Emotional testimony at carbon monoxide trial

One of sixteen alleged victims of carbon monoxide poisoning broke down crying on the witness stand Monday as he described a deteriorated relationship with his wife and children following a 2005 incident at Wal-Mart Distribution Center 6097.

Toney Dye, a resident of Pineville, told jurors that since his exposure to high levels of carbon monoxide he’s suffered frequent headaches, unexplained fatigue and mood swings, among other maladies.

“Things have changed a whole lot,” he told the jury. “I can’t do with them [the children] like I used to be able to do. No, we can’t plan nothing. I never know when I’ll have to stay in the bed all day with my head covered up … My kids, I try to help them, but I can’t help them with homework and stuff anymore like I used to. I haven’t got the patience I had with them before.”

U.S. District Judge Amul Tharpar called a short recess in proceedings as Dye wept when talking about his relationship with his wife and how the two wanted to seek marital counseling for issues between them, but could not afford it.

The testimony was part of the complex legal battle between current and former employees of the corporate giant’s distribution center and Unarco Materials Handling, Inc., a contractor Wal-Mart hired in 2005 to install a new rack system in the center’s large industrial freezers.

According to plaintiff’s attorney Don Russo, the company used at least two large gas-powered generators inside the building during the job, from Nov. 29 to Dec. 12, 2005, causing dangerous amounts of carbon monoxide to build up. The plaintiff’s are alleging that daily exposure to higher than normal concentrations of the gas has caused each of them permanent brain damage and they are asking for millions is medical reimbursements, lost wages, compensation for pain and suffering and punitive damages.

Unarco subcontracted the job out to another company, Atlas Material Handling, Inc. that actually performed the labor. Before trial, Atlas settled out of court with some of the original plaintiffs and was terminated from the case. Unarco has filed a counterclaim against the company, however.
Defense attorneys for Unarco dispute the alleged victim’s claim by saying medical research shows that lasting damage from carbon monoxide only occurs if someone exposed loses consciousness. None of the plaintiff’s in the case has reported that happened.

Unarco attorneys have also argued that the plaintiff’s case rests mainly on medical experts bought and paid for by their attorneys, and who have possibly trumped up reports and examination results to fit carbon monoxide exposure claims.

Unarco attorney David C. Schwetschenau cross-examined Dye Monday and disputed some of his claims by producing employee performance reviews from before and after the incident that showed little measurable loss of productivity on the job. Dye remains a Wal-Mart employee and said he plans to stay with the company for the foreseeable future.

Schwetschenau also noted that Dye saw a doctor for symptoms, but was not diagnosed with carbon monoxide poisoning until he visited a physician hired by Russo’s firm two months after the incident.
Earlier in the day, Dr. Michelle Mattingly, a neurophysiologist testifying for the plaintiffs, told the jury about tests she administered to each of the alleged victims to see if they had suffered damage from carbon monoxide poisoning. In Dye’s particular case, Mattingly said he had problems with reaction time, verbal abstraction, divided attention, verbal fluency, depression and anxiety, problem solving and other difficulties.

“All of those things are found in the research to fit with carbon monoxide exposure,” she said. “It fit with many of these guys … when you put all of this together, if fits with all the signs of CO.”

Testimony continued Tuesday and today. The trial is expected to last four to six weeks. Plaintiffs involved in the case are: William Asher, of Rockhold; Joshua Mills, of Flatlick; Randall Sizemore, of Oneida; Shade Deaton, of Lost Creek; Toney Dye, of Pineville; Sammy Faris, of Corbin; Chris Caudill, of London; Charles Sanborn II, of Barbourville; Stephen Taylor, of Corbin; Donald Greg Wells, of London; Joshua Stacy, of Corbin; Jason Engle, of Gray; Timothy Marcum, of Keavy; David House; of London; Denver Pennington, of London; David Pennington, of London and Jamie Rhodes.