Author: Genevieve Kenizwald

Successful Result in Motion for Summary Judgment

In a wrongful death action, associate Danielle Boyd recently obtained summary judgment for our client.

Plaintiffs’ decedent lost control of his motorcycle going over 100 miles per hour on a transition road to another freeway and grazed the right rear bumper of our client’s vehicle. Upon losing control, the decedent’s motorcycle hit a curb and a guardrail, causing decedent to be ejected from the motorcycle. Decedent landed in a tunnel of a transition road where he was subsequently struck by multiple motorists. Plaintiff alleged that our client was negligent when driving and caused the accident.

In preparing this case for summary judgment, extensive, targeted discovery was conducted and multiple depositions were taken to explore the facts of the multi-vehicle accident.

The successful Motion for Summary Judgment was brought under Plaintiffs’ failure to establish breach of a duty as well as causation, necessary elements of the cause of action pleaded. The court agreed with our arguments in that we satisfied the prima facie burden to show that the wrongful death claim based on negligent driving cannot be established. There was no evidence our client was driving negligently. Instead, there was clear evidence that the decedent was driving negligently at the time the accident occurred.

Double Lumbar Surgery Defense Verdit

On June 23, 2022, Scott Macdonald and Douglas Carasso received a defense verdict in the Historic Courthouse in Riverside, California.

On March 23, 2018 plaintiff, a 47 year old man was driving his 2004 Ford F150 pickup. He was stopped for a metered signal light at the end of an onramp to the 15 freeway Norco. Defendant, a 74 year old, was driving her 2002 Honda Accord also attempting to enter the freeway. She did not see brake lights plaintiff’s vehicle. Once she realized that plaintiff was stopped, she slammed on her brakes and swerved to the right. She was unable to avoid impact.

The impact was minor. The defense hired an accident reconstruction/biomechanical expert who opined that the delta-V was between 7 and 9 m.p.h. and that such impact was unlikely to cause injury. Plaintiff also retained a biomechanical expert. Plaintiff argued that he was an “eggshell” plaintiff. Plaintiff’s expert opined that an eggshell plaintiff might expect injuries from the minor impact.

Plaintiff sought no emergency care but told investigating officers that he had pain down both legs. He did not seek any treatment for 18 days. He then started chiropractic treatment and would eventually treat 87 times. He tried a single epidural injection which provided no relief. He then saw a spine surgeon who recommended a fusion. Six months later he saw a second spine surgeon who recommended a micro-decompression. That  surgery was performed in August, 2019. Plaintiff had only temporary relief following his first surgery. His surgeon then performed a spinal fusion surgery in March, 2021.

Medical specials were $450,000. Both sides had billing experts. The defense expert reduced bills to $145,000. The plaintiff expert reduced bills to $299,000. Plaintiff’s orthopedic surgeon testified. He testified to his treatment and that the plaintiff would develop Adjacent Segment Disease at a rate of 3% per year and would eventually need surgery. The defense expert said that conservative care had not been attempted and the surgery should not have been done unless conservative care had failed. The defense expert said that performing surgeries was not below the standard of care. The defense expert was of the opinion that plaintiff would not need a future surgery. Plaintiff hired a Life Care Planner who opined that the plaintiff would need roughly $750,000 in future case. The defense Life Care Planner opined that $17,000 in future care was reasonable given the fusion. Plaintiff asked the jury to award $6,233,000.

The jury deliberated for approximately two and a half hours. The jury returned a finding of no causation and awarded the plaintiff nothing. The defendant had a $100,000 policy. Plaintiff claimed that the policy was “open”.

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Jury Finds Multiple Pain Management Procedures Were Unreasonable and Unnecessary

On May 10th, 2021, Scott Macdonald and Elizabeth Tingen secured a favorable verdict in Orange County. The subject accident occurred on Pacific Coast Highway in Huntington Beach. Plaintiff had come to a sudden stop and was rear-ended by Defendant. Plaintiff’s vehicle was pushed into the vehicle ahead. Plaintiff drove himself to the hospital where he was treated and released. His primary care physician recommended physical therapy. He want to a couple of visits, but then elected to stop his treatments and seek pain management procedures which had been recommended to him by attorney-referred doctors.  Plaintiff acted upon those recommendations and underwent two radio frequency ablations, one facet block, one trigger point and one epidural steroid injection. Plaintiff claimed the need for a spinal cord stimulator to control ongoing pain. Plaintiff asked the jury for $82,000 in past medical bills (reduced from a gross number of $137,000) and $145,000 in future medical expenses. Plaintiff sought more than $1.7 million from the jury.

Defendant disputed that the injury was anything more than a soft-tissue injury. Defendant presented expert testimony to establish that the numerous and invasive procedures were neither reasonable nor necessary considering the failure of plaintiff to follow his own physician’s advice to seek supervised physical therapy which the therapist testified should have been sufficient to promote the healing plaintiff claims did not occur. The defense argued that the jury’s award should not exceed approximately $60,0000.

Defendant had offered $150,000 prior to trial. Plaintiff refused to negotiate off the policy limits.

The jury returned a verdict of $59,503.92. This consisted of $27,503.92 in past medical specials, $2,000 in future medical specials, $30,0000 in past and suffering and no future pain and suffering.

Defense Verdict in Pedestrian v. Automobile Case

November 2021: Scott Macdonald and Doug Carasso of Macdonald & Cody, LLP secured a defense verdict in Long Beach Superior Court. The accident occurred in the City of Los Angeles on Franklin Avenue near the Canyon Drive intersection. The plaintiff was a 30-year-old jogger who had entered Franklin on her regular morning run to Griffith Park while the defendant was lawfully driving his motor vehicle within the speed limit. Defendant was also on a “hands-free” cell phone call. Defendant was unable to avoid the plaintiff who had suddenly appeared from behind parked cars outside of any crosswalk. This led to plaintiff’s ending up on the hood of defendant’s car, hitting her head on the windshield, and being thrown to the ground. Plaintiff sustained a severe traumatic brain injury, a fractured hip, abrasions to her legs, and additional injuries.

The defense was able to secure a bifurcated trial, though in the Liability phase plaintiff’s counsel was permitted to advise the jury that plaintiff could not recall the subject accident because of the brain injury caused by the accident. In the Liability phase, defendant’s experts convinced the jury that because plaintiff was running or jogging at the time of impact, the accident was unavoidable for defendant. Plaintiff contended she was slowly walking when defendant’s car hit her. But defense counsel and their accident reconstruction expert pointed out that had she crossed the roadway in this manner (1) it would have been contrary to plaintiff”s and her boyfriend’s deposition and trial testimony, and (2) it would have caused severe lower-limb injuries to plaintiff rather than just abrasions.

Before trial, plaintiff was demanding $15 million to resolve this case. Plaintiff served 998 for $4,750,000. Defendant had offered his policy limits, but plaintiff refused to accept it as they contented that the policy was”open”.

The jury (9-3) found Defendant was not negligent at the conclusion of the Liability phase.

Re-Trial of Hung Jury Results in Unanimous Defense Verdict After 40 Minutes with Liability Admitted

In May 2021, Michael Cody and Danielle Boyd secured a unanimous defense verdict in Fresno County in an admitted liability automobile accident case. The accident occurred in a rural intersection outside of Fresno in Kingsburg, California. Plaintiff, a 37-year-old married mother of 5 children was driving an SUV with two of her minor children in car, including her 8-month-old daughter. As Plaintiff’s vehicle entered the intersection, the 78-year-old Defendant did not stop at the stop sign for cross-traffic, t-boned Plaintiff’s SUV on the passenger side, spinning it around. Defendant’s vehicle ended up stuck in a fence. After the vehicles came to rest, the Defendant tried to free his vehicle from the fence, accelerated and struck Plaintiff’s vehicle again, this time on the driver’s side. The collision was so violent that it caused one of the children’s car seats to smash through a rear window.

18 months before the accident, Plaintiff had suffered a stretch injury to her sacral plexus – the nerves that innervate and control function for her female reproductive organs and bladder – while giving birth to her 4th child. Plaintiff contended that her birth injury had completely resolved prior to the accident, even to the point of allowing her to conceive and give birth to a 5th child during that 18-month period. Plaintiff argued that the accident severely reaggravated her prior injury, resulting in a permanent loss of feeling to her female reproductive organs and bladder, and loss of bladder control. Plaintiff’s husband claimed loss of consortium for the diminished sexual intimacy the couple had after the accident.

The first trial took place in 2018 and resulted in a mistrial with a deadlocked jury. In March 2021, Defendant served a 998 Offer for $100,000 – representing the entire policy limits. Plaintiffs rejected the Offer, claiming the policy was open.

In a two-and-a-half-week trial, Plaintiff presented testimony of many treating physicians and an expert in urology and female pelvic medicine and reconstructive surgery. Plaintiff’s expert testified that the impact of the accident cause Plaintiff’s pelvic organs to shift, causing a stretch injury to the sacral plexus with resulting nerve damage. The expert testified that because the nerves were previously injured, they would not be able to recover from this subsequent injury and she would be permanently numb.

Defense presented an expert ob-gyn that refuted the opinions of Plaintiff’s and testified that Plaintiff had a prior nerve injury that had not fully recovered, despite Plaintiff’s claim to the contrary. There were no medical records documenting a 100% pre-accident recovery of the original birth injury. Plaintiff asked for $700,000 for herself and $300,000 for her husband. The jury returned a 12-0 defense verdict after only 40 minutes of deliberation.

Policy Limit Demand Leads to Zero Dollar Award at UIM Arbitration

In August 2021, Douglas Carasso successfully defended an insurance company at binding arbitration in an underinsured-motorist action brought by the driver of the middle car in a three-vehicle chain-reaction freeway accident. Claimant alleged soft-tissue injuries to his back, neck, and shoulder, and then, most significantly, traumatic brain injury causing mental impairments continuing over six years and beyond after the 2015 subject accident. Claimant’s TBI claim followed his seeing neurologists and psychiatrists who documents that Claimant had suffered a TBI as a result of the motor-vehicle accident.

The case had originally been handled by insurance company counsel, while Claimant’s counsel was demanding no less than the full $300,000 policy limits less the $15,000 already recovered by the Claimant from the at-fault driver who vehicle had rear-ended his. Going into the binding arbitration, Claimant continued the full policy limits.

At arbitration, Claimant presented lien-based past medical charges of $54,967.50, an expert-based claim of future neuropsychological therapy charges at $105,000, past pain and suffering at $471,200, future pain and suffering at $1,681,920, and thus a total-damages claim of $2,313,087.50. Based on these numbers, Claimant demanded the available amounts under the full $300,000 policy limit, while also threatening that after this recovery Claimant would sue the insurance company for bad faith.

Mr. Carasso argued that Claimant had overstated, exaggerated, and contradicted himself in his injury and damages claims, including that he suffered a TBI and yet was able to recall many details before, during, and after the accident and further that he promptly returned and maintained for years a mentally demanding job. Mr. Carasso also effectively cross-examined Claimant’s neuropsychological expert by getting him to admit that the medical-record documentation of Claimant’s TBI diagnoses was based on Claimant’s self-reported subjective symptoms and no objective testing, and further that this expert’s testimony was contrary to the medical science on traumatic brain injuries as to their cause and duration. Mr. Carasso further presented the defense’s neuropsychological expert who had examined Claimant and effectively testified that Claimant never sustained any TBI in the accident.

In addition, Mr. Carasso presented the police report and biomechanical-expert analysis asa to how minor the impact was and so was unlikely to cause anything more than transient soft-tissue injuries. Persuasive live testimony was also presented by defense experts in the fields of neurology, radiology, and orthopedic surgery that limited Claimant’s orthopedic-injury claims and refuted his TBI claims, including by showing that the only actual treatment Claimant received was chiropractic and that he never received any mental-health care or treatment. Mr. Carasso argued that this failure to obtain treatment was a failure to mitigate.

Mr. Carasso present experts in the fields of neurology and radiology who capably refuted Claimant’s TBI-injury contentions, including his coup-contrecoup claim, based on their testimony that the medical records and films were all contrary to such a claim. A further effective way that Mr. Carasso pointed out that Claimant did not sustain a TBI was by highlighting both in cross-examining Claimant and in presenting the defenses’s neurology expert’s testimony that Claimant still has a clear recollection of the before, during, and after of the accident, devoid of any anterograde or retrograde amnesia, a telltale sign of TBI.

Ultimately, Mr. Carasso argued that Claimant did not sustain any traumatic brain injury and thus Claimant had failed to meet his burden of proof. The arbitrator agreed with the defense and issued a zero-award to Claimant, finding that while it may be a “possibility” that Claimant had sustained a TBI, Claimant failed to meet his burden of proof by a preponderance of the evidence that any of Claimant’s injury claims was the result of the subject accident. The arbitration award of zero dollar was thus $2,313,087.50 less than Claimant’s counsel’s demand for a finding in this amount, and so it prevented Claimant from pursuing any relief in a long-threatened subsequent action against the insurance company.

Aggravation of Spinal Injury Award is a Fraction of Claimant’s Demand

On January 21,2021, Michael Cody and associate Michele Spencer obtained a successful binding arbitration award in a very contentious uninsured motorist claim. The claimant was a 55-year-old woman with significant pre-existing low back pain, radiculopthy, nerve compression and spinal stenosis. She claimed that she was injured when she was the front seat passenger in a vehicle being driven by her husband that was rear-ended by the underinsured driver.

Claimant had multiple prior accidents, including a slip and fall and other automobile accidents for which she received medical care for low back issues. Just month before the accident at issue, she sought out consultation and treatment with a neurologist because her pain, weakness and nerve symptoms had gotten so severe that she couldn’t stand or walk for more than 10 minutes at a time. She underwent nerve conduction studies and has an MRI of her lumbar spine. Her neurologist informed her she had some long-standing, likely irreversible, nerve damage in her lumbar spine, and she referred claimant for epidural steroid injections. Claimant had one lumbar spine epidural injection just 3 months prior to the subject accident.

After the subject accident, claimant complained of a severe increase in her symptoms, telling her treating neurologist that prior to the accident she had been “80% better”. Claimant’s neurologist repeated nerve conduction studies that had been done 5 months prior and ordered a repeat MRI of her lumber spine. Her neurologist testified that the EMG/NCV tests revealed “new injuries” that weren’t present on the prior test. She referred a claimant for pain management and physical therapy.

Claimant underwent 5 lumbar epidural steroid injections over the next couple years before ultimately being referred to a neurosurgeon for consultation. Claimant underwent lumbar decompression and microdiscectomy at L4/L5 4 years after the subject accident.

At arbitration, claimant argued that she was an eggshell claimant, and experienced a severe exacerbation of her pre-existing condition, which she claimed had been 80% better just before the accident. Claimant argued that the post-accident MRI showed that her lumbar spine condition worsened, When compared to the MRI taken a few months prior to the subject accident.

She argued that she was never told she was a surgical candidate before the subject accident, and that the accident caused her significant increased symptoms of warranting multiple epidural injections and eventually surgery.

Mr. Cody and Ms. Spencer argued on behalf of the insurance carrier that claimant did not sustain any significant injury as a result of the accident, other than soft tissue strains. Experts opined at the arbitration that claimant needed lumbar spine surgery prior to the accident, and that her need for surgery was not caused by or hastened by the accident. Moreover, the defense team was able to establish that the post-accident increase in symptoms was actually the result of a cyst in claimant’s spinal column that was not present on the pre-accident MRI, but was clearly present on the post-accident MRI. It was argued that the cyst was the result of pre-existing degenerative disc disease and facet arthropathy, not the result of any trauma from the accident.

Claimant received $50,000 from the underinsured motorist’ insurance carrier. She present a claim for the remainder of her $500,000 UIM policy limits ($450,000) from her own carrier together with the demand for arbitration. Throughout the pendency of the claim, claimant refused to come off her policy limits demand, even at a mediation session that was held in an effort to avoid submitting the matter to arbitration. Prior to arbitration, the underinsured motorist insurance carrier offered $100,000, which was rejected. After 2 days of testimony and submission of evidence at the arbitration hearing, claimant requested an award of $929,000. The arbitrator awarded claimant $150,000 – only slightly more than the pre-arbitration.

Los Angeles Office is Officially Open

Top Insurance Defense Firm Opens Los Angeles Office

Irvine, California. (January 2021) – Macdonald & Cody, LLP is excited to announce the opening of their new Los Angeles office on February 1, 2021. Located at 500 S. Grand Avenue, Suite 1400, this merger with Inglis & Gower, LLP will establish Macdonald & Cody’s downtown Los Angeles presence, expanding the extensive breadth of knowledge and experience handling the following types of cases: bodily injury, property damage, commercial, homeowners, and personal liability defense. 

Joining the Macdonald & Cody team are Partner Richard Gower and senior attorneys Gregory Bramlage and Christian Przybylowski along with an incredible support staff who have been together for years.

Macdonald & Cody, LLP was founded in 2016 with 3 attorneys with the mission to provide effective, efficient, and creative legal representation for their clients. Today, they have offices in Irvine, Riverside and now Los Angeles with over 30 attorneys. 

The team has extensive experience with various litigation matters. They bring each client a combination of industry knowledge and expert perspectives to offer fresh defenses and breakthrough legal insights.

Plaintiffs Accept Settlement Offer 12% of Demand After 4.5 Years of Litigation

On January 20th, 2021, Debra Braasch and co-counsel, settled a case for for $3,750,000 following a 998, policy limits demand of $31,000,000 from which plaintiffs refused to budge and steadfastly claimed was the value of this case for more than 3 years. The case involved a pregnant woman who was involved in an accident with an 80,000-pound dump truck. Although pregnancy was intact after the accident, the child was born prematurely at 26 weeks. The adult plaintiff claimed a broken hand and neck and back injuries which were treated with epidural injections and physical therapy. Surgery was recommended for her low back. The mother’s economic and non-economic damages were opined to be in excess of $6,000,000. Plaintiffs claimed that the child’s premature birth and all attending problems were caused by the accident and the stress the mother suffered as a result of the accident. They also claimed that during the accident, the fetus suffered a significant brain malformation/brain injury to the corpus callosum resulting in seizures and developmental delays. The child’s medical expenses were in excess of $2,500,000, his life care plan, which included assisted living, was between $9,200,000 and $21,000,000 and his economic damages were calculated at $29,000,000. Defendants denied that mom needed back surgery, denied that the child suffered any type of brain injury as a result of the accident and denied that his premature birth was caused by the subject. The depositions the defense took of the mother’s OB/GYN and plaintiffs’ experts ended up being quite helpful for the defense. At mediation with Janet Fields and on the eve of trial, the plaintiffs increased their settlement demand to $45,000,000. Several days later, they finally agreed to accept $3,750,000 in full and final settlement of all claims, which is approximately 12% of their 3-year-old, $31,000,000 policy limits demand and 7% of their $51,000,000 total damages evaluation.