Carpenter & Zuckerman, LLP

$17 Million Settlement Said To Be The Largest Thus Far in California in 2010June 292010

nicholas rowley2 $17 Million Settlement Said To Be The Largest Thus Far in California in 2010

Partner Nicholas C. Rowley is known throughout the country for his multi-million dollar jury verdicts and settlements. Nick’s tireless commitment to justice has proven itself once again, resulting in a $17,000,000 settlement for a traumatic brain injury. This is thought to be the largest settlement so far in California this year. In the below paragraphs, Nick shares the details of how his philosophy, “Truth and Love”, were the key to justice through settlement in this traumatic brain injury case.

Lead Counsel: Nicholas C. Rowley of Carpenter, Zuckerman & Rowley, LLP and Trial Lawyers for Justice.  Nick was recently lead trial counsel in a traumatic brain injury case in Kern County California which resulted in a record jury verdict of $31,600,000.

Co Counsel: Jeffrey Greenman, Alejandro Blanco, and Finlay Boag of Trial Lawyers for Justice.

Focus Group Consultant: Ed Semansky.

Mediation Video: by Patrick Logan patrick@buckyboy.com

Mediator: Peter Searle, Judicate West, Santa Ana, California.

Defense Counsel: Gary Ottoson

Insurer: Travelers Insurance Company, Claudia Tiger

Plaintiffs Experts: Lewis Barbe, safety engineer, Lester Zackler, M.D. neuropsychiatrist, Jeffrey Schaeffer, PhD neuropsychologist, Ronald Fisk, M.D. neurologist, Charles Furst, PhD neuropsychologist, Barry Pressman, M.D., neuroradiologist, Frank Moser, M.D., neuroradiologist, David Fish, M.D., Physiatry.

Defense Experts : Barry Ludwig, M.D., Neurologist UCLA and Dean Dellis, PhD neuropsychologist University of San Diego.

Facts

In July 2008 Mrs. Greer was staying in a California Hotel, having traveled for business. She responsibly had a few drinks in the hotel bar and went up to her room. It was a nice evening so she opened the sliding glass door. On the other side of the door is a balcony railing. She leaned on the railing and it gave way. She fell four stories. She was in and out of consciousness when the ambulance arrived, suffering multiple fractures and a moderate traumatic brain injury. She was hospitalized at Cedars Sinai, her husband Wayne flew out from Toronto not knowing whether she was dead or alive. Miraculously, she not only survived but recovered to the point of being off pain medication, and being able to walk and talk and drive and she appears to anybody who did not know her, to not be injured at all. Her recovery is a miracle and that was the defense. Plaintiff and defense neuropsychological testing showed mild deficits and a miraculous recovery. SO, why would a jury, in this economy, give a significant verdict to a person who looks so normal? Furthermore, the medical bills were paid by the Canadian Healthcare System and reduced to around $300K. What would the value be for such a “case”. It was the Plaintiff’s team that came together and developed the story which showed the insurer why going to trial was a substantial risk. The contribution was equal by each Jeff Greenman, Nick Rowley, Finlay Boag and the rest of the team. Also, it is important to honor the defense lawyer in this case Gary Ottoson and the Insurance Representative Claudia Tiger who were and are hard working fair human beings who worked very hard to do what was right and who took the time to listen to the story and see beyond the standard criteria that are customarily used value a case.

Words cannot describe how helpful and understanding the Mediator Peter Searle was.

Developing The Story

Brain injury can be hard to understand by looking at neuropsych tests and medical bills. You can have a case that has $50K in medical bills but which can be worth so much more. Jeff Greenman, a brand new lawyer and new lawyer to the firm, who had never done a trial, brought in the case by referral from a friend. Jeff was new, young, and unspoiled, very nervous and inexperienced but full of energy and passion. While many lawyers would not entrust such a potentially significant case to a young lawyer, in other words would let him bring the case in the door and put him behind the scenes, Jeff was told to handle this case as if you are going to try it yourself and there is no better way to learn how to be a lawyer than with a good case. I told Jeff what I was told “treat your clients as your family”. I told Jeff that this was an opportunity to show what us young lawyers can do and an opportunity to really change lives”, “This is what you became a lawyer for, to help people during the worst of times, follow your heart and dive right in”. I saw myself in Jeff, it was not long ago that I was a young kid who did not have trials and record wins under my belt. I am saying all of this because I hope this case sets a model for others fighting this battle, and to spread what my mentors have taught me which is : “Jeff, spend time with these clients, fall in love with them, make it real, don’t think about experience, just be yourself, don’t think about money, be there as a friend and not as a left brain lawyer”. “Someday we’ll have to figure out what this case is worth and in order to do that we must live and breathe it side by side with them.” Jeff did just that, and shed his law school teachings of “don’t get personally involved, stay objective….. etc.” Jeff spent day after day with in the hospital with the clients, Mr. and Mrs. Greer. Jeff became part of Mr. and Mrs. Greer’s recovery, part of their life, understanding everything they went through. He held her hand as she took her first steps in the hospital. He was often side by side with Wayne late hours of the night at the hospital. Mrs. Greer was a fighter, marathon runner, outgoing, full of life and energy, and she was committed to her recovery. Her husband quit his business and became her full time coach. We made the choice to file the case immediately. No demands, no bologna, just get right into the fight. Almost immediately, the Canadian Healthcare System wanted Mrs. Greer back to a more affordable place than Cedars. They pushed to get her transferred, and pretty quickly Mrs. Greer’s care was transitioned to Canada. This presented a problem, number one with special damages, and number two because the socialized medicine system has it’s limitations. It became obvious that Mrs. Greer was going to end up not having a the recovery she hoped for. And, the early records were not helpful, it was obvious that the medical providers were directing the “diagnosis and prognosis” to throwing Mrs. Greer back into society without a full recovery. Instead of letting this happen and then later coming back with a more permanently damaged plaintiff “possibly increasing the value of the case as some might think, the money was spent to get a team put together to help Mrs. Greer achieve the maximum recovery possible.” This is where the Plaintiffs experts got involved and it was a risk because of the standard defense of “Attorney Directed Medicine”. Furthermore, each of the experts had worked on similar cases with me, Nick Rowley before, and there was the risk that the defense would try to make it ugly. We went with what was right for Mrs. Greer. And, the reality is that each of these are people I trust. People I trust to tell me when I am wrong and people who would do what is best for the patient. I was comfortable standing in front of a jury and telling them that the reason why I hired the experts was because I know them to each be hardworking human beings that shoot straight and who I would choose as my doctors if I ever needed the best for my family or me. Also, I always explain how proud I am of what they have done for other people who are hurt and being tossed to the curb. We handled this case, every step of the way, as if we would be standing in front of a jury. All experts were asked to act as treating medical providers and to work with the Canadian Health Care providers to develop a plan to get Mrs. Greer as better as possible. We did not want the defense to be able to say, nor did we want the dishonesty within us of making the case look worse and the recovery process futile, we wanted to make sure we did everything possible to get Mrs. Greer better. The arguable problem is that it actually worked! That was okay though, it is what we wanted, we personally feel and know that juries love heroes, those who persevere, who overcome obstacles. Jurors do not connect with the “mommy mommy story” anymore, that is a mistake that many lawyers make, which is “look how bad this is, look how ugly this is, please help me”. We take the approach that finding the beauty and the strength and the perseverance is much more persuasive. Jeff and I spent time with Mrs. and Mrs. Greer at their home in Canada, in taking drives and weekend vacations with them in California, going to medical appointments, therapy sessions, being part of team meetings with medical providers. We took the position from day one that we would not mediate the case and were going to settle. To give it a shot, we made a demand for $27M and sent a very detailed letter setting the scene and telling an actual story (wrote a short novel) with photographs and exhibits about 9 months ago, we sent this to the head of claims, the board of directors, and told the story of Mr. and Mrs. Greer’s lives and how the injuries were permanent. The Insurer did not respond.

We were informed not only by the defense but also people we know that we were crazy, as our Plaintiff looked perfect and was recovered. We knew there would be a dispute in liability and that we were out of our mind in terms of the value of the case. Finlay Boag, a lawyer partner and fellow trial lawyer and jury consultant, got involved with the case. The defense noticed Mrs. Greer’s deposition and the fear set in that she would present as being normal. Finlay, Alejandro, and Ed Semansky worked to discover the human story and prepare the clients for their depositions for 4 full days. Finlay and I represented both Plaintiffs at the depositions and the story was told. We explained to defense counsel how Finlay and I would be representing one of the Plaintiffs at trial with separate voir dire, openings, and closings. Finlay, whose wife has been very ill for many years, was able to relate to Wayne, he was going to ask for over $10,000,000 on the loss of consortium and explained how it would be a record result and devastating for the defense. Something sweet to mention is how Mrs. Greer kissed one of Finlay’s gray hairs on the top of his head telling him how she is happy to have Grey hair as part of her team (in other words pointing out that there is somebody who has been around longer than Jeff and I). Bringing Finlay on board very important to get Wayne his own representation and to bring comfort to the clients because at the end of the day Jeff and I look very young. Gary Ottoson and Claudia Tiger were present at the depos. Mr. Ottoson was so kind and understanding and at the end of the deposition we were asked to mediate. This is when I sat down with the “money decisionmaker Mrs. Tiger” and explained nicely how we would not mediate without a $10M offer. This was unheard of I was told by many. I believe I was told by the defense that they had never done that but would “communicate it” and get back to me. I explained how the settlement train would leave the station very soon and I meant it. Trial was set for September and we refused to mediate past May.

We set a mediation date for June 1st with the understanding that it would be taken off calendar if the $10M offer was not made and with the understanding that it was just an opening bid. Finlay hired Patrick Logan and they flew up to Toronto and traveled throughout California and did videotaped interviews of family members, experts, medical providers. What was put together was our entire case in a one hour fifteen minute video. I watched the video and decided I did not want it in the defense’s hands to scrutinize and would take the approach of showing it only to the insurance company representative (money decision maker) alone in the room. We sent the video to Peter Searle in advance and made a 998 statutory offer for $19,999,999 for Mrs. Greer and $3,000,000 for Mr. Greer. The $10M was offered by the Insurer 10 days before mediation when I called to take it off calendar and we agreed to extend our statutory offers through mediation day June 1st.

At mediation I spent many hours, approximately 6 hours alone in a room, one on one with Claudia Tiger. I did not want the defense lawyers hearing my opening statement and plans. Gary Ottoson had ordered transcripts of entire trials on cases I have tried and was studying me. He is a worthy opponent and I was working hard to do something which he could not calculate.

In the room with Mrs. Tiger, I started out by explaining how I did not like mediations because it is a process based on people lying to each other and how I would take a risk to be brutally honest if she would do the same. We worked together politely, watching the video and working together very hard to come up with a resolution. We agreed to keep everything in the room said between us private. This was as a result of having worked with my dear friend and mentor Joey Low the day before on how to approach the mediation and I give him credit for helping me get to a place within myself where I could do what was best for my clients. Joey spent 4 hours with me the day before preparing and he hates mediations as much as I do. Thanks to Joey I was able to connect and talk openly with Ms. Tiger, a person whose job it is to beat us down into taking the least amount possible. She did her job by saving her clients a lot of money I believe, and was ablet to do so because she connected and ended up working for Mr. and Mrs. Greer and convincing others to get the case resolved. Whether she is this way all the time or not I do not know, but what I experienced was a hardworking caring human being who worked hard for two people who deserved justice. Mrs. Tiger and I both expressed our fears and how we felt about the case, how we felt about frivolous lawsuits and frivolous defenses. Although we are on opposite sides of this war we fight, we were both honest and straightforward, with no game playing, we found a common ground of humanity. It is weird to even say that but it is the truth. The honesty and humanity between us and everybody else involved is how the case settled. Had we postured and let our egos speak we would have never resolved the case. The maximum authority she had brought was what I had expected, and was not anywhere near resolving the case. They wanted a second session of the mediation but I refused. After she watched the video Pat and Finlay put together phone conferences were held and we worked until 10 p.m. I saw her react as a person to the video and she was touched. There was a lot of nodding of the head and I even saw her care, maybe even tear up. Peter Searle was in and out directing us and keeping us on track. He talked sense into both of us and was the best mediator I have ever experienced. I actually dislike the whole process but this time we agreed we would do it based on honesty and no b.s. The issue of high-low was proposed and I took the position that I would prefer that and go to trial but that the low would be payable immediately as an undisputed amount, since it is a guarantee, and undisputed, under the Insurance Code it is due immediately. This was something I learned from my partner Alejandro Blanco who was also instrumental in the case and who mentors me on every case I am on.

Jeff stayed with the clients who we kept out of sight from the defense. We refused to bring them into the mediation offices until we had resolved the case. Jeff, the clients, and Irene Calderon (the structured settlement consultant we chose) worked on numbers throughout the day so that Mr. and Mrs. Greer could plan their life. At the end of the day it was worked out.

The case resolved for $17,000,000 at 10 p.m. We started at 9:30 a.m. and did not break for lunch.

Handling Damages

We did not do a mediation brief. The video is what we sent to the mediator and we had already sent our very long demand months before. I explained how the issue of case value is what based on what the equal trade dollar value is (ET$V) of each and every separate item of life that was negligently taken away, that is “reasonable compensation”. Reasonable compensation is not anything less than ET$V. Anything less than Full ET$V is an injustice. We refused to go back and forth with the defense arguing about the life care plan which in present value totaled $3M but which was of course disputed by the defense. We focused on non-economic harms, on the permanent difference in the lives of two beautiful people. I was able to tell stories about Mr. and Mrs. Greer because we had lived and breathed with them and loved them as family. Throughout the day I politely and lovingly demonstrated some of my opening statement on damages, and what was most persuasive was something I learned from my friend and mentor Jude Basile involving a briefcase full of money and my ET$V formula on non-economic damages intertwined with stories about Mr. and Mrs. Greer. ET$V was the focus and I intertwined it with the jury instructions and explained how the case was worth much more than we were willing to settle for and why a jury would give it to us. I refused to allow the defense to bring a structured settlement person and told them that if they did or presented any structured offers to my clients that we would leave. I told them this in advance.

Conclusion

I was ready to try the case, wanted to try the case. I was to represent Mrs. Greer and Finlay was going to represent Mr. Greer on the loss of consortium. We were all committed. Sometimes there is justice in settlement.

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