The plaintiff was rear-ended by the defendant — who admitted negligence and was insured under a $1 million policy with State Farm — and claimed a neck injury.
The defendant claimed that the plaintiff did not have a "threshold" injury. The plaintiff alleged non-economic damages only for pain and suffering, claiming that he was no longer able to work, enjoy a sexual relationship with his wife, sleep without pain or participate in his preferred recreational activities, which included deer hunting, riding motorcycles, playing golf, playing pool and working on cars. His wife filed a loss of consortium claim for loss of society and companionship.
The plaintiff had been disabled for many years before the accident, and was receiving Social Security disability benefits and Workers' Compensation benefits at the time of the accident. He had been diagnosed with reflex sympathetic dystrophy (RSD) in his arms, a permanent, painful nerve condition.
The plaintiff testified on direct that, as a result of this condition, the pain in his arms was so severe before the accident that he rated at level 10/10, and that it prevented him from doing such things as shampooing his hair, wiping his bottom and holding utensils. Defense counsel said that, while testifying, the plaintiff held his hands and arms in a lifeless, defensive position in front of him.
Defense counsel noted that all the traditional diagnostic test results of the plaintiff's neck were negative, including X-rays and an MRI. However, the plaintiff presented evidence of an alleged objective manifestation of impairment by treating with Dr. Marvin Bleiberg of the Michigan Spine & Pain Institute in Mt. Pleasant. Dr. Bleiberg was the first person in Michigan to purchase a Digital Motion X-ray (DMX). His facility is staffed by both physicians and chiropractors. Dr. Bleiberg testified that the DMX machine allowed him to observe soft tissue injuries, and diagnosed the plaintiff with a permanent, progressive injury of the ligaments in his neck.
The plaintiff testified that his neck was so painful that he could no longer shower due to the water pressure on his head and neck, and that he could not turn his head to look both ways for traffic when driving without turning his entire body at the waist. Defense counsel said the plaintiff testified with his neck stiff, a grimace, his shoulders raised to his ears and periodically he groaned loudly, usually when defense counsel was talking to the jury, during voir dire and opening statements.
Meanwhile, defense counsel argued that the DMX does not reveal anything more than a traditional X-ray, and that the sole purpose of DMX is to support litigation. He also argued that the plaintiff was lying about his level of activity, as evidence by a surveillance video.
Finally, defense counsel contended that it did not matter whether the plaintiff injured his neck in the accident because the plaintiff was so badly disabled before the accident that the neck injury did not affect his ability to lead his normal life, as required by the Michigan No-Fault Act.
Defense counsel said the plaintiff was bluffed into admitting during cross examination that he had participated in many activities that were not on the surveillance video because the plaintiff had not seen the defendant's surveillance video and hence could not risk lying about his activities.
According to defense counsel, the plaintiff was questioned during cross examination about portions of the surveillance video in which he bent over at the neck to unpack his trailer after returning from camping, jumped on his four-wheeler and kick started it, pushed a dirt bike up a ramp onto a trailer, clapped his "useless" hands together as he called his dog, used his "useless" fingers to clean the cat hair of his pants after petting it vigorously with both hands for several minutes, unscrewed the lid from a bottle and tipped his head back to drink from it, flicked a cigarette into the bushes, carried a bag of groceries up the stairs for his wife while holding her purse with his other hand, and turned his neck 180 degrees over his shoulder while tightly gripping the handlebars of his four-wheeler as he went around the corner and merged into traffic.
Defense counsel went on to say that the plaintiff explained during cross examination that, while DNR records revealed that he had purchased a bow hunting deer license every year since the accident, on the same day and at approximately the same time of day that he had purchased his licenses in the years before the accident (early in the morning on the opening day of bow season), that he was not actually hunting.
Additionally, defense counsel said the plaintiff further attempted to convince the jury during cross examination that, although he was unable to ride his motorcycle due to his RSD or his neck pain, and despite the fact that he was permanently disabled, had been unemployed for years, and in financial distress, he was not riding the brand new Harley Davidson that Secretary of State records showed he bought and paid for in full after the accident.
Moreover, defense counsel said Dr. Bleiberg admitted that the sole training he received in the use of the DMX came from a three-day seminar from the manufacturer, which was given in Aruba. Defense counsel used a projector to show Dr. Bleiberg and the jury an ad from the manufacturer's website which said, "ATTORNEYS, DON'T SETTLE FOR LESS!," and photos of partially clothed women on the beach and drinking in bars.
For four days in September 2005, defense counsel tried an auto negligence case to a jury in Flint. The case was assigned to circuit court Judge Ransom, but it was handled by retired Judge Thomas Brown from Ingham County.
The plaintiffs demanded approximately $850,000 from the jury. The jury awarded the defendant a no cause.
Finally, defense counsel noted that surveillance was critical to success in this case. Instead of using a videotape, however, the surveillance video was re-formatted to a digital file so that the images could be stopped precisely and magnified for use during cross examination of the plaintiff. The defendant brought a Daubert motion to keep out the DMX but the motion was denied.
Type of action: Auto negligence
Type of injuries: Soft tissue neck (ligaments); pre-existing Reflex Sympathetic Dystrophy (RSD) in arms and wrists
Name of case: Bailer v. Croucher
Court/case no./date: Genesee County Circuit Court; #03-75976-NI; Sept. 26, 2005
Name of judge: Thomas Brown
Verdict: $0 (no cause for action)
Attorney for the plaintiff: Withheld
Attorney for the defendant: Michael Edmunds
Name/city of most helpful experts: Plaintiff's experts — Dr. Marvin Bleiberg, Michigan Spine & Pain, Mt. Pleasant, expert / treater (PM&R); Dr. Todd Lininger, Waterford, treater (pain management); Defendant's experts — Dr. Neil Friedman, Flint, IME / expert (PM&R)
Insurance carrier(s): State Farm
January 9, 2006
