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Public Justice Announces Finalists for 2020 Trial Lawyer of the Year Award

Public Justice Announces Finalists for 2020 Trial Lawyer of the Year Award

The three finalist cases for Public Justice’s 2020 Trial Lawyer of the Year Award include landmark cases taking on the Michigan Department of Corrections on behalf of incarcerated youth survivors of assault, factory farms ruining the quality of life of low-income communities of color, and an alt-right conspiracy theorist targeting the parents of Sandy Hook victims.

The award celebrates and recognizes the work of an attorney or team of attorneys working on behalf of individuals and groups that have suffered grave injustice or abuse. It will be presented at the organization’s 2020 Virtual Gala and Awards Presentation online on August 6, 2020. Here are the three finalist cases for the award:

Does v. Michigan Department of Corrections:

Michigan was one of a minority of states where children were incarcerated in prisons with adults. From 2003 to 2017, Michigan’s prison authorities placed vulnerable youth ages 14-17 into the cells and units with adult prisoners, supervised by adult trained prison staff. Remarkably, they did so without screening for risk of assault, and it was not unheard of to place children into cells with known perpetrators of domestic and sexual violence. These minors were subject to routine and pervasive threats and actual assaults, including forced oral sex and rapes by both predatory adult prisoners and prison staff.

In 2010, a class action was brought on behalf of these children for violation of their civil rights under Michigan’s Civil Rights Act and in federal court under both the federal Civil Rights Act and the 8th Amendment’s prohibition on cruel and unusual punishment. The plaintiffs argued that despite the federal government having adopted the Prison Rape Elimination Act in 2003 that the Governor of Michigan and the Michigan Department of Corrections effectively violated PREA, which included required complete separation of youth from adults.

In another 2013 class action, this team representing the youth prisoners challenged the constitutionality of Michigan’s Civil Rights Act, which did not apply to detained or incarcerated individuals. The youth also sought to hold the governor liable for his failure to ensure the safety of children in custody and failure to comply with federal PREA law. The class action lawsuits also focused on the harm caused by sexual victimization by the very people who were charged with custody and safety of these youth prisoners, and the permanent harm caused by placing youth in solitary confinement, sometimes for over a year.

While pursuing their case, the Doe clients were mostly still living under the control of their abusers.  The plaintiffs were and are extraordinarily vulnerable. One wrote to class counsel: “I have nobody but you guys.”

Although counsel tried to protect the clients’ identities with pseudonyms, in some instances, prison staff uncovered clients’ identities. These youth often faced gruesome retaliation from guards. In the midst of litigating the case, class counsel initiated and prevailed in separate federal litigation to address this retaliation, securing equitable and monetary relief.

While the survivors faced retaliation from guards, they also faced aggressive litigation tactics by former Attorney General Bill Schuette. The team was required to engage in constant legal battles, including defending and prevailing in over twenty separate interlocutory appeals.  One of these appeals addressed the question whether prisoners were “persons” entitled to the protections of state civil rights laws. The Does legal team reviewed hundreds of thousands of pages of documents, conducted scores of depositions, and retained numerous top corrections and damages experts. The legal team also pitched in hundreds of thousands of their own dollars to fund the litigation.

Though this litigation, the team was able to: force the state to separate all youth from adults, and decrease the number of youth put in prison from over 400 to less than 25; establish that prisoners are entitled to the protections of basic state civil rights laws and declare that equal protection rights extend to all human regardless of their status; hold the Governor of the state personally liable for the harm to those youth detained in state prisons; void the State’s administrative exhaustion policies, opening up the ability of individuals to challenge unlawful detention practices; secure $80 million in damages for the class; ensure access to occupational, social, and medical rehabilitative services for affected youth; and obtain equitable relief to change the culture for how to safety hold and manage and help rehabilitate youthful individuals in detention.

Team: Deborah LaBelle, Law Offices of Deborah LaBelle, Ann Arbor, Mich;  Jennifer B. Salvatore, Sarah Prescott, Nakisha Chaney, Salvatore Prescott and Porter PLLC, Northville, Mich.; Michael L. Pitt, Cary S. McGehee, Beth M. Rivers, Pitt McGehee Palmer and Rivers P.C.; Royal Oak, Mich.; Richard A. Soble, Soble Rowe Krichbaum LLP, Ann Arbor, Mich.

NC Nuisance Cases:

Mona Lisa Wallace, Lisa Blue Baron and Mike Kaeske and their litigation and trial teams have continued to lead ongoing litigation against the world’s largest factory farm pork producer, Murphy-Brown LLC d/b/a Smithfield Hog Production — the hog growing component of Smithfield Foods. Their cases involve 500 Plaintiffs, 26 separate multi-plaintiff lawsuits, federal court jurisdiction and multiple defense firms representing Smithfield and its cohorts. Beginning in 2013, over years the team has face one challenge after another. Continuing through 2019 and now into 2020, the team has continued pushing ahead and achieving results.

In response to the lawsuits, Smithfield ran an aggressive social media campaign and hired multiple lobbyists. They tried, and partially succeeded, in passing laws to hinder the cases. In the face of these hurdles, the legal team has now conducted five separate federal trials, each about four weeks long, in a series beginning in 2018 and running into 2019. They have won every time before the jury.

Most recently, on March 8, 2019, the team won its fifth straight trial against Smithfield. With this fifth verdict, the team has obtained a combined monetary verdict total in excess of $500 million. While the punitive damage cap statute in North Carolina reduced the judgment amounts, these results are still record-breaking.

The team has consistently sought to use the litigation not only to obtain monetary damages for their clients but also to advance the science regarding industrialized animal feeding operations. The trial court granted a motion for site inspections that allowed leading scientists including Shane Rogers of Clarkson University and colleagues from Johns Hopkins and North Carolina State to enter the farms and take measurements and samples. It was one of the most detailed scientific views into conditions at these facilities that has ever occurred, because the industry has traditionally blocked researchers from access.  Award-winning epidemiologist Dr. Steve Wing from UNC-Chapel Hill gave compelling testimony in a trial preservation deposition before his untimely death from cancer. This testimony was played during each trial. The litigation advanced the science of using microbial source tracking tools to track biological contaminants by their DNA signatures.

As the verdicts came in, Smithfield began appealing the results to the United States Fourth Circuit Court of Appeals. As the cases began working their way up on appeal, the plaintiffs’ team worked with a group of public interest lawyers and nonprofits who filed a series of well-sourced, extensive amicus briefs, opposing the efforts by Smithfield and its industry allies to get the verdicts reversed.

The appeal of the first trial was argued to the Fourth Circuit Court of Appeals in Richmond, Virginia on January 31, 2020 before a three-judge panel. Issuance of a written decision may come at any time.  Further trials have been placed on hold pending the outcome of that first appeal.

As important as the monetary verdicts, this litigation has forced the food animal production industry to change. This change will make daily living conditions more tolerable for these longstanding communities, which are disproportionately communities of color. After first several large punitive damages verdicts came out, Smithfield went public to announce an extensive series of upgrades in how it does business. Driven to action by the verdicts, the spotlight that they cast, and the scientific data that was emerging, the company announced  substantial capital expenditures to make much-needed changes. The company is replacing mortality dumpsters which spread fumes and germs and attract vermin, with freezer-style fixtures. It is moving to the use of refrigerating mortality trucks. It has begun replacing open-air spray guns for waste handling by subsurface injection and low-pressure irrigation. The open-air waste lagoons are being covered or replaced by digesters. Access roads are being relocated away from homes.  Extensive infrastructure changes are being implemented to capture harmful methane and greenhouse gas emissions and turn them into natural gas. The estimated total cost of these long-needed improvements runs to the tens of millions.

By forcing Smithfield to change its systems in the U.S., the hog litigation team of plaintiffs’ lawyers is also causing change on a global level. It is impacting Smithfield’s China-based owner, WH Group, as it commences its plans to replicate American food animal production systems elsewhere. The better, less-polluting technologies the industry is being forced to adopt here will have ripple effects across the globe, not least of all to mitigate global warming.

The Smithfield hog litigation has presented unique challenges. The matter could not be brought as a class action. Personal attention to literally hundreds of clients and witnesses was and is still required.  The commitment by the law firms has been enormous. The positive impact on rural communities of color has been significant. The litigation is a testament to the manner in which plaintiffs’ lawyers can benefit society and social justice.

Team: Mona Lisa Wallace, John Hughes, Daniel Wallace, Mark Doby, Whitney Wallace, Wallace and Graham, P.A., Salisbury, N.C.; Lynn Bradshaw, Michael Kaeske, Kaeske Law Firm, Austin, Texas; Lisa Blue, Baron & Blue, Dallas, Texas.

Pozner v. Fetzer et al.

The team litigated a defamation case on behalf of Leonard Pozner, whose six-year-old son was murdered at Sandy Hook Elementary School in December of 2014, against James Fetzer, a retired former professor who has harassed victims’ families claiming the massacre never happened. Fetzer published a book called “Nobody Died At Sandy Hook” that accused Pozner of distributing a forged death certificate for his son as part of a secret operation to erode Second Amendment rights.

Pozner filed a complaint in late 2018 in Dane County, Wisconsin, where Fetzer resides, asserting multiple counts of defamation. Plaintiff moved for summary judgment on liability; evidence in support of the motion included two rounds of DNA analysis from samples obtained by the coroner during the murdered boy’s post-mortem exam. The team moved to exclude all of Fetzer’s experts on Daubert grounds, and the court found that the experts’ opinions were not admissible. In June of 2019, the court ruled from the bench that each of four statements published by Fetzer were defamatory as a matter of law.

Following the court’s finding, Pozner’s team then pursued damages. To avoid giving Fetzer a platform that might enable him to gain attention for his hateful rhetoric, Pozner dropped his punitive damages claim on the eve of trial. Pozner’s legal team tried compensatory damages to a jury in October of 2019 and obtained a $450,000 verdict for emotional distress and damage to Pozner’s reputation. After trial, Pozner requested a permanent injunction against further publication of the defamatory statements. Although Wisconsin does not categorically bar prior restraints on speech, they are highly disfavored under the state and federal constitutions. The legal team was able to craft an injunction that balanced harm to Pozner against First Amendment concerns.

Fetzer has twice been held in contempt for violating the court’s confidentiality order by disclosing Pozner’s deposition transcript and video to unauthorized recipients. Fetzer sent copies of Pozner’s videotaped deposition to other conspiracy theorists, who then posted Pozner’s face online and sent emails to the hoaxer community alleging that Pozner is an imposter.  Pozner has been the target of death threats and takes great pains to protect his identity, so this disclosure was especially damaging.

At the first contempt hearing, the court sentenced Fetzer to jail, but stayed incarceration pending a set of purge conditions. At the second contempt hearing, the court refused to incarcerate Fetzer because of the COVID-19 pandemic, and instead awarded attorney’s fees for the entire litigation to Pozner, which should add increase the judgment to nearly $1.2 million.

Pozner v. Fetzer is the first known defamation case tried to verdict on behalf of a victim’s family against alt-right hoaxers who harass victims and their families after mass casualty incidents. The case also validates the use of the judicial system to separate fact from fiction. As such, it showed that courts can be a valuable way to expose hoaxers for their reckless and willful refusal to recognize facts as reality, and hold them responsible for the harm their defamatory statements cause.

Recognizing the social and legal significance of the case, the lawyers took the case with full expectation and understanding that the realities of the litigation and the financial condition of the defendant meant this work would be pro bono, with costs advanced out of the lawyers’ pockets.

Team: Jake Zimmerman, The Zimmerman Firm, St. Paul, Minn.; Genevieve Zimmerman, Meshbesher & Spence, Minneapolis, Minn.; Emily Feinstein, Marisa Berlinger, and Emily Stedman, Quarles & Brady, Madison, Wis.