A Minor Fall

by Price Ainsworth

  I nodded and Dr. Mock left the room. The door closed behind him, and I took out my cell phone to call the Methodist Hospital adjustor back in Houston. I looked around to see if there were any cameras watching me.

  After introductions and some brief chitchat about the weather in Houston being unseasonably hot, Houston doesn’t really have seasons so maybe “unseasonably” was not the right word, the adjustor said, “Well, okay Mr. Jessie. We are going to settle this case for the $250,000 you demanded. I will have our lawyer draw up the settlement documents. We will not be seeking a release for Dr. Ammons. We will let him float his own boat on this one.”

  “I wonder what will happen to Dr. Ammons.” I asked.

  “I don’t know. I don’t imagine he will have privileges here anymore, and I guess that will mean that his surgical group lets him go. He’s fortunate that with a medical license and some surgery experience, he can probably just move away. We both know that if you sue him for sexual assault, an intentional tort not covered by his malpractice policy, he will just declare personal bankruptcy, and you will never get a dime out of him. If you don’t sue him, nothing will ever show up on his record when he applies for malpractice coverage. I expect that he will get off without a mark, and the hospital will be left holding the bag. Oh well. Dr. Ammons will be somebody else’s problem now. I can tell you that the hospital let the woman go who was supposed to be monitoring the cameras in the security room. Her name was Abby something or other.”

  I thanked the adjustor and hung up the phone. Before calling Eileen to get Tamara Davis’ phone number, I thought to myself that for the cost of postage on two letters and a few cell phone minutes, I had just made the firm $83,000. I don’t know what I expected when I told Tamara the news. Usually clients express their appreciation and sometimes they even cry when told their cases have settled. But Tamara’s reaction was just matter of fact. It seemed that she was also doing the math in her head.

  Despite the fact that I was worn out, I didn’t sleep very much again that night. I thought about the hearing and when that became too much, I opened a couple of the little scotch bottles from the mini-bar and tried to write a few sentences in the short story. Apparently writing fiction was not going to be a very good stress reliever. If you are a passionate perfectionist who is reluctant to ask for help in your personal life or law practice, you are probably going to demonstrate the same qualities in your literary efforts. As I wrote a sentence, I would be excited and interested in what I was going to write next. Then as soon as I put down the pen, it all seemed like so much drivel, and I wondered what was going on in my head when I wrote the silly sentence.

  It didn’t take very long to determine the next morning at the hearing on the experts what was going on in the Special Master Commissioner’s head. We didn’t follow the order of witnesses that would have been followed at a trial because the hearing was just on the competing motions to strike each side’s experts. Having filed their motion first, Boyd’s lawyers went first and called my expert, Mr. Walton. Then I had the opportunity to “rehabilitate” the witness. The process would be reversed when the commissioner considered my motion to strike Boyd’s experts.

  I had barely completed my questioning of Mr. Walton regarding his background and qualifications when the commissioner intervened with his own line of questioning, largely based on leading questions that depicted the risk to human health from radiation contamination of the plaintiffs’ properties as speculative at best. While practically summarizing the points that defense counsel had attempted to make with Mr. Walton, the commissioner focused his questions on the fact that nobody had actually developed a disease that Mr. Walton could attribute to the radiation. Instead he was concerning himself with what might happen in the future.

  Mr. Walton’s opinions had been based in part on the computer model relied on by federal government agencies that estimated the cumulative effects of residual radiation, a so-called RESRAD model. This model in particular incorporates various future land-use scenarios (like different types of farming and home-building) that had never been attempted in eastern Kentucky; and the commissioner used that fact to attempt to ridicule the projected results, even though I thought Mr. Walton did a fair job of suggesting that it should be the landowners who determine how their land will eventually be used, not the oil company that channeled enough radioactive pollution onto the properties to limit future uses. In essence it was the same discussion Mr. Walton had with me back in March at the Paintsville Inn.

  The hearing was held in a conference room at the Lexington law firm representing Boyd. Most of the plaintiffs were unable to make the trip over to Lexington for the hearing, and those that did, including Mr. Carter, found it difficult to find a seat in the room.

  The reason seating was so limited was not because the room was too small. The room was enormous. Instead, it was packed with men and women in blue and grey suits. Each person tapped away at his or her respective laptop computers throughout the hearing, and frequently one would leave the room with a cell phone in hand. I knew all of these people could not be working for Boyd, even though Boyd certainly had plenty of lawyers there. Maybe they were lawyers from other firms representing other oil companies. None of them introduced themselves to me, and I definitely got the impression that they saw me as an enemy.

  I sat at the conference table next to Riza, who also had her laptop open, but she didn’t seem to be taking notes. The screen was situated so that it was difficult for me to see it, and I wondered if she was instant-messaging to Sullivan and reporting how poorly the hearing was going for us.

  The Special Master Commissioner, seated directly across from me at the oval table, turned his attention to me as he tapped the eraser-end of a pencil on a legal pad. “Mr. Jessie, I suppose I should offer you the opportunity to call a witness on your motion. Who’d you like to start with? I’d like to complete the testimony today.”

  “I call Dr. Thomas, your Honor. I anticipate that Dr. Thomas’ opinions will embrace the opinions of the other experts designated by the Boyd Oil Company on the issues regarding the harmful effects of low dosages of radiation. Perhaps, if I’m permitted to go into some detail with Dr. Thomas, I can avoid having to examine the other witness.”

  “Well, let’s see how things develop. By the way we can dispense with the ‘honor’ designation. I’m just plain old ‘Mr. Abbott.’ I’m proud to serve at Judge Hurst’s designation, but (as you know) I’m not appointed by the governor nor elected by the good people of this commonwealth to serve. I just make recommendations. His Honor will issue the order. Very well. Enough of the formalities. Let’s swear in Dr. Thomas.”

  Without the necessity of an introduction, Mr. Abbott turned to Dr. Thomas, who was seated at the far end of the conference table, and asked the witness to raise his hand and take the oath. A court reporter, seated near the witness, pecked away at her stenographic recorder.

  I started with the money. It wasn’t so much that I thought that the commissioner would decide that the witness was so biased that the witness’ testimony would be tainted, but I did think it was important to make a record of the extent of the affiliation between the witness and Boyd. In fact, I had called Dr. Thomas instead of one of the other experts because Thomas had actually profited quite handsomely from his association with Boyd and the Martha Oil Field.

  In addition to his witness fees for the review of records and testing data generated on the plaintiffs’ properties, he was a partner in a company that had done significant work in developing reclamation protocols for Boyd. The State of Kentucky had issued orders regarding cleanup of the Martha Oil Field and Thomas’s company had earned substantial fees in assisting Boyd in complying with those orders. There was nothing untoward about the money that was made, but it was a lot of money, and I thought it showed a connection between the witness and the party that certainly went above and beyond any connection between the plaintiffs and the expert we had hired.

  I probably spent too long on the money, l
argely because I didn’t have anything to work with as far as the man’s credentials. And any attack I made on his credentials would serve to undercut my own witness who didn’t have the advanced degrees or publications that Thomas had.

  Similarly, there was not much ore to be mined in comparing the analysis of the data collected and reviewed by both parties. Though most of the million dollars my firm had spent had gone towards reimbursing the plaintiffs’ previous attorneys for the costs of soil and water sampling and analysis, the work had been done on the cheap as most of it had been done by people that had garnered their experience working in the field rather than studying in the classroom. The defendant had probably spent ten times that amount doing roughly the same (albeit more detailed) work.

  I did get the witness to say that he had carefully reviewed the reports and credentials of the other experts designated by Boyd. They represented various disciplines of study, but on the principle issue of whether low doses of radiation can cause deleterious health effects, they were all in agreement. And their consensus was a resounding “No.” Believe it or not, there are many peer-reviewed articles that support that position. In fact, there are well-written articles that have been published in respected journals that suggest that low doses of radiation might even be good for you.

  I handed copies of the expert’s report to him and the commissioner. I avoided any discussion of the text of the report and went to the bibliography. Somewhat to my surprise, I saw the commissioner flip through the pages to the back of the report and follow along.

  I worked my way through a few of the articles. While Dr. Thomas had cited the studies in his report, it had been a while since he had read them, and he was not as familiar with the underlying data as he should have been (or as he no doubt would be if he testified at trial sometime in the future). It was not that I knew anything more about the health effects of radiation than Dr. Thomas—far from it. I didn’t know a fraction of what Dr. Thomas knew about radiation. But it has been my experience that where there are two schools of thought about a concept and an equal number of articles have been published on each side of the issue, there will be an article that is critical of the literature on the other side. And the Internet is a wonderful thing.

  It took about an hour. Although I didn’t address each of the articles referenced in Dr. Thomas’s report, I don’t think any fair-minded person would have decided that it was a foregone conclusion that there was a threshold below which exposure to radiation was not harmful. I was assuming, of course, that we were dealing with a fair-minded person.

  I ended this portion of the examination by asking the witness if he agreed with a passage from a pamphlet entitled Evaluation of Guidelines for Exposure to Technologically Enhanced Naturally Occurring Radioactive Materials published by a committee on the evaluation of EPA guidelines put together by the National Research Council’s Board on Radiation Effects Research Commission on Life Sciences. It took longer to identify the source than it did to ask the question, but the discussion touched on what I thought was the central issue at hand—do governmental guidelines incorporate the linear no-threshold approach?

  “Dr. Thomas, please confirm that the committee in this 1999 document concludes the following:

  ‘[a]t the present time, there is considerable debate over the validity of the linear no-threshold dose-response hypothesis for low levels of exposure. It remains as an assumption used in developing all radiation guidelines, including those for TENORM, in spite of the current debate over the validity of this hypothesis . . .’

  “Yes, I agree that was the committee’s conclusion.”

  “So whichever side of the debate is ultimately determined to be the right side, current government guidelines for exposure to low levels of radiation continue to follow the linear no-threshold approach—the approach espoused here by the plaintiffs’ expert?”

  “I guess that’s true to some extent.”

  “Dr. Thomas,” I continued, “we’ve been through many of the articles you cited in your report, but maybe the most important authority is the one you didn’t cite.”

  “I don’t know what you mean.” He said. “I think my research of the published material was thorough.”

  I could tell by his answer that he knew where I was going. I also thought that I detected a note of surprise in Dr. Thomas’ last answer. “Well, let’s look at endnote 27 in your report.” I said. “It refers to something called the BEIR V report, doesn’t it?”

  “Yes.” he said.

  “What is that?” I asked.

  “BEIR is an acronym that stands for the ‘Biological Effects of Ionizing Radiation.’ It’s a report from the National Research Council prepared to advise the US Government on the relationship between exposure to ionizing radiation and human health. The BEIR V report was published in 1990.” Dr. Thomas said, trying to sound official.

  “BEIR VI came out in 1999, didn’t it?” I asked.

  “Yes, but it dealt with the health effects of exposure to Radon.” He said.

  “But that’s not the end of the story, is it?”

  “Well, there is the BEIR VII-Phase 1 report.” He said.

  “That was published in 1998, wasn’t it?” I asked.

  “Yes.” He said.

  “And the Phase 1 report concluded that it was appropriate and feasible to conduct a BIER VII-Phase 2 study didn’t it? That study would be the definitive study to assess the health risks from exposure to low levels of ionizing radiation wouldn’t it?” I asked.

  “Yes.” he said.

  “I don’t see in your report where you mention that you reviewed the results of the BEIR VII-Phase 2 study in preparing your report, Dr. Thomas.” I said, pretending to be searching his report in an effort to find the missing citation.

  “It isn’t published, yet. So I didn’t include it.” He said.

  “But that’s not what I asked you Dr. Thomas. Did you review the BEIR VII-Phase 2 study before you prepared your report?”

  “I’m sure I would have reviewed a preliminary draft of the Phase 2 report, but it hasn’t been officially published, yet.” He said.

  “In fact you were one of the persons chosen for their ‘diverse perspective and technical expertise’ to review the report in draft form, weren’t you?” I asked, reading from a copy of the Phase 2 report.

  “Yes, . . . I was. How did you get that? You’re not supposed to have a copy of that.” He said, obviously a little perturbed.

  “Now, Dr. Thomas. You’ve testified enough for Boyd, haven’t you, to know that it’s the lawyer that gets to ask the questions?” I asked.

  “It’s my understanding that the final draft of the document wouldn’t be made public until sometime next year, in 2006.” He said.

  “Here is a copy of what I’m reading from.” I said, passing a copy to him, Boyd’s counsel, and the Commissioner. “I didn’t say this was a final draft. But it does look like the one you reviewed prior to the time that you prepared your report in this case, doesn’t it?”

  “Yes.” He said, hesitantly.

  “In fact, we see your handwritten notes from time to in time in the margin, don’t we?” I asked.

  He nodded.

  Before opposing counsel and the commissioner could read too far into the document, I began a long question, speech actually, full of righteous indignation and dripping with prejudice, which had been pieced together from the document. “Doctor, you would agree with me, wouldn’t you, that the primary objective of this study [was] to develop the best possible risk estimate for exposure to low-dosage, low linear energy transfer radiation in human subjects?”

  “Yes.” He said.

  “And the NRC determined that ‘in the fifteen years since the publication of the previous BEIR report . . . much new information has become available on the health effects of ionizing radiation’ including ‘substantial new information on radiation-induced cancer . . . from the Hiroshima and Nagasaki survivors, . . . progress . . . in areas of science that relates to
the estimation of genetic (hereditary) effects of radiation . . ., [and] advances in cell and molecular biology. . . .’”

  “That’s true.” He said, waiting for me to continue.

  As I continued reading from my scripted questions, I observed the defense counsel and commissioner thumbing feverishly through their copies of the documents. “The BEIR VII committee concludes, doesn’t it, ‘that current scientific evidence is consistent with the hypothesis that there is a linear dose-response relationship between exposure to ionizing radiation and the development of radiation-induced solid cancers in humans [and it’s] unlikely that a threshold exists for the induction of cancers’? In other words, any exposure to radiation causes an increased risk of cancer, right?”

  “Where are you reading from?” the witness asked, looking at his lawyers.

  “I’m on page 10, reading from the conclusion. The bottom line is Dr. Thomas, that the preeminent study in this field, a study that is intended to guide government and industry in developing guidelines for human exposure to ionizing radiation, has rejected the position taken by you and the Boyd experts to the extent that you have asserted there is a threshold of safe exposure to radiation. Isn’t that so?”

  “We object, your honor.” The defense lawyer interrupted before Dr. Thomas answered.

  “You don’t have to call him ‘your honor,’” I said.

  “We object, Mr. Abbott.” The defense lawyer corrected himself.

  “What’s your objection?” Mr. Abbott asked.

  “This isn’t a published document. And it says on page 10 that the draft manuscript is to remain confidential,” the Boyd attorney said.

  “So as ‘to protect the deliberative processes’ of the NRC.” I said, reading from the conclusion of the sentence he had read. “I don’t see how what we do here today will have any effect on the National Research Council’s deliberative process.