Last week, Trial Guides author Rick Friedman obtained a $21.5 million verdict in a difficult traumatic brain injury case. We wanted to share how Rick obtained the outcome despite extremely challenging facts.
Rick’s client was a fifty-seven-year old self-made multimillionaire on a cruise with Holland America Lines. He, his wife, and his daughter were scheduled for an eight-month around-the-world cruise. One day on the ship while he was walking through a doorway, the door closed suddenly and struck him in the head. He readjusted his glasses and moved on. Later that day, he went to see the ship’s doctor with a headache. A week later, when his headaches persisted, he was diagnosed with a concussion, or mild traumatic brain injury. At the time, he tried to brush it off but he then developed severe headaches and brain injury symptoms including loss of balance and fatigue.
Rick faced some very serious challenges in this brain injury case:
• The client had no loss of consciousness.
• The client was very wealthy, which left jurors with some resentment toward him and his family.
• The client continued for another seven months on the cruise, participating in excursions like riding elephants, swimming with dolphins, and visiting the pyramids.
• Upon returning home, the client saw a neuropsychologist who said he had no brain damage.
• The brain imaging was all negative.
• The client had no immediate symptoms of traumatic brain injury other than a headache.
• The client had no wage loss.
• The client had a small stroke two years before the cruise.
• The client also had a history of drinking and had fallen off a bar stool in 2001, causing a prior concussion.
Not only this, but the client didn’t appear to show any outward signs of cognitive deficits. Rick’s client continued to run his successful business from the ship, writing more than 1,700 pages of emails that not only clearly talked about the details of running the business, but also expressed opinions about “the fucking Democrats” ruining the country, and things of that kind. During trial, the judge ruled that these statements were all admissible as they were not prejudicial at all.
Upon arriving home after the end of the cruise, the client went to a neuropsychologist for an examination. The neuropsychologist gave him a full battery of cognitive tests and wrote a report saying he had not suffered any brain damage, but may be tired or have difficulty concentrating because of his headaches. The deposition of this treating neuropsychologist was the centerpiece of the defense’s case. Rick did his best to neutralize the neuropsychologist’s testimony by pointing out he didn’t have the medical records and had some facts wrong.
The jury heard at trial that the plaintiff had become distant from his friends and family and suffered from severe headaches, mood swings, and seizures. The defense responded that the seizures were not real and were psychological in origin.
Rick used his method in Polarizing the Case to go after this allegation: Why would a multimillionaire and his wife disrupt their cushy life to engage in litigation over a fake injury? What was more likely to be right: that a multimillionaire would fake an injury to get money he didn’t need, or that he really was injured as he claimed?
Rick took bad facts and reframed them:
• Defense position: The plaintiff is rich.
• Rick’s response: He has nothing to gain by filing this lawsuit.
• Defense position: The plaintiff wanted a settlement and then sued when he couldn’t get it.
• Rick’s response: He was acting like an adult and trying to avoid filing a lawsuit.
• Defense position: The plaintiff kept cruising and going on shore excursions after the injury.
• Rick’s response: He loved his family and wanted to see them happy. Also, he is not a whiner and was trying to move on.
Using the method in Polarizing the Case, he faced the “bad” evidence and showed why the defense’s arguments were nonsense.
As Rick discusses in Polarizing, lay witnesses were critical to winning this case. Rick’s firm had identified over ten lay witnesses for trial, and Rick named all of them. Despite this, the court ruled he could only produce four, plus the plaintiff’s wife. Rick believes the testimony of these five lay witnesses was critical in cutting through the conflicting opinions of fourteen expert witnesses, and provided the jury with the best evidence about the client before and after the injury.
These witnesses told the story of how the plaintiff had to sell his successful business after this injury because he no longer had the mental or physical resources to manage it. (He received fair market value for the sale, so there was no economic loss claimed.) Lay witnesses also discussed how he lost self-worth and the feeling of accomplishment when he had to sell his company.
In terms of the liability case, an investigation by Friedman and Rubin led to the discovery of numerous similar incidents with injuries and a history of corporate indifference to the danger posed to passengers. Holland America only kept records of passengers hit by doors who then required medical attention for a period of three years. During that three-year period, the ship line knew that thirty-four passengers had been hurt by doors automatically closing on them. Rick’s firm also learned that in the case of their client, the door’s timer (which determines how long the door waits before closing after it no longer detects someone in the detection field) was set at zero. There was some evidence that this was to save money on air conditioning. Even though the doors could be easily adjusted to avoid such incidents, the cruise line failed to take any action until this lawsuit.
Nearly every ruling in the trial, except the one for punitive damages, went in favor of the defense. The judge ruled that only sixteen of the thirty-four prior incidents of passengers being hit by doors were admissible.
On the last day of trial, the defense unloaded three highly talented experts who Rick felt “rolled over us like a tidal wave.” Despite feeling overwhelmed, he didn’t give up. Rick notes, “I tried to keep in mind Paul Luvera’s adage that trial is a ‘battle of impressions,’ and tried to do impressionistic crosses in a short period of time. I am going to continue to explore the concept of impressionistic cross, as I think it is what saved us.” In doing this, he “found two or three points, hit them hard and fast, and sat down—trying to convey ‘this expert is so full of it we don’t need to spend much time with him.’”
Rick felt that the defense’s counsel was extraordinarily rude to his clients during cross—snide, sarcastic, and disrespectful. Co-counsel David Roosa noted, “You could see the defense lawyers getting almost giddy. At one point, they were carrying on and laughing after a defense doctor had made some clever joke in response to one of Rick’s questions. The smugness from their side of the room was palpable. They were snickering and laughing during the break. It felt like a schoolyard bully routine in a way.” Rick believes this is what drove a high verdict.
Jurors returned the $21.5 million dollar verdict against Holland America Cruiseline in US District Court, finding that the cruise line acted with reckless disregard for the safety of its passengers. The jury’s award included $5 million in compensatory damages and $16.5 million in punitive damages. The large punitive award sends a message to Holland America that it needs to pay attention to passenger safety.
Throughout the trial, Rick used his Polarizing the Case method, contrasting between the defense position that the plaintiff was fabricating or exaggerating his symptoms, and his own position that plaintiff is legitimately injured in the way he claims. With the malingering and somatoform disorder being common defenses in all types of injury cases, Polarizing the Case provides you with ways to contrast the truth of your client’s story with the misrepresentations of the defense’s counsel and experts.
Congratulations to Rick Friedman, David Roosa, and Herb Farber on this great outcome.