Pain and Suffering: The Dangers of Opposing a Bio-mechanical Expert in a Personal Injury Trial

 

Losing hurts. Every time, losing hurts. We, as plaintiffs’ trial attorneys, do what we do for a number of reasons. Money is obviously one of them. But what people forget about the civil justice system, is the word justice. People, who have been injured because of someone else’s negligence, need justice. True justice would be hitting the rewind button and turning back time to before the incident that caused the injury. To return them to their previous lives. But we can’t do this. So, we are left with imperfect justice. Money Justice. But money justice still speaks volumes to the community, and to the person or people who were injured.

Money justice lets someone who has been hurt know, we understand your suffering, and we appreciate your suffering. It lets them know we value your life and what you have lost and how things will never be the same. Justice is sometimes a tiny pinhole of light in otherwise complete darkness, or a bright, hot burning sun that lights every inch. Either way, justice is what keeps us pushing forward.

Money justice also lets the negligent parties know that the community will not tolerate their actions. The community will not stand for actions that endanger its brothers and sisters.

My jury this week returned a defense verdict. It was devastating. It was devastating because I believe in justice. It was devastating because I love my client and his family. It was devastating because the verdict was wrong. It was devastating because I could have been better, and if I was better, we could have won.

The case comes out of a collision on the 405 freeway at dusk in June of 2012. My client was rear ended and shoved into the car in front of him. My client was 39 years old at the time of the crash and a DMV supervisor. He was and is married to his high school sweetheart.

The jury asked after the trial why we didn’t call a biomechanical expert like the defense had hired and presented to the jury. The truth is that at that level of impact, no fair and competent expert can say whether the forces caused or didn’t cause the injury. But, the defense expert, someone who testifies for the defense 90% of the time, opined that there was a 0% chance this impact caused this injury. It is garbage. He is not a medical doctor. He uses outdated studies, with general results, and tries to apply them to the specific and unique facts of our case.

I need to get better at handling this junk science. I need to get better at handling this garbage. I trusted that a jury would understand the potential for abuse that an expert like this poses. One juror, after the trial, perfectly articulated the problems with this expert. She said to me, anyone who is paid enough money can manipulate numbers to say whatever they want. Exactly. I thought it was enough that my client never had pain before the crash. My client was in constant pain from the time of the crash, until he had spinal fusion surgery 2 years later. He exhausted all of the more conservative treatments. He is honest. He is hardworking. And the jury said they liked him and his family. But they got hung up on the biomechanical expert and on the substantial factor jury instruction. I believe we had the wrong 12 (or at least the wrong 9) people to hear this case.

I will save a separate blog post to discuss the substantial factor instruction but I think my main failings in this case revolved around my voir dire and the selection of jurors. For now, I just pray for my client and his wife and their 18 month old son that they still see the light of justice, even if it is only a pinhole at the moment. We will file a motion for new trial and JNOV. There is still hope. The jury’s decision did not conform to the evidence.

Can I Sue If I Was Hurt Or Injured Volunteering?

Scharf v. Calvary Chapel-Traumatic Brain Injury Settlement Won by Case Barnett Law Corporation

​Verdict: Church Found 49% Responsible

Settlement: 3.8 Million Dollars-

Churches must acknowledge the pastor/congregant dynamic and ensure that the desires of their followers to serve the church, doesn’t overcome safety precautions. CACI 401 discusses the basic standard of care in negligence cases. The last line instructs the jury, “You must decide how a reasonably careful person would have acted in defendant’s situation.” The key part of the instruction is in defendant’s situation.

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January 25, 2005, Dennis Scharf, a low voltage electrician had volunteered to run low voltage electrical for his church as part of a church remodel. On Sunday, Dennis arrived at church to be told by the head pastor that there was still work left to be completed, and the work must be completed that night. Mr. Scharf, feeling the pressure to please his church, his pastor and his God, spent the evening completing the job. Dennis ended up falling from a wall of approximately 12 feet, landing on his head suffering a serious traumatic brain injury. After clawing his way back from he edge of death, Dennis Scharf still suffered from serious cognitive and emotional deficits.

After more than eight years of litigation Case Barnett Law took the reigns of this case in 2013. We decided to change the theory of the case to better reflect the true shortcomings of the church and its lead pastor. We argued:

1) The reasonable person standard of CACI 401 means a reasonable pastor needs to acknowledge and account for his influence in the Church.

2) A reasonable pastor needs to ensure that his congregants are not unnecessarily exposing themselves to harm for the betterment of the Church.

3) A volunteer is an employee and should be protected by Cal-Osha standards.

4) A church assumes the responsibility for the safety of a worksite, when they choose not to hire licensed individuals.

The third issue would have meant that any Cal-Osha violations by the Church would have made them strictly liable for any injuries suffered by Dennis Scharf because of those violations. Ultimately, the court found that Dennis Scharf, as a volunteer was not a statutory employee and therefor not entitled to the protections of Cal-Osha. This issue is novel, as there are no cases directly on point. But, theoretically, if you have an individual, performing work that requires a license, and that individual does not have a license, then that individual becomes an employee pursuant to labor code section 2750.5. But, the court found that a volunteer, who is unpaid, does not get those protections (while someone paid, who is unlicensed, would get the protections).

Ultimately, the jury found that the general negligence of the church and pastor under theories 1, 2 and 4. The church had received a quote to get the work done for $35,000. The Church choose to With this decision, the Church assumed responsibility for the safe construction of the Church.

The defense in the case moved to bifurcate liability and damages. At first, we opposed the motion under the general theory that plaintiffs want the liability and damages issue to buttress each other. After further consideration, we withdrew our opposition to the motion, and decided that a jury would be more likely to put a greater liability on the church, if the amount the plaintiff was claiming in recover was not before the jury.

After 2 weeks of trial, a Riverside jury returned a liability verdict against the Church finding Dennis Scharf 51% responsible, and the Church and the Pastor 49% responsible.

The insurance company had rejected multiple offers to settle this case at or below the policy limits of $1million. Facing a potential substantial verdict, the insurance company came to the table willing to negotiate.

Rather than spend several more years in litigation regarding this case, and then trying to collect against the insurance company in a bad faith claim, plaintiffs agreed to settle all claims for $3.8 million. This settlement was nothing short of a miracle given that the case had been thrown out on appeal and the highest defense offer was $200,000.

If you have been injured in an accident contact Case Barnett Law for a free consultation.

Can I Sue For A Slip and Fall In A Public Place?

Dr. Beltran vs. Homeowner’s Association-Traumatic Brain Injury Settlement Won by Case Barnett Law

CorporationSettlement: 2.5 Million Dollars

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It’s not often that an attorney settles a trip and fall case for $2 million, but in 2015, Case Barnett Law did. Dr. RB lived in a posh Orange County neighborhood paying over $700 a month in monthly homeowner’s association dues. A water meter box was continually broken in front of his home. Dr. RB complained to his homeowner’s association about the broken water meter box on multiple occasions.

After a day at work, Dr. RB returned in the evening and parked his car in the driveway. He exited the car to get his mail. His second step went in to the broken water meter cover causing serious injuries including a traumatic brain injury and severed tendons in his hand.

The defendants repeatedly passed responsibility amongst each other and pointed the finger back at Dr. RB for not fixing it himself, and for knowing about it, but failing to avoid it. The liability issues were complicated because of the covenants, codes and restrictions (the CC&R’s), the governing documents for the homeowner’s association and the HOA’s attempts to shift responsibility to the homeowners. CC&R’s give HOA’s the ability to make their own laws and distribute responsibilities. A close inspection of these governing documents is essential to suing any homeowner’s association.

We were able to settle four of five defendants for $2 million before trial, leaving one defendant who refused to accept any responsibility. This defendant, insured by Liberty Mutual, insisted its client had zero fault. A jury of 12 Orange County Citizens disagreed and found the last defendant 32% responsible. The case currently waits for the damages phase to begin. Case Barnett Law will be seeking damages of more than $10 million. Insurance companies never learn.

If you have been injured in an accident contact Case Barnett Law for a free consultation.