"By whom was it written?"
"Lamouria, Lorenzen, and Parks."
"What is the subject matter?" asked Jake.
"Prevention of tractor rollover using a safety arch."
"Had the authors ever tested such an arch?"
"They had."
"When?"
"1956."
"Was that testing publicized then . . . in 1956?"
"Yes."
"Dr. Stirling," asked Jake, "was this article part of the industry knowledge in 1965?"
"Of course," said Stirling.
"Is it descriptive of the industry knowledge and 'state of the art' prior to 1965, going back to 1956?"
"Yes, it is," answered Stirling.
"And as such, is it part of the information you and other agricultural engineers consult for technical information and rely on in your decisions and design determinations?"
"Yes."
"Your Honor, I offer Exhibit 14 in evidence," said Jake, handing it to Everett Whittemore for examination.
"Mr. Whittemore," Judge Hawthorne looked at him, "any objection other than the continuing objections we have previously discussed?"
"Yes, your Honor," said Whittemore as he stood, "this article is after the design of the tractor and cannot be relevant to design determinations made before it's publication."
Judge Hawthorne paused in thought. "I'm going to let it in. The witness has testified it describes the state of the art in the industry prior to its publication and therefore is relevant to that. Overruled. Exhibit 14 is received."
Jake took the exhibit back to the witness. "Dr. Stirling, although the exhibit certainly speaks for itself," he said, anticipating the next objection, "it has no auditory voice. Would you lend it yours and read the first paragraph?"
Judge Hawthorne smiled.
Walter Stirling read:
"Agricultural engineers in the United States indirectly contribute to more farm deaths than any other agricultural engineering group in the world. A lack of accident awareness by U. S. engineers is most apparent. In no instance does a U. S. tractor manufacturer provide the farmer with a tractor designed to minimize injury in accidents. How can we explain our callous indifference to the hundreds of annual deaths to which we have contributed through inadequate design? Educating tractor operators on the dangers involved is insufficient. Man must be protected from himself! Only when the tractor or other machine approaches a fool-proof state can the engineer consider the design complete."
Jake watched the faces of the jurors as Stirling read. The impact of the opening paragraph of the article was having the desired effect. He wanted the jury to feel the industry was at fault and not allow Cherokee the defense that it should not be blamed for something nobody else did either.
Stirling was good. He was equally good on cross examination. As skilled as Whittemore was and as experienced as he was with all the defenses in tractor cases, Stirling stood his ground. He never wavered in his opinion that the T-350 was defectively designed, hazardous to the operator, and that the defect caused Bobby Pallmeyer's injuries. Finally, Whittemore eased his way out of the cross examination and Jake called his next witness.
Richard V. Norton, Ph.D., was an engineer, a professor at the University of Iowa and a patent historian. He confirmed Stirling's opinions and showed numerous patents for rollbars and seatbelts for automobiles, long preceding the design of the T-350.
"Dr. Norton", asked Jake, "were you in the courtroom when Dr. Stirling testified?"
"I was."
"Did you hear him read from Exhibit 13, the National Safety Data Sheet from 1954 and its description of how front-to-rear rollovers occur in what it described as the 'heavy duty industrial wheel-tractor?"
"I did."
"First, are you, Dr. Norton, familiar with that Safety Data Sheet?"
"Yes, I am."
"And," Jake continued, "are you familiar with the way rollovers occur as described in that exhibit?"
"Yes."
"Is the exhibit accurate?"
"It is."
Are you able to further illustrate what happens?"
"May I use the easel?"
"Your Honor?"
Judge Hawthorne nodded and the witness stepped down from the witness stand and approached an easel with a large writing pad. He lifted the top sheet to reveal a large drawing of the mechanism of a rear tractor wheel. With a slender wooden pointer, he identified the parts of the drawing.
"This whole thing is the wheel. The tire goes around the outside of this. What you see," he addressed the jury and also glanced at the judge, "is the inside mechanism of the wheel. This large ring near the outer edge is the differential ring gear and this smaller gear is the drive-shaft pinion gear which is turned by the power from the tractor engine. When the engine is engaged, this pinion gear turns, turning the larger ring gear and the wheel turns accordingly moving the tractor.
"However," he continued, "if the wheels are stuck, or the tractor cannot move forward for some other reason like a heavy load or one that itself is stuck, this pinion," he pointed to the chart, "walks right around the ring gear taking the body of the tractor with it."
"Can you describe the speed with which this may occur?"
"Once it starts, it happens incredibly fast. The operator doesn't have a chance."
"Objection, your Honor!"
"Overruled."
"Dr. Norton, did you come prepared to illustrate how the rollover occurs?"
"I did."
"You may proceed."
The witness returned to the witness stand and dug in his briefcase. He brought out a small model car about three inches long. He turned to the jury.
"This is what we used to call a friction car when I was a kid and when my kids were little." He held the little red car up so the jurors could see it clearly. "I'm not sure what they call them now, but you can still buy them. This one is a Mustang convertible.
"You will all remember how they work. You just roll it backwards on the floor or some surface and then let it go and it goes forward." He demonstrated on the rail in the front of the witness box and then held it up so everyone could hear the spinning rear wheels.
"Your Honor!' Whittemore was on his feet. "I fail to see how this toy demonstration has any relevance here!"
"I assume there is about to be an explanation." Judge Hawthorne looked to Jake. "I will let him continue for now."
"Dr. Norton," said Jake, "can you use that toy car to demonstrate to the jury how these rollovers occur?"
"Yes, I can. Here, I have one for the judge, one for the defense counsel and a couple more for the jury." He reached into his briefcase and brought several more toy cars. "Here is a yellow corvette for the judge and a blue pick-up truck for the defense counsel."
He worked with the red Mustang. "You will understand the tractor rollovers if you back the car up so the rear wheels get wound up and hold both the car and the wheels with your fingers, then let go of the car but hang on to the wheels, like this." He did and the red Mustang instantly snapped over to the back of his hand.
Jake noticed the Judge doing the same thing with his yellow Corvette.
"Your Honor! Whittemore screamed. "This can't really be expected to demonstrate what will happen to a large tractor with a man on it!"
"Mr. Kingsley?"
"May I inquire further, your Honor?"
"You may."
"Dr. Norton, does what you have just demonstrated fairly and accurately portray the way in which the tractor rollover occurred on July 22, 1990 that injured Bobby Pallmeyer?
"It does."
"And could the jurors do this themselves to more closely observe the demonstration?"
"I believe so. You don't really get it until you hold one of these in your hand and experience what happens. I have models for the jurors to use."
"Your Honor, we ask permission for the witness to allow the jurors to use the friction cars for the demonstration and to receive them in evidence."
"Objecti
on."
"I am going to allow the demonstration and allow the jurors to do it as well. I will receive only one of the toy cars in evidence. Here," he said to the clerk, "Mark my Corvette for identification and record it as received in evidence."
Three other cars were given to the jurors and the courtroom waited and watched as they wound the rear wheels and then let the car bodies go free to slap against the backs of their hands.
The two plaintiff's expert witnesses took the entire day. Judge Hawthorne closed the day's proceedings at 4:35 p.m. That evening, back in the offices of Stratton, McMasters and Hines, Charles and Jake worked on the damages testimony for the next day.
"It will be all right, Sarah," Charles Stanton assured Sarah Pallmeyer on Thursday morning as they sat at the counsel table waiting for Jake. Sarah was nervous. Today was the day Bobby would be in court. She did not like parading her son in front of the people in the courtroom in his condition. She did not want to make a spectacle of him. However, Jake and Professor Stanton had convinced her that it was necessary to impress upon the jury the seriousness of his injuries and to counteract the efforts of defense counsel to keep the tragedy of Bobby's injuries out of the courtroom.
Jake was out in the hall talking to witnesses. Just as he arrived at the counsel table to sit beside Sarah, the bailiff and the judge entered the courtroom.
"All rise!" commanded the bailiff.
Jake began the day's testimony with the plaintiff's economist, the University professor of economics who would supply the calculation of Bobby Pallmeyer's damages throughout his work life and life expectancy and then, using current interest and inflation rates, reduce them to a present value figure for the jury to consider for its award. Using charts and exhibits he had prepared prior to trial, the witness told the jury that the economic loss to Bobby Pallmeyer, not including his pain and suffering or loss of enjoyment of life was $1,850,000 at present value. With pain and suffering Jake would ask for much more.
Following a smooth, thorough cross examination of the economist by Ed Hamilton on behalf of the defense, Jake finished out the morning with the playing of the video tape deposition of Dr. Pickett.
Court adjourned for lunch at 12:15 p.m.
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Meanwhile in St. Joseph, Missouri, Bert Hanson sat in the waiting room of the American Society of Agricultural Engineers (ASAE).
"He will see you now," said the attractive receptionist, replacing a telephone intercom receiver in its cradle. "Please come with me."
Hanson followed her down a short hallway. It was a small office, he noted, with a receptionist, several work stations and some private offices. The furnishings were tasteful and the equipment appeared modern and up to date. The wall coverings and carpet were conservative and also in good taste. The overall appearance of the place gave a good impression, he thought. He had expected something different. Typically, the offices of professional associations or industry trade associations were not so nice. While they might represent large industries or have huge memberships, their offices weren't anything particularly impressive. It didn't take much to send out the dues statement, take care of the officers, and print the monthly newsletter, he thought. Bert remembered that this association was very active in its industry including the formulation and promulgation of industry standards.
The receptionist opened the door at the end of the hallway and ushered Hanson into the small private office. A slightly built man in his late forties with thinning hair adjusted his eyeglasses and smiled at the visitor. He rose to meet Bert Hanson, shaking his outstretched hand and gesturing toward the visitors’ chair.
Two hours later Bert Hanson was escorted to the office's main door, where the two men shook hands, Hanson smiled at the receptionist and left the small office.
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When court resumed after lunch, Jake called Jeanne Albright to testify.
"What is your occupation," he asked her.
"I am a Registered Nurse. I am in charge of the day nurses shift at Greysolon Health Care Facility in Duluth.'
"Is Robert Pallmeyer one of your patients?"
"Yes, he is," she answered politely. "Bobby's been with us for almost three years."
"Did you assist us in making a video tape of a typical day in Mr. Pallmeyer's life at the Greysolon facility?" asked Jake.
"I did."
"Have you reviewed the tape?"
"I have."
"Can you narrate the tape and explain it to the jury as we play it?"
"Yes, I can do that."
"Ms. Albright, does the video tape fairly and accurately portray a typical day in Robert Pallmeyer's life as he lives it today?"
"It does that," she responded, "like every day he'll spend for the rest of his life."
"Objection, your Honor."
"Sustained" said Judge Hawthorne, "Mr. Kingsley, I don't believe this witness has been qualified to give such an opinion."
"I understand, your honor."
"Ladies and gentlemen of the jury," the judge turned toward them, "you have already been instructed some regarding opinion testimony and expert witnesses. Because this witness has not been qualified as an expert for this particular opinion, she is not allowed to give it and you are instructed to disregard it. Now, that having been said, Mr. Kingsley, you may play the tape."
Lights in the courtroom were dimmed as the jury watched the twenty-five minute video tape. When it was done and the lights were restored, Jake addressed the witness.
"Have you brought Mr. Pallmeyer with you today?" he asked, looking at the jury.
"Yes," the witness nodded toward the door, "he is outside the courtroom." Every juror glanced toward the courtroom door.
"Bring him in, please," said Jake.
Jeanne Albright looked at Judge Hawthorne, who nodded. She left the witness stand and walked to the rear of the courtroom. She opened the door and was gone for only a moment. She returned with Bobby Pallmeyer in a wheelchair being pushed by his attendant.
Sarah Pallmeyer turned in her seat to watch as her son was wheeled into the courtroom. A tear formed in the corner of her left eye. She reached in her purse for a tissue.
Bobby Pallmeyer looked much the same as he had when Jake and Charles first visited him, except his hair was combed and it looked like someone had gone to some extra effort to make him presentable. His left arm hung limp at his side, his hand in his lap. His right forearm and hand rested on the tray of the wheelchair. He stared straight ahead as he was wheeled past the rail and up to the jury.
Jake had the witness remain with Bobby in front of the jury. In response to his questions, she showed the jury what Bobby Pallmeyer could do, what his reactions were, and what he could not do. The demonstration lasted thirty minutes.
Great, thought Jake. She is showing the jury what is most important, that Bobby Pallmeyer knows. He understands his situation. Jake sometimes wished it were otherwise and that he did not understand, but his job was let the jury know the truth and to persuade them to compensate accordingly.
When the demonstration was over, Ed Hamilton did the cross. He kept it very short, since there wasn't much he could do and the longer the examination went, the longer Bobby Pallmeyer sat there in front of the jury.
The next morning, Bert Hanson caught the early flight to Minneapolis, but this time he did not travel alone. The slightly built man who was the executive director of the American Society of Agricultural Engineers was traveling with him.
CHAPTER TWENTY-SIX
That same Friday morning, the trial began with the testimony of Dick Ellington as part of Plaintiff's case-in-chief.
"Your honor, Plaintiff calls Mr. Richard Ellington of Cherokee Tractor & Implement Company for cross examination under the rules," announced Jake, standing at counsel table.
Everett Whittemore leaned over the rail behind the counsel tables to speak softly to Dick Ellington. El
lington nodded. He walked to the aisle, opened the gate and stepped into the well of the courtroom, walking to the standing clerk, raising his right hand.
When the witness had been sworn and taken his seat in the witness box, Jake began his cross examination.
"Mr. Ellington," said Jake, "please tell the jury your relationship with the Defendant Cherokee Tractor & Implement Company."
"I am Vice-President, Research & Development," answered Ellington.
"And how long have you held that position?"
"Well," said the witness, "I've been head of R & D for over thirty-five years, but I've been a vice-president of the company for about twenty years."
Jake asked Ellington about his personal background, his education and training and his duties at Cherokee, including the function of the "R & D" section. Eventually the questioning turned to the operator's manual for the Cherokee T-350 farm tractor.
"Mr. Ellington," Jake began, "showing you what has been received in evidence as Plaintiff's Exhibit 22, I would like to review the 'Safety Suggestions' on page 18. Would you turn to that page, please sir?"
Ellington opened the red booklet. "Yes, I have it." He looked up at Jake.
"Now then, Mr. Ellington, in these twenty-three 'Safety Suggestions,' in how many places are there provisions that apply to the work that Northland Builders' crew was doing when Bobby Pallmeyer was running the tractor in this case?"
"Well, there are several," said the witness looking at the book.
"Mr. Ellington, isn't it true that there are only two places on that page 18 entitled 'Safety Suggestions' that apply here . . . Number 14 and the cautionary paragraph at the bottom of the page?"
"No, that is not true," Ellington said confidently. "That is certainly not true."
"Please explain your testimony, sir" demanded Jake, glancing at the jury box.
"Well, almost all of these numbered suggestions apply. So do the warning paragraphs that aren't numbered," said Dick Ellington. He went on. "See, here is Number 8: 'Only one person - the operator - should be permitted on tractor when tractor is in motion.' And Number 12: 'Do not drive too close to the edge of a ditch or creek.' Another one, Number 14: 'When tractor is hitched to a stump or other heavy loads, always hitch to drawbar and never take up slack in chain with a jerk.'"
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