U.S. District Judge David Hittner and plaintiff's attorney John O'Quinn had a history long before the Kennedy Heights toxic-tort lawsuit brought them together in August. Several years back, Hittner issued a contempt of court citation against O'Quinn after catching the lawyer catnapping at a table in another judge's jury room. That round ended in O'Quinn's favor when an appeals court dismissed the contempt finding, but the pair could be headed for another confrontation before the trial of the Kennedy Heights suit even gets under way.
The point of potential dispute is O'Quinn's explicit denial to the judge in a court hearing that he had talked to a New York Times reporter for an article on the Kennedy Heights case. O'Quinn was quoted in the September 7 front-page story by Houston-based Times correspondent Sam Howe Verhovek, who says he interviewed O'Quinn and several other attorneys from his firm by phone for nearly an hour on August 28. The session had been solicited by a PR firm working for O'Quinn, the reporter says.
In a speech to Kennedy Heights residents at Texas Southern University shortly before the Times's disputed interview, O'Quinn declared, "I've always believed that no matter what, always tell the truth."
By disputing the veracity of Verhovek's story, O'Quinn, who's currently the target of South Carolina and State Bar of Texas probes into his alleged use of case runners to recruit clients from an airplane crash, had pitted his word against the credibility of the formerly gray lady of American newspapering, the Times.
The incident is just one more bizarre twist in the litigation brought by residents of the mostly black southeast Houston subdivision against oil giant Chevron. Their suit alleges Gulf Oil polluted the Kennedy Heights site in the 1920s, and then later sold the land to a developer who peddled homes atop the tainted soil to black Houstonians. Hittner took over the case from U.S. District Judge Ken Hoyt, who recused himself in late August after it was discovered that Hoyt's wife had worked for Gulf, which Chevron later acquired. Since then, Hittner has denied a motion by O'Quinn requesting that Hittner remove himself from the case for bias stemming from that previous contempt citation.
The Times quoted O'Quinn as saying, "Chevron is simply refusing to come to grips with the reality of this case. People in Kennedy Heights drank poisonous water and used poisonous water in the 1970s and 1980s and there is an epidemic of people who have cancer, lupus, birth defects and other illnesses which are unexplainable on any other basis than it was poisonous water." The story also quoted Kennedy Heights residents and a Chevron attorney.
Hittner was irritated by the Times piece because he had admonished all parties at an August 27 hearing to be discreet in discussing the case with the media. Hittner also warned that if the admonition was ignored, he would consider imposing a gag order. Verhovek says the interview with O'Quinn and company came one day after that admonition.
At a September 18 hearing on Kennedy Heights, Hittner told the attorneys he had pulled Verhovek's article off of the Internet and found that it contained comments attributed to both O'Quinn and Chevron attorney Bobby Meadows.
"Anybody want to respond to that?" queried the judge. "That's that big New York Times article. Don't look at it like you haven't read it."
Meadows told Hittner he had indeed spoken to the reporter after the judge's admonition, but said he did so because Verhovek already had comments from O'Quinn and was simply seeking Meadows's response.
Hittner then called on O'Quinn, who denied talking to anyone with the Times.
"I have heard about the article," O'Quinn told Hittner. "I have not read the article; I have been involved in extensive pretrial proceedings involving the 'state of Texas versus tobacco,' but I did not talk to that reporter."
"I am not disagreeing at all," Hittner responded. "But I am saying, the quotations were around it, so someone from the Times [is] putting quotes around statements."
O'Quinn said nothing, and Hittner closed out the discussion by speculating that perhaps the statements in the article were made before he had warned the attorneys about contact with media.
Verhovek is puzzled by O'Quinn's claims that he was never interviewed by the reporter. He produced a message slip taken by the Times answering service from Kristen Grimm Wolf, a senior account executive with Washington, D.C.-based Fenton Communications dated August 28, the day after Hittner issued his admonition to the lawyers. "We can do the interview at 1 p.m. today," the message reads. "He was happy to do this by phone. If you need more documents please come to the office."
Verhovek notes that the lawyer repeatedly identified himself during the interview. "Because we were doing it on the phone and there were several people in the room, including John O'Quinn and Ben Hall," recalls Verhovek, "I just said, 'When you speak, please identify yourself at the outset so I make sure that I'm taking the right notes from the right person.' "
The Times reporter says O'Quinn did most of the talking during the interview, and several times said, "Sam, this is John O'Quinn." Later, Verhovek says, he read back the remark he eventually used in his story, and O'Quinn agreed that it was accurate.
"I don't know what to say about this," says Verhovek. "Maybe I spent 45 minutes talking to a guy who repeatedly would say 'this is John O'Quinn.' Maybe he has a stand-in, I just don't know."
Publicist Wolf acknowledged arranging the interview between O'Quinn and the Times, but declined to confirm that it actually took place. Her boss, agency president David Fenton, promised to get to the bottom of the dispute for us. Fenton said his firm works with nonprofit and environmental groups and is well known "for being very, very careful and very ethical about everything that we do. So you can rest assured that everything you hear from us is going to be true and nothing else."
True to his word, Fenton called back shortly before Press deadline to wave a white flag on O'Quinn's behalf. According to the publicist, the interview with the Times and the lawyer took place just as Verhovek had described it, and O'Quinn "must have been very confused" in his comments to Hittner. Fenton said O'Quinn was writing an explanatory letter that would set the record straight.
In the letter, which was directed to Hittner and copied to Chevron's lawyers, O'Quinn conceded that his reply to the judge was not accurate, though he still seemed to waffle.
"I have learned that I talked to the Times after the court's admonition rather than before," wrote O'Quinn, skipping past the fact that in his comments in court, he had denied talking to the Times at all.
O'Quinn blamed his misstatement on the fact that "so many media people have been calling me about various newsworthy cases ... that I erred in my memory." One can only hope that his memory is a bit sharper when he's actually working on those cases.
Charles Hurwitz seems to be enjoying the Office of Thrift Supervision's ongoing hearing on the collapse of United Savings about as much as he enjoyed being pelted with that pie by an anti-logging protester in California about six weeks ago.
The Maxxam chief acknowledged as much in a jaunty conversation with OTS special enforcement counsel Kenneth Guido Jr. in a hallway of the federal building last week, where The Insider happened to be sitting nearby minding his own business and innocently perusing the latest issue of the Press. We overheard Ol' Chip-Chop inform Guido that the OTS action was costing Hurwitz $110,000 a day for attorneys and experts, and that with every day that passed for the proceeding, the already dim possibility of a settlement grew less likely.
Hurwitz also groused to Guido about being characterized by the OTS as an S&L scuzzball, and mockingly warned the agency lawyer that "when this is over, I'm going to sue the government," a vow that drew a scoffing exclamation from Guido.
In one of its last remaining legal actions resulting from the S&L debacle of a decade ago, the OTS is seeking financial penalties from Hurwitz, Maxxam, developer Jenard Gross, former UH chancellor Barry Munitz and three other people. According to the government, they bear prime responsibility for United's collapse, which cost taxpayers about $1.6 billion.
Since the magistrate presiding over the hearing is paid by the OTS, a Hurwitz spokesman claims the procedure is biased and will likely result in an appeal by Hurwitz and the others. Hurwitz's lawyers also have argued the pursuit of the administrative case is actually a thinly disguised effort to force Hurwitz to accept a "debt for nature" swap in which Maxxam would give up redwood forests in California to settle United's debt.
After Hurwitz's conversation with Guido, The Insider introduced himself to the great woodlands Satan and asked Hurwitz about his comment that a settlement with the government was a fading possibility.
"When did I say that?" he deadpanned. Informed that his conversation with Guido had been monitored, he chuckled, "Aw, we were just fooling around with him."
Asked whether he was taking the OTR hearing more personally than the steady stream of invective from environmentalists, Hurwitz grimaced, exposing his ivory rack of baby shark teeth, and replied: "No more personal that what you write about me."
Anybody Got a Card?
A most interesting library is being set up in downtown Houston this week, but access will be extremely limited. Lawyer Dick DeGuerin is coordinating the installation of a "war room" at his office in north downtown, which will house 18 boxes of documents and seven boxes of audio and videotapes comprising the Justice Department's case against the Hotel Six.
DeGuerin represents former port commissioner Betti Maldonado, one of the six people indicted as a result of the federal sting-probe into corruption at City Hall. Although U.S. District Judge David Hittner has not yet ruled on whether federal prosecutors must provide duplicate sets of the evidence to each attorney, DeGuerin's staff is moving ahead in setting up a lending library with controlled access and duplicating equipment for the six teams of lawyers.
According to trial sources, the feds are currently transcribing some 260 hours of tape and audio recordings that will be presented to the defendants in a time-sequenced volume on October 20. While a federal source says the cost of that transcription will be approximately $15,000, a defense source dismisses that figure as "bullshit." According to this source, the FBI routinely transcribes all wiretapping and miked conversations and likely has the entire documentation already on hand.
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In any case, the contents of the DeGuerin reading room should be an eye-popper. It will include 54,000 documents and will be supplemented by the tape transcripts. The government has turned over 175 two-hour videotapes and 460 90-minute tapes to the defense. If the tapes were completely filled with conversations, that would work out to over 1,000 hours.
Of course, the tapes are not likely to be completely filled, but someone's going to have to listen to all of them to make sure. The question of what recordings are relevant to the case is likely to remain a point of contention right up until the scheduled March 9 start of the Hotel Six trial.
In another sting development, David Berg and Joel Androphy have withdrawn as lawyers for former councilman John Peavy Jr.. According to Berg, scheduling conflicts made it impossible for him and Androphy to conform to Hittner's dictum that all of the Hotel Six's attorneys had to be available for the March start of the trial.
The Insider can be reached at (713) 624-1483 or (713) 624-1496 (fax), or by e-mail at Insider@houstonpress.com.