SWEET TASTE OF VICTORY PRECEDED BY THE AGONY OF DEFEAT

By Don Keenan

My last blog chronicled the first no-recovery jury trial that I’ve suffered since 1989, after two-and-a-half weeks in Kentucky on a case that will surely be reversed. I’ve had two defense verdicts since 1989, but had previously settled with the major defendant prior to, or during, trial. After this recent Kentucky loss, five days later we started a trial in Seattle, Wash., on a very difficult bike crash.

Before I take this dog too far down the road, let me credit the folks who worked hard on the case: Larry Kahn (the Seattle lawyer who had worked the case for nearly three years), Andrew Gould (from my office, who worked the liability side of the case), Keenen Law Firm fellow Elizabeth Larrick (who worked alongside me on the damage side of the case), and finally, the team was rounded out by Kim McClay (from Larry’s office who did most of the motion work).

The case concluded the middle of the second week for $7.25 million for reasons I will document below.

Difficulties in the facts of the case included the following:

1. It was a bike crash with no eyewitnesses. This was compounded by the plaintiff stating she recalled hitting a “bump or something” on the narrow street, right after an oncoming car that was hugging the center line moved to provide passage of our client who waved with her left hand and began braking with her right hand.

2. After she hit the “bump or something” she had no memory of how she traveled over 40 feet and struck a mailbox on the side of the road paralyzing her completely from the waist down and taking away about half of the mobility of her upper extremity. She can eat and drink without assistance.

3. A suit was filed against the municipality for creating the “bump” in the road. There had been a number of prior claims resulting from this bump; however, the municipality destroyed the claims files. In an earlier bike crash, a different court found (as a matter of law) willful destruction of evidence (the claims files) and indicated that a spoliation charge would be given to the jury. Unfortunately, our judge refused to admit the evidence of the destruction of the claims file and refused a spoliation charge. We attempted to revisit that ruling many times during the two weeks.

4. While we were precluded from getting the destroyed claims file into evidence, the defense was able to tell the jury repeatedly that the municipality had 80 similar bump incidents with people in cars, on motorcycles and bicycles, who had “safely navigated” the bump.

5. As many of you know, the code for bicyclist/bicycle is, “two-wheel deathtrap with dangerous rider.” We were able to take our plaintiff off-code by establishing that she was born and raised in Germany, where they actually issue bike licenses preceded by a bike safety course. Further, she had her bicycle since she was a teen (now age 36), was wearing a helmet and had all appropriate safety gear. However, the facts indicated that she lived right around the corner from this “bump” and had instructed her three children to never ride over it on a bike. The most damaging was the road itself, which was a steep incline in the direction of the plaintiff’s path. One of our experts foolishly did a helmet mounted video cam, traveling at 25 miles per hour down the road, and focus groups switched the code back to “dangerous death trap” in light of that. We had an interesting voir dire that I conducted, which centered (in part) on the bicycle code. In the future, I will dedicate a separate blog on the code and the successful rat killing questions we came up with.

6. Another devastating court ruling was the admissibility of the medical bills, totaling about $1.4 million (in and of itself, that wasn’t that bad). What was toxic was the fact the client used a funding service, which put the plaintiff and family on-code as exaggerators at best and liars at worst. You see, the funding company chose the healthcare providers, negotiated the rates and then proceeded to pay the providers’ bills. On many occasions, the client had requested a copy of the actual bills to see the costs of service (not just what the provider was charging). Prior to trial, she was never given any accounting. Elizabeth Larrick was given the task of determining what the true medical bills were, so we could use it as evidence during trial. Her efforts were stonewalled by the funding company; they refused to give her access to the care providers and with the limited information she had available, Elizabeth discovered massive overbilling. Here is just a sample of what she found (and the methods used to confirm it as evidence):

$425.00 + $265.00 per hour for RN care visits, making average RN home visit $815.00 (for approximately 2-3 hours); company accepted 40 percent of that rate (funding company’s invoices and various depositions confirmed this information)

$425.00 per hour for RN meal prep (deposition)

$85.00 for CNA care (funding company’s invoices and deposition confirmed the company only paid the CNA $13-14.50/hour)

$30,000.00+ in consulting fees, travel and meal expenses to the client’s account (funding company’s invoices)

$8,800.00 flat rate per week for home health care (medical provider deposition; but the company refused to provide itemized breakdown of the charges for each care giver and/or each visit) with the weekly rate including a mix of RN and CNA care ranging from 30-100 hours a week, but patient was charged for 24/7 care

$19,000.00+ for three months of RN case manager; but RN case manager testified under oath her hourly charge is $110.00, and she only spent 3-4 hours a month on client’s case (deposition)

With this evidence being admissible, we focus grouped and discovered that while the funding company and medical providers were clearly culpable, so was the family (at least, some believed) to the point that some thought the family participated in the overbilling in order to present a bigger picture of damages at trial.

7. Larry did a good job on opening (by the time of trial we had gone through 27 revisions and 19 focus groups). As always, to make sure the opening is bullet proof, he read the opening (the defense lawyer used an iPad teleprompter). We used two statistics at the beginning. Both came in without objection; however, the rules were excluded because they were not contained in the expert disclosures or documented in the discovery depositions.

8. Finally, there was the fact that the client had no memory of what happened after she hit the bump. How did she travel 40 feet down the hill and strike the mailbox? Elizabeth (who is also Dean of the Witness Prep for the KBC) will soon write a blog on how that gap of memory should have been filled. In the meantime, with the gap clearly in the existing trial testimony, the defense was able to build most of their case around saying it was impossible for her to hit the bump. Instead, they theorized that after she waved to the oncoming car and began braking, she lost control of the bicycle – well after she passed the bump – which caused her to hit the mailbox. The defense had a ton of experts establish this point of view, including a bicyclist expert, a biomechanical engineer, a human factors expert, and others. The client’s lack of memory provided the runway for the defense’s defense.

THE GOOD STUFF

We were able to employ the Reptile^© stool technique for this case, producing strong evidence that the person who designed the bump was unqualified. Our first witness was a very experienced road construction expert, who told the jury that only a civil engineer could design these bumps and their written approval was required – which did not occur in the case.

Additionally, we were able to establish some hypocrisy in that the investigating police officers referred to it as a “speed bump” in all their reports. This was important, because the rules of the road and road construction require all speed bumps to be painted and have a warning sign.

Both were lacking on this bump and any of the other 66 bumps. So we got some spreading the tentacles of danger. However, the fact that the plaintiff lived less than 75 yards from the bump (traveling this road on bicycle and car hundreds of times) put a dent in the painted and signed evidence, because focus groups clearly believed she knew the bump existed and where it was located.

Another plus occurred when Andrew successfully excluded the video reenactment done by our expert (but we were certain that the defense would get it in during their case). So by the end of the first week, we ended no better than a 50/50. When we settled in the middle of the second week, we had increased the odds with Andrew effectively arguing that the video reconstruction done by our expert was excluded.

On the last day, I found out that a very pleasant, gray haired lawyer from Chicago was present in the courtroom for one reason, and one reason only: To see how the Reptile^© unfolded so he could (he thought) become better armed for the many cases that insurance company will see from you. I’m convinced that while he spent two weeks in the courtroom with us, he really doesn’t know how the Reptile^© was imbedded or deployed for the case.

Note: You’re probably wondering why I’m referring to the opposition as “defense lawyers” in this case. Recall my blog, “Black Hats vs. Defense Lawyers,” where I say not all defense lawyers are Black Hats (see the Keenan Edge, 1^st edition, pg. 115); in the Seattle case we experienced true defense lawyers, unlike those in Kentucky.     

I have always been upfront and candid with all of you and I’ll continue to do so by saying that while the $7.25 million settlement was good, it was not what I wanted. But I can sleep at night knowing our client and her family did not leave the courtroom empty handed. I’ve reached the point in my career where I can limit my cases to slam dunk liability and huge damages. I don’t need to try cases, as my reputation is clearly intact. I’ve said many times that in order for me to be a legitimate teacher and a real mentor to all of you woodpeckers, I need to continue trying cases (and, from time to time, accepting very difficult cases). I find that I learn more from cases like this than any of the slam dunks, so in the coming months at the Keenan Ball College, I will be updating the faculty with the new things I’ve learned. You need to know those lessons.

After two back-to-back trials, I must admit I am tired and weary. It takes a lot for this Marine to admit that, but I live to fight another day and have four trials coming up before the end of the year. Please believe that I’m a better lawyer because of these two trials, and will be fully energized for the next one in September – as well as the others.

I’ll end this where I began, and commend Larry Kahn for his passion, for the work that Andrew Gould brought to this trial, for our fellow Elizabeth Larrick, and for all the motion work done by Kim McClay. Stay tuned for additional blogs with further explanation of what was learned during this case.

Bottom Line: The agony of defeat and its pain is equaled by nothing other but the thrill and sweet taste of victory. It is this that makes us live to fight another day.