How It All Went Down

Well, the Best Jury Ever picked a foreman, and it wasn't me. Wah.

I'll get over it. I just wish it had been a little less predictable than the only young white male in the room. (This paper refers to studies indicating that forepersons are more likely to be male, white, of higher socio-economic status, and better educated than others in the jury room. Even in 2007, at least one study found that 71 percent of forepersons were male.) So out of eight women and four men, we picked a man.

Just for the record, I voted for a white woman. I thought about voting for my buddy, Juror F, a young black man, who was also on the ballot for foreman, but I didn't think he had a chance; so I voted for me. The vote was six for Juror T, four for me, and two for JF.

Today we deliberated, and reached a verdict, which I will dish about. But first, I'm going to tell you all about the trial.

The case was the estate of Scott Eskew and his widow Heidi Eskew vs. Burlington Northern Sante Fe Railroad and Metra. Scott, age 34, was killed when he stepped in front of a BNSF train on January 22, 2004, and the trial centered around the question of whose negligence caused the accident--Scott's, or the railroad's, or a combination thereof.

It sounds simple, doesn't it? A guy isn't paying attention to the lights, bells, and whistles, and accidentally steps in front of a train. How can you fault the railroad company? Don't they take every possible precaution to prevent this type of thing, and aren't people who get hit by trains just taking unnecessary risks? It's just typical of our litigious society that the railroad gets blamed.

Or is it?

The mitigating circumstance--ONE of the mitigating circumstances--in this case is the fact that Scott Eskew was legally blind. On the day he died, he was heading downtown to his job as a security guard at the Art Institute of Chicago, where he checked the locks on doors and walked a slow, methodical route through the museum to make sure no one had stuffed a Monet under his sweatshirt.

He took the 1:14 train from Berwyn every day in order to punch in at the Art Institute by 3 p.m. Every day he left his home at the same time, walked the same route, stood on the same side of the platform, boarded the same train. He walked slowly and carefully, without a cane, looking down through thick glasses at the sidewalk to avoid bumps and cracks. Everyone--the ticket agent, the conductor, the engineer--testified they knew that a blind or nearly-blind guy regularly boarded the 1:14 at the Berwyn station.

On January 22, 2004, however, the 1:14 train switched from the south track, where it collected passengers 90 percent of the time, to the north track. The mercury dipped below zero, and it was what Winnie-the-Pooh would call a Blustery Day. A freight train approached the station just prior to the commuter train's arrival.

The station ticket agent called the commuter train conductor when she was belatedly notified about the track switch. "I've got passengers on the wrong side," she told the conductor.

"That's OK," the conductor said, "I'll wait." She did not indicate where she would wait, but she then told the engineer, "We've got passengers that need to cross to the north side. Stop short of Oak Park Avenue." The problem was, the station encompasses four crossings: two at Grove Avenue, and two at Oak Park Avenue. Passengers board and disembark the train along the entire platform, from west of Grove to east of Oak Park.

The ticket agent made two announcements instructing passengers to cross to the north platform to catch the east-bound train. She also told two late-arriving passengers to cross the tracks at the Oak Park crossing in order to catch the train--but she did not mention Oak Park Avenue when she made the announcement over the PA.

It is not clear whether Scott Eskew, who was already standing on the north platform, heard the announcements and was confused; heard bits and pieces of the announcements; or heard nothing at all and was crossing to the south platform as he always did.

It is very clear that the PA system at the Berwyn station could use some improvements. Plaintiff's counsel played a tape of an announcement being made from those south side speakers as it would be heard from the north platform. It was difficult to hear, and almost impossible to understand. Then they overlaid the sound of a passing freight train on top of the announcement, to more closely approximate the conditions of at least one of the announcements. It was completely unintelligible.

I still don't know why the conductor would assume that stopping the train at Oak Park would be sufficient. One point that the attorney for the plaintiff, Jay Paul Deratany, effectively hammered home was that in all of its instruction manuals and rule books, BNSF Railroad does not have any rules to guide conductors on what to do if two trains are going through the station at the same time, or if a train is switching from its usual track, or if they are aware that passengers need to cross the tracks.

The conductor and the engineer both saw Scott standing on the platform as the train approached the station. There was some debate about whether or not he was in a place of safety--the conductor contradicted her own deposition testimony and insisted at trial that he was not in a place of safety, but she also admits that she did not instruct the engineer to blow the horn--but everyone agrees that if he had not moved, the train would not have hit him.

Many factors contributed to the death of Scott Eskew, including, perhaps, his own negligence. He was not completely blind; did he look both ways before he stepped out in front of the train? If he did, would he even have seen the train? Did he ignore the bells and flashing lights because he believed he would have enough time to cross?

Many on the jury believed Scott's contributory negligence to be zero, or minimal at most. In the end, after fierce debate, we agreed to assess five percent of the negligence contributing to the accident to him. We allotted ten percent of the negligence to Metra, who employs the train dispatcher who did not communicate the change in schedules and tracks adequately; and we assigned the bulk of blame to BNSF.

We fiercely debated the amount of the award as well. We started with a range of $800,000 at the low end to $18 million at the high end. In the end we agreed upon $5 million as the total pecuniary loss, which includes Heidi's loss of Scott's "society"--an unquantifiable loss. Subtract five percent for Scott's estimated liability, and the widow takes home $4.75 million, minus her attorney's fees.

Heidi has both physical and mental disabilities. (In opening statements, Deratany said of Scott and Heidi, "She was his eyes, and he was her reason.") She met Scott through an expensive dating service. They became best friends, attended the same church, fell in love, and got married. She had found love, companionship, security, help and support. They were married for less than two years when Scott died.

Was the award too high? How do you calculate the value of "society"? I think the Best Jury Ever came up with the best possible verdict.

The BNSF attorneys disagree, and will be appealing. Short of producing a suicide note, I think they're doomed.

NOTE: I should have added this: Even though I was peeved by the tiredness of our foreman selection, our foreman, Juror MDaddy (formerly known as Juror T) did an excellent job. He was thorough in presenting us with all the instructions and procedures; he facilitated without dominating the process; and he kept us on point.

I told him later that he did a great job as foreman, and he gave a humble reply: "Everyone in this room did a great job."