44 Trial Lawyer • Fall 2022 Bike Case Continued from p 43 after the crash, but chose not to take notes or record their conversation. The jury gasped when learning this fact on cross-examination. The defendant wanted to paint the plaintiffs as being irresponsible and the cause of their own injuries, but we were able to eliminate a number of problem areas the defendant intended to present at trial including: • Prohibiting evidence or argument blaming the plaintiffs for exercising their right to bike on the shoulder of Interstate 84 (assumption of risk). • Excluding evidence or argument related to the plaintiffs not having a rear-view mirror on their helmets or bicycles. • Excluding evidence or argument related to the plaintiffs visiting breweries and/or consuming alcohol in Hood River earlier in the day. • Excluding evidence that the driver was not cited by state police for any kind of traffic or trucking violation or otherwise charged with a crime. General damages Damages were challenging for several reasons. Like many serious cyclists, Moutal was a very fit person. He also got lucky in that a trauma nurse happened to be riding in the first car to encounter the scene after the crash. The orthopedic surgeon testified that this combination of overall fitness plus immediate medical attention saved his leg. While Moutal’s road to recovery was difficult, it is hard to imagine a better outcome after being hit by a speeding semi truck. Today Moutal walks without a cane, though he still limps. Practice tip: When Moutal was in town for his deposition, we had his original treating surgeon at OHSU conduct a follow-up examination. During the visit we also had a physical capacities evaluation done, which both his surgeon and our vocational expert relied upon in forming their professional opinions concerning his future medical limitations and lost earning capacity. Under federal rules, treating doctors do not need to write a report, but retained experts do. Erring on the side of having treating doctors provide a report is safer. Moutal is stoic by nature, so he struggled to communicate his noneconomic damages. Indeed, we had him testify to his gratitude and how fortunate he felt (this was authentic testimony for him, and it flowed far more naturally than his discussing his damages). However, Newman, who is now his wife, was far better able to describe Moutal’s suffering, a topic we mostly ignored with Moutal himself. In one powerful moment, Newman described seeing him crying at night when he thought nobody could see him. The image of a stoic man crying at night is powerful. If you know where to look, you will find it in cases more often than one might think. Although Moutal is a licensed mechanical engineer, he never actually worked as an engineer. Instead, he pursued his dream of becoming a brewer, and he worked his way up in the industry to became a brewmaster for a craft brewery outside Vancouver, B.C. The owner of the brewery continued to pay Moutal his full salary when he was in the hospital and during his recovery, so he did not have any lost wages. At the time of trial, he continued in his same job and salary as a brewmaster, albeit with serious physical limitations. The owner testified that if he sells the brewery, the purchaser would probably not continue employing Moutal. Since Moutal had no lost income, we emphasized the difference between lost income and lost earning capacity. We flew his boss, the owner of the brewery, down from Canada to testify regarding Moutal’s work ethic, character and competence. He also explained that Moutal could not work as well as he could before and that now he would struggle to find
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