Authors: William Wharton
Ever After (19 page)
Governor, how do you defend the fact that this obviously deleterious activity continues? The land itself is being depleted, despite seed-growers' contentions to the contrary. Burning converts nitrogen to phosphates; the soil needs nitrates more than phosphates. The smoke is a summer-long pall over the length of the Willamette Valley. It is a menace to the health and well-being of those living there. The smoke is ugly and the burned fields are ugly. A beautiful part of the world is ravaged by a few, for the profit of a few, to the detriment of the many.
Governor, you can stop all this with a word. Why don't you? Would you defend marijuana growers or cocaine growers for the same economic reasons? They, too, would be profitable crops, only another kind of menace. Give the word, Governor!
It is only necessary to outlaw field burning, help the grass farmers find other alternatives to their current reckless system which despoils and desecrates your beautiful state. Let us not have any other families go through the grief, sorrow, sadness we have suffered.
I've enclosed photos of the bodies in the morgue in Dallas along with other photos in better times, of our children. I pray it gives you some idea of what we've lost. I think, more than any statistic, it will help you understand what's involved.
Nearly two weeks later, October fifteenth, I receive a phone call from Bill Buchs, Oregon Secretary of Agriculture. He is phoning only to pass on his own and the governor's condolences for what happened. He's not going to defend or explain it.
But I have many questions and we move into a discussion which lasts almost two hours. Finally he says I must learn the character of the Oregon grass-seed farmer, who does things the way he's always done them and doesn't want to change and doesn't want anybody else telling him what he ought to do. I ask if it isn't his responsibility as Secretary of Agriculture to make the farmer change his ways when what he's doing is against the public welfare. He ducks that one. He says they're just stubborn. Matt, who has picked up the listening device, a second earphone on a French telephone, takes the phone from me.
“Mr. Buchs, I am Matt Wharton, Kate's brother. I'm a biologist, a graduate of Trinity College in Dublin and I took my advanced degrees in plant pathology at the Sorbonne here in Paris. I have contacted friends in my field around the world at various educational institutionsâin New Zealand, Australia, England, different parts of Europe, North Africa. I've studied the problem of stubble disposal which killed our family and here are some of the things I've found out.
“It seems that since Oregon planted its first grass seeds in the forties, many new patents have been registered, mostly for seeds resistant to the diseases and pests for which the growers in Oregon claim it is necessary to âsanitize' their fields. It would cost little for Oregon farmers to pay these small patent costs and eliminate the problem which jeopardizes the lives of the people in the Willamette Valley.
“It is the Oregon Seed Growers' Council that still insists on its old grass seed patents, even though they have been superseded by superior versions.
“The solution recommended to me is to plant and then use the stubble as a field compost; that is, cut the grass and leave it there so that it can be plowed back into the land. This returns the nutrients to the soil and helps keep down weed growth. There will be no blind seed or molds or the other diseases which have plagued grass-seed farmers in Oregon. That makes more sense than burning.”
Matt pauses and stares up at the ceiling. Then he continues. “You can't bring back my sister, my brother-in-law, or my two beautiful nieces, but it would help us to know that something is being done so no one else suffers as we have suffered.”
Tears are running down his face as he hands me the phone.
Secretary of Agriculture Buchs insists that the governor is against field burning, that he'll do everything he can to stop it. That's what I've been wanting to hear. We finish the call in what seems to me to be agreement. Matt is listening in on the other earphone. We put down the phones and celebrate by opening up one of his prized bottles of Burgundy.
We celebrate too soon.
A few days later I receive a letter from the governor. It is written on October nineteenth.
Dear Dr. Wharton:
I apologize for not writing you sooner to express my personal sorrow and regret about the tragic death of your daughter and her family. Their deaths deeply grieve me and everyone else in Oregon. I can assure you that state officials responsible for administering the field burning program share this sorrow, even though they did not extend their sympathy to you directly.
Your letter reflects your serious efforts to understand field burning and grass seed growing in Oregon. The Oregon Legislature debated the practice extensively in the 1970s. The Legislature concluded then that banning field burning, given the lack of alternative practices, was not in the public interest. The Legislature directed the Environmental Quality Commission to regulate field burning to reduce air pollution and to seek alternatives to the practice. Millions of dollars have been spent by the state since then to develop alternative crops and ways to avoid burning. I am told that, so far, none of the alternatives found are complete solutions.
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 everybodyâbroadside. 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 oneâespecially 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 pointâthat the deaths were of people from a foreign country, that the deaths occurred on an interstate highwayâand 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 sueâthe farmer who started the fire or the trucking company that owned the eighteen-wheeler that ran over the vanâbut 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.
R
OSEMARY 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?
