$7M Settlement Aided By ‘Day In The Life’ Video
Plaintiff Badly Injured When Tire Exploded
Published: 1:00 am Mon, August 11, 1997 1:00 am Mon, August 11, 1997By Eric T. Berkman Massachusetts Lawyers Weekly A 34-year-old man who was seriously injured when a tire exploded in a salvage yard recently settled his suit against the tire manufacturer for $7 million — with the help of a “day in the life” video.According to plaintiff’s counsel Michael P. Ascher of Springfield, the use of a video depicting the plaintiff’s everyday life after the accident demonstrated the true extent of his suffering to the defendant’s insurance company.“It’s one thing to explain to an insurer what this man had to go through and it’s another thing to show them,” said Ascher. “We said, ‘Let’s show him getting up and going through a daily routine, sort of chronologically, and took it one step at a time and it worked out very well.’”Practitioners agree that “day in the life videos” are useful settlement tools in cases involving serious injuries, but emphasized that:
- video depictions should be honest and appear unscripted;
- the injuries should justify the use of a video; and
- lawyers should prepare separate videos for settlement negotiations and for trial.
On Aug. 9, 1994, plaintiff Brian C. Hicks was shopping at an auto salvage yard in Cheshire when an employee of defendant Tire Centers, Inc. of Akron, Ohio began to unload truck tires which the defendant had mounted on rims owned by the salvage yard.When the first tire hit the ground, it exploded with such force that a component of its ring assembly flew out, striking the plaintiff in the forehead.The plaintiff — who suffered severe brain injuries and a shattered skull — was in a coma for months afterward, and underwent “numerous” surgical interventions, according to Ascher.“Ultimately they took ribs from his chest cavity and used them to repair his skull,” Ascher said.The plaintiff brought an action in Hampden County Superior Court alleging that the defendant had negligently mounted the tire on a defective rim.During settlement negotiations, the plaintiff’s scientific expert concluded that — based on extensive tests — the rim had indeed been negligently installed in a deteriorated condition.According to Ascher, both the expert’s opinion and the impact of the plaintiff’s “day in the life” video moved the parties quickly toward settlement.A week after pre-trial mediation, Liberty Mutual Insurance Company — which was defending the case — accepted liability, Ascher said.The parties subsequently agreed to a settlement of approximately $7 million structured over the plaintiff’s lifetime, carrying a present value of $3.9 million.The case appears in the Trial Reports section of this issue.
Painting A Picture
Pain and suffering was a very significant component of the plaintiff’s case, said Ascher.“This man and his wife, from an emotional perspective, suffered greatly not only from the initial injury, but from the numerous surgeries he had to endure — as well as from the therapies he underwent,” said Ascher. “Those are painful as you learn to redo things you’ve always taken for granted.”In order to give the insurance company which defended the case a vivid picture of just how much the plaintiff had suffered, Ascher elected to make a video.“I’d used one before — probably about 10 years ago,” Ascher recalled. “I had learned somewhere that it was an effective tool and decided to try it in that case.”In this case, said Ascher, the video depicted the condition of the plaintiff — who had previously operated an auto repair shop in Pittsfield — two years after the accident.“We started with him getting up in the morning and the difficulty he had with simple tasks like getting dressed, having breakfast and showering — and needing assistance to shower so he doesn’t fall,” Ascher said. “Then we moved on to things like occupational therapy. At home he’d practice things like reading or mathematics. What this showed is here’s a college graduate who’s now having to relearn basic elementary-type exercises.”The end result, said Ascher, was a video that was “instrumental” in introducing the plaintiff to the insurers.“They often do not get to see the plaintiff before deposition or trial,” he said.Boston litigator Douglas K. Sheff agreed that videos are helpful tools for settling catastrophic personal injury cases.“They force an insurance company or large corporate entity to personalize what they do not like to personalize,” he said. “[A video] puts a face on something they’d rather view as a number. It makes them put themselves in the juror’s box and consider things that insurance companies hate to consider — the intangible damages.”James D. Barretto, who has used videos in both catastrophic-injury cases and wrongful death cases, said that video “is the only medium I’ve found that can bring to life someone’s anguish, pain and suffering in a meaningful way.”
Natural And Unscripted
Ascher maintained that his client’s video was particularly effective in that it appeared natural and unscripted.“Sometimes you create these videos and they’re not that good,” he said. “Sometimes they’re perfect. But they should not be created according to a script. I didn’t go up there and give these people lines — sometimes you’re running the videotape and things just occur which turn out to be perfect.”Barretto agreed.“The way I keep it real is not to prepare in a question-and-answer format as I might for trial,” he said. “I simply prepare the participants by informing them of general areas into which I’ll inquire.”A successful taping session will elicit an emotion that is “palpable,” Barretto added. “If you’ve adequately tapped the emotion that is there at some level, you come out of there exhausted.”Ascher pointed out that a video is largely useless if not warranted by the injuries themselves.“If the client has made a full recovery, there’s no point in using it,” he said.That’s because the use of videos in less-serious cases may give the appearance of overreaching, said Sheff.“There had better be something on it that makes people think to themselves, ‘That’s a horrible way to have to live,’” he asserted. “The test should be whether it’s uncomfortable or shocking to see.”Michael K. Gillis of Newton Centre, who has tried a number of tire rim cases, said that a video’s value can also be analyzed from an economic standpoint.“‘Day in the life’ videos are pretty common in catastrophic cases,” he said. “But the settlement value may not warrant the added expenditure in other cases.”
Getting It In
When making “day in the life” videos, practitioners suggest doing so with an eye toward admissibility at trial.“‘Day in the life’ films have been approved by the appellate courts at both the state and federal level,” said Barretto. “But that does not mean the rules of evidence don’t apply.”Barretto said he deals with evidentiary issues by preparing two separate versions of the video.“We make one for the principal players in settlement negotiations to show what we intend to bring to the attention of the jury at some point,” he said. “I don’t have to worry about inadmissibility here because I’m just trying to convey anguish to giant insurance companies whose staff sees these cases on paper every day.”In the second version — which is designed to be introduced as evidence at trial — “I have to be very circumspect because it is for the court,” Barretto said.An additional option, said Sheff, is to show the video to the other side ahead of time.“You ask them to review it and make objections, and see if they can be worked out,” Sheff pointed out. “For those that cannot, you ask the judge to review the tape and make rulings ahead of time. That way you’re not eliminating beforehand any of the strong stuff that might still be admissible.”Ascher, however, said he believed that his client’s video would have been admissible all along.“I think it accurately depicted his condition at that point in time — a point at which doctors said his condition was as improved as it’s ever going to be,” he stated.