Author: Genevieve Kenizwald

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.

Severe Accident with Continuing Psychological Trauma

February 2018, Plaintiff sought over $3,000,000 after our client, an employee of an entertainment company, rear-ended his motorcycle on the freeway.  Plaintiff required a knee surgery which we conceded was caused by the accident.  Plaintiff also claimed that he had serious psychological problems including the need to use the restroom every time that he got into an automobile.

Plaintiff refused to reasonably negotiate prior to trial.  The matter was tried to verdict in San Bernardino by Scott Macdonald and Nadin Said, with trial support from Laura Reichenbach.  The jury returned a verdict of $280,000.   The parties entered into a high/low agreement at trial which was a significant relief to our client who was concerned about exposure over their commercial policy CGL limits.

Following trial, plaintiff continued to be disappointed with the result and sought significant costs.  Of the costs sought, the Judge awarded roughly $16,500.  The matter was resolved by way of request for dismissal and settlement agreement, and no judgment was entered against our clients.

Reasonable Result For Cervical Fusion Surgery

January 2018, Our client, a business that operates tractor trailers was sued after one of its drivers rear-ended a vehicle in which plaintiff was a rear-seat passenger.  The damage to the vehicles was significant.  We admitted liability and Scott Macdonald tried the matter on damages.

The plaintiff was a 28-year-old marketing representative and photographer.  He underwent a cervical fusion surgery.  Plaintiff’s neurosurgeon testified that the surgery was unsuccessful and that in addition to adjacent segment dysfunction, plaintiff would require additional surgery to cure on-going symptomatology.  Claimed past medical damages were significant and roughly $168,000.  Claimed future necessary future medical specials were significant and roughly $300,000.  Our experts disputed that the original surgery was necessary, that there was any significant injury and that reasonable medicals were in the range of $30,000 to $40,000.

The matter was tried to a jury in Pasadena.  The trial was very eventful as plaintiff’s neurosurgeon repeatedly violated Court orders regarding evidence and was censured by the Court for so-doing.  In addition, the trial Court entered a ruling that plaintiff’s neurosurgeon had not utilized his best efforts to locate and produce a video of the surgery that had been properly and timely requested in discovery.  After ruling that the video was inadmissible, the witness persisted in mentioning its existence to the jury.

The plaintiff had an extensive social media presence.  We effectively utilized this information to contradict claims of past and continuing injury.  This case was a prime example of the effective use of social media at trial.

We offered $350,000 by way of CCP 998 prior to trial.  Plaintiff asked the jury for $1.9 million, and demanded $875,000 while the jury was deliberating.  The jury awarded plaintiff $265,000.

Policy Limit Settlement at Trial

November 2017, Scott Macdonald and Michael Cody obtained a policy limits settlement during trial.  This was a unique case in which a low-impact case had been settled for $500 following the collision.   The validity of the release was challenged.  The carrier subsequently tendered the volume of the $15,000 policy limits.  Despite the low-impact nature of the collision, the plaintiff underwent a knee surgery and alleged significant continuing back problems.

After an unsuccessful summary judgment, the matter was forced to trial.  We brought well-drafted motions in limine to the “trial Judge” (those of you that practice in Los Angeles will understand this) whose comments and questions created the impression that once the evidence was in, we would prevail.  During jury selection, plaintiff conceded and we resolved the matter for the policy limits.

Bakersfield Brain Damage – DUI Case With 40% Negligence On Opposing Driver

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.

Bakersfield Brain Damage – Jury Convinced Plaintiff Unhurt and Not Credible

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.