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[00:00:00] 

[00:00:32] Gennady Voldz: All right. Welcome back to the Trial Bible where we peel back the legal curtain, one verdict at a time.

[00:00:39] Gennady Voldz: I’m your  host Gennady, and today we’re riding into some seriously bumpy territory. Buckle your helmets, folks, because we’re talking about a Harley Davidson  trike that went from Freedom Machine to legal nightmare. Joining me is. One of the most incredible trial attorneys I know who took this defective trike case all the way to the finish line and left the jury roaring louder than a V twin.

[00:01:08] Gennady Voldz: Please welcome the man who [revved up the courtroom, Daniel A. Thomas. Daniel, how are you doing today? 

[00:01:16] Daniel Thomas: I’m good, Gennady. How are you? Thanks for that intro. I could safely say that I’ve never been introduced like that, ever.

[00:01:23] Gennady Voldz: Pretty on, pretty on point. 

[00:01:24] Daniel Thomas: It’s very kind.

Unveiling the Defect: How the Trike Became a Legal Nightmare

[00:01:25] Gennady Voldz: So let’s jump right into it. Give us the, uh. Opening throttle here. What happened in this Harley Davidson trike case? What, what, what are the details, uh, that you started off with in the beginning of this case? 

[00:01:41] Daniel Thomas: Okay. the most important detail is that Harley Davidson decided in order to keep its older aging ridership, it was going to go forward with a trike, a three wheel trike, which is essentially one wheel in the front, two in the back, and put it — load up with all kinds of bells and whistles, including things that actually were counterintuitive to the actual safe operation of the machine, including a feature called traction control. So they put all these bells and whistles in terms of assist and warning signs and lights would go on and all that stuff, but they didn’t really think it out well, and they rushed the production.

[00:02:16] Daniel Thomas: They had combined their resources and they retained the services of a Bosch engineering group, to build some of the software features, including the traction control. You had a scenario in which, the client (Harold), he and his girlfriend Pam (long time Harley riders) — she was getting a little skittish from having been on these two wheelers and as they getting older with balance issues.

[00:02:37] Daniel Thomas: So they decided they were gonna trade in the two wheeler for the three wheeler and get this 2019 Harley Tri Glide trike. Bought a brand new, and, ultimately things were going fine. But, about a thousand miles in change, about 1,050, 1,060 miles in change; they’re in Florida with the trike and the thing just suddenly veers off to the left, across two lanes of traffic over grassy knoll and then ultimately crashes into bushes. They get hurt but not severely, and bike gets pretty banged up. He sends it back to where they came from in Rochester, New York and had it repaired and, just didn’t know what happened. He just couldn’t figure it out.[

[00:03:20] Daniel Thomas: Then fast forward to — so that was February of 2019. So fast forward to November of 2019. Harley puts out a recall notice saying we have a defect on the bike and bring it into your dealer and have a software patch put on. And Harold says, you know, wow, that sounds like what happened to me. He contacts Harley. Harley’s like, well, we looked into it, we investigated, and sorry, it’s not the defect. You’re going too fast. The defect only happens under 40.5 miles an hour. So too bad, so sad. Sorry. Can’t help you. Go with your insurance. It’s not a warranty issue, it’s on, you could be operator error, but you know — don’t look to us.

[00:03:56] Daniel Thomas: So he sort of accepts that because it’s all very formal. It gets a letter and a whole deal. And then, fast forward to June of –actually today is the anniversary, the five year anniversary — June 6th, 2020. They’re in Pennsylvania and the tri, again, after it was repaired and the software  patch was put on it, suddenly goes off the road. And this time it goes up in embankment, and Pam was ejected (the passenger), and she sadly died as a result of  being ejected and her injuries. And Harold was severely injured, youknow, he is in a coma and  they gave him last rights like four times in the first two weeks. And basically Harold’s son reached out to a friend and connected with a lawyer, named Paul Edelstein, who’s also excellent trial lawyer.

[00:04:43] Daniel Thomas: And he asked me to come, come on  board. And so the two of us took the case on together. He represented Harold. I represented Pam, the estate, and we started digging in. And when we started digging in, we found a lot of really, really shady stuff. 

[00:04:57] Gennady Voldz: The fact pattern, as I understand is you have two plaintiffs.

[00:05:02] Gennady Voldz: We have Pam and Harold here, a couple who have love riding the Harley. They have, they get into an accident. They don’t really understand how that accident occurs, and Harley tells them, don’t worry, we fix the bike. Your accident has nothing to do with the recall that we just sent out. You’re safe to get back on the road, and then months later they get into another accident and she tragically passes away. Is that right?

[00:05:30] Daniel Thomas: That’s correct.

The Legal Battle: Strategies and Courtroom Tactics

[00:05:31] Gennady Voldz: What is your thinking? Taking a case like this on, in terms of challenges that you think you’re about to face? 

[00:05:40] Daniel Thomas: Well, one of the biggest challenges is you’re going up against a behemoth corporation that, you know, putting aside the money, it’s at issue there. You’re going up against a company that has been down this road many times before. Harley’s been around for years and they’ve dealt with all kinds of litigation. So they are well seasoned at litigation, defending their products, defending accidents, people getting injured, people getting killed. And I’m not — I’m a sort of, just a scrapper medical malpractice personal injury attorney who is up for the challenge. And, my, you know, my attitude was bring it on and I, I knew I was gonna be up against big guns, but, so what? I’m ready. 

[00:06:22] Gennady Voldz: Let me ask you this question. You have to pick a superhero. Who are you in the courtroom? Which one? 

[00:06:30] Daniel Thomas: Probably a hybrid Superman and a Spider-Man. 

[00:06:34] Gennady Voldz: Well, you know, I didn’t expect you to say that. I could have swore that you were gonna say Batman,  because I know you love the gadgets, you love the high tech stuff. I see you as a Batman. Tell me why you’re a little bit of both Spider-Man and Superman. 

[00:06:49] Daniel Thomas: Well, Superman and my attitude. Invincible. You gotta be, you have to adopt that  attitude. That’s absolutely a necessity to go up against anybody, big or [00:07:00] small.

[00:07:00] Daniel Thomas: Spider-Man because he is my favorite superhero and his motto is, with great power comes great  responsibility. And, I’ve tried to live my life that way, both personally and professionally, so I couldn’t possibly leave him outta the equation, so.

[00:07:12] Gennady Voldz: Just a boy from Queens trying to do right for the neighborhood. Just looking for that radioactive spider to bite me, and then I’m off. I love that. All right, so I think a big part of this case is what happened before you  even stepped into the courtroom. Is that fair to say? 

[00:07:33] Daniel Thomas: Sure. And I think that’s actually appropriate to say about many cases, if not most cases, preparation — I mean, you can’t stress enough how important preparation is. The difference between a good lawyer and a great lawyer is one who knows his stuff cold and then does  not forget who his audience is, his or her audience is. Because as well as you might know, the minutiae in the detail. You’re selling your case to people that haven’t heard it before. You have to make it accessible. So the preparation comes in both understanding it and then being  able to break it down so you can convey it simply. 

[00:08:07] Gennady Voldz: So this case came to you, I mean, it must have been appealing that you have an accident and you have a trike and you have a recall on that trike  in the months before the accident happened. So tell us a little bit about the  discovery. About what Harley Davidson provides you in discovery and what you did in order to get everything that you needed? 

[00:08:30] Daniel Thomas: Well, like any case, you want as much information as you can, and in a product liability case like this, there’s gonna be a lot of paper and we ask for all of it. Harley wanted to have all kinds of agreements regarding non-disclosure and confidentiality, and they’re saying they weren’t gonna give us certain things because of proprietary information. They weren’t gonna risk it being out in the public domain. So a lot of hurdles, ’cause they were actually controlling  all of the material. They were controlling what they gave, when they gave it, how they  gave it, what restrictions they placed on it. And, you’re sort of stuck, you know, you’re held hostage to what they want. And most courts are not going to have at their say so, so Harley say so — most courts are not gonna force them to turn  over stuff that are potentially trade secrets that can be out in the, in the ether like that, so.

[00:09:20] Gennady Voldz: Did you make any motions for additional discovery in this case?

[00:09:25] Daniel Thomas: Of course, made lots and lots of motions and got lots of backlash and ultimately got some. As we kept going, you get a little more and a little more, and there were little compromises made and you were swing deals and eventually you pieced together sort of a nice appendage of, you know, assemblage, rather, of materials, which in our case totaled about 20,000 pages of documents.

[00:09:48] Gennady Voldz: You get 20,000 pages. Is that enough for you?

[00:09:52] Daniel Thomas: Well, it’s all they were giving, so it had to be enough, you know. And we kept asking up until trial, basically saying, we don’t have this, like, for example, insurance information. We didn’t have insurance information. What we were told was Harley’s, Harley has enough to cover any judgment in the case. That’s the most we were given. Hey Judge, they didn’t give it, the CPLR says they gotta turn it over 30 days., that was years ago. And he is like, well, you get, yeah, we’ll give it, but you know, not yet. I mean, okay, there’s bigger fish to fry. So that’s an example of you gotta be on top of ’em and if you, you can’t force ’em. You can’t force ’em. A judge could force ’em. But in this state, in this situation, we had different judges throughout the course of the case. So there wasn’t enough continuity for one judge to really know the whole history. And everybody gives them, gives ’em  a, a, a break. But be that as it may, yes, we did motions. But the biggest sort of  breakthrough in the discovery process was as we were going through, these 20,000 pages, and you have to go through it all. You just, there’s no, no way around it. You gotta look at every page.

Discovery of Hidden Complaints: The Role of Excel Metadata

[00:10:57] Daniel Thomas: Discovered that there was some pages where the writing was cut off and having a little bit of a tech savvy understanding of the world. Records come in different forms and they gave us PDFs, which are pretty much static documents, PDFs of Excel spreadsheets. And these Excel spreadsheets are programs that have layers and layers or like a book has many,  many pages. These programs have pages of information behind, they’re called sheets. You could have one sheet, you could have 50 sheets, and A PDF is only one  singular document. 

[00:11:31] Gennady Voldz: And it just shows that front sheet. It doesn’t show you the sheets behind that same document. 

[00:11:36] Daniel Thomas: That’s right. And we did see though, in the PDF that there was some writing that was cut off because essentially it’s like a, you know, boxes and like a table and some of the print went beyond the boxes or underneath and was cut off. So we had to get the raw  data and we did. 

[00:11:52] Gennady Voldz: And what did you find out in the raw data that they provided you? 

[00:11:57] Daniel Thomas: Well upon getting the, the, the spreadsheets, and looking through the various layers that were not initially provided, we learned that there were numerous instances of these complaints that did not match the public face that Harley was giving of only five instances that resulted in a recall. 

[00:12:16] Gennady Voldz: So I wanna talk about the actual recall itself. Tell us what it is that Harley said, what the recall was for and why it was published. 

[00:12:25] Daniel Thomas: Okay. Harley basically put out a recall saying that there was a defect with their trash control system. It was a software defect and that it would engage one rear  brake intermittently outta the blue with no warning, causing the vehicle to change direction. And making it more likely to have a crash. So that’s essentially what they put out there as their  recall. but they only represented it to be a software issue. A lot of people were going along, and this is, you know, it’s a dangerous thing because you have two real wheels. One is gonna break, it’s gonna change completely the direction of the vehicle. And, they said bring it in and have it fixed. Sort of like you have a recall, uh, or rather a, a software update on your computer. Right. Security, fix a patch, things like that. So that’s what they told the — it was a worldwide recall — all the owners, all the dealers

[00:13:15] Gennady Voldz: And that worldwide recall mentioned that there were only five instances, or through their own records it showed that under the recall specific, under the specific details of this recall, there were only five instances that applied to this recall?

[00:13:31] Daniel Thomas: Well, the company makes a decision that there’s a defect sufficient enough to warrant a recall. They then contact the National Highway  Transportation Safety Administration, NHTSA, and they work with the federal government by saying, Hey, we need to recall our product. Here’s the basis for it. Here’s the reason. Here’s what we’re looking to do. And if you tell on yourself, so to speak. It’s called the voluntary recall. Company goes to the government and says, look, we’ve discovered something. We want to fix it. Here’s what we’re gonna do. The government usually say, okay, great. Go for it. As opposed to a forced recall where the government tells a company, we found a defect and we are gonna basically over  oversee and supervise your remedial measures. So Harley has basically had numerous recalls over the course of its history and it proudly stated in court it never was forced to recall. It was always a voluntary recall. Now, they take that as a badge of honor, but in reality, they know that if they were forced to do a recall, that they were gonna have way more restrictions on them and much more oversight. So they do a voluntary recall to reduce the amount of restrictions, reduce the amount of oversight, and give them a lot more freedom and flexibility, including plausible deniability.

[00:14:45] Daniel Thomas: So the five instances that we’re talking about were really the representations that Harley made to the federal government. In connection with this recall saying, Hey, we’ve learned about five instances, we want to do the recall. 

[00:14:56] Gennady Voldz: And after you uncovered those additional pages and layers and sheets of the Excel, how many actual instances or complaints dealing with this exact issue did you find?

[00:15:09] Daniel Thomas: Within the time parameters that we had, which was not the full chronology, they were 90 in about an 18 month period.

[00:15:18] Gennady Voldz: That’s crazy. 

[00:15:19] Daniel Thomas: Yeah. 

[00:15:20] Gennady Voldz: 90 instances of complaints that they conveniently said, that’s not related to the issue at hand here of why we voluntarily chose to send out this recall. 

[00:15:34] Daniel Thomas: Right. They basically had two choices, actually, three choices. They had a complaint and they had to dub it, either relevant or not, an incident or not, and it had to be both relevant and an incident before it would be considered related to the recall.

[00:15:47] Daniel Thomas: So they just simply put an N in the column as to whether or not it was relevant or an N in the column, whether or not it was an incident. 

[00:15:55] Gennady Voldz: Let me refocus to Pam and Harold and their tragic incident. 

[00:16:01] Daniel Thomas: Okay. 

[00:16:02] Gennady Voldz: We have, one plaintiff has passed away, and the other is in, terrible condition. Any video of the accident occurring itself?

[00:16:12] Daniel Thomas: Zero. No witnesses, no video. 

[00:16:14] Gennady Voldz: So how do you start to piece together that this is truly a product liability case and not user error? 

[00:16:26] Daniel Thomas: Well, you basically — there’s circumstantial evidence and on top of it, in this case, which is not unusual, Harold was amnesic to the accident. He didn’t have any recall of the accident, so he couldn’t contribute his historical accounts, if you will, to what happened moments before, during, or after because he had no recall. So you have a situation which you gotta put it together  through circumstantial evidence. Essentially, it’s sort of a diagnosis of exclusion, and then you have to ask, what’s the likelihood that the machine had a known defect of a nature that is so exact to what the accident reconstruction experts put together and said, this is how it happens.

[00:17:10] Daniel Thomas: And in our particular instance, our accident reconstruction expert, said that based on the markings on the pavement, based on the imprints, on the embankment where the vehicle landed, the damage to the vehicle, all of the physical evidence, it had to have happened one of two ways. Either it was a brake activation causing a sudden  change in direction, or it was a actual steering input change, where the actual operator quickly turned the wheel or turned the handlebars, and he wasn’t able to say which one it was. He just said the physical evidence supported one of those two items. So the jury was left with having to decide was it the defect condition that Harley knew existed, although claimed was not — the vehicle was going too fast to qualify as this particular defect, or was it essentially a suicide mission on the part of Harold, where he was purposely just cut that wheel hard out of the blue for no reason? 

[00:18:08] Gennady Voldz: So the accident happens in Pennsylvania, I think, I believe on the Pennsylvania and New York border, but in the state of Pennsylvania. And both Pam and Harold are residents of Livingston County, New York. So the case was in Livingston County, New York State Court, is that correct?

[00:18:23] Daniel Thomas: That’s correct.

[00:18:25] Gennady Voldz: So the PJI that is applicable here as New York, PJI. And we’re talking about product liability, negligent manufacturer, which is 2:125, and negligent design, which is 2:126. That’s your primary liability, PJI. Is that right?

[00:18:45] Daniel Thomas: Right. Well, there’s also a failure to warn and warrant and, warranty defect. Well, breach of warranty. 

Jury Selection in Small-Town Trials: Challenges and Approaches

[00:18:51] Gennady Voldz: Okay. How do you start to shape this case before you go into jury selection? What starts to become your ethos or the the grand theory that you really wanna convey to this jury?

[00:19:11] Daniel Thomas: Well, in this particular case, it took a lot more thoughtful consideration, and I’ll tell you why. Paul and I are both New York City lawyers and we’re in the Finger Lakes Western New York region, and we are clearly outsiders. We sound different, we look different, we act different. Fortunately for us, Harley had, retained their national counsel who goes around the country defending Harley cases, who were also not local players, although they did have a Buffalo firm as their co-counsel. So it was really first had to endear yourselves to your jury pool, and that was essential to overcome that interloper mindset if some of them had that. Now, the thing that you have going for you as a plaintiff in a scenario like this is that you’re representing one of their own.

[00:19:59] Daniel Thomas: So automatically you’re gonna get some degree of goodwill because even though you’re out of town, you’re here for a local and you gotta lean into that. And you also have to lean the out of town component of it and demonstrate. And we did, but it was all very sincere. By the way, we rented a farmhouse. An Airbnb, ’cause we knew it was gonna be a long trial. Didn’t stay in a hotel, lived in the community with the people, went shopping in the stores, you know, didn’t see the jurors, but saw locals and really got a flavor for it.

[00:20:27] Daniel Thomas: And we shared that with the jury. We purposely went up a little early just to get a feel for the area and shared that in jury selection, be like, you know, this is beautiful, waking up these corn fields and this, you know, just clean air and just really lean into your circumstance and, demonstrate appreciation. So that was, but it was all sincere. But that was definitely, definitely part of the ethos that, we adopted. 

[00:20:48] Gennady Voldz: I love that. I  love that. Telling them straightforward. I’m not from here, but I appreciate what you guys have here and I, it’s a pleasure for me to represent one of your own, uh, it sounds like really goes a long way in them accepting you and understanding that you’re trying do the right thing for the people.

[00:21:10] Daniel Thomas: Conversely, just for the sake of, reviewers, Harley got up during jury selection and basically leaned into, look, we’re as American as apple pie, we’re of the earth like you are. You know, they did try and endear themselves to a certain extent, and even at one point said, you know, raise your hand if you think that Harley deserves kudos for a voluntary recall. And all the jurors raise their hands. Now, mind you, they didn’t know any details about the case, but it just sounded really good. And so they painted a picture of, Hey, this company is good. It’s got there to do the right thing and, you know, don’t listen to what the plaintiffs are gonna say about us. 

[00:21:48] Gennady Voldz: In terms of your strategy with respect to the facts of the case that you had going in, what was the mentality there, knowing that you were really going to emphasize this recall, this voluntary recall was, in fact, not as truthful and honest as they made it sound like?

[00:22:10] Daniel Thomas: Well, again, you gotta know your audience, but you also gotta know your facts and which facts jive best with your audience. So we knew that because Harley was relying on its internal engineers as their experts. They didn’t go to outside experts, so they didn’t have seasoned expert witnesses. They did have one, as an accident reconstructionist. But in terms of the inner workings of the machine that we were attacking, the manufacture defect, the design defect, they used all the internal engineers because they couldn’t possibly say to [us, we’re not giving you this information ’cause it’s proprietary in nature.

[00:22:44] Daniel Thomas: And then they go out and hire some, some third party experts. So they had to use their internal people. So we knew right away that they might be smart, but they’re not in their element. And you need to factor that into the calculus of how you’re gonna deal with it. And we drew them out in that respect.

[00:23:02] Gennady Voldz: Was the defense here going to try and shift gears and just blame the client and just strictly say this was user error? 

[00:23:12] Daniel Thomas: Yes. And they, but it was, it was, it had to be user error because it’s impossible. That used, that word was used a lot by the defense. It’s impossible for the defect to be a factor at speeds above 40.5.

[00:23:26] Daniel Thomas: And there was no dispute that this accident occurred. Both accidents occurred 55 to 60, so they hung their hat on the physical impossibility of the defect happening ’cause the traction control feature wouldn’t engage at those speeds. 

[00:23:42] Gennady Voldz: I’m gonna ask the juiciest question of this whole episode. What was the verdict that you got on this case?

[00:23:52] Daniel Thomas: Jury came back with $287 million in total between the compensatory and the punitive damages for the both cases. 

[00:24:00] Gennady Voldz: So punitive damages is a part of this case?

[00:24:03] Daniel Thomas: Absolutely.

[00:24:05] Gennady Voldz: All right. Is punitive damages something that you talk about in jury selection? 

[00:24:11] Daniel Thomas: Absolutely yes, when you know, but keep in mind they did try and, get outta the case through summary Jury. Harley Davidson did try and get the case dismissed through summary judgment motions, including trying to dismiss the punitive damages claim. Fortunately for us, they failed in that and the court said no there was enough. Genuine issues of material fact and dispute on both liability and punitive damages that it can go to the jury. So knowing that we had the legal right to voir dire the jury on punitive damages as aspects of the case. 

[00:24:47] Gennady Voldz: So you knew going into this you were gonna be asking for a lot of money.

[00:24:53] Daniel Thomas: Yes.

[00:24:54] Gennady Voldz: Give us a little gem, if you would please, on what it is that you say to the jury in jury selection when it comes to dealing with the idea of awarding money for punitive damages.

[00:25:11] Daniel Thomas: Well, you gotta demonstrate to the jury what it is and how it works in a way that’s accessible. And what I did in this case was I picked a prospective juror and I said, you know, is there an eatery in the area that you’d like to go to? You know, and Oh yeah — The Tavern? Okay, the tavern. So what do you think The Tavern makes a year? Maybe a million bucks. Okay, fine. Let’s assume the tavern is found responsible and is worthy of being punished. Right? They did something wrong and they need to be punished. And you said 1% of the tavern’s annual earnings is enough to punish them, send a message, let them fix their problems, let them not repeat their bad  behavior. Would that be unreasonable to you? 1%? No. That’s, that’s not unreasonable. Okay. Does it matter how much it is, what the number is? No. 1%. They, they, they can, I said, nobody’s closing their doors. You know, they can continue to serve food and  continue to be a go-to spot. They just have to change this one aspect of their bad behavior, and 1% is a reasonable way to do it. Would you be offended by that? No, I wouldn’t. Okay. Now what if I told you the same exact story, but instead of the local tavern, it’s Microsoft, or it’s Tesla, or it’s Apple, or it’s any other massive, huge corporate entity? Same 1%, but it amounts to a different number. Does that offend you? No. Perfect. You’re a good juror for our case because that’s what it comes down to. You can’t be afraid of the number. You have to realize that the process is, it’s a percentage of their value. 

[00:26:51] Gennady Voldz: I love that. Starting very small, very local, very — of course that doesn’t sound unreasonable at all when you put it that way, Just, it’s a brilliant, brilliant, brilliant move. And obviously I gotta relate back to the PJI. Punitive damages is the PJI 2:278. Uh, check out the language, we’ll post it up on the, uh, episode here. Um, all right, any other good bits that you knew? You were going to relate back during your case in chief that you set in jury selection to kind of tie your, tie all your evidence in together for close.

[00:27:36] Daniel Thomas: Sure. We promise the jury, and again, as a lawyer you gotta be very careful what you promise. ‘Cause if you don’t deliver and don’t deliver clear and clean what you promised, it can come back and bite you in a big way. So promise the jury they’d be outraged at the end of the case. That was the only promise I made. I promise you, you’ll be outraged at the end of this case. That was able to build, you know, introducing the theme that we built on throughout the entire thing. So at the very end, they were outraged because at no time could Harley have defended itself in a reasonable way when they’re saying it’s not us, it’s him, it’s the victim. They blame the victim. They ignored their defect and we were able to prove that the speed limit restriction for the defect was actually not etched in stone. Harley determined in its testing that sometimes the trike thought it was going much slower than it actually was.

[00:28:34] Daniel Thomas: So this idea that it wouldn’t happen over 40.5 might be true, but if the trike thinks it’s going 40.5 when it’s actually going 60 or 70. And guess what? You gotta set up for the defect happening. And that was really a big issue for the the jury, as well as the fact that we had the unique circumstance of having two accidents at the same track. That really was our advantage that we played off of from the very beginning. 

[00:28:57] Gennady Voldz: You have your jury selected and you’re going into your opening now. There are two lawyers, correct? It’s you and Paul Edelstein who represents both plaintiffs against the Harley Davidson attorneys. Is that right? 

[00:29:15] Daniel Thomas: He represents the operator who survived, Harold, and I represent the estate of Pam. 

[00:29:18] Gennady Voldz: Understood. So, you guys are giving two different openings? 

[00:29:22] Daniel Thomas: Yes. 

[00:29:22] Gennady Voldz: And was this a unified trial or bifurcated? 

[00:29:25] Daniel Thomas: Bifurcated. 

[00:29:27] Gennady Voldz: All right. So you guys had to get through liability first.

[00:29:29] Daniel Thomas:  Correct.

[00:29:31] Gennady Voldz: Just talking about the liability portion of it, how many, how many experts are we talking about for both sides?

[00:29:38] Daniel Thomas: We had on liability, we had four experts on liability. They had four experts on liability. 

The Bag-on-Handlebar Theory: A Defense That Backfired

[00:29:46] Gennady Voldz: And any kind of big aha moment, during the liability portion of this case where you really felt a big swing in either one direction or the other? 

[00:29:59] Daniel Thomas: Yes. One of the things that Harley did was, as the post crash photos of the trike showed that there was a bag hanging on the handlebar.

[00:30:10] Daniel Thomas: And it’s sort of a draw string bag, which was in the trunk of the trike. And obviously when the thing rolled over in the accident in Pennsylvania, it came out and somebody, we don’t know who put that bag on the handlebar, but Harley presumed that that bag was on the handlebar the entire time, and therefore it interfered with the steering, thereby making it more likely that this was operator error and the bag interfered with the steering. And that’s what the, what’s what caused the accident. It was a, to me foolish defense because it was all based on speculation that they couldn’t possibly prove. And, it seemed very reasonable that because there was no one on the scene, other people before the first responders arrived, were on the scene, probably did pick things up off the road and pull them off the road. So nobody knew who put it there. So they assigned, they basically adopted the presumption that it was on there the whole time.

[00:31:04] Daniel Thomas: Harold had testified at his deposition and at trial, I would never ride my trike with a bag on the handlebars. Never would, never did, never have, and didn’t do it this time. So the fact that they were actually embracing such an absurd defense, I think really diluted their credibility in the eyes of the jury. They had their own expert who was very good, but he couldn’t get around the fact, and he basically conceded that, yeah, the likelihood of this bag causing this was really low. And, that was a big aha moment. 

[00:31:38] Gennady Voldz: They put all their eggs in their basket. They probably blew up this photo in front of the jury.

[00:31:44] Daniel Thomas: Yes. 

[00:31:44] Gennady Voldz: Right? And uh, and that’s kind of the moment where you felt the tide shifting. 

[00:31:50] Daniel Thomas: Well, actually, I will tell you that, and I know this might sound a little, little pompous, but we never felt like we were behind on any day of trial. Every day on the scorecard, we felt we were ahead and the aha moment was really just enhancing the already sizable lead that we had in the case, which was proven to be true at the end when we spoke with the jury, and most of them were like, we felt that Harley needed to explain themselves clearly upfront in the beginning. They never did, and they never did at the end. So it was sort of like they never were able to change their minds on the thing. 

[00:32:28] Gennady Voldz: Did the information about the over 90 instances compare to the five, did that come out in your case in chief or did you wait for cross exam?

[00:32:37] Daniel Thomas: No, that came out, that came out actually, it was teased in our case in chief and it was exploded on everybody in summation. On the liability case, I had prepared slides, various, PowerPoint slides, and we had the pieces of information that were out there. And I basically put them together and related them and reconciled them in a visual presentation for the summation. And that’s when all the pieces came together. So we basically baited Harley to give us the confirmation on the way things work. And then we put the pieces of the puzzle together in a nice, clear picture at the very end of the liability case. 

[00:33:14] Gennady Voldz: How long were you on trial for in this case? 

[00:33:17] Daniel Thomas: A little over three weeks.

00:33:19] Gennady Voldz: Do you not become exhausted after about two  weeks of trial or even a week and a half. I am coming off of my fourth currently in 30 days, and I’m exhausted. Um, and you know, the last one I did was, just a little bit over two weeks. I feel like it’s not only exhausting for me because your mind is always going, but the jury is exhausted of coming in every day and listening to all this information and really, I mean, it’s really strenuous activity to dial in and focus during the hours of, nine 30 and four 30 during courtroom hours. What do you do to keep yourself sharp? 

[00:34:07] Daniel Thomas: You. Under no circumstances deprive yourself of sleep. You force yourself to put the work down and sleep. And the idea of an all-nighter makes no sense. It’s counterproductive. So if you know you’re going into a marathon trial, which I define as two weeks or more, you have to force yourself to sleep and you can get up early. But if you don’t get enough sleep, it’s gonna, you’re doing a disservice to your client. 

[00:34:34] Gennady Voldz: I feel like that’s easier said than done, especially for a young guy like me, that’s my brain just doesn’t stop. You’re thinking about the next witness, about the next day, about what just happened the day before. So I think that’s really good advice for everyone to hear is, don’t discount how important sleep is during your trial. Waking up refreshed and with a clear mind goes a long way. So I appreciate you. 

[00:35:00] Daniel Thomas: But it, it actually even, it’s even more important. It’s, it’s, it’s, it’s medicine, it’s therapy, whatever you wanna call it. But if you’re not paying attention what’s going on in the courtroom because you’re too glassy and tired, then you can’t respond in kind. So all that preparation that you did, getting ready for the case is basically wasted ’cause you can’t react on your feet. You didn’t process the information that happened in real time, right in front of you.

Delivering the Verdict: The Jury’s Decision and Its Impact

[00:35:24] Gennady Voldz: [00:35:25] So when it came to the verdict on liability, how did the jury find?

[00:35:29] Daniel Thomas: They found 100% against Harley Davidson, 0% against Harold, the operator. And that actually was probably the most, emotional part of the entire case was when both Harold and Pam’s family realized that the jury found zero responsibility for the happening of this accident on Harold. And Harley had basically been pinning this accident on him for over four years, very convincingly, by the way, in terms of their comments and the way they presented their case. And it was all operator error That verdict really liberated Harold from the, from the prison. They put him in emotional prison of thinking that even if it was their fault, he had something to do with it, he might have been able to do something different. And the jury cut those, cut those chains off him. 

[00:36:19] Gennady Voldz: That’s incredible. it’s incredible when you’re there in the courtroom and when you see the emotion, when you feel the emotion, what we do. it can’t be described in words. when you get a right and just verdict, the relief that these people feel is, I would say, worth more than the monetary value, of any verdict.

[00:36:44] Daniel Thomas: It sounds good to say that, but it is actually very true. That is, for me, way more valuable. That’s the thing that endures. Sleeplessness is a form of torture. Now imagine if you doled it out in small pieces over the course of a person’s lifetime. That’s torture. To release them from that kind of emotional, mental anguish is liberating on a level that money can’t give you.

Humanizing Damages: Neuroscience and ‘Time Dilation’ Techniques

[00:37:10] Gennady Voldz: Yeah. Incredible result on liability. I wanna change gears and move into the damages portion because you did something here with Pam’s case that I think is vital for every single attorney to hear. So we have an injury of death, but you included — well, give us the details as to exactly what the injury was to Pam that you had claimed in the damages portion of the trial. 

[00:37:43] Daniel Thomas: Well, being, the fact that the, the accident was not witnessed, and everything was circumstantial in nature and we know that at no time was anyone able to offer evidence to support that she was alive anytime post contact with the ground. It was all speculation. So realizing that I was limited, and realizing that essentially, at most, conservatively talking, in a light most favorable to the plaintiff, you had maybe five seconds at most between the trike, first destabilizing and Pam coming to rest on the ground.

[00:38:22] Daniel Thomas: So five seconds is not a long time, and it comes down to, seeking compensation. But I did realize after, you know, I’ve been doing this over 30 years, that five seconds may not be a real five seconds under such heightened emotional, stressful circumstances for an individual. So I reached out to a neuroscientist clinical psychologist by the name of Heather Berlin and, um, here in Manhattan, and she had never testified before.

[00:38:54] Daniel Thomas: And I had said, look, let me present to you this facts of the case and tell me what you think. And when she heard that Pam had been the victim of this kind of an accident previously, that she had expressed anxiety and fear of getting back on the trike, but that she ultimately decided to get back on because Harold was her boyfriend and they were trying to move on with their lives, but that she always was uneasy, that she had a hypersensitivity and therefore she was hypervigilant about anything. So think of it like if someone’s on a plane and there’s turbulence, you know, you might like, oh my God, we’re going down. You know, I mean, there’s a sudden change in everything that goes on in your body and there’s actually chemical changes that happen as well in those heightened states of, of fear and anxiety. So she explained that given the timeframe, three to five seconds, that’s not a real three to five seconds for her. The person experiencing this heightened sense of fear and the law does allow for something called fear of impending death or fear of impending doom.

[00:39:55] Daniel Thomas: she was able to really describe and explain both physiologically and pathophysiologically in terms of what happens in the brain, what goes on, including the alteration of time perception. So you’ve heard the expression, I was so scared my life flashed before my eyes. That’s a true phenomena in which, in a matter of seconds, a person can process hours of information, the equivalent of hours of information in real time in a matter of split seconds.

[00:40:26] Daniel Thomas: So she was able to use the fact patterns that we gave and say in all likelihood, she experienced these various emotional doubts and questions and fears, oh my God, who’s gonna take care of my kid? And who’s gonna look after this? And all of these things that happened in her brain, which would take a normal person hours to experience happen for her in a matter of seconds. So that was really able to paint a great picture of the alteration of time perception for someone in a heightened state of fear. 

[00:40:59] Gennady Voldz: To take what most attorneys would say, I got five seconds here, and to turn it around to retain a neuroscientist to talk about, ultimately we’re gonna call it pre-impact terror and do what you did is incredible. When she did testify, the neuroscientist, you mentioned briefly time slows down when you’re in that heightened state of mania. So what did she testify to? What are those five seconds equivalent to when you’re in that state of mind? 

[00:41:39] Daniel Thomas: She said if [you were to measure it in real time as we perceive time, you’re looking anywhere from minutes to hours. And it all depends on the individual, but because of her hypersensitivity to this accident having happened before, she likely it was closer to the hours than the minutes. So if somebody’s completely unexpecting of something, they’re  not processing it quickly enough, but if they live in fear of it, then they’re gonna process it more quickly.

[00:42:06] Daniel Thomas: So she had a greater understanding of  how dire the situation was. Much sooner, even though we’re measuring this in, in like milliseconds. and therefore the amount of stress that she experienced, the amount of pain and suffering, if you will, mental emotional pain and suffering actually lasted way longer because she was, a second time around, sudden departure from the roadway on the strike.

[00:42:31] Gennady Voldz: So that is PJI 2:320, which is the wrongful death and conscious pain and suffering. And obviously this pre-impact terror is conscious pain and suffering. So did you touch on that in jury selection? Did you have any, good moments there when you spoke about this kind of concept?

[00:42:52] Daniel Thomas: Yes. In fact, one of the panelists we did not choose on the jury was a hospice nurse, and I asked, are you familiar? Are you open to the concept of pre-impact terror? Fear of impending doom. And this nurse in front of the whole panel described that, yes, it’s a real thing. I’ve seen it happen before. I’ve, you know, do hospice stuff.

[00:43:14] Daniel Thomas: And so she really sort of endorsed to a certain extent the concept, although I couldn’t get into great detail and, you know, chose not to select her for other reasons. But, that didn’t hurt in sensitizing the jury that, oh, this is a real thing. But I believe that Dr. Berlin was so compelling. In fact, even the judge said by far the most compelling witness in the whole case, not the smartest necessarily, because they were very smart people and engineers talking. But in terms of the information that was learned by the jurors and the audience, that was by far the most, unique and unexpected, if you will, at the whole trial. And, my suspicion was that if I could convince a jury. That seconds really was like hours that I could justify getting a big number and keeping that big number on appeal.

[00:44:02] Daniel Thomas: So I did some research in New York State and saw what the biggest sustained pre-impact terror verdict was. And it came from the crane case, the crane collapse case in Manhattan, east 91st Street. And that was 2.5 million for about 20 minutes of pre-impact terror. Meaning from the time of injury up until the time they died. And, um, so, or fear of impending doom, I should say. And, uh, so wasn’t looking to break any records, just looking to match it.

[00:44:36] Gennady Voldz:  Get a sustainable verdict. Uh, any position from the defense on the damages portion of the case? 

Harley’s Trial Tactics: Waived Opening and No Cross-Examination

[00:44:432] Daniel Thomas: You know, very, even to this day, I’m still bewildered by it. Harley Davidson deferred it opening statement, which I don’t even know what that means. You can’t defer it. You either do it or you don’t. So they waived it. They bailed it. They waived it. And then of the 14 damages, witnesses that were put on between my case and Paul’s  case, they asked about seven questions of one orthopedic surgeon on Paul’s case and that’s it. They waived cross-examination of all the other damages witnesses. 

[00:45:16] Gennady Voldz: They waived their opening on damages. Was there anything else that they did during the damages portion to try and limit the punitive damages aspect of the case? 

[00:45:28] Daniel Thomas: Yes, actually there’s something they tried, but fortunately for us, it didn’t succeed. Harley showed up with a case from the 1980s from the Ninth Circuit federal court that said that when you’re being sued for punitive damages and defending yourself, you can bring in proof of changes in your practices, for the jury to consider as a way of, downgrading the extent of punitive damages or diluting the extent of punitive damages and say, look, we’ve taken it upon ourselves to self-police. Therefore, don’t hit us as hard. And that was their intention. So they wanted to bring some big wig vice president outta the boardroom to Geneseo New York and put him on the stand so he could tell the jury, look, we’ve, we’ve heard your verdict in the past four days. We’re changing our culture moving forward and all that stuff. You know, we obviously objected saying we’re looking at this case and this case spoke to years between being sued and the verdict. The company had changed its evil ways and that the court allowed to come in. Not four days between having a jury tell the world that you did wrong and you now saying, we’ve learned a lesson, thanks to your verdict.

[00:46:36] Daniel Thomas: So fortunately for us, the judge said you could put this guy on the stand, but I’m not letting you have him talk about how the culture is gonna change as a result of this viability verdict from four days ago. 

[00:46:46] Gennady Voldz: So they tuck their tail between their legs. And when it came to closing, did they, suggest any kind of numbers? 

[00:46:55] Daniel Thomas: Yes. In closing, they did suggest that essentially, a fraction of what we had sought was reasonable, if anything was reasonable at all. The, you know, as sometimes defendants will do is they’ll say nothing is worthy, you know, that we didn’t do anything wrong, therefore don’t award anything. But if you feel anything is justified, then. And they, it was a fraction of it. It was not, not, it didn’t even amount to a million dollars that they, that they had suggested was a reasonable number if the jury felt something was worthy of being awarded. 

[00:47:29] Gennady Voldz: What was the pretrial offer before this trial? What?

[00:47:35] Daniel Thomas: The pretrial offer during a mediation was $275,000. 

[00:47:43] Gennady Voldz: Tell me again, what was the total verdict? 

[00:47:46] Daniel Thomas: $287 million. 

[00:47:48] Gennady Voldz: Hoooo-whee! That’s big justice on three wheels.

[00:47:54] Daniel Thomas: Yeah. Yes it is.

[00:47:55] Gennady Voldz: So how do you unwind after that kind of a $287 million verdict? How do you unwind?

[00:48:05] Daniel Thomas: Well, again, I guess only for me, I try not to do anything that’s too extreme, beginning, middle, or end. I try and live somewhat of an even keeled life. So to unwind, I basically take a few days off, just revel in the accomplishment of all the work that paid off. And then I get back to work. You know, there is sort of a depression that can set in if you let it. And I’ve had that experience before where you just had so much action. It’s on such a level that you can’t really describe unless you live it and then all of a sudden you go back to your, you know, what do you, I’m gonna draft some bill of particulars next on a case, and that’s gonna be rivaling, that type of euphoric, that inner chi, that sort of energy. It doesn’t, but you have to accept it for what it is.

[00:48:52] Daniel Thomas: This is a cycle, you know, with every ending comes a new beginning. And um, but you do take with it a certain amount of confidence to know that when I am drafting that bill of particulars on another case, I’m gonna do a damn good job. And I’m gonna make sure that I’m gonna see this case through to the end like I did the one I just did. So, you know, I try and have somewhat of an even keel about it all. 

[00:49:14] Gennady Voldz: Thank you for being here. Congratulations on an incredible win that actually made a difference. I think the key that we are going to continue hearing in these episodes is that these wins aren’t just wins for our clients. They are wins for everybody. They’re wins for the people riding Harley Davidson in your case. We’re hoping that this kind of punitive damage gets them to truly make different decisions in the future. And it really helps, the personal injury attorneys listening and realizing that it’s not just about what you say and do at trial, it’s everything that comes beforehand.

[00:49:57] Gennady Voldz: Alright, that’s it for this episode of Trial Bible, and we know that even if justice is blind, it always hears a good argument. Loud and clear.  Thanks, Dan. 

[00:50:06] Daniel Thomas: My pleasure. Thank you.