Washington attorneys Michael Fisher and Daniel Kyler recently obtained a $6.49 million verdict on behalf of a father of eight who was permanently disabled after being exposed to ammonia gas. They were assisted in the case by attorney Tamara Clower. We asked Mike to share a few thoughts on how his team obtained this substantial verdict. The following summary describes how Mike used concepts from Don’t Eat the Bruises by Keith Mitnik to obtain justice for his client.
Here are the details from Michael Fisher:
The Case
Steve Crow worked for a large timber company for over thirty years, primarily at a truck yard operated by his employer. The truck yard was located next to a pulp mill operated by a different company. The pulp mill received regular deliveries of various hazardous chemicals and materials, including aqua ammonia. These deliveries were made by the defendant, James J. Williams Bulk Haul Transport, a trucking company that was licensed and certified to transport and deliver hazardous materials.
One day, Mr. Crow was standing in front of a building at the truck yard talking with three coworkers. At the same time, a driver for the defendant was making a delivery of aqua ammonia to the pulp mill. On this day, the driver was in a hurry. Rather than using the filter system, called a “scrubber,” as he was supposed to before driving away from his delivery, the driver vented the remaining pressure and ammonia gas from his tanker trailer into the air. The evidence in the case supported the conclusion that the driver may have vented up to the entire 18 psi of ammonia gas from his tanker trailer into the air as he drove away from the pulp mill’s storage tank.
All of a sudden, Mr. Crow and his coworkers were hit with the invisible gas. They immediately lost their breath and began violently coughing. Mr. Crow’s three coworkers ran into a nearby building and shut the door. Mr. Crow jumped into his truck, and began to drive away from the area. It was a hot day and the air conditioner in his truck was on high. Because Mr. Crow was unaware of the source of the gas, he unknowingly drove to an area that was closer to the location where the defendant’s driver was venting the ammonia gas. The air conditioner in Mr. Crow’s truck sucked additional ammonia gas into the confined area of the interior of the truck, making his exposure greater than his coworkers. His eyes, nose, and throat burned, he could not breathe, he was becoming delirious, and he almost blacked out. Mr. Crow was in a panic and feared for his life.
Though they described the exposure incident as terrible, the three coworkers had no appreciable injuries. Mr. Crow suffered burns and scarring to his corneas and damage to his airway resulting in reactive airway disease. By far the most devastating were the psychological injuries that Mr. Crow suffered. He developed severe PTSD and major depression as a result of the incident. Within six months of the gas exposure, Mr. Crow was suicidal and was admitted to the psych ward at a hospital for a period of time to treat his debilitating PTSD and depression. Five years after the gas exposure, Mr. Crow continued to suffer from severe PTSD and severe depression. Mr. Crow is now permanently disabled due to reactive airway disease and his psychological problems resulting from the incident.
One particularly troubling aspect of PTSD is that the patient frequently relives the traumatic event, especially when triggered by stimuli, thus becoming re-traumatized again. For Mr. Crow, his breathing difficulties and the coughing associated with his reactive airway disease causes him to frequently relive the gas exposure event. Because of this, we did not have Mr. Crow present at trial at any time except to testify.
We presented lay testimony from Mr. Crow’s wife, four of his eight children, and six friends from the community about the differences in Mr. Crow before and after the gas exposure incident.
The Claim
The fact that Mr. Crow and his three coworkers were exposed to a gas or chemical was not in dispute. Although the defendants agreed that Mr. Crow and his coworkers were exposed to some kind of gas or chemical, they disputed the specific gas or chemical and its source. Mr. Crow brought claims against the trucking company and the pulp mill for negligence and strict liability for an abnormally dangerous activity. He alleged that one or both of the defendants was the cause of the gas exposure incident.
The defendant’s truck driver admitted that he vented ammonia gas into the atmosphere, but claimed that an employee of the pulp mill gave him permission to do so—which was never corroborated. All of the witnesses from the pulp mill denied giving the defendant truck driver permission to vent ammonia gas to the atmosphere.
The pulp mill was dismissed from the case in 2017, and the trucking company was the sole defendant on the case at trial.
The Defendant’s Favorite Facts & How We Put Them into Context (Methods from Don’t Eat the Bruises)
The system set forth in Don’t Eat the Bruises has three parts:
(1) eliminate the defendant’s favorite facts
(2) if you can’t eliminate them, own them if possible
(3) put the defendant’s favorite facts in context
We were not able to eliminate or own any of the defendant’s favorite facts so we focused on putting their favorite facts into context, beginning with our opening statement.
1. Favorite Fact: All of the expert witnesses agreed that ammonia gas vented into the atmosphere would dissipate and would not remain in the air for more than an hour. If the defendant could prove that this gas exposure incident occurred at 3:00 p.m. or later, it could escape liability because the ammonia gas vented by its driver prior to 2:00 p.m. would no longer have been present. The defendant argued that the employer’s investigation report stated that the gas exposure occurred at 3:00 p.m. and that the testimony of various witnesses that the gas exposure occurred towards the end of the work day supported the argument that the gas exposure occurred at 3:00 p.m. or later.
a. In Context: “Common Sense or Coincidence.” The ammonia gas that was vented would have been present in the air for less than an hour. The evidence established that the defendant’s delivery of aqua ammonia to the pulp mill was the only delivery of ammonia that day. The pulp mill is a very large facility and the ammonia tank is located on one end of the facility, far away from the other buildings and storage tanks at the mill. There were no other gas or chemical deliveries to the area where the pulp mill’s ammonia tank was located on the day of the exposure. There was no dispute that the gas exposure occurred, and the defendant made the only delivery to that area of the pulp mill. The truck driver admitted venting ammonia gas between 1:20 and 1:40 p.m., and the ammonia gas would not be present in the air for an hour or more. Common sense tells us that the gas exposure had to have occurred prior to 2:00 p.m. The only reasonable alternative was that this was just a coincidence.
2. Favorite Fact: Ammonia has an odor that is both unique and pungent. Neither Mr. Crow nor the three exposed coworkers recalled smelling ammonia. In fact, none of the four of them could provide any description of what the gas smelled like when they were exposed. They could only describe the symptoms that they experienced. The defendant argued that Mr. Crow must have been exposed to some other gas from some other source because he did not smell ammonia.
a. In Context: “Common Sense or Coincidence.” A fifth coworker was not “exposed” to the gas but smelled it and described the smell alternatively as a “chemical smell like a swimming pool” and a “horrible ammonia smell.” When the gas exposure occurred, the effect on Mr. Crow and his coworkers was immediate and therefore it is highly unlikely that they even had a chance to smell the gas before they were severely effected by the exposure. The one worker who was not overcome by the gas reported it smelled like ammonia. Common sense tells us that the gas exposure was caused by the ammonia gas the defendant admittedly vented. The only reasonable alternative was that this was just a coincidence.
3. Favorite Fact: After the gas exposure incident occurred, Mr. Crow and one of his coworkers sought medical treatment. Because they were injured on the job they were covered by Workers’ Compensation and were accompanied to their medical treatment by a supervisor. When the supervisor asked Mr. Crow and his coworker what time the gas exposure occurred, they said they did not know. The supervisor put the time of the incident down as 3:45 p.m., the end of their work shift that day. Mr. Crow and his coworker signed the forms, ostensibly attesting that the information was correct. The defendant argued that this was further proof that the gas exposure occurred after 3:00 p.m.
a. In Context: The time of 3:45 p.m. indicated in the workers' compensation forms filled out by the supervisor was not an accurate recording of what time the gas exposure occurred. The supervisor had to ask Mr. Crow and his coworker what time the exposure occurred, proving that he did not know himself. Mr. Crow relied on his supervisor to fill out the worker's comp form correctly. He wasn't concerned about the timing when he told the supervisor he “didn’t know” what time the exposure had occurred, he was concerned about his health and getting in to see a doctor.
b. Additionally, after the gas exposure, Mr. Crow and his coworker did some additional work. The work took about two hours and they left at 3:45 p.m., so the gas exposure could not have happened at 3:00 or later. The coworker confirmed this.
4. Favorite Fact: The defendant’s industrial hygiene expert prepared a computer model of the ammonia gas vented by the driver. According to the defense expert, the computer model established that the concentration of ammonia gas that would have reached Mr. Crow and his coworkers was not high enough to have caused any injuries.
a. In Context: “Cross-Examine the Defense Expert in Opening Statement.” Because this case was tried in federal court we were only permitted 15 minutes of voir dire. Therefore, we were unable to employ any of the voir dire concepts from Don’t Eat the Bruises. However, we were able to use the concept of cross-examining the defense industrial hygienist in opening statement as follows:
i. You are going to hear from some expert witnesses in this case. Both sides hire and pay expert witnesses to testify at trial. Some of the experts are here to educate you and some experts are here because they are master persuaders. You are going to have to decide whether the experts are here to educate you or to persuade you on some issue.
ii. Now, the defendant picked and paid a lady named Stephanie Carter, who has a degree in industrial hygiene to testify in this case. Let me tell you about her. She has done a lot of work in areas such as welding and cutting in confined spaces and in aluminum smelter facilities. Her resume doesn’t list any work with Pulp Mills but they hired her for this case. She is going to tell you this is all a big coincidence. That even though there is no dispute that Mr. Crow and his coworkers were exposed to a harmful gas, and even though the defendant admits it vented aqua ammonia gas, she will claim that it is unlikely that the amount of ammonia gas vented by the defendant would cause the injuries suffered by Mr. Crow.
iii. You will hear that she used a computer modeling program called Aloha to try and model this gas exposure but she will admit that the Aloha program is not designed to analyze smaller gas releases, especially those involving aqua ammonia. You will also hear that she had to make a number of assumptions for many of the variables that go into the modeling calculation because she didn’t know the true data for those variables.
iv. We are not going to bring in paid experts to try and persuade you about things when they have no ability to give an accurate or precise answer. As you will hear from multiple witnesses, computer modeling cannot be used for a moving truck that is venting. Aloha only works for a fixed release point when all of the variables that go into the calculation are known. Since the Aloha program cannot give an accurate or reliable model of this gas exposure we didn’t waste your time by bringing in a paid expert to talk to you about it.
5. Favorite Fact: On June 22, 2017, ten days after trial was supposed to have begun and one month before the new trial date, the defendant produced an “addendum” report from its industrial hygiene expert stating that data from the pulp mill’s computer system had recorded that a sensor located near where Mr. Crow and his coworkers were standing had recorded a small spike in sulfur dioxide at 3:03 pm. The defendant argued that the small spike in sulfur dioxide at 3:03 p.m. was consistent with the employer’s investigation report that the gas exposure occurred at 3:00 p.m. and that the sulfur dioxide was the source of the gas exposure incident.
a. In Context: “Red Herring Argument made at the Eleventh Hour out of Desperation.” The defendant knew it was going to trial as the sole defendant, with no evidence of any other source for this gas exposure other than their own admitted venting of ammonia gas. In early June of 2017, the defense industrial hygiene expert was told to find something, anything, at 3:00 p.m. or later that the defendant could argue was the source of this gas exposure. The only thing the defense expert could point to was the data from one sensor showing a small spike in sulfur dioxide at 3:03 pm. This computer data had been in the possession of both parties for ten months at that point. The particular sensor that recorded this data was located outside of the pulp mill property and had not been maintained or calibrated for years so any data it recorded was not accurate or reliable. Given the characteristics of the data, other witnesses had dismissed the data of the small spike of sulfur dioxide as instrument noise rather than a true gas reading. The defense expert had ostensibly come to the same conclusion as she did not even mention the spike in her first expert report issued ten months earlier. Throughout the discovery and depositions in this case, no one ever raised or discussed this small spike until one month prior to trial. This point was made in opening statement and during witness exams. We did not discuss or even mention the spike in Closing Argument but did address it in rebuttal closing.
The Conclusion
Mr. Crow’s past medical expenses were roughly $193,600. His future life care plan was estimated to be around $930,900. He incurred approximately $194,000 in past lost earnings, and his future lost earnings are estimated at $369,400.
The trial lasted two weeks. Closing arguments finished at the end of the day on a Friday. The jury was sent home and came back the following Monday to begin deliberations. After one and a half days of deliberations, the jury returned a verdict in favor of the plaintiffs in the amount of $6.49 million. This included $3.12 million in noneconomic damages for Crow’s past and future pain and suffering, $1.56 million to his wife for loss of consortium, $1.3 million for future economic damages, $400,000 for past economic damages, and $110,000 to three of the couple’s minor children for damages to the parent–child relationship.
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