Trial Magazine – Important Civil Trials of the Millennium

“California attorneys Mark Robinson and Arthur Hews headed a team of trial lawyers and invested a considerable sum to prepare and present the case against Ford’s famously intransigent defense.

The jury’s verdict—more than $3 million in compensatory damages and $125 million in punitives—was stunning…Juries do not design cars or issue safety standards. But they can draw a line against disregard for safety that companies ignore at their peril. The California jury sent that message to automakers.”

In its March 2000 issue of TRIAL magazine‚ the Association of Trial Lawyers of America published an article listing 10 cases considered to be milestones in the development of the civil justice system over the last millennium. One of these was Grimshaw v. Ford Motor Company‚ the Ford Pinto case tried by Mark P. Robinson Jr. and Arthur Hews.

TRIAL — March‚ 2002

It’s been a long road from trial by combat to trial by jury.

The millennium’s end (a year early‚ as it turned out) kicked some new life into a number of venerable industries‚ Spam sold like hotcakes‚ COBOL programmers were rousted out of retirement‚ and everybody felt compelled to compile a Top 10 (or 100 or 1‚000) list. More influential people‚ greatest music‚ best snack foods—the list of lists seems endless. Here is one more.

The “greatest civil trials of the millennium” is a list that cannot be written. We have carefully preserved our courts’ appellate opinions; we have indexed‚ keynoted‚ and databased them to a fare-thee-well. But the trials that are the foundation for this great body of law vanish like champagne bubbles.

In countless civil cases—the ATLA Law Reporter has summarized thousands of them—trial lawyers battled against daunting odds and won a full measure of justice for their clients. It is a tribute to the dedication and competence of these lawyers that their achievements are not famous: This is what we expect of trial lawyers.

Nevertheless‚ there are some civil trials that carry particular significance for trial lawyers. Here is a selection of milestones in the development of the civil justice system and—most especially—the right to trial by jury.

Between the 11th and 16th centuries‚ the pickings are slim indeed. Juries in any form we might recognize were unknown. When the Norman Conquest was still news in the British Isles‚ many inhabitants handles disputes by blood feud. The plaintiff and family declared a vendetta against the defendant’s family‚ and the two groups would inflict mayhem on each other for generations—long after the first wrong had been forgotten.

For speedier outcomes‚ it was hard to match “hue and cry.” A witness would shout to all in the vicinity that the accused had committed a crime. The villagers would join together‚ hunt down the defendant‚ and kill him or her on the spot.

Not every case was on the medieval rocket docket. Litigation over the property of Thomas‚ fourth earl of Berkeley‚ commenced shortly after his death in 1416. The 11th earl obtained a decree granting him possession of the disputed lands in 1609. No record of billable hours has survived.

The Normans introduced trial by combat. The parties would have at each other‚ usually with axes‚ and the last bloody litigant left standing was the winner. The well-to-do were able to hire mercenaries to do their fighting. In the view of some trial lawyers‚ the profession has not much changed.

The enlightened English also relied on trial by ordeal‚ in which God was called upon to protect the righteous party. Methods preferred by litigants included application of hot irons and being thrust into boiling water. A judicious payment to the torturer could ensure that the irons or the water were not too hot.

Finally‚ someone invented the jury. First‚ there were a few basic ground rules to iron out.

1. Dr. Bonham’s Case (1610)

Common law rights and remedies. Poor Thomas Bonham was probably the only physician who wanted so badly to be hauled into court as a defendant that he sued for the privilege. Bonham had a degree from Cambridge and a practice in London. What he did not have was a license from the Royal Society of Medicine. The society charged that Bonham was “inexpert in the art of medicine‚” tried him‚ and threw him into prison. He responded by filing suit for false imprisonment.

Sir Edward Coke‚ presiding judge‚ ruled that the suit could go forward and‚ in the process‚ managed to lay down a handful of fundamental precepts. One was the principle of neutral adjudication: One cannot be judge of one’s own cause.

Coke also enunciated the principle of judicial review: Even an act of Parliament is of no effect if it conflicts with basic precepts of the common law. Finally‚ he established the principle that for every right there is a remedy.

Coke’s ideas had less impact in England than in the American colonies‚ where his Institutes was the law text most widely read by Thomas Jefferson‚ John Adams‚ and their contemporaries. Two hundred years later‚ judicial review continues to protect the rights of injured persons from tort “reform” legislation that attempts to undermine common law remedies.

In several famous criminal trials‚ such as Bushell’s Case following the trial of William Penn in England and the trial of John Peter Zenger in America‚ heroic jurors ensured that the right to a jury in criminal cases would be preserved. As for the right in civil actions‚ one case clearly stands out.

2. Wilkes v. Wood (1763)

Groundwork for the Seventh Amendment. John Wilkes was one of the most popular English politicians of his time—on both sides of the Atlantic Ocean. A member of William Pitt’s opposition party in Parliament‚ he became a hero to the colonists for his defense of their rights. (Hence‚ Wilkes-Barre‚ Pennsylvania‚ and Wilkesboro‚ Kentucky.)

Wilkes also kept up a scathing criticism of the government through 44 issues of his pamphlet‚ the North Briton. In number 45‚ however‚ he managed to accuse the king himself of lying. That won him an arrest‚ seizure of his pamphlets‚ and a stint in the Tower of London.

But his popularity skyrocketed. Crowds stopped coaches of the wealthy‚ held their occupants upside down‚ and painted “45” on the soles of their boots. (Any coins that dropped were undoubtedly treated as soft money.) The royal nephews would annoy grumpy King George III by running into his office and yelling “45.” The Americans sent campaign contributions.

Wilkes brought suit against the official who had ordered the illegal general warrant for his arrest and seizure. He won a verdict that today would be worth about $1 million. A crowd greeted the jurors as they exited from the courthouse‚ berating them for not awarding more. The court‚ through Lord Camden‚ acknowledged that the verdict was far more than was needed to compensate Wilkes. But the amount of damages is a matter for the jury‚ not the court‚ he stated. So

Lord Camden invented the new category of exemplary damages to uphold the verdict.

When the constitutional convention delegates emerged from their secret sessions in Philadelphia‚ the proposed constitution lacked any guarantee of the right to jury trial in civil cases. The anti-Federalists focused on that deficiency and aroused enough popular opposition to scuttle the plan entirely.

The Wilkes case was cited during the ratification debates as proof of the need for an explicit guarantee. The Constitution won ratification only after its supporters agreed to add a Bill of Rights‚ including the right to trial by jury.

3. Georgia v. Brailsford (1794)

Best pattern jury instruction. In the earliest days of the Republic‚ before Article III kicked in and Congress established inferior courts‚ the U.S. Supreme Court was the only federal court of the United States. The Court presided over the occasional federal jury trial. Here is the jury instruction given by Chief Justice John Jay in Georgia v. Brailsford: It may not be amiss‚ here‚ gentlemen‚ to remind you of the good old rule‚ that on questions of fact‚ it is the province of the jury‚ on questions of law‚ it is the province of the court to decide. But…you have nevertheless a right to take upon yourselves to judge of both‚ and to determine the law as well as the fact in controversy.

It was not until 1899 that the Supreme Court held the law was not the province of the jury. The don’t write instructions like that anymore.

4. Gulla v. Triangle Shirtwaist Co. (1914)

A failure of the trial bar. If you have any desire to speculate on the state of civil justice in the early 20th century‚ consider this nominee for the hall of shame.

In 1911‚ a fire raged at the Triangle Shirtwaist Factory in New York. The blaze started in a pile of oily rags and quickly swept through the upper floors where immigrant women labored over sewing machines in crowded workrooms. The owners had chained the exit doors shut to prevent the women from leaving during the day‚ and the building’s firehoses did not work. One hundred forty-six women were burned to death‚ crushed to death‚ or killed when the jumped from the windows.

Bowing to pressure from an outraged public‚ the state brought criminal charges against the two owners. The defendants retained Max Steuer‚ one of the most talented and most expensive trial lawyers of the day. Largely through his masterful cross-examinations‚ Steuer won an acquittal for his clients.

The families of some women then brought civil wrongful death suits. But there was no Max Steuer for the plaintiffs. Even though the evidence from the criminal case was available to plaintiffs’ counsel‚ the plaintiffs’ entire case was completed in a single day. The jury returned a defense verdict. There could be no clearer demonstration that the jury right rings hollow without a competent plaintiff bar.

5. Brown v. Board of Education (1954)

A trial lawyer in the struggle for civil rights. No list of important cases of the 20th century can overlook Brown v. Board of Education.

Thurgood Marshall’s skills and accomplishments as an appellate advocate and Supreme Court justice are well known. But he was also a great trial lawyer. As head of the NAACP Legal Defense Fund‚ he made his way into countless southern courthouses to wrest some measure of justice for African American defendants from an often racist legal system.

Marshall’s strong suit was cross-examining smug white officers and exposing their concocted stories without arousing the ire of white jurors against his client. Often “victory” meant a life sentence for an accused who had been facing a death penalty. It was Marshall the great trial lawyer who won Brown v. Board of Education.

Brown was actually four consolidated cases tried or supervised by Marshall. His plan was to get past the question of whether specific black schools were actually equal to white facilities and put segregation itself on trial.

In the South Carolina case‚ for example‚ the state made a surprise announcement of an ambitious program to improve black schools. The three-judge panel was about to end the hearing when Marshall insisted on presenting is witnesses‚ including sociologist Kenneth Clark‚ who had conducted his famous doll experiment‚ to substantiate the adverse psychological impact of segregation on black children. The court was not impressed‚ and the defense won handily without even presenting rebuttal evidence.

Louisa Holt‚ who held a Harvard doctorate in psychology‚ took the stand the Kansas suit‚ tried by Jack Greenberg. The trial had progressed faster than expected‚ and she had not thoroughly prepared. However‚ she stated her opinion with firm conviction: The fact that separation by race is sanctioned by the law‚ she said‚ is the most damaging aspect of segregation on black children‚ reinforcing a perception of inferiority. Again‚ the defense offered no rebuttal‚ and again the court ruled against the plaintiffs. The Kansas judge issued a finding‚ based on the uncontested evidence‚ that paraphrased Holt’s testimony.

In the Supreme Court‚ Justice Felix Frankfurter and‚ later‚ Chief Justice Earl Warren were determined to overrule Plessy v. Ferguson. What they did not have was a convincing rationale. If a state provided black and white schools that were truly equal in all respects‚ how could students claim violation of equal protection? The Court had ordered additional briefing on the intent of the drafters of the Fourteenth Amendment regarding education‚ but a mountain of research yielded inconclusive results.

Facing John W. Davis‚ widely regarded as one of the greatest Supreme Court advocates of the century‚ trial lawyer Marshall was able to hand the justices exactly what they needed. He opened his oral argument with what trial lawyers recognize as a high act: undisputed evidence at trial from social science experts that segregation was itself harmful to black children.

On May 17‚ 1954‚ the Court handed down its landmark decision in a short opinion. The centerpiece was a quotation from the findings by the Kansas court‚ echoing the words of Louisa Holt: “Segregation with the sanction of the law‚ therefore‚ has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially] integrated school system.”

6. Harkness v. Trans World Airlines (1958)

Litigation groups take off. Following World War II‚ greater air travel resulted in more aviation accident litigation. Plaintiff lawyers approached these suits with a perfectly respectable theory: “res ipsa loquitur — planes don’t fall from the sky without some negligence. But the airlines were cleaning plaintiffs’ clocks. Juries were not swayed by this evidentiary shortcut‚ not after the airline’s presentation of the ultramodern equipment and extensive training given to their pilots. In the early 1950’s‚ 22 of 24 aviation lawsuits tried under this theory resulted in defense verdicts.

The problem‚ thought fledgling aviation lawyer Stuart Speiser‚ was that the lawyers representing crash victims and their families were trying to go it alone. Few firms could afford the technical expertise required to build a good case‚ they did not share information‚ and they were often unaware of legal developments in related cases around the country. One of the worst airline disasters in history gave Speiser the opportunity to make a dramatic change.

On June 30‚ 1956‚ two airliners crashed over the Grand Canyon‚ killing 128 people. At Speiser’s invitation‚ 25 lawyers representing victims and families—including luminaries Melvin Belli‚ a former ATLA president (1950-1951); Craig Spangenberg; and Moe Levine—met in Miami at the convention of the National Association of Claimants’ Compensation Attorneys (as ATLA was then named). The group agreed to coordinate the work of case preparation‚ dividing tasks and sharing information. Each lawyer paid into an expense fund. Speiser maintained a document library and circulated a newsletter to keep the group informed of the latest developments.

The results were dramatic. The first case was tried by Belli and Speiser. In November 1958‚ a Los Angeles jury returned a verdict against the two airlines‚ TWA and United. Plaintiffs won most of the Grant Canyon cases after that.

A young lawyer in Speiser’s firm‚ Paul Reingold‚ saw the potential value of such cooperative efforts in other mass tort situations. He adapted the idea for use in the MER/29 drug litigation with tremendous success. From these roots sprouted hundreds of litigation groups‚ loosely affiliated with ATLA‚ that made great strides toward leveling the playing field between powerful defendants and injured victims.

7. Gottsdanker v. Cutter Laboratories (1958)

Strict products liability. Dr. Jonas Salk became a national hero in 1954 by ending the nightmarish polio epidemic. About a year later‚ in tragic irony‚ over 200 children contracted polio from the vaccine itself. The 1958 suit brought by two of these children against Cutter Laboratories is notable because one former and two future ATLA presidents were at the counsel table for the plaintiffs: Melvin Belli‚ Lou Ashe (president 1959-1960)‚ and Richard Gerry (president 1981-1982). Belli‚ of course‚ was in a class by himself‚ the Billy Graham of the Adequate Award and demonstrative evidence. Gerry‚ fresh out of law school‚ handled most of the discovery‚ trying to find out why the children contracted polio from a vaccine that should have contained only dead polio virus.

In a stack of documents that the trial judge had ordered Cutter to produce during trial‚ Gerry found the smoking gun. “They hadn’t followed Salk’s formula. They were cutting costs and cutting corners. As a result‚ six lots of vaccine got through with live virus and caused poliomyelitis in 204 people.”

Belli persuaded the court to apply strict liability‚ a doctrine that California Supreme Court Chief Justice Roger Traynor had proposed for dangerous products in his concurring opinion in Escola v. Coca-Cola Bottling Co.‚ a case in which Belli had argued for the plaintiffs.5 The jury returned verdicts totaling $147‚000—an exceptional figure at that time. The court of appeal affirmed‚ adopting strict products liability in broad terms. The case was overshadowed‚ however‚ by the California Supreme Court’s later expression of that doctrine in Greenman v. Yuba Power Products‚ Inc.

8. Borel v. Fiberboard Corp. (1971)

White death on trial. East Texas trial lawyer Ward Stephenson lost his first asbestos case in 1966. Who knew the stuff caused lung disease? Not us‚ claimed the suppliers‚ not until Dr. Irving Selikoff proved it in 1965. Stephenson had a firm belief that the industry was lying. He had another client‚ 57-year-old Clarence Borel‚ an asbestos insulation installer who was dying of cancer. What he didn’t have was proof.

Stephenson papered the country with letters to medical associations‚ libraries‚ scientific publications‚ and other organizations. Slowly‚ he assembled a long list of scientific and medical articles concerning the hazards of asbestos‚ including 86 articles that had appeared in medical journals before 1938.

In early 1971‚ Stephenson himself was diagnosed with bone cancer. Nevertheless‚ following surgery‚ he conducted a four-day trial against 11 asbestos manufacturers‚ demolishing their claims of innocent ignorance. The jury returned a verdict for Borel.

The defendants appealed to the fifth Circuit‚ hiring famed torts scholar W. Page Keeton‚ who dismissed Stephenson’s application of strict liability to asbestos as “preposterous.” Stephenson was dying in a hospital bed‚ awaiting some word from the Fifth Circuit that his crusade was worthwhile. He died on September 7‚ 1973‚ three days before the appellate court announced its decision. However‚ someone at the federal courthouse‚ aware that Stephenson was on his deathbed‚ had telephoned him with the news that the judgment was affirmed.

The jury’ verdict in Borel spelled the end of the industry’s hope of getting off scot-free and focused the attention of the civil justice system on providing a remedy for the massive harm the industry had inflicted over the decades.

9. Grimshaw v. Ford Motor Co. (1978)

The jury as the star. The Ford Pinto litigation can be counted as one of the great successes of the civil jury. Its story is cinematic. Open on a family car on the highway. As it is struck from behind‚ the car and its occupants are engulfed in flames. Similar tragedies occur around the country.

Flashback to worried Ford engineers. The company had high hopes for its new small car. But in test after test‚ rear impact had the same ominous outcome: gasoline pouring from the ruptured fuel tank onto the pavement.

Some engineers then suggested design changes that would have saved lives at a cost of between $4 and $8 per car. Changes were nixed by higher-ups‚ determined to rush to market with a car under 2‚000 pounds for under $2‚000. Meanwhile‚ Henry Ford and Lee Iacocca met with President Nixon to put the brakes on the National Highway Traffic Safety Administration’s fuel system integrity standard.

When Lily Gray’s nearly new 1972 Pinto was struck on a California freeway‚ she died in the post-collision fire and her 13-year-old passenger‚ Richard Grimshaw‚ was severely burned. California attorneys Mark Robinson and Arthur Hews headed a team of trial lawyers and invested a considerable sum to prepare and present the case against Ford’s famously intransigent defense.

The jury’s verdict—more than $3 million in compensatory damages and $125 million in punitives—was stunning‚ though the punitive award was remitted to $3.5 million. Tort opponents railed against the verdict‚ but the decision struck a chord. A prizewinning expose by journalist Mark Dowie appeared in Mother Jones magazine. The television show 60 Minutes followed up. Soon Ford recalled the Pinto.

Juries do not design cars or issue safety standards. But they can draw a line against disregard for safety that companies ignore at their peril. The California jury sent that message to automakers. Along the auto industry’s long journey from blind belief that safety doesn’t sell to television ads featuring Iacocca bragging about his air bags‚ this jury’s verdict stands as a milestone.

10. Liebeck v. McDonald’s Restaurants (1994)

The late Tom Lambert‚ who wrote ATLA’s famed “Tom on Torts” column in the Law Reporter for many years‚ was able to compress a large idea into a parable the size of a declarative sentence. A lie can travel twice around the world‚ he often said‚ before the truth can get its pants on in the morning. The McDonald’s coffee case is a cautionary reminder of the vulnerability of the jury system to attack by those whom Americans frequently hold accountable when they sit as jurors.

Stella Liebeck was not flying down the freeway juggling her morning coffee. She was a passenger in her grandson’s car‚ which he had parked after buying a 49-cent cup of coffee at a McDonald’s drive-through. Liebeck had taken the lid off her coffee so she could add creamer. Nor were her injuries trivial. The 79-year-old Liebeck suffered third-degree and deep-tissue burns that required multiple debridements and skin grafts. Indeed‚ at one point her family feared she would not survive the difficult procedures. The McDonald’s coffee case could have been a wrongful death action.

With due respect to plaintiff’s counsel‚ S. Reed Morgan‚ he was facing an adversary who seemed determined to push downfield towards the wrong goalpost. McDonald’s admitted that its coffee was so hot that it was not fit for human consumption as sold. One company official stated that customers were expected to remove the lid and add creamer or an ice cube to bring the coffee to drinkable temperature.

McDonald’s head of safety and quality control testified that he had been surprised by the severity of the burns McDonald’s coffee could inflict when he testified in a similar lawsuit four years earlier. Although his department had talked about preventing such accidents‚ nothing was done except to collect the accident reports in a file. The company had collected over 700 complaints of burn injuries over 10 years. Another official explained that no safety measures were taken because 700 injuries were “insignificant” for a corporation that sold millions of cups of coffee.

That dismissive attitude‚ as much as anything‚ prompted the jury to award $2.7 million in punitive damages‚ though the judge reduced it to $480‚000.

The tort “reformers” gloomed onto the story‚ despite a gag order imposed by the judge‚ and the media was flooded with wildly distorted stories. Wholesome McDonald’s had been victimized by a gullible jury. Demonstrators appeared at the Capitol with signs reading‚ “She spilled it on herself.” Drive-time radio ads urged listeners to demand that their legislators stop frivolous lawsuits. By the time Leno and Letterman had their say‚ the media campaign had reduced the Albuquerque jury to a national punch line.

Many ordinary Americans—who‚ after all are the 1 million or so jurors who serve on panels each year—did not get the real joke: The corporate public relations campaign was ridiculing and belittling Americans themselves.

Is this what we’ve come to? From the jury trial as a right to be demanded from a king or a constitution to mere grist for spin doctors and opportunistic politicians? The founding generation foresaw this and so entrusted the right to the Constitution rather than Congress. And the Constitution is entrusted‚ in large part‚ to the Supreme Court of the United States.

So it is encouraging that the Court has recently come to the defense of the Seventh Amendment in Feltner v. Columbia Pictures Television‚ Inc. and Hetzel v. Prince William County. In Feltner‚ Justice Clarence Thomas held for a unanimous Court that the right to trial by jury means the right to have the jury determine both liability and the amount of damages. Near the head of the line of cases he cited was Wilkes v. Wood—featuring our old friend John Wilkes.

This term‚ the Court considers two cases urging it to reign in federal courts of appeals who not only overturn jury verdicts on the basis of insufficient evidence‚ but enter judgment as a matter of law for the defendant rather than order a new trial.

Here’s hoping that the future will also be able to boast of great civil jury trials.