May 9, 2012
Peck v. Dybo Realty Corp.
This office was assigned to defend a landlord in a matter where a default order had been granted.  Plaintiff’s attorney refused to vacate the default and a motion was made to vacate.  The motion was granted and plaintiff’s attorney appealed the decision.  Discovery proceeded, including the deposition of the plaintiff, a 33-year-old employed woman.  Plaintiff suffered a tri-malleolar ankle fracture that required metal hardware implantation and eventual removal.  She claimed significant disability and reduction of enjoyment of life.  We were able to collect plaintiff’s medical records during discovery.   The medical records, including blood work, revealed plaintiff was extremely intoxicated at the time of her fall on the front steps of the building.  Plaintiff denied drinking alcohol at her deposition and blamed a crack in the steps that caught her heel for her fall.  We deposed the responding ambulance EMTs who supported the medical records in that plaintiff appeared belligerent and highly intoxicated.  It was testified to by the responding EMT that plaintiff twice jumped off the gurney in the emergency room, running around on the injured leg until she was forcibly restrained. 
The Appellate Court reversed the lower court decision to vacate and reinstituted the default judgment.  The client’s insurance company moved forward with a Declaratory Judgment action to confirm there was no insurance coverage for the client.  The matter proceeded to trial on damages only.  Through pre-trial motions in limine, creative arguments and use of experts, this firm’s trial attorney was able to convince the court to allow into evidence the issues of the plaintiff’s intoxication in this damages only trial.  The jury heard testimony from one of the EMTs concerning the plaintiff’s actions and condition. Through the use of the certified hospital records and blood work results the defendant’s medical expert testified that the plaintiff’s level of intoxication would have been so high, it would have acted as an anesthetic.  We were also able to elicit some testimony from plaintiff’s own medical expert that the plaintiff’s actions in placing weight on the fractures would have exacerbated her condition and was further evidence that the alcohol in her system was acting as an anesthetic.  Trial counsel was also able to illicit testimony that plaintiff’s spotty physical therapy attendance hurt her recovery.  
After hearing all the evidence, the jury made an award for past pain and suffering and for future pain and suffering.  The award was approximately 80% below plaintiff's demand.  The jury refused to award any loss of earnings or damages for future medical expenses.  In a conversation after the verdict, the jury indicated that due to the damages only trial and the court's instructions, they felt obligated to make an award, but severely discounted it due to the testimony of the plaintiff's intoxification, her apparent perjury at deposition, and her failure to follow medical advice.  The plaintiff did not appeal the decision.