The affidavits that were attached to the defendant’s motion referenced numerous scientific articles which supported the conclusion that exposure to low levels of radiation was not harmful. The articles were also attached. As I understood the articles, from the position of a layman, the assertion was made that exposure to sunshine and microwave ovens and dental x-rays had not been shown to cause any increased risk of disease or injury; therefore, the slight increases in radiation on the plaintiffs’ rural properties couldn’t be shown to establish an increased risk of disease or injury.
Finally, I read the cases that the defendant had attached to the motion. Most of the cases dealt with the standards for reliability of expert testimony and were from federal courts in neighboring jurisdictions. There were very few cases on point that arose from the Kentucky state court system. The leading case was Goodyear Tire and Rubber Company v. Thompson. In that case, the Kentucky Supreme Court held that an injured party’s expert testimony was inadmissible to show that the manufacturer of a multipiece rim breached its duty to warn of the dangers associated with changing a tire on a multi-piece rim. The Kentucky court pointed out that the expert did not demonstrate the acceptance of his “reverse installation procedure” in industry or regulatory standards. As the evidentiary “gatekeeper,” the trial court must exclude expert testimony not based on “generally accepted” scientific principles or methodology.
When I finished reading the cases, I called Mr. Walton. He lived in Ohio, and he planned to meet me the next day in Paintsville. He seemed like a very nice older man. I discussed the defendant’s argument with him briefly, but he didn’t seem overly concerned. Apparently, he had heard such arguments before. The conversation with Mr. Walton calmed me down a bit.
That afternoon, I called Eileen to find out what was happening at the office. She had not seen Sullivan or Riza that day. Eileen was busy preparing summaries of the cases on my docket so that they could be distributed to the other associates. She asked if we were going to have any cases to work on except the Kentucky case. Eileen had worked at the firm for a long time before I was hired. She had seen several batches of associates come and go. A sudden reduction of caseload would be the kind of thing that blipped her radar. I didn’t tell her about my concern that the Kentucky case was tenuous. I didn’t want her to worry. I thought I would figure something out.
After I talked to Eileen, I called Michelle at her office. Our conversation was brief, and her comments seemed terse and hurried. She asked me where Beth was. I asked her how the lunch had gone at church. I didn’t tell her that I was worried about the Kentucky case being close to dismissal. I didn’t want her to worry either. If I had told her the issues in the case, she would have stayed up all night researching the matter. I wasn’t quite sure how, but the Kentucky case had become my problem. I would have to figure out some way to fix it, if it was going to be fixed. As I hung up the phone after talking to Michelle, I had the distinct feeling that I was sitting on an island a million miles from shore. I felt cast off from my family, my home, my practice, and my friends. I was beginning to wonder who my friends were, or if I had any.
I turned on the television and flipped through the channels. Then I shut it off and left the hotel. I walked to the Dairy Queen and ordered a chili-cheese dog, wondering how Beth’s day had gone and at the same time wondering if her efforts to complete the plaintiffs’ answers to discovery were even necessary.
It was dark when I got back to the hotel. When I got to the room, Beth had already changed into her Penn State T-shirt and grey shorts, and was in my room sitting on the bed where she had fallen asleep the night before. She was watching basketball on TV. She was drinking a beer. When I walked in, she asked, “What is ‘UW hyphen M’?”
“University of Wisconsin-Milwaukee, I think. Basketball country, no doubt.”
“The beer is on ice in the sink in my room,” she said. I followed her direction and then sat down on the bed where she was sitting crosslegged. “Do you think we have enough beer?” she asked. “We have a lot of games scheduled.”
I shrugged, but didn’t answer.
“Bad day?” she asked as she turned down the volume on the television with the remote control.
“Could be,” I said. “The motion looks pretty good to me.” Admittedly that statement was not an in-depth discussion of the facts or case law, but it was more than I had said about the motion to either my boss or my wife.
“Did you talk to your expert?”
“Only briefly. He’s supposed to be here tomorrow. He thinks he can help. How did your day go?”
She looked at me instead of the basketball game on TV and began telling me about the different homes she had visited that day. She had crisscrossed back and forth over a three-county area, meeting with plaintiffs in their homes. She was trying to fill in the blanks in the discovery answers previously provided by the plaintiffs. The homes were located in various “hollers” in the Martha Oilfield. Some were difficult to get to by car. “But, all in all,” she said, “I enjoyed it. The people are all very nice. And they all want to feed you. Because I don’t know the area, this job could take a couple of weeks. Houses that look close to each other on a map are separated by the fact that there are no roads between them. I’ll weigh 300 pounds before I get back to Houston.”
“Your husband won’t recognize you.”
“Assuming he would anyway.”
“Things will get better when you get home.”
“Are we talking about my marriage now, or yours?”
I laughed. “Your being here has no doubt caused tension in both of our marriages.”
“No. There may be tension in your marriage, but I’m afraid mine may be past that point.”
“What happens after the tension stage?” I asked, sincerely curious about what might be in front of me.
“I don’t know. You get to a point where you’re both going to work and focusing on your jobs. Ari and I have always had jobs that involved a lot of travel. At first, it was fun. I had not traveled very much growing up. The plane rides were exciting. Seeing new towns and places was exciting. Then, when I got home, it was as if we were still dating. We’d go to dinner or clubs and have fun. Or, maybe we would rent dirty movies and stay inside all weekend and act like newlyweds. Over time though, more and more, the weekends were spent recovering from the week; and now it seems like Ari and I are not even home on the same weekend. We were both home last weekend. It didn’t go so well.”
“No dirty movies?”
“No dirty movies. Oh, we attempted sex. But it didn’t work. Honestly, I don’t really know why the attempt failed.” She paused, obviously thinking about the past weekend with her husband. She told me that, lately, she and her husband were better at fighting than communicating. They seemed to communicate best by yelling at each other. One time a neighbor had even called the police.
“I’m sorry,” I said. “I didn’t mean to pry. I was asking about the marriage part. Not about the sex part. I guess neither is really any of my business.”
“Yeah, I know what you were asking. I don’t really know why I told you the sex part. I guess it’s just on my mind. Does it make you nervous to know that you are trapped in a secluded hotel room with a sexually frustrated contract lawyer?”
“You make me nervous!”
She threw her head back and laughed. “Why would I make you nervous? You’re a successful young trial lawyer with a prestigious, downtown Houston firm. You’re married to your boss’s daughter, who, by all accounts, is an attractive, successful young lawyer in her own right. I Googled her when we got back from New Orleans.”
“Why did you Google Michelle?”
“I don’t know. I Google everything. I guess I was surprised to learn that you are married to Sullivan’s daughter while knowing as much as you must about Sullivan.”
“Have you Googled me?”
“Sure. Pretty boring stuff, but I would summarize my research under the heading ‘Budding Career.’ Hav
e you Googled me?”
“No. But I did see you in a bikini one time.”
She flushed red, but smiled. “When did you see me in a bikini?” she asked touching her right index finger to her pursed lips.
“You were at the Four Seasons pool.”
“What were you doing at the Four Seasons pool?” she asked.
“I wasn’t there. Several of us were in Peters’ office using his telescope.”
“His telescope?”
I nodded, and thought for a moment. “What were you doing at the Four Seasons pool?” I asked.
She laughed, and stood up from the bed. “I ought to tell you some wild story, but the truth is that a girlfriend of mine who works at the hotel lets me go there to sunbathe. I was between jobs and thought I was going to a private place. I never imagined people might be watching me through a telescope,” she said shaking her head. She put her beer on the nightstand, walked over to me, and stood very close to me. “So, what did you and the guys say about me and my bikini? Of course, you’ll never tell me because you are so proud of your ability to keep a secret.” She said bouncing her forefinger on her lips again.
“We were complimentary. Honestly, I’ve had trouble getting the image out of my mind. Especially after I met you at Damian’s that day.”
“Why are men so caught up in how women look?” she asked. Without answering, I pulled her to me and kissed her on the lips. She didn’t pull away and instead put her arms around me and we kissed for several minutes. After a while, she leaned back from me and quietly asked me, “Do you want to do this?”
“We’ll probably be accused of doing it, whether we do it or not,” I said realizing even as I said it what a weak justification it was for what was about to happen. She stepped back another step, and without a word, removed her T-shirt and shorts. Wearing only her sweat socks and the cross necklace, she walked across the room and turned off the lights. I remember thinking that she was the only woman I had ever seen naked in person who looked like a Victoria’s Secret model, but apparently she didn’t wear underwear. From the light of the television screen, I watched her walk back across the room, sit on the edge of the bed, and begin unfastening my belt and pants. With her mouth and hands on me, I climaxed.
When I opened my eyes, Beth was smiling up at me. “Take off your clothes,” she said. “Now, I need you to do something for me.” I took off my clothes and she stretched back onto the bed. I kissed her mouth and neck and breasts, and was working my way down her abdomen when she stopped me. “Let’s do that later. That’s not what I want for you to do for me now,” she said, as she rolled over on top of me and began kissing me. “First, I need you hard. Though surprisingly,” she said, as she reached back and stroked me with her right hand, “you’re already getting there.” I didn’t say anything as she continued with the kissing. While I began to return the kisses, she moved to my neck and chest. Her hair and the cross necklace brushed back and forth across my chest, and I could feel myself slipping toward another orgasm. She moved her mouth to my stomach. In a moment, she sat up, straddled me, and put me inside of her.
“What about contraception?” I asked rather clinically. But she just laughed and told me not to worry as she had taken care of that. The only interruption in the smoothness with which she moved was that, as she put me inside of her with her right hand, she grimaced slightly. “I can’t believe I’m not wet enough,” she said.
“I don’t think that’s an issue,” I said, as I could feel the silky, warm wetness pulling me deeper inside of her.
She slipped her right hand to her mouth and licked her fingers, and returned her hand to her clitoris. “No,” she said, “I’m wet enough,” and she tilted her head back and closed her eyes. As she stroked herself with her hand, her body rocked up and down on me; and even in the flickering light of the television screen, I could see her breasts, white below her tan line, flush red. As she came, her body rocked harder on top of me.
She paused for a moment, her hands resting on my chest. “Your turn again,” she said, and reached up with her right hand and grabbed the headboard of the bed. She bit down on her bottom lip. With the full force of her body, she pressed up and down against me, pulling me inescapably deeper inside of her. Eventually, she collapsed forward on top of me, covering my face with her chest, the little diamond cross falling into my mouth.
We slept in my room. Bucknell upset Kansas, but North Carolina, Duke, Michigan State, and Kentucky all advanced to the next round. We woke up the next morning when Beth’s cell phone went off in her room. She got up and took the call in her room. I overheard her exasperated tone but couldn’t understand most of what was being said. I could tell that she said something about not being able to get home before midnight if she left at that moment. After a while, I could tell that she was crying. Clearly, she had been crying when she came back into my room. She stood at the door between our rooms, with her arm on the doorway. She was naked, and tears were running down her cheeks.
“I have to go home,” she said. “That was Ari.”
“Why? What’s wrong? Did you tell him about last night?” I asked.
“No. I need to go home. I can’t tell you why right now. I’ll call you when I can.”
I lay in bed and listened to her shower and pack. I told her to take the rental car back to the airport, and that I would catch a ride from Mr. Walton or one of the plaintiffs. Beth was on her cell phone, talking to an airline, when she left. After Beth was gone, I got up and took a shower. I stood with my eyes closed, letting the hot water stream over me. “What am I doing here?” I thought to myself. As I reflected on the events of the previous evening, I felt myself beginning to throw up, and I went down on my knees and vomited into the tub.
PART II
WHAT I NEVER SAID . . .
For thou didst it secretly: but I will do this thing before all Israel, and before the sun . . .
—2 SAMUEL 12:12
8
MR. WALTON KNOCKED ON THE DOOR to my hotel room about 10:30 that morning. I had closed the door to Beth’s room and tried to make sure that it was not readily apparent that anybody else had been in my room. He introduced himself, and we shook hands. He was a kind-looking, grandfatherly gentleman, who had brought with him a stack of manila folders stuffed with pages that stuck out in all directions.
I gave him a copy of the defendant’s motion to strike his testimony, and we sat down at the little table in my room. After he had looked through the motion, he put it down and sighed. I was impressed with how matter-of-factly he reacted to the defendant’s attempt to characterize his testimony as slipshod and unscientific. He had been through this process before.
“It’s the same thing they tried last time,” Mr. Walton said. “They attack the linear no-threshold hypothesis and ridicule the RESRAD computer model.” He explained to me that there were two schools of thought among scientists as to whether low-dose exposure to radiation was harmful. The “linear no-threshold” school holds that any exposure increases the risk of injury or disease. As the dosage goes up, the risk goes up. The other school, which included numerous peer-reviewed articles written by the defendant’s experts, opined that below a relatively undefined threshold, there was no scientific evidence that exposure to radiation is harmful. They admitted that above the threshold the risk of injury is real; but the low levels of radiation found on the plaintiffs’ properties where TENORM had been measured fell far below any scientifically supported threshold.
Mr. Walton described for me the residual radiation computer model, RESRAD, that he had used in drafting his report. As he explained it, a computer program existed whereby future land-use scenarios were projected that would yield identifiable rates of risk from exposure to low levels of radiation. The problem with the computer model was that it relied upon future land-use scenarios, and some had little or no application to eastern Kentucky. The model projected homes being built on the TENORM-impacted sites with grazing livestock in the area and even the possibility
of fish farming. When I suggested to Mr. Walton that I doubted any fish farming would ever take place in Butcher Holler, he calmly replied that the example was only one of many future land-use scenarios that were incorporated into the computer model, which essentially used averages from many different alternatives. Wasn’t it up to the landowner to decide how he wanted to use his property? Why should the landowner be restricted by Boyd Oil’s negligent production methods? And besides, this is the same computer model that the federal government used when it determined that land had been properly cleaned up so that it could be released for unrestricted use under federally mandated guidelines.
I knew very little about radiation and less about computer models for future land-use scenarios. But when he said that the federal government relied upon the computer model, a light went off. “Does the federal government set guidelines for what are acceptable levels of radiation at cleanup sites or for federal workers exposed to radiation?” I asked. “Do they rely upon the linear no-threshold hypothesis in setting these standards?”
“Of course,” he replied, and began digging around in his stack of papers until he came up with a couple of documents.
“So, your opinions track the theory relied upon by the federal government and the defendant’s experts rely on a controverting theory?”
“I guess you could put it that way.”
“Why couldn’t we move to strike their experts because their opinions are not based upon a theory generally relied upon in the relevant scientific community?”
A Minor Fall Page 10