When Data Shows You the Real “Bad Actor,” with Brian Aleinikoff

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Every trial lawyer knows that moment when you've built what feels like an airtight case, but you're still lying awake, wondering what will the jury actually think? Jury research was once a luxury reserved for cases that could support a big data study bill. Not anymore. Join trial lawyer and trial scientist, Alicia Campbell, empirical legal scholar, Nick Schweitzer and data guru Kevin Doman as they break down the barriers between you and the minds of your jury. This is The Fred Files produced and powered by LawPods.

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Alicia Campbell (00:00:38):

Hi everyone, and welcome to the newest episode of The Fred Files. Today you have me, Alicia Campbell and Nick Schweitzer missing today is Kevin Doran. He's insistent upon getting hitched.

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Nick Schweitzer (00:00:51):

I know why.

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Alicia Campbell (00:00:52):

I mean, yeah, and so he's not going to be joining us, but we're very, very happy for him and we'll miss him today. Yeah, really, Nick's the only one that's coming up with the new characters on the podcast with the very cool microphone. Mine is not working,

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So

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It sucks, but that's all right. And then of course, we have a wonderful guest today from Denver, Colorado, and we're going to be coincidentally talking about a ski case, which is ever appropriate in Denver, Colorado. And it's Brian Aleinikoff. And I would love you to tell the listeners or viewers, I guess since all of this is done through YouTube, and I'm just old, a little bit about yourself, where you work, what you do, but then also something like an interesting fact, something you're proud of that's more like a personal nature.

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Brian Aleinikoff (00:01:38):

Thanks for having me. First time I've been on a podcast, so very excited. I'm Brian Aleinikoff. I'm from Denver, born and raised. I went to college in the Midwest, a small liberal arts school, and after college knew that I wanted to get into the law. Wasn't sure what area really I wanted to, I was a biology major in college and talked to some scientists who had advanced degrees and then in science and then coupled that with law degrees and they did a lot of intellectual property stuff. And I thought that was a cool way for me to kind of combine my interest in science and the law. So I actually went back east to Tufts and got a master's in molecular biology. And then I went to law school at the University of Wisconsin, after which I spent a handful of years at a big firm in Minneapolis Robins.

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At the time it was Robins, Kaplan Miller and Crei. Now it's just Robins, Kaplan Crei has started his own firm. And I think some of those guys, Kathleen Flynn Peterson and Brandon Thompson, I worked with all of them at Robbins. So I did IP work at Robbins for about two or three years and took me too long to realize that big law IP stuff wasn't really what I wanted to get involved in, kind of signed up for when I started to do this. And fortunately, that group had a medical malpractice practice group, which pretty unusual for a big firm to have a plaintiff's med mal group. But Robins really started from everything I understand as they really started the firm doing personal injury stuff and then just kind of building relationships from there. And so they'd always maintained a plaintiff's med mal firm and got involved with Kathleen Flint Peterson, who is a rockstar, former president of a J inner circle, all the stuff.

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So I worked there for a couple more years and then, like I said, from Denver, always wanted to come back to Denver. So I started speaking with Jim Leventhal, who he and Kathleen kind of run in similar circles of that kind of generation of med mal lawyers. And then fortunately, I was looking to come back here at the same time that Bruce Braley had just lost his senate race in Iowa and he wanted a fresh start out of Iowa too. So we coincidentally started at the firm about the same time, I think almost 10 years ago in August. So I can't believe it's already been 10 years. So worked with Bruce pretty darn closely over the last decade or so. And yeah, it's been going well. I've skied my whole life, which is part of the reason why I'm so interested in these cases. I've got a married, a wonderful woman named Therese. We have three kids, 11-year-old daughter who is in fifth grade, and then twin boys who are seven and are in second grade who keep us busy. They just finished their flag football season and soccer season, but just started basketball season and are signed up for baseball. And of course we all winner too. So all the

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Alicia Campbell (00:04:34):

Things. All

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Brian Aleinikoff (00:04:34):

The things to keep us busy, all the things. That's right.

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Alicia Campbell (00:04:37):

That's awesome. I had no idea that you worked up there in Minneapolis with I

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Brian Aleinikoff (00:04:41):

Did.

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Alicia Campbell (00:04:42):

Wow.

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Brian Aleinikoff (00:04:42):

I did. And like I said, I was hired as a intellectual property associate to work on the IP team, and my background is biology, and so my interest was always life science, but you don't get to really pick and choose the type of IP cases that you're on at a big firm. It depends on who their clients are. And given the fact that a lot of IP these days are at least 10, 12 years ago, computer science, electrical engineering, and that just wasn't as much of an interest of mine. I like biology and science. I am sure you guys know, and I have talked to you. I mean, I think I'm the only attorney here that does that has any sort of biology science background. And that's kind of been my experience across the board. And so it's been helpful just to, if nothing else, to be able to know how research gets done on the backend and communicating with experts and finding some hidden information that had I not been involved in that area, I don't know that I would've really been in tune with.

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So it's always challenging to get experts on board and really engaged in cases sometimes. And anytime I can drop a, oh yeah, it sounds familiar from, I used to study molecular biology. It always gets their interest peaked a little bit. Just be like, oh, I'm not talking to some dopey. And I make clear that that was a long time ago and I'm sure everything that I knew about that stuff has changed. But it helps just so that they can kind of feel like they're communicating, certainly not with a peer, but at least somebody who has a little bit of foundation to talk about the complex medicine and stuff.

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Alicia Campbell (00:06:13):

Wow. How do you go from ip? Did trial work?

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Brian Aleinikoff (00:06:17):

So when I started at Robbins, they do, I don't want to say all but enormous amount of litigation for IP business litigation, insurance stuff. I mean, they're kind of founded on this motto of being top-notch litigators. And so interestingly, when I was hired at Robbins within about the first month, I was put on a trial team that was representing a called a non-practicing entity. The less polite term is a patent troll, somebody who's invented something on some property interest but doesn't actually make that product. Instead, that person uses their property interest to go sue others who are making something that infringe on their patents. So we represented this individual. His name was Dr. Chang. I went from Texas, incredible story, came over from somewhere in southeast Asia, put himself through undergrad and grad school at the University of Texas. I think he got his PhD in polymer chemical engineering in his garage, invented a soft contact lens seriously in his garage, tested on himself and his wife.

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Took the patent bar, learned how to write a patent, and got a patent on this soft contact lens. Well, it turns out that most contact lenses infringed on that patent. So he had sued siba Vision, Bausch and Loam, all the major players, and we had a lawsuit representing him against Johnson and Johnson. And it was the product that we were saying infringed as patent were the Accu View contact lenses, which I dunno if you guys wear contacts, but it's one of the biggest brands of contact lenses. So we were asking for a billion dollars. So I get put down on this trial team, I spend a good two months of my life in Jacksonville, Florida since the middle district of Florida. Were trying this case. And I actually, I went down there and of course I was a first year associate. I didn't do anything but was there and kind of observed the trial and everything, which was really cool.

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But then Robins also does something, again, they know that they're kind of producing this next generation of litigators or that's their goal. It's called got the acronym, EATP, Exceptional Advocacy Training Program, something like that, where every year they segregate it out between first and second year associates, third and fourth, fifth and sixth, and they give you a case. And the first year, couple year associates, you do depositions on that case. The next set, you try a liability phase of that case. Next step you try a damages side of that case. And Robins had a full size federal courtroom in the building, and they had, I know at the time they had just hired the former Chief Justice of the Minnesota Supreme Court and judges. And so they do an enormous amount to train folks. And so it was interesting, to get back to your question, there was no doubt that the med mal group tried more cases than any other group just because with these biz lit IP cases, those go on for years and years and years and years.

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Whereas these med mal ones, you're handling a lot more cases for shorter amount of time. And I knew I wanted to be in the courtroom. I had plenty just doing ip, the amount of doc review you do as a young associate sitting in front of a computer. And when I went and tried this case, it was the head IP partner at Robbins was the lead attorney with two or three other partners. And then we were going up against Generon Block from Chicago and Belknap Webb and Tyler from New York City. And the only attorneys who did anything at trial were these super-duper senior great attorneys. But they had been practicing for a long time, I'll just say a long, long time. And you get the feeling that with those cases that unless and until you are established partner, you're not going to get to be involved in those cases.

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You got to do all the grunt work and all the stuff to prepare, but you're not going to get to try those cases. And that's fair, right? I mean, it's a billion dollar case representing these clients. They want the best of the best. But I'll tell you, one of the things that was most interesting about that that really got me leaning on med mal was we were suing this giant company in Johnson Johnson. And what had happened was Dr. Chang had actually sold his patent to a investment group in Philadelphia. And so not only was Dr. Chang not doing anything was this patent, but he had then sold it to this group called Rembrandt Vision Care, which all they did was fund litigation to sue people who were infringing on their pact. And so I remember this perfectly sitting in the back of this courtroom, okay, so let me get this straight.

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I'm just moving, or we're trying to move an enormous amount of money from one group of really white, rich dudes to another group of really rich white dudes. And it's just kind of like, yeah, yeah, I get it. Look, it is a property. They have every reason to enforce their patent, but it just kind of leaves a little bit of a sour taste in your mouth where you're devoting an enormous amount of work in your life to doing this. And I had gotten into law because it sounds cheesy, most of us, you want to help people. And I was fortunate enough that when I was a summer associate at Robbins, the year before, I had done a couple projects for Kathleen and Brandon, and so I knew that there was this other practice group out there that you are only representing people who are injured or have loved ones who are injured or dead.

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And so there's just so much more of an emotional tie to your clients when you're doing that type of work. So shortly after that trial, I went into Kathleen's office and I said, Hey, got any room for me? So that started with the ip, with the med mal group, and I mean, kind of like you alluded to, I was trying cases within the first couple months doing depositions within the first week and just an enormous amount of exposure to the litigation world that you don't really get doing those multimillion billion dollar IP or biz lip cases. So that's kind of what really drew me to this side of things.

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Alicia Campbell (00:12:24):

Yeah, that's pretty interesting because normally if you go into that IP world, it's because you want to avoid the trial side because the IP world can come with trials, but it's actually, we just hired Anthony, and Anthony was an IP lawyer for Karti for 18 years, and it's a much more reliable schedule

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Brian Aleinikoff (00:12:40):

For sure.

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Alicia Campbell (00:12:40):

Yeah. It's not one that intrudes quite as much into your weekends, your time with your family, all that kind of stuff. Exactly.

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Brian Aleinikoff (00:12:47):

Yeah,

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Alicia Campbell (00:12:48):

It's pretty cool that you got into it. And so was the idea when you came to Lal with Bruce that you guys were going to be the med mouse section?

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Brian Aleinikoff (00:12:56):

Short answer, but everybody, so at the firm, we've kind of generally got four different teams of attorneys. I've actually split off from Bruce now and I'm working with Alex. So it's me and Alex have a team. Bruce has a team. Jim Puga has a team, and Jim Leventhal has a team, and I think we probably, in the firm, it's about 90 to 95% med mal, so everybody does med mal, a few kind of personal injury premises liability cases here and there, but it's really predominantly. But when I talked because of what I had done in Minneapolis with Kathleen and Brandon and they had such a big focus on baby cases, I had a decent amount of exposure to those types of cases. It's a pretty darn narrow field of expertise, but Jim Puga has made a name for himself across the nation of being a really good brain injured baby lawyer.

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And so I just kind of brought that over. But it was great. I mean, I tell Brandon this all the time to not pat himself too hard on the back, but the training that I got from him and Kathleen was second to none. I mean, they don't mess around with how they train their associates and what they expect of them. And I, I'm sure I would not be here, but for that. So it's kind of a funny story because when I was at University of Wisconsin, there's something called the Loyola Patent Fair, and it's like OCI. It's interviews from firms, but only for people who want to do IP law. And they did it every year in Chicago. And as a law student, you submit your name to these firms and say, Hey, will you interview me? Here's my resume, cover letter and transcript. And they kind of pick and choose because they've got hundreds and hundreds of students who want to come in and get interviewed.

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And I got interviewed by Robbins, by an attorney at Robbins, and it was horrible. It was the first interview I had ever done formal interview. I'm sweating, I'm nervous. And the guy who interviewed me, hope I can, this was just a dick. He was a former military guy. Again, I have burned into my memory. It was so traumatic. He goes, so what's your 5, 10, 15 year plan? I'm a one L or two L. And I'm like, I want to get hired by a firm. I want to litigate and I don't know. And he goes, anything else? I don't know. And then he goes, all right, so why in particular do you want to come work at Robbins? I'm like, it's a good big firm that does litigation really well known in Minneapolis. He goes, you just described any number of firms in Minneapolis. What in particular about Robbins makes you want to come here?

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I was like, I don't know, man. He didn't have a business card. So he literally wrote his name on a sticky note and gave it to me. And not surprisingly, I did not get a call back. I didn't get a second interview or anything. Then lo and behold, Robins comes to Madison to interview for OCI on campus interviews, and I throw my name in thinking, I'm sure they know that they've already interviewed me and they didn't like me, but I'll throw my name in because what the heck? It's one more click of a button. I get an interview with this partner named ER, who actually went to Colorado College. Couldn't be more different than the first interview I had. And we just kind of connected. I got a callback interview, went out to Minneapolis, did the summer associate thing there, and then eventually got hired. So I always jokingly like to tell law students, and of course it's easier said than done because here I am, but try not to get too stressed out about interviews and bad interviews because you'll end up where you're supposed to be one way or the other. So yeah, it's always kind of a winding way to get there.

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Alicia Campbell (00:16:27):

Well then with all the men now that you've done, how in the world did you get on this ski case?

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Brian Aleinikoff (00:16:32):

So I've skied my whole life. Like I said, I grew up in Denver. I'm very familiar with Vail. I've actually, this injury actually happened at Cresta Butte. I've never skied at Cresta Butte. It was actually interesting, and I remember this because the way that we do intakes at the firm, Jim Leventhal has a couple of things that he will never change. One, he will never spend a penny on advertising. He is of the position that our work should speak for itself, and if we do good enough work, we will get referrals. Parenthetically, I don't know if there are better ways to do that, but that is his motto, and it will never change as long as his name is out front on the sign. The second one is that attorneys return, every single call that comes into the office, period, hard stop, and they have to be returned within 24 hours.

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So I'm sitting at my desk Friday afternoon and I get a call from an attorney named Ty Smith in Oklahoma, and the way that the call schedule works, it just rotates. It goes from one attorney to the next, to the next, the next, and then back to the top. And I happened to be the person who was next up on that list. And I remember I was actually, I was in the middle of a meeting. I didn't take his call initially. I shot him an email, and then that Saturday, Jim Leventhal and I got on a Zoom meeting, and he just kind of told us what had happened. And it's interesting because even though we are in Colorado, Bruce doesn't ski QA skis a little bit. Molly doesn't ski, a lot of our lawyers don't ski. And so just kind of all of that combined it coming into me initially and then being a big skier, I was all about it.

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It just hit all the right kind of notes. What was crazy is Annie's injury happened on, I think it was March 16th. I talked to Ty, he's an attorney in Oklahoma. He's known the family of the Millers forever. Talked with him that Saturday, I think it was that Monday or Tuesday, I went out to Children's Hospital to visit with the parents because at that point, Annie had been brought down from the mountains and I didn't meet her or anything. She was in, I don't think she was in a coma at that point, but she was certainly in ICU. And this was COVID OE time. So they were really limiting people who could come in. But I've met with them a couple of times, just the cafeteria down at the Children's hospital out in kind of Aurora, and just ran from there. And it's kind of crazy to think back on that because that was late March of 22.

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And to see this case all the way from that initial injury through filing the complaint through doing an interlocutory appeal to the Supreme Court through going through trial and what we're going through now, all within three and a half years is pretty speedy. Just getting everything going with all of the moving parts. And again, given how injured she was and just the number of experts that we had to send out to see her in Oklahoma, trips we took out there, and the grand scheme of litigation, it moved pretty quickly, which was great for any, which you obviously can't always say as terms of these, how these cases get litigated, but no, we moved it right along.

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Alicia Campbell (00:19:42):

Wow. So you picked this up right after it happened

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Brian Aleinikoff (00:19:45):

Within a week.

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Alicia Campbell (00:19:46):

Okay. Well, let's give a little background. We got a couple of things we need to talk about because before we got involved running it, you guys had already gone up on appeal and came back down, and then of course we need to talk about the award that you won about this case, but let's go ahead and do a little background on what's going on with it.

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Brian Aleinikoff (00:20:02):

Yeah, so Annie Miller, 16-year-old, went to Cresta Butte with her dad and a group of folks from her church. They had gone on various ski trips several years, gone Cresta Butte a couple times, and they liked it because you get there, it's not one of the big, it's not Veil or Breckenridge, a little bit more off the beaten path. And Mr. Miller and dad, Mike had been a skier for most of his life and really wanted to do something with his daughter that they could both enjoy. So they get up there, I think they're up, they get up there on the 14th, they ski the 15th, everything is fine, ski the 16th and everything is going fine, and they're having a great time. And actually, Mr. Miller, one of the really powerful things that he talked about in his deposition, they had been skiing for a couple years, a couple days under their feet at this point.

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And this was the first time where the dad really felt like he was connecting and doing something with his daughter that they both loved just them, just something that they could really enjoy together. So it's about three 30 near the end of the day, most of the folks in the group had kind of just gone down to the base and Mike and Annie, they're going strong and they basically say, look, we're up here. We want to get our money's worth. Let's keep going. So they go to get on the Paradise Express lift, which they had ridden several times that day. They had ridden the day before, no problems. And I think she probably called herself an intermediate skier. She wasn't an expert, but also wasn't, she knew how to get down a hill and all that. So she goes to get on the lift, and it's her and her dad, and then two other folks, a dentist from Denver named Dr. Jensen and his son.

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And at that point, there is a lift attendant who's standing a couple feet away from her, also a couple feet away from the control panel, which has stop, go slow, the couple of big buttons on it. And while there always should be two lift attendants at the bottom there, the other lift attendant, because it was near the end of the day, had kind of gone out and was starting to clean up the area, take down the maze, kind of where people form the line. So Annie's group goes up, and it's not entirely clear what happened. I think she was either a couple inches too far to the left, or she sat down a split second too early. Regardless, her butt doesn't hit all the way down on the seat, and she is not fully seated. She reflexively grabs the chair, kind of the arm of the chair and is just getting, her skis are getting dragged and she's getting dragged along.

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Her dad sits down immediately looks over to her and grabs her and starts screaming, stop the lift, stop the lift, stop the lift. It doesn't stop. The dentist is screaming, stop the lift, stop the lift, stop the lift. People in the line are screaming the lift. It doesn't. And so with any sort of, it's called a detachable lift, what happens is it comes around the bend, it picks people up, and then it gets some speed and starts going up the hill. This was a particularly steep incline after it got on, called the low clearance area right at the bottom. And then it goes up, well, again, reasons, I'll get to it in a second. I think it took that lift attendant about 12 seconds after Annie was at the load here board to press that stop button. And so because of how quickly those chairs move, and because of the fact that it takes 76 feet once you hit that stop button for it to actually stop, right, because it's a huge machine, it can't stop immediately or people will go flying.

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So it takes after 12 seconds to stop once it actually stops. She's about 240 some yards away from where she started. And the base of the chair is 30 feet up. She's hanging by the armrest still. Her dad is hanging onto her. She's got all her ski gear on, right boots, skis, all the stuff. She's a 16-year-old girl. She's five six, she has some weight to her. Dad can't hold on any longer. She can't hold onto him. And she falls, she falls on her feet kind of feet first and then back to the head. And of course, dad is looking straight down on her, sees everything. He is completely freaking out, understandably, right? And he's asking that the chair get backed up. They can't. He wants the chair to at least get started, that can't. And so he's looking down at his daughter, seeing her not move.

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And I think it's really, it was fortunate and interesting that the first person that came to Andy's side was actually, he was just in the line of the lift. He saw this all happen. He's an emergency room physician in Durango. He didn't do much except he goes to her side, stabilizes her, makes sure that she's just okay waiting for the ski patrol to come. But I know at that point, she, at one point she says, where are my legs? What happened to my legs? She knows that early on that she can't feel her legs can't move, her legs can't do anything. She doesn't have a brain injury. And what's really interesting was, so she wasn't wearing a helmet at the time. I'll get to why that could have became an issue in a minute, but wasn't wearing a helmet, didn't have a skull fracture, nothing of a concussion, had a little bit of a bruise because she falls back and hits her head, but everything really is spinal cord related, liver laceration, that kind of thing.

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So eventually the lift gets started, dad has to go all the way up and then ski all the way back down again, just beside himself the whole time. Finally gets to Annie's side, they put her in a sea collar. They actually, they put her in a body bag, obviously not because she has died, but because that's the best way to keep her warm. But the scene of dad seeing his daughter get zipped up in a body bag and put on a backboard sent down to the bottom of the mountain, they realized pretty quickly, Gunnison Valley ain't the place where she needs to be. They can't fly her to Denver because there's a storming coming. So they put her in an ambulance and drive her all the way from Cresta Butte to Children's Hospital. Fortunately, dad gets in at that point, but mom is still in Oklahoma.

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She hears what happens, comes out as quickly as possible. Interestingly, just as a quick back on Annie, she's their adopted child, their only child, and again, from Oklahoma, she's Cherokee born. She's a member of the Cherokee Nation, and actually her first written and spoken languages were both Cherokee. She speaks a little bit with her dad, and her dad is a member of the Cherokee Nation. I don't remember exactly what he does, but is as a white male. My understanding is it's not a super simple process to become a member of this Cherokee Nation. And it's not a simple process to adopt a young kid from that nation. So they adopted her, and I remember we asked them, why didn't you have any other kids? And why'd you just stick with Annie? And Mike's response was something to the effect of, I don't want to sound like a typical dad, but once you have the perfect daughter, why would you try for another or something like that, right?

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And they super close, incredibly close family. And Annie, we'll talk about that. Annie is amazing. It's not every client, every client's not created equal. You guys know that. And some are easier or more difficult to deal with, and you couldn't have scripted a better plaintiff than Annie. She's so nice. She's smart, she's well spoken, she's well put together. Anything you would look for. So I go and I meet with the family at the hospital. We get them signed up. We start doing some digging and some research into this. And so we file a complaint, and Crested Butt is owned by Vail. So we sue Vail doing business as Cresta Butte. And we have three primary claims initially. One is it's negligence, but there was a case in Colorado, the Bagnoli case, and there's actually a former case, the Bayer case, which is a Supreme Court case out of Cresta Butte involving a fall on the Paradise Express lift, which established the standard requiring lift operators to use the highest degree or highest duty of care, right?

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So it's their duty is higher than most because, and the analysis is when somebody goes to sit down on a chairlift, that person doesn't have the ability to stop the lift. They don't have the ability to control the lift. They're seeding their safety to somebody else, to somebody who they trust to run this lift. And because of bad things that can happen on this big scary lift, they need to be acting according to the highest degree of care. So that was our first claim. Second claim was negligence per se claim. Under the Colorado Ski Safety Act, it allows the Colorado Passenger Tramway Safety Board, which is the safety board that deals with all of the moving tramways in Colorado. So primarily chairlifts, that kind of thing. But though the Passenger Tramway Safety Board adopts standards called the ANSI B 77 standards, ANSI and SI, they've got all kinds of different standards for all sorts of different engineering groups and those types of things.

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But the B 77 standards are specific to chairlifts. And so our argument was through the adoption of those antsy standards, because those are statutes and rules. Violations of those statutes and rules is negligence per se. Okay? So that was the second claim. And then the third claim, like any waiver case, is a gross negligence claim. Knowing that even though there's a waiver, the law is pretty clear that you can't waive gross negligence. So we filed a complaint within about 10 minutes, we get a motion to dismiss from veil, and they're represented by Wheeler Trig and expected it to come any opportunity they'll see and right, and what's the harm, right? If they win the motion to dismiss, all of this goes away. So file a motion to dismiss. We respond. The gross negligence is pretty simple. Law is clear. You can't waive gross negligence. Highest degree of care was trickier because our argument was that can't be waived.

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The Supreme Court of Colorado has said that is their duty that they have to apply. Well, the trial court said that can be waived just like any other negligence claim. You look at the Jones factors under the Jones v Driscoll case of was it entered into freely parties understand it, public policy. And so long as those are satisfied, if the person signs the waiver, that claim is waived. That was disappointing. Not super surprising. The negligence per se claim, though, our strongest position was common law has always said, you can't abrogate a statutory duty. You can't contract away a duty that the legislature has imposed upon you. So the argument being the legislature has said ski areas, you have to do these things. You can't waive that by entering into a private contract with the skier. We thought that was a pretty good argument. The trial court, not surprisingly, being a trial court, didn't even mention that argument and just dismiss the claim.

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So dismiss two out of our three claims. And so we only had the gross negligence. And of course, gross negligence in Colorado, it's not quite an intentional standard. You don't have to show intentional acts, but it's pretty darn close, willful, wanton, reckless disregard. It's pretty close to being like that person intentionally messed us up, which nobody's going to say that this lift attendant saw Annie not get on the lift, thought about it and didn't press the button. It was he just wasn't paying attention or wasn't trained adequately. So we lost those two claims. But in Colorado, there's a interlocutory appeal mechanism called a Rule 21 where it's a direct appeal to the Colorado Supreme Court on an issue that presents an important question that needs to be answered, but also is going to impact this case going forward. It wouldn't make sense for us to go through the case on a gross negligence theory only to then go to the Supreme Court, have them reinstate our negligence per se theory, and then come all the way back.

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(00:31:54):

So we appealed to the Colorado Supreme Court and took a while, had oral arguments, and one of the justices asked a really good question, followed up by a really bad question from another justice, I think it was Gabriel, who said something to the effect of, so let me get this straight veil attorney. You're telling me that the Colorado legislature says you have these obligations and duties under the law, but you can just have somebody sign those away. Something doesn't sit right about that. I mean, he said that, and we're like, good point justice. And then on the other end, I think it was Justice Hart, who was like, wait, so does somebody need to buy a lift ticket to be on the mountain? And the veil attorney, who at that point, Wheeler T Trig was being supplemented by Brian Cave, so we had Brian Caven Wheeler Trig on the appeal, and the attorney goes, well, not technically.

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(00:32:43):

And she's like, well, what do you mean? They're like, well, somebody can just hike up the mountain and be on the slopes without a ski lift, without a ski ticket, but if they want to use our facilities, are chair lifts, any of the things, yes, they need to buy a ticket. And then justice as hard is questioning Bruce. And she goes, well, what's the big deal? Even if we don't reinstate your negligence per se claim, you still have a gross negligence claim. So what's your problem? And we're like, because that's not the law lady. And that's such a higher standard to prove. And with negligence, per se, the antsy standard say you have to do X by not doing X, that's negligence, right? And so it's a much cleaner claim. So Supreme Court agreed with us on the negligence per se claim, did not agree with us on the highest degree of care claim.

‍

(00:33:26):

Still can say that can be waived under those traditional factors. But it was interesting because not only were we up against Brian Cave and Wheeler Trigg on the appeal, the National Association of Ski Areas filed an amicus brief. And then it was like all of the recreation groups in Colorado filed amicus briefs, river Outfitters, mountaineers, all of them saying, Supreme Court, Supreme Court, if you allow this negligence per se claim to go forward, litigation will explode. People will not come to these ski resorts anymore because ticket prices will increase so much. And look, if parents want to enjoy the benefit of skiing, of doing these things, well then they get assigned a waiver to not sue us. One thing that's really interesting is Bruce and I handled the Kelly Huber case a handful of years ago where a mom and two daughters were up at Ski Granby Ranch, smaller ski resort, and they're on the lift, lift malfunctions, and it starts swinging back and forth, throws the three of them off the lift.

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(00:34:30):

Mom positions herself under one of her daughters to basically have daughter fall on top of her. When that happens, she ruptures her aorta and mom dies. That exculpatory clause on that ticket that they signed did not explicitly talk about that you waive any claim when you ride a chairlift because it's been pretty well established that that's separate. Well after that case, all of these highfalutin lawyers from Vail and other ski resorts, they put together these exculpatory clauses and releases that are five pages long 0.2 print that really, I mean, at the end of the day, it's no matter what happens on this ski resort, you cannot sue us. Period. Hard stop. Our position at the Supreme Court really was, look, yeah, there are inherent risks of skiing. Those are defined in the Ski safety Act. Skiing is not a completely safe sport. You can hit a tree, you can hit somebody else that comes with a territory, but when you get on a chairlift, you have every right to expect that lift at attendant's paying attention because you can't do anything about it, right?

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(00:35:32):

You can't press this up, and all you can do is scream and yell, and you are, like I said, seeding your safety to them. So successful in the Supreme Court, and Alicia alluded to, we were lucky enough because of that, and obviously, right, because the exculpatory clause contract exception is going to apply to any type of waiver case that we have here on out. So it's not just specifically the ski cases, it's any of 'em. And really, this was the first time, and as you can imagine, look, Colorado ski industry, it's a big industry. Vail is a multi-billion dollar corporation that have lobbyists and every resource you could possibly imagine. And this was kind of the first time that there's this little kind of crack in the armor to be able to sue them for something that happened on their mountain. And so it was kind of a really, I think a first impression type of case.

‍

(00:36:21):

And so we took it from there and had to try the case in August. And so our claims were gross negligence and negligence per se. What was interesting too though, is they had, of course, the ANSI standards, they're written by the ski industry. So there's kind of some wiggle room and judgment as to what they can do. And it's not necessarily, if this happens, then you must do X. If this happens, you can or should do. X is kind of the standard. But Crested Butte also trains all of its employees with much more specific duties, right? Saying, if X happens, you must do Y. Well, Vail and Crested Butte argued our practices and our training, that doesn't set the standard. Those are our internal policies. And what sets the standard are these ANSI statutes, and we can readily satisfy those antsy statutes. Well, we found essentially a sentence buried within one of those ANSI statutes that made the argument that the ANSI statutes incorporate the training and internal policies of the ski resort, which then must be followed and crushed De Butte and Vail went apoplectic.

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(00:37:33):

They went nuts. And besides moving for a directed verdict on the claim, basically we said, look, there are only certain bodies that can make rules just because the antsy says this and it's been adopted, that doesn't mean the Colorado legislature really incorporates those rules. They're not a rulemaking authority. They can't do that. And we had this big discussion with the court, and I argued the directed verdict, and the judge said, so Mr. Aleinikoff, if we hold that veil and Crested Butte or any ski resort can be negligent for not following their own policies and procedures, why would they have policies and procedures? What would be the incentive for them to adopt it? I didn't have enough time to think about it as I probably would've. My initial response was, money, money and safety. But money comes with safety, and it's like, well, of course you can supplement the ANS standards because that's how you train your attendance and lift operators to make sure bad things don't happen.

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(00:38:28):

Because when bad things happen, people ain't going to want to come to ski here and then you are going to lose money. So the judge bought it, bought our argument, and so we were able to incorporate their violations of their own internal policies and procedures into this bigger antsy argument, which was also really important because Ansy talks about training also of the lift at attendants. And so we were able to use a lot of these documents as, yes, they were trained, their training was, this is really funny. They get this handbook, they watch a PowerPoint, and then they have a group session where all the lefties sit around in a circle and have a quiz. That's an open book quiz. And that's the training, right? There's no hands-on stuff, there's no practicing. What happens if somebody doesn't get on a chairlift and then they have a quiz and it's like a group quiz where they're all there together. And again, the big issue in this case is when should a chairlift be stopped? And there's like 10 different pages in their policies, PowerPoint slides that must be stopped. Must must when there's an unseated rider or when anybody requests you to do so.

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Alicia Campbell (00:39:32):

Makes sense.

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Brian Aleinikoff (00:39:32):

Alright, makes sense. So in this multiple choice quiz, the attendant who should have been paying attention the option it was multiple choice, which of the following require a lift attendant to stop the lift when somebody is really tall, when somebody asks, when there's an unseated rider when the phone rings, and this bozo picked when the phone rings and when somebody's really tall. So the two incorrect answers, four, the biggest thing that matters in this case. And so we had the quiz, we showed it to the jury, but one of the things that was so interesting about that, and I will get to this, but in terms of the data that we got from you guys was when you talk to a lot of folks in Colorado and outside, when you just say lift attendant, what do you think of when you hear the term lift attendant?

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(00:40:19):

Well, they think of a lift E who's a stoner, who's just up on the mountain making 15 bucks an hour so that they get a free ski pass, and that's it. That there's seasonal workers who are there to ski. Aaron White, the young man who was operating this lift, he didn't really meet that he was a marine, he wasn't college educated, but had some high school education, was a relatively well put together, smart enough young man that it quickly became clear, especially after running the research that we're not going to be able to make him into the bad, stupid, careless, stoner lift that we really want him to. And so with that research, that was one of the big things that got us changing the focus from what he did on that day versus the tools that he was given through the training and education and what he was or not given to succeed.

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(00:41:16):

And then so we set it up more as veil through Crested Butte don't train these people adequately. They don't run these live simulations drills. And so you get what you pay for. We had the pay stubs, they pay these guys 15 bucks an hour, and they're asking them to run this enormous multimillion machine that hundreds, if not thousands of people are riding every day that bad things can happen. And that's I think what the jury really latched onto. And it's kind of funny because this case was filed in Broomfield County because that's where Vail is headquartered, right? They've got the giant building out in Interlochen, big Vail Resorts on it. And so they moved in limine and everybody agreed that Veil owned Crested Butte. It was all over their training documents, all over the stuff. They moved in limine to prevent us from saying veil.

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(00:42:00):

And because they know that, I think especially in Colorado now more than prior, veil's got a bad rap. They're really seen as this evil empire of skiing. There was all this really juicy, interesting stuff last year about, I think CEO and COO got ousted by the board just because there was a huge strike at one of their resorts in Utah and they had a bad name. And their CEO after she got fired, pulled in, I think about 16 million bucks last year. And a lift ticket to just go ski at Vail is absurd these days. I mean hundreds and hundreds and hundreds of dollars. And the judge was like, I'm sorry, you want me to do what with this? And because it's on a caption, you go outside the courtroom, it's like Vail Corporate, it's like Annie Miller versus Vail Corporation, DBA, Crescent Butte. And he is like, I hard No on that one, guys, you didn't have to say that Vail is a big bad corporation that is just interested in making money. People knew that, right? And so I think that was helpful for sure, just to, people don't love Vail because it's easy not to.

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Alicia Campbell (00:43:02):

Yeah, it is easy not to. And they've gotten so big so quickly. I mean, I just know that from living there, but,

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Brian Aleinikoff (00:43:08):

And we went out to Crested Butte and did a site inspection and stuff, and you talked to the locals and they're really worried because Crested Butte, I mean, a lot of the charm is the fact that it's off the beaten path, right? Yes. Not Breckenridge or Vail, and it doesn't have a North Face and a Patagonia and a on every corner. It's a local, and they're really nervous that as Veil comes in, it's going to push the locals out.

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Alicia Campbell (00:43:35):

That's interesting.

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Brian Aleinikoff (00:43:36):

Yeah. We see how that all plays out for sure.

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Alicia Campbell (00:43:38):

I mean, it's not really mean Crested butt's not on the beaten path because everybody, and I think that's why the Denver airport, which is right there on 70, it's just a straight shot up 70, and you hit all of 'em, winter Park, all of it. But Crested Butte, Telluride, a lot of those are just, they take a little more commitment to get to. So the idea that Veil would get in there, and I think it's crazy too, to listen to their arguments. One, you can't say veil. It's like, but you are the owner, this absurd, no special rules, please. And then two, to say, well, we don't have to follow the ansi, or we don't even have to have policies and procedures. We wouldn't have to do that. While they're also going to say, well, skiing is inherently dangerous. I mean, that's some shit.

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Brian Aleinikoff (00:44:23):

And that was their biggest argument. And I think from what we saw in looking at you and your research, and again, just talking to people, it's dangerous. Everybody you talk to, nobody will ever say that there are no risks to skiing. I mean, that was in their opening. Every witness in their closing, everybody understands and accepts the fact that skiing is dangerous. And no matter what you do, you can take out every single risk in skiing. It is an outdoor sport. You go fast, you're going down snow on some stupid little planks. It is dangerous and risky. And the response is, yeah, but there's also parts of skiing that should not be dangerous and risky, like riding a chairlift. I think that argument skiing is dangerous. It's risky. And getting back to what I said about earlier about Annie paralyzed from the nipple line down permanently, obviously the rest of her life, she is doing amazing.

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(00:45:16):

She is a now junior at the University of Tulsa, has lived independently in an apartment by herself, is a double major in music and psychology, and was literally the poster child for Craig Rehab Hospital in Denver. She was on the front cover of the Craig 2024 annual report. And so they're like, yeah, she's going to live in a wheelchair, but she's going to be able to do anything she wants to do because she is amazing. Their life care planner and vocational expert actually got up there and testified that she had absolutely zero loss in future employment opportunity, employability, because she's so smart and so willing to do anything she wants and people, and everybody knows if you're in a wheelchair, your employee's going to accommodate that and they're going to treat you like everybody else and talk about some bullshit. And so we had to lean into that too, because she is amazing, and she is going to, and the jury liked that, right?

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(00:46:15):

And no jury wants to hear this young woman turtle and say, shit, my life is ruined. I'm never going to try to do anything. She rolled with it and is no pun intended, and will be in a wheelchair for the rest of her life. But she will do great things. There's zero down in anybody's mind. Annie's mom is on the stand, and I'm questioning her, and we're kind of at the end, and I go through, she's been in the courtroom the whole time, and I say, Ms. Miller, you've heard a lot of questioning about Annie and blah, blah, blah, and what's it like to be the mom sitting in the back of the courtroom hearing people say that Annie is going to be just fine and she's going to be able to do anything that she wants in her life. Holly pauses for a second and goes, Brian, that's what people who can walk say,

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Alicia Campbell (00:47:01):

Oh my God,

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Brian Aleinikoff (00:47:02):

Fucking right.

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Alicia Campbell (00:47:03):

Oh my God.

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Brian Aleinikoff (00:47:03):

Good answer. No further questions, your honor. Defense didn't ask her a question, so it was powerful stuff. The jury loved her and they wanted to help her. And not surprisingly, but they really, I mean, they took the position of, first of all, they hired this life care planner, I think said her future medical needs were going to be 2 million bucks as a 16-year-old when she had already incurred eight bucks in past medical expenses from everything. And then they walk this fine line of saying, well, if she's injured, she's not that injured, so don't give her very much money. And I think the jury was like, that is

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Alicia Campbell (00:47:40):

Not credible.

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Brian Aleinikoff (00:47:41):

Getting back to the other thing I was talking about, the helmet. We talked to the jury afterwards and talked about their experts. And so they hired an expert, Crested Butte did engineer to say the only way that Annie could have sustained the injuries that she did was by landing on her head. Then that's important for several reasons. One, it's because you can land on your head two feet off the ground and break your neck. And she wasn't wearing a helmet, and had she been wearing a helmet and landed on her head, well, that would've probably made a difference. Not a single person testified has ever testified, no documentation anywhere in the entire world that this young woman landed on her head. Every witness who sought, including the dopey attendance says she landed on her feet. But that was his foundational hypothesis as she landed on her head.

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(00:48:30):

And then he got paid $200,000 to come into trial and say that. And the jury was just like, give me a fucking break. You're telling me that this young woman dropped 30, first of all, it was hanging like this, flipped over, felt 20 some feet on her head and didn't die. Okay? And by the way, how much are you getting paid to come here and say this nonsense? And by the way, I think we asked Doctor, can you point to a single piece of evidence anywhere in the history of this case saying that Annie landed on her head, well, shut up. No. Well, somebody said she landed on her side, which can be interpreted as landing on her head. And, alright, well, so the ER doctor who saw the whole thing, what did he say? The people who were on the lift with her, what did they say?

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(00:49:21):

The Lyft attendant who saw the whole thing, what did he say? And so it was just, that was their, because I think without that, I don't think they would've been able to get in the fact that she wasn't wearing a helmet, but they made it relevant with this total bullshit expert. And that's hard because especially for locals, I think in Colorado now, everybody wears a helmet. You go up skiing and if you don't wear a helmet, you're like, oh, you must not be from Colorado. You don't know what the hell you're doing and you're judged, right? That's the kind of pejorative people who come from out of state who you skiing jeans and don't really know what they're doing.

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Alicia Campbell (00:49:58):

It's not wearing a seatbelt for a lot of people. It's not wearing a seatbelt.

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Brian Aleinikoff (00:50:03):

And that was going to be the analysis that's not admissible in Colorado, the seatbelt laws, I think most states. But because of the way that they framed it, they argued that it wasn't admissible. I'm sorry, that would be admissible because of they said it would've made a difference, I think even though it's totally nonsensical, which I think at the end of the day, I think that, and arguing that she wasn't injured enough to affect her employability, I think that just kicked them, and that just stemmed their credibility. You didn't have to go there. I kind of understood why they went there, but maybe a step too far.

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Alicia Campbell (00:50:36):

Yeah, it's really interesting. Nick, do you know what the win rate was on this case when we ran it?

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Brian Aleinikoff (00:50:41):

I do. It wasn't very high.

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Alicia Campbell (00:50:42):

No, no.

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Brian Aleinikoff (00:50:44):

Yeah, it was like a 50 50, wasn't it? Coin flip.

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Alicia Campbell (00:50:47):

Yeah. And what came out in the data, I remember because you guys had won Case of the year in Colorado, I remember being nervous running it because it was funny because at the time here when we were running, it was like July, we brought home with us. When we came home to the United States, we had three Spaniards with us Spanish boys. So I had July with five teenage boys under 16 at my house. But we were talking about this case in the car, and they ski here in Spain, obviously up in the Pyrenees and stuff. And so they had a lot of interesting questions like, well, wait a minute. So the machine didn't automatically stop because here would automatically stop. It didn't have a bar that went down so that even if you slip a little bit with your butt, you're able to write yourself.

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(00:51:29):

You have a bar that comes down, and if that doesn't latch, then the machine stops. So they were going through that whole analysis, and I was like, oh, shit, because I don't ski. So I'm like, wow. But then they asked the critical question, they're like, well, was she wearing a helmet? And I was like, no, she wasn't wearing a helmet. And so when we got the results back and I saw the win rate, I was like, oh man, how am I going to send this to Brian and Bruce? Because the criticism was like, Hey, what kind of dad and daughter? And if your dad is this skiing kind of guy, what are you doing? And you're from Oklahoma, and we over sampled Coloradans. So there was this idea of like, oh, so these are out of towners who fancy themselves. Skiers who came on in went up into Crested Butte, so they weren't on 70, but still they're skiing without helmets and she doesn't know how to sit down on a chairlift. And so when we got the results back, I was kind of like, oh no.

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Brian Aleinikoff (00:52:22):

Yeah. And I say at that same time, I always like to talk with people who aren't lawyers about some of these cases. And I remember talking to a buddy mine, who I've known forever. He's not a particularly conservative guy. And I tell him, and he goes, she doesn't sit down, doesn't stop. He goes, why is that anybody else's problem? That's her problem. I was like, oh, right. But that's the eyeopening thing. And then with that, that I didn't appreciate was their argument. The defense's argument was this Lyft attendant, he was paying attention. He saw her sit down and then it was sometime after she sat down as that thing was going up the line that she slipped out and can't blame anybody but her for that. And the Lyft attendant did his job. He saw her sit down and it was sometime after that that she slipped off.

‍

(00:53:09):

And the entire time as we're working up this case, I'm like, that is biggest load of bullshit I have ever heard. That doesn't make any sense. But I was too deep in the weeds I think to really see that that was a, I mean between, and then you couple that with the fact that this wasn't just a stoner idiot not paying attention, but they really played up the former Marine, which na leading. But you couple that together and it's a lot. Then you're essentially asking them to infer that this guy was intentionally indifferent. He saw her sit down and didn't do anything.

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Alicia Campbell (00:53:43):

Yeah, I remember us going back and forth and having calls and you're like, wait till I send you the video of this guy. I remember watching it and being like, I mean I don't like him. But then we got the results back and we were like, people don't have a problem with him at all. So now you're right. Now you're talking about an intentional kind of act as opposed to him just not paying attention.

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Brian Aleinikoff (00:54:04):

Exactly. And it was also interesting and with that we had thought about in lieu of calling him live to testify, playing his depo because Rule 30 or 32 in Colorado, whatever, it's pretty liberal on the use of a party's deposition. And we've been allowed in the past to play cut up clips of the defendant's deposition and because we were a little bit nervous of how he would try to we along to some of the admissions that we thought were really good admissions from that depo. But after sending it to you guys and hearing people's thoughts on it and then talk to some other folks who are like, no, that is not going to work. Absolutely not. And I told Alicia this, it took a little bit of pressure on some of the trial folks to step away from that and say, we're going to be asking for 20 some million dollars.

‍

(00:54:49):

We can't put the primary defendant on by deposition video. That's just not going to work. There's just too much there that we need to get from him. And it was interesting because at trial, initial testimony of his is going All right and then there's a lunch break and he comes back and he folds it was so, I dunno what had happened, but just so much different after this break and there's no way we win that case. I am pretty darn confident if we play his video depo because he came across as this. I did my job, I did what I was asked to do and I'm sorry, but you can't blame me my training or Cresta Butte for this young woman not knowing what the hell she's doing when she goes to ski. That's a her problem, not an US problem. Yeah. But no, I mean after I, sure I took that everywhere.

‍

(00:55:37):

I'm sure I have it. The data report on it. But then the other interesting that was so helpful with was defense hired an expert who was on the ANSI B 77 committee. He was part of the group that wrote the rules on what we are saying Crested Butte did wrong. And of course he writes this, Crested Butte and Vail are gold stars. They don't do anything wrong. They train their lift attendance better than anybody in the world. And no, of course they didn't violate Nancy. And I know I wrote those standards and not surprisingly the focus group came back is he's a big deal, right? They're going to believe what he says. He's the dude on the committee who wrote these. So we always go deep in our research on defense experts and stuff, but we went nuclear on this. I mean, I had associates listening to every single podcast that this dude had ever given.

‍

(00:56:29):

I want any nugget about what he says about Veil and Veil Corporation. And we found good stuff about how he admires Veil and they're the best ski corporation out there. But then we found this was great. We found that it turned out that his father-in-law was also on the ANSI committee. We're like, all right, that's a little bit unusual. So we do some digging and find this small town, middle of nowhere newspaper would interviewed father-in-law who was quoted as saying something to the effect of my role at this stage in my professional life is to basically appoint and get the next generation of skiers onto the ANSY committee. And then lo and behold, their expert, Brian Heon gets appointed to an committee like six months later. And so it was like, all right, that's a little bit better than just coincidence, don't you think? And so we got some just really good juicy stuff on him for that.

‍

(00:57:30):

Funny thing was it felt a little bush league at the time, but the jury liked it. So I'm going through his report and it's just got, his report is full of typos, doesn't spell reasonable correctly, doesn't spell operator correctly, like hundreds and hundreds of typos. So I had my paralegal count how many typos he had in his 12 page report, and it was several hundred. I was like, so Mr. Heon, you got paid how many thousands of dollars for this report here did just spell check it? I know that's kind of a weird question, but did you run spell check when you did this on Word? I don't know why. Said Well, I was confused because when I was looking at it, there's all these red squiggly lines under every other word. And so I was just wondering if you knew that your 12 page report contained over 195 spelling errors, that's about 17 or 18 per page.

‍

(00:58:18):

Do you think that that's an appropriate attention to detail on a case that this much at stake? And it doesn't matter what he said, right? He just fumbled around a little bit. And again, that doesn't matter the substance of the paper, but we talked to jurors and they're like, yeah, we just kind of doubt made us doubt his attention to detail. If he can't spell ski area operator correctly, well then why should we believe some of the other things that he's saying? I was like, okay, I'll remember that going forward. Look at those little things.

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Alicia Campbell (00:58:45):

Yeah, you used the report. We get people on all the time who are like, I got this report and I have a great win rate. So then I just honed in my ask, you're a little different because you basically use the report to make the case better.

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Brian Aleinikoff (00:58:59):

Oh, 100%. I mean, we dug into that and really reframed, especially on focusing on who the bad actor was and really trying to figure out a way to show that it's got to be more than just Brian, I'm sorry, Aaron White sitting there at that time. And so when I was at Robins, I was lucky enough to go with Kathleen and Brandon out to a session with this guy named J, the trial consultant out in Cowen, California in Napa, who's got a great setup if you ever get the chance. But his whole thing is he's not a lawyer and his whole thing is strategizing and persuasive reasoning. And he has this thing that he calls the purple box and to him, the purple box is where the defendant wants you to fight. So in this case, the purple box would be he wasn't paying attention at that moment when she didn't get on the lift and Rodney Juice's whole thing is you got to back chain the argument so that it never should have gotten to the purple box in the first place.

‍

(00:59:52):

Right? There should have been safeguards training education, so that on that date on March 16th, Aaron White was given the tools training and education to be able to not be an idiot. But because previously to get to that point, he wasn't trained appropriately, he wasn't supervised appropriately, he wasn't given those tools from this multi gajillion dollar corporation. It's less on what he's doing in that moment because when you're thinking of it, it's what Crested Butte argued was in their closing, this all comes down to seconds. This entire case boils down to a matter of seconds. And I think if we made that argument that either he was paying attention or he wasn't paying attention, and that's it, I think we lose that because he came across as pretty darn credible. And you get back to the sort of anti reptile of nobody's going to want to believe that they can go to one of these ski resorts, pay hundreds and hundreds of dollars to ski and get on this lift and have somebody not paying attention.

‍

(01:00:52):

Right? That's a scary freaking thought. So they want to believe that these lift operators are trained appropriately, but sometimes they're not. And that's what we really had to focus in on and convince the jury of, which again, I think it's like any of our med mal cases, anytime we can put the blame on a hospital corporation, a hospital system for not educating, training, implementing policies and procedures, I mean infinitely easier than saying a doctor or nurse in a given instant made a negligent judgment call, right? Because they're nurses and doctors, they're really, really smart and they can make a bad judgment call. That's not negligence. But if a hospital has these systems in place or should have system in place or training or policies and procedures, well better than I would imagine, it's much easier for a jury to tag a corporation, a defendant with an LLC or something like that after the name than an MD or an RN or an individual.

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(01:01:47):

I'll tell you one other thing that was interesting that really just kind of it ignited us, I think for this trial was after we got the Supreme Court ruling and we got back in, we got an email from the defense saying, Hey, do you want to go to mediation? Yeah, hell yeah. This is pretty good sign that they see their exposure, the great young woman, big damages, go to mediation and take all the time to prepare it, get a mediator who we really like and spend the better part of an entire day sitting in a mediation where they $250,000, which on one level it was certainly insulting, but on the other level it was like, good, that makes our decision easy. If they had offered several million bucks, that's something that you had to think about of and because I think we had the research at that point, it's like, alright, do we flip the coin where it's a 50 50 shot of maybe we get 20, 30, $40 million, but maybe we get zero and the cost shifting laws in Colorado suck.

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(01:02:50):

She would've been dinged for hundreds of thousands of dollars of costs. How do we gone and lost? But you offer 200 grand, there's no decision there, right? It's full speed ahead. And then it was a long trail from there because they filed multiple motions for summary judgment on all the claims. They filed 17 or 18 motions in limine. They filed motions to exclude each of our experts individually and absent a couple little things here and there. We prevailed on all those motions. And again, as we were getting ready for trial, we expected a call and email, Hey, do you want to reengage in settlement? Absolutely nothing. After we put our case on, we thought there'd be something absolutely nothing. I'm pretty darn confident that they could have gotten away with a settlement that was significantly lower than all this. But I guess I don't know your veil, right? And I don't know if you don't want to, you settle this one. What does that mean for future cases? They've had all these different layers of coverage and I'm sure of the red tape of going from one to the other to the other. But I'll tell you, it was exceptionally entertaining watching the A IG senior claims adjuster in the back of the courtroom, sweat it out every day.

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Alicia Campbell (01:04:05):

What was your verdict? We haven't even said it.

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Brian Aleinikoff (01:04:08):

Yeah, so it was 21.5. I'm almost positive. Let me, so it was 10. They found that Crested Butte violated the ANSI standards, did not find that they were grossly negligent, which is important given what this all kind of backed up to. But this is also interesting. They did put 25% of the fault on Annie had not having anything to do with the helmet, but for not getting on the chairlift originally. Right. And that's kind of hard. Nobody had any reason for why she didn't get on the chairlift, but for the fact that she just didn't get on the chairlift. So Colorado, in an injury case like this, it's economic, non-economic and then physical impairment. What's interesting is economic and physical impairment are not capped, but non-economic damages are capped. Jury obviously doesn't know that gave her, they gave Annie 10.55 million for economic losses past and future. They gave her 5.275 million for non-economic damages and 5.275 for physical impairment and disfigurement. And it's interesting that 5.275 for non economics, that gets crammed down into the cap. There are no post-trial motions and there will be no appeals on the verdict that

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Alicia Campbell (01:05:29):

That's great news.

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Brian Aleinikoff (01:05:30):

We are fighting about some little things here and there, but no, that's it. Hopefully no more wheeler trig, Brian cave churn in the billable clock for this one.

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Alicia Campbell (01:05:40):

That's amazing. Well, it's a wonderful result, especially given how the case tested. I couldn't believe it when I caught wind that this is what happened. I was like, what kind of magic did you work? So I was always, so Brian and I debriefed after it and I was glad to hear that the report was helpful because it's crazy because the other person I talked to about this is Joey Gutierrez where they had a case in Vegas. And so it was really crazy to hear your verdict because that was another one where it was a coin toss a little less. They took the report, really went at it, and you know what? They got $21 million. So it's kind of crazy how this has worked out, but I love it.

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Brian Aleinikoff (01:06:17):

The other thing that I mentioned to you, Alicia, that was so helpful about the process was not only obviously the data and the information we got from the report itself, but putting together the defense script, really digging into what are they going to say? What is their best case? Because as we talked about and we've talked about before, the product that you get is only going to be as good as the information that you feed it. And if you give it garbage, it's going to spit out garbage. And so spending a lot of time really digging in deep into what are they going to say, how are they going to say it? And then, okay, now we know what they're going to say. We thought we knew what we were going to say. How are we going to pivot to specifically addressing those things? Which is tough because at that point experts have been disclosed.

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(01:07:00):

You're looking down the barrel of a trial, and so you just kind of got to make the judgment calls. But even too with jury selection, it's so helpful. We get 45 minutes in Colorado if we're lucky on jury selection. We got a questionnaire beforehand that made it a little bit easier, not much. But in Colorado, the way we think about it is it's more jury deselection than selection. And so you're asking people things just to kind of expose the really bad defense people and get them out of there. But it was tough because we didn't really know, do we want people who have skied before? Do we want people who have never skied before? Do we want people who have a place in the mountain or what? And we ended up having on our jury, it was kind of a mix because for the people who had skied before it split, right?

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(01:07:50):

Because some of them are like, oh shit, of course it's dangerous. And if this person doesn't know how to get on a lift, they shouldn't be on the lift. Just as many people who are like, yeah, if like me, I've skied my entire life. I was up skiing last year and I fell getting off a lift. I don't know what happened. My tips crossed and I just went right down to that end. People know that even if you are an exceptionally experienced expert skier, you can still fall. You can still have a hard time getting on and off a lift. And that's why it's so important that these lift operators and attendance are paying close attention. But then same thing with the people who hadn't skied before. It's like, well, why haven't you skied before? And it's like, well, because it's dangerous and I don't want to falling from a chairlift or it's like because it's cold and it's expensive and Vail charges way too much money for me to drag my ass up there and be wet and cold all day.

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(01:08:40):

But it was a pretty young jury. One of the jurors, she ended up being great, but it was all that she could do to stay awake during the trial. I mean, it was like nonstop head nods because the judge, this courthouse is the only courthouse I've ever been in that doesn't let you bring in coffee. You're not allowed to bring in a coffee cup, a mug or anything. They had some experience where some fricking criminal tried to hide a 22 in his Yeti, and because you put that on top of the x-ray and it doesn't go in, and so no coffee, no soda, no anything. It was August. It was hot as hell in this kind of little courtroom with no windows. And the judge actually say this now, everyone always does, but he was a defense lawyer. He works for Cooley for a long, long time.

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(01:09:28):

We had CTLA. I put out something on the list of, hey, who knows? Jeff Smith tried a case in front of him, give me a call. And I got responses from a couple of people that he is the worst. We have never been in front of a more defense oriented judge. He just is not fair. And it was the exact opposite. He was a thoughtful caring judge. He spent time outside of trial doing his own research, really thinking about these issues. And again, had the trial gone the other way. I probably wouldn't be saying this, but he was a good, smart, committed judge. And I think absolutely, not to pat myself on the back at all, but I think he said at the end of the trial, he is like, look, I need to tell you guys that you did a great job because it's not every day in these Broomfield County Colorado trials that I see lawyers who are worth their stuff and are doing a good job. So it's like I like to point it out when they're good lawyering. So good job. And so there's nothing magical about it, but you can kind of guess the types of cases that he generally sees. And this was a two week trial that had been being worked on nonstop for two years and we spent enormous amount of time and money on this. So I think he appreciated that, which was helpful and good too.

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Alicia Campbell (01:10:38):

That's really wonderful. We've been talking for a long time now, so this is a great place to wrap up. It's been so fascinating listening to everything you guys considered and did throughout this trial and congratulations because it's really amazing result for what you tested out to be at first.

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Brian Aleinikoff (01:10:56):

And I'll tell you my last thing is, and I always tell this to people when I talk about this case, if you have a minute, just Google, put in Google Annie Miller Craig Hospital because Craig Hospital, which is, I'm sure you know, the world renowned Craig Rehab, they did a video on her and it was like Meet Extraordinary was the title, but it went through some of her time there and just showed her figuring out how to drive a car with the hand paddles, how to work a chair. They did music therapy for her, which was because she was a musician, learning how to play the keyboard again was such a huge part of her therapy. So just like I said, she's amazing. Take a look just so you kind of see the type of person that we were lucky enough to represent.

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Alicia Campbell (01:11:32):

Oh, that's very nice wonder, A wonderful way to end it. For sure.

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Brian Aleinikoff (01:11:37):

Well, thank you Brian so much. Thank all of you for listening and we'll be back soon with more podcasts.

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Nick Schweitzer (01:11:46):

Thank you for listening to The Fred Files. If you found value in today's discussion, please subscribe and share this episode with your colleagues. To explore how Fred can transform your case preparation, visit us at focuswithfred.com. Produced and powered by LawPods.