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High/low agreement used to settle claim of back pain – $79,700 Verdict

Virginia Lawyers Weekly//November 8, 2010

High/low agreement used to settle claim of back pain – $79,700 Verdict

Virginia Lawyers Weekly//November 8, 2010

The plaintiff, a 42-year-old mechanic with a long history of back pain, was involved in a Dec. 28, 2006, motor vehicle collision on Route 208 in Spotsylvania County. The defendant failed to yield the right of way when she made a left turn in front of the vehicle. Damage to both vehicles was relatively minor and the defendant’s vehicle was drivable from the scene. Liability was admitted.

As a result of the collision, the plaintiff sustained a thoracic sprain superimposed upon pre-existing degenerative changes. He did not complain of any injury at the scene, but he presented to an urgent care facility the next day with thoracic pain.

Thereafter, the plaintiff underwent a protracted course of treatment from multiple providers, including a family physician, rounds of physical therapy, an orthopedic physician and his physician’s assistant, a self-referral to a chiropractor for eight months of continuous treatment and pain management for injections. The case was difficult due to limited objective findings, the pre-existing condition and large treatment gaps.

The plaintiff discontinued treatment after a heart attack in early 2010. At trial, the plaintiff’s evidence established that his injuries had basically revolved except for occasional flare-ups that did not warrant a return to treatment. The plaintiff’s medical expenses, the majority of which were contested, totaled $25,720. The plaintiff’s wage loss was difficult to prove since he was paid straight commission.

The defense hired Michael O’Brien MD to perform a defense medical examination. O’Brien confirmed the soft tissue injury and the initial treatment. However, O’Brien testified that all treatment after six to eight weeks was not related to the collision given the plaintiff’s history of pre-existing back pain.

The plaintiff did have a history of back pain dating back to the mid 1980s and a prior diagnosis of a compression fracture in his thoracic spine. However, the plaintiff’s lay damages witnesses at trial, his wife and co-worker, testified that just prior to the collision he was working full time without complaint or limitation.

The parties entered into a high/low agreement of $35,000/$100,000 (policy limits). The jury deliberated for approximately 45 minutes before returning a verdict of $79,700.


Type of action: Negligence – motor vehicle collision
Injuries alleged: Thoracic sprain; aggravation of pre-existing degenerative changes
Name of case: Robert Cook v. Leesetta Brock
Court: Spotsylvania County Circuit Court
Tried before: Jury
Name of judge: William H. Ledbetter Jr.
Special damages: Medical bills – $25,720
Verdict or Settlement: Verdict
Amount: $79,700
Date: Aug. 13, 2010
Highest offer: $35,000
Demand: $67,500
Plaintiff’s expert: Robert G. Squillante MD
Defense expert: Michael O’Brien MD
Insurance carrier: State Farm
Plaintiff’s attorney: David M. Williams Jr., Fredericksburg

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