Field burning has now stopped for 1988. My staff is working with environmental organizations, seed growers and dealers, state agencies and members of the Legislature as legislation is developed for the 1989 Legislative Assembly to consider when it convenes in January. The tragic accident that killed your family has prompted review of the existing state laws.
I share your loss and anguish.
I’m happy to have the letter but concerned with what he means by “none of the alternatives found are complete solutions.”
And then everything I fear seems to occur at once. It begins simply enough. I receive a copy of a letter from the law firm Steele, Cutler and Walsh. It has been retained, the letter says, to pursue the “wrongful death” claims for Kate, Bert, Dayiel, and Mia. The claims are filed against the state of Oregon and officials, agencies, departments or divisions, for negligence contributing to the deaths. The state of Oregon has filed claims as well. It is suing all those involved in the accident for carelessness and reckless driving. Mr. Thompkins, the farmer who started the fire, is also suing everybody—broadside. What could he be suing them for, blocking his smoke?
Pandora’s box has definitely been opened. I find myself wishing to withdraw from the whole thing while recognizing that Sally was right: we need to protect ourselves. But no large law firm will protect us unless it can make money from the case. This means suing.
And so begin twelve months of voluminous correspondence with Steele, Cutler and Walsh, the first of which immediately makes us uncomfortable: we are asked for Kate’s biography. We are asked: where she lived, what schools did she attend, what was her academic record, her work experience, as well as what kind of person, mother, and daughter she had been. We need to supply very specific details: how often did we visit her? How often did we communicate? How recently? What kinds of things did we do together?
We did not expect this. But we do it. We cry together but we do it, assuming it’s to convince some jury of Kate’s value so that her loss can be expressed in dollars and cents.
They also want the same information about Dayiel and Mia.
“Mia’s academic record?” asks Rosemary. It’s necessary to laugh a little; we’re crying too much.
The correspondence continues, much of it devoted to two points of legal procedure. The points, according to Ms. Flores of Steele, Cutler and Walsh, are extremely important.
The first concerns where the case is to be heard. Ms. Flores wants it in a federal court instead of a state or a county one—especially Linn County, where the accident happened. This also ensures that our case will be heard on its own and not tied with the other cases. She has various arguments to back up her point—that the deaths were of people from a foreign country, that the deaths occurred on an interstate highway—and after much to-ing and fro-ing, a judge rules in our favor.
She also wants the state to treat each accident separately. In Oregon, as in most US states, there is a “cap,” or maximum amount that the state can be sued for in a highway accident. In Oregon, the “cap” is only $300,000, even in this situation, in which the unlawful deaths, injuries, and property damage could mount into tens of millions of dollars in claims. The “cap” won’t apply to the others we may also sue—the farmer who started the fire or the trucking company that owned the eighteen-wheeler that ran over the van—but the others can always go bankrupt, or die. The state of Oregon isn’t going to go bankrupt, or die.
Eventually a federal judge, Judge Moody, finds in our favor and rules that the “cap” should apply to each case individually.
Ms. Flores is very enthusiastic; we are, too: by now we are determined to bring the state of Oregon before a jury and judge so it can be tried by due process in a court of law.
When the statement of complaint for the wrongful deaths of our family is finally filed in the United States District Court for the District of Oregon, it cites three defendants in addition to the state of Oregon itself: Paul Thompkins, the farmer; Sampson National Carriers, Inc., which owned the eighteen-wheeler truck; and Bob Stone, its driver.
The first claim for relief concerns Mr. Thompkins. This is what it says:
On August third, 1988 at approximately 3 p.m., Thompkins began field-burning operations on his grass seed field within approximately one-eighth of a mile of the Interstate 5 freeway, just north of the Highway 34 overpass.
Fire from Thompkins’s field burn spread to adjacent fields and smoke from the burning fields was carried across Interstate 5 and enshrouded it with dense ground-level smoke, reducing the visibility of freeway travelers.
At or about 3:50 p.m. on August third, 1988, the decedents were passengers in an automobile northbound on Interstate 5 that was struck from behind by a truck driven by Stone as the vehicle of the decedents slowed for traffic congestion caused by the smoke from Thompkins’s field burn.
As a result of the collision described above, Kathleen Wharton Woodman and her infant daughters, Mia Woodman and Dayiel Woodman, were killed. [Bert Woodman is not mentioned because his family is involved in a separate suit in the state courts.]
The field-burning operation in which Thompkins was engaged was an abnormally dangerous and ultra-hazardous activity. It created a high degree of risk of harm of exceptional magnitude and probability to decedents and others traveling along Interstate 5, in that dense smoke inherent in field burning is substantially uncontrollable, despite the utmost care, once field burning begins.
The field burning in which Thompkins was engaged was a substantial factor in causing the deaths of Kathleen Wharton Woodman, Mia Woodman, and Dayiel Woodman.
As a result of the field-burning-related accident described above:
a. Kathleen Wharton Woodman, Mia Woodman, and Dayiel Woodman suffered pain and suffering between the time of the accident and the time of their deaths;
b. Funeral expenses, in an as yet undetermined amount, were incurred for Kathleen Wharton Woodman, Mia Woodman, and Dayiel Woodman;
c. Wills Billing, the surviving child of Kathleen Wharton Woodman and the half-brother of Mia Woodman and the half-brother of Dayiel Woodman, has been deprived of the decedents’ society, companionship, and services; and
d. Decedents’ estates have suffered pecuniary loss in an as yet undetermined amount, equivalent to the amount they would have saved during the remainder of their lives had they survived.
There is also an equally lengthy claim for negligence: that Thompkins should have known the field burning was likely to be carried across freeway traffic; that he should have surrounded the fire with noncombustible ground cover to prevent it from spreading; that, once it had, he should have alerted the emergency response agencies; that he had, thus, failed to control “the fire he started on his land”; and that “The injuries suffered by decedents and the damages incurred were the foreseeable result of his negligence.”
The other claims are against the driver and his employer. Stone is said to have been negligent by driving at an excessive rate of speed, not keeping a proper lookout, and failing to maintain control over his truck. His employers, Sampson, which owned the trailer that Stone was pulling, were negligent because they knew that Stone’s driving record included offences for exceeding the speed limit and driving under the influence of intoxicants.
Against Sampson, a million dollars in punitive damages is sought. Against the farmer and the driver the damages are described as a “yet undetermined amount.”
The complaint is signed by Ted Mitchell and Mona Flores for the law firm of Steele, Cutler and Walsh.
CHAPTER 12
ROSEMARY AND I read the list of complaints. They seem to be legitimate from what I’ve learned but I’m uncomfortable with how the pending trial is out of our control.
In the meanwhile, the correspondence continues. How much did Bert and Kate save? How much did the funeral cost? How much did the monument I commissioned cost?
There are further arguments about court procedues. Paul Thompkins tries on two occasions to have the trial moved from a
federal court to either a state or a county one, and both times loses. He then asks that all the cases be heard together, not one at a time. This, too, is rejected, but at the end of the judge’s statement, I read the following: “While I am skeptical about this claim getting to a jury, or a motion to dismiss, I am bound to accept all allegations as true.”
I read this statement several times. Our main reason for going through all this legal garbage is to bring this case before a jury: a public forum before the people of Oregon. Is this judge saying he doesn’t think the case will go to a jury?
The hearings don’t stop. There are questions and faxes and parcels arriving by Federal Express. And finally, worst of all, there is a demand for depositions—from Rosemary, Wills, and me. Why do we have to give depositions? Rosemary and I weren’t even in the state at the time. I don’t want to do it. I don’t want to travel to Portland. I write to say I can’t make it, that the trip will be expensive and difficult. We are assured it is absolutely necessary, that not going will seriously damage our case. We succumb. I’m not accustomed to spending this kind of money on plane fares, merely to give a deposition, a word I’ve never even seen or heard before.
Robert Wilson, our long-time friend, picks us up at the airport in Portland. Wills has travelled with us, having spent the summer in France. We’ll be staying at the Wilsons’ home. It’s good to spend the first night in such family surroundings with old friends.
The next day we find the offices of Steele, Cutler and Walsh, a pink building in the center of town, and zip up the high-speed elevator to the wood-paneled offices of Ted Mitchell. He’s a smooth-looking man in his middle fifties, well-dressed, his hair carefully cut. He’ll be the one presenting our case in court.
His desk is located so that we have to look into the light, past him, to the view outside his huge plate window. We can’t see his face clearly. But he can see us. I’m wearing a pair of stone-washed jeans, more or less clean. Rosemary is dressed in her usual ladylike way: low heels, her hair carefully combed. Wills is in typical pre-teen clothes.
We talk in generalities for several minutes, then two other people come into the office; the meeting seems to be well-orchestrated. There’s an older man, introduced as Clint Williams, a former federal judge, and a younger woman, about forty, who is Mona Flores, with whom we’ve had so much correspondence. We all smile. They invite us to sit down.
Mr. Ted Mitchell describes what a deposition is, how it is an extension of the courtroom itself, how we are to answer the specific questions asked us and nothing more. He explains how the group asking the questions will consist mostly of insurance representatives and attorneys for other plaintiffs, as well as attorneys for the defendants. Rosemary is watching him as closely as he’s watching us. I’m looking out the window. Wills is bored and restless. Clint Williams and Mona Flores contribute comments.
It is obvious who the boss is, and he doesn’t want his steam stolen by subordinates. They, in turn, seem quite subordinate to him, or, at least, play the role well. I’m glad when we say goodbye and agree to meet the next day. I guess they were just looking us over. It seems such a waste of time and money. Thank God for Robert and Karen, the friends with whom we’re staying.
The next day we dress up for the show. Even Wills, with Rosemary’s help, spruces himself up. I wear a suit I bought at the Salvation Army for six dollars. It’s a good suit, just a mite old-fashioned, vest and all.
We park and are met by Ms. Flores, who asks us to call her Mona. She cautions us.
“Don’t answer quickly. If they say, ‘Would you tell us your name?’ you answer ‘Yes.’ Make them ask you for your name directly. That’s a kind of general rule at depositions. Give nothing away.”
We file into a long room with a gigantic table. Rosemary will be first. Wills and I are to wait in another room. This whole thing begins to take on some of the characteristics of an inquisition. I can’t help wondering, who’s working for whom here? It’s our money which is being spent.
They close Rosemary in the room with what looks like fifteen or more people, mainly men. They’re all dressed in lawyer-type clothes. Mona Flores and Clint Williams go in with her. I ask one of the secretaries for some paper and a pencil. Wills watches as I draw the scene out the window. I find some paper for him and he draws along with me. He’s quite talented.
It seems forever before Rosemary comes out. Mona is with her. Rosemary is crying. I’m just old-fashioned enough that I don’t like the idea of my wife crying. I jump up and take her hand. She’s wiping her eyes with her handkerchief.
“What is it, Hon? What happened?” She’s quiet for a minute, waves me off, trying to pull herself together.
“It was nothing they did. It was just talking about Kate and the questions they wanted answered, it upset me. I’ll be all right in a minute.”
Mona Flores has come forward.
“You don’t need to go back if you don’t want. Those damned lawyers: they just don’t seem to know what’s too much.”
“No, I’m fine. It was my fault as much as it was his.”
Rosemary leads the way back into the room where the deposition is being held. She’s there another half-hour. Wills and I are beginning to tire of drawing. I start on a portrait of him. Just then, the door opens and they come out. They’ve been in there most of the morning. Rosemary seems to be all right. She’s a little pale but she’s not crying. Mona stays right beside her.
“She was great. She fended off those wolves like a queen. They’re not used to dealing with a tough, classy lady like your wife.”
Rosemary sits down, looks out at the view.
“I’m starving. Can we go look for something to eat?”
We find a good Mexican restaurant—not TexMex, but real Mexican food.
Mona is curious about our lives, why we’re in France, about our living on a houseboat. I think she’s genuinely interested. She’s good-looking with dark hair and green-blue eyes. She has a nice figure but is wearing one of those weird suits that makes her look as if she’s been pumping iron or is wearing football shoulder-pads, or both. She looks directly into your eyes—I can tell that Rosemary likes her, as does Wills—and is a good listener. I guess that’s the way lawyers are supposed to be with their clients. She tells Rosemary she’s not to talk with me about what happened in her deposition.
After lunch, it’s Wills’s turn. Mona is gentle with him, trying to prepare him. Mona has a five-year-old son of her own and is very sympathetic. But I still can’t figure out what they expect to find out from him.
Rosemary has a book and starts reading while I go back to drawing. What would happen if she started telling me what occurred in there? Rosemary is not one to cry easily in public.
Ten minutes later Mona comes out with Wills. He’s sobbing. This is even worse than it was with Rosemary. At least Rosemary is a grown woman, has a fair idea of what’s going on. We both rush over to be with him. Mona waves us back to our seats and sits Wills in a chair between us. She’s looking from Wills to us.
“He was very brave. But when they started asking about his mother, it just broke him down. I can’t really say they were trying to do that, but there’s a terrible lack of empathy and sympathy in lawyers as a group. When they want something badly enough, they can be incredibly cruel without even knowing it.”
Wills looks at Rosemary.
“I’m OK now, Grandma. I just didn’t expect so many people looking at me, and I have a hard time even thinking about Mom let alone talking about her to all those strange people.”
Mona leans close, looks him in the eyes which are all reddened. His eyelids are swollen.
“You don’t need to go back in if you don’t want, Wills.”
“No, we’ve come all this way, we should finish it anyway.”
He stands up. Mona stands beside him, smoothing her black skirt over her hips. She looks at us. We both nod our heads, yes. Wills is right. After all this travel, we need to carry this thing through.
; Mona turns to Rosemary.
“I think it would be better if you came in and sat beside him, Rosemary. That is, if you can bear it.”
Rosemary stands and puts her arm around Wills.
“OK, Wills, sweetheart, let’s go back. It can’t last much longer.”
They leave. This time I’m too upset to draw. I pace back and forth as if I’m an expectant father.
After about another hour, they come out. Wills’s eyes are still red but not much worse than before. Rosemary and Mona are leaning over him. They look up at me and smile. Mona steps forward.
“You should really be proud of him. I am. He was wonderful. I don’t think I’ve ever seen such a young person make monkeys of such a large group of lawyers in my life. It was well worth the price of admission.”
Rosemary’s smiling, too. She looks over at Mona.
“Is it all right if I tell Will about one incident that really established the mood of the entire deposition?”
“Let me. I don’t think we’ll be violating the deposition then. As your lawyer, we can have discourse regarding a thing like this. It’s too good to keep to ourselves, anyway.”
She looks at me.
“It was Harry Fox again. Out of the absolute blue, he asks Wills if his mom and dad ever had fights. Before I can catch Wills’s eye, he’s started answering. After he’s started it would have been worse to try stopping him than just letting it go.
“Wills looked him in the eye and said, ‘Sure they had fights sometimes, but not many.’