Fun fact: Rapper Harvey "Frzy" Daniels and famed horror makeup artist Tom Savini are both depicted on murals, created by the same artist. Their lives converged in another, more dramatic way when Frzy was injured in a hit-and-run. Brandon Keller represented the rapper against the makeup artist, who was tracked down, in part, by his “IZOMBIE” license plate. In this case breakdown with host Brendan Lupetin, Brandon reveals the challenges he faced – including an eyewitness who ghosted him for two years – and the strategies that ultimately led to a $225,000 verdict.

Learn More and Connect

☑️ Brandon Keller | LinkedIn

☑️ Ainsman Levine on LinkedIn | Facebook

☑️ Brendan Lupetin | LinkedIn

☑️ Lupetin & Unatin, LLC

☑️ Connect: Facebook | LinkedIn | YouTube

☑️ Subscribe: Apple Podcasts | Spotify | YouTube

Episode Preview

1. Daniels v. Savini involved Harvey "Frzy" Daniels, a Pittsburgh rapper, and famed makeup artist Tom Savini, who has worked for horror legend George Romero.
2. Frzy was leaving a meeting with a music video director when his motorcycle was sideswiped by a black Dodge Charger.
3. The driver’s “IZOMBIE” license plate was initially transcribed incorrectly as "IVOMBIE,” creating early delays in the investigation.
4. The 911 call was compelling: You could hear Frzy on the ground as the eyewitness's cousin tells him, "We got the plate."
5. The defendant initially denied driving the vehicle, signing an affidavit with his insurance company stating he did not do it and would have remembered if he had.
6. The defense's last offer was $6,700, made right after the eyewitness deposition.
7. Brandon chose to seek only non-economic damages, not wanting to give the jury any benchmark number that might limit their award for pain and suffering.
8. The jury awarded $150,000 for past pain and suffering and $75,000 for future pain and suffering, totaling $225,000.

Ready to refer or collaborate on med mal, medical negligence, and catastrophic injury cases? Visit our attorney referral page at PAMedMal.com/Refer. We handle cases in Pennsylvania and across the United States.

Produced and Powered by LawPods

This was a hit and run. Mr. Daniels was on his motorcycle. It's kind of weird for me to call him "Mr. Daniels." I know him as Frzy, right? So, he's a rapper. The person owning the vehicle was Tom Savini, a famed makeup artist and director. Worked with George Romero. I kind of framed it like the incident itself was a scene from a movie.

Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of just verdicts for just cases. Join us for in- depth interviews and discussions of cutting edge trial strategies that will give you the keys to conquering the courtroom. Produced and powered by LawPods.

Welcome to another installment of Just Verdicts. Your host, Brendan Lupetin, and with me today is Brandon Keller from Ainsman Levine. Brandon, thanks for hanging in there with me today.

Of course. Thanks for having me. I appreciate it.

Seems to be sort of an ongoing thing with me personally. Had some tech issues, getting logged in, new password, and you were kind enough and gracious enough to hang in there so that we could talk about this great verdict I heard about in the Daniels versus Savini case. And anybody from Pittsburgh may start to have their ears perk up about the last name of the defendant in this case. But before we get into that case, Brandon, just want to hear a little bit about your background. I've got tons of other friends at your law firm, and I know that you have been doing plaintiff's work entirely since you graduated law school, or were you doing defense a little bit?

No, I did criminal defense at a law school. So I went to Duquesne and my third year there, I did an externship for the public defender's office, and I knew that's kind of where I wanted to start my career. And so I spent three years at the public defender's office doing criminal defense work, and then kind of did my own thing for three years, doing criminal defense work, both state and federal, and then found myself kind of transferring over to the plaintiff's side of civil work. So now for about the last six and a half years or so, a little mixed bag.

What drew you from criminal defense and criminal practice in general over to the plaintiff's side?

I was getting calls from folks who either personally or other attorneys who were referring me personal injury cases and kept happening more and more. And I said, "Listen, I'm just doing criminal defense right now." But it was always intriguing to me because it's the same sort of mentality going from criminal defense to plaintiff side personal injury, in my opinion, because it's kind of like you are a little bit of a David and Goliath situation, right? You have the accused versus the government, you have this injured person versus an insurance company. And so it fit with my background. And so I started to get interested in it, saw an opportunity to kind of switch over and kind of stop, take a pause from doing the criminal defense work and start with a plaintiff's firm. So kind of how it happened, it was a natural shift for me.

Let's do a little psychoanalysis for a minute. So as you just mentioned, doing work, criminal defense, doing plaintiff's work, both publicly carry some stigma. Even though you are really representing the little guy, David and Goliath, however you want to frame it, I'm not quite sure what the term is, but people kind of have at times like how can you do that kind of work feelings? And at least personally, I think there was things I can always see in myself as a kid that I don't know if it was like disobeying authority or standing up to authority or doing something, a little bit of a rebel rouser. As you look back in your life, what seems like you were just naturally gravitating towards that side and trying to stick up for the little guy. What do you think was your motivation?

I think it kind of goes back to college. So I studied a mix of political science, communications and theater arts in college. And during that time, it was kind of the winding down of Bush administration. And I took a constitutional law class right when I was starting to learn about the fact that there were folks being held in Guantanamo Bay without due process. And I was learning about these attorneys that were going down there and representing these folks. And I felt very, it was very intriguing that sort of ethical line that was being walked at that time by these folks, but I found it so admirable that their belief in the process was so strong that they thought, "Listen, this is an injustice and I don't care what these folks are accused of. It could be the worst thing in the world. They still are entitled to due process." That was very inspirational for me.

And I think that's why I went to law school. It was something I had thought of, but I think that was a time in my life that really cemented that path for me. And so I think that kind of translated into going into law school, learning about the public defender's office. And I kind of always had this belief in a system, but the system only working when those who are in the shoes of the accused are fought for with vigor. And if you don't fight for the folks that have all the evidence stacked against them in court, then you're going to make trouble for the whole system. So it's about holding the line and supporting folks who are feeling very powerless against a much larger entity than themselves.

I love that idea of holding the line in the sense that whether it's the criminal justice system or the civil justice system, it's obviously far from perfect. I don't think there can be a perfect system, but personally it resonates with me the way that it kind of shakes out. It's one side gets an attorney to hopefully zealously advocate for them within ethical boundaries and the other has that. And then this group of people listens to both sides of it. And I don't even think it's necessarily like the truth necessary comes out or true. It's justice. I guess it must be justice, so to speak, but there's always lots of injustices depending on which side of the verdict that you're on. But I still like to think that big picture on the whole, it's a great process because of that. It's not one sided. It's not just a unilateral decision and people don't get a chance to defend themself or try to prove their case if they felt that they were civilly wrong.

So yeah, I can't say I had as noble of a motivation as you did thinking about the need for representation and the due process rights of some of the people that were in Guantanamo, but I still overall, I think it's an awesome system and happy to be a part of it.

Yeah, you're holding them to their burden.

No, it's just interesting to think about how it really has a much larger reach in our society than I think that people really think about. It's like the ultimate, we can all do and live our lives however we want, but there will be consequences most likely in one form or another. So let's talk about the Daniels v. Savini case. So take me way back to the beginning. Did Harvey Daniels come to you as, like you had mentioned earlier, people kind of calling you, "Hey, Brandon, can you help me with this case?" Was it through personal connections or was it through the firm? How'd that even start off from the beginning?

It was through the firm. And I was looking back lucky enough to be able to help Mr. Daniels. His fiance at the time was calling because he was still getting treated the day of the accident was kind of when I was able to make first contact. So we got that one through the firm.

So walk me through. He's still getting treatment. His fiance calls, tells you, "My fiance's been in a crash." And what were the initial sort of hurdles with the case as you start digging into it?

Yeah. So we realized right away that there was an issue because what I was being told was that this was a hit and run. Mr. Daniels was on his motorcycle. It's kind of weird for me to call him Mr. Daniels. I know him as Frzy. So he's a rapper, he's a recording

Artist. Well, I mean, let's take a second there because I think that's basically sort of like two celebrities are the parties in this case. So it's Frzy? Yeah,

That's right. And he's

A hip hop artist.

That's right.

Awesome.

Yeah. He was on his motorcycle. He was leaving a meeting with a director to meet about shooting a music video in Bakery Square. He's on his motorcycle. He's all geared up and he's going down Penn Avenue. He gets sideswiped by a black Dodge Charger and the car takes off. Luckily, there was an eyewitness who got the license plate and there was a house right on the corner where the accident took place and there was a Ring doorbell camera. So we got all this information right off the jump. We have a Ring doorbell camera, we have an eyewitness. Unfortunately, the eyewitness kind of gave their number and that was it. So there was some hunting down to do, which I'm sure we'll get into in a bit. So we had a hit and run case with not an immediately identifiable defendant. Those were the immediate kind of issues that I knew we had ahead of us.

So I'm having a total super small world thing here. I think that Harvey Daniels, a. K.a. Frzy, has done focus groups with me in the past. You'll have to ask him about that because I was just looking him up and I remember that the name is sort of a unique name, Harvey Daniels. And I looked him up. I'm like, I am 99% sure that he has been in my focus groups years ago, years ago. It's been a long time. But wow, that's crazy. Cool. So kind of take us up to why does this case have to be tried and what do you do to kind of meet your evidentiary burden as we talked about?

Sure. So the liability dispute started on day one and it continued through trial three years later. So we first tried to figure out, okay, did police respond? Yes, they did. They did come. And once we finally got the police report, they identified an eyewitness. Great start. We have an eyewitness. We also have a license plate. The license plate reads, "IZOMBIE." Pretty unique. And when it was reported by 911 originally, they took it down as Ivombie, I- V-O-M-B-I-E. So there were a lot of things that happened at the beginning that kind of delayed getting the information we needed, but eventually we got the police report. The witness on the police report, there was no name, only a phone number. And so the way that the officer explained it to me, because I was able to make contact with the City of Pittsburgh police officer, she said, "Yeah, we must have got that number from the 911 call." I'm like, "No name, no information, no contact information.

What did you learn from this person?" And there really was, they said the driver had this black Dodge Charger and the license plate said IZOMBIE. "All right, clearly I have to talk to this person." So once we got the phone number from the police report, nothing, absolutely nothing. Frzy remembered that the person's name was Reese. We just could not get ahold of Reese. No matter all the background checks we could do, investigations, we just could not find this person.

Phone number was dead or something or?

Phone number dead, phone number completely dead. So I pulled the 911 call. Now I do it thinking, well, I'm just going to get someone not saying their name and giving that number. It's not really going to help me, but I do it anyway. And it turns out the number given on the 911 call is different than the number that's on the police report, which was very surprising because I'm like, "Well, where did the officer get this number? Did the officer listen to the 911 call?" And the call's compelling. You can hear it in the person's voice. They just saw something dramatic. They just saw hit and run. They got the license plate. It's IZOMBIE.That's very clearly what it says. And it was very surprising to me that the number was different. So we did a reverse lookup on this person. I was able to identify her.

I got her to agree to meet me at a Panera and we talked about the case. She filled out an affidavit. I said, "Okay." Turns out she used to work for Allegheny County Probation. For my public defender days, I believe I had run into her. So we're like, "Oh, great. We got our witness.

We got our witness." What was her vantage point, by the way? Was she another driver? Was she just standing there? How did she fit into it?

She was another driver behind the collision. She had her cousin in the car in the passenger seat. And you could hear her cousin talking to Frzy in the background of the 911 call. That's the other helpful thing in the 911 call. So you can actually hear Frzy and you can picture him laying on the ground talking to this person and they're saying, "We got the plate. We got the plate." You can hear them telling him that. So there's a lot of drama just in that phone call. And Frzy himself didn't see the license plate.He knew it was a black Dodge Charger, but he couldn't see inside the car. His helmet had a tint advisor, so that probably didn't help much trying to look in. Plus he really had a millisecond before he was hit. His story's been rock solid, the same truth from the get- go.

It really was just these other pieces we had to collect to really build the case. From there, after my meeting with the eyewitness, she proceeded to ghost me for two years. Yay. That was really tough.

But you had your affidavit at least.

I had my affidavit. I had the video, which was kind of fuzzy.You couldn't see a license plate on the video, but you tell it's a black muscle car. That's what I had. This was a case where if the defense admitted liability, you can see it settling. Mr. Daniels was transported to Shadyside. Actually, his fiance took him to Shayside, UPMC Shady Side. He had an injury to his wrist. He had injury to his leg. So when he hit the ground, he hit on the right side. So he had road rash on his right side. He injured his wrist, he injured his right leg. So he was in a wrist for months. He was in a boot for months. No paralysis, no major surgery. He recovered with physical therapy that he did mostly on his own. So this was a kind of case where had the defense admitted liability, we thought this could be one week could possibly settle.

It just didn't turn out that way.

So procedurally, what do you do at that point? Now that you've got the license plate, you've got the phone number. How do you figure out who the defendant driver is? Are you able to do a license plate search?

Right. So we had to wait. We did a license plate search, but before we even got those results back, we did get a supplemental police report from the officer. She did end up finding out that the person owning the vehicle was Tom Savini, who is a famed makeup artist and director. Worked with George Romero, kind of a local legend in the horror film scene.

Was it Dawn of The Living Dead in all those movies, right?

Right. Yeah. That's right. And he still does, he works for WWE and he does masks for them. He's in some horror movies here and there. He's very active. He's been in the industry for decades. Fun side fact about this case, both Savini and Frzy each have murals up in the city, like on the side of

Buildings. Oh, really?

Yeah. And the same artist did them. So it was very kind of- That's crazy. What a bizarre thing. But the officer, according to the report, and according to my emails with her, went to his house, took a look at his car, they talked. And then my emails with the officer afterwards like, "Hey, so your investigation's done or ongoing or could you give me an update?" And she's like, "He said you didn't do it, so you guys are doing this civilly, right?" And she had told me she had a conversation with Frzy. And I think from that conversation, obviously she's not here to say what the conversation was, so I'll give her the benefit of the doubt. But what I will say is Frzy's impression after that conversation was, "This isn't going to be helpful. We better just do this civilly. It doesn't look like there's going to be any hit and run charges filed."

Did the officer tell you whether ... I mean, did she confirm whether there was any property damage or anything to Safini's car?

She said she didn't see any. So that was one of the issues in the case. Now, the impact to Frzy was to his ... Initially, because he was on a motorcycle, it was to his right side. So the vehicle, it was like a glancing kind of a blow to his right knee area at first. He merged essentially into his lane. So he kind of went through Frzy and so first was his knee and then kind of threw the bike. So the question is what sort of damage might show up on that? That was a question at trial. I think it was kind of when you listened to the way he described the accident, when you watched the video, you can tell that this kind of accident where it wouldn't leave any sort of tremendous damage or possibly no damage at all to the vehicle.

But I mean, in a sense though, if there's a video that shows some aspect of this incident, there's the license plate. Of course, defense lawyers are always going to find something to quibble over, but what does it really matter whether there is property damage or not, right?

Yeah, that was my thought. Now, that was my thought. The defense theory as we kind of came clear was that this person misidentified the driver. There must have been an identical looking black Dodge Charger.

Maybe it was the iVombie. Maybe it was iVombie.

Right. Right, exactly. Maybe it was this iVombie car. No, I think their defense, they put a lot of stake into the eyewitness's credibility. They said she wasn't immediately behind the car. By the time we're thinking that ... Let's say she did see this and maybe it was a dark colored car. And by the time she caught up to the car, it was a misidentification. There was too much traffic. There was some sort of issue with her credibility in stating this was the car. Right. That was the defense. Now, this really ramped up about, I want to say six months before trial. We had a trial date set. I get a text from the eyewitness who I hadn't heard from in two years. I subpoenaed her for trial, which she did accept that subpoena. I then sent her a letter saying, "Let's avoid trial and just do this prerecorded videotape over Zoom, make it easy for you.

I'll do it at night. I'll do it on a weekend. I'll do literally whatever you want. I need this testimony in the can. "

Nothing. I went myself to her house. She wasn't there or didn't answer the door. And I sent out an investigator a second time to deliver a subpoena for the prerecorded videotaped deposition. Silence. In this time, just before, actually it was just before those series of events of trying to contact her, she texts me a photo of the back of the car saying, "Hey, forgot. We got this photo. Thought you might want it. " Never was brought up before and never told me that she had a photo. And then now six months before trial, I have this photo. So I immediately give it to the defense. And that's when I really start pressing for getting this testimony again. I'm like, "Hey, thanks for the photo. Doesn't mean anything unless you can testify." So the defense was really, I think, banking on me not being able to get her testimony.

Right. So I can see that strategy possibly. But then I have the prerecorded deposition scheduled. We're waiting in the Zoom room. My last ditch effort, 10 minutes before I text her, I said, "Your deposition starts in 10 minutes. Here's the link. It will be brief." And she showed up and defense counsel and I, we were both shocked. I had to really get into my notes. I'm like, "I cannot believe she's here. I can't believe she's here." She showed up in a car and was not happy.

So she's in her car on her phone doing that Zoom. I kind of like those actually. For trial, I had a case like that and I feel like it comes off kind of extra credible. You know what I mean? It's not all prepped with the thing in the background. It's like, no, this is just this person getting pulled out of their life and no skin in the game. My two cents, but-

I couldn't agree more. And it's specifically relevant to this case because get to this when we talk about arguments and stuff, but that to me, the fact that she visibly didn't want to participate also increased her credibility, in my opinion. At the scene, she was a good Samaritan and she's what everyone would want to happen. If you got hit by a car, you'd want someone like her to call 911 and see if you're okay. She didn't want to participate in the process of it. And so it was clear she wasn't on anybody's team. So she wasn't on our team. She didn't know the defendant. She just had this lawyer that wouldn't stop harassing her to try to show up and testify. She didn't want to be there and she took an oath and she did her duty and she showed up and she doesn't have any skin in the game.

So I think to your point, number one, the informality of the video I thought was good. And number two, just her not wanting to be there. I honestly think it increased her credibility.

Yeah, absolutely. And she's in the car, maybe the same car in which she witnessed everything, right?

That's right. You can almost kind of picture

It. Yeah. It's funny how stuff that works out. You're like, "Ideally, I would like her to come into the office and do this, but it actually may have worked out better that way." Did you take Savini's deposition?

I did.

How was that? So I guess one of the big things we didn't cover, did he continue to deny that this was him or did he concede at some point or did he just say, "I don't know. I don't remember."

It was an interesting spectrum of that. So from day one, I mean, he signed an affidavit of not involved with his insurance company. So it was like, I did not do this. I would've remembered, I would've pulled over and I didn't do this. After the officer came to his home, there was a note that I brought up during his deposition where he called his insurance company and said, "I'm worried there's a possibility that I did this and I don't know that I did it. " And they responded, "Don't worry. If the evidence is there, we'll pay up to the limits of the policy." Which I thought was an interesting little note for them to tell him that and then not do that.

So you had that in the claims notes that showed up?

Yeah.

Oh, interesting. Okay.

So I brought that up at deposition. I'm like, "Did you at some point after the officer left your house think that? " He's like, "Well, I mean, anything's possible." It's kind of how he was saying. He's like, "Anything's possible." I'm like, "Are you testifying right now that it's possible you did that? " He's like, "Thinking about it, just at the end of the day, no, I didn't. I mean, is it possible? Sure, but I didn't." That was kind of his take, right?

Interesting testimony. How much coverage did he have, by the way?

25,000.

Oh, wow. And so don't worry, we'll pay up to that and then you're good. Yeah. Wow. For a lot of reasons, that's surprising, but-

Yes, exactly. And that's why after the deposition of the eyewitness, I'm like, "We got it now. Liability's locked in. Yes, Frzy didn't lose a leg and he can walk and he's recovered."

Yeah, but he's good. He's got an injury.

So I'm like, "Oh, they're going to tender." And then I get a call right after the deposition. I'm like, "Here we go. We're finally going to wrap this up." And he's like, "Yeah, we're good at where we are. " And it's in my delayed damages motion so I can say, so the last offer was $6,700.

Oh, wow. Crazy.

Yeah. I mean, it makes the decision very easy. It does.

Yeah, no doubt, which is nice. I know.

It is nice because you go in and there's a little less pressure. It's like, what else are we going to do? We're going to rumble. Without a doubt.

So now you know you're going to trial. And was that, we're going to stamp Pat at that offer, was that after the eyewitness deposition. Wow, that's crazy. Yeah. All right. So now you know you're going to trial. It's sort of interesting. How do you frame the case? I would imagine you just are taking the point. This guy did this. We've got eyewitness pretty darn near slammed uncle evidence of that and they just won't accept responsibility.

The way that I framed it, I wanted to concentrate a lot on liability. Even though I felt our liability case was strong and the damages were kind of more of a question, like where are they going to go with it? But I wanted to hammer home where we had our strengths. And so I framed it focusing on Savini, almost kind of remembering what it felt like when I was a defense attorney and watching a prosecutor obliterate my client in opening statements. And it kind of felt weird to put that hat on a little bit because that's how I felt. I haven't had a opportunity to do that. It made this a very unique trial. So I kind of framed it like the incident itself was a scene from a movie and talking about the different angles, like we're going to bring you, and this kind of goes in the openings, but I was like, "We're going to bring you every angle we could possibly find of that scene." I walked him through kind of first person what Frzy went through when he was smashed off the motorcycle and slid in a daze and scrambling to the side of the road so he doesn't get hit by oncoming traffic and saying, and then kind of ending the scene when the eyewitness pulls up and says, "We got the plate," ending it there.

And I'm saying, "That scene I just described for you, you're going to get that from all kinds of different angles. You're going to get it from the video. You're going to get it from an eyewitness. You're going to get it from the 911 call." Who I had to bring in the county rep because they wouldn't stipulate to the 911 call. And I kind of walked them through the evidence that way and made it clear to them that we're dealing with a defendant that has had a career of altering reality and asking for you to upset. And he's doing that right now and you can't accept it, not with all this evidence. So I essentially kind of made it about, I kind of made my theme, this was a horror movie that Frzy was living through. It was kind of there with the defendant. I'm concentrating on the defendant, what's he do for a living?

What's he doing right now in front of the jury? And I told him in opening, I said, listen, so I walked him through every witness and I said, "This is an opportunity to have this behind Mr. Daniels. It's an opportunity to finally deliver justice, but it's actually maybe even just as importantly an opportunity for Mr. Cavini to finally own up to what he did." That's why he's my last witness. So I called him as if on direct and I let the jury know I'm going to ask him some questions, but ultimately I'm just going to see if after sitting through all this evidence again, whether he'll finally own up to it and I want you to listen to his answer very carefully. And that was kind of how I wanted to empower the jury just for them to wait and see what he had to say because based on his deposition, he wasn't going to own up to it.

Yeah, that's great. I mean, there were so many cool things there that you just touched on. And yeah, it's like take what you're giving in a very unique case with a unique defendant, unique plaintiff, but I think that's so clever to frame it as a horror show for Harvey, altered reality of Savini and just how that all ties together. That's really cool. Walk me through sort of then what was your order of proof? Who was your first witness? And then did you have a doctor testify about his injuries or not necessarily?

Interesting how we didn't get there yet. It's because we did not. I had named ... He treated with the emergency room, he treated with an orthopedist at the hospital. He was given instructions on how to do physical therapy. That's what he did. And so I made it clear in my pretrial statement, I filed an amended pretrial statement saying, "You know what? We're not doing an expert medical witness. We are going to have him testify to his obvious injuries, which is what the case law is. If the injury is obvious, you can testify to it without a medical expert." Now to bolster that, I had his gear. I had his motorcycle helmet, which was scuffed up. I had his jacket where there was a dent in the shoulder where the car and the ground hit. I had his boots that had holes in it, which lined up where his scarring was on his foot.

I had his gloves that were torn here, which lined up with where his pain was and where his wrist brace was. And they saw the holes in the gloves. So because I had that evidence, we were pretty confident that if there's an obvious injury, this is it and it's on video and you can hear it. The video, the audio's really striking. You can hear his body scraping on the ground in his ear. We chose for a number of reasons to go without an expert and we wanted to kind of go bare bones with this a little bit and just concentrate. I wanted to focus on liability and try to go bare bones, one attorney, no electronic assistance and no medical expert. Just trying to essentially paint this even though it's a person versus another person is a little bit more of a kind of a David and Goliath situation or just trying to not overload our side so much.

That's the message we kind of wanted to portray.

Well, I think I love that that's your thought process too, but I think for anybody listening, especially younger lawyers or people that haven't tried a lot of lawyers, I mean, you have to be mindful of the cost of the case for the client as well. And right now they're offering you 6,500 bucks or whatever it was. And obviously you're trying to be 25 their policy limit, but still, I mean, why dump? Dr. Depo's going to be 5,000 to maybe more. Trial tech is going to be a crap ton. You know what I mean? And so you have to make those, I think, decisions not just in like, "Oh, what would be the ideal way that I would do this? " And that's not to say that you didn't do that anyway, but you have to think about the whole picture. At the end of the day, it's for the client who really cares if you get a decent verdict, three quarters of it's eaten up by how much it took you to prosecute the case.

So I just think that's a good takeaway because I've had some of those cases in the course of my career where I got good outcomes with a very, very bare bones approach. And I just think we have to be thinking about all the different ways that we can present a case. And it's not always just kind of like cookie cutter, we do this, we always get the medical expert. And it also sounded, I mean, in your case, after that ER visit, and it sounds like maybe, was it one ortho visit? Yep.

What's the orthopedist really even going to bring or whomever you would've brought anyway to the case?

Well, there was one, I will say this, there was one issue, he did have a ruptured ligament in his wrist, which that sounds serious because it is serious. And there was no formal motions practice on that, which I thought was interesting, but it was brought up during kind of pretrial arguments that, "Hey, he can't testify he has a tear or a rushed ligament in his wrist. That's not obvious." And I didn't put up a fight on it because I thought if that's their only issue and they're going to let me go on everything else, sold, great, I'm happy to not use a medical term throughout this whole trial. That's fine. And that's what we did. Give a lot of credit to the firm too, because we had some conversations here where like, "Listen, 25 policy recovered injuries, is this an arbitration case?" We had some discussions about that and it's like, "No, this is a jury case.

We're not going to get the same result." And even if we break 25, they're going to appeal it anyway. So it's like, this is not the kind of case to say, "Yeah, he didn't get a surgery and it's not something you'd put in the catastrophic column, and so let's just settle it or send it to arbitration." I felt very supported in the decision to say, "Go get him."

Awesome. So now that we've covered the way that you approached medical in the case, so were the witnesses, Harvey, Savini, eyewitness on tape, anybody else?

Yeah, it was Harvey, the order was Harvey, and then Robert Barco from Allegheny County to come introduce the 911 tape. And then it was the eyewitness and then it was Savini and that was the case. I used Frzy as a way to set the scene. So first I introduced him as a person, which was a real pleasure because he's fantastic. I had the benefit of an A+ plaintiff. That is something that cannot be understated. It's funny because voir dire was interesting because we learned things about the jury that fit with his background, certain jurors. So we had a juror from Swickley. He's on the board at Lindsey Theater. So I made sure that that was brought up that when I introduced him throughout the wreck, I volunteered at Thawn, which is the big Penn State fundraiser. Two of our jurors went to Penn State and they were in IT.

We were able to craft our direct examination based on the charity work he has done and matching it with jurors that were sitting in the box. So I kind of walked him through his background, but tailoring it a little bit to the juror. And then he had his own Eaton Park Smiley cookie.That appeals to everybody. It's really cool. He went in there and I put the photo up and he volunteered at the children's hospital. And I wanted to start there with him because I did get feedback on a case I tried years ago where a juror was like, "I wish I would've got to know your client a little bit more." And I took that very seriously because I'm like, "You're right. I mean, we're asking to have you award this person money. You should get to know who they are. " And so not to mention I had the benefit of this of him being A+.

So that was really cool. Did that, drew objections towards the end of that part, but moved on to talk about setting the scene. So we did a lot of, throughout his testimony, I entered 30 exhibits, which the judge was like, tell was getting a little bit exasperated, but I wanted to really make sure that I could ... I needed to set up my closing and I needed to have these Google aerial maps of the neighborhood slowly zoomed in, entering each one as I zoom in so that I could lay out exactly how the accident happened and how this eyewitness could not have misidentified this car. So I used Frzy to set the scene and then eventually talked about the app.

So kind of laid everything out with him. Out of curiosity, how did you ... I know you're focusing on him as a person sort of creating that great impression that he could. How did you have him talk about his injuries? Had he gotten over them? Was he still being nagged by them? And what was the extent to which he described his injuries? Was it just the things that he could see and that he could show in the emergency room or the orthopedist, that kind of thing?

Part of the 30 exhibits was his medical devices. So I brought his cane, I brought his boot, I had his wrist brace. So I had him talk about the experience of having his skin ripped by the asphalt. I had him talk about the experience of how he felt at the emergency room. I had a photo of him at the emergency room in his brace and his cane in his boot. We kind of talked about how that day felt. We then talked about the injuries just by body part, starting with the wrist, talking about you had this wrist brace and I knew I couldn't talk about the rupture, but what I could talk about was, why did you need this brace? I had him describe why he needed the medical devices that he used. And so by basing the direct examination on the devices, I had him walk the jury through.

I needed this because if I couldn't use my wrist brace, there was constant pain and I couldn't even grip anything. If I didn't have my boot, I couldn't walk because of the pain I was having in my leg. So I used the medical devices to try to visualize for the jury, but you have him walk through, "Why did you need this? What would happen if you didn't use this boot? What would happen if you didn't use this wrist brace?" I also had him walk through the fact that he had a major injury in high school and rehabbed it himself at the gym. So I set it up for the jury that he was very experienced in doing this. He had a major, like an ACL MCL tear that he rehabbed himself. He played basketball. Actually went to Clemson to play basketball for a couple seasons.

And so I kind of established with the jury that this is someone who, despite how, and he's a big guy and he's muscular. Despite how this guy appears seeing him on the street, he needed these things and he's going to describe to you exactly why he needed them and the pain levels and what it took to get over them.

Did his injuries impact his career at all?

So he had a pre-scheduled conference. He was speaking at a music conference in New York actually scheduled two weeks after his injury. He's there kind of on the stage, like being a panel member. They were talking about using the music industry to give back. So it was very like a positive thing. So he's there with his cane, his brace on and his boot, and it didn't impact his career to the extent that I could say to the jury, he couldn't fulfill 10 gigs that he had lined up and it affected him that way. Instead, it concentrated on the extra pain that he had to go through because he doesn't have a nine to five job. He doesn't have PTO days. This is a guy chasing his dreams and that's hard. This is someone that wakes up every day and has to grind. So I concentrated more on the fact that, not that he lost work, but the fact that his life demands that he's always moving.

I had him testify about how many steps. I was like, "Hey, do you know how many steps you've taken a day?" Because we talked about the use of his Apple Watch. So I was trying to tease out how many painful steps he would've been taking in the months after the accident. So we kind of talked about that as well. It's not that he wasn't taking the steps, he had to, but it was just about how painful those steps were.

Awesome. Well, I mean, it sounds like you really did do a great job taking a heart what that juror said. I mean, really working up and explaining. And you're right. I mean, when you have a great ... He's literally a world-class performer. You don't get a lot of clients that just have that natural capability. I mean, he's going to just naturally know how to A, perform. In the moment, he's not going to get all worked up and nervous, and he's going to know how to connect with people on top of it. And he's got a great story, truly an A+. And so now what I'm curious about is, so what happened when Savini gets up there? What does he ultimately do? You did a great job of kind of teasing it and opening the, "Hey, I'm going to call this guy last and let's see what he has to say." So how did it play out?

My plan was to essentially ask him one question like, "Will you finally admit that you did this? " But the setup to that question was walking through all of the evidence again. You saw this, right? You saw this video. That looks like a Black Dodge Charger on that surveillance video, doesn't it? Well, I'm not very good with cars. Okay, well, we'll zoom in. And this goes back to why I did the 30 exhibits to begin with. I had the video, but I had the video. I knew he was going to talk a lot because the deposition, like his attorney had to step in at times. So I based it on that and I wanted him to do that. And sometimes he did. He didn't do it as much as I expected, but he did a little bit. So the exhibits that I would put in front of him, I had prepared the video.

I used DaVinci Resolve to take the surveillance video, but then have zoomed in versions of the video, one focusing on kind of the body you see falling on the pavement, and then the other one focusing on the car. And then the very last frame of the video where you see the back end of the car, you see kind of that distinctive muscle car build on the back with a spoiler on top. So he's like, "I can't really see it. It's fuzzy." I'm like, "That's fine. I'll show you the zoomed inversion that's already in evidence." I didn't let him off the hook on, "I don't know. I can't see that. I'm not really sure." I just kept putting the evidence back in front of him and getting him to admit observations about the evidence. So I'd say, "Yubri, that looks like a black muscle car." He's like, "I'm not really in the cars." That's what he says.

I'm like, "Well, let me zoom in. You agree that in fact, that looks like your car." And he gave me a yes on that, which I couldn't believe. And so I essentially walked him through all of the bits of evidence. I'm like, "You don't know this person, this eyewitness. They don't have anything against you. You drive this car. You don't ever let anybody borrow it. You were in the area because you were working that day. You live in Bloomfield, you're right down the road." And kind of getting him to agree, the first part of it, just getting to agree to the basics, getting him in a rhythm of yes, but got a little confrontational maybe a couple minutes in and I just wouldn't let him off the hook. I just kept showing him the evidence. I'm like, "I'll show you the zoomed in version. You didn't see anybody falling onto the ground there.

I'll show it to you again." And at the end just said, "Now that you've seen this, now I think for the umpteenth time, we finally admit to this jury and to Mr. Daniels that you hit him and took off." And then it was kind of a ... The same story and I just sat down.

But he wouldn't accept responsibility, which it's kind of great because I mean, that's one of those situations. I mean, he's kind of cooked either way, either admits it or he doesn't, and that's probably going to take the jury off.

Yeah. My sit down questions, I don't like to have be kind of open-ended like that, but it didn't matter. And if he did say yes, Mike, I had a plan for that and it would've been just hammering home the fact that it's been three years and this is the first time you've heard it. I mean, I thought there was a small chance he might actually give me that and that would've been an interesting kind of thing to have to address. But he testified as planned and he kind of gave the same excuse.

I teach a trial strategy class at Pitt and then you did the cross-exam section and the kids have been told about, was it Irving Younger's 10 Commandments and never ask a question you don't know the answer to. But there's ones like that that can be really powerful because there's no, whatever they say, it's just not good for them. Either they're going to give you an answer that helps you kind of prove your case definitively or it's going to show them either incredible or just not accepting responsibility. So I like that as a sit down question in a case like this. So he comes off poorly as you kind of expected and incredible. Does the defense call anybody or is that the case?

They called him back as if on direct.

Oh God, the jury's probably like, "Oh, here we go.

" Yeah. So he was asked for a little bit more background and I knew his background. I know his background, not just every year I make a horror film with friends of mine. And so I kind of knew him, didn't know him personally. I hadn't seen him, but the folks that we had interacted with in this process called the 48 Hour Film Project. He's very much known in the circles of the folks that we talk to when we do this fun thing once a year, friends of mine. And so I kind of knew who he was from the get and I kind of knew the stuff that like to his professional background. And as far as the jury knew at that time, I kind of gave them ... He's been in the horror film industry for decades, blah, blah, blah. He's done a lot of charity work and this is generally a person, he's a veteran.

He had a very interesting story about the fact that I think when he was in the military, he actually did filming in Vietnam. It was very interesting. He's an interesting person. The direct was essentially, you're a veteran, kind of walk him through some of those things and trying to get the jury to get to know him a little better than I portrayed him, which what else can you do? Of course you do that. And then kind of just told him, "You didn't do this. Oh, did you do this? " And he's like, "No." And that was essentially it. There really wasn't much else to do. I think defense counsel was in a bind here. It's hard. This is a hard case for them to try to figure out because they can't attack Frzy on what he saw because he admitted he didn't see the person.

That increases his credibility. He's not coming in here and saying that. No, it was definitely him. He was honest from the first moment. And then you have this eyewitness and you have all this stuff. And it's just you have this client, the defendant, who just seems like someone that just won't acknowledge that despite all this evidence, they did it. So I think he was in a tough spot because he didn't challenge the injuries much either because the injuries were resolved. It was a tough kind of defense for them to have to put on. So they tried to rehab him, tried to talk just as far as having to get the jury to know him a little bit and then-

So what were the main points you tried to hit in closing?

Mr. Savini wanted them to view the evidence like you might want of his horror movies through your fingers where you don't really see all of it. That's kind of how I tied in the film thing from the open and just went over the evidence. I tried not to be too exhaustive about it, but I went over the evidence again. I brought a Bluetooth speaker because the audio was not great during the examinations. And I was like, "Oh God, this is ... " Yeah, I know I'm going in bare bones here, but that was one of the drawbacks. So I brought in my own Bluetooth speaker from the house. I put it right next to the jury box and everything came in crystal clear. So that was kind of how I did. I wanted to make sure they heard everything. So we went over that again and I kind of commented on it as it was playing.

I'd take pauses and then comment on, "Oh, you can hear Mr. Daniels in the background here and kind of walk me through the evidence again where I kind of ... The main, I think the hammer as far as liability was, I used those exhibits from Frzy's direct and I used the photo to essentially create an overhead graphic of here's where the accident happened, here's where the video shows the car taking off. Here's where the photo's taken. The photo's taken a half a block away from the accident. There was zero. And so I had all the different angles, all the different, the street views I had that were authenticated, the overhead shot, the photo of the back of the car, and that photo of the back of the car showed that he was at a red light. So it makes sense that the witness caught up to him.

It showed the target in the distance. It showed the Trader Joe's on the right. It showed exactly where the intersection was. So there's no room for misidentification. There just isn't. Just if they saw the accident, they could have caught up with him. That's it. I did have to overcome another argument of theirs that the eyewitnesses video did not show up in the surveillance video, which I thought was an interesting problem for us to have. The video's about 30 seconds long and the eyewitness couldn't identify her car in that video. So she wasn't immediately behind him when the accident happened. She was a bit back. So that was another thing they leaned on. They leaned on, "Hey, she said to herself she didn't see her car there." So that counts against her for credibility. Now, the video again, it's only 30 seconds long. She had time to catch up.

He hit a red light. So I think the hammer was putting all those things together and then showing a graphic saying, "This is how far he was when he was identified." So I did this as an aside, I kind of phrased it that way where ... And I struggled on whether to work this in, but the morning of my closing, I was like, "I'm going to do it. " It was just something that was this fun thing. I was like, "I don't know, is this too much of a reach?" But I did it anyway. So I said, "Fun story," and not fun story. I was like, "Listen, it's a story for you guys. I promise it's relevant." I said I was driving home after court yesterday and the song came on the radio and it brought me right back in here because I was wondering what Tom Savini was going to testify to today.

And I told him the song, it was about this guy who got caught cheating on his girlfriend and no matter what evidence was put in front of him, he just kept denying it and saying it wasn't me. So I essentially walked them through a little bit, the lyrics of Shaggy's, it wasn't me and saying that's how absurd this gentleman is sounding with his defense. And he says, just no matter what's put in front of him, it wasn't me. They even caught me on camera. It was one of the lyrics too. It wasn't me. So these are the things that I was kind of relating to the jury. And then when they were first getting it, I saw a couple kind of start to laugh, but then when I mentioned Shaggy's name, I got a good laugh out of them. And so that was fun. But the way I tied it in is I said, I think he thought, what he thought is that if I just say it wasn't me and it didn't happen, that this would just go away.

Just hoping that Frzy wouldn't get the 911 call, wouldn't find a witness, wouldn't get video, wouldn't actually call us on this and have a trial and ask you folks to be here and weigh the evidence. I think that he thought this was just going to go away and you need to show him that that's not the case. And that was the message.

That's great. So how quick deliberation, longer deliberation?

They ate their free lunch and then took the half hour.

You were just claiming non-economics, right?

Yeah. I didn't want to give them ... There was a discussion of whether we tried to work in the cost of the bike and stuff like that. But we're like, you know what? Why give the jury a benchmark at all in this case? Just let them come up with a pain and suffering number without being essentially confined by having that number put in front of them.

And what was the verdict, Brandon?

It was in past pain and suffering. It was $150,000. In future pain and suffering, it was $75,000. So it was 225,000.

Nice. So you 10x the policy and my math sucks, but you like 15 ... Oh no, God, the offer, I mean, it's like a 30, 40 X. So that's amazing. And you guys must have been pretty pumped up that you made the courageous decision not to just orbit and you took it to trial. The jury saw what you kind of knew was the reality of this case.

Yeah, I think we were. I mean, we were thrilled. I wasn't sure what numbers we were looking at, but I was pretty confident it was going to be the plaintiff's verdict. I was until I started that hour before trial, I started putting a shell around myself just in case it was a defense verdict. I'm like, "I don't know. Frzy, I don't know, man. We'll see how it goes." And I'm going in there and I'm like, just to essentially mentally protect myself. I'm like, "Defense verdict, that's what it's going to be. " I don't know if you've ever been in that situation, but ...

Yeah, I don't know. I know it well. And I mean, personally, I'm like, "What is the upside by being overly confident? Oh yeah, we're definitely going to win this one." I don't know. I don't know what the hell people are actually thinking on the jury. You know what I mean?

One of the things that I've reflected on the number a little bit, and I think some of the things that you tend to find in car accident cases just they weren't present here. There were no economics for them to bolster, kind of pitch their boat to. I think a lot of times on these kind of ... In a typical red card, blue car, I think there's a lot of sympathy for the defendant who made a mistake. They say you're not supposed to have sympathy when you make these deliberations. And I think that they took that seriously because it's like this is not that typical case. I think that the reason you're not seeing larger, in some instances, not seeing larger verdicts in cases that folks are like, "Oh geez, are they going to have to pay this personally?" I think a lot of juries get it.

Some of them probably don't, but they're like, "Oh, is this guy going to lose his insurance? Does he have insurance?This person made a mistake. They were negligent, but should we ruin their finances over it? " I just don't think that the defendant here earned any sort of undue sympathy for himself. That's what the jury's supposed to do. They're supposed to say, "Listen, what's it worth to have your skin scraped off on the asphalt?" And then, I mean, we talked about emotional damages too. I mean, he hadn't been on a motorcycle since he acted. And I told the jury, I was like, "Listen, even if he does get back on one, he's going to be looking over his shoulder for a black muscle car for the rest of his life." I mean, that's traumatic. So I think they took that very seriously and he did a good job expressing that too.

Is there an appeal?

Post-trial motions, and that's pending argument. Motions that were filed were excessive verdict and the photo of the back of the vehicle was not properly authenticated.

I think you're on good ground.

Yeah. The eyewitness's cousin was in the front seat and she took the photograph. And so there was a question of the eyewitness's testimony, was it inconsistent saying, "Oh, I took the photograph. Actually, it was somebody else or not. " It just seems like a reach. Yeah, the trial court has vast discretion on that question. I don't

Want to jinx you, but it sounds like a lock to me. We'll see. So what? Now you're

Just- I'm putting the shell back around myself right now, Brandon.

I know. And I'm not going to try to take the shell off to you, but from my seat, it sounds like you're just making good interest on your verdict right now. Well, Brandon, that was awesome. Really cool story. I'm sure that's a trial you'll remember and tell the story of probably for the rest of your life. I mean, how could you forget one with such unique parties and circumstances and everything? And again, go back to the beginning though, that is the result of all of your efforts to get all of that evidence. There's a lot of lawyers that are not getting the 911 call. There's a lot of lawyers that aren't tracking down endlessly like, okay, we got the wrong number. There's got to be something more to this, finding that witness, meeting them, sticking with it, going to their house. That's tenacious lawyering. That is the real sort of foundation for why that case came together.

So kudos to you, man, and your firm for going and trying that case.That's great stuff, good story. I appreciate you sharing it with us, Brandon.

Thanks, Brent.

Yeah, it was great. Really cool, just all around. And I will see you around soon and hear about more of your great verdicts in the future, okay?

Of course. I appreciate you having me on.

All right, man. Talk to you soon.

If you enjoy the show, please subscribe to the Just Verdicts podcast on your favorite platform and consider leaving a review. And if you're interested in co-counseling, local counseling or referring a catastrophic injury case, we'd love to work with you. Call us at 412-281-4100 or visit our attorney referral page at pamedmal.com/refer. Thanks for listening.