Rare Spirit of Cooperation Streamlines I-5 Crash Suits : Courts: Lawyers for plaintiffs and defense are collaborating to keep worst U.S. highway accident from becoming a legal pileup.

FRESNO —  On Thanksgiving weekend in 1991 a dust storm blew through fallow cotton fields west of here and engulfed Interstate 5, triggering a midday pileup that killed 17 people and injured 151, a scene of charred bodies and scorched metal that rescue workers compared to war.

Today, the massive legal case generated by the worst highway accident in U.S. history is wending its way through Fresno County Superior Court, a procession of 99 plaintiffs, 174 defendants, 104 attorneys and 46,822 documents.

The state of California has agreed to pay $3.4 million, one of the largest such awards, to one woman who nearly burned to death trying to save her husband and two small children from a fireball that consumed them. Still, a case so ponderous remains that the judge and many of the attorneys hope it will never see the light of trial.

“You’re talking about a case that could tie up that courthouse for the better part of a decade,” said Darryl Doke, the deputy attorney general handling the 36 claims against the state.

“It would be a quagmire,” said Burlingame attorney Frank Pitre, who is representing the family of one of the deceased.

So attorneys on both sides have done something attorneys are not wont to do. They have reined in their egos and visions of multimillion-dollar judgments and agreed to streamline the case so that mediation might work.

Their willingness to limit paperwork and depositions has saved insurance carriers and taxpayers hundreds of thousands of dollars and will probably put more money in the pockets of victims. Indeed, they have acted so downright civilly that the judge in the case expects a “global” mediation settlement within the next few months.

“The cooperation by all the attorneys has been remarkable,” Superior Court Judge Stephen Henry said. “There are no ambulance-chasers in this. Just the opposite.”

It would be nice if the case offered a magic system that could be shipped to other courts that are besieged by complex litigation. But both sides agree that the same method could be tried with a different set of attorneys and the case would drag on for years.

Mediation has a good chance of working here, they say, because everyone recognizes the imponderables posed by the case--questions better left out of a courtroom.

Who, for instance, is to blame? Is a dust storm an act of God? What about the farmers whose land abuts the freeway? Can you hold them responsible for the dry conditions of their land--conditions that clearly fueled the storm--even though they faced a fifth year of drought? And then there are the individual drivers, many of whom were going too fast for the conditions. In an accordion-like reaction, can one driver blame another driver two miles up the road? In other words, how do you establish cause?

It takes little wind to whip up the tumbleweeds and dust when the earth is parched on the San Joaquin Valley’s west side. That Friday, along the main artery linking Southern and Northern California, the gusts ranged from 15 m.p.h. to 40 m.p.h.--some of the worst winds ever recorded in the area.

“It was so dark, so dirty, so dusty, that we had even lost sight of the wiper blades on our windshield,” one survivor said. “We couldn’t see.”

Rescue workers compared the two-mile column of 164 cars and big-rig trucks to the remains of Iraqi armored vehicles destroyed by American bombers during the Gulf War. A state task force blamed drivers’ high speed for the tragedy and found that authorities had acted properly in not closing the freeway.

Nine months later, the lawsuits began pouring in. Judge Henry was given the job of coordinating the pretrial process, and one of his first tasks was to look back at the complex litigation growing out of the 1980 MGM Grand fire in Las Vegas and the 1987 Dupont Plaza Hotel fire in San Juan, Puerto Rico.

Some of the attorneys in the traffic crash case had represented clients in one or both of the earlier fires and met with Henry on how to structure the case. They decided to assign two steering committees--one plaintiff, one defense--to oversee the discovery phase.

“In MGM, the plaintiffs seized control of the case and buried the defense in paper,” said Fresno attorney Stephen Cornwell, chairman of the defense committee. “I wanted to make sure that a lot of useless depositions weren’t taken just for the sake of scaring the insurance carriers into settling for big sums.”

Both sides agreed to consolidate the case, in effect treating it as one huge litigation. They established a depository at a local court reporting firm where all documents were filed. Instead of copying and mailing a 30-page document to every attorney in the case--half of whom wouldn’t be interested anyway--the depository sent a one-page index informing them that the document was available. This alone cut the paperwork by more than half.

To reduce travel costs, depositions were held at one location in Fresno. Each victim or witness could only be deposed once so all interested attorneys had to be present. Written and oral questions were kept to a minimum.

“We didn’t want people responding to 150 of the same sets of questions,” said Rick Watters, the Fresno attorney for the woman who got the $3.4-million settlement. “Of course, these are attorneys and we like to ask questions.

“Some of the rookies, in particular, felt that to impress their bosses they had to be heard, even if that exact question had been already posed and answered. But it never got out of hand.”

Rather than sue a driver two miles up the road, Judge Henry ruled that each party could only bring action against those drivers who ended up clustered in the same accident pod.

Despite the paring down, big cases like the I-5 pileup can be a window into people’s ingenuity, attorneys say.

There is, for instance, the young Santa Rosa woman who says a small facial scar suffered during the crash ruined her plans to move to Los Angeles and become a movie star. And the Spanish balladeer famous from Mexicali to Delano who says the dust in his throat and an injured back cost him tens of thousands of dollars in missed engagements. And the Modesto woman who says she was knocked unconscious during the crash and when she awoke she didn’t know the husband next to her.

“Would you give us your full name, please,” she was asked during her deposition.

“They say it’s Gracie B. Smith.”

Smith said she couldn’t recall her age, marriage, son or certain words in the newspaper. But she did remember the vivid details of the accident, of holding her parrot, Honey Birdy, and seeing the driver behind them who bore an uncanny resemblance to her brother.

“I have bits and pieces . . . ,” she explained to a defense attorney who doubted her memory loss and back injuries. “I mean I just can’t remember. . . . I just make up stuff.”

There is no disputing what grief that wind brought to 31-year-old Dora Smith, whose case is the only one settled so far. The Paso Robles woman was riding in the car with her husband and two children when it crashed in the blinding dust. She suffered second-, third- and fourth-degree burns to her face and half her body as she tried futilely to save them. In a deposition, she testified that the last thing she remembers before their 1980 Monza blew up was her 4-year-old son Christopher screaming: “Mommy, Mommy, it hurts. Mommy, Mommy, it burns.”

Her attorney, Watters, argues that the state should have closed I-5, which it did during a dust storm a month later. Short of that, he argues, Caltrans should have placed electronic signs along the roadway warning of high winds and dust storms and advising drivers to slow down or pull over.

“The strongest argument Rick Watters had was his client, Dora Smith,” said Doke of the state attorney general’s office. “I’ve been in this business 22 years and nothing could compare to her physical and emotional suffering.

“I thought it was my responsibility to the public to make sure this case was never presented to a jury.”

Retired Superior Court Judge Eugene Krum has been mediating the case since September. He said he expects to settle all the claims in the next three months, with the exception of Smith’s post-collision fire lawsuit against General Motors and perhaps a few others.

Sources say Krum will ask the defense side to put up $12 million in a “global” settlement. Defense attorneys will probably try to negotiate down to $8 million. If they succeed, a plaintiff whose claim was valued at $100,000 by Krum will receive $66,000.

Such a settlement has the added attraction of avoiding such sticky questions as what liability, if any, farmers carry for the dust storm. Neither side admits fault in mediation.

“This is a story that belies the public’s perception of the legal profession,” Krum said. “From the very beginning, lawyers on both sides realized the horrendous mess if they didn’t cooperate and hold costs down. They have showed a great devotion to their clients and the public.”