Atkins – “Wheaton Terrier v. Child”

Plaintiff, a 6-year-old girl, along with her mother, approached a dog, a Wheaten Terrier with no prior history of bad behavior, in a public park. As she bent down to pet him, the dog jumped up and badly bit the girl’s face. Surgical repair was performed that day, but the child was left with a serious facial scar.

The mother and child filed their complaint for the dog bite under California’s strict liability law. Her mother brought a claim for emotional distress. The case was in progress on the fourth anniversary of the dog bite when the child was 10-years-old.

Plaintiff’s plastic surgeon testified that four surgical revisions were necessary at a cost of $6,500.00 for each procedure, a total of $26,000.00.

The Kaiser Health Plan plastic surgeon, the treating physician, and Defendant’s plastic surgeon testified that only two surgical revisions were necessary. Defendant’s plastic surgeon testified that surgery would cost $5,000.00 for each procedure, a total of $10,000.00.

All of the plastic surgeons testified that the scar would never be completely removed.

Plaintiff called Defendant’s psychologist to testify concerning Plaintiffs’ psychological injuries. She testified that the child and her mother suffered from PTSD. The child would require a total of 112 sessions at different ages in order to cope with the scar on her face. She testified that her mother would require 25 sessions of counseling. Counseling fees could vary between $220.00/hour and $275.00/hour.

Plaintiff’s counsel asked the jury to award the child $2.5 million in general damages, and $56,800.00 in special damages. He asked the jury to award the mother $250,000.00 in general damages, and $6,875.00 in special damages.

Jury award: Child–$118,200.00. Mother–$25,125.00.

Plaintiffs pre-trial demand was $1 million for mother and child (total).and it was never reduced. Defendant’s pre-trial offer (the policy limits) was $300,000.00 for mother and child (total).

As we could not win this case due to the dog bite statute, our defense focused on attacking Plaintiffs’ damages. We argued that both our psychologist and Plaintiff’s psychologist (who did not testify) stated that the child’s psychological injury was greater due to the fact that therapy had been withheld for four years.

All three plastic surgeons stated that while it would be ideal to wait until the child is older to perform the surgical revisions, if she were suffering serious emotional issues as a result of daily interaction with other children (which her parents claimed), there was no reason to have delayed surgery after the scar was mature.

In discussions after the verdict, the jury was very critical of the delay in providing both psychological counseling and surgical care for the child.

Plaintiffs’ counsel never faltered with regard to his $1 million demand, believing that the policy limits were opened due to the carrier’s refusal to offer its policy limits earlier than it did. The policy limits offer which ultimately was made probably looks very good to him now. It is unfortunate that his minor client was not better served.

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