Steven Sundook and Phillip Fairman (Ft. Myers, FL) (Automobile Liability) obtained a Defense Verdict in Lee County Circuit Court in a three-day trial of an auto negligence case. Plaintiff’s counsel requested the jury award $171,000.00 in medical bills and $4,200,000.00 million in pain and suffering. The jury awarded $35,000.00 in medical bills, found the Plaintiff to be 40% at fault for the accident, and also found that she had no permanent injury. After a PIP setoff and comparative negligence, net verdict was only $11,000.00. The defense previously served a proposal for settlement for $110,000.00 and will be seeking an attorney fee award. A “high low” agreement was offered but the Plaintiff refused to go below “$250K/$1 million.” There was also a prior nonbinding arbitration award of $225,000.00.
The case arose out of a March 3, 2018 accident in which the 75-year-old defendant driver was leaving a restaurant with his wife and sister-in-law. Traffic to his right was in gridlock. He waited until a driver in the gridlock traffic stopped to let him through to turn left. He waited, looking to his right for oncoming headlights to make a safe left turn.
Seeing no oncoming headlights, he slowly turned left and then accelerated. He admitted his vision was partially obstructed as he looked through the windows of parked cars to his right before turning. His wife testified she also saw no oncoming headlights as they turned. After 5-6 seconds he felt a push from behind, realized his car had been hit, pulled over to the side of the road and called 911.
Plaintiff, a 42-year-old single mom, was coming back from the fair with an ex-boyfriend and her adult disabled child. She claimed the defendant’s vehicle suddenly partially pulled into her lane and stopped. The first thing she saw was his brake lights. She braked and turned to the right to try to avoid the collision but struck the right rear side of the defendant vehicle with her right front quarter panel. Her ex-boyfriend claimed the defense vehicle was stopped at angle, and not fully in the lane at impact.
Plaintiff only complained of some chest pain from her seatbelt and refused medical treatment from EMS at the scene. The next day she went to urgent care complaining of a myriad of areas of pain and discomfort, including to her right shoulder. She followed up with a chiropractor, neurologist and eventually returned to an orthopedic surgeon who had treated her in the past.
She had two prior car accidents in 2006 and 2010. She had right shoulder arthroscopic surgery in 2006 after the first accident and again in 2010 after the second accident. She had a third right shoulder arthroscopic surgery following our 2018 accident.
She went a year and a half until July 2020 without treating with the orthopedic surgeon, Dr. Kagan. She had an injury at home in January 2020 when she felt pain in her shoulder while reaching behind her to close a door. When Dr. Kagan saw her in the summer of 2020, his report was mostly a cut and paste of his March 2019 MMI report. He referred her to physical therapy and never mentioned anything about discussing future surgery with the Plaintiff, much less recommending it. Plaintiff’s counsel claimed the 2020 “door” injury related back to our March 2018 accident.
In November 2020 Plaintiff’s lawyer produced a “confirming” letter he wrote to Dr. Kagan in which he asked Dr Kagan whether Plaintiff would need a future surgery. Dr Kagan signed a form attached to the letter outlining the future surgery he recommended to her lawyer. When Dr. Kagan’s video testimony for trial was done in May 2021, he admitted it was unusual to not examine a patient, get an MRI or have any discussion with a patient before recommending a future surgery. Plaintiff’s counsel also had him testify that Plaintiff might need a second future surgery if the first was not successful, which would be open surgery using cadaver bone, which another doctor would have to perform. He admitted the need for the second future surgery was “sheer speculation”.
Our CME doctor testified that Plaintiff had general laxity in her shoulder, that it was a chronic condition not related to our 2018 accident, and that he did not find her 2018 surgery to be related to it, or believe she needed any surgery in the future.
In closing argument Plaintiff’s counsel argued that our opening statement, in which we said Defendant was not a cause of the accident, was proven to be false, that Defendant “darted out” in front of the Plaintiff cutting her off. It was further argued that she had lost the use of her right dominant arm, and this was almost like an arm amputation case. The total award requested from the jury was just under $4,400,000.00.
We argued that our client was at most only partially at fault for the accident after he had a “lapse in judgment” turning onto the roadway, but that he was accelerating away, and not stopped partially as Plaintiff claimed, and that she rear-ended his vehicle.
The jury found Plaintiff 40% at fault and found the 2018 surgery not related to the 2018 accident, found no permanent injury, and awarded $0 in pain and suffering damages. It also awarded $35,000.00 in total medical bills, resulting in a $11,000.00 net verdict after applying the PIP reduction.