A client of ours - John Doe - was employed as a roofer to perform insurance repair work on residential homes. (The name of the client is not disclosed.)

A roofing material supplier delivered and failed to properly secure roofing supplies onto a customer's roof. The roofing materials were approximately thirty three (33) bags of shingles, each of which weighed about eighty pounds.

The supplier's driver and loader attempted to secure the 33 bags of shingles onto the top of a 10-12 pitch roof. The loader did so by nailing two (2) 2"x6" boards onto the roof sheeting but not into the studs-rafters. He then spaced out the bags as they were stacked along the boards.

Unfortunately, he did not nail the 2"x6" boards into the roof securely by driving the nails into the studs or by driving in a sufficient number of nails, properly spaced apart for the size and weight of the roofing material load to hold 33-80 pound bags of shingles.

FACTS

Consequently, the nails gave way, allowing the materials to slide down the roof.

In the process, our client was working below from where the bags were stacked. As they slid down the roof, the 33 bags of singles knocked Mr. Doe to the ground. The materials fell on top of him while he was on the roof and again after he had fallen to the ground seven (7) feet below. He sustained injuries to his neck, low back and knee.

The insurer North Pacific argued that the plaintiff was comparatively at fault because he donned fall protection, which was not required below ten (10) feet, but did not have it adjusted properly.

The defense claimed that had the fall protection been adjusted properly, Mr. Doe would not have struck the ground and that his injuries would have been minor. Further, the defense attorneys argued that because John Doe he did not have his harness adjusted properly because he hit the ground, he was partially to blame.

On behalf of our client, we successfully moved for Summary Judgment. Yet the judge reserved issues of comparative fault for trial. Defendant designated Richard Gleason as its fall protection expert. Plaintiff took the deposition of Mr. Gleason in which he admitted that fall restraint was not required under WISHA as the plaintiff was under ten feet at the point from which he fell. Plaintiff had admitted after the accident to several health care providers that he was working at ten feet or higher, as much as 12 feet. Yet a distinction was made between the locations of his upper body to that of his feet for making a determination as to whether WISHA applied. Through photographs and measurements with the assistance of the employer of John Doe, the parties were able to show that his feet were at about 8 feet at the time of this accident.

Through diligent on site investigation with the assistance of expert plaintiff was able to demonstrate that WISHA and its fall protection requirements did not apply. This effectively took the knees out from under the defense arguments that the harness was not adjusted properly.

OUR CLIENTS FAMILY

John Doe's family was unique, one which a personal injury attorney normally does not expect to play a major part in a case unless, on its face, you have a catastrophic injury. Well in the case of this family, the wife was suffering from seizure disorders and was not able to drive. Unbeknownst to our firm, our John Doe's wife was barely able to function and take care of her family household which included a 14 year old boy and an 8 year old totally disabled, mentally retarded, and quadriplegic son. The client provided all of the physical brawn and strength needed to transport his wife and his disabled son to and from doctor's appointments for their respective medical issues. He also transported his wife to the grocery store and to kids activities.

The state of Washington provided some in home care for the disabled son when our client previously was at work. However, when he was off work, he took care of his son and wife, both physically and emotionally. He was the family rock without which it could not continue to function or survive. The family situation was one which apparently functioning on its face, but barely. After these injuries, which resulted in a partial meniscectomy, a two level cervical fusion and an L5-S1 fusion, the family began to have troubles. Who would take care of the disabled son's transfers to and from the bed, to the bathtub, to the floor, to the changing area and to the car? He was now about 60 pounds of uncontrolled spastic, rigid and unpredictable muscle movement. He has no control over his extremities. Mr. Doe was now was physically unable to perform this function and service as he did previously to his accident.

The effect of the client's injuries, not only to himself, but on his entire family was much greater than known or fully understood.
The life which this family led before this accident, was centered totally around the care, treatment and raising of a totally disabled, incontinent and spastic mentally retarded 8 year old boy.

No one knew or understood the tragedy or difficulties befallen the family until we were forced to proceed to trial.

JOHN DOE'S INJURIES

Regarding damages, John Doe's loss was significant. According to Mr. Stan Owings, our vocational expert, and Mr. Robert Moss, our economist,our client needed to be retrained. He was virtually unemployable as a roofer given his physical limitations following his three surgeries. Our client was off of work for about two years after the accident. Now, because of his physical limitations, it is necessary for him to obtain new skills to re-enter the work force. Given his past wage loss of about $40,000 per year, the future wage loss through two years of retraining, and the future loss of earning capacity after he completes his schooling and takes a lower paying job, totaled up to an amount showing a significant earnings loss.

Additionally, our client has undergone three surgeries. One surgery was to his knee, another surgery was a two level cervical fusion and the third surgery was a L5-S1 fusion surgery on June 1, 2000. This has left him with a permanent partial disability to his neck and back. All injuries have forced him to look for a different career.

THE EMOTIONAL LOSS

The most emotional aspect of the family damages is overwhelmingly tragic. The injuries placed a tremendous burden not only on Mr. Doe but also on his family. Prior to this accident, our client assisted in the care of the family's disabled son, who needs twenty-four hour, round the clock nursing care. The son was intubated, tube fed, and had repeated histories of infections. This required ongoing care and physical assistance, some of which includes the cleaning his track and involves issues of the son's personal hygiene, incontinence, which the client could no longer routinely provide. A short video tape was provided to depict the type of care needed for the client's son which our client could no longer provided due to his injuries from this accident. With the assistance of Jay Syverson, who did a splendid job showing the physical requirements involving the care of his son. Mr. Syverson videoed the physical demands necessary to transfer, lift, and care for his son, all of which was performed by John Doe before this accident. He is now unable to do these tasks.

Plaintiff contended that over $356,000 was now required for respite care for this disabled child since our client could no longer provide the 52 hours of physical care of his son as he did prior to his accident. The defense claimed that our client did not take full advantage of the care available through the state or other federally funded programs. Plaintiffs contended that these were collateral source issues, none of which were admissible at trial. This was a bitterly contested and emotional issue. Defendant contended that if it was cheaper to place son into a foster care home for many disabled children, the plaintiff should do so as it was cheaper, despite the fact he has lived with them his entire life. A classic mitigation of damage issue.
Talk about a sensitive issue! Whew! There was no way a defense lawyer could argue that successfully in front of a jury or judge without major fall out.

Dr. Nora Davis, a developmental pediatric neurologist at Children's Hospital in Seattle, the child's treating doctor, assisted with poignant and disheartening testimony regarding the boy. Dr. Davis testified that she cared for over 800 children who have similar conditions as to the child and that she was familiar with the needs of care and life expectancy issues. A difficult issue was presented by the defense that given his numerous hospitalizations for infections and near death experiences and that given the fact that medical literature showed he had out lived his life expectancy, future costs of care were not an issue.
Dr. Davis testified that this medical literature and the studies were outdated and not reflective of the quality of care the child received at home, the attentiveness and knowledge of his parental care, and was not indicative of the changes in medicine to sustain kids like this young boy in contrast to the medical care available ten years ago as shown in the prior studies. Dr. Davis testified that the child would likely live to age 50 given all of these reasons. However, plaintiff admitted that it was likely Matthew would move out of the family home at adulthood given his likely growth.

Finally, let's not forget about our client's wife. She had a previous seizure disorder and other health complications. According to her neurologist, Dr. Koerner, her seizures increased since our client's accident. He blamed this increase on the stress and physical demands were placed on her to take over some of the duties Mr. Doe used to perform but couldn't now, due to our client's physical injuries in this accident. Dr. Koerner declared that out client's inability to physically care for their son as he did before this accident now placed an inordinate amount of stress on our client's wife. She tried to fill his void caused by his multiple injuries. As a result, the wife suffered from a three fold increase in her seizure activity after the accident and his multiple surgeries.

Ultimately this case settled at mediation one month before trial for $968,000. Mediator Harry Goldman was very instrumental in balancing the sensitivities of this case with hard negotiations. John Doe v. ABR, King County Superior Court, 99-2-03965-3 SEA.

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