ATV Injury Case Proposed Costs and Expense Budget

     Re:  ATV Injury Case 
             Proposed Costs and Expense Budget

Dear Trial Attorney:

Thank you for your interest in having our firm assist in evaluating your ATV case. The following is an outline of my thoughts regarding some of the cases we have handled and how we may be of assistance to you.

Our trial victories against Honda include Barrera (jury verdict of $10,000,000.00) and Sanchez cases (verdict of $30,000,000.00). Additionally, we were involved in a significant settlement in the Smalley case and, we settled the Scotty Seals and Gaona cases. We also settled the Wendell v. Yamaha case for a significant figure, the Black v. Kawasaki for the most that Kawasaki has settled since becoming self-insured, and we settled Rohrer v. Yamaha for $3.2 million in Graves County, Kentucky. Most recently, we settled with Honda the Hagy case in Oklahoma City, Oklahoma.

I.     LESSONS FROM BARRERA AND SANCHEZ

Our trial team in Barrera and Sanchez accomplished what no other trial firm has done in the United States. Over a two-year period (1995-1997), we had jury verdicts for over $45 million dollars in ATV litigation and that doesn’t include a $1.4 million dollar settlement on a Honda four-wheeler in the Pullman case or the significant settlement in Smalley. No other trial firm in the country has obtained these results. Two of the major reasons for this were organization and support. In the 1995 Barrera ATV case, my firm assigned an associate and a paralegal to work for two years prior to the trial on the case and on very little else. At trial, we had three attorneys and one full-time paralegal and our local counsel had two assistants helping us on a daily basis for over a month. One week before trial, we had another paralegal that worked only on file organization and stayed with us up until the time of trial. Our total expenses in the case approached $350,000.00. We made this financial commitment because we wanted to ensure that every possible effort was made to help our client. For example each expert and lay witness had their own individual three-ring binder together with all the documentary exhibits for the witness, prepared direct and cross-examination, and a special section with summaries of prior depositions and trial testimony.

During the 1997 Sanchez ATV trial, we made over fifty (50) blow-ups and had five attorneys in the courtroom at various times to work on the presentation. We also had a support staff in Brownsville, Texas including my own paralegal, and the co-counsel’s firm of four paralegals and a full-time translator for our clients. A local moving company assisted in getting the documents, exhibits, and boxes in and out of court each day. Every pleading, exhibit, deposition, and witness statement had been indexed and filed so that we could go immediately to whatever document we needed, pull it up, and have it available for trial use. This commitment resulted in the largest verdict ever returned against Honda in an ATV case of thirty million ($30,000,000.00) dollars. The verdict was taken away from us by the judge but was partially reinstated by the Court of Appeals in Corpus Christi, Texas. We should know in the next 60 days if the Texas Supreme Court will grant a Petition for Review. Having tried four jury ATV cases since 1995, I know that one can only achieve appropriate compensation for the clients with nothing less than an all-out effort.

As you know in our business, you are only as good as your last victory, but we have all the documents and exhibits that it would take a new firm to the field of ATV litigation years to acquire. Some of these are included for your review. This was the point in discussing the prior cases. You should look at 18 Product Liability Law Reporter 110, July 1999 for two of our recent cases. But just as important is the ability to hold down expenses and push the case to resolution since we have been there before. We also have an excellent witness, Dr. Terry Winkler, who is very accurate and knowledgeable about special rehabilitation and life care plans. On another paraplegia case, he prepared a life-care plan of over five million ($5,000,000.00) dollars. It was accurate, complete, and we so believe it would have been accepted by the Court as valid evidence. Many attorneys do not realize how expensive future medical and life care costs can be.

II.     THE 3-WHEELER TRIAL BUDGET

If you have tried ATV cases before, you know that such success comes with a price. Unless you believe that you can settle your case for $1 to $2 million, given the serious and permanent damages to your client, a substantial amount will have to be spent to get your case ready for trial. A ballpark figure would be around $300,000.00 at a minimum, that is, depending on the support personnel you have available. The following is a rough estimate we have used in the past to help us anticipate expenses, starting with expert witnesses:

A.      Anne Graham     $5,000.00

1. CPSC issues; she is a former Commissioner and was at the time of the CPSC investigation in 1984.

2. She voted against the Consent Decree in 1987 because no recall was required and has very strong feelings against ATVs.

3. Anne usually agrees to a retainer in the amount of $1,000.00.

4. The estimate is for one deposition and one day of trial testimony but does not include travel expenses. This is the fee that she usually charges me because I have used her in several cases.

5. She can be reached in Rehoboth Beach, Delaware at (302) 227-7877.

B.     Dr. Richard McLay     $12,000.00

1. Re-creation of accident.

2. Simulation; he will prepare a video of how dangerous the vehicle is; he can also testify that he has seen no evidence or documents that show Honda engaged in computer modeling or simulation which has been done since the early 1960’s to determine vehicle safety.

3. Design defects; a basic concept that is essential to the presentation of the case.

4. Dr. McLay is an excellent witness because of his experience with the Nevada four-wheeler case that recently settled and his ability to explain the basic design of the three-wheeler. He has also prepared several simulations that can be used.

5. McLay is a luxury item and is not necessary if there is a good local accident engineer who has had experience with ATV litigation or accident reconstruction.

6. The estimate does not include deposition or court time and does not include travel expenses.

7. Dr. McLay can be reached in Iowa City, Iowa at (800) 338-6008.

C.      Local Engineer     $6,000.00

1. Accident reconstruction analysis.

2. Design defects.

3. This person usually has a local connection such as teaching at a local college or university. You might want to use someone who you have used in another ATV case or in another accident reconstruction situation.

D.      Jeff Compton, C.P.A.     $5,000.00

1. Defendant’s net worth.

2. Punitive damages (already has documents and posters we can use to talk about net worth and explain what kind of punitive award would be necessary to get the ATV manufacturer’s attention.

3. He usually asks for a $500.00 check to be sent to him or a similar economist needs to be retained. Your economic expert needs his designation to include the issue of punitive damages and to be able to articulate what level of money damages would be necessary to get the Defendant’s attention or cause them to change their policies.

4. Compton can be reached in Houston, Texas at (713) 659-5080.

E.      Randy Nelson     $7,000.00

1. Randy is a rider whose experience and testimony qualifies him to opine on the dynamics of driving and what machine modifications need to be done to the vehicle to make it safer. He has also probably driven every ATV that has ever been on the market.

2. As a rider, Randy can explain rider dynamics and why it is that anyone who is not an expert has difficulty steering an ATV.

F.     Dr. Bob Wright     $10,000.00

1. Reconstruction and design engineer who has testified in numerous ATV cases and can talk about alternative design issues.

2. The difficult variable with using Wright or McLay is determining whether testing is necessary of the vehicle at the site or under certain similar conditions. These accident reconstructions or simulations can be very expensive.

3. He will testify that the major problem with the design is the lack of lateral stability and the failure to use a differential in certain ATVs. He produced a videotape in the Hanners case showing vehicle instability, and with and without a differential that might be helpful in your case.

4. He along with the other experts need to do a site visit before testifying and that may increase certain costs.

5. Wright is familiar with the data of similar accidents and shows that there is more to the case than your client’s alleged poor driving skills.

6. Wright can be reached in Ohio at (614) 587-1999; in the past he has wanted a $5,000.00 retainer but that can be negotiated.

G.     Stuart Statler     $15,000.00

1. Having served on the CPSC and being involved in its investigation of the ATV industry, Statler has a good working knowledge of the Consent Decree and the Congressional hearings and how the ATV industry participated in these events.

2. Statler is expensive when compared to Graham but he is very good if the court will allow this evidence. As early as possible some rulings should be sought from the court so you will know if the evidence on substantially similar accidents, the Consent Decree, and the various government studies will come into evidence.

3. The $15,000.00 figure is for a one-day deposition and one day of trial and does not include travel expenses. Statler can be reached in the Washington, D.C. area at (703) 524-8990. I have used Statler in several of my cases.

H.     Ed Karnes     $4,000.00

1. Karnes is a human factors and warnings expert who is excellent with the three wheelers since the warnings on the vehicle and the owner’s manual were so poor. He has been qualified in lots of cases and has a good jury presence.

2. Karnes will set a maximum and costs can be lowered if his deposition is done by phone. Since the Defendants have deposed him numerous times, a telephone deposition can usually be arranged.

3. Dr. Karnes can be reached in Colorado at (303) 697-9650.

I.      Bill Kitzes     $8,000.00

1. Kitzes is an attorney who also worked at the CPSC and then became an expert on ATVs and Corporate Safety Issues. He can testify about the Defendant’s failure to have a safety program and how it acted willfully and intentionally to violate acceptable corporate safety policies.

2. With several of the Plaintiff’s witnesses, the Defendant will try to have them disqualified and that battle will have to be fought with Kitzes since some of his testimony is very "soft” and is not supported by hard data -- a Daubert issue.

3. Kitzes charges $1,750.00 per day with a two-day minimum plus travel expenses. Total expense should be well below the $8,000.00 figure. He can be reached in Florida at (561) 241-1900.

J.      Mike Burleson     $12,000.00

1. Burleson is another reconstruction engineer that should be considered because he has a good record.   I used Burleson in both the McLemore case in Florida and in the Scotty Seals case.

2. Burleson can be reached in Texas at (903) 566-1980.

K.      Damage Witnesses - Life Care Plan     $10,000.00

1. This is a pretty random figure since I do not know the status of the medical record and what ongoing medical expenses there are and what would be needed for a life care plan, and other medical needs and rehabilitation.

2. You might want to consider, where appropriate, a local economist who would cover loss of wages and costs associated with the injury. There also may be a local or attending doctor who could cover some of the damage issues and talk about current medical problems and needs.

3. It would benefit your client to see someone like Dr. Terry Winkler. A very realistic medical assessment should be made by Dr. Winkler or someone like him.

L.     Additional Expenses for Courtroom Presentation:

1. TV-VCR Rental – 4 week trial             $2,000.00

2. Blow-ups of photos, large chronology chart, medical expenses summary chart, etc. use of software program and refinements to our database of Honda documents.         $10,000.00 

3. Focus Group                                      Free if we get graduate students.

4. Community Survey                            Same

5. Model                                                  Same

6. Travel and Living expenses during trial                                                                                            (this figure would not include support personnel costs)     $10,000.00

7. Daily Copy                                         $10,000.00

8. Shipping and Copying Expenses      $10,000.00

TOTAL FOR TRIAL – ESTIMATED BUDGET:                    $150,000 to $200,000.00

Please keep in mind that these are rough estimates based on four jury trials in Texas, Florida and New York. Every case is different and will have opportunities for savings and hidden incidental expenses that cannot be totally anticipated. The final amount can run from $200,000 to $400,000. For instance, there are other expenses for trial that will have to be made. I have also enclosed another budget showing the expense for contract labor. Some arrangement is necessary to show the videos in court with a VCR and large TV screens. We developed in our Texas cases the use of document organizer and presentation software program. The Summation software is an excellent way to organize the file. This allows us to have all of the necessary Honda documents on a disk. We then have immediate access to the documents and display them instantaneously so that whatever document we need can be seen by the jury. With these expenses in mind, there are other steps that can be taken to help prepare for trial.

III.     PREPARATION FOR THE PRESENTATION OF EVIDENCE

These following suggestions may be of use and then on the other hand, please disregard, if you consider them unnecessary for your case.

A.     Local Focus Group

(1)     In the Barrera case, we performed two focus groups mainly from the Hispanic population in Houston, to help our case.  One focus group was over a Saturday morning for four hours and the other was a focus group  at our office for approximately two hours.  If this can be arranged in your area, it would be a real asset to know what the local population thinks about your case and Honda's defenses.  With a mock trial or as a focus group on specific issues, to hear laypersons discuss merits and demerits of a case is an excellent way to prepare and derive insight from how the case should be presented.

We have found that, 12-20 people would be the right number for this. We also could contact a local college, speech class, law enforcement school or court reporting school for additional persons to attend and possibly use of a classroom.

(2)     We did a focus group in the Gaona case in Bartow, Florida. The cost was $15,000.00, but we know of other focus group providers that charge as little as $5,000.00. We have also done them on our own to save money.

B.     Community Survey

We have discussed in some of our other cases having a graduate psychology student at a local college or university perform a community survey as part of a class project. The survey would be aimed at the local attitude toward tort reform, punitive damages, lawsuit abuse or other issues in your case. If someone would be interested in doing this as a graduate project, we can get it done for almost nothing. We can work with this person regarding the topics that should be included.

C.     Model of Site

We have discussed contacting the architectural department of a local college or university to have a student build a model of the site. This would be helpful to show how the plowing occurred that caused the injury or how the terrain affect the ability to control the vehicle. We used a model in the Barrera case and found it very helpful.

D.     Ruling on Admissibility of Documents

Prior to trial, we strongly suggest seeking a hearing before the court on the admissibility of certain documents including the CPSC investigation, Congressional documents, National Association of Attorneys General documents, Consent Decree, and other documents that Honda a will try to keep out. This has been a battleground with Honda in the past and I am sure Honda will try to keep all these documents out of evidence. Local rules and individual ruling should be researched on how to best proceed.

E.     Jury Questionnaire

Please let me know if a copy of the jury questionnaire we have used in other cases would be useful. At the same time we present our pretrial motions, we also present the questionnaire to the court for approval.

F.     Motion in Limine

We have numerous motions in limine on file and, as with the other documents you might need, would be happy to make them available. Since we have a case in Oklahoma, most of the issues have already been briefed.

IV.     ATTORNEY ARRANGEMENT

As you can tell from this lengthy letter, I usually focus on what needs to be done for trial and whether all the suggestions can be accomplished within a reasonable period. Based on the four jury trials in which I have been either lead or co-counsel, I realize the tremendous amount of work that needs to be done. I also realize that a minimum of $200,000.00 needs to be spent in the next six months and probably another $100,000.00 on top of that to get the case properly prepared. Having tried four ATV jury cases and settled numerous others, we have accumulated a number of exhibits, witness binders and demonstrative aids that can be used in other cases, including yours. We also have a database on similar accidents and other ATV documents.

With all the factors you have to consider with this type of litigation, you may want to re-assess what you want to do with this file in light of my suggestions. If you encounter the usual ATV resistance to a fair settlement, I would like for you to consider letting us prepare, and try the case from this point on until time of trial.

We would, of course, want you to serve as local counsel and participate in the selection of the jury, all meetings with the court, and handle all contacts such as local press and issues concerning your client’s family. With the right trial team and favorable judicial rulings, I see no reason that we can’t substantially increase the Sanchez $30 million verdict. If the court allows the evidence of the Defendant’s knowledge that the ATV design was killing thousands of people, any jury, anywhere, even in conservative Houston should be outraged by this behavior. Due to the expense and work a “usual” referral arrangement could not be done. Some arrangement would be necessary due to the catastrophic damages involved.

V.     DEFENSE TRIAL STRATEGY

Defense trial tactics are well known, and they will try to show that your client was at fault; that he didn’t follow the warnings, drove too fast, and didn’t pay attention to the road or the specific warnings about wearing a helmet. Thus, the Defendant’s position is that the vehicle did not cause the accident, and the basic design of the ATV is very safe.

This last point is paramount to how the Defendant proceeds because any deviation from the design starts the house of cards falling. The Defendant has to defend the vehicle configuration, the balloon tires, the high center of gravity, lack of mechanical shock absorbers and springs, wheelbase and track width. The Defendant’s witnesses will state that the rider-active nature of the vehicle is part of its charm. In reality, even an experienced driver can lose control without warning. Finally, The Defense’s experts will testify that the novice rider can learn all these unique features and the vehicle does not demand too much of the driver’s ability to control, e.g., anyone can learn to drive it. How much experience did your client have on ATVs prior to the injury?

The Defendant will fight to keep out all of our relevant evidence of the public CPSC and Congressional hearings and conclusions, the Consent Decree and claims and accident data. All of this came in at the Barrera trial and it was all kept out at the Sanchez case. A favorable result will depend on how fair your trial judge will be because it certainly helps us if it all comes into evidence.

It is a plus that the Defendant has a very standard method of trying lawsuits. I am not sure if there is an appreciation for how Honda will spare no expense in defending its design and vehicle. It is my opinion that Honda is not interested in settling because it truly believes it did nothing wrong and the Japanese are not capable of admitting they made a mistake. Thus, the case will have to be presented to a jury if a fair resolution is to be obtained.

VI.     CONCLUSIONS

I have enclosed an ATV Questionnaire to be answered by your client. I have been rather bold in my assessment of the status of your case, especially since I know nothing about how you want to handle the case or the facts. I do know what our trial team can do and how much money we can make for you if we can proceed like we did in the other cases. This may be the only ATV case you have and you may not have plans for getting into the recreational vehicle litigation business on any larger scale. Thus, there is no need to re-invent the wheel when we have the experience and ability to help you properly represent the client.

If any of these suggestions have been offensive in any way, I apologize for them, but they have been suggested out of my enthusiasm and dedication for representing victims of the worse consumer product ever produced for the American market. Recent CPSC statistics show ATVs are responsible for over one million injuries and five thousand deaths.

I also look forward to having the Questionnaire answered if at all possible. Also, is the vehicle available for inspection? I have also enclosed my article on law firms forming strategic alliances, which sets forth what I hope to accomplish with your case. Regardless of whether we work together on this case or another, we are available to discuss any aspect of your ATV case that you desire. If you would like to come and look over our ATV collection, you would be most welcome. With the best personal regards.

Sincerely,

Robert S. Bennett

RSB/krc