Author: Genevieve Kenizwald

Jury Awards Priest Reasonable Damages for Failed Lumbar Disc Surgery

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.”

Successful Prosecution of Declaratory Relief Action

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.

San Jose Plaintiff Gives Jury Headache But Gets Nothing For His

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.

Magic Flying Mattress Case and a Defense Verdict

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.

Tragic Accident but Defense Verdict

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.

Defense Verdict in Automobile Versus Pedestrian Accident

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.

Reasonable Award For Pedestrian Hit On Crosswalk

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.

Case summary

• Defendant hit pedestrian in a crosswalk
• Plaintiff’s demand: $2.7 million
• Jury’s award: $34,000

Verdict For Insurance Defense Attorney Scott Macdonald In Santa Ana Brain Injury Case

On March 23, 2016, the jury handed down a favorable verdict in a car accident case defended by Scott Macdonald. Macdonald represented an 86-year-old client who drove the wrong way on a city street, causing a head-on collision.

Estimated closing speed between the vehicles was 34 to 43 miles per hour. The collision was forceful enough that air bags deployed in both cars and the drivers went to the hospital by ambulance. The elderly defendant did not sustain significant injury.

The plaintiff, however, started down the path of treatment for orthopedic complaints and retained Larry Parker as counsel. Eventually the plaintiff underwent cervical fusion surgery and declared the need for a lumbar microdiscectomy.

New attorney, different direction

Then, more than three years after the accident, the plaintiff switched attorneys and the focus of the case. They came forward claiming a traumatic brain injury, in addition to the earlier neck and back complaints.

The plaintiff had variously demanded an award of $1 million and $2.3 million. Before the trial began, Macdonald argued that the case was valued between $0 and $89,000 and offered a $300,000 settlement.

The plaintiff refused and presented a life care plan for $4.1 million, with a total award of just over $6.9 million asked of the jury.

While admitting that perhaps the cervical surgery was related to accident, Macdonald disagreed that the collision was the source of the plaintiffs lumbar issues. And he convincingly argued that the plaintiff did not sustain a traumatic brain injury, as they were claiming. The plaintiffs team presented no past medical specials, only medical fees expected in the future.

The shrunken award

When the deliberations were over, the jury awarded $50,314 for future care, $5,000 in past pain and suffering and $5,000 in future pain and suffering. The award was further reduced by 40% for comparative negligence after Macdonald masterfully argued that plaintiff had done nothing to avoid the accident.

Irvine Insurance Defense Attorney Holds Award in Drunk Driver Case to Zero

February 2016, In this Long Beach case, Scott Macdonald brilliantly defended a drunk driver who rear-ended a stopped car. The facts were simple. The defendant driver, a doctor, hit a retired couple’s car while they were stopped at a red light. Two hours after the accident, the doctor registered a .20 blood alcohol level on a breathalyzer test at the police station. He pied no contest to the drunk driving charge.

Both plaintiffs went to their family doctor the day after accident. The wife followed up with four physical therapy visits. The husband, already being treated for a repetitive stress injury to his wrist, claimed that the collision exacerbated his problem. He contended that he ultimately required surgery because of it.

The defense team offered a settlement, but the plaintiffs had invested heavily in their case, hiring expert witnesses and more. They chose not to accept the offer.

A $1 million demand

The plaintiffs asked the jury for a total of nearly $1 million. In addition to the claim for injuries, they requested a hefty sum for punitive damages.

With not a single medical bill presented by the plaintiffs, Macdonald argued that the couple did not sustain injuries from the accident, and the jury agreed.
Instead, the couple wanted to be compensated entirely on the grounds of pain and suffering in the golden years of their retirement life.

The case hinged on jury instructions

While admitting the accident involved alcohol, Macdonald instructed the jury that it wasn’t their job to invoke punishment. A civil trial requires that the plaintiffs prove they experienced injuries and related costs, before there can be punitive damages. “You can’t give an award simply to compensate for anger,” he said.

Macdonald received a defense verdict and the plaintiffs received no award.