Wingate, Russotti, Shapiro & Halperin, LLP partner William Hepner obtained a $2.5 million recovery for a recently admitted member of the asbestos union, who injured his neck and back when he fell from the unsecured ladder on which he was doing his work. One month later, while crossing a street using the cane he needed due to the fall, he was struck by a car, injuring his neck, back, and knee.

Although he had some treatment to his neck and back between the two accidents, no MRI was performed until after the second accident. As a result, it would have been impossible to say which accident was responsible for the injuries, including the need for cervical fusion surgery, which the plaintiff had four years after the accident. (The plaintiff also had a knee injury that was easily attributable to the auto accident.)

The defendants for both accidents felt confident that they would be able to argue that it was the other accident that caused injury to the neck requiring surgery. The plaintiff’s surgeon, although unable to opine which accident was to blame for certain, was able to say that each caused injury and each was sufficiently traumatic to require surgery.

Bill Hepner utilized a certain section of the pattern jury instructions to argue that if a jury could not determine which of the two accidents caused the problems, then both would be held responsible. In a motion to the court, he asked that the cases be tried together for damages purposes, because if they were tried separately, the plaintiff could lose both cases when the defendants blamed the other accident for his injuries. By the time of the mediation, at which Bill settled the two cases, the judge had not yet made a decision as to whether he would grant the request to try the cases together. Bill had been successful in convincing a court in another similar case with different parties, so he convinced the defendants of the likelihood of a similar result here and settled the case at a mediation.

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