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Jurors Who Watch the X-Files

For the plaintiff's team, the biggest hurdle was convincing jurors to believe that a defense contractor would knowingly put soldiers' lives at risk in order to make more money.

"Would you ever be able to persuade people thatů a defense contractor would build a vehicle and give it to an innocent soldier, knowing that he would drown, that it would sink?" says Svalya.

Given this apparent implausibility, one of the plaintiff's lawyers suggested they needed jurors who watched "The X-Files," the popular TV program that posits widespread government conspiracies in everything from alien invasions to the Middle East crisis.

"This case was inherently unbelievable," says Svalya. "So we decided we needed a group that watched The X-Files, because they'd believe it."

The plaintiff's team requested that potential jurors be asked to list their favorite television shows. "I think the majority of our jurors watched The X-Files," says Svalya, chuckling. "I wouldn't say the program changed the verdict in this case, but it had an effect."

Even Svalya found the story incredible when his client, Boisvert, first came to his law office in May 1986. And during the decade-plus that Svalya pursued the case, he avoided discussing it with all but his close friends. When he did, the listener ended up thinking he was a kook.

Boisvert, who'd served in the Army in the Vietnam War, was an engineer at FMC. He was assigned to do some routine testing on the Bradley, which FMC designed and had been producing since 1981. Specifically, he was to test the Bradley's "swim" capability, as the tank was supposed to be able to cross rivers and other water bodies carrying troops and missiles. The same tests had been performed on the vehicle in 1980, and Boisvert was simply to update them.

When Boisvert put Bradleys into a test tank, they leaked so badly they almost sank. He tried it time a0nd again, with the same results. Shocked he went to his supervisor, who told him to write a report. At a meeting shortly thereafter, he learned that FMC had known for years that the Bradley leaked and had concealed earlier test results from the Army.

"Henry came to me the following day," says Svalya, who represented his wife in their divorce and later represented Svalya in routine legal work. "He said, 'I couldn't sleep last night. If I say it's safe, and don't tell the Army, and if this vehicle is used, there are going to be many thousands of soldiers killed. It'll be on my conscience. You have to do something.'"

Svalya says he replied, "Henry, it's hard for me to believe what you're telling me. That company's been building these vehicles for years. How could they conceal such a think?" He then suggested that Boisvert return to work and try to locate the earlier test on the Bradley.

Boisvert located more than 10 test reports, which Svalya, a graduate of the U.S. Naval Academy and a former Navy SEAL with training in engineering, was able to understand through careful study.

"I went through the reports and it was clear to me that they'd systematically lied to the Army," Svalya recalls. For Svalya and Boisvert, the case became a personal mission to ensure the safety of American troops.

Svalya wanted to alert the Army, and contacted a lawyer at the Department of Justice, who told him that his only option was to file a "Qui Tam" or whistleblower suit in federal court on behalf of the government. Under the False Claims Act she explained the government could choose to take over and prosecute the case for him; any recovery would go primarily to the government with a percentage to Boisvert and Svalya. If the government didn't intervene he could continue to pursue the case on his own and get a larger portion of any award.

"I told her I didn't want to do that, that I just wanted to get this off my conscience. But she told me I had to file a lawsuit," Svalya recalls.

Thus began his long effort to bring the matter to resolution.

In the summer of 1986, lawyers from the Justice Department flew to San Jose to talk with Svalya. In the meantime, his law office was burglarized. His only computer was stolen, as were numerous FMC documents that Boisvert had copied. Fortunately, Svalya expecting trouble, had kept duplicates of the documents in the homes of his office staff. Around this time, FMC fired Boisvert. (He later won $200,000 in a wrongful termination suit).

Also at this time, the New York Times learned of the lawsuit and did a front page story about the Bradley. And James Burton, a former Air Force officer assigned to the Army to test the Bradley, published a book about its many safety hazards, including its vulnerability to attack by cheap rocket-throwers because it's made of aluminum. Burton's book later became a television movie, "The Pentagon Wars," staring Kelsey Grammar.

Suddenly, the Bradley was infamous. Congress held hearings about its safety, and the story was featured on "Sixty Minutes," "20/20," "ABC World News Tonight," and other news programs.

"I had stepped on a hornet's nest. I'm just a solo, and I like being a little lawyer doing little things," says Svalya, who is a general practitioner.

FMC's response was to insist that the Bradley could swim and to keep building them. The army stood behind FMC, describing the Bradley as a top-notch piece of equipment.

But the publicity had some huge benefits.

"Without the media, we would never have won this case," says Svalya, "Because of the media, all these people came forward to me. They told me, 'You don't know the half of it.' It was through them that I learned how the whole company worked."

Svalya says about 40 people contacted him following the various media reports, all supporting Boisvert's claims. But most were afraid to testify, fearing that they would lose their jobs, and requested their names be kept confidential.

The Army chose not to investigate. And 29 of the 36 claims were thrown out, after years of motions to dismiss filed by FMC, Svalya's responses, and the judge's taking of the motions under advisement.

Finally in 1994, realizing he needed reinforcements, Svalya sought the help of Allen Ruby, a successful trial lawyer with a federal practice. Ruby in turn brought in black and his firm.

The high-tech skills of Black's firm provided the extra ammunition that the case needed as it approached trial, Svalya says.



The 'Smoking Gun'

Black, who with his partner Roy Bartlett concentrates in intellectual property, was intrigued by the case from the start.

"When I first heard about it, I was fascinated. I thought it was a riveting story. I had a million questions about how this could be. It really took a series of meetings - almost seminars - with Phil Svalya to get us up to speed," he recalls.

"Part of what we did was to come in and do a lot of discovery that he didn't have the resources to do, and to really round the thing out, at least sufficiently to put this on in front of jury."

But Black and the others realized it would be difficult to convince a jury that the Army didn't know the vehicle was flawed. One piece of evidence was key, and the plaintiff's team was determined to find it.

In 1984, a Bradley sank in Germany, and the Army placed a world wide ban on swimming the vehicle. Then asked FMC to conduct a task force investigation and submit results to the government.

The official report that FMC submitted to the Army said the Bradley was completely safe. But while still employed at FMC Boisvert learned the Army was given a doctored version of the task force test results. He learned that an internal report, which noted serious problems with the Bradley, was hidden and copies destroyed.

Svalya had made numerous requests for the internal report but FMC denied it had ever existed. When Black's firm came on board, the team resolved to locate it.

After a series of discovery battles, the judge ordered FMC to turn over everything it had related to the Bradley. The company produced more than 800,000 documents.

"They adopted what is sometimes done by a big defendant, which is they back the truck up to our doors and dump out all the documents and say, 'Let them find the stuff,'" says Black.

Black's firm assigned a team of lawyers and paralegals to weed through the documents and also to review about 200 videos FMC provided. They used a computer system to organize the materials, scanning everything onto CD-ROM.

And there, amidst all the materials, was the supposedly non-existent internal report. Replete with descriptions of the Bradley's extensive safety hazards, it would prove very persuasive when juxtaposed at trial with the final report sent to the Army, which claimed the Bradley was amphibious.

At that point, Black says, "We knew we had a pretty good story to tell, and darned good evidence to back it up."



The Underdogs

Efforts at court-ordered mediation failed, and the case headed to trial. The plaintiff's team saw themselves as underdogs throughout.

But during jury selection, the defense made a major strategic mistake, Svalya believes.

Because of extensive media reports about the Bradley, defense attorney Dwyer requested an individual voir dire of each prospective juror. In chambers, Svalya recalls, "Dwyer would say, 'Have you read anything about this case, or see the 60 Minutes report, or seen it on 20/20?' By the time that person was through they new this was a big case. He conditioned all the jurors to think this was like O.J., that this was really, really important.

"I loved it," adds Svalya. "Strategically, I think it backfired on him."

The jury was primarily blue-collar and of those who weren't, several had engineering backgrounds, which the plaintiff's team saw as important to be able to analyze the reams of documentary evidence. Most importantly, they needed independent thinkers, says Bartlett, Black's law partner.

"Juries in Silicon Valley tend to be on the conservative side. The thing behind TV programs like the X-Files that we asked about is we were looking for people willing to ask hard questions. The X-Files isn't conventional.

Nor was the trial.

Several of the plaintiff's key witnesses refused to testify at the last minute. Among them were a husband and wife who had worked for FMC and knew about the coverup. They called Svalya and told him that private investigators had come to their home and the homes of their elderly parents, and that they were afraid of losing their jobs if they helped out.

Another key witness, Air Force Major Robert Fredell, was an expert on aluminum welding who taught at the U.S. Air Force Academy. After reviewing statements by FMC welders and documents sent to him by Svalya, Fredell in a deposition stated his belief that the Bradley was dangerous and that it should have been made of steel, which would have floated but wouldn't have had the problems of aluminum.

When asked at deposition why he chose to assist in the case - at some risk to his career - Fredell responded, "The evidence I've reviewed indicates that a wrong has been done to the U.S. Armed Services, the U.S. government and the American people. At the Academy we talk about core values, about integrity, about service before self. I don't appreciate the fact that people are doing wrong things. I support an effort to right a wrong, and I believe that's what I'm doing now.

Fredell was to be a critical expert witness, but to the surprise of the plaintiff's team, the Air Force at the last minute refused to allow Fredell to testify - even though the case was for the benefit of the government, as Svalya notes.

The plaintiff's lawyers convinced the judge to admit some of Fredell's deposition testimony, which proved very persuasive to jurors, according to their post-trial interviews. (Fredell's statements relating to "righting a wrong" were not admitted.)

Nor was the plaintiff's team allowed to show jurors a 1984 video of a Bradley at an army base suddenly sinking as it tries to mount a riverbank. On the tape, two men can be heard shouting for help as the rubber curtain around the tank is swamped and they are rescued by a boat. Svalya says the judge ruled the video as too incendiary.

But another video - offered by the defense - proved to be a windfall for the plaintiff's side.

The video - which had no soundtrack - shows a Bradley in 1984 entering a test tank as water pours over the rubber curtain, then leaks into the tank. On the witness stand, the FMC employee who drove the Bradley for the test said it was moving at 7 miles per hour. He said that 7 mph is the speed at which they first encounter problems; thus, the Bradley was safe to enter water at 5 mph as stated in the field manual.

But Black and Bartlett recognized the video, and realized that there were two versions: one with sound and one without.

On cross-examination of the driver, the plaintiff's side played the same video - with the soundtrack. Clear for all to hear is a conversation between the driver and the control tower. As the water poured over the rubber curtain and the vehicle stalls, the tower is heard to exclaim, "Wow, and that was at two-and-a-half miles per hour?" The driver answers, "Yes!"

Black says it was a high point of the trial. His theory is that FMC figured the plaintiff's team wouldn't recognize the video from the 200 or so it produced during discovery.

"That's what you get when you do your homework," he says, chuckling.

Other key witnesses for the plaintiff included former FMC welders who testified that they were never given enough time to properly weld the tanks, and a middle manager who found leaks and was ordered to hide them.

And there was Boisvert himself, who had worked as a landscaper and at other odd jobs during the 12 years after he was fired by FMC. During post-trial interviews with the plaintiff's team, jurors noted he was an excellent witness.

"To convince a jury in a case like this, where you have a whistleblower, the jury absolutely has to believe the whistleblower. If they don't believe him, they won't believe in the case," says Bartlett.

"We were blessed to have a client who knew what he'd seen and wanted to do the right thing, He was very credible in the way he told his story. He was not emotional, with a few exceptions, and came across as the engineer he is.



Four-Star Defense

But FMC had one very strong witness, who had not been on its witness list.

The witness was a retired four-star general who testified that the Bradley was an excellent fighting vehicle that performed beautifully during Desert Storm.

"He looked like a general and talked like a general, and the jury was riveted," recalls Black. "He said this was a great vehicle that went over all this tough terrain."

"Our [response] was this is irrelevant," says Black. "[We challenged them to] bring in someone who says he successfully swam it though the Red Sea or even a pond. But the whole atmosphere of the case seemed to take on a different feel during his testimony. We were afraid he might have dealt us a real blow."

The general also testified that the Bradley was swimmable. But most important, he stated it didn't need to swim because the Army never intended to use it to cross rivers.

Things looked bleak for the plaintiff's side. But in the middle of the trial, a former Army officer contacted Svalya, said he'd heard about the trial, and volunteered to testify.

Dan Beach, graduate of West Point, was stationed in Germany about the same time as the general, Svalya notes. Beach had six Bradley's under his immediate command. Called as the plaintiff's only rebuttal witness, his testimony proved decisive, jurors said later.

Beach testified that the swim capability of the Bradley was critical to the N.A.T.O. Defense strategy in a European war. He carried plans on him during his tour of duty, and the strategy was to blow up bridges in Germany, with most U.S. and allied troops in the near side of the rivers and the Bradleys on the far side holding off the enemy.

Thus, for the Bradleys to be able to join the bulk of the U.S. forces, they would have to safely cross the water. Failure to do so would cost American lives.

"Once he explained this to the jury, and drew diagrams on board, it brought it all home that this wasn't theoretical. I think that took away FMC's defense" that the swim capability wasn't important, says Bartlett



Meticulous Jury

The jury deliberated for 12 days before finding that FMC defrauded the government about the Bradley's swim capabilities and lied in its technical manuals which said the tank could safely enter the water at 5 miles per hour. It also found that FMC submitted more than 13,000 false claims - invoices, procurement documents, etc. -- over a 12-year period.

It awarded about $125 million in damages, which with mandatory penalties reached about $175 million. For acts occurring prior to October 1986, when the False Claims Act was amended, these damages were doubled; for acts occurring after 1986, the damages were trebled, for a total award of between $350 million and $500 million, the plaintiff's say.

Boisvert wept when the verdict was read, Svalya says.

According to Black the judge praised the jury after trial, thanking them for their meticulous attention to detail and careful deliberations. That's one reason he was so surprised that the award was reduced.

The plaintiff's side - who split about $1 million in costs among the three firms - considers the long battle a resounding victory. Even though they expect a tough battle should it be appealed, they say getting the truth out was worth the fight.

Copyright (c) 2006 Phillip G. Svalya, Inc. All Rights Reserved.

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