Gary Switzer, an elevator repairman, hired Wayne Fisher to represent him in a lawsuit in which Switzer alleged that an improperly attached emergency hatch on an elevator car led to his fall, injuries and mental anguish.
Switzer won a $16 million judgment, issued by 191st District Judge Gena Slaughter of Dallas on May 21.
How did Fisher persuade a jury and then the judge to award high damages for Switzer, who, despite injuries to his back and foot, could walk into the courtroom and didn’t appear to be in obvious physical pain in front of the jury?
“I was able to explain to a jury what happens when long-term physical pain and mental anguish disrupts someone’s life in a way that the jury truly related to, as simplistic as that sounds. I said that I’ve lived a long time. I’ve had material success, but I have realized that material assets are not really a measure of happiness in life. Some of the richest people I know are from my hometown of Cameron, Texas. They have reasonably good health and peace of mind. And I transitioned from that to say that there is nothing in life more precious than peace of mind. But you cannot have peace of mind knowing you will have pain the next day—and not a two-Tylenol kind of pain but a more serious kind,” Fisher recalled. A partner in Houston’s Fisher, Boyd, Johnson & Huguenard, the litigator has a lengthy list of multimillion-dollar verdicts to his credit.
In the March 12 amended petition in Gary Switzer v. Grupo Zocalo Management, Switzer alleged that four corporate defendants—Grupo Zocalo, Grupo Zocalo Management, Boxer Property Management and Town Center Mall—knew about problems of the elevator’s hatch because a Texas state inspector had issued citations in 2006 and 2008 to the elevator owners or owner for “failing to secure the car top exit hatch through which Mr. Switzer fell.” The petition alleged that those defendants, as a result, each had “nondelegable duties” to Switzer “to use reasonable and ordinary care in the inspection, maintenance and repair” of the elevator and its hatch and that they had been negligent and grossly negligent.
In a March 24 answer, the defendants denied the allegations and stated as an affirmative defense that Switzer’s claims were barred because the potential harm posed was “open and obvious.”
David Bradley, a partner in Walters Balido & Crain in Houston, who represents the defendants, said that his clients would appeal based on Chapter 95 of the Texas Civil Practice & Remedies Code which, he argued, holds the contractors who provided services for the elevators liable rather than the landowners for any of Switzer’s alleged damages..
After a two-week trial and one day of deliberations, a jury issued a verdict on April 10 that found negligence on the part of the four defendants, apportioning liability 60 percent to Town Center Mall, 30 percent to Boxer Property Management and 5 percent to each of the Grupo Zocalo companies. The panel awarded Switzer $16 million in damages, including future pain and mental anguish.
In her final judgment, Slaughter followed the jury verdict.
Fisher, who delivered the opening and closing, said he tested out a trial tactic that he had never before deployed.
“I told the jury that I had instructed my client not to make any facial contortions or grimaces, and I told him that would make the jury think that you are being overly dramatic about this. We’re not in for a show; there is no acting,” he said.
Fisher’s candor apparently didn’t hurt.