Marcello & Kivisto, LLC partner, Doug Marcello achieved a defense verdict after a two-week trial in Watertown, N.Y. that concluded with the Plaintiff’s counsel asking the jury to award $5.9 million dollars for his clients claims of permanent physical and mental disability. The jury found that the Plaintiff did not suffer a serious injury as a result of the accident and entered a defense verdict.
Plaintiff, a commercial driver, claimed that he was side-swiped by the Defendant driver and injured as a result. He claimed that while he continued to work for seven months, he did so despite his physical and mental injuries.
He ultimately stopped working, claiming that he was unable to continue working due to his conditions. He claimed permanent disability due to conditions including reflex sympathetic dystrophy (RSD), complex regional pain syndrome, post-traumatic stress disorder (PTSD), anxiety and depression.
Plaintiff presented numerous medical witnesses in support of these claims, including two primary care physicians, an orthopedic surgeon, two pain doctors, a pain treatment nurse, a psychiatrist, a social worker, as well as the report of a psychologist who performed an independent examination for his workers’ compensation carrier. He also argued that his having been awarded workers’ compensation and social security disability for these conditions supported his claim.
Plaintiff sought damages for claims of permanent injury for the balance of his life from the date he stopped working at age 33. This included lost wages of $1.2 million, medical bills of almost $100,000, future medical bills of $1.2 million, as well as pain, suffering, and loss of life’s enjoyment.
Defendants’ position was that Plaintiff did not suffer any psychological injury and that his physical condition was a product of symptom magnification. In support of these positions, we presented the testimony of a psychiatrist and an orthopedic surgeon who performed independent examinations of the Plaintiff.
We argued that these were the only two medical providers who testified in the case that reviewed the entirety of his medical and psychological records. We noted that the numerous medical providers presented by Plaintiff lacked the entirety of the records and were limited in their ability to compare the Plaintiff’s complaints from provider-to-provider.
Defendants also presented the testimony of two nurse practitioners, each of whom performed a DOT examination of the Plaintiff between the date of the accident and the date he stopped working due to his alleged disability. The nurse practitioners both testified that they did receive a history of his injury and the accident but found no sign of the claimed shoulder injury upon their respective physical examinations.
We also provided testimony from his employer at the time of the accident as well as the safety director of the company for whom he subsequently worked at the time he left employment. Both testified as to the lack of complaints, limitations, or reduction in driving during the period between the accident and Plaintiff’s leaving employment.
Defendants also successfully subpoenaed Plaintiff’s Myspace file. By working in conjunction with a California attorney, Myspace produced the entirety of his file, including photographs that raised question as to the extent, if not existence, of the alleged disability.
Attorney Marcello’s two and one half hour closing, at the conclusion of the trial, methodically presented the evidence from the two week trial in a manner that persuasively refuted Plaintiff’s claims and exposed the flaws in Plaintiff’s case. The defense’s ability to clearly and logically present its case both during trial and during its closing argument is evidenced by the jury’s verdict in favor of Defendant.