Notable Cases
The following case results depended on a multitude of factors including the severity of injury or death, length of disability, the amount of medical expenses and wage loss, attitudes of jurors selected and presentation by counsel. Past results are not necessarily determinative of future awards or settlement values.
My most recent notable case played out exactly as I had predicted, utilizing a negotiating strategy called “Boulwarism” which I had always hoped to use, but never had both facts and issues strong enough to justify it.
My client was a brain surgeon who lost the bilateral manual dexterity he required to conduct the most complex brain surgeries, a brilliant man holding two precision scalpels, using three fingers of each hand to cut away tumors adjacent to vital parts of the brain which control swallowing and breathing. He literally lost his ability to save lives, although he was still able to perform surgeries which required fewer fine motor skills. But he also lost the ability to play guitar with his children and puzzles with his wife.
Boulwarism involves setting a settlement value and increasing that amount every time the opposing party responds. It takes a lot of guts to see it through to the end.
We could prove future wage diminution of $1M. But we knew the defendant driver had lots of insurance and we suspected that a jury would award significant damages for the loss of my client’s ability to save lives and to enjoy pastimes with his family. So after depositions and discovery, we started the settlement negotiations at $2M and gave a two week deadline. As the deadline approached, the defendant asked for more time. We refused. When the deadline passed, we increased the demand $250K and gave a one week deadline. When that deadline passed, we increased the demand another $250K and informed the defendant that our demand would continue to increase by that amount every week until it reached $5M, after which we’d withdraw all offers and there would be no further offers, leaving it in the hands of the jury. All of which I said with a big smile on my face and of course, with the consent of my client. Eventually, they got the message. 😁
The biggest verdict I’ve been able to achieve at trial was $9.1M, in Tepei v. Tepei and Uniroyal.
An entire Port Coquitlam family were injured in a single-car collision when their vehicle suffered a tire blowout near Chehalis, Washington on Interstate 5. The Tepei vehicle flipped over the concrete median of the highway and landed upside down in the southbound lanes of traffic. Four members of the family were ejected and suffered serious injuries which will affect them for the rest of their lives.
Initial investigation suggested that driver error and a defective tire likely both contributed to the collision. Together with then junior lawyer—now professor—Wyatt Pickett, we worked with more than a dozen treating doctors and another dozen expert medical witnesses in developing a concise and compelling story of what this family had been through. We also brought in a tire manufacturing and design expert from the U.K. to establish that a simple modification to the internal design of the tires would have prevented the blowout and the resulting harm to the family.
Uniroyal tried hard to have the lawsuit dismissed to British Columbia, or tried under B.C. law which would unduly complicate liability and would reduce the family’s recovery, capped under Canadian damages law. We turned back defense motion after motion, and proceeded to trial in Washington State. Lawyers can read about the procedural history of the case in the June 2004 issue of the TLABC Verdict.
After a seven-week trial in Lewis County, Washington, the jury returned a verdict in favour of the Tepeis for US $9.1M. At the time, the verdict was the largest damages award ever entered against an ICBC-insured driver, and is the first Lewis County verdict ever awarded in excess of US $1M.
I wish that were the end of the story. So did the family. You see, the entire verdict was against the owner of the vehicle, my injured clients’ father and husband. They had to sue their own dad/spouse. That’s what our strange insurance system requires. And since he didn’t have enough insurance to cover their damages, their own ICBC Underinsurance would come into play.
That required a whole new round of litigation, against the best Canadian defense lawyers, notably my esteemed colleague Avon Mersey, K.C. It also involved an arbitrator who failed to disclose a significant financial conflict. We had to pursue bad faith claims against ICBC.
Some of the claims had to be relitigated anew before a Canadian arbitrator. We were fortunate to have selected a sympathetic and brilliant jurist, who issued multiple rulings slamming ICBC, and awarding big damages for our clients. Some of the cases were settled for confidential sums. Some people at ICBC reportedly lost their jobs over the way this case was mishandled.
It took an incredible 14 years of slogging and battling to resolve that case start to finish.
SWUPI v. Washington Trade Intl
I’m proud to have helped Persian immigrants who became lifelong friends. Their plight was so compelling that jurors literally hugged them—and me—after they rendered their verdict in US Federal Court in Tacoma, Washington.
John and Jinous Nouri were an engineer and a chemist who immigrated to Canada with foreign credentials which necessitated ingenuity in starting over to establish success. Through their Richmond, BC company Stick-With-Us-Products, Inc., they developed a depilatory sugar which they named “Moom” (meaning wax in Farsi), a natural hair remover. They sold their products at trade shows in Canada and the US until they got big enough to negotiate a distribution agreement with an American company, led by Tony Akhavan of Washington Trade Intl. That distribution agreement ended up lasting less than a year. The Nouri’s thought Tony Akhavan had second thoughts.
In fact, they would soon discover that Tony’s thoughts were sinister. He wrote to their customers with the following:
We are Washington Trade International, the people who brought you Moom. We’ve discovered through market research that the name “Moom” doesn’t appeal to a variety of people, so we’ve decided to change the name from Moom to “Maya”. Only the name has changed, the product itself is identical.
Tony then began selling knock-off versions of Moom, in identical packaging.
The Nouri’s consulted Canadian counsel and quickly ran up $30,000 in legal bills. They knew they had a case but couldn’t afford to pursue it. A mutual friend suggested they talk to me.
Everything about their case spoke to me, I wanted to help right this wrong, using my unique credentials and skills. I agreed to assist them on a contingency basis and pursued a trademark and trade dress claim in Federal Court, giving new understanding to the expression “Making a federal case of it.” I faced nasty defense counsel who objected to every question I asked his client at deposition. He advanced 17 pre-trial motions to limit my clients’ damages. We won 16 of them, but they were successful in excluding our late-disclosed damages expert. That turned out to be a blessing in disguise.
After concise testimony from my clients, we received increasing offers during trial, but John Nouri, who had become like a father to me, insisted that we refuse these offers and wait for the jury to decide. I tried to tell him that we didn’t have a damages expert, that we couldn’t establish his market share, that we risked a small verdict.
The jury relied instead on the distribution agreement, which reflected certain minimum yearly gross sales to maintain exclusivity. They awarded a princely sum. The judge also awarded attorneys fees and a permanent injunction.
For the next 20 years, my family would get together with three generations of the Nouri’s, and John would regale anyone who would listen with the story of his case and our perfect friendship.
In Kwan v. Lagerway, I was able to resolve a claim for combined policy limits of US $5M against a driver, a tavern and certain corporate defendants implicated in a violent border crash.
In May of 2004, Mr. Kwan and three other members of his family were seriously injured when their vehicle was struck from behind while stopped at the U.S.-Canada border near Blaine, Washington. Mr. Kwan sustained injury to his brain and spinal cord along with multiple fractures. After a week in a coma, he awoke to learn that he sustained permanent partial paralysis as a result of the collision.
None of the three defendants wanted to take responsibility. The driver who caused the crash was traveling at 120 kph and had a blood alcohol reading three times the legal limit in Washington. He claimed that he was intoxicated not by alcohol, but by ether — which he claimed was leaking from tanks in the rear of his company’s van. A tavern owner insisted the driver hadn’t been “overserved” despite a bar tab listing 14 drinks – while the restaurant supply company claimed their driver wasn’t really working for them at the precise moment the crash took place…despite the fact that they had sent him up from Portland to deliver company products to customers in Whatcom County.
My firm engaged in an aggressive and multi-faceted strategy to maximize the recovery Mr. Kwan and his family members were entitled to, attending the driver’s criminal trial in Bellingham to learn the facts and circumstances surrounding the accident and the basis for the DWI charge. Retaining a multi-disciplinary team of medical experts to evaluate Mr. Kwan’s condition, prognosis for recovery, and the extent of his future care needs, we conducted juror “focus groups” with a nationally-renowned trial consulting firm to better understand how a Whatcom County jury would evaluate the issues presented. After devoting more than 200 hours to legal research addressing issues of Oregon and Washington law implicated in the case, I was able to leverage a settlement for my clients with the driver, the tavern and the driver’s employer for their combined policy limits. The settlement ensured that Mr. Kwan would have the financial resources to meet his ongoing care needs.
Brooks & Ishikawa v. Campagna & Cytodyne I was able to settle a double wrongful death case under US law (for a confidential amount) for a motor vehicle collision that occurred in Canada, by applying an international principal known as “depocage”, applying the laws of one country to specific facts and issues in a case which are connected to it.
In May of 1998, two young women were killed and six other people were injured in a fiery collision at the Peace Arch border crossing. The at-fault driver was speeding in excess of 160 kph when she struck a line of cars waiting to clear customs, attributing her reckless driving to a psychotic episode brought on by her use of an ephedra-based diet supplement she had purchased in the United States. I assisted all of the victims of this tragic accident against the manufacturer, designer, distributor and marketers of the diet supplement, as well as against the driver. The defendants argued vigorously to have the case dismissed to British Columbia or tried under B.C. law – a result which would have significantly diminished my clients’ right to compensation. Despite the fact that the accident itself occurred north of the US-Canadian border, I was able to convince a Washington court to retain the case for trial under Washington law, whereupon we were able to settle it for far more than would have been allowed in Canada.
I was interviewed by “Good Morning, America” for my work on that case.
Lee v. Farmers Insurance was insurance bad faith litigation which I filed as both a third party tort claim in Washington pursuant to the Insurance Fair Conduct Act (“IFCA”) and an underinsurance (UMP) claim filed in British Columbia. Lee was a passenger in a Washington-insured vehicle traveling in British Columbia when that vehicle lost control in icy conditions and plummeted down an embankment. Lee suffered disabling injuries including traumatic brain injury. The driver carried third party tort liability insurance of $100K with Farmers Insurance of Washington, and had no other assets. Lee carried underinsurance of $100K with American Family, and also had PIP coverage of $10K for medical expenses.
Many lawyers would look at such a scenario and conclude that such a case should be settled as quickly as possible for $210K. Two different lawyers advised her to do just that. Fortunately, Lee consulted me for a third opinion.
Owing to a certain Power of Attorney and Undertaking (PAU) which allows Farmers-insured vehicles to remain insured when travelling across the border to British Columbia, Farmers was obligated to increase its applicable coverage to BC’s minimums–$200K for third party liability, $150K for no-fault medical and rehabilitation expenses and $1M underinsurance, subject to certain deductions.
Had Farmers played it safe from the start, they would have settled this entire case for $890K—($1M UMP less $100K from Lee’s own underinsurance and $10K PIP). After educating them on the interplay of the two countries’ laws and IFCA, it cost them $200K in third party liability coverage, $150K for medical expenses and a further $1.2M for underinsurance and bad faith, plus Lee kept the $110K she collected from her own insurer, for a total of $1.66M.
Fortunately, we were able to collect these sums from the insurance companies rather than having to sue the lawyers who failed to advise her properly.
Hughes v. McVickers
My very first client and very first trial involved a widow who sued a funeral home for stealing a hat.
When Mr. Hughes died, his wife gave explicit instructions that he was to be buried in the clothes he was married in: western boots, belt, buckle and hat, and he was dressed that way during the open-casket ceremony. Unfortunately, the hat didn’t quite make it to the grave. Mrs. Hughes was shocked to see someone else wearing it after the funeral.
After accusing the funeral home of grave-robbing, Mrs. Hughes contacted ten different lawyers, all of whom refused to take her case. I agreed to take her case on principle alone, demanding $3,000 and the return of the hat. When they refused, I sued the funeral home, alleging “Negligent Infliction of Emotional Distress” and breach of the funeral contract.
Arguing that funerals are more for the survivors than the deceased, I asked the jurors to consider how they’d feel if this case had involved a child’s funeral, and had the item removed from the casket been a favorite teddy bear.
The Cowlitz County, Washington jury returned a verdict of $101,449.50, which included the value of the funeral contract plus $99,000 for compensatory damages.
The surprising verdict was picked up by the Associated Press, published in newspapers across the US and Canada, and made it into Newsweek magazine.
I was also interviewed on CBC Radio. That turned out to be nerve-wracking, complete with pregnant pauses and sweating akin to the scene in the movie “Broadcast News”. I was finally able to break the tension when asked about my client’s actual injuries, I stammered that it was mostly “nervousness and anxiety, much like I’m experiencing right now.” Fortunately, I’m a lot more polished 25 years later.
