Virginia Lawyers Weekly

By October 2003, Lynn Zoll had become something of a spokesperson for brain injury survivors.

She had suffered a brain injury when she fell on a patch of ice in February 1987. Zoll was on her way to a brain injury conference from her Tidewater home when a tractor-trailer rear-ended the Jeep in which she was a passenger on Interstate 295 in Hanover County.

The Jeep rolled three times, and Zoll and the driver had to be cut out of the vehicle and flown to a Richmond hospital. Zoll suffered a broken knee and bruises.

She also sustained another brain injury.

Last week, a Norfolk Circuit Court jury awarded her $10,222,667 in damages and pre-judgment interest based largely on the new brain injury.

Stephen M. Smith, a Hampton attorney who specializes in traumatic brain injury cases, said the previous brain injury plus two other rear-enders within three years before the second crash created challenges in demonstrating the injury and damages related to the one incident.

Smith said he and his co-counsel, Edward E. Scher of Richmond and Carlton F. Bennett of Virginia Beach, attempted to show that Zoll had worked hard to compensate from the first brain injury and had made substantial progress, even though it prevented her from maintaining sustained employment.

They likened Zoll to a champion runner who suffered a serious leg injury and had improved to the point that he could walk, only to have a second injury destroy the improvement he had made.

Zoll, who was 60 at the time of the crash, had a beautiful speaking voice and had obtained a business license two months before the crash so that she could do voiceover work, Smith said.

However, one of the disabilities from the second brain injury was aphasia, which limits the ability to speak and to comprehend speech.

Zoll’s attorneys presented lay witnesses to describe her deterioration after the crash and backed up the descriptions with testimony from physicians who had treated her before and afterward.

The lawyers also presented brain scans that Richmond neuropsychiatrist Gregory O’Shanick and Virginia Beach radiologist Ronald Washburn said demonstrated physical changes in the brain as a result of the 2003 crash. Brain scans that had been taken in 1993 and 2000 were used to illustrate those differences, Bennett said.

Those experts also testified that a person who has suffered one brain injury is more likely to have greater damage from a second injury than someone who has not had such an injury.

Zoll incurred $288,000 in medical bills and life care planner Robert D. Voogt of Virginia Beach projected that it would require almost $4 million to take care of Zoll for the rest of her life.

The defendant in the case, Werner Enterprises Inc., a trucking company based in Omaha, Neb., admitted liability a few days before the two-week trial that ended last Monday.

Defense attorneys argued the evidence showed Zoll already was significantly impaired by the first brain injury and there was no substantial deterioration as a result of the second one.

Judge John C. Morrison presided over the trial and entered judgment on the verdict on Wednesday.

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