McCloskey, P.C.

Following are some of the successes we have achieved for our clients. Click on the list below or scroll down to read about some of the successes we have achieved for our clients. *

•Traumatic Brain Injury
•Guns Don't Hurt People - Lousy Gun Manufacturers Do!
•Jury Awards $1.78 Million For Unnecessary Surgery
•$2.5 Million Shock
•$4 Million Tub Spout
•Semen Says "Pay the Policy Limits"

*Past Performance is not necessarily indicative of future results.

Motorcyclist Without A Helmet Wins $5.6 Million Settlement
By Natalie White*

In spite of the comparative fault issues that stem from not wearing a helmet, a 19-year-old motorcyclist has settled an accident case for $5.6 million.

William Hajek sustained serious head injuries in a crash with a pizza delivery truck owned by Papa John's Pizza. "The biggest challenge for us in this case was that the physical evidence showed that the plaintiff was speeding and that he was not wearing his motorcycle helmet when he ran into the side of the pizza truck," said plaintiff's attorney Mark T. McCloskey. "We had to

overcome significant comparative fault." McCloskey played up the strong evidence of liability against the defendant as well as the severity of his client's injuries. He said coincidence and evidence that helmets provide limited safety benefits above 20 mph worked in his client's favor.

According to McCloskey, the closed-head injury, which left his client in a coma for more than three months, led to $400,000 in medical bills. He had experts lined up to tell jurors that Hajek's lost earning capacity would come to $2.5 million and his ongoing life care would total approximately $7.5 million.

William Hajek (left) sustained serious head injuries when he ran his motorcycle into the side of a delivery truck that had just run a stop sign.

"That was key in settling this case. We were able to show at mediation the magnitude of damages," McCloskey said. Several eyewitnesses said the driver of the delivery truck only tapped his brakes before running a stop sign into the intersection. By coincidence, these eyewitnesses were intently watching the intersection because the pizza driver had just asked them directions.

"Our argument was that this all could have been avoided if the driver had stopped at the stop sign," McCloskey said.

Reliable Witnesses

Hajek, a student at a community college, spent the afternoon with his brother and a group of friends near the Hajek home, driving his motorcycle around the neighborhood and hanging out. At about 7 p.m., Hajek decided to take a last spin on his Suzuki 600 motorcycle before putting it away for the night in the garage.

"The Biggest challenge for us was that the plaintiff was speeding and was not wearing his motorcycle helmet when he ran into the side of the pizza truck. We had to overcome significant comparative fault," said Mark Mccloskey.

Meanwhile, Tom Ellis was driving a Papa John's pizza truck on his way to a delivery. He saw the group - which included some of his friends - and stopped to ask directions. The young men said they didn't know the address, and Ellis continued to the intersection of Faber and Genesta, where he had a stop sign, but the drivers on Genesta did not.

"They watched him drive off at a high rate of speed and come to the intersection, touch his brakes and not come to a complete stop and roll through the stop sign," McCloskey said. "I'm assuming that he went off at such a high rate of speed to impress his friends. Then they hear Billy on his motorcycle

coming down Genesta. They're anticipating the two coming together and they're watching."

He said the indisputable testimony from the group that Ellis did not come to a full stop weighed heavily in the plaintiff's favor.

"It was a bizarre set of circumstances that there were all these witnesses just focused on that intersection," McCloskey said. "These kids were all standing around, ages from 16 to 20, just on the corner in front of the Hajek house discussing what they were going to do, deciding they wanted to go to a haunted house. The driver happens to know them, stops and takes off to the intersection, and they're all watching him."

As the pizza delivery truck ran the stop sign, Hajek wasn't able to stop his motorcycle in time and slammed into the right rear quarter panel of the truck.

Hajek wasn't wearing a helmet, suffered a serious head injury and spent three months in a coma. When he regained consciousness, he spent another three months in the hospital for rehabilitation. His physical and cognitive therapy continues to this day.

Although Hajek has returned home, McCloskey said he will never return to the person he was before the accident. He speaks slowly and has difficulty pronouncing words. Conversation is pained. His gait is labored and slow. He requires help to take a shower and use the bathroom. Although he has made a remarkable cognitive recovery, his motor skills have not proceeded as well and he is unlikely to ever hold a job or drive a car again.

Helmet Safety

In addition to not wearing a helmet, the plaintiff's attorney also had to deal with the fact that police reports showed Hajek was speeding at the time of the accident. The reports concluded that he was going at least 30 mph in a 25-mph zone, while the defendant was only going about 10 mph.

The allegation that Hajek was speeding was bolstered by the fact that the Suzuki was found in third gear after the accident and that witnesses in the neighborhood said kids were speeding around the streets that afternoon. One had even called police to complain.

McCloskey had witnesses to suggest that it was not Hajek who had speeded earlier, but another youth, but he believed this would be weak evidence at trial.

But in an odd twist, the speed issue proved to be a boon to the plaintiff's case, McCloskey said.

He said the defense was prepared to argue that a helmet would have prevented or significantly reduced the plaintiff's head injury, and also that his speeding contributed to the accident. But McCloskey argued that they couldn't have it both ways.

"Since helmets are only tested by the industry at speeds of 17 mph, the defense argument [about wearing a helmet] becomes less significant," he said. "We were going to argue that it wouldn't have made a difference if he was wearing a helmet at those speeds. The higher the speed, the less significant the helmet becomes."

Another key to achieving a substantial settlement was demonstrating significant life-care expenses, according to McCloskey.

"The largest part of the damages claim in a case such as this is life care, assistance with daily care," he said. "The defense is always ready to say the plaintiff is doing well with the help of his family without great cost."

He said a plaintiff's attorney must be ready to show that family should not be burdened with life-care responsibilities; that family relationships can be destroyed under those conditions and that the plaintiff will eventually end up alone and without help. The purpose of life care should be to make the plaintiff as independent as possible so that his quality of life is as good as it can be.

It was also important to show that this kind of head injury carries with it more than just physical deficits. McCloskey said attorneys in head-injury cases do not rely exclusively on medical experts, but also try to develop the case that even subtle cognitive deficits from the brain injury can cause substantial changes in the plaintiff's quality of life, his relationships with family and friends, and his outlook on life.

He said Hajek changed from an outgoing young man to an introvert, dependent on family and friends - from a carefree youth to a disabled person.

Although a jury might have delivered a larger verdict, McCloskey believed the settlement was advisable because it meant a sure award for his client.

"I think we had a 50/50 chance of doing better at trial, but there was always the likelihood that some of the jurors could see this as a kid out joyriding, that how and when he got hurt was just a coincidence, but that getting hurt was a certainty," he said. "If the jurors saw it that way, then we might end up with a compromise verdict. Considering all that, the settlement looked attractive."

*From the December 06, 2004 Lawyers Weekly USA.

Guns Don't Hurt People - Lousy Gun Manufacturers Do!

This 9mm pistol was so poorly made that a live round can be chambered without cocking the pistol. The photo above shows the gun on top of a blowup of the open chamber of that same pistol. What you see is the firing pin stuck into the side of a mis-fed live round. If this round had fed properly, it would have been driven forward by the firing pin, causing it to detonate prematurely (which is exactly what happened to the plaintiff).

In the prosecution of this action, we purchased five identical pistols and had them test-fired by our weapons expert. All five pistols broke within the first 300 shots (once blowing up on our expert) and had a misfire rate of over 50%. The manufacturer testified that that wasn't a defect! The jury thought otherwise and awarded the plaintiff the largest verdict in history for the kind of injury he sustained.

Jury Awards $1.78 Million For Unnecessary Surgery

A 29-year-old laborer who sustained a work-related neck injury received three different unnecessary neck surgeries at the hands of a Wood River, Illinois orthopedic surgeon. The plaintiff was left with four of the seven bones in his neck incompletely fused together and in constant pain. A fourth surgery by different doctors was required to properly fuse virtually his entire neck to repair the negligence done.

A Madison County, Illinois jury awarded this gentleman $1.78 million for his disability, disfigurement, lost wages and pain and suffering.

$2.5 Million Shock

Two young men from Washington County Missouri were driving down Highway 21 in their Toyota pickup truck when suddenly the truck veered to the right, striking the guardrail, overturning and ejecting both occupants. The driver suffered shoulder and arm injuries and the passenger sustained serious brain injury.

Several attorneys were unable to explain how or why this accident occurred; however, we were able to find the cause. The owner of the truck had recently had a front end alignment performed and the mechanic failed to reattach the frame end of this steering stabilizer, causing the vehicle to be able to steer right but not left.

The tire dealer where the work was performed paid $2.5 million in settlement.

$4 Million Tub Spout

A jury in St. Louis awarded $4 million to a 45-year-old woman who sustained a traumatic brain injury as a result of a defective bathtub spout. The tub spout diverter (the knob you pull up to divert the water to the shower head) automatically diverted.

The plaintiff turned on the bathtub, sat on the commode and waited for the tub to fill. All of a sudden, the shower turned itself on, spraying hot water on the plaintiff and causing her to jump up, slip, and fall, sustaining serious and life-changing brain injury. It should be noted that this woman did not even lose consciousness and yet sustained substantial brain injury.

This was reported to be the largest jury verdict ever for a no-loss-of-consciousness brain injury in the country!

Semen Says "Pay the Policy Limits"

A psychiatric patient whose treatment was being supervised by a case manager had claimed for years that the case manager had been raping her on a daily basis. Her psychiatrists and state mental officials believed her case manager when he said that her claims were merely hallucinations as a result of her mental illness.

The patient contacted numerous attorneys who refused to even consider her claims. When she called us, she said she had a baby bottle in her freezer where she had saved a semen sample for two years from the rapist. We immediately had DNA analysis performed by Cellmark (the same company from the O.J. Simpson case) which showed that it was in fact the case manager's semen.

Further investigation proved that the case manager who had the title of "Director of Psychiatric Services" was in fact no more than a janitor with a high school degree.

After a three week trial, the defendant tossed in their entire insurance policy.