"Well, just a minute, Mr. Ellington," Jake began, "you don't mean . . ."
"Objection, your Honor!" Whittemore was on his feet. "Counsel is interrupting the witness. He has the right to finish his answer."
"Sustained." said Judge Hawthorne. "Let him finish his answer, Mr. Kingsley." To the witness, he said, "You may go ahead."
Feeling a small victory had just occurred, Ellington felt more confident. He straightened up in the witness chair and continued.
"These are well written suggestions which, if followed, will prevent accidents . . . will prevent tragedy. They clearly state how the tractor is to be used. The unnumbered paragraphs specifically repeat the warning against improperly hitched loads and point out the consequences." He read from the manual, repeating the quote which Whittemore had used so effectively with Plaintiff's witnesses:
"UNDER NO CIRCUMSTANCES SHOULD ANYTHING BE PULLED FROM THE LIFT SHAFT OR BE HOOKED TO ANY PART OF THE TRACTOR EXCEPT THE DRAWBAR. FOR HEAVY LOADS DRAWBAR MUST BE IN LOWEST POSITION."
Ellington also read two unnumbered paragraphs on the page that preceded the twenty-three numbered suggestions:
"Many hours of lost time and much suffering is caused by the failure to practice simple safety rules.
"IT IS TOO LATE TO REMEMBER WHAT SHOULD HAVE BEEN DONE AFTER THE ACCIDENT HAS HAPPENED."
"You see," said Ellington, looking up from the page he was reading and speaking directly to the jury, "the operator of the Cherokee T-350 is given adequate instructions for its safe operation and told why those instructions are to be followed."
"Of course," said Jake, they are not called 'instructions' are they Mr. Ellington? They are labeled simply 'suggestions', isn't that true?"
Ellington smiled at the jury and shook his head. "Well, if you want to argue semantic issues like that, we will be here all month."
Jake did not like the way this cross-examination was going. The points important to Plaintiff's case were being made, but it didn't sound like it. He didn't want to appear to be losing to this witness. Just the look on the faces of the defense lawyers showed they thought they were winning this battle. He had to take a chance.
"Well, where does it say that if you don't hitch the load to the drawbar, the tractor will flip over backwards and kill you?" Jake pointed to the open manual in front of the witness.
Screams came from defense counsel table. Both Whittemore and Ed Hamilton were on their feet. "Objection, your Honor!" The two assistants looked properly appalled at the question.
"Your Honor," pleaded Ed Hamilton, "may we approach the bench?"
"Counsel, come forward," said Judge Hawthorne.
The lawyers gathered on the side of the bench away from the jury and engaged in animated huddled conference with his Honor.
"Jake," said the judge in a low voice out of the hearing of the jury, "I think they have a point here. If it doesn't say what you are asking about, then the exhibit speaks for itself. Your point may be for final argument, but your question to this witness is argumentative, even for cross examination."
"Your Honor, I will withdraw the question," said Jake. The judge nodded and counsel returned to their seats.
"Mr. Ellington, you have been here in the courtroom throughout the trial so far have you not?" asked Jake.
"I have."
"And you heard the testimony on Wednesday by Dr. Norton and Mr. Stirling, the engineer, did you?"
"I did," said Ellington, adding, "for what it was worth."
"What?" said Jake.
"I didn't think it was worth much," said Ellington, looking at the jury.
"Didn't you have discussions in your Research & Development section about the same problems those experts testified to?"
"Certainly not."
"And isn't it true Mr. Ellington, that you and other Cherokee engineers were well aware of these rollover problems with the Cherokee T-350, long before you heard those experts testify on Wednesday?"
"Absolutely not," said Ellington. He continued, "It's not the first time I've heard some 'hired gun,' as you lawyers call them, make those claims, but they're not true."
"So it is your testimony, under oath, that Cherokee did not know of the propensity of this type of tractor to roll over from front to rear endangering the operator?" asked Jake.
"We still don't know that," said Ellington. "I don't think it's true."
"Didn't you have discussions regarding this problem at Cherokee before the tractor involved in this case was built in 1965?"
"Certainly not."
Jake carried a document to the clerk's table, placing it before her for marking. She placed a gummed label on the front of the document, wrote the exhibit reference on it and signed it.
"Plaintiff's Exhibit 40 has been marked," she reported to the judge.
"Now then, Mr. Ellington," Jake placed the exhibit on the counter in front of the witness, "I will show what has been marked for identification as Plaintiff's Exhibit 40 and ask you if you have ever seen it before."
Ellington examined the document which consisted of five pages. He took quite a while, reading large portions of its contents and studying the last page.
"Nope," he said finally.
"Do you recognize the name of the author?"
"Sure do, I knew him well."
"Do you agree that this report is part of the books and records of Cherokee Tractor & Implement Company?" asked Jake.
"Objection!" Whittemore yelled.
"Nope," said the witness.
"Your Honor, may we see the exhibit?" asked Whittemore.
"I told you," said the witness, "I have never seen that before."
"Just a minute," interrupted Judge Hawthorne, "we have an objection pending. Mr. Kingsley, will you show the exhibit to counsel?"
Jake handed the document to Everett Whittemore. He and Hamilton bent over it scrutinizing each page. When they were finished, Whittemore stood to address the court.
"Your Honor," he said, "we object to this exhibit. May we approach the bench to voice our objection?"
"Let's do it in chambers," said the judge. He stood, stepped down from the bench and left the courtroom. Jake, Charles Stanton and the four defense lawyers followed.
In his chambers, seated behind his big desk, Judge Hawthorne said, "Okay, what have we got?"
"Judge," began Whittemore, "this document was never identified in discovery. We have never seen it before."
"It's their document, Judge," said Jake.
"What!?" Judge Hawthorne looked at Whittemore. "Let me see it."
Whittemore handed him the exhibit.
"Looks like Defendant's document all right," he said. "What's going on?"
"That's just it, Judge," said Whittemore, succeeding in putting on an exasperated look, "we have never seen it. It was not produced in discovery. It was not on Plaintiff's exhibit list. Our witness just testified it is not part of the Defendant's records and he has never seen it. For Plaintiff to manufacture this document and try to sneak it into this trial is devious and unethical!"
"Hold on a minute . . ." started Jake.
"Easy, Gentlemen," said Judge Hawthorne. "Jake, why wasn't this identified in discovery?"
"Your Honor, we are conducting a continuing investigation in this matter. That report just came to my attention, yesterday. But of course it should have been produced by Defendant in discovery!" He stared back at Whittemore.
"Your Honor!" screamed Whittemore, the sound of his voice filling the single room of the judge's chambers. "I will not sit and listen to these accusations . . ."
"I said 'Easy, Gentlemen,' I don't want personalities and accusations to be involved here. Mr. Whittemore, I understand you object to the introduction of this exhibit?"
"We do, your Honor."
"Well I don't recall it was offered, yet. Was it?"
"Not yet, your Honor, but we intend to offer it," said Jake.
"Considering the content, I am sure you do," said the judge, "but at this point you have not
laid a sufficient foundation for it. This witness can't identify it. Do you have this . . . ," he looked at the last page of the document, ". . . Robert England, who wrote it?"
"No your Honor, he died about twenty years ago," answered Jake.
"Well, you may be in trouble," said Judge Hawthorne.
The judge thought for a moment. "As to the objection to this exhibit on the basis of surprise, I am going to overrule that objection." Looking at Whittemore and Hamilton, he said, "I am going to overrule your objection on that ground, but your objection on any other grounds is preserved at this time even though plaintiff has not actually offered the exhibit yet. It is not a surprise because if it is authentic, it is your document and cannot be a surprise. On the other hand, before it will be received in evidence, a proper foundation must be laid establishing its authenticity and that has not occurred yet. I assume, Mr. Whittemore that you also object to no foundation?"
"We do, your Honor. Thank you."
The Judge continued. "Mr. Kingsley, I caution you to be very careful with this exhibit. If the jury finds out what it is while you are trying to lay a foundation for it and it does not ultimately get received, you will have a mistrial, understood?"
"I understand, your Honor," said Jake.
"All right," said the judge, handing Jake the England report, "Let's get back to work."
Whittemore shot Jake a smug victory look as they left the judge's chambers.
What an asshole, thought Jake. Of course maybe he's right. If I don't get lucky, the report won't get in. He'll sure do everything to keep it out, and maybe he'll succeed. Jake shook his head, then put on a confident air as he entered the courtroom and walked past the jury.
"Ladies and gentlemen," said Judge Hawthorne when he had resumed his seat at the bench, "we have just taken care of some matters in chambers and we are ready to proceed with testimony, but in light of the hour, I think we will break for lunch at this time. I assume Mr. Kingsley, that you have some more questions for this witness?"
"Just a few, your Honor," said Jake, "but it would be helpful to me if we would break at this time."
"All right, we will resume Mr. Ellington's cross examination at one-thirty."
Jake, Charles Stanton and Sarah Pallmeyer had lunch in the cafeteria in the basement of the Government Center.
"Damn!" said Charles. "I wish we had gotten that report in!"
"Well, we knew when Bert found it we would have trouble unless defendant admitted it. It wasn't in the records they produced for inspection, so it's not likely they would acknowledge it now."
"What happens if you can't get the judge to admit it?" asked Sarah.
"Nothing, really," answered Jake. "It's just that if we can get it in, it's dynamite; it's a smoking gun, as they say."
"It sure is," agreed Charles. "It shows they knew about the problem way back then and chose to ignore it. It also smells of a cover-up." His face grew excited and behind his glasses, his eyes widened.
"What is the matter?" asked Jake.
"Look who's here," said Charles, smiling broadly.
Jake turned around in his seat to see Bert Hanson leading a slightly built man with glasses and thinning hair toward their table.
"Jake," said Bert Hanson, "here is a witness you have got to meet. Jake Kingsley, this is Roger Winthrop."
Back in the courtroom, Judge Hawthorne began the afternoon’s proceedings, saying, "Mr. Kingsley, you may continue your cross examination."
"Only a few more questions, your Honor," said Jake, walking toward the witness.
"Mr. Ellington, I'll show what has been marked as Plaintiff's Exhibit 41. I will represent to you sir, that this is a copy of an annual report called a Form 10-K which Cherokee Tractor & Implement Company filed with The United States Securities and Exchange Commission as it is required to do each year. Looking at the statement of profit for 1992, and as one of the company's vice presidents, do you recognize that as being the profit reported for last year?"
Ellington studied the document. The top page bore the title of the Securities and Exchange Commission. On the left side, two holes were punched through the pages through which a blue ribbon was passed and tied. Over the knot, was a gold metallic label bearing the seal of the Commission.
"I'm not sure," said Ellington, "but it looks like it."
"What is the amount of profit shown by Cherokee for 1992?"
"Objection, your Honor!" shouted Everett Whittemore. "No foundation."
"Well," said Judge Hawthorne, "I am inclined to agree. Mr. Kingsley?"
"Your Honor, I think I can withdraw the question and rephrase after offering the exhibit," said Jake. "Your Honor, the exhibit is a certified copy of a record of the United States Securities and Exchange Commission. As such it is admissible on its own as a certified copy of a public record." He handed the exhibit to Everett Whittemore. "Plaintiff offers Exhibit 41, your Honor," he said.
"Mr. Whittemore?"
"Judge, we still object to the exhibit," responded Whittemore. "It still lacks foundation. There is no indication that this document and whatever it says about profit in 1992 is relevant to this case now."
"Let me see the exhibit." Judge Hawthorne motioned to Jake who carried it to the bench. The judge examined it.
"There is a claim for punitive damages here, correct?" he asked.
"That's right, your Honor," said Jake. "You granted our motion to amend for that purpose."
"Well, it is relevant to that claim. It is a certified copy of a public record admissible under Rule 1005 of the Rules of Evidence," he said, and turning toward the defense table, he said, "Overruled. Exhibit 41 will be received."
"Now then, Mr. Ellington," continued Jake, "looking at what has now been received in evidence as Plaintiff's Exhibit 41, what is the amount of profit reported by Cherokee Tractor & Implement Company for the year, 1992?"
"Thirty-two Million Dollars."
"No further questions, your Honor," said Jake returning to his seat.
"Cross examination?" asked the judge.
Everett Whittemore stood. "Your Honor, we will reserve our examination of Mr. Ellington until Defendant's case-in-chief."
"Very well. Do you have any more witnesses, Mr. Kingsley?"
"We do, your Honor," said Jake. "Plaintiff calls Mr. Roger Winthrop."
"Objection, your Honor," said Everett Whittemore, "may we approach?"
At the bench, Whittemore complained that the witness was not on any witness lists or disclosed in discovery and was therefore a surprise witness. Jake pointed out that Winthrop's name had been listed in Plaintiff's Answers to Interrogatories as a person with material knowledge. He was not on the final witness list because they did not know where he was until this week. The judge ruled that Winthrop could testify.
Roger Winthrop took the witness stand. Jake began his direct examination.
"Mr. Winthrop, will you tell the jury what you do?"
"I am an agricultural engineer by training. I am the Executive Director of ASAE, the American Society of Agricultural Engineers. The offices are in 'St. Joe,' Missouri."
"Showing you what has been marked for identification as Plaintiff's Exhibit 40, can you identify that document?"
"I can."
There was a stir at Defendant's counsel table. Judge Hawthorne watched Jake and the witness very closely.
"Mr. Winthrop," said Jake, eyeing Judge Hawthorne, "without talking about the content of the document, can you tell us what it is?"
"Sure," said Winthrop, "it is an engineer's report by my old boss, Robert England."
"Had you ever seen it before this trial?"
"Sure. He showed it to me when I worked for him."
"When was that?" asked Jake, still eyeing the judge.
"In the mid-sixties and early seventies," the witness replied.
"To your knowledge, was this report ever communicated by Mr. England to the Cherokee Tractor & Implement Company?"
"It was."
"How do you know that
?" Jake looked directly at Judge Hawthorne, who held eye contact, waiting for the answer.
"He told me."
"Objection!" Whittemore jumped to his feet.
"Sustained." ruled Judge Hawthorne, still holding eye contact with Jake.
"Is there any other way you know?"
"I helped Bob when he put several copies in the company's internal mail system. We sent it through channels."
"And," began Jake hesitantly, "was this report part of the books and records of Cherokee Tractor & Development Company?"
"Sure it was," said Winthrop, adding, "It still is, unless someone has destroyed it."
"Objection, your Honor!" screamed Whittemore.
"Overruled," said the judge.
"Your Honor, we offer Plaintiff's Exhibit 40," said Jake.
"May I assume you have the same objections counsel?" he looked at Whittemore and Hamilton.
""We do, your Honor."
"Objection overruled, Plaintiff's Exhibit 40 is received."
"Mr. Winthrop," Jake asked, "in what year was the report written?"
"1964." said the witness, looking at Exhibit 40.
"Your Honor, may I show it to the jury?" asked Jake.
"You may," said the judge, whereupon Jake carried the precious exhibit to the jury box handing it to the first juror, Cynthia Duchien.
As the jury studied the England report, Jake said, "Your Honor those are all the questions I have."
"Cross examination?"
"Not at this time, your Honor," said Whittemore, "if the witness will be here we will reserve our examination of him until later.'
The judge looked at Winthrop, who nodded assent. He was very interested in this trial and decided to stay to observe.
"All right, your next witness, Mr. Kingsley?"
The Ultimate Resolution Page 30
