The Lawsuit from Hell
(Page 2 of 5)
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.
