It's a year-old personal injury trial result I've been intending to discuss on my blog for over a year: a clear-cut liability, serious rear end collision with major damage resulting in injuries and surgery. The plaintiff's lawyer thought it was a slam-dunk result for his client but the Cherokee County, Georgia jury found for the defendant after only four hours of deliberations. Thankfully, it wasn't my case, but it holds some valuable lessons for clients in the expectations department as well as attorneys in assessing cases for trial.
Brief synopsis of the case: in 2002, a driver slammed into the plaintiff at a light (as he was releasing his foot from the brake) and pushed both cars into the intersection, totaling both vehicles. The plaintiff suffered a herniated disc in his neck and eventually required surgery. The parties attended mediation where the plaintiff demanded $750,000 and the insurer for the defendant offered $60,000. The plaintiff declined the offer and left the mediation. At the first trial, the jury returned a verdict of $2,617.50 for the plaintiff for medical bills. Due to some issues arising at trial, the judge granted a motion for a new trial. At the new (second) trial in 2011, the jury returned a defense verdict and declined to award anything to the plaintiff.
What went wrong for the plaintiff? He had nothing to do with causing the car wreck. The wreck was caused by the defendant's negligence. He was injured by the car wreck. He incurred medical bills (damages) as a result of the car accident. The case seems fairly clear cut. What went wrong is in the details and in facts that came out at trial. Facts are so very important to jurors and as the saying goes, "facts are stubborn things." Trial apparently revealed that:
- The plaintiff refused an ambulance at the scene of the accident and instead chose to see a doctor the next day. This could have been for many reasons, but the jury probably determined the plaintiff wasn't so very injured by the wreck after all;
- The plaintiff did not follow his doctor's instructions in going to physical therapy;
- The plaintiff had complained of neck pain nine months prior to the accident.
Refusing an ambulance if you're injured and really not feeling well after a serious collision or injury of any kind isn't smart. If there's a head or neck injury, bleeding, etc., it's wise to at least get checked out by the EMS personnel at a minimum.
Overriding and ignoring doctor's orders doesn't look good to a reasonable person. A plaintiff will have a difficult time at trial convincing a jury to hold the defendant financially responsible when the plaintiff isn't taking care of his own health and listening to a healthcare professional. Don't not go to treatment and/or physical therapy then expect to be compensated for all your problems.
Prior neck pain: this is a tricky issue. Neck and back pain due to all kinds of reasons is common; insurance companies know this and thus attempt to label any prior pain or problem (almost anywhere in the body) as a "pre-existing injury" which their insured did not cause. This is insurance defense lawyer 101. This is where a plaintiff's lawyer needs to get crystal clear deposition testimony of the treating physician(s) to specify for a jury in clear, everyday language exactly what is causing and has caused prior and current pain/injuries.
Now on to the Cherokee County jury finding for the defense: Cherokee County has quickly grown from rural to suburban within the last 10 years. The defense lawyer in the above case described the jury as "suburban Republican" in that it's fairly conservative in verdicts. The jury in this case was equally balanced in gender and educated. Perhaps the plaintiff's lawyer in this case should have anticipated the highly conservative bent of Cherokee County and counseled his client to take the $60,000 offered as a "bird in the hand," or at least push for continuing settlement negotiations. This doesn't mean that I think the jury was correct in handing down a defense verdict and awarding the plaintiff zero. And without knowing all the facts of the case do I necessarily think $60,000 was an appropriate settlement to accept at mediation.
I do think that the jury was turned off by some fairly obvious issues in the case that, handled differently, might have made a significant difference in the plaintiff's credibility. Juries aren't going award lots of money to someone they think is overreaching or malingering or greedy. My take is that juries in Georgia are increasingly conservative and going to trial can be a risky endeavor. Even the best of cases have flaws in them - or at least the defense attorneys will attempt to distract the jury with red herring/fake issues.
The catch-22 is that insurance companies are even less inclined to settle even absolutely clear-cut liability, serious injury cases so I am forced to try cases that should have been resolved out of court. Bottom line: I have to help keep clients' expectations in line with case and jury research as well as counseling them on the flaws, if any, in their cases. There are no rose-colored glasses at this firm. If we are all on the same page, we likely won't get a defense verdict or leave money on the table at mediation.