This case made a big difference for a family that needed it.
When his family contacted us, the lives of David Turnbull* and his parents had been changed forever by a motorcycle accident. David’s motorcycle had been struck in the rear by another driver and as a result of the collision, David could no longer walk, speak, or care for himself. In therapy sessions he struggled to move even a finger or a toe. He would never walk, talk, or write again. He was twenty-five.
That turns lives upside down. David had been a fun-loving, hard-working young man; a youth pastor in his church; and a leader in his community. His life was reduced to a fraction of what it had been. His parents’ lives were forever changed too. Keeping David alive required not only extensive medical treatment but also around-the-clock care. Once David left the hospital, there was nobody to give that care except Mr. and Mrs. Turnbull. So they did. They fed him through a tube, washed him with sponges, drove him to therapy appointments, brushed his teeth, combed his hair, and changed his diapers. They learned to transfer him from his bed to his wheelchair and back again. Most of the time they couldn’t leave the house together. The hardest part was worrying about what would happen to David once they were gone.
Mr. Turnbull once told us, “People ask us how we do all this. I ask them, how could we not?”
The financial strain was immense. Insurance didn’t cover everything. The Turnbulls dug into their savings. They spent hours and hours on the phone with medical providers and medical insurers, trying to get David the care they needed. They provided lots of David’s care themselves. They bought a used minivan that had been modified to accept a wheelchair but struggled to keep the older van running. They couldn’t afford all of the medical care and treatment alternatives that might help their son, some of which wasn’t covered by insurance.
One of our lawyers, Matt Kahn, had previously helped a friend of the Turnbulls after her car accident, so the family reached out to us. We met Mr. and Mrs. Turnbull in the lobby of a hospital and talked over the legal side of things. The family decided to hire us, and we went to work.
How the Motorcycle Accident Happened
On the night of the motorcycle accident, David was on a date with his girlfriend. He was driving and Katie McDowell was riding behind him. They slowed and stopped at a red light in the Atlanta, Georgia area. As they waited at the light, the motorcycle stalled – the engine quit. As David worked to restart the motorcycle, a minivan was approaching the intersection behind him.
We’ll never know exactly why the driver of the minivan hit David’s motorcycle. She told officers on the scene of the collision that she never saw it, and she testified in deposition that she never saw the motorcycle until she had already hit it. But the Event Data Recorder on her minivan – sometimes called an EDR or “black box” – showed hard, emergency-type braking about a second and a half before the collision. For whatever reason, as our Complaint stated, the driver of the minivan didn’t stop in time. The impact threw David and Katie from the motorcycle onto the pavement.
Katie sustained some injuries when she hit the ground. They were painful but she made a full recovery. David was thrown to the right side of the motorcycle, into an adjacent traffic lane. Before he could get out of the roadway a dark SUV driving straight through the intersection ran over him. Witnesses would later say that the dark SUV slowed down after running over David, then stopped, its brake lights glowing red in the dark. Then the dark SUV drove off, never to be seen again. David lay in the road. He wasn’t moving. In the words of the police officer who investigated the collision, “[t]his second collision caused serious injuries to [Mr. Turnbull].”
Fault for the Motorcycle Accident
The only way for our firm to help the Turnbulls was to collect from the insurance company that insured the minivan. The dark SUV was gone, so there was no chance of collecting from that driver or insurer. The Turnbulls’ own insurance wasn’t nearly enough to cover the many millions of dollars in medical costs that they would face. That meant that we would have to prove that the driver of the minivan was at fault.
There were some big challenges.
First, in order to prove that the driver of the minivan should not have hit the motorcycle, we would first have to prove that she should have seen it in time to stop. That was hard because it was dark at the time of the collision and the taillight on the motorcycle had been modified. On a normal motorcycle of this make and model, as shown on the left side of the picture below, there is a large taillight mounted on fairly high on the rear fender. On David’s motorcycle, shown on the right side of the picture below, that taillight had been removed and replaced with an aftermarket taillight that sat low on the left side of the rear wheel. As it turned out, that aftermarket taillight wasn’t street legal. Georgia law required that motorcycle taillights be at least twenty inches above the ground, and this one was slightly too low. In other words, because the taillight didn’t comply with Georgia law, the driver of the minivan (and the lawyers representing her) could argue that because the taillight was improper, the driver of the minivan couldn’t see the motorcycle in time to stop.
Second, the officer who investigated the collision didn’t issue a ticket to the driver of the minivan. In fact, he didn’t issue a citation to anyone. In his report, the investigating officer wrote that “[t]he investigation does not show that probable cause exists to cite [the driver of the minivan] with the violation of following too closely, due to the inconspicuous nature of the motorcycle.”
Third, the lawyers representing the driver of the minivan (i.e., the defense lawyers) could ask the jury to blame the driver of the dark SUV. After all, the investigating officer had determined that David’s “serious injuries” had been caused by the second collision, when the dark SUV ran over him. A jury would probably be inclined to blame the driver of the dark SUV anyway, because that driver didn’t even stop at the scene of the collision, but instead committed a hit-and-run. If the defense lawyers were successful at blaming everything on the driver of the dark SUV, then the Turnbulls could end up with nothing to help care for David.
Fourth, the defense lawyers were ready to blame David for the collision. They hired expert witnesses to help with that. One of the defense experts was ready to testify that as soon as the motorcycle stalled, David should have moved out of the roadway, instead of staying in the roadway to try to get his motorcycle restarted. If David and Katie had moved over to the median, the defense lawyers argued, the collision never would have occurred. And why did the motorcycle stall out in the first place? Didn’t that show that David hadn’t maintained the motorcycle correctly? In other words, the defense was ready to argue that David’s own negligence was the main cause of the collision.
If we were going to help the Turnbulls, we had obstacles to overcome.
Proving Fault for the Collision – Expert Witnesses
If we were going to hold the insurance company that insured the minivan liable, we would need expert witnesses of our own. We would need engineers and traffic experts who could survey the scene, assess the vehicles, and perform the calculations to show what happened, when, and where. We would also need experts to forecast David’s future medical needs and explain how much it was going to cost to meet those needs.
First we needed an accident reconstructionist. An accident reconstructionist can go to the scene of a collision, measure skid marks, evaluate debris patterns, interpret ‘black box’ data, assess paint transfers and crush damage, and then – if everything goes right – tell you how a collision happened. But in this case, we had a hard time finding a reconstructionist to help. Accident reconstruction experts make hundreds of dollars per hour, but even so, the first several reconstructionists that we approached said they couldn’t help us. The case was just too challenging. Some of them told us we couldn’t win. We didn’t give up. We called reconstructionists that we had worked with before, asked colleagues for their recommendations, and kept calling. Finally – on our fifth try – we found an expert accident reconstructionist who could help David.
Second, we needed an expert in conspicuity and human factors. This expert could evaluate what the driver of the minivan could have seen, and when, if she had been paying reasonably close attention. Then the expert could evaluate a reasonable delay for reaction time – what experts call “perception-reaction time” – and offer a professional opinion about whether the driver of the minivan should have been able to stop before hitting the motorcycle. Again, it was tough going. The conspicuity experts that we’d worked with before said they couldn’t help us. The case was too hard, they said. We kept going. On our fourth try, we found an expert in conspicuity and human factors who would take on David’s case.
Third, we needed a life care planner. A life care planner is a medical expert who evaluates an injured person’s medical needs and forecasts the medical care and treatment that the injured person will need for the rest of their life. For David, that was a lot. He would need skilled nursing care, medical equipment, modifications to his home, medications, therapy, etc. The list went on and on. Here, though, it wasn’t so hard to find help, and we were able to work with the life care planner whom we often retain to help our clients.
Fourth, we needed an economist. Because courts speak the language of money, we needed an expert who could translate the life care plan into money. In other words, we needed an economist to say how much it would cost to put the life care plan in place. The economist would predict what will happen to the cost of skilled nursing care in the decades to come, and then use interest rates and return rates to reduce that cost to present value. We found an economist who could help with the financial numbers. The cost of David’s future medical care ran into the tens of millions of dollars. “We couldn’t have gotten the family this result without assembling a team of highly-qualified professionals and that took a lot of work,” said Kahn.
Proving Fault for the Collision – Nuts and Bolts
We conducted nighttime visibility studies, where experts evaluated what the driver of the minivan should have seen at various distances and how she should have reacted. For the first such study, we acquired a 2005 Toyota minivan just like the one that had struck David, a motorcycle of the same make and model, and a modified taillight just like he’d had. One of our lawyers traveled to the scene of the study. We thought the pictures taken during the nighttime visibility study showed that the driver of the minivan should have stopped, but the expert didn’t see it that way. He said he could not help us.
We tried again, this time at the scene of the actual collision. We had another minivan, another motorcycle, another of our lawyers attending, but a different team of expert witnesses. The local police shut down the road for us so we could do the testing. This time, the results were helpful for the Turnbull family – based on calculations performed at the actual scene of the collision, our experts said that the driver of the minivan should have been able to stop before striking the motorcycle.
A fifth expert witness who specialized in photography had another idea – what about the headlight lenses on the minivan? This was a 2005 minivan, and it looked like it may have been parked outside for most of its life because photographs taken by police immediately after the collision showed that the headlight lenses were hazy and cloudy. Georgia law requires that headlights be maintained in “proper working condition.” O.C.G.A. § 40-8-22(d). If the driver of the minivan had maintained the headlight lenses in better condition, either by replacing them or cleaning them, would she have been able to see the motorcycle sooner?
Damaged headlight lens on the 2005 minivan.
We put the theory to the test with another nighttime visibility study. This time, from inside the 2005 Toyota minivan that we had acquired for testing, our experts evaluated how well the driver could see with hazy, cloudy headlight lenses like the actual minivan had, and compared that to how well the driver could see with clear, proper headlight lenses. The difference was enough – our conspicuity and human factors expert was able to conclude that properly-maintained headlight covers would have helped the driver of the minivan stop before she hit David’s motorcycle. That was very good news for the Turnbull family.
Settlement of the Motorcycle Accident Case
We had everything we needed to take the case to trial – evidence, law, witnesses, and wonderful clients. But there was risk. We knew the jury might blame David for not moving his stalled motorcycle to the median, or blame it all on the hit-and-run driver who ran over him, or believe the defense experts who said the driver of the minivan didn’t have time to avoid the collision. If any of those things happened, we could lose. The Turnbull family would get nothing, David wouldn’t receive the therapy he needed, and Mr. and Mrs. Turnbull would have to spend the rest of their lives caring for David and worrying about what would happen after they were gone. So we were ready for trial, but we had to consider what might happen if things didn’t go our way.
We talked with the Turnbulls and decided it was time to make an offer. We had disclosed our experts, produced our evidence, made our arguments, and won the motion to enforce. We had to be concerned about the risk of losing at trial, but the insurance company knew we were ready and they had to be concerned that we could go to trial and win big. We talked with the Turnbull family and evaluated the cost of David’s future medical needs. We sent the insurer a time-limited offer to settle the case for $45 million.
A few days before the deadline, the insurance company accepted. The case was settled for $45 million – enough money to care for David for the rest of his life.
“It was a privilege to represent such a deserving family,” said Tom Giannotti. “This compensation will truly make a difference in the lives of our client and his family.”
“My heart goes out to this family for everything they have endured and continue to endure,” added Melody Anderson. “Life will never be the same for them, but I am pleased that the settlement has provided a means for them to get the equipment and treatment that is needed for the best care possible.”
There is no amount of money in the world that could make up for what happened to David. Of course. If the Turnbulls, the witnesses, the driver of the minivan, or any of the lawyers could snap our fingers and go back to that dark night and prevent this collision from happening, we would do it. But tragedy can’t be undone.
All that can be done now is to pick up the pieces as best we can. The money helps. With the funds from this settlement in a Trust that will take care of David for the rest of his life, the Turnbull family’s lives are improved, at least somewhat. David can afford any kind of therapy known to medicine that might help. His family can afford to hired skilled nursing care so that they can leave the house sometimes. They can buy a wheelchair transportation van that doesn’t break down all the time, modify their house to accommodate a wheelchair, and pay off the medical bills that had mounted so high. They can take David on trips to the beach and the mountains, where he can roll into the salty waves on a specialized wheelchair or feel the mountain breeze on his cheek. David will be cared for after his parents are gone. David will never be like he was before the collision, but he may improve, and the members of his family can get their lives back.
Law isn’t an easy profession. If we hadn’t finally found an accident reconstructionist who would take David’s case, the settlement never would have occurred. If the Court had ruled against us on the Motion to Enforce, the settlement never would have occurred. If the case had gone to trial, would the jury have decided that the driver of the minivan was at fault? Or would they have blamed David, or pinned it all on the hit and run driver? We will never know.
There is a lot of uncertainty in our world. But at the end of the day, this was a good result. “The settlement of this case did a lot of good for a really good family,” said Jeb Butler, “and that is why we get up and go to work in the morning.”
David before the collision.
*For the privacy of those involved, we have changed this name and others mentioned in this article.