Survivors of the Oso landslide are expected to soon have their day in court, in what could be the largest tort claim in Washington state history.
Tim Ward is slowly healing from the Oso landslide that on March 22, 2014, killed his wife, Brandy, and four of the couple’s five German shorthaired pointers, and left him with a crushed pelvis, broken hip and other injuries.
He starts his mornings with a walk in the park with his surviving dog, Blue, who lost a leg in the slide. Now retired from his job with Boeing and on medical disability, he often heads over to an Arlington community center, where he volunteers to help the homeless and those struggling with drugs.
This week, jury selection is expected to begin in the civil trial over whether the state and a Skagit County-based timber company bear any liability for the landslide that killed 43 people, injured others and destroyed nearly 50 structures in the Steelhead Haven neighborhood.
“I am looking forward to having my day in court where we can get some more clarity and justice,” Ward said.
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Ward, 60, is one of the plaintiffs in the lawsuit filed by survivors and those who lost family or property. Their lawyers argue that logging on Grandy Lake Forest Associates land and construction of a cribwall and sediment on state land added to the risks posed by an already unstable slope, and that these landowners had a duty to warn their neighbors of those risks.
Grandy Lake and the state have repeatedly denied in court briefs that any of their actions increased landslide risks or aggravated the damage.
They have tried unsuccessfully to be removed from the lawsuit by arguing that the plaintiffs’ legal arguments lack merit. But in pretrial rulings, only Snohomish County managed to extricate itself from what could be the largest tort claim case in Washington state history, given the loss of life, injuries and property damage.
Plaintiffs’ attorneys say a finding of liability could potentially result in damages of more than $100 million.
The state would be responsible for paying the first $10 million, with insurers picking up the next $75 million, according to Peter Lavallee, a spokesman for the state Attorney General’s Office. The state then would be responsible for paying any damage award above $85 million.
The trial is expected to last up to three months.
Before the Saturday morning Oso slide, weeks of extremely heavy rain soaked a hillside known, for its past instability, as the Hazel landslide formation.
The massive slope failure unleashed an avalanche of mud and debris that pushed across the North Fork of the Stillaguamish River to envelopSteelhead Haven.
Within four months of the tragedy, the first plaintiffs had filed a complaint, and the case has unfolded over the past two years in pretrial legal sparring. These last few months have been tumultuous.
The plaintiffs’ attorneys discovered in August that defense-expert witnesses hired by the state had deleted emails among one another with the knowledge of a state attorney.
They accused the state Attorney General’s Office of fraud for failing to disclose the deletions, and asked King County Superior Court Judge Roger Rogoff to issue sanctions ranging from — at a minimum — instructing jurors to draw a “negative inference” from the email deletions to a worst-case punishment of entering a liability judgment against the state.
State attorneys have described the deletions as unfortunate but not a deliberate attempt at deception or fraud.
“These accusations are false. No attorney for the State ever directed the experts to delete emails, to reach a particular conclusion, or to change their opinions,” state attorneys wrote in a court brief.
Rogoff soon is expected to decide what — if any — sanctions should be meted out against the state for the email deletions.
A ruling against the state could stimulate interest in a settlement.
Yet three days of talks earlier this year failed to resolve the lawsuit, and both sides are now girding for a grueling and narrowly focused court marathon.
The cribwall question
In pretrial rulings, Rogoff knocked down most of the legal arguments that the plaintiffs initially sought to use in the trial to pin liability on defendants.
But the judge found the plaintiffs had submitted “sufficient evidence” to justify a jury trial on one legal argument: That defendants took actions on their land that they knew — or should have known — increased the landslide risks to Steelhead Haven, and then failed to warn their neighbors of that risk.
For Grandy, the plaintiffs argue that timber harvests increased the risks by increasing runoff and making the property more vulnerable to landslides.
For the state, they maintain that the construction of a wooden cribwall (a kind of wooden fence along the river) and sediment pond created new risks.
Both the cribwall and the pond were built to help keep a debris field from bleeding sediment into the river where salmon spawn. But the plaintiffs — and the expert witnesses they plan to call to testify — will argue that the damage to that community was exacerbated by the release of all those loose soils that were pushed by the slide across the river to Steelhead Haven.
Both Grandy and the state maintain that they did not take actions that increased the risks to neighbors, and have tried unsuccessfully to get the judge to reject the legal argument for liability that will be launched by plaintiffs attorneys during the trial.
And, in a court filing filed this month, Rene Tomisser, a senior counsel in the Attorney General’s Office, bluntly accused the judge of “legal error” and a “flawed analysis” that would result in a “useless trial.”
Tomisser even disputes one of the basic premises of the plaintiffs’ argument that the state actually owned most of the land where the cribwall and sediment ponds were constructed along the North Fork of the Stillaguamish.
To help make their case, the state paid a team of expert witnesses more than $3 million to prepare a report that will be presented to the jury. That report said an analysis “fully supports the opinion that the presence or absence of the 2006 debris field did not make a material difference” in the runout of the 2014 landslide.
But the plaintiffs say that, based on their review of emails that were not deleted, the experts’ opinions on the slide shifted over time. They contend that some of those early emails will help make the case that material lodged behind the cribwall formed the deadly leading edge of the slide.
Taking the pain public
The trial is expected to include long days of technical testimony from both defense and plaintiffs’ expert witnesses, who include civil engineers, hydrologists, geologists and others who can speak to the forces that unleashed the slide.
It also is expected to include many hours of harrowing testimony from survivors of the landslide, such as Ward. If Ward takes the witness stand, it will be a difficult public return to a time of horror.
Ward says he and his wife, Brandy, first mistook the roar of the approaching landslide for a Navy jet fighter. Then they thought it might be an earthquake, so the couple moved to a hallway.
Before he lost consciousness, Ward says he remembers his wife being within inches of his fingers.
“The last thing I recall is the sound of her calling my name,” he said