Your Courts, Their Secrets
Widow battles to unseal secrets over blast that killed her husband
Seattle Times staff reporter
MOSES LAKE — Deme Garibay went to work one night eight years ago and never came home again.
He was killed by a chemical-plant explosion triggered by a defective pipe that was supposed to be inspected but never was.
He left behind an infant daughter and a young widow with a deep sense of injustice and a lot of questions.
Julie Garibay sued Advanced Silicon Materials not just for money, but for answers.
While the families of others injured or killed in the accident entered into secret settlements, and were paid undisclosed amounts, Garibay refused any deal that required secrecy. She wanted people to know the whole story of why her husband died.
"These men and women go out there to work for their families and no one tells them it's not safe," she explained. "It was supposed to be safe. They said it was safe. But it wasn't, and I want people to know."
While the others agreed to keep Advanced Silicon's investigation into the accident secret, Garibay and a mom-and-pop Snoqualmie law firm have fought to make it public.
Julie Garibay's struggle to open a single court document in Grant County epitomizes how secrecy has taken over lawsuits filed in public courthouses.
In King County, a Seattle Times investigation revealed that at least 420 civil suits have been sealed in their entirety since 1990, the files hidden away at the behest of large businesses or at the request of lawyers, doctors, hospitals or public agencies accused of negligence or worse.
Many more lawsuits are sealed in part — like the Advanced Silicon case in Grant County.
Often the most crucial records get concealed, many times improperly, stamped "For Attorneys' Eyes Only" under a protective order, or labeled "Sealed" under an order that distinguishes which parts of a file the public can see and which parts it can't.
And often, the people reduced to silence are the ones who most want the public to know what a lawsuit reveals — the ones who filed the lawsuit, the ones who were hurt.
The lawyers defending the companies say this: Keep quiet, and we'll settle. You'll get the money you need for those medical bills and your family, and you can move on. Refuse, and brace yourself for years in court and an uncertain outcome.
Knowing all this, Julie Garibay still took her chances.
A weakened elbow joint releases a toxic cloud
There were four men working the graveyard shift at Advanced Silicon Materials the night of Oct. 8, 1998: Roy Long, the 55-year-old veteran who had worked there for six years, and Jeremy Lohr, 24; Rick Rios, 29; and Demetrio "Deme" Garibay, 26, all of whom had worked at Advanced Silicon for about a year.
It was a Thursday night, the final 10-hour shift of the week, and the four were planning a weekend scouting trip for an upcoming deer hunt.
Rios was ribbing Garibay about it: It would be the first hunt for Deme [DEH-mee] and he was stressed that his wife — an animal lover — might kill him if he shot a deer.
The men were working outside on an eight-story, refinerylike structure where sandlike material was heated to 1,000 degrees, the first step in making silane gas, needed to create computer chips.
It was cool and misty as Garibay and Rios used a high-pressure nitrogen hose to clear a plugged line. Both were covered in grime when they finished.
Long and Lohr, meantime, performed routine maintenance above on the fifth-story gangway that wound through the tower's forest of pipes and reactors. Garibay and Rios climbed the metal stairway to join them.
Snaking through the tower was a 6-inch carbon-steel pipe, Pipe 2142, that carried a high-pressure blend of silicon tetrachloride, hydrogen and trichlorosilane at nearly 400 degrees.
All of these chemicals are dangerous, but the silicon compounds are particularly toxic, reacting violently with air and moisture to form an acid that attacks metal, lungs, skin and eyes with equal ferocity.
Unknown to Garibay and his co-workers, Pipe 2142 carried something else: an unintended stream of microscopic grit. Over the past 12 years, this streaming grit had worn the bend in an elbow joint paper-thin.
Rios was standing about 30 feet from Pipe 2142 when it burst. In seconds, more than 18 tons of those chemicals were released, exploding in the moist night air into a massive acid vapor cloud that would scour paint off cars nearly two miles away.
"It was like somebody fired a rifle right next to my head," Rios said. "I turned and saw a long blue flame and heard a roaring, like one of those superjets, and then I was in a cloud, a really warm, musty, thick cloud.
"Right away, you could feel it on your skin, like heat."
All four men ran pell-mell for the single column of stairs leading off the tower. Already they were choking as the acid burned their lungs, throats and eyes.
Rios passed Lohr, who was tearing a useless respirator off his face. The men tripped over one another as they stumbled through the blinding cloud.
Rios ran into Long, who was hung up on the railing by his belt. "I pulled him off and started moving again," he said. At the bottom of the stairs, Rios saw Garibay, missing his hardhat, kneeling.
Another worker loaded Garibay onto a cart and rolled him to a nearby maintenance building, where chaotic first-aid and decontamination efforts took place.
Garibay was on all fours near some showers, Rios said. "Deme was moaning. I yelled to him, 'Just don't fall asleep!' "
Julie and Deme
Finding a job, starting a family
Demetrio Robert Garibay was a dark-haired bull of a man, seemingly as wide as he was tall. Huge shoulders and arms helped make him a skilled baseball player who could pound it out of the park with ease. His prowess earned him a tryout with the New York Mets right out of Moses Lake High School.
"The girls were just stupid over him," Julie Garibay said. "It was ridiculous."
They met when she was 15 and Deme a year older. She graduated from high school in 1992, and they married four years later. Deme — who had worked odd jobs as a mechanic — began looking for a job that could support a family.
Good jobs were scarce in Moses Lake, especially for someone without a college degree. The exception, Julie Garibay said, was Advanced Silicon. A processor could earn $50,000 or more with overtime.
Deme was hired in spring 1997, and trained on the job. He and Julie began talking about starting a family. They bought a house near Julie's twin sister, Stacy Orozco, whose husband David, Deme's best friend since grade school, also worked at Advanced Silicon.
Your Courts, Their Secrets
These sealed records hold secrets of potential dangers in our medicine cabinets; of molesters in our day-care centers, schools and churches; of unethical lawyers, negligent doctors, dangerous dentists; of missteps by local and state agencies; of misconduct by publicly traded companies.
The Times is going to court to open up these files.
The Garibays soon assembled a menagerie of pets: three dogs, cats, chickens, goats and horses. What Deme Garibay wanted most in the world, however, was children.
When Julie became pregnant in the winter of 1997, Deme was ecstatic. Rylee Nicole Garibay was born Aug. 9, 1998.
Julie remembered waking one night to flashes in their bedroom. She found Deme standing over the crib with a camera, snapping photos of Rylee sleeping in the dark.
Weeks spent hoping and slowly dying
Deme Garibay survived 38 days after the accident, most of them in a drug-induced coma. His lungs were so badly damaged that any movement exhausted him. His eyes were burned beyond hope.
Julie couldn't bear to see him in such a state. For weeks, she wouldn't go into his room at Harborview Medical Center, where he was flown after the accident. Later, she would have her father lead her into Deme's hospital room with her eyes squeezed shut. There, she would sit and hold his hand, listening to the beeping monitors.
Sometimes, she would bring 3-month-old Rylee into the room and hold her on Deme's chest. "I could hear his pulse slow," she said. "It would calm him."
Doctors worked desperately to stabilize Garibay for a lung transplant. Outside the intensive-care unit, as many as 50 friends and family held vigil.
Rios was released after two weeks, his lungs scarred and his vision blurred. Lohr was released, although he, too, was a candidate for a lung transplant.
Roy Long died near the end of October 1998.
Three weeks later, on Nov. 15, Deme died, his lungs and kidneys overwhelmed by fluid buildup from the burns.
Julie went home to Moses Lake and moved in with her parents. She never returned to the home she and Deme bought just the year before.
The accident report
In bid to seal findings, firm said trade secrets were at stake
Advanced Silicon responded to the accident by forming an in-house investigation team to dig into all aspects of the Moses Lake plant, from its management to safety practices. A year later, the team delivered a detailed report.
The state Department of Labor and Industries, responsible for worker safety, also sent investigators to the plant. The state released a report that focused on six safety violations, and fined Advanced Silicon nearly $35,000.
The company has kept its accident report secret.
When Jeremy Lohr, Rick Rios and the widow of Roy Long sued the company in federal court, Advanced Silicon at first refused to turn over its report as part of discovery, claiming the document was protected by lawyer-client privilege.
When a judge rejected that argument, the company stamped the document "confidential," said it contained trade secrets, and obtained an order sealing the document.
The company's fears about releasing the report were not just based on protecting trade secrets. The report contained "several extremely self-critical statements that could very easily be taken out of context and given 'sound bite' treatment," Advanced Silicon's former president, Michael Kerschen, would later state in a sworn declaration filed in Grant County Superior Court.
If made public, those statements "could easily be portrayed as demonstrating that [the company] fails to put a proper focus on, or devote sufficient resources to mechanical integrity and reliability" and drive customers away, Kerschen added.
The company settled with the three plaintiffs in 2002 for undisclosed sums of money and promises they would never discuss the details of the settlement. By then, Julie Garibay had sued for wrongful death and been offered "six figures" to settle the case, said her lawyer, Jerry Pearson. A lawyer for the company, Stephen Kennedy, insisted that the figure was higher.
But Garibay and her lawyer didn't take Advanced Silicon's offer because any deal required keeping everything secret. She believes the people who work at the plant — and its neighbors in Moses Lake — deserve to know how the accident could happen.
The judge in the wrongful-death case, Grant County Superior Court Judge Evan Sperline, ruled that the report could be kept secret.
But last October, he decided to revisit his ruling after the state Supreme Court determined that all documents filed in connection with a lawsuit should be presumed public unless several strict criteria can be met.
Sperline invited Garibay's lawyers to renew their motion to unseal the report and reconsidered a request by The Seattle Times to view it. Sperline since has said he's inclined to release a version of the report with portions containing trade secrets blacked out, but he hasn't issued a final order.
Even if he does, Advanced Silicon will almost certainly appeal, said Kennedy, the Seattle lawyer who represents the company. The report would remain sealed while under appeal.
Kennedy has argued that corporate secrecy actually protects the public.
Otherwise "companies will be less aggressive and less self-critical if they believe that the results of their investigation will later be widely disseminated," Kennedy wrote.
The report may never become public. But at a minimum, it contains findings that are sketched out in other court filings and state records: The plant's original design was flawed, management was inattentive and the company had not complied with several key state and federal safety standards for hazardous chemicals.
Perhaps most telling, the plant had just begun inspecting its miles of pipes a week before the accident that killed Deme Garibay — even though the inspections had been required by law for six years. A consultant hired by the company warned it in 1995 that it was far out of compliance with those basic standards.
In its most serious finding, the state said the company had acted in "poor faith" by failing to adequately follow up on the consultant's recommendations.
The state also said Advanced Silicon should have known that fine particles and liquids were ravaging the pipe, particularly since contaminant grit had previously been found downstream from the elbow in Pipe 2142. The grit eventually eroded the elbow to the thickness of four sheets of paper.
"Knowing how a pipe's contents affect the pipe is a basic fundamental requirement," investigators wrote.
Attorney's attachment to case runs deep
All along, Julie Garibay has wanted Advanced Silicon held publicly responsible.
Rather than joining the other survivors in their lawsuit, she sued separately, using Snoqualmie lawyer Pearson. He took the case on contingency, meaning he would get paid only if he won or settled the case. The strength of that relationship has surprised both of them and carried the litigation through three lawsuits and nearly eight years.
Deme Garibay's death struck the 59-year-old Pearson at a level that was so visceral he didn't understand it for years. Partly, he said, it sprang from his experiences as a twice-wounded combat Marine in Vietnam.
"There are a couple of things you just don't do in my ... world. One is you don't leave people behind. That's from Vietnam. The other is about not valuing people's lives, not valuing their sacrifices."
Garibay's case became a crusade that he says has cost his firm nearly $260,000 in time and expenses. He may never see a dime.
Pearson initially sued the state in Grant County Superior Court. That action alleged the Department of Labor and Industries was liable because it had failed to inspect the Advanced Silicon plant to ensure it was in compliance with safety standards. The state argued that although it had the power to inspect, it wasn't required to, and that it had no obligation to ensure that Advanced Silicon was following safety laws.
That lawsuit was dismissed before trial, and the dismissal upheld on appeal.
Pearson then sued Komatsu, the giant Japanese conglomerate that owns Advanced Silicon, in federal court, alleging it was responsible for what had happened at its subsidiary. Again, the lawsuit was thrown out before trial, with a judge finding that Komatsu officials could not be held responsible for the Moses Lake operation.
The 9th Circuit Court of Appeals has declined to hear an appeal.
The third lawsuit was filed against Advanced Silicon in Grant County Superior Court., alleging wrongful death.
But Garibay and Pearson faced an almost insurmountable legal standard contained in the state's Workers' Compensation laws. Companies pay into the workers'-comp fund — which is available to any worker hurt on the job — in exchange for near immunity from lawsuits.
In order to win a lawsuit against a participating employer for an on-the-job injury, the Washington Supreme Court has ruled, the employer had to have "actual knowledge that an injury was certain to occur and willfully disregard that knowledge."
Based on that language, Advanced Silicon argued that the company had to know it would kill Deme Garibay in order for his wife to prevail.
Sperline, while chafing at the restrictive statute, eventually granted Advanced Silicon's motion to dismiss the lawsuit last year.
So Julie Garibay, who took her chances turning down a private deal, came up empty, again.
"Money wouldn't change anything," she now says. "I look at my daughter and ask myself, 'When she grows up, what am I going to tell her? That I took the deal?' I don't think so."
More violations as widow tries to move on
The plant in Moses Lake has continued to struggle with safety and compliance.
Three years after the accident, the state fined Advanced Silicon $2,250 for what it termed "serious" safety violations.
Then in June 2003, a farmer working in his fields near the Moses Lake plant saw a large plume rise from the facility. The man, Don Korinen, rushed into his house, returned with his video camera and captured images of the vapor cloud. He gave the video to the state Department of Ecology.
The plant had changed its name to Solar Grade Silicon after being bought out by a Norwegian company.
Investigators determined the company had significantly underreported the size of the toxic release, which was caused by a "catastrophic failure" of a valve. There were no injuries.
Two of Garibay's lawsuits are on appeal, the wrongful death case against Advanced Silicon and her case against the state for not enforcing inspections of the plant's pipes.
Pearson, her lawyer, admits that her prospects are bleak.
Julie Garibay and Rylee, now 7, live with Julie's twin sister, her husband, their two daughters and several pets in a big house near Moses Lake. Julie lives on what's left of Deme's life insurance, his Social Security and a modest death benefit from the state. She started dating an old friend of her husband's and is trying to get on with her life.
Every summer, she organizes the Deme Garibay Invitational softball tournament in Moses Lake.
And every year on Deme's birthday, Rylee writes a note to her dad on a balloon and lets it go at sunset.
Staff reporter Ken Armstrong contributed to this report. Mike Carter: 206-464-3706 or mcarter@seattletimes.
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