Moses Lake attorney participates in precedent-setting case

MOSES LAKE - A Moses Lake attorney helped set a legal precedent, requiring engineering firms to analyze the effects of their suggestions.

George Ahrend was one of the attorneys involved in a Washington State Supreme Court decision holding the engineering firm CH2M Hill liable for changes made to the wastewater treatment plant at Riverside State Park in Spokane.

The firm recommended a change to how sludge was transferred between digesters at the wastewater treatment plant. Ahrend explained the digesters are 35-foot tall domes used to help remove solids from the wastewater.

"They have bacteria that they foster the growth of in there to facilitate the transformation," he said. "They were having trouble keeping them hot. They called them, 'sick digesters' because they wouldn't properly transform this material into something that could be discharged into the river."

The workers at the plant were to circulate hot sludge to fix the problem, Ahrend said, describing it as similar to clay. Without knowing it, they kept pumping more and more sludge into one of the digesters. The pressure lifted the top of the dome off.

"At this point, Dan Evans and this guy, Mike Cmos, were on top. It basically lifted them up and the pressure on the dome, just from being lifted, cracked it, and parts of it sank and parts of it spilled off the side," he said. "Mike Cmos was on a part that sank. He actually drowned in the sludge."

Evans, Ahrend's client, was thrown 35 feet to the ground, suffering multiple broken bones and taking in some of the sludge.

Ahrend and attorney Garth Dano became involved with the case shortly after the 2004 incident. Dano was coaching Evan's son on the Big Bend Community College baseball team.

"We referred him to a lawyer in Spokane named Rich Robinson, who was trial counsel for Dan Evans. We stayed on board with the idea that it was going to get appealed," he said. "We knew it was going to be appealed, and I do a lot of appeal work, so once they finished the trial and got their result, predictably the engineering firm appealed ... I just did the appeal."

One of the reasons they chose Robinson was because he was a former construction lawyer, who used to defend contractors and engineering firms in Seattle, Ahrend said.

"Bill (Gilbert), Garth and I had all worked with him before and we knew that his expertise in the field would allow him to do a better job for Dan," he said.

The plaintiffs won a $6.5 million decision after a three week trial. With the trial court deciding, the engineering firm should have informed the people working at the plant about how the changes would affect the transfer of sludge between the digesters.

"You may think this is strange, and it was strange to me at the time, that until this case there was no Washington, what we call published decision, precedental [sic] decision saying that engineers have a duty to not be negligent," he said.

The engineering firm argued they weren't responsible if their designs injured someone.

Ahrend called the argument astonishing, but the issue wasn't ever decided in Washington courts.

"There were a few cases out there that it was sort of implicit, but never explicit," he said. "All of the cases that were out there involved an engineer who breached a contract. If you violate a contract and that causes some damages, you're liable for breach of contract."

A brief filed by the Washington State Association for Justice also stated there weren't any cases establishing the precedent.

Attorneys for the engineering firm argued the city rejected an engineer's suggestion to install a valve, instead choosing to install a "skillet," according to court records. The trial court determined the skillet is similar to a valve.

The court rejected the idea the firm needed a contract to be responsible for informing the employees about the changes.

The second argument revolved around a state law exempting designers from lawsuits. The firm argued unless a contract made them responsible for the work site, they weren't responsible.

The firm argued it was simply consulting, it wasn't preparing any design plans, Ahrend said.

"That was a little perverse too. The idea being, if you didn't write it down you could avoid liability, but if you did write it down you would be liable," he said.

The supreme court was split on this point, with the majority siding with the employees.

The final argument was the engineering firm was not legally responsible for the collapse, stating failing to give a written analysis of the effects didn't cause the dome to collapse, according to court records.

The justices sided with the employees on the final argument.

The technical aspects of the case made it difficult, Ahrend said; adding the timeline made the case strong.

"The intuitive part to us was five days after they changed the routing is when the collapse occurred," he said.

Ahrend pointed out he normally is one of two attorneys filing friend of the court briefs for the Washington State Association of Justice. He had to recuse himself in his case.

"We probably get involved in about 10 to 15 cases a year that are in the Washington Supreme Court," he said.

Ahrend said whatever it is like for the lawyers involved, it's nothing like what it is for the clients. Evans still suffers from his injuries, Ahrend pointed out a 35-foot fall is going to cause lifelong injuries.

"He suffered from that, but then just the process of this, the waiting, being under the spotlight, having people who are motivated either to prove that you're lying or that you're not really hurt, being paid hundreds of dollars an hour and being paid to do it for lots of hours to go through his medical records, to go through his work history, to be under the microscope like that, is no fun," he said.

In addition to the injuries and the process, Evans knew what CH2M Hill's role was at the facility and how much they were paid, he said.

"For them to say, not our fault. His bosses told him to go up there on top of the digester to see if he could find what's going wrong because they knew something was up," Ahrend said. "What's he going to do? He can't very well say, 'No.' Then to have it explode like that and to be hurt and the people who are responsible denying it. That's tough to take."

For the attorneys involved, including Ahrend, they get to know and like their clients and want the best for them.

"It's weird to be tooting our own horn, but on the appellate work that's one of the things that I do, in particular," he said. "I started out as an appellate public defender for the Washington State Office of Public Defense back in the 1990s and I've been doing appeal work ever since then."

The appeal is less adversarial than the trial portion of the case, Ahrend said; adding it's more of a scholarly exercise to try and decide what the law is or what the law should be.

"For me, that's what I went to law school for, is to do that," he said. "It takes a long time, Dan was hurt in 2004 and we finally got a decision in 2011 and in the meantime, those of us who are representing what I would call regular folks. There is no secret about it. We work on a contingency fee, we're gambling ... our time over the past number of years that we won't see anything from it."

He pointed out it costs money to hire the experts and put on the case, and most of the time regular folks can't afford it.