There’s data going all the way back to the 1970s showing that people have lost a leg while operating a forklift. Not only do these leg crush injuries keep occurring, but it’s the most common injury with a stand-up forklift. It’s a big problem. However, the industry has been able to avoid having to change anything because they’ve been able to get the standard written to support their design decisions.
On this episode of Trial Lawyer Nation, Michael Cowen and Malorie Peacock discuss how they overcame the odds to win $17.5M in damages for their client in a case against a forklift manufacturer. All this occurred in a case where the defendant said they’d never even pay $100k.
Tune in to this part one, of a two-part series, as Michael and Malorie discuss how they established liability in the case. What was one of the key winning trial strategies? Not getting sucked into disproving every argument the defense made.
Don’t miss out! Michael’s book, Big Rig Justice: A Comprehensive Guide to Maximizing Value in Truck Accident Cases is now available!
Name: Malorie J. Peacock
About: Malorie J. Peacock is a Partner at Cowen Rodriguez Peacock. She was born and raised in San Antonio, Texas and received her J.D. from the University of Houston Law Center. During her time with Cowen Rodriguez Peacock, Malorie has worked on numerous commercial vehicle, trucking, and wrongful death cases. Malorie brings close attention to detail, commitment to finding safety issues and areas of neglect, continued utilization of technology and cutting-edge visuals in cases, along with a sincere passion to help those who have been hurt, to each and every case.
Company: Cowen Rodriguez Peacock
[04:39] Case background: The client operated a stand-up forklift, lost control of the forklift and crashed, resulting in a leg amputation. These types of incidents occur once every eight days, but the industry has been winning trials on defect allegations for decades. Up until Michael and Malorie’s trial, the forklift industry was undefeated in the 2000s.
[08:38] Understanding how a forklift works and the problematic design: The forklift is operated standing up, with one foot on a dead man’s pedal, one hand on a lever, and the other on a tiller. Just a minor loss of balance from someone steering a little too hard, or unexpectedly taking their foot off of something, can ultimately result in a crash where a foot gets crushed by a 7,000 pound forklift.
[17:52] Three data sources on injuries: There were incident reports (limited details), an OSHA database (type of injury/equipment but no manufacturer info), and another manufacturer’s data (revealed percentage of injuries). Additionally, one study showed 474 injuries and recommended a door for forklifts.
[21:34] Random test v. peer-reviewed study: Michael and Malorie discuss how they taught the jury the difference and why it mattered in this case.
[36:35] The case was complicated, but strategic decisions made the difference: The client was not properly trained and the employer’s negligence was not considered. However, blaming the client would be unfair, and the focus should be on fixing the design. The defense argued about certification requirements, but it was better, strategically, to embrace the lack of training. Winning the case was a close call.
[40:08] Revealing the truth: Michael and Malorie share why it is essential to read defense cited literature, and how doing so made a difference in their case.
[46:13] Two ways to solve the problem: Michael and Malorie offered two alternative designs to the jury–a door or a seat with a seat belt.
[51:38] Most jurors aren’t familiar with forklifts, so visuals were key: Michael and Malorie used visuals to make things simple–annotated photographs and videos. They tried to use two life-sized forklift compartments—one the way it was and one with a seatbelt, but they wouldn’t fit through the courtroom door. Lesson learned!
[59:17] Preview of part-two: On part-two of this series, Michael and Malorie will discuss damages and how they made it a story–not just about despair–but also a story about love, hope, striving, and overcoming.
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In this popular and award-winning podcast for trial lawyers, noteworthy author, sought-after speaker, and renowned trial lawyer, Michael Cowen explores critical topics distinctive to the legal profession with some of the biggest names in the industry – specifically focused on developing extremely efficient law practices, securing a competitive edge in the industry, and wildly excelling in the courtroom.