Public Justice Announces Finalists for 2019 Trial Lawyer of the Year Award
The five finalist cases for Public Justice’s 2019 Trial Lawyer of the Year Award include landmark cases dealing with school negligence of students with disabilities, a twenty-year fight against Dark Money in politics, illegal straw purchasing of firearms used in a murder, industrial pollution in the San Francisco Bay, and factory farms ruining the quality of life of low-income communities of color.
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 Annual Gala and Awards Dinner on Monday, July 29 in San Diego. Here are the four finalist cases for the award:
Gloria G. v. City School District of the City of Mount Vernon
On December 19, 2011, a 13-year-old mentally disabled girl was raped by an older male student after departing her public school. She was supposed to be placed on a school bus to travel to and from school, but instead walked home that day with her rapist when school officials failed to ensure she was on her scheduled bus. Soon after being raped, the student was subjected to months of bullying by other students, culminating in a violent attack in the girls’ locker room on March 19, 2012. The attack, which one attacker recorded and posted online, caused brain injuries and memory impairment. Video of the assault was even subsequently broadcast on the local news.
In bringing legal action against the school district, the team representing the survivor showed that the school was supposed to ensure the plaintiff was on a school bus, and account for her whereabouts at the end of the school day, but failed to do so, allowing her to walk home with her rapist. Further evidence showed that after the plaintiff faced months of bullying following the rape, the school also promised it would have “eyes on” the student, meaning that the plaintiff would not be unsupervised, but that four days later a teacher’s assistant told the plaintiff “I don’t care where you go.” The student then went to use the bathroom in the girls’ locker room where the four girls attacked her, slamming her head against a bench and the floor.
In a stunning defense, the school claimed the survivor was a willing participant in the altercation in the restroom, and that she had fabricated the rape. School officials insisted on their version of events despite counsel’s evidence that the student lacked the cognitive skills necessary to fabricate such a claim, and that the substance of her rape allegations were consistent over the course of several years. In addition to this victim shaming, the school district also fought to keep certain documents hidden, attempting to hide more than 20 sets of document requests that needed follow-up through motion practice due to the defense’s intransigence.
After four weeks of trial and a full day of deliberation, the jury found the Mount Vernon City School District 99% liable for the plaintiff’s injuries, and one of her classmates 1% liable. She was awarded $8 million for past pain and suffering, and $20 million for future pain and suffering for 60 years in what is believed to be the largest verdict for a single-plaintiff sexual assault case in New York state history.
Team: Andrew Buzin, Buzin Law, New York, N.Y.; Jordan Merson, Merson Law, New York, N.Y.
Hale v. State Farm
In 1999, the law firm of Lieff Cabraser, along with co-counsel, filed a nationwide class action in Illinois state court accusing State Farm of using lower-quality automotive parts from non-brand manufacturers to repair the vehicles of about 4.7 million policyholders. In 1999, the legal team won a $1.2 billion verdict against the insurance company, which was largely affirmed by the intermediate appeals court before State Farm asked the Illinois Supreme Court to revisit the decision. While the company’s case was being reviewed by the state supreme court, plaintiffs began to suspect that State Farm was providing significant funding to the successful 2004 state supreme court campaign of Judge Lloyd Karmeier. In wake of those concerns, the team filed a motion requesting that Karmeier recuse himself from the case. In opposing that motion, State Farm argued that it had not contributed money, directly or indirectly, to the judge’s campaign. Justice Karmeier ultimately refused to recuse himself, and, by his own account, “broke the deadlock” when he voted to overturn the billion-dollar verdict in its entirety, at which point the case appeared to be over.
Then in 2009, the United States Supreme Court decided Caperton v. A.T. Massey Coal Co., in which the Court found that in a similar case, a company’s contributions to a judge’s campaign – and the judge’s refusal to recuse himself – violated the plaintiffs’ due process rights. Relying on Caperton, the original Hale team proceeded to investigate further, and filed a motion to withdraw the original mandate in the Illinois Supreme Court, citing new evidence. The court refused to do so, relying on State Farm’s renewed insistence that it had not made any contributions to Karmeier’s campaign.
The legal team remained convinced, however, that State Farm was lying and that, as their investigation revealed, the company had funneled millions of dollars to the Karmeier campaign through intermediaries like the U.S. Chamber of Commerce, the Illinois Chamber of Commerce, and the Illinois Republican Party. In 2012, counsel filed a new action alleging that State Farm had engaged in a RICO conspiracy. The action described the company’s furtive scheme to seat a sympathetic justice and alleged that State Farm had engaged in mail fraud (a predicate of the RICO conspiracy) when it denied in pleadings that it had not funded the Karmeier campaign.
The resulting case was incredibly hard fought, with State Farm arguing repeatedly that the plaintiffs could not prove that the company had funneled money to the Karmeier campaign. State Farm further alleged that there was no RICO causation because the Illinois Supreme Court ruled unanimously on certain issues in the original case, and that the plaintiffs’ case was barred by the statute of limitations. Despite State Farm’s arguments, the legal team survived motions to dismiss, certified a nationwide class, defeated multiple summary judgment motions, overcame three separate appeals to the Seventh Circuit, and secured significant pre-trial in limine victories. In all, the parties briefed more than 100 contested motions, deposed 68 witnesses (including Chief Justice Karmeier), and prepared for what was to be a six-week trial.
Just days after the trial began – and mere hours before Justice Karmeier was scheduled to testify – the parties reached a $250 million non-reversionary settlement. Rather than risk trial and wait years through the inevitable (and also risky) appeals process, the settlement delivered immediate and significant relief to class members who had been waiting more than 20 years. And, notably, it employed a state-of-the-art distribution process that will ultimately pay nearly 1.5 million class members automatically, without the need to submit a claim form. In addition to the compensation for policyholders, the Hale team was also able to shine a spotlight on, and gain critical attention for, the problem of dark money in judicial elections.
Team: Robert Clifford and Kevin Durkin, Clifford Law Firm, Chicago, Ill.; Elizabeth Cabraser, Robert Nelson, and Kevin Budner, Lieff Cabraser Heimann & Bernstein LLP, San Francisco, Calif.; Steve Blonder, Much Shelist, Chicago, Ill.; Tom Thrash, Thrash Law Firm, Little Rock, Ark; Gordon Ball, Ball Law Firm, Knoxville, Tennessee; Don Barrett and Richard Barrett, Barrett Law Group, Lexington, MI; Patrick Pendley, Pendley Baudin & Coffin, LLP, Plaquemine, LA; Erwin Chemerinsky, Berkeley Law School, Berkeley, CA.
Englund v. World Pawn Exchange
On April 28, 2013, Kirsten Englund stopped at a scenic overlook on the Oregon coast and was shot and killed by a mentally ill man armed with firearms that he acquired through online purchases. The firearms he used were bought by the shooter from an online dealer who sells guns across the country. In this case, the guns were collected from a local pawn shop by the shooter’s mother.
When someone other than the true purchaser of a firearm provides their name, completes the background check, takes possession of the firearm and then hands it off to the true purchaser, such actions constitute a straw sale, which is illegal.
Ms. Englund’s family alleged that on three separate occasions over a period of less than three months, the shooter purchased semi-automatic firearms online from defendant firearm dealer J&G Sales, which transferred those firearms to a second defendant firearm dealer, World Pawn Exchange, which then transferred the firearms to the shooter’s mother and ultimately into the possession of the shooter himself. The Englund case sought to fill a significant gap in existing jurisprudence by establishing that online firearms dealers are subject to the same standard of care as firearms dealers operating from physical locations.
In the wake of this shooting, the dealer defendants sought refuge from legal liability under the Protection of Lawful Commerce in Arms Act (PLCAA), a federal statute that largely pre-empts state law claims against firearms companies. The defendants argued that neither could be liable for the death resulting from these online straw sales because one dealer made the sale but did not have responsibility for the background check, and the other dealer had responsibility for the background check but did not make the sale.
The settlements, the only ones obtained in U.S. litigation relating to online straw sales, required the dealer defendants to make specific, meaningful changes to their firearm sales practices that are designed to ensure firearms are provided only to the actual purchaser and to make it less likely that any other family will suffer a similar tragedy. For the first time, dealers involved in the online sale and transfer of firearms were held to account for their role in a tragic death. Earlier in the case, the Englund family had also obtained a $400,000 settlement with the shooter’s mother – believed to be the largest monetary settlement obtained from an individual straw purchaser.
In addition to these important business reforms and financial recovery, the Englund litigation produced comprehensive written opinions denying the defendants’ motions for dismissal and for summary judgment based on PLCAA. These decisions were the first in the nation to establish the precedent that firearm dealers are subject to the same principles of negligence law whether they sell firearms in person or online.
Team: Julie Goldsmith Reiser, Molly J. Bowen, and Sally Handmaker Guido, Cohen Milstein Sellers & Toll PLLC, Washington, D.C.; Raymond M. Sarola, Cohen Milstein Sellers & Toll PLLC, Philadelphia, PA; Jonathan E. Lowy, Erin Davis, and Josh Scharff, Brady Center to Prevent Gun Violence, Washington, D.C.; Thomas D’Amore, D’Amore Law Group, Portland, Ore.
Ecological Rights Foundation v. Pacific Gas & Electric Co.
Ecological Rights Foundation (ERF) sought summary judgment and injunctive relief against Pacific Gas & Electric for ecological pollution in the San Francisco Bay following the legal team’s field investigations and site sampling that discovered storm water discharges and dust tracking from at least thirty-one PG&E facilities in northern California containing levels of dioxins and pentachlorophenol (PCP) that exceeded regulatory agency standards, often by a factor of 10,000 or more. The toxins, resulting from treatment of utility poles, are known to cause birth defects, immunotoxicity, and harmful impacts on reproductive health, even at extremely low exposure levels.
ERF filed suit under the citizen-suit provisions of the federal Resource Conservation and Recovery Act (RCRA), alleging that PG&E’s handling and disposal processes for solid waste may have endangered the health of the environment and local residents; and the federal Clean Water Act (CWA), alleging that PG&E polluted American waterways without a permit. The District Court held, however, that the Environmental Protection Agency (EPA) excluded facilities like PG&E’s from regulation under the CWA, and, furthermore, that under the RCRA’s “anti-duplication” provision, the EPA’s exclusion precluded regulation of PG&E’s water runoff from regulation under the RCRA.
The Ninth Circuit subsequently reversed the District Court, however, holding that the CWA exemption did not automatically preclude regulation under RCRA. As a result, RCRA may now be interpreted to serve as a catch-all mechanism for solid waste disposal that can be used to address any regulatory gaps left by other laws.
After prevailing on appeal, the legal team engaged in a nine-month settlement negotiation and mediation with PG&E. ERF was able to persuade the company to enter into a consent decree requiring that PG&E develop and implement pollution controls at its Northern California service centers. Under the settlement, PG&E will significantly reduce releases of wood treatment chemicals containing dioxins and pentachlorophenol from thirty-one different PG&E facilities throughout Northern California.
The litigation was fought over a period of nine years, consisting of 265 District Court docket entries, and incurring nearly $300,000 in litigation and expert costs. The practices and technologies created for the settlement can be implemented region-wide, and beyond, strengthening the positive effect of the litigation.
Team: Christopher Sproul, Brian Orion, and Jodene Louise Isaacs, Environmental Advocates, San Francisco, Calif.; Jason Flanders, Aqua Terra Aeris Law Group, Oakland, Calif.; Fredric Evenson, Ecology Law Center, Santa Cruz, Calif.; William Verick, Klamath Environmental Law Center, Eureka, Calif.
In re Swine Farm Litigation
When Mona Lisa Wallace agreed to represent families living next to hog farms in 2013, little did she know then what she was getting into. Over the nearly seven years that followed, her Salisbury, North Carolina firm went up against the largest pork company in the world. The producer, Smithfield Foods, now owned by a Chinese conglomerate, pulled out all the stops. It tried to pass bills in the legislature to block the suits. It created and funded a proxy “grassroots” group, NC Farm Families, to generate sympathy from the public. Lawyers were tailed when they drove to meet families. Clients reported threats and intimidation. During the trial, industry groups sponsored a giant hog rally near the courthouse.
Mona Lisa persevered through it all aided by her talented team of lawyers and staff. Many in her firm lived on the road to try the cases against a defendant with unlimited resources represented by some of the most powerful international defense firms. Her clients had deep roots in their rural communities, only to have their lives changed when giant factory farms with their open-air waste cesspools were built in their backyards. What followed were things no property owner should ever have to endure – the horrible odor, clouds of flies, buzzards circling, trucks leaking filth waking them up in the middle of the night, and kids being teased for smelling like hogs.
A few months before the first trial, the powerful pork lobby worked with the Republican supermajority in the Legislature to pass a law that would have effectively granted the industry retroactive immunity from these suits. But Mona and her team fought it with everything they had, narrowly (by two votes) winning an amendment to exempt these lawsuits from the new legislation so they could fight on.
Working with legendary epidemiologist Dr. Steve Wing, who died before trial but bravely testified on video, and environmental engineer Dr. Shane Rogers, their team showed that there was pig fecal bacteria on the homes and in the air, explaining the sickening smells, headaches, vomiting, respiratory symptoms and other adverse physical symptoms.
Mona obtained critical trial assistance from renowned trial lawyer Mike Kaeske and his firm, and one of the nation’s leading jury consultants, Lisa Blue. This talented team endured five lengthy trials spanning a year winning each unanimously and achieving record-setting verdicts exceeding $500 million. Smithfield has appealed and the battle continues, but the results have already caused positive change in the industry. Mona and her firm are nominated for the second year in a row for trial lawyer of the year.
Team: Mona Lisa Wallace, Mark Doby, John Hughes, Daniel Wallace, Whitney Wallace Williams, Sophie Flynn and Linda Wike, Wallace and Graham, P.A., Salisbury, N.C.; Lynn Bradshaw and Michael Kaeske, Kaeske Law Firm, Austin, Texas; Lisa Blue, Baron & Blue, Dallas, Texas.