State’s experts destroyed Oso mudslide records, lawyers say

OSO — Lawyers for people harmed by the Oso mudslide on Tuesday accused scientists and engineers hired by the state of deliberately destroying records that could be used to raise questions about their expected testimony regarding the disaster’s cause.

The state’s experts have acknowledged that for nearly a year and a half they’ve routinely destroyed emails discussing their multi-disciplinary effort to determine whether human actions somehow contributed to the hill’s collapse in 2014.

State attorneys received subpoenas seeking the emails, but the plaintiffs’ attorneys were told they didn’t exist.

In recent weeks, however, the lawyers stumbled upon emails that one of the experts didn’t delete. In depositions earlier this month, the experts acknowledged they’d been destroying the records routinely as part of their strategy for reaching conclusions about the mudslide, which killed 43 people.

The Oso mudslide litigation is often described as the biggest wrongful death case in Washington’s history, Seattle attorneys Guy Michelson, Emily Harris, Corrie Yackulic, John Phillips and Loren Cochran said in court papers.

“It has now become apparent that this case will also be known as the biggest discovery fraud in the history of the state — a fraud orchestrated by the state’s own Attorney General,” the lawyers wrote.

Attorney General Bob Ferguson’s office wasn’t ready to respond to the allegations on Tuesday afternoon.

“The Attorney General’s Office received the plaintiffs’ 30-page motion a few hours ago,” spokesman Peter Lavallee said. “Our legal team will review the filing and respond soon to the court. Our response will be made public at that time.”

The plaintiffs have asked King County Superior Court Judge Roger Rogoff to sanction the state, including a ruling that would decide the case in their favor without trial, which is now scheduled to begin this fall.

The trial had been set for this summer, but was rescheduled to allow more time to consider what the state experts found after they conducted drilling and other analysis over the past year.

The experts’ work reportedly challenged some widely held theories about the geologic makeup of the hillside and the allegation that logging over the years made it dangerously soggy and prone to collapse. Scientific studies conducted since 2014 have found signs that similar giant slides have occurred repeatedly in that stretch of the North Fork Stillaguamish River Valley since the Ice Age.

In paperwork filed weeks ago, state experts said they planned to offer no conclusion on the slide’s cause, but they made clear they are prepared to testify that logging wasn’t a significant factor. They also said drilling has shown the rain that soaked into the hillside didn’t drain into the slide.

The state’s experts concluded the hillside was so geologically complex as to preclude “any reasonable predictability of the timing of a long-runout landslide within the perspective of a human lifetime,” court papers show.

The plaintiffs’ attorneys on Tuesday said they believe those opinions don’t reflect science, but instead a willingness on the experts’ behalf to tailor opinions to “best protect the state’s interest in this litigation.”

“We know this is true only because some of those emails slipped through the cracks and were not destroyed as they were intended to be,” they wrote.

They said there is evidence to suggest the experts at one point were prepared to opine that human actions had made the hillside more dangerous. They asked the judge to impose a sanction of finding the state was negligent, and should have known that its property was more dangerous because of man-made alterations.

They also said the state should be barred from calling its experts to testify, among other punishments.

“The state has spent over $3 million in taxpayer dollars developing the opinions of its expert team, but that undertaking was launched 17 months ago with a secret pact by the state’s experts, with the blessing of the state Attorney General, to systematically destroy emails and repeatedly deceive the plaintiffs about what they were doing,” the lawyers wrote. “Rather than an investigation to find the truth, the undertaking of the state’s expert team has been a carefully orchestrated scheme to hide and distort the truth.”

The state, Snohomish County and the Grandy Lake Forest Associates timber company all are named as defendants.

Tuesday’s motion came after the judge’s Aug. 11 dismissal of most of the claims against the county. The ruling affected about a dozen slide survivors as well as legal claims linked to 28 people who lost their lives.

The judge dismissed the claims after the county prevailed in a series of pre-trial skirmishes that focused on its potential legal culpability. The court found that only a handful of the plaintiffs could pursue claims that the county had failed to adequately warn them of risks.

The county Monday acknowledged that it may spend up to $5.5 million for outside legal counsel on the litigation.

The County Council approved a contract amendment Monday with a 3-0 vote. It was the fourth time the council has authorized paying more money to the outside legal team it hired for the case.

Scott North: 425-339-3431; north@heraldnet.com. Twitter: @snorthnews.