It’s 1962. In Moses Lake, Washington, a ten-year-old boy named Ray Budd splashes water into a bucket of Kaiser-Gypsum joint compound (aka drywall "mud"). Dust fills the air as he mixes the compound into a smooth mud-like texture. Together with his father, Ray applies the mud to the drywall. Later, when it dries, they will sand the hardened mud down to hide the tape lines. More dust will fill the air. They will sweep and vacuum the dust – breathing more of it in during the process. The process will be repeated by Ray and his father, and by workers and do-it-yourself-home-improvers day after day – on construction sites, and in homes – for decades.
The result of the widespread sale and use of products like Kaiser Gypsum’s joint compound has been tragic. The products contain asbestos. Asbestos is lethal; it causes mesothelioma. The disease is brutal, painful, and causes a slow death, as the person’s lungs are filled with fluid. It is excruciating both for the patient and for their loved ones. Many of these deaths could have been avoided. Lawsuits aver that Kaiser Gypsum and similar manufacturing companies knew that asbestos-containing products were deadly for years, if not decades, before the public was ever warned, or the products ever regulated. So, like thousands of other Americans, decades after Ray Budd began working with Kaiser Gypsum’s dry wall compound, he was diagnosed with mesothelioma.
Ray Budd, now 64 years old, lives in Ohio and is terminally ill from mesothelioma. When negotiations with Kaiser Gypsum failed, Budd’s lawyer, Chris Madeksho, brought his lawsuit to Washington State, where Budd’s exposure occurred, to try in state court. Madeksho associated with a local law firm, Weinstein Caggiano. The firm focuses on trying mesothelioma cases. I interviewed Alex Caggiano, named partner and fellow WSAJ EAGLE member. Caggiano, who has only been practicing since 2014, has already had much success at trial. She was part of a team who won an 81-million-dollar mesothelioma verdict pre-COVID. This case, however, was her first jury trial since COVID caused the courts to shut down.
Associating with other attorneys and law firms is something Caggiano and her firm do often. Caggiano says finding the balance necessary to create a successful collaboration can be tricky. She finds that taking a team-first approach is helpful. She says, "Taking on more [work] or sitting back some, depending on what the team needs, helps the work move forward smoothly." In this case, she and Madeksho meshed well by having clearly defined roles. Caggiano’s main focus was on the science. She presented the critical causation witness for three days of testimony and cross-examined the defense causation expert. She also delivered the rebuttal closing. Madeksho was the face of the case providing the plaintiff a voice. He presented and cross-examined all other witnesses, conducted voir dire, and delivered opening and closing statements. Phil Chu, also of Weinstein Caggiano, managed researching and drafting motions during trial, and senior partner Brian Weinstein worked behind the scenes to make sure the team prepared and developed the record properly for appeal.
The trial courtroom was familiar, but the set-up was reconfigured to accommodate COVID-era safety requirements. Socially distanced jurors were in the gallery instead of the jury box. Attorneys wore safety masks throughout the entire trial. Witnesses appeared remotely via video conference. These accommodations were all hurdles the trial team faced while trying to present their case and connect with the jury.
While the setup for the trial was novel and technologically progressive, there was one thing that could not have been more familiar and worn – the defense. From initial negotiations to closing argument, the defenses were predictable – to deny liability, to deflect blame, and to devalue damages.
In closing argument, Madeksho empowered the jury and gave them a road map to a fair verdict. He talked about Budd’s losses carefully, creatively, and with heart. The team had had to be very careful during the entire trial to keep from opening the door to Budd’s past, which included a criminal conviction. During his closing statement, Madeksho could not rely on any simple allusions to a happy and loving family now destroyed by cancer. He had to focus narrowly on Budd’s personal loss. He had to dig deeper and know his client from a different angle to help the jury see him in all of his humanity and to value that humanity. So Madeksho talked about how Budd, who started working at age 10, was finally, after retirement, able to enjoy some fun in his life. How in effect he was able to have the childhood he had missed out on the first go around, because he had started working at such an early age, and how that second childhood – that best part of life – was taken away from him by the defendant when he was diagnosed with mesothelioma at age 62.
Then came the defense closing statement. David Shaw, of Williams Kastner, spent over half of his closing refuting proximate cause using a mix of hard and soft science and bits of history. He walked through the experts’ testimony, denying any scientific association between drywall work and mesothelioma. He recounted a lengthy history of asbestos use from the 1930s forward. He claimed Kaiser had no reason to put a warning on its products because they were in fact not dangerous. It was when he moved on to discuss damages that his closing became particularly callous. In effect, he flat out told the jury, "So what?"
Shaw’s closing was an homage to everything plaintiffs fear jurors think – that jurors will find the corporate defendant more credible, that they will blame plaintiffs for their own injuries through negative attribution, and that they will undervalue the damages through a combination of selfishness and cynicism – as in, "I’m hurt, and no one pays me for my pain." Shaw blamed Budd for failing to avoid exposure. He claimed even if Kaiser had put a warning on its product, Budd would not have heeded it – after all, he had been a smoker for a couple of years.
Then Mr. Shaw went straight for the jurors’ amygdales. He said, "Every day throughout this country millions of men and women undergo surgery … they have terminal illness highlighted by our current situation with COVID. They do it all without compensation. There is no compensation at all. Is Mr. Budd’s situation so different, so different from those who suffer similar disabilities, similar pain, similar restrictions, that an award of that staggering size is justified? I don’t think so."
He went on to ruminate, "we will all die someday."
Caggiano sat watching defense’s closing with a mix of anxiety and anger. By then, nearing the end of trial, she was sick with adrenaline, but when she rose to give her rebuttal closing, she was calm. She was ready to let her belief in her client and her belief in the case do the work. She dismantled the defense in broad strokes, then polarized the case before resting. In doing so, she neutralized any inertia Shaw had created and cleared the path for a judicious verdict. First, she summed up Shaw’s defense by calling it a "throw everything at the wall and see what sticks" defense. She quickly walked through the steps of the defense’s logic, showing it for the misdirection and deflection it was. Next, she compared Budd, a person, to Kaiser Gypsum, a person under the law – "but not a person who can breathe, not a person who can bleed, not a person who can undergo chemotherapy."
Then, she compared the defense’s and Plaintiff’s experts’ contrasting motives. Comparing Kaiser’s expert data – funded by industry in order to keep dangerous products on the market, with Plaintiff’s expert data – funded by the National Institute of Health, whose mission is to protect people’s health. Then she walked through the science again and clarified what the defense had muddied – that poison is deadly, and Kaiser Gypsum’s product was poison.
Lastly, she restored the juror’s ability to do the right thing, the righteous thing, by illuminating the truth inherent in Kaiser’s actions. She told the jurors, "They think you won’t value Ray’s life." And she said, "That’s what they think. That’s what Mr. Shaw just told you. He just told you everyone dies." Then she dismantled that grossly cynical misdirect by clarifying the point: "Everyone does die. But they killed him."
She walked through damages one last time and polarized the case before putting the verdict in the jurors’ hands. The jurors returned a verdict in favor of Ray Budd and found economic damages in an amount of $400,000, and non-economic damages in an amount of $13 million.
Sometimes, a jury trial is the only place an individual flesh and blood human being can hold a corporation accountable for harm. Personal injury lawyers like Alex Caggiano who try wrongful death cases further the cause of justice for all of us and for all of our clients. Caggiano and her team showed that given the opportunity to get [the case] in front of a jury, justice can and will prevail, even in the time of COVID.
Nicole G. Gainey is an EAGLE member who also serves on WSAJ’s Diversity Committee and on the editorial board of the Trial News. She owns her own Seattle law firm, Gainey Law, PLLC, where she focuses on plaintiff’s employment law.
Elden Rosenthal. The Plaintiff Lawyer’s Playbook: Insights and Recommendations on How to Prepare for Success in Settling and Trying Cases.
Trial Guides, LLC (2019). Paperback: 161 pages; 1st edition (2019); $45.00. https://www.trialguides.com/products/the-plaintiff-lawyers-playbook
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Elden Rosenthal is a Pacific Northwest treasure and his Playbook—a succinct yet compassionate beginner’s treatise on the practice of plaintiff’s law—is a bountiful gift to our bar.
Rosenthal is a long-time Portland, Oregon attorney and an avid fly-fisherman. He claims inspiration for The Plaintiffs’ Playbook was derived from two sources, one being The Curtis Creek Manifesto, An Introduction and Guide to Fly Fishing by Sheridan Anderson. In the introduction to his book, Rosenthal states that for him, The Curtis Creek Manifesto was a principle source of guidance into the mysteries of fly fishing, a source that he relied on for many years as he was learning the craft. More experienced attorneys have likely long forgotten that, like fly-fishing, plaintiffs’ law can often be confusing, and the process of working up cases opaque, to newcomers. To the uninitiated, plaintiffs’ attorneys talk and write in a strange, unknown language. Rosenthal’s Playbook not only deciphers the strange language of the law but also illuminates the path of the trial attorney. His Playbook is a concise and carefully crafted map laid out to help the new attorney navigate the often-treacherous path from client selection to trial. I do not know if the Curtis Creek Manifesto helped Rosenthal become a first-rate fly-fisher, but it surely got him headed in the right direction. Likewise, Rosenthal’s Playbook is a first step primer and overview to plaintiffs’ work that will get any new attorney headed in the right direction on the path to becoming a successful plaintiffs’ attorney.
The second, and truly primary, source of inspiration for The Playbook derived from Rosenthal’s last few years of practice. In 2015, he and Bill Gaylord, another successful trial attorney, formed a partnership. The sole function of that partnership was to mentor less-experienced lawyers. During those mentoring years, Rosenthal realized the tremendous advantage he had enjoyed early on in his career by being actively mentored by numerous seasoned trial attorneys. According to the introduction of the Playbook, teaching others reminded Rosenthal of the many lessons and fine points the new attorney must master. Lessons and fine points that others walked him through by example and guidance on a daily basis in the first few years of his journey. Lessons that, he realized while mentoring, are not intuitive or easy to master.
Likely because he wished to someday spend more time fishing and less time mentoring, he committed to sharing that mentoring practice via his Playbook. In this way, Rosenthal imparts his knowledge and experience to the next generation of plaintiffs’ attorneys. Sharing lessons learned during his 47-year career and informed by his years of focusing directly on mentoring new attorneys. His Playbook will help the new attorney conquer the steep learning curve of the first few years of practice in the same way that a good senior partner would—with compassionate understanding of what the new attorney does not yet know and with laser sharp focus on what is important and necessary to successfully resolve the case. Rosenthal’s Playbook is just that—a stand-in for the mentor that every new plaintiffs’ attorney needs but does not necessarily have.
The Playbook is an artful guide. The new attorney will find that Rosenthal has included nothing superfluous. At only 159 pages, Rosenthal’s book is a powerhouse of concisely targeted advice. Illuminating the processes necessary for the competent work-up of the plaintiffs’ case, it focuses on the work that attorneys spend most of their time on—pretrial litigation. But it also briefly covers trial topics—from voir dire to rebuttal argument—just enough to demystify the process.
Clearly the Playbook can be used as a checklist of the basics and of the most important aspects of plaintiffs’ case preparation. The new attorney will also find it refreshingly full of advice on not only what needs to be done; but also, most practically, how to do it. Rosenthal’s years of mentoring clearly informed the guide in this way. His advice is both practical and reassuring in its depth of detail. At times he literally advises the newbie attorney to “use these words.” Similarly, the appendix contains some helpful templates to make common tasks less grueling. The appendix includes retainer agreement language, a model stipulated protective order, a letter to send to the client regarding deposition, and a focus group questionnaire.
Rosenthal is an award-winning trial attorney who racked up numerous accolades over the course of his career. Additionally, Oregon employment law attorneys (and employees) can thank Rosenthal for bringing (and winning) the first Oregon common law wrongful termination in violation of public policy case: Nees v. Hocks, 272 Or. 210 (1975). The Supreme Court in Nees ruled in favor of the plaintiff when she was terminated for serving on jury duty. In 1991, Rosenthal received national attention when he co-counseled with the Southern Poverty Law Center in the landmark case of Seraw v. Metzger. The case tied white supremacist Tom Metzger, a member of the California Ku Klux Klan and who formed and led the White Aryan Resistance (WAR), to the murder of Mulugeta Seraw, a Black college student in Oregon in 1988. The lawsuit which included a $12.5 millon verdict against Metzger bankrupted WAR. In 2006, he represented a fellow attorney who was wrongly detained by the FBI, securing a $2 million settlement and an apology on behalf of his client.
When I spoke with Rosenthal in July, I asked him if he wished he had included anything else in his Playbook. He jokingly replied that he never figured out how to illustrate it to keep it in line with Anderson’s Manifesto. Then, after a moment of contemplation, he answered more grimly. He said that he wished he had included more about working civil rights cases. He added that there are not enough attorneys who focus their practices on civil rights. He seemed to be encouraging attorneys to do so, when he said, “the skills transfer, you just have to learn a new area of law.”
Rosenthal is not quite finished mentoring and teaching. Perhaps he has another book in him? Something like, The Plaintiff Lawyer’s Civil Rights Playbook? I hope so.
Nicole G. Gainey is an EAGLE member who also serves on WSAJ’s Diversity Committee and on the editorial board of the Trial News. She owns her own Seattle law firm – Gainey Law, PLLC—where she focuses on plaintiff’s employment law.
