The Lawsuit from Hell
Three thousand plaintiffs, five hundred defendants, three hundred lawyers, and no evidence: An endless East Texas courtroom battle over “chemical AIDS” is a case study in what’s wrong with our legal system.
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FEW PLACES IN TEXAS ARE more humble than Daingerfield, a town of 2,655 residents hidden away in the rolling hills of Northeast Texas. Many of the downtown storefronts are abandoned. The parking lot at the bank is usually empty, and the movie theater tries to stir up business with 99-cent admission. Each day, a couple of Kansas City Southern trains pass through the middle of town. They never stop.
Just on the other side of the railroad tracks, however, is Daingerfield’s lone symbol of affluence—a two-story, 120-year-old building that cost at least $1 million to renovate. Every brick on the building has been cured in an open-pit fire for historical authenticity. A white gazebo stands on one side of the building, and a flowing fountain and garden are on the other. Inside the lobby are Oriental rugs, elegant swooped-back chairs, and lighted glass cabinets holding Native American pottery, and a staircase right out of Gone With the Wind leads to an office on the second floor. There, a kindly looking 56-year-old man, five feet eight inches tall, sits behind a desk the size of a billiard table. The man’s name is Harold Nix, and he is one of the richest and most feared plaintiff’s attorneys in Texas. “I suppose,” he says in a drawl as soft as cotton, “you want to know why everyone is cussin’ me.”
In 1987, when he was barely known outside this corner of the state, Nix began suing companies from around the country that had shipped chemicals and other products to Lone Star Steel, a large steel mill located a few miles from Daingerfield. He argued that these products were toxic and that the companies—from Fortune 500 giants such as Exxon to a tiny machine shop near Daingerfield—had caused Lone Star employees to come down with a host of illnesses and life-threatening diseases. By 1988 he represented more than three thousand workers and ex-workers—some of whom had worked at the plant for decades, others for just a few weeks—and by 1990 he had named 538 companies as defendants in the lawsuit.
If ever there was a case that seemed destined for a chapter in a law school textbook about frivolous lawsuits, Sam Fowler, Jr., et al. v. Union Carbide Corp., et al. was it. Although some Lone Star employees were obviously sick, it soon became clear that Nix didn’t yet have a shred of evidence directly linking any of their diseases to any products that had been shipped into that plant. Nor had Nix found a single medical expert willing to verify his theory that the various chemicals shipped to Lone Star had combined to create what he described in court filings as “chemical AIDS,” a condition that “reduced and in many cases destroyed the body’s ability to attack and fight off sickness, disease and death.”
But Fowler began to take on an eerie life of its own. Scores of expensive defense attorneys, a few charging their corporate clients more than $400 an hour, headed to Daingerfield to do battle with Nix. Depositions were taken, interrogatories filed, motions for summary judgment requested. So many lawyers arrived for one hearing that the judge had to set up his courtroom in the Daingerfield High School auditorium. The pretrial legal papers piled so high that they overflowed the filing cabinets at the district clerk’s office in Morris County (where Daingerfield is located) and were stacked in an unused cell at the county jail.
Today, nearly a decade after the lawsuit began, Fowler has become the largest mass products-liability lawsuit in the United States, a maddening morass of litigation that has ensnared hundreds of lawyers and generated untold millions of dollars in legal fees. Although the case has produced more than three million pages of documents, not a single trial has been scheduled for any of the three-thousand-plus plaintiffs, and no one is able to say when—or whether—a trial will ever be scheduled. The attorneys periodically gather for hearings to rail away at one another, each side accusing the other of suppressing evidence and delaying the case. “It’s a nightmare,” said Judge B. D. Moye, the embattled state district court judge who presided over the case from its inception until his retirement last year. “That’s what it is—a procedural nightmare.”
In the nineteenth century, Charles Dickens’ epic novel Bleak House told the story of the endless lawsuit known as Jarndyce and Jarndyce—a venomous case that was so confusing even the participants never knew what it was about or how they could get it resolved. Jarndyce and Jarndyce was fiction: Dickens used it as a metaphor for a society that had lost itself to squabbles, cynicism, and contempt. But Fowler is real. Even though almost nothing is happening, the defense lawyers keep billing their clients—many of them major U.S. corporations—top-dollar fees, and Nix rakes in a fortune. His firm has taken an estimated $26 million of the $69 million in out-of-court settlements from various companies that have surrendered to his demands. Yet he still cannot show if the workers’ diseases were caused by specific products shipped to Lone Star Steel.
I started coming to Daingerfield last fall—and would return half a dozen times more—to try to understand how a single lawsuit in an isolated East Texas town could ignite such chaos in corporate boardrooms across America. What I found was a case study in the way the American court system allows lawsuits to fester at the expense of justice. Because of vaguely written laws governing civil procedure, and because of judges who are unwilling to set stringent evidentiary requirements in their courtrooms, smart lawyers can slow the progress of a civil dispute to an almost imperceptible crawl. For what they often believe are the most noble purposes, plaintiff’s lawyers resort to duplicity, delay, and bare-knuckled legal brinkmanship to try to force a company to settle. Defense lawyers use the same tactics to keep a lawsuit away from an unpredictable judge and jury.
“I think you’ll find that I’m trying, as best I can, to help some people who are suffering,” Harold Nix said when we first met, patting me gently on the shoulder. “I genuinely believe that the more you study this case, the more you’ll be surprised at what you find.”
On that last point, at least, truer words could not have been spoken. Little did I know that I was about to enter a legal world turned upside down, one devoted more to the language of blame than to the painstaking search for truth.
FOR A FIRST-TIME VISITOR TRAVELING THROUGH THE PINE-LADEN lushness of East Texas, the Lone Star Steel plant can be a jarring sight. Spread over ten acres next to the pristine Lone Star Lake, which adjoins Lake O’ the Pines, the plant is an ancient collection of gymnasium-size buildings and furnaces, all mottled by dust and heat, the sides of the buildings so stained with rust that they have turned the color of tobacco juice. Years ago, Lone Star Steel was one of the largest industrial operations in this part of Texas—a manufacturing plant that mined ore out of the nearby hills, fired up massive ovens to create coke, and then forged steel in blast furnaces and open hearths that reached 5,000 degrees Fahrenheit. During the oil boom of the late seventies, when the plant made much of the well casing for the Texas oil fields, nearly six thousand employees toiled at Lone Star, equal to half the population of Morris County. But when oil prices plunged, Lone Star’s business disappeared, and by the mid-eighties all but nine hundred workers had been laid off. Residents were anxious, jittery, looking for someone to blame. In other words, the environment couldn’t have been better for a lawsuit.
Everybody in Morris County knew Harold Wayne Nix. The eldest of six children in a very poor family—his father, who had a second grade education, worked as a tenant farmer and log hauler—Nix worked his way through college, married a friend from high school, received a full scholarship to Baylor Law School, and after graduation in the mid-sixties turned down job offers from Dallas and Houston firms and returned to his hometown of Daingerfield to open his one-man firm. For Nix, the practice of law in East Texas was a glorious calling. The area was home to some of the state’s greatest plaintiff’s attorneys—old-fashioned populists such as Franklin Jones, Sr., of Marshall, Nix’s hero, who relied more on impassioned oratory than on the complicated scientific testimony favored by the new breed of plaintiff’s attorneys. What’s more, the jury pools were a plaintiff’s dream: blue-collar, union-supporting citizens who weren’t unsympathetic to the idea of a lawsuit against a big corporation.
Nix was the classic country lawyer—a courtly man “who never missed a funeral or a wedding in Morris County,” one defense attorney told me. His reputation grew when he won some money for a worker whose leg got cut off at a sawmill, and in 1978 he won $1.2 million for a client who suffered brain damage in an automobile wreck. But because Nix, like all other plaintiff’s lawyers, made his money on contingency fees (he shared part of the award that his client received from a jury or in a settlement), the only way to make big money was if he found defendants with especially deep pockets.
In the seventies Nix had been watching the work of some East Texas plaintiff’s attorneys who had been suing the manufacturers of asbestos, a potentially carcinogenic material that was used for insulation. In what was then a relatively new area of law, called toxic torts, the lawyers would load up their cases with hundreds of plaintiffs, all of whom said they had been harmed by their exposure to the product. How many of these plaintiffs were really sick from asbestos exposure? No one knew. But few asbestos manufacturers were willing to take their chances with a trial in a small, working-class East Texas county. Many of them ended up settling out of court for millions.
The East Texas asbestos cases taught every lawyer in the country that it was not necessarily the facts that mattered in winning or forcing a settlement of a products-liability case. It was the number of plaintiffs who could be rounded up to sue. Nix, however, was about to make an even more intriguing proposition. What if a lawyer could devise a lawsuit that involved a large number of plaintiffs and defendants? Obviously, the more companies there were to sue, the more lucrative the case could be.
Nix did not go looking for this Holy Grail of plaintiff’s lawsuits. The case came to him in the form of an elderly widow who tottered into his office seeking compensation for the death of her husband, a former Lone Star Steel worker who had died from lung cancer. It was no secret in Morris County that some former Lone Star Steel workers had developed breathing problems, especially those who had spent their careers around the stupefyingly hot, smoke-belching furnaces and ovens. “It seemed like we saw an abnormal amount of bronchogenic or lung cancers from the plant employees over the schoolteachers and farmers,” said Donald R. Smith, a longtime Morris County physician. However, no epidemiological study had been conducted to support Smith’s opinion, and other doctors said that it would be almost impossible to determine the exact cause of former plant workers’ breathing problems. Many of them, for example, had smoked cigarettes most of their lives.
Undeterred, Nix began visiting with other widows and with ex-Lone Star employees. As even his fiercest critics acknowledge, Nix genuinely cared about Morris County’s downtrodden. Many of these people were his old classmates or former neighbors who had lost their jobs during the layoffs. They looked upon Nix as a sort of rustic Caesar; he was the only man in the county who could help them. But how? He knew that if he filed simple workers’ compensation claims for these employees or their widows, the amount of money would be limited by a formula established by state law. The other problem was that Lone Star Steel was nearly broke. What was the point of suing a company if it didn’t have any money?
Then Nix got the break of his career. He was told that Lone Star had kept 14 million pages of purchase orders since 1948 that listed all the products that had been shipped to the plant and the names of the companies that had shipped them. A cursory glance at the records from past years showed an array of potentially dangerous products and chemicals coming into the plant—heavy metal alloys such as nickel and chromium, potentially lethal solvents like benzene, and yes, asbestos and even sand containing silica (another potentially carcinogenic substance, which was used in specialized heat-resistant bricks).
That was all the information he needed. In prose fit for a Stephen King novel, Nix wrote his now-famous “chemical AIDS” lawsuit, charging that the substances sent to Lone Star Steel had created “a visible fog or mushroom-shaped cloud of pollution made up of toxins, fumes, particulates such as silica and asbestos fibers, gases, hot top compounds, and many other hazardous substances which continually formed and hovered ominously over the plant work area. The chemical fog would creep in ever so quietly on little cats’ feet, do its damage to the unsuspecting worker, and just as silently disappear.” Whenever a worker took a breath of “toxin-contaminated air” at the plant, “a time bomb was slowly ticking away within the worker’s body cells. The clock is still ticking for many.”
Initially, he filed individual lawsuits on behalf of the survivors of 26 Lone Star Steel workers, with each lawsuit suing 31 companies. But word spread through the local steelworkers union hall that Nix would be more than happy to file additional lawsuits. He would even file lawsuits for perfectly healthy ex-workers, saying they deserved long-term “medical monitoring” expenses to pay for doctor’s visits to spot a Lone Star Steel-related disease that might appear in later years. To comply with the state’s civil statute of limitations—which gives a citizen two years from the day he learns about the cause of his injury to file a lawsuit against the party that allegedly caused it—the plaintiffs signed almost identical affidavits saying that it wasn’t until 1987 or 1988 that they learned that Lone Star’s products were the source of their problems, even if those problems occurred forty years ago.
It wasn’t long before as many as seventy people a day were showing up at Nix’s office. He added lawyers—he eventually hired ten—to handle the crush. Some of those who asked to become plaintiffs were no doubt terrified that their colon problems or chest pains were a result not of old age, as they had always thought, but of this so-called chemical AIDS. Others who were afflicted with lung diseases truly believed Nix was going to uncover the proof of why they were suffering. But the attitude of many plaintiffs was summarized by Sam Fowler himself, who by the luck of the draw found his name at the top of the lawsuit when Nix consolidated all his Lone Star Steel cases into one. The 74-year-old Fowler said he had no idea whether his 37 years at the plant had led to the two major illnesses he had experienced in his lifetime—a bout of double pneumonia and an ulcer. Nevertheless, he said cheerfully during his deposition, “I heard that they were getting a suit up about stuff that we had breathed out here at the plant, and I figured I had been out there thirty-seven years and I breathed about everything everybody else breathed, and so I wanted to get in on the party.”
And what a party it was. Nix was taking care of everything, without charging the plaintiffs a cent. If any settlement money came in, he would recoup his expenses off the top, and then he and the plaintiffs would split the rest, 40 percent for him and 60 percent for them. Who could complain about a deal like that?
Soon, the list of plaintiffs topped three thousand, at least eighty of whom had worked at Lone Star Steel for less than a year. One plaintiff had worked inside a sterile laboratory at the plant for less than three months in 1945. Another was 94 years old and hadn’t worked at the plant in 28 years. Yet he said his life expectancy had been shortened because of the products he had been exposed to. And then there were family members of deceased workers who joined the lawsuit, alleging that their loved ones’ deaths were caused by the plant’s products. Well, not quite. A few of the men had died in car wrecks, one had been punctured in the head with a spike, another had been drinking and drowned, and one man, Morris “Sonnyman” Wilson, a four-year employee of Lone Star Steel, died after he and his wife, Doris “Dot” Wilson, got in a gunfight in front of the Cotton Choppers Club on Morris County Road. According to a report in the Daingerfield Bee, the last words Sonnyman said were, “I’m shot . . . I’m dead.” Dot, who was no-billed by a grand jury after she claimed self-defense, forgot to mention the gun battle when she asked Nix to add her name to the lawsuit. She said it was the toxins in the steel plant that had killed her husband.
AS FOR THE DEFENDANTS, NIX HAD A SIMPLE WAY of getting them to the party. Whenever Nix came across a company in the Lone Star Steel records that had shipped a potentially toxic substance to the plant at any point during the past forty years, the company would be added as a defendant. That included companies that had provided welding rods (the fumes from welding rods apparently contributed to the toxic cloud), oil corporations that had provided gasoline for the vehicles driven on plant property (gasoline fumes were dangerous too), and even a small company called Gent-L-Kleen Products, which had provided hand soap for the Lone Star Steel bathrooms. “I am still waiting for Harold to explain to me how soap can get into a toxic cloud,” said Jeff Shaver, Gent-L-Kleen’s attorney in Tyler.
Nix and his associates sued without discrimination. They sued a firm that had provided metal folding tables to Lone Star, one that had sent the plant some felt-tip markers, and even one that had been hired to remove waste material from the plant. They sued a Houston contracting company, Fish Engineering and Construction, whose executives had once flown to the plant in their company plane to make a bid on a future project. The executives landed on the Lone Star Steel airstrip, made their pitch, and flew off.
Nix said he sued those companies because he didn’t want to leave out anybody who might possibly have contributed to the toxic cloud, but he was rarely cooperative in dismissing his claims against the wrongly sued companies. “Harold’s sole purpose was to tie up as many defendants into the lawsuit as he could so that he could have the largest lawsuit in the world,” said Jim Cowles, a prominent Dallas attorney who would become one of Nix’s greatest adversaries. Fish Engineering, which didn’t even win its contracting bid, was forced to hire an attorney and pay $11,746 in legal fees to get itself out of the lawsuit. It would take U.S. Pollution Control, the company that removed Lone Star Steel’s waste, nearly seven years and $45,274 in legal fees before it was finally non-suited.
Some of the defendants who had supplied Lone Star Steel with dozens of products over the years wanted Nix to tell them which of their products he believed had contributed to the workers’ illnesses. And the companies that did provide potentially toxic chemicals wanted to know if Nix had evidence that those workers had been exposed to the chemicals at high enough levels to cause illness. Nix, of course, had no idea.
Yet as crazy as it appeared, Nix’s strategy—sue first and ask questions later—was ingenious. He was forcing hundreds of companies to defend a case they couldn’t exactly disprove any more than he could absolutely prove. In a toxic torts case, jurors are forced to decide whether someone’s death or illness is a result of his exposure to a certain chemical—a diagnosis that doctors are loath to make. But according to plaintiff’s attorneys, too many guilty companies wriggle out of such lawsuits by arguing that no absolute medical evidence can be presented to show that their products cause a health problem. “You know that those Lone Star Steel workers didn’t spend their lives out at that plant without something pretty bad happening to them,” Nix said.
And even if Nix couldn’t say who was to blame, the legal system at least gave him the chance to blame someone—or in this case, everyone. “When a lawsuit gets filed in Texas, a company has little choice except to pay thousands of dollars to defend itself, regardless of whether the allegations are true,” said P. Michael Jung, a partner at the Dallas firm of Strasburger and Price and an expert in the rules of civil procedure. “In federal courts, it’s much easier for a defendant to get a lawsuit against him dismissed if the plaintiff hasn’t shown proof of his case within a certain amount of time. But state law jealously guards a citizen’s right to have his complaints heard by a jury.”
From the beginning, Nix wanted the defendants to know they were in for a costly battle. He did not file the standard class-action suit, in which all the alleged victims are combined as a “class” and their case is tried together before a single jury. In Fowler, no two plaintiffs were claiming to have been injured in exactly the same way by the toxic cloud. One ex-worker, for instance, said he had developed pulmonary disease from the dust billowing from a coke oven, and another said he suffered a liver disorder because of the fumes from solvents that he had once breathed years ago. A jury would have to hear each plaintiff’s case separately to determine the severity of his injuries and the amount of compensation he should receive, if any.
In effect, Nix had created 3,026 personal-injury and wrongful-death cases under one umbrella lawsuit: a plaintiff’s lawyer’s vision of heaven. If he lost one case, so what? There would be another one tomorrow. Defense lawyers called the lawsuit the legal equivalent of a black hole. According to their calculations, jurors in each case would be subjected to weeks of scientific testimony concerning the hundreds of chemicals and substances sent to the plant. At that rate, the trials would not be complete for at least a thousand and possibly two thousand years.
Some of the nation’s richest corporations (Union Carbide, Atlantic Richfield, Dow Corning, and Monsanto) and some companies you have never heard of (Ark-La-Tex Custom Coatings, Big Sandy Sand, David’s Gloves) hired Texas attorneys for their defense. All told, the defense team—senior partners at firms, their associates, paralegals, court reporters, and legal secretaries—easily numbered more than one thousand people. A steering committee was formed to supervise the defense’s strategy. A warehouse in Dallas was rented to store the defense team’s legal documents. When it was discovered that there was only one modest thirty-room motel in Daingerfield, a lawyer suggested that the defense buy mobile homes for overnight lodging.
The wheels of justice ground forward, but excruciatingly slowly. The defense lawyers took depositions of the plaintiffs at the steelworkers union hall. The old ex-employees, many of them wearing overalls, arrived to find a horde of defense attorneys in dark suits ready to spend hours probing every detail of their lives. After 84-year-old Clay Taylor, who was in the lawsuit because of a ruptured eye vessel, said he had been gardening since his retirement, one attorney grilled him about the size of his garden, what kind of peas he grew, whether he shelled them himself, and where he sold them.
The truth was that many of the defense lawyers were happy to let the depositions drag on and on. As long as it looked like some work was getting done, they would continue to be paid by their clients. “Those lawyers who were cussing me during the day were the same ones toasting me at night with champagne,” Nix told me. “My lawsuit was making them rich.” A couple of lawyers were so excited by the possible length of the litigation that they left the firms they worked for, taking their Lone Star Steel clients with them, to form their own firms, where they wouldn’t have to share their fees. Just to add more hours to their bills, some attorneys came to the depositions knowing they weren’t going to contribute a thing. A few sat in the back of the union hall and read newspapers. One played video games on his laptop computer. Another arrived at each deposition with two associates: Not once did any of the three ask a question. “There were a core of twenty to thirty attorneys who were actively involved in the case,” a leader of the defense team said. “The rest we called potted plants.”
Jim Cowles was one of the early leaders in the fight against Nix. After the lawsuit was filed, he gathered many of the top defense lawyers at his law firm, Cowles and Thompson, located on the fortieth floor of a downtown Dallas skyscraper, and begged them not to settle out of court with Nix. “The big issue for a lot of us was that if we bowed down to Harold over Lone Star Steel, then we’d basically be inviting plaintiff’s lawyers from all over the country to inundate the courts with these kinds of lawsuits,” Cowles said.
But what few people know is that in a civil lawsuit involving great amounts of money, it is not the defense lawyer who makes the biggest decisions about the case. Nor are the decisions made by the chief executive officer of the company being sued. They’re often made by a little-known claims adjuster for that company’s insurance firm.
It was a lone adjuster, in fact, who was instrumental in turning Fowler into the monster that it is today. In the summer of 1988, Joe Wilkerson, the corporate claims manager for the Employers Casualty Company of Texas, called Harold Nix and asked if they could meet.
DALLAS-BASED EMPLOYERS CASUALTY was insuring two large construction firms that were being sued by Nix—H. B. Zachry of San Antonio and Brown and Root of Houston. Brown and Root had helped build the plant nearly half a century before, and along with H. B. Zachry had contracted later to erect other buildings. “As soon as I read the lawsuit,” said Wilkerson, who is now an independent consultant for the insurance business, “I knew that Harold was attempting legal extortion. He was trying to tell us that when those companies built the buildings, they used chemicals like paint—paint!—that caused workers to get sick.”
But to Wilkerson, the issue was not about liability. His goal was to get Employers Casualty out of the lawsuit as cheaply as possible. In a standard corporate insurance policy, an insurer agrees to pay not only the legal fees of the company if it is sued but also some or all of the jury damages if the company loses the lawsuit. As a result, insurers are far more willing to settle than to fight. If they sense the case is going to drag out, they also like to settle early. As the saying goes in the world of lawsuits, “He who settles first settles for least.”
Which is exactly what Wilkerson planned to do. “I knew how sympathetic a Morris County jury would be to Nix if the lawsuit ever came to trial, and I knew that Nix was the kind of lawyer who would pursue this for at least another ten or twelve years,” he said. “I then heard about the defense lawyers setting up committees and subcommittees, and I said, ‘Do I want to be part of this war?’” After a series of meetings between Nix and Wilkerson, Employers Casualty agreed to pay $6.5 million to have Brown and Root and H. B. Zachry dropped from the lawsuit.
Cowles and his group were livid. Wilkerson had played right into Nix’s hands. Nix told me that the Employers Casualty settlement, of which he kept $2.2 million, kept his lawsuit alive, giving him the money to pay future court costs as well as the salaries of his own staff of attorneys and legal assistants who were working full time on the case. Moreover, because the settlement was so high for two companies that were considered minor players, Nix was able to demand even higher settlements from anyone else who wanted out of the case. “I wasn’t particularly well liked by the claims managers at other big insurance companies,” Wilkerson said with a chuckle. “But they lived in places like Boston. They had never been to East Texas. They were under the illusion that they could keep Nix from getting his money.”
In December 1988 Nix rented a suite at the Crescent Hotel in Dallas and invited all members of the defense team and insurance executives to come listen to what he had to say. “It was like The Godfather,” recalled Hollye Fisk, a Dallas attorney who was representing Vulcan Engineering. “There was this table in the middle of the room with a light over it. We sat down and talked to some of Harold’s associates while he remained over in a corner in the dark. The associates told us that Vulcan had provided all these chemicals to Lone Star Steel, and we kept saying no, Vulcan had only shipped a sand bin. Suddenly Harold stepped into the light and said, ‘You need to do the right thing and settle!’”
Fisk walked out, but eventually some settlements began to trickle in, including $7,850,000 from a group of asbestos manufacturers. While Nix focused on the settlement negotiations, the day-to-day management of Fowler was left to a bright, snuff-dipping young assistant named Nelson Roach, who, like Nix, was a Baylor Law School graduate. At his first major Fowler court hearing in 1988, Roach, then 28, found himself facing hundreds of attorneys, most of them twice his age. “They saw me as a country bumpkin straight out of Mayberry R.F.D.,” said Roach, who was nicknamed Barney Fife by some on the defense side.
Through a series of clever stalling tactics, however, Roach and four other Nix lawyers kept defense attorneys from doing any damage to the lawsuit. Roach was also helped by a series of favorable judicial rulings from the state district judge presiding over the case, B. D. Moye, an easygoing East Texan who had known Nix for a long time. When a motion was filed to remove Moye from the case because of bias, the hearing had to be held in a high school auditorium to accommodate all the lawyers who arrived to attack him.
Another judge presided over the recusal hearing and ruled that Moye should remain on the case. “I didn’t give any favors to anyone,” Moye told me. “But I did believe the plaintiffs should be given a fair amount of time to develop the evidence in the case.” He agreed to put off discovery (pretrial information gathering) for at least a year while the Nix firm had 14 million pages of Lone Star Steel records transferred onto a computer for easier access. He then agreed with Roach’s request that defense lawyers depose only six plaintiffs a month, meaning that depositions would not be finished for several decades.
To many defendants, the sight of Moye on the bench meant certain defeat. He even postponed what many figured would be a no-brainer ruling to move the trial to another county. (According to a study conducted by the defense, one out of every two prospective jurors was either a Fowler plaintiff or a relative of a plaintiff.) Moye would not comment on any of his decisions, but he did say that he had been completely unprepared for the enormity of a mass products-liability case. According to knowledgeable attorneys, the only judges who are ever prepared for such cases are federal jurists, highly experienced in corporate litigation. Moye was a rural judge who had spent his career presiding over local civil and criminal cases, divorces, and auto wreck lawsuits. At one point, he did sign an order establishing new rules to help move the case along. But a court clerk, overwhelmed by all the paperwork, forgot to mail the order to the attorneys.
Meanwhile, the defendants’ legal bills were mounting, and the pressure on the insurance companies was growing. Throughout the early nineties, more defendants began to break. Smaller companies agreed to six-figure settlements. Liberty Mutual Insurance paid Nix a staggering $17,791,000 to dismiss 89 defendants. Nix also received $7,825,000 from a conglomeration of major petrochemical companies, including the fiercely litigious Exxon, which sold chemicals and solvents to the plant. What made the settlement surprising was that the petrochemical companies had one of the best corporate lawyers in the state defending them—Walter Conrad, a senior partner at Houston’s Baker and Botts. The problem, according to other defense attorneys, was that Conrad charged more than $400 an hour for his time, and he had other associates on the case who were said to be charging more than $200 an hour. “Companies like Exxon realized that if they decided to fight Nix, they were still going to get their butts kicked by their own attorneys’ legal fees,” said a prominent defense attorney in the case.
By September 1994, 194 companies had made out-of-court settlements with Nix for $66.7 million. One of the few insurers refusing to settle was the San Francisco-based Fireman’s Fund, which was insuring some thirty companies being sued. The environmental claims specialist for Fireman’s Fund, who began flying to Texas so often for Lone Star Steel meetings that he joined the Dallas Museum of Art to relax, called the settlements “insanity.” Cowles and fellow Dallas defense attorney Robert Martin, also part of the last stand, filed rare mandamus motions with the Texas Supreme Court to force Nix to respond to an interrogatory (a written pretrial question that serves as sworn testimony) that the defense had been sending him since 1987, the year the lawsuit was filed.
The interrogatory asked for the names of any doctors who had attributed a plaintiff’s injury to a defendant’s product, and for the name of that product. Nix’s reply was always the same: “The answer to this Interrogatory has not been determined at this time, but will be supplemented at a later date.” In other words, Nix was conceding that he did not yet have a case to take to trial.
The delays in the case, however, had given Nelson Roach time to look for evidence supporting the plaintiffs’ contentions. He and the other Nix lawyers collected dozens of studies and documents showing the potential harm of various chemicals at steel plants. They found corporate records dating back to the thirties that showed that some of the defendants knew their products were dangerous or didn’t have warning labels on them. Most significant, former Lone Star Steel workers were sent to the occupational-disease division of the University of Texas at Tyler for a simple chest x-ray and pulmonary function tests. Of the first 898 former workers screened, 157 were found with the kinds of lung problems that could be linked to asbestos exposure. Roach would later contend that about 1,000 Fowler plaintiffs had lung disorders, possibly because of asbestos. Two of the plaintiffs had died from mesothelioma, a vicious asbestos-caused illness that suffocates its victims, and six plaintiffs had silicosis.
Did Nix have a case all along? Roach said it was curious that the majority of defendants were not answering his interrogatories, in which he asked for specific details about the products they had shipped to Lone Star Steel. “In any product-liability case, the most crucial evidence about what did or did not happen is exclusively within the control of the defendants themselves,” Roach said. “If these big-time defense lawyers really believe we are inventing a case out of thin air, then they should get their clients to send us their product records, tell us what chemicals and substances were in those products, and let’s go to trial. We’re waiting for them.”
“Sorry, but that isn’t the way the law in this country works,” snapped Jim Cowles. “A company doesn’t let a plaintiff’s lawyer go on a fishing expedition through all its records, hoping he can find information to determine if the lawsuit that he has already filed is actually true. By law, you’re supposed to know that before you file a case.”
Last year, in a blistering decision, the Texas Supreme Court agreed, ruling that Nix and his lawyers must provide specific answers to interrogatories and that Judge Moye’s refusal to compel them to do so “constituted a clear abuse of discretion.” Finally, forced to reveal the crux of their case after eight years of litigation, the Nix lawyers said that Richard Kronenberg, the specialist at UT-Tyler who had reviewed the plaintiffs’ medical reports, had found that 31 substances at the plant—literally ranging from A (acids) to Z (zirconium)—had caused the workers’ illnesses.
Of course, the answer didn’t come close to what the defendants had asked for. There were no products listed. Roach declared that he was not being evasive. He simply could not answer directly until the defendants divulged the information about their products that he had been asking for since the early nineties.
But assuming he knew that information, would he be able to prove that any of the 3,000 plaintiffs had been exposed to allegedly toxic chemicals long enough to get a disease? It’s hard to imagine how. For one thing, of the 480 plaintiffs deposed so far, not one could remember what brand-name products they worked with or the names of the companies that had shipped them to the plant. As a test, an attorney asked one plaintiff in his deposition if he had used a chemical at the plant called dilithium crystal. The man said yes. Dilithium crystal was the fuel used by the Starship Enterprise on the television show Star Trek.
Then, in what appeared to be the crushing blow to Nix’s case, Hubert Crouch, the well-regarded Dallas litigation attorney who heads the defense team’s steering committee, arranged a deposition this past spring with Kronenberg. Kronenberg acknowledged that he did not know how many plaintiffs had ever been exposed to any of those 31 substances he had listed in the interrogatory. In fact, he wasn’t sure if those substances had ever been used in the plant. All of his information, Kronenberg said lamely, had been supplied to him by one of Nix’s attorneys. In a dicey move, Crouch handed Kronenberg medical records of specific plaintiffs and asked him to describe how they had gotten sick from their work at the plant. Kronenberg couldn’t do it.
It was perhaps the most astonishing moment in the history of this astonishing lawsuit: Nix’s own expert was admitting he was clueless.
BUT FOWLER CONTINUES. THE DEFENSE attorneys have filed new motions in state district court asking that the case be dismissed. Nix’s lawyers, in turn, have filed court papers demanding that the defense lawyers end their “misrepresentations, mistakes, and trickery” and start revealing more about their own clients’ products. Despite the obvious problems with the evidence in the case, Nix is still getting settlements. Earlier this year, four more companies agreed to settle for a total of $2.24 million, and 125 defendants are still left in the case.
In a way, a culture has developed around Fowler—people bound together by the gravitational pull of a single lawsuit. “Everyone knows that the toxic cloud theory is nuts,” said James W. Smith, who worked at Lone Star Steel for 33 years and was until recently the mayor of the tiny town of Lone Star, where the plant is located. “But it has brought the community together, I guess.” Indeed, when word spreads that another settlement check has arrived, a crowd gathers at Nix’s office. As always, after Nix takes his own cut, the rest of the money is scattered among the plaintiffs, supposedly according to a formula that gives the most money to the sickest. But it hasn’t always worked out that way. The healthy Sam Fowler, for example, has received an estimated $22,000 in settlement money. John Andrews, who is 45 years old and a fourteen-year veteran of the plant, has received only about $12,000 despite suffering from silicosis. “One of the tragedies about all this,” said Jung, the vice chairman of the defense’s steering committee, “is that the few potentially meritorious claims in this case have been obscured by the huge mass of plaintiffs who were never hurt.”
A couple of members of the defense team have filed motions accusing Nix of violating Rule 13, a sacred tenet of the Texas Rules of Civil Procedure that prevents attorneys from filing lawsuits that are “groundless and brought in bad faith.” An attorney found to have broken Rule 13 can be required by a judge to repay the defendants for the costs of the lawsuit. But such sanctions are rarely applied by Texas judges, and no one really expects anything to happen to Nix, whom even the defense lawyers can’t help but like because he is such a pleasant man who never raises his voice. Although they won’t say it out loud, defense lawyers also appreciate him for another reason. It is his lawsuits that keep them in business.
Since Fowler, Nix has turned Daingerfield into what one observer described as “an international toxic tort center.” He has filed a lawsuit in the name of thousands of Central American banana workers allegedly harmed by pesticides. He has gathered 3,784 plaintiffs throughout the South for a lawsuit against 162 asbestos companies. He is representing hundreds of workers in a lawsuit against an East Texas rubber plant. He was recently named as one of the plaintiff’s lawyers representing the state in its $4 billion lawsuit against the tobacco industry. “What we’re doing here is the Lord’s work,” an unrepentant Nix told me in his soft voice. Morris County residents believe him. Andrews, the silicosis victim, is so weak that he is unable to walk through the local Wal-Mart. “My only income is thirteen thousand dollars a year in Social Security disability payments,” he said. “Believe me, anything that Harold Wayne can get for me is like a gift from God.”
But if Nix can be so successful with a vague case about the insidious effects of toxins circulating invisibly, then what is going to prevent another plaintiff’s lawyer from making the same claim about any other kind of industrial plant? “Any time an attorney can multiply his pool of plaintiffs to an unwieldy size, he will get attention—and he will get settlement money—simply because of the labor and expense that will go into defending the case,” Cowles said. “Believe me, because of the money made by this little law firm in East Texas, we have entered a new era of American law. You’re going to see a hundred Harold Nixes raising hell all over the country.”
It is doubtful that local trial judges will ever put a stop to frivolous mass-plaintiff lawsuits. What incentive is there for a judge to throw out a case involving hundreds or thousands of plaintiffs who live in the same county in which the judge must run for reelection? Nor is it likely that appellate judges will intercede. They rarely control local trial courts because they don’t want lawyers running to them every time a local judge makes an unfavorable decision. What’s ultimately needed is stricter state laws that force a plaintiff’s lawyer to show early on how each of the plaintiffs has been injured by a product. Otherwise, plaintiff’s attorneys will—following Nix’s lead—claim they need years to gather the evidence for all their clients. State legislators could also reevaluate a system of appointed rather than elected judges, as well as put more teeth into existing laws that are meant to punish lawyers who propagate bad lawsuits. Ironically, the most recent Texas tort reform laws, adopted last fall, might serve to encourage more cases like Fowler. “Because the new law limits punitive damages,” Roach said, “you’re going to see plaintiff’s attorneys looking for a case that involves a mass of defendants. That way, you can get several defendants to pay damages all in the same case.”
Or several hundred defendants. This past spring, in a low-ceilinged Morris County courtroom, the participants gathered again to meet retired Dallas Appeals Court judge James Zimmermann, the judge who had been appointed to the case following Moye’s retirement last year at the age of 65 (“I’m ready to forget all about Fowler,” Moye told me, “sort of the way Judge Ito hopes to forget about his trial.”) The courtroom was full of lawyers, as thick as ants. Some were even sitting in the jury box. The angle of the courtroom lights gave a waxy shine to their foreheads. They fiddled with their ties, wrote on legal pads, and tried to get a sense of the new judge, who told them that he had read just a few of the three million pages filed over the lawsuit.
“I know some of you would like to talk about this case until next Independence Day,” Zimmermann said, “but first I’d like both sides to tell me when they might be ready for trial.”
Nelson Roach stood and said he’d be ready within twelve to eighteen months. Hubert Crouch stood and said the same thing. Then, as Zimmermann looked on, his mouth half open, the two attorneys began debating whether one side had to show the other side some Lone Star Steel documents. Then they got into another argument about the number of plaintiffs that could be tried at one time.
Somewhere, Charles Dickens was chuckling. Across town in his ornate office, Harold Nix had to have been chuckling too.