Source: Lawyers USA, August 15, 2011
Posted on: http://fpn.advisen.com
A pair of South Carolina attorneys recently won millions in a personal injury case after rejecting a low ball settlement offer and overcoming a lack of medical evidence to prove the cause of their client’s life-altering disability.
William S. Tetterton and co-counsel Vincent A. Sheheen represented a father of two who began having debilitating muscle spasms after inhaling a toxic chemical that was sprayed into the small cab of a crane he was operating.
The crane operator, Terry Geddings, and his wife, Candace, sued contractor D&L Inc., alleging that two of its employees had acted recklessly when they sprayed six to a dozen bottles of a product called Blast-A-Coil into the crane’s air conditioning unit while Geddings was still inside.
The Achilles’ heel of their case was the fact that no medical or scientific study had ever established a connection between the inhalation of trichloroethylene, or TCE – the chemical used in Blast- A-Coil – and permanent nerve or muscle damage in humans.
The defendant zeroed in on the lack of medical evidence, stating in a pretrial memo that the Geddings were “alleging a first in medicine and toxicological science.” They noted that TCE had been used as a general anesthetic for surgical procedures for at least thirty years.
“Importantly, despite its widespread use in industry for almost a century, there has never been a single documented case where a person sustained permanent musculoskeletal injury or damage as a result of an inhalation exposure to TCE,” the defendants wrote.
Defense attorney John H. Tiller referred requests for comment to co-counsel Joseph D. Thompson III, who did not respond to several interview queries. Both practice at Haynsworth Sinkler Boyd in Charleston, S.C.
The defendant initially offered to settle the case for $10,000, but the Geddingses turned them down. Terry Geddings, who is in his early 30s and cannot work again because of his incurable musculoskeletal condition, lost more than $2 million in lifetime income.
Tetterton and Sheheen were not intimidated by the lack of medical evidence, which, to them, only proved that more studies needed to be done to determine the health effects of breathing TCE.
“The defense’s argument was that there are no studies showing a link,” Sheheen said. “Well, my argument was that there are no studies about this. We just don’t know. But I think a reasonable doctor could look at the studies that show that TCE damages other organs and then draw a conclusion about this case based on that information.”
As the case headed toward trial, the defense assembled a lineup of doctors and scientists, including the head of University of Georgia’s toxicology department, to testify about the lack of a link between TCE and Terry Geddings’ condition.
The defense also attempted to exclude the testimony of the plaintiffs’ star witness – the doctor who treated Geddings and determined that his muscle and nerve damage was caused by chemical poisoning.
Case at stake
Dr. John Nicholson, a physical medicine and rehabilitation specialist, was the only doctor to independently diagnose Geddings’ muscle spasms and other musculoskeletal problems as being tied to TCE inhalation.
The defense argued that Dr. Nicholson should be barred from testifying because he had never studied TCE and had never treated any other patients who had inhaled the chemical. They argued that he “did not possess the knowledge, skill, experience, training or education to offer a causation opinion in this case.”
If Nicholson could not testify, then the meat of the Geddings’ damages claims would also have to be rejected, the defendants asserted.
“In the end, the most the plaintiffs should be able to claim is a temporary, transient exposure to TCE with no associated medical care and expenses outside of the ER visit on the date of the exposure,” they wrote in a pretrial brief.
Before Nicholson met with Terry Geddings, a doctor at Duke University Medical Center in Durham, N.C., evaluated him and determined that his conditions were unrelated to the chemical exposure, according to the defense.
Sheheen argued that the Duke doctor’s testimony carried less weight than Nicholson’s because the latter had actually treated Geddings. Also, a South Carolina court had never, to Sheheen’s knowledge, excluded the testimony of a treating physician.
“It would be saying that the physician was committing malpractice by law,” he said. “If a physician has been treating a patient for a condition for three years, as was the case here, I don’t think the court or lawyers should be able to say that that treatment should not come into evidence. The court would be overstepping its bounds.”
Nicholson’s testimony was ultimately allowed and the case went to trial before Judge Kristi L. Harrington.
During the five-day trial, a jury of nine women and three men heard from several physicians who relied on Nicholson’s original diagnosis to continue treatment for Geddings. The defense called the UGA toxicologist to undercut Geddings’ claims by focusing on the lack of medical evidence linking his condition to TCE exposure.
Sheheen tried to weaken the toxicologist’s testimony by emphasizing the $400-an-hour paycheck he was getting from the defense, which added up as he sat in court all week observing the trial.
“One of the jurors audibly gasped when the toxicologist testified as to what he was being paid,” Sheheen said. “I think the fact that he had been there all week, it made him look biased. He wouldn’t agree with any questions that didn’t favor his side.”
Sheheen also had employees at the steel mill where Geddings was working testify that the two contractor employees were not following protocol when they sprayed the Blast-A-Coil into the crane’s air unit.
Finally, he called Candace Geddings to the stand. She painted a picture of her husband’s life after the poisoning, telling jurors that he felt like “less of a man” because he was no longer the family breadwinner and was so wracked with pain and muscle spasms that he couldn’t even teach his kids to swing a baseball bat.
“She was very compelling and very believable,” Sheheen said. “She teared up some, but she wasn’t terribly emotional. We thought she just tied all the pieces together about what they had been through during the last several years.”
Halfway through the trial, Sheheen and Tetterton approached the defense with an offer to settle the case for $2 million. The defendant refused.
During closing arguments, Sheheen said he saw several jurors crying and realized that they had won the case. While the jury was out, he and Tetterton reached a high-low agreement with the defense.
Under the agreement, the Geddingses would receive at least $500,000 if the jury sided with the defendant. But if the jury sided with the Geddingses, they could receive no more than $3 million.
Minutes after both sides shook hands on the deal, the jury came back with a $4 million verdict for Terry Geddings. They awarded Candace Geddings $700,000 for loss of consortium – the largest award of its kind in recent state history, according to Sheheen.
Even though it was $1.7 million less than the jury verdict, the Geddingses are pleased with the last-minute settlement agreement because it prevents the defendant from dragging them through a lengthy appeals process.
They just wanted to move on,” said Sheheen.
Plaintiffs’ attorneys: William S. Tetterton of the Tetterton Law Firm in Camden, S.C.; Vincent A. Sheheen of Savage, Royall & Sheheen Firm in Camden, S.C.
Defense attorneys: John H. Tiller and Joseph D. Thompson III of Haynsworth Sinkler Boyd in Charleston, S.C.
The case: Geddings v. D& L, Inc; June 17, 2011; Berkeley County Court of Common Pleas; Judge Judge Kristi L. Harrington