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.
Read MoreAggravation 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.
Read MoreLos 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.
Read MorePlaintiffs 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.
Read MoreMacdonald & Cody Sponsors 12th Annual ALS Golf Classic
For more information about this foundation or how to participate in this event, visit the ALS Association.
Read MoreSuccessful Anti-SLAPP Motion Removes Defendant from Case
On December 18, 2020, Esther Choe of Macdonald & Cody, LLP obtained a favorable ruling in Orange County, granting Defendant’s anti-SLAPP motion and striking Plaintiffs’ entire unlimited complaint for malicious prosecution against Defendant.
Defendant claimed to be the victim of fraud and manipulation by her business partners and friends as well as the attorneys that represented them. She turned to the Court to redress the wrongs committed against her, but she was only partially successful. Her former business partners were dismissed from her lawsuit and then filed a malicious prosecution action against her, seeking over $150,000.00 in general damages as well as punitive damages.
Esther Choe filed an anti-SLAPP motion to strike Plaintiffs’ complaint against Defendant. After extensive briefing and oral argument the Court issued its ruling in favor of Defendant, granting Defendant’s anti-SLAPP motion, denying Plaintiffs’ request for attorney’s fees and costs, and allowing Defendant to file a motion for attorney’s fees and costs against Plaintiffs.
Read MoreDefense Verdict Secured on a Cyclist Versus Automobile Case
November 2020, Nadin S. Said secured a defense verdict in Orange County. The accident occurred at the intersection of Lemon and Orangethorpe in Fullerton, California. The Plaintiff was a 60 year old bicyclist who was riding her bicycle against traffic on the sidewalk. As she approached the intersection, she claimed the pedestrian cross signal turned green and rode her bicycle into the roadway. Defendant was driving an SUV, intending to turn right on a red light at the intersection. Defendant’s car allegedly impacted Plaintiff. Plaintiff experienced a tibia plateau fracture that required 10 days hospitalization, subsequent hospitalizations due to infections in the surgical wounds and a subsequent surgery to remove the hardware installed in her left leg. Plaintiff retained an orthopedic expert who testified Plaintiff would need a total knee replacement due to the accident, costing $60-80,000.00. Defendant only retained an accident reconstruction expert.
Prior to trial, Plaintiff demanded $100,000. Defendant offered $50,000.00.
At trial, Plaintiff counsel sought approximately $500,000 with some comparative on Plaintiff for riding the wrong way. The jury found Defendant was not negligent.
Read MoreBicyclist v. SUV- Defense Verdict
November 2020, Nadin S. Said secured a defense verdict in Orange County. The accident occurred at the intersection of Lemon and Orangethorpe in Fullerton, California. The Plaintiff was a 60 year old bicyclist who was riding her bicycle against traffic on the sidewalk. As she approached the intersection, she claimed the pedestrian cross signal turned green and rode her bicycle into the roadway. Defendant was driving an SUV, intending to turn right on a red light at the intersection. Defendant’s car allegedly impacted Plaintiff. Plaintiff experienced a tibia plateau fracture that required 10 days hospitalization, subsequent hospitalizations due to infections in the surgical wounds and a subsequent surgery to remove the hardware installed in her left leg. Plaintiff retained an orthopedic expert who testified Plaintiff would need a total knee replacement due to the accident, costing $60-80,000.00. Defendant only retained an accident reconstruction expert.
Prior to trial, Plaintiff demanded $100,000. Defendant offered $50,000.00.
At trial, Plaintiff counsel sought approximately $500,000 with some comparative on Plaintiff for riding the wrong way. The jury found Defendant was not negligent.
Read MoreASCDC Members Contribute to City of Hope Foundation
As a member of the Association of Southern California Defense Counsel, Macdonald & Cody, LLP has been able to make contributions to help fund City of Hope.
Proud Sponsor of the Federated Challenge
The team at Macdonald & Cody, LLP is pleased to be able to help contribute to organizations like, Big Brothers Big Sisters and their yearly event, Federated Challenge!
