McDowell Off The Hook

by Bruce McEwen, December 16, 2010

The lawsuit against McDowell Valley Vineyards has failed. It was brought by Nick Fross, the college football prodigy who was stabbed and, he says, permanently disabled at a party on the Hopland property in 2006.

The Mendocino College Eagles football team had been invited to McDowell to celebrate its just concluded season by Kyler Crawford, son of Bill Crawford, the owner. Mr. Crawford had asked a couple of bruisers, the Gonzales brothers, sons of his ranch manager, to keep an eye on things. A fight broke out when one of the ballplayers, Dayton Edwards, wanted to ride a motorcycle on the property. In the ensuing mêlée, Nick Fross got stabbed in the chest by a Gonzales and nearly died. Fross was suing Crawford for medical bills, past and future.

The kid didn’t get anything from the jury but more bills — this time lawyer bills.

Everyone except Fross and his lawyers seem to think justice was served. The consensus opinion is that the Crawfords were not liable for the stabbing, that the Gonzales who did the stabbing was not one of the babysitters that he'd simply shown up like an evil wind out of nowhere.

The Crawfords weren't responsible and they’re happy with the verdict. They say Nick Fross and his personal injury lawyers didn’t have a case. It was a party of football players. They were drinking beer. There was a fight and someone got stabbed by a person who had not been authorized to keep order. It wasn’t the Crawfords’ fault the kid got stabbed.

Bill Crawford inherited the Hopland ranch, but still had to take out loans to buy out his siblings. By all accounts, he’s a good guy, a generous guy, "giving a lot back to the community," in the cliché, a family guy, with an identifiable face and pleasant personality, as opposed to the faceless corporate entities which have become the rule in the North Coast wine business. He probably has as much debt as assets. One lawyer I spoke with said Fross’s attorneys weren’t very good, which is what local attorneys always say about out-of-town lawyers, but they made a pretty good case for Fross, I'd say.

The injured kid's attorneys were Kevin Konicek and Jenny Klose, both of Santa Rosa.

They got off to a good start and scored early, bringing in a doctor from a family practice in Santa Rosa who could not be construed as a professional witness, a paid shill for the plaintiff.
Dr. Joel Erickson seemed scrupulously honest. When he talked about Nick Fross’s need for psychotherapy and a massage therapist — the knife just missed the boy's heart — he was far more convincing than the medicos who come into criminal court to argue a patient’s need for, say, medical marijuana.

Mr. Steven O’Neil for the defense, the Crawfords, pointed out that Dr. Erickson had agreed with another doctor who judged Fross’s PTSD to be mild.

But Konicek for Fross put up the extra point by asking Erickson if “mild” meant that the condition was trivial. No, it didn’t. The football player would need these therapies, the doctor asserted, and so would you if every day and night you saw a knife in your chest and could feel it there, too.

Mr. O’Neil for the Crawfords kicked off with his medical expert, Dr. Norman Danting. Dr. Danting, 84, works for the State. This old boy examines people who want to get on SSI before they’re old enough to retire, so he has a lot of experience defending his opinions in formal settings. He also lives in Santa Rosa and has known young Kevin Konisek since Konisek was a little kid.

Having looked hard at the Fross case, Dr. Danting said all Fross needed, in his opinion, was four to six months of physical therapy and a prescription for the anti-depressant Zoloft, which Fross could get real cheap in generic form.

Given his age, Dr. Danting derives from a tougher, more skeptical time. Put a couple of drinks in him and he might say, "All this post traumatic this and that is a big load of bullshit."
Most people over the age of 70 think like that. They're from a tougher time.

Konisek, of course, had a lifetime of treatment in mind for his client. To have this notion of expensive massages and long-term psychiatric sessions for the next 50-odd years reduced to a scant four-to-six months of run-of-the-mill physical therapy and a bottle of generic pills, well, this estimation of his client’s needs was altogether too dismissive.

Konisek noted that Dr. Danting had never examined Fross, or even met him. How could he say such a thing!

Dr. Danting produced a picture of Fross in his football uniform.

“He was able to resume spring training, then he became a starter for the Eagles. He played 11 games, won player of the week consistently and was given an award for the year. He has since won a football scholarship in North Dakota.”

The old boy had a point, a great big point with a sharp end on it. How can you play football, the roughest sport there is, if you're a physical and psychological cripple?

Dr. Danting wanted to give the photo of Fross in his football togs to the jury as Konicek lamely objected. “It’s just a moment in time caught on film,” he said.

True enough, but it's hard to argue with a picture, let alone the living fact of a big strong kid continuing to play the game he loves.

Judge Behnke didn’t throw any yellow flags. He did, however, ask that he be shown any further pictures before they were shown to the jury.

Dr. Danting commented, “Well, he’s playing hard-nosed football. That means he’s got to push and pull hard. He did it and he was very good at it. That indicates to me he recovered completely from the stab wound in ’06.”

Konisek said, “So you’ve changed your opinion since I deposed you?”

“Yes.”

“But you’ve never met Nick, or examined him?”

“No.”

“And again, doctor, you’ve seen very few patients with PTSD, isn’t that true?”

“Yes, a dozen at most.”

“And you don’t consider yourself to be an expert, do you?”

“No, I do not.”

Konisek said the antidepressants would do no good if Nick really was under a threat from the guy who stabbed him, Marco Gonzales, when Marco gets out of prison next month.

That conjecture was strenuously objected to by the defense.

The jury was told they were not to speculate about what the psycho stabber might do when he's released from prison, but by the look on Konisek’s face, he’d been penalized more than five yards.

But he had one more question. He reminded the witness of some opening remarks he’d made on the stand.

“Dr. Danting, you said you retired from private practice because of your health and that caused you some depression?”

“Yes, that’s right.”

“Is that common when you can’t do what you love, it causes depression?”

“Yes.”

Fross was still doing what he loved and apparently doing it quite well and so was Doctor Danting who'd apparently gotten over his own mental despond. Fross, too, was still doing what he loved to do. Although he'd nearly been murdered, and like many crime victims he'd been doubly harmed, as the next witness, an admissions and billing clerk from Ukiah Valley Hospital, confirmed.

Saving his life had cost Foss $43,250.98.

Physical therapy and counseling costs, which went anywhere from $40 per hour up to $250 per, would increase this formidable sum.

A teammate of Fross's at Mendocino College was called to testify.

Samuel Layton now works as a firefighter in Nevada City. He played one season with the Eagles and was at the Hopland party that nearly fatal night. He remembered the Gonzales brothers.

“They were extra-big guys,” Layton said. “They all had like Bluetooths [wireless telephones] on their ears, like security guys.”

“Did you see them talking to Dayton Edwards?”

“Yeah. The two of us were out in the parking lot. All of a sudden they were all standing around Dayton — really really close. They were like touching him, surrounding him, it was sketching me out. I’ve played football with some pretty gnarly guys, but these guys were—”

“Objection — non-responsive.”

Judge Behnke explained the rules to Mr. Layton. He’d have to wait for the questions before he answered them.

“What happened after Dayton hit one of these guys?”

“It was like a blur — I just remember having a-hold of one of Dayton’s legs, trying to pull him out. It was like a tug-o-war. By then there were 15-20 of us all there.”

“Did you see Nick get stabbed?”

“No, but I was buddies with Nick, and when I saw him walking off it didn’t look right, so I went over to him.”

“Objection, non-responsive.”

“So when you saw Nick walk away it was still chaotic?”

A juror passed a note forward and the judge read it: How long after the fight started did Nick get stabbed?

Layton didn’t know, and I wondered if the Gonzales boys were so big and tough one of them had had to use a knife?

Klose said, “So you got away from the fight and went to Nick?”

“Yeah, and when he started taking off his shirt, I called for the ambulance.”

“What did you and Nick talk about?”

“He said, ‘Tell my mom I love her’—it was pretty bad; I was like super-worried, too.”

“Objection, non-responsive.”

“Did you go to the hospital with Nick?”

“I didn’t go in the ambulance, I don’t know why. I went with the CHP officer. At the hospital I was pretty much with his mom the whole time.”

“Objection, non-responsive.”

“Did you see anybody else trying to break up the fight?”

I don’t know. Nick was one of the more jovial guys on the team. Everybody liked him.”

O’Neil was going to object again, but Ms. Klose was done.

O’Neil started to cross.

“Did you have any contact with these Mexican guys?”

“I just remember them being there.”

“Do you know who Marco is?”

“I’m pretty sure he was one of the guys standing around Dayton.”

“You said you saw him holding a knife earlier?”

“Yeah, I saw one of them pull a knife and flip the blade out. I got a little sketched out.”

“And sketched out is what — alarmed?”

“Naw, I wasn’t alarmed. But, well, somebody playing with a knife at a party isn’t all that cool.”

“Did you associate the three fellows you saw with the guy who had the knife?”

“They all kinda looked alike; I don’t know if they were brothers or not.”

“Did you see Dayton hit one of them?”

“Yeah — well, I just saw him swing.”

“Earlier in the evening, would it be fair to say that these guys were just ‘hanging out; chillin’?”

It was incongruous to hear the white-haired defense lawyer in the Brooks Brothers blazer using street slang like “chillin’,” but young Layton answered him evenly: “Yeah, they were just hanging with Kyler.” (Kyler Crawford, son of the vineyard owner.)

“But you didn’t see them telling people to get off the property?”

“Actually, I did see them turn some people around.”

“Did you see them tell other people what to do?”

“They didn’t tell me what to do.”

Mr. Konisek called the defendant, William Crawford.

Konicek had some letters from Marco Gonzales, sent from prison, to Mr. Crawford. And a letter from Crawford in answer. Marco The Stabber had had a visit from his family and learned of the impending lawsuit. His letter stated that he would be willing to do whatever Mr. Crawford asked when he got out. This could be construed as a threat, if not a conspiracy, since Crawford’s return letter said “Stay safe and out of trouble so we can welcome you home when you get out.”

O’Neil moved quickly and decisively to clear it up.

He asked Crawford, “What did you mean?”

“I didn’t want him to get hurt in prison.”

“Did you mean you were going to give him a job or a place to live when he got out?”

“No.”

“Why not?”

“I don’t think he’s safe to have around.”

“Aren’t you on the Search and Rescue team?”

“Objection, relevance, your honor!”

Judge Behnke, suggested O’Neil move along.

“On the night this all happened, did you know Marco was going to come over?”

“No.”

“Did you approve of him being there?”

“No, absolutely not.”

O’Neil called another football player up to testify, Carson DeVinny.

“Did you see some individuals at the party who were not members of the football team?”

“Yes. Three fairly large men of Hispanic origin.”

“Did you have any contact with them?”

Yes.

“Were they doing anything you took to be of a bullying nature?”

“No.”

“How would you describe their behavior?”

“Same as anyone else.”

“See them giving orders to anyone?”

“No.”

“That’s all I have.”

Jury instructions are the hinge that the door, the fatal door, of jurisprudence turns on. Judge Behnke had the jury on his mind. The instructions were being hammered out as the jury cooled its heels out of hearing in the jury room.

Judge Behnke cut his eyes over his shoulder and said, “Counsel, can I have your attention… Please?”

I wasn’t the only one in the courtroom, although I had been for days. There was a lawyer in a fresh suit and a brand-new necktie all of a sudden. He sat as far from me as he could, but I’m not shy. What gives, I asked. Who are you?

“Let me just say,” he replied, “that I’m representing an interested party.”

Judge Behnke said, “Counsel, you’ve proposed some language for superseding cause regarding Dayton Edwards…”

“It breaks the chain of causation,” she emphasized, looking over her rectangular lenses at the judge. “Was Marco within the scope of his employment when he committed the battery on the plaintiff?”

It went on like this for a while, the drafting of the jury of what the judge would tell the jury to decide.

Marco, a boy only a father could love, had some issues with his size and power. His brothers were big powerful men, and so was he. Perhaps he came to the party to help his brothers, perhaps he showed up hoping to hurt someone.

“So let’s move on to negligent hiring,’ the judge suggested.

The lawyer in the pews was snoring.

Mr. O’Neil consented to the wording: Intervening cause, an antecedent to it…

Judge Behnke shot his eyes over his shoulder at the clock and said tersely, “Did you have some questions about No. 16?”

At the rate of about $289 per hour, the lawyers had many questions about No. 16. Ms. Klose was intent to make sure that Mr. William Crawford’s name went on the jury form as President of McDowell Valley Vine-yards. After all, two individuals had been named in the action: Bill and his Corporation: McDVV.

So, why did the Gonzo Boyz tell Dayton he couldn’t ride the bike?

Dude, you’ll get hurt and sue — we can’t have that. How that simple injunction could get someone stabbed remains a mystery.

Negotiations over jury instructions dragged on.

“It’s 9:30,” a weary Judge Behnke said. “I would have sent the jury home if I had any idea it would take this long.”

On it went.

The clock slowwwwwly ticked off another hour. The tiddlywinks continued. Ms. Klose was trying to download something on her computer; it was taking a lot of time, and the judge ordered her to use the court’s Flash Drive.

Judge Behnke, just a little more than exasperated, declared, “Look here. We can finalize it all later. Counsel! Can I have your attention for a moment, puhlease?!”

Finally, the instructions were ready.

The jury reappeared. Judge Behnke apologized to them, explaining that agreeing on the instructions was "like writing a novel.”

The instructions took longer to write than the jury took to find for McDowell. It was over.

Fross had been sacked. He'd have to do the best he could with his near death experience.

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