Virginia Lawyers Weekly VA Lawyers Weekly
Type of action: Motor vehicle crash
Injuries alleged: Aggravation of pre-existing cervical and thoracic degenerative disc disease
Name of case: Keane v. Ibarra and JS Int’l Inc.
Court: Circuit Court of Jefferson County, West Virginia
Case no.: 19-C-39
Tried before: Jury
Name of judge or mediator: Hon. David Hammer
Date resolved: 08/04/2020
Special damages: Past and future loss of earning capacity: $579,000. Plaintiff did not claim past and future medical bills
Verdict or settlement: Verdict
Amount: $3,500,000
Attorney(s) for plaintiff (and city): Peter Pentony, Leesburg
Attorney(s) for defendant (and city): Jennifer Lynch, Charleston, West Virginia; Tracey Eberling, Martinsburg, West Virginia.
Plaintiff’s experts: Rae Davis, MD, pain management; Mark Shasti, MD, spinal surgery; Robert Jackson, LMFT, vocational rehabilitation; David Epperly, CPA, loss of earnings
Defendant’s experts: Roger Griffith, CPA, lost wages; Robert Cirincione, MD, orthopedist
Insurance carrier: Liberty Mutual and CNA
Description of Case: Plaintiff is a commercial airline pilot and physically active husband and father. On March 16, 2017, he was stopped at a red light while driving home from bowling with friends when the defendant rear-ended him at high speed. Defendant was driving a truck owned by his employer. The force of the impact caused the truck to roll after it slammed into the rear of plaintiff’s car. Law enforcement observed empty beer bottles in the truck and charged the defendant with drunken driving.
An investigation by plaintiff’s counsel revealed that this was the second time that the defendant had faced DUI charges while driving his employer’s trucks, and he had just ended probation for the prior offense. Discovery showed that defendant’s supervisors knew about the prior DUI and that the employer’s insurer had directed that drivers with DUI charges be excluded as company drivers for a three-year period. The crash that injured plaintiff was within three years from defendant’s prior DUI arrest. Plaintiff asserted claims against the defendant for DUI causing bodily injury and against defendant’s employer for negligent entrustment and respondeat superior liability.
Plaintiff had substantial cervical and thoracic disc degeneration at the time of the crash, but his pre-existing condition had not previously affected his activities. Over the course of his career, plaintiff had been an officer in the Marine Corps, where he was a naval aviator piloting fighter jets; had been a lead instructor at the Federal Air Marshal Academy after 9/11; and helped develop the Federal Flight Deck Officer Training Program. These jobs all required a high level of physical fitness. Plaintiff had also coached Little League baseball, participated in many hiking and camping trips with his children’s scout troops, and enjoyed physical labor on his small farm in western Loudoun County.
Unfortunately, the March 2016 crash dramatically worsened the pain caused by plaintiff’s pre-existing degenerative disc disease, requiring him to drastically limit his physical activities. He had to hire contractors to perform home maintenance and farm work that he had previously handled himself. He was not able to engage in athletic and camping activities with his kids. As a pilot, he had to limit his work schedule to shorter flights in smaller aircraft, reducing his earning capacity. Although his spinal doctor recommended a three-level cervical discectomy and fusion, plaintiff was not inclined to undergo surgery because the fusion would require him to obtain a post-surgical Federal Aviation Administration waiver in order to continue flying as a commercial pilot, and no doctor could guarantee before surgery that he would be able to obtain that waiver after the surgery. In other words, plaintiff had to choose whether to continue flying through pain on a limited basis in order to be able to provide for his family, or whether to undergo surgery to hopefully reduce the pain but risk his livelihood in the process. At the time of trial, plaintiff had ruled out surgery.
The trial was conducted in August 2020, with COVID precautions including a masked jury and socially distanced voir dire conducted on the basketball court of a community center near the courthouse. Defendants challenged liability and the extent of plaintiff’s injuries. Due to the pending DUI charges, the defendant driver asserted the protection of the Fifth Amendment when asked about the events of the night of the crash. The employer claimed that the defendant employee’s prior DUI did not appear on the employee’s driving record, and that he was not driving the truck in the course of his employment. Plaintiff’s evidence was heavily focused on testimony comparing plaintiff’s physical activities and capabilities before and after the crash. Plaintiff did not submit evidence of his past or future medical bills, but did provide a quantification of his expected wages for the rest of his career, in addition to a calculation of his limited earnings based on piloting shorter trips. Plaintiff’s counsel argued to the jury that the plaintiff’s expected wages for the rest of his career should form the basis of the jury’s verdict for noneconomic damages because the possible loss of those wages was the source of the worry and emotional upset that the crash caused to plaintiff. The jury returned a verdict against the defendant and the employer in the amount of $3,500,000.
[021-T-017]
