The Lawsuit from Hell
(Page 5 of 5)
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.
