How We Put a Catastrophic Injury Case on the Fast Track

BY MATT WETHERINGTON

This article is about our efforts to get a catastrophic car wreck to trial as quickly as possible. It is also about a corporation and its insurance company’s efforts to delay trial by any means necessary. These tactics include backing out of signed agreements, late disclosure of experts, and even allowing the at-fault driver to leave the country on the eve of trial. Michael Werner and I ultimately tried the case in June of 2016. We agreed to an excess policy limits settlement while the jury deliberated. Our client, Richard, is one of the nicest people you will ever meet. He is smart, hardworking, and kind. His friends de-scribe him as, “the kind of person I wish I could be.” In 2013, Richard was at a great place in his life. He was 40 years old and in excellent health with a fun and exciting social life. He traveled around the world on mission trips with his church. He was excelling at his job as an architect. After years of focusing on his career, he had finally started looking for a soul mate. Unfortunately, that life changed dramatically at an intersection in the west side of Atlanta. As he was coming home from work, a speeding SUV did not stop at a traffic light and T-boned the driver’s side of his car.

When the dust cleared, Richard was left with serious injuries. Surgeons had to take out and fuse together parts of Richard’s spine. He also suffered through a series of neck injections to reduce his constant pain. But, in the moments after the wreck, Richard did not know he was seriously hurt. When he got out of the car his entire left side started to hurt. He had pain in his arm, shoulder, ribs, and head. He could not hear well out of his left ear. The wreck bruised and battered Richard, but he thought he was okay. He certainly did not think he had a neck injury. His neck did not even hurt at the time.

Meanwhile, the driver of the SUV was yelling at him, “You should have seen me coming!” Richard was too dazed to respond. Someone called 9-1-1, and EMS workers took Richard to the hospital. In the hospital, Richard still could not hear well out of his left ear, but it was improving. At this point, his doctors where concerned about his rib complaints. An X-ray showed that the rib was not broken. They did not perform a MRI on his spine. The doctors concluded that he did not have a life-threatening injury, so he went home battered, bruised, and in a lot of pain.

As many GTLA members know, the effects of serious spinal trauma can take several days or weeks to become symptomatic. For Richard, it took four weeks. One day while he was at work, Richard’s left leg started to feel “tingly.” Then he noticed the same feeling in his left arm, followed by his whole left side. He went to the hospital immediately and they thought he was having a stroke. It was not a stroke. His spinal injury was causing the numbness and tingling.

The wreck permanently damaged the C-5, C-6, and C-7 discs in Richard’s neck. After physical therapy and a series of injections, Richard underwent surgery. His surgeon performed an Anterior Cervical Discectomy and Fusion (ACDF) on all three discs. After his surgery, Richard hired us to represent him.

We immediately gathered Richard’s medical records and completed an initial investigation. The 9-1-1 records revealed an eyewitness to the wreck. She had a clear view of the intersection and placed the blame on the driver of the speeding SUV. Also, his neck injury was not resolved and his doctors were beginning a new round of conservative treatment. If unsuccessful, he would need more surgeries to stabilize his spine. Based on this information, we sent a Holt Demand for the full policy limits. Farmers Insurance denied our demand without explanation.

After a long meeting with Richard, we decided to see how quickly we could get the case in front of a jury. The facts were simple: There were very few witnesses, and it would be easy to complete the trial in three days. Before filing suit, we prepared for discovery and trial. I gathered every discovery request I could find from other Farmers Insurance cases. We then sat down with Richard and answered every question in detail. We met with everyone, including the investigating officer, eyewitness, and emergency workers. We even ordered trial boards of the best photos of the scene and Richard’s injuries. Once we had everything in place, we filed suit against the driver and his company.

Our plan was simple. Give the Defendants everything, serve narrowly tailored discovery requests, and get to trial. Our first test was a fight over venue. The company moved its office after we filed suit and contended that venue was proper only where it moved. We seized the opportunity to set the tone for the entire case. The Defendants filed their motion at 5 p.m. We responded a few hours later. The following morning, the Court issued an Order denying their motion.

Our second test came in the form of discovery requests. We were thrilled to see the same old questions from our prep. We hand delivered our responses within six hours without asserting a single objection. We then immediately followed up with proposed dates for the deposition of Richard and his treating physicians.

Our third test was the speeding SUV driver’s deposition. The driver was the CEO of a business that imports goods from Columbia. His company admitted to negligence and that he was working in the course and scope of work at the time of the wreck. He was rushing to meet with the manager of a local Walmart. In light of these admissions, our goal was to have him admit responsibility, give his version of the wreck, and end the deposition. Surprisingly, he refused to answer basic questions and blamed Richard for the wreck. After the deposition, we added a claim for stubborn litigiousness.

 

Then, silence. No depositions, no discovery requests, nothing. We sent letters each month detailing how much time was left in dis-covery, and repeatedly encouraged the Defendants to depose the treating physicians. They declined our request and discovery expired. We then stipulated to trial with an agreement that “no requests for continuance will be made once the matter is placed on the trial calendar for any reason that could have been avoided by the timely completion of discovery.” We then received a trial date and were ready to proceed. The Friday before trial, the Defendants made two surprising moves. First, they filed a motion to continue the trial so that they could depose the treating doctors. Second, they offered the full policy limits.

 

We initially celebrated after receiving the offer. Then, we took a hard look at his future medical expenses. The policy limits barely covered his past and future medical bills. After agonizing over the decision or several hours, we declined. But, we still had to address the motion for continuance. After a quick hearing and learning of how large Richard’s future medical bills were, the Court granted the De-fendant’s request for a continuance.

Three months later, we were back on a trial calendar. A week before trial, I received a phone call. “We are naming two experts today – an orthopedic surgeon and a radiologist. One of them is in Texas. I am happy to give you an extension if you want to depose them.”Those experts had two opinions. First, they contend that there was no evidence of a herniation and none of the treatment Richard received was necessary. Second, even if there was a herniation, then their opinion was that it was due to aging. The opinions offered by these doctors were surprising, especially since we had several blown up images of Richard’s spine showing the herniated discs. I then sent out a frantic email to GTLA for information on the experts. Thankfully, the experts were well known “videotape doctors.” I received enough testimony from GTLA members to feel comfortable declining the Defendants’ offer of a continuance. We were going to trial as planned.

The following day, we learned that the speeding SUV driver was going back to Columbia to renew his E-2 Treaty Investor visa. The Defendant had missed a filing deadline, and due to immigration laws, was required to leave. After a hearing, the Court reluctantly granted another continuance. The silver lining was that we now had time to depose the Defendant’s experts. They testified as expected and it was a relief to learn that we would have done well if they testified live. Even better, the experts would now testify by video. Once the striking driver renewed his visa, we were back on the trial calendar for a third time.

This time, there were no more excuses. We empaneled the jury and started trial. Every GTLA seminar that I have attended has em-phasized the need to “show your case.” So, we did everything we could to make the wreck and Richard’s injuries come to life. We started with the wreck itself. I had a live demonstration of a side airbag deployment made to demonstrate the forces on Richard’s head and neck during the wreck. Bill Williams at Williams’ Innovative Software and Training built the demonstration. The Court excluded our demonstration on the basis that he did not want a live explosion in the courtroom when a video would make the same point with less noise. We then found several good videos to show the jury.

Next, we focused on Richard’s injuries. We used a life-sized spine throughout the trial to help show the anatomy of the spine and the significance of his injuries. We also had a medical illustration of a cervical injection.

 

Finally, we had a video recreation of Richard’s surgery. The illustration and video were both made by High Impact.      After trial, many of the jurors said that they did not appreciate how invasive and debilitating Richard’s treatment was until seeing the video. Finally, we had several photos and stories to share about Richard’s life before the wreck. Those pictures showed Richard doing mission work in Africa, hiking on mountains and trails of Georgia, and spending quality time with his friends and family. Alongside the testimony of his fellow church members and friends, we believe the jury fully understood the extent of Richard’s damages beyond the physical pain that he endured.

The trial went very well until my cross examination of the Defendant. I was expecting the same stubborn and angry man that I met at his deposition. Instead, a kind and incredibly sympathetic man showed up. When I asked him why he refused to accept responsibility, he im-mediately apologized and began to cry. I fumbled through his impeachment as the jury increasingly became uncomfortable with my “bullying.” In retrospect, I should have thanked him for doing the right thing and sat down. In closing, I apologized for the error and the jury seemed to appreciate my apology.

 

We asked for 10 times the medical bills in closing. The defense attorney did not contest how we valued the case. Instead, he doubled down on causation and argued that the wreck did not cause the herniation. Once the jury retired to deliberate, we began new settlement discus-sions. After receiving an offer well over policy limits, we struggled with accepting the offer or letting the jury decide. We accepted the offer.

After the trial, there was a visible change in Richard’s disposition. He was incredibly thankful for the opportunity to put his case in front of a jury. He was also relieved to have the case over without an appeal, and with the peace of mind that his future medical expenses would be covered. For me, it was an incredible display of courage and determination. We gave Richard all of the information that he needed to make an informed decision. In every instance, he chose to pursue justice. ฀ABOUT THE AUTHOR: Matt Wetherington is a partner at Werner Wetherington. His firm focuses on catastrophic injury, wrongful death, and consumer justice cases. He currently serves as a member of the GTLA New Lawyer’s Division Board. When I asked him why he refused to accept responsibility, he immediately apologized and began to cry.

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