I am very pleased to announce that Dan Schaar and I tried a case to verdict this week before

Judge Kenneth C. Mennemeier and received a verdict of $2,109,000.00 against a defense offer of 500K.  Costs and interest will add another 200k or so.

The case arose from a Brink’s truck rear ending our client, resulting in two separate cervical disc replacements by Dr. Orisek.  Brinks was represented by Sheldon Warren and Dani Rogers of his office (from LA).  Local defense counsel was Jim Henderson. Apparently, Warren has represented Brinks for a long time.  Call me or Dan if you encounter him, there is a bit of a back story there.

Brinks admitted liability and “causation” of the first surgery but tried to claim the second was the product of degenerative disc disease in our client who was but 28 at the time of the injury.  This included calling the fire captain who wrote the response report and CHP Officer who responded to the scene to testify, in essence, that no occupant of the plaintiff vehicle showed signs of obvious injury or stated that they were injured at the scene. Very non sequitor, given their admission.

One challenge of the case was that our client had no income loss. She was a student at the time of the accident but then became a certified Residential Care Facility for the Elderly (RCFE) and enjoyed a good income.  She completed her school with excellent grades and started nursing only school two weeks ago, limiting her ability to attend her trial. Further, despite my early letter and admonishments to her, she posted a number of photos and videos on a public instagram account.

The defense found them and among other things, showed a video at trial of her happily walking down a stairway in Europe carrying a large Louis Vuitton purse, at the bottom of which she blew a kiss at the camera operator.  She is an attractive woman and from her glamorous, smiling photos could be confused with an instagram influencer.   Dan did an excellent job of reframing.  The defense view was essentially, how can she have chronic pain if she is so successful at school and in her career and looks so happy?

Defense retained Bruce McCormack, MD out of San Francisco.  They tried to use him as an neurosurgeon and a billing expert but we excluded him from testifying re billing with a MIL. Plaintiff’s experts called to trial were Phillip Orisek, surgeon, and April Stallings on billings. Both presented as very impressive witnesses according to the jury.  David Seidenwurm, radiologist was retained, disclosed and deposed by us, but ultimately did not testify as he was on vacation out of the country (trial was up last August, kicked and then trailed last month, making his schedule uncooperative). Several unusual but good things happened with the jury in this trial, which I believe was due to our trial judge,  Kenneth C. Mennemeier.  First, if there was a picture in the dictionary of appropriate and polite judicial demeanor, it would be his.  He is a 2015 appointee.  I believe that he was in charge of the child dependency proceedings until recently which is why he did not seem intimately familiar with the “usual” motions in an injury case.  However, he is very intelligent and a good brief will serve you well.  He will read it.

The unusual things were these.  The judge was so very solicitous of the jurors and their time.  Prior to voir dire he gave an impressive power point and verbal explanation of the process, the importance of jurors in society, etc.  After which, NONE sought to excused for hardship! Throughout the trial his demeanor and treatment of the jurors resonated very positively with them.   Secondly, the education segued nicely into Dan’s voir dire and later, his opening on the same subject.  Lastly, all 12 jurors and one alternate remained after trial to speak with Dan, our client and me.

We won virtually every significant MIL but one, to keep a chiro out who treated the client for an MVA that occurred in June 2020, long after both disc surgeries. The defense tried to use, first his discharge report and then him, to support the claim that any future treatment would be due to this second accident in which, as they characterized it, the client suffered the ‘same injuries.  

Our cross of the chiro blew up in their faces and we were able to integrate that as a key component in the closing. Once excluded as a billing expert, the defense did not call Dr. McCormack.  The jury really liked April Stallings (april@legalrnsolutions.com), so much so that they gave us to the penny what her figures were.  

Dr. Orisek was also loved by the jury, and the judge.  Properly qualified, he is THE expert on this subject.  His skill, knowledge, demeanor and lack of ego was noted by the jury.

I should add that we tripled the award suggested by extensive focus group studies.  All in all, not a bad day!

Kudos to Dan and his awesome team of Eva Silva and their paralegal Jillian Sullivan, who provided invaluable support for us during the trial!

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Richard Antoine

Law Offices of Richard F. Antoine

845 University Avenue

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