Injured FF Awarded $12.75M Didn't Hoodwink Jurors
The Seattle Times via YellowBrix
September 18, 2010
SEATTLE – The city of Seattle’s attempt to overturn a $12.75 million judgment awarded to a former firefighter — using secretly shot video of the man chopping wood and playing horseshoes and bocce ball — unfairly distorts the actual injuries he suffered in an on-duty fall, his lawyers said in court papers filed Friday.
Lawyers for Mark Jones argued that he had not “hoodwinked” a King County jury that last October found the former Seattle firefighter was left permanently disabled after he fell 15 feet through a fire-station pole hole nearly three years earlier. Jones suffered several fractures and claimed chronic pain and breathing difficulties.
In a previously filed motion to vacate the judgment, which includes several videos, the city’s attorney called Jones’ behavior at his Superior Court trial a “deception.” They said the video even calls into question the “credibility and reliability” of what happened to Jones in the fall.
But in a sharply worded, 51-page reply brief, Jones’ lawyers told Judge Susan Craighead the city’s motion relies on brief, selectively edited videos of what he can do on good days, and “grossly mischaracterizes” what led to the jury verdict.
“The focus of the case was never about Mark’s physical limitations — this case was about how the City’s negligence significantly changed Mark as a person,” said the brief, which argues that brain injuries were the primary cause of his disability.
Jones’ lead attorney, Dick Kilpatrick, couldn’t be reached for comment Friday.
Jason Anderson, an attorney representing the city, said he was reviewing the response and would file a reply to it.
Jones, 46, of Bothell, was on temporary assignment at Station 33, 9645 Renton Ave. S., on Dec. 23, 2003, when he awoke in the dark bunk room and walked through the wrong door while looking for the restroom.
He fell through an unguarded fire-pole hole to the concrete floor below, Jones said in court papers.
Jones was knocked unconscious and, according to court paperwork, suffered a head injury, 10 broken ribs, fractures to several vertebrae and his pelvis, and lung, bladder and liver injuries.
Jones said his injuries resulted from negligence on the part of the city and the Fire Department for failing to install a proper guard at or around the fire pole, or the door that led to it.
Jones tried to keep working by performing light duties, but retired in September 2009 after more than 10 years as a Seattle firefighter, the department said.
The Superior Court jury also gave Jones a separate award of a lifetime worth of pension and coverage of all medical expenses.
Since the trial, Jones has been receiving his pension and seeking some medical treatment, but the verdict has been under appeal by the city since last fall. Neither Jones nor his guardian, his twin sister Meg Jones, a Seattle Fire Department lieutenant, has received any of the multimillion-dollar jury award.
Investigators hired by the city captured several hours worth of video of Jones during a camping trip at Fort Flagler State Park in April and while vacationing in Montana in June, Anderson, the city’s attorney, said in August after the city filed its motion to overturn the verdict.
In the videos, Jones is seen chopping wood, playing a game of bocce ball, competing in a horseshoe-throwing tournament and breaking into a victory dance.
“It was represented at trial that he [Jones] needed a 24-hour personal assistant to help him with his daily activities; he testified at trial that he felt like he was 80 years old,” Anderson had said.
Anderson said two of the three physicians hired by the city to evaluate Jones in February 2008 to determine whether he was “totally and permanently disabled” — the criteria for a workers’ compensation claim — have reversed their findings after viewing the videos. The third physician has since died.
In the reply, Jones’ lawyers say it’s the city’s premise that Jones “hoodwinked” the jury by claiming he could never do anything physically, when actually he is able to go camping, chop wood for a few minutes, play horseshoes and enjoy himself.
“This assumption fundamentally misunderstands the concept of total disability,” the lawyers wrote, noting that Jones never claimed he was an “invalid or sat at home in a dark room.”
Although his physical limitations affect him, it is his brain injury that significantly impairs his ability to function “independently in the real world,” the brief states, citing short-term memory problems, poor judgment, an inability to focus and other limitations.
A pulmonologist testified that Jones had the lung capacity of an 80- or 90-year-old man, which might cripple him over time, according to the brief.
Jones never claimed he “was a cripple now,” said the lawyers, who also challenged how the two physicians could alter their findings based on a few minutes of silent video that doesn’t shed significant light on his cognitive abilities.