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PDF Version of Persuasion
II. Models of Eloquent Speeches
A. A Day of Infamy by Franklin D. Roosevelt – Delivered in 1941
Yesterday, December 7, 1941 – a date which will live in infamy – the United States of America was suddenly and deliberately attacked by naval and air forces of the empire of Japan.
The United States was at peace with that nation, and, at the solicitation of Japan, was still in conversation with its government and its Emperor looking toward the maintenance of peace in the Pacific.
Indeed, one hour after Japanese air squadrons had commenced bombing in the American island of Oahu the Japanese Ambassador to the United States and his colleague delivered to our Secretary of State a formal reply to a recent American message. And, while this reply stated that it seemed useless to continue the existing diplomatic negotiations, it contained no threat or hint of war or of armed attack.
It will be recorded that the distance of Hawaii from Japan makes it obvious that the attack was deliberately planned many days or even weeks ago. During the intervening time the Japanese Government has deliberately sought to deceive the United States by false statements and expressions of hope for continued peace.
The attack yesterday on the Hawaiian Islands has caused severe damage to American naval and military forces. I regret to tell you that very many American lives have been lost. In addition, American ships have been reported torpedoed on the high seas between San Francisco and Honolulu.Yesterday the Japanese Government also launched an attack against Malaya.
Last night Japanese forces attacked Hong Kong.
Last night Japanese forces attacked Guam.
Last night Japanese forces attacked the Philippine Islands.
Last night the Japanese attacked Wake Island.
And this morning the Japanese attacked Midway Island.
Japan has, therefore, undertaken a surprise offensive extending throughout the Pacific area. The facts of yesterday and today speak for themselves. The people of the United States have already formed their opinions and well understand the implications to the very life and safety of our nation.
As Commander in Chief of the Army and Navy I have directed that all measures be taken for our defense. Always will we remember the character of the onslaught against us.
No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory.
I believe I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make very certain that this form of treachery shall never endanger us again.
Hostilities exist. There is no blinking at the fact that our people, our territory and our interests are in grave danger.
With confidence in our armed forces-with the unbounding determination of our people-we will gain the inevitable triumph-so help us God.
I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a state of war has existed between the United States and the Japanese Empire.
B. Address of Martin Luther King, Jr.
I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation. Five score years ago a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope for millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity. But one hundred years later the Negro still is not free. One hundred years later the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later the Negro is still languished in the corners of American society who finds himself in exile in his own land.
So we have come here today to dramatize a shameful condition. In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence they were signing a promissory note to which every American was to fall heir. This note was the promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness. It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation America has given the Negro people a bad check, a check which has come back marked insufficient funds, but we refuse to believe that the Bank of Justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.
We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Those who had hoped that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquillity in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges. That is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.
We must forever conduct our struggle on the high plain of dignity and discipline. We must not allow our creative protests to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people for many of our white brothers as evidenced by their presence here today have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom. We cannot walk alone. As we walk we must make the pledge that we shall always march ahead. We cannot turn back. There are those who are asking the deputies of civil rights “when will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the city. We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating “for whites only”. We cannot be satisfied as long as the Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no we are not satisfied and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.
So even though we face the difficulties of today and tomorrow I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up, live out the true meaning of its creed, “we hold these truths to be self evident, that all men are created equal”. I have a dream that one day on the red heels of joy sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. I have a dream that one day even the State of Mississippi, a State sweltering with the heat of injustice, sweltering with the heat of oppression, be transformed into an oasis of freedom and justice. I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today. I have a dream that one day down in Alabama with its vicious racists with its Governor having his lips dripping with the words of interposition and nullification. One day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today.I have a dream that one day every valley shall be exalted. Every hill and mountain shall be made low, the rough places will be made plain and the crooked places will be made straight and the glory of the Lord shall be revealed that all flesh shall see it together. This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together knowing that we will be free one day.
This will be the day when all of God’s children will be able to sing with new meaning my country tis of thee, sweet land of liberty of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring. And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenys of Pennsylvania. Let freedom ring from the snow capped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that, let freedom ring from Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee. Let freedom ring from every hill and molehill of Mississippi, from every mountainside. When we let freedom ring, when we let it ring from every village and every hamlet, from every State and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics will be able to join hands and sing in the words of the old Negro spiritual “Free at last, free at last, thank God Almighty we are free at last.”
C. Kennedy Inaugural Address
We observe today not a victory of party but a celebration of freedom symbolizing an end, as well as a beginning, signifying renewal as well as change. For I have sworn before you and Almighty God the same solemn oath our forbearers prescribed nearly a century and three-quarters ago. The world is very different now. For man holds in his mortal hands the power to abolish all forms of human poverty and all forms of human life. And yet the same revolutionary beliefs for which our forbearers fought are still at issue around the globe, the belief that the rights of man come not from the generosity of the state but from the hand of God. We dare not forget today that we are the heirs of that first revolution. Let the word go forth from this time and place to friend and foe alike that the torch has been passed to a new generation of Americans, born in this century, tempted by war, disciplined by a hard and bitter feat, proud of our ancient heritage and unwilling to witness or permit the slow undoing of those human rights to which this nation has always been committed and to which we are committed today at home and around the world.
Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty. United there is little we cannot do in a host of cooperative ventures. Divided there is little we can do to remember that in the past those whose foolishly sought power by riding the back of the tiger, ended up inside. To those people, in the huts and villages of half the globe, struggling to break the bonds of mass misery, we pledge our best efforts to help them help themselves. To those nations who would make themselves our adversary, we offer not a pledge but a request, that both sides begin anew the quest the peace, before the dark powers of destruction, unleashed by science, engulf all humanity in planned or accidental self destruction. So let us begin anew. Remembering on both sides that stability is not a sign of weakness and sincerity is always subject to proof. Let us never negotiate out of fear but let us never fear to negotiate.
In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility, I welcome it. I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it and the glow from that fire can truly light the world.
And so my fellow Americans, ask not what your country can do for you, ask what you can do for your country.
My fellow citizens of the world, ask not what America will do for you, but what together we can do for the freedom of man.
Our greatest challenge is still the world that lies beyond the cold war. But the first great obstacle is still our relations with the Soviet Union and communist China. We must never be lead into believing that either power has yielded its ambitions for world domination. Ambitions which they forcefully restated only a short time ago. On the contrary, our task is to convince them that aggression and subversion will not be profitable routes to pursue these ends. Open and peaceful competition of prestige, for market, for scientific achievement, even for men’s minds is something else again. For if freedom and communism were to compete for man’s allegiance in a world at peace, I would look to the future with ever increasing confidence.
On the presidential coat of arms the American eagle holds in his right talon the olive branch. While in his left he holds a bundle of arrows, we intend to give equal attention to both. We must increase our support of the United Nations as an instrument to end the cold war instead of an arena in which to fight it. In recognition of its increasing importance and the doubling of its membership we are enlarging and strengthening our own mission to the UN. We shall help insure that it is properly financed. We shall work to see that the integrity of the office of the Secretary General is maintained.
Life in 1961 will not be easy. Wishing it, predicting it, even asking for it will not make it so. There will be further setbacks before the tide is turned but turn it we must. The hopes of all mankind rest upon us. Not simply upon those of us in this chamber, but upon the peasant in Laos, the fisherman in Nigeria, the exile from Cuba; the spirit that moves every man and nation who shares our hope for freedom and the future and in the final analysis they rest, most of all, upon the pride and perseverance of our fellow citizens of the Great Republic.
In the words of a great president whose birthday we honor today, posing his final State of the Union message 16 years ago we pray that we may be worthy of the unlimited opportunities that God has given us.
D. General Douglas MacArthur’s Speech to Congress
There are those who claim our strength is inadequate to protect on both fronts, that we cannot divide our efforts. I can think of no greater expression of defeatism. If a potential enemy can divide his strength on two fronts it is for us to counter his effort. The communist threat is a global one. It’s successful advance in one sector threatens the destruction of every other sector. You cannot appease or otherwise surrender to communism in Asia without simultaneously undermining our efforts to halt its advance in Europe.
Beyond pointing out these general truisms I shall confine my discussion to the general areas of Asia. Before one may objectively assess the situation now existing there he must comprehend something of Asia’s past and the revolutionary changes which have marked her course up to the present long exploited by the so-called colonial powers with little opportunity to achieve any degree of social justice, individual dignity or a higher standard of life such as guided our own noble administration of the Philippines. The peoples of Asia pound their opportunity in the war just passed to throw off the shackles of colonialism and now see the dawn of new opportunity. A heretofore unfelt dignity and the self respect of political freedom. Mustering half of the earth’s population and 60% of its natural resources these peoples are rapidly consolidating a new force both moral and material with which to raise the living standard and erect adaptations of the design of modern progress to their own distinct cultural environments. Whether one adheres to the concept of colonization or not this is the direction of Asian progress and it may not be stopped. It is a corollary to the shift of the world economic frontiers as the whole epicenter of world affairs rotates back toward the area whence it started. In this situation it becomes vital that our own country orient its policies in constance with this basic evolutionary condition rather than pursue a course blind to the reality that the colonial era is now past and the Asian peoples covet the right to shape their own free destiny. What they seek now is friendly guidance, understanding and support, not interesse direction.
The dignity of equality and not the shame of subjugation. Their pre-war standard of life pitifully low is infinitely lower now in the devastation left in wars wake. World ideologies play little part in Asian thinking and are little understood. What the people strive for is the opportunity for a little more food in their stomachs, a little better clothing on their backs, a little firmer roof over their heads, and the realization of the normal nationalist urge for political freedom. These political social conditions have but an indirect bearing upon our own national security but do form a backdrop to contemporary planning which must be thoughtfully considered if we are to avoid the pitfalls of unrealism.
Of more direct and immediate bearing upon our national security are the changes wrought in the strategic potential of the pacific ocean in the course of the past war. Prior thereto the western strategic frontier of the United States lay on the literal line of the Americas with an exposed iron salient extended out through Hawaii, Midway and Guam to the Philippines. That salient proved not an outpost of strength but an avenue of weakness along which the enemy could and did attack. The Pacific was a potential area of advance for any predatory force intent upon striking at the bordering land areas. All this was changed by our Pacific victory. Our strategic frontier then shifted to embrace the entire Pacific Ocean, which became a vast moat to protect us as long as we held it. Indeed it acts a protective shield for all of the Americas and all free lands of the Pacific Ocean area. We control it to the shores of Asia by a chain of islands extending in an arc. From the Illusions to the Maryannas held by us and our free allies. From this island chain we can dominate with sea and air power every Asiatic port from Vadia Boscot to Singapore and prevent any hostile movement into the Pacific. Any predatory attack from Asia must be an amphibious effort. No amphibious force can be successful without control of the sea lanes and the air over those lanes in its avenue of advance. With naval and air supremacy and modest ground elements to defend bases any major attack from continental Asia toward us or our friends Pacific would be doomed to failure. Under such conditions the Pacific no longer represents menacing avenues of approach for a prospective invader. It assumes instead the friendly aspect of a peaceful lake. Our line of defense is a natural one and can be maintained with a minimum of military effort and expense. It envisions no attack against anyone nor does it provide the bastions essential for offensive operations but properly maintained would be an invincible defense against aggression. The holding of this literal defense line in the western Pacific is entirely dependent upon holding all segments thereof. For any major breach of that line but an unfriendly power would render vulnerable to determined attack every other major segment. This is a military estimate as to which I have yet to find a military leader who will take exception.
For that reason I have strongly recommended in the past as a matter of military urgency that under no circumstances must Formosa fall under communist control. Such an eventuality would at once threaten the freedom of the Philippines and the loss of Japan and might well force our Pacific frontier back to the coast of California, Oregon and Washington.
To understand the changes which now appear upon the Chinese mainland one must understand the changes in Chinese character and culture over the past fifty years. China, up to 50 years ago, was completely non-homogeneous. Being compartmented into groups divided against each other. The war making tendency was almost non-existent as they still followed the tenets of the Confucian ideal of pacifist culture. At the turn of the century under the regime of Chan So Ling efforts toward greater homogeneity produced the start of a nationalist urge. This was further and more successfully developed under the leadership of Chank Sheck but has been brought to its greatest fruition under the present regime to the point that it has now taken on the character of a united nationalism of increasing dominant aggressive tendencies. Through these past fifty years the Chinese people have thus become militarized in their concepts and in their ideals. They now constitute excellent soldiers with competent staffs and commanders. This has produced a new and dominant power in Asia which for its own purposes is allied with Soviet Russia but which in its own concepts and methods has become aggressively imperialistic with a lust for expansion and increased power normal to this type of imperialism. There is little of the ideological concept either one way or another in the Chinese makeup. The standard of living is so low and the capital accumulation has been so thoroughly dissipated by war that the masses are desperate and avid to follow any leadership which seems to promise the alleviation of local stringencies. I have from the beginning believed that the Chinese communist support of the North Koreans was the dominant one. Their interests are present parallels of those of the Soviet. But I believe that the aggressiveness recently displayed not only in Korea but also in Indochina and Tibet and pointing potentially toward the South reflects predominantly the same lust for the expansion of power which has animated every would be conqueror since the beginning of time.
The Japanese people, since the war, have undergone the greatest reformation recorded in modern history. With a commendable will, eagerness to learn, and marked capacity to understand they have from the ashes left in war’s wake, erected in Japan an edifice dedicated to the primacy of individual liberty and personal dignity and in the ensuing process there has been created a truly representative government committed to the advance of political morality, freedom of economic enterprise and social justice. Politically, economically, and socially Japan is now abreast of many free nations of the earth and will not again fail the universal trust. That it may be counted upon to wield a profoundly beneficial influence over the course of events in Asia is attested by the magnificent manner in which the Japanese people have met the recent challenge of war, unrest and confusion surrounding them from the outside and Czech communism within their own frontiers without the slightest slackening in their forward progress. I sent all four of our occupation divisions to the Korean battlefront without the slightest qualms as to the effect the resulting power vacuum upon Japan. The results fully justified my faith. I know of no nation more serene, orderly and industrious nor in which higher hopes can be entertained for future constructive service in the advance of the human race.
Of our former ward the Philippines we can look forward in confidence that the existing unrest will be corrected and a strong and healthy nation will grow in the longer aftermath of wars’ terrible destructiveness. We must be patient and understanding and never failing as in our hour of need, they did not fail us.
A Christian nation, the Philippines stand as a mighty bulwark of Christianity in the far east and its capacity for high moral leadership in Asia is unlimited. On Formosa the government of the Republic of China has had the opportunity to refute by action much of the malicious gossip which so undermined the strength of its leadership on the Chinese mainland. The Formosan people are receiving a just and enlightened administration with majority representation on the organs of government and politically, economically and socially they appear to be advancing along sound and constructive lines.
With this brief insight into the surrounding areas I now turn to the Korean conflict. While I was not consulted prior to the President’s decision to intervene and support the Republic of Korea that decision from a military standpoint proved a sound one. As we hurled back the invader and decimated his forces. Our victory was complete and our objectives within reach when Red China intervened with numerically superior ground forces. This created a new war and an entirely new situation. A situation not contemplated when our forces were committed against the North Korean invaders. A situation which called for new decisions in the diplomatic sphere to permit the realistic adjustment of military strategy. Such decisions have not been forthcoming. While no man in his right mind would advocate sending our ground forces into continental China and such was never given a thought, the new situation did urgently demand a drastic revision of strategic planning if our political aim was to defeat this new enemy as we had defeated the old.
Apart from the military need as I saw it to neutralize the sanctuary protection given the enemy north of the Allou, I felt that military necessity in the conduct of the war made necessary first, the intensification of our economic blockade against China, two, the imposition of a naval blockade against the China coast, three, removal of restrictions on air recognizance of China’s coastal areas and at Manchola. Four, removal of restrictions on the forces of the Republic of China on Formosa with logistical support to contribute to their effective operation against the common enemy.
For entertaining these views all professionally designed to support our forces committed to Korea and bring hostilities to an end with the least possible delay and at its saving of American and allied lives I have been severely criticized in lay circles, principally abroad, despite my understanding that from a military standpoint the above views have been fully shared and passed by practically every military leader concerned with the Korean campaign including our own joint chiefs of staff.
I am closing my fifty two years of military service. When I joined the Army even before the turn of the century it was the fulfillment of all my boyish hopes and dreams. The world has turned over many times since I took the oath on the plane at West Point and the hopes and dreams have long since vanished. But I still remember the refrain of one of the most popular barrack ballads of that day which proclaimed most proudly that old soldiers never die, they just fade away. And like the old soldier of that battle I now close my military career and just fade away, an old soldier who tried to do his duty as God gave him the light to see that duty. Goodbye.
III. Sample Summations
A. Marvin Lewis:
Ladies and gentlemen of the jury, the hour is getting late and you’ve been very patient. You’ve been an audience that has been a captive audience, and I think you recognize by now that you are not an audience in any sense of the word, but you are judges. Judges of the fact, just as much a judge as his Honor who sits there on the bench, although you do not wear the black robe.
And we’ve been discussing a question of liability here, if you can call this a question of liability. We’ve heard of this complete, wanton misconduct which no one could possibly classify as negligence of the defendant. And, of course, his Honor will give you the instruction of law, and when there is that type of wantonness, there can be no defense of contributory negligence. So contributory negligence, in my opinion, is not even in this case. But even if it was, as we have discussed in our question of liability, it wouldn’t be negligence, because again, as you will hear from his Honor, conduct that may cause injury — yes, conduct that may proximately cause injury — is not negligence necessarily. Before we can reach the stage of negligence, we have to take this piece of paper and tear 30% off of it because the person who gets 70% in his tests passes, and that’s you and I, the average person, who because we are human, err, and all of us at times are at fault. But as we’ve said here in the liability, if you could possibly even conceive that there was this type of negligence as distinguished from conduct that brought about this accident on the part of Jenny O’Neal, is at most could only be 10%, and we’re going to discuss that when we get into the question of the debt — of the debt, I say to you — that is owed this woman be reason of the wantonness of this driver.
Now where shall we start? Jenny O’Neal is a woman that you probably will never read about, at least now, in the newspapers. She hasn’t reached the stage of a Helen Hayes or other people who are prominent in Broadway today, and why? Because Jenny was just starting out on her career. She had all of life ahead of her, and living, of course, is not just survival. And she loved life to the full. And I think all people, probably, who want to be actors and actresses have that type of the love of life because they love people. They feed on applause, they want to come over and portray to amuse — to entertain, and to become part of other characters and people that we know in the world, and in order to do that, they have to completely forget themselves and put themselves into the part. And this was the life that she had planned for herself, and at the age of 21 she went into acting school. We’ve had her teachers here who told us the fine grades she had, the promising career. And she was just starting out at $100 a week, playing stock, doing very well, received good notices as the evidence showed; but her teachers felt that she should also do some dancing so she could be on the stage and learn to live with the stage, and all different phases of it, like the moving picture actress, Ginger Rogers, who is now in her 50s, still playing in pictures — started out as a member of the chorus. And how many of our actresses — they start that way at the beginning of the road.
She was a tennis player. She loved people. She didn’t only have one young man, but she went out with many different young men and enjoyed life to the full. And here she is on that day, driving along in a car, minding her own business, and as life would have it — we have enough problems just from growing old, let along have someone else bring something upon us to our bodies that is not necessary — out of nowhere, she crashes into this truck ahead. And when she crashes, what happens? There is a sudden flexion and extension of the body, as the doctors told us, and there is a fracture of the humerus — that’s the long bone of the left arm. But it’s the fracture that isn’t so important — of course, it was uncomfortable to wear that cast for eight months; it itches, you’d like to take it off, it’s uncomfortable, it was unsightly to her. She had the worry of the two swollen eyes, not knowing whether her face was going to be disfigured. That, of course, healed, but there was that mental suffering during that period of time. But when you have a fracture, as the doctors explained, it’s not just the breaking of the bones. There’s a soft tissue destruction that goes on there of the muscles and the ligaments and the tendons and the hemorrhaging of the blood into that area, and then when you see, as the doctor’s say, when it heals, it heals with scar tissue that bears down on those nerves causing constant, nagging pain, and sometimes a type of electric type of shock pain. And she had that, and still has it, as the doctors said, at the present time. And then there was the jerking of her head and she went to the emergency hospital. She went to her general doctor for a period of time, and it was only after a period of some year when things weren’t healing that he thought because her shoulder was still bothering and her neck was still bothering, he sent her for a specialist, an orthopedist, in bones and joints. And that doctor gave her what is called physiotherapy. And it’s interesting if you would look at the bills that’s been submitted to you, you will see that she wasn’t just trying to build up bills here; she didn’t go to the physiotherapist unless she had to. If you will note, there are months where she may have only gone once or twice, but toward the end, she was going three and four times a month. She wasn’t doing that for fun. She was doing that to be relieved from pain. And we’ve put in the medicine bills, the prescriptions. And what does that mean? For each prescription there, those pills were used up and those pills were for what? So she could sleep at night.
You know, God in his wisdom has made a wonderful machine of man that nobody’s been able to duplicate. Doctors try, but doctors are not scientists in the sense that medicine is a science, it is only an art, and they attempt to fix the body, they attempt to patch things up, but you know, there’s no such thing as just a broken bone. There’s no such thing as just a torn ligament or torn muscle or the torn fibers of that tendon which held that shoulder to the remainder of her body. Every time we have any type of an injury, there is a mental shock as well, and something has been done to the person, to the person as we knew them.
Now there’s one little remark that appears in the first hospital record that says nervous shock. And she never got over that nervous shock. Now that may sound — you can say it quickly, nervous shock, but what does it mean? You know, it means instead of that happy-go-lucky girl that her friends knew and told you about, what did you see on the witness stand? You saw a girl that while she testified her voice quivered, there were tears that came to her eyes and she tried to hold them back. When I asked her, do you feel that you’re the same girl that you were today? When I said, do you still play tennis like you used to? Did you enjoy tennis?, and she said I loved the game. Can you do it now? She said, I’ve tried, I’ve tried, but I just can’t make it. Of course she had to go off the stage, and again when I asked her that, that was that painful question and she didn’t want to show emotion. She knew that you would be judging her as maybe an actress. She thought, well maybe that jury’s going to say, oh this is a really good actress. She’s really putting it on. There’s nothing wrong with her professional ability. And I asked you about that in voir dire. I said, are you going to consider that because this girl is an actress and that’s what she wanted to do in a career, that you were going to look at all her present problems as if she were acting, and you promised me, as judges, you promised me under your oath that this is something that you wouldn’t do.
You know, there’s a famous line from Hamlet written by the great Bard, William Shakespeare, and I’m reminded when he was trying to goad his mother into admitting her complicity in the killing of Hamlet’s father, the great Dane King, and he brought out two pictures, and he showed his father and his stepfather, and he said, mother, look you upon this picture, and now look you upon this. And I say to you, ladies and gentlemen of the jury, look you upon this picture. How this girl, starting out in life, full of fun, vibrant, looking forward to the applause of her fellowman, wanting to entertain, looking forward to a life where she had a great opportunity to do what she wanted to do, and look you upon this picture, where you may not even like this girl today because of the way she sat on that witness stand and seemed morose, somebody who you wouldn’t want to invite into your living room. Don’t hold that against her. That’s the very injury — one of the very injuries that we are seeking damages here for today, because that mental disturbance can be so far greater, so far greater than even the injury to the body. And that’s what’s happened to her. And now, on top of everything else — she’s had that bruise on her breast and the worry, and she’s told you that she’s heard so much about cancer — that possibly there is that lingering feeling, maybe I face that. But worse that all else, the x-rays now show that there’s starting to be a narrowing of the vertebrae. And you know what the doctors said that means. That means that the disks which is like a cushion that goes between those vertebras of the bone and protects those one bone from rubbing against the other, there’s been a injured vertebrae — injured disk here. And that means that they are wedging down there and that’s wedging on nerves, and as the doctors said, in reasonable medical probability that’s going to continue. And you know, he made a rather inconsistent statement. He said, she may be able to go back to work in three years as an actress, but, but, if this continues, as we see here now, and at her early age she shouldn’t have arthritis in her body — this is a progressive thing and we’re going to probably have to have a fusion. You know what that means? That means that that girl, whether she has it or not, faces the future, the fear of being taken into a hospital and then being asked to sign a consent that whatever happens to her where they are operating on that delicate spinal column with all of those nerves going off of it that can control the entire body, and where a slip of the knife can cause complete paralysis, she consents to have this type of operation in order to relieve this pain where already the tingling is going down the arm and it’s going into the fingers and into the hand.
Now the defense counsel will remind you, the judge will tell you, that you cannot speculate. That’s not speculation. You’re going to be given in instructions tomorrow morning by his Honor life expectancy tables. That’s the gamble of the insurance industry as to how long a person’s going to live. Nobody knows how long they’re going to live. Nobody has a crystal ball. But that doctor will not guarantee that she won’t have to have that operation. Who should bear that risk? It’s like a baseball game. You get a fine batter comes up to the plate and you’ve got two on and there’s no outs. Everything’s going for him. But now he swings twice and there’s one more strike left and the people start leaving the ballpark. You can’t overlook the two strikes, can you?
Now I know you’d rather think that Jenny is going to be all right, and so would we all. We don’t like to look at pain. They say that looking at heaven is looking into health, and looking into illness is looking into the window of hell; because you can send a man to jail for life, you can even — you used to be able to execute him, but you could never give him pain. And it doesn’t have to be tremendous pain, it can just be annoying, aching pain.
Do you know what you look forward to at night, at the end of the day, where you’ve been sitting here even, listening to this trial and you’re tired tonight, and what happens? You get into your bed and you pull that switch and that room becomes nice and dark. And you pull those nice clean sheets over you and those comforters and you snuggle down on that nice, soft pillow for that wonderful, comfortable sleep which you just take for granted, don’t you? And this girl can’t do that any more. When she starts lying on that shoulder she’s getting pain that wakes her up. When she moves her head, any movement, she’s getting a nagging ache in that neck. You know, we don’t recognize how heavy our head is. How it sits on this little bone, until we have headaches or something wrong with our head. Isn’t it a wonderful feeling when we don’t have to be conscious of our body. Even the little toothache — what it can do to us. What about a backache? The gnawing ache that just lingers there so that you can’t enjoy the day’s work.
You know, they say that there’s three inalienable rights. Life, liberty, and the pursuit of happiness. Life isn’t survival. Liberty is the liberty to be free and happy and enjoy these things that we just take for granted. When she wants to put her arm around that boyfriend when dancing, she doesn’t want to think that it’s aching. When she just goes to reach up on the shelf to get the pitcher of milk it’s going to hurt. And when she goes to zip or unzip that dress or her bra, it’s agony. This isn’t living, and they can’t tell her when this is going to terminate.
Now let’s just consider a minute some damages here that we’re talking about. This is her loss of wages to date. Now, she was as a dancer, she lost $90 in that show for 104 weeks. The judge said you can write this down. You all were told you can have pencil and paper here to write down these figures, and I know his Honor won’t mind if you bring these to the jury room. Then she earned $90 a week as a cashier. Imagine. This was prison for a girl who wanted to be on the stage as an actress. And now — she wasn’t made to be a cashier any more than I’m made to be a cashier. You take me away from the courtroom, you take me away from pleading for my fellowman, and you’ve destroyed me. Because each of us has our own niche in life and so did she. And then she went to work finally as a receptionist for $70 and again, this is what she’s doing at the present time. And there you can see the figure that I’ve reached. This is just a small figure, but we’ve tried to be realistic. And even if you want to take off the 10%, which I say you shouldn’t do at all because there wasn’t even contributory negligence, but it couldn’t possibly be more than the 10%, you’re left with that figure. That’s just the out of pocket up to the present time. And now we come into what is loss of earning ability.
What do we mean by loss of earning ability? His Honor will advise you that a person — that’s general damages — that’s now out of pocket, and it isn’t speculation. You can figure that this girl has been deprived of earning her living in the way that she wanted to. Just assume she can’t return to work as a dancer. I haven’t even taken the $100 a week as an actress. I’ve only taken the $90 a week in the line, and of course she wouldn’t stay there for very long. And we come out there again to this figure, and this again is the actual loss of her earning capacity from the date of trial added onto the other — $20 at 39 weeks, $780, where I have deducted what she would be receiving as a receptionist. But here’s the realities. The realities that the chances are she’s never going to go back to work as an actress.
Now I have assumed here that if she goes back to work as an actress she’s only going to be making the starting salary of $100 a week. That’s ridiculous. That’s absolutely ridiculous because we know that with her talent what she’s going to earn in the future. But just on that basis, and on the basis of only the $90 as a dancer and not the $100 as an actress, we would come out on her life expectancy to $35,568.00 and if we took the $100, we’d be over $50,000.00.
I made a mistake here, ladies and gentlemen of the jury, and I want to confess it. My prayer was too low. I have only asked for a total of $50,000.00 and you’re bound by it. I usually say to a jury, I leave it up to you. But don’t think because I’m asking for $50,000 cut it in half or take one penny off of it, because if you do, you’ll only have half justice, you won’t have full justice for this girl.
You know sometimes you can look from a hill and you see a city of lights and you just see the little dots and all they are lights. But each light is a family and a human being’s lives, and you’ve been compelled to look into the window of Jenny and you have to make that decision. She can’t come back in a year or two years or five years and say this wasn’t sufficient. This is your day and she depends on me, and I pray that I’ve had the wisdom and the ability to convey to you that this — in order to do justice — must be the verdict of the prayer in this case.
I’m not going to shift this responsibility from my shoulders to yours. I know that not only on behalf but on behalf of counsel for the defense and his Honor, the judge, we thank you for the wonderful attention that you have paid here today. We don’t ask your sympathy, we ask for your empathy. Empathy, which as Webster says, is understanding another’s pain and suffering by the use of the mind. And there by the grace of God go you.
It’s been a pleasure to be with you and I know it has been a real honor and responsibility for you to have served in our great jury system. Thank you so much.
* * *
Now let’s look at a different treatment of the same case. This time the lawyer is Moe Levine. I never knew Moe and I wish I had. If you ask members of the general public to name the ten greatest trial lawyers of this century, I suspect that few would mention Moe Levine. But if you ask lawyers, he would be among the first named. He’s one of us. The argument that he makes is creative, sincere and real. Ask yourself, did Moe Levine care about Jenny O’Neal? Did he understand her? Did he convey to the jury the essence of her loss? The loss of her dream and, of course, the answer is a resounding yes. I suggest that you watch this closing twice. First, just listen. Then play the tape again and analyze his technique; his use of pauses, his appeal to common sense, the word pictures, his sheer presence. These are all part of a unified whole that is persuasion at it’s finest. Here is the great Moe Levine.
B. Moe Levine:
Members of the jury. I think you all know my name is Moe Levine, and my function is to make final argument to you in the case of Jenny O’Neal. And it’s not easy, and because of the unique quality of this jury, it is my intention to lead you into unique fields of consideration. This is not an easy case for you to consider. If all we were concerned with are the special damages, we would not need lawyers. Liability has been concluded and has been resolved in favor of the plaintiff and so I shall not touch upon it. I have no wish to arouse your animosity against the defendant who I am sure had no intention to cause injury to Jenny O’Neal. You may not forgive him by your verdict since forgiveness is the Lord’s and your function is judgment and not forgiveness. And so what you must do is appraise what has happened to Jenny O’Neal and to compensate under the law and in accordance with your conscience, adequately. And this, I said at the outset, is not easy.
Two thousand dollars represents the out-of-pocket losses. Anything else would be speculative, and so I will not speak of anything else. I will speak, however, of what has happened in the light of the meaning of life to all of us and to Jenny O’Neal. There is no way for you to determine from what you have heard whether Jenny O’Neal would ever have been a great actress. She might never have been successful. We know that thousands of girls go to acting school and then try to become actresses and fail. We know that those who succeed are in the great minority. We know that this is a very difficult field indeed in which many strive and very few succeed. And so it would be speculative to determine for you how successful she would have been. Would she have been a star? Would she have become a model? Would she have been a dancer? Would she have entered night club routines? We don’t know.
It is true she was not given the opportunity to prove herself, but we have no way of judging what would have happened had she been given that opportunity. What do we have? We have the knowledge that a girl, 25 years of age, had spent some part of her life in establishing for herself a goal and a lifestyle. At that early age, what more could she have done than to have said, this is what I wish to do. I shall try. She knew the heartaches and heartbreaks of acting. She knew the difficulties. She knew the thousands of girls that traveled to New York and to California and seek to share the limelight and the spotlight and failed, and go home brokenhearted and disappointed, to marry the boy who has waited for them and settled back into domesticity. She knew these things. She was one of the girls who said, let me try, let me see. I said to you, we will wander into strange fields together and we must in order to explore this problem. What has happened here and what I will talk about almost sounds like science fiction.
There is no Jenny O’Neal any more, because the Jenny O’Neal who existed one moment before this accident happened was a Jenny O’Neal with a future which she had planned, which might never have happened, but which she had embarked upon, and that Jenny O’Neal is gone. And she has been replaced with a different, completely different, other, Jenny O’Neal. Now I do not say to you that this is an inferior Jenny O’Neal, it may not be. Indeed, it may be a superior Jenny O’Neal. It may be better for this girl to have been saved the heartbreak of attempting to compete in a field for which she might never have been qualified. But she never had a chance to find out.
And what is life, is the question that we started with. Is it survival? We have heard a definition of life, liberty, and life — is life survival? If life is survival, who needs it? Some of you are so young and there is so much ahead for you. And I say to you that in this world of tensions and struggle and hatred and horrors and enmity and fears, if all we have is survival, who needs it? There must be hope and dreams and faith and belief and desire and wishfulness, and here was a girl who wanted to be Tinkerbell or Wendy — she wanted to fly, and now she’s become earthborn through no fault of her own, and she’s not Jenny O’Neal at all. Mischa Elman with one finger cut off is no longer Mischa Elman is he. Same name, same face, same man. You could cut off both my legs and arms. You could blind me and deafen me. Leave me my voice and put me on the jury table in a basket and I will double my verdict. The jury will weep at the sight of me. Take my voice and leave me all my other faculties and I am nothing. Take from Jenny her dream, and what is Jenny? Not an inferior person, but she’s not Jenny.
What damages do you arrive at for this transfiguration of a human being, for this robbing her, albeit not willfully, but negligently, robbing her of her identity. You see what I’m talking about. I’m talking about her right to choose her lifestyle has been altered and taken from her; against her will and without her concurrence, it’s been taken from her. She cannot act. She cannot dance. I’m not talking about her pain, she could live with that pain. She’s young, she will heal. If she cannot heal herself, others will heal her; it will cost money, so what? She will have pain, she will learn to grow with pain, life is pain. Part of living is stress. Without stress there is no life. It’s the meaning of life. Stress would not bother her. But her lifestyle has been altered and she has been altered and she has been stopped from doing what she wanted to do, and she is not the same girl, and she has been changed, whether for better or for worse is irrelevant. She is not what she was and she has not chosen to be changed and there must be compensation for it.
I anticipate that this intelligent jury, and I mean I do not mean to pay you vague, idle compliments, this is not my style. But if you were not what I deem to be an intelligent jury, this would not be the tenor of my final argument. I anticipate that someone on this jury will say, what good will money do her. Will it change her back into Jenny O’Neal, the dancer and the actress. The answer is no. No, money cannot help her to become what she was. And so some of you may say, then why give money? Why punish when it will not help? And here we come to what really becomes almost a religious problem. This is not a matter of reward, then punishment. The defendant, indeed, is blessed by the fact that this occurrence did not take place in the old days when for injury inflicted negligently the penalty was that the tort feasor has inflicted upon him like injury; an eye for an eye, a hand for a hand, injury for injury. Today, only money need to be given in compensation for injury, and the rule of Hamerabi is no longer in existence. But what good will the money do? Well, for one thing, there is no alternative. You cannot restore her. I said that only God can forgive and only God can heal. What has happened to her cannot be undone. What can you do?
You sensed as she testified that this girl feels that she has been rejected. Life has not been good to her. Her plans have not matured. They have been aborted at the beginning. She wasn’t given the chance that she sought and felt she deserved. She’s been rejected. Will you reject her? Do you feel she should be rejected? Has she done anything to deserve it?
An award by you of damages will take into consideration her dignity, her sense of pride. It will be an acknowledgement that you understand what she has lost. What she might have had. What life she could have achieved. It will be a little light cast upon what has become a gloomy world. You can give no more. You can do no more. I feel that you can do no less. She deserves no less. She has done nothing for which she should be punished. She has been the victim, and she was innocent.
And so reflect deeply within yourselves and you will come to a conclusion which is consonant with your sense of conscience and which will reflect your ideal of justice, and I have no doubt that whatever decision you come to, born as it will be by your sense of your responsibility and of her need for pride and dignity, it will be a verdict that will be acceptable.
C. Howard L. Nations:
THE COURT: All right. Mr. Nations.
MR. NATIONS: May it please the Court; Mr. Simpson; Mr. Weinstein; ladies and gentlemen of the jury: Your presence in this jury box breathes life into the Constitution and the Bill of Rights. You are the embodiment of the Seventh Amendment, every American citizen’s right to trial by jury. As you enter that jury room to decide the quality of Cesar Gonzalez’ future life, you will be carrying on a vital role of citizenship that began 2500 years ago in Athens, Greece, when the Athenian leader, Solon, first summoned citizens of Athens to court to resolve the disputes of their fellow citizens. It is the highest calling of citizenship and the finest method ever devised by man for resolving our disputes. However, the role of juror carries with it great power and great responsibilities. You have the power in this case to right a wrong, to speak for all of our citizens to demand safer amusement parks throughout America, and most importantly to the Gonzalez family, to determine whether Cesar is to receive a full measure of justice which will fully compensate him for the disabilities which he will endure for the next forty seven years.
When we talked three weeks ago on voir dire examination, I told you that the 12 of you who would be selected to answer the questions in this case were going to have an extremely important and difficult job; That your role would be, first, to resolve all of the factual disputes between the parties; secondly, to weigh the credibility, the believability, of the witnesses; and third, to determine what amount of money will be necessary to fully and justly compensate Cesar Gonzalez for the wrongs done to him by Astroworld and to help restore his life to the highest degree of quality still available to him, considering his permanent physical disabilities.
We have considered a lot of evidence in the last three weeks. Let’s now consider how that evidence applies to the questions which you are called upon to answer. The first issue:
“Was this injury traumatic in origin or was it spontaneous?” The answer is clearly that the injury was traumatic in nature. You heard the doctors discuss the medical investigative technique that was used to determine whether the injury was traumatic or spontaneous, a technique called differential diagnosis. Let’s review differential diagnosis in this case as the treating physicians did and we will see that it leads clearly and convincingly to an injury traumatic in nature.
The first element of differential diagnosis is Cesar’s family history. The fact: There is absolutely no Gonzalez family history of any nature that would indicate a spontaneous event.
The second element is Cesar’s individual patient history. There is absolutely nothing in Cesar Gonzalez’ personal history that would indicate that he was predisposed to a spontaneous clot. You recall the various tests, what the Defendant’s hired witness, Dr. Michael Weintraub said needed to be there, the underlying disease processes that would cause a spontaneous event. We considered Cesar’s history with respect to every one of them: diabetes, smoking, diet pills, birth control pills, heart condition, sickle cell anemia, and, of course, the ever famous won ton soup syndrome. None of these indicators of a spontaneous event, not one of them applies to Cesar Gonzalez. So, the second element of differential diagnosis, patient history, supports an event traumatic in origin.
The third medical consideration in differential diagnosis is the mechanism of injury. What physiologically occurred to Cesar’s body to cause the injury, is it consistent with the subsequent findings, and does it support a traumatic event or a spontaneous occurrence? The mechanism of Cesar’s injury is undisputed. There are two biomechanical engineers who have testified in this case: Dr. Chandran, who came in from Iowa, one of the leading biochemists in the country, and Dr. Alexander, whose NASA credentials you heard. They are outstanding bioengineers. Let’s look again at the video graphic re-enactment of the stretching of the right vertebral artery over the atlas disc, the tearing of the artery, formation of the clot, movement of the clot through the right vertebral artery to the basilar tip and blockage of the basilar artery cutting off the blood supply to the brain. You watched the medical graphic and heard each doctor and biomechanical engineer testify that “yes, you whip the head around in this fashion, it can clearly result in a tear of the right vertebral artery.” Defendant’s expert, Dr. Alexander admitted it. There is no question about it.
Four doctors testified in this case: Fields, Weibel, Handel — and even Defendant’s witness, Dr. Michael Weintraub — admitted the mechanism of Cesar’s injury.
Consider the mechanism of injury as described by Defendant’s biomechanical expert, Dr. Alexander in reporting to Astroworld before the medical reports were drafted: “the acceleration forces involved in the violent movement of the head result in high tension forces which can tear or separate the vascular bed leading to the bleeding within the vessels themselves;” which is exactly what happened to Cesar.
So, all four doctors and both biomechanical engineers agree on the mechanism of this injury, that this could occur in precisely the fashion we have demonstrated to you on the medical video re-enactment all the way through the trial.
The next consideration in the differential diagnostic investigation is the onset of neurological symptoms. What occurred, and when did it occur? It is significant that the onset of neurological symptoms came immediately after Cesar turned to his cousin and said, “That turn popped my neck.” Then what happened? The first neurological symptom. Cesar is rendered unconscious for a brief period of time. When he gets off the Cyclone, he vomits. The third very important symptom he experiences is blurred vision. You remember how important that is? Because we have this question about whether this is a basilar tip syndrome or whether it is mid-basilar. Remember what Dr. Fields said about the importance of this symptom of blurred vision? The blurred vision indicates the involvement of the Circle of Willis, which is located above the tip of the basilar artery. The blurred vision medically indicates that there was an occipital problem, which indicates that the blockage is in the basilar tip, not emanating in the mid-brain. This clearly supports traumatic origin of injury rather than spontaneous. Considering all of the neurological symptoms, they medically spell brain stem infarction, a traumatic event.
The next thing in differential diagnosis is the clinical examination. Significantly, who did the clinical examination? Cesar’s treating physician, Dr. Weibel did the clinical examination. What is the advantage of that? Defendant’s hired witness who never examined Cesar Gonzalez, Dr. Weintraub, admits that there is a substantial advantage in differential diagnosis to Dr. Weibel as Cesar’s treating physician, rather than someone in Dr. Weintraub’s position who is paid to read a cold medical record years later. Consider this carefully when deciding whether to accept Dr. Weintraub’s diagnosis of a spontaneous event or all of the treating physicians’ agreed diagnosis of the episode being traumatic in nature.
Dr. Weibel then followed the next step in differential diagnosis: He brought in consultants in the relevant specialties. Significantly, consider the quality of the consultants Dr. Weibel engaged. One of the world’s leading neurologists, Dr. William Fields. There is no question about that. One of the world leading neuroradiologists, Dr. Nick Bryan, who is now head of neuroradiology at Johns Hopkins. Dr. George Campos, the head of T.I.R.R., a renowned radiophysiologist. Cesar had a tremendous advantage of being treated in the Texas Medical Center, which allowed Dr. Weibel to bring in some of the world’s finest medical experts to assist in saving Cesar’s life.
One of your vital roles as jurors is to weigh the credibility of the witnesses, especially the medical experts in this case. We have reviewed the thorough differential diagnostic techniques utilized by Dr. Weibel, Dr. Fields and Dr. Bryan, the treating physicians whose expertise saved Cesar Gonzalez’ life. Now let’s compare the methods used by Defendant’s hired witness, Dr. Michael Weintraub of New York: What clinical examination of the Plaintiff did he perform, what test did he conduct, with whom did he consult, what test results did he review? Answer: None.
What did Dr. Weintraub, Defendant’s hired testifier do? Did Dr. Weintraub call Dr. Weibel and ask him for a first hand account of the clinical examination? No. Did he call Dr. Fields and ask to discuss his entries in the medical records? No. Did he call Dr. Nick Bryan and inquire “Is this an underlying congenital stenosis or is this a stenosis arising from the thrombosis?” No, he did no consultations. None. He did exactly what he was paid by the Defendant to do. He sat in his office in New York, read the medical records and arrived at a pre-ordained opinion precisely in conflict with the opinion of the world renowned medical experts who actively treated Cesar Gonzalez and whose expertise saved Cesar’s life. We brought you those experts to give you a first hand account from the witness stand as to the depth of their knowledge of Cesar’s condition and each of them agreed that his life threatening injury was traumatic in nature.
Let’s consider further the objective tests conducted by Dr. Weibel, the CAT scan and the angiogram. The first test, the CAT scan shows no bleeding in the brain. That’s an extremely important diagnostic tool in this case, because it eliminates subdural hematoma, A.V.M., aneurysms, and numerous types of disease processes that potentially could have been the cause of Cesar’s injuries if they had been precipitated by a spontaneous event. Therefore, the CAT scan is a very important differential diagnostic tool in ruling out spontaneous event.
Next consider the differential diagnostic surgical procedure, the angiogram. Now let’s recapture the situation here with respect to Dr. Weibel. Dr. Weibel, the father of subclavian arteriography, who has performed literally thousands of them is confronted with a young man who is about to die. There is no doubt about that in the record. Dr. Weibel conducts the extremely important angiogram and makes four very significant discoveries.
Number one, he tries to go up the right vertebral artery, and cannot. It is occluded. He backs out and goes up the left vertebral artery.
The second important discovery: when Dr. Weibel gets the dye into the basilar artery he sees the thrombosis. Knowing that there is a 95 percent fatality rate in basilar artery thrombosis, Dr. Weibel recognizes that this young man is about to die if he doesn’t take the proper immediate action. The third event happens: Dr. Weibel sees reflux into the right artery, which hesitates for three or four seconds. The dye flowing downhill hesitates. Why is that significant? Dr. Weibel explained “because there is blockage there. There is a problem here in this area.” Then the dye goes through and the fourth event occurs: Dr. Weibel sees the tear in the right vertebral artery.
Now Defendant raises three issues as to Dr. Weibel’s actions at this point. One, why did he not take a picture of the tear? Two, why did he not record the tear in the medical record? And, three, why didn’t he do surgery to repair the tear?
The answer to the first two inquiries is Dr. Weibel was not acting as a neuroradiologist in this case, consulting with someone else and reporting to a treating physician. Dr. Weibel was the treating physician. He was the one that needed to know that the tear was there and, as he explained, the tear was not clinically important, because Dr. Weibel could see that the tear needed no surgery. It needed no repair because it self heals.”
As Defendant’s medical witness, Dr. Handel explained on cross-examination, “Yes, we get tears in arteries when we are doing arteriography. But you get the tear in this fashion, and then you go through adhesion and aggregation. Platelets immediately start filling in here. They adhere to this area. Then they aggregate to each other. Then they build up. They keep the aggregation going until they move into the bloodstream. The bloodstream breaks the clot loose. But when it breaks the clot loose, you have gone through a self-healing process of the artery right here. That’s why there is no need for surgery, because it self-heals.”
Additionally, there is no surgery that can be done in that area. You don’t do surgery in the lower area, because you can’t get access through the bony area because of the transverse processes. You will recall that I asked Dr. Handel on cross examination: “What corrective surgery can you perform when you tear an artery doing an arteriogram?” Dr. Handel replied “None.”
To answer Defendant’s inquiry as to why Dr. Weibel did not do surgery to repair the tear, first, there is no surgery needed. Second, there is no surgery that can be done.
One additional factor which I suggest that you take into account in weighing Dr. Weibel and Dr. Fields’ testimony against the contrary testimony of Dr. Weintraub is that not only did Dr. Weintraub not consult with anyone, not have the advantage of a clinical examination, and not conduct any test. It is extremely important that you take into account that Dr. Weintraub did not even bother to look at the angiograms or the CAT scans before rendering his decision that this event, which crippled Cesar Gonzalez for life, was spontaneous in nature.
The evidence preponderates heavily that the event was traumatic in nature. Look at the medical records made at the time of the event. Dr. Fields and Dr. Weibel wrote: “Final diagnosis: Thrombosis of basilar artery, traumatic in origin.”
Significantly when this medical record was made there weren’t any lawyers involved then. There wasn’t any lawsuit. There wasn’t any jury to try to impress. The treating physicians simply wrote that because that was their diagnosis. I think it is also very important that the jury consider that when Dr. Fields and Dr. Weibel acted on that diagnosis, the results were immediate and Cesar’s life was saved. Thus, Dr. Fields and Dr. Weibel were 100% correct in their diagnosis and in their treatment and the evidence is clear that they are also 100% correct that this was a traumatic event.
Most significantly, remember the admissions by defense witness, Dr. Weintraub on cross-examination: “Doctor, if you had been presented with all this evidence that Dr. Weibel saw on differential diagnosis, you wouldn’t fault his decision that it was traumatic in origin, would you?”
“No, I wouldn’t.”
“And, Doctor, you would have made the same decision, confronted with those same diagnostic results, wouldn’t you?”
So the vascular event is clearly traumatic in nature and the trauma was the G-forces applied to Cesar’s neck on the roller coaster ride.
Now let’s look at what Dr. Weintraub says happened and let’s see what evidence there is of it. What is Dr. Weintraub’s theory? You will recall that I asked him on cross-examination: “Doctor, as I understand what you are saying, you contend there is a congenital narrowing of the artery rather than a traumatic narrowing. Doctor, what happened to that congenital narrowing of the artery? There is no clot. There was no event. Nothing happened. Is it your testimony, Doctor, that nothing happened?”
Dr. Weintraub replied, “That’s right, nothing happened.”
Just like that. Out of nowhere, it all blocked up. No clot; no event; no nothing.
Thus, as jurors you must decide whether to accept the medical theory of Dr. Weibel, who actually conducted the arteriogram, who personally saw the thrombosis in the basilar tip and who personally saw the tear in the right vertebral artery or you must accept Dr. Weintraub’s theory that nothing happened. The two medical theories are mutually exclusive. In order to accept Dr. Weintraub’s theory that nothing happened, it is necessary that you totally reject the medical testimony of all three treating physicians. Medical testimony aside, common sense dictates that something happened during the roller coaster ride which caused Cesar Gonzalez to begin experiencing neurological symptoms of unconsciousness, vomiting, blurred vision, dizziness and slurred speech. The medical theory of the treating physicians, which has been demonstrated to you graphically, testified to under oath and is contained in the medical records which were written at the time of treatment, all confirm that the event which has lead to Cesar Gonzalez’ lifetime of disabling injuries was traumatic in origin and that the trauma was the violence created by the application of excessive G-forces to Cesar’s unrestrained neck during the roller coaster ride.
Now let’s address the inquiry raised by the Defendant. Defendants ask: “Why did you give an anticoagulant if you had a tear in the artery?” There is a very simple answer to that. You have a blockage in the basilar artery that’s killing this young man by cutting off the blood supply to his brain. The way to eliminate that blockage is to give an anticoagulant that breaks it down and allows the blood to flow again. That’s what happened. It saved the young man’s life.
The next thing we come to is the hiring of Dr. Carter Alexander. Now, make no mistake about it, as a result of this suit being filed, Dr. Carter Alexander was hired to aid in the defense. Dr. Carter Alexander told Astroworld: “You have got a problem with the seat design on this roller coaster. You had better replace them.” They replaced them. Injuries dropped drastically. So, if nothing else good comes from this lawsuit, at least it forced Astroworld into replacing the seats on this roller coaster, thereby rendering it safer for all of our children.
Let’s look at the situation which Dr. Alexander confronted. In his first visit at Astroworld they told him about the accidents that occurred during the first 23 days: 55 accidents; 16 major injuries; 39 minor injuries. Then they talked about Cesar Gonzalez’ case. Think how easy it was to solve this problem. After that, Dr. Carter Alexander did not say, “Let me go ride the roller coaster. Let me observe the ride in action. Let me walk the track.” Dr. Carter Alexander said the obvious thing: “Let me look at the seats.”
After 45 minutes of looking at the seat design, Dr. Alexander said: “Monty, you have got a problem. These seats are not adequate for handling the lateral loads.” The ones he refers to in this letter: “You need to add padding to the lap bar. You need to add padding to the seat. You need to add padding to the back. You need to incline the seat. You need to protect and restrain the rider all the way around. Restraints on the side, restraints along the back.” You saw the pictures of what he did to the cars. But one thing that you will want to consider: What happened after he made the changes? This is our evidence in the case. The year before he altered the seats, 1985, 143 total injuries recorded, of which 59 were head and neck injuries. The year after he made the modifications: 22 total injuries, of which only seven were head and neck injuries.
Now, we went over these 22 injuries with you — remember all the knee injuries. It was a whole different problem. So, the neck problem was solved by changing the seats on the roller coaster, which they did as a result of us filing this lawsuit and proving the design defect on discovery.
Now, remember the next thing that we talked to Dr. Alexander about? “Doctor, if you had been hired in 1976 would that first 23-day report, with 55 accidents in it, indicate to you that a problem existed?”
He said, “Yes, it would. I would want to do accelerometer testing to see what the forces are, and so forth.” And he recommended accelerometer testing for the purpose of protecting passengers.
Mr. Jasper said, “We didn’t do accelerometer readings to protect passengers. We did accelerometer readings for maintenance problems.”
And let’s talk about notice of the injuries as constituting a pattern. What notice did they have, and what they could have done in 1976.
In terms of accident history pertaining to the Texas Cyclone, it is a fact that the incidents of injury involving the head and neck are quite high. This is to be expected, in light of the almost total encapsulation of the lower body and by the physical characteristics of the seat and associated restraint straps and lap bar. That’s exactly what I questioned him about: “If you lock the lower body in, and let the upper body whip about, you are going to get this type of injury,” as Dr. Alexander agreed. This leaves the upper one-third of the body subject to the acceleration forces. Dr. Carter Alexander told Astroworld, “Your problem is lateral forces, not having the head restrained. He solved that problem by changing the seat design, and the injuries dropped off appreciably.
The Court is asking you if the Cyclone was defectively manufactured. Now, what is meant by the term “manufactured?” You understand that there is no problem with the superstructure. When Astroworld’s roller coaster generated excessive G-forces, they had the obligation to their customers to restrain them in such a way as to effectively deal with the forces. There is no problem with normal G-forces. The forces are fine, so long as riders are adequately restrained, in order to cope with them. When the Court asks you concerning the roller coaster: “Was it defectively designed?” look closely at the definition given to you by the Court of “defective design.” Is it unreasonably dangerous, taking into account the utility of the product weighed against the risk involved in its use?
Now, what is the utility of the product? A thrilling ride. What is the risk involved in its use? The risk is head and neck injuries, and injuries of other types. Can you eliminate the risk without affecting the utility? Answer: Yes. It was done. As a result of this lawsuit being filed, Astroworld made changes that greatly reduced the risk while keeping the utility. It is still a thrilling ride out there today. They still fill it with riders every time they run it, as Mr. Glennan told us. So, by the definition of “unreasonably dangerous,” this was a very high risk of injury to passengers that was unnecessary, which could be very easily eliminated without affecting the utility of the ride. If they had done this before Cesar Gonzalez rode the roller coaster he would be healthy and happy today and we wouldn’t be here.
And remember what they did to eliminate the risk? In their own maintenance shop they used a naugahyde padding and wood for framing. They spent $5,000 to correct this problem in 1986 that they should have corrected in 1976.
Ladies and gentlemen, they have spent more money hiring expert witnesses to come to this court and deny their responsibility than they spent curing the problem. And I submit to you that it could have been done — as Carter Alexander said, “If I had been hired in ’76, I would have done the same thing then.”
There have been three seat experts testify in this case. Our expert, Dr. Ray Bradley, in charge of seat design at NASA for every space vehicle from Mercury through the Sky Lab that is circling the earth today. Our expert, Ron Hellmann, worked on the same NASA programs. Including Defendant’s expert Carter Alexander, all three of those gentlemen agreed this was a defectively designed seat that needed to be corrected. How many seat design experts came into this courtroom and said there was nothing wrong with those seats and nothing needed to be done to restrain these customers and to protect our children from those violent forces? None. Not a single one.
Thus, you will have no difficulty with the question as to whether the seat was defectively designed. All of the seat experts, plaintiff’s and defendant’s, agree that it was. Next, when you consider the issues on whether Astroworld was negligent, consider: Were they negligent in light of the knowledge that they had of prior accidents? The pattern that was there? Look at the nature of the injuries arising out of those accidents. Look at the compression fracture. Look at all the head and neck injuries. Look at the pattern contained in these accident reports. There was a pattern of injuries occurring in the same location: at the upper south curve, first drop; upper south curve, first drop; upper south curve, first drop; over and over and over. My neck was popped. My neck was popped, my neck was popped. My head; my shoulder. All upper body; case after case. Those establish a pattern. As Dr. Alexander refers to it, the history of injuries showed a definite pattern.
But they had no one looking for patterns. They did not have anyone who sat down with those accident reports and said, “Let’s compare to see what patterns are occurring here? Do we have one area of the roller coaster where more injuries are happening? Do we have a pattern of similar types of injuries that we need to address?”
They absolutely ignored it. And I submit to you that ignoring the patterns, created the problem. Ignoring the patterns ignored the problem. Ignoring the patterns failed to eliminate the problem. Ignoring the patterns constitutes negligence on the part of Astroworld.
And when you consider negligence, when you measure their conduct to decide if they were negligent, read carefully the test that the Court asks you to apply to their conduct: Is this something which a very cautious, very competent and very prudent person would have done under the same or similar circumstances? I submit to you that a very cautious, very competent and very prudent person would have recognized the pattern of injuries; would have recognized the problem, and would have achieved the very, very simple solution many years earlier. If they had done so before Cesar Gonzalez’ disastrous ride, we wouldn’t be here today, ladies and gentlemen.
Even when they did a major overhaul on the Cyclone in 1981, they had accident records. Astroworld doesn’t have the accident records now from ’77, ’78, ’79, and ’80. So, we don’t know what those accidents statistics were. We extrapolated the figures. We do know this: there were enough of them that they caused a storage problem. Mr. Glennan said, “No, we had to move those injury reports out because they were causing a storage problem. So, we disposed of them.” It is clear that in ’81, when they did a major overhaul, they did not address this problem of a pattern of similar injuries.
Now, Mr. Simpson is going to tell you that this is one isolated event out of 8,000,000 passengers who have ridden this roller coaster. That this is a stroke. That Cesar Gonzalez is the only person that has ever had a stroke on this or any other roller coaster.
First of all, the number 8,000,000 was an estimate by Mr. Glennan as to how many people have ridden the roller coaster. I submit to you that that’s not the best evidence. The best evidence would have been the turnstile count which they said they did not have. But that’s not in the record. So, let’s deal with the 8,000,000 estimate.
First of all, if you say 8,000,000 people rode the Cyclone, that’s simply not true, because there were not 8,000,000 different people. You have the same people riding the Cyclone over and over and over. You heard Dr. Ray Bradley and Dr. Fields say that the people who would ride the Cyclone over and over would be the ones who are not experiencing the problems. The people who ride it once and never ride it again are the people who have those physiological effects. The people who ride it over and over are the ones that get the thrill of it without having any physiological effects. So, we don’t know how many different people have ridden the Cyclone.
But it doesn’t matter, because we are not dealing with one clot. We are not dealing with one stroke. We are dealing with years and years and years of head injuries and neck injuries that should have put them on notice of the nature of the seat design problem. We are dealing with a failure to recognize a pattern of injuries, a failure to determine the cause of the injuries and a failure to correct the problem that caused the injuries, namely, defectively designed seats.
Let’s talk for a moment about the damages in the case. On Issue No. 5 there are two types of damages. First we have what we call the special damages, which would be, in this case, the medical expenses and the damage to wage earning capacity.
The medical expense proof in this case is really undisputed. Past medical in this case is $182,648. The future medical is $74,000, based upon the rehabilitative care that Dr. Pollock testified that Mr. Gonzalez needs: cognitive rehabilitation, job coaching, and psychological counseling, that total $74,000. And again, that figure is undisputed.
But let me remind you of what Dr. Pollock said: We are not in a position to effect a cure or a total rehabilitation for Mr. Gonzalez. He has been rehabilitated to the extent that he can. He is as good as he is going to get. Why? Because he has brain damage. That portion of the brain that was denied oxygen by the cut-off of the blood flow is dead. He is not going to regain use of his left arm, or his left leg regardless of how much therapy he has. His disabilities are permanent.
The purpose of therapy is twofold: first, to help him cope with living as a handicapped person in our society. To train him psychologically to meet job requirements, so that he can compete in our job market. Secondly, to help Cesar cope with his mental anguish. We are going to talk about mental anguish more in just a moment.
Now let’s talk about the other element of special damage, which is wage earning capacity. In the past we are claiming nothing for the last five years. We claim no damage to his wage earning capacity. Why? Because during that time frame he would have still been in school. He wouldn’t have been earning wages. He would have been a student in high school and college. So, the answer to that is zero.
The evidence of future damage to wage earning capacity comes from two sources. First of all, Dr. Cloninger testified that the average starting salary in the accounting market, if he had been allowed to complete his Bachelor’s work, is $25,000 per year. You understand from Dr. Pollock that Cesar is unemployable. However, we are saying that, because of the tenacity and personal integrity of this young man, if he gets the rehabilitation, we are giving him the benefit of the doubt that he will be able to compete for a minimum wage job or $7,000.00 a year. That makes the damage to wage earning capacity $18,000.00 per year. You heard the statistics from Dr. Cloninger and his chart is in evidence. If you look at 18,000 per year, you project it over the rest of his life, and discount it to present value — which is exactly what Dr. Cloninger did — that arrives at Cesar’s future damage to wage earning capacity in the amount of $666,648.
Defendant’s annuitist, Mr. Bass testified that he is familiar with the Big 8 accounting firms. In addition to the salary, they have benefit packages that total 7.8 per cent of annual salary. We have to take the loss of salary and add that to it. That totals $51,000 bringing Cesar’s total damage to wage earning capacity to $718.646.
Now let’s discuss Cesar’s general damages of mental anguish, physical pain and suffering, physical impairment and disfigurement. The pain and suffering is obvious. Mr. Gonzalez still has pain down the left side of his body. He has to wear a TENS unit, a device that sends electrical stimulations in response to muscle spasticity to relieve the pain. Cesar wears a TENS unit today; he has worn a TENS unit since he got out of rehabilitation, and he will wear a TENS unit the rest of his life, to help him cope with the obvious pain. Pain has been appropriately described as a window into hell. People who are in pain often beg for death. No one begs for pain. But as a result of Astroworld’s negligence, Cesar Gonzalez has endured five years of physical pain and suffering and is confronting 47 more years for which the law says he is entitled to be fully and justly compensated. Further, as jurors you are the guardians of that law and it is part of your duty as citizens to decide the amount of the full and just compensation to which Cesar is entitled.
The next element of damage is mental anguish. Listen to what Dr. Pollock said about Cesar’s mental anguish: “This young man is in the first percentile for severe depression in the world.” What does that mean? That means that 99 per cent of the people in the world are less depressed that Cesar Gonzalez.
Can we possibly identify with that level of mental anguish? That, however, is a very important part of your task as jurors. While none of us like to confront physical pain and suffering or mental anguish of others, it is absolutely crucial to the rendering of full justice in this case that you, as jurors, confront and carefully consider the value required to compensate for the mental anguish and physical pain and suffering which Cesar Gonzalez must confront on a daily basis for the remainder of his life. Only through your willingness to discuss and evaluate Cesar’s physical pain and suffering and mental anguish can an adequate award be achieved or full justice rendered to this fine young man.
The next element of damage is Cesar’s physical impairment. This refers to Cesar’s inability to do all of those activities that he could do before the injury, which do not bear on wage earning capacity. Cesar doesn’t participate in the church’s social and athletic activities as he did before his injury. He goes to church but he doesn’t interact with the other youngsters. He doesn’t go fishing anymore with his dad. He doesn’t go swimming at the beach anymore. He doesn’t go to the social functions. He doesn’t go dancing. All the long list of things that he used to do before. He doesn’t walk 25 miles anymore to raise funds for crippled children as he did before the injury. Now, what does that tell you about this young man? He can’t do these things anymore. That’s physical impairment.
The next element of damage is disfigurement. Disfigurement is how Cesar is perceived when we look at him; How his body is physically disfigured, and the mental anguish he suffers as a result of such disfigurement. The disfigurement in his case is that he has to hold his left arm in this fashion. And when he moves, as he testified, he has to turn his left hip, so he can walk, but not in a normal fashion. He has to walk in this fashion. And that is disfigurement. And that’s something that he will have to deal with for the next 47 years.
Now we come to the evaluation of these elements of damage. While that is clearly your job, let me suggest a segmental approach, that is, Cesar’s history since the injury divides easily into segments. The first segment begins the day Cesar regained consciousness in T.I.R.R. and lasts until he was released from rehabilitation and sent home. As you see from the chart, that was a period of 248 days. What was his condition during this 248 days? Did he experience physical pain and suffering, mental anguish, physical disability, and disfigurement? Let’s review the evidence. When he awakened he was paralyzed from the neck down. He had a trach tube in. He was being fed by IVs. He could not speak. He could communicate with his family only by blinking his eyelashes. He would blink once for yes; twice for no. That’s the condition he found himself in when he awoke from the coma. When you consider physical impairment, consider that this is as total as physical impairment can be – 100 per cent.
Mental anguish. It is your job to evaluate Cesar’s mental anguish. You must consider the fear, frustration and constant mental agony that would inevitably accompany awakening from a coma to find that you have the total inability to move any portion of your body from the neck down; that you are totally unable to speak or cry out for help and you are completely overcome with the fear that this is a permanent condition. Cesar’s fear was overwhelming, his mental agony was constant and all of his dreams for the future were completed destroyed.
Ladies and gentlemen you need to consider the incredible strength, courage and personal integrity of this young man, Cesar Gonzalez. Confronted with total disability, did he give up? No. This brave young man started as a newborn child. He had to learn all over again how to say “Daddy” and “Mama.” He slowly and painstakingly learned to speak, to read, to write, to learn to communicate. He had to learn to hold a knife and fork and work his way through infancy and childhood once again. Cesar endured one of the longest rehabilitative programs in the history of Texas Institute Rehabilitation and Research (T.I.R.R.). But because of his personal tenacity, personal integrity, and his willingness to fight, this very admirable young man came back. Thank God, he made a remarkable recovery. And he is not through. He is going to do better. But when you look at that 248 days in T.I.R.R.; in the hospital, when he was going through that painful and frustrating rehabilitation on a day by day, hour by hour, minute by minute basis; you have to confront, measure and evaluate Cesar’s mental anguish.
And you have to measure, physical pain and suffering, physical impairment and disfigurement which Cesar also endured during this period.
I’m going to suggest to you that the figure that will compensate for that is no less than a thousand dollars a day. That’s where this figure on our damage board comes from. $248,000 for the period in T.I.R.R.
A second segment of time for your evaluation is the 1,478 days as indicated on the chart. This is the time from Cesar’s release from the rehabilitation unit through today.
1478 days after he was released from the hospital Cesar is still suffering physical pain, physical impairment, mental anguish, and the pangs of disfigurement 16 waking hours of every day.
There is not one waking moment of one hour of one day that Cesar is free from physical disability, mental anguish and disfigurement, which he suffers as a result of Astroworld’s negligence. Since Cesar suffers minute by minute, and hour by hour, let me suggest that you evaluate his suffering in the same manner, hour by hour. Determine what will fairly and reasonably compensate Cesar Gonzalez for one hour of mental anguish that he must endure. I submit to you that for this time segment, from Cesar’s rehabilitation release to the time of trial, a period of 1478 days, that at least $10.00 per hour represents a minimum figure for fair and just compensation for the mental anguish which Cesar endured during that time frame.
How do we measure the mental anguish monetarily? One thing to consider is what do we pay to avoid physical pain and mental anguish. We pay $30.00 for a shot of Novocain to avoid 30 minutes of pain and suffering in the dentist chair, and think nothing about it. How many of us have gone to the dentist and said, “No, just get out your drill. Forget the novocain shot. I’ll take the pain. I want to save my $30.” That’s a dollar a minute we gladly pay to avoid pain and mental anguish. If we pay one dollar per minute to avoid physical pain and mental anguish, does $10 per hour begin to reasonably compensate for the enduring of the constant mental anguish which Cesar Gonzalez has lived with, minute by minute, hour by hour and day by day for the last 1478 days. That is your determination.
In this second time segment which is delineated as phase two on our damages chart, Cesar has suffered sixteen hours of mental anguish per day for 1478 days for a total of 23,648 hours. If you determine that $10.00 per hour is enough to compensate for Cesar’s mental anguish during this time frame, then you should award $236,480.00 for the phase two mental anguish.
The next element of damage is Cesar’s physical impairment during the phase two time frame. We respectfully suggest that his physical impairment was so overwhelming, so frustrating and so devastating to him during the time from the release from the rehab through the present date, that the same figure of $10.00 per hour would be a fair and reasonable compensation. Therefore we suggest $236,480.00 for the phase two physical impairment which Cesar has suffered through today.
With respect to pain and suffering and disfigurement during phase two we suggest that two dollars per hour is a reasonable compensation for physical pain and two dollars per hour is a reasonable compensation for physical disfigurement. When you consider the litany of disabilities which Astroworld has thrust upon Cesar Gonzales, remember that, as Americans, we have a Constitutional right to be free from pain and mental anguish. The government of the United States and the various states can inflict death but, in our society, physical pain and suffering is viewed with such horror and disdain, that we have a constitutional right to be free from it. That right has been taken away from Cesar Gonzalez by Astroworld.
We are going to talk more about the future damages, which are delineated on our damages chart as phase three. However, since Cesar has the burden of proof, I have the right to open and close the argument. I have the privilege of addressing you now, and Mr. Simpson will argue and then I will have the final opportunity to speak to you. We will talk more about Cesar’s damages at that point.
As we sit here today, this young man has a 47-year life expectancy. He is looking into the year 2,036. And you have got to remember that on voir dire examination I asked you: “Is there any member of this panel who, if you are chosen as one of the 12 jurors in this case, who will not be able to project damages and award damages for 47 years in the future?” Because the fact is, with irreversible brain damage, this young man is going to be physically impaired in the year 2,030. He is going to have mental anguish in the year 2,020. He is going to always have the disfigurement. So, it is your job to project 47 years into the future and award damages accordingly.
You will also recall that I asked you on voir dire examination, is there any member of this jury panel who, if the evidence in this case supports it, cannot bring back a verdict in excess of $5 million? Ladies and gentlemen, the evidence in this case clearly supports damages in excess of $5 million.
You say, but $5 million is so much money. True, 52 years of having a large portion of your life destroyed and living with the remains is a lot of mental anguish. It is a lot of disfigurement. It is a lot of physical impairment. It is a lot of physical pain and suffering.
Is $5 million nearly enough money to fairly compensate Cesar for a lifetime of disabilities? How much is $5 million to compensate for 47 years of physical pain and suffering, mental anguish, physical disability, disfigurement, damage to wage earning capacity and medical expenses? Ladies and gentlemen, we live in a society in which $53.9 million was recently paid for what? Paint on canvas. Irises, by Van Gogh. Why? Because it was the work of a master. Is $5 million, less than ten percent of the cost of that painting, nearly enough compensation for waking up every morning of your life for 47 years confronting Cesar’s physical disabilities, his mental anguish, his physical pain and his disfigurement? Is 10 per cent of the price of a painting enough compensation for a lifetime — a lifetime — of waking up every morning of your life with this physical disability? And with this mental anguish? Is $5 million nearly enough for 52 years of pain and suffering, mental anguish and physical disfigurement? I submit to you it is not. Not at all.
We talked about evaluating one hour of mental anguish at $10.00 per hour. Counsel says $10.00 per hour is just too much money to reasonably compensate for a devastating level of mental anguish which places Cesar, according to Dr. Pollock, in the highest one percent of the world’s misery index. But your job, among others, is to apply our societal standards to reasonable compensation. Ladies and gentlemen, we live in a society in which two men by the names of Spinks & Tyson recently split $23 million for 93 seconds in a boxing ring. Can $10.00 per hour even begin to reasonably compensate Cesar Gonzalez for what he is destined to endure for the remainder of his life. That ladies and gentlemen is your determination.
Ladies and gentlemen, my last plea to you before I sit down is going to be that you meet your obligation as jurors and render full, complete justice for Cesar Gonzalez. Full, complete justice means awarding absolutely full, total compensation for the disabilities which this young man is forced to endure. Anything less than full justice is injustice. Permit me, if you will, to give you one last example of what I mean by full justice.
Assume that instead of injuring Cesar Gonzalez on a roller coaster, an Astroworld truck in the Astrodome parking lot had run into a horse trailer and killed Seattle Slew, the great ten million dollar racehorse. If we were in Court today seeking damages for the destruction of that great horse and we offered as evidence proof that checks had been written in the amount of $10 million for the purchase of Seattle Slew, then that would be the actual value of the horse and that would be the amount of loss caused by Astroworld’s negligence. If the jurors retired to the jury room and said yes, they were negligent. Yes, the horse cost $10 million dollars. But that’s just too much money for a horse. Why don’t we award them $5 million?
Well, ladies and gentlemen, $5 million, in that case, would be half justice. And half justice is injustice. In fact, anything less than total justice is injustice.
And I submit to you that the evidence in this case supports an award in the total amount of at least five million dollars in order to achieve full justice.
Now let’s consider the issues which you are called upon to answer:
No 1: Were they negligent? Yes. Clearly.
Issue No. 2: Did they defectively design it? Yes. Clearly.
Issue No. 3: Were they negligent by an ordinary care standard? Yes. Clearly.
Did the roller coaster or the defective design cause the injury? Absolutely.
Issue No. 5, damages: Past damages, pain and suffering, mental anguish, 550,000.
Nothing on loss of earnings. Disfigurement, 55,000. Physical impairment, 550,000. Medical, 182,648. Future damages, pain and suffering, mental anguish, 2,500,000. Damage to wage earning capacity, 718,646. Disfigurement, 550,000. Physical impairment, 550,000. Medical expenses, 74,000.
That, ladies and gentlemen, is what the evidence supports in this case, that is what minimum standards of justice require and that’s how we ask you to answer the Issues in this case.
Now I’m going to sit down now and listen, along with you, to the hardest part of the trial for me, which is listening to Mr. Simpson talk about the case. But let me say this: If Astroworld feels that the $5,000,000 figure on this board is too much money for 52 years of physical impairment, 52 years of mental anguish, 52 years of physical pain and suffering, 52 years of disfigurement, Cesar’s damaged wage earning capacity and his medical expenses then let Mr. Simpson come to the board, I will leave a blank here, and fill in the amount of money which Astroworld says would fairly and reasonably compensate Cesar Gonzalez for his 52 years of misery.
Thank you very much.
THE COURT: All right. Thank you, sir.
(Whereupon, the defense counsel made his summation to the jury, which is not transcribed here.)
THE COURT: All right. Thank you, sir. Mr. Nations.
MR. NATIONS: May it please the Court; Mr. Simpson; Mr. Weinstein. We are not asking that Astroworld or the Texas Cyclone be judged by NASA standards. We are asking that Astroworld be judged, as it must, by the standard given to you by Judge Cartwright in the Charge.
And you recall on voir dire examination I said: Will each of you promise to follow the Court’s Charge in the case, whether you agree with the law or not?
The Court gives you the law. The standard is right here. It is not a NASA standard. The Court defines to you, in Issue No. 1, negligence. My friend, Mr. Simpson, kind of skipped over a couple of words in the definition, so I thought I would bring them to your attention. Negligence, when used with respect to the conduct of Astroworld Inc., means failure to use a high degree of care. This is not the NASA standard. This is the legal standard. This is the standard that the law imposes upon companies who have rides on which they carry the public for hire. Failure to use a high degree of care. What does that mean? That is failing to do that which a very cautious, very competent and very prudent person would have done under the same or similar circumstances. That’s the standard in this case.
There is a standard on the fourth Issue, also. It is the ordinary care standard. They are also held to the standard of ordinary care, that which an ordinarily prudent man would have done under the same or similar circumstances. But make no mistake about the standard. So, let’s examine what they did in light of that standard. There is talk about Dr. Alexander versus Dr. Bradley. Let’s talk about Dr. Bradley for a moment. When NASA decided to get into the space shuttle business the first man that occupied an office at NASA to start the whole shuttle program was Ray Bradley. He was the project manager. He is the first man who sat at a desk and put pencil to paper and started designing the Space Orbiter. And just so there is no question about it, what he designed was the Space Orbiter, the spacecraft that flies in orbit around the earth and returns to land. Ray had nothing to do with the booster system, which is the part that caused the tragedy.
Defendant displayed a rather high degree of temerity in disputing Dr. Ray Bradley on the subject of G forces. Why not debate Bear Bryant on football? But if Ray Bradley, the man who designed the shuttle, the man who received an award from NASA for his brilliant work in modifying the wings of the shuttle after it was first used; if the man who modified the wings on the shuttle that flew, left this earth, went out into orbit and landed back on this earth while this trial was going on, if that man doesn’t understand the calculation of G-forces, then NASA is awfully lucky that their plane got back in with a re-entry speed of 16,500 miles per hour without the forces tearing it apart. Ray must know something about G-forces.
One last thing on Dr. Bradley. I mean, I’m belaboring the obvious, and I know that. But when we sent men to the moon, we were orbiting the moon. And we needed to get them from the orbiting spaceship down to the moon and back again. Who did NASA choose to design the lunar lander? Dr. Ray Bradley. He designed the whole system for getting man from the spaceship to the moon and back again. And it worked beautifully. So, if you believe Ray Bradley knows nothing about how to calculate G-forces or how to do amplitudes on G-forces, how to transfer them from the seat of its roller coaster up to Cesar’s neck, where it really matters, there is nothing else I can tell you.
What I can tell you is this: The statement that 20 Gs will rip wings off planes, that’s beyond human tolerance, that’s not the testimony in the case. You remember what we discussed about human tolerance? That 20 Gs is the low end of human tolerance. That’s where you begin to see physiological affects in human beings. That’s where some people will start to get dizziness; blurred vision. But that’s what they deal with in jet fighter pilots. They are flying multi-million dollar aircraft, blurred vision to a fighter pilot can be the end of it. That can be death, because they can lose control of the aircraft.
Now, is Dr. Alexander really in conflict with Dr. Bradley? No. The problem on the Cyclone is not the G-forces. The G-forces haven’t changed. When Mr. Cobb testified I said, “you understand, sir, we have no problem with the way you designed that structure. That structure is still the same. Those G-forces are still the same.” But what did Mr. Cobb say when I asked: “Mr. Cobb, when you finished designing that structure, who was supposed to take care of the cars?” He replied: “That’s Astroworld’s job to pick the cars.” Astroworld claims “well, these are the cars they use all over the United States.” How could those be bad. Very simply, there had never been a roller coaster with the dynamics of the Texas Cyclone. It is the most thrilling, the most exciting, and it has different curves and banks than the rest of the roller coasters. So, cars that work on one roller coaster will not work on another roller coaster. And you have to make adjustments in passenger restraint to compensate for the added G forces.
Where they failed miserably in this case was, after 23 days with 55 injuries, they failed to recognize that they had a problem that they needed to address. The pattern of injuries to necks and heads of their passengers put them on notice of the problem but they chose to ignore the pattern. That’s where they failed.
Dr. Alexander said; “They are asking us these days if the airplanes we are flying are too hot. And the answer is a resounding “No,” so long as we properly restrain our pilots.” The answer is exactly the same on the Texas Cyclone. You heard me ask him: “Doctor, isn’t it true that the G-forces on the Cyclone don’t really matter, so long as you restrain and protect the passengers?” He agreed. So, there is no great conflict here about G forces; or about human tolerance, the conflict is about failure to properly restrain passengers.
Let’s talk about a couple of other disputes that exist in the case. Dr. Cloninger versus Mr. Bass. I’ll agree with one thing that Mr. Simpson said about his hired gun annuitist. He said, “Mr. Bass puts his money where his mouth is.” And he certainly does. Mr. Bass told us on cross-examination that he makes $200,000 a year testifying as a witness in cases like this. That is definitely putting your money where your mouth is.
But the fact is, in this case, Dr. Cloninger has given us the calculations that have projected Cesar’s future earnings, and discounted them back to present value.
Now, recall what I asked Mr. Bass about his starting salary when he entered accounting with Peat Marwick, one of the big eight.
“What did you make as a starting salary?
“Seven thousand a year, 22 years ago.”
We don’t know what he makes today, as a salary. But what we do know is this: If we took the one quarter per cent per year — that’s what he said, one-fourth of one percent a year — that he would attribute to Cesar Gonzalez for his own growth potential in earnings, applied it to that $7,000 a year for Mr. Bass, he would have the ability to earn $30,000 a year. That’s the standard he wants to apply to Gonzalez.
But what do we know about Mr. Bass? We know that Mr. Bass makes $240 an hour. $240.00 an hour, on a standard forty-hour week, is $500,000 a year. So, he completely failed to take into account the ability, the tenacity, the personal spirit, the ability to fight back that this young man, Cesar Gonzalez, has demonstrated.
He took nothing into account except Cesar’s junior high grades. I would sure hate to be evaluated based on my junior high school grades. And I don’t think that’s the basis for your evaluation, either, ladies and gentlemen.
I think the basis for your evaluation is to look at the condition this young man was in on July 8, 1984 and look at the condition he is in today, and see how he got there. He got there by a willingness to fight back; a willingness to overcome handicaps; and a willingness — an absolute drive — to improve his life. This young man is brain damaged, and he is out there right now competing at the college level. And he is not in handicapped courses. He is taking regular, college-level courses. And he is doing everything he can to get through them. And he is going to make it. He is definitely going to make it.
We are not concerned about that. We know this young man, this courageous, persistent, hard working young man. He will make it.
Now, Mr. Simpson appropriately said, as the Court tells you, “Do not let sympathy or bias play any part.” We don’t want sympathy. Cesar Gonzalez doesn’t need sympathy. He got enough sympathy in Methodist Hospital. He got enough sympathy at T.I.R.R. for 248 days. He got enough sympathy from his friends when they saw the condition he was in when he attempted to return to school. He has had enough sympathy to last him three lifetimes. We are not here about sympathy. We are here about justice.
So, let’s talk about justice. Now, we talk of money. We talk of money because there is no magic. Magic exists only in the world of children. We have to deal with reality. If this jury could wave a magic wand and return that young man in his former, healthy, happy condition to those two people sitting right there, Mr. And Mrs. Gonzalez, and say, “Here is your son back, healthy,” there is no one who can possibly believe that they wouldn’t leave here in the 99 percentile of happiness in the world rather than where Cesar is — the bottom one per cent — of severe depression. But we are not dealing with magic. We are dealing with reality. We are dealing with severe realities.
It is reality that Cesar Gonzalez has reached his maximum level of rehabilitation. That’s undisputed.
It is reality that Cesar Gonzalez experienced 248 days of horror. Quadriplegia. Vegetative state. Communicating with his eyelashes.
It is a reality that he endured 23,648 hours of adjustment to reality from the time he got out of rehabilitation until today. The life expectancy table is in evidence. It is a reality that his damages are based upon 47 additional years from today of future damages. At 16 waking hours a day, it is a reality that this young man will endure 274,000 hours of mental anguish in the future, because he will never be free of physical pain and suffering and mental anguish.
It is a reality that he will endure 274,000 hours of physical impairment in the future, because he is never free of it.
It is a reality that he will endure 274,000 hours of physical pain and suffering in the future, because he is never free of it.
It is a reality that he will endure 274,000 hours of disfigurement in the future, because he is never free of it.
Another reality is that he has to compete in a job market at the toughest entry level there is.
And those are the realities, ladies and gentlemen, that you have to deal with. Because that’s your role in the judicial system, to tell these folks what amount of damages equate to justice for Cesar Gonzalez.
Now, 47 years of future damages — it is easy to stand here and say “47 years in the future.” But that’s a hard, hard concept to grasp, that we are talking about damages that exist to the year 2036. We are talking about in the year 2,025 this young man will still get out of the bed in the morning and he will still have a crippled left arm and a crippled left leg. That he will still be suffering mental anguish. That he will still have the physical impairments. And they will never go away.
One way that we suggest that you might want to consider in trying to get a perspective on what 47 years in the future is, is to look back 47 years. If we did that, the end of 1941, Pearl Harbor, all the way through World War II. If this had happened then, and they had been projecting 47 years, this young man would have awakened on the morning of December 7, 1941 with his physical handicap, his mental anguish, his pain and suffering, his physical disfigurement and he would have gone through all the ensuing years enduring every waking moment with those physical impairments. All through the Truman years; the Korean War; all the way through the Eisenhower years. Every day of his life, awaking to the physical pain and suffering, mental anguish, physical disability and disfigurement that will plague him for the remainder of this life. Cesar would not have danced to the music of Elvis or the Beatles since he would have been sentenced by his physical disabilities to the role of spectator in many of life’s most enjoyable experiences. Bringing it through the Kennedy era, he would not have been able to appreciate and enjoy the Camelot days of the Kennedys, as other youngsters would, because of the problems that he has in dealing with society, primarily due to his physical disfigurement.
The great accomplishments of going to the moon and back. When Ray Bradley was over there designing the lunar lander, this young man would have still been, every day, fighting to cope with basic problems of life arising from his physical disabilities.
When the Astrodome was built, when the Summit was built, when the Houston Rockets moved here, and the Houston Aeros, this young man wouldn’t go to those games because he couldn’t cope with being jostled by the crowds.
If you look back at it that way, you can get some idea of what 47 years in the future is, which is what he is looking at today.
If we also look back 47 years and a jury in 1941 was awarding damages to Cesar to compensate him through the remainder of his 47 year life expectancy, those jurors never would have believed the cost of living in America in the 1960’s, the 1970’s and the 1980’s. The verdict they would have returned for Cesar in 1941, which would have been designed to last him through the next 47 years to 1988 would have been woefully inadequate because the purchasing power of the dollar has depreciated so substantially since that time. They would have failed to look into the future and give an actual evaluation of 47 years of future damages. We are asking this jury sincerely not to experience that same failure. None of us are economists and we can probably all agree that if we laid all the economists in the world end to end we would never reach a valid conclusion. However, we all have common sense and as we look back over the depression, recessions, booms, valleys and peaks, we know that the cost of living in America since 1776 has gone one way and one way only: straight up!! We can also reasonably conclude, based upon our common sense and experiences in life, that the cost of living over the next 47 years will continue to rise. Your verdict to Cesar Gonzalez must predict, project, and fully compensate him through the year 2035 and for all the intervening years and the verdict which you return in this case is going to determine the destiny of this young man for the next 47 years. We cannot come back if your projection is wrong and the compensation is inadequate. Your verdict is not written in pencil, it is written in indelible ink and cannot be changed if it is inadequate. Therefore, despite the fact that waiting for the jury to conclude deliberations is always the most difficult part of the trial for all of the clients and the lawyers; we are going to ask you to take all of the time you need during your deliberation to carefully consider your verdict so that the collective wisdom which goes into the verdict which you return will produce full and complete justice.
The quality of the first sixteen years of Cesar’s life was the responsibility of his parents, the quality of the five years since this tragedy was dictated by Astroworld’s actions, the quality of the rest of his life is in your hands. As we discussed, three weeks ago on voir dire examination, the 12 of you will have the difficult and unpleasant task of confronting, carefully considering and calculating a dollar value to compensate Cesar for 52 years of physical pain and suffering, mental anguish, physical disability and disfigurement. Such a grizzly audit is difficult, but indispensable. You and I only have to discuss the physical pain and suffering, mental anguish, disability and disfigurement. Cesar has to live with it every waking moment of his life.
After this trial is over I move on to my next trial, the judge calls a new case, the defendants return to their jobs at the amusement park, hopefully wiser and more safety conscious, but Cesar will continue to live with the results of Astroworld’s conduct for the next 47 years, minute by minute, hour by hour, day by day. There will not be one day during the year 2000, 2010, 2020, or 2030 when Cesar does not have to cope directly with his inability to use his left arm. When he can walk without dragging his left leg or when he can speak clearly. Since Cesar has to confront his pain and suffering, mental anguish and physical disability for 274,000 waking hours in his future, justice demands that in your role as jurors, you directly confront Cesar’s pain and suffering, mental anguish, physical disability and physical disfigurement for a few hours in the jury room. None of us like to confront pain, to talk about it, to listen to others talk about it or to try to put a dollar amount on enduring pain. But if full and complete justice is to be rendered, you must meet your full and complete duty as jurors and directly and thoroughly confront, discuss, consider and evaluate Cesar’s lifetime companions, physical pain and suffering, mental anguish, physical disability and physical disfigurement.
What will it take to compensate Cesar for 47 years of future pain and suffering, mental anguish, physical disability. We have projected the damages, on a per diem basis. Consider 47 years, break it down into the number of days; the number of waking hours, we conclude that Cesar will endure 274,000 waking hours of future disability as a result of the injuries inflicted on him by the actions of Astroworld. How do we apply the per diem calculation to the future damages which Cesar will endure? Follow me on the damages board as we review each of the elements of damage which Cesar will suffer in the future.
Consider the mental anguish. What amount of damages would fairly and reasonably compensate this young man for one hour of the severe depression; of the mental anguish that he faces every hour of his life? We suggest to you that $8.00 per hour for the mental anguish and $2.00 per hour for the physical pain and suffering, for a total of $10.00 per hour for future physical pain and suffering and mental anguish. As you can see on the damages board that would generate $2,740,000.00.
In computing disfigurement, at $2 an hour for the remainder of this young man’s waking hours, it totals $550,000.
We suggest the same calculation for physical impairment, which he clearly will have for the rest of his life, at $2 an hour, that totals $550,000.
The medical, Mr. Simpson has told you, there is no real issue about that.
Then we ask that you answer the Issues Yes, Yes, Yes, Yes. And return the damages issues in the manner in which we have indicated them on the board.
Ladies and gentlemen, that totals $5,700,000.
As we discussed three weeks ago on voir dire, we have seen two Cesar Gonzalez’ in this case: one an energetic, active, fun loving extrovert; the other a depressed, withdrawn, inactive introvert. One a bright, optimistic, hard working student; the other a brain damaged, pessimistic, struggling student. One a physically fit, athletic youth; the other a physically handicapped hemiplegic. One a happy, healthy Cesar Gonzalez before Astroworld’s tragic mistake; the other Cesar Gonzalez for the next forty-seven years.
Ladies and gentlemen, the numbers which we have suggested to you for use in the calculation of Cesar’s future damages total $256.00 per day. If we placed an ad in the Houston Post tomorrow which said: “Job available. No education necessary. No experience necessary. Pay: $256.00 per day. Only two requirements – one, you must suffer mental anguish, physical disability, physical pain and suffering and physical disfigurement every waking moment for the next 47 years and two, you can never resign.” Ladies and gentlemen, how many people do you think we would have applying for that job? Unfortunately, that is the job which Cesar Gonzalez holds, not by his own choosing, but as a result of the actions of Astroworld. The only remaining question is what will be his compensation for holding that job. That is your determination.
So on behalf of the Gonzalez family we sincerely pray that in serving in this vital role as jurors that God gives you the individual and collective strength and wisdom to render full and complete justice in this case. This is Cesar Gonzalez’ last day in Court. The lawyers have now finished our work, the Judge has completed his role and the clients await justice. Ladies and gentlemen, who is to render full and complete justice for this courageous young man who has had a lifetime of disabilities inflicted upon him? If not you, who? If not now, when? Thank you very much.
D. Howard L. Nations:
This is a rebuttal argument on damages in a products liability case involving a product that the manufacturer failed to recall despite their knowledge of the defect and the product resulted in the death of a seven year old child.
COURT: Mr. Nations you may proceed.
MR. NATIONS: Thank you, your Honor. Counsel, members of the jury.
Now we talk of money. We talk of money because there is no magic. Is there anyone in this courtroom who is so callous as to believe that if this jury had the power to work the magic of throwing open that courtroom door and having young David run down that aisle-way into the hands and into the arms of his parents, is there anyone here so callous as to believe that this young couple and their young son wouldn’t get up and walk out of this courtroom the happy, full family unit that they were before this disaster and turn around and smile and wave goodbye to all of us and never give a thought to money. But we talk of money because there is no magic. Magic exists only in the world of children. For young David, seven years of age, he faced the magic of every new day, the magic of new challenges, dreams, the magic of hitting a ball further than the other kids, the young athlete like his father had been. The magic of running faster than the other kids, the magic after a hard day on the playing field of Mom’s chocolate chip cookies and ice cream. That magic of Saturday afternoon when he got to get out there and play baseball with Dad. The magic of David’s life vanished on November 3, 1982. It vanished when a time bomb exploded and ended his life violently. A time bomb that crushed the life from his body, crushed his future and crushed the happiness of this family. A time bomb because this corporation knew of this defect, this corporation knew of this danger and this corporation knew that this had to happen eventually. We talk of money today because they talked of money earlier when, remember the evidence, at a Board of Directors meeting they considered that it would cost them $4,000,000.00 to recall this product. They talked of money and they decided , “no”, we won’t recall the product”, because that’s not $4,000,000.00 that they’re spending, that’s $4,000,000.00 out of net profit. And we all know that corporations exist solely for the purpose of making a profit. So we talked of money today because they talked of money then. When they talked they made a decision. And in that decision they gambled. They gambled with public safety, they gambled with young David’s life and they gambled with you, the jury system. They gambled that their lawyers and their hired experts would be able to come into this courtroom when the inevitable occurred and that time bomb exploded that their lawyers and their experts, and you heard them, would be able to come into this courtroom and walk out of here owing less than $4,000,000.00. We know that David lost this gamble. The question is, “Did this corporation lose this gamble or did they win?” And, that, ladies and gentlemen, is what we’re here about. And that’s what you’re here about. Did they win the gamble with David’s life. We talk of money now because they talked of money then. I told you on voir dire examination that the jury in this case, the twelve of you who are finally chosen, would have a tremendous burden. That burden being to place the value on a human life. A life that no longer exists. The court has told you, as we talked about on voir dire examination, that the law says that the parents are entitled to recover for loss of society, loss of companionship of young David and their own mental anguish which they have suffered as a result of that loss. We’re not here for sympathy, ladies and gentlemen, they’re not here for sympathy. This young couple had enough sympathy on the day of this funeral to last them three lifetimes. We’re not talking about sympathy. We’re talking about the law. Let suggest this to you. Don’t look at David’s death. That’s not what we’re here about, when we start talking about damages. Look at the loss. The court instructs you, loss of society, loss of companionship. Don’t try to measure death. Measure loss. What has this young couple lost? The loss is in the life that never will be. What is the loss to the family, to the parents of a young 7-year old boy? Where they just had a mere preview, less than 10% of his life expectancy. He lived seven years out of what should have been seventy-three. The loss, is all of those wonderful things in life that will never occur now that would have occurred but for this explosion. This young couple will never again share the daily joys, years, hopes and tears of young David. David, Sr. will never know whether young David would follow in his father’s footsteps. Would he have been the high school halfback as his Dad was? Would he have gone on to college? Would he have gotten an academic scholarship and got his MBA degree? Would he have followed in his father’s footsteps into the business, and taken over with David Moore & Son, eventually to be David, Jr. running it? They’ll never know those things. That’s their loss. They also lost all those special moments that occur as parents watch a child grow up. They’ll never know the experience of graduation from grammar school, Jr. High School, graduation from High School. They’ll never know the thrill of watching young David graduate from college. They’ll never know that special moment when young David walks in, with this lovely young lady and says, “Mom, Dad, I want you to meet my future wife.” David, Sr. will never experience the thrill of that moment when the phone rings and he picks it up and he hears, “Congratulations, Granddad, it’s a boy.” And most of all Ann will never, ever, ever, again hear the most magic words in the English language, “I love you, Mommy.” Days of celebration. Birthday, Christmas, Mother’s Day, Father’s Day, at the Moore household are now days of mourning. What is emptier than a home on Christmas morning, without the child there. So when we think of the loss in this case we could discuss and endless litany of loss from the life that never will be. Loss that was thrust upon this family by these defendants. The question is, “What is that life worth?” But ladies and gentlemen, we close now the book on David’s life. You, when you go into that jury room, are writing the last chapter of David’s life. They’ll never know what his life was worth. But these parents will know from your jury verdict what this community thought their young man’s life would have been worth. That’s the only indication they’ll have. But before we close the books on David’s life, let’s look at another set of books. Let’s look at the books of this corporation. Because as we speak here today, David’s death is carried as an asset, a $4,000,000.00 asset in the corporate books of this corporation. Because $4,000,000.00 is what it would have cost them to recall this product. So as we close the book on his life, let’s examine closely the corporate books of this defendant. When this Board of Directors gambled with the jury system, they gambled that you would bring in a verdict when the inevitable occurred of less than $4,000,000.00. And ladies and gentlemen, if you bring a verdict of $3,000,000.00 in this case, they’ll sit here with long faces and they’ll look like they’ve been stung, but when they get back to the corporate offices they’ll laugh. Because they’ll say, “Hey, we still won because we came out $1,000,000.00 ahead. It was a good business decision. It’s a million dollar profit and that’s why we exist, to make a profit.” So, if you bring in $3,000,000.00, they win. If you bring in $4,000,000.00 they still didn’t lose anything. That’s what it would have cost them to recall the product. So they haven’t lost a thing, they haven’t learned any lessons. Remember the cost, remember the purpose that we discussed of punitive damages? They have no motivation if your verdict is $4,000,000.00 or less, they have no motivation to keep this from happening to someone else. And neither does any other manufacturer in the industry. You, ladies and gentlemen, are acting as the conscience of this community. You have an opportunity that I don’t have. You have an opportunity that the Judge doesn’t have. You have an opportunity that their own attorney doesn’t have, and that is, to talk directly to the Board of Directors. They don’t listen to me, they don’t listen to the Judge, but you can believe that the Board of Directors of this corporation will listen to you. Because when the verdict in this case is brought in it will be reported directly back to this Board of Directors of this corporation. And I’m going to ask you, ladies and gentlemen, if justice, full justice is to be served in this case, if this family is to be compensated, and this corporation is to be told, don’t do this again, and other corporations who are similarly inclined are to be told, “Look what’s going to happen to you if you follow this same course of conduct, if you gamble with public safety, if you gamble with the lives of our children and if you gamble with our jury system, here’s what you’re going to get.” We have a simple system under the law for this. We call it “treble damages”. Whatever verdict you return, that’s compensation. Bring that in under compensatory damages. But over here where the Court asks you about punitive damages take that number, multiply it times three and make that the punitive damages in this case. Let your verdict in this case serve as a beacon in the sea of product manufacturers that says we, the jury, the conscience of this community and the guardians of public safety demand three things from you. We demand safety, safety, and more safety. We demand the protection of our children. Bring in your verdict that is large enough, that it goes beyond this company. Let your verdict reach out to the whole industry. Can you do that, ladies and gentlemen, by returning a compensatory verdict of $4,000,000.00 and a punitive damage verdict of $12,000,000.00? Full justice demands nothing less. Ladies and gentlemen, I now lift from my shoulder the mantle of responsibility that I’ve carried in this case for the last three years since this fine young family walked in my office and I place this mantle of responsibility very delicately in your hands and all I ask, on behalf of this young family, is that when you go home, after this case is over, when you walk into your house and talk to your spouse, or your children or your parents, and they say, “What did you do in Court?” You can look them straight in the eye and say: “We did a lot. We improved consumer safety in this country, we told a family what their young son’s life meant to this community and we rendered full justice.” Thank you very much.
IV. Sample Opening Statement
Howard L. Nations:
Ladies and Gentlemen, in order to understand why we are here today, let me take you back to where this tragedy began that has brought us together this week. It is a Saturday afternoon in September, 1991. Dave Winston is doing what many of us were doing on that fine Texas football afternoon: sitting in his den watching the Texas TCU game on television. We see Ann come in and tell Dave that there is no hot water coming from the tap in the kitchen sink. We see Dave do what most of us would do. He says, “I’ll take care of it during half time darling.” We see Dave go to the utility room and kneel to read the instructions on the water heater. Dave smells the faint odor of gas and finds that the pilot light has gone out. The instructions say, “when the pilot light goes out, wait a few minutes and then light it again.” Dave follows the instructions carefully thinking, as we all would, that the gas shut off valve on the hot water heater will work the way the manufacturer says it will.
We see almost two hours pass as Dave goes back to the den to watch the second half of the Texas-TCU game. At the end of the game, Dave being the faithful Longhorn that he is, happily tells Ann that now he will take care of the hot water problem.
We see Dave go back to the utility room where he no longer smells the gas odor. He strikes a long wooden match on the concrete floor and we see him as he reaches out to put the flame by the pilot light. We see an instant look of panic on Dave’s face as he hears the whooshing sound; he sees the flicker and the flash then the flame and feels the searing heat. Dave doesn’t realize that the pungent odor rushing up to his nostrils is from the singing and charring of his own flesh.
We see Ann rush through the garage to the utility room as she hears Dave’s screams; Dave’s clothes are entirely engulfed in flames and all she sees is an orange ball of fire as she hears his tormented screams emerging from that fiery ball.
Like a lobster thrown into a boiling pot, this gentle man is cooked from his ankles to the top of his head. Not an inch of skin is spared from that awful blaze, not his thighs, not his stomach, not his chest, not his eyes, not his ears, which are burned off.
We see more than four weeks, thirty-two long days and nights drag by in the hospital burn unit. Days and nights measured minute by minute by minute of misery, pain, anguish, despair and hopelessness until Dave finally finds the only peace left available to him, the peace of death. Sometimes in the quiet and lonely hours of the night, Ann still hears the echoes of her husband’s screams and awakens in the middle of her own nights to the sound of her own screams and the vision of Dave captured in that fiery ball of flame.
That, ladies and gentlemen is why we are here, because Dave Wilson trusted this manufacturer and followed the instructions on the side of the water heater with the shut off valve that didn’t really shut off the gas the way this manufacturer said it would.
HOWARD L. NATIONS
Florida State University (B.A., 1963)
Vanderbilt University School of Law (J.D., 1966)
Texas Board of Legal Specialization: Personal Injury Trial Law, 1980
Texas Board of Legal Specialization: Civil Trial Law, 1980
National Board of Trial Advocacy: Diplomate, Civil Trial Advocacy, 1983
National College of Advocacy: Diplomate of Trial Advocacy, 1994
Association of Trial Lawyers of America – Executive Committee (1991-1995)
Southern Trial Lawyers Association – Past President
Texas Trial Lawyers Association – Past President
Texas Association of Certified Civil Trial Lawyers – Past President
CONTINUING LEGAL EDUCATION:
Lecturer in all 50 states, 6 Canadian provinces and 5 foreign countries
South Texas College of Law – Adjunct Faculty
National College of Advocacy – Board of Trustees – Past Chair
State Bar of Texas CLE – Past Chair
Author, Structuring Settlements (ATLA Press, 1987)
Editor, Maximizing Damages in Wrongful Death and Personal Injury Litigation (ATLA, 1985)
Nations & Kilpatrick, “Texas Workers’ Compensation” (Matthew Bender, 1990)
Contributing Author, “Texas Torts and Remedies” (Matthew Bender, 1988)
Contributing Author, “Construction Accidents” (Wiley Law Press, 1988)
Contributing Author, “The Anatomy of a Personal Injury Lawsuit” (ATLA, 3rd Edition)
Author of numerous journal articles, legal publications and CLE papers
Co-Founder: Insurance Corporation of America
Who’s Who in the World
Who’s Who in American Law
Who’s Who in America
Who’s Who in Finance and Industry
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