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Accident-prone plaintiff gets $164K for fourth collision

Minnesota Lawyer
February 2000

Can a plaintiff who has had three prior automobile accidents recover a significant amount for injuries sustained in a fourth accident?

Minneapolis attorney Paul E. Godlewski took on such a case — and a Hennepin County jury awarded his client $164,000. (The net verdict was $134,000 after $30,000 was offset for no-fault benefits paid.)

In addition to the four car accidents, Godlewski’s accident-prone client also suffered an electric shock as a youth, had a snowmobile accident and suffered several other prior injuries.

Godlewski was able to overcome the plaintiff’s medical history full of prior (and arguably pre-existing) injuries with the help of expert testimony and lay witnesses who testified about the plaintiff’s condition before and after the accident at issue. The plaintiff’s physicians and co-workers told the jury that he had completely recovered from his earlier injuries — and that the pain he currently suffered resulted from the latest automobile accident.

Godlewski told Minnesota Lawyer that the jury found his client, who suffers discomfort and pain every day, to be believable and likeable — especially because the defendant seemed unrepentant regarding the injury he had caused.

“No one could predict this result,” Godlewski acknowledged. “But this was a quality plaintiff. I’m happy for him.”

Darren D. Marti was a 19-year-old who worked as a full-time carpenter after graduating from high school. Although he was involved in three automobile accidents and a snowmobile accident, and suffered an electric shock as well as several other injuries, Marti fully recovered from each injury — and never filed a lawsuit relating to any of them. Marti regularly worked 10- to 12-hour days without restrictions of his movement and without complaining of pain.

On Jan. 18, 1998, another driver failed to obey a yield sign and broadsided Marti, who had the right of way, on a street in Alexandria, Minn. The first impact caused Marti’s truck to spin into the opposite lane, where the truck collided with an oncoming vehicle. The two impacts caused substantial damage to Marti’s pickup truck.

At first Marti thought his injuries would subside, but the pain became intense. Although he received treatment from his doctor who had been his chiropractor for almost a decade, the pain continued. He also received treatment from a neurologist and an orthopedic specialist — and was finally referred to a “work-hardening program” in Alexandria.

The work-hardening program attempted to help Marti deal with his pain through physical therapy designed to train his body to use correct mechanics while performing the motions he would use on the job. However, the work-hardening program released him and recommended that he not return to work as a carpenter because the motions were causing him too much pain.

Eventually, Marti was referred to the Abbott Northwestern/Sister Kenny Pain Clinic — the last recourse for someone who cannot find relief from conventional treatments. Rather than relieving pain, the clinic teaches patients ways to cope with chronic discomfort.

About a year after the accident, Marti re-entered the workforce. Since he could not continue in his chosen profession of carpentry, Marti took a job as a dispatcher at his father’s trucking business.

The decision to sue

Marti suffered substantial damages as a result of the January 1998 collision. The two impacts caused damages to his pickup truck in excess of $9,000, and Marti’s medical bills were over $22,000. Marti also lost wages because he couldn’t return to work for some time after the accident. In addition, once he did return to work, it was as a dispatcher — not his chosen profession and less financially rewarding.

Marti sued the other driver and, because the driver was uninsured, also sought payment from his own uninsured motorist carrier, Illinois Farmers Insurance Company.

Godlewski said that after a demand for $45,000 was met with an offer of $17,500, his client decided not to negotiate a settlement and instead pushed ahead to trial.

According to Godlewski, the insurance adjuster grossly undervalued the case, and he found it unlikely that fair and meaningful negotiations could take place.

“The adjuster did not recognize the upside potential of this case,” observed Godlewski.

Godlewski noted that insurance adjusters sometimes underevaluate cases because they lump them all into the same category and fail to factor in the quality of the plaintiff in the case currently before them. A believable, presentable plaintiff who is sincere and credible on his own behalf is likely to convince a jury that his injuries are severe and should be compensated, said Godlewski.

Godlewski added that some insurance adjusters with whom he has worked make low offers with little apprehension about going to trial because they erroneously believe that jurors distrust chiropractic care.

“I’m not finding that bias in jury pools,” he observed. “Jurors or their family members have treated with a chiropractor. That bias is not necessarily there.”

The trial

After a four-day trial, a Hennepin County jury awarded Marti $164,000, less $30,000 offset for no-fault benefits paid. Godlewski said that his client would have settled for less money, but that the insurance adjuster’s unreasonably low offer gave Marti the opportunity for a large jury award.

The defendant driver denied wrongdoing, and tried to shift blame to Marti, said Godlewski. Godlewski proved liability with the aid of a blown-up photo of the intersection that showed that the defendant had a yield sign. The jury awarded Marti $9,000 for the damage to his truck.

But the property damage was the easy part — the medical expenses, pain and suffering, and wage loss claims would be more difficult, especially because of Marti’s extensive medical history.

As could be expected, the defense took the position that Marti’s injuries were caused by his earlier accidents, and did not result from the January 1998 collision.

According to Godlewski, Marti, his co-workers and his doctors convinced the jury that he had fully recovered from each of his previous injuries. They testified that prior to the January 1998 collision, Marti was not undergoing treatment for these injuries and was able to work long hours lifting and moving heavy objects without discomfort and without restrictions.

“Before and after” witnesses are essential, said Godlewski. “Even though they are lay witnesses, they have lots to say.” Marti’s co-workers testified that Marti worked 10 to 12 hours a day without complaining of pain up to and including the day of the accident. But after the accident, they testified, Marti was unable to perform his job.

Some of the most persuasive testimony came from Marti’s chiropractor, who had been treating him for almost a decade. According to Godlewski, juries are often more trusting of a physician who knew the plaintiff before the accident in question than they are of a “hired gun” who has only treated the plaintiff for the purposes of litigation.

Marti had an asymptomatic defect in his spine, which his chiropractor had monitored in a series of X-rays over several years. The night before trial, Godlewski and the chiropractor selected some “milestones” from this series to show that while Marti had a pre-existing defect, it did not cause him problems until the January 1998 accident.

Ironically, this testimony was not controverted but rather strengthened by the testimony of the defendant’s independent medical examiner (IME), according to Godlewski. The IME initially testified that in his opinion Marti was under no restrictions as a result of the accident in question. However, under cross-examination the IME acknowledged that it was also his opinion that Marti suffered no restrictions prior to the accident in question.

Even so, the IME ultimately agreed that the medical treatment Marti received was necessary — including the pain clinic. Godlewski said he was surprised because the defense almost always contests medical bills from pain clinics.

“It’s psychologically based — are you in pain or not?” explained Godlewski. There isn’t a lot of objective basis for the treatment, but the IME still found that in Marti’s case it was the only viable option, he added.

After the IME acknowledged that all of Marti’s medical treatments were necessary to his recovery, the insurance company didn’t have much of a defense on the issue of medical expenses, said Godlewski. The jurors awarded Marti $22,000 for past health care expenses because they were convinced that Marti was in pain, and believed that any attempt to ease the pain was necessary, Godlewski stated.

The jury also awarded Marti $40,000 for past pain, disability and emotional distress — as well as $13,000 for past lost wages.

Godlewski argued that Marti’s earning capacity was diminished as a result of the accident, and the jury awarded him $18,000 for lost earning capacity. The jury understood that Marti was not exaggerating the extent of his injuries and also awarded him $45,000 for future pain, disability, and emotional distress, as well as $26,000 for future health care expenses, according to Godlewski.

Godlewski observed that the jury found Marti to be credible and compensated him accordingly. Marti is not a whiner or complainer, and did not express bitterness toward the defendant, said Godlewski. Instead, he was focused on recovery and seeking out alternative career choices, he added.