Movie Machine

Lead attorney Eric F. Yuhl helped injured cinematographer Donald Peterman win a $5 million settlement after a crane collapsed.

By Kelly E. Lee

Renowned Hollywood cinematographer Donald Peterman, whose credits include the feature films "Men In Black," "Splash" and "Cocoon," won a $5 million cash settlement under the representation of lead counsel Eric F. Yuhl, along with co-counsel Michael R. Rhames and Christopher P. Yuhl, in a product liability claim against both a camera crane manufacturer and a supplier.

During the filming of the movie "Mighty Joe Young," on July 2, 1997, on a film set located in the San Fernando Valley, one particular frame of the movie called for an elevated shot, requiring a camera crane. Peterson and an assistant crane operator, Ray DeLamott, were sitting at the end of a camera platform, which had room for two people. Peterson and DeLamott were 25 feet in the air, filming the action, when the crane suddenly collapsed. Both men rode the collapsing platform to the ground before being ejected.

Peterman sustained a head injury, fractured ribs and hip, and various other injuries. He required an internal) fixation of the left hip and leg fracture and a lengthy recuperation period. Peterman sued both the manufacturer, Panther Corp., and the exclusive U.S. distributor of the failed crane, Shotmaker Co., which was later consolidated with DeLamott's case against the same parties. Counsel for Peterman contended that a defective pin in the crane caused the collapse.

Peterman's counsel argued that the offending pin made of solid steel 3/4 of an inch in diameter, was heat-treated during the manufacturing process, which ultimately caused the failure. Heat-treating fatigues metal parts, in this case, resulting in a break in the unit from the inside out, they said.

Counsel for the defendants did not respond to requests for comment. According to Peterman's counsel, a representative of Panther Corp. admitted during his deposition that heat-treating a pin would make the pin defective, but he denied that the broken pin was manufactured by his company because they do not use heat treatments and also because the pin did not bear the company's markings. Panther's representative maintained that the pin did not belong to them, although the company allegedly admitted that no other manufacturer in the, world produces those types of pins, and Panther does not always mark or stamp every pin, Peterman's counsel said.

"Logic would exclude anyone else from making the pin, but [Panther] pointed the finger at Shotmaker, saying that they brought the wrong leveling rod and that they may have fabricated the pin themselves," says Yuhl.

But Shotmaker pointed the finger right back at Panther, claiming that all materials supplied to the production company were manufactured by Panther.

"It's always a good thing to have the co-defendants pointing the finger at each other because it helps to support and build your own case," says Yuhl.

Despite some helpful admissions by the defendants, sticky issues remained for negotiations.

Shotmaker, as the supplier, had delivered the crane to the set in pieces. Some leveling bars and pieces of the crane required assembly by the movie-'set crew, referred to as "grips," on site. Witnesses stated that the leveling rods, long pieces of metal that fit in a cradle and level the crane boom and platform, did not seat perfectly in place. Instead, they fit only approximately 95 percent, so the grips wrapped a bungee cord around the rod to reinforce it and to prevent it from moving during use. The grips intended the unusual wrap-around to function as a sound-suppression device, because complete silence on the set is necessary during filming.

The defendants contended that the improper use of the leveling rod, when the grips specifically knew that the rod didn't fit, created additional stress at the pin, causing it to fail. Peterman's counsel denied that the rod's tie-down had any significance as to the structural load of the pin failure, but if the defendants could convince the jury that the tie-down was responsible or even contributed to the failure, they knew that under Proposition 51 the determination, based on proportional fault, would significantly reduce the award to Peterman.

Michael Rhames, who focused on the liability issues of the case, states that the microscopic tests did not reveal that the pin broke due to unusual forces. Rather; the molecular structure of the pin, due to the heat-treatment, was the sole reason for its uncharacteristic break from the inside.
"As more scientific evidence was obtained, it became clearer and clearer that it was a defective pin," concludes Rhames.

Another concern for plaintiff's counsel was that the defendants might argue at trial that Peterman, as the director of photography, had a supervisory role and thus had the obligation to oversee the grips' assembly of the crane. If Peterman himself was found contributorily negligent, this, too, would significantly reduce his pain and suffering award, the bulk of the damages in this case.

"We had to let the case mature to see what his ability to work was before we could file suit," states Yuhl.

Peterman was unable to make any films for two full years, generating a substantial loss-of-future-earnings claim. Peterman was 66 at the time of the accident, and in most industries his future earnings would be limited.

However, due to the unique nature of the film industry, he would be able to work at a fairly high salary, making two or three movies per year, for perhaps another 10 years. Coincidentally, at the time of the settlement, the Academy Awards had just been shown on television and Conrad Hall, 81, won the award for director of photography, boosting Peterman's damages claim.

The soon to be released feature, "The Grinch Who Stole Christmas," is Peterman's most recent credit since the accident and served as a benchmark for helping determine what his future work life would be like. Though Peterman was able to complete the shoot; it proved difficult.

Peterman's rehabilitation expert testified that while Peterman could still work, he would probably, at best, be able to perform only 25 percent of what he had done in the past because, as the director of photography, he was required to climb, hike and scout locations in order to find the right shot. He would no longer be able to do that three to five times a year, as he had done before the accident. Based on this, and including the reduction in his earnings, Peterman claimed a loss of $2.3 million.

But there was no greater obstacle to settling the case than the insurance companies. Shotmaker, during the course of the case, filed for bankruptcy. Although the company had some insurance, and the bankruptcy court allowed Peterman to collect under the policy, the court did not allow him to become a creditor and file against Shotmaker's assets. In the midst of all that, Shotmaker was embroiled in a conflict with one of its insurance companies regarding the amount of coverage available for Peterman's accident. Panther Corp. was covered by a liability insurance policy through Chubb Germany, but the policy had declining limits for defense fees and costs and its value was calculated in Deutsche marks.

At the outset of the case, the policy was worth more than $4 million in the United States, but by the time the voluntary settlement conference took place in May, the policy had declined to approximately $3.6 million due to currency fluctuations. At one point, the policy dropped $7,000 in value within a 24-hour period. In addition, the German company had no assets in the United States that Peterman could reach, so Panther knew that even if Peterman obtained a judgment against them, it would be difficult to enforce in a foreign country. It was a significant tactical advantage for the defendants.

"Negotiations were difficult because we were never sure how much money
was really there to settle with," says Eric Yuhl.

Considering this, he rejected the defendant's offer to settle in Deutsche marks and intentionally negotiated the settlement with Panther so that Peterman would receive the $5 million settlement amount in U.S. funds, regardless of the state of the market at the time. He also gave Panther six months in which to pay, affording the company an opportunity to pick a better exchange rate.

Eric Yuhl characterizes the case as complicated and labor-intensive, and attributes the outcome to the firm's team approach.

The case took nearly two-and-a-half years to settle, partly due to the severity of Peterman's injuries, requiring an extensive recuperation period. It was questionable if he would ever be able to return to work.

Discussing the challenges of the settlement negotiations, Eric Yuhl says the first session was an unsuccessful affair with more than 20 attorneys and insurance representatives present.

"There was a lot of in-fighting, but through direct talks with defense counsel we were able to regroup and see Judge [Robert] Wenke for a second all-day session," Yuhl says. "Judge Wenke did a great job hammering out a settlement in a very complex case. He was a real aid in the resolution."

SIDEBAR
Type: Product liability

Result: $5 million cash settlement, including a workers compensation lien of approximately $120,000

Case cite: Peterman v. Shotmaker Co. and Panther Corp. , 5C048767 (L.A. Super. Ct., Santa Monica, May 18, 2000)

Attorneys:
Plaintiff -- Eric F. Yuhl, Michael R. Rhames and Christopher P. Yuhl, Yuhl Rhames Yuhl & Atkinson, Santa Monica
Defendant - John Bower, Bragg, Short, Serota & Kuluva, Los Angeles, for Shotmaker Co.; Friedrich W. Seitz and Richard Moreno, Murchinson & Cumming, Los Angeles, for Panther Corp.

Experts: Plaintiff - Jeffrey Schaeffer, Ph.D., psychologist, Neuroscience Associates Inc., Los Angeles; Gene Bruno, M.S., vocational rehabilitationist, Los Angeles; Theodore Vavoulis, M.S., economic consultant, Vavoulis & Associates Inc., Pasadena; Merhad Haghi, Ph.D., mechanical engineer, Exponent-Failure Analysis Associates, Los Angeles Defendant - Panther Corp. : Gary Fowler, Ph.D., metallurgic analyst; Robert Kadlec, Ph.D.; Lester Zackler, Ph.D.; Arnold Purisch, M.D.; Richard C. Rosenberg, M.D., orthopedic surgeon; Edward Workman, M.D., rehabilitation counselor; David Weiner, M.B.A., economist Shotmaker Co. : Richard Rosenberg, M.D.; Arnold D. Purisch, Ph.D., psychological evaluator; Lester Zackler, M.D., neuropsychiatrist; Donald Cox, Ph.D., metallurgic analyst; Mack Quan, Ph.D., accident reconstructionist; David Weiner, M.B.A., economist; Edward Workman, M.D., rehabilitation counselor

Mediator: Robert Wenke, Retired Judge Los Angeles Superior Court, ADR Services, Century City