The personal injury game :-) Wanna Play?

[Flower]

[font color="green"

]Hey--how about picking this case apart. I will give you facts that are real but only those that are disclosed to both sides so as not to violate any confidentiality. I won't tell you whether I represent the plaintiff or the defendant and the names are NOT designed to hint at the real identity. You can be like the "shadow jury" if you wanna play

 

Read the facts and tell me what you think about:

1. Liability (whose fault is it) and a percentage can be assigned to both parties. i.e., 70% to A and 30% to B, so long as all percentages add up to 100%

 

2. Damages -- How much the Plaintiff gets, if anything. Consider his economic damage (our of pocket--hard dollar loss) and his non-economic--pain and suffering and emotional distress.

 

I'll try to really abbreviate the facts.

 

In this case: Plaintiff 50 yo breadwinner with wife and 19 yo daughter who still lives at home.The three of the were shopping at the Big Q store and having checked out, were putting their shopping cart in the cart corral near the front doors and as Plaintiff was lifting his bag of goods from the cart to leave the store, a long line of (20-30) carts is being pushed in the door with a kid on the front who is supposed to be watching where they are going and a kid at the other end driving a small cart-tractor--they come thru the door and bang right into plaintiff's right leg (sciatic nerve area) who crumples to the ground in pain.

 

Big Q has the entire scene video taped and their security officer testifies that he made a copy of the video and sent it to home office back east and kept the original in the evidence locker in his office at the store. At the time of his deposition, to which the video was subpoenaed, he testified that they had lost both of the videos. The kid at the back on the tractor said he couldn't see and was relying on the kid up front, who testified he was looking back at the kid on the tractor :+ They were both new in using the tractor and had not taken the training video they were suppossed to take on the operation and safety of the tractor and of bring carts in.

 

Plaintiff has suffered a severe sciatic nerve damage and his right leg is shriveling up and he is experiencing a sympathetic nerve reaction on the left leg which is also starting to waste away. He is a truck driver making $50K a year and would have worked until 65 years but for this (50Kx15=$750,000.)--the doctors predicted he would be unable to continue working past last December, but he is trying hard to continue supporting family and now down to about 2 or 3 days on a good week, but very doubtful will be able to do it much longer. He will work a day, then the muscle in the leg spasms so bad he is off a day or two; then the cycle repeats. At night, laying in bed, his leg simply flops for hours in spasm and pain. His medical bills are in the area of $25,000. Since there is nothing they can do for him. The best doc cannot offer him a solution. He could have the nerve severed, but then he would be unable to walk

 

The law says he is entitled to be compensated for economic loss reasonably to have been earned and for pain and suffering.

 

So whatcha think?

[Guest]

>So whatcha think?

>

Ah, let me guess. You're the personal injury lawyer (your presentation seems quite one-sided). Well, in general, I'm not very sympathetic to these personal injury cases. For one, your plaintiff client was probably in a better position to be paying attention to that huge line of carts heading towards him than the two poor shmoes at the either end. In my 15 years as a practicing physician, seeing people who've gone through all kinds of industrial injuries, car wrecks, and so forth (with all kinds of terrible-looking X-rays and MRI's), I've never someone's leg "shrivel up" from sciatic nerve damage (let alone from being hit by a shopping cart). In particular, I don't see how a leg could atrophy from "a sympathetic nerve reaction" (I presume you're referring to the nebulous Complex Regional Pain Syndrome, previously referred to as Reflex Sympathetic Dystrophy). I certainly don't believe your client's leg is "flopping for hours" at night in bed, especially if he's a truck driver. If he really has involuntary leg movements, he has no business having any driver's license, let alone a commercial driver's license. If a patient told me he had involuntary leg movements, I would advise him to stop driving and notify the Motor Vehicles Department, lest I be involved as a defendant myself in another personal injury suit.

As a juror, I would also be very loathe to rule in the plaintiff's favor without hearing evidence as to whether or not he's ever been involved in prior lawsuits, had prior problems with his back, or has a history of substance abuse. (Whenever I've changed counties and have been called for jury duty, I tell the judge my opinion of the legal system in this country, and I seem to have been placed on a "Let's never call this guy again!" list--I've only been called once in each of the two respective counties I've lived in). I also hope that the Big Q has been videotaping your client...

That being said, you certainly have a GREAT thing going on the spoliation of evidence problem (I hope I used the correct legal term). Especially since there were two copies of the security video, I think almost any juror (myself included) would be fairly infuriated at the videos' disappearance. My inclination would be to assign 25% guilt to the Big Q, with a jaded view on any economic or pain & suffering damages, but maybe award $10 million for punitive damages as an example due to the spoilation of evidence.... }(

[Guest fukamarine]

Given the facts you have mentioned - I can't see why the blame should not be born 100% by the defendant. The plaintiff has done nothing wrong that I can detect. The fact that both tapes have been "lost" is not believable and it appears that the kids in charge of the operation were woefully untrained.

 

I wouldn't even attempt to estimate the amount of damages due to the plaintiff but it would seem logical that he should get a minimum of lost wages - 750K - and possibly more as it is unreasonable to think that his annual wage would not increase over the 15 years left for him to work as inflation should be factored into the equasion. There could also be pension benefits that would not continue to accrue.

 

His medical expenses should be covered and possibly additional estimated expenses in the future.

 

As to compensation for pain & suffering and the loss of enjoyment of a lifestyle that will be severly curtailed - who knows how much that should be worth. My guess would be in the millions - somewhere around five would not be too much.

 

If some stupid bitch can spill hot coffee all over her cunt and sucessfully sue MacDonalds (don't remember how much she received) then this guy surely has a much stronger case.

 

Don't neglect to let us know the outcome!

 

fukamarine

[Guest]

>If some stupid bitch can spill hot coffee all over her cunt

>and sucessfully sue MacDonalds (don't remember how much she

>received) then this guy surely has a much stronger case.

>

 

I guess the McDonald's coffee case is the quintessential example of why jurors should have no involvement in civil cases. There is no way to give jurors the legal knowledge and experience necessary to make fair (let alone faintly intelligent) decisions in civil cases. After all, we don't let juries determine defendants' sentences in criminal cases. The only reason juries determine damages in civil cases comes from the windfall profits trial lawyers make, and the resulting campaign money that comes from it. We all pay to stuff these personal injury lawyers' pockets.

If I were the judge in the McDonald's coffee case, I would grant a motion for summary judgment for the defendant, force the plaintiff to pay all of the defendant's legal costs (as well as court costs), and put the plaintiff in the county jail for 90 days for making a mockery of the court system, and attempting to extort the plaintiff. Nevertheless, I believe you have a gold mine in this case due to the spoliation of the evidence. Obviously the defendant needs to get the unequivocal message that destroying the evidence cannot be tolerated. I can't imagine the case settling for less than millions of dollars. You'll be able to afford the greatest escorts every night--or have your own live-in escort!! :D

[ManHoleNC]

Having seen many cases of similar injuries I am skeptical on damages. Liability seems quite clear assuming the facts stand up to a more balanced accounting.

 

My experience has been that a case like this, with minimal medical bills, objective reports and a diagnosis of such questionable etiology, the question remains how to value the case.

 

Here is what most likely will happen. The case will settle and the nerve damange will heal itself, the complaints will subside and the man will continue to work if so motivated and live happily ever after. The healing power of a settlement amazes me to this day. I say save the big dollars for those that are truly and objectively injured. There is too much economic incentive for this man's case for my comfort in granting him a huge settlement. I would pay his medical and present value his earnings and call it a day.

[+ Lucky]

Very interesting thread, Flower. I loved Unicorn's response as well as manhole's. (I am giggling here.)

So I think the plaintiff had some duty to watch out for himself and the question would be to what degree the accident was avoidable. My guess: 50%. Jury verdict: 0.

Next case.

[Flower]

[font color ="green"

] Man--you're quick and to the point--as always :7

 

Actually, I appreciate your's and everyone's feedback and hope for more. Everyone correctly assumed I'm the plaintiff's atty., however, the facts weren't as one-sided as it appears. The Big Q has very little by way of defense, although you and a couple of the others have placed a higher duty on the Plaintiff than I feel is there, still it is valuable to get your perspective.

 

Some more facts, not to try and change anyone's mind, but for information. The carts are coming through the front door about 20' where the plaintiff is standing -- he is facing the cart corral with his back to the door and there is NO warning they are coming thru the door. There is a slight uphill as the carts approach the door from the outside so the tractor is sped up a bit to take the upgrade, however it is electric and very quiet. The plaintiff is in an area where he would be expected to be and is not in anyway expecting carts to be coming in. The advance cart boy is there for the purpose of watching ahead and using the walkie talkie to tell the driver to slow or stop if there are people in the way--this didn't happen--he was looking back at the driver for some unexplainable reason. He also had a remote-control kill switch he could have hit and the tractor would have stopped, if he was watching as he was trained to do

 

I guess I'm surprised at anyone placing any blame on the plaintiff, although there are circumstances I'd agree, such as if he was walking in the parking lot and the carts were coming and open and obvious--but here he is completely surprised by them--they are not in the door as he approaches the cart carrel.

 

Anyway, not to try and change any minds--just FYI

 

Thanks for reading and participating.

[Flower]

[font color="blue"

] >your plaintiff client was probably in a better position to be

>paying attention to that huge line of carts heading towards

>him than the two poor shmoes at the either end.

[font color="green"

] Well in most circumstances I'd agree, but take a look at the more detail I provided Lucky below. HOWEVER, the manager of Big Q testified that he saw it happen from a distance and it happened too quick for him to warn and basically it happened just as my client testified. Let me know if that makes any difference.

 

[font color="blue"

] >I've never someone's leg "shrivel up" from sciatic nerve>damage (let alone from being hit by a shopping cart). In

>particular, I don't see how a leg could atrophy from "a

>sympathetic nerve reaction" (I presume you're referring to the

>nebulous Complex Regional Pain Syndrome, previously referred

>to as Reflex Sympathetic Dystrophy).

[font color="green"

]

I am and it is. Big Q has sent the Plaintiff to their own chosen Neurologist at a major medical center and he agrees with plaintiff's 2 treating neurolotists, so what can I say? Shrivel of course was maybe simplistic and slightly inflamnatory for Atrophy, as you pointed out, and the extent of the other leg is yet unclear--it is showing a similar, progressive weakness however.

 

[font color="blue"

] I certainly don't

>believe your client's leg is "flopping for hours" at night in

>bed, especially if he's a truck driver.

 

[font color="green"

] "Flops" may be inarticulate--it quivers and tremors and often jumps involuntarily after he has been using it for driving several hours during the day--we have it recorded on video and it is not the type of thing that could be a voluntary movement. He is able to drive less and less due to the leg getting weak after driving a full day.

[font color="blue"

]>involuntary leg movements, he has no business having any

>driver's license, let alone a commercial driver's license. If

>a patient told me he had involuntary leg movements, I would

>advise him to stop driving and notify the Motor Vehicles

>Department, lest I be involved as a defendant myself in

>another personal injury suit.

[font color="green"

] This is a good point. Actually his case would be better monetarily if he stopped working, but he is genuine and very proud and is fighting like hell to be the bread winner, but gradually working less and less.

[font color="blue"

]

>As a juror, I would also be very loathe to rule in the

>plaintiff's favor without hearing evidence as to whether or

>not he's ever been involved in prior lawsuits, had prior

>problems with his back, or has a history of substance abuse.

[font color="green"

]

This is another good point and I agree. In this case however, Big Q has done thourogh background investigation and plaintiff has NO PRIOR accidents, prior back or nerve problems, substance abuse or prior law suits. He's lived in the same community for an extended time so that information would be easy to locate if it existed. As professional trucker, who contracts with the US government, he has to have annual physicals, and can have NO accidents or criminal record or substance abuse whatsoever.

[font color="blue"

]

>That being said, you certainly have a GREAT thing going

>on the spoliation of evidence problem (I hope I used the

>correct legal term).

[font color="green"

]

You use the term correctly and in many jurisdictions it is a separate cause of action based on the theory akin to the interferce with a business relationship. However california has done away with it as a separate theory, and juries are now just told that if Big Q did intentionally destroy the tapes, they may presume the tapes would have been adverse evidence.

 

From my stand point, the tapes should be helpful since we wanted to show the impact, the positioning plus the timeing and the positions of the parties,

 

Thaks for your comments and taking time--if this changes anything, let me know :+

[dick_nyc]

Seems like the people posting on this thread should share in the winnings if any, don't you think?? They helped you prepare the case.

[+ Lucky]

I still think that your client should have seen the train coming, unless his back was to it. They don't move too quietly either.

[+ Lucky]

BTW- I sent you a private message. have you checked the flower pot?

[+ nycman]

My opinion....

 

This case is complete and utter bullshit.

 

The symptoms and the diagnosis are both bullshit.

 

The guy got knocked over by an ELECTRIC cart for christ's sake!

 

Do what the rest of America would do....

 

get the fuck up,

 

dust yourself the fuck off,

 

and get on with the rest of your fucking life!

 

It's a complete trail lawyer scam from start to finish.

 

Hey...you ASKED!

 

Now can I ask...what percentage of the plaintiff's settlement do you get?

 

I love America!

[Flower]

[font color="green"

] I guess I didn't make that clear--HIS BACK WAS TO IT, but the noise factor is a good point.

 

Got the PM and responded:7

[Flower]

[font color="green"

] Interesting attitude and since I asked for opinions, expected the full gamete, even some hostile like this.

 

However, consider this:

1. Any doctor will tell you that you cannot fake nerve damage. It's evidenced by atrophy of the special areas the nerve goes to and depending on the nerve, other neurological symptoms that cannot be faked.

 

The sciatic nerve is a sensory and motor nerve originating in the sacral plexus and running through the pelvis and upper leg and passes about halfway down the thigh where it divides into the common peroneal and tibial nerves.

 

There are surgeries where this nerve has accidentally been cut and that results in partial or total drop foot, so it's a pretty serious deal. Babies have been given shots which mistakenly hit the sciatic nerve and has resulted in paralysis of the effected leg.

 

So, I'm not sure why you feel "It's a complete trail lawyer scam from start to finish," since the Big Q doctor also agrees with the injury, but you obviously are entitled to your opinion, and you are right--I asked for it. I'd be interested in your background and why so cynical, I often encounter jurors of the same frame of mind and they usually have had some connection with the judicial system where they have felt burned, or else they work in the insurance industry.

 

Don't get me wrong--there are a lot of Bull shit cases out there, but believe it or not, they usually get weeded out before they go to trial.

 

But I do appreciate your opinion nonetheless.

[Flower]

[font color="green"

] You bet!!:7

[Guest]

The additional information you gave was actually helpful, and would increase my sympathy for the plaintiff. You should definitely enter into evidence the facts regarding no history of civil suits, accidents, or substance abuse, and of course, those issues which would have prevented your client from noticing the oncoming carts. (I wonder if, as a matter of law, the defendant could have entered contrary evidence if the reverse were true?). One issue that still irks me is the fact that he's still driving despite this supposedly severe neurological injury.

As a licensed California physician, I have to fill these commercial drivers' license applications all the time, and neurological conditions affecting the operation of a motor vehicle definitely preclude renewing a commercial driver's license. Of course, I see assholes all the time in parking lots saunter out of their car with the disabled placard hanging, and I guess you can pay some desparate physician to sign anything.

I still think that the major issue will be the spoliation of the evidence. No will believe that two separate copies of the security videos which were kept in two separate places were both lost. I usually sympathize with defendants in civil cases, but this issue would really piss me off. I don't know if California law allows for punitive damages when evidence is spoliated, but if it does, there's a good chance the jury's going to hand you a jackpot, unless you're practicing in Plumas County or somewhere else where your jurors will be a bunch of hicks.

If you want my legal advice, counselor, I wouldn't settle for less than millions. If you have to go to trial, I would offer a high-low agreement with a low of no less than $1 million.

[Flower]

[font color="green"

] LOL--thanks doc--I really appreciate yor input. As a matter of fact I once in a while get to Plumas County and the jurys there are truely living in the past--but it is refreshing once in a while. I save Plumas for cases I'm defending :7

 

The driving issue has me concerned also, and based on what you said, I'll discuss that issue with his doctor.

 

Spoliation of evidence used to be a cause of action in California, but a few years ago our Supreme Court struck it down, since it was judicially created by a more progressive court years before. Now, we can only comment on it and hope the jury listens to the jusges instructions about assuming the evidence if it hadn't been lost would hurt Big Q. But I agree--the fact that they "lost" both tapes is just too convenient and will piss a jury off big time.

 

Your thoughts on substance abuse, past history etc., are very helpful and I've already made a some notes, as well as your dollar evaluation--you've been very helpful :*

 

Having had several parapalegic clients, I'm particularly sensitive to the handicapped parking issue and if I ever see that happen without a placard, I yell at the person from the car and embarrass the hell outta him }(

[+ nycman]

Thank you for taking my comments with a grain of salt.

 

I don't feel I'm "cynical"...perhaps skeptical is a better word?

 

I disagree that because the Big Q doctor agrees with the injury that it's obviously an open and shut case. Sounds like the Big Q lawyers foolishly picked a shitty witness. Two wrongs don't make a right.

 

Even if there is "severe nerve damage"...which I still seriously doubt...the injury doesn't seem to be having a significant impact on your patient. He's still working and driving...although I'm sure with proper "counsel" that will soon stop.

 

I think the loss of the tapes certainly helps your case. Not only because it casts doubt on Big Q, but also because the jury will never see how completely ridiculous the minor impact was that caused this mysterious "severe nerve injury". It's a trial lawyers wet dream.

 

To answer your question, I have never been burned by the judicial system and I certainly have no connection with the insurance industry.

 

I notice you dodged the question I asked regarding your percentage of the settlement...don't worry....your silence pretty much answers the question.

 

>Don't get me wrong--there are a lot of Bull shit cases out

>there, but believe it or not, they usually get weeded out

>before they go to trial.

 

True....and intelligent juries at trial weed even more out.

 

Nonetheless, overall our judicial system still pretty much sucks.

 

>But I do appreciate your opinion nonetheless.

 

And I don't doubt that you truly believe in this case.

 

We are entitled to disagree.

 

Hence....I love America!

[Rick Munroe]

>You'll be able to afford the greatest

>escorts every night--or have your own live-in escort!!

 

I'd like to volunteer for that position (I'm Flower's biggest fan). :*

[Guest]

I just had a patient today who reminded me of your client (even if he isn't like your client). It's this alcoholic guy who came to my office on crutches crying in pain stating he fell over the railing in his balcony onto his car "because the landlord left a ledge on the carpet." This guy's body was totally messed up before this all started due to recurrent alcohol-related injuries, including a car accident in which his BAC was 0.23%. I said "Give me a break! How much alcohol had you been drinking this time?" to which he responded "Only three or four beers, doc, honest!" Your tax dollars at work! He's actually collecting social security and Medicare because of complications from his alcohol-related injuries! :+

Well, I'm sure you'll provide the jury with evidence as to why your client couldn't see or hear the cart trolly. The ones I see at the local Target having a flashing strobe, and make beeping sounds.

[Flower]

:7 :* :9 }( ;-)

[Flower]

>I notice you dodged the question I asked regarding your

>percentage of the settlement...don't worry....your silence

>pretty much answers the question.

[font color="green"

]

Really wasn't trying to dodge your question--there was so much in your post to respond to, I overlooked it--and of course it really has nothing to do with the merits of the case, however, I'd be happy to answer--it's fairly common knowledge anyway.

 

Most personal injury attorneys advance ALL costs on a case like this. They pay for experts, reconstruction, testing of the tractor, deposition expense, court reporter fees, travel expense to depose the doctors and experts, jury fees, witness fees, investigation fees, legal research (computer time) fees, and of course, DO NOT CHARGE ANY HOURLY RATE.

 

In exchange IF they prevail, then all of the advanced costs are paid and then the client takes 2/3 and the atty takes 1/3. IF THE ATTORNEY LOSES THE CASE, THEN HE EATS ALL OF THE COSTS AND THE TIME--HE GETS NADA! In a case like this the costs can amount to $10-20K easily, and his time expended, which could have been billed out to other clients at $150-$200/hr (where I live) usually amounts to way more than the costs. So the attorney is basically putting his money where his mouth is, which is a good practice for anyone:+

 

I have never understood the insurance industry's as well as the uninitiated's criticism of the contingency fee system, since it is the best mechanism of weeding out bad or unmeritorious case and more importantly, allows EVERYONE access to the courthouse--not just those that can pay the hourly rate of an attorney. The large defendants that I take on pay their Los Angeles and San Francisco attorneys anywhere from $200-500/hour (win or lose) to defend their wrongdoing, then they stand back and criticise an attorney who is willing to sink or swim with the case, the client, and his abilities.

 

Once you sign on for a case, you pretty much have to see it through to the end and can't dump it just cause the other side won't pay you money. In the more conservative areas where I practice, you can go thru an entire trial and a jury find liability but bring in an award far lower than you evaluated, sometime reducing your actual fee to fractions of what you would have made by the hour, but I figure that is the penalty for bad evaluation.

 

I make no appologies for the contingency fee, and really don't understand your remarks about it as if it was something to hide or treating it as if it had something to do with the merits of the case. I can tell you quite honestly, I have never had a client that was unhappy to pay me my fee after a trial--so I'm puzzeled by some of the criticism I have seen about "the outrageous attorneys fees" in personal injury cases--it never seems to come from the client!

 

I hope I have answered your questions--if I have left out anything else, it was unintentional. We have a great legal system here. Not perfect but the best there is. It is one that protects the common man as well as the rich, and I think that is what pisses some people off. There is no where else in the world where you or I could bring in GM to answer to a local jury as to why the put in the "saddlebag" gas tanks that created bombs in some of their pickups if impacted, or Ford Mortor's engineer to explain the memo he wrote to the President of Ford outlining the costs of a recall versus the courts costs and wrongful death judgments projected from their fault gas tank design of the Pinto and the Mustang. Viva la Jury! ....and I too love america:+

[Flower]

Well, first, my client is a NON drinker believe it or not. He was at Big Q with his daughter and wife on a Sunday afternoon, stone sober, and the tractor was OUTSIDE--not inside--with 20-30 carts coming throught the door ahead of it. Even at impact, the tractor was outside being pushed inside BLINDLY since the kid at the front wasn't looking and my client had his back turned to it.

 

I'm really puzzeled at you seeing any anology here to your drunken patient on welfare. My client has worked all of his life, never been in trouble, never sued anyone, never been in an accident--so where is the similarity?

 

I've been at the front end of the Big Q and with the loudspeaker calling the manager for price checks, people getting and dropping off carts, the automatic doors opening and closing everytime someone comes in or out or walks in front of it and 20 cash registers ringing away -- it's more like Grand Central station than the reading room at the local library.

 

However, your sketicism is very worthwhile to see, since it has pointed out what someone else may be thinking on the jury and that's why I floated the qustion.

[Flower]

[font color="green"

]ahhhh@#$%&*%$% Damn!!!-- I forgot the GREEN!!

 

Is that Bad luck?

[Rick Munroe]

>[font color="green"

>]ahhhh@#$%&*%$% Damn!!!-- I forgot the GREEN!!

>

>Is that Bad luck? [/font]

 

Only on St. Patrick's Day.