I will never forget the first ATLA conference I attended, more than thirty years ago. Tom Lambert, a poetic and brilliant Suffolk Law School Tort Professor, presented a lecture on products liability. A small man, Professor Lambert invoked in his audience, many of us freshly minted lawyers, a pride about our special calling as plaintiff’s lawyers. “Better a fence at the top of a cliff,” he said, “than an ambulance below.” Professor Lambert’s words have stuck to my ribs. Plaintiff lawyers are not ambulance chasers, but ambulance drivers. Most of our professional lives are spent on the hard surface below the cliff, tending to our broken clients and their broken families.
The invitation to speak at your seminar is a great honor. This presentation is not a didactic one. I am mindful that this room is filled with skilled and dedicated lawyers and that you each know stories, have heard stories and have your own stories to tell about cases that inspire. That said, I was asked to tell the story of my courageous clients, Jeff and Mary Smith, who let me help them build a fence at the top of the cliff. Their story, like other stories that so many of you could tell, should inspire us all.
I met Jeff Smith on September 11, 2001. His plane left New York City, headed for Portland, Maine, at about the time Mohammed Atah left Portland, Maine, in a plane headed for the World Trade Center. I had received a call a few days earlier from Jeff’s brother-in-law, a lawyer in New York City. They were coming to Portland to interview lawyers and they wondered if I would be interested. I was.
Jeff Smith left an impression I will never forget. He had the saddest eyes I had ever seen. Boyishly good-looking and an engineer by training, he had been “Top Gun” in his Navy squadron. Jeff came to Maine three weeks earlier for a family vacation. With him was his wife, Mary, a patent engineer who had become a stay at home mom and their three children, a ten year old daughter and eight year old twins, Tucker and Ellie. They had chosen as the spot for their family vacation an upscale New England resort, the Bethel Inn. The Inn had an elevator that was manufactured and installed by OTIS around 1930. The elevator was originally designed for use by an attendant. When the elevator reached a floor, the attendant would pull back a collapsible gate, open a swinging door and passengers could enter or leave the elevator. Once the collapsible gate was closed and a call button pushed, an interlock secured the swinging door in place until the elevator reached its intended floor. By the mid 50’s the elevators – now in tenement houses and fancy Inns – had been converted to self operation.
On the last day of their vacation, the Smiths were headed for breakfast when Mary realized that she had forgotten the room key and Jeff headed to their second floor room to get it. Tucker, a bright and inquisitive 8 year old, had been fascinated by the old elevator. In fact, on the night before his death, he had asked his father to explain how the elevator worked and he had gotten his first lesson in hydraulics.
Tucker decided that he and his twin, Ellie, should take the elevator to the second floor to fetch their father. Tucker pushed the call button and opened the swinging door. He weighed 60 pounds, exactly the setting of the recloser on the swinging door. The door closed, trapping Tucker in a seven inch space. Before, he could open the collapsible gate, a maid on the second floor only a few feet ahead of Jeff, pushed the elevator call button, interlocking the outer door and trapping Tucker in the seven inch gap between the outer swing door and the collapsible gate. The elevator “shuddered” to the second floor. When Jeff opened the door, he let out a scream that witnesses described as the howl of a wild animal. Tucker’s twin, Ellie, had watched the event through a large plate glass window on the first floor elevator door and ten year old Mara was standing behind her father on the second floor.
Jeff told me that at first he and Mary had assumed that Tucker’s death was a one of a kind tragedy, until lawyers in his extended family told him that they had discovered past inquiries to ATLA describing accidents like Tucker’s. But the inquiries were from several years before and there were neither lawsuits nor reported settlements. The lawyers he had seen in Maine said that because Tucker had died instantly his case was worth no more than $400,000 and punitive damages, if they existed, would be capped at $75,000. None would take the case when Jeff said that under no conditions would he and Mary sign a confidentiality agreement as a condition of settlement. They wanted Tucker’s death to be the last of its kind.
When we first filed our Complaint we were facing a number of problems, not the least of which was the cap on our available damages. Under applicable Maine law the only damages available for Tucker’s death were for his loss of companionship (capped at $400,000), which was inclusive of the negligent infliction of emotional distress claims of the estate. Punitive damages, in the event they were available, were limited to $75,000. A worse case exposure of $475,000 was not a big enough stick to motivate the mule. On the other hand, OTIS was clearly sensitive to the press coverage that Tucker’s death had received. I knew that they would pay attention to the heart wrenching statement of Mary Smith published shortly after we filed suit:
“We have done our best to forget the horrific scenes, but it is impossible. It is something I do not wish any other family to endure. We have promised our two daughters that we will do all we can to prevent similar accidents, we feel that we have a moral obligation to see that this lethal hazard is eliminated.”
From the outset, Jeff and Mary Smith’s comments and demeanor made an impression on OTIS’s lead counsel, a tough, bright and aggressive opponent, but one who would prove himself to have quite a heart. Clearly, however, a $400,000 claim did not give us traction on the road to our goal: An end to needless deaths like Tucker’s.
Six months after we filed suit things began to move in our direction. The Supreme Court of Maine ruled that although the bystander claims of family members who would recover under our wrongful death statute, in our case, Jeff and Mary, were capped within the $400,000 wrongful death limitation, the cap did not apply to the NIED claims of family members who were not entitled to recover under the Act, namely Tucker’s ten year old sister, Mara, and his eight year old twin, Ellie. At almost precisely this time, I received a call I had been waiting for from the children’s therapist. Ellie and Mara were not only willing but eager to join the lawsuit, understanding that they would be part of an important crusade to help other families and other children. The ten year old offered her help but with one important pre-condition: “The lawyers can never ask me what I saw or heard.” We amended our Complaint adding the bystander claims and we kept our pledge to Mara.
Trained as engineers, Jeff and Mary wanted answers to the kinds of questions we plaintiffs lawyers typically ask: When did OTIS first become aware that children could become trapped between the swinging door and inside gate of their older elevators?; How frequently were children injured or killed by this hazard?; Had OTIS designed a fix? The Smiths, however, had one overarching question: What would OTIS do to prevent this from happening again?
The answers to our questions did not come easily. In response to our interrogatory asking OTIS to identify similar victims, we received an answer that provided in pertinent part “…any response by OTIS would be incomplete as OTIS is unable to state with any certainty if any such entrapments did or did not occur from 1853 to August 23, 2001.” Persistent discovery efforts, formal and informal, led to the piecemeal discovery of only seven children who had died or been seriously injured as a result of the excessive space condition in elevators similar to the one at the Bethel Inn prior to Tucker’s death. Everything changed late one evening after months of blind alleys, when we called an attorney, Judith Rodner, in New Jersey. Judith did not have much time to talk, she was busy preparing a meal for a religious holiday, but she wanted to help us. She told us that in 1990 she had received a small verdict against OTIS holding OTIS 40% responsible for the death of Shakarr Burwell, a twelve year old boy who had died in a fashion similar to Tucker. Ms. Rodner said that the case had upset her so deeply, including the jury’s finding that Shakarr was comparatively negligent, that she could not bring herself to the point of destroying boxes of files that she had stored in her basement since leaving her law firm years earlier. This was music to our ears, as neither Shakarr Burwell’s death nor the fact of the lawsuit itself had been provided to us in discovery. Ms. Rodner obtained the verdict on June 28, 1994, which explained why OTIS had changed its document retention policy on almost precisely that date, so that all Burwell documents and other documents evidencing prior injuries and deaths had been destroyed.
After a few anxious days, we had our first opportunity to have a long talk with Judith. She explained that after many unsuccessful attempts to obtain discovery from OTIS, she had obtained several Orders from the Essex County Superior Court of New Jersey compelling OTIS to provide the requested documents relating to prior injuries and deaths. Ultimately, she was allowed to travel to Hartford with a paralegal where together they reviewed boxes and boxes of disorganized OTIS documents regarding prior injuries and deaths occurring only in New Jersey and southern New York. She explained that after she plowed through the documents OTIS sought and received a protective order, preventing anyone outside of the Burwell case from learning what she discovered in her hunt, which we understood might include the identity of various children previously injured or killed in an OTIS elevator similar to the one at the Bethel Inn. The documents in Judith’s basement included both confidential and non-confidential materials. She sent us the non-confidential materials immediately. When we tore open the boxes we discovered documents which, in light of OTIS’s revised document retention policy, were the only surviving evidence of the following facts:
• In 1931, within a year of the manufacture of the Bethel Inn elevator, OTIS had received a patent for an inexpensive six inch space guard which, when affixed to the bottom of the swinging door, would prevent the door from entrapping a small child.
• In an inter-office correspondence memo dated September 30, 1943, from OTIS’ General Service Office, it is noted that present owners may not be “fully aware of the hazards that may exist on its elevators and which should have been corrected.” It is clear that OTIS had been aware of this problem since July 13, 1933. The memo goes on to describe the nature of the danger: “With the bevel-type shield at the bottom of the door, it is still possible (and many cases have been reported) for a child to occupy the space between the hoistway door and the car gate by simply supporting itself (or by hanging) on the door hardware and raising its weight above the shield. Any person pressing a button at the time (on single automatic push button elevators) would cause a serious accident. … In the case of customers whose elevators are under some form of OTIS contract service, it is the duty of the district supervisor, in making an annual equipment survey, to report any excessive space condition between car and hoistway doors and any other hazards relevant to the doors that may exist.” (Emphasis added.)
• By inter-office correspondence dated May 10, 1950, from OTIS’ General Services Manager, the following was noted: “The recent occurrence of accidents on automatic elevators, due to excessive space conditions between the hoistway door and the car gate, indicates there are still automatic elevators in operation where the space condition is excessive and space shields and flush-type hardware have not been installed.”
The suggestion made in this memo is that a reprint of the internal circular letter of September 30, 1943 be redistributed.
• In an inter-office correspondence dated March 25, 1963, from OTIS’ General Services Superintendent (R.B. Forsyth), the following is noted:
“Even though our contracts for maintenance and other forms of service place some limits on our liability, we are, nevertheless, exposed to claims whenever we have any service connection with elevator or escalator equipment. In recent years there has been a major growth in liability claims filed against us. For this reason, we wish to make a complete re-evaluation of the equipment under Class “O” contract service to determine the number of elevators and escalators which may involve ‘sub-standard safety conditions’ and to record such sub-standards by classification.”
In this memorandum, a list of “sub-standard conditions” is provided. Sub-standard condition no. 11 is “automatic elevators with more than 5 1/2 “ clearance between car door or gate and hoistway doors.
• From 1947 through 1963, OTIS published periodic detailed accident reports documenting various types of injuries that occurred with their elevators. During this period, 16 individuals, mostly children, were either seriously injured or were killed in OTIS elevators as a result of the excessive space between the hoistway door and the elevator car gate.
Immediately, we began bombarding OTIS with our newly received information, all of which was beyond the institutional memory of the corporation.
When I shared the non-confidential newly discovered documents with counsel for OTIS he appeared horrified. We filed a joint motion in the New Jersey State Court to lift the protective order. When the motion was granted, we sent a copy of the Order to Judith Rodner and paid her adult son to drive the boxes of confidential documents to defense counsel’s office in Hartford. Of course, we were present when the boxes arrived. We were shocked at what we discovered.
The Protective Order had entombed as “trade secrets” the names of thirty-four children who had been killed or severely injured in a ten year period of time (1983 to 1993) in New Jersey and southern New York State alone. We also found a touching statement made by an OTIS maintenance worker in 1980. In the space of only a few months he had been called upon to dismantle elevators in one New Jersey city so that the bodies of dead children could be removed. He was clearly profoundly affected by his experience. With all this new information we sought and received an opportunity to conduct the deposition of OTIS’s safety director a second time. It was clear at the second deposition that he had reviewed all the newly discovered evidence and clear that he had been walled-off from this information in 1994, when OTIS changed its document retention program. In fact, although he was the acting safety director at OTIS when Ms. Rodner obtained the jury verdict in Burwell he had never been informed of the claim. As concerning was that an OTIS official in 1993 purposefully erased the institutional hard drive that contained a seventy year history of a deadly elevator and the children it had killed and maimed.
Jeff and Mary Smith then became the architects of change. After they reviewed the discovery materials we had obtained and especially after family members represented their interest at the re-deposition of OTIS’s safety director, Jeff and Mary made some new, non-negotiable demands. Settling their case would require more than a departure from the usual terms of non-confidentiality. They insisted that we have a face-to-face meeting with the head of OTIS North America, Ray Mancini. Since any settlement would now require that OTIS engage in a national safety campaign to prevent deaths like Tucker’s, they wanted assurances that the campaign would be a sincere one and a meeting with Mr. Mancini would be their litmus test. Since numbers had not been discussed and other defendants were involved in our claim, I told Jeff and Mary that I did not think such a meeting would be a possibility. I promised to pass along the demand and continued to prepare for trial. Much to my surprise Mr. Mancini agreed to the meeting. We met and he left a powerful impression. He offered his sincere condolences, apologized from the bottom of his heart, and said that although he knew the case was not over OTIS was committed to fixing this deadly problem. In the course of this meeting, Jeff pointed out that as an engineer and a jet pilot he was shocked that a problem like the space problem in the OTIS elevator could have been allowed to exist for seventy years. In his quiet and understated fashion he referred to the elevator that killed Tucker as a “serial killer” who could not be permitted to kill again.
The meeting with Ray Mancini made possible everything that came thereafter. We proceeded to a mediation before a federal judge who had himself been an experienced defense lawyer. We settled the case, which we once valued at about $400,000, for $3,000,000. But this was not the important part. OTIS agreed to initiate a national safety campaign with our input. It agreed to provide free guards for every elevator with the entrapment hazard. At the time, OTIS anticipated that it would locate and repair a few dozen such problem elevators. However, by the end of their campaign they had provided more than 4,000 free guards. In addition, OTIS agreed to a national legislative campaign so that states and municipalities would adopt a section of ASME that related to the particular defect. OTIS also modified its document retention program, initiated a ten year website with Tucker’s picture and promised to keep us abreast of their efforts. They have made good on each and every of their promises. When I first got involved with this case I assumed that everyone on the other side, including OTIS, opposing counsel and OTIS’s safety director, was in a vast conspiracy to hide information and subvert justice. This is not the way I feel today.
Shortly after the settlement we had a press conference in Portland, Maine. We invited OTIS’s attorney and Jeff and Mary Smith. Our special guest of honor was Judith Rodner, a heroic plaintiffs lawyer who for very little pay personally plodded through boxes and boxes of documents scattered on a floor in a humid warehouse, obtained a verdict and then, inexplicably, brought the documents to her home for safe keeping. That evening National Public Radio had a very nice story about our case. Fortunately, they interviewed Shakarr Burwell’s mother, whom I never met or spoken with. She clearly respected her lawyer, as she should have. She shared Ms. Rodner’s disappointment over the small size of her verdict and the significant comparative negligence that the jury attributed to her son. But she said that she was glad that the work her attorney had done in Shakarr’s case had helped us and she hoped that her contribution would help put an end to this problem. To my knowledge, it has.
 It is very clear that OTIS Elevator’s counsel in the Tucker Smith case did not participate in any way in the OTIS “cover-up” that had been occurring for years. in fact, were it not for the persistence of OTIS’ counsel in the Smith case, it is conceivable that many other documents which were ultimately located would never have been discovered.