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Paul Edelstein:
All right, here we are today in Brooklyn with Dan, who’s in Manhattan. Dan Thomas, we should say. It’s strange that we have you here on the guest of the show because Dan, you know the title of my podcast, which is watched very carefully by my mom? And the title of it is Pulling Back the Legal Curtain, which is kind of funny because you, we refer to, as our blanket, blanketing us, always having us covered. And the podcast is attempting to uncover things. So I guess you’re probably a great guy to have on to uncover things since you always have me covered. Does that sound good to you?
Daniel Thomas:
Love it. Yeah, that sounds just about perfect actually.
Paul Edelstein:
All right, and since there could actually be someone listening that’s not an immediate family member of mine, they may not know who you are. So I’m going to give you a little brief intro. You’ve been a trial lawyer probably longer than me, so I would say north of 30 years. That sound right?
Daniel Thomas:
Correct.
Paul Edelstein:
Yeah. There you go. A fantastic trial lawyer. You and I have tried many, many cases together. In fact, hence your nickname as my blankie. I don’t like to go anywhere without you. Certainly not a trial. And your father was a very prominent Supreme Court Judge in Queens County for more than 20 years, from my recollection. Is that right?
Daniel Thomas:
He’s 28 years on the bench.
Paul Edelstein:
28 years. Sheesh. So basically your whole life as a lawyer pretty much.
Daniel Thomas:
Yeah.
Paul Edelstein:
So you basically know a lot of stuff and that’s what makes me look good as a trial lawyer. So that’s fantastic. But I know there’s one thing you really know better than anybody I know, and it’s something that we all as trial lawyers want to think we know, right? And that’s judgments. So it’s Judgment Day here on the Pulling Back the Legal Curtain Podcast-
Daniel Thomas:
Okay.
Paul Edelstein:
… for you and I. And so on Judgment Day, I figured I had to bring in my blankie, had to bring in the most knowledgeable guy I know about judgments to talk about judgments. So that’s what we’re going to do today. Dan, it’s the Senate confirmation hearings going on today, as you know Dan every day. So Dan, Mr. Thomas, do you feel comfortable, prepared to talk about judgments today on this podcast that can be viewed by literally three or four people? At the very least. Do you feel comfortable doing that?
Daniel Thomas:
Three or four, or three or 4 million? Actually, I’m ready to go.
Paul Edelstein:
That’s it. See, you’re always the same, whether it’s three or four of my relatives or 3 million people watching. So that’s perfect. So here’s where I want to start because it’s weird. We’re going to start at the end. Anybody who’s watched any of these things, I guess, or knows anything about us, knows that you and I took a verdict against Harley Davidson Motorcycle Company, a big verdict for $287 million this summer in a really tragic case, a product liability case. And we’ve talked about it, or I have on all their podcasts, whatever, a million different things. And there’s been a ton of media on it and a million questions I get asked about it and I know you must as well, right? I’m sure everybody asks about this case, right?
Daniel Thomas:
Yes.
Paul Edelstein:
So all anybody really seems to here or think about, they hear that number, which obviously, look, it’s a big number and it made sense when we got it and we knew that. But recently, within the last month or so, the trial judge in this case heard the motions post-trial to set aside the cases. This is a very common thing. It happens in every single case. Every winner, every loser says, “It’s wrong. Judge overturn it,” Before you even get to appeal. And that’s what happened in this case. And our judge, a judge named Craig Doran, upstate New York and the fourth department, amazing judge. What’d you think of this judge, by the way? Put you right on the spot.
Daniel Thomas:
If not the best judge I’ve ever appeared in front of, definitely top three, hands down. He was spectacular. And I say that because of the way he was quick with his decisions. He was purposeful, he was thoughtful, he was extremely fair. He really bent over backwards to give equal time, as much time, let everybody be heard, made sure the record was clean for everybody. And at no time did you ever feel like, “Gee, I’m getting hometowned or I’m getting screwed here.”
The guy played it up the middle every time, no ifs, ands, or buts. So on top of that he has a great sense of humor. So that added to the fact that we were with him for a month and really it was a pleasure. But I have nothing but amazing things to say about his judicial prowess, his legal acumen, and his understanding of what it means to be in the heat of battle in trial in this business.
Paul Edelstein:
That’s great that you say that because we know you know that there’s about a 0% chance he would see this. So we know that that was an accurate assessment since now way he’s going to watch this, except my three subscribers, none of which is this judge. Nevertheless, this was a great judge. So here’s what’s very interesting, but this judge, then on the motions to set aside the case, actually took the $287 million and… Actually this is a good… Pull up the headlines. Pull up the headlines that we just saw. It was like this week, the Bills lost another championship game, horrendous for everybody in western New York. And the headline of the newspaper the next day was that Bills lost, but also judge reduces award in fatal motor crash.
And I mean, it’s amazing, right next to what really was big news that day obviously in this area, western New York Bills championship game loss, was our case. But the headline grabber, the thing that really grabs you was that this got reduced. So let’s talk about that for a second, right? Because the first thing that happened is this judge, this amazing judge, this judge that you just said was the greatest thing ever that you’ve ever been in front of, right? That’s what you just said about him.
Daniel Thomas:
Yeah.
Paul Edelstein:
This guy knocked the verdict down from $287 million, and I think the article cited it saying he reduced it by $210 million or something like that.
Daniel Thomas:
$9 million. Yeah.
Paul Edelstein:
See, that’s why I need you, because of the math. So that was the headline, right? This amazing judge did what? Right? So I know, and this is why I wanted to get on the call with you, right? Because I’m like, as soon as that happened, and the article in the Buffalo paper was actually a little late, the reduction actually had happened I think maybe a month before, a few weeks before. But there were other headlines, and you have a lot of them I know, and everyone, so a law journal reported on it, and the legal papers definitely reported on it. I think local papers up there reported on it. And it was on the internet and whatever.
So I got a million calls including, obviously, from the clients, rights? And every one of them started the same way. It was a, “What the…” I can say it’s my podcast, but we’ll give it to the WTF. I got texts. I got emails.
Daniel Thomas:
Right.
Paul Edelstein:
I got phone calls that were all, “What the F?” All negative. So the first thought of everybody was this amazing judge, that you just really recited, and I agree, I was there in front of the guy for a month and I’ve been doing this for 30 years too. Did what? Outrage, right? Is that the reception you got?
Daniel Thomas:
Yes. From those who don’t know, it was outrage. It was, “How can he do that? The jury has spoken. The system is broken. It’s rigged. It’s fixed. Who’s paying these guys under the table?” I mean everything under the sun about how can that possibly happen.
Paul Edelstein:
Right? That’s what I heard too. Did the judge get a Harley David? Who does he work for?
Daniel Thomas:
Right.
Paul Edelstein:
Then there was also the story because the judge announced his retirement. So people were like, I got a couple calls, “Wait, he retired? Where’s he going?” Yeah, it was amazing. Right?
Daniel Thomas:
With all the money he got from Harley, he doesn’t have to work anymore.
Paul Edelstein:
Right. That’s what people were asking. And I was like, “Whoa, whoa, whoa, whoa, whoa.” So I had to painstakingly explain, and that’s what I want to talk to you about today.
Daniel Thomas:
Okay.
Paul Edelstein:
I said, “No, no, no, no. Actually what the judge did in reducing this award by $209 million was actually not the problem.” He didn’t really do anything in our opinion, I know you and I have talked about this, really that was so wrong. We understood and we thought it was going to go right up kind of in that area, but obviously we would’ve liked a little higher, okay? Harley would’ve liked lower. But nevertheless, we certainly knew it was coming into some range because we understood that the problem wasn’t the judge. But if there was a problem, and I think there is, and we can talk about that, it was the law.
Daniel Thomas:
Yeah.
Paul Edelstein:
And that what this judge did was simply apply the laws that he was given to the jury’s verdict. And so now, I’ve had to explain this to so many people, including my mom, who maybe she’ll watch this podcast and won’t ask me again, “How did that happen?” Obviously, our clients, who we explained this to before this even happened, right? We said this is what we think will happen and why. But I even had to explain this and maybe you have, to lawyers. Have you had to do?
Daniel Thomas:
Sure. Sure.
Paul Edelstein:
And now that one surprised me, right? Then I had to actually explain to other lawyers who were calling me about the verdict and then saw the reduction and were like, “What the F? What happened? What is this?” And I’m like, “No, no, no, let me explain it to you.” So I asked the question to you, a $209 million chopping, did you have anger towards the judge? Anger towards the law? No anger at all. How did you feel?
Daniel Thomas:
Well, I definitely had no anger towards the judge. I have less so no anger towards the law, but not complete lack of anger towards the law because I do believe that the concept, the principle of law that’s in play here is reasonable. Unfortunately, there’s a whole area which is in a blind spot, which this case fell into, and that’s something called punitive damages.
Paul Edelstein:
That’s interesting. But wait, let’s put that one aside because you’ve got a lot of things going on here, and you and I know them. So let’s try to explain them in a competent way. So if somebody’s actually watching this-
Daniel Thomas:
Sure.
Paul Edelstein:
… they could be like, “Wow, I get it.” So the first thing that struck me… So let’s only talk about the money, because that’s all that’s really important. So the reduction of $209 million. Okay? Because he could have thrown out the case, the jury’s finding on liability, and we know he obviously didn’t do that, and that was a well-reasoned decision based on the law. That was fantastic. Okay. But the money one is the one where people were like, “What?” And I had to explain to people, “Well, let me explain to you how this works.”
And it works in essentially two general ways, and then I’m going to let you explain it in a little bit more detail. And the two general ways are that this jury awarded two types of damages, compensatory damages, and you just explained punitives, which has got some more complexity to it, and it’s second. That’s why I want to table it for now. So the compensatory damages were to compensate our clients. So you didn’t tell me to slow down. You usually tell me to slow down.
Daniel Thomas:
No, you’re good.
Paul Edelstein:
My podcast, right? I could go as fast as I want. So the compensatory damages were to compensate our clients or their losses, whatever happened to them. So our clients had different types of losses. So let’s talk about Harold’s first.
Daniel Thomas:
Okay.
Paul Edelstein:
Harold had compensatory damages of the following. He got really badly hurt. So he had pain and suffering, broken bones, and surgeries, and things like that. He had medical bills and there were allegations that he would have medical treatment in the future. He had these things and then he had emotional loss and all of these things that go along with his physical loss. And so he was able to go in front of a jury and say, “I need to be compensated for that.” And they compensated him for that. Your client on the other hand, had different types of compensatory losses. Right?
Daniel Thomas:
[inaudible 00:12:27]
Paul Edelstein:
So why don’t you explain what those were?
Daniel Thomas:
Sure. And again, this case involved two accidents with the same exact motorcycle. One before-
Paul Edelstein:
Let’s not even complicate that, because that does complicate it. Let’s just talk about the second one.
Daniel Thomas:
Well, let me just give lip service to the first one because essentially the compensatory damages, if you get hurt like my client did, and required a surgery on her hand, she fractured her foot and hurt her hand, needed a surgery. Those are somewhat tangible injuries. Those are things you can say, “Okay, well were you a concert pianist or were you a public speaker?” Your hands are going to matter. Were you a marathon runner? In which case, foot injury might have a greater loss to you if in fact that’s where your injury was.
So those are factors we have to consider when you ask yourself what’s reasonable, what’s fair, things like that. So here’s basically a retired woman who didn’t make a living with her hand or a foot, but had gnawing issues, had continuous pain when the weather was a certain type and things of that nature, but nothing enough to stop her from living her life, just adding some degree of inconvenience to her activities of daily living.
Paul Edelstein:
Okay. But that’s the same as Harold, let’s say.
Daniel Thomas:
Yes.
Paul Edelstein:
So my client also had injuries. He was retired. So neither of our clients could claim lost wages.
Daniel Thomas:
Right.
Paul Edelstein:
So in that sense, they’re the same.
Daniel Thomas:
That’s right.
Paul Edelstein:
But I want you to explain that it’s obvious, a big difference for Pam SinClair, she had a compensatory claim and an injury, the worst type of injury you could ever have.
Daniel Thomas:
Right.
Paul Edelstein:
That’s different than Harold’s.
Daniel Thomas:
That’s right? And the worst type of injury you could ever have is death. And sadly, that’s what happened to Pam SinClair. And she had suffered a death in a state of fear and the fear that again, our job as lawyers are to bring to the forefront for the jury’s consideration, how much detail and how much nuance could we mix into the facts to give them some sense of if they were there. And I believe we did successfully, as is demonstrated by the verdict, that the jury really understood the full impact of this woman’s demise, how it was completely unnecessary. It was all due to Harley’s negligence.
Paul Edelstein:
Oh, yeah.
Daniel Thomas:
They basically lied about their data, they covered up their lie, and then they lied about their cover-up.
Paul Edelstein:
Well, that’s true, but let’s just talk in a general sense. So Pam died and Harold lived.
Daniel Thomas:
Yes.
Paul Edelstein:
And both of them, we went to the jury and said, “You got to compensate them for that.”
Daniel Thomas:
Right.
Paul Edelstein:
But you and I both knew that one case, from a compensatory standpoint, was strangely going to be worth more than the other. Which one was it?
Daniel Thomas:
Strangely, the one that’s worth more is Harold’s.
Paul Edelstein:
Therein comes the WTF again, right? I really should be able to, it’s my podcast, but I try to keep it clean. That’s another one, right? So we had compensatory damages, but you and I both knew that no matter what this jury was going to do, and they did, they gave Pam SinClair exact, based on what you were saying, they understood holy, horrible, what happened to her, compensated her off the charts. I forgot the number, but they did it exactly right in compensatory. And they gave Harold a very appropriate compensatory number also.
But you and I both knew before we said one word to this jury, that Harold’s case, under the law had a higher value than Pam’s.
Daniel Thomas:
That’s in New York state.
Paul Edelstein:
That’s messed up. In New York state.
Daniel Thomas:
Right.
Paul Edelstein:
In Brooklyn. But we’re going to talk about that. It’s so funny. I have my Brooklyn shirt. The only reason I have my Brooklyn shirt is because I had an uglier shirt on top of it before we started the podcast. So now I got my pretty Brooklyn shirt on, and I’m going to talk about that in a minute. We’re going to take slight break-
Daniel Thomas:
Right.
Paul Edelstein:
… of Brooklyn, why it’s important, Brooklyn and where we were in Livingston County actually makes a difference. But let’s first talk about the general thing between-
Daniel Thomas:
Sure.
Paul Edelstein:
… your worth. I want you to explain in your fantastic ability as an orator to a layperson audience, why you are worth less dead, your case is worth more if you live in New York state than if you die, because it’s just a ridiculous concept to me.
Daniel Thomas:
That’s right. In New York state, unlike many other states, majority of states, if you die, the only people that are entitled to be compensated for your death are your blood relatives, as in your child, your spouse, that’s it. That’s it. If you have a domestic situation, you’re not legally married. That person’s out of the box. If somebody cared for you for years and years, you had a tremendous bond, under the law in New York, irrelevant like they’re a stranger in the street. So you’re limited in the damages in terms of death to a finite category that is no longer resembling the majority of the way people live in life.
Paul Edelstein:
That’s crazy. Let me give you a scenario.
Daniel Thomas:
Yeah.
Paul Edelstein:
I’m driving in a car. I am a very high-powered, high-earning, extremely handsome, young attorney, making a living.
Daniel Thomas:
Right.
Paul Edelstein:
Okay. I have two young children, who are fantastic too. I’m driving in a car with my wife. My wife is an extremely attractive, young, really smart, amazing person. But she doesn’t work.
Daniel Thomas:
Okay.
Paul Edelstein:
No earnings.
Daniel Thomas:
Right.
Paul Edelstein:
She really does work, but she doesn’t have earnings. She works her behind off doing a million things, but she’s-
Daniel Thomas:
Not a wage earner.
Paul Edelstein:
Correct. Not a wage earner. Okay. And I’m going to put someone else in the car.
Daniel Thomas:
Okay.
Paul Edelstein:
My grandma, she’s not here anymore, but let’s bring her back to life and put it back in the back seat of my car.
Daniel Thomas:
Okay.
Paul Edelstein:
My retired grandmother who has no spouse, no job, nothing. Okay?
Daniel Thomas:
Okay.
Paul Edelstein:
Is in the back seat of my car. My wife is in the front seat of the car. I am driving. And a giant tractor trailer smashes into us head on and all three of us die instantaneously. We never know what hit us. It’s actually right. We’re all immediately dead. And now one of our heirs comes to your office and says, “Okay, obviously it’s not our fault. This is a slam dunk case. What do you think the value of the three different cases are?” I’m saying they all died.
Daniel Thomas:
The answer to that-
Paul Edelstein:
They all died. It should all be the same. And what’s the answer?
Daniel Thomas:
No, the answer is it’s not even close to the same. So the husband, wage earner, husband, father of young kids, is by far the most valuable of the three, because he has all these line items to his credit. He’s a spouse, he’s a parent, he’s a wage earner. He’s young. So he has a longer life expectancy. Now, the mother, because I don’t want to use you, I don’t want to use your family, I don’t want to use your wife, but I understand your question. The mother who is also young has that line item, also a parent and a spouse doesn’t have that line item for loss of earnings. So you can’t extrapolate out what the earnings would’ve been into the future if there’s a 20, 30 year work life still ahead of them, which could be an area of compensation which grows that number.
So the father, by far, has the most line items for compensation. The mother has one less in that she’s not earning wage. And then the grandmother has the least. No one’s depending on her. She’s not supporting anyone. She’s older, means she has no longevity in terms of life expectancy. She may have outlived her life expectancy for all we know, and there’s no earnings. So the less amount of line items you have that are compensable under New York state law, the less valuable the case.
Paul Edelstein:
Okay, that’s great.
Daniel Thomas:
By far, the most attractive plaintiff from a money standpoint is a young wage-earning, married with young children, individual, male or female. That’s your best one.
Paul Edelstein:
You know that? That’s some really discriminatory bull. But it just is. It’s ridiculous. So we as lawyers, we know this. I mean, this is not news to either of us, okay? Obviously. Right?
Daniel Thomas:
Can I just-
Paul Edelstein:
So lawyers like us… go ahead.
Daniel Thomas:
Can I just ask for one thing?
Paul Edelstein:
Yeah.
Daniel Thomas:
I’d like you to assume for a moment your fact pattern, but instead of his own biological kids, let’s assume that the father, the husband had six foster kids who only knew this guy and his wife as their parents. But legally speaking, all they are is foster relationship, never adopted or anything like that. The loss to those kids is immense. Law doesn’t recognize one iota of compensation to those foster kids.
Paul Edelstein:
Yeah. You made it even worse. You made me even sicker than I was before. So here’s what happens. As you and I know. So when lawyers like you and I get a case like this, we know that this ridiculous law exists and we have to try to find creative ways around it. One of them, you just touched on, parental guidance is what you’re talking about. So can we put up some parental guidance for kids, for grandkids, which is what you did in this case. Can we put up a loss? Other types of losses? Can we argue? And you did something in this case, no one’s ever done, a fear of impending death.
So in the example I gave you, I took that completely out of it. But if we change that example and we’re like, “Oh my God, that truck’s coming head on at us for five seconds, that’s actually compensable into New York law.” If I’m like, “Holy crap, I’m about to get killed.” We can compensate for that. And in the SinClair case, you did something no lawyer as far as I could tell ever did in the history of New York’s law and brought in an expert to actually… That would be a whole separate podcast. I know you’re going to want to talk about it. But in essence, you brought an incredibly highly qualified physician to explain to that jury what that really it feels like and how five seconds to a person in fear of impending death, that’s what we call it, how that can actually feel almost like a lifetime.
And I think you equated it to it, and she did as this expression we’ve all heard of your life passing in front of your eyes. And there’s some legitimacy to that concept. And as lawyers, you decided, actually, this is an amazing idea by you that I just seconded and said, “Yeah, I like it. Good idea.” You brought in somebody to say, well, why don’t we explain the physiology behind that? What happens in your brain? And without getting into the details of that, because I know you can and we should do that. That should be another podcast because that topic-
Daniel Thomas:
Yeah.
Paul Edelstein:
… should be on its own. The reason you had to do that is because of the handicaps that we face in New York with this law. And just to get away from this topic for the moment and then sort of end it because I want to go into another one, if that law sounds horrible to anybody listening to this, it should, it’s discriminatory. How many have this law?
Daniel Thomas:
Of the 50 states, there’s probably only six that still have some version of shortchanging families in death cases.
Paul Edelstein:
It’s an outrage. So we have a law pending before our governance change this law. It’s called the Grieving Families Act, which would do away with that and allow family members to actually recover. But that law hasn’t been passed yet. So if it does get passed, we won’t be having this conversation. But unfortunately, we are having it. So that’s kind of the differences in compensatory damages between our two cases. And in a minute, I want to just take a breath.
Daniel Thomas:
Sure.
Paul Edelstein:
In a minute. Let’s talk about-
Daniel Thomas:
I just want to mention-
Paul Edelstein:
… how it works.
Daniel Thomas:
I just want to mention one quick thing. Time is more valuable when it’s greater. So if somebody has five seconds of loss, that’s worth less than if they have five minutes of loss, which is worth less than if they have five years of loss. So the law recognizes the longer the time, the greater the compensation. And that’s not always a proper fair matrix to use. But that is unfortunately the nature of the beast. That’s how it is. So when you have a case like we do as plaintiffs, the longer the suffering, the more valuable it is, and we try and create some sort of dynamic by which fits that narrative, even though it’s not really a truly accurate narrative.
Paul Edelstein:
All right. Sounds like you know what you’re talking about.
Daniel Thomas:
[inaudible 00:25:04]. Right?
Paul Edelstein:
It is. All right.
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