Understandably, each party in a lawsuit wants to win. Based on English “commonlaw,” the U.S. legal system took four centuries to evolve, and along with it, sets of rules, precedents and ethics. While state-by-state variation is considerable, key principles of justice and legal ethics are common to most states. But the liberties taken with these ethics can be striking. They can turn a genuine accident and a pure tragedy into a mockery of justice and a snake pit for greedy victims and their zealous attorneys.
Last year, I helped defend a school district whose school bus driver was accused of running over a 20-month-old baby. The vehicle could have been a transit bus, a motorcoach, a school bus or any other vehicle owned by a public agency or private contractor with deep pockets. It just happened to be a school bus. It also just happened that the victim was the daughter of the County’s Deputy Prosecutor. That lies and corruption would follow was almost certain, as they did.
Dust, Clout and Favors
In the arena of public transportation forensics, police accident reports are often spotty, and the conclusions they fail to draw are often critical to the case. Often, this trend simply reflects one set of civil servants protecting another from liability exposure and large damage awards, and the depositing of chips in the favor bank. Occasionally, one finds high quality investigations – particularly when the defendant is a private contractor. Regardless, accident reports crafted, much less fabricated, to condemn the defendants are rare. Hardly surprising, the exceptions can be ugly.
Around noontime, during a school bus’ pickup of kindergartners, Baby Doe’s Mom and five-year-old brother heard the roar of the son’s approaching school bus, and he raced out the front door in pursuit of the bus. Dashing out to prevent the obvious risks this pursuit involved, the five-year-old’s Mom left her shoeless 20-month-old baby in her high chair (supervised by a third sibling – a cognitively-impaired three-year old), zoomed down the front steps, and caught up to her son on the lawn. Seeing these events start to unfold, the bus driver stopped his bus almost immediately, in his travel lane, with its flashers ablaze and its stop arm engaged – further preventing the kindergartner/rider from running down the street chasing his bus to its designated stop at the corner, and similarly impeding the bus’ passage by any approaching motorists. But instead of signaling for the driver to wait, returning inside to shoe and grab the baby, and (with the baby) popping back outside to then cross with her five-year-old son, the Mom left the baby in the high-chair, crossed with the five-year-old, and spent roughly a minute chatting with the driver about the family’s pending vacation schedule and related transportation logistics. Thinking his kindergarten passenger might have been barefoot, the driver actually asked the Mom about the shoes she was carrying: The mother replied that they belonged to her baby daughter, who was “inside the house.” Of course, the baby was not, but instead, had followed her Mom out the door and, presumably spotting her Mom’s legs at ground level on the curb side of the bus, crawled beneath it toward her Mom – and was crushed by its curb-side rear tires as the bus pulled forward from the stop.
Following the infant’s death (her back, shoulder and buttocks were covered with a pair of parallel tread marks), the police actually conducted a DNA analysis of the bus – a zeal and public expense virtually unheard of in civil lawsuits. This analysis uncovered not so much as a human hair or fingerprint on either front tire, front bumper, front cap, or any part of the bus’ underside – with the sole exceptions of the curb-side rear tires, fender well and mud flap. Nor did this analysis find a droplet of grease, fluid or tissue fiber on the infant’s pajamas. Of course, to transform this tragedy into a profitable lawsuit, the police and plaintiff’s counsel had to place the victim in front of the bus. How they accomplished this goal reflects the worst of the American justice system, a vacuum of accountability, and a method of blame-placing about which transportation professionals and non-professionals alike should be deeply ashamed.
Tricks and Treats
In the land of reason, it would seem impossible for the victim of this tragedy to have been knocked down by the front bumper, cleared the front axle stem (whose lowest point lay only 9½ inches above ground), and then repositioned so as to get crushed by the rear tires… with the bus pulling out in a straight line. Because the driver improvised a stop immediately, and thus stopped his bus in the travel lane, there was obviously no need for him to steer his bus to the left during its pull-out. So, with no genuine evidence of any kind, the police, plaintiff’s counsel and plaintiff’s expert witness simply made it up:
- Contradicting what the driver told him, the investigating police officer invented and recorded the fabrication that the driver pulled his bus to the left as it departed from the stop. Neither the driver’s actual written statement nor his deposition testimony were consistent with this ruse.
- Similarly, the police identified a “clean mark” on the bumper that lay conveniently at the victim’s shoulder height. Of course, on this otherwise motley, scratched, dented and discolored bumper, there was no consistency of paint, color, texture, dust, dirt, grease, grime or anything else – much less any useful DNA.
This “clean mark” and the phantom left-turn pull-out (a pull-out that would have positioned the bus on the wrong side of the street) became the lynchpin of the plaintiff’s case. The various police witnesses lied about it passionately, and the shill hired as the plaintiff’s expert witness parroted and swore to it.
Coordinating my work with that of a terrific reconstructionist, our defense team made mincemeat of the plaintiff’s arguments in our depositions. During selected moments of mine, I made opposing counsel wince: When he asked me how the victim could have seen her mother’s legs and feet when she was on the bus talking to the driver (the lowest point of the bus’ body lay about 20 inches above ground – practically at eye level with the tiny victim), I not only testified that she had spent only 12 of 51 seconds on the bus, but identified the specific 12 seconds she was on board: Listening closely to the bus’ videotape, the five-year-old’s and Mom’s sequential boardings stuck out like sforzando tympani blasts.
Still further astray from any remote semblance of honest investigation, the police deliberately failed to obtain a statement from the victim’s Mom. When she was finally deposed, she testified that, while she was walking toward the rear of the bus as it simultaneously pulled forward, she noticed her daughter only four feet away from the rear tires – nanoseconds before they crushed her skull and torso. Employing the most rudimentary, second grade arithmetic (subtraction), it was clear that the victim was never in front of the bus, but instead, at least 17 feet behind the front axle when it began to move forward.
With such genuine evidence, and the conclusions we drew from it, this plaintiff’s case morphed from a miscarriage of justice to a labyrinth of insurance fraud. In an enlightened and ethical environment, the case should have been dropped by the plaintiff’s counsel. And any judge not too lazy to read and smart enough to think clearly should have dismissed it outright. Instead, this ruse of deceit barreled along, leaving a faultless school district and an innocent bus driver in its wake, and carving a swath of debt that local taxpayers were forced to amortize over their next school budget. Most likely, this ruse would have been exposed, and the plaintiff’s case dismantled, at the trial level. Instead, the school district’s insurance carrier sold its client down the drain.
Tiers and Tears
Reflecting typical transportation industry insurance arrangements, the defendant school district was “self-insured” for its first million dollars’ worth of coverage, while it purchased a thick layer of “catastrophic” coverage (from $1 to $10 million) from a private underwriter/carrier. Presumably knowing the case’s risks in the U.S. legal system, and possibly ignorant of the case’s genuine facts and evidence, the carrier effectively extorted the school district to hand over its million dollars of coverage as the bulk of the settlement (or risk never again obtaining transportation insurance). The carrier then chipped in a small layer of frosting that comprised but a tiny slice of its overall exposure. My counsel, firmly convinced of the fraud to which the plaintiff’s case had evolved, was outraged by these dynamics and the huge bite this injustice took out of the school district’s budget. But engaged by a school district held captive by its own insurance carrier, my counsel had no say in the case’s resolution, and our defense team limped away from an almost certain, well-deserved and hard-earned victory.
There were other dynamics involved in this settlement, to be sure. One theme was the victim’s Mom’s fight to save her soul: If her daughter was never in front of the bus, the accident might seem to have been her fault. Even I, the defendant’s expert witness, did not blame her for the incident, but instead, argued that it was the closest thing to a genuine accident I had ever come across in hundreds of lawsuits. By the time I opined on this matter, of course, the case had morphed into a crusade to restore the Mom’s sanity, and a treasure hunt to enrich the victim’s family and its legal counsel. How specific police department promotions mirrored the local department’s handling of the case would be hard to pin down, although the results should not be surprising.
Truth and Consequences
With a heightened fear of the truth exaggerated by the greed and impunity of our contingent fee-driven legal system (the United States is the only country on the planet where the loser of a civil suit does not payer the winner’s legal fees), evidence and integrity can mean nothing. Tragically, they can sometimes mean even less.
It is also true that, far more often than it should, insurance coverage is just a mechanism to camouflage the bilking of policy-holders. As this tale illustrates, insurance coverage can be an albatross. Dealing with the facts of the case from a distance, as the insurance carrier likely did, this baggage can also become the carrier’s albatross. But at least that baggage is of its own choosing. Otherwise, the way to get these loads off our backs is to pay attention to the facts, and where they suggest the truth, make sure that that truth is articulated, and articulated forcefully.
In an environment where the dynamics of lawsuits reflect greed and deceit, and where its levers operate like those in games of chance, one can mount a strong argument that efforts to enhance safety do not pay. When they do not, it is a sad state of affairs. For if investments in safety do not pay, we may start to think it foolish to make them.
These dynamics are not a slippery slope. That sound you hear is not a forest fire or a mudslide. It is the sound of dirty toilet water swishing counterclockwise down the Northern Hemisphere’s plumbing. If we fail to stop it, it will only make a bigger mess than it already has.