46 Trial Lawyer • Fall 2022 man’s “Polarizing the Case.” However, in order for this to be effective, three things must be present: (1) you must spot and be able to cleanly articulate the “accusation”; (2) it must be false, meaning you and your client have accrued credibility and thus it’s a credibility battle you can win; and (3) you must be capable of making the case about the false accusation, i.e., to make it a referendum on your case. An example of polarizing our case was when the defense suggested the amount our law firm had paid ($35,000) to our vocational rehabilitation expert, was exorbitant and that, in effect, we were trying to buy a verdict. We were confident we could win this battle. We asked the jury to compare the helpfulness of the testimony of our expert, Scott Stipes, with the defendant’s vocational expert, John Lipnicki. We had our expert fly to Vancouver to observe Moutal in the brewery, where he took many helpful photos, many obviously taken when crawling around on his hands and knees. His careful work fully showed the plaintiff’s many responsibilities and the heavy physical demands of his job. Closing Our closing argument reiterated the themes introduced in our opening statement, culminating in an ask for damages. One theme we attempted to communicate throughout our case was that a trial is a search for truth, that plaintiffs were embarking on a quest for the truth along with the jury, but the defendant was not really interested in the truth. We argued that any time one of DHL’s trucks was involved in a wreck, it had a “legal swat team” of lawyers, engineers, and experts of every description standing by. Another trial theme was it was pure luck, with no credit to the defendant, that Moutal did not die or at least lose his leg. It was luck that a trauma nurse was the first one on the scene and applied a tourniquet that probably saved his leg. It was luck that the on-call surgeon at OHSU happened to be a world class doctor with expertise in the very vascular problems Moutal had. It was luck that Moutal’s Canadian roommate was an occupational therapist who mentored him in his rigorous daily exercises. It was luck that Moutal had no lost wages because his boss continued to fully compensate him even though he was injured and could not work. It was luck that Moutal’s past and future health care costs were minimal (about $300,000) because in Canada health care is subsidized. We argued that these facts were all “windfalls” for the defendant, which they were trying to exploit to receive credit for what could have been much, much worse. It was fortunate for everyone the defendant wasn’t facing two wrongful death claims. After deliberations, the jury awarded $9,658,894 in damages. Specifically, the jury awarded Moutal $1,258,895 in economic damages, $4,000,000 in noneconomic damages, and $4,000,000 in punitive damages. The jury also awarded Newman $400,000 in noneconomic damages. Minimal post-verdict settlement discussions occurred. The defendant paid the general damages and appealed only the $4,000,000 punitive damages award to the Ninth Circuit. The punitive damages award was upheld by unanimous verdict. Moutal v. Exel, Inc., 2022 WL 3031580 (9th Cir. Aug. 1, 2022). It is often said that good verdicts are lost, not won. Sometimes there is an art to allowing the defense to lose a case, as opposed to our winning it. This case is a great example of that. Bill Barton is a trial attorney at Barton Law Firm PC. He contributes to OTLA Guardians at the Guardians Club level. His office is located at 214 SWCoast Hwy., Newport, OR 97365. He can be reached at attorneys@bartontrialattorneys.com or 541-265-5377. Bike Case Continued from p 45
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