R. Gregory Lewis (Charlotte, NC) (Automobile Liability) obtained a favorable result in Mecklenburg County in the case of Nelda Daniels, Administrator of the Estate of Max Daniels vs. Susan Flow.
Plaintiff filed suit in August 2018 alleging her decedent husband (then 69 years old) had been injured in a car accident on August 18, 2015 wherein Defendant turned left into the path of the approaching Plaintiff resulting in a 2nd collision between decedent’s vehicle and a 3rd party vehicle. Liability was accepted. Property damage was substantial, with both parties being injured, and Defendant transported by EMS to the local ER. The decedent was treated for an elbow laceration at the scene, denied EMS transport, and was seen later that day at an Urgent Care for elbow and neck pain. He was seen 6 days later by his PCP complaining of left elbow and bilateral knee pain, as well as post-concussion syndrome. He was referred to an orthopedic surgeon by his attorney at 9 days post-MVA. A subsequent MRI revealed a torn medial meniscus and chondromalacia. One week later he was seen by the ortho to discuss the knee MRI findings, and also complaining of the left elbow and shoulder. A subsequent shoulder MRI revealed a SLAP tear with mild acromioclavicular and glenohumeral degenerative changes. At 2.5 months post-MVA, he had a right knee arthroscopic partial medial meniscectomy and chondroplasty, and 17 days later had a right shoulder arthroscopic subacromial decompression, distal clavicle resection, and rotator cuff debridement. Following surgery, Plaintiff underwent physical therapy and was discharged as to the knee at 5 months post-MVA, and 2 months post-surgery. Plaintiff was discharged at 6.5 month post-MVA (3.5 months post-surgery) at which time the testifying orthopedic surgeon stated he had made “good to excellent recovery, had no limitations, an expectation that residual pain from the surgery would improve, and that he need only return if needed.” Approximately 27 months later, the decedent died at age 72 from COPD, peripheral vascular disease, chronic obstructive pulmonary disease, end stage ischemic cardiomyopathy, and acute renal failure. Plaintiff Administrator/wife testified that he had substantial limitations following his injuries, never fully recovered, couldn’t engage in and enjoy previous activities of daily living, became depressed, and “never was right again until he died.” There was no evidence nor contention that the MVA contributed to his death. The treating orthopedic surgeon testified that “in worker’s compensation, he would get a 2% rating to the knee, and 10% to the shoulder,” but “I don’t want to be held accountable for that.”
The decedent’s past medical history was negative for knee joint and shoulder joint complaints. His past history was positive for COPD, and it was documented that Plaintiff had refused for years the instruction to quit smoking. Plaintiff had uncontrolled diabetes (refused medication and diet adjustment), uncontrolled hypertension (refused medication and weight reduction), two prior heart attacks, and a quintuple coronary bypass. Plaintiff also suffered from ongoing bilateral leg and buttock claudication (deep muscle pain). The medical record from his cardiologist 1 month prior to the MVA documented by history that he was no longer walking for exercise, not golfing extensively, unable to walk uphill due to claudication, as well as weight gain, anxiety and depression (which was chronic and uncontrolled per prior records). The medical record from his PCP 2 weeks prior to the MVA documented that he was unable to golf due to pain, numbness and weakness in the legs. This directly conflicted with the Administrator wife’s testimony that he had not suffered any of these subjective symptoms prior to the MVA. Plaintiff’s testimony also conflicted regarding post-MVA activities, in that she testified that he could no longer do the things he loved, such as taking care of the car and yard work, in that the PT records noted he had waxed the car and had done yard work without complications.
Jury demand: $175k. Plaintiff’s counsel attempted “reptile theory” tactics that were diffused with proprietary methods of response. Plaintiff dismissed the claim for medical expenses (approximately $12,000) and did not offer evidence of same, only claiming pain and suffering and permanent injury through the date of decedent’s death. NC does allow a “survivor’s action,” preserving the right to bring a bodily injury claim, including pain and suffering and permanent injury, by the personal representative.
Verdict: $18k, following 2.5 days in trial and 2.5 hours deliberation. The verdict with addition of pre-judgment interest and costs was not in excess of the Offer of Judgment served early in the litigation, and therefore Defendant’s post-Offer costs will be taxed to Plaintiff.