The Case

The stipulated facts and issues

“On November 21, 2003, at approximately 12:20 p.m., Patrick Campbell was driving westbound in his blue 1987 Toyota pick-up truck in Provo Canyon on State Road 189/US 189. At the same time, Walter Kunz was driving eastbound in the same Provo Canyon in a 2002 Ford Explorer. It was snowing. Near milepost 12, Walter Kunz lost control of his vehicle while rounding a curve in the road. Walter Kunz crossed over the road’s median and directly into the oncoming lane of traffic in which Patrick Campbell was driving. With no time to react, the two cars collided head on. Walter Kunz vehicle spun to a stop on the far side of the road. Having been stopped in its tracks by the collision, Patrick Campbell’s vehicle was hit a second time from behind by another pick-up truck.

“Patrick Campbell and Walter Kunz have agreed that Walter Kunz is 100% negligent and liable for the accident. That means that the accident was the fault of Walter Kunz and no other. Patrick Campbell bears no responsibility for the accident whatsoever.”

The Presentation of Evidence

The entire trial was on the “serious injuries and permanent consequences” that Patrick suffered physically, mentally, socially, and to his personality. Here is a brief overview (or as brief as I can make it while still giving you a clear idea of all the major issues presented).

Physical Injuries

Patrick’s face hit the steering wheel in the accident. (At this point, it was unclear whether he was wearing a seatbelt or not: the car had been so compressed that his face might have hit the steering wheel even with a seatbelt.) His whole face had comminuted fractures, which means the fractures weren’t just a simple line, they were like spiders, with lots of cracks and even free-floating pieces of bone. Specifically, his lower jaw was crushed on both sides, his upper jaw was crushed on both sides, his zygomatic process (the cheekbone by the temple) was fractured on both sides, his nose was crushed, and he had fractures under both eye orbitals. I’ve diagramed my understanding of his fractures (in red) along with the six plates the maxiofacial surgeon put in during the surgery a few days after the accident (in blue). There was no surgical treatment needed for the fractures under the eye and on the zygomatic processes, but all other facial fractures were surgically treated.

On the skin of his face Patrick had a deep laceration stretching from the left corner of his mouth for about an inch. He also had a deep laceration just under his chin. Both of these have left scars (even after additional plastic surgery) that were apparent at the trial. He also lost his front left tooth on top.

Patrick’s brain, because of the impact, had sheer hemorrhages and punctate hemorrhaging in both frontal lobes and both temporal lobes. Patrick was examined by CAT scan over the course of a few days after the accident, and the brain surgeon concluded no brain surgery was needed, and there was no major hemorrhaging. When Patrick entered the ER, he was given a Glasgow Como scale of 15, which is very positive. According to the surgeon’s records, this sort of hemorrhaging can require therapy, but the brain will heal and the individual should be back to normal within a year.

There was a fracture on cervical vertebrae 7 on the transverse process. This is treated with the patient wearing a collar for a number of days, which Patrick was prescribed.

The inside of Patrick’s right ankle was crushed with the diagnosis of medial malleolus fracture. There were 3 large and 2-6 smaller fractured pieces. On a 1-10 severity scale (10 being greatest), this fracture was an 8. The surgery for the ankle was mandatory and required 2 wires to create a mesh to hold bone pieces together, screws, and sutures in the bone (which are very rarely needed). Despite the severity of the fracture, there was a “reasonable hope” that Patrick could run after 4 months, although chances were over 50% that he would probably have continuing ankle pain on and off for his whole life.

Patrick also complained of unidentified pains in his mid-spine and left shoulder about two months after the accident. These cleared up by themselves, according to doctor’s report. Also, although doctors did not mention this, I assume he was cut by broken glass on his left arm because one of the family members talked about bloody arm bandages in the hospital.

Mental Injuries

Although Patrick did have the Glasgow Como scale of 15 in the ER, which means he was mobile and conscious, he did suffer some mental impairment from the accident. He participated in at least some outpatient therapy for his cognitive damage. A neuropsychologist did extensive testing on him just two months after the accident and then again a year later to check the progress. Here are the comparisons between the tests:

Improvements

• Verbal fluency to well-above average


• Verbal intelligence went from average to above average


• Non-verbal reasoning


• IQ went from 102 to 116


• Concentration


• Memory


• Fine-motor skills
  
  

Deficits

• Cognitive efficiency in 7th %


• Academic skills lower than before
  
• Short-term memory


• Concentration problems


• DEPRESSION (The neuropsychologist made a big deal about this last one and put it in capital letters on his list.)
  

Here is where we begin to enter gray areas. First I’ll define cognitive efficiency from the “Deficits” column. Cognitive efficiency is being able to use, organize, and retrieve the knowledge and intelligence in your brain. So it’s not what you know but how you act with what you know. Patrick is in the 7th percentile for his age group. The neuropsychologist believed Patrick was permanently damaged in cognitive efficiency, but also believes that if Patrick were treated for his depression, he would significantly improve his cognitive efficiency.

In the neuropsychologist initial testing two months after the accident, Patrick had mild depression. In the second test a year later, Patrick had severe depression. In a third assessment done more recently (maybe this year? I missed that detail), Patrick still had severe depression, but with an even lower score in the severe range. This is the most crucial thing needing attention according to the neuropsychologist.

Response to Treatment

There are some interesting twists in this case when it comes to how Patrick responded to the treatment he was given. After the surgery on Patrick’s face fractures, the maxiofacial surgeon recommended band therapy, which is a common therapy in jaw surgeries. Basically band therapy requires the patient to wear rubber bands that hold the jawbones in place for a few weeks. During this healing time the patient is not allowed to eat food that requires chewing, for obvious healing reasons. After the surgery, when explained about the band therapy, Patrick flat-out refused to comply. He was told that if he didn’t comply with band therapy, he could have a severe malocclusion. Patrick didn’t seem to care. A week later at a follow-up visit, the doctor noticed a mild malocclusion and again urged Patrick to wear the bands. Again, Patrick said he would be noncompliant. He was warned again about a severe malocclusion, and again didn’t seem to care. A third follow-up visit showed a significant malocclusion and Patrick was then told he would probably need additional surgery to fix it. Patrick was unconcerned and continued to be noncompliant with band therapy.

So, Patrick ended up going to a different maxiofacial surgeon 2-3 months later for another jaw surgery. The two doctors never had contact and didn’t share records. The first doctor didn’t even know Patrick had gone to the second doctor. The second doctor didn’t know the severity of the accident Patrick had been in. So, to fix the malocclusion, the second surgeon had to re-brake Patrick’s jaw, take out the old metal plates and put in new metal plates. The new surgeon put Patrick on band therapy, and this time Patrick was compliant.

It was suggested that Patrick’s brain damage caused him to be noncompliant. When Patrick testified about it, he said he didn’t understand what was being asked of him for the band treatment. When the first maxiofacial surgeon testified, he said he had no suspicion at all that Patrick didn’t understand what was being asked. Also, traumatic jaw surgeries and brain damage often go together and the surgeon has worked with brain-damaged patients before. The surgeon said Patrick didn’t seem delirious or confused at all. He was fully engaged in the situation and said he would be noncompliant.

Both maxiofacial surgeons said it’s inconclusive if Patrick had complied with the first bands that he would or would not have needed the second surgery.

To treat his depression he was recommended anti-depressants. He fervently refused to take anti-depressants. Instead he only wanted homeopathic remedies. To the knowledge of all the witnesses, the only effort Patrick ever made to treat his depression was get St. John’s Wart from the grocery store. In the three years since he was diagnosed with severe depression he has done no research into any other homeopathic treatment for depression. His closest brother didn’t believe Patrick was even depressed when asked about it because he didn’t act depressed.
The neuropsychologist can’t say one way or another if the cause of his depression is organic due to brain damage in the left frontal lobe.

Patrick’s Vocational History

Patrick grew up with an abusive mother and an absent father, so he moved out at age 16. He was also 14th of 15 children. After he moved out, he lived a few months here and there with siblings and friends, working the whole time until he graduated high school. He had received a full scholarship to UVSC for his running. He attended UVSC for two semesters when he injured his knee, and dropped out in the spring of 2000. The accident was fall of 2003 and Patrick had worked odd seasonal and temporary jobs within these three and a half years. He mostly had jobs related to construction, but also cashier positions at Sundance, and taking care of horses. There are no records kept from this time and Patrick never reported income or paid taxes. He was still moving from place to place living with various family and friends. His most prominent employer according to Patrick was a Mr. Davis, an independently wealthy family friend who would give Patrick various projects related to construction or animal care.

At the time of the accident Patrick was beginning cashier work at Sundance in one of their food stands for the ski season. The accident kept him from work for three months, but he was able to finish the season as a cashier. For the summer season of 2004, Patrick worked as an “usher” at the Sundance amphitheater. To the defense lawyer Patrick explained that he stood for most of the time and just pointed patrons to their seat. He said he didn’t even have to walk up or down stairs. He just stood and sat for 4-5 hour shifts. Of course, this would be a safe job for someone who had recently suffered a crushed ankle.

Unfortunately, Patrick wasn’t being entirely truthful. The defense lawyer did some digging and found an accident report in the Sundance records from July 3, 2004. Patrick had fallen off the stage after trying to move a 100 lb speaker and had sprained his right ankle (the same ankle crushed in the accident) and injured his coccyx. He was taken to the hospital in an ambulance. The accident report included a job description of Patrick at the time filled out by his supervisor. It included frequently crawling, squatting, climbing, and carrying 50-100 lbs. Anyway, this caused additional pain in his injured ankle that he complained about and attributed to the accident. He didn’t tell anyone about the sprain until the defense lawyer found the records himself.

Patrick continued doing the same sort of temporary seasonal work he did before the accident, including working at Sundance, now as a manager of the food stand, and also working for Mr. Davis. He reported having a regular income of $20,000/year to his lawyers, but the only W-2s found totaled between $4,000-$7,000/year. His work for Mr. Davis was paid for in cash, apparently. He was still jumping around from residence to residence, occasionally paying rent to his friends and family.

The Vocational Expert

There was a witness who was a “Vocational Specialist” who was very fishy, but the Plaintiff lawyers relied on her heavily. I didn’t trust her because she was clearly being paid by the Plaintiff and scoffed at the Defense questions accordingly. Anyway, she came up with a report that was based almost entirely on the neuropsychologist’s assessments. She said that Patrick had a 50% work disability and because of the accident his work life would be cut short by five years.

Then an Economic Expert witness came in with another report, based entirely on the Vocational Specialist’s report, with two scenarios. The first was that Patrick would’ve gotten an Associate’s Degree if he had not been in the accident and would’ve earned $32,000/yr on average in today’s dollars. Cut that in half because he has 50% disability and multiply it by the number of years he has left in the work field, and the total economic loss is $879,990. Scenario 2 was that Patrick wouldn’t have gotten a degree and, save for the accident, would have gotten an average of $20,000/year. But with 50% disability, cut that in half and multiply it by years left in the work field and the economic loss is $448,237.

What’s fishy about these calculations was that Patrick claimed, and didn’t change his claims, that he had already been receiving $20,000 per year for the past couple years. So why should we believe that because of his 50% disability he’s only capable of receiving $10,000 a year without a degree? Well, I’m straying from the facts and now moving into opinion. Let me finish the facts.

Closing Statements

Finally, during the closing statements we were given some useful evidence that Patrick was not wearing his seatbelt. “The Utah Highway Patrol investigation officer… reported… that at the time of the accident in question Patrick Campbell was not wearing a seat belt or shoulder harness even though one was available for use.” (There had been mention of ER reports that Patrick was an “unrestrained male” before this, but the Plaintiff lawyers didn’t seem to think that was significant. Well, they also didn’t seem to think the Highway Patrol officer’s report was significant either, saying that he arrived 10 minutes after the accident, and someone could’ve unbuckled the seatbelt by then… but come on. Really?)

The long and short of it is that the Plaintiff was arguing for 2.4 million dollars. The Defense said that if the seatbelt had been on, the only damage would’ve been Patrick’s ankle, so that’s all they were willing to pay for, and a little for pain and suffering. They offered $50,000.

Then we were off as a jury for deliberations. One of our most confusing instructions as a jury was this: “The law of the State of Utah provides that the failure to wear a safety belt does not constitute negligence on the part of a person seeking recovery for injuries.” So why was this point so heavily debated? We learned later that the judge was just as surprised as we were confused. Because of this law, normally in car crash cases, you never hear a word about the seatbelt. It was rare that both sides decided to bring it up and argue their case around it, considering that the jury, by law, could not consider lack of seatbelt as negligence. Unfortunately for the Plaintiff, half of the jury had lived in other states where it was a law to wear a seat belt, and had a hard time removing the seatbelt facts out of the deliberations.

The final total settlement was for $358,500 to the plaintiff. I wonder how much higher it would’ve been if we hadn’t heard a word about seatbelts, because I’m sure it would’ve been higher.