BY THE TRIAL TEAM OF PIASTA NEWBERN WALKER, LLCOne evening in February 2013, 42-year-old Carlos Hicks fell through a two-foot hole in a guardrail at the Civic Center MARTA station while waiting for a MARTA bus. He fell 25 feet and broke his neck, causing his death. The medical examiner found Hicks had a 0.311 blood alcohol concentration at the time of death.
So began the wrongful death case of Hicks v. Metropolitan Atlanta Rapid Transit Authority, Inc.
MARTA offered nothing to resolve the case before trial. But, the jury ultimately awarded $11,250,000.00, assigning 85 percent of fault to MARTA, 10 percent to Carlos Hicks, and 5 percent to non-party developers.
This article explores how we set the scene for the jury at trial; addressed the 0.311 BAC; examined multiple 30(b)(6) representatives for MARTA; approached MARTA’s experts; and handled closing arguments.
But first is a brief historical background of the case.
2007- 2013: BACKGROUND LEADING UP TO CARLOS HICKS’S DEATH
Carlos fell to his death on February 9, 2013. But that night does not tell the whole story of the dispute. MARTA extended the story back to 2006. In 2006, neighboring property owners were building the “Twelve Downtown” hotel next to MARTA’s Civic Center Station. According to MARTA, the developers’ or their contractor removed a metal guardrail
to make way for a walkway for another planned structure.
But when the economy collapsed in late 2007, the developers decided not to proceed with the plan for the second structure, and as a result, the walkway was not built. MARTA claimed the developers (or its contractors) erected a wooden guardrail by 2007 where the metal guardrail once stood.
From October 2007 to Carlos’s fall, no one replaced the wooden guardrail with a metal guardrail. From 2007 through 2013—long after the developers had left and abandoned the construction project—MARTA neglected the wooden guardrail on its property. Exposed to the elements, the wooden rail rotted and fell apart into pieces, leaving a two-foot hole right beside a bus stop MARTA located by its wall in 2010.
The hole existed for five months before Carlos Hicks’s death, revealed by “Google Street View” photographs. The gap violated Georgia’s building codes. The codes required that the guardrail be at least 42 inches tall, a requirement designed to prevent falls. With the hole, the wall where Carlos fell was only 25 inches tall.
MARTA claimed that none of its employees noticed the hole before Carlos fell, despite potentially thousands of opportunities. MARTA’s police arrived at the scene within seconds of the fall but failed to take photographs or write down names of witnesses at the scene. MARTA police reported the death a suicide.
A Fulton County medical examiner investigated Carlos’s death and disagreed with MARTA police. The medical examiner concluded Carlos died from an accidental fall, not a suicide. The medical examiner also discovered the presence of alcohol in Hicks’s blood. Per the Georgia Bureau of Investigation, blood drawn from the autopsy showed Hicks had a 0.311 blood alcohol concentration.
Now, armed with some background, let’s move to the trial.
SETTING THE SCENE FOR THE JURY AT TRIAL
One of the first things we did at trial was to take the jury to view the scene where Carlos fell. Helping the jury visualize the scene is a critical step of any jury trial. Investigators and attorneys alike regularly visit the scene to better understand what happened during an incident. So, it stands to reason that the jury should have the same opportunity in a premises liability action.
While there are few civil cases discussing scene views, Georgia law is clear that a trial court has the discretion to take the jury to scene when it is “necessary for the jury to better understand the evidence.” Pritchett v. Anding, 168 Ga. App. 658, 661 (1983). In Georgia, “[i]t is well established that whether a jury should be allowed to view the premises is a matter which rests in the sound discretion of the trial court.” Id. Many premises liability cases fit nicely into this framework.
MARTA’s concern regarding a site visit was the time it would consume, but we gave the Court a detailed plan. The Court granted our request. So, we chartered a bus to transport the jury (along with counsel for both sides and the judge) to and from the Civic Center Station for a quick, 15-minute site visit. The jury saw the 25-foot drop where Carlos fell. They could see with their own eyes where the incident occurred in relation to the Civic Center Station. The view gave the jurors a full-spectrum appreciation for the scene in an efficient and practical manner.
The jury viewed the scene shortly following opening statement. The view took about 60 minutes from leaving the courthouse to returning to the courthouse. The view armed the jury with the tools they needed to critically assess photographs, blueprints, and testimony.
DEALING WITH CARLOS HICKS’S BLOOD ALCOHOL CONCENTRATION
We knew that alcohol would be one of MARTA’s major defenses. We therefore decided to confront the alcohol issue head-on early in the case. Being intoxicated is not against the law. We did not attack the reliability of the BAC level but rather pointed out that MARTA advertises itself as a “designated driver.”
To establish MARTA’s designated driver program existed before Carlos fell in 2013, we found MARTA’s promotional materials from MARTA’s old website pages on the “Wayback Machine.” We then asked the Court take judicial notice of MARTA’s historical website pages, a practice done in other cases. See, e.g., St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1194-95 (11th Cir. 2009) (affirming trial verdict based in part on web archives from Wayback Machine); Perera v. United States, 536 Fed. Appx. 240, 242 n.6 (3d Cir. 2013) (using Wayback Machine to confirm website at particular point in time). This was necessary, because the judge excluded a photograph from approximately 2014 of the designated driver program.
We also called the medical examiner live as a witness to discuss the cause of death and alcohol level. Through the medical examiner, we seized the opportunity to present the facts fully, honestly, and directly. The medical examiner testified that he listed alcohol use as a contributing factor on the death certificate. Instead of distancing ourselves from the medical examiner’s findings, we embraced the medical examiner as a hero for completing a thorough investigation into Carlos’s death, something we argued MARTA failed to do. Without the diligent efforts of the medical examiner, the true circumstances of Hicks’s death (namely, that it was an accident) might have never come to light.
We also took our punches from MARTA’s toxicology expert. MARTA’s toxicologist was called as MARTA’s last witness in the case. She testified that Hicks’s BAC of 0.311 was nearly four times the legal limit to drive a motor vehicle, and that he would have been in the “stupor” stage of intoxication. According to her, stupor symptoms generally include a total loss of coordination and spatial awareness. We trusted the jury to watch the video and make their own determination.
According to the toxicologist, for Carlos Hicks’s height and weight, he would have needed to consume in excess of a 750 ml bottle of vodka (i.e., a fifth) or more during the three-hour period before his fall in order to reach the BAC recorded by the medical examiner. Through the toxicologist, MARTA pulled out and entered its final exhibit, an empty liquor bottle. The empty liquor bottle was entered as a demonstrative exhibit to show the amount of alcohol that Hicks allegedly consumed. We could have objected on inadequate disclosure grounds, but – consistent with our plan to confront the alcohol issue head-on – we chose not to and to instead save up ammo for closing argument.
MARTA closed its case by passing the bottle to the jury. MARTA wanted each juror to touch and feel the bottle as the last thing the jurors did before they heard closing arguments. MARTA envisioned a dramatic close to evidence for the jury designed to severely damage Plaintiffs’ case.
Tactically, we chose not to cross-examine MARTA’s toxicologist; instead we announced, “no questions.” Strategically, we did not want to outwardly challenge the alcohol evidence. We wanted to keep our credibility with the jury. We were better not fighting the case on MARTA’s turf.
CROSS-EXAMINING MULTIPLE 30(B)(6) REPRESENTATIVES
Often a defendant’s conduct during discovery can benefit the plaintiff at trial. That was the situation here with MARTA’s designation of six corporate representatives in response to a 30(b)(6) notice.
We examined every MARTA 30(b)(6) representative at trial. These witnesses frequently took inconsistent positions and contradicted MARTA’s defenses and opening statement. For example, during opening statement, MARTA contended that MARTA surrendered control of the area where Carlos fell, and therefore bore no responsibility for the hole. One of their representatives, however, admitted on cross examination that MARTA exclusively owned and controlled the property where Carlos fell. The admission by the corporate representative undermined one of MARTA’s key defenses. That is but one of several examples.
For us, the takeaway is that when a large corporate defendant identifies multiple 30(b)6 witnesses, embrace it. While it may be a chore to depose everyone during discovery, it can be an advantage for the plaintiff at trial. The worst that will happen with such 30(b)(6) depositions is that the plaintiff can force the corporation to commit to its positions before trial. The plaintiff can also learn the identity of additional documents or witnesses, or better yet, confirm no such documents or witnesses exist.
We elected not to call a retained expert at trial. In premises cases, calling an expert is often unnecessary to meet a party’s burden of proof. If a plaintiff already met the burden of proof, sometimes it is better to call less witnesses than more witnesses. Calling a retained expert can immediately put the other party on offense.
Max Thelen of the Summerville Firm, our appellate counsel embedded with the trial team, had closely monitored the testimony and other evidence being admitted to actively prepare to defend against directed verdict motions. (Mr. Thelen also argued and briefed numerous legal issues that arose before and during trial, kept an eye on appellate risk, and was a huge asset to our team.) After reviewing the evidence, including several key admissions of code violations by a MARTA architect and 30(b)(6) representa-tive, the team concluded that we met our burden and declined to call an expert of our own.
On the other hand, MARTA opened its case by calling a lighting expert as its first witness. The lighting expert had performed “lighting recreations” for MARTA by going to the scene years later. Through the lighting expert, MARTA tried to show that Hicks could have easily seen the hole.
We went on offense. We used a variety of data points to discredit the expert’s testimony, including United States Naval Obser-vatory data on moonlight and the witness’s testing results.
MARTA’s expert made critical errors. Based on Naval Observatory data, on cross-examination, MARTA’s expert admitted that the moon was 98 times brighter during his lighting recreation than it was on the night Carlos fell. By doing so, the expert contradicted his “reasonable degree of certainty” opinions for his lighting recreation. In addition, the witness admitted that MARTA tendered prints of photographs taken at his recreation that appeared brighter than the original digital photographs. The inference was that the paper prints entered did not accurately depict the truth. The expert also could not adequately explain why Carlos allegedly could see the hole whereas MARTA did not for five months.
Before trial, MARTA only asked the lighting expert to determine whether Carlos could see the hole. Indeed, a critical question for a retained expert witness is what “assignment” the opposing party employed the expert to complete. The answer to the question sometimes reveals vulnerabilities of the opposing party’s or expert’s positions. In Hicks, MARTA did not ask the lighting expert to determine whether the lighting at the wall met lighting “safety targets.” In fact, at trial, the expert admitted that the lighting near the wall did not meet “safety targets,” but he testified that MARTA did not ask him to evaluate safety.
The lighting expert’s testimony undermined the credibility of MARTA’s positions. The take away is a plaintiff should be very careful to make its first witness a retained expert witness and should carefully scrutinize every defense expert.
We had first and final close. Per Uniform Rule 13.1, in civil cases, both sides are entitled to two hours each for argument. Between our first and final close, we used a lot of that time.
During the first closing, we addressed the alcohol issue head-on. Before even saying “good morning,” or “may it please the court,” we grabbed the alcohol bottle that had been admitted into evidence at the close of MARTA’s evidence. Then we walked to the jury and held out the bottle and admitted that it was a lot of alcohol. We admitted that a person who drinks an entire bottle of liquor might need help, but first needs a safe ride home from his “designated driver” (MARTA). Thereafter, we walked through the evidence with the goals of proving our claims and discrediting MARTA’s defenses.
During final close, the main focus was damages. Hicks was unemployed and lived with his parents at the time of his death. On the other hand, he was a genuinely fun-loving and generous person who loved his family. We discussed the value of relationships with family, and at the end of the day, how financial success is a small factor in the value of life.
Our approach worked well. We packaged the evidence and information in a manageable and logical format to assist the jury on their big decision forthcoming.
OBSERVATIONS ABOUT THE JURY
After the verdict, the jurors spoke proudly of their service. The jurors took their duties very seriously, and were thoughtful and reflective on the evidence and arguments. They did not hold it against us that we confronted MARTA’s witnesses, raised numerous objections, and fought aggressively for our clients’ cause. The jurors knew the case and their service was important. One juror proudly showed pictures of his family on vacation, which he missed because the case went two weeks. The jurors made many other sacrifices. We took away that the jury was very intelligent and worked very hard towards a just result. ●
ABOUT THE AUTHORS
Piasta Newbern Walker, LLC is a trial firm located in Atlanta, Georgia. The firm’s partners, Edward Piasta, Christopher Newbern, and Mike Walker, contributed to this article.
PHOTO CREDIT: MINDA PHOTOS/SHUTTERSTOCK.COM