By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
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By Camilo Smith
By Craig Malisow
"We've got our judge," Shaw told the assemblage. "We're withstanding the tests they're trying to put us through."
Unfortunately for Shaw and O'Quinn, the victory was extremely short-lived. As the two lawyers and their clients would be reminded in a matter of minutes, the course of the Kennedy Heights lawsuit against Chevron calls to mind that catch phrase from the Hertz car rental commercial. When the meeting began, U.S. District Judge Ken Hoyt -- who, like the Kennedy Heights plaintiffs, is African-American -- was still behind the steering wheel. Before it ended, the lawyers and residents were stuck with "not exactly."
O'Quinn had convened the meeting to address mounting dissension within the client ranks over his firm's handling of the lawsuit. As part of the effort, the audience was treated to old-fashioned Sunday-service spirit-raising led by some of O'Quinn's favorite black politicians. But midway through the revival, Hoyt blew the top off the tent by phoning O'Quinn's office with the news that he was recusing himself mid-trial after it was revealed that his wife had worked for Gulf Oil more than two decades ago.
Hoyt's grip on the case had been shaky since Chevron tried to force his recusal for prejudicial comments the judge had made to lawyers for the energy giant. Although a panel from the U.S. Fifth Circuit Court of Appeals declined to order him off the case, the judges were unusually harsh in describing Hoyt's remarks as "unfortunate, grossly inappropriate, and deserving of close and careful scrutiny." Reading between the lines, you didn't have to be a legal scholar to understand that the appellate judges were suggesting that Hoyt might considering jumping -- even if they weren't going to give him a push 31 days into the trial of a complex piece of litigation.
The three-year-old Kennedy Heights case is all about whether petroleum wastes buried by Gulf back in the 1920s caused illness and death among the African-Americans who later bought homes built atop the site in southeast Houston. Chevon purchased Gulf -- and its potential legal liabilities -- in 1985.
While the allegations that the pollution caused health problems among residents have yet to be proven in court, the case does seem certifiably toxic, at least to the judges who've presided over it. So far, the litigation has seeped through the courts of four state and federal jurists, including state District Judge William "Bill" Bell, who also recused himself after allegations were raised that he had made improper contacts concerning the case with lawyers outside his court. The lawsuit was later transferred to federal court. With Hoyt's recusal, U. S. District Judge David Hittner became the latest recipient of the legal hot potato.
But there was no hint of Hoyt's imminent departure when O'Quinn strode into the TSU auditorium last week. The charismatic and controversial king of breast implant litigation raised his fist in a power salute as he entered to the cheers and applause of the crowd.
The warm reception belied the purpose of the gathering, which had been prompted by increasing dissatisfaction among Kennedy Heights residents. Although no one from the audience spoke out during the meeting, it was clear from the speeches delivered by O'Quinn's special guests that at least some of the residents are unhappy with the lawyer's firm.
When questioned by The Insider, Shaw would only acknowledge that some residents are angry because they weren't among the 29 named plaintiffs in the lawsuit. He singled out one disgruntled Kennedy Heights woman whose husband reportedly died of brain cancer. O'Quinn was even less forthcoming: "I can't comment about what my clients and I talk about," he said.
A frequent spokesman for the residents, John Simmons, was also uncharacteristically silent about the reports of client disaffection.
"I can't speak about that right now," Simmons said by phone several days after the TSU meeting. "Maybe in a couple of weeks."
A lawyer who previously worked on the litigation says O'Quinn and Shaw have had difficulty dealing with the residents from the beginning. Until former city attorney Benjamin Hall joined the case for O'Quinn's firm, "all the lawyers that O'Quinn had on the suit were white, and they made some fundamental relationship-type mistakes at the beginning that are starting to show."
This attorney says many of the Kennedy Heights residents "are not convinced that the stuff made them sick, and a lot of 'em are not convinced that Chevron will ever pay." In seeking damages on behalf of some residents, the lawsuit has damaged the property values and ruffled the feathers of other homeowners who are not participants in the litigation.
O'Quinn, in an attempt to assuage residents' doubts, brought along some high-powered, if rather unusual, case managers to the TSU gathering. The audience was treated to -- or subjected to -- pep talks by City Councilman Jew Don Boney, Congresswoman Sheila Jackson Lee and Robert Muhammad, the minister of the local Nation of Islam mosque. All were on hand to attest to O'Quinn's abilities and persuade the residents to stop questioning their attorneys. At times, the three seemed to be trying to browbeat the residents into unconditional acceptance of O'Quinn's leadership.
Muhammad even jokingly offered what must have been the ultimate endorsement of O'Quinn and Shaw, at least coming from a disciple of the Nation of Islam. Noting that O'Quinn is white and Shaw is Jewish (and white to boot, he forgot to add), Muhammad said he obviously wouldn't be supporting the pair if they weren't really good lawyers.
Although the TSU meeting was in a state-owned facility and involved public officials, Linda Brown, who's handling the Kennedy Heights PR for O'Quinn's firm, told a Channel 26 crew and The Insider that the function was closed to the media. The TV crew departed after filming some footage of the crowd, but we refused to leave. That led to a confrontation with Shaw. The meeting was being conducted at TSU, the lawyer explained, so the residents, many of them poor and elderly, could discuss the case in a comfortable, air-conditioned setting. If The Insider insisted on remaining, Shaw warned, he would send the crowd home.
Not wanting to be crowned the grinch of Kennedy Heights, we negotiated a deal with Shaw. The public portion of the meeting would remain open to the media, such as it was, but we would depart when O'Quinn got down to lawyer-client discussions with members of the audience.
With the question of access out of the way, the speeches began. Boney took the microphone to compare the Kennedy Heights suit to the successful struggles to free death row inmate Clarence Brandley and vanquish apartheid in South Africa. Then he got down to the business at hand, rebuking any of the clients in the audience who had dared to take issue with O'Quinn's handling of the case.
"Why would you question those that got you to this point?" said Boney. "When some who have been on the sidelines of the struggle come to a meeting and tell you what to do, they're out of line. We're not going to have that. We're going to follow battle protocol."
Unaware that Hoyt's recusal call was minutes away, Boney advised the audience to "celebrate the victory of the moment. You could have another judge now."
Then it was Congresswoman Lee's turn. She, too, had Hoyt on her mind. Noting that the judge was one of her constituents in the 18th District, Lee actually tried to excuse Hoyt for his bizarre ruminations on race, evolution and biodiversity that had provoked Chevron's effort to force him off the case.
"When you're among family and friends, it's easy for your tongue to slip," said Lee. "He just wanted to talk about the human family."
Hoyt, a Reagan administration appointee who was recommended for his judgeship by U.S. Senator Phil Gramm, certainly holds an interesting view of the human family. Among the comments that Chevron found objectionable was the judge's opinion that an Arthritis Foundation brochure positing that blacks have a higher incidence of lupus than whites was invalid "because white people wrote it."
In musing on the differences among races, the judge also offered Chevron's attorneys his unique take on Chinese and African physiques: "Why do you think Chinese people are short? Because there is so much damn wind over there, they need to be short. Why are they so tall in Africa? Because they need to be tall. It's environmental. I mean, you don't jump up and get a banana off the tree if you're only four feet." (Perhaps the winds are just exceptionally high where the Pygmies live.)
But strangest of all was Hoyt's observation that God put pigmentation in the skins of Africans because they wouldn't have survived in the jungle without it. "I think he knew that people in Europe, Great Britain, didn't need it because if they had that stuff in their skin, they would have died, but because they don't have the pigmentation, they can live in Europe. Because I have the pigmentation, I can't live in Europe."
That comment would come as quite a surprise to millions of people of African descent currently living in Great Britain, France and other former imperial powers that have absorbed colonial populations.
After pardoning Hoyt's "slips of the tongue," Lee, as she is wont to do, began drifting on to other issues, including her support for an apology by the U.S. government to African-Americans for the institution of slavery and her opposition to the upcoming referendum on doing away with the city of Houston's affirmative action programs.
As the talk rambled on and on, O'Quinn suddenly picked up his cellular phone and, with the phone still cupped to his ear, hurriedly exited the meeting through a side door. He returned minutes later, the message from Hoyt having been relayed to him.
Meanwhile, Muhammad had taken the stage for one last lecture to the clients who had the effrontery to question O'Quinn.
"You don't have the experience to lead," Muhammad admonished. "You're like a child. Grow up! 'Cause anything that's got two heads is a monster that should be in a zoo."
After Muhammad concluded, Shaw walked across the auditorium and asked The Insider to leave so that O'Quinn could have a private word with the clients. Unaware that Hoyt had just dropped out of the case, we complied. As it turned out, O'Quinn kept Lee, Boney and Muhammad around to help deal with his new task -- delivering the bad news to the residents without sending them home dispirited.
According to one witness, O'Quinn was at first uncertain whether to tell the residents about Hoyt's withdrawal, the news of which arrived as Lee was speaking. "Goddamn it, Hoyt just recused himself from the case," O'Quinn whispered to the officials in a huddle after the speeches. Because the meeting was going so well, O'Quinn wondered whether the residents should be told immediately. The group came to the conclusion the news had to be broken before the clients heard it via the media.
O'Quinn took the mike and started innocuously enough, saying there was no place he'd rather be than right there with his clients. "I've always believed that no matter what, always tell the truth," he said, "and I wish that what I'm about to say, I didn't have to say, but you need to hear it from me." O'Quinn paused and the hall was stone silent, except for Congresswoman Lee, who chimed in, "We're with you, John. Just tell 'em."
O'Quinn recalled how the residents had gone to New Orleans to sit in on the Fifth Circuit deliberations that resulted in Hoyt being allowed to remain on the case. That small victory was now history, said O'Quinn. "Judge Hoyt has just called my office to recuse himself from the case." Moans of "Oh, God" and "Jesus" rose from the crowd.
"We will overcome this," continued O'Quinn, who explained that the recusal meant a new jury, a new judge and starting over "at square one." Boney and Lee then reclaimed the floor and worked the crowd over one more time before the residents filed out in silence.
"It just shut it down," said one participant in the meeting. "The client dissatisfaction was never addressed. The mood became, 'Oh, John, what do we do now?' "
Afterward, O'Quinn wasn't available for comment, but Shaw said he's looking ahead to the new trial in Hittner's court, which he hopes will be under way by late fall.
"It would just seem like a heartless act to have these people out [of court] for more than two months," he said.
And expensive for the lawyers too. O'Quinn has poured millions of dollars of legal services and expenses into the litigation thus far, and is seemingly no closer to a judgment that when the suit first surfaced in state court three years ago.
The Insider can be reached at (713) 624-1483 or (713) 624-1496 (fax), or by e-mail at Insider@houstonpress.com.