CLEVELAND, Ohio (Cleveland Academy of Trial Attorneys) – Since the Covid-19 pandemic began, we’ve all been wondering how civil jury trials will look during the pandemic, and how injury victims will fare in this environment. A recent plaintiffs’ jury verdict of $325,436.98 obtained in federal court by attorneys Nomiki Tsarnas and Michael Maillis, of the KNR law firm, provides insight into a Covid-19 era trial and hope that, despite the difficult odds, injury victims can prevail.
The case arose out of a two-vehicle crash in Ottawa County, Ohio on July 9, 2016. The client, Jerry Ickes, was driving his truck with
attached trailer carrying a boat northbound on State Route 19 in Carroll Township. At the same time, Johnny Word, an employee of Fresh Donuts, LLC, delivering donuts in his employer’s van, was traveling westbound on Duff Washa Road. Word failed to yield to a stop sign at the intersection of State Route 19. His vehicle entered Ickes’ path causing Ickes’ truck to collide with the driver’s side of Word’s van. Word died as a result of the crash, but Ickes and his passenger (who was not a party to this action) were seriously injured.
The case was filed in federal court in Toledo on diversity grounds. The plaintiffs were Jerry Ickes and his wife, Rose Ickes; the defendants were Johnny Word’s estate and Fresh Donuts, LLC. As the defendants stipulated Word alone was at fault, the case was tried solely on damages.
Jerry Ickes suffered multiple orthopedic injuries in the crash. He suffered a comminuted wrist fracture requiring a surgery with implantation of screws and plates that were later removed, and that would likely need a future wrist fusion. He fractured his patella, which required no treatment, and had a hairline fracture in his ankle and a broken baby toe in his right foot that did require surgery. He also sustained a laceration that became infected and had to be debrided.
Nevertheless, his damages case presented challenges. At the time of the crash, Jerry, in his 60’s, was suffering from severe pre-existing rheumatoid arthritis. The arthritis was so advanced that his hands were disfigured, and caused him to need six prior foot surgeries. The defense argued the arthritis would have necessitated a wrist fusion even without the accident. The experts, however, ultimately agreed the wrist fractures were caused by the accident, but that Jerry was more susceptible to these injuries due to his pre-existing arthritis.
Another difficulty arose from the fact that Jerry had been on SSDI for ten years, but was still working as a truck driver. SSDI allows one to earn up to $14,000 per year without losing benefits, provided one is not engaged in “substantial work activities.” The defense tried to use this fact against Jerry, arguing that although his tax returns showed him not exceeding the $14,000 cap, his gross before deductions exceeded that amount.
The trial began on October 6, 2020 in the federal courthouse in Toledo, presided over by Judge Jack Zouhary. The judge required potential jurors to respond to a COVID questionnaire, and anyone expressing concerns about serving on the jury was dismissed. Consequently, the court forbade the lawyers from questioning the venire in voir dire about their attitudes toward the pandemic. The jury that was ultimately seated consisted of ten men and two women. To the best of plaintiffs’ counsel’s recollection, none of the jurors had a college degree, and all but one of them hunted, fished, or camped for recreation.
The courtroom was arranged with six jurors seated in the jury box, and six in the spectators’ area. No spectators were allowed. Counsel tables were turned to face the jury. Everyone had to wear a mask at all times, but when the judge, witnesses, or lawyers were speaking, the masks were lowered. There was plexiglass at the witness box and around the court reporter and bailiff. Hand sanitizer and masks were provided. The lawyers had to examine witnesses while standing or seated at the counsel tables. Exhibits had to be pre-loaded on the attorneys’ laptops, but exhibiting them on the screen was controlled by the bailiff. The attorneys could use the podium during opening and closing arguments, but had to move it over to the counsel table. Temperatures were taken each time one entered or exited the building. The jury’s deliberations occurred in a fourth floor courtroom, while plaintiffs’ counsel used the jury room.
After a two day trial, the jury returned a total verdict of $325,436.98. They awarded Jerry Ickes $76,436.98 for his economic loss, $175,000.00 for his noneconomic loss, and $54,000.00 in future damages. Rose Ickes was awarded $20,000 for loss of consortium. The defense’s last offer was $260,000; the plaintiffs’ last demand was $340,000. A different federal judge mediated the case before trial and recommended settlement of $300,000, which the defense rejected. They said they would “never pay a dollar over $260,000″ – although this stance changed after the verdict. The plaintiffs’ motion for prejudgment interest is currently pending.
The judge, who spoke with the jurors afterwards, reported they liked the plaintiff and thought the defense was too
hard on him. In closing argument, Mike Maillis explained Jerry’s drive to keep working despite his rheumatoid arthritis by using the analogy of Kirk Gibson’s game-winning home-run in game one of the 1988 World Series despite his sore left hamstring and injured right knee. Like Kirk, Mike argued, Jerry loved his job and shouldn’t be penalized for pushing through the pain.
Trials in the time of the pandemic may be hard to come by and difficult to wage, but the verdict won by Nomiki and Mike proves they are not impossible even under challenging circumstances.
The case is Jerry D. Ickes, et al. vs. Ronald Thomas, Personal Representative of the Estate of Johnny Jay Word, et al., N.D. Ohio, W.D. No. 3:18-cv-00918.