Carswell shakes his head. “Counsel needs to respect the court's time and the time of opposing counsel. Ms. Simon, I will call the case again in five minutes. If we have not heard from plaintiff's counsel, I will rule on your motion.”
“Thank you, Your Honor.”
Before Jennifer Simon could move from counsel table, Carswell moved on. “Case number four, Walters v. Consolidated Energy.” Just that quickly, we are ready to proceed.
Harris and I make our way to the counsel tables.
“Good morning, Your Honor. Scott Winslow for the plaintiff, Mr. Walters,” I state.
“Robert Harris for Defendants Consolidated Energy and Michael Constantine, Your Honor.”
“Let me hear first from counsel for defendants. You think that plaintiff should not be allowed any access to inspect conditions at either of the mines?”
“Yes, Your Honor.”
“Why? This is discovery, isn't it?”
“Well, Your Honor, it is our position that the actual condition of the mines has nothing to do with this lawsuit. The issues in this action are whether the plaintiff had a reasonable belief that there was unlawful conduct on the part of the defendants and whether he was fired for voicing that reasonable belief. Of course, in reality the answer is a resounding no on both counts; nonetheless, the actual condition of the mine makes no difference. The conditions don't alter whether or not there was a reasonable belief on the plaintiff's part or whether he was fired for voicing it.”
“Hmm,” Carswell grunts. “Mr. Winslow, you have anything to say?”
“Yes, Your Honor. First of all, the defense argument has a couple of logistical flaws. The affirmative defenses alleged in the Defendants' Answers to the Complaint include the position that there was no unlawful condition in the mines—
“Yes,” Harris interrupts, “but that doesn't mean the actual conditions are relevant. Just—
“Your Honor, I believe that I had the floor,” I say.
“I believe you did, too. Continue. Seriatim, Mr. Harris; you'll get another opportunity, but now isn't it.”
This heaping of Carswellisms on Harris made my morning. “As I was saying, Your Honor,” I want to add before I was so rudely interrupted, but thought better of it, so I continue, “defendants contend that there was no unsafe or unlawful condition in the mines. They also take the position that Mr. Walters did not have any reasonable belief that any such unlawful or unsafe conditions existed. If the defendants are now prepared to stipulate that the unsafe and unlawful conditions that Mr. Walters complained about actually existed, we will waive the right to inspect. Otherwise, the inspections are necessary to determine that the conditions he complained about existed. If these conditions existed and can reasonably be seen as dangerous to those familiar with mines and their safety, then we have established reasonable belief, and the defense goes away. The inspections will allow us to identify conditions consistent with Mr. Walters's complaints leading up to his termination and refute the defense position that no dangerous conditions existed. Defendants want to argue that there is no basis for a belief in unsafe or unlawful conditions and then deny us access to evidence that we believe will establish that such dangerous conditions existed.”
Carswell nods. “Now is your opportunity to respond, Mr. Harris.”
“I think counsel's argument misses the point on the law here. As I was saying, it makes no difference if there were unlawful conditions; the question is simply whether my client reasonably believed there were dangerous conditions at the time of the making of the complaint. Looking at the mine adds nothing to this.”
Carswell furrows his brow as he does in contemplation of forthcoming thought or perhaps ridicule. “Are you planning to argue that Mr. Walters's belief in unlawful conditions was not reasonable or that the conditions he references did not exist?”
I glance at Harris and could see he was not comfortable with this direction. “Well, Your Honor, perhaps, but that doesn't make any differ—”
“I think it does,” Carswell says, interrupting and ending the dispute. “Next issue,” he says. “I want the plaintiff to tell me why he needs access to both mines—Wheeling and Ruston.”
“Didn't your client complain about Ruston conditions?”
“Yes, Your Honor.”
“No specific conditions at Wheeling are in issue in the case, right?”
“Yes, Your Honor, Ruston conditions are in issue, but we believe that conditions in both will provide critical evidence for two reasons. The first is that the defendants had acted to address deficiencies under Mr. Walters's direction in Wheeling, but they failed to correct violations in Ruston. Our expert will be able to attest to what was done with respect to certain conditions in Wheeling. Some of those conditions also existed in Ruston. Defendants will not be able to deny that those specific conditions needed addressing, as they had admitted it and addressed them in Wheeling. Mr. Walters pointed out these and other serious corrective actions needed in Ruston but was fired for insisting on safety measures to address these issues because it would have cost money to shut the mine to make the corrections. All of this is supported by the declarations of Mr. Walters, and our mining expert, John J. Bernard, of Mining Enterprise International. So the examination of both mines is essential and can be completed expeditiously to allow us to properly prepare for trial.”
“I've read those declarations,” Carswell says, nodding.
“May I be heard, Your Honor?” Harris asks.
“You can, Mr. Harris. This is your time.”
“This is wholly unwarranted and nothing but a waste of corporate assets. We are now talking about the operation of a mine not even in issue in this case based upon some wild speculation about similar conditions. This is way over the top, Your Honor, and my client should not be required to interrupt business to allow inspections of a mine not involved in this lawsuit. Plaintiff's own allegations are that he was fired for complaining about conditions at Ruston, not at Wheeling. This is like losing your car keys in Los Angeles and wanting to look for them in San Francisco.”
“Hmm,” Carswell mumbles, and then he leans forward in his chair and looks at me. “You said you had two reasons, Mr. Winslow. What is the other one?”
Here goes, I think to myself as I take a breath. “The other, Your Honor, is that we believe that conditions referenced by defendants as occurring in Wheeling, were in Ruston. They are conflating the two, and we can establish this with the help of our expert.” Carswell is listening intently and quietly, so I continue. “Ordinarily, county records regarding inspections and citations would help, as would the testimony of the county inspector assigned to oversee these mines and their inspections for the past fifteen years, but he is suddenly gone, and no one knows where he is. I have a declaration from the county addressing that issue. At the same time, the records are unexplainably intertwined—matters pertaining to Ruston appear in the Wheeling records and vice versa. Mr. Walters's declaration addresses that issue based upon his personal knowledge of conditions in both places.” Carswell is nodding and definitely intrigued.
“Now we are in the land of conspiracy theories and entering into the Twilight Zone,” Harris says, disgustedly. “This is ridiculous, Your Honor.”
“Hang on, Mr. Harris.” Carswell says. “Do you dispute what counsel says about the records and the missing inspector?”
Harris shakes his head. “Records that are known to exist have been produced. I understand the inspector retired and moved. No big mystery there; people get older and retire. Again, Your Honor, this is a waste of time and money in the extreme. We shouldn't even have to be here today to oppose nonsensical motions like these.”
“I do not agree with you, Mr. Harris. The court's order will be that plaintiff and his representatives will have the right to inspect conditions at both mines. The inspections shall be limited to six hours each and will be scheduled by the parties. Counsel, you need the court to order a specific date, or can you work that out between you?”
“I believe we can reach agreement on that issue, Your Honor, although I request that the order specify that the inspections are to occur within fifteen days.”
“Fifteen days is too short, Your Honor; we need a reasonable period of time to set this up,” Harris says.
“The inspections will both occur within thirty days of today,” Carswell responds.
“Good-bye, counsel. Next case is number fourteen, Maxwell v. Lamont,” Carswell says without wasting a word or taking a breath.
* * *
At five minutes past noon, Lee's phone rang. After four hours of watching the house and seeing nothing, Lee was growing impatient and stiff.
“About time,” he said, dispensing with any greeting. “What have you got?”
“Carter got one call from his wife and one from his mother. That's it.”
Lee reflected for a moment, and then asked. “Where's mom?”
“Orlando, Florida.”
“All right, thanks,” Lee muttered unhappily, hanging up the phone.
Lee decided he had to approach David Carter because he was out of other ideas. As he lifted the handle to open the car door, he saw Carter step from the house and walk down the front steps. He didn't walk toward his car, but directly to the old wooden mailbox in front of the house. He opened the box and pushed mail inside. Then Carter looked around him as if to see if anyone was watching. For a moment, he seemed to stare in Lee's direction. Then he turned away and walked back to the house. When he disappeared inside and closed the door, Lee moved quickly to the box and pulled out three letters. One was an unopened letter to Evan McMahon, with the handwritten words “wrong address” added. The second envelope was to the gas company and looked like a payment. The third envelope was addressed to Eric Darden in Magnolia, Mississippi. Lee cautiously opened the envelope. Inside was the current month's retirement check payable to Carl Miller. “Bingo,” Lee said aloud, as he raced quickly toward his rental car and wondered how far it was to Magnolia, Mississippi. Whoever Eric Darden was, he was going to bring Lee that much closer to Scott Winslow's missing witness.
As Lee climbed into the car, he punched the redial button on his cell phone. It rang once, and then the familiar voice answered.
“What now?”
“Time to earn your money again. I need all you can find on Eric Darden in Magnolia, Mississippi.”
“Is that it?”
“Yeah. And I need it in the next couple of hours.”
“Of course you do,” the voice said without surprise. “We'll get back to you.”
The phone went dead as Lee smiled to himself and turned on the radio. He joined Bob Seger in a chorus of “Old Time Rock and Roll.” This was going to be a good day.
Chapter 18
June 3, 2016
The Ruston and Wheeling mine inspections were scheduled for one week apart. The first inspection occurs at Ruston. Kevin Walters and I meet with Jack Bernard outside the gates twenty minutes before the scheduled inspection.
Bernard says, “I brought two engineers with me to observe and operate equipment. We will confer to determine the best testing and sampling areas. We are going to sample physical materials in the shaft, and we will take samples of the air in various locations in the shaft.” He stops long enough to draw some air and see if we were going to jump in. We didn't, so he continues, “We can also compare what we find with what was on the invoice you guys found. Shall we get started?”
Nods all around, and we walk toward the mine. Harris stands with two other men a few feet from the mine access area.
“You can start anytime. Your clock is running.” Harris says. “We will be here to monitor.”
“That's fine,” I say, and with that, Harris and the others with him move away without speaking further.
“Nice guy,” Bernard says, grinning.
“Yep. A real sweetheart,” I say, shaking my head.
Bernard and his team say a few words to a supervisor and the process begins. Small quantities of materials are removed from the primary vertical shaft and shaft junctions. Measurements are taken—both physical measurements of the shaft and surrounding areas and air volume and content measurements. One of the engineers takes photos at the locations they visit. Kevin periodically interacts with Bernard and the team.
Harris and a more junior attorney from his firm stand by and watch everything. Harris speaks while the junior attorney takes notes. They watch our team carefully, lest we should plant bad air or do something else untoward. I suspect that the other man standing with Harris is a company engineer supplied to provide him insight as to what he is watching. They huddle frequently, and then look in our direction, the junior attorney notating throughout.
On several occasions, Bernard interacts briefly with Consolidated Energy employees on site, which causes Harris visible angst. He appears ready to complain about this on a couple of occasions, but the conversation stops before he approaches me to discuss his concerns. We have been on site for almost five hours when Bernard nods, indicating that he and his team had completed their work.
I signal completion to Harris, who looks visibly relieved. As we walk out to our cars, Bernard says good-bye to two engineers and turns to speak to Kevin and me. “I will have the tests for both facilities completed within a week after next week's Wheeling inspection.”
“Okay, great,” I say. “Any initial impressions?”
He looks thoughtful. “Was there any discussion about when they would stop operating prior to this inspection?”
“No, although I assumed that they would operate until very close to the time of the inspection because they complain about the substantial costs of any period when they are not operating,” I reply.
“Yeah,” Bernard says, “but that's not what happened here.” He observes what must have been a puzzled expression on my face and continues, “This mine has been shut down for at least a couple of days before this inspection.”
“What?” I reply, shocked.
“Yeah. You can tell nonoperation several ways, like air content and movement.”
“Why would they do that?” I ask.
He smiles. “One reason is to assure we don't get any usable information that would establish issues with air content. If they just let the shaft sit and breathe the air for a couple of days, it gets much cleaner than it would be if operating.”
I respond, “So, do I need to go to court to try to get an order requiring that they keep working the mine until a designated number of hours before the inspection?”
He shakes his head. “No. And it wouldn't do you much good. They can find a number of ways around the order. They operate on a very limited basis, they stop certain types of work, leave certain areas alone—there are endless possibilities.”
“So what do we do?” I ask.
“Nothing. Let them think that they are getting away with something.” He smiles widely. “They're not.”
We shake hands, and Bernard turns and walks to his car, leaving Kevin and me alone. “What do you think?” I ask.
“I told you he's good. I worked with him for a lot of years. He says just what he thinks, and he knows stuff. I think he can also help us prove our theory.” He pauses and then adds, “And whatever he says, he's probably right.”
* * *
Lee arrived in Magnolia, Mississippi, at 6:00 p.m. He found a roadside hotel that featured nothing in particular—no Internet, no cable, no gym, and nothing in the room but a standard double, one end table with an oversized lamp, and a thirteen-inch television suspended where the wall meets the ceiling in such a manner that a neck ache was guaranteed after a few moments of watching. The view was a potholed parking lot and an adjacent old building that housed a delicatessen. The room was twenty-four dollars, including tax.
As he opened his bag on the bed, Lee's cell phone rang. He recognized the number. “About time,” he said. “What have you got for me?”
“Eric Darden is an appraiser at a three-person firm called Property Val
ues. Been there about six months. He lives at 174 Hinden Court. No property ownership in the county.
“Before that, what do you have on this guy?” Lee asked, playing a hunch.
“That's the interesting part. Before that nothing. DL issued for the first time six months ago. I'm checking other states and sources, but it looks like this guy was born six months ago.”
“Nice,” Lee said grinning. There was no doubt in his mind that Darden was Miller. “Thank you. Nice work. Let me know if you find anything else on Darden or any connection to a prior life.”
“Shall do.”
“I owe you for this.”
“Yep. What's new?” the voice said as Lee disconnected.
Lee thought about his approach to Darden as he walked from the room. Somewhere in this town there had to be a place to find a beer and a burger. Both sounded great.
The town was a throwback to an earlier time. Old clapboard houses were set back from tree-lined streets. The weathered homes made Lee feel as if he had suddenly been transported back to the early 1960s. The houses were modest, the lawns manicured, and the streets empty.
As Lee approached the downtown area on Main Street, a row of shops came into view, all one story, many with windowed offices upstairs. Every fourth or fifth shop was for rent, most bearing the same agent's sign. Neon flashed shop and restaurant names as Lee followed Main Street, which meandered to the 1890s courthouse on the edge of town. He drove past Rigby's Beef Barn, suddenly putting his hunger on hold. He had the overwhelming urge to get a look at Darden's place and, maybe, at Eric Darden.
Lee traveled farther on Main Street and then out of town for seven or eight miles, as he watched the scene turn rural. The pavement ended, and the road narrowed to a single lane serving both directions. At first, houses were on each side of the road. They became more and more sporadic until they were few and far between. As the surroundings became more rural, a five-foot ditch appeared on each side of the narrow, dirt road, so if a car came the other way, someone would have to back up for some distance. This was not a big concern, as there was no other car to be seen. Lee bounced onward to the next dirt road intersection. He grinned at a battered street sign identifying this cross street as Bel Air Drive. Lee made a left turn to find that the roadway narrowed even further, and now the potholes were frequent and jolting. After bouncing for a half mile, and passing only a few houses, Lee came to Hinden Court, his destination. He made a right turn and saw two small houses about two hundred yards away on the right side of the road and nothing on the left. He identified the house numbers with field glasses, realizing that there was no way to get much closer without being seen. This would be the ideal place if you were trying to escape. About as remote as possible and anyone approaching can be quickly spotted. Surrounded by dirt fields and with no other cover, he could probably already be seen by anyone in these houses. Worse, there was no shoulder and no place to park without driving into the ditch. Lee locked the car where it was and began walking toward the house. He pulled his cell phone from his pocket and started dialing. He then saw that there was no service, which made perfect sense as he looked around him. No cell towers and not much of anything else.
[2017] The Whistleblower Onslaught Page 14