A week before Thanksgiving, a trial team and I won a $10 million verdict in a case involving a broken talus bone in a conservative county (Indianapolis) with $10,000 in past medical bills (which we fought to keep out but which defense was allowed to bring in). This was a hard fought battle with a tough judge and some really bad rulings, but we prevailed with grit and foresight.
The case involved an admitted liability trial against Frito Lay. Plaintiff, a 47 year old female, shattered her talus bone in the wreck.
Her talus bone healed but post-traumatic arthritis became apparent later and progressed quickly from mild to severe over the course of two years to the point that she can no longer walk more than a block or two, cannot stand for longer periods of time to cook meals, cannot fall asleep until 4am due to the pain, and cannot sit to work longer than an hour or two without tears.
Her physicians all opined she needed a subtalar fusion which she had yet to get due to high blood pressure that predated the wreck but that she could not control post-wreck due to inability to exercise.
Defense tried to use blood pressure as its biggest red herring throughout the trial and said the fusion would fix it all. We argued that there was no magic pill for her and even if she got the fusion, she would forever have pain.
Paid medicals were $10,000, incurred medicals were $45,000. We wanted to waive these but defense was allowed to bring them in.
Defense IME opined that plaintiff had a new injury during the recovery period. Defense pulled the plug on him and didn’t call him to testify which likely backfired as he was their star witness.
One of the big claims for damages was the fact that the plaintiff was unable to complete her doctorate and work. The pain in her foot is so severe that she cannot sit for more than a couple of hours without tears and can’t walk without assistance. She had dreams of starting programs to help aged-out foster children which would help heal some of her wounds from her broken and abusive childhood. Lost earnings were $600k, but the loss was so much more than that. She lost her passion and purpose.
Defense economist refused to acknowledge that chronic pain and loss of sleep could make it more difficult to focus or sustain employment long term and that she could sit to work but she broke down in tears during testimony and needed a break. She was far from a complainer and was a stoic woman with a tough life. Jurors knew this was not theatrics.
The judge was so harsh on my attorney clients that they almost called off trial days before. “We can’t get a fair trial with this judge,” they said. After talking it through with them, I convinced them to push forward. Trials are never clean, judges often make bad rulings, and yet it all comes down to the story, the client and the jury. I knew we had a great client, a compelling story, and we had to get to trial to see the jury (who also turned out to be fantastic).
The judge denied demonstrative animations, including a surgical animation that even defense agreed was admissible. In opening, he cut us off on any part of undermining defense contentions stating that we could not preview the defense case at all. During jury selection, he did not seem to properly account for juror numbers and denied a very clear cause challenge (while granting a lesser one for defense).
He was good at engaging jurors, however, and did calm down when we got moving.
Final offer during trial was $200,000. The jury took 90 minutes to come forward with a $10,000,000 verdict.
I helped with case framing, witness prep of the client and her family members, review of client-conducted focus groups, aide in opening statement and closing argument preparation, and select the jury. Brandon Yosha of Yosha Law and his team took my advice and eagerly applied it. They weren’t afraid to put in the hours or change course and the results speak to that.
I’m very proud of this one: it could have been a case about a broken heel and speculative surgery but jurors knew it was about so much more.
A note about trying a case during holidays: trial timing is rarely convenient. But when your closing argument lands during the holidays, you can either ignore it or use it to anchor the jury in the real-world human consequences of their decision.
In closing, Brandon went through how long the verdict has to last. By showing a timeline of past events, he was able to get jurors to realize how long 40 years is. This gets jurors primed to think of the consequences of their verdict over time.
Since we closed a week before Thanksgiving, I told Brandon to add this:
“Thanksgiving and the holidays are upon us and we will all go back to our families and friends. In twenty years, when Thanksgiving rolls back around, maybe you will think of Karen and your verdict. I hope that you will be proud of the decisions you make here today and look back without any regret. Because somewhere, at that very same moment, at some other Thanksgiving table, Karen will be living out your verdict. What does that look like for her? That’s up to you.”
If you want to hear more about this trial, we will be speaking on Trial Lawyers University on December 18th at 10:30am PST and it will be recorded and available on demand thereafter.
If there is a case I can help you with, please reach out. I’d be honored to help.
jurorproof 