The plaintiff claimed she suffered a herniated disc in her neck when her car was rear-ended while waiting in line at a bank drive-through.
But the facts presented some high hurdles for the two-lawyer firm that represented the plaintiff. For example, the car that hit her was only going 1 mph and there was no damage to either vehicle. The plaintiff’s baby, who was sleeping in the car, was unharmed and slept through the incident.
It was also undisputed that following the accident in question, the plaintiff was involved in two more rear-end collisions and a physical incident involving the police.
But the $15,000 settlement offer was unacceptable to the plaintiff.
“Our client was really very adamant about pressing her case and not settling for less than full value,” said plaintiffs’ attorney Laura Zois. “She said to us, ‘I’d rather have a jury say my case isn’t worth anything than to take this low offer.'”
Pride aside, the plaintiff’s legal case was not promising.
Ronald Miller, who tried the case along with Zois, said they were told by the settlement judge that “we were foolish and committing malpractice and we owed it to our client to take the offer.”
To raise the stakes even higher, the case was being tried in a notoriously conservative jurisdiction.
“Baltimore County is an old-boys’, blue-blood network and we’re these young attorneys coming in – we were definitely not in our own house,” Zois said.
Although many plaintiffs’ lawyers in the county opt to waive a jury trial in favor of a bench trial, Miller said they decided against it, “because we like talking to juries.”
Zois said the key to the win was their “brutal honesty” with the jury – not shying away from the adverse facts or from putting a price on their client’s pain and suffering.
Of the $125,000 verdict, $113,000 was for pain and suffering.
This was not the first time the fledgling firm, which opened in September 2002, has used this strategy to win a surprise verdict. Miller and Zois won a $300,000 verdict in a similar low-impact, no property-damage case last year.
The plaintiff, Chrystal Williams, was stopped at the bank drive-through when the car behind her bumped her vehicle.
The defendant, who testified at trial, admitted that she probably took her foot off the brake pedal and rolled into Williams’ car, but that she only experienced minor shaking of her car.
In Miller’s opening statement, he told the jury right off the bat that the case involved a minor impact.
“You have to tell them early on in the case so you don’t lose credibility. You’re going to shock the jury if they find out from the defense attorney or defense witness,” he explained.
As the story progressed, Miller and Zois gradually revealed just how mild the accident was, eventually telling the jury that the rear car was traveling less than 1 mph and admitting that the plaintiff’s baby slept through the accident.
They used the same straightforward but understated tactic in addressing the intervening cause issue – the plaintiff readily admitted she was in two other accidents without ceding that they caused her injuries.
The police incident was a more difficult issue. Several months after the first accident, the plaintiff was attending a school reunion where she was affected badly by a spiked drink. She testified that she blacked out and doesn’t remember the incident. The police officer, however, testified that she was charged with resisting arrest after the police had to wrestle with her and restrain her.
Again, the plaintiff’s attorneys addressed the adverse evidence in a straightforward fashion.
“She was very candid about everything. The defense attorney could not impeach her one iota: not one lie, not one overstatement. She was extremely credible and believable,” said Zois, who added that the only reason the defense knew about the two later accidents was because the plaintiff told them; no claims were made on those incidents.
Miller and Zois were also careful not to overwhelm the jury with engineering and biomechanics experts, relying on a single medical expert.
Even their own expert’s testimony was restrained.
“The tendency in cases like this is for lawyers to reach out and grab an expert who will be the best advocate, who will say anything. We used an expert to say ‘This is very surprising,'” said Miller.
On cross-examination, the doctor even admitted that according to the medical literature, the plaintiff’s injuries were consistent with crashes at 5-8 mph., but in this case, where the speed was under 1 mph., her injuries were highly unusual.
However, he did point to the MRI as proof that her injuries were real.
When Did The Injury Occur?
The sequence of events proved crucial to the final outcome of the case.
The plaintiff testified that she experienced no pain immediately following the Dec. 13, 1999 accident. In fact, she admitted that the impact was so minor she almost didn’t bother getting the defendant’s name and number.
But when she got home, she developed pain in her neck and went to the emergency room that night. The injury was treated as minor, but the pain continued.
It wasn’t until four months later that the plaintiff had the first of two MRIs. The plaintiff contended this test showed a herniated disk in her neck, but the defense strongly refuted this conclusion, saying that the images were perfectly normal for a 29-year-old.
Two months later, the incident with the police occurred, followed by the first of two subsequent rear end collisions, both of them minor.
The plaintiff had a second MRI after the police incident and second rear-end accident, but before the third one.
The plaintiff contended that these pictures showed the herniated disk quite clearly; while not conceding an injury at this point, the defense said that these pictures could be interpreted as showing minor neck damage.
The defense focused on this sequence of events to make its four-part argument to the jury. First, the medical records showed no clear evidence of a herniated disk. Second, that if there was an injury, it was extremely minor. Third, they contended that any injury that did exist, occurred after the accident in question, since it doesn’t show up on the original MRI and there were two subsequent incidents – a serious struggle with police and another minor accident – before the second MRI was taken. Finally, the defense argued that any injury that may have occurred was transitory and that the plaintiff suffered no permanent damage.
The plaintiff’s attorneys, in turn, argued that the fact that she went to the emergency room that night clearly indicated the plaintiff was injured in the original accident.
“To say that her injury was caused by the arrest was tantamount to calling her a liar,” said Miller. “At the core, their case was that she was a liar, and I don’t think the jury believed that. A trial always comes down to that core question.”
Although the plaintiff’s expert conceded that this type of injury is rarely seen in an accident of less than 5 mph, he also argued that it could occur in certain special circumstances.
For example, the plaintiff contended that at the moment of the collision, she was turned toward the passenger seat to put money back into her wallet.
“The studies only look at how rear-end collisions will affect a person facing forward, they don’t show what happens when they are leaning with their neck turned,” said Miller.
The defense expert, on the other hand, was adamant that the plaintiff could not be telling the truth.
“His testimony was it didn’t happen. He called our cl
ient a liar. He came across as an advocate for the defense – a hired gun,” Zois said.
It didn’t help his credibility when Zois cross-examined him and he admitted being paid $4,000 for his half-day appearance. The plaintiff’s expert, conversely, was primarily a defense expert and was paid $500 for his testimony.
Miller and Zois rested their case on the fact that although the plaintiff’s injuries were unlikely, they weren’t impossible. In Zois’ closing, she told the jury a story they had read in the newspaper months earlier about a Michigan man.
“A guy jumps off the Niagara Falls. What are his chances of surviving? It’s very unlikely – but he did,” she told the jury.
Miller and Zois, both of whom practiced on the defense side for years, knew the other side’s playbook – to blow up photos of the cars and point out that they had no damage.
“They took pictures of the car and showed them over and over again. But if you drop a carton of eggs, you don’t look at the carton for damage; you look at the eggs,” Miller said.
Zois even told the jury that when she was a defense attorney, she used to do the same thing.
‘Reducing It To The Ridiculous’
Many a plaintiffs’ attorney has struggled over whether to put a dollar amount on their client’s pain.
Those against it argue that a number might sound crass or backfire if it seems over-the-top to a jury; those in favor of it contend that, without guidance, the jury might come up with far less than the plaintiff expects.
Miller felt strongly that the jury should be given a number to work with.
In his opening, he gave them a hint, suggesting only the ruler with which he was going to ask them to measure the plaintiff’s pain and suffering, without telling them the final figure.
“One problem we faced in a case like this is the jurors have to go home to their family and friends and tell them they gave $125,000 for a bumper tap. One of the biggest problems plaintiffs have is jury peer pressure to give low damages,” Miller said.
He proposed awarding the plaintiff $10 per hour for past pain and $1 per hour for future pain, and called it “reducing it to the ridiculous.” Then, in closing, Zois asked the jury to do the math.
“Help wanted,” she said. “Here’s the job: 16 hours a day, 7 days a week, no vacation, constant pain. Ten bucks an hour.” For future pain, she asked the jury to give her client a mere $1 an hour for the rest of her life based on actuarial tables.
The total – $590,000 – coincidentally amounted to the same amount the defense expert made in one year.
“He gets to sit here and talk to you for one hour and go home to his family. My client has no time off. Who would want her job?” Zois asked the jury.
The jury was a “typical” Baltimore County collection of largely middle and upper-middle class professionals that included three teachers, an engineer and a nurse. It was not what the plaintiff’s attorneys were hoping for.
“Frankly, we were looking for people with a relatively low socio-economic class who were more alienated from the system. What we got was the exact opposite of what we wanted,” Miller said.
But that didn’t stop Zois from being “brutally honest” with them.
“I even said in closing, ‘If you don’t think my client was injured in this case – if you think she is lying about this – I don’t want you to give her any money at all, I want you to award zero dollars,” Zois recalled.
According to juror statements afterwards, it appeared there wasn’t much debate about whether the plaintiff was injured in the accident.
However, it appears that the jury did take into consideration the subsequent accidents and the proportion of damages they caused.
“I spoke with four jurors and they believed the police incident exacerbated her injuries,” said Miller. “At least four of the six jurors gave the defendant credit. They thought my client was injured in the [original] accident, and that the subsequent incidents made her worse.”
Daniel Moore of Towson, Md., who defended the case, noted that the jury did not award all of the plaintiff’s medical bills or the total amount of pain and suffering requested.
The verdict was “high but not outrageous,” he said, noting that there will not be an appeal.
In analyzing the award, Zois noted that the jury seemed to give the plaintiff the full amount they requested for past pain and suffering up until the time of the police incident, but reduced by 75 percent all past and future pain and suffering following the police incident. Zois speculated that this reduction was based on the assumption that the three subsequent incidents made her condition worse.
Plaintiffs’ Attorneys: Ronald V. Miller and Laura G. Zois of Miller & Zois in Baltimore, MD.
Defense Attorney: Daniel Moore of Moore & Jackson in Towson, Md.
The Case: Williams v. Wilson; March 24, 2004; Circuit Court, Baltimore County; Judge Christian M. Kahl.