Trial and Error

George W. Bush was a 2-percent owner of the Texas Rangers and living in Dallas when Kenneth Miles pulled his Ford Ranger pickup into a McDonald’s in April 1993. On a rainy Saturday, Ken had gotten off work at the Dallas Ford dealership where he was employed in the parts department. He was taking his two stepsons, Willie and Jermaine, to visit family friends in a suburb south of the city. On the way, he was treating the boys to hamburgers.

As he drove south on I-35, Ken asked Willie to pick up a hamburger wrapper that had fallen on the floor. The 14-year-old leaned forward. It was one of two times that a small piece of paper would change the course of Willie “Boo” Searcy’s life. As he sat up, a 1984 Mercury Cougar driven by a 17-year-old began to hydroplane in the northbound lane. The car crossed the median and slammed into the 1988 pickup Miles was driving south. Both drivers were braking, but the impact occurred at the equivalent of a “closing 75-mile-an-hour crash.”

A steering column is designed to absorb energy. The steering wheel in the pickup probably helped save Ken Miles’ life. As did the lap and shoulder belts that restrained him. His ribs were cracked and his jaw injured. Willie Searcy’s 12-year-old brother, Jermaine, was riding in the middle seat; his lap belt somehow protected him from life-threatening injury. His forehead and mouth were damaged when his head hit the padded dashboard. Ken and Jermaine were taken to a hospital in an ambulance. Willie was far less fortunate. When he leaned forward to pick up the trash, a small device called a tension eliminator released enough slack to allow him to reach the floor. When working properly, it takes the slack out of the belt and holds it snuggly in place when a passenger is sitting upright. Willie Searcy’s tension eliminator didn’t take up all the slack in his shoulder belt.

Willie had no broken bones, but his posterior ligaments that held his head in proper position in relation to his spinal cord were torn and stretched. An Army veteran who had served as a medic in Vietnam was following behind Ken Miles’ Ford pickup. He probably saved Willie’s life. He couldn’t save him from a lifetime of paralysis. Willie Searcy would be a “ventilator-dependent quadriplegic” for the rest of his life. He spent three months in Methodist Hospital in Dallas. And three more months in a private rehabilitation facility in Dallas. Within six months, his mother Susan and stepfather Ken were looking at $550,000 in medical bills. The rest of their lives would be defined by medical bills. Willie Searcy would require full-time nursing care. He would have to be “coughed” by an attendant. His trachea tube would have to be regularly suctioned to allow a clear path for the ventilator to breathe for him. Every bodily function would be regulated and performed by a relative, nurse, or attendant.

“We were in a race to save this kid’s life,” Ayres said. Dockets in Dallas were backed up. So in 1994 Ayres filed suit in state district court in Henderson, a small East Texas town 140 miles southeast of Dallas. Ford would have preferred to defend itself in Dallas, but there was a Ford dealership in Henderson. The plaintiffs filed there.

Cases like the one that Jack Ayres filed on behalf of Willie Searcy require a lot of discovery work: hundreds of thousands of pieces of documentary evidence, hundreds of hours of depositions. Discovery is usually accompanied by pretrial motions. One of Ford’s last pretrial motions was a request for a continuance. The company’s lawyers wanted more time to prepare for trial. District Judge Donald Ross denied their request and set a trial date in January, 1995. As the lawyers prepared to pick a jury in Henderson, they faced another delay. Willie’s biological father, Franklin Knight, intervened in the case from the Texas prison where he was incarcerated. Because he was a parent with standing in the case, the judge had to delay the trial long enough for Knight to prepare for it.

To Willie’s attorneys—Ayres, and Randall Sandifer of Dallas, and Mark Mann from Henderson—something about the last-minute intervention after the judge denied Ford’s motion to delay the trial didn’t seem right. Ford’s defense attorneys, local counsel Dick Grainger, and Thomas Fennell and Margaret Keliher of Jones Day Reavis & Pogue’s Dallas office, said they were not behind the intervention. But prison visitors’ logs in Texas are part of the public record. The plaintiffs’ lawyers drove to the prison where Knight was incarcerated and found that Margaret Keliher had visited him. When they told him that his intervention would delay his son’s trial, Knight withdrew from the case. Keliher, who is now a Dallas County Judge, said Ford’s defense team had to see to it that Knight intervened so he wouldn’t come back and sue the company and perhaps its lawyers later. Asked if she went to a prison to meet with Knight, she said she didn’t recall. “That’s been a long time. You’re taxing my memory.”

Ford Motor Co. is not exactly an easy mark for lawsuits. In the early ’90s, the company was winning 80 percent of the cases that made it to a jury. In 1994, as Willie Searcy’s lawyers were starting the discovery phase of the trial, the company was changing its litigation strategy. Ford was going to play hardball. “The essence of Ford’s strategy,” according to The National Law Journal, “is that it’s now ready and willing to try any case, no matter how small, no matter how great the risk of a mammoth jury verdict.” The company would make a take-it-or-leave-it pretrial settlement offer. Ford assistant general counsel James A. Brown was up front about the new strategy. There would be one offer, he told the Law Journal reporter. “I don’t give a shit if they take it or not…If the plaintiff doesn’t settle, it doesn’t matter to us. We tell them, ‘We’re coming after you.’”

Ford came after Willie Searcy’s lawyers. “They told us to make an offer they would find acceptable, or they would string this along until Willie died,” Randall Sandifer said. Sandifer filed an affidavit describing Ford’s promise to delay a final resolution of the case as long as they could.

The trial that finally began on January 20, 1995, in Henderson was not exactly edifying. To prove a faulty Ford design didn’t cause Willie Searcy’s injuries, Dick Grainger had to impeach the character of the parents of a paraplegic who spent most of his time lying in bed. The gist of his argument was that Willie Searcy’s spinal cord was injured because he was a small kid—”in the fifth percentile.” And he had a large head. It was the simple mechanics of a large head and a small neck that caused his injury. To prove the point, Grainger had to dispute the Miles’ story of their son being a good athlete. He couldn’t even make the high school football team, Grainger argued. How could the parents claim he was a good running back? (He was a starting running back for a regional championship YMCA league football team.) Grainger also challenged the parents’ claim that Willie was a bright kid, introducing as evidence intelligence test results administered by an expert witness hired by the defense team. It was not an argument aimed at the hearts of a small-town Texas jury.

Ayres’ opening statement was a quiet, personal discussion with the jurors. He claimed Ford knew long before 1988 that their tension eliminator would at times fail. The Wall Street Journal had in 1987 reported the danger of slack caused by tension eliminators. In the same year, Ford engineers expressed concern that a third of the people who used tension eliminators had too much slack in their belts. In 1983, a Ford engineer developed a mathematical model that predicted passenger injury or deaths in collisions. One variable in the model was the amount of slack in seat belts.

Badly injured plaintiffs like Willie Searcy are easier to represent than large corporations. Jurors readily identify with them. They can put themselves in the plaintiff’s shoes—or car or mechanical bed. That, in a sense, is what tort reform is all about. Rewriting the rules of civil jurisprudence so that although jurors identify with plaintiffs, it is far more difficult to rule in their favor. Making it more difficult for the plaintiff to pick the court in which the suit will be filed. And ensuring that once a jury rules in favor of a plaintiff, strict arithmetical formulas determine a reasonable award.

A reasonable award to provide for the care of Willie Searcy, if he lived in his parents’ house with constant medical assistance, would be $22 million, Ayres told the jury. “If he lived in an assisted environment, where he was independent or had somebody else live with him, or in a hospital, that number would probably be $26 million. That’s what it’s going to cost and I make no apology for telling you that,” Ayres said in his opening statement.

“That’s justice in this case.”

It would require four months of testimony. And reams of documental evidence, including bizarre videos presented by the plaintiffs of Ford crash tests in which the heads were ripped off the dummies when their torsos slammed into seat belts that were stressed in simulated high-speed collisions. At the end of the four-month trial, the jury deliberated for just over four hours. It awarded the Miles family $30 million—most to Willie’s mother for care of her son. On the following day, it took the jury 90 minutes to decide on an additional $10 million in punitive damages. On March 9, 1995, 23 months after he was airlifted off Interstate 35, the state’s civil justice system had delivered the goods for Willie Searcy. But Susan Miles knew she couldn’t go out and buy a backup ventilator and hire a full-time nursing-care-team for her son: Ford described the verdict as an aberration and said it would win on appeal. The appeal—or appeals—would be far more complicated than the trial.

Willie’s lawyers had little to appeal. They had prevailed—or almost completely prevailed—with a $40 million jury decision. They lost on a few points. The Ford dealership in Dallas had been dismissed as a defendant. And Willie’s stepfather’s “loss of consortium” claim had been dismissed. They immediately filed their appeal in Texarkana to challenge the loss of consortium and other technical issues in the decision. They also wanted any appeal of the case heard in the Texarkana court, which was more favorable to plaintiffs. Ford’s lawyers later filed their appeal in Tyler—an appeals court more sympathetic to defendants.

The legal fight over which appeals court would hear the case cost Willie Searcy another year. The Texas Supreme Court finally ruled that the first party to the courthouse decided the jurisdiction—and Willie Searcy’s lawyers had filed first. They now pleaded with the Texarkana Court of Appeals to expedite the case they filed there in January 1996. And the court did. It handed down a complex ruling in 43 days, determining that the $30 million in actual damages would stand. It also ruled that there was not enough evidence to prove Ford grossly negligent or malicious in its intent. The Texarkana court overturned the punitive damages. That part of the case would have to be retried.

“That put a bull’s eye on the case,” Ayres said, making it far more likely it would be heard by the Texas Supreme Court. Ford immediately issued a statement to the press from its Dearborn, Michigan, corporate headquarters. The company would ask the Texas Supreme Court to review the case. The “Ford News” press release also included a call for tort reform to “assure fair and impartial forums where facts can overcome bias and sympathy.”

Willie Searcy’s case moved from Texarkana to Austin. Jack Ayres asked the Supreme Court to expedite the appeal. In the three years since the accident, he had grown more familiar with the almost impossible daily life of Willie Searcy and his parents. Nursing care was patched together. There was no backup ventilator or portable generator to eliminate the risk of power failures. And there was a constant fear of death from autonomic dysreflexia—a spike in blood pressure if a leg or arm is improperly positioned and not moved by the nurse. “This was on all our minds all the time,” Ayres said. On paper Willie Searcy was a millionaire, in possession of a $30 million judgment provided to him by a Texas jury in state district court. Yet his life was at risk because his family didn’t have the money to pay for a complete health care program. This time Ford’s attorneys joined Ayres in filing a motion requesting the Supreme Court to expedite the case.

Priscilla Owen was a Karl Rove candidate for the Texas Supreme Court. An oil and gas litigator from a commercial law firm, she was groomed to run against Democratic Justice Lloyd Doggett. But Doggett filed for the congressional seat vacated by Jake Pickle. In a race for an open seat, Owen defeated Austin appeals court Judge Jimmy Carroll in the 1994 race that made George W. Bush governor.

Owen was soon competing with Justice Nathan Hecht to stake out the most conservative position on the nine-judge bench. (Intellectually, she followed the lead of Hecht, whom she also sometimes dated.) Hecht and Owen were building a dominant right-wing block—until a more moderate centrist faction fell in behind Deborah Hankinson, a 1997 Bush appointee described by The Wall Street Journal as “the rising star on the Texas Supreme Court.”

Two years after plaintiffs lawyers representing Willie Searcy and defense lawyers representing Ford petitioned the court to expedite the case, Priscilla Owen ruled against Willie. The Texas Supreme Court’s unofficial code of Omerta keeps its backroom deliberations under wraps. But two former clerks said discussion about Willie Searcy’s case was acrimonious. It was acrimonious because Priscilla Owen’s opinion was truly astounding. It was not astounding because it ruled against Susan Miles and her son, but because of how it ruled against Susan Miles and her son. According to the court’s procedural rules, the justices would inform the attorneys of the questions of law the court would consider. The attorneys would address those specific issues in their briefs and in their oral argument.

“Venue” was not among the issues—”or points of error”—the court said it would consider in Willie Searcy’s case. Venue was not briefed on the merits by Ford’s attorneys or by Willie Searcy’s attorneys. Venue was not mentioned in the oral argument on November 21, 1996. But the opinion Priscilla Owen wrote in March 1998 was based on venue.

“We felt like we got ambushed,” said Ayres.

A lawyer who worked on the court agrees that Jack Ayres and Willie Searcy were ambushed. “If venue wasn’t in the points of error, it is very unusual that the court addressed it,” the former court clerk said. “If the justices decide they want the court to address something not in the points of error, they would ask for additional briefing. They send letters to the parties and ask for briefing.”

Owen had asked for no additional briefing.

Owen’s opinion was a double ambush. Not only did the court rule on a matter of law it had not said it would address, Owen’s opinion focused on a statute that no longer existed. A new venue statute was part of George Bush’s 1995 tort reform package in
the Texas Legislat
re. Karl Rove had convinced Bush to run on tort reform, and throughout the 1994 campaign Bush promised to “put an end to junk lawsuits that clog our courts.” The Legislature had been passing piecemeal tort reform bills since 1987. Bush and Rove provided the political muscle to pass a large tort reform package in 1995 (which seems modest when compared with what is moving through the Legislature in the current session).

Why would a justice write an opinion about a law that was no longer in effect, when a central purpose of Supreme Court opinions is to clear up contradictions about law and establish precedents to direct lawyers and judges in future cases? In the argot of the court, said a former clerk who looked at the Miles v. Ford opinions, “Priscilla Owen poured them out.” She ruled the case should have been tried in Dallas, not Henderson. Right or wrong, it was that simple—something that could have been done in mere months with a short opinion.

In 1995, the venue statute that allowed Jack Ayres to file suit in Rusk County was replaced by a law much more favorable to corporate defendants. When Priscilla Owen “poured Willie Searcy out,” she did it by writing a long legal opinion that has no precedential value. It was moot the day it was issued because it was written about a law that no longer existed. The Bush- era Texas Supremes have been criticized for being a “results oriented” court—which first decides who is going to win then decides how to justify the decision. Critics of the court point to Owen’s belabored pro-Ford opinion as a painfully evident example of results-oriented jurisprudence. They also point to her $20,450 in political contributions from Baker Botts—the Houston law firm Ford hired to argue the case before the Texas Supreme Court.

The case came back to haunt Owen in January, David Pasztor wrote in the Austin American-Statesman, when President Bush resubmitted her nomination for a seat on U.S. 5th Circuit Court of Appeals. Owen’s opinion had been blocked by Democrats who controlled the Senate until the 2002 elections. Since January, Massachusetts Senator Edward Kennedy, who has been out front in his criticism of Owen, has frequently cited the Miles case as an example of “Justice Owen’s near unwavering support for the positions of businesses and corporations over that of injured individuals.”

To Willie Searcy a final decision on the case must have seemed as remote as admission to law school. Justices Deborah Hankinson, Rose Spector, Craig Enoch, and James Baker had dissented. But after a two-year wait, five justices remanded his case to what they decided was the proper venue: a Dallas district court. On the following day the court handed down an odd order that addressed the two-year delay and reflected the internal fight over stringing Willie Searcy along for two years: “hese appeals should have been concluded months ago, we unanimously agree that the parties’ request should have been granted.”

The court had split 5-4 on the decision itself. But it was unanimously apologizing for Priscilla Owen’s delay.

Willie Searcy and his lawyers would begin over again, this time in state district judge David Godbey’s Dallas courtroom. “We call that one Miles II,” Ayres said. Ford had brought in a new defense team. Dick Grainger was gone. A lawyer from Baker Botts’ Dallas office would be local counsel and a lawyer from its home office in Houston would help direct the case. “Baker & Botts said they needed more time,” Ayres said. “We all knew this kid had been waiting for five years.” Ford got more than more time. Ford’s defense team filed a motion for summary judgement. Judge Godbey granted substantial parts of it—still another decision that Willie Searcy’s attorneys would have to appeal. (Ford’s attorney did not return a phone call regarding the case.)

“This is a heart wrenching case,” federal District Judge Joe Kendall wrote of the situation into which the Texas courts had delivered Willie Searcy. “Susan Miles and her son Willie “Boo” Searcy are in a terrible conundrum.” The federal judge could do nothing to move the Texas court system. He was weighing in on the matter because Susan Miles had filed a separate action in his court to try to compel her employer, University of Texas Southwestern Health System, to include Willie’s nursing care in their health coverage. He had turned 21, and Medicaid cut his nursing care from 104 to 34 hours. Southwestern’s medical director, Stuart Rosenberg, refused to pick up the extra hours because he defined the nursing care as “custodial.” Medicaid informed Susan Miles that it would cut all support unless her private insurance agreed to pick up the 70 hours that Medicaid had cut. Willie had “aged out” of Medicaid and his mother had to go to court to get her employer to provide coverage. The federal court could do little to remedy the situation, but in an angry opinion Judge Kendall warned that in the event of a ventilator failure, “Boo has minutes for someone to 1) notice the malfunction (this is because as Boo is incapable of breathing on his own, he cannot summon the air required to call for help if his ventilator ceases to function) and 2) remedy the situation by fixing the ventilator or manually bagging him until help arrives.”

On June 29, 2001, the Texas court system moved Willie Searcy a little closer to the money he needed to stay alive. The Dallas Court of Appeals reversed David Godbey’s decision and sent the case back to his courtroom. The ruling was written in a way that seemed to guarantee that Susan Miles would finally get the money she needed to care for her son. She would no longer have to patch together the nursing care required to keep him alive.

Then on July 3, 2001, the patchwork unraveled. Willie’s night nurse left at 4 a.m. At 5 a.m. Susan walked into her son’s bedroom and immediately realized what had happened. The ventilator was not working. As Federal District Judge Joe Kendall had warned months earlier, someone had to be there to notice the malfunction.

David Godbey has been appointed to the federal district bench by George W. Bush and was approved by the U.S. Senate in August 2003. Priscilla Owen has twice been appointed to the U.S 5th Circuit Court of Appeals and faces a Democratic filibuster led by Sen. Kennedy. Ford paid Baker Botts a $1 million reversal bonus for winning at the Texas Supreme Court. A Dallas probate court awarded $7.6 million to the estate of Willie “Boo” Searcy. Susan and Ken Miles divorced as their relationship collapsed under the strain of caring for their son. No funds have yet been disbursed to Susan Miles—or to her attorneys, who took the case on contingency.

Ford is requesting a new trial.

Lou Dubose is a former Texas Observer editor and co-author of Boy Genius: Karl Rove, The Brains Behind the Remarkable Political Triumph of George W. Bush.