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Actual client comments posted on Yahoo Local 02/17/2007.

Each case presents unique and specific factual and legal circumstances.

Past performance does not guarantee future performance.


“Do yourself a favor and use [Travis] Scott Eller as your attorney.”

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Personal Injury Case Against McDonald’s Survives Appeal

A woman filed a personal injury lawsuit against McDonald’s. McDonald’s served interrogatories (written questions). The woman’s attorney did not hear from her for a very long time, but told McDonald’s attorneys that he was aware she had not been well. In fact, it turned out she was in the hospital.

The court ordered that McDonald’s questions be answered within 40 days. Finally, her attorney was able to get in touch with her and get the information McDonald’s had requested, but not until about 17 days after the judge’s deadline.

The judge dismissed the case because of the missed deadline – in spite of the fact that the woman had been in the hospital, had ultimately provided the answers, and the trial date and crucial case schedule deadlines were months away.

The Court of Appeals ruled that the trial court made no findings whatsoever with respect to whether the failure to comply with the order compelling discovery responses was willful, whether McDonald’s was substantially prejudiced by the failure to comply, and whether any lesser sanction than summarily dismissing the personal injury complaint would suffice under the circumstances of the case and in light of the purposes of the discovery order and the length of time to trial. The Court reversed.[1]

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This was not one of our cases, but it illustrates the importance of not losing contact with your attorney – though in this case it was not the woman’s fault, which is why the Court of Appeals reversed.

By personal injury attorney Travis Scott Eller


[1] Howe v. McDonald’s, Inc., unpublished (No. 68315-2-1  September 23, 2013).


Suing John Doe

A tenant filed a personal injury lawsuit against his landlords one day before the statute of limitations was to run. The complaint named the landlord and “John Does 1-20,” but did not name the owners of the property, or describe facts that would make it clear the tenant intended to name the owner as well as the landlord.

Later, the tenant’s attorney attempted to add the owners of the property (which were not the same persons as the tenant’s landlord).  The statute of limitations had run in the meantime. The trial court granted the owners’ motion to dismiss. The tenant appealed.[1]

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Not in the Dictionary

A doctor misdiagnosed a woman’s ectopic pregnancy and removed the wrong Fallopian tube. The woman later had the other Fallopian tube removed in a second surgery. She sued. The jury returned a verdict of $71,795.53.

When the jury deliberated one juror looked up the word “negligence” in a dictionary (even though it is properly defined in the judge’s jury instructions) and reported the dictionary definition to other jurors. The judge granted the defense motion for a new trial. The woman appealed.[1]

lawblog disclaimer

The Court of Appeals agreed with the trial judge. The Court noted an earlier Washington Supreme Court decision in which essentially the same thing had happened. In that case, a jury looked up a legal term, and even used a legal dictionary. The dictionary definition differed from Washington law, so the court ordered a new trial. The Supreme Court upheld the result.

Perhaps the woman’s attorney in closing argument went over the definition of “negligence” in the judge’s instructions. In any event, these cases illustrate the vital importance of explaining the judge’s instructions in plain English in closing argument, “one of the more important tasks in closing.”[2]

[1] Cutuk v. Bray, unpublished (No. 68406-0-1, October 28, 2013). Available at (last accessed 11/11/2013.)

[2] Ball, David, David Ball on Damages §8-10 (3rd ed., NITA 2011).


As in Baseball, No Medical Malpractice “Team” Errors

The Washington Court of Appeals recently upheld the trial court in finding that in Washington medical malpractice law – as in baseball – there is no such thing as a “team” error.[1]

A man underwent a six-hour heart surgery. Later he developed compartment syndrome – a known and serious, if rare, complication from long surgery. The compartment syndrome was not initially diagnosed, and by the time discovered had caused extensive and permanent damage to the man’s leg, including death of muscle tissue.

The man sued the hospital for alleged failure to timely diagnose compartment syndrome.

At trial both sides produced experts who testified that the man was attended to post-surgery using a “team” approach. The surgeons and the physician assistants made rounds together twice per day. In the team approach, multiple surgeons see the patient post-surgery, regardless of who is primarily in charge.

According to the hospital, at any time a patient needs assistance the physician seeing the patient is well-aware of what’s going on. “So we basically assume everybody is our patient.” The hospital witness testified that the “team” “evaluate[s] patients in such a way that everybody gets a chance to have input.”

The patient’s expert testified that the care fell below the standard of care because of a lack of proper monitoring and a failure to rule out a known possible complication after surgery. When asked whom he was criticizing, the patient’s expert admitted that he “was not certain entirely as to who was to blame” but blamed the surgeon of record, even though the surgeon of record “wasn’t necessarily in charge of this patient at the time that the diagnosis was made.”  In fact, the surgeon of record was on the other side of the country post-surgery – and therefore was not supervising the “team.”

The patient failed to produce evidence of any particular person failing to meet the standard of care for their particular field of expertise. Instead, his attorney argued that the surgeon of record was negligent as team leader, and therefore the hospital was liable, too.

The trial judge explained in his ruling that “a team isn’t negligent,” and instead there needed “to be a negligent player on the team.” The patient’s attorneys having failed to produce proof of a negligent player on the team, the judge overturned the $583,000 jury verdict.

The Court of Appeals agreed with the trial judge, and upheld the result.

Medical malpractice is harder than it looks. Even when there are terrible results from medical care, the patient must prove that a particular health care provider breach the standard of care in their field of expertise, and that this breach of the standard of care caused the terrible result.

lawblog disclaimer

By personal injury attorney Travis Eller

[1] Grove v. Peacehealth St. Joseph Hospital, ___ Wn. App. ____ (No. 69556-8-1, October , 2013). Available at (Last accessed 11/04/13).


No Bond, No Trial

A resident of Turkey was injured in Washington while on a bicycle. He sued the Washington driver. The injured bicyclist got only a small award in arbitration, so he appealed and was given a trial date for a jury trial. The bicyclist then relocated back to Turkey indefinitely. When he failed to post a bond, the trial court dismissed his personal injury claim. He appealed. The Court of Appeals affirmed.

lawblog disclaimer

Because he appealed a mandatory arbitration award, the injured bicyclist was subject to paying attorney fees and costs unless he got a better award at trial. The bicyclist was out of the country, and did not know when he might return to Washington – making collecting on the potential fees and costs award difficult. Therefore, the trial court granted a defense motion for a bond, and ordered it be paid within 90 days. When that did not happen, the trial court dismissed the case. With the case dismissed, the injured bicyclist obviously did not improve the arbitration result, and the trial court awarded fees and costs of $8,755.

The Court of Appeals upheld the trial court, and also awarded additional fees for the appeal.[1]

As noted above, this was not one of our cases.

If you have been injured and would like a free personal injury cases analysis, please contact our firm.

By personal injury attorney Travis Eller

[1] Saylik v. Walker, unpublished (67951-1-I, September 23, 2013). Available at (last accessed 10/13/13).


Drunk Jaywalker Wins on Appeal

A drunk 70-year-old jaywalker sued the driver of a car who hit him. The jaywalker chose a poorly lit stretch of multi-lane highway to cross in the dark. Although testimony conflicted, it either was or had recently been raining. The driver who hit the jaywalking pedestrian never saw him. Read More


Elderly Woman Dies from Fall in Puddle of Water

An elderly woman fell in a puddle of water near an elevator in a hospital. She was taken to the ER, treated for a dislocated shoulder, and released. Family members found her unconscious the next morning. She died less than a week later from intracranial bleeding. Read More


Woman Falls, Sues Walmart

A woman fell in water about fifteen feet from the checkout in a Walmart store. She was injured. She sued. The trial court dismissed. She appealed.[1]  Read More


It’s Not My Job

A long-haul truck driver delivered a trailer to a Lowe’s store. Although she would sometimes open the trailer doors in the loading dock, unloading the trailers was not her job.

On this delivery, when she attempted to open the trailer doors she noticed that the cargo had shifted and some boxes pressed against the doors. She asked a Lowe’s receiving manager for help. She stood back as he opened the trailer doors. They discovered that a nylon rope held up some large boxes near the doors.

The Lowe’s manager started to cut through the rope holding the boxes in place. The truck driver expressed concern because she thought the boxes would fall once he cut through the rope. Read More


Toastmasters Speak-a-Thon

I gave a 15-minute excerpt from a generic personal injury closing argument in my advanced Toastmasters club’s recent speak-a-thon. I also gave an evaluation of another speaker’s presentation.994665_10202612604779016_1913691667_n

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