Fury Bailey - Personal Injury - Wrongful Death Attorneys

A PEDESTRIAN IS RUN DOWN IN A CROSSWALK BY A SPEEDING VAN, RESULTING IN SERIOUS INJURY AND A SUBSTANTIAL VERDICT

By William S. Bailey

Following an unsuccessful all day mediation, the mediator said to the departing claims adjuster, “Well, for your sake I hope I don't end up reading about this case in the WSTLA Trial News .” This comment turned out to be prophetic after a King County Superior Court jury returned a plaintiff's verdict on March 3, 1995 which was over twice the best offer of the defendants.

Plaintiff Nathan Malkow is a 36-year-old commercial fisherman who lived six months of the year in rural Okanagon County . On December 22, 1992, he was driving west of the mountains to meet up with the rest of his family for the Christmas holidays. He lost the fan belt in his truck just outside Monroe , Washington . He managed to limp into Monroe with an overheated engine and pulled into the parking lot of a car parts store along State Highway 2. He installed a new fan belt then decided to get some food at a nearby McDonald's while the engine cooled off. He pushed the crosswalk button at the intersection of State Route 2 and East Main and waited for the walk signal. He and his dog Rooster then started into the crosswalk when the light changed and were in the middle of the crosswalk when he was struck by defendant Christine Cooper, who was driving a courier van for defendant Air Data Express. Cooper had only worked for Air Data about two months and had another turning accident on the job three
days before she hit Mr. Malkow. Plaintiff's accident reconstruction expert estimated that the front of defendant's van struck Mr. Malkow at about 25-27 m.p.h. His body landed in the street, about 57 feet from the estimated point of impact. Two nearby motorists came to Mr. Malkow's aid and found that he was still alive, struggling to get up off the pavement. He was taken by ambulance for medical care in Everett , Washington . It was determined that Mr. Malkow had sustained a head injury of undetermined severity, but had no apparent fractures. Over the next two years, he would develop chronic myofascial pain, particularly along his left side and developed classic symptoms of a traumatic brain injury.

Although the defendant driver Christine Cooper was cited by police for failure to yield the right of way to a pedestrian in the crosswalk, defendants vigorously contested liability in this case. Plaintiff's counsel could not get into evidence the fact that Ms. Cooper forfeited bail to the charge of failure to yield to the pedestrian in the crosswalk. No other eyewitnesses were in a position to see the pedestrian walk signal. So only plaintiff was able to state that he was crossing with the light. Thereby, defendants turned the liability case into a classic swearing contest, one person's word against another's. Defendant Cooper testified that she wasn't sure that Mr. Malkow was really in the crosswalk. The jury chose to believe Mr. Malkow's version of the facts and disbelieve defendants. Despite a vigorous attempt by the defense to have Mr. Malkow found contributorily negligent, the jury declined to assess any blame against Mr. Malkow.

The defense case on liability revolved largely around the vague statement of an eyewitness that she heard a “thump” coming fro m b ehind her as she waited at the stop line for the crosswalk in question for the traffic light to change. Defendants' counsel then suggested that this “thump” could
only mean that the plaintiff had suddenly decided to step outside the crosswalk. It was suggested by defendants that plaintiff had decided to take an abrupt detour out of the crosswalk in order to go to a nearby grocery store. Yet, eyewitnesses had placed the plaintiff in the crosswalk as he passed in front of cars waiting behind the stop line.

The trial of this case illustrates a number of things, one of which is the critical importance of a good private investigator. Only one eyewitness, John Scott Morris, saw the entire incident. Mr. Morris picked up the van as it began its left turn and actually saw it hit Mr. Malkow in the crosswalk. The problem was that within several months after this accident, Mr. Morris left the State of Washington where he had lived for several years in order to return to his native state of Montana . At the time of the accident, he was an assistant at the Pilchuck Animal Hospital . However, the personnel at this facility had no idea how to reach him in Montana . Without this critical eyewitness, it was largely a case of plaintiff's word against the defendants as to what happened in this accident.

Fortunately, plaintiff's counsel had the services of Dennis C. Hanson, a diligent and resourceful private investigator. Mr. Hanson is a retired King County Police Officer and his training and experience enabled him to successfully locate Mr. Morris on a ranch in Montana , after a frustrating six month search. Once found, Mr. Morris was happy to cooperate and come to Seattle to give a deposition as to what he saw on the night of December 22, 1992. Despite an attempt by the defendants to argue that Mr. Morris was a biased witness, he was resolute in his position that he had no reason to favor one side over another. He directly refuted defendants' contention that Mr. Malkow was out of the crosswalk when he was hit and also stated that the defendant van driver, Christine Cooper, was speeding
and inattentive. Without the good private investigation that located eyewitness Morris, it is certainly possible that the jury could have accepted the defendants' argument of comparative fault.

This case also illustrates the importance of conducting mock trials. Plaintiff's counsel utilized the low cost “Chambers” method of mock trials. Six jurors were obtained from a Seattle Senior Citizens Organization and six jurors were obtained from the Washington State Department of Employment Security. They were paid $7 per hour, lunch included. A half day summary of the evidence was presented to the mock jury, with actual testimony from the plaintiff and other attorneys and staff playing the parts of the witnesses. The mock jury deliberated for about an hour and a half and returned a verdict of $864,000, which was within 2% of the actual jury's award of $880,000.

The mock jury was adamant that the accident was in no way Mr. Malkow's fault and readily accepted that he had sustained a head injury and was suffering from chronic physical pain. It was based on the strength of this mock trial experience that plaintiff's counsel turned down defendants best pretrial offer of $400,000.

Based on the “conventional wisdom” of what a mild brain injury is “worth”, defendants best pretrial offer was certainly within the standard settlement range for an average case of this type. However, insurance industry settlement grids of the standard range fail to take into account the characteristics of individual plaintiffs.

Another lesson to be learned from this case is that good clients make for good results. Plaintiff's counsel called a number of 5-10 minute lay witnesses to talk about the character of Nathan Malkow. Mr. Malkow was very close to his three siblings and other family members, a number of
whom testified at trial. A graduate of Western Washington University who had worked his way through school, an accurate portrait emerged of Mr. Malkow as a highly motivated person who had decided to follow the “different drummer” of an alternative lifestyle in the woods. Mr. Malkow purchased raw land in Okanagon County several years ago and built a log cabin. Also, he had risen steadily in the fishing industry and had skippered several boats during the past few fishing seasons.

Mr. Malkow's testimony was riveting as he described the facts of the accident and his belief that he was going to die when he turned and saw the speeding van bearing in on him. He described his struggle against both the limitations of the head injury and the chronic physical pain in very straightforward terms, that asked for sympathy from no one. Even defendants' expert witnesses praised his motivation to recover from the effects of the injury. Because of the sensitive of the nature of the testimony of a number of his treating healthcare providers, Mr. Malkow was not present for a number of days of the trial. Defendants attempted to turn this into a issue that somehow plaintiff's counsel was attempting to trick the jury. This was not successful.

This trial also demonstrates the importance of visualizing both the liability and damages aspects of a case. Plaintiff's counsel worked with a professional illustrator to create “newspaper front page” style graphics that demonstrated the events of the accident. Storyboards were created that illustrated aspects of both the liability and damages case. Though some of these were excluded in the pretrial motions in limine , the most significant demonstrative evidence summarizing the events leading up to the accident was admitted and used by all of the liability witnesses in the case. Several
jurors indicated that this evidence was persuasive in allowing them to visualize the scene of the accident.

During the process of jury selection, a number of hostile attitudes towards plaintiff's lawyer and personal injury cases in general were expressed by some members of the prospective jury panel. In particular, nearly all jurors indicated knowledge of the now infamous “McDonald's hot coffee case” and this caused them to believe that the tort system was out of control. Fortunately, enough jurors on the prospective panel indicated that they would still be willing to listen to the evidence in an individual case and fairly assess liability and damages. The reasoned approach of this jury, despite all the recent bad publicity for the civil justice system, is encouraging.

Though both plaintiff's and defendants' neuropsychologists agreed that Mr. Malkow had sustained mild brain damage in the accident, the effect of this on Mr. Malkow's future was vigorously disputed. Defendants' experts testified that most of plaintiff's problems could be cured with only one additional year of treatment in a pain clinic. Defendants' experts further stated that plaintiff could then easily earn an amount equal to what he had in the fishing industry. The defendants' economist attacked the “lifestyle” choices of the plaintiff, in that he had elected to do seasonal work as a fisherman.

In fact, despite the agreed injuries, defendants' vocational expert initially stated at her deposition that there was no reason why the plaintiff should not “try to return to fishing”. However, she ultimately backed away from this at trial after defendants' physical rehabilitation medicine expert stated plaintiff should not return to fishing. The jury rejected the defendants' position on damages, finding that plaintiff's future earning potential was
severely impaired by the combination of his mild brain injury and chronic physical pain.

This case demonstrates that head injuries, even “mild” ones, are appropriately seen by juries as causing significant disruptions in the everyday life of the victim. In this case, plaintiff's counsel brought in a number of lay witnesses who knew the plaintiff well prior to the injury. They testified with specific factual detail on how the head injury had changed the nature of the plaintiff's daily life. This testimony was documented by extensive family photographs which plaintiff's counsel had obtained from various family and friends.

The case is Nathan F. Malkow v. Christine A. Cooper and Air Data Express , King County No. 93-2-13714-1. It was a 2 1/2 week trial before the Honorable Charles W. Mertel. Plaintiff was represented by William S. Bailey of Fury Bailey. Defendants were represented by Paul F. Cane of Thorsrud, Cane and Paulich.

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