Amurph11’s #CBR4 Review #3, The Buffalo Creek Disaster by Gerald Stern
The Buffalo Creek Disaster is not your average legal drama. For one thing, since the case ends up being settled at the last minute, most of the action takes place outside the courtroom. For another, it is written by the lawyer who tried the case, which makes it significantly drier than most amateur legal fare. Nonetheless, it is a compelling look at the settlement process, and the daunting and intricate legal procedures involved when a community decides to go up against a corporation.
The disaster in question took place on February 26th, 1972, when one of the coal waste impoundment dams of the Buffalo Creek Coal Mining Company (a subsidiary of Pittston Coal Company) burst, unleashing 132,000,000 gallons of black water on the residents of the Buffalo Creek mining camps below. 125 people were killed instantly, drowned in the 30 foot high wave of waste water. Over a thousand people were injured, and 4,000 more were left without homes. In a move demonstrating a stunningly poor grasp of proper PR, the Pittston Coal Company’s first move was to protect itself by declaring the disaster “an Act of God.”
Thus began the David-and-Goliath legal battle of The Citizen’s Commission to Investigate the Buffalo Creek Disaster vs. Pittston Coal Company. The highly religious community of Logan County, West Virginia was enraged by the usage of the term “Act of God.” Robert Weedfall, West Virginia state climatologist, responded thusly: “‘Act of God’ is a legal term. There are other legal terms, like ‘involuntary manslaughter because of stupidity’ and ‘criminal negligence.’” The residents of Logan County were more succinct: “you can blame the Almighty, alright – the almighty dollar.” They banded together and sought the services of Arnold & Porter, LLP to represent their interests. Gerald M. Stern, author of this book and former civil rights lawyer for the US Justice Department, took the case.
For a case that culminates in a settlement, The Buffalo Creek Disaster plays very much like a courtroom drama. Part of this comes from the compelling subject matter: it is tough to convey just how horrifying the prospect of drowning in a flood of coal sludge would be, and Stern does the right thing in transcribing the survivors’ stories directly instead of trying to paraphrase them himself. The haunting and horrible descriptions of the survivors’ stories brought me to tears more than once. One man’s five-month pregnant wife couldn’t make it out of the house, and implored her husband to “take care of my baby” as he struggled to carry his son through the coursing river of sludge to safety. Later, his son was washed from his arms, never to be seen again. But it is not just these gut-wrenching testimonies that make the story so gripping. Nor is it the quality of writing; Stern writes very much like you’d expect from a lawyer (an example, from his reaction to the testimony above: “when I heard this story, I became emotionally upset.”). Instead, the quality of the story comes from the appeal of its narrative: a group of poor coal miners and their families go up against one of the largest industries in America – and they win. Part of this narrative is also the landmark nature of the case itself. Stern chose to focus on pursuing compensatory damages not only for his clients’ purely physical losses, but for their emotional losses as well. Stern was making what was at the time a groundbreaking argument: that his client’s deserved to be compensated not only for their lost homes and income, but for the irrevocable damage that was done to their psyches through this incredible trauma. In doing so, this case became a battleground for the recognition of what would later become known as post-traumatic stress disorder.
Part of the reason Stern chose to focus on this issue was to bypass the West Virginia maximum pay-out for compensatory damages (which was $10,000 at the time), and because he did not like his chances for winning significant punitive damages from a jury of West Virginians. One of the more comedic aspects of the book is how Stern comes up with the amounts he decides to sue for and later request a settlement for – essentially, by the seat of his pants. These sorts of details and the book’s larger emphasis on the legal process make it particularly instructive to those in the legal profession; this is probably why it’s assigned in most first year Civil Procedure classes (full-disclosure: my boyfriend is currently enrolled in just such a course, which is how I came to read this book in the first place). To those of us outside the legal profession, there’s still a lot to enjoy: Stern’s description of preparing for a trial as rehearsing a play is the one instance where he comes out of his just-the-facts-please narrative shell. In this moment, you can understand why he does what he does, in spite of the enormous obstacles and emotional hardship of these kinds of cases. The settlement discussions are also satisfyingly intense – the character of Zane Grey Staker, lead counsel for Pittston, is straight out of a John Grisham novel. The deposition process is the one area of the book that I wished had been penned by a more seasoned dramatic writer. The endless examples of reckless behavior on the part of Pittston and its representatives were astounding, and would have benefited from a slightly less clinical retelling. Through exhaustive research trailing down leads from depositions, Stern’s team was able to make a case for not only negligence, but wanton recklessness on the part of Pittston. They found out that Pittston had ignored a number of industry warnings (including one from their own insurance company) to not block off waste water with refuse, or to at least install a spillway to prevent overflow. Two days before the dam failed, Pittston executives were at the Buffalo Mining Company, and were told by one of the executives that the ongoing rain was a cause for concern, particularly for Dam #3 (the dam that later failed). They didn’t even look at it. Steve Dasovich, the mine superintendent, told the sheriff’s office there was “no cause for alarm” thirty minutes before the dam failed, despite repeated concerns from the community about the dam level, and his own observations of the alarmingly high level of the impoundment water.
In the end, details like this enabled Stern to draft a trial brief that emphasized how highly damaging a public trial would be for Pittston, and the company was forced to settle for $13.5 million (the process by which they came to this number is one of the most interesting and comedic exchanges of the book – one of Stern’s team members refers to it as “the Sting.”). The citizens of Buffalo Creek were thrilled with this number, beyond what they had ever hoped. As one of the plaintiffs said, “the ‘act of God’ was when the people banded together for a just and right cause through the process of law.” But the case did more than just bring justice to the survivors. In addition to compensating the residents of Buffalo Creek for their physical and emotional losses, it laid the groundwork for post-traumatic stress disorder becoming a recognized condition under the Diagnostic and Statistical Manual of Mental Disorders (the lessons from Buffalo Creek were later used to help psychiatrists responding to 9-11). Survivors of similar disasters have been inspired to undertake similarly daunting lawsuits against Big Industry. But regardless of the lawsuit’s enduring legacy, another one of the plaintiffs best summarizes its effect on the residents of Buffalo Creek: “The money can help us lead an easier life, free from some of our problems, but it can never put our minds completely at ease, because nothing but death can stop our minds from going back to that morning.” It’s going to take a long time for those images to leave my mind, as well.