The Show Must Go On

The Show Must Go On

The Show Must Go On Overcoming a Surprise Witness’s Testimony

Smith Freed & Eberhard Associate, Tasha Cosimo recently prevailed in a convoluted ORS 20.080 arbitration. When a surprise witness was allowed to testify at the arbitration, Tasha had to recreate the wheel of her defense strategy.

The Background

In 2012, the plaintiffs (husband and wife), were traveling in heavy, stop-and-go traffic on the Oregon Coast Highway when they were tapped by the car behind them. At the scene, the following driver alleged that a third vehicle, traveling behind him, rear-ended him forcing him into the plaintiffs’ vehicle. The third driver denied that he caused the chain-reaction collision and denied pushing the vehicle in front of him into the plaintiffs. In fact, the third driver believed that the second driver slammed on his brakes, without warning, due to hitting the plaintiffs’ vehicle and causing him to rear-end the second driver. Plaintiffs’ ultimately filed suit against only the third driver. Tasha Cosimo was hired to represent the third driver who claimed from the start of the case that the second driver was actually at fault because he repeatedly accelerated and slammed on his brakes, which caused him to rear-end them and potentially struck the plaintiffs’ vehicle first. After receiving around $4,500 in PIP benefits to cover their exclusive chiropractic costs, the plaintiffs sued Tasha’s client for $10,000 each for non-economic damages, totaling to $20,000, and attorney fees under Oregon’s low dollar statute, ORS 20.080.

Prior to filing suit, plaintiffs, through their attorney, filed a written demand pursuant to ORS 20.080, demanding $10,000, each, in non-economic damages. In response to plaintiff’s demand, the insurance carrier offered one plaintiff $1,800 in non-economic damages plus PIP and one plaintiff $1,900 in non-economic damages plus PIP. Plaintiffs’ declined the offer and filed suit.

The Strategy

The initial arbitration strategy in this case was to defend the case on liability and argue that Tasha’s client (the defendant) was not liable for the subject accident or any alleged injuries or damages arising out of that accident. The initial strategy also did not include any expert witnesses due to the liability defense. Less than two weeks prior to the arbitration, plaintiff’s counsel decided to track down the driver of the second car to get their testimony at arbitration. With the help of a non-licensed private investigator, plaintiff’s counsel was finally able to locate the driver and obtained an informal recorded statement. Ten days prior to arbitration, plaintiff’s counsel attempted to admit the recorded statement into evidence for the arbitration. Seven days prior to the arbitration, plaintiff’s counsel attempted to admit the non-licensed private investigator as a witness, both lay and expert, to testify as to the conversation with the second driver and as an “expert in investigations.” Tasha argued that the testimony was inadmissible, hearsay, and violated the timelines for disclosure set forth in the UTCR causing great prejudice to the defendant. Despite her arguments, the arbitrator determined that if the second driver appeared at the arbitration, he would be allowed to testify so long as Tasha had an opportunity cross examine him. The morning of the arbitration, the second driver showed up and testified that the defendant did hit him, pushed him into the plaintiffs’ vehicle, and ultimately caused the accident. With the surprise witness demolishing Tasha’s initial theme, she had to quickly develop a new plan of action.

The Outcome

Tasha’s new strategy was to show that even though her client may have caused the accident, this was a low impact accident, there was no proof that the plaintiffs were injured as a result of the subject accident, and that plaintiffs had already been more than fully compensated for their alleged damages. Since all of plaintiffs medical bills were paid by PIP and their property damage was paid for, there was no evidence to support that plaintiffs were entitled to additional damages. Without the benefit of medical causation expert, Tasha argued that plaintiffs alleged injuries were never proven at arbitration, and therefore it could not be determined if they were reasonable or necessary, and that plaintiffs “limitations” after the subject accident were minimal to nonexistent. Ultimately, the arbitrator found the defendant “more likely than not” liable for the accident; however, he awarded each plaintiff $1,700 in non-economic damages instead of their requested $10,000. This award beat Tasha’s written pre-filing offer by a few hundred dollars, saving Tasha’s client nearly $20,000 in damages and over $20,000 in attorney’s fees.
Tip for Claims Professionals:

When responding to an ORS 20.080 demand, be sure to clearly state separately the amount of non-economic damages and the amount of economic damages you are offering. For example, do not simply offer $8,000 inclusive, or $8,000 for all damages, or $8,000 for non-economic damages and PIP. If you separate out the pre-filing offer into non-economic and economic (or PIP) damages, the applicable pre-filing offer will clearly define the amount to beat for the purposes of determining if attorney’s fees should be awarded: