Bryan and Jovan Maldonado came to the mainland United States from Puerto Rico to make better lives for themselves. They found work on a telecom construction crew – but at their very first job, swapping an antenna affixed to a Delaware water tower, they were killed when the boom lift they were on tipped over in high winds. To get justice for the brothers’ family, the trial team of Mike Zettlemoyer and Dave Kwass listened to focus group jurors who revealed what made them really mad about the case. “That was when we began to recognize, ‘Oh, wait a minute. This is what the case is actually about,’” Dave explains to host Brendan Lupetin. It wasn’t wind gusts or training failures. Tune in to find out what that was and how the team secured $18.2 million.

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1. After arriving in the mainland United States from Puerto Rico in 2020, the Maldonado brothers joined a telecom construction crew. Bryan’s 22nd birthday was November 2 – the day that he and his brother Jovan were killed at their first job.
2. The boom lift the brothers were on toppled over in high winds. The trial team's engineering analysis revealed that gusting winds created a resonance effect — like pushing a child on a swing in rhythm — that amplified movement in the 40,000-pound ultra boom until there was no point of return.
3. The defendants were Nexius Solutions, the general contractor, and Myndco, the firm responsible for training the crew.
4. The trial team found that Nexius had sent a replacement aerial lift to the site after the crew mistakenly believed the first was defective. In fact, the machine was locking them out because the crew was overloading it, a direct result of inadequate training.
5. A Nexius vice president shut down aerial lift work across the Northeast due to a National Weather Service wind advisory anticipating gusts up to 45 mph — but the region where the accident occurred was never contacted, and the work continued.
6. Mock jurors in a focus group were most angered not by the training failures but by the company's selective shutdown decision.
7. The jury awarded $18.2 million, including $2.5 million in mental anguish per parent per son and $1.5 million in pain and suffering per son.

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Our boys were trapped up in that aerial lift in the platform 120 feet up in the air and unable to descend.

How are we going to play out how I think that this actually happened, which involves necessarily saying my poor guys didn't know what they were doing?

Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of Just Verdicts for just cases. Join us for in- depth interviews and discussions of cutting-edge trial strategies that will give you the keys to conquering the courtroom. Produced and powered by LawPods.

All right. Welcome back to JustVerdicts and I'm excited to have with me Mike Zettlemoyer. I'm going to say you first, Mike, since Dave Kwass has been here so many times in the past. So I want the spotlight to be more on you, Mike, than Dave, because as much as we like Dave on the show, people got to be getting sick of him being a third time guest with yet another verdict. But Mike in particular, thanks for being here today, man.

Thanks for having us.

And of course, Dave, good to see you again.

Good to see you, Brendan. Thank you.

So congrats to both of you for a huge verdict down in Delaware we're going to hear all about today. Maldonado versus Nexius and Mindc. Before we get into that, Mike, real quick about you, I was reading a little bit about your background. So seems like you have an engineering background. Maybe lend yourself to subject matter expertise on this type of a case which involved a boom collapse, right?

Yeah. So I guess it started as a kid. My dad was a physics teacher and I was always interested in science and that led me to two engineering degrees and I worked for an engineering firm before going back to school, got my law degree and then spent a decade representing engineers and architects defending them. Variety of matters, including personal injury. Before then, seeing the light and being pulled away to join Dave Kwass here at Saltz Mongeluzzi. So it's been fun getting to use that background and skillset for the kind of cases we handle.

Was there a particular case or was it just kind of critical massive cases adding up that caused you to quote see the light and want to switch over to the plaintiff's side?

No, I mean, I think I always wanted to make that pivot at some point someday. I was always motivated at least in part by my dad suffering an industrial type accident, which was something that I saw him at least in my mind struggle with and didn't really fully appreciate it until getting to do that kind of work. And I just thought that my skillset could be really better used helping those families and people that are injured in industrial workplace accidents. I mean, one thing that I know how to do is go hard outwork people. So it's been nice to have the handcuffs off and have the resources of the trial attorneys over here at the firm and how we're able to tackle cases.

Was it Dave in particular that lured you over to Saltz Mongelluzzi or is it others in the firm?

Well, first of all, the firm has the reputation it does for good reason, but specifically Dave, I mean, best trial attorney in the country in my opinion, my not so humble opinion. So the opportunity to be mentored and work with him and learn from him was something that I was not going to pass up.

Now with that labeling, Dave, I can understand why you were telling me ahead of time that Mike is the best trial partner that you've ever had to go in and try cases with. So as I was saying beforehand, clearly you guys have turned into a dynamic duo here.

Well, that's absolutely right, Brendan. And what Mike was saying is actually understating it, not when he was talking about me, when he was talking about himself. One of the cool things about Mike Zettlemoyer is that he has a motor that's not like anyone else I have ever met. In his non-work life, he is an ultramarathon runner and he is able to just keep going and going and going and not show signs of fatigue and very, very rarely to show signs of stress. His work ethic is absolutely unparalleled and it turns out that doesn't mean that he's not skillful, he isn't bright. He's definitely become my best friend over the three years now that we've been working so closely together. But what Mike brought to the case was even though there were local Delaware lawyers in the case, it was very, very soon into the trial that Judge Jones began to look to Mike for the answers and look to Mike for wanting to understand where things stood on various issues.

So it's not just that Mike has a relentless appetite for work. It is also that what comes out of his mouth is just like truth in all caps and it did not take long before Judge Jones was literally looking to Mike when he had questions about various issues. And in fact, Judge Jones several times on the record complimented Mike on how hard he was working, how diligent he was, how prepared he was, and how he was helping to make the trial go smoothly for everyone, including the judge and his staff and including the jury.

Mike, I was reading that, what Dave just mentioned, that in addition to your work ethic, you're ultra marathoner and just to get a touch introspective, do you have a sense on what your driver is for that level of, as you said, going hard, whether it be ultra marathoning or here working up cases, trying cases?

I just think you're either doing something or you're not and whatever's in front of me, I try to give it my full attention and tackle it to the best of my ability. With respect to ultra running, that really kind of just started from a place of curiosity and wanting to explore and experience new things and try to really find out more about yourself. And in order to do that, you have to embrace uncertainty and discomfort. And I think those are characteristics that great trial attorneys share because a trial is nothing but hard work and embracing uncertainty and learning how to troubleshoot, which is essentially what happens during a hundred mile race.

Now, how many trials have you guys tried together?

Is

It four or five, Mike?

We are four now.

Yeah. And it's not all glorious we get to come on just verdicts and grow about how we did. We've come in second also and it's the kind of thing that you remember and that you hate, right? I mean, it's like as much as we love winning, we hate to lose and it's really, really, really difficult when that does happen, but it's nice when it all comes together.

Well, two things on that. I mean, on, if you're not coming in second place occasionally, you're not probably trying enough cases. And number two, the point about how much we hate to lose, I've seen from trial lawyers' perspective, two sides of it that I think some people, and I probably fall more into this category, are sort of driven to win and what comes from that and whether that's healthy or unhealthy, we could have a debate about that. And others, it's almost that they just can't stand losing. The idea of losing a case is such a huge driver that that's why they're such good trial lawyers. I mean, do you guys have, if you sit back and think about what truly motivates you, is it more the win for your clients or is it that sort of relief of not having lost?

I'm definitely in the latter camp. I'm definitely the hate to lose guy. Mike, how do you think of that?

Yeah, I mean, I actually think that I'm probably more of the former. I mean, the thing that would be alive is not having done everything I felt like I could possibly do. Beyond that, there's nothing more. It's not in my control at that point. The outcome is the outcome. We don't create the facts. We try to use them as best we can and argue those facts and put on a great trial. But so long as I feel like I've given it my everything, I'm pretty satisfied.

Yeah. I think that process over product as sort of Nick Saban talks about in lots of other people and maybe also that the journey is better than the destination as a trial lawyer kind of fits in there. So let's talk about the case a little bit or a lot bit. Terrible case, crazy scenario in that your clients, there were these two young men. Were they brothers? Yeah.

Why

Don't you guys tell us a little bit about the Maldonado brothers and sort of their background and then what got them into this precarious situation in the first place?

Okay. So yeah, Bryan and Javon brothers, Bryan's birthday was November 2nd, which was also the date of the tip over and his death and Jovan's birthday was the next day. So Bryan was 22, died on his birthday and Jovan would have been 24 the next day and they came from Puerto Rico to the mainland to make a better life for themselves to make some extra money with the dream and hope and goal to return home, bring the family together on a property that their grandfather had left them and start their careers, which was going to be as a machinist and as a barber. So that was their goal and they were hired and employed for 14 days before they were killed out on their first job site.

Who were they employed by?

So they were employed by Velex, which is a company within a group of sister companies under this Infinex umbrella and Infinex is in the telecom space. So what InfiniX would do through its sister companies is get contracts with T-Mobile or AT&T or Verizon or name your telecom company and then do antenna swap outs or new installations on cell towers like you see or water towers, wherever an antenna can be fixed, that's the work they would do. Velex was essentially created to be the boots on the ground, men out in the field, women out in the field doing the actual labor.

And what were they doing at the time this all happened? So I mean, the defendants are Nexius and Myndco. I'm assuming that Velex had some employer protections due to comp and then you've got these third parties that have responsibility. So talk to us about what the work site was, what these two guys were trying to do and how Nexius and Mindc played a substantial role in what happened.

Yeah. So Nexius, you could think of Nexius as essentially the general contractor, the prime contractor of this project. They held the contract with T-Mobile. The work was to do an antenna swap out for antennas that were affixed to a water tower just outside of Bethany Beach, Delaware, right there on Coastal One. If you've ever driven down through that stretch, next time you do look to your right as you're heading south, you'll see it, you can't miss it. And those antennas were affixed about 135 feet of the water tower. And so the work hold for the use of an ultra boom is what we call it. So an aerial lift, and in this case, an aerial lift that could have a maximum reach of 135 feet. The other defendant, Myndco, was effectively the InfiniX training arm of the company. So whether you were a Nexius employee or a VELEX employee or an employee of one of the other sister companies within Infinex, you were sent to Myndco to receive the training that you needed or you were supposed to receive the training that you needed to do the work.

I've been looking at some of these photos and so you've got this water tower, which is basically obelisk with a gigantic ball on top for lack of a better description. Am I guessing that there seemed to be around the pillar going up to where the water presumably is held On that is where these antennas were located that they were trying to either install or replace?

Right. And there are a few hundred pounds. It's an interesting point of discussion because there are proper ways to do this work if you're trained using a capstan winch and hoist lines to help transfer that couple hundred pound antenna load up there without overloading your platform or creating a tip over type scenario. Here, what the folks in the field were doing, the VELX crew, is that they had an aerial lift out on that site and they were eating to use it to transport the antennas up to that location and do the swap outs. In the process of doing that in the few days before our actual November 2nd tip over, they were running into issues where the aerial lift itself was locking them out. What I mean is the ultra booms, especially the ultra boom category of the aerial lifts are big computers, a lot of safety features in there.

So the platform itself has a load capacity and once you overload the basket or the platform, the machine says no more, you're not going to use this anymore. Something bad's happening, we're going to lock you out. The crew was so untrained by Nexius and Mindc that they thought the lift was defective. What they didn't realize is that they were using the lift improperly. So Nexius had another lift sent out to replace the one that the crew thought was defective, except the one they sent out had even less safety features in it so that it wouldn't get locked out as they're using it.

I mean, how big was this crew? So we know these two brothers are the ones go up and are trying to install these antennas. It looked like 135 feet above the ground. Was there anybody there with them? I mean, how did the two of them get sent up in this thing?

Four-man crew, they're part of a traveling crew is what they were called and they basically worked out of a hotel and they were sent to a job site, a location. Nexius provided the equipment and from there it was the same job or routine over and over again.

Were they doing this at other locations, I assume, and then just happened to get to this antenna site?

Correct. Yeah. So the work on this site had started maybe a week before the incident.

So what actually caused the tip over event?

So that kind of ties into what you asked me earlier a little bit about how I use my engineering background. It was a bit of a mystery for us for quite a bit of time to try to really understand what was the physical mechanical cause, not the liability cause, but how did this lift actually tip over? It was extremely windy that day, National Weather Service Advisories out. And so we looked at the wind, we studied it, we ran the reconstruction and what we learned is there was not enough static wind, like just your constant wind speed to have tipped over a 40,000 pound ultra boom machine like that. So in conversations with our engineering team, we started thinking about if you ever seen the Tacoma Narrows bridge, the classic-

Is that the one like wobbling?

Natural frequency wobbly bridge from Washington from years and years and years ago we thought, well, maybe that's what's going on here with gusting and you get an amplification to the aerial lift itself and the best way to think about it, and this is how it was explained to the jury at trial, is pushing a kid on a swing. And if you do that in rhythm, it goes higher and higher and higher and higher until you get enough movement and then you get tip over where there's no point of return.

Did any of the other workers, because I know, and I want to talk about it sounded like you had to go all over the place taking people's depositions, but did any of the other people that were there corroborate any type of swaying or sort of like additive type force adding to this thing?

Yeah. So there were eyewitnesses because Coastal Highway is a busy stretch there. It's the only way you're getting between Dewey and Rohobeth down to Bethany. And so we took the deposition of a few eyewitnesses and one of those depositions was pretty key. It was a guy by the name of Jeff Keating and he described in detail what he observed in terms of the swaying of the aerial lift back and forth, back and forth, noticing that the tire was coming off the ground by four feet. And that became an interesting fact in the case because at that amount of rocking and swaying, we learned that the platform itself then is at a 15 degree tilt and when the platform or the chassis of the aerial lift itself is at a 15 degree tilt, it locks out the controls. So our boys were in a position trapped up in that aerial lift in the platform 120 feet up in the air and unable to descend because the machine had locked them out at that point too, recognizing they're in a state of great instability.

Is there a potential design defect there? Because that seems kind of like a bizarre feature to have that if you have the boom and it's up and it's swaying and the thing's rocking over, you think that's when you'd want to have it set up that it would come down, not lock people out

The issue really is a lack of training because you can descend at that point if you know what you're doing, if you're properly trained, but if you're untrained, then what you see, what you perceive is the controls aren't working.

And you mentioned that these poor guys had been in the employ of the employer for what, 14 days prior to this and I'm assuming that Nexius or Mindco at least should have or did have some degree of knowledge of probably how inexperienced or knew these guys were on this project.

They certainly knew when they hired them and the email traffic establishes when they were hired, where they were going to go receive their training, what they had time for. And this is something that Dave did a great job of laser focusing in on the documents as we move closer and closer to trial is recognizing that Mindco's own documents, Nexius's own documents about the amount of time required for all of the discrete training certificates they receive would have been impossible for them to receive in the timeframe in which they actually went to training. Let's say the totality of their certificates that they received at their training in RF awareness and capstan hoist and rigging, it would have required like four and a half days worth of training and they were sent to training for at most three, probably two days.

So how did the lack of training ... So I mean, walk us through your argument as far as how does the lack of training and why was it lack of training by Nexius or Mindco versus the employer, why did they have that responsibility? I mean, how did you explain that to the jury? And not to give you a hard time, but three days versus four days of training doesn't bowl me over. How did you make that have greater impact with the jury?

So I'll tee this up and then let Dave knock it out. So it's not training generic, right? It is the necessary and specific training that is so critical when using one of these aerial lists.

One of the things that I have done, and we may have talked about this before, Brendan, but one of the ways in which I make other plaintiff lawyers uncomfortable in how I handle these cases is that I am loud and proud about all the operational mistakes that my clients made. I think there is an instinct on our side to be looking for ways in which our client's conduct was reasonable because we're always concerned with the possibility that our clients will either be found to be contributorily or comparatively negligent. I don't think that is what is actually going on in the same way that it can be difficult for people to perhaps understand that not all times when a vehicle doesn't come as quickly to a stop as it should, it's not necessarily a brake failure. With these types of machines, training and experience are absolutely essential in order to not just know how to operate, but as Mike said, the important thing is to know what it is the machine is saying when the machine gives you feedback.

One of the defenses here, one of the key defenses was that yeah, yeah, yeah, Nexius Solutions was the provider of the lift. Yeah, yeah, yeah. Mindco was supposed to be doing safety training. Maybe we didn't have time to get all the safety training done because we had to get guys out into the field. But for crying out loud, their employer, Velex, under OSHA, is responsible for their safety. Velex, of course, is a immune party. The focus was always on Velex, Velex, Velex. Velex was in control. Velex was the employer on the job site. Nobody from Nexia Solutions was on the job site. Nobody from Mindco was on the job site. Everything is Velex and not for noth. The foreman on this crew was evidently a certified aerial lift operator. So how are we going to do to play out how I think that this actually happened, which involves necessarily saying my poor guys didn't know what they were doing.

They made mistake after mistake. And if we look at the records from the rental before this boom, as Mike said, what it showed and the United Rentals service tech, bless his heart, did a fantastic job of saying, "These guys don't know what they're doing. They think the machine is broken and all that's happening is the machine doesn't like the way in which they're trying to interact with it. Specifically, they're overloading the machine because they're carrying the antennas instead of having the antennas winched up and winched down and they are trying to put the machine into a position of least vertical stability because they don't understand when they're coming up against limits. They keep trying to make the machine do what they want it to do. The machine is saying, no, I won't go. " And they think the machine is broken, not understanding the machine is giving them important feedback, which is, "I'm not going to let you get into an unsafe position." The focus that I generally have in these cases is to demonstrate how important training is, how important experience is and then not be afraid to say, "And here's the problem, my clients didn't have that training.

My clients didn't have that knowledge." And so on of the ways in which we focus this was saying even the guy, the foreman that Mindco had evidently trained and certified clearly didn't know what he was doing and we proved that with the records of the prior rental. The other thing that we did was, as Mike mentioned, to focus on the idea that because at four o'clock in the morning, the National Weather Service issued a wind advisory for the day anticipating winds and wind gusts up to 45 miles per hour, that alone says no aerial work today, you do not pass go, you do not collect $200. It's over. Four o'clock in the morning when the National Weather Service issues the weather advisory, the wind advisory saying winds up to 45 miles per hour are anticipated, it's over. You ground it. You have to be because the manual says if winds may exceed 28 miles per hour, you may not raise the boom, period.

So management knew it at four o'clock in the morning and of course one of the things that Mike did brilliantly in discovery was to document the fact that a vice president at Nexia Solutions did know about the winds and did shut down every other job site in the Northeast that day, literally from Virginia up to New England and just didn't get around to shutting down this one.

Mike, why don't you talk about that for a second, because I read that in one of the articles about your verdict that, and then maybe either of you can talk about how you took this fact and processed it through focus groups to kind of help figure out the best frame for your case. But you knew that there was this wind advisory and clearly you guys had figured out that at the wind speeds that they were predicting that that was above what the manual, I'm assuming the boom manual said was safe or prohibited operation depending on the wind speed. So how did you get ... Were most people just kind of scratching their head, "No, I don't know. I didn't know that. " I mean, how did you get to the point where you actually got somebody of significance to admit to that?

So there was a hint of that, I guess I would say, in the OSHA investigation records. And then the first deposition taken in the case was actually the head guy, the president of safety for the entire InfiniX family. Sure enough, he said that he laid out the different regions for where operations were occurring and he told us that Alan Frazier, the assistant vice president, shut down aerial lift work in a variety of regions up and down the Northeast except for this area. All right, great. That's one guy's testimony and it's not like there was an email confirming that here. It wasn't a memo, there wasn't a Teams message, there was nothing. It was just Dave Hall's word. So every deposition forward, obviously that's something you touch and people either knew or confirmed that that's what occurred until we get to the guy who reports to Alan Frazier, Jason Alvey's and he is effectively running the office out of which this work occurred and Jason Alves tells us absolutely not.

The job site was already shut down before the tip over. I got the message, everyone got the message, I don't know what Alan Frazier is talking about. You had two guys pointing the fingers at each other, nobody taking accountability for that. And the thing that we learned in our focus group work was that the prospective jurors, the model jurors hated, absolutely hated the fact that corporation shut down aerial lift work after this incident had shut down all aerial lift work before the incident, just not this region, despite having that knowledge.

Was there any explanation why this particular area was not shut down and all the other locations along the Eastern Seaboard were?

He had business that morning discuss with market managers in New England and in New York and in the Baltimore and Washington area. He had no business to discuss with Jason Alvey's for the New Jersey, Philadelphia, Delaware market that morning. In his words, he wished to God he did because he would've told Jason Alvey's the same thing he told everybody else, no aerial lift work today.

That's pretty compelling testimony.

It was, to go back to your question, Brendan, about focus group work, we really honestly had been aware of that fact, but it had Not been what we were considering to be primary. What we were focused on was thinking about that as an exercise of control because we knew that one of the things that we were going to have to establish was that Nexius Solutions, even though it wasn't onsite, had a right to control operations there. What we learned from the focus group work was that was where the heat in the case was. That was what made the prospective jurors angry and that was when we began to recognize, oh, wait a minute, this is what the case is actually about. We're going to make this case about this exercise of judgment to shut down everywhere basically except this region with respect to aerial and high reach work because that's the part of this that really seems to be motivating the jurors.

And that was how we then really began to frame the case. So it came directly out of the focus group work that we did.

How did you guys deal with that sort of incongruity of the two people pointing fingers at each other? One saying, "We never told them and that's why the work site wasn't shut down," versus the other gentleman you mentioned who said, "Oh no, we did shut it down. I don't know what he was talking about. " Did they just disregard that person because clearly these guys were still working?

I think Dave probably did that as direct and specific as possible in rebuttal, right? That is if you think this job site was actually shut down before the tip over and Jason Alvey's had received a message, an email like that, don't you think they'd be waving it all over around this courtroom this week? There was nothing to support his position.

Nobody else would corroborate that. There was no documents, no nothing.

Correct.

I mean, do you think that was ... I know you're speculating, but was that a self-preservation for him or did you think it was more because he's later down the line and maybe that would've been somewhat more helpful testimony or who knows?

I do have a view about that and it related to a discovery that Mike made only relatively shortly before trial. We had audio of the police interviews of the crew, which of course had to be translated from Spanish. So the police that respond are interviewing the crew and they have a Spanish interpreter with them. Amazingly, lo and behold, the two surviving crew members immediately after this occurs as the police are interviewing them, each identifies Jason Alvey's as being their big boss. That's how the translation comes through Spanish. So that was significant because Jason Alvey's was a Nexius Solutions employee. And so what we put together was a kind of armchair psychology explanation for why Jason Alvis so needed to remember these events as though the shutdown of the work on the East Coast and at this job site came before the tip over as opposed to after.

He felt responsible and literally was unable to process this and remember it in any way other than a way that protected him from responsibility because the crew itself, they weren't pointing to anybody from Velex as being their big boss. They were saying that this guy, Jason Alvey's from Nexia Solutions was their big boss. And I think once the jury actually heard the police interviews, once you hear the audio at that point, where's Nexius Solutions going? So Jason Alvey's boss is the one who calls all the regions other than this one to shut them down. Jason Alvey's is the guy who can't even come clean about his responsibility here, but the workers at the site in the immediate aftermath of the tip over are identifying him as the big boss. That was very, very powerful and it needed to be because the defense of the case in addition to ... Once they sort of lost the control issue, once they could no longer say, "Yeah, Nexia Solutions really didn't have control over the site," then the next thing you go to is the boys were contributorily reckless.

And that really was Mike's issue.

Yeah. And that really arises because it's not like the defendants didn't take the position. This job site was shut down before the tip over. They adopted the assistant vice president Alan Frazier position that job sites other than this region were shut down. Instead, what they argued right was the wind was so extreme. It was so obvious that nobody needed to be told to not perform aerolift work that day. And that was a segue into trying to argue for contributory recklessness, which is something that exists in Delaware. It's the first time that I've experienced it. I think it's the first time that Dave's really seen it come up as well in a case. It found its way as the first question on the verdict sheet.

Right. I mean, it becomes this massive problem. So on the plaintiff's side, we're all kind of familiar with section 500 of the restatement second of torts and section 500 is the standard for recklessness that we use when arguing in favor of punitive damages that a defendant ought to be assessed, or at least there ought to be discovery for punitive damages. Well, there's a counterpart that I had never read or heard of before, which is section 503 of the restatement second of torts and that is contributory recklessness. That is the idea that what plaintiff did was so crazy, so extraordinary, so unbelievably reckless with knowing disregard of their own safety that plaintiff doesn't get to recover. When you think about it that way, I mean, we argued like heck against it, but Judge Jones wound up putting that question first on both verdict sheets, on the verdict sheets for both boys.

So if the juries had answered the question, do you find Brian or Jovan Maldonado to have been contributorily reckless, then they never deliberate on the negligence of the defendants or causation or damages. It's game set match. That's where it is over. Mike made at the close of the defense case a brilliant, impassioned, thoughtful, really credible argument for a directed verdict on that affirmative defense. And the judge thought about it mulled and hemmed and hawed and complimented Mike on the excellent argument and denied his motion for non-suit and put the damn question at the top of both verdict forms, which wound up taking years off of our life. You want to tell the story of the verdict day itself, Mike?

Yeah, you tell it, Dave. Please tell it.

So on that last day of trial, Brandon, we had gotten the case with instructions and closings. We got it to the jury just before 11:30 and then we were excused to go have lunch. We knew the jury was going to have lunch. We went back to our co-counsel's office with our clients, hung out, ate, talked, yada, yada. We get a call just after two o'clock. The jury has an issue, so we trudge back down to the court. Jury comes in and they have two questions. One was, could they have more information about the legal standard for contributory recklessness? The second was, can we have a legal dictionary? We were thinking, "Oh boy, this ain't good. They deliberated for several hours and they haven't gotten past question one on either verdict form." So ultimately the judge says, "Yeah, this is all the information about contributory recklessness that I can give you.

I've instructed you on the legal standard. I've given you a copy of the jury instructions to take back into the jury deliberation room. There's nothing more I can tell you and I'm not going to give you a legal dictionary to start looking stuff up at this stage." So the judge basically told them, "No, they go back into deliberations a little after 2:30 that afternoon. We get a call at 3:40. The jury has a verdict." And Mike actually tried to be optimistic. Mike said, "It's still possible that, well, maybe they had gotten to negligence and causation and damages. They were just wanting to cross their T's and dot their I's and just wanted to be sure that they fully understood what they were answering no to on contributory recklessness." And I said, "Yeah, Mike, that's a beautiful idea. It's a vivid, beautiful dream, but it's not terribly likely.

I think we're going down in flames here." And so as we sat and the foreperson read the verdicts, we were very, very surprised. I mean, obviously very relieved, but very, very surprised because it sure seemed to us from that distance as though they would not have had time to, if they hadn't gotten past contributory recklessness and they hadn't started deliberating again until 2:30, how in the world could they have answered 12 questions on both verdict forms in an hour and 10 minutes, but they absolutely had. And boy, oh boy, what a relief. But that just took years off of our lives.

Before we get to how the verdict broke down, and obviously we're here to talk about a big win with it being a jury and obviously you guys did amazing legwork and working this case up and you came up with this great frame, but did you learn anything from focus groups about the type of jurors that you would want versus not want? And were there any particular types of questions other than the usual ones that you thought helped maybe identify people that you would or wouldn't want on this jury from the ability to be unbiased and fair in this case?

In part the DYI, the home improvement guy is someone who it turns out thinks that they know better and was very willing to go ahead and either blame the employer or blame the boys because they know better. They've used these machines and they're hazardous and you just don't do what they did. So that was certainly someone we needed to be mindful of.

What kind of person would be that kind of would fall into that DIY type scenario? Is it like a laborer or somebody that does this kind of work or is confined by OSHA regularly themselves? Who were the people that you thought would fall into that mold of people you wouldn't probably want on this jury?

We knew that of the 10 or 12 focus groups that we ran, we knew that we lost one. We knew that there was one group that had assigned all responsibility to Velex the employer that would've precluded our getting any verdict at all if the jury unanimously believed as one of our focus group juries did, that this was entirely the responsibility of the employer. And so we were on the hunt for white males between mid 40s and mid 60s with perhaps some technical knowledge and background, perhaps weekend tinkerers and builders of things, perhaps small business owners. We were sort of on the hunt for those sorts of people. So we were looking for either small business owners or middle managers in larger corporations. And what we were trying to focus on while deselecting those folks was we were trying to identify people with whom the message that the employer and employer related entities failed to train.

If the employer gives you a piece of equipment, doesn't train you, expects you to do the job, it resonates with a lot of folks that that's really an employer responsibility. And so we were sort of looking for both categories to deselect one and to try to emphasize another, but one of the things that, and we lost, I guess we had six alternates to begin and I think we wound up various points in the trial, we wound up seating at least two, if not three of the alternates, right, Mike?

Yeah, we sat two.

Yeah, we sat two. One of the things that we were also quite concerned about, Brendan, was that we did sit, we did seat more white men of a certain age than we had ideally wanted to do, but our foreperson who was a white male in his 60s is someone who spent a career at DuPont but spent it at seemingly a maintenance sort of a level, so probably somebody who took a lot more orders than he gave. And we also had some folks who were in sales and one of the things that we got from the focus group work was that actually sales folks were people who were much, much more likely to be with us than against us. So the way in which the vendor that we use sets this up, you have an entire page of typical sorts of jobs that they think are going to be good jurors for a given case and then another page of all the jobs folks who would not be, and obviously you don't want chemical engineers on your jury, but we did have that breakdown and then we also, because we had a jury that said employer 100% responsibility, we were able to get from our vendor information about that jury and about the leader of that jury and it helped us to deselect some of the people that we wanted to deselect.

That being said, we had a remarkably white male jury, which does not typically go along with this kind of a verdict, right? They're a little bit ... It's one thing to think about urban venues where you have high minority participation of various kinds. This was a surprisingly, as it wound up, a surprisingly white male jury that nevertheless rejected contributory recklessness on the boys and put very substantial numbers on the case, especially for that venue.

Before you tell us about the substantial numbers, I was reading, Mike, that you in particular, and this was another sort of unusual feature of this case, is that Nexius and Mindc were out of business basically. They went bankrupt sometime well before the trial. And so you had to go and basically take all these people's depositions, but it sounds like wound up being used at trial, sections of depositions. Is that right?

Yeah. So there were employees or key folks at least that we identified as wanting to speak with that were scattered all throughout the country from Portland to Texas to Pittsburgh and DC and Baltimore. And so we tracked them all down and sent subpoenas and went and visited. We captured all those depositions and the trial featured in an unusually large number of deposition testimony.

I think the standard knee-jerk reaction trial lawyers is you want to avoid videotape testimony as much as possible because it allegedly comes off dry and boring and so forth. Having sat through it, do you think that's true or does it matter or you just kind of have to do what you got to do depending on the case? I

Get tired of listening to my voice. I will say here that the depositions, I mean, they were pretty brutal defendants. I mean, there were certain admissions that they just couldn't walk away from. And so before we tried the case, the one thing that I kept thinking about was, how are they going to deal with this? How are they going to deal with that testimony? They can't walk away from what these folks have already said and they're not bringing them in live. So I think there's a balance to strike and you want to be selective with how much attention you think you're actually going to get from jurors, but it's kind of nice when it's already captured. You know what it is. It helps set you up for your non-suit argument and you have the words there right on the screen and the jurors were attentive.

We watched them, they were attentive, they were taking notes. So it's always nice to look over and you have that one or two key admissions you hope they get and you see them writing it down.

And did you guys, what, designate sections of it, defense would designate and then you would just play each one in total with the requested sections of each?

Correct.

I liked the control factor. You don't have to worry about scheduling, making sure that they're there, they're going to arise on time. Then you also don't have to worry about surprise testimony, change testimony, the variety of different things. So I've always kind of felt like it's not just an automatic that live is better. I think there are some circumstances just from just the logistical portion of trial where having a lot of stuff in the can be very beneficial. Plus it gives you that ability to kind of plug and play when's our live expert coming in, when's this live person coming in and so forth? I think it makes it easier to plan the trial out a lot of times.

Dave and I were big on using depth designations during a trial, maybe not as much as this. This was just a matter of the circumstances, but we do use it and it's helpful because it allows the opening to be better and more tailored and prepared because you know exactly what some of the testimony is going to be.

One of the things that began to happen even in the first day of trial and certainly into the second day was that all the things that I had told the jury certain witnesses were going to say, they were then saying. It seemed to me as though there was a real credibility boost because so many of the things that we had said in opening were now coming to be whereas I think that the defense lawyers to a certain extent at times may be over promised and underdelivered with respect to their openings. I mean all very, very cordial, very civil, good trial experience. Nobody was needlessly streprous or obstructive, but not that the defense lawyers want any advice from me, but one of the things I think is so important is to be able as an advocate to keep your promises. And if you say something in the opening, you better be prepared to back it up.

So having the case largely in the can did I think help with that. It helped us to build credibility from the beginning. The other thing, just as a matter of the grind trial, it's nice when you are literally able to write your opposition to motion for non-suit and your closing before the case begins, which is not always necessarily the case. So it did help in terms of the preparation in that way. But like you, Brendan, it's the control element more than anything else that I just love about having a lot of testimony in the can. Would the jurors have said that it was boring? Yeah, I think probably true, but they paid enough attention to it to get from it what they needed to get. And it also, when we did have live witnesses, I think it kind of helped to sort of heighten the interest in the, "Oh, thank God we have a live witness right now."

Obviously there would've been some future economic loss from an earnings potential for these two young guys, but what did you focus on in closing from a non-economic damages perspective on wrongful death? I mean, there's probably not much survival, but there would've been some that you thought was going to resonate or did resonate with the jury to understand that sort of non-economic component of the case.

Well, as you know, and we've talked about a couple of times now, I'm very orthodox in using David Ball Damages second edition. And so the focus was on the greatest losses in the case, the human losses and what we specifically did was to have each of the boys' parents tell a story in their examinations, which wound up being, I mean, fairly, fairly short, but the way that we framed it was first Joaquin their father saying, "I was raised in Puerto Rico to believe that work is the most important thing. What I regret the most about what has happened is that the boys asked me to go to dinner with them the night before they were leaving for the mainland and I told them that unfortunately I would have to work, but that we would FaceTime once they got there and they would be back soon and we would be together." So Joaquin said, "Because I was so insistent on going to work that night, I didn't get to spend that last night with my boys and I never got to say goodbye." What Vanessa, their mom talked about was that because the boys died on Brian's birthday and Jovan would have been the following day, as Mike said, turning 24, now what they do is celebrate the birthdays and the anniversary of the boys' death at the same time.

So they literally, Vanessa said, "I literally bake and bring birthday cake to the cemetery and visit their gravestones with their birthday cakes on the anniversary of their birthday and their deaths." And so we used those two stories to stand for the entirety of their human losses and that was something that seemed to resonate again based on the awards that the jury made.

So what did the verdict wind up being obviously combined for these two young men?

Mike, the engineer's going to give you the precise answer question.

So it was 65% to Nexius, 30% to Mindco and then 5% for Brian and then you had a mirrored verdict sheet for Jovan. And then what happened is you have different categories of damages that included the mental anguish for each parent for each boy, which was the jury awarded 2.5 million for each parent for each boy. And then as far as pain and suffering is concerned, the jury gave 1.5 million for each boy for pain and suffering. They effectively, as best I can tell, they took their hourly wage and multiplied it by their life expectancies and awarded them those economic damages about two million for each boy. And then the jury gave another 500,000 for the financial support that they believed each boy would have provided the families as well over the course of their lifetime.

So total was like 18 million and change, right?

Yes. 18,200,000 change, yes.

Did the family feel, I don't even know what the term would be, vindicated or relieved, or how did they respond to such an amazing verdict?

Relieved would be a great word. I mean, it was very stressful and hard on this family, especially the loss alone combined with not spending a lot of time in the mainland. They don't speak English, a very unfamiliar process. And the one thing that Vanessa told us repeatedly throughout this process is that she had to bring this lawsuit because the boys can't defend themselves and she was very concerned, emotional, rightfully so, at the amount of finger pointing at the boys. So I think they felt vindicated, they felt like they did right by the boys, defended them and they felt relieved that the whole process is over.

I think that that sense of their feeling like foreigners to the process had kind of an interesting parallel. There was a shocking number of our focus group jurors who wanted to know, understanding that the boys were from Puerto Rico wanted to know if the boys were here in the US legally, which is hello, they're US citizens. So this is not the first time that Mike and I have represented folks from Puerto Rico and I do this shtick with bringing that out in direct examination that they, just like us when they went to elementary school, they would stand during homeroom and put their right hands over their hearts and recite Pledge of Allegiance because it's incredible, but a lot of people don't recognize that Puerto Ricans are in fact US citizens, though they are US citizens with limitations of rights. They don't, for example, get to vote for the US president.

So that was also one of the factors and one of the things that we had to make sure, again, coming out of the focus group work that we were addressed to make sure that everyone knew their geography and politics and knew that Puerto Rican citizens are US citizens.

I think that's one of the many great things of focus groups is you'll identify these little mini landmines and you can address it in one or two questions or sometimes just a passing comment and opening and it completely diffuses that issue that without the focus group, you might assume everybody knows about how citizenship works between Puerto Rico, United States, but I think that's just yet another great example of the power of focus groups.

And one of the things, and I just have to say this, one of the things that I love about the verdict is that during the trial, what we heard from some of our colleagues down there in the Delaware Bar was that the verdict that Dave and I had down in Delaware last summer, the conversation was, "Oh, is Delaware really changing? What is this verdict? Is this a harbinger of things to come or was that just a one-off?" I don't know. We don't know. And then this happens and I'm not sure it answered their question. I don't know if things are changing in Delaware or if it's this to how you put it, Brendan, the dynamic duo.

Yeah, I mean, it certainly speaks to the two of you for sure. And I think it also shows at least it gives people hope about sort of like the first person that broke the four minute mile. It shows you that it can be done and that's very inspiring for others. So I think it's a combination of you guys kicking butt, but also showing other lawyers in that jurisdiction that it can be done. So kudos to both of you, Mike Zettlemoyer, Dave Kwass. Mike, I'm glad that Dave allowed you to get on and toot your horn a little bit this time as well. He didn't hog the spotlight, but it was great to have you guys on here. These two super lawyers are from Saltz Mongeluzzi Bendesky hear about more of their verdicts in the future, but both of you, Mike, Dave, thanks for being here today.

Yes, thank you. It was a pleasure.

Brendan, thanks so much. Thanks for having us.

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