Sunday, February 9, 1997
Tort reform and Nolan County: The story of
large judgments
By LORETTA FULTON / Regional Editor
SWEETWATER - One lawyer jokingly referred to Nolan County as
the "poster boy for tort reform."
Indeed, when tort reform legislation passed the Texas Legislature
in 1995, Nolan County was bantered about as a prime example of
why such legislation was needed.
"This was perceived as the best place to get your money,"
said Douglas W. Poole, an attorney with a Galveston firm that
represents the Burlington Northern Santa Fe Railroad, formerly
Atchison, Topeka and Santa Fe Railway Co., the defendant most
often named in the suits filed in Nolan County.
Whether that's good or bad, of course, depends on who's talking,
but it is a well-known fact among lawyers in Texas that Nolan
County, one of three counties in the 32nd District, is a good
place to file a suit for damages.
Plaintiffs have "more success in getting large judgments
(in Nolan County) than any other place in the state of Texas,"
said one attorney who asked not to be named.
Although the vast majority of cases are settled out of court,
just last fall a jury sitting in the Nolan County Courthouse returned
the largest judgment ever awarded in the 32nd District, $20 million
to a family that had sued Owens-Corning Fiberglas.
The woman whose death precipitated the suit had lived in Vernon
and ostensibly had no connection to Nolan County.
But because an insurance company involved in the suit had an
agent in Sweetwater, Nolan County was a proper venue for the suit.
However, legislation that took effect on Jan. 1, 1996, puts new
requirements on "proper venue" that may affect Nolan
County.
"We should see a dramatic decrease in them," in Nolan
County, said Sweetwater attorney Zollie Steakley, who frequently
is the local counsel for the railroad when suits are filed here.
In May 1993 Steakley filed an affidavit in 32nd District Court
in connection with a request to transfer venue stating that from
Jan. 1, 1989, to May 1993, a total of 646 cases had been filed
in the court and that 138 of them were related to the Santa Fe
Railroad.
"Of those 138 cases, only three have any connection with
Nolan County," the affidavit stated.
Since then, even more railroad cases have been filed, with
a noticeable deluge coming just before the Jan. 1, 1996, effective
date of the new legislation.
In fact, 10 pages of the civil docket in 32nd District Court
leading up to Dec. 29, 1995, had practically no listings other
than suits against the railroad. Each page contained 38 listings.
Because the majority of cases don't go to court, the court
system isn't clogged in Nolan County, but plenty of typists are
kept busy. No doubt they, along with attorneys for the defendants,
are pleased with the change in law.
But for some plaintiffs and their attorneys, that change is
bad news. As Poole, an attorney for the railroad noted, "They
wouldn't file them there if they didn't think there was some advantage
there." Change of venue
Frank Conard and Temple Dickson know well the advantages of
filing lawsuits in Nolan County. They live here, and their names
appear often on the suits as local counsel for the plaintiffs.
Dickson, a former state senator, at one time worked as a lawyer
for the railroad before entering private practice. He says it's
not unusual for lawsuits to be filed in Nolan County when they
appear to have absolutely no connection with the county.
"On the railroad cases, we're entitled to file them here
because one of their main places is here," he said. "The
other side is entitled to complain if venue is not correct ...
there are not any cases here that have nothing to do with Sweetwater,"
he said.
Dickson frequently works with attorney Don Bowen, who lives
in Abilene and has an office in Houston. Bowen made the news last
summer as the successful attorney in a Houston case in which Exxon
Corporation was awarded a $410million judgment against Lloyd's
of London and 250 other underwriters.
The judgment was to compensate the corporation for money it
spent cleaning up after the 1989 Exxon Valdez disaster in Alaska.
But Bowen is more familiar with railroad cases than seagoing
vessels. For 23 years he has represented plaintiffs in suits against
the railroad, mainly employees who are covered under the Federal
Employees Liability Act. Many of those suits are filed in Nolan
County.
Both Dickson and Bowen cite a close working relationship, convenience
and relatively quick results in a Sweetwater court.
"Temple is one of the best people I have ever known and
it's close to my home," Bowen said of Sweetwater.
Bowen, Dickson and Conard all agreed that Nolan County's size
is a main reason for filing here.
The change in the law may create hardships for plaintiffs,
Conard said.
"If a citizen gets hurt he may have to file in a big city
where it takes five, six, or eight years to get a case to trial,"
Conard said. The defendants "would rather it be postponed
forever so they don't have to pay," he said.
The new law limits proper venue for railroad employees injured
on the job to:
1. Where the plaintiff lives
2. Where the worker got hurt
3. Where the railroad has a principal office
In the past proper venue was where the railroad had an agent
or official, such as in Sweetwater. Now the "principal office"
most likely will be Houston or Fort Worth, where the two majors
railroads in Texas are headquartered.
"You're going to end up with a huge venue docket in Fort
Worth," Bowen said.
Instead of a case coming up for consideration within a year
or so, it will be several years on a big city docket, opponents
of the change argue. That will be especially detrimental to a
worker who has been used to earning $70,000 a year working on
the railroad and suddenly dropping to $500 a month in benefits,
Bowen noted.
"It creates a real economic hardship," he said. "The
longer it sits there, the fellow may end up going broke."
'We've paid some big money'
While not being unsympathetic to employees laid up with an
injury, proponents of the venue legislation see things a little
differently. Douglas Poole, one of the railroad's attorneys in
Galveston, pointed out that his company has hardships of its own
defending the number of suits filed against it.
"We pay money ... we've paid some big money," he
said.
Poole is thankful for the change in law.
"I have something coming up each and every month in Nolan
County," he said.
He noted that one batch of lawsuits filed in Nolan County against
the railroad included more than 200 plaintiffs who were retired
or ex-employees of the Clovis, N.M., office.
All the claims were identical, Poole said.
"They claimed they had been exposed to every chemical
in the world ... and accordingly, 'I'm sick.' " he said.
Under the new law those cases wouldn't be sitting in metal
filing cases in the Nolan County Courthouse.
"The latest tort reform we believe has ended this,"
Poole said. Plaintiffs' attorneys "will have their work cut
out for them finding a loophole for venue. It won't be easy from
now on," he said.
Dickson, the plaintiff's attorney agreed, although he's not
happy about it.
"It will be impossible for us to file cases for example
against Santa Fe even though they have a substantial office here
and a superintendent here. They'll have to be filed in some big
city."
In the meantime a number of the cases remain on file in Nolan
County, and although most are settled out of court, some will
proceed to trial.
Lawyers on both sides say the reason most are settled is because
of the uncertainty involved with a jury.
"That's the reason they settle," said Dickson. "They
like the certainty. The railroad doesn't want to get a huge verdict
and the working man or woman doesn't want to get shut out."
In fact, a Nolan County jury in January ruled in favor of the
railroad in a suit filed against it regarding an accident in the
Panhandle.
The finding was somewhat historical for a railroad suit in
Nolan County, even though this case involved a railroad crossing
accident, not an employee being injured on the job.
"It marked only the second time I recall there was a clear
verdict that said the plaintiff gets nothing," said Zollie
Steakley, a local counsel for the railroad.
Since then the plaintiffs have requested the right to a new
trial. Very competent attorneys
Attorneys for the defendants obviously aren't happy with all
the cases that have been filed in Nolan County the past 15 years,
but they do speak respectfully of their Sweetwater adversaries
Dickson and Conard.
"We do face some very competent attorneys down there,"
said Lavoy Reed, general director of claims for the Burlington
Northern Santa Fe headquarters in Fort Worth.
"Both these guys are very good lawyers, excellent lawyers,"
added Poole, a railroad attorney.
Opinions differ on why Nolan County juries are so generous
when it comes to judgments in the cases that make it to trial.
Most people wouldn't consider Nolan County to be liberal and lawyers
don't use that word in describing it.
"I think it's nice that a county is known for being willing
to do justice" is the way Conard puts it. Nolan County juries
"have been willing to award large damages when it was appropriate.
There have been a number of substantial damages awarded by Nolan
juries in the past years," he said.
He declines to take a lot of the credit that other lawyers
try to give him.
"Usually it's the evidence more than the presentation"
that convinces juries, he said.
Dickson agrees and believes a jury is the "luck of the
draw whether in a big city or a small one."
In the Owens-Corning Fiberglas case in which the plaintiff
was awarded $20 million, Dickson said he had documents that showed
memos from the 1940s and '50s proving company officials "knew
these materials (asbestos) were killing people and they did nothing
about it."
"That's the type of thing that upsets a jury," Conard
added.
Their co-counsel in Houston, Bowen, believes it's the size
of the company rather than the size of the community that makes
a difference.
"I feel like there are a lot of people who feel like big
companies have continued to take advantage of people," he
said. When juries hear of big corporations keeping information
from the public, like the Owens-Corning Fiberglas case "they
are going to get a little angry about it," he said. Legislation
impact questioned
Although some attorneys are pleased fewer cases will be filed
in Nolan County or other places deemed to be "tort reform
poster boys," others question the impact of the new legislation.
Dickson, for example, pointed out the railroad is only liable
if it is found to be negligent and careless, leading to injury
of a worker.
"It wouldn't have mattered if they were filed in Houston,
Dallas, Albuquerque, Los Angeles or Chicago or wherever. They
would have still been out big bucks," he said. Gerald Ewing/Reporter-News
Page after page of lawsuits naming the Atchison, Topeka and Santa
Fe Railway Co. as defendant fill the civil docket books in the
Nolan County Courthouse, one of the most popular sites for civil
cases statewide before tort reform legislation in 1995.
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Abilene Reporter-News / Texnews / E.W. Scripps Publications
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