The Toxic Tort Case
A few months later, even before some of his clients concluded that he had sold them out, it would be suggested that Tom Upchurch had faked a heart attack in open court.
Upchurch also would be called mentally unstable and accused of being a flat-out lousy lawyer.
And that's just what his own associates had to say about him.
But in the first week of November 1993, as he prepared to go to trial in a Houston courtroom, Upchurch was still a hero, at least to his clients. There were 850 of them, and they were suing the Hoechst Celanese Corporation, the world's largest chemical company, in Harris County's 215th District Civil Court.
The so-called "toxic tort" trial began as a landmark lawsuit filed in Houston in December 1988, drawing the attention of the New York Times, CBS News and, no doubt, the boards of directors of every major chemical company in America. The mass-action suit alleged that for 35 years Celanese had been poisoning the air, water and soil around its plant in Pampa, a Panhandle town 55 miles east of Amarillo, and causing a wide range of serious illnesses, including the town's unexplained high incidence of Down syndrome.
The trial was to be the high point in the careers of three lawyers: the short, scrappy Upchurch, who had built a successful plaintiffs' practice in Amarillo on his ability to attract clients and build cases; Wayne Barfield, a talented trial attorney from Amarillo who had tried cases for Upchurch in the past; and Charles Haden, a former Fulbright & Jaworski associate who had become a plaintiffs' attorney and was nearing the end of a long career in Houston.
The three had plenty of experience suing big companies on behalf of little people. But, as they often told their clients, they had never confronted such "evil" as Celanese. They insisted that after interviewing doctors, scientists and hundreds of Pampa residents and reviewing a million pages of company documents, they could prove that the chemical giant knowingly had been killing, maiming and deforming its neighbors, and had done nothing to stop it.
By the time the trial opened in the court of Judge Eugene Chambers, the case had been pared down to three select plaintiffs who would test the facts for all 850 men, women and children who were claiming they had been, or would be, injured by toxic emissions from Celanese. There was a retired railroad worker with leukemia who had slogged through spilled chemicals at the plant, a second rail worker who had been diagnosed with malignant lymphoma in 1982, and a third worker whose testimony had been videotaped just before he died at age 40 of a brain tumor.
The stories of the test plaintiffs promised to be compelling. But those stories were to go untold, at least inside the Houston courtroom. That's because from the very start of what was initially projected to be a months-long trial, the toxic tort case was in trouble.
One immediate problem for the plaintiffs was the testimony of a key witness, Al Baxley, a chemical engineer and former Celanese employee. Baxley's role was to explain how Celanese was aware its processing of chemicals created toxic emissions, and, therefore, was liable for damages. But the cross-examination by Celanese lawyers was tearing holes in Baxley's allegations about the level of emissions from the plant and how dangerous they were. The corporation's lawyers also were enjoying some success at portraying Baxley as a disgruntled ex-employee with an ax to grind.
"It was easy to show," one of Celanese's attorneys recalls. "And I was having a helluva good time."
The fun only lasted a short while.
One morning about two weeks into the testimony, the color drained out of Upchurch's pink, boyish face. With a quiet gasp, he slumped over onto the counsel table, his head coming to rest in his hands. Chambers ordered a recess for the day to allow Upchurch to visit a doctor.
Upchurch was back in court the following morning. But after that, what little fight remained in the plaintiffs' team was used not to try the case, but to stop it. The lawyers accused Chambers of falling asleep during testimony. They charged the judge with being biased and tried to have him recused. They asked for a mistrial on a technical matter; it was denied.
Still, while everyone sensed the plaintiffs' case was foundering, no one expected what happened next: on December 1, the three attorneys filed a motion asking that the test case against Celanese be dismissed. A few weeks later, they agreed to withdraw the claims of all 850 clients -- including 91 who had filed a separate action against Celanese in Sweetwater -- in exchange for $25 million from Celanese.
"You could have knocked me over with a feather," says George Butts, an Austin lawyer who was a member of the Celanese defense team. "I felt like we were just kinda getting started."
He wasn't the only person surprised by the abrupt end of a case six years in the making, one in which the plaintiffs had been told by their attorneys that they were due anywhere from $500 million to $1.5 billion for their pain and suffering.
Celanese attorneys and others familiar with the trial say Upchurch, Haden and Barfield realized they could never prove Celanese was responsible for the sickness and birth defects they claimed were rampant in Pampa. And even if they could point to a few compelling cases, an overwhelming majority of their clients were healthy -- aside from some dermatological and respiratory ailments common to Panhandle residents.
But the real story of the toxic tort case is much more complex. And, to what likely will be the eternal regret of Upchurch, Haden and Barfield, that story has been preserved for posterity, thanks to hundreds of hours of taped conversations between the attorneys and their clients.
Like the black-box recordings of a doomed jetliner's flight, the tapes trace the case from its early promise of great riches to its crash-and-burn ending in a Houston courtroom. Made by several clients, the recordings begin in the spring of 1989, when Upchurch orchestrated the formation of an environmental advocacy group to drum up more plaintiffs. The final recordings were made last summer, while a frustrated and angry Barfield struggled to dole out approximately $15 million to the clients, many of whom were also very angry (the other $10 million went toward attorneys fees).
The recordings offer a revealing, in-their-own-words glimpse of three personal-injury lawyers in action. Depending on how you read them, transcripts of the recordings can portray a trio of impassioned idealists who, as Upchurch once put it with characteristic verbal clumsiness, were delivering "a striker blow for freedom" but who, in the end, just couldn't make their case -- though they did manage to put a little money in their clients' pockets.
Or, as some of their onetime clients are now alleging, the transcripts reveal the lawyers as shameless shysters who swept into a small Texas town and struck terror into the hearts of the populace with horrifying images of painful, chemically induced deaths -- all in pursuit of a big payday. And then, when crunch time came and their case was about to be exposed as a sham, they abandoned their clients and made off with millions in contingency fees.
Which interpretation is correct will be determined -- where else? -- in court. A handful of clients have filed fraud and malpractice suits in Harris County against their former attorneys. About 75 others are considering doing the same. And two of the three attorneys, Upchurch and Barfield, are suing them back, charging their former clients with "civil conspiracy."
But as the Houston lawyer representing the angry clients suggests, it will be difficult to add anything new to what's already on tape about the toxic tort case.
"It's like true confessions," says Larry Doherty. "We've got a degree of honest candor you just can't get anywhere else."
DROPCAPPampa, a predictably dusty Panhandle town with an unexpected charm, was founded at the turn of the century and grew to be the heart of the booming Gray County oil patch. By World War II, the industrious little town also had emerged as a major producer of wheat, beef and gun barrels manufactured at the Cabot Corporation plant.
As with dozens of other small Texas towns, however, the collapse of the oil economy in the 1980s brought hard times. Pampa's population, once near 30,000, has dipped to under 20,000. Newtown, a small-town variant of urban sprawl in northeast Pampa, is a sad reminder of an errant optimism. A shopping mall stands largely vacant and the suburban-style strip centers are battling downtown merchants for survival. Even Cabot, which retooled after the war to produce portable drilling rigs, is nothing like it once was.
One reliable feature of the local landscape is Celanese, whose Pampa plant, built in 1952, looms west of town like a gaseous Emerald City. Spread across 750 acres of prairie as flat as a tabletop, it produces 500 million pounds of acetic acid a year, along with 18 other chemicals for use in paints, adhesives and solvents. Celanese is the region's largest employer, paying more than $25 million in wages to about 600 employees and spending $80 million more on local goods and services.
"Pampa," he explains, "would be nothing without it."
On November 14, 1987, a ruptured pipe inside the plant spewed hot liquid butane into the air, creating a vapor cloud that caught fire. Two explosions ripped through the plant ten seconds apart, shooting flames 250 feet into the air and shattering windows in Pampa, six miles away. Three workers died and about 40 others were injured in the blast.
The deaths and destruction, which shut down about 75 percent of the plant, stunned Pampa. Most everybody in town knew someone who worked for Celanese. Even as the town mourned the victims, rumors were circulating that the company wouldn't invest the tens of millions of dollars needed to rebuild the plant.
"They're a worldwide corporation. They could put that plant almost anywhere, so that was always a possibility," says Jeff Langley, onetime managing editor of the Pampa News and now an editor at the Amarillo Globe-News.
Three weeks after the explosion, townspeople packed the high-school football stadium for a rally urging Celanese to rebuild. Politicians read speeches, school bands marched and residents waved signs in support of the chemical company, which at that point had committed to reopening only a portion of the damaged plant.
But while Pampa united, outside elements were descending that would later divide the town.
"There were some horrendous things that went on immediately after the explosion that, frankly, didn't make me proud to be a lawyer," says C. Vernon Hartline, who at the time was a partner with a Dallas law firm that defended Celanese in litigation following the explosion.
Hartline says lawyers from across the country "literally harassed" the widow of a man killed in the explosion "to the point where I went out and bought her an answering machine so she wouldn't have to answer the phone. It was a pretty sad commentary, from what are really good people that were not used to what we see all the time and take for granted in the big cities."
One of the first post-explosion lawsuits against Celanese was filed in December 1987 in Harris County by Charles Haden. Under Texas law, he was able to bring the suit in a county 600 miles from Pampa because his client, Bob Wilson, was a Houston resident who had been living temporarily in Pampa and working at the Celanese plant when it exploded. Haden's lawsuit immediately attracted the interest of Amarillo lawyers Tom Upchurch and Wayne Barfield, who were in the process of gathering clients in Pampa for their own action against Celanese.
The three attorneys formed a joint venture that also included Haden's Houston associates, John Palisin and Marc Linsey. In December 1988, the new partners amended Haden's negligence suit to include allegations that Celanese had been releasing toxic chemicals and by-products into the environment that had been causing cancer and birth defects in area residents since the plant opened. The suit, which asked for an unspecified amount of damages, was filed on behalf of contractors who worked in the plant, people who lived nearby and area children born with birth defects.
Hartline says there's a simple reason the case was pursued in Houston. In Pampa and Gray County, he says, "there was a huge sentiment at the time that anybody that sued the company would not get the fairest of trials. And there was also a huge sentiment at the time that Harris County juries would give away the farm."
Over the next five years, until it finally came to trial in Chambers' court, the lawsuit went through several permutations. In September 1990, it was split into two cases: one for those affected by the explosion and another -- which became known as the "toxic tort" case -- for those claiming illness through longtime exposure to emissions. In December 1990, the explosion half of the suit was settled out of court, leaving the toxic tort case as a separate suit.
In a third lawsuit, known as the Kingsmill water case and filed in Sweetwater near Abilene, Upchurch, Barfield and Haden sued Celanese in August 1992 on behalf of the residents of Kingsmill Camp, a tiny village a quarter-mile north of the plant, who had learned their community-owned water well had been contaminated with benzene.
The three lawyers were the only constant players on this shifting field of litigation, and as the case wore on they were to provide moments of high drama, low comedy and, in the end, when they couldn't stand one other, a destructive pathos.
There was the bombastic, hard-driving Upchurch, known as "Redbird" in Amarillo for his flame-colored hair and love of Lear jets. A World War II buff, Upchurch became so obsessed with beating Celanese, which he often compared to Nazi Germany, that when it all fell apart he threatened to kill himself.
Then there was the charismatic Barfield, who, his secretary once observed, "can get a whole lot of things done" because "he's got a way about him and these women just roll over." But Barfield was frustrated by Upchurch's apparent unwillingness to let him loose in the courtroom, where his skills had made him such a success in Amarillo. After the trial, it became Barfield's nearly impossible duty to dole out $15 million to the clients, many of whom, he would be forced to admit, didn't have claim to a penny.
Charlie Haden -- known in Houston legal circles as the "Tiger" for his tenacious courtroom manner -- seems a bit out of place in this legal triumvirate. A Sunday school teacher known for reciting lengthy passages of Scripture from memory, Haden retired after the toxic tort case. Perhaps because he lived and worked so far away from the plaintiffs, his role in the toxic tort case was less clearly defined. He had told his clients that he was in charge of gathering and presenting the medical proof that they had been poisoned. Despite his frequent comments to the contrary, he never had that proof.
As for their clients, it's safe to say that before November 1987 most of them had little need for attorneys, nor did they consider it likely they'd ever get something for nothing. They were apparently convinced otherwise on both counts, and the great majority of them eventually took their settlements and went away, if not happy, at least not angry enough to sue their former attorneys.
Dozens of them didn't, however. Though they also received some money, it wasn't enough to overcome the suspicions that made them tape record what their lawyers told them.
And win or lose, perhaps they all had a right to expect more.
"I trusted them," says one former client. "I thought they were the greatest. They were my heroes."
DROPCAP:By February 1989, shortly after amending the negligence suit in Harris County, the three lawyers had more than 200 clients who thought they had been exposed to toxins from Celanese. On a cold Panhandle morning, Upchurch made a thinly veiled appeal for more in a 30-second interview on Amarillo's Action News 4.
"I think we will prove ... that a number of leukemia cancers are really the result of the fallout and the emissions of all these years from the Celanese plant," Upchurch declared. "It's in your water supply up here. So, as a class of people, we believe anyone exposed to this, by the suit we have filed, is potentially at risk."
No one had ever tried to link health problems to Celanese before, though the plant certainly had given people cause for concern. Even before the explosion, the Environmental Protection Agency cited Celanese for violating air pollution laws. That came on the heels of a report by the Texas Department of Health and the Federal Centers for Disease Control that said the number of children with Down syndrome born in the area was "significantly more than expected." Neither agency could identify a cause.
The explosion opened the door for other state and federal investigations of the plant, and some of the findings raised more questions. The federal Office of Safety and Health Administration determined one cause of the explosion was "willful violation" of established safety procedures.
One Pampa resident who saw Upchurch's brief television appearance was Karen Sue Son, a 38-year-old mother of two girls, aged 13 and seven. Son, who grew up in Borger, 25 miles west of Pampa, was diagnosed with lupus in 1985. While she won't say that she believes toxic emissions brought on the disease, which causes heart and kidney problems, she clearly considers it a possibility.
Son is unequivocal, however, in her belief that the Celanese plant can make people frightfully ill.
"I remember being three and four years old and being with my grandparents and driving in front of this plant and breathing and coughing all this stuff and then vomiting," says Son, who moved to Pampa in 1980.
After seeing Upchurch on the news, Son wrote to the attorney, thanking him for standing up to Celanese. A few days later she was visited by an investigator working for Upchurch, who had her fill out some medical history forms. She also signed an agreement making her a client of Upchurch, Barfield and Haden.
But the bulk of clients who signed up with the three attorneys did so through a group called Advocates for Acid Rain. Ostensibly, the group -- which despite the name was against acid rain -- was formed in early 1989 by community activists to provide information on possible health dangers associated with Celanese.
On paper, the leader of Advocates for Acid Rain was Carolyn Hood, a resident of Kingsmill Camp, a collection of trailers and small houses separated from the Celanese property on the south by a chainlink fence and U.S. Highway 60. However, recordings made by Hood and others show that the Advocates for Acid Rain was in fact the brainchild of Tom Upchurch, who wasn't getting the response he wanted on his own. (For some reason Upchurch originally had wanted to name the group the "Circle of the Reindeer," a name, he later joked, that was "too cute" and might have landed him in jail.)
"I'm surprised more from Pampa are not involved," Upchurch told Hood during a March 1989 phone conversation. "Why we haven't been able to do that, I have no idea ... There are more people dead and dying from up here." Upchurch instructed Hood to "get with your other biddies ... [to] set up any kind of organizing committee that will call and stress on people to come."
Later that month, Upchurch outlined to Hood how the meetings would work. "We are getting some paper made up and we're going to print off of our computer ... It's going to be called the Acid Rain Advocates Group ... and you're executive assistant. We're going to print your name on it and bring this stuff up. Then we'll bring our contract forms up."
He promised "a very interesting evening."
But Upchurch seemed concerned that people might get the wrong idea. He told Hood that the meeting was not to start until he got there because "I'm the only one that knows what this is about."
"I won't say anything until we get there and I'll get permission from the people," he said. "So that no one can say that we're trying to mislead or frighten or do anything. It will be very carefully done."
The avowed purpose of the meetings was to make people understand how deadly it was to work at and live near the Celanese plant. Karen Sue Son says she remembers a meeting at which Haden spoke of "a bloody door" that the chemical company didn't want opened. Behind it, he said, were the secrets of how Celanese was "killing people."
This was a new concept to Pampa and communities around the plant. They had never had much reason to fear Celanese, which had quietly gone about its business on the prairie for three decades. Upchurch, however, repeatedly insisted that Celanese had already caused many deaths and serious illnesses -- though there was no evidence of it at the time. He told Hood that "the railroad workers death rate is enormous." Before long, he added, "you're going to start to hear where people are going to start dying."
Upchurch was particularly inspired at an April 1989 gathering at the library in Pampa. Apparently, the attorney had heard rumors that some Kingsmill Camp residents were thinking of selling their property to Celanese. He strongly advised them not to, saying doctors would prove that their health had been damaged by emissions from the plant. If some of them sold their land, he said, it would hurt the case for the rest.
The attorney then launched into an emotional appeal, suggesting that if the clients weren't going to stay in the suit for their own well-being they should consider doing it for the greater good.
"We are brave, Wayne Barfield and I and old Haden up there. We are three small people. Three small lawyer voices. We're not anybody of any great importance or significance. In our area, we do the best we can, but we are like a rock, and the water goes around, but you can't budge us.
"And the day the world finds out what's under this earth, you're going to have a state and a nation that's going to rise up in indignation, and Celanese will be through."
In fact, there was already a sense of indignation spreading through Pampa that had nothing to do with toxic emissions. Downtown, at the Coney Island Cafe, where a piece of homemade pie costs 80 cents and everything off the grill comes doused in chili, the lawsuits became a daily topic of conversation. Many of the ranchers, oil-field roughnecks and local movers and shakers who squeezed into the tiny booths for lunch were disgusted by the suits, which they feared would drive Celanese away from Pampa.
"Those greedy people out there saying you poisoned my ground water. Well then, why live out there," says Coney Island co-owner John Gikas. "I know that if I felt any danger from Celanese, I wouldn't be here."
Lilith Brainard worked at the Celanese plant from 1952 to 1958, and says she'd be working there today if she were younger. The company treats people like family, she says. Brainard points out that the plant is built on a site where oil field workers once buried old storage tanks, which might explain the presence of benzene in the ground water.
"You can't blame Celanese for everything that's ever happened," she says. "Our society has become lawsuit happy. My reaction was, those people don't know all the facts. When you don't know all the facts, you're easily persuaded into thinking you can get something for nothing. They knew there wasn't a problem. They just wanted the money."
To Upchurch, Barfield and Haden, such pro-Celanese sentiment reflected the company's pervasive influence in Gray County. They saw conspiracy and cover-up behind every development, and they often warned their clients to beware of wiretaps and company spies. Upchurch in particular was sensitive to the media's treatment of the case. When it was bad -- as it often was in Pampa -- he blamed it on Celanese propaganda and threatened to drag reporters into court.
"These are the most evil people God put on this earth," Upchurch said of Celanese. "The Nazis ... don't know anything to the evil of these no-good people."
Haden reiterated that sentiment at one meeting of Advocates for Acid Rain. "The evil empire over here poisoned the environment, and it hurt our people," he said. "It hurt their property, it hurt their bodies, it hurt their minds."
Haden also passed along what he indicated was frightening evidence accumulated by the doctors and medical experts working on the case. He suggested tests had found "anomalies in the vital organs" that might indicate "toxically induced" cancer.
"Some of you don't know how badly you have been injured," he said. "We are beginning to pick things up on these medical blood tests and X-rays ... For example, the liver counts are real high. I am not going to call any names out, but you will be told."
DROPCAPSuch frightening scenarios, issued relentlessly in phone conversations and meetings, had planted a seed of doubt in and around Pampa. Within a year, the three attorneys had more than doubled their list of clients to about 550. Certainly some of them were sick, with cancer the predominate affliction. But you didn't have to be ill to be a party to the lawsuit, as the lawyers often stressed.
"What we're going on right now is just the fear of cancer," Upchurch explained at an Advocates for Acid Rain meeting. He assured everyone that the possibility of contracting a disease constituted "a very real fear" that justified suing Celanese. And the beauty of it, he insisted, was that any evidence that Celanese had ever harmed anyone was not required.
"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.
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.
Barfield urged the clients to accept the offer. He explained that all they really had on the railroad were a couple of workers who said they had seen chemicals dripping from a few boxcars.
"That case is tremendously weak," Barfield said. "We would be looking like we were fools to say this ... this sly activity of the railroad was what caused all this harm."
But there were other reasons his clients needed to agree to the settlement, Barfield stressed, the main one being the "insurmountable" financial demands that threatened to sink the toxic tort case. He told them that an Amarillo bank was pressuring the plaintiffs' team for $1.1 million "immediately" and that the lawyers owed $700,000 in unpaid expenses.
"We have notes coming due on November 15," he said. "We have never paid any of the court reporters in this case and they are threatening to sue us ... We have experts in this case that are saying, 'We expect to be paid up front and we're not coming to testify if we don't get paid.'"
Among the experts yet to be paid was the plaintiffs' key liability expert, Al Baxley, who was scheduled to begin testifying when the trial resumed two days later. The attorneys also owed about $100,000 to two medical experts who were also set to testify.
The bottom line, Barfield told his clients, was this: "We desperately need the $2 million to pay the people and pay these experts and to pay these bills ... If anyone is not willing to sign this agreement, then we're all finished."
If Barfield sounded desperate, it may have been because, at least the way he made it sound, the attorneys had already signed the settlement agreement, accepting the $2 million before getting approval from the clients. When one of the clients asked about the deadline for the settlement, Barfield replied:
"It's not a deadline situation. We've signed. We have had to sign our names on the agreement as attorneys and promise with our bar licenses that we would get this done. It's one of those deals where you have to take the risk ... You either make a decision or you're going to get murdered anyway."
In fact, Barfield had an inkling they were about to get murdered in the toxic tort trial as well. He told the clients that Celanese had "every major doctor in the world to come in and say you are not injured by these chemicals." He told them that the company controlled Baylor College of Medicine and "entire medical complexes in Chicago." He admitted to them that their own medical experts "can't match up."
Testimony began two days after Barfield's meeting with the clients and continued for about three weeks. It was interrupted frequently, including the day that Upchurch turned red and collapsed onto the counsel table. On November 30, the plaintiffs' attorneys filed motions for a mistrial and to have the judge removed from the case. Chambers denied the request for a mistrial and, after some prodding by the Celanese attorneys, appointed another judge to hear the motion for recusal. It was denied, even though the two living test plaintiffs testified that they had seen Chambers nodding off during testimony.
That evening, Barfield met with Celanese attorneys, who appeared confident that the plaintiffs were headed for defeat. Apparently Barfield felt the same by the time he left the meeting to join Upchurch, Haden and the two plaintiffs.
"It looks like the fix is in," he later recalled saying that night. "And I think we're going to lose the entire case."
The following morning, less than a month after the trial began, Upchurch, Barfield and Haden asked that the case against Celanese be dismissed. Before the month was over, they negotiated the $25 million settlement from Celanese in exchange for the dismissal of all 850 toxic tort claims. They also agreed to drop the Kingsmill case in Sweetwater.
DROPCAP:Once the trial was over, it didn't take long for the finger-pointing and backbiting to begin. A few weeks later, a frustrated Barfield blamed Upchurch for their failure to prove the case. Upchurch had been "absolutely sent home with his tail between his legs because of his ineptness," Barfield claimed to one client. "I mean, if you haven't seen what the man can do and how he can destroy people and destroy claims, then you haven't kept your eyes open."
Barfield fumed that Upchurch did not allow him to present the evidence they had gathered and wouldn't let him question a single witness during the trial. Instead, he said, Upchurch "came to that court with the idea that he was going to be the hero."
Haden, likewise, tried to pin the blame on Upchurch. The Amarillo lawyer "fell on his face in Houston," Haden said. He told one client that Upchurch lived in "a fantasy world."
Indeed, Upchurch's mental state was raised more than once by his associates in their explanations for the collapse of case. Barfield's son, Brooke, a lawyer who assisted on the case, told a client that Upchurch needed "help."
"It's like that routine in Houston, falling down and collapsing in the courtroom and then it ends up, there's nothing wrong with him... I know he used to be a very competent lawyer, but I'm afraid he is not dealing with a full deck, and that is what Wayne and Charles have asked me to say." (Despite Brooke Barfield's assertion, one of the Celanese attorneys in the courtroom the day that Upchurch collapsed said he believes the lawyer was fatigued and was actually ill.)
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."
Doherty is seeking damages for his clients equal to the amount that the three attorneys estimated they would get for them from the toxic tort case. In some cases, that is as much as several million dollars.
"All my clients are saying is, 'You're right. You scared the hell out of me. I believed you and you sold me out,'" Doherty contends. "It's a fair assumption that they're still confused and still afraid of what the future holds for their health. The mental anguish their attorneys caused them is still having an effect."
The great majority of the 850 clients, however, have apparently gotten over their mental anguish. One of them is Ray Christensen, a 69-year-old World War II veteran who says doctors have told him he might have prostate cancer. He already has congestive heart failure, he said, an illness that also afflicted his father, who lived in Colorado his whole life and died in an auto accident.
It was Christensen's heart condition that got him into the lawsuit, even though doctors told him the plant didn't cause the illness. He figures he got a good deal with the settlement. He doesn't plan to sue his former attorneys.
"We got enough to buy another home free and clear, and that's what we wanted," Christensen says. "We didn't expect some huge sum of money. Some felt they should have gotten more. There was an attitude of greed from some people."
Karen Sue Son did not accept the settlement. She was infuriated by its terms, which included the return to Celanese of all the documents that supposedly proved the company had poisoned the environment around Pampa. It also stipulated that no client would file another lawsuit against Celanese, even if they could prove the plant had made them sick. That was unacceptable to Son, who fears for the health of her two young daughters and her neighbors.
"When they sold those documents back and nobody else can talk about it, it's like it's been all covered up," Son says. "I mean, what's the truth? Are we really in danger here, or is it just something that Upchurch and them just concocted? I really think there is a problem, but Celanese is getting away with it. And my lawyers helped them do it."
Bill Kilgarlin, the lawyer who was the special master in the case, agrees with Son on one point: that for all the time, trouble and effort that went into the suit, no one ever discovered the one thing that matters: the truth.
"As far as I'm concerned, any money that Hoechst Celanese paid was a pure gift, based on the evidence that I heard," says Kilgarlin. "There were several Down syndrome cases, and my heart goes out to them. But I have yet to hear any evidence relating and chemical toxicity to Down syndrome. If they had it, they didn't present it."
Son would seem to be a perfect candidate to join Doherty's malpractice action against the three attorneys. But that suit also alleges that the toxic tort case was a fraud. Son, after meeting with Doherty, was informed that he was not interested in having her as a client. Son says Doherty told her that she wouldn't be able to trust him.
Doherty says he just made a "professional decision" not to represent Son. But he acknowledges that there's "no dissension amongst my clients" -- meaning they all agree the lawsuit against Celanese was frivolous.
Maybe it was, says Ray Christensen, and maybe it wasn't. But another lawsuit won't prove anything, he says. It just keeps the toxic tort case alive, a prospect that reminds Christensen of something his grandfather once told him.
"These people digging into this again, they're not going to get anything but a bad odor.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you’ll never miss Houston Press' biggest stories.
- How Ken Paxton Became the New Supervillain of Texas Politics
Sat., Sep. 5, 12:00am
Sat., Sep. 5, 12:00pm
Sat., Sep. 5, 2:30pm
Sat., Sep. 5, 6:00pm
- Texas A&M Finds Radioactive Thingy it Lost The Other Week
- Does Houston Have the Right to Enforce Clean Air Laws? The Texas Supreme Court Will Decide