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Tort “reform” rears its ugly head during every legislative session in almost every state. Calling it “reform” is a stretch. What it should be called is fraud. It’s a crusade by the wealthy to avoid accountability for injuring others.
Reform does not benefit the general public and results mainly in stripping Americans of their rights. The laws are pushed by well-funded, anti-consumer groups like the U.S. Chamber of Commerce. Their goal is to boost insurance company profits and protect incompetent doctors and those who manufacture dangerous products from liability. They promote propaganda concerning a non-existent “lawsuit explosion” resulting in seriously injured consumers picking up the colossal tab created by medical mistakes in the name of cheaper malpractice insurance for incompetent and negligent doctors.
Studies from around the country have shown that when damages are capped, medical malpractice rates do not go down. The “savings” generated by so-called reform does not go to the doctors, but to their insurance carriers. Studies also show that tort “reform” does not reduce health care costs.
What tort “reform” does, is place the burdens of negligent behavior on the young, the poor and those who suffer the most severe injuries, without benefiting anyone but those who profit from reduced injury awards and settlements.
Do not be taken in by the lies and the language. Tort “reform” is not reform; it is a scam preying upon the public.
By James McCormick
With nicer weather approaching, we thought we would remind you about motorcycle safety.
Unfortunately, we see far too many motorcycle injuries at MBC. Motorcycles are dangerous; there is no question about it. To make matters worse, a rider’s margin of error is often much less than a driver of a car and the rider is much more susceptible to injury without the car’s protective body. Despite these risks, I still ride motorcycle avidly. Whether you take to the road on a bike or in a car, there are some things you can do to help protect yourself.
Motorcycling is a wonderful experience everyone should have the opportunity to enjoy. Unfortunately, even the most vigilant riders sometimes are injured. If you or a friend or family member is injured in a motorcycle wreck, call MBC. We have years of experience helping injured riders and being a rider myself, I understand the dynamics of motorcycling. Be safe out there.
by James McCormick and Jeremy Johnston
MBC attorneys Jeremy Johnston and James McCormick
In February my partner Jeremy Johnston and I tried a motor vehicle case in Pierce County. Our judge was Hon. Vicki Hogan. After five days of trial, and a day and a half of deliberations, the jury returned a verdict for our client of $223,700.
The case was a modest and fairly typical motor vehicle case. Liability was clear and admitted. The defendant had rear-ended our client and pushed him into the vehicle in front of him. The property damage was minor and the defendant was insured by Allstate.
Our client was 61 years old at the time of the collision. He lived in Sumner with his wife of 40 years. He had a fairly long documented history of “neck pain” in his records. He was a union pipe fitter and HVAC technician by trade; however he had been out of work for about 4 months before the collision. He was set to return to work in a local Tacoma shipyard in the days following the collision. Our client had anticipated working that job for another 4 years until he reached age 65, when he planned to retire. Unfortunately, he never returned to work.
Our client’s neck injury was the focus of the case. He had well documented degenerative disc disease after a lifetime of working in heavy industry. The collision caused an aggravation of his degenerative disc disease with localized neck and shoulder pain and some occasional nerve irritation which he would experience in his hands. He had treated with his family doctor who had made referrals for physical therapy, chiropractic, and massage. His doctor had also ordered an MRI, EMG, X-rays and referred him for a surgical consultation, which ruled out surgery. Treatment spanned approximately a year and a half and produced about $25,000 in medical bills.
The lost income and wages in the case was fairly significant. The family doctor had ordered our client off work and also not to wear his hardhat and equipment. Due to his occupation, our client’s wages fluctuated with the availability of work. An average of the three years prior to the collision came to around $35,000 per year. Multiplied by the 4 years of missed work, and we had about $140,000 in lost wages.
Future economic damages were based upon the lost value to our client’s pension had he worked the final 4 years of his career. A union representative testified at trial that leaving the workforce after the collision probably cost our client between $100 – $130 per month for the rest of his life, which would be about 16 years. This penciled out to be between $19,000 and $25,000 in lost future economic damages.
Outside of work, our client had been forced to give up other things that he loved such has hiking, camping, and riding his motorcycle. He also was not able to carry out daily activities around the home like he had before, particularly fixing things for families and friends.
Allstate hired Dr. Patrick Bays to conduct a DME and Mark Sutton, D.C. to perform a records review. Both went on a length about our client’s “longstanding neck conditions.” Their strikingly similar conclusions basically were that our client has suffered a “minor” cervical sprain, had symptomatic pre-existing degenerative disc disease, and that he was “magnifying his symptoms” which had “no objective basis.” Each cut out client’s treatment off at 6 months post collision. Dr. Bays did however relate approximately $14,000 worth of treatment to the collision within those 6 months.
Going into trial, Allstate’s top offer was about $32,000. Naturally, Allstate didn’t accept any of the wage loss of economic damages. Allstate’s party line was pulled right from Dr. Bay’s DME report. Our client had reasonable expectations and would have settled his case for significantly less than the verdict eventually returned by the jury. Allstate never gave him an offer that made going to trial a tough decision.
As trial approached, we suffered a couple of lost trial dates. It was extremely frustrating to have to shuffle and reschedule witnesses repeatedly. Despite the inconvenience (and extra cost), we were adamant about having all of our medical witnesses testify live in trial. On the third try, we were able to finally lock in a date that went forward.
Our approach to this trial was keep it simple. Allstate was now on its third defense attorney and hadn’t put much effort into the case. We hired Dr. Daniel Brzusek to examine our client and testify at trial as a counter Dr. Bays. We planned to call our client’s family doctor who had treated our client for years before and after the collision. She had never testified in court before. Other witnesses included a union representative, a friend, our client’s wife, daughter and mother-in-law.
We had about 20 minutes per side for jury selection. It has hardly enough time to even speak to the first 20 jurors. We tried to flush out jurors who seemed opposed to lawsuits and suing for money. We also discussed probability and making decision without being entirely certain. We really had no time to introduce the themes of our case, but we did manage to introduce the idea that the case was about someone who had prior injuries. We exercised our three strikes. Allstate struck two jurors who had been injured in car crashes and seemed to have had bad experiences with the process. One juror more or less struck himself for cause and we had a jury. We had a fairly even split of men and women. We had two retired engineers, an accountant, and several other professionals.
Jeremy’s opening was short and concise and took less than 10 minutes. We used no PowerPoint or visuals. We wanted to be the first to tell the jury that they would hear a lot about the fact that our client had prior neck problems. We did not want the jury to think we were trying to hide this at all. Instead we embraced it. Jeremy explained to the jury that they would hear that the biggest loss was the fact that our client couldn’t go back to work. Finally, he explained that we would be asking for a number over $100,000 at the close of trial.
Allstate’s opening was predictable. It rehashed their same old themes: pre-existing injuries, symptom magnification, trying to retire on this wreck, and if there were any injuries, they were so minor that we were wasting the jury’s time with this trial. Allstate’s opening was so canned that the jury did not seem too impressed by it.
Testimony went well. We agreed to let Allstate put their experts on out of order. This actually worked out well because it allowed our final witnesses to be Dr. Brzusek followed by our client last. We presented our client’s injuries, symptoms and disabilities almost entirely through lay witnesses. When he finally testified we decided to have him even testify about his injuries. We figured the jury had heard enough about this already, so why risk making him sound like a complainer. Instead we had him talk about his work, his family, and the things he like to do before the wreck.
Allstate’s cross examination of the lay witnesses was heavy handed. The jury did not appreciate the approach. Allstate kept beating the drum on the pre-existing symptoms and would ask every witness about it as if it were some smoking gun. Allstate’s tactic had little effect, mostly due to the fact that we had already discussed this vary issue in direct examination and the jury could tell that we were not trying to hide anything.
The jury’s reaction to the experts was interesting. The jury really liked the treating family doctor. The fact that she had not testified before made her even more credible to them. She did a great job explaining the “before” and “after” which really illustrated our aggravation theme. The jury also really liked Dr. Brzusek. We had numerous slides with the anatomy of the neck and spine ready for him to use. He gave a great lesson on the anatomy of the neck and nature of our client’s neck injury. The jurors thought he was a great teacher and found him to be credible.
The jury completely disregarded Mark Sutton, D.C. His actual testimony was not great, but what really sunk him was the fact that he had never examined out client. I found some great stuff on his website about how he examines his own patients which made for great cross examination. As for Dr. Bays, it was quite apparent to the jury that he was a defense hired gun. They were skeptical of the fact that he does an overwhelming amount of defense work. In fact, some of the jurors’ questions to him were about the percentage of work he did for the defense. Cross of Dr. Bays focused mostly on the fact that he believed our client was lying about his symptoms. We knew the jury would have to make a decision as to whether to believe our client to Dr. Bays in the end.
Our cross examination of Sutton and Bays was again short and sweet. We made a few points and then got them off the stand. We figured the longer they are up there, the more trouble they can cause. Bays was happy to launch into long narratives, personal attacks on our client, and disregard the court’s orders on the motions in limine. He had to be watched closely and the jury picked up on it.
In closing, I focused on damages. I used a PowerPoint with mostly illustrative slides. I reviewed the collision and the injury in a matter of less than five minutes and then went right into how to calculate damages. After Dr. Bays had testified, we were going to move for a directed verdict on the treatment Bays had related, but Allstate agreed to enter a stipulated order instead. This gave us a high and low range on the medical bills. I showed the jury how to calculate our client’s past and future economic damages. Again and again I talked about burden of proof and how it was alright for the jurors to be less than sure on their calculation of damages. I also spent some time talking about what it means to have an aggravation and that we were here to talk about the worsening of our client’s injuries.
I explained to the jury that the law required them to award something for non-economic damages. However, I did not give them a number or even a suggested range. In only a couple of minutes, I explained the types of things they should consider when evaluating non-economic damages and asked them to use their judgment in arriving at reasonable number. The jury really liked this approach. When we spoke to them after the trial they all agreed that it made them feel like we trusted them and respected their judgment. Overall, I asked for around $175,000 in economic damages.
Allstate’s closing was as predictable as their opening. It was built on the “this case is not the big deal plaintiffs want you to believe it is…” theme. Allstate asked for $14,000 in medical specials and between $5,000 and $10,000 in non-economic damages.
The verdict included nearly all of the medical specials, and about 75% of the past and future economic damages. It also included $80,000 in non-economic damages and about $3,000 in future medical for a grand total of about $223,700.
There are a few lessons I took away from this trial. First, there is no substitute for a live witness. Do everything you can to avoid playing a tape to the jury. Next, be the first to tell the jury about the warts in your case. Don’t try to hide anything and especially don’t ever give the impression that you are trying to keep something from them. Also, treating doctors make great witnesses. Short, quick and concise is effective, especially on cross examination. Let the lay witnesses lay out your client’s symptoms, injuries and disability. Don’t be afraid to make credibility an issue between your client and the DME doctor. And finally, be nice to the witnesses. Jurors pick up on that.
Gravity’s Revenge
Three runners, Jaclyn Brant, 22 of Allyn; Wendy Davis, 45 of Bremerton; and Germaine Szewczyk, 59 of Bremerton sustained ankle and foot-shattering injuries, Davis breaking every bone in her foot, when they performed an obstacle called, Gravity’s Revenge during the Extreme K Mud Run in Silverdale last October. The obstacle consisted of a steep, two-story slope covered in black plastic leading down to a rocky stream bed. Water poured down the slope to increase the speed of the runners as they slid down.
Race operators failed to take proper safeguards when designing the course, then failed to shut down the treacherous obstacle in the wake of severe and mounting injuries. “…the event planners really were ill prepared for any type of injuries,” said Davis. Paramedics had to design and implement a rope system to extract injured participants from the bottom of the slide because the terrain was too steep to carry the injured to the waiting ambulance.
The obstacle was not shut down until emergency medical personnel treating injured racers requested its closure. “It’s stunning that race operators designed a course this dangerous and continued to send people down a dangerously designed chute this steep even in the face of severe injuries,” said MBC attorney, James McCormick.
“People participate in these events expecting safe, family fun and a thoughtfully designed course,” said Davis. “I have done these types of courses in the past and they have always been set up by professional organizations. The course on this day was not organized or managed in a professional manner and that resulted in many injuries.”
The lawsuit was filed against Royal Valley Farm, owned by Ron and Nadean Ross who volunteered their property for the course; the Silverdale Chamber of Commerce, which organized the event; and Macerich Inc., the California-based company that operates Kitsap Mall. The three parties were named in the suit because they were the entities listed on a waiver all participants were required to sign before participating in the run, and Washington law requires that any entity that may be at fault in an injury case must be named in a lawsuit.
The three plaintiffs signed the waiver acknowledging the risk and agreeing not to hold the above parties liable in case they were hurt, but their injuries went beyond the protection of the waiver, McCormick contends. Mud run organizers were negligent by allowing people to go down the slide after the repeated injuries, which is beyond the scope of the waiver.
“The event was life changing… and may prevent me from physically performing in the manner that I did before my injury – including the work that I perform… even the most mundane tasks such as going to the restroom, making a meal or running errands became very difficult,” said Davis.
Brant is studying to be a nurse and her injuries could make it hard for her to be on her feet all day.
With mud runs as popular as they are now, attention needs to be paid to how the courses are designed. As McCormick pointed out when speaking to KOMO News, “These are not Navy SEALs running through this course, these are normal people. People need to ask: ‘Have we really made sure that these obstacles are safe?’”
Jose Miranda
On December 11, 2012, MBC attorney Jeremy Johnston negotiated an $11 million settlement for six clients with the Department of Social and Health Services. Our clients were sexually, physically and emotionally abused by their foster parents, Jose and Juanita Miranda, and alleged that DSHS and a number of individually named social workers were negligent in the licensing of the Mirandas and in investigating multiple complaints from May, 1998 until February, 2005. In addition, three of the six plaintiffs allege that their civil rights were violated by the defendants.
“As a parent, if you think about the worst things that can happen to your kids, some of those things probably happened in that home,” Johnston said.
DSHS granted the couple a foster care license although Juanita Miranda had a long history of drug use and criminal violations as well as having her biological children removed from her home in California. In addition, the couple was on welfare and disability when applying to become foster parents in Washington in 1997.
“This home should have never received a license,” Johnston said.
“We regret that these children suffered at the hands of adults they had trusted to love and keep them safe.”~DSHS Children’s Administration Assistant Secretary Denise Revels Robinson
This and previous cases of child abuse and neglect have resulted in DSHS making changes to help further strengthen the focus on child safety, including:
• Conducting more detailed screening of potential foster parents, including multiple meetings with the family and the seeking endorsements from extended relatives, references and “collateral contacts.”
• Formalizing the process of placing children in foster homes by involving social workers from different programs, the children’s families and service providers.
• Improving the documentation of case activities to assist supervisors in overseeing child-abuse investigations.
• The creation of a standardized, automated process that ensures allegations of child abuse are “appropriately screened in and investigated statewide.”
“Obviously, what happened was terribly traumatic for them and continues to be,” Johnston said. “They hope to move on.”
After confessing his crimes to a nurse while hospitalized, an investigation was conducted and Jose Miranda ultimately was convicted of sexually abusing some of the children. He died in prison in 2009 of congestive heart failure. His wife died three years prior of a drug overdose.
You can report abuse or neglect of a child or vulnerable adult at 1-866 ENDHARM (1-866-363-4276) or, in an emergency situation, call 9-1-1.
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Angela Smith was a socially 
active, thirty-six year old woman, who loved the outdoors and spending time with friends and family, especially her partner Karen and dog Chaco. All that came to a halt when she was rear ended by a careless teenager speeding through a residential area. On impact, her head hit the steering wheel then whipped back to hit the headrest, causing brain, neck and back injuries. She also jarred her leg and knee.
Here is her story:
I’m a very physical person. I undertake building and fix-it projects as a hobby to 
help friends and family. My physical injuries kept me from that. I also enjoy the outdoors, especially hiking, camping, clam digging and fishing. My back and leg injuries made it too difficult to engage in those activities as well. It was hard to do even simple tasks such as walking my dog and cleaning the house. My partner Karen, after working all day and commuting for an hour from Seattle, was also stuck with the household chores.
My brain injury also threw my every day routine out of whack. I love to read, and that proved to be difficult. I became easily confused and lost track of time. I love cooking, but that became dangerous because I’d forget a boiling pot on the stove. I remember having to keep pictures of loved ones in front of me while talking on the phone so I wouldn’t forget to whom I was speaking. I had to recover brain function and re-learn tasks.
My head injury also caused me a lot of emotional stress. It is very unnerving to not recognize or understand yourself. I’m so thankful that Karen was by my side through it all even though she was very frustrated. It was hard to think and stay focused, I got anxious in social situations, which was hard because I loved going to dinner parties, cultural events, and concerts. Traveling became frustrating and frightening. It was hard to stay on task to get packed, go into an airport, then an airplane full of people; I would have serious anxiety attacks. My job also suffered because of both my physical and emotional damage.
My treatment, which lasted well over three years, involved a lot of intense therapy in order to relearn 
how to respond in social situations, remember interactions, keep track of day-to-day happenings, and deal with scheduling changes. I’d also play cognitive games, such as Scrabble, on my own to keep my mind as sharp as possible. I’ve mostly recovered from the injuries, which happened eight years ago. I’m enjoying engaging socially again, which includes a dinner group I’ve been a part of for sixteen years now. I’ve started traveling again and in the last couple of years, have been to the east coast, England and Ireland. I’m back to my normal routines of walking the dog, cleaning, helping my friends with their household fixes, and my clam digging and fishing. My reading comprehension is still not great, and I’m still not comfortable with hiking, but I’ll get there and I’m looking forward to it. As Dory says “Just keep swimming” <——– I used to and continue to use this phrase a lot to help me through the confusion, stress and fear of life.
One of the most important aspects of my life that’s returned to normal is my job. I’ve been working with Joshua, a nineteen-year-old man with autism, and his family, since he was four. When he was younger, I helped him in school and cared for him in the afternoons. I continue to assist him with his daily care and I drive him to appointments and his Special Olympics activities. He’s very active in the Special Olympics, so I’ve become involved too. I’ve taken on the secretarial duties for the Sound Athletic’s Special Olympics Team, which requires organization and people skills, responsibilities I could never have taken on until my recovery.
Knowing Mr. Messina before my accident, I called MBC immediately. I knew I could put my case in their highly capable hands and not have to worry or think about anything. Natural healing is very important to me, so I chose a holistic treatment program, as opposed to a more conventional medical approach. I appreciated that my attorney, James McCormick, took the time to talk to my doctor and understand my healing process. I’m very happy with my settlement and the work done by James and paralegal, Maribeth.
On May 14, 2012, our client was at Latitude 84, a tavern in Tacoma. She was sitting in the patio area speaking on the phone when Eugene Tremble, a repeat offender under the supervision of the Department of Corrections (DOC) was about to re-enter the tavern from the patio area. Our client asked him if he would shut the door behind him and he reacted by smashing a cocktail glass into her face. His violent behavior caused serious facial lacerations resulting in permanent injuries to the tendons in her face and ear and other injuries that required extensive medical care, including surgery.
At the time of this incident, Tremble was in violation of the conditions of his probation. DOC was aware of the violation yet failed to take action to apprehend him. If the DOC had properly supervised Tremble and followed their own protocol to arrest him, he would have been in custody on the date the assault took place.
MBC personal injury attorneys Stephen Bulzomi and John Christensen have filed a law suit against the State of Washington seeking damages for DOC’s negligence in supervising Tremble.
Congrats are in order again to MBC attorney Steve Bulzomi. He is the President Elect for the Washington State Association for Justice (WSAJ). Congrats Steve!
The goal of the WSAJ is to ensure that our justice system remains unprejudiced, to maintain the right to a trial by jury, and to make certain that any person victimized by the misconduct or negligence of others can obtain justice in our courtrooms, even in actions against the most powerful entities.
