In February 2014, after more than four and a half years of litigation and a three-week jury trial, a jury in Chittenden County, Vermont (Burlington) returned the second highest jury verdict in the history of that state. The jury awarded approximately $22.5 million dollars to our clients, Michael and Tracey Hemond. Since that verdict, lawyers and clients have asked for more details about the case, how we reached the point of trial and obtained such an extraordinary result. This article is an attempt to tell, at least part of, that story.
The story of the Hemond case is really three stories in one: the first, and perhaps most important, is the story of two amazing people, Michael and Tracey Hemond. The second story is of a major corporation that ignored safety risks and failed to take any responsibility for its conduct. The third story is of the tireless energy, investment of money and resources, and an unwavering commitment to our clients at Berman & Simmons. Without that commitment and a team approach by the entire firm, we could not have overcome the odds that seemed, at times, insurmountable.
In the summer of 2009, my partner, John Sedgewick, and I traveled to Burlington to meet Mike and Tracey for the first time. Berman & Simmons had been contacted to evaluate this case, after other lawyers declined to pursue it because they thought it was unwinnable. Mike had been working as an electrical utility lineman in September 2006, when he was badly injured at an electrical substation in northern Vermont while opening a switch on a high-voltage power line. At the time Mike opened the switch, there was too much electrical current running through the line for the switch to handle. Electricity jumped through the air and into a vertical operating pipe that ran down the utility pole into a metal cabinet near where Mike was standing. Mike’s left elbow struck the cabinet, and electricity coursed through his body, narrowly missing his heart, burning off the skin along one flank and charring both of his feet and legs. Ultimately, Mike required amputations of both legs. The incident was devastating to Mike and Tracey, their family, and their community. He was known as a hard-working family man, an avid outdoorsman, and youth sports coach.
At the time Mike opened the switch, the cabinet and the switching equipment he was handling were not grounded. Calculations showed that if the switch had been properly grounded, Mike would not have been injured. This created an enormous problem. Mike’s employer clearly was negligent for failing to ground the switch. In fact, OSHA and other laws required that the switch be grounded. However, we could not bring a claim against Mike’s employer, because in Vermont (as in most states), an employer enjoys immunity from lawsuits if the employer provides workers’ compensation benefits (as the employer did here). To make matters worse, we anticipated that any defendant would argue that Mike, as an experienced electrical lineman, should have recognized the lack of grounding before opening the switch. If one knew where to look, the fact that the switch was not grounded was obvious. Finally, there was the timing. By the time we met with Mike and Tracey, only about three months remained on the statute of limitations. If we were going to move forward, we had to move fast.
In August of 2009, just a couple months after meeting Mike and Tracey, we filed a lawsuit naming six defendants: the manufacturer and wholesale seller of the switch; two electrical engineering firms involved in the design of the electrical system and selection of the switch; the largest transmission utility company in Vermont; and a distribution utility company that owned and operated the system at the time that the switch was selected. Our claims against the manufacturer and wholesaler were based on strict product liability. Our claim against the transmission company was that it made decisions in the way it operated the electrical grid, which caused an excess of power to be re-directed to the power line with the switch. Finally, our claims against the engineering firms and the distribution utility were based upon negligence in the design and construction of the substation and selection of the switch.
From the outset, we recognized the defendants would try to shift the blame to Mike and his employer. We approached discovery with deliberate strategies to deal with these issues. First, we came up with a strategy to turn Mike’s failure to inspect the switch from a weakness into a strength, by developing evidence that neither Mike nor any of his fellow linemen had been trained to check for grounding. Second, with respect to Mike’s employer, we built a strategy based upon Vermont law, which (unlike Maine and most other states) does not recognize joint-tortfeasor contribution claims. As a practical matter, this meant that the jury would not be allowed to apportion fault to Mike’s employer on the verdict form. The defendants would still be permitted to blame Mike’s employer, but only through an affirmative defense of supervening or intervening cause. The jury would be faced with an “all or nothing” decision—either Mike’s employer had all the fault and any other defendant would be off the hook, or Mike’s employer would have no responsibility for any verdict. From the beginning, therefore, we developed the evidence with an eye toward defeating an anticipated summary judgment motion on supervening cause, and litigating that issue at trial.
For our first deposition, we made the strategic choice to depose the critical fact witness involved in designing, selecting and installing the switch. We believed that we could lock in testimony and admissions from this critical witness before the lawyers for the defendants really understood the case. This turned out to be correct, and the testimony of this first witness became crucial later in motion practice and at trial. In all, the discovery phase of this case was extremely protracted, lasting more than four years and including depositions of approximately 30 witnesses. However, looking back, we were able to achieve many of our discovery goals by the time we had completed the deposition of the very first witness.
After about two years, we mediated the case and settled with five of the six defendants for a confidential sum. The only defendant remaining was the distribution utility company that owned and operated the business when the substation was constructed. That company was Frontier Communications of America, which is one of the nation’s largest telephone companies. Before 2004, Frontier owned power companies in several states, including an electrical utility company in northern Vermont called Citizens’ Utilities. In spring of 2004, Frontier sold Citizens. Mike had worked for Citizens before the sale, and he continued to work for the utility company that purchased Citizens after the sale. The accident occurred in September 2006, more than two and a half years after Frontier sold the business.
Frontier filed a motion for summary judgment, claiming it was entitled immunity under the workers’ compensation laws, because Frontier was Mike’s employer at the time of its alleged negligence. The trial court denied the motion for summary judgment, but the Vermont Supreme Court granted a motion for interlocutory appeal. I appeared before the Vermont Supreme Court to argue the appeal. Our argument was simple: only the employer on the date of injury is entitled to workers’ compensation immunity, because only that employer provides workers’ compensation benefits. The Vermont Supreme Court agreed, and issued a unanimous decision affirming the trial court’s denial of summary judgment and remanding the case for trial.
On remand, Frontier filed a second motion for summary judgment. This time, Frontier argued that it could not be liable, as a matter of law, because it did not own or operate the utility company on the date of the accident. Frontier argued that the failure on the part of the new owner (Mike’s employer at the time of the injuries) to ground the switch constituted a new and unforeseeable act of negligence that cut off any responsibility on the part of Frontier. In other words, Frontier was pointing to a “supervening/intervening” cause. Fortunately, we had anticipated this motion from the beginning, and had developed a factual record that gave us the upper hand. Sure enough, the trial court denied this second motion for summary judgment and set the case for trial.
We began preparing the case for trial long before we picked the jury. For starters, we held two full-day focus groups more than a year apart at a hotel in downtown Burlington. Each focus group involved presentations of both sides of the case and deliberations by two focus-group juries. Each of the focus group juries found for the defense. But what we learned through the focus groups was critical to planning our strategy for trial. First, we learned that most jurors thought Frontier had some blame for what had happened to Mike, but those same jurors were hesitant to find against Frontier because they felt that more of the responsibility fell on Mike’s employer. In a sense, they thought it was unfair to make Frontier pay out millions of dollars in damages for something that was largely another company’s fault. Second, the jurors believed that Mike would already be receiving workers’ compensation benefits, so that anything awarded in this case would be a windfall. Third, we learned that jurors did not blame Mike for failing to identify the lack of grounding once they learned that Mike was not trained to inspect for grounding.
What we learned through these focus groups helped form the core of our trial strategy. Because we understood that the role of Mike’s employer was going to be the central struggle, we confronted that issue head-on. In voir dire, I told the prospective jurors that they were going to face a difficult issue in this case—namely, that not all of the companies who had responsibility for what happened to Mike were before them at trial. I explained that the issue in the case was not whether Frontier was the only party responsible, but whether Frontier had some share of responsibility for what happened. I explained that if they found for Mike and Tracey, the law required the jury to award full compensation, and would not be allowed to reduce or apportion damages based upon the conduct of parties who were not in the courtroom. I questioned each potential juror individually about whether the absence of other responsible parties would make it too hard to serve on the jury. Each juror made an individual commitment that he or she could make these difficult decisions and follow the law. In closing, I returned to this issue when I discussed the jury instructions, and I reminded the jurors of the promises they had made during voir dire.
With respect to the workers’ compensation issue, we likewise decided to confront the issue head-on, rather than permitting the jury to speculate about the existence of workers’ compensation benefits. I filed a motion in limine to admit evidence of the workers’ compensation benefits, and, not surprisingly, the defense agreed. This allowed me in voir dire to explain to the jury that Mike had received workers’ compensation benefits, but the law required that the jury not consider that issue when determining damages. One of the jurors asked a question about double recovery, and the judge stepped in to assure the jurors that there was “a system in place” to prevent double recovery. With that, the workers’ compensation benefits became a non-issue.
In both opening and closing, we asked the jury to award damages in the range of $20–$24 million dollars. The trial lasted for three weeks and the jury deliberated for approximately seven hours. The jury returned a verdict of $22,497,000.
This case took four and a half years to resolve with a significant amount of time and other resources, none of which could have been done without the support and hard work of Berman & Simmons’ attorneys and staff including my partner, John Sedgewick, my staff, Diane Bourgoin and Laura Copp, and attorneys Alicia Curtis and Timothy Kenlan, as well as attorneys John Evers and Michael Green of Shoup Evers & Green in Burlington, Vermont and their staff, Jennifer Metzger and Lori Baker.