Mediation Statement in Construction Site Accident Claim

Below is a sample construction accident mediation statement. Below are other sample mediation statements in personal injury cases.

Judge David R. Hartwell
6495 New Hampshire Avenue
Hyattsville, Maryland 20783

RE: Davis v. Henderson

Dear Judge Hartwell:

This office represents, Plaintiffs Joseph Davis and Manny Perez. The following serves as counsel’s assessment of this case as requested in this Court’s correspondence of January 3, 2021.

Facts Likely to Be Proven at Trial

On February 7, 2019, at approximately 1:00 a.m., Joseph Davis and Manny Perez were in the backseat of a car, driven by Kevin Reese. William Stone was in the passenger seat as their vehicle proceeded in the left lane of northbound Cherry Hill Road in Montgomery County, Maryland. There was road construction under way at the intersection of Randolph Road and Route 29. There were general signs placed along Cherry Hill Road indicating that motorists were entering a construction area.

The Defendant, Provident Construction, left on the roadway a front end loader. Provident did not place any advance warning regarding the front end loader, nor was the truck or work area around the asphalt patch lit with nighttime light towers. Likewise, Provident did not employ any standard method to close off the left lane or to channel traffic around this hazard, such as flag men, road flares, triangles, flashing barrels, or otherwise.

The record will also show that more than one of the few lights on the rear of the front end loader were broken and not operating, and the loader did not have MDOT required high visibility reflective striping. Moreover, Provident put up a sign warning motorists that the left lane closed in 1,000 feet. However, just 300 feet past that sign, employees of Provident Construction had moved a front end loader out into the left lane of Cherry Hill Road to place a small asphalt patch in the travel lane. The location of this work was well before the other construction taking place at that time.

Plaintiffs were driving behind a gentleman named Brett King, who testified that he had no advance warning of the front end loader and had to make an evasive swerve. Mr. King stated that he barely avoided contact with the vehicle and noticed the front end loader only after seeing the reflection of his headlights off an object in the left lane. Plaintiffs’ vehicle, whose visibility was diminished further by the King vehicle, collided into the Provident front end loader at approximately 40 miles per hour.

Weaknesses in Our Case

From a liability standpoint, Mr. Davis and Mr. Perez are in a good position: both were backseat passengers in the vehicle. Defendant Provident claims that the driver and the front seat passenger were contributorily negligent. Plaintiff Reese makes a compelling case that he was not negligent in causing the accident. But even if Reese’s claim fails, it is difficult for Provident to argue that their negligence was not at least a substantial contributing cause of the accident.

The biggest weakness in Plaintiffs’ case generally is the possibility that a jury will decide that these were four guys who were drinking and deserve what they got, and therefore construe the facts most favorably to Provident’s argument. We think it is unlikely – given the absence of evidence that the driver was drinking – that this evidence will be admitted at trial.

From a liability standpoint, Plaintiff Davis has limited economic damages of $73,525.71, far less than one would expect with these injuries. Mr. Davis will be unable to bring a viable lost wage claim and he has, in spite of his severe injuries, been able to continue his job, albeit with pain and difficulty. Mr. Manny has $6,034.88 in medical bills from his emergency room visit. In spite of his injuries, he failed to seek follow-up treatment.

Damages Evaluation

Joseph Davis: As a result of the accident, Joseph Davis sustained significant and permanent orthopedic injuries, neurological injuries, and disfigurement. Plaintiff Davis has incurred past medical expenses to date in the amount of $73,525.71, and is making a claim for future medical expenses of $15,000. Mr. Davis’ medical treatment is ongoing and expected to continue to increase between now and the trial in this matter.

As a result of the injuries sustained in the accident, Plaintiff Davis was admitted to Suburban Hospital for 20 days, from September 7, 2019 until his discharge on September 27, 2019. In the crash, Plaintiff Davis sustained severe, multiple bilateral fractures to his face with extensive orbital fractures, a skull fracture, and TMJ fractures on the left side. He was intubated and admitted to the ICU. While hospitalized, he underwent an open reduction and internal fixation of the left sided fractures. During the course of his hospitalization, he was unconscious for approximately two weeks and slowly regained consciousness. Upon discharge from the hospital, he was unable to care for himself for 2 months and required around the clock assistance for all of his activities of daily living.

Orthopedically, he has ongoing persistent right sided neck pain that radiates into his arm, and pain in his lower back with left sided radiating pain into his buttocks. Plaintiff Davis sought various forms of treatment to alleviate the orthopedic symptoms without success. Following the accident, Plaintiff Davis also suffered from bilateral hearing loss for which he sought medical treatment and was diagnosed with a canal laceration. He had a complete recovery from the hearing loss.

As a result of the facial trauma and surgeries, Plaintiff Davis has a permanent facial disfigurement. His reconstructive surgeon has recommended the removal of plates and screws in Plaintiff Davis’ face. This surgery is estimated to cost $15,000.00. Plaintiff Davis’ injuries are severe, ongoing, and permanent in nature.

Manny Perez: As a result of the crash, Plaintiff Perez was taken by ambulance to Washington Hospital Center and complained of pain in his neck, chest, and abdomen. Plaintiff Perez had x-rays competed of his chest and CT scans of his abdomen and pelvis. His diagnostic tests were normal. He was discharged with a diagnosis of soft tissue injuries. His medical expenses to date are $6,034.88. He is not making any claim for permanency.

Settlement Negotiations

There have been no settlement negotiations to date. The Plaintiffs have not made any demands and the Defendants have not made any offers.

Litigation Costs

The undersigned attorney’s office represents Plaintiffs Davis and Perez on a contingency fee basis and our office will only recover expenses should there be a recovery for the Plaintiffs. The future expenses to litigate the case will include three expert witness fees on damages, two expert witness fees for liability experts, and the cost of trial exhibits. We estimate the future expenses to be approximately $30,000 to $45,000.

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