Doug Wolfgang, one of the nation's top sprint car drivers, crashed during a practice session at Lakeside Speedway in Kansas City, Kansas on April 3, 1992. Wolfgang's alcohol-fueled sprint car inadvertently stick a tire located near the racing surface. He lost control of the car and it slammed into a retaining wall at a high rate of speed, causing a rupture in the fuel line. At impact, Wolfgang lost consciousness. While he lay motionless and helpless in his race car, it became surrounded by a fuel-fed fire, necessitating an immediate and effective emergency fire-fighting and rescue response. The response was not forthcoming, however, and despite the valiant efforts of numerous bystanders, the fire was not suppressed for nearly 15 minutes, and eventually resulting in career-ending burn injuries to Wolfgang's legs and feet.

   In April of 1994, Vic Bergman filed suit in federal court on behalf of Mr. Wolfgang against the owners and operators of Lakeside- Speedway, as well as the World of Outlaws, Inc., the world leader in sprint car racing and fourth largest sanctioning body in auto racing. Plaintiff alleged defendants had assumed a nondelegable duty to Mr. Wolfgang to provide a sufficient number of adequately trained, clothed and equipped firefighters capable of effectively suppressing the type of fires associated with sprint car racing. The complaint also alleged defendants acted wantonly with reckless disregard toward the life, safety and health of Mr. Wolfgang by (I) delegating the duty to provide post-crash emergency fire-fighting to volunteer personnel without training, guidance or supervision; (2) relying upon volunteer, unsupervised personnel to gratuitously provide fire-fighting equipment; and (3) holding sprint car events at Lakeside Speedway without providing information to fire-fighting personnel about the peculiar risks and fire-fighting techniques associated with sprint car methanol fires.

   Prior to trial, based on the Release and Waiver of Liability Agreement signed by Wolfgang before participating in the practice session, all of the negligence claims were dismissed, leaving only the claims of wanton conduct. Thus, at trial, Wolfgang had the enhanced burden of proving that defendants were guilty of wanton conduct.

   Vic Bergman and Pat Hamilton tried the case for three weeks before the Honorable G. Thomas Van Bebber. The large ceremonial courtroom in the new Kansas City, Kansas Federal Courthouse was used in order to accommodate the sprint car that was plaintiff's principal exhibit. On August 25, l995, after l6 hours of deliberations over 3 days, an eight person jury awarded Wolfgang $ 1,215,000 in damages, finding the defendants acted wantonly in failing to provide adequate fire protection for the practice session. Sixty percent of the fault was assessed against local racetrack ownership and forty percent against World of Outlaws.

   The representation of Doug Wolfgang was one of the most worthwhile tasks our firm has ever undertaken. This was a case that is likely to have a salutary impact on all of automobile racing.

   The most surprising and important aspect of the case was the revelation that there are no federal, state or industry-wide rules or regulations which control or even provide guidance for the amount or type of fire protection or emergency rescue which should be present at motor racing events of any type. This lack of racing industry standards needs to be addressed.

   While many racetracks do an excellent job on their own, many neglect fire protection and rescue services and refuse to spend the necessary time and money to protect participants because they feel insulated from liability by the industry's Release and Waiver agreement. The problem is that as long as injured racing participants and their heirs are barred by releases from recovering for injuries or deaths no matter how easily preventable there is no incentive to adopt rules and regulations and spend the time and money to ensure that adequate fire protection and rescue personnel are available for racing events. In the litigation, we proved that adequate fire protection can be provided at almost any racing facility in the United States at a reasonable and feasible cost. We put together a group of four experts in racing safety and fire protection engineering to draft minimum guidelines for fire safety and emergency rescue services for sprint car races.

   The racing industry, which has demonstrated widespread disregard for the safety of race car drivers, has reacted with great indignation toward this case. Because the case received national media coverage in newspapers such as USA Today, was discussed on national television shows, and has received close coverage and analysis in the racing media and press, we believe the verdict will eventually lead to the creation of minimum standards for fire protection and rescue services for the betterment of motor racing.

   The day before Memorial Day, 1991 ,Greg Buje and his wife, Ramona, left home from Coffeyville, Kansas for Bartlesvi lie, Oklahoma, to place flowers on Ramona's father's grave. At about the same time, Mark McDaniel, his wife, Patricia, and their two children, John and Marcia, left home in Caney, Kansas, for an afternoon fishing trip.

   At the intersection of County Road 2300 and Highway 166 in Montgomery County, Kansas, Buie's 1991 Toyota pickup truck collided with McDaniel's 1980 GMC truck.

   Upon impact one of the GMC truck's "side-saddle" fuel tanks ruptured, resulting in an immediate explosion and fire that engulfed both vehicles. Ramona Buie and Patricia McDaniel burned to death; Greg Buie suffered horrible disabling burns over 70 percent of his body; Marcia McDaniel was seriously burned.

   The Buie and McDaniel families were victims of General Motors' conscious decision to favor sales over safety. General Motors knew at the inception of their design process (1970-1972) that the ~side-saddle" fuel tank mounted outside the frame rails created a greater risk of post-crash fuel-fed fires than the between-the-frame-rails tank system used in comparable Dodge and Ford trucks. However, the ~side-saddle" design allowed for a larger 40 gallon fuel capacity that the Marketing Department thought would sell more trucks. As a result, the 1973 through 1987 General Motors trucks utilized the hazardous outside the frame rail 'side-saddle" fuel tank design.

   Lynn Johnson and Pat Hamilton of our firm pursued wrongful death and personal injury claims against GM on behalf of the McDaniel and Buie families. Exhaustive discovery showed GM's actual knowledge of the excessive fire hazard at the time of the design.

   Crash tests performed before production started revealed the high probability of fuel leakage and post-collision fires. A series of 50 mph vehicle-to-vehicle side-impact tests performed later by GM all clearly demonstrated the vulnerability of the "side-saddle" fuel tank design, even when a variety of safety features were added in an effort to improve post-crash fuel system integrity. GM ultimately incorporated three of these safety enhancements into the design of the fuel system, beginning with model year 1984, but did not conduct a recall to add them to earlier models.

          
   To date, despite overwhelming evidence of the defective and unreasonably dangerous design of the "side-saddle" fuel tank system, GM refuses to recall the 4.3 million 1973 through 1987 trucks still on the road. As a result, if past trends continue, the increased risk of fire in side impact crashes involving the GM trucks will result in approximately 32 additional and unnecessary burn fatalities and numerous other burn injuries over the next 10-15 years.

   One month prior to trial, General Motors settled all of the McDaniel and Buie cases. Although the terms of the settlement are confidential, it fully compensated the Bitie and McDaniel families for their damages. Unfortunately, we know that it is only a matter of time before other families suffer similar tragedies in their 1973-87 GM trucks. Our firm is currently handling other postcollision fuel fed fire and crashworthiness cases.

• Sales Over Safety: GM Places Public at Risk
  
• Environmental Plaintiffs Triumph in Joplin-Area TCE Case
  
• Defending Writs of Prohibition in Missouri
  

   In the Spring of 1991, the residents of the Village of Silver Creek, just south of Joplin, Missouri, were visited by an environmental nightmare. Routine testing conducted by the Missouri Department of Health documented the presence of an industrial chemical solvent, trichlorethylene (TCE) in the well water of several residences.

   Silver Creek is located immediately south of FAG Bearings Corporation, an industrial facility that used substantial quantities of TCE in its manufacturing process from 1972 through 1981.

   The Village of Silver Creek, and the Village of Saginaw, located to the south of Silver Creek, were not on the city of Joplin water system. The residents of these suburban communities depended on their individual wells for their entire water supply.

   Many area residents moved to Silver Creek and Saginaw Villages because of the spacious lots, nice homes, and semi-rural character of the area. Others moved there specifically because they liked having their own well as a source of water rather than being dependent upon the city water supply. Several years before the discovery of the TCE contamination, the residents of Silver Creek rejected an effort to connect the village to the Joplin water supply.

   Predictably, the news of TCE contamination of the water supply created tremendous anxiety for the village residents, with questions about the safety of the water supply and potential health effects. Once contamination of TCE was confirmed, an alternative water supply had to be obtained for all of their drinking and cooking needs.

   Despite alternative drinking water supplies, the residents were still required to bathe or shower in TCE contaminated water.

   The Missouri Department of Health, after discovering the TCE contamination, notified the Missouri Department of Natural Resources (MDNR) of the problem. In turn, the MDNR brought in the Environmental Protection Agency (EPA), which conducted extensive testing of the residents' wells within the Villages of Silver Creek and Saginaw.

   Ultimately, dozens of wells were found to be contaminated with TCE, as well as its breakdown products.

   As word of the TCE contamination within the villages became widespread, the residents found themselves living a nightmare. Meetings were held with representatives of the Missouri Department of Natural Resources and the Environmental Protection Agency.

   Mixed messages were delivered. Residents were told to discontinue drinking the water, but were not immediately provided with an alternative water source. Bottled water was eventually provided by- the EPA, but only to those residents who had high level contamination.

   Village residents banded together to form a citizen's committee and were successful in pressuring the EPA to provide water to all residents with any contamination, and also got local businesses to donate bottled water to the residents who wanted it.

   Ultimately, a permanent alternative water source was arranged when the board of Silver Creek Village contracted with the Missouri American Water Company to hook into the Joplin water system. The individual residents of Silver Creek Village were assessed the costs of installing that water system.

   A lawsuit was filed on behalf of residents of Silver Creek Village and Saginaw Village seeking damages against FAG Bearings Corporation identified by the MDNR as the source of the TCE.

   John Parisi of our firm spearheaded the case efforts on behalf of our clients, and helped argue the case in federal court. Given the size and complexity of the case, the law firms of Shamberg, Johnson & Bergman Payne & Jones and Humphrey, Ferrington & McClain,joined LIS to represent additional plaintiffs.

   Claims were brought under the Comprehensive Environmental Response Compensation and Liability Act, CERCLA, the Resource Conservation and Recovery Act, RCRA, as well as state law claims for nuisance, trespass, strict liability, negligence, medical monitoring, fear of cancer, and increased risk of cancer.

   No claims for personal injury were brought on behalf of our clients in this lawsuit, and all these claims were specifically reserved in the eventual settlement reached with defendants.

   Initially, a class action was filed in the United States District Court for the Western District of Missouri, but it was not certified by the federal district court. We then filed a consolidated action for individual claimants represented by the three law firms in Missouri state court, in Neosho, Missouri. Litigation was actively conducted in both state and federal court for over two and one half years resulting in a settlement in the amount of $4,000,000 between FAG Bearings Corporation and the 68 plaintiffs. Settlement included payment for the diminished value of the plaintiffs' property, as well as for nuisance (the loss of use of enjoyment of property as a result of the TCE contamination). The settlement also provides for repayment of the cost of the water system put in by the Village of Silver Creek, as well as payment to the Missouri Department of Natural Resources for the water system installed in Saginaw Village.

   The settlement of these damage claims does not affect the ongoing Remedial Investigation Feasibility Study being conducted by the MDNR to determine how to best clean up the ground water contamination.

   Prohibition is the extraordinary remedy reserved to prevent any state court from exceeding its jurisdiction. It is a discretionary writ issued (1) in extreme cases, and (2) only when there is no adequate remedy at law. Nevertheless, litigants sometimes seek a writ when preliminary jurisdictional or discovery issues are decided against them. Writs can be effectively defended by filing written suggestions under Rule 84.24(c).

   There are three ways to attack a petition for a writ of prohibition: (1) institute a procedural challenge; (2) controvert the element of extreme need; or (3) show that the petitioner has an adequate remedy at law.

Procedural Challenges
   Rule 97.03 requires petitions in Prohibition to contain three discrete sections: (1) a st Jement of facts, (2) a statement of the relief sought; and (3) a statement of the reasons the writ should issue. The rule also provides that a copy of any order, opinion, record, or part thereof must be included with the petition, and the petition 'shall be accompanied by suggestions in support thereof." When a litigant fails to comply strictly with Rule 97.03, a procedural challenge may convince the court to deny the writ on prudential grounds.

   Rule 84.22 provides that appellate courts may not issue original or remedial writs if a lower court can afford the same relief. For example, the Supreme Court routinely rejects writs that could have been filed in the Court of Appeals if no application has been made there. However, the Court has construed this rule as procedural, and in an extreme case, will grant relief. State ex rel. Lafayette County Comm'n v. Ravenhill, 776 S.W.2d 17 (Mo. banc 1989).

The Element of Extreme Need
   Writs of prohibition are discretionary with the court. Therefore, the first line of defense is to suggest that the subject is not proper for a writ of prohibition. "Prohibition is not a remedy for all difficulties."State ex rel. Jim Walter Plastics v. Sihnhold, 629 S.W.2d 668, 669 (Mo. Ct. App. 1982). It is not a substitute for appeal and matters that are properly resolved in the normal course of litigation cannot be addressed through an extraordinary writ. Id. Likewise if the question presented in the writ goes to the merits of the case, the court will normally deny the writ. Id.

Adequacy of Remedy
   If an adequate remedy exists at law, courts deny prohibition. Therefore, a Writ of Prohibition will not lie where a trial court overrules a motion for summary judgment, since this is normally appealable. An exception exists to forestall useless or unwarranted litigation, State ex rel. O'Blennis V. Adolf 691 S.W.2d 498 (Mo. Ct. App. 1985). To prevail in this situation, however, the litigant must have facts that are extreme. In 0 'Blennis , the court exercised its discretion because a federal court had already decided the issues in the case, and the claim was clearly barred under res judicata.

   Appellate courts normally refuse to interfere in discretionary matters. State ex rel. Norfolk & Western Ry. Co. v. Dowd, 448 S.W.2d 1 (Mo. banc 1969). But, an exception exists protecting disclosure of privileged information, State ex rel. Polytech v. Voorhees, 895S.W.2d 13(Mo.banc. 1995).

   Appellate courts are not eager to add extraordinary writs to their dockets, so it takes a showing of extreme need and important questions of law to prevail in a Writ of Prohibition. Suggestions that attack the element of extreme need and the adequacy of any legal remedy are the most effective in defeating these petitions.