A developmentally disabled man was injured when the car he was in was rear-ended by a delivery service partner company. He needed justice, and he got it. 

In this episode of Colorado Trial Lawyer Connection, Jessica Schlatter, Paige Singleton, and Randy Manning of Ramos Law join host Keith Fuicelli to discuss a $19M verdict they recently obtained for their client in Denver District Court. Listen as Jessica, Paige, and Randy discuss how their client was diagnosed with a brain bleed within three hours of being involved in a rear-end collision, how they established medical causation at trial, and how a creative closing argument helped put the defense on the ropes and secure a huge win for their plaintiff. Jessica, Paige, and Randy also go in depth into the medical side of their client’s injuries.

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Episode Snapshot

• Facts of the $19M verdict case
• Injuries sustained by the plaintiff
• Arguments made by the defense
• Use of experts for liability and damages
• Gathering information through 20 depositions
• Use of focus groups in crafting liability arguments
• Breakdown of the $19M verdict
• Using police officer testimony to bring in evidence otherwise not admitted

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. Well, welcome back everyone. I am Keith Fuicelli, and we are here for another episode of the Colorado Trial Lawyer Connection. And this one, I am thrilled to have Jessica Schlatter, Paige Singleton, and Randy Manning on to talk about an amazing 19 million, $19 million verdict that they obtained in Denver District Court pretty recently on an amazing case involving Amazon, involving brain bleeds involving all kinds of fascinating pieces. So welcome, Jessica, Paige, and Randal.

Thanks Keith.

Yeah, thanks for having me.

We appreciate you having us.

Well, before we jump in and talk about this fascinating, amazing case, let's start with you Jessica. Did you grow up always knowing you wanted to be a trial lawyer? How'd you end up doing what you're doing now?

I don't think I grew up that way necessarily, but starting in high school, I began to have an interest in it. My mom always said, I like to argue, like to have the last word of everything, and did a little debate in high school and started to really enjoy it.

Okay, fantastic. And I didn't mention, but Jessica, Paige and Randy are all with Ramos Law, and one of the things that I know that Ramos does very, very well is the medical piece of cases like this. And Paige, I think that I read that you were sort of in charge of the medical aspects of this case, or did I get that right?

No, that's correct. Yeah, I took the medical experts and did the medical piece and it was a really fascinating case on the medicine.

So before we jump into the medical piece of it, Paige, what about you? Do you always know you wanted to be a trial lawyer representing people in cases like this?

No, not at all. I was an English major and so I had to figure out what in the hell I was going to do with that after college. And so I just decided, hey, why don't I just take the LSAT and apply to law school? And I thought that I wanted to go into family law and thankfully law school took me on another path and I clerked at a medical malpractice firm and fell in love with this type of

Work. So did the working in the medical malpractice firm, did that sort of ignite your passion to really digging into the medical piece of cases like this?

It did, yeah. It ignited my passion to represent individuals who had been catastrophically injured as well as learning the medicine.

Great. And Randy, you are the managing partner or managing director of litigation?

Jessica's the director of litigation I'm managing. So I kind of just oversee the both sides, pre-litigation, litigation, and then a lot of other divisions, aviation, consumer protection, medical malpractice to some extent than some other areas.

Well, what a fantastic result your firm achieved on this case. How is it that you came into the world of law?

I went to law school. I always figured, hey, if I go to law school, nobody's ever going to say, you can't do this or you can't do that. You got a law degree. And I graduated in 2008, which there were no jobs that you could get in 2008 pretty much. And so I was lucky enough to work essentially a criminal defense firm and just kind of got right into trying cases, a lot of smaller cases and figured that out and not figured it out, but just went through it and gained some skills after a lot of hard lessons. And now we're doing this.

Alright, so all three of you were on this trial team, is that right?

That's correct.

Okay. And Jessica, how do you divide up the responsibilities? Were you sort of first chair or how did you guys go about dividing up trial responsibilities on this case? It's a pretty complicated case.

Yeah, I don't know if we really ever defined it. I was the one who had it initially beginning in about July or August of 2022. And then when Paige joined Ramos Law at the end of 2023, brought her on to help with a lot of medical stuff. We had maybe 20 depositions, if not more, some of them we had to travel for. So brought her on. And then trial wise, I did opening, closing and liability, and then she did the medical experts.

So tell us Jessica A. Little bit the facts of this case, what happened?

Sure. So our client, Mikey, was someone who suffered from developmental disabilities, one of them being cerebral palsy. And he was living in a host home at the time. He was an adult in a host home. And then he would go during the day to an adult day camp type place where they would go on camp activities and just take care of them during the day so they could get out of the house and be with their peers, things like that. So on the day of the incident, the day camp driver or volunteer for the day camp picked him up from his house along with five other disabled individuals, and then were driving to the day camp when the driver of their van saw a bumper in the road or a piece of plastic, he slowed down, might've stopped fully for the bumper, and then he was rear-ended by a person driving for a delivery service partner company who was going well over the speed limit, didn't see them stop and slammed into them.

Was there a reason the driver of the van couldn't just go around the obstacle in the road?

So his story was kind of two part. He said he didn't have time to go around before he was rear-ended that it happened pretty quickly. And then he said he did look and to both lanes on either side because it is a three lane road, and he said there were other vehicles coming on either side. So he had to stop and then try to change lanes and he didn't have time to change before he was hit.

Did anyone assert that the driver of the van was at fault?

Yes. So we did bring a claim against the driver of the van because we figured that could be a possibility a sudden and unwarranted stop and we weren't sure what would come out during discovery. And the delivery service partner company en route blamed the driver of Mikey's Van as well.

And just so the listeners know, the driver, the en route or route, however you pronounce it, vehicle that rear-ended your client, they were sort of involved with Amazon. What was the connection of route to Amazon?

Sure. So basically when you see those Amazon vans out on the road, I'm not sure if a single one of them is actually an Amazon employee. So Amazon reaches out to people who want to start their own business, calls them entrepreneurs, and they start a business and become delivery service partners. So they hire their own employees, they do their own things, and then those employees with the delivery service partner deliver Amazon packages.

Okay, so was the vehicle that hit the van, was it an Amazon van? Did it have Amazon on it or was it overtly affiliated with Amazon in any way?

That would've been nice, but no, it was a Ford F-150 owned and insured by route. So the driver of that vehicle, he was not delivering packages on that day and hadn't for some time. His role was more just maintenance of the Amazon branded vans that are in those warehouses that we see everywhere.

So the driver, I want to make sure I have this right, the driver of the F-150 employed by On Route is not delivering packages for Amazon, but is in the process of going to a warehouse to work on Amazon vans or something like that.

Sure. See, he started his day at an Amazon warehouse, was taking inventory of the vans that he needed to work on that day, and one of them needed a stronger tool to remove tires and change them out. So he went to his house to grab a stronger tool wrench or whatever it was, and then was heading back to the Amazon warehouse when the crash occurred.

Now going back to the driver of your client's, I see that you brought them in because you're worried about sort of the route driver blaming the driver of the van, et cetera. How did you all, either Paige, Randy or Jessica, how did you handle that at trial? Did you argue in any way that the van driver was responsible? Did you argue they weren't responsible or just kind of leave it up to the jury?

So we lucked out a little bit where we didn't have an explicit agreement to work with counsel for the driver of our van, but we were able to just let them take that defense. They had pretty minimal limits and well actually no limits, so putting it on en route was better for us. So we let them take the defense and then argued they might've done something wrong, wasn't much, and I think we asked them to put 5% on them in closing.

And the jury awarded how much fault or allocated how much fault for the driver of the van your client was in

0%.

Alright. Now I want to just touch real quickly Paige on the injuries that your client suffered. So understand you're sort of taking the medical piece of this, help the listeners understand what it is your client experienced in this collision.

Sure. So as Jessica mentioned earlier, our client had several preexisting conditions. He was born prematurely. His mom was pregnant with twins and she delivered at 20 weeks. One of the other twin died. And so our client had a huge struggle in the first few years of his life. He was born with cerebral palsy, he had numerous heart surgeries, but he was a fighter and they didn't expect him to survive very long at all after he was born. But he did and he was 49 years old at the time of the collision. And so actually he was 47. He was 49 at the time of trial, so he was 47 at the time of the collision. And he really proved his doctors wrong and that he not only survived, but he was pretty high functioning. He had mild cognitive disorder, he wasn't able to work, he wasn't able to live independently, he lived in a host home, but he was able to go to a day camp.

He was independent in almost all of his activities of daily living. He could bathe himself, dress himself, he could even ride a bike at times. And so he was doing really, really well at the time of the collision relevant to his injuries, the day of the collision, he had a low platelet count, thrombocytopenia, but it wasn't really low, it was just over a hundred thousand. And so one of the defenses in the case was that he just had a spontaneous bleed. He was taken to the hospital, he was diagnosed with intracranial hemorrhage and so he had bleeding in several parts of the brain. He had bleeding in the epidural space of the brain. He had bleeding in the subarachnoid and he also had bleeding in the intraparenchymal space of the brain. And he also had bleeding in his ventricle. So basically he had blood all over in his brain. And so the defense, one of the defenses was that his platelet count was low. So this must have just been a spontaneous bleed completely unrelated to the serious collision that he was in.

I guess first question, I don't know that we covered this. You said serious collision. I know the driver of the F-150 was going 40 miles an hour. So did you have bad pictures to show damage to the back of the van? I mean, it was a bad crash.

It was a pretty significant crash. Yeah, both vehicles were totaled out. They were not drivable. I wish we had the photos, but the Kia Sorento that our client was in was significantly damaged in the back.

Okay. Oh Kia, for some reason I thought your client was in a van, but it was just a Kia Sorento.

Yeah, so it was a Kia Sorento with three rows. And so our client was in the middle row, middle seat, and then there was also a back row with two other individuals.

And was your client taken by ambulance from the scene?

He was. So what happened was paramedics arrived on scene. The developmentally disabled individuals who were in the van who did not have guardians with them were taken to the hospital because of their cognitive abilities. They decided that they needed to take them to the hospital because they couldn't wave being transported from the scene without a guardian. And so that was one of the defenses with the only reason these people were transported to the hospital was because they had to be, they couldn't waive the transportation.

But did that apply to your client as well or did your client have symptomatology at the scene that they were like, you should go?

We didn't call the paramedics, but I think he would've been transported regardless of his symptoms on scene, he reported a five out of 10 headache. He reported that he couldn't remember the collision, that he may have lost consciousness, and he also had some pain on his shin

And they had the video of him. So they had a body camera fan. He wasn't walking, but he was sitting in the car talking to a police officer.

So he was walking.

Oh, he was walking in the,

Yeah, so the body cam footage showed that he got out of the vehicle. He was standing next to the vehicle, he was walking normally, he was having a conversation with the police officer. He was able to give his name, his date of birth, he was able to spell his name. So that was one of the big things that the defense grasped onto.

And so there, I'm assuming they show video from the scene that shows your client, in my mind, sort of relatively acting normally, how much longer from the scene of the crash was it that your client's condition deteriorated significantly?

Yeah, so the crash happened around 9:00 AM and his deterioration actually occurred when he was in the CT machine, which was just after right around 11:30 AM So it was about two and a half hours

All the while up until he's in the CT scan, meaning when he's at the emergency room, is he communicating clearly with the paramedics and the first responders in the emergency room and then all of a sudden two and a half hours later, he just crashes?

Yeah, so on scene they noted that his Glasgow coma scale was a 15, which is normal. When he got to the hospital and he was being evaluated by the ED physician, he noted that our client had confusion and gave him a Glasgow coma scale of 14. And then when he was in the CT scan, he just completely deteriorated to the point where he was unable to communicate.

How significant was that Glasgow coma scale of 14 prior to getting in the CT scan as it related to your theory of medical causation?

So the 14 was not significant to our experts. Basically what happened here was our client, Mikey, in the collision, he likely suffered a frontal bleed and because of his low platelet count and because he was on 81 milligrams of aspirin, the bleed continued. And then when he had the deterioration, it's because the bleeding just got out of control in his brain. So it was basically a slow bleed that continued throughout the course of the two and a half hours.

And was the theory that the frontal lobe bleed, was that from a coup counter coup type of movement or did you get into the sort of biomechanics of it?

That was a big dispute in the case. So Mikey had an abrasion on the left side of his forehead. However, the paramedics did not document anything about an abrasion. It wasn't documented until he got to the emergency department. And so our theory was that he did, he hit his head, he hit the left side of his head, and that's where most of the bleeding was. It was on the left side. So it was consistent with where the abrasion was. The defense tried to argue that something must have happened to him after he left the scene. And that's why the abrasion wasn't noted by the paramedics.

And when you say was there a row of seats, that first row of seats in front of him so that he hit his head on the seat in front of him

So he could have hit his head on the seat in front of him, he could have hit his head on the person next to him. I mean, he had a person to his left, a person to his right. The impact was such that objects were flying. The guy in the back, his glasses flew off of his face, and so there's a lot of opportunities for him to hit his head in the collision.

Alright, so I'm hearing in my mind, slow bleed, which is one of the reasons why a lot of times they'll take you to the ER and do a CT scan to make sure there's not a slow bleed, but he has this slow bleed that given his aspirin intake and the platelet count, his body's not to stop it and it just keeps going, going, going. And then he crashes two and a half hours later due to the blood inside his brain basically given his aspirin intake.

That's correct. So aspirin is an anti-platelet drug. And so what his lab showed when he got to the hospital was that his platelets weren't functioning as they should for a normal person. And so while his platelet count was just below average because of the aspirin, his platelets weren't clotting as they should. So where an average person who wasn't taking any one milligrams of aspirin and had a normal platelet count, likely the bleed would've stopped and it would've been probably just in the epidural space for Mikey, it just continued to bleed because his blood couldn't clot.

Now, did you use a treating physician to establish medical causation at trial or who did you use to get that evidence in front of the jury?

So we used a combination of retained experts and his treating neurosurgeon. Our best expert was actually a rebuttal expert and her name is Dr. tro Subramanian and she is a vascular neurologist out of Stanford who is basically the expert in the country on intracranial hemorrhage. And she basically took the defense theories, chewed them up and spit them out and made the defense experts look ridiculous because the defense knew that she was really good, they were terrified of her, and they made a decision to call no medical experts at trial so that she couldn't testify.

Jessica, tell me a little bit about the deposition. You said 20 depositions. Were there any depositions that proved critical in the actual trial piece of the case?

I mean, yes and no. So we had, I think five corporate defendants and two individuals, maybe it was four corporate, two individuals, so took three 30 B, six depositions, all the individual depositions. There really wasn't much impeachment that needed to be done. I think that might've been more necessary if Amazon was still in the case. By the time we went to trial,

Paige smoked their life expectancy expert. She told me she smed them because she did a good depo.

So the defense hired a life care expert to say your client was not going to live very much longer.

They hired this guy, Dr. Reynolds, who's an epidemiologist and a statistician, and he works for this company called Mortality Research Consulting. And he opined that our client, had it not been for the collision, his life expectancy would've been 14 to 15 years because of the collision. His life expectancy was eight to 10 years.

It makes you wonder how that testimony really lands with a jury. I've not faced that kind of testimony before, but it seems sort of crazy. But for our negligence, this guy's only going to live another eight years and therefore don't give this massive life care plan. It just seems like that's going to get lost on the jury in the end. Is that kind of your feel of how this thing played out?

Yeah, I agree with you Keith. I've seen a lot of life expectancy experts in cases before, but I've never actually seen one called to testify at trial. So this is the first time we actually saw one at trial, and I don't think that it landed well with the jury. Unfortunately, the jurors ran out of the courtroom after they gave the verdict, so we didn't have an opportunity to speak with them and get their insight on that. But we do know based on what they awarded that they did not give any credit to his opinions on life expectancy.

Okay. So let's talk, I don't know which one of you wants to talk about what your past economics were and what you had as far as a life care plan. And then also before we jump into that, what the verdict breakdown was from the jury.

So our past economics were a little under 6 million, the majority of which was his initial hospital stays, and then he had additional hospital stays when he would contract pneumonia and things like that from being in a long-term care facility. And then our life care plan had a very wide range. We had our life care planner take the average life expectancy. Our doctor retained expert Dr. Reinhardt gave kind of a vague life expectancy of about 18 years. And then we had her consider Dr. Reynolds the defense expert's life expectancy, just so the jury could have all of the numbers out there, but the low end was 2 million and the high end was 25 million. Also considering two separate options, one being where he receives care in a facility and one being where he could go home and have 24 7 skilled nursing care in a home setting.

So we've got 6 million past economics and anywhere from two to 25 million in future economics. Did I get that right? Yeah. What did the jury award for? Economics?

The jury awarded little over 15,600,000 in economics.

Okay. Now I know that you all made the strategic decision to dismiss the noneconomic damage part of your case. First question is, when did you all decide to do that? And can you tell the listeners how that played out?

Well, I thought let's just do this before trial. Let's just let it go. You know what I mean? Before trial, but then we were talking about it and at some certain point we were like, well, let's just drop it after our case in chief. And so then that way we wouldn't have so much objections over like, oh, you're saying pain or you're saying loss of enjoyment or whatever. And that was pretty broad. But during the trial we were putting in evidence the whole time that this is an impairment case. We had Michael's mother say, we're not exactly sure what type of pain he feels. And so we just focused on impairment and then we dropped it and the defense lost their minds and was arguing all sorts of stuff. They didn't really know what to do because they doesn't make that much sense to argue, Hey, we should have another category of damages on the forms.

And Judge Bailey I think did a really good job on the case, but he does make his mind up maybe a little bit differently than a lot of judges where we had multiple arguments. And so we were getting nervous they were going to mess up the jury verdict forms or the instructions based on the defendant's argument. I mean, read of their arguments is we're just going to make this an absolute mess on the instructions. And it was freaking us out, but I was like, look, I think we're going to win this argument. And judge gave us the last word and it was actually about to make his decision. And so we just said, look, we're not compromising on the jury instructions. This is a normal situation where we're not claiming a specific damage, and so you just need to delete paragraph two. It's that simple.

And then we make the adjustments from there and they're like, well, we want to tell 'em that they don't get loss of enjoyment and pain and suffering. And my only argument to that was we're not going to tell 'em that we can't get attorney's fees. We're not going to tell 'em that Michael's not entitled to any statutory damages. We're not going to tell 'em that you can't treble this amount. And if they want us to argue that, then we could, because my opinion was if they were going to let us go up there and say, Michael's not entitled to attorney's fees, you should consider that, and you can't treble any of this to, you can't give punitive damages even though you might want to. You know what I mean? I thought that would be really bad for them. So I think the judge realized that makes no sense, and he ultimately just said, Hey, we're sticking with the normal jury verdict form and we're just going to remove pain and suffering. I think ultimately we would've dropped back in pain and suffering if the judge said, we're going to make the mess of this verdict form. Just because I think it would've been pretty hard to predict how a jury would've reacted to an entire closing argument that he doesn't get loss of enjoyment of life and all of that big broad category going down that list. I think we ended up would've ended dropping it, but he gave us the right instruction. And so I thought it was pretty clean.

So was the decision made at the time you all filed the trial management order to drop non economics, or was it like in trial

We were going to drop 'em? We just decided to drop 'em when we were going to drop and we were thinking let's drop 'em before closing. But then we had three jury instruction conferences, and so when we were having multiple jury instruction conferences at one of 'em were like, Hey, let's bring this out right now. Just because we thought that the judge would be a little bit annoyed if we got 'em all ready and then said, actually, we're going to drop that one. Let's have this big argument.

So it's in the middle of child, you made that decision to drop 'em?

Correct.

Wow. Okay.

So we first started talking about dropping the noneconomic damages after Kurt Zaner recent verdict where the jury put $15 million in the category of non economics, and we realized that we probably needed to pull that category.

Yes. And you got a $3 million impairment award here. So it seems like that strategy was sound. If you could go back, would you do it the exact same way again or would you make any changes on the dropping the non-economic damage piece?

We would do it the same way again, obviously we had hoped to get a little more in impairment. If they had added another whatever, 1 million to pain and suffering, it would've been nice. But we were looking at potentially devastating consequences with our caps like Kurt Zaner experienced.

So questions about Amazon's involvement. So my understanding is that they were dismissed out on summary judgment. Is that accurate?

Yeah, that's accurate.

Okay. And then with the company that rear ended, did you all make a policy limit settlement demand with them before trial?

Yes. We made a policy limits demand to on route logistics and Alfredo, Alaska, the driver combined globally. And then we also made a global demand with Amazon on route and Alfredo all within policy limits.

Alright. And so that's something that's going to be playing out I suppose, in the future, one way or the other consequences of that. So talk to me a little bit about the expert, the neurologist. Is she a neurologist from Stanford or is she Yes.

Yeah, so she's a vascular neurologist, critical care and vascular neurologist.

Alright. Could you talk to us a little bit about the experts that you used sort of proactively and how you found the doctor from Stanford?

Sure. So for our initial expert disclosure, we used Dr. David Reinhard who's in physiatry, and we had Laura Woodard as the life care planner. We had, I think those were only retained experts. And then we also disclosed several of the treaters, including Dr. Ormond who was the treating neurosurgeon who initially treated Mikey at uc Health. And Jessica can speak to this, I wasn't here for initial disclosures. The way I saw it is we didn't believe that causation was going to be this hotly contested in the case, given that our client was in a pretty serious collision and was diagnosed with a brain bleed within three hours of the collision. It just didn't seem like it was that gray. It

Seems that way. It seems that way to me as well, but it turns into a big huge fight. Talk to us a little bit about the treating neurosurgeon. I found sometimes you see health doctors, they're very reluctant to get involved. Did you face any of that in this case?

So actually honestly, I feel like he saved the case for us on causation. We were really nervous when we weren't able to call Dr. Venkat, our vascular neurologist. We were relying solely on Dr. Reinhardt. He's a great expert, but he's not a neurologist. And Dr. Orman, initially we had tried to reach out to several of the uc health providers, including Dr. Orman, didn't really get a response. But then shortly before trial, Jessica spoke with him briefly and he said, look, I remember Mikey, I want to help him. I really don't like getting involved in litigation, but I do want to help him and I will testify at trial. So we met with him less than a week before trial, and his opinions were almost a hundred percent consistent with Dr. Venkat. And so he was able to give us most of the opinions that we were going to elicit from Dr. Venkat at trial, and I thought that his testimony went very well.

Okay. And was he disclosed then just as a treating physician, as an expert treating physician at expert witness stage, consistent with his reports and then you were able to get in the causation piece at trial?

Yeah, I mean, he was disclosed to discuss causation. His record somewhat discussed causation in that he diagnosed Mikey with a traumatic intracranial bleed. And so one of the issues actually in the case was that when initially it was put into the electronic medical record that Mikey had a non-traumatic intra ventricular hemorrhage. And so the defense jumped all over that and they kept saying, look, even his treated healthcare providers didn't believe that the brain bleed was caused by the collision. And in fact, they made that argument an opening statement, and then we put on the neurosurgeon who proved them wrong. So

What happened, help us, educate us on who checked the non-traumatic box and then the neurosurgeon comes in later and says, no, this is traumatic. Or was it?

Yeah, it was part of the differential diagnosis workup. So Mikey's case was unique because he had so much bleeding in multiple compartments of the brain and you wouldn't necessarily expect to see that from a collision of this nature in an average person. And so I think it was either the ED physician or the resident who was working in neurosurgery that initially put this in as a non-traumatic intraventricular hemorrhage. But that was before they did the CT angiogram to look at the vessels of the brain. And that was before they did other diagnostic tests including the lapse, which showed that his platelets weren't functioning correctly. So after they got the results of the CT angiogram, they were able to rule out other non-traumatic causes for the bleed, including abnormality of vascular abnormality and aneurysm, something like that. And so they ruled out every other non-traumatic cause and they were able to piece together that the reason he had so much bleeding was because of his platelet dysfunction.

How hard was it to establish that the bleed started in that left frontal area? The same location where there was an abrasion.

So the experts, both Dr. Reinhard and Dr. Orman, and when Dr. Venkat was deposed in her report noted that the fact that there was bleeding in that frontal area was consistent with this type of traumatic injury, Dr. Reinhardt testified that it could either have been from impact to the head on that left side or it could have just been from the whiplash, especially given his susceptibility to bleeding.

The bigger thing was there was three compartments of bleeding. So when they were trying to argue, hey, this was spontaneous, it made no sense that it would happen in three different areas spontaneously. So when we had done some focus groups, we had felt like once we pointed out that there were three separate areas of bleeding and how it would've been very, pretty much impossible and there was no history of this ever happening where somebody spontaneously bled from three compartments that we really focused on that, which I think went a long way. Then they even got into, they were kind of trapped and they got into, well, some of it could have been spontaneous and then only some of it was traumatic, and so you should try to divvy up which one was traumatic and which one was chronic. And that came across so bad that I think they were pretty much cooked then.

So were the three areas of bleeding, were they all in the same? It

Was actually, it was four compartments, so it was the epidural space, the subarachnoid space, the intraparenchymal space, and then the intra ventricular space. So he had blood all through his ventricles of his brain as well. So that was the fourth.

And forgive my medical ignorance, but that's one of the reasons why I love doing this. Did the bleed start in the front left part of his brain and then just go to all of those areas or did each of those areas actually have a rupture of a vessel that caused the bleeding in those particular areas?

So we can't say for sure what we know is he definitely had the epidural bleed, but it's likely that he had rupture and multiple vessels.

Okay. Talk to us a little bit about the focus groups. How many focus groups did y'all do and what'd you learn from him?

We did two of them. We didn't get great participants. The first one only had a couple people there, so getting people to show up was a little difficult for us, but pretty wide range of opinions in there. One guy who wanted to give zero for impairment, and then there was other people who were give them a hundred plus million, so it was kind of hit or miss.

See, the big thing we learned was kind of how to argue liability, which I think it seems like liability was easy, but it was not easy. And we took a really weird approach where we didn't argue liability as much because if we were sitting there saying the Velasquez guy, he's the bad guy, then that was going to be really weird with the front driver. And so what I think that our biggest theme that came out of this was that this is absolutely horrible what's happened to Michael and nobody in this courtroom is going to step up and even say what part they had it. And so when we dropped that time bomb on the other side, it kind of put them into a position where they knew that damages were going to be a lot worse if they didn't step up at all or if they didn't start taking any of that responsibility.

And I think their case was really hard for them to argue full on liability and not take some of that responsibility. So it was like a dare, which was like if you want to go tell this jury you have 0%, that's fine, but that's going to go into the damages and just try to guide the liability more than argue it ourselves. And I think we overshot it just a little bit. We were in our focus groups getting 95 5, which is kind of what we wanted, but we maybe overshot it touch and got a hundred zero, which was actually really good. I honestly thought we could get up to 25% on the front driver.

So I'm hearing that as a result of the focus groups, you learned that at trial you're not going to really take a strong position between these two drivers, let them point the finger at each other to some degree, and you learn that from focus

Groups. I think that helped because it was more of a risky strategy. I mean, Jessica and Paige were going to do the arguments and I was sitting there. I think our best strategy is to just throw it on 'em and say nobody's taking responsibility but not going at one or the other so much. And so it's a little bit risky when you're like, we're not going to tell him he did this, this and this, and you know what I mean? And it was like let them figure it out. But we knew from the focus groups that that would be okay to do it that way.

So I want to talk a little bit about the driver. You said his name was Vasquez, the en route guy, what his name was Vasquez, I think. Velazquez

Velasquez.

Were you able to get any, because in my mind I'm thinking you're going 45 miles an hour. Did he say how quick before he hit the brakes, what did his deposition look like and what kind of evidence was presented to the jury about his actions?

Yeah, that's actually one thing that we loved is he's on the body cam a couple times and his story changes quite a bit. Every time someone talks to him, we actually have the black box data from the four that showed he was going 49 miles per hour immediately before impact. He barely touched the brakes. I think it was like half a millisecond before impact that he attempts to touch the brakes. He even testified in his deposition that he didn't even try. So an instinct he didn't even know he did it. But yeah, his story changed a lot when he first called 9 1 1. We have that recording. He said he hit the car in front of him and then we see him on the body cam and he starts to say There was a car in between me and the Kia, so I didn't see the Kia, that car swerves out of the way and that's why I didn't have time to react. Then later he is giving a statement to his employer and now it's a pickup truck, not a car that was in between him, so a bigger car then I wouldn't have been able to see it. So we kind of played with those different statements just to hurt his credibility at trial and it worked a little too well.

Did you all call him as your first witness and your case in chief?

We called him as our last liability witness. We wanted the jury to hear everyone else's story and then hear him say, I'm taking zero responsibility. You listened to the cop, you listened to an independent witness saying he was going way too fast, didn't attempt to stop, clearly not paying attention, and he just got up there and said, yeah, it's not my fault.

Wow. And Jessica, did you cross examine him at trial?

I did.

Was your first question, sir, do you accept any responsibility for this collision? And he says none.

Yep, exactly. That was Randy's idea.

Wow. That's like a dream. And how long do you imagine your cross-examination of him was Time-wise,

It really wasn't that long. Randy helped me with that one and picked out different scenarios. If he says yes to I'm responsible or says no. And then we go into, well, the first time you're accepting responsibility is today at trial. So since he just said I'm not responsible, I was a lot shorter. And then I just let Josh Proctor the attorney representing the front driver, hit him a little harder with some things, but he was very young. They painted him as this hardworking father of two. I think he was 30 or 32 or something. So I didn't want to crush him. We wanted it to be more about route in the corporation and not the individual.

Did you have, so Josh Proctor's representing the driver of your client's Kia, did I get that right?

Yeah, that's correct.

And what was sort of your understanding with Josh as to how things were going to shake out at trial? If you feel comfortable talking about it? Did you guys have an understanding or was it sort of like, Hey man, we're not really coming at your guy and how did that play out? You need my lawyer if you feel comfortable talking about it. So the way they had a

Hundred dollars policy, and so we talked to that defendant and said that we're not going to take a hundred thousand dollars if you get any liability on it and we're going to win in the tens of millions. We felt comfortable with that. We probably would win that much. The only way you're getting out of this is to get a zero. And so I knew Josh for a long time and I thought he would be very good. And that was a really important thing is we read that situation correctly because Josh did do very well. And so we just kind of provided that incentive that I know you only have a hundred thousand dollars policy, but if your guy gets 3 million bucks against him, we're not just going to go and say, okay, that was fun. Give us a hundred grand. And so I think that there were some things that were going on in the case that made that very motivating for them to do a great job and Josh did.

Yeah, that's fascinating because I've heard of other lawyers in situations talk about a covenant not to execute, and actually I think Kurt Zaner had a similar situation in a case where I can't remember if they did, it was like a $99,999 sort of we will accept this when the trial is done type of agreement. I think it's fascinating for our listeners to hear that there's different ways to sort of skin that cat. And so Randy, talk to us a little bit more about was the agreement or the point that you were making to Josh that look, if it's a two or $3 million verdict, we're coming after your guy for two or $3 million to incentivize him, Josh, to do the best job that he could to keep that number as low as possible. Did I catch that right?

Yeah, I mean it was that, but it was also a bad faith claim potentially as well as there were some other potential claims that I thought might be a concern for them, and we didn't have to make any agreements or anything like that. We just kind of talked it through 'em and said, you're not going to do good on the damages. And so if you're getting yourself all dirtied up and the damages, your guy's going to get hit with liability and we're going to get a number here. So you really have to focus on liability. And so Josh read the room and he didn't have to go jump into the damages part, so he just stuck to liability. So then we didn't have two defense attorneys shooting at us. So

Now I'm hearing what you're saying. So Josh, he wasn't attacking the liability piece at all. He's not asking questions of your causation experts or the defense causation experts. Was he just sort of like, I don't have any questions of any of these people? Exactly.

He didn't question one causation or damages expert.

Wow. Fascinating.

And then he even made a point to bring that to the juror's attention in closing. He said, you did not hear me ask one question of any of the medical experts or any of the damages experts. We care about Mikey and we know he's been through a lot. And so he basically said, look, this is all them. It's not me. I'm not the one who's questioning causation or questioning the significance of Mikey's damages.

Wow, that seems like that would really help you because it's almost by not attacking it, he's agreeing with you. That had to be what the jurors felt.

He said in closing, he is like, what's happened to Michael is absolutely terrible and we hope the best for him in his future. You didn't hear me questioning anything about causation. So that was kind of played into our liability strategy as well as we can leave this door open and you can walk through this easy door. The easier door for your client is to fight liability. You start getting into damages, then it's on. You know what I mean? And so it wasn't a formal agreement, but there was enough there and Josh was, in my opinion, very smart and so he just read it right and he knew what to do and it was helping us a lot. For sure.

I love that you had this plan and you strategized about it and then it came to fruition even though maybe you're slightly disappointed by this monstrous $19 million verdict that you all received, but a hundred percent liability against the party you were looking for just seems magnificent on a potential sudden unexpected unwarranted stop. Let me ask you that question. Did the Hall and Evans lawyers really try to go after Josh's client for this sudden unwarranted unquote stop in the road? And how did that objectively the facts of that, was the driver really credible? How did that play out?

Yeah, they absolutely went after that and the biggest thing is that no one saw the plastic or the bumper that he supposedly stopped for. That was the main thing that we were worried about is everyone's there on the scene, we have body cam, you can't see it. I don't know why else he would've stopped in the middle of the road for no reason, but there was definitely an argument to be had that it could have been completely unwarranted.

Interesting.

And there was also Keith, there was nobody to his left, so he's in the middle lane. There was a car to his right, but there was no car to his left, so he could have changed lanes and gone left. That's why we were really worried about the percentage that the jury would assign to him. Josh handled that really well in closing, he said, look, my client's not a superhero. We all want to think that we're going to do the best thing when we're confronted with that situation, but you weren't there and he did the best thing that he thought he could do to keep these individuals in his van safe.

My favorite argument maybe of all time in a closing argument is Jessica thought I was nuts. I was like, Hey, say this. And basically the argument was this guy in the Sorento driving our client, he probably was driving too carefully and if you believe he was driving too carefully so that he didn't hit anything in the road, then you've got to give him 5% the way that played out. I still laugh about it to this day. Then you get proctor up there and he's squinting and he is like, I think that the plaintiff said that my client was driving too carefully, but if you think about it, that was kind of what they were saying is that he shouldn't have stopped at all. He was being too safe. And I thought that was a great argument, but that might be just because it was so freaking funny to listen to Josh throw that back at us in closing.

Yeah, it's fascinating because I had a trial recently against Brad Ross Shannon on a disputed liability rear end collision. And so the facts of your case are sort of akin in many respects to the case that I had done recently. And we tried to argue that you have an obligation, it's negligent to not leave enough space between you and the car in front of you so that if that car stops for any reason, something being in the middle of the road, you're able to stop safely. And it sounds like, I mean you have magnificent black box data from the Ford showing no brakes being applied. I mean it seems like the only conclusion the jurors are going to reach is that he was looking at his phone and of course I'm sure he says, oh no, no phone, no phone. But I mean isn't that kind of like the wink? Everybody knows the guy's on his phone, right?

Yeah, unfortunately we couldn't get the black box data in.

Is that because you didn't have a reconstruction expert or something?

We did have one when we did the download of the vehicles. We didn't think we would really need one and we're hoping that the front driver was going to get one. They said they were going to get one. They even filed a disclosure certificate identifying that they were going to have one, and then they ended up not producing a report. So we were kind of left with no expert, no ability to get it in. We tried to just disclose it. We had the data, we disclosed it before the discovery cut off, they fought about that. We got an affidavit from the expert who downloaded it to say that it was authentic, it was business record, all that to try to get it in. They fought about that and then just said we couldn't lay the foundation.

Were you able to get in the information anyway through the defendant? Because I'm assuming that he probably admitted to the facts in his deposition, look, you are going 49 miles an hour, 40 something, and you hit the brakes if at all, like right before impact or did you not have that testimony from Ms.

Depo? The lack of breaks? We got that from the depo. His depo, he said he was going like 35 to 40 on the body cam. He said he was going 30 to 40, so he definitely was not admitting the speeding. But Keith, we got speed in through the cop and the cop was great. I mean he basically put a nail in the coffin on liability and Josh had this great idea to have the cop review the data before the trial and we able to get in testimony from the cop that he had reviewed the data and it was consistent with what he put on speed in the report and he had put that Velazquez was driving 50 miles per hour. That was helpful. So we were able to use the data in that way.

Alright, that's a brilliant practice pointer. Probably the last thing we'll cover, this is a great practice pointer for those that are listening is you had the officer review the black box data and then did he issue or did you do a supplemental expert disclosure saying he's going to test none of that? No supplemental disclosure, he just comes into court and on the stand is like, oh yeah, I looked at the black box data and it was consistent and the Hall and Evans lawyers are sitting on their hands and

No, there was definitely objections. And so we weren't able to get in anything about what the data said, but we were able to get in, sneak in some testimony that it was consistent with what he put in his report about speed. So yes, that was a contentious issue with the officer, but regardless of the data, we had the officer testifying that Velazquez was following too closely, that he was going over the speed limits, that he wasn't paying attention. And so we got all that evidence in through the Cobb.

Fantastic. And how long did the trial last?

Well, we rested the cases Thursday afternoon split for another jury instruction conference and then closed Friday morning, so kind of five days.

And overall impressions of Judge Bailey in Denver?

I think he's a good judge. He's a newer judge and he really, really wants to get it right. He cares. I got that impression immediately, but his desire to get it right sometimes leads to multiple back and forth arguments, which can be a little frustrating and waste a little time. Overall, I really liked him and

obviously we think that he got it wrong on the summary judgment on Amazon, so that is being appealed and we think it'll be reversed.

Alright, well we'll have you back on when this trial against Amazon occurs two years from now and you can share with us, you'll correct the little things maybe you guys couldn't improve on. You're going to come back with 50 million, maybe a hundred million against Amazon. So I want to thank you all for coming on. I have learned so much and one of the things I love about doing this is that every time it's like inspiration and my inspiration meter right now is through my head, so I can't wait to get back in there. I've learned so much and congratulations to you, your client. I guess one more quick question is, assuming you're able to collect on this, what kind of difference would it make to your client?

It would be huge. His mom is disabled, so her house is set up with ramps and it's handicap accessible, all that, and he still has a room there and that's his number one goal. It's his family's number one goal is to try to get him home. And right now they don't have the ability to do that.

Alright, and when you collect, he'll be able to do that.

We hope so.

Doesn't that just make you all feel so great about the job that we all do? That is what it is for. It's so amazing. Paige, Jessica, Randy, thank you so much for coming onto the program. I hope that our listeners have learned as much as I have and until next time, everybody keep getting in that arena and keep kicking butt. Thanks everybody. Thanks

Keith. Thank you.

Thank you for joining us. We hope you've gained valuable insights and inspiration from today's courtroom warriors. And thank you for being in the arena. Make sure to subscribe and join us next time as we continue to dissect real cases and learn from Colorado's top trial lawyers. Our mission is to empower our legal community, helping us to become better trial lawyers to effectively represent our clients. Keep your connection to Colorado's best trial lawyers alive@www.thectc.com.