My most memorable client.

Losing may not mean losing

Recently, a young attorney associated me on a products liability action against Nintendo, a giant in the video-game industry. The 15-year-old plaintiff, Joey R., had dormant epilepsy. His condition was never diagnosed, and he had never suffered a seizure.

Joey, like so many others in his generation, was an avid video-game player. He and his dad played some of the games together, enjoying each other's company and competing in an activity in which Joey could show off his skills. As his father testified at trial, Joey always won. But his intense playing had adverse effects that neither he nor his family realized.

Video-game playing can trigger seizures in people with dormant epilepsy. Although the number of young people with this condition makes up only 3 percent of the U.S. population, millions of children are affected.

Experts agreed that had Joey reached an age between 21 and 23 without having a seizure, he would have outgrown the condition, would never have had seizures, and would have lived a normal life. But video-game playing triggered his first and 10 subsequent seizures. Now he is at risk for the rest of his life.

Joey must take medication daily to prevent future seizures, and the medication has side effects--such as memory loss, lethargy, cycles of emotional rage, and dental decay--that have altered his life. The medication has made him generally depressed. His seizures have embarrassed him, and the condition has limited some of the activities in which he can participate. For instance, he can no longer play sports, even noncontact sports like swimming, and he must avoid any potentially dangerous activity, like climbing a ladder.

Fortunately, Joey is a strong and determined individual, and his parents are loving and supportive. But had his condition not been triggered by video games, his quality of life would be different. I am sure Joey would say that it would be better.

In Louisiana, where Joey's case was tried, the aggravation of a preexisting condition such as dormant epilepsy is grounds for an action in tort.

Plaintiff and defense experts agreed that Joey's first and subsequent seizures were triggered by playing Nintendo's video games. This revelation seemed to come as a surprise to Nintendo.

During discovery, Nintendo said it had only recently learned that its products could trigger dormant epilepsy, had conducted no research on the subject, and was not aware of independent studies. But the attorney who associated me on the case already knew otherwise. He and a Loyola University student with good Internet skills uncovered many independent studies and found that the English and French governments had researched and regulated the video-game industry for years.

These governments had established guidelines for safe game playing, developed warnings to be included prominently on the face of each game, and screened games and television commercials to determine their potential for triggering epilepsy. Most of these measures were in effect long before Nintendo began to bury warnings in the small print of the game booklets for products sold in the United States.

In 1992, Nintendo applied to copyright the contents of its game booklets, including the warning that playing video games could trigger seizures in people with dormant epilepsy. Nintendo argued that it became aware of this problem only shortly before it copy-protected the warnings. But discovery in the case revealed that Nintendo's corporate counsel had written the warnings in 1991.

Nintendo demurred on all questions about who else in the organization had information about the triggering effect of game playing and consequently about the text of the warnings. The company even refused to provide the names of experts familiar with seizures triggered in approximately 700 children by a televised cartoon based on its Pokemon video game. And it refused to admit knowing that various components of its games had been identified by independent research as seizure-triggering factors.

Throughout discovery and trial, Nintendo played dumb about most of the information in its possession and failed to produce the documents that would have revealed its knowledge.

As is often the case with litigation that uncovers new information when the defendant fails to respond to discovery, we did not have the facts in enough time to present them convincingly to the jury. We won a partial decision because jurors found that Nintendo should be liable for triggering Joey's seizures, but they could not take the next step and find that Nintendo's actions--in fact, omissions--were the proximate cause of the seizures. We also prevailed twice on motions for contempt for the defendant's failure to properly respond to discovery and once for its conduct during the trial.

Joey and his family feel we won a moral victory on the failure-to-warn issue. They hope this will cause the company to improve the warning, which may help someone else.

As a result of continued investigation, we learned about the science and technology of these products. We were not able to get Joey compensated, but we have made most of our discoveries available to counsel in similar suits.

When our research first began on this case, there were only three Internet sites that contained information pertaining to video-game-triggered seizures. As of January 2001, there were almost 4,000 of these sites.

Millions of American children have dormant epilepsy--perhaps our loss in this litigation may soon be their gain.

Wendell H. Gauthier practices with Gauthier, Downing, LaBarge, Beiser & Dean in Metairie, Louisiana.

Slaying the dragon

Sharon became my friend long before the trial. In our first interview, I admired her gentle spirit, deep love of family, and dedication to friends. In the last 25 years, I have had the opportunity to help hundreds of injured people and their families receive some monetary compensation, but Sharon's case stands out as one of the most satisfying jury verdicts of my career. Her success had a ripple effect on several generations of people and strengthened their confidence in our civil justice system.

Sharon is a middle-aged working mother who lives in the backwoods of South Jersey with her husband, who has a disability, in a small house that used to be a stable. At the time of her motor vehicle crash, her two children were grown and had made Sharon a grandmother twice. Both children, who lacked spouses and income-producing jobs, had returned to the family nest.

So Sharon was the sole support for her entire family. She worked at a local store that allowed her to work overtime to earn additional income for the mouths she had to feed. Sharon could not afford a car--let alone gasoline and maintenance. She walked the six miles to work or, on inclement days, rode her motor scooter.

Sharon was riding her scooter home from work one night on a lonely, two-lane asphalt road when, suddenly and without warning, a driver ran a stop sign and drove directly into her path. There was no time or space for any evasive maneuver. Sharon's motor scooter crashed head-on into the right side of the car. Her right knee dented the car's door, then she bounced off the car and onto the road, where she was almost killed by an oncoming vehicle.

Sharon's primary injury was a fractured right kneecap, in which she developed traumatic arthritis. The case was defended by Rutgers Casualty Insurance Co., which takes a "stonewall" position in many cases. The adjuster decided that because Sharon was on a motorcycle (an inaccuracy, since it was a Vespa motor scooter), the company should discount both liability and the injury, claiming "it was just a little crack in her patella."

Using the adjuster's reasoning, had Sharon been driving an automobile or had she fractured a more substantial-sounding bone, her personal injury claim might have had more settlement value.

I tried to demonstrate to the adjuster that this "little crack" was, according to Sharon's treating doctors, preventing her from doing the overtime work necessary to support, the family. This explanation proved unsuccessful, so we filed suit.

The case wound its way through the usual discovery. Then, as required by New Jersey rules, we proceeded to mandatory nonbinding arbitration.

Sharon was satisfied that the arbitration award rendered was consistent with our presuit evaluation and settlement demand. "So? What happens now, Tom?" she asked me as we left the arbitration. I tried to temper Sharon's faith in the fairness and reasonableness of our adversary by citing state statistics on appeals from arbitration awards. Usually, defense insurance companies refuse to accept anyone else's evaluation and demand a jury trial. As I predicted, the carrier refused to abide by the award, appealed, and requested a trial de novo.

Sharon's case proceeded to trial with a full-court press applied by the defense. It claimed that Sharon was driving her scooter too fast, that if she had been driving slower, she could have avoided the car, which, by all eyewitness accounts, did not stop for the stop sign. The defense also used a so-called independent medical examiner (IME) who was board-certified in orthopedic medicine. He distorted Sharon's history of the traumatic event, discounted her complaints, and dismissed the testily, had her perform, as well as her other test results.

The examining doctor "forgot" to tell the jury that when he asked Sharon to do squats, she screamed in pain. He also "forgot" to tell the jury that she told him she could not work overtime or climb ladders to stock the store's shelves. (The ladder, a wheeled set of stairs with handrails, became a helpful trial exhibit because it was not the extension-type ladder the defense examiner had assumed it was.) What frustrated Sharon about the examiner's testimony was that it made her seem to be exaggerating or malingering.

Two orthopedic surgeons and a specialist in arthritis had tried to help Sharon over several years of treatment. They told the jury her knee would never recover and would only get worse. Yet the IME, who had scanned Sharon's X-rays and examined her in about 15 minutes, insisted that she had a fully recovered patella fracture with no residuals. He said her knee would be fine for the rest of her life. He said her complaints could be due to "secondary gain"--defined by Sigmund Freud as "interpersonal or social advantage attained by the patient as a consequence of his/her illness"--or "emotional/hysterical conversion overreaction," a mental illness characterized by the loss or alteration of physical functioning without any physiological reason.

To Sharon, this opinion was the unkindest cut of all. To be told she could have avoided the collision was ridiculous. But saying she could work through the pain was heartless. To tell her she was overreacting or just outright lying to get money was an unconscionable character assassination. Sharon and I suffered through the allegations. She worried that jurors would believe these false accusations. She worried that they would not recognize her honesty, life of hard work, and caring for her family.

Luckily, we found an effective way to prove the truth. It is said the best cross-examination is a good rebuttal. In rebuttal, a radiologist who did not know who I represented looked at the same X-rays as the IME and said that the doctor "must have been looking at some other X-rays" when he told the jury Sharon's knee would be fine. The radiologist said the X-rays clearly showed that there was no joint space between the patella and tibia and that bone was resting on bone, a condition that would cause excruciating pain with any movement and would only get worse over time. It would never get better.

Sharon received a verdict in excess of the arbitration award and far greater than the defense's last offer. It was enough money for Sharon to remodel her small house into a more livable home for her husband and sizable family. She was also finally able to start a savings plan for the future and afford gifts for her grandchildren.

But, to Sharon, the money was not as important as the vindication of her character. To be called a malingerer, a whiner, and a conniver had made her distrust a justice system that has grown cold during years of tort "reform." As she explained to me afterward, the verdict reaffirmed her life and made her feel that she had value. That experience, she said, she would take to her grave. It was a civics lesson she constantly repeats to her children and her grandchildren.

Through the courage of one woman, several generations learned that even in our time "right makes might." After the verdict, Sharon wrote me a poem:

   Of that fateful night in September;
   I will always choose to remember;
   Out of the darkness and into the light;
   Came my shining White Knight;
   He rode on no steed;
   He carried no sword;
   Paper and pen were all that he bore;
   He went into battle;
   And gave a great fight;
   He took up the gauntlet;
   And made it all right;
   He fought with the dragon;
   His pen it struck true;
   And when it had ended;
   The dragon he slew;
   He gave of his heart;
   and found to the end;
   I would be proud;
   To call you my friend.

--Sharon June 1999

Thomas J. Vesper practices with Westmoreland, Vesper & Schwartz in West Atlantic City, New Jersey.

Averting disaster

In his 1976 book Heroes, Joe McGinniss concluded that human beings today are "mythless, heroless, forced beyond the limits of illusion ... as an infinitesimal and appallingly fragile part of a universe."

A gentle, soft-spoken farmer's son from Post, Texas, proved to me that McGinniss is dead wrong--heroes are alive and well in America. Norm Washburn risked his life to save others when a standby propane heating system blew up, turning an industrial office park into an inferno. Norm suffered third-degree burns over 70 percent of his body that day. I represented him later against the companies whose negligence put Norm and hundreds of his Boeing Co. coworkers in harm's way.

When Norm went to work on October 15, 1986, it seemed like a typical day in his life as an electrician at Boeing's Kent, Washington, industrial compound. Always eager to lend a hand, Norm was showing a coworker, Scottie Holmes, how to test the standby propane fuel system. Suddenly, the area exploded into a giant wall of flame. The fire was so intense that cars in the nearby parking area spontaneously exploded in the chain reaction of secondary blasts.

Norm and Scottie were surrounded by flames in the center of the fireball. From his Navy training, Norm knew to roll on the ground and put out the flames that had consumed most of his clothing and several layers of his skin. But Scottie was running around in circles, completely aflame, screaming and gripped by panic. Coworkers on the perimeter of the fire watched in horror.

With no thought for the additional injury it would cause himself, Norm ran to Scottie, tackled him with a bear hug, and smothered most of the flames. Then, he forced Scottie to the ground, rolling him around to extinguish the rest.

With Scottie stabilized for the moment, Norm called to nearby forklift driver Constantino Hardy, "Hardy, turn off the propane pump on the tank now, or this whole place will blow!" It is a miracle that amid the panic and confusion, Norm remembered that the main valve to the huge propane tank was still open, continuing to fuel-the fire. Like a lit fuse leading to a dynamite keg in an old silent movie, the open valve put hundreds of workers in extreme danger. The whole area was seconds away from an explosion of unimaginable proportions. Constantino scrambled to the shutoff valve and narrowly averted disaster. Once the valve was closed, the fire subsided.

A trauma center helicopter came quickly, but it could not take both men to Harborview Hospital. Norm said, "I'll be OK. Take Scottie first. He's hurt real bad."

When told of Scottie's death a few days later, Norm's grief was profound. He would think in the weeks, months, and years ahead, "Why couldn't I have saved him?"

The man I met in my office three years later sat quietly, holding hands with Sharon, his wife of over 30 years. He wore a green baseball cap pulled down tight to hide the scarring on his head and scalp. He insisted that he had done what anybody would have done.

I learned that his heroics had not ended on the day of the propane blast but continued through multiple operations and extensive rehabilitation.

Because all the skin was burned off both sides of his hands from the effort to save Scottie Holmes, doctors told Norm that he would never work as an electrician again. However, he proved them wrong. Two years after the explosion, he returned to Boeing as an electrician, having set the record for physical therapy appointments at Valley Medical Center. He was given a special award by the staff for the most astonishing rehabilitation effort any of them had ever seen.

The company principally responsible for the shoddy work that led to the explosion refused to be accountable for its actions, so we went to trial. Reliving the terror of the event and the suffering t it caused was nearly unbearable for Norm. He had splitting migraine headaches every day and left the courthouse physically and emotionally spent. But he believed that the legal system would provide justice.

After the clerk read a jury verdict higher than I had asked for, the jurors rushed over to hug Norm and shake his hand, many of them with tears in their eyes. The defendant took the case all the way to the Washington Supreme Court, which upheld the trial judge's rulings and the jury verdict in all regards, telling the defendant to pay up. Four years after he first came to see me, this chapter in Norm's life was finally finished.

When Norm and Sharon came to my office to get their check a few months after the mandate, Norm fished in his jacket pocket to give me something. It was a white porcelain cutout of the state of Texas, with a cotton boll in the middle. He said, "This is just so you won't forget a Texas farmer's son you once knew." It's been on my desk ever since, the symbol of the quiet heroism of a man who not only risked his life to save others, but changed my life by his example.

William S. Bailey practices with Fury Bailey in Seattle.

Acknowledging a military wrong

Over the spring and summer of 1970, I took a transitional job as special counsel in the American Civil Liberties Union's national office. The ACLU sent me to Portage County, Ohio, to investigate the shootings by the Ohio National Guard at Kent State University. "Four Dead in Ohio," read the May 4, 1970, headlines--and nine wounded; one rendered a paraplegic.

The students were shot during a demonstration protesting the U.S. government's bombing of Cambodia and the presence on their campus of National Guard troops, which students believed were sent to suppress the antiwar protest. After the shootings, a nationwide student strike and boycott closed down hundreds of colleges and universities throughout the country. The story of the Kent State victims is truly a remarkable one.

When I returned from my investigation in Ohio, I helped defend the student body president, Craig Morgan, against criminal charges of inciting to riot; tried the federal civil rights lawsuit that contested illegal searches of the students' dorm rooms after the shootings; and worked on a suit that attempted to get court orders to reform National Guard weaponry, orders, and training for control of civil disorders. I also proposed filing damages suits on behalf of the student victims.

We won Craig Morgan's case and the search case but lost the lawsuit to reform the National Guard.

There were 13 victims of the shootings, all university students.

* Sandy Scheuer, a 20-year-old junior, was killed. She was struck down about 350 feet from the line of fire.

* Jeff Miller, a 20-year-old junior, was killed. He was struck down about 200 feet from the line of fire.

* Bill Schroeder, a 19-year-old sophomore and ROTC member, was killed. He was struck down about 330 feet from the line of fire as he was walking to class.

* Allison Kraus, a 19-year-old sophomore, was killed. She was about 325 feet from the line of fire.

* Joe Lewis, an 18-year-old freshman, was wounded. About 60 feet from the line of fire, he was shot twice, in the abdomen and in the leg. Just before the shooting, he made an obscene gesture at the troops.

* John Cleary, a 19-year-old freshman, was wounded. About 60 feet from the line of fire, he was shot in the chest. He later became an architect.

* Tom Grace, a 20-year-old sophomore, was wounded. He was about 150 feet from the line of fire when a bullet took away a large portion of his left foot. He works for a state government.

* Jim Russell, a 23-year-old postgraduate student, was wounded. About 160 feet from the line of fire, he was shot in the right thigh and right forehead. He became a city planner.

* Alan Canfora, a 21-year-old junior, was wounded. About 175 feet from the line of fire, he was shot in the right wrist. He is active in politics and was a county-level manager for the Clinton-Gore campaign.

* Dean Kahler, a 20-year-old freshman, was wounded. About 205 feet from the line of fire, he was paralyzed from the waist down and rendered paraplegic. He became an elected county government official.

* Doug Wrentmore, a 20-year-old sophomore, was wounded. About 340 feet from the line of fire, he was wounded in the left knee and leg.

* Robbie Stamps, a 19-year-old sophomore, was wounded. About 500 feet from the line of fire, he was hit by a bullet in the right buttock.

* Donald MacKenzie, a 21-year-old junior, was wounded. He was about 500 feet from the line of fire when a bullet entered the back of his neck and exited through his cheek, shattering his jaw. He became a teacher.

The victims' damages cases were consolidated, leading to a 15-week trial in U.S. district court in Cleveland in the summer of 1975. It resulted in a jury verdict and judgment for the defendants. By then, the Kent State family--which consisted of the families of the 13 victims, the Rev. John Adams of the United Methodist Church, and other friends and supporters--had became a political force that lobbied for change and justice. It insisted on pursuing the damages cases after losing that trial. The family became the model for future victims' families, such as the relatives and friends of the victims of the Pan Am Flight 103 bombing over Lockerbie, Scotland, because it was determined to see the damages cases through to the end.

In the fall of 1975, I took on the Kent State victims' appeal, even though I was told not to expect to win, that it was "hopeless, but for the sake of history, the appeal must be taken." "It must not be written," I was told, "that the victims did not appeal, therefore they acquiesced." I agreed to take on the appeal--but I intended to win.

A team of lawyers and paralegals worked out of my house on the appeal. At oral argument in Cincinnati, Dean Kahler sat up front in his wheelchair.

The court unanimously reversed the trial court and remanded the case for retrial. We filed more than 20 pretrial motions, all designed to improve the conduct of the new trial compared with the first. We also prepared a motion to disqualify the original trial judge because we believed he was prejudiced against the victims. He withdrew before we filed the motion but took a parting shot at the victims, declaring in a press interview that they were foolishly refusing to settle the case and that they could not win.

The new trial judge, William Thomas, had a reputation for being a fair judge. He had favorably decided the Kent State search and seizure case and had ordered expunged a Portage County grand jury report that excoriated the Kent State students. The report was unauthorized under state law and had been illegally unsealed and published.

During opening statements, when one of the defendants' lawyers used a nonsense phrase, "de-de-de-de-de," in place of the protest chant, Thomas ordered the lawyer to use the real phrase, "One, two, three, four. We don't want your--war." In that instant, Thomas demystified the chant and many of the events.

Thomas granted all but one of our pretrial motions, including one to exclude bricks and rocks from the courtroom. At the first trial, the defendants' lawyers brought sacks full of bricks and rocks into the courtroom, where they remained as a reminder that similar items were thrown at the Guard officers before the shootings.

Jury selection was a problem, even though we were assisted by consultants from the National Jury Project. Several potential jurors asked to be excused, but were not. We worked to retain many--for example, one who had been a paratrooper in the Korean War. We believed he knew that well-trained soldiers would not have opened fire at Kent State.

Many jurors were excused for cause, and several potential jurors whom we believed were prejudiced fought hard to stay on the jury. We were not very happy with the panel that was finally selected. The jury consultants thought there were a few biased jurors on it.

Thomas wanted to explore settlement, and both sides agreed that he could act as settlement judge. He interviewed the victims, examined some of their visible scars, considered the invisible scars, and fully evaluated the case. My clients agreed to his settlement figure--on the condition that the defendants each sign an acknowledgment that the victims had been wronged. The words of that statement were hard fought.

The defendants agreed to the settlement figure, which had to be funded by the state. The politicians floated it to legislators and the press, and time passed. So we started the trial. After our first four witnesses testified, the state agreed to the settlement.

The Kent State damages case was the first in U.S. history in which damages were paid to the victims of shootings by the military and in which state government officials acknowledged in writing that a wrong had been done to the victims. Since the Kent State and subsequent Jackson State shootings--where on May 14-15, 1970, two students were killed and 12 wounded by police during riots over issues including the war and the Kent State shootings--I do not believe there has been a single civilian fatality in the control of an assembly or the suppression of a civil disorder in the United States, excluding siege situations.

The damages case has led to reform of National Guard and other peacekeeping forces' weaponry, orders, and training used to control assemblages and civil disorders. The Kent State shootings are used as an example in National Guard training classes of what not to do in controlling civilian and campus disorders. No longer do National Guard troops regularly patrol with their weapons "locked and loaded," but load only when expressly ordered by an officer. They are also trained to use nonlethal weapons.

I would like to be able to say that ending the case gave the victims some peace of mind. I cannot say it did. Certainly the money helped Dean Kahler to lead a better life, and it assisted the other victims as well. But did it bring peace of mind? No. The wailing from the parents of the slain students that I heard in our war room in the Cleveland federal court still haunts me. Even now I become moody as each May 4 approaches, and I know the victims and their families continue to mourn for the lost and damaged lives that had been so full of promise.

I have heard many reactions to the Kent State shootings from around the world, from people living in countries long used to slaughter of civilians by soldiers and police. It does not matter that measured on any world scale, few were killed or wounded at Kent State. It should not have happened.

Recently, when I was in Hawaii trying a case, I met a retired Marine in a shop one Saturday. He had mustered out as a gunnery sergeant and had served two full tours in Vietnam, the last one ending with the evacuation of Saigon in 1975. When I told him that I had represented the victims of the shootings at Kent State, he looked mournful and then angry. "They were murdered," he said.

Sanford Jay Rosen practices with Rosen, Bien & Asaro in San Francisco.