ExposureBlog

When I first began my consulting business, I would take notes on whatever paper was handy at the time: pocket notebooks, 8-1/2 x 11 college-ruled books, yellow pads, you-name-it.  During the time I worked with the federal government I began the practice of keeping what I called a “schedule book,” which was mostly a to-do list.  Over time, it  became the hard documentation for countless phone numbers, contacts and random thoughts regarding my projects.  When I started up my business I used the “schedule book” to keep track of my progress in my cases.

Then came the day I received a subpoena deuces tecum from the opposing counsel on a case I was working on.  Roughly translated, it means: come meet with us. . .and bring along every note you have that has to do with this case.   That meant, of course, that I had to hand over a stack of pocket notes, three or four different kinds of regular notebook paper. . .and worst of all, my schedule book.  My schedule book, you see, had notes I had written down regarding previous cases.  Not good at all. 

As it turned out, the case settled before my deposition took place, so no one got to see the schedule book.  But that was the day I quit writing notes about cases in the schedule book. 

From that day on, the notes would all be on yellow legal pads, which I would number and clamp into a binder along with the case worksheet. Now, when I receive the deuces tecum, I just take the case binder.

Of course, no system is perfect; the one flaw for this one is that sometimes–rarely, but sometimes–not everything I take to the deposition comes back.  Technically, it goes from opposing counsel’s office to the court reporter, sometimes back to counsel’s office, then back to the court reporter, and then—maybe weeks later—back to me.   In the process, books, photos and documents have gone missing, never to return.   In preparation for the day the binder containing the handwritten notes vanishes, I had taken to copying the notes into a computer file.  While this helped me to understand the information and clarify the issues, it was also time-consuming.  I was faced with a choice: copy every note I had taken, or risk the notes vanishing at some point.  In a recent attempt to resolve the problem I created an “issues” page for each case, where I list the salient points.  In doing so, I discovered that most cases seem to boil down to just a few issues—lack of training, lack of communication, inappropriate procedures, inadequate instructions for the job, etc.

FLYTs

Then there are the Post-It Notes (registered trademark) flyts. . .”Funny Little Yellow Things” as one lawyer called them.  I read depositions very carefully and mark important passages with yellow post-it notes.  Typically, I will write on these FLYTs statements like “Critical” “Very Important!!!!” “Check this”, etc.   Interestingly, the meaning of the notes change as the deposition progresses—the early FLYTs reveal the location of information central to the issue, while the later FLYTs mark passages that contradict or underscore prior testimony or the testimony of other witnesses.  In other words, all FLYTs are not equal in importance, and some have no importance whatsoever except to mark a passage that I have already read. 

A well-examined document may have hundreds of FLYTs sticking out from all exposed edges–forcing the opposing counsel to read each and every one.  Only rarely have I been asked about the comments found on the FLYTs—because sometimes it’s unreliable.  A passage that I marked as “critical” when I began reading the document may turn out to be far less important by the time I finish reading it.  Of course, I’m not about to go back and cross through the word “critical” on such a FLYT—who knows when another doc could provide info that would support and thus revive the importance of the original passage.  When looking through case documents information emerges slowly.  A comment created in the final analysis may be 180 degrees different than a comment created during the initial stages of the investigation.

Every investigation and analysis has its share of dead-ends, but the documentation leading to those dead-ends should be included in the total package, if only to answer the opposing counsel’s question, “have you thought of this?” 

Suppose you’re a plaintiff lawyer with an injured client.  You suspect the defendant, a large construction company, has some very bad work practices that put employees of subcontractors at risk.  You only have so much time and funds available.  After the eyewitnesses—and of course, the safety guy—who should you depose? 

Some of of my clients on the Plaintiff’s side like to go top down–deposing the CEO or the President of the company first, then work their way down to the managers.  Others prefer to work their way up–foreman to supervisory personnel.

At some point–usually with the mid-level managers they will encounter something like dense fog obscuring all further discovery: the malady known as CCA: Command Chain Amnesia.

While you or I might remember inconsequential meetings with people that took place years ago—and may even remember what was said, there are highly-paid people working as managers who won’t remember talking with anyone.  They will be unable to recall meetings, conferences and even what they took in college.  One president for a VERY large Texas construction company claimed on the record that he didn’t really know anything about electricity (the case involved an electrocution.)  When it was pointed out that he also had an engineering degree, he said he couldn’t recall taking any courses that had to do with “electricity.” 

Amnesia isn’t limited to the corporate world.  A CIA analyst by the name of Tyler Drumheller is writing a book that will no doubt shine a bright light on command chain amnesia in the run-up to the Iraq conflict.  It seems he told both his boss, a man named John E. McLaughlin as well as the Director of the CIA himself that the intelligence regarding weapons of mass destruction was seriously flawed–well before the information was used in speeches by both the President and by the Secretary of State.  When asked to comment, neither McLaughlin nor Tenet could remember ever talking with Drumheller. 

So, I suppose it’s a waste of time to be angry with the mid-level managers when they fail to remember important details.  It seems to affect the big guys as well.  There are, of course, few things that can be done to make someone remember something, especially when doing so makes them look foolish. For the person asking the questions, this can pose a real problem.

I did hear once about a case in which a feisty trial lawyer (is there any other kind?)–after hearing a deponent repeat “I don’t remember” for about four hours—finally demanded to see the man’s medical and personnel records.  Seems he wanted to find out if they guy was taking drugs that would cause amnesia—or in the alternative, why a company would even hire someone who couldn’t remember anything. 

Thankfully, command chain amnesia doesn’t usually cause problems for the those who have it.  Some, like George Tenet,  go on to win the Presidential Medal of Freedom.

Back in 1979, while with OSHA, I received a phone call from a medical student.  His neighbor, who worked at a nearby petrochemical facility in Texas City, TX, had been diagnosed with a brain tumor.  Against all odds, this neighbor worked in the very same facility where another tumor case had appeared almost twenty years earlier.  I investigated, and soon turned up four cases—all at the same facility.  We called in the epidemiology team from the national office and before long, we had identified 10 cases.  Worse, we found the possibility of 18 more cases at another facility about 40 miles south of the original cases.  Unfortunately, the 18 suspect cases was at Dow—and Dow didn’t consider 18 cases much of a problem.  When Industrial Hygienist Dave Elskamp and I visited Dow to open an inspection there, we were shown the door. 

Then our troubles promptly continued.  Pro-OSHA Jimmy Carter was out, Ronald Reagan was in, and the new OSHA boss, a Florida contractor named Thorne Auchter, didn’t seem to like OSHA.  Not long after our Dow visit, we received word that no further epidemiological work was to be done on this case.  Seeing some pretty obvious writing on the wall, the principal investigators got together, wrote up a paper and sent it off to a new medical journal for consideration.  The paper was published by the American Journal of Industrial Medicine, —just as the new OSHA Director terminated the study—and two years later, terminated the OSHA office where the study had originated.

Eventually, a researcher at the University of Texas School of Public Health continued work on the case via a string of National Cancer Institute grants that eventually totalled about $700,000 over nine years.  Despite the massive amount of money poured into that study, no final report has ever surfaced.

I’ve heard of other possible brain tumor clusters-the 1985 cluster in western Missouri, the 1996 Amaco case in Napierville, IL, the Pratt&Whitney case in North Haven Connecticut,and recently a possible cluster in Ocean City, NJ.

Interestingly, the researcher who took over the OSHA brain tumor study in 1980 was also the principal investigator of a paper discussing what is probably the Amoco case in Napierville.  The findings?

“Although conclusions are limited by the small study population and lack of specific exposure data, these findings were not consistent with an occupational explanation for the observed brain tumor cluster.”

Compare that finding with the statement from Monash University epidemiologist Michael Abramson regarding the Melbourne RMIT cluster:

“To be quite frank, I think it’s an unfortunate coincidence.”

Perhaps.  But when these unfortunate coincidences–stretch from Texas in 1979 through western Missouri, through Napierville, IL, through New Jersey and now, in Melbourne, Australia—well, it would seem that something other than chance might be involved.

…that can ruin your day.  Think you have enough to worry about? Take a look at this.  After you’ve gotten used to the fact that we’re all gonna die sooner or later, you can have a little fun with the concept here.

My last two posts about the Divine Strake shot were titled:A New Mushroom Cloud at the NTS and New Mushroom Cloud II.  Well, after thinking about it, I doubt if the Strake shot will produce a real, bonafide mushroom cloud, the kind that begins with a fireball encircled by a spinning torus of debris shooting up into the sky (”ballistic rise”) while below on the ground is a churning duststorm hundreds of feet deep.  And as for a stem reaching 30 or 40 thousand feet into the sky. . .?  Well, sorry. There probably won’t be one of those either.  Why?  The detonation will not be hot enough, and the fireball–if there is one—won’t last long enough to impersonate even a tiny fission blast.

That’s not to say that there won’t be dust particles thrust hundreds of feet into the air—where they might catch the currents heading northeast toward Boston and Hartford. 

But probably no mushroom cloud.