April 22, 2016

During the past several decades I've been working on a book about personal injury trial practice which is nearing completion. It's a work in progress and has had a number of edits. By the time the book is published, hopefully this year, the chapters used in my blog will probably have been edited at least one more time. They say that it took the great Russian novelist, Tolstoy, six years to write War and Peace. It's taken me over twenty years to complete this simple book about cases I've handled beginning with my work at the Harvard Legal Aid Bureau in the 1960's.

I hope that you enjoy the chapters. If you do, feel free to send an email to my website. If you don't, then don't buy the book.

Wishing you fulfillment in all of your endeavors,

Jan Weinberg


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. In the 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 a judgment 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 a judgment 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. In my 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. If that 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 in a 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. In other 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. I intended 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.

I recall 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. If the 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. Kim attacked 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 overweight, 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. In local 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. If having a likeable plaintiff is helpful to winning, having an unlikeable defendant is like throwing gasoline on a fire. If the 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. In other 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 if l would stop asking him all "these stupid questions" his testimony would require a lot less time. The jurors 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 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. In those days jurors weren't permitted to take any notes. In my closing argument I had 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.