Verdict for the Defense

As a trial recap, the plaintiff, Danais Santana, asserted that she has $17,000 in medical bills as a result of an October 2009 accident. The Plaintiff filed, years ago, and before any of these people were involved, a proposal for settlement for $4,250. Therefore, if this plaintiff received a verdict totaling roughly $5,500, our insured would be exposed to approximately $200,000 in attorneys’ fees.

The Plaintiff presented her own testimony at trial, which went very poorly, as this plaintiff was involved in three prior accidents. The plaintiffs then just simply read the previous testimony of Dr. Robert Martinez, our expert. The plaintiffs then called Dr. Freed, Chiropractor who had seen the plaintiff after this motor vehicle accident. The cross examination of Dr. Freed went  well,  Dr. Freed had to admit that he didn’t have knowledge of the plaintiff’s three previous accidents, or the extent of the injuries that she sustained in these accidents. Despite this, he did not change his opinion.

 To finish the case we played the deposition of Dr. Ravipati, treating physician, whose testimony was confusing, but in any event, established that because of the inaccurate medical history the plaintiff had given him, he could not determine within a reasonable degree of medical probability that there was any injury caused by the October 2009 accident.

 The jury determined there was no causation of any damage as a result of the October 2009 accident, and came back with a defense verdict in approximately 20 minutes.

 In my opinion, any time that we can get a plaintiff or a claimant lying, it is devastating to their case.

Culpepper Kurland in the Spotlight

Culpepper Kurland law firm long on image, short on trials
By Steve Nohlgren, Times Staff Writer
In Print: Sunday, January 27, 2013

It was a minor rear-end collision with no obvious injuries. But when a Sebring jury finally had its say last month, that 3-year-old fender bender created a legal milestone. • The Tampa law firm of Culpepper Kurland at last conducted its first trial. • Created six years ago by two energetic 30-somethings, the firm has parlayed hip, edgy advertising into a thriving personal injury practice. • Where most legal commercials show earnest attorneys pontificating in front of law books, Brad Culpepper and Brett Kurland move to a hard rock beat. They walk around town in slow motion, stride up courthouse steps, address juries and reporters, creating a vibe familiar to any fan of TV legal drama.

The ads are such a hit, strangers stop by the office and ask to take a photo with the lawyers.

But the reality of Culpepper Kurland — like the legal niche they compete in — is far from the Hollywood image.

The firm specializes in auto accidents, cases that usually settle no matter who the lawyers are. Even in that crowd, Culpepper Kurland stands out. They have filed hundreds of lawsuits but taken only one, the Sebring fender bender, to a verdict. They say clients prefer the certainty of settlements over the potentially bigger — but riskier — payoffs of trials.

Competitors — including Culpepper and Kurland’s former mentor — have taken notice. Top-notch settlements occur when opponents fear your trial record, John Morgan says. And once every six years doesn’t cut it.

“If you don’t get into the arena, all of your other cases are compromised,” says Morgan, also familiar to TV viewers with his “For the People” campaign. “If the insurance company thinks you will always take the last offer, they never will offer what the case is worth.”

Clearwater’s Carey & Leisure, another heavy advertiser, might take 1 percent of its cases to trial, “but it is an important 1 percent,” Tom Carey says. Trials help lawyers predict how juries will react, Carey says. “If you never try a case, you have no reference point” while negotiating settlements.

Culpepper and Kurland insist, however, that good payouts stem from thorough preparation — ordering the right medical tests, preparing witnesses, taking depositions and plugging any holes in cases.

“We are going to medically manage that file and we are going to negotiate that file better than anybody else in town,” Culpepper says. “For my first five years, I had the umbrella of Morgan behind me, and I have seen nothing but an increase in the value of offers since I’ve been with the CK firm.”

Culpepper and Kurland spend more than $1 million dollars a year on advertising and treat it like a one-third partner, Culpepper says.

“The monster is hungry and wants to be fed,” he says. “Sometimes, he makes as much as we do.”

 

 

John Morgan usually hires experienced civil trial lawyers. But 11 years ago, a young man three years out of law school wrangled an interview and sold himself on the spot.

Brett Kurland earned MBA and law degrees from Stetson University. He rose fast in Pinellas County’s state attorney’s office, where criminal trials come along every week or so.

“I loved the adrenaline rush. I always wanted to win,” Kurland says. “If I would lose a case, I would get depressed for three days. I took it personally.”

Kurland promised John Morgan that doggedness would trump lack of civil court experience.

“He made a great appearance,” Morgan recalls. “I thought, ‘This guy, if we could harness his energies and competitiveness, could be a really good trial lawyer.’ ”

Kurland’s wife, Blair, was a Culpepper. Her grandfather was Florida’s first university chancellor. Her father led the University of Florida student body and captained the football team. Her famous brother would soon knock on Morgan’s door as well.

Brad Culpepper was a Gator All-American and dean’s list student. His 6-foot-2 frame was small for a defensive tackle, but he starred as a Tampa Bay Buccaneer.

Bored in off-seasons, he attended UF law school from January through May — possible because the Bucs were usually so terrible he didn’t have to play in January. He had swagger and a name that could attract clients.

“I loved him,” Morgan says. “He looks like a million dollars and is smart as hell.”

The brothers-in-law specialized in auto accidents — the meat and potatoes of personal injury law. They learned Morgan’s high-volume model, which they would later copy at their own firm.

Case managers collect relevant records, then lawyers “value” the case based on car repairs, medical bills, lost wages and subtle factors like potential jury sympathy. Often, lawyers on both sides value the case within a similar range, then negotiate the actual payout.

Within a few years, both Culpepper and Kurland placed consistently among Morgan’s top fee producers. Culpepper says he earned in the high six figures by 2006. Kurland declined to discuss his income, but Morgan estimated it at $600,000 a year.

Then the firm altered its pay policy — to encourage more trial work, Morgan says. Culpepper had notched one trial as lead attorney; Kurland had none.

Culpepper remembers the change as more of a pay cap. “I was going to have to work twice as hard and earn less,” he says.

Kurland says money wasn’t his biggest concern. He wanted to run his own business and had innovative ideas for legal advertising. It was time.

 

 

Two men in dark suits glide through Tampa streets. Clouds scud by, waves break on the shore. The men keep moving but say nothing. A message appears as the music crescendoes: “If you have been injured … EMPOWER YOURSELF.”

Another high-gloss Culpepper Kurland is on the air.

“It just took off. People loved that,” Kurland recalls. “We didn’t need to talk. People knew what we do. It’s branding and about being different and projecting confidence and energy.”

To critics who suggest that such pizzazz has little to do with settling cases, Kurland invokes the lizard. “You have been pounded with the gecko over and over with commercials that have nothing to do with insurance,” he says. “But people remember that, and when they need insurance, they call GEICO.”

Culpepper Kurland opened its Tampa office in March 2007. After four years, the firm averaged two new clients a day and is still growing, Culpepper says. The staff has grown from five to 13.

Both men describe their temperaments as “polar opposites,” helping define their distinct roles in the firm.

Culpepper is comfortable in the public eye, gives interviews and goes on radio shows. Big photos of his playing days decorate the conference room. But family comes first, he says. He has learned to work “smarter” — fewer hours with better results — so he can be there for Little League and piano lessons. His office is blanketed with 191 photos of his wife and three children, mostly on vacation.

Kurland manages the firm and thinks about business around the clock, he says.

“Brad is pragmatic. When he walks out that door, he doesn’t think about it,” Kurland says. “I don’t have that ability to turn it off. It’s a curse, but it’s also what makes us successful.”

Though his face graces billboards all over town, Kurland says he treasures privacy. He wears a baseball hat in public so people won’t recognize him.

 

 

Economics generally drive accident cases toward settlement.

Plaintiff legal fees usually rise from 33 to 40 percent if a case goes to trial. Depositions and expert testimony can easily cost tens of thousands of dollars.

Beyond that, Florida law penalizes clinging to unreasonable demands. If you fare poorly in court, you may have to pay the other side’s legal fees and costs.

“Many clients have a real interest in resolving cases quickly,” even at a discount, says Florida State University law professor Mark Spottswood. “Some clients don’t want to be cross-examined by a lawyer who will make you look like a liar.”

Still, a lawyer’s trial experience counts, Spottswood says. “There is a game of chicken that is going to happen,” he says. “The threat is: ‘If you don’t give me this, I will go to trial.’ If somebody doesn’t take cases to trial, that threat is not going to be as credible.”

Some high-advertising firms will accept almost any offer, while referring out difficult cases. Culpepper Kurland does not fit that pattern. The Florida Bar lists no complaints against them. Court records show they set hearings, conduct mediations, depose witnesses and schedule trials.

“This is all we have done, day in and day out, for 11 years,” Kurland says. “We have our fingers on the pulse.”

Morgan is skeptical. Going years without a trial “would have to mean that the insurance industry paid you fairly in every single case,” he says. “That is not possible. Insurance companies are not fair by business design.”

But if clients want to avoid court, Kurland counters, lawyers should not force the issue to burnish credentials.

“I will never sacrifice a current client to let everyone know that I will try cases.”

 

 

Startup firms generally do not go to court right away because cases can take several years to mature into trials. Now Culpepper Kurland’s pipeline holds hundreds of cases, so they have added a third family member, who brings significant civil trial experience to the firm.

Bruce Culpepper, 70, runs marathons and has no interest in retirement. He left a commercial practice at one of Florida’s largest firms 18 months ago to join his sons in the trenches of crashes, injuries and insurance adjustors.

He was lead attorney in the Sebring fender bender. The client underwent one operation for a herniated disc, needed another and faced $70,000 in medical bills. But the defense thought he was faking and never offered more than $10,000, Brad Culpepper says.

A defense doctor said the bad disc was an old ailment, unrelated to the accident. The client’s former boss said he bragged that a doctor’s son had hit him and he was going to make a big score.

Bruce Culpepper repeatedly caught the boss changing her story. But the jury did not award a dime and now the client may be on the hook for defense costs.

Bruce Culpepper, who once represented banks and hospitals, says injury cases are more personal. “By the time you go to trial, you love your client.”

His mouth tightened and face flushed as he left the courtroom with one brief assessment:

“This is why you are very, very careful about going to trial.”

 

As reported by Bloomberg, Hulk Hogan sues Laser Spine Institute

Hulk Hogan Wrestles With Laser Spine Center in Lawsuit

By David Armstrong - Jan 14, 2013

Professional wrestler Hulk Hogan claims in a medical malpractice lawsuit that a Florida-based surgery company that advertises on the Internet and television persuaded him to undergo a half-dozen “unnecessary and ineffective” spinal operations, worsening his back problems.

Hogan, whose real name is Terry G. Bollea, seeks $50 million for lost work opportunities during a 19-month period when he was a patient at Laser Spine Institute, according to the lawsuit filed today in Florida state court in Clearwater.

Professional Wrestler Hulk Hogan. Photographer: Paul Kane/Getty Images

The for-profit institute, based in Tampa, bills itself as one of the largest outpatient spine centers in the world, once touted Hogan as a success story in its marketing materials.

Hogan alleges his name was used without his permission and that in March 2011, his lawyer ordered the spine center to stop using his likeness. He said a quote attributed to him in a marketing brochure came from a photo he signed as a personal favor to a Laser Spine employee on the day of his first surgery.

In an e-mailed statement, the institute declined to discuss Hogan’s allegations. Laser Spine “cares about its patients and their outcomes, and is proud to have helped thousands of patients achieve a better quality of life,” the company said in the statement.

The wrestler said in his lawsuit that he became aware that the surgeries he underwent at Laser Spine may have been unnecessary or performed negligently after reading a 2011 Bloomberg News report that detailed complaints that the care offered at the center is expensive and ineffective.

High-Volume Centers

The Laser Spine Institute is one of a growing number of high-volume, doctor-owned surgery centers that recruit patients through sophisticated direct-marketing campaigns on Google Inc.’s search site and others. More recently, the center began a national television advertising campaign with spots on cable news operator CNN. It also conducts seminars in hotel meeting rooms across the country.

The center promises patients a less-invasive, technologically advanced option to major back surgery. It has to include outpatient facilities in Philadelphia; Scottsdale, Arizona, and Oklahoma City. Laser Spine’s website says it performs more than 400 surgeries per month and employs 450 people.

Hogan alleges he was unaware that the institute doctor who urged him to have surgery there also had a substantial ownership interest in the center. He said his health insurer was billed “multiple six figure sums” for the procedures.

Bloomberg reported the for-profit center generated a 34.3 percent profit margin from 2006 through 2009.

Stopped By

The wrestler was scheduled to have a more traditional back surgery — known as anterior inter-body fusion — at a local hospital when a friend told him he should consider the Laser Spine Institute, according to the lawsuit. The founder of the institute, James St. Louis, was a neighbor of Hogan’s on a street of multimillion-dollar homes in Belleair, Florida, near St. Petersburg.

Hogan says he stopped in at the Laser Spine Institute without an appointment and met with St. Louis. He said the doctor talked him out of getting surgery at the hospital and instead persuaded him to undergo less invasive measures at the outpatient center.

His complaint echoes the experience of several other patients interviewed by Bloomberg News as well as allegations made in more than a dozen other malpractice complaints against the facility or its doctors.

Short-Term Relief

Hogan says he underwent six procedures over the next 19 months, getting short-term relief of two to three weeks after each one. The temporary alleviation of symptoms was the result of doctors there using a laser to burn nerves that eventually regenerate, he says in the complaint.

He claims in the lawsuit that the procedures performed at Laser Spine Institute are of limited benefit and unable to correct his back problems, including scoliosis, or the abnormal curving of the spine; spondylolisthesis in which vertebrae slip out of position; and spinal stenosis, a condition in which the spinal column narrows.

Laser Spine’s marketing campaign is intended to “scare” patients away from more traditional treatments while failing to tell them that its procedures only temporarily treat symptoms, Hogan alleges in his complaint.

After his treatment at Laser Spine failed, Hogan eventually underwent the traditional fusion surgery performed by doctors at the University of South Florida. His lawsuit says he was able to return to his professional activities three months after the December 2010 fusion surgery.

The case is Terry G. Bollea v. Laser Spine Institute LLC, 13-389CI021, Circuit Court of Pinellas County (Clearwater, Florida).

 

A Defendant in a Car Accident is not Mandated to Provide Medical Records Without an “in camera” inspection to examine the relevance of the records to the accident

The Fourth DCA in James v. Veneziano, 37 Fla. L. Weekly D2338, Oct 3,2012 held that while a Defendant’a medical records showing  health problems in the form of a brain tumor causing memory issues may have to be examined by the court, they can’t be produced unless and until the court has an “in camera” inspection. The inspection is to determine and the parties to argue  the relevance of the records and to protect the Defendant’s constitutional and statutory privacy rights to the records.  Practice tip: Please carefully review any medical records of your insured/client BEFORE they are confronted with a deposition which may put them in a position to produce the same. Always file motions for protective order and objection to any subpoena issued to a client/insured.

Golden Gavel Award for Matthew Scarborough

Mr. Matthew Scarborough was recently awarded the Golden Gavel award by Westfield Insurance Company for his obtainment of a Dismissal for Fraud in a highly contested commercial liability matter.  The Plaintiff in the suit was claiming to be permanently and totally disabled and claimed damages in excess of 2 million dollars because of an automobile accident. The Plaintiff denied previous injury.  Discovery in the form of depositions led to obtainment of medical records showing this plaintiff had the same complaints just prior to our accident resulting in the ultimate dismissal of the case for fraud upon the court.

Doctors Warn That MRIs Are Often Overused

Here is a link to a New York Times article that provides confirmation that MRIs are overused and not clinically important unless correlated with symptoms.

Click here to view article

Article in Latest TBT Declares Tampa “Epicenter of Staged Car Accidents in Florida”

Page 16 of the August 17, 2011 edition of the Tampa Bay Times (TBT) has some persuading statistics and commentary about the issued of staged car accidents throughout Florida. It is certainly worth a read.

Click here to open article in new window

 

Investigating and Litigating Staged Motor Vehicle Accidents

As many insurance companies who write automobile policies in Florida know, Florida has become the number one state with respect to staged motor vehicle accidents. Scarborough Hull & Miller has had much success investigating and litigating such claims. Kevin Davis of the firm has most recently obtained a confession from an insured who was involved in one such staged car accident during examination under oath. Scarborough Hull & Miller is also currently litigating several actions for declaratory relief related to such suspicious claims. Mr. Davis also travels around the country teaching a course on how to investigate and litigate insurance fraud called “1800-STOP-FRAUD”. As always, we will come to you and provide this valuable seminar free of charge.

Florida Law Update

The Florida Third District Court of Appeal recently ruled in United Automobile Insurance Company vs. Ontero, an insured who assigns his personal injury protection (PIP) benefits to a provider does not have standing to later sue his or her insurer for those benefits. In Ontero, the plaintiff, Angel Ontero, suffered injury in an automobile accident. He subsequently sought treatment from a medical provider—assigning his PIP benefits to the clinic. His insurer, however, denied the clinic’s claim for payment. Angel Ontero, and not the clinic, sued for the benefits. The Third District held Ontero did not have standing—reasoning, “. . . an unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, and that the assignor has no right to make any claim on the contract once the assignment is complete, unless authorized to do so by the assignee.”

Florida Law Update

On April 14, 2010, the Governor signed into law Section 768.0755, Florida Statutes, which places the burden of proof on a plaintiff in a slip-and-fall case to prove actual or constructive knowledge by the premises owner or operator of the existence of the transitory foreign substance that caused the fall.  Under the new law the plaintiff may prove constructive knowledge by circumstantial evidence by showing that either the dangerous condition existed for such a length of time that, in exercise of ordinary care, the premises owner should have known about it, or the condition occurred with regularity and was therefore foreseeable.  Consequently, plaintiffs in slip-and-fall cases now face a tougher burden of proof.