Two Question Verdict Form. $2.4 Million Verdict. Federal Court.

Tune in to Colorado Trial Lawyer Connection as Keith Fuicelli welcomes Denver Personal Injury Attorneys Laura Browne and Sean Dormer to the show. Laura and Sean discuss how they won $2.4 million for their client against State Farm after submitting a two question verdict form with zero elements stated about their claims.  

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Episode Snapshot

• Who are Laura Browne and Sean Dormer?
• Procedural posture of their $2.4 million case against State Farm 
• Sean’s tactics during voir dire in this case
• Laura’s opening statement for the case 
• Sean’s closing statement for the case 
• The reasons for using an IME doctor
• Having the client’s family as witnesses 
• How they would argue impairment differently versus how they did in this case.

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.

Welcome to the Colorado Trial Lawyer Connection, where Colorado trial lawyers share insights from their latest cases. Join me, Keith Fuicelli, as we uncover the stories, strategies, and lessons from recent Colorado trials to help you and your clients achieve justice in the courtroom. The pursuit of justice starts now. I am thrilled to have the opportunity to talk with Sean Dormer and Laura Brown about a fabulous verdict they received in federal court not too long ago. I'm Keith Fuselli, and the whole purpose of this podcast is to help fellow Colorado trial lawyers do a better job in the courtroom. And hearing the amazing verdict Sean and Laura were able to obtain in federal court, I couldn't wait to get them on. So welcome Sean and Laura.

Thank you. Thanks for having us. Thanks,

Keith. So Laura, I don't know if you and I have spent much time together. I don't know much about you. How is it that you came to become a plaintiff's trial lawyer?

Well, I am from Missouri, so I did not grow up in Colorado, but I've been here for about 10 years. I ended up starting at the ags office after graduating from Mizzou. So I started at the Missouri Attorney General and I was able to do some habeas corpus work and some special prosecution work. It wasn't completely fulfilling to me. So when I had an opportunity to move out here to Colorado and move in with a friend of mine from a few years back, I just took that. I had no job, I had no prospects, I had no plan. I was 26 and wanted to get out of Missouri, so I wanted a job that I could help people and that was really my only necessity. I didn't feel like the work I was doing prior was actually getting to that end despite what I was sold in the interview process. So I was looking for a job where I could help and I ended up getting a job here in Denver with a large personal injury firm. That's where I started out and I learned the ins and outs and it kind of resonated with me. So it was kind of luck and a little bit of spur of the moment spontaneity to come out here and it's worked out so far.

Obviously you're at a wonderful firm in Dormer, Haring. How is it that you came to them and how long have you worked there?

I've only been here at this wonderful firm since about April of this year. So I'll say I think I paid my dues by working at a couple of the large personal injury firms in town, and I have nothing but great things to say about those firms, to be honest. I learned a ton. Some of it is like dog ears, the firms like that, where you're just learning so much and getting so much experience in a short amount of time. So I sharpened my teeth there and gained some excellent mentors, really great network in this community. And when the opportunity came up to work with Sean and Casey, who I've known for years, just through C T L A, it was the right place, right time, I think, for both of us. So really happy to be here.

All right. And Sean, what about you? Have you always wanted to be always known? You kind of strike me as the kind of person who came out of the wound knowing he was going to be a trial lawyer. Is that true?

It's not far off. I definitely was told I should be a lawyer a lot growing up, which I think is a nice way of saying you argue a lot with people and I would pick fights with kids at the bus stop for being mean to other kids. It's actually how I ended up in my first, back then it was a fist fight. I'm not proud of it, but I would get myself in trouble growing up, just running my mouth. And so now here I am.

Well, I am so happy to hear about your verdict. Why don't you tell us a little bit about the case and sort of the procedural posture that led you all into federal court?

Sure. So this is the case I actually had at my prior law firm ended up coming over with me to Dormer Haring. So I've been with this client for a few years prior to trial. Excellent client, wonderful person, wonderful man. He's in his sixties. He was in a car crash back in February of 2019. It was a pretty bad crash, bad property damage pushed into a median on the highway. So bad damage, uninsured driver caused the crash. So this is a pure case with our client's own insurance company, which was State Farm. So our client ended up injured. He didn't end up taking an ambulance or do any ER or urgent care, but he was injured. He followed up, received care, and ended up needing injections in his neck and his back. So when we were on the case with him in pre-litigation, we were just kind of watching his treatment, seeing the extent that might be necessary.

We provided all of that to State Farm in the context. So they knew straight away that it was pure and there was no other coverage available. They told us there was a $250,000 policy just personal to the car. So that's already a great policy for an individual. So that was good for our client. As we got closer to the statute of limitations, we had been sending these medical records and bills keeping State Farm updated. They had been in turn paying Fisher Payments. So when they got medical bills and records for this treatment, they agreed that they were benefits under the policy and sent those payments. They never disputed the payments or their bills. We ended up filing suit when we were getting a little bit closer to the statute of limitations. At that time, in my viewpoint, there had not been bad faith and we've been very upfront and transparent about this with State Farm.

So I didn't file bad faith because I had no good faith reason at that point to do that. Once we got into litigation, my client was still treating. So these injections, this physical therapy, chiropractic care, it was ongoing. So we got an expert, Dr. Ogan, Dr. Barry Ogan, who met with our client and determined that he would need these ongoing into the future. He also said that he had impairment, so we got another expert, ACU ed to talk about the value and what those future medical bills would be when we disclosed those items to State Farm.

Let me jump in real quick if it's okay, only because I don't want to keep the listeners in suspense because as you're telling this story about this case, I'm thinking, okay, this sounds like a 50, a hundred thousand dollars case, but your end verdict on this case in federal court was what?

The end verdict was 2.4 million. Wow.

Okay. So let me kind of back up and go through some of the specifics on how you all ended up with that amazing verdict. And my first question to you is, when you filed suit, you mentioned there was no bad faith because the statute was coming up. How did you plead the claim for benefits? Was it a breach of contract claim or did you plead it as something else?

I thought a lot about this question at the time because I've heard different advice and guidance on how to do these types of cases. I ended up pleading it dually. I did a breach of contract claim and also a claim for determination of benefits under ten four six oh nine. So I couldn't choose. I was indecisive and I did both. It came to be, I thought it could have been an issue later on when we were getting closer to trial, I thought I had to choose because I thought there could be some issue. But we ended up never choosing and just presenting both, including both claims. At the time of trial,

When you went to verdict, were there two verdict forms or, because I know in reading about your case before you had this amazing verdict form, which I believe had two questions. How did you go from two different claims for relief? So to speak to a two question verdict form,

This was also an interesting process. So as I was getting this case ready for trial just this spring and about jury instructions, thinking about the verdict form, thinking about these claims that we had on the complaint, I had a lot of questions. I reached out to bad faith experts in C T L A, Michael Rosenberg and Mark Levy and talked to people about what to do going forward. And I got some advice that ended up with me drafting a verdict form that I didn't actually know if it had ever been accepted before in this context of a claim. So neither of the claims were actually on the verdict form. Just to put that out there first, there were no elements of breach of contract on our verdict form despite it being a breach of contract case. So our verdict form had question number one was plaintiff, did plaintiffs suffer injuries, damages, losses from the car crash of February 10th, 2019, yes or no?

Next question, the three part question giving us the value for each type of damages. What was the economic damage? What was non-economic, what was impairment? And that was the entire verdict form. I was pretty surprised that this verdict form ended up to be stipulated. There were no issues from the other side. On this verdict form, when I spoke with my opposing counsel, he said, and he really wanted to reiterate that this is a damages case. This isn't a contract case. Essentially this is we're asking the jury to assess damages. So he was actually pretty on board with the verdict form because that was getting to the meat of what we were asking the jury, which made it a lot easier because when we presented it to Judge Blackburn, little did we know, but I think he said Sean can correct me. He recoiled in judicial horror looking at this verdict form when this was a breach of contract case and there were no elements from the jury instruction breach of contract. But then he said, this was at our pretrial conference. He said, the more I looked at it, the more I saw its brilliance and how it's perfect for this kind of trial. So the last piece about that is that he did ask us again at the end, right before we gave the jury instructions to the jury, he confirmed everyone is okay with this verdict form. We all agree that this is the appropriate verdict form for this case and got that on the record as well.

So the defense, and it was Carl Chambers, correct? For State Farm on this case?

That's right. And Frank Patterson technically, but he did not participate. Okay.

So the Defense State Farm, Frank Patterson's office stipulates to this verdict form. And did I also read that they stipulated that the amount of coverage came into trial? Sean, is that you're smiling. Am I right that I read

That. That's another interesting piece.

Yeah. When I read that, I think that the answer is yes, somehow the amount of that coverage came in, and I was floored in plaintiff lawyer Jubilance that you somehow were able to get them to stipulate that the amount of coverage came in. So either Sean or Laura, how did that come to be?

Yeah, that's great because I mean, I mentioned the $250,000 policy, but it came out in litigation that there was a million dollar umbrella in this case. So we definitely wanted the fact of 1.25 million in coverage in front of the jury for a lot of different reasons that probably everyone understands here. But I was nervous about being able to get it into evidence because of relevance issues. There's no bad faith claims in this case, all of those things. So I put it in a stipulation on the pretrial order because it was true and no one could deny the fact of the two policies. So I included it in my proposed stipulations fully expecting that it would get redlined by opposing counsel. I also included it, this is kind of a weird part, but I included it in the jury instruction of stipulations. I forgot the number that it is, but there's a jury instruction that just lists the stipulations.

So my opposing counsel objected to the jury instruction that included both that amount and the fact of the Fisher payments. Those were the two big issues that we ended up getting in front of the jury that we were unsure if we could. In any case, those two items were included on the stipulations in the P T O and they were not redlined. They were never removed by opposing counsel. So I fully prepared at the pretrial conference to hear Mr. Chambers stand up and say, or I'm sorry, not at the pretrial conference, but the first day of trial because they were adopted into the pretrial order, there was no issue brought up at the pretrial conference. So I knew on the first day of trial that Carl Chambers was going to get up and say, we object to these stipulations being read to the jury. We don't any number of arguments the first day of trial that you hear, I was prepared for that, and it happened as expected. He got up and made that argument. Judge Blackburn was not having it. I mean, he would not even entertain that argument because the pretrial order in that courtroom, and in most courtrooms, that is Bible. I mean, that is what has been agreed upon by the parties. So the argument wasn't really entertained and it was struck down and those were stipulations read to the jury. It made a huge difference, I think, in this case. And just setting up the context of broken promises and expectations of an insured.

One of the questions that I have as you're mentioning all of this, and I don't want to go into the bad faith potential that has arisen out of this, but it seems like it's a real problem for State Farm that they did not advise you about this umbrella policy until you're way deep in litigation and go into as little or as much detail as you want. But is that something that you plan to raise at a later date?

So kind of a difficult question, but we did find out about the umbrella policy soon enough that it didn't figure in as much as other issues to our analysis. So far, it's a piece of everything I would say, but we amended our complaint immediately to include the secondary State Farm entity because it's a whole different entity that issued the umbrella and we were aware of it at that time. We are really talking about bad faith issues arising after our disclosure of experts when they didn't have any contradictory expert opinions or evidence to dispute their opinions and their recommendations in the future medical. So yes and no, I would say

Fascinating. Fascinating. Alright, well let's talk a little bit about the actual trial and Sean or Laura, which one of you did voir dire, assuming you were allowed to do? Okay, so you got to do attorney conducted voir dire?

Yeah, just a little bit. He really limited it by time and I can't remember if it was, I think it was 15 minutes. So it was really short.

And did you have eight jurors or how many jurors did you end up with in your panel?

I think I remember I was having nine or no, you know what? I can't remember. Laura, can you remember? I just had another federal judge tell me another number and now I'm mixing it up.

Maybe it was an alternate. I don't,

There wasn't any alternate. He just sat. Just sat, all

Of 'em. So tell the listeners a little bit about what you thought. Did Judge Blackburn do, judge conducted voir dire? Did you have any input on the questions that he asked and what you thought about that and a little bit about what you did with the limited time that you had?

Yeah, so he had a really interesting process and I actually was a pretty big fan of, as it turned out, I generally am a little suspicious of judge conducted voir dire after I've seen some state court judges in personal injury cases with no anticipated police testimony, ask things like, what are your feelings about police? So not super relevant, just kind of phoning it in. But he did anything but that. He asked a detailed set of questions, and I think our favorite one was something along the lines of, if you were in our position, would you have issues with you serving on the jury? Something like that, right? And he continued to loop that through. He did it also in a way that really was open to a reasonable disagreement or not necessarily coming at the case with the same philosophy between anybody in the room.

And I think he really made it easy for people to speak up. He had a tone that was both authoritative and expected people to participate. It was also businesslike and moved things forward efficiently. And also was very much just kind of almost a r sense of humor about things where you just knew that he was never going to punish you for anything that you said as long as it was true. And if you tried to give him bss, he would cross-examine you about it. So it was a really good judge's voir dire. You asked also if he accepted any questions or suggestions. There was a process where some of that happened, but it wasn't completely, I guess it didn't feel like an assembly line, if that makes sense. So he asked us, he ordered us to turn in our proposed word to your questions in advance, and he right, anytime a judge asks you to do something, it's like a joke, right?

But he wanted us to submit our questions in advance, and he told us at the pretrial that he reserved the right to steal any from us and may or may not give us credit on the record during trial, but just know that he appreciates it in advance. Okay. So we turn in our questions and I took it seriously, wrote a whole set of questions, no possible way. I was going to get through all of them in 15 minutes, and I felt like he probably didn't directly steal any of my questions. I'm not going to claim I gave him any ideas at this point in his career, but he did a lot of essentially the same things that I wanted to do with the first couple chapters of my voir dire. So for example, I have gotten a little bit sideways with the idea of giving a speech at the beginning of voir dire, oh, ladies and gentlemen tell you all about bias and how important this process is and what this case, et cetera, et cetera, et cetera.

Some judges are okay with that if they give you a mini opening. I think then there's permission and it's part of the process and great, but also had people object to it, get the objections sustained, and then it looks like we're trying to push the envelope and waste people's time and we're wasting our own time. So I wanted to start off with a set of questions about, hey, who here has a set of unique experiences, beliefs, emotions, I can't remember exactly how I phrased it, but something like that that they bring into this room or any other room. And then who here is going to still have those when they go to make important decisions? Who here uses those as an advantage in decision making and just getting, you're asking questions, but you're getting people to agree to the process and understand the process. Didn't have to do any of that because the judge did such a good job of it.

So I think the hardest thing was trying to figure out what to skip. I had to skip so much at the beginning and ended up asking a lot about responsibility and the value of pricelessness and kind of how people would come to the challenge of putting a value on something that's priceless. I mean, it's the thing that we as lawyers on either side or as insurance adjusters are supposed to be good at, and we aren't necessarily supposed to just pawn off on a jury. And yet the jurors can become such experts at too, if they are guided well, right, if they're given the materials. And so I really was curious about what are their philosophies coming in And from there, I am a big fan of some Sari de Lama's work on jury selection, basically taking a positive view towards it, treating it like it's a job interview because it is, and looking for people who would be good candidates because in looking for them, you can also find out people who are not.

But you can have a good discussion about some of these beliefs. And I really think the purpose of word deer is figuring out what are the beliefs, experiences, approaches that people have, what's their way of thinking? That's how we intelligently exercise our peremptory challenges, I think is the word from the case law. And then hilariously, about two minutes before the end, I looked at the clock and I thought, oh, I have 30 seconds left, and I was wrong. So I looked up and I said, I think that's it. And the judge said, I think you have a couple more minutes, so keep going. So that was a nice little reprieve from a mistake I made. But I think the more interesting piece perhaps was actually just thinking about some of the strikes, and I think Laura was our observer, and I didn't really have to take notes at all. It was kind of her role as lead counsel at trial. She was responsible for really sitting and listening to these people and trying to figure out who was going to be good at sorting out this problem, this dispute. So

Fantastic. So you get your one quick question on jury selection. Did you talk big numbers? Did you do try to employ any anchoring in the terms of anyone here going to have a problem awarding millions of dollars or talk numbers at all in voir dire?

I'm not opposed to it, but I didn't, I think I didn't have enough time. And the biggest thing I did was talking about the analogy of, look, you break it, you buy it. That's something we're taught early and it's kind of the undergirding of the entire tort law system. And so I need to know that people aren't going to nullify. That's pretty basic. You're not going to say, oh, I'm anti that concept, because if you're anti that concept, it's going to be really hard to follow the law. And then it gets more difficult when you're talking about things that don't have established prices. And so we talked about what do you do if you break something priceless? Does that mean the price goes down if it's harder to judge, if it's harder to value, does that mean we stop and don't try? Does that mean we put less work in?

And we had certain people saying, no, that means you put more work in. It's more important to listen. It's more important to pay attention and listen to the evidence. It's more important to have clear evidence about it, even if it's hard evidence to hear. And I think at that point, I kind of thought to myself, I think we kind of know who is going to be okay with really just not putting arbitrary judgments on big numbers because they're big and scary and people who are going to listen to the evidence. And then there were people who kind of were, I think there was, and Laura, maybe you can speak to this, about some of the reasons we didn't feel like people were as good fits, but I think I got some pushback from other people who really didn't get it, didn't really understand it, but mostly it seemed to be coming from a place of deep discomfort about the process, about the idea even of doing it. And that makes it hard to do this job as a juror. So

Well, and I think one thing that's important that distinguishes this kind of trial versus a regular car crash case or something where you're dealing with an individual defendant is thankfully we had State Farm on the caption. So I think that gives an advantage. Obviously if you can include a corporation or a massively well-known multinational billion dollar company, people are more apt to already be thinking, this could be a big deal, this could be more money, because we know they can pay it. So I think if you are going up against an individual, you don't have to, but it might be a good idea to look at it differently and make sure to talk about that in voir dire if you do have the time. But we just had that inherent advantage.

Well, obviously it worked. Yeah, I was just going to follow up on what Laura said. I mean, there's a huge bias that people have that prevents them from rendering true verdicts against individuals. And we think that Rule four 11 is necessary to balance the scales. In fact, it's not. It actually tips the scales really heavily against justice and against the concepts of tort law that we've followed for so long. And so, yeah, I mean, I'm fully on board and I think Laura makes a really good point, which is if you've got an individual defendant's defendant, you have to find those people who are going to judge the case out of bias, prejudice, sympathy for the defendant, not knowing that evidence that there is insurance. Where in reality, corporations get fair trials every single day they did in this case. And I don't think in this climate, in this day and age, people give verdicts against corporations just because they know they're rich. I think they are able to give verdicts against corporations that are justified and true because they are not worried about the defendant. They're not sympathetic to the defendant, they're able to follow the law. So yeah, I mean, I think that's a really good distinction there that we probably shouldn't, shouldn't just ignore. So

Quick question, last question on voir dire. Did you have individuals that were stricken for cause because they were truthful in the sense that, look, this is an insurance company, they should just pay anyone that you sort of use that as an opportunity to do the Raleigh, Hey, if you're not right for this case, you can't be fair to State Farm. We don't want you here. How did that play out, if at all?

So I'm a little fuzzy on my memory on some things. I know there were a couple cause challenges for issues of life getting in the way, right? Undue hardship or whatever it's called. There really weren't anyone, there wasn't anyone in the panel who seemed to be a true believer against personal injury cases. And I think that's kind of another thing that you have to recognize in an insurance case. You're talking about a breach of contract. It's a business relationship in a lot of ways, and it's kind of, you paid for it and you have the right promise paid. And I don't think we ever really, we alluded to that bias, that prejudice in closing, but no one really spoke up and said, I really can't do this. In fact, there were a couple of funny things though. There was one younger man who had, I think he was an undergrad, and he was funny because he said that he was going to have a hard time not just finding against the lawyers that he thought did a worst job because he really knew better because he had done mock trial in undergrad, which we thought that was funny.

But he said some things on either side. He also said that I might find against the corporation because they're a corporation and I don't like those. And so we thought maybe he was just trying to get off the jury. That was kind of one, there were actually two people who, one of them was the wife of a friend of mine from high school I hadn't seen in 10 plus years at least. And so State Farm moved to challenge her for cause even though she said truthfully, Hey, these men in my life aren't so good at keeping up with their friends, which I thought that could have gone either way. But of course she said, I have no biases whatsoever, no leanings. And they moved to challenge her. Also moved to challenge. We have a colleague who's a plaintiff's lawyer now, but is a former, very successful malpractice defense lawyer as well.

So he's done both sides and he and his wife don't talk about work. His wife ends up on the jury panel. They consciously don't talk about work because of the stress we have and no one wants to bring their work home and hey, you know what? We process things differently. But that's their process. She testified truthfully, incredibly, and then there was a motion to challenge her. And so a lot of the work was actually strangely in this case, defending kind of these silly, I thought frivolous challenges for cause that the judge rejected in turn without a whole lot of waffling either way.

Great. Well, I love the story. Yeah, go ahead Laura. Now please.

There were, I was just going to say there were I think one or two people that said that they could not be fair because they were State Farm insureds. So Blackburn attempted to rehab them. They said, no, I can't. And they were dismissed by him. So he did get into that questioning before Sean even got up. He did some of that. And then Carl did do some questioning, are you going to find against us just because we're State Farm, that sort of thing. So it was broached. I don't think Sean spent his time on it, which made sense given how little we had. But

I just love the story about, in my mind, it's the college kid who knows everything on the jury panel and he's almost too smart to be on the jury panel. He knows everything, so love it.

He certainly thought he was too smart,

That kid. Oh my. Well, and that's an example. That was an example of, I remember that conversation with Sean and we said the other panelists are going to hate him. I mean they're to, it will upset the chemistry of this jury because you could just tell, I mean you could see the side eyes and they're already getting to know each other. And we thought that would just disrupt the chemistry. So in addition to all of the other reasons he was gone.

Well, and I love that observation, Laura, from you especially because I think Sean, you were the one that was watching the jury as Sean's up connecting with the jury. You're keeping eyes on everyone, and that's something that you picked up on. Wait a minute, this is going to disrupt our tribe in, sorry, de Lamont's world, right? You'd want the tribe and this person's going to be a real problem. And that's something that stood out to you, Laura.

It is that person. And there was one other female panelists that we thought just did not jive. And overall, again, we were blessed with an amazing panel. So we could use our strikes on people where we're just trying to improve the chemistry and get everyone that's going to be on the same page and be really productive because we didn't know how much time they would have. I know they have limitless time, but we all know that juries want to be done by the end of the week, so we want a productive jury that's not going to get sidetracked by this kid.

So Laura, you did the opening statement. Tell us a little bit about your thoughts in how you approached opening and what you did with opening air

With opening. I wanted to educate jury a little bit about the context of the case because normal people just don't understand or insurance. So I wanted them to come in with a little bit of a background of education, but I also wanted to introduce them to the client. And that was the number one goal was to introduce them to who he is so that they could see all of the defense arguments through the lens of his life experience. And that would enable us to use the defense arguments against them. So in introducing them to our client, we could tell them he grew up on a farm, work is everything to him along with his family. Those are the things that are going to later kind of click back into their head when we're explaining why he has low pain scores, why he never missed a day of work, why he still travels with his wife, all of these things that the defense are going to try to use against him to minimize his pain.

I wanted them to learn about, and we wanted to embrace from the very jump. So we introduced him, I think I called out Keith Mitnick and my little report to C T L A because one of the first things I said to them that I think was necessary was that these, you're not going to be able to tell that he's injured. And that's with a lot of our clients. They're invisible injuries, they're inside the body, they've learned to mask them and hide them just to get through their life. So when they're sitting here in front of the jury, most likely you're not going to see it. You're not going to be able to tell, but that doesn't mean it's not there. And as soon as I could get them to be on board with that, then they could watch him all week and not be thinking internally while he's sitting there, he's not limping into court, he doesn't have a scar on his face. He looks fine. I don't know why they're asking for so much money. I think the point was really kind of attacking and embracing the things that defense was either going to say outright or imply throughout the trial so that they could be our things and they could be part of our case.

Yeah, it's fascinating and brilliant to use that whole pain on the inside pilot light pain type analogy and going non-linear a little bit here. When you all got to closing and you were talking about numbers for impairment, numbers for non-economic harms and losses, did you use a damage model? And if so, how did you come up with those numbers?

Yeah, so I gave the closing argument and the damages model was interesting for me. So I actually tried to take a theme of just trust for the jury and tell 'em what their options were. And in a way, I think it bought kind of an ability to not just say, oh, you can give more and have them be like, yeah, sure. Okay. So I didn't just say, do it this way and only do it this way. I talked a lot about the different experiences and events, and I broke down the damages into a chart. So across the top, laid out the damages categories within non economics, for example. And then I would just listed the different pieces of evidence, the little vignettes or stories they heard throughout trial down the side of the chart. And so for example, here's an experience, the experience of being in the car crash, and he gets in this car crash and the first thing he thinks about is his daughter's sitting next to him.

She's an adult now, but she's still his little girl. And hearing her having what could only be described as a panic attack and not knowing if she's okay, being in pain is something that I really connected to as kind of a newer dad. I don't think any parent should ever have to go through that. It's not that painful for him. So when we get to the column that's like he's having a little bit of payment, that's not really his concern. So we honestly tell them this shouldn't be a big number in this column, but as you move down the column, sure it's a little inconvenient in a hundred dollars, a couple hundred dollars a thousand dollars to not be able to do the rest of your daily plan. But when you get to emotional distress as the person who our client Rick is, with all of his experiences and what he struggles with in his life and what he's worked to improve on, he comes into this as a unique person, but someone that also any of us have common sense experiences we can bring to value it and connect with that.

And I pointed out that piece of the experience is worth a lot more, and I can't even remember what number I put on it. I do have my slides still, but that might've been one of the ones I listed as priceless. And there was another one where he's pacing up and down the aisle of an airplane for hours and hours and hours on a flight to Australia. And when he gets there, he can't hold his newborn grandchild because he's in too much pain to feel safe carrying a baby around. He can't get up and down. He doesn't feel mobile. And the reason he did it, the reason he went on that trip is to say goodbye because his grandchild was dying incurable disease, and that's priceless. And so I just kind of said priceless. Priceless has to be a big number and we have to think about analogies to other priceless things.

And so the guidance I gave was think about other things that are priceless, consider those. And so I used analogies to things like jets, yachts, paintings, I think I talked about. There's the painting Guernica, which memorializes a horrible, horrible thing that happened in its painter's community. And so it's priceless, but it's still just a shadow of who that painter is and the creativity that led to it. So is it really? And try to just leave them with this food for thought, but at the same time tell them things like, we trust you and we don't want your sympathy and you have to believe in your verdict and you deserve to have a verdict that you can be proud of. And talking a little bit about how you do come in here, as I told them, you could see it as coming in here as hostages, but none of you did.

You acted like it. You could have seen yourself as a hostage and just shut down and decided to do nothing. Instead of you got in here and you worked and you worked hard and you decided to make this into something, you decided to do something great here this week. And I've seen every single one of you pay attention if you're a note taker. I've seen you take notes if you are not a note taker. I've seen you carefully listening and there wasn't a moment in here I've had any doubt that y'all are going to do a good job. And so I leave you with that. And that's something about

Blacked out how

I edit it. I really don't remember much of what I said either though. That's kind of the funny thing. So at least that was the plan.

It had to have been brilliant too. It worked marvelously. So let me back up a little bit. I know that

The evidence that does

It well, I know you talked about using Dr. Ogan as your I M E doctor, and so I think I read that he did provide an impairment rating. First of all, tell the listeners a little bit about your thoughts on using an I M E doctor. First is calling a bunch of treaters and how you all think that that worked in front of the jury?

So I decided to hire Dr. Ogan, I guess almost two, no a year and a half ago for a lot of different reasons. I think a lot of times a summarizing IMEs type doctor is extremely helpful when you're preparing for trial. So when you're pretty confident that this case could be going to trial, you're prepping it like it's going to trial, you want someone that can come in and save the jury some time and energy and brain space and go through the prior medical records, summarize those for them, and also go over the treatment records. It doesn't mean that you can't also bring a treater. We brought two treating physicians to this trial in addition to Dr. Ogan, but it saves so much time for the jury where you can honestly tell them in opening and in voir dire and in closing, we are being efficient with your time.

We recognize that we could have trotted out 45 providers over the past three years treatment, but that is not efficient, it's not necessary, and we're not here to waste your time. As long as your summarizing doctor is credible and believable, likable, if he or she is the right person for the job, they can save you not only all of that time with the jury, but on your end costs. Rather than bringing every single treater and paying for that prep and paying for those doctors to come to trial, you're maybe putting it into one more expensive person, but saving a lot. Just practically speaking for the client on the case with Dr. Ogan, I knew that he has done a lot of defense work. He's done a lot of work for State Farm on a case like this, even without bad faith claims. I just want to get ahead of those things.

I want to get ahead of the eventual unavoidable bias argument or at least be able to attack it head on with the facts that this doctor is intellectually honest. The defendant use him all of the time, so you must believe in him. You must find him credible, reliable, that sort of thing. And they're also able to provide an impairment rating and future medical care. A lot of the times where a treater either won't put it in writing or won't even testify more likely than not to those facts. So in this case where I knew trial might be unavoidable and I knew the classic arguments that would be coming up against most doctors that we would hire to review records and provide these types of opinions, I thought it was a good idea. And the same goes for acu Ed. State Farm also uses them as an expert nationally.

So we are trying to just buffer against these arguments that we knew would be coming with experts that are very credible on both sides of the aisle, so to speak. And in trial, they still try to make the arguments. So it just shows that they will make those arguments regardless. And the better prepared you are to just expose the hypocrisy like Sean did really well in his AED preservation deposition, and I highlighted with Dr. Ogan the hypocrisy because they can't help it. They will still make the argument. It's on the outline, they're going to make the argument, but if you can expose the hypocrisy in the argument, you gain more credibility with the jury through that. So I think it worked out well in this case.

And I was fascinated to read about AED using State Farm being their number one customer. So Sean, tell the listeners a little bit about how AEDs work with State Farm, how you knew about that and how you used that at trial.

Yeah, so AED, for anyone who's not familiar with them is kind of a different way of judging the reasonableness of bills. And so in Colorado, obviously we have the collateral source rule here basically prevents any evidence of amounts paid, all the stuff that doctors will take discounts from health insurance companies because they have to. And that doesn't really express the reasonable value of the bills. Bills are evidence of the reasonable value of the services. Those are the things that if someone goes in without insurance, you better believe that the doctor, the hospital hospitals especially, they're going to send 'em to collections, they're going to get a judgment for it, they're going to go collect it. And there's all those economic factors that fit into that. So Acumen, instead of looking at, oh, what do health insurance companies discount these two, et cetera. The way some of the defense experts that we've seen and frankly gotten struck have done Acumen will actually say they'll go and look at the particular service over the geographic area the plaintiff is in or the patient is in, and they'll figure out what is the 80th percentile of bill pricing for that particular service in that geographic area.

So it's some idea of how do you connect this person with services that they can afford when they have to go get a verdict and get the money and then presumably go and pay for the services. And the idea there is that you have a surgeon and you've got the anesthesiologist and you've got the facility and you've got to find a team that you can afford all three of. And so the 80th percentile allows you to make sure that if your surgeon's a little more expensive and your facility's a little less, you're not trying to tell surgeon A to go down to Pueblo and practice at facility B. Right? So with that context, right, state Farm uses them in states where medical bills are a lot more inflated than they are here in Colorado or in states where especially maybe personal injury type providers are inflating bills, which is not as much of a problem here.

And so how did I find out? I just asked, have you ever done defense work? Have you ever done? And I get the response, well, yeah, actually a lot of our work is from the defense. In fact, I think our biggest client or second biggest client is from the defense. Okay, great. Who is it? Well, it's State Farm. Oh, did you know they're the defendant in this case? Oh, funny. Funny you should say that. Are you comfortable saying that? Yeah, of course they know it and it would seem a little strange that they would hire me and trust my work and then try to say that I shouldn't be trusted when I'm the one who designed the algorithm that my company is using. And weirdly, it actually isn't State Farm in my impression that has kind of tried to say ACU Ed's unreliable here in Colorado.

It seems to be actually our defense bar have decided that for whatever reason, and I don't want to comment too much on, but clearly State Farm hires them, state Farm trusts them, and it's mathematically reliable. I mean, it's just no denying that this is a reliable way to do this, especially in the context of Colorado law. And I'm sure they could fit their analysis into whatever state law that any other state has if they're just educated on what the law is and all they do is tell you what the data is. So I'm not really sure why the other side went so hard on bias there.

And so procedurally, you get a report from Dr. Ogan that outlines future medical care, and then you go to ACU ed, and I don't know if you have the C P T codes or whatever information you need, but do you basically say, okay, price this out and now you're ready to go to trial with sort of a mini life care plan that is super streamlined. Did I kind of get that right?

Right.

It's so efficient. I love that. Another topic I wanted to ask, I was curious from reading your review about the case is your use of your client's wife and his daughter who was in the crash with your client as sort of groaner witnesses, sometimes were hesitant to use family members, but it sure seems like in reading your summary of what happened, that that was very impactful. So could you speak about your use of family members here and if you think they worked and if so, why?

I think the family members in this case were absolutely essential. And really they were the only ones that could tell his story because of what we already touched on, but because of how well he hid his pain. So it'll be case specific, but in our case, our client had lived a whole life learning how to hide pain and minimize pain. So you typically say, oh, we'd like a coworker or neighbor, someone uninterested in the verdict, someone who doesn't have a dog in the fight to give credibility. Well, that wasn't going to work in this case because he was so good at hiding those aspects of his pain from especially people at work. I mean, it was his goal that people at work wouldn't know. And they did get inklings, but he tried very hard to hide it from them. We did actually have a coworker originally on our list and we prepped him.

I talked to him and after hearing some of the other testimony, we just thought it wasn't necessary because these two individuals, the wife and his daughter have the only behind the scenes action, the only behind the scenes facts that the jury would really care about with his wife. She was great. I mean, they had been married over 20 years. She knows him inside and out like a spouse does. And I think I touched on that in opening and kind of set the stage for this is the person that sees him after he gets home after hiding it all day. This is the person sees when the mask falls because you can't hide it from everyone. There has to be someone that sees it if you're human. And she was really that person. And there was a great part. I did the direct of his wife, and there was a great part of cross-examination by Mr.

Chambers where he was saying our client had had some prior chiropractic care just intermittently throughout his life. And so they tried to make that a big deal in our case. But the cross-examination question was something like, well, we've heard all trial that Mr. Hart Cott hides his pain, so he could have been in pain prior to this incident. He could have been in this type of pain prior to this incident, and how would you know? And she was like, I would know. And she just stared at him. And I just like, I had chills because she was just like, I am his wife. And I would have known. So ask me another question. Yeah, I mean, ask me something else. But if you have ever been in a long-term relationship or know someone that intimately, she's like, I would have known, I don't know. It was very effective.

And Sean can speak about his daughter because he handled her direct and everything, but these were the two witnesses. They were the only two that could give the background, and they were so credible that we didn't have that issue with a dog in the fight. They were honest, they talked about the traveling, they talked about the things that he could still do that he tried to push through these things. So there was nothing that was hidden and nothing that we were trying to conceal. So there wasn't an issue with credibility as much as you would maybe sometimes be worried about,

Wow, it's so insightful. And one of the reasons why I love talking to lawyers and hearing about their cases because it makes such sense when you explain it that way. Of course, the family members can provide this piece that no one else can. And yet sometimes because of the dogmatic approach we take to trials, we think can't have family members can't have family members. So I have learned something extremely useful. Sean, what about the daughter? Obviously she's in the crash. What about the daughter's testimony really stood out from your perspective?

Yeah, so Hope was not just a daughter. She's also, I think, and I think it's really important to say she's also his friend. And as they, well, let me back up. So at the time of the crash in the months and couple years leading up to this, they were going on hikes regularly together. And she could describe how he did on those hikes. Well, he did how little trouble he had. And so I think just from that standpoint, I mean, she's the only person really seeing that on a regular basis. So she was really important for that reason. It also was a little bit interesting to have her there testifying about the crash because we didn't want, and especially she didn't want to make this about her, she had resolved her case and kind of did the, Hey, I just don't want to deal with this.

Which is really unfortunate because insurance companies take advantage of people in that position. But she was pretty adamant about what she saw, the changes in her dad and how this affected him. And she just really wanted him to get a fair shake. And so I was really confident that she wasn't going to just try to make this, let's see how to win it. It wasn't a competition to her. It wasn't a, let's go make a point to her. She was someone who had already put the sword down and said, it's okay. I don't need to fight this. I'm just going to take your side of the story State Farm and just let it go. So I think you made the point about the dogmatic approach. I mean, the dogmatic approach is not always wrong. Sometimes we see family members who really have a hard time testifying super credibly or seeing their family member situation super clearly, but it's just important to dig in and figure out the details of it. And I think that's a lot of what she provided.

Yeah, what just a fantastic, amazing result. Last sort of question I had is, I know that there was a, I think you said a $400,000 impairment award looking back in the next trial you all have as soon as that is, how will you argue impairment differently versus how you did it here to try to get the money in that bucket versus the pain and suffering bucket?

Oh man, I have been struggling with that every single trial I've had, and it's hard. I think the jury instruction is, the whole jury instruction situation is unclear and it needs to be fixed. I think that the Colorado case law provides a lot of instruction about what impairment is, what it should be, what it isn't, why it's there that jurors could be provided. Every jury I've ever had is asked questions about impairment if they were going to give damages for a permanent injury and has been struggling with that. And I think one thing we tried to do in this case was we begged and pleaded for a jury instruction that the court declined to give. I wish he had given one. I think that there is some language in Pringle v Valdez that's really clear and should be used to instruct the jury on that.

But it's hard to get a lot of judges to feel comfortable going beyond the pattern instructions. In our case, I think the was concerned that some of the language from the Colorado Supreme Court describing that philosophy would confuse rather than clarify. And I think in a way, I can see the reason I wish we would be trusted a little more to explain and be given more ammunition with which to explain, more leeway to put on evidence as well as more instruction on details. But that's kind of the context. I'm not going to change that stuff. What I will change is I think Laura did a really good job with Dr. Ogan of talking about the impairment and the rating and why it was there. I think that's something where it's kind of a bright spot that got us an award that I think I would love to expand on.

Probably hammer on that more. In closing, I think one thing I would probably try to do more is hit a little bit more on the difference between impairment and disfigurement. And then one thing I've been toying with is this language in the pattern jury instruction that says, if you are going to give a non economics award, do not include anything for impairment. It has to go in the impairment category. But then in the impairment category it says, do not include anything you've already included above. And so that's kind of an interesting, it could go either way, and I think it's something we might try to just provide some instruction on, some leadership on, but I think truth be told, the easiest case is to argue impairment are not the cases when our client can still work, when he is limited in how he can do the things he loves to do, but he's still willing to push himself through it. So he's experiencing pain rather than disability. And I think a lot of us see pain and disability as the same thing, and there's just probably no getting around that. It probably seems like splitting hairs or lawyering the words, playing semantics to a lot of people. So maybe that starts in jury selection. That's another thing we could look into. But good question. Still wondering, still thinking about it still will be,

Well, I just want to congratulate you both again on really in the arena, on an amazing fight with federal court, that magnificent courtroom. Just an amazing result, and I cannot wait to hear the second half of the story that we have intentionally left out to leave the listeners in suspense about what happens next. Knowing that for those of you that were unaware, Sean and Laura did try to amend to include a bad faith claim, which the court ruled was time barred. So very curious to see how that shakes out at the end. So Sean and Laura, thank you so much for spending your valuable time chatting with me, and I hope you all are on next time after your next amazing verdict. So thanks all, everybody. Thank

You. Thanks, Keith. We really appreciate it.

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