Jury Sees Through Plaintiff’s Claims for Future Medical Expenses
In August of 2015, Jonathan Adelman and Becky Gabelman successfully defended an admitted fault case in Gwinnett County. The defendant admitted that she failed to yield and turned left in front of plaintiff’s vehicle causing the collision. Although plaintiff did not complain of injury at the scene, she immediately sought chiropractic treatment. After her course of chiropractic treatment did not resolve her pain, plaintiff saw two different medical doctors who diagnosed a herniated disc and facet pain syndrome. Both doctors recommended spinal injections. One of the doctors testified via video deposition and the other came live to trial. Plaintiff received one set of spinal injections and claimed, as confirmed by her doctors, that she would need one or two spinal injections every year for the rest of her life. She had over $18,000 in past medical expenses over $100,000 in claimed future expenses. Plaintiff’s counsel asked the jury to award between $246,000 and $490,000. After two (2) hours of deliberations, a jury awarded plaintiff $30,000. This was significantly less than plaintiff’s pre-trial demand of $125,000. Prior to trial, defendant offered $25,000 to settle the case.
Adelman and Salzillo Obtain Summary Judgment in $1MM Declaratory Judgment Action
On August 14, 2015, Jonathan Adelman and Alex Salzillo obtained summary judgment on behalf of an insurance company in a declaratory judgment action where the parties had stipulated that the insurance company would pay $1,000,000 if coverage applied for the underlying loss. The case stemmed from an automobile accident that was caused by the teenaged son of an insured individual who was the sole proprietor of a law practice. Plaintiff sought a determination that the insured’s business liability and commercial umbrella policies provided coverage for the accident. The case turned on whether the “non-owned auto” exception in the business policy had been triggered. In plaintiff’s motion for summary judgment, she urged the court to determine that the insured individual and his law practice were two separate entities, which she argued would have triggered the “non-owned auto” exception. In a 42 page opinion, Judge Murphy of the Northern District of Georgia agreed with the insurance company and granted summary judgment, finding no coverage. Judge Murphy held, in pertinent part, that the insured individual and his sole proprietorship law practice were one-in-the-same for purposes of determining the identity of the insured. Prior to Judge Murphy issuing his order, plaintiff had offered to compromise the claim for $650,000.
Waldon Adelman Cooks on Hot Summer Trial Calendar
It’s been a busy summer for defense litigation shop Waldon Adelman Castilla Hiestand & Prout. Over a period of three weeks, the 32-member firm tried nine jury cases to victory or minimal plaintiffs’ awards, continuing a courtroom-heavy schedule that has seen its members handle 23 jury trials this year. View the full article here: Daily Report Article
Defense Wins, Jury Awards Plaintiff Tylenol
In July of 2015, Ashley Rice successfully defended an admitted fault motor vehicle accident involving a nearly head-on collision and extensive property damage. Plaintiff sustained a visible laceration to his head at the scene. However, he delayed treatment for several days. Plaintiff subsequently underwent chiropractic therapy and epidural steroid injections for soft tissue back injuries. His MRI showed two lumbar protrusions. While plaintiff initially claimed medical expenses of nearly $20,000, he was only able to produce bills from licensed healthcare providers totaling $11,000. Moreover, his chiropractor testified that he accepted far less than the amount shown on the bill submitted for treatment of plaintiff’s alleged injuries. The Fulton County jury returned a verdict in the amount of $443.30. The jury explained that the figure represented a lifetime supply of Tylenol. Plaintiff’s pre-trial demand was $40,000. Defendant had offered $12,500.
Premises Liability Defense Verdict
In August, 2015, John Alday and Russell Waldon obtained a defense verdict from a 12 person Cobb County State Court jury in a premises liability case against a corporate defendant. Plaintiff alleged over $250,000 in incurred medical expenses and lost wages. Plaintiff had undergone multiple surgeries including a complete hip replacement. The case was defended on issues of both liability for the “slip and fall” and whether plaintiff’s injuries and claimed special damages were the proximate result of any alleged negligence on the part of the defendant corporation. The jury returned with a verdict for the defense after a 4 day trial and 3 hours of deliberation. Plaintiff’s lowest demand before trial was $850,000.
Plaintiff Turns Back On Pre-Trial Offer and, as a Result, Leaves a Considerable Sum on the Table
In July of 2015, John Alday and Anna Ismail tried a case to verdict in Cobb County State Court which resulted in the uninsured motorist carrier only paying twenty percent of the pre-suit offer. The case stemmed from a clear fault head-on collision motor vehicle accident which totaled the plaintiff’s Volvo SUV. As a result of the accident, plaintiff sustained a fractured vertebrate at C2, which she described as making her “feel like a bobblehead.” She was transported from the scene to a hospital, where she stayed for the next two days. Plaintiff had to wear a hard neck brace constantly for the next six months, followed by six months of arduous physical therapy. Her husband, who brought a claim for loss of consortium, had to do everything for her while she wore the neck brace, including feed her. On cross-examination, plaintiff’s treating physician admitted plaintiff was healing and improving throughout her care and that she sustained no vascular injuries or stability problems. (This flew in the face of the testimony from the plaintiff.) Plaintiff presented medical expenses of $35,000 and asked the jury to award $1.1 million. Prior to trial, plaintiffs received $25,000 from the liability carrier and medical payments from the uninsured carrier of $25,000. Pre-suit, the uninsured motorist carrier offered $44,000 in new funds to settle the case in response to a demand of $500,000. At trial, the jury returned after deliberating for thirty-four (34) minutes with a verdict stating that plaintiff had already been fully compensated and […]
Alex Salzillo Obtains One Outright Defense Verdict and One Nominal Verdict In Rear-End Collision Involving Two On-Duty Officers
In July, 2015, Alex Salzillo obtained a defense verdict on the claims of one plaintiff, with the Gwinnett County jury awarding only $1,000 to the other plaintiff. This was a case in which the defendant rear-ended two on-duty sheriff’s deputies, pushing their vehicle forward into another vehicle. The defendant admitted that he negligently caused the accident. Both officers complained of soft tissue injuries at the scene and went to the emergency room on the date of the accident. The officers then followed up with their primary care doctors and an orthopedist, and they received chiropractic treatment. One plaintiff was diagnosed with a concussion/closed head injury and soft tissue injuries and presented medical expenses of $9,000. The other plaintiff was diagnosed with a possible rotator cuff tear and soft tissue injuries, and presented medical expenses of $6,000. At trial, Mr. Salzillo was able to impeach one plaintiff numerous times regarding prior similar injuries and treatment. Further, the other plaintiff testified on cross-examination that his non-accident-related chiropractic treatments cost $20 in comparison to his $170.50 accident-related treatments. In closing, plaintiffs’ counsel asked the jury to award roughly $60,000 to one plaintiff and $43,000 to the other. The pre-trial offers were $12,900 and $10,800, and plaintiffs’ lowest demands were $19,000 and $18,000, respectively.
Jury’s Verdict Shows Extreme Generosity of Pre-Trial Offer
Jonathan Adelman obtained a very favorable verdict from a Paulding County jury in a clear liability motor vehicle accident involving substantial damage. Plaintiff was taken from the scene of the accident by ambulance and then followed up with a physical therapist and an orthopedist. Plaintiff had several spine injections and claimed permanent injuries to her low back, along with shooting pain into the legs. On cross-examination, plaintiff’s treating doctor admitted that there were significant degenerative conditions, including herniated discs, which were present before the accident. Furthermore, on cross-examination, plaintiff admitted that she had constant upper back pain in the years leading up to the accident. At trial, plaintiff presented medical bills of approximately $26,000 and asked for an award of $376,000. The jury returned with a verdict in the amount of $5,000, which was considerably less than the pre-trial offer of $19,000. Prior to trial, plaintiff refused to make a demand within the liability insurance limits.
Social Media Evidence as Impeachment
Pursuant to the Georgia Civil Practice Act, parties are entitled to the discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .” O.C.G.A. § 9-11-26. Our firm has successfully argued that content posted by plaintiffs to their social media accounts after a motor vehicle accident is subject to this provision. Such content has included photographs of a plaintiff smiling and jumping spread eagle into the air two (2) weeks before his deposition in which he testified that he could not walk more than a few blocks without pain. It has included a Facebook post of “I’m feeling so fantastic today!” the same day that a plaintiff reported to her chiropractor with moderate-to-severe pain complaints. Other content has included photographs of a still-injured plaintiff participating in a post-accident Muddy Buddy Run (a 3-4.5 mile long running race in which buddies work together to climb, jump and crawl through 8-10 obstacles). Many plaintiffs readily turn over post-accident social media content, acknowledging that it is as discoverable as post-accident vacation photographs and diaries. However, other plaintiffs have been resistant to the idea of producing content that they assumed was privately shared. Just because a plaintiff’s social media profile is controlled by privacy settings does not render the content protected. Judge Eddie Barker in Douglas County has noted that a plaintiff’s posting of information and photographs as to his or her daily activities is no different than a plaintiff telling a neighbor […]
Attempts to Amend UM Bad Faith Penalty Provisions
During the 2015 session of the Georgia General Assembly, the Georgia House of Representatives passed House Bill 303 which provided for the amendment of Georgia’s Uninsured Motorist Act, O.C.G.A. § 33-7-11 to provide for a minimum bad faith penalty of $25,000, regardless of the UM limits, plus attorney’s fees. Of note, the initial version of the bill called for unlimited penalties. The bill did not reach the Senate floor, but will likely be revisited next year. As explained below, the bad faith provisions contained in the current statute provide considerable protection to insureds over and beyond typical breach of contract claims. Uninsured/underinsured motorist claims are a mixed bag of tort and contract claims. A claimant insured must prove an entitlement to a tort recovery against an uninsured/underinsured motorist in order to be able to recover from the UM carrier. However, the claimant insured must also show that the policy is applicable. For instance, sometimes there is an issue as to whether the insured actually qualifies as an insured under the policy. Sometimes there are issues with multiple insurance policies issued by multiple companies as to which companies and policies provide primary coverage. When there is an issue as to whether or not coverage is owed, an insurance company has a contractual right to undertake an investigation, take statements under oath, request certain documents, etc. Often, sixty (60) days does not provide sufficient time period in which to undertake all of these efforts. Nonetheless, if a claimant insured makes a demand […]