Patrick: They tried to claim that Tom bent down at a time when he knew the forklift was there and knew the forklift was moving and was in the blind spot and put himself in harm’s way.
Aaron: And one of the defenses to the case, which was very insulting to us, and the jury obviously didn’t buy was, “Well, it’s just a foot. Just a foot injury. And you know, it’s not that big of a deal.”
Tom: I was shocked. It was kinda…it surprised me. It definitely surprised me. It’s almost like they can say whatever they want to an extent.
Marcie: From the Chicagoland law firm of Salvi, Schostok & Pritchard, this is “Beating Goliath: A Plaintiff’s Pursuit of Justice.” I’m your host, Marcie Mangan. Case number one, part two, Tom Newhagen [SP]. In the first episode of Beating Goliath, you met Tom Newhagen, a veteran from Wisconsin who was horrifically injured when his foot was crushed by a forklift while working at McCormick Place Convention Center in Chicago. In a few short seconds, Tom’s life was changed forever. Incredibly, after multiple painful surgeries, doctors were able to save Tom’s foot from amputation. And through determination and hundreds of hours of physical therapy, he was able to walk again. But his accident should have never happened. After the team at Salvi, Schostok & Pritchard met Tom and began to work with him, they uncovered shocking evidence about crucial safety procedures that were disregarded by the company the forklift driver had been hired by.
They knew that this case wasn’t just about Tom’s injury and making sure he was compensated for a lifetime worth of pain and disability, it was about ensuring this company was held responsible for the shortcuts they had taken. This company, GES, did not want that to happen, as Attorney Patrick Salvi Jr. explains.
Patrick: And one of the things the defense approached us with is they said, “Hey, look, will you drop your punitive damages claim and try this case as an admitted liability case?” And what that would have meant is we put on no evidence of the conduct, we put on no evidence of prior conduct, or anything about training or certification, all that evidence gone. It’s only evidence about Tom’s injury and the jury decides what the compensation will be and no punitive damages. One of the reasons that may have been appetizing is it would have taken the case from a three-week trial to a one-week trial. But the problem with that is, again, it would’ve been sweeping everything under the rug, but the defense needed to be scrutinized by a jury too. We felt very strongly Tom did nothing wrong, and we were going to have the jury say that.
Marcie: It wasn’t just a case of proving that the accident was not Tom’s fault. For punitive damages to be awarded, Patrick and the team had to determine if GES had deliberately been negligent when it came to safety protocols.
Patrick: And so, you might think, “Well, does GES employ all these folks that are operating forklifts?” And the answer to that question is most of them, the answer is no.
Marcie: In fact, GES works with a specialist union at trade shows that supplies half the forklift operators.
Patrick: And what I came to learn is that the GES’s of the world, they want to hire their own people. They want to have a say in it. They don’t want to just turn it over to the union so that the union can say, “Here, take these forklift operators.” They want to have the opportunity, the contracting companies want to have the opportunity to hire their own forklift operators.
Marcie: What Patrick Salvi Jr. and the rest of the attorneys then discovered is that all the drivers supplied by the union went through a rigorous certification process. They simply were not allowed to operate a forklift unless this certification was up-to-date. Due to the skillset required to operate these huge machines, those certifications needed to be renewed every three years without fail.
Patrick: They hired them, they would show up, and they would never, not once be asked, “Can you please present your forklift certification card?” They wouldn’t ask. And so, what they would do is they would hire people that they thought were good for their business process and their business process had little to do with safety and a lot to do with productivity. Productivity trumps safety every day of the week. And it wasn’t fair to people like Tom because productivity means fast, and fast can mean unsafe. And that’s what happened here. So, Fred Nearings who’s the defendant forklift operator, Mr. Nearings, he had a long history of being able to operate a forklift. And what I came to learn was that, sure, he had operated a forklift for decades, but he had never gone through the certification process for the Versa 40/60 or any similar lift. And he didn’t have any documentation approve this, but at best, Mr. Nearings had certification from 1990 or the early ’90s. So 20 or more years prior to this incident, much more than the three years that’s required and on old forklifts, old technology.
Patrick A.: My name is Patrick A. Salvi Sr. I am the managing equity partner for Salvi, Schostok & Pritchard. I was shocked that this big company could have a system in place that did not preclude someone who did not have certification to operate a forklift, but they really didn’t have an explanation for why they didn’t independently make sure. So someone shows up to work, like the defendant operator in this case, they simply would say, “Well, let me see your certification card.” They never did that. And we discovered in a few other instances, sort of the same thing had happened at other places because this was a firm that put up these trade shows at places like McCormick Place all over the country. Dallas, Las Vegas, LA, you name it.
Patrick: When they had their daily safety meetings, as they called them, it sounded as though those were two to three-minute worthless meetings that otherwise could have been very worthwhile. It could have saved Tom’s foot. But instead, as we learned, they had no process because they didn’t care. And so, we were trying to prove that GES was willful and wanton by virtue of not having ensured that their forklift operators were trained and certified. And part of the jury’s consideration of that question is whether or not this was a pattern of behavior.
Marcie: Preparing for trial isn’t just about collecting evidence and becoming an expert on the subject matter. It’s also about making sure your witnesses and most importantly, your client are as prepared as possible for what might happen in court as Patrick Salvi Sr. explains.
Patrick A.: I prepare my witnesses very intensely in that I very meticulously abstract or depositions and review all of their documents that might be related to that witness. In my case, a lot of medical records, etc. And then I prepare their direct examination, what I anticipate to be the cross-examination. What areas we might want to come up in terms of redirect examination. Then I meet with them as frequently as I can and go through the direct examination and prepare them, you know, based on their deposition and so forth. You know, we talk about what the expectations are about what their testimony will be.
Patrick: By the time you go to trial, you have an idea certainly as to what the defense is going to be, but the exact manner in which they’re going to execute, it remains a mystery and you need to be prepared for it because anything can come up at any time. So, if some sort of line of attack comes up during the course of a witness’s examination and you’re not prepared for it, you can’t say, judge, “Can we take a two-day break? I’d like to go through the whole file and make sure that I have the right response with this witness.” It doesn’t work that way. You gotta be ready for anything. You gotta be on your toes. And so, you gotta try to predict that, you have to predict where the defense is gonna go and how they’re gonna go there.
Marcie: In the months, leading up to the trial, not only was Tom still enduring intense physical therapy sessions and working hard to recover from his surgeries, he was also working closely with the team to make sure he was as prepared and confident as possible before he walked into the courtroom.
Tom: Oh, I mean, I was nervous because obviously, I knew eventually I would have to testify. I was worried about what can get brought up or if I did something stupid that would either be misinterpreted into something that literally blows everything up in my face or something like that. Some of that stuff I was nervous about. But for the most part, I mean, again, like Pat, Jeff Krall [SP], all of them, I mean, they were all very personable and they all kept me… I mean, I wasn’t exactly all that nervous. I was nervous to an extent, but I asked them…I mean, pretty much I asked them anything. It was to the point of like, what should I wear? Should I be wearing a suit? Should I be wearing a tie? Should I be doing this or that? They explained to me what I should wear and how I should present myself and whatnot so that way I’m not like… Again, doing something stupid that’ll blow up in my face.
Patrick: Every witness is nervous. They’ve never done it before. It’s unnatural. I mean, how many times do you have to sit down in a chair, take an oath, you’ve got to your right a person in a big black robe, very intimidating, sitting a little higher than you are and issuing rulings and pretty much in control of the room? And then you’ve got, you know, 6, 8, 10, however many lawyers on both sides in the courtroom all dressed to the nines and suites. You know that they’re very highly educated. They probably know every in and out of the case. And then you’ve got 12 decision-makers sitting there in the box staring at you, assessing you, judging you. And so, it’s an intimidating situation. And so, what I always tell witnesses is I say, “Look, just talk to me, just talk to me like we’re having a conversation. Just focus on me. Don’t put any pressure on yourself. Put the pressure on me. If you’re going to say something in front of this jury, it’s because I asked you to say it. And if you give an answer and you left something out, well, then it’s my job to elicit it.”
Patrick: Meticulously researching the subject matter of your case, planning your cross-examinations, and preparing your witnesses is only part of what goes into getting ready for a trial. It’s not just about understanding what evidence you’re presenting, but considering how you will present the evidence that’s crucial in today’s courtroom.
Cesar: My name is Cesar Salinas. I’m the IT director for Salvi, Schostok & Pritchard. I handle the day-to-day infrastructure operations for security and communications for the firm. I also handle the trial technologies for the firms as well. So, technology has become so much a part of people’s lives. People are on their phone. People that are watching YouTube, people are on TikTok and they consume their media that way. And you know, before you go to the corner street and pick up a Sun-Time or “Chicago Tribune” and read a newspaper, now everything’s digital.
Marcie: One of the major components of a trial case that has gone digital is depositions. A deposition is a sworn out-of-court spoken testimony of a witness. Historically, they’re recorded and then turned into a written transcript that can then be used later in court. But for our cases here at Salvi, Schostok & Pritchard, we use video as Cesar explains.
Cesar: And the reason why we videotape our deposition is so that we can use it for potential impeachment purposes. We synchronize them with their transcripts so that the jurors can see and read what was actually said during their depositions. It’s more impactful. And you can see the jurors nod and agree with it because and it becomes more impactful because they can see the deposition, the person actually saying what they’re saying on video.
Marcie: In Tom’s case, perhaps the most important piece of evidence that was prepared was a video that was presented to the jury and detailed what a regular day in Tom’s life was like.
Cesar: Typically, a day-in-the-life video will show how the injury impacted the client on a day-to-day basis from the moment they wake up to their daily activities to how they get ready for bed, includes rehab, includes how they get ready for the day. Tom’s was no different. It showed him having to get his prosthesis on, get around throughout the day, go through his rehab. And it’s impactful to see how an injury like that can affect a person’s life. You know, people don’t really think much about their feet. It’s not something that comes in the forefront, but when you lose your foundation, when you lose your ability to walk and you’re dealing with pain, that’s stuff the jury can relate to.
Marcie: This IT work is painstaking. It can take hundreds of hours to prepare, but Cesar’s job isn’t over once the case begins. During the trial, he needs to present exactly the right piece of content at exactly the right time. It’s a lot of pressure, so much, in fact, that he refers to it as being in the hot seat.
Cesar: The reason why that’s called that is you want to be able to not have to interrupt the narrative that the attorney is trying to play out. You know, if things aren’t working, if things aren’t in the right order, or if things are taking too long to present, then that slows down what he’s trying to say. There’s a certain pace that each attorney has and you don’t want to interrupt it. You know, I’m a big football fan. And I liken the hot seat to the offensive line, in that you don’t hear about them that much. They’re not the glamorous position, but when the quarterback gets sacked or when the running back gets stopped, it’s because of the offensive line’s fault. We practice a lot, I practice a lot, but it’s always nerve-wracking whenever you try to present something and you’re hoping everything works.
Marcie: In a case like Tom’s, it’s not just video evidence that’s important. As Attorney Aaron Bader explains, the team also used the very latest technology to help explain the complex nature of Tom’s injury to the jury, as well as clarify the intricate medical procedures he had to undergo.
Aaron: We use 3D animations of injuries in which you can see the anatomy. It can show what happened during a surgery or during a procedure. We use radiological images, CT scans, MRIs. We put those up, we make them 3D. You can rotate the foot, show what happened, show where all the injuries are. In this case, we used a foot model to explain where the musculature was, where the fat was, where the procedures would be. So, you want to put as many things in front of the juror, both when you’re talking and with your experts to explain the injuries and show it to them. You know, talking is highly ineffective in terms of getting information across, showing it to them is much more effective. When talking and showing and having great experts and reinforcing it over and over again, that’s effective. You cannot bore people today. You couldn’t bore people 20 years ago, but really now, people have a very short attention span and they want to see the information, they want to see it done well. We better have some bells and whistles and show them some good graphics and good demonstratives.
Marcie: When a trial is ongoing, it’s not just the time in the courtroom that’s intense or stressful. It’s stressful all of the time.
Patrick: When you are up at 4:00 a.m. and going to bed at 11:000 or midnight, and you’re consistently changing, reviewing, amending, redrafting your examinations of witnesses, your closing argument, and you’re doing that on a daily basis and you’re facing motions from the defense, the defense pretty much every day brought motions against us, trying to say that our willful and wanton claims should be dismissed. Inevitably, you have to put all your other cases aside, you have to put your family obligations aside. And really it’s an all-consuming thing because you don’t want to look back on the trial and on your work on behalf of your client and feel like you could have worked harder. You could have done more.
Aaron: You go on adrenaline, you don’t take in as many calories as you’d like, by the end of the day, your suits seem like they’re fitting a little looser. You’re not getting enough quality of sleep because you’re waking up thinking about things.
Patrick A.: Whenever you go through a trial with somebody which is very intense, and this was a long one, over a month, it’s a very, very, very close relationship that develops between the lawyer and the client. And, you know, it’s a very close relationship because there’s so much at stake and you really bond, and we’re very good at kind of getting to know our clients really well.
Marcie: As the trial went on one tactic, the defense used was to downplay Tom’s awful injury.
Patrick A.: The argument was at the end of the day, it’s just his foot. He’s not paralyzed. He’s not brain-damaged. It’s a foot injury. And so that has limitation to its value. Our argument was that it’s not as simple as that, your feet, your foot, it represents kind of the foundation of your body. And this was a particularly gruesome injury and not only resulted in disability and certainly disfigurement, but also was a source of a lot of pain. So, when you have a guy that’s only 33 years old and at the time of trial he’s about 36, so you have another, maybe 45, 50 years of life expectancy, and you have to live with all these injuries and disabilities and pain, which probably are going to be more challenging as you get to be older in your fourth, fifth, sixth, seventh, decade of life. And so, as we remind the jury, they have to remember that their jury verdict is not just for today, but it’s for the next 10, 20, 30, 40, 50 years from now.
Aaron: And one of the defenses to the case, which was very insulting to us, and the jury obviously didn’t buy was, “Well, it’s just a foot. It’s just a foot injury. And you know, it’s not that big of a deal.” Well, your foot is really important, walking’s very important. Not being in pain every day is really important. You know, going to work every day and actually being able to do your job versus being the guy who just sit down all the time. And Tom was not the type who wanted to get pity from anybody else or be a slug. And he felt bad every time he had to take a break, when his soldiers were out doing work and he couldn’t do it because that’s just not how it was. So, there was a physical aspect, there was emotional, and it was really a profound injury.
Marcie: As well as trying to downplay Tom’s life-changing injury, the defense’s main argument was that Tom, not their uncertified driver was to blame for what happened.
Patrick: They tried to claim that Tom bent down at a time when he knew the forklift was there and knew the forklift was moving and was in the blind spot and put himself in harm’s way.
Marcie: But as Patrick Salvi Jr. explains, for a huge vehicle like the forklift involved, proper procedure is key. Any experienced certified operator would know that because of the way the vehicle’s constructed, there are multiple blind spots and you should never move let alone turn without the okay of a spotter. The person on the ground who is as much a part of the team as the driver. In this case, the uncertified driver, Fred Nearings didn’t follow that procedure and wait for his spotter, Chris Nash, to give him the all-clear.
Patrick: The spotter is there not just to clean stuff away from your path of travel, but also to, when you’re moving, guide you, tell pedestrians to stay away, warn pedestrians. Tell the operator that the coast is clear. Look in the blind spots to ensure that the coast is clear, but instead, Fred Nearings because he’s fast, he went at a time when it wasn’t safe to go. And then the tail swing swung out and ran over Tom’s leg. First knocked him down to the ground, hit him in the hip, he went down to his side, and then as the forklift continued to move ran right over the back of his foot. Fred Nearings was supposed to just sit put while Chris Nash was clearing debris from the path of travel of his forklift. And for really no good reason, none whatsoever, to save seconds, the forklift operator went. So, he risked Tom’s life and limb to save a few seconds. And it’s something that in all likelihood would not have happened had he been trained and certified because he either would have passed the class and understood that he couldn’t do that or perhaps somebody would have noticed that this is not somebody who can operate safely, and he wouldn’t have been certified, he wouldn’t have been on that forklift.
Marcie: But although the defense tried to convince the jury that Tom was to blame, as Patrick Salvi Sr. and Aaron Bader explain, there were key moments in this trial where those arguments just fell down.
Patrick A.: I would see some of the executives of the company just admitting and really having no plausible explanation for how this happened. In this case, policies and procedures weren’t followed like you should. If you’re operating a big forklift that might have a blind spot, you should only move it around if you have what’s called a spotter, that is somebody on the ground that’s helping the operator. They didn’t have that in this case, and not being certified. So, when the executives of the company and safety people, vice presidents, you know, all said, is this appropriate? You know, this conduct? And they’d kind of admit, no, not really. They don’t really have an explanation or they agree, you know, it’s not a good practice. And I think that was very, very compelling.
Aaron: There was an independent witness who worked for the forklift company and they thought…and when I say they, I mean the defense, and they thought he would help them on their case that Tom did something wrong and the testimony did not go well for them. He kind of basically said, “Tom didn’t do anything wrong. He criticized the other operator for what he was doing.” He wasn’t really taking sides. He was kind of independent guy, but helped us more than hurt us, which is not what the defense intended.
Marcie: It’s always a difficult experience for the plaintiff when they finally take the stand. The defense also has a job to do, and that can feel intimidating as it did for Tom.
Tom: Even during my testimony, the opposing counsel was basically like, kind of, almost it was like trying to throw me under the bus. They were basically putting words in my mouth, but it’s almost like they can say whatever they want to an extent.
Patrick: When the plaintiff takes the stand and says, “Here’s what happened and here are my injuries,” they’re bearing their soul to the jury. And there’s a lot of other evidence sure, but the plaintiff has borne their soul on what happened and on what their injuries are. And their credibility is being assessed and their life is being assessed and their future is being assessed. And the verdict is the statement on all of that. And so, you feel that with the client, and if you don’t feel that with the client, then maybe you shouldn’t be trying cases.
Patrick A.: I think Tom’s testimony was, you know, a highlight of the trials such [inaudible 00:23:45] so credible, great background, very honest, stand-up guy.
Marcie: Once all the witnesses have taken the stand and all the evidence has been presented, the closing arguments take place. The closing arguments are a chance for both the prosecution and the defense to reiterate their key arguments, sum up their case, reminders about key evidence, and encourage them towards a favorable verdict.
Patrick A.: One thing I always do when I close a case, closing argument is say at the end, thank them for their time and tell them that in this case, Tom and I will be in the courtroom when they return their verdict. And I think it’s just important for them to be reminded that, you know, they’re going to have to face him in open court with their verdict.
Marcie: After the closing arguments, there’s just one thing left to do. Wait.
Patrick: Waiting for a verdict is absolutely nerve-wracking. It’s one of the most painful experiences. It’s part of going to trial.
Aaron: So you get some food in you. You can’t talk about anything else other than trial. You have a few cocktails if you drink. And if you don’t, you just sit there and enjoy the company, and you kind of just wait. And I’ve waited for a few hours, I’ve waited for a few days. So you don’t know how long it’s going to be.
Tom: Because the deliberations went for like three or four [inaudible 00:25:07]. It’s somewhat made me nervous because I wasn’t sure what was either making it go longer.
Patrick A.: Yeah. It’s a very nerve-wracking period. It usually lasts many hours, sometimes several days even, you know, it’s just there’s a lot of anxiety.
Marcie: Finally, the call came in. The jury had reached a verdict.
Patrick: And then you know that in about 10 minutes, your life’s going to change forever. Then you and your team on the elevator ride down from the office and in the walk over to the courthouse and the elevator ride up to the courthouse and then sitting in the courtroom until the jury walks out is all about reading the tea leaves. And then when you get into the room and the jury walks in, it’s just an escalation of your heart rate and it just goes up and up and up. And then they hand the piece of paper to the judge for the judge to read. And you’re sitting there with your client right next to you who needs that win far more than you do as the lawyer.
Marcie: But sometimes, the verdict is not the end. Sometimes the verdict is just the beginning of yet another battle. In the next episode of “Beating Goliath: A Plaintiff’s Pursuit of Justice,” a judge’s surprising decision means that the fight isn’t over just yet.
Patrick A.: The very interesting thing about a trial is you never know quite what’s going to happen. So, there’s always going to be some surprises with some things you didn’t anticipate, but you never know with 100% certainty how it’s gonna all play out.
Aaron: Did the trial court err in some way, did the jury look at things the wrong way?
Patrick: And I was surprised. I was surprised. And we knew we had to appeal that aspect. And there was a whole nother battle ahead of us.
