ATLANTA (Legal Newsline) – Personal injury lawyers deployed a private detective to gain employment at a factory so he could covertly take photos they hope salvage their quest to sue companies that make forklifts alleged to be unsafe for their drivers.
That’s the story The Raymond Corporation is telling in federal court documents as it fights a personal injury case of a forklift-driver who says his injuries at a FedEx facility could’ve been prevented if the Raymond-made forklift he was operating had been safer.
It’s part of a bigger strategy to boost the credibility of an expert witness used unsuccessfully in a previous case, Raymond says, noting the same plaintiffs lawyer has hired this expert (Dr. John Meyer) after using others in cases that failed to convince a stand-up forklift without a door is defective and leads to left leg injuries.
Raymond’s motion to strike Meyer’s opinions calls him a “well-educated engineer with virtually no prior experience with lift trucks of any kind.” Another forklift company sued by attorney Michael Warshauer said Meyer’s opinions were litigation-driven and submitted only to meet the needs of plaintiffs lawyers.
Kenneth Jones and attorneys at Merkel & Cocke in Mississippi and Warshauer Law Group in Atlanta sued Raymond Nov. 13, 2020, over his injuries. As part of proving their design defect claim, they need to show there was a safer alternative Raymond ignored when building a cab without doors.
Jones’ left leg was crushed when it left the cab during a crash. The case is readying for a trial in November.
But on May 31, Raymond filed a motion to enforce a subpoena against the Warshauer Law Group. It seeks communications between the firm and a man named Ray Rivera, whose investigation was cited in a report by one of the lawyers’ experts.
That report says Gap, Inc., has at least 31 forklifts at a warehouse in Fishkill, N.Y., and all of them have doors. That information was supplied by Rivera, a former New York Police Department detective who runs Corsi Investigations.
Raymond’s lawyers questioned Rivera at a recent deposition regarding how he obtained videos and photographs of forklifts at the Gap warehouse. He testified the Warshauer Group hired him to “obtain videos and/or photos of standup forklifts with doors at the warehouse of Gap, Inc., Fishkill distribution campus.”
But his initial effort was thwarted because the facility, obviously, is closed to the public. So he took his idea to apply for a job as a loss prevention specialist position to Warshauer, who expressed doubt Rivera would be hired because he’d be considered overqualified, the deposition says.
“I actually had no knowledge of what a loss prevention officer would do,” Rivera said.
Rivera got the job anyway. He worked at least three days at a rate of $17.95 an hour, using an app called Timestamp on his phone to secretly take pictures of forklifts.
He put the phone in the front pocket of his shirt and “would just let it do its job,” he said. Asked why he didn’t want to be noticed taking photos, he said part of the undercover operation was not letting anyone know the real reason he was there.
He quit after obtaining the photos and kept what he made at The Gap. He charged lawyers $3,500 when he submitted his findings in a report to Warshauer to use in the Jones case.
The information was used in a report by Dr. Meyer, a mechanical engineer used years ago by plaintiffs in design defect cases involving seatbelt-less Bumbo infant seats.
The Jones case isn’t the first time Warshauer has gone to Meyer for his opinion on forklifts that lack doors. In a Louisiana case, Crown Equipment in October challenged his status as an expert because he lacked alternative safer designs, like those he used months later with the help of Rivera’s report on the Gap warehouse in the Jones case.
Challenged in that Louisiana case as to whether he’d ever designed a component park for a product that went to market, he replied, “I don’t believe so.”
Ultimately in that case, Judge Sarah Vance tossed the plaintiff’s design defect claim, finding an addition to Meyer’s report for alternative designs with doors was filed too late.
Vance also found Meyer’s original testimony failed to reach a concrete conclusion about the best design alternative. Crown had argued, “Dr. Meyer’s opinions are inadmissible because they are driven solely by litigation and a desire to meet the needs of the attorneys who retain him.”
Warshauer and his co-counsel have appealed Vance’s ruling against them to the U.S. Court of Appeals for the Fifth Circuit. Warshauer has also appealed a loss in a trial during which Meyer was permitted to testify.
It remains to be seen whether Meyer’s opinions will hold more weight in the Jones case as a result of the private investigator’s work at the Gap warehouse. Raymond has moved to strike his opinions and for summary judgment.
“Dr. Meyer is simply parroting other litigation ‘experts’ such as Thomas Berry and Jonathan Colton, whom Plaintiffs’ counsel retained in prior lawsuits against Raymond that either resulted in the exclusion under Daubert (Berry) or similar admission standards, or a complete defense verdict despite presenting their opinions to juries (Colton),” the motion adds, citing two previous failed cases.
“Rather than designate Mr. Berry or Dr. Colton here, Plaintiffs’ counsel has now recruited a third engineer, and is attempting to use him as a mouthpiece for inadequate work performed by others, particularly Mr. Berry, while insulating Mr. Berry and Dr. Colton from the previously effective cross-examination at trial.”