And The Defense Wins

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					And The Defense Wins
Published 3-30-11 by DRI

Walter E. Judge, Jr.

On February 3, 2011, Vermont DRI member Walter E. Judge, Jr., of Downs Rachlin Martin PLLC in
Burlington obtained a defendants’ verdict in a personal injury case. Pcolar v. Casella Waste Systems,
Inc., Chittenden Superior Court, Docket No. S0719-08 CnC (filed May 23, 2008). Mr. Judge represented
a regional waste hauling company and one of its drivers. The plaintiff alleged that he was severely
injured when the automatic “gripper arm” of a sidearm loading trash truck, came down on him and hit him
on the head and shoulder.

The gripper arm is a device that reaches out from the side of the truck, grips the trash barrel, lifts the
barrel and dumps its contents into the top of the truck, and then returns it to the ground. The plaintiff had
seen the truck driving by his house and stopped the driver to ask if he could throw some cardboard into
the truck. Since the truck was a top loader, the driver instructed the plaintiff to place the cardboard
sheets on top of the gripper arm. The plaintiff did so and then moved away. The driver raised the arm
and dumped most of the cardboard into the truck but a piece or two fell off the arm as it was going up. As
the arm was coming back down, the plaintiff moved in and bent down to retrieve the piece or pieces of
cardboard that had fallen to the ground.

There was no dispute that the plaintiff was hit as the arm was coming back down. The issues were 1)
where he was hit (head and shoulder, or just shoulder); 2) how severe was the injury; and 3) whose fault
was it? The plaintiff disputed that he had bent down to pick up any pieces of cardboard, but rather, that
the arm struck him from behind as he was walking away from the truck. It was unclear whether there
was a witness who saw the incident, but at trial, it was the plaintiff’s word against the defendant driver’s
word as to the facts of the incident. The plaintiff claimed that he was temporarily knocked unconscious at
the scene. The defendant driver said that the plaintiff walked away from the accident rubbing his
shoulder, telling the driver that he was okay, and that the plaintiff was never knocked unconscious.

Although the plaintiff had lawyers involved at various times before and after filing his pro se complaint, he
represented himself at trial. The plaintiff claimed that he suffered a traumatic brain injury as a result of
the accident, and that he is unable to continue working as a real estate developer. However, the facts
showed that he waited a week after the incident to seek medical attention, and the report of that visit to
the walk-in clinic said that there was no evidence of a head injury. Three weeks later, he had an
inconclusive visit with another doctor.
After that, the plaintiff waited four years before seeking any further medical attention. At that time, the
plaintiff sought a neurological consult, but the report of that consult was inconclusive at best. The
neurologist then referred the plaintiff to a neuropsychologist for cognitive testing. Unfortunately for the
plaintiff, the neuropsychologist found that the plaintiff had intentionally “underperformed” on her standard
tests, and that the results of her tests were therefore invalid. The neuropsychologist could not, therefore,
testify that the plaintiff had any cognitive impairment.

As part of his cross-examination of the plaintiff on his brain injury claim, Mr. Judge was able to show that
the plaintiff, as a pro se litigant, had drafted and filed many motions with the court, had taken several
depositions, and had even drafted and filed a Daubert motion in an attempt to exclude the findings of his
neuropsychologist that he had “underperformed” on her tests—all while claiming that his alleged brain
injury prevented him from working in real estate.

Defense counsel also showed that the plaintiff was involved in numerous other litigations with his former
business partners and that those lawsuits, combined with the reality of the current “Great Recession,”
might explain why the plaintiff was not able to do any real estate deals in the last several years.

The jury deliberated for about an hour and a half before returning a verdict that the defendants were 30
percent negligent and the plaintiff was 70 percent negligent in the incident. Because Vermont is a
modified comparative negligence state, where a plaintiff does not recover if he is more negligent than the
defendant, the plaintiff recovered nothing.

To learn more about DRI, an international membership organization of attorneys
defending the interests of business and individuals in civil litigation, visit

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