El Paso Bar Journal
As Told to Stephanie Townsend Allala
In the previous issue, Jim Scherr set the stage for the conclusion of this story by introducing the parties to this tragic story – Dr. Juana Mendoza, her younger sister Lorena, who died working for Contico in Mexico, and the manager of Lorena’s employer, Gandara. Jim Scherr agreed to take the case, seeking damages for the conduct of Contico, which he alleged lead to Lorene’s death in Mexico. He asked University of Texas Law professor Russell Weintraub to assist him with the conflicts of laws issues in the case. He asked Roberto Oaxaca and A.B. Bernal to help him in trial. John McChristian with Ray, Valdez, McChristian, and Jeans represented Contico.
MS. TOWNSEND ALLALA: What happened in the five years between 1992, when the case was filed, and 1997, when the case settled, that made you realize that this might be the only case of its kind that you would ever handle during your lifetime?
MR. SCHERR: A lot of things happened, Stephanie. Every step of the way, we were — we were fought, and fought hard.
MS. TOWNSEND ALLALA: But why is this case different?
MR. SCHERR: It was one of the first times that a U.S. company was held responsible in the United States for its actions in a foreign country. The basic theory is, if we set off a rocket in the United States and that rocket lands in a foreign land, causing damage, the U.S. company that fires the rocket should not be exculpated and immune under U.S. law.
There were many, many motions that were filed. The Defendant filed a motion to apply Mexican law.
Had they won, there would have been no recovery whatsoever for the family, Under Mexican law, the Mexican Social Security system is the sole recovery for damages. That was the law at that time, which meant that the family of this single lady, burned alive, would receive zero compensation.
Let me tell you the facts of the case.
We took the deposition of the –I think it was captain of the Mexican state police. Contico hired him to be their consulting expert in the case. When he left the Mexican judicial police, he took the file, including photographs, with him.
I took his deposition in our case and we learned that on the way from Juarez to Palomas the alleged drug dealer Dario Figueroa was with a bunch of his friends and blocked the car about 40 miles outside of Palomas.
They took Lorena Mendoza and the security guard driver out into the desert, both alive, and they tried to do something with Lorena. The security guard driver tried to interfere and they shot him. The security guard driver was still alive, when they shot him.
They put Lorena and the security guard driver in the trunk of the car, closed the trunk, poured gasoline on the trunk, set it on fire. Dario Figueroa told the police, that one of the drug dealers was dancing on the roof of the car as they poured gasoline on the car. They left it burning out in the desert. It was burned beyond recognition. The paint was gone, the tires were melted; it didn’t look like a car.
A farmer walking along the roadway saw smoke a day or 2 later and notified the judicial police. The police went out at night, and they had a video camera. You can see them take a jack and put it in where the lock was supposed to be because the lock was gone. You can see with the light on it, like a scene from the Blair Witch Hunt movie. The police pop the trunk open and all of a sudden you see these ashes flying out from the trunk.
The camera shows the police looking around and they reach into the trunk, and then the police raised up something from the trunk.
Then they lift out the skeleton of two carcasses where you can see the ribs and the- the spine and the skull, and they lay them on a tarp on the ground. The neck of the driver was broken. From inside the security guard driver had tried to break open the trunk because the trunk had a dent on the inside and his neck was broken.
Contico knew what happened but they didn’t tell the family what occurred.
The videotape was put into evidence at trial. That’s an important fact.
We went together with Russell Weintraub into the courtroom to argue the case. At that time Jack Ferguson was the judge of county Court 3. Judge Ferguson was pretty conservative.
Russell Weintraub argued the case and somebody from Ray McChristian argued for them. I think it was John McChristian. Russell Weintraub argued why Texas law applied, and he was spectacular. He started saying, “And in any Supreme Court case of this. . . .” and “My Supreme Court case of that…”
MS. TOWNSEND ALLALA: Arguments he had made in the United State’s Supreme Court.
MR. SCHERR: Yes. “And this case says that…” and, “you know there’s no question that Texas law applies.”
And John McChristian came in with, “This case says this,” and “This case says that,” and so on.
The courtroom was packed. You could feel the tension.
After all the lawyers argued, Judge Ferguson said, “I find Texas law applies.”
We came over to my office after Judge Ferguson’s decision. Dr. Weintraub’s daughter was with him. He gave me a huge hug and he told me this was one of the most important cases he’d ever done in his lifetime.
When Russell retired from U.T. Law the University held a function for him, giving him many honors and awards. He called me and asked me if I would come as his guest –
MS. TOWNSEND ALLALA: It must have been right after I took his Conflicts of Law class at the University.
MR. SCHERR: — and he asked me if I would be a guest with him at his table because it meant so much in his lifetime to participate in that case.
MS. TOWNSEND ALLALA: Okay. Keep going.
MR. SCHERR: So I hired Pete Palmer. Former head of CIA Central America as an expert and got the case lined up to go to trial. I asked my friends Roberto Oaxaca and A. B. Bernal to try the case with Sam and I because we wanted Roberto and A. B. to represent Lorena Mendoza the victim, her estate. Sam Legate and I represented the parents.
So we got a photograph, blown up to 24 by 36, of Lorena. She looked like an angel, with a pink shirt that her parents had kept, and we put it in the chair next to Roberto where it stayed the whole time during trial,
I asked my client, “What do you want for this case, Mr. Mendoza?” He said, “There’s nothing’s going to bring my daughter back, I want it to never happen again. Never to happen again. It’s not money that matters to me; it’s my daughter that I care about.”
Before the trial began, Judge Javier Alvarez had succeeded Judge Ferguson as the judge of County Court 3, and so Judge Alvarez presided over the trial of this case. It was one of his first complex litigation case as a Judge. And he will tell you that this was probably one of the most important cases ever tried in his court.
Well, we went to trial. I put on Contico Regional Manager Gandara as the first witness. I went through his story, I went through and presented how they covered up, how they presented things, how they really did wrong by this woman, by this family and by our society,
When we finished putting on our evidence, McChristian called his first witness to the stand. In so many words he said, “You know, this is the way business is done. We didn’t know this would happen.”
I’ve had never been in a trial where I saw a jury laughing at that point. With the first witness, they were laughing at what the company was saying. I knew then that jury was going with us.
McChristian quit calling witnesses, and rested after the first witness.
We then broke to prepare for argument.
And that day or the next day, McChristian came to me — I don’t remember, I lost track of time — and he said, “What do you want, Jim?”
I said, “I want a verdict,”
He said, “Well, my clients are here and they are willing to settle the case.” Which meant they were willing to pay a lot of money.
So then Roberto and Sam and A.B. told me that we needed to discuss settling the case.
MS. TOWNSEND ALLALA: They wanted you to take the money.
MR. SCHERR: Yeah, they did. So I said, “Well, I’m going to go talk to Mr. Mendoza and see what he wants.”
I walked into the courtroom. I asked Mr. Mendoza, “What do you want? They are willing to pay whatever you want, whatever you want, to settle this case,”
He said, “I want justice. I want my daughter never to be forgotten. And I don’t want this to happen to anyone else.”
I said, “You know, Mr. Mendoza, we can’t — we can’t get that in a settlement or court case.”
And then finally — Mr. Mendoza said just tell them I want a judgment.
And the other lawyers on our team talked money with our client. But our client said, “I don’t want just money. I want more than money.”
I talked with Mr. Mendoza. He said, “What I want is a statue built in the honor of my daughter in Ciudad Juarez, and a fund for maquila workers to educate them so they can have a better future.”
I conveyed this to McChristian.
Mr. McChristian said, “Jim, we can pay money. We can’t build a statue. We can’t do that, that’s not something the insurance company or my client can do.”
I said, “Well, you call the owner of Contico on his boat in the Caribbean” — he had one of the largest boats in the Caribbean – “and tell him that’s what our client wants.”
Mr. McChristian said, “You know, we can set aside a fund for you all to have that occur.”
My client wasn’t really sure that he wanted that. He wanted to make certain that they took care of building the statue.
We reached an agreement on a monetary amount to settle the case that was satisfactory, and after lengthy discussions, we agreed to a sum of additional money to establish a fund to build the statue in memory of Lorena.
The settlement was announced to the Court and Judge Alvarez dismissed the jury.
But in spite of the settlement we still wanted to make our final arguments.
Sam Legate and Roberto Oaxaca were going to make the beginning arguments on behalf of the parents and on behalf of Lorena’s estate. After they argued, the defense would argue. Instead of doing a rebuttal, I planned to do something I’d never done before: I would walk up to the VCR, turn on the tape, say, “Your Honor, this is my final argument,”
And I would play the video.
It didn’t happen because the case got settled.
But Judge Alvarez let me make my final argument anyway. We took the video and all the equipment to the Ceremonial Courtroom on the top floor of the Courthouse, and people came in to watch the final argument. The courtroom was packed. We played the video with the jury and with everybody there. It was a powerful, powerful case, and tearful.