Our Results
$5.5 Million Jury Verdict is
Largest in Skagit County History
On April 28, 2009, a Skagit County jury awarded 5.5 million dollars to the victim of a drunk driver against the drunk driver, the Washington State Patrol, and a local probation department.
Hailey French was injured in a head-on collision with a drunk driver who had been released from a prior drunk driving arrest by a state trooper one hour and 39 minutes previously. Instead of booking the drunk driver into jail or impounding her car, the trooper drove her home, gave her back her keys, and admonished her not to drive again "until she sobered up." Instead the drunk driver called a taxi, returned to her car, got back on the road, and crossed the center line hitting Hailey French head-on.
The claim against the Whatcom County District Court Probation Department arose from the fact that the drunk driver had been under a court order to drive only a car equipped with an alcohol interlock device, but the probation department had failed to follow-up on the judge's court-ordered requirement.
Since the drunk driver herself had only $25,000 in policy limits, Plaintiff's counsel, Dean Brett of Brett and Coats, was forced to find other sources of liability coverage through the State Patrol and the Whatcom County District Court Probation Department.
State Patrol's Duty: Through a series of Motions for Summary Judgment re: Duty, Plaintiff established an exception to the Public Duty Doctrine as it applied to the Washington State Patrol. Under the "special relationship" or "take charge" exception to the Public Duty Doctrine under Restatement (2nd) of Torts §315 and 319, the Court held that after taking the drunk driver into custody for being in physical control of a vehicle while intoxicated, the State Patrol trooper had a duty to exercise reasonable care to control the drunk driver to prevent reasonably foreseeable harm to others from her dangerous propensities. The standard of care for the state trooper was then established through the testimony of D.P. Van Blaricom, the retired Bellevue Chief of Police, who testified that the trooper unreasonably failed to prevent the drunk driver from having access to her vehicle. While law enforcement officers have wide discretion, in this situation they must separate the driver from the car in one of four ways: by impounding the car, by turning the car over to a sober, responsible adult, by turning the driver over to a sober, responsible adult, or by holding the driver in jail until she is sober. The standard of care was also supported by the testimony of Whatcom County Sheriff Bill Elfo and the two other officers who participated in the initial stop, one from the Whatcom County Sheriff's Office and one from the Bellingham Police Department. The forseeability of the drunk driver's actions after having her keys returned to her while still in an intoxicated state was illuminated by the testimony of Dr. Dary Fiorentino, a nationally renowned expert on alcohol and its affect on driving.
Probation Department's Duty: The drunk driver had been placed on deferred prosecution eight months before the crash, with a court order providing that she could only drive a vehicle with an alcohol interlock device. The court had required the Whatcom County District Court Probation Department to monitor the interlock condition. Unfortunately, the Probation Department failed to do so, claiming that they only monitored the interlock requirement when a judge specifically wrote "verify interlock" on the bottom of a Judgment and Sentence. Extensive discovery determined that in over 2000 Judgment and Sentence forms received by the Probation Department between 2002 and 2007, only one judge had ever written "verify install" on the bottom of a Judgment and Sentence, and that was to tell the Probation Department not to verify the install for the first 30 days. Since the drunk driver did not have an alcohol interlock device installed on the car, once she started drinking she was able to re-start her car three times, after three separate drinking incidents, prior to the collision.
Extensive Damages: Hailey French suffered a crushed right foot, a shattered right patella (kneecap), a comminuted right femur (thigh bone), a fracture dislocation of the right acetabulum (hip socket), and a crushed left wrist. Extensive damages were established through the testimony of Dr. Stephen Benirschke, who testified that he only began to see such devastating lower extremity injuries after the advent of the air bag because prior to that individuals involved in such head-on collisions did not survive. Rather than call the two dozen doctors who treated Hailey French through her 13 surgeries, Plaintiff relied upon a summary of treatment and prognosis produced by Dr. Michael Vondette, the physical medicine doctor who follows all of the total hip replacement patients at Vancouver's Holy Family Hospital. Dr. Ted Becker estimated that Hailey French suffered a 35 percent loss of whole body function under the AMA Guidelines to the Evaluation of Permanent Impairment.
Present Value Analysis: In addition to liability and damage issues, the jury heard conflicting testimony over the appropriate way to estimate the present value of lost future earnings and future medical expenses. Plaintiff called Dr. Eugene Silberberg, a retired professor at the University of Washington, who testified the appropriate net discount rate to calculate present value at one percent, a standard presentation. Defendants called William Partin, a Bellevue CPA and frequent defense forensic economist. Mr. Partin suggested that the Plaintiff could invest her recovery in a combination of treasury bills, AAA corporate bonds, and the S&P 500 stock index in order to receive a return, over expected future inflation, of 7.22 percent, thus reducing the present value of total future damages to an approximate $500,000. Through aggressive cross-examination, Dean Brett was able to demonstrate that all of the historical data relied upon by Mr. Partin failed to account for the 2008 market meltdown. While Mr. Partin suggested that the average return on treasury bills over the last 10 years as 4.6 percent, Brett pointed out that today, if Plaintiff were to receive an award, she would have to invest that award in treasury bills at the current rate of interest -- 0.6 percent -- not the average rate over the last ten years.
General Damages Argument: In an effort to demonstrate the nature and extent of general damages, Brett presented a series of charts which visualized two key questions: (1) how serious is the impact on Hailey's life? and (2) how long will the impact last? Chart 1 helps visualize the life impact of an injury like a fractured leg, it is moderately disabling, but the disability lasts only a short time (after six months of hobbling around on crutches, the victim is restored to the before accident condition).
Chart 2 demonstrates the life impact of a moderate injury, which lasts forever, such as a crushed wrist. This injury does not have a devastating impact on an injured person's life, primarily because the injured party does not walk on the wrist. However, the injury does last forever.
Chart 3 demonstrates the impact of a devastating injury that will last a lifetime, such as Hailey French's multiple fractured extremities. The crushed right foot, the fractured right patella, the fractured right femur, the fracture dislocation of the left acetabulum, and the crushed left wrist will have a serious impact that will last forever.
Finally, Chart 4 demonstrates what happens when the impact of the injury on the victim's life will grow over time as its effects expand through osteoarthritis, increased disability, repeated surgeries, and consequent increased disfigurement.
According to the May 10, 2009 Bellingham Herald, the Bellingham Police Department implemented a new policy that requires officers to book all DUI arrests into the Whatcom County Jail. Deputy Chief David Doll said the policy had been discussed for a number of years, and French's lawsuit was one of several factors that played a role in implementing it. "It's a public safety issue," Doll said. "It's our opportunity to make sure a drunk driver doesn't get back behind the wheel and drive." The Blaine Police Department is reviewing its policy on DUI arrests in light of the verdict in French's lawsuit, Chief Mike Haslip said. "These policy changes will save others from the types of injuries suffered by Hailey French."
The 5.5 million dollar verdict is the largest jury verdict ever recovered in Skagit County. The second largest jury verdict of 2.4 million dollars was also recovered by Dean Brett. Plaintiff was represented by Dean Brett, Bill Coats, and Rand Jack of Brett & Coats, and Gene Moses of the Law Office of Gene Moses. The Washington State Patrol was ably represented by Paul Triesch and Matt Daheim of the Washington State Attorney General's Office. Whatcom County was ably represented by Mike Patterson, Amy DeLisa, and Daniel Crowner of Patterson, Buchanan, Fobes, Leitch & Kalzer, as well as by Whatcom County's Chief Civil Deputy Prosecuting Attorney Randy Watts. The case is French v. Parker, State of Washington, and Whatcom County, Skagit County Cause No. 08-2-00530-8.
