The Buffalo Creek Disaster – Book Review

The Buffalo Creek Disaster

Please write 5 pages reflecting on the book The Buffalo Creek Disaster and what it tells you about tort law and the litigation of tort cases. You may use the questions below or some arrangement of them as prompts or you may write generally.

1. What was the legal and strategic significance of whether Stern could make out a claim against Pittston, rather the Buffalo Mining Company? (e.g., p. 13, 49-52, 7176, 83-87, 132-33)
2. What do you think about Pittston’s strategy of offering money to survivors who agreed to forego any lawsuit against the company?
3. Explain how West Virginia’s then (now repealed) law limiting recovery, in the absence of substantial financial dependence on the deceased by survivors, in wrongful death cases to $10,000 impacted the case.
4. Most tort plaintiff’s pay for their attorneys through a contingent fee.This was true in the Buffalo Creek case. Describe how payment of attorneys by contingent fee impacted the lawsuit. (pp. 20, 30)
5. Discuss the jostling between Arnold and Porter and local lawyers about who would get to represent victims of the disaster. How did this competition between lawyers impact the cases of the victims? What do you think about the then-existing rules concerning lawyer solicitation of clients and the approach of the local bar association?? About the involvement of Pittston’s lawyer’s in protecting the injured survivors from the alleged predations of out-of-state counsel? (p. 32-35, 160-62, 182-184, 226)
6. Discuss the turns and twists that Stern took in his legal career. What if anything, does this tell you about a career in law?
7. What do you think about Stern’s remark that [t]he courts usually are a great pace to delay matters, but no place to go if you need help in a hurry? (p. 38)
8. What impact do you think that meeting with victims and personally hearing their stories had on Stern’s incentive and ability to doggedly pursue the case? (p. 36 et seq., pp. 79-80, 94-100). Is it helpful, harmful, or both for a lawyer to get emotionally involved in his or her case? Consider also this statement: I was reluctant to end [i.e., settle] the case because I then would have to return to more normal legal practice. I doubted I would ever find another case as meaningful to me as this one. It had become my life, filling all my waking hours with excitement and purpose. I suspected I would lose this exhilarating feeling about the practice of law once I had to give up Buffalo Creek. (p. 195)
9. What was the significance to the case of proving that Pittston’s conduct rose above mere negligence and amounted to recklessness? (pp. 53 et seq..)
10. Compare the coal company’s argument that it had built the dams in accordance with custom and usage in the industry with the TJ Hooper case (p. 306 of your casebook_.) How does the 1926 West Virginia /Fourth Circuit decision described on pp. 54-55 line up with TJ Hooper?
11. What was the relevance of evidence of prior accidents from refuse pile dams? (pp. 56 et seq., 125-26, 198-99, 200-205, 230-37)
12. Discuss whether an argument could have been made that the building and maintenance of the refuse pile dam was an abnormally dangerous activity under either the Second or Third Restatement tests and thus potentially subject to strict liability. Why do you think Stern did not attempt to proceed on such a theory?
13. What was Stern’s best evidence of negligence??
14. Stern was a bit of a pioneer in this case in asserting damages for mental suffering/psychiatric injury/survival syndrome (See p. 62, pp. 81-82 , 101-106) How would Stern’s case hold up under the various rules that apply to recovery for emotional harm parasitic, impact rule, zone of danger, emotional harm manifesting as physical harm, various bystander rules? Consider Zane Grey Staker’s remark that proof of mental suffering requires more than mere puff and blow. (p. 81) Consider also deposition questions of survivors such as did any of the water from the flood waters or the trash and debris on the floodwaters ever come against your body, hit against your body or cause an impact with hour body? and did you receive any physical injury to your body? (p. 157) What might be the significance of testimony that I watched all of it, but I got deathly sick at my stomach, and it seemed like I just wanted to pass out. (p. 157) Consider the classifications of psychic harm by plaintiffs social workers and psychologists (pp. 206-15) See also p. 275 and the relationship of the case to the development of the PTSD diagnosis.
15. Related to this, how would Pittston’s motion to dismiss the 33 absent plaintiffs fare under the various theories for recovery of stand-alone emotional distress? (p. 219-26) What dangers were posed to Stern by this motion and why was filing it a good strategy by Pittston’s lawyers? (For the result of the motion, see p. 248)
16. What do you think was Stern’s best evidence of negligence?? Of recklessness?
17. How do you respond to Stern’s closing paragraph in his paper to the Court opposing further delays in the case? After detailing the discovery travails of the plaintiffs, he wrote: Enough. Already two years have passed since the Buffalo Creek Disaster. The second anniversary will occur on February 26. Let us end this interminable discovery and get on with the trial of this case. (p. 175) Do you agree with the comments of Stern’s Arnold and Porter colleagues that it was not the right tone and should have been more lawyer-like?
18. Describe generally what you learned about the tort system (including both law and process) by reading this boo