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.

Upchurch appeared, in his own comments to clients, to have been driven nearly "over the edge" by the six-year ordeal, as Wayne Barfield put it. He made cryptic comments about how he was secretly working at the "highest levels of the government" to bring Celanese down. And his frequent comparisons of the company to Nazis exceeded mere hyperbole: "It's a medical community cover-up. Remember when the Jews were being murdered?"

He also accused Chambers of being part of the Celanese conspiracy.
"That was a bogus trial," he said. "That judge was crooked."
Karen Sue Son recalls a meeting Upchurch convened in a Pampa park a few months after the trial. The attorney was apparently either trying to hold off a malpractice suit or attempting to kindle interest in a new lawsuit against Celanese.

"He was a maniac," Son says. "He would just say off-the-wall stuff and even said something about putting a gun to his head and blowing his brains out. They say he was once just a brilliant attorney, but something has happened to him."

But ultimately what was more troubling to Son and some of the other clients was the way the lawyers handled the settlement. Admittedly, it was no easy task for Barfield to get all the clients to agree to the settlement and then to divvy it up. But, as some clients would later allege, Barfield was heavy-handed in his attempts to persuade them to take the money.

"It's a take it or leave it deal," he told clients Maxine and Steve Cox. "If we don't settle this case, the whole deal is off. They will beat us in court and they will beat us in court for the next 20 years."

To those who refused to sign off on the settlement, Barfield threatened to withdraw as their attorney and let them fight on against Celanese -- a foolish idea, he suggested, because no other attorney would take their case.

"If they cross me, I am going to tell you, I will beat them to the line," he said. "Because I will feed them to the lions, because the lions are waiting to have them."

But, as he had in November, when he urged the clients to accept the $2 million from Santa Fe, Barfield said the Celanese offer was the best they could get -- considering that they had no case in the first place.

"Let me tell you something truthfully and candidly," he told client Bart McClean on January 17, 1994, "Tom and I created this case out of smoke and mirrors ... We played this hand as hard as we could. And you know what Kenny Rogers says, 'You gotta know when to hold 'em, you gotta know when to fold 'em.' We came damn close to losing it all."

That came as a small consolation to Carolyn Hood, who had been involved in the case longer and more closely than any other client. She had been terrified by the threat of disease and was convinced that a spot found on her husband's lung in 1992 was caused by toxic emissions from Celanese.

Now, her attorney was telling her that she should be happy with whatever money she was to receive because they could never prove that Celanese was responsible for anyone's illness.

"Our lives have been totally destroyed," she responded angrily. "But here's other people, other plaintiffs, that have gotten offered as much [money], if not more, than we have. And we're going to have to uproot our lives."

As part of the settlement, all the property in Kingsmill Camp would be purchased by Celanese. Now, all that remains of the once close-knit community is a few stands of weary-looking elms and a pile of rusted scrap metal. Hood joined most of the other residents in moving to Pampa or nearby towns; others have cleared out of Gray County altogether.

Karen Sue Son says that in her discussions with other clients after the trial she learned that they weren't given much choice in agreeing to the settlement. Her own settlement meeting, with Haden's partner, Marc Linsey, proved to her that it was a "bad deal."

"They wouldn't let me have the contract," she says. "They wanted me to sign it, yet they wouldn't let me have it. They told me, 'You have to read it in the office, but we can't let you take it out.' They kept saying it was confidential."

That was only one of the many stories of the toxic tort case that attracted the attention of Houston lawyer Larry Doherty, who is representing some of the onetime clients of Upchurch, Barfield and Haden in their suit against their former lawyers.

Doherty seems intent on making a splash out of the malpractice suit. His original petition, filed in early February, ran to 115 pages. Even by the windy standards of most lawsuits, it is surprisingly full of rhetoric. It also is rife with quotations from the tape recorded conversations between the toxic tort attorneys and clients.

"These people were used by their lawyers for their own economic gain," Doherty says. "What they did was terrorize the citizens of the Panhandle of Texas, disseminating a story that was as serious as cancer. And it was a joke."

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