Impact (57 page)

He pauses for his final burst. “You were told at the beginning of the trial that Hastings earned twenty million dollars in profits last year, and SurfAir earned five. Based on those numbers, my request to you is simple—I submit that two of those millions should be awarded as punitive damages to the plaintiff from Hastings Aircraft Corporation, and half a million should be awarded the plaintiff from SurfAir Coastal Airways. That's a fine of ten percent—ten percent that will be your declaration that passengers in a survivable crash should
survive
. It's as simple as that.”

Tollison goes to the blackboard and scrawls some numbers. “If you do find liability—if you find the defendants should have to pay—then you have to award damages. I've told you why I think a portion of those damages should be punitive. Now I'm going to tell you what else I hope you will do.

“First, I hope you will award Mr. Donahue his present and future medical expenses. That's six hundred thousand dollars, according to proof that has not been challenged. That doesn't go to Mr. Donahue, it goes to the hospital and to the doctors, nurses, and therapists who have tried for a year and will be trying for many
more
years to put Jack Donahue back together. I hope you have no problem with that—at the very least, Mr. Donahue should be able to pay his bills.

“I submit that you should also award an amount for pain and suffering. Now, we know Mr. Chambers will argue that Mr. Donahue is in no pain. And maybe that is true. But he
cannot
tell you there has been no suffering.
You
saw the tape—his wife doing everything from moving his toes to evacuating his bowels. Then you saw him. Jack Donahue can't retain a memory for five minutes. He couldn't remember the young man who pushed him into the room, couldn't remember the psalm I read to him, couldn't remember how to do the puzzle.
He can't even remember whether he and his wife had sex
.

“Because of the conduct of the defendants, Jack Donahue lives in a netherworld—a world that makes no sense to him, a world he can't control. You can't give Jack back the powers he had before the crash, but you can give him something. So in addition to punitive damages, I ask you to award Jack Donahue one million dollars to compensate him for his suffering.

“Thank you.”

Tollison takes his seat and tries to catch his breath. By the time he is back to normal, Chambers is deep into his argument.

“To award
any
damages in this case would be a travesty. First of all, the only
actual
damages at issue other than the doctor bills are pain and suffering. But Mr. Donahue is
not in pain
. In an important sense, he is not even suffering. He is happy, he is content, he remembers nothing about the crash, and he remembers nothing about his wife's unfaithfulness. His marriage is stronger today than when the plane went down. So where is the damage?

“But even if you do find Mr. Donahue has suffered and feel a small award of that nature is justified, you
must
reject the second element of plaintiff's claim, the punitive damages. The reason is simple—no one did anything
wrong
. To award the sum Mr. Tollison has asked for would be to punish people for doing their jobs the best way they know how. Nothing in this case compels that result. Nothing remotely justifies it.

“Look at the proof. Expensive gadgets, weighty materials, space-age plastics—Mr. Tollison would have every untried, experimental, pie-in-the-sky device anyone ever came up with tossed into an airplane on the vague hope that it would be of help if the plane ever crashed. This isn't the way business is done, or the way it
should
be done. Business can't take those kinds of risks.
Testing
is the answer. The kind of testing done by the FAA and the airframe manufacturers, the kind of slow but certain progress that has marked this industry from its inception.

“The SurfAir crash was a tragedy. But if tragedies aren't fair, at least our system of justice is, because under our system, if there's nothing
wrong
or if it's not your
fault
, then you don't have to pay. The evidence is clear that no one did anything wrong on the night of March twenty-third, and there was nothing wrong with the airplane. On behalf of the wonderful men and women of Hastings and SurfAir, I beg you not to do anything that would make them live the rest of their lives thinking they were responsible for this tragedy.

“I appreciate your kind attention. Mr. Tollison has the last chance to speak with you, according to the rules, but I hope and trust that you will remember what I've said here this afternoon, and will vote to do what fairness and justice demand, which is a verdict for the defense. Thank you.”

Chambers sits down, and Tollison stands for the final plea.

“We've been here a long time, so I'll be brief. Mr. Chambers claims his clients didn't do anything, and he's right. They didn't use safe seats or fire-resistant cushions or purchase adequate exits, which means they didn't fly the safest plane available. This isn't pie-in-the-sky stuff—as our evidence clearly showed, this is proven technology, precautions reasonable men and women would take if their interests were as much in safety as in profit. And let's be clear. If you
do
find liability, the witnesses you saw won't have to pay the judgment. No
person
has to pay; only the companies do.

“Mr. Chambers has the gall to suggest Jack Donahue hasn't
suffered
as a result of the crash. If you watched Jack here in court, you know how insulting that argument is, to you and to my client. I could say a thousand things at this point, but I will simply commend to you the words of Shakespeare—
‘He jests at scars, that never felt a wound.'

“I ask that the amount for pain and suffering be one million dollars, and I ask for punitive damages in the amount of two million five hundred thousand, and I ask for the medical expenses. It's a lot, I know. A huge sum, until you look at what's become of Jack Donahue and at the profits made by the companies who flew him to his fate.

“I thank you for your attention during these long and difficult proceedings. I am confident that you will do your duty.”

For all but the man they have just been talking about, the tortuous wait begins.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF

CALIFORNIA.

FORM OF VERDICT

Ladies and Gentlemen of the Jury:

1. Do you find that defendant SurfAir was negligent in the maintenance or operation of the aircraft on flight 617, or that the aircraft was defective?

Yes —— No

2. If so, do you find that the negligence or the defect was a proximate cause of the injuries suffered by the plaintiff?

Yes —— No

3. Do you find that defendant Hastings was negligent in the manufacture or design of the aircraft that crashed on March 23, 1987, or that the aircraft was defective?

Yes —— No

4. If so, do you find that the negligence or the defect was a proximate cause of the injuries suffered by the plaintiff?

Yes —— No

If the answer to questions three or four or both of them is yes, please continue.

We the jury find plaintiff John Charles Donahue suffered damages in the following amounts:

Medical expenses
  #600,000.
00
  

Pain and suffering
  #400,00.
00
  

5. Do you find that the conduct of defendant SurfAir was willful, malicious, and in reckless disregard for the rights of the plaintiff?

Yes —— No

6. Do you find that the conduct of defendant Hastings was willful, malicious, and in reckless disregard of the rights of the plaintiff?

Yes —— No