$800,000 Recovered for Brain Injury Victim Involved in Truck Wreck – – Allegations of Contributory Negligence Asserted against Victim (Victim was Illegal Alien who spoke only Spanish)
Type of Action: Motor Vehicle Negligence, Commercial Motor Vehicle Negligence, Tractor-Trailer Negligence, Traumatic Brain Injury
Injuries Alleged: Closed Head Brain Injury with Frontal Lobe Hemorrhage, Fractured Left Temporal Bone, Fractured Left Maxillary Wall, Fractured Sphenoid Plate, Fractured Right Temporal Bone
Name of Case: *Confidential*
Court and County: *Confidential, case filed in Civil Superior Court in Eastern North Carolina county*
Name of Mediator: Jackie Clare from Raleigh, NC served as Mediator
Special Damages: $121,205.56 Past Medical Expenses; $401,405 Projected Lifetime Lost Income; Life Care Plan/Lifetime Supervision
Verdict or Settlement: Settlement reached during 2nd Mediation
Highest Offer: After depositions, $150,000 was offered at first mediation.
Most Helpful Experts (Name, Title, City): Antonio Puente, Neuropsychologist in Wilmington; Indra Gatiwala, Neurology Center of Lumberton, Neurologist, Lumberton; Gabriel Fernandez of Hoke Family Medical Center, Family Practice Physician, Raeford; Michael A. Sutton, Accident Reconstructionist of Accident Research Specialists in Cary; Robert Wilfong, Trent Neurosurgery, Neurosurgeon in Wilmington; and, Medical Illustrations by Mark Valentine of The Visual Advantage in Knightdale
Lead Plaintiff’s Lawyer : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251
Description of Case, the Evidence Presented, the Arguments Made, and/or Others Useful Information: The plaintiff is a gentleman from Mexico. Before the collision, he was in the US working under an alias without proper documentation for lawful employment. He spoke only Spanish and could not read or write in any language. On the morning of this pre-dawn collision, the Plaintiff was driving to work in Bladen County at a large hog processing plant. About 1/8 of a mile before the right turn into the employee parking lot, the collision occurred on Highway 74.
A tractor-trailer truck driver failed to yield the right of way and pulled out in front of the Plaintiff’s vehicle. The Plaintiff slammed on brakes and swerved but clipped the safety bar on the tail end of the trailer. The trailer’s rear safety bar shredded through the hood and windshield of Plaintiff’s passenger vehicle and struck the Plaintiff’s face and head. The force was so great it broke the back of the Plaintiff’s seat and fractured several bones in his head and face. After 30 minutes’ extraction using the “jaws of life”, the Plaintiff was rushed by ambulance to Bladen County Hospital and then airlifted to the regional trauma center at New Hanover Regional Medical Center in Wilmington. Due to significantly raised intracranial pressure readings, the neurosurgeon performed brain surgery to relieve the pressure in hopes of saving Plaintiff’s life. The surgical intervention was successful and the Plaintiff now is able to walk, talk and move without restriction. However, due to some brain injury, he has a diminished full scale I.Q. with marked limitations affecting his executive function, ability to judge/perceive dangers, and relational interactions. After the collision, his employer terminated his health benefits claiming he was not lawfully employed.
Without medical insurance and no income, he was unable to pay for his medical care. For over four (4) years since the collision, his family has supervised him or cared for him on a 24-hours-a-day basis. Due to his brain injury and inability to recall any of the events of the collision or the moments before the collision, the truck driver’s statements as to how the collision occurred were difficult to contradict. The truck driver claimed to have come to a complete stop and, after pulling out some, he saw the Plaintiff’s vehicle speeding towards him while it passed another vehicle. The trucker estimated that the Plaintiff was going well over the posted 55 m.p.h. limit and that the Plaintiff only began to brake a few car lengths from the truck. After being released by law enforcement, the trucker called his supervisor who told him to drive away from the scene without first downloading the “black box” data. The truck driver destroyed much of the “black box” data when he pulled away from the accident site. Plaintiff’s counsel asserted that such conduct constituted a knowing spoliation of critical evidence which would give Plaintiff many favorable inferences to establish clear liability by the trucker. The chief battleground for the case was the plaintiff’s arguable contributory negligence. (The defense also asserted several other defenses. Arguably, the plaintiff had no valid operator’s license.
Since the Plaintiff was not legally entitled to earn wages in the US without a valid work VISA, the defense argued his lost wages claim was meaningless.) The roadway around the accident site is flat, with no obstructions to either driver’s view. If the trucker came to a complete stop before entering the intersection, contributory negligence would have likely barred the Plaintiff’s right to recover. Given the amount of lighting on the tractor and trailer and the visibility at the time, both accident reconstruction engineers would have conceded that there was ample opportunity (speed, time, distance, reaction time) for the Plaintiff to perceive the problem, brake, and avoid any collision with the tractor-trailer if the trucker came to a complete stop. However, Plaintiff’s counsel argued that the trucker’s testimony was not credible. There was physical evidence to refute parts of the trucker’s story. Unfortunately, not all of the trucker’s story was contradicted by the physical evidence. Nonetheless, with the inferences drawn in Plaintiff’s favor, because the defendants knowingly destroyed the black box data, the Plaintiff’s counsel argued that the truck did not come to a complete stop and that Plaintiff’s reaction was appropriate and there simply was not enough time or distance to entirely stop before point of impact. The defense had witnesses that would arguably have offered sufficient evidence for the jury to conclude the Plaintiff was contributorily negligent.
The Plaintiff’s family would have presented very well to the jury via an interpreter. Due to the language barrier coupled with the type of injuries involved, this case presented some difficult problems. Admittedly, the Plaintiff “looked fine and acted fine.” 9 out of 10 times, he correctly answered factual questions such that proving he had a severe brain injury and needed supervision was worrisome. For those who knew him before or spoke fluent Spanish and were around him for any length of time since the collision, it was obvious he suffered a severe impairing brain injury. Many of these problems were addressed by the bilingual neuropsychologist, Antonio Puente, who evaluated the Plaintiff while he was still in the trauma center at New Hanover Regional Medical Center. The medical illustrations were important in showing the magnitude of his brain injuries. Given the evidence and amount of time it takes a tractor-trailer rig to clear several crossing lanes from a dead stop, the Plaintiff was forced to accept the defense’s final offer of $800,000 on the evening of the mediated settlement conference.
Amount Actually Recovered for Client: 100% recovery, ie., $800,000.00 (Eight Hundred Thousand Dollars).