WEST VIRGINIA RECORD

CHARLESTON – Attorneys from Virginia tried to sell a $1.7 million "life care plan" to West Virginia jurors on behalf of accident victim Ann Alderman of Pocahontas County, but jurors did not buy the plan.

Kanawha County jurors on Aug. 25 awarded $218,000 for medical bills, lost earnings and suffering in the past, but not a cent for her future.

Attorneys from Charlottesville, Va., had asked jurors to choose from four life care plans with prices starting at $1,690,671, but jurors rejected all four.

Alderman did not testify.

"They hid her," said Charleston attorney Andy Paternostro, who defended Asplundh Tree Experts of Willow Grove, Pa.

Jurors held Asplundh liable for Alderman's bills and lost earnings, but to Paternostro the rejection of the life care plan meant success for his client.

He said he would not call the verdict a compromise, but he said he detected a hint of an oddity called "defense verdict perversely expressed."

Other defendants gained complete victory. Jurors absolved two utilities, Allegheny Power of Greensburg, Pa., and Aquila of Kansas City, Mo., of all liability.

In 2001 a dead tree fell on Alderman's 1997 Chevy Blazer as she drove a mile north of Renick. Alderman suffered head injuries.

Her sister, Eleszabeth McNeel of Virginia, obtained a court order in Pocahontas County appointing her as Alderman's guardian. McNeel put Alderman in a nursing home.

In 2002 the Charlottesville firm of Michie, Hamlett, Lowry, Rasmussen & Tweel filed suit for McNeel.

The attorneys claimed the tree had been dead many years. They accused the utilities and Asplundh of negligence for letting it remain.

They sought $50 million in damages.

Later they added a claim against the owners of the property where the tree stood, Donald and Marilyn Brown.

Defense attorneys learned that prior to the accident Alderman had scored about 75 on a test of intelligence quotient, or IQ.

Defense attorneys then focused on determining the difference between her mental capacity before the accident and after it.

On its own, Asplundh argued that it lacked permission from the Browns to cut the tree. McNeel's attorneys argued Asplundh had a duty to remove it anyway.

Asplundh attorney Thomas Kleeh told Circuit Judge Louis Bloom that a property owner successfully sued the company for cutting a tree without permission.

In that case, Kleeh wrote, the West Virginia Supreme Court of Appeals ruled that Asplundh should limit its trimming to that which is necessary for safety and the continued use of power lines.

Last December, McNeel and the Browns settled for $340,000.

McNeel's attorneys took $103,333.50 in fees and an equal amount in costs. That left $133,333 for Alderman's care.

As trial approached, McNeel's attorneys told Bloom they would not call Alderman as a witness.

On Aug. 22, Aquila attorney Michael Fisher moved to call her as a witness. He wrote that no law limited the competency of low IQ witnesses.

He wrote that in a deposition Alderman appeared competent and, "…at no point unable to answer opposing counsel."

He wrote, "In determining the capacity and range of Ms. Alderman's neurological functioning it will be important for Ms. Alderman to be cross examined in front of a jury."

Bloom denied the motion.

By preventing her testimony, McNeel's attorneys may have weakened their case.

Paternostro said, "I think the biggest drawback in their case was not bringing her in."

Jurors not only rejected the life care plan but also shrank the amounts McNeel's attorneys claimed for past damages.

McNeel sought $234,022.11 for Alderman's medical bills. Jurors cut that to $165,000.

McNeel sought $82,265 for lost earnings in the past. Prior to the accident Alderman had worked as a certified nursing assistant. Jurors cut the amount to $52,000.

Jurors awarded nothing for future lost earnings. McNeel had asked for $110,079.

Jurors even refused to award damages for pain and suffering.

Paternostro said the decision violated West Virginia law requiring compensation for pain and suffering if jurors find a defendant liable for injuries.

He said the jurors took the verdict back and added $1,000 for pain and suffering.

Betsy Pierce acted as foreman of the jury.