Monday, March 5, 2012

Excess Jury Verdict Against the "Good Hands" People

Matthew Wright – TLC ’11 Grad. TLC List Serve – March 3, 2012

I am pleased to announce that after a short (5 hour) jury trial, my client obtained an excess verdict in an automobile/PI case where Allstate had not made any offer before trial denying both liability and damages in a minor impact soft tissue case ("MIST" - their lingo).

Brief facts:  an elderly male stopped at a yellow light and was rear ended by a younger male.  Damage to the rear of the pick-up truck was not visible and he was not offered an ambulance at the scene so he drove his pickup truck home.  Once home, however, his wife did take him to the emergency room where all x-rays where negative and he was diagnosed with lumbar/cervical strain.  His family doctor ordered several weeks of physical therapy and he was released.  He had a prior hip replacement and some of his therapy appeared to be unrelated to the wreck but may have aggravated his underlying condition.

I took over the case about one month before trial from another lawyer.  We made a policy limits demand of $25,000 with no response or counter.  So, at trial they suddenly stipulate liability and want to argue damages only. I objected because the defendant had denied he was at fault in his deposition.  During voir dire, I used a lot of material from Gerry's "invisible injury" voir dire and told them when I met the client, Mr. Charles Warlick, that I had concerns about presenting his case to a jury when all the diagnostic tests did not show any injury.  When I asked if anyone else shared concerns like I did there was the long awkward pause and then finally an PI insurance adjuster raised his hands to say that he did have concerns about this type of claimed injury and that got the floodgates open and people talking.  We got lucky with one gentlemen who was head of a large agency in Madison County because he also had a lawsuit pending.  So I asked if all his injuries showed up on x-rays.  He replied "no" and so I asked if he still believed he was injured and he said "yes".  He was promptly struck by the defense.

The funniest part of voir dire was the judge (who I had just met for the first time) actually sent his clerk down to our table and gave my co-counsel a note that said, "what is he doing, an opening or voir dire?"  He must have been scared to try to cut me off, because the jury was listening.  After the trial, my co-counsel told me the judge kept looking at him and gave him the cut throat motion, but yet he never tried to shut me down.  I asked the jurors what information they would want to know in order to be able to decide the case and most replied that they would want to hear from my client.  "That's important isn't it?"  "Can you all listen to Mr. Warlick and give me the chance to prove his case?"

Opening I emphasized that this case was solely about whether Mr. Warlick was liar, cheat and fraud (thank you Rick Friedman) or whether he is injured.  I asked them to send him away without anything if they listened and felt in their hearts that he was a liar and had made all this up for financial gain.

Proof was: 1) called defendant driver first and hammered him on stipulating liability after having denied it for over a year and got him to admit that he violated the Tennessee driver's manual by failing to stop for a yellow light.  He said he did not expect the driver to stop at a yellow light; 2) my client (a retired janitor and current lay-preacher, elderly African American man); 3) doctor deposition from treater; and 4) client's wife.

There was long gap where there was no medical treatment and what the defense tried to characterize as "new" complaints of neck pain that had never before been documented.  Mr. Warlick explained that he didn't have enough money to keep going back to the doctor because he was retired and some of his old bills had already gone into collections.

In closing I suggested there was a box of money (a cardboard banker's box) that they hired the defendant to defend (from "Win Your Case").  Defense attorney went berserk over this and asked to approach the bench and said it suggested there was insurance.  The judge told me I had to clarify to say that this was the amount we sought in the complaint and not a "fund".  I got a kick that he didn't want to address the jury about this. 

The Allstate attorney actually made the argument that if "I were hurting, I would go to the doctor in those nine months".  In rebuttal, I pointed out the obvious: "She is a lawyer, Mr. Warlick is a retired janitor on a fixed income and can't afford to spend $100 every time he needs to go"

I had suggested the correct amount was $100,000 of the verdict was.   

After hearing proof, the jury deliberated 45 minutes and gave a verdict of $30,000, which was $5,000 over the policy limits and for which Allstate can be held liable for bad faith and treble damages (and attorney fees) for failure to tender the policy limits after demand was made.

They juror forewoman worked in the healthcare field and my co-counsel had seen her mouth the word, "traction" when my client was trying to describe a procedure he had been through in physical therapy.

Although this is not a large verdict, it will make a substantial difference in Mr. Warlick's life and he was genuinely appreciative and grateful.  This made me feel better than I have felt after some other seven figure settlements clients may have obtained.

I have some thoughts on how I may increase the verdict through eliminating negative anchors. However, it was clear that the smiling jurors thought this was a very large verdict and maybe it was when the offer was zero.  I look forward to making some refinements and getting back in there as soon as I can get another case before another jury.     

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