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Attorney: Thomas R. Kline, 52 Firm: Philadelphia’s Kline & Specter Case: Hall v. Southeastern Pennsylvania Transportation Authority, Feb. Term 1997, No. 0732 (Ct. Common Pleas, Philadelphia Co.) When suing two defendants, says plaintiffs’ attorney Thomas R. Kline, there are distinct advantages to rejecting any settlement offer from one of the parties. “You only settle when one of the defendants offers enough so that you’re trying the case for free,” he says. Even when a capped defendant offers the limits of a cap, he believes in pursuing the case against both tortfeasors to maximize the damages. In a recent trial, he represented a young boy whose foot had been severed by an escalator in a Philadelphia subway station. The boy and his mother were suing both the transit authority and the escalator manufacturer. Because Pennsylvania has a cap on damages against state agencies, the damages against one defendant, the Southeastern Pennsylvania Transportation Authority (SEPTA), were limited to $500,000, or $250,000 each to mother and son. SEPTA offered a total of $250,000. The co-defendant, Morristown, N.J.-based Schindler Elevator Co., also offered a modest pretrial settlement. Both offers were rejected, Kline reports. The Schindler offer “was far below what was adequate,” he says, and if he had accepted that proposal, he would have been limited in further recovery by the damage cap on SEPTA. Even if SEPTA had offered the maximum under the cap, he adds, he would have turned it down because “their proportion of negligence would still be on the verdict slip, and the percentage would be reduced against the nonsettling defendant.” If he had kept both in, under Pennsylvania law the cap would have been irrelevant, as long as Schindler was found 10 percent or more at fault, he says. “We would be able to collect the entire judgment.” Beyond this, he says, plaintiffs nearly always benefit if there are multiple defendants. “My view is that you never end up with nobody when there’s finger-pointing.” Ultimately, his decision not to accept the settlement offer by the capped defendant led to a $51 million verdict for Shareif Hall and his mother. Kline, who specializes in personal injury, products liability and medical malpractice, has had more than 100 verdicts, and settlements of $1 million or more. Overall, he wins more than 90 percent of his cases that go to jury verdict. AVOIDING A CAP The Hall litigation was spurred by a Nov. 27, 1996, accident at the Broad and Columbia subway station in North Philadelphia. Ms. Hall had stepped on the escalator holding her son’s hand, Kline reports. But as Shareif, then 4, reached the top step of the escalator, the step dropped enough to create a gap between the comb plate and the escalator, and the child’s foot was caught, Kline says. The escalator ran for several minutes, until maintenance workers turned it off. By then, Shareif’s right foot had been severed. The Halls sued SEPTA, charging negligence, and filed a products liability action against Schindler Elevator. The claim against Schindler was that the company had failed to include a comb plate shut-off device in manufacturing the escalator. The claim against SEPTA was that the escalator was poorly maintained, leading to the gap which caught the boy’s foot. In selecting a jury, Kline says, he was looking primarily for women who had children. He felt that Ms. Hall’s testimony — “how she double-knotted the boy’s sneaker, how she watched as the child’s foot was ripped off” — would particularly resonate with mothers. The jury was empaneled with 11 women, nine of them mothers. Kline opened by talking about the injury. “I always start with the claim. The jury has to understand what you’re in court for and who they’re being asked to help.” Then he turned to how the accident happened, and finally to “who is responsible.” During his presentation of the evidence and witnesses, however, he saved Shareif for the end. “I introduced him by picture, but he was not in the courtroom,” Kline says. In the opening, he adds, “I did not show the mangled boot at that time. I wanted to leave something to the imagination.” During his brief examination of Shareif, he recalls, “I had him take off his prosthesis and show it,” demonstrating to the jury the boy’s disability. Although the Halls’ testimony was affecting, he notes, the trial turned on another witness — Russell Figueira, the director of safety and risk management for SEPTA. Figueira was the author of the preliminary report, which described the screws on the comb plate at the top of the escalator as having been sheared off. The physical evidence disputed this, Kline says. It was a minor point, Kline concedes. “But in trials, minor points sometimes become major points. I wanted to use this to show the jury that something was not legitimate about the investigation.” A SMOKING GUN The night before Figueira was to testify, the lawyer says, the defense sent the lawyer a fax of a May 1997 confidential accident that “referred to documents, people, and evidence that had never previously been discussed or described.” Chief among these was a reference to a May 4, 1994, memo, Kline says, that described the system’s escalators as “poor and getting worse at an ever-increasing rate.” The accident report also referred to another memo, written 19 days before the accident, he says, “which described this particular escalator as in need of repair and that the annual inspection had not been done. “This was the smoking gun,” says Kline. “Now I knew that SEPTA had known since 1994 of the condition of the escalators.” The morning after receiving the report, Kline went on the attack. He asked the court to find SEPTA in contempt and to order Figueira “to go back and retrieve his entire file.” During his examination of Figueira, he says, “I went through the entire file with him in front of the jury and demonstrated that they knew the escalators were unsafe.” On the stand, Kline says, “Figueira admitted to me that the escalators were unsafe for the riding public.” Adds Kline, “This blew the case open.” After the file was revealed, says Kline, Schindler settled with the Halls, then was dismissed completely. But there was still that cap to be considered. At this point, Kline added a charge: that SEPTA had violated Shareif’s civil rights by establishing a “state-created danger.” This claim carried no cap. “We had every element of a civil rights claim,” he says. “The entire system put the public at risk for years.” In Pennsylvania, he notes, “you can amend the complaint at any time to add what has already been proven.” But there was a downside to adding a civil rights claim, he says. “If the court accepted our argument, the defendant might remove the case to federal court. That would have stopped the trial immediately. The right to removal is automatic,” Kline notes. “I had some concern, but we took the risk.” It paid off. Judge Federica Massiah-Jackson granted the motion to amend, and SEPTA never tried to move the case to federal court. On Dec. 14, a Philadelphia jury awarded $50 million to Shareif Hall and $1 million to his mother. The jury added $65 to the mother’s award, to compensate her for the sneakers that were destroyed by the escalator. The trial wasn’t over, however. Massiah-Jackson held a contempt hearing, at which SEPTA produced files about the escalators and the accident that had not previously been given to the plaintiffs. On Dec. 21, Judge Jackson fined SEPTA $1 million for contempt of court. There was no appeal. In early January, SEPTA agreed to pay the Halls $7.4 million. It also agreed to fix the broken escalators, says Kline. Tips: � Don’t accept a settlement from a capped defendant. � Look for jurors who will identify with the plaintiff. � Don’t be afraid to add new claims during the trial.

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