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Paul's Jury Experience April 2-6, 2012 I will not go into the jury selection process.

After the jury was seated we were given several rules and guidelines, one of which was that we would not have access to the testimony during deliberations. That meant that we would be solely reliant on our memories of what was said and any notes we took on courtprovided steno pads that never would leave the courtroom. The lawsuit involved an under-insured motorist claim for a traffic accident on October 31, 2007. (Excuse the many upcoming dates, but they become important.) The plaintiff was Ms. S, a 5'1, 100 lb., 35 year old woman who appeared to be in her early teens. The defendant was State Farm Insurance Company. Ms. S was claiming lower back and tailbone injuries as a result of the accident. The initial accident occurred when a car in front of Ms. S's Honda swerved to the left of the driving lane and stopped to make a left turn. Ms. S steered to the right and began to stop as well. A contractor in a Ford Econoline van was behind her, saw what was happening, applied his brakes, but didn't stop completely before hitting Ms. S in the rear. He was found responsible for the accident via a previous lawsuit that was settled, but we were not allowed to know the details of the settlement. We were only told that Mr. Contractor's liability was no longer an issue. We were told this involved under-insured motorist insurance. I didn't understand the ramifications of that information at the time. Dr. Oh, a physiatrist, was the first witness called by the plaintiff. Dr. Oh testified that he had treated the plaintiff as a patient, beginning in 2003-2004. She had neck and shoulder pain, for which he gave her cortisone injections and they were resolved. He also mentioned from her medical records that she had a chronic history of migraine headaches, suffered a DVT in 2006, had muscle spasms in her buttocks in 2004-2006, and had complained of lower back pain in 2004. In early 2007 Dr. Oh treated Ms. S for an injury to her tailbone resulting from horse riding. He injected her tailbone with steroids and she reported the pain was resolved. He stated that she saw her PCP the day after the accident and was referred to him a week later. Dr. Oh saw Ms. S 10 days after the accident when she reported mild pain in her lower back and radiating pain in her left leg. He ordered an MRI of her lower back and gave her a steroid injection. The MRI indicated a slightly bulging disk between L$ and L5. Three months later she reported pain of 2 on a scale of 1-10. Dr. Oh gave her another steroid injection and three months later she reported pain of 1 on a scale of 1-10. He saw her a couple of months later and she reported that she had no lower back pain. In 2010 Ms. S saw Dr. Oh again, reporting radiating pains in her right leg, but no pain in the lumbar region. However, Dr. Oh again gave her a steroid injection. A couple of months later his notes indicated that she was pain free. Dr. Oh's testimony had been stopped several times for objections and we waited quietly while the attorneys and judge went into chambers to settle the issue. The result was that several times the track of questions was stopped abruptly and not continued. These questions clearly related to which medical records he was allowed to talk about. It became obvious that we were not being given a view of all the medical treatment or records during the time before or after the accident. Dr. Kutsy, a neurologist, testified next via videotape. Dr. Kutsy had been hired by the contractor as an expert witness in the first trial. Dr. Kutsy said that he had examined Ms. S at that time and found some slight neurological impairment that implied a bulging disc between L4 and L5. He confirmed this by looking at the 2007 MRI and another taken in early 2010 by a back surgeon Ms. S had consulted. Dr. Kutsy said the two MRI showed degenerative disk disease. He affirmed the surgeon's diagnosis that surgery would solve her back problems. However, Ms. S told him that she did not want to have back surgery.

Next up was a medical billing professional who referred to herself as a medical billing expert. However, we heard no qualifications for her other than she had been in the medical coding/billing field for 15 years, owned her own company for 13 of those years, and for the last 2 years only worked as a professional witness. She told us she had gotten a quote from the surgeon for the proposed back surgery, checked three area hospitals for what their costs would be, and gathered information relative to ancillary treatments needed before and after surgery. She put all of this together and came up with a figure of $49,000 for the proposed back surgery. I could have done the same thing in about 30 minutes on the internet in my lounge chair at home. The primary purpose of this was to begin to set a dollar figure in our minds. Ms. S's husband testified next. He was asked about their lifestyle prior to the accident. He reported that they liked to take driving trips and walks. He said his wife's passion was horseback riding. However, he said she stopped riding the horse after a riding accident in early 2007. When asked what his wife couldn't do after the accident he stopped for a full minute without speaking. Finally he said that once when they were going to Portland they had to stop and turn around in Tacoma because her back was hurting too much. Ms. S's attorney pressed him for something else and he said she was unable to ride her horse since the accident. When pressed again he said that was all. Mrs. S took the stand and told us about the accident. Things she added to what we already had been told were that she had her hands at 10 and 2 on the steering wheel, bracing because she saw the van coming in the rear view mirror. She said she was still rolling slightly at the moment of impact. She was very clear that her head did not move or hit the head rest. She did not require medical attention at the scene, police were not called, and she drove her car away. We looked at pictures of the cars. The plastic bumper on her Honda had a clear, but faint imprint of the contractor's license plate on its right side. The Ford's license plate holder was cracked. She confirmed that was the extent of the damage. Regarding her medical history prior to the accident she denied ever having lumbar pain before the accident. She said she had been having migraines for over 15 years and had standing prescriptions for Vicodin and a muscle relaxant that she takes as needed. At some length she described her DVT experience in 2006, when the blood clot in her leg traveled to her lungs where she had an embolism. They placed a filter in her artery via a tube run up from her leg to filter out the embolism. She said she had been told that the DVT was a side effect of the birth control pills she was taking. She denied ever having lumbar pain before the accident, dismissed her previous neck pains as minor, and said her buttock muscle spasms were from sitting too much. She also was asked at some length about the horseback riding accident in early 2007. Her horse unexpectedly jumped and she rose high off the saddle, her butt coming down on it as the horse was going up. The result was sever tailbone pain and the treatment Dr. Oh had told us about. She said the pain resolved and told us that she continued to ride her horse up until the car accident. (A different story than her husband's.) Under questioning she also revealed that she had another fender bender accident in 2007, six months before the one in question. However, she said she was not injured in that accident. Ms. S reported that immediately after the accident she had no pain or symptoms of injury. However, the next day she saw her PCP and complained of neck pain, lumbar pain, and pains in her left leg. She repeated the treatment history that Dr. Oh had given us. She said that she had not wanted surgery when the surgeon recommended it because she was afraid of the DVT risk during surgery. However, she stated that she wanted surgery now. As to lifestyle changes Ms. S became quite teary when she told us she could no longer ride her beloved horse. She said riding horses meant everything to her. Upon cross examination she said she had recovered from the tailbone injury and was riding her horse until the car accident in question. This differed from what her husband had said. When her attorney pressed for other lifestyle problems she repeated the story about the aborted Portland trip and said she was unable to play games

with their friends when they traveled to Lopez Island. Her attorney asked her about intimacy with her husband and she blushingly hid her face. She finally mumbled that they were no longer close. Her attorney clarified if that meant sexual relations and she quietly said yes. When he asked whey she said, because it hurts. No further questions. Finally, Ms. S was asked about work. She lost her job as a teacher the spring following the accident and admitted it was because of differences she had with the principal. Her contract was not renewed. However, she insisted that teaching was particularly difficult on her back because teachers must wear high heels and stand all day long. She continued to work as a substitute for two years after that. In 2009 and again in 2011 she took 4-6 week trips to Korea to teach English. This involved 12 hour flights and standing while teaching. She said she only did it with the aid of the Vicodin and muscle relaxants (which weren't prescribed for the back pain). The contractor testified briefly. He confirmed that he had taken photos of both vehicles the day of the accident. His version of events didn't differ. He thought he was going 5-10 mph when he hit Ms. S. Dr. Murphy was a neurologist hired by State Farm Insurance. In addition to reviewing Ms. S's medical records since the accident, he gave her a neurological exam. He found no neurological deficits. He said the MRI's showed degenerative disease of the L4-L5 disk. He further cited research and clinical studies about the common incidence of such disease in all adults age 30 or over. He explained the difference between a bulging disk, which was clearly shown in Ms. S's MRI's and a ruptured disk. We got to see lots of diagrams of disks in various state of tearing and compare them to her images. Dr. Murphy also cited clinical research about the effectiveness of various treatments for a spectrum of L4-L5 back problems. He was firm in stating that the sort of common bulging in Ms S's images would not benefit from surgery. He further testified that previous medical records indicated her DVT was a side effect from birth control pills. If she stopped taking them there would be no DVT risk during surgery. Regarding the use of steroid injections, Dr. Murphy cited studies that demonstrated that they are no more effective than placebo in relieving lumbar pain. The plaintiff's attorney questioned him and disclosed that he makes about $650,000 a year, about 80% of which comes from testifying. Next to testify was a bio-mechanical engineer from the UW Medical School. He runs a research lab at Harborview that specializes in what happens to the human body during different kinds of automobile accidents. (Who knew there was such a specialty?) He explained the physics involving transfer of energy from one moving body to another when they strike. He drew diagrams of the car and driver, showing that the spine is very well supported if the driver is erect and facing forward as Ms. S said she was at the time of the accident. The seat belt and shoulder harness add to the stability. The only part of the body that is not protected from motion is the neck and head, which she said didn't move. The engineer then testified about his examination of the vehicles and his research about crashes. (They actually put student research subjects in vehicles and crash them!) He took pictures of the vehicles last year (Neither has been repaired since the accident.) and he looked at the photos taken the day of the accident. He explained in great detail about the physic involved in plastic bumpers and the foam undercore absorbing energy. There were formulas involving speed, weights, and G-forces that resulted in his calculation that the maximum speed differential between the two vehicles at impact was 6 mph. At that speed there would be no movement of the head and the spinal column would be unaffected. Ms S's attorney put a paper cup and a full water pitcher on the table and flicked them both with his finger. The paper cup flew away and the pitcher didn't budge. And he asked if we were to believe that a small person like Ms. S wouldn't fly like the paper cup during a minor accident. The engineer proceeded to get into a complex explanation of how energy acts proportional to the size/weight of the bodies on which it is acting. He also pointed out that neither the paper cup nor the pitcher were wearing seat belts of shoulder harnesses. The plaintiff's attorney

questioned him about income and elicited that he makes about $350,000 a year, of which comes from testifying. Ms. S's attorney during final arguments attempted to tell us about the financial picture as it relates to under-insured motorists. However, he was stopped by an objection. He summarized what we had heard that favored her having been injured in the accident, but really focused on the emotional aspects. He frequently waved a hand toward his client, sitting with her head down and her hands in her lap like a student sent to the principal's office. He told us that if we didn't find in her behalf we were calling her a liar. He specified that they were asking for $40,000 for expenses incurred so far, $49,000 for back surgery, and $350,000 for pain and suffering. Finally we the jury were given the case. Our only job was to assign a dollar figure to Ms. S. We could do this on the basis that the accident caused an injury or on the basis that the accident aggravated a preexisting condition. In the latter case we would then have to decide the extent to which the accident aggravated the condition. However, our only verdict option was to give her money or not. The verdict was to be determined by vote of 10 or more of us. Our first task was to select a presiding juror. When the door closed one woman pointed at me and said you should do it. Everyone else said yes before I could reply. I told them that I didn't really want the responsibility and hoped someone else wanted to do it. No one did and I accepted their 11-1 vote. I asked that we go around the table and give our impressions at that moment. We were only able to get three reactions before the bailiff told us it was time to go home, so we continued the next morning. To summarize the jurors' initial feelings: 3 people felt that the accident did not cause or aggravate an injury, 2 people felt that she had been injured in the accident and should be given all the money she was asking for, 5 people felt that the accident had aggravated an old injury and she should get some compensation, and 2 people were undecided. My statement was that, while I had no doubt she has medical problems and is in pain, I was not convinced that any of it was caused by the accident and would not vote for any financial award. I suggested that we compile a chronological summary of the evidence as a place to begin. The rules were that at least 10 of us had to agree on an item for it to be placed on our chronology. After a couple of hours we had a 2003-2012 list of medical evidence, statements, and physical evidence. We took a break to ponder this and asked for another round robin to see what we each were thinking. Now we were 4 people for no effect from the accident, 2 people for causation of injuries, 2 people for aggravation of injuries, and 4 people undecided. At this point four of the jurors began to make statements about the futility since we seemed very divided. They wanted to get home, get back to their jobs, etc. Two of them were suffering some severe financial hardship due to lost wages. Four people were getting pressure from their employers to get back to work and even were being asked to work in the evenings to make up lost time. They said they would agree to anything reasonable just to ensure that we didn't have to return the following week. One of the jurors jumped on this and suggested that we try to see if 10 people could agree on what would be reasonable. After several attempts to do this with various lists and discussion about causation or aggravation we took another poll. We now stood at 2 people for no effect, 2 people for causation, and 8 people for aggravation. It was openly stated that compromises were being made so we could just get out of there. One of the jurors suggested substituting money as a proxy for causation and aggravation since we now had 10 people willing to give some money. We worked through several ways to cut and dice the $439,000

Ms. S was seeking. Finally we arrived at each assigning a dollar figure to the three categories: pre-trial expenses, surgery, and suffering. This was done by secret ballot, which we had begun using earlier. The totals were added up and we found 10 of us agreed to no compensation for suffering, so that was now off the table. After much discussion we decided to take the remaining figures and average them. The 12 numbers for pre-trial expenses were added and divided by 12, as were the 12 for surgery. The result was an average of $52,012 for combined compensation for pre-trial expenses and surgery. Ten people voted in favor of this as the verdict. Myself and the other stalwart for no damages voted against it. I reported to the bailiff that we had a verdict. On late Friday afternoon I gave the verdict to the judge in the presence of the two attorneys. Mr. and Ms. S were not in the courtroom. The judge read the verdict and then said she would poll the jurors. She would ask us if this was the verdict of the jury and if this was our individual verdict. The first three of us polled answered No to the second question and I looked up to see amazement on the attorney's faces, puzzlement on the judge's, and the young man next to me was bouncing up and down waving his hand to try to speak. When all of us had been polled we had 12 saying it was the jury's verdict, but only 7 saying it was their verdict! The young man was recognized by the judge and explained that what he meant was that although he had voted for that verdict he really wanted something else. He voted that way as a compromise. Yes, he said that was his vote. The judge restated the questions to make it clear what we were responding to and re-polled the jury. This time she got the required 10-2 vote and we were done after five days in the courthouse! The judge invited us to return to the courtroom after adjournment to meet her and the attorneys, ask questions, and give them feedback about their performance. I spoke to the State Farm attorney and told him that his expert witnesses were quite compelling for me. However, I told him that they were so slick and polished that they were distrusted by many of my fellow jurors who simply were prejudiced against intellectuals and high incomes. I suggested that he either work with them on their affect or find some other expert witnesses. Then my other holdout juror and I asked him about the decision. He smiled and said, It means nothing. Of course we asked him to explain. First, State Farm was Ms S's insurance company! It seems that in the first suit the Ms. S received $25,000 for medical costs and $75,000 additional compensation for any future costs from the contractor's insurance company. Then Ms. S asked her own insurance company for additional money under her under-insured coverage and was denied. Therefore, she sued her own insurance company. However, due to the first settlement, she could only receive compensation for any amount over the $100,000 she had already received. Because our verdict was for $52,012 she would receive nothing! In the end the two of us who held out for no compensation got the justice we thought the case deserved. Finally, I spoke to the personal injury lawyer representing Ms. S. who said he thought I was in his camp all along. I told him he had that quite wrong. I also told him that his emotional demand that we would be calling her a liar if we found no injury was insulting. He asked, it was over the top? as if he was an actor asking about overacting. I concurred. I also told him that his attempts to demean scientific evidence might play with some jurors, but not with all and he should be more mindful in the future about using such tactics. I doubt that he was listening.