Carl F. Thelin

THE P.I. AND P.L. BUSINESS

  

          Scene One.

"If the shadow of a semi passed over the car ---"

A plaintiff lawyer might suggest something like that to Arthur Adams, his client who was involved in an intersection collision on a four lane roadway. Mr. Roscoe, the lawyer, discovered that Bruce Boyle, the eastbound driver-at-fault who attempted a left turn into the path of his client, had only $25,000 liability insurance. Arthur was not badly hurt, but Mrs. Adams was, when the left front corner of their car slammed into the other one.

            Even if Mr. Roscoe should win this case, the $25,000 settlement from Bruce’s insurer will not cover the hospital expenses, nor adequately reward the lawyer for taking the lawsuit. Mr. Bregman was the attorney for the insurance company that provided the requirement minimum liability coverage for Mr. Boyle. He had nothing to do but sign the check for the Adams.

            Going after a trucking company is an example of the plaintiff's attorney hopes of shifting the blame to someone with the ability to pay big bucks. A fleet with several trucks must have a very large insurance policy. He will go into their "deep pockets". Roscoe and his experts hoped to convince some jury to put some fault on the trucking company. In reviewing the police report, they discovered something not mentioned by Mr. Adams or Mr. Boyle. They discovered that there was a Coleman Cartage truck at that intersection in the passing lane. It was waiting to turn left onto southbound Beech Road. The tractor-trailer completely blocked the ability of Bruce to see that Art’s car was passing the truck on its right side. That contributed to Bruce's misjudgment of turning into Arthur's path. It is plausible, and some reconstruction could establish that.

            If Bruce, the errant driver in Scene One, did have a $1,000,000 liability policy, his insurer, represented by attorney Doan, might attempt to avoid that big payout by shifting the blame. In some states, Doan could attribute a portion of the damages to her for failing to use her seatbelt and limit the payout.

            Doan might convince Arthur’s attorney to wait for the insurance company to start an independent case by subrogating against the manufacturer of Arthur's car. They would blame the severity of the injuries to Arthur's wife on the collapse of the passenger seat, which added to the forces crushing her against the dash. Here Doan is going to blame the design of the Adam’s car.

                                                          PRODUCTS LIABILITY

            A Products Liability (PL) lawsuit is one in which the defendant is a manufacturer of autos or medical products for instance. There will be many similar cases that allege that the product was made with harmful defects, or contained harmful ingredients. A P.L. suit in which it is alleged that only a few samples of the product were manufactured substandard ("A bad day at the factory") is generally easy to allege and prove if you have one of those bad samples available for inspection.

            A crashworthiness case, such as those I deal with, alleges that a product defect caused the injuries to be worse than they would have been in a car without that defect. An important version of that PL case involves allegations of defective design. Now the plaintiff lawyer says that all of these things contain defects that are "time bombs" waiting to go off and injure some innocent people. He says that a designed-in characteristic of the product is the cause of the catastrophic injuries.

             Another type of design defect can be asserted to be responsible for the driver's loss of control, whether is be because of unpredictable handling, or propensity to overturn in a severe maneuver. Think of the Chevrolet Corvair.

            Lawsuits with the broad scope of a P.L. case will also occur when a large service organization such as a railroad or trucking company is the defendant. These defendants have "deep pockets" and are frequently required to defend the performance and training of the operators of their vehicles. The same companies have to defend themselves over and over. These defendants also engage in blame-shifting. The company or its insurer looks for another defendant to share the cost of paying the damages to the injured part.

            LET'S LOOK AT OTHER EXAMPLES

            Scene Two

Mr. Able, the driver of a sedan, attempted to turn left from northbound Elm Street onto westbound Maple Street after stopping for the stop sign at the corner.  An eastbound coupe driven by Mr. Baker hit the left rear side of the sedan. Both drivers were injured. Mrs. Baker was injured in the passenger seat. Bobby Baker in a child restraint on the passenger side of the back seat also received head injuries.

            It would seem clear that Mr. Able is the bad guy in this case. He should have remained at the stop sign until Baker’s car passed.

            Issues that might be raised by Mr. Able's attorney: Even though Baker had the right-of-way, was Baker was going so much faster than the usual traffic that Mr. Able greatly underestimated the amount of time he had to complete his turn and get safely out of the path of the coupe? If it can be proven, that usually leads to shared responsibility - and costs.

            Did Mr. Able contribute to the severity of his own injuries because he failed to use his seatbelt? That could mitigate the amount of penalty against Baker.

Were Baker’s brakes so poorly adjusted that he couldn't slow down enough to pass behind Mr. Able? Who last adjusted them? Maybe we can shift the blame to the repair shop.

            Was Mr. Baker under the influence of alcohol, which caused his braking reaction to be seriously delayed?

            Why didn't Mr. Baker turn to his right and go behind the sedan. Wasn't he exercising poor judgment to try to cut ahead of the intruding sedan?

            Mr. Baker's attorney might try to shift some blame by arguing that Bobby Baker's serious head injuries would have been significantly less if the child restraint had been properly secured to the rear seat. Or he might even argue that the child restraint was defectively designed because it did not provide adequate protection in a side impact.

            Scene Three:

The Red line is the path of the semi-truck driven by Charlie. The Green line is the path of the other semi-truck. The Blue line is the path of Jones’s Buick.

            Interstate number 21 runs north and south over a bridge above State Road 100 which is a four‑lane highway with a narrow median. All westbound traffic on State Road 100, wanting to go south to Texas, must turn left after passing under the bridge to go onto the southbound ramp. All traffic going north on Interstate 21 must also turn left on the east side of the underpass to climb up the on ramp.

            Charlie was driving a tractor-semi-trailer eastbound on State Road 100. As he approached the place to turn left to the I-21 on-ramp, he saw another truck coming his way on the left lane of eastbound State Road 100. The driver of that truck was going to go under the bridge and turn left to go north on I-21. He was signaling a left turn, too.

            Charlie timed his arrival at the median cut-through just right, he thought. He wouldn't cut in front of the oncoming truck, but he planed to swoop around behind the other truck just after it passed by. When he began turning (going less than 10 mph) he found himself pulling into the path of a Buick sedan westbound in the south lane of State Road 100. He could not accelerate the sixty-foot truck out of the way, nor could he stop soon enough to get out of the way. Mr. Jones, the driver of that car, braked and swerved to the right but could not avoid hitting the side of the truck. This is a complicate scene to describe but one that occurs frequently.

            Charlie was clearly at fault. He made the mistake of assuming that there was no other traffic running along in the blind spot behind and to the right of the oncoming truck. 

            Can blame be shifted? Try these ideas: The crash occurred at dusk when most vehicles should have turned on their headlights. Despite the damage to the front of the Jones vehicle, can a CxSI expert show that Mr. Jones failed to turn on his headlights? Would Charlie have seen those lights shining on the pavement under the oncoming truck and trailer early enough to have avoided turning into the path of the sedan? Ah ha. That defense works often.

            Did Mr. Jones fail to use his seatbelts, causing his injuries to be worse than they would have been otherwise? Harder to prove, but might work.

            Did the right front seat in the Buick slam forward on defective seat tracks, adding to the crushing forces that injured Mrs. Jones?

            In the last three examples, the fact that Charlie was driving under the influence of alcohol, which affected his judgment,  would not have affected the possibility of getting the Jones family or the maker of the sedan to share some of the expenses of compensating for the injuries to Mr. and Mrs. Jones.

            IS GREED RESPONSIBLE FOR LARGE JURY SETTLEMENTS?

            Are plaintiffs and their lawyers motivated by greed to demand exorbitant compensation? That's a matter of opinion, of course. However, most plaintiffs expect adequate compensation for an injury caused by someone or something that was not under their own control. Plaintiff lawyers usually are risking their own time and money on the prospect that they can help the plaintiff who could not otherwise afford the large expenses of a lawsuit. The lawyer expects to get a large share of the award if the jury agrees. Rather than take the risk that the jury will not find the defendant at fault the lawyer will attempt to negotiate a settlement that is fair to all parties. Such a settlement is enhanced if the plaintiff is someone likely to win sympathy from the jury, and the amount of the dollar damages is reasonable. But, even if those things are so, sometimes the manufacturer must fight to win. A settlement might encourage others to file a similar suit if the complaint is based on a defective design causing many similar injuries to be worse.

            If the damages are small, the plaintiff lawyer shuns the case because the expenses swamp the potential benefits, unless the plaintiff contributes to the expenses. This is often a "grudge" fight to defend the plaintiff's driving record.

            Defense lawyers are usually paid by the hour or on retainer – like a salary. Nevertheless, they get points for negotiating fair settlements, too. The expenses of a trial, along with the unpredictability of the jury, usually favor seeking the settlement, especially for "deep pocket" defendants who fear generous juries.

            ONCE A "BAD" GUY, ALWAYS A BAD GUY

            To put on his case, the lawyer often must present technical evidence to show who, or what, was most at fault for causing the injuries. The "expert witness" is called to testify that he (or she) has examined the available evidence and has the opinion that the fault was with someone or something. Sometimes more than one expert is needed. Each expert must have a technical background that lends credibility to the expertise of the judgments. One expert may have work experience in design or manufacturing the product, another may have taught courses in some relevant fields, and the third may be an experimenter who knows a lot about what causes certain kinds of injuries. Each has to paint a picture that accurately describes their view of the matter. One way to do this is to say that this scenario is the one that minimizes the contradictions in the collection of statements and physical evidence.

            An expert can testify for plaintiff on one case and for a defendant case at another time, when they are third party cases. However, an expert who testifies once in a plaintiff case against an auto manufacturer will never again be asked to assist in the defense a case against that car maker. The auto company cannot risk sharing information with an expert who will use such inside information against the company in another lawsuit.

            For this reason, experts are separated into two classes. Some primarily assist defense for car manufacturers, and are involved in only a few plaintiff cases where neither party is the manufacturer of any automobile or components. Others find themselves approached only by plaintiff's lawyers. These experts can provide some hidden benefit for manufacturers when they evaluate the initial evidence and warn the attorney that there is no technical basis for the plaintiff's claim. Many experts have such experience that they can warn the plaintiff lawyer of the likelihood that the defendant's evidence will be overwhelming, and that prospects of losing are high.