Virginia Lawyers Weekly VA Lawyers Weekly
On Oct. 8, 2011, German citizen Michael Sprick was struck by a Hostess bread truck while traveling in Pulaski County. The bread truck driver alleged that he had been forced off the road and into Sprick by a phantom vehicle. Sprick was an avid cyclist in Germany, and his trip in the United States was to have taken him from Chicago to Canada and then down to Miami, where he would end his trip and fly back to Germany.
Sprick was severely injured. At one point before the med flight helicopter arrived, he was alleged to have suffered cardiac arrest. He was documented with pulseless electrical activity for several minutes, and documented to have suffered “anoxic brain damage.” Following stabilization at the scene of the accident, Sprick was flown by air transport from the scene to Carilion Roanoke Memorial Hospital. Medical staff at Carilion advised that the condition of Sprick was grave. They recommended that Sprick’s sister discontinue lifesaving care, advising that Sprick’s medical condition was unlikely to improve.
Sprick’s sister had flown in from Germany and needed to consult with an attorney who could speak German. Attorney Michael Kernbach, who is fluent in German, was contacted about the case and agreed to meet with the sister in Roanoke. Kernbach was hired by Sprick’s sister, and immediately began efforts to get Sprick returned to Germany. After multiple phone calls and discussions, Kernbach was able to convince the liability carrier to agree to fly Sprick back home to Germany. At that point, all parties believed that Sprick was returning home to be seen by his family one final time before passing.
In actuality, Sprick’s condition improved when he returned to Germany. He was given months of intensive therapy in the German neuro-rehabilitative unit. He was weaned from the ventilator, but remained unable to speak, feed himself or otherwise communicate. He required a mechanical shunt due to excessive fluid buildup from his brain injury. Unfortunately, problems developed with the mechanical shunt, requiring a second surgery.
Once Sprick had been stabilized, he was eventually transferred to two different long term care facilities, the most recent of which is in his home town of Bad Laer, where his sister and father reside. Sprick remains unable to speak, feed or care for himself, and requires assistance with all activities of daily living. He continues to suffer periodic bouts with infections and require temporary hospitalizations. To this day, he is confined to a wheelchair and/or his bed.
As plaintiff’s counsel was preparing for litigation, in approximately mid-January 2012, Hostess filed for Chapter 11 bankruptcy. Plaintiff’s counsel attempted to have the bankruptcy stay lifted on two separate occasions, without success. These attempts failed as the primary insurance policy had a $1.5 million deductible, which was to be advanced by the insurance carrier and reimbursed by Hostess. Hostess had posted collateral for the insurance deductibles, so the case remained in bankruptcy court in New York. The defendant then went on the offensive and had all personal injury cases consolidated in an Alternate Dispute Resolution process. The net effect of the ADR process was to delay the case proceeding to trial, running up the case costs and providing more time for Mr. Sprick to incur a fatal complication. Further delays to the ADR process and complications arose when on Nov. 16, 2012, Hostess decided to liquidate. When counsel’s case was not selected for the ADR process, counsel submitted a comprehensive demand letter to all carriers and was able to use the carriers’ delays and failure to adequately respond to get the stay lifted.
Due to the severity of Sprick’s injuries, the battle grounds were over his life expectancy and the classification of his level of consciousness. The main issue was the extent of awareness of himself or others, and his ability to feel pain. Further difficulties were encountered in dealing with the German medical staff, as they were not accustomed to classifying patients as minimally conscious vs. vegetative state, etc. From a worldwide perspective, numerous medical articles have been written about the high rate of misdiagnosis in this patient population. The further problem in making the correct diagnosis is inconsistency. What one examiner elicits in one examination, may fail to be duplicated in the same exam just hours or minutes later. This classification was also important in that it also related directly to Sprick’s life expectancy and to what extent he could be expected to recover.
Plaintiff’s counsel immediately began obtaining video footage of the client indicating there was some level of consciousness or awareness. Counsel has also obtained video footage of Sprick’s stay at Carilion in Roanoke, and his transport to Germany, and initial German hospitalization. Piecing these together, they were able to show the dramatic recovery that Sprick obtained while in Germany.
Plaintiff’s counsel took a four separate trips to Germany for this case. Two of these trips included taking plaintiff’s American life care planner. All four trips involved meeting with the Sprick family, his treating primary care doctors, staff and therapists at each of the facilities where he resided, and his initial treating neurologist, Dr. Janssen. Due to the vast difference in legal systems, counsel spent a tremendous amount of time educating the medical providers as to how the system worked, our evidentiary standards and obtaining their cooperation for depositions.
Due to Germany’s national healthcare system, counsel experienced great difficulty in obtaining the “retail” costs of Sprick’s medical care in Germany. Furthermore, due to Germany’s confidentiality laws, counsel experienced even greater difficulty with obtaining the actual medical records. All records and bills were sent in German and had to be translated.
Sprick had never been married and had no children. Due to Sprick’s limited life expectancy, his immobility and his inability to communicate, plaintiff’s counsel faced the inevitable question from defense counsel, of what good would this money do, and in a venue not known for large verdicts. Plaintiff’s counsel conducted focus groups to test the defense theories and these were instrumental in giving counsel the confidence to press on for the end settlement.
Sprick’s current German health insurance will continue to pay his medical bills for the rest of his life. This settlement allows Sprick to obtain additional medical therapies, treatment and aids that are not covered by his health insurance, as well as allowing him the potential to eventually live with his sister, should the decision be made for him to leave the facility.
[15-T-007]
Type of action: Personal injury
Injuries alleged: Traumatic brain injury; axonal shearing injury/cerebral acceleration trauma; post-traumatic left occipital ischemia with hemorrhaging; hydrocephalus malesorptivus; incomplete spastic tetraparesis; fracture of T10 vertebrae; fracture of T11 vertebrae; transverse fractures of L1, L2 and L3 vertebrae; pulmonary contusion; fracture of 9th and 10th ribs; traumatic spleen hematoma and traumatic pneumothorax
Name of case: Williams v. Old HB Inc.
Court: U.S. District Court, Roanoke
Case no.: 7:13-CV 00464
Judges: Hon. Michael F. Urbanski; Hon. Robert Ballou
Mediator: Rodney Maxx
Date resolved: Dec. 22, 2014
Special damages: Past medical bills and lost wages – $1,040,915.72; future medical care -$6,728,729.62 to $9,664,444.93
Verdict or settlement: Settlement
Amount: $21,000,000
Attorneys for plaintiff: Michael Kernbach, Manassas; Paul Thomson III, Roanoke
Attorney for defendants: H. Robert Yates, Charlottesville
Plaintiff’s experts: Susan Wirt, life care planner, Catawba; Larry Lynch, economist, Salem; Dr. Ruth Janssen, Osnabrock, Germany; Dr. Thiem, Bad Laer, Germany; Dr. Kelly Hyde, Abilene, Texas
