12/19/2018
The Blame Game: Catastrophic Auto Accidents Edition

The Blame Game: Catastrophic Auto Accidents Edition

Predicting verdicts in cases of true tragedy

By Teresa M. Beck , Benjamin Cobb

This edition of The Blame Game involves automobile accident cases tried by juries to verdict in which one or more of the plaintiffs suffered catastrophic injuries. We provide all of the facts available from jury verdict reports, then look to our resident expert Bert Dizon, lead resolution manager at Gallagher Bassett, for some input from the industry’s side. Due to the nature of the accidents, be warned that there are disturbing and graphic descriptions included. Let’s get started.

Case #1: Auto Versus Pedestrian

Our first case comes from California, and was tried in San Bernardino County in southern California. The plaintiff in this case was a six-year-old girl, who was 11 years old at the time of trial. The six-year-old crossed a busy street mid-block after the adult supervising her could not restrain her. She was injured when she was hit by a passenger vehicle driven by one of the defendants, who was allegedly speeding. Other defendants included the company responsible for maintaining the roadway, the county where the accident occurred, the city where the accident occurred, the elementary school where the plaintiff was headed, the school district, a private company that had a contract with the school district to provide transportation services, and a bus driver for the school system.

The plaintiff alleged that it was typical for parents and students to walk to the school bus by crossing in the middle of the block, which was a violation of the bus company’s policies and procedures. A disciplinary system was in place for such violations. Students who violated the rules received a verbal and then a written warning. Discipline could eventually involve losing school bus privileges. Bus drivers, however, never notified the school district of students crossing mid-block. The bus driver and bus company argued that the student and her parents were comparatively at fault for the plaintiff darting into the street.

The plaintiff was ejected 70 feet into the air before she fell to the ground and went into cardiac arrest. She sustained a traumatic brain injury—specifically, an acute subdural hematoma—and cervical fractures at the C1 and C2 levels. She also sustained a displaced fracture of the left, proximal humerus; a spiral fracture of the left, distal humerus with a medial displacement of a distal fracture fragment; a kidney laceration; fractures of the bilateral superior and right, inferior pubic rami at the pelvis; and a fracture of the left femur. She was transported to a hospital where she remained for over five months. On the date of the accident, she underwent a craniectomy with evacuation of a subdural hematoma. Seven days later, she underwent surgical fusions of the occiput to C1 and of C1 to C2. During the procedure, she had a plate screwed into the bone of the skull, secured with rods and screws. She also underwent an endoscopy of the upper gastrointestinal system and had a feeding tube placed. She had a tracheostomy placed and a shunt was inserted to drain fluid from the brain into the stomach. She also underwent shunt revisions. In addition, she underwent surgery to treat her femur fracture.

The plaintiff’s counsel contended that future surgeries would include a cranial flap replacement surgery, scoliosis surgery, gastrointestinal surgery, another shunt revision surgery, heel cord lengthening, and hip abduction surgeries. Plaintiff’s treating pediatric neurosurgeon testified about life expectancy. It was undisputed that the minor will need a 24-hour-a-day licensed, vocational nurse to care for her for the rest of her life. She is confined to a wheelchair. Notably, it appears the plaintiff did not submit past medical expenses to the jury, ostensibly on the basis that the numbers were low and may have anchored the jury to a lower total verdict.

Evaluation and Verdict: “Pedestrian accidents always have the tendency to be tragic, especially when they involve children,” says Dizon. “Even so, contributory negligence attributed to the minor would be a consideration when determining the final value of the case. The laundry list of injuries combined with the confinement to a wheelchair and the need for 24-hour care going forward will definitely drive up the value of this case. There are also several potential contributing defendants, which makes the case even more interesting but does not necessarily drive up the value. A negotiated settlement with a structured settlement broker would have probably benefited all of the defendants. But seeing as the matter went to trial and a verdict was rendered, the range of the award would be expected to be in the range of $7.5 million to $9 million. The plaintiff’s evidence of future medical expenses, which is not provided in the facts, could have a huge impact on the outcome.”

After a five-week trial, the jury deliberated for two days before reaching a verdict. The jury awarded a total of $36.2 million, broken down as follows:

• $19 million personal injury: future medical costs

• $1.2 million personal injury: future lost earnings capability

• $5 million personal injury: past pain and suffering

• $11 million personal injury: future pain and suffering

The driver of the passenger car was deemed not liable. Fifty percent fault was placed on the school bus company, 30 percent on the bus driver, and 20 percent on the young girl’s parent. In California, a plaintiff can recover the full amount of future medical costs and future lost earnings, as the defendants are jointly and severally liable for economic damages. As such, the plaintiff recovered a total of $32.0 million. As Dizon guessed, future medical expenses were a major factor in the verdict.

Case #2: Catastrophic Collision

The next case comes from Florida in Daytona Beach. The 39-year-old plaintiff, who was a teacher, was sitting at a red light in her passenger vehicle with her four minor sons (including a toddler) when her car was struck from behind by a speeding driver. The impact forced her car upright on its front bumper and into the rear of a van in front of the vehicle. Plaintiffs claimed the opposing driver was driving 70 mph in a 55-mph zone.

The plaintiff sustained multiple injuries, including a concussion, brain injury, hip fracture, multiple rib fractures, lacerated spleen, and blunt force trauma to the abdomen and chest. Her past medical expenses were $17,000. The toddler suffered severe injuries, including to his brain and cervical spine, a fractured pelvis, and multiple fractures to his left leg. He underwent numerous surgical procedures, including insertion of a tracheostomy tube and a cervical spine fusion. He is now a paraplegic with no bladder or bowel control. His past medical expenses were stipulated at $217,000.

The other boys—ages 12, 10, and 8—were placed in an ambulance and transported to a hospital. The 12-year-old suffered head and neck injuries, a broken jaw, and bilateral fractures to both legs. He had multiple surgeries and was temporarily intubated due to an unstable spine. His agreed-to past medical expenses were $45,000. The 10-year-old suffered multiple severe injuries, including a lacerated liver and spleen, degloving of his right lower torso, pelvic fractures, a dislocated right hip, and a sciatic nerve injury. He underwent multiple surgical procedures, including skin grafting, exploratory laparotomy, colostomy, coccygectomy (removal of the tailbone), and insertion of a traction pin though the leg and bone. He will require several more surgeries. His past medical expenses were stipulated at $215,000.

The 8-year-old suffered a laceration to his left leg, subsequent infection and abscess, an altered gait, lower back pain, and bruising from airbags. His agreed-to past medical expenses were approximately $7,000.

The defense agreed with most of the future care required for the boys but argued the future cost of such treatment was inflated by the improper use of interest rates by the plaintiffs’ economic expert. Defense counsel suggested that the jury award significant but much lower amounts of non-economic damages than those proposed by the plaintiffs. The plaintiffs’ counsel requested that the jury award a total of approximately $180 million for the collective plaintiffs, including $1 million per year of life expectancy for the toddler and the 10-year-old. Throughout the trial, defense counsel emphasized optimism and the resiliency of the human spirit despite admitted catastrophic injuries suffered by the plaintiffs.

Evaluation and Verdict: “The Florida venue is quite possibly one of the worst there is, and the details and the damages of this case are an insurance professional’s nightmare,” says Dizon. “The jury award on this matter will be significant, especially for the toddler and the other minors. While the plaintiffs’ request of $180 million was definitely excessive, the nature of juries in Florida make it possible for an award in that range. Being hopeful of a reasonable jury that isn’t utterly sympathetic to a teacher with four children, I estimate a total verdict in the $45 million to $50 million range.”

After a six-day trial, the jury deliberated for two days, and awarded nearly $52 million as follows:

• $28.2 million for the toddler

• $1 million for the eight-year-old

• $11.7 million for the 10-year-old

• $2 million for the 12-year-old

• $7.6 million for the mother

• $1.3 million for the spouse

Case #3: Head-On Accident

The final case is from Georgia’s Fulton County. In this case, the plaintiff, a 29-year-old female factory worker, was driving her minivan when an oncoming SUV driven by the defendant lost control, crossed the center line, and crashed into the minivan. The minivan’s driver side window was shattered, and plaintiff’s left hand struck the jeep as it scraped down the side of her minivan.

Plaintiff sued the SUV driver and the mechanic’s shop that replaced the steering linkage on the defendant’s vehicle eight days prior to the crash, as well the owner of the shop, but she did not fault these defendants at trial. The plaintiff alleged that the opposing driver negligently lost control of his vehicle and crossed the center line, thereby causing the collision. According to the automotive shop, the defendant failed to properly maintain his SUV and inspect the linkage at the required mileage intervals after its installation. Although the opposing driver reportedly tried to downplay the extent of his off-roading, he admitted in interrogatory responses that he had been off-roading in his SUV only hours before his loss of steering. The automotive shop’s expert opined that the steering linkage was connected at the time of the impact and was broken apart by the collision. The expert explained that this meant the separation of the steering linkage did not cause the collision, but rather the collision caused the separation of the steering linkage.

The defendant alleged that the loss of steering caused him to drive into oncoming traffic. His expert testified that the steering linkage that had been replaced by the automotive shop came apart prior to the collision and caused a loss of steering, resulting in the accident.

The automotive shop also maintained that the defendant driver should not have been on the road since his SUV was significantly lifted, as the vehicle’s body parts and suspension were modified for off-road driving. By making the SUV more compatible for off-roading, the defendant compromised the SUV’s on-road capabilities, thereby causing him to lose control and strike the minivan.

The plaintiff suffered serious injuries to her hand and arm, including a degloving injury to her left, dominant hand with significant loss of skin, muscles, nerves, tendons, and facia. In addition, she suffered severe open fractures of multiple bones in her hand and closed fractures of the ulna and radius of the left arm. She underwent open reduction internal fixation surgery to repair the forearm fracture, which included installing plates and screws. Her middle left finger was amputated. A four-stage reconstruction surgery to her hand included a skin graft from her upper thigh. Her hand is now painful, scarred, and disfigured. Although she has some use of her thumb, the limited range of motion in her remaining three fingers substantially impaired her use of the arm. She also suffers from post-traumatic stress disorder. Past medical expenses total $391,800.

The trauma surgeon who did the initial surgery and removed one of the plates years later estimated that the plaintiff suffered at least a 50 percent impairment of her left upper extremity, which translates to a 27 percent impairment of the whole person. Her orthopedic surgeon testified that the injury was the most memorable hand injury of his 25-year career. Left with a “helper” hand, the plaintiff lost full function and has been reduced to being able to only pinch her thumb against her index finger. Her plastic surgeon testified that even though she still has use of her thumb, due to the limited range of motion in the remaining three fingers, her hand impairment results in a 90 percent impairment of her left upper extremity, which translates to a 54 percent impairment of the whole person. This surgeon stated that the injury was a 10 out of 10 in severity. No further treatment was scheduled.

The plaintiff’s psychologist testified that, as the trial approached, the plaintiff’s anxiety and nightmares of the collision increased significantly, prompting her to seek a psychological evaluation. Her psychologist stated that while working through her current issues in a clinical setting would be helpful, focusing directly on the event and injuries in a non-clinical environment, as well as learning new details about the collision and her injuries, could be psychologically harmful to her. As a result, the plaintiff did not even attend her trial. She is expected to undergo counseling indefinitely.

The plaintiff is a single mother of three young children and speaks little English. She had no choice but to return to work at a food processing plant to support her young family. Her duties include placing labels on products, which she is able to do with her right hand while minimally relying on her left hand. She missed about three months of work. The plaintiff did not claim future medical expenses or lost earnings from her job. As feared in the first case, this may have been a strategic decision because these amounts were low and there was a concern that the jury may have anchored to the lower numbers.

Evaluation and Verdict: “While the injury is severe based on the amputation and the significant impairment as noted by the doctors, the injury coupled with the allegation of PSTD gives significant potential value to this claim,” says Dizon. “As a single mother of three with a blue-collar occupation, one would imagine that the sympathy of the jury would be significant. It is surprising that the plaintiff would not have attended her own trial and that her attorney made no claim for loss of earnings or future medical expenses. This can go both ways, but my estimation of the potential jury verdict on this case is in the $2.5 million to $3.5 million range.”

The jury found the opposing driver was 100 percent at fault and signed a verdict for general damages of $30 million and medical expenses of $392,000. Litigation expenses combined with prejudgment interest brought the total to $30.7 million.

Lessons Learned

We learn something from every case. All of these cases demonstrate the significant exposure of trying catastrophic injury auto cases to verdict, and reinforce the notion that settlement efforts can prevent excessive verdicts. Many times, plaintiffs’ counsel makes going to trial easy for us by what seem to be unreasonable demands. These cases are reminders about how value can sometimes be greater than what even the most skilled professionals estimate.



Teresa M. Beck is a partner with CLM Member Firm Lincoln Gustafson & Cercos. She can be reached at (619) 233-1150, tbeck@lgclawoffice.com, lgclawoffice.com.

Benjamin Cobb is an associate at Buchanan Ingersoll & Rooney. He can be reached at benjamin.cobb@bipc.com.

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