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FEATURED
CASES
Volume 3, Issue 2
September 2011
$12,200,000 RECOVERY – Premises Liability – Hazardous Condition – Fire breaks out in a restaurant
being used as a hurricane shelter – Failure to ensure the restaurant was in compliance with local fire codes and
ordinances – Second and third degree burns to over 50% of the body to minor plaintiff and her father . . . . . . . . . . 2
$10,260,000 VERDICT – Unsafe Workplace – Product Liability – Mixed liability action against employer
and manufacturer of defective coupling – Piece of equipment rotating over 1500 RPM separates from machinery and
strikes decedent – Wrongful death of 28-year-old married father of one . . . . . . . . . . . . . . . . . . . . . . . . . . 3
$3,400,000 VERDICT – Insurance Malpractice – Deceptive Trade Practices – Doctor sues after being denied
coverage for malpractice suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A monthly review of Texas
State and Federal civil jury
verdicts and settlements.
$2,911,958 VERDICT – Construction Site Negligence – Defendant crane operator contacts high voltage
electric lines at a construction site – Electrocution – Wrongful death of 36-year-old male laborer . . . . . . . . . . . . . 5
The Texas cases
summarized in detail
herein are obtained from
an ongoing monthly survey
of the State and Federal
courts in the state of Texas.
$1,478,500 VERDICT – Food Poisoning – Customers sue after outbreak of Salmonella at Texas IHOP – Pain
and suffering for effects of Salmonella poisoning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
$2,438,260 VERDICT – Medical Malpractice – Primary Care – Defendant prescribes narcotics to decedent
without conducting a physical, exam, or taking a medical history – Wrongful death of 54-year-old male from accidental
drug overdose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
$1,557,500 VERDICT – Motor Vehicle Negligence – Auto/Pedestrian Collision – Failure to properly supervise
and train independent contractor driver – Torn ligaments of the left knee – Permanent disability. . . . . . . . . . . . . 7
CONFIDENTIAL RECOVERY – Contract – Debris removal company sues for unpaid invoice connected to
Hurricane Ike clean-up – Unspecified amounts in unpaid fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ADDITIONAL
VERDICTS BY
CATEGORY
Professional Malpractice (1)
Emergency Department . . . . . . 8
Boating Negligence (1) . . . . . . . . 9
Motor Vehicle Negligence (10)
Intersection Collision . . . .
Left Turn Collision . . . . .
Rear End Collision . . . . .
Stopped Vehicle Collision . .
Civil Assault (1) . . . . . . . . . . . . 10
Negligent Truck Loading (2) . . . . . 18
Contract (2) . . . . . . . . . . . . . . 10
Premises Liability (2)
Fall Down . . . . . . . . . . . . 19
Hazardous Premises . . . . . . . 19
Age Discrimination (1) . . . . . . . . . 9
Dog Attack (2). . . . . . . . . . . . . 12
Dog Bite (1) . . . . . . . . . . . . . . 13
Employer’s Liability (1) . . . . . . . . 13
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14
15
15
17
Retaliatory Termination (1) . . . . . 20
Supplemental Verdict Digest . . . . 21
Copyright 2011 Jury Verdict Review Publications Inc.
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Featured Cases
$12,200,000 RECOVERY – PREMISES LIABILITY – HAZARDOUS CONDITION – FIRE
BREAKS OUT IN A RESTAURANT BEING USED AS A HURRICANE SHELTER – FAILURE
TO ENSURE THE RESTAURANT WAS IN COMPLIANCE WITH LOCAL FIRE CODES AND
ORDINANCES – SECOND AND THIRD DEGREE BURNS TO OVER 50% OF THE BODY TO
MINOR PLAINTIFF AND HER FATHER.
Harris County, TX
In this premises liability action, the plaintiffs were
seeking shelter in the defendant’s restaurant in
anticipation of a large hurricane when a fire
broke out in the room where the minor plaintiff
was sleeping. The father of the minor rushed into
the room and carried the minor out of the burning
room. Both suffered severe burns to over 50% of
their bodies. The plaintiff mother witnessed the
incident and suffers from severe emotional
distress.
On September 13, 2008, the male plaintiff, a manager
at the defendant restaurant, decided to bring his family
to the restaurant to ride out Hurricane Ike that was fast
approaching the Houston area. A little after midnight the
plaintiff mother went to the second level of the restaurant where her daughter was sleeping and saw smoke
coming out from under the door the “map room”. As
she started yelling fire and heading to the door of the
room, her husband pushed her out of the way and
dove into the room to rescue his four-year-old daughter.
The male plaintiff found his daughter already severely
burned standing on the floor; he grabbed her and dove
out of the room.
The plaintiffs were rushed to separate hospitals and
spent the next few months hospitalized for treatment of
second and third degree burns to over 50% of their
bodies. Additionally, all three plaintiffs suffered severe
emotional distress and post-traumatic stress disorder.
The plaintiffs contended that the restaurant was negligent in failing to ensure that the restaurant was safe from
fire hazards, failing to ensure that the building was in
compliance with local fire codes and failing to warn the
plaintiffs of the unsafe condition at the restaurant.
The defendant restaurant brought in an additional defendant, the defendant construction company that performed additions and renovations in 1998. The
restaurant alleged that the defendant construction
company did not install a sprinkler system as is required
in restaurants in order to comply with fire codes and or-
Volume 3, Issue 2, September 2011
dinances. The construction company denied all negligence and alleged that the fire was caused when a
transformer blew due to the hurricane.
Prior to the trial, the parties engaged in a settlement
conference wherein the defendants and the plaintiffs
entered into a partial settlement with a high/low agreement. The defendants then agreed to pay ten million
dollars to discharge the low part of the agreement. Of
the ten million, slightly over six million was awarded to
the minor and the remaining to the plaintiff father and
his wife. The case then proceeded to trial and the parties settled the minor’s claim in the middle of the trial for
an additional $2,200,000.
REFERENCE
James and Denise Koonce Individually and as next
friend of Katharine M. Koonce a minor vs. Brennans of
Houston and Gamma Construction Company. Case
no. 200902183; Judge Mike Engelhart, 02-09-11.
Attorney for plaintiff: Levi Glenn McCathern of
McCathern Mooty L.L.P in Houston, TX. Attorneys for
defendant: Randy G. Donato in Houston, TX, and H.
Dwayne Newton of Newton, Jones & Spaeth in
Houston, TX.
COMMENTARY
This was an emotional case as the male plaintiff was employed
with the defendant restaurant at the time of the fire and had convinced his wife and daughter that they were safer riding out the
hurricane at the restaurant than staying at home. Consequently,
the father’s emotional distress and guilt were major factors contributing to his list of physical injuries.
Furthermore, the male plaintiff and the defendant restaurant
owners were both emotional at the total devastation of the restaurant as it had been a Houston Texas fine dining destination for
over 40 years. Interestingly the male plaintiff is still employed with
the restaurant and helped in the restoration process creating an all
new wine list for the grand reopening which occurred on February
16, 2010.
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$10,260,000 VERDICT – UNSAFE WORKPLACE –
PRODUCT LIABILITY – MIXED LIABILITY ACTION
AGAINST EMPLOYER AND MANUFACTURER OF
DEFECTIVE COUPLING – PIECE OF EQUIPMENT
ROTATING OVER 1500 RPMS SEPARATES FROM
MACHINERY AND STRIKES DECEDENT – WRONGFUL
DEATH OF 28-YEAR-OLD MARRIED FATHER OF ONE.
Harris County, TX
In this mixed liability action the estate of the decedent alleged that
the decedent’s employer was negligent for failing to provide a safe
work environment. Additionally, they alleged that the second
defendant, an electrical supply company, was negligent for
providing a defective coupling. The decedent was at work involved
in testing components for a wind turbine when the components
failed and rapidly flew off the main machinery striking the decedent
and causing fatal injuries. Both defendants denied that they were
negligent and blamed the other defendant and the plaintiff’s
decedent for the incident.
On July 16, 2007, the decedent was employed by the defendant electrical
company and was involved in testing and balancing a drive train on a generator that was being used as a component for a wind turbine. Both defendant electrical companies were involved in the design, manufacture and
testing of the generator. While the testing was being conducted, a coupling
failed catastrophically and pieces of the failed coupling rotating at over
1500 RPMs flew off the generator and struck the decedent in the abdomen
area causing fatal injuries.
The estate of the decedent claimed that the defendant employer was consciously indifferent to the safety and welfare of the decedent and failed to
provide adequate guards and safety devices in the workplace. The allegations of negligence against the second defendant electrical company consisted of providing a defective coupling, allowing the coupling to be
improperly installed and failing to assure that safety precautions were taken.
Each defendant denied all allegations of negligence and placed the
blame for the incident on the other and the decedent.
The jury found against the defendant employer only, finding them 100% liable for the accident, resulting in the death of the decedent.
REFERENCE
Plaintiff’s engineering experts: Don Russell, PhD from College Station,
TX, and John E. Slater from Houston, TX. Plaintiff’s industrial safety
expert: Way Johnston from The Woodlands, TX. Defendant’s accounting
expert: Thomas Glass from Austin, TX. Defendant’s engineering expert:
Stuart Brown, Phd from Needham, MA. Defendant’s neurology expert:
Dr. Raymond Martin from Houston, TX.
Casey Marie Bice, Individually and Next Friend of Ryder Heath Bice, a Minor
and also Heirs at Law of Heath Alan Bice, Deceased, and Diann Bice vs.
Teco-Westinghouse Motor Company; General Electric Company. Case no.
200856581; Judge Jeff Shadwick, 05-10-11.
Attorney for plaintiff: Wayne Fisher of Fisher, Boyd, Brown & Huguenard
in Houston, TX. Attorneys for defendant: Gaye Rothman of Brown
McCarrol in Austin, TX, and Brett Hermes Payne of Walters Balido and
Crain in Austin, TX.
Postmaster: Send address changes to:
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Avenue, Springfield, NJ 07081.
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COMMENTARY
The jury in this case was instructed to determine whether or not
the defendants were involved in a joint enterprise. Under Texas
law, if the jury found the defendants were engaged in a joint enterprise the defendants would have both been vicariously liable for
the negligence the jury apportioned to either defendant. In this
case, the jury determined that the defendants were not involved in
a joint enterprise and found that decedent’s employer only was
negligent for failing to use ordinary care to provide a safe workplace. Interestingly, the jury found that the defendant employer
was not grossly negligent and did not create an extreme degree of
risk or potential of harm to the decedent or others. The jury
awarded the decedent’s wife a little over $5 million and his minor
son a little over $4 million. The rest went to the decedent’s parents.
$3,400,000 VERDICT – INSURANCE MALPRACTICE – DECEPTIVE TRADE PRACTICES –
DOCTOR SUES AFTER BEING DENIED COVERAGE FOR MALPRACTICE SUIT.
Dallas County, TX
In this matter, a Dallas patient sued his
physician’s insurance carrier for failure to provide
coverage in connection with a malpractice lawsuit.
The defendant insurance company denied
liability, asserting that the doctor was denied
coverage because of two clauses in his contract
regarding the report of potential legal actions.
In 2008, Dr. Richard T. was named as a defendant in
the multi-million dollar malpractice suit “Thomas
Colombrito, et al. vs. Lutfi Basatneh, M.D., et al.” (Dallas
County, DC-08-04673). In that matter, Dr. T. was named
as a party for his attending to the patient Thomas C. on
an overnight hospital shift, in substitute for the plaintiff’s
primary care physician. Thomas C. was able to obtain a
multi-million verdict malpractice verdict against both
doctors in that matter, including approximately
$750,000 in damages for 4% liability against Dr. T.
With respect to that suit, the defendant Dr. T.’s insurer,
Medicus Insurance Group, supplied an attorney, but refused to provide insurance coverage for Dr. T. or participate in settlement negotiations. Medicus denied Dr. T.’s
claim, asserting that the doctor’s “Claims Made” policy
was inapplicable to Dr. T. because of two clauses within
the policy. Medicus utilized these clauses and instructed
Dr. T. that he would not be covered because Dr. T.
should have foreseen over eight months earlier that he
would be sued.
The plaintiff filed suit against Medicus in the 14th District
Court of Dallas County for multiple acts including
breach of contract, deceptive trade practices, and deceptive insurance practices. The plaintiff sought damages sustained due to Medicus’s unfair and deceptive
practices, misrepresentation to Dr. T. regarding a material fact or policy provision related to his coverage, misrepresentation of the quality and standard of Medicus’s
indemnification practices, and refusal to indemnify or
participate in settlement negotiations. The defendant
denied liability. Prior to trial, the court ruled that as a
matter of law, Medicus had owed coverage to Dr. T.
and that Medicus had therefore breached its contract
to the doctor.
A two day trial proceeded on the remaining claims of
deception and misrepresentation, as well as damages
for the breach of contract claim. The plaintiff argued
that a doctor who has purchased Claims Made insurance has a reasonable expectation of coverage. The
Volume 3, Issue 2, September 2011
defendant argued that denial of coverage occurred for
failure to report a “medical incident” or potential lawsuit
in a timely manner. The plaintiff asserted that a doctor
doing so would in some cases require an unreasonable
degree of foresight respecting potential lawsuits and
even risk non-renewal of a policy for such over-reporting.
In the underlying case, the doctor was an overnight physician with no knowledge of the patient’s paralysis. The
plaintiff also showed that the Medicus-assigned attorney
in that matter stated in correspondence that there was
zero liability on Dr. T. This, the plaintiff argued, complicated the defendant’s assertion that Dr. T. could have a
reasonable expectation of lawsuit. The zero liability opinion was asserted by Medicus as evidence that their failure to enter settlement negotiations was not
unreasonable.
The jury returned a $3.4 million verdict for the plaintiff,
finding that Medicus had indeed committed unfair and
deceptive practices and misrepresentations.
REFERENCE
Thomas Colombrito vs. Medicus Insurance Company.
Case no. DC-10-02692; Judge Eric V. Moye, 08-17-11.
Attorneys for plaintiff: Stephen Barnes and Jack E.
McGehee of McGehee, Chang, Barnes in Houston,
TX. Attorneys for defendant: Michael W. Huddleston
of Shannon, Gracey, Ratliff & Miller, LLP, and Thomas
W. Fee of Fee, Smith, Sharp & Vitullo. Attorney for
defendant: Devon D. Sharp.
COMMENTARY
This suit came as a result of an agreement between the plaintiff
and Dr. T. to assign the physician’s denial of coverage lawsuit to
the plaintiff. Action against the doctor was then delayed, pending
the outcome of the Medicus suit. If recovery is not achieved after final judgment in this case, the agreement will hold Dr. T. liable for
his portion of the underlying lawsuit damages.
The plaintiff’s counsel drew attention to the relevant clause in
Medicus’s insurance contract, which plaintiff’s counsel argued contained ambiguous words and phrases that could be used to arbitrarily and wrongly deny indemnity. The clause asserted that the
physician must “timely” report a “medical incident” wherein they
could “reasonably foresee being sued”. The plaintiff argued that
this clause placed an unreasonable expectation on the doctor to act
as a risk assessor in addition to acting as a physician.
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$2,911,958 VERDICT – CONSTRUCTION SITE NEGLIGENCE – DEFENDANT CRANE
OPERATOR CONTACTS HIGH VOLTAGE ELECTRIC LINES AT A CONSTRUCTION SITE –
ELECTROCUTION – WRONGFUL DEATH OF 36-YEAR-OLD MALE LABORER.
Harris County, TX
REFERENCE
In this construction site negligence case, the estate
of the decedent alleged that multiple defendants
were responsible for causing the wrongful death
of the decedent. The decedent was at work on a
construction site and was standing near a crane
that was moving rebar when the crane contacted
a power line, causing an electrical arc which
occurred where the decedent was located,
electrocuting him. All of the defendants denied
liability in causing the accident and blamed the
accident on the other defendants and the
plaintiff’s decedent.
Plaintiff’s human factors and safety expert: Way
Johnston from The Woodlands, TX. Defendant’s
construction safety expert: Gregory Stridwick from
Coppell, TX. Defendant’s OSHA expert: James
Knorpp from Keller, TX.
On March 23, 2007, the plaintiff’s decedent was working
on a construction site in Dallas Texas. He was a construction laborer on a site that was drilling holes for foundation piers in order to build a homeless shelter. On that
day, a 100 ton hydraulic crane, which was owned and
operated by the defendant crane company, came in
contact with a high voltage power line creating an arc
where the decedent was standing and the decedent
was electrocuted. At the time of the incident, the decedent was standing next to the crane in the course and
scope of his employment with the general contractor of
the site.
The estate of the decedent sued the defendant general
contractor, the defendant crane company and crane
operator and the defendant drilling company. The estate alleged that the defendant general contractor was
negligent in failing to properly supervise the decedent
while he was at work and failing to educate and train
the decedent. The estate also alleged that they were
negligent in failing to maintain a minimum distance between the crane and the high voltage lines. Additionally,
the estate alleged that the defendant drilling company
failed to ensure that the electrical lines were de-energized. All of the defendants denied all liability and argued that the decedent was negligent in failing to
follow proper safety procedures.
Estate of Michael Thompson by Krystal Thompson vs.
Rent a Crane of Oklahoma, Michael Roger Loper, Okie
Foundation Drilling Company, and Satterfield and
Pontikes Construction, Inc. Case no. 200903503; Judge
Patricia Kerrigan, 05-09-11.
Attorney for plaintiff: Wayne Fisher of Fisher, Boyd,
Brown & Huguenard in Houston, TX. Attorney for
defendant: Malcolm Guy Renwick in Carrollton, TX.
Attorney for defendant: Karl Wayne Koen in Dallas,
TX. Attorney for defendant: Andrew Todd McKinney,
IV of Mckinney and Cooper in Houston, TX.
COMMENTARY
The jury in this construction site negligence case found each defendant, as well as the plaintiff’s decedent, to be negligent in causing this fatal electrical incident. The jury apportioned the majority
of the liability to the defendant drilling company as the jury determined that the defendant crane operator was a borrowed servant
of the drilling company. Under Texas law this makes the defendant
drilling company responsible for the defendant crane operator’s
percentage of negligence, which the jury determined to be 56%.
The rest of the liability was attributed to the defendant drilling
company individually at 13%, the defendant crane company at
13%, the decedent at 13% and the decedent’s employer at 5%.
The defendant drilling company has appealed the verdict and
final judgment arguing that the plaintiff’s assertion that the defendant crane operator was a borrowed servant of the defendant drilling company was against the great weight of evidence presented at
the trial. The drilling company is arguing that simply because they
are the organizing entity on the site does not mean that everyone
who works on the site is a borrowed servant of that organizing entity. The post-trial motions of this case are on-going.
The jury found for the estate and awarded
$2,911,957.61
$1,478,500 VERDICT – FOOD POISONING – CUSTOMERS SUE AFTER OUTBREAK OF
SALMONELLA AT TEXAS IHOP – PAIN AND SUFFERING FOR EFFECTS OF SALMONELLA
POISONING.
Potter County, TX
The two dozen victims in this suit were the victims
of a 2008 salmonella outbreak at the
International House of Pancakes in Amarillo,
Texas. Ten plaintiffs went to trial with their claims.
In 2008 the plaintiffs in this matter were customers at the
Amarillo, Texas International House of Pancakes located
on Interstate 40 and South Western Street. In the course
of three separate outbreaks beginning in June of that
year, the plaintiffs were exposed to salmonella toxin, resulting in a range of health concerns from severe ab-
dominal pain to complications of severe diarrhea. Several of the plaintiffs were elderly women, resulting in
serious health complications due to diarrhea. On detection of each of the three outbreaks, the IHOP was
closed. The plaintiffs in this matter were 24 of the over
125 reported cases of salmonella in the region
surrounding the IHOP.
24 plaintiffs filed suit in the 320th District Court of Potter
County, Texas. The plaintiffs included those alleging salmonella poisoning as a result of their patronage of the
defendant Amarillo International House of Pancakes, as
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6
FEATURED CASES
well as family members. The plaintiffs argued for the defendant’s strict liability and negligence on violations of
health and safety codes, personal injury and other actions. Ten of the 24 complaints went to trial.
Over the three days of trial, the plaintiffs brought testimony from plaintiffs and evidence from treating physicians. The plaintiffs described the varying consequences
of their exposure to the salmonella toxin, including stories
of up to ten days of abdominal pain (which was compared to giving birth by some women) and “explosive”
diarrhea. Judge Emerson ordered that witnesses wait
outside when not testifying, so as to prevent witnesses
from hearing each others’ stories.
The defense stipulated to liability and medical bills only
three days prior to trial, but objected to some medical
as not related during trial. The defense brought toxicology expert Dr. Patricia Rosen, who testified as to how
long this particular strain of salmonella toxin remains in
the body. Defense disputed the extent of damages, arguing that their symptoms, given the strain they were afflicted with, would have lasted between two to four days
and been equivalent to flu like symptoms. An executive
for the defendant corporation also testified when required to take the stand by plaintiff’s counsel.
After four hours deliberation, the jury returned a ten to
two verdict of over $1.4 million for the plaintiffs, finding
IHOP responsible for the damages caused by its sanitary
practices. The jury awarded $140,000 in pain and suffering and physical impairment damages per plaintiff, as
well as $75,000 in total medical bills and $4,000 in lost
wages amongst the ten plaintiffs. The two dissenting jurors stated after trial that their point of dispute was the
damages amount, not the issue of liability.
REFERENCE
Defendant’s Toxicology expert: Patricia Rosen from
Austin, TX.
Wanda Briscoe, et al. vs. ACG Texas, LP, DBA International House of Pancakes, et al. Case no. 98,563-B;
Judge Don Emerson, 08-31-11.
Attorneys for plaintiffs: D. Dean Boyd of Hunter
Kalinke & Boyd in Amarillo, TX, and Channy Wood of
Wood Law Firm LLP in Amarillo, TX. Attorney for
defendant: Thomas Farris in Amarillo, TX.
COMMENTARY
Plaintiff’s counsel Dean Boyd cited many issues with the defense’s handling of the case, including the aggressive treatment of
elderly witnesses, and other factors. Counsel stated that defense argued ambiguously against their liability at trial after conceding liability in years prior. Further, Dr. Rosen’s characterization of her
approximate earnings as a report writer and expert witness as “not
that much” to a local jury was also cited as potentially alienating.
Defense counsel also argued that the damages for pain and suffering (the bulk of recovery sought) should be comparable to a twoweek vacation at Palo Duro Canyon. Mr. Boyd cited these factors as
likely as having the effect of losing the jury’s support.
Plaintiff’s counsel has pointed out that this is very likely the
largest pain and suffering verdict in the Texas panhandle ever, a
conservative area with respect to tort verdicts.
$2,438,260 VERDICT – MEDICAL MALPRACTICE – PRIMARY CARE – DEFENDANT
PRESCRIBES NARCOTICS TO DECEDENT WITHOUT CONDUCTING A PHYSICAL, EXAM,
OR TAKING A MEDICAL HISTORY – WRONGFUL DEATH OF 54-YEAR-OLD MALE FROM
ACCIDENTAL DRUG OVERDOSE.
Harris County, TX
In this medical malpractice case, the estate of the
decedent alleged that the defendant doctor and
business partners were running an illegal pill mill
and were routinely over-prescribing narcotic
medication. The decedent presented to the
defendant doctor and was prescribed the drugs
hydrocodone, carisoprodol and alprazolam. Two
days later, the decedent was found dead in his
bed.
On July 5, 2007 the decedent presented to the defendant clinic and saw the defendant doctor with complaints of various body pains. There were no notes made
in the medical record that a physical exam was performed or that a medical history was taken. On July, 7,
2007, the decedent was found dead in his bed. The autopsy report revealed the decedent died of an accidental overdose of the prescribed narcotics. The
decedent is survived by his mother and three minor
children.
The estate of the decedent alleged that the defendants
were negligent in prescribing narcotics without medical
necessity and in running a pill mill where they routinely
Volume 3, Issue 2, September 2011
and negligently prescribed narcotic medications without
proper exam of the patients in exchange for money.
The defendant denied all allegations of negligence and
contended that the decedent failed to take the
narcotics as prescribed.
The jury found that the defendant doctor, the clinic and
the partners that made up the clinic were all negligent.
They apportioned 65% liability to the defendant doctor,
35% liability to the clinic and 5% liability to the partners.
The jury awarded the estate a total of $2,438,260.
REFERENCE
Plaintiff’s family physician expert: Michael
Dominguez from San Antonio, TX.
Estate of Michael Skorpenske by Augusta Jackson vs.
Maurice Conte M.D., Family Medi Clinic and J. Moore
Solutions. Case no. 200941648; Judge Reece Rondon,
01-14-11.
Attorney for plaintiff: Tommy Hastings of Hastings
Law Office in Houston, TX. Attorney for defendant:
Don E. Lewis in Houston, TX.
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$1,557,500 VERDICT – MOTOR VEHICLE NEGLIGENCE – AUTO/PEDESTRIAN
COLLISION – FAILURE TO PROPERLY SUPERVISE AND TRAIN INDEPENDENT
CONTRACTOR DRIVER – TORN LIGAMENTS OF THE LEFT KNEE – PERMANENT
DISABILITY.
Harris County, TX
In this auto/pedestrian negligence case, the
plaintiff sued the defendant company alleging
that the company was negligent for failing to train
and supervise one of its independent contractors
who was performing duties as a driver for the
company. The independent contractor and the
plaintiff became involved in a heated discussion
when the defendant refused to allow the plaintiff
to make repairs to the defendant company’s
vehicle. The defendant then attempted to leave
the repair yard and when the plaintiff tried to stop
him, the driver gunned his vehicle toward the
plaintiff, striking him and causing injury to the
plaintiff. The defendant denied that it was liable
for the acts of the defendant driver.
On August 29, 2008, the plaintiff was making inspections
to a vehicle owned by the defendant company which
was being operated by the defendant driver who was
an independent contractor performing work for the defendant company. The plaintiff found a problem with
the chassis of the vehicle and told the defendant that
he would have to leave it at the yard for repairs. The defendant argued with the plaintiff telling him that he
would not leave the chassis because he could not afford the repairs which the defendant driver would be
responsible for as a contract worker.
The defendant then got into the truck and attempted to
drive away. As the defendant was attempting to leave,
the plaintiff tried to walk toward the truck to explain the
need for the repairs when the defendant intentionally
“gunned” the truck and attempted to run over the plaintiff. The plaintiff suffered torn medial and lateral menisci
of the left knee, effusion of the left knee and sprain and
strain to the right knee.
The plaintiff asserted that the defendant company failed
to provide proper training to the defendant driver, negligently entrusted a vehicle to an incompetent driver,
and was vicariously liable for acts of defendant driver.
The defendant denied all liability and argued that the
plaintiff was guilty of one or more negligent acts or omissions which were the sole cause of the incident in
question.
The jury found that the defendant was negligent and
awarded damages including past and future lost wages
and past and future medical expenses, for a total of
$1,557,500.
REFERENCE
Plaintiff’s economist expert: Dr. Kenneth McCoin
from Houston, TX. Plaintiff’s rehabilitation expert: Dr.
Angel Roman from San Antonio, TX.
Michael Lafeur vs. Conglobal Industries. Case no.
200868475; Judge Larry Weiman, 02-17-11.
Attorney for plaintiff: John B. Wallace of Barker
Lyman, P.C. in Houston, TX. Attorney for defendant:
Cory Daniel Itkin of Arnold & Itkin, L.L.P. in Houston,
TX.
COMMENTARY
The plaintiff in this negligence suit filed his original petition alleging that the defendant company was vicariously liable for the
criminal acts of the defendant individual. The defendant company
responded to that petition arguing that Texas law rarely if ever has
found a defendant company liable for the serious criminal acts of
an agent or employee. Consequently, the plaintiff filed an
amended petition alleging that the defendant company failed to
properly train and supervise the independent contractor.
Although the independent contractor was found guilty in criminal court of assault for running over the plaintiff, the plaintiff testified in a deposition that he did not think that the driver was aware
that the plaintiff was standing in front of the vehicle’s cab when the
driver hit the gas. Nevertheless because of the criminal conviction,
the jury was instructed that the contractor had intentionally assaulted the plaintiff and that he was at the time of the assault an
employee or agent of the defendant company.
CONFIDENTIAL RECOVERY – CONTRACT – DEBRIS REMOVAL COMPANY SUES FOR
UNPAID INVOICE CONNECTED TO HURRICANE IKE CLEAN-UP – UNSPECIFIED
AMOUNTS IN UNPAID FEES.
Galveston County, TX
In this matter, a debris removal company sued for
unpaid invoices for debris collection in the wake
of Hurricane Ike. The matter was discharged from
the court after a settlement was reached for a
confidential amount.
On September 13, 2008, Hurricane Ike made landfall
near the Bolivar Peninsula in the upper Texas Coast. The
hurricane at that time was a Category 2, with a maxi-
mum sustained wind velocity in excess of 110 mph,
eventually reaching category 4 status with wind velocity
of over 130 mph. Following landfall, the plaintiff DRC
Emergency Services commenced work under a preevent removal contract with the city of Galveston to dispose of the massive amounts of debris throughout the
city. Two weeks after landfall, DRC entered into a contract with Galveston Yacht Club to remove debris from
their premises. The debris included damage from Hurricane Ike, as well as debris from a fire in the club’s dry
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FEATURED CASES
storage area the day prior. The agreement was finalized
and executed on September 25, 2008, with more than
300 vessels removed and demolished, as well as
structural debris and other detritus.
REFERENCE
The plaintiff filed suit in the 212th District Court of
Galveston County for breach of contract, as well as
quantum meruit for unpaid invoices, unjust enrichment,
fraud and conspiracy, naming Galveston Yacht Club,
Continental Casualty Company, The Sealy & Smith
Foundation and CNA Insurance Company. Damages
were sought for unpaid invoices, as well as exemplary
damages.
Attorney for plaintiff: Shaun W. Hodge of Galveston,
TX. Attorney for defendant: Ashley Bennett Jones of
Zelle, Hoffman, Voelbel, & Mason, LLP of Dallas, TX.
The matter was settled pre-trial for a confidential
amount.
DRC Emergency Services, LLC vs. Galveston Yacht Club,
Inc., et al. Case no. 10-cv-4028; Judge Susan Criss, 0719-11.
COMMENTARY
Hurricane Ike caused an estimated $24 billion in
coastal damage. It has since been categorized as the
third most costly hurricane in American history,
surpassed only by Hurricane Andrew in 1992 and
Hurricane Katrina and 2005.
Verdicts by Category
PROFESSIONAL MALPRACTICE
Emergency Department
$51,681 RECOVERY
Medical Malpractice – Emergency Department –
Failure to X-ray object lodged in child’s nose –
Failure to remove a lithium battery from child’s
nose – Severe acid burns to the mucosa of the
nose.
Harris County, TX
In this medical malpractice case, the plaintiffs
alleged that the defendant hospital staff failed to
take an X-ray of a lodged object in the minor’s
nose. The object was a battery. The staff then
negligently sprayed the minor’s nose with moist
agents which caused the battery to corrode and
leak acid, resulting in serious injury to the minor.
The defendants contended that all care provided
to the plaintiff was within accepted medical
standards.
On February 11, 2007, a Saturday morning, the threeyear-old female plaintiff presented to the defendant
emergency room with complaints of a lodged object in
her right nostril. The plaintiff mother informed the defendant doctor that the object was part of a light up pen or
pencil and that it appeared to be metallic in nature.
The defendant doctor examined the minor and concluded that she thought the object was cotton or cloth
and that it should come right out when pulled.
The plaintiff mother requested an X-ray, but was told by
the defendant that an X-ray was not necessary. The defendant doctor and the nursing staff then attempted to
Volume 3, Issue 2, September 2011
remove the object by first spraying Lidocaine and
Neosynephrine into the minor’s nose and then attempting to grab the object with a clamp. The object did not
come out and the plaintiff mother again requested an
X-ray, which the defendant again denied. After another
shot of the Lidocaine and Neosynephrine, there was a
second attempt to remove the object. It too was
unsuccessful.
At this point, the minor began to complain of extreme
pain and an orange-brown liquid began to drain from
her nose. The defendant doctor examined the nose
again and informed the plaintiff’s mother that she now
saw that the object was metal and that the plaintiff
should call Monday morning to see an ENT. The plaintiffs
were discharged home after being at the hospital for
almost two days.
Later that day, the minor spiked a fever. The minor was
seen by an ENT first thing Monday morning. The ENT took
an X-ray of the minor’s nose and performed emergency
surgery. During the surgery, the doctor removed a lithium battery from the child’s nose that had corroded and
been leaking battery acid in the minor’s nose for two
days. As a result, the minor suffered infection, denuding
of the mucosa, loss of nasal septa and mucosa, aggravation of preexisting asthma and severe sinus headaches. The minor has undergone three additional
procedures to the nose and future surgery cannot be
ruled out.
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The plaintiff alleged that the defendants were negligent
in failing to identify the object lodged in the minor’s
nose, failing to take adequate measures to remove the
object in the minor’s nose, and repeatedly administering
Lidocaine and Neosynephrine without identifying the object. The defendants denied all liability and argued that
all care provided to the minor was within accepted
standards.
The defendant Baylor settled with the plaintiffs for
$40,000 and the defendant St. Luke’s settled with the
plaintiffs for $11,680.77, for a total of $51,680.77.
REFERENCE
Plaintiff’s internal medicine expert: Dr. Nestor
Zenarosa, MD from Dallas, TX. Defendant’s
pediatrics expert: Mark Douglas Baker from
Baltimore, MD.
Keri and James Jordan as parents and next friends of
Abygail Jordan vs. Baylor College of Medicine, St. Luke’s
Hospital. Case no. 200907187; Judge Alfred Bennett,
03-01-11.
Attorney for plaintiff: Michael Young Saunders in
Houston, TX. Attorney for defendant: Frank Luccia of
Luccia & Evans in Houston, TX.
AGE DISCRIMINATION
DEFENDANT’S VERDICT
Age Discrimination – Wrongful termination of a
71-year-old land surveyor – Plaintiff is allegedly
subjected to a hostile and ageist work
environment.
Harris County, TX
In this employment discrimination case, the
plaintiff alleged that the defendant land survey
company discriminated against the plaintiff and
terminated him because he was the oldest land
surveyor in the company. The defendant argued
that the plaintiff was terminated for legitimate
business reasons as part of a reduction in force to
save costs. The plaintiff was one of five total
employees that was let go.
In September of 2008, the plaintiff’s supervisor asked the
plaintiff if he would be interested in reducing his work
week from five days to four days in exchange for a reduction of salary. The plaintiff told the supervisor that he
would consider the proposal. At the time, the plaintiff
was 71 years old. The next month the supervisor again
asked the plaintiff if he would be interested in reducing
his hours. The plaintiff replied that he needed to see the
impact the reduction would have on his benefits. The
next month on November 4th, the plaintiff was presented with an official employment agreement form
stating that the plaintiff would reduce his work hours and
accept a reduction in salary on the condition of
continued employment.
The plaintiff accepted the agreement under duress. The
next day the plaintiff was informed that he was being
laid off temporarily and would be called back to work
when business picked up. The plaintiff was never called
back to work. The plaintiff alleged that the defendants
exposed the plaintiff to an ageist and hostile work environment, often referring to the plaintiff as “old man”. The
plaintiff also alleged that the plaintiff was terminated on
account of his age.
The defendant countered that the plaintiff was not discriminated against because no one was hired to replace the plaintiff. The plaintiff was simply part of a plan
in the reduction of staff as a consequence of difficult
economic times.
The jury found that age was not a determining factor in
the decision to lay off the plaintiff.
REFERENCE
John McGaughy vs. JPM Survey Group LP. Case no.
200976383; Judge Reece Rondon, 05-25-11.
Attorney for plaintiff: Peter Costea in Houston, TX.
Attorney for defendant: John Mayer of Ross Banks, et
al. in Houston, TX.
BOATING NEGLIGENCE
$209,742 VERDICT
Boating Negligence – Defendant boater strikes
plaintiff’s boat in the rear – Cervical disc injuries –
Damages only.
struck the plaintiff’s boat in the rear. The
defendant admitted liability in causing the
collision but denied that the plaintiff’s injury was
causally related to the accident.
Harris County, TX
This civil injury case results from a boating
accident in which the plaintiff claims he suffered
severe cervical injuries when the defendant’s boat
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On May 18, 2008, the plaintiff was in his boat on a lake
in Harris County, Texas when the defendant struck the
rear of the plaintiff’s boat. As a result, the plaintiff suffered
cervical disc herniations and bulges along with cervical
radiculopathy.
and the defendant could not avoid striking the plaintiff’s
boat. The defendant later admitted liability and the
case proceeded to trial on the issue of damages only.
The plaintiff alleged that the defendant failed to keep a
proper lookout and failed to yield the right-of-way. The
defendant originally argued that he was following at a
safe distance directly behind the plaintiff when the plaintiff made a sudden, unexpected and complete stop
REFERENCE
The judge awarded damages totaling $209,741.57
George Taylor vs. Alfred Carrier. Case no. 200972412;
Judge Dan Hinde, 06-07-11.
Attorney for plaintiff: James Odis Blackwell III in
Houston, TX. Attorney for defendant: Jennifer Turner
in Houston, TX.
CIVIL ASSAULT
$15,000 VERDICT
Civil Assault – Employee of the defendant pain
management center impersonates a doctor and
sexually assaults plaintiff patient – Failure to
properly monitor and supervise the actions of its
employees.
Harris County, TX
In this sexual assault case the plaintiff alleged
that the defendant pain center was negligent for
failing to supervise one its employees who
committed assault while impersonating a doctor
at the pain center. The defendant denied that the
incident occurred as alleged and denied that they
were negligent.
On July 3, 2009, the plaintiff presented to the defendant
pain management center for treatment for her sore
back. The defendant individual was an employee of the
defendant center and on this date impersonated himself as a doctor and treated the plaintiff. In fact, the
plaintiff wore a lab coat of a Dr. Patrick who was employed with the defendant pain center. The defendant
individual took the plaintiff into an exam room and instructed the plaintiff to remove her shirt and bra. The de-
fendant then made lewd comments to the plaintiff and
forcibly kissed her. All of these actions were unwanted
and constitute assault and battery under Texas law.
The plaintiff alleged that the defendant pain management center failed to properly monitor and supervise the
defendant and allowed him to wear a lab coat of a
doctor thereby creating the impression that he in fact
was a doctor. The defendants denied all and argued
that the incident in question did not occur as the plaintiff
alleged and any injury suffered by the plaintiff was the
result of negligent acts committed by the plaintiff and
not by any act of any employee of the pain
management center.
The defendant failed to appear for trial and was in default. All questions of fact were submitted to the court
and the judge awarded the plaintiff $15,000.
REFERENCE
Stacey Blunt vs. Pinnacle Pain Management Center.
Case no. 200947798; Judge Sylvia Matthews, 05-06-11.
Attorney for plaintiff: R. Tate Young in Houston, TX.
Attorney for defendant: Herbert A. Janzen in
Houston, TX.
CONTRACT
$10,378 DEFAULT JUDGMENT
Contract – Texas lawyer sues after business fails
to pay for negotiations for demolition of historic
building – Over $7,000 in unpaid services.
Galveston County, TX
In this matter, a Texas attorney sued his clients for
failing to pay him for helping secure the
demolition of a hurricane damaged building in
Galveston, Texas. The matter was settled via
default judgment after the defendants failed to
respond.
Volume 3, Issue 2, September 2011
This suit concerned a piece of property located on the I45 entry corridor of Offat’s Bayou, on Broadway St. in
Galveston. The defendants contacted the plaintiff, a
Texas City-based attorney, to negotiate on their behalf
with the City of Galveston for the demolition of a property owned by the defendant’s company Endeavor
Lofts, Galveston LLC. The defendants intended to demolish the existing structure on the property and build
condominiums. However, demolition plans were halted
by the City’s Historic Office due to its eligibility for listing
the National Registry of Historic Places.
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The structure was built in the 1920s and housed the historic John’s Oyster Bar, which the city’s Historic Preservation Officer successfully had given a historic designation,
effectively halting the defendants’ development. To
make matters worse, the building was damaged by Hurricane Ike on September 10, 2008. The defendants were
still not permitted to demolish the building.
The services of the plaintiff involved securing demolition
permits regardless of the Historic Society’s objection. The
plaintiff further accomplished this after the defendants
requested he secure permits within five days of their approaching him, so that they could utilize FEMA funds to
dispose of the rubble from the demolition. Due to his efforts, the plaintiff alleged, the demolition permit was secured on March 5, 2009 and the building destroyed by
March 10. However, no payment was made to the
plaintiff for his services, precipitating this action.
11
Robin P. for breach of contract. Damages sought included the unpaid fees for his services, attorney’s costs
and court costs.
The matter was decided by a default judgment in the
plaintiff’s favor after the defendants failed to respond.
The order required the defendant parties to pay the
plaintiff $10,378.50 for his work in negotiating with the
city on their behalf, including $$4,275 in actual amount
owed, $5,643.50 in attorney’s fees, and $460 for court
costs.
REFERENCE
Cris A. Rasco vs. Robin Parsley and Scott Chandler.
Case no. CV-0064700; Judge John Grady, 06-22-11.
Attorney for plaintiff: Cris Rasco in Texas City, TX.
The plaintiff attorney filed suit in Galveston County’s Court
at Law #1 for breach of contract, theft of service, and
quantum meruit. Named in the suit were Scott C. and
DEFENDANT’S VERDICT FOR THIRD-PARTY DEFENDANT
Contract – Roofing Contractor – Defendant school
district files third-party suit for negligence and
contribution after contesting payment to plaintiff
vendor for asbestos remediation.
Hidalgo County, TX
In this action for quantum meruit, the plaintiff
alleged that the defendant school district failed to
provide appropriate compensation for services
rendered. Not only did the school district deny
liability, but it also filed a counter-claim against
the plaintiff and a third-party lawsuit against the
third party defendant contractor for negligence
and seeking contribution/indemnification.
On June 24, 2004, the third-party defendant, Commercial Roofing Systems, Inc. (the “contractor”) was installing
a new roof on a middle school owned and operated by
the defendant, La Joya ISD (the “school district”) when a
rain storm occurred. Water from the rain storm leaked
into the middle school and the leak resulted in the alleged release of asbestos and mold growth inside the
building. As a result, the school district hired the plaintiff,
Bio-Tech Solutions, Inc., to completely remediate the
building. Upon completing its work, the plaintiff invoiced
the school district approximately $1,300,000, but only
received half of the money; approximating $680,000.
Insisting that $1,300,000 approximated the reasonable
value of the materials used and services rendered; the
plaintiff sued the school district for the balance of the
payment. The school district refused to pay. Primarily,
the school district argued that the school board had
never taken formal action to approve the contract and,
therefore, no contract existed. Thus, the school district
contended that the plaintiff was barred from recovery
insofar as there was no exception to the school district’s
sovereign immunity. Alternatively, the school district ar-
gued that, even if there was a contract, the reasonable
value of services rendered was more appropriately estimated in the $300,000 range. Therefore, the school district counterclaimed against the plaintiff for the recovery
of partial overpayment.
In addition, the school district filed a third-party lawsuit
against the contractor; arguing negligence and seeking
contribution/indemnification. Specifically, the school district alleged that the contractor did not properly water
tight the thru-wall scuppers at the time of the rain event.
As a result of this negligence, the school district argued
that rain was allowed to enter the building and that they
were forced to utilize the plaintiff’s services in order to
remediate the building.
The contractor denied all liability and argued that it had
acted as a reasonable and prudent contractor under
the circumstances. The contractor also presented an alternative argument challenging the value of the damages alleged; estimating those damages at less than
$100,000.
Ultimately, the jury determined the reasonable value of
the plaintiff’s services to be $780,121. Also, as it related
to the third-party action, the jury found that the school
district was 100% liable for the damages alleged. Therefore, the contractor and the individual defendant, R.
Vela, were not assigned any liability.
REFERENCE
Plaintiff’s asbestos expert: John Cook from Rio
Grande Valley, TX. Plaintiff’s Bio-Tech’s owner and
asbestos expert: Roberto Garcia from Mcallen, TX.
Defendant’s architect/engineer (for Third-Party
Defendant) expert: Jean Paul Buddinger from
Houston, TX. Defendant’s asbestos expert: Russ Gout
from Dallas, TX. Defendant’s asbestos contractor (for
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Third Party Defendant) expert: Kevin Lawrence from
Abeliene, TX. Defendant’s construction expert: Don
Wessinger from Rio Grande Valley, TX. Defendant’s
construction/pricing expert: Larry Stephenson from
Rio Grande Valley, TX.
Bio-Tech Solutions, Inc. vs. La Joya ISD and Commercial
Roofing Systems, Inc. Case no. C-2045-05-E; Judge
Hon. Fred Hinojosa, 07-29-11.
Attorney for plaintiff: Juan A. Gonzalez of Romero
Gonzalez & Benavides, LLP in Mcallen, TX. Attorney
for defendant La Joya ISD: Jose R. Guerrero of
Ramirez & Guerrero, LLP in Mcallen, TX. Attorney for
defendant Ricardo Vela: Mauro Reyna, III in Penitas,
TX. Attorney for defendant Commercial Roofing
Systems, Inc.: Javier Gonzalez and Eddie Sikes of
Royston, Rayzor, Vicery & Williams, LLP in
Brownsville, TX.
DOG ATTACK
$150,000 RECOVERY
Dog Attack – Minor plaintiff is attacked by the
defendant’s dog – Brother witnessed the event
and was traumatized.
room and the dog continued to attack the child. While
the minor child was being attacked, his brother, the
other plaintiff witnessed the event.
Dallas County, TX
The plaintiffs brought suit against the defendants alleging negligence and strict liability. The defendants denied the allegations and disputed the nature and extent
of the plaintiffs’ injuries and damages.
In this dog attack case, the plaintiff brought suit
against the defendants alleging that the
defendants were negligent in failing to keep the
dog properly secured and controlled. As a result
of the defendants’ negligence, the dog attacked
the minor plaintiff and traumatized his brother
who witnessed the dog attack. The defendants
denied the allegations and disputed the nature
and extent of the plaintiffs’ injuries.
On May 9, 2009, the two minor plaintiffs went to the defendant’s property as guests for a play date with the defendants’ children under the supervision of the children’s
grandfather. While the four-year-old minor plaintiff was at
the property, the defendants’ Akita attacked the plaintiff.
The child attempted to run from the dog into another
The parties agreed to settle the plaintiffs’ claims for the
sum of $150,000. The settlement was approved by the
court.
REFERENCE
Brian Black and Deepa Black individually and as Next
Friend of Harrison Black and Dylan Black vs. Stephanie
Osteen, Jerry Osteen and Dallas Darvin Rahn. Case no.
DC-10-02616; Judge Martin Lowy, 05-04-11.
Attorneys for plaintiff: Dalton D. Harris, III, Austin H.
England and Ragan N. Speer of The Harris Firm in
Dallas, TX.
DEFENDANT’S VERDICT
Dog Attack – Failure to properly secure a
Rottweiler on a business premise – Plaintiff
attacked by the defendant’s dog while on the
defendant’s auto repair premises checking on his
vehicle – Multiple bite wounds and lacerations.
Harris County, TX
The plaintiff in this action alleged that he was a
business invitee lawfully on the defendant’s
premises in an attempt to check on the status of
his vehicle that was being repaired by the
defendant dog owner who was a mechanic. As
the plaintiff entered the gates of the premises, he
was attacked by the defendant’s Rottweiler. The
defendant argued that the plaintiff was
trespassing at the time of the incident as the
business was closed.
On July 30, 2009, the plaintiff entered the defendant’s
auto yard in order to check on his car that had been in
the defendant’s auto shop for two weeks. As he entered
the gate, he was suddenly and viciously attacked by
Volume 3, Issue 2, September 2011
the defendant’s Rottweiler. As a result, the plaintiff suffered multiple bite wounds, deep lacerations, and severe post-traumatic stress disorder.
The plaintiff alleged that the defendant was negligent in
failing to act reasonably, failing to implement measures
to keep plaintiff safe on the defendant’s premises and
failing to properly secure a vicious animal. The defendant denied that he was negligent and asserted that
the plaintiff had entered the premises through a closed
gate after posted business hours and was trespassing at
the time of the incident.
The jury found that at the time of the incident, the plaintiff was trespassing on the defendant’s premises.
REFERENCE
John Anthony Loyola vs. Kenny Sivaxay. Case no.
200978367; Judge John Donovan, 05-11-11.
Attorney for plaintiff: S. Bruce Hiran of S. Bruce Hiran
& Associates, P.C. in Houston, TX. Attorney for
defendant: Bernard Bolanos in Houston, TX.
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DOG BITE
$90,000 RECOVERY
Dog Bite – Five-year-old minor is bitten in the face
by the defendants’ dog – Facial lacerations and
scarring.
Harris County, TX
In this dog bite negligence case, the minor
plaintiff was visiting the defendant when the
defendants’ cocker spaniel suddenly lunged at the
minor and bit her on the cheek. The defendants
contended that the minor and her mother were
warned not to disturb the dog, but the minor
grabbed the dog and the dog bit her.
On February 9, 2009, the female minor plaintiff and her
mother and sister were visiting the defendants. While on
the porch, the minor plaintiff approached the defendant’s cocker spaniel. The dog lunged at the minor and
bit her on the cheek. As a result, the minor suffered a
laceration on her left cheek that required sutures and
left a permanent raised scar.
The plaintiffs alleged that the defendants violated
Texas’s Dangerous Dog Act and failed to protect the minor from harm. The defendants denied that they were
negligent and asserted that the minor and her mother
were warned about the dog’s temperament, but the
minor provoked the dog by grabbing him.
The parties settled their dispute for a total of $90,000,
with $85,000 going to the minor and $5,000 to the
mother.
REFERENCE
Gracey Jourdan a minor by her next friend Gina
Henderson vs. Robert and Joan Morton. Case no.
200956162; Judge Sylvia A. Matthews, 02-09-11.
Attorney for plaintiff: Steven Couch of Kelly, Sutter, &
Kendrick, P.C. in Houston, TX. Attorney for
defendant: Karl Douglas Drews in Houston, TX.
EMPLOYER’S LIABILITY
$55,000 RECOVERY
Employer’s Liability – Parents sue after 13-monthold breaks leg at daycare and receives no
treatment – Failure to treat injured infant.
Galveston County, TX
The parents of a one-year-old who broke his leg
at daycare filed suit in Galveston County for
hazardous premises and negligence.
On August 25, 2009, the 13-month-old son of plaintiffs
Frank and Edith R. was at the Kid City Childcare Learning
and Sports Center. The plaintiffs alleged that their son
sustained a fracture to his leg when defendant employee Lindsay S. pushed him through a doorway. They
further alleged that the injury was concealed from them
and not treated in a timely fashion. The plaintiff cited the
substantial mental anguish the child suffered due to his
untreated injury, as well as the later emotional distress of
the parents. They further cited their need for a parent to
now care for the child at home as an economic loss.
Frank and Edith R. filed suit in 212th District Court of
Galveston County for hazardous premises and negligence, naming the daycare center and Lindsay S. The
parents sought damages for past and future medical
expenses for their child, past and future mental anguish
stemming from breach of the Texas Deceptive Trade
Practices Act, and mental anguish damages. Actions
for past and future mental anguish, physical disfigurement or impairment pain and suffering and long term or
permanent disability were pursued for the child.
Individual recovery was sought for past lost wages by the
father, and past and future lost wages for the mother,
who claimed to need to stay at home with the child.
They further claimed that the willful, intentional and malicious attempt to conceal the child’s injury constituted a
breach of the Texas Penal Code Sec 22.04 which entitled them to exemplary damages.
The matter was settled for a sum of $55,000, including
$26,666.67 for the child and $28,333.33 for the parents
as next friend of the minor, plus legal fees.
REFERENCE
Frank and Edith Reyes vs. Kid City Childcare Learning
and Sports Center LLC and Lindsay Sweatt. Case no. 09cv-1876; Judge Susan Criss, 06-10-11.
Attorney for plaintiff: David L. Miller in Houston, TX.
Attorney for defendant: Robert L. Chaiken.
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MOTOR VEHICLE NEGLIGENCE
Intersection Collision
$8,957 VERDICT
Motor Vehicle Negligence – Intersection Collision
– Failure to stop for posted stop sign – Failure to
yield right-of-way – Cervical injuries and
contusions.
dant driver was in course and scope of his employment
with the defendant company in a vehicle the company
owned. The plaintiff sued the defendant company under the Respondeat Superior theory.
Harris County, TX
Both defendants denied all liability and argued that that
defendant driver was faced with a sudden emergency
and could not avoid striking the plaintiff’s vehicle. Additionally, the defendants denied that the plaintiff was injured in the accident.
In this intersection negligence case, the plaintiff
claimed he was injured when the defendant failed
to stop for a stop sign and collided with the
plaintiff’s car. The defendant claimed he was
faced with a sudden emergency and could not
avoid the collision.
On July 28, 2005, the plaintiff was lawfully traveling in an
easterly direction on Airport Road in Harris County at an
intersection when the defendant, traveling southbound
on South Santa Fe Road, failed to stop for a stop sign
and collided with the plaintiff’s vehicle. The plaintiff alleged that the defendant failed to yield the right-of-way,
failed to keep a proper lookout and failed to stop for a
posted stop sign.
The jury awarded the plaintiff medicals in the amount of
$7808.85 plus $148.00 in lost wages and $1,000 in past
pain and suffering.
REFERENCE
Durell Lott vs. Norlee Dickey, Jr. and Turkco Corporation.
Case no. 200681132; Judge R.K. Sandill.
Attorney for plaintiff: Scott Robelen of Bailey &
Galyen in Dallas, TX. Attorney for defendant: John
Michael Causey in Conroe, TX.
As a result, the plaintiff suffered cervical sprain,
cervicogenic headaches and contusions of the left hip
and right knee. At the time of the accident the defen-
$5,736 VERDICT
Motor Vehicle Negligence – Intersection Collision
– Defendant’s failure to stop for a red light results
in a collision – Thoracic sprain and strain.
Harris County, TX
In this intersection motor vehicle negligence case,
the male plaintiff suffered injuries to his back
when he was proceeding through an intersection
with a green light and the defendant, traveling at
the same intersection, ran a red light and struck
the plaintiff’s vehicle. The defendant denied that
he was negligent.
The plaintiff was traveling westbound on Bay Area at its
intersection with Red Bluff. At the same time, the defendant was traveling south at the same intersection and
failed to stop for a red light striking the plaintiff’s vehicle
on the right side. As a result, the plaintiff suffered a sprain
and strain of the thoracic spine.
The plaintiff alleged that the defendant failed to yield
the right-of-way and failed to keep a proper lookout. The
defendant denied that he was negligent and denied
that the plaintiff suffered any injury.
The jury found the defendant 100% liable for the accident and awarded the plaintiff $5,735.53.
REFERENCE
Michael Karle vs. Claudia Hernandez. Case no.
201022930; Judge Randy Wilson, 05-12-11.
Attorney for plaintiff: Adam Criaco in Houston, TX.
Attorney for defendant: Leonard Mitchell Rubin of
Law Offices of G. Patrick Collins & Associates in
Houston, TX.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Intersection Collision
– Failure to keep a proper lookout – Neck and
back injuries – Radiculopathy – Myositis.
Harris County, TX
vehicle after the defendant entered an
intersection without stopping for a posted stop
sign. The defendant denied that he did not stop
for the stop sign and argued that the host driver
violated the defendant’s right-of-way.
The plaintiff sustained cervical and lumbar
injuries when the car in which she was a
passenger was forced to strike the defendant’s
On September 1, 2009, the plaintiff was a passenger in
a vehicle traveling eastbound in the 2600 hundred
block of Speard Rd. toward Swordcreek Rd. when the
Volume 3, Issue 2, September 2011
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defendant traveling northbound on Swordcreek ran a
stop sign and the plaintiff’s host vehicle was forced to
strike the defendant’s vehicle in the rear quarter panel.
The plaintiff was diagnosed with cervical sprain, cervical
radiculopathy, lumbar sprain, shoulder sprain, lumbar
radiculopathy, and myositis.
The plaintiff asserted that the defendant failed to keep a
proper lookout, failed to take proper precautions to
avoid the collision, and failed to make a timely and
proper application of the brakes. The defendant denied
all allegations of negligence and demanded proof of
the allegations beyond a preponderance of evidence.
Further, the defendant alleged that the plaintiff’s host
driver was negligent in failing to yield the right-of-way,
causing the collision.
The jury found for the defendant.
REFERENCE
Teila Stephens vs. Thang Nguyen. Case no. 201001286;
Judge Larry Weiman, 06-14-11.
Attorney for plaintiff: Sammy Ford, IV of Abraham,
Watkins, Nichols, Sorrels, Agosto & Friend in
Houston, TX. Attorney for defendant: Cory Don
Sepolio in Houston, TX.
Left Turn Collision
$116 VERDICT
Motor Vehicle Negligence – Left Turn Collision –
Plaintiff’s vehicle is struck by defendant as
defendant was making a left turn at an
intersection – Knee and ankle injuries – Tooth
fracture.
The plaintiff suffered an abrasion to his ankle when his
foot slipped under the brake pedal. He also suffered
torn ligaments in his left knee and a fractured tooth. As a
result, the plaintiff underwent arthroscopic surgery to his
knee and a dental procedure to fix the fractured tooth.
Harris County, TX
The defendant denied that his negligence caused the
accident and argued that he was faced with a sudden
emergency and could not avoid the collision. The defendant also argued that the plaintiff’s knee injury was
not related to the accident and was in fact a sports related injury from cycling.
In this motor vehicle negligence case, the plaintiff
and defendant were traveling in opposite
directions at an intersection when the defendant
made a left turn and struck the plaintiff’s SUV in
the side. As a result the plaintiff suffered injuries
to his teeth, ankle and knee. The defendant
denied all negligence and claimed the accident
was unavoidable. The defendant also denied a
causal relationship between the accident and the
defendant’s knee injury.
On July 22, 2007, the plaintiff was proceeding southbound on Sienna Parkway, approaching an intersection.
At the same time, the defendant was traveling northbound on Sienna Parkway and made a left turn at the
intersection colliding with the side of the plaintiff’s vehicle. The plaintiff argued that the defendant failed to
yield the right-of-way and failed to keep a proper
lookout.
The jury found that the defendant was negligent and
that his negligence caused the plaintiff’s injury to his
tooth and ankle only. They awarded the plaintiff
$116.00.
REFERENCE
Plaintiff’s internal medicine expert: Elizabeth Torres
from Sugar Land, TX.
Keir Johnson vs. Mourhf Sabouni. Case no. 200945893;
Judge Sylvia A. Matthews, 04-07-11.
Attorney for plaintiff: Larry Trimble in Houston, TX.
Attorney for defendant: Ray Burgess in Conroe, TX.
Rear End Collision
$7,133 VERDICT
Motor Vehicle Negligence – Rear End Collision –
Failure to maintain a safe following distance –
Neck and back sprains.
Harris County, TX
The plaintiff in this rear end collision case alleged
that she suffered sprains and strains to her
cervical, thoracic and lumbar spine as a result of
being struck in the rear at a red light by the
defendant. The defendant alleged that the
negligence of the plaintiff caused or contributed
to the accident.
On August 8, 2009, the plaintiff was traveling north on
the 3600 block of highway 6 and was stopped at a red
light when her vehicle was struck in the rear. As a result,
the plaintiff suffered cervical and lumbar sprains and
strain.
The plaintiff alleged that the defendant was negligent in
failing to use due care and failing to maintain a safe following distance. The defendant denied that his actions
caused the incident and argued that the plaintiff was
negligent in causing the collision.
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VERDICTS BY CATEGORY
The jury found for the plaintiff and awarded the plaintiff
$7132.89.
Attorney for plaintiff: Dal Anthoni Fenton in Houston,
TX. Attorney for defendant: Angela Marie Wood in
Houston, TX.
REFERENCE
Rosa Leang vs. Omar Abou – Mourad. Case no.
201009835; Judge Larry Weiman, 05-24-11.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Rear End Collision –
Plaintiff stopped for a red light when his vehicle is
struck in the rear by defendant – Neck and back
injury – Right rotator cuff tear.
Harris County, TX
In this rear end negligence case, the plaintiff
alleged he suffered multiple injuries, including
cervical disc protrusions and right rotator cuff
tear, when his stopped car was struck in the rear
by the defendant. The defendant denied that she
was negligent and denied that the plaintiff
suffered anything more than cervical and lumbar
sprains and strains.
On October 6, 2006, the male plaintiff was operating his
vehicle in the city of Houston and was stopped at a red
light when his vehicle was struck in the rear by the defendant. As a result, the plaintiff suffered cervical/lumbar
sprain and strain, right upper extremity radiculopathy,
right rotator cuff tear, right knee injury and cervical disc
protrusions.
The plaintiff alleged that the defendant failed to maintain a proper distance and failed keep a proper lookout. The defendant denied that she was negligent and
that she caused the collision. The defendant also argued that most of the injuries alleged by the plaintiff
were unrelated to the motor vehicle accident and at
most the plaintiff suffered cervical and lumbar sprains
and strains.
The jury found that the defendant was not negligent.
REFERENCE
Steve Cleary vs. Kristen Opry. Case no. 200848165;
Judge Ken Wise, 05-05-11.
Attorney for plaintiff: Bruce Andrew Munson in
Houston, TX. Attorney for defendant: Carlette White
in Houston, TX.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Rear End Collision –
Failure to apply brakes in a timely manner –
Failure to keep a proper lookout – Cervical
injuries.
Harris County, TX
In this rear end negligence case, the plaintiff
claimed she suffered injuries to her neck when
her car was stopped in traffic and was struck in
the rear by the defendant. Prior to trial, the
defendant stipulated to negligence in causing the
accident. The defendant denied that the plaintiff
suffered any serious or permanent injury as a
result of the accident.
On July 27, 2007, the female plaintiff was lawfully traveling on Yellowstone Street and was stopped in traffic
when the defendant struck the plaintiff’s vehicle in the
rear. The plaintiff alleged that the defendant was negligent in failing to apply the brakes, following too closely
and failing to keep a proper lookout.
As a result, the plaintiff suffered C3-C4, C4-C5, C5-C6
and C7-T1 disc protrusions and cervical radiculopathy.
The defendant admitted liability in causing the collision,
but denied that the plaintiff was seriously injured as a result of the accident.
The jury found that the defendant’s negligence was not
a substantial factor in bringing harm to the plaintiff.
REFERENCE
Lashonda Lewis vs. William Hartford. Case no.
200934437; Judge John Donovan, 03-01-11.
Attorney for plaintiff: Nomaan K. Husain of Young &
Husain, P.L.L.C. in Houston, TX. Attorney for
defendant: Michael W. Cooper in Houston, TX.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Rear End Collision –
Plaintiff’s vehicle is struck in the rear at a red light
– Lumbar injuries.
Volume 3, Issue 2, September 2011
Harris County, TX
In this rear end negligence case, the plaintiff was
stopped behind another vehicle at a red light
when the defendant struck the plaintiff in the
rear. The defendant denied that his negligence
caused the accident and denied that the plaintiff
was injured as a result of the collision.
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On August 11, 2007, the plaintiff was driving his vehicle
westbound on Bellaire Boulevard and had come to red
light. The plaintiff was stopped behind another vehicle at
the light when his car was struck in the rear by the defendant. As a result, the plaintiff sustained lumbar facet irritation and lumbar radiculopathy.
The plaintiff contended that the defendant failed to apply the brakes in a proper and timely manner and failed
to keep a proper lookout. The defendant denied that he
was negligent and denied that the plaintiff sustained a
serious or permanent injury in the collision.
The jury found that the defendant was negligent in causing the collision, but declined to award damages to the
plaintiff.
REFERENCE
Renzon Ibarguen vs. Jesse Arlington. Case no.
200949729; Judge John Donovan, 04-25-11.
Attorney for plaintiff: Roger Andrew Sullivan of
Ramos Law in Houston, TX. Attorney for defendant:
Noe Moreno in Houston, TX.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Rear End Collision –
Plaintiff injured when the ladder he was
transporting on top of his car was struck by a UPS
truck traveling behind the plaintiff – Neck and
back injuries to plaintiff.
Harris County, TX
In this motor vehicle negligence case, the plaintiff
was injured when he slowed his vehicle to
observe a house number and the defendant driver
operating a UPS truck directly behind the plaintiff
struck the ladder that was on the top of plaintiff’s
vehicle causing the plaintiff to be thrown about
his car and suffer injuries.
On July 12, 2007, the plaintiff was traveling southbound
on North Boulevard and had slowed his vehicle in order
to observe numbers on the houses when the defendant
traveling directly behind the plaintiff failed to slow his vehicle and struck the ladder that was on top of the plain-
tiff’s vehicle, sticking out the back rear. The impact
caused the plaintiff to be thrown about the interior of his
car.
As a result, the plaintiff claimed to have suffered cervical
and lumbar disc injuries. The defendants denied all liability and argued that the plaintiff did not suffer a serious
or permanent injury.
The jury found that the defendant driver was 75% negligent and the plaintiff driver was 25% negligent, but the
jury also found that the plaintiff did not sustain a serious
injury and declined to award damages.
REFERENCE
Joe Hinojosa vs. Michael Paley and United Parcel Service. Case no. 200915999; Judge Dan Hinde, 03-21-11.
Attorney for plaintiff: Bruce Andrew Munson in
Houston, TX. Attorney for defendant: Douglas Gosda
of Bean & Manning LLP in Houston, TX.
Stopped Vehicle Collision
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Stopped Vehicle
Collision – Defendant backs into the front of the
plaintiffs’ vehicle while in a drive-through line –
Neck and back injuries to the plaintiffs.
Harris County, TX
The plaintiffs were stopped in a drive-thru line at
a fast food restaurant when the defendant, who
was in front of the plaintiffs’ vehicle, backed her
vehicle up into the front of the plaintiffs’ vehicle
causing injuries to all the occupants in the
plaintiffs’ car.
On June 3, 2009, the two female adult plaintiffs and the
two minor plaintiffs were occupants of a car that was
stopped in a drive-thru line viewing a menu when the
defendant who in front of the plaintiffs backed her vehicle into the front of the plaintiffs’ car. As a result, the
plaintiffs claimed to have suffered cervical and lumbar
soft tissue injuries.
The defendant denied that she was negligent and argued that the car in front of her was reversing and she
was attempting to move out of the way of the other vehicle when the plaintiff continued moving forward causing the collision. The defendant also denied that any of
the plaintiffs suffered injury as a result of the collision.
The jury found no negligence on the part of the
defendant.
REFERENCE
Ashley Huntsbury, Dana Owens, Irealle and David Scott
vs. Julia Juarez. Case no. 200975546; Judge Kyle
Carter, 02-09-11.
Attorney for plaintiff: Mike Talabi of Talabi Law Firm
in Houston, TX. Attorney for defendant: Michael W.
Cooper in Houston, TX.
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VERDICTS BY CATEGORY
NEGLIGENT TRUCK LOADING
$16,513 VERDICT
Negligent Truck Loading – Plaintiff strikes 1,000pound beam in the road that fell off the
defendant’s tractor-trailer – Neck and back
injuries.
Harris County, TX
On September 5, 2008, the plaintiff was traveling
eastbound on Interstate 10 in Katy, Texas when
he collided with a steel beam that was in the road
after it had fallen off the defendant’s tractortrailer. The plaintiff alleged that the defendant
failed to properly secure the load. The defendant
denied all liability and argued that plaintiff was
comparatively negligent for failing to a take
evasive action to avoid the collision.
The defendant driver was operating a tractor-trailer for
the defendant company and was hauling solid steel
pipes or beams when he lost control of the vehicle and
struck the inside barrier of Interstate 10 causing eight of
the 1,000 to 2,000 pound beams to fall off the trailer
and land in the road. The plaintiff struck one of the
beams causing extensive damage to his vehicle and
suffering severe injury.
The plaintiff sustained cervical/thoracic/lumbar
intervertebral disc disorder, and lumbosacral sprain and
strain. The plaintiff maintained that the defendant tractor-trailer operator was negligent in failing to control the
speed of his vehicle, failing to properly secure the load
on the trailer and failing to have his vehicle under proper
and adequate control.
This was a non-jury verdict with the judge finding for the
plaintiff in the amount of $16,513.
REFERENCE
Anthony Lee Smith vs. George Andrew Johnson Individually and d/b/a G.A Johnson Trucking. Case no.
200917920; Judge Randy Wilson, 05-18-11.
Attorney for plaintiff: Charles Henry Peckham in
Houston, TX. Attorney for defendant: Lloyd John Culp
in Houston, TX.
$5,000 RECOVERY
Negligent Truck Loading – Failure to properly
secure cargo on the trailer bed – Failure to drive
at a safe and reasonable speed – Settlement for
an incapacitated passenger and a minor
passenger.
Harris County, TX
This settlement involved a special needs adult and
a minor child who were injured when the car in
which they were passengers encountered and
collided with spilled cargo from the defendant’s
tractor-trailer. The defendants denied all liability
and injury.
On October 21, 2009, the plaintiffs were traveling east
on Interstate Highway 20 when they encountered cargo
that came off the defendant’s tractor-trailer which was
traveling on the same highway in a westerly direction. As
the defendant driver executed a curve in the road, he
lost traction on the wet road and the 18 wheeler began
to fish tail. The cargo then detached and spilled over
into the eastbound lanes. At the time of the accident,
the defendant driver was operating the vehicle with a
suspended license.
The plaintiffs alleged that the defendant driver was operating the vehicle at an excessive speed, failed to keep
his vehicle under proper and adequate control and
failed to reduce his speed in wet road conditions. They
also alleged that the defendant failed to properly se-
Volume 3, Issue 2, September 2011
cure the cargo in the tractor. The plaintiffs maintained
that the defendant company is responsible for the actions of the defendant driver under the Respondeat
Superior doctrine.
All of the occupants of the plaintiff’s vehicle were hurt;
however, this settlement was for an incapacitated passenger and a minor passenger only. The incapacitated
passenger is special needs and she suffered a left shoulder sprain. The minor passenger suffered intracranial injury. The defendants denied all negligence and argued
that the plaintiff’s host driver was responsible for the collision and resultant injuries if the plaintiffs suffered any
injury, which was denied.
The minor received $2,000 in the settlement and the incapacitated plaintiff received $3,000.
REFERENCE
Destiny Garza a minor and Cynthia Rodriguez an incapacitated person by next friend, Hilda Rodriguez vs.
Guillermo Vasquez Estevez and Gulf Intermodal Service,
LLC. Case no. 201014160; Judge Brent Gamble, 01-0511.
Attorney for plaintiff: Tom Marshall Harrison of
Hornblower, Manning & Ward, Professional
Corporation in Corpus Christi, TX. Attorney for
defendant: Spencer W. Dobbs in Odessa, TX.
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PREMISES LIABILITY
Fall Down
$206,663 VERDICT
Premises Liability – Fall Down – Plaintiff falls on
water from a leaking roof while shopping in the
defendant’s grocery store – Lumbar injuries – Torn
ligaments in the right knee.
pery and dangerous condition. The plaintiff sued the defendant grocery store, the premises owner and the
maintenance company in charge of maintaining the
building.
Harris County, TX
As a result of the fall, the plaintiff suffered a L5-S1 herniated disc, right knee torn meniscus, requiring right knee
arthroscopic surgery and lumbar radiculopathy. The defendants denied all liability and injury and argued that
the plaintiff failed to watch where she was walking and
had a history of knee and back complaints.
In this premises liability action, the plaintiff
claimed she suffered torn ligaments in her right
knee requiring surgery and a lumbar disc
herniation with radiculopathy when she slipped
and fell on water in an aisle of the defendant
grocery store. The water came from a leak in the
roof about which the defendants were aware. The
defendant denied all liability and argued that the
plaintiff failed to watch where she was walking
and had a history of knee and back complaints.
On September 10, 2007, the plaintiff was a business
invitee of the defendant grocery store when she slipped
and fell on water that had accumulated in an aisle of
the defendant grocery store from a leaking roof for
which the defendants had knowledge of the condition.
Typically, the defendants placed buckets or trash cans
under the leaks, but on this day they had not. The plaintiff alleged that the defendants failed to maintain the
premises in reasonably safe condition, failed to inspect
and repair the premises and failed to warn of the slip-
The premises owner and maintenance company settled
out of court with plaintiff for $85,000. The case went to
trial against the defendant grocery store only with the
jury finding that the defendant was negligent and
awarding the plaintiff $206,663.
REFERENCE
Shirley Trevino vs. H.E. Butt Grocery Company, Houston
Gulfgate Partners and Wulfe Management Services.
Case no. 200857014.
Attorney for plaintiff: Jorge Gomez of Gomez Law
Firm in Houston, TX. Attorney for defendant: Andrew
H. Petty in Houston, TX.
Hazardous Premises
$97,971 VERDICT
Premises Liability – Hazardous Premises – Plaintiff
falls in a hole on a nature trail at a nature reserve
– Orthopedic injury to the leg requiring surgery
and casting.
Harris County, TX
warn the plaintiff of the dangerous condition. As a result
the plaintiff suffered orthopedic injuries to her leg requiring medical care and casting as well as injury to her
back. The defendant denied that it is was in any way
negligent and argued that the plaintiff failed to
reasonably watch where she was going.
In this premises liability case the plaintiff claims
she was injured when she fell in a hole on a
nature trail at the defendant nature reserve. The
defendant claims that the plaintiff failed to take
actions to maintain her own safety and failed to
watch where she was walking.
The jury found both the plaintiff and defendant liability.
They apportioned 51% negligence to the defendant
and 49% negligence to the plaintiff. The award was
then reduced to account for the plaintiff’s comparative
negligence.
On May 16, 2007, the plaintiff was attending a field trip
as part of her required duties of employment as an employee of the Houston Independent School District. While
traveling on one of the defendant’s nature paths the
plaintiff fell in a depression approximately 10 inches in
diameter and fell backwards. The plaintiff alleged that
the defendant nature center failed to maintain its nature
trails in a safe and reasonable manner and failed to
REFERENCE
Wanda Johnson vs. Armand Bayou Nature Center. Case
no. 200859163; Judge Caroline Baker, 10-28-10.
Attorney for plaintiff: Daniel Horowitz of Abraham,
Watkins, Nichols, Sorrels, Agosto & Friend in
Houston, TX. Attorney for defendant: Willie Ben Daw
of Daw and Ray in Houston, TX.
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RETALIATORY TERMINATION
$525,000 VERDICT
Retaliatory Termination – Princeton cop sues after
retaliation for complaints over treatment which
caused him medical distress – Compensatory and
punitive damages.
Mercer County, TX
In this matter, a 27 year veteran police officer was
forced into retirement by alleged racial
discrimination and retaliation upon an employee.
The defendant claimed that the plaintiff was let go
based on performance, not bias.
In April 2006, the plaintiff brought discrimination charges
against the Princeton Police department before the borough’s Human Services Commission. In his complaint,
the plaintiff cited numerous cases of what he considered racially-motivated discriminatory practices. One
cited incident was the department’s refusal to assign the
plaintiff to an SUV, which he alleged was policy for officers suffering back issues, as he did. Further incidents included requiring other officers to double-check his
reports and removal from a position of authority.
After stating that he would report this behavior as discrimination, an Internal Affairs investigation was commenced in Mid-March of 2006. 57 charges were filed
against the plaintiff, who was then placed on sick leave.
He retired in 2007 in exchange for the dropping of
charges against him. Due to the failure of the then-police chief defendant Anthony F. to appear before the
borough’s Civil Rights Committee, they concluded that
a presumption of discrimination was appropriate. The
plaintiff was thereafter informed by the committee of
their recommendation that he file a complaint.
monies resulting from retiring seven years prematurely.
He further sought punitive damages on the grounds of
egregious conduct on the part of the defendants. Parties named as defendants were the Borough of Princeton, its police department, its then-chief Anthony F. and
five unnamed “John Doe” parties. Chief F. died in 2009.
Over five days of trial the jury of seven heard the plaintiff’s testimony regarding the hostile work environment
and other activities amounting to discrimination. The
plaintiff claimed this was for racially-motivated reasons.
A member of the civil rights committee also testified.
The defendants argued that the plaintiff’s dismissal was
the product of his poor work performance. However, the
plaintiff submitted as evidence work evaluations done
throughout his career that contradicted this contention.
After four hours the jury returned a $525,000 verdict for
the plaintiff, affirming the plaintiff’s retaliation claim, but
not racial discrimination. The verdict included $450,000
in compensatory damages and $75,000 in punitive
damages.
REFERENCE
Gary Mitchell vs. Borough of Princeton, et al. Case no. L001164-08; Judge Paul Innes, 06-10-11.
Attorney for plaintiff: George Daggett of Kraemer,
Eliades, Kovach & Ursin in Sparta, NJ. Attorney for
defendant Borough of Princeton: Michael Herbert of
Herbert, Van Ness, Cayci and Goodell in
Lawrenceville, NJ.
The plaintiff officer filed suit in April 2008 for racial discrimination and retaliation in the Superior Court of New
Jersey, Mercer County. He sought recovery of compensatory damages including the lost benefits and other
The following digest is a composite of additional significant verdicts reported in full detail in our companion
publications. Copies of the full summary with analysis can be obtained by contacting our Publication Office.
Volume 3, Issue 2, September 2011
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Supplemental Verdict Digest
MEDICAL MALPRACTICE
$21,600,000 VERDICT - MEDICAL MALPRACTICE - OB/GYN - NURSING - FAILURE TO
MONITOR BOTH HEART RATES OF TWINS DURING DELIVERY - BRAIN DAMAGE TO A
NEWBORN CHILD - CEREBRAL PALSY.
Erie County, PA
In this medical malpractice case, a family sued on
behalf an infant who suffered cerebral palsy after
a botched delivery. The jury delivered a
subsequent landmark $21.6 million verdict
against the hospital. The delivery occurred on
November 13, 2006, when the plaintiff, 26,
presented at the Hamot Medical Center in Erie,
Pennsylvania, for the scheduled induction of
labor. The plaintiff was pregnant with twins, a girl
and a boy. The nurse midwife administered
Cervidil to induce labor. The midwife, defendant
obstetrician and the nursing staff proceeded with
the labor. However, for reasons that formed the
center of the dispute, the staff did not continually
monitor both of the fetal heart rates. A nurse
delivered the first twin, a girl, while the ob/gyn
was getting into position. During the delivery of
the second child, the fetus shifted into a breech
position. The birth of the boy was delayed by
twenty minutes until the obstetrician and midwife
performed an emergency C-section. Thereafter,
the ob/gyn noticed signs of metabolic acidosis in
the infant boy and placed him in the neonatal
ICU, where he suffered a seizure approximately
two hours later. He was later diagnosed with
cerebral palsy brought on by oxygen deprivation.
The parties reached an agreement pre-trial on a high/
low. No pre-trial settlement offer was made by the defense. The high in this case was $33 million, comprised
of Hamot Medical’s $31 million policy limits and Dr.
Townsend’s $2 million limits. The low was $5.75 million.
The jury deliberated for four hours before returning with a
verdict for the plaintiff. They found Hamot, now UPMC
Hamot, 100% negligent by way of the nursing staff’s failure to monitor the infant’s fetal heart rate and other vital
signs. No negligence was attributed to the co-defendants Dr. Townsend, M.D., and the midwife nurse.
REFERENCE
Graham vs. Hamot, et al. Case no. 12229-2008; Judge
Ernest J. DiSantis, Jr., 04-20-11.
Attorney for plaintiff: Shanin Specter of Kline Specter
in Philadelphia, PA. Attorney for defendant Hamot
Medical Center: David R. Johnson of Thomson
Rhodes & Cowie in Pittsburgh, PA. Attorney for
defendant Dr. Mark E. Townsend: Shannon Poliziani
of Marshall, Dennehey, Warner, Coleman & Goggin
in Pittsburgh, PA. Attorney for defendant Christine
Hornstein: Steven J. Forry of Marshall, Dennehey,
Warner, Coleman & Goggin in Pittsburgh, PA.
$10,500,000 VERDICT - MEDICAL MALPRACTICE - ANESTHESIOLOGY - IMPROPER USE
OF LARYNGEAL MASK AIRWAY RESULTING IN AN UNPROTECTED AIRWAY ASPIRATION OF STOMACH CONTENTS LEADING TO ACUTE RESPIRATORY DISTRESS COMA IN 44-YEAR-OLD FEMALE - NERVE DAMAGE.
New London County, CT
REFERENCE
In this medical malpractice matter, the plaintiff
alleged that the defendant anesthesiologist was
negligent in failing to use due care during the
administration of anesthesia to the plaintiff which
resulted in the plaintiff suffering acute respiratory
distress syndrome and becoming comatose. The
defendant denied that there was any deviation
from acceptable standards of care.
Karla Rosa vs. Anesthesia Associates of New London.
Case no. KNL-CV-08-5006331-S; Judge Emmet
Cosgrove, 05-13-11.
Attorney for plaintiff: Sean K. McElligott of Koskoff
Koskoff & Bieder, P.C. in Bridgeport, CT. Attorney for
defendant: Robert Cooney of Williams Cooney &
Sheehy in Trumbull, CT.
The matter was tried and at the conclusion of the trial,
the jury returned its verdict in favor of the plaintiff and
against the defendant. The plaintiff was awarded the
sum of $10,500,000 in damages.
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SUPPLEMENTAL VERDICT DIGEST
PRODUCTS LIABILITY
$1,570,000 GROSS VERDICT - PRODUCT LIABILITY - DEFECTIVE DESIGN OF LADDER LADDER RETRACTS DURING USE - FALL TO GROUND - HEAD INJURY - TEN-DAY
COMA - WRONGFUL DEATH - 80% COMPARATIVE NEGLIGENCE FOUND.
Miami-Dade County, FL
This was a products liability action against the
manufacturer of a ladder from which the
decedent fell and sustained a fatal head injury.
The plaintiff alleged that the ladder was
defectively designed in that the side pins did not
lock properly, thereby causing it to retract under
the decedent’s weight. The plaintiff also alleged
that the defendant manufacturer was negligent in
the manner in which it manufactured the ladder.
The defendants in the case also included Home
Depot where the ladder had been purchased. The
defendants maintained that the accident was
caused by the decedent’s own negligence in
failing to properly lock the ladder before climbing
it.
The jury found that the ladder in question was not defective, but found that the defendant manufacturer was
negligent. The jury assessed the defendant manufacturer 20% negligent and the decedent 80% comparatively negligent. The plaintiff was awarded $1,570,000 in
damages, which was reduced to a net award of
$314,000. Post-trial motions are currently pending.
REFERENCE
Coba vs. Tricam Industries, Inc. Case no. 07-29041 CA
21; Judge William Thomas, 08-26-10.
Attorneys for plaintiff: Orlando D. Cabeza and Peter
L. DeMahy of DeMahy, Labrador, Drake, Payne &
Cabeza in Coral Gables, FL. Attorneys for defendant:
Jeffrey A. Mowers of Pyszka, Blackmon, Levy,
Mowers & Kelley in Miami Lakes, FL, and Paul Kaulus
(pro hac vice) in Chicago, IL.
$1,500,000 VERDICT - PRODUCTS LIABILITY - FAILURE TO WARN - PLAINTIFF
SNOWMOBILE REVS ENGINE TO CLEAN SPARK PLUGS WHILE LIFTING END OF
VEHICLE - TRACK BREAKS AND STRIKES PLAINTIFF IN LEG - ABOVE-THE-KNEE
AMPUTATION - CASE PREVIOUSLY TRIED AND RESULTED IN AWARDS - DEFENDANT
REJECTS $900,000 ADDITUR AND CASE RETRIED ON ISSUE OF PAIN AND SUFFERING
ONLY.
Morris County, NJ
This case involved a 61-year-old plaintiff who was
visiting a friend in upstate New York for a
weekend of snowmobiling. The plaintiff
contended that the snowmobile was defective for
the failure to warn against the common practice
of cleaning carbon build up on the spark plugs
while revving the engine as the back end of the
snowmobile was held up. The plaintiff contended
that as he and another individual were holding up
the back end of the vehicle while the owner
Volume 3, Issue 2, September 2011
revved the engine with the throttle, the track
broke and was propelled out of the rear and
through the plaintiff’s right leg.
The jury awarded $1,500,000 for pain and suffering.
REFERENCE
Mohr vs. Yamaha Motor Co. Docket no. MRS-L-2068-07;
Judge Robert Brennan, 04-14-11.
Attorney for plaintiff: Herbert M. Korn of Law Offices
of Herbert M. Korn in Morristown, NJ.
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23
MOTOR VEHICLE NEGLIGENCE
$6,000,000 RECOVERY - BUS/PEDESTRIAN COLLISION - PEDESTRIAN STRUCK IN
MIDDLE OF CROSSWALK BY SCHOOL BUS TURNING LEFT FROM BEHIND - PLAINTIFF
DRAGGED 20 FEET BEFORE BUS STOPS WITH WHEEL ON PLAINTIFF - INTENSE
CONSCIOUS PAIN FOR ONE HOUR BEFORE EXTRICATION - BURST THORACIC
FRACTURE - LUMBAR, THORACIC COMPRESSION FRACTURES - THORACIC FUSION SEVERE DEGLOVING INJURY TO LOWER LEG.
Bergen County, NJ
In this action, the femal plaintiff in her mid-20s,
contended that after she had crossed more than
half of the roadway containing one travel lane in
each direction, she was struck by the left side view
mirror of the bus and pulled under the left front
wheel of the bus. The plaintiff contended that as a
result, she suffered a burst fracture in the thoracic
spine, thoracic and lumbar compression fractures,
a severe degloving injury to the lower left leg,
bowel and bladder incontinence that resolved
after some months, and PTSD. The plaintiff has
already undergone some eight major surgeries,
including a fusion in the thoracic area, and the
insertion of a V.A.C. therapy unit to the lower leg,
and contended that she may well require
additional surgery in the future.
The case settled prior to trial for $6,000,000.
REFERENCE
Poplawski vs. Phipps, et al. Docket no. BER-L-3516-09,
02-21-11.
Attorney for plaintiff: Eric D. Katz of Mazie Slater Katz
& Freeman, LLC in Roseland, NJ.
$4,900,000 RECOVERY - MOTOR VEHICLE NEGLIGENCE - AUTO/BICYCLE COLLISION TRACTOR-TRAILER STRIKES BICYCLIST - CATASTROPHIC BRAIN INJURY TO 19-YEAROLD - LIFELONG SUPERVISION REQUIRED.
Miami-Dade County, FL
The plaintiff was a 19-year-old male who was
riding a bicycle across a Perrine, Florida
intersection at 3:19 a.m. in 2006 when he was
struck by a tractor trailer driven by the defendant
truck driver and owned by the defendant trucking
company. The plaintiff alleged that the defendant
truck driver negligently operated the truck and
could have avoided impacting the plaintiff’s
bicycle. The defendants argued that the tractortrailer was proceeding with a green light, within
the legal speed limit, and that the plaintiff
suddenly rode his bicycle into the path of the
oncoming truck. The defendants maintained that
the truck driver was not negligent and could not
have avoided the collision.
The case was settled for a structured settlement valued
at $4,900,000 prior to trial.
REFERENCE
Tiger vs. Defendants. Case no. 09-07908; Judge Peter R.
Lopez, 04-01-11.
Attorney for plaintiff: Joseph Slama of Krupnick,
Campbell, Malone, Buser, Slama, Hancock, Liberman
& McKee in Fort Lauderdale, FL. Attorney for plaintiff:
Frank Toral of Toral & Associate in Fort Lauderdale,
FL.
$1,100,000 RECOVERY - MOTOR VEHICLE NEGLIGENCE - AUTO/PEDESTRIAN
COLLISION - PLAINTIFF STANDING AT CENTER LINE WAITING FOR RIGHT-SIDE
TRAFFIC TO PASS IS STRUCK BY DEFENDANT FROM LEFT - LEFT KNEE FRACTURE SURGERY - LARGE SCARRING BELOW KNEE - KNEE SWELLING AND CALF ATROPHY
NOTED SHORTLY BEFORE TRIAL - SPLEEN LACERATION - RIB FRACTURE.
Queens County, NY
The plaintiff pedestrian, age 25, contended that
after she had walked halfway across the
uncontrolled intersection, and near the area
where the crosswalk would have been present, if
painted, and as she was standing on the double
yellow line waiting for vehicles traveling from her
right to pass, she was struck by the defendant
who was approached from her left. The plaintiff
suffered fractures to the left tibial plateau and
proximal fibular shaft and required an open
reduction and internal fixation. The plaintiff
contended that the large scar below the knee is
permanent. The plaintiff also suffered a lacerated
spleen, fractured ribs, bilateral occipital condyle
fractures and an avulsion injury at the left alar
ligament. These injuries resolved without surgery.
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SUPPLEMENTAL VERDICT DIGEST
The case settled prior to trial for $1,100,000.
Attorney for plaintiff: Ann Ball of A Ball PC in
Commack, NY.
REFERENCE
Steward vs. Levy. Index no. 27669/10; Howard Beldock
(mediator), 06-11-11.
$900,000 VERDICT - MOTOR VEHICLE NEGLIGENCE - SIDESWIPE COLLISION NEGLIGENT LANE CHANGE - ROLL-OFF TRUCK/TRACTOR-TRAILER COLLISION CERVICAL DISC HERNIATIONS WITH FUSION SURGERY - LUMBAR HERNIATION LUMBAR LAMINECTOMY PERFORMED - TOTAL DISABILITY FROM EMPLOYMENT
CLAIMED.
Philadelphia County, PA
The male plaintiff in his late 30s was driving a
roll-off truck (used to transport dumpsters) on the
Blue Route when the collision giving rise to his
action occurred. The plaintiff alleged that a
tractor-trailer, driven by the defendant truck
driver and owned by the defendant transportation
company, negligently changed lanes and collided
with his truck. The defendants took the position
that it was the plaintiff who negligently changed
lanes and caused the accident. The defense also
contended that the impact did not cause the
injuries alleged by the plaintiff.
After a six-day trial, the jury found the defendant 100%
negligent and awarded the plaintiff $900,000 in damages. The case is currently on appeal.
REFERENCE
Thompson vs. Lau, et al. Case no. 09-03-03522; Judge
Nitza I. Quinones Alejandro, 12-10-10.
Attorney for plaintiff: Bruce L. Neff of Neff &
Associates in Philadelphia, PA.
PREMISES LIABILITY
$2,000,000 TOTAL RECOVERY - PREMISES LIABILITY - FALL DOWN - FAILURE OF
DEFENDANTS TO ADEQUATELY REMOVE SNOW AND ICE - DECEDENT WITH CARDIAC
CONDITION SLIPS AND FALLS - SUBDURAL HEMATOMA - ALLEGEDLY SUFFERS
“LOCKED IN SYNDROME” UNTIL DEATH TWO YEARS LATER - PORTEE CLAIM.
U.S. District Court, Newark District of NJ
In this case, the plaintiff contended that the
defendant Postal Service negligently failed to
adequately attend to icy conditions stemming
from alternate melting and freezing temperatures
that occurred in the three-day period since the
last snow event. The plaintiff also contended that
the co-defendant automobile dealership, situated
next to and uphill from the post office, negligently
failed to clear snow and ice from and around of
vehicles it kept parked on the sidewalk. The
plaintiff maintained that the 78-year-old
decedent, who was taking Coumadin, slipped and
fell, suffering a closed head trauma and subdural
hematoma. The plaintiffs also included the
decedent’s son, approximately 40, who was sitting
in his father’s car and saw the incident, and who
made an emotional distress claim under Portee vs.
Jafee.
Volume 3, Issue 2, September 2011
The case settled in 2010 for $1,500,000 from the Postal
Service and $500,000 from the co-defendant. Magistrate Judge Patty Shwartz approved the allocation of the
proceeds in February 2011 as follows: $1,064,546 to the
estate, $25,000 each to the decedent’s three children,
and $25,000 on the Portee claim. Plaintiff’s counsel relates that another $260,581 was used to satisfy liens that
were reduced from approximately $1,000,000.
REFERENCE
Fogelson vs. U.S.A., et al. Docket no. 2:07-CV-01016-kshps; Judge Pamela Nadell, Esq. (mediator), 02-10-11.
Attorney for plaintiff: Francis M. Smith of FM Smith,
PC in Mountainside, NJ.
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25
$1,480,000 VERDICT - PREMISES LIABILITY - FALL DOWN - PLAINTIFF EXITS
PASSENGER SIDE OF CAR IN CAR WASH - SLIP AND FALL ON SOAPY WATER CLOSED HEAD TRAUMA - MILD TBI - COGNITIVE DEFICITS - TEAR OF DOMINANT
ROTATOR CUFF - ARTHROSCOPIC SURGERY - CERVICAL HERNIATION - INDICATION
FOR SURGERY.
Kings County, NY
This case involved a plaintiff, in her mid 50s, who
was a passenger in a car that was brought to the
defendant’s car wash and who slipped and fell as
she was exiting the car. The plaintiff contended
that although the defendant should be required to
have the area for individuals exiting vehicles
delineated as behind the “zipper drain” that is
required to separate solvents from water before it
enters the water system, it did not do so because
of lack of space and that it should have placed
safeguards, such as rubber mats and/or warning
signs, immediately outside of the point patrons
would be exiting vehicles. The plaintiff maintained
that as she exited, she slipped and fell. The
plaintiff contended that she suffered a closed
head injury that caused a mild TBI manifesting in
headaches and extensive difficulties with memory
and concentration. The plaintiff further contended
that she suffered a rotator cuff tear to the right,
dominant shoulder that required arthroscopic
surgery and a cervical herniation for which
surgery is indicated.
The jury found the defendant 100% negligent and
awarded $1,480,000.
REFERENCE
Rogers vs. Hi-Tek United Corp. Index no. 014717/08;
Judge Kenneth P. Sherman, 02-04-11.
Attorney for plaintiff: Herbert Rodriguez, Jr. of
Schwartz Goldstone & Campisi, LLP in New York, NY.
$1,276,000 RECOVERY - PREMISES LIABILITY - HAZARDOUS PREMISES - ONE TON
LOAD OF PIPE FALLS ON PLAINTIFF FROM FORKLIFT - SEVERE CRUSH INJURIES AMPUTATION.
Bexar County, TX
In this action for active negligence and premises
liability, the plaintiff alleged that the defendants’
combined negligence caused him to incur severe
crush injuries necessitating amputation. The
defendants generally denied the allegations and
claimed that the plaintiff was guilty of contributory
negligence.
Ultimately, this matter settled at mediation with a
$1,276,000 recovery for the plaintiff.
REFERENCE
Edward Schmidtka vs. DPT Laboratories, Ltd., Greatwide
Cheetah Transportation, LLC and Michael McCurry.
Case no. 2009-CI-13588; Judge Karen Pozza, 01-28-11.
Attorneys for plaintiff Edward Schmidtka: Rudy A.
Garza and Stephen F. Lazor of Garza & Lazor, P.C. in
San Antonio, TX. Attorneys for defendant Greatwide
Cheetah Transportation, LLC and Michael McCurry:
Michael B. Langford (Pro Hac Vice) of Scopelitis,
Garvin, Light, Hanson & Feary, P.C. in Indianapolis,
IN, and Darrell F. Smith of Ball & Weed in San
Antonio, TX. Attorney for defendant DPT
Laboratories, Ltd., Defendant and Third-Party
Plaintiff: Jennifer Gibbons-Durbin of Allen, Stein &
Durbin, P.C. in San Antonio, TX. Attorney for
defendant DCI, Inc. (Third-Party Defendant): Mark S.
Strandmo of Brock Person Guerra Reyna P.C. in San
Antonio, TX. Attorney for defendant Gilbert
Industries, Inc. d/b/a GS Stainless (Third Party
Defendant): Sean M. Crowley of Thompson Coe
Cousins & Irons LLP in Austin, TX.
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26
SUPPLEMENTAL VERDICT DIGEST
ADDITIONAL VERDICTS OF INTEREST
Employment Law
$506,000 VERDICT - GENDER DISCRIMINATION - RETALIATORY DISCHARGE PLAINTIFFS CLAIM THAT DEFENDANT SUPERVISOR AND EMPLOYER DISCRIMINATED
AGAINST THE PLAINTIFFS AND RETALIATED AGAINST THEM FOR COMPLAINING
ABOUT THE DISCRIMINATION - FAILURE TO PROMOTE QUALIFIED PLAINTIFF OVER
LESS QUALIFIED MALE CANDIDATE - DEMOTION - ASSIGNMENT OF DUTIES LESS
THAN THOSE ASSIGNED TO MALE EMPLOYEES - FAILURE TO GIVE SUPERVISORY
RESPONSIBILITIES.
Suffolk County, MA
The plaintiffs, who worked for the defendant
district court probation office, one as an assistant
chief probation officer and the other as a
probation officer, contended that the defendants,
a chief probation officer and the court for which
he worked, discriminated against the plaintiffs on
the basis of gender and race. The plaintiffs and
three other female employees had previously filed
a written complaint against the defendant chief
and the probation office for racial and gender
discrimination and retaliation. A six month
investigation into the charges by the trial court’s
Affirmative Action/Equal Opportunity Office
resulted in a draft report substantially admitting
the allegations made by the plaintiffs.
The jury found no discrimination against the first plaintiff,
but did find retaliation against her and awarded her
$6,000 in damages, as well as $500,000 in punitive
damages. No discrimination or retaliation was found
against the second plaintiff and the jury awarded her no
damages.
REFERENCE
Brown, et al. vs. O’Brien, et al. Case no. SUCV200703552, 02-09-11.
Attorney for plaintiff: Beth R. Myers of Rogers,
Powers & Schwartz LLP in Boston, MA.
Fraud
$7,120,000 VERDICT - FRAUD - SHIPPING COMPANY IS SUED BY SHIPPING PARTNER
FOR FRAUDULENT INDUCEMENT.
Dallas County, TX
This multi-million dollar case saw the successful
suit of a global shipping firm by one of its
resellers. The reseller received over $7 million in
a verdict for fraudulent inducement and theft of
trade secrets. The jury additionally rejected the
defendant’s $28 million in counterclaims.
Worldwide Express Operations is a domestic
reseller of shipping services based in Dallas.
Worldwide Express, the plaintiff in this case, had
been in a nine-year contract since 1999 with the
defendant, DHL Express, acting as a sales force
for the defendant shipping company. The contract
was amended in the fall of 2008 to add an
additional two years to that contract. However,
the contract also involved the addition of a
termination clause. Said clause would allow DHL
to terminate the contract with only 90 days notice.
On November 10, 2008, less than 30 days after
the signing, DHL announced that it was
terminating its domestic shipping service and its
contract with Worldwide Express.
Worldwide Express filed suit in the 192nd District Court of
Dallas County for fraudulent inducement, naming DHL
as the defendant. DHL was accused of defrauding
Worldwide Express by way of inducing them to sign a
contract for services they would have no further use for.
Volume 3, Issue 2, September 2011
Worldwide Express further accused DHL of theft of trade
secrets, specifically through solicitation the plaintiff’s
international customers.
On June 2, 2011, after nine trial days and a day and ahalf of deliberation, the jury returned a verdict for the
plaintiff, finding that Worldwide Express had been induced to amend their contract by way of fraud. The jury
awarded $5.1 million for past and future lost profits, as
well as $2.02 million in damages for DHL’s misappropriation of trade secrets. The jury further rejected DHL’s request for $28 million in damages for breach of payment
guarantee.
REFERENCE
Worldwide Express Operations LLC, et al. vs. DHL Express
(USA) Inc. Case no. DC-08-15314; Judge Craig Smith,
06-02-11.
Attorney for plaintiff: Geoffrey S. Harper, Steve
Stodghill, Timothy Devlin, Scott C. Thomas, and John
C.C. Sanders of Fish & Richardson in Dallas, TX.
Attorney for plaintiff DHL Express (USA) Inc.: Michael
H. Collins of Locke Lord Bissell & Liddell LLP in
Dallas, TX. Attorney for defendant Worldwide
Express Operations LLC: Tom Melsheimer of Fish &
Richardson in Dallas, TX.
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27
$500,000 COMBINED VERDICT - FRAUD - INTENTIONAL INTERFERENCE WITH
CONTRACT BY INSURANCE COMPANY - BREACH OF GOOD FAITH AND FAIR
DEALING - PRODUCTION OF BACK-DATED UM/UIM WAIVER FORMS - LOSS OF USE
OF INSURANCE FUNDS - EMOTIONAL DISTRESS TO TWO POLICE OFFICERS.
Philadelphia County, PA
This case involved allegations that fraud was
committed by the defendants, Bristol Township, its
insurance broker and several individual insurance
agents, involved in issuing the township’s
automobile insurance coverage. The plaintiffs
were two Bristol Township police officers who
were injured in the line of duty by an uninsured
driver. The plaintiff alleged that the defendants
committed fraud, as well as intentional
interference with contract and breach of their duty
of good faith and fair dealing by back-dating the
township’s UM/UIM waiver forms in an attempt to
prevent the plaintiffs from recovering uninsured
motorist benefits. The plaintiffs’ uninsured
motorist claims were settled after it was
discovered that the waiver forms had been backdated and were, therefore, invalid. The plaintiffs
sought economic damages for an 11 month delay
allegedly caused by the defendants’ fraud. The
plaintiff also sought compensatory damages for
emotional distress and punitive damages based
on the defendants’ actions. The defendants
argued that Bristol Township did not want UM/
UIM coverage and did not pay for such coverage.
After a trial of almost three weeks, the jury found fraud,
intentional interference with contractual relations and
breach of the duty of good faith and fair dealing
against the insurance broker and two of its employees.
The jury awarded $250,000 to each plaintiff for a total
combined verdict of $500,000. The award included
$55,000 in economic damages and $195,000 in emotional distress damages to each plaintiff. The court dismissed the plaintiffs’ claim for punitive damages. Posttrial motions are pending.
REFERENCE
Egan vs. USI MidAtlantic, Inc. Case no. 060703444;
Judge Gregory E. Smith, 03-16-11.
Attorneys for plaintiff: Mark W. Tanner and Peter M.
Newman of Feldman Shepherd, Wohlgelernter,
Tanner, Weinstock & Dodig, LLP, in Philadelphia, PA.
Attorneys for plaintiff: Gerald A. McHugh, Jr. and
Daniel Bencivenga of Raynes McCarty in
Philadelphia, PA.
Jones Act
$1,650,000 VERDICT - JONES ACT - ADMIRALTY - FAILURE TO MAINTAIN FISHING
VESSEL IN A SEAWORTHY CONDITION - TRIP AND FALL ON OIL - TORN ROTATOR
CUFF - RUPTURED LEFT BICEP TENDON.
U.S. District Court, District of MA
REFERENCE
In this admiralty matter, the plaintiff brought suit
under the Jones Act for injuries he sustained
when he slipped and fell as a result of oil on the
deck of the defendant’s boat. The defendant
denied the incident and disputed any liability to
the plaintiff.
James B. Crook vs. Warren Alexander d/b/a Hawk Scallop Company, Inc. Case no. 1:09-CV-10682; Judge Rya
W. Zobel, 01-28-11.
Attorneys for plaintiff: Carolyn Latti and David
Anderson of Latti & Anderson in Boston, MA.
The matter was tried and the jury deliberated for a little
over three hours before returning its verdict in favor of
the plaintiff and against the defendant. The jury
awarded the plaintiff the sum of $1,650,000 in
damages.
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Libel
$1,100,000 VERDICT - DEFAMATION - LIBEL - SON OF A TEXAS DEPUTY SUES
NEWSPAPER AFTER ARTICLE ACCUSES HIM OF BENEFITING FROM CORRUPTION DAMAGE TO PLAINTIFF’S REPUTATION.
Fort Bend County, TX
In this case, the plaintiff, 27, the son of a Chief
Deputy of the Fort Bend County Sheriff’s Office,
sued a local newspaper and one of its reporters
for defamation. The defendants denied that the
article was false and defamatory; they contended
that the article concentrated on public figures
rather than the plaintiff, and therefore did not
damage his reputation.
After eight days of trial, the jury returned a verdict for the
plaintiff, finding the article as a whole to be false and
defamatory as to the plaintiff, as well as certain individual (but unspecified) statements within the article. The
jury awarded $30,000 in damages to reputation,
$20,000 in mental anguish damages, and $1,030,000
in punitive damages ($30,000 against the reporter, and
$1,000,000 against the West Fort Bend Star on a theory
of “imputed malice”).
REFERENCE
Wade Brady vs. LeaAnne Klentzman and Carter Publications d/b/a The West Fort Bend Star. Case no. 03-CV129531; Judge Thomas R. Culver III, 05-06-11.
Attorney for plaintiff Wade Brady: Kinan H. Romman
of Ahmad, Zavitsanos & Anaipakos, PC in Houston,
TX. Attorney for defendant: John K. Edwards of
Jackson Walker LLP in Houston, TX.
Negligent Supervision
$1,750,000 RECOVERY - NEGLIGENT SUPERVISION - NEGLIGENT RETENTION OF
CONDOMINIUM COMPLEX EMPLOYEES - PLAINTIFF ATTACKED WITH ACID - FACIAL
BURNS AND DISFIGUREMENT - BLINDNESS IN ONE EYE.
Broward County, FL
This case involved a horrific and hateful acid
attack which left the female plaintiff disfigured
and blinded in one eye. The attacker was
sentenced to ten years in prison for aggravated
battery and was not a party to the civil action. The
plaintiff’s case hinged on the culpability of the
defendant homeowner association and property
management company for alleged negligent
supervision and retention of its employees. There
was alarming evidence that the plaintiff’s
husband, her assailant and their supervisor
routinely engaged in drinking sessions at work
and that extramarital sexual activity occurring at
the workplace was accepted, if not facilitated. The
defendants maintained that the attack upon the
plaintiff was not foreseeable and that it had acted
appropriately in terminating the attacker prior to
the incident.
Volume 3, Issue 2, September 2011
There was an issue as to whether the plaintiff’s former
husband would have been listed as a Fabre defendant
on the verdict form, as the husband was the defendant’s employee. In the end, the case was of such a
volatile nature and the plaintiff’s injuries so gruesome,
that a $1.75 million settlement was reached with a minimum of publicity in order to avoid trial.
REFERENCE
Lambert vs. Defendants. Case no. 04-009433; Judge
David Krathen, 10-20-10.
Attorneys for plaintiff: Lou Battista and Yeemee Chan
of Toral, Garcia & Battista in Fort Lauderdale, FL.
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