It was early 1983 when I received a phone call from my friend and
colleague, Tom Jordan. “Tiny”, as he was known to his friends, weighed
over four hundred pounds. He was a kind man with a great sense of humor.
Tom’s Texas drawl over the phone sounded concerned. He explained that
he was representing the parents of a ten year old girl who was struck
and killed by an insured of Allstate as she crossed a two-lane road on
her way home from school in Kailua. Kailua is a beautiful town on the
windward side of Oahu with a country feeling. It’s where President Obama
rents a beach-front house on his annual Hawaii Christmas vacations.
Tom explained that the policy limits on the driver who struck and
killed the girl were only twenty-five thousand dollars. He had submitted
a settlement demand for the policy limits which Allstate had rejected.
Allstate hadn’t offered a dime in settlement. I was familiar with this
hard-nosed attitude of Allstate, having experienced it early in my career with the Matsumoto case discussed in Chapter
eleven and in other cases as well. Tom asked for my help and agreed to
send me the file.
Within days I received a thin case file from Tom. The police report
showed that the collision occurred within a pedestrian cross-walk and
near the center of Kailua Road, a two-lane roadway. The driver of the
jeep which struck Kristen claimed to the police that the girl had
suddenly jogged into the road and there was no time to avoid a
collision. There was no evidence of speeding or alcohol consumption by
the driver.
Allstate cavalierly regarded this case as a classic “dart-out.” This
defense is frequently asserted, particularly where a child emerges
suddenly from between vehicles or objects which obscure them from
drivers. I had second-chaired Dave Dezzani when he successfully defended
a dart-out case for a motorist whose vehicle struck and killed a child
in Waikiki. After reviewing Tom’s case file, I visited the accident
scene. I observed that Kristen would not have been obscured from the
driver as the driver approached the cross- walk on Kailua Road. The
paint on the cross- walk was very faded and barely observable from a
short distance away. However, after reviewing the file and visiting the
accident site, I felt that Allstate’s rejection of a minimal policy
limits demand was wrong and that it would pay much more than its policy
limits by the end of the case.
The death of a child is the worst thing that can ever happen to a
parent. Litigating a wrongful death case in some ways intensifies and
prolongs the grieving process. In this case, I advised Tom to give
Allstate a chance to reconsider its rejection of the policy limits
settlement demand. I believed that Allstate’s corporate arrogance would
lead to a second rejection of the policy limits demand. In the unlikely
event that Allstate accepted the demand, I felt the parents would be
spared the agony of litigation. Inthe 1980’s wrongful death cases
involving minor children had far less jury verdict potential than the
same cases today. I wanted to spare the parents the stress of years of
litigation. At the same time, I also felt that if, as expected, Allstate
rejected the second settlement demand for policy limits, it would then
be digging its own grave, pardon the expression.
Under the doctrine of bad faith, if an insurance company rejects a
settlement offer, and if there is ultimately ajudgment in excess of the
insurance policy limits, the insurance company will be liable for the
entire amount of the judgment. The insurance company owes its insureds a
fiduciary duty to protect their interests. After ajudgment is obtained
against an insured, the insured is legally entitled to assign his or her
contractual right against the insurance company to the injured party to
be paid by the insurance company for the full amount of the judgment.
In addition, the insured retains the right to sue the insurance company
for emotional distress damages related to having an excess judgment as
well as for punitive damages. Inmy view, Kristen ‘s case would
ultimately have to be tried to a verdict. We would then subsequently sue
Allstate on behalf of them and Kristen’s estate for the excess
judgment. Ifthat occurred, Allstate would be on the hook for far more
than its twenty-five thousand dollar liability limits.
As predicted , Allstate summarily rejected the second settlement
demand for its minimal policy limits. We promptly filed suit against the
driver whose jeep struck Kristen and also against the City & County
for its failure to maintain the cross- walk ina safe condition.
Allstate retained a partner in a prestigious law firm to represent the
jeep driver. This partner was experienced in defending personal injury
cases for insurance companies. He was known to be somewhat of a loose
cannon, prone to being sarcastic, and had a bad temper. By choosing this
attorney to represent its insured, the driver of the jeep , in this
lawsuit, I believed that Allstate had committed another serious blunder.
Kristen’s parents were psychologically devastated by the loss of their beloved daughter.
No doubt their loss was a factor in their divorce several years later,
as so often happens when there is death or serious injury to a child.
The enormity of their loss, coupled with my being the father of two
young children, placed a lot of pressure on me to win this case. Losing
was simply unthinkable.
As I’ve mentioned before, expert witnesses are critical to winning
cases. I retained an experienced expert in both accident reconstruction
and highway design, Harry Krueper, of Bakersfield, California. Harry had
testified in the California and Hawaii courts for decades. A licensed
civil engineer, Harry had more courtroom experience than ninety-nine
percent of the lawyers who hired him. Most of his testimony would focus
around a re-creation of events that likely occurred from the moment the
driver would have first observed Kristen alongside the roadway,
calculating the time it took for the driver to react and apply her
brakes, the speed of impact based on Kristen’s final resting place on
the roadway , and other factors. Krueper was also retained to testify
about the negligence of the County in failing to re-stripe the faded
cross-walk markings.
I decided to retain an expert in biomechanical engineering named
Vladimir Lieskovsky, a Stanford University professor. Biomechanical
engineering is in general the application of the principles of
mechanical engineering to biologic systems. Dr. Lieskovsky was retained
to evaluate the issue of whether Kristen would have survived the
collision without suffering serious injury if the jeep driver had
reacted properly and reduced her speed. Inother words, if the impact
speed between the jeep and Kristen had been significantly reduced by
driver reaction prior to impact, would that likely have made a
difference in the outcome.Iintended to tie Dr. Liekovsky’s testimony with that of Krueper to demonstrate that even if
the driver had been unable to stop entirely prior to the impact, if she
had responded reasonably to roadway conditions the speed of her vehicle
would have been reduced to the level where Kristen would likely have
survived the collision. Granted, this was a huge stretch in terms of
having a scientific foundation which would survive a challenge at trial
let alone an appeal. It was a risk I was willing to take.
The standards today for permitting expert testimony have grown much
stricter than they were in 1985. I don’t believe Dr. Lieskovsky’s
testimony would survive legal motions to strike filed in today’s
stricter legal environment.
We were fortunate, once again, to be assigned to Judge Ronald Moon,
who was the trial judge in Glady McCool’s bad faith case against USAA.
Since there was no possibility of settlement, I wasn’t concerned about
any pressure Judge Moon might bring on the parties to settle the case.We
could have the benefit of Judge Moon’s experience and judgment to make
correct decisions on the law and on the evidence. Having a good judge
increases the predictability of rulings on legal motions and also
protects the record in the event of an appeal.
The case began trial in 1985. Before trial began, I had settled the
claim of the County for negligently maintaining the crosswalk for thirty
thousand dollars. The driver had acknowledged during her deposition
taken earlier in the case that she had driven this roadway for years and
was fully aware that there was a cross-walk where Kristen was crossing
the street. It would have been counter- productive, under the
circumstances, to claim that the County’s negligence in failing to
re-paint the cross-walk markings was a legal cause of this accident.
Irecall that Krueper testified that the speed of impact was thirty
miles per hour. The posted speed limit was twenty-five miles per hour.
The driver told Allstate’s adjuster in a recorded statement taken within
days of the accident that her speed was thirty-five miles per hour when
she first observed Kristen with two other young girls off the road to
her right in front of her.
The defense attorney strenuously objected to allowing Dr. Lieskovsky
to testify about whether Kristin would have survived a lesser impact
speed without serious injury. Kim argued that Dr. Liekovsky’s testimony
lacked a scientific foundation. Judge Moon ordered that Dr.
Lieskovsky appear in court in the afternoon to undergo a “voir dire.”This is a procedure where the jurors are excused in order to permit the party opposing the
introduction of expert testimony to question the expert witness on his
qualifications and the basis for opinions. Ifthe judge finds that the
expert lacks appropriate qualifications or that the opinions are
inadequately supported by reliable sources, then the expert will not be
permitted to testify.
This was pre- cell phone era. The problem was that Dr. Lieskovsky was
on a flight to Honolulu when Judge Moon issued his ruling and wasn’t
landing for several hours. When I finally was able to make contact with
Dr. Lieskovsky, he needed to appear in court without delay. Lieskovsky,
who was at the Honolulu airport, sounded a bit confused. Then he
confessed that he had drunk three scotches on the flight, thinking that
he would not be testifying in court until the following morning.
Kim aggressively examined Lieskovsky, who was at least not visibly
intoxicated. Judge Moon scrutinized this witness with a skeptical look
on his face. After the voir dire concluded, Moon hesitated for a moment
before announcing that,just barely, Lieskovsky had survived voir dire
and could testify. I breathed a sigh of relief. Lieskovsky walked to the
exit door of the courtroom to leave. As he opened it, the jurors were
returning from their break. He stopped and held the door open for them.
The first juror in line was an attractive, dark- haired woman in her
late thirties. I saw the way she looked at Dr. Lieskovsky. Vladimir was a
handsome man in his fifties, with thick mane of silvery hair. Dressed
in a navy blue blazer with a red tie and white shirt, he must have
looked quite attractive to this juror, who turned out to be the
foreperson. My only advise to Lieskovsky as we prepared that evening for
his testimony the next morning was to make eye contact with this woman
and “make expert love to her.”
Trial opened the next morning with the testimony of Dr. Lieskovsky.
After a few foundational questions as to his employment and professional
qualifications, I asked a very unusual question, one which has probably
never been asked of any other expert witness. I slowed my speech rhythm
and said, “I hesitate to ask you this question, but feel I must. Isn’t
it true that you are a convicted felon?”The courtroom feel eerily
silent. Judge Moon shot me a questioning look.
Lieskovsky paused a moment before answering,” Yes, I am a convicted
felon. But, please, may I explain. As I told the jury , I am a
Hungarian. You may recall that in 1956 the Soviet Union sent tanks and
troops to overtake our country. I was a young man then and with other
young men filled coke bottles with gasoline and inserted rags in them.
We would run up to the tanks, light
the rags, and throw the bottles under the tanks. We called ourselves
‘freedom fighters’. The Soviets called us ‘terrorists .’ I was convicted
of terrorism and spent two years in a Soviet prison in solitary
confinement.”
Lieskovsy spoke in a mellifluous tone of voice, with a distinct
Hungarian accent. His performance was operatic.He was mesmerizing. He
spoke directly to the juror who seemed to be attracted to him. She had
tears in her eyes as he finished his answer. The Hungarian dance of love
looked like it was succeeding.
One part of the cross- examination of Lieskovsky stands out. I’m not
sure if this occurred during his voir dire or when he was cross-
examined in front of the jury. Lieskovsky’s premise, if I recall it, was
that if there had been an impact speed of ten miles per hour or less,
Kristen would have survived the impact without serious injuries. The
basis for this opinion was a study made of children who had fallen from heights and landed on a hard surface.
Those who landed with an impact speed of less than a certain amount,
survived, and the others died. Kimattacked Lieskovsky on this study,
challenging its validity on the ground that there were only eighty cases
in the study. Lieskovsky’s answer didn’t really address the scientific
basis for reliance on the study. He merely said, with perfect timing,
“You can imagine, Mr. Kim, that it was very difficult to find volunteers
for this study.”
I also called the jeep driver as an adverse witness in the
presentation of my case. She had been seated in court next to Kim
throughout the trial. Young and somewhat over weight, on the day I
cross- examined her she wore a brightly colored muumuu that exposed
cleavage and too much of her breasts when she leaned forward. She had
apparently been given no instruction by her lawyer on how to dress
appropriately for trial or she had ignored it. I had also found her to
be somewhat rude and angry. Inlocal parlance, she would be referred to
as a ”titta.”The word has anything to do with the breasts, but is used
to reference a sharp- tongued, aggressive local woman. I didn’t get the
impression that the driver was a mean person, but just that she was just
rough around the edges.
The louder and ruder the driver got during my examination, the softer
and more respectful I became. Ifhaving a likeable plaintiff is helpful
to winning, having an unlikeable defendant is like throwing gasoline on a
fire. Ifthe driver of the vehicle had been a sweet, older woman of
Japanese ancestry, driving home in her Honda Civic after visiting her
husband of fifty years at a convalescent home, it doesn’t take a great
deal of imagination to see how different this case would have been.
After I rested my case, the defense placed a University of Hawaii
Professor in civil engineering on the witness stand. He was experienced
in testifying about roadway design and accident reconstruction. I had
retained this expert in several cases. At the time we did not have many
local experts in accident reconstruction to choose from. This expert
witness was local, which tended to bolster his credibility with jurors.
On the other hand, he lacked the communicate effectively with jurors and
to withstand cross-examination.
The defense expert witness also had an unfortunate habit of misusing
his calculator. This was a pre- computer era where calculations were
done on hand-held calculators. Inother cases I had observed him whip out
the calculator as if it were a lethal weapon. Then he would
emphatically pound his fingers on the keys at high speed with a look of
grim determination. After using the calculator, the expert would almost
invariably look up with a somewhat confused look on his face, commenting
that he needed to re-do the calculations. His awkward mis-calculations
were funny enough to have been used as a regular skit on Saturday Night
Live.
When I cross- examined him, the expert provided rambling, narrative
responses instead of simple “yes” or “no” answers. This continued for
over one half hour. Judge Moon looked annoyed and requested that counsel
approach the bench with the court reporter. He asked me why I wasn’t
objecting. I responded that I was o.k. with these long-winded responses.
Judge Moon shrugged his shoulders and dismissed the jury for lunch.
On return to the witness stand after lunch, before I asked my first
questions, the expert witness immediately blurted out to the jury that
ifl would stop asking him all “these stupid questions”his testimony
would require a lot less time. Thejurors appeared somewhat taken back by
his statement as it was apparent that he had not been responding
directly to my questions. I apologized to him and said that if I were
one of his engineering students I would have to sit next to the top
student who answered exam questions with big letters in order to pass.
The jurors laughed. Even Judge Moon looked a bit amused, although he was
growing impatient.
During the lunch hour I had pushed Harry Krueper to re-work his
calculations based on the driver’s testimony at trial. I intended to set
a trap for Allstate’s expert. Krueper was annoyed about having to work
over the lunch hour, but finally produced a sheet of paper with his
calculations on it. The bottom line was that if the driver had done
nothing else to avoid the collision after she saw Kristen jogging
towards the road other than to have moved her vehicle one foot to her
left, so that her left tires were on the centerline, the jeep would not
have struck Kristen.
By the end of of his testimony, I could see that the expert was
tired. I told him that I would be concluding my examination with a
hypothetical question. This is a type of question used to examine expert
witnesses where the witnesses are asked to assume a set of facts.
Objections can be made to the hypothetical on the grounds that it lacks a
foundation, or misstates the evidence. I was careful as I asked the
hypothetical to have the witness agree to each of the facts upon which
the question relied. My final question to him was to calculate the speed
of impact between the jeep and Kristen if the driver had moved her
vehicle to the left one foot at a certain point prior to the collision.
The professor immediately whipped out his calculator from his front
shirt pocket and began to pound the keyboard with that determined look.
After pounding away for several minutes while the jury and judge
watched, he looked up, as I had expected, and announced that he needed
to do his calculations over again. I wasn’t the least surprised and told
him to take his time, that accuracy was more important than speed. He
took several more minutes and then stopped. He had a very satisfied look
on his face. I then repeated my last question to him slowly and
dramatically, concluding with the words “… so tell the jury,what would
the speed of impact have been between the jeep and Kristen?” His
response, as I had certainly hoped it would be, was “there wouldn’t have
been any impact.” I glanced at the jurors who had a look that told me
they fully understood the pit into which the expert had not just fallen,
but into which he had jumped.
At the conclusion of the case, I moved to have the County dismissed
from the case. The testimony at trial was clear that the driver was very
familiar with the accident site, was aware of the cross- walk’s
location, and had stopped many times prior to the accident to allow
students to cross after school hours.Moreover, Allstate’s attorneys had
not introduced any evidence supporting the negligence of the County. I
was nevertheless concerned that if the County weren’t dismissed, it
would appear on the special verdict form for the jury’ s determination
as to negligence and legal causation. I wanted to avoid any confusion or
prejudice arising from the “empty chair.”The County had not attended
the trial. Judge Moon granted my motion, which was later upheld by the
Hawaii Supreme Court on appeal.
The jury returned a verdict for $557, 315.32, the exact amount which I
had requested in my closing argument. Inthose days jurors weren’t
permitted to take any notes. Inmy closing argumentIhad acknowledged a
small degree of comparative negligence of Kristen. On the date of her
tragic accident, she had failed to stop at the curb and look for traffic
before crossing the street within the cross-walk , as her parents had
trained her to do. The jury verdict, although low by today’s standard,
was significantly higher than other Hawaii cases involving the wrongful
deaths of minors. In 1985,jury verdicts and settlements in Hawaii for
minors in wrongful death cases were commonly at or below $250,000. In
the 1970’s wrongful deaths of minors were often settled for around
$50,000.
After the jury verdict was rendered, Judge Moon denied the
defendant’s motion for a new trial and awarded some pre-judgment
interest. Even though Allstate was appealing the verdict against its
insured, the jeep driver, we were prepared to begin the next phase of
the case, suing Allstate directly for its bad faith refusal to settle
prior to suit for its policy limits of twenty-five thousand dollars.
Source Link: Hawaii Injury Lawyer
