Ride The Duck - Trial Diaries, Karen Koehler

Day 0

Monday10.1.18

Three years and one week ago, I was in the middle of a month long trial in King County Superior Court. 3rd and James in Seattle. We learned during a break that there was a terrible wreck on the Aurora Bridge. A Ride the Ducks vehicle struck a bus. I had a sinking sick feeling but put it out of my mind until trial was over for the day.

I came home after the trial day, opened my laptop and devoured the news. The bus had been filled with international students and four died at the scene. One more would die at the hospital. Almost 70 people had been injured.

The trial went on for another week. Three weeks later I received a call from the father of one of the injured students from the bus. I met with the family at the nursing home and then went about the business of catching up on my other cases. A month later in November, I was in Indiana giving a speech to the trial lawyers association when my office called. The father of the student wanted me to meet with them again. I stopped by the nursing home on my way home from the airport. And 18 year old Phuong Dinh became my client.

By that time a few other lawyers had filed their clients’ lawsuits in Federal Court. There was also a group of fellow WSAJ trial lawyer attorneys who had formed a group but not yet filed

cases. I tried to contact them but when they didn’t respond immediately, I decided to strike out separately.

I felt the case should be filed locally and that in addition to Ride the Ducks, the governments should be sued for the dangerous condition of the Aurora Bridge. I scoured public documents, preliminary investigation materials, the media, and along with Andrew Ackley of my firm, drafted an extremely detailed complaint and filed claims with the City of Seattle and State of Washington. We filed the complaint on Dec. 2, 2015.

Two other plaintiff lawyers called me when they heard about the filing. Chris Jackman was a tenant in our building. He represented a student who had suffered PTSD. Doug Phillips represented two students who were treated at Harborview and placed in nursing homes like Phuong. A professor who had been in my dad’s department at the U of W called. Their friends, a family of 4 from Japan had been on the duck. Tim Loranger, a lawyer from California with experience in airline and train mass transit disasters, represented one of the deceased and decided to join us.

I drafted a conflicts waiver and the Dinh Group was born. We created a hierarchy with myself as lead; Andrew and Tim comprising the primary work team. We filed more suits. When the claims period of 60 days ran, we amended the complaints so the governmental entities were now part of the lawsuits. More lawyers contacted me. We added their clients to our group. I remember thinking how amazing it was when we had a group of 8. Then it became 14. Then 20. Over the course of three years, the Dinh Group grew to 48. The last 5 members joined just prior to the three year statute of limitations and the defense won’t let them be a part of this trial.

There were two other groups – the “coordinated counsel” made up of over a dozen WSAJ stalwarts and the self explanatory “unaffiliated group.” All of the actions were consolidated for discovery purposes by Judge Catherine Shaffer. My goal was to make sure the Dinh Group stayed out front and on top of the case so that we could control the litigation. This did not endear me to some of the attorneys who were not in our group – even though I had known and been friendly with most of them for years.

The pretrial phase included hundreds of depositions, over a million documents, innumerable motions and a trip to the appellate court. Dinh Group took the lead on almost every phase of litigation. We were able to stay ahead of the defense armies. We operated paperlessly. Jesica McClure lead paralegal, became versed in Ipro to deal with the mass of electronic discovery. Debbie Watt worked alongside Jesica primarily on damage issues. We added Georgia an assistant. Garth Jones assisted with the appeal and some of the briefing. Then our new associate Melanie Nguyen joined.

A few months before trial was set to begin all of the other plaintiffs settled their cases with the exception of the duck driver represented by Larry Kahn who could not join a group due to his

unique status; and four others represented by David Beninger and Darrel Cochran who had left the coordinated counsel group.

We had even more paperwork to deal with ramping up for trial. We added two contract lawyers: Janet Thoman and Lisa Benedetti. Our trial brief was 290 pages long. Our ER 904s and witness lists were dozens of pages long. We filed 26 motions in limine while the defendants filed 200. The sheer volume of work has been ridiculous. And now here we are.

Today Oct. 1 the trial begins of 43 members of the consolidated Dinh Group against: 1) Ride the Ducks Seattle for negligent maintenance and operation; 2) Ride the Ducks International for negligent manufacture and failure to recall; 3) The State of Washington and City of Seattle for the dangerous Aurora Bridge; and 4) Brian Tracey individually as owner of Ride the Ducks Seattle for his acts in placing profits over safety.

Day 0.1

Court did not occur today – the judge needed more time to review the humongous number of trial motions. But check out the Court’s twitter feed.

Day 2

TuesdayOct.2,2018

It starts early.

From: Karen Koehler <karenk@stritmatter.com>

Sent: Tuesday, October 2, 2018 6:24 AM

RTD Aurora Bridge Trial Diary - 5

Dear Mr Ulmer (Bailiff to Judge Shaffer).

Plaintiffs also asked the defendants to complete and circulate the glossary which they also have not done. We can talk about these issues in court.

Best regards. Karen

On Oct 2, 2018, at 7:07 AM, Puz, Steve (ATG) <SteveP@ATG.WA.GOV> wrote:

Oh, for goodness sakes Karen. Please stop using Mr. Ulmer as your personal go between to pass notes to the judge about every gripe that occurs to you. It's unprofessional and a waste of Mr. Ulmer's valuable time for you to communicate with the judge in that fashion. If you have something to bring to the Court's attention about an "issue" your client thinks is important, which this morning appears to be the fate of a voluntary "glossary," file a motion. That way there is a full record of your communications with the court.

Best regards, Steve

From: Karen Koehler

Sent: Tuesday, October 2, 2018 7:28 AM

To: Steve Puz

I’m glad you are sitting far away from me. Do your job and I won’t have to keep bringing up what you have failed to do despite the courts specific request.

karen

Andrew and Melanie will be arguing most of the motions in limine. My presence will be decorative. 80s retro to be precise. Black tank over black slacks (okay I admit it – they are jeans) tucked into knee high chunky healed boots. Topped off with a neon pink blazer. Hair slicked into a bun.

The uber driver arrives. His van door slides open. Cross the street and enter. Head downtown. Traffic is fairly light.

K3: How long have you been driving

Trahn: One year. Do you know how many trips I make.

RTD Aurora Bridge Trial Diary - 6

K3: How many.

Trahn: Check my profile.

K3: Look and say: wow. 1,000.

Trahn: No that is my 5 star review. Look again.

K3: Look and say: 8,243. In one year.

Trahn: Laughing. Yeah. Can you believe it. So many.

K3: How much do you work.

Trahn: It is easy. I work 6 to 10 and then 3 to 7. On the weekends I work 2 to 9. 7 days a week. I set my own schedule. Can take a nap. It’s great.

K3: What did you do before.

Trahn: I used to be interpreter. Chinese and Vietnamese. Also now I’m singing and producing. He pulls out a white CD. It has blue Chinese script on it.

Trahn: You want to hear.

K3: Of course.

Trahn puts it in. It is a remake of a Patsy Cline song. He sings along: Crazy, I'm crazy for feeling so lonely I'm crazy, crazy for feeling so blue

He can’t pronounce the “r”s. He belts it out Cwaaaazy…

We are on 2nd heading up James. The courthouse is in sight.

Trahn: Do you have a good voice. If you want I can record you.

Let him down gently. Hop out. And give him another 5 star review.

There are a ton of lawyers in the courtroom. Don’t know the newest ones from Philadelphia. Go and introduce myself.

226 Motions in limine have been filed. The plaintiffs have filed 26 of them. It is a long and slow day. Argument piled on argument. Judge Shaffer is firm in her rulings and explains her reasoning. Preserving the record. The duck appellate lawyers are sitting in the back row.

We leave at 4. Andrew drives me home. Grab a bite. Go for a run with Nala. Return.

RTD Aurora Bridge Trial Diary - 7

Receive a text from Alysha. 3 weeks ago Ride the Ducks Seattle posted a 4 minute youtube PR video:

My name is Brian Tracey and I am the President and CEO of RTD Seattle. I’m here today to demonstrate that RTD of Seattle has set the standard for all land and water tours all over the country. And to assure you that safety is our number one priority.

Gnash teeth. Write a motion re: prospective jury tampering. Call Andrew for second opinion. Is that video bad. Or is it really bad. He concurs. Send out the motion. Feel better. Michael is sitting across the table working on medical stuff. We chit chat. He goes upstairs. Am writing this diary. Search for the youtube video to include the link. And voila. They have taken it down. But not before my sleuth daughter uploaded it.

Day 3

WednesdayOct.3,2018

Climb 9 instead of 8 flights of stairs. Walk across the hall towards the Presiding Department. This will be our home for the next several months. Yesterday asked one of our court reporters the last time she reported up there. She said several months ago during voir dire in a murder trial. She couldn’t remember how many years it had been since she’d been up there for trial.

A pile of lawyers is loitering outside. Try to walk in and a maintenance worker says the room is not ready yet. Go back outside and wait a few more minutes while they haul in tables and arrange the furniture. We are allowed to enter about ten minutes later. The room is long, wide and vast. 15 foot ceilings, brown checkered tile floor, oak pews and a jury box that can seat three dozen. Under the judge’s bench the existing counsel table runs from the jury box towards the other side of the room. That table sits ten. A folding table has been added at the end facing the jury box so four more attorneys can fit. The first two rows of pews have been fitted with small tables and desks for additional counsel. About two dozen of us settle in. There is only one electrical outlet and the defendants are hogging it. Fortunately Ryan (our firm’s IT guy) got me a battery the size of a book.

The room gobbles up everyone’s voices. So the court IT person comes in and puts microphones at the tables. But that doesn’t work very well. So everyone goes up to the bench.

When I was a young lawyer even in small carpeted courtrooms, the judge, jury and reporters were always saying: speak up...what did you say...we can’t hear you. It got to the point where I would tell the jurors in advance to point to their ears if they couldn’t hear me. Somewhere along the way I stopped being soft spoken. In retrospect have concluded the quality of the voice was a result of the inadequacy of breath. Anxiety would cause everything to squeeze in and shut down.

Aurora Bridge Trial Diary - 8

The voice had a hard time wiggling out. Now that I’m a seasoned grandma lawyer (his name is Liam Isaac and he was born to Cristina and Sol three weeks ago today and is an angel of the highest order and makes the cutest baby sounds and…). But I digress.

One of the motions involves trying to limit us from saying surveillance on one of the plaintiffs caused her additional PTSD damages. They try to bar this by saying there is no cause of action for litigation injury damages. The judge agrees with Andrew’s theory and says there is no court rule providing for surveillance. If they had asked her to allow them to conduct it she would have said no. There is a long history of surveillance being used in terrorem by big corporations against plaintiffs. So they have a choice – they can use the surveillance but if they choose to do so, the plaintiff can claim and recover for additional PTSD damages. Later the court reporter tells me she has a story about surveillance that occurred back in the 70s. After break she says –do you want to hear the story. I stand next to her and this is how it goes.

She was in Vancouver BC reporting in a civil trial. A young attractive woman with shoulder length brown hair had been in a car crash. She could not turn her neck and could only lift her arms to shoulder level. During trial she was asked if she stood on these claims and she said yes. The defense called a private investigator to the stand. He had photos from surveillance. It was done in the summer and he was filming the plaintiff’s back yard. She was in a red polka dot bikini. Her arms were raised over her shoulders as she was putting on sun tan lotion. She could move her head easily and was entirely limber. Court adjourned. The next day the plaintiff’s sister took the stand. She was young, attractive, with shoulder length brown hair and was wearing a trench coat. She had flown in from the states and had an old airline ticket that was introduced into evidence. She was shown the photos and asked who was in them. She stood. Unbelted and dropped her raincoat. She was wearing a red polka dot bikini.

It is after lunch and we are slugging through a hundred motions today. Andrew and Melanie are covering most of them. Am looking at something on computer. Listening out of an ear when Andrew says – you should deal with this. It is about one of our clients with severe PTSD who has suicidal ideation. There are actually several such clients in the survivor’s group. The defense is complaining that I refused in his deposition to let them explore whether he had a plan to commit suicide and that we should be barred from making the claim. This is actually true. Said who are you to ask a question like that – are you a licensed psychologist, are you qualified to ask that type of question, am not going to let you harm him further, and instructed him not to answer.

Stand up and move into the center of the “stage” area of the courtroom. In the center of the “L” in front of Judge S.

K3: Your honor, I have been kind and gracious and have not been combative during discovery except one occasion where Mr. Puz (Assistant Attorney General) was aggressive with Client “T.” And I escalated to the point where my office gathered to watch me lose my temper

(paraphrase). But his questions were absolutely ridiculous – he demanded that my client tell him every single thing he told the psychologist …

Puz: Standing with chin jutted out. That is not…

K3: You see your honor, we just don’t

Puz: She blah blah blah

K3: He needs to stop mansplaining!!!

Puz: I’m not….

Judge S: You (point to Puz) sit down. You (looking at me and trying not to smile) calm down.

I turn towards Andrew/Melanie, gleefully mouth the words: “I used the word “mansplaining” in open court.”

Turn back to Judge S looking docile and meek: Yes your honor.

Continue arguing. Lean over to see what Andrew wants. He says – you got the clients mixed up. They were talking about “Y.”

Day 4

ThursdayOctober4,2018

Everyone moves to the other side of the long table so we are facing the back of the room. There are more defense lawyers today. Scott Wakefield (RTD International) is now flanked by two Philadelphia lawyers. His former #2 and #3 backups are relegated to the table behind. Three jury consultants sit together at the skinny table in the first row of pews far right side. Brian Tracey, owner of RTD Seattle is also here.

Mr. Ulmer the bailiff hands us a seating chart (which we will never use) and a list of 175 names. This is the morning call. A second bailiff has arrived to assist. They head down to the jury room. After half an hour the first 100 file in. It takes ten minutes just to seat them in order.

Clerk swears them in. Judge Shaffer reads the neutral statement:

On September 24, 2015, an amphibious duck boat tourist vehicle traveling northbound on the Aurora Bridge suffered a mechanical failure, crossed the center line and struck a southbound motor coach carrying international students from North Seattle College. There were five fatalities and many others injured as a result of the collision. 45 plaintiffs brought this lawsuit against Ride the Ducks International – the company that modified amphibious military vehicles for use as amphibious passenger tour vehicles, including the

RTD Aurora Bridge Trial Diary - 10

one involved in this collision; Ride the Ducks Seattle, Brian Tracey, and Tracey Entertainment – the owners and operators of the duck vehicle; the State of Washington, and the City of Seattle – which are responsible for the Aurora Bridge where the collision occurred.

Some people silently mouth “O”. Others shake their heads. But no one audibly gasps until the judge explains this case will go until March.

Judge Shaffer spends the next 30 minutes explaining the schedule, civic duty principles, and what undue hardship means. She is really good at this. She asks who claims undue hardship and 70 people raise their cards. She takes down all of the numbers. Then for the almost hour lets everyone explain why they should be excused. When that is over the lawyers follow her into chambers. We go through the list she wishes to strike. We all agree. Go back outside. And she lets about 60 people leave. The other 40 are given a list of 4 questions as they head out:

1. Have you learned any detailed information about this case through news, social media, conversation, or any other source?

Yes ________ No ________

2. Have you or someone close ever had a negative experience with Ride the Ducks, or heard or read anything negative about Ride the Ducks?

Yes ________ No ________

3. Do you have any strong opinions about whether the Aurora Bridge is safe or unsafe?

Yes ________ No ________

4. Have you, anyone in your family or anyone close to you ever died or been seriously injured as the result of a transportation related incident (car, boat, plane, train, etc.)?

Yes ________ No ________

They are sent back to the jury room to fill out the questionnaires. Then next week those who answer yes will be called back.

Push my chair back tothe other side of the table so am not sitting in a line with everyone else. The jury doesn’t know who we are. But as the only plaintiff lawyer in a room filled with the defense, it bugs me to sit next to them..

After break another 80 jurors file in. The whole process is repeated start to finish. This will happen a total of four times today. We go through 360 jurors.

It is agonizing to sit still and appear to be enthralled listening to Judge Shaffer give her 30 minute speech over and over and over. Observing the formation of excuses and how the court deals with them at least keeps me focused.

1. Worst lead up to an excuse: You will probably not feel this is important but…

2. Most illogical (offered by several people): will not be able to meet expenses and am going on a 3 different vacations.

3. Most common vacation destination: Hawaii

4. Angriest juror: school teacher

5. Age of oldest (healthy) child parent needed to watch: 16 years

6. Number of businesses that would not compensate their employee for jury service: most

7. Employers that would compensate their employees for jury service: Boeing, Microsoft, Amazon

8. Lawyers who claimed hardship: 2

9. Health care professionals who claimed hardship: 4

Favorite moment of the day comes right before lunch break. The jurors have left. We are getting ready to head out. In walks a guy in a sweat shirt. He introduced himself to me two days ago and again yesterday. I didn’t tell anyone why. This is the third day in a row he’s shown up. His mission: serve another lawsuit on Brian Tracey. He strides down the length of the courtroom. Marches up to Tracey. And tags him..

Tomorrow we have to finish the last of the MILs.

Day 5

FridayOctober5,2018

Am in the security line next to Tad and Vanessa, the city attorneys. Tad is hauling a rolling briefcase. I head for the stairs. They decide they want to come with me.

K3: Can you do that with the case.

Tad: Sure no problem.

We are chatting as we go up the first three flights. They slow down. I speed up. No mercy. They stop talking. I perform a monologue. Am at the 8th floor and they are down more than a flight. Tad’s arm is probably in spasms. I don’t wait for them.

It is 8:30 and we are stuffed inside Judge Shaffer’s regular courtroom. Back to arguing motions. One of them is a bit unusual. We’ve asked the court to order the ducks defendants to tell us the individual amounts that they’ve settled with 15 other plaintiffs who are not in our group. There are confidentiality orders in place but we want them voided under a product liability statute that says when public safety is involved, confidentiality orders are not appropriate.

After I argue, the plaintiff lawyer for one of the settling families stands up and asks to argue against us. It is a bit of a surreal moment. Judge tells her she can go after the ducks. Ultimately Judge S holds that the statute conflicts with court rules encouraging settlements and denies the motion.

At that moment, a man walks by me. Am seated furthest right of all counsel. If I were to reach out my arm could touch him. He is wearing a vivid green shirt that is a way too large. In silence he salutes Judge Shaffer. She says may I help you. He salutes her again. Then in exaggerated pantomime gesticulates and bows before striding out of the courtroom.

Andrew the bailiff is off the bench and walking towards the door. Tad beats him to it, opens it looks up and down and walks back in. Am wondering if they’ve locked it or what. Andrew walks back up to his seat. Picks up the phone and is quietly talking to security.

At that point think – uh maybe should have been scared. He could have been dangerous. But as we all look around trying to figure out what happened, Judge Shaffer – ever quick witted –makes a record of the whole thing: This gentleman came in and with an extremely respectful demeanor bowed to me which I wish you all would do more often. This begets chuckles and we turn to the next motion.

After the motions are finished, we head upstairs to Presiding. Prolumina is setting up. They have a 90” tv. What happened to the 100” one I ask. Apparently they looked into the price and it was over a hundred grand. 90 is pretty beautiful. Sit in the jury box checking what can be seen or not. Mike from my office comes in hauling the pieces of a rolling whiteboard and the skeleton that I named aunt sally 20 years ago.

Am looking at the monitors being unpacked when I see retired Judge Dean Lum sitting several rows back. Go to say hi. Judge Lum once let me and Mike Withey bring a piano into trial so our client – then the piano player for the Grateful Dead – could serenade the jury. He is preparing a speech on the visual trial and has come down to watch. People gather around to say hi. Judge Lum says he will come back to watch opening.

Here is the courtroom getting outfitted.

Day 6

MondayOctober8,2018

We have two sessions of jurors today. Stand along with the 17 defense lawyers and their jury consultants as the morning venire group files into the jury room. One by one they come out for individual questioning. All because they checked “yes” on at least one of the boxes in the questionnaire.

In almost all of the other cases have ever tried this would be an amazing and fabulous opportunity. But here in this great case it’s the reverse. These people have heard about the case in the media, have opinions about ride the ducks, the Aurora Bridge, or have been personally touched by a very bad transportation crash. The defendants are hoping to boot all of them off for cause right now.

Judge Shaffer does most of the questioning and is uniquely excellent in communicating with the jurors. She tells them plaintiff has the burden of proof, not the defendants and even lets them know the legal standard for the government is whether the roadways are reasonably safe for

travel. She talks about leaning in one direction before the trial has started and uses other constructs to explore the juror’s feelings.

The defense lawyers don’t need to ask any followup questions because she’s done their job for them. But they can’t resist. I study them as they ask the questions. In particular, watch their facial expressions. Their smiles.

They are taking notes. Looking down. Scowling. But when it is their turn to address the jury they put on big fake smiles. Even when their eyebrows are knitted in a frown, their cheeks are raised so their teeth show. Here’s the rundown:

• Scott Wakefield has the faintest smile. When speaking he has a habit of squinching up his nose like a bunny which also narrows his eyes.

• Pat Buchanan has a better smile but holds herself rigidly upright in military bearing.

• Steve Puz tries to soften his voice and smiles with his mouth, but his bushy eye brows remain furrowed and his chin juts out no matter how hard he triespretends to act nice. There is a sense he is just waiting to pounce.

• Vanessa Lee smiles as brightly and broadly as she can no matter what she is saying. Her expression does not falter and is a bit exhausting to contemplate. She also occasionally bows.

• Tad Seder who is usually so relaxed with the judge and lawyers, is a bit awkward when it’s his turn. He wants the jurors off but instead of cajoling which seems like it would be more his style, he smirks.

Meanwhile, I sit there with my mouth pretty much zipped shut. The hours pass. It’s hard not to feel a bit demoralized. The judge says over and over again: does any party have an objection to excusing this juror…

Want to jump up and shout: Yes. Objection. So what if they don’t like ducks or that bridge or read the news. The defendants are in the wrong here. Let those jurors stay. Instead, say: …sigh…no objection.

Court ends. Walk down the stairs. Call for the uber. He comes straight to the third avenue entrance which is illegal now as the city blocked off that roadway to buses only. He is a cool young dude wearing a dashiki and playing hip hop music with dirty lyrics . His Honda is raggedy. The carpet has been partially torn and pulled up from the floor. Try to tuck it in but that doesn’t work. My heels get stuck in it. He drives down third and makes a left turn heading towards the water despite the presence of a large No Left Turn sign. Gets me home in 10 minutes. Give him a 5 star rating with the hope that he will soon be able to get a better car.

Nala is waiting. The drizzle has started. Throw on rain gear. Tuck treats and poo bags in pockets. And we run out the door.

Day 7

TuesdayOctober92018

7:00 get up. Turn on A Star is Born soundtrack. Saw the movie with Alysha Sunday night. Am obsessed. Best song: I’ll never love again. Play it ten times. Lady Gaga is reminiscent of Whitney Houston singing I will always love you from The Bodyguard soundtrack. Glorious.

8:15. Get through security. Am walking up the courthouse stairs. Pull out phone. Insert ear buds. Dial. Noelle picks up. Sing her happy birthday. She is 25 today. This is the first time ever in the history of our family that I have not been with one of my daughters on her birthday. She lives in Nashville. There is no way for me to get there and back. Knew this would eventually happen. Has been bugging me for a few weeks. Noelle sounds great and her boyfriend JonJon is there to love and celebrate her. That slightly eases the mommy guilt. Wish I could be with her.

It is 8:30. We are going to argue whether the combined defendants should receive less peremptories than the plaintiffs. Because the defendants are fighting against each other the court decided to increase their peremptories to a total of 12 with the plaintiffs getting 7. But now she’s re-thinking the fairness of that. Because the defendants are totally aligned on damages.

8:30 comes and goes. Judge arrives half an hour late. Bus stuck in traffic. We skip the motion and go right back to individual jury inquiries on the bias issues. One after the other the jurors say they can’t put what they learned from the media out of their minds. Or they don’t like the bridge. Or they think ducks are unsafe. Watch them walk out the door. Frustration leads me to change tactics.

Up to now, have sat back. Let the judge lead the discussion with the defendants following. Say little as this exercise is to explore bias directed at the defendants. But something has to change the flow of what’s going on. And in a room with 20 defense lawyers and their jury consultants, that something has to be me.

After another juror is booted, I object. Not only to his removal for cause, but to the browbeating. Judge Shaffer has settled on a way of explaining proximate cause which is: the Plaintiff has the burden of proof and the defendant could actually choose not to present any evidence although in this case they probably will. This is because the defendant has not brought this case. The plaintiff has. Defendants morph this into – so if the plaintiff presented all the evidence and the defendant presented no evidence – which way would you lean. This is a distortion of the Judge’s statements. Judge Shaffer agrees.

Next point out that jurors are entitled to use their personal experiences and common sense. The court’s admonition that they should put their experiences away so they can be completely blank slates, is incorrect. They are getting pounded and am just sitting here watching them walk away.

This little dramatic speech pays off. As the day goes on, Judge Shaffer dials back the level of her bias inquiries. The defendants follow suit. I ask questions even though don’t need or want to. So everyone can hear my voice.

Correction: A reader of the diary noted that Judge Lum is not retired. He was in his street clothes last week up in Presiding. I leapt to the wrong conclusion. Glad to know he’s still on the bench.

Day 8

WednesdayOctober10,2018

Am standing outside in black rolled up skinny slacks topped off with a lululemon tank, gray velvet jacket with a jewelry style button and matching velvet loafers. Costume jewelry around throat and wrist.

We are near the patch of weeds on the sidewalk that my neighbor fails to maintain. Nala sniffs deeply. Sticking her nose all the way down into the dirt. Turns clockwise. Then counter clockwise. Shimmies over a few more feet to the right. Say: seriously Nala hurry up. When the perfect spot has been ascertained she does her business. Consider how funny it would be if that’s what we had to do in our bathrooms before the deed could be done.

This thought process is actually a good sign. Despite the rigors of trial, am able to still think random thoughts about nothing.

Arrive at court. New defense people are in place. Have given up bothering to ask their names. Two dozen today. But the appearance of lopsidedness is deceiving. Even though there is only one of me in courtroom, our team is working with military precision back at the office. Motions are being researched and drafted. Witnesses are being scheduled. Proposed orders are being word checked with the daily transcripts. And other secret things are being wickedly accomplished thanks to Andrew, Jesica, Debbie, Melanie, Lisa, Georgia, Garth, Tim plus our other co-counsel. This is the most and best support have ever had in tria.

8:30. Judge enters. Mike King walks up to the bench to argue the motion for reconsideration regarding admissibility of the NHTSA consent order against RTD International. Had already told him judge said she hadn’t decided if there would be argument. But he ignored me. He introduces himself again. Judge S remembers he’s been previously introduced as – preservation

of error counsel. She tells him there will be no oral argument because she is not changing her mind. He leaves my sightline. Maybe the courtroom.

We move on to the issue of peremptory challenges. This was supposed to have been argued the day before. She announces her reasoning. She focused on liability when she made her initial order of 7 for Plaintiffs 12 for Defendants. But as the trial has progressed she is changing her mind. It is becoming clear that damages is such a big issue. The defendants are aligned fully on that. Plus now they are starting to shift in their posture and instead of attacking each other, are backing off so they can attack the plaintiffs.

Do my thing. Then Steve Puz the AAG starts to respond. Then Mr. Ulmer the bailiff arrives with the jury. And the argument is suspended. Won’t get to it until tomorrow. This frustrates all the defense jury consultants. Who will just have to tune in again tomorrow.

Over the course of the day we grill three dozen more jurors. This requires court staff to stay through most of the lunch hour. Thankfully brought grapes, pretzels and hummus. Which eat illegally in corner of law library.

The overall tone of the jurors continues to soften. Despite the four and a half month predicted length of trial, a majority want to be chosen. Those who are so biased they believe the ducks have no business on the roads, apologize that they can’t be fair. One says if he is on the jury he will be very interested to learn what happened and if he is not on the jury he will read everything written on the case to find out. Write down some of the more poetical comments as will repurpose them later.

The winner of most esoteric goes to the wedding singer. He tests Judge Shaffer’s knowledge of philosophy and she’s talking about Alchemy and he’s explaining why the words yes and no are too limiting and after half an hour she finally boots him off.

Judge S says several times that we have enough jurors. The pool will be too big. The defendants agree. But I demur. And she honors the plaintiff’s position. We stay the course and get through every single interview. There are almost 100 who will be in the pool. Even as Judge S says she will be striking some of them to make voir dire more manageable, letters and emails trickle in from jurors claiming hardship.

It is a beautiful fall day. Go for a run with Nala. Head over to Michael’s house because he’s made delicious chef quality dinner. Eat. Return home. Set up laptop and monitor in kitchen. Work.

General Voir Dire Starts Tomorrow.

Day 9

ThursdayOctober11,2018

Stop by Judge S’s real courtroom on the 8th floor to pick up monitor. Haul if upstairs. We have permanently returned to Presiding Department on the 9th floor. It is move in ready. There are a dozen monitors spread out on the main counsel tables with taped down power strips every so many feet. The court, clerk, bailiff and witness areas have the same set up. The big tv is on a stand. Its box is in the back of the room. Note that its only 85” not 90 as claimed. Say hi to Mike who is setting up a copy machine. Judge S suggests we print out exhibits x 16. So the jurors can see them more clearly.

The defense lawyers and their jury consultants are huddled in the front. Along with the owners of the two ride the duck companies. In the back there is a row filled with attorneys from the city. Pockets of other defense minions are peppered around the rear perimeter of the room. They are all wearing dark suits.

My favorite color as you know is black. Which is actually not a color. Wear an excessive amount of it. Primarily because it matches with everything. Plus am inherently a goth. But in preparation for not being lost in a sea of dark suited defense attorneys, today am wearing a white jacket over a black and white dress. Alysha comes to watch and says the jacket stands out vividly.

Andrew and Melanie arrive. Along with several of our co-counsel– Matt Dubin, Jongwon Yi, Patrick Kang, Anthony Marsh. We sit closest to the jury box. I move to the other side of the table so am facing the rear of the room. Pull out lego container.

Last weekend, went searching for legos. They are everywhere but come in kits. The house kit or the farm kit or the star wars kit. Just wanted simple plain old legos. Locate lego store called Brick. Knock elbows with little kids digging through bins of used legos. Get ten bucks worth.

When we negotiated where everyone was going to sit during trial, did not want to just blend in with the defense. Also didn’t want them looking onto our screens. Plus when we showed Artemis Malekour the set up she kept saying: you must physically separate yourselves from them. This is where the legos come in.

Plop container on table. Melanie’s eyes light up. She skillfully builds a two foot long wall. There’s also a little lego worker dude who holds a shovel. She sticks him on top and turns him so he’s facing the city attorneys. We place the wall directly down the middle of the table we have to share with them.

Judge Shaffer enters. Takes up argument on how many peremptories each side will get. Mr. Ulmer the bailiff arrives with the jurors. The motion is paused again.

The judge gives more instructions and explanations. Introduce counsel. Then Judge S asks if the jury knows any of the parties. But first need to know who the plaintiffs are. Stand up and read the names of each plaintiff in alphabetical order. Slowly. There are 44. It takes a while. As their names fall from my lips they travel through the microphone into and out of the speakers around the courtroom into the ears of everyone present. The solemnity of the occasion is palpable. Hearing that plaintiffs number more than 40 is nowhere as descriptive or as emotionally connective as spending the time listening to the reading of each name.

Bak, Seohee

Clouse, Don

Cooley, Rhonda Derschmidt, Claudia (deceased)

Derschmidt, Moritz

Derschmidt, Felix Dinh, Phuong Edwards, Li

Emery, Jennifer Gerke, JoAnn Gesner, Susan Gesner, Timothy Hiraoka, Toshihiko Hiraoka, Sonoko Hiraoka, Kenichiro Hiraoka, Yousuke Hutapea, Mazda

Irena, Florencia Jang, Jae Won Johnson, Sarah Kang, Min Kyeong

Kim, Ha Ram (deceased)

Kim, Young Ki Kim, Yunsu

Kim, Sang Woo Lee, Young Yee Lee, Simon Lutz, Alena

Masumoto, Yuta

Nguyen, Tam Park, Jae Young

Park, Jin Young

Park, Kwang Hyeon

Putradanto, Privando (deceased)

Sa, Minje

Sawada, Ayane

Sheldon, Kathy

Sheldon, Ron

Sheldon, Rick

Sheldon, Terry

Yoon, Na Ya

Zhuang, Yu

Zielinski, Fenna

Zielinski, Gunter

The challenge of a case like this – is the pressure to move the case along to avoid juror fatigue. But it cannot be at the expense of the dignity of the individual victims. We have to spend time presenting the human scope of this tragedy.

We get through the day after losing another ten jurors and are at 87. Judge rules defendants’ combined peremptories will be slightly reduced. The duck defendants will share 3, the city and state will share 3 plus they will get one for each of the 4 alternates for a total of 10. Plaintiff will get 3 plus 4 for a total of 7 which is the maximum allowed.

She then looks expectantly at us. She’s been asking us to reduce the panel. It has been a slog of a day. She wants us to agree to remove 20. I say 10. She says 15. Sold. We lop off the last 15 jurors and on Monday morning will resume with 72.

Day 10

MondayOctober15,2018

The uber driver is ecstatic. Not only is the sun shining. But we hit just one traffic light between my house and court. A seemingly impossible feat. You are lucky I say. No it must be you he says. We go back and forth several times. Praising each other for our luckiness. Arrive at the curb. Wave goodbye.

Upstairs the jury consultants are huddling. The defense lawyers scurrying around in different directions. Today we are going to pick the jury.

The men are dressed in typical dark gray and blue. Tricia the #2 Assistant AG is in drab brown. But Vanessa the #2 City attorney is in a beige zebra print jacket and Pat the #1 Duck Seattle attorney is in gray slacks and a light colored button down shirt over layed with a white knee length jack-vest. They have coopted strategy of standing out from the sea of blue but never fear. Over the weekend when visiting grandson, ran into a store, scrounged around and found a jacket

which can only be called magenta-purple. It is one of the loudest pieces of apparel have ever worn.

Judge Shaffer is allowing us to make 3-5 minute mini openings should we choose to do so. It will eat into our time. 3 rounds of 20 min. for plaintiff with a bit more for the defendants. Have spent a lot of time thinking of the possibilities. What a fantastic opportunity. Eventually realize the last thing want to do is provide any more reasons for the defendants to get jurors off the case. If tell them just how negligent these guys were, they will all probably be booted for cause. So do a 2 minute mini – mini opening which simply identifies the parties and how confident we are they will find negligence. In fact we are so confident will not even talk about it. Instead, we are going to go straight to the heart of the case which is what happened to the people that got on the duck and who were travelling on the school bus. What happened to their families and how do we go about through the legal system, compensating them for that.

The defense attorneys all take turns and here is how they rate, from bottom to top.

• Vanessa Lee gives a speech on behalf of the City that mirrors the speech first given by the State except it is not as good. She speaks slowly and over elocutes. She is standing behind me and can hear her licking her dry lips in a nervous tick. The speech has the anticipated result of shutting down the jury.

• Steve Puz AAG is smiling so hard that my face hurts just looking at him. He is being jovial and kind but his bombastic voice can’t help itself. He gives the first opening speech and it is a good opening but a rotten way to do voir dire. The jury has learned more but at the price of becoming withdrawn.

• The dude from Philadelphia for RTD International. Already forgot his name. He is dominant and forceful and talks to the jurors one by one managing to get a few off for cause. He has picked out ahead of time who he wants to talk to about a smorgasborg of prior responses and manages to look like he is targeting people.

• Tricia Todd AAG has one question she asks because her round is split with the jury. She is more relaxed and would be better if she had more than 5 min.

• Scott Wakefield for RTD International is using questions from the jury consultants. His arms are crossed and he is doing the squinty eye thing. But at least he can change up and go with the flow a bit.

• Pat Buchanan for RTD Seattle is the best. Nice tone, more intuitive and less rigid. But it is a difficult task to act like she is representing a worthy innocent defendant.

The answers to the last question I ask is the most amazing of all. We have been doing voir dire since October 4. Gone through 376 jurors and are now with the final 70 ish. Ask them if after all of this, and understanding the inconvenience that is involved in a 4.5 month trial, if any of them would rather not be on this jury. Only three people raise their hands. They are worried about the impact on their jobs.

The pool is excused. Judge gives us 5 min to huddle. The defense rushes to the rear of the courtroom. Like an entire football team moving downfield after a kickoff. 5 minutes pass. She says let’s go. They don’t move. She says let’s go. They make their way back up. And then in a rush of adrenaline we go through peremptories outside the jury’s presence – 7 for us 10 for them.

At the end of the day this is who we have:

14 males 2 females

Age range 30 to 64 – with a mean of 47

3 racial minorities

2 LGBTQ+

5 software engineers, Immigration attorney, Boeing machinist, Electrician, Real Estate investment manager, banking consultant, homeland security agent, and a navy yard painter, and 1 retired yacht service company owner.

The jury returns. Is sworn in.

Tomorrow we launch into opening.

Day 11

TuesdayOctober16,2018

Walk into courtroom with Alysha. Most of law firm family have come to watch. Clients many with co-counsel have arrived. Some from around the world. Press is establishing base camp in the rear. As the minutes approach 9 the room fills.

Put bags on the table. Step out of tennies and into heels. Walk behind 85” tv that is in front right corner of the room. Breathe in and out. Kevin the court reporter is setting up. He says are you trying to avoid all the people. Nod at him. Smile. Find center.

Judge Shaffer enters just before 9. Jury comes in. Sits. Instructions are read. Judge says: now please turn your attention to the plaintiff for opening statement.

Am not the kind of person who can write out a speech then memorize it and spew out perfectly. That just doesn’t work for me. Instead, it is intensely internal. Usually refined during runs through the neighborhood with Nala.

Earlier when brainstorming with Artemis, told her thought of being the axle housing that eventually would break. Have been inanimate objects before in trial. If Disney can do it, well that’s good enough for me. There is a story to be told and it needs a good narrator. But somehow being an axle housing just doesn’t feel right.

Over the weekend during a gorgeous run as passed view of Mount Rainier framed by the Space Needle, realize the narrator for the first part of opening should be the person who was the narrator in real life – the duck captain whose job required him to be both the entertainer and the driver. This requires a bit of modification to PPT. Then yesterday decide upon prop. Thank goodness for 1 day Amazon delivery which Jesica accomplishes.

Stand up. Get ready to speak and realize have to hold a giant microphone and so cannot also use clicker at same time otherwise will not be able to wave hands about. Work out thumbs up signal for Jesica to switch slides. Introduce clients. And let it flow.

Okay. Am not going to win awards for being the slickest most suave attorney in the room. That award goes to John Snyder the Philadelphia lawyer who has come in and taken over lead from Scott Wakefield (that must totally bite to litigate a case for 3 years and not be able to open). Not even the second most polished which goes to Pat Buchanan who in her elegant suit and well modulated voice, actually says with a straight face that accidents happen even if you do everything right.

But bet you that four and a half months later, the jurors will remember that in opening statement, the plaintiff lawyer wore a captains hat and quacked.

Midway through opening take off hat and turn back into lawyer. It ends as follows

We break. Dad is with Alysha. He took the light rail to come watch. Hug and kiss him. He is smiling and says bye bye. Talk to clients to make sure okay. We resume.

The two duck defendants say how terrible the tragedy is. But can’t say sorry because of a motion in limine (if they were truly sorry they would have paid funeral expenses). Then proceed to blame each other. State and City say they aren’t doing their openings now, will reserve. Which is a good plan. Except that they intentionally didn’t tell us so now we have a 2 hour hole in calendar.

Lunch recess. Throw holy fit while packing up. Elisa Hahn is trying to talk to me and am yelling out: what is your problem. Why didn’t you tell us before/ Corner Tad and say – what the heck. He looks down and says: Puz made me do it.

The duck driver takes the stand after lunch. He is not at fault, is not being sued and in fact is also suing for his own injuries. The most emotional part of his testimony involves explaining how the crash happened in sync with the dash cam videos from the bus that was struck and the companion bus that directly followed it.

Later after the day is over see the press coverage. Have to admit it is surreal to watch self march down the courtroom stage in a captains hat quacking. With the judge quickly covering her mouth.

https://www.kiro7.com/news/local/opening-statements-delivered-at-ride-the-ducks-trial-ontuesday/854188041

https://www.king5.com/article/news/local/driver-testifies-in-seattles-fatal-ride-the-ducksvehicle-trial/281-604810734

Day 12

WednesdayOctober17,2018

Judge is not in a particularly good mood. Jumps all over us today.

We lose a juror. Three days into testimony and he’s gone. Had problem with his employer. Then thought did not. Then did. Judge wrote letter. But the employer isn’t breaking the law by paying for only 3 days. Juror wants to stay but can’t afford it. Released. Judge then goes on the record and blames us for this. Says we knew about the employer possible problems and didn’t exercise a peremptory. This is incorrect. She denied his hardship request early on. The juror indicated no bias, had protected class status and a peremptory would not have been allowed. She doesn’t meet my eye. Am on the record three times at least requesting 6 alternates instead of 4 given the length of the trial. But she gave the defendants the deciding vote and surprise – they voted not to increase the number. There are now 15.

We are struggling to fill up the witness queu. First, the governments passed on openings which gave us 2 extra hours. Second, the defense is barely objecting cause when they do, they get socked between the eyes. They had predicted the combined 4 of them would spend 1/3 as much

time as plaintiff on cross. They are spending .01. Judge S says we better not waste any time. But we aren’t.

Andrew is in charge of the deposition testimony. Instruct him to ask Judge S if she can rule on a few objections so we can finish editing a deposition. He gets about 5 words out of his mouth before she tells him no and not to ask her again. She will not cut into jury time. Need to go through the bailiff. The words slice right through him. Oh dear. My fault.

Tell him not to worry. About an hour later she decides while scowling to go ahead and deal with the objections. There are literally 2 of them and we are done in under a minute.

Begin with an eye witness. Just barely escaped being smashed. Saw the canted wheel of the duck right before it veered left. He is a children’s book illustrator. So the whiteboard comes in handy.

Next up - battalion chief. Was a captain when we deposed him. A standout even then because his memory was so vivid. Plus he was on top of the duck directing extrication so he is in a ton of photos and can bring this disaster scene alive.

Don the bus driver goes next. Also a member of our plaintiff group. Dick Benedetti is cocounsel and they have a tight relationship. Don is the kind of client witness you dream aboutstraight, kind and true. This testimony will be both for the liability and damages case. He nails it. Then is followed by his spouse who is so adorable we all want to give her a hug.

There is not a minute wasted between a single witness and still Judge S is impatient with us. Decide she’s just having a bad day and decline to take it personally.

We are going to show a deposition next. Sound doesn’t work. Can feel Judge S’s ire growing as tech fiddles around and after literally an entire two extremely long minutes, decide they can figure it out and we will call other witnesses out of order.

Now here’s the thing. It is not easy to cast a trial. Especially when the defendants sandbag your schedule within the first few hours. But we persevere. And when things flow beautifully – do we get praised for being on task and efficient. Oh no. Today she’s constantly bracing herself for our potential screwups.

Put on the Gesners whose co-counsel are Brian Krikorian and Brad Davis. They were sitting in the back of the duck. Manage to avoid crying when Susan Gesner breaks down on the stand. Watch as Jack Snyder actually dares to cross examine her. Trying to prove she has failed to mitigate her damages by not getting psychological treatment. Bad move on his part. He slinks back to his corner.

Finish up with a 15 minute deposition of a duck captain from Branson Missouri. Seattle Duck attorney Jack Guthrie took this dep by video conference. In July 2013, a duck coming down a

mountain lost its wheel due to the same axle fracture that happened here. Except that duck was going about 2 mph. When asked how he would have felt if he had been going 35 mph says would have had no control of the vehicle. Would have been terrified.

Before we leave, get another scolding from Judge S. About a plaintiff witness referring to testimony they heard when observing the trial. She doesn’t want clients in the courtroom when other people are testifying about them because they can’t testify about what other people are saying. Agree with her. But she persists that they shouldn’t be in court other than to testify. Say: are you telling me you are not going to let plaintiffs’ attend their own trial. Spar a bit – me at least politely. And then we are done for the day.

Day 13

ThursdayOctober18,2018

Today’s uber driver is from Romania where everyone crushes grapes in vats at their homes. Some is saved as grape juice for the kids. The rest is put in a bottle. In 6 months there is good wine. Better than you can get at Safeway. He would like me to use uberXL versus uberX. The numerous reasons range from the safer more superior status of his SUV to what difference does a few more bucks make if we are all going to die anyway. Drops me off.

Get through security without beeping. Climb the staircase. Enter on the dot at 8:30 as ordered by the court so we can address pretrial matters. 8:45 Mr. Ulmer announced her honor will be arriving in 7 minutes. Her bus has been delayed again. She arrives. Tells us not to worry but another juror is complaining that his employer won’t pay him for the duration of the trial. Since he never raised it before she won’t let him off. Three minutes of pretrial wrangling ensue. Ride the Ducks Seattle says: we anticipate plaintiff will elicit testimony that our employees didn’t go to the scene. We anticipate plaintiff will say our employees refused to be interviewed by the police. We anticipate XYZ and want it all excluded. Wonder if they have teams of people who are focus grouping my brain. Good luck with that. Jury enters.

Seargent Norton then lead detective in charge of the investigation takes the stand. Pull up the white board and write out the list of every person in the department who worked on the investigation plus their role. The white board is filled.

Jack Snyder (Ride the Duck International) asks the court if we can move back the whiteboard as it is blocking his view. I say: no not done with it. He doesn’t hear me and starts moving it out of the way. I stop him and say: am not done. He says: oh I thought. Judge S says: she is not done put it back. He says: We can’t see. Judge S says: you can move.

The board is in a perfect position. Blocks that entire side of defense lawyers from view.

SPD did the investigation in tandem with the NTSB. The duck defendants previously brought numerous motions to keep out all mention of NTSB and NHTSA which they lost. He explains the total station, 3D scans, measurements, road marks, gear fluid, axle housing, and other details. We play a minute and a half of his audio interview with a key witness.

Judge has previously alerted us to an earthquake drill. 10:15 alarm goes off. Duck cover and stay down. Am under desk look around and the courtroom looks empty. Reach arm up and pull laptop down so can keep working. Alarm sounds. We all get back up.

Seargent concludes neither bus or duck driver was at fault. The axle housing failed causing the duck to lose control and strike the bus.

This is the first witness that multiple defendants cross. They are crossing not to impeach but in order to try to elicit more helpful information to their sides. Steve Puz AAG wants to pound more on how the cause was the duck (and he will later argue not because of the bridge); Seattle Ducks and Ride the Ducks International tip toe around a few minor points. But it is Vanessa Lee City Attorney who has the most ambitious plan.

In direct the Seargent testified that he did not engage in an analysis to see if the bridge played a factor in the crash. Made sure to pin him down on that. Because in his deposition, he speculated that if there had been a median barrier perhaps it would have made the situation worse because the duck has a prow and maybe would have launched over the barrier and maybe even fallen off the bridge.

Vanessa wants that testimony in. And she wants it in bad.

When my girls were little, I used to laugh about but also encourage their ability to stay on message. But mom why can’t I have it. If you let me then I’ll clean my room. Why not. Please. You said you’d think about it. Well did you think about it. I’ve thought about it and I an 100% sure I need it. This would go on and on until usually I caved.

There’s a time and place for persistence. But asking a dumb question for an improper purpose in the middle of a televised mass transit disaster trial is not one of them.

She asks for his opinion on whether the bridge played a role in the accident.

K3: Permission to voir dire the witness your honor.

Judge S: Go ahead Ms. Koehler

K3: Seargent didn’t you testify in your deposition that you did not determine whether the bridge was dangerous or not and did not perform an analysis in that regard.

Witness: I would need to see my deposition

Judge S: Do you have his deposition

K3: Jesica can you please get the hard copy of his deposition. Turn to Vanessa. Ms. Lee can I borrow your copy – which she is holding because she is so terrifically focused on getting in his discovery speculation.

Judge S: What page counsel.

K3: Am able to say 55 right away because read depo last night and made note.

Judge S is looking at her monitor reading those pages.

Judge S: Objection is sustained.

VL: But your honor.

Judge S: You will need to lay a foundation first.

Vanessa cannot figure out how to lay a foundation and instead asks the same question she did at the beginning.

K3: Objection

Judge S: Granted. You need to lay a foundation.

VL: Well, Ms. Koehler borrowed my copy of the deposition and I needed it to…

Judge S: Counsel you need to lay the foundation.

Vanessa cannot. This is a painful process and goes on and on until Vanessa decides to go for the gusto and asks almost the exact same question again for the fifth or six time but this time also begins to answer it for the witness.

Am incredulous and begin to object when Judge S literally and most spectacularly roars – Ms. Lee! We all jump. But this shuts Vanessa down before she can inject rank speculation.

You would think that would be the end of it but oh no. Long pause. Vanessa asks the witness if he feels he is capable of forming an opinion regarding the impact of the bridge configuration could have had. He says yes. Vanessa yet again tries to elicit the opinion. Judge S finally and equivocally ends the nonsense saying: even if he was capable of forming an opinion in his deposition he testified that he did no such analysis.

Only then does Vanessa sit down. I turn to Andrew and whisper in his ear: bet Puz (the AAG) is really happy about that whole mess.

One quick Fire Department Safety chief later and we are ready for the Derschmidts – the father (expouse of) and two sons of Claudia who was killed in the crash. Co-counsel Tim Loranger has been one of the leaders in our plaintiff case particularly the first year when we had to navigate all things technical including the NTSB. He has prepared them perfectly for this day.

Two German speaking translators have flown in from California. They sit in the box adjacent to their witness. Not only do they translate perfectly but they are a calming warm presence. The testimony is heart breaking. The eldest son becomes unable to continue. We take an early recess. I walk behind the tv. Grab a tissue. Allow tears to fall. Wipe up. Return.

It is about 3:30 and am about done. Glad wore slacks and ballerina flats today because according to apple watch have been standing the entire time. The defense is not asking any questions on cross. It is all plaintiff case. Then Tad (City) pops up. He has questions for the youngest son, His tactic is to try to lighten the mood. Asks if the teen has gone to Golden Gardens where the last photo of his mom was taken (which is still being projected). When F says yes, Tad says –did you skateboad down that street.

Am thinking – this is a highway death case and you want to know if he skateboarded down a notorious road. Am also thinking – you don’t have the right to try to act nice and try to minimize this moment. You are no friend of his. But when Judge S asks if have any more questions, I let it go.

It is 3:53 when the family is finally done. Judge instructs us to call our next witness. This time we are ready. We have a deposition that is 40 minutes long. She tells us to get started. We do. At 4:01 she calls it a day.

Correction of yesterday’s entry: The Gesner co-counsel are Brian Krikorian and Brad Johnson – apologies for the typo.

Day 14

MondayOctober22,2018

Just spent a weekend in lululemon and now it is time to get court ready again. There have been times over the years where have resented having to figure out what to wear. Including whether to repeat or not in a long trial. But dressing up for court is really like putting on a costume for the big show. There is a stage and audience and what we wear is a part of the whole process. So for the most part, don’t whine. Messages are being sent by what we wear in court.

Today am more modern than usual. My collection of jackets dates back several decades. Honestly except for the oversized ones with giant shoulder pads – they just don’t go out of style. Am wearing a new one that is slate gray with frayed edges over a silk black white and gray leopard top and black slim gap slacks with fringed ankle boots.

We start off by finishing a 20 minute video of a mechanic from Branson Missouri who retrieved Duck 14 which lost its wheel in July 2013 during a tour. He says all kinds of good things for our side with his soothing drawl.

Accident reconstructionist Keith Conrath is next. We start off by explaining that until 2 months ago, he was not our expert. His partner Larry Tompkins was. Larry passed away in August but before doing so he handed over all of his work to Keith. Larry was a wonderful expert – Paul Whelan introduced me to him and both now are resting in peace.

Keith is in the same model as Larry – logical, orderly, no-nonsense and can do the calculations while he’s sitting on the stand. Steve Puz jumps up to do the cross. Puz just irritates me to no end. He can be so petty and mean. His questions include:

You didn’t go to inspect the duck nest (shop); you didn’t examine duck 6; you didn’t examine the bus.

Well of course he didn’t – because Larry was the expert who did all that. Keith wasn’t hired til 2 months ago. So for redirect show a photo of Larry inspecting the ducks.

Call the first fire fighter who arrived at the scene. Great memory – sets the stage for…

Yuta Masumoto. First bus passenger to testify who survived. Yuta did not speak English 3 years ago when he arrived in Seattle. He speaks it now but wanted an interpreter. Convinced him to go outside of his comfort zone and speak without. This turns out to be a good decision. He doesn’t speak perfectly – but he testifies perfectly. After we set the stage of getting on the bus, going first to the park, loading back up and heading towards the bridge, we pause and play a video from another passenger’s cel phone. It shows the view while the bus drives over the bridge. You can see the sights. Suddenly the phone flips around and around. There is noise and crashing. Then the phone is facing the back of a seat and just stays focused on the same piece of nothing. There is silence. Then the moans begin and last for almost another minute. This is perhaps – even more than the bus dash cams - the most impactful piece of evidence shown. Two of the jurors visibly start shaking. Because you are straining to hear what people are going through. And then Yuta talks about what happens to him.

It is entirely moving. You can see a clip of it here. https://komonews.com/news/local/survivortells-jury-i-though-i-was-going-to-die-in-ride-the-ducks-civil-trial

This young man was in Harborview the trauma hospital and a rehabilitation hospital for about 3 months. In a truly silly move, Scott Wakefield and Tad Seder try to cross him. They should have left him alone.

We are then supposed to skype with Yuta’s dad in Japan. But our computer decides to freeze up. It is running through Prolumina and their system is messing with our system. Have done skype testimony for at least 10 years and this is the first time have had to give up. Have no choice because Judge Shaffer is sending out – what the heck hurry up vibes. Our team can’t make it

RTD Aurora Bridge Trial Diary - 33

work and we switch to our next witness whom we lined up just in case. The jury is watching all of this since we are sitting right under their noses.

Barrier engineer expert takes the stand. Qualify him. He begins to take us through his PPT. And 15 minutes later court ends for the day.

Day 15 TuesdayOctober23,2018

The real reason write down the day at the beginning of each entry, is because have no idea what day it actually is. Life has narrowed down to a well worn path between house, courthouse, a run around the neighborhood, and one drive on the weekend to visit baby Liam. Sigh he’s so sweet and darling. Smiled at me repeatedly on Saturday.

Need to get up at 6:45. Bargain with snooze button until 7:15. Will have 40 minutes to get out of here. Chose outfit last night which shaves some time off the process. Black with white speckled gap slim slacks. Scoop neck T. Max Mara short sleeve slightly faux furry black jacket and double buckled flats. It is chic in a slightly eclectic way which goes with the whole –plaintiff lawyers are not the same as defendant lawyers persona – that am channeling in this trial.

Watch uber driver on app. He makes a wrong turn. Figures it out. Turns around. Arrives. Blames the fog for messing up GPS. Today X is the same price as select so am in a white audi. Think maybe the driver will be quiet but oh no. Asks why am going to the courthouse and when learns am a lawyer, wants to know who to vote for judge. Answer: Justice Gonzales. Then begins a philosophical discussion of voting for judges versus appointing. And why do they send out voter pamphlets when it should be a link to a website where the candidates would have podcasts. This leads to city hall and the increase in traffic misery. And where are our taxes going. His knees hurt driving but two years ago lost his job at Nordstrom due to Amazon. And we never should have voted for the $15 minimum wage because rents have gone up 50% in the past few years and maybe it’s time for him to move.

It’s exhausting to think about all these things. Hop out at 3rd & James and consider wearing ear buds the next time.

Meet Tad and Vanessa in the security line. They are dragging luggage and head for the elevators. Climb to the 9th floor. TV crews are setting up. Judge told us to be here at 8:30. Arrives at 8:50. Jury comes in at 9.

Today, we seem to have finally settled into more of a rhythm logistically. It is a harried rhythm – we are moving almost a third as fast as we thought we would. But it feels like we are more in sync.

Our PhD barrier expert takes us through the paces of his presentation – bless him for creating his own PPT. The challenge with an A quality expert witness like this is to avoid pure narrative. Not only can it draw an objection, but it will lull the jury to sleep. The governments gambled and decided to not do their opening statements since we focused so heavily on the duck defendants. But here we are – laying out a case that they have had no opportunity to frame first.

Steve Puz does the majority of cross. He’s loud and playing to the jury wagging his eyebrows and fingers and glasses. He goes down a line of questioning meant to side track the jurors: you don’t know what traffic engineers would do or structural engineers do. This is true since this is an engineer who is only testifying about the performance of barriers. Throwing out anything he thinks will confuse the jury. Don’t object. Let him try to go for it. Asks what the ADT average daily travel is and the expert says he thinks 70,000. Puz jumps on this – you don’t know, you didn’t study it, you’re guessing. Decide will use this line of questioning as an opportunity.

Redirect…….

Here is the story on the expert. https://www.kiro7.com/news/local/opening-statementsdelivered-at-ride-the-ducks-trial-on-tuesday/854188041

The rest of the day is a nonstop adventure with two more clients both of whom were also eye witnesses from other vehicles. Two medical examiners who go through the cause of death of three of our plaintiffs. And we begin to question the director of safety for ride the ducks Seattle. https://komonews.com/news/local/witnesses-describe-ride-the-ducks-carnage-from-differentperspectives

Andrew drops me off on way back to office. Eat bean soup that Alysha made. Go for run. It is slightly raining. Darkness comes just after 6. Headlamp batteries stop working. Can’t see. Cut run short. Get

RTD Aurora Bridge Trial Diary - 35

home. Do a load of laundry. Set up laptop and extra monitor on kitchen table. Settle down to prep for tomorrow.

Trial day 16

Wednesday October 24, 2018

Jury is filing in. Am standing off to the side to let them pass. Realize still wearing sneakers. Judge has noticed and chuckles. Rush to chair. Sit and buckle ankle straps of heels. This looks better with stockings, black criss cross in the front bcbg skirt with raspberry toned red Moschino jacket over free people wildly batique-ish top with key hole neckline. Costume bangles accompanying apple watch.

32 years ago my supervising partner had just come off the superior court bench. This was back when there were very few female judges in Seattle. She gave me strict rules for court appearances. This included tailored suit, stockings, no visible jewelry except wedding ring and an ugly broach – in her case a bejeweled lizard that looked like it was climbing up her chest. She had an old watch that she would sub out her expensive one for. There was no dangle or shine allowed. And my hair had to be shellacked back. She would fall over in a faint if she could see me now.

Moti Krauthammer is Director of Safety for Ride the Duck Seattle. Chose him as the first witness, because…well…because having taken his deposition knew it would be a disaster for them. He fought me the whole way through his deposition, never answering questions and defending his company to the hilt.

He is in a blue ill fitting sports jacket with a bright yellow tie – company colors. Large glasses. An extreme comb over hairdo. He rambles so much that without my request Judge Shaffer repeatedly instruct him to answer the questions.

Have two choices: attack or sweetly lead him to implosion. Give this some serious thought.

Nala used to have severe leash aggression which made it difficult to go for a run with her. Scolding did nothing. Leaning down and giving her frown – nothing. She did not respond ever to negative suggestion and still to this day will give you a puzzled look. Instead came up with a positive reinforcement system. Filled pocket with peanut butter doggie treats each the size of a pencil eraser. When we approached a dog if she went after it, no treat. However if she could pass it without lunging/barking/acting totally crazed – she got a treat. Usually she chooses treats. But every once in a while, she just can’t resist.

There is nothing more would like to do than rip this witness to shreds. It would be immensely satisfying. There is nothing more would like to do than rip this witness to shreds. Instead, no matter how much he prevaricates, evades, or tries to plead his case, do not so much as raise an eyebrow. Ever respectful. Patiently asking questions sometimes repeatedly so that he can fully

https://www.kiro7.com/news/local/opening-statements-delivered-at-ride-the-ducks-trial-ontuesday/854188041

https://www.king5.com/mobile/article/news/local/seattle-ride-the-ducks-operation-director-voicedconcern-before-deadly-crash/281-607783675

Day 17

ThursdayOctober25,2018

We arrive. Judge Shaffer enters. Tells us that she has something to discuss. First thought is – what have we done now. But that quickly passes. The jurors asked Mr. Ulmer the bailiff if they could talk to the court counselor. Yesterday before the medical examiners testified and we showed their investigator’s scene photos the Court told the jury that this service was available after trial. But they have decided they want to talk to the counselor right now. Judge tells us that she is going to decline as it could end up being a comment on the evidence or otherwise interfere with the jury’s role in this case. But she will let them know after the trial the resource is offered. Can literally feel the defense team’s stomachs drop.

My outline for witness testimony is the PPT presentation. One for each witness. In smaller trials do all of these myself. But there is a production line involved in creating them for this trial. Melanie or Lisa pull all of the exhibits referred to in each liability witness’s deposition. Use all the photos from our plaintiffs’ damages files. Stick the respective materials into the witness’s PPT. Andrew does a sweep to make sure all of the motion in limine materials have been redacted. Then my turn to fine tune and add whatever else want in there. Move the slides around to address the topics in the order wanted.

This method ensures we get in all the exhibits needed for each witness and allows for an organic form of questioning while also keeping me on point

We need to finish Ryan Johnson the Director of Operations Ride the Ducks Seattle. Slash all but 3 more PPT slides. Yesterday that company was destroyed. But there are other defendants to blame. Want to return the jury’s focus to the other actors. Finish up in about 20 minutes.

Jack Ryan from Ride the Ducks International rises. He places on the podium printouts of every document he wants Prolumina to show to the jury. His yellow tablet is filled with questions. Immaculately tailored with hair slicked back. He speaks strongly slowly and deliberately Leading questions. Argumentative questions. He is letting Johnson have it.

Pat Buchanan (attorney for Seattle Ducks) objects constantly. Many times this works as Jack is not familiar with the process of filing a deposition and then using it to cross the witness. He tries to figure it out for two questions then gives up. This is better for him anyway. He can instead engage more directly with the witness.

He tells Prolumina to put this slide up and put this slide down. After a while you can kind of tune it out, but it does slow down the exam and prevents it from being more fluid. Since spontaneity is not Jack’s style his exam doesn’t suffer for it.

He starts by trying to show the jury how the ducks companies are completely separate. Then pounds Johnson into the ground. Even though he will win the point, he has created vulnerability for his side by making out as if his own clients are blameless and entirely wonderful.

The problem with pulverizing Seattle Ducks, is that if the governmental agencies are found even 1 percent at fault (and if Ducks International has no fault), well there is joint and several liability. The government needs International to have a large share of responsibility. After the ducks go after the ducks, Steve Puz AAG gets up and leads Johnson through a series of questions that shift the blame to International. Remember this is Puz who likes to jump down the throat of anyone he can. Instead he is sweet and kind as he tries to use the witness to point the finger back at International. When Judge Shaffer asks Pat Buchanan if she has any questions of her own client she says no. She just wants him out of there.

The jury has about 20 minutes of questions that reveal just how appalled they are.

Our next witness will be one of the Seattle duck captains. We decide to scratch him. Need to turn the focus back to Ducks International. Enter Professor Wayne Reitz.

Dr. Reitz is a former engineering professor of metallurgy who has been in forensics for 20 years. This is only his 3rd time testifying. He is straight to the point, humble, and does not use any bells or whistles. We tell the jury about his Parkinsons because he doesn’t want them to think his left side tremor is something that it is not. The only thing this does is make them like him more. Start off by showing them three pages of his meticulous handwritten notes of formulas and calculations which he talks about for a few minutes. They find this fascinating even as the numbers go in one of my ears and out the other. Just did this for illustrative purposes. Establishes his credibility instantly. The jurors are dialed in and taking copious notes. After the first hour of his testimony during the lunch break a big exhibit arrives. It is the axle housing and some of its pieces. Jack Guthrie figures out how to move it up to the stage with the help of a dolly and several other folks. It is laid out on a large folding table. By now everyone is trying to figure out how to shield it from the jury. Andrew says – why don’t we just ask the court to admit it before the jury comes in. Look at him incredulously. Where’s the drama in that. We cover it with a black table skirt graciously provided by Mr. Allen of Prolumina.

The jury files back in. They can tell something cool is about to happen. Move for the admission of the parts. Dr. R comes down for the unveiling. Gently lifts the table skirt off the axle housing while the jury leans forward. While he is explaining the pieces am holding the microphone for him. Don’t hold it perfectly enough. Judge S scowls: aren’t there two microphones. Where is the other one. Remind her the witness has Parkinsons and that’s why am holding his microphone. Oh she says. Which may be an apology.

The jury is allowed to come down and look at it. Some of the jurors are peering deeply into the caverns of the axle housing. They file back to their seats. We then take them through four parts that have been cut from the housing by the NTSB – though the jury isn’t told that is who has done the work. Move for publication and one by one the pieces in their baggies wind their way through the jury box. Twice the judge gently prompts the jurors to move more quickly promising they can see them later during deliberations. But the jurors will not be rushed and at the end of testimony we will learn that is because they are writing even more detailed questions to ask of Dr. R.

He and I get through the rest of his testimony Now in the normal liability case, we would be bracing for cross exam. But this is no normal case. We lay down testimony. But no one is hitting the ball back at us – just at each other. Enter Scott Wakefield for Ducks International. He scores points for his side because Wayne will not prevaricate. Says yes if the collar had been welded per the service bulletin the accident would not have happened. Jack Guthrie for Ducks Seattle scores a few points for his side for the same reason. The metal used for the tab was wrong and the welds were crap. The same goes for Puz. Even Tad asks a few questions for the City – the road didn’t do it. This is the longest cross of the trial so far. And it isn’t even cross. No one challenges any of Dr. R’s positions. They just tried to coop him for their own purposes. At this point they probably don’t even need to call their own metallurgists. The only one who will be believed is Dr. R.

The jury questions are long, detailed, and so sophisticated that basically, should just turn the job over to them. We are back in chambers and Judge Shaffer is smiling delightedly as she sorts through the stack Return. Judge S asks all of the questions which takes another half hour. Our final witness, plaintiff Mazda with co-counsel Dough Phillips is unable to testify. First time of the trial that we have someone come down for nothing. First day of trial that we have not heard from one of the plaintiffs.

We stay for another half hour so Judge Shaffer can take our pulse on the intial set of jury instructions that Mr. Ulmer has cobbled together. He’s done a darned good job considering that this is a product liability, highway design, common carrier negligence case involving 5 defendants and 44 plaintiffs.

Tomorrow is Friday and we are squeezing in half a day of trial.

Day 18

FridayOctober26,2018

The night before:

10:04 p.m. Scott Wakefield (Ducks International) sends an email to the court asking to discuss the troubling issue of jurors asking to see a counselor due to their emotional distress over seeing scene photographs.

10:38 p.m. K3 objects.

This morning

6:54 a.m. Scott emails the court: defendant is worried about delay and is willing to forego briefing to address the issue.

7:23 a.m. K3 emails: plaintiff is unwilling.

9:53 a.m. Garth internally circulates the Washburn case which supports the showing of photos.

9:54 a.m. K3 forwards the case to the court

9:53 a.m. Lisa is already drafting a reply to the motion we haven’t gotten.

11:40 a.m. Andrew weighs in (multiple times)

12:22 p.m. Brief has been finished. Instruct to hold since defendant hasn’t filed anything and don’t want to make a big deal about it if don’t have to.

12:25 p.m. Scott files a brief entitled: RTDI Brief on Issues Raised by Jurors Request for Counseling, Including Admissibility of Gruesome Photographs

12:26 p.m. Andrew prompts me to have it filed.

12:26 p.m. Lisa tailors the draft to the motion filed.

12:57 p.m. Jesica files brief entitled: Response Re Motion Re Scene Photos

We arrive in court for half a day. We are downstairs crammed into Judge Shaffer’s usual court room because upstairs in the ceremony room where we are conducting trial, the judges are anointing someone.

Judge says she has our briefs that she never asked for. Tells the ever lurking Mike King “preservation of error counsel” that he can back off from the bench and take a seat. Notes that she denied the motion in limine and allowed us to present autopsy photos – however we chose not to do so and instead presented scene photos. The photos were not gruesome they were scene photos. No motion in limine had been filed over those photos and none of the defendants had objected to their entry. She handily slaps all of them down. The jury enters.

Bruce Olson PhD, our forensic psychologist, was deposed for three weeks. He has examined all but one of the living plaintiffs The defense detests him. They’ve hired a bevy of counter experts including one who didn’t examine anyone and is going to testify Dr. O’s protocol is whack. They can’t wait to go after him. Have been given permission to cross after each time he testifies about a plaintiff.

While the defense has no choice but to acknowledge the death and catastrophic injury claims; it is treating all the rest as if they were merely bumped and bruised from a standard car crash. They are acting as if PTSD is a ploy and intend to argue failure to mitigate because very few of the victims have actually undergone psychological treatment.

Spend half an hour qualifying Dr. O. His background is extensive and impressive in particular on issues of trauma. Among his many accomplishments, he helped create a program to provide debriefing and counseling to first responders exposed to trauma. Jesica moved two of our giant boards downstairs last night that Duane the graphic artist made. They are the headshots, age, and residence of the 43 plaintiffs. Just like you would see on tv when showing the victims of a mass casualty. Talk about what it took to evaluate this many people from around the world. The jurors are transfixed. One of them stares at the boards seemingly without blinking for a good ten minutes.

The small courtroom is outfitted with multiple outlets taped down, presentation tables, hdmi cords and a small tv. Prolumina has set everything up for the defense cross. Try not to laugh.

The senior defense attorneys have delegated the job of attacking Dr. O. My back is to them as we begin direct. Don’t realize the third string lawyers are up. We are talking about things like – what is stress. He has written out and is reading from a few pages of notes about the overall assignment. The defense table erupts in objections. Strident, sometimes harmonized objections: He’s reading his notes... We don’t have his notes What is he looking at… Judge S bemusedly allows Jack (Seattle Ducks) to march up to the witness stand, grab and look at Dr. O’s notes. Each time Dr. O reads his notes they object.

We take a 15 minute mid afternoon break. The defendants run around yelling they want Dr. O’s page of notes – the judge said you have to give it to us – me snatching it out of their hands – them falling me around trying to get it back – me telling them to back off until I can read it – me reading it and seeing it is all of a bunch of nothing – them pacing – me handing it to them so they can rush off to copy what is essentially a wiki style page of notes explaining an overview of ptsd.

Jury comes back in. To speed things along decide to just put the PTSD diagnostic criteria on the screen. They object to that. Judge S gently tells Dr. O that he can read his notes but then he has to pause before he gives his answer. He tries this a few times. Biffs occasionally. The defense gaggle are squawking. Ask a question. He looks at his notes. Puts them down. Looks forward and says aloud: pause. Without meaning to. But trying to do it right. He begins to answer as the jury erupts in laughter – the first time they have laughed the entire case. Everyone is laughing except the dark flock.

We finish the overview. Start to talk about Don Clouse the bus driver. Dr. O pulls out a foot high stack which is just part of his file. He doesn’t have to look at hardly anything. This part of the testimony is the expert’s forte. He knows these folks well because we placed no restrictions on how much time he could spend working up their claims. The range was from 10 to 20 hours of interview time – depending if an interpreter was needed with another 6 to 8 of testing. This process was no joke.

3:30 can sense that the defense lawyers are ready to move in for the kill. However, we are not done chatting about Mr. Clouse. 3:45 the tension behind me is palpable. They are thinking – how are we going to do cross. Well we won’t finish it but we can get started. 3:55 can feel the dawning realization back there. 4:00 Judge S calls it a day.

Smile over at Andrew and give a little wink. Because on the heels of jurors asking for a counselor, and introduction of the ptsd component of this case, the plan was to run down the clock before the weekend break. And we did.

Day 19 October29,2018

Wake up too early. Go back to pretend sleep. Lie there. Perform countdown of how long it will all take. Remember Alysha has gone to the cabin with Nala and the house is totally quiet. No Nala to feed or take potty. Or to laugh with. Reduce countdown. Thirty minutes later have donned black cream and red plaid slim slacks, red shirt with ruffles, favorite Boss black jacket and pointy toe heeled boots with tassles that swing back and forth.

One of the challenges in representing 40 people in a mass disaster trial is to put on their medical damages cases without taking weeks and weeks. We have been streamlining the case not only since before trial began, but also during trial. This is a bit painful especially when it involves not using some of the great illustrative aids we created. And kind of nerve wracking as we consider tossing out evidence.

Our first witness is Dr. Kleweno (phonetic: Klavano). He was the primary orthopedic for two of the seven plaintiffs in our group who were taken to Harborview. He was however also the attending. Harborview is an academic based trauma center. After being a resident, then completing his fellowship, Dr. Kleweno became the attending in charge of the trauma orthopedics department. This means instead of having a two-fer. We have a seven-fer.

Andrew and Debbie meet him in person at his office to see if he will agree. He says it will be his honor. He speaks with me a few days later to double confirm his role. Melanie pulls together his powerpoints. She also prints out all the admit, discharge summaries and op reports and puts everything into a binder perfectly tabbed. Hand this to him at the beginning of his testimony. He never opens it…sorry Melanie…but the PPTs were great.

Only after we have been going for about an hour of his testimony do the defendants realize he’s going to be talking about all seven. You can hear rustling and whispers. Then the peppering of hearsay and lack of foundation objections. But it is too little too late. The doctor has already established a dominant presence. Judge S overrules everything.

We have big body charts. By big mean they take two easels to hold up. Enormous. One for each plaintiff. During the triage process of the rescue, the worst injured were taken to Harborview. Instead of having to call a different doctor for each plaintiff, or deal with different specialties such as internal medicine, Dr. Kleweno is the one stop shopping network of treating

physicians. The fact that he graduated from both the U of W as an undergrad and Harvard Medical doesn’t hurt.

We get in everything on the charts which he uses to educate the jury along with Aunt Sally the skeleton and the PPT which includes the front page of the op notes – more for dates/timing than anything, along with 3D radiology demonstrative videos of all the fracture sites, and a couple other personalized items. Dr. Kleweno roams the courtroom with a pointer teaching the jury everything they could possibly want to know about comminuted acetabular fractures, transverse process fractures, and how blunt force trauma works to create impaction injuries. Aunt Sally gets quite the work out. He weaves in a liver laceration here, a spleen laceration there, arterial dissection, the difference age plays in trauma, and it is all just absolutely lovely.

After almost 4 hours of direct, Defendants have no cross except for Tad (City). He gets up and asks two silly questions: a) didn’t the doctors at Harborview have a big meeting that day so more staff were at the hospital – the doctor looks at him blankly and says doesn’t remember; and b) isn’t Harborview great. The jurors have these questions:

• How much of the surgical hardware is removed, and how much remains for life.

• Can tibial plateau fractures contribute to a knee replacement earlier than had the injury not occurred.

• Can a greater trochanter fracture lead to tendon issues later in life.

• What kind of limitation in flexibility if any would the sacrum fracture and the post left iliac bone fracture cause after the injury has healed.

• In terms of the sacroiliac injuries, can damage in that region cause long term issues with that region of the spinal cord.

• Is the intermedullary nail permanent.

• If the nale is permanent are there long term side effects from having less bone marrow.

• Can the pelvic fractures lead to any complications for childbearing later in life.

• What kind of nerve innervation is there near the coccyx.

• Can the nerve innervation near the coccyx contribute to lower back pain later in life.

• How probable is it that the vertebral fractures can contribute to spinal arthritis.

• When vertebral fractures occur, is the load sufficient to also damage the intervening discs.

• Do acetabular injuries, even when treated, contribute to arthritis.

• As a young patient is facing years of having an artificial hip, does that increase her risk of reacting to the implant materials.

• Do fractures of the tibial plateau commonly cause discomfort after recovery is complete, say, two years down the road.

As the doctor answers all that are within his field, the defense lawyers do their best to maintain their fake pleasant facial expressions.

We are an hour behind. But it is has been completely worth it.

Have too many witnesses lined up. Are able to get on one more – plaintiff Mazda Hutapea. She was 18 years old during the crash. One of the patients just discussed by Dr. K. She touches all of us with her heartfelt testimony. Both Scott (RTD International) and Pat (RTD Seattle) cross examine her. This is the first real cross of a plaintiff that has occurred in the case. Scott reads off all of her accomplishments since the crash – having her endorse how great she’s doing. Pat shows a bunch of instagram black and white copies of instagram pages from hikes, to show how she’s active and physical again. The jurors write down the dates.

After the jury leaves for the day, Judge Shaffer addresses the latest state of draft jury instructions. Then she tells us about two juror issues.

One juror came up to and told Bailiff Ulmer that he felt he had a moral dilemma. After hearing the testimony of metallurgist Reiz last week, he became concerned that the ducks on the road could also fail. Judge S will tell him to keep his own counsel.

The second juror advised the Bailiff that he keeps a journal which includes his writings about the case. Judge S will tell him and all jurors that there is no prohibition against keeping a diary if you have done so before, but not to review and consult that document while the trial is pending.

Pack up. Walk to nasty cheap parking garage Andrew insists on continuing to park in. Drops me off at home. Open door. Nala is performing cork screw jump manuevers and begs me to take her for a run.

Solicitation for worthy cause (my daughter): Alysha is going on a train trip across the US for a writing project. If any friends/colleagues are open to having a guest for 2-4 nights please email her alysha.koehler@gmail.com. Here is here approximate schedule:

Mountain West [December]

• Colorado Springs, CO: 12/12 – 12/15

• Denver, CO: 12/15 – 12/18

• Cheyenne, WY: 12/18 – 12/19

• Salt Lake City, UT: 12/20 – 12/23

Midwest [January]

• Williston or Fargo, ND

• St Paul Minneapolis, MN

• Milwaukee, WI

• Burlington, Osceola, or Des Moines, IA

• Omaha or Lincoln, NE

• Kansas City, MO

• Wichita, KS

• Oklahoma City, OK

South + South Atlantic [February/March]

• San Antonio, TX

• New Orleans, LA

• Montgomery or Birmingham, AL

• Atlanta, GA

• Jackson, MS

• Greensboro or Raleigh, NC

• Charleston, SC

• Anywhere in FL

• Savannah, GA

• Richmond, VA

• Baltimore, MD

New England [March/April]

• Wilmington, DE

• New Haven, (or anywhere CT)

• Providence, RI

• Portland, ME

• Hanover, NH (or anywhere in NH)

• Montpelier or Burlington, VT

• Jersey City, NJ

• New York, Buffalo, or Syracuse NY

Midwest/South [April/May]

• Cleveland, OH

• Detroit, MI

• Charleston, WV

• Indianapolis, IN

• Louisville, KY

Day 20 October30,2018

8:16 a.m. the duck defendants file a motion to bounce Juror No. 9 claiming misconduct. They want him gone. Alternately they want her to ask him these questions obviously dreamed up by their jury consultants (Tsongas and Mind Matters):

Aurora Bridge Trial Diary - 46

1. Yesterday, you spoke to the bailiff about an ethical concern you had. Could you please state for the record the nature of your concern.

2. When did you begin to have this concern. Why did you mention it when you did.

3. Have you discussed this ethical concern with anyone besides the bailiff.

4. Since becoming a juror in this case, have you done any independent research about the case or issues.

5. Does your ethical view cause you to feel uncomfortable sitting as a juror in this case in which hone party is requesting money damages against another.

6. Given your ethical concerns do you lean toward one party or another in this case. Is there any reason why you might not be able to try this case fairly and impartially for both sides.

7. Would a jury of 12 people who share the same ethical concern be able to be a fair and impartial jury to all sides in this case.

The Court does not hear the motion. She is doing deposition designations with Andrew and the defense lawyers. At 9:00 Bailiff Ulmer brings in the juror. Judge Shaffer does a beautiful job. Tells him he can’t talk to anyone including the bailiff about his impressions. Asks if he’s made up his mind, if he can be fair, impartial, wait to the end. Yes yes yes yes yes. Ducks defendants are stewing. They want her to grill him even further and she won’t.

The journaling juror comes in next. This is anticlimactic. Go ahead and journal but don’t share or talk about it or consult it. He leaves and then the whole jury comes in together.

Erica is Mazda Hutapea’s older sister by five years. They live together. She is equally adorable and does a sweet job in explaining their close relationship, what happened after the crash, and the changes in her sister who no longer confides in her. Pat (RTD Seattle) crosses her on the Mt. Rainier hiking photo under the pretext of what year did she say it happened. Really she just wants another opportunity to show a hiking photo. Vanessa (City) decides to impeach on the scintillating subject of whether the sisters confided in each other before. Neither attorney can figure out how to impeach with a deposition. Whereas Pat cuts it short, Vanessa spends a good 5 minutes – an eternity of time when we are all sitting there counting our fingers – fumbling with the dep transcript, then pointing out each word to the witness while she has her read along. And for what. They are crossing lay witnesses over nothing. Probably because the jury consultants told them to do something to disrupt the flow of the plaintiffs’ case.

Next up is Sarah Chido – the duck captain who thought something was wrong with Duck 6 four days before the crash. She hated me during her deposition and she hates me still. She stomps up the stand and raises her hand defiantly as Judge Shaffer swears her in. Would like to ask her what on earth she is wearing. Some sort of shirt that buttons up in the back with large gaps of flesh showing between each button, carrying a blue coat that she has wadded up like a blanket and is clutching like a teddy bear. The grand flourish is a pinned and draped Scottish scarf that almost sweeps the floor – as if she were a bag piper player.

The jury has been waiting to hear her story since the case began. Why did she think something was wrong with Duck 6 and then scratch out her comments so completely that we can only partially read some of the words. My goal is to play her recorded interview with the police officer. But Pat (RTD Seattle) is going to object until reach the point of impeachment. This isn’t hard. Chido fights me over every question. Doesn’t remember if it was her 2nd or 1st tour when she heard a noise while going over the bridge that came from the undercarriage and made the hair stand up on the back of her neck. Patiently let her not remember and not known until a foundation has been laid and Judge Shaffer allows impeachment. The witness sits in the box as we listen to the 30 minute long audio. She is cooperative as can be to the detective without any of the anger and nastiness she’s been doling out in court. She heard the noise. Pulled over. Asked for mechanics to come out. They did. Was told can’t fix it ‘til its broke. She took the vehicle back to the shop at end of day. Wrote out what happened then scribbled it out so that no one could see what she’d written. Decide not to ask further questions.

Five minutes of weak cross later and we are on to the duck crash passenger Jennifer Emery. She is from Michigan and again so sweet. There is a photo taken by media at the scene showing her sitting up against the concrete barrier, feet touching the yellow tarp watching in horror as other often bloodied victims are laid down in front of her. Then Alena Lutz another duck passenger comes in from Switzerland. An au pair travelling with another au pair. She asks to give her answers in English and only use the translator when necessary. Which turns out to be when Scott Wakefield crosses her using legalese. The multiple crosses of both demure, vulnerable and traumatized plaintiffs are supposed to show how much better they are. My eyes are rolling into the back of my head.

Which brings us to the best or worst depending on your perspective liability witness regarding Ride the Ducks Seattle. Joe Hatten the maintenance manager. Pat has been bracing herself for this very moment and it will not disappoint. Hatten walks in. A big guy who takes up a lot of space. Big voice. Big presence. Big aura. He is dressed in a ratty old army t-shirt and baggy pants. He retired several months ago and lives an eight hour drive away in a place so remote that there is no cel service. We had to send out a process server as Pat couldn’t even reach him.

She starts off by objecting to all the exhibits offered for preadmission. This is silly. They are all coming in. The evidence dance is second nature and can do it all day long. It wastes time is all.

His deposition has been taken two times and have no intention of slowing down his interrogation by doing impeachment by deposition. It is wholly unnecessary. Because one year after he took on the job in 2012, he started a work journal to cover his … bases. I’ve book marked the pdf of the journal and take him through it. On the white board write out the timeline of all the requests he made to upper management for more mechanics. Maintenance was understaffed and needed at least two more for years. He begs, threatens and cajoles management asking for those mechanics. Date after date after date is written on the white board. Every time ask him about a date and a meeting and what he wrote he admits it. When reading the entries if paraphrase, he hedges. He has memorized that journal. He knows every condemning word that’s been written. Then we turn to the service bulletins. Why didn’t he perform the critical one at issue. Well, we did in lieu of – he says. What are you talking about. We look at the document. Where does it say in lieu of. It doesn’t. Don’t finish the exam.

We file out of the courtroom. Head down the stairs. Meanwhile the ducks defendants file a motion for reconsideration of the decision not to excuse Juror No. 9.

Day 21

TuesdayOctober31,2018

Denis pulls up in a jazzy Kia at 8:10 a.m. He’s outfitted it with neon blue disco lights that shine from under the seats.

Denis: So how many people you putting in jail today. (To get the full flavor read his part with a Russian accent).

K3: Actually I’m not a criminal lawyer. Am a civil lawyer.

Denis: Oh what’s that.

K3: Well, instead of dealing with people who are charged with a crime, I handle cases where people have been hurt by someone else – usually a corporation that acted wrong.

Denis: Oh like what kind of case you do. Like now.

K3: How long have you been in Seattle.

Denis: One and a half years.

K3: Well three years ago there was a big crash involving a duck and a…

Denis: Oh yes I know. I take another lawyer to court who is on case.

K3: Really.

Denis: He tells me his job is make sure justice fair and something about too much money.

K3: (Silently: Hahahaha). Oh I see.

Denis: So what do you do. Are you for good guys or bad guys.

K3: I represent the people who were injured and killed.

Denis: Well this guy say he is good guy.

K3: Ya. Well no.

Pull up to courthouse. Fourth floor entrance is closed. Walk across street to County Admin Building. Take the tunnel. Run into Kevin the court reporter. There are now only five full time reporters at the downtown courthouse. Used to be 23. Times have changed. Get through security. Walk thru tunnel. Take the stairs.

Am finishing Joe Hatten. He starts talking about NTSB. There are way too many motions in limine and don’t want to violate any of them so ask for a sidebar. Last week the defendants told the judge only one per side would be attending side bars. 8 of them pile in. Judge Shaffer says that there’s no prohibition on the jury knowing the NTSB was involved. And by the way she loves my gray velvet jacket. She asks what the next question will be of Hatten on this subject. Look at her blankly. Oh she’s expecting an answer. Your honor the moment hasn’t seized me yet. She looks a little startled. Surely you have an idea of what your next question is. Nope. Don’t. But pull something out of the air that’ll do.

Go back outside and finish up.

Jack Ryan (RTD International) is in super duper loud aggressive face turning red attack mode. Hatten is a big guy too but doesn’t lose his temper. Today he’s in blue jeans and a gray polo type shirt. He lets Jack pound away and answers the questions without ever buying into the fight. Jack still isn’t familiar with the ways of our jurisdiction and is repetitive as heck. This stops him from being able to flow as well as he could. Pat’s objections are regularly sustained.

When he’s done. Pat gets up and says: well I won’t yell at you. Hatten says: that’s okay I’m married and used to it. The jury and everyone laughs. It’s interesting because his testimony has fully damned the company. And yet he’s still kind of likeable in his direct frankness – even when making no sense.

Pat pulls out the white board with the dozen dates listing his requests for more mechanics. She wordsmiths it with the witness. There’s no way to undo the damage that was done yesterday. She is trying to be soft and personable and sweet and charming. The jury is unmoved.

We break for lunch with Hatten still on the stand. There are a lot of jury questions (understatement). Half an hours worth.

The defense cross of Hatten has been longer than direct. Pat’s cross is really redirect. She doesn’t want Hatten to ever step foot in the court again and is getting whatever else she wants out of him now. It is 2:00 and we are backed up with an expert and several plaintiffs in court waiting to testify. Jesica is on the phone. Rushing here and there figuring out how to make it all work. Two of the plaintiffs flew in from Wisconsin. One from California. Li Liu Edwards a duck passenger from NYC has a flight leaving in the evening. We put her on next. She was a journalist and took a lot of photos at the scene. She doesn’t want to look at them so we show them to the jury while her face is averted. Scott and Pat both decide to cross her. Another

rivetting series of questions that reveal she went on a trip to Mexico with her husband and daughter.

Suddenly there is a tickle in my throat. Don’t hardly ever get tickles in throat. Take a drink from orange water thermos. Doesn’t work. Tickle gets worse. Cough and almost spit up water. Oh no can’t cough. Uh oh still coughing. Stand up and start walking to back of 100 foot long courtroom. Cross is still going on and Li Liu is doing fine. But coughing won’t stop. Jesica comes rushing back. Hands me watermelon flavored cough drop. Seriously she takes care of everything. Put in mouth. Start walking back to front. Cross is still droning on. Take seat. Cough a few more times and the moment passes.

Next up is Steve Syson is our vehicle safety standards expert. Andrew has been waiting for this moment ever since told him the magic words: you can put him on.

It isn’t easy to work with me in this trial. First, am control freak. Second, expect whole team to read my mind always. Third, am a diva. Admit this fully. Andrew’s job has been to prep all the witnesses, advise them of all the motion in limine rulings, manage the deposition designations and jury instructions, triage all motions, review most powerpoints that Lisa and Melanie are creating, assist with every task that flows out of my mouth, keep track of exhibits, and always be fully engaged so that whenever lean over to tell him something never have to repeat it.

Andrew has Syson explain that RTD International violated NHTSA and other federal regulations. Jack isn’t really dialed in. Starts objecting about 15 minutes into the presentation: leading. We are at 4:00. The jury and witness are excused. Judge Shaffer says she agrees with Jack. Doesn’t know why he didn’t object sooner. Jack asks for the testimony to be retroactively stricken. Judge S tells him its his own fault for not objecting sooner and it is staying as is.

Jesica shares an uber. Drops me off before heading back to the office. Nala and I go for a run. We are up on top of Queen Anne hill. Dodge goblins, an entire family of the incredibles, and various other magical creatures as they solicit candy from the merchants and surrounding households. Nala keeps turning around to look at me – expecting a treat for not jumping after the little monsters.

Day 22

ThursdayNovember1,2018

And just like that a month has gone by.

Judge Shaffer starts off the morning by explaining every single reason why she is not excusing Juror No. 9. The jury files in. Steve Syson resumes the stand. Andrew has reconfigured his outline and takes the automotive expert through the paces. Syson clearly and in no uncertain terms explains that RTD International failed to recall, the service bulletin was inadequate, the

manufacture process was not documented, the history of axle housing failures were not properly addressed, the tab fix was not tested nor properly executed. The only continuing sore point is that if the collar fix had been properly performed it would have extended the life of the axle housing and this particular failure/crash would not have occurred.

Jack Snyder takes the first whack. He comes at Syson the same way he came at Hatten and the same way he’s come at everyone. Aggressive in a halting, loud voice with overbearing mannerisms. He’s of the school that believes in power positioning. Be big and loud and thump a lot and you win. He uses the rhythm of his voice to punch you with words. But Syson is a pro. He answers in a well measured straightforward way. Jack thinks he gets him on several issues, but doesn’t. He goes after Syson who used to build his own racecars. Aha says Jack – so you would get used or surplus parts. Syson:Yes. And you wouldn’t test them with magna partical imaging or other microscopic testing. Syson: No. So what you were really doing was field testing your vehicles when you were racing them. And isn’t it true that is what RTD International did. It field tested its vehicles for years and years.

Andrew and I look at each other and smile. Seriously – JackS what were you thinking with that one. Plus he opens the door on several points that will come back to bite.

Jack Guthrie is up next for RTD Seattle. They are thrilled with Syson for blaming RTD International and use him to rip them apart further. Steve Puz follows and finishes the job. Tad for the City asks a question or two. It’s time for redirect. Andrew decides everyone has asked enough questions plus if plaintiffs go again then Jack can have another shot. No questions Andrew says. Take a peek at JackS. He deflates.

We go back into chambers to wait for the jury questions. Puz says to me: I like your shoes. They are black and white wingtip Tod’s platforms. Judge S scans my outfit (Mark Jacobs jacket, slim slacks both black,a black and white striped shirt with lace at the wrists). Pronounces me a fashion icon. Andrew snorts. Tell courtthe defense cross is taking way longer than they told us it would and their redundancy is getting on our nerves (paraphrased). She says we can object by saying asked and answered. Asks them to stop being being so repetitive. The pile of juror questions are sorted through and most as usual will be asked. Follow Judge S back into courtroom.

We are getting moral support today from Melanie, Lisa, Travis and Brad who show up from the office. Lisa writes out the questions asked by the jury of Syson:

• Were the internal axle components also surplus, or just the housing itself?

• Do you know if the axle housings stored in the graveyard were kept under cover or exposed to the elements?

• Because the duck boat is amphibious, are there any anti corrosion measures taken?

• Were there any other manufacturing issues other than the tooling marks?

• Is there any law that would have prevented the installation of seat belts in the ducks?

• Would it have been important for the Service Bulletin to indicate the type of metal from which to make the collar? Please explain.

• There seems to be only one measurement (7/8”) given in the Service Bulletin about the width of the collar. Should other measurements have been given? Please explain.

• If the collar was made from a “soft metal” and welded to the axle, what would the consequences be? Please explain. Could this have been more detrimental than doing nothing? Please explain.

• What are the common ways manufacturers perform durability testing on axle components?

• In your opinion, in terms of on-road safety features, were there seatbelts or airbags on duck 6?

• In your opinion, was the interior of the duck designed to reduce the impact of passengers on internal structures during a collision?

• In your opinion, was the interior of the duck designed to reduce passenger ejection during a collision?

• Ex 73, does the spherical end of the collar look like it was designed to fit against the housing?

• With respect to seat belts, do you think the comparison to a school bus is reasonable? Please explain.

• In your opinion, with respect to seat belts, do you think the burden of instructing occupants to wear seat belts on-road, and take seat belts off in the water, is a compelling reason not to have seat belts?

• Does the description in the Service Bulletin seem appropriate given the likelihood of catastrophic failure?

• Were ducks produced by RTDI more similar to experimental vehicles in terms of their documentation as far as meeting the requirements of the NHTSA? Is there a category for experimental vehicles in the NHTSA?

• Regarding NHTSA recalls on vehicles not sold to the general public, are they treated differently than consumer vehicles? If so how?

• Do axle housings have serial numbers? Would that determine the equipment age?

• Did any of the RTDI axle failures before 2015 involve a tab?

We finish 15 minutes past noon. Am having a bit of a cow. The Sheldons are still waiting to testify. Minje Sa has come from Korea. Carley Ward our human factors expert has been cooling her heels in the hall since 10. The defendants are taking so much time to cross and use our experts that they have thrown the schedule completely off.

Most everyone leaves. But the clerk keeps the courtroom open. Stay and eat a red lentil spinach salad. Calm down sort of.

1:30 Dr. Ward is up on the stand. Qualify her. Defense starts objecting as soon as the illustrative exhibits go up. Beyond the scope... She didn’t say that in discovery... She can’t testify to causation…Leading…blah blah blah. They are such whiners. Puz even

voir dires her and when he’s done the court says – overruled. But your honor –complains Wakefield. Overruled she says.

They want a sidebar so we go back in chambers. They are hopping up and down with fists clenching various bits of paper. Judge S tells them she’s not limiting testimony other than as to medical causation.

Decide to limit scope of testimony anyway. Syson did such a great job that Ward is just an added exclamation point. No need to do anything to cause potential error. Finish up and then ScottW goes at her. Dr. Ward has been doing this for over 40 years and likes the fight. Judge has to separate and put them in their own corners from time to time.

We are able to get Minje on the stand. A then 18 year old student from Korea who was on the bus. He is quite stoic in his testimony but you can read between the lines. Scott needs to change his cross up because the jury could care less what trips Minje has taken. My patience level has decreased. Turn away from the jury so they can’t see me rolling eyes up into head. Next Pat Buchanan goes at him for getting increasingly good grades. Okay that proves what – that he’s smarter because he was in this wreck. But the grand finale of the worst cross of the day award goes to…Vanessa…again.

Actually Vanessa seems like a nice person. Have nothing personal against her. But as she starts trying to impeach Minje for discontinuing his counseling sessions, my body gets tense and irritated. Like bracing for finger nails down a blackboard.

He already told the jury that he went to 2 or 3 counseling sessions but discontinued them early because he didn’t want to talk about what happened. The sessions would make him have to think about it and he didn’t want to. So he told the therapist he was better just so he could stop.

Vanessa starts reading from something. Since she’s already gotten into trouble every single other time she’s tried to impeach by way of a deposition, feel duty bound to object which is quickly sustained. Judge S tells her to do it right and give him the deposition. Vanessa finds the deposition. Offers it. Begins to turn the pages. Drops the entire document. Picks it up. Brings it over to the interpreter. Tells the interpreter to read it. Judge S says – you need to read it so the interpreter can interpret it. Vanessa

reads it. Interpreter says where are you reading from Vanessa tells her sorry she gave her the wrong page.

Meanwhile Andrew has pulled it up. We start reading the question and answer and our eyes meet. What is she doing. The question is the reading of the medical record and his answer is exactly what he just testified to. We are looking further down the page to see if she’s going somewhere else. But Judge S glares and says – stop! What are you doing! She instructs the jury to disregard everything that Vanessa has just done and strikes it from the record.

We go back into chambers to see if the jurors have questions. Judge S is mad. It is 4:05 and we just wasted 5 minutes. She wants the witness to come back Monday. Tell her he is from Korea. We need to finish. Judge S scolds Vanessa who is apologizing every which possible way she can. Judge S then turns to me and says – why didn’t you object – you should have objected – why did you let her waste so much time. Uh…she’s blaming me for not objecting fast enough. Don’t tell her we just wanted to watch Vanessa make a big doo doo mess – because that was only partially true – we weren’t sure what she was doing. Juror questions come in and include: a) were you worried that you would lose face by continuing therapy; and b) did you tell the therapist that so that you would not hurt their feelings. Minje answers yes to both.

Before she excuses the jury, Judge S tells them that this next Tuesday we will be going on a field trip to view the vehicles involved. She has been complaining about this to us as being a big waste of time for these past few weeks. Initially I asked for the duck and bus brought to the courthouse which she was okay with. But they are in pieces and would be up on a truck trailer and difficult to look at. RTD Seattle wanted to do everything possible to avoid having the vehicles brought to 3rd and James. They thought we intended to parade the crashed vehicles through downtown to create a public spectacle. Pinch self for not thinking of this. RTD Seattle will instead bus everyone over to a storage facility that is 15 minutes away. Jesica sends an email that the bus has been loaded and is on its way.

Day 23

November5,2018

Prologue

Sunday afternoon, RTD International files a motion to strike the view of the duck and bus. This after on Friday, the court held a joint conference with counsel and media to ensure that the view could be attended by all.

Fume over this latest dumb brief. Send email:

From: Karen Koehler

Sent: Sunday, November 4, 2018 10:22 PM

To: Michael King; Court, Shaffer

Cc: DefenseDuckServiceRTD; DefenseGovServiceRTD; RTD Legal Counsel; Jack Snyder; Jesica McClure

Subject: RE: Ride the Ducks September 24, 2015 Aurora Bridge Collision [RTDI Motion to strike view]

Dear Mr. Ulmer:

The plaintiffs will tomorrow sometime file a response to the brief of RTDI regarding motion to strike the view based at least on the following:

1. On September 1, 2018, plaintiffs indicated in ER 904s that it intended to present the actual bus and actual duck to the jury.

2. On September 15, 2018, RTDS indicated by email that it could make a site visit work

3. On September 17, 2018, plaintiffs filed a motion for the view of the duck and bus.

4. On September 18, 2018, plaintiffs discussed in the pretrial conference the anticipated view. The questions that arose did not have anything to do with whether the plaintiffs could be entitled to show the duck and bus to the jury – but where that should occur. The court indicated a recent experience involving a helicopter that was brought to the courthouse.

5. On September 21, 2018, plaintiffs renoted the motion to occur on first day of trial since RTDS and Mr. Jackson were working out logistical details and it appeared that agreement would occur.

6. RTDS then leased a warehouse for the view.

7. RTDS then contracted with a charter bus service to arrange for transportation to the site.

8. On October 31, 2018, RTDS sent an email to the Court notifying of the particular details of transportation to and from the site.

9. On November 2, 2018, a group teleconference was held with the Court and media regarding the view.

10. Plaintiffs arranged for transport of the bus from Arlington at a cost of approximately $12,000. The bus was hauled to the location last week in preparation for the view.

All of the above steps occurred without RTDI stating that it would bring a motion to strike the view. No email, phone call, in person comment, or any other notification of this intention was made by RTDI to the plaintiffs until the service of the motion Sunday afternoon 11.4.18 through its “preservation of error counsel” Mike King.

Plaintiffs strongly take issue with the dilatory filing of this brief, with RTDI attempting to dictate how the plaintiffs should put on their own case, and for taking the Court’s comments out of context to support this latest specious motion.

Very truly yours,

Karen

Multiple emails are then exchanged first with everyone then just between Mike King and self. Lisa finishes drafting a response shortly after midnight which we hold. Monday.

7:49am Mike emails me that his paralegal has now filed the motion and gives various excuses for it being filed late – mainly that because the media wanted to go that changed things.

7:54am Mike emails his paralegal, the Ducks Team and mistakenly cc’s me saying: BTW she (k3) did not let up last night, sending me a reply after midnight carping about the adequacy of MY service efforts.

7:59am Email Mike and his Ducks Team: That’s cause I never let up.

8:50 Judge Shaffer takes the bench. Says she is not in favor of Tuesday’s view but had said it was fine since the parties agreed. Now that RTD International wants to stop it she’s considering scrapping it. Asks if RTD International will pay the $12k shipping charges we’ve incurred. Yes they will.

Oh crap.

Email update to Lisa and Andrew. Need to revise brief. Add a little bit of this and a little bit of that. Judge is rethinking. We need to show what we hope to accomplish in the view. Show the prejudice in telling the jury we are going on a view and then that we are not. Plus he did this because of the media wanting to attend.

First two witnesses are Kathy and Ron Sheldon from Wisconsin. Duck tourists in their 70s who came to sightsee in Seattle with Ron’s brother and spouse. One of the most important lessons have learned yet again during this trial – is how little the jury needs to hear in terms of details, in order to form and feed their impressions. Kathy’s entire testimony lasts 15 minutes but is so impactful have a hard time breathing through it. The raw emotion that she unleashes as she describes landing several rows forward in the duck culminates in an almost primordial wail when

she can’t find her husband of 56 years. It is just pure anguish. There’s no point in talking to her more, in causing her further pain. All that needed to be done was for the jury to meet her and get to that moment. And she did it. Scott Wakefield crosses her: oh look here’s a photo three months later of her smiling at a bridal shower with an arts and crafts theme.

Ron is more stoic but still so sweet. He testifies matter of factly until he reaches the part where he can’t find his wife. Doesn’t see her. Chokes up. We all wait while he gathers himself. And continues. This time Scott’s cross involves going hunting for bears and all kinds of other living things in Wisconsin. The defense still hasn’t figured out how to cross these folks on their preexisting medical conditions because we aren’t calling treating providers on the nonsurgical cases. They start out asking some of those questions then realize they aren’t scoring points.

Next up is Dr. Olson. This is the second time he will testify and it is the defendants’ chance now to cross. Tyler (RTD International) and JackG (RTD Seattle) go at it with a little addition from Tad (City). It is long and tedious. But they score some points – he designed his process with an interview test that he hadn’t used before, his bills are huge and we told him not to do collateral interviews (which would have made his bills even huger).

We break for lunch. Am only person in courtroom. Eat a pita and grapes. As we near start time a woman wearing an orange patterned coat with a purple headscart tied elegantly around her braids approaches.

W: Are you Mary’s daughter.

K3: Yes. Smile. She was my mom.

W; Was…

K3: She died two and a half years ago.

W: Oh am so sorry. She was a wonderful woman – always so kind to me.

K3: What’s your name.

W: Well people call me Queenie. Am here for a City Council meeting but there is a long break and came to watch the trial for a bit.

K3: Thank you for coming to see me.

Judge enters. Declares that after reviewing plaintiffs’ brief she is convinced that a view is appropriate. Yay Lisa, Andrew, Jesica and Team!

Dr. Olson resumes stand. Goes through three more of the plaintiffs who have PTSD. About 30 minutes per plaintiff. We are moving way faster now. But while his testimony is being laid down, there is a little chipmunk on my shoulder who is worrying back and forth, looking here

and there, and starting to sweat. Dr. O saw 43 of the plaintiffs. He will need to come back for six more days at this rate. Much of what he says is interesting and relevant, but at the price of being a data spewing exercise. Was just talking about how fast the plaintiffs can get on and off the stand and here we are doing the opposite. The jury is not taking notes. The questions are slowing down. By the end of the day the little chipmunk is lying prone on my shoulder. With arms covering eyes. This is not going to work.

Walk downstairs. Call for uber. It’s here. No it isn’t here. Where is it. 3rd Avenue is now closed to non-buses. So it is on 4th. By the time rush to where the map says uber is which is now on lower corner of 3rd… Well there it goes. Cancels me. Call for another uber. Repeat exercise. Run back up to 4th. This time find uber.

Sit in car for three seconds. Dial Andrew. No answer. Dial Jesica. Answers. We need to change up Dr. O. How she says. Don’t know. Will figure it out. Don’t worry. Hang up. Talk it thru inside head. Get home. Daylight savings November darkness has descended. Open door, Let Nala jump all over me.

Trial day 24

Tuesday November 6, 2018

Drive up to the warehouse. Every single tv station and the times are already there. This is what happens when you try to exclude the media but lose.

We are greeted by the man with the ESI vest on. Hi Karen he calls and waves us into the best parking spot. ESI used to be MDL. We’ve stored all our crashed vehicles there for years. The gentleman and I bonded several years ago. A vehicle had been terribly crushed with two parents instantly dying and most of their adult children severely injured. It had been towed from Eastern Washington where it was sitting frozen covered in snow in a lot. The snow still hadn’t melted. We were trying to retrieve family belongings at the survivors’ requests. We founds things but they were ruined. We laid them out in a pile on a tarp. Purses. Phones. Board games for a vacation that would never occur. Going through that vehicle was not only sad but we should have been wearing hazmat.

The defense lawyers arrive in a tour bus/van followed by the jurors. Judge Shaffer and Bailiff Ulmer usher them in. We follow. No one is allowed to speak. The attorneys can gesture but we don’t. Andrew and I stand back with the media who cannot film the jurors. RTDI has hired a videographer who is walking around aiming his lense at us since he can’t filme the jurors either.

The jurors stand in front of the bus. Fixated. Staring at the massive wound covering its left side. They’ve heard stories of what happened in that bus. It is a tomb.

Some of the jurors are down on their knees. Looking up into the metal shards. The flashlights on their phones flicker. Bailiff Ulmer invites them to go to the duck. Its prow juts out arrogantly as if saying – see what I did. They are looking up and under.

Time to go announces the bailiff. The jurors file back into their bus with the court staff. Tell Andrew will go with all the defense lawyers. We are travelling down SR 99 approaching the viaduct when a bus merges onto the highway from the right. It is rushing at highway speed and swings a little too close. Vanessa is sitting by the window. You can hear her gasp. This makes travelling on the defense lawyers’ bus worth it. Make it back to the courthouse. Walk upstairs. Wait for break to be over.

11:00 Ask judge if RTD International will be required to provide us with a copy of the video it took. Yes she says. Scott is talking to his paralegal and she makes wild eyes. Scott says – did you say we need to provide the video. Yes says Judge Shaffer. Give an inner smirk because they gave the videographer directions to creep on plaintiffs and the media and they know it is going to look dumb.

JackS says that RTD International observed Juror No. 2 taking measurements. Judge calls in Juror No. 2. Yes he says he took two. Did not write them down. Did it in order to form questions in the future. Is told to forget whatever he did. He agrees. Rest of the jury comes in. One of them has become ill. He was coughing yesterday. But today despite eating a pack of cough drops and with two boxes of kleenex guarding his chair, he is disintegrating.

11:05 Call JoAnne Gerke from Wisconsin. She is the wife of Rhonda Cooley – the number one target of all of the defendants. Made the tactical decision to put them directly after the view. You want to pick on them. Pick on them after everyone just saw what you caused.

JoAnne does a great job. She is a stoic. But she is emotional. Her testimony squeezes my heart when she says her number one fear is that she will lose her spouse. Because this wreck has torn them apart. As expected Scott and Jack cross her fairly extensively. Jack is obsessed with the decision to sell their house in Madison and move to a rural community with many Amish people. At one point, call out: objection to the Amish reference. Sustained.

While we are back reading jury questions, ask Judge Shaffer to instruct defendants to tell me if they will be using the surveillance video before Rhonda’s testimony. If they are intending to use it then will do so first in direct. Judge Shaffer agrees.

During lunch, Pat, Jack and I are working in the courtroom. Ask them if they are going to use the surveillance video. Pat says she doesn’t know yet. Tell her judge says you have to tell me. She says – well if she lies then will use it.

Lunch is over. Judge S takes the bench. Tattle on them: your honor, RTD Seattle won’t tell me if they will be using the surveillance video or not. So I will be using it during direct. Pat says:

we have not decided. I interrupt: that’s not what she said she said if Ms. Cooley lies she’ll use it. Judge says: if after direct RTDS intends to use the surveillance video they will advise and you can then address it before cross. Good.

After lunch Rhonda Cooley takes the stand. She does a wonderful job and lets the jury see her feelings of failure and depression. Then the most rigorous cross of all of the plaintiffs to date occurs just as expected. The jury has no idea why.

Scott goes first. Forgets to take down the giant body diagram that have up on the double easel showing her 4 rib fx on the right; 8 rib fx on the left; and eventual total hip replacement. His mission is to attack her statements that she no longer could work at fedex. He is benign compared to Pat. Who ends up staying as far away from the surveillance as she possibly can. Because we would have socked her between the eyes with it.

Jack gets her set up – takes down the easels, moves the podium in front so that the witness will be looking away from the jury. His solicitousness strikes an odd cord. Seriously that hideous podium only needed to be moved a foot and was on wheels. She could have done it herself. She lays out a notebook with tabbed and highlighted materials. Expert reports. Her cross goes for almost half an hour. Start objecting just for the heck of it. Judge Shaffer tells her to move along and stop repeating everything. At the end of all of that, we go back to chambers to hear the jury questions. Pat’s hopes that she really scored points are pretty much dashed:

• Were you assessed psychologically after the accident

• Was fedex a union job – if so would the union be able to help you

• Did your workplace provide a consistent source of feedback and affirmation for you

• Does the loss of your workplace affect your sense of purpose

• Are there any other things you have experienced due to loss of your workplace affirmation other than sense of purpose

• When you are driving do you feel tense and hypervigilant

• Is the scar on the left side of your face from the accident

We still have two more trailing plaintiffs, and are able to fit on Terri Sheldon. As you will recall her brother and sister in law testified last week. Her description of what happened to her group in the crash is more detailed than should be possible. It is also miraculous.

When the vehicle first swerves she is thrown to the ground in the aisle and her sister in law who is petite and also about 20 years older is on top of her. Terri grabs her by the shirt thinking she needs to hold onto her. The vehicle swerves to the left and there is a bounce and her body leaves the floor of the bus and is in the air along with Kathy. She is still holding onto Kathy’s shirt and there is a terrific jerk. She loses her grip. Kathy flies forward in the bus and at the same time Terri flies out the window. As she is going out the window she sees that the sky is blue. It is so

beautiful. Then she sees the pavement. She somehow tucks her head into her shoulder and hits the ground with the opposite shoulder. As she hits the ground the impact bounces her back up and she lands on her feet and takes off running. Trying to find her family

This is no joke.

She testifies beautifully. Scott and JackG half heartedly pick at her. And we end.

https://komonews.com/news/local/jurors-inspect-the-damage-in-the-ride-the-ducks-civil-trial

https://www.seattletimes.com/seattle-news/jurors-in-ride-the-ducks-trial-leave-courthouse-toview-vehicles-damaged-in-deadly-crash/

Day 25

WednesdayNovember7,2018

Enter the courtroom and notice a new group of defense attorneys. Identifying features include dark blue suits, glasses, and the self important frowns on their faces. Remember one of them. He showed up during depositions in Branson this past July. A real supercilious pill. They are encircling this morning’s witness. Sashay past without saying hi.

JackS starts off predictably by asking the Court to reconsider not excusing Juror No. 2 for using a tape measure yesterday. Denied.

First witness is Richard Sheldon - husband of Terri. Former airforce and retired sheriff after a long career. Co-counsel Patrick Kang has been caring for this family since they arrived last week. He has entrusted direct to me – even though he knows these folks much better and could do a fine direct on his own. Our team of lawyers has put aside the personal desire to do direct of the respective clients in order to help the jury bond more with lead counsel. Keeping 40 plaintiffs together in a case like this is a testament to the co-counsel who are working behind the scenes as well of course to the team from our law firm.

Have been to many seminars touting the importance of spending time with plaintiffs, going to their homes, and developing an intimate connection over years. Have done that many times. But here it is the co-counsel who have developed these relationships. My job is to be the vessel for the plaintiffs to speak to the jury.

Richard just like all of the plaintiffs in this case, exceeds all expectations. And this is simply because they trust the court. They trust the judge to protect them. They trust the jury to care for and hear them. They trust me to guide them. And they trust that because they are on the side of the righteous, the defense will not be able to harm them. These plaintiffs are empowered also by each other.

Watching a stoic man allow himself to reveal his inside anguish and vulnerability, is a precious gift to a jury that is looking to do justic. He is moving and magnificent. These are some of the questions that moved him through his testimony.

• I’d like you to relive for us, if you wouldn’t mind, what happened once you got onto that bridge.

• Mr. Sheldon, you had been in service to our country, in the military and in the sheriff’s department for decades. Had any of the trauma that you suffered as an officer compared to what you suffered on this day.

• Why was it so different for you. (he talks about not being able to render assistance and hearing the cries for help).

• Mr. Sheldon to this day do you still hear voices.

Next up is Frank English – he of the gaggle of additional defense lawyers from Branson. Head of fleet operations and safety for RTD International. Spend all morning with him. He starts off fighting the ever so sweet version of me. Without any request, Judge Shaffer tells him to answer the question and this will be an ongoing direction.

There are three favorite parts of this examination. First, is the whiteboard which replaces the giant injury board of Mr. Sheldon. Judge Shaffer is a jury proponent and everything that is set up in the court she wants the jury to be able to see. The perfect spot for the boards is right in the middle of the stage part of the floor at the end of the table that we share with Tad Seder (City) but which is still divided by our lego wall. Get a tickle about cutting all of the defense attorneys off from the jury. They either choose to stay put and remain hidden behind the board. Or they have to come over to our side and sit on the wooden benches. There is almost never a moment when a board is not up during plaintiff’s case in chief. Ask Mr. English to write down all of the safety inspections RTD Internation went through. He balks. Judge S tells him to get down there. In bad handwriting he lists a shockingly small number since they only followed coast guard rules.

Second, my temporary fake best friends counsel for RTD Seattle (JackG) have arranged for today’s main prop. The complete axle housing from stretch duck number 8 which is currently out of commission. This exhibit is on a fabric covered dolly. Andrew pushes it onto the stage which is a chore because it is heavy and only inches off the floor. He shows me his blackened hands and warns me not to brush up against it. Ask for the jury to be able to view it and they come marching down. Several of them are down on their knees looking into it.

JackG hands me over a little tab piece. RTD Seattle has created an exemplar. Cool. Judge allows that to be passed along too. And finally an exemplar collar RTD International was asked to bring is handed over. Each time the jury passes these things through the box we wait quietly.

Then the fun part. Frank English is dressed to the T in a fine blue suit. Ask him to inspect the welds on the tabs on the axlehousing which as you will recall is fairly close to the floor. He doesn’t want to. Judge directs him to. He bends over. Kneels slightly. Gingerly gets up and returns to his chair. Ask him how those look. He says and this is a quote: “the weld itself doesn’t look horribly bad.” A guffaw slips out from one of the jurors. It is in fact a slop crap job of a weld.

Ask him if the tab would hide fractures of the axle housing. No he says. Ask him to get down there and tell us if he can see fractures. Again, he doesn’t want to but does. Is barely down there for a second and says it looks good but he can’t really tell because would need a flashlight. Andrew pulls out his phone, turns on the flashlight and gives to me. Hand to the witness and ask him to get back down there. He doesn’t want to. Judge Shaffer tells him to move it.

Oh the objections are flying fast and furious with this witness and Judge Shaffer is on top of every one of them.

My favorite part comes after lunch. Andrew Jesica and I agree, the jury would like to see me rip into this witness. So oblige them. In July 2013 a wheel had come off Duck 14 in Branson while coming down Baird Mountain with a full load of tourists. This is a prior similar incident. RTD International and this witness, provided the ntsb with a document stating only that the driver of Duck 14 noticed a fracture of the axle housing and that there was no accident. Now English is testifying that the driver observed an abnormality. It all sounds quite benign as if the driver just noticed it during pretrip.

K3: Do you remember telling us that the wheel did not come off the duck.

FE: Yes. That’s what I recollect.

K3: But that’s a false statement, isn’t it, the wheel did come off the duck

JackS: Objection

Judge S: Overruled. Did the wheel come off the duck

FE: The duck was still tied to the tie rod.

K3: Not my question. Didn’t the wheel come off this duck.

FE: I’m telling the truth, the axle tie rod had to be cut in order for the wheel to come off the duck. The duck was not completely separated from the duck. The axle housing was fractured but it was still connected .

K3: I’d like to show the next exhibit (email) – admitted and projected.

K3: In your email of July 27, 2013 did you say to Mr. Lanham: “the wheel came off”

FE: It appears I did, yes.

K3: Did you attempt to mislead us in this case about whether the wheel came off or not in July of 2013.

JackS: Objection.

JudgeS: Overruled

FE: Absolutely not.

This goes on a bit longer but oh oh oh. Am in heaven. It is such a relief to be able attack this witness with claws fully extended. Can feel the jury cheering me on.

Jack S is not thinking clearly. He sets up at the podium which has been pushed way over to the far end of the courtroom. English’s back is almost turned to the jury. He does a bit of cross which is really redirect. Then announces he is calling the witness in direct for RTD International’s case in chief. This has been preapproved. His main focus is blaming RTD Seattle for being such a sloth of a company. Pat Buchanan is up next. She is in the middle of cross when we break for the day.

Day 26

November8,2018

The Spinners are singing Sadie as enter the uber. The driver has dreadlocks and was born two decades after this song was recorded. Sit there enjoying the sweet sounds. His father was in the military. Later became a dj. Passed on the love of music to his son. He is practicing how to mix at home with the help of his dad. Works at Costco in Redmond. Drives on the side. Drops me off at the KC Admin building. Walk down the stairs toward the tunnel. Run into Mark Larson law school classmate who has long been chief of the criminal division of KC Prosecutor’s office. We talk through the tunnel. Part ways. Walk up the stairs.

Am pleased with today’s feisty outfit. Black jacket over trina turk black and white splotch patterned silk chemise over tube knitted graphic black and white triangled bcbg skirt. Black stretch over the knee boots.

Frank English resumes the stand. Pat Buchanan continues his annihilation. She does this methodically and elegantly. JackS objects over and over and gets nowhere. Then it is the jury’s turn.

Have tried cases since the first year the courts in our state allowed jurors to submit questions. But from then until now have never seen a jury like this. They sit forward. Eyes focused on the

action. Hands busy taking notes. There is no restlessness. No heavy lidded eyes. Takes us about 20 minutes to get through all the questions in chambers. When we return the judge asks most of them. I type them out while she’s speaking.

• You said Service Bulletin Ex. 73 was discussed on biweekly calls before it was issued what does that mean.

• Do you know why truck ducks used a different axle housing than stretch ducks. Please explain why.

• How many times did tabs have to be removed from axle housings before installing collars.

• You testified the collar fix was tested. Please explain how it was tested. You responded to what was done after.

• Given your background in welding and fabrication do you think it is good to use 50 year old surplus parts to manufacture new vehicles.

• How was the fit of the collar fix – did all surfaces touch all surfaces of the axle housing.

• Did you have access to the original military documents pertaining to the duck vehicle.

• On Duck Central could RTDSeattle find anything about the Branson duck 14 failure.

• Was the Branson duck 14 failure discussed during the biweekly conference call.

• Was the severity of the duck 14 knuckle ball housing discussed clearly in biweekly calls and posted to duck central.

• Do you think this was enough given this catastrophic failure.

• Are you aware of any road tests.

• Did any of these tests assess the durability of the stretch duck.

• Please describe them to the best of your ability.

• Does 100 miles of on road use seem sufficient.

• From the perspective of a vehicle manufacturer to operate on public roads what would you expect in terms of passenger safety.

• Re Ex. 202 who was responsible for safety of any kind.

• Who in 202 was responsible for end user passenger safety.

• Re Ex. 74 (tab) you mentioned fill in tabs was made of similar material – similar to each other or similar to the housing.

• If you meant all similar to each other how did they differ.

• Was the bevel on the tabs edges were ground manually or machined.

• Would there be variations in fit between one to the next depending on the uniformity of machining.

• Did you take a machine shop class when you attended trade school.

• Re Ex. 73. The bevelled edge that is to touche the outer edge of the knuckle ball looks like was performed by a lathe. Who performed that.

• Did whoever did that use a manually operated lathe.

• As a welder how did you guarantee full penetration of the collar.

• When you mentioned visible welds on Ex 733 was that limited to axle or more general.

• Ex 73 is there anything that explicitly calls attention to maintainers that the failure could lead to loss of control of vehicle and loss of steering and breaking.

• Ex. 173. How would a reader know that the topic has a potential to cause catastrophic failure.

• Ex. 10222.121 how you communicated the relative importance of service bulletins. This was for a rear stairway sign. Can you show how Ex. 73 emphasizes the importance of the SB relative to this prior ones involving the stairway handle release.

• When you flew from San Fran to Seattle why did you bring a copy of SB 73.

• Ex. 172. Recommendation to inspect for fatigue cracks during the 250 hr seems safety inspection – why do you present it as a maintenance inspection rather than one of safety.

• Is there a safety implication to the failure that such an inspection was intended to prevent.

• What steps did you take to verify that the collar fix had been applied to RTDS stretch ducks.

• Why in the document requested by NTSB Ex. 169. Why are there no photos of the collar fix.

• You mentioned every collar enhancement had been tested. What specific tests were done to prove the collar fix mitigated the fatigue failures to a reasonable level.

• Did your company look at having axles manufactured for the ducks.

• Did you ever tell anyone at RTDS that a wheel had fallen off a duck.

• Why did the SB not warn of catastrophic failure.

• Why didn’t RTDI provide the parts for the collar fix.

• Why didn’t RTDI provide complete measurements for the collar including diamater and degrees

• Why was the type of metal not included in the SB.

• Did you or anyone from RTDI attempt to inspect the SD in Sea re the collar fix.

• Did you ever tell Ryan Johnson there could be a catrophic failure or the wheel could fall off

• Were you concerned RTDS was competent to complete the welding job.

• Were there any discussions you were involved in that discussed the possibility of a recall prior to the accident please explain.

• Were you responsible for all the maintenance information for all the SB on duck central.

• What kind of a metal was used to make the collar in Branson – you said steel can you be more specific.

• What is 1035 steel.

• Did RTDI ever discuss or has there ever been any mention to not disclose to a licensee or franchisee that a wheel fell off a duck.

• Were you afraid to tell your licensee franchisee about the axle fracture

• If you weren’t afraid, why didn’t you tell the licensees and franchisees so they would understand then the serious nature of the SB

• Why didn’t RTDI hire a welder or welders to perform the collar fix so RTDI could guarantee the parts provide and quality of the weld.

• Did you know about magna flux testing before the duck 6 accident.

• How about microscopic testing.

• Please explain both of those answers.

• How well does the tab need to fit to be effective.

• In Ex. 10219 collar rings had an angle and a straight split but Ex. 73 appears to show two straight split why do they differ.

• Did you track SB completion for RTDS

• Did you believe Ryan was taking care of the SB – this would have taken awhile – did you ever consider talking with Ryan to followup.

About half way through you can see the light go out of Frank English’s eyes. The jury has not been duped. He hasn’t been able to charm them. Or throw them off track. His answers which started out being hopefully energetic become monosylabic. Andrew whispers to me: he’s given up.

The jury files out. Judge Shaffer is getting up to leave. Scott says – your honor we have juror misconduct to report. She sits back down. He continues: when we were back in chambers looking at jury questions, three of the jurors (the engineers) were looking at one of their notebooks and talking and one of them pulled out their phone and did a search.

My stomach goes: What! And hits the floor.

Judge Shaffer says: who saw that. Tyler Hermsen (one of RTD International’s lawyers) self righteously raises his hand. Judge Shaffer says: well you need to go talk to Mr. Ulmer during the break.

We break.

Scott then sends this email :

Mr. Ulmer -- Jurors 2, 3, and 7 were standing and chatting during the attorney sidebar concerning Juror Questions about Frank English’s testimony. Juror 7 had his notebook open. All three were talking, looking and pointing at the notebook. Juror 3 pulled out his cell phone, typed something in and it appeared that Jurors 2 and 7 were looking at the cellphone. Juror 7 still had the notebook open. They continued chatting and looking at the notebook. Juror 7 then put the notebook down. Juror 3 made a series of hand gestures that mimicked the shape of the collar. They continued to chat for about 3 minutes until you came over and told them to take a seat.

Walk downstairs to snack room on first floor. Step . Maybe they were talking about lunch. Step. Oh no. Step. Our poor clients could have to come back and tell their stories all over again. Step. That would be so hard on them. Step. We would do even better the second trial. Step. They are so smart they couldn’t be talking about the case. Get hummus pretzel cup. Walk back up stairs. Step. There has to be a good explanation. Step. RTD International wants this case mistrialed. Step. They are desperate. Step. This can’t be happening. Step. It’s going to be fine.

Enter courtroom. Sit down. Eat hummus cup. Put juror issue out of mind. Prep for the next witness.

Judge Shaffer comes in 10 minutes early. Mouth set. Expression unreadable. Not sure if this is bad or good. Was hoping for a flicker of some sort of positivity. She waits for Kevin the court reporter to set up. Asks Mr. Ulmer to bring in each of the three jurors. Mr. Ulmer walks towards the back. He is smiling. Almost angelicly. Certainly peacefully. My stomach settles. One by one they are brought in. Enter the box alone. Sit in their chair. Judge Shaffer does her best to put them at ease. Gives them a friendly smile. They answer her questions. Yes they were standing and chatting. No they weren’t talking about the case. No they weren’t looking at a cel phone or a notebook. They were talking about airplane wing rivets involved in the job of juror 7. One was verifying there was only one day in trial next week. The last juror heads back outside.

Calmly look over at the RTD International table. They are still as boulders.

Judge says this is the third time the same party (RTD International) has claimed juror misconduct where none exists (other than the juror shouldn’t have taken measurements but that was a misunderstanding). And that if this continues she will start to think they are crying wolf.

The jury enters. We stand. They sit. We sit.

Next plaintiff is Zu Yuang a student from China. He points on the large diagram to where he was seated on the bus – the very front seat across from the driver. Turn his monitor away so he can’t see it. Show the jury three still photos from the bus camera pointing inside the bus just before it was struck. He can be seen clearly. A kid who has no idea what is about to come.

Ask him to share with us what happened. His face shatters. He cannot speak. His head is in his hands. Shoulders shaking. Judge Shaffer offers for him to come back later. He wants to resume. It hurts to watch him. But we can tell he wants to speak. So stand there quietly with him. Waiting until he’s ready.

Lawyers like words. We can be uncomfortable with silence. Our default is to fill the space. But with these plaintiffs, the silence has a purpose. It allows them to breathe. To gain strength. To form thoughts. And then perhaps words. The silence brings us closer to him. The jury is willing him to get through this moment.

When the bus stopped moving he thought he was dead.

Now he is scared to sleep because of the bad dreams. He fears everything. His direct is as brief as Kathy Sheldon’s. Under 15 minutes. And yet his humanity is seared into our brains.

Scott crosses him because he has been ordered to. Takes him through all of his injuries – none of which we got to in direct. He went to the hospital. He was discharged with a boot. Vaguely wonder why Scott is proving a damages case. Jack follows. Places his notebook on the podium. He is embarassed to say anything but manages to choke out: are you going to graduate next year…are you going to graduate school after that.

Brian Deckard has come from Branson. Is Manager of Fleet Operations. Told court his direct would take an hour or so. But with Frank English doing such a spectacular face plant, chop the exam way to 15 minutes. By the time everyone else including the jury is done, barely an hour has passed. We put on a short video of another Branson employee. 4:05 the jury leaves. Listen as Andrew argues jury instructions. 4:30 the day is done.

Walk down the stairs with Andrew. Marvel over the drama of the day. Say goodbye. Walk two blocks north. Meet Michael. Go to the ABOTA dinner at the Rainier Club.

Day 27

TuesdayNovember13,2018

Hey Karen, warns Travis Jameson, a loyal member of the law firm. You may already know this but the defense bar has gotten ahold of your trial diaries. Someone on your private list is sharing them.

Oh No! Exclaim to self. Heart racing and panic setting in. Now they will know exactly how I feel and all of my strategy. Everything is ruined. Oh this is such a fiasco. What Shall I do. Hand over forehead in partial swoon.

Actually, finish chewing lemon luna bar. Reflect on the state of new boots peeking out from the cropped hem of tan banana republic trousers. Pointy toed made of a stretch fabric. Kitten heels taper down to a point the diameter of a pencil. Silk black top with tan stars and a neckline that starts off as a v but ties at the throat. Black jacket of course.

So the defense bar knows. Probably since day one. Have been doing diaries for close to 20 years. Infiltration by a defense lawyer is a bit of a yawn. Especially in a case like this that is

heavily covered by the media with daily transcripts pouring in from Kevin and Joanne our court reporters. I mean earth to defense lawyers. In the event you didn’t know before secretly reading this diary - your case is holy awful.

Lietenant John Fisk walks in. Tall with an erect bearing in full dress uniform. He should have been earlier but had a conflict. Medic. Head of medical operations unit during the MCI (mass casualty incident). Take him through the protocol of that day. He explains how he interfaced with the disaster communications system within Harborview to find placements for the injured. Even though most of the SFD photos have been shown, the jury hasn’t seen the helicopter video from KomoNews4. Jack’s objection of ER 403 cumulative imagery is overruled. The jury leans forward, craning to see the television play the 2 minute clip. He is done and off in 25 minutes. Out of the corner of my eye see Lem Howell come to pay a visit.

Fenna Zielinski is from Amsterdam. She walks slowly to the stand. Arm braced on a blue crutch. Carrying a foam pad which she places on the seat. Settles herself. Speaks mainly in English with a translator sitting next to her as backup. There is a sense of sweetness even purity about Fenna. Her words are simple and chosen with care. She does not embelish. Is comfortable talking about her broken ribs, spine fracture, and hip fractures. But not her feelings. There are no tears until the very end. Press her just a little bit so she can show us her sadness. She reaches out with a single finger to delicately wipe away the barely discernible tears. As if hoping we didn’t notice..

For the first time in the two weeks since the defendants were likely ordered to start crossing all the plaintiffs, they don’t dare. Wakefield: no questions. Guthrie: no questions. Puz and Seder: nothing. Wise move on their parts.

Gunter is Fenna’s husband of 40 years. Stayed by his wife’s side during her extraction, convincing the firefighters that he needed to remain to help translate. Photo after photo shows Gunter in his beige coat standing inside the duck waiting for Fenna to be carved out. Scott and JackG the ducks defendants decide to cross. Gunter is 71. His main concern is for the health of his wife but he was injured too. Best question of the day is from JackG: Mr. Zielinski do you remember the date when you stopped being able to remember. Worst question of the day is from Scott who tries to undo the damage of jury questions and recross regarding who will care for Fenna if Gunter becomes unable. Scott says: well won’t your kids step in and take care of her. When Gunter explains how far away the kids live and that they have their own families and commitments, Scott tries to argue with him: surely they would care for their mother. A grand defense.

After lunch it’s time for Ed Stevens, highway expert. Has worked in the field for 53 years. Has testified for me in trial several times before but never quite like today. There is a backstory here. He was not the expert our group initially hired. He was retained by a different plaintiffs’ group most of whom settled before our trial. The two remaining lawyers shared him with me and in

turn we shared with them some of our other experts. We bring a motion in limine to keep all of this out.

My first involvement with Mr. Stevens on this case was in the summer when defended his deposition. Lask week Andrew advised him of the motions in limine and went over his tesitmony to create a PPT. But today is the first time I’ve seen him since the deposition. It is noon hour and decide to add some additional documents to the PPT that he agrees to. He and Andrew go off to lunch. Finish PPT barely by 1:30. He takes the stand and absolutely crushes his testimony. Inside am jumping up and down clapping hands. On the outside am dealing with defendants’ objections that my questions are leading. Rephrase them.

Steve Puz’s turn. He is loud and overly animated. The majority of Puz’s cross involves forcing Mr. Stevens to stand in front of our whiteboard. Puz is asking Stevens questions while the two are standing up. It seems to me that Puz is trying to physically intimidate Stevens. Am not worried. The court says instructs Mr. Stevens to speak into the microphone. Puz is talking in his booming amplified voice. Stevens talks and it is too quiet. The court begins to scold him again for not using the microphone. No less than three of the jurors call out: his battery is out. Court takes afternoon recess.

Puz has Stevens assume the same position. Instructs him to use the calculator on the podium. Write out 84,000 average daily travel x 365 days/year x 5 years = 150 million cars travelling the bridge during the time period examined. Where Stevens found only 9 crashes that met warrant. Steve is practically howling with glee at how ludicrous this all is.

Tad Seder’s turn. He is less focused and throws out a bunch of red herrings. On the other side of the whiteboard he writes out a diagram that Mr. Stevens cannot decipher.

Redirect. Turn the whiteboard around and take that 150 million figure that Puz is attempting to mock us with and shove it back as hard as can. Does that mean that 150 million people have been exposed to this dangerous roadway, this risk of harm over the past 5 years.

End with 20 minutes to spare. Begin to show another video deposition of a RTD International employee. He is in a bright orange t-shirt. Andrew leans forward and says – looks like prison garb. Suppress a giggle because it really does.

Postscript: Judge Shaffer is off to a judicial conference so no trial until next Monday.

Day 28

MondayNovember19,2018

Am watching the map app. The uber driver should have been here in 4 minutes but he’s driving away from the house. 10 minutes later shows up half a block down the street. Walk quickly so he won’t take off. Open door. Sit down. He immediately asks me how to get to the courthouse. Direct him. Block by block.

Arrive. Go through security. Bangle sets off the detector. Wand applied. Walk up the stairs. Read email on phone. State is notifying us that Mark Leth the first witness woke up ill and is vomitting. Just super. Enter courtroom and say hi. Set up. Andrew walks in as the clock strikes 9. He was going to do that witness but is not irritated. Plan changes.

First up is now Isaac Hoffman, shop supervisor RTD Seattle. Figured direct would be 30 min. But since we lost a witness need to stretch it out. Manage a full 2 hours. Judge keeps sustaining objections re leading questions. Say: he’s a hostile witness. But since he’s politely answering my questions on direct Judge Shaffer says he’s not. Have him lay out the service history of Duck 6 and confirm the laissez – faire atmosphere of the duck nest. Not the most thrilling testimony, but we are building this case brick by brick.

The whiteboard is up again blocking out most of the defense. Use it to create a timeline. Flip it over so he can draw a diagram. Reach down while he’s standing there to pull out the axle housing of duck 8 which is still under our table. Am wearing an absolutely polar white fringe jacket with a white ruffled t shirt and black/white pants tucked into chunky high heel Tory Burch Boots. Give not a single thought to condition of axle housing. Yank on it. Palm is slimed by grease. Miraculously do not soil anything else. Retrieve handiwipe pouch from purse. Rip open and remove cloth. Wipe off residue. Jury’s watching all this obviously in awe.

Jack S delivers his signature cross. The best way to describe it is that he sounds a bit like President Trump. His voice and inflection are similar. Designed to demonstrate power. He is aggressive and his face turns a bit red. If only he could figure out what exhibits he is using.

We break for lunch. Get in huddle with Andrew Jesica so can share metaphor of the day: on direct we toss out a pile of poo and then the duck defendants fling it back and forth at each other until they are completely covered with the mess. They smile

Pat Buchanan is next. Has been objecting all morning long. Is allowed to lead her own witness because technically this is cross. Problem is that just because she can doesn’t mean she should. He’s just saying yes to all of her testimony. Like a puppet. She takes the whiteboard timeline and tries to make a few points that she does with a red pen as if to say – hey this isn’t as awful as it looks. Not a great technique because there are only 3 counterpoints and yet she just featured my big data covered board again. Another awkward technique involves repeatedly sayin: in direct Ms. Koehler asked you about blah blah. Don’t get that. Why do you want to keep reminding the jury of what the other side is doing.

Am daydreaming a bit and look up to see that Pat is displaying photos of the ducks in the 2014 Seahawks superbowl parade through downtown. As if she’s going to score points by patronizing fans on the jury. As if not. Pull out phone. Take photos of the exhibits as they appear on our monitor. Add them to PPT.

Steve Puz goes next. Does a nice grab him by the throat and shake him hard cross. Hoffman doesn’t even try to resist. Steve is apparently more comfortable with the way the case is going now that RTD International was so well wrecked over these past two weeks. He can now skewer RTD Seattle to his heart’s content.

Court circles back to me. Pull up PPT with the Seahawks photos. Wow that must have been awesome to be in the parade. Was that the highpoint of RTD Seattle. Yes yes says Mr. Hoffman. And then a year and a half later this crash happened. Bet that was the low point for RTD Seattle. Yes he says.

Jae Young Park is the first of the 6 members of his family to testify in the case. He is from Korea but has been in the U.S. since highschool. He recounts what happened without one single micro ounce of elaboration. As he starts to explain how he grabbed his mother to prevent her from falling out of the duck, he has to take a moment. Judge Shaffer gently encourages him to wait and get a drink of water. Other than that briefest of pauses there is no demonstration of emotion. Scott and JackG mildly cross him employing the oh your life is so good now technique.

Jae Young’s understated presentation is the polar opposite of the orchestrated posturing of the defendants. As he testifies its as if the stench of the defense is being cleansed from the vast courtroom.

The jurors ask a few gentle questions. Then we play 50 minutes of creator of Ride the Ducks Robert McDowell’s deposition. The darned thing is 2 hours and 40 minutes long. Defendants insisted on designating way too much. That’s okay though. The engineers are taking copious notes.

Spend half an hour after the jury leaves working on instructions. Walk down the stairs with Jesica and Andrew. It is dusk outside. Walk to Andrew’s car that he is still parking in parking garage/urinal. Drops me at house. Open door. Nala launches herself at me. Take her out. Feed her. Retrieve yard long red snake with only one squeaky segment still intact. Throw it down the stairs. She runs down. Finds it. Runs back up with it squeaking madly. Throw it down. Runs it back up. Throw it down. Runs it back up. Over and over again. Until she’s finished.

Day 29

TuesdayNovember20,2018

Email Prologue from yesterday afternoon in court and evening:

Jesica: Vera is on her way (from South Carolina). But she just found out that her mother has taken a turn for the worse and may not survive the night. What should she do.

K3: Oh no.

Jesica: Thoughts.

K3: We will just have to cancel her. Tell her to turn around and go back to her mother.

Jesica: Will email her.

*** couple hours later ***

K3: What’s going on with Vera did she go back home.

Jesica: She’s on her way.

K3: What.

Jesica: She was already there and got on the plane. She will be here tonight.

K3: Well if she needs to turn around she can. But probably she wouldn’t be able to get a plane out anyway.

***couple hours later ***

Jesica: I spoke to her.

K3: What’s she going to do.

Jesica: She says that her mother is in the Lord’s hands. If it’s her time to go it is time. She is here for Phuong and feels like she’s meant to be here.

K3: Well let’s put her on as soon as we can.

Jesica: agreed.

Three years ago I met 18 year old Phuong Dinh in an inpatient rehabilitation nursing home. The name of our 44 member plaintiff group bears her name. We decide to dedicate this last trial day before Thanksgiving, to her.

About half of our plaintiffs’ stories have been told in under 30 minutes. The other half have taken an hour or so. We know through focus groups (as do the defendants) that a symbiotic plaintiffs relationship has been created by this mass disaster. Their claims are all stronger because they are bonded together. Today we are going to spend the time to take a closer look at what happened to Phuong.

Am fiddling with today’s PPTs. Have a few of the exhibit numbers wrong. Melanie and Jesica help me out. Jury walks in and still am in tennis shoes. They do not match outfit which includes a wrapped black skirt featuring a lavender Nanette Lepore jacket that nips in at the waste and flares delicately out in a peplum. Can’t sit and put on court shoes as must stand for jury. They walk by. Wiggle shoes on. Pointy toe heels with an ankle strap plus a strap that goes over the arch. This means four buckles. Before the last juror’s rear hits his chair Judge S says: you may call your next witness. Vanessa is walking back to get him. Am able to buckle one half of one shoe. Tip toe over to dais and retrieve microphone. Straps flapping. Witness takes the stand. Smile at him - please state your name and address. Then bend over to try to strap on rest of shoes.

He says his name and then says he doesn’t know his address. He works all over the city. Continue smiling beautifically at him. Last buckle is almost there…almost. Judge S says: do you work for Seattle Fire Department. Yes. That’s good enough. Buckle secured.

Mark Chapa, Medic, is the last member of the fire department who will be called. His testimony is done in 20 minutes. His job was to decide which patient would go out on which ambulance. He was the first Medic at the scene. The first patient brought to him was the very worst as that is how they are triaged by SFD. The young woman had a depression in the middle of her face. The ambulance was still down the street and Medic Chapa directed the ambulance driver to bring the vehicle closer. In the few minutes it took to get the ambulance moved, a second patient was brought over for transport. She was bleeding due to a ten inch long opening down her leg from which broken bone was protruding. He applied a tourniquet. The ambulance arrived. He looked at the first patient. Determined she was too sick to survive transport to the hospital. Made the objective (but still heart breaking decision) that she would not go first after all. The young woman with the bad leg was taken to the ambulance. The first “red” patient to be transported from the scene. Her name was Phuong Dinh.

Vera Duffie is five feet and maybe an inch of pure darling. Her eyes are bright behind crystal clean glasses. Every inch of gray curled hair perfectly in place. Wearing a knitted shawl adorned with a sparkly broach. She was Phuong’s host mom the year before the crash when

Phuong was in South Carolina for high school. First foreign exchange student she ever had. Vera has a love of photography and we travel back in her memory album. There’s Phuong playing basketball on the JV team – a full head shorter than her classmates. Vera counseled her to go up and in there on the rebounds. Stake your spot. Don’t be scared now. Phuong playing with Vera’s grandkids. Phuong kissing the pastor’s dog. Then after the year was up Phuong went back to Vietnam and was headed to college in Seattle. Vera knew she would have just been settling in. The television was on and Vera saw the duck bus crash. She realized she was watching Phuong being carried on a backboard. She began to pack her bags right away and flew out to Seattle. Stayed with Phuong who was initially in the ICU at Harborview. Lived in the hospital with her for the next two weeks.

Phuong trembled even when she slept. She became very dependent on Vera. After ICU they moved her to a semi private room but the other patient was crying in pain and that triggered Phuong’s memories of her classmates screaming.

Steve Puz: Objection.

Judge Shaffer says sustained and then suggests – if you can rephrase that as an existing state of mind.

Rephrase it: How do you know that.

Because she told me.

Puz: Objection.

Sustained. Can you lay the foundation.

What else could you observe.

I went to get something to eat I would be paged by the nurses because Phuong was frightened that I was not with her and she told me the woman’s cries were triggering the memories of her classmates screaming.

As the grandmother we all wish we had testifies, Puz interrupts her with another objection. Instead of being intimidated, for Vera it is game on. They all pass on cross exam except Puz.

BY MR. PUZ:

15 Q. Mrs. Duffie, good morning to you. Thank you for

16 travelling out here to this trial.

17 It sounds like immediately after the accident you

18 were there, maybe the first person there, and provided

19 a great deal of comfort to Ms. Dinh; is that right?

20 A. I did my best.

21 Q. I believe that, and I just wanted to say thank you for

22 doing that.

23 A. Thank you.

24 MR. PUZ: I have nothing more.

25 THE WITNESS: Thank you.

I turn to Andrew and say. What was that. He shrugs.

David Spanier, M.D. is a forensic rehab medicine doctor. We go through the body board head to toe. Then using many photos of Phuong jumping, squatting, splashing, running, crouching, carrying people on her backs, ask him: can she do that. No he explains. White board all of her surgeries. White board all of her prognoses. But it her range of motion that is the best. Wheel out Aunt Sally the skeleton. She is standing to his left as he faces the jury. But instead of reaching for her limbs. He balances on one leg and does internal, external rotation of the other hip, then knee. This goes on a good five minutes. Andrew leans over and says: Michael Jackson. And indeed as he is flipping his leg back and forth in the air, there is a resemblance.

Cross is awful but at least short.

Scott asks if he’s treated Phuong for any MH issues – Spanier says he didn’t treat her for anything – he is a forensic.

Jack asks if he didn’t treat Phuong for anything – even though that’s what he just said. Then spends 5 minutes asking if the hip replacement will make her better.

Tad asks him to describe the start up that he was working on about 10 years ago.

The jury questions evidence a whole lot of concern for Phuong’s future.

• Will Ms. Dinh be able to have children.

• What would her risks be for a natural birth.

• When you estimated at least 70 outpatient visits did that include PT

• What are the signs that a hip or knee replacement needs to be refreshed.

• If we look beyond functional losses that will affect Ms. Dinh during midlife; are there other effects that will impact her much later in life.

• What is the risk for an elderly person that falls due to loss of balance.

• This may seem minor with respect to what has occurred but can continued use of eye drops affect other medicines that have clonogenic properties.

• Can an imbalance re the eyedrops cause psychological issues.

• Are there any risks regarding medications and risk of suicide.

• As osteoporosis increases does that limit the type of implants that can be used meaning non cement type.

• In terms of future care what is the probability that her injuries will impact her kinematic chain over time.

• Can that lead to back problems

• Can that lead to sleeping problems.

We break for lunch. Thank Dr. Spanier for his excellent testimony. Sit there contentedly. Everything is going splendidly. The current host mother Carol Sue will be up next followed by Phuong herself. What an awesome pre-Thanksgiving sendoff this will be.

Polish off chocolate chip cookie that Andrew brought from specialties bakery. Run to restroom to brush teeth. Return and refasten shoes that have kicked off. Judge resumes the bench 5 minutes early. We rise. She says: we have a problem with juror #7. He is ill. Hasn’t been able to eat and says he feels like he may faint. We have two options. We can excuse him and go with two alternates or adjourn for the day. Looks at me: what would plaintiff like to do.

Am thinking: plaintiff counsel would like to throw her shoes at something and have a full out tantrum in the middle of the courtroom floor.

Instead blink a few times. Say: your honor I need to consult with this afternoon’s witnesses. She grants me permission to leave which I do. In mind already know the answer. When in trial do everything possible to keep jurors on the panel. If let him go we are down to two alternates and have two months of trial left. Reach hall. Give the news to Carol Sue and Phuong. Return. Judge looks at me the whole time am walking down the football field length of the courtroom.

Your honor the plaintiff agrees we should recess for the day.

Pack up. Leave. Walk across street to urinal/garage. Melane, Jesica and I get in Andrew’s car. As we are heading out there is Elisa Hahn and her videographer from King5 putting gear in their trunk. Roll down window. Say: Cannot believe you park in the urine garage. Elisa laughing: we call it the fesces garage. Oh yea I say: Andrew caught people having sex right by his car. Oh yea she says: the other day we watched a guy drop his pants and take a dump right over there. Hahahaha we all say waving goodbye.

Get home. Nala at least is pleased. Go for run. Decide it is not a bad thing that the jury will have to wait another day or week… to hear the rest of Phuong’s story. They know it’s coming.

Day 30

MondayNovember26,2018

Nala is standing at the door. Looking at me with her woebegone spaniel eyes. Say: bye Nala. Close the door. Feel like a traitor.

Listen to Mozart courtesy of uber driver. Arrive at courthouse. Walk up stairs. See the Hiraoka family. One year ago took two trips in the space of two months to Japan to visit them. First trip was a botch job because Scott did not realize you can only take depositions at the US Embassy in Tokyo. Second trip the deposition went forward in the dingy embassy conference room.

Dr. John Clark the lay witness is standing with them. Greet them. Walk into courtroom. Jesica tells me the interpreter is running late. Then she tells me that our three witnesses for Tuesday are being stricken. This is all awesome news first thing on a Monday morning.

Judge enters. Tad introduces a new attorney from Floyd Pflueger Ringer. Apparently the City has decided it maybe shouldn’t be doing this completely inhouse. Lean over the lego wall and whisper: so you guys still need more attorneys. Jury enters. Judge Shaffer says calls your next witness.

Call Dr. John Clark. A professor at the UW and former chair of health sciences department he met Dr. Hiraoka in the 90s when he invited him to the UW for a 2 year fellowship. He recalls the family. The friendship. Dr. Hiraoka’s prowess. Recounts wondering why the family was late to dinner September 24. Worrying they might be on the duck. Spending hours trying to track them down. Meeting the male members of the family at the hotel. Not being able to find Mrs. H until the next day. He is a lovely man. When he talks his entire face smiles. Eyes crinkle up at the corners. Not with mirth. But with sweetness and concern as he sets the scene.

Next should be Dr. Hiraoka. But the interpreter is a good 30 minutes away. Mary court coordinator of interpreter is in the room talking to Jesica at her table. Mary is upset that the interpreter is late. Resume the video deposition of Mr. McDowell duck inventor. Play 45 minutes. The interpreter arrives. Jesica instructs her to go in the hall with the family to get acquainted. Playing the deposition is not exactly a bad thing. It is 2 hours and 40 hours long. After this 2nd installment we have played it down to 1 hour and 15 minutes left. Kind of like watching a tv show in the old days before you could binge watch an entire series on Netlix in one sitting.

The interpreter and Dr. Hiraoka take the stand. She is a bit rattled. It takes a few minutes for her to start doing everything properly. Judge S is a little exasperated with her.

By the end of the day we get through Dr. Hiraoka and two sons Kenichiro and Yousuke. They are quiet, pristine, witnesses. They sit with their hands folded in their laps. Legs symmetrically together. The only movement is in their heads as they turn toward the interpreter. Their answers are without any elaboration along with the pronouncement: that is all.

Q Can you describe what you felt.

A I was worried. That is all.

Q What are your concerns about X…

A She has a problem with her legs. That is all.

What’s interesting to me during the testimony of the Hiraoka family, are the fruitless actions of the defendants. They are so bad. And yet they persist.

Puz objects to innocuous things like Dr. Hiraoka going through the body charts for himself and his sons. Hello he is an M.D. In fact since we won’t be calling a doctor that reminds me to ask him whether in his opinion his injuries were suffered as a result of the crash. Objection! Says Scott. He’s sustained. Even though I point the plaintiff is a medical doctor. So rephrase it: Are there any other reasons you can think of why after September 2015 you cut back your job, you’ve had problems concentrating, and you are tired. To which Dr. H responds it was triggered when he hit his head and fainted.

Tad asks the silliest cross question – if the reason for Dr. Hiraoka’s trouble concentrating is because he is now 63.

For Yousuke the 23 year old younger son, JackG tries to impeach him for saying he’s scared to drive and now only does so about twice a month. He goes to his deposition where it says he drove 4 times a week because of where his living situation was. Oooh Jack thinks he’s scored points. Until on redirect Yousuke points out that the deposition was held before he moved to his current residence which is in a different location.

For Keni the 27 year older son who had his 2 front teeth knocked out and has crowns, Scott starts cross off by instructing him to smile at the jury so they can see how good his teeth look. There’s something slightly offensive about this request. As if he’s asking him to perform a trick. Keni smiles and the jury smiles back at him.

The jury questions are so uniformly compassionate that you would think the defense might want to reconsider their strategies. But they have a game plan and they are sticking to it. I wonder for the millionth time how much they are paying their jury consultants to do nothing.

The clock strikes four. The jury files out. Judge Shaffer says: well it looks like we’re on track…We will have to deal with the interpreter one more day (for Sonoko) and will then wave her goodbye because she’s really slow.

Turn around and yep. The interpreter is still in the courtroom mouth slightly open as she listens to the judge.

Day 31

TuesdayNovember27,2018

Today there’s just something about the whole room that sets me off. Have been walking into this courtroom for close to two months now. Managed to maintain temper. Rarely object. And for the most part keep eyes from rolling around head. And yet today am just done.

Start by recalling Mazda the then 18 year old student who ended up thrown into the stairwell of the bus with a fractured pelvis and other assorted injuries. She wants to correct one of the photos Pat showed in cross. Pat claimed it was taken Jan 2016 not even 4 months after the crash. This bothered Mazda who went home, checked her camera and found the photo was taken a year later 2017. The defendants all suggest we stipulate. But no. She gets to come back in. Those jurors were taking good notes.

She settles herself in the witness chair. Corrects the evidence in 2 minutes. And then wouldn’t you know. Pat crosses her. Not on the corrected photo. Pulls up another photo of Mazda standing in the snow which was taken the year before in a parking lot.

Objection: Beyond the scope. it has all been covered before. Judge: overruled.

Is that the date Pat says. Mr. Allen from prolumina highlights each place on the facebook page where there’s a date. This is so petty. Then Tad asks questions of another photo that Mr. Allen pulls up where Mazda appears to be standing next to others who are in wheelchairs. Now need to get up and redirect almost verbatim the way we did it the first time. So she can explain again a) she was in a parking lot; b) she looks like she’s standing but she’s being propped up because she was on crutches. Like an automatic replay. What a waste. Teeth grind. Clench.

Let me comment on Prolumina. Their set up is great. Corrie is professional, prompt, and very nice. Yet, from the moment we began negotiating how to set up trial, have kept up a barrier with Prolumina. At first we were going to bring all of our gear in. Ended up relenting to avoid having two different screens. We share use of the giant TV. We all have connected monitors that shows us what’s playing on the big tv. If we need to see something before it is published to the jury Corrie can limit it just to counsel and court monitors. Beyond that there is no way in heck we want to share anything with the defendants. We run our own powerpoints from our computers. We run our own skype/gotomeeting from our own computers. When we put up exhibits we don’t say: Mr. Allen please put up exhibit X. We do it ourselves. And today when Pat and Jack and Tad and Steve are asking Mr. Allen to put up their exhibits to cross our witnesses, am irritated that he is helping them. And glad he isn’t doing the same for us.

Dr. Richard Seroussi physiatrist is next. Will spend the next two and a half hours covering 4 plaintiffs in detail – Mazda, Yuta and the Zielinskis. Does a wonderful job. All of our experts have been spectacular and he is no exception. Uses the 3D imaging, Aunt Sally the skeleton, the body boards and white board his recommendations given to the life care planner. After he is done with the first plaintiff we take a break. The jury leaves.

Jack stands up and says: your honor we would like to mark the contents of the whiteboard as an exhibit. Before can stop it my mouth says: what do you think you’re doing it’s my exhibit and I’ll mark it. Continue to mutter. Stomp off. Doug Phillips cocounsel for Mazda and Yuta takes a step from the row where he’s been sitting out into the walkway. Stands there smiling. Watches me rant about how much detest all the defense lawyers. Apologize for bad temper. Explain: the moment just came over me. Every day we walk in that room and there are 20 or so of them and 2 or 3 of us and it is just a fact. Not sure why today feels any different. Doug hands me a blue pouch. Open it. He has been in Africa and has returned with a beautiful black and red beaded bracelet. Clasp it on. Miraculously am healed of all anger. Hug Doug. Head back to the stage.

Dr. Seroussi dances through his testimony almost up to the noon hour. Scott and Steve take turns objecting. They make me have to say repeatedly: are your opinions on a more probable than not basis to a degree of reasonable medical certainty over and over again even though have prefaced the beginning of questioning by having him agree that all of his opinions will be to that over exacting standard that technically don’t even agree with. More probably than not should be enough. But Judge Shaffer always upholds those objections. So the mantra flows from my mouth like a chant. This irritates me. The spell from the bracelet begins to wear off.

After lunch Dr. Seroussi is crossed by Scott, JackG and Tad.

Scott bugs me because his cross is founded upon going through the deposition. He will not deviate from it. Even though it means I already know the cure.

JackG bugs me because he tries to act all nice and casual like a young Jimmy Stewart, but there is no moral high ground involved. He wants to win more than anything else. And that’s not going to happen.

Tad bugs me because he tries to make light of everything without fail.

They all bug me.

Our last witness from the Hiraoka family is next. Sonoko was most seriously injured. The interpreter whom the judge disparaged yesterday is there. And you know what. That interpreter is slow as molasses. There’s a reason we fell behind yesterday. She continually asks Judge Shaffer for permission to look up words. She is okay interpreting English to Japanese because the court reporters use real time and all she needs to do is read the questions from the computer. But interpreting from Japanese to English – that interpreter irritates me.

We have 15 minutes left to squeeze in the father of a Korean tourist who was injured. His interpreter is superb. It’s amazing how much difference it makes for the tempo to be sped up again. This makes me mad because the Hiraoka family deserved to have had a faster interpreter. The father is explaining his shock in learning that his son who went into mandatory military

service after the crash, was hospitalized in the army – not because of something that happened to him physically, but because he had developed claustrophobia after this crash. In the process of his explanation, the defendants are objecting to hearsay and Judge Shaffer has to sustain them and then explain to the confused witness what has happened and I have to reframe the questions and finally we get the answers all out.

The jury is watching all of these struggles. The barrage of objections. The witnesses’ confusion. The judge’s rulings. The persistence involved when reframing the questions so that they can garner responses that will withstand the objections.

The jury leaves. Andrew argues jury instructions for half an hour. Sit back and listen to the chorus of the defense pitted against our one.

Day 32

WednesdayNovember28,2018

The father’s testimony pauses to allow a skype witness. Dr. Laukant from Wisconsin – doctor for Rhonda C the former UPS driver who lives with her wife in Amish country. We are avoiding calling doctors except for the cases involving surgery. Here, the defense has denied all of the medical bills and so we need to go through the technical dance of having a primary care provider testify that the referrals were appropriate, the care reasonable and necessary, and the total hip replacement in particular related to the crash.

In the first minute of testimony, ask if she’s a treating physician for the plaintiff, and Steve Puz objects.

A few minutes later after she runs down a list of injuries she referred the patient out to specialists for, ask her if they were more probably than not related to the crash. Tyler Hermsen (RTDI): objection. Sustained.

Have her lay out her board certification, confirm (again) that she is a doctor. Reask the question. Pat: Objection compound. Overruled.

Very next question: now the treatments that you referred her to, where those reasonable treatments. Tyler: objection. Overruled.

Move to admit medical record summary under ER 1006. Tyler: Objection foundation improper. Pat: join. Court overruled.

This is how it goes for an hour. Everything is objected to by the defense who continually join each other. It’s almost charming to see how in sync they are with one another.

Q With respect to the charges that you've identified

4 as having knowledge of, in your opinion as a medical

5 doctor in Wisconsin who has made referrals in that

6 community, were these charges for the services that you

7 would have directed reasonable and necessary and

8 customary.

9 MR. PUZ: Excuse me, your Honor.

10 THE COURT: Overruled.

11

MR. PUZ: Can I please get my objection just for the 12 record.

13 THE COURT: Overruled. Answer the question.

14

15

MS. BUCHANAN: I'd like to join the objection.

MR. HERMSEN: RTDI, as well, your Honor.

16 THE COURT: Got it. Overruled

17 BY MS. KOEHLER:

18 Q. Doctor, can you answer that question.

19 A. Yes, those look reasonable.

Do not lose temper. This is a doctor in a rural community who has probably never testified in court before. She’s doing a really nice job despite the defense protest going on over here.

Take a look at the jury consultants sitting back there – separated so no one will notice they are intently examining the jury. Either they are giving the worst advice to the defendants or they have totally lost control.

Because there is no way the jury is thinking anything other than – so the defendants won’t even agree that these folks’ medical bills should be paid. Here are their questions:

• Do you believe that the auto accident made Rhonda’s pre-existing musculoskeletal issues worse. Please explain.

• Do you think Rhonda was able to perform her job before the accident.

• Do you think Rhonda was able to perform her job after the accident.

• What were the major differences between Ms. Cooley’s ability to perform her job before and after the accident.

Donsoo the father resumes the stand. Finishes his testimony. It is marvelous to watch him. His face is absolutely impassive. There is no change of expression as he speaks to the interpreter. But his words are embued with an almost exquisitely understated emotion. He uses me as a focal point and I of course send him positive energy beams as we navigate through the maze of objections.

Kwang Park has to go next as his plane leaves today. He is also Korean but not a member of the family. Was a student volunteer on the bus. Vice President of the Korean Student’s association and in charge of the new frosh class. He is explaining what happened. Like Donsoo his face is almost like a mask. But there are subtle give aways. He has a nervous tick and keeps touching his face. His face becomes red. His eyes fill as he recalls Kim Ha Ram. How he cannot stop thinking of her. If only he had gone up to her in the bus and asked her to move to the back with the others, maybe she would be alive. He is weeping inside. Can feel it. This stoic, chiseled looking young man who no longer enjoys his sports and feels he is responsible for what happened. My reaction is involuntary. Don’t want to act on it. Not now. But there is nothing for it. Bend down under table and dig into purse as atear lands on the floor by black boot. Sit up. Look away from the jury.

After lunch we have to move/cram downstairs into Judge Shaffer’s real courtroom as a swearing in ceremony is being held up in our big courtroom. Manage to get through the elder sister/mother, grandfather, and son of the Kim family. So grateful for co-counsel Jongwon Yi’s prep and care of them. They speak no English at all.

It is during the testimony of Sang Woo Kim, the son that the worst question of the day – perhaps the entire trial occurs. After the crash Sang was completely covered by a woman who was laying completely on top of him. He could not extricate himself and couldn’t move. Until his brother found him and was able to help him. When he got up he saw bloodied people, people who had died, utter chaos. The week after the crash Sang Woo had to join the army. Military service is mandatory in South Korea and he had already been scheduled to show up on that date. Shortly after he began, one of the exercises involved setting up a tent for 2-3 people and spending the night in it. He set the tent up. Went to go inside. Could not. He had developed claustrophobia. There are many other examples. He explains the shame involved of this happening in the military. Perhaps because after he woke from the crash a woman was laying on top of him and he could not move or get up until his brother found him and helped him.

Vanessa: Mr. Kim, you mentioned that you had images of people who were dead. How did you know they were dead.

Bite inside of mouth. Can feel the jurors looking over me. Like they want me to object. Feel slightly guilty for the bubble of horrified laughter that is having a cow inside my throat.

Sang says with the direct honesty that defines this family: because the firefighters were trying to resuscitate her but couldn’t and covered her with a white sheet.

Vanessa follows up with another clunker: how far away were you from that. To which Sang responds: close enough to see it with my own eyes.

Later Jongwon tells me that when Vanessa asked the questions, Steve Puz had a pained look on his face that seemed to say – why are you doing this to us.

Day 33

ThursdayNovember29,2018

Uber driver is listening to the news. Right as we turn onto James street the newscaster begins discussing our trial. Jump out at fourth. Down the stairs to the tunnel. Up the stairs to 9th floor. Exit stairwell . Walk right into JackG and Brian Tracey, president ceo of Ride the Ducks Seattle. Today’s guest witness. Manners take over. Say hello then choke a little.

Enter courtroom. The rear table is filled with local media. Wave hello. Pull out gear. Remove slip on sneakers. Buckle Stuart Weitzman peep toe wedge platforms. Today’s costume is that of avenging angel. Knee length black St. John knit skirt has white stripes down the middle front –just like a roadway. White jacket by Derek Lam is made of heavy silken robe like material. Ties at the waist with a same colored fabric golden buckled belt that artfully dangles past the hem. The sleeves are narrow to the elbow then flare out dramatically. Black racerback scoop neck lululemon. 6 rings. 1 applewatch. 1 bracelet. A vintage dangling CC necklace. And the ever present diamond hoops bought at a Public Justice auction more than a decade ago. All movement results in flutters and flashes of glitter.

Brian Tracey is on the stand. The person who is still in charge of the entity that killed, maimed and changed forever the lives of the victims and survivors that we represent. Would like to yell at him. Line up all 43 body boards in the courtroom. Force him to look at what happened to them. Make him cry. Instead start off nice and polite. Judge Shaffer quickly decides he’s a hostile witness and let’s me ask leading questions which is a pure joy.

BY MS. KOEHLER:

25 Q. Am I correct that you believed that by hiring Mr. 1 Krauthamer and Mr. Johnson, that that discharged you 2 from having to know what their actual daily detailed 3 jobs were.

4 A. I do, because I hired them because I had complete faith 5 in them, they were good at their jobs, and I don't 6 micromanage people. I put them in a position, and I

7 trust them to do their jobs.

8 Q. So you put a safety officer in a role where he had 9 never, ever been a safety officer before, and didn't 10 micromanage him or follow him up at all until this 11 crash; am I correct.

12

A. That wouldn't have been my job.

13 Q. Whose job should it have been.

14

A. The -- well, he answered directly to the operations 15 manager.

16 Q. So you believe that Ryan Johnson insulated you from 17 having to ensure that the safety officer was doing his

18 job properly.

19

A. I think that everybody is responsible for safety in the 20 company. It always has been that way, and I think that

21 the reason for that is that then if someone misses

22 something, someone else will catch it. So everybody in 23 my company was responsible for safety -- oversight of 24 safety, and that included oversight of everybody.

25 Q. What if somebody doesn't catch it. Isn't that kind of 1 a bad way of doing business, just hoping people will 2 catch it.

3 MS. BUCHANAN: Objection, compound. Also calls for

4 speculation.

5 THE COURT: Overruled.

6 THE WITNESS: Could you repeat the question, please. 7 THE COURT: What if someone doesn't catch it. Isn't 8 that kind of a bad way of doing business, is hoping 9 people will catch it.

10 A. Well, obviously, in a business or in life you hope that 11 you never miss anything, but sometimes you do. But 12 it's not through anybody's fault, it's just -- it just 13 happens.

14 So I would say that it's a great way to run a 15 business, to have everybody responsible for safety.

16 It's the best way, because then you have lots of eyes

17 and lots of ears trying to figure out whether or not

18 something is a potential danger.

19 BY MS. KOEHLER:

20 Q. Where does the buck stop for safety at Ride the Ducks 21 Seattle.

22 A. Everything, the buck stops everywhere with me. But I 23 hire people to take care of that, to make sure that we 24 are safe.

25 Q. So even though the buck stops with you, you don't take

1 responsibility for anything that isn't safe at your

2 company; is that correct.

3

A. I take responsibility for everything at my company, and 4 that's why I hire people to do their jobs.

We break at 10:30. Walk over to Jesica, Melanie, Garth and Lisa. Say: am I being mean enough. Melanie and Jesica shake their heads no. They want me yelling at him. But it is not my way to shout like JackS or SteveP.

We resume briefly. At 11:00 Tracey gets off the stand. We take a half an hour detour to finish the testimony of Grandmother Kim from yesterday. This the only time the newest interpreter could attend. She is so sweet. Almost hate to push her. She tells us she still has fear. Nudge her just that little extra bit: what are you fearful of. And she begins to weep. She still has nightmares and though she tries to do her best to forget about the accident, she cannot. My heart aches for her. She leaves. And Tracey re-enters.

Getting more combative means that Judge Shaffer is sustaining quite a few objections. Don’t care. Are you in denial. Objection sustained. Isn’t it your duty to make sure you’re told the truth. Objection sustained.

Have him write out what he believes his company’s duties were to its passengers. In the worst handwriting of the entire trial, crooked and so small the jury is squinting to read it, he writes:

deliver safe family fun deliver value to our customers deliver a memorable experience

As the morning has progressed so has my pacing. Don’t care to stand still. The jury is following me. Back and forth. Forward back. Back and forth. Stopping and spinning. Glittering. Flowing. Brows knitted and yet somehow arched all at the same time.

25 Q. Do you believe on September 24th, 2015, that your 1 company failed in its duty to deliver safe family fun 2 to its passengers.

3 MS. BUCHANAN: Same objection.

4 THE COURT: I'll allow it as to his understanding

5 that he's put on this illustrative exhibit.

6 THE WITNESS: Could you repeat the question again,

7 please, for me.

8 THE COURT: She's asking whether you think you met 9 this obligation that you put up on this board here.

10 A. Yes, at the time, knowing what we knew, I believe that, 11 yes, the answer is yes, knowing what we knew at the 12 time.

13 BY MS. KOEHLER:

14

Q. You had a wheel fall off a Duck, on a public road. How 15 can you feel as president and CEO that that was proper 16 in any way.

17 MS. BUCHANAN: Objection, your Honor, argumentative.

18 THE COURT: Overruled.

19 A. As I said, at the time we did everything that we could 20 do, knowing what we knew at the time, it was an

21 accident.

22 BY MS. KOEHLER:

23 Q. An accident isn't preventible, isn't that right. This

24 was preventible, isn't it.

25 MS. BUCHANAN: Form.

1 THE COURT: Overruled.

2 A. At the time, I don't think it was. I mean, I think it

3 was preventable. That's a matter of knowing everything

4 that you need to know to prevent something, which we 5 didn't.

6 BY MS. KOEHLER:

7 Q. You should have known everything you needed to know to

8 prevent this crash, shouldn't you have.

9

MS. BUCHANAN: Objection, your Honor, speculation.

10 THE COURT: Overruled.

11 THE WITNESS: Question again, I'm sorry.

12 BY MS. KOEHLER:

13 Q. You should have known how to -- you should have known.

14 A. Well, you don't know what you don't know.

15 Q. But you should have known about this service bulletin, 16 correct. You should have known that you didn't

17 implement it, correct. You should have known that that

18 vehicle went out in a dangerous condition, correct.

19 You should have known all of that.

20 MS. BUCHANAN: Objection, compound, and asked and

21 answered.

22 THE COURT: Overruled.

23 A. I should have known, but I didn't know.

24 BY MS. KOEHLER:

25 Q. That's inexcusable, isn't it.

1 A. I'm sorry, what.

2 Q. That's inexcusable, isn't it.

3 A. That I didn't know.

4 Q. That's correct.

5 MS. BUCHANAN: Form.

6 THE COURT: Overruled.

7 A. I can't answer that, because I didn't know.

8 MS. KOEHLER: I have no further questions.

Walk back. Sit down. Turn around to Jesica and Melanie. Say: was I mean enough. They smile yes.

Then comes the shocker. Throughout this trial the duck defendants have been attacking each other. Pat methodically. JackS loudly. Judge turns to Ride the Ducks International. And they pass.

Go back a row and sit with Andrew. We agree things are going so badly for the defense they are trying anything they can to minimize the damage. But they cannot erase the past almost 2 months where they’ve been at each other’s throats in front of the jury. Pat does a brief rehab of her client. Steve Puz – who has been objecting during direct (another clue of the new unified defense) asks a single clarifying question. Then passes. Tad as well.

Not to worry, the jurors’ questions more than fill the void (thanks Melanie for typing these out):

1. What does the phrase good governance mean.

2. What’s the purpose of a good governance policy.

3. Why did you refuse to hire more mechanics even though Joe Hatten continually requested more mechanics. Please explain (Judge: Juror wants you to explain what the input was that mattered to you here. What were your reasons)

4. Before you hired more mechanics, why didn’t you hire them.

5. Do you feel personally responsible for the accident.

6. In concrete terms, when you look at 65.8, how is “prevention of human injury or loss of life” mentioned in ex. 65.8 translated into the description of job responsibilities for the director of safety position/.

7. Is ex. 65 the document that spells out the roles and responsibilities of your employees.

8. You mentioned that responsibility for compliance with governance and standards was levied on Ryan Johnson, the maintenance manager and shop foreman. How were their responsibilities reflected in their job descriptions.

9. Looking at ex. 757, in terms of safety bulletins, how did you personally ensure that checks and balances were in place.

10. Is there any written evidence that the status of safety bulletin completion was monitored on a regular basis, weekly or monthly.

11. Do you know what written evidence there is that the status of safety bulletins were completed.

12. You mentioned you had a goal to get everyone involved with safety, how was that reflected in your good governance policy.

13. When you look at duties to passengers you wrote down, how do you prioritize them.

14. How does driving a duck provide experience with regulatory issues with regular wheeled vehicles.

15. Before this accident, did you have a discussion with anyone at RTDI or RTDS about axle issues.

16. What’s the last service bulletin you remember seeing or being told about before the accident.

17. Can you describe your average weekly hours at the onsite offices. How many days a year are you not physically present at one of the RTDS offices..

18. How often did you have meetings with Ryan Johnson. Weekly, monthly or annually.

19. Did Mr. Johnson ever mention service or safety bulletins in your meetings with him.

20. What questions if any did Mr. Johnson ask you regarding service bulletins.

21. What questions if any did Mr. Johnson ask you regarding costs to completing service bulletins.

22. Did you ever ask anyone to include you in safety concerns before the accident.

23. Can you explain when or how people included you in safety concerns before the accident.

24. What were you hoping to gain by informing maintenance staff that you were incurring financial losses due to maintenance being behind schedule.

25. Can you please describe an average work week for yourself before the accident.

26. At what monetary amount did you expect Johnson to inform you about the cost of repair or issues related to maintenance.

27. How many ducks would have to go out of service before Johnson would normally inform you.

In one of his answers, Tracey tells the jurors: since day one, there has been no expense too great if it had to do with safety with Ride the Ducks Seattle.

This is how we will end. Write it on whiteboard in giant letters.

Q. Mr. Tracey, do you believe that no expense was spared 23 in tracking the service bulletins that came to your 24 company from Ride the Ducks International.

25 MR. PUZ: Objection --

1 A. You'd have to ask Ryan Johnson and the mechanics about 2 that.

3 THE COURT: Hold on.

4 MR. PUZ: I was just going to object to form.

5 THE COURT: Overruled.

6 A. I said you'd have to talk to them. I mean, as far as

7 expenses are concerned, I never withheld any expenses

8 for something that had to do with safety. But I was 9 unaware of the safety bulletin.

10 BY MS. KOEHLER:

11 Q. Mr. Tracey, did you use your ignorance of what was 12 going on in your company to avoid having to spend money 13 for safety.

14 A. Absolutely not.

15 MS. KOEHLER: No further questions.

Play the final hour of Robert McDowell’s testimony which turns the focus back on RTD International. Andrew takes WSDOT’s designee Mark Leth through the paces in establishing the timeline of them saying the bridge needed a barrier and then doing nothing about it for the next 25 years.

Jesica has called an uber to take us back. Hurry down the aisle after her. Fluttering and glittering all the way.

https://komonews.com/news/local/ceo-of-ride-the-ducks-seattle-testifies-at-trial-for-2015-fatalcrash

https://www.king5.com/article/news/local/ride-the-ducks-seattle-owner-defends-company-onwitness-stand/281-618685133

https://www.kiro7.com/news/local/opening-statements-delivered-at-ride-the-ducks-trial-ontuesday/854188041

https://q13fox.com/2018/11/29/ride-the-ducks-of-seattle-ceo-defends-company-in-civil-lawsuitover-deadly-aurora-bridge-crash/

Day 34

FridayNovember30,2018

Prelude:

Arrive for gotomeeting in conference room that has been ongoing with Andrew, Jesica and expert. Need to say hi and deal with a few final touches. Nala is with me. Thankful not to be stuck at home. Am sitting on top of the conference room table. Don’t realize it. Andrew is laughing and snaps a photo. Oh.

All of a sudden Jesica says: Karen what is this on Nala’s head. Look down. She has her arms around Nala. Is peering at her scalp.

Oooh It’ s a bug she says. I think it’s a bug.

No I say. Hop off table.

Andrew hasn’t missed a beat with the expert. Crouch down with Jesica. Squint at Nala. Can’t see much. Contact lenses don’t fully work anymore. Plus the ones am wearing are blurry. New ones arrived at the eye clinic 3 weeks ago. But they are not open on the weekends. Grab specs out of purse. Peer at Nala’s forehead.

Aurora Bridge Trial Diary - 93

Jesica says with mounting hysteria: it’s a bug.

No. It’s just. Well it’s a pimple. I say.

No it’s not she says.

Well maybe a big pimple.

No it’s not it’s a bug she says.

Reach into a purse get a tissue. Place over hand and over apparent pimple and tug gently. Nothing. Jesica falls back saying: oh gross gross. Ohhh.

Nala sits still happy for all the attention. Tug a bit more firmly. It doesn’t hurt. So yank harder. Off it comes. Along with a splash of dark blood.

Oh gross. It is a tick.

Realize Nala has one more on her side that she dealt with/bit off on her own.

This all is probably from us hiking up Dirty Face peak near the cabin 2 weekends ago. Had no idea. Oh dear.

Jesica runs out and returns with a baggy to retain the evidence. She says: you need to take her to the vet.

Meanwhile the expert is still talking with Andrew. Oblivious to the drama.

Ask Jesica to call Urban Vet. She runs out of the room.

Return to the screen and prepping the expert.

Jesica comes back. Advises it is not urgent. Need to take Nala in for a blood test in a day or so.

Complete call with expert. Head to court where we have an afternoon session. On way am on phone chatting with an attorney friend. Say: you know how in a long trial there are always up days and then down days. Well we have only had up days.

As soon as say them want to grab those words back. Should never have uttered them.

Before we made the decision not to call all the foreign health care providers for people around the world had a local physiatrist perform an independent medical exam of four members of the Kim family. Chose him specifically because he was fluent in Korean and thought that would be nice for the family. Begin to run him through his examination, diagnoses, prognoses. Realize there is a problem. He does not understand a forensic examiner’s role. The defense is ecstatic and objects constantly to their delight. Even I am cross examining him.

He says grandpa Kim’s hearing loss was related on a more probable than not basis to a reasonable degree of medical certainty to the crash. Ask for the basis of this opinion. He says: because that’s what grandpa told me. Ask if he has reviewed any records, treatises or any other document to support his opinion. He says no. It gets better… He reviewed all the records we provided him except the ones in Korean because though he is fluent he cannot read Korean medical terminology. Ask if he has reviewed all of the records that were translated into English. He doesn’t know of any such records. Ask if he was provided with them (he was) and they were even attached to his deposition. He doesn’t remember. Even if he has them he didn’t read them.

This goes on for two hours.

Scott jumps up with alacrity to begin cross. This is so exciting for him. Best ever opportunity yet. He gets started and then the clock strikes 4.

After the jury leaves Judge S asks about schedule and observes:

Judge S: That was a really long examination.

K3: A lot of objections your Honor

Judge S: I don’t think that’s what made it long.

K3: Well maybe I’m losing my touch and just getting very slow and worn down and feeble.

Because that’s what you do when an expert tanks. You throw yourself under the bus.

Postcript: The veterinarian office was open on Sunday. Nala’s blood work came back clean. She’s on a course of antibiotics because the bump on her side was a bit worse for wear as she had been licking it.

Day 35

MondayDecember3,2018

Arrive. Today is a big one. Resumption of Dr. Olson forensic psychologist. As you will recall, his first go round was a struggle. At the rate we were going it would take two maybe three weeks to put on his testimony. So we came up with a plan.

Am running around in sneakers. Need to move 40 of the body boards up to the bench for ease of use. Wipe down the white board as it is first up. Erect easels and photos of the duck striking the bus and of the scene plus the victim line up. There is way too much. Spy a third easel. Decide to put the body board up on the far end of the jury box facing the 90” tv screen.

Kevin the court reporter says: are you going to be able to put your shoes on in time. Smile back: probably not. Judge comes in. No no not quite ready. Hurry. Rush back to seat area. Pull on booties as jury is walking in. They are used to the sight by now.

Reach into purse to silence phone. No phone. Don’t panic. Check all pockets. No phone. Don’t panic. Check computer bag. No phone. Check jacket. No phone. Panic.

Judge says: call your next witness as am mouthing the words to Jesica and Debbie: must have left phone in uber. At same time am typing email to Ryan, Cynthia, Jesica, my children, Michael, Brad, Andrew: lost phone. Ryan and Jesica immediately start trying to find it.

Announce: Plaintiff calls Min Keong Kang. Sweet now 24 year old walks up with interpreter. Sworn in. Cannot find cable for Prolumina hookup to tv. There are too many of them. This one doesn’t work. That one – yes it works. Ask Min to state her name and address. And then brrrrrriiiiiing. Wrist rings.

MS. KOEHLER: Your Honor, this is highly irregular.

3 May I take one second. I left my phone in the Uber. I

4 think it might be the driver calling my watch.

5 THE COURT: Yes, go ahead.

6 MS. KOEHLER: I apologize, your Honor.

7 THE COURT: No problem.

8 MS. KOEHLER: I feel like Maxwell Smart.

9 THE COURT: Don't worry. You'll find your phone.

10 MS. KOEHLER: Thank you, your Honor.

Uber is just giving me a code which I give to Jesica so she can hack my account. Not quite half an hour later, Mr. Ulmer the bailiff exclaims: there is a phone here on the bench. In all the exhibit chart running around left it up there and forgot.

Mondays.

First let me say that the defense continues to be detestable This young woman struck her face and injured her nose which had recently undergone a plastic surgery procedure. She went back to Korea to have surgery to fix it. Scott doubles shame her and says: not only did you have the nose work but you had something done to your eyes before the crash. He then tries to slide in that the attorney for Min referred her to a chiropractor. This has already been excluded by

motion in limine. Before I even finish the objection Judge Shaffer says: sustained move on. Then Tad Seder tries the exact same thing by asking how she got to the emergency department a week later. Judge Shaffer cuts him off. During break make a record of defense counsel’s deliberate two attempts to violate a motion in limine.

Enter Dr. Olson.

We start with addressing my request that we do this testimony in a fraction of the time he’s comfortable with and how does he feel about that. Admits how hard it is because he wanted to be the voice for these plaintiffs and he knows so many details, but he understands the need to move it along. Then go headfirst into that which the defense thinks we fear the most. We do Q&A which I summarize on the white board as follows:

Clients evaluated= 40 for this case 46 total

Clients using interpreters = 20

Total hours interviewed = 492.15 hours

Total Time spent all files = 2101.68 hours

Total Hours deposition preparation = 209.92

Days Deposed =12.5

Total Records reviewed = 38,796 pages (15 banker boxes)

# Defs psych exams reviewed= 11

Bibeault: Dinh, Cooley/Gerke,the Zielinskis

Muscatel: Hutapea, 3 of the Sheldons

Wolman – The Gesners

Hourly rate= $275

Average cost/client = $15,675.62

Total charges: $627,024.74

Write the total 4 times bigger than anything else and circle with a flourish. Instead of hiding this number we are embracing it. He has been paid a huge amount because this is a huge case. There is nothing to be ashamed of.

The jury is taking detailed notes. They do not flinch.

What would have improved what comes next would have been a theater prop design where we could pull a lever and the different backgrounds could be interchanged. Instead the jury is physically surrounded by the tv display, body diagrams, whiteboard, photo montage of all plaintiffs and chart masterpieces that our team put together per the doctor these past 2 weeks. Jesica and Debbie change each body board with the next plaintiff in line. Andrew helps move around the chart boards.

The tv is displaying a breakdown of all of the appointments, hours and expense for each plaintiff. We go through person by person as follows:

Name Dates interviewed Dates tested Interpreter Hours interviewed Total hours Total charges

We begin with plaintiff Sara Johnson. You can tell what a lovely caring person she is. Go through her story. Her pain. Her guilt that she felt responsible for trying to show her cousin the city and instead took her on that duck. The images she sees in her mind every day. Still.

Scott imaginatively asks her about x-rays and lack of broken bones. Her pre-existing emotional status. Jack asks her a dumb open ended question (his specialty) about the counselor she’s seeing which she is able to explain is a specific trauma counselor for issues from the crash. Vanessa asks if she had marital counseling before. Try not to act visibly disgusted but can’t help it. They all make my skin crawl. Walking up there. Saying hello. Pretending to be nice. Then ganging up to ask mean questions.

Tony walks in. Cradling a file binder. Like Dr. Olson we qualify then move straight into undoing the way he’s ever done a case before. His whiteboard reads:

Clients evaluated. 40

Clinical casework

Client contact 265 hours

Medical provider consultations 89.4 hours

Records review 500 plus (38,000 records)

Total medical treatment reports 80 hours

Total foreign care treatment reports 50 hours

Total life care plan reports 240 hours

Total deposition preparation 7 hours

5 days deposition

Review 17 defense expert reports

Total time spent 1,300 hours

Total amount charge $300,000 rough

Write that last amount in giant numbers and circle it to make sure no one misses is. Awesome. We’ve penciled almost $1M in expert fees for 2 of them in consecutive days. Jury does not blink. Choppa’s never had a case where the fees anywhere approach this.

Go through process of what he does. Explains just like Dr. Olson that this is out of his comfort zone. Would have rather explained each case in detail. But since that would have taken days is altering his style. At one point I dub it the speed dating style to presenting this mass of information. Chart on the TV. Dr. Olson’s future treatment charts. The body diagrams. Jesica hands them to me back and forth and we are absolutely in a smooth rhythm. The jurors are looking at everything and writing nonstop on their notepads. We absolutely run through 40 sets of opinions which include 9 life care plans. End with half an hour to spare.

Honestly, there is nothing like Choppa going through a detailed life care plan. Have been on large cases where he spent the better part of an entire day presenting on a single plaintiff. But we absolutely cannot do that here to this jury. We need to get them the numbers, the basis, and get out.

When we get to the Kim family. Can feel the defendants sharpening their teeth waiting to get everything set up for the kill. Say ever so gently.

K3: Which providers did you consult with regarding future care needs for Grandpa Kim.

TC: Dr. Olson and Dr. L

K3: Did your final opinion that you are presenting to the jury include the recommendations of both doctors.

TC: No.

K3: Why not.

TC: You had a discussion with me yesterday and advised that Dr. L did not have a good understanding of what a forensic opinion should be and that I should not rely upon his opinions.

K3: What are your calculations based upon.

TC: Only Dr. Olson’s recommendations.

Steve Puz raises an eyebrow. You can hear Tyler suck in his breath. Yep. Threw the expert under the bus. Decided that the only way to deal with the problem was to face it head on and be absolutely honest with the jury. Not only do we take away cross exam exposure for Choppa. But their future cross of Dr. Lee tomorrow just lost all significance.

The main adjective to be applied to Tyler’s cross exam is: loud. Quite the yeller is he. Cuts Choppa off. Once. Twice. Object. Judge tells him to knock it off. Thrice. She tells him the next time it will be an admonishment. Clock strikes four. Choppa will return tomorrow.

Spend half an hour on jury instructions. Walk to the urine garage with Andrew and Jesica. They drop me off. Open the front door just in time to see the outline of the Olympic mountains. Back lit by a bright red glow. Right before the world turns dark.

Day 37

December5,2018

We have mainly been doing damages this past week. Without the focus on liability the defense lawyers have become delusional. They actually think they have the right to pick on our innocent sweet and adorable plaintiffs. They forget that everything is their clients’ fault. They have forfeited the right to take the high road. Sure maybe the state and city are not as super bad. But the ducks companies...

They roll out their podium. Stand behind it. Yell at our experts. And take petty swipes at the plaintiffs. They make us so mad.

The jury notices my every expression. Hears every time mumble under breath. They are right on top of me. Inches away most of the time. No matter how hard am trying to maintain calm yoga like façade there is no way they aren’t catching my irritation.

Have given this some thought and decide not to pretend am serene totally in control plaintiff counsel. Today is filled with bumps. Perfect opportunity to be real.

Go to lunch with Andrew for the first time in over a month as usually just stay in courtroom. We are discussing how well Tony Choppa just did in cross after a big boo boo that we created.

We asked him to do 40 life care plans but only 8 of them would be going to Christina Tapia the economist. The rest were for those who did not have major physical injuries. They were limited to mental health recommendations by Dr. Olson. We decided to just add up the numbers ourselves. Hence the boo boo. We added in interpreter costs which Choppa had put in parenthesis (if needed). So they shouldn’t have been put in. $150 per hour. Tyler is yelling all over the place about this for over half an hour and won’t give it a rest. Point was scored but then he had to roll in it so excessively that he lost the jury’s interest. Then he pulls a few paragraphs out of miscellaneous life care plans prepared by Choppa. I ask that they be shown to the jury since we can’t tell what he’s talking about. He objects to his own exhibit. Says he doesn’t want to. Judge Shaffer tells him to show it since he’s reading from it and otherwise no one can understand anything.

Patricia Todd walks up to the podium. Takes the microphone and announces herself: Patricia Todd. Assistant. Attorney General. We are now two full months into trial. There can be only two reasons she does this: 1) she is second chair limited to damages issues and has appeared so rarely she wants to remind everyone who she is; and/or 2) she likes the sound of her title. She reads her entire cross outline without deviating. Though her voice is not as loud as Tyler’s she’s employs a fierce jagged tone.

Redirect involves taking full responsibility for the boo boo and showing the new chart where we redid the math correcting it. The defendants all object to the chart. But it is admitted for illustrative purposes to show that the math error can be corrected quite easily. The rest of our time is spent reviewing the life care plan of Ms. Dinh – an exhibit which Tyler had admitted but the defense doesn’t want discussed anymore.

Q. You started to go through some of these life care plans that I didn’t have you go through in detail in the cross-examination, but I’d like you to turn your attention to some of the life care plans. In particular we’ll start off with Ms. Dinh previously shown and allowed as an illustrative exhibit.

Pat: Objection on scope.

Steve: Join

Judge Shaffer: Overruled. We did get into life care plans on cross. Go ahead.

Mr. Hermsen: Object to the scope of the exhibit, your Honor. I only referred to one page in cross-examination.

Judge Shaffer: I realize that. She’s not limited to the page you referred to.

Wink at Andrew and proceed. Oh Choppa is in heaven. For 15 blissful minutes let him go through his 31 page plan item by item. The jury can see the rigor, the deference to the treating physician and forensic doctors involved, each little piece. We don’t go through the 7 other life care plans because the jury gets that they can trust his final numbers without spending two more hours repeating the same process.

Juror questions:

• I understand those treated overseas may not be billed, but the costs of service in the US, are those subject to being billed to them.

• The values in the “reasonable value of past care claimed” did you get those by adding up medical bills or some other way.

• If you don’t give the life care plan to the plaintiff, who keeps and manages the life care plan over the course of a lifetime.

• If a life care plans represented a minimum, maximum or appropriate estimate, does the plan account for future needs or costs that will be revealed later, for example, through a neuropsychiatric evaluation or acupuncture trial.

• With regarding to Toshi Hiraoka, would it be considered “impaired earnings” since he now has somebody helping with surgery and seeing clients in the office.

• You said you did not include Sang Woo Kim’s hand injury in his life care plan “for a specific reason.” Can you please state that reason and explain further.

• Why if you know do future costs for similar recommendations vary so widely.

To put on Choppa this morning we had to bounce a skype doctor. Also Tapia the economist only gets on for 45 minutes. Which is perfect. We get through all the background of how one goes about doing all the numbers. She has her own PPT and is super clear. A good teacher. End prematurely with the chart of the summary of total numbers on the 8 cases she did analysis for based on Choppa’s LCPs. She needs to be rescheduled.

Which brings us back to lunch with Andrew. We are at Columbia Center eating marginal Asian food. Sitting on the padded stairs. He’s remarking about how well Choppa did on cross. Marveling over the lack of juror concern about the math issue.

In trial despite how much we want everything to be perfect that will never happen. Nor should it. If we try to act perfect the jury will not bond with us. We will seem fake. Too slick. So the jury catches me putting my shoes on in the morning. Not being able to find the right cord to connect to the screen. Or asking a dumb question. Each mistake should be seen as an opportunity. It’s not if we are going to screw up. It’s when we screw up how do we respond. My chosen strategy is to quickly and frankly admit the mistake and then deal with it straight on.

After lunch Dr. Lee returns for his cross. Scott has become ill and croaks his way through 45 minutes. It is an awful cross. Part 1 involves showing every single radiology report from the

E.D. on the day of the crash for each of the 4 members of the Kim family. My first objection is overruled. Sit there mum as he wastes 20 minutes of time establishing that there is no acute fracture noted in any of the films for the first 3 family members. Finally can’t take it anymore. Say: objection your honor none of these plaintiffs broke any bones and this is a waste of time. She agrees and tells him to move on. He then puts up the fourth set of films and continues as if she never said anything. Object again and Judge S instructs him in no uncertain terms to stop and move on.

He finishes with an upper cut: Doctor were you aware that your opinions about the need for future care of these four people were so unreliable that the plaintiffs have withdrawn them in this case. Ooh.

Pat asks him if he agrees that he is not qualified to give a diagnosis as to PTSD and he says yes. She then asks if he will withdraw his testimony that it was his opinion on a more probable than not basis that the family members have PTSD and he says no he will not withdraw that opinion.

Tad ambles up there tries to be all friendly and asks the doctor if he has a groupon going on. Dr. Lee looks at him blankly. Says: what’s that. Tad comes back to get his phone cause he wants to show the groupon. But he’s not allowed to ask any more of his silly question.

The defendants think we have given up on Dr. Lee and will slink into a corner. But we did not withdraw Dr. Lee’s opinions. We just told Choppa not to rely on them. Plus – they don’t have the moral right to pick on our clients or damages experts. Time to flex.

BY MS. KOEHLER:

11

Q. Doctor, you have never testified forensically before.

12 Is that correct.

13 A. Correct.

14

Q. And no one is questioning your competency as an amazing 15 medical doctor in this case. Okay.

16

MR. SEDER: Move to strike. It's not a question.

17 THE COURT: Sustained. Please don't comment.

18

MS. KOEHLER: It's a comment, and I stand on my

19 comment.

20 THE COURT: And it's stricken.

21

MR. WAKEFIELD: Objection, your Honor. This kind

22 of --

23 THE COURT: It's stricken.

24 Go ahead.

25 BY MS. KOEHLER:

Dr. Lee does a really great job today. He withstands cross well. His redirect goes splendidly. And the jury questions. Well don’t have time tonight to list them all out. But let’s just say that there were a bunch of them and none were critical. Instead the jurors asked for him to explain more about the injuries and futures of these folks.

We end the day with the parents of HaRam Kim. A 20 year old Korean student killed in the crash. In order to elicit this testimony have to block all thoughts of own children from mind. The second that door is opened will be unable to proceed. My empathy for these lovely people will have me in tears in an instant. The skype connection is slightly rough at the beginning and we lose it at one point. But only briefly. The interpreter is wonderful and the story is told despite Steve Puz’s objections.

Am walking a fine line since the parents have no legal claim for loss of love care or companionship of their daughter which is a barbaric result in a supposedly just and civilized society. You kill our children you kill part of our very being. Will never understand why the legislature cannot get this fixed.

Puz is the designated objector. No chorus is joining in. But they don’t want the testimony to come in that HaRam wanted to become a doctor. Hearsay says Puz. So instead the parents talk about how capable caring talented and delightful she was. A video is shown of her playing the piano at a school concert. She raises her hands in a flourish at the end. The emotion wells up my throat.

After the dad testifies. Judge Shaffer asks the defense if they have any questions. Each one of them walks up and says in their most sorrowful caring voice: Thank you for sharing. The State, City, whatever has no further questions.

After mom testifies say: Your Honor, I would ask if the defendants don’t have questions, that they just say so without making a ceremony out of it. The defendants are sputtering. None of them come up except of course Steve Puz who thanks them for sharing thoughts about their daughter. Just not the thoughts he objected to. Hypocrite.

So there you have it. Am in battle mode. Feisty. The defense is talking about me furiously behind my back. Conversation stops every time I come within distance. There is no doubt they are aggravated. And guess what. That makes me happy.

Day 38

ThursdayDecember6,2018

The drama of this trial is a living breathing 43 person strong collective monster of a plaintiff. Today it is manifested via 21 year old Ayane Sawada from Osaka Japan.

She does not look like she just got off an airplane after 16 hours. Tousled brown hair frames a delicate face. Accompanying her is a Japanese interpreter with straight chin length gray hair topped off with an elegant black wool beret. Judge Shaffer does not ask her to remove it. Ayane wants to speak in English with the interpreter standing by. They are both sworn in.

Ayane gets started. Kevin the court reporter looks at me with a pained expression. I begin to repeat her answers which provides him a little relief. She wants to tell her story in her own voice. And we are going to let her.

She was an 18 year old on the bus. The diagram is up. She shows us where she was sitting. Her eyes become fixated on the board. We watch her turn inward. She wakes up on the floor under a seat. Doesn’t know what has happened. The two people behind her are okay. And then she sees her friend Yuta. She needs to go to him to help. He’s…

Up to this point her voice has been quiet but determined to get through this. Her trigger is her friend. Her eyes fill. She can’t continue. Judge Shaffer kindly tells her to pause. Then sip water. Does she want a break. No she wants to continue.

Kevin’s eyes are wild. She is sobbing and talking with a Kleenex balled up in her fists and held over her mouth. We don’t stop her. But she slows to a stop.

Judge Shaffer asks if we need a short break or a longer one. We decide on two minutes. Debbie, Jesica and the interpreter huddle around Ayane as she walks out of the courtroom. We have only been going for 15 minutes. So the jury stands.

Go outside to see if she’s okay. They are in restroom standing protectively around her. Ayane has come undone.

Go back to courtroom. Announce that we need a long break. Jury is escorted out. Judge Shaffer says that I should bring her one of her cookies because for unknown reasons they sometimes have magical powers. Grab two cookies.

Go back to restroom. Status unchanged. Offer her a cookie and she takes one. They move to the hall. Dr. Olson our next witness is out there. He waves to her. She remembers him. The forensic psychologist she skyped with for hours. But he never saw her like this.

Jury files back in. Ayane retakes the stand. Ask her only two or so little questions wanting to spare her any more sorrow.

Scott stands up to cross her. Even the gesture of it is discordant. Why couldn’t he just leave her alone. He acts kind but we all know he’s trying to minimize her case. Finally he’s done. One jury question: whether the few sessions of counseling she had helped. They did she says. The teachers were able to help her stay in school for the rest of the year instead of leave like she wanted to after the crash. She leaves the courtroom as quietly as she entered.

Dr. Olson resumes the stand. We have 15 more plaintiffs to get through. Resume with the charts. This one up. That one down. Move this over and slice. Cardboard cuts middle finger. Starts to bleed. Grab tissue. Look in purse while Dr. O is explaining. No band aids. Ask Jesica no. Ask Debbie no. Don’t bother to ask Andrew. Ask the other Andrew the Bailiff. No sorry. Move chart over. Put sticky saying “PTSD” next to picture on lineup board. Move next board. Slice. Have now cut the adjacent pointer finger. Ow. Keep going. Stings.

Andrew the Bailiff walks by table. Drops off two band aids. Seriously. There are bailiffs and there are Bailiffs. Band aids are wrapped around fingers while continuing the exam.

By now the jury has become part of the rhythm of this exercise. We are midway through 40 plaintiffs. Corey Allen Prolumina guy has timed us. 12 minutes per plaintiff. The jurors have heard most of the plaintiffs testify. But hearing their stories told from the perspective of a psychologist is different. Some of the clients could hardly speak through their tears. He fills in their blanks. Some of them were so stoical they seemed unaffected. He disabuses us of that impression. His matter of fact explanations of pre-existing vulnerabilities are disarmingly frank as well as fascinating. My partner Keith stopped in the other day and watched us do this dance. He’d never seen anything like it from a psychologist.

Gary Pillersdorf from NYC was the funniest lawyer I’ve ever known. He used to tell a story about two young men who lost their legs due to separate incidents in the subways of New York. The first was a very successful outwardly perfect executive type. The second was an unemployed person who struggled with addiction. Gary tried both cases. And you know which verdict was much larger than the other. The case of the imperfect person.

If Dr. O were to tell the jury that everyone was perfect and their lives were ruined by this crash, there would be little empathy and a lot of suspicion. Sharing the messes of life with the jury sends the message we trust you with our secrets…our shames…our embarrassments. This expression of faith brings the jury closer emotionally. It fosters their desire to help.

4:05 p.m. Jesica Debbie and I are out of there. We leave Andrew to tussle over jury instructions. Uber drops me off. Open door. Nala rushes me. Take her potty. She eats. Gets last antibiotic to ward off tick infection. Throw on running gear. Sun sets. Wrap red light band around left leg. Pull head light over hat. Headphones synced to watch. Pull on gloves. Run up the hill.

Day 39

MondayDecember10,2018

Am in hall. Say hi to Dr. O. Brad my law partner walks by carrying big box. Goes into courtroom next door. Comes out. Didn’t know that hearing was up on 9th. Chat til time for trial.

Ask a few global more probable than not questions of Dr. Olson. Rest.

Tyler crosses him for five minutes more.

JackG takes an hour. Starts off asking Dr. O if he shares Austrian heritage with one of the Derschmidt boys. Dr. O says he shares European heritage. What about ethnicity says Jack. Do you share that. Objection. Offensive. Scowl. His point is that Dr. O did not do a cultural assessment. To prove that Jack acts culturally inappropriately.

Jack pulls out our lineup boards of the headshots names and ages of everyone on the two vehicles which I’ve marked with PTSD sticky notes. He is reading from a list alphabetically saying: did so and so go to treatment. When Dr. O says no. Jack puts up a sticky note saying NO TREATMENT on top of the PTSD notes. Ask him not to do that. He puts them to the side instead. Then because he’s asking open ended questions sometimes the doctor says – he doesn’t know and Jack puts up the sticky anyway. Then I say: that’s not what he said. Then he takes it down. At one point he’s looking really hard for Alena Lutz. Scanning the bus lineup of headshots. Say: Jack she wasn’t on the bus she was on the duck. A third of the way through he runs out of sticky notes plus now the boards look like a mess. So he stops doing that exercise. Keeps the same line of questioning but has abandoned the boards. The boards surround him –our clients’ faces looking out at the jury.

It is a bad idea to use an opponent’s giant illustrative evidence boards unless you have a very specific and limited purpose that is guaranteed to be a good move. Jack is oblivious to the psychological impact of those boards and how they’ve been used by us in the trial. He unwittingly helps us keep the focus of the message right where we want it.

Break. Get up to stretch. Shellie comes into view. Squeal and exchange giant hugs. She is wearing a beautiful fuchsia silk shirt that peaks out from a long black probably cashmere jacket with the flourish of a gray shawl framing her beloved face. Best friend in the whole wide world. What a welcome sight.

Next up is Tricia. She takes the defense podium and rolls it over so that it is almost abutting the jury box. If I reach out my arm I could touch her. Now this is about the third time that she has cross examined Dr. Olson since we started his testimony format differently. She says. Drum roll: For the record, my name’s Patricia Todd. I’m an Assistant Attorney General, and I represent the state. You’d think one of the other two Assistant Attorney Generals who are in the courtroom would have told her to stop doing this by now.

The defense cross is inartful and repetitive. They do score some points: a) he didn’t perform collateral witness interviews; b) if the plaintiffs had been provided their treatment plans they could have been going through therapy by now; and c) $627,000 is a big ole whopping number of a bill.

Jury questions (thanks Debbie for typing these out):

1. How do you avoid empathetic connections with the people you evaluate.

2. Is it more difficult in this case to avoid empathetic connections with the amount of people you evaluated.

3. Explain audio exclusion as it relates to a traumatic event.

4. Any significance to remembering hearing sounds during the crash or not.

5. Re Z – to a reasonable degree of psychological certainty, is it likely that the accident triggered an underlying psychological condition.

6. Re Z – could any psychological issue remain dormant if there was no trigger.

7. What was the basis for not giving the treatment plans to the individuals.

8. How did you account for time reviewing the overall event and not the individual patients.

9. How account for time within 2 digits of precision.

10. Do you hire interpreters; are their hours included in your totals.

11. What is the prognosis for Hutapea.

12. Simon Lee – review his criteria because it may have been captured on the board incorrectly. 13. Assume victim had neuropsychological exam on the day of, could he/she benefit from it a year later.

14. Can things change in terms of neuropsychological exams years later.

15. What additional insight would the cultural formation interview offer if it was done in this case. 16. What relationship is there between the number of criteria meet and which criteria were met and the severity of the experience.

17. How do you identify people as under reporters.

Break for lunch. Hug Shellie goodbye. Take off shoes. Wiggle toes. Scan email. Deal with some of it. Brad checks back in then leaves. Eat paltry hummus pretzel cup lunch. Brush teeth. Return. Courtroom is filling up. Row of folks from the office file in. Mike, Melanie, Lisa, Jeanne, Dan, Brad is here with his boys. Super great to see them.

Call Chris Herschend to the stand. One of his many attorneys escorts him in. President of Ride the Ducks International. Of all the corporate witnesses we deposed he was the strongest. Savvy. Engaged. Talked around every single question. By the end of his trial exam he will have absolutely tanked. In fact his counsel are at this very minute drafting a motion for mistrial due to the door he opened.

Mr. Herschend was born into the wealth of the Herschend family which owned many amusement park types of entities including among them Ride the Ducks. He went to school, obtained an MBA and was placed on the board of the Herschend group. His first job was director of development for Herschend – not a bad gig. After a year doing that he was given the Ride the Ducks arm of the company to run as president. He kept his position on Herschend and is now Vice Chair of that organization. This golden spoon in mouth background is probably to blame for an extraordinary level of self esteem that will be his downfall. Because no matter what happens he truly believes everyone will agree with him as to exactly how amazing he is.

After asking for his name and job title, the very next question will be the first of two bookends:

K3:Do you believe as you sit here today, that Ride the Ducks International is responsible at all for the September 24, 2015, Aurora vehicle crash.

JackS: objection irrelevant as to his opinion. Overruled.

Answer: The answer is no. I’ve thought about that a lot. I don’t think you can be close to a case like this and not think carefully about that. As I’ve talked about it with my kids and my wife and my family over the years since, I’m confident the answer’s no.

He should have left his kids out of it.

The jury does not like this answer. If he had been here for the poorly received testimony of his various managers he would know this.

Have him write his job duties as President on the whiteboard. Safety is number one.

Go through denials he made in deposition. Like the accident was not the result of a defect in the vehicle. Because he’s not agreeing to his own statements, instead of impeaching him with his deposition simply publish it and give it to him to consult. JackS objects. But the witness says he appreciates being given the deposition. Point him to the pages so he can read them and confirm his statements. Am such a sweet and nice plaintiff attorney. Ever helpful. Giving him every chance to do this right.

His position is that Ride the Ducks Seattle is responsible for the crash. One would think RTDS would cross him for throwing them under the bus. But don’t expect them to.

There is a little diddy in the middle of the exam involving the tab fix to the axle housing. It is almost lyrical. His analogy is that the tab acted like a canary in the coal mine for the axle housing.

Q. And would you agree that the canary in the coal mine

12 did not work on August 10, 2013.

13 A. I don't know.

14

Q. Well, because if it was a canary in the coal mine, the 15 canary should have alerted you before there was a 16 canting. Am I correct.

17 A. The best safety systems are redundant safety systems.

18 So canting would be one canary in a coal mine, the tab 19 might be another. I don't know that you would 20 necessarily expect everything to indicate everything 21 each time.

22 Q. If the tab was supposed to fail so that a mechanic 23 could see that and catch it, and that was the canary in 24 the coal mine, the canary was dead by August 2013. Am 25 I right.

1 A. We saw canting, which is another visual indication of a 2 potential problem. That's what -- in the example, the 3 canary was there to let you know of a potential 4 problem.

5 Q. The canary was dead on August 10th, 2013. Correct.

6 MR. SNYDER: Objection. Asked and answered.

7 THE COURT: Overruled.

8 Answer the question, please.

9 A. The question is, was the canary dead.

10 BY MS. KOEHLER:

11 Q. Correct.

12 A. I don't know.

13

Q. Because the fracture had already occurred at the time 14 of canting, correct.

15

A. Again, I don't know exactly what caused the canting at

16 that time, if it should have created a visible tell on

17 the tab or if it -- the canting was a very useful

18 visual tell. I don't know. Again, they both would

19 have been present, if that makes sense.

20 Q. It doesn't make sense, because canting means that the 21 axle has failed. Right.

22 A. I think that's one potential concern when you have 23 canting, yes.

24

Q. That's the biggest concern, right.

25 A. I would think it would be the biggest, yes.

1 Q. And you knew that as president of the company, or you

2 should have known it.

3 A. Yes, I would think that canting and a potential axle

4 problem would be significant. An unexplained axle

5 problem would be significant.

6 Q. And then one of the problems in examining the canary to

7 see if it was gasping for breath before it finally died

8 would be your invention 777 (the rubber boot). Am I right. This is a

9 problem when you're trying to look at the canary in the

10 coal mine. Am I right.

11 A. No. I think the tab was outside of the steering

12 knuckle boot.

13 Q. Really.

14 A. I think.

15

MS. KOEHLER: Well, I'm going to ask for permission

16 to publish it to the jury, your Honor.

17 THE COURT: You've already done that. You're

18 holding it up. [And waving it around back and forth all over]

19 MS. KOEHLER: I do think it helps to feel it.

20 THE COURT: Understood. Go ahead and give it a 21 number.

At which point the jury passes around the big rubber boot. Then Mr. Herschend has to draw his understanding of where the tab is on the axle. But he doesn’t want to. Because he knows he’s wrong. Says: well you gave me a look so I must be wrong. Tell him to draw it. He draws it the way he thinks I know it is.

Q. During the process of looking at the few axle fractures

13 you had in-house in 2003, 2004, and 2013, did you ever

14 consider whether putting this [the rubber boot] over the canary in the 15 coal mine could be a bad idea.

16 A. I'm sorry, did I ever --

17 Q. Did you, Ride the Ducks International, ever consider

18 that putting this over a canary in the coal mine might

19 be a bad idea.

20 A. I don't think we had concerns about the boot and its

21 locations. That the good the boot did to protect the 22 environ in the waterways where we were was significant, 23 and it was something that made a big difference in sort 24 of our overall impact being lighter than it might have 25 otherwise been.

1 So as far as inspection protocol, I mean, the boot 2 is -- it can be slid -- it's difficult to remove

3 without removing the entire axle. But it can be 4 inspected beneath -- my understanding is it can be

5 inspected beneath it.

6 Q. In fact, the tab wasn't a canary in the coal mine. It

7 was just a strengthening fix following the 2003 and

8 2004 incidents. Am I correct.

9 A. I don't believe so. We discussed that already, and I 10 don't believe it --

11

Q. That's why you didn't need to inspect it very often.

12 It could be covered by something like that because it 13 was structural. It wasn't something that you were 14 supposed to monitor every time you looked at that Duck, 15 right.

16 A. I don't know that that's correct or incorrect.

17 Q. You never saw ever, in your whole entire experience at

18 Ride the Ducks International, the mechanics taking that [pointing at boot]

19 off every single day to see if the canary was still 20 alive. You never saw that, right.

21

A. I don't know that I would have seen that, no.

22 Q. And, in fact, your own mechanics didn't know that it 23 was supposed to be a canary in the coal mine. They 24 just assumed it was structural. Am I correct.

25 MR. SNYDER: Objection.

1 THE COURT: Overruled.

2 If you're aware.

3

A. So I don't recall discussing it much. As I testified 4 earlier, it was not a significant feature of the Duck,

5 and we didn't talk about it much.

6 BY MS. KOEHLER:

7 Q. You didn't talk about it at all. Is that correct.

8

A. Yeah, I don't remember discussing the tab much prior to 9 this process following this accident. It was not a 10 significant feature of the vehicle, to my knowledge.

11

Q. Why would you have a canary in the coal mine if you 12 weren't going to monitor it or tell anybody to monitor 13 it.

14

A. Well, I think it's -- you have to ask Bob McDowell. I 15 think he was the person who developed it. He may have

16 had his reasons that were well-communicated. We talked

17 about some of the -- some of the decisions and the way 18 the business decisions were communicated prior to what 19 I call the professionalization of the business. So it 20 didn't come up much.

As you can see by now am not going to get into the specifics of the line of questioning that leads to the witness opening the door. Let’s just say that on the white board list 11 federal statutory and rule violations that were committed by Ride the Ducks International. And that as a result of his … responses… Judge Shaffer rules in sidebar that he has opened the door. JackS huffs and puffs to no avail. The NHTSA consent order is allowed to be introduced. Then walks into the middle of the courtroom.

It is then time for our other bookend. And here are my thoughts on how to frame it.

Could do it cross exam style. Leading. Stick to the script. But that won’t be impactful enough. Forcing him to say words is not enough. That’s just a slick bully lawyer tactic. Instead want to communicate a deeper message: RTDI’s arrogance born of misplaced righteousness. He cannot stand the thought of admitting failure or weakness to the people in the courtroom. He will disregard the instructions of his own attorneys in order to preserve his appearance of superiority. Regardless of what laws or standards or facts are involved – he is right and that is all that matters to him. This is how it ends.

Q. So now that we have spent some time together, I want to 14 ask you the question I asked you at the very beginning. 15 And that is, in your opinion, does Ride the Ducks 16 International have any responsibility for the 17 September 24th, 2015, fatal, severe injury, 18 multi-casualty incident on the Aurora Bridge. 19 MR. SNYDER: Objection.

20 THE COURT: Overruled.

21 A. So I'd give you the same answer again. No. I feel 22 like our communication about the concerns and the 23 improvements we suggested have all done their job, had 24 they been...

25 BY MS. KOEHLER: 7673

1 Q. The fact that you broke these laws is just an 2 incidental coincidence. Is that right.

3 MR. SNYDER: Objection.

4 THE COURT: Overruled.

5 A. I don't know that I'd use the word "incidental 6 coincidence." When NHTSA called us and notified us 7 that they'd like us to work with their system, like we

8 worked with the other federal agencies, we said 9 absolutely. And we began working with them pretty 10 productively right away.

11

Then they walked us through their process, and we 12 began to use their terminology for our processes, and 13 it's been -- we don't interact with them much because 14 we don't have many issues, certainly none that I can 15 recall since this. But I'm happy to do it.

16 BY MS. KOEHLER:

17 Q. Mr. Herschend, if breaking these laws and this accident 18 are not enough to convince you that Ride the Ducks 19 International has some responsibility here, what would 20 be enough.

21

MR. SNYDER: Objection, your Honor.

22 THE COURT: Overruled.

23 A. I don't know that I can answer that. The spirit of all 24 these laws is communication. That's the point. We 25 were in regular communication. There can be no 7674

1 question that we were frequently talking with these 2 folks, that we proposed the remedy.

3 So like I said at the beginning, it would be very 4 strange to be close to an accident like this and not 5 really do soul searching into how if anything could

6 have been done to prevent it. And I'm confident that

7 our team communicated early, plainly, gave a very good

8 remedy, followed up, overcommunicated, followed up.

9 And we really thought that our team here was a great 10 shop with good mechanics, people that knew what they 11 were doing. We'd had a long successful history with 12 them. So I don't know what I would have done 13 differently.

14 BY MS. KOEHLER:

15 Q. So is the answer that there is nothing -- there is 16 nothing else that would possibly convince you that you 17 bear any responsibility for this in light of this 18 accident and these set of statutory violations.

19 MR. SNYDER: Objection, your Honor.

20 THE COURT: Overruled.

21 BY MS. KOEHLER:

22 Q. Is there nothing else. Yes or no.

23 A. No, ma'am.

24 MS. KOEHLER: No further questions.

Jack S performs redirect for not quite 10 minutes. He barely tries to rehabilitate his President. Then Ride the Ducks Seattle, State of Washington and City of Seattle pass. Making it even more apparent to the jury that they are now acting in cahoots with one another. It is 4:00. We will do jury questions tomorrow.

Day 40

TuesdayDecember11,2018

Click on uberX. They want $35 to go to the courthouse. It’s usually ten bucks. Select is $24. Go with them. Hit button. Will be here in 11 minutes. 5 minutes later will now be here in 12. Cancel. Hit button again. Will be here in 10 minutes. Okay. Blip. Uber cancels me. This goes on for another 5 minutes until finally get an uber which will get here in 10. Should never have hit that first cancel. Get to courthouse with 9 minutes to spare. Thru security and tunnel. Have no choice but to use the elevator. Arrive with a few minutes to spare. Say hi to Dr. Becker in the hall. Walk into the courtroom. Set up. Judge arrives. Says: we have a late juror.

Am in a black suit with white piping. Bland and not my favorite. But Pat. She is decked out in a white and black graphic print knit jacket which though immaculately tailored is ruffled at the hem, slightly flared sleeves and collar line. Covet it.

We wait but then it turns into: we have a sick juror. #7 again. The same one sick right before Thanksgiving when we stopped half a day early so he could get well. Judge suggests we let him go. There is something wrong he has been really struggling. Don’t want this to happen. JackS gets up and strenuously objects. Fascinating. Since when do the defendants want to keep jurors. They must think he’s good for them. He’s been struggling to stay focused these past few days. Have seen him standing up moving around and yawning. Have not taken any of it personally. Felt there was something going on with him physically. The other defendants all join JackS and argue against letting him go. Judge Shaffer patiently calls Andrew the Bailiff. For the next fifteen minutes deals with the objections. Ultimately asks the nauseous vomiting plaintiff over the phone via Andrew the Bailiff what he wants to do. #7 reluctantly feels he needs to be excused. She lets him go over the defendants’ objections. He asks if he can discuss the case. She says no. We are down to 2 alternates.

Half an hour behind schedule. Chris Herschend retakes the stand. We walk back into chambers for the jury questions. Return. Type out some of them as Judge Shafer reads them. Highlight three that will followup with. Here are my notes:

• Who had primary responsibility for passenger safety and what specific qualifications did he have for roadway safety and compliance with regulatory agencies.

• Did RTDI have a complete list of regulations that they needed to comply with.

• Did that include NHTSA.

• Did RTDI have a compliance matrix that indicated how each regulation would be complied with in terms of concrete statements.

• What is the attraction of Baird mountain. Approximately how high is it.

• When duck 14 lost control of the front wheel did you consider how that event could have been different had that occurred earlier in the descent. WHAT WERE THE WHAT IFS.

• Is your name on the boot patent.

• Did NHTSA indicate to you that the fix in Ex. 73 was not a suitable remedy. HIRED EE who CONFIRMED IT WAS SUITABLE BUT NEEDED TO BE IMPROVED. Re bevel

• Did NHTSA indicate to you why they recommended removal of collar. HE FORGOT THE MAGNA PARTICLE TESTING PART.

• Who was…accountable for the duck 6 accident.

• What was the method of confirming compliance with service bulletin. What was the person’s responsibility.

• Was there any different standard to verify completion based on the seriousness of the service bulletin.

• Do you believe RTDI is relieved of all responsibility for the duck 6 accident because the service bulletin was put out re the collar fix. He’s crying.

• Says: The work of plainly communicating is the most important function of business.

That’s right. He stops talking. Face is red. Judge S tells him to take his time. Could care less as he tries to gather himself and stop crying. He has been pleasant and tried to be friendly when court is on break. But have kept separate and distant. Have no desire to recognize his humanity. Watch him dispassionately. Clinically. Good. You should cry. You should have been crying this whole time.

He gets a grip. Still can’t help himself. Talks around the jury’s questions. Judge Shaffer has to prod him to answer the questions several times. End by challenging him on his statement that communication is the most important function of business. Isn’t following the law more important. He says yes. But then can’t resist equivocating.

Dr. Ted Becker is a PhD physical performance/capacity expert. Prepared for his direct by doing. Well by doing nothing. Because he didn’t get us the pages of his report that he wanted to include in his PPT until just before he testified. Melanie put the PPTs together. Took the thumb drive from Jesica and stuck everything on my computer. Had already read his report and covered him in deposition so we were good to go. The first plaintiff takes about 40 minutes. He is explaining who he is, the process and steps of his evaluation, and going through the photos, measurements, numbers and analysis. It is great. But it is too long. So we agree to speed things up for the other 5 plaintiffs he has evaluated. My favorite parts of his testimony are when he sums up in a sentence or two the essence of what is going on. For the first plaintiff who was 20 at the time he saw her, he says: she has the back of an 80 year old. His math and all the details were super important. But what the jury will remember is that one statement.

We interrupt his testimony after #5 because Dr. Luna the economist from California needs to catch a plane. Dr. Becker will return Thursday for his last and worst of course plaintiff and to be crossed.

Dr. Luna is PhD mathematical economic expert chosen by one of our co-counsel whom have never met before. Harvard. 40 years of experience. Sharp as a tac. And talks at the speed of lightning. Am all for going quickly. But then there is Dr. Luna. We go through her report which

is projected as it involves all the math and calculations. She explains things but so quickly have no idea really what she just said. But she is emphatic and correct and that’s all that matters. Scott cross exams her – picking at the life expectations of the mother. It is all so callous and impersonal. Jack goes next and picks some more. They make me so mad. The city and state pass.

Judge Shaffer: any more questions from the plaintiff.

Stand up. Take microphone from the stand on the clerk’s bench. Step back and say: Dr. Luna why can’t you just ask the plaintiff what she would have done. Within a nano second she belts out: because she’s dead. A chorus of objections fills the courtroom. Judge Shaffer says: sustained. But they’re too late.

The jury has questions. Judge Shaffer has us pull out the whiteboard and instructs Dr. Luna to slow down. Slower. Slower. It doesn’t help. Dr. L has one speed and that is fast.

Day 41

WednesdayDecember12,2018

Am sitting one row behind regular chair. Slightly more casual than normal. Cream and black silk keyhole sleeveless shirt over black velvet jeans tucked into knee high chunky heal boots and an intentionally fraying shrunken black Walter jacket. The sleeves stop above watch. Arm is decked out with black beaded bracelet with silver heart as well as a silver birthstone bead bracelet Shellie gave me maybe 15 or 20 years ago. The bracelet spells out each of my daughter’s names and includes their birthstone colors.

Jesica and Ryan are monitoring the computer set up. Clearest connection we’ve had so far. Andrew is conducting another skype doctor direct. They proceed nicely. The defendants object as she verifies the bills. Pat tries to show that the 53 year old had pre-existing degenerative joint disease of the back. Not only has the jury already learned about the concept of aggravation of pre-existing conditions, but the doctor confirms this reality upon redirect.

Ryan packs everything up. Resume the floor. Our second to the last plaintiff takes the stand. The 23 year old recent UW biology graduate tells his story without elaboration or an interpreter. The duck rocked back and forth. He closed his eyes. When he opened them he was on the floor of the bus. Could not immediately see his family. Then found them. Describes the nightmares that still wake him up 3 or 4 times a week. Fear of buses. Social isolation. Continuing back pain. Scott crosses him for skiing in Vancouver BC and going to Cancun. Jack publishes his deposition. Attacks him for saying his back pain was better after seeing a chiropractor yet now he says the pain is still present.

Should have gone to the movies last night. Trading Places with Eddie Murphy and Dan Aykroyd was playing at Cinerama. Could have had chocolate popcorn. Instead worked with team on

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briefs and prepared for today. Ran on the treadmill for half an hour starting a little after 11:30 pm. Because finished after 12 am apple watch counted it as exercise for the next day. Should have run longer. Not enough de-escalation processing occurred.

Watching Scott and Jack tear into this sad young man makes me boiling mad. Jack finishes. Is strutting back to his seat. Glare as he walks behind my chair. My mouth doesn’t behave and says with a sneer: you should be really proud.

Jury questions are as always caring but include why he said he was okay after seeing the chiropractor if he wasn’t. No followup questions from me. Scott Jack and Vanessa tag team him: you’ve been here for how long, your courses in English, you know English. They are so fierce in accusing him of being a liar without actually coming out and saying so to his face.

Yesterday the President of RTDI was on the stand trying to sidestep his company’s violation of 11 federal laws. He blamed RTDS for causing the crash. Accepted no responsibility. Where were all the ferocious defense cross examinations then. Cowards. Bullies. All of them.

We are in the last few days of our case and have bits and pieces to take care of. Finish the deposition we started yesterday. Andrew finishes the state witness we started two weeks ago. Play a city deposition. And get most of the way through one more city witness that Andrew handles. Tad is doing his cross but can’t stop leading the witness. And then wants to go beyond the scope. Judge tells him to decide if he wants to proceed with direct. Tad decides he does. This is Tad’s best performance so far in the trial. His jokester act is so consistent that the jury has decided it’s just his way. They like him and laugh with him. Can’t be worried or mad about this. He is funny and likeable. That doesn’t mean he’s going to win though.

We break in the middle of Tad’s direct of the witness Andrew called in direct. Jury files out. Judge asks what motions are pending. We tell her two more have just been filed on top of the other handful that Lisa, Garth, Andrew have been briefing madly. She wants to know what they are about. She wants to hear from the moving party. Steve Puz stands up. And well. You know how when Bruce Banner gets angry he becomes entirely huge and green and starts swinging. Well there is a beast in me that Puz just absolutely triggers every time he opens his mouth.

THE COURT: Okay. Well, since she's (economist) testifying 9 tomorrow morning, folks, unless some miracle happens 10 and these are fully briefed motions, I don't see how 11 I'm going to get them read. Does anyone want to talk 12 about your motions.

13 MS. KOEHLER: No. I don't want them talked about 14 until they're briefed.

15

MR. PUZ: Well, she's not --

16 THE COURT: They're not your motions. They're their 17 motions. So let me see if somebody's filed a motion,

18 which I am now telling them will not get read before --

19

20

21

MS. KOEHLER: Well, let me --

MR. PUZ: No. They're our motions, Karen.

MS. KOEHLER: Let me say -- let me say that there 22 are two obnoxious motions filed to exclude the 23 testimony.

24

25

1

MR. PUZ: Oh, my God.

THE COURT: Stop, you two.

MS. KOEHLER: And one of them is related to the

2 wrongful death claim. The parents, as you know, the

3 hearsay objection --

4

5

6

MR. PUZ: Excuse me, but maybe we can --

MS. KOEHLER: -- and the other --

MR. PUZ: -- introduce our own motions, your Honor.

7 THE COURT: Stop. Stop, both of you.

8 Ms. Koehler, really stop. Put the microphone away.

9

MS. KOEHLER: All right. But I will --

10 (Multiple parties speaking at once.)

11

12

THE COURT: No. Take the microphone away.

MS. KOEHLER: Well, he's so obnoxious.

13 THE COURT: Don't do that. You folks still have 14 quite a bit of trial to do together. Really, things 15 are degenerating, not getting better, which does not 16 make me happy. I have a lot of respect for both of 17 you, so don't --

18

MS. KOEHLER: We've always been like that, but we 19 get along fine when we're not in court. We don't 20 squabble unless we're in front of you.

21 THE COURT: Well, try not to squabble when you are 22 in front of me. Both of you. No, seriously. You

23 interrupt each other, you call each other names. I

24 hear you, and I think, you think this is going to 25 impress me. Of course not. What it does is it chips

1 away at my very high esteem for both of you. So please

2 stop. Stay in my good graces, all right.

And so Puz and I back down. Until the next time.

Day 42

ThursdayDecember13,2018

Bandy the City’s witness is still on the stand from yesterday when Tad decided to go into direct in the middle of his cross. Bandy is the best of the governmental witnesses. He worked for WSDOT until three weeks before this crash when he switched to SDOT. The City and State are jostling to try to prevent a situation where they are attacking each other. Unfortunately for them we already got them on video depositions doing so (putting in a median barrier would be the state’s duty; no putting in a median barrier would be the city’s responsibility). But they are still trying to be friends-ish. Puz goes next and converts Bandy into his own witness. They are trying to prove the mutual point that the bridge wasn’t unreasonably dangerous for ordinary travel. As decent as Bandy is as a witness the more the attorneys use him to prove their points the more he looks like a bureaucratic mouthpiece. Puz is “crossing” him and leading him by the nose through the key documents they both want in.

This all drags on until the 10:30 break when I tell the court that our economist has been sitting outside for an hour. Judge Shaffer agrees Bandy can go back to his office across street and come back later

Jury returns. Tapia the economist resumes the stand which she departed from last week. We are following her report via PPT but the whiteboard is up. Putting on economists can be a rote exercise. Some would say boring but necessary. They know more math than we do. So we tend to let them plow through the dry calculations. But our jury has engineers on it. This means they know how to do math. Ask Dr. Tapia – how long is average work life expectancy for Phuong. Answer 35 years once she enters the workforce at 22. So she would be 57. Look at the jury and say: apparently I should have retired last year. Want them to think about averages and what they mean. There’s no law that says they are bound to accept the average. Same for care needs for Sandra. Used average life expectancy of 34 more years which would take her to age 80 according to the CDC tables. But what if she lives to 85 like the age my dad is. Ask her to write out the formula for how to reduce to present value. She is talking about to the somethingth power when out of corner of eye see juror begin to make rapid little movements with hand. Think maybe he’s using a calculator. Make instant decision. Call for sidebar.

Advise judge a juror is using probably a calculator app. Is that okay. The other lawyers aren’t so quick on the uptake. At first they are looking like – oh well yeah that makes sense. Judge S is saying well that’s understandable. And we are all smiling and nodding. Then Scott starts scowling. Says well no we shouldn’t allow that. Then another wakes up smells the coffee and gets on Scott’s side. We go back out. Judge S tells the jurors that they can’t use their phones as calculators or for any other purpose. They all know I’m the one who tattled. Frankly isn’t it awesome to know that the jury is so in interested and in tune that they are following the math to such a technical degree. But can’t have RTDI filing another mistrial motion and so want to keep everything super clean. This turns out to be good because JackG says he watches the jury and hadn’t seen anyone using calculator app so it must have just started.

It’s noon. We are nowhere near done. Have another witness who didn’t finished and is scheduled after lunch and then a skype witness and Tapia would be on for half an hour then would still need to return. So we agree to call her back next week. Although it is a bit disjointed, it’s not a bad thing to split up the economist who is testifying about 6 plaintiffs.

At 1:30 Dr. Becker the physical capacity expert returns. He had gotten through 5 of his 6 plaintiffs and returns to finish Phuong. Just like with Yuta supplement his report with the preincident activity photos of Phuong. He’s able to show us that she had 150 degrees flexion of the knees here. And look how everything is aligned there.

Scott is the first to cross and is awful. First he insults Dr. B whom he called Mr. Becker all through Tony Choppa’s life care plan testimony. You’re not a medical doctor are you. You can’t diagnose medical conditions can you. You aren’t licensed as a medical doctor are you. Well no duh. Then he challenges the physical capacity of all five plaintiffs which makes no sense since three of them were just kids. Would it change your opinion if Mazda went hiking. Would it change your opinion if Yuta moved to California (what did he carry his belongings on his back and walk the whole way). Would it change your opinion if Phuong is going to school. In fact they are all attending school. Won’t that change your opinion. He should have left them alone. Goes after cute little Fenna: couldn’t she work part time as a care giver. Uh. How is she supposed to lift people and do any physical labor when she walks with a cane. Goes after Joanne: she’s working now. Leaving out the part time part of it. And of course attacks Rhonda their number one target. It is long and nasty and no one likes it.

It is break time and we have to ask Dr. Becker now to wait. Jesica sets up gotomeeting with Korea. The defense brought a motion to dismiss Tapia’s economic analysis because I gave her the assumption that HaRa Kim age 20 wanted to be a doctor before she was killed. When we examined her parents the defense hearsay objections were sustained. We danced all around the topic and got in what we felt was sufficient information. Judge denied their motion to strike. But to ensure a completely clean case without potential future appellate issues, ask permission to recall Pastor Kim the dad. Jesica secures an interpreter who arrives right on time. Dad is on the screen. Ask one question: what was your understanding of your daughter’s career of choice. Answer: she wanted to be a doctor. No objections. No questions. There are two jury questions: a) what was his name; and b) I would really like to be able to use the spell check feature on my phone for when I write down questions because I spell poorly. Judge Shaffer laughs delightedly.

Go back into the courtroom. Judge Shaffer thanks him. Hang up.

We are in the middle of a ping pong ball style parade of witnesses who have testified before finished or not quite finished and who will not quite finish.

Return to Dr. Becker. Pat’s up. Focuses on Rhonda and does a really good cross. Uses a work product chart that we’ve never seen and the judge allows in summarizing Rhonda’s past injuries and use of pain rx. This is pretty darned effective because there are lots of appointments. Pat doesn’t bother attacking anyone else. Scores points. But cannot escape the fact that it doesn’t totally matter what happened to Rhonda previously in the arms or ankle or a few ribs. She had a total hip replacement after this crash. Becker holds his own through it all. He is just superb.

Redirect involves some punching back. Judge Shaffer has grown a bit weary of my theatrics. Pull up Mazda’s giant board. If she goes for a hike does that mean that she isn’t mechanically limited. Pull up Yuta’s giant board. If he moved to California and goes to school does that

mean he isn’t mechanically limited. Go through each of them in 30 seconds in this fashion. We actually get through jury questions and finish Dr. Becker before the clock strikes 4.

Jury files out. We are now supposed to begin working on jury instructions. But Judge Shaffer gives us a pass. Tells us we all need to rest this weekend so that we can behave more nicely to one another. She’s tired of the sniping.

Day 43

MondayDecember17,2018

Bargain with the clock. 7:10. 5 more.10 more. Until it is 7:35. Yank on tan khaki ankle trousers that match the color of silk leopard print with black contrast swirls of a shirt. Favorite boss black jacket. Saks black scalloped flats with similarly scalloped ankle strap. Face hair and teeth are ready in 12 minutes. Take out Nala. Feed Nala. Hit uber app. Pack 2 tangerines, cheese, crackers, luna bar. Say bye to Nala. And bam. Out the door.

Traffic is not hideous. Do not beep in security. Walk through tunnel. Bang out 9 flights of stairs. Arrive at 8:40. Backwards calculate probably could have stayed under covers at least another 5 minutes.

Count the defense lawyers and paralegals. 18 today. The jury consultants haven’t been here for a couple weeks now. Fired probably.

Need to finish Mark Bandy the City’s roadway guy. He can’t answer any question without going on and on and on. Doesn’t matter if it is Andrew, Steve, or even his own lawyer Tad. When everyone’s finished examining him we go back into chambers to review jury questions. Quite a pile. Judge Shaffer does not ask several. Including my favorite: Assume that the city builds a park. On one side there is a cliff. There have never been accidents involving people falling off. Does that mean that the city does not need to erect a barrier.

Judge Shaffer begins to ask the jury questions. Bandy talks up over and around all of them. Several times the questions are repeated so that he can answer them. All he proves is that he cannot give a straight answer. Every so often he smiles or tries to get a chuckle out of the jury. They give him nothing.

It is 11:20. Offered to play a deposition but JackS says we should go ahead and put on Robby Hultz who has been standing by. He is managing partner in Branson and appearing by skype. Ryan and Jesica have it all set up and the connection is perfect. Hultz is in his office. Sitting in front of a white wall. Slightly yellowish lighting. With the computer cam pointing up his nose. Whisper to Andrew: looks like he’s in jail.

Start off impeaching him. But two sidebars convince me to back off. His former testimony is now moot because he has to admit violation of the NHTSA consent order. Jesica uses gotomeeting so the documents can be viewed at the same time as the witness and the witness can see the documents as well. Impeach him on a few other things. Deposition transcript right next to his upcamera’ed face.

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Break for lunch. Scrambling going on. Next witness is an orthopedic surgeon who agreed Friday to testify at the last minute. Because the defense was trying to exclude part of Choppa’s life care plan. Dr. Chakravarty is in Wisconsin. Jesica pulls together a PPT. Andrew preps him. Jury comes back in. Barely qualify him. Don’t even ask what medical school he went to. Scott starts objecting to lack of foundation. Have to go backwards and let him tell us he’s an orthopedic surgeon who’s fellowship was in hip and ankle prosthetics. Jesica puts up the 3D imaging of the hip showing the large bone fragment that broke off during impact. He testifies it was caused by trauma. Scott objects. Have to lay more foundation. Show the colorized xray of the hip replacement. Ask the more probable than not questions. Scott fights everything just in case he might somehow win. But he doesn’t. Jury has no questions which is a miracle. Dr. Ch is off the stage in 20 minutes start to finish. Bravo team.

The second we click him off Jesica and Ryan need to get Hultz back on.

Two weeks ago decided to buy a vertical bookshelf. Looks like a spine. When you stack the books on it the shelving disappears. Found one at container store for $200. Amazon had one for $80. Clicked buy now. Few days later it showed up at office. Forgot about until the weekend when came in and there it was. Brought it home. Opened it. There was no bookshelf in there. Just pieces of metal. Screws in a little baggy. Was stunned. Took the pieces out. Laid them on dining room table. Where they stayed until yesterday. Nala and I went for a run. Michael came over. Put it together. Returned in time to see it completely finished.

Cristina has for years said that I wish things to be and assume that it will all happen. This is what occurs in trial. Want this and that and this and that. It all gets done. Not because of me. But because our incredible team handles all the details needed for my assumptions to come true.

Hultz is back on within 30 seconds. The camera angle is even worse. First thought that comes to mind is: good thing he doesn’t have snot in his nose.

We had decided not to call Hultz a few weeks ago. Seemed redundant. We were wanting to hurry. But last week the defendants were mean to one of our young plaintiffs. Openly sometimes snidely attacked the damage experts. Emboldened to do so most likely by the rising panic in their own minds. We decide to swat them one more time.

Hultz is a disaster. Just as bad as Herschend. Maybe worse. Last question on direct:

Q. Mr. Hulz, as managing partner, can you tell us, does 9 Ride The Ducks International take responsibility for 10 its role in contributing to the cause of the 11 September 24, 2015, Aurora bridge incident in Seattle, 12 Washington.

13 A. Though it's tragic, I don't believe Ride the Ducks 14 International has any responsibility for that accident.

15 MS. KOEHLER: Thank you. I have no further 16 questions.

JackS passes. Can you imagine asking no questions. Not a single one of your own witness. Managing Partner of RTD International. No attempt to rehabilitate. Nothing. RTD Seattle asks no questions because they are in cahoots. Steve Puz breaks ranks and goes after him. This is not a surprise because the 45 minutes of jury questions asked of Bandy that morning were none too favorable to the governmental entities. Steve wants to pound home the point that the cause of this disaster were solely the actions of the ducks.

Jury questions:

1. You described the wheel failure on Stretch Duck 14 as though it was just a mechanical breakdown. Was control of that failed wheel lost during that tour.

2. Did you consider what the outcome of that SD 14 wheel housing failure could have been if it occurred during a different location on that tour.

3. If the housing had failed in a situation that you would characterize as a catastrophic failure, would that change the root cause of the failure in any way.

4. When coming up with the remedy in the service bulletin, wasn’t the axle housing functional before and after the collar fix.

5. If so, wouldn’t a subsequent road test only indicate the fix had not introduced a new problem.

6. Can you explain what the road test would prove or demonstrate.

7. Why would you say each location had to do their own work when RTDI sent reinforced axles out to each location. Please explain.

Last witness of the day is Jay Hiett. Fleet manager for RTD International. JackG took this deposition and didn’t videotape it. This means it will be read. Judge Shaffer groans. Says: this will be boring. No one disagrees. Jack should have videotaped it. But that’s okay. Because for the past few weeks Melanie and Fred our law student intern have been waiting for their moment of glory. The time has come. Melanie plays Jack. Fred plays Hiett. They are fresh and delightful. An hour later… they are still not done. There is probably a good hour left to read. The wonderful jury has barely shed a yawn. They have given their full attention. Written notes. Stayed awake.

Judge Shaffer calls it a day at 4:00. Walk to urine garage. Andrew ubers Melanie, Ryan, Jesica, and I back to our destinations of choice.

Day 44

TuesdayDecember18,2018

Ask the two defense lawyers sitting directly behind Jesica if they would be so kind as to move over so that our attorneys visiting today can sit on our side. It’s not like the courtroom isn’t absolutely gigantic. But they park in our teeny ever shrinking corner. One moves over no

problem. The other says he wants to sit on the edge. Point to the other end of the row about 30 feet down the aisle. He moves.

Call a huddle. Andrew, Jesica, Debbie, Melanie, Fred and I are over by the cabinet near the edge of the jury box. In a circle. Heads bowed inward to each other. Say: We started this trial on October 1. Began testimony on October 16. This team and cocounsel have brought in 40 plaintiffs from around the world, arranged their air fare, hotel accommodations. We have trucked in countless liability and damage experts both local and from around the country. Called eye witnesses, party witnesses, the medical examiners, treating physicians. We used gotomeeting to remote in witnesses. Called most of the fact witnesses who worked for the defendants. We dealt with four defendants engaging in cross exam that ranged from being none to longer than direct. Yet there was not one single moment that we were left without a witness. Not once did we ask to be excused early or to start late. We cheer Jesica who has led this effort with Debbie and others’ help. Then just before Judge Shaffer walks in we hi five each other. And return to our seats.

Melanie and Fred finish reading Jay Hiett’s deposition. It takes an hour. Bless our jurors. They diligently are watching, note taking, and not yawning.

Dr. Tapia resumes the stand. We get through her direct. Then Scott lights into her. This is going to be what the rest of the case is like. They are going to pick apart everything and try to act like we are the bad guys. Their themes include: foreign countries don’t charge for medical care; if you rely on Choppa and he’s wrong you’re wrong; your assumptions are only based on what you were given by plaintiffs; you are overestimating. His cross is loud and tedious because he repeats everything. Jack follows and repeats Scott. Tricia’s turn. Jesica has $5 on the table that Tricia will announce herself. But she doesn’t. We gasp audibly. Stifle our mirth. Tricia tries to repeat what has already been twice repeated. Object. Judge Shaffer sustains. Tells her to move on. She has a long outline. Since she is parked right in front of my face can’t help seeing it. She repeats the next repetitive question. Judge Shaffer tells her to move along, Tricia can’t break away from her outline. It takes a few more objections before Judge Shaffer tells her she is invoking ER 403 and Tricia needs to ask something new. The defense cross takes about an hour and a half. Am aggravated. Can’t quite hide it. The jury questions calm me down. Melanie types them:

• What assumptions, if any, did you make about whether Fenna would have had higher wages in 2015 if she had not been involved in this incident.

• Do you have any information about socialized medicine systems and under what circumstances they provide care.

• How many times have you provided these types of calculations for other legal proceedings.

• Is the way you perform the calculations, the formulas you used, and the resources you used, consistent with the standards in your field.

• In ex. 775, slide 4, what assumptions did you use to predict that the discount present value today will grow into the other value that’s blue on that chart.

• Can the factors that you rely upon to make those predictions change over time.

Aurora Bridge Trial Diary - 125

• In your opinion how well does the CPI consume the medical cost.

• In terms of CDC life expectancy value, do you have any info about what the CDC indicates about how life expectancy can vary. Like the standard deviation.

• To your knowledge, is there any probability or confidence level expected with CDC confidence values.

• If you had information about a particular person that their injuries would likely age them, how, if at all, would that factor into your calculations or how would you account for that.

• Do you have an opinion about the following – if we head into a period of higher inflation, what if any change would we see in the CPI wage growth rate.

• What effect would that have on earning capacity prediction.

• If we head into a period of higher inflation, how will the discount rate change and what effect would that have on present value.

• Do you have any information about the standard range for the type of work that Sonoko was performing in japan.

• Do you have any info about how family owned businesses work in terms of what control they have over profit distribution or salary.

• For plaintiffs that have PRN or one time minimums in their Life Care Plan, is there potential to compute losses to undercompensate.

• Do you know how many plaintiffs this might apply to. This potential undercompensation.

• In trying to estimate compensation for losses in current dollars, which treasury bill would have the greatest safest yield… 1 y, 5 yr or 10 yr T bill rate.

• You used the CPI to calculate the wage growth, is there a specific wage growth index you could have used.

• Is there in fact any existing wage growth index you could have used.

• Assume someone’s total loss was estimated at $10 over 10 years at a $10 discount rate. If $1 was taken out at the end of each year would there be any money left at the end of 10 years due to compound interest.

• Could you calculate a rate of withdrawal and its effects on compound interest.

Dr. Tapia answers the questions. 6 minutes left on the clock.

Plaintiffs call Carol Sue Janes, host mother of Phuong Dinh. She has come to court three times now. This is the first time she will actually get on the stand. She walks up sedately in a dark blue dress with tights and pumps with a strap that goes over the arch. Hair carefully groomed to her shoulders. Turn off computer. There are 5 minutes left on the clock.

Her story begins in December of 2015. She and her husband read a news article about Phuong. They knew of the tragedy. It touched them deeply because in the past they had hosted international students. Decided to pay Phuong a visit. In the spirit of the season. They arrived at the nursing home. Her father greeted them. Phuong was in the bathroom. She needed help from her dad getting into her wheelchair and then back to bed. She was subdued. Her leg was in a

large brace and covered in scars. She gradually thawed. There was a cat on her bed. Phuong interacted sweetly with their daughter. Emailed once. Then in July they received a note – would they be willing to host Phuong. The family thought about it and decided yes they would.

Judge Shaffer ends the day. The witness and jury file out.

Scott stands up and says one of the only two female jurors began to tear up. He wanted to make a record because that’s the first time he’d seen her tear up and she had admitted that she went to law school with the witness though denied she kept in touch or would be compromised. Vanessa gets up and joins. So does Pat. I make a record that when the witness caught her breath so did I. “…this case is full of tears, so one catch should not equal any kind of weird inference.”

I’ve seen several of the jurors have moments. Have heard their sniffles. But the defendants pounce on this one. Judge Shaffer listens and makes her record.

Andrew ubers us home. Nala looks at me expectantly. Put on gear. Lights. Raincoat. Start up the hill. Drizzle is illuminated by headlamp. We have barely gone a block when the rain starts slapping us. The downpour lasts the entirety of the run. Nala is soaked. Her pink fluorescent rain coat has done nothing to protect her. Every inch of me is sodden. Open the door. Towel her off. Get ready for a night of prep with one slight difference. Most of it will be getting ready for cross.

Tomorrow the plaintiffs are going to rest.

Day 45

WednesdayDecember19,2018

For 43 minutes we watch the video of the state’s 30b6 witness McCormick. He says the city has the primary responsibility to install a median barrier if one is needed. The jury is aware this is the prelude to the end of plaintiff’s case. The news cameras are in back. The pews are more full than normal. Our office has come to provide support. Including Paul and Mary Elizabeth Stritmatter which is a special treat. Travis has his two girls and during break Judge Shaffer has them come up to her bench and is incredibly sweet to them.

The second the video ends, announce we will resume with Ms. Janes. She walks back into the courtroom. Sedate, composed and ready to finish her story. With little prompting she calmly shares her concern for and love of Phuong. There are two moments that hit me especially hard.

Ask her how many times over the two years she has been host mom, has she seen Phuong cry. She says three. 1) something had caused her to have to talk about the accident and she came home and just let go, put her head down on the table and was just feeling very sad (at which time Pat objects but the witness immediately corrects herself and says:…expressed sadness). 2) at the

second memorial service at school a man spoke with her. He was the recipient of a donor organ from one of the students who died; and 3) when she got bad news from the doctor.

There’s a quality about Carol that is so lovely. Before I know what’s happening a tear has dropped onto my hand. Walk back to seat. Duck down under table. Pull out tissue. Dab. Get back up there.

The second is that though Phuong is now just 21, Carol says with the shower chair, the crutch, and everything else that Phuong looks like an old person using the tools that an old person uses.

The last area of questioning involves Phuong’s ambition to become a lawyer. Carol is a lawyer. We don’t lead with this but let it come out gently near the end of her exam. The defendants don’t want me to ask this question. But this is how we will end:

A. That's my understanding, that she still wants to move

21 forward with that plan, yes.

22 Q. And what is your career?

23 A. I'm a lawyer. So that was a you know, I was happy

24 to think that I could, you know, share tips for her

25 about possible choices and courses to take for getting

1 ready for that.

2 Q. Do you have concerns for her if she were to try to

3 follow that career path?

4 MS. BUCHANAN: Objection.

5 MR. WAKEFIELD: Objection. Relevance.

6 THE COURT: Sustained. See if you can question her

7 based on her observations.

8 BY MS. KOEHLER:

9 Q. Based on your observations of Ms. Dinh, in your

10 opinion, do you believe understanding you're not

11 predicting the future that this would be a good

12 career choice for her?

13

MR. WAKEFIELD: Objection. Lack of foundation.

14 MR. PUZ: Objection.

15 THE COURT: Let's do this differently.

16 MS. KOEHLER: Let me try it one more time.

17 THE COURT: Yes.

18 BY MS. KOEHLER:

19 Q. As Phuong's host mother and confidante and supporter

20 and guider, if you could have a frank conversation with

21 her, without worrying about hurting her feelings, what

22 would you tell her about her desire to be a lawyer and 23 why?

24 A. I would tell her that I would tell her that it's a 25 really tough a really tough choice to think that 1 that could be a career choice for her based on her 2 energy levels.

3 MS. KOEHLER: Thank you. I have no further 4 questions.

The cross that follows makes us hopping mad. Scott asks her if she knows one of the jurors. Judge Shaffer shuts him down flat. Second he asks her if Phuong was in a school play. He says: what was the name of the play. Carol says: why would you want to know that. Remember she is a lawyer. He tells her to say it. She says: it was a play put on as a fundraiser for a sexual assault victim support center and the play was called the Vagina Monologues.

Next up is Pat. She says: isn’t it the case that you do volunteer work for immigrants, minors and children. The answer is no but she has friends that do. That’s the entirety of Pat’s cross. Andrew and I look at each other. So they are going after the vagina and immigrants now eh.

Judge Shaffer: call your next witness. Phuong Dinh enters the courtroom. The jury has been waiting to meet her. They know she is the worst injured of the international students who survived. She does a beautiful job. Everyone who has come to support the plaintiffs in this case sits spellbound. The aftermath of the crash is made vivid with her simple prose:

And I was saying: I’m hurt, I’m hurt. Please help me. It is so painful. And then I passed out again. Because you know, every time I wake up, it was so painful that I pass out again.

And then there was a man and he says don’t worry I’ll help you. And they put something on me and lifted me and put me on the ground. That’s the second time I woke up.

Q Did you stay awake then.

A No. I passed out again as soon as I got laid on the ground and I keep screaming, I’m so hurt, I’m so painful, and then I pass out again.

She tells her story with shedding a single tear.

Gets through Scott’s idiotic cross. None of the other defendants ask questions. The jury has been silent. Not a single question of either Carol or Phuong. What more is there to say.

Judge Shaffer looks at me.

Am thinking: wish Andrew, Jesica, Debbie, Melanie, Garth, were standing here with me. Along with all of our clients and co-counsel and other members from the firm who have helped us get here. That we could toss glitter up in the air. Click our heels and do a happy dance.

Instead announce: Your honor, the plaintiff rests.

Judge Shaffer says: Ride the Ducks International call your first witness.

And just like that. In less than a nano second our special moment in time is over.

https://www.kiro7.com/news/local/trial-over-ride-the-ducks-crash-underway-inseattle/854188041

Day 46

December20,2018

The defense is too scared to lead off with any type of a liability defense. The terrible performance by their own witnesses was apparently duly noted. Instead their first witness is Dr. Ken Muscatel. A forensic psychologist/neuropsychologist who hasn’t treated patients since the 1990s. Tad started with him yesterday and finishes him up today. This in itself is interesting.

The defendants are now a completely united front to fight the damages case. Over my objection, Judge Shaffer decides that so long as they do not repeat any questions, each of the defendants can have their own direct exam of their jointly retained damage witnesses. Argue against this several times and each time she waves me off.

The first defendant in line to present its case is the now utterly detested Ride the Ducks International. They make a deal and authorize Tad Seder of the City to perform their examination. As you will recall the jury likes Tad because he jokes all the time. Plus the government defendants’ actions are of the incompetent bureaucratic type.

Tad takes Dr. Muscatel through direct. He examined four of the plaintiffs – Mazda Hutapea and three of the Sheldons. He diagnoses them with PTSD. Differs from Dr. Olson with regard to treatment recommendations. He says 4-6 months. Dr. Olson says 2-3 years.

JackG gets to do additional redirect and clean up anything Tad forgot. Then my turn.

Swat at him just a little at the beginning. His hourly rate is $400. He’s spent 1.5 – 2 hours interviewing each plaintiff. Performed less testing and did not review Dr. Olson’s voluminous files. Still managed to charge $33,600. He is bracing for the battle that is sure to come. But that is not what’s going to happen.

Incur Judge Shaffer’s wrath by taking longer than the projected thirty minutes. Spend an hour and a half having Dr. Muscatel tell the jury what a good job Dr. O did and how he agrees with

RTD Aurora Bridge Trial Diary - 130

his assessments. Dr. O’s tests are proper. Dr. O’s use of CAPS is proper. There was no need to do a cultural competency exam.

Affable funny Tad objects constantly. Outside the scope he complains. ER 403. Waste of time. Overruled. When we break he throws his legal pad down on counsel’s table. Whack. Stomps off. In the three years have known Tad have never seen him upset like he is today. Because in the sweetest, most amiable way, I just hijacked his witness.

Q. You've been doing it a long time. And hundreds of 11 cases?

12 A. Thousands of cases.

13 Q. Thousands of cases. [Open eyes wide and look admiringly at the witness as he preens.] Is there any testing that was done

14 by Dr. Olson that was not called for in this case?

15 A. No, I don't think so at all.

Q Does it matter that your tests were not identical to

5 Dr. Olson's tests in terms of both practitioners

6 following the standard of the profession?

7 A. I would say no. I think my testing followed the

8 standard of the profession. I think Dr. Olson's did as 9 well.

Q Were Dr. Olson's tests acceptable to you for 21 the same reasons that you've just enunciated?

22 A. Yes. And I actually looked at Dr. Olson's raw test 23 data, which he kindly sent to me, and everything was 24 scored correctly. So I'm fine with the tests and fine 25 with the score.**

Q Were any of Dr. Olson's protocols

6 inappropriate in this case?

7 A. No.

8 Q. Were they all appropriate?

9 A. They were not inappropriate. Therefore, they were all 10 appropriate.

During break Judge Shaffer scolds me for wasting time. Says: you can do better. Appear repentant on the outside. Inside am totally not. Dr. Muscatel just helped undermine the future efforts of the lineup of other psychs waiting to tear Dr. Olson apart.

Ask Jesica and Debbie to help move the whiteboard out of the main area. The next witness is supposed to be Dr. Bibeault the psychiatrist. Want to use the exhibits have created on the whiteboard for Dr. B’s cross.

Next thing see whiteboard being erased. Raise voice and tell the defense to back off. They are surprised. Am angry. There’s a reason we moved the board over to our side where our exhibits are.

Judge calls us into the back for jury questions. Stomp back. Tell defense not to touch our board. Judge Shaffer says: it’s not your board. Say: yes it is. We bought it. She says in her courtroom no one has their own board. Tell her they erased it without even asking. She tells them to ask in the future. Go through the questions. She opens the door and walks out. Am following her. Behind me jovial Tad spits out: we’ve all been using the f’ing board. Ignore him.

Jury questions:

• What can a neuropsych exam reveal.

• When would multiple neuropsych exams be appropriate if attributed to one incident such as a concussion.

• How do you coax someone into opening their box of traumatic experiences for treatment.

• Are there cultural differences that can make that experience of opening that box of traumatic experiences more difficult.

• How do you overcome resistance to seeking PTSD therapy.

• Do you believe that all the tests conducted were representative given the length of time since the event.

• You mentioned you had limited time in discussions what were your limitations.

• You mentioned a number of pharmaceuticals in particular risperadone could reduce agitation. Did any of the subjects have conditions that this was approved by the FDA for.

• If none of the plaintiffs have the conditions the FDA approved the drug for if not would that be an off label use of risperadone.

• Are you a prescribing doctor

• Were there any areas that you testified about that were outside of your expertise

• Regarding PTSD treatment you said 15-20 sessions are recommended. are there an average number of sessions that would be required for a person who waits 3 years to engage in treatment.

• Is it common for people who suffer from PTSD to wait several years to treat their PTSD.

• Why would a person with PTSD wait and what might prompt them to seek treatment.

• How much does an average neuropsych cost.

• Please explain the process of a neuropsychological exam.

• 4-6 month of weekly treatment what percentage of the population is treated.

• What’s the difference between clinically significant and reasonably complete recovery

• Can you quantify the number of difference between clinically significance and reasonably complete recovery.

• What’s the likelihood resurgence of PTSD down the road that would warrant further treatment.

• Are Dr. Olson’s recommendations unreasonable or outside the acceptable range in the psychological community. Please explain. Lunch.

Bill Partin, CPA is up. Can’t stand him. Melanie subpoenaed his billings. He did not provide them in discovery. He won’t give them to us. Judge Shaffer says: did you bring your billings. He shuffles through his files and can’t find them. She says: call your office right now and have them messengered. Miraculously he finds them. Tad hands them over. Give them to Jesica and ask her to add up how many hours he’s worked on the case. She creates an itemized excel spreadsheet.

Tad has been assigned to perform direct yet again. Partin has a powerpoint. They go on and on until 5 minutes before the end of the day. Am so irritated have to pull my teeth into a smile. For one second think – what if the jury believes this crap. Just as quickly put it out of my mind. Trust this jury.

Ask Partin how many hours did he spend of the 76 total hours incurred on the case. Oh gosh he doesn’t know. Ask him to give us an estimate. Oh no he can’t do that. He wants his bills. Tell him he doesn’t have to be exact just want an estimate. Judge Shaffer says he can have his bills. Tad gives him his bills. Partin pulls out a calculator. Tell him again: it doesn’t need to be exact. Judge Shaffer says: he can take the time to look. Fine with me. Sit back totally still. Watching him. The courtroom is silent. He is bent over the billing papers with a calculator. The clock is ticking. Slowly. Judge Shaffer waits. And waits. Says: Mr. Partin answer the question. Silence. She repeats: Mr. Partin.

Finally the defense economist looks up. And gives us the wrong answer.

Jury is excused. Partin leaves.

Tad stands and tells the court the defendants have learned that I wrote a mean blog about Mr. Partin and how improper that all is. What a punk move.

Tell the Court it involved a wrongful death trial I was involved in two years ago now where he was not allowed to testify that the parents in a wrongful death case involving a young child, were better off financially by their child’s death because now they didn’t have to pay to raise and educate her. https://karenkoehler.com/velvet-hammer-blog/2016/11/30/should-a-toddlers-lifeever-be-worth-nothing

Judge Shaffer benignly smiles down upon us since she already heard reference to this back in chambers when I objected to him inserting a $83,000/year education deduction in HaRam’s net economic loss claim when her parents already testified her family was paying for her education.

Andrew has arrived to argue jury instructions. Jesica packs up. We leave while the group continues to hash out the damages instructions.

Day 47

WednesdayJanuary2,2019

Since December 21, have been living in lululemon and sweats. Today’s skirt is made out of some sort of polyurethane synthetic fabric. Looks like faux leather. But much thinner. Hits midcalf. There is no give. It is so narrow that cannot climb even one stair at a time. The stairwell is empty. Hike up skirt. Hurry up 9 flights.

A couple of the lawyers exchange greetings with me like long lost sort of friends. Others ignore me. Like JackS who last week sent a pouty email when I didn’t respond to AIG’s latest offers. Throw down bag. Pull out computer. Pull off sneakers. Begin to buckle shoes. Judge Shaffer walks in. Stand. Sit. And just like that – it’s as if we never were gone.

Right before Bill Partin CPA returns to the stand Tad Seder hands me a new batch of invoices. This will complicate resuming where we left off. As you will recall Partin did the math wrong. Bumble through it. Ticked off. But when you break for a week and a half the witness is going to get his act together and that’s what happened.

Cross is probably too long. Judge scolds me. But don’t care. Judge also acknowledges part of the fault is Partin’s because he doesn’t want to answer my questions.

Cross covers three general areas.

First, take him through Tony Choppa’s Life Care Plans to explain why he rejected over half of the items. Oh he didn’t reject them he says. He just did the financial calculations for them. He relied upon the life care planners. But since the next witness will be one of them, this helps set the tone for what is to come. It is also another opportunity to show the rigor of Choppa’s LCPs which we didn’t go through item by item during his truncated direct.

Second, have Partin fill out 2 columns of a 6 column chart that demonstrates how a net discount rate can be zero. Because after hearing hours of testimony all over the board, at the end of the day this whole economics thing can be boiled down more simply. Partin then proceeds to do the math with a calculator but incorrectly.

Third, blast him for his pathetic analysis regarding the estate of HaRam Kim – the beautiful inside and out 20 year old who wanted to become a doctor.

Q Now, for Ha Ram Kim's net economic loss to the estate,

18 the amounts that you show for some that are circled for

19 some college female and associate's degree females

20 would be that the estate actually made money by Ha Ram

21 Kim dying in this collision; am I correct?

22 MR. SEDER: Object to the form.

23 THE COURT: Sustained. Rephrase.

Q. What are the lost earnings plus the saved consumption

17 and the saved cost of tuition fees, room and board,

18 what does that equal?

19

A. It would be a negative number, if you added all those 20 up.

21 Q. Please add it up and tell us what that negative number 22 is.

23 A. $60,049.

24 Q. So, in other words, because Ms. Kim is dead, her estate 25 is $60,000 better off?

MR. SEDER: Objection, form.

2 THE COURT: Overruled.

3 MS TODD: Mischaracterizes the evidence.

4 THE COURT: Overruled. Let's repeat the question,

5 because I've overruled both the objections. So, in

6 other words, because Ms. Kim is dead, her estate is

7 60,000 better off, and you said?

8 A. No.

THE COURT: Okay.

10 BY MS. KOEHLER:

11 Q. Because of that calculation, does that mean that Ms. 12 Kim owes the defendants $60,000?

13

MR. WAKEFIELD: Objection, form of the question.

14 MS TODD: Objection.

15 MR. GUTHRIE: Objection.

16 THE COURT: Sustained.

Used to teach trial advocacy with Bill Bailey at the UW. One of the more common concerns of the students was: well if I do that the other side will object. This mentality isn’t just found with law students or new lawyers. The fear of drawing objections will often influence how a lawyer presents a case. Do you think it matters that a gaggle of defense lawyers are objecting and the court is sometimes sustaining them. Let’s see if the jury is offended. Jesica kindly types out their questions:

1. Are 1 year T bills the safest

2. Is there any difference in risk 1 year vs 10 year

3. Are you saying parents of a deceased child should not draw an award for 60 years

4. If you assume a female stays a single without a household why would you assume her rate to be female/ bachelors with entering and exiting workforce

5. Shouldn’t you instead assume female stays single and has a higher rate of earnings and savings

6. Do you know the statistical average of immigrants or foreign students completing a bachelors once started or masters once started?

7. Ha Ram Kim- what her loss rate would be would be if men’s statistic was used and assumed she would not leave work force till average retirement age

8. Can you do same calculation and use men’s average

9. What T bill rate did you use

10. What discount rates are there

11. Why didn’t you calculate loss for Ha Ram Kim for more advanced degree

12. What discount rate did you use for times that fell between T bills

13. When discussing mean values for mean earning why did you use earnings rather than total compensation

14. Hypothetically, if a Life Care Plan indicated an artificial joint replacement or revision what kind of T bill maturity to meet that need

15. What would happen if they needed the artificial joint replacement or revision 3 years early than on LCP

16. Did you assume Ha Ram Kim would be single and live alone indefinitely

17. Are you aware of statistics that she would not remain single

18. If income equality is improving, would it be more accurate to use men’s rate?

19. 40239 – page 32 What would a graph like this look like if Ms. Kim would have succeeded at her plan to become and MD

20. If Ms. Kim have become MD do you believe statistically would have remained single

21. What is your education background, why did you stop at Bachelor’s degree

22. Do you believe your subsequent certifications to be equivalent to Master so or PHD

23. In terms of your approach to statistics are you a frequentist and Bayesian

24. On Kim analysis did you use nation average of education attainment from America Community Survey

25. Is that survey data from America Community Survey publically available

26. Did you bring an electronic devise you can use to look at that data?

27. If the America Community Survey makes distinction for city /state for educational attainment

28. Do you believe that education attainment in Seattle is the same at national average for profession degrees

29. Can you look up percent of Seattle graduate or profession degree

30. Do America Community Survey make distinction on ethnic groups

31. Are Asians higher achievers educationally

32. How this compares with the 9% you referenced for those will attain a masters or above

33. In terms of earnings for given level of education, did your analysis use national average America Community Survey

34. Do those averages America Community Survey indicated they are applicable for Seattle US Census

35. Is the America Community Survey database run by US government or someone else ?

36. Do you lose money if you sell T bill in an emergency

37. Are the formulas and resources you used standard for experts in your field.

Bayesian. Hahahahaha.

The excellent jury questions take about 45 minutes. 10 minutes left before noon. Skilling the vocational supposed life care planner takes the stand. JackG qualifies him and it’s time for lunch. Which Jesica and I work through. JackG continues for another tedious hour with Skilling. At the break the defense interrupts Skilling. Calls Dr. Anne McCormick an orthopedic surgeon. She addresses Gunter Zielinski. Am really not sure why. Don’t cross her much other than pointing out that she worked for Group Health which is hardly impressive. And that she only practices 1 day a week and the rest of the time works for labor and industries and in litigation. Plus challenge her on the whole objective/subjective mantra.

Q. So if a person has a subjective symptom but you cannot

11 objectively qualify it, then do you believe that there

12 is a condition or not?

13 A. There may be or there may not be.

14 Q. So, for example, if I tell you I have a headache right

15 now, do I or don't I?

16 A. I have no idea.

17 Q. That doesn't mean I don't have it. Correct?

18

A. Correct. But it doesn't mean you have it either.

19 Q. I have it.

20 THE COURT: No testifying.

21 MS. KOEHLER: All right.

Overall she is boring and benign. Even the jury doesn’t have any questions.

Skilling gets back up and Jack can’t stop asking leading questions. Every other one. At first just sit there looking bored. Which truly am. Then decide to bat him around a bit. Every objection is sustained. Judge Shaffer tells him to stop so she doesn’t have to admonish him. He can’t help it. This show drones on until about ten minutes before court will end.

Start cross. He knows what’s coming because have done it to him before. And yet still he isn’t prepared. Ask if he agrees that as a vocational expert it is important for him to know what the plaintiff’s physical injuries are. Am pulling out the whiteboard as ask the question. He prevaricates the heck out of the answers to the five versions of this question. Says it’s really not that important for him to know what those physical injuries are for purposes of doing a vocational assessment. Ask him if he can list Ms. Cooley’s injuries. He says he needs his report. Tell him to come down and write out all of her injuries on the whiteboard. As he’s reluctantly walking towards the board the court catches sight of the clock. And calls it a day.

Day 48

ThursdayJanuary3,2019

7:06 alarm goes off

7:30 get out of bed

7:55 walk downstairs. Peplum black and white leopard spotted silk shirt. Short Derek Lam black jacket with bell sleeves. Gap short slacks and fringed booties. It’s raining outside.

7:56 feed Nala. Faster eater in the world

7:56.5 take Nala potty. She dilly dallies a bit more than usual.

7:59 pack lunch

8:03 call uber

8:09 uber arrives.

8:30 walk into courtroom. Buddy Frasier says hi. He will be the only defense lawyer to do so today.

8:50 realize the defense is calling an economist and interrupting my cross of Skilling.

8:51 grumble to Scott Wakefield who walks off.

8:57 Judge enters. Tattle on the defense. She reviews yesterday’s record. Tells them not to do so again.

9:00 Jury enters. Arik VanZandt economist takes the stand.

9:03 Scott qualifies him. BA in economics and other stuff. Begins to ask him about his work.

9:05 K3: permission to voir dire the witness granted.

You have a BA Economics

No Masters

No CPA license

Not a member of the American Institute for CPAs

Not accredited by American Society of Appraisers Business Valuation (just has done course work)

No finance degree

Not a chartered financial analyst

Your one of 100s of managing directors at Alvarez and Marsal.

K3: Your honor I do not believe the witness is qualified to render an expert opinion in this case. Judge Shaffer: the jury can make that decision.

Sit down having gutted the witness in 2 minutes before Scott can do anything about it. But it gets worse.

Scott: you aren’t a medical doctor.

Witness: no

Scott: how do you decide what to include or not when evaluating the life care plans to perform an economic analysis.

Witness: in this case I relied on Dr. Penilton to provide me with information.

Scott: moves to next question not realizing they are going to get creamed.

15 minutes later

RTD Aurora Bridge Trial Diary - 138

K3: You referenced -- so as -- are you an economist or an 8 appraiser? What's the right – [big eyes and a shrug]

9 A. We can say an economist.

10

Q. Okay. So what's the difference between a BA economist 11 and a Ph.D. economist? Are you both -- do we call you 12 both economists? [continue with big eyes and more shrugs]

13 A. If you want to.

14

Q. All right. Well, in your analysis as an economist, you 15 stated with respect to Ms. Cooley that you relied upon

16 Dr. Pendleton to review information so you could decide

17 which of the life care plan items should or should not

18 be allowed. Do you remember that testimony?

19 A. Yes.

20 Q. But that's not a doctor, is it? Dr. Pendleton is no 21 such person; am I right?

22 A. I don't recall. I did not speak to them specifically.

23 It was related to me.

24

Q. Ms. Pendleton is actually a nurse, right?

25 A. Again, I don't know. I did not speak to them

1 personally.

2

Q. Don’t you think that's important when you're coming in 3 to court to testify in front of a jury about what they 4 should award for the rest of a life of somebody that's

5 been pretty catastrophically injured in a crash to find

6 out who you're getting your information from?

7 MR. GUTHRIE: Object to the form.

8 THE COURT: No. I'll allow it.

9 A. It was my understanding that that individual was

10 qualified to make that opinion as to what was necessary 11 or not, the life care plan.

12 BY MS. KOEHLER:

13 Q. In your experience as an economist, should you know who 14 you're relying upon and their credentials?

15 A. Yes. I mean, it's going to factor into how I would 16 approach the information received.

10:00 We finish the witness and there’s no Mr. Skilling. The defense miscalculated how long cross would take. Judge calls for early morning recess.

10:18 Skilling takes a seat.

He has been so smugly calling himself a Certified Life Care planner but guess what. The place that certified him is not accredited. The classes he took at the U of Florida involved two weekend sessions and reading some books on his own then taking a test. He wouldn’t admit to

this yesterday. But he’s not the only one who did more homework. Take him to the web page. He tries to deny it though it is there black and white. Take him to a peer reviewed journal article that explains they are not yet accredited. He gives up on the issue.

Oh I have been so sweet and kind and trying to have calm yoga like façade for so much of this trial. But no more.

There is a code of ethics put out by the nonaccredited institution that he is certified from. Take him through those precepts – do no harm to the injured person; keep the interests of that person paramount; be fair. He admits to these because he has no choice.

Put up Phuong Dinh’s life care plan and go to the first item that he does not include in his report. Do you know who Dr. Kleweno is (prounounced Klavano). He says, no he doesn’t know who Dr. Kleweno (he pronounces it phonetically and wrongly) is. Move towards him and whisper: Don’t you know who he is. How can you not know who he is. Who do you think he is. Do you want me to tell you who he is. The defendants are objecting. Judge Shaffer is explaining to them this is cross. Skilling sits there knowing he’s made a boo boo. Because as everyone in that courtroom except him knows, Dr. Kleweno is that brilliant orthopedic surgeon from Harborview who treated 7 of our plaintiffs including Phuong who is still his patient.

1 Q. Do you have a reason to believe that Dr. Kleweno should 2 not be accepted in his recommendation that at age 60, 3 having now then undergone several total hip replacement 4 surgery, that Ms. Dinh -- and knee replacement surgery, 5 that she needs to have a wheelchair?

6 A. Well, in my consultation with Dr. Brown, he disagreed.

7 Q. That was not my question. Why would you take the word 8 of someone who's not a treating doctor, who's hired by 9 the defense, over a treating doctor, not hired by the 10 plaintiff, for litigation, a treating doctor? Why 11 wouldn't you consider what the treating doctor 12 recommended for the health and well-being of his 13 patient as she aged?

14 A. My assumption is that Dr. Brown took all those factors 15 into consideration, and given the fact that Ms. Dinh is 16 in her early 20s, I believe she's 21 or 22, this 17 recommendation in more than 40 years into the future,

18 and I believe that Dr. Brown felt it was too

19 speculative.

20 Q. Really. So does she get to come back to court in 21 40 years and say, "I'm sorry, I'm in a wheelchair"?

22 MR. GUTHRIE: Objection, your Honor.

23 MS TODD: Objection.

24 THE COURT: No, Ms. Koehler. Ask a different 25 question.

1 BY MS. KOEHLER:

2 Q. You know how this process works, right? 3

MR. GUTHRIE: Objection.

4 MS TODD: Objection.

5 BY MS. KOEHLER:

6 Q. You get one chance.

7 THE COURT: No. I will allow this.

8

MR. GUTHRIE: Your Honor, I'm going to object. This 9 is a legal issue, the province of the court, not for --

THE COURT: The question is whether or not this life

care planner understands that there is only one jury

verdict on this topic. That's a reasonable question to

ask somebody who's testifying. Back to you, Ms. 14 Koehler.

Jury questions:

1. Was the doctor you consulted for Phuong Dinh’s life care plan critique a treating physician.

2. What were the names of treating physicians for plaintiffs that you talked ot for your life care plan in review and critique.

3. Ex. 1030 page 2 – you mentioned JoAnne Gerke could serve as a survey worker. How heavy is a surveyor’s tripod and other associated gear that must be carried to survey points.

4. How many jobs that were identified in Ex. 1030 p. 3 are available to Rhonda Cooley that are within 30 miles of her residence.

5. For the Choppa LCP for Phuong Dinh, what is your basis for the assertion that 68 percent of the LCP recommendations were not medically necessary.

6. Why would a life care planner not agree with or omit a treating doctor’s recommendation for future care.

7. Why would one doctor’s recommendation be accepted over another doctor’s.

8. Do you think that Ms. Gerke could still be a physical education instructor. Please explain.

9. How long must an employwer accommodate a light duty position. Please explain.

10. How much did Ms. Cooley make per year at Fed Ex.

11. What city is the passport application review job located in.

12.

11:30 The witness has finished answering the jury questions. Defendants misjudged the clock and have no witnesses. Instead of scolding them Judge Shaffer allows an early lunch break. If this had happened to us when we put on the plaintiffs’ case – let alone two times in the same morning, we would have been thrashed soundly.

Work through lunch in the dead silence of the courtroom.

1:20 Andrew and Debbie come to spell Jesica. Tell Andrew the defense lawyers have all stopped talking to me. They all say hi to him.

1:30 Dr. full tenured psychiatry professor Zatzick, MD is called by Scott and presented by JackG. Dude has a CV that includes over 100 peer review journal publications. For the next two hours at full throttle he brutalizes Dr. Olson and his methodology. Dr. Z never examined any of the plaintiffs so is prohibited via motion in limine from commenting upon the diagnoses. But he can let Dr. O have it. Falls way below standards. There’s no report. No explanation. Maybe there’s a reason for the methods used but he can’t tell. Dr. O is terrible. (This is a nonverbatim summary).

Dr. Z speaks so fast that the court reporter almost keels over. In his rush of dialogue – one statement rings around in my head: in the two Olson depositions that he read…

3:40 Lead with this in cross. Dr. O was deposed for 12 days. With all due respect to his eminence in his field, he has done a crummy job in working up this case. We spar until...

4:00 recess.

4:01 leave Andrew to argue instructions.

4:10 Uber picks me up

4:25 Uber drops me off Day 49

FridayJanuary4,2019

Text Alysha: Happy Birthday to my beautiful inside and out Leeshy. I won’t say anything today about it. (She made me promise last night. And if see her to pretend not to). Tip toe out of house so don’t bother her.

Dana Penilton takes the stand. The second life care planner called by the defense. She’s a nurse. Like Skilling – is a “Certified Life Care Planner” by the same unaccredited institution. Scott having been forewarned tries to minimize the importance of that little detail. The rest of her testimony involves pooping over 7 more of Tony Choppa’s life care plans and bad mouthing him just a little bit. But the high point of her testimony. The moment the defendants have all been waiting for – is her research into the diverse countries where many of the plaintiffs live –Netherlands, Japan, Austria and Korea to be exact. They have super duper healthcare and the citizens are all covered. National healthcare. The Dutch have the best healthcare in the world. All of Choppa’s numbers have no meaning because these countries will pay for all healthcare. We had previously brought a motion in limine and lost on this issue so all this collateral source floods into the case.

Could hop up and down and object and look like am scared of this information. Or can wait turn and come out swinging.

BY MS. KOEHLER:

14 Q. Good morning, Ms. Penilton. (not smiling)

15 A. Good morning.

16 Q. America has welfare, doesn't it? (jab)

17

A. America does have welfare.

18 Q. America has social security, doesn't it? (jab)

19 A. Yes.

20 Q. And when people are injured due to the negligence of (pow) 21 others in the legal system that you are testifying in,

22 do we expect juries to just say nobody needs future

23 care because there's welfare and there's social

24 security and there's Medicare and Medicaid? Do you do

25 that?

1 MR. GUTHRIE: Objection, your Honor.

2 MR. WAKEFIELD: Objection.

3 THE COURT: Sustained.

4 BY MS. KOEHLER:

5 Q. Do we do that – (decide to avoid being argumentative)… let me ask this again.

6 As a life care planner, why don't you just tell in

7 your columns when you do a life care plan, why don't

8 you just say patient or client can use Medicaid?

9 MR. GUTHRIE: Objection.

10 THE COURT: That I'll allow.

11 Why not?

12

A. So if a person has Medicare or Medicaid in America, 13 that system right now is in flux, and the coverage 14 varies and changes. And so as a life care planner, it 15 is in our standard of practice to identify what the 16 actual cost is, and --

17 BY MS. KOEHLER:

18 Q. Same question -- I'm sorry, I didn't know you weren't

19 finished.

20 A. And so in terms of identifying -- and another situation

21 that arises is that there are some laws in different

22 states about whether or not reference to those

23 alternative payor sources can be mentioned. So the

24 life care planner has to work within those 25 jurisdictions on how they handle that.

1 But in a situation in America where there are 2 coverage, what you would do is define what the actual

3 cost is and then define whether or not the services are

4 covered in a second column. You can identify them 5 separately.

6 But the reality is, a person may not have access to 7 that insurance policy down the road. So the

8 difference, as I understand it, between these other 9 nations where I explored the health insurance programs 10 is that those programs have been in existence for years 11 and that there hasn't been a question of whether or not 12 those would go away.

13 Q. Really? Did you really look at that thoroughly and 14 investigate the insurance laws of other countries that 15 thoroughly that you can tell the jury that they are so 16 stable that they will not change and they will not go 17 away?

18 A. That is why I recommended and would consult with 19 in-country experts.

20 Q. Which you didn't do here.

Jury questions:

• Approximately what percent of your income is from bedside, case management, life care planning ?

• Approximately how many times have you refused to incorporate Life Care Plan changes requested by legal counsel

• On the occasions you refused to incorporate requests by legal counsel, did they seek further Life Care Planning from you afterward?

• You mentioned Choppa did not review medical records, is he a medical professional?

• Would it make sense to consult a medical specialist, or the source of the medical report?

• Have you written a Life Care Plans for someone living in an Asian Country?

• For Japan- you referred to cost of care but what about access, is there a waiting list?

• Were there any services recommended by Choppa for people you looked at, that were not covered by the health care systems?

• For litigation purposes is a Life Care Plan supposed to be for health care services needed at a later date?

• Should access and availability be considered?

• In your work did you consult with treating physicians?

• Did you consult with any doctors other than attending physicians?

• You said that Choppa should not have used Harborview for overseas, a standard, rule, opinion or some combination?

And then there is the jury question that is not allowed to be asked: Should injured accident victims get different settlements based on whether they live in Seattle or a place with less expensive healthcare even if they were all injured in Seattle.

The next witness is life care planner #3. Vanessa Lee presents the witness and because she’s reading an outline this time she does better. Ms. Bellerive also a nurse. She was a nurse. For over 40 years. Cannot get out of the habit of giving medical opinions. Time and again objections are sustained the Judge Shaffer tells her to stop exceeding the scope of her qualifications. Sometimes striking her answers. Bellerive at least doesn’t try to lord it over Choppa. Admits up front that her Certified Life Care Planner badge is from an unaccredited institution. But she is stuck with a defense medical examiner (Battaglia) who has decided to overrule Mazda Hutapea’s highly regarded treating doctor. In fact, every single item except for mental health counseling is tossed out.

Juror questions:

• When developing a Life Care Plan how does the planner determine whether to include care that might be advantageous but not strictly medically necessary?

• Explain difference between care that is likely advantageous but not strictly medically necessary, using an example

• Does Mazda live in this area?

• In your evaluation did you take into consideration potential work performance issues?

• In terms of your background specifically to long term effects of head injury and PTSD?

• How much training do you have regarding long term effects of head injury and PTSD?

• Is one of purposes of Life Care Plans to account for medical needs that might arise in the future?

• If a physician indicates that someone might need imaging guided trigger point injections but cannot rule out is it prudent for Life Care Planners to decide it is not needed?

• Where does Dr. Battaglia practice?

• Is it uncommon for doctor to recommend ergonomic equipment or ergonomic equipment assessment when someone is doing rehab or specified exercise programs?

• Is it uncommon for doctor to recommend massage or acupuncture to support rehabilitation or specified exercise programs?

• In your experience is it common for most doctors to find ergonomic equipment or ergonomic equipment assessment , massage , acupuncture reasonable under these circumstances?

Last witness is Dr. Jurek. A defense medical examiner orthopedic surgeon. $2,500 an hour. This is the first time she’s ever testified. All bright shiny and new. She has a smile as she speaks eagerly. Oh how fun this is. And lucrative. All can think of is: why would you agree to work for hideous defendants like the duck companies in a case like this. Pat takes her through the paces. Cooley and Gerke should be totally fine and ready to go. They had fractures but they healed. The hip replacement looks great. No reason they aren’t back to normal. 15 minutes left. Begin and do not complete cross. Another witness that we won’t finish til later.

Back home by 4:30. Alysha is downstairs. She doesn’t make me pretend not to see her. We decide to go to dinner. First, short run with Nala. Head to No Bones Beach Café in Ballard. One of our typical haunts. Order Zuccini fries, Caesar salads with avocado and blackened tempeh, and sesame ginger cauliflower. Delish. Come home. She says – where’s my birthday cake. Remind her she told me not to even mention her birthday. She laughs. Go through a box

of baby photos. Text them to her sisters. Ask if can wish her happy birthday publicly. She consents. Choose three precious photos. Post them. Then we go downstairs and watch the third episode of The Marvelous Mrs. Maisel.

Day 50 MondayJanuary7,2019

Am headed to court and have no idea what day of the week it is. Who testified yesterday. Not quite sure if it was yesterday. Pull out phone to check calendar. It’s Monday.

Walk up seven flights. Am going to pop in to say hi to BFF who’s trying a med neg plaintiff case with Dan her husband. Open stairwell door into the hallway. Walk almost directly into Shellie. We chirp greetings of love and hug each other. She is wearing an immaculate raspberry jacket with hand stitching around the edges. White silk blouse with black piping. Black peplum form fitting mid length skirt and high heel pumps. Every inch of straight blond hair absolutely perfect. She looks at my outfit eyes twinkling and says: modern. Am in a bcbg long sleeve dress the bottom 1/3 of which is faux leather. Hits me mid thigh. Black jacket. Over the knee boots. All black. In my wild curly hair is a small rhinestone bobby pin. Follow her into courtroom to say hi to Laura her mom. We hug. Jurors start entering. Say bye. Go up two more flights.

Defense has sent me a PPT from the next expert Renee Bibeault MD psychiatrist. It contains items that were excluded via MIL. Walk up to JackG and Scott. Say: did you tell her about the MIL. They say they will reminder and head out. Judge Shaffer enters. Object to piece of trash PPT on basis of ER 403. It lists everything crappy that happened in the lives of 5 of the victims before the crash. It doesn’t need to be in writing. Judge Shaffer allows it in. Except the MIL items. Ask her to have defendants show the revisions to me first.

MS. KOEHLER: I would like to see that slide before 18 it's put up.

19 THE COURT: No. I'm going to tell the defense to do 20 it, and they're going to follow my orders because 21 they're officers of the court, and they always follow 22 my orders. I'm not going to pretend that I can't trust 23 the defense, all of a sudden.

Guess what by the way. An hour later they are going to show the slides in question. Ask Judge Shaffer for permission to see them first. She says yes. And (shocker) they failed to remove the offending items as ordered. She tells them to take it out. But doesn’t scold them.

JackS presents Bibeault. This is the first time he’s officially opened his other mouth in weeks. Am thinking what an odd choice. Mr. Bombastic to present a damages witness on some of our worst injured plaintiffs. They do their dog and pony show for over two hours. Am about to crawl up the wall. Her testimony is sickening. Gross. Infuriating. Insulting. And dumb. Don’t want to further humiliate the plaintiffs by describing what she does to them in more detail. But

here is a dumb example to illustrate. Fenna you see had her tonsils taken out when she was 5 and still has a vivid memory of all the blood. And so that goes down on the long list of preincident traumatic events that have formed her life. Not that it matters in the long run because neither Rhonda, JoAnne, Gunter or Fenna suffered PTSD from this incident. And Phuong – well she suffered it a little bit but happily was cured years ago.

Am spitting mad. Anger is boiling out of me. First take her to task for trying to make it seem like she’s a psychiatrist for the U of W. Go to website – type in her name. Nothing. Oh she says it’s clinical status. Meaning one of those unpaid volunteer services that doctors in the community will perform. Accuse her of trying to mislead the jury. Judge Shaffer tells me not to do that.

Turn to her fees. $650 an hour. She’s performed CR 35 exams on 5 plaintiffs ranging from 2.5 to one 5 hour exam. Read their medical records. No testing performed. 9-12 page reports for each. And charged $167,000. Really JackS should have dealt with that up front. He knew I was going to parade it around. They have been complaining about Dr. Olson charging $600K to evaluate 48 plaintiffs. He was a bargain compared to Bibeault.

It is a rough and tumble cross. The defendants are jumping up and down. Jack S name calls me a couple of times. At one point am so mad stomp my boot on the ground. During lunch go through her reports and pull paragraphs into a PPT. If the defendants are going to get away with putting summaries up on the screen then her report is fair game. She actually says that Cooley and Gerke’s stories of being scared of driving are so similar that she believes they may have orchestrated their testimony. Take this story line and polarize her to the moon and back.

BY MS. KOEHLER:

14 Q. Now, what is this paragraph relating to? (of her report)

15 A. This relates to the fear of driving that Ms. Gerke 16 reported to me.

17 Q. So tell us what Ms. Gerke's fear of driving report, as 18 related to you, mirrors that of her wife, such that you 19 believe there's collusion.

20 MR. SNYDER: Objection to the form of the question.

21 THE COURT: Overruled.

22 A. As I testified earlier, I was struck by the way both

23 Ms. Gerke and Ms. Cooley described having fear of

24 driving that was present 100 percent of the time, that

25 they felt shaky and nervous behind the wheel, that it

1 had not improved at all in two years.

2 BY MS. KOEHLER:

3 Q. Where is the word "nervous"?

4 A. I'm not able to write in my report every single word

5 that a plaintiff uses in their descriptions to me.

6 Q. Where is the word "100 percent"?

7

A. I didn't include that in this report.

8 Q. Where is the word "constant"?

9

10

A. I'm not sure I said the word "constant" just now.

Q. I'm going to ask that question again. What language 11 that you put in this report mirrors that that you wrote 12 for Ms. Cooley such that you would accuse these two 13 people of collusion?

14

MR. SNYDER: Objection, your Honor. She's not done 15 that.

16

THE COURT: Overruled.

17 A. I will say again that I have not accused these 18 plaintiffs of collusion. What I said was the

19 similarities in their narratives raised suspicion that

20 the narrative was scripted and not genuine.

21 BY MS. KOEHLER:

22 Q. So you know -- by the way, how many times have you

23 testified in a court of law?

24 A. I've testified four previous times.

25 Q. How many times have you done a psychiatric analysis in 1 a forensic setting?

2 A. A psychiatric evaluation in the forensic setting?

3 Q. Yes.

4

THE COURT: Meaning that she's testified about it?

5 MS. KOEHLER: Well, depositions.

6 THE COURT: Meaning you've testified about it in

7 some form, in court or in deposition.

8 A. Approximately 14 or 15.

9 BY MS. KOEHLER:

10 Q. And you're aware what the standard is that you're 11 supposed to be testifying to, on a more probable than 12 not basis, to a reasonable psychiatric certainty.

13 Correct?

14 A. That's correct.

15 Q. And if you do not have that opinion, you should not be 16 stating that. Am I correct?

17 A. I disagree. I think that the triers of fact are

18 entitled to understand all of the things that I

19 considered in determining whether these plaintiffs had 20 conditions related to the accident. And one of the 21 things that I considered was this very unusual

22 similarity in stories, which, in my experience, doesn't

23 happen spontaneously.

24

Q. Are you concerned that your unfounded and biased 25 opinions may taint the trier of fact that has to listen 1 to you?

2 MR. GUTHRIE: Objection.

3

MR. SNYDER: Objection, your Honor.

4

THE COURT: Sustained. Don't. JackS has been festering these past two weeks. Mad at me for not calling back the VP from AIG. Mad at me for not being courteous to the big wigs. Mad for having to defend an indefensible case. He tries to bully me but it doesn’t work well with Judge Shaffer presiding.

Q. So why were you so resistant to just letting someone

22 that's been catastrophically injured like this, with a

23 total hip replacement, why didn't you just --

24

MR. SNYDER: Objection, your Honor.

25 BY MS. KOEHLER:

1 Q. -- go ahead and be comfortable with letting her have

2 the diagnosis of PTSD?

3

MR. SNYDER: Objection.

4 MR. GUTHRIE: Objection.

5 THE COURT: Sustained.

6 BY MS. KOEHLER:

7

Q. How big of a stretch would it have been to say yes,

8 Fenna Zielinski, a woman who was in very good health,

9 being a caregiver, being active, and now has a total

10 hip replacement from being in a horrendous motor

11 vehicle crash, I --

12

MR. SNYDER: Objection, your Honor --

13 BY MS. KOEHLER:

14

15

Q. -- can see why this can be PTSD?

MR. SNYDER: -- this witness is here to tell the

16 truth --

17 THE COURT: That's enough, Mr. Snyder.

18 MR. SNYDER: -- not to please the plaintiffs.

19 THE COURT: Mr. Snyder, that's enough.

20 MR. SNYDER: Excuse me.

21 THE COURT: Vouch again for your witnesses, and I 22 will sanction you.

23 Ms. Koehler, enough from you too. Ask a proper 24 question.

Punch way through an inefficient cross. Next witness is Dr. Mohai to address Terry Sheldon. Have no idea why the defendants are calling this rheumatologist. The doctor has a mumbling monotone and reads the records verbatim. Thankfully the clock reaches 4:00.

Day 51

TuesdayJanuary8,2018

JackS spends all morning putting on Kevin Lewis. Another $150,000 expert. Forensic engineer. Mirrors our expert Reitz’s failure analysis. Except adding the punch line: if the collar had been installed by Seattle ducks the accident would not have happened. They bring in a bright and

shiny axle housing. Show fancy photos of finite element analysis. All quite upscale. It doesn’t take much effort to blow this fancy house down. Every statement made by the witness can be turned around to fit the plaintiffs’ theory of the case. Just ask: if Ducks International had put a collar on the necked in portion of the knuckle ball housing before duck 6 was manufactured would that have prevented this crash from happening: yes.

Eat apple and hummus cracker bad lunch.

JackG keeps wandering over to watch me work on a PPT.

JG: don’t mean to distract you.

K3: you won’t.

JG: oh, well I completely forgot what I wanted to ask you.

K3: (still working) let me know if you remember.

Dr. Zatzick retakes the stand. Instead of completing an attack on him take a completely different tact. He is after all infinitely better than Dr. Bibeault the psychiatrist hack of yesterday. Has published over 100 papers. Go through the PPT created over lunch that cherry picks statements in the publications regarding the severity of PTSD, how difficult it is too treat, and how it can complicate recovery and life. Even though am mad at him for blasting Dr. O, he really is an interesting fellow. We are quite pleasant and civil to one another. JackG objects in the middle of our article review but that is overruled. Back in chambers Judge Shaffer smiles at him and says that the cross was more directed at attacking Dr. Bibeault than Dr. Z himself. She’s right.

Jury Questions:

1. What would be the diff in administering an MMPI with a translator v. using a translated document

2. Is the MMPI in Korean

3. Wouldn’t a translator still be needed for getting the answers

4. Would any of this be different for other tests like the CAPS or MMCI

5. Would there be any benefits to using a translator in administering a test and if so, what

6. Can group therapy be productive with PTSD

7. When thinking about getting group therapy and if it can be productive with PTSD treatment, can culture play a role

8. How common is it to see widespread PTSD in victims of a mass trauma event

9. Under what circumstances would you recommend group therapy for PTSD txmt

10. Is there such a thing of too much clinical therapy

11. Is there a point re PTSD that clinical therapy should be discontinued if progress is still being made

12. Are you aware of how much experience Dr. O has with the DSMIV

Aurora Bridge Trial Diary - 150

13. See any evidence that Dr. O did not administer the DSMIV CAPs correctly

14. Would the additional screens done by Dr. O reduce the validity of his DSMIV CAPS results

15. Have the PTSD diagnoses methods you discussed been adopted nationwide

16. Have the PTSD treatment methods you discussed been adopted nationwide

17. Do Dr. O DSMIV CAPS results depend on your understanding on his approach

18. Does the perceived lack of integration into the Choppa reports diminish Dr. O diagnoses in any way

19. How can you say Dr. O’s work is inadequate and insufficient when you have read less than 20% of Dr. Olson’s depositions

20. You mention that research changes and you would want to re-evaluate ex 887, how do you account for the rate of change in your field when you say something is more probable than not

21. Have you ever worked with Dr. O before

22. Have you ever been asked to critique Dr. O methods in other cases

23. Have you ever use translators

24. Have you ever done research involving mass casualty victims

25. How does your clinical res work differ than dealing with PTSD sx of a Koumer Rouge or Vietnam veteran

26. Can a mass casualty victim appear mentally healthy immediately and months after an accident and then have symptoms later

27. Do the majority of victims of mass casualty incidents display sxs of PTSD right after the incident

28. Explain difference of having symptoms of PTSD vs having diagnosis of PTSD

29. Is the CAPS the gold standard in both the clinical and forensic fields

Lewis then retakes the stand. JackG on behalf of ducks Seattle more technically challenges him. But peters out after a while since the two ducks are walking the lines of a semi-truce. Steve Puz decides to grandstand. This is so the jury will be reminded that the State is not really the bad guy here. Goes back over the entire theory of the liability case. Despite his yelling for the first time some of the jurors’ eyes start rolling around in their heads. Totally relate as mine do too. The liability ship has sailed. Enough already.

Email pops up. From AIG. Offering to settle two of the cases for people whom Bibeault tried to humiliate and destroy yesterday. The message received is: hey we just pooped all over your clients and now we are offering more money so they will settle. Resist urge to tell them: bugger off.

After the jury leaves for the day, Judge Shaffer requires the defendants to tell us the schedule. International plans on resting tomorrow. Seattle has only one witness. The State and City between them have maybe three days. And then we have a day of rebuttal. Factoring in MLK day and half a day this Friday, we are going to close sometime around January 22 or 23.

Leave as Andrew puts on his armor to argue jury instructions. Arrive home. Chat with Alysha for a few minutes. We drive to Metropolitan Market to get birthday cake. She says: why didn’t you get me one. Reminder her she didn’t want me to even talk about her birthday. Plus is gluten free. Ponder cake selections. Decide upon white cake with raspberry filling, lots of frosting. Locate candles. Drive home. Michael calls from Harborview. Has finished his last surgery.

Can meet me at the restaurant. Drive to Aqua. Window table overlooks Puget Sound. But it is dark outside and can’t see anything. They have pulled the petals off an odorless orange rose and strewn them about the table. Celebrate Michael’s birthday. Come home for cake. And then it’s back to trial prep. Send the court notice that we will be moving to strike the three defense LCP’s testimony insofar as the defendants are not calling the orthopedic surgeons who treated Phuong, Mazda and Fenna and upon whom the LCP’s rely.

Day 52

WednesdayJanuary9,2019

The jury walks in. We head into chambers to review questions. Walk back out. With a Mona Lisa smile. Should just hand the microphone over to them. Abdicate role as plaintiff lawyer. They are magnificent. Jesica writes them down:

1. What is your opinion on the suitability of the tab fix as an early warning system or structural reinforcement.

2. Can you explain that answer.

3. Should the fracture have been visible to inspection during the annual 2014-2015 maintenance inspection.

4. Was the metal tab material too soft to materially protect the joint.

5. Can a welded tab on the bottom provide significant relief of tension.

6. How did you model the weld in your FEA (fixed element analysis) of the axle with collar

7. Given the steel used for the tab was soft was there an FEA to prove that it strengthened that axle housing.

8. Can you loosen the rubber boot to show that axel housing was easily inspectable.

9. What type of specific metal is the collar made from

10. What type of metal is the axle made from.

11. Would middle steel work adequately for collar fix.

12. If you were involved in writing instructions on how the collar fix should be performed, would you have instructed as to the exact metal the collar should be made from

13. If you were involved in writing instructions on how a collar weld should be performed would you have instructed on type of weld and welding medium

14. If you were involved in writing instructions on how a collar fix should be performed would you have instructed on the geometry of angle of the bevel on the collar

15. For this fix if the service bulletin did not include this information, and you gave those instruction to 5 shops, would you expect the results to differ across the shops

16. Without relying on information provided after you formed you opinions, would you prefer mild steel or 1040 steel.

17. If axle steel is 112 psi, mild steel is what.

18. What is your experience/expertise in welding

19. Could you perform this weld yourself or do you possess a welding certification

20. Would mild steel stretch if used as a collar.

21. What kind of steel were the tabs made of.

22. Please describe the process of full penetration weld, and would this process be better.

23. Do you have any opinion on how you would have solved these problems.

24. Would you preheat the knuckle ball housing before welding on the collar.

25. Do you know if the shop that attached the collar on your axle used pre-heating.

26. Would you have put your stamp on the tab fix as a preventative measure or as a warning indicator.

27. Does the vertical separation of 8 inches and the angular separation of about 90 degrees of the drag link arm and the tiered arm on the driver’s side cause torsional stress and transfer stress on the driver’s side knuckle and transfer some steering load from the passenger knuckle to the driver knuckle causing additional fatigue on the driver’s side knuckle. Please explain.

28. How do you design something with infinite fatigue life and how common is it to do that.

29. Assuming an axle was close to failure what would we look for as an indication of fatigue.

30. Would presence of a tab make a visual inspection more difficult, if not impossible.

31. If fatigue happened over years is it possible fatigue started when the axles were installed initially.

32. Did you perform stress analysis on an area of axle housing when a tab was present.

33. If so how did that stress analysis compare or contrast to other testing you did.

34. You left a lot of decisions to the person doing the welding during the discussion of Ex. 73. Is it you opinion that it takes a good welder to create a good well.

35. Does Ex. 73 specify how good the welder must be in the sense of welder qualifications.

36. You mentioned in your testimony that this is “exactly what I trained to do.” And you have a BSS in metallurgy. How many courses in metallurgy did you take at Washington State as an undergrad.

37. Did you take any graduate level courses in metallurgy as an undergrad

38. In the demonstrative exhibit on the attractive blue cart, what is the distance between the knuckle ball housing and the left spring perch.

39. Did you perform an FEA for the left and right nipped region of the knuckle ball housing

40. You indicated a 42% stress reduction based on a one G analysis put the part into quote a region in which there would be no fatigue loading end of quote. Did you make assumptions about the maximum load or frequency of such a load to reach your conclusion

41. How did you validate those assumptions other than referring to material you reviewed after you formed your assumptions

42. During your presentation you said “almost eliminating’ in your summary. What did you mean

43. Did you imply that the juror would need a scanning electron microscope to see the machining grooves.

44. Is it possible to see the machining groove on the unpainted axle housing, on the bottom of the blue cart

45. Can we see them.

The jurors questions take almost an hour and a half. All I had to do was keep out of their way.

Next witness is Mr. Martyn a naval architect from Missouri. He’s going to tell us that the Coast Guard does not require safety belts on amphibious vehicles. To the contrary, the requirements are ready egress and no impediments which the Coast Guard in Missouri interprets to mean no seatbelts. Scott gets him on and off in under ten minutes.

Cross goes basically like this. Was this duck in the water here (show photo of Lake Union and the bridge). Was the duck in the water here (photo on bridge of the duck crashing into the bus). Was the duck in the water water water. Why no it wasn’t.

Jury questions:

Q: Are you saying that it’s your understanding that it would be a violation of law to have had seatbelts in a duck.

A: It does not violate the law to have seatbelts on a Duck boat.

Q: What’s your understanding of how an entity or a person would challenge an interpretation of law that the Coast Guard enforces or regulates. What’s your understanding of how that works.

A: It could be challenged by an operator if they disagree with the way the Coast Guard is enforcing its regulations on their boat.

Q: Has the Coast Guard worked with any state or federal road safety entity on how to address amphibious vehicle safety concerning seatbelts before the accident.

A: No, not to my knowledge.

Mic Drop.

Scott puts on RTDI’s final witness. Brian Boggess an engineer who is going to tell us how safe the seats are in the duck. Jesica sends me a note that whe will pay me $5 if I pronounce his name as Bogus. (The closest get is Bogess).

Scott is rushing through this witness too. Cognizant that I’m working up a cross PPT. My computer is set up to the big extra monitor and am going to work. The defense absolutely hates that am using their expert’s slides to create cross PPTs.

This dude is a pill. He compares the ducks to a school bus, airporter bus, metro bus, church van, and the MIC bus exemplar. Duck seats are perfect. Duck is safe. Duck meets all standards.

Say good morning and after two questions realize he isn’t prepared. He didn’t bring his files. He just brought pretty pictures so he could talk to the jurors as if this was Kindergarten show and tell hour.

Ask him for the measurement of each vehicles seats. Height, depth, length, distance from the one in front. He doesn’t want to do this because he doesn’t know. He didn’t write a report. He has CAD drawings but but but but. So he starts guessing. But doesn’t do a good job. At one point walk over to my purse and pull out a tape measure and say did you really say this much. Extend the tape measure. He backtracks. Glaring at me while trying to look big and important to the jury.

Q. All right. To summarize, you can't quote us as to the 6 dimensions of any seat on any vehicle, whether it's the 7 Duck or any of the six models that you have included in 8 the current slide; am I correct?

9 A. I can't quote the dimensions to you, no, ma'am.

10 They're all in those CAD files. We can pull them up.

11 This was an industrial exhibit to demonstrate the 12 comparison similarities on a one-to-one basis, between 13 different style multi-passenger vehicles.

14

Q. But you can't even compare -- to an engineering degree 15 of certainty, you can't compare any of the seats 16 because you can't tell us any of their dimensions; am I 17 correct?

18 MR. WAKEFIELD: Objection, asked and answered.

19 THE COURT: Overruled. It's cross.

20 A. I can do an engineering analysis. I have all those CAD 21 models. I did this. They're all on the same exact

22 one-to-one scale. You can see it, you can appreciate

23 the similarities, you can appreciate the differences.

24 And in that CAD model I can exactly measure them. I 25 did not create a report and table for every one of the 1 dimensions you're now asking me about.

2 Q. You didn't actually create a table of any of the 3 dimensions I've asked you about, am I correct?

4 A. I did not create a table, that's correct. I've 5 presented an illustrative exhibit to demonstrate the 6 similarities between a lot of different multi-passenger 7 vehicles to show that the principle of 8 compartmentalization is there, the basic layout is very 9 similar to many other vehicles that are actually better 10 than many of those vehicles that we commonly use.

11 Q. As you sit here today, you have no foundation for the 12 illustrative exhibit that you presented with

13 Mr. Wakefield showing these vehicles other than 14 eyeballing them; is that correct?

15 MR. WAKEFIELD: Objection.

16 A. That is not correct at all, no, ma'am.

17 BY MS. KOEHLER:

18 Q. You cannot share with us so that we can determine 19 whether what you based your opinion on was reasonable 20 or not, any data with respect to any seat or layout of 21 the vehicles that you have shown to us; is that 22 correct?

23 A. You're welcome to go through the CAD files. They're 24 one-to-one CAD files.

25 THE COURT: Okay. She's not asking you that. She's 1 not asking you what she could do privately later.

2 She's asking you what you can present to this jury

3 right now. Can you answer that question?

4 A. I'm presenting a layout of these vehicles that you can 5 see and make the assessments yourself from.

6 MS. KOEHLER: I'm going to move to strike this

7 witness's opinion, your Honor.

8 THE COURT: Overruled, but I think the jury will 9 decide what weight to give it.

He does no better after lunch. Then the jury buries him with their questions.

Dr. Mohai comes back to complete his cross regarding Terri Sheldon. Still have no idea why they called him. Use him to get in all of Terri’s body bruise selfies and to read about her PTSD from the treating records. Then say bye.

RTD International rests. The jury hides their amazement. Seriously that was it. What a whole lot of nothing. They are going to be in for another surprise RTD Seattle is only calling one witness. A welding expert from Fargo who for the first five minutes makes us all smile because he speaks with such a charming Fargo accent. And then we realize he’s never been a witness before. And what Seattle said would be a 45 minute witness turns out to be one who spends 45 minutes just getting qualified. He has a 71 page PPT and we are on page 5 by the time the clock hits 4.

Get home in time for it to be completely dark outside. Nala went running earlier with Alysha but still greets me expectantly. Don run gear, rain coat, head lamp, leg light. Put on her vest. Head up hill. Avoid 3 oblivious drivers. And for the next hour free think about closing.

Day 53

ThursdayJanuary10,2019

Tired of wearing color. Today: short black slacks with crepe knit booties. Tight lululemon black shirt with sleeves that have the thumb cut out of them so they reach midway down hand . Short black shirred jack. And a tassled necklace.

Tengdel the welding expert resumes the stand. JackG finishes him up. JackS shouts and argues and tries to tear him apart but this is a losing battle. First Tengdel is unflappable in only the way a welding expert from Fargo can be. Second, JackS is frustrated because RTD Seattle has only had Tengdel testify about the inadequacy of the service bulletin in laying out a welding protocol. He wants to use the expert to go against Seattle for not taking any action once the SB was issued. He keeps trying to go beyond the scope even as Judge Shaffer warns him to stop. After ignoring her one too many times Judge S sternly tells him next time he will be finished. That works.

While this is all going on, Andrew and I look at each other and thank the stupidity of the two ducks companies in continuing to fight it out. They are the gift that just keeps on giving. As if reading our thoughts they call truce again and sit down.

I only have a few questions which Tengdel tries to answer by using analogies that none of us understand. The jury wants him to analyze the welds on the axle housings that are strewn about the courtroom but that would be beyond the scope. Judge S tells them nice try and they all start laughing.

Then that’s it for RTD Seattle. They rest. RTD International is hanging on and not officially resting because they still have a medical doctor to go. The City and State have no witnesses.

We interrupt the lame defense case and do four witnesses in rebuttal. Choppa the life care planner, Olson, the psychologist, and two clients whose bruised body photos the defense objected to due to lack of foundation.

Jesica and Debbie worked feverishly last evening thru the morning to pull this off. Everyone shows up on time and the two clients appear via skype from Wisconsin and California one after the other. It is all so smooth and flawless and in stark contrast to the starts and stops of the defendants’ efforts in pulling witnesses together.

While the defense has no questions for the plaintiffs, they have a holy cow over Choppa and Olson. They are jumping up and down objecting to the rebuttal process. Am thinking have they never tried a case before. Scott wants to know what I’m going to ask. Uh no. JackG, Tyler, Patricia don’t think we should be able to discuss the critique that has occurred against the two experts. That we should have done this during direct. No says Judge Shaffer. They even pull up a case which she looks at and tells them that all it does is support her ruling 100%. They are acting like big babies and there’s a reason why.

Their cross is awful. It lasts much longer than the rebuttal direct. No focus. A hodgepodge of questions that in looking back they will probably be embarrassed about. If needed to use just one word to describe their technique it would be: floundering. They needed way more time to prepare apparently.

On top of all of this Andrew leans over and whispers to me that Tyler has put on a trial belly. Tyler is pacing in front of me and as he turns around voila - tis true.

We go 20 minutes past 4:00 to finish Dr. Olson and the jury questions. Jury leaves. Judge asks what is next. We go through the calendar. They have a few people for tomorrow and Monday. No one on Tuesday. Battaglia on Wednesday and someone on Friday. Judge Shaffer seems not to be worried about all the holes. I object that this is ridiculous and she says this always happens at the end of a case. It appears likely that we will close right after MLK day.

Jesica, Debbie and I uber out of there. Come home. Go for a run in the dark with Nala. It is time to prepare for tomorrow. But don’t want to. Instead drive to the theater. And watch On the Basis of Sex. The latest RBG movie.

Aurora Bridge Trial Diary - 157

Day 54

FridayJanuary11,2019

Get out of bed. Throw on running gear. Head into daylight. Nala looks around in amazement. Finish loop. Change into black and white dotted slacks. Black and white splotched silk cami. White short jacket. Black flats. Fasten RBG “dissent” necklace that Elodie gave me a few weeks ago. Drive to office. Nala looks around for Anne. But she’s working from home. Brad comes for a chat. Is getting ready to leave for a week. Playing in a PGA golf tournament in Palm Springs which is apparently a very big deal. We talk office. He leaves to hit a lot of golf balls. Finish PPT for this afternoon. Drive downtown. Park. Walk thru tunnel. Up 9 flights. The defendants have run out of witnesses so we are not starting til 1:30.

Dr. Jurek resumes the stand from the week before. Defense medical examiner orthopedic surgeon who says Rhonda and Joanne are healed. The PPT is filled with detailed medical records. We start with Joanne’s giant medical chart. The doctor was asked last week if she disagreed with anything on it and she pointed out contusion to head, contusion to arm, and back pain. The ED notes indicate the contusions. The back pain is all over the records. She has to retract a bit on her position. More importantly we demonstrate that our charts are credible.

Ask her about the ablations that were performed. She did not write them down in her report and does not know what was involved. We tussle back and forth this way for an hour and a half. Dr. Jurek’s bright eyed eagerness has been placed with a more frazzled countenance.

On redirect Pat puts Dr. Jurek’s highlighted written report up on the tv and has her literally read her answers to the jury. 2 months ago when Dr. Olson read his notes from the stand, Judge Shaffer told him he needed to refresh his memory by this process: a) read the notes; b) put them aside; answer the question without reading from them.

Huff and puff every objection can think of: cumulative, ER 403, improper protocol. Judge Shaffer overrules each one. To shut me up even though not requested the court gives me a standing objection. Am extremely irritated by this obnoxious dog and pony show. When they are done Judge S gives me opportunity for redirect. At one point when Dr. Jurek says she needs to see a specific chart note snipe: considering that you charged $2500 per hour would have assumed you would be able to recite the record. Pat’s objection is sustained.

Go back into chambers to wait for jury questions. Judge Shaffer reads the list. Stride from the room unable to keep smile off face. Lisa types them out.

1. Did Ms. Gerke complaint of hip pain when you saw her?

2. Can soft tissue injuries lead to chronic pain?

3. During your internship, residency, and fellowship, how many back/spinal column surgeries were you involved in, did you observe, assist in, or perform?

4. After your fellowship, how many back surgeries have you performed in the last 6 years?

5. After your fellowship, what types of activities, other than practicing, do you use to keep current?

6. Would you say that those activities are typical for orthopedic surgeons?

7. Re: Ms. Gerke: What kind of forces would be required to fracture 4 transverse processes at the same time?

8. Would the soft tissue that transfers those forces also be injured?

9. Would the soft tissue that transferred the forces become inflamed?

10. During the soft tissue response to injury, are any substances like cytokines that are released also involved in arthritis?

11. Are cytokines generated by soft tissue injuries?

12. WRT the studies that you based your opinion on with respect to the lumbar spine MRI for Gerke, were those specific to transverse process fractures of the lumbar vertebrae?

13. When you say an injury is supposed to “heal” in 6-8 months, what do you mean by “heal”?

14. Does “heal” mean that it’s almost as though the injury never happened with respect to daily experiences?

15. What does “completely healed clinically” mean?

16. Are there nerves near the tibial plateau or the upper tibia that could radiate pain to another part of the leg? Explain.

17. Can one experience long-term pain after soft tissue damage? Explain.

18. How would a 20 year old and a 50 year old differ re: experiencing long-term pain after soft tissue damage?

19. Re: soft tissue damage, can there be nerve damage along with the injury that continues after the soft tissue has reasonably healed?

20. How is nerve damage and related pain diagnosed? Explain.

21. What is a labral tear?

22. Could this still be affecting Ms. Cooley today?

23. Do you have an opinion whether a hip replacement can lead to imbalance of the spine that can lead to pain a year later?

24. If a hip replacement causes imbalance on the spine that leads to pain, is this causally related to the accident?

Trust the jury plays like a song in my head. 54 days and they are one hundred percent present.

There is 10 minutes left. The State has an expert waiting to go next. But first Steve has to do opening. If you will recall at the very beginning of trial the State and City decided to be cute. They postponed openings. Then didn’t tell us. Resulting in our schedule being thrown off.

Well here we are at the end of the case and they are going to do opening and then have to do closing in a week. In retrospect bet they realize what a dumb move this was. Their case was framed months ago by plaintiffs.

Steve stands up and in the presence of the jury says he doesn’t want to do his opening. He wants to do it next week instead. Judge Shaffer bats him around a bit but not really. He stands there like a supplicant. No please don’t make me do it he communicates telepathically. She says he can open next week. Then tells the jury we only have 3 more days of testimony with no court Tuesday or Thursday.

Drive home. Feed Nala. Check in on Alysha who isn’t feeling great. Michael comes over. Walk downtown. Eat veggie quesadilla at the tacqueria on Fifth Ave. Walk next door to Cinerama. They are having a Disaster Destruction Dystopia film festival. Buy chocolate popcorn. Watch the original Robocop movie. Full house of people hooting hollering and clapping the place down. Walk home. And think. 3 more days…

Day 55

MondayJanuary14,2019

Puz gives his argumentative opening. Slams the ducks for being at fault. Nothing about the bridge contributed. Then calls Lance Bullard from Texas Transportation Institute. A civil engineer for TTI who rarely testifies and works on maybe 6 cases a year for government defendants. Probably the best defense expert called. Steve spends almost an hour qualifying him. Doesn’t finish direct until noon. Andrew does the cross. Three jurors ask all of the questions (Lisa types them):

1. At what value of crossover accidents per million greater than 0.08664 would you consider a median barrier necessary.

2. On page 31 of your presentation, you mention that a median barrier needs to present a lower hazard than a roadside obstacle. Would a median barrier present a lower hazard than ________.

3. If a median barrier reduced the probability of crossing median, would it also reduce the probability of a vehicle continuing its cross-median path toward the opposing roadway side.

4. If the vehicle had the potential to breach or vault over existing roadside barriers on the Aurora Bridge, would a median reduce the potential severity of such a collision.

5. On pg 35 of your presentation, what type of increase in fatalities would a center median barrier cause on a non-freeway roadway.

6. Do you consider an amphibious vehicle to be ordinary travel.

7. Are there cases you know of where an atypical vehicle is prohibited on a roadway due to height or weight.

8. If the number of lanes on the Aurora Bridge were reduced, would that increase congestion? If so, would that lead to lower vehicle speeds.

9. In terms of safety, is your focus on people or vehicles.

10. You said your work is data driven? Can you show me how the number of people are accounted for in the data you presented.

11. Did the collision history you used include an incident of a Metro bus leaving the Bridge.

12. You mentioned a research project in which 25 states were involved? Is WSDOT/Washington one of those.

13. In your work, do you use the term “barrier” for median barriers or guardrails.

14. When you’re evaluating the probability of collisions that involve center lane crossovers, how do you factor in the severity of the collision.

15. As the impact angle increases above 25%, does the effectiveness of a retention barrier increase as well. (Is there any difference in the effectiveness of a retention barrier depending on the impact angle.)

16. If steering control is lost when a vehicle is in an outer lane, will the impact angle increase as the vehicle crosses multiple lanes.

17. Does the AASHTO handbook have varying standards for barriers.

18. Does AB have a “clear zone”.

19. In your presentation pg. 5, you mentioned control devices intended to control vehicle speed based on reaction time. What does control mean.

20. Are these speed limit signs “control signs”/”control devices”.

21. Can’t drivers exceed the posted speed limits? Can safety barriers like median barriers be disregarded by drivers in the same way.

22. Is the historical data used for your computation on pg 17 of your presentation, a raw count of collisions in terms of number of vehicles. If one of the 21 collisions you used had involved 37 fatalities, would you modify your approach.

23. With regard to pg 22 of your presentation, you mentioned that a jersey barrier would not be appropriate for the Aurora Bridge due to deflection. Were you assuming the base would not be anchored to the bridge deck.

24. Another witness got an average of 1.8 acc/mile/year. That witness also stated 1.5 is “high.” That witness stated 3 would be an accurate average accounting for length of the Bridge. If 3 is accurate, then by California standards would a median barrier be warranted. Explain.

25. How does injury versus death come into play making a determination if a roadway was safe for ordinary travel

26. Can a roadway be deemed unsafe if it only has injury involved accidents and no accidents involving death or serious injury.

27. Are you aware of median barriers in use with 1 foot or less of shy distance.

28. What is your split of testimony plaintiff/defense.

29. If the Aurora Bridge were wide enough to accommodate a median barrier, what type of median barrier would you recommend.

30. What poses more risk to great bodily harm on something like the Aurora Bridge – median barrier or no barrier.

31. The Route Development Plan that you reviewed made a recommendation for a center median barrier, stating “a high accident rate, especially head on”. Did you review any information showing why that conclusion was reached. Is there any standard different from the one you used that would come to a different conclusion.

Bullard answers the questions. His answers to the questions are better than his actual testimony since Puz couldn’t resist leading him through the nose.

Tad gets up for the city. Gives his opening which is totally closing. They have book ended the witness.

Pack up. Walk down the aisle towards the courtroom door. A man steps out. He looks familiar. Keep going. He reaches out. Hi Karen its Mike. Takes me a second to focus. Oh yes. Hi. So good to see you smile at him. It is Mike one of the VP’s from AIG. The one JackS is so mad about. Because haven’t responded to his emails during trial. It only took him almost 4 months but he’s returned. Just in time for the end of the case. He will be here for several days. Oh great, I say. We can talk tomorrow. Smile cordially. Keep walking.

There are so many stories about this case besides the one unfolding in the courtroom. How 40 plaintiffs have stayed together for 4 months. How they have responded to the personal attacks against them by defendants who fake act as if they care then stab them with nasty experts who say they are not really injured. Or bad mouth them.

Walk away from Mike. Wonder for the thousandth time – why did the insurance company insist on strong arming these people during this case. Why didn’t they pay the funeral expenses for the families whose beloveds died. Why didn’t they cover the medical expenses for those hospitalized, in nursing homes, and who needed surgery and care later. Why did they send a private investigator to conduct surveillance. Why did they cold call employers trying to find people to testify against them. Why didn’t they admit liability. Why did they low ball everyone during mediation. Why would they think – after acting like such jerks – that the victims would trust them over a jury.

Share uber with Jesica. Arrive home. Go for run with Nala. The whole time am fussing in my mind over Bullard.

You can see Puz and Tad here: https://www.kiro7.com/news/local/trial-over-ride-the-duckscrash-underway-in-seattle/854188041

https://www.seattletimes.com/seattle-news/state-lays-blame-for-deadly-ride-the-ducks-crash-onmaker-seattle-operator-of-tour-vehicle/

Day 56

TuesdayJanuary15,2019

We are crammed into the 8th floor. Judge Shaffer is so happy to be back in her own courtroom. This is the first day we are in trial without a jury since individual voir dire occurred back in October. After almost every day of trial, the judge pecks away at the 120 pages of jury instructions. This process was too much for me to bear. So Andrew has been dealing with it the whole time.

Today am here mainly to provide support. But also since the end is near decide it would be a good time for me to dial back in. Mainly sit back and watch. But every once in a while mainly on the damages instructions chime in.

JackG is trying out his favorite Jimmy Stewart pose. Leaning against a low bookshelf. In an aw shucks kind of way. He says he has something to say. Judge tells him to proceed. He says that just now when we were talking about Toshi Hiraoka (and Tyler said something that was outrageous) that I leaned over to Andrew and said: that’s a lie! (I did). He then says that he and the other defense lawyers have seen me do this in trial. And since am sitting right next to the jurors they believe I may have been overhead even though its never shown up in the transcript.

Judge Shaffer then of course has to give a lecture on why saying the L word in court is not good and to not do that. She also says that given my representations that I would be turning towards Andrew with my back towards the jury to whisper at him though in the direction of the spying defendants, she is sure the jury has not heard anything nor have they said anything. This ticks me royally off. Shoot an email off to JackG: that was a punk move. Next time you have a problem with me say it to my face like a grownup.

He avoids me the rest of the day. As he should.

Walk with Andrew over to Columbia Center food court for mediocre lunch. Chat. Walk back. Mike from AIG is there waiting to speak with me. We go into the jury room and speak. His feelings are hurt that we have not settled the cases. Half an hour later time to resume court. Listen to Andrew argue a few more items. Admire Judge Shaffer who is doing a splendid job.

Andrew’s summary for the day:

• State’s CR 50 motion to dismiss: Denied.

• State’s request for limiting instruction on lanes and speed: Denied.

• City’s request to limit highway instruction to “maintenance” only: Denied.

• City’s request for Ruff v. King County limiting instruction: Denied.

• City’s request for discretionary immunity instruction: pending but likely to be denied.

• RTDS request for hindsight instruction: Denied.

• RTDI request for special proximate cause instruction: Denied.

• RTDI request for superseding cause instruction: Denied.

• State’s motion re: Failure to mitigate as plaintiff’s contributory fault: pending but leaning towards denied.

Note: our briefing team of Andrew, Garth, Lisa and Melanie has been unbelievable in fielding the mountain of stuff thrown our way not to mention writing all of our own motions.

Take off a little early.

Uber home in under 15 due to no traffic. Go for run with Nala. Think more about closing concepts. Take Nala for a haircut. Alysha is with me. We stop off at Wholefoods. Choose the wrong line to stand in. Waiting and waiting. Another station opens on our other side. She says next in line. Alysha has placed our items on the conveyor belt. The person behind me walks over there. And quick as can be. Grab food items and plop them down and cut her off. Alysha says – seriously mom. Goes to car as my rudeness was too much. Get checked out. The people was standing behind are still having their items scanned. Go out to car. Get scolded for being rude.

Know it is not an excuse. But battling this many defense lawyers every single day. Over legitimate things. And then the petty. Has me ramped up. Am like a big time wrestler. Itching for a fight all the time.

Pick up Nala. Need to de-escalate. Go to Regal Meridian with recliner seats. Watch Mary Queen of Scotts. Which ends (spoiler) with her head getting lobbed off. Return home. Get back to work.

Day 57 WednesdayJanuary16,2019

Uber driver is from Breckenridge CO where he lived for 5 years. Loves the outdoors. Though Seattle has better forests. Plus Denver is ugly and Seattle is beautiful. When he was in CO he broke his knee cap and severed his patellar tendon. Gnarly. He rehabbed and was back to hiking 20 peaks the next year. Moved to Seattle because he met a woman. She works at Amazon. It is so expensive in the city. He wants to work in professional voice. Maybe podcasts. Is moving to LA in a few months to live with his uncle who has a huge house. In Anaheim. He is on good terms with his girlfriend. But moving on. We arrive. Tip him 2 bucks for being entertaining.

The city puts on a traffic engineer and a bureaucrat. Vanessa tells me they will be very short. But we are not going to let that happen.

Vanessa goes first with Therese Casper who tries to use all questions as an opportunity to grandstand on what a great job the City does and how when the Aurora Bridge is mentioned in past reports it is just chatter of no merit. Tad goes second with Dhongo Chang the City Traffic Engineer who is well rehearsed in explaining that the bridge is safe for ordinary travel and other platitudes.

My cross is inelegant. There is some fumbling. Alot of objections. Attempt to get documents into evidence and shown to the jury. Some rulings allow this. More rulings deny this. At one point Judge Shaffer requires me to show each page of the same document to the witness first and get the court’s approval before it can be shown. The City and State each call for sidebars. The end result, is the appearance that the City is attempting to hide documents from the jury.

Vanessa is frustrated. Tad is angry. When we are putting the sidebars on the record Tad complains:

The document, it’s the feasibility, all over again. They keep trying, they keep getting shut down. So my concern is they’re playing games with post-accident documents. They’ve got their little screen pointed so the jury can read it, they’re calling people names in voices that everybody in the courtroom can hear. It’s not cool.

Watch his mini tantrum. With a beatific smile on my face.

The third witness is (in my opinion) the worst defense damages expert of the entire trial. That is a feat considering how horrid some of them have been.

Michael Battaglia is an orthopedic surgeon. Tad cedes his time to Scott who does direct. Dr. B is a well qualified MD who boasts a distinguished naval medical career. He spouts off his

degrees and accolades as if hoping for applause. His testimony is that Mazda – our 18 y.o. student “ambassador” on the bus healed from her pelvic fractures, rib fracture, and lacerated liver. As of 5 months post injury she had no further need for treatment. While this is not that unusual of an opinion from a defense doctor, the manner in which he and Scott are presenting the testimony is off. In fact, it is as if we are an alternate universe. This young teenage student was in the worst roadway crash in known Seattle history – and they are literally mocking her. Their tone is sarcastic and dismissive. My skin is crawling.

Everyone other than the defendants and their expert are uncomfortable. The jury is hush quiet. Do not charge him loudly and wildly. Constrain every urge. Instead use sweetest tone of voice. And let him talk down to me.

21 Q. Good afternoon, Dr. Battaglia. How many of your 22 patients do you treat without examining?

23 A. Well, clearly, none of them.

24 Q. So in this case my understanding is that you did not 25 meet Ms. Hutapea?

1 A. Correct.

2 Q. You did not examine her?

3 A. Correct.

4 Q. You did not interview her?

5 A. Correct.

6 Q. You took no notes?

7 A. Correct.

8 Q. You have written no report?

9 A. I was not asked to author a report, that's correct.

Drag him through medical records. Let his increasing hostility wash over me. Then he goes where no other defense doctor has dared to go. To make sure no one misses exactly what he is saying, push him into it as hard as possibly can.

Q. So do you believe that the reason for her physical 9 therapy was not related to her crash, or that she just 10 simply was making this up?

11 A. That's kind of an open-ended question, Counselor. I 12 never said that I thought she was making it up. I 13 believe that what's driving a lot of this later care, 14 the case management.

15 Q. What does that mean?

16 A. We both know what it means. It's for secondary 17 reasons. I have treating physicians's records which I 18 rely on, and all of a sudden she's told to follow up in 19 February of 2016, five months later, as needed or never 20 again, and then follows up later. So I suspect there's

21 other reasons that are driving her, as her subjective

22 complaints that haven't come up immediately after the

23 accident are all of a sudden blossoming.

24 Q. Oh, so what you're saying is that she's making up her

25 need for medical treatment so she can get money from

1 this lawsuit?

2 A. I didn't say that, Counsellor.

3 Q. Oh, you sure did.

4 A. No, I didn't.

5 MR. WAKEFIELD: Objection, your Honor,

6 argumentative. Move to strike the comments of counsel.

7 THE COURT: Overruled.

Katherine Mason has come to lend support and watch Battaglia. She walks out of the court with Andrew Jesica and I. What just happened in there we wonder. Katherine is bemused. We are disgusted. Our uber comes. Jesica and I say goodbye. We are talking about how awful it was to listen to all that. After three minutes uber guy says: are you lawyers. Yes. He then tells us about a pitbull that attacked his mastiff in the hallway of their apartment. His dog then ran into their own apartment and the pitbull followed and bit his girlfriend. Then the mastiff fought back. And there was blood everywhere. On the walls and carpet. His girlfriend had to go to the hospital. And their dog was bit all over. But it was a mastiff after all. So it beat the crap out of the pitbull in the end. Tell him what to do. Which sounds like he already did. He moves on to his next issue. This past summer he was working as a commercial fisher person in Alaska. Was at the cannery. When a sea lion jumped up on his back and bit him or clawed him not sure which. About four inches deep. Can he sue the cannery for not keeping the sea lions away. Uh they are an endangered species. He arrives at house. Drops me off. Run in the dark with Nala. Try to wash the dirt of the nasty defense out of my mind.

Day 58

January17,2019

Garth is sitting in the hall outside Judge Shaffer’s courtroom. He is the firm’s instructions guru. Has come to provide more support. Andrew arrives. We go in. Take our seats at the small “L” shape configuration in Judge Shaffer’s courtroom. We are squeezed to one corner. Vanessa and Tad come in and try to sit down. But Garth is in their way. Tad looks exasperated. Andrew scooches over so he is on the corner edge of the L. Garth begins to shift. Tell him not to move. Court tells Vanessa that the other side of the table is open. She moves a chair over. Tad goes and sits on the other side of the room. As far away from us as possible.

No one says hi. No more pretending.

Start by going through the verdict form. It is a monster. City then argues for discretionary immunity. Judge says: next. Andrew gets up. Judge says: first are there any other defendants who wish to be heard. Steve Puz is trying to keep his head down. Sighs. Stands up. Looks pained. Walks up to the bench. Stands next to the City’s private firm lawyer. Have no idea

what her name is. She is good at reciting the law. Even when she knows she’s going to lose. Andrew Garth and I grin as we listen to Steve argue against Discretionary Immunity application in this case. Andrew argues. Judge will not give the instruction. Lean over to Garth and say: when have you ever heard the State of Washington argue against the application of Discretionary Immunity. Never he says.

Argument is occurring on the pile of motions. In between go thru the instructions, Lisa emails another brief. Andrew is reading it. Melanie sends hers. If you saw how many briefs we have written in this case you would fall over in a dead faint.

Judge Shaffer is at her finest. Garth and Andrew whisper and plot. I am mainly an observer. Pipe in occasionally. Court breaks at noon. Mike M from AIG is sitting in the pews waiting to speak to me. Wave him into the jury room. He closes the door. Explain to him that yesterday’s horrible treatment of Mazda was upsetting. He basically says that’s what happens in litigation. Explain to him that is not normally what happens in a case like this. Transmit to him a unanimous message from our lawyer group. His face pinches inward. Like he sucked on a lemon. We are cordial. He will come back next week for closings.

Walk back into courtroom. Say bye to Andrew and Garth. A few hours later Andrew emails me. Mike M came back to see me and didn’t realize I’d left. Also Judge Shaffer is unhappy am not there. Some of the damages issues need my input. The instructions need to be done. Will probably be chewed out tomorrow.

On this 58th day of the trial, there is just no way can force myself to stay in that courtroom. Andrew is in his element. Have other things to do. Prepare for cross of the City’s expert. Figure out rebuttal. And most importantly…after taking Nala for a daylight run in the drizzle…

Walk into Chroma Salon. A converted creaky-floored house on top of Queen Anne Avenue. Luis (Loo-ees) is waiting for me. Rushes over. Gives me a hug. Immediately show him video of Liam bouncing in his bouncy chair. We coo over this. Then for the next hour and a half. In the most entertaining way possible. He gets my hair done.

Day 59

FridayJanuary18,2019

Knee high black boots over plaid pants. Lululemon racerback T. Short black jacket. Vintage red glass beaded necklace with dragon pendant. Hair is totally straight. Luis gets a kick out of ironing away the curls. Wear a hood so the drizzle won’t ruin the effect. Walk up 9. Don’t say hi. Judge and jury enter. There’s a palpable feeling in the courtroom. We are counting down.

Tad directs Mike Cynecki highway expert through a script. Power point has little icons for each of the associations he belongs to. Just like Battaglia (except without acting pompous and mean) he is extremely proud of all of his accomplishments. Puffs with pride as he details each committee and award. Reads every word on every slide. Repeats as a mantra: the bridge is safe

for ordinary travel. Tad can’t help but lead. Let him for the most part. Cyneck’s staff created charts and diagrams and math formula charts to show traffic counts and all the reasons why the Aurora bridge is not a problem.

In cross there are three main stab points: 1) The city failed to properly count cross over collisions. Since his staff made the charts he has to study them for a bit before conceding the point; 2) He compares the bridge to roads with intersections (attempting to show that the frequency of accident rate is less on the bridge than anywhere else) is apples to oranges; and 3) when he was at the bridge and took photos (which we show) the buses and trucks were not able to drive within their own lanes and that wasn’t ideal.

Judge asks most of the jury questions (thanks Jesica for typing them):

1. What is a high crash rate per mile

2. 1.5 to 2 deviation is above the average, what would you say that is correct?

3. Is there a crash rate number that would demand engineering intervention, you said none is that correct

4. Is there a number you would no longer deem as reasonably safe

5. Why did you not take data for 3-5 years before the crash and provide it to compare and contrast

6. If another witness got a crash rate for the 5.6 mile bridge at 3 would that change your opinion

7. Are you certain that the other state averages you provided are not Cal Trans numbers, please explain

8. Were they calculated the same way

9. How much shy distance from median on north and south

10. Do you know how many vehicles drive near the barrier vs in the far lanes

11. On page 29 of exhibit 40244 it looks like the duck is ½ an inch shy of exceeding the max distance

12. Did you read RCW 46.44.010

13. On page 5 you listed seismic retrofitting - are seismic retrofits ordinary?

14. What is more probable on a given year: A seismic incident or bus running off the bridge

15. On page 15, is 1.5 to 2 or more different than 1.5 or more

16. When you took a look at lane removal options what numerical analysis did you use that show a median barrier would create dis-benefits

17. On page 26 you listed 10 states that don’t use Cal Trans, is that a complete list?

18. Was the crash rate of 2007 for Washington for all roads or state highways or something else

19. When calculating the crash rate how is a continuous road way sampled for crash data to calculate standard deviation

20. How does that sampling methodology compare to picking a spot

21. What effect does that sampling methodologist have on meaningfulness of comparing the crash rate of bridge to state wide averages

He does his best to answer them. City rests.

Plaintiff calls Dr. Tapia back for rebuttal. Remember that chart we had Bill Partin CPA fill out re present value of earnings and net discount rate (his writing is in blue) Ex. 865:

Well, he did it wrong. So Dr. Tapia corrects it like the good professor she is. Watching her white board all of his mistakes is pure gold. All four defense lawyers throw barbs at her which she ably deflects. Like Wonder Woman bouncing bullets off her arm bands.

Jury is dismissed an hour early. We trudge downstairs back to Judge Shaffer’s courtroom. Pull out fatsumo orange. Peel. Plot tasty morsels in mouth. Scott says: can I have a piece. Say: yes…have not even poisoned it. Other defense lawyers gasp in horror. This is how seriously they take everything. Give three segments to Scott.

Deal with more jury instructions. Set the schedule for the final week. Finish testimony Tuesday. Judge announces final schedule. She will hear motions and complete instructions Wednesday. We can then finish the case.

Say: your honor if it takes two hours for you to read the 100 pages of jury instructions it is possible we will not finish Friday.

Judge: Remember what I said about droning on during closing. How long will it take.

K3: Was hoping it could be done in 3 or 4 hours but it probably can’t be. There are two many jury instructions to explain. And there are 40 separate plaintiffs.

Judge can’t argue with that. Asks the defendants how long they will be. JackS says 45 for RTDI. Pat says same for RTDS. Puz says 40 minutes for State. Tad says 30 for city.

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Closing will be Thursday/Friday.

Karen Day 60

MondayJanuary21,2019

We are all crabby.

The jury walks in. And they are done. The case should have been over last week. But it wasn’t. We are one month ahead of schedule. Yet their expectations changed as soon as Judge Shaffer told them the good news that we would be done with testimony last Friday. They can’t talk to us. But their body language is clear. They want to start deliberations. Enough lawyer talk.

Dr. Pfeiffer the barrier expert has flown back in from Florida to address a few points raised by the governments. He walks back to the stand. Direct goes smoothly and is done in just over 15 minutes. Three main points: will a median barrier increase accidents, will severity be reduced, and how does one go about storing the zip barrier machines. Nice and tight.

Puz pulls over the podium and lays down a multi paged typed outline with pictures imbedded in it. He wants to talk about a whole lot of other stuff. Asks Dr. P repeatedly about things that are outside the scope of the very limited rebuttal. This requires me to continually object. Though Judge Shaffer sustains most of them, Puz is creating a mess. He is arguing and pretending to mutter under his breath but loudly enough for the jury to hear. And generally trying to implement bully mode. Tad follows and does the same thing. He really wants to get in a new bit of information and when he can’t. Requests a sidebar. Throws another Tad tantrum. Vanessa can’t stop coughing to the point where tears are coming out of her eyes. Judge Shaffer is not crabby. She’s having a grand time keeping us all in check. The City wants so badly to get in stuff that they should have brought in during case in chief. Too late now smiles Judge Shaffer shaking her head. We return to the court room. In front of the jury they keep trying. Objection – sustained – becomes a chant. Cross lasts an hour. Jury has only a few questions.

Break at 10:20. Next up is our last witness. We could not have an expert be the last. Phuong Dinh has returned. She is going to rebut all the defense experts who have tried to underplay the reality of what she is faced with. She is perfect. Only Scott decides to cross her. He starts to act jumpy and aggressive. Recollects himself. Dials back. Respectfully asks her something inconsequential. We rest at 11:00. Judge S tells the jury they are off until Thursday at which time she will read instructions they will hear closings and then begin deliberations. Two of them will be selected and removed as alternates. They do not blink as they listen to her. They file out. Judge starts packing up her gear. Motions and jury instructions for the rest of today and tomorrow. Then on Thursday will close.

Say bye to Andrew. As usual he is arguing the motions and instructions. Walk with Jesica to get an uber. Need to work on closing and not get distracted by more briefs. The defendants have unleashed a flood of more briefing. CR 50s everywhere. Curative instruction briefing.

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Anything they can think of they are throwing it down. Judge Shaffer handles this barrage of paperwork without complaint. Clearly she is a speed reader.

Uber comes. Ask Jesica what she thought of Pfeiffer. She doesn’t think it went well. Maybe we shouldn’t have called him. I feel this way too. Andrew thinks it went fine. I feel this way too. On the one hand we needed him to deal with stuff that the governments came up with at the last minute. On the other hand it gave them another opportunity to whack at him. On the other hand he’s good. On the other hand the real bad guys are the ducks. Back and forth the pendulum of my opinion swings. Settling on the certain fact that trial ended strongly by focusing on the simple human truth embodied in Phuong.

Day 61

WednesdayJanuary24,2019

Wake up. Take Nala potty. Feed her. Sit down at kitchen table. In front of laptop and monitor. Plug into the server via VPN. Don’t move for 16 hours. With the exception of our afternoon run.

Work on closing.

Exchange massive amounts of email with the trial team.

Andrew is at the courthouse. Finishing up the last of the thousand motions and jury instructions. Judge mentions something about me being there. And that she hopes I will finish in four hours. Four months of trial. Forty plaintiffs. Four does make sense. But can it be done.

Day 62

ThursdayJanuary24,2019

Jesica has marked off our half of the courtroom to reserve it for cocounsel clients, members of the law firm, and people who want to cheer us on. Defense counsel ignore the signs and line up behind Jesica.

Andrew shows me some of the transcript from yesterday. Since I tactically missed it. They are complaining about the second screen. Conspiracy theorizing am trying to block their view of the jury or vice versa. So the judge tells them to move over next to us. It’s even pettier than that though. Remember the lego wall we built to keep them at least symbolically on the other side. Well they have been stressing about that wall ever since. They start to complain to the court that I might do something with legos during closing. She shuts them down. Seriously. They are in a tizzy over a screen and legos on the eve of closing. Gawd.

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There are many faces in the courtroom. Cannot quite focus on them. Am zeroed in on mission. As walk up the aisle see Alysha. My mother’s heart gives a happy beat.

Drop off bag. Start hooking up gear. Cord on the projector is not long enough. Jesica is befuddled. Cannot think about it. Must keep calm. She figures it out. Andrew is in the library working on the verdict form. The numbers in the grid done yesterday were not quite right. Had him double check them and so he is now revising them. Everything has to be in order.

Judge Shaffer enters early. How long will we go. We must be done Friday even if the jury is kept late but today we have to end on time. Should we carve a little from the lunch break. She looks at me expectantly.

Have been working on closing but never actually practice it. Have no idea how long it will take. The number four sounds good enough, We agree to take 15 minutes off lunch.

Jury files in. Do not meet their eyes. Have not met their eyes ever. Judge’s orders. Except for when on the courtroom stage. Judge Shaffer reads the instructions. This takes 1 hour and 20 minutes. There are instructions on regular things. Then highway design, product liability act, enhanced injury, common carrier, and of course different sets of instructions for 40 plaintiffs. The defense lawyers are squeezed tightly against our small corner. Can feel them watching. Wanting to get a preview of what is to come.

Oblige them by doing nothing. Computer turned to blank. Sit still. Honor Judge Shaffer as she reads the instructions. Listen to them for the first time all together. The words spoken calmly clearly and with the inflection of a judge who takes delight in her job.

Ms. Koehler she says. Stand up. Greet everyone. Realize the correct slide is not yet on the computer. Think: must work on telepathy technique. Expect everyone to read my mind. Try not to stare too hard as Jesica pulls the slide. This is not her fault but mine. Could start without it all being in order. But then it wouldn’t be right. There’s nothing wrong with waiting 30 seconds to get it right. My dear friend Judy Shahn is in the court. She is a voice coach who has taught trial classes with over the years. One of her lessons is not to start until you are centered and on top of your breath. And then just like that the moment passes. The two screens are filled with the two boards of all of our plaintiffs. Begin.

Two weeks ago while running with Nala came up with the idea of how to structure closing. It had to do with the proximate cause instruction and the defendants’ increasing numbers of legal briefs trying to insert instructions that would confuse that already poorly/legalistically worded instruction. Two words have always made sense to me when explaining the concept to juries: but for. Passing through Kerry Park. Watching the twinkles of the city. Listening to Madonna

Live don’t ask me why but Cher popped into my mind. Her song - If I could turn back timebegan playing itself in my head. This all led to the opening that was delivered today. Step one was to listen many times to Cher’s record. Step two was to build a PPT in reverse. The first slide was the recall notice that was issued after the incident. The second slide was the NHTSA consent decree issued before the recall notice. Ryan even reversed the video of the duck hitting the bus and the students getting on the bus. Everything was in place the night before closing except for one thing. Took Cher’s lyrics and re-wrote them. Was going to sing to the jury but Alysha interceded: don’t sing mom. And that was that.

Read them from a slide otherwise filled with beautiful Claudia Derschmidt skiing in Austria.

Pull out a brass clock. And turn the arms so they are going in reverse. If only this. If only that. If only... When that is done we go through key jury instructions. To explain the government’s duty recite a small poem called: A Fence or An Ambulance. It was written in 1895. Paul Luvera gave it to me after reading one of the juror’s questions. Then it is time for lunch. Jury files out.

How are you doing says Judge Shaffer wanting assurances. Have no idea how long it will take to go through 40 plaintiffs. Tell her we are right on schedule. She never pressures me exactly. She wants us to be on time. But has also said she will not restrict us. See Sol, my son in law over to the side. Happy to see him. At the same time Cristina comes up behind me. Turn around to greet her. She’s holding Liam. This child was born two weeks before trial which means he’s four and a half months old. Oh my baby. Hug and coo and kiss. Anne my other paralegal comes rushing forward to see little darling. Spend the rest of lunch time pretty much hugging on my children and grandchild and saying hi to so many good friends and co-workers who have come to show support. Greet co-counsel who have brought their office mates. Or flown in. Do no more work on closing until Andrew grabs me and says: do you want to see the

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verdict form. Sounds like a good idea since we will be going through it. We huddle. Make some changes. Eat remainder of delicious Macrina orange hazelnut pinwheel that Alysha bought for me this morning. Plus insufficient hummus cup.

Jury files back in. This last two and a half hours will be about damages. Talk about the symbolism of money damages. What it represents. Walk them through the symbolism of my outfit. This jade necklace symbolizes heart. White jacket for our plaintiffs. Black skirt with white lines down the front that looks like a roadway – for the bridge deck. The lego wall - a barrier. The toy duck boat that runs into the barrier (and doesn’t break it). The little lego people that fly all over heck from the crash. These symbols all have meaning and so will the damages that are involved in this case. Go through forty plaintiffs. The special verdict form.

And it is ten minutes to four. Have ended 10 minutes early. This makes Judge Shaffer especially pleased. Jury files out. Mike King preservation of error counsel is standing. His back in front of my face. The defendants object to a statement I made that they claim could have been phrased to invoke punitive damages. Pat then objects to a statement made something to the effect that if the jury didn’t award enough damages that could further harm the plaintiffs. They want curative instructions. Judge Shaffer lets me say my peace. Then tells them no. In the most eloquent and descriptive way. She has real time. She listened to every word. That’s not what happened. No.

We pack up. Pause for a large group hug. Then race for the uber.

Trial day 63

Friday January 25, 2019

JackS has moved the podium right in front of us. He greets the jury, court and counsel. And is just too close. Pick up laptop, water bottle. Move to the first row of the gallery. Watch his show. His style is the same as opening. But louder. His words punch their way out of his mouth. Frowning intense face. Right hand making chopping motions. He is angry. His client didn’t do anything wrong. What planet did he just come from. Sit there as still as can be. Trying not to roll my eyes. When he starts talking about our clients, feel myself start to stiffen. Taught. Can’t stand him saying their names. Write a note: listening to him talk about our clients makes me so MAD. And then he does something quite odd. After exclaiming over the audacity of my giving outrageous numbers – he does the same for a few of the plaintiffs. His numbers are the same as the insurance company last offered. Interesting.

Pat settles herself into the podium. She takes an exact opposite tact in terms of volume. She is calm measured soft spoken. She like JackS take the position of blaming each other in a round about fashion that we can all see through. She may be more polite about it but her client’s failure to acknowledge any responsibility is no different. She takes off where JackS left off and talks about our clients again. My reaction is the same. Am totally offended simply listening to her say

their names. Then in sotto voce she talks about the Derschmidt boys. A if she cares. Write a note: crocodile tears.

Steve Puz is up. All of the defendants have said they will take 45 minutes. He takes 2.5 hours. Judge Shaffer does her best not to become agitated. Puz spends the first hour and a half restating our liability case against ducks. This is as long as I spent. He argues it more loudly. Arms chopping the air. Pacing. Growling at times. The last hour he talks about how the roadway did nothing to cause the mechanical failure in the duck. The last 10 minutes he hacks away at the damages claims. And ends by telling the jury that plaintiff counsel will end the case by showing the crash video and doing other grandstanding type of things.

Tad Seder sticks to government liability. He makes one fairly large mistake that probably has Puz ready to blow a gasket. Tad is taking the jury through the verdict, tells them to mark no on city and state liability, but if they go with yes then 3 percent for combined negligence is supported by the evidence. Nice.

All in all the defendants use the same techniques. Summarize data points. They even project blurbs from the trial transcript and highlight them. This expert said this. That expert said that. You heard from so and so that. Oh and Dr. Olson and Tony Choppa billed a million dollars. And most of the plaintiffs are healed. And HaRam was never going to be a doctor. And you should just double the amount of medical specials for some. It is all a rehash piled together.

Am taking notes while all of this is going on. After each oration. Erase most of the notes. Add notes. Erase them. Add. Erase. Tad finishes at 3:45. Judge Shaffer calls for rebuttal. Andrew helps me pull the white board forward.

MS. KOEHLER: Ladies and gentlemen of the jury, it

13 is hard, I have to admit, to listen to other people's 14 versions and not want to come up to you and bullet 15 point every single thing that we disagree with, some 16 things very vehemently, but that's not what I'm going to 17 do.

18 I am not going to respond by bullet point. These [Writing on White Board]. 19 are the words of one of the original freedom fighters 20 of the 1960s… If not us, then who? If not us, then

21 who? If not now, then when? And what we just heard 22 was a lot of not us, not us, not us. Or it was

23 nobody's fault. What happened? If you write no in any 24 of the instructions, then it won't be their fault. If 25 not us, then who?

1 If not now, then when? When? When? When were you 2 going to get that axle housing fixed? If it was not 3 us, well, then who?

4 And so we get down to the end of the case, and, 5 guess what? It's you. You are going to decide for 6 everybody in this case, for everybody that's been

7 watching this case, for your community, for our 8 constitution, for our judicial process, you are going 9 to make the decision, and it's a very important 10 decision. Your decision will impact over 40 people and 11 their families. It will impact the State and the City, 12 Ride the Ducks International, and Ride the Ducks 13 Seattle.

14 So after listening to us for four months, and taking 15 as diligent notes as you have and asking as intelligent 16 questions as you have, and keeping your eyes open even 17 when we were so mired in the details… fight for what 18 you know is right. This was not a small, little thing

19 that happened. Let your verdict ring with certainty.

20 Let the people that this crash hurt and their families 21 of those that were killed know how bad the damage was 22 done to them. Fight for them.

23 MR. SNYDER: Objection.

24 THE COURT: Sustained.

25 MS. KOEHLER: If it wasn't them, it's you. If it 1 wasn't then, it's now. Thank you very much for giving 2 us all of your attention. Thank you.

Andrew the bailiff then turns the crank on the wooden box. He calls out; jurors number 4 and 5. Turn to look. It is unbelievable. Don’t want to breathe until Judge Shaffer stops talking. If I was given the choice of excusing two jurors – they would be 4 and 5. After the jury leaves turn to Andrew and say: how did that just happen. How was that even possible. And he says: it was meant to be. We are on the right side.

Judge Shaffer thanks us all for putting on the trial as we did. We thank her, the court staff and reporters. She leaves the bench. Andrew, Jesica, Debbie, Garth, Melanie, Lisa and I form a circle. And hug each other.

Now we wait. Jury Watch 1-5 February1,2019

Monday. Am back at the office. Standard non-trial outfit. Lululemon tights. Tunic. Booties. Nala in tow. Make the rounds. Catch up with Brad and everyone else who’s in. The clerk Mr. Ceja is emailing the parties…please get the big exhibits out of the courtroom…need to reconcile the redactions on other exhibits…whose boxes are those…the Styrofoam needs to go too. People are sent to photograph the axle housings before they’re moved… Debbie calls court services they will be happy to clear out the cardboard which is from our big charts. $120 an hour. 3 hours minimum. Deb and Ryan go do it themselves. Lawyers are stipulating as to what is going and what is staying. Enough hustle and bustle to almost feel like we’re still in trial. Though completely mundane.

Leave early. Run with Nala in the daylight. Crest the hill. For the first time let mind wander to the jury. Wonder how they are organizing their review. That’s about it. Don’t try to guess who the presiding juror is. Don’t play mental games. Just wonder for about thirty seconds. Then tuck it away.

Tuesday. Traffic is hideous. Am on way to Kirkland to watch grandbaby Liam for the morning. During trial have been limited to seeing him once on weekends. Arrive. He’s asleep. Sol shows me how to warm his bottle. No do not put it in bowl of hot water. Or nuke it. There is a machine. You put the bottle in and close the top. Push this button. Then this second button. And then it will beep. And you open it. Amazing. Work on computer next to ipad screen showing black and white version of the baby sleeping. Can hear his baby coos. He stays that way for most of the morning. Finally wakes up. Go put bottle in machine and hit the buttons. Hustle over to crib. He smiles. And the world is right. Give him a bottle. Play tummy time. Sol arrives. Play just a little more. Drive home. Work a little more. Run with Nala. Don’t think about the jury much at all. Other than to be happy that we haven’t heard anything yet. We shouldn’t hear anything until at least Wednesday. This seems right.

Wednesday. Wake up feeling like crud. Oh no. Have the crud. During the whole trial was totally smug about not getting sick. Judge Shaffer was sick about half of the time. There was always at least one defense counsel who was sick. Andrew Jesica and I chalked it up to the lego wall. It had magical powers that kept the crud on the other side. Now that the wall is down the crud has caught me. Go nowhere except to let Nala out. Lay like log in living room. On chaise by the window. Do not run. Take a Nyquil tablet. People are emailing me about the jury. Have you heard anything yet. How long do you think they will take. Even a reporter asks: when do you expect the jury will have a verdict. Um how should I know. 4:00 comes and go without any news from the jury. Don’t think anything about it other than that’s a good sign.

Thursday. Wake up and feel cruddier. Take a Sudafed. Need to get soup. Call Michael who also has the crud. Drop off some cough drops at his house. Go to Whole Foods for soup. Return. Lie like log in living room. Nala is totally fine with this whole arrangement. She cuddles up. Twitches occasionally with doggie dreams. Computer is on lap. Multiple people want to know what’s going on with the jury. Don’t know. Have no idea. Am trying not to think about it. Work on other cases. Andrew calls: are you concerned we haven’t heard from the jury. Me: they are an extremely thoughtful jury. Am sure they are going through everything very thoroughly. Plus there are 40 plaintiffs. Do not run. Cristina has a bag of French fries delivered

to me. As well as mucinex. The French fries are the better medicine. This is the first day have allowed self to feel a little anxiety about the jury. What if they are taking a long time because they are fractured. What if they don’t compensate the plaintiffs enough. What if…Apply shut the steel door technique. Put the jury out of mind. Thank heavens am able to compartmentalize. Cough my way to sleep.

Friday. Wake up. Wonder if am cured. Am not. Stand up. Light headed. Need to drink more. Cough sounds ugly. Take a mucinex but no more sudafed. Need to get out of house. Maybe that’ll help. Arrive at office around 10. Lululemon leggings, flower tunic and above knee boots. Tell everyone to stay away. They run from me. Lock self in room with Nala who is immune. Scan email. Nothing from the court. Because maybe the jury reached a verdict last afternoon but wanted to sleep on it. Nope nothing. Conduct co-counsel meeting where everyone else is in the conference room v. me on speaker phone from my office. Scan email at noon. If they had a verdict they would tell the court eat lunch and return. Nothing from the court. Okay so they are not done. The latest they would tell us would be 2. Because Judge Shaffer already explained to them she will allow counsel to attend including Puz who is in Olympia. 2 comes and goes. Leave at 3. Arrive home. Look at cell phone email. Nothing from court. Okay by now if they were going to have a verdict they would have said so. At best they have a verdict but will wait to think about it over the weekend. Toss on sweats. Email with Beninger who has the next duck case teed up to be tried in March. He had to argue motions at 2. And won them. Ask him if he heard anything from the jury. He says only that they asked for a break and counsel were told to turn around and not look at them. Otherwise not a peep. Fine then. Will put jury out of mind for the rest of the weekend.

Jury Watch 6-8

February4-

6,2019

Monday. Wake up. There is snow. Look up KC Superior Court on twitter. Courthouse is closed. Email and text everyone in office: don’t come in. We all work from home. Til 2:30 when the electricity is lost and the virtual office goes dark. Tweet with City Light – they’ll get to us by 7. Ryan arrives shortly after 6:00 p.m. Restores office.

Tuesday. Wake up. The snow is now ice. Look at twitter. Courthouse will start 2 hours late. Take Nala out. She goes fast because it is totally freezing. Look at flower pots by entry. Grimace. Just replaced the paper whites with dainty primroses. Now frozen dead. Email from Scott Wakefield to Mr. Ulmer the bailiff: is the jury coming in today. Mr. Ulmer confirms: jury will come in between 10:30-11:00. Go about business. Occasionally scanning email to see if we are being alerted to anything. We are not.

Wednesday. Wake up. Ice is only half coating the roads. We are back on schedule. Drive up to First Hill for medical appointment. Should have happened a couple months ago. But life was stayed pending trial. Visit Alysha in her new place. It is being remodeled. You have to zip open the plastic sheeting to get into the dining room or kitchen. 100 year old brick wall is now exposed. Ooh and ahhh. Drive to office. Client meeting. Cocounsel meeting. Meeting with Cheryl and Travis and Fred. Go about business without thinking at all about the jury still being out. Clearly have reached a new level of maturity. Am able to relinquish all control. Calm yoga

like façade is now internal as well as external. Marvel at peace and serenity emanating from pores. 2:30 conference call with Brian and potential expert. Email with criminal lawyer friend Todd who has paused to wish us well. Me: how long was your longest verdict. Todd: three and a half weeks and it was the hardest. Go to wsba.org website looking for one ethics credit. This is my reporting year. Cynthia just reminded me am 1 ethics credit short. Fill out form. Listen to 1 hour to ethics talk. It is now 4:15. Another day of court has ended. Get text from Michael. Last surgery done. Is on way over. Begin making salads for dinner.

Wander past computer which is still on kitchen table.

4:09: Email from Bailiff Ulmer:

Good afternoon,

The jury has indicated that while they are still deliberating, they anticipate reaching a verdict tomorrow afternoon. Judge Shaffer therefore asks counsel to come to court, Courtroom W-829, at 1:30 PM.

Best regards,

Stomach hits floor bounces up and slaps me in the face. Try to catch breath which is running around the ceiling. Hands are shaking from a combination of adrenaline hope and fear. Forward email to cocounsel and clients.

Tomorrow.

Postscript – after the verdict Thursday February 7, 2019

I wanted to take a moment to thank the members of the AAJ motor vehicle listserve and those who are on my trial diary list. Thank you for letting me spam you for the past 4 months. Writing the trial diaries was a cathartic exercise. I needed to close the chapter of each day before opening the chapter of the next one.

There were many untold stories behind this trial. Three of which I’d like to share with you before signing off.

First - how we kept our group together. We started off as a group of one but kept building. Cocounsel decided to band with us. New clients found us. We did this by word of mouth - without using runners or targeted advertising. A decade ago I served as president of the Washington State Association for Justice. Gerhard Letzing then the Executive Director taught me to lead with positivity. He showed me how important it was to build consensus and follow process. We used these principles from day 1. Respected every client no matter the size of their claim.

Praised our co-counsel and thanked them at every turn. Our group faced many challenges –particularly when most of the other plaintiffs began to settle their claims. But the steadiness of

RTD Aurora Bridge Trial Diary - 179

our trial team – Andrew, Jesica, Debbie, Garth, Melanie, Lisa - was a constant source of reassurance. This case could never have been put together if not for the excellence and dedication of these team members. (Thank you also to Ryan and Mike our IT/set up crew) and Cynthia (accounts).

Second – how we turned down settlement offers. A separate federal court lawsuit was filed by the ducks over coverage. Even so we were not told about all of the ducks’ insurance policies until after receiving an anonymous email tip. The games played over coverage went on for over two years and only resolved in the months leading up to trial. Mediation was a fiasco that resulted in sanctions being assessed against ducks international. After that AIG decided to try to court us but that went nowhere. Their next move was to try to pick off the biggest and most sympathetic cases – in particular the students. A little over a month into the trial one of our late joining co-counsel settled 4 cases for $8.25M - $7 of which was for the wrongful death case of Ivan Putradanto. Then about a month later we determined it prudent to partially settle the wrongful death case of HaRam Kim for $4M because the ducks offered more than the net economic loss to the estate ($3.1M)– which was the equation we were limited to – with no consortium loss available to the loving parents for the loss their 20 year old daughter. However the Kim parents stayed in the group to the end of trial to participate with the rest of the plaintiffs so the jury did not know of that settlement. This is how we started the case with 44 plaintiffs but ended with 40. Instead of separating the plaintiffs through targeting the large cases with offers, AIG bonded them even more tightly together. After realizing the group would not splinter the insurer offered a high low for the remaining plaintiffs: $30/15M. So any verdict would be capped at $30M but if we lost the low would be $15M. Our group agreed this was a low-low. We never responded to that offer nor to any of the other offers other than those that were accepted above.

Third – The jury was brilliant. They kept track of 40 separate plaintiffs. The defendants objected to giving the jury our photo charts of who was who and objected to providing the body diagrams. Without any visual summary, the jurors put their heads and notes together. They navigated 100 pages of jury instructions and 49 questions on the special verdict form without once asking the court a question. Throughout the trial, whenever we became worried, we would say to ourselves: trust the jury. And thank goodness we did. After the verdict the jury met with all the lawyers for over an hour. They were a bright eyed and lively group. They told me:

1. They called JackS “Big Red” due to the color of his face when he yelled at them. They did not care for this. Felt that with such a mature group of jurors he should have changed up his approach. They liked all the different lawyer characters. And how occasionally there would be levity even in such a serious case.

2. Although the trial spanned four months, they felt it was interesting and engaging. They learned a lot. And the stories of all of the plaintiffs – well they didn’t know how we could deal with so much tragedy on a regular basis.

3. The two jurors who asked the vast majority of the brilliant questions were #2 and 3 with the latter being the Presiding Juror. All of the jurors felt valued and honored to fulfill

their roles. They all felt respected by one another even when they disagreed. There was never a raised voice.

And finally, each day when they would file into the jury box they were interested in what I was wearing. In particular my shoes.

Thank you all for your notes and well wishes.

karen

Aurora Bridge Trial Diary -