Author: Genevieve Kenizwald

Mock Jury Aids in Settlement During Trial

On November 12, 2019, Scott Macdonald and Debra Braasch of Macdonald & Cody, LLP obtained a favorable settlement after four days of trial.  This wrongful death case was settled for just above the final pre-trial offer and within authority.  The settlement amount was less than half of the eight figure demand that plaintiff counsel said he would never accept to resolve the matter once policy limits had been demanded and said offer allowed to lapse.  

The case involved the death of a Cal Trans worker.  The litigation was highly emotional and the incident was the subject of publicity.  The facts of the tragic incident were such that it was necessary to litigate the issue of liability as there was substantial comparative fault on the part of the decedent.  The family of the decedent were a loving and tight-knit group, and the decedent was a caring and devoted husband and father.  To prepare for the trial of the matter, the team from Macdonald & Cody, LLP employed the services of a company that set up a Mock Jury.  Theories and defenses were well-tested in order to properly prepare the case for trial.  The Mock Jury confirmed that the defense team’s determination of the case value was correct and that trial would be necessary.

At trial, plaintiff’s case began to substantially weaken.  While the damages side of the case would always be sound, plaintiffs began to appreciate the real possibility that a significant finding of fault on the part of the decedent was likely.  Therefore, on a Friday and after four days of trial negotiations began again in earnest.  The defense team, led by Macdonald and Braasch, held to the area of the pre-trial offer and resolved the matter to the extreme pleasure of their clients and principal.

Jury Sends Plaintiff a Message

On October 29, 2019, the jury sent a strong message to plaintiff and her attorney that personal responsibility is a two-way street.  Plaintiff and defendant engaged in conduct on a freeway wherein both drove aggressively toward each other.  Plaintiff lost control of her vehicle and rolled after impacting the shoulder.  Plaintiff was not seriously injured.  Defendant, an off-duty police officer was prosecuted by the District Attorney and chose to enter a no contest plea to a misdemeanor charge of reckless driving.  The incident and plea had significant professional, financial and personal consequences to defendant and defendant’s family.  

Plaintiff aggressively pursued defendant in the Civil action.  Plaintiff underwent attorney-referred chiropractic treatment and sought care from Kaiser for her claimed injuries.  She claimed significant psychological trauma from the incident.  She claimed that the incident ruined her life.  Plaintiff refused a policy limits offer and offer of contribution of defendant.  Plaintiff demanded $180,000 by way of a Code of Civil Procedure, Section 998. 

The matter was tried to jury in San Bernardino by Scott Macdonald, of Macdonald & Cody, LLP. The defense, led by Macdonald, admitted liability but argued that plaintiff was equally responsible for the incident.  Plaintiff denied any responsibility for the incident and her actions precipitating the loss of control.  Plaintiff presented eye witnesses to the accident as well as the investigating Highway Patrol officer.  Defendant credibly testified and admitted his responsibility for the incident and that while he had disengaged and was attempting to get away when plaintiff lost control, he admitted that he should have disengaged earlier and avoided the incident all together.  

Plaintiff’s husband testified that his wife’s life was completely changed.  He testified that she could not get out of bed for a month.  He testified that the couple’s marriage was significantly affected by the loss and plaintiff’s injuries.  He was significantly impeached by identical claims made by him a couple of years before this incident where plaintiff had run over an open manhole cover and claimed injuries that ruined her life and marriage.  She had sued the power company and claimed significant injury.  Plaintiff’s husband was significantly impeached when shown Facebook photos showing plaintiff out socializing with friends within a week of the accident.   Plaintiff was similarly impeached by extensive use of Social Media postings.  The jury was shown that the claims of continuing injury and psychological trauma was greatly exaggerated if not totally false.  Defense used sub rosa footage showing that plaintiff’s claims of continuing injury were exaggerated.  

The defense, led by Macdonald, asked the jury to award fault equally to both plaintiff and defendant (“50/50”).  The jury returned a verdict finding plaintiff 60% responsible.  Plaintiff asked the jury to award over a million dollars.  The jury awarded plaintiff $3,325 in medical bills and no general damages.   The defendant’s share of that amount was $1,330.  Plaintiff brought a Motion for New Trial.  The Court ordered a $1,000 additur as no general damages had been awarded by the jury.  Macdonald and team accepted the additur and are pursuing costs.

Million Dollar Demand for Dog Bite

On August 22, 2019 Scott Macdonald, of Macdonald & Cody, LLP won a verdict of $67,232.77 from an Orange County jury for a dog bite incident.  Liability was admitted.  Plaintiff claimed that she sustained a dog bite which resulted in Complex Regional Pain Syndrome (CRPS).  The parties stipulated to over $15,000 in medical specials which were related to the incident.  The issue for the jury to decide was the true nature of the injury and any past and future pain and suffering.   

The plaintiff claimed that the accident resulted in a CRPS condition.  She presented the testimony of a UCLA physician who specializes in the condition.  The defense countered with experts as well.  Plaintiff claimed that she had the condition and would suffer its effects for life.  The defense presented evidence of a pre-existing problem with plaintiff’s ulnar nerve which was lit up by the dog bite.  The defense hand expert testified that with care and treatment the symptoms would be expected to resolve within six months to a year at the outside.  The defense presented evidence that plaintiff had failed to mitigate her damages by failing to undergo the care and treatment recommended to her by her treating physicians at Kaiser.  The defense argued that plaintiff was seeking evaluations by attorney-referred specialists to build her case rather than focusing on the issues which were truly caused by the accident.  

The defense offered $100,000 by Code of Civil Procedure Section 998 before the trial.  Plaintiff’s last demand as $300,000.  Plaintiff refused to negotiate below this number.  Plaintiff asked the jury to award over a $1.1 million dollars.  The jury awarded the stipulated medical expenses plus $22,000 in past pain and suffering and $30,000 future pain and suffering.

Defense Verdict in Pedestrian versus Automobile Case

June 2019: Nadin S. Said of Macdonald & Cody, LLP secured a defense verdict in Downtown Los Angeles. The accident occurred in front of Westfield Fashion Square. The plaintiff was a 15-year-old minor who crossed the street and alleged defendant ran over Plaintiff’s foot with Defendant’s car. Defendant did not hire an expert and called the treating emergency room doctor who treated Plaintiff and diagnosed Plaintiff with crush foot injury.

Plaintiff retained an orthopedic expert who testified Plaintiff would need future treatment, including surgery and sustained permanent damage to his foot. Plaintiff testified his life changed forever, ending his career goals of becoming a soccer player.   

Plaintiff sought $285,000 from Defendant. The jury (11-1) found Defendant was not negligent.

Significant Leg Injury, and $32,000,000 Demand

Scott Macdonald and Michele Spencer were successful in obtaining a jury award of $5,300,000 after a $5,000,000 offer and against a $32,000,000 demand to a Los Angeles jury.  The verdict was read on March 21, 2019. 

The plaintiff was a young lady in her early 30s.  She had her left leg pinned in between the rear of her vehicle and another vehicle which collided with hers as she stood on the side of the freeway.  The accident occurred on a rainy day on the 60 freeway.  Plaintiff and her husband had pulled their vehicle to the right shoulder to exchange information for that accident.  Plaintiff exited her vehicle and was standing at the rear of her vehicle on the traffic side when defendants’ truck sideswiped another vehicle causing that that vehicle to veer to the right and pin plaintiff’s leg between it and the rear of plaintiff’s vehicle.  The defendant driver was unaware he had been involved in a collision.  He continued on his way.  The incident was investigated as a hit and run, and the California Highway Patrol determined that no hit and run had occurred.  

Plaintiff testified that she never saw a truck and was unaware that there was an allegation of a hit and run until she was told as much a few weeks after the accident.  She testified that she learned that the CHP had ruled this out, but was upset nonetheless.  The defense admitted liability and causation, and the Court had thrown out punitive damages on a Motion to Strike.  The defense moved to exclude evidence of an alleged hit and run, but the Court ruled that said evidence was relevant to plaintiff’s claim of emotional distress.  This ruling is currently up on appeal. 

Plaintiff’s leg was badly damaged.  Doctors were able to save the leg, but plaintiff underwent seven surgeries and procedures to repair the leg, the arteries and to repair the scarring.  It was undisputed that plaintiff would require a life time of surgeries to prevent problems with circulation.  Plaintiff also had significant scarring and disfigurement for which she was understandably self-conscious.  

Plaintiff waived past medical specials.  Plaintiff presented a Life Care Plan which they claimed was in excess of $4,000,000 dollars.  However, after significant cross-examination at trial, it was admitted that the Life Care Plan was overstated.  Plaintiff asked the jury to award $2,500,000 in future medical specials.  The defense life care plan was between $675,000 and $750,000.  Plaintiff asked for $10,000,000 in past pain and suffering and $20,000,000 in future pain and suffering.   The jury awarded $1,300,000 in future medical care and $2,000,000 for each past and future pain and suffering.

Fresno Victory for Scott Macdonald

Fresno Victory for MacDonald Cody: Jury Awards Plaintiff Just 15% Over Defendant Pre-Trial Offer, More than 75% Below Plaintiff’s Sought Damages

 On February 28, 2019 a Fresno jury awarded plaintiff roughly $1,495,000, just slightly over the pre-trial offer of $1,300,000.  Plaintiff had refused to negotiate below their multi-million dollar demands and asked the jury to award between $6,800,000 to $8,900,000 in damages.  During trial plaintiff dropped their demand to $2,850,000.  

 The accident occurred when defendant’s truck rear-ended the plaintiff’s pick-up.  Plaintiff immediately underwent attorney-referred treatment which resulted in a lumbar surgery.  Thereafter, plaintiff was referred to a Los Angeles doctor who did a multi-level cervical fusion.  During the procedure, the doctor put in a screw that was too long and which caused plaintiff nerve injury.  Plaintiff was forced to undergo a revision surgery to repair that mistake.  Plaintiff claimed that he was no longer able to work. The defense conceded that the lumbar surgery was necessary for long-standing degenerative conditions.  However, the cervical surgery was neither necessary nor related to the accident.  The defense disputed that the plaintiff was unable to work and presented a vocational rehabilitation expert on the subject.   

Plaintiff asked the jury to award $753,965 in medical bills.  The jury awarded $98,000.  Plaintiff asked for $1.4 to $1.5 in future medical specials, and the jury awarded $247,000.  Plaintiff asked for $630,000 in past and future loss of earnings, and the jury gave roughly $400,000.  Plaintiff asked for $4,000,000 to $6,000,000 in past and future pain and suffering.  The jury awarded $500,000 in past pain and suffering and $250,000 in future pain and suffering.

Defense Verdict in Serious Injury, Rear-End Accident

September 2018, Scott Macdonald and Bryan Thomas secured a defense verdict in Norwalk. The plaintiff was a passenger in a vehicle driven by her mother. The accident occurred on Interstate 5 in Norwalk in an area that has been under construction for years. Defendants were the driver and company operating a dump truck that was hauling debris from the job site. Defendant’s vehicle was attempting to enter the construction site which was adjacent to the fast lane on the freeway. Plaintiff’s mother rear-ended the dump truck. Plaintiff sustained a serious fracture to her femur which required multiple surgeries.

Plaintiff contended that the dump truck made an unsafe left turn from the number two lane across the number one lane. Plaintiff contended that they could not avoid striking the dump truck. Defendant contended that he was turning from the number one lane into the center median and was rear-ended. Both sides employed the services of accident reconstruction experts. While the jury found that defendants were negligent, the jury decided that defendants were not a substantial factor in causing harm to plaintiff.

Plaintiff sought $3.5 million from defendants. Defendants had made a C.C.P. Section 998 offer of $125,000 to plaintiff prior to trial.

Net Verdict Substantially Lower Than The Pre-Trial CCP § 998

July 2018, Scott Macdonald and Debra Braasch successfully defended at trial a prominent Southern California auto dealership that was sued when one of its drivers was involved in an automobile collision.  Plaintiff, a sixty-eight year old man, broadsided our client’s vehicle that was attempting to exit the dealership into traffic.  Our client’s driver had his view obstructed by a car carrier that had illegally parked in a red zone adjacent to the dealership exit.   While our clients responsibly admitted negligence and causation at trial, co-defendant car carrier disputed that they were a legal cause of the accident.

The impact was fairly significant, and the plaintiff sustained bilateral rotator cuff tears.  Both were operated on within months of the accident.  Plaintiff also underwent a lumbar fusion surgery and alleged the need for a multi-level cervical fusion.  Past medicals were $269,000 and alleged future medicals were $185,000.  Plaintiff also claimed a loss of household services of upwards of $300,000.  Plaintiff’s wife sought loss of consortium damages.

Our client authorized us to make a pre-trial offer of $500,000.  We did so by C.C.P. 998.  Co-defendant offered $200,000.  Prior to trial, plaintiffs refused to lower their demand from $4,000,000.

The jury determined a 60/40 split on liability.  The jury awarded a gross verdict of $575,000 for plaintiff and $5,000 for his spouse.  The net result as to our client is substantially below the Section 998 offer.  Consequently, our client will recover substantial costs to be subtracted from the net result.

Jury Refuses to Award Costs for Unnecessary Surgery and Alleged Brain Damage

May 2018, Plaintiff sought $6,500,000 at trial for a knee surgery, lumbar fusion and alleged traumatic brain injury.  The jury awarded just over $41,000, substantially less that our pre-trial offer of $300,000.  We were entitled Section 998 costs.  The net result achieved by Scott Macdonald with trial support from Laura Reichenbach was a “walk-away”.

Our client was a trucking company.  The accident involved a tractor/trailer and tractor that collided when one of the vehicles ran a red light.  While the San Bernardino jury found our client negligent, the jury apportioned fault between the parties.

We conceded that a knee surgery was caused by the accident.  We disputed that the lumbar fusion was reasonable and necessary.  We disputed the traumatic brain surgery.  The jury agreed.   The medical bills and lost earnings awarded were consistent with the contentions we made on all counts.   The jury rejected all claims for future economic and non-economic damages.

Unreasonable Leap of Faith – What are friends for?

March 2018, Scott Macdonald with trial support from Laura Reichenbach obtained a defense verdict in Orange County for an incident where an independent contractor fell from a scaffold at our client’s place of business.

We represented a small business owner.  He hired a friend to assist with repairing the box on a bob tail truck.  Our client’s friend utilized a mobile scaffold to work on the side of the truck.  After finishing the day of work, he attempted to disembark the roof of the truck.  In so doing he attempted to step to the outer portion of the of the scaffold and slipped.  As he fell, he sustained a severe injury to his ankle.  This included multiple fractures and a contention that the ankle had essentially been shattered under the full weight of the plaintiff.  He required three surgeries including a total ankle replacement.  Plaintiff sought over a million dollars.

At trial we were successful in convincing the jury that the sole cause of the accident was plaintiff’s negligence in failing to utilize the scaffold properly and for attempting to disembark the vehicle in the manner that he did.  The jury returned a verdict in approximately 45 minutes.