HOW WE OBTAINED JUSTICE
A Shattered Life:
How Time and Patience Led to Justice
BY CHASE SWANSON AND DREW ASHBYThis trial was a long time in the making. We believe it was the last verdict before COVID-19 brought our judicial system to a halt. In fact, the jury rendered its verdict less than 18 hours before Chief Justice Harold Melton entered his first Judicial Emergency Order on March 14. By that time, over seven-and-a-half years had elapsed since the collision, and much had happened.
Michael Wells, following in his father’s footsteps, joined the Cherokee County Sheriff’s Department straight out of high school. He worked his way through the jail and then the traffic division, and after years of training he finally fulfilled his professional dream of making the S.W.A.T. team in his late 20’s. Mike didn’t stop there. He continued to better himself in the classroom, attending and completing a multitude of advanced certifications. On June 11, 2012, Mike was headed home from taking one such exam in Columbus, Georgia, and in an instant the world he knew was turned upside down.
On I-185 between Columbus and Atlanta, the driver of a blue minivan decided to put everyone on the road that day in jeopardy by quickly slowing and making a U-turn across the grass median. While several vehicles, including Mike, were able to avoid the van and each other, a parts truck behind him was not, and slammed into Mike’s government-issued Tahoe, going over and through it.
About the only thing left intact was Mike’s driver’s seat. Still, he got out and even tried to help those around him, but he quickly realized he was the one in need of attention.
Despite several months of physical therapy, Mike’s neck and back pain persisted. He had his first back surgery, a laminotomy and discectomy, in 2013. Unfortunately, that procedure turned out to be more the beginning than the end, as Mike would eventually undergo two more back surgeries, a neck fusion, and finally a spinal cord stimulator. By then, the once CrossFit-competing S.W.A.T. leader and fun-loving father of two young children would be but a shell of his former self.
The suit was initially filed in Forsyth County against the striking truck driver and his employer, as well as John Doe (the van driver that fled the scene, so his identity wasn’t known). Because Mike’s Tahoe was owned by Cherokee County, it was covered by the county’s $1,000,000 uninsured/underinsured motorist policy with OneBeacon Insurance.
As we proceeded through discovery, the UM carrier filed a Notice of Non-Party Fault naming Kevin Jernigan as the driver of the van. It did so based on a State Patrol investigation that found a man named Kevin Jernigan – who fit the description of the van driver – walking along the road an exit up the highway. Later that night, they discovered the van at-issue abandoned behind a gas station nearby where Mr. Jernigan was walking. The tag on that van was registered to a completely different vehicle. That different vehicle was registered to Kevin Jernigan. It all came together.
The carrier’s knee jerk reaction to the information turned out to be one of many unforced errors. As a result, we added Mr. Jernigan as a defendant, and moved the case to the more favorable venue of Muscogee County, where he resided.
Late in 2016, we attended a mediation with both the trucker’s insurer and the UM carrier. Fortunately, we were able to resolve the claim against the truck driver and his employer, but the UM carrier offered just $25,000, reasoning that there could be some medical causation defenses, or that the driver of the van would be allocated only minimal responsibility, or both. We disagreed, and the case proceeded towards trial. Despite ongoing treatment, medical bills in the high six-figures, and multiple medical depositions confirming the collision was the source of Mike’s injuries, the UM carrier never budged.
The Honorable Gil McBride – a wise, approachable, and easy going judge – presided over the case in Muscogee County. With only two civil jury trial calendars a year and several rounds of conflicts, it took about a year to get the case pinned down for a trial date.
Shortly before the pre-trial conference, Chase asked Drew Ashby for his expertise in motions practice, to assist with trial strategy, and to help try the case. Drew and his paralegal Maegan Knight reviewed the file with fresh eyes. The simplicity of the case was apparent, but the defense’s theory was not. How could they avoid the fact that the collision would have never happened without Kevin Jernigan essentially stopping to make an illegal U-turn in the middle of a crowded highway? How could they ignore that Mr. Wells’ injuries were permanent and life-altering?
We were so confused by the carrier’s position that we thought they must be waiting to spring some procedural or evidentiary trick. We therefore filed around 30 motions in limine to smoke out any conceivable defense game. The result was surprising. We prevailed on virtually every one of them, and the defense’s evidence was curtailed – sometimes even by agreement. In the end, the defense had no tricks to spring during trial. They merely denied the obvious with confidence, hoping that a jury would buy it.
Well, almost no tricks. The carrier’s most important motion hinged upon sleight of hand; or, as they put it, creative argument. The UM policy at issue had a provision stating, in essence, that it would not provide any coverage for injuries or damage that was, or could possibly be, covered by another policy of insurance. Since most of Mr. Wells’ medical bills were covered by a separate workers’ compensation policy, the carrier argued that all evidence of medical bills should be excluded at trial (since the only fight is over UM money, and the UM policy – they argued – doesn’t cover any of those damages). This, of course, was ludicrous, and the defense had no authority to support its argument. Courts do not strike any evidence of punitive damages just because an insurance policy specifically excludes coverage for them. The Court saw through their arguments and denied their motion.
As expected, none of this changed the carrier’s evaluation of the case. In fact, the adjuster stayed in Texas, never to step foot in the courtroom, see the attorneys, or even lay eyes on Mike. While we were confident in our case and our client, we continued to leave the door open for settlement, but the carrier’s position remained consistent – no new offers. Twenty-five thousand dollars was their top dollar. The die was cast. We would try the case.
AN ABSENT DEFENDANT
Less than two days before the pre-trial conference, we decided to dig more into the background of the Defendant, Kevin Jernigan. To our shock, we discovered that Mr. Jernigan had been stabbed to death by his identical triplet several months before. Truth is often stranger than fiction.
We did not want any further delay, and we had no time to create an estate. So, we devised a strategy to substitute a fictional “Estate of Kevin Jernigan” as the defendant, get the carrier to stipulate on the record that they would be liable for any judgment against the fictional estate, the jury would not hear any evidence or argument about the death itself, and no one could comment on the absence of an estate representative. The carrier agreed, and we proceeded with an empty chair.
Trial was condensed but was still too long. Picking a jury took an entire day. Issues arose during trial that made one-hour lunches turn into two-hour long delays for the jury. Sometimes more.
Several issues concerned us early on. Our Muscogee County jury pool was comprised mostly of minorities, and given many of the legitimate frustrations and conversations taking place with regard to law enforcement, we were wary that some jurors may see prejudice and injustice when they looked at our young, white, rural sheriff’s deputy and S.W.A.T. officer. So, we addressed the issue head on in voir dire. Although a few jurors acknowledged some bias, most committed that it was not an issue.
Our opening was strong. It not only laid out the facts and testimony, but it exposed the defenses for what they were: baseless. We tried to move quickly in our case in chief. We put up our evidence in a day-and-a-half, including the investigating State Trooper, three doctors, one of Mike’s co-workers, two family members, a life care planner, on-scene witnesses, and lastly, Michael Wells.
Mr. Wells’ testimony was moving and compelling despite his slip of the tongue that referenced “insurance,” which thankfully did not cause a mistrial. After quickly regrouping, this man’s-man broke down and became vulnerable for the jury. He explained how he just wanted to work and be normal. How his injuries prevented him from being the dad he wanted to be. Or the friend he wanted to be. Or the husband. The jury empathized with him. They bonded.
The defense’s cross-examinations of our witnesses was tedious, especially of our client. They spent what felt like several hours with Mike going through his injuries in an attempt to show that he caused the injuries himself. The Defendant had spent a lot of money on a tri-fold board that was over 10 feet long, showing a timeline of Mr. Wells’ treatment relative to events they contended were the real cause of his injuries – such as physical fitness job-related training, a minor collision, and tying his shoes. Most of these events occurred well after the wreck, after what appeared to be a successful initial back surgery, and little to no pain. As in most cases, these presented a challenge, but Mike’s doctors were strong and consistently related all of his injuries and treatment to the crash.
Importantly, the investigating State Patrol Officer remembered the crash and was eager to testify. Although he listed numerous contributing factors to the crash in his report, he found that the “major contributing factor” was Mr. Jernigan’s choice to quickly slow to a near-stop in the middle of a busy highway so he could make an illegal U-turn. Although the defense raised concerns about the “major” language in the pre-trial conference, Judge McBride reserved ruling for trial so he could make a decision in the context of the Trooper’s testimony. Interestingly, upon tendering the report into evidence, the defense asserted no objection. It was not until Drew questioned the Trooper about his conclusion that Mr. Jernigan’s actions were the “major contributing factor” that the defense lodged any sort of objection which was overruled in light of clear case law and statutory language allowing it.
The Defendant put up only a handful of witnesses including a scene witness, who agreed with our theory that the collision would have never happened if the Defendant had not stopped in the highway.
And then, the unforced error. As the last witness in the case, the insurance lawyers called the truck driver that rear-ended Mike to the stand, presumably so they could check the box about some evidence they wanted to get in. We couldn’t believe it. He was a regular, endearing blue-collar guy. We met him in the hallway that morning and he was terrified. He had no idea why the defense had subpoenaed him for trial. We asked him about his story, not just of the collision but of his life. It was moving and compelling. We knew exactly what we were going to do. The insurance lawyers put him on the stand and proceeded to point out all the reasons why they thought he should be entirely, or at least almost entirely, responsible for the collision. They did so in lawyer speak, so that the witness barely understood what was happening.
Our cross began softly, to humanize him, but quickly shifted to the defense lawyer’s tactics. The insurance lawyers had been talking to him for weeks, prodding him to come to trial, without ever telling him that they intended to lay the blame at his feet. He looked like a sheep that had just been led to slaughter as we explained exactly what the defense was doing to him. He looked the jury right in their eyes and explained that there was nothing he could have done to avoid the wreck. He tried but just could not stop. His eyes welled deeply with tears, but he held them back. No one could have ever expected that Mr. Jernigan would stop in the middle of the highway. In less than 15 minutes of cross the jury came to see him as a real person, and the defense’s liability case collapsed.
After that, it was all downhill. We felt good about our closings – Drew handled liability in initial close and Chase hammered home damages and the jurors’ responsibility to dole out justice for what had been taken from Mike by the defendant. The defense spent a lot of time walking through their tri-fold timeline. They did not give a number and did not have a compelling story. But they maintained that the striking driver was 90 percent, if not 100 percent, at fault, contradicting the testimony of their own witnesses. We asked for $7,000,000 to $10,000,000.
After deliberating for about five hours over two days, the jury found in favor of our client. Their verdict was for $2,775,000. They apportioned 10 percent to the truck driver, 90 percent to the “Estate,” and – of course – zero percent to our client. The verdict was healing. The jury had all but rejected the defense’s liability arguments, and mostly rejected their argument that our client was responsible for his own injuries. All the years of the defense blaming our client and everyone else were washed away with the jury’s confirmation that the insurance company was wrong. Mike was vindicated. He and his family were moved to tears. As his lawyers, we were humbled. Even with the offset for the previous settlement and for the workers’ compensation benefits paid, we shot far past the UM limits, which will allow our client to collect every dollar of the policy. It was a great day.
Of course, the carrier refused to accept the result. Even with a clean trial, they had to find something, anything to blame for the result they swore would never happen. The Court’s rulings were fair and consistent with the law. They scoured the transcript for whatever they could find, and landed on challenging the admissibility of the State Trooper’s testimony about the wreck; particularly his assessment that the Defendant’s actions were the “major contributing factor” to the collision. They contend this went beyond the bounds of permissible investigating officer testimony, invaded the province of the jury, and should never have been allowed. For good measure, they threw in the classic “the verdict did not fit the evidence” argument as well in their request for a new trial.
Obviously, given the defense’s stipulation to the Trooper’s report containing that very language and the abundant appellate case law approving similar testimony, we believe their Motion for New Trial will be denied. Although a victory on the Motion will almost certainly mean an appeal, we remain confident that we will be victorious no matter what path we are forced to travel.
As is always the story with all of our cases in the trial bar, the insurance company will stop at nothing to avoid paying what they owe. The good news for our client is that we won’t stop until they do.
ABOUT THE AUTHORS
Chase Swanson is a partner at Jones & Swanson, LLC in Marietta, Georgia where he is also a lifelong resident. Throughout his entire career, Chase has focused solely on representing and helping individuals and families who were negligently injured or killed. He has been recognized as a Super Lawyers Rising Star since 2017, and his firm was recognized as the Best of Cobb for 2020. Chase is also an active member of his community and local bar where he is currently serving as President-elect of the Cobb County Bar Association.
Drew Ashby is the owner of The Ashby Firm. He litigates catastrophic injury cases all across Georgia and the Southeast. He specializes in product liability, premises liability, industrial incidents, and chemical exposures.