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Feature A civics action 

A San Antonio lawsuit fights to save the Texas Constitution from Tort Reform

In the beginning it was a story about a girl. Her name was Sarah and she was almost 4. She lived with her family on the near North Side, in a two-story house with brick trim and a large yard that spread like a green skirt dappled with ash and pecan trees. Sarah was the first child of her mother’s second marriage and she, and their new home, represented a fresh start for her parents, Charles and Tracy Pollock.

“It looked like a Leave it to Beaver neighborhood,” Charles says of the middle-class subdivision nestled below the Y where West Avenue and Blanco Road meet. A classic American childhood is what the Pollocks, both schoolteachers, had in mind for their kids — a son from Tracy’s first marriage, Sarah, and another girl who was born in 1996.

A Leave It to Beaver neighborhood from the front, a nightmare from the back: Pipes criss-cross the West Avenue Landfill on San Antonio’s near North Side. Years of mismanagement by the City led to chronic methane-gas leaks that a San Antonio jury believed caused Sarah Pollock’s childhood leukemia. As the landfill subsided, it opened up sinkholes in the Pollocks’ backyard and caused more problems with the gas-abatement system. (Photo by Mark Greenberg)

But in January 1998, the Pollocks’ “for better or worse” was put to the test. Sarah collapsed during dance class, and complained of stomach pains. Her doctor diagnosed acute lymphocytic leukemia, and she began several rounds of chemotherapy that left her ill and exhausted. It would often take Sarah six to eight weeks to recover from the treatments, says Tracy, and she was sequestered in her house for long stretches of time. “We watched Toy Story over and over again. I think I know it by heart.”

Leukemia is the most common childhood cancer and it has a high mortality rate, 75 percent. But it is still a rare disease. Approximately 28,000 new cases are reported in the U.S. each year, and children account for only 12 percent of leukemia cases worldwide. Scientists believe a variety of factors can trigger leukemia, including heredity and viral infection, but these were not the cause of Sarah’s illness. Her doctor, Mahendra Patel, is convinced that Sarah developed ALL because while Tracy was pregnant, she was exposed to toxic levels of benzene from a former landfill that bordered their back yard.

In 2003, Texas voters narrowly passed Proposition 12, which grafted so-called “tort reform” onto the Texas Constitution. In personal-injury suits for medical malpractice, plaintiffs who win are limited to $250,000 in non-economic damages per defendant. The new law has had a chilling effect. Lawyers assume the expense of bringing these cases to court and they are only paid if they win. The older Tort Claims Act places a similar limit on negligence suits against a municipality. A complicated case like Sarah’s, involving hard science, reams of government documents, expert witnesses — but only one defendant — often isn’t worth the financial risk — to the attorneys or the family. In the Pollocks’ case, the money left after paying their attorneys wouldn’t begin to cover their losses.

To the Supreme Court justices, Sarah’s story isn’t just about a little girl who was hurt; it is about what Texans mean by “tort reform.” If the Court lets the decision stand, it will affirm that, under certain circumstances, Texans can sue their government for personal-injury damages. But if the Court decides to hear the City’s petition and overturns the verdict, it will cement the current trend toward limiting legal remedies for personal injury.

In 2003, Texas voters narrowly passed Proposition 12, which grafted so-called “tort reform” onto the Texas Constitution. In personal-injury suits for negligence, plaintiffs who win are limited to $250,000 in non-economic damages per defendant. The new law has had a chilling effect. Lawyers assume the expense of bringing these cases to court and they are only paid if they win. A complicated case like Sarah’s, involving hard science, reams of government documents, expert witnesses — but only one defendant — often isn’t worth the financial risk — to the attorneys or the family. In the Pollocks’ case, the money left after paying their attorneys wouldn’t begin to cover their losses.

But Sarah’s lawyers found a way around the tort-reform limits: The Pollocks sued the City under the takings clause of the Texas Constitution, which, like the takings clause in the U.S. Constitution, prohibits governments from usurping private property for public use without compensating the landowner. If the government intentionally creates a nuisance, such as light, noise, or stench from a landfill, that robs a citizen of the use or value of her land, that’s a taking, too. Article I, Section 17 of the Texas Constitution says that governments are responsible for “all damages” in such situations. Sarah’s attorneys argue that for more than 100 years, Texas courts have recognized that this language includes personal injuries to landowners whose property is taken by the government. “The Tort Claims Act, which is an act of the legislature, does not supersede or preempt the constitutional remedy,” says Sylvan Lang, an attorney for the Pollocks.

Sarah’s story is also a tale about science in the courtroom. San Antonio’s attorneys objected — belatedly, as it happens, but the Supreme Court could still take up the issue — that the studies demonstrating a link between prenatal exposure to benzene and childhood leukemia are too speculative. On this point, the City is engaging in a larger debate about whether a jury of our peers can make a valid decision in cases that hang on chromosomes, molecules, and parts per billion.

Sarah’s chemotherapy and its side effects required round-the-clock care, so Tracy quit her job and stayed home with her two young daughters. The family of five had to get by on Charles’ high-school-teacher salary while facing mounting medical costs that weren’t covered by insurance. They were also trying to sell their home, which their expanding family had outgrown.

While researching the neighborhood, the Pollocks’ realtor found a TNRCC report documenting small amounts of benzene and other chemicals at one of the landfill’s wells. Shocked and worried, the Pollocks showed the document to Dr. Patel, who took immediate action. “I definitely would not let the children play in the yard,” he told them, and in the middle of their family’s medical crisis, Tracy and Charles sent the kids to live with Tracy’s mom. Sarah’s illness was taking its toll on the entire family. Their son began to have trouble in school for the first time. Their youngest daughter was growing up almost exclusively inside with Sarah, who couldn’t play outdoors, and at other people’s houses while her parents spent long hours at the hospital.

Searching for answers, Tracy called the Texas Natural Resource Conservation Commission (superseded in 2002 by the Texas Commission on Environmental Quality), which is when she began to suspect that something was very wrong in their neighborhood. “A woman with the agency said, I’m an employee of the state and I really can’t tell you what to do,” recalls Tracy. “That was a really big clue, that she didn’t want to say too much.” Tracy took the bits of information she’d been able to gather about benzene’s danger and the landfill to the City, which gave her the cold shoulder. “They got kind of not wanting to talk,” Tracy says.

Frustrated, the Pollocks hired a lawyer, who discovered why the City was so reticent. The West Avenue Landfill has the kind of paper trail plaintiff attorneys dream about: More than a decade of documents showing that the City knew the landfill leaked benzene into nearby houses, knew that benzene was dangerous, and let the problems persist.

The Pollocks moved to Mount Mesabi in 1992 after they were married so Tracy’s son wouldn’t have to change schools and because it was a cul de sac, quiet and free of traffic. Quiet, but dangerous. The subdivision, known originally as Oak Glen Park, was built in the early ’70s around the edge of a former landfill, a common occurrence as cities expand. Cities as diverse as Las Vegas, Chicago, Staten Island, New Jersey, and Brea, California, are dealing with the legacy of old landfills near schools, delicate natural habitats, and neighborhoods. But developers who advocate reclaiming the sites say that if landfills are properly built and maintained, the risks they pose can be minimized or eliminated, and old dumps can become parks or, in a recent trend, golf courses.

No such luck at the West Avenue Landfill. City records show that as early as 1984, the Public Works department was concerned that methane gas, a smelly side effect of decomposing garbage, was leaking into the homes that ring the site. Methane, as undesirable as it is, is more dangerous for the chemicals it often carries with it, including benzene — a common ingredient in paint and solvents, and a known carcinogen.

Methane is usually extracted and burned off at landfills, but if the equipment malfunctions or isn’t properly installed, as was the case at West Avenue, the gas gets trapped underground where it takes the path of least resistance. At Oak Glen Park, that path included fault lines in the old stone quarry that held the dump and utility trenches that carried the gas under concrete foundations and into nearby homes through plumbing and electrical shafts — a “superhighway” for methane, Sarah’s attorneys call it. In 1983, the City purchased a house two lots over from the Pollocks’ future home, relocated the family, and turned it into the Mauna Kea Office for monitoring the accumulation of landfill gases in the building.

Charles says he noticed the odor in their house “the first time it rained.” It wasn’t a rotten-egg smell exactly, it was “just offensive.” After that, it seemed they couldn’t get away from the stench. It was strongest in the downstairs powder room, recalls Tracy, but she told her doctor that she also smelled it when she gardened in the back yard — while she was pregnant with Sarah.

In January 1984, the director of Public Works asked City Council to approve $40,000 for a survey of the West Avenue Landfill “to eliminate a condition that affects the health, safety, and welfare of the citizens in the area.” The study concluded that “it appears that the landfill is a source of both methane migrating into nearby homes and offices and of organic compounds migrating into the Edwards Aquifer.” Earlier in the same report, the engineering firm that prepared it observed that the methane could be carrying benzene and other dangerous gases. “Chronic exposure to trace amounts of the compounds found in the sampled wells may cause serious problems,” it warned.

“We thought that because it was the City,

that they were telling the truth.

You want to trust your government.”

– Charles Pollock

The City upgraded the West Avenue system, but the improvements didn’t operate properly for long; a 1989 memo to the Solid Waste department listed 10 major repair issues at the West Avenue Landfill. Number seven: “The pumps for the methane system need to be maintained.” Leachate — landfill sludge — was collecting underground, trapping gases and causing the landfill to sink until it resembled a crater on the moon’s surface. In 1990 and 1993, sinkholes formed in the Pollock’s back yard, caused by the landfill’s contraction.

Yet, Charles says that when he called the City before they bought their home to inquire whether the landfill posed a health threat, he was assured that there were no issues to worry about; they said it was going to be a park, recalls Tracy, incredulously. “We thought because it was the City, that they were telling us the truth,” says Charles. “You want to trust your government.”

In January 1993, the City applied for an alarm permit for the Mauna Kea house. The form asked if there were any safety issues that police or security personnel might encounter on the property. The City replied: accumulations of landfill gas or methane. Sarah was conceived in October of that year. “If it is found that the `gas` is carrying organic compounds, such as benzene and tetrachloroethylene, from the landfill into the houses, the liability problems of the City could increase,” the 1984 engineering report had predicted.

During the trial, Sarah’s doctor and two landfill engineers, one of whom worked for the City, agreed that Tracy had been exposed to dangerous levels of benzene during her pregnancy. Benzene’s link to cancer has been established for more than a century; recent discoveries have shed light on the damage it causes to our most basic biological building blocks, damage that can mushroom into full-blown diseases such as Hodgkin’s lymphona and ALL. A 1992 study found that children whose mothers were exposed to significant levels of benzene in the year prior to the child’s birth had a greater risk of childhood cancer. In 1998, researchers from the University of California, Berkeley, School of Public Health reported that benzene exposure leaves a biomarker, a genetic scar, on DNA, our cells’ roadmap. The damaged DNA in turn makes its carriers more likely to develop certain cancers, including leukemia. Prior research “has clearly shown that genetic changes related to leukemia development occur before birth in a number of cases,” they noted, adding, “Benzene crosses the placenta.”

Patel, comparing these findings with Sarah’s DNA, testified that her chromosomes bore the unmistakable mark of exposure to toxic levels of benzene.

The City has attacked the science underlying the Pollocks’ case, a moot point, perhaps, because the City failed to object before or during the trial, but not a point the City is willing to concede. A layperson could imagine that at those annual mayoral conventions there is some peer pressure on this subject. New York State has two large toxic-landfill cases that are proceeding slowly through the courts. New Jersey has asked federal prosecutors to look into pervasive environmental pollution caused by the Ford Motor Company under the not-so-watchful eye of local government. Even in the wake of A Civil Action and Erin Brockovich, the dam holding back environmental-poisoning lawsuits has yet to collapse, and no city wants to be the little Dutch boy whose finger gives out, not with so many leaky landfills in sensitive locations.

But public acceptance that benzene and leukemia go together like smoking and lung cancer may not be far off. In early 2005, an English researcher reported his findings that exposure to benzene and other airborne pollutants before birth dramatically increases the risk of childhood cancer. And while that study was greeted by a few catcalls, “I don’t think there’s much question,” says Ted Schettler, a doctor and director of the Science and Environmental Health Network, “`that` not only leukemia, but other childhood cancers are initiated in utero. That’s an increasingly commonly accepted notion.”

The City hasn’t protested much about its operation of the landfill — perhaps because the record on that point is damning. The City seems to be saying, in essence, So what? You cant make us pay for it. We can’t afford to and Texans don’t want us to. The Tort Claims Act, it argues, means that we don’t want companies or governments to pay for their mistakes, whether it’s negligence, nuisance, or any other cause of action. Which is where a 116-year-old lawsuit comes in to play.

The law is not written in stone. You can read the relevant passage, “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made ” and not have any idea what that really means for John Doe. The courts use legal decisions to expand or constrict the meaning of laws in response to social pressures, such as the tort-reform movement, and other factors, such as new medical knowledge.

In 1889, the Texas Supreme Court, relying on the Texas Constitution, held that Forth Worth had to compensate a man who became sick because of “noxious and offensive odors” released by a municipal dump next door to his property. Since then, courts that have dealt with cases based on City of Ft. Worth v. Crawford have often sought to keep that loophole as tiny as a crochet stitch. But the Pollocks’ attorneys argue that as long as there is an intentional taking — meaning, in Sarah’s case, that the City knew benzene was invading adjacent properties and knew that benzene is toxic but continued to mismanage the landfill — that harms the property owner, the plaintiff wins.

The City — and the State, which has filed a supporting brief — argues that if the Pollock verdict stands, plaintiffs will be tripping over themselves to sue the government. (The City Attorney’s office did not return calls for comment before press time.)

But Gilbert Vara, who with Lang represents the Pollocks, observes that the tort-reform law still applies to negligence cases, and the Fourth Court of Appeals, which ruled in the Pollocks’ favor, has already disappointed plaintiffs in another takings case. In Karnes County v. Kendall, a couple sued because a sewer line overflowed on their property, but the court said that there was no evidence that the county acted intentionally.

William Powers, the dean of the University of Texas law school, used to tell his Torts classes that the civil-lawsuit system is simply a mechanism for apportioning social responsibility — and costs. It’s worth noting that it was a San Antonio jury that ruled in favor of the Pollocks, in essence voting against its own wallet and for public culpability.

Today, as a survivor of childhood leukemia, Sarah has up to a 30 percent chance of a relapse, and her parents continue to deal with the expenses of her illness. But for now Sarah has moved on. She is a happy and healthy tween who loves playing clarinet and, says her father, even enjoys middle school. Her story is now our story, and the Texas Supreme Court may write the final chapter. When it comes to problems that we as a society created, who will pay the bill? Depending on how this story ends, it will either be a burden borne alone or together.

This story was corrected on November 15. The original story incorrectly cited the 2003 Tort-Reform bill as the source of the damages limit in negligence suits against municipalities. It is actually the Tort Claims Act.

By Elaine Wolff

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