Justice denied: not all clients who deserve to win do so. Here, three lawyers share stories of cases that could not succeed because the doors of justice were locked.

The worst thing imaginable

WILLIAM S. BAILEY

In the early 1980s, after a semiretired senior partner in my first firm lost his 55-year-old son to a sudden, massive heart attack, he told me, "You never want to bury your children, no matter how old they are." Even though my own children were in preschool at the time, I understood exactly what he meant. Then, as now, the worst thing I can imagine for any parent at any age is the loss of a child.

Anecdotal evidence and scientific research both demonstrate the severe mental suffering of parents who lose adult children. When popular entertainer Dean Martin's beloved son Dino died in a jet crash, those closest to Martin observed that he seemed to lose the will to live. Clinical research has also shown profound disturbances in the day-to-day functioning of grieving parents.

In 2002, I began a trial in which my passion as a father joined with my passion for justice as a trial lawyer: I represented George and Kathryn Philippides in a wrongful death case over the loss of their intelligent, handsome, and charismatic 22-year-old son Yianni.

I had taken the case knowing that my state's law appeared to foreclose legal action by nondependent parents for the death of an adult child. But the love and sacrifices George and Kathryn had made for Yianni and their two older children, as well as the kindness and respect they showed to all people, justified giving this case everything I had. Beyond this, I felt a special admiration for Yianni, whose short life revealed great potential.

Yianni excelled in college, majoring in international relations and philosophy. After graduation, he decided to take a little time off before embarking on his career, supporting himself as a bicycle messenger in Seattle. While on his last delivery of the day, he was run down on his bicycle in a marked downtown crosswalk by a car driven by Robert Bernard, a traveling salesman.

Yianni was rushed to the regional trauma center, unconscious, with a severe head injury. His sister called their parents, on vacation in Alaska, and they rushed to their son's bedside. Yianni never regained consciousness. After several brain surgeries, he lingered on life support for a week, then died.

Although Bernard remained in Seatle for several days before returning home to Michigan, he never came by the hospital while Yianni clung to life, nor did he apologize to the family after Yianni died. His only penalty: a $250 traffic ticket for failure to yield the fight-of-way.

George and Kathryn never would have filed a lawsuit if Bernard had simply apologized, expressed regret, or asked for forgiveness. But he had said nothing, going on with his life with seemingly few consequences.

Most states close the courthouse door to parents like George and Kathryn, even though they have suffered an unimaginable loss due to another's fault. Society has long abandoned its view of children as mere chattel, but, sadly, in some cases the law continues to treat them as little more than property interests. This flies in the face of what most families actually experience: The relationship between most parents and their children grows closer as the children mature. While romantic attachments and social friendships may be transient, the parent-child bond is remarkably durable, critical to emotional stability, good mental health, and the enjoyment of life.

Preventing parents from bringing civil actions when adult children are killed also creates a public safety problem through lack of accountability. Even though improved diet and health care have increased our life expectancy, young people die at epidemic levels because of negligent motorists: In 1992, for instance, more than 26,000 young Americans between the ages of 15 and 24 died from accidents, homicide, and suicide combined, with motor vehicle accidents accounting for more than 10,000 of those deaths. (1) Yet prosecutors are often reluctant to file charges against motorists because of the relative difficulty of proving criminal negligence. When the criminal justice system cannot or does not accomplish the goal of deterrence, the civil justice system must fill the void, creating meaningful consequences for people like Robert Bernard and the company who employed him.

Bernard's prior and subsequent poor driving record shows just how a persistent lack of accountability in traffic matters can lead to greater harm. He had multiple speeding tickets in the years before running over Yianni Philippides, for which he merely paid a fine. Although Bernard was in violation of his employer's safe driving policy, the company did nothing to enforce it.

If Bernard's driving privileges had been suspended, as mandated by company policy, this accident might never have happened, and Yianni might still be alive.

Although the Seattle police detective investigating Yianni's death concluded that Bernard should be charged with negligent homicide because of his speed and inattention, the defendant paid only a traffic fine when the prosecutor declined to press that charge. Even after killing a human being, Bernard didn't get the message to slow down: Six months later he got yet another speeding ticket. Clearly, public safety required more from both the criminal justice system and Bernard's company.

There is also a very real economic consequence for this justice denied. Most care for aging parents in America is provided by adult children, not nursing homes. (2) The death of an adult child removes a potential caretaker for old and infirm parents, and this burden may shift to taxpayers if no action is permitted against the wrongdoer who caused the loss.

As expected, the defense in this case brought a motion for summary judgment as a matter of law, seeking dismissal of the parents' claims for loss of their son's companionship. A courageous trial judge denied the motion, ruling that a legislative amendment to Washington's Wrongful Death Act had added the loss of emotional support of a deceased adult child as a basis for a cause of action.

An interlocutory appeal by the defense was denied, and the case proceeded to trial. The jury found Bernard entirely at fault for Yianni's death and awarded George and Kathryn each $900,000 for the loss of their son's companionship and the diminished value of Yianni's estate.

But on appeal, the Washington Supreme Court, by a 7-2 majority, reversed, writing,

   While we may agree that the value parents
   place on children in our society is no longer
   associated with the child's ability to provide
   income to the parents, the legislature has
   defined who can sue for the wrongful death
   and injury of a child and we cannot alter the
   legislative direction. (3)

The appellate court disagreed with the trial court's reading of the statute, saying, "The language of the statute and the legislative history does not support the conclusion that the requirement of financial dependency on adult children was addressed or changed by the 1998 amendments." (4)

The court further refused to recognize the independent common law right to recover for the wrongful death of an adult child, even though the supreme courts of several other states had done so: "The courts of this state have long and repeatedly held, causes of action for wrongful death are strictly a matter of legislative grace and are not recognized in the common law." (5)

Never has a bad outcome been more difficult for me to accept. I believe that any enlightened concept of justice must include the relief of human suffering in a proportional way. Those who have suffered the greatest harm, such as the parents of adult children who have been wrongfully killed, should have commensurate amounts of relief to address the gravity of the loss.

At Yianni's sister's wedding recently, George spoke to the congregation of family and friends. As he began to talk about the difficulty of Yianni's absence on this important day, this proud, stoic man choked with emotion. The pain of losing a child at any age never goes away.

For the rest of my life, I will never forget Yianni, his family, or the failure of our legal system to address this great loss. It haunts me still.

Notes

(1.) U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 94 (1995) (Table 127, Deaths by Age and Leading Causes of Death in 1992), available at www.census.gov/prod/1/gen/95statab/vitlstat.pdf (last visited Nov. 30, 2005).

(2.) Family Caregiver Alliance, "Selected Caregiver Statistics," available at www.caregiver.org/ caregiver/jsp/content_node.jsp?nodeid=439 (last visited Nov. 30, 2005).

(3.) Philippides v. Bernard, 88 P.3d 939 (Wash. 2004).

(4.) Id. at 945.

(5.) Id. at 946 (citing Tait v. Wahl, 987 P.2d 127, 130 (Wash. Ct. App. 1999)).

WILLIAM S. BAILEY is a partner at Fury Bailey in Seattle.

An unfair dilemma

MICHAEL ROBERTS AND GREGORY S. CUSIMANO

Fred Smith (not his real name) worked hard to support his family. He had one of the more unpleasant, noisy, grimy jobs necessary for our communities to function: He was a trash collector.

One day, long before dawn, Fred was on the job in his small city, riding on a step mounted on the outside of a municipal garbage truck. Disregarding safer designs that afforded more protection, the truck manufacturer had opted for a step on the truck's outside rear corner, which exposed those riding on it to collisions and other hazards.

That spring morning, Fred suffered horrible injuries when the garbage truck backed over him; because of the configuration of the step on the truck, the driver did not see Fred's position at the rear of the truck. Fred battled for his life in the hospital for about a month before dying.

Meager workers' comp death benefits were available under state law, and the city's workers' comp insurance carrier paid about $200,000 for Fred's hospital and medical bills.

His family retained our law firm to investigate and pursue wrongful death products liability claims relating to the design of the garbage truck. The family hoped that the case might prevent others from being injured or killed.

But an illogical aspect of Alabama law soon became apparent: No compensatory damages in wrongful death claims may be awarded, including those for economic loss. Only punitive damages maybe recovered, as a deterrent to future wrongful conduct. Also, a few years earlier, the state legislature had amended the law to permit a workers' comp insurer to obtain subrogation reimbursement for medical expenses. In Fred's case, this meant the city's insurance carrier must be reimbursed for the medical expense out of the products liability case, even though the family could recover nothing for medical expenses as damages in that case.

Further, as representatives of the family at trial, we would not be allowed to tell the jury about the medical expenses incurred for Fred's care, or that only the workers' comp insurance company would be reimbursed from a damages award. Instead, the jury would simply hear that the family could recover only punitive damages as a deterrent to future wrongful conduct by the defendant. The jury would be told explicitly that Fred's family could not be compensated for any financial or pecuniary loss, and medical charges could not be introduced into evidence.

The law seemed to require that the family reimburse the insurance carrier, even though they could not recover any medical expenses and were forbidden from even mentioning those expenses during trial.

Although we challenged the constitutionality of this statute, the appellate court rejected our arguments in a decision that was upheld by our state supreme court. The case and the subrogation issues were ultimately resolved through a settlement that had to accommodate the insurance carrier's reimbursement, but this strange law put Fred's family--and other plaintiffs in similar situations--in an unjust position.

MICHAEL ROBERTS and GREGORY S. CUSIMANO are partners at Cusimano, Keener, Roberts, Kimberley & Miles in Gadsden, Alabama.

Punishment without justice

JOSEPH G. WALSH

While driving home one evening, my client, Luis Rosario, failed at first to see a woman hurrying across the street from left to right. When he finally saw her, he tried to steer to the left, but another car was approaching. Instead, he slammed on the brakes. Afraid he may have hit someone, Luis panicked and drove off.

His car had indeed struck the woman, and although an ambulance arrived at the accident scene almost immediately, she died.

Luis soon realized that he should not have left the scene, and he called a friend to drive him to the police station. They arrived there 20 minutes after the accident. Luis cooperated completely, answering every question and submitting to all tests requested. Although he told the police that he drank beer several hours before the accident, no officer noted any indications of alcohol consumption, and Luis was not asked to submit to field sobriety tests. The police charged him with evading responsibility and allowed him to leave.

About two weeks later, the police notified Luis that a blood test came up positive for alcohol, with a blood alcohol concentration level of 0.13, above the legal limit of 0.10.

A few months later, Luis was charged and arraigned on two counts of manslaughter. One count claimed that the accident was caused by his intoxication; the second claimed that it was caused by his reckless driving.

I was surprised by the blood-test results, and a month after the arraignment, I asked to have the blood sample retested. The state's crime lab responded that the sample had been destroyed, without notice to anyone, as was "the practice of the lab." Our motion to dismiss on this issue was denied. The judge felt that any prejudice in not being able to test the sample ourselves could be protected through cross-examination of the state's witness.

Before trial, the state claimed that Luis had been traveling at 59 mph in a 25-mph zone. I knew this was wrong from a review of the state's calculation with my own expert and tried to explain why before trial, but I was unable to convince the prosecutor. The judge offered Luis a sentence of four years if he pleaded guilty to the charge of manslaughter, but Luis knew that he was not guilty of that charge and had not been intoxicated. More than 100 pages of police reports backed his story, as none mentioned anything about possible intoxication that night. He also knew he had not been driving recklessly.

The jury agreed. At trial, the state's investigator acknowledged that he had made a mathematical error in calculating Luis's speed and that the fastest he could show that Luis was driving was perhaps 37 mph. Luis was found not guilty of manslaughter. He was convicted only of evading responsibility for having initially left the scene for 20 minutes.

But the judge then raised Luis's bond to $500,000, cash only. Although he had been out on a $5,000 bond for more than a year and made every court appearance, Luis was dragged away in handcuffs. His family and I stood there shocked and helpless.

A pre-sentence investigation report recommended that Luis be sentenced to a "moderate" period of incarceration and probation. The sentencing judge found him to be "truly remorseful" and "overall, a good person," with a loving wife, two young children, a close extended family, and a job he had held for more than 10 years.

Luis submitted over 50 letters of recommendation. He had no prior convictions. Nonetheless, the judge sentenced him to the maximum penalty of 10 years, with the last 2 years suspended after he served 8 years in jail.

In protesting this sentence before a review commission of the superior court, we cited cases of defendants convicted of both manslaughter and driving while intoxicated, some with prior convictions, where the defendants did not turn themselves in. In each case, the defendant had been given less jail time than Luis. The commission refused to modify Luis's sentence. Their decision meant that Luis was serving the longest sentence of anyone charged with similar crimes in the entire state.

After two failed appeals, I wrote to the governor and Luis's legislators. Someone in the governor's office told me the governor did not have the power to change the sentence but encouraged me to keep fighting.

We then appealed to the parole board to meet with Luis. Because he had been convicted only of a nonviolent offense, he was eligible for parole after serving half his time. This meant that Luis could be released in July 2005.

Everything seemed to be set in his favor. His prison supervisors and counselors spoke highly of his conduct, attitude, and work performance. He had a family and job awaiting him. Surely, we felt, after meeting Luis, the board members would release him to parole.

But Luis was not allowed to meet with the board. A new law states that a prisoner convicted of an offense for which he or she is eligible for parole after serving half the sentence no longer has a right to personally appear before the board.

Instead, the board said it would hold an administrative hearing and decide the issue "on the papers." This allows prisoners to file papers explaining why they should be released but not to testify or even appear on their own behalf. Their attorneys may not appear, either. Victims, though, are allowed to appear and testify, without cross-examination. Prisoners are not even told whether anyone else testifies or files a statement before the board.

Luis's request for parole was granted last spring, but he will not be released until August 2007. The board, without ever meeting Luis or hearing in person from me, had decided that he should serve another two years in jail. The board has turned down several requests for an explanation, continuing to deny Luis justice.

JOSEPH G. WALSH is a principal in the Cohen and Wolf law firm in Danbury, Connecticut.