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er 9.7 Assume that the settlement work-up in Exhibit 9-15 Is not successful. The case is not settled and must now go to S trial. Prepare a report for the attorney litigating the case of all the evidence that should be collected and considered for use at the trial. (a) List all possible witnesses your side (representing Joseph Smith) might call and give a summary of what their testi- mony is likely to be. (b) List all possible witnesses the other side (representing Dan Lamb) might call and give a summary of what their testi- mony is likely to be. (c) List all possible physical evidence your side should consider using and give a summary of what each item might establish. (d) List all possible physical evidence the other side is likely to consider using and give a summary of what each item might establish. (e) What further facts do you think need to be investigated?ort. Case demand package, settlement brochure. Exhibit 9-15 Draft of a Memorandum on a Proposed Settlement Work-Up Office Memorandum To: Mary Jones, Esq. From: Katherine Webb, Paralegal Date: October 12, 2015 Re: Joseph Smith vs. Dan Lamb Case Summary-Settlement Work-Up 1. Facts of Accident The accident occurred on September 6, 2013, in Orange, California. Joseph Smith was driving westbound on Chapman Avenue, stopped to make a left turn into a parking lot, and was rear-ended by the one-half-ton panel truck driven by Dan Lamb. The defendant driver, Mr. Lamb, was cited for violation of Vehicle Code Sections 21703 and 22350, following too close, and at an unsafe speed for conditions. Il. Injuries Injuries included severe cervical and lumbar sprain, superimposed over pre-existing, albeit asymptomatic, spondylolisthesis of pars interarticularis at L5-$1, with possible herniated nucleus pulposus either at or about the level of the spondylolisthesis; and contusion of right knee. Please see attached medical reports for further details. Ill. Medical Treatment Mr. Smith felt an almost immediate onset of pain in his head, neck, back, and right knee after the accident and believes that he may have lost consciousness momentarily. He was assisted from his car and taken by ambulance to the St. Joseph Hospital emergency room, where he was initially seen by his regular internist, Raymond Ross, M.D. Dr. Ross obtained orthopedic consultation with Brian A. Ewald, M.D., who reviewed the multiple X-rays taken in the emergency room and found them negative for fracture. Lumbar spine X-rays did reveal evidence of a spondylolisthesis defect at the pars interarticularis of L5, but this was not felt to represent acute injury. Dr. Ewald had Mr. Smith admitted to St. Joseph Hospital on the same day for further evaluation and observation.PART II The Skills of a Paralegal 432 on admission to the hospital, Mr. Smith was placed on complete bed rest, with a cervical collar and medication for pain. On Septem 10, neurological consultation was obtained with Michael H. Braniff, M.D., who, although he did not find any significant objective neurofiber abnormality, felt that there might be a herniated disc at L4-15, with possible contusion of the nerve roots. Drs. Ewald and Braniff followed Mr. Smith's progress throughout the remainder of his hospitalization. He was continued on bed reg physiotherapy, and medication, and fitted with a lumbosacral support. He was ultimately ambulated with crutcries and was discharged from hospital on September 25, 2013, with instructions to continue to rest and wear his cervical collar and back brace. On discharge from the hospital, Mr. Smith was taken by ambulance to the Sky Palm Motel in Orange, where his wife and children had been staying during his hospitalization. Arrangements were made for home physiotherapy and rental of a hospital bed. Mr. Smith was taken ambulance on the following day to his residence in Pacific Palisades. After returning home, Mr. Smith continued to suffer from headaches, neck pain, and severe pain in his lower back, with some radiation Into both legs, especially the right. He was totally confined to bed for at least two months following the accident, where he was cared for full wife. Daily physical therapy was administered by Beatrice Tasker, R.P.T. Mr. Smith continued to receive periodic outpatient care with Dr. Ewald. By the end of December 2013, Mr. smith was able to discontinue the use of his cervical collar and was able to walk, with difficulty, without crutches. At the time of his office visit with Dr. Ewald on December 21, he was noted to be having moderate neck discomfort, with increasingly severe low back pain. At the time, Dr. Ewald placed Mr. Smith on, gradually increasing set of Williams exercises and advised him to begin swimming as much as possible. Mr. Smith continued to be followed periodically by Dr. Ewald through March 2014, with gradual improvement noted. However, Mr. Smith continued to spend the majority of his time confined to his home and often to bed, using a cane whenever he went out. In addition, he suffered periodic severe flare-ups of low back pain, which would render him totally disabled and would necessitate total bed rest for several days at a time. During this period of time, Mr. Smith also experienced headaches and blurred vision, for which Dr. Ewald referred him to Robert N. Dunphy M.D. Dr. Dunphy advised that the symptoms were probably secondary to his other injuries and would most likely subside with time. On April 1, 2014, Mr. Smith consulted Dr. Ewald with complaints of increased back pain following an automobile ride to San Diego. Dr. Ewald's examination at that time revealed bilateral lumbar muscle spasm, with markedly decreased range of motion. Due to his concern about the extremely prolonged lumbar symptoms, and suspecting a possible central herniated nucleus pulposus, Dr. Ewald recommended that Mr. Smith undergo lumbar myelography. This was performed on an inpatient basis at St. Joseph Hospital on April 4, 2014, and reported to be within normal limits. Mr. Smith continued conservative treatment with Dr. Ewald, following the prescribed program of rest, medication, exercise, and daily physiotherapy administered by his wife. He was able to graduate out of his lumbosacral support by approximately October 2014, resuming use of the garment when he experienced severe flare-ups of low back pain. In his medical report dated January 2, 2015, Dr. Ewald stated that he expected a gradual resolution of lumbar symptomatology with time. However, in his subsequent report, dated January 10, 2015, Dr. Ewald noted that since his original report, Mr. Smith had suffered multiple repetitive episodes of low back pain, secondary to almost any increase of activity. At an office visit on February 25, Mr. Smith was reported to have localized his discomfort extremity well to the 15-$1 level, and range of motion was found to have decreased to approximately 75%. Since his examination in February, Dr. Ewald has discussed at length with both Mr. Smith and his wife the possibility of surgical intervention, consisting of lumbar stabilization (fusion) at the 15-$1 level, secondary to the spondylolisthesis present at that level. Dr. Ewald has advised them of the risks, complications, and alternatives with regard to consideration of surgical stabilization, noting that surgery would be followed by a -to-9-month period of rehabilitation, and further warning that even if the surgical procedure is carried out, there is no guarantee that Mr. Smith will be alleviated of all of his symptomatology. As stated in Dr. Ewald's medical report dated March 10, 2015, Mr. Smith is himself beginning to lean toward definite consideration with regard to surgery, although he is presently continuing with conservative management. Dr. Ewald recommends that in the event Mr. Smith does choose to undergo surgery, a repeat myelogram should be performed in order rule out, as much as possible, the presence of a herniated nucleus pulposus either above or at the level of the spondylolisthesis. IV. Residual Complaints Mr. Smith states that his neck injury has now largely resolved, although he does experience occasional neck pain and headaches However, he continues to suffer from constant severe pain in his low back, with some radiation of pain and numbness in the right leg. Mr. Smith notes that his low back pain is worse with cold weather and aggravated by prolonged sitting, walking, driving, or nearly any of activity. He finds that he must rest frequently and continues to follow a daily regimen of swimming, Williams exercises, pain medication, physiotherapy administered by his wife. He has also resumed the use of his lumbosacral brace. Mr. Smith was an extremely active person prior to the accident, accustomed to working 10 to 12 hours per day and engaging in act sports such as tennis. Since the accident, he has had to sell his business and restrict all activities to a minimum, because he has found " increase in activity will trigger a flare-up of low back pain so severe that he is totally incapacitated for several days at a time. As stated by Dr. Ewald, Mr. Smith is now seriously considering the possibility of surgical stabilization, despite the risks and complica involved. He has always viewed surgery as a last resort but is now beginning to realize that it may be his only alternative in view of his prolonged pain and disability. However, he currently intends to delay any definite decision until after the summer, during which time me to increase his swimming activity and see if he can gain any relief from his symptomatology.V. Specials CHAPTER 9 Investigation in a Law Office 433 ber copies of supporting documentation are attached hereto.) A Medical Southland Ambulance Service (9/6/13). ...... the st. Joseph Hospital (9/6/13-9/25/13) . Raymond R Ross, M.D. (Emergency Room 9/6/13) $ 2,937.12 Brian A. Ewald, M.D. (9/6/13-4/28/15 ) . ... $ 122,046.22 . . . . . . . ... Michael H. Braniff, M.D. (9/10/15-9/22/15 ) . $ 12,025.68 $ 5,604.94 wind Ambulance Service (9/25/15 ) . S 4.140.12 wind Ambulance Service (9/26/15) . $ 1,939.22 Beatrice Tasker, R.P.T. (9/21/13-10/22/13) . . . . . ... 1,989.71 Abbey Rents (Rental of hospital bed and trapeze bar, 9/25/13-11/25/13) . ........ $ 4,825.10 Allied Medical & Surgical Co. (Purchase of cane, 1/10/13) . . . . . . . . . 822.00 Rice Clinical Laboratories (2/1/14 ) ......... . . . . . . . . 50.45 Robert N. Dunphy, M.D. (2/1/14-4/15/14) ........... S 314.00 St Joseph Hospital X-rays and lab tests, 2/9/14) . $ 2,895.00 St Joseph Hospital (Inpatient myelography, 4/23/14-4/24/14) .. . . . . . . . .. $ 1,756.00 Medication . . . . . . . . . . . . . . . .. . . ..... $ 3,851.60 Total Medical Expenses . ...... $ 6,357.70 $ 171,554.86 B. Miscellaneous Family Expenses (During plaintiffs hospitalization, 9/6/13-9/25/15) 1. Sky Palm Motel (Lodging for wife and children). . . . . ... $ 6,050.50 2. Taxicab (9/6/13). .... S 62.45 Total Miscellaneous Expenses. . . . . .. $ 6,112.95 C. Business and Wage Loss At the time of the accident, Mr. Smith was employed as president and co-owner, with Mr. George Frost, of the Inter Science Institute, Inc, a medical laboratory in Los Angeles. As stated in the attached verification from a CPA, John Mamikunian, Mr. Smith was earning an annual salary of $48,000, plus automobile, expenses, and fringe benefits. In a telephone conversation with Mr. Smith on May 6, 1995, he advised that Inter Science Institute had grossed $512,000 in 2013 and $700,000 in 2014. He further confirmed that prior to the accident of September 6, 2013, both he and Mr. Frost had been approached on at least two to three different occasions by companies, including Revlon and a Canadian firm, offering substantial sums of money for purchase of the business. On the basis of the foregoing, both Mr. Smith and Mr. Frost place a conservative estimate of the value of the business at $2,000,000. Due to injuries sustained in the subject accident, Mr. Smith was unable to return to work or perform the necessary executive and managerial functions required in his position as president and part owner of the business. As a result, on or about October 26, 2013, while still totally incapacitated by his injuries, Mr. Smith was forced to sell his 50% stock interest in the Inter Science Institute for a total sum of $300,000. On the basis of the prior estimated value of the business at $2,000,000, Mr. Smith sustained a loss of $700,000 in the sale of his one-half interest in Inter Science Institute, Inc., in addition to the loss of an annual salary of $48,000, plus automobile, expenses, and fringe benefits. His salary loss is $84,000 based on an annual salary of $48,000 up to October 12, 2015. D. Totals . . . . . . . $ 171,554.86 Medical Expenses. ............ . .. ... $ 6,112.95 Miscellaneous Expenses. . . . . . . . . $ 700,000.00 Business Loss. ...... . . . . . . $ 84,000.00 . . . .. . . . . $ 961,667.81 Salary Loss......... Totals. ................. Adapted from Katherine Webb, Legal Assistant at Cartwright, Sucherman, Slobodin & Fowler, San Francisco, California