The POWER 30: Kathleen Flynn Peterson and Robert King

It is notable for several reasons.

First is the remarkable recovery the plaintiff, Matthew Thein, achieved by the time of the trial.  According to King, he sustained physical injuries and a traumatic brain injury. The former healed without residual disability and he returned to work seven months after the injury. At that time, his injury was not apparent. But his future may change.

King explained in an email to Minnesota Lawyer that the evidence was that the plaintiff would experience progressive cognitive decline with aging.

“Plaintiffs’ experts opined he was at significant risk for future development of numerous psychiatric and organic conditions, including stress-related illness, depression, anxiety, and mood-regulation difficulties. The experts also concluded he was at risk for the development of progressive cognitive decline as he goes through normal aging and, as a result, will not be able to work at the level he did before the injury, and attempts to do so may be counterproductive to his neuropsychological health,” King wrote.

King also wrote, “Defense counsel emphasized that future loss of earnings hadn’t been proved. But that is not the legal test. Rather, the question is whether there is reduced earning power. Our proof was that Mr. Thein was able to keep his job because he was a part owner of the business, and his partner and employees provided support the usual employer would not. If that were not the case, he would be lucky to be able to get a job as a material handler. Also, our proof was that he will become unable to work at all in the coming years because of neurocognitive decline resulting from his traumatic brain injury.”

Thus the court gave the following jury instruction, which is an addition to the Jury Instruction Guide template:

“The test is whether there is proof of an impairment in the power to earn in the future. Evidence that Matthew Thein has returned to work does not preclude an award for impairment of future earning capacity.”

The damages were about $2,052,858 for past damages; $7,140,000 for future damages, including $3,250,000 for lost earning capacity and $3,950 for Nikole Thein for loss of consortium.

Additionally, a critical ruling barred evidence that plaintiff was on a phone call and wearing a headset at the time of the accident, which is completely legal. The defense did not contest the motion, so there was no evidence that could lead the jury to find fault with the plaintiff. “It was a critical motion,” said Flynn Peterson.

Like this article? Gain access to all of our great content with a month-to-month subscription. Start your subscription.