It was in talking with my girlfriend that I first learned of the revisiting of Mark Jones’ case. I remember the firefighter that fell 15 feet down a pole shaft. I remember that his injuries were severe. I remember that this happened to someone before him, and the city didn’t correct the problem.
When she told me about this revisiting, she seemed a little appalled that someone could get so much money and be faking it. I explained he probably wasn’t faking it, that we were only getting half the story.
It turns out this was, as I guessed, only half the story. I wasn’t there for the jury verdict, but this wasn’t a case about his physical injuries. His physical injuries could be overcome with a pain pump, despite his lung capacity being that of an 80 year old. This was about what happened to Mark’s brain in the fall. The lawyers that represented Mark, Dick Kilpatrick and Todd Gardner, issued a statement deploring this tactic by the insurance companies to taint Mark’s case (of which he has yet to see a penny):
It is disappointing that ten months after the jury’s decision, the City of Seattle, AIG and ACE insurance file a new motion and misrepresent the case to the media before Mark could even respond in court. That is unfair to Mark and to the jury who heard the real facts and decided his case last fall. Mark has not seen a dime of the verdict while the insurers appeal. AIG and ACE’s action seems a thinly veiled attempt to unfairly pressure the trial judge, or prejudice the appeals court judges before they can know the facts of the case, or both. The videos released by the City of Seattle cannot show the full extent of Mark’s injuries, the biggest of which is a permanent brain injury.
Mark Jones was left permanently disabled when he got up to go to the bathroom at 3:00 am at a fire station and fell 15 feet down an unguarded hole onto a concrete floor. A previous firefighter fell down the same unguarded hole at that same station at 3:00 am in 1976.
Mark suffered head injuries, broke nine ribs, had a pierced lung, fractured several vertebrae and had several pelvic fractures, as well as bladder and liver injuries. Mark worked very hard to recover physically and is now able to do most normal activities. Despite his hard work, Mark has the vital lung capacity of an average 80 or 90 year old, and permanent cognitive injuries. The City even had its own neuropsychologist examine and test Mark’s brain function. Then the City blocked that doctor from testifying because he too supported Mark’s case. The cognitive injuries made Mark totally disabled and was why the jury awarded him the substantial verdict.
Mark’s executive functions are badly affected, such as the ability to plan, remember, and follow through. He is impulsive and has impaired judgment, and his choices could physically hurt him or others, like his eight year old son. The brain injury is what made him unable to work and was not even addressed in the City’s video. The City’s conduct and false accusations of fraud undermine justice, misrepresent the truth, and are in very poor taste. The City’s media blitz encourages people to mock someone with a brain injury or disability, which is what people who mock Mark in the video are doing.
The jury had all the facts – including the City of Seattle’s. The jury knew that with his pain pump Mark could physically do most every general activity. The jury heard testimony from multiple doctors and experts who all agreed that Mark was permanently disabled because of the brain injuries on top of his bodily injuries.
A juror wrote after seeing the supposedly shocking surveillance video and put it succinctly – I remember quite clearly why we found the city negligent and for what reasons we determined the amount of the verdict, none of which had anything to do with his ability to play bocce ball.
The old video deposition the City handed over as what Mark claimed at trial was a total falsehood. That video deposition couldn’t have misled any juror – the City chose not to show it or read it to the jury. The video deposition never could have had anything to do with the verdict. To falsely claim the jury was misled by this video deposition the jury never saw speaks to the City’s desperation. The only deception in this case has come from the City and its lawyers.
The greater story is how appallingly the City of Seattle continually honors its firefighters and police officers who put their lives on the line every day – right until the City negligently injures one of them. It then unfairly employs false character assassination to avoid accountability. Mark Jones was an Air Force Veteran, a police officer and then for several years a highly respected Seattle firefighter. He deserved far better than a dishonest media blitz from the City he served so well.
We here at The Amateur Law Professor applaud Mark Jones. In the face of a permanent brain injury, one which has robbed him of who he was, he has found the ability to dance, to play, to find some bit of happiness despite the knowledge that he will never be who he was. We applaud his ability to bounce back from such a catastrophic injury, to the point where he can move fairly freely as long as he has his pain pump.
What we do not condone is this tactic by the insurance company to take this away from the legal issues. The motion to vacate judgment should be judged on the issues, not in the court of public opinion. If you are going to put this kind of thing into the public eye prior to its resolution, you should know better than to misconstrue it. Mark’s injuries can’t be seen. Your attempt to play him off as some sort of fraud sickens me.
Moreover, it is my belief that such behavior borders on violating the Rules of Professional Conduct, which govern all lawyers in Washington State, specifically RPC 3.6, that a lawyer engaged in litigation shall not make an extrajudicial statement that the lawyer knows or should know would have a substantial likelihood of prejudicing a proceeding.
My hope is that the judge will see this tactic the way I do, and take appropriate action to ensure other’s don’t face the same misleading assault on their right to seek redress for the wrongs of others. All too often we hear from the insurance companies and their lobbyists about the need for tort reform. We hear about the need for personal responsibility. This knife you wield cuts both ways, and your attempt at deceit is nothing but your own attempt to avoid that responsibility.