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Been in trial so I haven’t blogged for awhile.

But the case was quite interesting, involving wheelchair transportation safey issues.

My client, Russell Worth is an 83 year old T-12 paraplegic, having suffered injuries 16 years ago in a motor vehicle accident. But despite his age and physical disability, was very active as a participant in the National Disabled Veterans Winter Sports Clinic in Snowmass, Colorado and the National Veterans Wheel Chair Games, held every summer, a board member of the Wisconsin Paralyzed Veterans of America, and as a volunteer at the Veterans Administration Hospital in Milwaukee, Wisconsin.

In March, 2004, Russ was a wheelchair passenger riding aboard a transit van operated by a common carrier under a contract with the Veterans Administration. When the transit van driver braked for normal traffic, Russ flew out of his chair to the floor of the van, fracturing his leg. The reason why he came out of the wheelchair was disputed. We alleged that the transit van driver had failed to apply the wheelchair occupant restraint system properly–adjusting the female end of the lap belt in such a way that the end release latch was pressed against the edge of the wheelchair armrest, so when the brakes were applied and inertia took Russ forward, the end release was forced against the armrest, it depressed and released, and Russ came forward unrestrained out of the wheelchair.

The defendant transit company alleged several alternative explanations: that Russ had intentionally released the lap belt after it had been properly applied; that Russ had inadvertently pushed in the end release latch; or that Russ had “submarined” under the lap belt, not because of negligence but because of the difficulty of routing the lapbelt through wheelchairs in a manner that keeps the belt in a good position low over the occupant’s pelvis.

In addition, defendant alleged that the occupant restraint system, which was manufactured by Sure-Lok, Inc. , was defective and unreasonably dangerous if it inadvertently released as plaintiff alleged. Defendants used Professor Douglas Hobson[], from the University of Pittsburgh, and we used Dr. Lawrence Schneider [], from the University of Michigan transportation research center [].

Ironically, the two sides experts are colleagues who work together on the Rehabilitation Engineering Research Center on Wheelchair Transportation Safety.

Defendant also blamed the phantom driver who had cut off the van and caused the driver to apply her brakes.

The trial court refused to submit the phantom driver’s negligence to the jury, finding no cause as a matter of law. The court also refused to submit the plaintiff’s alleged contributory negligence to the jury, finding no evidence to support the allegation that plaintiff disengaged his own belt. The jury found the defendant transit company negligent and rejected defendant’s contention that the occupant restraint system was defective or unreasonably dangerous.

Damages were also disputed. In his 13 years as a paraplegic before this incident, Russ had never required assistance to transfer out of bed and into his wheelchair. After this accident, however, he had to wear a heavy cast for a period, it caused ulcers in his leg, and he then had to remain on bedrest for an extended period to heal the ulcers. He became deconditioned while in bed, and has required a home health aid ever since to assist him with transfers at home. Russ has always been proud of his independence, despite his paraplegia, so this was a big setback for him. The Milwaukee Circuit Court jury awarded $195,000 for pain, suffering and disability, and $154,000 in medical expenses.

The main legal issue that arose at trial had to do with attrition of jurors after the trial began. Thirteen jurors were originally empanelled. On the second day of trial, a juror called in by cell phone to report that she could not find a parking place, apparently due to a large motivational speaker conference held near the courthouse, featuring Zig Ziglar, Bill Cosby, Suze Orman, Colin Powell, Ed McMahon, Chicago Bears head coach Lovie Smith and Green Bay Packers head coach Mike McCarthy. After waiting 45 minutes, the trial court excused her. The next day, a second juror became unavailable due to a death in the family. The defendant was unwilling to stipulate to proceed with the remaining 11 jurors, and moved for a mistrial. When the action was filed, the plaintiff had demanded 12 jurors but did not pay the fee at that time. The defendant filed an answer requesting only six jurors, and paid that amount. The plaintiff had later paid for the other six jurors. Because the defendant had not requested or paid for 12 jurors, the court denied the motion for mistrial. Finding the Wisconsin statutes unclear, and no applicable case authority, the trial judge relied upon the words of Mick Jagger: “You can’t always get what you want. But you get what you requested.” The court accordingly sent only six jurors to deliberate.

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