By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
Barfield urged the clients to accept the offer. He explained that all they really had on the railroad were a couple of workers who said they had seen chemicals dripping from a few boxcars.
"That case is tremendously weak," Barfield said. "We would be looking like we were fools to say this ... this sly activity of the railroad was what caused all this harm."
But there were other reasons his clients needed to agree to the settlement, Barfield stressed, the main one being the "insurmountable" financial demands that threatened to sink the toxic tort case. He told them that an Amarillo bank was pressuring the plaintiffs' team for $1.1 million "immediately" and that the lawyers owed $700,000 in unpaid expenses.
"We have notes coming due on November 15," he said. "We have never paid any of the court reporters in this case and they are threatening to sue us ... We have experts in this case that are saying, 'We expect to be paid up front and we're not coming to testify if we don't get paid.'"
Among the experts yet to be paid was the plaintiffs' key liability expert, Al Baxley, who was scheduled to begin testifying when the trial resumed two days later. The attorneys also owed about $100,000 to two medical experts who were set to testify.
The bottom line, Barfield told his clients, was this: "We desperately need the $2 million to pay the people and pay these experts and to pay these bills ... If anyone is not willing to sign this agreement, then we're all finished."
If Barfield sounded desperate, it may have been because, at least the way he made it sound, the attorneys had already signed the settlement agreement, accepting the $2 million before getting approval from the clients. When one of the clients asked about the deadline for the settlement, Barfield replied:
"It's not a deadline situation. We've signed. We have had to sign our names on the agreement as attorneys and promise with our bar licenses that we would get this done. It's one of those deals where you have to take the risk ... You either make a decision or you're going to get murdered anyway."
In fact, Barfield had an inkling they were about to get murdered in the toxic tort trial as well. He told the clients that Celanese had "every major doctor in the world to come in and say you are not injured by these chemicals." He told them that the company controlled Baylor College of Medicine and "entire medical complexes in Chicago." He admitted to them that their own medical experts "can't match up."
Testimony began two days after Barfield's meeting with the clients and continued for about three weeks. It was interrupted frequently, including the day that Upchurch turned pale and collapsed onto the counsel table. On November 30, the plaintiffs' attorneys filed motions for a mistrial and to have the judge removed from the case. Chambers denied the request for a mistrial and, after some prodding by the Celanese attorneys, appointed another judge to hear the motion for recusal. It was denied, even though the two living test plaintiffs testified that they had seen Chambers nodding off during testimony.
That evening, Barfield met with Celanese attorneys, who appeared confident that the plaintiffs were headed for defeat. Apparently Barfield felt the same by the time he left the meeting to join Upchurch, Haden and the two plaintiffs.
"It looks like the fix is in," he later recalled saying that night. "And I think we're going to lose the entire case."
The following morning, less than a month after the trial began, Upchurch, Barfield and Haden asked that the case against Celanese be dismissed. Before the month was over, they negotiated the $25 million settlement from Celanese in exchange for the dismissal of all 850 toxic tort claims. They also agreed to drop the Kingsmill case in Sweetwater.
Once the trial was over, it didn't take long for the finger-pointing and backbiting to begin. A few weeks later, a frustrated Barfield blamed Upchurch for their failure to prove the case. Upchurch had been "absolutely sent home with his tail between his legs because of his ineptness," Barfield claimed to one client. "I mean, if you haven't seen what the man can do and how he can destroy people and destroy claims, then you haven't kept your eyes open."
Barfield fumed that Upchurch did not allow him to present the evidence they had gathered and wouldn't let him question a single witness during the trial. Instead, he said, Upchurch "came to that court with the idea that he was going to be the hero."
Haden, likewise, tried to pin the blame on Upchurch. The Amarillo lawyer "fell on his face in Houston," Haden said. He told one client that Upchurch lived in "a fantasy world."
Indeed, Upchurch's mental state was raised more than once by his associates in their explanations for the collapse of case. Barfield's son, Brooke, a lawyer who assisted on the case, told a client that Upchurch needed "help."
"It's like that routine in Houston, falling down and collapsing in the courtroom and then it ends up, there's nothing wrong with him... I know he used to be a very competent lawyer, but I'm afraid he is not dealing with a full deck, and that is what Wayne and Charles have asked me to say." (Despite Brooke Barfield's assertion, one of the Celanese attorneys in the courtroom the day that Upchurch collapsed said he believes the lawyer was fatigued and was actually ill.)