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June 16, 2017

WSHB Partner Successfully Argues that Lack of a Consistent Chronology of Complaints Meant Collision Was Not a Substantial Factor in Need for Surgeries

In a closely watched case, a San Diego jury rejected a $12 million demand from two plaintiffs who claimed substantial injuries. Veteran trial lawyer Wyeth Burrows successfully argued that the chronology of events demonstrated the accident was not a substantial factor in the need for the ensuing medical treatments.

In a case of stipulated liability, the client’s truck, hauling a scissor lift, rear-ended a pickup truck occupied by two plumbers on their way to a job. The occupants of the pickup were transported by a family friend to San Diego emergency room with complaints of back and neck pain. The Plaintiffs were discharged with negative findings on MRIs and x-rays, but both returned in the following days with worsening complaints of pain in the neck and back. Over the course of the next year and a half, both Plaintiffs underwent conservative care, including physical therapy and multiple epidural injections. Eventually, they underwent surgeries to address their worsening complaints of pain, which now included radiculopathy into their arms and legs.

The first Plaintiff underwent two surgeries, including a cervical fusion and disc replacement. As he denied any history of neck or back injuries prior to the collision, the treating orthopedist attributed the need for the surgeries to the collision. This Plaintiff incurred $600,000 in recoverable medical bills over a 24-month course of care. Defendants conceded at trial that this Plaintiff was disabled as a result of the surgeries and is unable to resume his career as a plumber. He faces significant obstacles to future employment beyond sedentary jobs, due to his dependence on a cane. He presented evidence of past and future lost wages of $1.2 million.

After the second Plaintiff failed conservative treatment, he also underwent surgery. This Plaintiff also denied any history of prior back injuries, and the orthopedist attributed the need for surgery to the collision. The second Plaintiff incurred $385,000 in past medical bills and sought an additional $245,000 for a future surgery. He also sought $700,000 in lost earnings, both past and present, due to limits on his ability to continue working as the owner of his plumbing company.

Plaintiffs asked the jury to award more than $12 million, including $3.1 million in hard economic losses.  Plaintiffs were represented by Paul Kiesel, Beverly Hills.

Attorney Burrows stated, “We knew this was going to be a very difficult trial. It is always a challenge to get a jury to second guess surgeries already performed. In our case, the Plaintiffs had attempted conservative care for a year before having these very invasive surgeries. But the medical records from the first few months after the collision showed some inconsistencies in their complaints over time. Ultimately the jury decided these men could not connect any injury from the collision to their supposed need for surgery.”

Burrows, along with fellow firm attorney Steven Stutsman, argued that Plaintiffs’ course of medical treatment documented inconsistent complaints of pain, including a two-month delay in the onset of radiculopathy. They argued that these inconsistencies undermined Plaintiffs’ efforts to establish the collision as a substantial factor in causing injuries for which they had surgeries. Burrows observed that “by the end of the case, the jury understood that the surgeries were necessitated, if at all, by degenerative changes not attributable to our accident.” The WSHB trial team further argued that the medical bills were grossly inflated and presented evidence of a reasonable valuation of each item of care through expert testimony.

The jury agreed, awarding the first Plaintiff $85,000, and the other Plaintiff just $54,000. The jury deliberated for only 3 hours.

“There is a tremendous benefit to picking the right jury,” said Burrows. “These jurors were more attentive to their case than any jury I have ever seen. They listened and they understood what they were hearing. They figured out that something wasn’t right about Plaintiffs’ case. I’m very happy with the decision; this is a big win for WSHB. We have the talent and resources to fight the tough battles when called upon. This was a hard case, but we presented it properly and got the right result.”


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