Category Archives: Trial

ADMITTED LIABILITY REAR END COLLISION CASES WITH PRE-EXISTING MEDICAL PROBLEMS

One of the firm’s associate lawyers worked extremely hard in preparing for the trial of an admitted liability rear end collision case. There was only a $25,000 policy and a settlement of $250,000 under plaintiff’s policy had been made by one of the partners. The associate was then asked to try the case as a potential bad faith case given the defense offer. This was her first trial on her own

The damage part of the case presented a lot of challenges. The injured male plaintiff had been seeing a chiropractor on a frequent regular basis before the collision. The damage to the cars wasn’t obvious, although there was a bent frame on plaintiff’s car. There were no broken bones. There were lots of entries in the record of complaints of pain and disability before and after the collision plaintiff needed surgery. The wage loss was soft and the claimed medical bills disputed as to causation. The judge allowed the defendant, over objection and motions, to testify in this admitted liability case that she had had to quit school to care for her siblings and other testimony that can only be relevant to a plea for sympathy and poverty. The result, after ten days of trial was a unanimous defense verdict for zero dollars. Our associate lawyer was devastated as she had worked very hard and was totally familiar with the facts.

I wasn’t there for trial and did not prepare her, but after hearing the news tried to figure out how that could happen. Most of my post verdict thoughts are based upon speculation because I haven’t seen the post verdict reports or results of contact from the jurors. What follows is my evaluation for her when I learned the result with some additional thoughts. I tried a fair number of cases like this when I was starting out, but I don’t claim to have all the answers. What follows are my thoughts and views about these cases.

You did a terrific job because you did the best you could with a case none of the partners in the firm were willing to risk trying which is why you got this one by yourself. That took courage and you couldn’t have worked harder. Learning to live with losing is more important than learning how to act when you win. We must never become comfortable with the idea of losing. We should avoid the attitude that “you can’t win them all” and “if you aren’t losing cases, you aren’t trying cases.” That’s a loser’s frame of mind. Our attitude should be to first screen cases for merit and not experimentation or trial experience at the expense of clients. Contrary to common thinking we should settle our “bad” cases and try our “good” cases, not the other way around. Trials are too expensive and too stressful as well as important for clients to not carefully evaluate when to go to court and when not to try the case. When we lose a case we must figure out why and revise. The “why” is often not what the jury or even the judge tell you because they reason, like all human beings, at an unconscious level and offer only what their rational minds offer as a reason for their real decision process operating below their conscious awareness.

As I indicated, you are not going to learn a lot from the jurors when you lose because they will give intellectual reasons when it is something far more fundamental. Go ahead and have someone talk to them but don’t accept their excuses or rely upon their explanations for revision of your trials in the future. The lesson to learn here is that the only way to know the underlying issues that drive a verdict in a case like this is a focus study. We needed a focus study in this case and if done it should have revealed the underlying themes, problems and issues. The lesson here is: never try ANY case without first doing a focus study ever. If it is worth trying it must be worth doing a focus study. And I don’t mean the invalid studies lawyers like to do when they think the way to conduct a focus study is to dump all the facts on the group, argue their case to them, do most of the talking and overload them with detail. The results of a focus group by providing both sides arguments and evidence, in the absence of professional help and guidance produces unreliable results. The results depend upon impression and impression depends upon who, how and what is presented.

For an inexpensive and informal study in a case like this done in house by us, means one where only minimum relevant facts are presented for immediate gut level impressions. For example one might say in our case to a focus group: “This case involves a 52 year old man who had been seeing a Chiropractor weekly for his back pain. He was involved in a rear end collision while stopped. He wasn’t at fault. The other driver admits they were at fault. After the collision..” (explain the immediate events: he did not go to the hospital, or he drove home or it was a week before he saw his chiropractor) Next give them a very basic and brief and simple statement as to treatment. Then describe briefly his claimed injuries. For example: “He claims that as a result of the collision he now needs neck surgery. He has $50,000 in claimed expenses. The defendants say he had all these problems before, he was not hurt seriously in any way and he is exaggerating to collect money. There will be disputed medical expert testimony” If you have a video of the client show them no more than five minutes. If you have pictures of the cars show them but don’t answer their questions. Then, before they are allowed to discuss the case and without answering any of their questions have them fill out a form: Q. How do you feel about his case? This produces gut reaction impressions. After they fill in the form let them discuss the case, looking for themes, issues, and evidence you need to be concerned about. Their questions, at this point, will help guide you as to trial evidence and case issues. This can be done with a group of eight to ten people for under $2,500 easily.

As to the result, the gift you got was a zero verdict. If they awarded any insignificant amount you would really have reason to be devastated for several reasons. A tiny verdict is an insult. It would be like a trying a long case and the verdict was $1. Now that’s a total insult. Trust me, a total defense verdict is a lot easier to live with. In addition, it demonstrates a probable bias and likely prejudicial error during trial which gives you an explanation for the outcome. On top of that, under Washington law, it is probable evidence of an improper verdict supporting a new trial since it was an admitted liability case, with some undisputed injuries. The fight was over what injuries and how severe they were. So start with the fact that if you were going to lose it’s a lot better to get a zero than a slap in the face.

It’s important to realize these kinds of cases are credibility cases and they are won, not with medical testimony, but with lay testimony. Jurors know the medical experts have an interest, but they trust lay people’s non medical observations of before and after medical conditions. Credibility is the reason I don’t think, as a general rule, you have your client on the stand more than thirty minutes maximum. You want your client saying “I’m doing OK and I’m going to beat this” and not moaning and complaining about their problems. Let the other people talk about his problems. The lay witnesses describe what they noticed before and after the collision with each one giving a different example. They tell very short stories illustrating the difference and they are brief witnesses as well – often ten or twenty minutes total. As to the total medical proof and evidence, you must be very careful not to over try the injury claim or exaggerate in any way, since the issue is credibility and they are looking for exaggeration and greed. You have to under try these kinds of cases.

Usually with this kind of case you are better off trying them as simply and quickly as possible without a lot of experts, technology or the trappings of major trials. They are white board, paper or Elmo cases rather than PowerPoint cases presented without a lot of technological fanfare. They require, however, good medical illustrations and diagrams to understand soft tissue injury. They are cases where you start right off talking about the obvious problem of a man with preexisting problems who now claims he is hurt and being totally candid from start to finish. These are cases where you concede specials are in dispute and you give the jury full power to disregard all or part. These are above all else impression cases and not cases of logic. Credibility is paramount. They need to trust you and they need to see total honesty.

Let me make clear I am not saying you would have won this case with the application of these facts. I don’t know the case well enough to evaluate that. What I am saying is that the manner of presentation tips the scale in the impression formed by the jury. There is no question in my mind, these are some are the most difficult kind of case to win. A malpractice case is easier to win then an admitted liability rear end collision with preexisting injury. The reason for that is in large part due to the decade of tort reform propaganda which focused primarily on rear end soft tissue cases as fraudulent get rich cases. It was the auto cases the insurance industry focused on to influence the juries and the legislature. It was only later that they begin to attack malpractice cases. As a result, of all the cases tried this very kind of case most frequently lost and there a lot of defense verdicts reported in our verdict reports to prove this so you aren’t alone here. This isn’t a failure on your part. This is just a painful learning experience you have now had which, if treated right, will make you a better lawyer.

HE’S BACK!

Well, after seven weeks the case finally went to the jury and after  a day and a half of jury deliberations we had a verdict. I’ve neglected this blog due to the trial for too long, but I’m ready to report back to you. Here’s my report.

The verdict wasn’t a bell ringer, but it was unusual in that the injured client was never deposed or in the  courtroom and was seen on only a few minutes of video during trial.

The case involved an elective laser surgery to correct hoarseness in a 53 year old single woman. It was supposed to be a ten minute surgery and she was going too go  back home the same day but there was an airway fire in her throat  during the surgery. She had to be airlifted from a small hospital on the Eastern  side of the state to Seattle where she remained 5.5 months on a ventilator while multiple surgeries to remove burned tube material and scar tissue  were done. From there she transferred to a nursing home in Spokane,  on the Eastern, side of the state where she is today and was almost  two  years later when we started  the trial.

She was ventilator dependent and had a loss of ability to  talk above a low whisper. We sued the hospital,  the  surgeon, the  anesthesiologist and the ETT manufacturer Medtronic. Our claim was that the surgeon missed the target with the laser, hit the cuff on the tube and started a “blow torch fire” in her airway. The surgeon denied hitting the  cuff. He claimed it was a slow leak around the cuff that ignited which wasn’t his fault. Our claim was  the anesthesiologist negligently kept the oxygen at  100% instead of lowering it for  laser surgery. She admitted she made this  mistake and was found negligent on summary judgment, but denied proximate cause of the fire.

We also blamed the doctors for going ahead with surgery when they had  never used this single cuff tube before and didn’t read warnings and instructions,  plus we claimed they failed to inform the patient about the situation. Both doctors blamed the hospital because they had always used a 2 cuff tube and the hospital only had a 1 cuff available for  them at the  time  of surgery.

Our claim against Medtronic was they knew doctors were “misusing” the product by missing the target with the laser and by not turning down the oxygen but did  not  warn and did  not  redesign their tube. Medtronic said  their tube was safe and it was exclusively doctor negligence.

Our claim against the hospital was they supplied a single cuff instead  of what the doctors asked  for and had not adopted laser safety policies and procedures. The hospital claimed the tube was safe, their policies were appropriate and it  was  not  their fault. Medtronic and the hospital also said hundreds of  thousands of tubes in use with only 8  fires over 13  years history.

The doctors refused to  blame Medtronic at  the time  of their deposition for design or warning during surgery and had no  experts on that issue at trial. When we filed the case our primary defendant was the hospital, but with Medtronic as the maker of the ETT tube as a defendant the venue could be in Seattle instead  of the small county in Eastern Washington where this happened.

The trial court granted  summary judgment against us on  our warning claim against Medtronic leaving design as the sole claim against them. Before the trial began we  reached a settlement with the hospital for $12M and the case proceeded against remaining defendants.  Mediation with defendants was  unsuccessful.

Under WA law the hospital is listed as a non  party empty  chair defendant, even though not represented  at trial. Any percentage assigned against it for negligence is deducted from a verdict against the  other defendants but the jury is not told this fact. The empty chair changed the dynamics substantially since we now had to defend the hospital and our previous discovery had done the opposite plus we now had conflicts in arguing hospital non liability while arguing Medtronic liability.

There were lots of expensive  experts. One defense expert for Medtronic said his fee was between $150 – $200K. . The defendants made an aggressive attack on damages. They had a world  renown Toronto doctor testify he could install a T tube which would  immediately get her off the ventilator saving millions in care costs and  that the treating doctors weren’t treating her right. A defense doctor  from Spokane, where her treating doctors were located, said our treating doctors could wean her from ventilator and they weren’t doing it.  Both testified she would be dead in 5 years anyway and one of our  treating doctors had implied the same thing – a fact they seized upon – so our projected costs they sa! id were greatly excessive anyway.

They hired a cost of care expert who said our costs were wrong and had four options for her which were a fraction of our costs. The defense spent more time attacking damages than I’ve ever seen in past cases. They had a defense economist and a defense life expectancy expert who were not called but were referenced in trial.

The jury asked a lot of questions of  every  witness except one: the defense doctor from Spokane for whom they had no questions.

Our client was never deposed and never in the courtroom at any time. I showed a 1 minute video of her being suctioned. A 45 second video of the noise the alarm makes on her ventilator rather often and a 3 minute video  without sound of her mouthing words to her sister all in the nursing home. Nothing else except three or four family members briefly and the treating doctors. Defendants also had two jury consultants with them. We had none present.

The judge limited time for argument. I had 35 minutes to argue our damages  & percentages of fault while each defendant had an hour to argue. It was frustratintg. I argued for 1% negligence  against the hospital. I suggested an equal division of fault among the  remaining defendants. The jury found no negligence for informed consent. The jury found the hospital 5% at fault. It found  no negligence as to Medtronic and assigned 42.5% fault against the  surgeon and the rest against the anesthesiologist.

I argued for $2.6 in past economic and $7.9M in future economc loss. Her normal life expectancy is 26 years. I argued no one knew her  real life expectancy, but used 14.5 years as a conservative number for  cost of care.The jury awarded my figures for economic loss. The jury awarded $8M for a total verdict of 18M and with the $12M  settlement this produced roughly a $30M recovery for our  client.

As always there are lots of war stories, and it should have been a lot more money for this poor woman’s injuries, but enough of you have asked about the case I thought I’d share this.

TRIAL AND SCRIPT WRITING

Blake Snyder has written a book titled  Save the Cat. It deals with script writing which ties into brief writing, themes and trial structuring. Here are just a few of his thoughts about this which you might consider regarding your next case or trial. By the way, we  are still in trial so I have limited time for  this blog right now.

  • concentrate  on writing one sentence. One line because if you can learn how to tell me “what is it?” better, faster, and with more creativity, you’ll keep me interested. If you can’t get to the heart of the story and  less than 10 min. no one will listen. In Hollywood it’s called a log line  or a one line.
  • A  perfect log line must include an adjective to describe the hero, an      adjective to describe the bad guy and a compelling goal we identify with  as human beings. The hero must offer the most conflict, have the longest  way to go emotionally and is the most demographically pleasing.
  • Try test marketing. Road testing your log line is important. Pitch it to anyone who will stand still even while in line at Starbucks as well as with friends and strangers.
  • As producers listen to the pitch for a movie they want to hear a version of “it’s a story about a guy who….” Who is this about?
  • once you have the hero, the motivation for the hero to succeed must be a basic  one. It must involve a primal urge. A primal urges get our attention.  Survival, hunger, sex, protection of loved ones and fear of death. The perfect hero is the one who offers the most conflict in the situation, has   the longest emotional journey, and has a primal goal we can all root for.  It must be primal of enough to answer the question would a caveman  understand? You need to connect with the audience at a basic level. Some  examples of primal drives are: the desire to save one’s family – Diehard. The desire to protect one’s home – Home alone. The desire to find a mate –  Sleepless in Seattle. The desire to exact revenge – Gladiator. The desire  to survive – Titanic.
  • The rule of thumb is to stick to the basics no matter what. Tell me a story about a guy who I can identify with. I can learn from. I have a compelling  reason to follow. I believe deserves to win and has stakes that are primal and ring true for me. But cast and concept are the starting point of  getting any movie made. What’s it about? And who is in it? Are the first two questions any moviegoer asks.
  • Somewhere in the first 5 min. of a well structured screenplay someone (usually not   the main character) will pose a question or make a statement that is the  theme of the movie. This statement is the movies thematic premise.
  • the  hero has to do something when we meet him so that we like him and want him to win. While you don’t have to have the hero save a cat in every scene or  help an old lady across the street to make us love him you must make the audience in sync with your main character and your story. You must takethe time to frame the hero situation in a way that makes us root for him  no matter who we is what he does.