2023 Advocate of the Year Award

Wayne Maffei, Cross Jenks Mercer & Maffei, LLP

Congratulations to Wayne Maffei for being selected by the WDC Board of Directors as the 2023 Advocate of the Year! The Advocate of the Year Award recognizes the member with the most defense work success of the prior calendar year. 

Wayne is a partner at Cross, Jenks, Mercer & Maffei, LLP. His practice focuses on personal injury law, civil litigation, insurance defense, and business litigation. Wayne obtained his undergraduate degree from Loyola University in Chicago and his law degree from the University of Wisconsin Law School. Wayne has served as President of the Sauk County Bar Association, President of the Wisconsin Defense Counsel (formerly Civil Trial Counsel of Wisconsin), and Chair of the Wisconsin Lawyers Fund for Client Protection. Additionally, Wayne has been elected as a member of the American Board of Trial Advocates (ABOTA), the Trial Law Institute, and the Diversity Law Institute. Wayne has an AV rating from Martindale-Hubbell.

Wayne is certified as a Civil Trial Specialist by the National Board of Trial Advocacy and is a Diplomate of the Court Practice Institute. He has also achieved Senior Fellow status in the Litigation Counsel of America, the Trial Lawyer Honorary Society. 

In 2022, Wayne tried a three-day jury trial in Sauk County for Rural Mutual Insurance Company. The primary issue in the case was whether the plaintiff’s lumbar laminectomy was related to an auto accident. The jury awarded total damages in an amount that was less than half the amount suggested by Wayne during closing arguments and less than 20% of the amount offered by the defense to settle the case pre-suit. A detailed summary of the case is set forth below.

Donna L. Morris, et al. v. Rural Mutual Insurance Company, et al.

Sauk County Case No. 17-CV-400

Trial Dates: March 8-10, 2022

Facts: The case arose out of a September 2015 motor vehicle accident. The defendant, 19-year-old Paul Zech, made a left turn in front of the plaintiff from a side street onto Highway 12 in Sauk City. After the accident, the plaintiff reported no injuries and declined an ambulance. There was minimal damage to her vehicle. She later went to the emergency room with complaints of neck pain and stiffness, but x-rays of her neck and back were normal. Approximately ten days after the accident, she returned to the doctor complaining of sacrum and coccyx pain. Again, x-rays of these areas were normal. Her doctors advised her to take off work for one week, and then to work half days for another ten days, which she did.

Plaintiff was 50 years old at the time of the accident. In March of 2016 (six months after the accident), she returned to the doctor with complaints of low back pain and pain shooting into her leg. She attended physical therapy and the pain resolved within a month. Although she experienced occasional flareups, the plaintiff had very little treatment until March of 2018. At that time, she complained of muscle tightness throughout the back and shooting pain down her left leg. An MRI revealed mild compression bilaterally at the L5 nerve root. She was referred to a neurosurgeon who did not think she was a “good fit” for surgery. The plaintiff got a second opinion and underwent an a L4-5 laminectomy and facetectomy in October of 2018 (three years after the accident), which significantly improved her left hip and leg pain.

Issues for Trial: Liability was not disputed. The only issues for trial were causation and damages.

Pretrial Motions: The case involved significant motion practice, including motions to compel and numerous contested motions in limine. Plaintiff’s counsel filed motions in limine attempting to prevent the defense from reading portions of plaintiff’s expert’s deposition into the record, restrict defendants’ expert’s testimony to only the opinions he offered at his deposition, and argued that the court should exclude photos of the vehicle damage because they were allegedly prejudicial and irrelevant. The court denied all three motions. Plaintiff’s attorney reasserted the motion to exclude the vehicle photos at least three times during trial, all to no avail.

Pretrial Settlement Discussions: At mediation, plaintiff’s lowest demand was $250,000 and defendant’s highest offer was $35,000. Plaintiff later submitted a statutory settlement offer of $160,000, which was not accepted. Prior to trial, defendants made a final offer of $90,000 to settle the case, which plaintiff declined. 

At Trial: The primary issue at trial was whether the accident—which appeared relatively minor—caused the need for an L4-5 laminectomy/facetectomy three years post-accident. Other than brief testimony from the insured driver, the defendants’ only witness was their retained medical expert, neurosurgeon Dr. Morris Marc Soriano, MD. Dr. Soriano related ten weeks of treatment to the accident and opined that the cause of the plaintiff’s ongoing low back pain was her pre-existing degenerative facet disease in the L4-5 region. By contrast, plaintiff’s treating experts testified that the 2015 accident accelerated plaintiff’s degenerative condition beyond its normal progression and necessitated the 2018 surgery. 

During closing arguments, plaintiff’s counsel asked for $62,796.56 in past medical expenses, $6,157.67 in past wage loss, and $100,000 in past pain, suffering, and disability. Wayne argued that only $5,522.01 in past medical expenses was related to the accident. Additionally, Wayne argued that plaintiff only sustained $1,183.76 in wage loss and suggested $25,000 as an appropriate award for the plaintiff’s past pain, suffering, and disability. 

Verdict: The jury awarded only $14,205 in total damages, which included $5,522 in past medical expenses, $1,183 in past wage loss, and $7,500 in past pain and suffering. Notably, the jury awarded less damages than the defense suggested in closing.

A jury poll after the trial revealed that Wayne was easily able to connect with the jurors. For example, the plaintiff argued that she was not able to do all the physical activities she once enjoyed and that she often felt aches and pains in the morning after engaging in physical activity. In response, Wayne said, “Welcome to the club.” This really resonated with the jurors because they all acknowledged that life brings aches and pains. The jurors also agreed that they liked Wayne’s approach and unanimously agreed that he was professional, concise, and easy to follow from voir dire through closing argument.

Nominated By: Ariella Schreiber, Rural Mutual Insurance Company