Second February 2012 Trial Win!
I won another trial this month, which wrapped up a little over a week ago. Briefly, my client was injured in a low-speed collision in Redmond. Because he is a tough guy, he didn’t see a doctor right away. In fact, he waited nearly a month to see a doctor. However, shortly after he was seen, it was determined that he needed a left shoulder surgery. Anyway, here is a brief post-trial report:
FACTS: The collision occurred at the intersection of SW 6th Street and SW Evergreen Avenue in Redmond, Oregon. My client was a passenger in his father’s Honda Accord at the time. My client was turned to his left, watching police arrest an individual, and had his left arm extended behind his father’s seat while doing so. the defendant failed to stop behind the Honda, rear-ending the car at a low speed (less than ten miles per hour). Property damage was minimal – no airbag deployment, the Honda was not pushed forward appreciably, and defendant didn’t need to get his SUV fixed.
My client felt uninjured at the scene (not unusual with soft tissue injuries). He testified that he felt symptoms in his neck, mid back and left shoulder later that day, with pain setting in the following day. He did not treat for his injuries for approximately 30 days following the collision. He ultimately required left shoulder surgery to treat his primary injury – a symptomatic activation of prior left AC joint arthritis. After his surgery, he was unable to work his at-injury job for a number of months. As a result, he sought reimbursement for his lost wages. He is also left with permanent physical impairment secondary to his injuries, though nothing too significant, for which he sought reimbursement for related impairment of his earning capacity. However, he testified that his current condition really does not cause pain, nor interfere much with his daily activities. He also brought to the table a longstanding low back issue.
Defendant admitted liability, but denied causation and damages.
JUDGE: Recently retired Judge Stephen N. Tiktin (from Bend) presided over the trial. He was excellent, as usual.
DEFENSE COUNSEL: Barry Goehler, head of Nationwide Insurance’s Oregon in-house firm. He did a fine job, and was very easy to work with.
EXPERTS: My client’s surgeon, Blake Nonweiler, MD, testified for us. He opined that the collision caused the AC joint symptoms, but that there was no evidence of labral injury upon his examinations. Defendant had Dr. Brenneke of Clackamas testify. Dr. Brenneke admitted quite a bit of stuff that was 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 immense symptoms if the AC joint was, in fact, injured.
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, apparently ignoring the fact that my client was turned to the left at the time of the collision. 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. Given this testimony, all opinions turned on the credibility of my client in giving an accurate history as to having no symptoms prior to the collision, but feeling pain shortly after the collision. Because of the 30 day gap in treatment, as well as the fact that he had to keep working to keep his job, the defense argued that he must not have been injured, and must be lying.
RESULT: Trial took three days. Our jury was great – very smart and paid a lot of attention to the evidence. The jury awarded all medical expenses ($21,000), all lost wages ($8,480), and $10,000 noneconomic damages (this small amount is not surprising since my client could point to very little differences in his physical activity attributed to his shoulder, as well as essentially no long term pain). We were also able to recover a significant portion of the cost of trial. The settlement offer going to trial was only $5,000. While not a big case, it was a good win.