The Toxic Tort Case

It began in the Panhandle with the promise of great riches, only to crash and burn in a Houston courtroom. The wreckage is still smoldering, and the truth is nowhere to be found.

A few months later, even before some of his clients concluded that he had sold them out, it would be suggested that Tom Upchurch had faked a heart attack in open court.

Upchurch also would be called mentally unstable and accused of being a flat-out lousy lawyer.

And that's just what his own associates had to say about him.
But in the first week of November 1993, as he prepared to go to trial in a Houston courtroom, Upchurch was still a hero, at least to his clients. There were 850 of them, and they were suing the Hoechst Celanese Corporation, the world's largest chemical company, in Harris County's 215th District Civil Court.

The so-called "toxic tort" trial began as a landmark lawsuit filed in Houston in December 1988, drawing the attention of the New York Times, CBS News and, no doubt, the boards of directors of every major chemical company in America. The mass-action suit alleged that for 35 years Celanese had been poisoning the air, water and soil around its plant in Pampa, a Panhandle town 55 miles east of Amarillo, and causing a wide range of serious illnesses, including the town's unexplained high incidence of Down syndrome.

The trial was to be the high point in the careers of three lawyers: the short, scrappy Upchurch, who had built a successful plaintiffs' practice in Amarillo on his ability to attract clients and build cases; Wayne Barfield, a talented trial attorney from Amarillo who had tried cases for Upchurch in the past; and Charles Haden, a former Fulbright & Jaworski associate who had become a plaintiffs' attorney and was nearing the end of a long career in Houston.

The three had plenty of experience suing big companies on behalf of little people. But, as they often told their clients, they had never confronted such "evil" as Celanese. They insisted that after interviewing doctors, scientists and hundreds of Pampa residents and reviewing a million pages of company documents, they could prove that the chemical giant knowingly had been killing, maiming and deforming its neighbors, and had done nothing to stop it.

By the time the trial opened in the court of Judge Eugene Chambers, the case had been pared down to three select plaintiffs who would test the facts for all 850 men, women and children who were claiming they had been, or would be, injured by toxic emissions from Celanese. There was a retired railroad worker with leukemia who had slogged through spilled chemicals at the plant, a second rail worker who had been diagnosed with malignant lymphoma in 1982, and a third worker whose testimony had been videotaped just before he died at age 40 of a brain tumor.

The stories of the test plaintiffs promised to be compelling. But those stories were to go untold, at least inside the Houston courtroom. That's because from the very start of what was initially projected to be a months-long trial, the toxic tort case was in trouble.

One immediate problem for the plaintiffs was the testimony of a key witness, Al Baxley, a chemical engineer and former Celanese employee. Baxley's role was to explain how Celanese was aware its processing of chemicals created toxic emissions, and, therefore, was liable for damages. But the cross-examination by Celanese lawyers was tearing holes in Baxley's allegations about the level of emissions from the plant and how dangerous they were. The corporation's lawyers also were enjoying some success at portraying Baxley as a disgruntled ex-employee with an ax to grind.

"It was easy to show," one of Celanese's attorneys recalls. "And I was having a helluva good time."

The fun only lasted a short while.
One morning about two weeks into the testimony, the color drained out of Upchurch's pink, boyish face. With a quiet gasp, he slumped over onto the counsel table, his head coming to rest in his hands. Chambers ordered a recess for the day to allow Upchurch to visit a doctor.

Upchurch was back in court the following morning. But after that, what little fight remained in the plaintiffs' team was used not to try the case, but to stop it. The lawyers accused Chambers of falling asleep during testimony. They charged the judge with being biased and tried to have him recused. They asked for a mistrial on a technical matter; it was denied.

Still, while everyone sensed the plaintiffs' case was foundering, no one expected what happened next: on December 1, the three attorneys filed a motion asking that the test case against Celanese be dismissed. A few weeks later, they agreed to withdraw the claims of all 850 clients -- including 91 who had filed a separate action against Celanese in Sweetwater -- in exchange for $25 million from Celanese.

"You could have knocked me over with a feather," says George Butts, an Austin lawyer who was a member of the Celanese defense team. "I felt like we were just kinda getting started."

He wasn't the only person surprised by the abrupt end of a case six years in the making, one in which the plaintiffs had been told by their attorneys that they were due anywhere from $500 million to $1.5 billion for their pain and suffering.

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