Where Darkness Resides, page 4
Marissa wasn’t sure if the entire jury panel could hear her, so she raised her voice when continuing.
“You’ve heard from plaintiffs’ counsel but he only described a part of this case. He failed to mention everything that happened on that Tuesday afternoon of May 2nd. You’ll hear from Martin and experts about how this accident occurred. It’s up to you to decide what happened after listening to all of the evidence. Plaintiffs have the burden of proof, which means they have to prove to you that it was more likely so than not that their version of events is true. We don’t have that burden.
“You’re going to hear that Martin Weaver is very familiar with that road. The Regal Phoenix Resort and Spa is just a few blocks from the site of the accident. Mr. Weaver is going to testify he has taken this route many times when he’s driving the company’s shuttle bus for work multiple times per day for the past twenty years. Martin is going to testify he was traveling westbound on Camelback Road in the far left lane and noticed a car and a motorcycle merging onto Camelback Road into the two right lanes from Goldwater Boulevard. He is going to testify that he remained in his lane of travel when Mr. Hernandez collided with his vehicle. Mr. Hernandez drifted into Martin Weaver’s lane and collided with his vehicle.”
Feeling her throat becoming a little parched, Marissa took another sip of water and then looked at the jury to gauge their response so far. The entire jury panel was mesmerized by her and focused on every word she was saying. A rookie attorney would mistakenly believe this meant the jurors were on Marissa’s side. But an experienced attorney realized jurors always took defendants to task and wanted to know what excuses and defenses were offered. So jurors were more attentive during defense counsel’s opening statement.
“During the trial, you will also hear from the motorcyclist who will testify that Mr. Hernandez never turned his head to the left before entering Mr. Weaver’s lane and he was looking straight ahead the entire time even right before the accident. Mr. Weaver will testify that he saw Mr. Hernandez making his right turn and that he was aware of the presence of Mr. Hernandez’s vehicle to his right the whole time. It is unknown why Mr. Hernandez didn’t look to his left before entering the lane and why he did not perceive Mr. Weaver’s shuttle bus.
“You’re going to hear from the plaintiffs’ own traffic engineering expert that there is no physical evidence Mr. Weaver drifted into Mr. Hernandez’s lane. Although he observed drifting by other vehicles, that was in an area beyond where the accident occurred. You’re also going to hear from our accident reconstructionist, Hank Richardson. He will discuss the scrapes and gouge in the road surface that plaintiff’s expert located. Their own expert’s measurements placed the gouge one foot into the left lane, the lane that Martin was traveling in, and between the first two stripes north of the concrete and asphalt transition. Mr. Richardson is going to testify that the damage to the right side of Mr. Weaver’s shuttle bus and the left side of Mr. Hernandez’s convertible provide insight into the interactions between them. Based on the physical evidence, there is no possible way Mr. Weaver entered the lane to his right. If he had, this would have resulted in an immediate impact that would have caused the convertible to steer to the right.
“Mr. Richardson will tell you that, because the convertible did not steer to the right but steered to the left, the contact did not occur with Mr. Weaver’s vehicle in the center lane. In addition, the large shuttle bus would have acted like a fence, making it unlikely that the convertible would have been struck in the center lane and the gouge mark was in the left lane. Mr. Richardson is going to tell you that, based upon the physical evidence, the accident occurred in Mr. Weaver’s lane when Mr. Hernandez, who wasn’t aware of the shuttle bus’ presence, entered the left lane.”
The jury seemed pleased that there was going to be a “battle of the experts” in the trial. This would make things more interesting and distract them from the gruesomeness of the tragic accident. Marissa continued.
“That’s what happened in this case. It is unfortunate that Mr. Hernandez was fatally injured when he was ejected from the convertible because he failed to wear a seat belt. However, his fatal injuries are not our fault. Mr. Hernandez is responsible for entering Martin’s lane and causing this accident. Based on the evidence, we will ask that you return a verdict that finds in favor of the defendants, Martin and Rose Weaver and the Regal Phoenix Resort and Spa, and against the plaintiffs. Thank you.”
The courtroom was completely silent as Marissa walked back to the defense counsel’s table.
7 MOTIONS
Phoenix, Arizona
The Same Day
“Is it okay if I put you on speaker? Robin’s also in the room,” Carl asked.
“That’s fine,” Marissa said. “I’m calling because the plaintiffs’ counsel filed a couple of trial memorandums this morning and the judge wants us to file our responses later today so we can argue them after the jury is dismissed. I need you guys to draft the responses. Lydia has copies of the trial memos and can get them to you.”
Carl checked his computer and noticed Lydia had already emailed him the trial memos.
“We’ve got them,” he told Marissa while letting Robin know she was also copied on the email.
“Good. The most important trial memo is the motion to exclude Hank Richardson’s testimony. He’s both an accident reconstructionist and a biomechanical expert. They’re not challenging his testimony as an accident reconstructionist. Only his testimony as a biomechanical engineer. They claim he’s not a doctor and cannot testify as to the mechanism of action, causation, and the likelihood Mr. Hernandez would not have been fatally injured if he was wearing a seat belt. Without Hank’s testimony, we won’t be able to argue that Mr. Hernandez was responsible for his injuries even if he didn’t cause the accident. It’s important for us to win this.”
Carl and Robin both skimmed the trial memo as Marissa spoke.
“Can you work with Hank in drafting a response?” Marissa instructed.
“We’re on it,” Carl replied.
“Thanks,” Marissa said as she ended the call and went back into the courtroom to resume the trial with John.
The call was taken in the war room - a special room designated in the Mendoza law firm where preparations for trials are made. It was filled with binders related to the Hernandez lawsuit, dedicated computers, and workspace. The binders contained various things, including the trial exhibits designated by the plaintiffs and defendants, deposition transcripts of every witness deposed including the experts, all expert reports and photos taken of the accident, and all of the pleadings filed and disclosures made in the case. The purpose of the war room was to make everything readily accessible to the attorneys working on the litigation. Attorneys like Carl and Robin were assigned to the war room for moments like these when opposing counsel filed last-minute pleadings or some fact or legal position needed researching.
Robin grabbed the binder containing all of the pre-trial motions filed by the parties. She quickly glanced through it and saw various motions to exclude the testimony of certain witnesses and experts.
“There’s nothing filed by the plaintiffs’ counsel to exclude Hank’s testimony before the motion deadline last month,” she affirmed.
“It makes sense,” Carl added. “Otherwise, the judge would have ruled on this issue at the final trial management conference.” He was checking the binder with all of the court’s rulings. “The minute entry order for that day doesn’t mention any motion about Hank. Just the motion involving Dr. Easterman.” He flipped a few more pages in case a page from the order was out of place.
“We need to argue they failed to timely file this motion and request a Daubert hearing challenging whether such testimony from a biomechanical expert is admissible,” Robin explained. “I’ve drafted those motions before at my last job. I’m not sure why the plaintiffs’ counsel waited until trial to file this motion. Seems like some last-minute desperate attempt.”
“Agreed. This morning, I heard Marissa tell John that Doug Clarkson is a shyster. This seems like something he would do,” Carl explained.
“I hope you weren’t like this when you were a plaintiff’s attorney,” Robin said unsure she had overstepped her bounds.
“I can’t say I was always above board, but you have to understand. Plaintiff’s attorneys are under a lot of pressure. Our caseloads are way more than the caseload for defense counsel. We’re assigned roughly three hundred litigation and pre-litigation cases.” Carl wasn’t trying to garner sympathy. He only wanted Robin to understand his previous predicament. “Most attorneys who worked for the defense have no idea of the overwhelming amount of work we have to do. All they see are the large sums of money we make compared to them.”
“Wow, that’s insane. I’m surprised you guys don’t get burnt out sooner. I could never imagine having that many cases. We only have thirty to fifty cases depending on their complexity. I was overwhelmed at times even with just those numbers.”
Wanting to switch the conversation back to the trial memo, Carl asked, “Did they even depose Hank?”
“Let me check.”
Robin pulled out the binders filled with the deposition transcripts. She skipped the transcripts of Mrs. Hernandez and the kids and flipped through some of the transcripts of witnesses to the accident. She pulled out another binder filled with transcripts. The second binder contained the depositions of the experts.
“Hmm, that’s strange. I don’t see any transcript for Hank. All of the other experts were deposed. Maybe they forgot to depose Hank,” Robin said.
“I’m sure Daniel wasn’t going to remind Doug to depose Hank. It’s not his place,” Carl mused.
Robin agreed. She walked back to the computer in the war room to review the trial memo in depth. Carl followed her.
“I can’t believe this,” Robin huffed. “They’re not even citing the applicable rule of evidence to exclude Hank’s testimony. The trial memo superficially focuses only on Hank’s education and not on his knowledge, skill, experience, and training in forming his opinion as a biomechanical expert. That’s allowed under the evidentiary rule to qualify as an expert.”
“They probably didn’t cite the rule because, if they did, it would undermine their position,” Carl added. He scrolled down to a different page. “The trial memo cites case law from Wyoming and Florida rather than any applicable Arizona case law.”
“The judge doesn’t have to follow those out-of-state cases. I can’t believe there isn’t any Arizona law on this issue. We need to research Arizona cases addressing the exclusion of expert testimony,” Robin suggested.
“I’ll research that,” Carl volunteered.
Legal research wasn’t his forte, but he needed more opportunities to expand his skill set in that area.
This trial memo is the perfect way for me to prove I’m a valuable member of the team, he thought.
“Thanks. I’ll call Hank and let him know about this trial memo and if he has any insights on how we can defeat it.”
Robin dialed his office number.
“Collision Safety Consultants. How may I help you?” the receptionist asked.
“My name is Robin Blake with Mendoza and Associates. I’m calling for Hank Richardson.”
“Please hold.”
The receptionist flipped over to a different line to call Hank’s office. She then flipped back to the call with Robin.
“I’m sorry. He’s not in today. His calendar indicates he’s at an inspection right now. Would you like me to leave a message?”
“Yes, please. Can you let Hank know that the plaintiffs’ counsel in Hernandez v. Weaver filed a trial memo to exclude his trial testimony and we need to file a response today? Can you have him call me back as soon as possible?”
“Oh, most certainly. The inspection should be over within the next thirty minutes or so. I’ll have him call your office as soon as he’s done.”
“Thank you.”
Robin became anxious at the delay, but she reassured herself things would be okay, and they would draft an appropriate responsive motion before the judge’s deadline with or without Hank’s assistance. Carl noticed her increased anxiety. He felt it too. Most attorneys welcomed trial for the adrenaline. These were some of those moments even though it did not occur in the courtroom.
“So how’s your husband doing?” Carl asked to distract from the situation and lighten the mood.
“He’s fine. He’s getting used to me not having to work late hours like I used to at my old job. He loves it. They worked us to death there. We needed to be available to respond to emails and client questions at all hours of the day and night every day, even on the weekends. Sometimes, I would get emails at eleven p.m. or later. Sometimes, as early as four in the morning. It was crazy. My boss was a workaholic. She didn’t do anything besides work other than jogging twice a day. She expected everyone to be the same way. I’m so glad I’m no longer there.”
“I can imagine. Plaintiffs’ attorneys may have a lot of cases but were done by five p.m. every day and didn’t need to work at night or on the weekends unless we were in trial.”
“That’s why I like it here at the firm. My quality of life is a lot better now,” Robin acknowledged.
“Speaking of quality of life, how’s your relationship with Samantha coming along?”
Carl was puzzled. He’d tried to keep his renewed relationship with his ex-wife a secret from co-workers. Other than Marissa, his long-time friend from law school, Carl hadn’t spoken with anyone at the firm about Samantha. Not even Cheryl, the office gossip. He suddenly remembered he brought Samantha to the firm’s Christmas party last year. He was relieved. No one was spying on him like he instantly imagined when Robin brought her name up. But he definitely was going to watch out for Cheryl. As the receptionist, Cheryl was privy to a lot of personal information not available to other co-workers.
“We’re doing fine. A lot better than we thought.” Carl decided not to disclose that the two were going to couple’s counseling. That’s a little too much information, he thought.
“I’m glad to hear it. You guys make a lovely couple. I hear your daughter, Senovia, is a cutie.” Robin’s beaming smile was out of this world.
The speakerphone in the war room interrupted their conversation.
“Robin, I have Mr. Richardson on the line for you,” Cheryl announced.
“Thanks. Can you transfer him?"
“Sure.”
The line clicked over, and the sound of rushing wind filled the war room.
“Robin, I’m driving back from Tucson, so I have you on speakerphone. I apologize for the noise. You know how windy the drive back to Phoenix can be. Tell me about the trial memo.”
“Thanks for calling me back so soon, Hank. They’re saying you don’t have the educational background to testify as a biomechanical expert,” Robin explained.
“That’s rubbish. There’s no such thing as a biomechanical degree. So there’s that. You gain knowledge about biomechanics from experience. I have a bachelor’s in mechanical engineering. I’ve also performed biomechanical engineering analysis for at least two decades when working for biomechanical firms, including my own firm, Collision Safety Consultants. All of that is in my CV.”
A whipping sound screeched over the speaker. Hank paused until the noise subsided.
“I…I’ve also conducted research in occupant dynamics and have conducted various presentations and authored numerous publications in various areas. Like I said, that should be in my CV.”
“We will certainly attach it to our response,” Robin reassured Hank, knowing he was concerned the judge may exclude his testimony at trial.
All experts dreaded a ruling preventing them from testifying as an expert. It affected their livelihood because attorneys would learn about the ruling and file similar motions to preclude Hank from testifying ultimately affecting his ability to be retained as an expert either by a plaintiff’s counsel or defense counsel.
“I’ve also testified as a biomechanical expert numerous times, including in a number of superior courts throughout the state of Arizona and the United States District Court for the District of Arizona. I’ve testified in state courts in New Mexico as well as California. If you don’t have my trial testimony list, let me know. I can have my wife send it over to you.”
“Thanks, Hank. I appreciate that. I’ll let you go so you can have a safe drive home. We certainly don’t want you to get into an accident.”
Hank chuckled before hanging up the phone.
As soon as Robin ended the conversation, Carl motioned to her to come to his desk in the war room.
“I found this Arizona case called Lohmeier v. Hammer. The Arizona Court of Appeals held quote under Arizona law, it is not necessary that an expert witness be a medical doctor in order to offer testimony regarding the causation of physical injuries so long as the trial court has properly determined that the expert has specialized knowledge that will assist the jury in its resolution of that issue unquote. The best part is that the Lohmeier case involved a biomechanical engineer, coincidentally, Hank’s old boss. The court held that an expert’s degree of qualification goes to the weight given the testimony, not its admissibility at trial.”
“That’s great work, Carl.”
He was very proud of himself for tackling the research task.
“But wait, there’s more. I found a recent court of appeals decision specifically addressing Hank Richardson as an expert. The plaintiffs in that case also filed a similar motion. The court of appeals held that it was not an abuse of the trial judge’s discretion in admitting Hank’s biomechanical engineering testimony at trial.”
“Awesome!!” Robin exclaimed.
“It’s an unpublished decision though,” Carl reluctantly acknowledged.
“It may be unpublished and not binding but if we attach a copy of the opinion with our motion it will definitely sway Judge Furman to rule in our favor. I just know it will.”
