By: MICHAEL PETERSON, KEENAN LAW FIRM
This month’s Reptile© Superstar is Luke Baker. Luke received his bachelor’s degree from Appalachian State University, and his Juris Doctorate from Campbell University’s Norman Adrian Wiggins School of Law. Luke met his wife, Laura Baker, in law school and not too long after graduation; they moved to Concord, NC, and got married. After graduation, Luke worked with a local law firm for about a year, until he decided to open his own. He opened The Baker Law Firm in 2009 and was joined by Laura later that year. One year later, Luke and Laura were joined by their current partner Amber Billick, resulting in the firm changing to Baker Billick, P.A. Luke’s practice focuses on MVC and premises liability cases.
Outside the law profession, Luke has served on the board of the Community Free Clinic, an organization that seeks to provide free healthcare to those who do not have health insurance. He has also held membership in the Concord Rotary Club, Cabarrus Chamber of Commerce, and other local organizations. Luke and his firm are avid supporters of The Cabarrus Partnership for Children. The mission of the organization is to ensure that services in health, early education and family outreach are available and accessible to children. Luke and his wife, Laura, have two children, ages five and two.
Introduction to Reptile©:
Luke Baker bought the “2009 Reptile© Manual” in 2011. According to Luke, the Reptile© was overflowing with quality information. Every new chapter was a new discovery. His curiosity led him to the Reptile© Introduction seminar and the Reptile© Masters seminar in Atlanta, GA. Luke finds it satisfying that he could begin his Reptile© journey as a puppy lawyer. From this vantage point, his experience provided him with a greater opportunity to trust the Reptile©, without having to unlearn any old techniques, practices, and habits. Luke’s favorite Reptile© tool is spreading the tentacles of danger.
Facts of the Case:
“Christine,” a 21-year-old college student, decided to earn extra money over the summer by working at a concession stand at the Charlotte Motor Speedway selling margaritas. Christine’s concession stand closed before the race was over. So after it closed, she decided to head home before the increase in traffic. As she was heading towards the parking lot, a 2007 Dodge Ram 4×4 struck her from behind with its front right fender. The Dodge Ram grazed her on the left side of her lower back and elbow. The passenger side mirror hit Christine on back of the head and across the top of her left shoulder. At the hospital, Christine underwent a standard medical work up. The report confirmed the crash did not break her bones. The hospital decided to release her. Outside of little aches and bruises, the hospital expected her to recover from her injuries.
Christine was a life-long musician and a music major in piano performance at the time of the crash. Within a few days after the crash, Christine was concerned because her left arm was not performing normally, making it hard for her to play. She had pain, numbness, burning, tingling, and loss of function in her left arm, in addition to neck pain and upper back pain. Her treating physicians sent her for physical therapy and occupational therapy, which was of limited help. The physicians ordered multiple MRI’s of her spine, wrist, elbow, and shoulder, along with EMG/NCS studies of her left upper extremity. All of her test came back negative. Christine’s records were replete with references such as “Pain of uncertain etiology” and “No objective findings to substantiate the subjective complaints of pain.” She also had a medical history of recurrent back pain/soreness from the hours she spent at the piano practicing. The lack of any diagnostic findings combined with the pre-existing history of back and neck pain made the task of proving Christine’s case to a jury difficult to say the least.
Eventually, Christine found herself referred to a pain management specialist who placed her on Lyrica and other strong narcotics to help with the pain. While on Lyrica, Christine experienced some relief from the numbness, burning, and tingling, which suggested a neurological component to her injury. Unfortunately, one of the side effects of being on Lyrica was weight gain, which led to additional stress and self-image/esteem issues for Christine on top of her frustrations over not being able to play piano as well as she could before she was hit.
Christine decided to wean herself off Lyrica, which incited her pain and discomfort. The return of her discomfort proved to the pain specialist that Christine had a neurological component to her pain that did not show up on the EMT. The narcotics helped the pain, but they put Christine to sleep, or made her so out of it that she could not play the piano. Therefore, there appeared to be no good solution to help Christine’s condition.
On top of that, because there was no objective findings to correlate to the pain, Christine’s own physicians had suggested that there was a psychiatric or depressive element to her “delayed recovery.” Words like “malingering,” “Secondary Gain,” and “Somatoform disorder” appeared in the records. Thankfully, the pain management physician ruled those out as potential explanations for Christine’s condition, writing in his note that “she clearly loses far more than she gains” and that he had “seen no evidence to suggest malingering or secondary gain” as being a factor. The pain specialist assured her that there are many people who experience chronic pain without evidence to show where the pain is coming from. Christine’s pain specialist advised her to forget about curing the pain, and to begin focus on how to manage it.
The defendant was an older woman in her mid to late 60’s. She was driving her 2007 Dodge Ram pickup with her husband in the front passenger seat and three 11-year-old boys in the back seat, two of whom were her grandsons. The wreck report said the truck was going 5 mph at the time of impact. The crash happened on a road running along the speedway. The defendant was headed back to Hickory, NC, after the race. Two other vehicles were traveling with the defendant’s vehicle, which transported other family members. The defendant’s vehicle was the first of the family’s vehicle to get out of the parking lot onto the road leaving the speedway.
Before filing the lawsuit, the insurer for the defendant refused to make any offer of settlement. During the case and at trial, the defendant argued that she was not liable for Christine’s injuries. The defendant and her insurer attacked the plaintiff’s case on multiple fronts. First, they denied being at fault. Second, they accused Christine of being at fault, which, in North Carolina, is contributory negligence, precluding any recovery at all even in the presence of negligence by the defendant. Last, they claimed that Christine was not injured at all, but if she was, anything beyond a sprain/strain and maybe a round of physical therapy was all that could be fairly attributed to the impact from the crash.
According to the defendant and her husband, they never saw what happened. According to them, their Dodge Ram was traveling 5-10 mph when they heard a sound to the right of their vehicle. When they look towards the right of their truck, they noticed that their passenger side mirror had collapsed on its hinge. They stopped their vehicle and the driver walked around the back of the truck where they noticed Luke’s client resting against the guardrail, crying. They heard another girl screaming, “He deliberately came over and hit her!” Before the police officer arrived to investigate, the defendant put the three 11-year-old boys in one of the other family vehicles, which were following behind. The officer never had an opportunity to interview the boys.
The defendant and her husband denied that the truck ever went any faster than 5 mph. They justified their statement by claiming that there were so many people out there on the road at the time of crash that there was no way to get up to any appreciable speed because there were so many pedestrians out. They claimed that a pedestrian had hit them, rather than the truck hitting a pedestrian. As they claimed, there were so many pedestrians out because they had stayed for the entire race and had not tried to leave early to beat the traffic. Luke’s client stuck to her claim that she left the speedway early. The contradiction in facts made this case ripe for trying the lie.
During discovery, Luke investigated the defendant’s timeline of events. Luke contacted a member of the race team that won that particular race, who told him the winning driver crossed the line at 10:47 p.m. Luke knew the police report showed the wreck occurred at 10:48 p.m. The evidence proved the defendant’s timeline of events could not be accurate. The race data combined with the defendant’s inaccurate statement made it more likely than not the defendant was trying to leave the race early to beat the traffic and, in the process, violated the rule that requires drivers to look where they’re going, pay attention, and see what’s there to be seen, hitting Christine in the process. On top of all this, the defendant and her husband did not present well in their videotaped depositions, appearing flippant, sarcastic, and shifty. The defendant driver would not even acknowledge that the girl she saw next to the guardrail was the person suing her, or that her vehicle made contact with a person on the night in question.
Luke was the third lawyer to take the case. Christine’s first lawyer withdrew when the defendant’s insurance company would not make an offer of settlement. The second lawyer filed a lawsuit, but did not see it through, and ended up taking a voluntary dismissal without prejudice. When the case got to Luke, he re-filed the lawsuit, conducted discovery and took the case to mediation. The insurance company still refused to make any offer of settlement. A month before trial, they received an offer for $10,000. Luke’s client rejected the offer.
Pre Trial Reptile©:
Luke’s trial preparation of this case was aided in large part by a workday to identify all of the defendant’s untruths and exploit them at trial. The major Reptilian© theme was trying the lie. One of the most Reptilian© menaces is a liar, and Luke used the things the defendant said and the way they handled themselves on rather obvious aspects of the case (e.g. truck and human being came into contact) along with the cold hard facts (e.g. winner crossed the finish line at 10:47:51 p.m.) to try the lie.
Reptiling© the case:
Voir dire:
Luke’s voir dire in this case was limited, which was a judgment call. The one question Luke asked the jury was if they had ever heard the saying, “If it walks the like duck, quacks like a duck, and swims like a duck, then it’s probably a duck.” Everyone nodded in agreement. Luke then brought this question back up in closing argument to explain “the greater weight of the evidence.” In contrast, the defense voir dire was long-winded, confusing, on code, and less impactful. Less is more was the theory in jury selection.
Opening:
Luke’s safety rule was this: “Whenever pedestrians and drivers are in the same place at the same time, drivers must look where they’re going, pay attention, and see what there is to be seen to protect pedestrians from harm.”
Order of Proof:
The first witnesses were the defendant and her husband. Luke called them first to commit them to their theory of the case, setting up the great lie, which the race team engineer and the race data proved to be false testimony. However, when asked what happened on the day of the crash, the defendant chose to backtrack the timeline of events that she presented at her deposition, acknowledging that she had stated they had stayed to the end and that she had been mistaken when she stated to the contrary at deposition. Luke still impeached the defendant, and impeached her again by pointing out the timing of when she had realized this information, and pointing out that before coming to trial, she had learned about what the race team engineer would testify about regarding the timing of the conclusion of the race. Finally, Luke pointed out that the defendant had not bothered to correct her deposition testimony before coming to trial, deciding instead to wait. In closing, Luke used this to point out the rule that all witnesses must tell the truth, and if you discovered you said something wrong, then you must take immediate steps to correct it.
During the husband’s testimony, Luke attempted to go review his deposition testimony with him on the stand. The husband refused, stating that he did not have his eyeglasses and would not be able to read it. Luke then politely reminded the husband that he had seen him reviewing his deposition transcript during a break, whereupon the husband grabbed the deposition out of Luke’s hands and went along with the examination. Husband acknowledged that his wife took the three young boys out of the truck and placed them in another vehicle before the officer arrived. Husband also acknowledged he had been drinking that day since about 2 p.m. However, he said he only had a couple of beers.
Following the testimony of the defendant and her husband, Luke called the race team engineer, who explained the race scoring data, which contradicted the defendant’s deposition timeline. This testimony, combined with the wreck report (stipulated into evidence), along with the defendant and her husband’s testimony, created what Luke calls “the atmosphere of sketchiness” over at the defense table. By approaching the case this way, the entire defense theory of the case was called into question from the beginning, which in turn lent credibility to the entire theory of the plaintiff – not just on liability, but on all aspects of the plaintiff’s case, including causation and damages.
After Luke tried the lie with the defendant, he called an eyewitness to the crash, which proved to be a horrible idea. The eyewitness had previously been cooperative and gave deposition testimony regarding what she saw that night, essentially that she saw the truck cross over into the pedestrian lane and strike the plaintiff. At trial she was not cooperative, accusing Luke of harassing her, stating that she recalled nothing of the night in question, stating that she recalled nothing of even giving a deposition regarding the event, etc. It was a nightmare. Thankfully, due to her uncooperative demeanor and stated lack of memory, she was deemed unavailable, paving the way for her deposition testimony to be admitted in lieu of her sworn testimony.
Luke’s next witness was a licensed engineer. The engineer was qualified, tendered and accepted by the Court as an expert in accident reconstruction and engineering. The Accident Reconstructionist proved to be more teacher than an expert. The Reconstructionist brought in a Dodge Ram mirror mounted to a six foot plank, to which was affixed a six foot ruler. The mirror was mounted at the same height as would be on the Defendant’s truck. Using this exhibit, he explained the basic concept of a lever and a mechanical advantage to explain how much pressure it would take to bend back the mirror. The jury could clearly see that it would take a lot of force to bend back the mirror. They also began to gain understanding of the mechanism of injury. All Luke needed now was a medical expert who would confirm the plaintiff’s damages.
The next witnesses Luke called were his client’s treating pain management physician and several before and after witnesses. Both of them confirmed that before the wreck she was energetic, outgoing, and athletic. She was committed to her studies, and enjoyed the opportunities she had to play the piano at weddings and banquets. However, after the wreck, she was not the same. Her before and after witnesses expressed that the plaintiff had her passion stripped away from her, and her treating physician confirmed that even with treatment, her injuries would not allow her to fulfill her dreams of becoming a musician. It was a powerful picture.
Luke played the DME’s video deposition after his treating physician. The DME argued that her pre-existing neck and back issues (caused by hours of playing piano) were the cause of her discomfort and pain, compounded by continuous stress from additional piano playing, and not the defendant’s Dodge Ram. The DME agreed that when she took Lyrica her pain decreased. He also agreed that her pain stemmed from nerve damage; however, he believed that 100% of that pain stems from a pre-existing condition. Luke asked the DME which side of the body the plaintiff was hit on. The DME stated that the truck hit her on the left side of her body.
Luke then asked, what the records say about the location of her injury. The DME stated that, all the records showed that all her injuries were present on the left side of her body. Luke then asked whether the records mention any symptoms on the right side of her body. The DME says, “No.” Luke followed up by asking, “Doctor, would have us believe that it’s pure coincidence that this young lady is experiencing pain in her left arm, shoulder and neck, and that all of her symptoms following being hit by the truck are on the left arm, shoulder, and neck.” The DME hemmed and hawed and said, “Well she likely had an exacerbation of a pre-existing condition.” Luke made it clear to the jury that you can buy anything in America. You can even buy a doctor to look at medical records and to say that someone is not hurt when they really are.
One of the last pieces of evidence presented to the jury was video footage of the defendant’s videotaped deposition. The defendant’s words really did not matter. It was her smirks, smiles, and refusal to acknowledge the simplest of facts (e.g. that her truck made contact with a human being) was what mattered. This reminded the jury of the defendant’s lies established at the outset of the case. Luke believes the timing of presentation of the videotaped deposition at the end, AFTER the “atmosphere of sketchiness” had already been established was important to the evidentiary value of the video footage.
Interestingly, Luke did not call his client to testify. While represented by the second attorney (remember Luke was attorney no. 3), a Black Hat defense lawyer deposed Christine. Unfortunately, Christine testified to some inaccurate information, albeit innocently, concerning her past medical history and treatment in that deposition which the defense could have used to impair Christine’s credibility. This is a reminder of how important it is to conduct thorough medical record gathering of a client’s pre-crash medical treatment before the client is deposed. The client needs to be aware of what the records say, even if they do not recall the treatment itself to avoid the jury painting her as a liar.
Closing:
During closing, Luke borrowed extensively from the Reptile© in the Mist book. He asked the jury whom they were going to believe. This case was all about trying the lie and the burden of proof. All Luke had to prove was that it was more likely than not that his client was hit at the speedway, suffered an injury or some injurious result on the left side of her body, and is experiencing constant pain because of those injuries. Luke embraced the idea that pain is subjective – always is. Therefore, anytime we are in a courtroom and someone says they are hurt, it always comes down to whether that person is to be believed.
Luke returned to the “walks like a duck, swims like a duck, must be a duck” analogy from voir dire to explain the greater weight of the evidence. Luke massaged the jury instructions on proximate cause to remind the jury about foreseeability, and that all he had to show to prove causation was that some type of bad outcome could happen from what the defendant did. He then spread the tentacles of danger by explaining how the rule applied in all types of circumstances every day to protect people from harm, such as walking from the courthouse parking lot into the courthouse to answer a summons. He revisited the errors on their deposition timeline, how they backtracked their deposition statement, and used a DME who despite the evidence refused to see that the wreck caused the plaintiff’s pain.
Luke stated, “Who are you going to believe? The treating physician who met and discussed the injuries with Christine, and got to know Christine over a period of years, or the hired gun DME who was hired for trial, who probably spent more time discussing the case in his deposition than he did even reviewing the records.” The code for DME is “hired gun,” and Luke knew the importance of placing the expert on code.
In addition, he admonished the jury to enforce the rules. He told the jury, “If they can get away with this kind of conduct with this young lady, then they can get away with it with anyone.” He reminded them that this was their opportunity to make the community safe by returning a verdict that would deter such harms from occurring in the future.
Verdict:
The jury returned with a verdict of $65,000. Later Luke was able to leverage that verdict into a settlement of $100,000.00. Luke used his safety rules, the defendant’s lies, and the burden of proof, to overcome his client’s pre-existing conditions, “phantom pain,” and venue with a conservative reputation. Luke had viewed this case as unwinnable; and he was ashamed to say he had resigned himself to losing before the real trial preparation had even begun. However, this case proved the power of the Reptile© and its strength when wielded by an attorney with the will and patience to learn and understand it. Luke cannot wait until his next trial when he will have a chance to see the full results of the Reptile© from beginning to end.
Note – The one and only comment to Luke from a Juror after the case was over was this – “You’re kind of cocky, but in a good way.”