Judge postpones West explosion trial after ATF announcement
Staff photo— Rod Aydelotte, file
A judge on Friday agreed to a defense motion in the West Fertilizer Co. explosion case to move a trial date from July to January.
Posted: Friday, June 3, 2016 6:45 pm
By TOMMY WITHERSPOON twitherspoon@wacotrib.com
The judge presiding over the West explosion litigation granted a defense motion Friday to postpone the next trial on the heels of a Bureau of Alcohol, Tobacco, Firearms and Explosives announcement last month that the fire that preceded the explosion was a criminal act.
Over objections from plaintiffs’ attorneys, 170th State District Judge Jim Meyer agreed to postpone the latest trial setting from July 25 to early January.
Meyer denied a defense request to stay the proceedings for at least six months, which would have put all activity in the cases on hold, including the taking of depositions and other trial preparations.
Defense attorneys argued that the May 11 announcement by ATF agents that the cause of the April 17, 2013, fire that triggered the massive explosion that leveled much of West was “incendiary, a criminal act” could be a “game changer” for the civil litigation. The attorneys requested more time to continue working with the ATF and U.S. District Judge Walter S. Smith Jr. in an effort to gain access to more evidence in custody of the ATF.
Some of the defendants sued the ATF last year in an effort to see the results from the ATF’s $2 million investigation, thinking the findings could help them — or at least the jury — make decisions in the cases.
Canceled trials
Trial settings in October and January were canceled after the parties reached settlements and partial settlements with a portion of the more than 200 plaintiffs who filed suit after the catastrophic explosion that claimed 15 lives, injured more than 200 and decimated schools, an apartment complex, a nursing home and the city’s infrastructure.
The three-year investigation by the ATF and other agencies ruled out all accidental or natural causes for the fire at the West Fertilizer Co.
“The only hypothesis that could not be eliminated is incendiary,” said Robert Elder, special agent in charge of the Houston ATF office, at the May press conference in West.
Defense attorneys argued at Friday’s hearing that there are no guarantees that the ATF will ever conclude its investigation, adding that ATF officials have declined to say whether they have any suspects in the case.
Elder announced last month that the ATF is offering a $50,000 reward for information that leads to the arrest and conviction of a person or people who may have started the fire.
The fire at the fertilizer company detonated 30 tons of ammonium nitrate fertilizer that was piled high in a flammable wooden bin. The plant exploded with the force of 20,000 pounds of TNT, officials have said.
Plaintiffs’ attorney Steve Harrison argued against the trial delay Friday and said the cause of the fire is not that significant because the plaintiffs’ cases are based on product liability issues.
“The defense is going to see what the evidence is, but the case is not about what started this fire,” Harrison said. “The defense says the ammonium nitrate would not have exploded if there had not been a fire. Well, it also would not have exploded if it had been stored properly and if instructions had been given how to store it properly. It also would not have exploded had it not been sold.
“You can run that argument into the ground. The question is, was the product dangerous, who knew it was dangerous and what they did with that knowledge. That is what this case is going to be about.”
Defendants in the lawsuits include Adair Grain Co., the local owners of the plant that exploded; CF Industries; El Dorado Chemical Co.; Thermaclime Inc.; and International Chemical Co. The defendants either manufactured or sold fertilizer to West Fertilizer Co.
Peter Rusek, an attorney for CF Industries, told the judge that it is important for the defendants to see what evidence the ATF has because it would be important for the jury to review if agents discovered evidence of an accelerant or some explosive device that contributed to the fire.
Harrison, meanwhile, argued that there is no proof after three years that the ATF is in possession of any evidence that would qualify as what the defense attorneys described as a potential “game changer.”
Reduce complaining
“The judge moved the trial date back, I’m thinking, to remove any complaining that the defendants will not have time to see what the ATF has,” Harrison said after the hearing. “Whether anything comes from that or not is a huge question, but the court has essentially taken any whining about that out of this case.”
Those chosen as plaintiffs for the third trial group include Jaquelina Rivera and her family; Michelle Wells, who represents the estate of Joshua Zarecor, who was killed from injuries sustained while he was in a nearby apartment complex; Misty Lambert; Sonja and Lance Moorman; Irma Cruz; Emanuel Mitchel; and Scott and Mary Burgess and Tom Burgess.
Other plaintiffs include West Rest Haven, the nursing home destroyed in the blast; J&B Realty, owners of the apartment complex; and 10 insurance companies who have filed subrogation claims seeking to recoup funds they have paid out.