In August 2021, Douglas Carasso successfully defended an insurance company at binding arbitration in an underinsured-motorist action brought by the driver of the middle car in a three-vehicle chain-reaction freeway accident. Claimant alleged soft-tissue injuries to his back, neck, and shoulder, and then, most significantly, traumatic brain injury causing mental impairments continuing over six years and beyond after the 2015 subject accident. Claimant’s TBI claim followed his seeing neurologists and psychiatrists who documents that Claimant had suffered a TBI as a result of the motor-vehicle accident.
The case had originally been handled by insurance company counsel, while Claimant’s counsel was demanding no less than the full $300,000 policy limits less the $15,000 already recovered by the Claimant from the at-fault driver who vehicle had rear-ended his. Going into the binding arbitration, Claimant continued the full policy limits.
At arbitration, Claimant presented lien-based past medical charges of $54,967.50, an expert-based claim of future neuropsychological therapy charges at $105,000, past pain and suffering at $471,200, future pain and suffering at $1,681,920, and thus a total-damages claim of $2,313,087.50. Based on these numbers, Claimant demanded the available amounts under the full $300,000 policy limit, while also threatening that after this recovery Claimant would sue the insurance company for bad faith.
Mr. Carasso argued that Claimant had overstated, exaggerated, and contradicted himself in his injury and damages claims, including that he suffered a TBI and yet was able to recall many details before, during, and after the accident and further that he promptly returned and maintained for years a mentally demanding job. Mr. Carasso also effectively cross-examined Claimant’s neuropsychological expert by getting him to admit that the medical-record documentation of Claimant’s TBI diagnoses was based on Claimant’s self-reported subjective symptoms and no objective testing, and further that this expert’s testimony was contrary to the medical science on traumatic brain injuries as to their cause and duration. Mr. Carasso further presented the defense’s neuropsychological expert who had examined Claimant and effectively testified that Claimant never sustained any TBI in the accident.
In addition, Mr. Carasso presented the police report and biomechanical-expert analysis asa to how minor the impact was and so was unlikely to cause anything more than transient soft-tissue injuries. Persuasive live testimony was also presented by defense experts in the fields of neurology, radiology, and orthopedic surgery that limited Claimant’s orthopedic-injury claims and refuted his TBI claims, including by showing that the only actual treatment Claimant received was chiropractic and that he never received any mental-health care or treatment. Mr. Carasso argued that this failure to obtain treatment was a failure to mitigate.
Mr. Carasso present experts in the fields of neurology and radiology who capably refuted Claimant’s TBI-injury contentions, including his coup-contrecoup claim, based on their testimony that the medical records and films were all contrary to such a claim. A further effective way that Mr. Carasso pointed out that Claimant did not sustain a TBI was by highlighting both in cross-examining Claimant and in presenting the defenses’s neurology expert’s testimony that Claimant still has a clear recollection of the before, during, and after of the accident, devoid of any anterograde or retrograde amnesia, a telltale sign of TBI.
Ultimately, Mr. Carasso argued that Claimant did not sustain any traumatic brain injury and thus Claimant had failed to meet his burden of proof. The arbitrator agreed with the defense and issued a zero-award to Claimant, finding that while it may be a “possibility” that Claimant had sustained a TBI, Claimant failed to meet his burden of proof by a preponderance of the evidence that any of Claimant’s injury claims was the result of the subject accident. The arbitration award of zero dollar was thus $2,313,087.50 less than Claimant’s counsel’s demand for a finding in this amount, and so it prevented Claimant from pursuing any relief in a long-threatened subsequent action against the insurance company.Read More
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 More
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 More