EP 624- Working Up A Big Win Part 1

Episode Notes

Transcript

Announcer (00:01)
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 (00:19)
you

to another episode of The Jury is Out. This is Tim Cronin, and I am delighted to welcome Kevin Carnie and Pat McPhail, two of our colleague attorneys here at the Simon Law Firm. I’ve worked closely with them for a number of years. So Kevin and Pat, welcome. Thanks. Can you guys just kind of talk a little bit about yourselves and your practice? You work together on pretty much all your cases together, just kind of, you know, what your practice is like. Yours is pretty diverse, a lot more diverse than some of our other groups.

Pat McPhail (00:37)
Thank you for having us.

Kevin Carnie (00:52)
It is. ⁓ So, I mean, we have handled everything from ⁓ business litigation cases ⁓ to civil rights cases and everything in between a lot of product liability, medical malpractice, ⁓ just your generic personal injury cases. ⁓ Really not limited.

Pat McPhail (01:13)
Basically,

if somebody has hurt you, come to us. That is what we have.

Tim Cronin (01:18)
Kevin, I’ve heard you describe it as like, ⁓ does someone have money? Do you want some of the money? But we have some of it if we win.

Kevin Carnie (01:26)
Well, I’m good.

Pat McPhail (01:27)
and get

Kevin Carnie (01:31)
That’s a good way to evaluate a case. I

mean, with any case, I I feel like we have the background to handle cases of a wide variety of different kinds of cases. And so what really matters when we’re evaluating cases is, number one, obviously, we’re looking at can we win the case? Number two, is there money that we can get? I mean, we work on contingency fees.

Tim Cronin (01:51)
Yeah, is that mirrored?

Kevin Carnie (01:58)
If the money’s not collectible or the case isn’t valuable enough, that’s a big thing. But really, that is a great way to describe it. If somebody’s been harmed, whether it’s through personal injury, whether it’s through a business loss, whether it’s through fraud, as long as the amount of money at stake is high enough and there’s merit to the case, it can sometimes be something that works for our model.

Tim Cronin (02:20)
So what I wanted to talk to you guys about today is a recent explosive verdict you obtained in a commercial case, because a lot of people in our own legal community, think, may not know we do actually handle fairly regularly commercial cases in addition to personal injury. And you guys specifically have handled successfully a number of commercial cases. to start, can you give our listeners a quick overview of what the case

what the case was about and what was at stake.

Kevin Carnie (02:51)
Sure. ⁓ I’ll kick it off and then Pat, you can kind of jump in. So we represented an asphalt company called Gleason Asphalt, just a small family-owned business here in the Metro East. And so they do asphalt projects over on this side of the river in Missouri, but also on their side of the river in Illinois. And they have been doing that for many years. It’s a family-owned business and they go out, they bid on doing parking lots, essentially.

Tim Cronin (03:03)
Over in the Metro.

Kevin Carnie (03:21)
on various construction projects and they go lay the asphalt down. And this was a situation where they had purchased what’s known in the industry as base rock from a quarry here in the St. Louis area that was formerly operated by a company called Lafarge. And the base rock that they purchased turned out that it was misrepresented to them what it actually was and that it

Yeah, it didn’t meet the specs that they needed for the quality of rock that would be required on the particular jobs that they were working on. ⁓ And also it just generally wasn’t suitable for being placed under asphalt. That led to failures of the asphalt ⁓ on at least two projects that they had used that base rock on. ⁓

Tim Cronin (03:52)
type rock.

They have to redo the project.

Kevin Carnie (04:16)
Which

then required them to come in, redo the project, spend a ton of money on that and harm their reputation. It also ⁓ kept them from actually doing work where they could make money. So that’s the short version of the story. And then they came to us and we helped them out, worked on the case for quite a while and ended up trying it. I think it was just a few months ago in May.

Tim Cronin (04:21)
So.

Pat McPhail (04:42)
Yeah, I mean, that was that was the story that we were told when first came in the door. And that was really what it turned out to be. It turns out that they the defendant knew what they were doing and was intentionally misleading their customers through their name.

Tim Cronin (04:57)
So what was it? it one cause of action? Multiple? It sounds like it was a it was a fraud case.

Kevin Carnie (05:03)
It was multiple causes of action. mean, we had a negligence cause of action, a fraud cause of action.

Pat McPhail (05:09)
UCC claims. So the uniform commercial code allowed us to bring a few different claims. So we had six in total.

Tim Cronin (05:16)
And then I think like a lot of the cases we we get in here, the case was actually referred to us and it was referred. It was referred to us to you, Kevin, by an attorney we work with all the time. We sent him cases. He sends us cases. Tom Keefe over on the other side of the river. And that’s how it came in the door.

Kevin Carnie (05:33)
Right,

right, right. The case comes in the door and you hear the facts of it. But Pat’s right. What really changed it was the work that went in to really uncover the depth of the fraud. It was diving into all the records, making them turn over all the records that were indicative that this had been going on a long time and they knew it was. You know, because it was tried to be passed off as just, well, it’s an honest mistake, confusion. know, we don’t really sell that rock. You know, everybody knows we don’t sell that kind of rock.

⁓ which we can get into a little bit more, the naming of the rock was pretty interesting.

Tim Cronin (06:09)
So in the discovery process, what were, were there, what’s like some of the biggest challenges you faced, if any, I mean, how did, to take us through kind of Pat, how you, how you, you spent a lot of the effort working up the case, kind of take us through how you work the case up.

Pat McPhail (06:23)
The first difficulty

was just getting any answers. We filed a motion to compel just to get the initial answers to discovery.

Tim Cronin (06:33)
Lafarge is a very, very large company, right?

Pat McPhail (06:36)
So

it’s it’s a multi-billion dollar operation. They they operate across the globe. Even just the North America version, you know, the North America subsidiary is worth tens of billions of dollars. So it’s a huge company. And Discovery was the first time that we noticed that they just did not take it seriously. don’t have to answer any questions.

Tim Cronin (06:58)
to answer your questions.

Kevin Carnie (07:02)
Yeah

Pat McPhail (07:03)
It wasn’t it wasn’t just that they were objecting to everything. The first thing was that they just didn’t answer.

Kevin Carnie (07:09)
They just didn’t seem to take it seriously from day one.

Tim Cronin (07:12)
And I get like a real David verse Goliath story like a real small town family run business versus a huge multi million built a billion dollar company and they’re like bad. Esky lawsuit.

Pat McPhail (07:23)
Forget about it.

Right. So that I mean, that was the first challenge. You know, we we got the initial discovery identifying a few of the actors in this, salespeople, the quality control people. So that’s where, you know, we started discovery, taking those depositions. One, you know, these things usually happen. You take the depositions of enough people, especially the defendants. You learn what more you need to ask for in discovery.

So we learned that there was testing that went back years and years that had not been turned over to us. fighting for that, we eventually got the testing that showed that these guys just were never able to make the quality of rock that they were passing off to their customers. ⁓

Moving on from from that point, it was just a matter of basically what Kevin has taught me how to work a case up since I’ve been a lawyer. My first trial like a weekend being a lawyer. One of the most important parts of it is you play the admissions from the defense that makes your case before you even start your case. That’s the best way to do it. So you have to learn to do that during discovery, work it up, get those admissions. In this case, it was simply.

You know, Kevin talked about it earlier, the naming of this product was called…

Tim Cronin (08:46)
Tell me about that. And so how did they try to play off? was they were supposed to get type five rock. That’s what they needed. Right.

Pat McPhail (08:53)
So

base rock for asphalt for parking lots, roads, base rock in Missouri is called type five rock. It is basically the gradation of the rock. How much of the rock passes through what they call sieves. But essentially it has to have a percentage of the material that will pass through different size sieves. Long story short, it’s just the biggest portion of this is that you can’t have too much fines. They’re called dust. There’s like dust.

sand, things that go through the final sieve because that stuff gets washed away, certainly under asphalt. It will degrade over time, make your asphalt not supported. It cracks and ruts, eventually, you know, it just fails. So in Missouri, there is a name for it. Every state, you know, comes up with their own gradation requirements for base rock. Missouri calls it type five. So what the defendant was calling their rock was

Type 5 commercial and that’s all great because you know our company and the two projects that issue here they were commercial projects and they needed Type 5 Rock for it. So there was nothing about the name of the product that in any way indicated it was anything other than Type 5. And I think to the very end we were never able to get an answer to the question of what did you mean by Type 5 Rock if it wasn’t Type 5.

Tim Cronin (10:20)
pretty pertinent question. Because they ultimately admitted it wasn’t actually type 5 rock.

Pat McPhail (10:22)
It was never answered for us.

Ultimately, what they said was that they could not make the gradation requirements for type five. They knew they couldn’t. They hadn’t been able to for decades. At one point, maybe they did as far back as like 1988, but that was as far back as they could do it.

Kevin Carnie (10:42)
So they said, our rock is type five commercial, which is not the same as the Modot type five certified. ⁓ So that was the rub that that was us saying to them, well, what is type five commercial? Why do you call it type five? Like, what isn’t I think actually to the salesperson on the stand, I think I asked her like, you know, don’t you think it might be less confusing if you called it something else if it’s not actually

Tim Cronin (11:00)
Are you calling it?

Kevin Carnie (11:12)
like the type five that everybody knows about. And I think she agreed that that would be less confusing. ⁓ Right. ⁓ I mean, and basically the line of questioning was, so you call it type five commercial, and what you want people to think is that…

Tim Cronin (11:18)
or intentionally misleading. One might argue.

Kevin Carnie (11:36)
the word commercial, so you call it type five, but then the word commercial, you want them to think it’s not type five. Means it’s not So it’s type five, not type five.

Tim Cronin (11:43)
Even though type 5 is for commercial use.

Kevin Carnie (11:47)
It

is, it is, it certainly is.

Tim Cronin (11:49)
Were there any like turning points in discovery where you’ve and Pat, you did a lot of the workup of the case as I understand it, right? A lot of the depots. Any like turning points or aha moments in discovery where you felt the case started shifting? Well, I mean, you felt good about the case where you really felt like this might be something that could be explosive at trial or they’re, you know, they’re in real trouble here.

Kevin Carnie (11:57)
Yeah, he did.

Tim Cronin (12:17)
Like a particular admission or some document you got.

Pat McPhail (12:20)
⁓

Trial is always what you make of it, but certainly in discovery, once you get admissions that what you are claiming the defendant actually did, and you have them admitting it, that is whenever you know, okay, we can go and ring the bell in this case if we do it right. The corporate representative depots that we took,

Tim Cronin (12:42)
Did you start around the edges with individuals and then get moved to the corporate rep or take corporate rep early?

Pat McPhail (12:47)
So

the way that I do it is you start around the edges. So I took the sales people, I took the quality control people, I took the, even the regional manager of sales to kind of, to help myself ⁓ narrow down what I need to get from the corporate rep. Because those depots, if you take a two, three hour depot and you’re trying to discover things, you’re not really able to take advantage of that at trial by playing admissions because then the other, they can drown it out.

Tim Cronin (13:14)
They’ll drown it out.

Pat McPhail (13:17)
So you have to know what you want from any depot, but you certainly have to know what you want if you’re going to be able to take advantage of it at trial. you take discovery depots like that for a reason to try to ferret out what really happened. And then you can, you use that information, you notice up your topics very specifically for the corporate reps, and then you get your admissions. And that’s exactly what we did here. They even produced some of the same witnesses that I had already taken in their individual capacities.

as their corporate rep and they went way differently because the purpose of the deposition was way different.

Tim Cronin (13:54)
You know, sometimes a lot of cases I do the same where I’ll start around the edges with people involved and then I’ll narrow my topics down and know exactly what I want to get in the corporate rep. If I get the impression early in the case that the other side isn’t really understanding what, like they’re not getting it and don’t have their hand wrapped around it, sometimes I’ll take the corporate rep like first after my client’s depo and I’ll get admissions because it seems clear to me that the corporate rep isn’t really going to be prepped.

on the stuff that I’m going to try to get admissions about. And it’s like, then they can’t back out of it with even if they may try with other witnesses later, but.

Pat McPhail (14:33)
And that could be helpful if you know if you know everything that you want want to do. And certainly you can you can know what your cause of action is. You know what your your individual elements of your claims are. But in a case like this, where they’re where we are uncovering more and more of their knowledge, that the actual punitive damage evidence.

That’s something that didn’t happen in the case until after we’ve taken some depots, gotten more discovery, figured out what we didn’t have, forced them to give over more information about what we didn’t have. And then we were able to formulate the right questions. And this time they were not prepared to dodge the question because they just always believed that everyone would think, OK, well, I’ll be believed.

Tim Cronin (15:22)
It’s okay that we’re calling this thing something that it clearly isn’t. ⁓

Kevin Carnie (15:31)
People on the front lines seem to think it was okay because they put the word commercial in it. That would mean it’s not type five.

Tim Cronin (15:37)
Commercial cases can be, I mean, look, we do, you guys do product liability cases. I do too. And you do MedMal cases just like we do. And there’s a lot of records and product cases. There’s tons of records. Commercial cases particularly can be really, really document heavy. Was that the case here? I mean, it’s a pretty simple issue. Did you have to wade through a million documents or was it?

Pat McPhail (15:58)
No, we did not. I am certain like any other case that there was more out there that was either not turned over and not looked for from the other side. But what we had was enough. The communications in cases like this are usually really important because we’re talking about what their intent was and defrauding customers. so you definitely want to pay special attention to emails and…

you know, internal communications about their testing. And they just, you know, they didn’t have a whole lot of that back and forth that they gave to us.

Kevin Carnie (16:35)
Yeah, that they gave to us.

But it was really light, their production on emails and communications that I don’t remember a single one we actually used.

Pat McPhail (16:49)
There, it’s, you gotta take advantage of that.

Tim Cronin (16:52)
where

there are lot of internal documents you were using in trial.

Pat McPhail (16:55)
their test results were huge. some things that you, the good thing about this is that you get to kind of craft your own narrative whenever you don’t have what their statements are in the emails. So ⁓ we got to craft our narrative that they knew exactly what they were doing the whole time and that this was fraud. that, I mean, it appeared to be that way even by their own admissions, but certainly they didn’t have a chance to walk it back by pointing to any emails or communication.

Tim Cronin (17:22)
And then you can paint it like, and we don’t have any emails. Couldn’t find them.

Kevin Carnie (17:30)
Or the complaint tracker that didn’t exist prior to after our client.

Tim Cronin (17:36)
Juries

really don’t like it when they think somebody’s hiding stuff from them.

Pat McPhail (17:40)
That was a fun as they should.

That was a fun moment at trial. And there’s always something that comes up in trial where you’re where you’re like, well, that’s new. And it’s always good whenever it’s. ⁓ So they they gave us a complaint tracker of all their complaints about their rock. And it only it started with our customers, our our clients complaint, which was 20 years after they’ve been.

Tim Cronin (17:49)
Did you come up with that?

Pat McPhail (18:06)
calling this thing type five. So that’s when it started. And so whenever I had the corporate rep on the stand at trial, I was asking him about, well, you didn’t, you why’d you get rid of those complaints from before? And he was like, we just we didn’t like go and throw them in the trash. We just never wrote them down at all. And that, you know, that’s one that’s one of those things where it certainly looks even worse when I think it’s an off the cuff statement that maybe we wasn’t prepared to.

Tim Cronin (18:33)
You don’t want to create a paper trail. see, sir.

Pat McPhail (18:36)
So the answer to the complaints was just simply that they just never wrote them down. And so that’s another one where we get to control the narrative on it. Because if you know, no matter what the complaints were, I’m sure people’s minds, you know, are easy to run wild. I’m sure it was worse in people’s heads that, you know, whatever the complaints were, they were so bad. They’re musty. Yeah, could have been any.

Tim Cronin (18:57)
than a billion.

I have to ask because I remember when you guys were in trial, you were talking to me about what was going on and we’re going to talk about the trial in the next session. But was, were there any like crazy moments in depots? I don’t know. Maybe if something that was asked or said to one of your clients or an employee, anything like that, like you’re never going to win. Anything like that happen guys?

Pat McPhail (19:26)
Well, there was a moment with one of our client’s employees that was contentious, so opposing counsel was taking the depositions of our employees and got a little angry and told our employee that his client is pissed off about the claims being made against them that…

They’re pissed off about being sued for fraud and sued for punitive damages, which we would never get.

Tim Cronin (20:01)
quote, which you’re never gonna get, end quote, right?

Pat McPhail (20:05)
And the I’m sure that’s an outburst that he probably regretted before now, but certainly now after after trial that one has a special special meaning but it was it was it was a contentious deposition and over time. I mean, this is one of the like a lot of cases we develop a better relationship with with opposing counsel even the more that you work with them. ⁓ It just didn’t start off real well. Yeah.

Tim Cronin (20:33)
Yeah, well,

we and we all have our weak moments sometimes depots can get heated and you don’t think somebody’s answered questions and you’re both your clients are angry at the other side and their clients are angry at you but usually don’t try to make a statement like you’re never going to win. I try to those.

Kevin Carnie (20:52)
No, I think it’s just a good reminder for all of us to understand that everything in those depositions is being recorded and it might come back and haunt you.

Tim Cronin (21:03)
So

we’re going to take a break here and we’re going to come back next time to then focus on how the trial played out. Kevin and Pat, thank you for joining us and thank you for agreeing to come back next time. This has been another episode of The Jury is Out. I’m Tim Cronin. We’ll see you next time.

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