$________ GROSS – MOTOR VEHICLE NEGLIGENCE – AUTO/TRACTOR-TRAILER COLLISION – TRAUMATIC BRAIN INJURIES CLAIMED BY MINOR PLAINTIFF – POST-TRAUMATIC STRESS SYNDROME TO SECOND CHILD – 70% NEGLIGENCE ASSESSED AGAINST HOST DRIVER – NEW TRIAL ON NON-ECONOMIC DAMAGES GRANTED.

Brevard County, FL

The plaintiffs in this action were minor passengers, ages four and eight, who alleged to have sustained permanent injuries as a result of an automobile accident caused by the defendant’s tractor-trailer. The parents of the minor children brought derivative claims. The defense argued that the collision was caused by the negligence of the host driver as well as an unidentified tractor trailer which cut in front of the host vehicle.

The two minor plaintiffs, a four-year-old girl and her eight-year-old brother were back seat passengers in a vehicle driven by a neighbor in route to the charter school they attended. The plaintiffs claimed that the tractor-trailer, driven by the defendant truck driver and owned by the defendant distributing corporation, was traveling at excessive speed and too close behind the host vehicle.

The plaintiffs alleged that the defendants’ tractor came very close to the back of the host vehicle, causing the host driver to leave the road surface and enter the median. Evidence showed that the host vehicle traveled for ________ feet before reentering the highway in front of the defendant’s tractor-trailer, perpendicular to oncoming traffic. The defendants’ tractor-trailer struck the host vehicle and pushed it back into the median. The plaintiffs alleged that telephone records showed that the defendant truck driver was talking to his girlfriend on his cell phone at the time of the impact and for two minutes after he exited his truck.

The host driver was killed as a result of injuries sustained in the accident and her estate settled her family’s separate lawsuit against the defendants. The host driver was listed as a Fabre defendant on the verdict form. The plaintiffs introduced photographs depicting the severe property damage and one photograph of the deceased driver.

The four-year-old female plaintiff was diagnosed with traumatic brain injury and partial complex seizure disorder related to the accident. The minor plaintiff’s mother (a teacher’s aide) and some of her teachers testified that the little girl was observed often staring into space following the accident. The plaintiffs’ neuropsychologist and neurologist testified that diagnostic testing supported a diagnosis of traumatic brain injury and petit mal seizures related to the head injury. Evidence showed that the minor plaintiff exhibited a hairline skull fracture following the impact. The plaintiffs’ doctors testified that the little girl continues to exhibit mild cognitive deficits related to the injury. The eight-year-old male plaintiff claimed post-traumatic stress disorder as a result of the ordeal of the fatal collision. Plaintiff’s counsel requested a total of $36.4 million in damages during closing argument.

The defendant truck driver denied talking on his cell phone at the time of the impact and testified that he called his girlfriend only after the accident. The defendant’s girlfriend testified that the defendant was not on the telephone when the impact occurred, but called her afterwards and said “I think I just killed this lady, I’ve got to go.” The defendant truck driver denied that his actions caused the host driver to leave the roadway. The defendant testified that a tractor-trailer in front of the host vehicle changed lanes in front of her and forced her off the road. The defense also argued that the ________ dispatch sheet indicated that a tractor rig forced another vehicle off the road. The phantom tractor-trailer was also a Fabre defendant on the verdict form.

The defense further introduced testimony that the host driver had active THC in her system and that the THC compromised her driving abilities including her perception and reaction time. The plaintiffs countered with an expert toxicologist who testified that the THC was not a factor in the accident.

The defense contended that the minor female plaintiff’s staring into space for 15 seconds at a time had fully resolved after she was given anti-seizure medication. The defense also argued that a school record indicated that the female plaintiff exhibited some weakness in the categories of cognitive functioning before the accident. The defendants’ neuropsychologist confirmed cognitive weakness in executive function, but testified that the minor could live a normal, productive life and had an average IQ. The defendant called the neurosurgeon, who treated the girl in the emergency room. This expert testified that her minor skull fracture was not in the area which affects cognitive function, but was towards the base of the skull.

The defendant also called a first responder (a good samaritan) who removed the two children from the back of the car after the collision. This witness testified that the little girl was unconscious and that he blocked the little boy from seeing the host driver’s body.After three weeks of trial, the jury returned a total combined verdict of $1.2 million. The jury found the defendant tractor-trailer driver and his employer 30% negligent and the Fabre defendant host driver 70% negligent, reducing the award to net damages of $________. The jury declined to assess negligence against the Fabre defendant phantom tractor-trailer.

The award included $________ for the female plaintiff comprised of $________ in economic damages and $________ in non-economic damages. The male plaintiff was awarded $________ in economic damages. The plaintiffs’ post-trial motion for new trial on non-economic damages was subsequently granted. The plaintiffs’ motions for additur and mistrial were denied. The parents derivative claims were withdrawn after the court indicated it would grant the defendants’ motion for a directed verdict on those claims.