Stern’s Gamble on the Buffalo Creek Case

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Stern was fortunate enough to have one of his law clerks stumbled upon a case similar to them in which a refuse pile which blocked a stream gave way during the rainy season. Like Pittston, the coal company claimed this flood was an “act of God” and the court ended up denying their claim and held that custom and usage was no defense. The court ruled that such an event occurring was due to negligence displayed by the coal company which is basically what Pittston did when overlooking the dangers of Dam 3 before it gave way. It’s rare in a lawsuit for there to be a prior case exactly like the one being tried for, but the firm of Arnold & Porter were able to uncover one and that, in my opinion, is pure luck. Regardless of what happened, they could now at least recover for negligence in this case.

In addition to Stern’s gamble on piercing the corporate veil, he decided to try and sue for mental damages which had never been done in such a high-profile case. The attempt to file for damages that weren’t physically present was a challenge and hard to prove in addition to the fact that there wasn’t any psychological or medical term developed yet. When Stern proposed the idea, he didn’t even have a full understanding what the suffering was all about or how they would go about proving that most of the plaintiffs were suffering from it. All he knew was that their behaviors post-disaster was like those who survived the Holocaust and those who came out of the war. The basis for his claims were that some of the victims of the disaster were having feelings of survivors’ guilt. He took a calculate risk when he decided to file a complaint for these mental suffering claims using the term, “psychic impairment” and stated that each plaintiff (including children) could recover damages for this. Filing that complaint was a bold move on his part and he was in for a long fight if he was going to attempt to try to improve something that’s not seen to the human eye. Once again, he got lucky as he later called in psychological doctors to come in and assess all the plaintiffs. They ruled in his favor and concluded that all of them suffered from “psychic impairment” which later became known as Post Traumatic Stress Disorder (PTSD). Another lawyer might not have taken this big of a risk and filed a complaint for mental suffering upwards of $20 million to prove a point of damages beyond those of compensatory. It takes a great deal of confidence and intuition to plow ahead in a lawsuit like this one.

Thus, the gambling that took place at the beginning of the lawsuit set the tone for the two years ahead of them where both sides fought tooth and nail for what they believed was a fair settlement. If Stern hadn’t taken on the case give his career meaning, attempted to pierce the corporate veil, filed for mental suffering damages, stumbled upon a duplicate case of theirs, the settlement would not have ruled in favor of the plaintiffs and justice would truly not have been served. Pittston would have continued to recklessly build those dams and act in ways of disregard towards the people of the community and even their own workers that lived by the flawed dams. The risks taken on by Gerald Stern ultimately helped the greater good and enhanced the regulations set forth by the EPA and the coal companies in the future. Additionally, the survivors of the Buffalo Creek Disaster used their money to live an easier live, but they admit that despite all this, their minds will never fully be at ease, because “nothing but death can stop our minds from going back to that morning”.

Citations

Stern, G. M. (1977). The Buffalo Creek disaster: how the survivors of one of the worst disasters in coal-mining history brought suit against the coal company--and won. New York, NY: Vintage Books.