By Paul Kaufman
Paul Kaufman, MD, JD, of the Keenan Law Firm inerviews this month’s Reptile Super Star is attorney Scott Distasio from Tampa, Florida. Scott, a solo practitioner, used the Reptile very effectively in a case involving a 14-year-old boy who was seriously injured in a snow skiing accident while on a church trip to a North Carolina ski resort. The case was Jesse James vs. Idlewild Baptist Church. The only defendant was the Idlewild Baptist Church in Tampa, one of the largest churches in the Southeastern United States.
Scott Distasio began his legal career as an insurance defense lawyer in 1990. He worked for ten years defending medical malpractice and nursing home cases. In 2000, his conscience prevailed and he left the dark side and started a plaintiff personal injury firm. In 2006, Scott went into solo practice. He handles a wide range of cases including slip and fall, automobile accidents, nursing home, medical malpractice, and premises liability. Scott noticed the increasingly difficult time plaintiff attorneys had as a result of tort reform and its effect on the jury pool over the last decade. He was still successful but believed he could get more for his cases if armed with some better techniques. Scott bought the Reptile book in 2009 as soon as it came out, as well as David Ball’s Damages and Rules of the Road. He made a serious study of the Reptile book, reading it and highlighting it several times. He immediately began applying the Reptile to his cases and has been uniformly successful.
The first Reptile case Scott tried was Jesse James vs. Idlewild Baptist Church. The plaintiff, Jesse James, was 14 years old when he went on a church ski trip to a North Carolina resort. The church provided no training or supervision for the young skier who had never been on the slopes before and was the youngest member of the trip. The ski resort, which was not a defendant, offered safety training for $10 per person but the church chose to buy lift tickets for the chaperones rather than buy the training. The neophyte skier was brought to the top of the mountain totally unprepared. He ended up on an expert slope and lost control at high speed, crashing into another skier. He severely fractured four lumbar vertebrae and had a six level fusion and a permanent foot drop.
The case had several hurdles to overcome. The church was well known in the community and had a good reputation. It was a Southern Baptist Church in the Bible Belt. The defense thought they would easily prevail because:
1. A jury would not find against a church.
2. A 14-year-old kid was old enough to know better than ski where he was not qualified to go.
3. Skiing is an inherently dangerous activity where risks are assumed.
Scott really “gets” the Reptile and applied it in all aspects of the case. He used focus groups to identify the type of juror who would be against his client and was able to identify and remove them at the trial. Florida has a six person jury and each side had three peremptory strikes. Scott was able to get many members of the panel disqualified for cause and was able to seat a fair jury. The Hillsborough County venue is middle of the road and juries typically would have two or three tort reformers out of the six; the Reptile voir dire process was an aid in eliminating them.
During discovery and trial Scott chose to use the Reptilian technique of “Swift-boating” and was very successful. He went right at the defenses perceived strengths by challenging whether kids should not get the same safety considerations on a church trip as any other type of trip, whether 14 year old kids needed special instruction and supervision because of the impulsive nature of adolescents, and whether a dangerous activity needed even more training and supervision than a safer activity.
Scott used the Reptile in all parts of the trial. He used the opening template to lay out his Rules. He spent about sixty hours just crafting the rules and the hard work paid off. The rules were centered around the safety of children and Scott spread the tentacles of danger by incorporating not only children on ski trips (perhaps unusual in Florida) but also children on camping, water sports, and canoe trips. The Reptilian rules were used with each witness and the defense witness either agreed with the rules or looked bad when they disagreed that safety for children was an important concept.
The plaintiff’s experts included a Neuropsychologist who explained the immature 14-year-old brain and the greater need for training and supervision, a ski instructor who explained the benefits of training, and treating health care providers including a Prosthetist who projected the impact of the foot drop out into the future. However, in typical Reptilian fashion, one of the best experts for the plaintiff was the defense ski expert who, on cross exam, stated skiing for kids is safer than soccer with proper training. One of the church pastors testified the church was not standing in the shoes of the parents on the trip, essentially conceding that a 14-year-old kid who by nature does not listen is “on his own.” The defense also used a spying “friend” to download photos from the plaintiff’s Facebook page showing him engaged in various activities. In another Swift boat maneuver Scott introduced the photos, had his client explain he was a kid trying to do what he could to be normal and his doctors said the activity was permissible. The plaintiff was also appropriately offended by the invasion of his privacy in having a supposed “friend” download his private photos and give them to the church to try and used them against him. The Reptilian “betrayal” element was an aid for the plaintiff.
The church had insurance policy limits of five million dollars. The defense attorney told the plaintiff’s father after his deposition that, “his kid would not get any money.” The only offer was $10,000. Scott and co-counsel, Damian Mallard from Tampa, tried the case for eight days in October 2010. Scott asked the jury to award four million dollars and, after a six hour deliberation, the jury awarded five million dollars. Scott credits the Reptile for the results. The headline could have been “Reptile Handles Church.” Scott has had other success using the Reptile including a recent $1.4 Million dollar verdict on a UM case (with $150,000 limits) where a mentally challenged 42-year-old man on a bicycle was hit by a car. Like most of the other Super Stars Scott reports no bad results with the Reptile. Congratulations Scott!!
NEXT BLOG: The Guts of Good Safety Rules by Don Keenan
REPTILE VERDICTS & SETTLEMENTS FROM PREVIOUS WEEK: $20,707,000
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