Facts

This case arises out of a single vehicle rollover accident which occurred in Germany on Nov. 16, 2003. At the time of the subject accident Plaintiff Clint Miller and Defendant Rocky Allen were U.S. Army helicopter pilots stationed in Germany awaiting deployment to Iraq. The accident occurred when Allen lost control of his 2002 Volkswagen Golf in which Miller was a front seat passenger. The vehicle rolled several times before coming to rest adjacent to a German highway.

Following the crash Miller was found unconscious thirty feet from the wreckage. Loss of consciousness was measured in terms of hours rather than minutes.

Miller was initially treated at a German civilian hospital prior to his transfer to a U.S. military hospital in Germany (Landstuhl Regional Medical Center). Several weeks post-accident Miller was transferred stateside to Walter Reed Army Medical Center and spent approximately six months at the brain injury rehabilitation unit at Palo Alto Veteran’s Administration Hospital in California.

Very shortly following the accident Allen’s insurance carrier, USAA, hired German engineers to examine the vehicle and determine whether Miller had been wearing his seatbelt at the time of the crash. The engineers conducted an investigation, including an inspection of the vehicle and seatbelt retention systems, and ultimately advised USAA and Miller’s family that Miller had not been properly seat belted. The vehicle, including the black box, were then destroyed in Germany though a portion of the Miller passenger seatbelt retention system was preserved.

It was undisputed that Miller sustained a severe cognitive brain injury resulting in structural brain changes shown on neurodiagnostic studies. The brain injury is permanent and manifests itself most obviously in difficulties with learning, retention and recall. Following the injury Miller was discharged from the U.S. Army as medically unfit and it is undisputed that he would not be capable of piloting military of civilian aircraft.

Defendant Allen admitted his negligence and that this negligence was a cause of the brain injury to Miller.

PLAINTIFF'S CONTENTIONS:
As negligence and causation were undisputed the only liability issue remaining was one of comparative negligence (alleged failure to wear seatbelt) while the only damages issue was nature and extent of future income loss.

The plaintiff contended that the destruction of the vehicle and component parts prior to the case precluded Plaintiff's experts from a complete opportunity (one enjoyed by Defendant's experts) to examine vital portions of the car. As such, Plaintiff would seek the complete exclusion of the seat belt defense in limine.

Even assuming the seatbelt defense was allowed, the brain injuries sustained by Miller were totally inconsistent with his being an unrestrained passenger in a multiple rollover accident. Neurodiagnostic studies (CT and MRI) were devoid of signs of any focal injury or even soft tissue swelling to the head. Miller’s brain injury was a diffuse axonal (shearing) injury entirely consistent with his having been properly seat belted but subjected to severe rotational forces during the rollover collision. Additionally, Miller being found unconscious thirty feet from the vehicle without substantial bruising or lacerations strongly indicated that he extricated himself from the wreck post-collision and was not ejected from the vehicle.

With the limited job opportunities available to Miller with his injury his total income loss (past and future) had a present cash value of $3.3 million.

DEFENDANT'S CONTENTIONS:
The defendant contended that Miller was not wearing his seatbelt at the time of the collision. Investigation and conclusions of retained German engineers confirmed this.

Immediately prior to trial there was discussion between plaintiff and defense counsel regarding the possible withdrawal of the seatbelt defense given the inability of the defense to sustain its burden that different more serious injuries resulted from Miller's failure to be properly restrained.

The defendant also contended that there were numerous vocational options available to Miller which would likely reduce his total loss of income (past and present) to the sum of $1.7 million present cash value.

Settlement Discussions

Defendant Allen was insured by USAA with a policy limit of 2.5 million Euros. The policy limit was demanded and the case resolved for 2.4 million Euros ($2.9 million U.S. based upon the conversion rate on the date of settlement) prior to trial.

Damages

Past & present LOE: $3.3 million present cash value.