The plaintiff’s “home field” advantage of making the final closing argument allowed an attorney in one recent DeKalb County State Court case to powerfully turn an ill-chosen phrase in the defense’s closing statement into a self-fulfilling prophecy and secure a large verdict for his client under a difficult set of circumstances. Jewel Wicker v. American Family Insurance et al. (13A47336).
The case arose out of a serious Fulton County traffic accident on July 12, 2012. Jewel Wicker, a Georgia State University student, was on her way to church that Sunday morning when a First Class Produce box truck ran a red light and nearly crushed her car. Wicker was taken by ambulance to Grady Hospital in Atlanta, where she was treated for several days. However, after her release from Grady, she began to suffer headaches, anxiety attacks, memory loss, light sensitivity, tinnitus, and other difficulties.
Wicker brought suit against First Class Produce, the truck driver, and the company’s insurer. At trial, the defense admitted liability for the accident, and the only issue for the jury’s determination was the amount of damages suffered.
At the trial, two of Wicker’s treating physicians, Dr. Anthony Stringer and Dr. David Burke, testified that they diagnosed her as having suffered a mild traumatic brain injury as a result of the accident and that the injury was permanent. They also described how the injury caused the various symptoms from which Wicker continued to suffer. In addition, they described the various medications they prescribed and other treatments they provided, including periodic Botox injections for pain.
Wicker also testified regarding her condition. She stated that she had daily headaches, with more severe headaches a few times a week. She also reported that she was frequently completely exhausted in the evenings as a result of the various medications she was taking.
Despite the medical testimony, establishing the proper amount of damages in the case presented difficulties for Wicker’s attorney Alwyn Fredericks, some actually resulting from the recovery Wicker made after the injury. She was able to resume her studies and graduate from Georgia State. She also participated in extracurricular activities, including working on the student newspaper. Later, she began work as a reporter in Pennsylvania, where she resided at the time of the trial. She also acknowledged during her testimony that her headaches, although continuing daily, were not always as severe as immediately after the accident.
The defense presented no witnesses at the trial. Instead, defense attorney Mitchel Evans in his closing statement tried to point out inconsistencies in Wicker’s testimony to question her credibility regarding the reported severity of her current condition. Evans contended that the diagnoses given by the treating doctors were based on Wicker’s subjective reports of her symptoms. He then also noted that various CT scans performed on Wicker were normal and did not show any bleeding on the brain.
Evans stated that Wicker was entitled to what he referred to as “fair compensation” for her injuries. By contrast, he used the phrases “multimillion dollars” and “multimillionaire” in connection with what he felt Wicker would request. Evans stated that he believed should award Wicker the medical expenses of approximately $60,000 she had incurred. However, in regard to Wicker’s pain and suffering, Evans said, “They see the pain and suffering claim being worth multimillion dollars. I respectfully say to you that the evidence does not support that. I think a verdict of anything remotely like that is fundamentally unfair to the defendants in the case.” He then suggested that a pain and suffering award between $200-$300,000 would be supported by the evidence and fair to all parties. He concluded “And now I get to sit down and hear just how many millions of dollars Mr. Fredericks thinks the evidence supports.”
Evans’ words would soon be used against him by Fredericks. However, first, the plaintiff’s attorney tried to refute Evans’ various points by noting that Wicker’s treating physicians said that the type of neuropsychological testing they performed, relying on Wicker’s reported symptoms, was standard with the type of brain injury Wicker suffered. He also noted that the defense never introduced any contrary medical opinions regarding Wicker’s diagnosis.
Then, Fredericks turned his attention to Evans’ suggestion about the appropriate size of the verdict. He said that Evans’ comments about making Wicker a multi-millionaire “floored me” and that he was “shocked,” Fredericks continued, “This isn’t about making Ms. Wicker a multi-millionaire. This is about compensation. This is about the difference between who she is and who she should be before they ran her over on that Sunday morning as she’s sitting there waiting to go to church.”
Fredericks went on to call Evans’ suggestion of a $200-300,000 award for pain and suffering “a slap in the face.” Wicker’s attorney then used another word frequently employed by Evans, as Fredericks continued, “This case is about fairness. It’s about what’s right. It’s about taking something priceless from somebody and rendering them less than what they are and what they should be.”
The jury apparently responded to Fredericks’ impassioned statement on behalf of his client. Although they did not award Wicker the entire $10 million requested by Fredericks, they did award her $3.5 million in damages, substantially above the defense’s suggestion.
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