EP 605- Building Your Punitive Damages Case Part Three

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 Vieth.

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.

Erich Vieth:

We have a multi-part series of podcasts that we’re in the middle of at this point on punitive damages. And we’re in the middle of part one, which is building your punitive damage case. Just to let you know where we’re headed, the next part, and that’s going to come in future episodes, we’ll be presenting your punitive damage case at trial. And then part three, we will be discussing various cases handled by the Simon Law Firm that did involve punitive damages.

John Simon:

Yeah. In other words, taking these concepts and it’s one thing to do the discovery and gather the evidence and what to look for, what to ask for, where to find it. And then the next part very generally is, okay, what do you do with it? So back to the whole idea of, in the discovery stage of the case, developing evidence of punitive conduct. And one of the biggest sources of that conduct that I think a lot of times is overlooked is post-incident conduct. Yeah.

Tim Cronin:

I think there’s a misconception by not just attorneys, but by courts that you have to kind of help educate oftentimes, because we’re specialists in our particular area of the law and do research that’s particularly important for our particular cases. So you have to help educate judges is an assumption made that, well, what matters is knowledge and what matters is knowledge before this incident. So anything after that isn’t relative to punitives, and that’s not true.

John Simon:

Post-incident conduct, for instance, in Missouri is admissible in a punitive damage case. And why is that?

Tim Cronin:

Because it shows a pattern in course of conduct. It shows motive. And one of the main, well, the purpose for punitives is not just to punish, but to deter. And for the jury to decide what it takes to deter, it kind of matters if they’re still doing it.

John Simon:

Right. In other words, if you’re trying to stop the defendant from manufacturing a product that they know is defective, it’s injured or killed people. If they’re still making it, there’s been no changes to it afterwards. That’s something that’s relevant in terms of what it’s going to take to get them to change their course of conduct.

Tim Cronin:

And if there’s been a hundred incidents since your incident, a hundred more between the time of your trial and your incident, and they still haven’t pulled it off the shelves, that’s relevant to the fact that nothing is deterring them. The jury’s going to have to do something about it. And I think what really highlighted this is John, in a recent case of ours where we got a substantial punitive verdict, and this was in Illinois, the defendants were arguing to remit or get rid of the punitive award. And do you remember the first question that our judge asked the defense lawyer?

John Simon:

What was it?

Tim Cronin:

He said, “Have you changed anything since this verdict?” They reluctantly ultimately admitted that they had not changed anything and his honor made the point, couldn’t an argument be made that in fact the punitive award should be increased because you still haven’t been deterred. Now, he did not increase it and he actually remitted it, but his honor seemed to

John Simon:

Recognize. The court was made very effectively.

Tim Cronin:

Yeah. You still haven’t changed anything. Deterrence is the point.

John Simon:

So let’s talk about some examples. I want to go over some examples of post-incident conduct that we discovered in cases that turned out to be fairly helpful in supporting a punitive damage claim. We had a case, it was a crash case and it was actually a winery that a driver had ran through a stop sign and caused an accident and it was a serious injury and a death. And when we took the deposition of the driver, one of the things I always ask is, what did you do right after? Who did you call first? What did you do? Did you go back to work?

Did you call 911 or did you call your employer first? What was the first call? And so these are things I always ask after the incident, post-incident conduct. And a lot of people, some attorneys would say, “Well, how’s that relevant?” It’s not relevant to what caused the accident, but it certainly is relevant when you’re trying to build a punitive damage claim. And in that particular case, as I recall, the driver made several calls. We got the phone records from the scene and the first three or four calls were to his employer. And I think one of those was to the claims guy at the company. And then the next one was to his wife and he really didn’t get around to calling 911. Other folks had called 911. And again, that’s some indication of his mental state. State of mind. State of mind.

Tim Cronin:

Didn’t really seem to be concerned with the safety of whoever might be injured by his conduct.

John Simon:

Yeah. And then I went on to say, “Okay, you were at the scene for how long? Maybe a couple hours and where did you go from there?” And this had happened in the morning, as I recall. And believe it or not, he went back to work that day. After causing an accident, severely injuring one man and killing another, he went back to work. That speaks volumes, not just about him, but about his employer. I mean, imagine that your employee kills somebody on the job and you’re okay with him coming back to work to finish out the day? Well, it didn’t end at that. I asked him, “Okay, what did you do that night?” His answer was that he went to a birthday party in another town, was about 45 minutes away. He attended a family birthday party with his wife. So again, I guess depending on who’s listening or who’s hearing the evidence, you could look at those things a couple different ways, but I think some people might think that that’s a pretty calloused view of your own conduct.

Erich Vieth:

Was that all admissible at trial?

John Simon:

It was. And as a matter of fact, the judge that we had in that case right off the bat was like, “Well, wait a minute, that’s after the incident.” And we have a case or two highlighted in our back pocket that we handed the judge. And he was like, “Wow, I didn’t realize that. ” And it came in and-

Erich Vieth:

I’m trying to put on my defendant cap here and I’m thinking, well, that might pertain to his moral callousness as a human being, but that is not connected to the way he drove, for instance.

John Simon:

Well, I guess it has to do with punishment and deterrence also.

Tim Cronin:

What will it take to deter someone who

John Simon:

Doesn’t

Tim Cronin:

Even care that they hurt someone?

John Simon:

Right. I guess. I mean, I get your point, Eric. And that case that ended up getting settled, but at the pretrial, as I recall, the judge ruled that that evidence would come in. So any event, we had another one that I remember was another trucking accident, and it was a clear liability, no question, a clear liability case. And same thing. The driver made several calls, none of which were to the 911 to see who was hurt in the vehicle that he had rear ended. It was driving a tractor trailer. He finally called 911, and it was about the fifth or sixth call. And he called 911 and made a report that was completely contrary to how the accident happened. So he literally rear-ended a stopped vehicle. It was in stop traffic on an interstate highway without braking, probably going 50 to 60 miles an hour.

And no question, hit our client’s vehicle, pushed that vehicle into the next one. He wasn’t paying attention. He caused the crash, and then he called 911 and said, “Somebody pulled out in front of me.

Erich Vieth:

” So that’s pretty tenacious of your firm to go to get the … I assume you got this from 911. We

John Simon:

Did.

Erich Vieth:

Authorities. We did. So if you asked the guy, it might have been interesting to hear what he said before he got the actual tape, but you dug into that. I don’t know if a lot of people would think about going to the police, whatever the agency is that has those tapes and getting that. And did that come in in this case too?

John Simon:

Yes, it did. And it is coming in. The other thing too that happened in that case, and this has happened in trucking. If you got trucking cases, for sure, do this. The policies and procedures and every transportation company that I’ve had in a case, especially trucking companies, they have a manual and they have policies and procedures, and there’s a big section in there about what to do when there’s a crash. And nine times out of 10, it says don’t admit any responsibility. No

Tim Cronin:

Matter what.

John Simon:

No matter what, don’t admit responsibility. That’s a big deal too. And that comes in, it’s post-accident conduct. Comes in for credibility.

It comes in for credibility. It comes in for punitives. So always look for that. Some things too, some pretty simple things in any case, no matter what it is, if it’s a medical malpractice case or if it’s an auto case, a trucking case, I always ask if I’m taking the deposition of a corporate rep, especially if it’s a clear liability case, flat out ask, “Are you accepting any responsibility at all? Any at all for causing this crash?” And there’s no bad answer to that. And I think about half of the time, what do you think, Tim? Half of the time they kind of say no, which makes them look terrible. And the other half- I

Tim Cronin:

Mean, almost all the time it’s very clear they’re uncomfortable because they have been directed to not answer questions.

John Simon:

And then sometimes you’ll get, “Yeah, it was my fault,” which I think is the right thing. Or avoiding it

Tim Cronin:

And saying, “Well, they did this. ” I’m like, “No, no. I said, do you accept any?”

John Simon:

And I think too, from our friends on the defense side, that’s not so bad for you when that happens. When your guy comes in and fesses up and tells the truth, I think that’s a good thing for the defense. I really do. Any changes in policies and procedures, that’s another one. Since this accident, since this product malfunction- This

Tim Cronin:

Can apply to pretty much any type

John Simon:

Of case.

Tim Cronin:

You’re

John Simon:

Still doing things the same way. Did you

Tim Cronin:

Make any policies to address this if you didn’t have any before? No.

John Simon:

Or consider. I like the word consider. Consider. Did you even consider changing any policies as a result of what happened to our client? Never thought about or suggested any changes. Basically, are you still doing things the same way? Even though what happened happened, are you still doing it the same way? And boy, I think the vast majority of cases that I’ve been involved in, the answer is, yep, we’re just not going to change anything.

Erich Vieth:

Does it come in both ways? We did make a change or we didn’t make a change. It seems like if we did make a change, you would see a defendant arguing the subsequent remedial

Tim Cronin:

Measures. Some remedial measures, and then you get into the various exceptions. But yeah, if it’s, yes, we changed this, then you go, “Okay, well, what other parts didn’t you change anything?” And then you’d have to carve that part out. But if they did change something, then you’re going down the rabbit hole of exceptions to … And oftentimes control is one because if it’s a company, they might be trying to say like, “Well, there’s nothing we can do. ” Well, really? Well, you changed or created a policy afterwards specifically to address making sure your employees couldn’t do this.

John Simon:

Our feasibility. Feasibility. In a product case to show that if they did make a change in the design and then your follow-up questions could be, “Well, were these changes available to you? Was this design available 10 years ago? Was it economically feasible? Was it feasible from an engineering standpoint?” And I think all of those things can allow you to argue, well, they could have done this 10 years ago. They could have done this many years before our product was made, but they had other reasons, obviously, not wanting to do that. A couple others, and these aren’t necessarily post-incident at the scene kind of things, but I tend to ask questions, and maybe you save this for trial, not in a deposition, but I’ve done this at trial where whoever the defendant is, if it’s a design, if it’s a corporate representative of a company, if it’s the driver, and I tend to ask the corporate rep this question, and that is, “What do you know about my client’s injuries?” And typically, boy, they know all about their policies and procedures and how to fill out the accident form, and they have no idea about the nature and extent of injuries or devastation they’ve caused to your client and their family.

I

Erich Vieth:

Know you can take a corporate rep deposition and you can lock them down. And I’ve done that and I usually read it at trial if I’m going to use it at trial. Can you call a corporate rep witness at trial? Can you designate someone to bring a corporate rep that is compelled to be knowledgeable about various topics and sit and witness stand at trial? Well,

John Simon:

I think if they’re in the same state, you can subpoena the corporation, I would imagine.That’s

Tim Cronin:

A fight I’ve had several times in Missouri, Erich. And I think it depends on the state. I’ve had this argument particularly several times where the rule for a corporate rep specifically references that it’s for a depo.

And then if they bring that person or they’re in the state and you subpoena them, most of the time I haven’t had an issue with it where I call on the corporate rep, say, “You’re here, you’re on these topics, you gave a depo and nobody makes an objection.” But occasionally, and in a trial last fall, we had a huge fight about that where I was trying to say they were bound to answers that person was giving on the stand that were beyond what happened in the depo. And we had a huge fight and the court didn’t really resolve it. We just sort of moved on. I think it’s kind of an undecided question. But in some other states, I think that you can do so also at trial. Illinois has rule 237, I think it is, where you can call any officers, executives, employees of any party.

And I think it also allows you to require a rep on certain topics and documents. So Missouri not quite decided, and then I think it’s just state by state.

John Simon:

So another thing too that’s kind of interesting is you can ask about your client’s injuries to the corporate rep at trial. And one of the things we did recently in a case last year is we asked the corporate rep, actually my son Johnny did this. It was a death case and we were representing the parents of a young woman who was killed and he asked the corporate rep at a really, I thought a very appropriate time, “What’s the young lady who died? My client’s daughter, what’s her name?” And he didn’t know. And he was the CEO of the company that we had sued. And eventually the jury held his company responsible, but it was a very impactful moment in the trial and it was just a simple, “Do you know our name?”

Tim Cronin:

Tell us this. This would fall under John Simon’s two essential rules of what to accomplish in working up and proving your case. Make the defendant look bad, make the

John Simon:

Claim- Well, make your client look good. And look, everything we say here cuts both ways. So again, our friends on the defense side, they do a very, very good job of exactly trying to commit the opposite, making your client look bad from anything from A to Z, whether you think it’s relevant or not, and it may or may not be.

Erich Vieth:

It kind of runs counter to rules of the road where you’re trying to get things specific. Negligence is too general, and so you want to boil it down to a principle that the jury can understand. It’s more vivid, and this is like they’re bad. It’s a very broad principle on punitives.

John Simon:

We did several episodes on persuasion. This to me is, it was like a light bulb going off as a young lawyer when this first dawned on me as I was watching a very good at a lawyer put a case on cross-examining witnesses. And all of the rules of the road and those things and the jury instructions, that’s the law, that’s the logic. You need your mind and your heart, mind and your heart. And you guys know my view, in courtrooms, a lot of times two and two doesn’t equal four. Two and two can be zero and two and two can be 16. People decide cases based on their emotions, pure and simple. There’s not a decision that’s made in any of our lives that is purely based on logic or reason. Think about everything that we do. When we buy a house, when we buy a car, when we buy a coat, a suit, who you marry, who you ask out on a date, none of those are driven primarily in my view, by rational, logical thought.

It’s all emotion. And if anybody’s trying a case and that’s not ingrained in their head, if they don’t understand that the jury will decide the case somewhat on the facts, but mostly on what emotions are invoked by those facts, you’re doing your client a disservice.

Tim Cronin:

I think of it this way. The rules of the road, you’re trying to kind of draw a line in the sand to make it simple for the jury. The speed limit is 55, you’re over it or you’re below it. And that really is to help those who want to find for you argue for you on simple terms with everybody else in deliberations. The other stuff we’re talking about is providing motivation to get those jurors to want it to fall on one side of the line or the other.

John Simon:

Yeah. And what was the cartoon, the metaphor of the trainer with the elephant? Yeah,

Erich Vieth:

The elephant and the rider.

John Simon:

The elephant and the rider. The big emotional- Who is that?

Erich Vieth:

Jonathan Hite.

John Simon:

Jonathan Hite. Yes. Tell us about that, Erich.

Erich Vieth:

We like to think, and this has gone back thousands of years, that we like to think we’re rational beings. A lot of philosophers and psychologists think we should be rational. Economists all agree that we are rational beings and it just doesn’t fit the mold. So Hite was reacting to that and he’s done a lot of research. He didn’t just come up with a fun metaphor, but his research bears out that we are basically emotional beings or emotional/intuitive, he would call it. And that would be the elephant. That’s the motivating part of our existence is a big emotional, intuitive elephant. And the writer does exist. We do have rational thoughts about go this way, go that way. Sometimes you want to go to the left, but the elephant wants to go to the right. Classic case is many addictions. Someone wants to stop drinking, but they keep reaching for the drink.

That’d be a classic case, but it happens in all aspects of life too. Just like you said, John, unless you’re sitting there doing math problems, everything is imbued with emotion. So that elephant doesn’t go the right way quite often.

John Simon:

There’s a trainer on the top.

Erich Vieth:

The trainer’s on the top whispering. It’s directing the elephant. Whispering in the ear trying to get it to go one way or the other. And sometimes you can do it, but you got to honor the elephant. You got to take the elephant where it is.

John Simon:

Or another way to look at it is that elephant’s following directions until it gets angry or scared or upset and the right of the trainer at that point is just along for the ride.

Erich Vieth:

That would be it. And it’s hard to settle that elephant back down.

John Simon:

So the next thing we want to talk about here is the next thing we want to talk about is you’ve developed this evidence during discovery. It’s powerful. It’ll allow you maybe to submit on punitive damages. Even if you don’t get to submit on punitives, it certainly makes your case a lot stronger. It enhances the value of the case. How do you frame it, Tim? What are some things you can do to look at the conduct and come up with a frame for your case?

Tim Cronin:

I think you need to really try to think deeply and figure out what the actual motivation of the defendant is that explains why they did what they did. And you need to think about it in terms of very, very basic visceral concepts that people get angry about. And so there’s different versions of the first one that comes to my mind, but the first one that comes to my mind is greed. And then there’s different versions of how you frame that underneath that, right? Like profits over people or profits over safety or poisoning people for profit, which is one I think you and Johnny did specifically in a recent case. And then you kind of talk about that as opposed to the dichotomy of greed versus protection. So you have companies, doctors, whoever have various responsibilities to protect the public with

John Simon:

Regards to what we do. And what was the one you used one in the Toner case last year?

Tim Cronin:

Paid to protect profit from neglect. And I didn’t come up with that one. I stole it from another lawyer who had tried a similar case. Very good lawyer. And as soon we had a call with him before that case and we said, “What’s your theme?” And then he told us that and it just stunned me that that’s exactly what our case was about. Paid to protect. That’s what you get money for, to protect these kids with mental health problems. And then you’re not staffing it properly and you’re filling the beds as much as you can. You’re profiting from neglect. And that’s greed and people get angry in the right circumstances about greed. You guys had a phrase with regards to changing the regulations, right?

John Simon:

Right. We had a case where our evidence was that the company that we sued, it was a product case that they had followed. Their defense was we followed the standard, the federal minimum standard and the case became about, well, okay, is that a good standard? Is it a minimum standard? Is it safe? But more importantly, how did it come to be? And the evidence demonstrated that the entire industry fought any changes in the standard for 45 years. And the overwhelming scientific evidence, the government agencies, safety organizations had all fought very hard. They even had Senate hearings trying to enhance the standard, and it got beaten back every time by the industry.

Tim Cronin:

So it’s corruption

John Simon:

In combination with

Tim Cronin:

Greed.

John Simon:

And so we ended up framing it as 45 years of conscious disregard for safety. And it wasn’t even actually, that’s sort of a weak frame for it because it wasn’t consciously disregarding. It was 45 years of-

Tim Cronin:

Actively fighting

John Simon:

Against- Actively fighting against it.

Tim Cronin:

I mean, they’re spending money on changing regulations to lower the bar and make them less safe instead of spending money to make their product safer. And look, in almost everyone, you want to try to find a profit motive. Their job for most companies is to try to make money. And at the heart of a lot of the decisions, you kind of want to try to point out that they’re trying to make money and with no regard to the effect on people. But betrayal is very, very powerful,

Which that can mean lies that were told in the course of what happened or in the course of the litigation. But another, we incorporated that theme in toner too, and I think we do in a lot of cases. And a good way to show that is companies all have websites now, right? And they have marketing materials and they all want to be outward facingly project an image of being a safe company. So what you try to do is show what they promise on their website or in documents they have patients sign in terms of safety and how they’re trying to protect people and then put that up against what they actually do in practice. And so they’re betraying your trust. Indifference, I think is a good theme. Accountability can be a good theme. Arrogance, I think in med mal cases.

John Simon:

No shortage of that in

Tim Cronin:

Med mal cases. No. In med mal cases, that’s oftentimes that might be your most effective theme because it’s hard to show for a particular doctor a profit motive, right? So arrogance may be a good theme.

John Simon:

So Tim, I got to interrupt you just for a second. I thought I was in court yesterday and I walked into the courthouse. I got there early. The hearing was at 9:00 and I got there about 8:15 as usual. And I saw one of the bailiffs that I know and he was in the hallway. There wasn’t anybody out there and he’s leaning on the podium. And I didn’t remember the last case that I tried in front of him. And he said, “Good morning, Mr. Simon.” And went over to him and I started talking to him and he reminded me it was a med mal case and he just happened to tell me, and this was a year ago or so, two years ago that I tried it. And he said, “Yeah, I remember when you sat down after you completed your voir dire, the other lawyer stood up and said, Mr. Simon wants doctors to be perfect.

He’s saying every doctor should be perfect. Now, who here thinks that doctors need to be perfect? And he said, I didn’t answer, but I sure as hell was thinking if they’re operating on me, I want to be.

Tim Cronin:

I’m a doctor. No, I’ve pretty much run through them. Maybe conspiracy, but you got to have the right set of facts. What happened, their conduct in causing an injury may not rise to punitives, but if they’re trying to cover it up, it shows that they have no regard for whether that conduct can cause injury. Yeah.

Erich Vieth:

Or trying to lie, which is similar to that. We had a couple podcasts with Mark Mandell who wrote the book on framing and I’m channeling a lot of his ideas here, but he would divide the frame from the content. So the content is all your basket of evidence, but you need to present it in some way that the jury remembers it. And he said it takes a lot of work to get to that frame, but if you do a good job of boiling it down, you might locate a frame that he calls and I just can’t get over it issue. It just sticks and the jury can’t stop thinking about that issue. So he offers a number of frames. And I think, Tim, you covered a number of these, but I’ll just run through some of more of his, because these are some commonly occurring frames.

Wrongful accusation, rush to judgment, know your limits, speed kills, assembly line medicine, cover up. That’s what Tim just said. System failure, improper or inadequate policies, training, supervision, investigation, discipline. Of course, profits over safety. Who had control? Need for preparation? Personal responsibility. Defendant cared about the wrong things. A loving mother would never do that. Turning a blind eye, abuse of power, do your job, the value of a handshake, betrayal, better safe than sorry. And he goes on, there’s more, but it’s a wonderful read. And if anyone’s interested in knowing more, Mark Mandel was on the podcast at least two episodes. This is probably two years

John Simon:

Ago. And he’s got a couple books out that are just fantastic. I would recommend buying them and read them. We’re almost to the end of developing, building, building, developing the evidence to build a punitive damage case. And before we end on that, one of the things that I think this kind of flows over into is case selection and evaluation. And what I mean by that is, sometimes we look at a case and somebody comes in and they say, “Well, should we take this case or what is this case worth?” And I just hate it when they start out with, “Well, here are the medical bills and these were the injuries.” Because that’s not how I evaluate a case. I evaluate a case primarily on what did the defendant do? What was the conduct? Who was the defendant and what did they do is sort of where I start.

And you also need to include in that, who’s your client? Who’s the plaintiff? And are they likable people? Is it somebody that the jury’s going to relate to? You might have a case where it’s a minor injury, somebody broke their arm or even a soft tissue case, but if you’ve got a defendant driver who’s driving 60 miles an hour through a school zone, it changes the whole parameter of that case. It’s not just the way you look at it, but the way a jury is going to look at it and probably the way an insurance adjuster’s going to look at it.

Erich Vieth:

I keep thinking about you listening to a client’s case before you’ve decided to take the case and then what we just talked about with the motion. This is your one and only chance to hear it fresh from somebody and react to it yourself. And if that doesn’t work, I guess that’s a big strike against

John Simon:

Taking the case. You talk about emotion. I mean, when I meet with a client, and it’s funny, you work on the case for a year and a half, two years, whatever, and it comes full circle. When you’re sitting down the night before voir dire, before the trial’s going to start, it comes right back to why you took the case in the first place. What did you hear that first time in that first meeting that compelled you to take the case? And I have taken cases that maybe logically and rationally I should have thought a little better about it, but what compelled me almost always is I just fall in love with the client. I like the client, what they went through, and you just make a connection with them. And I used to think that that was some kind of fault or something I needed to be more objective, but in hindsight, that’s the same thing that’s going to happen when they’re in front of the jury.

It’s really the right way to evaluate a case. If somebody is a good, honest person and a horrible, bad thing happened to them, you know,

Tim Cronin:

Occasionally find your way through some theory of

John Simon:

Liability. But you know what? Let me put it this way. I’m trying real hard. I want to help them. It’s me. You wanting to help that person is as good a way to evaluate that case as anything because if that’s your first impression of your client, that it’s something bad happened to somebody good and you want to try to get them compensation for it or help them, that’s your case. That’s exhibit one for you is your client.

Tim Cronin:

Yeah. But that can’t always exist. So when that doesn’t exist, I think usually what I’m looking for is, is there something I heard in the meeting, the first meeting with the client where even if I’m like, they’re a little rough, that doesn’t mean they don’t deserve justice. Is there something I heard in that meeting where I heard it and I went, wait a minute, they did what? And you need one of those if you don’t have a client that the jury’s going to love. Yeah.

Erich Vieth:

This concludes our session on building your punitive damages case. Before trial, we’re going to be back next time with more on building your case for punitive damages, turning to presenting your evidence at trial. So this is another episode of The Jury Is Out. I’m Eric Vieth. I’m Tim Cronin.

John Simon:

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

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