Case Analysis: Killing Your Case

Presentation from Spine School with Jeremiah Love


Announcer: This is not a coincidence that John happened to be giving this talk today. Whenever I’m looking at a difficult case, like one that really challenges me, and I think that there’s not an answer, then I think back to this talk and what he talks about. He talks about his approach in terms of being creative and persistent but then gives an example that blew my mind in terms of how he got to the end. If you look him up afterwards, USDA, he’s really like one of the premier trial lawyers in the country, done groundbreaking work across a whole bunch of important fields. He’s a super cool guy, and I think you’re going to enjoy hearing from him. So, John…

John Uustal: Thank you. I’m going to ask you to bear with me at the very beginning. The first time I gave the talk, it was right after we had settled this case, but I was asked to do a talk on “case framing,” and that’s where John saw me give this talk. Since then, a lot of people have asked me to talk about this case, and I keep shortening it and shortening it because I heard some comments even then, like, the interesting part was the case, not your dumb ideas about how to do the case.

I was planning on giving the shorter one, but I was talking to John right before I got up here, and he’s one of the few people who thought there was some value in the beginning part. I haven’t actually looked at these slides since March, but together I’m sure we can figure out what they are.

The talk was on case framing. We don’t need to talk about that. I don’t actually believe in it. The idea of case framing is that there’s all this evidence in your case, all these facts and different things. And, so, you’re going to focus on what you want to focus on, not get into all the rest and, of course, there’s some value in that, right? You’re focusing on the key elements of the evidence that you need to prove your case.

And, then, you put themes, you use themes about this evidence that will kind of collar how the whole evidence that you present is seen. So, there’s nothing wrong with that. I’m not saying there’s anything bad about case framing. It’s great. It’s just that I think it’s too late. I’m going to show you when we get into this example that there’s so much you can do before the trial starts that it’s maybe a little bit lazy to count on being such a great lawyer and all these things that we’ve been taught about case framing that you’re going to go in and win a difficult case by just being a great lawyer. And there’s so much you can do earlier. So, that’s what I want to talk about.

In my opinion, there’s three ways to win a really, really, difficult case. Be a great lawyer, which is what you guys are studying this morning. That’s one of the ways. The best way is, have a really bad defense attorney. I have two examples, and these are true. These are cross examinations of my… The first one is a 92-year-old with a clear liability, pharmacy mis-fill case, and her life was really messed up. That was a big verdict. The defense attorney said to her, “Honestly, did you think that you were going to live forever?”

This other one was a death case of a 15-year-old, and it wasn’t part of our economic plan or anything. There was no future earnings. But her mother had mentioned on the witness stand that she hoped to be a model one day. And that’s what the defense attorney said in closing argument. So, those were big verdicts. But that wasn’t because of any great skill on my part.

I want to talk about the third way today. You should be the best lawyer you can, and that’s in the courtroom working on all your skills. But once you go into the courtroom, you’re trying the case that you brought into the courtroom. And, so, the third way to win a really hard case…

That was just a joke. Now I remember that. I remember after the presentation because they were going to take that out because no one laughed. But it’s still there. No, that’s not it.

So, I’m going to show you a method that we use in my firm, and I’m going to tell you what I call it. But I’m a little hesitant to do it because I know that it could be taken out of context, or you might misunderstand what I’m saying. But I’m going to tell you because I have found when talking to lawyers in my office, younger lawyers trying to teach them these ideas, it’s hard to get.

And, so, when I tell you, I’m going to push, and what I call it is “fabricating your case.” Fabricating your case. You can understand immediately why I’m worried that that’s going to be taken out of context. But if I say anything less, and I’m trying to think of other things, then it’s too easy to be lazy. I’m talking about nothing less than building your case with all the tools that you have at your disposal and fabricating it right, building something, fabricating, building this so that when you walk into the courtroom, you have a much better case than what your client came to you with. You’ve fabricated a new case. But that’s the last time I’m going to say that because I am really, even saying it out loud, I worry about someone taking it out of context.

But you’ll see, if you really listen to this, the example I’m going to give you in about 10 minutes, I think it will make sense.

These concepts are what I had cut out of future presentations, but there was something in here that John thought was valuable, so I’ll go through it with you. When you are trying to construct the best case to bring into the courtroom, I think it’s valuable to do it – and this is an iterative process. You do it again and again and again. But you take on a different mindset in each phase.

At the beginning, we call it “Detective.” Next phase “Idiot.” That’s the part that John liked. “Sculptor” and “Vandal.” It will make more sense in a minute.

So, what is Detective? We all know that a great case… Look, sometimes you do get these cases. It’s really strong liability, the damages are obvious to the jury, and there’s coverage, or it’s a company that can pay. Well, you don’t have to be a great lawyer for that case. So, that’s not what we’re talking about. I hope you have many of those cases so that you can use the additional time and money to work on a different kind of case.

Let me talk about that for a minute now. It’s unfortunate, I think, that right now in this country we are the only hope now for a lot of people to find out what happened to them. They will never know if we don’t do our job. We get to help people and make money doing it. We’re really lucky. But I think that it is easy to focus on these cases and forget about the fact that this is a profession and we owe something to the people whose only hope…

We shouldn’t be their only hope. There should be better regulators, and big companies shouldn’t be doing these things in the first place. And if they are, they should be caught by law enforcement. In the case that I’ll show you, you’ll see there was serious misconduct. And they almost got away with it. They came so close to getting away with it.

And there was a little girl who was horribly burned and had amputations on all four of her limbs. And she would have had a horrible life, not just because of her injury, but without money to ameliorate all the horrible things that you can imagine she’s going to have to face. Her life would have been far more horrible.

But when her case came in, it did not look like this. And, so, if you have lots of these cases, great, but that means you have the time and money to put more effort into investigating cases that don’t seem to be cases when they come through the door.

The client comes and tells you something. Sometimes right there, we think there’s not a case, or we do a preliminary investigation. The first phase that I want you to think about, and it comes up again and again as you go through the process I’m working. You can’t do this on every case. It has to be a really serious case to put this much time and effort into it. But when it comes in, you’ve got to find out all the facts. So, “Detective,” this is just a way of trying to say, “This is what the client told you.” But there’s all these different things that you can go out and find.

This is a story… It was actually one of my… Probably, maybe five years out of law school, I had a case that my firm was going to turn down, and there was a serious injury. The client told us that he was wearing a seat belt. It was marked “unrestrained” in the police report, and there was so much other evidence that he wasn’t restrained. But I was the one who had talked to him. He said that he was wearing it. We had an investigator canvass the area, and then I went once, and then I went a third time.

And the third time I went, I was knocking on the doors near where the crash happened. One of the neighbors came out and said, “Oh, yeah, I remember that. The seat belt was hanging out the window after the crash,” which, obviously, is not going to happen if it hadn’t been worn. Immediately, they were offering significant money on that case.

So, it was just an early lesson in doing more on the cases that the client really needs you. I sent the investigator, or I’ll even send the investigator twice. But sometimes you’ve got to go out and do it yourself. This is just me trying to give you an example. Sometimes it does pay off. Just because you go out nine times in five different cases and nothing happens, keep doing it. Keep doing it. I was so lucky that the first time I did that something good happened. So, it’s like someone who goes to the slot machine, pulls the slot and wins, and they’re like, “Oh, this is great,” and they keep doing it all the time. Well, I’m not lucky. But since then, I’ve had all types of failures.

And when I say I want you to investigate more cases that probably aren’t cases, you’re probably right on most of them, and you’re going to spend time and money, and in the end they’re not going to be cases. That’s okay. Your job is to find the truth. But sometimes they are. And if you don’t do it, no one’s going to. So, go out and do everything you can to find every piece of evidence.

The next phase I call “Idiot.” So, we really do, at my firm, talk about the different phases and what are we in and what are we thinking about. Let me try to explain this.

There’s a saying, and it’s so long ago that I can’t remember his name. He’s a Buddhist monk who lived in the 1880’s. He first said this, but you probably heard it because it’s been westernized. “To the beginner there are many paths. To the expert, few.” So, think about that for a minute. “To the beginner there are many paths. To the expert, few.” It goes right back to why we’re likely to turn down a case even with very significant injuries when it’s probably not a case.

Our experience there is in a way working against us because we’re probably right. You look at it, you look at the initial facts, you do a preliminary investigation, don’t put a lot of time into it, and then you say, “I’ve been doing this a long time. That’s not a case.” You know what? You’re almost, let’s say, 90% right. That means, you’d have to investigate 10 of those cases, put a lot of time and effort just to find the one.

But the thing is, you’re not 100% unless you really do a full investigation. And all of these phases of thinking about your case, I want you to… And it will make more sense when I show you an example. But I want you to do it again and again and again on your big cases. So, as you gather evidence, then you say, “What possibly could explain all the different pieces of evidence? What possible case could I have?” So, this is purely a creative process because you’re never going to be able to test a case that you can’t envision.

So, you have to step back and forget about investigation for a minute, looking at a potential case that you could present to the jury early in the case. A defect in a product’s case, which is what I’m going to tell you about. What could the potential defects be? And I want you to think about that with a beginner’s mind. If you know anything about Buddhist concepts, or just, unless, like an idiot. Don’t say, “That can’t be because of X, Y, and Z.” Your mind is open to the possibilities.

And just a quick story about that case up there. My partner wrote a book about that case up there. That was the first case I tried. I was a very young lawyer, and I’m still partners with the guy who I tried it with. I think it was this Monday that this book just came out that he wrote about this case. But I have worked it up. When I started at that firm, Bob said to me, “Don’t work on any other case.” So, for like three years, I worked on this one case. And then we went to trial. It was a big case. It got a good verdict. It was on 60 Minutes. Some documents came out that [company] had kept secret for a long time. I’m only adding that because the book just came out.

Yeah, you should get it. Go to Amazon. “The Memorandum.” It’s on Amazon now. I didn’t mention that when I was giving this talk the first time. The reason I have it up there is, I was a beginning lawyer, and so I had done most of the workup of that case. I will never forget how many times… It was a six-month trial. But, again and again and again, I would say, “What case is the defense trying?” They were defending a case that we weren’t bringing. And it was only later, years later, I realized, “Well, they were defending the standard post-collision, fuel-fed fire case.”

I didn’t know what it was when I was working it up. I was ignorant of that case. So, I was forced to develop a different case. And they didn’t even defend it. So, another advantage of starting out with an open book, with a clean page, and it’s not just that you’ll see things that you wouldn’t have otherwise have seen, it’s also that you will often walk into the courtroom, and just imagine for a minute that you’re presenting a case that the defense is not defending. They’re defending some other case. It’s happened to me many times since then, and now I’m always open to it.

A lot of times, defense attorneys, they just don’t want to deal with certain evidence, or they don’t know how to so they don’t, and they don’t defend the case you’re bringing. The more creative you are about fabricating your case – again, every time I say that, I don’t want that taken out of context – but creating your case, the more likely you are to have a much easier chance of getting a verdict because they’re not even defending the case you bring.

So, “Detective,” you go out and find all this evidence, everything you can. If it’s a big case, even if you’re pretty sure there’s no liability or there’s no coverage, you’re doing everything you can to find every piece of evidence. Then you’re looking at it with an open mind about what type of case you could bring. Then the next phase, I call “Sculptor.” You build that into a case.

You’re going to do this again and again because you’re going to test your case, and the truth will show itself. But at the “Idiot” phase, you’re not worried about the truth. It’s just open page. Now, you take all those facts and try to put them into a case. So, you’ll get client testimony. Either you’ll have the client testify in deposition and you’ll know what they say. You’ve got the evidence gathered by first responders, evidence gathered by your investigators, evidence obtained in discovery, evidence created by your experts, testimony by known witnesses. So, that’s what you’ve got.

But in the “Sculptor” phase, I want to talk about creating your own evidence. Again, I worry about that being taken out of context. But, of course, what are you doing when you’re creating evidence? You talk to your experts. You hire an expert. That’s creating evidence. If you don’t bring that expert into the case, what other kinds of experts could you bring? You’re creating evidence.

What will the expert say? You need to talk to them. You want them to skew the case your way. In this example which I’m about to show you, that was a constant problem, that the experts were too expert. And in the end, I will prove to you that us idiots were right, but they fought us every step of the way. But sometimes a good expert will be open. You show them a book. You show them an article. You learn more about the subject. And then they say, “Okay. All right. Maybe he’s right about that.”

So, what can the expert do to get comfortable? Sometimes they’ll say, “Well, I don’t know that, He or She.” “What testing can you do? What research can you do?” And this is for you, not your expert. “What testing can be done to prove…?” Maybe the expert will do it. But what testing can be done to prove or disprove your case, what additional evidence, and then exhibits. Exhibits are great. They’re so visual. And oftentimes when we build exhibits early in a case, we’ll disprove something about what we thought.

We had a complicated case of a drainage grate that was put in wrong, and the guy riding his bicycle hit it and had very, very serious injuries. But when we actually… It was all diagrams and schematics and trying to visualize it. We actually built the cement, the grate. And what we were originally thinking was not true. But there was something wrong because it had moved out of the way, the grate. There were many subcontractors. The one we were targeting was actually not the one at fault. Until we built the exhibit, we wouldn’t have known that.

And, then, obviously, once you’ve got your exhibits, then you’re going to use them at trial. But these are all things you’re doing to build the “Idiot” case that you came up with that might explain the truth in a way that you can win in the courtroom.

So, often testing… I mean, look, always, your first thoughts are not true. By the way, you go through this process, you might not separate each element out, you might try to do it all at once. But as you are working your case, you come up with ideas and then, sometimes, you say, “Oh,” and you get another witness to testify, “That’s not my case.” And you evolve. I’m just asking you to do it in a more deliberate way.

And then “Vandal.” I worked on the case I’m going to show you with two brilliant lawyers. One of them is about a five-year lawyer, and she is brilliant. But introducing her on this case to these concepts was hard because we all get married to our theories. If you say, when you’re talking on your team about your case, “What we already know,” boom, you’re in trouble right there. Nothing is ever established. Everything has to be… You have to be willing to destroy it to build something better.

So, Detective, Idiot, Sculptor, Vandal. Here’s an example. It’s a pressure cooker case. In case you don’t cook with pressure cookers, the pressure cooker is designed to have higher, to cook quicker, because it adds pressure to the heat. And, so, the food cooks quicker. Most pressure cookers have certain similar parts. You have a lid and the main container. The lid usually screws on. It’s not actually screwing, but there’s lips so when you close it. There’s a regulator so that it tries to keep the pressure within a certain range, so the regulator doesn’t activate until the pressure gets a little high. And then that’s the noise you hear when you’re cooking with a pressure cooker.

If for some strange reason, maybe something gets clogged or that the pressure starts to build to the point that the pressure cooker could actually rupture, the metal could explode out, there’s a secondary relief to relieve pressure, and often there’s a third relief mechanism. The one we had in this case was on the side. So, there was a rubber gasket that would be forced out if the pressure got high enough, and it was a final – I don’t want to use the word “failsafe” because that comes up later – it was a final way to make sure that it wouldn’t explode.

And, then, when it’s under pressure there’s a lock. Now, that’s very important. You can’t open a pressure cooker under pressure. That’s been that way since the ’50’s which, by the way, is 70 years ago. I think of the ’50’s as like 30 years ago. So, they’re never allowed to open under pressure. That’s the basics of pressure cookers.

So, this is the case and what it looked like when it came in. There was a grandmother, she lived in the house with her son and her son’s three-year-old daughter. Actually, she was a little younger than that at the time of the incident. The grandmother was bathing Samantha in the sink next to the pressure cooker where she was cooking, and it was about eight inches between the sink and the pressure cooker.

After the incident, the police came, the emergency personnel, and she told police that she dropped the pressure cooker on Samantha. The police started an investigation into child abuse because they thought it might have been intentional. There were no signs of any problem with the pressure cooker. It looked completely intact. It didn’t look damaged. Actually, the fire department did an investigation and looked at the pressure cooker, and the CPSC was called in. I’m just giving you all the facts. Obviously, I know you wouldn’t conclude that there was no case because the CPSC, as underfunded as they are right now, had concluded there was no defect. So, that’s how it came in.

I had added a slide in the shorter presentation, which was just to say, this is one example of four over the last three years, four cases that my firm has handled that have been turned down by multiple other firms. One of them was turned down by seven other firms. And these four that I pulled out to show you, three of them settled for over $20 million, and one of them, there was a $22 million verdict. But now there’s a bad faith case.

My point of that is, this case, along with those others, was turned down by other firms. And I think you kind of can see why. The odds of that, when you first look at it, is that it’s not a case. I just urge you to not put too much stock into the fact that other firms have turned it down, or other attorneys have looked at it and turned it down. It’s probably not a case if they do, but not definitely.

And, then, here’s where I started talking about experts. I don’t know what the other firms did to investigate it, I actually suspect that they didn’t hire experts or do anything to look at it. But we did, and we hired one expert who said he looked at the pressure cooker. He said, “There’s nothing wrong,” and he bought an exemplar, and he looked at it and he said, “This pressure cooker is not defective.” And then we hired another one.

Listen, these are very serious injuries. What happened was, when the pressure cooker hit her, she was very badly burned. She has scarring up to her chin and down her whole chest. She has scarring on her back. These are disfiguring scars. She was in the hospital for a year. She got an infection, and she lost all of one leg, one hand, part of the other hand, and part of her foot on the other leg. So, it’s a catastrophic case. So, she’s counting on you, right? So, we hired another expert. They said the same thing. They didn’t do any testing at that point.

We filed suit anyway because the company wasn’t going to talk to us without a suit. So, sometimes I feel bad about that because a lot of times we’ll file a suit and then I’ll go get a deposition, and then it will turn out that the company didn’t do anything wrong. If you’re investigating cases like this routinely, then you’re going to find out that a lot of times your gut was right, and there’s not a case there. But at least you got to the truth.

In that case, I’ve never had a problem. We’ll call the defense attorney and say, “Look, we’ve finished our investigation. We don’t see liability, and we’re going to drop the case.” I’ve never had a problem with that.

So, in this case, we filed the suit so we could talk to the engineers who designed this pressure cooker. Well, it never ceases to amaze me, in different industry, that I find out that there’s no engineers who work at the company. So, they had somebody who testified about this pressure cooker. And, basically, he said, and this will become important, he said that… They’re basically a distributing company. They have lots of brands, but they wanted to sell pressure cookers to the Spanish-speaking market in the United States. And, so, they wanted a brand that would appeal, they didn’t want to build a new brand.

So, there’s a company in Mexico called Vasconia that builds very, very good pressure cookers and is known for the quality of their pressure cookers. But they didn’t want to import expensive quality pressure cookers. They just wanted the name. So, they licensed the name, and then they hired a company in China that already manufactured pressure cookers to produce a cheap pressure cooker. And then they imported it into the U.S. and put the Vasconia name on it.

Now, that fact, if used correctly, it is very important we found out in the focus groups. We focus-grouped this case a lot, and the first few times we lost. Putting that back where it belongs is very important. But I’m getting ahead of myself.

Let me tell you one other thing. We almost declined the case here before filing suit because… You know that we won. Try to put yourself in my shoes back then. You’ve got the experts you’ve hired saying there’s no case, there’s nothing wrong with it. You’ve got all these other intangibles that are against you. The police are investigating for child abuse. There’s going to be comparatives. She was bathing the baby while she was cooking within eight inches of the pressure cooker. And you can’t conceive of a case.

So, we started to go through everything one more time with the idea that we might reject this case. And I noticed that the father’s statement to the police, he said that he heard a loud noise, and he heard his mother screaming, so he started running to the kitchen. And as he was getting there and about to turn the corner, he slid on all the water. So, the first few times I read that, it didn’t strike me as anything. But then I thought, “Why is there all this water on the floor outside the kitchen even?”

And, so, after that, what we did was, we took all the police photos and went to the house and figured out where they were in the house. And, so, I’ll never forget, sitting there, it suddenly hit me. These are all pictures the police took because there’s debris. There’s food debris. Over here. All the way over there. Of course, in the sink. But all the way over there. Some of it up the wall close to the ceiling. Some of it on the ceiling. That pressure cooker opened under pressure. You don’t get chicken on the ceiling. Something went wrong.

And, so, once we had that and the corporate representative, when we filed the suit, testified that he called the…this thing. He’s not an engineer and was very imprecise with his language, but he called this and the one on the side a failsafe. It’s a pressure relief valve, technically. But, I thought, “Wow, that’s a great way to put it.” In a way, he’s absolutely right. He’s telling the truth. If the pressure’s getting too high and the system is failing, it’s going to fail in a safe way. It’s just going to bleed off pressure.

But if it’s a failsafe, it has to fail safe. It can’t fail dangerous. And, so, that’s when we started to think, when that thing opens, it sprays hot steam out. It’s on the side that’s pointed towards the sink. And, so, apparently, it can shoot out food and everything and get all over the ceiling and burn the kid.

Now, I don’t know why the grandmother said she dropped it on the kid, but we’re just beginning. We’re going to have to figure that out. But right now, it does seem that when the pressure relief valve opened, it could have shot hot water and created the whole incident.

So, “Sculptor” phase. We’re going to try to build a case around that failsafe being defective. It shouldn’t be on the side. It couldn’t be shooting out steaming hot liquids and steam at people. So, what evidence can we create to build the case? We did testing with these experts. I want to tell you about that testing. What we found was, it does activate in a startling way. And it’s forceful. It would seem at first that there was enough steam and heat coming out to burn the kid. There wasn’t. It just wasn’t enough that could have caused those burns.

Let me tell you about that testing. One of the attorneys in my office was there at the expert, and we’re testing an exemplar. That side relief valve, when it opened, it caused the pressure cooker to fly off the stove, fly through the air. It didn’t hit anyone. But I knew that. So, when I say, “get to the point later,” when I say, “I’m an idiot,” you’ll know that I really am an idiot. It wasn’t just because that was a phase in this. I did something very stupid. But at this point in this one, we knew that the testing could be dangerous.

So, the expert said, “It’s not defective. Just like I said.” And as we often find, they’re done, and they charge you a lot of money, and they want to get paid, and they’re off to their next thing.

So, Vandal is tearing down what you’ve now disproven, what you know is not true to find out what’s left. What do we learn from that testing beside the pressure value blows in a startling way? It blows in an unpredictable way. It was hard for us to get it to blow. We weren’t sure when it would. It’s a really bad relief valve. Sometimes it would blow early. Sometimes late. And it blows with enough force to launch it across the room.

When we get to testing the case, this is our first testing. All of those things are going to be critical parts of this case. So, that wasn’t wasted testing. We had to do it to find those things out. But we also found out that what we thought the case was, it was not. The side pressure value couldn’t have caused these injuries.

Let me try and take you through, now, as we iterate through each of these phases again and again. The exemplar testing showed that this pressure cooker cannot open under pressure. The experts failed to find a defect. We say, “Okay, let’s explore this failsafe valve. It doesn’t fail safe and can cause injuries, but our testing shows that doesn’t explain the injuries.”

Okay, well, let’s talk about, it’s startling. What if she picked it up because she was scared, it startled her, she got scared it was about to explode, and that’s why she panicked. But once we started trying to prove that case, that’s a very serious, comparative case. She picks it up and drops it on the baby. But it blew in such a startling way, there’s still, I think, liability on the company for having such a scary pressure relief valve.

But that doesn’t do it. That’s not what happened. The lid was off the pressure cooker in the police photos. So, why was it open? And we have those photos showing it opened under pressure. So, it opened under pressure. You and I know it, right, as lawyers. You know in your gut that thing opened up. There’s no reason why there’s food up over there. But when we’re talking to the experts, they say, “Well, we looked at it, and it kinked.” So, they do testing just to prove it to us. It cannot open under pressure. But it did. It can’t. But it did. I know it did. It can’t.

So, at that point, we said, “We’re going to have to find new experts. But we had already attempted to. Remind me if I forget to tell you about the experts right before trial. Finding experts on this was… I called everybody I knew to try to find new experts on this. But at that point, there was another factor coming into play, which is, we still don’t have a case, and this is starting to cost a fortune. So, I said, “Let’s do our own testing.”

And, so, we had someone in our office who is good, mechanically. He’s great. I actually went to high school with him. He does most of our exhibits. He fabricates them. So, he started doing the testing, and we did a lot. We probably bought 800 pressure cookers on Ebay of various kinds. The actual ones, we could get current models. It was hard for us to get ones that were built four or five years earlier in the time frame. But the current model we could, and we tested, tested, tested.

Well, some of you will probably guess what happened. Katherine, who’s an attorney we work with was standing here. Michael was standing here. So, what is that? A foot and a half between them. The pressure cooker launched again, and it went between their heads. I don’t know what would have happened if it had hit one of them. But, thank god, it didn’t. But that was on me.

We already knew that it could. That was really stupid. But there is a ‘but” here. That cracked this case open. And I don’t know, if that hadn’t happened, I don’t know if we would have ever gotten… This company came so close to getting away with this. But what it did is, it forced us to come up with a safe way to do the testing. And what we came up with was, “Why do we need the heat? We don’t need the heat. We don’t need the pressure. All we need is to activate the lock. We’re using the heat and pressure. That’s what activates the lock. We’re testing the lock to see if it can open under pressure.”

So, all we did was put a little mechanical thing inside the exemplar pressure cookers, activated with your phone by a Bluetooth, pushes up the plunger, and it’s locked. Now we can see if it opens under various circumstances.

And then somebody said, “We can do that to the subject one, too.” So, all the exemplars, they’re locked. They lock. The experts are right. They don’t open when they’re locked. And they all lock when they’re under pressure except for the actual subject one. We put the Bluetooth thing in there because, obviously, we can’t do destructive testing because we never put heat or pressure to it.

We put the Bluetooth thing in there, activate the plunger, opens. It’s a fake lock. It doesn’t actually lock. This was hard to go back to the time period when this one was manufactured. It took a lot of work. It probably took eight months of Ebay and calling. We found one from that time period. It opens. It doesn’t lock. There’s something wrong during that time period with those locks.

So, we opened up the exemplar. The real exemplar. Because, remember, the reason why the experts are saying there’s no defect is because there is no defect in the exemplar they’re testing. The exemplar, the one we had from that time period that our subject one was manufactured, there’s a piece in the handle that activates the plunger, is a tiny bit shorter. And, so, we’re sure that that’s… We can’t open up the handle in the subject. But now we know.

One more thing that’s going to become important later. This was certified UL-compliant, UL-tested. What the Chinese factory had actually done was, they had made a five liter and a seven liter, and they had done UL testing and hired an outside lab, and it had passed. Our defendant, when they went to them and said, “No, we want a seven quart….” They wanted eight quart, which is 7.4 liters. It’s not standard. So, they had to change the sizes, and they didn’t redo the testing which UL requires. If you change the product, you’ve got to redo the testing.

So, they didn’t redo the testing, and they certified it UL-compliant. But what had happened was, and I have no explanation for this. But when they went to the bigger pot, they took the seven liter, they made it slightly bigger, and then somehow they took that one piece from the five quart. Somehow, they probably just mis-spec’d it in the specs. Wrong part number or something. And, so, they ended up with the wrong part.

And at some point, they figured it out. Because they changed it. Fixed it at some point. So, when they’re giving us… The company gave us some exemplars, when our experts are looking at it, they’re experts are looking at it. To me, they’re deliberately playing the odds because they know.

Listen, if you ask me, 99 times out of 100, they get away with it. Maybe I’m wrong. Maybe all you guys would have taken this case, but most people I talk to say they wouldn’t. So, they were going to get away with it. Which makes me think, “How many other companies are getting away with this right now?” And there’s people who need us to solve these mysteries.

So, one more thing. Just to go through this real quick on how it opened. It’s defective. It’s not allowed to open under pressure. It did open under pressure. She says she dropped it, but dropping it doesn’t open it. So, something else happened. But how did it open? And the solution to that also solves the mystery of why she said she dropped it.

So, we went through a lot of iterations on that. Let me just go back to this real quick. If you see this handle, it’s weird. It’s got that hole in the center. It’s like, the bottom and top that you know it’s closed because they come together, but most pressure cookers, the bottom and top part of the handle come like this. And there’s no space in there.

So, initially, we started thinking, “Well, maybe when she got scared, the thing started blowing from the side, she grabbed the top maybe with one hand, and she grabbed the bottom with the other, which she shouldn’t be able to do, and then she opened it and panicked as she was moving. I didn’t really like that because it makes her look stupid just from a strategic point of view. But, secondly, it just doesn’t sound right. Why would your hands be moving in an opposite direction?

So, at some point, somebody said, “What if, when that side vent opens, it doesn’t fly straight.” I think Michael, who was there for both of the pressure cookers flying through the air, said that it seemed to be going like this. So, this video is not the exact same pressure cooker, but we found in our video it has the same kind of side relief valve. So, look what happens.

(video playing) Do you see it spin? This is in slow motion. But do you see it spinning?

Let me say a couple things about it. Let me backup. I’ll just leave it on. It’s hard not to watch it. I’m going to back it up, so you’ll watch me.

So, the first thing is, I told you it was startling, right? Is that what you imagined? Is that what you felt? When we knew that it was startling, you got to prove that. You’ve got to make the jury feel that. We had spent a lot of time showing how startling and scary… Because if we’re going to say she panicked, she panicked, because anyone would panic in that circumstance. We had to prove that. That’s another example. You have to fabricate that. You have to create evi… You have to show them with noise, preferably, and it’s much more powerful with noise. That was just a YouTube thing, but we created our own exhibits with testing to show how scary it was when that happened.

The second thing is, it’s spinning. And if you remember, she could have grabbed just the top part. And if she’s holding the top while the thing is trying to spin, that’s why it opened. And, also, it exploded out of her hands. She dropped it, right? In her mind in that split second, it was gone. It did come out of her hands, and she did drop the top, too, right on top of it, right as it exploded open. So, she was absolutely, 100% accurate in what she was saying.

Here’s where we’re ending up. They licensed the “Vasconia” name. It starts with a fraud, doesn’t it? Doesn’t it start with a fraud? They’re getting a high-quality name and giving you a crappy pressure cooker. All I can tell you is, that is fundamentally important to juries in our focus groups.

She did drop it. Don’t fight that. It was true. But she dropped it because it exploded out of her hands.

Why did this happen in the first place? She had overfilled it. That’s why the pressure started to build up. But this cheap Chinese pressure cooker didn’t have a fill line. Real Vasconia’s do. They have a fill line, so you know where to stop.

The pressure relief valve is startling. There’s rotational force. The handle design is separate.

There was a neighbor we found who came running over after, and she said that the grandmother was saying, “It exploded. It exploded. It exploded.” So, even though she never told the police that and she didn’t tell us that, at the moment she said that there was water on the floor, food on the ceiling. The exemplars, we now know, the original tested exemplars are not really exemplars. There’s a wrong part in the subject lock. There’s the UL-testing fraud that we found. They certified it when they hadn’t redone it.

And here’s another important point about her cooking right next to the sink where the baby was. We thought about this a long time, and we were able to get this from multiple corporate reps because, think about it, you’re cooking. You’re holding. You’re right here. It has to be designed to operate safely inches from a human body. So, that, we thought, took a little bit of that away from that defense.

This is how the case started, just to go back. You remember. The baby was right next to the stovetop. She dropped it. There’s a child abuse investigation. The pressure cooker looks intact. CPSC and the fire department find no defect. Case has been rejected by other attorneys. Your own experts say there’s no case.

So, that’s my point that I was getting at, at the beginning. You’re not walking into the courtroom and winning that case because you’re so good at case framing or any other trial skill that you have. Maybe you get something out of it. I don’t know. You’re a phenomenal lawyer in the courtroom. There’s going to be massive comparative. But now look at this case which is after focus grouping and all the work we did.

You guys have already put it together in your head. You all know it. But look at it altogether.

They licensed the trusted name, but they didn’t use real ones. They used fake ones. The factory altered an existing model and used the wrong part. The defendant didn’t do the required UL testing on the new model which would have revealed the defect. Instead, they submitted misleading documents to UL. And then they advertised the pressure cooker as UL-tested.

Two or three years after, someone must have discovered the defect because they fixed it, but they didn’t do a recall. They didn’t notify the CPSC. They gave us a good designed product. There’s no fill line. When she filled it that day, she didn’t know she overfilled it. When it fell back, they made it, it was so startling that it scared her. She grabbed it by the handle. The handle had a separate top. The rotational force caused the bottom to rotate away and explode out of her hand. That’s why she was shouting, “It exploded.” That’s why there’s food everywhere. Water on the floor, even outside the kitchen. Obviously, it was missed because we were testing what we thought was an exemplar, that wasn’t an exemplar.

So, you don’t have to try that case. How many of you think I had to get a verdict on that? And look at the case the way it came in.

It was a $27 million settlement. I’m proud of the result on that case, but I can tell you that the other thing I felt after that was fear of other cases in my career that I had turned down and companies got away with knowingly doing bad things and then covering it up and then fooling me because I just didn’t dig hard enough and let down someone who needed me, like Samantha.

Think about what her life would be like if we had turned down that case. It’s just chilling. But the thing about her, the most remarkable thing about her, even today, but certainly when I first met her is, she does not realize how cruel the world is going to be to her very soon. She’s still too young. Your heart goes out to her. You want to help her. And money can solve…. Look, she needs new prosthetics every year. She needs money. That’s our job. That’s what we got to do. We’ve got to catch these companies when they do things like that.

I had intended to do the shorter one and go through it communally and just talk about it, but then I just started talking, talking, talking, talking. It’s better when there’s questions throughout, but now here we are at the end. Does anyone have any questions?

Unidentified Speaker: What happened with the CPSC investigation?

John Uustal: They’ve reopened it. We’ve met with them twice. It’s been quite a while now, but it’s still now open.

Unidentified Speaker: What state is that in?

John Uustal: Florida.

Unidentified Speaker: Did they recall it?

John Uustal: No. We’re hoping… Interestingly, CPSC cannot force a recall. I don’t know if you know that. You know those babies that are dying in the… They’re like front-facing rockers, I think. CPSC has asked that company to recall it, and they just refused. I didn’t realize the law, they’re not allowed to order a recall. But, that said, it’s very rare when they say they want a recall that companies don’t. So, our hope is that they’ll order a recall.

Unidentified Speaker: When did you guys find out that the grandma had filled the pot all the way up, that there was no fill line?

John Uustal: It was clear from the beginning that the relief valves don’t just go out. Something had to go wrong. Something had to get clogged or it could have been overfilled. It was at the corporate representative deposition, that first one, where he started saying she overfilled it, that at first I thought… I hadn’t thought about that possibility. And the more we thought about it, it made sense.

So, we immediately started thinking, “Well, how do we deal with that at trial?” And then when we saw… We had all these other exemplars, meaning, other designs. And they had fill lines. I don’t cook with a pressure cooker. I didn’t know that. So, it just kind of evolved. But that was initially basically a defense. But it made sense. I think it was true. I think she overfilled it.

Unidentified Speaker: You found that lock different part by using — finding an exemplar.

John Uustal: A real exemplar.

Unidentified Speaker: Did they not have drawings or designs of this prior, you know, model that had that — that had it like that? Did you ask for designs of the cooker?

John Uustal: Yeah. We had designed drawings. It’s interesting. I never went and checked to see if there was a different… I wouldn’t have had anything to compare it to, though. I was going to say, I didn’t check to see if there was a different part number for the time when it was built to the way it’s currently built. We didn’t have two sets. We only had one set. So, whatever the part number was specified in there. I can’t even check that now. You couldn’t tell from the design that it was too short. If you had, it wouldn’t have happened.

Unidentified Speaker: Just looking at the video you had of the spinning top, how did you find that? When did you find that in the scope of your investigation?

John Uustal: Right before trial. It was trying to get ready for trial. I wasn’t sure we were going to be able to use that as a trial exhibit, but I wanted something… That video, the truth is, that video didn’t tell us anything. It was, I was trying to show what we knew to be true, because Michael had seen it happen. What happened was, shortly before trial, we did a motion to amend the complaint for punitive damages, which you have to do in Florida, and we told them, we demanded the $27 million and said, “Pay it or we’re going to trial, and it has to be paid before the hearing.”

And then the day before, or it was actually a few days before. I don’t remember exactly, but it was right in that time frame, we deposed their expert. We did two things. We sprung a lot of this on him, and he admitted a lot of things. In the end, he admitted… He wouldn’t use the word “defective,” but he admitted that it didn’t lock and it has to lock. And he didn’t like us saying “exploded,” that it exploded open. So, he said it “erupted,” which I thought was way better. It erupted.

I actually knew the defense attorney, and he’s a good guy. And, so, I trusted him. I actually also told him to come in with the company, and I told them the case about two days before the deadline. I’m sure he didn’t know. They had given him the good exemplars. The defense expert didn’t know either. So, all that happened, and then they paid before the deadline.

Unidentified Speaker: As follow up on that, looking back, would you have videotaped your Idiot testing that you did, just like when it’s flying — even though you wouldn’t want that when our employees come after you, you took their head off —

John Uustal: Well, they should.

Unidentified Speaker: Yeah, but you had — you have people that saw things happening, you know —

John Uustal: Yes.

Unidentified Speaker: — during this testing; would you go back would you say, let’s videotape this?

John Uustal: We were videoing, but we had a camera focused on the pot, and it flew out of screen immediately.

Unidentified Speaker: All right.

Unidentified Speaker: When did you find out that they changed the design, or was that just apparent because the new ones didn’t have the defect —

John Uustal: Right. It was just apparent. My only proof of that is… Well, look, they changed. I have proof that it changed because all the ones now are different than the ones at the time. The question is, “Was it intentional?” Did someone say, “Oh, we’re using the wrong part,” and they change it. But I don’t have any doubt. That’s my opinion. But that’s all the evidence I have. I don’t have documents or anything.

Unidentified Speaker: John, I know people have more questions. Can we take a break and then take more questions?

John Uustal: Perfect. Thank you for letting me talk.