Opening by Don Keenan / Closing Argument by Pat Maloney Sr.
This week’s guest blog is a real treat – it’s a closing argument given 30 years ago – and I’d encourage you, please don’t read this one in a rush. Get some private time and squeeze this beautiful orange.
San Antonio lawyer, Pat Maloney, Sr. (1924 – 2005), has had a significant influence on my life starting back when I was a puppy lawyer and I stumbled on a series of cassette recordings (remember those?) called, “Million Dollar Arguments,” where lawyers were invited to re‑give great closings on tape. Plaintiff’s lawyers around the country could then purchase some or all of these outstanding arguments. Hands down, my favorite (for reasons you will soon see) was Pat Maloney’s $26 million closing. I listen to it over and over again, because of its power and because it rocked me to my emotional soul.
Many years later, I became the youngest member inducted into the Inner Circle. It was at that time that I met Mr. Maloney in person, along with his long-standing wife Judge (our clever nickname for her because she was, of course, a judge) on the way to breakfast on the first morning. I was awestruck and called him “Mr. Maloney.” He laughed and said, “You’re that kid from Georgia,” – right before he said, “stop calling mister.”
Pat later became President of the Inner Circle, which came as no surprise. I was elected President to follow Pat, and that was a big surprise (to me, at least). As his Vice President, I got to spend some special time with Pat, including time at his larger-than-life office building in San Antonio. The office was laden from floor to ceiling with memorabilia and had a desk bigger than Texas.
Today, my friends, what follows in this blog is an argument that will make the hair on the back of your neck stand up – because of its power and because Pat was Reptile© before Reptile© was cool. If you have a minute please take out a highlighter or a red pen and underscore the multitude of Reptile© references and issues in the below. You will find it truly, truly remarkable.
If you’ve got a moment I’d really appreciate feedback on this one. –Papa Don
Note: To download a PDF version of this closing argument, click here.
FLORES v SURTIGAS: Million Dollar Arguments
May it please the Court and you,
Jurors true, I’ve now spent 30 years in trying lawsuits
in many places in Texas and many places in the United
States and I sincerely feel that every case that I’ve
ever tried is really a predicate for this particular
lawsuit. I sincerely feel that notwithstanding all of
the injured people, all of the pain, all of the mental
anguish that I’ve embraced as an attorney, encompassed
and talked about all my life, all of that
disfigurement, all of that misery absolutely pales when
contrasted and compared to the pits, the depths, and
the morasses of suffering and mental anguish and
disfigurement encompass an young Jimmy Flores whom we
represent in this case.
At this time I’m so aware of my own
Inadequacies and my own disabilities in performing this
Terribly formidable task of adequately representing
this young man, his family, and Magdaleno Solis. You
Will recall three month, two weeks, and five days ago
in voir dire examination I asked each of you,
Individually and collectively, do you have the courage,
Can you stand tall enough to give millions and millions
And millions of dollars in this case if you feel the
Facts and the circumstances warrant it. I told you
then you are going to hear of suffering and of pain an
Of mental anguish and of mutilation and agony,
the like of which you’ve never heard or contemplated before in
your entire life.
You were told several months ago
Before you became jurors that you would hear a story of
tragedy which cannot possibly be equaled. I told you
then that you would hear expert after expert after
expert testify as to the design and the manufacture of
this tank by the defendant, Lubbock Manufacturing
Company, which did make and does make now and
Unreasonably dangerous product for the purposes of
which it is intended. You’ve seen that this promise
And this assertion has been very richly fulfilled.
During all of these many months and many weeks that you
And I have been together, I’m sure it hasn’t escaped
Your attention that you community is blessed with the
Services of a magnificent judge who has given us a
Very, very fair trial. You’ve seen him under very
Trying circumstances recognized that your community and
His community as a consequence of this terrible debacle
Have been put through great and collective agony and
Anguish and pathos, the like of which has never been
Known before in the history, not only of this state,
but in the history of the United States.
We told you that the very best minds
In the country on this subject would be brought before
You to testify that this is a catastrophe which never
Could have happened but for the negligence, but for the
Fault, the greatest catastrophe in the history of the
United States on your highway and the very thought,
Jurors tur, it could have and should have been avoided
is socking but a terribly true conclusion. Just
Think, with the properly designed and built tank, this
Holocaust, this inferno all would never, never have
happened.
No, in discussing the overall aspects
Of negligence, we’re not going to detail that is
Preceded by me during the last three days, by the other
attorneys and the other attorneys and the other
attorneys, but rather we’re going to generally
summarize some of the salient aspects as to why in
design and manufacture there were glaring failures.
Before doing that, however, there are
some ideals and some ideas that we can perceive as
proper guidelines for you and vehicles for you in your
deliberation and in your judgment s jurors true. When
it comes to the agony and the suffering and the anguish
in this cause, I warn you now, I’m going to lay it on
you pretty hard and pretty heavy because I think to do
otherwise would be the height of infidelity.
Notwithstanding, my five children, now
Since grown, I’ve never been one to say, now, you’re a
Young man or you’re a young woman and, therefore, don’t
You dare cry. That’s nonsense. The Lord made us to
Laugh and he made us to cry. So, I don’t have any
Apologies when someone like little Norma Flores,
Jimmy’s sister, got on that stand and started to tell
you about Jimmy. She broke up and so did I. You saw
that we were already break up during my interrogation
of her, as I could see you as jurors were also, and I
Admit I simply couldn’t go on with the interrogation or
her recitation. I don’t apologize for it because when
you as jurors were crying with me, I couldn’t see
anything wrong with it then nor do I now.
The deep compassion which I am going
To call from you during the time that I’m going to
Visit with you may be a little too much for me, also.
But, again, if it is, I have no apology because it’s
Something that has to be done if a fair trial is to be
Accordied in this dreadful cause. When I tell you,
Jurors true, about the integrity of our system and
about the height to whch you must necessarliy reach, I
Feel ideals and stories and comparisons are helpful and
Necessary in order that you walk the path to which you
are necessarily now assigned in the pursuit of a
Faithful verdict. I know that you’re not the kind of
Group who has given weeks and weeks and weeks of you
Time from your families and you lives and you
Pleasure and your buisnesses if you did not believe in
The democratic processes which embrace the aims and the
Ideals which I’m now goinginto review with you.
A very long time ago when we as a
People were trying to break off the yokes and the
Tyrannies of England and become a country, we had in
Our midst a person by the name of Citizen Tom Paine.
He was called Citizen Tom because probaly more than
Anybody else he was the one who was fundamentally
Responsible for the successful idea that pervaded the
pre-revolutionary days. During the Revolution, you
Probably know we had tremendous desertions,
Particularyly in the wintertime. The reasons for the
desertions were simple, indeed. It was cold and it was
Cruel and the men were so terribly desperatley needed
Back at home. Citizen Paine had a phrase and he had a
Story and I give you that phrase and I give you that
Story now in order that you may ascend to the heights
In your jury deliberation. Citizen Pane said, “Don’t
Be sunshine patriots. Don’t be summertime soldiers.”
It’s the same sort of admonition and prayer and
Suggestion that I have for you in juror deliberation.
It’s the same philosophical obsevation that we have
For you as jurors when we talk to you, as we will very
Shortly, of millions and millions and millions of
Dollars for the pain and the suffering and the misery
Which no cause all of us here. We’re going to ask you
Not to be summertime soldiers and not to be sunshine
patriots but to stand tall.
One of the turly great men in this
Country, Thomas Jefferson, was given to explain about
Public servie, thusly, when he said, when you have a
Position of public trust, you are public property. Fo
The first time and probalby the last time in your life,
You now have the strange and terribly responsible role
Of public turst and public property.
Very shortly, my coments will be
Terminated and then you’ll have the awesome
Responsibility and challenge of reviewing thousands of
Exhibits, months of testimony, and the tremendous
Losses which have resulted because of a defectivley
Designed and poorly manufactured tank by the defendant,
Lubbock Manufacturing Company. Obviously, a juror’s
Service is a public trust. Obviously, a juror’s
Verdict is public property. We must all live now in
Your public trust and your verdict must now service as
Public property for all time. In rendering your
Verdict, therefore, you do, indeed, write history.
It’s recoreded here in this courthouse for all time, for
All people, and for all generations to come and see
What you have written under these circumstances, not
For this moment but for all ages. It is only you who
Can write this particular history.
Shortly, your going to hear a
Request for the most hisorically large sum of money
Probably ever asked for in any courthouse anywhere at
Any time. In doing so, you must realize your verdict
Will ever stand now and forever until your
Grandchildren have grandchildren. In my judgment,
Your going to be one of the proud members of whom it
Will be said you gave so much because the situation
Demanded so much. Therefore, let that verdict be a
Proud moment in history for you and all others.
Several hundred years ago, there was a
Man by the name of John Donne. He was a great
Chruchman. He was a great patriot. But most of all,
He was known and remembered becasuse he wrote very
Eloquently. He wrote these words, which apply to your
Jury verdict, which you will shortly write, he said:
Ask not for whom the bells toll, no man is and island,
We are a part of one continent. So, ask not for whom
the bells toll. The bells toll for you.”
Naturally, it can never be suggested
Or said your verdict is not going to touch you in some
Way in your own life and the community generally
Beacuase that’s your role and that’s your office, not
Only in the most important role of all, and that’s the
Assessement of actual damages, but also the imposition
Of exemplary damages. And we’re going to talk about
Exemplary damages and the role and the function of
Exemplary damages as they relate to you as jurors.
They are your opportunity to send a message to a
Miscreant and throughtless manufactuing corporation
That should read, in effect, scrub up your act so this
Terrible tragedy may never, never happen again. And
I’m going to try to tell you not in the same scientific
Detail which you’ve had for three days by lawyer after
Lawyer after laywer and expert after expert after
Expert, but, rather, I’m going to give you my
reflection on the experts who impressed me the most and
why they did. Both as to the actual damages and
exemplary damages, I think the most impressive witness
in the entire expert field that you’ve heard was that
of Professor Zaid {phonetic}. I’m not only impressed
with his knowledge, but I’m impressed with his sense of
fairness and indignation in this matter. You recall
his absolue outrage at the manufacture of the tank
when he said how useless and how unnecessary this
entire holocaust and explosion really were, that it was
unnecessary had there been comopetence and had there
been proper design and manufacture. I got the
impression, frankly, that the truh came out even more
saliently and seriously in the cross examination rather
than in the direct presentaion. That’s the reason why
I agree with my firend on the defense who said cross
Examination is the crucible of truth. In his case,
That of Dr. Zaid, indeed, that was the case.
Another expert who impressed me
Immensley was Dr. Grubbs {phonetic}. I cannont help but
Relate him so closely to the dead man, Verduzco, the
driver. During the past 30 yers, franly, I’ve
represented many people who have been killed or
traumatized or injured or misunderstood or downtrodden.
In this instance, we cannot evision a single shred of
Evidence based upon that experience of credible
Testimony which justifies the remarks that the driver,
Verduzco, should not have been driving this
Tracto-trailer more that 35 miles an hour. Such
Comments can only meet with agreement by you when it’s
Proven by a preponderance of the eveidence. As I
Understand it and saw it and heard it, Lubbock’s only
Real defense in this case is attempting to lay the
Entire blame on the dead man. We feel, understandably,
That this attempt is being made to disguise their own
Ill-doing, their own tepidity, their own terrible wrong
And the tragedy which never, never should have
Happened. And I’m like you, or some of you, in that I
Don’t profess to be able to talk knowlegeably and at
Lenth about stress test and the CG and all of the
Various elements and components that go into the
Reason for their opinion. I’m trying to talk to you
As a lawyer of three decades as to what leads me
Personally to the truth as to the defective and faulty
Design and manufactured tank in this case.
The witness, Horn, who came from
Pitsburgh and has talked so knowledgeably as to the
Defectivemess of the tanks and, yet I remember little
Or nothing in the way of cross-examination from the
Lubbock atorneys in the face of his massive and
Overwhelming testimony as to the defect and poor
Manufacturing. Then Lubbock had this other expert who
Was so formidable, so exhaustive, and yet, he said he
Could find absolutley nothing wrong with the fifth
Wheel. When I heard him make this remark, I concluded
Under the evidence if Lubbock really did have anything
Against the fifth wheel, they’d have live testimony,
don’t you agree? They would bring in the experts, like we
Did, from New York or California or Pitsburgh. I
don’t think, do you, hearing that Lubbock is the
Biggest tank manufacturer in the world there was lack
Of resources or money that prevented them from bringing
In live experts to testify before you, rather than
Using the written depositions. I think, don’t you, it
Was the truth that prevented the apperance of such
Witnesses?
Lastly, as to the experts and the
faulty design and manufacture, we now come to
Mr. Henerdson. Wheather you are trying a fifth wheel
Case or a negligence case or a products liablity case,
Brining in Mr. Henderson live, the man who actually
Did the sesigning of this tank, was both essential and
Mandatory, necessary and right. I’m sure that all of
You folks, all of you jurors truem, are going to want to
Know the answeres to questions that would have been
Posed to him had they been good enough to bring him
Here. He’s still in their employment. He’s still the
Prinipal designer. He’s still absence. You would
Have asked, and I would, was the tank ill-designed, was
It poorly manufactured? And you would ask him,
Wouldn’t you, why don’t you bring the man in who
Actually did the design, who actually was in charge of
The manufacturing? Then we, as jurors, could see him.
We could hear him. We could listen to him. We could
Evaluate him but, most of all, we could see him, too,
Being cross-examined. What it amounts to, jurors true,
We could see the cut of the fellow who actually did the
Designing and who was in charge of the manufacture of
This actual offending tank. You know, jurors true,
Nothing speaks louder, nothing is more significant
Concerning defective design and manufacturing than the
Absence of Mr. Henderson. The failure to bring him
[permits of no other concludion than that he could not
Help Lubbok’s cause. They convicted themselves just
As surely as if they had written a confession: I did
Poorly design the tank. It was defectively
Manufactured. We were negligent. And the signed that
Confession, Henderson, designer. It couldn’t have been
Any clearer. It coun’t have been more convincing.
The guy that had to be rused up to this Del Rio
Courtroom, scrubbed up, brought in at the last second
Was Mr. Preston, who works forMr. Henderson. What
does this tell you? It tells you there was
Desperation, it tells you there was guilt, and it tells
You those are responable and fair conclusions. You saw
What a terrible position Mr. Preston was put in as a
Consequence of this desperation. What are you going to
do when the head man can’t or wont come beofre you in
this moment of truth? Three years after this terrible
debacle and holocause, they put on Mr. Preston who
doesn’t really know about the design and manufacturing,
but they refused to put on Mr. Henderson who knows all
about it.
Really, you don’t have to go any
further, do you, in writing in yes on this chard based
upon the eveidence and the premises because the failure
to produce Henerson compels yeses, does it not? As
suggested to you, for all of these reasons, and the
many, many more that you’ve heard for three days of
argument preceding me, we lay one hundred percent of
the cause, producing and proximate, to Lubbock
Manufacturing company. Dr. Zaid, Dr. Grubbs from the
standpoint of competence, education, ability are
largely undisupted. Mr. Henerson’s silence confirms
their testimony about defective design, faulty
manufacturing.
As to the fifth wheel, it will be said
that when Mr. Wiley’s client paid $5 million, this
indicated that his product must be defectively designed
and manufactured but we don’t agree. And Mr. Wiley is
going to comment very shortly in this case, as soon as
I’m through, and I’ll shortly be through, it seems to
me, as I recall his testimony, that he said that in his
judgment this case is worth 50 or 100 million dollars
and, therefor, the 5 milllion is a pittance and a
fraction of its ture worth; and I agree, don’t you?
And we’ve tried to reivce with you without redundance
as to why these issues should be answered yes. I think
you’ll agree that examination of the expert testimony
tells these affirmative concludsions.
Let’s turn to the grizzly audit for
pain and suffering and disablity and disfigurement and
mental anguish. This is the hardest. This is the most
challenging. This is the most important. I want to
tell you a few things that are important
philosophically and you understanding the pitiful
consequence that Jimmy, child of ashes, preacher of
this inferno. In considering the importance of your
verdict, I many times referred to it as a written
testament, your legacy that we all must share in in
glory and pride or in dismay and disappoinment.
Remember with me the words of the great Cardianal Newman
when he suggested the importance of the endeavor of the
moment by saying: I do not ask to see the distant
scene- one step at a time is enough for me.
As jurors, stand like giants, tall in
the realization, this challenge is yours, this
responibility is yours, this verdict is unquestionably
yours. And by its comprehension, its wisom, its
fairness, its size, it will resound not in this
community, but throughout the United States making the
greatest historical strides in contribution ever known
anytime anwhere. We need to paint for you the picture
of the human heart. The heart doesn’t have a handle on
the outside. The heart has a handle only on the
inside. That’s why we brought to you the nurses, the
doctors, Jimmy’s friends, his teacher, his coaches,
his pictures beofre, his pictures after, all of the
bills, everything which would enable you to use the
handle of your heart from the inside, not for sympathy,
not for prejudice, not for passion, but total
understanding and total comprehension.
Why do we do this? Because we know
you’ve got to write a bottom line on the most
devastating hisory in the entire human specturm of
this explosion. You’ve got to realize that Jimmy
naurally didn’t want to sell his ears or his lips or
his eyes, which are all gone, or his face or any of the
other 90 percent area of his young but mutilated body
for any price. But whether Jimmy likes it or not, he
has put them on the marketplace of compensation because
they’re gone. You must write in the price. Of Course,
he wouldn’ and, of course, he couldn’t put a price on
the pain and the suffering he’s endured or on that
which his mother and his father and his brother and his
sister must endure by just seeing him suffer hourly and
daily or realy on the sale of the teenage life which
was his and which will never, ever be or on the idea of
dating in his formative year or realizing whatever
personal history and aims and aspirations and dreams
which were his of getting married, having children,
having grandchildren. Never more, Jurors true, never
more, never a single chance.
What’s Jimmy got right now? The
children that you heard that testified before you
say he’s a monster. Well, we know because he never leaves
his room, except for the hospital bed, that he’s a
total social outcast. Now, you and I have lived
together for a long time, more than three months. It
must have crossed your mind again and again and again,
is that lawyer really going to bring Jimmy into this
courtroom and must we really view him and must we
really hear him? I’m very hopeful that surely deep
down you know we wouldn’t do it, nor would Jimmy’s
family or Jimmy permit it. Naturally, Jimmy doesn’
want to see you and he shoudn’t have to. Jimmy as you
know, wsa a young fellow who was so bright, so full of
life, with so much to look forward to in the way of a
full, active, bright and satisfying future.
Who was it that said maybe death would
have been a blessing? Bu Dr. Larson {phonetic} said,
no, we can never play God. So, therefor, God in his
wisdom has said that Jimmy must live out is 55 years
of life expactancy literally as a mummy caught up in
that scarred body so bad that his closest friend,
George, said, “I couldn’t get up the courage to look at
him.”
Oh, one of my defense brothers at the
Bar has been good enough to remind you that we’re not
here to talk about sympathy. I agree. He’s completely
right. And do you know why? Because sympathy when you
refer to Jimmy is demeaning. When you are as proud and
competent and brave and courageous as this youngster
is, sympathy is not a proper comapnion. Sympathy is
really equivalent to charity and both of them are
inadequate when we talk of Jimmy. Sympathy is
something you give and it so often prompts you to look
down on the person that you give it to and maybe think
that you’re better than he is. No, when you talk of
sympathy, don’t refer to Jimmy because he deserves
something so much better, prouder and more adequate and
appropiate than sympathy.
The indians of yesteryear had a
saying: “you’ve never known a man until you walked a
mile in his moccasins.” That’s the difference between
symapthy and compassion. Any lawyer, particularly the
lawyers representing Lubbock Manufacturing Company,
say, as you’ve heard them, you’re going to see the most
sympathetic sight and hear the most sympathetic words
you’ve ever seen or heard when you hear the remarks by
Jimmy Flores’ laywer. Anyone who suggest such a thing
to you is simply trying to tel you in a very wrong way,
in a very perverse way, that the millions and millions and
millions we’re now going to ask for Jimmy
serves no useful purpose. Such conversation about
Jimmy and symapthy is an attempt to trick you. This is
not the time and not the place for a game of trickery.
Its time for understanding, comopassionand fairness
and justice.
So, you see, you havn’et heard from me
or Dora or Manuel asking you to give Jimmy anything.
You’ve never heard me ask that Jimmy be given anything.
He’s already had everything taken from him. So, in the
interest of justice, I would demand for him, as I would
any proud or free American, that you give him the right
to come into this courtroom, a temple of truth and
justice, and preove his losses and then give him fair
comopensation, jurors true, never a gift. Proud people
on’t want gifts. They want to be paid fairly and
squarely and fully for the immense and the profound and
the incalculable losses which this young man has
endured.
Let me explain it very simply.
Presume for the moment that Lubbock Manufacturing
Company lost one of its tanks which sell, conceivably,
for a million dollars and the wrongdoer totally
demolished it. I would expect they would argue, and
rightfully so, give Lubbock Manufacturing Company
against this wrongdoer the full sum, a million dollars.
You know why? Because it’s fair and I would expect you
To do it, the full hundred percent. And when you come to
Jimmy, I know it’s difficult for you to give him a
hundred percent fairness but I’m goin gto ask you and
plead with you to do it.
Do you know why its so difficlut to
pay the full hundred percent, as Lubbock would expect
to be paid the full $1 Million for the loss of their
truck, the reason why its so difficult is that you’re
being asked not o look fully and squarly at this pain,
his suffering and his disfigurment and his mental
anguish, his loss of earning capacity and see,
therefore, his total bankruptness, without any
happiness, without any accomplishment, without any hope
ever, ever again.
We’ve visited together, you and I,
three months and more. Therefore, when I say that the
poor and the sick and the injuured and the downtrodden
are entitled to the ranks under the Consistution and
the law no less than the healty and the wealthy, it
surely comes to you as no surprise, I’ve said it before
and I’m saying it now, the dignity of man restes at the
core of th American consitutional and statutory
values. Its spirit suffuses every clause and every
legislative act. Govermnet’s duty is to protect and
cherish that dignity and it’s the moral and the
political force of the whole constitutional and
judical system. And thje last analysis, though, of all
of this, it meust be said, you, jurors rue, are a last
refuge of justice. So, it must be and shall be in this
case through your verdict.
We’re no in spcial issue 255 with
eference to Jimmy inquiring about physical pain and
mental anguish in the past, the physical pan and
mental angish in the future, the loss of earning
capacity in the futre. You’re also asked about
disfigurment. You’r also asked about physical
impairment. Here’s the area for months we’ve told you
we’re going to ask no, and we do, for millions and millions
and million. Here’s the chart, very
insufficient, but I hope that it will assist you in
vivid review.
Do you remember Mrs. Garcia, the
neighor, who said one of the terrors of all is the way
the children would stare and stare and stare at Jimmy.
His coach told you, the thing I remember about Jimmy
the most, and I had him for three years, was that he
never, never gave up. His other coach said Jimmy was
the kind of kid who was always trying treal hard to get
something accomplished. One of the counselors said he
will never, ever even get to play hooky from school
again because he doesn’t even have the school room.
Mrs. Moreno, in tears, remarked, a
sight you’ll never forget, he’s so horrible looking.
The nurse, Rodriquez, told you there’s no hope for his
rehabilitaion. Jimmy begged Mr.s Felipe Martinez,
“please don’t let y mother see me.” Jimmy’s aunt said
Dora has to clean him every day just like he’s a
newborn baby. Mrs. Perez, a dear friend of the family,
in tears said, “God help his mother have the strenght
to care for him.” He said the whole thing is so hard,
so overwhelming, so very dispairing.
What would it be like to be so
terribly and completely depentent upon someone? You
don’t even have the solitude of the bahroom alone.
You can’t brush your teeth. You can’t feed yourself.
What would it be like when you know you’ve already had
two horrible Christmases and you have one coming up in
just a few days and you know each day things only get
worse and blacker with each suceeding Christmas, each
Christmas worse than the last.
How desperate does the situation
become when you’re so young and the explanations are so
difficult when you’ve had the kind of pain Dr. Knudson
{phonetic} descibes telling you, as she did, I know
what the pain is, I’ve been burned and my children have
been burned. I know what Jimmy is going trough.
Do you remember her children as they sat before you when
she testified how burned and anguised they were years
after the event? Do you remember her saying, I just
went through four months of treatment. The clorox bath
is so bad, you sceram and scream and scream. She said
threre’s no pain lik a burn pain. She warns you and
reminded you, jurors, there’s a difference between pain
and mental anguish. She said you have the pain of the
burn and that’s going to stay with you. You’re not
able to buy or take drus enough to abate the pain
because and excess would kill you. You have to,
therefore, learn to live tith pain constantly. Its
your consant visiot, she said. But she said, here’s
the problem with Jimmy. He hasn’t stopped growing, but
the scares are never going to allow him to reach his
true growth. This is a hideous recongition but a fact.
She said, additionally, the problem is Jimmy’s the same
inside but outside he’s so terribly different. In your
face, she said, is how people percieive you and they
perceive Jimmy as a monster. Jimmy’s former friends
are all gone. Understandably, they’re making new
friends. But how many new friends do you think ever
Jimmy’s goin gto make in the future or kep those that
he had in the past? Mental anguish, she said, is what
you think, Mental anguish, the doctor said, is never
being able to accommodate to society. I’ll never have,
she sayd, in Jimmy’s mind, anyone other than my present
friends and they’re going their separate ways, my brother; my
sister; my friend George; my mother, Dora
and Manuel, this is mental anguish as distinguished
from pain.
What we have tried to do is to assist
you in the frankfully responsible task, to paint
pictures for you, to ive you ideas, and ask you to do
something you’ve never done before in your whole life.
That’s to face the pain, to face the agony and the
anguish that Jimmy’s undergoing right now and will the
rest of his life as you deliberatre on the size of your
verdict. If you don’t do it, then no one at anytime
anywhere is goin gto be able to give him the fair
consideration that he’s due. If he’s going to get a
fair trial before a jury of his peers because you must
look squarely at his pain.
Now, let’s look at the chart of
medical expenses. We know that Jimy was at the Santa
Rosa Hospital cirtically ill for 81 days. During the
entire time, there was little or no hope he would
survive. Dr. Larson described him as the worst burn
case in the history of his three decades of treating
desperatley burned children. Dr. Knudson said when
they borught him in to the Galveston vurn clinic, he was,
indeed, dying. We know the sum of his bills is listed
on the charts. Santa Rosa Hospital was $37,344. We
know this involved all of the areas that we’ve marked
for you on the chart, including the treacheotomies, the
skin graft from waist line to the face, the constant
release of the joint contractures. You’ve already had
the doctor bills before you. You know generally what
they embrace. Really, we have no difficulty with the
fact that the past medical expenses, including the
Shriner Burn Clinic, 398 days, 23 operations, is a
total of $160,000. This combined with the Santa Rosa
treatment would mean that the toatl past medical is
$192,852.
You know that the medical testimony is
the difficulty with Jimmy’s graft is the only skin he’s
got is on the top of his head and, therefore, as a skin
donor site, it’s very difficult and very sparse. We
know he will have a great deal of treatment in the
future, witout limit, really depending upon how much
more physical pain can he bear.
Well, then what is the future meical
expense for Jimmy? Dr. Larson said there’s no doubt
Jimmy should have one or two operations a year for the
balance of his life, provided he can stand it. Each
operation will entail very dreadful pain and sometimes
the memory of the pain is such he simply may not be
able to foce himself to to tolerate another operation.
When each operation is done, Dr. larson said you’re
looking at $1,000for the surgery, $200 a day in the
hospital, and two weeks in the hospital and
anesthsiology at the rate of $250 a day. In the way
of operation costs, you are, therefore, looking at the
sum of $4,550 per operation. If Jimmy had operations
such as these, he would be spending in excess of $9100
a year, twice a year. Therefore, such costs right now
would be $429,300 in future medical. We know, of
course that such medical costs are escalating under
the evidence at the reate of 14 percent each year. If
that’s true, that $429,300 would be well over
$3 million in future medical costs. We’re being
conservative, as you know, because, obviously, we want
both a fair and realisitic figure for Jimmy who’s living
in a world of astronomical and overhelming pain,
mental anguish, future hospitalization, and medical
bills so enourmous it’s overhelming and impossible to
comprehend. We know it.
We’ve already reviewed for you that
which you’re dealing with in this young boy who, among
his many other losses, has no fingers, no hands, no
ears, little in the way of eyesight. Dr. Larson said,
he is he worst disaster I’ve ever seen, eard, eyes,
lips, testicles, all harmed beyound repair. One women
described his testicles as large as apples. He was so
black and so revolting, he pled with her, “don’t let
mother ever see me.”
We’ve already reviewed Jimmy’s 25
operations. The medical bills have been reviewed and
presented for your consideration. The attorney for
Lubbock Manuacturing Company, naturally and
understandable, is interested in the conservation of
money in this ause and he will say the economist
exhibit, Dr. Benz {phonetic}, don’t talk in terms of
the 3,524,000, which he said would be he loss of
income, but rather look at the discounted rate of
685,443. That’s for your consideration and that’s for
your deliberation. That’s why we gave you all the
facts because we knew you had to apply your conscince
and good judgement to anaylyze those facts and do the
right thing under the circumstances. I’m going to be
frank with you at this stage. I know my colleagues did
not come to you with this kind of arithmetic or this
mind-boggling amount of dollars and I know that it,
therefore, is difficult to know wheather I’m addressing
as it should be or they. We’ve given you, however, the
best gauges and guidelines we know in the way of rules
for guidance and protection.
As to Jimmy’s loss of income, that’s
up to you. Perhaps, you may think a fair figure is in
the middle between $689,000 and 3 and a half million.
That’s why we gave you what we regareded as the
outstanding expert in the United States. We knew you
needed it. That’s why we brought him, great expense.
Loss of earning capacit, you know that’s zero, he will
never, never work as he wil lnever, never play, as he
will never, never dream. And, so, that’s a matter for
your consideration also because you’re talking of a
young man who had a half centruy, freams, aspirations,
and a useful life.
We bring you the charts analyzing all
the remarks that you’ve heard, Dr. Larson, Dr. Knudson,
Dr. Kyker, the medical bills, the loss of
income. This gives you the area of $4,152,997. The
remarks of the nurses and the neighbors and the
teachers and the coasches and the friends, the mother,
the aunt, the father, the brother, and the sister
add up, don’t they, to monumental damages?
Exemplary damages, here again, if
there were ever a case that cried out for exemplary
damages in order that lessons be taught for the
terrible defects, the horrible manufacture, this is it.
Once again, through, we think the threshold should
always be on the actual damages. Exemplary damages,
again, in the area of $25,000 with millions and millions
and millions of dollars going to actual
damages for Jimmy.
My friends and jurors ture, we’ve now
made the full circle. Very difficult thing is what
figure? I’ve said millions and millions and millions
but what figure? Well, obviously, you can talk in
terms of 10 million or 15 million or 20 million. We’ve
got the summary which we think is fair right on this
chart. We think the far sum is a total of
$23,214,000. Now, you may feel differently as to the
divisions of pain and mental suffereing to date and in
the future, the loss of earning capacity, but we don’t
think you’ll ever disagree that the totalk figure is
fair. That’s the arithmetic. Consideration is how
much pain is there in being burned over 90 percent of
your body? The only place he wasn’t burned was on the
soles of his feet and where his belt was located. How
much pain is it to go through that Clorox bath every
day, scream and scream and scream until exhaustion and
unconsciousness of a sort arise. How much pain is it
everyday to have the exercise and every day when you’re
forced to turn over when the pain becomes so
unbearable? How much pain is it when you’r told a s a
younster of 14, we coulnd’t save your fingers, we
couldn’t save your hand, and all of the other membes
of his body that couldn’t be saved, You have to look
deeply, seriously, and soberly at the tremendous losses
and then put on a figure. Your job, I suppose, isn’t
an enviable one but in many respects, in many ways, it
really is. It’s a magnificient opportunity to right a
horrible worng.
Perhaps, the last and the greatest
story that I can I’ve you to assist in moments of
solemn deliberation is that of the great Theodore
Roosevelt when he said many times in his lifetime: It
isn’t the critic that counts who criticizes the strong
man that stumbles or the doer of deeds who didn’t do
enough; it’s the fellow in the pit whose face is
scared and marred and in tears; it’s the man who
associates himself with worthy causes and fails; it is
that man who will never be in the company of people
that knew neither defeat nor victory.
That’s the kind of attitude you mush
embrace. That’s the kind of opportunity that you have.
That’s the kind of proud memory you will possess the
rest of your life after you have brought in an
appropriate and adequate verdict for this young man.
There’s no way, is there, to describe a yound man age
14 who never had a chance, a young man whose sun is
setting before it ever came up, or whose moon will
never have any light, or whose star has already come
out from the heavens. Don’t we really say in the final
analysis, its’s only you, jururs true, who can bring his
Christmas message. It’s only you who can write in the
appropriate greeting.
I know and his family knows we’ve
disrupted your lives terribly and that probalby we’ve
visited with you too long but you know and I know your
disruption will end very shortly after your
deliberation. Hopefully, you’ll go back to full active and
happy lives. Jimmy and his family never,
never more, never, never whole, a tragedy never, never
to be undone.
Two thousand years ago, St. Paul left
a message which is th last tought I leave you with
references to your verdict. He said to the
Colossians: Who is this man, Jesus? Look to him. He
not only tells you who God is; he tells you what man is
meant to be.
George Garcia, Jimmy’s closest friend
who couldn’t bear to look at him and, yet, you got to
look at George, handosme and bright and hoepful, and
you were able to see Jimmy’s contemporoarty and able to
see what George is and what George is going to be.
George in his magnificent way told you what Jimmy was
and what Jimmy was meant to be. George’s brief
recitation tells you the destruction of a marvelous
human being caused by the defective design and
manufacture by Lubbock Manufacturing Company.
Dark and dreadful history
has been witten by reason of this tragedy and it is only you
who can now write a glorious conclusion to this fatally
wounded family. Thank you very much.