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Quadriplegic gets $400K for new injuries

Minnesota Lawyer
August 2010

By Michelle Lore

Minneapolis personal injury attorney James Schwebel recently recovered $400,000 for a quadriplegic client who was further injured when his wheelchair drove over uneven cement outside a restaurant.
 
Case illustrates complexities in representing clients with pre-existing conditions
For 32 years, Gerald Repinski was limited in his physical movement to being able to raise his left arm enough to pick up eating utensils and reposition himself in his wheelchair. When he lost the ability to do that, it was devastating.  Repinski, 51, has been a quadriplegic since a motor vehicle crash in 1978. In February 2009, he was operating his motorized wheelchair on the sidewalk leading up to the entrance of the Acapulco Restaurant in Maplewood. Frost heaving had caused a separation in the sidewalk blocks of 2 to 3 inches.  As Repinski drove his wheelchair over the drop off he experienced significant neck pain. He and his wife continued into the restaurant and had dinner, but the following morning he went to the hospital for evaluation. The limited use he had of his left hand was further impaired. Ultimately, he required a cervical fusion of C5-C7.  Minneapolis personal injury attorney James Schwebel agreed to take the case against the restaurant, contending that it was liable for Repinski’s injury due to its failure to properly maintain the sidewalk. The matter settled late last month for $400,000.  The case illustrates the complex issues that go along with representing clients with severe disabilities or prior injuries.  “The typical plaintiffs’ lawyer, when they are confronted with somebody who has a profound pre-existing injury or disability or seven prior accidents, may think ‘Oh oh, I don’t want to get into this. There’s going to be mountains of prior records and hours of cross-examination,’” said Schwebel. “In fact, when you look at somebody who does have a profound disability and then is faced with another accident, that case can be very compelling to a jury.”  Duluth personal injury attorney Stephanie Ball agreed.  “If a person has a genuine disability and on top of that a real injury, a person evaluating it - whether it’s an insurance company or a jury - will attach a greater sense of unfairness and more harm [to that person],” she said. “I think juries do value those cases differently.”
 
Minor incident
The Repinski case wasn’t an easy one - for the plaintiff or the defense.  Schwebel acknowledged that demonstrating that such a minor physical force was enough to cause injury, and that it did in fact cause injury, was an uphill battle.  Minneapolis attorney Jeffrey Muszynski, who along with Brian Wood represented the restaurant, said the defense also contended - although it didn’t have the medical records to back it up entirely - that the plaintiff’s condition was deteriorating and he would have ended up with the same limitations even absent the minor jarring that occurred outside the restaurant.  Schwebel recognized the difficulty in overcoming the argument, but was undaunted.  “The jury [was also] going to hear our experts say that what occurred was over and above what would have naturally transpired,” he said.
 
Appreciating the injury
Practitioners say that a challenge in these cases is getting a jury to appreciate the magnitude of the injury to a particular plaintiff.  Minneapolis personal injury attorney Mark Streed last year settled a case involving a 21-year-old man who was born with virtually no brain matter. He was cared for by his family most of his life, but his developmental disabilities eventually required placement in a care facility. While he was there, he suffered a fractured skull and almost died after being attacked by a patient with autism.  The defendant care facility admitted liability so the biggest challenge was calculating damages, Streed noted. How do you show the plaintiff’s harm when he can’t speak to you? he questioned. “Some people might say, ‘Big deal, what really is the damage here?’”  Streed explained that all an attorney can do in this situation is show that so much has already been taken away from the person that if what makes their life peaceful and safe is removed as well, it’s a travesty.  Several years ago, Schwebel represented a 93-year-old blind man with Alzheimer’s who was crippled with severe arthritis. He fell off the table during an X-ray procedure and broke his hip.  The defense offered just an $80,000 settlement on the theory that the man was so profoundly disabled before the fall that his damages were limited, Schwebel said. But the jury awarded him $462,000, in large part because he could no longer do the one thing he enjoyed - walk down the street to feed the pigeons.  Similarly, Schwebel was confident that if he could prove that the uneven concrete on the sidewalk caused Repinski’s injuries, the damages would be significant.  A profoundly disabled person - either because they are elderly or a quadriplegic like Repinski - might have just a small percentage of the physical capacity of an able-bodied person, Schwebel said. Taking away just a little bit of that has a profound effect on their enjoyment of life, he said.  “So to me, [the focus] is on the precious amount of physical ability they had and how devastating it is when they lose that,” Schwebel said. “In Jerry’s case he may have had only 1 or 2 percent of the functional ability [of an able-bodied person], so this was … devastating to him.”  Ball added that a plaintiff’s damages will also depend in large part on the testimony of medical providers. There has to be testimony defining the injury and separating out the prior injury from the current injury, she said.  “You have to work with and educate the healthcare provider on the standard of proof necessary to prove your case,” said Ball.  From the defense standpoint, Muszynski said that a challenge in these cases is getting a complete medical history of the plaintiff - something that was lacking in the Repinski case because he had not had much diagnostic testing since he was paralyzed more than 30 years ago.
 
Client matters
Muszynski acknowledged that a severely disabled plaintiff may also be quite sympathetic to a jury.  He noted that it’s always difficult to argue to a jury that a plaintiff is making up or exaggerating his symptoms when that person is sitting there in a wheelchair. But at the same time, it depends on the individual plaintiff and how he presents himself. If the plaintiff has a history of exaggeration or malingering, it would be a much easier case, he said.  Plaintiffs’ lawyers say that like any personal injury matter, a likeable, honest plaintiff is important in these cases.  According to Ball, jurors tend to reward plaintiffs who try to overcome obstacles, such as those who work despite their limitations or care for others despite their own disability.“Those individuals’ claims are valued higher, especially by juries,” she said.  Schwebel concurred. “On the plaintiff’s side, it’s the clients that make the case,” he said. “Jerry Repinski was a very exceptional client and I think everybody appreciated that.”