Focus groups provided leverage for mediation in auto wreck case

Using input from focus groups they consulted between mediation sessions, Durham attorneys Philip A. Mullins IV and David B. Alexander were able to negotiate $3.2 million in settlements for the victims of a Nash County highway accident.
“I’ve generally found that if you keep the focus groups down to about six or seven people, they really get to talking and voicing their thoughts,” said Mullins, the lead attorney in the case. “You can really learn from that.”
The accident occurred beneath an overpass on U.S. 64 just east of Wake County. A car carrying a group to a wedding crashed into the back of a tractor-trailer that had been stopped for roughly 30 minutes because of a blown tire.
The car’s driver said she could not see well because of a heavy downpour. She said that she thought the tractor-trailer was moving in a normal fashion and that she tracked in behind it before realizing a split-second before impact that it was stopped.
The car was going more than 50 mph when the collision occurred.
A 65-year-old woman sitting in the back-right of the car died in the wreck. Her 43-year-old daughter, who was sitting in the left rear of the car, suffered serious injuries, including multiple fractures of her femur, hip and leg.
While the car’s insurers accepted liability and paid their policy limits ($100,000 per claimant), the insurers for the trucker and the trucking company that employed him denied responsibility, Mullins said.
They refused to discuss a settlement prior to the plaintiffs’ initiation of a lawsuit, and they did not want to pay “nearly what the damages required” for the daughter’s injury after the first mediation session, Mullins said.
The sticking point: Proximate cause. The defense pointed out that the N.C. State Highway Patrol had cited the driver of the passenger car for going too fast under the conditions and that the tractor-trailer had been parked about 5-7 feet to the right of the white line.
After that mediation, Mullins conducted two focus groups, presenting them with what he called a “fair representation” of the case, including the defense’s arguments.
The focus groups, who were selected by a Durham-based company and picked to reflect the likely jury pool for the case, expressed concerns about the location of the tractor-trailer.
But the groups seemed even more troubled by the fact that the N.C. Highway Patrol had documented that the tractor-trailer had at least 10 violations of Federal Motor Carrier Safety Regulations.
Those violations included the trucker’s failure to turn on his four-way “emergency” flashers and his failure to place three warning triangles behind his stopped tractor-trailer.
“When they found out that there were all of these regulations, and that the trucking company was required to make their truckers follow them even defense-oriented jurors don’t like it when people break the rules,” Mullins said.
At the second mediation, the plaintiffs’ attorneys shared the focus group results with the other side, including exit interviews, verdict sheets and responses to jury questionnaires. Those questionnaires asked for the respondent’s views on issues such as tort reform, which helped to establish the groups’ reliability, Mullins said.
“I think the focus groups gave us additional information to present to the other side, which they found compelling, and they really made us confident that we could get a good result at trial,” said Alexander, a solo attorney who associated with Mullins on the case.
“In that way, they allowed us to get the maximum value for our clients at mediation because we really knew how strong our case was.”
The total settlement amount for the 43-year-old woman came out to $2.6 million, which included more than $925,000 in special damages.
The estate of the 65-year-old woman received $600,000, despite the fact that she had Alzheimer’s, Parkinson’s, diabetes and heart disease and had suffered a stroke several years before the crash.
Although her health conditions required her to have a daytime live-in nurse, a family physician had stated that she would have likely lived nearly 17 years longer.
The plaintiff’s counsel also focused on the vibrant, productive life that the woman had led, including raising a family of five children and serving as a source of help, advice and encouragement for those in her community and in her church.
The plaintiffs’ attorneys submitted a settlement video to the defense that featured testimony from the woman’s children, surviving spouse, family, friends, minister and those she had counseled and comforted in the months preceding her death.
At the time of the accident, the woman was being driven to her nephew’s wedding, where she was going to be honored by the bride and groom for her importance in helping them make good decisions in their lives, Mullins said.
“She was someone who gave great advice, gave people a shoulder to cry on and helped to turn lives around,” he said.
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Type of action: Wrongful death — Automobile negligence — Trucking negligence Violations of federal motor carrier safety regulations — 65-year-old woman
Injuries alleged: Broken neck, fatality within minutes of collision
Case name: Confidential
Court: Filed in a county in eastern North Carolina
Case number: Confidential
Verdict or settlement: Settlement (mediation)
Name of mediator: Robert A. Beason
Settlement date: Dismissal filed June 26, 2008
Amount: $600,000 ($100,000 from automobile driver’s insurers; $500,000 from truck driver’s insurers)
Special damages: Funeral/burial expenses ($9,742)
Plaintiff’s experts: Charles A. Cook, M.D., Raleigh Associated Medical Specialists (Raleigh); Reggie Hines, trucking safety regulations and industry standards (Mount Olive); Ed Livesay, accident reconstructionist (Lemon Springs); Janey Barnes, Ph.D., human factors expert (Raleigh); Markay Media and Cynthia Hill, video production, (Durham)
Plaintiff’s attorneys: David B. Alexander of The Law Firm of David B. Alexander (Durham); Philip A. Mullins IV of Thomas, Ferguson & Mullins (Durham)

Type of action: Automobile negligence Trucking negligence Violations of federal motor carrier safety regulations 43-year-old woman
Injuries alleged: Multiple fractures of femur, hip and leg to female plaintiff, age 43, on date of collision, which required multiple surgeries (she had been gainfully employed in an office position at a medical doctor’s office, supporting herself, two adult children and one grandchild)
Case name: Confidential
Court: Filed in a county in eastern North Carolina
Case number: Confidential
Verdict or settlement: Settlement (mediation)
Name of mediator: Robert A. Beason
Settlement date: Dismissal filed Aug. 4, 2008
Amount: $2.6 million ($100,000 from automobile driver’s insurers; $2.5 million from truck driver’s insurers)
Special damages: EMS, surgeon fees and hospital charges ($255,842); net lost income to date ($52,920); future lost income to age 68 ($617,000, not reduced to present value); future medical/surgical expenses (unknown)
Plaintiff’s experts: Timothy Harris, orthopedic surgeon (hip/femur); Wake Orthopedics (Raleigh); Sarah DeWitt, orthopedic surgery (foot/ankle); Orthopaedic Surgery of Foot & Ankle (Raleigh); Reggie Hines, trucking safety regulations and industry standards (Mount Olive); Ed Livesay, accident reconstructionist (Lemon Springs); Janey Barnes, Ph.D., human factors expert (Raleigh); Markay Media and Cynthia Hill, video production (Durham); The Visual Advantage, medical illustrations and courtroom exhibits (Knightdale)
Plaintiff’s attorneys: David B. Alexander of The Law Firm of David B. Alexander (Durham); Philip A. Mullins IV of Thomas, Ferguson & Mullins (Durham)