Fury Bailey - Personal Injury - Wrongful Death Attorneys

WRONGFUL DEATH ENDS IN 2.8 MILLION DOLLAR VERDICT

by

William S. Bailey

Fury Bailey

710 – 10 th Avenue East

Seattle , WA 98102

THE INCIDENT

Thursday, June 22, 2000 , was a bright, sunny late spring day in Seattle . Twenty-two year old Yianni Philippides was finishing up his last run of the day as a bicycle messenger, en route to an architectural firm on the Seattle waterfront. Having started college while still in high school, Yianni had decided to give himself a break from school after his senior year at University of Washington . He intended to follow his older sister Zoe into law eventually.

Yianni waited on the northeast corner of lower Alaskan Way & Spring Street for the traffic to clear before he entered the crosswalk toward the west side of the street. Eyewitness Robert Johns saw him straddling his bicycle, feet on the ground, looking both ways. Johns had just come from an interview at Holland American Lines and was stopped in the inside southbound lane of Alaskan Way . He made eye contact with Yianni and indicated that he would not attempt to make his left turn until Yianni cleared the crosswalk. Johns saw that the oncoming northbound traffic lanes were clear. Yianni pushed off, pedaling slowly, after taking one last look to his left. Yianni cleared one lane and got halfway through the second lane of northbound traffic when he was hit at high speed by Robert Bernard, a 30 year old traveling shoe salesman for Wolverine Worldwide. Though Bernard was in Seattle to call on Nordstrom's, staying right across the street at the Sheraton, he nonetheless had rented the Isuzu Trooper SUV he was driving. Bernard told the police later that he never saw Yianni Philippides until he was on the hood of his vehicle.

The damage done to the Isuzu Trooper by Yianni Philippides body was extensive – the right front portion of the hood was crumpled and two prominent impact spider webs were on the windshield from the secondary impact of Yianni's body. SFD paramedics responded to the scene and found Yianni breathing but unconscious, with signs of a severe head injury. He was rushed to Harborview.

About a mile away, Yianni's sister Zoe had gone with friends to Mama's Mexican Kitchen in Belltown for drinks after a day of studying for the bar. After taking only a few sips from her margarita, she suddenly felt unwell. She asked to be taken home by her friends. On the way, she heard sirens in the distance. At the time, she did not know that this was from emergency medical and police personnel rushing to the scene where her brother had just been hit by Robert Bernard.

June 22 was a busy time for the Seattle Police Department with the Aristotle Marr bank robbery and murder occurring earlier that same day. Officer Jim Landers was an acting sergeant who was called to Spring Street & Alaskan Way to help process the collision scene. Detective Kevin Andrews was in charge and asked Officer Landers to take a statement from defendant Robert Bernard. As is his custom, Detective Landers said to Bernard, “This is your chance to tell your side of the story. I will write down anything you ask me to.” Among other things, Bernard said, “It happened so fast. The first time I saw him, he was on the hood.” He also told Officer Landers that he was “on Alaskan Way looking for a place to have dinner.” When asked to review and sign his statement, he crossed out two whole sentences and balked at signing it, eventually declining to do so.

Meanwhile, Detective Andrews and his team took extensive photographs and measurements, later using the sophisticated “total station analysis” for mapping the scene. Detective Andrews found scrape marks on the pavement which proved that Yianni Philippides had indeed been in the crosswalk when hit by Robert Bernard. Bernard had not brought his Trooper to a stop until he was 85 feet past the crosswalk.

Yianni's parents, George & Kathryn Philippides, were up in Alaska on an extended trip driving to remote areas of the state. Kathryn Philippides knew something was wrong when she tried to reach each one of her children on the evening of June 22, 2000 . There was no answer. Then she tried to reach her mother Jacqueline Kester. Again, no answer. The next morning, she was able to talk to her mother, learning that Yianni was in Harborview Medical Center . The Philippides drove ten straight hours to Anchorage and got on the next available plane home. It was only when the arrived at Harborview they found how serious their son's condition really was.

They maintained a vigil for days, bonding with the ICU nurse that was responsible for their son – Kim Cota-Anderson. However, as the days went on, it became apparent that despite the two brain surgeries which removed major portions of his skull in an attempt to relieve the pressure, Yianni would never regain consciousness. Eventually the family was advised by medical staff that while it was their decision, it would be appropriate to take Yianni off life support. In a tearful family conference at Harborview, the family all agreed that is how Yianni would want it to be – he would not want to be left like this, with no hope of ever getting better. He died within several hours after he was disconnected from life support.

THE FAMILY

Married for nearly 30 years, George & Kathryn Philippides were dedicated to their children and entire extended family. In addition to Zoe and Yianni, their other son, Costa, was a University of Washington graduate in civil engineering.

Born in 1930 in Athens , Greece , George had not married until he was nearly 40. As a boy, he lived through the worst of times in his native country – the Nazis killed tens of thousands of men, women and children in World War II. Then the communist take over in Greece repeated the whole cycle of violence anew, with thousands more killed.

When he graduated from high school, he faced a country in great turbulence, with few economic prospects. However, by sheer determination and ability, he rose from washing aircraft for Olympic Airlines to a mechanic, to a crew chief and then became a flight engineer. While over in Seattle for training on the Boeing 727, he went on a blind date with Kathryn Kester, a University of Washington student. Using a Greek-English dictionary, he barely managed to make conversation. But this couple soon fell in love, despite the language barrier, and were married in the summer of 1970. They moved immediately to Athens , where George continued his work for Olympic Airlines.

After their first two children were born, political tensions flared up between Greece and Turkey over Cyprus . Wanting a better life for their children, George gave up the prestigious, well paying career in the cockpit for work he knew nothing about – as an orchardist in Wenatchee . Having lived through the worst of times in his own youth, he wanted to make sure that his children were well educated, safe and happy. By dogged effort and resourcefulness, he was able to make the transition to his new circumstances in America . Their third child, Yianni, was born in 1977 in Wenatchee .

From an early age, Yianni Philippides was noticed by his teachers. He was equally adept at verbal skills and mathematics, as well as a gifted writer and artist. In high school, he was a national merit semifinalist, with SAT scores in the 98 th percentile. In a family that emphasized the importance of education, Yianni met all of his parents' expectations. At the same time, he was exceedingly good natured and affectionate. He had the kind of smile that generated warmth and sincerity, as well as a mind that was always curious about life.

DEFENDANT'S ONLY CONSEQUENCE – A TRAFFIC TICKET

Detective Kevin Andrews put in several months of effort into reconstructing the accident that took Yianni Philippides life. Even with his training to give the benefit of any doubt to the defendant, he concluded that Robert Bernard had sufficient time and distance to avoid hitting Yianni Philippides in the crosswalk. He recommended to the King County Prosecutor that this matter be filed as a felony, negligent homicide. However, under its office policy, the prosecuting attorney will not file crosswalk deaths as felonies unless there is evidence of substance abuse. Consequently Robert Bernard paid only a $250 traffic ticket for negligent driving in the Seattle Municipal Court for taking Yianni's life.

BAILEY & FURY'S FIRST JURY TRIAL AS A TEAM

Though Bill Bailey and Steve Fury had been friends who practiced law for the better part of 20 years together, since first meeting as associates at the Levinson Friedman firm in February, 1982, they had never tried a jury case together. This changed after the Philippides family hired their firm to pursue a legal action against Robert Bernard and his employer. Dividing off trial responsibilities, Bailey focused on developing liability and damages themes. He determined that 1998 legislature changes supported an attempt to bring an action for the parents' loss of consortium of their 22 year old son, even without financial dependency. Fury concentrated on attacking the defense case, particularly all the defense experts, which included William B. Skilling (vocational), Vincent Jolivet (economist) and John Hunter (accident reconstruction).

THE MOTION TO DEFINE “LOSS OF SUPPORT”

On April 5, 2002 , Fury Bailey took a preemptive strike on the consortium issue by asking the initial trial judge, the Honorable J. Kathleen Learned of the King County Superior Court, to hold that the 1998 amendments to RCW 4.24.010 broadened the definition of “support”, now applying to parents dependent for emotional support on adult children who had been wrongfully killed. The 1998 amendments had not been subject to judicial interpretation since the time they were passed. Fury Bailey brought in former Washington State Senator and Washington State Supreme Court Justice Phil Talmadge as associate counsel for purposes of arguing this motion.

Given his extensive experience in the legislative process, as well as a sitting justice, Mr. Talmadge was extremely helpful in making the necessary technical interpretation of the 1998 amendments. The Court ultimately ruled with the Philippides family, finding that the 1998 amendments broadened the concept of “support” in loss of consortium cases to include both emotional and psychological support. The Court concluded that if the legislature had an intended meaning of support to distinguish between minor and adult children, it would have been easy to quality the parents' cause of action for the death of adult children as “financial only”. However, the legislature did not do so and the Court had to read the statute consistently, using the same broad definition of “support” for minor and adult children.

The defense moved for a direct review of Judge Learned's decision by the Washington State Supreme Court. Meanwhile, the matter was set for trial on August 19, 2002 . Settlement talks failed as the insurance company for defendant Bernard placed no value on George & Kathryn Philippides loss of their son's emotional support. Commission Jeffrey Crooks of the Washington State Supreme Court issued his written opinion on August 1, 2002 , finding that there was no obvious or probable error in Judge Learned's ruling of April 5, 2002 . The matter would proceed to trial.

A NEW TRIAL JUDGE STEPS IN

Meanwhile, Judge Learned announced her retirement less than a month before the case was set for trial. Judge Nicole MacInnes, a former King County Deputy Prosecuting Attorney and veteran of both Seattle Municipal Court and King County Superior Court agreed to step in and hear the case. Motions in limine were extensive on both sides. The defense placed great hopes on getting in equivocal evidence on whether or not Yianni Philippides was wearing a bicycle helmet at the time of the impact. In all the confusion that attended this scene, memories differed among the police and fire department personnel. There was conflicting testimony by members of the Seattle Fire Department and Seattle Police Department. In researching this issue, Steve Fury found both a New Jersey and a Montana case which stated that the presence or absence of bicycle helmet was not to be mentioned to the jury. Judge MacInnes also found that the jury would have to speculate the helmet from contradictory testimony.

The Court ruled in limine that plaintiffs could not introduce testimony about Yianni Philippides' interest in a legal career, finding it too speculative. The Court kept out Robert Bernard's multiple speeding tickets from the months proceeding and following the fatal collision.

THE TRIAL

Plaintiffs did not call a large number of witnesses at trial. Professor Emeritus Shirley A. Murphy of the University of Washington was a key part of their case. An expert on parental bereavement, Dr. Murphy testified in court for the first time in her career. She had tested both Mr. and Mrs. Philippides, finding them to have significantly high levels of mental distress and depression. Even compared to other parents whose children had been killed, Mr. and Mrs. Philippides were at the upper end of the distress and depression scales. Dr. Murphy told the jury that this was the kind of emotional devastation from which parents never recover. Her research data had followed subjects five years out from the date of their child's death, finding that after some initial diminishment in the first year, the level of parental grief remained at a constant level thereafter. Dr. Murphy also noted that the peer review literature pointed at the development of chronic health problems in parents whose children had been killed, likely caused by an immune system collapse from the intense stress. The defense was unable to impeach Dr. Murphy in any way on cross-examination and offered no opposing expert.

Detective Andrews of the Seattle Police Department was called by the plaintiffs to discuss his investigation and findings. The defense made a determined effort to prevent Detective Andrews from offering any expert opinion, first saying he wasn't qualified, and then that even if he was, it was cumulative. The Court determined that an investigating police officer is in a different position than an expert retained by a party in a lawsuit, allowing Detective Andrews to tell the jury his conclusion that defendant had sufficient time and distance to avoid the accident. This was built upon by plaintiffs own reconstruction expert, Charles R. Lewis, who provided the data for computer animations created by Jay Syverson that were shown to the jury. These animations demonstrated the visibility available to Bernard prior to hitting and killing Yianni Philippides. It also showed how easily Robert Bernard could have avoided this accident if he had only applied his brakes as he entered this intersection.

Another key expert for the plaintiff at trial was highly experienced document examiner Timothy P. Nishimura, who has worked for a number of police agencies over the course of his long and distinguished career. Mr. Nishimura was able to determine what Robert Bernard had crossed out of the statement he dictated to Officer Landers at the scene: “I thought a rock hit the windshield.” “There was traffic to the right side.”

This second statement was critical, in that the defense argued that there was traffic in the right turn lane that blocked Bernard's view of the crosswalk. Plaintiffs argued that this was total fabrication, in that the defendant had crossed out a statement to that effect at the scene.

DECONSTRUCTING THE DEFENSE CASE

The defense placed great reliance on the testimony of their accident reconstruction expert, John Hunter, saying to the jury “he is a man you can rely on.” Hunter opined that there was nothing that Robert Bernard could have done to avoid the accident. However, to reach this conclusion, Mr. Hunter had to add an additional second of perception time to the so-called “standard” perception reaction time of 1.5 seconds.

In a full-bore cross-examination, Fury went after Hunter for “double counting,” using copies of a number of textbooks from Hunter's own library. Fury also produced a “Perry Mason moment” in the cross-examination of Hunter, finding an early draft of Hunter's opinion in his file which concluded that the defendant could have avoided the accident. This document was blown up and used prominently in the cross-examination. Fury also forced Hunter to go through a number of calculations in which he had to agree that defendant would have had sufficient time and distance to avoid the accident.

Fury did a frame by frame analysis of Hunter's two computer animations. In the first, which was an overhead view of the intersection of Alaskan Way & Spring Streets, Hunter had a right turning car make an illegally wide turn, thereby blocking more of the defendant's potential view. In the second computer animation, Fury did a frame by frame analysis, showing that the position of the mannequin on the hood in Hunter's animation did not match up with Detective Andrews' photographs showing where Yianni Philippides body had hit the hood and windshield of the Isuzu Trooper. In both instances, Fury's cross-examination had Mr. Hunter back pedaling vigorously, saying that these were “just illustrations, not meant to be accurate.”

DEFENDANT'S MISTAKES

Defendant Bernard made a serious mistake in trying to blame Robert Johns, the motorist who had been waiting for Yianni to cross. The theory of Bernard's counsel was that by motioning to Yianni that he was going to remain stopped, Johns was liable for acting as a crossing guard. Mr. Johns was added reluctantly as a party defendant by plaintiffs. In opening statement, Bailey told the jury that Robert Johns was blameless and did not belong in the case. He was only there because Bernard refused to accept responsibility. Mr. Johns had inspired representation by veteran lawyer Andrew S. Dimmock, who effectively overlapped his defense with plaintiffs' case. Beyond the skill of his lawyer, Mr. Johns was a sympathetic, likeable figure who gave a good account of his own actions that day, as well as those of Yianni Philippides.

Bernard's credibility was impeached seriously at the very end of the case, when under cross-examination, he volunteered that he was “always a careful driver.” There was no question before him that would have called for that self-serving response. The trial court ruled that the defendant had opened the door to his speeding tickets, which were then introduced.

Defense counsel for Bernard attempted to personally attack Yianni Philippides for his so-called “alternative lifestyle” as a bike messenger. Eventually, the Court ruled that they had crossed over a line, which then allowed plaintiffs to put into evidence about Yianni's growing interest in becoming a lawyer.

THE CLOSING

In closing argument, Bailey pounded away at Bernard's lack of credibility, calling him an outright liar, saying that “If he was Pinocchio, his nose wouldn't even fit into this courtroom.” Bailey had repeatedly emphasized to the jury from voir dire through closing that the case was about the total failure of the defendant to take personal responsibility for his actions, as well as the public safety threat that resulted from his extreme carelessness. While the only remedy the jury would be able to fashion was in money terms, the jury was told that the central theme in the case was the basic human need for accountability and justice.

The closing argument focused on how all parents look at their children as the hope of the future, the close nature of the Philippides family and a recital of what kinds of things were taken away from George & Kathryn Philippides by the death of their son. The case went to the jury on Wednesday, September 4, 2002 , at 11:15 a.m. They reached a verdict the following day, September 5 at around 11:30 a.m. In a karmic twist, this was the birthday of defendant Robert Bernard.

The jury had little difficulty in determining that this accident was entirely Robert Bernard's fault. Their discussions largely centered around damages, with a desire to be cautious and conservative in making an award of money for the loss of human life. In the end, the jury found that Mr. and Mrs. Philippides had exceptionally close ties to all of their children, and that, given his multiplicity of talents and public spirited, good hearted personality, Yianni Philippides would have been a successful professional. George & Kathryn Philippides were each awarded $900,000. The medical bills were stipulated at $118,675.41 and the jury determined that Yianni's estate was entitled to $891,809. The defendants were represented by Mark Thorsrud, Russell Love and James Fucetola of Thorsrud, Cane & Paulich.

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