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.