$11 million settlement; Discovery of hidden evidence leads insurer to settle

Action: Settlement

Date: April 18, 2024

Nature of claim: Dram shop violation leading to personal injury

Injuries alleged: Traumatic brain injury; fracture of C2 vertebra; disc injuries and multicolumn trauma from C2 through C5 vertebrae; comminuted fracture of the right humerus; closed fracture of the right scapula; fracture of the right glenoid; fracture of the right coracoid process; annular fissure at the L4-5 level; multiple rib fractures; injuries to both knees; impaired cognitive function and ability to sleep; post-traumatic stress disorder; anxiety; and depression

Amount: $11 million

Special or other damages: $204,935 in past medical expenses and $385,771 in future medical expenses

Case name: Withheld

Case no: Withheld

Court: Withheld

Judge(s), mediator(s) or arbitrator(s): Withheld

Most helpful expert: David Eagerton, Ph.D., of Spartanburg, forensic toxicologist

Attorneys: Mark Bringardner and Chris Dorsel of Bringardner Injury Law Firm, Charleston, and Bill Hunter and William Drought of Oliver Maner, Savannah, Georgia (for the plaintiff)

Plaintiff was crossing a street, walking in a marked crosswalk with the walk signal activated, on a night in August 2018 when she was struck by a drunken driver. Fleeing the collision, the driver parked a block away but walked back to the scene, where he was approached by police officers. He denied that he had struck plaintiff and that he was drunk; however, three officers saw that he was clearly under the influence, including slurring his words, smelling of alcohol, standing unsteadily and having urinated on himself.

After failing all field sobriety tests, he was charged with driving under the influence. However, the suspect refused a Breathalyzer test, and officers did not check his blood alcohol content. The only documented evidence of his level of intoxication was video from the officers’ cameras. Later, he pleaded guilty to a lesser charge, driving with unlawful alcohol concentration, and the plaintiff settled her claims against him in a separate action.

Plaintiff’s counsel found that the driver had been served alcohol at two restaurants. At the first, he had drinks before and with dinner; at the second, a lone sales receipt showed he was served one drink. However, it was apparent to plaintiff’s counsel that he had been served more drinks than at least one of the restaurants admitted.

In an extensive and lengthy discovery, plaintiff’s counsel invested five years trying to determine the quantity, amount and timing of alcohol consumption by the driver. The second restaurant maintained its one-drink stand and said that this was proved by an in-depth review of its point-of-sale system that was confirmed by a third-party information technology specialist.

Both restaurants moved for summary judgment and to exclude or limit testimony from plaintiff’s forensic toxicologist, who had calculated the driver’s approximate BAC at various times leading up to the hit-and-run and opined that the second restaurant knew or should have known that the driver was intoxicated when he was served more alcohol. The restaurants also claimed that the plaintiff was comparatively negligent for walking in a crosswalk at night wearing dark clothing.

During settlement talks about a week before trial, counsel for the second restaurant disclosed for the first time that the driver had purchased significantly more alcohol than was reflected on the one receipt. The restaurant produced credit card transactions showing that the drunken driver consumed three or four times as much alcohol there than previously disclosed and that the drinks were purchased on three bar tabs within about an hour before the driver left. That previously concealed evidence established that the restaurant violated dram shop statutes by serving the driver while he was intoxicated.

The concealed evidence was only produced after plaintiff’s counsel was going to be allowed to perform a forensic examination of the second restaurant’s point-of-sale system the following week. Plaintiff’s counsel served a time-sensitive policy limits settlement demand set to expire 30 minutes before a sanctions hearing he had requested the court to hold over the withheld evidence. The restaurant’s insurance carrier accepted the demand, and the case was fully settled before the hearing.