October 2017, We received this case approximately 30 days before the initial trial date in Bakersfield. Our client, a Veteran and just starting treatment for cancer at the Veteran’s Administration Hospital, was involved in a collision after he had a couple of drinks with friends before being scheduled to travel to Los Angeles for treatment. He was driving the short distance home and made a left turn in front of the plaintiffs’ vehicle which was speeding in his direction.
Counsel for plaintiff sought to “set up” the defendant’s insurance carrier. The claims presented to defendant’s carrier provided minimalist information. Plaintiffs’ treatment was sparce until after the policy limit demand had expired. Plaintiffs, two young siters, then attended multiple attorney-referred, doctor visits in an effort to prove that they suffered from orthopedic injuries and brain damage.
After the matter was transferred to us, we were successful in obtaining a trial continuance and the necessary Independent Medical Examinations to give the jury a truly objective view of what injuries the two young lady plaintiffs had sustained, if any. We were able to retain the experts necessary to counter the “usual suspects” that appear for orthopedic/brain injury cases in Bakersfield.
The matter proceeded to trial with Scott Macdonald representing defendant. Also present was Laura Reichenbach who provided trial support. At trial, the plaintiffs were significantly impeached with the assistance of damning “sub rosa” video and otherwise questionable proof. Defendant’s team of experts was successful in proving the jury that the significant impact experienced by plaintiffs did not cause the injuries claimed.
Counsel for plaintiff asked the jury to award upwards of $15,000,000 in damages for the plaintiffs. The jury awarded $71,000 and $115,000 for the two plaintiffs. This was after the jury had found the plaintiff driver 40% negligent for speeding.
September 2017, In the first of two, back-to-back, Bakersfield trials, Scott Macdonald with the trial support assistance of Laura Reichenbach, were successful in obtaining a defense verdict in a case involving allegations of a traumatic brain injury and orthopedic injuries.
Defendant was a young man that entered an intersection on a red light after he spilled a milkshake in his vehicle. The plaintiff’s vehicle was struck and caught on fire at the scene. We admitted liability for the collision.
Plaintiff claimed that his life was forever altered by the collision. He claimed that he could not work, drive and do many of the activities of daily living. To counter these claims, we brought in his supervisor from his job to inform the jury about how plaintiff was working and how the employer would accommodate plaintiff if he had any truly debilitating issues. We brought in investigators who had done “sub rosa” who showed video to the jury demonstrating that plaintiff was capable of performing many of the day to day activities that plaintiff had told to the jury, under oath, that he was incapable of doing. Specifically, plaintiff’s treating orthopedic surgeon, who is prominent in the Santa Barbara, central coast and central valley areas, had testified that plaintiff could not work due to the fact that he could not turn his head to see approaching danger. We had sub rosa video where plaintiff casually turned his head in a Costco parking lot to make sure that no traffic was approaching as he wielded his cart toward the retailer. We introduced evidence during the testimony of plaintiff’s spouse that her husband, who could not drive, was in fact driving when both were involved in a subsequent loss.
The jury returned a defense verdict on causation after a short deliberation.Read More
July 2017, Scott Macdonald successfully defended claims brought by a Priest who was involved in a freeway collision and claimed life-long back complaints. Defendant contended that she was driving on the freeway and was rear-ended by plaintiff’s vehicle. An independent witness, the police officer and plaintiff claimed that defendant made an unsafe lane change in the path of plaintiff and that plaintiff could not avoid striking defendant’s vehicle. The jury found defendant liable.
Plaintiff waited six weeks to begin treatment. We discovered that during that time frame he reported to Kaiser that he had been “sparring” and had suffered back complaints. Plaintiff would ultimately take attorney-referral to a well-known D.O. in Los Angeles. That doctor performed a lumbar disc procedure, which reportedly failed. Plaintiff then claimed that he would have life-long pain and would need a lumbar fusion surgery.
Defendant presented an orthopedic surgeon and radiologist and maintained that plaintiff suffered soft-tissue injury only. The lumbar surgery was not necessary and any defect in the spine was age-related. Defendant was successful in keeping out over $100,000 of medical bills for procedures not timely disclosed in discovery.
The case was tried to jury in Van Nuys. The jury was asked to award millions of dollars. The jury awarded plaintiff his medical specials of $78,351. The jury refused to award the claimed cost of the future fusion surgery but awarded $10,000 in future medical expenses. Plaintiff received $30,000 in past pain and suffering and $15,000 in future pain and suffering. The total verdict was $133,351.
This matter was transferred to our office for trial. Prior to coming to our office plaintiff had demanded the policy limits of $100,000. The policy limits were tendered, but plaintiff claimed that the tender was not timely and that defendant’s policy was “open.”Read More
May 2017, Scott Macdonald received an award in favor of his client in Murrieta, California in a Declaratory Relief matter in which our client sought the Court to find that it had no duty to defend and indemnify an action for wrongful death for a murder/suicide.
Policy holder shot and killed his significant other and then turned his weapon on himself. The heirs of the policy holder’s significant other filed a wrongful death lawsuit against the Estate of the policy holder. The action against the Estate resulted in an award of $6.5 million dollars. We successfully litigated the issue that our client was under no obligation to indemnify the Estate for the judgment and that our client had no duty to defend the Estate.
The action was premised upon a lack of coverage as the actions of the policy holder were intentional. Attorneys for the heirs sought to argue that the policy holder suffered from PTSD and could not form the requisite intent. The matter was tried to a jurist with considerable experience with criminal law. The Judge found that the policy holder’s actions were intentional and even if they were not, the arguments of an inability to form intent would be unavailing under California coverage opinions.Read More
April 2017, Michael Cody represented an 84-year-old client who turned left in front of the plaintiff in a trial in San Jose, CA. Plaintiff was a 54-year old Pakastani immigrant who had worked as an auto mechanic before severing multiple fingers in a saw accident in his backyard 4 years before the accident from which he had been rendered totally disabled. Plaintiff claimed to have uncurable headaches since the day of the accident, in addition to neck and back injuries.
Plaintiff underwent extensive treatment for his claimed headaches before being referred by his attorney to a neurologist who diagnosed him with occipital neuralgia, a distinct type of headache characterized by piercing, throbbing, or electric-shock-like chronic pain in the upper neck, back of the head, and behind the ears, usually on one side of the head. Plaintiff’s doctor testified that chronic injury to the occipital nerve made it likely that Plaintiff would continue to suffer from these headaches for the rest of his life. Plaintiff also claimed that he would never be able to work again because of the headaches, despite the fact that he was already totally disabled.
The defense presented a neurologist who challenged Plaintiff’s doctor’s diagnosis and prognosis, pointing out that over a year span plaintiff described his headache symptoms in terms that that contradicted the symptoms of occipital neuralgia – a fact his doctor ultimately conceded on cross-examination.
The parties ultimately stipulated that the reasonable value of the medical treatment Plaintiff had received for injuries he claimed to have sustained in the accident was $8,000; the defense did not concede that all such treatment was reasonable. Before trial, the defense had made offers of $35,000 and later $45,000 to settle, both of which were resoundingly rejected. Plaintiff’s last demand before trial was $125,000.
At trial, Plaintiff asked the jury for $450,000 for past and future medical bills and for past and future pain and suffering. Michael argued that the only medical treatment that was reasonable and necessary was a visit to the ER, x-rays of his head and neck and 6 visits of physical therapy at a total cost of $1,500. The jury deliberated for 1.5 hours before returning a verdict in favor of plaintiff for $1,500 – exactly what the defense argued the medical bills were. There was no award for any past or future pain and suffering.
Because defendant had made a 998 Offer much higher than the verdict, the defense was entitled to recover costs, including expert costs, which totaled over $50,000. Because plaintiff was uncollectible, Michael convinced plaintiff to walk away with nothing, waive all rights to appeal and file a dismissal of the case without the entry of judgment.Read More
April 2017, Scott Macdonald with the assistance of Laura Reichenbach received a defense verdict in Long Beach after a jury found that defendants were not negligent.
Defendants were the owner and operator of a hauling business. Defendant was on his way to pick up some plants from a nursery on the 101 freeway in the Woodland Hills area when plaintiff alleged that a mattress flew out of the back of his trailer into the path of plaintiff’s vehicle. Plaintiff swerved nearly 90 degrees to the right to avoid the oncoming mattress. She slammed her car into a k-rail. Her airbags deployed shattering her nose. As a result of the injury, she lost her sense of smell.
Plaintiff presented two independent witnesses to establish that the mattress flew out of defendants’ trailer. However, the witness’ stories were unbelievable. One of the witnesses testified that he had seen the mattress come from the bed of the truck, when he denied the same in deposition. He then testified that he had seen the mattress “hover” over the trailer which was moving at freeway speeds and that it actually reversed directions mid-flight before coming off of the back of the trailer. The jury audibly laughed at a question on cross-examination as to whether this was “Magic Carpet Flying Mattress”. Plaintiff never testified that she had seen the mattress come from defendants’ black trailer and had told the investigating officer that it came from a white dump truck.
Defendant driver/owner testified that the trailer had been emptied. He had no reason to believe that a mattress would be in the trailer. We argued burden of proof, and the jury agreed.
The damages sought were for a severe injury to plaintiff’s nose. She also lost her sense of smell which was conceded by the defense. Plaintiff sought over $6 million from the jury. We had offered $350,000 to resolve the case and had offered to enter into a favorable high/low during trial.Read More
March 2017, Scott Macdonald obtained a defense verdict for our client in San Bernardino after a hotly contested two-month trial.
Defendant was driving home from a church retreat with three passengers. She was in a rural desert area with a two-lane road. Defendant encountered a vehicle which had come across the center line and into her lane. Defendant took evasive action which forced her onto the right shoulder. She then lost control of the vehicle. The vehicle ended up going into the desert. It rolled multiple times. The driver’s side rear-passenger was ejected and sustained serious injuries.
Plaintiff sued our client alleging that she was negligent in operating her vehicle. Plaintiff also sued the vehicle manufacturer and seatbelt manufacturer for an allegedly defective seatbelt. The vehicle manufacturer and seatbelt manufacturer attempted to defend the case, in part, by alleging that our client was at fault for the accident. This included an expensive attempted reconstruction of the accident and an expert witness on driving behavior.
There was a lot at stake for our client. The policy limits were tendered immediately, and plaintiff was not inclined to accept. The damages were significant. Plaintiff had sustained a significant brain injury which left her totally incapacitated and in need of round the clock care.
After two months the jury deliberated and found that our client had done the best she could given the situation that she found herself faced with. They jury returned a unanimous defense verdict.
December 2016, Scott Macdonald and Laura Reichenbach obtained a defense verdict in Orange County in a truck versus pedestrian collision.
Defendants were a mechanic and his employer. Defendant driver was on his way to a designated job location in the early morning hours in his company vehicle. He was on Beach Boulevard in Anaheim which has four lanes in each direction separated by a median. Defendant was northbound on Beach Boulevard. It was dark, and poorly lit. Defendant was driving within the speed limit in the farthest right lane next to the curb. Plaintiff was attempting to cross Beach Boulevard from the east to the west and was not in a crosswalk, though a crosswalk was very close for her use. She was wearing all dark clothing and was utilizing a walker. Plaintiff was well into the curb lane when she became visible to defendant driver. Defendant driver attempted to brake, but he could not avoid the collision.
Through accident reconstruction experts and a human factors expert, defendants were able to demonstrate that there was simply nothing defendant could do to avoid the collision. In fact, plaintiff was in a much better position to avoid the collision than defendant driver. The jury agreed with the defense and found that defendant driver was not negligent.
One Million Dollar Award and Substantial Contributory Negligence For Case Involving Deceased 16-Year-Old in Long Beach
August 2016, When Macdonald & Cody, LLP was opening its doors, Scott Macdonald and Laura Reichenbach were in trial in Long Beach in a wrongful death case involving a 16-year-old who was crushed to death by a speed boat that hit a jet ski upon which the 16 year old was a passenger. The driver of the jet ski sustained serious injuries. The driver of the jet ski and parents of the deceased 16 year old sued defendant who had serviced the subject jet ski shortly before the accident. The claim was that water had been left in the fuel system thereby causing a loss of power and put the jet ski to be in a position to be struck by a speed boat leaving a no wake zone.
The matter was tried to a jury in Long Beach. Plaintiff asked for a multi-million dollar verdict. While the jury found liability, the jury only put 40% negligence upon our client. The jury awarded $1,000,010 in damages to the parents of the deceased 16-year-old. The driver plaintiff, who had severely fractured his pelvis and had ongoing back complaints was awarded $340,000.
$1,500,000 had been offered before trial. There had been extensive negotiations throughout trial to resolve the case. Post-trial, plaintiff’s faced a significant challenge on appeal due to a motion for Directed Verdict on liability which it was our position was improperly denied. The case settled post-trial for a sum far below the verdict and substantially less than our pre-trial offer.
April 2016, in his second of back-to-back alleged traumatic brain injury cases in Orange County, Scott Macdonald was successful in securing a reasonable demand of $34,000 in the face of a multi-million-dollar demand.
Plaintiff, a young man, was walking in a crosswalk with his brother when our client collided with him. He had a very large contusion to the side of his head. Plaintiff claimed that he had sustained a traumatic brain injury with residual deficit in cognitive function. Utilizing school records we were able to establish that while there was a mild concussion, there was no residual deficit.
Compelling conclusions by the defense
Macdonald argued that care and treatment had not been required since December 2013 because there was no real brain injury. He pointed out that the neuropsychological testing done after the accident demonstrated no appreciable change from the assessments done in high school.
The defense conceded fault for the collision, causation of some injury and the possibility of aggravating a previously existing depressive condition. However, Macdonald contended the plaintiff did not meet his burden of proof for a traumatic brain injury as opposed to head trauma.
The bottom line
First, the plaintiff asked for the $100,000 policy limits, then increased the claim to $950,000. The sum rose to $2.15 million, and shortly before trial the plaintiff demanded $3.25 million. They accompanied the final demand with a threat that they would petition the jury for more than $10 million.
The CM team offered the plaintiff $100,000 before trial by way of a CCP 998 settlement, but no agreement could be reached.
At trial, the plaintiff requested an award of $2,719,722. Macdonald disputed their calculations and said the jury should assign a total between $18,000 and $73,000.
The jury awarded $34,302.63, and the defense will recover costs.
- Defendant hit pedestrian in a crosswalk
- Plaintiff’s demand: $2.7 million
- Jury’s award: $34,000