HIOJ: A Team Tirelessly Pursuing the Truth

HOW I OBTAINED JUSTICE FOR MY CLIENT

A Team Tirelessly Pursuing the Truth

By Michael L. Neff

There were two Avis trials in 2017 – a two-trial gauntlet that stretched from January to February, and then late February to early March. On a variety of levels, back-to-back trials made a lot of sense. The defense had sought to delay the trials repeatedly through sanctionable discovery tactics and motions practice. Specially setting the cases to be tried with a three-week break in between allowed the trial Judge to focus on the cases (which had occupied his calendar for over three years). I presume that after we obtained a $47 million verdict in the first case, the Judge hoped that keeping the second trial on schedule (even after the Defendants filed yet another motion for continuance), would persuade the parties to settle the second case. It didn’t work out that way.

Obtaining a successful verdict starts when the case is first accepted. Mentally, I have to prepare to be ready to try every case our firm accepts. By the time we accepted Adrienne Smith and Brianna Johnson’s cases, these two young women had already experienced a lifetime of suffering. They deserved someone to fight to find out the truth and pursue justice. It took a lot more than one person to get there.

On the evening of August 23, 2013 they were enjoying a quiet evening in a park in Atlanta’s West End. The park is nestled deep in a neighborhood and provided a respite from the bustle of the city. Adrienne, 22, and Brianna, 21, had been best friends for years. As they sat on a wall at the edge of the park, they talked about their days, their families, and their aspirations for the future.

Without warning, a Ford Edge rounded a corner at 70 miles per hour and veered off the road, striking both Adrienne and Brianna. Adrienne was found conscious at the scene and in severe pain. Both of her legs were fractured and her left leg was torn off because she had been dragged under the SUV.

Adrienne suffered abrasions on her face and back, as well as a large laceration on her right leg and a fracture of her left wrist. Adrienne was admitted to Grady Hospital in critical condition, and she was hospitalized for 32 days. She underwent five (5) surgeries, including an above-knee left leg amputation and surgeries to place nails and pins in her right leg and to set her left wrist. She received a prosthesis for her left leg.

Brianna was initially found unconscious at the scene, pinned between the vehicle and a fence. She regained consciousness at the scene, was in severe pain, and immediately began having trouble breathing. She suffered multiple, severe traumatic injuries. Brianna had multiple abrasions, bruising and lacerations all over her body, including a 12-inch laceration on her left thigh. She had blood on her face around her nose and mouth. In the ambulance ride to the hospital, she cried out, “I am going to die!”

Brianna was admitted to the hospital in critical condition and was taken immediately to the operating room for life-threatening internal abdominal bleeding. Doctors gave her only a 50% chance to live. Brianna was hospitalized at Grady for 55 days. She was diagnosed with a crushed pelvis; a fractured and dislocated hip; and internal injuries to her intestines in addition to many lacerations. She underwent nineteen (19) surgeries, including removal of 51 inches of her intestine that had been destroyed by the trauma; insertion of plates and pins placed into her pelvis and hip; and surgical repair of her multiple lacerations.

Each young woman could have succumbed to the physical and emotional trauma of that evening, and each would have been justified in becoming bitter and angry. However, when I met them, they simply wanted someone to fight for them.

In the two companion lawsuits that followed, it was a fight that consumed a large chunk of my firm’s time for over three years. Getting to the juries proved to be a monumental task, as we faced discovery abuses from the outset of litigation.

Unbeknownst to us when we first took the case, Avis heavily relies on an “agency operator” model to run most of its non-airport locations (airport locations are operated by Avis). Avis contends these “agency operators” are “independent contractors.” However, as we found out over the course of Adrienne and Brianna’s cases, nothing could be further from the truth. Both juries agreed with our feeling that Avis’ “agency operator” wasn’t worth the paper it was printed on. The evidence reflected that Avis exercised control over operations at its off-airport locations. The evidence of control was so voluminous and persuasive at trial that both juries in our trials made specific findings that the “independent operator” was actually Avis’ employee.

The “agency operator” fiction was created years before we filed suit. Avis started beating that drum immediately in its defense. However, Avis also misrepresented that they had no documents related to the incident other than the police report. Avis also claimed that it had very few documents related to the premises at issue because the operator was “independent.” It was an incredible claim for Avis to make.

Our first motion to compel was denied, largely because Avis and its operator had engineered an evidentiary vacuum by refusing to produce documents related to the incident and denying they existed. Thus, we had to spend several months taking depositions to prove that Avis wasn’t being honest.

The problem with lies is the more people you involve, the harder it is to keep the story straight. We uncovered the lies through a series of fact and 30(b)(6) depositions. We learned that immediately after the incident, Avis’ security managers arrived at the “independent operator’s” location and took over the investigation. They interviewed employees, audited the “independent operator’s” employee files, and worked with the police. They also told the “independent operator” not to talk to anyone about what had happened.

Over the course of several months, we gathered evidence not only that Avis knew about what had happened, but that they generated dozens of emails to Avis corporate and other security managers about the incident. The lies led to an e-discovery order that led to the production of over 250,000 pages of documents.

As our team dug into the emails, we found that within days of the incident, Avis corporate representatives lauded their security managers for “solving the case” for the Atlanta Police Department. One of the men who “solved the case,” was the first Avis 30(b)(6) witness who claimed there weren’t any more documents to be produced about the incident. His name turned out to be all over the emails from Avis’ internal investigation.

Worse yet, Avis had investigated prior thefts from locations operated by the “independent operator.” In one instance in Charlotte, an employee had stolen a car and was later arrested. In another instance, Byron Perry – the same individual alleged to have stolen the car from the Courtland Street Avis that injured Adrienne and Brianna – had been interviewed during an investigation regarding another car stolen at the downtown Atlanta location when Perry purportedly left the keys in the ignition.

As we dug through the emails and deposed witnesses, we found that Avis realized it had increased the risk of car thefts by trying to save costs. Years prior to our incident, Avis had started bundling all of the car keys and fobs on one keychain, which they would give to the renter. Criminals soon got wise to the system and would cut one or more of the keys off the chain and later use that key to steal the car. The problem was compounded by the fact that Avis never used any system – including simple key logs – to track the total number of keys. So, “independent operators” never knew whether a car was vulnerable to theft. Months before Adrienne and Brianna were catastrophically injured, Avis cancelled a “performance excellence” study which was meant to address the key theft problem.

The problem of car key theft was compounded by the fact that the gate keys issued to two of Avis’ salespeople at the Courtland location went missing. Avis’ security manager was notified of this fact via email. During his deposition, the security manager testified that changing the locks would be a “high priority.” However, the Courtland gate locks were never changed.

Eventually we pierced through Defendant’s contentions and were able to get the cases specially set for trial. However, trial has its own set of battles. The first battle is always to get a fair and impartial jury. Voir dire took over eight hours in both cases. I looked for jurors who could follow the Judge’s instructions and who would trust the jury system. It always takes time and sensitivity to have the jurors tell their stories.

At trial, the Defendants stuck to their playbook, arguing vigorously that independent operator model was reasonable and an industry standard. Avis hired an expert who had formerly worked for Hertz. While we had deposed him during discovery, the jury was surprised to hear that the expert was planning to bill an extra $20,000 for his time since the deposition, including trial.

Of course, the expert’s preparation would not help him avoid the truth. I crossed the expert on the use of “independent operators” by “the big three” in the car rental industry – Avis, Hertz, and Enterprise. Enterprise, the biggest company, didn’t use “independent operators,” franchisees, or licensees at all. Hertz was similar:

Q.
. . . Hertz had three to four stand-alone agency operator locations?

A.
Correct.

Q.
. . . And how many locations did Hertz have? 7,000 was it?

A.
Something like that.

The simple fact was that Avis almost exclusively used the “independent operator” model to save money, keeping at least 88% of the profit from a location. But, Avis wasn’t the industry standard.

The “industry standard” argument turned out to hurt Avis because the expert conceded that car thefts, and in particular, thefts by a location’s employees “were a concern in the industry.” The concern arose because the employees “had access to keys and they had access to cars.”

The expert also conceded that his former employer, Hertz, did background checks, driver’s license checks, and criminal background checks on everyone who had access to its cars. Avis chose not to mandate those for the “independent operator.” If Avis or the “independent operator” had done a background check on Byron Perry, they would have easily found that he had no license and was a five-time convicted felon.

Q.
And you agree with me that Byron Perry would not have been hired by Hertz, right?

A.
If he would have checked never been convicted of a crime on the application.

Q.
Well, you’d agree that the decision to hire Byron Perry is something that you rated a zero out of ten, right?

A.
I did.

Q.
And the reasons why you would rate it zero out of ten, in part, is because at the time he was hired, he didn’t have a valid driver’s license, right?

A.
That is correct.

Q.
But in addition to that, he had a significant criminal history, remember?

A.
Yes.

Q.
So, there’s no way Mr. Perry gets hired at Hertz, right?

A.
Probably not.

Q.
And Hertz’s theory is that there’s no reason to take an unnecessary risk by hiring somebody with a criminal background when it’s possible to hire someone who doesn’t have a criminal background, right?

A.
Correct.

The contrast was clear in our case, thanks to Avis’ expert. Hertz chose to do things the right way, even if it meant not making quite as much money. However, the right way keeps people safe.

Q.
. . . [B]y using criminal background checks and driver’s license checks, Hertz can screen out unnecessary risks, right?

A.
I’d say to some degree, yes.

Q.
And screening unnecessary risks helps keep people safe, right?

A.
I mean, I’m sure there’s some link in there, you know, that would occur.

Q.
Right. It’s never a good idea to take unnecessary risks, would you agree?

A.
Correct.

We also elicited from the expert that the “independent operator” in the case had no power when it came to dealing with Avis:

Q.
So, [the “independent operator”] you’d agree, relies exclusively on Avis to operate his business?

A.
From everything I’ve read, yes.

Q.
As a person that’s relying on Avis, he has to be considerate of what Avis wants him to do, right?

A.
Yes.

Q.
If he doesn’t do what Avis wants him to do, Avis can cancel the business relationship, right?

A.
Yes.

Q.
And he walks with nothing, right?

A.
Yes.

At trial, our team juggled mountains of documents and dozens of liability and damages witnesses. At the end, I had the opportunity to ask the jury to respect the losses that Adrienne and Brianna suffered. That required some brutal honesty that was psychologically very difficult. I had to discuss in stark terms what had been taken from these two amazing young women. In a person’s 20s, life should be carefree and fun. A twenty-year-old should be dating and looking forward to their future with hope. However, for Adrienne and Brianna, their twenties had been taken. Their physical and emotional scars served as a constant reminder that their lives had been changed forever.

At the close of the trials, the jury rendered verdicts of $47 million for Adrienne and $7 million for Brianna. Both clients were deeply appreciative of the process and of having the truth come out. Though the process was difficult, the trials reaffirmed my desire to seek the truth in every case. It is the only way for justice to be served. ●

ABOUT THE AUTHOR
Michael L. Neff has been practicing law since 1994. He leads his own law firm, Neff Law, with four attorneys, handling catastrophic personal injury and wrongful death cases. He and his team specialize in premises liability, trucking, and products liability cases. He can be reached at mneff@mlnlaw.com.

PHOTO CREDIT
alexfan32/Shutterstock.com

 

Leave a Reply

Your email address will not be published. Required fields are marked *

*

This site uses Akismet to reduce spam. Learn how your comment data is processed.