January 2018 Trial Report
– Case Description
The at-fault driver was exiting a private driveway onto Lamar which is two lanes in either direction. A car was turning left out of that same driveway and she was parked to the right of it. For whatever reason, she turned right into the first lane and then attempted to make a u-turn. My client was going 45 MPH and had no time to stop. It was a hard impact with good front end damage and deployment of the passanger side airbag.
The client went to ADC that day for shoulder and neck pain, got a prescription, and then left for his planned trip to Las Vegas for a week (which was obviously ruined by his pain). In addition, he started to fail pain in his lower back. After he came back, he hired me and I sent him to a chiropractor on a LOP though he had health insurance. He treated for several weeks and his pain went from a self-reported 5 to a 1 but wouldn’t go away, and the chiropractor sent him out for an MRI.
The MRI showed an annular fissure and disc derangement.
He treated a couple more times and then saw a pain management doctor on a LOP after being referred by the chiropractor.
The pain management doctor ended up giving him an ESI shortly before Christmas.
Just after the new year, his sister was in an accident (his fiancé was also in the car). He attempted to pull a fender away from a tire and his LBP got worse for a few days. He got another ESI a few weeks later. He stopped treatment completely seven months after the accident.
He continued to experience a low-level of back pain.
In December 2016, the client was in another accident which was a multi-car collision but he was the last one injured. He was injured and treated for only a month though he testified it was a month or two.
The trial was 2.3 years after the accident with no treatment related to the first accident after the first seven months.
Total medical bills were just over $28,000.
Client lost five days of work worth approximately $2,400.
The at-fault driver’s insurance was with Progressive. They tendered their policy limit of $30,000.
My client’s under-insured coverage was with Progressive. He carried a $100,000 policy and $5,000 of PIP benefits.
We made an initial demand of $60,000 before we asked for the PIP benefits. My client wanted $10,000 to $15,000 in his pocket after paying attorneys’ fees and the doctors. I felt like that meant we would have to get a total of $15,000 more than the $30,000 collected.
The Progressive adjuster said she felt he had been fully compensated and that the ongoing pain in his back was due to aging. The client was 40 and the MRI showed No disc degeneration. She offered $2,500 but said it could go up.
I then claimed the $5,000 in PIP benefits. The adjuster was not pleased because she said there would be no room to negotiate. I told her she would need to get to five figures to get this settled. She said that wouldn’t happen, so we filed suit.
Both sides waived mediation.
First witness was the adjuster. She was on for five minutes. Progressive didn’t dispute liability, at-fault driver 100% at fault, didn’t dispute the treatment was necessary, didn’t dispute the treatment costs were reasonable. Didn’t dispute the 5 days of missed work and $2,400 of lost wages. She also agreed no history of back pain (this was a defense and requested in the jury instructions) and no evidence he didn’t follow his doctors’ orders (requested jury instruction on failure to mitigate).
My client's fiance was next. I met her and spoke to her the first time for about 30 minutes the Friday before the trial. No prep with her other than to tell her to be ready to talk about health before and after and what the effects were. I told her, don’t just tell us his back hurt, tell stories about incidences she’s observed and the effects. She did very well. She explained the pain came and went – he had better days and worse days.
My client was the last witness. Went through one treatment record before the wreck showing no back pain. Went through select records, including the pull of the fender. Went through MRI (critical record) and discharge record from pain doctor.
Past medicals: $28,288.02 (full)
Future medicals: $64,000
Past pain: $15,000 (about what was asked)
Future pain: $37,500 (about half of what was asked)
Past impairment: $12,500 (just over half of what was asked)
Future impairment: $40,000 (just over half of what was asked)
Lost wages: $2,400