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$15 Million Verdict on a $100K Offer

Here are the details from Benjamin Cloward:

Harvey, my clients’ son and brother, was a kind and loving fifty-one-year-old who was diagnosed with intellectual disabilities. Throughout his life, his loving parents and brother had provided every opportunity possible to give him an independent life.

Part of that required them to trust others to watch over and protect Harvey. First Transit is a Nevada transportation company that focuses on disabled people, and claims a world-class safety program. On July 29, 2011, Harvey boarded a First Transit paratransit bus to go to his volunteer job. There were rules that First Transit was required to enforce. One of which was to prevent their disabled passengers from eating or drinking on the bus due to the known hazards of choking—and specifically choking to death. First Transit was being paid $230 million dollars by the taxpayers of Nevada to train their drivers to drive the paratransit buses.

The First Transit driver of Harvey’s bus not only allowed Harvey to eat on the bus, but actually assisted him in violating the no drinking policy. Only four feet from the driver, in the first seat directly behind him, Harvey began to choke on his sandwich. He reached for the driver for help, unable to speak, and began to slowly slip into unconsciousness just feet from the bus driver. This all took place while the driver stopped to let another passenger off the bus. As the driver got back on the bus he chose not to look left at his sole passenger on the bus who was now slumped completely into the aisle literally choking to death at that very moment.

The driver violated several more rules, including the First Transit rule to check on his sole passenger every five seconds by simply scanning the interior mirrors—as was required by First Transit. Precious time continued to tick (three more minutes) before the driver finally saw Harvey slumped completely into the aisle.

The driver pulled over, and because First Transit made the choice to save the eighty-eight dollars it would have cost to train its drivers in basic first aid (eight hours of training for an employee being paid eleven dollars an hour), nothing was done to save Harvey’s life.

No Heimlich maneuver. No CPR. No basic first aid. Nothing. This is despite the bus company making $230 million on its contract.

Instead, the corporate director of safety actually testified it was “better and safer” to rely on 911 even though on average it takes 8-10 minutes for EMTs or paramedics to respond in congested Las Vegas traffic as it did the day Harvey died. Tragically, First Transit had a policy in their employee manual that taught the Heimlich maneuver, but at trial First Transit claimed that specific page of the policy did not apply in the Las Vegas market because there was “no law that required it.”

After Harvey choked to death, First Transit told the family that Harvey did not suffer—despite the onboard bus video of the event that very clearly showed Harvey valiantly fighting for life as he painfully and slowly lost his battle over a five-minute period of time. First Transit refused to turn over a copy of the video, telling the family they needed a court order—which forced them to hire a lawyer.

Before trial, the best offer made to the family was $50,000 to each of Harvey’s two parents—for a total of $100,000.

At trial, I conducted voir dire about the issues in the case. To effectively connect with the jurors, I relied heavily on Nick Rowley’s book, Trial by Human, and his DVD set Connecting with the Jury. Nick’s work has been instrumental in the way I conduct voir dire. My co-counsel, Alison Brasier and Charles Allen, helped with jury selection to ensure a fair and impartial jury was empaneled to hear the case.

In opening, I showed all of the excuses First Transit gave to justify what happened to Harvey. I used the principles in Richard Friedman’s book, Polarizing the Case, to show how outrageous the excuses being advanced by First Transit really were. Richard Friedman’s Moral Core Advocacy DVD was also very helpful as the family’s attorneys all felt that the cause was very just and we were on “the high ground,” as set out in Moral Core Advocacy.

First Transit hired a doctor who the defense lawyers had worked with for twenty years to try and convince the jury that Harvey did not choke to death, but rather had died from a heart attack. After a blistering cross-examination of this witness by Charles, it became evident that he was nothing more than a hired gun. Charles’s and my cross-examinations were influenced by David Ball on Damages 3.

One juror commented to defense counsel after the verdict that it was their “crappy doctor” that doomed them. It was Polarizing the Case that helped us demonstrate that to the jury. His opinions were in contradiction with the very clear autopsy report showing that Harvey died from choking. But more importantly, the doctor disrespected the family by using outrageous courtroom theatrics to desperately try to help First Transit win at any and all costs.

Charles also did a phenomenal direct examination of the emergency room physician educator who helped the jury understand just how easy it was to perform the Heimlich maneuver and CPR. I cross-examined the corporate director of safety and showed the many, many significant inconsistencies with her testimony, revealing to the jurors just what lengths the defense would go to avoid being responsible, just like we’d discussed in voir dire.

The work and preparation Charles and Alison did with the clients was impeccable. By the end of their examinations, the jurors clearly understood how much Harvey meant to his family, and how their trust had been betrayed and violated by First Transit. In closing arguments, I used the jury instructions to educate the jurors on the heightened duty owed by common carriers to passengers, and the even stricter standard when common carriers are dealing with folks with disabilities.

Six very brave jurors saw the truth and had the courage to award monetary justice to the family for the loss of their sweet son and brother. The jury only took thirty minutes to render justice. The jurors awarded $15,000,000 for the loss of Harvey to his parents and brother along with the pain and suffering Harvey endured before he lost his battle to live. The jurors in this case spoke for Harvey and provided his voice.

The next step is to seek further justice by passing “Harvey’s Law” in Nevada to ensure that this never happens again.

The lawyers on this case included:

Lead counsel Benjamin Cloward of Cloward Hicks & Brasier and co-counsel Charles Allen of the Charles Allen Law Firm based in Atlanta. Assisting at trial was Alison Brasier of Cloward Hicks & Brasier and Richard Harris of the Richard Harris Law Firm. Seth R. Little of Richard Harris Law Firm and Jonathan Hicks of Cloward Hicks & Brasier also helped during the discovery phase of the case.

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