How Big Data and Authentic Clients Won a $101 Million Verdict, with John McCabe

Welcome to Voices of NCAJ.

We're talking to members of the North

Carolina Advocates for Justice about what

it means to be a trial lawyer, what it

takes to be great at the practice of law,

and how being a part of NCAJ

enriches their lives and careers.

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Welcome everyone to Voices of NCAJ,

the podcast for the North Carolina

Advocates for Justice. I am Amber Nimocks,

your host and deputy director

of NCAJ. Before we get started,

I'd like to thank our Circle of Leadership

members for supporting NCAJ's mission

and this podcast. If

you're watching on YouTube,

you can see a list of circle

of leadership firms at the end.

To find out how your firm can join

the circle, go to ncaj.com/circle.

My guest today is John McCabe.

He is the principal attorney at the law

office of John McCabe and Carrie and a

past president of NCAJ. This spring, John,

along with Brian Davis, Beth Davis,

won a record-setting jury award

of $101 million for a pair of men

seriously injured by the collapse of

a retaining wall in Hendersonville,

North Carolina. And this June

convention, NCAJ Convention,

John was honored with the organization's

Founders Award. It's the highest honor

that the NCAJ gives and recognized

as extraordinary service to justice

and to the advocates for justice in

the tradition of our founding members.

John will present a debrief of the

record-breaking trial for members of

NCAJ's Auto Torts section on

Wednesday, September 16th.

If you'd like to be in on that,

please make sure that your membership

in NCAJ and Auto Torts has been renewed

for the 2026-27 year at ncaj.com/join.

John, welcome back to the podcast.

Hey, Amber, it's great to see

you. Thanks for having me.

Congratulations on this incredible

win in this trial and on being

honored with the Founders Award this June.

Fortuitous bit of timing when you

found out about the award, right?

We were in the middle of trial. It

was a six-week trial that we were in.

We were probably four weeks

into it. I was exhausted, Amber.

I was working 21 hours a day and just

was beat up and was kind of just running

down. Mentally, physically,

emotionally exhausted.

And I kept getting a phone

call from Karma Henson.

Karma and David and I

are really, really close.

And Karma knew I was in

trial and I was like, "Man,

she's really trying to track me down."

I said, "Something must be going on.

Something bad's happening somewhere." I

actually called her on my way to court

one morning. It was early at like eight

o'clock, court at eight in the morning.

And she informed me that I was

getting the Founder's Award,

which was a complete surprise because

I was on the nominating committee,

never got mentioned.

So it was great to have that brought

kind of tears of joy to my eyes. Kind of

gave me a burst of adrenaline,

a little push that I kind of needed to

help me with some of that exhaustion I

was going through. So the case, actually,

it was five and a half

years from start to finish,

from the time it happened until

we got through the jury trial.

It'd been in litigation for four years.

The clients came to me. I'm fortunate,

I have a bit of a statewide practice and

do a bunch of stuff up in Western North

Carolina.

And I had another client

up in Hendersonville who

was close to this family.

And when this happened, they got in touch

with each other and reached out to me.

So within several days

of this wall collapsing,

the family had reached out to me and

had retained me to be their attorney.

Fabulous. I'm so glad

that worked out like that.

And this was the end of four years,

five years of working on this case.

How did this case come to you?

That's right. So there

were four injured workers,

all of whom were represented by NCAJ

members, all separately represented.

But yeah,

there was the gentleman who was standing

very close to my client who died.

His name was Marcelino. He was

represented by Michelle Clifton.

Then I had one of the injured workers.

Brian Davis had another

one of the injured workers,

and Meredith Hinton did as well.

And this was one of the other

workers onsite lost his life,

correct? There's a lot of

information on our website.

Lee Rodio did a terrific verdicts and

settlements report that if folks want to

get into the really technical

details of it, they can look that up.

You will also be doing a

trial debrief, as I mentioned,

where I would imagine you'll

talk about some of that.

But what was really sort of interesting

to me in reading about this case was

that it was remarkable not just

for the size of the verdict,

but also for the theory of the case

that you pursued and how you framed

it. How did that work?

How did that happen?

Let me tell you what the defense theory

was because it kind of ties into your

question. The defense theory was this

was a masonry wall built by a masonry

company by masonry workers,

and the masonry wall fell.

And it was a masonry problem.

It was a construction problem

and nobody else's problem.

So that was the defense.

And all the injured workers were the

masons who worked on the project.

So we had an employer negligence issue

and then we had a contrib issue as well.

The other issue that we faced

was the defense was saying,

"We hired the masonry company.

We relinquished control over this

job site to the masonry company.

This was all their fault and we had no

duty here." The way we attacked that

was by establishing that that

was not in fact the case,

that the people in charge of the project,

not the ones necessarily

building the wall,

but the ones who were coordinating

it, scheduling it, directing it,

supervising it, basically acting as

the general contractor on the project,

were the property owner and more

importantly, the property owner's tenant,

which was Hijoka,

which is the largest privately owned

plumbing supply company in the country.

They call their stores profit centers

and the profit center manager in

Hendersonville was the person that

we claim was in control of the entire

project, that he made the decisions, he

hired the folks, he sequenced the work.

He was the one that contributed to

making sure there was no engineering,

that there was no permitting.

And then most importantly,

after the wall was built and before the

concrete that had been poured in it to

kind of stabilize it, it cured.

He disregarded recommendations

and backfilled it with 210 tons of

backfill before it was ready

to withstand that load.

So we were able to show that he

was the one driving the thing,

that this was a Hajoka project.

It was the tenant's project

who was running everything.

And that's kind of how we dealt

with that defense approach.

And it took the jury

35 minutes to decide 16

liability issues and also pick

a foreman, like 35 minutes.

That is incredible.

That sent such a message, at least to us.

I'm not sure if the defense

saw the significance of that.

And this was four weeks in. Okay.

So after four weeks of testimony,

the jury got the case. They knew

it, and we sensed that they had it.

But the fact that they were able to

return the jury verdict like that,

and they filled out the jury verdict form

exactly like we had suggested they do

that as part of our closing argument,

showed us right away that they got it.

What was interesting,

they also decided part of that there

was a gross negligence issue that was in

that jury verdict and they

checked that. So once we got that,

we knew not only were we okay on

liability and we were going to be okay on

compensatories.

We also know that when we got to the

third phase of the trial punitive damages

that we were going to get punitive damages

as well. It was a jury that got the

case pretty clearly.

They did not get fooled by some of the

defense arguments and they saw things

really, really clearly. They were

an incredibly attentive group.

How did you get this jury? That's

one of the key questions, right?

Everybody wants to know

how to get this jury.

We had a magnificent jury.

I mean, they ruled for us,

so certainly I'm going to

say that. Even if they did,

and I would still speak really highly

of this jury because they were just so

attentive. They took their job so

seriously that after the trial was over,

after six weeks,

the judge as he was thanking them started

tearing up and just was telling them

that they exemplified what our justice

system was supposed to look like.

So how did we get them? That's

the big question, right?

It took seven days of picking the juries,

seven court days to find the jury.

We went through three separate jury pools.

A ton of jurors were getting excused for

cause and tongue were getting excused

for hardship. So that's why it took

that many. Because it was multi-parties,

each side had preemptory challenges.

We had 12 peremptory challenges on both

sides of the case. There were multiple

defendants and then multiple plaintiffs.

Part of what we did was we did a lot

of big data research on the case.

We did a lot of empirical

studies going into the trial.

And based on the big data studies we ran,

we kind of knew what type of person we

wanted to have on the jury and what type

of person we didn't want

to have on the jury.

So as we were doing jury selection,

we actually had basically a scorecard

almost. It was like analytics,

kind of like Moneyball

with the baseball stuff.

And we were literally scoring

jurors based on the criteria that we

had determined based on

our big data studies.

And then what we were doing was using

those numbers, whatever the score was,

to help us decide whether or not to

keep that juror or excuse that juror.

It was really a neat way to do it. I've

never done it that way before in terms

of picking a jury.

And it was great because what I found is

there were jurors that I would've left

on the jury. I felt with,

just felt good about who by the numbers

weren't good for us and we got them off.

And there were probably some other

jurors who I probably didn't feel as

connected to and a little bit more

worried about. The numbers were good.

The data was good on those folks.

The data points were really good.

So that's how we got our jury. It

was a really, really good jury.

I think the defense

thought that they were.

We were in Western North Carolina and I

think they were anticipating a certain

type of jury and the jury we got may have

been the exact jury they anticipated.

We felt good about the

jury once we had it picked.

You say you never used this big data

approach to jury selection before,

but you decided to trust the numbers

instead of solely trusting your gut

this time. What flipped

the switch for you?

That was a bit of a process.

I got to tell you about my

experience with big data.

So there were some members of our

trial team, particularly Brian Davis,

who is my former law partner

and is like a brother to me.

He had used big data before and kept

pushing the big data and said, "Trust it,

trust it, trust it." I didn't have

exposure to big data and I was highly,

highly skeptical of it. I was just

like, I like what it's saying.

I like the people who are

doing the work for us.

I have no reference point for this

other than just believing my former law

partner saying, "Trust this, trust this,

trust this." As we got into the

process, even going through the trial,

I was in the back of my mind was

going a little skeptical of it.

And we'd shared our big data

with the other side. I mean,

we told them we'd run these studies.

We gave that to them during

one of the mediations.

We had our big data presentation

as part of our mediation,

and the other side completely discounted

it. They completely discounted,

which I kind of understood at the

time because I didn't fully trust it.

And again,

was a little bit skeptical of it because

I didn't have any reference point to

it. But I did trust when Brian's

saying trust the data, trust the data,

I trusted the data, but did it with

a little bit of pause in my gut.

But as we got into the trial and got

the jury, I felt good about the jury.

I was like,

"That was really good." The big data

showed going into trial that we had a 90%

chance of winning.

And they also showed us what the potential

jury verdict was. What I'd always

been told is don't necessarily trust

the data you're getting from say a focus

group or something like that as part

of your pretrial prep because it's not

really accurate in terms of how

a jury's actually going to be.

But this big data was actually

helpful in that regard.

The other thing that we did was the folks

that did the big data for us also gave

us data on the reliability

of their big data.

So they showed us their success rate

and what other cases where they had

predicted a particular outcome and

then showed us what the outcome was.

And it wasn't just one or two.

There was a lengthy list though.

So I had some data to

support the big data.

I was a little bit not completely

bought in, but by the end of the trial,

I was completely bought in on big data.

Now I will talk about big data until the

cows come home. It's just something

different and it was accurate. It worked.

Trust the data.

Trust the data.

Your client's testimony was also

a big part of this case, right?

My clients, I love my clients, okay?

Beto and Lupito. Beto was the worker.

His formal name's Alberto, but he

goes by Beto and his wife is Lupita.

They're just great people. Always

thankful, very humble, honest,

kind of shy people. And we got them

up on stand. Beto testified twice,

testified once during liability and

then once on compensatory damages.

And when Beto got up there, he

testified through an interpreter.

English was not his first language.

We asked the jury about that.

Is everybody okay with him

testifying through an interpreter?

And the jury was fine with that.

When Beto got up and started talking

about what it was like for him to be

trapped under that wall and

buried alive for an hour,

he had everybody in the courtroom

crying, including the interpreter.

It was honest and it was raw and it

was unscripted and it was vulnerable.

Vetto had only talked

about that experience.

He had never talked about

that experience with anybody.

Never talked about it with his wife,

never talked about it with

any of his medical providers.

He kept it bottled up inside.

First time he ever testified about it

was or talked about it was during his

deposition. And then the second time

he did it was in front of the jury.

And all the emotion came

out and it was authentic and

real and impactful. And again,

had everybody in the courtroom just

kind of in tears as he described this

ordeal of being buried alive,

face down, unable to move,

thinking he was going to die.

And he was conscious and his teeth were

knocked out. He had blood everywhere.

And he was describing this

really graphically and very

passionately, but again,

unscripted. It was literally just him

talking about it. His wife, Lupita,

was amazing as well. She had

a loss of consortium claim,

which was really the first time I had

tried a loss of consortium claim because

usually I don't bring those.

This was the one case where knowing who

my clients were and knowing what the

injuries were, I believed in this.

We actually ran big data to determine

whether or not we should actually try the

loss of consortium claim or not,

whether it would benefit the

case or detract from the case.

And the data said it's

good, keep it in there.

Lupita got up on the stand

and Lupita, like her husband,

hadn't really talked about things.

And I remember preparing

her for her deposition.

She had a real hard time kind of reliving

and finding the words to describe

everything. And we got her up on

the stand and she was unbelievable.

So she is a kindergarten

teacher in Hendersonville,

and she got on the stand and she became

a kindergarten teacher. And she got up

there and this was all natural.

That's the most important part of this

from an attorney standpoint. My clients,

they're authentic selves.

They were being them.

They weren't trying to act

and be anybody different.

Lupita got on the stand and had the jury

laughing and crying within minutes of

each other. And she would talk about.

One of the funny things we asked

her was when you and Beto met,

they were teenagers when they met, was

it love at first sight? And she went,

everybody's expecting yes, it was

love at firs sight. She went, no,

look at Beto. He's this short, skinny

guy and look at me, I'm overweight.

And this was not a good fit at all.

So she had the whole jury

kind of laughing about that.

And then she started talking

about what it was like.

She was initially told that

Beto had died, which was big,

and she's talking about that.

And then the other part of this, Amber,

was this happened during COVID.

An hour after she's told her husband

is dead, she gets a call saying, oh,

he's actually alive.

But she can't go into the hospital

and eyeball him to confirm it.

So she's standing outside Mission

Hospital in Asheville in the cold,

unable to get in there,

and doesn't know for sure that

her husband's still alive.

And it was weeks before she could

get in there to actually see him.

And what was interesting is after Beto

was hospitalized for about a month,

and then when took him by

ambulance to inpatient rehab,

he's getting out of the ambulance,

he's being wheeled on the stretcher.

His wife and his two young children who

are two and four years old at the time

are standing in the parking lot.

They're across from the parking lot

waving at the dad. It's the first time the

kids had seen the dad and the firs time

Beto had seen his kids since this had

happened, and they couldn't get

close to each other because of COVID.

And that all came out during Lupita's

testimony. It was really powerful.

You didn't know exactly how that was

going to go since you had only heard this

testimony through the

deposition, right? I mean,

so it's a different thing to have

that deposition and then to have that

interaction with the jury.

During the deposition, it's the

defense lawyer asking the questions,

and if certain information doesn't

come out, it doesn't come out.

If a certain question's not asked.

When we got in front of the jury,

and certainly as we

prepared more for trial,

I had spent a ton of time

with Beto and Lupita. One,

because I love being around. They're the

type of people you want to be around,

so I got to know them.

And as we were preparing,

you start diving into

things a little bit bigger.

And we talk about the kids being in the

parking lot when Beto's being wheeled in

from the ambulance to

go to inpatient rehab,

and that suddenly becomes so

powerful. I knew them so well.

When she was testifying, we

were literally just talking,

although she made sure that

she talked to the jury.

It was such a conversation

and it was not scripted,

and we weren't reading off of it.

We just talked. It just came across.

It was just so natural and

authentic and unscripted.

Not only were the clients great, they

delivered it in a way that was authentic.

And it was completely consistent with

what our approach been to the entire case

is we have to be credible

across the board.

They really did come across as

really credible. I'll tell you this,

after the jury got done, we all went back.

The jury stuck around

for hours to talk to us.

Beto and Lepita came back and met the

jury and everybody was hugging everybody.

It was one of the most,

maybe the most powerful moment

I've ever had as a lawyer,

was watching Beto and Lupita,

that jury after we resolved the

case and were able to talk to them.

I personally mediated my case four

times. We mediated it once pre-suit,

once court-ordered mediation.

After that failed,

there was another attempt to try to

settle with just me. That failed.

And then there was a global mediation

the Saturday before the start of trial.

At that Saturday before trial mediation,

the wrongful death case settled.

Three days after that, Meredith

Hinton settled her case,

and that left me and Brian.

So we had, on my cases,

four failed mediations with

three different mediators.

We tried various different mediators too,

and just couldn't get the case settled.

And what you heard from the mediators

and the defense was you're never going to

see a verdict like that

in Western North Carolina.

That's exactly what we heard.

That was it the entire time.

There was certainly fights about liability

and fights about damages and things

along those lines, but it's just like,

you're crazy if you think you're going

to ever see these types of numbers in

Western North Carolina.

What made you believe that you would?

I'm coming back to the big

data. It was my skeptical,

yet trusting belief that the data was

right. I think the other thing, Amber,

and this is really important,

the defense basically forced

me and Brian to try our cases.

There's certain things I can't talk about,

but they basically forced

me and Brian try the case.

As we got into it and we

started to see the jury,

we paid a lot of attention to the

jury and we felt we had the jury.

I've also had cases before where

I felt I had the jury and didn't,

but I felt really good about the jury.

And then certainly when we

get that liability verdict

that you talked about and

the timing that we talked about, I felt

great at that point and was certainly,

that was a game changer for us. So the

data, certainly getting into trial,

feeling really good about your jury,

and then seeing how the jury

was reacting to the evidence.

There's so much more for us all

to learn from you about this case,

and we've got a couple of

ways for folks to do that.

They can go read Lee Rodeo's

account on the website,

ncaj.com/news/valdez,

or look for it in next

month's trial briefs.

And also they can hear you do a complete

debrief for our auto torch section

on Wednesday, September 16th.

And I'm sure that you will be talking

about this in many other places and to

NCAJ members and the wider

world at large, right?

It's fascinating.

I keep telling folks it was like a

movie and it was literally like a movie.

Sometimes when I'm talking

about cases, I go, "Well,

I'm probably boring these people."

This case is literally fascinating.

And the way it just kind of all came

together is absolutely fascinating.

It's like a movie.

So I had a lot of phone calls from people

and talked to a lot of people about it

and look forward to continuing

to talk to people about it.

It truly was fascinating.

Awesome. Well,

congratulations on the award and

on the case and to your clients

for staying in the fight and coming

out Victoria. So it's really awesome.

Thanks, John. Thank you.

Thank you for joining us on

this episode of Voices of NCAJ.

For more information on the North Carolina

Advocates for Justice and how to join

or support NCAJ,

please visit our website at www.ncaj.com.