Texas Lawyer: Slack Notes Unique Challenges in Recent Case

Mike Slack recently spoke to Texas Lawyer about his case, Lee Odekirk, et al. v. Dallas Airmotive Inc., et al.

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Grief Counseling: Stories of Loss Inform Recommendations for Allocating Funds
by John Council, Texas Lawyer (11-29-2010)

For the past three weeks, Al Ellis has traveled to three different states on a heartbreaking journey, meeting individually with 40 plaintiffs who either survived or lost family members in a 2008 airplane crash in Guatemala that killed 11 people.

As a court-appointed “facilitator,” Ellis has been assigned the unusual task of recommending to a state district judge what each of those claimants should receive from a limited pool of insurance money, tendered as part of a defendant’s proposed settlement in a mass tort suit.

Last month, 68th District Court Judge Martin Hoffman appointed Ellis, a veteran plaintiff attorney and of counsel at Dallas’ Sommerman & Quesada, to assess what all of the claimants should receive as part of a proposed settlement with one defendant in Lee Odekirk, et al. v. Dallas Airmotive Inc., et al. According to the Oct. 8 order, Aereo Ruta Maya (ARM) the Guatemalan company that operated the small airplane that crashed, has tendered the limits of its insurance policy to the plaintiffs.

Ellis’ appointment solves a problem for the lawyers who represent the plaintiffs in the case, says Mike Slack, a partner in Austin’s Slack Davis Sanger, who represents five of the plaintiff families in the case.

Normally, airlines carry a big enough insurance policy to cover the claims of plaintiffs in the event of a crash. But that’s not the case in Odekirk ,Slack says . He declines to discuss the amount of the policy, which is being withheld as part of an agreement between the parties in the case. “We knew after we got involved in this case, if there was a limited fund and a potential that the limited funds of the policy limits were not adequate to satisfy all of the claims and there would have to be some type of division or allocation of those claims . . . we could not be involved in that,” Slack says. “It’s a conflict of interest. We’d have a conflict taking sides between various claimants.”

So Slack requested that Hoffman appoint a facilitator to evaluate what each of the plaintiffs should receive.

“We looked around to see if anybody had tried this and couldn’t find any examples. So we just decided to innovate this,” Slack says of his request for a facilitator.

The parties did not recommend a facilitator but left that up to Hoffman, who chose Ellis for the task.

“He’s very experienced, he has knowledge of personal injury law, and he has the ability and temperament to build consensus. That’s what I was looking for,” Hoffman says of Ellis.

Life Stories

After his appointment, Ellis says he met with each of the claimants in hotel conference rooms and simply asked them about their lives.

Ellis asked one widower how he came to fall in love with his wife, who died on the plane. Ellis learned that the couple met at a party; although it was love at first sight, he forgot to get her telephone number, only to find her days later at a coffee shop, where she ran out to give it to him.

Ellis asked another woman about the relationship she had with her deceased father and found out they’d been estranged for years after her father and mother divorced. But the father and daughter had reconnected six months before the plane crash took his life, Ellis says.

“The thing I’ve emphasized to them is: I’m not deciding the value of their loved one. I’m deciding what’s fair compensation for each claim. And that’s entirely different,” Ellis says.

Ellis says all of the claimants have compelling stories of loss. They or their family members were on the flight to Guatemala, because they had all volunteered to help build a school in the country. Of the 14 people on that flight, three people survived, one of whom was severely burned, Ellis says.

Getting each of the claimants to talk about his or her relationship with the deceased is important in determining the value of each claim, especially when it comes to non-economic damages, such as loss of consortium, Ellis says.

“The reason it’s important is I’ve established a base of what I think the average wrongful death non-economic damages are,” says Ellis, who says he tried to view the plaintiffs’ stories exactly how a Dallas jury might view them.

“Does this story give their case more value than the base? Or does it go below it? One had a very estranged relationship with her father. And that relationship put it below the base. So that’s important,” says Ellis, who expects to make his recommendations to Hoffman by the end of the month.

While Slack did not attend any of the meetings between his clients and Ellis, Slack says he has received positive feedback from his clients about those meetings.

“All of our clients have felt they have had an opportunity to explain their losses. And they all realize that there is going to be a division of this money and they might not be happy with how much is allocated to them,” Slack says. “But Al has brought so much integrity and thoroughness to the process that it really has overshadowed any individual expression of concern that any of our clients have had.”

Greg Carboy, a shareholder in Dallas’ Cowles & Thompson who represents ARM in the litigation, calls the appointment of a facilitator an innovative approach that solves conflicts on the plaintiffs’ side of the case.

He also hopes that Ellis’ recommendations will bring more validity to a final settlement and judgment for his clients in the case. Alan Mortensen and Edward Havas, shareholders in Salt Lake City’s Dewsnup, King & Olson, who represent three families of plaintiffs in the case, did not return a call each for comment.

Linda Eads, a professor at Southern Methodist University’s Dedman School of Law who teaches professional responsibility, says the appointment of a facilitator to help determine how settlement is apportioned to claimants is a unique solution to a common problem in mass tort cases.

“This kind of stuff is being discussed right now, about how you handle settlements in mass torts or how you handle settlements with multiple plaintiffs. The American Law Institute did a study on this issue. For example, in class action settlements, all settlements go through the court. But mass torts are not class actions. It’s always been a problem about how the lawyers handle their individual duties,” Eads says.

“It’s a good attempt to try to figure this stuff out,” Eads says of the appointment of a facilitator in Odekirk . “I think this is wonderful, actually. Good for them.”

Ellis is authorized to be paid up to $300 per hour for his services — payment that will come out of the fees the plaintiff lawyers earn in the case, according to Hoffman’s order appointing him as a facilitator.

That will be money well spent, Slack says.

“It takes a very special person to start that conversation and explain to that person that is sitting across the table what his job is in a way that engenders confidence. The appointment was very important for us. We have a lot tied up in our relations with the clients. And the court has a lot at stake with the performance of the facilitator” in resolving the case, Slack says.

Ellis says he’s earning more that than just money in his role as a facilitator.

“It was a spiritual experience for me, because every single family involved here were just good people,” Ellis says. “It was emotional, and it was hard. But, on the other hand, it was an experience I wouldn’t trade for anything. It was worth it to me just to be touched by these people.”