November 2015, Michael Cody successfully defended a young Los Angeles City engineer who had rear-ended the plaintiff on the freeway at a fairly significant speed. Plaintiff was a 58 year old Thai immigrant who had fled Thailand during the Vietnam war and worked as a courier for a large Hollywood movie studio. Plaintiff claimed to have suffered a torn ACL in his right knee and serious injuries to his cervical and lumbar spine as a result of the accident. 10 months after the accident Plaintiff underwent right knee reconstruction surgery. 18 months after the accident, Plaintiff underwent a 2-level cervical fusion surgery.
The case had been handled by insurance company staff counsel, during which time no depositions were taken and neither party served a demand to exchange expert witnesses. Counsel for plaintiff refused to budge off the demand for the entire $1 million insurance policy. Michael was called upon to take over the case just 5 days before trial. During those 5 days, the insurance company made an offer to settle of $650,000. Counsel for plaintiff countered at $995,000.
At trial, Plaintiff presented lien-based past medical charges of $445,000. Plaintiff also present past loss of earnings of $50,000. Plaintiff’s spine surgeon testified that he would need additional future cervical spine surgery at a future cost of $250,000. Plaintiff’s knee surgeon opined he would eventually need a total knee replacement at a cost of $75,000. Plaintiff also claimed lost future earnings of in excess of $100,000. Plaintiff requested $4.5 million from the jury.
Michael argued that while the knee and neck surgery were reasonable given plaintiff’s symptoms, the need for the surgeries was not related to the accident. The defense radiologist opined that the ACL tear was more than 10 years old and not related to the accident, and that the cervical spine issues were caused by severe pre-existing degenerative conditions. Michael argued that the need for future surgery was not established to a reasonable degree of medical certainty.
The jury agreed with the defense, and did not find either surgery related to the accident. The jury also did not award any damages for future medical care. The jury returned a verdict of $408,000, less than the past medical expenses alone and far less than the pre-trial offer.Read More
In 2015, Scott Macdonald earned a significant victory in an Orange County car accident case. His defense of the driver, who rear-ended a car driven by a 51-year-old school teacher, limited the award to $502,000 when the plaintiff was seeking $3.5 to $5 million.
The accident caused major damage to the rear of the plaintiff’s car, as well as totaling Macdonald’s client’s vehicle. The teacher had a considerable period of disability following the accident, and claimed she could only work at 60% capacity once she had recovered. Her full-time teacher’s salary was roughly $108,000 per year.
Eventually she had cervical fusion surgery, and maintained that she did not fare well. After the surgery, the plaintiff claimed she was totally disabled and unable to work. She asked the court for nearly $1.9 million in combined medical costs, damages and lost earnings, plus between $1.6 million and $3.2 million in future pain and suffering.
Although it was clear the plaintiff sustained some injury from the collision, Macdonald showed the jury there were additional factors to consider. For example, for years prior to the accident, the teacher’s work history had been spotty because of complications from an earlier back injury.
The plaintiff’s team claimed that a failed neck surgery, which had been necessitated by the accident, was to blame for the teacher’s disability. But the jury didn’t agree.
Although the sizable impact to her car could have produced injury and the need for neck surgery, the plaintiff’s earlier back problems were relevant to the case. Macdonald convinced the jury to compensate the teacher with a reasonable award, taking into account her preexisting condition, rather than the extraordinary amount for which she was asking.
A reduced award
The jury granted the teacher close to $502,000, a fraction of her request. It included roughly $289,000 for past medical expenses, lost earnings, and pain and suffering, and $106,000 to cover future lost earnings and future pain and suffering.Read More
On February 25, 2015, Scott Macdonald secured his second defense verdict of the year, in the Los Angeles Superior Court, Torrance Courthouse. In the low-speed, car versus car accident case, the jury voted 12 – 0 against the plaintiff after just 50 minutes of deliberation.
The plaintiff claimed that as a result of the accident, he required lumbar fusion surgery. Macdonald proved to the jury that although his client admitted fault for the collision, her negligence was not a substantial factor in causing the injuries being claimed.
In the May 2010 accident, the defendant and plaintiff stopped for stop signs at a controlled intersection in Malibu. The defendant attempted a left tum and was temporarily blinded by the sun. She cut the comer too sharply and collided head-on with the plaintiffs vehicle. Neither car sustained much damage, and the defendant admitted fault for the accident.
The plaintiff had a long history of back complaints, including discectomies in 2001 and 2003. However, he denied having any significant back pain from 2004 to the time of the 2010 accident.
Instead, the driver claimed he was an eggshell plaintiff, more susceptible to injury than an average individual would be. He maintained that while the accident was minor, he experienced a significant worsening of his condition. After more than a year of physical therapy and multiple epidural steroid injections, the plaintiff finally had lumbar fusion surgery in 2013.
Building a Solid Case
Through use of medical records and expert witness testimony, Macdonald showed that the plaintiff already had significant back pain: following a 2003 surgery, leading up to 2009 and into 2010. Also, because the plaintiff did not seek treatment for seven weeks following the accident, Macdonald was able to establish that there had been no immediate change in symptoms.
Expert witnesses stated the accident was not forceful enough to cause a structural change to the plaintiffs lumbar spine. Their opinion: the plaintiffs surgery was not a result of the accident, but because of a continuing and worsening degenerative condition.
After the unanimous verdict, jurors commented that the evidence illustrated that the plaintiff had not been injured in the accident, or he would have sought immediate treatment. The jury was convinced the accident did not create the need for surgery.Read More
On January 13, 2015, Scott Macdonald secured a defense verdict in a car vs. motorcycle collision trial in Riverside Superior Court. Although Macdonald’s client had turned her car left in front of an oncoming motorcycle, he proved to the jury that circumstances gave her no realistic opportunity to avoid the collision.
His client was insured with a $30,000 liability policy, and the policy had been tendered. The plaintiff argued that the policy had not been timely tendered and had demanded $300,000 during litigation and requested that the jury award nearly $500,000.
The plaintiff’s injuries
The plaintiff, a UC Riverside student, sustained traumatic tears of her ACL, PCL and LCL ligaments as well as a fractured pelvis. Also a Navy veteran, she had served aboard the USS Boxer when that ship participated in the liberation of Captain Phillips from Somali pirates.
Although the plaintiff used a liability expert, Macdonald was successful in earning a defense verdict without employing experts. The jury found that while his client was negligent, that negligence was not a substantial factor in causing the plaintiff’s injuries.
The jury found that the plaintiff was speeding and a bend in the road created a vision obstruction, which severely hindered the defendant’s ability to evade the accident.
About the attorney
Litigator Scott Macdonald has more than 20 years of experience in casualty cases, and is often called on for complex or high exposure matters. He has managed cases involving catastrophic injury including wrongful death, paralysis, amputation, traumatic brain injuries and others.Read More