So, in arriving at an agreed jury, Harris and I asked endless questions about preconceived notions about the parties and the industry, about philosophies that they hold that would make it hard for them to be fair to our respective clients, and about anything, other than the evidence and the law that they are about to hear, that will influence their verdict in our case. It is a system that I have endless faith in, and it is a system that works because most people take the obligation to serve as a conscientious juror very seriously.
Kevin Walters sits next to me at the counsel table. Michael Constantine is here for opening statements and sits next to Bob Harris. As we begin the second day of this trial, the court reporter occupies space between us and the judge.
“Please stand,” the bailiff instructs, and everyone in the packed courtroom does. “Department 39 of the Superior Court for the County of Los Angeles is now in session, the Honorable Roy Carswell presiding.”
Carswell enters from chambers and walks to the bench. He glances at his computer, then to each of the parties at the counsel tables. Seeing that we are all in our assigned places, Judge Carswell looks over at the jury. “Ladies and gentlemen, you are about to hear opening statements in this case. The opening statements of the parties are not evidence, but they are the opportunities of both parties to tell you what they believe the evidence will show you.” He looks at me. “Mr. Winslow, are you ready to proceed?”
“Yes, Your Honor.” I stand and move to the open area next to the witness stand, from which I can look directly at the jurors and move around as I speak. “May it please the court, counsel, ladies and gentlemen of the jury. As you know, I am Scott Winslow, and I represent Mr. Walters. Good morning to each of you, and congratulations on having made it through the jury selection process.” I become more serious and say, “You have been told that this is a whistle-blower case. Let me tell you more about what the evidence will show you. Kevin Walters served the defendant, Consolidated Energy, for in excess of twenty-seven years. He worked his way up through the ranks to become a senior vice president, reporting directly to Michael Constantine, the president and CEO. He successfully performed in that role for the last seven years of his twenty-seven-year career.
“You will hear from a number of witnesses that Mr. Walters was good at his job and that he cared greatly about the company. He also cared about protecting the safety of the employees who worked in the mines. You will see that Kevin had eight different positions during his career, six of which involved mine safety, and he was vigilant about watching out for safety issues and protecting workers. During his years in all of these positions, he received compliments, commendations, salary increases, and bonuses. He also received seven promotions and continued to move up in the organization, all the way up to senior vice president, reporting directly to the president and CEO, Michael Constantine.”
I let that settle for a moment and then continued. “In 2015 and 2016, Kevin raised concerns about a number of safety issues in a mine, including S&S conditions. S&S are conditions that pose an immediate threat of serious injury or illness to workers. The conditions he complained about include serious ventilation issues, inadequate safety equipment, failing substructure, and inadequate tunnel maintenance. Those are conditions that seriously threatened the safety of workers. Mr. Walters's demand for action to correct some of these conditions was overruled by Mr. Constantine, who thought that it would cost too much. Some of these same issues that Mr. Walters raised became S&S violations, for which the company was cited. Then there was an explosion that killed one and injured three, and Mr. Walters was fired for making complaints about safety conditions that the company did not want to hear.
“You will hear Mr. Walters testify about each of the specific issues he raised concerns about. You will hear other managers testify that they are aware that Mr. Walters was concerned about and raised these issues. And you will hear Mr. Constantine tell you that he doesn't remember whether Mr. Walters raised those issues. And you, ladies and gentlemen, are the judges of who is providing more credible information.
“A couple of important things you should know. The company is going to try to tell you that Mr. Walters's performance in the last year was the reason he was fired. Question that long and hard because the evidence will show you otherwise. Mr. Walters received an energy association award three months before his termination. The energy association award was presented to him by Mr. Constantine in front of many other energy industry companies and employees. Some of them will be here to tell you what they heard. At the time of that award, Mr. Constantine told the crowd that Mr. Walters did great work and that Consolidated was lucky to have him. This was three months before he was fired, purportedly for poor performance over the last twelve months.
“Two months before he was terminated, Mr. Constantine complimented Mr. Walters on his work. That happened in front of some of his colleagues. Two of them will appear to tell you what they heard.
“You will also learn that the company gave bonuses based on performance and that Mr. Walters received a big bonus shortly before his termination. His performance-based bonus was larger than that received by Mr. Clayton or Mr. Peters, the two executives of equal rank to Mr. Walters, and, of course, they were not fired or disciplined. In fact, each of them considered their bonuses to be a reflection of good performance.
“We told you at the outset that you are to decide this case based upon the facts presented to you and the instructions of law you receive from the court. The other thing that you can use and that you are not required to leave at the door is your common sense. When you hear the company say that Mr. Walters was fired for unsatisfactory performance during the last year, your common sense will tell you otherwise.
“But this is only part of the story. We are seeking punitive damages in this case because the company acted with fraud and malice. They acted to endanger, rather than protect, employees, and then they acted to cover it up. You will learn that one of the director-level executives at Consolidated hired a covert operations organization to force the county representatives to alter the records to eliminate violations of record where the explosion occurred. The person hired by the company then blackmailed the county manager responsible for keeping the county records. He was threatened with the ruination of his career based on false accusations if he didn't alter records. They gave the county employee a choice of going to jail based on false charges they had created or altering records for Consolidated Energy and receiving $50,000 to retire far away. You will hear deposition testimony from that county employee about all of this. You will hear that the records were changed by the county employee as Consolidated required because he was blackmailed by the third party—the third party that Consolidated Energy hired to get the records changed. And you know what else? This won't be denied by Consolidated Energy. They are going to tell you that this happened. Then they are going to tell you when they found out who did it, they fired this executive.”
The jurors seem fully captivated and appropriately shocked. They all watch me, awaiting what comes next. “We say to you that they ultimately sacrificed one executive, but that makes no difference. The company acted to endanger its workers in order to save money. The company fired Mr. Walters for demanding action to correct problems. The company then hired someone to force the county to change the records to cover up the fact that they failed to make corrections of known conditions. One worker died and others were injured as a result of the conditions that they did not want to spend money to correct.”
I walk a little while this information settles, and then I look back at the jury. “The cover-up came about because of a culture that allowed dangerous conditions to exist if they were expensive to correct. That one person was fired doesn't change what they did. That doesn't change what they didn't do—failing to promptly correct life-threatening conditions. And it doesn't change anything for Mr. Walters, a twenty-seven-year executive with an incredible track record who wanted nothing more than to protect the safety of the company
workers whose service he valued.”
I look at the jury and see that I still have them enrapt. Harris and Constantine can see, too. Twelve sets of eyes are glued on me. “When you dedicate twenty-seven years to a company, your self-image and self-worth comes from the work that you do. It's part of your identity that you have done so well with this company. It was part of Mr. Walters's identity that he spent his career trying to protect workers in dangerous occupations. And on a single day, all of that was taken from Mr. Walters. We are going to ask you to award him damages for the anxiety, humiliation, depression, and emotional injury he has suffered as a result of the loss of his career.
“He has also suffered significant and ongoing financial losses that should never have happened. You will hear the testimony of Dr. Graham Johnston, an economist who will compute those total economic losses for you.
“Finally, we will ask you for punitive damages in an amount sufficient to punish Consolidated Energy for their malicious and fraudulent conduct. They fired an admittedly dedicated, career-long employee for attempting to protect workers. We believe that you will find this conduct to be malice. They attempted to cover up their knowledge of serious safety violations that they elected not to fix. Why? Money. Money valued over human life. We think you will find that this lack of regard for human life and lack of regard for those attempting to protect human life is malice.
“This case is about accountability for corporate behavior that endangered the lives of workers. When you operate a business that is inherently dangerous, you have a responsibility to employees to protect them in every possible way. When that responsibility is disregarded, and the danger is ignored to save money, and when they then attempt to cover up what they have done, they need to be held accountable. And you are the only ones who can hold them accountable. We will ask you for punitive damages in an amount that sends a strong message to the company that none of this conduct is okay, and they will not get away with sacrificing worker safety—that which should be their first and foremost consideration.
“Thank you for your attention this morning, ladies and gentlemen. And thank you for the careful consideration that I know you will give the evidence in this matter. I look forward to having the opportunity to speak with you again after you have heard all of the evidence and before the matter is given to you by the court for a fair and appropriate verdict.”
On the way back to my seat, I look at Lisa, who sits in the back of the courtroom. She gives me a nod and a smile. I glance at Bob Harris, who looks appropriately concerned. When I sit down, Kevin pats me on the shoulder and whispers, “Thank you.”
We take our noon recess, and Lee is waiting at the door of the courtroom to talk to me. “Hi, Lee. Do we have a problem with one of our witnesses?”
He grins. “No, to the contrary. I received a message that Carl Miller will make himself available to testify if you want him here in person.”
I look at him curiously. “He will get arrested if he shows up here.”
Lee nods. “Yep. He doesn't care. I think it is some combination of wanting to stand up against the people who forced him out of his career and wanting to assist us because we helped him when he was in trouble.”
“Wow,” I say, “that's incredible. I don't want to call him unless we really have to though. He's a good guy, and I don't want him to wake up in jail when this is all over. Get a message to him that we really appreciate what he is doing, but we won't call him unless it is an emergency.”
“Shall do,” Lee says. “By the way, I got all of the witness subpoenas served. I gave Donna the signed agreements from each to come when they are called rather than sitting here for a week or two. I think all is in order.” He pauses and adds. “Great opening, by the way. Jurors were going with you.”
“Thanks, Lee. You have been unbelievable through all of this. I owe you so much.”
“No way,” he says. “Just friends being friends.”
As Lee walks away, Bob Harris comes over to me. He says, “We need to talk. I have some additional authority to get the case settled.”
“Sure,” I say. “Let's take a walk down the hall.”
As I walk down the courthouse corridor with Harris until we are away from jurors, I am content. I don't know if we will be able to settle this case, but either way, it will be fine. I will give my faith to this jury. Even if Kevin does not settle or win this action, he is starting his safety monitoring company, Protective Environmental Services, for the benefit of the mining industry. I suspect that a settlement or verdict in this case will assist him in getting the business going, and I can't think of anyone who deserves it more.
As for me, I have my family back. Joey is healthy, getting good grades, and playing baseball with no residual from his months of coma. Katy is in charge of, well, everything. And Lisa is gorgeous and brilliant and still the girl of my dreams. And I am doing what I love.
We stop at the end of the hall. “So,” Harris says, “here's what we are prepared to do …”
About the Author
David P. Warren is an experienced trial attorney, advocate, and negotiator with many years of experience focusing on employment litigation. He has handled numerous cases through trial and appeal and represented many whistle-blowers. That experience placed him at the center of litigation focused on proving that employees were fired for raising concerns about safety issues or because they reported fraudulent or unlawful conduct of their employers.
David draws on his extensive experience to bring you The Whistle-Blower Onslaught, the story of an energy industry executive alleging he was fired for complaining of uncorrected conditions in coal mines, which resulted in disaster, and the perils resulting from the lawsuit that follows. David P. Warren has written two previous novels, Altering Destiny and Sealing Fate.
David P. Warren has a passion for storytelling and for characters with human frailties that face situations and obstacles beyond their control. His novels present characters you will feel you know, as you accompany them through fast-paced journeys with many unforeseen surprises.
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[2017] The Whistleblower Onslaught Page 36
