SNOW WHITE
THAT BRIGHT AUTUMN DAY
Early morning on a bright colorful autumn day, Marilyn sat in her idling Pontiac Grand Am. She first looked to her left toward the top of the hill more than 600 feet away. Not seeing or hearing another car coming she turned and looked up the hill on her right and listened for nearby traffic there, too.
She did not see or hear any, so she moved out, turning left onto SR44, the two lane State Road Smithtown , going to high school.
Marilyn did not make it. Many months after the collision, I was seated beside her parents looking at her. Marilyn was as pretty as Marilyn Monroe was, the “eye-candy” that every man in the room admired. Instead of wavy blonde hair, she had short black hair and bright red lipstick emphasizing her teeth. She sat at the left end of a table; her parents were seated behind her, leaning forward against the courtroom railing. The family’s lawyer was at her right side. Marilyn was gazing around randomly, as if she was Snow White playing with the seven dwarves in the Disney movie. The image was enhanced by the bold red and black colors of her outfit, even down to the shiny black slippers on her feet. Occasionally her mother leaned forward and shushed Marilyn. On this day, Marilyn and her parents were on one side of a courtroom. They were here as plaintiffs in this lawsuit with an attorney, Roger Abrams. The defendant, the Peter Piper Potato Chip company, was the employer of Jason Jones, the driver of the truck that hit the car Marilyn was driving. Their group of lawyers and company executives were seated at their table, across the aisle from us.
“All rise”, shouted the bailiff as Judge Grimm bustled to his perch above the rest of us. Oh, good, Grimm is the sort of young fellow who would be able to follow along with technical descriptions, I mused. Selecting and seating the jury was not at all controversial because everyone was a local resident of the county nearly 300 miles from the hometown of Marilyn. Attorneys for both sides made an opening statement to the jurors. These were simplified arguments describing what the case was about. Abrams told the jurors that the cop who said that Marilyn did a stupid thing to get hit - was wrong. It was not her fault.
The defendant’s lawyer said, no, the police officer was not wrong – he was an experienced officer who saw the car and the truck. He used more time explaining that this trial is a common attempt to get money from a wealthy company with the help of a group of nice people sympathetic to an attractive victim – you, the jurors.
Putting on his case first, as usual, Abrams defined the Smithers’ complaint in more detail. He called a doctor to tell the jury about the extent of the crash injuries to Marilyn. Everyone in the courtroom cringed as the doctor spoke about her. Her mother and father sat hunched over grimly paying attention. Marilyn was sitting calmly at the table with her lawyer and she simply gazed around oblivious to the awfulness of the words. I still feel sick knowing she didn’t understand what these men were saying about her.
Roger Abrams questioned Doctor Jack Arnold, who read the particulars from the document handed to him. Slowly the doctor read the ambulance report and then read reports from the hospital Emergency Room. He paused to explain to the jury the meaning of some of the medical terms. Closed head injury is a generic term that applies to the injuries that often result in the decline of sports boxers after too many knockouts. Arnold
“No,” the doctor continued. “That tough guy would wake up in a hospital wondering what happened – unable to recall being hit from behind.”
Another pause. Then Doctor Arnold looked at Marilyn and said, “Miss Smithers still doesn’t know what happened. Her parents have explained it many times, but Marilyn still cannot recall anything about it. Her physical wounds have healed, but not her memory”
Following the testimony of Doctor Arnold, the medical expert, the jury squirmed as the next expert witness began. Doctor Roger Williams, Ph.D., an expert on brain injuries, still seemed uncomfortable saying what he must. He looked at me, sitting behind and to the right of the table where Marilyn and her mother and father were sitting. He began to tell a story that made everyone in the room feel as badly as he did. Williams could not look at Marilyn or her parents. It hurt him to say these things in their presence but he knew that it was vital that the court hear all of it. That young woman now had the intellectual capacity of a six-year-old child. “Yes”, he said, “It is ironic that Marilyn is as pretty as the Snow White character. She wasn’t in a coma––but close. However, no Prince Charming would kiss this sleeping beauty to make her become fully awake. She would probably not get married or attend college. She would always require care at home or in an institution. When her parents would not be able to do it, she would probably end her life in a “home”.
The doctor went on with the details. Most of the listeners would not understand them but they did understand that Marilyn was brain-damaged. Who could believe that this girl was almost an empty shell, with her life in ruins, with no visible injuries or broken bones? Some men in the room were saying it was her fault, but Marilyn didn’t worry about that. Her parents did. Why? That is the reason why I was there in a courtroom with others from my firm called CSI. A Crash Scene Investigator is very much like a Crime Scene Investigator. All of us have technical backgrounds with specific training to find what really did happen during serious collisions of motor vehicles. Marilyn cannot speak for herself. The only eyewitness was a dubious character whose word cannot be trusted. He was not even here to testify against her. It didn’t matter. Even if there were a dozen witnesses to this car crash at a rural intersection, none of them would know what really went on. I knew. We, from CSI, needed to convince the jury that we did know what happened. We have impartial evidence. Physical evidence will always beat eye witness accounts. However, I had to wait for some other testimony to establish the background.
COMA
The doctor took his time to educate the jury. They saw a pretty19-year-old girl who seemed to be happy and healthy. Why are Marilyn’s parents suing for millions of dollars to pay for her care? Dr. Williams picked up a plastic model of a skull. He held it as if it was facing the jury. Then he separated the halves at the split in the middle and laid down one half. Now he turned the half-skull side toward the jury so they could see a spongy model of the brain within. The brain was suspended at the top by a short rubber band, allowing the mass to jiggle within the skull. As the brain jiggled, Williams told the folks that there is a network of blood vessels that feed the brain from all points around its surface. Some are tiny, like capillary veins. Then he slammed the face of the skull into the heel of his other hand. He did it several times. He asked the jury to focus on the brain bouncing from front to rear within the cavity. Then he took out his pen, moved the tip within the gap between the brain and skull, and spoke.
“Many of the tiny blood vessels here have been torn and would be bleeding into this gap. The brain is not like a kitchen sponge. The blood coming in does not soak in. Instead it presses on the outside. The heart continues to bring blood to the injured site. However, it is not becoming an inflammation to heal a hurt. No, the blood is slowly pressing on the outside of the brain, squeezing it. Within a half hour, the pressure would crush portions causing damage. Other parts of the brain did not get the blood they needed for life.”
Williams paused for that to soak in.
“In the end, Marilyn had severe brain injury. If there had been obvious facial injuries and if a knowledgeable doctor had been at hand, the blood pressure could have been relieved. It was not. Now, Marilyn does not think like an adult. She is lucky that, unlike many stroke victims, she can control her arms and legs. Now she talks – following a lot of therapy in the eighteen months since the accident.”
Crash Scene Investigators know of many cases like this. The client in one of my cases was a twenty-year-old boy driving in a sedan with a friend of the same age. Their car, stopped at a traffic light, was rear ended severely by a much larger car. This crumpled the whole trunk of the car. That pushed the back seat ahead against the back of the front seat. The boy’s seatback flexed back so much that it exposed the top back of his head to the impact. After both cars stopped skidding forward, the front doors were opened and both boys got out. They were angry and shouting. They could not say or do anything to the driver of the other car who was badly hurt too. The kids sat down on the curb in front of the wrecks. They spoke to each other for a while as they waited for the police to arrive. The driver said, “Boy I’m getting dizzy.” Then he stopped talking. Finally, he slumped over to his side. He had become child-like forever like Marilyn.
C.S.I. AND THE P.I.
The man or woman who becomes a Crash Scene Investigator is most often a police office for a city or the state. Just like the crime scene investigators, they have a lot of technical gear in one or more trucks that goes to the crash scene with them. There are kinds of specialties, too, as you would expect in the crime lab. It’s the task of every kind of CSI to gather evidence. We sort the stuff out later. The most experienced people figure out what happened by just walking around. It doesn’t matter that they can do it so easily. The insurance company and the police, and lawyers if they get involved, need a fully documented report and lots of photos for every case.
What matters is the evidence itself. It goes in the record. Later somebody may need to look at it to form an opinion and conclude about what really happened. Most of the time, it is obvious what happened. Our client asks us the more important question – who made the biggest mistake – why did the collision occur? Not everyone will agree.
If one of the parties involved claims that his injuries are the result of the purposeful behavior of another person, the investigation can go into criminal court for resolution. The police may call it negligent homicide or manslaughter. Criminal conviction can result in jail time. Even if the driver gets off the criminal charge, the civil case may follow, as it did with O.J. Simpson. That is not what happened here.
In a Civil court, conviction of fault can result in some horrendous dollar penalties. Say Jack carelessly runs into Peter, who was a brain surgeon. The injury renders Peter a quadriplegic. That will make Peter unable to continue earning his substantial income. If the jury convicts Jack, his insurance company will have to pay. Even with a liability policy paying one million dollars that might not be enough. What if Peter ended up like Marilyn? She had her future ruined but it’s hard to put a money value on it. A lifetime of care for her would cost more than $1,000,000. The future earnings of the brain doc could have been several millions, to say nothing of his pain and suffering, and the loss felt by his wife and family. Who can afford to have enough insurance for a judgment like that?
EVERY P.I. LAWYER KNOWS
A PI lawyer is not a private eye kind of detective. He is a lawyer specializing in Personal Injury lawsuits. Winning a PI case could involve getting a lot of money from the defendant if he has it. His insurance company might be the one to pay. If the injured party has disabling permanent injuries, one million is not even close to being enough. The cost of a lifetime of care for a child-like brain-damaged person, or a quadriplegic person, or a badly burned youngster can run into many millions. If the lawyer can attribute the fault to a large corporation, then the pot of gold is in sight. Those are the people with “Deep Pockets”.
In the kinds of cases that I do, the PI lawyer must associate with a PL lawyer for a way to get some big compensation for that victim. PL means Products Liability. PL cases involve a defective product. The heavy hitter lawyer who manages big-award PL cases sues a major manufacturer such as an auto company or an appliance maker. His team plans to claim and prove that the defendant should have known that the product was dangerous but sold it anyway. Think of cigarette, medicine or automobile manufacturers. Yeah. They have lots of money. Deep pockets indeed.
If the claim is that the injuries are the result of the purposeful behavior of another person, even an unknown person in a company, the investigation can go into criminal court for resolution or it can stay in civil court and argue for punitive damages.
In turnabout, lawyers defending the company might say that the victim really caused the injury due to his own actions, but it almost never works. Why does this blame-the-victim shift not work? Sympathy. Usually the injured party has no more wealth than the jury people do. This is why PI and PL lawyers avoid a trial-by-judge. It is also a reason, in cases involving a national company, to pick a location for the trial where the prospective jurors have typically shown little sympathy for large companies.
It’s easy to shift the blame to the company with the deep pockets. Back in the 1960s, the lawyers came up with the basic concept. Ralph Nader said it best in his book, Unsafe at Any Speed. Yes, he stated, dumb drivers usually cause automobile collisions. However, if the company engineers designed and built the car without these defects, the injuries would not have been so severe. An example in the 1970’s went like this: If General Motors had not fought so hard to avoid putting airbags in the steering wheel; this victim would have had, at most, a rug rash on his face after hitting the parked car. The plaintiff attorney would admit that this driver like the majority (in the 1970s) chose not to use the uncomfortable seat belt. The crash pushed the steering wheel backward. The crash momentum thrust the driver’s head forward and smashed it into the hard hub of the steering wheel, causing a broken face, skull and permanent brain injury. You would expect the jury to say, “Pay up, General Motors!”
GATHERING EVIDENCE
A case usually starts when someone calls my company called CSI, Inc. A caller that wants our investigative services is either a lawyer or a company. Some firms, like ours, are known to prefer plaintiff cases. The lawyer would be one representing the injured person. The plaintiff’s lawyer is the one hired to get compensation for the harm caused by the defendant. The plaintiff attorney listed in the yellow pages under Personal Injury, which is universally abbreviated as PI.
A defense lawyer probably works for an insurance company that is defending someone or some manufacturer accused of causing some harm to someone.
In my case, Roger Abrams, a lawyer from the southern rural part of Ohio
Right away, the value of much experience paid off. I could see enough in the pictures to know that the girl’s car, a Pontiac Grand Am sedan, was not crossing the highway when the truck hit it. Abrams listened as my team told him that with these photos and with measurements we would be able to collect at the actual scene, we could reconstruct the collision accurately. We would show that the Grand Am was in the eastbound lane when a potato chip truck going west hit it. It did not matter that the tire skid marks and the debris would have been swept and worn away long ago. The lawyer told us that he wanted us to go there and get what we needed. He would begin the process of discovery. That meant he would ask the employer about the driver’s background, and he would ask the neighbors of the Smithers what they knew about the girl. We thought there would be enough evidence to show that Marilyn was going to turn to her left and proceed eastward toward school that morning.
Attorney Abrams had his office investigators (including a guy who was a private investigator working for law firms) look for witnesses that would allow him to get recorded interviews. If what they still recall was valuable, Abrams needed to depose them for the record before they forgot or have their minds changed. Who were they looking for? Here is a list in no particular order.
Jerry Gam, the tow truck operator. He got to the scene early but had nothing to do until the police released the vehicles for removal. He had to sit in his truck and watch.
David Johnson – the reporter and photographer for the town newspaper.
Bobby Ming-Chi - An EMT from the ambulance who first evaluated the injured girl.
Roland Kozlowski – the driver and other medic in the ambulance. We found that he is the brother of the police officer.
Jason Jones – the truck driver. He has quit the job and moved away without even telling his live-in girl friend where he was going.
Robert Klein - the friend who knows Jason the best of our witnesses. He told us that Jason is the party-guy who wanted to get his route finished early.
Roland and Mary Smithers – The parents of Marilyn. Abrams needs to record their memories of the affair before they fade.
Billy - the older brother who said that his sister always would have gone straight to school.
Grace - the younger sister who can say she rode with Marilyn frequently and thinks she was a careful driver. She will insist that her older sister was not a show off.
Harvey Davis – warehouse dispatcher for the Peter Piper Potato Chip Company. He supervised the truck loading. He directed Jason on the route.
Harold Broom - the director of Human Resources who hired Jason. He is also responsible for the training of PPPC drivers.
George Kozlowski - the on-site police officer. We do not want to get him interviewed now. We will say, for now, that his detailed report is sufficient. It would be better not to get him prepared to be defensive about his erroneous report and conclusions.
FINDING THE SITE DETAILS
I gathered the CSI team after we had a $1000 check for our retainer in the bank. We also had a signed contract. Hard experience says wait for the money and a contract. We left in the company van early in the morning to reach the site three hours later. The police report identified the crash site as the intersection of a highway with a narrow two lane county road, called CR333. The highway, SR44 with two twelve foot wide lanes, crossed the narrow local road in the valley between two long hills.
It can be fun or it can be horrible to visit the site of a collision. It might be raining; there might be a lot of traffic on the road, or at the edge of a rural expressway. That last part has been scary. Some drivers of eighteen-wheelers seem to enjoy hugging the right edge of the highway when they see our people in orange vests working on the shoulder. Some of us have had narrow escapes from being slapped by the front of a passenger-side mirror.
Barry Karth and Don Bloom were with me. Barry is a retired police officer with plenty of experience attending to automobile collisions. He retired after twenty years on the city police force because he did not like talking with drunken people in cars. Some of them had a gun hidden under the front seat. He feels more comfortable at CSI looking into crashes after the living and dead bodies were gone.
Don was younger, more of a general handyman. He was eager to learn this trade, which seems like detective work to him. He is always eager to go on road trips. Don enjoyed the challenge of making accurate, detailed map-drawings of every thing that mattered for an analysis. He did not want to stay at the office waiting for Barry and me to bring back almost all the measurements he would need. To avoid getting not quite enough information, he wanted to be with us so that every bit, even the tiny details, would be marked down.
We were at the crash scene almost a year after the collision, with the similar bright sunshine and soft cool winds in the morning. We were lucky. The light shining from the east would be at the same angle relative to the hilltop. We were still on the spot later in the day. The traffic on SR44 was lighter at mid-day – good for us. We had to park our van on the side road, a bit to the north of SR44, out of sight from the main road so as not to cause concern for other drivers. While the fellows unloaded the equipment, I went to stand at the edge of the main highway, close to some nearby trees. I did not want drivers of cars and trucks to notice me and think that there was a speed trap nearby. I was not wearing an orange vest, better to be unobserved. I had a clipboard and a stopwatch. The sheet of paper had one column for “vehicle”, another for direction and one for “time”. I watched for several dozen vehicles coming from the east and from the west and noted whether the vehicle is a tall truck or a passenger car. I was hoping to get a few trucks coming from the east like the potato chip truck. The purpose of this was record the time from the first sight of the vehicle until it crossed CR333. Why did I not use a radar gun? Speed of the vehicles would matter if I had to prove that Jason was going far above the posted limit. That was not my purpose. I was trying to find out how much warning Marilyn would have about cars coming from either direction. We experimented with a car on an intersection like this one, near our office, to determine that she could pull out, turn left and get completely into the east lane in six seconds easily.
After that, I stood at the northeast corner with 8 x 10 prints of all the photos made that day by the policemen and a newspaper reporter from the nearby college town. Barry went out on the road while Don stood on the corner opposite me with a camera. Don is also the lookout to warn Barry about traffic coming. Barry used an upside down paint spray can on a stick with a trigger at the top. It makes a narrow red spray downward with a special nozzle. Police use it to outline the wheels of wrecked cars. We also had a couple of “Roll-a-tape” wheeled gadgets for measuring distances longer than we would measure quickly with a tape measure. We also had surveying equipment so that later we could measure the topography – mainly the slope of the road toward the east and west. We also wanted to measure the side slope of the roadway.
While I compared the present scene to the photos, I directed Barry to point at a spot on the pavement or the shoulder where there was something visible in the picture. If he found a faint image of the original mark, he marked it. Otherwise, I had to move a bit to compare the angles so that I was near the spot where the photographer made the picture. I directed Barry to where something appeared in the photo. The mark on the pavement was not visible now but we knew where it had been. Barry painted a spot there and Don took his pictures.
We did this repeatedly, with the police diagram and the pictures until we identified and located all the stuff we thought was useful. We measured the marks relative to a coordinate system for making an accurate scene diagram later with the north edge of SR44 and the east edge of CR333 for the grid zero-zero.
Now we had to do something a little harder. We know, from prior experience with crashes like this, that the initial collision was about 20 to 30 feet east of the intersection. The police officer did not discover the marks on the pavement, so he did not photograph or mark evidence of that when he was there years ago. A few of our pictures showed the highway a few dozen feet east of the crossing. Those were the taken by the newspaper reported. Probably the reporter was trying to use up the whole roll of film. Lucky us.
I had to stand on the south side of the road with Don behind me to warn of cars coming too close. I was looking at pictures taken showing the rear of the smashed Grand Am and the rest of the road going up the hill to the east. With several pictures to compare, at long distance, Barry and I settled on a spot where I thought the photos showed a small patch of dirt which fell from the vehicles when they first collided. I also saw what I perceived to be the path of a faint (at that distance) tire mark leading down to the location of the front of the wrecked Pontiac
Now the three of us used the clipboard, Roll-a-tapes and measuring tapes to plot these things onto a diagram. One person can do it alone when the client is cheap and pays for only one investigator. One worker could get enough data if he came back the next day – costing more. Having three pairs of hands and eyes made this go quickly. We got more than enough data to make good three-dimensional maps later on.
Now we did the job that takes a lot of walking. Again, having three people made it easy enough that we could finish without coming back another day. Don went up the road with the surveyor’s stick; Barry operated the surveyor’s level, and I wrote down the numbers. We had the height of the road, east and west, every hundred feet up to the crest. The valley at the crossing is level, so we skipped that for CR333. Great. We did the whole job in one day.
JASON’S UNHAPPY BOSS
Attorney Abrams was the one charged with getting the background discovery. Discovery in legal jargon means finding out what the other people know, or what they should have known but did not act upon. After he got the confirmation from CSI that the crash was not due to Marilyn’s error, Abrams notified the company offices of Peter Piper Potato Chip, in Columbus Ohio
Abrams sent Interrogatories and Requests for Production to the law firm representing the other side. An interrogatory is a numbered series of questions about almost anything that would be relevant. The RFP is a legal document asking for the documents of any kind that the company has that might bear on the issue.
In our technical report, given to the defense attorneys with the notice of suit, we said we would prove that Jason, the driver of the PPPC truck, did not try to avoid hitting Marilyn, but actually hit her car on purpose. The questions sent to PPPC were to find out why he might have done that.
Wait, you say. Why sue PPPC? Why did we not sue Jason? He was just a working stiff. The best we could have accomplished going after Jason would be to get the state police to arrest him and try him on a motor vehicle charge. If the state convicted him, he might have been fined or put in jail for a while. That would not do a thing for Marilyn. Maybe her parents would have felt vindicated but they would still have had the burden of caring for their permanently handicapped child.
We were going after PPPC. They had the responsibility for the hiring, training and conduct of their employees. If we showed that they were negligent in that duty, we would collect from PPPC – and they do have deep pockets. After seeing the kind of discovery we requested, PPPC lawyers suspected that there is more to the story than what they saw in the police report. It was also clear to the PPPC people that this case was not a small claim. The Smithers were demanding that PPPC pay enough for a lifetime of care for a young beautiful brain-damaged girl. Whoa! That can amount to tens of millions of dollars with all the expenses and pain and suffering thrown in. Now the lawyers for PPPC, a firm called Holt, Harangue, and Kilt began to send INTs and RFPs to our side. They needed to know why we were making the claim - why did we think the crash was not the fault of Marilyn, despite the police report.
After PPPC got the paper work from us, they saw that this would not be an easy case for them. Our report and our evidence were so thorough that the PPPC people did not schedule depositions of any of our experts. Good. That shows the value of clearly written reports and solidly documented evidence. Avoiding depositions saves a lot of money and time for both sides.
JASON’S MOTIVATION
Examination of a hostile witness is usually the most exciting thing in the course of a long trial. We describe the procedure as hostile because that witness doesn’t want to volunteer any information. That person could be on the other side, or may just not want to be involved at all. Interviewing Robert Klein, a friend of Jason Jones, was useful. Bob told Abrams that Jason was rowdy and had a drinking problem but was never caught DWI. Abrams learned that just before the accident, Jason resented being laid off for two weeks and still was upset, the last time Bob had seen him. After the crash, Jason had packed up and left town, without even telling his girl friend about it.
Attorney Abrams had seen enough in the company employment paper work to ask questions of the management of the Ohio
Abrams asked Mr. Broom to bring employment papers relating to the hiring and training of Jason to the meeting. Broom also brought photos of the truck. The adjuster for their insurance company had taken the photos before the front of the truck was repaired. Jacob Harangue, attorney for PPPC was seated with Broom when the questioning for the record commenced with a court reporter present. A court reporter was there to record the conversations, unless they went “off the record”. Abrams quickly established Broom’s responsibility and competency to answer questions of this nature. Having his own copies of the employment records on hand, Abrams simply put on record what Broom knew about them.
Broom admitted that driver Jason had been a problem before. The company had a collection of complaints from the convenience stores that Jason serviced. Broom knew that Jason became surly when he was frequently late on his route and did not help the store clerks after depositing his load on their floor. The record only hinted that Jason might have been a drinker off duty but never on the job. His immediate supervisor had opined this on the record. Robert Klein thought Jason being hung over was the reason for being late and surly. The company had put Jason on unpaid leave for two weeks following several complains from convenience stores on his route. That certainly could explain Jason’s aggressive attitude that morning.
Good. All of that came out when Broom was in the witness box. Putting that remark about being hung over in the employment record was not smart. I am sure that PPPC later told their supervisors to be careful with stuff like that.
The company sent Jason home for two weeks, without pay, for that bad behavior. The crash happened on the first day Jason was back on his route. Of course, Broom was not about to admit that Jason probably had a resentful, bad attitude that day. Abrams put the question in the record knowing he would not get a clear answer. With that evidence on hand, those employment facts were all we needed to convince a jury that Jason was motivated by self-righteous anger to take it out on somebody else.
THE TOW TRUCK OPERATOR
You might wonder how I know what other people did at the scene if I was not at that place until years later. First, I had plenty of occasions to be at a crash scene while other technical people (cops, firemen and EMTs) are doing the initial investigation. In our business, we call that “getting there while the blood is still sticky.” I looked at the police report and the diagrams made by the officer. I read his written narrative from interviewing witnesses and closely looked at the photographs made by him and the newspaper reporter. There were some recorded statements made at the time. The private investigators from the office of attorney Roger Abrams took other tape-recorded statements. They were able to interview almost all the people who had been there. The police provided all those documents to CSI. Good background work, if I may say so myself.
The first people at the scene of collisions are those who crashed, of course. In this case, the intersection was remote, with no homes right at the corner close by. The Smithers home was about a quarter mile south, on the west side of CR333. Their home was close enough that they might have heard the noise of the crash, which was loud and brief - very much like the sound of a shotgun. The Smithers probably did not then associate that noise or the sound of the police sirens with their daughter.
The truck blocking the two-lane state road halted the next few vehicles that came upon the scene. One driver probably had had a cellular telephone. Otherwise someone went to the nearest house, north on CR 333, to call the police. There was little reason for the police to get to any of those people as witnesses, as they did not see the collision itself. Those bystanders alerted the police that there was a serious injury because the victim in the car was unconscious and unable to talk. The dispatcher sent two police cars. One officer was to investigate, the other to help direct the traffic through the site. One of them requested the dispatcher to send another officer to the intersection nearer the city to direct traffic around the detour, after it became obvious that the accident site would be tied up for a full investigation. When the office determines that the injuries are or might be fatal he must call for the whole investigation. These circumstances required the dispatch of a fire truck and an ambulance. Two tow trucks arrived shortly after the emergency crews.
One officer placed Jason in the back of a police car for interrogation. The potato chip truck was still drivable even though the left corner of the bumper was bent back against the tire. That prevented the wheel from turning until a couple of firefighters pulled the bumper out a bit. Then they parked the truck on the side road. Later, a tow truck took the truck to Smithtown to await the decision about what to do with it. After a brief exam by the EMTs, Jason was allowed to ride back east with his truck to report to his boss and the company claims investigator.
THE WRECK OF MARILYN’S CAR
The Pontiac was sitting on the northwest corner of SR44. It was leaning to its passenger side where a shallow ditch near the pavement was holding both passenger side wheels. The front of the car angled toward the southeast. If one made a quick appraisal at the scene, it would appear that the truck struck the Pontiac Pontiac
I saw in the later photos, that the grille of the Pontiac
Inside, Marilyn Smithers slumped backwards and toward the center of the car. She had her head between the front seat backs. Marilyn still was wearing her seat belt. Blood streamed down her face from the gash on the left side of her forehead. She was unconscious but breathing regularly. There was little reason for the police or the EMTs to immediately know that this had been a fatal collision. However, their standard protocol was to act as if death could follow since the girl was not able to be awakened. That meant that the police had to take many photos and they had to document the scene with measurements, such as the location of the point of first impact. Doing that is not as easy as measuring and diagramming the resting points of the vehicles. Typically, one police officer gets a can of red spray paint to outline the position of four tires of each vehicle at rest.
At the car, one EMT entered through the passenger door and quickly evaluated the girl. He covered her with a clean cloth so that she broken glass would not fall onto her while the other firefighters used the Jaws-of-life tools to cut the roof pillars and the roof rails Then they peeled back the roof like a sardine can. They knew it would take longer to cut open the smashed door because it was compressed tightly in the side of the car body. The EMTs gently lifted Marilyn out, placed her on a gurney and took her east to a hospital.
The word spread around Smithton that the injured person was Marilyn Smithers, well-known as the prettiest girl in the high school. The small town newspaper sent a fellow to take photos and talk with the family. Reporter David Johnson went to the home of the Smithers for their reaction. It was awful. At the time of the collision, Roland and Mary Smithers did not have the curiosity to walk down to the corner of CR333 and SR44 to see about what the noise was. Hearing for the first time that it involved their daughter, they brushed off the reporter, and drove to the Smithtown hospital without even stopping at the intersection to speak with anyone. Had they stopped to talk, they might have discovered then that people thought Marilyn was going across the highway when hit.
The fellows who drove the tow trucks walked around waiting until they could pull the Grand Am onto a flat bed. Both got credit for sweeping the pavement clear of all the debris shed from both vehicles. No gasoline or engine oil had fallen onto the road, so the firefighters did not need to flush the roadway. Jerry Gam had the truck that carried the wreck of the Grand Am into town. He, like most of the young men in town, knew the pretty girl nicknamed “Marilyn Monroe”. He lingered to make sure that the road was well swept. After securing the Pontiac
BACK AT THE OFFICE
Now that we had the evidence back at the offices in Dayton
What I concluded about the crash was not in the diagrams or the narrative pages in the police report. The truck’s left corner of the bumper lightly struck the rotating wheel cover on the left front of the Pontiac Pontiac
The collision with the stiff hinge pillar also jammed the truck bumper back against the truck’s left front wheel putting it into a left turn attitude, too. The car came to rest with the right front wheel in the ditch on the west side of CR333; and with the right rear wheel in the ditch on the north shoulder of SR44. The car appeared to be at a 45-degree angle, nose pointed to the southeast. The truck continued moving along with the Pontiac Pontiac Pontiac Pontiac
Thankfully, the insurance adjuster did take one useful photo that showed the bottom edge of the driver’s door window. The outside door skin had been tented (puckered) outward, and the inside skin of the door was tented inward. That does not happen in a genuine side impact. It is characteristic of a frontal collision, which will foreshorten the door. The newspaper photos did not add to this information, but the newspaper guy did stand far enough back taking some of his shots. His shots looking east beyond the wrecked Pontiac
I did not get to examine the wreck itself at the insurance company holding lot south of Columbus, even though I had been there looking at other wrecks. The Company had repaired the truck and put it back in service before the suit was brought. Otherwise, they would have been required to hold it for inspection.
The Smithers family disposed of their wrecked car before they realized that they should have contested the claim that Marilyn was the cause of the collision.
MY EXAM
“Examination” is the correct word for what goes on when the lawyer is questioning a person on the witness stand. That word is accurate. The rules are this: the attorney asks questions. The witness answers them. The rules are that the lawyer does not ask questions that sound as if he is testifying himself. We call that leading. The witness is required to answer the question, and only that question. He is not to make speeches. Oh sure, you see that a lot in movies and on TV, but not in real life. The opposing lawyer will object. The lawyers have to be clever and careful to ask a question that will justify a long answer – a speech – if that is what they need for their side. A smart attorney will never pose a question without knowing what to expect in the answer, believe me.
The defending team always bats last. My side, the plaintiff’s team bringing the claim against the defendant, must make our entire case before the other team begins to dispute it. Sometimes the defense puts on some testimony that brings up something that the plaintiff’s team didn’t talk about of before. Then, there is an opportunity for rebuttal. The rebuttal is usually exciting because that is where the fighting starts. The defense can be nasty when cross-examining the plaintiff’s witnesses. That is nothing compared to the stuff when the plaintiff’s expert gets to comes back in rebuttal, in an attempt to tear down the stuff presented by the defendant. The rebuttal is not the time to bring in testimony about something new. Judges should stop that.
The order of witnesses and presentation of other evidence is important strategy for both teams. Typically, the lawyers want to get the background picture established first, so they call the eyewitnesses, then the police and other official-responding persons, such as the EMT and fire fighters. In some cases, even the tow truck operators add something useful. Every team must be wary of eyewitnesses who recall seeing and hearing things differently. The lawyer has to tread lightly to smooth over the disagreement of witnesses. He cannot let them fight in court about significant things. Eyewitnesses to a crash usually recall what they think they saw. The typical crash is complete in about a tenth of a second. It takes a bit longer for the vehicles to come to a stop. That is why physical evidence trumps even the most determined eye-witness. That’s why CSI is paid so much. Oh, by the way, we are not paid for our opinion. That is a nasty crack that comes from the other side. We are paid to present evidence, with an expert opinion as to what it means.
Next, our team brings in people who will describe the injuries and damage that justify the claims for compensation. These people could include the medics in the ambulance and in the Emergency Room. The lawyer asks the various professionals, who handled the recovery and long-term care, to paint a picture of a long and expensive rehabilitation plan. A financial person will provide a bunch of numbers to estimate the cost of medical recovery and lost income.
The crucial question is why should the defendant be held responsible for all this? Why is it his fault more than the fault of anyone else, including the plaintiff herself? What do I mean about that? Here is a for-instance. The police have charged you with stopping at a side street and then pulling out into the path of the defendant who has the right of way on the main street. They say it is your fault that the other car hit you. You should have waited for him to pass. However, if I can prove that the car on the main street was going way over the speed limit, much faster than anyone would ever expect to get away with – then you can win. I can argue that you looked up the road and saw the other car coming. It was a long way away, so you normally should have had plenty of time to cross safely. Usually, you can cross the street in time to get the rear end of your car out of his lane. You never timed it with a stopwatch. However, experience says it would be about four seconds. When you first saw the oncoming car, you made a judgment based on crossing that street hundreds of times before. Another car traveling near the speed limit would not be at the crossing for at least six seconds. An engineering analysis of the collision might estimate that the hitter was going about 20 mph over the speed limit before he tried to brake. Therefore, the collision is not entirely your fault. A jury may award you full recovery of all the monetary damages. Yeah, but they can’t make up for the pain of the injury. Nevertheless, it sure feels better to not be blamed for your own misfortunes.
The lawyers need to call expert witnesses. That person is not an eyewitness, nor a fact witness. He is someone with expertise that qualifies him to express his opinions about some of the evidence. Oh, I should tell you that it is fatal to the expert’s career to ever say “I guess”. The other side will say, are you speculating, Mr. Expert? Answer, “Yes” – and you are out of there forever.
When an expert witness is to testify in such a case, he has to avoid saying things that can be labeled junk science. Junk is when an alleged expert witness makes statements that are just plain scientific baloney, easily exposed. Each lawyer wants the jury to believe that only his or her experts are genuinely knowledgeable. Engineering, medicine, psychology fields are all plagued with junk science. A person who talks about some things that are subject to rebuttal must be able to convince the judge, first; then opposing attorneys, and the jury that he really does know about his subject – not speculating. Making up things to say will be fatal. The other side’s expert, if he is on his toes, will tell his lawyer “this is junk”. If the judge buys that, the junk scientist is finished. I have knocked off a few. Feels good.
Usually there are several experts in an automobile personal injury case. The typical case requires an expert in accident reconstruction. A medical team spells out the consequences - the injuries, while a financial person sketches the costs to the plaintiff in lost wages as well as ongoing medical expenses. Difficult cases involve a product liability claim that a manufacturing or design defect is the cause of the severity of the injury. Then both sides need engineering experts to describe the alleged defect or disclaim it. Different medical people come in to explain exactly how the injuries were, or were not, the result of the defect.
Just the preparation for this scope of case is expensive and time consuming. Lawyers pay experts for their time doing research and testimony. Evidence and other data are dug out by research of the relevant elements of the files belonging to the other side. All of this takes months, even years, to get ready and big bucks. The lawyer has wasted all of it if the other side catches his expert “with his pants down”. Being caught making up things is fatal. No matter how many times I say that, some guys never get it.
To be qualified as an expert; permitted to express my opinion, I must establish some credentials. The lawyers for our side must ask me questions to which my answers will convince everyone that I know enough to be an expert in this technical subject. To be judged competent is a much bigger hurdle to overcome than for an eyewitness. The jury can assume that the expert has an interest in the outcome of the case because he is being paid. A person, unrelated to any of the parties, who saw something can say what he thinks he saw. He could be mistaken, without fault, because his viewpoint differs from other eyewitnesses.
For me, getting qualified is easy. Years of experience in and around the auto industry, with plenty of hands-on work in auto safety will do it every time.
PRELIMINARY TALK
Now I was sworn in, to tell the truth, the whole truth and nothing but. First questions, for the record; who am I, where do I work and where do I live? Ok, I am more than 30 miles from home, so I must be an expert? No. We needed to establish my credentials.
Question (by Roger Abrams, attorney for the plaintiff) Mr. Thelin, you are called here to describe what you discovered about this case, right?
Answer: Yes
Q: Are there aspects to your training and experience that qualify you to speak of these matters?
A: Yes
Q: Please tell us about your education first; just name the schools and your degree.
A: I graduated from the University of Wisconsin in Madison , Wisconsin
Q: Mr. Thelin, do you have other degrees?
A: No, just occasional special classes.
: Oh. What, for instance?
A: All of it was related to what I do now. Computer programming for instance.
Q: Very well, then. What about your work background would qualify you?
A: Well, shortly after graduating, I went to work at the Engineering Staff of General Motors. There I was a designer of experimental cars such as the prototype for the first front wheel drive car that became the Oldsmobile Toronado. However, I really was interested in automobile safety. My bosses did not allow me to transfer to the Proving Grounds for that. Instead, I volunteered to transfer to the Chevrolet Division to assist the GM Legal Staff in defending the lawsuits that claimed that the Corvair had been designed with inherent defects.
Q: Let me interrupt you, Mr. Thelin. Am I right – did you work for the defense of General Motors?
A: Yes (He really wanted the jury to catch that.)
Q: Go ahead.
A: I thought that kind of work would lead to an assignment with the new safety research group at the Proving Grounds. It did not. I finally decided I was on the wrong side there.
After that, I went over to Uniroyal, the tire people. They needed my background. The job changed focus. Instead of being research, it became quality control. It was not pleasant to work in the tire factory.
Next, I had an invitation to go to Buffalo , New York CAL CAL CAL CAL
For a long time we had the most powerful crash test facility in the country. We could even crash cars at speeds up to 60 mph.
Objection by Mr. Harangue for the defendant: “Judge, I think Mr. Thelin is belaboring this testimony. Can we move on, please?” (He wishes) “No.”
Q: By Mr. Abrams: All right. Mr. Thelin, would you tell the jury about any other work that applies to the case at hand?
A: OK. In 1972 Consumers Union, publisher of Consumer Reports magazine had an ad for an Automobile Safety Engineer. I had been a long term subscriber so I was interested enough to apply. I got the job on the spot and stayed there in that position for nine years. I was writing about every aspect of the 50 or so cars and trucks that CU tested every year. I wrote about handling, crashworthiness, and even the pioneering reports on child restraints for Cars. …
Q: Interrupting. All right. Mr. Thelin. What are you are doing now?
A: In 1981, I was foolish. I thought that newly elected President Reagan was going to dismantle the entire consumer protection activity of the federal government. I looked for another job in industry. Now, I am sorry I left consumers Union . The new job paid very well but was just about the opposite of what I wanted. The greedy management focuses the company on making money without regard to quality or safety. The owner fired me for some things I said about that. Felt good to get out, except that the 1982 recession was on. After than I began doing what I am doing now.
That was the end of qualifications. Sometimes the judge gets interested and lets me go on. Not always.
DON’T CALL THIS A CARTOON!
I want to describe as well as I can how the computer animation is produced. These were the early days of the use of computer to analyze automobile collisions. CSI began to use that capability to produce a movie-like display of what the crash might have looked like. Some people said the crude stuff looked like movie cartoons. Don’t say that to the guys who slaved to make them.
In those very early, pioneering days, the movie was not in color, and the shapes were simply wire-frame. Wire-frame means that the computer outlines the shape of the vehicles with thin lines. There was no illusion of solid shapes or texture. Programming was needed to erase the lines that would show through the empty space of the figure from the opposite side. Yes, it was crude – a long way from life-like Shrek shapes seen in animated movies today. However, with plenty of background explanation, our crude moving pictures could make it clear that the speed of the objects on the screen looked realistic – and much quicker than most people could imagine. Therefore, we would show a collision in real time – just a blink. Then, with computer magic, we repeated the scene with progressively slower frame rates. We would also zoom in to focus on some particular aspect, such as the impact against the left front wheel of the Pontiac
This was the first time that Barry Penn, our computer whiz, could demonstrate such a complicated scenario. We had earlier successes with computer animation. Those were easier scenarios for the cases when one car, or truck, made a left turn in front of an oncoming vehicle. The pre- and post-crash trajectories of such a collision are straightforward. An overhead view of the action suffices – without the need to wrestle with 3-D solid-object modeling which we would do for the Smithers case.
Barry did get a chance to use this kind of animated work in a case we had in a county courtroom in the northern part of the state. This scenario was simple. It was a rural T-intersection where a state road ran north and south, with a smaller road joining it from the west. Here we did have an early involvement and were able to measure fresh gouge and tire marks. A northbound farmer pulling an empty horse trailer with his pickup turned left in front of a small car going south. You can imagine – the pickup truck itself did get out of the way, but the trailer did not. The pickup driver thought that it was simple. The farmer claimed that the car must have been coming at a hellish speed because he saw the car when it was a long way off before he started to turn. Yes, you could believe that the silhouette of a small car might make it seem farther away than it was. Nevertheless, we could analyze this collision. It was harder because both vehicles were unlike the typical sedan. We worked it out with consideration of reaction times and tire marks. One thing became obvious. The farmer was tiptoeing very slowly around the corner onto a narrow side road. He did not want to upset the horse. It wasn’t that the guy in the MG roadster was flying. It was that the trailer was creeping off the road. I got to show the movies more than once to really drill it in to the judge and jury that the farmer mistakenly thought the sports car surprised him. Knowing the masses of each vehicle, and the length of all the tire marks, we were solid.
MY ELECTRONIC DRAFTSMAN
At this point in history we had a problem with credentials in this animation. Back in the 1970s, opponents belittled our people who made rudimentary wire-frame computer animations as “cartoon makers”. People were no more likely to believe that I could show the dynamic appearance of a crash on a computer screen, than they were going to believe that Walt Disney was showing real deer in “Bambi”. Oh boy – that was a bad thing to say to Barry.
All I had to say is that “What you see on the computer screen is an illustration made by my ‘electronic draftsman’. It is a dynamic, moving illustration of what I believe happened – in my expert opinion.” There might be a little bickering, and a threat from the other side to show a more realistic picture. The judge usually let the jury see it all.
Now, I pointed to Barry Penn, seated at the table with several pieces of computer gear. “Barry is my electronic draftsman. He has drawn a very large number of pictures based on my expert description of what happened that day. He and I, and his assistant, engineer George Hamm, verified that what you will see does not violate the laws of physics. George and Barry will not show you a cow jumping over the moon. This is not a cartoon.”
The judge called Barry to testify and explain how he does his work. Barry began by explaining that all movies and television pictures are really a series of still pictures shown in rapid sequence. Just like the pages of the funny books with a pad of tiny pages that you flipped through quickly. In this case, movies show pictures one at a time – one every 24th of a second. On TV, you see 30 pictures each second. To your eye, it ¬looks like motion. That is why we used to call movies “motion pictures”.
Good. Barry handled a bunch of questions from the defense attorney with ease. He is happy. Every time we get one of his simulations accepted into court, the precedent makes it easier the next time. Now the questioning came back to me. The jury had their appetite whetted – I knew they want to see this movie.
“Folks”, I carefully explained, “This is not a movie showing what actually happened. If I told you that, Mr. Harrange would jump all over me.”
Pause. No objection there. OK.
This computer simulation illustrates what I believe really happened. The other side is going to argue later that it is not correct. That is why we are here, in a courtroom, in a lawsuit. Their side has experts that will tell you later what they think happened. Look at this simulation carefully. Later the lawyer for Marilyn will ask me questions about it. Then Mr. Harrange will ask me more tough questions. Just look and listen. Friends in the courtroom told me I had a smug smile. I got to watch that.
THE EAGLE LOOKS DOWN
This is what they saw. It was a bright autumn day when Jason met Marilyn at the intersection of highways SR44 and CR333. Most of the trees were nearly bare of leaves, so plenty of low slanted light fell onto the roads. At 8:30 AM, the sun was bright enough that anyone could see other cars on the highway. The roads crossed in a shallow valley, where the crest of a hill to the right was about four seconds away, while the crest of the hill to the east was at least ten seconds distant.
Later, someone would ask, what do you mean “four seconds” and “ten seconds”? “It means more to you than saying 250 feet or 600 feet from Marilyn”. The speed limit is 35 mph, but we know that everybody is really going to go at least 40 mph. Forty miles per hour is the same speed as 60 feet per second. So, think of these measurements as the time before an oncoming vehicle will reach the intersection.
Actually, Marilyn would be able to see the top of a car coming up the hill on her right just before it crested and became fully in view. She world have about five seconds to accelerate and turn left before the eastbound car would catch up. Ten seconds of clearance to her left gave Marilyn plenty of time to get out of the westbound lane. Those are the numbers that set the east-to-west width of the aerial view of our “movie” looking down at the crossroads.
I said to the jury that this movie would look as if we are an eagle gliding above the crash site. We can look down from high above. We can even swoop down for a closer look later. Looking down at the computer graphics scenery, there were small dots – the tops of mostly bare trees. Jason’s truck entered the scene climbing the hill from the east. Marilyn’s Grand Am came up from the south on CR333 and stopped that the edge of highway 44. The “movie” showed no cars coming from the west, because we know none could have been there at that moment. If there had been another car so close, it would have been involved in the crash, or have seen it, being just behind Marilyn.
Looking down from way up above, you could see what both vehicles are doing. However, from experiments with other cars like the Grand Am I know that it would take about four seconds from the time I pushed the gas pedal firmly until the car was in the eastbound lane.
Watching the movie scene from above, we can not see Marilyn looking first to the right, west, as the truck comes to the top of the hill from Smithtown and goes quickly down the hill. After some hesitation, while we think she was looking to her right, we see Marilyn’s car begins moving, slowly at first but quicker as it turns into the eastbound lane. The truck is there already - its left corner hits the left front wheel of the Grand Am. Locked together briefly, both vehicles slide to the west. The momentum carries the Grand Am onto the south shoulder of SR44, and the truck pivots and come to rest almost perfectly cross the road.
Figure 1 Scene drawing
To show the whole scene, the screen showed the eagle’s view looking down from several hundred feet above. The vehicles were just little rectangles on the map of the roads. “Let’s do it over but get closer.” The “eagle” moves down so that the crossroads just fill the screen. Now we are close enough that the jury can see that the car looks like a car, and the truck looks bigger and has sharper corners. Even though the centerline paint markings were faint that day, our movie shows the center of the road clearly enough.
Now the jury saw the action in more detail but the crash picture was over quickly. We ran the same scene at “real” speed so that the watchers would realize how quickly a crash is – not at all like what they see in movies or television. Then the scene was repeated in slow motion several times. Now I asked the jury to watch as the left corner of the truck crossed the highway center just far enough to put the truck bumper right onto the left hubcap of the Grand Am. The sharp cornered bumper did not do much damage to the wheel. Instead, the bumper continued rearward to engage the back part of the wheel opening. Then the major part of the mass of the truck was bearing against the major structure of the Grand Am. Car-people call that part the hinge pillar. The hinge pillar is the car body structure at the front edge of the door. It is connected to the opposite side of the car by the strongest part of the car body - the base of the windshield frame. The mass of the truck is greater as is the impact speed. The truck forced the Grand Am backwards violently. Violently means the change of speed of the Grand Am was a lot. It stopped moving forward at about ten mph, and then it moved back at about 20 mph.
The crash was not violent for Jason. He experienced a milder change of speed. The truck slowed from about 40 mph to about 20 mph. The rim of the steering wheel probably bruised his chest.
The jury did not see those details in the movie, nor did they see when the windshield of the Grand Am slammed back into the forehead of the girl. I described that by smacking my forehead with my palm. CSI did not have our computer technology advanced to the point that we can realistically show the motion of the people inside the vehicles that crash. That will take years of development to come. Now days, engineers do that on a high-end personal computer
With the computer simulation, we can add something very important. We will show how easily the truck driver could have avoided this crash just by staying in his lane.
THE EAGLE SWOOPS DOWN
So far, our side has been able to persuade the judge that our movie is based on well known physical motions anchored by the evidence measured in the real world or captured from photographs. The defense lawyers objected to this display of computer- generated motion pictures. Their side does not have the technology at hand to do the same. Judge Grimm overruled them.
I continued.
“We showed the path of the truck. We will now show what the truck driver should have seen. We cannot show why he did what he did. The Smithers expect that their lawyer will do that in his cross-examination of Jason’s employers.” Pause, breathe, and let that sink in.
“Now folks, so far you have had the eagle’s eye view looking straight down. Now imagine that this eagle swoops down close behind Jason’s truck as it comes over the hill. Imagine that one of the back windows of the snack food truck is broken out so that the bird can see over the driver’s shoulder.” My electronic draftsman presses more buttons and the computer screen shows what could be the eagle’s view as it dives down to the east and swoops westward low behind the truck as the truck comes up to the crest of the hill. At the crest, the eagle can see the Grand Am down the hill, coming to the right-hand side of the intersection. The trees that appeared as dots from above now look like toothpicks bare of their leaves. The Grand Am is far away, kind of small, but in plain view. The “movie” is paused after I waved to Barry.
“Now”, I tell the jury, “Watch when the eagle flies through the back window and perches on the driver’s shoulder.” I hold my breath. No new objections. Praise the Lord. Let us go on.
The simulation continues. The jury can see the roadside trees flashing by to the right, and the painted road centerline on the left. Now they can see the Grand Am begin to move out and turn, slowly at first – but not quickly enough. We show the simulation several times, drawing the attention to different aspects in view, as I describe it.
“Note how far away ‘we’ are when we see Marilyn’s car moving from right to left. See how far out in the street it is when you can tell it has begun moving. Notice that her car is almost perfectly in the (proper) oncoming lane before the truck reaches that spot. In addition, notice this, which the evidence clearly establishes – Jason’s truck veers slightly to the left just before the collision. We do not have the computer technology to show what happens inside these vehicles. If we could, we would have shown that the girl’s head tipped forward as she stretched her shoulder belt. Then the windshield A-pillar slammed into her head.”
I offered to show these scenes again for the jury, but I did not feel too badly that Judge Grimm sustained the objection of defense attorney Harangue who did not want us to replay this simulation more than twice. It does not matter. The jury’s eyes were riveted to the screen. After the objection, they gazed at Marilyn in her “Snow White” innocence, looking unconcerned.
I am sure our side won the case right there. Well, not quite. I still have to show how Jason could easily have avoided this crash. That is easy. The jury will easily understand two things that will be brought out later.
SUBCONSCIOUS MOTIVATIONS
Now Mr. Abrams was going to ask me some questions. We expected that I would not be allowed to answer them. There is a thin line between offering expert opinion and just speculating. If I was accused of guessing or speculating in any answer, that would draw an objection. I said that I had read the transcripts of the depositions or two people from potato chip offices in Smithton. Abrams did not ask me more. He said, “We’ll hear more about that later.”
Abrams had gone through the trouble of getting some of the background of Jason Jones from his employer, Harold Bloom and his dispatcher, Harvey Davis. Their reluctant testimony made it clear that Jason had a problem with his attitude toward others, and especially with anger management. The company laid him off for two weeks because of complaints from workers at the convenience stores. His surly attitude about doing nothing more than just unloading the snack foods was the basic problem. It was suggested that Jason was a party-guy. Getting through with his route quickly was probably the reason for not being helpful with stocking the shelves. It was understandable that Jason would hurry to be able to end his workday early.
Now, I had to tie that into the “so what”. Abrams needed to put emphasis on my credentials, so that I would be permitted to say it.
Q: Carl, you told us earlier about your work for the legal staff of General Motors when you worked at Chevrolet. You said that GM tried to put the blame of crashes of the Corvair onto the driver. Can you explain that?
A: Sure. We did some work just going out around Detroit and Southeast Michigan following all kinds of drivers. We did more than just watch them. We put a movie camera in our back seat looking out front, with a large speedometer fastened to the top of the dash. That way we could show that we kept following the other car at the same distance, at the same speed. We wanted proof of how fast people wandered around curves, for instance.
Q: What did you need that for?
A: Some folks slowed down for a curve and went around the highway curve in a jerky manner. They were sort of making a polygon out of a circle. It could get so bad that the car would sort of bounce from the centerline marking over to the white line at the right. Other people did not slow down. They went around the curve smoothly, staying in the center of the lane. This was on the large curve on the highway at speeds of 30 to 65 miles per hour. We made other films to show how people went around street corners, in turns to the right or turns to the left. Here the speed was important so we could stage this stuff where one of our guys would have a hidden radar gun to measure the speed of approach more accurately. We also asked ordinary people, not test car drivers, to drive around the GM Proving Grounds. We would arrange for some more strenuous driving situation to see how they would react to an emergency. There was a bunch of scenarios – the best now known as the “Accident Avoidance Maneuver” used even by Consumer Reports. The purpose of this was to be able to say, in court, what we have observed about how people do behave.
Q: Mr. Thelin. How does that experience help you today?
A: Well, it helps me to understand how and why Jason would have made his truck hit the Pontiac
Q: How does that work – what do you mean?
A: If I may, I would like to make diagrams on the blackboard.
Abrams directs his eye toward the defense table …
Q: If there is no objection, you may.
A: (standing at the board) Here is a circle. Say that is a 20-inch diameter steering wheel of a truck. We have a white mark on the top, as we did in the cars shown in the chase-car movies. Now, say that the steering wheel is wiggling back and forth about an inch either way. That is not unusual for a truck with a solid front axle. A turn of one inch is six degrees. That is the angle between the minute hand and the hour hand at eleven-fifty nine o’clock. Let’s assume that the driver turns the wheel to the left only two inches from straight ahead. With a steering ratio of 24 to 1, that would turn the front wheels about a half a degree. That is barely visible. Remember that six degree is 11:59 on the clock. We say the truck was going 40 mph. That is reasonable going down a long hill. That means the truck moves about 60 feet every second. In just two seconds, it goes 120 feet west. At that angle, the truck also goes 1 foot to the left. Two seconds is a typical response time to make a decision.
Q: What? What about two seconds?
A: Well, we know that Jason had plenty of time from the top of the hill, to see the Pontiac
She didn’t need to wait. We know now that she would turn left into the other lane. Now, our reconstruction shows he could have slowed down just by letting up on the gas pedal to give her more time to cross the road, if that was what she was going to do. He did not. He could have edged the truck to his right to give her more space. However, it appears that he did the opposite. He let the truck edge to the left, to teach her a lesson.
Here I had to move on quickly, not pausing for the expected objection.
A: (continuing) Marilyn probably did not see the danger early enough to veer more to her right. If the impact had been a tiny fraction of a second later, the truck would have barely sideswiped the Pontiac Pontiac
Here, I made a sketch on the white-board to illustrate the action on the tire and the location of the major impact between the truck bumper and the Grand Am.
(continuing) I have already told you in detail what happened after that.
Q: Mr. Thelin. Do I understand that you believe that the crash details support your opinion that Mr. Jones could have easily avoided this collision?
A: Yes.
Q: Do you have an expert opinion based on the evidence available to you that Mr. Jones deliberately steered his truck leftward to throw a fright into Ms Smithers?
A: Yeah, I think he wanted to teach her a lesson – not to pull out ahead of him.
Wow! We got it in. That would be the nail in the coffin. I thought we convinced the jury that this was not the typical intersection accident.
PRE-EMPTIVE TALK
We still had to rebut the arguments that jury would hear from the defense during their portion of the trial. Our team needed to pre-empt their claims. We knew that the police report and even the newspaper reporter assigned the blame for this collision to Marilyn. They stated that she was crossing SR44 from north to south when the truck hit her car broadside before the truck driver could do anything.
We knew that the potato chip company based their defense on that police report. They named the police officer as a defense witness. He was not in the room yet but we were sure officer George Kozlowski was going to be available to back up his report. His presence was not necessary. Normally, the report of an impartial police officer is adequate evidence. The defense did not need to call him to the stand unless we argued about the report. If I did not offend George by making him sound stupid for his mistaken conclusion, he probably would not demand to rebut me.
Here is how that went.
We knew that Peter Piper people had submitted the police report to the court as evidence. We surprised them by using their materials. These were pages enlarged to fit 30 by 40 display boards. The jury saw the front page of the report with mostly raw data. Another page showed the officer’s narratives and a third page showed the diagram of the scene, as he saw it. The jury could see that several boxes are checked. The explanation for the check marks was in the codes on the second page, which indicate that Officer Kozlowski determined that the collision was the fault of a young woman who pulled her car out and surprised the truck driver.
Our side was smart to introduce this material before the other side could offer their explanation. The jury already knew, from the opening statements, that Abrams claimed the police report was incorrect. Abrams begins to ask me about my expert opinion of the report and its conclusions.
Q: Mr. Thelin. You have examined this report closely, correct?
A: Yes
Q: Do you have reason to believe that it is incorrect?
A: Yes
Q: Why is that? What did the officer do wrong?
A: Officer Kozlowski did not do anything wrong.
The buzz increased in level.
Q: Well now – why do you say that, if the report is incorrect?
A: He had to do his job under difficult circumstances. There were many cars around when he got to the scene. Many of the cars and trucks on SR44 could not choose to use a detour. The officers had to contend with a crowd, a wrecked car and an injured girl. The first priority was to attend to the injured. Then he had to clear the road and then to get traffic moving again.
Q: Mr. Thelin – is that all he had to do?
A: No, the officer assumed that the girl in the car only unconscious. Later, when the ambulance and the fire trucks arrived, he learned that the injury might be more serious. People can die from a hard knock on the head.
Q: What does that mean to him?
A: The police department rules say that if there is a possibility of a death or permanent injury within 24 hours, he must treat the crash with a full work up. A full workup for the record requires taking many photos. It requires recording interviews. He must mark and measure things like the point of impact, the points of rest, and the beginning and end of all related tire marks. The officer must do all that before he can have the vehicles removed. Then he can let the traffic through.
Q; Do you find that Officer Kozlowski failed to do that?
A: No. At first, he would have been the only officer at the scene. Shortly afterward he had Emergency Medical Technicians - EMTs, firefighters and tow truck operators milling around, along with the crowd and the angry potato chip truck driver.
Q: Angry truck driver?
A: Very much angry. Several witness spoke of the anger of the truck driver. He was blaming the girl for wrecking his truck and making him late for his route. He even screamed to the officer that it was the girl’s fault for pulling out from the stop sign at the last minute and surprising him with no time to avoid her. All of that information was in the supplementary pages of the police report.
Q: Well. Why didn’t the officer make note that there were marks on the road about 25 feet up the road to the east? Shouldn’t he have noted something there?
A: I can imagine that there were cars and trucks parked all along the shoulder of SR44 and even some on CR333. Beside, the other responders and some of the bystanders were milling around, if this scene was typical. Based on what Jason said, Kozlowski had no reason to push through the crowds and go looking for evidence way up the road. What is tragic about this is that the officer did not get to meet with the parents of Marilyn. Their home was far enough away to the south of the intersection and somewhat over a small hill so that they had no reason to go to the corner. There had been numerous collisions at that spot over the years they lived there.
Q: What does that mean?
A: The Smithers did learn about the collision when the newspaper reporter, David Johnson, came to the house later. He got the girl’s address by peeking over the officer’s shoulder at the driver’s license. After discovering that their daughter had been hurt and was taken to the hospital, the Smithers went directly there without stopping to talk to the police.
That was not good. The parents knew that Marilyn would not cross the highway. They were certain that she was careful about turning left at this dangerous corner. They did not find out that the police and the newspaper story blamed Marilyn until the saw the next issue of the town newspaper a week later. After they saw the story about the ranting of Jason Jones, they told me that called you, Mr. Abrams.
Q: Well what happened to the report the officer made?
A: Your preliminary report to the court was the first thing that alerted the police department that we claimed the report was wrong. That was months later, as you know. I am sure that the police department became concerned about that. Until now, they probably did not know that I would not say that their police work was sloppy or bad.
JUST A LIGHT BEATING
At that time, the defendant’s attorney saw that there would be a problem. Could they convince the jury that my story was baloney, and the police report was precisely correct? They saw that they might not want the officer on the stand to back up his story. First, the cop would be relieved that I did not fault him. Second, if Abrams was kindly to the officer on cross-examination, the cop just might agree with the conclusions I had just made.
The only hope for the defendant would be to beat me up when they cross-examined me. They could hope to get me so upset with tough questions that I would bad-mouth the cop. If the officer heard that I did that, then he might cooperate with the defense by making a strong defense of his report.
In the Smithers case, I just got a light beating. Mr. Harangue is a gentleman. I have faced a few lawyers for the other side that I liked, and I sensed that they liked me, as a person, too. Harangue is a good lawyer, working defense for a large company. He is too smart to beat me up badly in front of a jury of mostly rural men and women. He has seen the reports. He knows of the good reputation of the CSI firm. He also knows that I did a good job of making the jury like me as a person. Beating me up under those circumstances will earn me some sympathy. That would not be good for his team. I will not take much time to tell you about my cross-examination by the defense.
WHY I DO GET BIG BEATINGS
Sometimes, when people ask me what I am doing for a living I say that I fight dragons for a living. Usually the dragon wins, but sometimes I win. The dragons are the big car manufacturers with large staffs of lawyers and experts. When fighting with the big dragons, I get a real beating. I get beat up good on cross-examination. When a lawyer for the big firms asks questions designed to make me look stupid, that hurts. He wants to convince the jury that I am making up my story. In some cases, the beating is a knockout. I hate it when the jury has been convinced with trickery that I do not know what really happened. I hate it when the lawyer says, with the sound of great authority, that I just do not know the true cause of the injury.
The auto companies really want to work me over because I specialize in Products Liability cases alleging defective design of the safety-related aspects of cars and trucks. Loosing a case about defective design of the vehicle means that all of the others contain the harmful defect. This opens the company for many similar suits – with the precedent.
A design case is much worse than a case that alleges that there was a bad day at the factory. That is called a manufacturing case because we are claiming that just a few cars were assembled improperly or damaged elsewhere. Companies have good reason to settle such a case quickly.
General Motors has a real grudge with me because they see me as a turncoat and a whistle blower. I once worked with the GM Legal Staff. Their lawyers and other engineers like me were defending the allegation that Chevrolet people carelessly designed the Corvair so that it could become suddenly and unexpectedly uncontrollable. Worse, plaintiffs alleged that Chevrolet management knew this but put the dangerous Corvair in the market anyway. That is bad news. Such a claim, if proven, would make General Motors subject to high cost punitive damages – big dollar awards.
I was enthusiastic, at first, to be defending my employer. I did know a lot about vehicle handling, and could write. My bosses assigned me to read everything we could find that Ralph Nader had discovered. GM was afraid of what might be used against GM in court. Unfortunately, for GM, reviewing every story or report that we knew or suspected was in the enemy’s hands, backfired.
Many Corvair cases involved a spinout on the road where the car overturned. The GM defense was that the driver was at fault for pushing the Corvair too hard. I agreed with Nader that stupid driving does cause most accidents. Worse, for GM, I agreed with Nader that poor design of automobiles would make the resulting injuries worse than they would have been otherwise. I did not last long at GM after I said that out loud.
When I am in a case with any automaker, particularly against GM, there are things I have to guard against. For instance, the carmaker brings in a hired gun from another city specifically to humiliate me. The lawyer is well dressed and polished. He speaks condescendingly to me. Early on, I have given my little speech about being hard of hearing. I need to read lips. This man frequently turns to address the jury so I can not see his face. I must ask him to face me so that I can understand the question. Please. This goes on several times. Eventually he walks farther from me toward the far end of the jury box with his back to me. He is still asking questions that I cannot understand. Finally, the judge speaks up. “Mr. (whatever)”, he says, “Please, address your questions to the witness. Speak up. The court reporter seems to be having a hard time following you, as well.”
The questioning typically goes like this if we have a largely rural jury.
Q: Mr. Thelin, how are you this morning?
A: Fine, thank you.
Q: Did you fly into the airport at (big city nearby)
A: Yes
Q: When did you come here?
A: Two days ago.
Q: Did you get a nice rental car to get here?
A: Yes
Q: Where did you stay last night?
A: At the (fancy hotel chosen by my client) nearby.
Q: Oh, that is a very nice place isn’t it?
A: Yes
Q: Where did you have supper?
A: At the restaurant where I talked with Mr. (plaintiff lawyer).
Q: They have really nice meals there, don’t they?
A: Yes
Q: Mr. Thelin. When you are done here today, are you going to fly home?
A: I hope so.
Q: Seems like a good life being an expert, huh? How much does attorney pay you?
A: I get $225 an hour when I am testifying. I also get my expenses paid. You know that.
Q: So, in one day of easy living you get to make thousands of dollars, right?
He does not wait for the answer. He walks back to his table to pick up papers. He made his point. Now the jury has less sympathy for poor deaf Carl. Stinker!
The dragon will also send a zombie after me. Zombies are the well-qualified expert witnesses who defend large automobile manufacturing companies. Big auto companies have the power to turn good men and women into zombies, as I call them. The power to do this comes from the ability to pay these employees much more than an ordinary engineer, or scientist, could expect.
These experts are people who tell the juries exactly what the company needs them to say. Big carmakers protect the career of their spokespersons. If our people expose him or her for providing false testimony, the company will keep that person well employed. A company-employed zombie will be encouraged to retired early if he is very successful. After establishing his independent consulting business, he would get even more employment from other dragons, not just the one he left.
The defense team always gets to bat last, unless the plaintiff can justify a rebuttal. In most cases after my testimony, the jury will hear from a zombie who will be much younger, holding at least one PhD, with years of experience in some fields of “research”. This well-dressed person will be brazen enough to talk about the “alleged” defect as if it were something the auto company purposely planned for some incredible reason – and he is proud of it. The jury has to wonder – how could Mr. Thelin not see that?
AN AIRBAG?
During our early conversations with the Smithers family they asked me whether it would have been better if Marilyn had an airbag in her car. The car in this case was a 1993 Pontiac Grand Am. That model has door-mounted seat belts for the front seat. The next 1994 model introduced a driver-only airbag. The front passenger side still had the door-mounted seat belt. I said to the family I could tell that the girl was using her seatbelt. Her knees were lightly bruised from hitting the lower dash. Her left clavicle and shoulder had the typical strap bruise. Her head swung forward and down as her chest rotated forward and leftward over the shoulder belt. The front top of her head hit the windshield A-pillar when that part of the car came inward and backward toward her. When the car slid back to the point of rest with its right side wheels in the ditches, it stopped quickly. Marilyn fell back to her right, with only the lap belt holding her on her seat.
Abrams asked this: Would the airbag available in the 1994 model have made a difference in her injuries?
My answer was emphatic: Of course. The air bag people designed the air bag to shield the head, neck and upper thorax from hitting the inside of the car. But, due to the angle of impact, Marilyn’s head might have slipped slightly to the left of center of the airbag. She should not have contacted the A pillar but maybe her head would have hit the roof rail above her door. She still would have had bruises on her knees and knuckles. Even if the collision rendered the girl unconscious, I am certain that she would have been able to talk before going to the hospital.
I wish there had been an opportunity to talk about this at the trial. For years, after I began this work in 1983, there were cases like this one, where I could say, with confidence, that an air bag would have provided better crash protection. However, the auto companies claimed that the available seat belts met the Federal requirements.
Auto company lawyers were able to persuade the courts in several states that the Federal Safety Standards preempted any claim that they should have offered more advanced technology.
The car companies strongly objected being forced to put airbags into cars. They had fought seatbelts, too. The manually adjusted straps installed in the early 1970s were poorly arranged and uncomfortable. Few people used them. Then, General Motors offered a few expensive cars – the big Cadillac, Buick and Oldsmobile trio – with optional airbags. From their perspective, that was smart. Adding optional air bags would raise the sale price slightly on those big cars. Sales representatives had no incentive to sell them.
Using this market failure they said that if the government forced car companies to equip every car with one or two airbags that would ruin sales in those markets. However, in 1985, Mercedes-Benz took a bold step of putting airbags in their European models. That broke the dam. Now buyers could see that these things were desirable. The rest is history.
VERDICT AND SURPRISE
Attorney Abrams’s closing argument was strong. It was easy – he had a very sympathetic client. No one on the jury wanted to find fault with Marilyn. The nature of this intersection was not like having a driveway coming out on the inside of a curve in the road. There the sightline is so short that anyone entering the highway would be taking a risk. There would be signs elsewhere on the road that warn of blind driveways. This was not a curve but someone like Marilyn had to shoot out when she thought the way was clear on her right where the sightline was short. It was reasonable for her to hope that someone coming from the left with plenty of view, would at least slow down for her.
The defense lawyer could do nothing but talk about the police officer’s report. He emphasized that the officer was there at the scene. Attorney Harrange said that should trump the CSI expert’s after-the-fact opinion. Technically, our report was based on detective work we did years later, he said.
The jury was back in an hour. The Smithers’ share was 2 million dollars after expenses and lawyer fees were paid. Her parents and siblings would use this money to oversee good care for her. Several months later, Abrams called the CSI offices to tell us that PPPC had appealed the verdict. They based the appeal on the judge’s obvious bias toward the plaintiff. He fell in love with our “movies” they said. They won the appeal. Secretly, I agreed. The computer animation did fascinate Judge Grimm. He allowed us to replay it several times. I expected the defense to object to those too-frequent repetitions
Therefore, there was no money for the Smithers after all. There was no money for Mr. Abrams. The CSI firm and workers were already paid. We work by the hour - win or lose. It would be a criminal offense for an expert witness to have any stake in the outcome of a trial. This is supposed to remove the temptation to fudge an opinion for personal benefit.
CSI had to plan to do it all over again. So did the potato chip company. Both sides would spend more money for a trial, which would end the same way, I believe. Recall that I told you earlier that automakers really hated a Products Liability case that might establish that there was a design element built in every one of some model car for a number of years that it was manufactured. The size of the jury award would balloon greatly if the plaintiff showed that the management knew of the defect but ignored internal advice to correct it. A finding of a defective design responsible for making worse the injuries in a predictable crash would make a very expensive precedent. Similar suits would be sure to follow.
The Peter Piper Potato Chip Company did not face that major risk. One bad driver was gone. We had argued their hiring and training practices were capable of being improved. PPPC national headquarters intervened. They rationalized that the case would go the same way even with an impartial judge. They chose to save the money for a good purpose. They offered to settle for the original amount. Nice company. Rare
POST SCRIPT
As I was preparing this story, I telephoned the lawyer who I call Mr. Abrams in this story. The case was tried in 1995, so I asked about him and the family. Even though I had changed their names and exact locations, would anyone be offended? No. Well, how is the care for “Marilyn” doing – did she move to a facility? “No. She died a few years ago. I was not told why. Sad – she was a beauty queen. Oh, by the way, he said, do not give the defendant so much credit for being nice. Their bean-counters made that decision.”
The PPPC was able to settle the Smithers claim without a danger of encouraging a large number of similar cases – such as class action cases involving dozens or even hundreds of plaintiffs. Imagine a case alleging that an ingredient of a new variety of bagged snacks was harmful to many who ate the snacks. For instance, if peanuts (or peanut oil) were a small portion of the unique flavor this would be poisonous to hundreds of allergic buyers. The company’s defense would be rigorous – the company could argue that they listed the peanut component of the snack food in the standard list of calories and other things required for every non-organic food.
There are benefits to size for plaintiffs and defendants alike.
Large defendants are industries, typically manufacturers of products like automobiles, kitchen and home appliances, medicine and medical devices. The advantage of size is inertia. The defense can stall for years and make the cost of preparation very high – encouraging the plaintiff lawyer to give up or settle cheaply.
Size for attackers of industry requires a collection of numerous cases. Examples are the tobacco suits, the Vioxx cases, and the asbestos litigation. The cost and work force required to defend hundreds or thousands of cases can overwhelm a company or even a whole industry.
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