Seattle PI, February 22, 2012
Levi Pulkkinen, SeattlePI | February 22, 2012
A Seattle firefighter injured in a fall and humiliated by a video taken by private investigators for the city is due nearly $13 million awarded him during a civil trial, a state Court of Appeals ruled Tuesday.
Upholding a King County judge’s ruling – in which she described the city of Seattle’s tactics as “trial by ambush” – the three-judge appellate panel ruled against the city and agreed that a video showing former firefighter Mark Jones drinking and playing horseshoes was rightly kept away from the jury.
Jones, now 48, was severely injured after falling through a fire-pole hole eight years ago at a Rainier Beach neighborhood fire station. He sued and won a $12.7 million judgment against the city.
Following the jury verdict, attorneys for the city claimed Jones had grossly exaggerated the extent of his injuries – he suffered severe, lasting brain damage in the fall – and asked that the case be thrown out. To that end, they released a video taken during the trial of Jones drinking beer, dancing, and chopping wood while camping.
In the decision backed by Tuesday’s appellate ruling, a King County judge found that the late-coming video failed to disprove Jones's injuries or even accurately portray what the city’s investigators had learned. The tape also showed Jones rocking for hours in a chair and unable to pick himself up after a fall.
“The most important thing is that it vindicates Mark,” said attorney Todd Gardner, who represented Jones in the lawsuit.
“Here’s a guy whose entire career has been service-oriented, and they’re going to throw him under the bus,” he continued. “That video hit him very hard. He felt people were calling him a fraud, a liar. And it wasn’t true.”
The appeal was prompted by the city’s insurer, AIG, which would cover any losses or legal fees in excess of $5 million, a spokeswoman for the Seattle City Attorney’s Office said. Gardner agreed with that claim, saying he believes the city wants the lawsuit “over and done with.”
The defense has several weeks to decide whether to appeal the decision to the state Supreme Court or request the Appeals Court reconsider, said Jason Anderson, an attorney with Carney Badley Spellman, the firm currently defending the city. Anderson said his clients will be considering their options in the coming days.
A ‘far cry’ from the man he was
On the night of Dec. 22, 2003, Jones was working out of the Rainier Beach fire station when he fell through the pole hole. He was found severely injured at 3 a.m. after his groans woke another firefighter.
Jones suffered 10 broken ribs, multiple pelvic fractures as well as brain and spine injuries. Among Jones’ injuries, the damage to his brain proved most severe. His brain was “torn” in the fall, and bleeding ensued.
Jones sued, claiming the city’s negligence paved the way for his fall. Following a six-week trial in 2009, a King County jury awarded Jones $12.75 million, which the city asked to be thrown out.
Accusing Jones of fraud, the attorneys for the city produced a video of Jones shot by private investigators after the trial was underway showing him dancing, playing horseshoes, and chopping wood. The video, which presented Jones as a malingerer, ended up widely viewed online.
Attorneys for the city claimed the video showed Jones had recovered significantly from his injuries misrepresented his condition at trial, and demanded the jury verdict be vacated.
King County Superior Court Judge Susan Craighead disagreed.
Jones – a former crew chief in the Air Force who also had worked as a deputy sheriff and appeared in the firefighter calendar – was “a far cry from the man Mark Jones once was,” Craighead said. The video, she found, showed Jones participating in activities he admitted he still participated in while shedding little light on the damage he lives with.
Disputing the judge’s decision, attorneys for the city’s insurer AIG filed an appeal to the state Court of Appeals. They argued the judge erred in disallowing the evidence and argued Jones and his sister – who was appointed as his guardian years after the fall – were being rewarded for fraud.
Issuing a lengthy unanimous opinion, the three-judge panel faulted the city for producing the video and an investigator late in the trial. Craighead had described the move as “trial by ambush.”
“There have been a number of examples of trial by ambush in this case, but that would be right up there,” Craighead said at the time.
Appeals Court: Video correctly ignored
Craighead also faulted the city for failing to be diligent early on in the litigation, noting “the city devoted little effort to investigating this case until its third set of lawyers was retained in early 2009.” The city’s failure to critically evaluate Jones’ damages prior to trial, Craighead continued, did not entitle the defense to a “second bite at the apple because it failed to make the most of the first.”
Setting aside the shortened video – which Gardner sarcastically referred to as “The Best of Mark Jones” – shown online, Craighead noted that the more than 11 hours of footage that showed Jones rocking back and forth in a chair for almost an hour, and being unable to stand up after falling on a beach. She noted that nearly all of the doctors who testified at trial said the video did not change their view of Jones’ ailments.
The appellate panel described the city’s late presentation of the video and investigator as “willful” and prejudicial to Jones and agreed it was rightly kept from the jury.
Writing for the court, Judge Stephen Dwyer described the city’s action as “ambush-like,” and noted the video itself showed nothing that Jones had not previously said he could do. Attorneys for the city, Dwyer continued, misrepresent the record when they claim Jones failed to disclose what one doctor described as a “remarkable recovery.”
“By the time of trial, the city was aware that (Jones) was able to hunt, fish, and play horseshoes, but the city neither inquired further about such activities nor elicited such information before the jury,” Dwyer wrote for the court.
Responding to the city’s claims of fraud, Dwyer noted that the evidence failed to support the contention that Jones had been tricking his doctors or exaggerating his injuries.
Attorneys representing the city have 20 days to request reconsideration from the Court of Appeals. If they don’t, they have 30 days to ask the state Supreme Court to take the case.
Firehouse, December 13, 2013
Firehouse | December 13, 2013
A former Seattle firefighter who suffered career-ending injuries in a fall from a fire pole hole has been awarded $12.75M.
The Washington Supreme Court ruled Thursday they were upholding the award verdict of a King County jury, The Seattle Times reported.
On Dec. 23, 2003, Mark Jones awoke in a dark bunk room at the Seattle Fire Department’s Station 33. He walked through the wrong door while looking for the restroom and fell through a fire-pole hole to the concrete floor below, the paper reported quoting court documents.
He was knocked unconscious and suffered a head injury, 10 broken ribs, fractures to several vertebrae and his pelvis, and lung, bladder, and liver injuries, reporters wrote.
Jones sued claiming his injuries resulted from negligence by the city and the department for failing to install a proper guard around the fire pole, or the door that led to it.
City lawyers showed the court a video secretly filmed showing Jones playing horseshoes, chopping wood, and playing with a ball. When a Superior Court judge upheld the jury’s decision, the fire department and city appealed to the state court.
The city told reporters Thursday they were disappointed with the ruling.
Jones’ attorney, Todd Gardner, said: “Mark is a good person, he is an Air Force veteran, a former police officer, and a [former] firefighter. He’s unbelievable in terms of service to our community…”
Seattle Times, February 21, 2012
Jennifer Sullivan, Seattle Times | February 21, 2012
The state Court of Appeals has upheld a King County jury verdict that awarded $12.75 million to a former Seattle firefighter who was injured in an on-duty fall in 2003.
Tuesday’s ruling is the second time a court has upheld the October 2009 judgment by a Superior Court jury that found Mark Jones was left permanently disabled after falling through a fire-station pole hole.
When Jones, 48, learned Tuesday of the appellate court’s decision he started to cry, said Renton attorney Todd Gardner, one of several lawyers representing him.
“This is vindication for Mark. He’s a wonderful man. He’s an Air Force veteran, a former police officer, and a former firefighter,” Gardner said.
The city of Seattle and its insurance company have fought the jury verdict, alleging that Jones exaggerated the extent of his injuries. In 2010, lawyers for the city’s insurer released a secretly filmed video showing Jones chopping wood and playing horseshoes and bocce ball after he was hurt.
The city’s attorneys have not said whether they plan to appeal Tuesday’s ruling to the state Supreme Court.
Kimberly Mills, spokeswoman for City Attorney Pete Holmes, said comments on the case have to come from Carney Badley Spellman, the firm representing the city’s insurers.
Jason Anderson, a lawyer with the law firm, said in an email that the firm is reviewing the decision and that the city’s insurance carriers are “evaluating their options.”
The city is self-insured for $5 million. The city’s remaining exposure for the Jones judgment is about $2.75 million. Everything over that amount is covered by insurance.
On Dec. 23, 2003, Jones awoke in a dark bunk room at the Seattle Fire Department’s Station 33, according to court paperwork. He walked through the wrong door while looking for the restroom and fell through a fire-pole hole to the concrete floor below.
He was knocked unconscious and, according to court paperwork, suffered a head injury, 10 broken ribs, fractures to several vertebrae and his pelvis, and lung, bladder, and liver injuries. Jones claimed his injuries left him unable to work.
In his lawsuit, Jones said his injuries resulted from negligence by the city and the Fire Department for failing to install a proper guard around the fire pole, or the door that led to it.
The city hired investigators before and after the jury trial to monitor Jones to determine his physical abilities, according to court filings.
In their motion to vacate the judgment, lawyers for the city at the Superior Court trial called Jones’ behavior a “deception.” They also said video secretly filmed at Fort Flagler State Park in April 2010 and in Montana in June 2010 called into question the “credibility and reliability” of what happened to Jones in the fall, according to the motion.
In October 2010, King County Superior Court Judge Susan Craighead upheld the jury verdict and said the silent video might not tell Jones’ whole story.
In Tuesday’s ruling, appellate judges Steven J. Dwyer, Anne Ellington, and J. Robert Leach said that Craighead did not abuse her judicial discretion by determining that “the City’s ambush-like trial tactic” of disclosing the video surveillance and other evidence would “unduly prejudice” Jones’ ability to present the case.
“Sufficient evidence supports this trial court determination. The trial court did not abuse its discretion by denying the City’s motion to vacate the judgment,” the appeals ruling read.
While many of Jones’ medical expenses have been paid by workers’ compensation, the $12.75 million judgment will be used to pay for future expenses and future medical needs, as well as pain and suffering, Gardner said.
UPI, February 22, 2012
UPI | February 22, 2012
A Washington state appeals court has upheld a $12.75 million jury award to a former Seattle firefighter disabled after falling through a fire-station pole hole.
The Seattle Times said the ruling Tuesday was the second time a court has upheld the 2009 judgment by a King County jury.
In the 2003 accident, Mark Jones was left permanently disabled after he awoke in a dark bunk room at the Seattle Fire Department’s Station 33, walked through the wrong door while looking for the restroom and fell through the fire-pole hole to a concrete floor below.
Jones suffered a head injury, 10 broken ribs, fractures to several vertebrae and his pelvis, and lung, bladder and liver injuries, court records said. His suit said the city should have installed guard rails.
Seattle officials and the city’s insurance company maintained he had exaggerated his injuries, the Times said, but there was no word on whether they would appeal.
Jones, 48, cried when he learned of the appellate court’s verdict, attorney Todd Gardner told the Times.
“This is vindication for Mark,” he said. “He’s a wonderful man. He’s an Air Force veteran, a former police officer and a former firefighter.”