Book's True Story Testifies to the Threat of Tort 'Reform'

Reprinted with permission.  TRIAL 2003.

The current fight over tort law is not the first-but a new book may register the strongest resonance yet with lawyers, potential jurors, and policy- makers on both sides of the debate.

A Measure of Endurance: The Unlikely Triumph of Steven Sharp, tells the story that helped move President Bill Clinton to veto the Product Liability Reform Act of 1997.

As Sharp testified at a Senate Commerce Committee hearing, "If this bill would have been in effect when my accident happened, I would not have had my day in court.  And I needed it.  And everybody else like me does, too."

His case also led ATLA to establish an annual award in Sharp's name, honoring lawyers and their clients whose cases illustrate the civil justice system at its best.  But nothing has brought his story home to mainstream America as forcefully as this book.

In the summer between his sophomore and junior years in high school, Sharp lost both arms when the tractor that drove the hay baler he was cleaning suddenly self-started and, as he put it, "the baler ate my hands."  The 17-year-old boy, who had operated farm machinery since he was 9, insisted he had turned off the power before hopping off to clean the baler.  In fact, the same self-start problem had been at issue when a man's arm was mangled in 1986 and when another farmer was decapitated in 1990.

Three years after Sharp filed suit in 1993, the trial jury awarded him several million dollars, finding the tractor maker negligent in its product's design and warnings.  Three more years passed before the Wisconsin Supreme Court unanimously upheld the verdict.  (Sharp ex rel. Gordon v. Case Corp., 595 N.W.2d 380 (Wis. 1999).)

It would have cost the manufacturer 70 cents to fix the defective part; as of autumn 2002, when the book was completed, the company had neither recalled the tractor nor advised its dealers and customers of the problem.  Used tractors of the same model were still readily available.

More than the law

Bill Manning, the Minneapolis-based lawyer who represented Sharp, recently told TRIAL that A Measure of Endurance is "all record-based," and that although it is a book about law, it is about far more.  "It's a cross between A River Runs Through It, Tuesdays with Morrie, and A Civil Action."

He marvels at how his former client, now friend, got on with his life-from daily routines to hunting, fishing, and even skiing, which he took up after his injury.  Now 28, Sharp dates, Manning said, and "he probably will get married someday.  But he will never hold his child's hand."

It is this personal quality that drives both the book and Manning himself.  "One tries to reach a point where you're working out of an inner fire rather than slogging through the outer part of life every day," he said.  "You have a mission to care for who your clients are. . . .  It's an inner journey: When you come out, you're different.

That journey led a retired University of Minnesota professor and prize-winning poetry translator to write his first book.  For several years, William Mishler had run a literary study group that included Manning, and the two men were close.  One day Manning told Mishler about a portentous dream Sharp had (it's described in the book), and the professor asked to meet him.  They had breakfast together shortly after the state supreme court ruling and later, Mishler and Sharp spent six days fishing in Oregon together.

When Mishler returned home, he wrote the first three chapters of A Measure of Endurance.  "The editor was knocked out," Manning recalled.  "He said, ‘This guy can write like a poet.'"

In the book's "Note to the Reader," Mishler wrote that "in Bill Manning, Sharp had found a kind of legal counterpart to himself, a character who showed a comparable degree of grit, energy, and idealism in pursuit of the goal of obtaining justice."

Keen legal strategizing is part of the story, too.  The Sharp case, Manning said, "illustrates the importance of asserting legal theories in the trial phase that you may need on appeal . . . We had to meet the threshold of evidence on the postsale duty to warn before we could even get it to the jury.  Had we not done that and proved our theory, we might not have won on appeal."  Proving the theory was difficult: There was no statutory support, only case law.

The ramifications of the case, however, transcend the realm of legal theory.  In presenting the first Steven J. Sharp Public Service Award to its namesake and Manning at ATLA's Winter Convention in 1997, the association's then-president, Howard Twiggs, said Sharp's case and those of future award recipients help convey "what is at stake when our opponents push for radical liability limits."

A Measure of Endurance could well have an emotional impact unmatched by popular novels that trace the course of legal cases.  "If the book is a success," Manning said, "it's a very positive thing for the [tort ‘reform'] debate.  The Republicans are not going to give up."

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