Issues At Trial In Impairment of Earning Capacity Claim

This post is part two in a three-part trial report.  The judge in our case was the recently retired Honorable Stephen N. Tiktin from Bend. He was excellent, as usual.

The Defense Counsel was Barry Goehler, head of Nationwide Insurance’s in-house firm. He did a fine job and was very easy to work with.

The main issues in this case were as follows:

  1. My client was charged with felony methamphetamine possession and hindering prosecution in 2007. The judgment of conviction was entered only ten days prior to this collision.
  2. He did not come off as the most credible person on the stand, having changed portions of his testimony from his deposition.
  3. Of the four “before and after” witnesses my client could provide, one had only seen him once a year since 2002, two had significant felony convictions as well as crime of dishonesty convictions, and one didn’t remember much. I went with the one who didn’t remember much, and he showed up in court unshaven and in dirty blue jeans.
  4. My client is 30 years old and still lives at home with his father. The father, who is 71, did a decent job testifying but lacked a good memory.
  5. My client had a prior shoulder dislocation involving the same shoulder when he was a kid.
  6. The pain and symptoms my client was reporting was more consistent with a labral tear than exacerbation of prior AC joint arthritis (and he had an extensive amount of that). Labral tears come from shoulder dislocations, which did not happen in this collision.
  7. My client waited a full 31 days before seeking treatment, working full time while waiting. Thus, the onset of symptoms boiled down to his credibility, which could appear questionable.
  8. My client continued to work as a line cook for nearly four months after the collision, without help or alteration of his job duties. He later quit his job because he didn’t get along with management.

Experts testified on both sides.

We called Blake Nonweiler, MD, my client’s surgeon. He opined that the collision caused the AC joint symptoms but that there was no evidence of labral injury upon his examinations.  The Defense had Dr. Steven Brenneke of Clackamas testify. Dr. Brenneke admitted many facts that were helpful to me, including the fact that he had never seen the MRI that claimed to show a Hills-Sachs lesion (which can only come from a dislocation), but gave the opinion that the symptoms were more consistent with a labral tear which must have been present prior to the collision based on the lesion.  Our doctor testified that the MRI did not confirm such a lesion, and showed no signs of labral tearing.  Dr. Brenneke also testified that the mechanism of injury was wrong for an AC joint injury, and that there should have been immediate and intense symptoms if the AC joint was, in fact, injured.

The Defendant then hired DME doctor Holm Neumann just ten days prior to trial. Dr. Neumann, interestingly, agreed with Dr. Nonwiler regarding the lack of a Hills-Sachs lesion. However, he also opined that the mechanism of injury was all wrong for an AC joint injury. He also testified that there should have been immediate and significant symptoms if it had been injured. I pointed out also that he was not provided with all of the records, including any of the chiropractic records. He then added that he was not given all of the pre-surgery imaging records, either! Both defense doctors agreed, however, that there was no evidence presented to them confirming or even mentioning any left shoulder pain or symptoms prior to the injury, that all evidence (by client history) was that the left shoulder was symptomatic within days of the collision, and that the surgery was appropriate for symptomatic AC joint arthritis. Again, given this testimony, all opinions turned on the credibility of my client in giving his history.

My next post will detail the results of the trial.

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