1. society
2. crime
3. personal offense
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SUMMARIES
WITH TRIAL
ANALYSIS
Volume 26, Issue 9
September 2011
$29,100,000 VERDICT – Medical Malpractice – Nursing Home Negligence – Plaintiff alleges reckless delay
in treatment of bedsore resulted in death of her mother . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
$9,500,000 RECOVERY – Medical Malpractice – Hospital Negligence – Mismanagement of labor and
failure to consult with obstetrician results in cerebral palsy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
$4,000,000 CONFIDENTIAL RECOVERY – Medical Malpractice – Hematology – Discontinuation of
antibiotics results in irreversible coma in 49-year-old neutropenic leukemia patient . . . . . . . . . . . . . . . . . . . . 4
$3,762,500 VERDICT – Medical Malpractice – Hospital Negligence – Failure to properly supervise physician’s
assistants – Failure to order routine diagnostic testing – Failure to diagnose blastomycosis – Death of 25-year-old . . . 5
A monthly Nationwide
review of State and
Federal civil jury verdicts
with professional analysis
and commentary.
The cases summarized in
detail herein are obtained
from an ongoing monthly
survey of the State and
Federal civil courts
throughout the United
States.
$1,350,000 PRESENT VALUE RECOVERY – Medical Malpractice – Ob/Gyn – Hospital Negligence
– Failure to offer option of C-section to high risk patient – Erb’s palsy – Shoulder dystocia . . . . . . . . . . . . . . . . 6
DEFENDANT'S VERDICT – Medical Malpractice – Surgery – Wrongful death – Plaintiffs allege defendants
deviated from standard of care – Sepsis and acute respiratory distress syndrome after cholocystectomy . . . . . . . . . . 7
$24,300,000 VERDICT FOR MINOR PLAINTIFF – Employer’s Liability – Defendant vicariously
liable for driver negligently pinning child under tires of tractor-trailer – Degloving and orthopedic injuries. . . . . . . . 8
$8,300,000 RECOVERY – Contract – Breach of exclusive sales agreement in ceasing communication,
refusal to pay sales commission – Defendant additionally hires former plaintiff’s employee to set up own sales force . . 10
$4,400,000 RECOVERY – Product Liability – Failure to Warn – Inadequate shut down devices and
warnings cause plaintiff to be crushed by 3,400 paver bricks weighing over 1 1/2 tons – Multiple fractures to chest . . . 11
DEFENDANTS’ VERDICT – Product Liability – Failure to warn of potentially toxic fumes. . . . . . . . . . 12
VERDICTS BY
CATEGORY
Medical Malpractice (10)
Anesthesiology . . .
Cardiology . . . . .
Dental . . . . . . .
Hospital Negligence
Ob/Gyn . . . . . .
Orthopedics . . . .
Plastic Surgery . . .
Primary Care . . . .
Surgery. . . . . . .
Premises Liability (8)
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Product Liability (2)
Defective Design . . . . . . . . 19
Failure to Warn. . . . . . . . . 20
Motor Vehicle Negligence (9)
Auto/Pedestrian Collision .
Intersection Collision . . .
Left Turn Collision . . . .
Multiple Vehicle Collision .
Rear End Collision . . . .
Single Vehicle Collision . .
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Fall Down . . . . . . .
Falling Object . . . . .
Hazardous Premises . .
Negligent Maintenance .
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Additional Verdicts of Interest (11)
Civil Rights . . . . . . .
Consumer Fraud . . . .
Contract . . . . . . . .
F.E.L.A. . . . . . . . . .
Fraud. . . . . . . . . .
Municipal Liability . . .
Negligent Supervision .
Personal Negligence . .
Racial Discrimination . .
Transit Authority Liability
Wrongful Termination .
Copyright 2011 Jury Verdict Review Publications Inc.
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2
Summaries with Trial Analysis
$29,100,000 VERDICT – MEDICAL MALPRACTICE – NURSING HOME NEGLIGENCE –
PLAINTIFF ALLEGES RECKLESS DELAY IN TREATMENT OF BEDSORE RESULTED IN
DEATH OF HER MOTHER.
Sacramento County, California
In this elder neglect action, the plaintiff alleged
that the nursing home staff’s reckless delay in
obtaining treatment for her mother resulted in her
mother’s death. The defendant nursing home and
its parent company generally denied the
allegations, arguing that, at all times, that the
nursing home staff acted reasonably in response
to the decedent’s condition.
In March 2005, the 79-year-old decedent became a
resident at the defendant nursing home, Colonial
Healthcare. At that time, the decedent was diagnosed with Alzheimer’s disease. In September, she
suffered a broken hip due to a fall. Eight days later,
the decedent was diagnosed with a hip fracture and
a bedsore was discovered. Although she underwent
surgery for the fracture, the decedent passed away a
few weeks later due to an infection from the bedsore.
As a result of her mother’s death, the plaintiff brought
this action against the defendant nursing home and
its parent company, Horizon West, Inc. (the “defendants”). In an initial bifurcated court trial, the Court
held all corporate defendants to be alter egos of the
defendant nursing facility. Thereafter, the matter proceeded on the substantive issues of recklessness and
wrongful death.
The plaintiff alleged that defendants recklessly delayed in assessing and obtaining treatment for her
mother’s fractured hip. The plaintiff further alleged
that the defendants’ recklessness was thereafter compounded by their failure to prevent the decedent
from developing the bedsore which later became infected and lead to her mother’s death. These claims
were supported by the opinion testimony of the plaintiff’s expert in nursing who testified that both the delay
and the pressure sore were substantial factors in
causing the decedent’s death.
Consequently, the plaintiff’s complaint contained
counts for both wrongful death and statutory damages pursuant to California’s Elder Abuse Act, arguing
that that the defendants’ failures were the consequence of extreme under-staffing at the defendant
nursing home. In addition, the plaintiffs challenged
the defendant parent company’s ethics insofar as
they contended that the defendant, an owner of
over 33 nursing homes, was guilty of participating in a
corporate culture that prioritized profits over patient
care. These allegations were supported, in part, by
extensive video evidence from the depositions of the
defendant nursing home’s staff, as well as defense
experts.
The defendants denied the allegations arguing, instead, that the nursing home staff members acted in
a reasonable manner and in accordance with the
accepted standard of care with regard to the decedent’s condition after her fall. Further, the defendants
argued that they were not responsible for the bedsore because it occurred after the decedent had left
the nursing home.
Ultimately, after a 25 day trial, the jury awarded the
plaintiff a total sum of $29,100,000. This sum consisted of $1,100,000 in compensatory damages,
$800,000 for the decedent’s pain and suffering,
$300,000 in damages for the decedent’s daughter
on her wrongful death claim and $28,000,000 in punitive damages. In addition, statutory attorneys’ fees
pursuant to California’s Elder Abuse Act were left to
be determined by the court.
REFERENCE
Plaintiff’s geriatrics expert: Kathryn Locatell, M.D.
from Placerville, CA. Plaintiff’s nursing expert:
Roberta Block, R.N. from Sacramento, CA.
Defendant’s geriatrics expert: Stephen Grossman,
M.D. from Fresno, CA. Defendant’s nursing experts:
Sue Altamirano, R.N. from Exeter, CA, and Jerilyn
Ratto, R.N. from Stockton, CA.
Tanner, et al. vs. Horizon West, Inc., et al. Case no.
06AS04261; Judge Ronald L. Candee.
Attorneys for plaintiff: Edward P. Dudensing (lead
counsel) of The Law Office of Edward P. Dudensing
in Sacramento, CA, and Jay P. Renneisen (second
chair) of Nursing Home & Elder Abuse Law Center in
Walnut Creek, CA. Attorney for defendant: Michael J.
LeVangie of Prout - LeVangie in Sacramento, CA.
COMMENTARY
The plaintiff’s lead counsel, Mr. Edward P. Dudensing, attributes
this generous jury award to a number of factors. First, counsel believes that maintaining a respectful and humble demeanor
throughout trial assisted in making the jury comfortable with
awarding a significant amount. Also, counsel points out that the
jury was presented with a plethora of evidence that the defendant
did prioritize profit over patient care. Thus, the jury was not only
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SUMMARIES WITH TRIAL ANALYSIS
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presented with misconduct, but was also given a reason why that misconduct occurred.
Counsel believes offering such an explanation was important in this case and is important
in influencing a jury, generally.
In addition, Mr. Jay P. Renneisen, who second chaired this trial, points out that this $29.1
million award represents the largest plaintiff’s injury verdict in Sacramento County history.
It is notable that prior settlement negotiations included a final demand by the plaintiffs for
$650,000, which was met by the defendant’s offer of a mere $30,000.
Mr. Renneisen attributes this verdict to the fact that the jury questioned the defense’s credibility and ultimately was able to discern fact from fiction. For example, the jury was presented with a number of material misstatements in declarations that were submitted by two
of the defendants’ experts during the motion practice which preceded trial. The jury clearly
took this type of evidence into consideration.
$9,500,000 RECOVERY – MEDICAL MALPRACTICE –
HOSPITAL NEGLIGENCE – MISMANAGEMENT OF
LABOR AND FAILURE TO CONSULT WITH
OBSTETRICIAN RESULTS IN CEREBRAL PALSY.
Cook County, Illinois
In this medical malpractice matter, the plaintiff alleged that the
nurse midwife and the labor and delivery staff at the hospital were
negligent, which negligence caused birth injuries resulting in
cerebral palsy. The defendants denied that there was any deviation
from acceptable standards of care.
On October 28, 1996 at approximately 1:45 a.m. the nine month pregnant mother presented to the labor and delivery unit at the defendant
hospital. The defendant, a certified nurse midwife, was alerted to the
mother’s arrival and examined her. According to the defendant’s own
policies, the defendant nurse midwife is required to have an obstetrician
as a sponsor and employer. The sponsoring obstetrician was out of the
country and another doctor, the defendant was covering.
During early labor, there were incidents of intermittent fetal heart decelerations which were indicative of intermittent umbilical cord compression. After each deceleration, the fetal heart rate returned to normal. The
defendant midwife was alerted to this fact. At approximately 8:06 a.m.
the defendant midwife performed a vaginal examination. At 9:20 a.m.
the mother began pushing and the fetal heart monitor tracing was lost.
14 minutes later, the defendant observed a drop in fetal heart rate. The
plaintiff contended that the defendant failed to alert the backup obstetrician of this fact and continued on with the labor and delivery of the
infant.
At 9:36 a.m. the midwife told the mother to push with more force, resulting in another deceleration of the fetal heart rate for approximately 1012 minutes. The midwife attempted to perform a rapid vaginal delivery
and resorted to the use of fundal pressure. The defendant midwife applied pressure three times for each of the remaining eight contractions.
The plaintiff was born at 10:05 a.m. with signs of oxygen deprivation. He
was diagnosed with cerebral palsy.
The plaintiff brought suit against the defendant hospital, the nurse midwife and the covering obstetrician. The plaintiff alleged that the nurse
midwife was not properly supervised, the covering obstetrician was not
overseeing the nurse midwife and the nursing and labor staff failed to intercede and call for medical assistance in light of the fetal heart rate decelerations. The plaintiff alleged that this was in violation of hospital
policy.
The defendants denied the allegations. The defendant midwife maintained that she did request obstetrical intervention. The defendants denied that there was any deviation from acceptable standards of care.
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SUMMARIES WITH TRIAL ANALYSIS
The parties agreed to mediate the matter and a settlement was negotiated during mediation for the sum
of $9,500,000.
REFERENCE
Plaintiff’s economist expert: Charles Linke, Ph.D.
from Champaign, IL. Plaintiff’s life care planner
expert: Henry Brennan, Jr., M.S., S.L.P. from
Westchester, IL. Plaintiff’s maternal fetal medicine
expert: Catalin S. Buhimschi, M.D. from New Haven,
CT. Plaintiff’s neonatology expert: Howard Stein,
M.D. from Toledo, OH. Plaintiff’s neuroradiology
expert: Robert Zimmerman, M.D. from Philadelphia,
PA. Plaintiff’s Ob/Gyn expert: Frank J. Bottiglieri,
M.D. from Towson, MD. Plaintiff’s obstetrical nurse
expert: Laura Mahlmeister, R.N., Ph.D. from Belmont,
CA. Plaintiff’s obstetrical nurse midwife expert:
Pamela Kelly, R.N., C.N.M. from Tampa, FL. Plaintiff’s
pediatric neurology expert: Alan Hill, M.D. from
Vancouver. Plaintiff’s physical medicine and
rehabilitation expert: Richard Bonfiglio, M.D. from
Murrysville, PA. Defendant’s certified nurse midwife
expert: Elisabeth Howard, Ph.D., C.N.M. from
Providence, RI. Defendant’s economist expert: John
Scarbrough, Ph.D. from Ridgefield, CT. Defendant’s
life care planner expert: Cathlin Vinett, R.N. from
Brentwood, TN. Defendant’s maternal fetal medicine
expert: Fred Harlass, M.D. from El Paso, TX.
Defendant’s Ob/Gyn expert: James Smith, M.D. from
Arlington Heights, IL. Defendant’s obstetrical nurse
experts: Bonnie Chez, R.N.C., M.S.N. from Tampa,
FL, and Marcia Patterson, R.N. from Naperville, IL.
Defendant’s pediatric neurology expert: Stephen
Glass, M.D. from Woodinville, WA. Defendant’s
placental pathology expert: Geoffrey Machins, M.D.
from Victoria.
The Private Bank as Guardian of the Estate of Patrick
Ryan O’Came, a minor vs. Sherman Health Systems,
et al. Case no. 04L5058; Judge Jennifer DuncanBrice.
Attorney for plaintiff O’Came: Barry R. Chafetz,
Margaret M. Power & Shawn Kasserman of Corboy &
Demetrio P.C. in Chicago, IL.
COMMENTARY
The recovery represented payment of $7,500,000 by the defendant
hospital, $1,000,000 from the nurse midwife and her practice and
$1,000,000 from the covering obstetrician. The plaintiff alleged
that the actions of the nurse midwife deviated from hospital policy
in that she did not have the backup of her sponsoring obstetrician.
No one attempted to contact the mother’s regular obstetrician and
there was no obstetrician at the hospital at the time that this
incident occurred.
The plaintiff further contended that the midwife used fundal pressure which is a very risky procedure and only should be used as a
last resort when the fetus is lodged in the birth canal. The plaintiff
was still high in the uterus when the defendant initiated this procedure. The plaintiff maintained that the use of fundal pressure was
a deviation from acceptable standards of care by the defendant
midwife.
In addition, the plaintiff alleged that the midwife failed to use a
procedure called intrauterine resuscitation which can be ordered by
a nurse midwife without a physician present. This procedure, which
involved ceasing the pushing and giving the mother oxygen and intravenous fluids while she is in a sideways position, is intended to
relieve the compression on the umbilical cord and restore oxygen
to the fetus. The plaintiff alleged that failure to implement this
procedure and the continuation of the pushing caused a 15-minute
period where the infant plaintiff had no oxygen.
$4,000,000 CONFIDENTIAL RECOVERY – MEDICAL MALPRACTICE – HEMATOLOGY –
DISCONTINUATION OF ANTIBIOTICS RESULTS IN IRREVERSIBLE COMA IN 49-YEAROLD NEUTROPENIC LEUKEMIA PATIENT.
San Bernardino County, California
The 49-year-old female plaintiff suffered from
approximately four weeks of fever. She was
ultimately diagnosed with acute myelogenous
leukemia with the presence of the Philadelphia
chromosome in February 2002. She was
commenced on empiric antibiotics consisting of
Fortaz and Gentamicin on February 26, 2002. She
was also started on induction chemotherapy in the
form of Idarubician and Cytarabine two days later
for a period of seven days. She started on a
regimen of Decadron for three days at the dosage
of 20 mg a day. The plaintiff’s neutrophil count
fell to very low levels as expected due to the
chemotherapy she was receiving.
Since the plaintiff was no longer feverish, the antibiotic regimen was discontinued on March 6th, yet the
plaintiff’s neutrophil count continued to fall. Three
days later, the plaintiff spiked a fever of 103. A blood
culture was immediately performed and she was
Volume 26, Issue 9, September 2011
placed back on the antibiotics. The cultures grew out
alpha strep viridans. Within 24 hours of re-developing
the fever, the plaintiff lapsed into a coma. The diagnosis was septic encephalopathy or bacterial meningitis caused by the alpha strep viridans bacteria.
The plaintiff is presently in a vegetative state and is
fed through a G-tube. The plaintiff brought suit
against the defendant alleging negligence. The
plaintiff alleged that it was negligent for the defendant to remove the plaintiff from the antibiotics until
she was both afebrile and no longer neutropenic. The
plaintiff alleged that she became septic as a result of
the discontinuation of the antibiotics. The plaintiff alleged that if the antibiotics had been continued, the
plaintiff would not have become septic and lapsed
into the irreversible coma.
The defendant denied the allegations of negligence.
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SUMMARIES WITH TRIAL ANALYSIS
dant further maintained that this was most likely an
idiopathic reaction to the chemotherapy drugs. The
defendant argued that there was no proof that the
alpha strep viridans penetrated the blood-brain
barrier.
The matter was resolved for the sum of $4,000,000 in
a confidential agreement following the second round
of mediation.
REFERENCE
Plaintiff’s forensic economist expert: Darryl Zengler
from Pasadena, CA. Plaintiff’s hematology expert:
Gary Schiller, M.D. from Los Angeles, CA. Plaintiff’s
infectious disease expert: Michael W. Fitzgibbons,
M.D. from Santa Ana, CA. Plaintiff’s life care planner
expert: Anne Barnes, R.N. from Los Angeles, CA.
Plaintiff’s neurology expert: Edwin Amos, MD from
Santa Monica, CA. Plaintiff’s neuroradiology expert:
Jerome Barakos, M.D from San Francisco, CA.
Plaintiff’s physical medicine and rehabilitation
expert: Sharon Kawai, M.D. from Fullerton, CA.
Defendant’s forensic economist expert: Mike Adams,
Ph.D. from San Marino, CA. Defendant’s internal
medicine and infectious disease expert: Douglas
Cable, M.D. from Newport Beach, CA. Defendant’s
internal medicine/hematology/oncology expert:
Edwin Jacobs, M.D. from Sherman Oaks, CA.
Defendant’s life care planner expert: Linda Olzack,
R.N., B.S.N. from Atwater, CA. Defendant’s
neurology expert: Arthur Kowell, M.D. from Encino,
CA. Defendant’s neuroradiology/radiology expert:
Wallace W. Peck, M.D. from Newport Beach, CA.
Defendant’s nursing expert: Mary Lopez, R.N. from
Chino Hills, CA.
Plaintiff vs. Defendant.
5
Attorney for plaintiff: Daniel M. Hodes of Hodes
Millman LLP in Irvine, CA. Attorneys for defendant:
Robert Warford and Eileen S. Lemmon of Reback
McAndrews Kjar Warford & Stockalper LLP in
Manhattan Beach, CA.
COMMENTARY
The plaintiff, who was 49 years old at the time, had been employed
as a kitchen helper at one of her children’s schools. She had recently received her Associates degree in paralegal certification and
was applying for jobs as a paralegal at the time that this incident
occurred. She suffers from quadraparesis and requires 24 hour
around-the-clock care for her condition and will for the remainder
of her life. The plaintiff argued that the plaintiff’s life expectancy
was that of a normal female of her age. The defendant disputed
the issue of life expectancy and maintained that given the plaintiff’s diagnosis, she would have had, at the outside, a ten year
survival rate.
While the case had been commenced in 2003, the plaintiff could
not secure counsel for three and one-half years. The plaintiff acted
In pro Per during that time. After the plaintiff secured the services
of the plaintiff’s attorneys in this matter, the matter was moved
forward and mediation was undertaken. The matter underwent two
mediation sessions and it was resolved at the second mediation
session.
A point of contention between the plaintiff and the defendant was
the standard of care that was applicable in this matter. The plaintiff argued that a university hospital setting demanded that the
plaintiff should not have been removed from the antibiotics until
she was both afebrile and no longer neutropenic. The defendant
disagreed and maintained that the appropriate standard of care
was a community standard which deemed that the hematologist
was permitted to discontinue the use of antibiotics when the patient
was not longer febrile in the exercise of good and sound medical
judgment, which is what occurred in this matter.
$3,762,500 VERDICT – MEDICAL MALPRACTICE – HOSPITAL NEGLIGENCE – FAILURE
TO PROPERLY SUPERVISE PHYSICIAN’S ASSISTANTS – FAILURE TO ORDER ROUTINE
DIAGNOSTIC TESTING – FAILURE TO DIAGNOSE BLASTOMYCOSIS – DEATH OF 25YEAR-OLD PATIENT.
Brown County, Wisconsin
The 25-year-old male decedent presented to the
defendant health facility on two separate
occasions for treatment. The first was on
December 15, 2003 when the decedent presented
with complaints of a ten day history of coughing
and fever that failed to respond to antibiotics. The
decedent presented again on December 18th with
the same type of complaint and now also alleging
that he was experiencing pain in his lungs. On
both occasions, the patient was seen by physician
assistants and was not seen by the defendant
physician or any other physician. Also, on both
occasions, the physician assistants diagnosed the
decedent with pneumonia; however, on both
occasions, no diagnostic testing was performed to
confirm the clinical diagnosis. The defendants
failed to have any blood drawn, perform a chest
X-ray, or even have an oxygen saturation
performed. Nothing was done to assess the
severity of the decedent’s alleged pneumonia.
There is no evidence that the defendant physician
who was in charge of supervising the physician’s
assistants ever followed up with the decedent and
no indication of when the defendant reviewed the
decedent’s chart.
On December 23rd, the decedent, whose condition
was continuing to deteriorate, presented to a different hospital. He was admitted immediately and following diagnostic testing, he was diagnosed with
blastomycosis. He died on January 1st.
The plaintiff brought suit alleging negligence on the
part of the physician supervisor and the health care
facility maintaining that the physician assistants were
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6
SUMMARIES WITH TRIAL ANALYSIS
negligent in failing to order any type of diagnostic
testing and the physician in charge of supervising the
physician assistants was negligent in supervising and
overseeing the care of the plaintiff’s decedent.
The defendants denied that there was any breach of
the standard of care by either the physician assistants
or the supervising physician. The trial lasted for four
days.
At the conclusion of the trial, the jury deliberated for
eight hours and returned its verdict for $3,762,500.
The award will be reduced according to Wisconsin’s
cap on non-economic damages.
REFERENCE
Plaintiff’s physician assistant expert: Raymond
Mooney, P.A. from Brooklyn, MI. Plaintiff’s
pulmonology expert: Basil Varkey, M. D. from
Milwaukee, WI. Plaintiff’s treating physician expert:
John Andrews, M.D. from Green Bay, WI.
Defendant’s infectious disease expert: Jeanine Smith,
M.D. from Ann Arbor, MI. Defendant’s physician
assistant expert: Mark Eichenlaub, P.A. from North
Port, MI.
Maria A. Zavala McDaniel, individually and as Special
Administrator of the Estate of Gustavo Espinal Santos,
et al. vs. Peri Aldrich, M.D. and Bellin Health Systems.
Case no. 08CV34; Judge Sue E. Bischel.
defendant Aldrich: Steven P. Sager of Sager Colwin
Samuelson & Associates , S.C. in Fond du Lac, WI.
Attorney for defendant Bellin Health Systems: Jeffrey
P. Conta of Briesen Roper S.C. in Milwaukee, WI.
COMMENTARY
The plaintiff argued that the defendants were negligent in failing
to diagnose the decedent’s condition on his visits to their facility on
December 15th and December 18, permitting his condition to
worsen. One of the recognized methods of diagnosing
blastomycosis is a simple chest x-ray, the same as should have been
done to confirm the physician assistant’s diagnosis of pneumonia,
the plaintiff alleged. The plaintiff presented expert pulmonology
testimony that if the decedent had been diagnosed on either December 15th or December 18th, he would have most certainly
survived the disease.
The plaintiff left behind a wife and two minor children and he was
only 25 years old at the time of his death. The plaintiffs had made
pre-trial offers of settlement in the amount of $95,000 each for the
plaintiff wife and two minor children. The defendants failed to
make any offers of settlement prior to trial.
The jury apportioned liability at 35% to the defendant doctor and
65% to the defendant health care facility. The jury’s damages consisted of $12,500 for funeral expenses and $2,700,000 for predeath mental and physical pain and suffering, disability and loss of
enjoyment of life. The jury awarded the plaintiff wife the sum of
$350,000 for loss of society and companionship and awarded the
decedent’s two minor children the sum of $350,000 each for loss of
their father’s society and companionship.
Attorneys for plaintiff: James R. Sickel, Kristine A.
Pihlgren, and Chad D. Resar of Hinkfuss Sickel
Petijean & Wieting in Green Bay, WI. Attorney for
$1,350,000 PRESENT VALUE RECOVERY – MEDICAL MALPRACTICE – OB/GYN –
HOSPITAL NEGLIGENCE – FAILURE TO OFFER OPTION OF C-SECTION TO HIGH RISK
PREGNANT PATIENT – ERB’S PALSY – SHOULDER DYSTOCIA – MODERATE
FUNCTIONAL AND COSMETIC DEFORMITY.
Cook County, Illinois
The plaintiff mother contended that the defendant
second-year obstetrical resident at the defendant
hospital negligently failed to inform her that
because of gestational diabetes and a history of a
prior delivery of a macrosomatic baby, she was at
increased risk for shoulder dystocia and should
have been offered the option of a C-section, to
which she would have consented. The plaintiff
further contended that when shoulder dystocia
was encountered during the vaginal delivery, the
maneuvers that were used in an attempt to freeup the baby’s impacted shoulder were done in a
negligent manner. The plaintiff contended that
the child, age nine at trial, suffered left sided
Erb’s Palsy and that although her condition has
improved from two surgeries, she will
permanently suffer difficulties with everyday
activities, such as buttoning a shirt or brushing
her hair.
The evidence disclosed that the plaintiff’s mother had
gestational diabetes and a history of a previous vaginal delivery of a macrosomatic baby. The plaintiff
Volume 26, Issue 9, September 2011
contended that she was thereby at heightened risk of
shoulder dystocia and that she should have been
given the option of planning for a C-section, obviating the risks of a vaginal delivery. The plaintiff established that despite this history, the defendants failed
to gauge the size of the fetal head from ultrasound
and contended that had the defendants done so, it
would have been apparent that the mother ran a
very significant risk.
The plaintiff further contended that once shoulder
dystocia was encountered, the physicians attempted
the McRobert’s maneuver and the use of suprapubic
pressure. The defendants maintained that appropriate procedures were adequately followed. The evidence disclosed that the defendant attending Ob/
Gyn placed his hands on the hands of the defendant
second year resident to try to teach her how much
traction to apply during the attempts to free the
shoulder through lateral traction. The plaintiff contended that the defendants used excessive force
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SUMMARIES WITH TRIAL ANALYSIS
and that the finding of a 90 degree rotation of the
head as compared with the shoulder would not have
occurred unless excessive force was used.
The plaintiff also contended that although it was her
first shoulder dystocia and only delivery that resulted
in a permanent brachial plexus injury to a baby, the
defendant second year resident indicated that she
did not recall the delivery. The plaintiff would have argued that it was clear that this position should not be
accepted.
The infant plaintiff has already undergone two surgical interventions that have provided relatively significant improvement, but contended that she
continues to experience substantial difficulties with
everyday tasks otherwise taken for granted. The infant
plaintiff would have related that she continues to
have difficulties buttoning a shirt or brushing her hair.
The plaintiff maintained that even if a contemplated
third surgical intervention is successful, the infant
plaintiff will none-the-less suffer day to day difficulties
for the remainder of a lengthy life expectancy.
The case settled prior to trial for a structure with a
present value of $1,350,000.
REFERENCE
Plaintiff vs. Defendant Physician and Hospital. Case
no. 05 L 000738.
7
Attorneys for plaintiff: John J. Perconti and Patricia
Gifford of Levin & Perconti in Chicago, IL.
COMMENTARY
The plaintiff, in advancing the proofs in this Erb’s Palsy case, argued that because of the mother’s history of having delivered a
macrosomatic baby and the gestational diabetes suffered during
this pregnancy, the baby was at particularly strong risk for a shoulder dystocia and that the mother should have been informed of the
possibility of a planned C-section. Additionally, the plaintiff would
have emphasized that once shoulder dystocia was encountered, the
description in the records of the maneuvers that were attempted reflected that they were not done correctly. In this regard, it is felt
that a jury, confronted with evidence showing both that the mother
was not given the opportunity to obviate the risk through a C-section, and that acceptable techniques were not employed once the
risk materialized, may well have created a strong jury reaction if
the case had been tried.
Finally the defendant second-year resident had testified during discovery that she had no recollection of this labor and delivery. If the
case had proceeded to trial, the plaintiff would have argued that
the jury should consider that in view of the fact that the resident
had not previously been involved in a delivery in which shoulder
dystocia had been encountered, and since this was the only delivery
in which she had participated that resulted in a permanent brachial
plexus injury to a baby, her contentions that she did not recall the
event should be strongly rejected.
DEFENDANT'S VERDICT – MEDICAL MALPRACTICE – SURGERY – WRONGFUL DEATH –
PLAINTIFFS ALLEGE DEFENDANTS DEVIATED FROM STANDARD OF CARE – SEPSIS
AND ACUTE RESPIRATORY DISTRESS SYNDROME AFTER CHOLOCYSTECTOMY.
Imperial County, California
In this action for medical malpractice, the
plaintiffs alleged that the defendants’ deviation
from accepted standards of care resulted in the
decedent’s expiration due to multiple pulmonary
emboli. The defendants generally denied the
allegations arguing that the decedent arrived with
a poor prognosis and was given appropriate care
in light of her condition.
On March 22, 2006 the 52-year-old decedent was
admitted to the defendant hospital presenting with
several chronic illnesses including obesity, diabetes,
elevated lipids, cigarette abuse, and bipolar depression. The defendant, Dr. S, admitted the decedent
with a diagnosis of acute cholectitis and uncontrolled
diabetes. Thereafter, the defendant, Dr. B, consulted
on the case and took the decedent to surgery the
following day. Because Dr. B was unable to perform
the necessary procedure using a laparoscope, the
decedent’s gall bladder was removed via an open
procedure.
The next day, March 24th, Dr. B and Dr. S were advised that the decedent was experiencing mild labored breathing. As a result, the plaintiff was
provided an oxygen non-re-breather mask and a
chest X-ray was done. Later that day, the decedent
was transferred to the intensive care unit where a second chest X-ray revealed diffuse bilateral infiltrates
consistent with ARDS. As a result, Dr. S ordered a VQ
scan and an infectious disease consult. Dr. S also
made changes to the decedent’s medication and
ordered a critical care consultation. Although, the
critical care consultant was not available, Dr. S did
consult with a cardiologist and an infectious disease
specialist.
The infectious disease specialist’s impressions included the following: septic shock; multiple pulmonary emboli; severe hypoxemia and inability to
oxygenate; severe ARDS due to pulmonary embolus;
and severe metabolic acidosis probably secondary
to lactic acidosis. A radiologist also advised Dr. S that
there was a high probability of pulmonary emboli
based on a perfusion scan that had been performed. Antibiotics were provided for a possible septic infection and Dr. S generated additional orders for
blood thinners.
On March 25, 2006, Dr. B’s progress notes indicated
that the decedent had taken a turn for the worse. He
noted that she may have pulmonary embolus. The
chest X-ray was worse and her doctors could not rule
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SUMMARIES WITH TRIAL ANALYSIS
out pneumonia. Ultimately, on March 26th the decedent suffered cardio pulmonary arrest on two separate occasions and expired.
The decedent’s family sued the defendant hospital as
well as Drs. S and B, alleging that Dr. S was negligent
in failing to promptly order blood thinners upon learning the results of the decedent’s perfusion scan. The
plaintiffs also contended that even after the blood
thinners had been provided, the dosage prescribed
was insufficient to treat the decedent’s condition. Additionally, the plaintiffs argued that Dr. S should have
used prophylactic medication and/or embolic stockings on the decedent and that the decedent should
have been prescribed an intravenous insulin drip in
order to regulate her sugar levels. Thus, the plaintiffs’
overall argument was that the decedent expired as a
result of multiple pulmonary emboli due to a
combination of errors related to her treatment.
The defendants generally denied the allegations arguing, primarily, that all parties involved acted appropriately as it related to the decedent’s clinical
presentation and the results of her diagnostic testing.
Additionally, the defense asserted that the decedent
had a poor prognosis from the ARDS/sepsis and this
was the cause of death; not clots or pulmonary
emboli. The defense was able to support this argument using the decedent’s autopsy results.
On March 14, 2011, after a ten day jury trial and
three and a-half hours of deliberation, the jury found
in favor of the defense.
REFERENCE
Plaintiff’s economist/damages expert: Stuart
Neffeler. Plaintiff’s pathologist/causation expert:
Howard Oliver, M.D. Plaintiff’s pulmonologist/critical
care/internist/standard of care expert: El Barshawi.
Defendant’s internist/standard of care expert: Alan J.
Conrad, M.D. from Poway, CA. Defendant’s nuclear
medicine/causation expert: Michael Kipper, M.D.
from San Diego, CA. Defendant’s pathologist/
causation expert: Marcus Contardo, M.D., MPH from
Vista, CA. Defendant’s pulmonology/critical care/
causation expert: Charles Landers, M.D. from La
Jolla, CA.
Yulil A. Garza, Alonso H. Alonso, Yethel Y. Alonso, Francisco Alonso, Ashley Alonso, Marley Alonso and
Marlena Alonso vs. Pioneers Memorial Healthcare District; Lorenzo Suarez M.D.; Norman Baron, M.D.;
Lorenzo Munos, M.D., and does 1 to 20. Case no.
ECU 03327; Judge Donal B. Donnelly, 03-14-11.
Attorney for plaintiffs: John W. Breeze of Plourd and
Breeze in El Centro, CA. Attorneys for defendants:
Sheila S. Trexler and Jason E. Gallegos of Neil,
Dymott, Frank, McFall & Trexler, APLC in San Diego,
CA.
COMMENTARY
According to the defense counsel, this was a relatively straightforward medical malpractice matter with no significantly persuasive
lay or expert testimony to mention. The plaintiff asked the jury for
general damages in the range of $50,000 to $100,000 for each of
the seven plaintiffs; $185,000 for loss of past and future household
services, and $5,600 for miscellaneous specials. The hospital and
Dr. B settled out prior to trial.
$24,300,000 VERDICT FOR MINOR PLAINTIFF – EMPLOYER’S LIABILITY – PLAINTIFF
ALLEGES DEFENDANT VICARIOUSLY LIABLE FOR DRIVER NEGLIGENTLY PINNING
CHILD UNDER TIRES OF TRACTOR-TRAILER – DEGLOVING AND ORTHOPEDIC
INJURIES.
Sacramento County, California
In November 2004, the nine-year-old plaintiff
was severely injured when she was pinned
beneath the tires of a tractor-trailer during a
check stop. At the time of the accident, the
independent contractor driver was hauling
produce pursuant to a contract with the
defendant, Freeway Transport, Inc. The defendant
admitted the driver’s negligence, but denied
having vicarious liability as it alleged that, at all
times, it acted as merely the broker of the haul,
not as a common carrier.
As a result of the accident, the plaintiff suffered severe soft tissue de-gloving injuries to her thighs and
buttocks, as well as orthopedic injuries to her hip and
pelvis. The plaintiff suffered rectal and vaginal injuries
necessitating the use of a colostomy bag and sustained severe upper thigh and buttock searing.
Volume 26, Issue 9, September 2011
Before trial, the parties agreed that the driver’s negligence was the proximate cause of the plaintiff’s injuries; however, the plaintiff argued that the defendant
was also liable for her injuries under the legal theory
of non-delegable duty. Specifically, the plaintiff contended that the defendant was acting in the capacity of a federally authorized “common carrier,” when it
contracted with the driver for the produce delivery.
The trial on the vicarious liability issue was bifurcated.
In the first half of the bifurcated trial, a bench trial, the
defendant unsuccessfully challenged vicarious liability, claiming that it was not legally responsible for the
driver’s actions insofar as it merely acted as a broker
of the load and not as an interstate common carrier.
The plaintiff prevailed on her arguments after a three
day bench trial. The second half of trial was tried to a
jury and was entirely about the nature of the plaintiff’s
damages.
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The plaintiff entered the courtroom without any visible
abnormalities, but her covered conditions were disfiguring. By all accounts, she seemed well adjusted,
happy and optimistic. However, the plaintiff offered
evidence highlighting the fact that her injuries may
necessitate two hip replacement surgeries over the
course of her life, as well as extensive plastic surgery
procedures to replace scar tissue and to guard
against skin breakdown. The plaintiff also put forth testimony relating her “options” for ridding herself of her
colostomy bag.
However, experts explained that her future prognosis
in this regard is guarded. The plaintiff’s counsel argued that the plaintiff’s most challenging days - emotionally and physically - lie ahead of her and that she
is living in a temporary bubble of contentment. All experts agreed that she would enjoy good future employment opportunities, but that she would be
restricted from jobs requiring extensive manual labor.
The defense challenged these allegations, arguing
that the need for orthopedic procedures 30 years
into the future was speculative and that the young
plaintiff had made an excellent recovery. The defense also pointed out that the plaintiff could become pregnant and that she has in fact functioned
very well for several years since the accident. In addition, the defense offered expert testimony relating to
the plaintiff’s positive social relationships and family
support, arguing that her emotional and physical
prognosis was excellent and consistent with the
normal life she has lived since the accident.
The defense expert claimed that the young plaintiff
has not, nor will ever suffer from any adverse psychological conditions resulting from her trauma or impairment. Overall, the defense emphasized the plaintiff’s
resilience and contended that her condition should
not preclude her from attaining any of her future occupational and social goals.
Almost four years before trial, the plaintiff served a
statutory settlement demand to Freeway in the
amount of $2,000,000. The night before the trial for
the damage phase, the defense tendered its first settlement offer in the amount of $2,000,000. Then, just
before opening statements, the defense increased its
offer to $5,000,000. After the first day of evidence,
the offer increased to $6,000,000. Thereafter, with a
few days remaining in plaintiff’s case, the defense increased its offer to $10,000,000.
9
REFERENCE
Plaintiff’s biochemical engineer expert: John Brault
from Mission Viejo, CA. Plaintiff’s colostomy and
wound care nurse expert: Kelly Sparks, R.N.
Plaintiff’s cosmetic reconstructive surgery expert:
Michael Goodman, M.D. Plaintiff’s economist expert:
Laura Fuchs-Dolan from Costa Mesa, CA. Plaintiff’s
forensic psychiatry expert: Charles Scott, M.D. from
Sacramento, CA. Plaintiff’s General and Vascular
Trauma Surgeon expert: James Gonzalez, M.D. from
Redding, CA. Plaintiff’s neuropsychologist expert:
Babara McDermott, Ph.D. from Sacramento, CA.
Plaintiff’s orthopedic surgeon expert: George Rab,
M.D. from Sacramento, CA. Plaintiff’s Pediatric
Critical Care Physician expert: James Marcin, M.D.
from Sacramento, CA. Plaintiff’s pediatric general
surgeon expert: Tina Palmieri, M.D. Plaintiff’s
physical medicine and rehabilitation expert: Stephen
Mann, M.D. from Sacramento, CA. Plaintiff’s
reconstructive surgery expert: Stacey Wallach, M.D.
from Sacramento, CA. Plaintiff’s statistician expert:
Matt Harbison from Sacramento, CA. Plaintiff’s
vocational rehabilitation counselor expert: Carol
Hyland from Lafayette, CA. Defendant’s economist
expert: Jerald Udinsky, Ph.D. Defendant’s life care
planning expert: Eizabeth Holakiewicz, R.N.
Defendant’s neuropsychology and psychology expert:
Ronald Roberts, Ph.D. Defendant’s obstetrics and
gynocology expert: Marvin Kamras, M.D. Defendant’s
plastic surgery expert: Granger Wong, M.D. from
Sacramento, CA. Defendant’s vocational
rehabilitation expert: Robert Hall, Ph.D.
Diana Loza - Jimenez vs. Freeway Transport, Inc.
Case no. 06AS00067; Judge David Abbott.
Attorneys for plaintiff: Robert A. Buccola and Steven
M. Campora of Dreyer Babich Buccola Callaham &
Wood LLP in Sacramento, CA. Attorneys for
defendant: Gary C. Ottoson of Bacalaski, Ottoson &
Dube LLP, and Paul Bozych and Ian R. Feldman of
Clausen Miller P.C.
COMMENTARY
This verdict is the largest personal injury award in Sacramento
County; significantly exceeding the last largest injury verdict of 9.3
million dollars returned in June of 1998. The jury expressed a
strong distaste for the defense’s psychology and economic damages
experts, stating that their opinions were unsupported and lacked
credibility. The jurors also felt that the defense’s Ob/Gyn and its
life care planner were unrealistic in their opinions.
Ultimately, on March 5, 2010, this case went to verdict and the jury awarded the plaintiff a total settlement of $24,300,000, of which $20,000,000 was
awarded on general damages.
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SUMMARIES WITH TRIAL ANALYSIS
$8,300,000 RECOVERY – CONTRACT – BREACH OF EXCLUSIVE SALES AGREEMENT IN
CEASING COMMUNICATION AND REFUSING TO PAY SALES COMMISSION –
DEFENDANT ADDITIONALLY HIRES FORMER PLAINTIFF’S EMPLOYEE TO SET UP OWN
DIRECT SALES FORCE.
Washtenaw County, Michigan
In this breach of contract case, the plaintiff filed
suit claiming the defendant breached its exclusive
sales representative agreement after eliminating
all contact and communication with the plaintiff
and by refusing to pay sales commission on all
sales in North America, as contracted. The
plaintiff additionally contended the defendant was
in contravention of the agreement in its decision
to hire one the plaintiff’s key employees to set up
its own direct sales force. The defendant, a South
Korean company which manufactures hoses,
tubes and weather stripping for automotive
manufacturers, claimed the two parties agreed to
a buy-out agreement which released them from
the exclusive sales agreement. The plaintiff
claimed the defendant refused to pay any sales
commission on more than $142 million in North
American’s sales commissions due as of the date
of trial.
In 2001, the defendant attempted to sell its products
to automotive companies in the United States and
entered into an exclusive sales representative agreement (ESRA) with the plaintiff. The plaintiff was to solicit
orders to promote the sale of the defendant products
in North America for a period of five years.
In October 2002 the defendant requested changes
to the ESRA, including a reduction in commission percentages, elimination of exclusivity and a reduction
in the contract period from five to three years. While
the two parties negotiated, the defendant hired one
of the plaintiff’s key employees, Kun Lee, to begin
working as the general manager of the defendant’s
Detroit, Michigan office. Shortly thereafter, the negotiations to amend the ESRA became negotiations for
the defendant to buy-out the ESRA.
While the defendant claimed that a buy-out agreement was entered into by email on December 31,
2002, the plaintiff maintained this agreement was
never finalized. In his trial testimony, Lee additionally
admitted that as of January 27, 2003, there was not
a completed contract memorializing the buy-out. In
February 2003, the plaintiff learned that the defendant’s business agreement with Ford Motor Company, for which the buy-out was based upon, was
likely to be canceled, and he sent a letter revoking
the buy-out proposal. In this letter, the plaintiff stated
he would continue to rely on the ESRA.
At trial, the plaintiff testified that it ceased to pursue
business on behalf of the defendant in January 2003
due to the fact that the defendant advised customers that the plaintiff was no longer its sales representative. The plaintiff claimed the defendant stopped
Volume 26, Issue 9, September 2011
communicating necessary business information and
that, two months later, the defendant ceased paying
the plaintiff’s monthly retainer.
The defendant maintained that because the plaintiff
did not obtain any revenue-generating business, the
plaintiff did not contribute “in whole or in part” to any
of the sales, as stipulated by the language in the
ESRA, therefore it was not entitled to any commissions. However, the plaintiff argued its lack of participation in the sales was the product of the
defendant’s breach of contract, which required the
defendant to refer all correspondence, inquiries, solicitations and orders relating to the sale of its products in North America. It was the plaintiff’s position
that the defendant breached the contract by discontinuing all communication and in telling customers
that the plaintiff was no longer its representative.
The defendant additionally argued the plaintiff was
engaged in a conflict of interest in its representation
of another Korean company. Yet, the plaintiff maintained the defendant was fully aware of and consented to this representation.
The jury found the ESRA did not end until April 9, 2006
and that the defendant breached the agreement
and was liable to the plaintiff in the amount of $3.1
million in damages as a percentage of the total sales
derived from seven programs for which the defendant was providing parts. This award included the
$100,000 penalty under the Michigan Sales Representatives Commission Act. The jury additionally
found the plaintiff was entitled to post-termination
commissions under the agreement. The jury did not
award on the plaintiff’s tortious interference with contract claim, premised on the defendant’s hiring of
Lee, because it awarded full damages on its breach
of contract claim. The plaintiff was additionally
awarded more than $270,000 in attorney fees and
costs.
REFERENCE
Votar, LLC vs. HS R&A Company, LTD. Case no. 0560125; Judge John Corbett O’Meara.
Attorneys for plaintiff: Randall J. Gillary and Kevin P.
Albus of Randall J. Gillary, P.C. in Troy, MI. Attorneys
for defendant: Steven Susser (trial) of Young & Susser
in Southfield, MI, and Thomas Goldstein (appeal) of
Akin Gump Strauss Hauer & Feld LLP.
COMMENTARY
The defendant appealed the jury’s decision in the 6th Circuit Court
of Appeals on the basis that the court erred in denying its motion
for summary judgment as a matter of law or, in the alternative,
that it was entitled to a new trial. The defendant asserted that the
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terms of the contract were unambiguous and that therefore, no
breach occurred. Furthermore, the defendant claimed certain sales
were erroneously including in the calculation of the jury’s damages. The circuit court of appeals affirmed the decision, finding the
ambiguity of the ESRA was sufficient for the district court to bring
before the jury and that it was reasonable for the jury to find that
the plaintiff was entitled to commissions on the sales in question.
11
It should be noted that the jury in this case consisted of several current and some former Ford and General Motors employees and
that a decision in favor of the plaintiff was easily reached in deliberations. The parties reached an $8.3 million settlement after the
court of appeals affirmed the judgment on jury verdict.
$4,400,000 RECOVERY – PRODUCT LIABILITY – FAILURE TO WARN – INADEQUATE
SHUT DOWN DEVICES AND WARNINGS CAUSE PLAINTIFF TO BE CRUSHED BY 3,400
PAVER BRICKS WEIGHING OVER 1 1/2 TONS – MULTIPLE FRACTURES TO CHEST –
CLOSED HEAD INJURY – LOWER EXTREMITY WEAKNESS – LACERATED LIVER.
U.S. District Court, Northern District of Illinois
REFERENCE
In this product liability matter, the plaintiff alleged
that the defendants were negligent in
manufacturing equipment without proper stop
devices and safety features. The plaintiff was
crushed when the defendant’s machines failed to
stop. The defendants denied the allegations and
maintained that the plaintiff’s negligence was the
cause of his injuries.
Plaintiff’s computer electronic engineer expert: Lanny
Golden from Wilmington, DE. Plaintiff’s economics
expert: Charles Linke, Ph.D. from Champaign, IL.
Plaintiff’s physical medicine and rehabilitation
expert: Gary Yarkony, M.D. from Lake Forest, IL.
Plaintiff’s safety experts: John Frost from Huntsville,
AL, and Douglas Morita from Morton Grove, IL.
Defendant’s analytic engineering expert: Stephen
Thomas, P.E. from Gilford, NH. Defendant’s
computer expert: Stephen Carter from Portsmouth,
NH. Defendant’s exponent expert: John Marents
Ph.D., P.E. from Lisle, IL. Defendant’s medical expert:
Ronald Tochin, D.O. from Miami, FL.
The 45-year-old male plaintiff was a laborer working
at Unilock, Inc. in Aurora, Illinois. The defendant MASA
was the manufacturer of a walking beam conveyor
which would systemically move a pallet of paver
bricks, weighing approximately one and a-half tons
along the conveyor until it reached the strapping machine. The strapping machine manufactured by the
defendant Viktor would signal the MASA conveyor to
send down another pallet of bricks once a pallet had
been strapped.
On August 1, 2005, the plaintiff was recoiling the
strapping machine with a new coil of strapping material when the defendants’ machines malfunctioned.
The defendant Viktor’s computer signaled the MASA
conveyer to move another pallet of bricks, containing
3,400 paver bricks down the conveyor. The plaintiff
was trapped between two pallets of bricks and
crushed.
As a result of the incident, the plaintiff sustained multiple fractures to his chest, a closed head injury, lower
extremity weakness and a lacerated liver. The plaintiff
brought suit against both manufacturers alleging
negligence. The plaintiff alleged that the devices
lacked adequate safety measures, shut down
devices and warnings.
The defendants denied the allegations. The defendants maintained that the plaintiff was negligent and
responsible for his own injuries and alternatively that
any negligence was on the part of the plaintiff’s employer and not with the defendant manufacturers.
Guillermo Navarro vs. MASA Aktiegesellschaft, a foreign corporation and Viktor Ridder GmbH, a foreign
corporation. Case no. 06-C-4352; Judge William T.
Hart.
Attorneys for plaintiff: Michael K. Demetrio and
Edward G. Willer of Corboy & Demetrio P.C. in
Chicago, IL. Attorneys for defendant MASA: John W.
Bell, Robert R. McNamara, and Sean Hardy of
Johnson & Bell, Ltd. in Chicago, IL, and Frederick W.
Reif and Debra Tama of Biederman Reif Hoenig &
Ruff in New York, NY. Attorneys for defendant
Viktor: Edward B. Ruff III and Rick Kenyon of Pretzel
& Stouffer in Chicago, IL. Attorneys for defendant
Unilock: John S. Huntley and Elaine C. Davenport of
Sanchez Daniels & Hoffman Ltd. in Chicago, IL.
COMMENTARY
The plaintiff was a father of four at the time of the incident. The
plaintiff was literally hit with a ton of bricks when the machines
failed to shut down the conveyor. He incurred medical specials of
$1,118,673 and alleged lost income of $121,503. The settlement
consisted of $2,400,000 to be paid by the defendant MASA;
$900,000 to be paid by the defendant Viktor and a $1,084,025
waiver of the worker’s compensation lien and funding of medical
set-aside above $70,000 by Unilock.
The matter was settled prior to trial for the sum of
$4,400,000.
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DEFENDANTS’ VERDICT – PRODUCT LIABILITY – FAILURE TO WARN OF POTENTIALLY
TOXIC FUMES – DAMAGES INCLUDE REACTIVE AIRWAY DISEASE.
U.S. District Court, Northern District of Georgia
In this products liability action, the plaintiffs
alleged serious injuries as a result of inhalation
exposure to Stand n’ Seal “Spray On” Grout
Sealer (SNS). The defendants denied responsibility
for the plaintiffs’ injuries; arguing instead that
they acted reasonably at all times in relation to
issues that arose with the product.
This multidistrict litigation consisted of five plaintiffs
from three states acting as a bellwether group for 185
nationwide plaintiffs. Each plaintiff alleged to have
purchased and used SNS, a spray on sealant used to
seal tile grout, after the manufacturer, SLR, Inc. d/b/a
Easy Care Products, had reformulated the product.
According to the plaintiffs, the change to SNS’s formula caused the product to emit toxic fumes. As a
result, the plaintiffs alleged that they suffered permanent injuries resulting in a diagnosis of reactive airway
disease and requiring lifelong medical treatment.
Initially, the plaintiffs sued the manufacturer as well as
Aerofil Technology, Inc. (the packager), Roanoke
Companies Group, Inc. (the distributor), and the
Home Depot U.S.A., Inc. (the retailer). Each was accused of negligent design, negligent manufacturing,
negligent failure to warn and negligent failure to execute a recall. However, the manufacturer settled with
the plaintiffs prior to trial. Thus, the remaining defendants proceeded to trial with the focus resting heavily
on the allegations of negligent failure to warn and
negligent failure to execute a recall.
At trial, the plaintiffs argued that the defendants, and
particularly the distributor, failed to warn consumers
that the product contained potentially toxic fumes.
The plaintiffs also contended that the product’s label
contained defective warnings insofar as the label did
not adequately advise of the risks associated with using the product. Moreover, the plaintiffs argued that
the distributor failed to execute an appropriate and
timely recall of the product one it began to receive
consumer complaints.
The defendants denied the allegations. The distributor
argued, instead, that it could not warn of risks of
which it was not cognizant. The defendants also contended that the manufacturer made a unilateral decision to reformulate the product without the
distributor’s knowledge or consent. In addition, the
distributor pointed out that it voluntarily initiated a recall of the product within one month of receiving the
first consumer complaint. This recall was initiated despite the lack of any State, Federal, or local government entity requiring such action and despite the
fact that the distributor, at the time of the recall,
remained unaware that the product had been
reformulated.
Volume 26, Issue 9, September 2011
Moreover, the distributor accused the manufacturer
of intentionally concealing the reformulation of the
product amidst consumer complaints. It was the distributor’s overall argument that the defendants acted
reasonably given the circumstances, having done all
that was possible based on the manufacturer’s actions. Thus, the defense argued that all injuries were
entirely attributable to the manufacturer’s actions.
At the close of trial, the plaintiffs asked the jury for a
recovery of $2,900,000. Nevertheless, the jury found
in favor of the defense, precluding recovery entirely.
REFERENCE
Plaintiff’s product recall expert: Cathy Downs from
Herndon, VA. Plaintiff’s toxicology expert: Henry
Spiller from Lanesville, IN. Defendant’s aerosol
technology expert: John Chadwick from Raymond,
NH. Defendant’s product recall specialist experts:
Michael Gidding from Washington, DC, and Christine
T. Wood from Menlo Park, CA.
In re Stand ‘N Seal, Products Liability Litigation vs. n/a.
Case no. 1:07-MD-1804; Judge Thomas W. Thrash, Jr.
Attorneys for plaintiff: William Maiberger of Watts
Guerra Craft LLP in San Antonio, TX, Scott P.
Callahan of Law Office of Scott P. Callahan, P.C. in
Houston, TX, and Joseph V. Gibson of Law Office of
Joseph V. Gibson, P.C. in Houston, TX. Attorneys for
defendant Roanoke: Edward B. Ruff III, Michael P.
Turiello, Crystal Leighton, and James Gillingham of
Pretzel & Stouffer, Chtd. in Chicago, IL. Attorneys for
defendant Home Depot: John MacNaughton and
Seslee Mattson of Morrs, Manning, and Martin in
Atlanta, GA. Attorneys for defendant Aerofil: Thomas
Terry and James Popson of Sutter, O’Connell &
Farchione & Co. in Cleveland, OH.
COMMENTARY
The defense counsel believes that this verdict could be attributed to
a number of factors. First, the Court ruled on a number of pre-trial
motions which narrowed the issues to be presented at trial. Allegations based on the Consumer Product Safety Act, as well as theories
of strict products liability and breach of warranty, were precluded.
In addition, the Court granted the distributor’s and retailer’s motion for summary judgment on the issue of punitive damages.
The Court also limited the time within which each party was provided to present their case to 20 hours per side. This limitation had
the overall effect of limiting objections and causing each party to
seriously weigh the value of evidence presented. Nevertheless, the
defense counsel notes that, despite the daunting nature of the task,
both parties were able to comply with the time limitation. Moreover the defense counsel believes that the time limitation helped
the case insofar as each party was forced to keep their case tight.
This reaction prevented relevant points from getting lost in a mass
of information. Comments from jurors, after the fact, confirmed
that this was a positive strategy.
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Verdicts by Category
MEDICAL MALPRACTICE
Anesthesiology
$250,000 RECOVERY
Medical Malpractice – Anesthesiology – Wrongful
death – Pain management – Defendant’s
negligent placement of catheter results in death.
Orange County, California
In this action for medical malpractice, the plaintiff
alleged that the defendant’s failure to properly
place a catheter during a routine pain
management procedure proximately caused her
mother’s death. The defendant generally denied
the allegations.
The 58-year-old decedent had a history of chronic
pain in the neck, left shoulder, and left upper extremity. As a result, on April 9, 2010, she underwent a cervical epidural steroid injection with catheter
advancement in the cervical spine at C3 at the
hands of a pain management specialist. During the
procedure, the catheter was mistakenly inserted into
her spinal cord and subsequently into her brain stem
and dye was injected.
This caused a subarachnoid hemorrhage, as well as
damage to the spinal cord and base of the brain.
The decedent was immediately hospitalized, and remained on life support until May 22, 2010, when it
was removed and she passed away.
The plaintiff (the decedent’s adult emancipated
daughter) sued the defendant for wrongful death
and medical malpractice. Specifically, the plaintiff
argued that the defendant failed to adhere to appropriate standards of care proximately causing her
mother’s death. The defendant generally denied the
allegations.
Ultimately, this matter settled in the pre-litigation
stage with a $250,000 recovery for the plaintiff.
REFERENCE
Doe vs. Roe. 04-05-11.
Attorney for plaintiff: Daniel M. Hodes of Hodes
Milman LLP in Irvine, CA.
Cardiology
DEFENDANT’S VERDICT
Medical Malpractice – Cardiology – Alleged
negligent sudden withdrawal of beta blockers
when elderly patient presents with shortness of
breath – Patient suffers paroxysmal atrial
fibrillation that leads to death from embolic
stroke.
Middlesex County, New Jersey
This medical malpractice action involved an 86year-old decedent with a history of atrial
fibrillation who had been on both blood thinning
medication and beta blockers. The blood thinning
medication had been discontinued three months
before the incident as a result of a series of falls
in the prior six months. The plaintiff contended
that when the decedent presented with shortness
of breath, the defendant cardiologist immediately
withdrew the beta blockers. The plaintiff
contended that the widow was aware of warnings
against sudden withdrawal of beta blockers, so
advised the defendant, and was told that the
doctor was in a much better position to make such
determinations.
The plaintiff maintained that within 33 hours after the
withdrawal, the patient suffered a fatal embolic
stroke. The 83-year-old widow’s claims included severe emotional distress under Frame v. Kothari 115 NJ
638 (1989), and the plaintiff contended that she witnessed both the alleged deviation and the fatal
stroke and that the requirements for an emotional distress claim in this medical malpractice action were
met. The widow’s forensic psychiatrist, Robert Latimer,
MD, gave a guarded prognosis with a diagnosis of
PTSD.
The defendant denied that the withdrawal of the
beta blockers was improper or that it was causally related to the fatal embolic stroke. The defendant
maintained that the warnings related to angina patients and those at risk for myocardial infarction and/
or ventricular fibrillation and would not expose a patient to an increased risk of atrial fibrillation. The deSubscribe Now
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VERDICTS BY CATEGORY
fendant further contended that the literature since
the initial beta blocker warnings reflected that the
risks, even as to angina, myocardial infarction and
ventricular arrhythmia, had been discounted and in
any event had never applied to atrial arrhythmia.
The decedent left three adult children in addition to
the widow and the plaintiffs’ claims included the loss
of guidance and advice under Green vs. Bitner.
The jury found that the defendant was not negligent.
REFERENCE
Plaintiff’s cardiology expert: Bruce Charash, MD from
New York, NY. Plaintiff’s psychiatrist expert: Robert
Latimer, MD from Montclair, NJ. Defendant’s
cardiology expert: Edward Dwyer, MD from Newark,
NJ. Defendant’s psychiatrist expert: Robert Sostowski,
MD from Millburn, NJ.
Tompesku vs. New Brunswick Cardiology, et al. Docket
no. MID-. L-5429-07; Judge Phillip Lewis Paley, 05-2511.
Attorney for defendant: L. John Dughi of Dughi &
Hewit, PC in Cranford, NJ.
Dental
$310,000 VERDICT
Medical Malpractice – Dental – Failure to advise
infant plaintiff and mother that caps and crowns
would be necessary after prolonged orthodontic
treatment for cosmetic anomaly – Alleged
negligent failure to extract bicuspids and
subsequent relocation of cuspids.
New York County, New York
The plaintiff contended that when the nine-yearold infant plaintiff presented to the defendant
orthodontist with an anomaly involving a
transposition of the cuspids and bicuspids that
caused a cosmetic deficit, but no functional
difficulties, the defendant negligently embarked
on a prolonged course of orthodontic treatment.
The plaintiff maintained that over the course of
the next several years, she became increasingly
dissatisfied with the crowded appearance of her
teeth. The plaintiff contended that the defendant
should have allowed for more room by extracting
the bicuspids and subsequently relocating the
cuspids.
The plaintiff also maintained on an informed consent
theory that the infant plaintiff and her mother were
not advised that the defendant’s course of treatment
would mandate the subsequent placement of caps
and crowns. The plaintiff contended that she now requires caps and crowns and will need a number of
replacements of these caps and crowns.
The defendant contended that the plaintiff’s suggested course of treatment was not viable and that
he embarked on the proper course. The defendant
also maintained that he had advised the plaintiffs of
the need for crowns and caps. The plaintiff countered
that the defendant could not document having provided such information.
The jury found that the defendant’s treatment was not
negligent, but that he failed to obtain the patient’s informed consent. They then awarded $310,000, including $15,000 for past pain and suffering, $95,000
for future pain and suffering and $200,000 for future
dental costs.
REFERENCE
Plaintiff’s dentist/ondontologist experts: Jeffrey
Ginsberg, DMD from Yorktown Heights, NY, and
Howard Jay Kirschner, DDS from Rockaway Beach,
NY. Defendant’s orthodontist expert: Angela
Andretta, DDS from Flushing, NY. Defendant’s
orthodontist expert: Mark Bronsky, DDS from New
York, NY.
Bianco vs. Topal. Index no. 107982/08; Judge Jeffrey
Oing, 01-20-11.
Attorney for plaintiff: Albert W. Chianese of Albert W
Chianese & Associates in Rockville Centre, NY.
Hospital Negligence
DEFENDANT’S VERDICT
Medical Malpractice – Hospital Negligence –
Failure to exercise proper care and treatment
during plaintiff’s labor and delivery – Failure to
disclose risks of not using anesthesia or policy of
withholding epidurals for inability to pay – Child
born with permanent brain injury.
Volume 26, Issue 9, September 2011
Harris County, Texas
In this medical malpractice action, the plaintiff
alleged that she gave birth to her son at
defendant hospital, and seven years later, she
filed suit against defendant hospital alleging
permanent brain injury to her son as a result of
the events surrounding her labor and delivery.
The plaintiff alleged that defendant failed to
provide appropriate and proper care, failed to
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15
adequately access the plaintiff’s medical condition
and failed to provide treatment. The plaintiff
alleged that the injuries and condition caused by
brain damage are ongoing and permanent, and
that her son suffered injuries, disfigurement,
physical impairment and medical expenses. Two
years later, the plaintiff filed a second amended
petition adding new causes of action against
defendant hospital for assault, negligence,
infliction of emotional distress, malicious conduct
and felonious conduct. The defendant denied the
plaintiffs’ allegations, and alleged that the
plaintiffs’ cause of action for medical negligence
was barred by the two year Statute of Limitations.
The evidence revealed that on February 13, 1996,
the plaintiff mother gave birth to her son at the defendant hospital. On the date in question, the plaintiff alleged that the defendants failed to exercise proper
care and treatment to her and son, and caused her
unnecessary pain and suffering in failing or refusing to
provide certain treatment. The plaintiff contended
that the defendant hospital failed to disclose that her
physician ordered that she may have pain relieving
anesthesia, an epidural, that she was entitled to receive it, and that she should receive an epidural consistent with her well-being and that of her unborn
child.
The plaintiff contended that the defendants failed
and refused to advise her that the anesthesia was
being withheld by the hospital nurses and administrative system in place to deny epidurals to women who
could not afford to pay. The plaintiff contended that
the defendants failed to disclose the risks involved in
not having epidurals or in describing to her epidurals
or any pain relieving alternative. The plaintiff alleged
that the defendant hospital failed to give her appropriate treatment which was prescribed by her physician, and which probably would have resulted in the
safe and far less traumatic delivery of a healthy child.
The plaintiff also alleged that she learned later that
the hospital administrative system “actively
concealed” from her the appropriate treatment and
care.
The defendant anesthesiology group argued that
they did not have a physician-patient relationship with
the plaintiff relating to the alleged failure to provide
epidural anesthesia and that they owed no duty to
the plaintiff as a matter of law. The defendant hospital argued that the plaintiff’s claims for medical negligence based on the hospital’s failure to provide her
an epidural during labor and delivery fails as a matter
of law because the claims are all health care liability
claims.
The defendant hospital also argued that there was no
evidence to show that the plaintiff’s failure to receive
an epidural was related to an alleged discriminatory
system. The defendant hospital showed admissible
evidence of a August 29, 1995 memorandum regarding the administration of epidural anesthesia to
laboring women was not discriminatory and that it
applied to all patients who were not preregistered
and made no mention at all of the patient’s economic status. The admissible evidence showed that
the plaintiff did not receive an epidural because she
was not a medical candidate for an epidural.
The jury found in favor of the defendants. The defendant hospital settled before trial for an undisclosed
amount. The plaintiffs’ lead counsel, Alex Klein, argued for $77 million dollars.
REFERENCE
Mirna Acosta, A/N/F, Natural Parent and Legal Guardian of Denis Acosta vs. Memorial Hermann Hospital
System, Memorial Hermann Hospital System d/b/a
Memorial Hermann Southwest Hospital, Dinsdale W.
Ford, M.D. and Greater Houston Anethesiology, P.A.
Case no. 2003-29841; Judge Robert K. Schaffer, 0301-11.
Attorneys for plaintiff: J. Todd Trombley, Myriam K.
Legge, and Alexander B. Klein, III of The Klein Law
Firm in Houston, TX. Attorney for defendant Greater
Houston Anesthesiology, P.A.: Brian P. Johnson and
Kealy C. Sehic of Johnson, Trent, West & Taylor,
L.L.P. in Houston, TX, and Reagan W. Simpson and
Victor Thomas of King & Spaulding, L.L.P. in Houston,
TX.
Ob/Gyn
DEFENDANT’S VERDICT
Medical Malpractice – Ob/Gyn – Failure to
properly handle macrosomia – Failure to perform
a C-section – Negligent application of excessive
force and pressure in the delivery of the infant –
Brachial plexus injury to infant male.
Oklahoma County, Oklahoma
diabetes history of the plaintiff and proceeded
with a vaginal birth when the size of the infant
required a C-section birth. As a result, the infant
male suffered a brachial plexus injury. The
defendant denied that he was negligent and
asserted that all care provided to the defendant
was within the accepted standards of care.
In this medical malpractice case, the plaintiff
alleged that the defendant ob/gyn failed to
appreciate the fetal size and prenatal gestational
On April 2, 2003, the plaintiff presented to the defendant hospital in labor and came under the care of
the defendant ob/gyn. At presentation the plaintiff’s
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prenatal history was significant for gestational diabetes and possible macrosomia. During the labor, the
defendant doctor performed an ultrasound and
failed to identify the likelihood of a large baby. During
the pushing phase of the labor, the infant became
wedged in the pelvis and the defendant had to apply lateral traction to deliver the infant.
As a result, the minor was born with a shoulder
dystocia resulting in a brachial plexus injury. The plaintiff argued that the defendant failed to provide
proper medical care for managing gestational diabetes, failed to estimate the infant’s weight, failed to
perform a C-section and negligently applied traction
to the infant during delivery. The defendant denied
that he was negligent in any manner and argued
that all care provided to the plaintiff was proper and
within the standards of medical care.
The jury returned with a verdict finding in favor of the
defendant.
REFERENCE
Lakeshia McNeal, mother and next of kin of Joshua
McNeal vs. Darren W. Goff M.D. and HCA Health Services of Oklahoma, Inc. d/b/a Oklahoma University
Medical Center. Case no. CJ 2006-5462; Judge Lisa
Davis, 01-27-11.
Attorney for plaintiff: Kevin Walker in Oklahoma
City, OK. Attorney for defendant: Kari Hawthorne of
Johnson and Hanan in Oklahoma City, OK.
Orthopedics
$750,000 VERDICT
Medical Malpractice – Orthopedic Surgery –
Deviation from standard ankle fracture care –
Permanent ankle injury – Loss of mobility –
Continuing pain.
Bronx County, New York
In this action for medical malpractice, the plaintiff
alleged that the defendants’ deviation from
accepted standards of care left him with
permanent injury to his right ankle. The
defendants generally denied the allegations;
arguing instead that the plaintiff’s injury was so
severe he could not have expected a favorable
outcome.
On September 28, 1997, the 63-year-old plaintiff was
riding his motorcycle when his front wheel was suddenly struck by a slow moving compact car. Although the plaintiff was not violently thrown from his
motorcycle, he landed in such a way that his right
foot hit the ground, bottom down; causing an ankle
fracture. According to diagnostic testing, it appeared
that upon impact his talus was pushed up into his
tibia chipping off a large fragment of the posterior
malleolus.
Upon his arrival at the hospital, the plaintiff was not
treated by a foot and ankle specialist. Also, instead of
being scheduled immediately for surgery, the plaintiff
underwent a procedure known as a “closed reduction” procedure. This non-surgical procedure was performed by a colleague of the defendant doctor and
consisted of the manipulation of the plaintiff’s right
ankle, with the goal of realigning the fractured bones.
When the first closed reduction procedure failed to
elicit a favorable result, the plaintiff then suffered a
second closed reduction procedure. It was only after
the second procedure failed that the plaintiff was finally scheduled for surgery and even then, a month
later, the surgery had to be repeated because the
initial surgery had allegedly been done incorrectly.
Volume 26, Issue 9, September 2011
As a result, the plaintiff sued the defendants for his injuries. Both the defendants Liz L. and Mercy Medical
Center settled prior to trial for $10,000 and $15,000
respectively. The defendant doctor’s colleague
avoided becoming a named defendant due to the
applicable statute of limitation. Thus, the litigation
continued against the defendant doctor and his employer, Orlin & Cohen, under the doctrine of
respondeat superior. Notably, Orlin & Cohen also employed the defendant doctor’s colleague who
performed the closed reduction surgeries.
Overall, the plaintiff contended that the defendants
were unsuccessful in treating what should have been
a simple set of fractures thereby leaving the plaintiff
with no choice but to live with continuing pain and
limited mobility. According to the plaintiff, instead of
being forced to endure two closed reduction procedures, he should have been referred to surgery
immediately.
In support of his allegations, the plaintiff presented
the jury with expert testimony, including that of an orthopedic surgery expert who opined that the departures from accepted standards in medical care
caused additional soft tissue damage which included further damage to the intra-articular surface
of the joint, the progression of arthritic changes, the
loss of dorsiflexion and the need for another operation. The orthopedic expert went on to opine that
these injuries were permanent and causally related to
the incident and that the plaintiff’s complaints of lack
of motion and constant pain were consistent with an
injury attributable to deviations from accepted
medical practice.
The defendants denied the allegations; arguing instead that they did not deviate from accepted standards of care. In fact, the defense argued both that
the plaintiff’s injury was not severe enough as to require immediate surgery or attention by a foot and
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ankle specialist, but was severe enough that the
plaintiff could not have expected a favorable outcome. Moreover, the defense challenged the extent
of the plaintiff’s damages citing preexisting injuries to
the same right lower extremity and questioning the
plaintiff about accidents involving the same right
lower extremity which predated the ankle fracture at
issue by approximately 30 years.
Ultimately, on October 8, 2010, the jury found in favor
of the plaintiff, awarding a total sum of $750,000. This
sum included $300,000 for past pain and suffering
and loss of enjoyment of life based on an estimate of
13 years and $450,000 for future pain and suffering
and loss of enjoyment of life based on an estimate of
18 years.
17
REFERENCE
Plaintiff’s orthopedics expert: Dr. Richard Fleming, Jr.
from Princeton, NJ. Plaintiff’s radiology expert: Dr.
Sondra Pfeffer from New York, NY. Defendant’s
orthopedist expert: Dr. Herbert Sherry from New
York, NY.
John Kelly vs. Liz Logan, Mercy Medical Center,
Sebastian Lattuga, Prompt Medical Care PC and
Orlin & Cohen Orthopedic Associates. Index no.
021024/1998; Judge Patricia Anne Williams.
Attorney for plaintiff: Jeffrey Singer of Segan,
Nemerov & Singer, P.C. in New York, NY. Attorney
for defendants Sebastian Lettuga, Prompt Medical
Care PC and Orlin & Cohen Orthopedic Associates:
Andrew Garson of Garson, DeCorato & Cohen in
New York, NY.
DEFENDANT’S VERDICT
Medical Malpractice – Orthopedics – Failure to
provide proper post-operative care – Failure to
initiate physical therapy after hand surgery –
Plaintiff suffers claw defect to the hand –
Additional surgery required.
Oklahoma County, Oklahoma
In this medical malpractice action, the plaintiff
alleged that the defendant orthopedic surgeon
failed to send the plaintiff for physical therapy for
almost four months following hand surgery. As a
result, the plaintiff was unable to open and stretch
her fingers and her hand became stuck in a claw
posture. The defendant argued that he provided
proper medical care to the plaintiff in compliance
with all medical standards.
On January 10, 2007, the plaintiff underwent surgery
by a non-party surgeon on her right hand after injuring it in a fall. On January 17, 2007, the plaintiff was
seen by the defendant orthopedist by way of referral
for post-operative care and treatment on the plaintiff’s right hand. Post-operatively, the plaintiff was suffering from a decreased range of motion in the right
hand. The defendant advised the plaintiff that she
did not need physical therapy. Despite the plaintiff’s
continued complaints about her right hand and her
inability to straighten her fingers, the defendant did
not refer the plaintiff for physical therapy until April of
2007.
In April of 2007, the plaintiff was sent to a rehab center to receive physical therapy. She was told that she
could not be helped with therapy as her hand was
stuck in a “claw” position and that she would require
additional surgery on the hand. The plaintiff then presented to a non-party hand surgeon who told the
plaintiff that her claw hand was the worst that he had
seen and that it was due to the lack of physical therapy after her initial hand surgery.
The plaintiff alleged that the defendant’s care fell below accepted standards of medical care. Consequently, the plaintiff had to undergo an additional
surgical procedure to her right hand and has been
left with a permanent decreased range of motion
and right hand disability. The defendant countered
that at all times he provided proper medical in accordance with all medical standards. Additionally, he
argued that any injury alleged to have been sustained by the plaintiff was caused by a third party
over whom the defendant had no control.
The jury found no negligence on the part of the
defendant.
REFERENCE
Laquita Hopkins vs. Christoper Jordan, M.D. Case no.
CJ-2009-227; Judge Twyla Mason Gray, 01-14-11.
Attorney for plaintiff: Derek Burch of Burch and
George P.C. in Oklahoma City, OK. Attorney for
defendant: Melissa Couch in Edmond, OK.
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Plastic Surgery
DEFENDANT’S VERDICT
Medical Malpractice – Plastic Surgery – Defendant
performs cosmetic surgery on the plaintiff with
unsatisfactory results – Additional surgery
required to fix the defects from the original
procedures.
Oklahoma County, Oklahoma
The 35-year-old female plaintiff in this medical
malpractice action alleged that the defendant
plastic surgeon failed to use proper surgical
techniques on the plaintiff during cosmetic
surgery resulting in severe defects and
disfigurement. The defendant countered that all
care and treatment provided to the plaintiff was
appropriate.
On March 12, 2008, the plaintiff underwent plastic
surgery to her abdomen and thighs performed by the
defendant plastic surgeon. The goal of the surgery
was to decrease a lower abdominal protuberance,
fatty deposits in the thighs and stretch marks on the
abdomen. The procedure was performed without incident; however, the plaintiff has been left with an extremely lumpy abdomen, a fatty ridge over the lower
abdominal suture line, her stretch marks are still very
visible and her thighs have visible dents. Additional
cosmetic surgery is required to fix these defects.
The plaintiff asserted that the defendant plastic surgeon failed to utilize proper medical techniques during the procedure causing injury to the plaintiff and
his care fell below accepted medical standards. The
defendant argued that all care provided to the plaintiff was within accepted medical standards and that
the care and treatment provided to the plaintiff was
appropriate.
The jury returned a verdict in favor of the defendant.
REFERENCE
Plaintiff’s expert: Paul Silverstein M.D. from
Oklahoma City, OK.
Bethany Fielder vs. Erik Nuveen M.D. Case no. CJ
2009-3331; Judge Barbara Swinton, 01-10-11.
Attorneys for plaintiff: Mark Bonner of Norman and
Edem in Oklahoma City, OK. Attorney for defendant:
Melissa Couch in Edmond, OK.
Primary Care
$1,000,000 CONFIDENTIAL RECOVERY
Medical Malpractice – Primary Care – Failure to
diagnose breast cancer in a timely manner –
Death of 53-year-old mother of two children.
Withheld County, Massachusetts
In this medical malpractice matter, the plaintiff
alleged that the defendants were negligent in
failing to diagnose breast cancer in a timely
manner. The defendants argued that there was no
indication from test results that the plaintiff
suffered from cancer to warrant follow-up care.
The 53-year-old female decedent presented to the
one defendant primary care physician with complaints of a lump in her breast. The lump had been
described on a previous mammogram as an “architectural distortion”. The mammogram and ultrasound
performed at the direction of the defendant primary
care doctor failed to disclose any abnormality. One
year later, the plaintiff changed primary care doctors
to the second primary care defendant. She continued to complain of pain and sensitivity in her left
breast, but a mammogram performed by the second defendant also came back as normal. She did
not return for any follow-up visits with the second
defendant for a period of two years.
Two years later, the plaintiff presented with complaints
of an inverted nipple and fullness and tenderness in
the left breast. At that time she was referred to a
Volume 26, Issue 9, September 2011
breast surgeon who diagnosed the plaintiff with invasive carcinoma. Despite six cycles of chemotherapy
and a mastectomy the plaintiff decedent passed
away.
The plaintiff estate brought suit alleging negligence
on the part of both primary care physicians in failure
to timely diagnose breast cancer. The plaintiff alleged that the decedent’s continued complaints despite normal test results required a referral to a breast
specialist who would have diagnosed the cancer at
an earlier stage.
The defendants denied the allegations. The defendants indicated that the normal mammogram and
ultrasound findings did not warrant a referral to the
breast specialist and it was not a deviation from acceptable standards of care on the part of either doctor. In addition, the defendants contended that the
decedent failed to return to the second defendant
for a period of two years, despite continued breast
changes, pain and discomfort.
The parties agreed to a confidential settlement of the
plaintiff’s claims for the sum of $1,000,000.
REFERENCE
Doe Estate vs. Roe Primary Care Physician.
Attorneys for plaintiff: Philip J. Crowe, Jr. and
Michael J. Harris of Crowe & Mulvey in Boston, MA.
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19
Surgery
$900,000 CONFIDENTIAL RECOVERY
Medical Malpractice – Surgery – Artery severed
during kidney surgery – Wrongful death of 64year-old female.
Norfolk County, Massachusetts
In this medical malpractice matter, the plaintiff
administratrix alleged that the defendant surgeon
was negligent in severing an artery during
surgery to remove the decedent’s kidney, which
caused the patient’s death. The defendant denied
deviation from acceptable standards of care.
In December 2005 the patient came under the care
of the defendant surgeon for removal of her left kidney. The patient had been diagnosed with an atrophic left kidney with hydronephrosis secondary to a
large uretal stone. The patient elected to undergo
kidney removal surgery to resolve the issue. While the
kidney was removed without any incident, the defendant surgeon came across what was believed to be
a stone in the ureter. The surgeon made a 1.5 cm incision in preparation to remove the apparent stone.
In actuality, it was the decedent’s artery that the de-
fendant had severed. There was an enormous
amount of bleeding which resulted in an inability to
stop the bleeding despite multiple efforts including a
consultation with a vascular specialist. The patient
bled out and died as a result of the loss of blood.
The plaintiff administratrix brought suit against the defendant surgeon alleging negligence during the surgery in severing the patient’s artery and causing her
death. The defendant denied the allegations and
maintained that there was no deviation from acceptable standards of care and the injury sustained by
the patient was a risk associated with the surgery to
which she gave informed consent.
The parties agreed to resolve the plaintiff’s claim for a
confidential settlement of $900,000 to the estate.
REFERENCE
Plaintiff Administratrix vs. Defendant Surgeon.
Attorney for plaintiff: James E. Riley, Jr. of James
Riley & Associates in Walpole, MA.
PRODUCT LIABILITY
Defective Design
$81,604 VERDICT ON PREMISES CLAIM; DEFENDANTS’ VERDICT ON PRODUCT
LIABILITY
Product Liability – Defective design of exhaust fan
– Breach of implied warranty of merchantability in
design – Failure to warn of lack of guard –
Hazardous premises liability claim against
homeowner defendant – Lacerations to right
dominant hand of plaintiff drywall contractor.
Dukes County, Massachusetts
In this product liability matter, the plaintiff
contended that the defendant manufacturer and
distributor of the exhaust fan that caused the
plaintiff’s injuries was negligent in failing to affix
a guard to the fan and attach sufficient warning
labels. The plaintiff contended that the defendant
homeowner, an electrician, wired and mounted
the fan in an unsafe condition.
The 33-year-old male drywall contractor was working
at the defendant homeowner’s house installing drywall. The defendant homeowner had an exhaust fan
manufactured by the defendant manufacturer and
distributed by the defendant distributor mounted near
an unfinished threshold on his garage stairs. The fan
was mounted in a high traffic area and did not have
a guard affixed to it. While the plaintiff was working,
he tripped and his hand came in contact with the
unguarded blades of the fan, causing him to sustain
lacerations to his right, dominant hand.
The plaintiff brought suit against the defendant manufacturer and the distributor alleging negligence and
breach of warranty. The plaintiff alleged that the fan
was defectively designed because it did not have a
guard attached at the time of manufacture and sale
and that its warning labels were inadequate. The
plaintiff also brought suit against the defendant
homeowner alleging negligence. The plaintiff alleged
that the defendant homeowner maintained the fan
in an unsafe condition since it was mounted in a high
traffic area with any guard in place.
The defendants denied the plaintiff’s allegations. The
defendant manufacturer and distributor specifically
argued that the fan is a commercial fan and is intended to be mounted in a wall or duct and hardwired into the electrical system by a qualified and licensed electrician. When the fan was used for the intended purpose, no guard was required. The guard
was made available by the defendants as an addi-
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tional component to the fan system if needed by the
end user in a particular industrial application. It was
not intended for home use.
On the first day of trial, the defendant manufacturer
and distributor argued that the plaintiff could not proceed with his failure to warn claim because there was
no evidence that any inadequacy in the warning labels accompanying the fan was the proximate
cause of the plaintiff’s injuries. The defendants moved
before jury impanelment on a motion in limine precluding the plaintiff from advancing a failure to warn
claim at trial.
After the plaintiff’s opening statement, the product liability defendants were able to successfully argue that
the plaintiff could not proceed with his negligence
and breach of warranty claims since the plaintiff
needed, and did not have, an expert witness to support the plaintiff’s theory of design defect. The court
granted the defendant manufacturer and the defendant distributor’s motion for a directed verdict following the plaintiff’s opening statement. The case then
proceeded to trial only as to the defendant property
owner.
At the conclusion of the trial, the jury returned its verdict in favor of the plaintiff and against the defendant
homeowner. The jury awarded the sum of $81,604 in
damages to the plaintiff on his claim.
REFERENCE
Christensen vs. Emerson Electric Co., et al. Case no.
07-00004; Judge Herman J. Smith, Jr., 04-27-11.
Attorney for plaintiff: Daniel Larkosh in Edgartown,
MA. Attorneys for defendant Emerson and Grainger:
David A. Barry and William F. Benson of Sugarman
Rogers Barshak & Cohen, P.C. in Boston, MA.
Failure to Warn
$40,000 VERDICT
Product Liability – Failure to Warn – Negligent
polishing of vehicle – Step of U-haul truck
dangerously slippery without warning – Slip and
fall by pregnant mother – Herniated lumbar and
cervical discs.
Philadelphia County, Pennsylvania
The plaintiff alleged that the defendant U-Haul
Company negligently polished the step of its
vehicle so as to create a dangerous, slippery
condition. As a result, the plaintiff alleged that
she slipped off the step and fell. The defendant
denied that it polished the step in question or that
it was dangerously slippery.
The plaintiff was a female who was approximately six
months pregnant at the time of the fall. She testified
that she was driving a U-Haul vehicle rented from the
defendant for a family move. When she stepped out
of the driver’s side onto a step, the plaintiff testified
she slipped and fell to the ground landing on her buttocks and back. The plaintiff contended that the step
had been coated by the defendant with Armor All, a
product which made it excessively slippery.
The plaintiff was diagnosed with disc herniations in her
cervical and lumbar spine, which her family physician
causally related to the fall. The plaintiff was examined
Volume 26, Issue 9, September 2011
at the emergency room where it was determined
that her unborn fetus had not been harmed by the
fall.
The defendant’s employee, who had detailed the
truck in question, testified that he only washed the vehicle and did not shine it with Armor All, or any other
product. However, plaintiff’s counsel attempted to
impeach this witness with a statement taken from another employee of the defendant who indicated that
Armor All was used on the back of the vehicle.
The defendant’s orthopedic surgeon testified that he
reviewed the plaintiff’s diagnostic film and did not see
disc herniations. On cross examination, plaintiff’s
counsel established that the lumbar MRI film reviewed by the plaintiff’s expert was incomplete as the
procedure had been halted due to claustrophobia
on the part of the plaintiff and that the expert did not
look at the plaintiff’s cervical films.
The case was tried as a bench trial with an award of
$40,000 to the plaintiff.
REFERENCE
Adams vs. U-Haul of Front & Hunting Park, et al. Case
no. 09-10-04550; Judge Eugene Maier, 04-12-11.
Attorney for plaintiff: James P. McGarrity in South
Coventry, PA.
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MOTOR VEHICLE NEGLIGENCE
Auto/Pedestrian Collision
$600,000 RECOVERY
Motor Vehicle Negligence – Auto/Pedestrian
Collision – Trucking making left turn strikes
pedestrian in crosswalk – TBI superimposed on
ADHD – Fractured skull – Fractured clavicle
requiring surgery – TMJ Dysfunction.
Hudson County, New Jersey
The plaintiff pedestrian, then 19, was struck by a
commercial vehicle making a left hand turn at an
intersection in Jersey City. The plaintiff could not
remember the happening of the accident due to
retrograde amnesia. The plaintiff contended that
the inferences to be drawn from the direct and
circumstantial evidence was that she was walking
in a business district, looking for a job and was
crossing the intersection at the crosswalk when
she was struck. The defendant driver told the
police she ran out into the side of his truck. An
individual working in at a local business heard
the commotion after the accident and took
pictures of where the truck came to rest, with its
front wheels over the crosswalk.
The plaintiff suffered two skull fractures which did not
require surgery. The plaintiff maintained that she was
in an altered mental state for about six days after the
accident although the defense disputed the extent of
the altered mental status. The plaintiff was hospitalized for one week and then transferred to a rehabilitation center for approximately one week. The plaintiff
contended that she suffered a traumatic brain injury
manifested by difficulties with memory, concentration
and emotional lability. The plaintiff was evaluated by
a neuropsychologist on two occasions with
recommendations for cognitive therapy.
She also suffered a fractured clavicle which required
an open reduction and internal fixation to correct a
non-union and to increase her right shoulder mobility
which was partially locked out by the fracture. The
plaintiff also suffered injuries to her TMJ requiring two
endoscopic procedures. The plaintiff further contended that she suffered a relatively mild to moderate hearing loss to her right ear due to impacting with
the ground.
The plaintiff suffered from well documented ADHD
prior to the accident. She had been fully evaluated in
high school two years before the accident at her own
request and her mother’s request. There was a full
workup by a child study team and she underwent ex-
tensive testing and classroom observation. A written
report documenting her ADHD and the school’s recommendations was issued. Her condition also required medication. She also suffered from episodes
of depression which were related to her blended
family circumstances.
The defense orthopedist, neurologist,
neuropsychologist, TMJ doctor and ENT physician
conceded casual relationship and gave plaintiff mild
to moderate permanency, but also opined that
some of her symptoms were preexisting and attributable to her ADHD only. The defendant’s psychiatrist
also contended that the plaintiff was untruthful regarding an alleged recreational drug use. There was
evidence of benzodiazepines in the plaintiff’s laboratory studies at the hospital upon admission. The psychiatrist asked her if she ever took recreational drugs
in his interview and then attempted to use the lab
studies to impugn her credibility. The defense’s orthopedist also used this finding in his report. The plaintiff
would have rebutted this allegation by the plaintiff’s
emergency room expert who reviewed the medical
records and opined that benzodiazepines were used
in the field to intubate the plaintiff.
The case settled prior to trial for $600,000.
REFERENCE
Plaintiff’s accident reconstruction expert: Steven
Schoor, PE from Abington, PA. Plaintiff’s emergency
medicine expert: Randy Tartacoff, MD from Hamilton,
NJ. Plaintiff’s examining orthopedist expert: Paul
Fodai, MD from Jersey City, NJ. Plaintiff’s examining
neurologist expert: Alexander Pendino, D.O from
Hamilton, NJ. Plaintiff’s TMJ expert: Robert
Fedderman, DDS from Fort Lee, NJ. Plaintiff’s
Treating neuropsychologist expert: Kenneth Kutner,
PhD from Englewood & Cranbury, NJ. Defendant’s
ENT specialist expert: Howard Berg, MD from West
Orange, NJ. Defendant’s neurology expert: Eric
Fremed, MD from Englewood Cliffs, NJ. Defendant’s
orthopedist expert: Ralph Ricciardi, MD from Jersey
City, NJ. Defendant’s psychiatrist expert: William
Head, MD.
Case info omitted upon request.
Attorney for plaintiff: Gerald D. Siegel of Siegel &
Siegel, PC in Plainsboro, NJ.
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Intersection Collision
$292,330 VERDICT
Motor Vehicle Negligence – Intersection Collision
– Defendant strikes the rear of plaintiff’s vehicle
after swerving to avoid another turning vehicle –
Permanent radicular symptoms to the left arm and
hand.
Sussex County, Delaware
In this motor vehicle negligence case, the male
plaintiff claimed he suffered injuries to his neck
and left upper extremity when the defendant
struck the plaintiff’s vehicle in the rear after
swerving to avoid striking the rear of the vehicle
that was traveling in front of the defendant. The
non party vehicle that was traveling in front of the
defendant had stopped to initiate a right turn. The
defendant argued that he was faced with a
sudden emergency and could not avoid striking
the plaintiff.
On September 18, 2006, at the intersection of Old
Furnace and German Roads near Seaford, Delaware,
the plaintiff was lawfully stopped on German Road.
He observed the defendant’s truck driving to the right
side of another vehicle on Old Furnace Road at a
high rate of speed requiring the defendant to swerve
in order to avoid striking the other vehicle. As a result
of the swerve, the defendant struck the rear of the
plaintiff’s truck.
The plaintiff suffered cervical nerve root injury, left elbow impingement, pain and numbness to left arm
and hand and depression. The plaintiff asserted that
the defendant failed to keep a proper lookout and
was inattentive while driving for which he received
and citation and pled guilty. The defendant countered that he was not negligent, but acted reasonably in response to a sudden emergency created by
the other vehicle’s failure to put on his right-hand turn
signal.
The jury found for the plaintiff and awarded him
$292,330.
REFERENCE
Scott O’Riley vs. Shawn Rogers. Case no. S08C-07020; Judge Richard F. Stokes, 12-18-10.
Attorney for plaintiff: Edward C. Gill, Esquire in
Georgetown, DE. Attorney for defendant: Mary E.
Sherlock, Esquire in Dover, DE.
$175,500 VERDICT
Motor Vehicle Negligence – Intersection Collision
– Defendant fails to stop at red light – Significant
knee injuries.
Cook County, Illinois
In this action for motor vehicle negligence the
plaintiff alleged that he was injured when the
defendant failed to stop for a red light. The
defendant generally denied the allegations and
argued that it was the plaintiff who failed to
observe the red traffic signal.
At the time of the accident, the plaintiff was operating a vehicle owned by the Chicago Transit Authority.
The defendant was operating a school bus. According to the plaintiff, as both parties approached a local intersection, the defendant failed to stop for a red
light and struck the plaintiff’s vehicle. As a result, the
plaintiff suffered injuries to both of his knees.
gence was the direct and proximate cause of the
plaintiff’s injuries insofar as he failed to use the degree
of care that an ordinary prudent person would have
used in similar circumstances.
The defendant generally denied the allegations. In
addition, the defendant argued that it was the plaintiff who failed to observe the red traffic signal.
Ultimately, on July 22, 2011, a jury found in favor of
the plaintiff and awarded a total sum of $175,500.
REFERENCE
Cumer vs. Parker, et al. Case no. 2009L012120;
Judge Susan McDunn, 07-22-11.
Attorneys for plaintiff: Ubi O. O’neal in Chicago, IL,
and Paul Otubusin of Otubusin & Associates in
Chicago, IL. Attorney for defendant: Patrick Dowd of
Dowd & Dowd Ltd in Chicago, IL.
Consequently, the plaintiff sued the defendant; arguing that the defendant failed to stop for the red light.
Thus, the plaintiff asserted that the defendant’s negli-
Volume 26, Issue 9, September 2011
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Left Turn Collision
$500,000 RECOVERY
Motor Vehicle Negligence – Left Turn Collision –
Female plaintiff T-boned by street-sweeper –
Broken wrist.
Bronx County, New York
In this case a woman successfully sued after being
T-boned by a street sweeper. The case was settled
for approximately $500,000.
On June 25, 2005 the plaintiff was driving in the rightmost traffic lane on University Ave in New York City. At
that same time, a New York City street sweeper was
proceeding on University Avenue in the shoulder, to
the right of the plaintiff’s vehicle. At the intersection
with 176th street the defendant’s vehicle made a left
turn up a one-way street against the flow of traffic, in
the process colliding with the passenger side of the
plaintiff’s vehicle.
The plaintiff suffered a fractured distal radius and a
broken wrist. She later underwent open reduction and
internal fixation surgery at Columbia Presbyterian. Her
medical expenses for treatment were approximately
$49,000
The plaintiff filed suit in the Supreme Court of New
York, Bronx County for motor vehicle negligence. The
plaintiff sought recovery of damages for past medical expenses, as well as pain and suffering. The plaintiff argued in opening statements that the city of New
York had violated their internal rules and regulations in
the operation of the street sweeper and as a result of
making a turn up a one-way street. The city argued
that the plaintiff could have avoided the collision and
did not. Expert testimony was submitted by the orthopedic surgeon and Chief of Surgery at Columbia
Presbyterian.
The matter was settled on the first day of trial after
opening statements for $500,000.
REFERENCE
Plaintiff’s Orthopedic Surgeon expert: Melvin
Rosenwassen.
Katherine Garden vs. City of New York. Index no.
6595-2006; Judge Stanley H. Green, 03-03-11.
Attorney for plaintiff: Glen Auletta of Gruenberg &
Kelly, LLP in Ronkonkoma, NY. Attorney for
defendant: Michael A. Cardozo of Law Department
for the City of New York in New York, NY.
Multiple Vehicle Collision
$525,000 COMBINED POLICY LIMIT RECOVERY
Motor Vehicle Negligence – Multiple Vehicle
Collision – First defendant driver loses control and
drives into oncoming traffic – Plaintiff takes
evasive action and is rear-ended by second
defendant driver – Lumbar and cervical
herniations superimposed on previously
asymptomatic degenerative disc disease – Lumbar
fusion.
The plaintiff contended that he suffered lumbar and
cervical herniations that were confirmed by MRI. The
plaintiff maintained that although the films also
showed degenerative disc disease, he was previously
asymptomatic. The plaintiff maintained that because
of the superimposition of the herniations on the prior
conditions, he will permanently suffer extensive symptoms, notwithstanding a lumbar fusion.
Monmouth County, New Jersey
The plaintiff, who is a carpenter, was unemployed at
the time of the collision, and made no income
claims.
The plaintiff driver in his early 50s, who was
traveling south on Route 18, contended that the
initial defendant driver, proceeding north on
Route 18, lost control and swerved onto the oncoming lanes. The plaintiff maintained that as he
took evasive action, he was struck in the rear by
the co-defendant driver, whom the plaintiff
contended was traveling too closely and failed to
make adequate observations. There was no
contact between the plaintiff’s car and the crossover defendant’s vehicle. The rear striking
defendant contended that he was confronted with
a sudden emergency and denied that he was
negligent.
The case settled prior to trial for the cross-over defendant’s $500,000 policy limits ($485,649 less property
damage already paid to the plaintiff) and the co-defendant’s $25,000 policy limits.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Hoan Nguyen,
MD from Ocean Twp., NJ.
Colangeli vs. Masur, et al. Docket no. MON-L-191110, 04-11-11.
Attorney for plaintiff: Samuel J. Vacchiano of Maggs
& McDermott , LLC in Brielle, NJ.
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$100,800 VERDICT
Motor Vehicle Negligence – Multiple Vehicle
Collision – Failure to stop for red light –
Defendant causes chain reaction collision, forcing
non-party driver to rear end plaintiff – Headaches
– Herniated cervical discs – Aggravation of
preexisting lumbar disc herniations – Damages/
causation only.
Palm Beach County, Florida
The plaintiff alleged that the defendant drove
through a red light and struck a non-party
vehicle, which was then propelled into the
plaintiff’s car. The defendant stipulated to
negligence, but disputed the injuries that the
plaintiff alleged to have sustained as a result of
the accident.
The plaintiff was a 49-year-old man at the time of the
collision. The plaintiff’s doctors testified that the plaintiff sustained aggravation of a preexisting disc
herniation at the L3-L4 level and new herniations at
C4-C5 and C5-C6. The plaintiff’s neurosurgeon testified that future cervical surgery was recommended.
The plaintiff also complained of ongoing headaches
associated with the accident.
The defendant argued that the plaintiff had a five
year history of chiropractic treatment for lower back
and neck pain prior to the date of the collision. The
defense stressed that the plaintiff made no medical
complaints at the scene and did not seek treatment
until some 11 days post-accident. Testimony indicated that the plaintiff had exited his vehicle after the
collision and assisted the female whose car had
struck his car.
The defendant’s orthopedic surgeon testified that a
review of the plaintiff’s MRI films revealed osteophytes
which suggested that his cervical condition was degenerative and not caused by trauma. The plaintiff
countered that the osteophytes were on the opposite
side of the spine from the impingements. The defendant’s orthopedic surgeon also opined that the plaintiff was not a candidate for cervical surgery. The
defense introduced surveillance video depicting the
plaintiff lifting chlorine tubs and turning his neck with
no apparent difficulty.
The jury found that the plaintiff sustained a permanent injury and awarded him $100,800 in damages.
A prior trial resulted in a defense verdict and the
plaintiff was granted a new trial after arguing that the
defense improperly read new portions of the plaintiff’s
deposition testimony during closing statements in an
effort to impeach his credibility.
REFERENCE
Plaintiff’s neurosurgery expert: Douglas Martin from
Boynton Beach, FL. Plaintiff’s orthopedic surgery
expert: Frank Mruphy from Stuart, FL. Plaintiff’s
radiology expert: Sean Mahan from Maitland, FL.
Defendant’s orthopedic surgery expert: Kenneth
Jarolem from Plantation, FL.
Asher vs. Pantori. Case no. 502009 CA 025308;
Judge Edward Fine.
Attorneys for plaintiff: Philip A. Gold and Lance C.
Rudzinski of Gold & Gold in Coral Gables, FL.
Rear End Collision
$121,666 VERDICT
Motor Vehicle Negligence – Rear End Collision –
High school athlete suffers knee injury after being
rear-ended – Torn meniscus and other injuries to
right knee.
El Paso County, Texas
In this damages-only trial, a high school athlete
pursued hefty damages for the result of a knee
injury. The jury delivered a verdict of $121,000
for the plaintiff.
On March 24, 2006 the plaintiff Pedro C. was
stopped in the left-hand lane on a road in El Paso,
Texas, waiting on traffic as he prepared to make a
left turn. While stopped, the plaintiff was struck from
behind by a vehicle driven by the defendant. The
plaintiff sustained a torn meniscus, as well as scarring
around the popliteal tendon. He underwent two arthroscopic surgeries to his right knee.
pairment, and pain and suffering. The defendant admitted fault in the incident. Consequently, the subsequent trial was held for damages exclusively.
The two day trial saw the testimony of the plaintiff’s
medical expert and treating physician, Dr. Richard
Westbrook. The plaintiff was a cross country runner at
his high school prior to the wreck. He was forced to
stop running competitively due to the condition of his
knee. The defense argued that the plaintiff’s activities
as a runner caused or contributed to his condition, as
well as attempting to run after the collision.
After over three hours deliberation, the plaintiff returned a verdict for the plaintiff, awarding
$121,666.29 to the plaintiff Pedro C., including
$35,000 for pain and suffering, another $35,000 in redress of his physical impairment, medical bills and
pre-judgment interest.
The plaintiff filed suit in County Court #6 of El Paso
County for motor vehicle negligence. The plaintiff
sought recovery of medical damages, physical im-
Volume 26, Issue 9, September 2011
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25
REFERENCE
Plaintiff’s orthopedic surgeon expert: Richard
Westbrook from El Paso, TX.
Pedro Daniel Candelaria vs. Victor Gonzalez. Case
no. 2007-3876; Judge Sue Kurita, 04-25-11.
Attorney for plaintiff: Ben Langford of Ben Langford,
Attorney at Law in El Paso, TX. Attorney for
defendant: J. L. Jay of Windle Hood Alley Norton
Brittain & Jay, LLP in El Paso, TX.
$40,000 AWARD
Motor Vehicle Negligence – Rear End Collision –
Plaintiff is struck from behind at bridge tollbooth –
Tears to ACL and meniscus – Arthroscopic knee
surgery recommended.
Philadelphia County, Pennsylvania
The plaintiff alleged that his car was slowing for a
toll booth on the Walt Whitman Bridge in
Philadelphia when it was struck from behind by
the defendant’s vehicle. The defendant
maintained that the plaintiff did not sustain a
serious impairment of body function so as to meet
the applicable New Jersey limited tort threshold of
his automobile insurance policy.
Evidence showed that the plaintiff was driving into the
City of Philadelphia and that the collision geographically occurred in the State of Pennsylvania while still
on the Walt Whitman Bridge. The plaintiff had a limited tort insurance threshold in the state of New Jersey. The defense argued that there is concurrent
state jurisdiction on the bridge and therefore New Jersey law should apply. If the accident had occurred in
Pennsylvania (outside New Jersey jurisdiction) the
plaintiff would have been considered an out-of-state
driver and a full tort threshold would have been
deemed to apply. The court resolved the conflict of
laws issue by finding that the plaintiff’s injuries met
New Jersey’s limited tort threshold.
The case was tried under Pennsylvania Rule of Civil
Procedure 1311.1, capping damages at $25,000
and allowing admission of the plaintiff’s medical records and reports in lieu of live medical testimony.
The plaintiff was a man, approximately 40 years old
at the time of the collision. He testified that he struck
his knee on the steering column at the time of impact. The plaintiff claimed an ACL and meniscus tear
as a result of the accident. The plaintiff asserted that,
although he had preexisting knee symptoms, his prior
symptoms stemmed from injury to a different part of
his knee then was injured in the subject collision. The
plaintiff’s physician opined that future arthroscopic
knee surgery was indicated.
The defendant argued that the plaintiff had a history
of prior knee complaints and that his symptoms were
not causally related to the accident. The defendant
introduced a report from one of the plaintiff’s treating
orthopedic surgeons who opined that the plaintiff’s
meniscus tear was preexisting and the ACL tear was
asymptomatic. The defendant’s orthopedic expert
also opined that the plaintiff’s knee symptoms were
caused by a condition which preexisted the date of
the accident.
The case was tried as a bench trial, with an award of
$20,000 to the plaintiff. The plaintiff appealed the
case from an arbitration award for the defendant
(which found no serious impairment).
REFERENCE
Olszewski vs. Grace. Case no. 09-11-00943; Judge
Eugene Maier, 04-28-11.
Attorney for plaintiff: Nicholas L. Palazzo of DeFino
Law Associates, P.C., in Philadelphia, PA.
Single Vehicle Collision
$100,000 RECOVERY
Motor Vehicle Negligence – Single Vehicle
Collision – Plaintiff alleges defendant’s negligence
caused vehicle to flip – Dislocation, bruising, and
lacerations.
Orange County, California
In this action for motor vehicle negligence, the
plaintiff alleged that the defendant’s negligence
caused their vehicle to flip and proximately
caused her injuries. The defendant generally
denied the allegations.
On September 26, 2010 at approximately 5:37 p.m.,
the 17-year-old plaintiff and the defendant were traveling in the same vehicle on East Orangethorpe Avenue in Anaheim. The defendant was driving when he
lost control of the vehicle, causing it to flip.
As a result of the accident, the plaintiff sustained a
sternoclavicular dislocation and an apparent pulmonary contusion. She also sustained a laceration to her
foot, facial bruising and broken blood vessels to her
right eye. Thus, the plaintiff underwent surgery on the
right sternoclavicular joint, as well as closed reduction
with manipulation and intraoperative fluoroscopy of
the joint and the right shoulder. Moreover, post-surgi-
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cal repeat CT-scans revealed multiple small foci of
air in the mediastinum and a scope revealed hemorrhage on her left vocal cord. The plaintiff’s total
medical specials consisted of $48,000.
Ultimately, on April 5, 2011 this matter settled with the
plaintiff recovering a total sum of $100,000 which was
the defendant’s insurance policy limit.
REFERENCE
D.H., a minor vs. D.D., a minor. 04-05-11.
Attorney for plaintiff: Casey R. Johnson of Aitken,
Aitken & Cohn in Santa Ana, CA.
PREMISES LIABILITY
Fall Down
$400,000 RECOVERY
Premises Liability – Fall Down – Failure of
apartment owner and snow removal contractor to
adequately remove snow and ice from parking lot
– Elderly plaintiff tenant slips and falls on ice near
her car – Fractures of tibia and fibula – Open
reduction and external fixation – Plaintiff resides
in rehabilitation facility until unrelated death
approximately two years after fall.
Bergen County, New Jersey
The 87-year-old plaintiff tenant contended that
the parking lot was not properly cleared and that
chemical melting agents were not adequately
spread across the lot since the last snow event
that occurred three days earlier. The plaintiff
contended that as the tenant was walking to her
car in the morning, she slipped and fell on the ice,
suffering tibia and fibula fractures. The
superintendent indicated in his deposition that he
observed ice in this area of the lot the night
before and believed that the snow removal
contractor would return either that night or very
early the next morning. The snow removal
contractor denied that it was required to return
unless requested to do so and there was no
evidence that a call had been made to the codefendant.
cussed the presence of snow and ice in the lot the
evening before the incident. This statement was
crossed out, but remained legible. The defendant
landlord contended that it was subsequently determined that the super’s wife’s statement was inaccurate, accounting for the cross-out.
The plaintiff underwent surgery and the installation of
an external fixation device. The plaintiff required two
additional surgeries during the five day hospitalization
and was then transferred to a long-term rehabilitation
facility where she lived until her unrelated death approximately two years after the incident. The plaintiff
contended that prior to the fall, the tenant was very
independent and that the injuries deprived her of the
ability to enjoy her golden years.
The case settled after jury selection for $400,000, including $300,000 from the landlord and $100,000
from the snow removal contractor.
REFERENCE
Barnes vs. Lodi Circle Apts., et al. Docket no. BER-L659-09; Judge Alexander Carver, 03-07-11.
Attorney for plaintiff: Robert B. Linder of Law Offices
of Robert B. Linder in Englewood, NJ.
The evidence further revealed that several days after
the incident, the superintendent’s wife had given a
statement to the landlord’s carrier in which she dis-
$100,500 GROSS AWARD FOLLOWING BENCH TRIAL
Premises Liability – Fall Down – Plaintiff slips and
falls on syrup on floor of casino restaurant –
Fractured hip requiring surgical repair for 62year-old female plaintiff.
Hartford County, Connecticut
In this slip and fall matter, the plaintiff alleged
that the defendant casino was negligent in failing
to clean up syrup that had spilled on the floor of
the casino restaurant, causing her to suffer a fall
where she fractured her hip and required surgical
repair.
Volume 26, Issue 9, September 2011
The 62-year-old female plaintiff was a patron at the
defendant’s casino restaurant. While at the restaurant, the plaintiff slipped on syrup on the floor of the
casino and fell, fracturing her hip. The plaintiff alleged
that the defendant casino had ample time to clean
up the mess, yet failed to take any action to clean
up the syrup which created a dangerous condition
and caused the plaintiff’s fall.
The plaintiff brought suit against the defendant casino
alleging negligence in permitting the dangerous condition to exist, failing to clean up the spill in a timely
manner and in failing to warn patrons of the syrup on
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the fall so as to prevent any falls. The defendant denied liability. The defendant argued that there was no
evidence that it had notice of the syrup spilled on the
floor and it had no idea how long the syrup had
been on the floor.
The matter was tried in a bench trial. At the conclusion of the trial, the court determined that liability was
25% to the plaintiff and 75% to the defendant casino. The court awarded the total sum of $100,500 in
damages to the plaintiff as a result of her injuries.
27
REFERENCE
Witham vs. Mohegan Tribal Gaming Authority, et al.
Case no. Withheld; Judge Frank Manfredi, 03-01-11.
Attorney for plaintiff: Thomas P. Cella of Howard
Cohn Sprague & FitzGerald in Hartford, CT. Attorney
for defendant: Richard F. Banbury of Rome
McGuigan in Hartford, CT.
$100,000 VERDICT
Premises Liability – Fall Down – Failure of
defendant grocery store to keep its premises in a
reasonably safe condition – Plaintiff slips on
unidentified dark substance on the floor – Arm
fracture.
Oklahoma County, Oklahoma
In this premises liability action, the 69-year-old
female plaintiff claims that the defendant grocery
store failed to keep its premises in a reasonably
safe condition allowing a foreign substance to
accumulate on the floor. While shopping, the
plaintiff slipped on this substance and broke her
arm. The defendant argued that the plaintiff
failed to watch where she was walking and that
the plaintiff could have avoided the open and
obvious condition on the floor.
On July 2, 2008, the female plaintiff was shopping at
the defendant grocery store when she slipped and
fell as a result of an unknown object or substance
that was present on the floor. The incident was
caught on surveillance film and the plaintiff went
down hard. As a result she suffered a broken arm.
The plaintiff alleged that the defendant failed to keep
its premises in a reasonably safe condition and failed
to inspect and clean the premises. The defendant
countered that the plaintiff failed to watch where she
was walking and failed to take measures to ensure
her own well-being.
The jury found the defendant 75% negligent and the
plaintiff 25% negligent. The jury awarded the plaintiff
$100,000, which was reduced accordingly to
$75,000.
REFERENCE
Mary Tackett vs. Country Boy Market. Case no. 092054; Judge Bryan C. Dixon, 01-11-11.
Attorney for plaintiff: Joe S. Carson of Homsey
Cooper, Hill & Carson in Oklahoma City, OK.
Attorney for defendant: Chris Harper in Edmond, OK.
DEFENDANT’S VERDICT
Premises Liability – Fall Down – Slip and fall on
ice in parking lot – Broken femur.
Clay County, Missouri
In this slip and fall matter, the plaintiff alleged
that the defendant store was negligent in failing
to keep its parking area free from ice. As a result
of a patch of ice, the plaintiff fell as he was exiting
his vehicle and broke his femur. The defendant
denied the allegations and maintained that the
plaintiff failed to keep watch and caused his own
injuries.
The male plaintiff entered the parking lot of the defendant’s store on January 30, 2008. As he was exiting his vehicle, the plaintiff contended that he
slipped and fell on ice which had accumulated in
the parking lot and fell. As a result of the fall, he sustained a fractured femur. The plaintiff alleged that
the defendant permitted large piles of snow which
were melting to run across the parking lot which froze
and created the patch of ice upon which the plaintiff
fell.
The defendant denied the allegations of negligence.
The defendant maintained that it had taken necessary precautions and the plaintiff was under an obligation to exercise due care. The defendant
contended that the plaintiff’s injuries were caused
solely as a result of his own negligence.
The matter was tried. At the conclusion of the trial, the
jury returned its verdict in favor of the defendant and
against the plaintiff. The jury determined that the
plaintiff was entirely at fault for his injuries.
REFERENCE
Bruce Manning vs. Hy-Vee Inc. Case no. 09CYCV20488; Judge Larry Harman, 06-28-11.
Attorney for plaintiff: Edward F. Ford III of Ford &
Cooper in Kansas City, MO.
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Falling Object
$100,000 VERDICT
Premises Liability – Falling Object – Light falls
from ceiling onto head of seated plaintiff – Head
contusion – Missed work.
New York County, New York
In this premises liability action, the plaintiff
worker brought suit against the building’s owners
after being hit in the head by a falling light. The
defendant owner of the building denied
responsibility for the injury.
The plaintiff alleged that she was sitting at her desk at
work when a light fixture fell out of the ceiling and
struck her in the head. She suffered a head contusion
and was out of work for a significant period of time.
As a result, she brought legal action against the building’s landlord.
The defendant building owner contended that he
was not liable for the accident on the grounds that
the lighting was not his responsibility. Instead, the de-
fendant claimed that the light was in the control of
the tenant, who was the plaintiff’s employer. The
plaintiff countered that the light, which was old, had
actually been put in by the landlord, and not the
tenant employer.
The parties had in place a high/low agreement of
$600,000/$100,000.
The jury found for the plaintiff and awarded her
$75,000. She received $100,000 pursuant to the high/
low agreement.
REFERENCE
Murillo vs. Rosen Group Properties, et al. Index no.
107381/2006; Judge Saliann Scarpulla.
Attorney for plaintiff: Sherry Sarbofsky in Queens
Village, NY.
Hazardous Premises
$975,000 RECOVERY
Premises Liability – Hazardous Premises – Mother
sues after son, 24, falls from railing and dies.
Cook County, Illinois
This matter involved a wrongful death action
resulting from a man’s fatal fall over a railing. His
mother brought suit against the management
company of the offending property for improper
railing height.
On July 1, 2007 the deceased in this matter, Sean H.,
24, was attending a party at the home of his girlfriend
at a North Bissell apartment building in the Lincoln
Park district of Chicago, Illinois. The plaintiff fell from
the second-story balcony of the apartment and sustained traumatic brain injuries when he hit the concrete. He died seven months later as a result of his
injuries.
ten inches shorter than the 42 inches required Chicago building code. The plaintiff alleged that the fall
could have been prevented if the rails were the legally-required height. The building’s owner, Stammich
Management, was named as defendant in the suit.
The matter was settled with the property owner in pretrial mediation for $975,000.
REFERENCE
Jane Heflin vs. Stammich Management. Case no.
08L000407; Judge Kathy Flanagan, 09-12-11.
Attorneys for plaintiff: Steven M. Levin and Michael F.
Bonamarte, IV of Levin & Perconti in Chicago, IL.
Attorney for defendant: Bruce W. Lyon and Melanie
Ann Strubbe of LaBarge, Campbell & Lyon, L.L.C. in
Chicago, IL.
The plaintiff’s mother filed a wrongful death action in
the Circuit Court of Cook County, Illinois. The plaintiff
alleged that the railings over which her son fell were
$425,000 VERDICT
Premises Liability – Hazardous Premises – Several
inch height differential between courtyard and
sidewalk at defendant co-op – Plaintiff tenant trips
and falls – Meniscal tear – Continuing pain and
restriction – Need for knee replacement surgery in
near future.
Volume 26, Issue 9, September 2011
Bronx County, New York
The 72-year-old plaintiff, a tenant, contended that
a several inch height differential between the
defendant landlord’s courtyard and the sidewalk
had been present for a sufficient period of time
for the defendant to have constructive notice. The
plaintiff maintained that as a result of the height
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differential, she tripped and fell as she was
walking her granddaughter to the school bus. The
defendant denied that it had constructive or actual
notice of the condition.
The plaintiff maintained that upon raining conditions,
she had observed water pooling at the border for a
number of months, reflecting that the height differential had been present for a significant period of time.
The defendant questioned whether the incident occurred, pointing to the absence of any report to the
defendant after the fall. The plaintiff countered that
she initially believed that she had not suffered a significant injury, and that when the condition deteriorated over the ensuing two days, she went to the E.R.
The defendant further contended that the plaintiff,
who lived at the premises, failed to make adequate
observations and was comparatively negligent.
The plaintiff contended that she sustained a tear of
the left medial meniscus and underwent arthroscopic
intervention. The plaintiff maintained that despite the
surgery and PT, she suffered a re-tear and underwent
a second arthroscopic knee surgery. The plaintiff’s orthopedic surgeon maintained that the difficulties
have continued and that the plaintiff will require knee
replacement surgery in the foreseeable future.
The defendant contended that any knee difficulties
were the result of a combination of degeneration
and a prior tear occurring seven and a-half years
earlier. The plaintiff countered that she had completely recovered and had been asymptomatic for a
long period,
The plaintiff was retired at the time of the fall.
The jury found the defendant 100% negligent and
awarded $425,000, including $150,000 for past pain
and suffering, $150,000 for future pain and suffering,
$25,000 for past medical bills and $100,000 for future
medical costs.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Sanjiv Bansal,
MD from Bronx, NY. Defendant’s orthopedic surgeon
expert: Maurice Carter MD from New York, NY.
Tolgut vs. Riverbay Corp., et al. Index no. 302596/08;
Judge Maryann Brigantti-Hughes, 04-11-11.
Attorney for plaintiff: Nicole M. Gill of Wingate
Russotti & Shapiro in New York, NY.
Negligent Maintenance
$365,000 RECOVERY
Premises Liability – Negligent Maintenance –
Plaintiff plumber contends wooden steps leading
to basement at defendant funeral home collapse
as plaintiff is descending in course of work –
Common peroneal and tibial nerve damage –
Foot drop.
Essex County, New Jersey
The 39-year-old plaintiff plumber contended that
the defendant funeral home owner, to whose
premises he was called to perform plumbing
work, negligently failed to adequately inspect and
maintain the wooden staircase leading to the
basement. The plaintiff contended that as a result,
the steps collapsed as he was descending after
performing a portion of his duties. The defendant
contended that it provided proper inspection and
maintenance.
The defendant also contended that that the plaintiff
altered the stairs when he dug a trench drain in the
basement, causing the incident. The plaintiff denied
that the stairs were altered in any way, as the trench
drain was eight to ten inches from the staircase.
The plaintiff maintained that he sustained permanent
common peroneal and tibial nerve damage in his
right lower leg and foot and that he has been left with
a relatively mild foot drop. The plaintiff contended
that he can no longer work as a plumber. The plaintiff, who continues to work as an estimator, maintained that his earnings are significantly less than
would otherwise have been the case.
The defendant disputed the severity of the nerve
damage to the plaintiff’s right foot and alleged the
“foot drop” had substantially resolved. The plaintiff
countered that that findings on EMG approximately
one year after the incident showed severe motor and
sensory nerve damage, and the plaintiff contended
that no additional improvement was likely to ever
occur.
The case settled after one day of trial for $365,000.
REFERENCE
Cuccia vs. Fiore Funeral Homes. Docket no. ESX-L1344-09; Judge Michael R. Casale, 05-17-11.
Attorney for plaintiff: Douglas D. Burgess of Icaza &
Burgess, PC in Newark, NJ.
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ADDITIONAL VERDICTS OF PARTICULAR INTEREST
Civil Rights
DEFENDANT’S VERDICT
Civil Rights – Violation of plaintiff’s protected
rights under the 5th and 14th Amendments and
the Americans with Disabilities Act – Wheelchairdependent plaintiff is placed under arrest by
defendants and is assaulted while in custody.
Oklahoma County, Oklahoma
The plaintiff in this civil rights case is a disabled
individual and is entitled to certain considerations
under the American with Disabilities Act. The
plaintiff alleged that the defendant officers
violated those rights and certain amendment
rights when they assaulted the plaintiff while he
was being booked for a misdemeanor crime. The
defendants denied all liability and claimed that
the plaintiff was comparatively negligent in
causing the incident.
In February of 2005, the plaintiff was arrested on a
misdemeanor charge and was processed in the defendant county jail by the defendant officers. At the
time of the booking, the plaintiff was in a wheelchair
as he suffered from multiple sclerosis and low back
problems which make walking extremely difficult.
While being booked the defendant officers ordered
the plaintiff to stand and the plaintiff told the officers
that he could not due to his medical conditions. The
officers informed the plaintiff that they did not believe
him and the officers tipped the wheelchair over,
knocking the plaintiff to the ground, kicking him while
he lay there.
The plaintiff claimed that as a result, the plaintiff suffered contusions to the body, emotional distress and
violation of his civil rights. The plaintiff alleged that the
defendant county failed to provide proper training
and supervision to the defendant officers. In addition,
the plaintiff also alleged that the defendant officers
assaulted the plaintiff and failed to provide all considerations and accommodations to a person with a
disability as required by law.
The defendants all denied all liability and argued that
the plaintiff caused or contributed to the incident by
his own conduct and actions. They also maintained
that the plaintiff was afforded all the rights available
to him and that only the force needed to enforce
compliance from the plaintiff was used.
The jury found in favor of the defendants.
REFERENCE
James E. Chaney, Jr. vs. The Board of County Commissioners of the County of Oklahoma John Whetsel
in his capacity as Oklahoma County Sheriff, Officers
Bradley Logan and John Doe. Case no. CJ-2008-359;
Judge Bill Graves, 01-20-11.
Attorney for plaintiff: Phillip O. Watts of Watts &
Watts in Oklahoma City, OK. Attorney for defendant:
James B. Robertson of Oklahoma County District
Attorney’s Office in Oklahoma City, OK.
Consumer Fraud
$8,070 VERDICT
Consumer Fraud – Deceptive Business Practices –
Plaintiff alleges that defendant materially
misrepresented accident history of vehicle.
dent damage. Thus, the plaintiff filed for suit for violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act (the “Act”).
Cook County, Illinois
At trial, the plaintiff testified that he had specifically
asked the defendant’s salesman about the vehicle’s
accident history. According to the plaintiff, the salesman represented that the vehicle had not been in an
accident. Additionally, independent witnesses who
looked at or repaired the car testified that there were
obvious signs of accident damage. Insurance documents and pictures also supported this claim. Therefore, the plaintiff argued that the defendant had
violated the Act by misrepresenting the accident history of the vehicle and the defendant knew or should
have known that the vehicle was in a prior accident.
In this action for consumer fraud, the plaintiff
alleged that the defendant misrepresented the
accident history of a vehicle in order to make a
sale. The defendant denied the allegations and
questioned the veracity of the vehicle’s alleged
accident history.
The plaintiff purchased a used 2001 BMW X5 from the
defendant for $14,140. Shortly after the purchase, the
vehicle began to experience a number of problems.
Upon tendering the vehicle for repairs, the plaintiff
learned it had sustained over $10,000 worth of acci-
Volume 26, Issue 9, September 2011
The defendant denied the allegations; arguing that
the plaintiff never asked if the vehicle was in an accident. In addition, the defendant contested whether
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31
the vehicle was actually in an accident. The defendant’s witnesses testified that based on his experience in the auto industry, he would see signs the
vehicle had been in an accident if it sustained
$10,000 worth of damage.
The plaintiff was ultimately awarded a total sum of
$8,070 which consisted of $7,070 in actual damages
and $1,000 in punitive damages.
REFERENCE
Plaintiff’s automobile valuation expert: Joseph
Pennacchio from Chicago, IL.
Carl Ridley vs. Milan Auto Sales, Inc. Case no.
09MI173104; Judge Wojkowski, 07-29-11.
Attorney for plaintiff: Eric Kaczander of Krohn &
Moss, Ltd. in Chicago, IL. Attorney for defendant:
David Richardson of Nery & Richardson, LLC in
Chicago, IL.
Contract
$116,063 VERDICT FOR DEFENDANT ON COUNTERCLAIM
Contract – Breach of oral partnership agreement –
Conversion of funds – Breach of fiduciary duty.
Delaware County, Pennsylvania
This action involved the dissolution of a joint
business enterprise between the plaintiff,
Thoman, and the defendant, Kelley. At issue were
of joint funds and assets including real estate
proceeds, life insurance policies and bank
accounts.
Evidence showed that the plaintiff and defendant did
not have a written agreement, but had an oral understanding that each would share 50% interest in an
enterprise called “Thoman and Daughter.” The business was originally a painting business owned by
Thoman’s father, but was taken over by the plaintiff
and defendant following his retirement. The plaintiff
and defendant shared duties in running the business
and maintained a business checking account as well
as a joint checking account.
The plaintiff and defendant jointly purchased real estate in Media and Aston, and formed a separate real
estate company, along with several others, for rehabilitation and resale of properties. The real estate
company subsequently bought and sold several
properties. Evidence showed that Thoman kept the
business books and had authority to write checks. It
was alleged that there was suddenly no money to
satisfy debts and no satisfactory explanation as to
where the business proceeds had gone.
The defendant contended that Thoman had taken
$100,000 as salary from a real estate purchase discount, had not turned over the defendant’s interest in
the sale of a restaurant, unilaterally cashed in a life
insurance policy on the defendant Kelley’s life and
deposited insurance proceeds from a jointly-held
property damage claim into an account held by
Thoman and her mother. The defendant also contended that Thoman’s mother, a licensed realtor, received referral fees for the various real estate sales
involved; yet performed no work in conjunction with
the sales and that the sales commissions were ultimately paid to Thoman. Thoman maintained that the
business proceeds were used for rehabilitation
projects and other legitimate business reasons.
The case was tried as a bench trial with an award to
the defendant Kelley on her counterclaim in the
amount of $116,064.
REFERENCE
Thoman vs. Kelley. Case no. 06-13046; Judge Chad
F. Kenney, 03-29-11.
Attorney for defendant Kelley (plaintiff on the
counterclaim): Edward A. Savastio of Law Offices of
Stanley E. Luongo, Jr. in West Chester, PA.
F.E.L.A.
$500,000 VERDICT
F.E.L.A. – Negligent training – Train door closes
on railroad employee’s arm while walking
through moving train – Reflex sympathetic
dystrophy in the right arm.
New York County, New York
In this F.E.L.A. case, a railroad employee injured
on the job sued her employer for negligent
training after a train door closed on her arm.
On October 20, 2004, the plaintiff was an employee
of the defendant Metro-North Commuter Railroad.
The plaintiff, an administrative assistant, was traveling
on the railroad’s Harlem line train while handing out
rider-satisfaction surveys to passengers. While walking
between two train cars, her balance was disrupted
and one of the car’s doors closed on her upper right
arm.
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The plaintiff alleged that the impact of the door on
her right arm resulted in a painful, permanent condition called reflex sympathetic dystrophy. In December 2005, the plaintiff had a spinal-cord stimulator
implanted for pain alleviation. She was further prescribed painkillers for her condition. She has claimed
that her condition leaves her unable to work and encumbered in performance of household tasks.
The plaintiff filed suit in the Superior Court of New York,
New York County for negligent training, arguing that
the defendant Metro-North failed to prepare her for
tasks that involved proceeding through a moving
train. She claimed that this failure constituted a violation of the Federal Employers Liability Act. Damages
were sought for lost earnings and pain and suffering.
Lennon argued not only the negligence of MetroNorth, but their further conspiracy with healthcare professionals to downplay her medical condition. The
plaintiff named several parties in the healthcare
management system to whom she was referred as
co-defendants, including her treating neurologist, Dr.
Marc A. Those defendants were later removed from
the suit after Judge Tingling ruled that Dr. Mark A., the
plaintiff’s treating physician, did not intentionally inflict
emotional distress on the plaintiff in his alleged alteration of medical reports at the railroad’s request.
The plaintiff’s experts testified at trial to the causation
of the incident for the plaintiff’s condition, as well as
the details of her injury and its permanence. A psychiatrist was also brought to testify to the plaintiff’s affliction with post-traumatic stress due to the mental
impact of her injury. The plaintiff’s railroad safety expert was disqualified from testifying by Judge
Rakower. The plaintiff’s treating neurologist, pain management specialist, and psychiatrist also testified.
The defendant Metro-North argued that the plaintiff
had been given proper instruction, including advising
her regarding footwear and not to proceed between
cars while the train was in motion. The railroad also
noted the signs on interior doors also advising not to
open doors while the train was in motion. The defense
further disputed the diagnosis of reflex sympathetic
dystrophy. A neurologist was called to testify as an
expert witness to this effect.
A high/low was negotiated, stipulating that damages
could not exceed $425,000, but had to equal or exceed $60,000. A further condition was made that recovery would not become subject to post-trial motion
or appeal.
The jury returned a verdict for the plaintiff, finding both
the defendant Metro-North and the plaintiff respectively 60% and 40% negligent for the plaintiff’s injuries.
The plaintiff recovered $500,000, including $200,000
in past pain and suffering, as well as $300,000 in future pain and suffering. Her final award, after comparative negligence reduction and FELA modification
of damages for the present, came to $267,000.
REFERENCE
Plaintiff’s neurology expert: Christopher Winfree
from New York, NY. Plaintiff’s orthopedics expert:
James McWilliam from Harrison, NY. Plaintiff’s pain
management expert: Kevin Sperber from New York,
NY. Plaintiff’s psychiatry expert: Kenneth Cohen from
New York, NY. Plaintiff’s railroad operations expert:
Richard Beall from Miami, FL. Defendant’s neurology
expert: Brian Hainline from New York, NY.
Eleanor Lennon vs. Metro North Commuter Railroad
Co., et al. Index no. 102753/2005; Judge Eileen A.
Rakower, 12-09-10.
Attorney for plaintiff: William Greenberg of
Greenberg & Massarelli, LLP in Purchase, NY.
Attorney for defendant Metro-North Commuter
Railroad Co: Ronald E. Joseph of Landman, Corsi,
Ballaine & Ford in New York, NY. Attorney for
defendant: Heidell, Pittoni, Murphey & Bach in New
York, NY. Attorney for defendant: Greenberg,
Dauber, Epstein & Tucker in Newark, NJ. Attorney
for defendant: Savona & Scully in New York, NY.
Fraud
$2,068,750 AWARD
Fraud – Misappropriated funds – Cash transfer
company sues former employee convicted of First
Degree Grand Larceny.
New York County, New York
In this case, a currency exchange company sued
for recovery of over $2 million stolen by an
employee. The defendant pleaded guilty on
December 17th to Grand Larceny. The judge ruled
for the plaintiff after inquest, requiring the
defendant’s repayment of the stolen money. The
defendant is currently incarcerated in New York.
Volume 26, Issue 9, September 2011
The defendant, 33, was hired by the plaintiff company, a foreign currency exchange dealer, in January 2001 and was promoted in July 2006 to sales
manager at the retail at One New York Plaza in the Financial District of New York City. This store provided
cash disbursement services, including the cashing of
personal checks and disbursement of foreign currency to customers including Goldman Sachs partners and employees. At this location, the defendant
provided customer service, as well as handling disbursement of money and other operational tasks.
The defendant was arrested on March 24, 2008, and
charged with Felony Larceny for the theft of funds
from the plaintiff. An investigation by the Manhattan
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District Attorney’s Office revealed that she removed
and kept money from the safe and created false
transactions in the computer accounting systems. The
defendant’s supervisors noticed the irregularities in
March 2008 and notified the New York City Police Department. At the time of her arrest, her salary with the
plaintiff was $40,000 annually. The defendant later
admitted to, between July 2006 and March 2008,
stealing $2,068,750.06 from her employer. She was
found guilty of First Degree Grand Larceny in New
York State Supreme Court.
The plaintiff filed suit for recovery of the stolen funds in
the New York Supreme Court, New York County Division. Sought was “at least $2,068,750.06 that [the de-
fendant] stole from Plaintiff”, according to plaintiff’s
petition, further seeking “compensation for the consequences of [the defendant]’s misconduct.” The defendant employee was named as sole defendant.
After an inquest, the judge awarded the total
$2,068,750.06 plus pre-judgment interest.
REFERENCE
Travelex Currency Services vs. Shemika Maureen
Jackson. Index no. 104998/2008; Judge Joan Madden, 12-14-10.
Attorney for plaintiff: David G. Liston of Hughes,
Hubbard & Reed, LLP in New York, NY.
Municipal Liability
DEFENDANT’S VERDICT
Municipal Liability – Failure to warn of a curve in
the road – Single vehicle accident – Plaintiff’s
decedent is passenger in a pickup that leaves the
roadway – Wrongful death of 18-year-old.
Canandian County, Oklahoma
This lawsuit arises out of a single vehicle car
accident, in which the plaintiff’s decedent was a
front seat passenger. The driver of the vehicle lost
control of the vehicle while trying to negotiate a
curve and the vehicle left the roadway. The
decedent was ejected from the car, sustaining
fatal injuries. The defendant denied all negligence
and argued that the curve was visible and did not
require a sign.
On April 15, 2005, the 18-year-old decedent was a
passenger in a vehicle being operated by a friend on
a county road. The road was maintained by the defendant county. As the decedent’s host driver approached an intersection, he failed to properly
negotiate a curve in the road. As a result, the host
driver lost control of his pickup truck which then left
the roadway and rolled over several times.
The plaintiff’s decedent was ejected from the vehicle
and sustained fatal injuries. The estate of the decedent alleged that the defendant county was negligent in failing to properly maintain markings on the
roadway, failing to maintain a sign which would have
warned of the curve and failing to warn of the dangers of the road. The defendants alleged that they
did not breach any legal duty owed to the plaintiffs or
the decedents and asserted that no act or omission
by the defendant was the legal cause of damages
to the plaintiff.
The jury found in favor of the defendant.
REFERENCE
Estate of Trevor Nault by Walter and Shelly Nault vs.
The Board of County Commissioners of Canadian
County Oklahoma. Case no. CJ-2006-535; Judge Edward Cunningham, 09-15-10.
Attorney for plaintiff: Fletcher Handley of Handley
Law Center in El Reno, OK. Attorney for defendant:
Jamison Whitson in Oklahoma City, OK.
Negligent Supervision
$60,000 GROSS VERDICT
Negligent Supervision – Failure to halt “mosh pit”
activities at church concert – Plaintiff knocked to
the ground – Wrist fracture – Two surgeries
performed – 35% comparative negligence found.
Fayette County, Pennsylvania
The plaintiff, a 21-year-old male at the time,
brought this action against the defendant church
where he attended a band concert. The plaintiff
alleged that the defendant failed to supervise the
event, allowing the formation of a dangerous
“Mosh Pit”, or area where attendees crash into
each other. The plaintiff entered the Mosh Pit, was
knocked down and another individual fell on top
of him. The defendant argued that the plaintiff
assumed a risk of injury and that it halted the
activity as soon as it was detected.
The plaintiff alleged that the youth pastor in charge of
the music event was aware that attendees were
crashing into each other in the so-called “Mosh Pit”,
but failed to take prompt action to halt the activity.
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The plaintiff alleged that attendees were crashing into
each other for some 25 minutes before the plaintiff
was injured.
The plaintiff sustained a wrist fracture after he was
knocked to the floor and another individual fell on top
of him. He underwent open reduction and internal fixation of the fracture. A second surgery was also required after the initial fixation failed. The plaintiff’s
physician opined that the plaintiff has been left with a
permanent limitation of motion in the injured wrist.
The defendant argued that the plaintiff voluntarily entered the “Mosh Pit” and participated in the activity of
banging bodies together. The defendant’s youth pastor testified that he shut down the “Mosh Pit” as soon
as he saw it.
The jury found the defendant 65% negligent and the
plaintiff 35% comparatively negligent. The plaintiff
was awarded $60,000 in damages, reduced accordingly. Delay damages of $1,542 were added to the
plaintiff’s award.
REFERENCE
Champlin vs. Abundant Life Church Uniontown. Case
no. 2008-03470; Judge Gerald Solomon, 01-19-11.
Attorney for plaintiff: William M. Radcliffe of Radcliffe
& DeHaas, L.L.P. in Uniontown, PA. Attorney for
defendant: Scott E. Becker of Muchow, Becker &
Pasquarelli in Pittsburgh, PA.
Personal Negligence
$281,115 VERDICT WITH PLAINTIFF 70% NEGLIGENT
Personal Negligence – Jet Ski/Boat Collision –
Plaintiff alleges that the defendants’ boat was
following him too closely – Dislocated jaw –
Multiple injuries to chin, neck, shoulder, chest and
left leg alleged.
Pierce County, Washington
In this negligence matter, the plaintiff alleged that
the defendant boat owners were negligent in
colliding into the plaintiff’s jet ski causing him
injuries including a dislocated jaw. The
defendants maintained that the plaintiff was
negligent and turned around in front of their boat
abruptly, causing the collision.
The 16-year-old male plaintiff was operating a 1999
Sea Doo jet ski on an inlet on the lake where the incident occurred on July 17, 2005. The defendants, husband and wife, were operating their 2003 speedboat
in the same direction of travel as the plaintiff on the
lake. The plaintiff alleged that the defendants were
following too closely behind the plaintiff’s jet ski and
when he turned, the defendants’ boat collided into
him, causing him injuries. As a result of the collision,
the plaintiff claimed that he dislocated his jaw and
suffered injuries to his left leg, chest, shoulder, neck
and chin.
maintain a proper distance between their boat and
the plaintiff’s jet ski. The plaintiff alleged $46,115 in
medical expenses associated with the incident.
The defendants denied the allegations. The defendants maintained that the plaintiff, who had never
taken boat safety courses, abruptly turned his jet ski
around in front of the defendants’ boat and headed
toward them. They had insufficient time to react and
the collision occurred. The defendants’ maintained
that the collision and resulting injuries were caused
solely as a result of the plaintiff’s own negligence.
The matter was tried and at the conclusion of the
trial, the jury returned a verdict finding the plaintiff
70% liable and the defendants 30% liable for the
plaintiff’s injuries. The jury awarded the plaintiff the total sum of $281,115, which consisted of $46,115 for
medical expenses and $235,000 in non-economic
damages.
REFERENCE
Brent M. Maybury vs. Scoccolo. Case no. 09-2-143019; Judge Susan Serko.
Attorneys for plaintiff: John E. Zehnder, Jr. and
Anthony David Gipe of Scheer & Zehnder in Seattle,
WA.
The plaintiff brought suit against the defendants alleging negligence in the operation of the boat, including failure to keep a proper lookout and failing to
Racial Discrimination
DEFENDANT’S VERDICT
Racial Discrimination – African-American plaintiff
alleges that he was subjected to racial
discrimination by the defendants – Retaliatory
termination alleged – Humiliation.
Volume 26, Issue 9, September 2011
U.S. District Court, Southern District of Indiana
In this racial discrimination action, the African
American plaintiff alleged that he was subjected
to racial discrimination and then terminated in
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retaliation for complaining to the union about the
way he was being treated. The plaintiff alleged
that the defendant union failed to take action in
response to his claims of racial discrimination.
The defendants denied the plaintiff’s claims and
disputed that there was any racial discrimination.
The African American male plaintiff was employed as
an apprentice in December 2006 at the defendant
engineering company’s facility. The plaintiff contended that while he was working in this capacity he
was subjected to hostile racial actions from other
members of the union and his supervisor. The plaintiff
contacted the defendant union officials regarding
the situation and he was transferred. The plaintiff alleged that he was subjected to continued racial discrimination and slurs at the second location and he
brought this to the attention of the defendant union
officials. When he was reporting the disparaging
treatment to the union, he alleged that he was
terminated for using the telephone.
The plaintiff brought suit against the defendant employer alleging a racially hostile work environment
which subjected him to racial discrimination. Further,
the plaintiff alleged that the defendant union failed
to take affirmative action to grieve his wrongful termination and racial discrimination. The plaintiff also
sought injunctive relief.
The defendants denied the allegations. The defendant employer maintained that the plaintiff had
failed to notify them of any discrimination so it could
be investigated in a timely manner. The defendant
union denied the allegations and maintained that it
acted in the plaintiff’s best interests at all times. The
defendant union’s motion for summary judgment was
partially granted in that the court determined that the
plaintiff failed to prove that the defendant union did
not grieve the plaintiff’s termination.
The matter proceeded to trial. At the conclusion of
the trial, the jury found in favor of the defendants and
against the plaintiff. The jury determined that the
plaintiff failed to meet his burden of proof.
REFERENCE
Baron T. Mitchell vs. Plumbers and Steamfitters Local
Union No. 157 and Sycamore Engineering, Inc. Case
no. 2:08-cv-00230; Judge Jane Magnus-Stinson, 0127-11.
Attorney for plaintiff: Robert P. Kondras, Jr. of Hunt
Hassler & Lorenz in Terre Haute, IN. Attorneys for
defendant Union: Geoffrey S. Lohman and William R.
Groth of Fillenwarth Dennerline Groth & Towe in
Indianapolis, IN. Attorney for defendant Employer:
Craig M. McKee of Wilkinson Goeller Modesitt
Wilkinson & Drummy in Terre Haute, IN.
Transit Authority Liability
$105,000 VERDICT
Transit Authority Liability – Little boy slips and
falls on ice in a New York subway – Fractured
elbow.
Bronx County, New York
In this premises liability case, a 15-year-old-boy
fell on the ice in the New York subway. The jury
found the damages to be $210,000 but reduced
that amount by 50% in comparative negligence,
leading to a final award of $105,000.
On February 14, 2006 the plaintiff was traveling to his
Bronx-area school. While entering the subway’s underground passage during his commute, the plaintiff
slipped and fell on snow and ice left over from the 13
inch snowstorm approximately 36 hours before. The
plaintiff sustained a fracture of his right elbow, for
which he received a right elbow open reduction and
internal fixation procedure, with two screws, with ulnar
nerve transposition, as well as two months of physical
therapy. His total medical damages were $7,300.
The plaintiff’s family filed suit in his name in the Supreme Court of New York, Bronx County Civil Division
for premises liability, naming in the suit the New York
City Transit Authority. Sought were medical damages
and past and future pain and suffering for the injury to
the boy.
During the two week trial, the plaintiff argued that the
city had an obligation to keep the area clear of snow
and ice to prevent this sort of incident, especially in
light of the plaintiff having been on his way to a city
school which was open on the day in question. The
plaintiff brought a medical expert, an orthopedist,
who testified that there was little or no permanency to
the injury, as well as a meteorologist who testified to
the amount of time which had passed since the
abatement of the storm. The defendants argued
open and obvious on the condition of the premises in
question.
After a day and a-half, the jury returned with a
$210,000 verdict for the plaintiff, with a 50% reduction for comparative negligence. The plaintiff therefore collected $105,000 in damages on the suit,
primarily for pain and suffering.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Leon Sultan
from Forest Hills, NY.
Kazi J. Ahmed vs. New York City Transit Authority. Index
no. 022232/2006; Judge Kenneth L. Thompson, Jr.
Attorney for plaintiff: Adam L. Shapiro of Adam L.
Shapiro & Associates in Forest Hills, NY. Attorney for
defendant: Wallace D. Gossett, Esq. in Brooklyn, NY.
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36
VERDICTS BY CATEGORY
Wrongful Termination
DEFENDANT’S VERDICT
Wrongful Termination – Breach of contract –
Retaliation – Tortious interference with business
relationship – Plaintiff claims defendant president
of defendant company wrongfully terminated her
for complaining about unethical business
practices.
Plymouth County, Massachusetts
In this wrongful termination and retaliation
action, the plaintiff company controller claimed
she was fired because she complained about
policies at the defendant company. The plaintiff
named the defendant mail processing service
company and its president individually as
defendants. The defendant denied any unethical
policies and asserted that the plaintiff was fired
for insubordination.
The plaintiff asserted that she had complained about
unethical and possibly illegal accounting procedures
at the defendant firm. The plaintiff claimed that the
defendant was involved in improper accounting procedures and that she went over the head of the defendant president to report the incidents to a director
of the company.
At trial, the plaintiff called, as a witness, the director to
whom she had complained about the company’s
accounting policies. The plaintiff’s witness testified
that the defendant president should not have dismissed the plaintiff and that plaintiff was an excellent
staff member. The plaintiff’s witness stated that the
defendant president was steering the company toward bankruptcy with poor management practices,
including firing the plaintiff. The plaintiff also called
the head of the sales department who did not get
along with the defendant president and was dismissed by the defendant as well. The plaintiff’s coworker testified that the plaintiff was a good employee and that neither of them should have been
let go by the defendant.
The defendant argued that the plaintiff was dismissed
because she did not get along with anyone in the
company and because she failed to follow the directives of the defendant president, her supervisor. The
defendant asserted that the plaintiff was unstable, a
troublemaker, and disobeyed direct instructions not
Volume 26, Issue 9, September 2011
to communicate with the company director with
whom the defendant president was not getting
along. The defendant president testified that, if the
plaintiff had anything to say, she should go through
her supervisor.
The defendant maintained that the plaintiff undermined his authority by funneling unfavorable information to the director. The defendant president put forth
that the head of the sales department and the director were trying to overthrow him and take over the
company and that they enlisted the plaintiff to help
them to do so. The plaintiff was involved in a significant conflict with the defendant and had had an altercation with the defendant’s wife who was the
company’s human resources director. The defendant
asserted that the plaintiff generated memorandum
about the defendant which she sent to the company’s director to distract from her own inappropriate
conduct.
At trial, the defendants called several employees who
testified as to the squabbles the plaintiff caused in
the office, that she was unpopular with co-workers,
that she was difficult to work with did not get along
with fellow employees. The defendants also called
the company’s general counsel (who was also a director of the company) who testified that the defendant had instructed the plaintiff not to communicate
directly with the director. The defendants’ witness testified that he was on a conference call in which he
told the plaintiff directly that the defendant had the
right and authority to instruct the plaintiff not to communicate with the director and that she should not
do so.
The jury found that the plaintiff was not wrongfully terminated, there was no breach of the employment
contract, and that there was no intentional interference with a business relationship.
REFERENCE
Boyle vs. JLS Mailing Services, Inc., et al. Case no.
PLCV2005-00940, 11-30-10.
Attorney for defendant: Duncan J. MacCallum in
Portsmouth, NH.
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NOTES
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