COMPASSIONATE APPROACH HELPS COUNSEL OVERCOME CAUSATION HURDLES

Law Reporter, Jun 2004 by Santoro, Elizabeth

Holton v. Viney, La., Ascension Parish 23d Jud. Dist. Ct., No. 68,178, Dec. 2003

Cary Holton knew exactly when his pain had started, hut it seemed impossible to prove. After a November 1999 collision in which a pickup truck rear-ended his vehicle, his cerebral palsy had become symptomatic for the first time since he was a teenager. Gary, 41, brought ATLA members Andre Gauthier and his partner Lee "Jody" Amedce III the most complex causation case of their careers.

Cary had been in seven car accidents before this one and two after. Further complicating the issue, Gary had told the other driver and the investigating ofRcer that he was not in any pain immediately after the collision, and more man five months passed before he saw his doctor about the pain.

Some lawyers might have seen only the headache of a causation issue, but Gauthicr and Amedce saw a young man who had struggled hard to overcome his disease-a struggle that had been successful up until the November 1999 collision. "Hc could pinpoint when the pain started," says Gauthier. "It started after this crash."

He and Amcdee agreed to represent Gary in a lawsuit against the pickup truck driver. Although the crash was at low speed and caused only about $550 worth of damage to Gary's vehicle, his posture, which had been affected by the cerebral palsy, and the fact that he was looking in the rear-view mirror, exacerbated the impact on his neck and back. Gary's injuries from the incident began a process of physical degeneration that required spinal fusion surgery and eventually forced him to leave his job and cut back on his physical activities, and he is in daily pain.

Although he experienced many setbacks, Gary did not let his condition hold him back. "He's not the kind of guy who would want to lay up," says Gauthier, "quite the contrary." Before this crash, Gary was a full-time computer engineer, worked out at the gym, raced go-carts, rode motorcycles, and played racquetball and golf several times a week-daunting accomplishments given that as a child, he could not even walk normally. Before four surgeries on his legs when he was young to relocate and reattach muscles and tendons, he wore leg braces and walked awkwardly, his knees almost touching although he walked on the outside edges of his feet. "When you start thinking like that little boy . . . you know he felt so bad about himself" says Gauthier. "It makes you want tu weep/'

It was this compassion for their client that helped Gauthier and Amcdee explain why Gary waited so long to see the doctor. Gauthier asked the jurors to picture themselves at the playground of their youth and to picture Cary as a small child being teased by other children because of his disability. That helped the jury understand why a person who had battled cerebral palsy throughout childhood and finaHy enjoyed a remission of his symptoms might be reluctant to sec the doctor: he did not want to admit to himself that his symptoms might recur and send him into decline once again.

"I think the same thing happened to the jury as happened to me," Gauthier says. "When I became him, when I turned out the lights in the room and walked around like him, I knew then why he didn't go to the doctor. he didn't want to go back to the playground."

Another hurdle for the lawyers was establishing that this collision, not one of the prior or subsequent ones, caused Gary's cerebral palsy to reappear. Gauthicr and Amcdcc called four lay witnesses: Gary's father, personal trainer, and two coworkers. AU four af&rmed mat it was this crash that began Gary's decline. Gary's father recalled his son's condition worsening after that incident. His trainer testified that he had to decrease the intensity of Gary's workouts. His coworkers remembered that his condition began to worsen before Gary purchased a new pickup truck in January 2000, supporting Gary's assertion that he was in pain after the November 1999 crash, but before any subsequent collision.

In addition to these lay witnesses, plaintiff's orthopedist, psychiatrist, and pain management specialist further testified about Gary's condition before and after the crash. Bit by bit, Gauthicr and Amcdee were able to clarify the causation issue for the jury.

But the lawyers also had to discredit the contrary testimony of defendant's expert witnesses. For example, they felt that the testimony of Alfred Bowles-a physician and mechanical engineer who testified at his deposition that the collision speed was too low to have caused Gary's in juries-would sound credible to the jury.

However, Gauthier noticed mat out of 116 cases in which Bowles had testified, he was on the defense side in all but two. Plaintiff nled a motion in limine to exclude Bowles's testimony on the basis that he lacked objectivity, and the defense ultimately decided not to use Bowles's testimony at trial.

Gauthier also revealed the lack of objectivity of the defense's orthopedic expert, Dr. Randall Lea. Dr. Lea testified before the jury that they should suspect Holton's motives because he was seeking money, stating that whenever litigation is coupled with the issue of monetary gain, one must be suspicious. Gauthier produced a flip chart during cross-examination which showed the jury that Lea had earned $332,800 per year testifying on behalf of insurance corporations, to enable the jury to consider whether he could really be considered "independent." Further, although Lea had testified that he had charged $2,000 to investigate Gary's case because of the complexity of the in juries, he had charged the same amount, Gauthier and Amedee discovered, for testifying in simple whiplash cases. Although Lea testified that the monetary gain from his testimony does not influence him, Gauthier says, "I think the jury saw through him."