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TRACTOR-TRAILER COLLISION ALLEGEDLY RESULTED IN DEBILITATING STROKES

Plaintiff Attorney(s): Daryl L. Derryberry (lead), Derryberry Zips Lawhorn PLLC, Tyler, TX
Craig D. Zips, Derryberry Zips Lawhorn PLLC, Tyler, TX

Defense Attorney(s): Joshua T. Kutchin (co-lead), Fanning, Harper, Martinson, Brandt & Kutchin, Dallas, TX (GKD Management L.P.), W. Scott Simpson (co-lead), Simpson, McMahan, Glick & Burford PLLC, Birmingham, AL (CMH Manufacturing Inc.), James E. Cuellar, Wells & Cuellar, P.C., Houston, TX (CMH Manufacturing Inc.)

Facts & Allegations: On Jan. 13, 2016, plaintiff Demon Savage, early 40s, an unemployed U.S. Navy veteran, was driving a 2004 Ford Expedition on State Highway 37 near Mineola. A tractor-trailer was traveling toward him in the oncoming lane with oversized cargo: a manufactured home. The truck driver was in the course and scope of his employment with GKD Management L.P. The cargo had been loaded that morning in Bonham at a manufacturing plant owned by CMH Manufacturing Inc., the company that provided most of GKD’s business. The truck delivery was headed to Louisiana. As Savage’s vehicle and the 18-wheeler approached each other, one or more boards flew off the trailer, and one lodged itself in Savage’s windshield. Savage lost control and went off the road. He claimed lower back injuries.

The type of board that came off the truck is called oriented strand board. The parties also referred to it as roof planking.

It was being used to secure the plastic wrap that had been wrapped around the manufactured home for transport to Louisiana.

Savage sued GKD Management L.P., operating as A&G Commercial Trucking. GKD filed a third-party claim against CMH Manufacturing Inc., operating as Clayton Homes­Bonham. Savage then added claims of his own against CMH.

Savage alleged negligence against both companies on a theory of respondeat superior, based on their employees’ conduct, and neither of the defendants disputed the issue of course and scope of employment. Savage also alleged negligent hiring, training and retention.

Against A&G, Savage alleged that its driver violated Federal Motor Carrier Safety Regulations, including CFR section 393.100, which generally requires truck drivers to secure their cargo and keep it from blowing or falling off.

Savage further alleged that truck driver performed only a haphazard inspection of the cargo before starting his trip. He did not use a ladder to inspect the cargo from on top. Even though the top of the cargo was 14 feet above the ground, all he did was walk around it while standing on the ground, plaintiff’s counsel maintained.

Savage also alleged that the truck driver failed to perform an in-transit inspection within the first 25 miles as required by A&G’s policies and procedures and by Federal Motor Carrier Safety Regulations. Savage further alleged that the truck driver failed to perform any in-transit cargo inspection during the trip. If he did perform an in-transit inspection, it was not documented.

After the incident, the truck driver kept going. Savage was able to pull back onto the road and follow him. When the truck driver eventually stopped for some unrelated reason, Savage told him what had happened, and he provided Savage with all the required information.

Plaintiff’s counsel noted that the truck driver never reported the incident to police and that the incident took place off of the route that the state Department of Motor Vehicles had prescribed for the trip. That is, the driver had deviated from the route, and plaintiff’s counsel argued that that was the reason he did not call the police. Generally, deviating from the route is a crime, for both the driver and his employer.

As to Clayton Homes-Bonham, Savage alleged negligence on the part of its employee in charge of wrapping the cargo with plastic wrap and securing it with oriented strand board on the morning of the trip. He failed to wrap the cargo properly and secure the plastic wrap properly, Savage alleged.

The basis for the direct negligence claims against Clayton Homes-Bonham was that this employee had numerous performance reviews with CMH indicating that his work quality was “poor.”

Both defendants initially questioned whether the board in question came from GKD’s truck or not. However, it became clear during discovery that it did.

INJURIES/DAMAGES: annular tear; back and neck; decompression surgery; facetectomy; foraminotomyl foraminectomy; herniated disc at C4-5; herniated disc at L5-S1; laminotomy; physical therapy

Savage went to the emergency room by private vehicle on the date of the accident. He claimed a significant herniated disc at C4-5, a more prominent herniated disc at L5-S1, and an annular tear at L5-Sl. He testified that, when his vehicle left the road, it bounced violently over the terrain until it came to a stop.

At the emergency room, Savage complained of neck and back pain and was treated and released.

He underwent some physical therapy before undergoing surgery in May 2016. The surgery consisted of laminotomies, foraminotomies, partial facetectomies and subtotal decompression, all at L5-Sl.

His surgeon testified that Savage will need a fusion at L5-S1 and, depending on the results of a future select nerve root injection, either a fusion or decompression at L4-5. He testified that the reasonable cost of a single procedure including both a fusion at L5-S1 and a decompression at L4-5 would be about $275,000 to $300,000. He predicted adjacent segment disease would eventually result from the fusion at L5-S1 and that Savage would therefore need a fusion at L4-5 within eight to 12 years, at a cost of $225,000 to $250,000.

Savage sought about $193,000 for past medical bills; about $530,000 to $585,000 for future medical bills, including a nerve root injection and two surgeries; and a little less than $1 million for lost earning capacity and lost household services. He also sought past and future physical pain, mental anguish, physical impairment and disfigurement.

The defense argued that all the complaints and treatment that Savage attributed to the accident, including any future surgeries, were a result of pre-existing conditions. Savage had had lower back problems since the early 2000s.

RESULT: A&G’s insurer agreed to pay Savage $1.1 million to settle all his claims. In addition, pursuant to an agree­ment between the two defendants, A&G paid all of Clayton Homes-Bonham’s attorney fees and expenses in the case up to $180,000.

A&G had a $1 million primary policy and a $5 million umbrella policy. Clayton Homes-Bonham was self-insured.

Insurer(s): American Inter-Fidelity Exchange for GKD

Plaintiff Expert(s): Brian Reece, M.D., orthopedic surgery, Frisco, TX (treating surgeon)
Pete Sullivan, trucks, Houston, TX
John Swiger, Ph.D., economics, San Antonio, TX

Defense Expert(s): Karen B. Linsteadt, CPC, coding & billing (medical), Plano, TX
George Mendez, CPA, economics, San Antonio, TX
Roby D. Mize, M.D., orthopedic surgery, Dallas, TX
Danny Phillips, accident reconstruction, Dallas, TX
J. Clark Race, M.D., orthopedic surgery, Austin, TX
Richard A. Suss, M.D., neuroradiology, Dallas, TX
Gary D. Thomas, trucks, Waco, TX David R. Tompos, manufactured housing, Nappanee, IN

BOARD FLEW OFF TRAILER, STRUCK PLAINTIFF’S WINDSHIELD

Plaintiff Attorney(s): Daryl L. Derryberry (lead), Derryberry Zips Lawhorn PLLC, Tyler, TX,
Tab E. Lawhorn, Derryberry Zips Lawhorn PLLC, Tyler, TX, Craig D. Zips, Derryberry Zips Lawhorn PLLC, Tyler, TX

Defense Attorney(s): J. Hans Barcus (co-lead), Cantrell, Ray & Barcus, Huntsville, TX (DAT Truck Lines Inc., Handrijono Oetomo), Randy G. Walters (co-lead), Walters, Balido & Crain, Dallas, TX (HNL Truck Lines Inc.), Christopher Pierce, Walters, Balido & Crain, Dallas, TX (HNL Truck Lines Inc.)

Facts & Allegations: On Feb. 17, 2016, plaintiff Wanda Huddleston, 79, retired, was driving north in a Chevrolet Silverado pickup truck on U.S. Highway 69 near Lindale. Handrijono Oetomo, an employee of DAT Truck Lines Inc., was driving south in an 18-wheeler owned or leased by HNL Truck Lines Inc. It was early morning and dark, and traffic was heavy. Oetomo attempted a U-turn in an open intersection, and Huddleston struck the 18-wheeler. She sustained multiple injuries and later had multiple strokes, which caused her to become mentally incapacitated. The investigating officer gave Oetomo a ticket for failing to yield the right of way.

Huddleston’s son, on her behalf, sued Oetomo, DAT and HNL for negligently making an unsafe U-turn, failing to yield the right of way and failing to keep a proper lookout. He also sued DAT for violating numerous policies and procedures and Federal Motor Carrier Safety Administration regulations by not giving Oetemo any driver training, not disciplining him for driver log violations, not suspending him after he was given a citation, and not making a determination of whether the accident was preventable. The plaintiff sued HNL on theories of vicarious liability, alleging that Oetomo was a statutory employee of HNL.

Plaintiff’s counsel said that Oetomo, in deposition, took no responsibility for the accident and blamed Huddleston, in part, because women have slower reflexes.

Plaintiff’s counsel argued that Oetemo was lost and unfamiliar with the area, he was in a rush and he falsified his logs. The truck’s data recorder said the truck had been operating for more than 13 hours, but Oetomo’s handwritten logs said he had been driving for only 7.25 hours.

Under federal regulations, Oetemo shouldn’t have been driving the vehicle at all because he didn’t understand English well enough, according to plaintiff’s counsel.

The defense argued that Huddleston was contributorily negligent for driving too fast, not keeping a proper lookout, not controlling her speed and not braking or turning in time to avoid the collision.

The defense accident reconstruction expert opined that Huddleston should have been able to see the truck and stop before the impact.

An eyewitness who was behind Huddleston was able to stop, the defense noted.

HNL further argued that the truck was not a listed vehicle under its insurance policy and that it therefore had no insurance coverage.

Plaintiff’s counsel countered that, because the policy had a particular endorsement, known as an MCS-90 endorsement, the carrier would have to pay any eventual judgment.

INJURIES/DAMAGES: craniotomy; fracture, leg; hardware implanted; internal fixation; open reduction; pins/rods/ screws; stroke; subdural hematoma

Huddleston sustained a ,leg fracture and a subdural hematoma. She claimed that the accident caused two to three debilitating strokes; as well.

She underwent open_ reduction and internal fixation of the fracture, with placement of pins and screws. For the subdural hematoma, she underwent a craniotomy.

As a result of the strokes, she required 24-hour care and had to move into a nursing home.

The· plaintiffs’ neurology expert opined that the strokes were related to the accident.

Huddleston sought past medical bills of about $315,000, as well as $918,000 for the present value of her life-care plan. She also claimed past and future physical pain, mental anguish, physical impairment and disfigurement.

The defense neurology expert opined that strokes resulted from pre-existing conditions, not from the accident.

RESULT: The case settled for a total of $1.4 million. DAT and Oetemo settled on Sept. 16, 2016, for their policy limit of $1 million, paid by their carrier. HNL settled at mediation on March 6, 2017, for $400,000, paid by HNL’s carrier. HNL’s policy limit under the MCS-90 endorsement was $750,000.

Insurer(s): Global Hawk Insurance Co. for DAT and Oeterho
Wilshire Insurance Co; for HNL

Plaintiff Expert(s): Steve Irwin, accident reconstruction, Dallas, TX.
Rodney Isom, Ph.D., life care planning, Irving, TX
Pete Sullivan? trucks, Houston, TX John Swiger, Ph.D., economics, San Antonio, TX
Kathy Toler, M.D., neurqlogy, Dallas, TX

Defense Expert(s): Leonard Hershkowitz, M.D., neurology, Houston, TX
Clifford L. Mccarter, accident reconstruction, San Antonio, TX

17-YEAR-OLD WAS FATALLY SHOT AT AFTER-HOURS BYOB NIGHT CLUB

Plaintiff Attorney(s): Guy I. Wade, III (lead), Derryberry Zips Lawhorn, P.L.L.C., Waxahachie, TX; Daryl L. Derryberry, Derryberry Zips Lawhorn, P.L.L.C., Tyler, TX

Defense Attorney(s): John Howell House (lead), Burt Barr & Associates, LLP, Dallas, TX; John Holman Barr, Burt Barr & Associates, LLP, Dallas, TX

Facts & Allegations: On May 21, 2011, plaintiffs’ decedent Martin Blea Jr., 17, his sister, age 32, and their brother, age 35, were invitees on the premises of The Pussycat Lounge, an after-hours BYOB nightclub at 101 Solo Road in Odessa. At about 3 a.m., Martin’s sister was walking from the ladies’ room toward her brothers, when an unidentified man grabbed ¬∑her in a sexually provocative manner. When she resisted, the man punched her in the fac¬∑e, knocking her down, and proceeded to assault her on the ground. Martin saw her from the dance floor and came over to intervene, and a fight ensued. Another customer, Steve Uresti, pulled out a 9-millimeter handgun and fired several shots into the air. He then fired several more shots, one of which hit Martin in the face, fatally injuring him.

In November 2012, Uresti was convicted of manslaughter in connection with Martin’s death and was sentenced to 20 years in prison.

Before the assault on Martin’s sister, the man who assaulted her had been conversing with Uresti and other patrons.

The Blea family alleged that the owners and operators of The Pussycat Lounge were TI Club LLC, JGC Management LLC, and Bryan Scott Foster.

Blea’s parents sued TI Club, JGC and Foster for premises liability. They alleged that . the security at the club was inadequate and the club’s operators failed to enforce their policy of patting down patrons and using a hand-held metal detector wand to check for weapons as patrons entered.

The plaintiffs alleged that, on the date of the incident and for several years before, the defendants owned . and operated The Pussycat Lounge (or its predecessors on the same premises) and another club, Jaguars Gold Club, at 6824 Cargo Road, less than a mile away. According to the plaintiffs, the defendants knew or should have known of the risk that “persons in the immediate vicinity” who patronized these clubs might foreseeably injure other patrons.
The plaintiffs alleged that, in the three years before the incident, police officers and sheriff’s deputies had been called repeatedly and often to 101 Solo Road and 6824 Cargo Road to investigate violent criminal conduct, including armed robbery, deadly conduct, gunfire, aggravated assault with a deadly weapon and sexual assault.

The defendants denied that they were in control of the premises. They maintained that the premises had been orally leased to someone else, an individual, who ran the club and was responsible for security.

The defendants also denied that the operators’ negligence, if any, was a proximate cause of Martin’s death. They argued that the shooting was gang-related, and they pointed to the shooting as either the sole proximate cause or a superseding cause of Martin’s injury and death.

The defendants further argued that Martin was contributorily negligent and that no responsible 17-year­old would have been at a club at 3 a.m. where people drink alcohol and where violent gang members were known to congregate.

In addition, the defense contended that the club’s security policies were followed and that, no matter what precautions are ¬≠taken, some people will find a way to get around them. “Guns don’t kill people. People kill people” was a theme of the defense.

Injuries/Damages: death; face; gunshot wound

Martin was shot below the eye with a 9-millimeter handgun. He fell to the floor and struggled to breathe until an ambulance arrived. The ambulance arrived and transported him to the hospital, where he was pronounced dead.

The paid or incurred funeral and burial expenses were $11,423.06, and the paid or incurred medical bills were $1,193.50.

The estate also claimed conscious pain and suffering for the time between the shooting and when he was pronounced dead.

Martin’s parents sought damages for past and future loss of Martin’s affection, solace, comfort, companionship, society, assistance, emotional support, and love; past and future mental anguish, grief, and sorrow; and past and future loss of the pecuniary value of Martin’s services. He was their youngest child.

Martin was a week away from graduating a year early from high school and had recently purchased a mobile car wash business from his brother. He had also taken college classes in welding. His father said he and Martin enjoyed many outdoor activities together and that Martin was a big help around the house.

Result: The case settled for the policy limit of $1 million.

Insurer(s): Scottsdale Insurance Co. for all defendants

Plaintiff Expert(s): Karim H. Vellani, security premises liability, Sugar Land, TX

Defense Expert(s): Robert L. Jackson, Jr., security/premises liability, DeSoto, TX; Robert D. Johnson, Ph.D., toxicology, Haslet, TX; Billy Koontz, gangs, Lubbock, TX

Editor’s Note: This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.

OILFIELD ACCIDENT – WORKPLACE SAFETY

The jury verdict in this case was the 6th largest verdict in Texas for a workplace safety case in 2009 as reported by Verdict Search

We obtained a significant jury verdict after a 6 day trial for the 9 year old son of an oilfield worker who was killed. Additionally, we negotiated an additional substantial settlement with the deceased’s employer based on claims of gross negligence.

We were hired to represent the boy long after the case had been filed. At the time we began representing the boy, the total offer from both Defendants (which were the deceased’s employer and the drilling operator) to resolve the boy’s claims was a little over 10% of the gross amounts ultimately received on the verdict and in settlement.

DEFENDANT TRUCK DRIVER HAD SEVERAL PRIOR MOVING VIOLATIONS

Plaintiff Attorney(s): Daryl L. Derryberry {lead), Derryberry Zips Lawhorn, P.L.L.C., Tyler, TX; Tab E. Lawhorn, Derryberry Zips Lawhorn, P.L.L.C., Tyler, TX

Defense Attorney(s): Ronald W. Johnson (co-lead), Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, Dallas, TX

(Brittany Nicole Robinett); Marc A. Sheiness (co-lead), Sheiness, Glover & Grossman LLP, Houston, TX

(Watergator Inc.); Will Conine, Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, Dallas, TX (Brittany Nicole Robinett); Kamy M. Schiffman, Sheiness, Glover & Grossman LLP, Houston, TX (Watergator Inc.)

Facts & Allegations: On July 2, 2014, plaintiff Stacy Lee Scott, 46, a truck driver, was operating a 10-wheeler commercial truck on Interstate 20 West in Harrison County. Brittany Nicole Robinett was in a Ford F-350 pickup truck, hauling some drill pipe on a flatbed trailer. Robinett rear­ended Scott, whose in-cab video camera recorded the violent jarring of the impact. Scott claimed neck and back injuries.

The Robinett truck and trailer were owned by or leased to Watergator Inc.

Scott sued Robinett for negligently failing to keep a proper lookout, driving too fast and following too closely. He sued Watergator Inc. under respondeat superior and for negligently violating its policies by failing to conduct a post-accident drug test of Robinett; by failing to investigate the wreck; and by providing Robinett a company truck even though she had five prior convictions for moving violations. Scott claimed that Watergator’s policies prohibited giving a company vehicle to anyone convicted of more than three moving violations.

Scott also alleged that Robinett was using her cell phone constantly for 44 minutes before the accident and at the time of the accident. During that period, her cell phone records showed 194 calls or text messages to or from a single number.

Robinett testified that she accepted responsibility for failing to control her speed and rear-ending Scott. However, she denied using her cell phone in any manner at the time of the wreck. Plaintiff’s counsel argued that the cell phone records showed unequivocally that Robinett was using her cell phone at the time of the accident, but Robinett’s counsel argued that the cell phone records were inaccurate.

Robinett’s counsel also noted that two of Robinett’s prior moving-violation convictions were for a child not wearing a seat belt, which counsel argued did not reflect on Robinett’s driving skills.

Watergator’s counsel noted that Scott violated his company’s rules by not undergoing a drug test after the accident.

Injuries/Damages: back and neck; epidural injections; fusion, lumbar; herniated disc at C3-4; herniated disc at C4-5; herniated disc at L3-4; herniated disc at L4-5; lower back; pins/rods/screws; steroid injection

Scott claimed herniated discs and facet tears at C3-4, C4-5, L3-4 and L4-5, as well as post-traumatic stress disorder.

The accident was in the afternoon, and he sought treatment the next morning. He initially treated through workers’ compensation, but he felt that he was not receiving adequate care, and he switched to other doctors, including a neurosurgeon. He tried physical therapy, but found it too painful. He underwent lumbar epidural steroid injections and, in April 2015, a discogram.

On June 19, 2015, he underwent a posterolateral fusion at L3-4 and L4-5 with placement of pedicle screws on the left and harvesting of autologous bone from the iliac crest. The neurosurgeon opined that Scott’s neck and back injuries were caused by the accident and that he would need an anterior cervical microdiscectomy and arthroplasty at C3-4 and C4-5. He further opined that Scott would develop adjacent segment disease in both the lumbar and, after the neck surgery, the cervical spine, and that he would therefore require a second lumbar procedure and a second cervical procedure, at either the level above or the level below. Each of the three future surgeries would cost about $100,000, he testified.

Scott also claimed that he developed PTSD, as a result of risking his life trying to extricate Robinett from her vehicle, which had burst into flames after the impact. Robinett ultimately was able to extricate herself, and Scott helped her move away from the burning vehicle.

Scott claimed that, because of PTSD, he would be unable to drive a commercial truck for a living for at least several years, even if he fully recovered from his neck and back injuries. He treated with a psychiatrist and a counselor for PTSD and claimed that he would continue to need such treatment.

Scott had been in one or two prior accidents, for which he treated with a chiropractor. He described them as minor accidents with minor injuries that resolved.

Scott’s paid or incurred medical bills were $161,925.47. He also sought $385,811.81 for future treatment, $1,004,266 for past and future lost earning capacity and lost household services; and unspecified damages for past and future physical pain and mental anguish, physical impairment and disfigurement.

The plaintiff’s wife sought damages for past and future loss of household services and consortium.

The defense medical billing expert opined that paid or incurred bills of the neurosurgeon and the surgical facility, including the bills for the surgery and injections, were significantly more than he would consider reasonable. These bills totaled a little less than $150,000.

Also, the defense noted that the treating neurosurgeon had a letter of protection from plaintiff’s counsel, and that Scott’s workers’ compensation doctor’s opinion was that the surgeries were not medically necessary.

Insurer(s): Stratford Insurance Co. for both defendants

Plaintiff Expert(s): Paula Bradley, LPC, LMFT, psychology/ counseling, Longview, TX (treater); Richard L. Fulbright, Ph.D., neuropsychology, Dallas, TX; Charles Gordon, M.D., neurosurgery, Tyler, TX (treater); Rodney Isom, Ph.D., vocational rehabilitation, Irving, TX; Catherin Ann Roberts, M.D., psychiatry, Dallas, TX (treater); John Swiger, Ph.D., economics, San Antonio, TX

Defense Expert(s): Marc Chapman, coding & billing (medical), Austin, TX

Editor’s Note: This report is based on information that was provided by plaintiffs’, Watergator’s and Robinett’s counsel.

PLAINTIFF SAID TRUCKER FAILED TO WAIT HIS TURN TO CROSS BRIDGE

Plaintiff Attorney(s): Daryl L. Derryberry, Derryberry Zips Lawhorn P11C, Tyler, TX

Defense Attorney(s): Larry J. Goldman, Goldman & Associates PLLC, San Antonio, TX, Gregory J. Peterson, Goldman & Associates PLLC, San Antonio, TX

Facts & Allegations: On Oct. 22, 2014, plaintiff James Smith, 37, a laborer, was-driving a Dodge pickup truck, the lead vehicle in a two-vehicle caravan to a job site. He was approaching a narrow, one-lane bridge on Franklin Ranch Road, an unpaved, two-way road in McMullen County. Smith’s pickup and a loaded 18-wheeler collided head-on on the bridge. The driver of the 18-wheeler was Zygmunt Kurpiewski, who owned and operated Dilley Dump Inc., an intrastate carrier based in Frio County. Dilley Dump was a one-man operation consisting of Kurpiewski and his truck. The contributing factors on the police report were “unsafe speed” on Smith and ”failed to give half of roadway” on Kurpiewski. Smith sustained knee and back injuries.

Smith sued  for negligently failing to keep a proper lookout, failing to yield the right of way and crossing the bridge when it was unsafe. He also sued Dilley Dump for negligent hiring and negligent retention of Kurpiewski.

Both drivers were familiar with this bridge, and drivers going opposite· directio.ii’s customarily took turns crossing it. Sinith claimed that he pulled over just before the bridge to let an oncoming 18-wheeler pass. He said he then pulled onto the bridge and was struck head-on by Kurpiewski, who had failed to wait his turn. The driver of the vehicle behind Smith agreed with Smith’s testimony in this regard. Smith’s counsel also noted that the investigating officer interviewed Kurpiewski but not Smith.

The hiring and retention claims were based on alleged violations of Federal Motor Carrier Safety Regulations, such as Kurpiewski failing to drug-test himself, failing to keep required maintenance records a_bout the truck and failing maintain a required driver qualification file on himself.

The defense argued that the accident was Smith’s fault. Kurpiewski approached the bridge behind an 18-wheeler, he said. He waited until that truck had crossed the bridge and the dust from it had cleared, and no one was waiting.to cross on the other side. Kurpiewski said he started to cross the bridge, when suddenly Smith came speeding onto the bridge, through a cloud of dust raised by Smith’s vehicle and which obscured both parties’ view: (Smith contended that he had started from a standstill and was going only 10 mph to 15 mph. The speed limit was 25 mph.)

Also, the defense argued that the impact occurred after Kurpiewski had crossed almost the entire bridge, based in part on photos showing the positions of the vehicles after the accident. (Plaintiff’s counsel argued that the impact occurred closer to the middle of the bridge, and that the loaded 18-wheeler pushed the pickup backward.)

Kurpiewski testified through a Polish interpreter.

INJURIES/DAMAGES: arthrotomy; debridement; fusion, lumbar; hardware implanted; herniated disc at L4-5; herniated disc at LS-Sl; knee; pins/rods/screws; unconsciousness

Smith was taken by helicopter to a hospital in San Antonio, where he was admitted for two days. His main injuries were disc disruption and herniation at 14-5 and 15-Sl and, to a lesser extent, a traumatic right knee arthrotomy. The impact knocked him unconscious, and the pickup was totaled.

During his initial hospital stay, he underwent irrigation, debridement and repair of the knee injury. He used a cane thereafter for a time.

On Sept. 21, 2016, he underwent a posterior fusion at 14-5 and 15-S1, including placement of pedicle screws on the left at 14, 15 and S1 and harvesting of autologous bone from the left iliac crest. The surgeon felt that Smith might need surgery for adjacent segment disease.

After recovering from his knee injury; he was able to work, albeit in a temporary office job. After his back surgery, he was able to return to manual labor.

Smith sought past medical bills of about $300,000 and past lost earning capacity of about $111,000. He also sought future medical bills, as well as past and future physical pain, mental anguish, physical impairment and disfigurement.

The defendants’ policy limit was $1 million.

RESULT: The case went to mediation on Dec. 9, 2016, prior to the experts’ depositions and with a first trial setting of April 17, 2017.

The case settled in mediation for $550,000.

Insurer(s): National Liability & Fire Insurance Co./ National Indemnity Co. for both defendants

Plaintiff Expert(s): Charles Gordon, M.D., neurosurgery, Tyler, TX (treating surgeon), Pete Sullivan, trucking industry,
Houston, TX

Defense Expert(s): Frank K. Kuwamura, M.D., orthopedic surgery, San Antonio, TX , Brent Munyon; accident reconstruction, College Station, TX

DRIVER OF 18-WHEELER MADE LEFT TURN IN FRONT OF PLAINTIFF’S PICKUP

Plaintiff Attorney(s): Daryl L. Derryberry, Derryberry Zips Lawhorn, P.L.L.C., Tyler, TX

Defense Attorney(s): George C. “Bubba” Burns, Adami, Shuffield, Scheihing & Burns, San Antonio, TX

Facts & Allegations: On May 18, 2014, plaintiff Lisa M. Brewer, 52, an employee in accounts payable for an oilfield services company, was driving north on State Highway 80 in Luling. She was in a 2005 Chevrolet 1500 pickup. Gerardo Sandoval was southbound in a 2007 Freightliner 18-wheeler owned by Downing Transportation Inc. Sandoval suddenly and unexpectedly attempted a left turn in front of Brewer, and the vehicles collided. Sandoval was cited for failing to yield the right of way in connection with the wreck. Brewer was not issued any citations. Brewer claimed multiple injuries.

Sandoval’s employer was Downing or a related company, G&D Trucking Inc., or both, and he was driving the truck in the course and scope of his employment.

Brewer sued Sandoval for failure to yield the right of way and making an unsafe left turn. She sued Downing and G&D on a theory of respondeat superior.

The electronic control module download from Brewer’s vehicle showed that she was traveling at an appropriate speed at the time of the wreck.

A settlement conference was held, at which the defense did not contest liability.

Injuries/Damages: arm; back and neck; epidural injections; headaches; herniated disc at CS-6; herniated disc at C6-7; herniated disc at L4-5; herniated disc at LS-S1; lower back; physical therapy; shoulder; steroid injection

Brewer was taken by ambulance to an emergency room in Austin. She claimed herniated discs at CS-6, C6-7, L4-5 and L5-Sl, as well as headaches and shoulder and arm pain.

The plaintiff started physical therapy, but it was painful, and her pain management doctor told her to stop. She underwent a series of epidural steroid injections, followed by lumbar and cervical MR.Is. Her pain management doctor referred her for a surgical consultation with a neurosurgeon. The neurosurgeon, who testified for Brewer, recommended an anterior cervical discectomy and cage interbody fusion with allograft and anterior plating at CS-6 and C6-7.

She earned about $16.50 an hour at the time of the accident. She claimed that the pain prevented her from working full time. She eventually began working part time from home.

Brewer’s paid medical bills were $116,478.73. She also sought about $100,000 as the cost of the surgery recommended by her neurosurgeon. She also sought damages for past and future loss of earning capacity, loss of household services, physical pain and mental anguish1 disfigurement and physical impairment.

At the settlement conference, the defendants contended that Brewer was not likely to undergo the recommended surgery. They also argued that the claimed economic damages were exorbitant and not justified by the evidence that had been developed thus far.

Result: The parties settled for $550,000 at the settlement conference. The policy limit was $1 million.

On May 13, about a month after the settlement, Brewer’s treating neurosurgeon performed the surgery he recommended.

Insurer(s): Carolina Casualty Insurance Co. for all defendants

Plaintiff Expert(s): Karl Swann, M.D., neurosurgery, San Antonio, TX (treater); John Swiger, Ph.D., economics, San Antonio, TX

Defense Expert(s): None Reported

Editor’s Note: This report is based on information that was provided by plaintiff’s and defense counsel.

DOCTOR TESTIFIED DRIVER WILL NEED DISCECTOMY AND FUSION

Plaintiff Attorney(s): Daryl L. Derryberry (lead), Derryberry Zips Lawhorn PLLC, Tyler, TX, Craig D. Zips, Derryberry Zips Lawhorn PLLC, Tyler, TX

Defense Attorney(s): Vincent Glocksien, Law Offices of Scott A. Seelhoff, Houston, TX

Facts & Allegations: On Feb. 11, 2015, plaintiff Dave May was driving a Hummer in heavy traffic on northbound Interstate 35 East a little before where it diverges from Interstate 30. Traffic ahead of him stopped, and May came to a stop in the far left lane. Billy Don Gilbreath rear-ended him in a 2005 Chevrolet Kodiak 6500 box truck, which he was driving in the course and scope of his employment with Environmental Logistics Corporation LLC. Police were not called and did not investigate. May claimed a neck injury.

May sued Gilbreath and Environmental Logistics for negligently failing to keep a proper lookout, failing to control his speed, driving too fast, following too closely and failing to brake or turn in time to avoid the collision. May also alleged negligent training, negligent supervision and negligent entrustment against Environmental Logistics.

May said he had been in the far left lane for some time and that he came to a normal stop before the accident.

The defense denied the allegations. It contended that May cut off Gilbreath and slammed on his brakes, and that May alone caused the accident.

Plaintiff’s counsel countered that, in text messages from the scene and in conversations the same day with his supervisor and brother, Gilbreath did not mention May cutting him off and slamming on his brakes. If Gilbreath did make such statements, Gilbreath’s supervisor and brother did not make a record of them, and he acknowledged that he was the person charged with investigating the accident for the company and that the information would have been important.

INJURIES/DAMAGES: epidural injections; herniated disc at C6-7; neck; rhizotomy; steroid injection

May claimed that the accident caused a herniated disc at C6-7.

May performed home exercises and underwent an epidural steroid injection and; rhizotomy.

His treating doctor, an orthopedic spine surgeon, testified that May would need an anterior cervical discectomy and fusion at C6-7, as well as surgery at an adjacent level for adjacent segment disease within 10 to 12 years, and that the two surgeries would cost $225,000 each.

May sought about $85,000 for past medical bills and about $450,000 for future medical bills. He also sought past and future physical pain and mental anguish, physical impairment and disfigurement.

His vehicle sustained more than $11,000 in damage. The Gilbreath vehicle also sustained significant damage, including crush damage to the front bumper and a dent in the air conditioning compressor, which was behind the bumper.

The defense disputed causation of the herniated disc. The impact was only a “tap,” the defense argued; otherwise, May would have called police to report the accident. Also, the defense expert, a neurosurgeon, opined that the claimed future medical bills were excessive and unreasonable.

RESULT: The case settled in mediation for $450,000. The defendants’ policy limit was $1 million.

Insurer(s): Hartford Insurance Group for both defendants

Plaintiff Expert(s): Brian Reece, M.D., orthopedic surgery, Frisco, TX (treater)

Defense Expert(s): Gary Hutchison, M.D., neurosurgery, Dallas. TX (reviewed records)

VEHICLES COLLIDE WHILE DEFENDANT WAS PASSING ON RIGHT

Plaintiff Attorney(s): Daryl L. Derryberry, Derryberry Zips Lawhorn PLLC, Tyler, TX

Defense Attorney(s): Margaret M. Knott, Knott & Doyle, Dallas, TX

Facts & Allegations: On Aug. 27, 2010, plaintiff Rhonda Butcher, 52, an inventory specialist, claimed that she was turning into her employer’s parking lot from a two-lane road in Tyler. Austin Gray, in a Ford F-350 pickup truck, attempted to pass her on the right, and they collided. Butcher was in a mid-size sedan. Gray was in the course and scope of his employment with LCR-M L.P. He received a ticket for passing unsafely on the right and did not contest the ticket.

Butcher sued Gray for passing unsafely on the right and sued LCR-M under respondeat superior. Butcher claimed that Gray actually entered the parking lot to pass her and that the impact occurred in the parking lot.

The defense contended that Butcher was stopped in the middle of the road without her turn signal on. Defense counsel argued that Gray did not enter the parking lot and that the accident occurred in the road.

Plaintiff’s counsel argued that Gray and the LCR-M corporate representative acknowledged on cross-examination. that Gray was negligent. Defense counsel argued that the witnesses made no such acknowledgment.

Injuries/Damages: fusion, lumbar; lower back; lumbar disc, damage (non-herniation}; physical therapy

Butcher went to the emergency room later that night and again the next morning. She claimed an internal disc disruption at L4-5. She tried physical therapy, but said it did not help. She underwent pain management with injections and then, on April 16, 2013, an anterior lumbar fusion and posterolateral lumbar fusion at L3-4 and L4-5. The treating neurosurgeon testified that Butcher would need an additional surgery in the  future, either above or below the level of the existing fusion.

The plaintiff’s paid medical bills were about $90,000. She also claimed past and future loss of household services, past and future loss of earning capacity, past and future disfigurement, past and future physical impairment, and past and future physical pain and mental anguish.

Butcher had been working full time and making $13 an hour. The Social Security Administration declared her completely disabled as a result of the wreck.

The defense contended that the impact was minor and that it could not have proximately caused Butcher’s internal disc disruption. Vehicle photos showed little to no damage.

The defense also contended that Butcher’s lower back problems were related to injuries sustained in a rollover accident around 1989. In that accident, she sustained compression fractures at L3 and L4, and the defense argued that this injury necessitated her surgery.

The defense further argued that Butcher’s lower back pain had existed since at least 2005 and that she was taking narcotic pain medication for eight months before the Gray wreck. The defense further argued that Butcher’s earnings history was insufficient to support her claim for future lost earning capacity. In addition, the defense disputed the need for any future surgery or other future treatment.

Also, the defense noted, Butcher’s workers’ compensation carrier determined that the plaintiff’s lower back injury was a pre-existing injury related to the 1989 rollover and not related to the Gray collision.

There were multiple layers of insurance coverage, with very high limits (exact amount unavailable).

Result: Case settled in mediation for $400,000 on July 24, 2013, about two months before the trial setting.

Insurer(s): Chubb for both defendants

Plaintiff Expert(s): Joe Gonzalez, M.D., life care planning, San Antonio, TX; Charles Gordon, M.D., neurosurgery,

Tyler, TX (treater); Carl E. Hansen, Ed.D., vocational rehabilitation, Austin, TX; Thomas Mayor, Ph.D., economics,

Houston, TX; John Smith, P.E., biomechanical

Defense Expert(s): David Gushue, Ph.D., biomechanical, Penns Park, PA; Marvin Van Hal, M.D., orthopedic surgery, Hurst, TX

Editor’s Note: This report is based on information that was provided by plaintiff’s counsel and defense counsel.