Transcript of Koehler Closing Argument by The Stritmatter Firm

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

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IN AND FOR THE COUNTY OF KING ----------------------------------------------------------------

RIDE THE DUCKS SEPTEMBER 24, 2015

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No. 15-2-28905-5 SEA

AURORA BRIDGE COLLISION

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[Consolidated]

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MORNING SESSION

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CLOSING ARGUMENT

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VERBATIM TRANSCRIPT OF PROCEEDINGS

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Heard before the Honorable Judge Catherine Shaffer, at King County

Courthouse, 516 Third Avenue, Room W-829, Seattle, Washington

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DATE:

1-24-19

REPORTED BY: Kevin Moll, RMR, CRR, CCP Kevin Moll, RMR, CRR, CCP King County Courthouse, Rm. C-203, (206) 477-1584 Seattle, WA 98104

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APPEARANCES OF COUNSEL:

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KAREN KOEHLER, ANDREW N. ACKLEY, MELANIE NGUYEN, and

ANTHONY MARSH, representing the plaintiffs;

SCOTT C. WAKEFIELD, DAN R. KIRKPATRICK, JOHN SNYDER, and

TYLER HERMSEN, representing the defendant Ride the Ducks

International;

PATRICIA K. BUCHANAN, D. JACK GUTHRIE, and NICK CARLSON,

representing the defendant Ride the Ducks of Seattle;

STEVE PUZ, PATRICIA D. TODD, and RICHARD FRASER III, representing

the defendant State of Washington;

TAD SEDER and VANESSA LEE, representing the defendant City of

Seattle.

14 15 16 17 18 19 20 21 22 23 24 25 Kevin Moll, RMR, CRR, CCP King County Courthouse, Rm. C-203, (206) 477-1584 Seattle, WA 98104

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Seattle, Washington; Thursday, January 24, 2019

MORNING SESSION - 9:00 A.M.

--oOo--

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(Jury in) THE COURT:

Be seated, everybody.

getting a little bit adjusted here.

ahead and be seated.

Thank you, folks.

We're just Number one, go

Thanks so much.

There we go.

We're good, Andrew.

Thank you.

All right, ladies and gentlemen, we are ready to

move forward on instructions and closing argument, and

before we get into this I want to give you a little bit

of a preview of what we're going to be doing.

You each have a three-hole punched copy of the

concluding instructions.

Andrew didn't try to stuff them into your already

stuffed notebook.

out or put them in, it's going to be up to you.

did want you to have your own copy of the instructions

to look at it, if you'd like to, either now or later.

They're pretty fast, so

Whether you choose to take things But we

When I'm reading the instructions to you, as of the

beginning instructions, you can read along with me or

you can just listen while I'm reading instructions to

you.

have your own copy of the instructions with you, so you

can refer to them if you'd like to.

And then later, in deliberations, you'll each

KEVIN MOLL, CSR

I suspect you

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probably will want to refer to them. I also want to talk to you about what's going to

happen after I have read the instructions to you.

We're going to take our normal morning break whenever

that time is.

read all these instructions to you.

come back we're going to begin with the plaintiffs'

closing argument, which is expected to be long, and

we're not clear on exactly how long.

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We think it's going to take a while to And then when you

We have a general

idea. What we're going to do is let the plaintiff move

forward with closing until the lunch hour, and then I'm

going to double-check with the attorneys.

If it looks as though the best use of our time today

is going to be to take a shortened lunch hour, we might

do that, so it might be today is 12:00 to 1:00 or 12:00

to 1:15 for lunch.

had a chance to chat at the end of the morning, because

we'll have a better sense of how far the plaintiff has

gotten in completing her opening closing argument.

We'll let you know as soon as we've

After today, we will be breaking promptly at 4:00,

because at least one of you needs to leave at 4:00.

Tomorrow we'll return for whatever remains of the

plaintiff's open closing argument and for the

defendants closing argument and for the plaintiffs' KEVIN MOLL, CSR

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rebuttal closing argument.

Plaintiffs have the burden of proof in this case, so

they are going to be allowed to address you twice, once

in opening closing, once again in rebuttal.

During the time that you're listening to attorneys

give you closing arguments, you're going to be welcome

to take notes if you want to, just as you were allowed

to take notes during opening statements.

But I need to remind you, again, everything the

lawyers say isn't evidence.

evidence, their assertions aren't evidence, their

opening statements weren't evidence, their closings

aren't evidence.

arguments, make sure you designate in your notes where

the actual evidence stopped and where the closing

arguments began.

Their questions aren't

So if you do take notes on closing

I wanted to basically give you this short preview.

It is possible we might have a similar schedule

tomorrow, that we might have a shortened lunch hour

tomorrow, but it's too early to predict, so I'll just

keep you informed about what our schedule looks like as

we go.

later than the close of business tomorrow.

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But our objective is to get you this case no

All right, folks, go ahead and turn your attention now, if you would, to the instructions. KEVIN MOLL, CSR

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I'm going to

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begin by reading you instruction number one.

(Instructions read, not reported; recess;

jury in)

THE COURT:

Ladies and gentlemen, you're about to

hear the plaintiffs' closing argument.

will get together and make sure that everybody gets a

corrected set of the instructions so that you don't

have to manually make those changes.

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Mr. Ulmer and I

Please give your attention now to Ms. Koehler on behalf of all plaintiffs in closing argument. (Plaintiffs' closing argument) MS. KOEHLER:

Good morning, ladies and gentlemen of

the jury, your Honor, Counsel, and to all of the

plaintiffs who are watching remotely today.

So we are operating in tandem here, and we apologize

if we are not as smooth as Steven Spielberg.

music, and as I've been listening to the same song,

over and over again, the lyrics are, "You know my

name," and that's very appropriate in this case, where

we have 40 some people whose names we've tried to

remember and whose names we hope that you will never

forget, because as much as this case is about what

happened on September 24, 2015, and the entities who

are responsible for that, it is these 40 some all

people whose names we want you to remember years from KEVIN MOLL, CSR

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I love

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now. There's only one place in the verdict -- in the jury

instructions where you will see all their names, and

that's in the mortality tables.

that you see here will not go back with you.

seen them many times.

today on behalf of these people.

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You've

But please know that I speak

"If I could turn back time."

If we could turn back

time, well, I am not a great poet, but I did change

some of Cher's lyrics.

before we begin.

Many of these charts

I do want to leave them to you

If we could turn back time, if we could find a way,

we'd take back the carelessness that changed all your

days.

did, we don't know why they risked the things they

could have fixed.

that cut deep inside, the vehicle like a weapon, it

wounded and killed this time.

We don't know why they ignored the things they

Their negligence was like a knife

They didn't really mean to hurt you.

They didn't

want to see you die.

We know they made you cry, but

yet if we could turn back time so we could find a way.

Maybe they'd do the right thing and you would be alive.

If we could reach the stars, we'd give them all to you.

Then you'd be back to where you were before, if we

could turn back time. KEVIN MOLL, CSR

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The recall notice that was issued on this case on

May 4th, 2017, too late to do anything.

recall notice had been issued before, we could have

turned back the time.

Transportation Safety Administration had known and been

able to issue its order, if we could only have turned

back time.

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If only that

If only the National Highway

November 15, 2016, too late.

If only Yuta Masumoto

hadn't had the injury that he suffered, that we'll talk

about in more detail.

got on the bus that day.

skipped coming to Seattle on her dream trip with her

husband, Gunter.

who lived here who they wanted to see.

Dinh hadn't gone to North Seattle College.

Yunsu Kim hadn't come with her entire family to see

some of her children, you know their names.

if only, if only, if only, if only we could turn back

time.

If only Mazda Hutapea had not If only Fenna Zielinski had

If only the Gesners didn't have a son If only Phuong If only

If only,

If we could turn back time to September 24, 2015,

you wouldn't be here today, Claudia Derschmidt and Ha

Ram Kim would not have lost their lives, the fire

department wouldn't have had to respond, people

wouldn't have had to be exposed.

mass transit disaster that Seattle has ever seen KEVIN MOLL, CSR

This was the biggest

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involving its own roadways.

You have seen so many images because they are all

different and involve different people and different

moments in time.

only the Duck hadn't been going across the bridge the

same time as the bus.

only an axle hadn't fractured and a wheel come off a

bus.

The set of facts of this case.

If only it hadn't happened.

If only, if only we could turn back time.

If only Donald Clouse had been a super hero and been

able to act and maybe levitate the bus.

driver of the Duck could have driven a vehicle that

couldn't be driven.

If only the

If only we could turn back time.

The absolute horror of watching this unfold, if only

there had been a barrier, just a median barrier,

32 inches tall, not even as tall as this, just a

regular median barrier, because, as you can see, the

Duck wasn't pushing ahead on at some 90-degree angle.

15 degrees, it would have glanced off of it.

If only the State and City had gotten their act

together, stopped trying to push this decision off on

one or the other and put in a zipper barrier, which, as

you can see, has yellow lines right on it, right on the

barrier.

If only this axle hadn't failed, and not because of

an accident, because what we're talking about here are KEVIN MOLL, CSR

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the missed opportunities, the missed opportunity to

prevent the Duck from colliding with the bus due to the

lack of median barrier, the lost opportunity relating

to these axles failing.

reason.

happened.

An accident happens for no

There are so many reasons why this tragedy

If these students hadn't gotten on the bus that day,

Min Kang and Seohee Bak, if they had woken up that

morning and they decided, no, we don't want to go on

this trip -- they didn't realize that every step they

took brought them closer to what was going to happen.

If only they had sat in different seats, with

respect to the people on the Ducks.

If only they had

not gotten on Duck six, if they hadn't missed Duck

eight and been on that one instead.

As they went across the freeway -- the highway, I

should say, we are were told to look at the window and

take pictures.

staying put and sitting straight and holding on tight,

maybe they wouldn't have been ejected.

If only they had been focusing on

If only once they looked at that vehicle and seen

that there were no restraints to keep them in, it was

just an open vehicle with a canopy, maybe they would

have not gone on there.

If only Eric Phillips -- Fisher -- I forgot one KEVIN MOLL, CSR

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name, it's not my client -- if only Mr. Bishop had not

been driving that day, maybe he'd have been a little

bit less animated, maybe he would have heard something,

like Ms. Chido.

If only Sonoko Hiraoka hadn't sat where she sat.

only Ms. Gerke hadn't stepped up those last steps.

only they hadn't gotten on that Duck they'd be like

this today, such as they were, they would be just as

they were, as they should have been.

If If

If only.

If only Ride the Ducks of Seattle had done their

job, done something, done anything.

If only when Mr.

Bishop had examined the vehicle he had been with the

mechanic who had already looked at it more carefully

because of Ms. Chido's concerns.

Chido called the Duck's office on the 20th and said:

There's something terribly wrong with this vehicle, it

made the hair on the back of my neck stand up straight,

I pulled it over, I don't want to drive it anymore,

it's not safe, if only they had sent out mechanics for

longer than two minutes to look at it, two minutes.

If only when Ms.

If only when she brought it back after completing

the tours that day, four tours, the mechanics, instead

of saying, "You don't even know what you're talking

about, and if it's not broken, we can't fix it," if

only she hadn't crossed out the concern because of KEVIN MOLL, CSR

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embarrassment, or trying to please mechanics who didn't

notice that anything was wrong, because she couldn't

explain it well enough.

at Seattle Ride The Ducks who didn't expect a brand new

captain to know what was wrong with the vehicle, and if

they said there was something wrong, so wrong it makes

the hair stand up on the back of my neck, that they

would pull everything off that Duck and look

underneath, where she said the sound was coming from,

If only there were mechanics

and figure something out, if only that had happened.

If only they didn't send Duck six out that day.

only when Duck six hit the bridge that summer not once,

not twice, but three times, three times it hit a

bridge -- I don't care if you kiss the bridge, when you

hit a bridge, don't you look at it?

If only when -- if you were in an accident that

involved some kind of damage to the vehicle, some kind

of hit to the vehicle, some kind of vibration to the

vehicle, that you would look at the component parts to

make sure it was okay, take the time, even if it is a

hassle, even if it is a hassle, to pull off this,

frankly, ridiculous rubber boot that you've been living

with, whether it makes sense or not, knowing that it's

hiding mechanical components of your vehicle.

If only Ducks hadn't had staffing problems. KEVIN MOLL, CSR

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If only

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the shop foreman four months before this didn't write

-- with respect to maintenance issues -- "Hadn't had a

chance to really think too much, just react."

that wasn't the culture at Ride the Ducks Seattle:

it's not broke, we can't fix it.

it to break.

only this happened in the off season, when they took

the vehicle apart, instead of the end of the tourist

season.

If only If

We have to wait for

We have to wait till the off season.

If only Mr. Tracey, who really didn't know anything

about anything other than publicity, I think, how to

make his company well known, hiring it out for the --

whatever the parade for -- oh, yeah, Seahawks, sorry.

No -- yes, Seahawks.

more about the company, but instead he delegated.

only he had delegated the people that maybe knew

something about maintenance or mechanics.

he had listened to the people that he did hire in

maintenance and mechanics.

If only he had known a little bit If

And if only

If only Ride the Ducks Seattle had spent more on,

for example, having more than one functioning jack.

only they had been concerned when the mechanics, quote,

unquote, were going to mutiny.

If only they realized or should have realized that

they were operating ancient vehicles, Mad Max vehicles, KEVIN MOLL, CSR

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vehicles put together from other parts and they knew

it.

maintenance department.

If only they had paid more attention to their

If only when the person that was hired to run the

maintenance department had been listened to and

respected by management when he told them that there

were not enough mechanics and things were going to

break, when he told them if something went wrong and

someone died, his neck was going to be on the line,

when he forecast exactly what happened here and was not

listened to, if only we could have turned back the

time.

If you're going to hire a head of a maintenance

department and not listen to them, maybe it won't

matter if we turn back the time or not.

If the company culture is everyone's responsible for

safety and the buck doesn't stop anywhere, how would

turning back the time have helped?

If you're going to hire an operations director, the

head of your operations, they know nothing about

maintenance, at least they should be tracking what's

going on with maintenance, auditing them, and they

admit -- they admit that the numbers of service

bulletins issued on these old Mad Max vehicles have not

been done, honestly, 80 percent of them. KEVIN MOLL, CSR

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If only we

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could turn back the time on that. If only we could have found a way for them to manage

their department so they could have seen what was

always there, right in front of them, to be seen,

because they blamed, probably rightly so, Ride the

Ducks International for creating this monster of a

vehicle, but they accepted it.

street.

They put it on the

They were in a joint venture together.

If only Mr. Johnson, Mr. Hatten, Mr. Tracey, if only

they had done at least one of the service bulletins,

the October 2013 service bulletin.

welder.

the Ducks International had actually given them

something correct to do.

If only they had a

If only they knew how to weld.

If only Ride

If only, if only, if only, if only the federal

regulations, 11 of them, had been followed, some

service bulletins wouldn't even have been issued,

because a recall notice would have been required,

supervised by NHTSA.

If only on August 10, 2013, instead of brainstorming

for a couple hours, maybe, at most, and coming up with

a fix on their own, without any engineering input.

only the end of July 2013 instead of making a leap of

logic that the reason a wheel fell off on Duck number

14 in Branson, Missouri, coming down Baird Mountain, KEVIN MOLL, CSR

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there was some weird tornado event, doing an

engineering analysis without an engineer to do an

analysis.

catastrophic axle housing fracture identical to what

happened in Seattle, if only the company had paused, if

only -- everyone agreed it was the worst thing that

could possibly happen.

didn't kill anyone because the vehicle was going two

miles an hour, but if the vehicle had been going

If only when Duck 14 lost its wheel due to a

If only they had thought, hmm,

faster, could have killed someone.

done that type of an analysis, doesn't even take an

engineer.

If only they had

If only when the captain wrote his three-page report

it had been kept.

If only there was some kind of

documentation about this whole, entire incident.

only when it had to be reported, finally, it wasn't

misrepresented.

the axle housing had fractured.

It's just being the captain noticed

A little bit different than during a tour, fully

loaded with passengers, while driving, the wheel came

off.

behind that.

That's not even negligence.

There was thought

If only that axle had been kept, preserved, other

than a few pictures, and an analysis been performed on

it.

If only they had used some type of scope, hired KEVIN MOLL, CSR

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some kind of an entity to figure out what was the

problem here.

service bulletin was because the month after the wheel

fell off another vehicle in the shop went bust.

weren't going to tell anyone anything until that

happened.

The only reason they even sent out a

They

If only they had not grabbed an old, crappy axle out

of the graveyard and not looked at it at all, other

than eyeballed it.

If only Frank English told the NTSB

that the wheel came off, so a real analysis and

investigation could have occurred.

There was no accident on July 27, 2013, and no

injuries were associated with this fracture break in

the SD14 left front axle housing, no mention of what

actually occurred.

If only Ride the Ducks Seattle and Ride the Ducks

International paid attention to the details of what was

happening to vehicles.

a database like if a vehicle failed on a particular

component part, it went into that database so the

manufacturer or even Ride the Ducks could look for odd

coincidences.

If only there was some kind of

If only they had seen these previous fractured and

cracked axle housing problems.

Ride the Ducks Seattle. KEVIN MOLL, CSR

These were all from

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2012, 2013, we don't even have to go farther back

than that.

If only in the culture of Ride the Ducks

Seattle the good governance policy included the concept

which should not have been the novel concept of safety.

If only by 2007 the State and City were just passing

off the concept of safety on the Aurora bridge.

only in 2003 and 2004 there were not any notes from

anyone about additional catastrophic axle failures at

Ride the Ducks International.

If only when Mr. McDowell came up with a not so

brilliant idea of a tab fix that had been engineered.

If only that tab fix had been welded on by someone who

knew how to actually weld.

been welded over critical parts of axle housing so that

fatigue cracking would be hidden from normal

inspection.

If only the tab fix hadn't

If only the metal used had been more appropriate.

If only the excuse that it was only the canary in the

coal mine -- those are Mr. McDowell's -- came up with

that kind of concept.

because you didn't tell anybody to look to see if the

canary was ever going to die.

vehicles, and then you don't tell the users what it is

or what it's for?

Great canary in the coal mine,

Attach it to your

I mean, someone at Ride the Ducks Seattle, they're KEVIN MOLL, CSR

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not the brightest bunch, they just didn't even know.

But even people in Branson, Missouri, where it had been

constructed, didn't have any idea what this thing was.

If only this once weak point in axle housing was

realized to be weak, certainly by 2003, 12 years before

this incident.

know, a magnifying glass, let alone dye penetrant

testing to look for cracks instead of just eyeballed.

If only at that time they had come up with the grand

If only they had started using, I don't

idea of a better, more permanent solution, versus a

canary in a coal mine, like maybe a collar fix that

actually was done properly.

Of course, the whole concept of canary in the coal

mine, we think, is pretty much made up to account for

the fact that they did use the wrong type of material,

they didn't know how to weld it on, they just stuck it

on there.

provide support.

change their story now.

It was on the bottom of the axle housing, where the

most vibrations would occur, trying to give it some

support, because they knew it would fracture.

The reason it was stuck on there was to Make no bones about that.

They can

This was to provide support.

Who put an old axle from the 1945s, that has a

chance of fracturing, because they had seen it, who

puts that into a vehicle that they're going to be KEVIN MOLL, CSR

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building two or three years later? This happened two or three -- January 2005 this

vehicle left the shop.

these are beyond missed chances, incomprehensible.

This isn't Billy Joel making his family -- you know,

using his daddy's old Mustang and building it and

rebuilding it in the garage.

building tourist vehicles to be used on public streets.

This is a corporation

If only NHTSA had known, this wouldn't have

happened.

laughed.

anything.

These aren't missed chances,

They would have looked at that tab fix and They wouldn't have let Mr. McDowell engineer

If only on January 31st, 2005, Duck six had never

left that shop.

It was a 1945 cracked axle and a tab

fix on it, and nobody knew what the heck it was.

incomprehensible that that happened.

It is

You can blame Ride The Ducks Seattle for a lot of

things, but you can't blame them for thinking they were

buying an appropriate touring vehicle at the time.

sounded like a good business opportunity.

business partner.

Have a nice

But if only they hadn't.

If only Chris Herschend, Robby Hultz, Brian Deckard,

and Frank English hadn't been trying to take shortcuts,

trying to avoid federal oversight, trying to claim that

their Mad Max vehicles were hobby vehicles that they KEVIN MOLL, CSR

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didn't have to tell anybody about. If only the Herschend Corporation, which bought into

this business, had applied its principles.

Ride the Ducks Seattle and Ride the Ducks International

had never known each other at all.

If only

If only when the vehicles were being stretched

without any testing or engineering done, but old axles

pulled out, with the vin numbers pulled from the old

parts.

If only Ride the Ducks International didn't try

to circumvent the laws by which all of us live by and

go get new vin numbers, which is what happens when you

create a new vehicle, this wouldn't have happened.

If only at the same time that that was happening the

City and State stopped talking about wanting to make

the bridge more safe.

talk about how narrow the lanes were, how fast traffic

went, and how there was no median barrier, they would

just have stopped talking about it and done something,

do a study, take action, consult a different barrier

company, any barrier company, do an actual study.

If only they didn't know and

We're not talking about this happening just a couple

years ago.

We're not talking about them suddenly

realizing, "Oh, my gosh, there's no median barrier down

the Aurora bridge, and there's median barriers on

either end of it, but not on the bridge, and people go KEVIN MOLL, CSR

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50 miles an hour on average, we have to do something."

Buses are allowed to straddle lanes, we're allowing

Ducks to travel on it, which are ordinary travel,

because we license them.

about them.

City of Seattle.

As a matter of fact, we boast

They're a huge tourist attraction for the

If only the City and the State didn't in their own

judgment determine that there were high severity

accidents on that bridge.

If they only didn't realize

the risk involved.

If they only -- only didn't try to

tell the other person that they should take care of it.

If only the drivers of the Duck weren't a party on

wheels.

Seattle.

day, no matter what the State and City did or didn't do

or should have done, could have done, we wish they

would have done, Duck number six, with a defective,

rotten-to-the-core, ready-to-break-at-any-time axle

housing was riding around the streets of Seattle, ready

to go, ready to change all the lives of 40 some people

in this trial, and another 20 that are not in this

trial.

If only the Ducks had never, ever come to If only, if only.

Because at the end of the

If only we could turn back time.

I would like to talk to you about some jury

instructions.

Oh, before I do that -- I should show

the jury instruction that I'm going to talk to you KEVIN MOLL, CSR

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about.

Jury instruction number 16 is proximate cause.

Proximate cause is a chain of events, unbroken, that

leads from one act to another.

go into it in a little bit more detail.

case there were four defendants.

verdict form your job will be to not only decide if any

of these or all of them are liable, but to what

degrees.

It's most basic.

I'll

And in this

And in the special

I'm going to tell you right off the bat it's

not even close, Ride the Ducks International, Ride the

Ducks Seattle, State of Washington, City of Seattle, in

that order, with the governmental entities way less,

but still at fault.

The burden of proof is more likely than not, called

a preponderance of the evidence.

means leaning that way, the evidence leans this way.

In a case like this, I'm going to fall over to the

floor, it's so overwhelming.

But it literally

You're not going to find yourself conflicted by more

likely than not as to who was at fault here.

talk about proximate cause.

Proximate cause, chain of events.

So let's

If only Duck six

had been properly inspected, they wouldn't have been on

the road that day and the crash wouldn't have occurred.

That's kind of like a simple form. KEVIN MOLL, CSR

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There can be more than one proximate cause.

If only

Ride the Ducks International hadn't done every bad

things I just told you they did, that you saw that they

did, if only there had been a median barrier, this

would not have happened.

It also can be a longer chain, so like one

continuous chain.

International sold it to Ride the Ducks Seattle,

Seattle had properly inspected it, and then the crash

10 11

So if only when Ride the Ducks

wouldn't have happened. Well, Ride the Ducks International set that chain in

motion.

delegate their horrible solution for an axle to someone

else.

They needed to have made sure that that axle was

appropriate even if it meant Frank English coming

across the street from where he had been hanging out

for a week after that bulletin came out to make sure

that they had done even one supposed service bulletin

repair.

matter, because those hadn't even come off.

As the jury instructions say, they can't

They can't just give that job to someone else.

And at the end of the day, it doesn't even

Negligence, failure to exercise reasonable care of

an entity.

So that means that they don't need to

predict the impossible, but when you have a bad

vehicle, when you have an entity that is not taking KEVIN MOLL, CSR

(206) 477-1584

12271

care of people, and when you have a roadway where the

vehicles are going to -- where the vehicles are going

to meet, it does not have a median barrier, in this

case that's negligence, it's falling below the standard

of care, because we expect our government to provide us

with reasonably safe roadways, and they have the duty

to provide them to us.

8 9

The not good enough is old, and to say that for decades, it's just getting older.

So there are some

interesting instructions.

of them.

and they are all/or, so you don't have to find every

single one of them to apply, but you have to find one

of them to apply to have that claim.

There's a whole combination

They are the product liability instruction

So there's the negligence claims, that we just

talked about, and then there's product liability

claims.

They're a little different.

Because we hold people that put products into the

stream of commerce and here onto our streets, we hold

them to a little bit of a different standard.

So the first claim is defective construction, the

defective construction claim.

six was defectively constructed and not reasonably safe

when sold to Ride the Ducks Seattle by Ride the Ducks

International. KEVIN MOLL, CSR

And we allege that Duck

(206) 477-1584

12272

And then there's a test that you have to perform,

and it's in there, you'll see it.

for you.

2003, it was like $175,000.

B, it had catastrophic harm potential, even without

knowing about this crash, carries 35 people and it's

built like a boat with a prow.

eliminated the risk inexpensively.

sad and horrible and infuriating about this case.

10 11

I've kind of done it

A, it's an expensive vehicle.

Back then,

A lot more now, probably.

You could have This is what's so

inexpensive to take care of this. I really almost don't even think that the expense

even crossed Ride the Ducks International's minds,

because it wouldn't be that expensive.

were just so arrogant.

They didn't need engineers.

NHTSA would have fixed it.

I think they

They don't need engineers. They knew it all.

And

The second test is not reasonably safe in design.

So the first one was constructed, the next one is a

design issue.

that we just talked about.

those with how expensive was it, what was the

probability of risk, how much would the fix cost, NHTSA

taking care of it.

24 25

So you still go through that same test You have to kind of weigh

And then there's a second test, so you can either/or them.

That's a weighing test. KEVIN MOLL, CSR

Let's see here, what's

(206) 477-1584

12273

the likelihood that five people are going to die and 70

people are going to get injured versus using a better

axle housing, manual dye testing it before you stick it

in a vehicle, or don't use it at all.

were so great?

tapered neck?

straight one is way safer than a tapered one.

8 9

Who said those

Why did you have to use them with a I'm no engineer, and I know that a

The next product liability instruction -- there's four of them -- is not reasonably safe due to lack of

warnings or instructions provided upon sale or after

manufacture.

this vehicle.

Well, they didn't even have a manual for

The test is once Ride the Ducks International

learned about the danger, here it would be in 2003,

before they even built Duck six, and then when they

sold it to Ride the Ducks Seattle, the ordinary user

would use the information.

that the tab really was the canary in the coal mine.

They should have been told about that.

Let's say, for example,

I mean, even if Ride the Ducks International had

made some attempt to at least act like they were doing

it right, but they didn't even make an attempt.

There's no manuals that went, no instructions when they

sold that vehicle.

Upon sale is the first one. KEVIN MOLL, CSR

No worries upon sale.

(206) 477-1584

12274

Second one was after sale, and they believed their

service bulletins were good enough for that.

service bulletin was nowhere even close to a recall

notice.

the reason was.

folks, guess what?

people on it, coming down a mountain, and the wheel

totally came off.

that will help.

Well, the

Among other things, they didn't even say what There was no description that, hey, We had a touring vehicle with 35

So you better do this, and maybe No, they didn't do that.

And as I said before, you don't have to prove all of

those, although I think that every single one of those

is met in this case, clearly.

The next one is called enhanced injury claim, and

this only applies to people that were on the Duck.

And, in particular, it relates to what efforts were

made to make sure that Duck six had some kind of

built-in safety features.

So what do we know?

We know that the Duck rammed

the bus, and when it rammed the bus, kind of clockwise,

it tipped and then righted itself.

ejected 11 passengers onto the ground, onto the

pavement.

As it tipped, it

We also know that almost everyone in the Duck ended

up somewhere completely different.

the air either outside the vehicle or in the vehicle, KEVIN MOLL, CSR

They flew through

(206) 477-1584

12275

landing in awful places, trapped under seats.

young man landed, doing the splits on top of the seat,

suffering a groin injury.

like I don't even know how to describe it.

One

People were tossed around

Now, what went into the seats, what engineering?

They're made of like, I don't know, that material is

not -- is not like your seats here, it's just -- I

think they call that Naugahyde or faux leather.

doesn't even pretend to be leather.

That

Slick, flat,

crushed on impact, and look at what you get to then do.

There's nothing on the sides of this vehicle keeping

you in it.

aren't auto manufacturing-worthy beams that are

designed to withstand impact.

It's a canopy held up by some poles.

Those

And so enhanced injury says that if because of your

actions some people had a worse injury, then that's an

enhanced injury claim.

six passengers, because those are the people that were

sitting in this hodgepodge of a vehicle.

It would only apply to the Duck

"Let us stop at its source all this mischief, cried

he.

cliff we will fence, we might almost dispense."

Come, neighbors and friends, let us rally!

If the

Do you need to put up a fence on a cliff only after

someone has died falling off it accidentally?

-- median barrier, an entire roadway, with two lanes of KEVIN MOLL, CSR

(206) 477-1584

Do you

12276

travel, by the way, that go into a bridge that has no

median barrier and excuse it because not enough people

have died?

What the Duck companies did here was -- honestly, it

was outrageous.

It should not be ever tolerated, ever,

ever again.

regulatory authorities, eyeball, make up, and create

your own Mad Max vehicle and put it on the streets.

is so outrageous.

You don't get to, basically, circumvent

And so when we talk about a lack of median barrier

over a bridge, it's almost anticlimactic, because you

think -- at least I think what they did was so bad, was

so awful.

do was as awful as what the Ducks did, what they

haven't done is affecting the public safety.

willing to take the risks of vehicles are going to go

out of control on a 50-mile-an-hour roadway in the

heart of Seattle, with 70,000 some odd vehicles

travelling it every day.

But even if what the State and City didn't

They are

Oh, but a vehicle having a mechanical failure,

that's not ordinary travel.

tire, that's ordinary travel, that's the risks of

having ordinary travel.

24 25

Says whom?

You blow out a

You know that when people are engaging in ordinary travel that human error occurs. KEVIN MOLL, CSR

A person can have a

(206) 477-1584

12277

heart attack and lose consciousness across the

centerline.

momentarily not pay attention.

even though they shouldn't be, we know they shouldn't

be.

A person can be talking to someone and They can be texting

Mechanical failures, ordinary travel?

Common sense

tells us that it's not.

I don't know how I mucked up

that one, but ordinary travel was human-caused error.

That's part of roadway engineering.

That's what we

have curbing for, clear zones.

supposed to be so far off a roadway and poles aren't

supposed to be right on the lines, because people

overcorrect, people make mistakes, and we have to

engineer with that risk in mind, and we do engineer

with that risk in mind.

That's why trees are

And so here's my -- this is my analysis, for what

it's worth, and I struggled over it.

come up with 100, not go over 100, which is what I kept

doing, this is how I broke it down.

Ducks International is 50 percent at fault, when you

would consider everyone involved.

they're 75 percent at fault, they're 100 percent at

fault, and then Ride the Ducks Seattle is 30 percent at

fault, they're something less, and they're 50 percent

at fault. KEVIN MOLL, CSR

But in order to

I think Ride the

Honestly, I think

(206) 477-1584

12278

I hate percentages, having you go 100, because their

conduct is so bad.

I think the State and City are at

fault.

less than that, and it sounds like it's okay.

sounds like it's okay that our busiest highway in

Seattle, other than the freeway, with the fastest

speeds, is just being left alone for people to complain

about, for people to have to get canned responses from,

that have been in existence for years, a canned

I don't think it is nearly as much, but much It

response?

have a canned response for that?"

out the canned response."

you for inquiring about the lack of median barrier on

the Aurora bridge.

that.

alternatives is relocating the pedestrian walkways or

widening it.

Was it Mr. Leth who said, "Hey, don't you "Sure do."

"Pull

"Dear Mr. So and so, thank

We have some plans in place to fix

They haven't happened yet.

One of the

We'll be working on this soon."

So let's go back to the timeline.

There's a

difference between things happening and negligence,

missed opportunities.

timeline, no new vin numbers, Ride the Ducks

International escapes government oversight.

a vehicle that is not good and that there are going to

be problems with as it grows even older than it already

is.

So we start at the top of our

KEVIN MOLL, CSR

(206) 477-1584

It creates

12279

2002, well, there's some missing up here.

because it's my fault.

I skipped some.

over.

My fault.

That's

You can put them all up there.

I admit it.

Thanks.

Let me start

I want to kind of get us to my story.

So 1976, Ozark Scenic Tours starts with regular

Ducks, not stretch Ducks.

talked about due to the unsafe nature of the bridge,

or, as they'll say, the need to make it more safe,

which to me means it's not safe, concrete Jersey

10 11

Median barrier starts being

barriers, blah, blah, blah. Then in 1998 we have the first lease agreement, the

stretch Ducks are beginning to be manufactured, there's

no engineering done at all with stretching them, or

covering up critical parts with boots, that in order to

look inside of them you have to drain them, clean them,

and then look inside of them, at most, once a year.

NHTSA not advised, boom.

This is the biggest first

missed opportunity for the Ducks.

the biggest missed opportunity for the governmental

entities, it's in the '90s, when construction costs

were cheaper than they are now, as we all know.

let's focus here.

This, of course, is

But

When you look at proximate cause and the elements of

law and negligence, it doesn't have to be intentional,

it has to fall below the standard of care. KEVIN MOLL, CSR

(206) 477-1584

12280

reasonable manufacturer would have ever done that, no

reasonable manufacturer should ever do that.

reasonable vehicle manufacturer knows that you should

never do that.

price for doing that by coming in and saying it's an

accident, we didn't know.

opportunity, that was they could have -- maybe they

would have been shut down, maybe they couldn't have

ever gone forward, maybe the stretch Ducks would never

Every

And you don't get to avoid paying the

That's not just a missed

have ever been born, but you don't just go cutting a

vehicle in half and cobbling it together like that.

A, on the chain of causation, proximate cause, they

put that vehicle in the stream of commerce, on our

public waterways, in 2005.

that vehicle in they already knew it was rotten because

of axle housing had been failing.

coming up with a different design, calling an expert,

they just put on a stupid tab that doesn't do anything.

At the time that they put

NHTSA should have been advised.

And instead of

They were not

advised.

manufacturer -- I don't want to say in the history of

the world, but in America, would ever have done this.

They're not allowed to do this with a vehicle.

inconceivable.

There was no engineering consult.

It's

We're not talking about a clock manufacturer, right? KEVIN MOLL, CSR

(206) 477-1584

12281

If it goes bad, fine, it doesn't tell time, which this

one doesn't, the battery thing doesn't work, drives me

crazy.

roadway that could endanger lives.

forward -- we march forward to 2013, with the wheel

coming off.

Again, it's all a repeat, it's so

repetitive.

Most cases would have one of these.

have one time this would happen in the whole chain of

events.

10 11

We're talking about a vehicle on a public

It happens over and over and over, until this

happened on September 24, 2015. I don't even know why they are fighting this.

never known.

this shouldn't take any time.

obvious.

But then we march

I've

I told you that when I first saw you. The negligence is so

We have to prove it to you, and we did.

The next instruction I want to talk to you about is

instruction number five.

insurance, there sure cannot, for any purpose,

including whether or not the defendants have enough

money to pay the verdict.

table.

another day, another legal day.

There can be no discussion of

Insurance is just off the

Whether it's collectible or not, that's all for

The next instruction is the but for proximate cause,

but with respect to a different issue, and that's

damages.

And damages are what happened to our people.

So the but for rules are going to apply, and you'll KEVIN MOLL, CSR

(206) 477-1584

12282

find them in your discussions, and I'm going to show

you some examples.

3 4

The simplest way, right, is but for this crash Fenna Zielinski wouldn't have suffered her injuries.

But the chains go in different directions.

Ms.

Zielinski had prior vulnerabilities.

I can go down a

list of every single person here.

preexisting depression.

anxiety, some of them didn't get along with their

Don Clouse had

Some of them had preexisting

parents, some of them had some kind of an issue that

hadn't even manifested, maybe never would have

manifested.

It's in the causation chain.

That doesn't break the chain of causation.

The next instruction I want to talk to you about,

and I'll talk a little bit more about the chains and

but for with respect to some of the others.

Instruction eight, this called failure to mitigate.

There's a book that I have, I've had this since

college, it's called Blaming the Victim, and that's

what this is in this case.

Seriously, you're getting an instruction that's

going to say you can blame the plaintiffs, and, if you

do, then you can reduce their damages.

24 25

We injured them, but they should have done X, Y, or Z.

That's called blaming the victim. KEVIN MOLL, CSR

(206) 477-1584

It's completely

12283

inappropriate in this case.

total issue with that.

It's offensive.

We take

And for defendants like this to come in and accuse

20-year-old Mazda Hutapea for making up her injuries

for a lawsuit, to accuse JoAnn Gerke and Rhonda Cooley

of conspiring to have fear of vehicles so they can have

a lawsuit, that's what that instruction is going to

allow the defendants to argue.

Failure to mitigate does not include a real person

coping with their injuries, and this is very important

in this case because of the emotional mental health

issues involved, whether you call it PTSD or

agoraphobia or depression or situational anxiety or

depressive disorder, or any other thing that you want

to call them.

The number one problem with people getting treatment

is avoidance, because they don't want to go back to

September 24th, 2015.

For many of them, having to come in the courtroom

and tell you about it, wrecked them.

That is not

failure to mitigate.

The fact that many people come from a different country

or Wisconsin and don't want to talk about their

emotions, they want to keep them inside, they don't

want to relive it, they don't want to experience it, it

That is trying to deal with life.

KEVIN MOLL, CSR

(206) 477-1584

12284

hurts them too much, it brings them too low, that is

not failure to mitigate, that's human coping.

So we get back to this proximate cause chain, and

the instruction here is -- I'm going to use eggs.

don't normally use eggs, but I like to use them in this

slide presentation.

are slides 49, 50, and 51, these are -- you're going to

see them when I talk about them, aggravation of

preexisting conditions, the lighted up, all of those

10 11

So the number one concept, these

instructions, and I think this will be helpful. Principle number one, you take the victim as you

find them.

So it doesn't matter if they're an

18-year-old who has never had injury before and his

body is healthy and can recover quickly.

matter if injury is to a 70-year-old who's had a lot of

preexisting issues that are now lighted up or made

worse.

didn't get to choose to be in the situation.

to take them as they are.

is for the set of instructions.

It doesn't

You take the victim as you find them.

They You get

So that's what the premise

If the victim, the plaintiff, had a preexisting

condition that they were coping with, whether it was

not lit up or lit up, you take them as you find them.

24 25

So you don't blame the plaintiff for having a preexisting condition, you don't -- we don't do that. KEVIN MOLL, CSR

(206) 477-1584

12285

Instruction number 51, I'm hoping I get these right,

is preexisting underlying susceptibility.

So what does

that mean?

many of you open the box to look inside of it?

would you have to do that, right?

perfect eggs, they should all be perfect.

sometimes there's an egg that has a preexisting

susceptibility, just a little bit of thin edge of layer

to it and maybe a crack that you can't see.

So if you go to the store to get eggs, how Why

Because they're all But

When the

carton is jostled even slightly, the egg with the

preexisting vulnerability or susceptibility is the one

that cracks.

You don't get to say, well, they had a preexisting

underlying susceptibility, so you've got to blame that.

No.

consequences for what has happened with the negligence.

You take that victim as you find them.

That was how it was, and now you pay the

Lighted up is instruction number 49.

So in this

scenario your egg can -- right, your egg looks perfect.

Now, that means either it is a perfect egg, some of our

18-year-old students, or it just looks perfect, but

there's still some little underlying susceptibilities

in there.

But if you're not having any -- any symptoms, so,

for example, it can apply to a 60-year-old or

50-year-old, or anyone else that had a condition that KEVIN MOLL, CSR

(206) 477-1584

12286

has -- let's say I had a bad neck five years ago, but

it's not causing me any symptom, whatsoever, I don't

even notice it, not on my consciousness.

conditions are lit up, then you're liable, defendants.

That means you didn't even know you had them or you

weren't experiencing any pain or any problems or

anything, and now they're lit up.

entitled for the entirety.

fact that, oh, they had this preexisting susceptibility

If those

The defendants are

You don't minus out the

so we should take off a little bit off for that, no.

When you light it up, you're responsible for the whole

thing because, if you hadn't done what you did, they

would never have been lit up.

The next one is aggravation of a preexisting

symptomatic condition.

and then it will be a good time for -- well, we can

discuss it with your Honor.

I'm almost done with the eggs,

The aggravation of a preexisting symptomatic

condition.

something, the same conditions, the egg is cracked, but

that doesn't mean that when you're in a crash like this

you're not made worse.

This means you aren't perfect, you have

To the extent you're made worse, that is all

recoverable.

Unlike the lighted up, you don't --

you're not responsible, the defendants, for everything, KEVIN MOLL, CSR

(206) 477-1584

12287

1 2

you're only responsible for the aggravation part. So let's say that somebody -- let's say somebody had

a bad knee -- we'll go into specifics later, was a

little bit gimpy, but not bad.

now they need a total knee replacement.

no evidence they would have needed total knee

replacement now, you're responsible for that whole

aggravation.

Now they don't even have the knee, it's been totally

10 11

They're in a wreck, and If there was

All they have is the gimpy knee before.

replaced, so it's that difference. Both of these situations, lighted up, and aggravate

-- aggravation, can be temporarily or permanently.

That's for you to decide.

So an aggravation might sound like, well, it's only

temporarily aggravated and then they go back, but

sometimes people are never able to go back to how they

were before.

to how you were before, that's all recoverable.

that's those sets of instructions.

20 21 22

And to the extent that you can't go back So

I want to talk a little bit about -- your Honor, what time did we say that we were going to? THE COURT:

Noon.

Do you want to stop now and talk

about how much longer you think you have, or do you

want to keep going for a little bit longer?

MS. KOEHLER:

I think we're going to come back at

KEVIN MOLL, CSR

(206) 477-1584

12288

1 2

1:15?

Then we'll be good to go.

THE COURT:

We'll figure it out.

Stay here, ladies

and gentlemen.

briefly in chambers, and get a sense from Ms. Koehler

about, roughly, how much longer, and that will

determine how long our lunch break is.

that out.

8 9

I want to talk to counsel really

We'll figure

Come on into chambers, Counsel. (Chambers conference)

THE COURT:

Will you turn off the glaring bright

light?

I can't see you all, but I don't want to move the

screen right now.

Thank you so much.

Ladies and gentlemen, sorry

It looks like the plaintiffs' opening closing is on

track, but to be on the safe side let's plan that you

will be back by 1:15 just to be sure that we break by

4:00 o'clock today, because we will break by 4:00, no

matter what.

Leave your notebooks and notepads on your chairs.

Don't talk about or research the case.

about 1:15.

21 22

We'll see you

(Jury out) THE COURT:

Be seated, everybody.

Ms. Koehler told

us in chambers that she thinks she's on track to be

done by 4:00 o'clock, but, to be on the safe side, we

all agreed that we would come back at 1:15, as I just KEVIN MOLL, CSR

(206) 477-1584

12289

1 2 3

expressed to the jury. Anything to add to the sidebar? any of the parties before we break?

MR. PUZ:

THE COURT:

MR. PUZ:

Anything else from

No, your Honor. See you all at 1:15. Thank you.

(Recess)

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KEVIN MOLL, CSR

(206) 477-1584

12290

C E R T I F I C A T E

STATE OF WASHINGTON

COUNTY OF KING

) ) ss. )

4 5 6 7

I, Kevin Moll, Certified Court Reporter, in and for the State of Washington, do hereby certify: That to the best of my ability, the foregoing is

a true and correct transcription of my shorthand notes

as taken in the cause of The Dinh Group vs. Ride the

Ducks of Seattle, et al., on the date and at the time

and place as shown on page one hereto;

That I am not a relative or employee or attorney

or counsel of any of the parties to said action, or a

relative or employee of any such attorney of counsel,

and that I am not financially interested in said action

or the outcome thereof;

17 18

Dated this 24th day of January 2019.

19 20 21

____________________________________

KEVIN MOLL,

King County Official Court Reporter

24 25

12291

1 2 3

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING ----------------------------------------------------------------

RIDE THE DUCKS SEPTEMBER 24, 2015

)

No. 15-2-28905-5 SEA

AURORA BRIDGE COLLISION

)

[Consolidated]

)

AFTERNOON SESSION

6 7

----------------------------------------------------------------

VERBATIM TRANSCRIPT OF PROCEEDINGS

----------------------------------------------------------------

Heard before the Honorable Judge Catherine Shaffer, at King County

Courthouse, 516 Third Avenue, Room W-829, Seattle, Washington

12 13 14 15 16 17 18 19 20 21 22 23 24

DATE: January 24, 2019

REPORTED BY: Joanne Leatiota, RMR, CRR, CCP Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12292

APPEARANCES OF COUNSEL:

2 3

KAREN KOEHLER, ANDREW N. ACKLEY, MELANIE NGUYEN, and

ANTHONY MARSH, representing the plaintiffs;

SCOTT C. WAKEFIELD, DAN R. KIRKPATRICK, JOHN SNYDER,

TYLER HERMSEN, MICHAEL KING, and WILLIAM CARR, representing the

defendant Ride the Ducks International;

PATRICIA K. BUCHANAN, D. JACK GUTHRIE, and NICK CARLSON,

representing the defendant Ride the Ducks of Seattle;

STEVE PUZ, PATRICIA D. TODD, and RICHARD FRASER III, representing

the defendant State of Washington;

TAD SEDER VANESSA LEE, and AMBER PEARCE, representing the

defendant City of Seattle.

14 15 16 17 18 19 20 21 22 23 24 25 Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12293

INDEX

1 2

WITNESS

(None)

PAGE

4 5 6

Closing argument by Ms. Koehler

12294

7 ADMITTED EXHIBITS

8 9 10

NO.

PAGE

(None)

11 ILLUSTRATIVE EXHIBITS

12 13 14

NO.

PAGE

(None)

15 16 17 18 19 20 21 22 23 24 25

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12294

Seattle, Washington; Thursday, January 24, 2019

AFTERNOON SESSION - 1:16 P.M.

3 4 5 6

--oOo-(Jury in.) THE COURT:

Ladies and gentlemen, please give your

attention again to Ms. Koehler.

MS. KOEHLER:

Continuing through the jury instructions, we have

9 10 11

Thank you, your Honor.

three more to cover, and then we're going to get into more testimony. Instruction number 10 is specific to the estate of

Claudia Derschmidt and Felix and Moritz Derschmidt.

You see personal representative, and that's a

court-appointed entity that is a personal

representative that is entitled to bring the claim on

behalf of.

So that's why you've never met this person.

never meet this person.

particular purpose of bringing an estate claim.

You'll

It's a legal entity for the

And the same is true for HaRam Kim.

There is a

little bit of a difference, however.

You will see that

Ms. Derschmidt had two sons, so they're also

plaintiffs, and Ms. Kim did not have sons.

what they allow -- the law allows only the claim for

the net economic loss to the estate, and we'll discuss

And this is

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that later. So they're a little bit different, these two claims,

and we'll go through that later in the instructions.

So that's why they have their own separate instruction.

They're both brought by personal representatives.

even though Mr. Kim is the father of -- of Ms. Kim,

he's bringing the case as personal representative

appointed by the Court.

Which takes us to the next set of jury instructions,

and there are many of them.

And they are for the

plaintiffs and different -- the reason why there are so

many of them, and yet not everybody has their own, is

because of the different elements of damages that they

will be allowed to claim.

And what's important to note, and as Judge Shaffer

read over and over again, you could hear the conclusion

of each of those instructions.

there is no chart that we'll be giving you where the

state of Washington has decided that an arm is worth

this much or life is worth this much.

thing in existence.

experience and judgment.

It said specifically

There is no such

And instead, you may use your own

And while you cannot judge purely because you're

angry and you want to -- or you're crying so hard

inside that you just come up with something that's Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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purely based upon the agony of what you're going

through, well, you cannot do that.

What you absolutely can do is take into account the

human nature of this proceeding, both of the people

that you're looking at and yourselves.

robots.

human beings judging human beings.

You are not automatons.

You are not

The court of law is

So all of your experience goes into that -- your

common sense, your knowledge, your thoughts -- in

particular, of these types of injuries, which are

disability, disfigurement, loss of consortium, pain and

suffering, loss of a mother, death.

These don't have a dollar amount like some items

will.

For example, you heard Phuong Dinh has 600,000

medical expenses -- past medical expenses, or Yuta

Masumoto had 300,000.

we can feel, we can touch.

human beings are something quite different, and they

are not mathematically in some kind of a chart for us.

So I do want to talk to you a little bit about what

That's a number that we can see, But the numbers involving

does that mean and what we'll be looking at here as

we're going through all the plaintiffs and their

injuries.

24 25

The law, as I said, is human based.

And as humans,

we've come up with what we consider to be how to Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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compensate people that have been injured or killed

because of negligence or the wrongful acts of others

that do not rise to a criminal level.

intentional misdeeds here.

below the standard of care, they failed to act

appropriately, and in terms of product liability, they

put a dangerous product out into the public.

8 9

It's negligence.

So how do you consider and measure?

They fell

I want to just

talk to you about considering it and not go into

measuring until the end.

measured it.

measure it.

So they're not

I'm going to tell you how I

That doesn't mean how you're going to

So when we consider money damages, that is a hard

concept to consider because life is invaluable, so

precious, we don't want to put a price on it.

our body parts all working is so precious to us.

It's -- our mind is very resistant to wanting to put a

dollar value on that.

Having

It just seems wrong.

But in our courts, that's what we have to do, what

we must do, because we cannot pull back time.

cannot give people how they were before this happened.

We cannot restore them in the way that we wish we could

if my clock here were magical.

24 25

So unapologetically, this is why the plaintiffs have brought this case.

They know that you're not going to

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give them back their mother or their hips.

want isn't -- this is the item of damage that counts

the most, and it's because it's human value.

What they

If you have a very sick friend and you go visit them

in the hospital, you don't ask them:

past medical expenses? what are your future medical

expenses? are you going to miss work? what's your lost

income?

9 10

We don't want to ask the data. question:

What are your

We ask one simple

How are you? are you going to be okay?

That's what we value as a society.

It's very human.

So money in the judicial system is symbolic, and

it's symbolic of the value, even though hard to

calculate, the preciousness that we put on life,

health, love, pain, disability.

So I stand before you filled with symbols.

I am

wearing jade, which is a symbol of heart.

I'm wearing

white for my clients.

road without a median barrier down the middle of it.

I showed you the book that I kept for 30 years.

I have Lego, a Lego median barrier.

I'm wearing a skirt that has a

real barrier.

duck without a canopy that's not been stretched.

have people.

It's my median barrier.

That's not a

These are symbols.

I have a toy I

And money in society is very

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symbolic, in our society in particular. If it wasn't so, then I'd be telling you something

different.

talking about that medium.

show these people how much we see what happened to

them, how much we understand what happened to them, how

much we value what they lost, how much we honor and

respect what they went through, the only way that you

can do that is to tell them in terms of a jury verdict.

10 11 12

If we valued something different, I'd be But the only thing we can

You don't get to write words and explain.

It just

doesn't work that way. So as I take you through what happened to the

clients, I want you to just consider that.

inclination is not to like money when it comes to

comparing it to health and loss and death.

seems wrong.

right.

constitution is based.

knew they would be facing, every single mischance that

happened in that approximate chain.

But it's not wrong.

Our natural

It just

It's absolutely

It's what our law says, and it's how our And that's what the defendants

So we'll start with our bus passengers.

Susan Gesner.

Susan Gesner and her husband Tim,

they come here to visit their son who works here, and

they were waiting for him to get off work when they got

on that bus.

She's one of the first people that

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testified.

She couldn't stop crying.

One thing that will be helpful when you begin

deliberations, and I am sure you'll know, is the

charts.

at the mortality tables, there's a list of all of them.

But in order to take into account all the elements

and the factors and everything, I think charts are very

helpful.

time I'm talking about plaintiffs, we're going to show

10 11

There's a lot of people involved.

So we're going to show you -- at the same

you the charts that we created. Now, the charts match up with the jury instructions

on the elements of damages.

look at the very top.

which instruction here applies to them.

instructions apply to different people.

If you look

So we see here -- if you

So we have a client by name, So different

We have listed the reasonable value of the necessary

medical care and treatment to the present.

past that's not disputed by anybody.

of earnings lost to the present, so that's our past.

That's the

Reasonable value

Then we'll have the reasonable care, medical

treatment, services in the future.

Those would be the

Tony Choppa and Professor Tapia numbers.

Then we have the future lost earning column, the

reasonable value of nonmedical expenses in the future.

So these are all the data portions for the hard damages Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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that there are bills, you know, kind of thing. Then the last two are the non-economic damages.

those are nature and extent of the injuries, disability

and/or loss of enjoyment of life, disfigurement, pain

and suffering, both mental and physical, and loss of

consortium.

Some people don't have loss of consortium.

So they

have a little bit of a different -- and they don't have

disfigurement.

So these ones don't have the loss of

consortium.

there, actually.

We don't really show those last columns We weren't perfect.

We tried.

So looking at -- if we could go to -- if we start

off with Susan Gesner, there you can see and you will

find that we're really not putting any numbers in here.

So some of these numbers we just aren't even claiming.

We did not bring in doctors to talk about all of

these numbers, and so they're small enough, although I

mean -- not totally small, but small enough that we

felt we are not going to put them in the jury

instructions.

You won't see them in the jury

And then we have an X there for the pain and

suffering, loss of enjoyment of life damages.

Ms. Gesner's primary injuries, as you will

recollect, were physical, overlaid with some emotional Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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problems, especially with respect to her ruptured

breast implant.

with a drain in it, I thought, for about a year, and I

felt that she was very disfigured from that and has

changed her appearance permanently as a result.

That became a real problem.

She lived

Her husband Tim Gesner, he's one of those eggshells,

and he was -- how old he was -- I put too many pictures

on this slide.

some preexisting musculoskeletal, neck, kind of back

I should have put them out.

But he had

issues that were definitely aggravated.

Again, he -- he just -- he had a significant

emotional injury, as did about roughly half of the

plaintiffs here.

this case primarily had mental health-related trauma.

So that half of the plaintiffs in

But we don't minimize what happened to them

physically, because they all thought they were dying.

And then they had a physical injury and a mental injury

on top of that, and they're very connected.

Sonoko Hiraoka.

This family of four were coming to

celebrate Kenichiro's getting into dental school as a

celebration.

when Mr. Hiraoka -- Dr. Hiraoka was a professor over at

UW Medical School visiting and loved Seattle totally

for sure.

As you remember, they lived here before

Big M's fans.

And she was 54.

Now, when you look at someone that's had the level Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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of injury that she had, I'm not going to go and explain

everything over to you again.

to a lot of medical testimony and seen a lot.

not see these charts in closing.

called illustrative evidence.

your memory and your great notes to remember what

happened to Sonoko Hiraoka.

8 9

You guys have listened You will

All of this was

And so you will rely on

But she was -- she was something.

She was a

professional skier before she had children.

She never

stopped being an athlete.

She was just a vigorous,

loving, active person.

worst in the family.

family that has changed the whole course of that

family.

And this injury to her was the So it created a dynamic in the

Her injuries included not only multiple hip-related

fractures, but degloving injuries, as you remember, of

her leg on one side and then on the other side.

Actually, both legs were degloved.

Most people on the Duck, I don't know if you realize

this, almost all of them had injuries to the lower

parts of their legs most likely because of how the

chairs were configured.

But almost all of them had an injury to their shins.

You can see the -- so the one that's wrapped, the

shin that's wrapped was the degloved, and the one that

You can make that decision.

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just has the big laceration on it is the better leg. She had her acetabular fracture repaired, as you

will recall.

been three years.

She's just never been the same.

It's

Her family has rallied around her, but not only does

she have these physical injuries, it's the mental

injuries.

same Sonoko Hiraoka.

her children getting in car accidents when they come to

She's just a changed person.

visit her.

that's a real problem.

She is not the

She worries all the time about

Both of them no longer live at home.

Her husband Dr. Hiraoka sustained a blow to his

head.

kind of felt like, well, he wasn't going to get any

better.

His primary complaints are that he just has never been

able to function normally again.

He kind of diagnosed himself, honestly, and just

And he's a doctor.

I guess he could do that.

And we heard the testimony from his best friend

here, another doctor at the -- University of Washington

professor who said that as soon as this happened, when

he ran over to go pick them up to go try to find Sonoko

at the hospital, he just was -- there was something

different about Dr. Hiraoka.

fuzzy, not confident.

He was foggy, he was

And that has persisted.

It's persisted to such a degree that he doesn't do Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12305

surgeries by himself anymore.

always did surgeries before.

come and assist him.

That's not debated.

He's hired someone to

That is a permanent arrangement.

Dr. Hiraoka's guilt over what happened is

irrational, as is all the guilt of every single

plaintiff in this case.

plaintiffs feel so much guilt in this case.

His guilt

is because he took his family on this trip.

He is

responsible for the safety of his family, and he failed

It's interesting that the

them.

impact associated with this.

He continues to have significant emotional

And I do want to take a moment to talk about do they

have PTSD, don't they have PTSD.

this doctor says no.

is or isn't.

This doctor said yes,

Here's how you can decide if it

That's all well and good.

There is not a single person who's testified that

has said that these people have not suffered immense

mental injury.

We like to label things, call it PTSD.

Immense mental injury.

it is for you to ever get over it.

That's fine.

The older you are, the harder

Kenichiro Hiraoka is a stellar baseball player,

played a little bit too much and had to study a little

bit more than usual to get into dental school.

loved baseball.

That's one of the reasons they love

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Seattle so much. He has developed a fear of blood, and he's going to

be a dentist.

dental school.

he's going to have to really face that.

young man.

into account when you're looking at what has changed

for these people.

That's the problem.

He's still in

He hasn't gotten to that point where He's still a

But these are things that you get to take

Before this happened, he would never have had to

think twice about doing surgery on the mouth.

what he wanted to do, be a dentist.

going to suffer through it, and every time he has to do

it, he's just going to suffer through it; or B, and

hopefully not, he will maybe not do dental surgery, if

there's such a thing as a dentist that doesn't extract

teeth or something like that.

17 18

That's

Either A, he's

I don't think there is.

And how ironic that the person in dental school had his front teeth knocked out.

Yousuke Hiraoka, the jokester in the family, is

mainly just scared about his mother is what it boils

down to.

he's extremely worried about his mother.

changes how he lives his life.

have changed because Sonoko Hiraoka has been so badly

injured.

Sure, he has his own fears and anxieties, but And that

The family dynamics

They're very protective.

They're overly

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protective. Rhonda Cooley.

Rhonda Cooley was your classic

eggshell plaintiff, because her shell had already been

cracked.

taken Oxycontin, she missed time from work

periodically.

working.

her job and keep working.

She had some prior shoulder problems, she'd

But she loved her job.

She loved

She was going to do anything it took to keep

She loved her son who, despite what Dr. Bibeault,

the psychiatrist, said, was not an accident born out of

risky sexual behavior.

had at a very young age.

She was in a good place.

He is a beloved son that she And he has her grandchildren.

She was in a good place, but when you are thrown

around in a bus -- or Duck, I should say, and you break

that many ribs, let's say -- I think she had one, maybe

two broken ribs that were old broken ribs before this

happened from falling off a ladder.

an active person.

it.

four -- two, three, four, five, six, seven, eight,

nine.

Not 11.

that.

Those hurt.

24 25

She was -- she was

She was on a ladder, she fell off of

She had some rib issues before.

Well, two, three,

She did not have 11 broken ribs before

Bigger issue, of course, is the fracture in her -- I think it was another acetabular.

Yes, acetabular.

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all know that word, because so many people have them.

You know how you get acetabular fractures is when the

strongest bone in your body is jammed up and breaks the

socket out, because that's how bad the force of impact

was.

Just like Mrs. Hiraoka, this happened to Rhonda

Cooley.

they thought she was actually in better shape than her

wife.

10 11

And the doctors dug out the fragments, and

But that didn't happen.

She ended up having a

total hip replacement. I'm going to pause here, because this is one of the

people that I just think highlights this "Blaming the

Victim."

Actually goes beyond.

I'm really not sure why the defense has reacted to

her so poorly and so suspiciously from calling her out

with how much time she spends with the Amish people,

accusing her of doing untoward things like giving them

rides.

I really don't understand that.

That many broken ribs, a broken-out acetabulum, a

total hip replacement, and then they said should be

going back to FedEx?

could go back to FedEx, she'd go back to FedEx.

she would.

Is it FedEx, not UPS?

If she

Her mental issues are complicated by her past

issues, many of which were paraded before you in Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

I know

12309

excruciating and embarrassing detail.

I ask you, why is it necessary?

3 4

She had prior issues. She is.

She did.

this.

I'm willing to accept that.

MR. SNYDER:

THE COURT:

MS. KOEHLER:

She says she has a fear of driving. I don't understand why --

Objection, your Honor. Sustained.

Be careful, Ms. Koehler.

Sorry, your Honor.

Ms. Cooley. MR. SNYDER:

THE COURT:

She's angry about

I just don't understand the defense attitude towards

Why is it

necessary to humiliate someone like that?

Why?

Objection. Sustained.

Talk about the evidence,

Ms. Koehler, not about your personal feelings. MS. KOEHLER:

Sure.

For some reason I didn't make

this so that you could see everything, but I know you

remember with respect to Ms. Gerke.

Her spine was fractured in four places.

The muscles

and ligaments surrounding those areas of the spine had

to have been impacted.

fracture.

every inch of her body was bruised.

She suffered a tibial plateau

And since she was ejected from the vehicle,

She was a PE teacher.

And she, like her wife, loved

her job.

She took early retirement and now teaches

classroom part-time for driver's ed.

Her emotional

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distress is more hidden than her wife's.

want to talk about anything.

about it.

She doesn't

Ms. Cooley wants to talk

It's causing stress on their marriage.

That's why

there's a loss of consortium element in their damages

issue.

whole unit of the married people, that is a recoverable

element.

Because when you impact not just one but the

Li Liu Edwards.

Li Liu was in the Duck, and she was

a journalist at the time from China.

again, primarily -- she was in the category of people

that primarily had a lot of bumps and bruises and

scrapes and marks.

this and never told her husband for more than a year.

She wanted to pretend it didn't happen.

want to acknowledge it.

She suffered,

She was getting married right after

She did not

That failure-to-mitigate instruction would punish

someone like Li Liu Edwards, if you believe that that

was not reasonable versus cultural or just a human

coping mechanism.

Jennifer Emery.

Jennifer had preexisting

psychological issues.

no doubt about it.

while her physical injuries healed, arm and broken

nose, her mental did not.

She was a vulnerable plaintiff,

And when she was in this crash,

It became worse to the point

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where not only did she have preexisting issues, she had

things like agoraphobia.

She would not leave her home.

She is a preexisting symptomatic that has been

aggravated by this crash.

went were really bad, because she started off at a

place of vulnerability.

that was exacerbated by this crash.

8 9

Her dark places that she

So she had some vulnerability

Sarah Johnson, her cousin.

As you remember, they

were close, and their relationship I don't want to say

ended, but fractured after this.

wanted to talk -- that would be Ms. Emery -- and one of

them could not.

unwillingness to talk about this with her own cousin,

who was so close to her, to acknowledge that it

happened, was her way of coping.

Because one of them

That would be Ms. Johnson.

And her

Again, if their failure-to-mitigate instruction is

to be used against her, it would punish her for trying

to pretend this didn't happen so she could live a life

of taking care of her children and her husband.

has not gone well for her.

many people who have tried to forget this.

did happen.

That

It has not gone well for

Alena Lutz from Switzerland, a nanny.

Because it

You're alone,

you're in a foreign country, you've just had amazing

experiences as a nanny, you're taking your last ride to Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12312

go home, and you're in this crash.

injured, but the person that you're traveling with is

lying on top of you as you become conscious on the

floor of the bus -- the Duck, looking up and realize

that the wet stuff you feel dripping on your face is

their blood.

Does she want to think about this?

Had she treatment for it?

going to catch up with her?

She does not.

She does not want to.

she have treatment?

incentive to have treatment.

Not only are you

It is.

Is it

When it does, will

We hope you will provide her with

These people that I'm going through are real human

beings.

many.

else in Switzerland for her to talk to about this.

doesn't know anybody else who speaks German primarily.

They're isolated, and they need to have what happened

to them seen and acknowledged.

of the deepest desires that we have is for

acknowledgement.

They feel so alone, even though there are so They are all over the world.

There's no one She

The human desire -- one

Young Ki Kim, the oldest person, was traveling -- in

this case, was traveling with his family from Korea.

He left here and ended up in the nursing home until he

was stable and able to be discharged.

old when this happened.

He was getting

He was already going to be

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facing changes in his life that maybe he wouldn't like,

like not being able to hear very much.

Mercifully, the progression of becoming older is

normally slow, especially in his case where he was in

good physical health because he preparing for it, but

the trauma changed him fundamentally.

scared of everything.

8 9

He is just

His wife Young Yee, not as old, but still the oldest of the females in this incident, is even more scared

than her husband.

argue, which they never argued before, according to

them.

down.

Very rarely.

And together they are scared.

They

Their world has been turned up and

Ms. Lee developed severe blood clotting, which you

had the unfortunate experience of watching.

Most of

the medical procedures of these plaintiffs were not

shown, but we did want to show you this one just

because of this.

Oh, I can't do it on that one.

The pain involved in going through procedures, the

pain involved in seeing people die before your eyes,

the pain involved is something that we want

acknowledgement for as plaintiffs.

24 25

Yunsu Kim, their daughter, had a pretty stable and quiet life before this happened.

She would go out

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regularly to see her parents as they were aging.

boys were in school.

injuries, though not severe, her mental has not

recovered.

And when this happened, her

It's a long way out to her parents' house.

won't even drive anymore.

She has to get a taxi.

8 9

Her

She

She can't drive over there.

She's one of the people that has seen a psychologist, I think a counselor/psychologist.

She

took her parents to see it.

what to make out of it.

psychologists are like, well, when you get to a certain

age, it's harder to overcome these kind of issues.

14 15 16

She's at least trying.

The parents don't know

Would they benefit?

Even the

Still can't drive, still is

just fearful, anxious, depressed, on medication. Sang Woo Kim.

Sang Woo was a young, active person,

and he developed what many people in older age develop,

which is back pain.

shouldn't have that.

quote-unquote, minor, he's now become a fragile egg.

He's not a perfect egg anymore.

Jae Young Park.

When you're 19 or 20, you And even though it's,

Jae Young, again, part of the

Park/Kim family.

Again, his injuries were not severe.

He had bumps and bruises.

mother as she began flying out of the Duck and was able

He was sitting next to his

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to pull her back in.

English, and they both spent all their time after the

incident just trying to translate for their grandma

primarily and grandpa.

He and his brother Jin spoke

They also feel tremendous guilt because their

grandpa and mom came to visit them, and they suggested,

hey, let's go ride the Ducks.

8 9

Sorry, I kind of took care of both of them at the same one.

As you remember, Jae Young, I believe, lives in

Alabama currently, and he's just far enough away that

he has to drive to work and cannot hardly stand it.

Almost everybody in these crashes has a fear of

driving, fear of transportation.

Alena Lutz goes on vacations because she's not going

to stop living life.

and noises and turbulence and anything that bounces.

Kathy Sheldon.

Has a deathly fear of airplanes

Kathy Sheldon is smaller, and she

and her husband and brother-in-law and his wife

Terry -- so Ron, Rick, Terry, and Kathy Sheldon were

all together.

Wisconsin.

They were so excited.

They came from

There's a lot of Wisconsin people here.

They drove to their -- to Rick's house and Terry's

house in California, and they were going to do a bucket

list item, which was to take the train up the coast, Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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come to Seattle, and then go on a Duck. She was so small that when the Duck struck, she flew

several seats forward in the air.

by.

Terry saw her flying

Terry was so distraught having to talk about this

that she could not get through her story on the witness

stand.

courtroom, crying in pain.

I will never forget her screaming in this

Ronald Sheldon, her husband, both of them long-time

factory workers, now retired, they both were seen

medically, but then they spent almost the rest of their

time over at Harborview surrounding his brother Rick,

worried about Rick.

Terry Sheldon's story is so remarkable because as

she saw Kathy Sheldon flying across the air forward,

she was ejected from the Duck.

up somehow and started running around, screaming for

her husband, whom she found also ejected.

She landed and jumped

She said that every inch of her body was covered in

bruises.

selfies that we couldn't hardly make out, but she came

back to tell us that she took so that we could see how

much bruising was on her body.

24 25

And to prove that, she took some terrible

I'll say this first.

Terry Sheldon was very frank

and told us that she felt the reason she was in this Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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wreck, the only good that came out of it was that

because of that, she could understand where her husband

was coming from and not divorce him.

destroyed her marriage to her husband.

This almost

Richard Sheldon, a former police officer, retired,

who was working full-time in security at -- in

particular training at an Indian reservation, lay on

the ground after being ejected from the Duck and could

hear people screaming and crying, and got up to try to

10 11

help them before he realized he could not. He continues to have nightmares to this day of

people calling his name, crying out for help.

tremendous guilt that he could not get up and help

them.

He has

After the incident occurred, he had to rehabilitate

his various fractures and went back to work part-time

slowly, and then his position kind of phased out, and

he just retired.

worked all his life.

wrecked.

his wife.

This is a person at 62 years old who That was his identity, and he is

His anger was so terrible that he almost lost

Neither he nor Terry, nor Ron, and barely Kathy want

to talk about this.

They don't want to go to therapy.

They want to just buck up and just keep going.

think they can do it.

They

We probably aren't so sure after

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1 2

seeing what happened to them. The defendants would have you blame them versus

understand that to talk about this, to process this, to

try to get into this is something that no one wants to

do.

human reason why not to.

That's plaintiffs in this case.

And that's a

It's not negligence.

Gunter Zielinski, he had preexisting injuries.

fortunately for him, he didn't get beat up as bad as

his wife.

10 11

And

He's a charming man with a storied past, who

definitely has some type of memory issue right now. His focus has been on Fenna Zielinski since the

moment this happened.

He somehow sweet-talked those

fire people into letting him stay on the bus as they

cut the seat away from her, inches from her head.

stayed there while they were operating the machinery

tools.

the Duck.

The last person, other than his wife, to leave

He told them that he wanted to be there, and he

needed to be there because he needed to be able to

translate, and that's how he was able to stay in there.

Fenna Zielinski was crushed.

They were right behind

the Duck driver at the front of the Duck.

She was a

home healthcare worker at the time, and she and her

husband had been married for a very long time.

various fractures.

She had

Again, all those terrible rib

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fractures you can do nothing about. But her biggest fracture involved -- guess what? --

an acetabulum.

it was surgically repaired here, and she was sent home

to Amsterdam.

and ultimately they had to do what they did to Ms.

Cooley.

insert a total hip replacement.

So when her acetabulum was blown out,

And in Amsterdam she was rehabilitated,

They had to completely burrow out her bone and

Let's go ahead and look at Fenna Zielinski here.

Let's talk about some of these numbers that I've been

ignoring.

Now, in Fenna Zielinski, her past medical expenses

that are agreed to are $113,000, and you might think,

well, what a bargain.

green -- I forgot what these columns mean, Andrew.

There you go.

And then there's some numbers in

Reasonable value of medical care,

treatment, services in the future.

don't include, these two categories, is quite

significant, because she's from the Netherlands.

And what these

So even though doctor -- no, Mr. Partin told us that

the value of her hip replacement would have cost

about -- I thought it was 139 or something like that

thousand dollars, it's not included anywhere.

future medical expenses are not included.

spent in the rehab home for months is not included.

Her

Her time

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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And so when you look at these numbers, you will

start to see that they are what they are, and sometimes

they're very unhelpful.

Or Lee family, Young Yee Lee.

no.

The same for the Kim family. There we have hospital,

The surgery you saw, not included.

There is really not a direct relationship between

the numbers that we put up here of past medical, future

medical, and anything.

extent because I think it's somewhat helpful just for

We've done it to a certain

whatever it is, but it also can be very misleading.

So for Ms. Zielinski, with the surgeries that she

had, with the rehab that she had, compare that to some

of the plaintiffs in the States like Rhonda Cooley, the

numbers are completely different, whereas the injuries

are so similar.

Fenna Zielinski is really just a sweet person.

Dr.

Bibeault actually testified that the accident has been

good for this family, because now Gunter Zielinski

appreciates her more and is not so angry at her.

was a shortcut.

angry about was the whole situation.

tremendous guilt.

Which

Because what Gunter Zielinski was He had and has

His guilt is that his sister was on the bus -- or

the Duck, and Fenna was on the Duck, and he couldn't

help either one of them.

He didn't know what to do.

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It was beyond what he could possibly do.

Their lives have changed dramatically.

sold their house to get to a smaller house.

over her -- most of her chores.

working.

6 7 8 9 10

They have He's taken

She had to stop

It's the human things that count.

All right.

Let's go ahead and then move on to the

bus. "They've laughed to shield their crying, then shuffled through their dreams and stepped and fetched a country to write the blues with screams."

When the Duck did not hit the centerline and ran

into the bus, everybody that died was from the bus.

Everyone that died was a student.

survived that are students, with the exception of

Mr. Clouse.

of life that would prepare them for this.

The people that have

They're young, and they have no experience

This isn't like being enlisted in the Army and going

out to war and knowing that you're going to war.

are excited people meeting new people for the first

time, having that energy of young students, meeting new

friends, a new life experience having coming to

Seattle, great place, beautiful, beyond imagination.

How happy everybody was to get on that bus.

at the Gas Works Park.

Total happiness.

Their joy

And then in an instant, the

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These

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disorientation comes and then darkness.

different than if they had been prepared for anything

remotely to what this would be.

Donald Clouse.

Donald Clouse was the bus driver all

of us wanted to have.

that steering wheel.

inch of the way.

quiet person.

It's so

His hands were on both sides of He was checking his mirrors every

He was a professional, dedicated,

After this incident, he shut down.

His wife would

serve him dinner, and he would eat it with his head

down.

through counseling through work.

back and start driving again, because they'd taken a

mortgage out on the house for the grandkids' education,

and they needed it.

He completely stopped talking to her.

He did go

He had to try to get

As soon as he was able to start driving again, he

stopped his counseling.

just can't even imagine what he was going through.

Driving a bus after this, I

Seohee Bak, 20 years old, from South Korea.

She was

there with her then best friend.

friends.

seat that if they had sat in, they would be dead.

ended up sitting in the back of the bus.

Kang at the time was her best friend.

No longer best

She and her best friend were sitting in a

Ms. Kang had a nose surgery gone wrong.

They

Min Kyeong

She went

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back to Korea to have it fixed.

numbers, you will notice there's nothing for past

medical bills.

didn't have medical care.

Another example.

If you look at her

Didn't mean that they

Foreign country.

When she came back, she couldn't stand the thought

of going to North Seattle College and went to Western.

She invited a family member, because she cannot be

alone.

be alone for a minute.

Her younger cousin lives with her.

She cannot

She's one of the people with

one of the more severe mental health issues.

had probably some preexisting vulnerabilities.

an eating disorder.

Mazda Hutapea.

She had

Mazda was the youngest person in our

group.

had turned 18.

I think maybe she was still 17.

18.

She also

She had barely turned -- I don't know that she Was she 17?

Right around 17, 18 maybe. Maybe 18.

Just barely

She turned 18.

Her sister lived here.

She lived with her sister,

she went to North Seattle College, and she had already

been there at the time this happened.

So her coming here was because she was a student

ambassador.

She had a paid position at North Seattle

College.

special verdict form, you will see that you're not to

apportion any liability for the State.

That's why she, in her verdict -- in her

She had a paid

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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position as a student volunteer at North Seattle

College.

She was sitting two rows behind the bus driver, had

just handed Yu Zhuang, I think, some Oreos when the

crash happened.

stairwell, landing with Arlette Fellores, who was

another teacher there, into the stairwell.

8 9

She flew through the air into the

As soon as the bus stopped, she got up or tried to get up to help people.

She has an enormous guilt for

not being able to help people and holds herself

partially responsible, because she was supposed to be

taking care of the students as student liaison.

did not know what to do, and she did not realize she

had been badly injured.

everybody else.

She

She was only worried about

When she went to Harborview, she was fortunate that

her hip fractures did not require surgery.

able to go to school, from the nursing home that she

had to go to, in a wheelchair, and then crutches, and

then wean off of them.

primary continuing concern, as is her social issues.

She was

She has back pain is her

Now, let's talk about social issues.

When you're

18 years old, 19 years old, and you're in college and

you love people and have always loved people and have

been a little social leader, and you're still trying to Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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do that, but now you want to stay home all the time

unless your sister drags you out, things have changed.

She is scared and anxious and worried about her grades,

about driving, about concentrate, about sleeping.

is just one worried, anxious, young, young woman.

6 7

Your Honor, I'd like to finish Ms. Hutapea and then take a break, because I'm doing really great.

THE COURT:

MS. KOEHLER:

10 11 12 13

All right. Her injuries primarily were in the

pelvic region. I think that we should just go ahead and stop there, and we'll continue with where we are. THE COURT:

That's fine.

Ladies and gentlemen,

leave your notebooks and notepads on your chairs.

downstairs, and we'll see you in 15 minutes.

16 17 18 19

She

Head

(Afternoon recess was taken.) THE COURT:

Please give your attention again, if you

would, to Ms. Koehler. MS. KOEHLER:

I'm really glad that we took a break,

because this is exhausting.

There are so many

plaintiffs involved.

two plaintiffs in a case.

exhausting for you not only to have to listen, but for

us to try to honor everybody as individuals and not

lump them together into just units.

Normally we have, like, one or And to have 40, it's so

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So we're getting close to finish, but at the same

time, I don't want to apologize for the fact that so

many people were injured in this terrible crash.

just were.

They

So thank you for bearing with us.

Yuta Masumoto was an extremely physical young man

who found enormous pride and joy and personal identity

in being a physical young man.

Japan to learn English and go to school, as so many of

the people who were on this bus, to better themselves

10 11

He was coming here from

and have a better chance for the future. He is just so different now.

Yuta's body,

unfortunately, was in the path of the prow of the Duck.

So how the kids sat was Mazda, followed by Yuta,

followed by Phuong Dinh, followed by Yvonne Putradanto,

HaRam Kim, Claudia Derschmidt.

along the side of the bus were all killed.

So Phuong Dinh was more crushed than Yuta, Yuta was

more crushed than Mazda.

zone almost died.

The last three people

But everybody in the impact

So Yuta was seated right on the window side, as I

said, behind Mazda and in front of Phuong Dinh.

And

the injuries that he sustained have really -- have

definitely changed his life.

rods and screws in or having them removed to see if

that will relieve the pain.

It's not just a matter of

It is the identity of his

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life. He, according to the psychologist, maybe doesn't

have as much emotional insight as someone my age.

of these kids don't.

this either.

happened.

Many

He doesn't want to talk about

He doesn't want to acknowledge that it

He wants it to go away.

But like so many of the kids and people that have

permanent injuries, just getting up every morning is a

constant reminder.

Not being able to get comfortable

at night is a constant reminder.

want you to go do what they are doing that you used to

excel at and beat them at is a constant reminder.

Having friends that

He smiles, and that's a cover-up.

Should Yuta

Masumoto be punished for not seeing the psychologist?

Do we blame that victim?

We do not.

How do you measure that?

How do you value that?

look at the medical bills, which in this case are

$341,000 in the past.

at Harborview.

that?

through.

He did get most of his care here

Is that how you measure something like

It has nothing to do with what he's going

Now, according to Dr. Olson and Mr. Choppa, his

problems are going to happen in the future.

best scenario where maybe he'll be able to access

counseling and deal with these issues now, and then Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

There's a

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there's a bad scenario where he keeps trying to forget

it and not deal with it because it's human avoidance

and too painful.

Regardless, those conditions, the physical

conditions don't get better with time.

perfect egg, and now he is a cracked egg, and he will

always be.

many more years do we have for someone that's 20, 21?

Almost 60 -- almost 60 more years of life?

He was a

And we don't have the chart up there.

How

So when we're looking at Mazda Hutapea, Yuta

Masumoto, Phuong Dinh, we have to go forward.

clock now has to go forward.

time.

that, because they don't get to come back ever again to

say, look what happened to me 30 years later.

how I'm doing now.

So our

We don't get to turn back

We have to turn forward time.

We have to do

This is

So as jurors, you're able to listen to everything

you heard, see everything that you've seen, and use

your experience and judgment, knowledge of how things

work to think about Yuta Masumoto aging as a person who

cannot physically do what he used to do at an

extraordinary level.

Our next person is Kwang Park, not to be confused

with the Park family, Lee family.

He was another one

of those students that had come, he'd actually been Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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learning, and he was another student ambassador of

sorts, and he was in charge of the Korean section.

he feels tremendous guilt because HaRam Kim, another

Korean, was sitting in the zone of impact, not at the

back of the bus with the five other Korean students

that he was with.

He feels terrible guilt about that.

And

He wanted to be

a professional baseball player, was extremely athletic.

And now, even though he didn't break any bones, the

combination of mental and physical -- and it's always a

combination with these people; it's always been

physical and mental -- he just doesn't want to.

doesn't want to be outside, he doesn't want to be with

people, he doesn't want to play on teams.

scared.

of his mind, and he wants to pretend it didn't happen.

He doesn't want to.

Phuong Dinh.

He's too

He wants to put this out

She would have been seated one row

back and would not be here to testify.

She was behind

Yuta Masumoto and in front of Yvonne Putradanto.

she woke up and was able to see a little bit, the first

thing she saw were the white bones of her leg sticking

out from the skin.

she woke up, and then she passed out and then she woke

up, and then she passed out.

her life.

When

And then she passed out and then

And really, that's been

How many surgeries have you had?

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I don't

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know.

than seven surgeries during the rest of her life.

I stopped counting at seven.

She will have more

She has a total hip replacement at age 21.

It will

last for 15, maybe 20 years, depending upon how little

she uses it.

at all and have it last longer, or she can try to be

active, knowing that it's going to last shorter.

would you rather do when you're 21?

shorter, she'll need four more.

She has two choices.

She cannot use it

Which

If it lasts

If it lasts longer,

she'll need three more in her lifetime.

Each time she has to have that surgery, she will

lose time from work, from life, and she will risk bad

things happening.

Unfortunately, that hipbone is connected to her knee

bone, and her knee and tibia are all messed up.

quite artful with her hair, though.

The draping in front of that scar.

She's

Have you noticed?

The fractures of her bones were so traumatic that

even though she was young -- and the younger you are,

the better chances you have of healing.

she was very young, her bone died.

The blood vessels were just destroyed.

survive.

the ball of the joint collapsed.

The bone died.

Even though

Avascular necrosis. They couldn't

The round part of the -- of

And despite going to many doctors to see if she Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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could possibly avoid it, she had a total hip

replacement at age 21.

hip replacement is, from here to her midthigh and then

how high the bottom fracture line goes, you can see

that she has -- she only has a couple inches of bone in

that leg that are actually hers.

If you look at how long that

Her knee the doctors already want to operate on, and

not just to try to get it to move again.

They need to

do some operations, and they've told her, her

understanding is, it should have started happening last

summer.

prolonging it.

can keep it.

becomes intolerable.

She doesn't want to do it.

She wants to keep

And that's fine with the doctors if she Then keep it as long as you can until it

At a minimum, best-case scenario, she doesn't have

to have her first knee replacement surgery until she's

40.

Depending on how long she lives, she'll need maybe two,

maybe three.

Same periods of time.

15 years or 20 years.

Maybe not three.

She'd be old.

She was diagnosed with PTSD at Harborview.

So no

one's going to dispute that.

that she should have recovered from it a year later.

This is why the labels of whatever it is really we

shouldn't get bogged down in.

Instead, the dispute is

Whatever she has that's causing her to still have Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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nightmares, that causes her anxiety and distress, fear,

worry, concern, it is what it is.

behind in school.

year behind in school.

expected or wanted it to be.

concentrating and dealing with all of her doctors'

appointments and recovery.

8 9 10

She's two years

We were hoping it would only be one Her GPA is not as good as she She has such a hard time

Not only do you have to go through the surgeries, you have to go through PT.

At home and at clinics.

Should we blame her for stopping treatment at

Harborview psych because she was trying to get back to

school a year late?

The thing that strikes me about these stories, and

we're almost -- we're still -- we still have some left,

but we're making very good progress.

are the foreign students, international exchange

students or international students.

foreign country.

were welcomed to this country with this.

HaRam Kim.

And especially

They're in a

English is a second language.

They

"She walks in beauty, like the night of

cloudless climes and starry skies; and all that's best

of dark and bright meet in her aspect and her eyes."

Her value is limited in our state, and her value

symbolism is what she would have earned minus what she

would have consumed.

She's the only person that's

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limited like that.

the defense experts, that value would be minus.

For having her life taken, which is offensive.

Now, if we were to listen to one of

She wanted to be a doctor.

She was an excellent

student.

from a family of pastors.

in was to give back.

And she was going to do that, if she had been not

killed.

She loved people.

She was giving.

She came

That's what she was raised

That's what she wanted to do.

In the instructions, you're allowed to make logical

deductions.

never know what HaRam Kim was going to do any

differently than we know now, because she died.

Because in 20, 30 years from now, we'll

Minje Sa.

Minje Sa was seated in the very back of

the bus with Jae Won, Kwang, Min Kang, and Seohee Bak.

The five South Koreans in the back.

have PTSD or whatever you call it.

he doesn't want to be thinking about this.

want to have to worry about this.

go to sleep thinking that he's going to have a dream

about it.

asleep.

He doesn't want to He wants to be -He doesn't

He doesn't want to

He doesn't want to have a fear of falling None of these people want this.

Ayane Sawada.

Ayane Sawada never broke down when

examined by Dr. Olson.

like that remotely.

He didn't describe anything

She participated just like

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everyone else did, as best as they could in the many

hour-length examination process.

about this.

overwhelming for her.

She could not talk

She cannot talk about it.

It was

And she let us see it.

That's the second thing that strikes me about

people, especially the students on the bus.

want to talk about it, but they were willing to let the

jury see their pain because they trusted this process.

They don't

She was seated across from Yuta Masumoto, not in the

direct zone of the hit, and tried to help him and

couldn't really.

cried for Yuta.

She didn't cry for herself.

She's working in a hotel as a receptionist.

She

went back home and has not continued to thrive.

wanted to go home to be with her mother directly after

this happened.

person that the defense would use a mitigation

instruction on.

And who can blame her?

She

She's another

Yu Zhuang was seated in the very front of the bus on

the other side of the driver and saw everything happen

as it was happening.

severe psychological condition.

that condition was before this happened.

obviously in school and functioning.

Dr. Olson told us that he has a It is not known what He was

Well, he still gets good grades, he lives with his Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12335

mother now in California.

to what happened.

had more severe reactions than others.

severe reaction.

He had a terrible reaction

There was some -- some of the people He had a very

Min Kang had a very severe reaction.

And that brings us to Claudia Derschmidt.

Claudia

was a student because she came to Seattle, and her

son -- her youngest son Felix was going to go to

Roosevelt as an exchange student.

searching through the students getting on the bus,

10 11

And when they were

guess who we found? She was a lovely mother.

In Austria, they take four

months off work to raise a child.

that with both of her sons.

meant four years.

bond when you're able to spend that much time raising a

child by yourself, with your husband, of course, at the

time, but I mean without having them go into daycare.

A very, very close relationship she had with her sons.

She was able to do

Did I say four months?

Four years.

You do get a special

"Who sat and watched my infant head when sleeping on

my cradle bed, and tears of sweet affection shed?

mother.

"When pain and sickness made me cry, who gazed upon

my heavy eye, and wept for fear that I should die?

mother."

Her relationship with her sons was really special. Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12336

Moritz was a little older.

and he has a girlfriend.

his loss of his mother.

girlfriend, maybe getting married and having his mother

become a grandmother, the wise counseling of having a

mother is lost.

He'd gone off to school, That doesn't change at all

Showing his mother his

Felix Derschmidt, a different story.

time.

sleepovers.

15 at the

So close to his mother that he didn't even go to Unusually close with his mother.

When she

wanted to come to the United States, he came with her.

He was inseparable from his mother.

And with her gone, there are concerns.

These boys

don't talk to their father about this at all.

painful.

It's too

What would they say?

Do you punish them for not getting counseling?

you punish them for losing their mother and not knowing

how to cope?

and love?

She's only in her 40s.

How do you value the loss of wise counsel

How do you value so many years of that?

There were two other vehicles involved, or two other

people.

Tam Nguyen was on bus number two, and he

organized this whole event for North Seattle College.

He was sitting -- standing right in the front of that

bus.

blames himself.

We saw the prior picture as it got hit. Felt enormous stress.

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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What are you supposed to do?

He argued and ordered

that bus driver of number two to let him off and ran

out to try to help.

but that's not what this case is about.

And he did bang himself around,

He was off work for a year.

He did have counseling

so that he could get back to work.

He has not changed

from the counseling.

He's functioning a little bit better, and that is all.

Simon Lee was in one of the other vehicles that was

He is still a different person.

caught up in the hit.

He was able to pull off down the

road.

sister, and ran back to help.

what can you do?

that situation.

He was with his niece and, I think, daughter, And like Mr. Nguyen,

Again, tremendous guilt for being in

My nose is running.

Sorry.

So we're going to talk about validation that's in

this case, and that will come through the verdict form.

The special verdict is long.

Do we have it ready?

So the way that trial works is you have to sit here

and listen to me talk to you, and you don't get to talk

back to me.

down and talk and communicate like regular people and

express opinions and get feedback and, you know, talk.

We don't get to do that.

We don't get to sit around a table and sit

It's one-sided communication.

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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And that's hard.

Not only for you that has to

listen to it, but us that has to try to communicate

with you, but yet we're only doing part of the

communication.

The special verdict form is long in this case, and

it's long for two reasons.

defendants and so many causes of action.

there's 40 plaintiffs.

One is, there's so many And two is,

We never wanted to just categorize the plaintiffs.

Oh, there's the deceased plaintiffs, and there's the

plaintiffs with broken bones, and there's the

plaintiffs that -- we never have wanted to do that.

feel that that is disrespectful and that what happened

to everybody was very unique.

And it's the same with valuing their claims. How do you do that?

It's

very difficult.

I mean, how do

you do that?

about that before we go through the special verdict

form.

And I want to talk to you a little bit

You can keep it up, though.

How do you decide what you're going to ask a jury to

do?

A, you want it to be rational; B, it's a

reflection upon you so you want it to be credible; and

C, you don't want to be disrespectful.

be right.

You want it to

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To do that in this case involves more than just

pulling a number out of the air.

counting up the number of rib fractures or how many

hips were replaced or how many people passed away, how

many lives were impacted.

It all is more than that.

It involves more than

Because it all starts

back with what happened and why did it happen, and

there's a relationship.

relationship between mental and physical health injury.

Just like there's a

There's a relationship between what happened here and

how do you value that.

at them separately.

It's connected.

It would have been different if this was just the

case of an unexpected natural disaster.

be different.

You can't look

There's too much fault here.

disaster here.

This was preventible.

It would just

There's too much

There's too much death and injury here.

MS. BUCHANAN:

THE COURT:

MS. KOEHLER:

It should not have happened.

Object to the form.

Overruled. So how do you think about numbers?

Well, one way is to think globally and then break it

down.

comfortable.

then add it up.

I did that.

I'll share that with you when I'm

Another way is to do it individually and There's no right way.

There's no

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1 2

wrong way. But in looking at what happened, the magnitude of

it, the depth of it, the breadth of it, the horror of

it, the preventibility of it, the inexcusability of it,

there's a relationship.

It is difficult to value life, but it's not

impossible.

We value the impossible all day long.

People pay hundreds of millions of dollars for a piece

of art or for a pro player for several years of pro

athletics.

as a society without blinking.

We pay a lot of money for precious things

Human life shouldn't have to be valued, because it

should never be taken away like it was here.

was taken away, and that's why we're going to value it.

What's it going to be worth to the people that had the

loss?

There's a danger.

There's several dangers.

But it

One is

that you don't recognize it enough and that the people

that have been so injured here will be injured again.

We don't want that to happen.

Your Honor, I didn't even see what time it was.

THE COURT:

MS. KOEHLER:

THE COURT:

MS. KOEHLER:

It's about ten past 3:00. Did I take a break already? Yes. There you go.

Then I'm good.

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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time, your Honor.

THE COURT:

MS. KOEHLER:

just took a break.

Okay. I'm delirious.

I completely forgot we

I'm so sorry.

So the preciousness of life, and then you go from

there.

inconsistencies when we go through the process.

There's going to seem to be some inconsistencies on the

question of death, in particular, because HaRam Kim's

10 11 12 13

There's going to seem to be some

parents aren't able to have a legal claim here. MR. PUZ: this line.

Your Honor, I'm just going to object to It's inappropriate.

THE COURT:

Overruled.

It's not unreasonable to

explain how the law affects the amount of damages in

terms of the categories the jury can consider.

Back to you.

MS. KOEHLER:

So let's go through the special

verdict form, which is apparently right behind me.

have your own, and you can follow along with yours.

So the very first question is, was Ride the Ducks

Seattle negligent by breaching the duty of a common

carrier as to its Duck 6 passengers?

23 24 25

You

So there are two standards.

I didn't even talk to

you about one of them. Ride the Ducks Seattle, because it was a service for Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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hire, people paid to get on it, that made them a common

carrier.

the people that paid money to get on them called common

carrier.

So they have a heightened sense of care for

So the first was, were they negligent by breaching

the duty of a common carrier as to its Duck 6

passengers?

8 9

And the blank would be by not inspecting the vehicles right before they broke, by not listening to

captains when they said that there was something wrong

with the vehicle and doing a thorough inspection, by

not doing 80 percent of service bulletins sent to them,

by not having enough mechanics on duty, were they

negligent.

Answer, yes.

If you say no, then you would skip, but you're

17 18

saying yes. Number 2.

Was their negligence as a common carrier

a proximate cause of injury to the plaintiffs who were

Duck 6 passengers?

Again, they don't owe the duty to the bus under the

standard.

Yes.

As to plaintiffs who were not Duck 6 passengers, was

It's just common carrier.

Ride the Ducks Seattle negligent to the bus? Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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So were Ride the Ducks Seattle's actions in putting

Duck 6 on the roadway when it had not been adequately

inspected, tested or insured to be roadway safe under

all the facts of this case, were they negligent with

respect to the bus people?

I hope that makes sense.

So they're either common

carrier negligent or regular negligence to the bus.

The answer should be yes.

Number 4.

Was Ride the Ducks Seattle' negligence a

proximate cause of injury to plaintiffs who were not

Duck 6 passengers?

Were their actions in not acting reasonably

causative of the bus crash?

Mr. Lee.

Next.

And also Mr. Nguyen and

Was the State negligent?

Should there have

been some better safety effort made with respect to the

Aurora Bridge that, if it had been made, in particular,

a median barrier, would have redirected the Duck away?

Was the State negligent?

That was the first question.

Did they follow all the standard of care in

recognizing that the bridge was not functioning as it

should have, given how much daily traffic was on it as

early as 1993, and taking no steps since then to ever

change or fix it?

Number 2.

Was the State's negligence a proximate

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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cause of injury to the people who were the Duck

passengers?

and the bus.

They're breaking it down between the Duck

Yes.

Was the State's negligence a proximate cause of

injury to the plaintiffs who were not Duck 6

passengers?

8 9 10

And that would be everybody on the bus, and then Mr. Nguyen and Mr. Lee. And the same set of questions for the City of

Seattle.

a proximate cause of injury to the Duck passengers and

those who were not?

Was the City negligent?

And then comes the long one.

Was their negligence

So remember, we talked

about the Product Liability Act.

construction, design, failure to issue warnings, and

those things.

So they weren't all "ands."

And that was for

You just have to find

that they did one of those.

improperly, or they constructed it improperly, or they

failed to warn when they sold it, or they failed to

adequately warn after they sold it.

If they designed it

So the first one is, did they supply a product that

was not reasonably safe in construction at the time the

product left?

The answer, absolutely.

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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Number 2.

If you answered yes, then go on to the

next one.

Was this breach of the Product Liability Act

a proximate cause of injury to the plaintiffs?

Yes.

Let me just say, if you answer no to these

questions, they're going to start skipping you, and

you're going to skip all the way to the end, and it's

over.

9 10

That means that you voted for the defendants.

They should all be yeses. Was this breach of the Product Liability Act a

proximate cause of injury?

for each single one.

way, and was that a proximate cause.

14 15 16

They're going to say that

So it's always did they fail this

So unsafe product design, failure to provide warnings.

I'm going to stop there.

Valuing the 40 plaintiff cases was not -- it's just

not something in the common experience.

that.

We don't do that.

We don't do

We're not used to that.

So I'm going to tell you how we did it, and then I'm

going to show you the numbers, and hopefully you'll see

our -- how we generally did it while honoring the

individuality of each person.

First of all, the numbers for things like medical

bills and wage loss, if it didn't meet a high enough

threshold of like 50 or 60 thousand dollars, we don't Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12346

even include it.

It's just too nominal.

even include it.

So a lot of the numbers that you saw

on the charts that Mr. Ackley was showing you earlier,

they're not even in here.

So we don't

Secondly, we looked at the experience of being in

this crash.

to live with this memory for the rest of your life, and

it has changed you fundamentally as a person, and it is

intertwined with who you are, who you will become, who

you've been as a young person, and for an older person

for the precious remaining years of your life, you're

never going to be able to get this out of your mind,

and it has affected your relationships and everything

about you as a human being.

If you were in this crash and you're going

We've come up with a baseline.

And we believe that

everybody that lived through this has that baseline,

with the exception of two people.

that we don't have that baseline for are Mr. Nguyen and

Mr. Lee, because they weren't in the vehicles that were

hit and where people thought they were going to die.

And the two people

They saw it happen, they rushed to their aid, they

suffered because of what happened, but they didn't

think they were going to die.

although Mr. Nguyen was caught up in the hits, but so

theirs is lower.

They weren't -- well,

But everyone else, the baseline is

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$3 million.

That's the baseline.

Mr. Nguyen and Mr. Lee are $2 million.

And then depending upon the severity of the injury

for the other issues, it's going to change

dramatically.

number should be.

It's no secret, Mr. Ackley.

and forth, and I let him win one.

I've been struggling over what that I thought it should be $5 million. And I've been going back

I really -- I really struggle over it, because I

don't know that $3 million is the right baseline.

still think in my heart it's 5.

So let's start going through.

Well, we've already

done this one.

number 10 is for the people that are, that you did mark

the box yes, they're at fault.

unfortunately, they only let you go to 100 percent.

The way I did it, it was about 175 percent.

you to 100 percent.

I showed you on the chart, question

As I said before,

They limit

And so 10, 10, State and City; 30, Ride the Ducks

Seattle; and 50, Ride the Ducks International.

our take on it.

That's

And then with respect to Mr. Nguyen and Ms. Hutapea,

because the State can't be in that equation because of

their employment at the time, we just split the

10 percent of the State and just changed it so it was Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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33, 13, and 54. And now we begin.

What do you find to be Seohee

Bak's damages?

out the small nominal amounts.

the symbolism of the baseline is what they went through

that they should never have had to go through that,

recognition that it's changed their lives for the

worst, letting them know that we see and care and

appreciate that and acknowledge that.

There's only one line, because we took

Rhonda Cooley.

What's important for

So hers is a little bit different.

Her damages exceeded that kind of threshold that I told

you, which was 50 or 60 thousand dollars.

undisputed amount -- that means the defendants agreed

that they would agree to that amount with us -- was

$69,000.

received almost double that in medical care.

well, additional medical care.

plus this amount.

defense.

Her

We provided evidence that she's actually So --

It's really this amount

So $117,473 has been denied by the

Past lost earnings in dispute and future economic

damages of 1 million 1.

will recall, are lost wages, the need for any kind of

household services.

24 25

And economic damages, as you

Those kind of issues.

The non-economic damages of Rhonda Cooley we believe are $18 million, because she is beyond the baseline. Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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There are approximately nine people that are way beyond

the baseline here.

Next.

JoAnn Gerke, again, undisputed amount, 44,000.

The

disputed amount, an additional 65 that the defendants

don't believe is owed.

lost earnings.

You've heard testimony -- sometimes there will be a

blank, and even if it's not filled in, then you can

Future economic damages.

Past

We don't have a number in there.

fill it in.

don't fill it in with anything; if you heard some

testimony and you can make informed decision, then you

can put that in there.

If you don't believe it's anything, you

Future economic damages, those are from

Mr. Partin -- excuse me, Mr. Partin, no.

and Dr. Tapia.

than Rhonda Cooley since she didn't have a total hip

replacement.

Don Clouse.

Mr. Choppa

Her economic damages are a little less

Let me say one other thing.

If you can

put up on the screen here the mortality tables while

we're doing this, or just right now.

looking at general damages, and non-economic damages

are general damages, you're not looking just now.

You're looking at for their entire remaining lifetime.

So when you're

So for Ms. Cooley and Ms. Gerke, Ms. Cooley was in Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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her late 40s when this happened, Ms. Cooley -- Ms.

Gerke was in her 50s, and so you break this down over a

long period of time.

Don Clouse.

That's all I'm saying.

His non-economic damages, we felt, were

higher than the baseline.

to.

who's just fundamentally withdrawn and changed as a

result of this incident.

non-economic damages should be slightly higher at 5

He's working because he has

He has -- he's a very quiet and private person

So we believe that his

instead of 3.

Did you get the life?

So you all see this chart, which is -- you remember

what number it is?

Jessica?

number.

Oh, perfect.

Can you go down a little bit,

Just so we can see the jury instruction

THE COURT:

It's instruction 53.

MS. KOEHLER:

So in the case of Mr. Clouse, he's got 12 and a half

Thank you, your Honor.

53.

more years.

almost 7 years.

account when you're looking at non-economic damages.

For example, Ms. Bak, she has 56 point Those are factors you should take into

For Mr. Clouse, even though he doesn't have that

many years, they're precious years because he's 71, and

he should be -- those are his golden years.

not have had to have dealt with this in his golden Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

He should

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years.

Let's keep going.

Claudia Derschmidt.

This is the calculation of the

economist that's almost -- it's very close one to the

next, honestly.

her job as a teacher minus what she would have

consumed.

boys.

put it back to the chart?

$321,000.

That's a formula based upon

And so, then, the bigger question is the

The loss of their mother -- oh, sorry, can you

Claudia Derschmidt was 49 years old, and her life

expectancy would have been 33 years.

teenagers when she passed away; one 15, one 19.

one a very young 15-year-old.

Derschmidt is profound.

number.

So her boys were And

That loss of Claudia

It is not a single-digit

It is a large number.

Now, while Felix Derschmidt -- and we put it at 16

for Felix Derschmidt and 16 for Moritz, and even

though -- oh, it's 14.

what happened.

It should be 16.

I don't know

Even though the testimony is that probably Felix is

the one suffering more, no son should be given greater

acknowledgement for the love of their mother than the

other.

They would never want that to happen.

Next.

Phuong Dinh.

Phuong Dinh's injuries are a testament

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to Harborview that they managed to take care of Phuong

Dinh.

why she wants to stay in Seattle?

closer to her doctors.

her second home.

I don't know if you caught what she said about That it's to be

Because Harborview did become

Her injuries will last a lifetime.

better from them.

Masumoto, she was extremely physical.

strength of hers and a joy.

She will not get

They're life-altering.

Like Yuta

That was a

Yes, she would never have

been a pro basketball player or even probably on any

college team, but being able to run down and shoot

hoops with her friends is a joy that she doesn't get

anymore.

Her damages were difficult to contemplate, because

her life expectancy -- her life expectancy is almost

60 years.

only have to turn it forward.

We don't get to turn back time for her.

And that's difficult.

Now, the defense -- not only for her, but for all of

the plaintiffs -- they pick away at what's needed.

Oh,

she doesn't need a home modification.

really need a wheelchair, even if Dr. Kleweno says that

she will in 60 years.

need that.

someone that's this gravely injured in 60 years,

40 years, 10 years from now.

She doesn't

She won't need this, she won't

That's pretty bold when you're looking at

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She's amazing that she's able to do what she's been

able to do, and she's still two years behind in school.

She wants to become a lawyer or at least go to graduate

school.

How long is that going to take her?

So her past medical care is $613,000.

Her future

economic, according to the experts Dr. Tapia, Tony

Choppa in particular, are a little over $5 million, and

that's primarily for her surgeries.

assistance, maybe for some vocational help.

For household

I mean, she's going to school with -- she has an

EI -- she has to have accommodations already.

Case

management.

And we shouldn't make her have to worry about her

future, especially when all of this was caused by the

defendants.

It is a lot of money to keep her going.

Nobody chose this.

The next.

Jennifer Emery, a little bit higher because she was

Li Liu Edwards.

Baseline.

a fragile egg.

emotional issues, and this really sent her over the

edge.

Susan Gesner.

She already had some preexisting

She had some -- a lot of physical

issues, and as well as the -- even though we're not

claiming her medical bills.

higher also.

So we put her a little

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Tim Gesner, baseline.

Kenichiro Hiraoka.

This we left a blank.

And then

the baseline.

whether his fear of blood is going to affect him in the

future.

that it will.

quantify that in your future economic damage note.

8 9

And the blank is because it's unknown

We believe there's a very strong likelihood If you believe that, then you can

Sonoko Hiraoka.

She's one of the people that,

despite her level of injury and hospitalization and

then nursing home stay, the only bills you see are from

the U.S.

is 58.

non-economic damages claims we have at 21 to reflect

the nature and magnitude of her injury.

They do not reflect anything. She has 25 more years of life.

She is -- she And her

Again, you know, sometimes I worry, like, oh, I

didn't describe it long enough, but then I know that

you've been here, and you've heard all of this and seen

all the pictures and known what all these people have

gone through.

So Toshihiko Hiraoka.

His concussion and related

symptoms that have hurt him at work have been difficult

to quantify.

would allow you to do that if you believe that he

has -- had to hire someone to assist him at work and

that that has happened and will happen.

You've gotten enough information that

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And most importantly, his testimony that he's going

to be retiring earlier than he would have.

Five years

versus ten, I believe.

that because she worked for him, and when he retires,

she will also.

Sonoko Hiraoka is also tied to

Yousuke Hiraoka, we put him at three.

Mazda Hutapea, her past care was 81,000.

economic damages are based upon Dr. Tapia and

Mr. Choppa.

Baseline. Her future

Let me just say two more things about this in

looking at some of these economic projections and

comparing it to the defense.

the medical doctors that supported the positions of

Mr. Choppa, because Mr. Choppa is not a medical doctor.

He's a life care planner.

tells him, and then he quantifies it.

The plaintiff brought in

He takes what the doctors

The defendants brought in three life care planners,

and there was actually a fourth that they talked about.

With respect to Ms. Dinh, that life care planner based

his analysis on a doctor that no one of us ever saw or

heard from.

So in looking at the analyses of the experts, we

have to look at what they did and the rigor of what

they did.

based upon any medical doctor, then that's

If they gave you opinions and it was not

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insufficient. With respect to Mazda Hutapea, the future economic

damages are 3 million 200.

different.

used to.

we may not appreciate, because it seems like she's

doing well, but she feels she could be doing way

better, and she's been complaining about it since early

on.

And that was because she is

She is not able to concentrate like she She is having difficulties in school, which

It's all in her medical records.

Whether that problem is due to the fact that she

doesn't sleep well, she's worried and anxious and

agoraphobic and has other anxiety related to this

crash, or whether it's because she still has effective

concussion doesn't matter for determining that there

are future economic damages here.

damages we have at 17.

And her non-economic

Sarah Johnson we have at baseline.

Min Kang.

Min Kang, again, she's the student that

had to bring in a relative because she can't be alone

at all.

There was more question marks about how this is going

to affect her future and her future goals as a young

person.

$5 million.

Her -- she's a little bit more question mark.

So we have her higher than baseline at

The estate of HaRam Kim.

The healthcare expenses

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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that were incurred at Harborview and then the net

accumulations, the formula that we talked about.

is if she was able to be -- to have lived.

lived and gone on and accomplished her dream of

becoming a doctor minus an amount for her consumption.

We came up with 3,11.

However, let me say this.

This

If she had

You all by now are

experts on how to do present net -- present -- reduced

to present value.

This is based upon the assumption

that she would work until the age of 62, which seems

fairly young.

decide that she could have worked longer than age 62,

you can multiply out and add some more years of

worklife in there for her.

And so if you and your reasoned opinions

Sang Woo Kim.

Baseline.

Young Ki Kim.

Baseline.

Yunsu Kim also baseline.

Young Yee Lee.

Just because she endured the blood

clotting, and she does seem to be really still

struggling severely, we upped that back to 4 million.

Jae Young Park.

Baseline.

Jin Young Park.

Baseline.

Simon Lee.

24 25

This is one of the exceptions, because

he was not in the vehicle. Alena Lutz.

We have him at 2.

Baseline.

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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Yuta Masumoto, his past medical care was $341,000.

His future economic damages are not completely known

because of the ways that it can go.

health condition as a result of this crash, in addition

to his physical.

to expect him not to have a mental health condition

when his physicality has been so profoundly affected

would be to deny his reality, which he's doing.

doesn't want to deal with the mental and is trying to

He has a mental

They are very tied together.

And so

forget about even the physical.

It's going to come to a head, and when it does, it's

going to be reflected in his ability to perform well in

his job.

Mr. Choppa.

So that was testified by Dr. Tapia and

We believe his non-economic damages are second only

to Phuong Dinh, I believe, because even though he

didn't have as many broken bones and as many needs or

as many future surgeries as she does, just the profound

nature of how this has affected him has to be

acknowledged.

Tam Nguyen, another exception.

And he's an

exception because even though he was not on the bus, we

felt that because he was the organizer and was so

absolutely devastated by this, so we had him at

$2 million and then upped it.

So it's at the baseline,

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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even though he wasn't on the vehicle, because of his

unique stature.

3 4

Kwang Park.

Her medicals were right on the border,

so we included those -- his, I'm sorry.

Minje Sa.

Ayane Sawada.

Kathy Sheldon.

8 9

And baseline.

Baseline. Baseline. Baseline.

As you can see, we just

didn't put in the medical bills under $50,000. Richard Sheldon, his medical care was 110,000.

was working when this happened.

He had to take

considerable time off.

primarily of this and -- but he was also very severely

injured, along with his really, really bad emotional

reaction to the crash.

with a larger amount of 10.

Ron Sheldon is baseline.

Terry Sheldon is baseline, even though I kind of

He did retire as a result

So he's also one of the people

struggled with that, because she seems to me one of the

more wounded people and is an older person, although

she's not -- she and Kathy Sheldon, still really

concerning.

And then Yu Zhuang.

Because his -- his mental

health condition is so much worse, we did increase that

to $4 million.

lot -- some of the future medical damages that you see

Also, we included in these there was a

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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there are for mental health counseling. So for him and Minje -- sorry, Min Kang, their

future counseling amounts were high enough that we put

them in there.

Fenna Zielinski, her past medical care is way more

than $113,000, but that's the U.S. amount.

And then

her future economic damages is also really compromised

because for the same reason that we can't get the past

medical expenses in, the future -- all the future

expenses similarly, since she lives in the Netherlands,

have not been included.

her non-economic damages are 19.

Gunter Zielinski.

Except for a little bit.

That's our...

We have him a little bit higher

than the baseline because of the loss of consortium.

And the loss of consortium issue, especially with

the more seriously injured couples, is definitely an

issue that you should be compensating for.

loss of the love, care, and affection of the spouse.

19 20 21

Is that it?

That's the

And at the end, you sign and date and

turn it in. That was a long exercise, the longest I have ever

engaged in.

And in running through numbers like that

and talking about people, there's a tendency to kind of

become numb to what just happened.

leave you with that, and I'm going to leave you very

And I don't want to

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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shortly. Not one person who I just went through, not one

person would trade their verdict line for what happened

to them for them not to be injured or killed.

This is not a voluntary exercise by them.

Not one. They did

nothing wrong.

serious matter.

jury, and we appreciate all of your hard work on this

case.

This is a very serious case, a very You have been an incredibly attentive

I want to thank my clients for trusting us to tell

you -- them -- to tell you their story.

listening to their stories.

accordingly.

Thank you again.

THE COURT:

Thank you.

Thank you for

We trust that you will act

I'm going to stop us today

rather than dealing with a defense opening today.

will pick it up again tomorrow morning at 9:00, and you

will be listening to defense closings at least through

tomorrow morning and probably into a little bit of

tomorrow afternoon.

scheduling when we see you tomorrow.

We'll talk about our lunch

Go ahead and leave your notebooks and notepads on

your chairs.

and we'll see you tomorrow morning.

Head on downstairs to the main jury room,

(Jury out.) Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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THE COURT:

A couple of things.

One is Mr. King got

in touch to ask about how we're going to document the

visuals being used in closing.

Ms. Koehler, to the extent these are prepared

documents, and they look like they are in your closing,

get them onto some sort of storage media, if you would,

so that we have a record of the visuals used in

closing.

9 10 11

To the extent that --

I'm going to ask the defendants who use visuals to do the exact same thing. The second thing I want to take up is scheduling.

Altogether, at best, the defendants are estimating

three hours in closing.

get done early afternoon tomorrow with the defense

closings, and we should be able to take a short

rebuttal, which is what Ms. Koehler anticipated, and

then be able to supplementally instruct the 12 jurors

who remain after we've selected alternates.

That, to me, means that we'll

We'll select alternates by rolling a drum here in

open court at the very end of the presentation of all

of the closings.

Any other questions?

MR. KING:

Mr. King.

I have a concern.

I wanted to bring to

the Court's attention some language that appeared in

the -- I'll call it the opening of the damages Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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discussion.

And I want to flag this language --

MR. WAKEFIELD:

THE COURT:

Could you use a microphone, please?

Just move over a little bit.

You're

right next to a microphone.

MR. KING:

Sorry about that.

My voice projects.

As I was saying, I wanted to bring some language to

the attention of the Court which I heard and a number

of my colleagues heard.

THE COURT:

I've been reviewing the closing argument

as the transcript -- strike that -- as the realtime

feed has been coming to my screen.

what's your --

MR. KING:

So specifically

Here's what I'm driving at.

The concept

of how do we do valuation was introduced.

a number of phrases, one which may not be precisely

verbatim, was the suggestion that the amount of damages

award could be different, depending upon the nature of

the conduct that gave rise to the damages.

Then I heard

There was a reference to too much fault.

There was

a reference to -- this is verbatim -- magnitude, depth,

breadth, preventibility, inexcusability, and precisely

the statement there's a relationship between the extent

of the misconduct and the amount of the damages to be

awarded.

argument.

That is a disguised punitive damages

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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And I'm asking the Court to think about overnight

giving a corrective instruction, telling the jury that

you should disregard those suggestions.

about compensation only.

punishment.

6 7 8 9

THE COURT:

This is a case

It is not a case about

And that is my request. Let me -- I'm sure everybody else is

joining in Mr. King's request. MS. BUCHANAN:

No?

Yes?

I am joining it, but I have a

different but related issue.

THE COURT:

Let's hear yours.

MS. BUCHANAN:

Your Honor, the phrase that on behalf

of Ride the Ducks we take exception to is words to the

effect -- and you'll have the quote -- there is a

danger that you don't -- referring to the jury -- there

is a danger that you do not recognize enough for them,

causing them even more injury.

Inferring that this jury will cause injury to these

plaintiffs even further if they don't provide the

compensation requested.

phrase.

So we'd take exception to that

THE COURT:

MR. PUZ:

THE COURT:

Anything else?

MR. SEDER:

Join.

Okay. Join.

And your Honor, I wanted to

revise my time estimate up from 30 minutes to perhaps Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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45. THE COURT:

I assumed 45 minutes per defendant,

which is where I came up with my three-hour total.

and 90 is three hours.

5 6 7

Ms. Koehler, what do you want to say, if anything, about these requests for curative instructions? MS. KOEHLER:

So the one that Mr. King talked about,

I believe that they did generate -- did generate an

objection at the time.

THE COURT:

MS. KOEHLER:

THE COURT:

MS. KOEHLER:

The one that Ms. Buchanan is

talking about, there was no objection.

There was. There was to that one too? Yes. I'm good at putting them out of my

mind apparently. With respect to the first one, that was not a

punitive request.

interrelatedness of life.

discussions about mental health and physical health,

it's all intertwined.

That was just talking about the So I had given earlier the

This case is all intertwined.

This is a liability

and a damages case.

They have not conceded liability.

Mr. King said this is damages only.

all intertwined, and that's all I was saying.

asked them to punish the defendants ever.

It is not.

Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

It is I never

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With respect to the comment that Ms. Buchanan

raised, I would like to know exactly what my words

were, but typically that concept is basically -- and

what I was trying to convey was it's just as bad to

overreach as under-reach in a case.

When you're -- I was talking about, you know, there

was a whole conundrum of how do you come up with a

valuation?

to be credible, and you have to have reason and logic,

I was kind of wondering aloud, like, it has

and you want to give the right amount.

not too little.

and defense kind of discussion.

Not too much,

That's a standard kind of plaintiff

Now, I don't know exactly the words I said, but that

was the intent was really just to wonder aloud with

them, how do you come up with numbers?

kinds of things that you factor into.

THE COURT:

These are the

Let me talk about how I take this.

have to tell you that to my ears, this closing wove

back and forth between liability and damages at more

than one point.

following a set outline of topics and reciting the

words.

It wasn't just, you know, Ms. Koehler

She veered back and forth between the topics.

When we talk about liability here, the plaintiffs'

case -- and there is evidence to support it -- is that

this accident, this collision was always inexcusable, Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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that there was a very serious level of fault here. Negligence-plus is essentially what the plaintiffs

are arguing here.

to the jury when they're arguing liability, because

obviously legally, if they prove more than negligence,

they have proved negligence.

the level required for a Product Liability Act claim,

they have proved Product Liability Act claims.

that's legitimate argument.

And they're entitled to argue that

If they prove more than

And I have a difficult time parsing through

Ms. Koehler's argument and saying, well, this sorts

into damages where it would be improper, and this sorts

into liability where it would be proper, if you follow

me.

I do agree that a request to the jury to magnify

their damages because of the level of fault here would

be improper.

have stepped in and said that to the jury.

not what my eyes see on my screen, nor is that what my

ears heard in context.

back and forth-ing between the concept of liability and

damages.

And if I heard that clearly said, I would But that's

Instead, I saw this sort of

In terms of the comment that Ms. Buchanan's

concerned about, you know, I'm going to be blunt with

you.

There were things said during the defense Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12368

presentations in this case, both during

cross-examination and during examination of experts,

that could be viewed as minimizing and making light of

the very profound injuries and damages that many of

these plaintiffs suffered.

There were suggestions by some of the experts

that -- how shall I say this -- the plaintiffs were

essentially so screwed up by things like, you know,

their sexual orientation and being assaulted in the

past, you know, that they were already damaged goods

and don't deserve to be compensated.

Maybe that's legit, maybe it's not.

But one could

see how it could be viewed as demeaning and minimizing

and even humiliating the plaintiffs about whom these

things were presented.

of your psychiatrist.

And I'm thinking in particular

There were also statements made that essentially

suggested that the people had fabricated their reports.

And that's not from one expert but at least from a

couple that I can think of that plaintiffs had made

things up.

through a couple of times.

That was a strong suggestion that came

And it's not unfair for the plaintiff in closing in

talking about damages to say you have got to treat

these complaints seriously, that these claims of Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

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fabrication are inappropriate. I'm not saying this is my perspective.

I'm saying

it's a legitimate argument for plaintiffs to make in

response to some of the defense presentation.

There was a good deal of cross-examination of

plaintiffs themselves that veered into humor.

I don't

think it was meant ill.

counsel here.

felt right to either plaintiffs or their attorneys.

I have the highest opinion of

But I will tell you that it may not have

And to the extent that that felt like an effort to

minimize or lighten the level of damage and pain that

these plaintiffs have suffered, it's not unfair for the

plaintiffs to talk about this in terms of seriousness,

profoundness, and the need to hold the defendants

responsible for what damage they inflicted.

You know, again, folks, I'm just telling you that

there are areas that are fair game for an advocate

here.

advocate to talk about, given all the evidence in this

case.

And these are areas that are fair game for an

So thus far, I haven't heard anything that would

warrant a further instruction from the Court from

plaintiffs.

instruction during anybody's closing here.

And my hope is I won't have to give a jury

I have, as I said, enormous respect for all of you. Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

12370

But that's where I am on these requests.

I don't -- I

did not hear these statements by Ms. Koehler in the

senses that you heard them.

from a plaintiff's perspective, given the evidence in

this case, as appropriate and within the scope of

proper argument.

All right.

I heard them as at least

And so denied.

Let's recess.

I'll see everybody

tomorrow morning, and we will hear the defense

presentations.

I'm assuming that it's going to be RTDI, then RTDS,

then the State, then the City.

that up, defendants, let me know so I can call you in

appropriate order.

If you decide to change

Also, if you could give me just a little cheat sheet

about who's arguing.

Mr. Snyder for RTDI, Ms. Buchanan for RTDS, Mr. Puz for

the State, and Mr. Seder for the City.

up also, tell me tomorrow before we get going.

all then.

MS. BUCHANAN:

MR. SEDER:

I am assuming right now

If that changes

Thank you, your Honor.

(Proceedings adjourned at 4:03 p.m.)

23 24 25 Joanne Leatiota, RMR, CRR, CCP King County Courthouse, Rm. C-912, (206) 477-1578 Seattle, WA 98104

See you