Plaintiff Fails to Obtain Arbitration Award in Excess of Defense Offer
On March 24, 2023, Rory Leos obtained a successful binding arbitration award in an admitted liability auto accident case. The plaintiff was a 59-year-old woman who claimed a right should injury which she alleged caused a severe right shoulder pain which was a daily constant. The accident occurred on the freeway, and it was alleged defendant did not stop after hitting plaintiff’s vehicle.
Plaintiff testified that she felt pain in her neck and shoulder immediately following the accident, as well as bruising to the chest. Plaintiff consulted with an orthopedic surgeon for right shoulder pain. Upon examination, plaintiff was diagnosed with cervical strain and right shoulder strain, and it was recommended she have a cortisone injection in her right shoulder. Plaintiff had two cortisone injections to the right shoulder. Plaintiff also completed 24 physical therapy sessions. An MRI of plaintiff’s right shoulder revealed degenerative changes (wear and tear) consistent with plaintiff’s age. The total charges for plaintiff’s medical care were $23,610.00. All of plaintiff’s medical treatment was provided on a lien basis.
At arbitration, plaintiff argued that her pain was constant and that it interfered with her sleep and her participation in various activities. Plaintiff claimed she could not raise her arm above her head.
Mr. Leos argued on behalf of the insurance carrier that plaintiff did not sustain a significant right shoulder injury as a result of the accident, other than soft tissue strains. The defendant called a board certified orthopedic doctor as his expert. The doctor opined that plaintiff’s soft tissue injuries should have resolved within 3 months. It also was argued that any ongoing pain claimed by plaintiff is the result of plaintiff’s pre-existing degenerative changes in the right shoulder and not caused by any trauma from the accident.
Plaintiff made a policy limits demand of $300,000. on December 11,2020, prior to filing suit. During the pendency of the lawsuit, defendant served a 998 Offer to Compromise for $90,000. Defendant increased his offer to $50,000 to settle prior to arbitration. Plaintiff refused.
Prior to arbitration, the parties agreed to a “high / low” of $30,000 to $300,000. After one day of arbitration, plaintiff asked for an award of $145,000. Defendant asked for an award of $30,000. The arbitrator awarded plaintiff $50,000, only slightly more than the “low” of $30,000, and the same amount defendant had offered prior to arbitration.Read More
Macdonald & Cody Obtain Favorable Verdict for a Fraction of Plaintiff’s Workers Compensation Lien
In November 2022, Scott Macdonald and Elizabeth Tingen obtained a favorable award in downtown Los Angeles in a 2-vehicle intersectional collision case. The subject accident occurred on West Third Street in Los Angeles. Defendant was attempting to turn left onto West Third Street from Laurel, and a vehicle in the number 2 0f 2 westbound lanes had stopped to wave him through. Defendant proceeded to make his left turn by pulling in front of the stopped vehicle, stopped again and looked for traffic in the number 1 lane. Not seeing any oncoming traffic, Defendant continued his left turn, however Plaintiff was approaching at 30-40 miles per hour and collided with the front left of Defendant’s vehicle. Plaintiff was in the course and scope of his employment as a field service technician at the time. Plaintiff told Defendant at the scene that he was okay, and took pictures of his face and of an abrasion on his left shin. Only when the ambulance arrived did Plaintiff start claiming he needed medical attention. He was taken to the emergency room by ambulance.
Plaintiff claimed a bone bruise in his dominant left hand, torn meniscus in the right knee as well as injuries to his left knee, and severe aggravation of pre-existing PTSD from his years in the military. Plaintiff claimed his PTSD prevented him from being able to drive and therefore, he was unable to work in his pre-accident job as a field service technician.
At trial, Defendant was able to present to the jury evidence of Plaintiff’s 4 prior workers compensation claims arising from prior car accidents and slips and falls, which involved bilateral knee injuries and PTSD. Treating physician testimony revealed Plaintiff had no complaints related to PTSD symptoms associated with driving until 3 months after the accident, right around the time when his physical symptoms had improved. Defendant was also able to present sub rosa footage of Plaintiff driving on the freeway while running errands throughout the day, which Plaintiff claimed at trial he could not do, and of Plaintiff lifting a child up onto his shoulders, despite his claimed wrist pain.
Plaintiff asked the jury to award $150,627 in past medical expenses for physical therapy, right knee surgery, and over 2 years of consistent psychotherapy sessions, for $140,325 for continued psychotherapy, physical therapy and treatment of the left wrist and both knees. Plaintiff asked the jury to award over $1.5 million in past and future loss of earnings. Plaintiff’s total ask of the jury was $5,071,002. Defendant asked the jury to award past medical specials for some physical therapy and psychotherapy as well as 6 months of past earnings.
At a mandatory settlement conference one month prior to trial, the mediators made an unsolicited mediators’ proposal for $750,000. Plaintiff never made a demand under $1 million. Defendant had done a valid 998 for $250,000 and another valid 998 for $350,000 before trial and tried twice during the trial to settle.
After about two hours of deliberation, the jury returned a verdict for $39,709 in past meds, $0 for future meds, $39,000 in past loss of earning, and $0 in future loss of earnings. They awarded $25,000 for past pain and suffering and $0 for future pain and suffering, for a total verdict of $103,709. The jury also found Plaintiff 40% at fault for the collision, resulting in $62,225.40 in total damages awarded to Plaintiff.Read More
Macdonald & Cody, LLP Obtain Defense Verdict in San Diego Leg Amputee Case
On November 10, 2022 Joseph Fitzgerald of Macdonald & Cody, LLP was able to obtain a defense verdict in a leg amputee case. Macdonald & Cody’s client was in the course and scope of his employment while delivering a pizza when he made a left turn into a complicated intersection and collided with a motorcyclist. The motorcycle driver required a below the knee amputation after 6 failed surgeries. A local home security camera was able to capture the accident, showing the motorcyclist rolling through a stop sign and into the intersection just before the accident. Further, medical records indicated that plaintiff had consumed alcohol on the night of the accident. Minutes before closing arguments, the defense made a settlement off of $3,000,000. It took the San Diego jury 90 minutes to return a defense verdict.Read More
Macdonald & Cody, LLP Protects Client in $4M Wrongful Death Verdict
On October 21, 2022, Joseph Fitzgerald of Macdonald & Cody, LLP was able to protect his client from a $4,000,000 Wrongful Death verdict by proving to a Ventura Jury that his client was in the course and scope of employment. Macdonald & Cody’s client, a car salesman, was called into work on his day off to complete a sales transaction when the fatal accident occurred. The client’s employer and defendant in the case, contended that the salesman was in the course and scope of his employment because he was simply driving into work. The Ventura Jury returned a verdict after 2 weeks of trial finding vicarious liability against the dealership and awarding the family $4,000,000.Read More
Successful Result in Motion for Summary Judgment
In a wrongful death action, associate Danielle Boyd recently obtained summary judgment for our client.
Plaintiffs’ decedent lost control of his motorcycle going over 100 miles per hour on a transition road to another freeway and grazed the right rear bumper of our client’s vehicle. Upon losing control, the decedent’s motorcycle hit a curb and a guardrail, causing decedent to be ejected from the motorcycle. Decedent landed in a tunnel of a transition road where he was subsequently struck by multiple motorists. Plaintiff alleged that our client was negligent when driving and caused the accident.
In preparing this case for summary judgment, extensive, targeted discovery was conducted and multiple depositions were taken to explore the facts of the multi-vehicle accident.
The successful Motion for Summary Judgment was brought under Plaintiffs’ failure to establish breach of a duty as well as causation, necessary elements of the cause of action pleaded. The court agreed with our arguments in that we satisfied the prima facie burden to show that the wrongful death claim based on negligent driving cannot be established. There was no evidence our client was driving negligently. Instead, there was clear evidence that the decedent was driving negligently at the time the accident occurred.Read More
Double Lumbar Surgery Defense Verdit
On June 23, 2022, Scott Macdonald and Douglas Carasso received a defense verdict in the Historic Courthouse in Riverside, California.
On March 23, 2018 plaintiff, a 47 year old man was driving his 2004 Ford F150 pickup. He was stopped for a metered signal light at the end of an onramp to the 15 freeway Norco. Defendant, a 74 year old, was driving her 2002 Honda Accord also attempting to enter the freeway. She did not see brake lights plaintiff’s vehicle. Once she realized that plaintiff was stopped, she slammed on her brakes and swerved to the right. She was unable to avoid impact.
The impact was minor. The defense hired an accident reconstruction/biomechanical expert who opined that the delta-V was between 7 and 9 m.p.h. and that such impact was unlikely to cause injury. Plaintiff also retained a biomechanical expert. Plaintiff argued that he was an “eggshell” plaintiff. Plaintiff’s expert opined that an eggshell plaintiff might expect injuries from the minor impact.
Plaintiff sought no emergency care but told investigating officers that he had pain down both legs. He did not seek any treatment for 18 days. He then started chiropractic treatment and would eventually treat 87 times. He tried a single epidural injection which provided no relief. He then saw a spine surgeon who recommended a fusion. Six months later he saw a second spine surgeon who recommended a micro-decompression. That surgery was performed in August, 2019. Plaintiff had only temporary relief following his first surgery. His surgeon then performed a spinal fusion surgery in March, 2021.
Medical specials were $450,000. Both sides had billing experts. The defense expert reduced bills to $145,000. The plaintiff expert reduced bills to $299,000. Plaintiff’s orthopedic surgeon testified. He testified to his treatment and that the plaintiff would develop Adjacent Segment Disease at a rate of 3% per year and would eventually need surgery. The defense expert said that conservative care had not been attempted and the surgery should not have been done unless conservative care had failed. The defense expert said that performing surgeries was not below the standard of care. The defense expert was of the opinion that plaintiff would not need a future surgery. Plaintiff hired a Life Care Planner who opined that the plaintiff would need roughly $750,000 in future case. The defense Life Care Planner opined that $17,000 in future care was reasonable given the fusion. Plaintiff asked the jury to award $6,233,000.
The jury deliberated for approximately two and a half hours. The jury returned a finding of no causation and awarded the plaintiff nothing. The defendant had a $100,000 policy. Plaintiff claimed that the policy was “open”.Read More
Jury Finds Multiple Pain Management Procedures Were Unreasonable and Unnecessary
On May 10th, 2021, Scott Macdonald and Elizabeth Tingen secured a favorable verdict in Orange County. The subject accident occurred on Pacific Coast Highway in Huntington Beach. Plaintiff had come to a sudden stop and was rear-ended by Defendant. Plaintiff’s vehicle was pushed into the vehicle ahead. Plaintiff drove himself to the hospital where he was treated and released. His primary care physician recommended physical therapy. He want to a couple of visits, but then elected to stop his treatments and seek pain management procedures which had been recommended to him by attorney-referred doctors. Plaintiff acted upon those recommendations and underwent two radio frequency ablations, one facet block, one trigger point and one epidural steroid injection. Plaintiff claimed the need for a spinal cord stimulator to control ongoing pain. Plaintiff asked the jury for $82,000 in past medical bills (reduced from a gross number of $137,000) and $145,000 in future medical expenses. Plaintiff sought more than $1.7 million from the jury.
Defendant disputed that the injury was anything more than a soft-tissue injury. Defendant presented expert testimony to establish that the numerous and invasive procedures were neither reasonable nor necessary considering the failure of plaintiff to follow his own physician’s advice to seek supervised physical therapy which the therapist testified should have been sufficient to promote the healing plaintiff claims did not occur. The defense argued that the jury’s award should not exceed approximately $60,0000.
Defendant had offered $150,000 prior to trial. Plaintiff refused to negotiate off the policy limits.
The jury returned a verdict of $59,503.92. This consisted of $27,503.92 in past medical specials, $2,000 in future medical specials, $30,0000 in past and suffering and no future pain and suffering.Read More
Defense Verdict in Pedestrian v. Automobile Case
November 2021: Scott Macdonald and Doug Carasso of Macdonald & Cody, LLP secured a defense verdict in Long Beach Superior Court. The accident occurred in the City of Los Angeles on Franklin Avenue near the Canyon Drive intersection. The plaintiff was a 30-year-old jogger who had entered Franklin on her regular morning run to Griffith Park while the defendant was lawfully driving his motor vehicle within the speed limit. Defendant was also on a “hands-free” cell phone call. Defendant was unable to avoid the plaintiff who had suddenly appeared from behind parked cars outside of any crosswalk. This led to plaintiff’s ending up on the hood of defendant’s car, hitting her head on the windshield, and being thrown to the ground. Plaintiff sustained a severe traumatic brain injury, a fractured hip, abrasions to her legs, and additional injuries.
The defense was able to secure a bifurcated trial, though in the Liability phase plaintiff’s counsel was permitted to advise the jury that plaintiff could not recall the subject accident because of the brain injury caused by the accident. In the Liability phase, defendant’s experts convinced the jury that because plaintiff was running or jogging at the time of impact, the accident was unavoidable for defendant. Plaintiff contended she was slowly walking when defendant’s car hit her. But defense counsel and their accident reconstruction expert pointed out that had she crossed the roadway in this manner (1) it would have been contrary to plaintiff”s and her boyfriend’s deposition and trial testimony, and (2) it would have caused severe lower-limb injuries to plaintiff rather than just abrasions.
Before trial, plaintiff was demanding $15 million to resolve this case. Plaintiff served 998 for $4,750,000. Defendant had offered his policy limits, but plaintiff refused to accept it as they contented that the policy was”open”.
The jury (9-3) found Defendant was not negligent at the conclusion of the Liability phase.Read More
Re-Trial of Hung Jury Results in Unanimous Defense Verdict After 40 Minutes with Liability Admitted
In May 2021, Michael Cody and Danielle Boyd secured a unanimous defense verdict in Fresno County in an admitted liability automobile accident case. The accident occurred in a rural intersection outside of Fresno in Kingsburg, California. Plaintiff, a 37-year-old married mother of 5 children was driving an SUV with two of her minor children in car, including her 8-month-old daughter. As Plaintiff’s vehicle entered the intersection, the 78-year-old Defendant did not stop at the stop sign for cross-traffic, t-boned Plaintiff’s SUV on the passenger side, spinning it around. Defendant’s vehicle ended up stuck in a fence. After the vehicles came to rest, the Defendant tried to free his vehicle from the fence, accelerated and struck Plaintiff’s vehicle again, this time on the driver’s side. The collision was so violent that it caused one of the children’s car seats to smash through a rear window.
18 months before the accident, Plaintiff had suffered a stretch injury to her sacral plexus – the nerves that innervate and control function for her female reproductive organs and bladder – while giving birth to her 4th child. Plaintiff contended that her birth injury had completely resolved prior to the accident, even to the point of allowing her to conceive and give birth to a 5th child during that 18-month period. Plaintiff argued that the accident severely reaggravated her prior injury, resulting in a permanent loss of feeling to her female reproductive organs and bladder, and loss of bladder control. Plaintiff’s husband claimed loss of consortium for the diminished sexual intimacy the couple had after the accident.
The first trial took place in 2018 and resulted in a mistrial with a deadlocked jury. In March 2021, Defendant served a 998 Offer for $100,000 – representing the entire policy limits. Plaintiffs rejected the Offer, claiming the policy was open.
In a two-and-a-half-week trial, Plaintiff presented testimony of many treating physicians and an expert in urology and female pelvic medicine and reconstructive surgery. Plaintiff’s expert testified that the impact of the accident cause Plaintiff’s pelvic organs to shift, causing a stretch injury to the sacral plexus with resulting nerve damage. The expert testified that because the nerves were previously injured, they would not be able to recover from this subsequent injury and she would be permanently numb.
Defense presented an expert ob-gyn that refuted the opinions of Plaintiff’s and testified that Plaintiff had a prior nerve injury that had not fully recovered, despite Plaintiff’s claim to the contrary. There were no medical records documenting a 100% pre-accident recovery of the original birth injury. Plaintiff asked for $700,000 for herself and $300,000 for her husband. The jury returned a 12-0 defense verdict after only 40 minutes of deliberation.Read More
Policy Limit Demand Leads to Zero Dollar Award at UIM Arbitration
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