Trial Magazine

On the evening of July 5, 2013, Mendy Brockman was traveling home from the airport with her husband, Jason, who was driving their 1994 Honda on Interstate 25 near Castle Rock, Colo. A driver in front of them crossed two traffic lanes to make a U-turn and T-boned the couple’s car on the passenger side where Mendy was sitting, causing the Honda to roll several times before coming to rest upside down in the median. Mendy’s neck was broken, and she suffered paralyzing injuries.

Mendy now suffers from quadriplegia with limited use of her hands and arms. She must use a wheelchair, and the incident impacts her ability to care for her family—particularly her four young children. Because she cannot transfer herself from her bed to her wheelchair without assistance and requires an aide to get dressed, she is absent from her children’s morning routine. While she spends time with her children after they come home from school, her injuries have changed the way she is able to interact with them.

Denver/Fort Collins, Colo., attorney Tom Metier, who represented the Brockmans, explained, “She helps them with their homework, but she can’t reach out and stroke their hair or make them a snack.”

Mendy and Jason sued the other driver for negligence and brought products liability claims against American Honda Motor Co. (design), AGC Flat Glass (windshield), and Takata (restraint system). The Brockmans reached confidential settlements with Honda and AGC before trial, and trial proceeded against the defendant driver and Takata, with Honda and AGC designated as nonparties.

Metier said the biggest challenge was presenting a compelling case to the millennial jury. Six of the seven jurors were in their 20s; while one was pregnant, none had children; and only one juror was married. The attorneys were concerned that the jurors’ limited life experience could prevent them from fully appreciating the life-altering and relationship-changing nature of Mendy’s injuries.

“How do you present this case to a group who has no children?” Metier said. “And how do you talk about the change in marital relationship to a group of people who have no marital relationships? The storytelling had to be different from what we’d do if the jurors were between 40 and 60 years old.”

The products liability theory of the case complicated matters: The plaintiffs would have to ­overcome the jurors’ potential assumption that the safety systems of a car older than they were failed because those systems were too old—and not because they were defective.

Metier constructed his case presentation to address these obstacles. First, he helped the jurors understand the profound effect of Mendy’s injuries on her life by presenting evidence in a manner that would keep the jurors engaged and receptive. And second, he and cocounsel Jim Gilbert of Arvada, Colo., taught the jurors that just because a car was old didn’t mean it was unsafe simply because of its age. Through focus groups, they tested concerns about the vehicle’s age, and they retained experts to opine on how long a car’s safety systems should last.

To convey the severity of Mendy’s injuries and limitations, Metier knew he had to tread carefully. Mendy had an extraordinarily positive attitude about her injuries and her future. Metier said, “There’s a double challenge. One is to—in a very respectful way—lay out what are very difficult private issues for her, and at the same time talk about her role as a mother and a wife and the effects of her injuries and limitations.”

Metier used a day-in-the-life video, combined with witness testimony from Mendy’s daily aide, her husband, and her friends. Because the video included footage of Mendy and her aide, he had the aide testify simultaneously with the video—so the information in her testimony was in a format the jurors could see.

“We had the aide tell stories about those events,” he said. “The jurors saw Mendy going about her daily routine and being in a wheelchair at times when it was extremely difficult. We brought in old friends to tell some stories about Mendy so they could understand how independent she was and compare that to how she is now. I would ask Mendy to demonstrate what she could and couldn’t do, and have her talk about both her fears and her concerns and how these limitations affect her—what’s it like to not be able to fix her daughter’s hair, to not be able to make a cup of coffee for herself.”

Metier highlighted that loss of personal autonomy for the jurors. Mendy always must have an aide or her husband with her. Metier asked the jurors to imagine a life in which they could never be alone. “The idea that they would be trapped in a chair—and not have a moment alone, ever—had a big impact on them because the jurors are all independent folks,” he said.

Metier also anticipated that the jurors might have difficulty finding defective parts in a vehicle that was more than 20 years old. To counteract this, he conducted focus groups to test how the issue might be received and also inquired during voir dire whether any jurors had driven an old car when they were young.

To convey to the jury the idea that just because something was old didn’t mean it wasn’t good, Metier and Gilbert asked witnesses and experts whether they drove old cars. Some experts responded that they drive old cars because they believe the safety systems in older models are in fact safer—and that these safety systems were designed to stay effective far beyond 20 years.

After a two-week trial, the jury awarded $52 million, attributing 50 percent of the fault to the other driver and 50 percent to Honda and AGC. Takata was not found liable. Metier believes that the successful outcome—and the significant verdict—was in part due to his team’s emphasis on the relentlessness of Mendy’s condition.

“One of the things that I’ve tested and become convinced of is that most people do not think more than about 18 months into the future,” Metier explained. “When you need the jurors to look 30, 40, 50 years into the future, you have to present scenes of the future into evidence. That way, the jury can see the long-term effects and be able to compare what that experience should have been like to what it will be like.”

He added, “That is a place that needs to be explored in action with the jury. Words alone won’t create understanding or meaningful damages.”

Citation: Brockman v. Corsentino, No. 2015-CV-32157 (Colo. Dist. Ct. Nov. 18, 2017).