The Ultimate Resolution

by Dave Sullivan

  "I understand your position," said the judge, "and you will have your opportunity to establish it with your evidence. Overruled. The witness may answer the question." Judge Hawthorne turned to Fred Slattery. "Do you remember the question?" He smiled.

  "Not really." Fred Slattery smiled back.

  "Mr. Kingsley?" the judge looked at Jake.

  Jake repeated his question.

  "No, I didn't find anything in the book like that," answered Slattery.

  "Thank you," said Jake, as he turned toward counsel table, "No further questions."

  "Mr. Whittemore?" asked Judge Hawthorne.

  "Nothing more...," Whittemore paused, "...at this time." He glared at the witness.

  Judge Hawthorne looked up at the clock over the courtroom door. "Ladies and Gentlemen, it is almost four-thirty. Rather than start another witness and interrupt the testimony after a short time, we will recess until tomorrow morning at 9:00 o'clock." He turned to specifically address the jury. "Understand," he smiled, "just because we are letting you go a little early today doesn't mean we will always do it. Some other day, we may keep you a little late, if necessary." Several jurors grinned back at the judge.

  "Now remember," he continued, "you are not to discuss the case with others or among yourselves until all the evidence is in and you retire to the jury room to deliberate. Thank you again for your service. We will be back tomorrow." He picked up his gavel with his right hand. "Court is adjourned until tomorrow morning at 9:00 a.m." He rapped the gavel on its clapper on the bench and rose to leave by the courtroom door exiting to his chambers. The jurors stood and filed out of the jury box toward the jury room to leave their note pads and get any belongings before going home for the evening.

  Jake and Charles took their trial notebooks and a legal pad each. They left the rest of their file in the courtroom. It was not necessary to take all of their file home each evening. Jake always felt that by this time the case was ready. It was prepared. Nothing more would be done by way of investigation or preparation except a brief review at the end of each day of what was planned for the following day. Of course that theory would eventually prove to be clearly wrong in this case.

  As they left the courtroom, Jake said, "We'll go to my old firm's office and talk for a bit."

  "Sounds good, Jake," answered the professor, "Okay with you Sarah?"

  "Yes, I have some questions about what went on today," she said, as they waited for the elevator. "A discussion would be good."

  They walked through the skyway system from the Government Center through downtown Minneapolis to the Norwest Center and rode the elevator to the offices of Stratton, McMasters & Hines. They met for an hour and a half, Jim Decker joining them for part of the time to hear the recap of the day's events.

  As he left the conference room, Decker said, "Sarah, you have Minneapolis' finest trial lawyer trying a case for you right now. When he's done, I hope you'll help me convince him he should come back here full time." He smiled at her and Professor Stanton and turned toward Jake with raised eyebrows.

  "Get outa here!" snapped Jake, grinning. "Let us get back to work."

  And they did. They reviewed the testimony planned for the next day, checking the outlines in their trial notebooks, showing them to Sarah so she would keep track of how they conducted the trial. They discussed Everett Whittemore's performance and its effect.

  "I don't think his approach today really makes a difference," said Jake, taking a sip from a Diet Coke can. "He's showing that the tractor was not being used according to the manual. We don't dispute that. The fact is that intelligent, responsible people were involved and they would not have taken this risk if they had known . . . if they had been properly warned. Also, the harder they hit the misuse theory, the more it hurts their claim that they didn't know of the danger or their theory that the T-350 was safe and not defective."

  "I think the jury can see through that fake sincerity and compassion. I don't think he's fooling them." said Charles.

  "I didn't like him," Sarah said.

  The next day, court was delayed a half hour while Judge Hawthorne handled a criminal sentencing. When the jurors were back in their seats, Jake addressed the Court.

  "Your Honor, Plaintiff calls Paul Schlicting to testify."

  A nervous young man walked hesitantly to the front of the courtroom and raised his right hand.

  After a very few introductory and background questions, Jake got right to the accident details. He intentionally kept this testimony short and to the point. Slattery had provided the full detail. Slattery's crew could confirm simply and concisely.

  Toward the end of Schlicting's direct examination, he became despondent and nearly broke down while describing what happened to Bobby Pallmeyer. After all, it was Schlicting who had been pulling the same log loads with the same tractor not long before Bobby was hurt. That fact and his seeing his friend hurt made the testimony difficult.

  "Bailiff, get the witness some water, please," said Judge Hawthorne. The bailiff disappeared behind the bench and returned shortly with a glass of water for Schlicting.

  Everett Whittemore wanted very badly to hammer more on his point about the manual with this witness, but the witness' emotional state was such that Whittemore was very careful not to antagonize the jury by being too rough. Instead he turned into the epitome of understanding and sympathy. As smooth as silk and as slippery as though he had just immersed himself in body oil, Everett C. Whittemore guided the witness through the issues of the manual, pointing out that the witness did not have a copy of the manual, his employers did not tell him about it or the use of a drawbar and that he just did what he was told. With Whittemore's compassionate assistance, the witness testified that the way he was told to use the tractor did not meet the written instructions in the manual.

  "Thank you, Mr. Schlicting, said Whittemore, "I am sorry to put you through this difficult experience." He smiled pleasantly at the witness box and turned to Jake. "No further questions."

  "Anything further, Mr. Kingsley?" asked the judge.

  "Nothing further, your Honor."

  "Very well, call your next witness."

  "Plaintiff calls Larry Mullin, your Honor."

  Mullin came forward to face the clerk, raising his right hand. He wore green and black horizontally striped pullover, tan chinos, and brown leather deck shoes. His tan leathery face showed he had been working outside for the summer.

  Jake took Mullin through the facts of the accident even more quickly than Schlicting. The story had already been told, and told again. Now it was important to show through the remaining witnesses who were there, not what happened, but that all the eye witnesses agreed on what happened and that none of them, crew members or observers realized at the time the danger and risk of what ultimately happened. After Mullin, Jake would call "Mac" McElroy and Bill Simpson, who, like Slattery were older, experienced and responsible men. Jake hoped their lack of appreciation of the risk and consequences would impress on the jury that no one knew and that with men like Slattery, McElroy and Simpson around, maybe Cherokee should have warned them. Men like that would have understood and appreciated a proper warning if it had existed and been where they would see it.

  Whittemore's cross-examination of Mullin was as smooth, oily and full of apparent compassion as was his cross of Schlicting, making the same salient points about what Whittemore would repeatedly characterize as "misuse" of his client's state-of-the-art equipment.

  The afternoon witnesses were McElroy and Simpson. First was the direct examination of Angus McElroy of the United States Park Service. McElroy and Bill Simpson were being called for their eyewitness accounts of the accident. Jake felt that both men were mature, responsible and experienced and would so impress the jury. They were no strangers to the use of equipment. Just the fact that they had watched the tractor operation and said and thought nothing about the hazard that was actually there said a great deal about alleged misuse and about the need to give better warnings.r />
  Judge Hawthorne closed proceedings for the day after Bill Simpson's testimony was finished. The next witness for Plaintiff would be Walter Stirling, the agricultural engineer Jake would be calling as an expert witness. Stirling and Richard Norton, their other product expert, had arrived in Minneapolis that afternoon. He and Charles were to meet them at the Stratton, McMasters office after court. Jim Decker would be keeping the experts comfortable until they got there.

  "Gentlemen, thank you for coming," said Jake as he met the two expert witnesses in the conference room of Stratton, McMasters & Hines. Jake consulted the expert witness outlines in his trial notebook. "Let's go through your testimony as if you were in trial," he said. "We’ll shorten up the introduction and your qualifications, but otherwise we'll go through it the way it will go in court, all right?"

  "Sounds good to me," said the engineer, Walter D. Stirling.

  "It sounds better than good to me," said Dr. Richard V. Norton. "Usually the lawyers who use me as an expert witness just meet me in the hall of the courthouse a few minutes before I testify. And, I might add, their preparation usually suffers as a result."

  Jake conducted a mock direct examination of each expert. He told them both that he wanted only the opinions with which they were very comfortable.

  "An expert who is reaching to please the lawyer who hired him is too easily upset on cross examination," he said. "I want you so comfortable and convinced of your opinions that you cannot be budged."

  Jim Decker came back into the room carrying several sheets of paper. "Fax for you from St. Louis, Jake. I think you’ll want to see this. I know I want to stay and watch. Here." He handed the fax to Jake.

  Jake looked at the document. He glanced at the signature on the last page. It was an in-house report by an engineer named Robert England, who was a member of Cherokee Tractor & Implement Company's Research & Development section. The report discussed rollover problems of the Cherokee T-350 farm tractor. England had written the report in 1964!

  Jake began to read each page, handing each to Charles when he was done. Charles read and passed the pages along to the two experts. The four men read in silence for several minutes. When they were done they looked at each other in silence for at least a full minute, each thinking to himself about the impact of this document. Finally, Jim Decker spoke.

  "It's smokin' ain't it?"

  "It's certainly something," said Charles, "but can we use it?"

  "Why not?" asked Decker.

  "Yes, why not," said Walter Sterling. "It looks pretty important to me."

  "And damaging," added Richard Norton.

  "Well, there certainly could be some evidentiary problems," said Jake.

  They decided to hold the report for Ellington's cross examination after their damages witness. Stirling and Norton planned to stay to hear Cherokee's reaction to the report.

  CHAPTER TWENTY-FIVE

  The next morning, Wednesday, Jake began the testimony with his first expert witness.

  "Plaintiff calls Dr. Walter D. Stirling, your Honor."

  Stirling rose from his seat in the audience and walked forward. He was of medium height and stockily built. He wore a green summer weight suit, blue shirt and a blue and green striped necktie. He wore cordovan loafers with tassels. Stirling was bald on the top of his head with short cropped hair on the sides. He adjusted his rimless eyeglasses as he seated himself in the witness box.

  "State your full name please," began Jake.

  "Walter D. Stirling."

  "What is your occupation, sir?"

  "I’m an agricultural engineer," said the witness.

  Jake went through the brief introductory questions and guided the engineer through his qualifications to testify as an expert witness in this case. To highlight the differences between their presentation in this case and those others Charles Stanton had been worried about, he asked the witness questions about the difference between agricultural engineering and other types of engineering such as automotive engineering and went into the witness' bachelor's masters' and Ph.D. degrees in that field. To set the stage for showing prior knowledge of tractor rollover hazards on the part of the industry and this defendant manufacturer, Jake asked the witness to describe the American Society of Agricultural Engineers (ASAE) and its journal and other publications.

  Once through the preliminaries, Jake got down to the critical part of the direct examination.

  "Dr. Stirling, have you reviewed the facts of this incident on Otter Island up in the Apostles on Lake Superior in which Robert Pallmeyer was injured?"

  "I have," answered the witness.

  "What did you review?"

  "Well," he said looking at his notes in the file he brought with him to the witness stand, "I read a U.S. Coast Guard accident report, I read the depositions of the witnesses who were there, I examined the tractor itself, and," he said, looking up from his notes, "I went to the scene on Otter Island."

  "Based on your examination of the tractor, the scene where Mr. Pallmeyer was injured, and the records you have reviewed, do you have an opinion as to whether the Cherokee T-350 tractor in this case was defective in its design?"

  "Objection, your Honor," said Everett Whittemore. "Calls for an opinion on the ultimate issue."

  "Overruled," answered Judge Hawthorne. "The direct bearing of an opinion on the ultimate issue is no longer an objection in this state under Rule 704. The witness may answer."

  "Do you have an opinion?" repeated Jake.

  "I do."

  "And what is that opinion?"

  Walter Stirling turned to directly face the jury. "In my opinion, the Cherokee T-350 is deficient in its design in a way that directly caused this accident and the injuries to this young man. The tractor was not designed or fitted with any system to prevent front-to-rear rollover or protect the operator from it."

  "What, in your opinion, should have been done?" asked Jake.

  The design of the tractor should have included such a system, what has been called a safety arch and is commonly known today as a Roll Over Protection System or ROPS. It is simply a rollbar over the operator and a seat belt to restrain the operator in the event of an upset."

  "Do you have an opinion whether the T-350 as designed without such an arch or ROPS was unreasonably hazardous to the operator?"

  "I do."

  "What is that opinion?"

  "Absolutely," said Stirling. "Without a ROPS, the tractor was extremely dangerous."

  "Are you familiar with the term 'state of the art'?" asked Jake.

  "Yes."

  "Please explain it for the jury."

  The witness explained the state of the art of the industry and how industry literature, technical papers, etc. formed the knowledge of the industry at any given point in time. Jake introduced the articles in the ASAE Journal written by E. G. McKibben.

  'Showing you what has been marked for identification as Plaintiff's Exhibit 12, Dr. Stirling," said Jake, "do you recognize this?

  "Yes," said Stirling, "those are the classic articles by McKibben. They are part of the industry knowledge or 'state of the art.'"

  "When were they written?"

  Stirling glanced at the exhibits. 1927," he replied.

  "Were they then part of the industry knowledge and state of the art in 1927?" asked Jake, holding the McKibben articles in the air in front of him.

  "That's correct," said Stirling.

  "Plaintiff offers Exhibit 12, your Honor."

  "Any objection, defense counsel?"

  Ed Hamilton stood to address the Court. "Thank you, your Honor. Defendant maintains the objections noted and argued in our motions in limine. May we have those as continuing objections?"

  "You may. And the ruling on the motions in limine is not changed at this time as to this exhibit. The objection is overruled. Plaintiff's 12 is received."

  Jake showed him Plaintiff's Exhibit 13, the National Safety Council Data Sheet. "What is that?" he asked.

  Stirling read the paper.
"This is National Safety Council Data Sheet No. 1-377-54.

  "Please read this paragraph," said Jake pointing to the upper right column of the article.

  Stirling read to the jury:

  "The conventional heavy duty industrial wheel-tractor has two pairs of large driving wheels. It is not unusual, however, to find the two-wheel-drive agricultural tractor being used in small logging operations, usually in connection with portable sawmills where the timber is small and the log haul distance is short. The two-wheel-drive tractor has a serious inherent hazard of turning over backwards. If the drive wheels become stuck in mud or sand, continued applications of power causes the drive shaft pinion to rotate on the differential ring gear, thus winding the entire tractor over the rear wheels. This can occur so suddenly that the operator has no chance to escape. Backward overturning can also occur on the two-wheel tractor if the load is hitched above the center of the rear axle. The load acts on a high hitch-point as a lever, raising the front end."

  When the witness finished reading, Jake asked, "What is the date of that data sheet?"

  "1954," answered Stirling.

  "And," began Jake, "was that National Safety Council Data Sheet part of the industry knowledge in 1954?"

  "It was."

  "And was it part of the 'state of the art' of the industry in 1954?"

  "Absolutely," confirmed Stirling.

  "Offer Exhibit 13."

  "Received."

  "Permission to publish these exhibits to the jury, your Honor?"

  "You may," said Judge Hawthorne.

  Jake handed the exhibits to the first juror.

  As the courtroom waited in silence while each juror looked at the articles and the data sheet and passed them on to the next juror, Jake walked to the plaintiff's counsel table where Charles Stanton handed him the next exhibit. They exchanged glances. Charles turned to Sarah Pallmeyer and smiled.

  Jake had the next exhibit marked and handed it to the witness. "Are you familiar with that?" he asked.

  "I am. This is an article written in 1962 by some agricultural engineers at the University of California-Davis." said Stirling, looking at the article.