A Chemical Action
Bud Roegge litigates an agricultural disaster
Published in 2017 Michigan Super Lawyers magazine on September 5, 2017
L.R. “Bud” Roegge learned a valuable lesson early in his career: You work during lunch hour, you get the call. “I was just there,” Roegge says of the day he landed the Michigan Chemical case in 1974. “I was surprised the partners stuck me on it.”
The crux of the case was pretty straightforward: Someone at Michigan Chemical placed the wrong paper bags on a pallet and shipped it out.
“Michigan Chemical made magnesium oxide, a white-powder substance, which was used in cattle feed as a supplement,” Roegge says of his client. “They sold it to Farm Bureau, in Battle Creek, which mixed the magnesium oxide into their cattle feed and sold it in bulk, mainly to other co-ops throughout the state. It was packaged in brown paper bags with stenciling saying ‘NutriMaster.’”
But Michigan Chemical also packaged polybrominated biphenyl (PBB), a fire-retardant chemical labeled “FireMaster.”
“Somehow, and nobody to this day knows how, 13 bags of FireMaster got put on a pallet that were supposed to all be magnesium oxide. And it went to Battle Creek,” Roegge says. “One of the [Farm Bureau] workers saw the bag and realized it was a different name, so he asked his manager, ‘What do I do with this?’ And he says, ‘Oh, it’s gotta be the same stuff, just mix it in.’”
He did. What ensued was one of the worst chemical and agricultural disasters in U.S. history. More than 30,000 cattle were destroyed, crippling the dairy industry and making global headlines. “Once it went into the feed chain, every shipment that went out of Battle Creek, all the way to the U.P., was contaminated,” Roegge says. “And PBB turned out to be very resilient. It stuck to the metal mixers and was extremely hard to get out of the system. After several cleanings, it still was testing positive after a year.”
For Roegge, who had a degree in chemistry and was the son of a feed-mill operator, the case was a natural fit. “I was pretty familiar with the types of facts that came out of this, and I passed organic chemistry, so at least I could pronounce the words.”
There was still much to learn. “There was so much I wasn’t familiar with, like all the systems farmers claimed were damaged in their cattle—the endocrine to the liver and kidneys,” he says. “I didn’t even know cows had four stomachs before this.”
He spent the early part of the case keeping track of claimants, paying claims and hiring experts, until the case went to trial in 1977. The key ingredient in the defense? Science.
“We had a U.S. Department of Agriculture scientist and a private laboratory in Chicago, among others,” he says. “All of them had either fed PBB to animals in low doses, or high doses; none of them got a toxic response that looked like what the farmers were claiming was happening. It looked to us like maybe there wasn’t the terrible damage to the cows.
“One expert that testified said, in the amounts we were seeing [in some cows], PBB was about as toxic as table salt,” Roegge says.
This enraged not only farmers who lost animals—some of whom Michigan Chemical paid claims—but also the general public. “I don’t want to sound like Donald Trump here, but the press was pretty much against us at every juncture,” he says. “It doesn’t make good reading to say, ‘Chemical gets into cattle feed, no animals are hurt.’”
Five cases went to trial—two bench and three jury—all of which ruled that PBB did not cause significant harm. All told, the paper trail was exhausting. “Sixty-three witnesses were heard in person or by deposition, the trial transcript was 25,000 pages, and the court estimated 70,000 pages of exhibits were received,” he says.
After the trial, Roegge took his family to Europe for some R & R. While in London, they exchanged pleasantries with their cabbie, who asked where they were from. When Roegge told him Michigan, the wide-eyed driver replied, “Oh! Yes, I’ve seen you on the telly, with all the cows dying and people thinking they’re poisoned.”
Roegge laughs. “That really impressed the kids, but I think he really saw plaintiff’s attorneys, because we didn’t get that kind of screen time.”