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.

Although laden with grammatical and spelling errors, the document was, if nothing, thorough. Not only was fear of pain and death listed, but so was fear of "serious illness pain and slow death." The clients also were instructed to express a "fear of never being compensated enough for all the possible damages" inflicted by Celanese. And there was no. 42: "Nightmares from these fears -- Nightmares of toxins oozing from their bodies."

Less than a year after the Texas Water Commission found the benzene traces in the Kingsmill well, the Kingsmill Water Supply Corporation -- a community co-op that owned and operated the well -- sued Celanese. Upchurch, Barfield and Haden also named as a defendant in the suit Santa Fe Railway, whose employees, the suit alleged, had drained chemicals from railcars into the soil near Kingsmill Camp.

Barfield would later tell a group of clients that the railroad was included as a "ploy" to get a trial in Sweetwater, where Santa Fe has regional offices. He explained that the three attorneys had hired Temple Dickson, a former state senator from Sweetwater and "an absolute close friend" of a judge there, as a co-counsel.

J.D. Bashline, an attorney with the Houston firm that represented Santa Fe in the case, says it was common knowledge that Upchurch, Barfield and Haden sought Sweetwater as a venue for the new lawsuit. "They thought they could sign up Temple Dickson as their local counsel and all good things would happen and the money would roll in," Bashline says. "That's not something you can count on, but I know that's why they filed that suit over there."

By the time the Kingsmill water suit was lodged, the toxic tort affair had been under way for four years. The clients, now numbering more than 800, were suitably scared -- and weary. Many fretted that even if they won they would be long dead before the appeals process was through. In September 1992, Celanese offered to negotiate with the Kingsmill Camp residents for purchase of their property. Some thought it sounded like a good deal.

But at a meeting at client Ann Malone's house, Haden warned them that Celanese would try to undercut their property values and reminded them that the real issue was the long-term effects of the plant's "fugitive emissions," all of them carcinogenic, that they already had been exposed to. Many caused "deformities" in the unborn, he said.

"Just remember that," he said. "You have been smelling it for years ... Even if nothing bad happens to you, and you have to live out your days wondering if and when the other shoe is going to fall, that's worth money ... We will win this case. If we try this case ten times, we will win it ten times."

DROPCAP:But they tried it just once and, by all accounts, it wasn't pretty. In fact, Upchurch, Barfield and Haden ran into trouble immediately, when it was learned that no one on the plaintiffs' team had paid the $15 fee required for jury trial. That omission cost them their right to present their case to a panel of Harris County residents, something they had coveted from the very beginning.

Then, while their witnesses were being manhandled on cross-examination by Celanese attorneys, the lawyers became convinced that Judge Chambers -- who in the absence of a jury was hearing the facts and would render a decision -- was biased against them. Then they thought they caught him napping during testimony and tried to have him recused.

"That became the key for them to get out," Hartline said of the plaintiffs' attorneys' problems with Chambers. "But you have to understand, they were falling on their face."

Another theory for the poor courtroom showing is offered by William Kilgarlin, a former Texas Supreme Court justice who was appointed case master to oversee pre-trial proceedings, including the depositions of expert witnesses. Kilgarlin suggests that the potentially lucrative, high-profile case brought out a clash of egos among the attorneys.

"There was always a very disjointed effort by the plaintiffs' lawyers," says Kilgarlin, now in private practice in New Mexico. "It was very difficult for me to handle it because I tried to get them to just allow one lawyer to speak for all of them. But Upchurch would come in and take one position, then Barfield might take an entirely contrary position to what Upchurch had just said. So it was difficult dealing with the plaintiffs' lawyers."

But the best explanation was offered by the attorneys themselves in meetings with the clients during and after the trial. These conversations must have been confusing to the clients, if not downright shocking. What they learned was that despite all they had been told for the past five years, their attorneys could not prove that Celanese was responsible for any illness or birth defects in the region. Moreover, Celanese's expert witnesses were so superior to the plaintiffs' they could probably prove most of the clients "don't have a damn thing wrong with them," according to Barfield.

The clients' first indication of trouble came two days after the trial began, in a November 6, 1993, meeting in Pampa to discuss a $2 million offer by Santa Fe Railway to settle out of the toxic tort and Kingsmill water cases.

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