EP 506- Nitrous Oxide Trial Part Two

Episode Notes

Transcript

Speaker 1:

Welcome to The. Jury. is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm Tim Cronin personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth.

Tim Cronin:

Welcome to another episode of The. Jury is Out. I’m Tim Cronin.

Johnny Simon:

I’m Johnny Simon.

John Simon:

I’m John Simon.

Tim Cronin:

So gentlemen, we’ve been talking about and we’re going to continue talking about your recent trial in the chaplain case versus Geiger Coffin, Cardinal and United Brands. We went through what happened in the case of the development and kind of piecing it together in discovery. But one thing I haven’t asked you yet is can you tell me about the clients?

Johnny Simon:

Wonderful. I don’t think I’ve ever had, what

Tim Cronin:

Are their names?

Johnny Simon:

Karen and Jason. So Jason and Karen, Jason Pale and Karen Chaplin. They’re Marissa’s mother and father and they are wonderful. And I thought what was awesome about them, one of the best aspects was they shared three children together. They were divorced at the time of trial, but they were like met when they were 14 or 13 best

John Simon:

Friends

Johnny Simon:

And they’re best friends. I mean, they’re divorced, they’re not married to one another, but they were best friends and they were there for each other during this whole tragedy. And both were on the same page, no fighting at all about anything. And they were just people who were egregiously harmed by all parties involved and want to do the right thing and help other people.

John Simon:

I mean, just unspeakable harm. You can’t even contemplate what they have gone through and what they’re going through. And the thing that they both shared was their absolute devotion to this case and this cause. And at every turn, this is something that the more they learned about it, the more determined they were to see it through and just terrific. Just

Tim Cronin:

Wonderful. Now John, you put both of them on the stand. Yes, I caught some of the trial. Erich and I were getting ready to try another case. So we were busy here, but on one of the days, in the first week I think of your trial, Erich and I were out in the same courthouse for a pretrial. So we stopped in and watched some of it and I caught the tail end of dad’s testimony and then the beginning of United Brands owners and corporate representative’s deposition that was played. And the dichotomy of that was striking. But as I understand it, did you sandwich that corporate rep Depo in between both of the

John Simon:

Clients? Yes. Yeah, we did.

Tim Cronin:

What was the approach you took in putting them on the stand?

John Simon:

I think the best way to frame what the defendant did is not just the defendant’s conduct, but the consequences of that conduct. It’s like when you try a case, sometimes you put the liability on and then you put the damages on. And we really wanted to show that here’s their conduct, but here’s what their conduct has caused

Johnny Simon:

And how they feel about it. And the punitive damages claim, the standard is a conscious disregard for safety or a complete indifference and showing, I think it highlighted the indifference of United brands and how people perceived it because of where he went in the trial. I mean he went in sandwiched between Jason and Karen.

Tim Cronin:

The dad was breaking down on the stand on end of his testimony.

John Simon:

He did fantastic, did a one. So did Karen. They both did a great

Tim Cronin:

Job. He’s breaking down. And when I remember saying, this has to stop, this cannot happen again.

John Simon:

That was the last question that I asked him was, you had to go through this heart wrenching stuff for two weeks and now you’re pouring your heart out to 14 strangers. Why on earth are you doing this? And his answer, I mean said it all that what he had learned and throughout the case that Bara wasn’t the first one, but he was going to do everything he could to make sure she was the last one,

Johnny Simon:

And

Tim Cronin:

Then juxtaposed against the indifference shown by the United brands owner and corporate representative and just kind of set the stage. John, you did voir dire in the case, right? Yes. And I want to go through that and ask about a focus group you guys did in advance of the trial. And

Johnny Simon:

Johnny, you did opening

Tim Cronin:

And closing, correct? Yes. And you had worked up, you had a knowledge of all the documents and worked up a lot of the liability.

Johnny Simon:

Kind of how we split it was my dad took on voir dire and the damages, which if you’re not incorporating damages into every witness and the liability, I mean you’re not doing it right. But my dad took on the first responders the issue of, well, there were two levels

Tim Cronin:

Establishing the chain that he did the drug, but exactly,

Johnny Simon:

Yeah. And we decided that my dad would do the parents just because closer in age to them, connected way better. And your original question is how did you approach it? And even though their testimony was 20 minutes, I think I watched my dad prep for that testimony and evaluated 25 hours conservatively. I mean that’s like work that I observed,

John Simon:

And lemme just say it wasn’t spending all of that time with them to figure out what they needed to say. It was me spending all of that time with them so that I knew ’em better. I knew who they were. The more time I spent with ’em, the more I liked them. The more I learned about ’em, the more I understood about what they’re going through. And I’m telling you with both of them, it didn’t even matter what the questions were. I mean it really didn’t. We made an effort to, from every minute that we were in the Courtroom, every minute we were in the building to recognize the seriousness of what we were doing. And to us it was a mission. And with our clients it was a mission and we never lost focus of why we were there and what we were trying to do. And

Tim Cronin:

So we have attorney meetings and sometimes we have many continuing legal education classes for each other. And during Covid, forget what the topic was, but you boiled down all of our goals and what we do to two basic rules, make the defendant look bad, make the plaintiffs look good. And so you brilliant you. Well keep things simple. You made the plaintiffs look good. And in between that, Johnny, what was your job?

Johnny Simon:

Make the defendants look bad. Tell

Tim Cronin:

Me about Mr. Zaia, who owns United Brands and what happened in his Dhir that you played between these two parents that lost their

Johnny Simon:

Child. So you can’t really make this up, Mr. Nesser, he’s the CEO and owner of United Brands and has been since the early two thousands. In the early two thousands, there was a nationwide drug like bust or it was called Operation Pipe Dreams. And essentially what happened is John Ashcroft, who was the attorney general at the time, led a nationwide sting against the online sellers of drug paraphernalia. It’s early two thousands, the internet’s coming up and operations are starting to sell bongs pipes, one hitters cocaine free base kits on the internet, which exploded. And so Mr. Ashcroft didn’t like that. And so there was a sting against, I think it was 73 or 63 individuals of which Mr. Zaia was one the

Tim Cronin:

Owner of United Brands thereafter.

Johnny Simon:

Yes. Who at the time was running a head shop or a smoke shop, what he called a quote.

Tim Cronin:

That’s interesting. I remember for this depot you played that. He said he didn’t know what one of those was.

Johnny Simon:

That’s correct. He called it a lifestyle store, which I still don’t, I think everyone can imagine what kind of lifestyle store it was. But he started it and was actually selling nitrous at his lifestyle store and turned around starting United Brands and start

Tim Cronin:

Between there. He got convicted and was a felon.

Johnny Simon:

Yes, he pled guilty to a federal felony for conspiring to sell drug paraphernalia, which is what we alleged that he did in this case through United

Tim Cronin:

Branch. Which brings up that you didn’t just have product liability claims, you also had a conspiracy claim in this trial which you succeeded

Johnny Simon:

On. Yes. And a civil conspiracy is an agreement between two or more parties to do something unlawful or illegal, but you don’t have to prove illegality, you just have to prove an underlying tort. And we alleged a conspiracy between United Brands and coffin Cardinal, which it’s not something that attorneys run into very often. No one really understands the significance of it or the use of it. And it really does allow you to get into statements that you otherwise might not get in or hold people jointly and severally liable for one another’s conduct.

Tim Cronin:

It’s basically like civil Rico Giuliani will ignore what has happened with him in his later life. Brought help bring down the mob is through RICO actions. If you can tie them all to one organization, they’re all good for every crime. Any member of

Johnny Simon:

That

Tim Cronin:

Conspiracy committed. And in civil cases,

Johnny Simon:

Right? It’s what brought big to bat. One of the things I did to prepare for opening and close is I got and reviewed all of the big tobacco openings and closings that I could find, get my hands on. They A, that is what brought big tobacco down. Lemme put it this way. It brought big tobacco having to pay some money to people who they addicted and caused to have cancer and die. But they created the American Tobacco Institute and they were a non-party, didn’t sell anything. They just published a lot of information,

Tim Cronin:

We’ll call it disinformation.

Johnny Simon:

Yeah, disinformation lies. And there were communications that they allowed were able to get into evidence as statements of a co-conspirator because they alleged a conspiracy between the two. And reading that, it was so interesting to see the kingpin or the drug dealer and how they framed it. That was really interesting.

Tim Cronin:

So tell me, I imagine you had a lot of questions for Mr. Zaia, the CEO and owner of United Brands. Did you play about four hours of deposition testimony in your case?

Johnny Simon:

Well, I knew from the last case that because of the egregiousness of the conduct, that there was a chance that Mr. Zaia was never going to be in the Courtroom. And so I had to take a trial deposition using all of the exhibits that we were wanting to get into evidence, lay a foundation. It’s very technical. I also had to be very patient from which that I’m not, and deal with a lot of answers and non-answers

Tim Cronin:

And nonsense objections.

Johnny Simon:

Nonsense objections. But it was just really a fight. I mean, I think in the beginning of his Dhir, he said he could not authenticate his own deposition from the last case

Tim Cronin:

I watched, 15 to 20 minutes of beginning of what you played right after the dad had gone on the stand. And again, that dichotomy was striking. And every single question you asked him, you knew you weren’t going to get a straight answer. And you were prepared to pull up a document sworn prior sworn testimony with the page in line ready or their own documents that you got from the other case or this case to every single admission you got from the man. You had to pry from him by presenting him with undeniable prior testimony or documents from his company to get him to finally acknowledge. And even then he still did.

Johnny Simon:

And I was going to say that, and that I think is the turning point in the what makes it a complete indifference or you really want to anger the 12 people who have to sit there through that is they’re seeing it with their own eyes and you’re still denying, I think there was a point where there was an email sent, I don’t think this came into evidence, we didn’t need it, but it was an email sent from Mr. Zaia to someone else and he said, I’d never sent that email. And I was like, well, I mean, is this your email address? And he’s like, yeah, but I don’t send my own emails. And there was a tag that said it’s from his iPhone, someone happy have your iPhone sending emails for you. I mean, that’s a little strange. So

Tim Cronin:

He

Johnny Simon:

Come in

Tim Cronin:

And in response to all kinds of things that he shouldn’t have said this for say, I don’t have an opinion on that.

Johnny Simon:

Yeah. He had been prepared, I guess by his lawyers to say he didn’t have opinions concerning

Tim Cronin:

What kinds of things. Give me some examples. Things

Johnny Simon:

That any decent human being would have opinions about, should his company be selling nitrous oxide into the inhalation market?

Tim Cronin:

Should you sell drugs to children?

Johnny Simon:

Should you be poisoning kits? And he would

Tim Cronin:

Say, I don’t have an opinion on that. I

Johnny Simon:

Don’t have an opinion. I mean it was an hour of I don’t have an opinion, I don’t have an opinion, I don’t have an opinion on repeat about Was

John Simon:

There a ruling on that? On being able to ask him? Yeah, a standard of care sort of questions

Johnny Simon:

Right before his deposition.

John Simon:

Right. And I think that was the reason for the, I don’t have an opinion because I think the court had already ruled that you’re allowed to ask those questions and he needs to answer

Johnny Simon:

Them. We had to run up to court the day before the Dhir because I received an email, it was an email that said Mr. Zaia will not be giving opinions in his deposition. So we had to go up to court and I said, judge, I have his deposition. He’s given opinions before. He’s under oath and has to, we’re

Tim Cronin:

Talking about what a reasonable owner of a company would do when considering selling nits oxide to head shops.

Johnny Simon:

And you think about

Tim Cronin:

He’s qualified

Johnny Simon:

To give

Tim Cronin:

Opinions

Johnny Simon:

And he disqualified or tried to disqualify himself by saying, I’m not an expert in how these things should be marketed and sold and made him look ridiculous. And that became an issue at the pretrial. It was what relevance is, the fact that he doesn’t have opinions and he doesn’t have an opinion about it, how does that work? He

John Simon:

Doesn’t have an opinion about what reasonable conduct should be for a company like his.

Johnny Simon:

Sure. And I said, judge, I mean, number one, he’s bound by that number two

Tim Cronin:

Direct. So the lawyer can’t argue

Johnny Simon:

It’s incredibly

Tim Cronin:

Relevant what they think is or isn’t reasonable to

Johnny Simon:

Prove a complete indifference if he doesn’t have an opinion about the harm his conduct’s causing. Yeah. But it was like, I think it was about 45 minutes about whether or not he has opinions about something. Is he really going to say he doesn’t have any opinions about the harm nitrous oxide causes people.

John Simon:

Yeah.

Johnny Simon:

It was mind boggling

Tim Cronin:

Going into trial. You guys did a focus group, right?

Johnny Simon:

Couple,

Tim Cronin:

A couple focus groups.

John Simon:

What

Tim Cronin:

Were your biggest concerns going in that you may have tested with focus groups? What were you worried about, reasons you might

John Simon:

Lose? I think what turned out to be the biggest issue that was confirmed by the focus groups was some people’s inability to even consider a case against a company who sold a product to another company who sold it to a young man who inhaled it and

Johnny Simon:

Drove over knowingly and voluntarily

John Simon:

Kept knowingly. Voluntarily with

Johnny Simon:

A warning on the box that said, do not inhale.

John Simon:

Yeah. I mean with a lot of people it was you don’t go past go. I mean that was the beginning and the end. And what

Johnny Simon:

We found out is people don’t have a lot of experience with this drug, nitrous oxide, but they have a lot of experience with other substances and they’re really not comparable. But all of the people who couldn’t go there were comparing it to alcohol, comparing it to,

Tim Cronin:

It’s like Sue and Anheuser-Busch.

Johnny Simon:

Exactly. I mean you just kept seeing over and over remember the tide pots.

Tim Cronin:

So that’s what I want. This is a major issue. You have to take care of it in voir dire and find those people and get ’em off. How’d you do it?

John Simon:

Well, we thought a lot about it, talked about it, and it’s like how we normally approach any voir dire, and that is your worst issue or your top two worst issues. You got to hit it head on. And what I thought of doing here was to really underplay the case and actually feed into the whole concept of we’re not going there. And I think what we ended up doing was just basically asking in the beginning. As a matter of fact, I was at a point very early in the voir dire, I hadn’t gotten to that point yet.

Tim Cronin:

I understand Someone brought it

John Simon:

Up, someone brought it up on their own. And so for instance, I’m five pages ahead of where I’m at. I’m going to ask, does

Tim Cronin:

Anybody know these police officers? I figures out what the case,

John Simon:

I’m asking if anybody knows of police officers. And some gentleman stood up and said, blister Simon. I don’t know the police officers, but I can tell you this, you ain’t going to get anything from your wife, any

Johnny Simon:

Category. He was a liquor store owner. Right. He

John Simon:

Said, I owned a liquor store. And he said, and let me just tell you, I’ve got sued multiple times for things I sold. I didn’t have anything to do with how somebody used it or what they were doing. And he said, I just can’t. And he was polite about it. Oh sure. But he just said, I cannot under any circumstances beyond this case because I won’t find for you no matter what. Which

Johnny Simon:

Really helped. He was nice and reasonable. He was

John Simon:

Nice and reasonable. And then that opened the flood gigs

Tim Cronin:

Having doctors on the panel at med mal cases.

John Simon:

Yeah. Yeah. So anyway, so what’d you do?

Tim Cronin:

Skip 12 pages?

John Simon:

Actually I told everybody, I said, we’re putting this down, we’ll put this outline down. And I said, if I only had 15 minutes, this is the only thing I would talk to you guys about. And I just put the outline down and said, who else feels that way? Unless we started on one in the box and was this is

Tim Cronin:

After they understood talking about the manufacturer and distributor and then the retailer?

John Simon:

Yes. And right. And at that point, at that point, no one knew whether it was for inhalation or not, how we didn’t talk, how it was marketed. And also nobody knew about the warning on the box. I was saving the warning on the box for some people who were maybe on the fence a little bit. And so we went through and the amazing thing, it really wasn’t amazing. It was somewhat predictable. The people who had, there was nobody on the fence. People had strong feelings or they didn’t, it’s

Tim Cronin:

About identifying,

Johnny Simon:

Getting ’em to say

John Simon:

Yes. And so none of them were shy about it. I mean they really weren’t. It was a matter of there were 80 people on the panel that came in and I literally asked that question to every single person, all 80. And it went pretty quick because

Johnny Simon:

Originally you had asked me about it and I said, I came up with a question that you said was too good.

John Simon:

Well, you know what? Here’s the thing. Sometimes disagree. Lemme just,

Johnny Simon:

It was the warning. Read the warning on the box that says do not inhale.

John Simon:

Yours was with the warning.

Johnny Simon:

He inhaled the product. Now we’re suing the

John Simon:

Company.

Tim Cronin:

What was your exact question? All 80 people.

John Simon:

My lesson here is don’t try to put too fine a point on any question in voir dire because you’re going to go places that you didn’t think they were going to go. Right. They’re going to rephrase your question and take you different places. And it just got to the point of, look, this person inhaled something, passed out and drove through a building and killed somebody. And now we’re suing the company that sold it to the company that sold it to him. And that was it. I didn’t talk about a warning. And people were like, no, not going there. And it was so easy.

Johnny Simon:

It almost got to the personal responsibility thing. The hard part about our legal system, I think is the law considers alternative causes. The law requires folks to actually consider the fault of everyone contributed how much they contributed. And we don’t generally do

John Simon:

That. It’s funny, one of the jurors in voir dire raised that and said, now wait a minute, can we assess fault?

Johnny Simon:

Yeah.

John Simon:

Right. And I said, I think going to be given an instruction to assess fault between all three defendants. And people were like a sigh of relief going, oh, okay, that makes sense. He was a younger guy with

Johnny Simon:

Tattoos. And he goes, if I can assess fault between the parties, I’m

John Simon:

Good. Right? But it was funny because we’re going through this and I think there were 26 or 27 people who were pretty clear that they couldn’t consider no matter what, doesn’t matter what the evidence is, we can’t consider at all a claim against United Brands. And they were all gone and they couldn’t be rehabilitating, they were just gone. I mean,

Johnny Simon:

They were saying, doubling down so hard,

Tim Cronin:

You’re never getting any money from me, no matter the

Johnny Simon:

Plaintiff is not going

John Simon:

To win the case. And that’s what it was. And then the other folks, it made it easy because all I would say is, can you stick around and listen to the evidence? And they would go, sure. And that’s kind of what we were left with.

Tim Cronin:

So then you want to see just how open-minded the remaining people are. And you had a particular example to illustrate

John Simon:

It. So one of the things that I, and I was debating whether I should do this or not, but I remember you did your

Tim Cronin:

Practice session. I didn’t like it. Well, you must have done it differently.

John Simon:

You

Johnny Simon:

Did do it much. It was much

John Simon:

Differently. But here was totally defined. Lemme just tell you my thinking in deciding whether or not to do it. I had already gotten through the entire 80 people and identified 26 or 27 and clearly where they were going, they were leaving. And so the next issue was these people, even the ones that were still there, nobody liked the case. I mean, everybody who was still there who didn’t say, I can’t find for the plaintiff, you want to see

Tim Cronin:

If they can think about a

John Simon:

Little differently. And what I wanted to do was condition a little bit, frame it a little bit, but I didn’t want to undo what I had done getting the folks off. And so I brought up the Tide pods challenge, and I’m sure some of the people listening to this knows have heard of that. I was surprised because more than half of the hands went up when I asked about it in during voir dire. I heard when

Tim Cronin:

You brought up the Tide pod challenge, there was a sigh in the Courtroom.

John Simon:

Yeah, well it

Tim Cronin:

Was, I didn’t know where you were

John Simon:

Going. There was a sigh. And then I picked one of the panel members who ended up being on our jury and I picked her and she was foreperson, very favorable, very favorable. I could tell she was with us and I directed it right at her and said, so everybody’s heard, have you heard of the pod challenge where kids eat it and they videotape it, they put it online or maybe some little toddlers end up swallowing or eating it. And I said to the juror, I said, now if a 4-year-old ate one of these and got really sick or died, should Proctor and Gamble be held responsible? And she was with us and said, absolutely not. And I said, I agree, that would be ridiculous. Does everybody agree that’s ridiculous. And people were waving their hands and everybody in the room thought it was ridiculous to hold ’em responsible. And then I said, okay, let me change it a little bit. What if they sold them in candy stores and everybody was like,

Johnny Simon:

Their eyes, I get it,

John Simon:

Get out. And so she said, that would be crazy. I think she even said, that would be criminal, they should be put in jail or something. And I said, well what about this? What if they took the videos of the teenagers doing the challenge and posted it on their website? That’s

Johnny Simon:

How they market the product

John Simon:

Should be. And then I know what I asked. I said, so what you’re saying is no matter what the circumstances are, how you market, it matters. And everybody kind of agreed how you market it. So I kind of let ’em know. And then after that, I think it was after that one of the panel members raised their hand and said, are you supposed to inhale this? They didn’t even know you’re supposed to inhale it. And I said, well no, there, there’s a warning on the box that says don’t inhale it. And then another woman said, well, why are they selling this in smoke shops? And she did that on her own.

Johnny Simon:

Counsel for United Brands wouldn’t answer that question.

John Simon:

Well, I said, I’m sorry, you’re going to have to have Mr. Morris is going to have to answer. I said, I’m sure he’ll answer that for you. Yeah. So no, it was,

Johnny Simon:

And that’s really what the case then was about. Why are they selling this in edge?

John Simon:

And I’m telling you, how many people ask that invo

Johnny Simon:

Defense attorney, I couldn’t believe. I’ve been practicing, I think this is eight years, nine years, and I’ve never seen a jury reach the essence without being told about what the case about. They just cut through all the wheat from chaff and asked the question to both parties. They were like, okay, okay. Why is this happening? To the point where he’d ask a question, the defense attorney would ask a question about something completely different and they’d go, yeah, I understand that, but why are you selling this in head shops repeatedly? Over and over. It was frustrating people. He wasn’t answering it and he kept saying, I can’t answer it. The answer is momani. Yeah, money. Right. So he couldn’t answer the question. It’s kind of what the case was about. You know what

John Simon:

Money, I’m telling you that the question that the panel member asked, why are they selling it at smoke shops? Yeah, no, that was the one that said how you all did it was the same. It was the panel member. And she said, I got a question. Are you supposed to inhale it? And I said, no. And then she said, well, why in the world are they selling it at head shops?

Johnny Simon:

One of the jurors who made the panel, it was a mailman and I think it was the first person that Mr. Morris, the attorney from United Brands called on because he was kind of on the fence with causation, contributed to cause the warning. He didn’t like the warning being on the box and the kid inhaling it and he goes, you’ve something. First question I think was directed to him and he goes, yeah, I understand there’s a warning, but why are you selling it at head shops? And what we learned from our focus groups is that issue cuts both ways. It’s bad that it’s on the box, but it also shows intent.

John Simon:

The focus group response for most people, the people who were with us anyway, they said that just shows that it’s intentionally, there’s

Johnny Simon:

Like five different exhibits or documents that are warnings that we said were CYA documents, cover your ass documents. And every person who was with us was using the documents to prove intent. Every person who wasn’t with us was using the documents to immunize them from liability. The

Tim Cronin:

Focus of the evidence on liability for United Brands was they knew exactly was that they knew exactly what they were selling this for. They knew it’s dangerous despite them not admitting it. Right. Now, were there any other main focuses of what you were trying to show about what United Brands knew or what they

Johnny Simon:

Did? It was a marketing case, a marketing and sales case, because it’s promotion of the product. It’s one thing to put it in places where it’s going to be used a certain way. I think it gets you there on the strict liability claim is putting it in the stream of commerce as an inhalant renders it defective and unreasonably dangerous. That was our position. The second part though was what they did to promote it and in the face of what they knew was hurting. Yeah,

Tim Cronin:

I mean that’s the heat for punitive damages, which you had a punitive damages. I think it’s all defendants. I

Johnny Simon:

Thought we should get a directed verdict on a punitive damages claim.

Tim Cronin:

Yeah, that’s always a dangerous thing to do. It’s better to turn it over to the jury. I can say that once you win. So wasn’t there a marketing person put on the stand?

Johnny Simon:

So in their case they called a few different witnesses, one of which was their vice president of marketing who I had deposed. And she was a nice person. Kind of a contrast between Mr. Zaia and her. I mean, you could tell that she had some remorse about what they were doing to the point where she admitted to me in her deposition that United Brands has no business marketing or selling nitrous oxide to head shops.

Tim Cronin:

I imagine she had to take the position. So we’re not doing it anymore.

Johnny Simon:

Well, so we’re really not doing it because I don’t know if those are smoke shops or head shops. I’m just a marketing person. I’m not a salesperson. You’d have to ask them. But the jury had already seen all the shops and who they’re selling to.

John Simon:

I think what happens is the defense lawyer put her on, it was sort of like setting the table for me. They’ve seen all of these smoke shops and the amounts that they’re selling to individual smoke shops. And repeatedly when they said we’re not selling it, there’s evidence they’re continuing to sell it. And then he put her on for about 20 minutes talking about, they pulled up one ad and Johnny had put up dozens of ads showing that they’re in marketing it for inhalation and recreational use and inhalation. And so he puts up a chef wasn’t it

Tim Cronin:

Was on their website. And I guess they promote on their website that they partner with gourmet chefs. I’m not really

John Simon:

Sure which. They may, I mean they, I’m not doubting they don’t do that. But

Tim Cronin:

They also sell it to head shops to be used as an inhaler.

John Simon:

So one of the first things who aren’t

Tim Cronin:

Usually exclusive,

John Simon:

The first thing I did was put up

Tim Cronin:

A,

John Simon:

I found a no, I was an ad from you. And I said, did you use this yet

Tim Cronin:

Highlighted

John Simon:

It said for breathtaking experiment. I asked Johnny, is this their ad? He goes, yeah. So I pop it up there and what did it show? What it had? It was naughty whip woman laying on the ground, whipped cream on her breasts. And it said something about do this breathtaking experience

Tim Cronin:

For bakeries. Right, right.

John Simon:

That’s what I asked. I popped it up and said, is this ad for the coffee clients or is

Tim Cronin:

It for the Starbucks?

John Simon:

Starbucks. I think she’s a very nice lady and I think she was honest in her deposition. I mean she was critical of the company, but she kept on her own just not apologizing but saying, we don’t do it anymore. We don’t sell it to them anymore. We don’t sell it. And finally I said, why do you keep saying that? Is it because it is so bad and horrible for any company to do that, that you couldn’t conceive of any company who would intentionally do that? Right. She agreed

Tim Cronin:

And what should happen?

John Simon:

And I said, what should we do with a company that does that intentionally that markets this for inhalation? Should they be put out of business? And do you remember what she said? She sort of halfway agreed with me. Yeah, I think she did. She agreed. Yeah, they should be put out of business. They should be shut down. They should be shut

Tim Cronin:

Down. And then if I’m correct, you asked a couple questions that set up my favorite part of the case. Didn’t you ask her? So if I walk, drive the pickup

John Simon:

Truck. Yes. I said, if I go out tonight and get in my pickup and drive around to head shops in the St. Louis area, I shouldn’t find any whippets on the shelves. And she said, no, not you shouldn’t. Unless they’re like three or four years old in inventory or three years old, you shouldn’t find any on the shelves. So

Tim Cronin:

There was a couple day delay during the trial for reasons we won’t get into. But the next day you get back to the trial, you’re going to do closing arguments, but you had some more evidence you wanted to put on. Right? Some rebuttal. Some rebuttal.

John Simon:

What’d you do? So we hired an investigator after the first weekend break. The case went into a second week and we heard an opening statement from the defense attorney very clearly that we do not sell to head shops. We haven’t sold to head shops in three years. We haven’t made any sales since 2020. He repeatedly said that throughout the case as witnesses stated that in their depositions and alive. So over the weekend we hired an investigator to go out to head shops and buy Whippets. And so it was a Labor Day weekend. So we had a three day weekend, Saturday, Sunday, and Monday. And he went to about 30 shops and he bought boxes of Whippets from 26 of the 30. And the four that he couldn’t get ’em from, they were out, but they were expecting shipments coming the

Tim Cronin:

Next week. They were United Brands Whippets,

John Simon:

They were United Brands. The shelves were stacked with ’em.

Tim Cronin:

Did you bring them all in? Yeah, we

John Simon:

Did. He bought about 10 boxes from each shop. So what we did is when United Brands closed their case, the judge asked if we had any rebuttal. I said, one witness, your Honor. And we presented the investigator, we put ’em on the stand. The first thing I did was put up the slide of the opening statement of the defense attorney. We don’t do it where he said, we do not sell. And he repeated that two or three times all in the same slide. And then I said, who are you and did we hire you? When did we hire you? What did we ask you to do? And then at the right time while he was on the stand, we opened up a folding table right in front of the jury box and then wheeled in three tubs of the nitrous oxide boxes from 26 different stores. And each one was in a plastic bag we had set up and the receipt was stapled to the outside of the bag, which made it kind of easy so we could just show him the bag and where did you get it and how many. And then we started laying them out on the table. And I did that for what, 10 minutes or so, filled up half

Tim Cronin:

The nail in the coffin.

John Simon:

Well anyway, we just kept stacking them up and stacking them up and it got to the, I was afraid the table was going to collapse because they’re kind of heavy. So we finally just said, I’m not going to go through anymore with you.

Tim Cronin:

That was the last thing before close.

John Simon:

Well, no, actually it was some cross-examination throughout the case. We had presented evidence that when they say they’re not doing it, they’re still doing it. They are still doing it through distributors that they own or control or whatever. But they’re still selling smoke shops and head shops. And so defense Counsel got up and

Tim Cronin:

Established that they’re using a middleman?

John Simon:

No, he just said there’s no paper trail that you could show. He used those words paper trail, and everybody was like, what? A paper trail? No, there’s no paper

Tim Cronin:

Trail. They could connect them.

John Simon:

Then he pointed

Tim Cronin:

To make sure there’s not a paper trail. I think they’re called drug dealers. Yeah. Do you know what? It reminded me of the dark night where the joker is going, let me go, let me

John Simon:

Go. And he goes, very poor

Tim Cronin:

Choice of words. Yeah, as

John Simon:

He said that,

Tim Cronin:

I was like paper trail.

John Simon:

One of the other things he did was, I think it was the last question. He pointed up to the screen with his statement saying, we don’t sell it anymore. We have ’em for three years. And he said, you can’t say that’s untrue, can you? And the guy said, well, no, not really.

Tim Cronin:

I imagine you had some fun in closing argument, Johnny Paper Trail. I mean, isn’t that the point? They still don’t get it. They still don’t get it. So you have a kid who voluntarily went and bought this inhalant, chose to do it while driving and ran over a lady. You have the store that directly sold it to him. That’s also selling drug paraphernalia. And then you have the manufacturer and distributor that sells it. What were the percentages of

Johnny Simon:

Fault? 70% fault on United Brands. 20% fault on coffin Cardinal and 10% fault on Trenton Geiger.

Tim Cronin:

What were the compensatory damages for your clients? For the loss of their daughter?

Johnny Simon:

$20 million.

Tim Cronin:

What did the jury say about yes or no for punitive damages for each defendant?

Johnny Simon:

Jury said each assessed punitive damages. They should be responsible all three of them. So they should be liable.

Tim Cronin:

Did the jury assess any punitive damages to Trenton Geiger in light of the fact that he was already in jail? No. How did his lawyer do in his closing argument?

Johnny Simon:

It was unbelievable. It really struck right at the heart of the matter, which is

Tim Cronin:

He’s being punished.

Johnny Simon:

He’s not here because he’s in prison and will be in prison for what he did for the rest of his life, not physically in prison, but this is something that he will live with and will have to answer for in the afterlife. He said these are his sins and we think he’s already been punished.

Tim Cronin:

Did the jury assess any punitive damages to coffin Cardinal?

Johnny Simon:

Yes. 25 million.

Tim Cronin:

Did the jury assess any damages to United Brands?

Johnny Simon:

700 million.

Tim Cronin:

Ladies and gentlemen, this has been another episode of The. Jury is Out. I’m Tim Cronin.

John Simon:

I’m John Simon.

Johnny Simon:

I’m Johnny Simon. We’ll see you next time.

Speaker 1:

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