Beating Goliath Episode 3: Justice at Last

Transcript

Patrick Salvi Jr.: I never want to be in front of a jury trying to trick a witness into giving an answer. And even if I do, they’re going to see through that. It’s not effective. It’s not persuasive.

Aaron: I was actually sitting holding Tom’s fiancee, Crystal’s hand at the time, and got the verdict. And everyone started getting very emotional.

Thomas: One of the mantras I kind of lived through throughout this whole thing was pain is inevitable, suffering is optional. You only get one chance to go through this.

Marcie: From the Chicagoland law firm of Salvi, Schostok & Pritchard, this is “Beating Goliath: A Plaintiff’s Pursuit of Justice.” I’m your host, Marcie Mangan. Case number one, part three, Tom Neuhengen.

In the previous episode, we followed Tom’s lawsuit and subsequent trial after a life-changing accident he sustained when his foot was crushed by an industrial forklift at work. During the trial, the defense had not only tried to downplay Tom’s injury stating that it was just a foot, but they had also tried to convince the jury that Tom was to blame for his accident, that he had somehow put himself in harm’s way. Patrick Salvi Junior and the rest of the team at Salvi, Schostok & Pritchard had fought hard for three things, for the jury to recognize the severity of Tom’s injury, to absolve Tom from any blame for what had happened to him, and most importantly, to recognize that the company had acted in a willful and wanton way, that there was a history of a disregard for safety that had led to Tom being hurt. If the jury agreed with Patrick on the last issue, then they would award punitive damages, as well as compensation for Tom’s injuries. The amount of compensation would depend on just how devastating the jury felt Tom’s injury was. Trial by jury is a system of law that Patrick Salvi Junior believes in deeply.

Patrick Salvi Jr.: The jury system is one where the collective wisdom of 12 people is really special. And what I mean by that is you may have people of different backgrounds and different experiences in their lives, and they can share with one another their wisdom if things are being taken out of context. So where the jury and its collective wisdom comes into play is understanding the difference between lawyer tricks and truth. I never want to be in front of a jury trying to trick a witness into giving an answer. And even if I do, they’re going to see through that. It’s not effective. It’s not persuasive.

Marcie: But, of course, when you’re waiting for 12 people to digest all the evidence they have heard, consider all of the witness depositions, and come to a decision, it can take time. And often, it’s a long time. In Tom’s case, the decision came in after two long days.

Patrick Salvi Sr.: When you get that call that we have a verdict, it’s pretty intense. It’s a pretty cool experience in life. Certainly, the most exhilarating moments I’ve had is listening to a verdict being read, and not knowing what the outcome is going to be and so much at stake.

Patrick Salvi Jr.: I didn’t know what the verdict would be, I didn’t know if we were going to have contributory negligence. So contributory negligence is when the defense argues that the plaintiff is negligent. And if the plaintiff is greater than 50% negligent, then the defense wins. So, in other words, if you say, yeah, we were negligent, but the plaintiff was more negligent and you’re able to prove that to the jury, then the defense wins. If the plaintiff is say 20% negligent, well, then whatever the damages amount it’s reduced by that 20%.

Woman: We, the jury, find for Thomas Neuhengen, and against Global Experience Specialist, Inc., and Frederick Neirinckx and assess the damages on count one, negligence, in the sum of $12,228,068.

Patrick Salvi Jr.: And the jury found that he was not, gave him 0%. I was very, very pleased with that. That was perhaps my primary objective in the case. I didn’t want that verdict to indicate that Tom was in any way, shape, or form responsible for his own injuries, and we accomplished that. And I was happy about that.

Marcie: But, of course, this case wasn’t just about proving that Tom was not to blame. Had Patrick and the team also been able to make the jury understand that the defense, GES, was guilty of willful and wanton behavior by repeatedly not ensuring that their forklift operators were trained and certified?

Patrick Salvi Jr.: And the jury said that they were, they did act with a reckless indifference. And then finally, it’s the damages. And so since we won on both of those counts, we proved that Tom had no contributory negligence. We proved that GES was willful and wanton. And so then the jury was able to take a look at, well, what was Tom’s damages and what are Tom’s damages going forward? And so that number was $12.2 million, the compensatory damages. The jury said, your injuries, the pain and suffering, the past and future medical bills, the past and future lost wages, the loss of a normal life, the disfigurement that you’ve experienced, all of that, and they broke it down line item by line item, but it totaled up to $12.2 million.

Marcie: When it came to calculating the punitive damages, a number of factors are considered, like the net worth of the company and the fact that GES already had previous citations from OSHA, the Occupational Safety and Health Administration.

Judge 1: We, the jury, find for Thomas Neuhengen and against Global Experience Specialist, Inc. on the following count, count three, punitive damages, Global Experience Specialist, Inc., yes, $3 million, plaintiff’s total damages, $15, 228,068. Was the conduct of the defendant, Global Experience Specialist, Inc., as alleged in count three willful and wanton? Yes. If yes, did the conduct of the defendant, Global Experience Specialist, Inc., as alleged in count three, proximately caused injury to the plaintiff, Thomas Neuhengen? Yes.

Patrick Salvi Jr.: And I thought that was a strong message to say, hey look, you have now three times in the last eight years been cited by OSHA for not having certified operators, so we’re gonna punish you. And we’re gonna punish you to the tune of $3 million because you got to change your ways. And if we don’t hit you in the pocketbook, you’re not gonna learn. And that was a strong statement by the jury.

Aaron: It’s very gratifying, and it makes you feel like, you know, there is justice in the world. There is right, it’s out there, that it can be achieved and it’s not easy. You gotta fight for it. But there it is, it’s there.

Marcie: Of course, the rest of the team, including Aaron Boeder, were thrilled with the verdict.

Aaron: I was actually sitting holding Tom’s fiancee, Crystal’s hand at the time, got the verdict. And it was a just verdict and everyone started getting very emotional. We cared so much. And they really validated all of our hard work and validated what Tom had gone through. I mean, these are people that couldn’t get married because Tom didn’t wanna like have to wear messed-up shoes at his wedding. It was 12 jurors saying your life matters, and what happened to you matters. And it mattered 2 years ago, it’s gonna matter 20, 30, 40 years into the future.

Marcie: And it goes without saying that for the man who all of this was for, the man whose life had been changed forever, Tom Neuhengen, it was a huge relief.

Thomas: I mean, it felt good. It felt good that it was finally done, the judgment was made. When it came through, I was very excited, I was happy. And we actually even…so afterwards, the jury members are allowed to come over and talk to you and will not… I remember even one of the jury members coming up to me and saying, you know, “We tried to even give you more.” And I’m like, “No, no, this is plenty.” I was surprised.

Marcie: But sometimes in the law, the verdict doesn’t mark the end of the fight. And in Tom’s case, the journey to justice was not yet over. After a verdict, the judgment is formalized by the court, and then at that stage, either party may file what is called a post-trial motion. These motions can include a number of things, like a request for a new trial, a request to quash the judgment, or as what happened here, a request to amend parts of the judgment. Around six months after the trial had ended, the judge made a decision that really shocked Patrick Salvi Junior

Judge 2: The plaintiff has failed to demonstrate any nexus between the willful and wanton conduct alleged against GES and plaintiff’s injuries and no verdict in his favor on count three, punitive damages, could ever stand. Accordingly, judgment for the defendant on count three is granted notwithstanding the jury’s verdict.

Patrick Salvi Jr.: And so the decision wiped out the $3 million punitive damages award. And the decision essentially said that we did not prove that the allegedly willful and wanton misconduct was a cause of Tom’s injury. And the basis for that was essentially that Fred Neirinckx was so experienced that training and certification wouldn’t have made a difference. And so, as a matter of law, this is a case of mere negligence. And I was surprised. I was surprised.

Marcie: You would imagine that a decision like this would be a huge blow for Tom. It had already been three and a half years since his accident. He had been through seven surgeries, thousands of hours of physical therapy, months of preparation for the trial, the trial itself, and then the verdict, but Tom’s philosophical and he had faith in the process of the law.

Thomas: Once Pat and them kind of explained to me how the whole appeals process works, all things considered, I understand why it exists. I mean, if let’s say for some crazy reason, we were completely in the wrong, the judge was in the wrong and a lot of things they did and everything fled our way because we cheated to a point, you know what I mean, then the appeals process makes sense because I don’t deserve that. I don’t deserve that money if we cheated and got the verdict the way that we wanted. So it makes sense why it exists and why it’s there. It just made sense. I mean, it sucks because it takes forever. So, I mean, it’s nervous, it’s frustrating to a point, but at the same time, it makes sense.

Marcie: Once the judge had ruled that the punitive damages were to be removed, there were, of course, options, accept the verdict minus the $3 million in punitive damages, negotiate with the defense or appeal the verdict. As Patrick Salvi Senior explains, the alternative agreement was out of the question for the defense.

Patrick Salvi Sr.: They just didn’t want to compromise, they just felt like they were gonna win it on the appellate process. And Tom was…he’d follow our advice and he was very patient. He trusted us.

Marcie: For Patrick Salvi Junior, there was never a question in his mind that the team should appeal. And it simply was not about the money.

Patrick Salvi Jr.: We knew we had to appeal that aspect of the post-judgment ruling by the judge that tried this case because that represented the punishment for their behavior, that represented the deterrence for GES and others similarly situated, those that are in the same line of business, that you can’t just go about the work like that. You can’t just put profits over safety. You need to have OSHA certifications checked. You need to make sure your forklift operators know what they’re doing. Otherwise, there’s gonna be more Tom Neuhengens. So, in essence, Tom was not just in this for him, he was in this for others too. And sure, $3 million is not an insignificant amount of money, but this was something that we wanted to ensure lasted. That there was a lasting impact here.

Marcie: The next stage in the journey to justice involved a very different legal process, an appellate court. When trial lawyers have cases that then shift to a totally different type of courtroom, collaborations with attorneys who have a different skillset is not uncommon.

Bob: My name is Bob Black, and I’m the owner and sole practitioner at Law Offices of Robert G. Black.

Patrick Salvi Jr.: Bob black is really an exceptional appellate lawyer. And we’ve worked together on a number of cases in the appeals court. He’s been really a great beacon of knowledge when it comes to navigating the appellate process, which is truly its own world. You need to have great experience to navigate it at the highest level.

Bob: When these guys call upon me to assist them when the thing goes up on appeal, what a smart decision that is for the benefit of their client because it is a completely different arena. I mean, these guys have tremendous skills as trial lawyers, but the skillset here for the appeals is different. It’s more heavily based upon writing. And I’m consuming in terms of block time to have to read these records.

Marcie: As Bob Black explains, a case in an appellate court doesn’t go before a jury, but in front of a panel of three justices. No new evidence is submitted and there are no witnesses who need to appear. Instead, the two sides have to present the existing evidence and testimonies to the justices and explain why they believe the judgment reached was either wrong or right. It’s an incredibly time-consuming process.

Bob: There’s three components to the record on appeal. First is everything that’s in the court file. Second is everything that’s in the transcripts. So, if there’s a trial, there’s trial transcripts. If there’s been a hearing of some kind, there’s the transcripts of the hearing. And third, exhibits. And those are all put together by the clerk’s office and they’re all certified and paginated, and we tell the story based upon what’s in that record. And everything that is said in that story has to refer back to some page within that record and cite to a page within that record,

Marcie: Just like the team at Salvi, Schostok & Pritchard, Bob Black recognized Tom’s case wasn’t just about getting him the compensation he deserved, but about making positive changes in the safety of the industry.

Bob: There was a lot of evidence put in about all the OSHA violations and all the other safety violations that occurred here that was evidence of the defendant company’s lax attitude here that showed their indifference to safety precautions and the safety of the plaintiff. It’s both a punishment and a warning not to be doing this, to be engaging in this type of behavior before that’s beyond negligence.

Marcie: After six long months, the verdict was out.

Bob: They tell us what day it’s coming out and will be available on the internet, and then we just kinda keep refreshing the page waiting to see it. First thing that I do is turn to the back page so I can see the result. It’s very hard to do anything else or to concentrate in anything else. And then your heart’s pounding as you’re trying to open this up and get to that back page.

Judge 3: After considering the evidence in the light most favorable to plaintiff, we cannot say that the evidence so overwhelmingly favored GES that no contrary verdict could ever stand. The evidence presented at trial and the rational inferences to be drawn from them sufficiently set forth all the elements required to establish that GES’s failure to have a process to ensure all forklift operators were certified and trained, its deliberate actions in ignoring this failure after two previous violations in the same regard, and its failure to ensure that Neirinckx was trained in the operation of the Versa-Lift proximately caused plaintiff’s injury. We cannot say that there was a total failure or lack of evidence to prove any necessary element, and we do not find that there was a lack of evidence of proximate cause. Accordingly, we conclude that the JNOV was incorrectly granted. We reverse the entry of JNOV on count three and reinstate the jury’s verdict and punitive damages.

Marcie: And after years of preparation, trial, and appeal, it was the result Patrick Salvi Junior and the team had worked so hard for.

Patrick Salvi Jr.: We were successful. We reinstated the punitive damages and the compensatory award remained in place. And so, the verdict was reinstated. And so to come out on the other end successful was really special because the jury spoke in such a way that it really validated our feelings and Tom’s credibility, and the seriousness of Tom’s injury, and the misdeeds of the defendants. And it’s not that, well, he was in the army, and so he deserves this. No, it’s because this is the truth. This is absolutely the truth.

Bob: Not only to get a great result for Tom in terms of affirming his verdict, but also reinstating the punitive damages, I mean, it couldn’t have been better obviously. And so just phenomenal feeling here. Phenomenal. The few times that I met him, he was just a straightforward, standup guy. He was just a real positive man, and I really liked him.

Marcie: In one final attempt to avoid paying Tom when he deserved, the defense tried to take the case even higher. Here’s Patrick Salvi Senior.

Patrick Salvi Sr.: In Illinois, you don’t just get an automatic appeal to the Illinois Supreme Court. You have to ask for leave to file to have the Supreme Court hear the case and they denied it. So that meant that they had exhausted all remedies. They had nowhere else to go. And in Illinois, a judgment receives a 9% interest. So given the number of years that Tom had waited for the verdict, he actually ended up collecting just under $20 million.

Marcie: So the team at Salvi, Schostok & Pritchard had managed to secure an even bigger settlement for Tom because they trusted in the process of the law and knew they could achieve justice. The fight was finally over. Getting your client the compensation they deserve can, of course, never reverse the trauma they have experienced, but at least it ensures they can see a future in which they don’t have to feel fearful about providing for their families, as Aaron Boeder explains.

Aaron: Because we always tell our clients, we can’t, you know, necessarily wave a magic wand and fix you, but at least financial strain will not be a consideration, at least you can get the therapy you want when you have a significant amount of money, like, obviously, Tom ended up with. And he’s got peace of mind. He knows that he and his family will be protected and taken care of. And knowing Tom, I know he’s going to work forever, he doesn’t need to though. That’s just how he is though.

Thomas: I’m trying not to change who I am. I know it might sound corny or whatever, but I’m trying to still try to…I still have the same job. I didn’t leave my job. I’m still in the guard. I hit 20 years in January. I’m still going to military school. So, you kind of plan for the worst and hope for the best, try focus on either life, try to hang out, and obviously, spend time with my family, and try and take care of my family as much as I can.

Patrick Salvi Jr.: And he put his trust in us to fight for him and negotiate for him. And it was a long process, much longer than any of us wanted ultimately. It took many, many years to finally get justice for Tom. Even though we beat them at every step along the way, we put our whole team on it and obviously, we won the day.

Marcie: As Tom now moves on with his life, he also can carry a sense of pride that his case could help make workplaces across America safer.

Thomas: I learned later on as well in talking with Pat and everything, we create a lot of legal precedents in this case. So, I’m hoping that this also will kinda help other law firms and other teams to make sure that, yeah, if someone’s doing something wrong, that they pay the price for it.

Marcie: The bond that is created between an attorney and a client isn’t necessarily always going to be long-lasting, but in the case of Tom Neuhengen and Patrick Salvi Junior, their friendship remains.

Thomas: I can’t say enough good things. Pat and I went to dinner one time, we hung out and talked. And every time I went down to Chicago for something, we usually try to meet up. But yeah, I can’t say enough good things. I do consider them friends. I do consider…I couldn’t have done any of this without them. And I can’t even imagine my life now without them being around or even talking over even…I can’t imagine any of this without them.

Marcie: It’s also a friendship that carries a lifelong promise.

Patrick Salvi Jr.: We have a bet. I’m a Bears fan, he’s a Packers fan. Naturally, he’s from Wisconsin. I’m from the Chicagoland area. And so, as great of friends as we are, we’re rivals when it comes to the NFL and who we cheer for. And so we have a bet and it’s this, the next time the Packers go to the Super Bowl, we both go on me. And the next time the Bears go to the Super Bowl, we both go on Tom. So, last year, the Packers almost made it. They went to the NFC Championship, but one of these days, Tom and I will both be at a Super Bowl together.

Marcie: Special thanks to Tom Neuhengen and all the experts and attorneys who took the time to talk to us. Thank you as well to our production team at Lemonpie. “Beating Goliath” was written and produced by Sam Walker, editing and sound design by Eric Sirianni, and executive producers are Katie Bush and Erik Jacobson. To find out more, head to salvilaw.com/podcast. I’m your host, Marcie Mangan. Thank you for listening.