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Trial

$1.58M Verdict in Thurston County

 

In May 2014, Frank Ladenburg tried a personal injury case in Thurston County on behalf of a 46-year-old clerical worker.  As a result of a car wreck, the worker suffered a

permanent chronic strain/sprain injury to her mid- and low back, and aggravation of pre-existing arthritis in her right thumb.  The force of the impact jammed her right hand into the steering wheel, causing a previous hand surgery to the hand to fail and leading to a second hand surgery, which also did not turn out well.  The worker continued to work with pain, using mainly her left hand, even learning to write left-handed.  She was eventually terminated from her job because of her inability to perform her clerical job as she did before the accident.

Prior to trial, the woman collected policy limits of $50,000 from the responsible party’s insurance company, in addition to PIP (“Personal Injury Protection”) benefits of $25,000 from her own insurance, State Farm. The woman also had a $100,000 UIM (“Underinsured Motorist”) policy with State Farm. State Farm made no offer of any kind on her $100,000 UIM policy, forcing the woman to go to trial.

Car Accident Personal Injury Case Decision

The woman claimed past and future lost wages of over $1 million, and six figures in past and future medical bills and prescriptions. After the five-day trial, the jury awarded $1,581,400.00 in damages. The Court then allowed the woman to amend her complaint to add an Insurance Fair Conduct Act claim against State Farm. That claim is now being litigated. If the woman is successful, the court will determine if she is eligible to receive triple damages.

 

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TCLMD Congratulates its 2014 Super Lawyers

Every year, Washington lawyers are invited to nominate the top attorneys who they have observed in action. The research staff at Thomson Reuters, a national publisher, also searches for lawyers who have attained certain honors or results.

The candidates are then evaluated based on 12 indicators of peer recognition and professional achievement. Candidates are then grouped according to their primary practice areas, then by categories based on firm size. The attorneys with the highest totals from each category are selected.

In the end, only the top 5% of attorneys nominated are named “Super Lawyers.”

Tacoma Personal Injury Lawyers Named “Super Lawyers”

This year, TCLMDS is proud to announce that three of its attorneys made it on the list: Mike McKasy, John Durkin, and Shelly Speir.  Congratulations, Super Lawyers!

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Mike McKasy Receives Distinguished Alumni Award 

We are pleased to announce that Michael J. McKasy has received a College of Education and Human Development Distinguished Alumni Award from the University of Minnesota.

Personal Injury Attorney in Tacoma

Mike was nominated for the award in recognition of his “commitment to justice as a top U.S. trial attorney and dedication to community service in the field of education.”

The award was created to honor alumni who have distinguished themselves in their careers and communities.  Award recipients are alumni from diverse academic disciplines, but who have made a positive difference in the lives of children, youth, families, schools, institutions, and organizations.

The award will be presented in Minneapolis in November.

Congratulations, Mike!

UM Distinguished Alumni Award 8.13.13

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Congratulations to our 2013 Super Lawyers

Every year, Washington lawyers are invited to nominate the top attorneys who they have observed in action. The research staff at Thomson Reuters, a national publisher, also searches for lawyers who have attained certain honors or results.

The candidates are then evaluated based on 12 indicators of peer recognition and professional achievement. Candidates are then grouped according to their primary practice areas, then by categories based on firm size. The attorneys with the highest totals from each category are selected.

In the end, only the top 5% of attorneys nominated are named “Super Lawyers.”

Tacoma Personal Injury Lawyers Named “Super Lawyers”

This year, TCLMDS is proud to announce that three of its attorneys made it on the list: Mike McKasy, John Durkin, and Shelly Speir.

Congratulations!

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Troup, Christnacht, Ladenburg, McKasy, Durkin & Speir Included in Civil Jury Instruction Handbook

TCLMDS has been included in the 2012-2013 Civil Jury Instruction Handbook, a legal publication distibuted to attorneys and law libraries state-wide.  On pages 905-923, our Gorman v. Pierce County case is described and the entire set of jury instructions is provided.

Mike McKasy and Shelly Speir tried Gorman in July 2011, and a jury awarded our client, Sue Gorman, $2.2 million dollars in damages.

TCLMDS is proud to be included in the Handbook.  Our goal is to provide our clients with the best legal representation possible, and we are honored that our work is now being used as an example for others.

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HOT COFFEE!—OUR RIGHT TO TRIAL BY JURY UNDER ATTACK

–Shelly Speir

For those of you who have not seen Susan Saladoff’s award-winning documentary, Hot Coffee, you should!

The film was premiered at the 2011 Sundance Film Festival and won the Best Documentary Grand Jury Prize at SIFF that same year.  The film is now available on HBO and Netflix, and there were two special screenings here in Tacoma on June 12, 2012.

So what is the film about?  Most of us have heard stories about the woman who spilled coffee in her lap and got millions of dollars, right?  Hot Coffee tells the true story of Stella Liebeck, the woman who got burned, and highlights three other cases that show how our right to trial by jury is being attacked by big corporations.

How the Media Can Influence Personal Injury Trials in Tacoma and Afar

The first part of the movie, called “The Public Relations Campaign,” takes an in-depth look at Stella Liebeck’s case against McDonalds.  Through interviews and actual trial exhibits, Saladoff shows how the media did not report facts about the case correctly.

This was due to an intentional effort by McDonalds and other large corporate interests to use “mass misinformation” to sway public opinion against consumers who take their claims to court.

As a result, Liebeck’s case became the poster child for “frivolous” lawsuits, when in fact, her case had merit and the jury found in her favor.

At the Tacoma screening I attended, people who saw the truth about Liebeck’s case were shocked that the truth was never reported.  “Why weren’t we told about this?” one woman asked.

A Concerning Look at Ceilings Put on Medical Coverages

The second part of the movie, “Caps on Damages,” shows how limits on the amount an injured person can receive in compensation hurts the most badly injured victims.  It also forces victims and taxpayers to cover the cost of someone else’s reckless or negligent behavior.

This issue is brought to life through the story of Colin, a boy born with cerebral palsy due to a serious medical error.  Because of the cerebral palsy, Colin suffered serious, debilitating brain damage and will need life-long care.

Colin’s parents sued on Colin’s behalf, and a jury awarded Colin $5.6 million dollars.  However, because of a state-mandated cap on damages, Colin’s award was reduced to $1.25 million, an amount that will not come close to what he needs for his medical care.

Misinformation…The Media & Our Judicial System

The third part of the movie, “Judicial Elections,” shows how big companies spread misinformation about judges and spend money to elect industry-chosen candidates.  Saladoff tells the story of Mississippi Supreme Court Justice Oliver Diaz, who lost his bid for re-election after big business interests found a way to get him criminally prosecuted on false charges.

The last part of the movie, “Mandatory Arbitration,” explains how more Americans than ever are losing their right to trial by jury through mandatory arbitration clauses.  Mandatory arbitration clauses are showing up in fine print everywhere—even cell phone bills.

These clauses force consumers out of court and into arbitration, where the arbitrator is chosen by the same company who the consumer believes has wronged him or her.  Mandatory arbitrations are more secretive, and arbitrators are not even required to follow the law.

In Conclusion, I Suggest Watching the Documentary Movie Hot Coffee!

Hot Coffee shows the story of a young woman who was drugged and raped by fellow employees, but was not allowed to sue her employer because of a mandatory arbitration clause.

After seeing Saladoff’s documentary, many in the audience with me felt outrage and shock.  But how do individuals stand up against big companies?  How can ordinary citizens protect their right to trial by jury?  One suggestion was to ask a lot of questions.

For example, if you see a story in the newspaper that describes an ongoing lawsuit, contact the reporter and ask for more details.

Another suggestion was to insist that the media report stories accurately—if you see a mistake in a news story, contact the reporter and ask for a correction to be printed.

The goal is to stop “mass misinformation” wherever possible.  Once we know the truth, we can protect our rights.

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WHAT IS A STATUTE OF LIMITATIONS, AND WHY SHOULD I CARE?

–Shelly Speir

If you’ve had a personal injury claim, you may have heard the phrase “statute of limitations” used a lot. So what is a statute of limitations, and why should you care?

Every state has laws (or “statutes” in legalese) limiting the time that people have to file certain types of lawsuits. In Washington, RCW 4.16.080(2) limits the time in which a person can file a personal injury lawsuit to no more than three years from the date of the injury-causing event. If someone with a personal injury claim does not file a lawsuit within the three-year time period, the claim is forever barred. Any attempt to file a lawsuit after the three-year period results in automatic dismissal.

So why should you care about the statute of limitations? You may be thinking, “I don’t want to file a lawsuit anyway, so I’ll just continue negotiating with the insurance company after the three-year time limit passes.” What you don’t realize is that your bargaining power comes from the only thing that gets the insurance company’s attention: the financial risk of a favorable jury verdict that exceeds the company’s current offer.

From the insurance company’s point of view, if you can’t do anything to prove the value of your injury claim, the claim has no value. So once you’ve lost your right to file a lawsuit on your claim, you’ve lost all your bargaining power. That is why any offers an insurance company extends after the three-year period passes—if any offers are extended at all—are drastically reduced in value. The insurance company knows that after the three-year period ends, any lawsuit you file will be dismissed. There will be no negative consequence to the insurance company for simply denying your claim if you have waited too long to file a lawsuit.

This is why you must pay attention to the statute of limitations, even if you don’t think you want to file a lawsuit—you need to resolve your personal injury claim during the time in which you have maximum bargaining power. If you have an attorney help you with your personal injury claim, the attorney will make sure that at the very least, a lawsuit is filed before the three years runs out so that your chance to get a fair settlement is preserved.

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If you are a personal injury client of ours or have been in the past, you have likely heard the term “subrogation”. You may have looked it up in the dictionary or on the internet but it seems as if the word doesn’t exist! Your attorney or one of their legal assistants may have attempted to explain it to you, but it was still baffling! After all, why after paying good money towards health insurance and/or PIP medical benefits, would you have to pay the insurance company back for medical expenses it paid to your medical providers? Isn’t that what you pay premiums for? The assistants here at TCLMDS are asked these questions quite frequently and in this article, we will try to answer those questions in simpler terms.

In your policy with your auto and health insurance companies it specifically references the “right to reimbursement” or “subrogation claim.”  Regardless of if it is your own auto insurance paying for the medical bills or your health insurer, if we are successful in settling your claim and that settlement compensates you fully or “makes you whole” for all of your damages caused by the injury event, your insurance company is entitled under your policy or contract with that insurer to be reimbursed up to the exact dollar amount it paid out for medical bills on your behalf.  The reason your insurer has a right to be reimbursed those benefits is that when you have been paid in full satisfaction of your personal injury claim by the person or entity responsible for your injuries or damages, part of your settlement proceeds are compensating you for your “special damages” which in part are your related medical bills.  If you did not pay back your insurer for the medical benefits they paid on your behalf, in essence it would be as if you were “double dipping” or getting paid twice for your medical expenses because you are recovering those medical expenses from your settlement that are to cover those medical benefits your insurance has paid.

On the other hand, if your settlement does not fully compensate you for the entire value of your claim (sometimes meaning in excess of the policy limits), your insurer does not have the right to be reimbursed for the benefits it paid out on your behalf until the time that you do recover fully from a monetary recovery, if ever.

Often at the time of your settlement, our firm is able to negotiate a reduction of the “subrogation” or reimbursement amount to one or all of your medical insurers.  The reason we are successful at reducing what you have to pay back to your auto insurance or health insurance company is that under Washington law an insurer must pay a proportionate share of attorney fees and costs since your attorney in essence recovered the medical expenses for the insurance company through a settlement of the claim.  Your insurance company did not have to extend any effort or resources to get reimbursed.  However, if you have an ERISA health insurance policy, under federal law, most likely you must pay the insurance company back its subrogated interest dollar for dollar.

Hopefully that gives you a clearer picture of what “subrogation” means.  If you need more clarification of what “subrogation” is, we are here to help!

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What does it mean to mediate a personal injury case? Mediation is a less formal process that allows parties to come to a private agreement about how a case should be resolved. Mediation can take place before or after a lawsuit has been filed.

In a personal injury case, mediation usually occurs after the parties have already obtained quite a bit of information about the injured person and his or her claim. Both sides come to the mediation prepared to discuss the strengths and weaknesses of the evidence, as well as the value of the case. Parties usually provide the mediator with packets of information in advance so that he or she has a good understanding of the case.

Mediations are usually held in an office conference room. However, if a lawsuit has already been filed, some courts require the parties to participate in a “settlement conference” with a judge, and those are held in the judge’s chambers. If the mediation is not a settlement conference, the mediator will usually be a local attorney who has several years of experience with personal injury cases, and who the parties believe will be fair.

While procedure can vary with each mediator, the parties are often placed in separate rooms at the beginning of the mediation. The mediator then travels from room to room as he or she discusses the case with each party. Sometimes the mediation will begin with a “joint session,” where all parties are in the same room together, but this is less common.

The mediation typically begins with the mediator speaking with one party to find out that party’s starting position. The mediator may ask questions to allow the party to “vent” his or her concerns and address any emotional issues that might get in the way of a potential settlement. The party can ask the mediator to keep specific information confidential, if necessary.

The mediator then repeats the process with the other side, and formulates a strategy for finding common ground between the parties. The mediator continues moving back and forth between the parties, often playing “devil’s advocate” to encourage the parties to be realistic about the weaknesses of their position. The mediator’s goal is to bring the parties to a point where they can come to a mutually agreeable settlement.

If the parties are able to agree, a written settlement agreement is drafted and all parties and their attorneys sign. This becomes a binding contract, and if one party does not keep its side of the bargain, the other party is often given the right to claim any attorney’s fees and litigation costs that are incurred in making the party stick to the settlement agreement.

If the parties are unable to agree, the case proceeds as if there had been no mediation. The events that occur during mediation cannot be admitted as evidence, and everything the mediator and parties say at mediation is confidential. This is because courts do not want parties to be penalized by the jury for making settlement offers which may or may not include admissions of fault. If mediation fails, the parties are free to mediate again at a later date if they feel that it will be beneficial.

The primary advantage of engaging in mediation is that it gives the parties more control over how the case is resolved. Also, a settlement agreement cannot be appealed. The disadvantage of mediation is that all parties have to give up something to achieve a settlement—a plaintiff who settles may not get as much money as if the case had gone to trial. However, sometimes there are more than monetary considerations which made a settlement attractive, such as the poor health of a party or important witnesses, the stress of going through trial, and litigation costs.

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Judging from what I see on TV, there are probably not many outside the legal system who know for sure.  Some of you may be surprised to hear that we don’t typically get involved in police chases, secret meetings with government agents, or fist fights with other attorneys, but it’s true!

Even when a PI attorney is not down at the courthouse actually putting on a trial, everything he or she does back at the office is still geared toward getting ready for trial.  The vast majority of a PI attorney’s time is spent finding, reviewing, organizing, and memorizing evidence.  This means hours of studying binders full of medical records; interviewing witnesses on the phone or in person; visiting accident scenes; taking pictures and videos; and reviewing expert reports.  Much of this occurs before a lawsuit is even filed.

But just having a lot of good evidence is not enough.  The PI attorney must also have a good case theory.  Depending on the case, developing a good theory could involve hours of legal research and briefing.  Sometimes the lawyer has to advance alternative legal theories which are at odds with each other.  Like gathering evidence, legal research is a task that starts before a lawsuit is filed.

Once a PI attorney feels he or she has enough evidence to support at least one strong case theory, it is usually time to start private negotiations with the insurance company for the person or business that committed the wrong.  A demand letter is written, and all supporting evidence is attached.  This triggers a series of phone calls between the attorney and insurance adjuster.

Even though there is no judge or jury listening on the phone calls, it is the anticipated reaction of a judge or jury to the evidence that determines the value of a personal injury case.  In other words, if the attorney and adjuster both believe that a judge or jury would side with the injured person, the case will settle for a higher value.  The PI attorney’s skills at this stage involve persuading the adjuster to agree with his or her interpretation of the evidence.

If negotiations fail, a PI attorney often must file a lawsuit.  Once suit is filed, there are court-imposed deadlines for exchanging information with the opposing party.  A formal process called “discovery” starts, and the lawyer must prepare to ask and answer questions both in written form (“interrogatories) and orally (“deposition”).  The PI attorney must also begin researching, writing, and arguing motions to get rulings from the court on what law will apply in the case and what evidence will be given to the jury.

When it is closer to the trial date, the PI attorney prepares opening and closing arguments, comes up with a strategy for jury selection, schedules witnesses, prepares documents to be admitted as evidence, and plans what questions to ask each witness.  At this stage, the attorney’s attention is focused just on this trial, and all other cases are put aside unless there is an extreme emergency.

After the trial, when the verdict comes in, the PI attorney resumes work on other cases, and the cycle begin again.  For the most part, a PI attorney’s life is filled with studying, writing, and persuading—and while it is not always as glamorous as what we see on the big screen, it can still have dramatic results.  Just ask our clients!

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Ladenburg McKasy Durkin, Inc. P.S.
6602 19th Street West, Tacoma, WA 98466
253-777-1900

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