On April 1, 2021, amidst COVID-19 precautions, a jury returned a verdict for $1.65 million for a pelvic prolapse with symptoms that first appeared five months after a wreck. Mild to moderate prolapse had been noted at various times in the years before the wreck. Attorney Dirk Vandever used methods from Keith Mitnik’s book, Don’t Eat the Bruises, which once again proved their effectiveness.
To address the preexisting condition, Vandever used the “as is/equal justice” approach, emphasizing that our system embraces an open door policy to all Americans of every age, gender, health or strength. Rule breakers don’t get to specify the physical condition of those they harm. In voir dire and closing argument, Vandever likened it to a defendant ramming a truck carrying and destroying a cargo of eggs. The negligent actor doesn’t get to say, “I’m not paying for eggs; you should have been carrying golf balls.”
Defense counsel selected entries in records reflecting various times when there were no complaints, including once, four months after the wreck, when there had been a “complete resolution” of all other symptoms and that the plaintiff had returned to normal activities, including horseback riding. However, thereafter the plaintiff continued to experience low abdominal pain which eventually led to her organs prolapsing.
Opening slides were created with themes, including:
- “Common Sense versus Coincidence” (this was a very hard impact which, of course, would have caused injury)
- “As Is Justice” (all women who have delivered children may well experience some degree of prolapse . . . the key is the significance and whether or not surgery is required—as it was here)
- “Hinting/Poking … Evidence” (all people have good days and bad days—even someone with an amputated leg may have phantom pain one day and no pain at all the next . . . the damage remains the same but the can symptoms change)
- “In Context versus Out of Context” (all of the records collectively show that she was significantly hurt)
