers. In order to help alleviate the problem, they placed aerators in the ponds to throw the liquid into the air and thus infusing oxygen into the mix. Without this aeration, the ponds would become anaerobic, and exaggerate the odors. In 1990, they turned the aerators off. The ponds became anaerobic. The community smelled horrible, depending on the direction of the winds.
Local South Aberdeen community members suffered headaches, nosebleeds, eye irritation, sore throats, coughs, asthma, and nausea. In addition, 2 of 22 plaintiffs suffered from cancer and a third a severe asthma/pneumonia illness call Bronchial Obliterans with Organizing Pneumonia (BOOP). The ponds also contained dioxin and chloroform cancer causing agents.
Hydrogen sulfide was a well-studied noxious gas in high doses in employment (8 hours per day) exposures, but little was known about low dose constant exposures, like those exposures to residents of South Aberdeen.
The lawsuit focused on the toxic dump waste with legal theories of negligence, trespass, and nuisance. Experts from Canada and around the United States were called to testify. The trial lasted for three months.
Before the trial started, Weyco threatened to shut down their mill. We saw this as a direct threat to local jurors because Weyco employed 312 local residents. We were sure this was an intentional bluff to impact the jury pool. We moved for a change of venue. The motion was in effect granted as Judge Foscue ordered that the jurors be selected from Thurston County and bused daily for the trial in Montesano.
Opening day the courtroom was packed with standing room only. Clients, other lawyers, the press, and other interested parties attended. It was a very high-tech presentation with models, maps, laser discs, aerial zoom photography, charts, and slides. It was an exciting start to the trial. During opening argument I suggested that the dangers of exposure to toxic chemicals were such that the area should be evacuated. As a result, the Daily World newspaper ran a “political cartoon” of the essence of my argument. It is the only time I have ever been so depicted.
I have always been known for my ties. My ties are colorful and beautiful. I owned at least 300 ties. I, of course, wore those ties during all the depositions and court appearances in the case. The first morning of the trial, my opponent Mark Clark, who was lead counsel for Weyco, showed up with a wild, colorful tie. I was dressed in a subdued, conservative tie. He walked over to me and said, “You SOB. You played me. I went out and bought a new wardrobe of ties to wear for this trial.” I said, “I love wild ties. But I’m not dumb enough to wear one the first day of trial.” After that, for 13 weeks, every Friday we would go into the jury room and see a vote from the jury awarding the “Tie of the Week.”
The trial was very, very technical. I told the jury in opening statement that when we were done they would receive college degrees in chemistry and probably a few other areas. We had experts in:
• Operation of a pulp mill;
• Creation of the effluent waste product;
• Chemical makeup of the ponds;
• Operation of the ponds, especially the aerators;
• Measuring the chemicals in the air from the aerators—the levels of chemicals in parts per million;
• Movement of the chemicals through the air from the ponds into the South Aberdeen community;
• Absorption of the chemicals by the residents;
• Health impacts from exposure to such levels of the chemicals;
• Epidemiology studies of cancer rates in the state compared to Grays Harbor County compared to South Aberdeen residents;
• Cancer experts;
• Corrosion expert;
• Medical testimony for each plaintiff.
It was an exhaustive and exhausting process.
A few things stand out from the trial. One is the story of “BOOP,” the cross examination by defense counsel of one of our doctors, as set forth in the booklet published for my Champion of Justice award presented by TLPJ. [Trial Lawyers for Public Justice]
EVEN BETTY BOOP WOULD HAVE BEEN EMBARASSED OR OOPS
[1st story]
My client had suffered a very severe and disabling injury that was threatening her life. She had bronchial obliterans with organizing pneumonia. It is a complex, fortunately seldom seen, lung illness that greatly compromises an individual’s ability to breathe. We believed it was caused by a toxic chemical exposure and we had sued the company that had created that exposure.
As I did research on this disease, I discovered that because bronchial obliterans with organizing pneumonia is difficult and cumbersome to say, it is generally referred to as “BOOP” in the medical community. In speaking of this illness, the term BOOP is almost always used. So I became comfortable with that term and used it during my preparation for trial.
At trial, I called the treating doctor. I had him describe bronchial obliterans with organizing pneumonia in considerable detail, and I also had him tell the jury how this is generally referred to as BOOP. We called it BOOP thereafter during his direct examination.
The defense was not contesting the fact that our client had BOOP; their own experts agreed. However, they denied that it was exposure to their chemicals that had caused the BOOP. This was a hotly contested issue in the case, as one might expect.
After I completed my direct examination, defense counsel stood up to begin his cross-examination. This was a seasoned, articulate, and well-qualified lawyer. He knew what he was doing. He had a reputation for being a very effective trial lawyer with many successes in representing his corporate clients. I knew he would do his usual excellent job as he had done with other witnesses that I had already presented during the trial.
After preliminary comments, defense counsel said, “Now doctor, you have diagnosed the plaintiff with bronchial obliterans with organizing pneumonia, haven’t you?”
The doctor said, “Yes.”
“And you call this BOOP, don’t you?”
The doctor again said, “Yes.”
Defense counsel then walked over to the easel with a white tear-away butcher paper pad, and wrote in large black letters, “BOOB.” He then turned around and started to ask his next question of the witness. At this point, everyone in the courtroom began laughing. He looked around a little startled and said, “What’s the joke? I guess I missed it.” No one told him. He then went on and conducted an 80-minute cross-examination standing in front of that butcher paper with the word “BOOB” written behind him.
Honestly, cross-examination was very well done. On any other day, I have no doubt he would have been extremely effective. With his own hand-drawn description behind him, however, I don’t think the jury got much of the import of that cross-examination.
Another is the story of, “And the Band Played On,” my cross examination of the key defense expert, also in that same booklet.
“AND THE BAND PLAYED ON”
[2nd Story]
In 1990, most of Aberdeen stunk! It was horrible! It was a combination of the smell of sewage, rotten eggs, and as one witness described it in his testimony, “The vomit from 60 sick kangaroos.”
People of South Aberdeen had been putting up with this for many years. It wasn’t constant, because it was dependent upon which direction the wind was blowing. The source of these terrible odors? The wastewater treatment ponds of a local pulp mill.
The pulp mill is actually several miles from South Aberdeen. In the pulp-making process, wastewater is created that is discarded. The pulp mill ran this effluent through a pipe three miles to a series of large ponds. It was nearly a mile and a half from the east end of the first pond to the west end of the last pond. The wastewater was chemically treated and aerated in order to remove dangerous and illegal chemicals before it was flushed into the harbor and then sucked out into the Pacific Ocean.
In 1990, the aerators had been turned off. This resulted in the ponds going anaerobic. Considerable bacterial action was taking place causing the horrible odors. It was a disgusting experience for everyone in the vicinity.
But the problems were more than just the odors. The people in South Aberdeen had been suffering from the effects of these chemicals that had been thrown in the air for years. People commonly had headaches, eye irritation, nosebleeds, sinus problems, sore throats, and coughs, as well as the nauseating odor. The legal team also believed that some of the serious illnesses of lung disease and cancer were also contributed to by exposure to those chemicals. We filed a lawsuit against the pulp mill on behalf of 240 South Aberdeen residents.
The case was very technical, difficult and long. The trial itself took three months. The length of the trial was due to the need to present a tremendous amount of scientific information to the jury to understand the issues of medical causation. In order to describe the wastewater and what was in it, we presented an expert on how a pulp mill and the pulp- making process works. We had experts on how the chemicals and gasses in the wastewater got into the air. We had experts on quantifying the amount of those chemicals and gasses. We had experts in how the offending materials then moved from the wastewater ponds through the air into the community where our clients lived. We had experts on the amount of exposure that they suffered and the quantity of the chemicals that they inhaled. We then had medical testimony about the health effects from inhaling these amounts of noxious materials. It was an expert witness’ dream; it was a trial lawyer’s nightmare.
We had great difficulties finding qualified experts in the United States to testify against the pulp mill. American experts in the field, in the form of university professors and industry personnel, assured us that our case was viable and correct, but that they didn’t want to stand up to this big corporation because everyone had some contact with them. Thus, we had to go to Canada and Europe to hire our experts. This case was going to be expensive to present.
This type of litigation is called “toxic litigation” or a “toxic tort.” The various issues required testimony from experts in a broad range of fields, with nearly all of them required to be on a PhD level. We had one expert from Canada, who between himself and two others in his firm, ultimately cost us more than $1 million in expenses in presenting their work and findings.
The defense didn’t have it any better. They hired experts of their choice and their primary expert prepared a 520-page report. The lead defense counsel was furious; he did not believe that it was necessary to go to that extent in the defense of the case. Their expert also cost them in excess of $1 million. Frankly, both Plaintiff and Defense counsel were so embarrassed about the amount of money that had been spent on the experts, that the usual questions of how much the experts were being paid to show bias were not used by either side during the trial.
As is the standard practice with the use of experts in litigation today, we took a pretrial deposition of the defense expert to find out what he had done and what conclusions he had reached. It turned out to be a very strange deposition. While it probably should have lasted one day, taking maybe six to eight hours, the deposition lasted for three days. The reason is that when a question would be asked, the expert would sit and think about the question, often stand up and walk around the room, sometimes stare out the window, and then come back and sit down after a delay of three to five minutes before he would answer the question. I had never seen anything like this before from an expert. I wondered how he would handle testifying at trial under cross-examination. We were soon to find out.
As we went over in detail the defense expert’s reports and testimony from his deposition, we discovered that he had made a significant and fatal fundamental mathematical error. This mathematical error resulted in numbers that undercut all of his opinions. It was the sort of error that should have been discovered by a high school math student. Having made the mathematical error, he then had premised all of his opinions and ultimate conclusions on the figures that were invalid. I knew, more than I had ever known before, that my cross examination of him would result in his being completely discredited. It was rather exciting preparing for his cross-examination.
He was on the stand for a day and a half for the direct testimony. Fortunately, he had not discovered his mathematical error. All of his testimony was given consistent with his earlier reports and his deposition testimony. He was polished and professional in his presentation and, of course, there were no delays between the questions by defense counsel and his answers. My cross-examination was to start first thing on Wednesday morning.
I had prepared in detail an outline of how I was going to go about this cross-examination. There were a large number of matters that I wanted to question him about before I got to the coup de grace. I didn’t want to just stand up, point out his mathematical error and be done. I anticipated about a three-hour cross-examination. As I began the cross examination, as one would expect, no longer were there delays like we had seen during his deposition. He remained polished and confident, conceding some of my points, sparring with me on others, but I felt I was making inroads.
I need to set the scene. The trial was in Montesano, Washington, a small town with lovely surroundings toward the east end of Grays Harbor County. The courtroom I consider to be the most beautiful courtroom I have ever had the pleasure of working in. It was built around the turn of the century. It is elaborate and ornate. Beautiful ornamental wood cornices and elaborate crown moldings line the room. Huge murals on the walls admonish the witness to tell the truth. Large windows cover two walls of the courtroom. It is truly splendid. But they don’t have air conditioning. This trial was in late August and had now gone into early September. It was an uncommonly warm period of time. So, they ran the courtroom with the windows open. Otherwise, the heat would have been unbearable.
The local high school students had not yet returned to school, but the first football game would be in a couple of weeks and so the band members had returned early to practice for their opening football game. This included practice of marching while playing. And on the morning of my cross examination, the band was snaking its way toward the Grays Harbor County Courthouse.
I was about one hour into my cross-examination when we first heard the band, probably two blocks away. It was marching straight up First Street toward the courthouse and toward the open windows. As I continued my questioning of the defense expert witness, we could all hear the music playing louder and louder as the band approached. It soon became apparent that when the band got all the way to the courtroom, we were going to be unable to continue. The music would drown out my questions and any answers. The jury started to become a little restless because they figured out this was what was going to happen. I was trying to figure out what I would do. Just about the time I figured I would need to stop and have my cross-examination interrupted, the band stopped playing. I continued with my questioning. Three or four questions later the band once again struck up, this time playing the Montesano fight song. It was so loud that I was forced to stop. The jury began laughing, as did the witness and I. I stood there for about a minute and the band didn’t seem to be moving. Then they stopped. I turned to the witness and I said, “The next time you hear the cymbals crash, boy do I have a question for you.” The jury laughed and I began questioning him again. I had not gotten out more than two or three questions and once again the band started up. Everyone began laughing and once again I was forced to interrupt the cross-examination.
The band then turned and began marching away and after a couple of minutes I was able to resume my questioning. Having put out the threat, I felt I was forced to follow through with it. So I jumped down to that portion of my notes at the end of my planned cross-examination to force him to admit his mathematical error which would undercut all of his opinions.
I asked the question in some detail and at some length. However, it was quite apparent to everyone what I had found and what I was asking. The witness just stared at me. It is hard to really measure time in instances like this. Initially, I would estimate that he just stared at me for a full minute. He then began fussing with his paperwork, which was sitting on both sides of him. He reorganized the papers, which took at least another minute. He then stood up, turned in a complete 360-degree circle, sat back down and began staring at me again. This lasted another minute. I said nothing during this entire time. He then asked, “Would you please restate your question.” I went in for the kill! He knew he had made a monumental error. He knew there was no way to get out of it. He crumbled on the stand. The million-dollar expert for the defense had been totally destroyed!
The defense did not know what to do, and made no attempt to rehabilitate him. It had now become obvious that all of his opinions had been undermined. We went on to the next witness.
The next day, I had an opportunity to speak to the defense lawyer in private. I said, “I would like to have been a fly on the wall during your luncheon meeting with your expert to hear what was said after his testimony.” Defense counsel said, “You didn’t need to be a fly on the wall, you could have stood out in the middle of the street and heard me screaming at him. I gave him a plane ticket and told him to go home and I didn’t ever want to see him again.”
Defense counsel then said, “I knew that you were going to “hometown me,” but I sure didn’t know that you were going to get the use of the local high school band to accompany your cross examination. That’s a new one I’ve never even heard of before.”
Well, if the truth be known, my million dollar expert witness didn’t come off very well either. The jury found the defendant liable and awarded a significant sum for each of my clients for their minor injuries, but the jury found that there was no causation from these exposures on the serious illness claims we presented. But, I must say, I will never forget the day that during my cross-examination, the band played on.
A THIRD STORY involves the testimony of one of our clients. We had 241 clients. To try 241 cases would have taken at least a 12 month trial, probably longer. So we decided to try a representative sample of the cases. The judge ordered 22, 11 picked by each side. Obviously we tried to pick 11 of our best cases. (We were wrong on a couple of them.) The defense tried to pick 11 of our worst cases. (They too were wrong on a couple of them.) This story was about one of our clients picked by the defense.
This man was elderly, (Now that I think about it, probably younger than I am now as I write this.) He was not articulate. He had no health problems from the exposure, only rusted personal property in his yard. We worked with him and tried to prepare him. It was useless; he was going to be a terrible witness. We actually had him at the courthouse twice to testify and sent him home because we really didn’t want to put him on the stand. Finally, we had to have him give his testimony. I got the job of questioning him. After a short background inquiry, I picked up a large blown-up photograph showing his much rusted tractor. I asked him to identify the photograph. He seemed to pause. He leaned forward to see. Finally he stood up from the witness chair, turned around, and bent over, thus looking at me between his legs. Then he said, “Oh, I see. That is my tractor. You have it upside down.” The courtroom went into hysterics. He sat back down with a smile on his face and his testimony was electric after that. He was jovial. I was laughing through most of it. The jury was laughing. Defense counsel in closing argument even conceded he was the best witness in the trial.
The case resulted in a verdict that was very, very good for the odor nuisance, headaches, eye irritations, etc. It was nearly $30,000 per person, truly a record for such injuries. But we lost on the large claims, the cancers, and the BOOP. It had been a split vote by the jury on that issue, but we couldn’t garner the necessary 10 of 12 votes. We were very disappointed. Ultimately we recovered about $5.4M for the entirety of our clients.
About three months later I was visiting my mom and she told me two of the jurors from the case had filed Labor and Industries claims as a result of their jury service. I assured mom that could not be the case. She then produced a copy of the local paper reporting that indeed the two jurors, who were notorious note-takers, had filed for Labor and Industries benefits for carpal tunnel syndrome injuries from constant note-taking during a 13-week trial. Bizarre.
The Weyco mill stayed open for another 10-12 years but finally closed because of market conditions. The trial itself was an experience I will never forget.