Brain-injury case leads to $35 million jury verdict
Plaintiff's attorney used Springsteen lyrics to argue case to jury

By Barbara L. Jones
October 14, 2002
Reprinted with Permission of Minnesota Lawyer

A Hennepin County jury's $35.3 million verdict in a brain-injury case is believed to be the largest personal-injury award in the state's history.

The case involved a factory worker whose skull was crushed between a moving mechanical arm and a conveyor belt on a box-stacking machine. The plaintiff alleged that the machine was defectively designed and did not have adequate safety guards.

The record verdict was music to the ears of the plaintiffs' lawyers, whose trial strategy included using the words of a Bruce Springsteen song in the closing argument.

Reciting lyrics from "No Retreat, No Surrender," plaintiff's lead counsel, John Sheehy of Minneapolis, said to jurors about his client: "May your strength give us strength, may your faith give us faith, may your hope give us hope, may your love bring us love."

In an amazing coincidence, the verdict came Monday, Sept. 30, when Springsteen was in the Twin Cities for a concert. In fact, Springsteen and Sheehy were standing together at an art exhibit at the Weisman Museum when the call about the verdict came from the court. (The Weisman is featuring "Springsteen: Troubadour of the Highway," an exhibit curated by John Sheehy's sister, Colleen. Colleen Sheehy is the Weisman director of education and adjunct faculty in American Studies at the University of Minnesota.)

The case was settled the following week, before the judge began to consider the plaintiff's motion for punitive damages. Terms of the settlement are confidential.

Asked why he thought the verdict returned by the jury was so substantial, Sheehy responded: "I didn't argue that the damages should be higher if [jurors] didn't like the defendants. This verdict is attributable to the fact that [the plaintiff] could tell them about his injuries without any self-pity. ... This is a painful injury. He takes 15 medications per day. He may go completely blind. He has constant tremors and shaking. He was someone who can really teach you about the value of life."

Attorney Michael Knippen of Chicago, Ill., said the defense would make no comment on the case.

Troubled times come

Many Springsteen songs present images of the working class and their trials and tribulations. The plaintiff in the present case, Gary Forde, a newly employed factory worker at the time of the accident, fits the profile of a Springsteen protagonist.

In March 1999, the plaintiff, then 32, was a trainee learning to handle the box-stacking machine at Inland Paperboard & Packaging Inc. in Shakopee. The machine was designed so that workers would repeatedly enter beneath a rising and lowering deck to place scrap board on a conveyor deck. During his third day on the job, the plaintiff was found in the machine with his head crushed. There were no witnesses to the accident.

As a result of the catastrophic brain injury he suffered, the plaintiff is frequently confined to a wheelchair, has lost the hearing in one ear, went blind in one eye and is losing the sight in the other and will require 24-hour care for life. He can't produce tears and can't close one eyelid without the help of a weight. His left wrist is surgically fused in a bent position. He has regular spasms and tremors requiring Botox injections. Although he can walk short distances, he now has a poor sense of balance.

It took about a year after the accident for the plaintiff to regain the ability to speak. Therapists had to manually move his lips and tongue to retrain them.

At trial, the plaintiff testified that the worst part of his injury was the loss of freedom and privacy he suffered from losing his own home and his ability to care for himself.

According to Sheehy, the plaintiff retained a vibrant, loving personality and his long-term memory is intact. Sheehy said that the plaintiff has retained his sense of humor and, in fact, after the settlement was announced, exhorted the jurors never to lose their senses of humor, no matter what happened.

The case was tried by Sheehy and attorneys Michael Snyder, John Clifford and Pamela Spaulding. The trial, which was presided over by Hennepin County District Court Judge Isabel Gomez, lasted 26 days.

During trial, "my strategy was to use the power of words to produce justice," said Sheehy. "Words when used with rhythm and attitude produced justice."

The plaintiff told the jury about the value of human life — to be able to see, walk, talk, hear and be treated as a normal human being, said Sheehy. Despite all the plaintiff's horrible suffering, his personality remained intact and he could talk about it, said Sheehy.

Sheehy produced evidence at trial showing that the company had been manufacturing the machine for about 25 years. Ten years ago, the company added a light beam guard to its machines sold in Europe. The guard prevents the machine coming down if a worker is under the stacking deck in the spot the plaintiff was believed to be when he was hit. However, the defendant did not add the protection to machines sold in the United States.

According to Sheehy, evidence produced at trial showed that the defendant knew of the dangers presented by the machines and did nothing about them. During the trial, about 570 documents were turned over that addressed the dangers of the machine and whether officials were aware of them, he said.

No surrender

On the day before the closing argument, Sheehy went to hear rock and roll writer David Marsh talk about Springsteen. Marsh relayed a story in which Springsteen asked someone with a problem: "What are you going to do about it?" Sheehy went home and redrafted his closing.

In his revamped closing argument, Sheehy asked the jury to imagine a future when a friend asked a juror, in reference to the injuries sustained by the plaintiff, "What did you do about it?"

Sheehy, a devoted fan of Springsteen, had planned all along to use the lyrics of "No Retreat, No Surrender," in his closing. The song's refrain is, "We made a promise we swore we'd always remember, no retreat, baby, no surrender." Sheehy told the jury that to relieve stress, the plaintiff's lawyers like to pretend they are a rock and roll band and that "No Retreat, No Surrender" is their theme song.

Glory days

After less than one day of deliberations, the jury returned a verdict for the plaintiff. The jury found that the defendant manufacturer negligently designed the box stacker that injured the plaintiff, concluding that the company was 100 percent at fault.

The jury awarded about $5.11 million for damages up to the time of trial, including $850,000 for health care, $180,000 for attendant care, about $84,000 for wage loss, and $4 million for pain and suffering.

The future pain and suffering damage award was $20 million, allocated as follows: future health care, $1.5 million; future attendant care, $7.4 million; and wage loss, $1.4 million.

"I attribute the verdict to the fact that he had a terrific constellation of injuries but his personality remained intact — his humor, his wit, and his dignity," said Sheehy. "Our trial strategy was to work hard and pull something good out of something horrible."

Sheehy sent Springsteen a copy of the verdict and a letter written on the back of a photo of Sheehy's 1949 Cadillac. (Cars are a prominent theme of the Weisman exhibit.) Sheehy wrote: "The right words sung or spoken with rhythm and style can be powerful tools of justice and change the world. Thanks for not forgetting that and thanks for pulling so much good out of so much bad. Thanks and thanks again."