After a collision on Ivy Road just west of Charlottesville more than five years ago, an Albemarle County man was left with a concussion, arm pain and a headache so persistent that medical and therapeutic bills topped $48,000.
One neurologist estimated that future medical bills could exceed another quarter of a million dollars.
And while the Fluvanna County man behind the wheel of the other car admitted he caused the accident, when the injured party filed suit, seeking $500,000 and a “multiple” of the sum of the $300,000 in past and future treatments — conceivably a seven-figure sum — the Fluvanna man pushed back.
He’ll still have to pay, but not nearly that much.
Returning from deliberations, the five men and two women of the jury awarded Thomas R. Bouber just $30,000.
“We award the plaintiff no interest,” the jury’s foreman added on the verdict form submitted Aug. 2.
By any account, it was a victory for Thomas A. Zeitler’s defense, which was handled by attorney John Cattano, who savaged the case of Bouber v. Zeitler during his closing argument.
“Sometimes you just got to say it,” Cattano told the jurors. “This was a nothing accident.”
Although the impact saw the defendant’s Ford Econoline van slamming and pushing the plaintiff’s Volvo into the car in front of it, air bags never deployed, and the driver of the front car, a Camry, promptly drove off. Cattano pointed out that the victim’s teenage daughter, riding in the Volvo, was not even fully aware that an accident had occurred.
“No police officers were called to the scene,” said Cattano, “and they all drive away.”
As his client sat quietly at the plaintiff’s table in Albemarle County Circuit Court, attorney Thomas Hendell gave the court a very different account, one that alleged life-changing impacts on the now 52-year-old Bouber.
“He’s not just playing the violin,” said Hendell. “He’s not the same person.”
Now 67, Zeitler lives in the Fluvanna County community of Troy. At trial, the independent floor contractor admitted that he was looking down instead of paying attention to the traffic that had congested on Ivy Road near the Boar’s Head Resort the day of Aug. 6, 2019.
“He’s acknowledged it was his fault,” said Cattano, as Zeitler watched from the defense table. “He’s not making excuses.”
Cattano went on to rip into the plaintiff’s case, which has been delayed by the pandemic.
“Everyone agrees that this was a very, very unfortunate accident,” said Cattano. “But just because an accident occurs doesn’t automatically mean they get what they’re asking for.”
The doctor handling Bouber’s rehabilitation, Preston Grice, introduced reams of invoices suggesting an array of attributable ailments including concussion, neck pain, a disc bulge, photophobia, occipital nerve injury, hearing loss, sleep disturbance and a decreased range of motion.
While Grice predicted that his patient would incur an additional $178,000 in future invoices, another doctor consulted by the plaintiff, Gregory O’Shanick, predicted that Bouber was facing $252,000 in future bills.
“His life has been dramatically changed, and you have to compensate him for that,” Bouber’s lawyer implored the jury.
But before the jury could deliberate, they received a skeptical view from Cattano who called the claims “quite pathetic.”
Cattano homed in on the fact that the plaintiff’s first allegation about injury did not arise until a routine massage appointment three days after the accident. The plaintiff alleged that amnesia led him to initially downplay what happened.
“I don’t want to hear about any amnesia,” said Cattano. “It’s just a little curious.”
Cattano noted that the plaintiff, an exercise physiologist working for the University of Virginia Intramural Sports department, had been seeing a chiropractor since 2014. Cattano downplayed Bouber’s aches and pains as neither new nor surprising for a middle-age man.
“He was tired before; he was tired after,” said Cattano. “So what?”
There was no disputing that three months after the accident Bouber traveled to Florida to participate in the Miami Man Triathlon. With a time of 2:59:25, the then-47-year-old Bouber placed second in his age group and, out of 308 participants, 14th overall in the 56-mile cycling and 1.2-mile swimming competition.
“Who does this?” asked Cattano. “I commend him.”
Cattano went on to blast Bouber’s allegations of suffering from anxiety, fearfulness, irritability and other alleged ailments Cattano called “subjective crapola.”
Cattano then recited another handful of Bouber’s ailments, including tinnitus, neurological disorder, blood disorder, sleep disorder, irritability, aggravation and trouble with semantic fluency.
“I’m sure the list is going to grow,” said Cattano. “He’s ruining a guy’s life based on subjective complaints. He’s trying to capitalize on an accident.”
The jury award of $30,000 is just 63% of what Bouber claims to have spent thus far on his treatments, which include massages.
“They believed John [Cattano] obviously,” legal analyst David Heilberg told The Daily Progress. “John has been doing this for years. It’s his niche; it’s his thing.”
Heilberg said that minimum impact soft tissue injury, what the legal community calls MIST, is Cattano’s specialty.
“You wouldn’t want to go up against him on a MIST case,” said Heilberg. “He’s the master at it.”
Cattano’s legal opponent was less impressed.
Hendell blasted Cattano’s closing arguments as “mean-spirited and contrary to the evidence” during his own closing argument.
“We proved every penny of $300,000 in past and future medical bills, and we respectfully disagree with the jury’s verdict,” Hendell told The Daily Progress.
Bouber, in a post-trial interview, said that his injuries were real and he loathes the way they were portrayed by the defense.
“It hurt on a personal level, because I felt like I was not believed and that my suffering wasn’t real,” Bouber said. “And on top of that, I was cast as somebody who’s taken advantage of the system.”
Bouber said that the only reason he decided to hire a lawyer was to stop phone calls from insurance adjusters.
“Zeitler’s insurance company kept harassing me on a daily basis,” Bouber said. “I was suffering not only from a headache but a concussion, and I couldn’t concentrate, and I couldn’t get my thoughts together.”
Bouber isn’t alone in his assertion that his injuries were real. A 2005 study published in Pain Research and Management, a scholarly journal, rejected the MIST phenomenon as an insurance industry attempt to broadly classify delayed-onset whiplash as a “psychosocial phenomenon.”
Once Bouber got into court, he discovered something else about insurance. He learned about the so-called third-party rule, which refers to Virginia legal precedent dictating that his side couldn’t mention that an insurance company would foot the bill for any jury award.
“If you mention that there’s insurance to the jury,” said Heilberg, “they might award a judgment just because there’s insurance.”
Ironically, it was Bouber’s own insurance company, State Farm, that funded Cattano’s legal work. That’s because Zeitler carried only $50,000 in liability insurance, an amount Bouber received prior to trial, so Bouber’s own underinsured coverage stepped into the legal battle.
Bouber said that he would have performed even better at the triathlon in Miami had he not been injured and that he particularly resented the way Cattano listed his litany of ailments as if they were concoctions.
“It just felt like he used dirty tricks in a very sleazy way,” said Bouber. “I was just looking for compensation for my injuries.”
Source: www.dailyprogress.com
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