Have you ever thought our industry exaggerates those so-called nuclear verdicts? Carriers feel picked on by trial lawyers who are just trying to do the best for their clients, some of whom have suffered gruesome, debilitating injuries, right?
Well, maybe sometimes.
But then there’s the case of Blake vs. Werner Industries and a colossal $90-million verdict. You’ve probably heard or read about it.
On Nov. 30, 2014, Werner drivers Jeff Ackerman and Shiraz Ali left Dallas a little before noon under a load for California. It was a Tuesday, the day before New Year’s Eve. Ackerman was a driver trainer, Ali the trainee.
They were scheduled to deliver the next day in Kettleman City, in California’s central valley, roughly an hour and fifteen minutes north of Bakersfield. With more than 1,500 miles to cover, they had no time to waste.
The sky in Dallas that day was cloudy, the temperature about 40 degrees. But according to the National Weather Service, they could encounter freezing rain that afternoon along their route, Interstate 20. “Hopefully, we can make it through before it gets too bad,” Akerman told Ali, according to one version of events.
Ackerman would sleep for the first leg of the trip so he would have the hours available to drive through that night. Though still a trainee in Werner’s program, Ali had already earned his CDL, so he was behind the wheel as they rolled out of Dallas heading west on I-20.
Five hours or so later as they approached Odessa, Texas, Ali rode into the weather they had hoped to outrun. Some smaller vehicles had spun out on patches of black ice.
Ali slowed to 45 mph on the 65-mph highway. He maintained traction and control and kept going.
That afternoon, Jennifer Blake and her three children, 14-year-old Nathan, 12-year-old Brianna and 7-year-old Zachary, were on their way from a visit to friends in Pecos, Texas, to their home in Midland, Texas. The family members were riding in a Ford F-350 pickup that belonged to their friend Trey Salinas, who was at the wheel. They were traveling east on I-20 into the same bad weather.
Along that portion of I-20, the eastbound and westbound lanes are separated by a 45-foot-wide grass median. There is no Jersey wall or other physical barrier. So when Trey hit an ice patch and lost control of his 350, spinning onto the median at more than 50 mph, there was nothing to stop him from skidding all the way across and into westbound traffic.
Ali saw the out-of-control pickup heading toward him and braked. But despite a quick response and traction on the roadway, it was too late. The two vehicles crashed violently. The pickup body was nearly torn off, and its roof was crushed onto the passengers.
The crash was horrific.
Jennifer Blake suffered brain damage and lacerations. Nathan suffered a brain injury, too, as well as a collapsed lung and broken bones. Brianna’s injuries were more severe. She suffered a serious brain injury and was permanently paralyzed from the neck down. Worst of all was young Zachary. With catastrophic head injuries and damage to other organs, the 7-year-old held out in the hospital for three days before he finally lost his fight for life.
Faced with the loss of her younger son and a lifetime of 24-hour care for her daughter, a grieving Jennifer Blake needed money. So she found a lawyer, Eric Penn of Jacksonville, Texas. Penn filed suits against Salinas, Ali and Werner. The case against Werner and Ali went to trial in Harris County District Court in Houston.
This is where a tragic story turns bizarre.
A 12-person jury was sworn in on April 6, 2018. The trial lasted six long weeks before the case went to the jury. The jury members deliberated for three full days and on May 21, 2018 delivered their verdict. Civil verdicts need not be unanimous; this one split the jury 10 to 2.
Remember, Ali had been driving well below the speed limit and retained control of the Werner truck before and during the collision. According to Land Line’s coverage of the case, the Texas trooper who investigated the accident, a 17-year veteran, “concluded ‘this is truly an accident,’ Ali ‘didn’t do anything wrong’ and there was nothing Ali ‘could have done to avoid the collision.’ A higher-ranking trooper who approved the report concurred.”
Despite that report and the glaringly obvious fact that it was Salinas who had lost control and crossed the highway median into Ali’s path, the jury decided the terrible crash was largely the fault of Werner and Ali – but mostly of Werner. The Werner truck, the jury concluded, simply should not have been where it was and going as fast as it was going because, well, there was a lot of evidence that seemed to say so. Lots and lots.
The jury held Werner 70% liable, Ali 14% liable and – incredibly – Salinas only 16% liable. Jury members treated the plaintiff’s attorney, Eric Penn, like a legal pied piper, happily following him away from what actually had happened and into a forest of should-haves. Werner should have trained Ali better, Ali should have pulled over and stopped, Ackerman the trainer should have been in the passenger seat instead of the bunk, and more.
Penn did not dispute Werner’s claim that the big carrier, driver Ali and trainer Ackerman had done nothing wrong. Instead, he convinced the jury they had done nothing right – and all with evidence that was at best only marginally related to the accident.
For example, witnesses confirmed that icy patches had appeared on I-20 in some places, particularly on the eastbound side. But no one could attest to ice on the roadway where Ali was driving, at least not when he was driving there.
Some items considered evidence were not related to the accident in any way, like testimony to the effect that it was Werner’s legal department that investigated serious accidents – not its safety department, as is the case in some other companies. This and other such testimony suggested that Werner was somehow a negligent or even a malevolent player, concerned more with financial liability than human life.
So, the jury made its mind-bending decision to hold Werner and Ali liable. And to put the icing on attorney Penn’s victory cake, there was that jury award of $92 million, most of which went to Eric Penn and his squad of lawyers, to the 33 expert witnesses who testified and to a consultant who coached Penn’s team on how best to win over jurors with well-honed story telling. Penn would later turn up in the consultant’s promotional material.
Naturally, Werner appealed the verdict, and in May of last year, a panel of nine judges reviewed the jury’s decision. The panel had the chance to reverse or at least mitigate the jury’s incredible errors. Instead, it overlooked the forest, which was obscured by all those damned trees.
The judges voted 5-4 to uphold the original verdict.
By that point, the case had generated a 4,733-page Court Reporter’s Record, a 5,882-page Clerk’s Record and a monumental 28,657 pages of exhibits and appellate briefs. Penn had all but buried the jury in evidence, much of which served no other purpose than to represent Werner as a cruel, heartless company and Ali as something less than the fully and legally licensed truck driver that he was.
The case was a virtual house of trick mirrors, crafted to keep the jury’s attention away from the awful, desolate heart of the matter – that Salinas and a patch of ice, not Werner or Ali, had clearly caused the terrible accident.
To me, something else became clear. At the opening statements, before any evidence was even presented, jury members saw a broken and bereaved family. It was heart-rending. They wanted very much to help. But how?
They didn’t have to look any farther than the defendant’s table, where they saw the lawyers and representatives of Werner Enterprises, North America’s fourth-largest truckload carrier that bills more than $3 billion a year. When Penn offered evidence that tended to make Werner look bad, the jury was in the mood to listen.
The Texas Legislature took notice of the original jury judgment and realized something was wrong. It passed HB19 as a direct result of the Werner/Blake case. The resulting law, which went into effect on Sept. 1, 2021, changed the way certain cases can be tried.
Now, almost 10 years since the crash, Nathan is 24 and Brianna is 22. Their mom, Salinas and Brianna had another brief moment of fame when they turned up in a video about flooding in Houston during Hurricane Harvey in 2017. They still have not received a big check from Werner, and the case still is not settled.
Werner has taken the case to the Texas Supreme Court, where the Texas Trucking Association, the American Trucking Associations and the U.S. Chamber of Commerce have filed amicus briefs in support of Werner.
Yet another legal decision from yet another Texas court is pending. LL
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