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March 14, 2000

Local Residents Won Case Of Trespass By A Chemical Through The Air

by Bill Patterson

The white horse that Sheriff Jack Tillman rode in this year's Mardi Gras parades is at the center of an environmental dispute. The horse, named Honey, belongs to Horace "Buddy" Long. In 1998, Long and his wife Margaret sued and won a judgment against Courtaulds Fibers, a rayon maker in north Mobile County. The Longs contended in their civil suit that carbon disulfide released by Courtaulds had killed six of their horses and sickened others, including Honey. A Mobile County jury awarded the Longs $1 million. After the trial, the Alabama Civil Trial Reporter summarized "Long v. Courtaulds Fibers, Inc.," stating the Longs and their Dead Lake Land Company sued over "Nuisance, Trespass and Negligence" by Courtaulds. The Civil Trial Reporter stated: "The Plaintiffs contended that they raised horses on the property and the chemicals caused respiratory ailments resulting in the deaths of some of the animals. They further contended that the chemical contamination caused them to lose the comfortable enjoyment of their property."

The chemical discharged by Courtaulds, now named Acordis, is carbon disulfide, a solvent listed by the EPA as a dangerous chemical known to harm the human nervous and reproductive systems. Last week The Harbinger spoke with the Longs about their lawsuit. The Longs, who have moved to Baldwin County, still own Dead Lake Marina and the KOA campground in Creola, about three miles from the rayon plant. Buddy Long said that Honey "stayed lifeless" as long as she lived near Courtaulds, but after the family moved themselves and their horses to Summerdale in Baldwin County, the horse has been "clearing up slowly but surely." Long said he believes their verdict was important: "We are the only people in Alabama who have won a case of trespass by a chemical through the air." He explained that other successful lawsuits alleging trespass by a pollutant involved liquids flowing on the ground or leaching through ground water.

Margaret Long told The Harbinger that she and her husband, while at a doctor's office recently, met one of the jurors from their trial. The encounter "made my day," Long said. The three struck up a conversation in which, Long claims, the juror told them the jury initially wanted to award the Longs $10 million in damages. But Long said the juror told them two jurors began to worry that such a big damage award would "completely shut down the plant." According to Long, the juror said the damages then fell, first to $6 million and ultimately to the $1 million verdict.

The juror also said that the jury was particularly impressed by two pieces of evidence offered by the Long's lawyers. The first was the testimony of an expert about an air pollution monitor the Alabama Department of Environmental Management (ADEM) had installed on the Long's property. This witness, an expert in air monitoring, convinced the jury that ADEM had failed to detect carbon disulfide on the Long's property because the agency had set up the monitor improperly. "ADEM had installed the monitor on top of a big post, twenty-five feet up in the air," Margaret Long said. The expert testified that ADEM should have tested the monitor at "horse level."

The Longs also said the juror told them that the jury was affected by tests done at Louisiana State University on another of the Long's horses, Whisper. The tests showed evidence of metabolites of carbon disulfide in the horse. Early one morning, when the air smelled bad, the couple rushed Whisper to Baton Rouge, arriving by 11:00 am. The horse was supposed to have biopsies taken at 12:30 or 1:00, but Long said veterinarians didn't do the surgery until three days later. The biopsies still found metabolites of carbon disulfide, a fact the juror said persuaded the jury.

Courtaulds, now Acordis, has appealed the jury's decision. A lawyer for Acordis told The Harbinger on March 8 that the case is on appeal to the Alabama Supreme Court and "all briefs have been filed." He said he expects a verdict any time and "hopes the trial court is reversed." The attorney said the basis for the appeal was that the Longs were unable to connect their complaint to any of the emissions from the plant. The attorney said the briefs for the appeal had been filed several months ago.

A Suit That Didn't Fit

The Longs' suit was not the only lawsuit filed by property owners against the rayon maker. Three Mobile County residents who live near the Acordis plant, Tim Ryals, Vernon Brackett and Janice Anderson, filed a class action lawsuit two years ago against the company. The three were the only members of the class in the suit. The case never went to trial, because the company and the three settled out of court at the end of 1999. Brackett told The Harbinger last week that "Our attorneys, for their own reasons, didn't want to continue." Ryals said that their lawyers told them their firm "would drop the case if we didn't settle."

Brackett said the basis of their lawsuit was that they "lost the complete use of their homes" and suffered "inconvenience to their guests." Their attorney argued that this damage came from the smell of carbon disulfide and from falling rayon. Brackett said Courtaulds was "arrogant" because the company "knew they were breaking the law" and had no intention of doing differently unless "made to by the state and federal government." He was particularly disturbed when he found out that the company used a charcoal filter process at its rayon plant in Germany, a process he said trapped most of the carbon disulfide before it was released into the air. But the company chose not to install the carbon filter technology in its plant in Mobile County.

Brackett said their lawsuit did some good because "it brought more attention to carbon disulfide." Though neither Brackett nor Ryals would reveal the amount of their settlement, Ryals said "something's better than nothing." He added he believes that Acordis settled because the company's owners "didn't want small litigation around." The attorney for the group, Charles Willoughby of the Mobile firm Cherry, Givens, Peters & Lockett, did not return phone calls to The Harbinger by press deadline.

Bad Decade for Rayon

The early 1990s were good years for Courtaulds Fibers, the British company that owned and operated the rayon plant in Axis. In 1991 the Mobile Area Chamber of Commerce named Courtaulds its "Manufacturer of the Year," honoring the company for moving its American corporate headquarters from New York City to Axis. That same year the Mobile County Industrial Development Board issued $125 million in tax-exempt bonds for the company to fund an expansion, granting the firm tens of millions of dollars in property-tax exemptions. Since those years, changes for the worse have hit the rayon maker. By mid-decade, world demand for rayon had fallen, and the company began a series of layoffs. In 1998 Akzo Nobel purchased Courtaulds. The combined fiber division of Akzo Nobel and Courtaulds was called Acordis, the name now used for the plant in Axis. Further change took place last January, when most of Acordis was sold to CVC Capital Partners. CVC owns 64 percent, Acordis' management, 15 percent, and the remaining 21 percent is held by Akzo Nobel.

The Harbinger