We've said it before and we'll say it again - distracted driving is dangerous and can result in motorists suffering serious injuries. A prime example is a case involving a 47-year-old Virginia Beach Information Technology civilian contractor working with the U.S. Navy. He was stuck while sitting in traffic on Interstate 264 in Va Beach while driving to work.
The at-fault driver was distracted by his cell phone, checking directions on a GPS app. The negligent driver was traveling 55 mph in the center lane of multiple lanes, when he suddenly noticed the traffic slowing in front of him, so he quickly changed to the right lane, but was still distracted by his phone looking for directions, according to his testimony. When he looked up, it was too late. He smashed into the rear of our client’s automobile. The negligent driver admitted he was not looking at the road when the collision occurred.
Our client saw the other driver coming at the last second, but had nowhere to move. Our client put both feet on his brake and reached over and pulled his emergency brake to avoid being pushed into the car in front of him. Thankfully, our client’s efforts prevented another vehicle and its occupants from being involved in the collision. A 10-pound pack of batteries was launched from the far rear of our client’s vehicle due to the forceful impact and it struck him in the back of his neck and head. Our client was immediately dazed, but did not black out.
After being seen at the ER to be checked out for a head injury, our client followed up with his primary care doctor. He was complaining of radiating neck pain, referred to both physical therapy and a neurosurgeon. The neurosurgeon could not find a basis for surgery and the physical therapy failed to improve our client’s pain. He began treating with a local pain management doctor, Dr. Steven L. Gershon, who put our client through a battery of tests and referred him for a specialized type of physical therapy, known as McKenzie Therapy. The McKenzie Therapy provided some improvement for our client, but he was ultimately referred to a concussion clinic due to ongoing headaches as well as a facility to have epidural steroid injections. These treatments provided complete relief of our client’s symptoms for about five months.
However, he began to experience neck pain and headaches yet again. Dr. Gershon ordered more testing, which revealed that our client’s neck pain was being caused by loosening of his ligaments from the trauma of the collision, which was causing myofascial pain. Dr. Gershon began treating our client with trigger point medication injections, which provided our client with some relief for a couple months at a time. Dr. Gershon believed that our client would continue to need the trigger point injections to treat his pain for the rest of his life, although he never had these types of problems before the crash.
Key Legal Strategies
As a result of the various treatments our client had to undergo to diagnose and treat his pain, he was saddled with over $50,000 in medical bills. The insurance company, claiming that our client suffered “only soft tissue injuries” and should have recovered within a couple months, refused to make an offer that would even cover our client’s medical bills to settle the case. Not only would the insurance company’s offer not cover all of our client’s medical bills, but the car insurance company adjuster’s offer failed to give our client any compensation for the pain, suffering, and inconvenience he underwent for over a year of prior treatment, and no compensation for the fact that his problems were continuing. Personal injury attorney Randy Appleton, one of the senior partners with our firm, advised our client that his best shot was to take his case to a Virginia Beach jury, and to turn down the terrible offer that the car insurance adjuster was offering.
Given the complexity of our client’s injuries, Randy Appleton knew that he would have to obtain the testimony of these physicians who had helped our client get the best recovery possible. And of course the car insurance company was giving no value for what our client went through.
Randy Appleton and firm personal injury attorney Seth Scott wanted the jury to be able to appreciate the process Dr. Gershon undertook to diagnose and treat our client. Our attorneys took the depositions of all of our client’s treating physicians – the primary care doctor, the neurosurgeon, the pain management doctor who did the epidural injections, and the doctor that treated our client’s concussions. We then were fortunate to have Dr. Steven Gershon testify at trial and explain to the jury his “differential diagnosis” process whereby he tries to evaluate the source of a patient’s pain. Dr. Gershon testified that all of his patients, including our client, are different and have different sources of pain. He explained to the jury that despite the fact that our client did not have any broken bones, the accident caused injuries and pain and each of the treating providers provided Dr. Gershon with information about locating the sources of our client’s pain. This ultimately helped Dr. Gershon find the best treatment for our client’s pain.
While doctors can provide the jury with information regarding their findings and treatment, that is only part of a personal injury victim’s harm. We elected to have our client’s wife testify about how our client’s injuries severely impacted his life and their family. Law firm personal injury attorney Seth Scott handled the examination of his wife, who told the jury that our client used to be able to do all of the car maintenance for his family, build play houses the size of apartments for his daughters, and generally enjoyed tinkering and building. After the collision, he was unable to enjoy any of these activities and the family had to pay others to perform them. Through tears, our client’s wife testified that his relationship with her and his 6 year old daughter was not the same as it was the day before the collision. Our client’s wife provided the jury with insight into the true pain, suffering, and inconvenience the collision caused our client, which the insurance company had completely ignored, when offering essentially the medical expenses only.
In an attempt to minimize our client’s recovery, the responsible driver’s attorney retained an expert witness doctor to review our client’s medical records going back to 1989, and testify at trial, even though he never conducted a personal examination of our client. The doctor pointed to our client’s prior complaints of neck pain…in 1992 and 2011. Each of these complaints of neck pain was limited to one doctor visit. Further, the doctor testified that our client’s “soft tissue” injuries should have healed after a couple months and that only $15,000 of our client’s medical bills were caused by the collision.
Through experience with this particular “hired gun” expert witness doctor and a subpoena of his records, on cross examination, firm personal injury attorney Randy Appleton was able to prove that this doctor had received around $325,000 in payments for performing record reviews and testifying at trials in 2017. The doctor had performed over 400 such “medical records” reviews in the 4 years leading up to the trial. Finally, for at least two years prior to our client’s trial, the doctor had only testified on behalf of defendants and insurance companies. Randy Appleton made it clear that the doctor had an interest in having a good relationship with insurance companies.
At closing, Randy Appleton and Seth Scott carefully outlined and in full detail explained of our client’s damages – medical bills, injuries, physical pain, the psychological impact, and his inconvenience. Our personal injury attorneys advised the Virginia Beach Circuit Court jury that our client had already experienced over 1000 days of pain. We pointed out that our client had never missed an appointment at a doctor or his physical therapist because he was trying to get better. He also attended all of his appointments after work so that he would not lose any wages. Finally, we pointed out that the only way to fully and fairly compensate our client for his pain and inconvenience in the past and the future was with money, since they couldn’t magically take him back to where he was before this crash. This included detailed discussions about the impact that our client’s injuries had on his relationship with his family.
We asked the Virginia Beach jury for a specific amount of money for each harm he experienced and will experience in the future – medical bills, injuries, pain and mental anguish, and inconvenience. These amounts totaled $250,000.00, and because Virginia law allows a jury to award the judgment rate of interest going back to the date of an accident, we asked the jury to award the lion’s share of his damages at the judgment rate of interest, not from the day of their verdict, but rather from the date that the crash occurred. We reasoned that, like a loan or any other debt, the responsible defendant driver owed a debt to our client from the date of the collision and therefore, our client was entitled to interest from that date. And the judge approved a verdict form which granted the jury the right to decide that issue.
The Defendant driver’s attorney argued that the doctor the insurance company hired to review the records was more credible than our client’s treating physicians. She asked the jury to award our clients $25,000.00 in total damages, despite our client undergoing over two years of treatment, pain, suffering, and inconvenience and over $53,000 in medical bills.
The jury returned a verdict for $150,000 plus the statutory rate interest back from the date of the collision. We were pleased to determine that the foreperson of the jury was actually an FBI agent. In Virginia, like most states, the members of the jury vote informally on who will serve as the foreperson of a civil case jury, to guide the deliberations, and when the verdict was returned was the first time any of the attorneys learned that the FBI Special Agent was appointed by his fellow jurors to serve as the jury foreperson. With the interest included, the Virginia Beach jury verdict totaled approximately $175,000 when rendered.