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Brett Emison
Brett Emison
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Faces of Lawsuit Abuse: Sgt. Jon Brough

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Sgt. Jon Brough (Credit: John Swistak, Jr. via www.stltoday.com)We often hear of "frivolous" lawsuits and "greedy" plaintiffs seeking "jackpot justice" through "lawsuit abuse". In fact, the US Chamber of Commerce, through its anti-justice lobbying arm, the Institute for Legal Reform, has dedicated an entire web site to "Faces of Lawsuit Abuse". But the Chamber focuses solely on defendants. It doesn’t give any example from the other side and doesn’t tell you the full story.

Sgt. Jon Brough helps to tell the other side of the story. I did not represent Sgt. Brough, but his story published in the St. Louis Post-Dispatch struck me.

Sgt. Brough, a 22-year police veteran, was part of team raiding the home of a double-murder suspect in November 2006. Sgt. Brough used a riot shield manufactured by Safariland during the raid. Even though the shield was marketed and sold for use in such raids, the shield failed to protect Sgt. Brough who was shot in the face by a shotgun. Sgt. Brough survived, but has undergone multiple reconstructive surgeries and will never see or smell again.

Sgt. Brough sued the maker of the shield, alleging that Safariland improperly marketed the shield for use in dynamic entries even though the shield would not provide adequate protection. However, Sgt. Brough and his attorney, Thomas Keefe, had difficulty developing their case because of a lack of documents produced by the manufacturer.

After all of the trial preparations had occurred, after months of preparation expended, after numerous depositions, and just days before trial, attorneys for Safariland finally turned over a entire stash of documents at the last minute. Instead of playing by the rules, this company and its lawyers decided the rules didn’t apply to them.

From the Post-Dispatch:

A stash of documents was turned over at the last minute, just as the case was set for trial earlier this week.
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The judge wrote in his order, "The discovery violations committed by defense counsel were not mere delays or insignificant mistakes that occurred inadvertently but rather deliberate or intentional, systematic, dishonest conduct. Their violations undermined the entire system. Their actions showed a disregard of the court’s authority because they believe that they alone decide discovery matters."

[The judge] said that in 17 years on the bench, he never imposed such a sanction, which is called "the striking of pleadings." He noted that it is reserved for "only in the most egregious and systematic, deliberate or intentional discovery violations."

Instead of playing by the rules, this corporate defendant and its defense lawyers played games with this police officer’s life. They dragged him through court for months (if not years), racking up substantial expenses and wasting valuable time. Only when this defendant was caught cheating, and only after this trial judge had enough and stood up to protect the rule of law, did Safariland finally offer Sgt. Brough what he deserved.

The Founders understood the importance of the right to trial by jury. Yet this fundamental right "endowed by [our] Creator" is under nearly constant attack today. Corporations require you to sign this right away when purchasing something as mundane as a cell phone or concert ticket. Commentators – and even presidential candidates – disparage this fundamental right as nothing more than "frivolous lawsuits", "lawsuit abuse" and "jackpot justice".

Don’t talk to Sgt. Brough about "jackpot justice". Sgt. Brough didn’t ask for his fate. He was simply doing his duty and relying on the equipment that was marketed and sold to protect him.

The 7th Amendment is perhaps the most important fundamental civil right because the Founders understood — and perhaps we should be reminded — that we as a society must take responsibility when we wrong someone. If we are not accountable for our actions, then society if forced to pay for our transgressions and care for those we hurt.

When "tort reform" bails out irresponsible individuals and corporations or defendants engage in frivolous defenses that delay justice, tax payers end up with the bill. Medicare, Social Security, and Medicaid pays for the medical care that should be born by the responsible party. Welfare, food stamps and other government assistance pays for housing, shelter, transportation and other basic needs that should be born by the responsible party. Many victims are left to financial ruin, bankruptcy and poverty because the responsible party avoids responsibility and accountability.

When you hear the U.S. Chamber or some other corporate organization talking about tort reform or "lawsuit abuse" be sure to ask them about the other side of the story.

Read More:

[More Faces of Lawsuit Abuse]

[More on your 7th Amendment Rights]

[More on Frivolous Defenses]

(c) Copyright 2011 Brett A. Emison