It took six years and two state court mistrials, but the third time was the charm for a man awarded $1.4 million by a federal jury for injuries suffered in a car wreck.
Liability for the wreck was never an issue, said Parks Chesin & Walbert partner Thomas Trask.
“The jurors could never agree on the amount [for damages],” said Trask. “There were two injuries: the knee and neck. The knee was never contested. But whether the herniated disks were caused by the wreck—that was the issue in all three trials.”
Nichols, then a 42-year-old carpenter, suffered “pretty significant neck injuries including three herniated disks,” said Trask, who tried the case with former Parks Chesin colleague Maha Amircani, now an Atlanta solo.
All three trials were defended by Waldon Adelman Castilla Hiestand & Prout partner Hilliard Castilla.
Castilla noted via email that his firm was brought into the suit after it became apparent trial was unavoidable because the plaintiff would not settle for the insurer’s limits.
The defense “had no illusions” regarding a plaintiff’s verdict in the admitted liability case, Castilla said.
“Notwithstanding these concessions, two prior juries deadlocked,” said Castilla, “Mr. Trask, an experienced trial lawyer, was able to leverage revelations from the two previous mistrials into a verdict for his client.”
Castilla said no decision has been made regarding an appeal.
According to Trask and court filings, the case began in 2011 when a Dodge Neon driven by Andrew Fannin ran a four-way stop sign in McDonough, hitting Wayne Nichols’ Chrysler Sebring in an “almost T-bone” wreck.
Fannin said he was going about 50 mph, and was unable to stop in time, Trask said. Fannin suffered some contusions but was otherwise fine.
According to his court filings, Nichols had more than $336,000 in medical bills for two surgeries and other treatment.
In 2012, Trask sent a demand letter for the $25,000 limit of Fannin’s Hallmark Insurance policy, but there was no response within the 30 days stipulated in the time-limited offer.
“They verbally offered $13,000, then came back after the time ran with the $25,000 limit,” he said.
Nichols sued Fannin in Henry County State Court in 2012, and mediation failed to resolve the dispute, Trask said.
In 2015, the defense sent a certified offer of judgment to settle for $25,000, he said. Under Georgia’s offer of judgment statute, a party that declines a settlement offer and then loses at trial by at least 25 percent more than the rejected offer may be required to pay the other side’s fees from the date of the offer.
Trask declined that offer and made a counter offer for $90,000, which was declined.
In 2015, a three-day trial before State Court Judge Benjamin Studdard III ended in a mistrial, as did a repeat performance the following year.
“The judge left the jury out at least two days, more than a full day after they said they’d deadlocked. We had to go back on a Saturday; he did not want to try that case again,” Trask said.
A complicating factor was Fannin’s status as a Marine recruit. He missed both earlier trials and then was transferred to Florida.
After the second trial, the case was voluntarily dismissed and refiled in federal court in Atlanta.
During a trial that began before U.S. Magistrate Judge Justin Anand, Trask said the evidence and testimony was largely the same as the first two trials.
“The main difference was that this time was we got a reconstructionist and epidemiologist, Michael Freeman from Oregon, who was very effective in breaking down for the jury that there was no evidence of prior problems with [Nichols’] back or neck other than some minor strains from years before,” he said.
While the defense admitted the wreck and some of Nichols’ injuries were Fannin’s fault, defense documents said “extensive, preexisting degenerative disc disease” explained his spinal injuries.
Key defense experts included retired Atlanta orthopedist Lee Cross and Texas biomechanist and accident reconstructionist Charles Bain, Trask said.
After about four hours of deliberations on Nov. 17, the jury awarded Nichols $1.4 million.
Trask said he spoke to three jurors afterward.
“They said they were just glad to help Mr. Nichols,” he said. “The largest debate was over how much to award.”
Trask praised both Castilla and Judge Anand for what he termed a fair and professional trial.