Over the past week, I've been on a jury at Middlesex County Courthouse. Here's the case and my experiences. [written around 1992]
In January 1986, Digital Equipment Corporation was consolidating some of its warehouse operations into a building in Northboro and creating a rapid response shipping center called DEC-24. Part of the project involved extending some storage racks in the warehouse and upgrading the fire protection sprinkler system among the racks.
DEC contracted with Markarian Plumbing of Worcester, which had done prior satisfactory work for DEC, to do the sprinkler work. Mr. Markarian saw that they were not going to meet the schedule with their own labor and subcontracted to All-Star Fire Protection of Pawtucket, as was permitted by DEC. After All-Star completed the majority of the job, it was noticed that the sprinklers were missing their deflectors, a necessary part for their proper operation; this is one of the esoteric things I got to learn about on this jury.
All-Star sent two guys, who hadn't previously worked on this job to DEC to install the missing deflectors. DEC was supposed to have moved the boxes off the racks where the guys were working, but the stuff hadn't been moved when the guys got there. The guys and their supervisor made a walk around so the work to be done could be explained. The supervisor from All-Star left. The guys went to DEC's warehouse supervisor and asked him to have the boxes moved. He replied that he didn't have time to move them.
One of the guys got on the phone back to All-Star, and was told to "Do the best you can." They went out and proceeded to work around the boxes and climb the racks without ladders. Working from separate ends of the racks, partway through the job, one of them, Mr. Shumaker, fell from a height of about twelve feet onto the concrete floor. There were no witnesses. He got up and went to the break room where his partner was and told his partner about it. They called All-Star and were told they would be met at the hospital. They went to the hospital. Noone at DEC was officially informed and no accident report was filled out. The warehouse supervisor heard about the incident the next day by overhearing conversation about it among his staff.
Shumaker, age 19 at the time, spent five days in the hospital. He had spinal X-rays taken which did not show any damage. Cartilage does not show up on X-rays, so later claims of disk damage could be neither substantiated nor denied based on these X-rays. He was prescribed bed-rest, anti-inflammation medicine, pain-killers and physical therapy. He continued to suffer pain in the back and left leg in spite of physical therapy.
During the period he was in physical therapy, Shumaker got himself into another accident. He rode his brother's all-terrain vehicle through some woods behind their house and hit a tree hard enough to put a significant dent in the vehicle. His estimate is that he was going about eight miles per hour. Since his condition didn't seem to change and since his treatment didn't change, Shumaker claims that this accident is irrelevant to his claim against DEC.
Based on subsequent CAT scans and myelograms (sp?) it was determined that Shumaker suffered some disk rupture (at L4-L5-S1--another esoteric lecture for the jury). In spite of the surgeon's opinion that Shumaker was "a poor candidate for surgery," Shumaker had surgery to alleviate the pressure on the nerves associated with the lower back and leg. The surgery seemed successful, but pain returned after a few weeks.
Shumaker was not up to returning to work for two years. He is unable to lift heavy weights (definition of heavy varied among the five doctors involved) and he is caused discomfort if he has to maintain a sitting or standing position for more than fifteen minutes at a time. (There was no visible evidence of this claim in the several multi-hour days in the courtroom--I shifted position much more often than he did; maybe he was under lawyer's orders to sit still.)
Shumaker did not report the second accident to any of the doctors who examined him as expert witnesses for the lawsuit. His expert witness doctor, under oath on the witness stand, agreed that the second accident was significant and that it would have effected his written testimony. However, the significance of that accident was never conclusively resolved. The doctor predicted that Shumaker would probably continue to experience pain and that subsequent surgery might be required. His professional opinion was that Shumaker was 25% disabled based on standard formulas for mobility and flexibility.
In addition to disclaiming negligence, DEC contends that Shumaker is not significantly disabled beyond his own control. He has managed a bowling alley for the last four years, making a salary similar to that he made working for All-Star. He bowls in leagues himself two nights a week. He weighs almost 300 pounds, and claims that his injury prevents him from exercising to lose weight. Several people in the medical records had suggested that he take up a swimming program, which he never did. He has never attempted school beyond high school.
This is what the jury had to work with. We were given photos of the racks, pipes and sprinkler heads. We had medical records and bills. We heard testimony from Shumaker's expert witness doctor, from Shumaker, from DEC's plant safety consultant, from Markarian, from DEC's facility engineer on the DEC-24 project, and from the warehouse supervisor, flown in by DEC from his retirement home in Florida. Markarian was originally a co-defendant and they settled for $40,000.
The jury was told to answer, with a twelve out of fourteen majority, the following questions (wording abbreviated):
1) Was Digital negligent? 2) If so, was DEC's negligence a substantial factor in the injury? 3) If so, was Shumaker negligent? 4) If so, was his negligence a substantial factor in the injury? 5) If so, what were the relative negligences? (DEC%+Shumaker%=100%) 6) What should DEC pay to compensate Shumaker?
The jury deliberated for eight hours over two days. Several got bored with question 1 and insisted we move on to later questions regardless of the dependencies. During this diversion, I worked with a couple of other jurors (my kinematics was distressingly rusty) to figure out Shumaker's velocity as he hit the cement to see how it compared with the tree crash. (It's been subsequently pointed out that the force was more relevant than the velocity, but we just looked at the velocities to get a ball-park idea.) Neither lawyer saw this as helping his case, so the question, unlike all sorts of silly medical ones, was unanswered in the courtroom. Since we were instructed to use the evidence (including testimony) as well as reasonable inferences (rules of calculus being a fine example), this was well within our purview. This just goes to show why more people ought to learn calculus and physics--figure out the answer yourself! I'll be reviewing one of my several textbooks soon.
As an exercise to answer question 1, we made a list of ways in which DEC might have been negligent. We asked if the existence of each of the ways seemed to be supported by the evidence, and if so, if it was indeed negligence. Judge McHugh, in his instructions prior to our deliberations, said that an accident in and of itself does not prove negligence. The list was winnowed down to the unmoved boxes and nobody having prevented the guys from working in the racks when the boxes left the working conditions subpar.
Though DEC was supposed to have moved the boxes, it was reasonable for them to not have it done in time for contractors who arrived at an unexpected time, so it was a stretch to call that negligence.
There was much discussion about the conversation between the guys and the warehouse supervisor. Did he say anything after, "I don't have time to move the boxes," like "wait a few minutes," or, "come back tomorrow," or, "go work around them," or nothing? It took a long time before the jury came to the conclusion that this was something we would never know. The plaintiff's attorney failed to ask this question of either the warehouse supervisor or the plaintiff, thereby failing to provide "the preponderence of evidence of negligence" necessary for the jury to find for the plaintiff. This was probably the deciding factor.
With all this uncertainty, the jury was uncomfortable with denying DEC was negligent, so it answered yes to question 1. But with the burden of proof on the plaintiff unfulfilled, question 2 was answered no. There was dissent from two of the jurors who felt strongly that the warehouse supervisor was responsible for keeping the guys off the racks no matter what. Most of us felt that we did not have enough evidence that the supervisor had under the circumstances a reasonable duty to stop them in any way that we knew he failed to do.
Aside from the failure of the plaintiff's lawyer to fulfill a critical obligation of the case, I was very impressed with the professionals in the courtroom. The doctor was as articulate as a lawyer. The lawyers seemed like skilled surgeons with words and ideas. The judge simultaneously followed the reasoning of the witnesses, the reasoning of the lawyers and the rules of testimony, instantaneously ruling on the lawyers' objections in what appeared to be a professional, consistent and even-handed way. The pomp and ceremony of the courtroom allowed a sense that though the case took six years to conclude, it had been given its full due. I noticed that it was very effective that the defendant's lawyer said good morning to each witness, which lent a sense of dignity and cool to the overall tone, even if he did have to correct himself after noon. This is a very civil system, even if it depends on the wandering minds of inarticulate jurors to render decisions. I just wish I had more confidence that everybody was represented by competent lawyers so that juries wouldn't be left deciding cases on guesses instead of evidence.
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