There Must be Something in the Water!

Fifty years ago this month was my maiden voyage into the world of law and forensics. As a low ranking staff member in the Department of Agricultural Chemistry at Oregon State University, I was an acting supervisor of several technicians and graduate students who performed routine testing and analysis of forage and blood/tissue samples in support of research projects into a number of animal and human related studies in heavy metal and other chemical toxicology. With a major interest in biochemistry and physiology, I found myself sometimes at odds with the laboratory management, scheduling and administration requirements of my job. I loved to “butt my belly against the bench” performing “wet chemistry” analysis and method development. In these early days, before instrumental analysis, long complicated procedures were necessary to determine the levels of common toxins in biological material. One of the most tedious was the determination of the element fluorine in forage or grass.

I developed a modified method which cut the time down to about 1/2 and did not sacrifice accuracy, so my section ran a series of critical tests for counsel in a case involving an aluminum manufacturing plant and an abutting pastureland. The hydrogen fluoride fumes from the plant drifted onto the pasture; the farmer’s cows ate the grass; the level of fluoride was toxic; the cows died; and the farmer sued the aluminum manufacturer. Because of diversity, the matter was heard in Federal District Court. Because of some political pressure, the matter was expedited with an advanced trial date. Typically, only department heads, or full professors would testify in civil trials. As luck would have it, the department head had been on sabbatical in India and contracted dysentery and was unable to testify. I drew the short straw and had to appear to document the testing and verify the accuracy and precision of the testing methods. Defense counsel took a big risk of using a young, inexperienced lab rat who knew the subject matter instead of  an older, experienced professor who had no hands on experience in either the actual testing or methodology. I survived the ordeal and within a couple of years was on the stand a couple of times a month in civil and criminal cases.

Many years ago, I had a case in a rural Mono County where the plaintiff’s attorney also had to make a hard decision.  This case had everything; a sympathetic plaintiff, good damages, negligence per se based on a building code violation; and actual notice based on the testimony of an eye witness who told the defendant of the acute slipping hazard hours before the plaintiff’s fall.  Unfortunately, this witness also testified that the plaintiff ’s conduct was substantial factor in the causation  of her fall because she was walking “too fast.”  There was a substantial defect in the construction of the handrails of the subject stairway; the property manager had not removed an accumulation of ice and snow from the common areas of the building; the plaintiff was a guest of a weekend renter of the condominium unit.

The only testimony of the plaintiff’s walking speed was the eye witness.  The defendant admitted that he knew the stairway and landing would be slippery when covered with ice or snow.  The question for the attorney was whether to call the eye witness to establish actual notice or to rely on the owner’s knowledge of the potential hazard and lack of inspection and removal.  These were the days when assumption of the risk and contributory negligence were viable defenses before they were merged into comparative fault.  The plaintiff called the eyewitness; the jury found for the defendant who argued that the plaintiff knew of the slipping hazard and did not take appropriate precautions for her own safety.

www ????????? ru

Comments

You must be logged in to post a comment.