trial report

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.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Impairment of Earning Capacity Claim in Oregon Car Accident Injury Case

This trial report concerns a collision that 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, which was stopped at the intersection specified above. Our client was looking out the car window to his left, watching an ongoing police arrest and had his left arm extended behind his father’s seat. The Defendant in the case failed to stop behind the Honda, rear-ending the car at a low speed, less than ten miles per hour. The property damage was minimal; there was no airbag deployment, the Honda was not pushed forward appreciably, and the Defendant didn’t even get his SUV fixed.

Our client denied injury at the scene. 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 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, for which he seeks 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 has a pre-existing low back issue and is obese.

The Defendant admitted liability, but denied causation and damages.

Going into trial, our prayer was for $21,000 for past medical expenses; $8,480  for lost wages; $200,000 for impaired earning capacity; and $250,000 for noneconomic damages.

My next post will detail the main issues in this case.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Trial Report – Bend DUII Accident, Part III

The DUII-auto accident trial detailed in the last two posts took four full days.

When they jury returned, they awarded my client the following:

  • $8,350.10 for all past medical expenses.
  • No future medicals. This was the most surprising part of the award decision, since they related all priors up to last November.
  • No lost wages or impaired earning capacity. This was not really a surprise, given the economy and fact that my client still worked 100+ hours per week.
  • $10,000 non-economic damages. This, frankly, was also not surprising since my client spends all of his time at work.
  • $25,000 punitive damages.

The offer going into trial was $25,000, which my client received in punitive damages alone. It was a successful trial and another happy client.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Trial Report – Bend DUII Accident, Part II

The judge in the Bend DUII-auto accident case was the Honorable Kip Leonard from Eugene. He was an excellent judge – and funny to boot.

The Defense Attorney was Brian Driscoll of Smith Freed Eberhard. He did a fine job and was easy to work with.

The main issues in this case were as follows:

  1. We could not get into evidence the fact that the defendant pleaded no contest to the DUII, nor the subsequent diversion. However, I was able to get into evidence that he had pleaded guilty to reckless driving involving alcohol in 1996.
  2. The judge would not allow the arresting deputy to testify that he thought that Defendant was legally intoxicated, nor that he arrested him for DUII. I got around this, however, by asking whether he would arrest someone he pulled over who was exhibiting the exact same symptoms for DUII. He replied “without a doubt.” While this was an excellent answer for us, because of the refused field sobriety test or breathalyzer test, I had less than ideal evidence of intoxication.
  3. The assisting deputy testified that he did not observe any signs of intoxication at the scene. I pointed out that his interaction with the defendant was extremely limited, a statement with which he agreed readily.
  4. The bartender testified that he did not feel that the defendant was endangering himself or others when leaving the bar – i.e., was not too drunk to drive. I pointed out the fact that it is illegal to over serve and let the jury come to its own conclusion as to why his testimony differed from his statement to the investigating deputy.
  5. Our client never missed work. He continued to work 100+ hours a week. Literally.
  6. I had to deal with a two-year gap in treatment, plus the fact that our client refused to have arthroscopic surgery as recommended years ago because he thought that his doctor “was a joke.”
  7. Our client testified that he was on the phone with 911 when hit. However, the 911 tape has him stating that “this guy almost hit ____ (static).” Then, 30 seconds later he says that he had been struck with the car. The Defendant maintained that our client said “me” at the static point, where I pointed out that it may have been “car” as you can hear the “r” when the static ended.
  8. Our client testified that he had scratches that were bleeding at the scene and that the deputy pointed that out to him. However, the deputy testified that he had looked for physical injury, that it was important for him to do so, and that he could find none.
  9. Our client had denied that he was injured to the 911 operator.

Experts testified on both sides. We had retired orthopedic surgeon Dr. Tom Carlsen testify based on a records review only. Dr. Carlsen testified that our client’s injuries are permanent, not likely to improve on their own, and will necessitate further treatment, including surgery.

The Defense had Dr. John Ballard, an orthopedic surgeon from Salem, testify. He conditionally opined that our client ‘s accident-related injuries resolved by March 2009, though his only basis for that opinion is that our client had stopped frequent medical treatment in March 2009 – that two-year delay of treatment I mentioned earlier. Dr. Ballard further testified that our client’s current condition could be related to cystic degeneration of the patellar tendon, a symptom which was picked up on a second MRI three years post-accident. On this point, Dr. Carlsen testified that the cystic degeneration was likely a result of trauma, even though the initial MRI didn’t show trauma. Of course, Dr. Ballard disagreed.

Our client, his tax consultant, and his bookkeeper testified as to the downward trend in his business and the extra employees he hired. The overall downward trend of the construction economy in central Oregon certainly didn’t help us on these points. The Defense had forensic CPA Gregson Parker testify. He did well, but everyone in the courtroom was confused by his explanation of his complicated charts. He did admit the points I cross examined him on, however.

My next post will detail the results of the trial.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile

Trial Report – Bend DUII Accident, Part I

On April 11, 2008, at about 8:45 p.m., our client was leaving a bar in Bend when he saw the Defendant engaged in a physical altercation with another patron. Our client watched the Defendant – who has admitted to drinking alcohol before this incident – strike the patron, pushing him into our client before the patron fell to the floor. The Defendant then rushed out of the bar into the parking lot. Our client also left the restaurant, where he met the Defendant in the parking lot. The Defendant began yelling obscenities and approached our client, threatening to harm him. This led to a heated verbal exchange. When the Defendant got in his minivan, our client warned him that he would call the authorities to make a DUII report if the Defendant attempted to drive. Undeterred, the Defendant got into his van and began to pull out of his parking space, so our client pulled out his phone to dial 911.

When our client walked to the front of the Defendant’s van to get the license plate number to report the DUII to the 911 operator, the Defendant began to drive in short bursts toward him, apparently attempting to scare him away. On the Defendant’s final lurch forward, his vehicle struck our client’s right knee, pinning his leg between the van and a Toyota Prius. The Defendant then tore out of the parking lot at high speed. Our client immediately called Deschutes County 911 and reported the hit-and-run to the dispatcher. The Defendant denied all of this, of course, and maintained that he backed out of the spot slowly, carefully, and without incident.

Deschutes County Sheriff’s deputies responded to the scene and, after taking witness statements, tracked the Defendant down at his home in Eagle Crest. After a brief investigation, the Defendant was arrested and taken to jail. Notably, the Defendant refused both a field sobriety test, as well as a breathalyzer test at the sheriff’s office. The Defendant was subsequently charged by the Deschutes County District Attorney’s Office with DUII, Recklessly Endangering Another, and Refusal to Take a Breath Test. On July 27, 2009, the Defendant pleaded no contest to the DUII charge and entered into a diversion program which resulted in a dismissal of the charges against him.

As a result of this incident, our client sustained right knee trauma and was diagnosed with a plica injury. He underwent conservative treatment, including steroid, cortisone and joint-replacement fluid injections as well as physical therapy, before resigning himself to living with knee pain. Nearly four years after this incident, the pain in his knee causes him to walk in a way anyone witnessing it could only describe as a “hobble.”

Because of his injuries, our client, who is self-employed at his concrete business, was completely unable to work at times. Even when able to work, he had to reduce the amount of work he does and hire help to finish the jobs he continues to take – jobs he was once able to do on his own. He sustained lost wages, primarily for replacement help hired during the first several months following the accident. Further, because he cannot perform work in the manner he once could, he claimed an impairment of his earning capacity.

The Defendant denied liability, causation, and damages.

Going into trial, our prayer was for $8,350.10 for past medical expenses; $10,000 for future medical expenses; $12,000+ for lost wages; $50,000 for impaired earning capacity; and $75,000 for noneconomic damages. We also claimed $50,000 in punitive damages due to the intoxication element.

My next post will give the details of the trial.

Lawyer Timothy Williams | Top Attorney Personal Injury | Tim Williams Attorney Profile