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$8 Million Jury Award Overturned by Courts

Michelle Gaines ran all the time, and played volleyball and soccer in high school.
Margaret Downing

The first blessing, her father will tell you, is that she never saw it coming.

If she'd been tensed up, it would have only been worse when the 18-wheeler with no brakes on the drilling rig load it was carrying ran a red and slammed into 19-year-old Michelle Gaines as her car was crossing the 256 loop around Palestine in East Texas.

And when Mike Gaines saw his daughter in the emergency room at Mother Francis Hospital in Tyler, on June 11, 2006, his first thought was that everything was fine. His soccer- and ­volleyball-playing daughter wasn't at all torn up as he expected; she looked about perfect.

"There wasn't a scratch on her. I was ready to say, 'C'mon, let's go home,'" he says. "But it was all internal." The crash had broken her pelvis, punctured a lung and the force of the accident had smashed her brain against the inside of her skull and inflicted permanent damage. She wouldn't talk for months.

Three weeks later, Mike pulled a doctor aside only to be told "that she was brain dead. There was nothing I could do. That I could either take her home or put her in a nursing home." A mechanic, Mike didn't see how he could manage the feeding tubes and oxygen line his daughter needed. And he wasn't ready to buy their diagnosis.

Mike's lived his whole life in Palestine, population 18,000, and he got on the phone to friends who connected him to other friends. State Senator Todd Staples got involved. Then came the second blessing. A nurse at Mother Francis told Mike about what Baylor Hospital in Dallas was doing with cases like Michelle's. He hadn't known, but he believed her when she said the doctors there could really help his daughter. Problem was, there was a six-week wait to get into Baylor and the Tyler hospital was throwing her out now. They'd already tried to get his wife to sign the deed to their house over to the hospital because the family had no insurance.

That's when they got the third blessing. Michelle got pneumonia and under the law, Mother Francis couldn't oust that sick a patient. The family got the time they needed to get things set up with Baylor, which took Michelle on as a charity case. She stayed there three months.

But while there was remarkable improvement, Michelle wasn't the Michelle she'd been. Because of the pressure on her brain — it had gone undetected in Tyler, Mike says — Michelle's peripheral vision was gone and wasn't coming back even after a couple of operations. She had short-term memory loss. Mentally, she was — and remains — in a 12-year-old's territory.

The family went to court and in 2010, an Anderson County jury awarded more than $8 million to Michelle. The jury assessed damages against Kenneth Woodworth, the driver of the tractor-trailer — who had had no driver's license for six years (let alone a commercial one) and admitted he "had done some methamphetamines" the day before he inspected the brakes on the trailer he was pulling. They found against Benny Joe Adkinson, Woodworth's employer and the owner of the rig.

The jury also found against Joseph Pritchett, a businessman with lots in Robstown and Conroe who buys and sells new and old oilfield equipment, who'd had a lot of deals with Adkinson over the years and who, Michelle's attorneys say, had entered into a joint enterprise with Adkinson to use this particular rig as a template for other rigs they'd produce and sell. Pritchett, who was added later in the case, was the only one with any real money.

During the trial, there was a lot of evidence presented by Michelle's attorneys that not only had Pritchett and Adkinson destroyed evidence by cutting up the drilling rig before Michelle's attorneys could have an expert examine it, but that there were payments totaling $96,000 that they said were bribes paid by Pritchett to Adkinson, payments that — fortified by falsified invoices — were designed to disguise his role in the enterprise. (Pritchett's attorneys deny there were any bribes. They call that accusation pure "speculation.")

Mike had started working on the trust fund he'd set up for his daughter, one, he says, that would be unbreakable and would provide for housing, transportation and medical care long after he was gone.

But in 2011, Pritchett's attorneys went to the 12th Court of Appeals and won. They argued successfully that it had never been proven that Pritchett had entered into a joint enterprise with Adkinson in this particular instance, even though Adkinson's rig was going to Pritchett's yard. The appeals court ruled that Michelle's attorneys had failed to prove that Pritchett had any control over the drilling rig and what Adkinson had done with it, even though the first person Adkinson called after the wreck was Pritchett. They said Pritchett didn't owe a penny; he'd had nothing to do with the accident. It was a sad situation, his attorney Jennifer Grace says, but he's not responsible.

 

The key point, according to Grace, was that setting a precedent by allowing Pritchett to be held liable would have a devastating effect on business in Texas. "If this were allowed to impose liability, it would forever change the business landscape in Texas. Anybody that was in business with somebody else could potentially be responsible for their acts that they had no control over."

Scott Clearman, lead attorney for Michelle, appealed to the Texas Supreme Court, but it declined to hear the case. They've filed a desperate, last-ditch motion for a rehearing, and take hope in the fact that in last week's Supreme Court list of rejected cases, Michelle's wasn't on it.

Six years after her accident, Michelle Gaines, the prom queen of her high school her senior year, the girl with a 3.9 GPA whose father thought she would make a good game warden, who had a soccer scholarship to Hill College and was everybody's best friend, is now a 26-year-old woman living at home with her dad on a daily regimen of physical therapy, computer games and medicine that gives her the shakes but keeps away the seizures and the migraines, who writes down most of her moments because otherwise they'll be lost by her betraying brain.

She walks with a limp, and with her depth perception off, she approaches objects like a kitchen table with arms outstretched, a person trying not to get hurt. She used to be ready to try anything; now almost everything is too scary.

She'll tell you her blessing. "It's a blessing I'm alive." And as much as that is true, it's also painfully difficult to accept that unless the Texas Supreme Court changes its mind, that's as good as it'll get for the foreseeable future in a state that above all prides itself on its business sense.
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According to Scott Clearman, lead attorney for Michelle, there is long-standing case law that "if someone does something to cover up an act, that it can be concluded by a jury that they did the act. Let's say you bury bloody clothes from a murder scene. Well, you had to have some reason to bury them. A jury can infer you have something to do with the murder."

And according to Clearman, Texas appeals courts are the only courts in this or any other state that are not acknowledging the validity of jurors rendering a verdict after hearing convincing circumstantial evidence.

What also boggles his mind, he says, is that even though Adkinson and Pritchett both made and remade their stories after caught out in inconsistencies and outright lies during trial, the Court of Appeals chose to take their testimony about their lack of a business relationship as gospel.

The way he sees it, the appeals court's decision gives a green light to anyone who wants to buy his way out of a case.

On the day of the wreck, Adkinson was transporting the rig to Pritchett's yard outside Corpus Christi, although investigators didn't figure this out for a while. Adkinson and Pritchett had talked about "blueprinting" the wreck. After the wreck, the rig was impounded in Tyler and then released to Pritchett's yard. Once there, it was inspected once by Clearman and another attorney, who immediately afterward added Pritchett to their lawsuit. They set up a later appointment for an expert to inspect the rig, but that never happened.

"An inspection was scheduled and they canceled it," Grace points out. She says Pritchett's attorneys notified Michelle's attorneys that Adkinson had decided to pick up his rig. She said Pritchett had no right to stop him. And she says Michelle's attorneys "didn't seek any relief from the court to stop him."

Clearman doesn't see it quite that way. He says Michelle's attorneys had canceled because their expert couldn't make it that day and were in the process of setting up another appointment. But the rig was not only moved, it was cut up into three parts and hauled away. Evidence gone.

But that was all a moot point anyway to the Court of Appeals, which noted: "Even assuming Pritchett is partially responsible for Adkinson's destruction of the rig, nothing on the rig could show whether Pritchett and Adkinson had an equal right to control the enterprise months earlier."

Steve Norris was jury foreman on Michelle's case and he just really doesn't understand or accept the jurors' work being overturned by the Court of Appeals. "The judge, any time you're on jury duty, says it's your civic duty to be on jury duty and if you're not there...they're going to send the deputy sheriff out to find you."

 

Told that Pritchett's attorney, Grace, had made the point that a court is better than a jury at understanding the legal requirements of what constitutes a joint enterprise, Norris suggested that then perhaps the appeals court should hear every trial and maybe meet the people who testify.

"We took all the information very serious and did the best job we could, and we all came to a unanimous decision. We were there for four days hearing everything. Mr. Adkinson, he was really a jerk. He was so obnoxious the judge had to tell him several times to quiet down or she was going to remove him from the court," Norris recalls.

"I don't know about the other jurors but at the first, I wasn't really sure Mr. Pritchett had any connections at all, but after you hear all the information presented to you, toward the end I made up my mind that Mr. Pritchett was involved in all this."
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Mike will tell you that pre-accident, his daughter "was no angel," that, in fact, he practiced tough love at one point, taking away her car and selling it, and kicking her out of the house because he felt she was partying too much. "But we had made up just before the wreck. She come back around and decided she wanted to go to college."

The night that Michelle was rushed to the emergency room, at least 100 of her friends were there, her father says. Now, there's only one.

Liz McDonald Smith played midfielder to Michelle's right wing on the soccer team. Smith was able to go on to a soccer scholarship at Sam Houston State, but she kept in touch with Michelle, although even she says it was hard at first with the changes her friend underwent. She understands why other friends got caught up with their own lives and families and left Michelle behind.

"People just hurt seeing her like that," she says. "I always thought when she woke up, it'd be back to Michelle. Finally I came to and figured she would be there for me no matter."

Smith remembers her friend's aggressiveness and quickness on the soccer field. She'd like Michelle to try to volunteer for the soccer program at her old high school. "Whether she maybe down the road will be able to have a job, I'm not sure if she will." Michelle tried to sit in on a history class and take notes; the bright lights and noise brought on a migraine.

Smith has just started a Facebook page (www.facebook.com/JusticeForMichelleGaines#!/JusticeForMichelleGaines) and is selling "Support Michelle Gaines" wristbands at her small furniture store in Palestine, Three Peaches (threepeaches123.blogspot.com/2011/02/palestine.html).

Michelle's sister-in-law, Jennifer Gaines, quit her job to go to work for Mike helping take care of Michelle, driving her to doctors' appointments and making sure she takes her meds and does her exercises. But Michelle tires quickly, she says. It took her six months to persuade Michelle to try swimming. "She just doesn't remember that she knows how to swim."

During high school Michelle ran all the time, Jennifer says, and could eat anything. Now her brain often misses the "full" signal and an hour after eating, she can forget she ever sat down to a meal. She has a stationary bicycle, an ab machine and a treadmill in an at-home workout room, but doesn't always want to use them.

Of course, as so often happens, there's been collateral damage. When Michelle had her accident, her mother was still married to her father and was there by her side at the hospital. But three years ago, her mother walked out and hasn't been back since, according to Mike. Michelle's accident wasn't the only reason, but it was the final stressor. Fifty-four-year-old Mike got married again this past December, and six months later began divorce proceedings. "If her own mother couldn't take the situation, it's hard for another woman to come in and do it. I basically just give my life to Michelle."

Michelle, her sister-in-law says, dreams of a husband, children and a house, living independently of her dad. Her dad says she can't be trusted alone for more than an hour at a time. "I used to go over to friends' houses three to four nights a week and have dinner and drinks. I went fishing and hunting, but now I basically stay home with Michelle in the evenings and weekends."

They did get $100,000 initially from the Crime Victim's Assistance fund, but that's almost all gone now with doctors' visits and rehab treatments, Mike says. Medicare and Medicaid cover some things, not all. In the first months, the people of Anderson County raised money to help the Gaineses with housing and gas so Mike and his wife could stay close to their daughter.

 

"The lawsuit, some people think it was just for Michelle to get rich. It's not for that," Mike says. "It's for medical. We all know if you go in the hospital and you've got money, you're going to get the best help there is. Or you can go to the best hospitals. My dream has always been to take her to Chicago; they got the No. 1 head trauma center in the world. Maybe they got technology up there we haven't heard about."

The Court of Appeals said that Pritchett's case should never even have gone to the jury. Clearman says he can't believe that "bribery and destruction of evidence and fabrication of evidence" is being tolerated in Texas civil courts.

Michelle Gaines gets up every day and tries to remember what other people have said her life was. If she goes to a restaurant, she frequently gets lost on her way back to her table from the restroom. Once there, someone else has to cut her meat or pancakes for her; because of her vision, she can't be trusted with a knife.

In criminal court, Adkinson and Woodworth were found guilty of negligence and got probated sentences. Pritchett wasn't found guilty of anything, and now the appeals court says he's liable for nothing. Adkinson, a man in his eighties, is paying Michelle $200 a month. It doesn't require a high level of math skills to figure how that's not working out.

Michelle goes to church and asks for the Lord's blessings. It's kind of tough to see the three men who she and a jury believe wrecked her life aren't paying at all, while she pays every day.

But thank God business in Texas, as we know it, is being preserved.

margaret.downing@houstonpress.com


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