EP 604- Building Your Punitive Damages Case Part Two

Episode Notes

Transcript

Announcer:

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 Veith

Erich Vieth:

Welcome to another episode of The Jury Is Out. I’m Erich Vieth.

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon.

Tim Cronin:

We’re going to continue talking about punitive damages.

Erich Vieth:

Is there something to be gained for a defendant by somehow falling on the sword a bit and saying, we had the system, it didn’t work, we didn’t do it as well as we should have?

Tim Cronin:

Personally, I think yes, I think that’s what they should do.

Erich Vieth:

Some defendants might think, well then Tim’s going to jump on us all the more and say We just admitted at fault. I’m just wondering how would you play it if you were a defendant?

Tim Cronin:

I think the best defense trial lawyer don’t try to fight things that they can’t credibly fight that make them look bad and they come in and they just kind of own the bad conduct and go, I totally understand. You see that? You’re going to think I don’t like that. I get it. I understand why you don’t like it. Here’s what happened. Here’s how it works in the real world. It unfortunately didn’t work this time. We’re doing our best. We’re going to try to fix it. I think you’re much more likely to drive the award down if you do that than if you try to fight something that is bad conduct on top of a lie

John Simon:

Personally. Great examples of that are medical records. It cuts both ways. Don’t fight the medical records.

You got an entry in a medical record from a treater at the time before the case was going on and then you have a defense expert denying that’s what happened. Okay. Or if the flip side is there’s something not real flattering about your client in the medical records and I’m like, look, we ain’t fighting that You bought it then. That’s what the case is about, that the case becomes about that and we’re like, look, and you know what? It could be correct. It not could be correct, but we ain’t fighting it. We’re just not fighting

Tim Cronin:

It. Here’s an example of that. We tried a case last year for five weeks and there is atrocious conduct in this case, and jurors don’t like the conduct in this case, and there was a masterful job done. There were three defendants in the case, a masterful job done. I think one of the best closings I’ve ever seen was by one of the defense attorneys. Very charismatic, very likable, and she stood up with the jury right away and said almost verbatim what I just said. She goes, some of the emails and some of the internal documents, I don’t blame you. You probably saw and thought, I don’t like that. I don’t like that one bit. She goes, I get it. I understand it. I think some of them were characterized in a way by the plaintiff that aren’t really accurate but still don’t blame you one bit.

If you don’t like it, you’re not happy about it, but don’t let it distract you from the fact that the plaintiff also has to prove causation. And then they just went after causation and I think it did. We ended up losing the case and the fact that she handled that so well, if she hadn’t, I don’t think we would’ve lost the case. I think there’s other things with the case we’re not going to talk about because I think we should get to retry it, but it was done very, very well. Here’s this really bad stuff you’re going to see. I’m not going to try to fight about what it means. I don’t completely agree with what they said, but I get that you don’t like it.

John Simon:

And

Tim Cronin:

Then they moved on.

John Simon:

So we’re changing the first thing, the first rule we said is in finding the punitive conduct in your case to focus on the good and bad conduct of everybody, of your own client, of the other client, because I think in the whole scheme of things, there’s punitive conduct, as I said in every case moving forward. The next issue that we want to talk about is some examples, some examples of punitive conduct

Tim Cronin:

Where you’re finding the punitive

John Simon:

Conduct. Right, exactly. And these are sort of concrete examples which will give you some ideas maybe in your cases of where to look. You got a similar case or something close to it, and one of them was we had a straightforward auto accident that was a truck driver, and again, I won’t mention the carrier, but it was a truck driver who failed to yield, ran onto into an intersection, and my client, it was an accident involving my client, young man, terribly injured, had a brain injury, and so it was admitted liability case and the driver, the driver was a really, really nice guy, the driver of this truck, and he’d been there for six months or 12 months, but he had an entire career in the military. I liked the guy when I took his deposition, so it couldn’t be about him, couldn’t be about him.

So here I’m left with this case admitted liability. Some people would look at that and say, well, you’re done with that. What are the damages? But I thought people are going to be thinking, wow, this poor guy just started out. He spent 20 years in the military and he’s going to lose his job, and what about all of those things? And so of course I wanted to know why what happened? The police report said he failed to yield. He admitted that in his deposition, and so that’s what we did, and we found out what he was hauling and how many packages he had and what the requirements were for when do they have to have ’em delivered? Great stuff. They loaded him down, I think with like 135 packages. He had to load ’em himself in the morning at five o’clock at the warehouse. He didn’t get a lunch break and guess what?

They paid him per delivery. So they were giving him 75 cents or something per delivery, and the best thing was he couldn’t go home. He couldn’t go home until it was done. And so this was 10 in the morning and he was on delivery 34 and had a hundred more packages on the truck. And so that became the case. That was the entire case. We ended up getting a really good result in that case, a good verdict, and it was the right, that was the real culprit was he was trying to do his best, but he’s under pressure. He’s in a hurry. They put him in an impossible situation, right, forcing him to rush and be reckless. They overbooked him. And that was a good example.

Erich Vieth:

It seems like, and I’m familiar with some of these cases that you’re going to be talking about. What’s interesting to me is you’ve done these sorts of cases all your career and your radar is out for these kinds of issues. Let’s say for an attorney who doesn’t handle so many bigger tort cases with punitive damages. It seems interesting to me that a lot of the stuff doesn’t, it’s not obvious at first glance that there’s a punitive issue. And as I recall, maybe correct me if I’m wrong, wasn’t this an issue on this delivery service? It became apparent

John Simon:

As

Erich Vieth:

You got into the case. It

John Simon:

Wasn’t. Yes, and we ended up being able to submit to the jury the issue of punitive damages, and we started out with a very nice man who didn’t stop when he was supposed to stop and admitted his fault and they thought was the end of it. And actually it was just the beginning.

Erich Vieth:

So these cases don’t come into your door with a label on ’em, punitive case. It’s not necessarily something obvious when you first hit the case, and I am suspecting that what you would say is you have to get into the case to sometimes spot the issues

Tim Cronin:

And you can’t have a narrow view. You need to broaden it. You have to be looking for, and look, the more types of cases you handle where you figure out these different motives that companies have for doing things a certain way, which is usually profit driven, the better you are able to find it. But if you have a narrow focus in a case like John just talked about, you may just be going in and being like, oh, well, you violated this traffic law and you admit you were negligent and you contributed to cause the accident and therefore it’s your fault. I’m done. Leave the depo. And that’s not what John did. He started asking a bunch of questions to see if something peaked his ears up,

John Simon:

Why I wanted to

Tim Cronin:

Know why it happened, peaked his ears up so that he could be like, oh, found one. And even if you find one, it doesn’t mean you stop because you might find another one. So you’ve got to

John Simon:

Ask question questions. That’s something we all kind of fall prey to, and that is sometimes you find a really good fact for you in the case, something the other side did that was terrible. And

Tim Cronin:

Then you have blinders on and that’s it.

John Simon:

You’re like, wow, this case is over, but don’t stop digging. Don’t stop digging.

Tim Cronin:

They might come up with some excuse for it later.

Erich Vieth:

Yep. Also, it seems to me that if you’re really, really busy, your day is just filled with stuff. You might not slow down enough to appreciate some of this stuff going on. What we’re talking about right now is make sure you build into your day some time to actually chill out and start thinking of the case in various ways, even though the urgencies of the day are going to interfere with that and tell you to get up and move and get to the next thing, get to the next thing. It seems like some of this stuff you need to slow down and think about it more.

Tim Cronin:

Look, sometimes you get in a situation where you might have a depo every day of the week, but as a general rule, if I’m doing that, it’s usually, most of them are in one case and I’ve taken time in advance of that week to think through all of them and jot down notes and make outlines. But if I can, I try to build in a minimum of at least an entire day, if not two, before any kind of significant depo where I have nothing on my calendar other than thinking about and prepping for that depo so that I can think of all these different ways. I may come at it to ask questions, to maybe find out things that I didn’t know. It’s

John Simon:

Called creativity,

And it’s like writing a short story. If anybody’s tried to do that, you can’t sit down. Most of us, I know I can’t. And say, okay, I’ve got two hours. I got to be creative and come up with, it’s thinking about it and you’re thinking about it all the time. And you’ll see something like the railroad crossing case I was talking about. I saw so many things. I started looking at railroad crossings because the case is pending and I’m looking at how they’re designed. I’m looking at how they go up. I’m looking whether they malfunction or not. So another case that comes to mind was a trucking case where I had a driver on an interstate highway driving a tractor trailer who crossed the center line, hit my client’s. They were the parents of my client’s head on and killed him. And it turns out that this gentleman, this driver had a positive tox screen cocaine. He was on cocaine, cocaine, cocaine. And so you think, wow, this one’s over. This is over. This is over. That’s the first thing that comes to mind. What could be better? What could be worse than

Tim Cronin:

That? A bunch of ’em.

John Simon:

Well, right? And so again, I started doing discovery and the other attorney was fine. Attorney on the other side said, well, what John, what are you doing? What else do you need? This thing’s over? I just wanted to do what I needed to do. And so I found out that the, the actual truck that he was driving had one of these devices on it that monitor the driver’s conduct. For instance, anytime he would speed, it would show a speeding violation of where it was at, when it happened during the day, how much over the speed limit that he was driving, hard stops, all of these things. And so what I did and even kept track of his logs, the electronic log, I ended up getting a copy of the software. I know what it was. The company purchased the software and the company purchased the software, get this to get a 40% discount on their insurance. They never downloaded the information to look at. So they had it on the truck, it was recording all of these things, and they never downloaded it at the office to look at it for their drivers. So I purchased the software, downloaded it, and we had an expert downloaded in our office, and it was one of the most interesting demand letters I ever made, but it literally showed like 180 federal violations in a six month period that this driver had. And again, they never even looked at it. And if they had, they would’ve had

Tim Cronin:

To take them off the road and it wouldn’t happen.

John Simon:

And you know what? I took the corporate rep deposition, it was their safety director, and I confronted them with it and said, look man, this is what this shows. You disagreeing with this, am I looking at this the right way? And I said, well, I mean, what does it take for somebody to get fired or disciplined? And he said, I got to admit that looks pretty bad. And I said, well, let’s put it this way. In the first week of this, he should have been let go, right? And he went, yeah. And again, it was the right thing. He said the right thing. He was prepped the right way. He had a good lawyer defending him, but it becomes a bigger issue. It’s the company involved, not just the driver. And then Tim, I know the last case that you and I tried together was a toner case.

Tim Cronin:

So that was a 535, and we’ll talk about this in more detail, $535 million verdict 10 months ago. It was in March of last year, 60 million compensatory, which is a great result on its own. And then 475 million imp punitives, it’s ongoing stages following the verdict and a judgment. So there’s some things we can’t get into, but we came into that case before you and I started taking depos. And John, you took the first several employees depots. We had a government report that was partially redacted. I don’t remember if the department of public, Illinois Department of Public Health or something that gave us some idea of how this could happen, which is that we had a 13-year-old client who was able to be raped by another patient and we were like a hard stop. That should never happen. Don’t care how it happened. Should never happen. Should never be able to happen.

But the more we’re able to figure out why, the more angry I think we felt the jury would be depending on what the reasons were why, but there had to be a reason. And there’s lots of different things they did that had this place running poorly. But all of it cut down to it was about filling beds and cutting costs, everything from the top down, from the parent company down. Every level of management impressed upon everyone on this unit and everyone in this hospital fill beds, cut costs. And that meant being dangerously understaffed. It meant taking kids into this unit when there weren’t even any beds still left. It meant no longer following rules of separating boys and girls on different hallways because one hallway might be full and they might not have a room for a boy from three to 17, which is crazy.

You shouldn’t have one unit with patients of that age. It meant not having anybody watch the security cameras. And there’s like four or five other examples of things they weren’t doing. Every single one of them was profit driven. Get as many patients in as we can, put ’em in whatever beds. We can cut costs in every possible way we can. So nothing was about the safety of these kids. And that was an example. John, I forget one of the very first depos you took. I think it was when we found out, we didn’t know until the first depo you took. And I was listening in on the depo. The question you just asked Erich, which a lot of people would want to know, is what ages were these kids on this unit? I think the first time, John, you got the answer, it was three to 17. We didn’t believe it. We were like, that can’t,

John Simon:

You’re not going to put three year olds.

Tim Cronin:

That can be correct. But it was. And in fact, they told us four to 17 and at trial somebody told us for the first time, actually it’s three to 17, which is, I mean one of our experts, one of her primary things was this should be split up amongst three different age groups.

John Simon:

Well, first of all, she didn’t believe us.

Tim Cronin:

She was like, that can’t be true, that can’t be true. And she’s run multiple hospitals. And she said, this should be three different completely separated age groups, but like 11 and under, 12 to 14, 15 and up. I mean, you cannot. You can’t. And in our case, it was a 13-year-old who got raped by a 16-year-old and she’s like, they never should have been on the same unit.

Erich Vieth:

And it wasn’t just random people put on a wing. It was people there for what? Emotional and

Tim Cronin:

Psychiatric, severe emotional, behavioral and psychological problems. And then you’re putting three and four year olds next to the emotionally disturbed 17-year-old males who need to be protected, not just protect others from them, but protect them from themselves likely to do something like that. So that’s that case. And then John, you’ve had a few different auto fire

John Simon:

Cases. Yeah. One was an auto fire case where there was a vehicle that was T-boned at not a real high speed, and it burst into flames and two young people in the vehicle were burned to death. And we took the case and started with the discovery and our expert was very critical of the design. The tank wasn’t protected. And so again, we started digging. We asked about federal regulations, we asked about industry standards, and then we asked about internal standards. So

Tim Cronin:

Policies and

John Simon:

Procedures, policies and procedures. In other words, do you have any policies or procedures or internal testing standards for fires for post collision, fuel fed fires, crashworthiness on fire issues? But what we found out was that the model that we were dealing with was never tested. They did have that standard. They had a testing standard in-house that this particular model was never tested on. Well, we thought, wow, that’s great. How do you get any better than that? Well, we didn’t stop we with that, we went a little bit further and said, well, when did that standard come into play? How long has it been in effect? What other vehicles were tested for that standard? We found out the model before the model that we were dealing with, the model previous to the model that we had in our case was tested three times and it couldn’t pass that standard. So guess what they did? You guessed it. They quit testing it. So they had an internal standard that they had put in place like 15, 20 years earlier. They were testing their vehicles. It was a site impact standard. They were testing their vehicles for post collision fires and they were building them to pass that standard and they couldn’t get this one to pass it or the previous one, three times in a row failed. So they said, what the hell? We’re just not use it. We’re not going to test it anymore.

Tim Cronin:

I had a product case a couple of years ago about exploding toilet

John Simon:

Exploding toilet.

Tim Cronin:

I remember that. Yeah. So it was a power flush like on airplanes. And so there’s a pressure vessel in it. And similar to what you just said, the case ended up, it didn’t get tried. It got resolved between the parties, but we had a punitive claim that the judge was going to let us submit. And one of the important facts in that was just similar to what you said, John, they had internal standards at which they tested and they wanted to make sure the vessel did not rupture up to a certain pressure and they were failing it. So what did they do? They didn’t stop testing it. They changed the testing parameters. They just changed it. Lower the

John Simon:

Standards,

Tim Cronin:

Lowered the standard so they could pass it. They still failed it, and then they stopped testing it. They knew like, uhoh, this isn’t working. They changed the number, changed the number, and then they stopped testing

Erich Vieth:

This

Tim Cronin:

Testing

Erich Vieth:

Stuff’s getting in our way.

Tim Cronin:

Yeah,

Erich Vieth:

That has been the second of several episodes we’re going to present involving building your punitive damages cases. So we’re going to continue with more of these including specific examples regarding specific cases. But for now, this has been another episode of The Jury is Out. I’m Erich Fief.

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m

Erich Vieth:

John Simon.

John Simon:

We’ll see you next time.

Announcer:

The Jury is Out is brought to you by the Simon Law Firm at the Simon Law Firm pc. We believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 2 2 4 1 2 9 2 9. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim and Erich at comments at The Jury is Out law and subscribe today because the best lawyers never stop learning.

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