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Location: Richmond Circuit Court
Settlement: $22,000,000 plus special damages
This personal injury action arises out of a commercial vehicle crash that occurred on July 5, 2012. Plaintiff, a 12-year-old boy, was riding as a rear seat passenger in a 2004 Mitsubishi Lancer driven by a family friend. The vehicle in which plaintiff was riding was traveling in the left lane of I-95 South, as the occupants were on their way to Florida. Defendant driver was operating a 2004 Mack dump truck on his way to pick up a load near Sussex. Prior to the crash, defendant driver was heading northbound on I-95 along with several other dump trucks driven by fellow employees. At one point, the defendant driver became separated from his co-workers and got onto I-95 South, traveling away from his intended destination. He later testified that he planned to drive to the next exit (11 miles further south) and to then turn around and get back on I-95 North.
The driver of the vehicle in which plaintiff was riding testified that he was traveling 70 miles per hour (the applicable speed limit). He testified that he saw the dump truck moving slower in the right lane and then, without warning, the dump truck moved into the left lane directly in front of him. The driver testified that he slammed on his brakes, but was unable to stop and crashed into the rear of the dump truck. The location of the crash (as determined by skid marks, gouge marks and a burn pattern) was approximately 30 feet from an “authorized vehicle only” crossover that allows emergency vehicles access between the southbound and northbound lanes of I-95. Plaintiff alleged that defendant suddenly moved into the left lane in an attempt to make an illegal U-turn using the “authorized vehicle only” crossover in an effort to save time getting back onto I-95 North. Data obtained from the electronic control module (“ECM” or “black box”) indicated that the dump truck was traveling approximately 15 miles per hour at the moment of impact, further supporting plaintiff’s allegation of how the crash occurred. Plaintiff was asleep at the time of the crash. No eyewitnesses were identified.
As a result of the crash, plaintiff sustained catastrophic injuries, including blunt abdominal trauma, multiple small bowel transections and avulsions, descending colon injury, mesenteric injury, rupture of abdominal wall, abdominal aortic injury, L2-3 fracture dislocation with complete spinal cord injury, ASIA A T8 paraplegia, neurogenic bowel, colostomy, neurogenic bladder, sexual dysfunction and a moderate/severe traumatic brain injury with documented loss of consciousness, a Glasgow Coma Score of 8, and radiographic evidence of brain injury (punctate hemorrhage in the right frontal lobe and hemorrhage/edema in the anterior aspect of the corpus callosum consistent with diffuse axonal injury). He will require the use of a wheelchair, colostomy and condom catheter for the rest of his life.
Plaintiff was hospitalized at VCU Medical Center for approximately three months. He underwent numerous major surgical procedures including emergent exploratory laparotomy, bowel repair and colostomy, attempted abdominal closure, surgery to drain infectious fluid collection, spinal fusion surgery and abdominal wound closure with skin grafting.
While at VCU Medical Center, plaintiff was evaluated by Janet Neimeier, Ph.D. Her initial neuropsychological evaluation documented problems with visual attention, sequencing, information processing speed and ability to sustain strength and speed of hand movements. Subsequent neuropsychological testing administered by Jeffrey Kreutzer, Ph.D., and Ida Sue Baron, Ph.D., confirmed persistent deficits with visual attention, information processing speed, and strength and speed of hand movements.
Plaintiff filed a lawsuit in June 2013 and the case was litigated over the next 16 months. Liability was contested. In addition, portions of the plaintiff’s damages claim were also challenged, particularly the severity of the brain injury, plaintiff’s claim that he would not be able to drive or work in the future, and aspects of the life care plan.
Plaintiff identified 22 expert witnesses. Defendants identified seven experts. More than 25 depositions were taken. The case was mediated with the assistance of John OBrion 11 days prior to trial. Although the mediation was unsuccessful, settlement discussions continued, and the case settled for $22,000,000 on the Friday before trial.
A special needs trust was created with the assistance of Shawn Majette. The formation of the trust will protect Medicaid eligibility for plaintiff and members of his family. In addition, a portion of the settlement was structured with the assistance of Chip Hydrick. The monthly payments from the structure will total $66,500,000 over the course of the plaintiff’s expected life.
Type of action: Personal injury – auto accident
Injuries alleged: T8 paraplegia, moderate/severe traumatic brain injury, neurogenic bowel, neurogenic bladder, sexual dysfunction
Court: Richmond Circuit Court
Judge: Melvin R. Hughes Jr.
Date resolved: Nov. 6, 2014
Special damages: Past medical bills – $1,252,030.03; future medical bills – $3,921,228 to $4,654,097 (present value)
Verdict or settlement: Settlement
Attorneys for plaintiff: Paul D. Hux, Jason W. Konvicka and P. Christopher Guedri, Richmond
Attorneys for defendants: James A. Cales III, Norfolk; Kevin L. Keller and Brian W. Lown, Norfolk
Plaintiff’s experts: Heather Murtaugh-Pettis, M.D., emergency medicine; Jeffrey Haynes, M.D., pediatric trauma surgery; Gary Tye, M.D., pediatric neurosurgery; Andrea Pozez, M.D., reconstructive surgery; Aaron Krill, M.D., urology; William McKinley, M.D., physical medicine and rehabilitation; Janet Neimeier, Ph.D., neuropsychology; Jeffrey Kreutzer, Ph.D., neuropsychology; Ida Sue Baron, Ph.D., pediatric neuropsychology; Greg O’Shanick, M.D., brain injury medicine; Dallas Lea, II, M.D., spinal cord injury medicine; Susan Grisham, R.N., life care planning; Robert Jackson, vocational rehabilitation; Robert Cook, Ph.D., economics; Steve Chewning, crash investigation; John Steiner, ECM analysis
Defendants’ experts: James Culbert, Ph.D., neuropsychology; Eileen Ryan, D.O., pediatric psychiatry; David Rubendall, D.O., physical medicine and rehabilitation; Cynthia Gordon-Willson, life care planning; Gray Broughton, vocational rehabilitation; Raymond Strangways, Ph.D., economics
Type of Injury: Moderate/Severe Traumatic Brain Injury
Published By: Virginia Lawyers Weekly January 5, 2015