Itkin, Jason: Agreement/Ignorance Cross of a Safety Investigator

Houston attorney Jason Itkin shows here an adroit use of the defendant company’s safety manual to set up a standard for what the witness should have done, that made his failure to get the facts stark. This was a witness where there was a strong temptation to retreat quickly and not do an extensive cross. The man was GQ-handsome with a charming British accent and an open, straight-up style. He had never been deposed because the other side assured Itkin it was unlikely they would call him and he was thousands of miles away during the discovery period. Rather than fold quickly, Itkin focused on what he did have: an accident report written by the witness and the company’s safety manual.
Itkin’s client was hurt when he slipped on an oil-slickened deck of a drilling rig in the Gulf of Mexico. By the time this witness, the ship’s safety investigator, got to the scene and took photographs, the deck was clean, with just a thin film of a watery substance. The company took the position that the plaintiff had made up the story about the oil on the deck.
Watch what happens as Itkin probes the holes in the official investigation. He starts with some safety principles that help lull the witness into agreement mode.

Q. Your focus is safety 100 percent?
A. (Witness nodding head.)
Q. And because safety is very important of the vessel; is that right?
A. For sure.
Q. It can be very dangerous working offshore, true?
A. Yeah.
Q. And because of that there’s all sorts of safety rules that Cal Dive has that are important; is that right?
A. They are, sir.
Q. And Cal Dive has a pretty lengthy safety rule book; is that right?
A. Yeah. They have a — like a Safety Management System that– that is quite extensive.
Q. And the reason is — if you go to page 286 — Cal Dive has a vision of people going home safely. And I think you and I can agree not only people going home safely but people going home healthy, fair?
A. Couldn’t agree with you more.
Q. (MR. ITKIN) And there is a section on conducting the formal investigation. And it says kind of in the middle of that first paragraph: A formal investigation shall be thorough and conscientious. Do you see that?
A. Yeah.
Q. And you agree — I mean, put aside you are not a paperwork guy. Even though you are in court with your suit on and everything, I hear you. You agree with that just in general principle?
A. Yeah. That is the guideline, yeah.
Q. Do it thorough as you can?
A. Okay.
Q. Be as accurate as you can?
A. “Nodding head.”
Q. Is that right?
A. Yes, sir.
Q. One of the things that Cal Dive wants you to do as part of your job is to interview the people involved, right?
A. Yeah.
Q. And what they want you to do is take complete notes of what each person says. Do you agree, right?
A. Uh-huh.
Q. Okay. That’s what it says right there in Part B. I am not making this up.
A. Right.

Q. So, where it says here take complete notes of what each person says you didn’t do that?
A. By the book, no.
Q. Okay. I mean, because if we go to the next page, it says: After the interview of each witness, write the interview summary of each person interviewed. Report what the person said in the interview using as many of the interviewed person’s words as possible. Do you see that?
A. Okay.
Q. Didn’t do that because you didn’t take notes to go put the summary together, fair?
A. Yeah. And that is quite often the case.
Q. Okay. I want to make a little timeline.
A. Okay.
Q. I think it is pretty much undisputed — you can tell me if I am wrong — but 8:15 in the morning is when the fall happens, right?
A. Okay.
Q. It could have been 8:45 that you interviewed him. It could have been sometime after 11:00, right?
A. Possibly.
Q. You don’t remember when?
A. No, I don’t.

[The cross-examiner then shows the witness the photographs the witness attached to his accident report of the scene of the fall, which he took after speaking to the injured man. On the side of one photo, the witness confirms one can see the edge of a power washer and water hose sitting on the deck at the scene of the accident. The cross-examiner proceeds to the $64,000 question.]

Q. Sir, is it your testimony — can you tell us for a fact —
A. Yes, sir.
Q. — can you tell us for a fact under oath here today in court that after Nigel’s fall nobody came to use that hose and that power washer to clean that area?
A. Afterwards?
Q. Uh-huh.
A. I can tell you that 100 percent, sir.
Q. You can?
A. Yeah.

[Many cross-examiners would have wilted with this last answer. But since it doesn’t fit the timeline, and the cross-examiner will later bring out how the investigator failed to interview any of the relevant witnesses, the lawyer plunges ahead. Before he repeats the question, he salts in some quick background on the timeline.]

Q. Even though the fall happened at 8:15?
A. Yeah.
Q. He saw the medic from 8:20 to 8:40?
A. Uh-huh.
Q. You didn’t interview him for almost three hours later?
A. Possibly.
Q. And you can tell us one 100 percent for a fact that nobody used that power washer?
A. No. I can’t tell you that. Nobody did. I suppose — excuse me. I will take that back. But from me to check the area and to say that there was oil there and somebody suggested that somebody cleaned it, I would say no. 100 percent that that happened, I can’t say that.
Q. There is slick spot of oil there —
A. Yeah.
Q. — and someone saw it, they should clean it up, right?
A. Yeah. Sure.
Q. Okay. Right?
A. Uh-huh.
Q. One of the things you can use to clean a deck with is a hose, true?
A. You can.
Q. Power washer, true?
A. Yeah.
[This next question is safe because the report has no interview notes attached to it.]

Q. Okay. Did you interview anyone as part of your formal investigation report to see if the water that you found on — the clean water that you found on that deck came from a power washer?
A. No, sir.
Q. Okay. Did you ask [the plaintiff] where he thought the oil came from?
A. No.
Q. Did you ask him if anyone else had reported the oil?
A. No.
Q. Did you ask him if anyone else had complained about the oil?
A. No.
Q. Did you ask him if there were any other witnesses?
A. No, sir.
Q. Did you interview anybody else?
A. No, sir.
[Next is a “stretch” question that underlines the point about the lack of interviews by the investigator.]

Q. Did you talk to anybody else about it?
A. No.
Q. How many incident reports have you filled out in the course of your career?
A. Many.
Q. Okay. And when you do it, do you also do them with the same thoroughness that you did Mr. Bryant’s injury report?
A. Well, thoroughness, you know, you look at who is in the area. You have a — you know, debrief and talk about it toil what that next day. You know, there is a black and white. Look at it but also, you know, there is a — you know, people come to you. You know, and Nigel Bryant [the injured man] would have had many friends on there that would have come forward. That is generally how I get all my information. You look at people coming in and helping. You know, you chat to people. You get a feel. But people would say I cleaned that up. I used that power washer. That is kind of how it works.
Q. Hold on a second. Did you go ask anyone if they used the power washer?
A. No.
Q. Do you have any logbook that says when people use the power washer?
A. No. Not at all.
Q. Okay. Are there certain people that use the power washer as part of their job?
A. Yeah. I mean, ABs.
Q. ABs?
A. Able-bodied seaman.
Q. How many ABs did you have on duty between 8:15 a.m. and 11:02?
A. There’s generally four on shift.

[Remember, the cross-examiner has already established that the investigator interviewed no one. So drilling down on specifics of whom he failed to interview on whether or not the deck was washed before he got there underscores how the witness cannot prove no washing occurred.]

Q. Okay. Did you talk to any of those four about the power washer?
A. No. Not at the time, no.
[Good listening by the cross-examiner, and a nice followup.]
Q. Okay. Have you talked to any of those four at any time?
A. About this incident?
Q. Yes.
A. No, sir.
Q. Okay. Did you talk to Nigel’s supervisor?
A. No.
Q. Did you talk to Nigel’s co-workers?
A. No.
Q. Did you talk to anyone besides the medic?
A. No. I didn’t. I spoke to Nigel Bryant and the medic.
Q. Okay. You never gave Nigel a copy of your accident report, did you?
A. No, sir.
Q. Our page 59 this is from Claims here in the middle from Mr. Shields. It says:
We won’t be providing a copy of the incident report to Nigel. He can have a summary. Is that right? You weren’t involved in that?
A. That is way above me, sir.

[The questioner shifts to some quick Rules agreement questions on the defendant’s responsibility.]

Q. Okay. Sir, if someone gets hurt on a Cal Dive vessel —
A. Yes.
Q. — and it is Cal Dive’s fault, you think that Cal Dive should take responsibility?
A. Yes, I do. Yeah.
Q. And I want to know what “responsibility” means to you because you have got — you have got people’s safety in your hands. Okay. Someone gets hurt on a Cal Dive vessel and it is Cal Dive’s fault, should they take care of the man’s wages while he — if he can’t go back to work?
A. I mean, lots of things that are applicable. If he got hurt on a vessel, yeah.
Q. They should?
A. Yeah.
Q. If he got medical costs and he got hurt on a vessel, Cal Dive — part of taking responsibility takes care of those medical costs, true?
A. It is not something I get involved in, but I would like to think so —
Q. Okay.
A. — under the right circumstances.
Q. Someone gets hurt on a Cal Dive vessel, Cal Dive should generally try to make it right, fair?
A. Yeah. Agree with all of that.
MR. ITKIN: Pass the witness, your Honor.