Suzuki – $161M Verdict
- 17 August, 2023
IIf there ever was a do-not-miss episode, this is it! Bob Simon sits down with fellow Justice Team lawyer Robbie Munoz and Trial Lab’s Gabe Houston as they recount the gripping product liability case against Suzuki. A defective brake on a Suzuki motorcycle led to a catastrophic 2013 crash, setting the stage for a legal showdown that resulted in a $161 million verdict, punitive damages included. Journey with Bob, Gabe, and Robbie as they unravel the complexities of presenting scientific concepts to jurors, share their strategic shifts across two trials that led to an astounding $150 million punitive damages win, and emphasize the importance of persistence and adaptability in achieving justice against corporate giants. This case provides a riveting exploration of the pursuit of accountability and the power of storytelling in the courtroom.
Robbie Munoz, Simon Law Group
Gabe Houston, The Trial Lab
Transcript
Bob Simon (00:00):
All right. Welcome to this edition of the Justice Team Podcast, and today we’ll be talking about the $161 million verdict against Suzuki on a product liability case with punitive damages, and the wild story how it got there with practical how-tos. First, we got the two lawyers that were in the courtroom trying it, the third lawyer that’s doing all of the law in motion, Travis Davis, was traveling, couldn’t be here. But he can get a little behind the scenes with more of the nitty-gritty stuff. But first I want to introduce to you Mr. Gabe Houston from The Trial Lab that’s based in Florida and also California. He’s bi-coastal. Gabe, thanks for coming on.
Gabe Houston (00:41):
Thanks for having me, Bob. Yeah, I’m proud to say I am bi-coastal.
Bob Simon (00:45):
Bi-coastal. And Robbie, who is just on the left coast most of the time. Robbie Munoz, who is a … How long have you been licensed, Robbie?
Robbie Munoz (00:53):
This is month 12.
Bob Simon (00:56):
12 months.
Robbie Munoz (00:56):
12 months.
Bob Simon (00:57):
Robbie only gets-
Gabe Houston (00:59):
Wait, what?
Robbie Munoz (00:59):
Yeah, I tricked you.
Bob Simon (01:01):
Whoops. Robbie only gets nine figure verdicts. You had some six and sevens, and five figure verdicts.
Gabe Houston (01:07):
That’s rookie of the year stuff, I think. Right?
Bob Simon (01:08):
It is rookie of the century. Yeah. So, Robbie’s a lawyer in our office and you tried a few cases as a law clerk, actually. Interesting story, but we want to go back to-
Gabe Houston (01:18):
Wait, can I stop you on that?
Bob Simon (01:18):
Yeah, yeah.
Gabe Houston (01:20):
He actually helped me try a case before he was even a law student.
Bob Simon (01:23):
Really.
Gabe Houston (01:23):
I had a six-week med mal trial in Riverside and he sat a council table with me, went into chambers with me-
Robbie Munoz (01:28):
Helped with jury-
Gabe Houston (01:29):
… was solicited for information from the judge before he was even a law student.
Bob Simon (01:33):
Wow.
Robbie Munoz (01:33):
Before law school, yeah.
Gabe Houston (01:34):
Before law school.
Robbie Munoz (01:35):
I guess that was my very first experience at Council Table.
Gabe Houston (01:38):
That’s right.
Bob Simon (01:39):
Well, there you go.
Robbie Munoz (01:39):
You get credit for that.
Gabe Houston (01:41):
You’re welcome.
Bob Simon (01:42):
Yeah. So Gabe, man, this is a 2013 crash, right?
Gabe Houston (01:46):
Correct.
Bob Simon (01:47):
How does a 2013 crash end up into 10 years later getting tried?
Gabe Houston (01:52):
This is products liability, man. Corporations, they don’t roll over. It’s not a single event crash. One thing that I’ve talked to Robbie about a lot was the difference between this event or this case and a typical Simon Law Group case, for example, a lot of Simon Law Group cases that Robbie’s working on are single event cases. A collision at an intersection between two individuals. This is a corporation, and they have deep pockets, and they have other litigation across the country that I’m working on some of that and have been since 2015 or so. And they know, it’s even in their documents, we’re not going to pay out on any of these. If we ever do, it’ll go out on the web and we’ll get the reputation for this.
Bob Simon (02:34):
And you saw some of those actually in the documents in this case.
Gabe Houston (02:37):
Correct. Absolutely. Yeah, it was all part of the discovery that we uncovered and we translated the documents, and it was clear as that their motivation was we are going to fight and if we lose we will appeal, and if we lose we’ll appeal again, and we’ll try and get it back to a trial.
Bob Simon (02:53):
Truly there is no honor in defeat.
Gabe Houston (02:55):
Absolutely. I’ve said it a bunch of times.
Bob Simon (02:58):
Wow. I mean, I did a six-week product trial against Honda one time. It was kind of a similar thing, and the one thing that just blew me away from the single event, which most of the stuff that we do at our firm, is how much money they spend on experts and how much you’re up against. And I know in that trial they paid one expert alone $2 million, just the one. So I mean, how expensive are these types of trials that you’re doing? And you had it for 10 years.
Gabe Houston (03:25):
Yes. Well, nobody knows how expensive it is more than Simon Law Group. And on a handshake, Brad and I had a conversation with Conger, right?
Robbie Munoz (03:35):
Yeah, Conger and Jenny, I think.
Gabe Houston (03:39):
And I did a clopening, I call them a clopening. I presented Brad-
Bob Simon (03:40):
Klonopin?
Gabe Houston (03:41):
No, different.
Bob Simon (03:45):
I would never picture Gabe Houston be on Klonopin. You meet Gabe Houston, the guy’s definitely on any type of chill pill.
Gabe Houston (03:53):
Wow. The pokes start early. I did a clopening for Brad and Conger in the Seal Beach office where I presented the documents that I had, and what I believed I could show to establish some punitive damages. And from there it was literally a handshake of I need help and I need money.
Bob Simon (04:10):
When was that?
Gabe Houston (04:11):
That was when I left the previous firm I was in. So, that would’ve been in January 2018.
Bob Simon (04:16):
Wow. Okay. So, walk us through this. Again, how did this take 10 years?
Gabe Houston (04:22):
So, this crash occurred in 2013. The attorney who handled it at first was a family friend of the client, and it was really just a demand letter. There was a 1530 policy. So, he made a demand for the policy, they didn’t pay it. He immediately filed the complaint and then they paid it before he even had to serve it. So, then he got notice, or then sometime after that, about eight months, 10 months later, there was a notice of recall on this part. And then he referred it to me like, “Hey, do you want to take a look at this potential product case?” So, that would’ve been in early 2015. So, I filed it June 1st 2015, asked for discovery in that case as soon as I filed it, and I was stonewalled by defense on basic discovery things. And I thought-
Bob Simon (05:07):
So, who are the defendants? Educate, who are the defendants in this case?
Gabe Houston (05:10):
The defendants in this case that I filed against was Suzuki Motor of America Inc., and Suzuki Motor Corporation. So, anytime you have an acronym with an A in it means America, Suzuki Motor of America or American Suzuki Motor Corp. There was a bankruptcy issue that converted one to the other. It’s sort of complicated, but I think it was a bankruptcy intended to avoid liability for this case. And there was some evidence to establish that that was actually their motivation all along. But it was against Suzuki Motor of America Inc. and Suzuki Motor Corp, and Bert’s Mega Mall, which was the retailer that my client bought the motorcycle from, used, previously owned. Add Suzuki Motor Corp, Defense versus Suzuki Motor Corp assumed the defense of Bert’s Mega Mall as well.
Bob Simon (05:56):
Yeah, that’s what I was going to say. So, who ended up being the actual defendant? That’s the one that if they’re going to pay, is going to pay the judgment, it would just be Suzuki.
Gabe Houston (06:04):
Suzuki Motor Corp of Japan. Correct.
Bob Simon (06:06):
All right, so filed in 2015, getting stonewalled. You, Gabe Houston, you do complicated shit. Product liability, aviation-
Gabe Houston (06:17):
Med mal at the time.
Bob Simon (06:18):
Wow.
Gabe Houston (06:19):
Right.
Bob Simon (06:19):
Do you do bird law?
Gabe Houston (06:21):
If I can find coverage and I can get them served?
Bob Simon (06:27):
Carrier pigeon service.
Gabe Houston (06:28):
So, it’s funny you say that because I’ve never had a trial that was a four-day trial. My shortest trial is three weeks. I’ve never been in a trial for less than 15 trial days, and I envy the Simon Law Group and Robbie when he’s like, “I have a four-day auto case.” It’s like, “What? You get a jury before lunch?”
Robbie Munoz (06:46):
Jury before lunch, before Friday get the eight figure-
Gabe Houston (06:50):
Or admitted liability. I’ve never had anybody admit liability on a single trial I’ve ever had. Not once. Not once.
Bob Simon (06:57):
All right, so 2015 you filed, stonewalled. I mean, there’s been talk about the actual stuff you discovered in these documents and how it led to punitive damages. Can you walk us through how you did this?
Gabe Houston (07:08):
So, let me say this was not an individual effort. So very early on, once I was able to obtain the discovery documents early, they provided me 305,000 pages, documents of discovery, all in Japanese.
Robbie Munoz (07:27):
And just to interrupt, that was my first introduction in the case.
Gabe Houston (07:28):
So, Robbie was working with me at the firm at that time, and I said, “Robbie, help me with this.”
Bob Simon (07:31):
Robbie, a little baby law clerk.
Robbie Munoz (07:34):
Law clerk, before law school.
Bob Simon (07:35):
He was young and innocent then.
Gabe Houston (07:37):
And through these documents I was able to find other litigations throughout the United States, and I picked up the phone and I found this guy in Kentucky. I’m happy to give names, I’m not not giving names, it could end up being a lot of names. But one name I need to mention is a guy by the name of Paul Pyland. He’s in Atlanta. I found this group of litigation, this group of litigations, if you will, and I contacted them and I got the warmest reception. They said, “Man, we’ve been looking for somebody like you and people to join this.” So, we established this consortium nationwide, from Georgia, Mississippi, Kentucky, Florida, Texas, California, and there might’ve been some others north of that.
Bob Simon (08:15):
The Bay Area and back down?
Gabe Houston (08:16):
And we all worked together. We all shared theories, we shared documents that had been transcribed, or translated, I should say. And we just started working together, sharing experts. And that began the process of, okay, this is bigger than what I think, this is a big case. And it has wider ramifications. And that’s what motivates me as a lawyer, is I’m not, I don’t want to say not interested in the one-off case, but I’m interested in the more global applications, something that my efforts with my team can make a bigger difference to change.
Bob Simon (08:48):
So, fast-forward to now, after you had this landmark verdict, finally holding him accountable for punitive damages, do you think there’s future indications for Suzuki and others that were wronged by this product?
Gabe Houston (09:01):
So, that was one of the themes of our case, and I didn’t even get to answer your previous one. I’m sorry, my long-windedness, but the themes of our case is that they recalled this product finally after a nine-year investigation that was throughout their documents and throughout their investigation, they repeatedly said things like, “This is a matter that involves human lives. It’s a recall matter, prioritize it.” And they didn’t want to disclose the information to the federal government or to the people, because they would tarnish their brand, it would tarnish their sales. And then finally they couldn’t deny the defect anymore, and they finally recalled this product in 2013-
Bob Simon (09:39):
How long?
Gabe Houston (09:40):
Nine years. And in that period, Joey, my client, bought his motorcycle. Can I lay out a quick timeline?
Bob Simon (09:47):
Yeah, yeah. Let’s do it.
Gabe Houston (09:48):
All right. So, it starts in 2004, but I’m going to jump ahead to about 2009. So, 2004 to 2009, they’re starting to get wind of this defect that’s a product involving the front brake of a motorcycle that provides 80% of the braking power of a motorcycle. The number one safety issue or safety feature of a motorcycle is front brake. So, jump forward to 2009, they’re starting to get clued into what’s going on. But then let’s forward to 2011. Now they know they have a problem, and they start thinking that we have to change the design, and something else is going on inside. By 2012 they say, “We need to capture these motorcycles before somebody manipulates them, because we lose data in our investigation. How are we going to capture them?”
(10:31):
And they decide, “Well, we can’t just issue a bulletin because then we’ll have to notify NHTSA,” National Highway Traffic Safety Administration, “Then we’re screwed.” So, their documents even, and I’m not making any of this up, I can show you what their documents that they say this, “We can’t do this because then we’ll have to notify NHTSA,” in 2011, 2012. So, by 2012 they send a guy over by the name of Kudo, and Kudo comes and he goes to Bert’s Mega Mall, which is where Joey bought his bike. And they go, and there’s like 20 or 30 of these bikes on the line, and they start squeezing brakes. They don’t even tell the management of Bert’s that they’re coming.
Bob Simon (11:06):
What?
Gabe Houston (11:06):
So Kudo, and this other guy, Steve, from the American distributor-
Bob Simon (11:10):
Kudo and Steve.
Gabe Houston (11:11):
Kudo and [inaudible 00:11:12], they start squeezing breaks. And they find two out of 20, 10% of these breaks are bad.
Bob Simon (11:17):
And they can tell right away.
Gabe Houston (11:18):
Can tell right away. They squeeze right to the handlebars. And then they go right into the office and they tell the management of Bert’s Mega Mall. Oh wait, that’s not what they did.
Bob Simon (11:26):
I was like, “Wait, what?”
Robbie Munoz (11:27):
They did not tell me.
Bob Simon (11:28):
They went to Japan and they told the Japanese headquarters that’s what happened. They, in their own documents, say, “We did not tell Bert’s.”
Robbie Munoz (11:36):
Kept them in the dark, kept them in the dark.
Gabe Houston (11:36):
Kept them in the dark.
Bob Simon (11:38):
And they probably sold those two.
Gabe Houston (11:40):
Hold on. So then, yes, they probably sold them, but then Japan says, “Hey, can you get those bikes from Bert’s?” And Steve says, “That’s going to be hard to do because we told Bert’s there was no reason, there was nothing wrong,” even though for nine years they knew about it. So then they’re like, “How do we get these parts without alarming people? I know what we’ll do. Let’s do a springtime service sales event where we’ll bring people in, and we’ll get their information so we have updated information, we’ll squeeze their brakes, we’ll try and sell them stuff and make money, but in the meantime we’re going to find out what’s going on with their breaks.” And in their document it’s called a capturing activity.
Robbie Munoz (12:20):
Right, how they capture back these brakes.
Bob Simon (12:20):
Oh my God.
Gabe Houston (12:21):
And that was all in spring just before Joey buys his bike. And then Kudo writes a memo, and in this memo he says things like, “If we don’t do a recall when it comes to light, we’re going to be forced to give documents and they’re going to show concealment of our investigation, concealments in there.” And they give us a beautiful chart of risks and benefits of doing a recall and not doing a recall right. And it’s right there, man. It’s right there.
Robbie Munoz (12:45):
And it’s in front of the jury.
Gabe Houston (12:47):
And it’s in front of the jury. And there’s an article attached to it that says, “If we don’t do a recall, we’re going to get fined something like what happened to Toyota, which was $33 million,” because they didn’t do a recall on their stuff. So, they’re looking at the industry to decide what they should do, and profit.
Bob Simon (13:01):
Really doing a safety cost benefit analysis. Should we risk people dying over paying a penalty? Crazy, man.
Gabe Houston (13:05):
Profits over people, classic profits over people. So, all this comes in, and then Joey buys his bike in May 2013, rides it for 500 miles over 10 days, and then crashes, tragically injured. And then four months later they announced a recall, magically fixing the design and the manufacturing problem that they’d known about for nine years, and really specifically knew about for at least two to four years. And it was a very difficult issue to discover, in all realities. It was tough for them to figure out what it was. But they knew by January of 2013 that the defect was internal, and it needed to be fixed, and it was a recall matter, and they still waited another 10 months to even announce it-
Bob Simon (13:47):
What type of bike are we looking at here?
Gabe Houston (13:49):
The Suzuki GSXR model of motorcycles, the 600, the 750, and the 1,000 from model year 2004 to 2013. However, their recall that was announced in October 2013 only fixed the design, not the manufacturing defect. So, it’s still defective to this day, and that’s not an opinion. That is a fact that our metallurgist, Ramesh Carr, determined by evaluating a pre-recall and a post-recall-
Bob Simon (14:18):
Same thing.
Gabe Houston (14:20):
Same corrosion is in these things to this day.
Bob Simon (14:23):
So, is it the same models or is it later models?
Gabe Houston (14:26):
Same models. And I’ll tell you, earlier this year the Suzuki Hayabusa, which is a GSXR 1300, had a recall announced on a brake sudden lockup, which was a symptom throughout all of our documents that occurred as well. So I’m telling you, this is a continuing problem Suzuki has denied, from the stand they repeatedly said a defective front break is not an issue of public safety.
Bob Simon (14:51):
Oh, what? How is that even-
Robbie Munoz (14:54):
Jury didn’t like that. The jury did not like that.
Gabe Houston (14:56):
Didn’t like that.
Bob Simon (14:57):
I mean, when you heard that, Robbie, I mean, do you ride? Are you-
Robbie Munoz (15:00):
I don’t. No, I never have.
Bob Simon (15:01):
Gabe does.
Gabe Houston (15:02):
I did.
Robbie Munoz (15:02):
Yeah, you did.
Gabe Houston (15:05):
I did for a long time.
Bob Simon (15:06):
How many of your jurors actually rode motorcycles?
Gabe Houston (15:08):
One guy rode a motorcycle every day. He was riding a Honda CVR every day to trial.
Robbie Munoz (15:13):
I think in total we had four riders on our panel.
Gabe Houston (15:15):
And including a woman.
Robbie Munoz (15:16):
Correct.
Gabe Houston (15:17):
A woman was a rider.
Bob Simon (15:20):
I mean, you had to have seen visible reactions when they said that.
Gabe Houston (15:22):
There were certain reactions about riding that their defense, they hated their accident reconstruction. And one of the things, I took their little model and did an endo with it, and he’s like, “That can’t happen.” I go, “This can’t happen? If you stomp on the front brake, the bike flies forward-
Bob Simon (15:36):
You flip over.
Gabe Houston (15:36):
… he’s like, “No, that can’t happen.” And then there was like five jurors laughing.
Robbie Munoz (15:40):
Shaking their heads laughing. That was probably the greatest reaction out of the jurors in trial.
Bob Simon (15:45):
I always say, you don’t know how strong the jurors that are with you until you get to the defense case and they start asking questions, and laughing in defense-
Robbie Munoz (15:51):
You see their reactions-
Bob Simon (15:52):
… but they’re told, “Let’s wait until we hear the evidence. Wait until you get to our side.” And then they hear their side, they’re like, “That’s it?”
Robbie Munoz (15:58):
Yeah, the nodding comes, shaking their heads-
Gabe Houston (16:01):
Even in close. One of the things I did in the punitive damages close was throughout the course of the trial, Robbie worked up the damages on this. And one of the element of damages was the 10% chance that Joey loses his leg above his knee. And above the knee amputations, as you know, is much worse than a below knee, but 10% chance. And it was so di minimis to Suzuki, when they would argue it’s a 10% chance and all this stuff has to be wrong, has to go wrong for this to happen. So, in punitive damages. So, now the jury’s already given me permission to ask for punitive damages. So, I already know they’re on my side, on our side. So, in punitive damages, I say, “When I put up a billion dollars on this screen,” which is an astronomical number, I had to take a breath before I did it.
(16:42):
I was like, “Okay, I’m going to ask for a billion,” in my head, “This is a big number.” And I said, “I want to talk about a billion dollars, but before I get there let’s talk about their total sales number and take 10% of it.” And their total sales per the year was $33.7 billion in sales per year. So, I said, “10% of that is $3.37 billion.” Now, Mr. defense attorney argued that a 10% chance of losing his leg was so small of a chance as to not be really all that practical, or relevant, or even important-
Robbie Munoz (17:14):
Concerning, right.
Gabe Houston (17:16):
Or concerning. And I go, “I wonder if they’re going to have the same enthusiasm when it comes to losing 10% of their profits.”
Robbie Munoz (17:22):
It was beautiful.
Gabe Houston (17:23):
I saw a juror, they went like this, they looked over and was like, ‘Good point, dude. You can’t have it both ways.” And it was those kinds of things that you’re talking about. By the time the case got to the defense, it was over. And I told Robbie that.
Robbie Munoz (17:37):
It was too late, and you could see it.
Bob Simon (17:38):
And I think a lot of what people don’t understand is, it’s not like you have an opportunity to resolve these cases. Like pound sand.
Gabe Houston (17:47):
Me have an opportunity?
Bob Simon (17:48):
No, them.
Gabe Houston (17:50):
Oh, they could have, sure.
Bob Simon (17:51):
No, I mean they’re never going to give you a real offer.
Gabe Houston (17:53):
Correct. To this day they still haven’t, and they’ve showed no interest in trying to resolve this case.
Bob Simon (17:57):
I mean, they’re going to appeal, do everything they can, 100%.
Gabe Houston (17:58):
100%.
Robbie Munoz (17:58):
And that was, I think one of the interesting things about this trial was from day one there was already reference to the appeal.
Gabe Houston (18:08):
From the judge.
Robbie Munoz (18:08):
Day one, and from defense counsel.
Gabe Houston (18:10):
Correct.
Robbie Munoz (18:10):
Everything that was being done was like, well, for the eventual appeal, well, for the eventual appeal.
Bob Simon (18:15):
And that’s what lawyers don’t realize is you can go get verdicts in these cases, but as us on … You got to be perfect. You got to be perfect. So, talk to us about that imperfection, even though the first … So, this is the second verdict you had in this case.
Gabe Houston (18:29):
Correct.
Bob Simon (18:29):
Talk to us about what happened the first time, what changes that you guys made, and we’ll get to Robbie’s story in a second about the damages, but I’m talking about just generally a first trial and then what the appellate court said you had to change, and how that factored into decision making for the [inaudible 00:18:42]
Gabe Houston (18:42):
Yeah, but that’s a deep question. And in the first trial I tried a tactic, and I asked for your help and you guys gave me another attorney to try the case with. And in fairness, that attorney wasn’t really up to speed in all of the nuances of this case. So, I tried really the heavy lifting, and that attorney did most of the damages witnesses, it was in his wheelhouse. But that case, we didn’t have a metallurgist to talk about the deep science of what was happening inside this brake that was the corrosion, I elected to prove it through Suzuki’s own investigation. Ultimately, the appellate court said that wasn’t good enough. I didn’t link the causation between what they call the recall condition and my client’s collision. So, the appellate court overturned the entire verdict on causation, lack of causation, but they also did some other things that I was able to keep out the police report on the first one, they said that was wrong, and some other things came up. But ultimately it was the lack of causation.
Bob Simon (19:46):
But they gave you a roadmap to essentially cure what they’re likely going to hear later.
Gabe Houston (19:50):
That’s right, that’s right. They basically said, “If you can cure the causation, then you get a new trial. If you can’t, you’re out. You should have been thrown out on JNOV.” And we basically, through Travis Davis, Simon Group, basically were able to provide an offer of proof to the court, the court ended up granting us a new trial. So, we’re remanded for new trial at that point, which should [inaudible 00:20:14]
Bob Simon (20:14):
Yeah, if you need to have law in motion department with you side by side and hand by hand to have these, it’s so perfect because this is what you’re up against. You know you’re getting appeal on every little sentence you say, every piece of evidence that you put in. So, explain to us first what a metallurgist is, and what liability types of experts you had.
Gabe Houston (20:37):
Let me describe, it’ll be easier to do it that way. This case involved what are called dissimilar metals, two different types of metals making direct contact with each other in the presence of an electrolyte, which is short version for a battery. That’s all a battery is two, different metals and an electrolyte-
Bob Simon (20:54):
So, it’s not like death metal and hair metal, hairbands?
Gabe Houston (20:57):
Zinc and iron. Zinc and iron. And the electrolyte is brake fluid that had water in it, deteriorated brake fluid. Those things make direct contact in brake fluid? It’s a battery, it starts throwing off electrons. And the byproduct of that is a corrosion gel that has hard particles in it, but it also has hydrogen that’s created. So, that’s the manufacturing defect because there was a coating that allowed some of this to happen. The design defect was the fact that there was like, if you think of a chimney, a chimney doesn’t stick out of the side of your house, it sticks straight up because air rises to the top.
(21:33):
Well, in this case there was a vent that was out to the side and it allowed gas to gather above the level where the vent would allow gas to purge. So, when I said before they didn’t fix this problem, all they did in the recall was change the chimney from the side to the top. They didn’t fix the dissimilar metals. It’s still there to this day. The metallurgist came in to talk about that process called galvanic corrosion, and how that occurs, and what that byproduct-
Bob Simon (21:57):
And you have to essentially teach science to 12 strangers.
Gabe Houston (22:00):
It’s what I’ve always done, med mal is the same way. You got to teach medicine to them. Back injuries, you got to teach medicine to them with disc problems, everything.
Bob Simon (22:06):
And you got to know it. I mean, Gabe, you know your shit. You could probably do a whole fucking, write a book about this type of issue.
Gabe Houston (22:12):
[inaudible 00:22:13]
Robbie Munoz (22:13):
Yeah, this for sure. I think that that was something that we always had to be aware of throughout the trial was who’s with us? Who’s paying attention? Who’s really getting this? And breaking it down to its most simple form I think is the easiest way to do that.
Gabe Houston (22:28):
But analogies always. So yes, they’re complex, but I always come back to real world examples that people understand. And in medicine I did the same thing. I see other lawyers, and maybe this is a teaching moment, other lawyers get so complex with this stuff. Maybe it’s for their own ego to show how much they know and how smart they are with science, I’m the other way. I dumb it down to something so stupid.
Robbie Munoz (22:52):
The windshield wiper.
Gabe Houston (22:53):
The windshield wiper. So in this case, there was a seal disruption issue where the seal has to build pressure so that it can force fluid down and squeeze a brake. And to you, your head might be spinning right now. What I used was a pine needle underneath a windshield wiper, or a leaf underneath the windshield wiper. Your windshield wiper is wiping and you have a good seal, and it clears the water off your windshield, and then you get a pine needle under there and it doesn’t work anymore but it’s still going back and forth but you’re getting streaks now. And then it ejects the pine needle and starts working again. Everybody has seen that analogy in life. That’s what happened in this case. A seal disruption caused a sudden unexpected failure of this break, like a pine needle under a windshield. And people were like, “Boom. I get it. I get it.
Robbie Munoz (23:35):
It makes sense. And he was repeating that throughout the trial, and you could see eventually these jurors come around, like, “Okay, I got it.”
Bob Simon (23:43):
Yeah. So this case, for our listeners, this was tried in Orange County, California, which people believe is a more conservative venue and harder on damages, and these types of things.
Robbie Munoz (23:53):
And North Orange County specifically.
Bob Simon (23:56):
Actually more.
Robbie Munoz (23:56):
Yeah.
Bob Simon (23:57):
So first trial, I think it was around a million for the injuries to Joey, and then eight million-ish for-
Gabe Houston (24:04):
6.8.
Bob Simon (24:07):
… for punitive damages.
Gabe Houston (24:08):
Correct.
Bob Simon (24:09):
So now we’re looking at, it was 11,005,000 for the injuries to Joey.
Gabe Houston (24:14):
Right.
Robbie Munoz (24:14):
Correct.
Bob Simon (24:15):
It was 150 million for punitives. Correct.
Robbie Munoz (24:17):
Right.
Bob Simon (24:19):
How did that change?
Gabe Houston (24:21):
So well, one in damages, but the difference was how we approached it. So Robbie, I’ll give it to him in a second here. But the real key here, which gave us the indication of things were very different this time, was in the first trial it was 800,000 in compensatory, the damages to Joey, and 6.8 in punitive. And there was also a comparative fault where they attributed 48% fault to the driver of the SUV that cut Joey off in the first trial. In this trial, there was zero comparative. 100% on Suzuki, zero to the SUV. And what we adamantly argued throughout trial was, with the time and distance he had to stop, at the distance he was when he saw the bike or when he saw the car come out and his speed, he had time to stop without heroic efforts, without locking up a brake. So the driver, we argued, caused the exigent circumstance, the sudden emergency, but didn’t cause the collision. The failure of the brake caused the collision. I think we did a better job of establishing that.
Robbie Munoz (25:23):
For sure.
Bob Simon (25:24):
I mean, it’s almost like a very expensive focus group for the first trial to figure-
Robbie Munoz (25:28):
That, and we did an actual focus group.
Gabe Houston (25:31):
We did multiple focus groups, actually.
Robbie Munoz (25:36):
I think the last focus group we had, we walked away from that both thinking like, “Wow.” Number one, we were about to go down this path that we thought we’d figured out and we’ve got this nailed in. And then we have this focus group and we’re like, “Shit, we have to rethink our strategy here,” because the way that they’re hearing and listening to this client’s own story is not coming off the way we want it to, because we shared his injuries and what he went through, and visible injuries.
Gabe Houston (26:06):
So, get to your part though too. The damages part was different. Robbie handled the damages much different than round one, and that was a key element in getting that 11 versus 800.
Bob Simon (26:15):
So, what are his physical damages?
Robbie Munoz (26:18):
Sure. So, physically after this crash his kneecap essentially explodes, and it’s in a ton of different pieces. He has a femur fracture, and then his left ankle is fractured. It’s the right knee that goes through the most. So, five surgeries over about a year and a half. And when I say five surgeries, I don’t mean one for a surgery and then some minor revision, they have to reopen his knee five different times. And I really dove deeply into drawing that out. So much to the point where we had a juror sending a note to the clerk saying that she was getting nauseous from our animations.
Gabe Houston (27:04):
You’re glossing over the engine.
Robbie Munoz (27:05):
Yeah. So, I’m going to get-
Gabe Houston (27:07):
The kneecap is a problem. And the mafioso movies where they say, “I’ll break your kneecaps,” there’s a reason they say that because it’ll never heal right. When you have a broken patella, you can’t fix that very well and that person’s always going to walk with a limp, and then they could tell who the rats are. That’s the whole purpose of that in the movies.
Bob Simon (27:24):
I never knew that.
Gabe Houston (27:25):
Right.
Robbie Munoz (27:25):
I didn’t know that either until-
Gabe Houston (27:28):
We learned that from Dr. Hatch.
Robbie Munoz (27:28):
Dr. Hatch.
Gabe Houston (27:28):
His primary care, like his treater. And Joey has this obliterated kneecap, so he’s got a leg discrepancy. Go ahead.
Robbie Munoz (27:37):
Yeah. So first surgery, they’re trying to fix that kneecap. So they go in there, it’s a traumatic surgery, they fix it up, they suture it, and then about a handful of months later it starts to freeze up, it starts to lock up on him. They’re trying to take him back in there to now free up some movement, some scar tissue, patella refractures. So, at that point, and now he’s going through physical therapy after this and they stitch him up for the second time, he’s going through physical therapy and the physical therapist is trying to get some more movement out of that knee, snaps his patella tendon.
(28:11):
So, they got to take him back in for a third time. So, they reopen it a third time. Now they’re putting cadaver tissue in there. They’re trying to get this patella tendon rebuilt-
Bob Simon (28:20):
That’s got to be demoralizing for the psych too.
Robbie Munoz (28:21):
Oh, I mean, and we’re tracking this-
Gabe Houston (28:23):
He’s spiraling this point.
Robbie Munoz (28:24):
… all the way through. The mental effect this is having on him, the effect it’s having on his whole family unit at the same time, which we’re able to draw in through the damages witnesses. So, fourth surgery he finds, and I thought this was really compelling, his mom was smart enough to think about trying to find the best surgeons in southern California.
Gabe Houston (28:45):
Keeping in mind they were going to take his leg.
Robbie Munoz (28:47):
Correct.
Gabe Houston (28:47):
They were going to cut off his leg.
Robbie Munoz (28:48):
That was a major-
Gabe Houston (28:48):
The day after the collision, they were going to take his leg off. His mom saved it.
Bob Simon (28:53):
Well I mean, when you say, “Well, that didn’t happen. That’s damage that you can’t prove. They may have just taken his leg.” How do you get that in counselor? What relevance does that have?
Robbie Munoz (29:00):
Well, so for jury instructions, is it 3095, I think? Non-economic damages? One of those items that’s listed out, well not one, we went through about 20, but grief, anxiety-
Gabe Houston (29:17):
Mortification-
Robbie Munoz (29:17):
… mortification-
Gabe Houston (29:17):
… fear.
Robbie Munoz (29:18):
… fear, humiliation, all of these different emotional injuries that attach themselves to hearing, “Hey, you might lose your leg,” or, “We were already debating taking your leg off.” And then throughout this entire process, him wondering, “Am I better off just amputating this thing?” I mean, it got to the point where he’s going through so many surgeries, so much treatment, he’s literally arguing with his mom about, “Should I have just died in this crash? Or should I just have this leg amputated?”
Bob Simon (29:49):
And you got all that into evidence.
Robbie Munoz (29:50):
Yeah, through the damages witnesses.
Bob Simon (29:52):
So, how did you use the damages witnesses in this case, and did it differ from the first?
Gabe Houston (29:57):
Masterfully Robbie did it. I’m telling you, he did it. Small chunks.
Robbie Munoz (30:01):
Some of that we were talking about not overloading this jury. And Gabe gave a really good suggestion early on, which was keep it smaller for each of these damages witnesses, but make it impactful. So, I came up with this idea-
Gabe Houston (30:16):
And touch on different areas of damage [inaudible 00:30:18]
Robbie Munoz (30:18):
Right. Always touch upon different area, so we’re not being [inaudible 00:30:21]
Bob Simon (30:21):
For listeners, what damages witnesses are family, or friends, or coworkers that see and observe different types of things going on in the plaintiff’s life.
Robbie Munoz (30:28):
Right. They’re experiencing there with the plaintiff. You have to make sure that the testimony is not cumulative, so you’re trying to find different areas of harm.
Gabe Houston (30:37):
And nobody likes a groveling plaintiff. Nobody likes somebody who’s going to complain about their life.
Bob Simon (30:41):
So I mean, is that something that you had to deal with, that look in your focus groups, they wanted to hear it from other people rather than the plaintiff?
Robbie Munoz (30:48):
Right.
Gabe Houston (30:49):
But there’s a different issue to that too. Joey, he had hidden injuries and he looks fine, and he acts fine, and he’s worked his whole life to get back to fine so you don’t know that he has a problem.
Bob Simon (31:01):
I heard he was snowboarding and doing some other things-
Gabe Houston (31:03):
Skateboarding, snowboarding, all sorts of stuff. So, if you ask Joey and you look at Joey, he looks great. So, we had to get the damages out from other people who knew he wasn’t great.
Robbie Munoz (31:12):
And he’s this person that tries to do everything he can to move past this. He doesn’t want to live with this and make it seem like he’s injured, and he’s harmed, and he wants to be a strong individual who overcame this stuff. So, going back to that space was really difficult for him. And that was a challenge between him and I throughout the preparation of this trial. But going back really quick, so fourth surgery, now they find this specialist. His mom finds a specialist, he goes in there, redoes the entire thing, revises the entire knee. He’s then sutured up again, and one of his sutures starts to weep and they realize, okay, there’s an infection. So, they’ve got open this thing up a fifth time. So throughout trial, we’re talking about how this guy has constantly had these five different major surgeries on this knee, and these jurors are like, “This is insane. Five different times?”
(32:04):
So, going back to the damages witnesses, how do you draw that out? How do you make that resonate? So, I came up with this idea of asking each of the damages witnesses to give me a word to them that describe Joey, and then tell me why that word. And then the third piece, it was just one, two, and three, give me a word, why that word for Joey. And then what’s a memory that really defines his recovery experience for you that’s specific to you and your time with him? And we were just getting these incredible answers. Our very first damages witness was his sister, his little sister, who at the time was 12 years old. She’s 12 years old, and she grows up in an instant. I mean, she’s-
Gabe Houston (32:50):
Changing bedpans, taking him to the bathroom.
Robbie Munoz (32:52):
Right, putting them on the toilet, pulling them off the toilet-
Gabe Houston (32:55):
Mind you, these are witnesses that Robbie put on for 15 minutes. 15 minutes-
Bob Simon (32:58):
Most powerful things.
Gabe Houston (32:59):
Most powerful ones ever.
Robbie Munoz (33:01):
This first witness, we talked about this, we’re both trying not to cry during this first witness.
Bob Simon (33:07):
So, that’s hard because when I do those I can’t look at the person testifying because I start to cry.
Robbie Munoz (33:13):
Right. And that happened to me-
Gabe Houston (33:13):
It’s hard.
Robbie Munoz (33:15):
… in this trial with Joey.
Gabe Houston (33:17):
Well, we were lucky on this one though, because she presented through Zoom, and the jury was to our right and she was presenting on a screen to our left. So, we had to look at her and not have to look over here so we could hide our tears looking away from her. It was good.
Robbie Munoz (33:30):
But she did a great job. And she’s talking about how she’s 12 years old at this time. And then I asked her, “What about this experience sticks with you?” And she’s talking about how Joey is her hero, and how she was there for him at a time where he needed all this help but now he’s there for her in his life. And it was just like, oh my gosh. And then his mom went and she had a completely different experience, and she’s telling us about literally put him in a wheelchair and take him to these lectures to go meet these doctors at UCI and USC, to see who can give them a chance at [inaudible 00:34:08]
Bob Simon (34:08):
But fast-forward, this is 2013, 2014, 2015, you’re eight years later at this trial. How do you get that amount of future, you had a lot of future damages in this case for them, how do you get someone that’s out there snowboarding, doing these things to get that type of compensatory?
Robbie Munoz (34:22):
Yeah. So, we leaned all into that, we leaned all into that, and we made that about this underdog story.
Gabe Houston (34:29):
Yeah, and I read something on the way here today that was a, what did it say? A comeback is stronger than a setback. And that was a theme. I’m not saying that exact thing, but we talked about the David versus Goliath, the comeback. And there was a lot of talk about snowboarding in this case, and in closing, and I told Robbie at some point, like, “Man, the snowboarding is too much. The jurors don’t care about a kid that snowboards.” And it’s sort of a theme too, where we asked, “What does it mean? What’s the meaning behind this that is the true heartfelt part?” And what Robbie and I had talked about was it’s not about the snowboard, it’s about what it means to be able to snowboard from a guy who was about to lose his leg, from a guy who was so dark he wanted to lose his life, from a guy who lost his community and all his family and friends, and now he’s part of this community again, to be back, to have arrived again.
Bob Simon (35:22):
How much time did you guys spend with the plaintiff in this case?
Gabe Houston (35:26):
Keep this in mind. This is different. Robbie had been in this case for how long?
Robbie Munoz (35:31):
Three or four months.
Gabe Houston (35:32):
Three or four months. And in that time, he developed bonds with them. I’ve been with Joey for 10 years. So, it’s why I wanted Robbie to handle the damages because I felt I was a little too close.
Bob Simon (35:42):
Too close.
Robbie Munoz (35:43):
Yeah, I thought that was crazy. When you first told me that I was like, “Listen, I’ll do whatever you want me to do and help.” But I thought that was a little bit crazy.
Bob Simon (35:50):
And that’s why we’re talking to Gabe and it was like, you’re picking the jury open and closing. Who’s the complement? What’s the complement that you need that might’ve been missing the first time when you went through this expensive focus group? And it was just need someone that’s like a human being. And that’s the communication, because that’s how you draw it out. You need someone that actually has empathetic care for the plaintiffs to get the story out and be able to tell it.
Robbie Munoz (36:16):
Sure. And I think that early on, Gabe introduced me to Joey, it was a Sunday evening. I remember it was raining and we were in Huntington Beach. We spent, I don’t know, two, three hours with Joey. And it was just this experience where I had an injury when I was young, not anywhere near as serious as Joey’s, but I wasn’t even going to share this. And Gabe actually brought it forward in our conversation. Gabe’s like, “Joey, he’s not going to bring this up. He’s not going to tell you this unless I do. So, let me share a little bit about Robbie’s history,” and you could get this-
Gabe Houston (36:50):
You’re welcome, HIPAA.
Robbie Munoz (36:54):
As soon as he shared that, there was a shift in Joey and this connection between he and I. He was kind of looking at me like, “Okay, you get where I’m coming from,” to some extent.
Gabe Houston (37:04):
And you see that, that’s 10 years of knowing your client. That’s 10 years of knowing the case-
Bob Simon (37:08):
And you as a trial lawyer. Lawyers sometimes feel like they have to do and control everything. I think a lot of it is finding complements that-
Robbie Munoz (37:17):
And kudos to this guy for giving me that opportunity to build that bond with him. And from there, Joey and I, I took the advice that I’ve learned from Simon Law Group. I’d go visit him, I’d get lunch with him, I wouldn’t even talk about trial. Just like, “Hey, let’s go get lunch. Let’s just get to know each other more,” spending as much time as I could. And then when you’re digging in, because you’re asking, “Okay, these invisible injuries, how do you get that story out?” So, now I’m going to his mom, and his little sister, and his girlfriend, and his brother, and all the while it’s a fine balance. So, for younger attorneys out there, you want to be cognizant of not over-preparing a witness, and you want it to be natural, and you want to come across as them just telling their story-
Bob Simon (38:03):
Usually I don’t script stuff with the damage witness. Just get blocks and ask them questions.
Gabe Houston (38:06):
That’s one of the hardest things for Robbie. I’m telling you. Robbie is a tenure attorney. He did an amazing job, but there was so much throughout the trial I’m like, “Get off script, be human.”
Robbie Munoz (38:16):
Yeah, just be human.
Gabe Houston (38:16):
Be human, have a conversation. Listen to what they’re telling you because they’re giving you gems. And if you’re on script, you’re not going to pick up.
Bob Simon (38:23):
And a lot of times when you hear that gem, repeat it so the juror hears it again.
Robbie Munoz (38:26):
100%.
Bob Simon (38:26):
Jurors like one, two, threes. I like when you ask one this thing, this thing. I do the top, how would you describe the person before three words and three words after? Just to do-
Robbie Munoz (38:36):
Right. And for this, I was just trying to keep it shorter. So instead of three, I’m like, “Just give me one. Give me one good word.”
Bob Simon (38:40):
And they all write that down. So it’s like, “Oh, we’re going to do numbers now? I’ll write them out, one, two-
Robbie Munoz (38:45):
Right. And I remember preparing these damages witnesses and talking to them. And it got to the point where I was just having conversations. And it was so funny because after the trial, Joey’s girlfriend, she was talking to me and she was laughing, and she’s like, “I thought I had an outline from you,” because she’s like, “I knew it so well,” but it’s just because we’d gone through the conversation so many times that she felt fully prepared. And I was like, “No, there wasn’t.” She didn’t have an outline. We had talked about it so many times.
Bob Simon (39:14):
Speaking of girlfriends, Robbie doesn’t have one. He’s single.
Robbie Munoz (39:17):
Oh God, here comes the play-
Bob Simon (39:18):
I’ll drop his cell.
Gabe Houston (39:19):
Also bi, not coastal.
Robbie Munoz (39:23):
There’s going to be a cell phone number here-
Gabe Houston (39:24):
Let me tag onto a point about this thing and not being on script. The irony of this is I did close, Robbie did rebuttal on the liability phase, and I told Robbie, he was preparing for rebuttal for a long time. He called me late. He’s like, “I want to talk about this rebuttal.” And I go, “Robbie, it’s rebuttal. Get off the script and just rebut and listen to the key points.” And it was the most profound moment of trial, his rebuttal, because he talked about a part where the defense, there’s a difference between hearing and listening.
Bob Simon (39:56):
I saw that. It reminded me of the White Men Can’t Jump. Hear Jimi? You hear Jimi?
Robbie Munoz (40:01):
That clip. That clip, yeah.
Gabe Houston (40:02):
But it was a rebuttal. It was a true rebuttal where he was pointing at the defense of like, “Listen, they’re not listening.” They think they know him. They heard, but the most profound moment was how they treated Joey’s mom. And Robbie pulled that out, and it was amazing. It was that moment of now you are listening. You know what I mean?
Robbie Munoz (40:21):
It was a full circle moment. Yeah, I appreciate that.
Bob Simon (40:24):
So, you closed the rebuttal, Gabe, you picked the jury opened. I just want to touch very briefly on these little things. Picking juries, picking the jury, did you have a jury consultant?
Gabe Houston (40:34):
Yes, absolutely. First time I’ve ever used one and will likely never not use one again.
Bob Simon (40:38):
Yeah, I’m big proponent as well. So, who’d you use for this draw?
Gabe Houston (40:42):
Sonia Chopra. And kudos to Robbie, he found her. We were trying to use David-
Robbie Munoz (40:48):
Harry.
Gabe Houston (40:48):
Harry Plotkin, and he was busy-
Bob Simon (40:49):
I use Harry for almost every trial too, but he’s busy.
Gabe Houston (40:51):
… and he pointed us over to his protege, Jessica Brilo, who picked up the case very fast, but we couldn’t use her. We had already talked to Sonia, and then Sonia became available. So, then Robbie-
Robbie Munoz (41:03):
We went with Sonia, and it was a great decision. It took a little bit of time, I feel like, to build that comfort level. And I saw that shift, as soon as that comfort level was built, the next day, because it was two days of jury selection. The second day of jury selection, I was like, “We’re good. This is going to be easy-
Bob Simon (41:19):
Because I remember you guys were talking, you felt very comfortable with the jury that-
Robbie Munoz (41:23):
Very.
Gabe Houston (41:23):
And you asked before, a difference between jury trial one and trial two, no jury consultant trial one, jury consult trial two.
Bob Simon (41:32):
I mean, you know you’re going up against a foreign corporation that Orange County may not feel too keen on. You know the defense is going there, you know they’re going to ring up corporation, Japanese corporation-
Gabe Houston (41:44):
Motion to eliminate, by the way.
Bob Simon (41:45):
Really? Why? But they-
Gabe Houston (41:47):
Couldn’t talk about it. They said, “We don’t want to be able to bring in out-of-state attorneys,” because most of it, I’m in Florida primarily now, but obviously you have my offices here too. But they are national counsel out of Indianapolis and Nashville. So, they can’t talk about attorneys being out here. But also, we don’t want you to come in and talk about this being a Japanese corporation and make it nationalistic.
Bob Simon (42:08):
I mean, it seems like a good way for them to get people off for cause if they wanted to. Whatever. I mean, that sounds stupid to me. But I mean, did you start to frame some of these issues you knew you were going to be talking about with the emotional injuries? I just want to know what difference things you did this jury selection as opposed to the first one? Any topics that you guys did differently or did things-
Robbie Munoz (42:30):
Oh, punitive damages.
Gabe Houston (42:31):
Oh, sure. That was the key.
Robbie Munoz (42:32):
That was big.
Gabe Houston (42:33):
So the first trial, we were penalized by the jury for not prepping them for phase two. So, when they deliberated for three days in the first trial, and they fought in the jury room and gave us what they thought was a just verdict, and then I said, “Okay, you got to come back Monday.” And they’re like, “What the fuck? What do you mean? I thought we’re done.” So they’re like, “You just want more money. You’re greedy.” So, then Robbie and I talked about it. We’re like, “Okay, listen. From the very first minute in voir dire, we’re going to say, ‘If you give me permission, we’re going to ask for two phases here, but you have to give me permission, but I’m prepping you for this.'”
(43:05):
So, we carried that through the whole thing so that even in close, when I closed I said, “I hope this isn’t my last time I get to talk to you. I’m going to ask you for permission, and here’s where I’m asking for permission.” And then when I got to argue it, I said, “Remember I asked you? This is what I was talking about.”
Bob Simon (43:19):
Because going to skip ahead of the limited time that we have, and by the way, since it’s a public proceeding, Gabe has all the transcripts, you could reach out to him. It’s public knowledge. He’s very open with sharing these things. He has the conglomerate of folks that have been working on these cases for a decade.
Gabe Houston (43:34):
They’re all public now, too. They’re admitted without protection of protective order, so I can give you actual documents if needed to.
Bob Simon (43:41):
Yeah. So, let’s just skip ahead. I want talk about the moment that most trial lawyers never have in their career. I’ve tried probably 50 cases, I’ve never gotten to this phase, the punitive damages phase. What do you have to prove to get there, how did you get there, and what was your argument?
Gabe Houston (43:57):
I’ve been very fortunate. This is my third time arguing punitive damages twice, in Suzuki, one time on a different case. And they were my last three trials, by the way, in a row.
Bob Simon (44:05):
Punisher.
Gabe Houston (44:06):
You have to establish malice, oppression, and or fraud.
Bob Simon (44:11):
By who?
Gabe Houston (44:13):
By a corporate executive, somebody somebody speaking on behalf of the corporation itself, not a low level employee. So, an actual officer or director of the corporation has to engage in conduct that amounts to malice, oppression or fraud. So, really the tie in is that. I mean, you can’t just have the salesperson on a lot do something bad to somebody buying a motorcycle, it has to come from Suzuki corporate. And these documents were easy to establish that, and to the point where we had a document signed by Chairman Suzuki himself that had said, “This is-
Bob Simon (44:44):
Wow, the owner of the company.
Gabe Houston (44:44):
The owner of the company, and their defense to that was he’s not authorized to issue a recall. The chairman can’t approve a recall, it has to come from a subcommittee. And the jury was just like, “Come on, come on. Really?”
Robbie Munoz (45:00):
Pretty unbelievable.
Gabe Houston (45:01):
It was unbelievable. But they did that kind of stuff throughout. It made it easy to hate them for the jury.
Bob Simon (45:05):
So, you have this heightened standard-
Gabe Houston (45:07):
And it’s got to be done. So, I stole this from actually, and I steal stuff from everybody, you included. I’ve stole stuff from you left and right. The man in black I stole from you.
Bob Simon (45:17):
Yeah. And I stole from Nick Rowley [inaudible 00:45:19]
Gabe Houston (45:19):
So, we steal from each other. So, a presentation I went to, he talked about using the terms clear and convincing evidence. So, you have to establish with clear and convincing evidence a higher burden, malice, suppression or fraud. So, from the very opening that I did, I said, “I’m going to show you with clear and convincing evidence all of the things I’m going to show you about liability.” I just use the words clear and convincing, because people know what the word clear means, people know what the word convincing means. They have no idea what preponderance means.
(45:48):
So when I use a clear and convincing, you could see the judge look at me like, “Dude, what are you doing?” And you could see defense go, “What are you doing?” And I’m like, “I know what I’m doing, because I’m going to show you with clear evidence and I’m going to show you with convincing evidence that what we’re going to show you is right.” So, when I get to clear and convincing, they’re like, “I’ve already heard that-
Bob Simon (46:04):
Easy standard. Yeah.
Gabe Houston (46:05):
That’s the standard.
Bob Simon (46:06):
So now, last, I just want to hear how you got $150 million in punitives.
Gabe Houston (46:14):
I asked for it.
Bob Simon (46:15):
That is actually the short answer.
Gabe Houston (46:17):
I asked for it.
Bob Simon (46:19):
Famous mentor mindset, Gary Dordick said, “Would you rather have a jury say you asked for too much or you asked for too little?”
Gabe Houston (46:24):
Right.
Bob Simon (46:25):
Got to ask for it.
Gabe Houston (46:26):
Well, I believe in options, and anchoring is a big deal. Anchoring at the right level. Robbie fought with me the night before that I was asking for too little on the compensatory, and he was like, “11’s not enough. I want you to ask for 16 or 20.”
Robbie Munoz (46:43):
I said 15.
Gabe Houston (46:45):
“16 or 20,” he said. He didn’t say 15-
Robbie Munoz (46:46):
I’m pretty sure it was-
Gabe Houston (46:49):
… he said, “16, or 20.” And I said-
Bob Simon (46:49):
Yeah, I’ll give you 100% of what you asked for.
Gabe Houston (46:50):
More. They give me 5,000 more. And I said, “Robbie, listen. I don’t care if they give 16, or 20, or 11. I’m asking for punitive damages where it’s going to be hundreds of millions, maybe a billion. So, if I got 16 or 11, doesn’t matter to me. I want to get to phase two.” Robbie I was like, “I know, but I couldn’t sleep tonight if I didn’t bring it up.” I said, “I know what I’m doing.” He goes, “I know you know what you’re doing.” And then afterwards you said I did the right thing.
Robbie Munoz (47:16):
Yeah, it was good. It was good.
Gabe Houston (47:17):
So, then I anchored them to their total sales figure. They sell $33.7 billion in sales a year, comes to $93 million a day. And I said, “Listen, one day of sales, is that going to punish and or deter their conduct?” I said, “I don’t know.” I said, “I don’t know.” I go, “I can tell you anything less surely won’t. If you give half of that, they make it up by lunch. If you give half of half, they find that in the change in their couch in the lobby.” So anything left, I go, “We got to start out in a day. We got to start out in a day.” So, that’s where we start. And I gave them a good reason for it. And then I took 1% of that number, 33.7 billion. What’s 1% of that number? 337 million. And I said, “What is 1%?” And the defense objected to everything. I couldn’t use my PowerPoint, I couldn’t use anything-
Bob Simon (48:15):
I think just for the listeners, it’s kind of shady stuff for another lawyer to do this. But you tell people, “This is what we’re going to do and we’re going to do it this way for closing.” And then the defense lawyer pulled the rug out from under you and didn’t allow you to use the PowerPoint that you created.
Gabe Houston (48:30):
And they’re demonstrative. So, I told Robbie from the beginning it doesn’t matter what they do, we’ve already won this case. It doesn’t matter what they do, we will be ready for it. We’ll be ready to do something about it. So, with the 1% issue, I had looked around our courtroom and there were 93 blue stadium chairs in that courtroom, plus the wooden lawyer chairs. That means about 100 chairs. So, I planted a chair back by the end where, a wooden chair, I planted one back there. And I said, “I’m asking for 1%. 1%. What does that look like?” And I had a demonstrative that was a 99% blue, 1% red, and it was like, “They get to keep all the blue.” And I looked around and I walked to the back of the courtroom, and I took a chair out and I put it in the hallway.
(49:15):
And literally it was dead silence. And I walked to the back, I’m like, “Let me do this.” And I took a chair and put it out. I go, “There’s 100 chairs in this courtroom and I’m going to remove one.” And I did it. “I removed 1% of the chairs from this courtroom. Does it feel any different to anybody in here?” There was three jurors that were like, “Nope.” They nodded, “Nope,” and wrote it down.
Bob Simon (49:37):
Wow, man.
Robbie Munoz (49:37):
Yeah, it was brilliant.
Gabe Houston (49:39):
So 1%, is that going to affect their overall? Is that going to hurt them all that much? It’s 337 million. So, then I put a billion up and that’s a whole different story. I can talk about that. But then I go, “A billion’s too much. A billion’s going to destroy and not deter. That’s going to be too much.” And I knew I’d have an appellate problem if they gave that. So, I circled three. I go, “93 is a little too low. 337 is the right number, folks.” And I circled it. Circled it.
Bob Simon (50:02):
Options.
Gabe Houston (50:02):
I was like, “This is the right number.”
Bob Simon (50:03):
490 to 330.
Gabe Houston (50:04):
That’s right. You got this-
Bob Simon (50:06):
For a whole day, and I’m sure you’re going to get a lot of follow up so look for him in the news doing those. If you have any other cases, reach out to Gabe. He’ll be more than happy to help you. Guys, thanks for coming on this edition-
Robbie Munoz (50:15):
Thank you.
Gabe Houston (50:15):
Thank you.
Bob Simon (50:16):
… of The Justice Team podcast. Just monumental verdict, but more important than anything is the societal good for consumers, protecting consumers. Now the more awareness they have about the defective brakes, that a lot of people are still out there with right now.
Robbie Munoz (50:30):
Yeah, protecting the community.
Gabe Houston (50:32):
And let me say, thank you for having me on, and really, I know this isn’t a Oscar speech or anything, but thank you to the Simon Group. Without you guys, this case doesn’t get done the first time, doesn’t get done the second time, because we never make it through the appeal and get remanded back for new trial, and doesn’t get done the second time at the level we got it done. So, kudos to the Simon Group.
Bob Simon (50:53):
And as we said, the fight is not over because it will continue on this exact case.
Robbie Munoz (50:56):
It will.
Bob Simon (50:57):
Thanks guys, for coming in. Appreciate it.
Robbie Munoz (50:58):
Thank you.
Gabe Houston (50:59):
Thanks, bud.
Bob Simon (50:59):
Thank you.
