The ongoing debate over who’s responsible for what plaintiffs and defense lawyers say is a surge in personal injury trials is ripping the Band-Aid off a familiar wound.
Plaintiffs lawyers say they’re forced to turn to the courts when tight-fisted insurers refuse to offer reasonable compensation to an injured party. Defense lawyers, though, counter that plaintiffs too often turn down appropriate or generous offers, opting to go to court in hopes of a big payday.
The calculations in high-exposure, catastrophic injury cases are necessarily intense, but two recent trials involving relatively routine, admitted liability damage claims—one a defense verdict, the other favoring the plaintiff—illustrate the fine line lawyers tread when advising their clients whether to take an offer or roll the dice with a jury.
In Cobb County, a woman who claimed to have suffered a herniated disk and liver injuries in an admitted liability car wreck turned down a $100,000 settlement offer, only to walk out of court empty-handed.
A couple of days later, a man who had a toe broken at a Dunkin’ Donuts shop when a piece of paneling fell on his foot, went to trial after an insurer turned down an $80,000 offer of judgment. The jury awarded more him than twice that.
The lead attorney in the Cobb County case, Waldon Adelman Castilla Hiestand and Prout partner Hilliard Castilla, said that in his experience, more seasoned plaintiffs lawyers are likely to seek reasonable recoveries.
“I find that the more experienced and skilled attorneys do not overreach, and juries are much more prone to return a verdict a plaintiff is happy with when they do not feel there has been overreaching,” Castilla said.
“Generally, I find that when astronomical sums are requested, there’s a backlash from the jury,” he added.
“I’m not saying that happened in this case,” said Castilla. His opposing counsel, Laura Maki of Morgan & Morgan—who requested $800,000 in closing arguments—“did a fine job and she’s an experienced attorney.”
“But the plaintiff was impeached on several occasions, and the jury felt that her credibility had been called into question,” Castilla said.
In an email, Maki said a challenge to the verdict is likely.
“We feel strongly that the verdict was inconsistent with the evidence presented at trial and will be filing an appeal,” Maki said.
According to Castilla and trial documents, Kourtnee Stroman, then 35, was traveling in heavy traffic on I-285 in 2016 when her Ford Expedition was rear-ended by a Toyota 4Runner driven by Linda Lippitt. The impact pushed Stroman’s vehicle into car in front of her.
Stroman was taken by ambulance to Grady Memorial Hospital, where she was diagnosed with injuries including a herniated disk in her lower back and a lacerated liver.
According to the pretrial order, Lippitt was reaching for her glasses in order to see the radio when she struck Stroman.
“It was a clear fault case,” Castilla said.
Stroman sued Lippitt in Cobb County State Court in 2017.
“At one point, they demanded $93,000 to settle, then once we got on the trial calendar they demanded the $100,000 policy limit,” Castilla said.
According to her filings, Stroman had medical bills totaling almost $50,000.
Lippitt’s insurer, State Farm Insurance, ultimately tendered its policy limit, but Stroman turned the offer down.
During a three-day trial before Judge Toby Prodgers, Castilla said Stroman testified that she continues to experience pain on her right side, arm and shoulder, as well as lower back pain from the herniated disk.
“Our case was that the plaintiff was not credible on so many issues,” Castilla said. “One of the biggest was the extent of her ongoing pain. In her deposition, she testified that it was at a certain level, then at trial it was more debilitating. She testified she was in too much pain to travel out of state except on rare occasions, and that testimony was contradicted by documents as well as her own before and after witnesses.”
On Sept. 27, the jury delivered a defense verdict.
The Fulton County case began when Brian Hosker was standing at the counter of a Dunkin’ Donuts in Marietta and a piece of wooden paneling estimated to weigh about 50 pounds fell onto his foot.
Hosker, 45, was on his way to drop his son off at summer camp, so he continued with that errand then drove to Resurgens Orthopedics, where X-rays showed his big toe was broken.
Hosker’s attorney, Norm Sawyer of Litner & Deganian, said the unusual accident left his client with a permanent foot injury in that he experiences constant pain “like he’s got a stone or pebble in his shoe” when he walks.
Hosker was fitted with special carbon insoles that he will have to wear the rest of his life to alleviate the pain, Sawyer said, at a projected cost of $16,000 or so.
“A large part of this case was really a debate over the whole value of the noneconomic damages, the pain and suffering,” Sawyer said.
Defense attorney Mark Scott with the Law Office of Natalie Smith, staff counsel for Nationwide Insurance, said he could not discuss the case.
Sawyer sent an initial offer in June 2017 for $500,000 to the donut shop’s insurer, Harleysville Insurance, which is owned by Nationwide.
“They offered $7,500,” Sawyer said.
“At the time, the demand only included $1,178 in medicals with no future medical costs,” he said. “We did, however, deem the problem a permanent injury in that demand.”
Hosker sued the franchise holder, Ioan Donuts Holdings, and the restaurant manager in Fulton County State Court in July 2017.
During a failed mediation “it was clear that when we got around the $100,000 figure that Nationwide wasn’t going any higher than $10,000,” Sawyer said.
“We were quite surprised, because it didn’t even compensate our client for his prior medical bills and what he is going to have to incur in the future. It made no sense to us,” Sawyer said.
During a day-and-a-half trial before judge Eric Richardson, Sawyer said key evidence included photos and X-rays of Hosker’s foot and misshapen toe.
“This is one of those cases where there was a lot going for him. A demonstrable injury, a lot of pictures, not just of the foot but the X-ray imaging as well,” sawyer said. “You could see the difference, so you put that in front of a jury.”
The jury took about two hours to award $167,500 in damages on Sept. 26.
“The No. 1 thing that helped this case get the value that it got was my client: a very professional software sales representative, presented well at deposition, presented well at trial,” he said.
Because the defense rebuffed the $70,000 offer of judgment, Sawyer said he will seek attorney fees under Georgia’s certified offer of settlement statute, under which a party that declines a settlement offer and then loses at trial by at least 25 percent more than the rejected offer may have to pay the winning party’s attorney fees from the date of the offer.