Another Win at Trial

Well, I won another case at trial this month (two, actually, but this post only deals with the first trial).  I had a great client and a great jury.  Somewhat complicated knee condition, but the jury was attentive and understood the situation.  Rather than try to explain it all, I will simply post my Trial Memorandum below.  Note that the jury awarded all medical expenses to date, noneconomic damages, and a significant amount of punitive damages for the drunk driving aspect of the case.  Interestingly, the defendant denied that he was drunk, and further denied that he even struck my client (who was calling 911 to report the Defendant’s drunk driving at the time he was hit).

Here is the memo:

COMES NOW the plaintiff, Rocky Evans, by and through his attorney, Tim Williams, hereby submits his Trial Memorandum.

Issues Before the Jury.

This trial involves reckless endangerment and negligence claims stemming from an auto accident in which Defendant was driving drunk and struck Mr. Evans, a pedestrian at the time.  Defendant not only denies liability, but also denies the incident even happened, despite substantial evidence to the contrary.  However, medical experts agree that Mr. Evans suffered an injury as a result of this incident.  Therefore, the issues to be decided by the jury are those of liability and extent of damages, including medical expenses, wage loss, impaired earning capacity and noneconomic damages, as well as punitive damages.

Statement of Facts.

This action arises out of an incident that occurred on April 11, 2008, at Niblick and Greene’s, a tavern at the Eagle Crest Resort in Redmond.  At about 8:45 p.m., Mr. Evans was leaving the establishment when he saw Defendant engaged in a physical altercation with another patron.  Mr. Evans watched Defendant – who has admitted to drinking alcohol before this incident – strike the patron, pushing him into Mr. Evans before falling to the floor.  Defendant then rushed out of the tavern into the parking lot.  Mr. Evans also left the restaurant and walked into the parking lot area.

Defendant thereafter began yelling obscenities as he turned around and approached Mr. Evans, threatening to harm Mr. Evans.  This led to a heated verbal exchange.  Defendant then walked to his minivan, prompting a warning from Mr. Evans that he would call the authorities to make a DUII report if Defendant attempted to drive.  Nonetheless, Defendant got into his van and began to pull out of his parking space, so Mr. Evans pulled out his phone to dial 911.

Mr. Evans walked to the front of Defendant’s van to get the license plate number to report the DUII to the 911 operator.  Defendant then began to drive in short bursts toward Plaintiff, in an apparent attempt to scare him away.  On Defendant’s final lurch forward, his vehicle struck Mr. Evans’ right knee, pinning his leg between the van and a Toyota Prius.  Defendant then tore out of the parking lot at high speed.  Mr. Evans immediately called Deschutes County 911 and reported the hit-and-run to dispatch.

Deschutes County Sheriff’s deputies responded to the scene and, after taking witness statements, tracked Defendant down at his home in Eagle Crest.  After a brief investigation, Defendant was arrested and taken to jail.  Notably, Defendant refused both a field sobriety test, as well as a breathalyzer test at the sheriff’s office.  Defendant was subsequently charged by the Deschutes County District Attorney’s Office with DUII, Recklessly Endangering Another and Refusal to Take a Breath Test in Deschutes County Circuit Court, Case No. MI082434.  On July 27, 2009, Defendant pleaded no contest to the DUII charge and entered into a diversion program which resulted in the charges against him being dismissed.

As a result of this incident, Mr. Evans sustained right knee trauma, and has been diagnosed with a plica injury.  He underwent conservative treatment, including steroid, cortisone and joint-replacement fluid injections as well as physical therapy, before resigning himself to living with knee pain.  Nearly four years after this incident, the pain in his knee causes him to walk in a way witness can only describe as a “hobble.”  Mr. Evans has been advised that he will need surgical intervention in the future to address his injuries.  His treatment thus far has resulted in $8,350.10 in medical expenses.

Because of his injuries, Mr. Evans, who is self employed at his concrete business, was unable to work at times.  In addition, Mr. Evans has had to reduce the amount of work he does and hire help to finish the jobs he continues to take – jobs he was once able to do on his own.  As a result, he has sustained $7,989 in lost wages, primarily for replacement help hired during the first several months following the accident.  Further, because Mr. Evans cannot perform work in the manner he once could, he has had an impairment of his earning capacity.  Current mortality tables give him an additional 43.3 years of life, and Mr. Evans plans to work as long as he is able.  While he is hopeful that a future surgery will cure his injuries, Mr. Evans seeks compensation for his impaired earning capacity in the amount of $50,000.

Retired orthopedic surgeon Dr. Tom Carlsen, who specialized for 26 years in treating injuries to the knee, shoulder and ankle, will testify at trial.   Dr. Carlsen has determined that Mr. Evans’ injuries are permanent, not likely to improve on their own, and will necessitate further treatment, including surgery.  Defendant’s doctor has conditionally opined that Mr. Evans’ accident-related injuries resolved by March 2009, though his only basis for that opinion is that Mr. Evans had stopped frequent medical treatment in March 2009.  Defendant’s doctor further states that Mr. Evans’ current condition could be related to cystic degeneration of the patellar tendon.  Dr. Carlsen will address both of these erroneous opinions at trial.

In addition to the expected pain, anxiety, and frustration caused by his injuries, Mr. Evans also experienced a significant impact on his life.  Once an avid outdoorsman, Mr. Evans can no longer walk the required distances to go hunting or camping in his favorite remote locations.  He has difficulty maneuvering on a boat so fishing from anywhere other than the shore is not really an option for him.  His friends and coworkers describe him as “hobbling around like an old man” at times.  He seeks a reasonable amount for noneconomic damages, not to exceed $75,000.

Mr. Evans is Entitled to Plead and Recover His Billed Medical Bills

The medical bills Mr. Evans has incurred to date for injuries related to the incident total $8,350.10.  A portion of these bills were written off, secondary to his health insurance benefits.  Any write-offs on account of insurance discounts are a collateral source, as Mr. Evans paid the premiums for said insurance coverage.  Mr. Evans is therefore entitled to the benefit of those write-offs, and is thus entitled to an award for the gross amount of medical bills.  ORS 31.580; White v. Jubitz Corp., 219 Or App 62 (2008); Cohens v. McGee, 219 Or App 78 (2008).

Lost Wages and Impaired Earning Capacity

At the time of the collision, Mr. Evans was a self-employed independent contractor and owner of a concrete finishing business.  While he did miss some work and despite his injuries, Mr. Evans has continued working, though not to the extent he did before the accident.  Indeed, he initially had to hire extra help to do the work that he was to do personally.  Evidence will show Mr. Evans had incurred $7,989 in lost wages for replacement workers.

Because of his ongoing pain and symptoms, expert testimony will show Mr. Evans’ income has declined and, barring an unlikely complete recovery from his injuries, will continue to do so.  He therefore seeks up to $50,000 for impaired earning capacity.

Previous Infirm Conditions and Exacerbations are Compensable

If the jury finds that Mr. Evans was predisposed to injury due to his age, body habitus, or pre-existing bodily conditions, he is nonetheless entitled to full compensation for his injuries.  The Prior Infirm Condition jury instruction, UCJI 70.06, states[1]

If you find that Mr. Evans had a bodily condition that predisposed him to be more subject to injury than a person in normal health, nevertheless Defendant would be liable for any and all injuries and damage that may have been suffered by Mr. Evans as the result of his negligence, even though those injuries, due to the prior condition, may have been greater than those that would have been suffered by another person under the same circumstances.

Thus, if the jury concludes that Mr. Evans’ knee pain was activated symptomatically as a result of this collision, he is entitled to his full damages incurred because of his symptoms.  But for the collision, there is no telling when, or even if, his knee would have ever become symptomatic.

 

Plaintiff and Lay Witnesses are Competent to Testify as to Plaintiff’s Pain and Suffering

The plaintiff’s testimony about his or her own discomfort is always competent evidence on the issue of past and future pain and suffering.  Skeeters v. Skeeters, 237 Or 204, 231 (1964).  Lay witnesses may also testify about the plaintiff’s present complaints of pain or disability or about the witness’ own observation of the plaintiff’s limited activity or pain behavior.  Frangos v. Edmunds, 179 Or 577, 593, (1946) (testimony of plaintiff’s wife about plaintiff’s physical condition and restrictions held sufficient to allow the issue to go to the jury).

Rule of Completeness

If Defendant reads, or otherwise offers, portions of deposition transcripts at trial, Mr. Evans reserves his right to have additional portions read at that time.  The “Rule of Completeness” requires that, if one side reads portions of a deposition at trial, opposing counsel has the right to have other portions of the deposition on the same subject read at that time.  OEC 106; ORS 45.260.  Fairness requires that opposing counsel should be able to introduce other portions of the deposition that qualify, or provide context for, the proffered testimony.  It is reversible error not to permit the introduction of other relevant portions of the deposition, at least at the conclusion of the reading of the deposition.  Westinghouse Electric Corp. v. Wray Equipment Corp., 286 F2d 491, 494 (1^st Cir.), cert den 366 US 929 (1961).

UCJI 74.01 Should be Given Because Mr. Evans Has a Permanent Injury

Mortality tables are admissible into evidence once evidence of permanent injury has been shown.  Frangos v. Edmunds, 179 Or 577, 604 (1946).  Here, Dr. Carlsen will testify that Mr. Evans has incurred permanent injury as a result of the hit-and-run.  Thus, the jury should receive the UCJI 74.01 jury instruction.  According to the Center for Disease Control National Vital Statistics Reports, Vol. 58, No. 10 (March 3, 2010), Mr. Evans, now age 34, can expect to live an additional 43.3 years.  (See Exhibit 1).

Future Possible Complications are Compensable.

The Oregon Supreme Court has acknowledged that a jury may consider future possible complications in determining damages.  Feist v. Sears Roebuck & Co., 267 Or 402, 410 (1973) (reasonable medical probability as to causation of initial head injury required, mere possibility of future contracture of meningitis stemming from the head injury properly submitted to the jury).  The Oregon Court of Appeals has reiterated this rule.  Pelcha v. United Amusement Co., 44 Or App 675, 678, rev. den., 289 Or 275 (1980) (plaintiff’s doctor testified that chance of future physical complications and surgery was between 30% and 45%; degree of likelihood was deemed a proper subject of evidence and a proper question for the jury); Henderson v. Hercules, Inc., 57 Or App 791, 796-797 (1982) (“less than 50% possibility” of future physical problems and surgery properly submitted to the jury).

Here, Plaintiff expects that the medical evidence will prove that Mr. Evans is left susceptible to future complications on account of his permanent injury.  Thus, the issue of Plaintiff’s possible future complications and medical treatment should be submitted to the jury.

Unidentified Witness’ Statements to Bar Staff Admissible

Shortly before the hit-and-run, Defendant attempted to steal another patron’s poker machine, with money still in it.  The victim patron reported this to the bar staff, which prompted Defendant being cut off, and kicked out of the bar.  Said statements are wholly admissible, as they fall under an exception to the hearsay rule for excited utterances.  Specifically, OEC 803(2) allows for an exception to the hearsay rule for “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  An excited utterance is admissible even if made by a bystander rather than a party, and even if the declarant is unidentified.  Wright v. Swann, 261 Or 440, 493 P2d 148 (1972).  Moreover, an excited utterance is admissible even though self-serving and offered by the testimony of a party.  Id.  The statement itself may be used to prove that it was made in a state of excitement.  State v. Jones, 27 Or App 767, 557 P2d 264 (1976).

Unidentified Witness Statements included in Police Report Admissible

The unidentified witness discussed in the preceding section also made statements to the investigating sheriff deputy.  Should the court determine that those statements are not admissible as excited utterances, they are still admissible pursuant to OEC 803(8)(b), which provides:

The following are not excluded by ORS 40.455 [EOC 802], even though the declarant is available as a witness:

(8) [Public records and reports.]  Records, reports, statements, or data compilations, in any form, of public offices or agencies * * * setting forth:

(a) The activities of the office of the agency;

(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel; or

(c) In civil actions and proceedings and against the government in criminal cases, factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. See also, ORS 40.460.

(Emphasis supplied.)

The legislative commentary to OEC 803(8)(b) states that public records are a recognized exception at common law, and that this exception is justified by the assumption that a public official will perform the official’s duty, and by the unlikelihood that a person will remember details independently of the record.  See Laird C. Kirkpatrick, Oregon Evidence 541-542 (3d ed., Michie 1996).  Thus, under OEC 803(8)(b) – (c), police reports are an explicit exception to the hearsay rule in civil cases so long as the matters are observed pursuant to a duty imposed by law, and that there was a duty to report such matters, as is clearly the case here.

Recorded Statements of Defendant’s Witnesses Must be Produced.

After a witness testifies, opposing counsel is entitled to any statements a witness gave, even if to his or her own insurance company.  Rigelman v. Gilligan, 265 Or 109, 115 (1973), citing with approval Pacific N.W. Bell v. Century Home, 261 Or 333, 339-340 (1972) (transcript of recorded statement of adverse testifying witness must be produced prior to cross examination, even if work product).  Plaintiff requests that all recorded statements of Defendant’s witnesses, including Defendant himself, be produced prior to cross examination of said witnesses.

Plaintiff May Ask Leading Questions When Examining Adverse Witnesses

In his case in chief, Plaintiff expects to call Defendant as a witness.  OEC 611(3) permits an attorney to use leading questions when examining the adverse party or those associated with the adverse party.

Mr. Evans Requests that the Jury Receive a Written Copy of the Jury Instructions

ORCP 59 B provides that “In charging the jury…the court shall reduce, or require a party to reduce, the charge to writing.  However, if the preparation of written instructions is not feasible, the court may record the instructions electronically during the charging of the jury.”  Mr. Evans requests that the jury receive a written copy of the jury instructions charged.  For the Court’s convenience, Mr. Evans offers to reduce the jury instructions to writing.