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Houston partner Andy McCluggage obtained a favorable unanimous jury verdict for his clients and the clients’ insurer in Midland County, Texas, on November 29, 2018. The case, John Wiley v. Eduardo Martinez and N&B Well Service, was filed after the defendant CDL holder drove his tractor into the rear of Plaintiff’s trailer, which was stopped at a red light.

The cause of the accident was never in dispute: Mr. Martinez was distracted by a burning breakfast burrito that he was cooking in a portable oven in the passenger seat of his truck at the time of the accident. In addition, Mr. Martinez later failed a post-accident DOT drug test. The plaintiff had a recommendation for a 3-level cervical fusion that was alleged to be vocationally disabling. Defendants’ medical expert could not challenge that the cervical pathology could be reasonably addressed with the requested surgery.

Relying on those egregious facts, Plaintiff’s counsel tried his case with a focus on “Reptile Theory” and maintained that the defendant driver and DOT motor carrier “violated known safety rules” and “needlessly endangered the public” at the time of the occurrence.  McCluggage, who was hired to try the case after the discovery period had ended, countered this technique by acknowledging Mr. Martinez’s negligence throughout the trial, beginning during voir dire, and by imploring the jury to ignore their impulse to punish the at-fault parties and instead focus on Plaintiff’s damages, which included a course of attorney-referred medical and the aforementioned surgical recommendation that was nearly three years old by the time of trial.

The “Reptile Theory” also backfired, as did the notion that the company “failed to step up and help with the medical bills and past wages” which instigated a need to file suit “to make things right.” Defense counsel seized upon this argument and was able to admit into evidence through multiple witnesses evidence that Plaintiff and Plaintiff’s employer purposefully avoided available worker’s compensation insurance in favor of the lawsuit. Also admitted into evidence was the timing of plaintiff retaining counsel, which created a better roadmap to prove that the medical claims were caused by the lawsuit and not caused by the accident.

Plaintiff asked the jury for $1.3M in damages which included: $600,000 in noneconomic damages for pain and suffering and impairment, as well as over $500,000 in future loss of earning capacity. The jury returned a total verdict of $130,000, which included a mere $60,000 in noneconomic damages and $0 for past impairment, $0 for past loss of earning capacity and $0 for future loss of earning capacity. The win is a noteworthy example of addressing “Reptile Theory” at trial.

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Andrew J. McCluggage

Andrew J. McCluggage


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