“What I Learned in Trial…”

Jim Holland

On Friday, September 30, 2011, a King County jury returned a verdict of $505,204 against Allstate Insurance Company. In doing so, they ended a decade long battle between my client, Kevin Grennan, and his UIM carrier.

Kevin’s battle with Allstate began inconspicuously. In the early 1990’s, Kevin purchased insurance coverage with Allstate, including a $50,000 UIM policy. Kevin paid his premiums on time twice per year for seventeen years. In 1995, Kevin seriously injured his neck and back during a training exercise with the Army National Guard in Ft. Lewis. He sustained multiple cervical disc herniations and was diagnosed with chronic neck and back pain, including radiculopathy and numbness and tingling in both his upper and lower extremities. Kevin received a discharge from duty due to a service-related disability. He was non-narcotic dependent at the time. After medically retiring from the Army National Guard, Kevin continued his civilian job working full-time at Boeing. He continued to fish, camp, hike and exercise.

Around 7:30 AM on the morning of September 1, 2000, Kevin drove to work at Boeing’s Renton plant. An underinsured driver illegally attempted to cross his lane of travel. Kevin had milliseconds to react. He tried to brake, but t-boned the at-fault driver at nearly 25 mph. The airbag exploded. The car buckled under the force of the impact. His nose felt broken from impacting the airbag. His ears rang.

ER doctors diagnosed Kevin with neck and back sprains and strains and prescribed Vicodin. For the next three years all modalities of conservative care failed to control Kevin’s now intense neck and back pain. As of 2011, Kevin had incurred nearly $185,000 in medical specials and was narcotic dependent to control his pain.

Shortly after the accident the at-fault driver’s insurance carrier tendered $25,000 in limits. Allstate contributed $10,000 in PIP benefits and claimed that Kevin had been made whole for his injuries. Other than their waiver, Allstate offered zero dollars to settle this case. As the medical bills continued to pile up in the years leading to trial, Allstate continued to deny that the bills were related to the 2000 car accident, pointing instead to the 1995 military accident. Eventually, Allstate hired Dr. Patrick Bays to dispute the causation and damages. Dr. Bays wrote a 48-page treatise summarizing how Kevin had suffered nothing more than a sprain and strain and had returned to his pre-accident condition after a year.

When I stepped into this case in August of last year, our expert still could not give us a clear opinion on causation given the preexisting condition. He concluded that Kevin only needed another year of soft tissue treatment and massage therapy. After a decade of fighting, I had no intention of taking Allstate to trial to ask for one year of massage therapy. So I buried our expert and hunted down Kevin’s treating doctors.

I met more than three times with each of Kevin’s treating doctors. I learned that his doctors would be willing to testify that Kevin had torn the annulus on the inside of his L5-S1 disc. Moreover, once they understood how Allstate had accused their patient of lying, cheating and drug seeking, and how their help was essential to ensuring that this injury didn’t financially devastate Kevin, they were eager to assist.   They outlined a detailed course of care that included continued prescription medication use, RFA procedures every 18-24 months for life expectancy (26 years), cervical and lumbar MRI’s every three years for life, and four office visits per year with the pain management center. Then we asked Kevin’s treating physicians to review Dr. Bays’ 48-page work of pulp fiction, and we scheduled video perpetuation deps. Kevin’s doctors opined that the cost of conservative future care would be $173,600 and they thoroughly discredited Dr. Bays’ opinions. I suspected that defense counsel would not be prepared this far in advance of trial. They weren’t. My doctors gave fantastic video deps, repeating and restating key sections of causation and damages without objection.

Next, I got to work on visual aids. I hired a trial consultant, Jeff Boyd, to go over the presentation of the evidence. We didn’t have any visual aids to help the jury understand what our client had been through. So we prepared blow-up photographs of the vehicle damage. I prepared a diagram of the scene directly from the police officer’s report. I tracked down the police officer ten years after the accident and had him testify first on the stand to set the scene and help the jury understand the forces of impact. The officer gave great testimony, was authoritative and unimpeachable. I obtained videos of each of the procedures that my client had endured, and secured stipulations from defense to authenticate them. With the exception of the videos of procedures and a few photos projected from my laptop onto a screen, I relied primarily on blow up posterboard exhibits. My reasoning was that it’s challenging enough to try a case alone. Using too much technology can require perfect coordination and I didn’t feel that I could risk not having a file load, or constantly having to be at the computer instead of free to walk and talk. Posterboards won’t let you down, don’t cause delays and didn’t require any additional distraction or thought about how to operate them. Just flip them around and keep on moving.

I drove out to the lay witnesses’ houses and met with them personally. I selected only the two or three lay witnesses that were absolutely perfect for our case. I wanted more quality and less volume. I had their direct exams prepared weeks in advance of trial and we went over them time and again in person and on the phone.

We successfully moved to exclude several prejudicial remarks in the medical records and the impairment rating from the VA, the latter by arguing that the defense had not hired a doctor who could explain what it meant to the jury. We moved to have chart notes redacted, such as the physical therapy chart notes specifying my client’s “Functional Index Score.” In the absence of an actual physical therapist to explain what my client’s 88% functional index score taken four weeks after the accident meant, that small bit of evidence could ruin my case.

I decided to not have my client in trial with me the entire time. I didn’t want 12 sets of eyes staring at Kevin for nearly 40 hours each and thinking that if he squirmed too much in his seat he might be faking, or that if he squirmed too little in his seat he might be uninjured. I addressed his absence from trial during voir dire by asking whether anyone could think of a reason why someone with a permanent injury might not want to sit in trial to listen to his friends and family talk about how the client is only a shadow of his former self. I think the jury understood that not being in trial all week could help my client heal psychologically, and that witnesses could give more candid answers.

All in all, I wasn’t thrilled with the panel that we ended up with. I had a gal sitting on my jury who thought “all lawyers are crooks, and they all lie.” Apparently, her dad was a lawyer and routinely fabricated evidence. I resisted the urge to ask if she was related to defense counsel. My attempt at challenging for cause came up short, and the judge let her sit. I wasn’t actually too concerned with her though, because in a race between which of the two sides was making up evidence and lying, I knew I had Allstate beat. Turns out I was right; she was very favorable for us.

There was one other woman who sat on the jury that I got bad feelings about. She lived in Duvall and worked for Genie Industries. I was thinking “Tea Party” all the way, and it turns out I was likely right, although she didn’t stick around afterwards to chat. She volunteered little in voir dire, smiled knowingly at me through trial, and then voted against everything except past medical expenses. Unfortunately I couldn’t strike her because I was forced to blow peremptories on jurors who were likely members of the Third Reich, such as the gal who was married to a personal injury defense lawyer and flat out told me I was not likely going to persuade her. In retrospect, had I done a better job on challenges for cause, I likely could have removed this juror and preserved another peremptory for my Duvall Tea Party juror.

On damages, I elected not to make a wage loss claim. The claim was muddy and complex and potentially distracting. Further, it seemed contrary to my client’s position; he was working full-time. In fact, with the exception of two extensive medical leaves of absence, and two weeks off immediately following the wreck, my client had actually worked longer hours since the wreck in an attempt to keep his mind off the pain. Somehow, wage loss seemed to be a stretch and I wanted to beat the defense to reasonableness. This case was about honoring promises. I had a soldier who had honored his promise, and we weren’t about to come in on bended knee asking for a handout. I needed the jury to see that my client’s demands were high, but reasonable.

So on the issue of damages, I didn’t ask for a lot of things. I didn’t ask for $44,000 in prescription medication bills. I didn’t ask for $32,000 for bone scans and other MRI’s. I didn’t ask for PT bills, rehabilitation bills, and on and on. I put together a chart of more than 15 separate, related medical providers and the associated charges, and crossed off all of the things my client was not asking for. I did this right in front of the jury. I left the door open by telling the jury that they could award these past medical expenses, and gave them the supporting bills, but that my client had instructed me to ask for only three things, all of which I took directly from David Ball’s “On Damages”; 1) to fix what can be fixed – past medical treatment from only the pain management doctor totaling $81,604; 2) to help what can be helped – future medical treatment from only the pain management doctor totaling $173,600, and 3) a per diem amount for the greatest harm in the case (what can’t be fixed or helped, what this injury did to Kevin).

In opening I tried to anchor the jury to a high number by concluding with a promise that by the end of trial the evidence would show why this was the kind of case that would require a large verdict to balance the harms and losses. I then gave them my figure of more than one million dollars, which was exactly three times the past and future Dr. Yang medical specials, and came out to $3.62 per hour.

In retrospect, I should have worked harder to help the jury understand where I came up with my per diem figure, or to better put the figure into context. Kevin is a pretty vanilla guy, and I struggled to find a tangible purpose for the noneconomic damages (he did not, for example, need a custom van or a motorized 4×4 wheelchair). I know that there was something there that the jury could connect with, a purpose, a mission that general damages could help Kevin fulfill; I just never found it. As it was, I think the jury struggled with the amorphous figure, as they just stared at $800,000 without a sense of what good it could do for my client’s life. In lieu of a tangible noneconomic damages figure, I relied on three-times multiple of special damages.

In closing, I pointed to the chart of things we weren’t asking for, and suggested that Kevin was not coming to trial asking for every bit of money he possibly could claim. I think it was a risk, and this strategy was the subject of much debate and differing opinions within the office. I elected to go with a clean, principled, fair stance on damages, all of which were supported by the evidence. The cleanest damages case was the pain management care; we knew that the need for a pain management specialist was absolutely caused by the car wreck, and that was the cleanest and also the biggest damages item. That was basically all we asked for in terms of past and future economic damages.   I wanted to force the jury to make a hard choice. I did not want them to balk at giving Kevin $50,000 because it was all for narcotics. I did not care about $3,000 here or $500 there in related treatment. I did not want to give the jury an easy out to feel like they were throwing Kevin a bone by giving him the cost of a $2,000 MRI. We went to trial hunting elephants, not flock shooting pigeons. We needed to kill three large elephants, past care, future care, and general damages, and we needed to make the jury hesitate before denying Kevin any one of the three reasonable items for which he had waited ten years.   I wanted those three items to be big, unassailable, and clean.

Finally, I had to deal with the problem that my client looked thin, gaunt, and hollow in the cheeks and eyes. Instead of fighting it, I embraced it. My client was a drug user. On the stand during direct (he went last by the way, and his credibility had long since been established by lay witnesses, and the jury was anxious to see this decorated soldier and now ghost of a man), I had my client show the jury his Fentanyl patch. I asked him what he wanted to do with that patch. He told the jury how he wanted to rip it off and scream and run down the hall.

At the end of Kevin’s direct exam, I dimmed the lights and showed the jury photos of Kevin only a month before the accident. The photos were blown up on a screen and loomed over the jury. Kevin was thick, and muscular and healthy. It was a candid shot of Kevin (the best kind), standing in a field, hands on hips, looking off into the distance. In the background was a bulldozer. Dr. Bays’ conclusions went up in smoke right about that time. The gasps from the jury were nearly audible. I rested.

I think this strategy was particularly effective. Of course Kevin was a drug-user, that’s all that kept him from the business end of his service pistol. Using the pre-accident photo of Kevin at the end really brought the point home for the jury, and I stole this advice from David Ball, who points out that Romeo and Juliet is powerful only because when we see the two interact we already know the tragic ending. Once the jury knew Kevin’s ending, the before of what he once was became all the more powerful.

Apparently the jury thought so too, although only 10 out of 12 jurors agreed with the cost of future medical care and general damages of $250,000 for a total of $505,204. Either way, the consensus feedback suggested that the strategy worked.

The feedback from the jury was not all warm and fuzzy, however. Many listened very earnestly to the defense expert, and didn’t find him as sleazy and repulsive as I did. They also found his presentation far more organized than my experts’; I could have done a better job of prepping my experts on their files or of explaining why a treating physician with hundreds of patients might be a little less organized than a hired gun.

The jurors also thoroughly plied through every chart note they were given, which will make me doubly careful the next time around about the chart notes I offer.

Finally, we only got 10 out of the 12 jurors, which told me that every bit of our preparation and illustrative evidence was necessary. I think the less than unanimous verdict is a cautionary tale about how close I came to getting a verdict of thirty-grand, the amount the defense asked for.

In the end, I always felt that this case was never about how MRI’s failed to show abnormal findings, or about whether Kevin’s subjective complaints failed to match objective findings, or about whether my client had burning, stabbing and shooting pain and radiculopathy prior to this accident. This case was about Kevin; the soldier, the son, the brother, the co-worker. This case was about his daily struggle with pain, and about how his insurance company was asking the jury for a corporate bailout instead of honoring their promise to catch Kevin with “good hands” when he fell. This case was about a man who once volunteered to take a bullet for any of us to protect principles of right and wrong and honor, and about how his insurance company called him, to use Rick Friedman’s phrase, “a liar and a cheat and a fraud” in open court because doing so might just help them pin the 30 procedures and $200,000 in medical bills on someone else.

Having Kevin’s mother and brother cry on my shoulder in their living room brought home the truth about this case; nothing Dr. Bays said could refute a mother’s knowledge of her son, and a brother’s sorrow at seeing Kevin as a ghost.

I refused to let the defense hide in the medicine and I spent most of the trial focusing on lay witness testimony about how this affected Kevin’s life (again, thanks to Rick Friedman). I felt that this trial would become about whatever I spent my time making it about. In the end, I think it turned out to be about Kevin, and now it’s going to be about Allstate’s bad faith. On that note, I was sure to write a letter to Allstate nearly a year before this trial giving them one final opportunity to pay the policy limits of $50,000. In that letter I also made sure to put them on notice that should the jury return a sizeable verdict, my client would bring claims for common law bad faith and violations of IFCA (via WAC 284-30-330(7)). As I write this, our IFCA letter to the OIC has been sent, and we have a pending motion for leave to amend the complaint adding claims of bad faith upon expiration of the 20-day IFCA tolling period. The prospect of treble damages for a violation of IFCA, plus attorneys fees and expert costs now raises Allstate’s exposure to north of $1.6 million. My client and I assume that we now at least have Allstate’s attention.

Thanks to everyone who offered advice, support, guidance, briefs, or just an ear to hear me blather on and on about this case. Even though I walked into trial alone, it took a village to get there prepared. I can’t wait to get back into a courtroom again.

— Jim Holland

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