A driver who was checking directions on his cell phone while traveling at 55 mph on I-264 in Virginia Beach, VA, slammed into the back of our client’s car. The force of the impact launched a 10-pound pack of batteries from our client’s back seat and into his neck and head. As a result of the blow, our personal injury client developed a chronic pain syndrome.
The rear-end collision happened during morning rush hour when traffic had slowed to a near-stop. The at-fault driver quickly changed lanes as he approached the backup, but he kept his focus on his phone. He did not look up until it was too late to avoid rear-ending our client. The at-fault driver fully admitted to this negligence.
Our client saw the approaching crash and put both his feet on the brake so his car would not be pushed into the vehicle ahead of his. This quick and considerate thinking prevented a chain-reaction, but it also left our client a sitting duck.
Being hit with the pack of batteries dazed our client but did not knock him unconscious. A trip to the ER confirmed no fractures or spinal cord damage, but a follow-up visit with a primary care physician resulted in referrals to a physical therapist and a neurologist. Problems with radiating neck pain raised concerns, but the neurologist could find no reason to suggest surgery. Pain management specialist Dr. Steven L. Gershon recommended the McKenzie Method as nondrug therapy, and this did result in temporary improvement.
The recurrence of symptoms such as headaches, however, led to a referral to a concussion clinic. Epidural steroid injections would block pain for up to five months at a time, but the problems always returned. Further testing by Dr. Gershon identified the underlying problem as loosened ligaments in the neck—a condition that did not exist before the rear-end collision.
The loosened ligaments caused myofascial pain, which doctors teat with trigger-point injections. Our client will need these injections for the rest of his life.
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Key Legal Strategy
The at-fault driver never denied being distracted or causing the crash. His car insurance provider expressed a willingness to settle our client’s personal injury claims, but the amount offered fell well short of medical expenses to date. The insurance company was also unprepared to offer money to cover ongoing medical care or to provide compensation for the pain, suffering and inconvenience our client experienced as a result of falling victim to their policyholder’s negligence.
Consultations with one of our Virginia Beach-based personal injury attorneys convinced the injured man that the only way to receive full and fair compensation was to take the case before a civil trial jury. Convincing jurors to find for our client required educating them about myofascial pain and the long road to a diagnosis and symptom management.
Lead attorney Randy Appleton also knew that testimony from the physicians who treated our client would prove to be essential. In addition to taking depositions from the primary care doctor, the neurosurgeon, the pain management doctor who administered epidural injections, and the doctor that treated our client’s concussions, Appleton had Dr. Gershon take the witness stand to explain his diagnostic process.
During the trial, Dr. Gershon told jurors that each of his patients, including our client, was different. He also described how the blow from the pack of batteries could cause lasting injuries without breaking bones.
This medical information could only carry so much weight. To give jurors the full picture of how the rear-end collision, the resulting neck injury and the subsequent chronic pain negatively affected our client’s life, our attorneys asked the injured man’s wife to testify.
She told jurors that her husband used to do all of the car maintenance for his family and build playhouses the size of apartments for his daughter. After the collision, he was no longer able to enjoy tinkering and building. He now needed to pay others to perform these tasks.
Through tears, our client’s wife further testified that his relationship with her and his 6-year-old daughter was not the same as it was the day before the crash. This provided the jury with insight into the true pain, suffering and inconvenience the rear-end collision and its aftermath inflicted on our client.
The insurance company for the at-fault driver continued insisting that our client deserved only partial medical expenses. To support this argument, the defense team hired an expert witness to review our client’s medical records for the past 30 years.
At trial, this defense witness pointed to two isolated complaints of neck pain from years earlier as “proof” that any pain following the crash was the recurrence of a previous problem. This was asserted even though our client’s records clearly showed each incident was a one-time event and that the incidents were separated by two decades.
Our firm’s attorneys know this particular expert witness. The person operates as a hired gun for insurance companies and had testified or prepared reports in more than 400 cases during the four years leading up to this one. In 2017 alone, the person took $325,000 in payments for testimony and medical record reviews. Examinations of injured plaintiffs were rarely performed, and none was conducted on our client.
The judge presiding over this trial allowed us to share this information with jurors. Randy Appleton made it clear that the doctor had an interest in having a good relationship with insurance companies.
At the close of the trial, the insurance company stated that our client deserved only $25,000 in compensation for the payment of medical bills. At that point, the injured man had racked up more than $53,000 in bills for doctor visits, therapy sessions, medications and injections.
The insurance company also, again, stated nothing was due to our client for his pain, suffering and inconvenience. Our attorneys countered these assertions by documenting our clients’ expenses, reminding jurors that the injured man had already spent more than 1,000 days in pain, and stressed that our then-47-year-old client would need treatment for myofascial pain for the rest of his life.
We also pointed out that our client never missed a doctor’s appointment or a physical therapy session because he was trying to get better. Each visit and session was scheduled after work so he would not lose any wages by taking time off from his job as a U.S. Navy contractor.
Last, we explained that awarding our client money was the only way to fully and fairly compensate him for his past and future pain and inconvenience. Nothing anyone could do would magically return him to the health and family relationships he enjoyed before the crash.
We asked for an award of $250,000 for all claims. The jury returned a verdict that ordered the insurance company to pay our client $150,000 plus interest calculated from the day of the rear-end collision. That brought the full value of the personal injury jury award to $175,000.
Court and Date: Virginia Beach Circuit Court, 2018
Staff: Randy Appleton, partner, and Seth Scott, attorney