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.

"You don't even have to have medical probability that you'll get it," Upchurch said.

Then, in April 1990, Hood received a call from the attorney.
"Today is the 6th of June," Upchurch proclaimed, making reference to D-Day. "We're landing on the beaches now."

Upchurch told Hood that an Amarillo pediatrician had found that the six Down syndrome births recorded in Pampa from 1980 to 1985 were "in all medical probability" linked to pollutants from the Celanese plant. Though other specialists said the theory was little more than speculation, it was enough for Upchurch.

The attorney was convinced the Down cases were caused by pollution from the plant, including contaminants in the local water supply. Among the millions of pages of documents Upchurch had received from the company during discovery was a 1987 report that benzene had seeped through 400 feet of soil and clay beneath the Celanese plant to contaminate the Ogallala Aquifer, the region's principal source of water. And benzene, in sufficient quantities, has been found to cause cancer in humans.

"You and all of the people around you in that area ... have been exposed to 1,000 to 5,000 parts per million of benzene," Upchurch told Hood. "There is a cancer epidemic there and they're building another wing on a hospital here to take care of people they expect to catch it very shortly, and most of the people being treated now are from Pampa."

Hood then told Upchurch about a friend with a tumor in his throat.
"Did he sign the case?" the attorney asked.
"No," she replied.

"Why won't he get in?" said an exasperated Upchurch. "What in the world, are these people crazy?"

Upchurch used the results of a routine test by the Texas Water Commission in November 1991 to sketch another "worst-case scenario" for Hood. The test seemed to suggest that the benzene-contaminated water had spread beyond the Ogallala Aquifer to the well that provided water to the 40 households in Kingsmill Camp. "Its drifting," he told Hood excitedly. "It may already be into the Pampa water supply ... They are keeping this a damn secret ... It's now beyond the fence line of Celanese, moving in a pocket."

"Oh God," replied a horrified Hood.
Mike Baker, a former Texas Water Commission official who now works for the Texas Natural Resources Conservation Commission in Amarillo, confirms that levels of benzene found in samples taken directly from the Kingsmill well in November 1991 were "above what they should have been." But Baker says samples taken from the well's distribution system -- that is, the water that was actually consumed -- were clean.

"The water coming out of the well did show some slightly elevated levels," Baker explains. "But by the time it was chlorinated and went through the standpipe, there were no samples taken that showed any violations of any levels."

Hood was told as much in a conversation with Neal Pflum, an EPA official in Dallas. Pflum explained that the contamination was restricted to a "perched water zone," a dry area between the earth's surface and the clay layer atop the aquifer. Pflum said the benzene and other chemicals found in the state's test "don't really correspond to anything" that could have been coming from Celanese.

He suggested to Hood that if the company's offer to make the well deeper or build a new one wasn't enough, she could take Celanese to court and try to prove it polluted the well. But that would be "very difficult to do," he warned.

It's clear from the conversation that Hood didn't believe Pflum. And no wonder: while her attorneys were telling her how Celanese was going to make her sick -- maybe even sick enough to die -- they also were telling her that state and federal regulators were helping the company cover up its dirty work.

"The EPA is supposed to be the protection agency," Barfield told Hood after her chat with Pflum. "But, you know, we're concerned about all these agencies conspiring to help these chemical companies."

Upchurch, typically, was more blunt: "I have no respect for the EPA or the Texas Water Commission or the Texas Air Control [Board]. I think all three are basically crooks."

The three attorneys often expressed similar contempt for Pampa doctors, who they were convinced were afraid of Celanese or, worse, parties to the "cover-up" engineered by the company. On more than one occasion, however, Upchurch advised clients that they needed to visit their physician every time they were stricken with so much as a sore throat.

"I mean, you've got to," he told one, "and you got to complain and faint and fall down ... I'll tell you, nobody is going to win any money if you never go to see a doctor."

And there would be no money if Celanese wasn't convinced that the plaintiffs had an intense fear of toxic chemicals from the plant. To underscore that point, the attorneys gave their clients a study guide which bore the title "MENTAL ANGUISH." The document suggested 47 different types of fear that should be shared with Celanese attorneys during depositions, so the company would understand the "worry in your life and fear of the future." But it also stressed that -- should the Celanese lawyers ask -- the fear originated "NOT FROM WHAT YOUR ATTORNEY HAS TOLD YOU" but from conversations with friends and family or from newspapers and television.

« Previous Page
Next Page »
My Voice Nation Help
Houston Concert Tickets