SUMMARIES WITH TRIAL

Transcription

SUMMARIES
WITH TRIAL
ANALYSIS
SAMPLE ISSUE
$27,300,000 VERDICT – Asbestos – Woman contracts mesothelioma from exposure to husband pipe
installer’s work clothes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
$15,261,070 VERDICT – Medical Malpractice – Rehabilitation Facility Negligence – Failure to recognize
respiratory difficulties – Improper removal of trach tube – Failure to timely transport plaintiff for emergency care . . . . 2
$4,250,000 VERDICT – Medical Malpractice – Primary Care – Excessive administration of steroids to plaintiff
for treatment of Lupus – Myopathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
$6,650,000 VERDICT – Motor Vehicle Negligence – Auto/Pedestrian Collision – DUI defendant drives her
vehicle into decedent getting back in disabled vehicle – Decedent’s leg is severed and she is thrown 600 ft. down road . . 5
$2,244,063 VERDICT – Product Liability – Failure to Warn – Plaintiff victory in first lawsuit against
pharmaceutical Humira – Wrongful death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
$2,000,000 VERDICT – Product Liability – Manufacturing Defect – Plastic used in transvaginal mesh
allegedly unsafe for human implantation – Pain, bleeding, multiple surgeries . . . . . . . . . . . . . . . . . . . . . . . 7
CONFIDENTIAL RECOVERY – Product Liability – Defective design of transvaginal mesh – Second case
regarding product – Substantial health complications resulting from medical device failure . . . . . . . . . . . . . . . . 7
$1,125,000 RECOVERY – Dog Bite – Defendant’s dog pulls infant plaintiff from his bicycle and attacks him
– Traumatic lacerations – Puncture wounds – Surgery required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
$250,000 VERDICT – Civil Assault – Woman is raped by male client . . . . . . . . . . . . . . . . . . . . . . 8
$12,000 RECOVERY – Pregnancy Discrimination – Security companies are liable for pregnancy and disability
discrimination, and retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
VERDICTS BY
CATEGORY
Premises Liability (5)
Medical Malpractice (8)
Nursing . . . . . . . . .
Nursing Home Negligence
Ob/Gyn . . . . . . . . .
Physical Therapy . . . . .
Primary Care . . . . . . .
Radiology . . . . . . . .
Surgery. . . . . . . . . .
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Product Liability (2)
Defective Design . . . . . . . . 15
Manufacturing Defect. . . . . . 16
Motor Vehicle Negligence (10)
Auto/Bicycle Collision. . .
Auto/Moped Collision . .
Auto/Pedestrian Collision .
Auto/Horse Collision . . .
Left Turn Collision . . . .
Rear End Collision . . . .
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Fall Down . . . . . . . . . . . 22
Hazardous Premises . . . . . . 23
Employer’s Liability (5) . . . . . . . . 24
Additional Verdicts of Interest (10)
Construction Site Negligence .
Dram Shop . . . . . . . . . .
Excessive Use of Force . . . .
Fraud. . . . . . . . . . . . .
Insurance Obligation . . . . .
Personal Negligence . . . . .
Police Liability . . . . . . . .
Sexual Harassment . . . . . .
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Summaries with Trial Analysis
$27,300,000 VERDICT – ASBESTOS – WOMAN CONTRACTS MESOTHELIOMA FROM
EXPOSURE TO HUSBAND PIPE INSTALLER’S WORK CLOTHES.
Alameda County, California
In this matter, the wife of a man who worked with
asbestos sued for mesothelioma from an alleged
exposure. The matter was resolved by a jury trial
after the defendant denied liability.
In December 2011, the plaintiff Rose-Marie G. was diagnosed with mesothelioma, a form of cancer associated with asbestos exposure. The plaintiff was
exposed to asbestos in the form of Kaylo brand pipe
insulation while shaking out and washing her husband’s work clothing. From 1950 to 1958, the plaintiff’s then-husband worked as an insulator for a
company using Kaylo-brand products.
The plaintiff filed suit in the Alameda County Superior
Court for product liability. Rose-Marie G. named as
defendant Owens-Illinois, Inc., manufacturer of the
asbestos-containing products. The plaintiff sought recovery of past and future medical damages, as well
as non-economic and punitive damages. The defendant Owens-Illinois, Inc. denied being the cause of
her cancer.
Through evidence produced at trail, the plaintiff
showed that Owens-Illinois knew that asbestos exposure could cause death as early as the 1930s. Tests
conducted with Kaylo further showed that the product’s asbestos content could cause the fatal cancer.
The plaintiff showed that this notwithstanding, OwensIllinois, advertised Kaylo as “non-toxic”, and did not
reveal that the product contained asbestos.
At the conclusion of trial, the jury returned a finding
for the plaintiff, concluding that defendant was negligent, had failed to warn the plaintiff of their product,
that the product was defective, and that they further
intentionally failed to disclose information related to
the health threat posed by their product. Finally, the
jury found that the defendant had acted with malice,
oppression or fraud towards the plaintiff. Damages
were awarded in an amount of over $27 million in
damages, including $12,000,000 for pain and suffering, $4,000,000 for her husband’s loss of consortium,
$342,500 in economic damages, and $11,000,000
punitives.
REFERENCE
Martin & Rose-Marie Grigg vs. Owens-Illinois, Inc.
Case no. RG12629580, 06-05-13.
Attorneys for plaintiff: Joseph D. Satterley, Andrea
Huston, Ryan Harris and Michael Stewart Kazan,
McClain, Satterley, Lyons of Kazan Law in Oakland,
CA. Attorney for defendant: Eliot S. Jubelirer of Schiff
Hardin LLP in San Fransisco, CA.
COMMENTARY
The defense filed a motion for a new trial subsequent to the verdict. That motion was denied. The matter is currently being reviewed in appeals court.
$15,261,070 VERDICT – MEDICAL MALPRACTICE – REHABILITATION FACILITY
NEGLIGENCE – FAILURE TO RECOGNIZE RESPIRATORY DIFFICULTIES – IMPROPER
REMOVAL OF TRACH TUBE – FAILURE TO TIMELY TRANSPORT PLAINTIFF FOR
EMERGENCY CARE – RESPIRATORY ARREST – CARDIAC ARREST – ANOXIC BRAIN
INJURY TO 17-YEAR-OLD.
Weakley County, Tennessee
In this medical malpractice matter, the plaintiff
alleged that the rehabilitation facility and the
defendant physician were negligent in failing to
recognize the plaintiff’s respiratory distress after
the defendant physician negligently removed the
plaintiff’s trach tube without consulting the
plaintiff’s ENT or pulmonologist. As a result of
that negligence and the defendant’s failure to
timely get the plaintiff to the hospital across the
street, the plaintiff suffered respiratory and
cardiac arrest that resulted in brain damage to
the 17-year-old. The defendants denied any
deviation from acceptable standards of care.
The 17-year-old male plaintiff was involved in a motor
vehicle collision on June 23, 2007. He was hospitalized and on June 28th, a tracheostomy tube was
placed. On the morning of July 22nd, after his
tracheostomy tube had been capped for several
days, the tube was removed in anticipation of his
transfer to the defendant rehabilitation facility. The fol-
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SUMMARIES WITH TRIAL ANALYSIS
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lowing day, the plaintiff began to experience labored breathing and
tachycardia and the tube was reinserted by a surgeon. An ENT performed a nasopharyngoscopy which revealed subglottic edema. The
following day, July 24th, the plaintiff was transferred to the defendant
facility with the trach tube in place.
The hospital discharge orders included an order that the plaintiff return to
the hospital’s surgery clinic in two weeks for a trach checkup with the
plan that if all went well the trach tube would be slowly downsized and
capped. The capping trials were instituted at the defendant facility. At
times, the plaintiff was able to tolerate the trach tube being capped and
at other times, he was not. The defendant facility failed to return the
plaintiff to the surgery clinic for the ordered checkup. On the morning of
August 10th, the defendant physician, who saw patients at the defendant facility, removed the plaintiff’s tracheostomy tube. The defendant
physician removed the tube without consulting an ENT or a
pulmonologist.
Later that day, the plaintiff periodically complained of difficulty breathing. During that evening and early the following morning, he continued
to complain more steadily of difficulty breathing and a sensation that
something was caught in his throat. The defendant physician saw the
plaintiff at 8:30 p.m. that evening and at 1:45 a.m. ordered a nurse via
telephone to give the plaintiff Xanax to help him rest. At approximately
4:30 a.m., the plaintiff awoke in respiratory distress.
The defendant facility failed to call an ambulance to transport the plaintiff to the hospital across the street until 4:53 a.m. The plaintiff was in respiratory distress prior to arriving at the hospital and then went into
cardiac arrest in the emergency room. As a result of the cardiac and respiratory distress, the plaintiff suffered an anoxic brain injury. Endoscopic
examination on August 14th revealed a complete subglottic stenosis in
the area where the subglottic edema had been in June.
The plaintiff brought suit against the defendant facility and the defendant physician. The plaintiff contended that the defendants violated applicable standards of care by failing to recognize that the plaintiff was
experiencing difficulty with his airway and by failing to consult appropriate specialists and in failing to timely transport the plaintiff to the emergency department where his airway could be maintained. The
defendants denied the allegations and maintained that they complied
with the applicable standards of care and that the plaintiff’s respiratory
distress was not foreseeable. The defendants contended that the plaintiff’s breathing difficulties were caused by mucus and that the subglottic
stenosis developed after the tracheostomy tube was removed.
The matter proceeded to trial over a period of approximately one
month.
At the conclusion of the trial, the jury deliberated for four hours and returned its verdict in favor of the plaintiff and against the defendant. The
jury assessed liability at 60% to the defendant rehabilitation facility and
40% to the defendant physician. The jury awarded the plaintiff the sum
of $15,261,070; $2,206,767 of which was for past medical expenses and
was payable to intervening medical insurance providers.
REFERENCE
Plaintiff’s ENT expert: Douglas Holmes, M.D. from Raleigh, NC.
Plaintiff’s family practice expert: Larry Russell, M.D. from
Hendersonville, NC. Plaintiff’s nursing experts: Kathy Cogan, R.N. from
Boone, NC, and Dana Ebling, R.N. from Winchester, VA. Plaintiff’s
pediatric neurology expert: David Callahan, M.D. from Chesterfield,
MO. Plaintiff’s pulmonology expert: Jeff Selby, M.D. from Henderson,
KY. Defendant’s emergency medicine expert: Thomas Farrar, M.D. from
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Germantown, TN. Defendant’s ENT experts: Gaelyn
Garrett, M.D. from Nashville, TN, and Gregory
Hulka, M.D. from Durham, NC. Defendant’s
neurology expert: Owen Samuels, M.D. from Atlanta,
GA. Defendant’s nursing experts: Kathy Clark, R.N.
from Warm Springs, GA, and Nancy Warren, Ph.D.
from Warren, TN. Defendant’s physical rehabilitation
experts: James Farrage, M.D. from Bowling Green,
KY, and Richard Katz, M.D. from St. Louis, MO.
Cody Lee Wade by and through his conservators
Ronald Wade and Reba Wade vs. Rebound, LLC d/b/
a Heathsouth Cane Creek Rehabilitation Hospital; Susan S. Lowry, M.D. and Martin Medical Center P.C.
Case no. 4253; Judge William B. Acree, Jr., 07-03-13.
Attorneys for plaintiff: Daniel M. Gass of O’Neil
Parker & Williamson in Knoxville, TN; Randall L.
Kinnard and Mary Ellen Morris of Kinnard Clayton &
Beveridge in Nashville, TN; and Roy B. Herron of
Herron Law Office in Dresden, TX. Attorney for
defendants Rebound LLC: Buckner P. Wellford, Bruce
A. McMullen and Jennifer Sink of Baker Donelson
Bearman Caldwell & Berkowitz in Memphis, TN.
Attorneys for defendant Lowry, et al.: Dixie Cooper
and Chris Tardio of Gideon Cooper & Essary in
Nashville, TN.
COMMENTARY
The most interesting trial technique involved a particular document
in the rehabilitation hospital’s medical records, namely the transfer
document. The document was prepared when the plaintiff was being sent in respiratory distress/arrest from the rehabilitation facility to the hospital across the street. The plaintiff’s counsel did not
use this document during the trial until the defendant physician
and the defendant facility’s charge nurse both testified at trial that
the plaintiff’s oxygen level remained normal the entire time he was
at the rehabilitation hospital.
The doctor testified that she had no idea why the plaintiff suddenly
went into respiratory arrest after the EMS team arrived to transport
him to the emergency room. She also testified that the plaintiff was
stable. The transfer sheet, however, which was prepared by the
nurse at the defendant facility, documented an oxygen saturation
level of 82%. This was brought out through a witness on the last
day of testimony and the defendants did not have any answer or
explanation to the jury for this fact. Additionally, during a particularly effective cross examination of a defense expert, the doctor
came down off the witness stand and shook hands with the plaintiff’s attorney outside of the presence of the jury.
$4,250,000 VERDICT – MEDICAL MALPRACTICE – PRIMARY CARE – EXCESSIVE
ADMINISTRATION OF STEROIDS TO PLAINTIFF FOR TREATMENT OF LUPUS –
MYOPATHY.
First District, Hawaii
In this medical malpractice matter, the plaintiffs, a
patient and her parents, alleged that the
defendant physicians were negligent in
administering an excessive dosage of steroids in
the treatment of the plaintiff’s lupus. As a result of
the defendants’ negligence, the plaintiff suffered
from steroid-induced myopathy. The defendant
denied any wrongdoing and maintained that the
plaintiff was provided appropriate care.
The 14-year-old female plaintiff was experiencing
rashes, sores and shaky movements. While on vacation with her parents in Hawaii, her condition worsened and the plaintiffs sought the services of the
defendant physician. The plaintiff was diagnosed with
lupus. An MRI disclosed that the plaintiff had brain lesions which increased the likelihood of death from the
lupus. The defendant determined that the plaintiff
should undergo a steroidal treatment which was administered on an in-patient basis and consisted of
one mg of glucocorticoids a day for three days followed by 40 mg of steroids for four days. The plan
was that this regime called “pulses” was to be
repeated three more times.
The plaintiff’s condition improved initially; however,
the defendant did not decrease the amount of steroids that the plaintiff was administered despite her
improving health. As a result of the continuous administration of excessive amounts of steroids over a
period of four weeks, the plaintiff developed
myopathy which resulted in limiting her ability to
move due to the severe muscle weakness. She was
at one point paralyzed from the neck down. Although
she regained some use of her limbs, she is presently
wheelchair bound and has very limited movement.
The plaintiffs brought suit against the defendant alleging that the defendant physician was negligent in administering excessive steroid treatments which
resulted in permanent muscle weakness and in failing
to obtain informed consent from the plaintiff’s parents
regarding the side effects of the steroidal treatment.
The plaintiff contended, through expert testimony,
that once the plaintiff’s condition started to improve,
the steroids should have been tapered down. The defendant failed to do this and continued to administer
the same large dose to the plaintiff throughout the
pulses.
The defendant denied the allegations. The defendant
contended that the dosage was proper and there
was no deviation from acceptable standards of care.
The defendant maintained that because the plaintiff’s mother refused to consent to administration of a
chemotherapeutic agent along with a lower steroid
dosage, the defendant continued with the higher steroid dosage since it was working and an appropriate
course of treatment. The plaintiff argued that the defendant’s records indicated that the defendant doctor had no intention of reducing the steroid dosage
regardless of the parents’ position on the
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chemotherapeutic drug administration. Further, the
defendant argued that the muscle weakness suffered
by the plaintiff was as a result of the progression of
the lupus.
The matter was tried over a period of six weeks.
At the conclusion of the trial, the jury deliberated for
three days and returned its verdict in the total sum of
$4,250,000. The verdict consisted of $2,000,000 in
special damages; $1,000,000 for emotional distress;
$200,000 for physical pain and suffering; $1,000,000
for loss of enjoyment of life and $25,000 to each parent for loss of consortium.
REFERENCE
Plaintiff’s economist expert: Robert A. Male, Ph.D.
from Kamuela, HI. Plaintiff’s life care planner expert:
Jane Mattson, Ph.D. from Norwalk, CT. Plaintiff’s
neurology expert: Moris Danon, M.D. from New
York, NY. Plaintiff’s neurology experts: Henry
Kaminsky, M.D. from Washington, DC, and Peter W.
Rossi, M.D. from Honolulu, HI. Plaintiff’s pediatric
rheumatology expert: Bram Bernstein, M.D. from Los
Angeles, CA. Defendant’s pediatric neurology expert:
Harry Chugani, M.D. from Detroit, MI. Defendant’s
pediatric rheumatology experts: Marissa KleinGitelman, M.D. from Chicago, IL, and Elga
Rabinovich, M.D. from Durham, NC.
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Alyssa Ray, Michael Ray and Debbie Ray vs.
Kapiolani Medical Specialists. Case no. 06-01-115006; Judge Karen T. Nakasone, 03-20-13.
Attorney for plaintiff: Phillip Russotti of Wingate
Russoitti Shapiro & Halperin LLP in New York, NY.
Attorney for defendant: Kenneth S. Robbins of Alston
Hunt Floys & Ing in Honalulu, HI.
COMMENTARY
This matter was previously tried to verdict for the sum of
$6,100,000. An appeal was filed. On appeal, the Hawaii Supreme
Court ordered a new trial holding that certain evidence should not
have been admitted in the previous trial. That evidence specifically
concerned the defendant doctor’s failure to disclose to the plaintiffs
that she had limited experience with this type of treatment protocol
prior to commencing the treatment, and evidence surrounding the
plaintiffs’ claims that the defendant should have so informed the
clients and obtained their informed consent to treatment given
those facts.
During the period of time that the child was paralyzed from the
neck down due to the myopathy, she was unable to communicate
with her parents or others except for blinking her eyes in response
to questions posed. She also required a tracheostomy, ventilator
and feeding tube and suffered aspiration pneumonia and came
very close to death. She regained some of her use of her arms and
legs, but then lost this mobility once again. Presently, the plaintiff
is unable to walk and ambulates using a wheelchair. She is
presently 25 years of age.
$6,650,000 VERDICT – MOTOR VEHICLE NEGLIGENCE – AUTO/PEDESTRIAN
COLLISION – DUI DEFENDANT DRIVES HER VEHICLE INTO DECEDENT GETTING BACK
IN DISABLED VEHICLE – DECEDENT’S LEG IS SEVERED AND SHE IS THROWN 600 FEET
DOWN ROAD – WRONGFUL DEATH.
San Bernardino County, California
In this negligence case, the plaintiffs alleged that
the defendant was negligent in operating her car
while under the influence of alcohol and colliding
into the decedent’s vehicle, causing the decedent
to be thrown down the highway to her death. The
defendant denied the allegations and disputed
the nature and extent of the plaintiffs’ allegations
of damages.
On the morning of October 24, 2009, the 20-year-old
female decedent was operating her motor vehicle
driving a friend home. When her vehicle ran out of
gas, she parked on the side of the freeway. As she
was getting back into her vehicle, the defendant’s
vehicle swerved across the freeway and struck the
decedent. The decedent’s leg was severed from her
body and she was propelled 600 feet down the freeway as a result of the impact. She died as a result of
her injuries.
The plaintiffs brought suit against the defendant driver
alleging negligence in the operation of her vehicle.
The evidence disclosed that the defendant had
spent the night out partying with a friend and bar
hopping. At approximately 2:00 a.m., the defendant,
who was clearly intoxicated with a blood alcohol
level exceeding legal limits, got in her car to drive
home. As she was driving on the freeway, the defendant fell asleep behind the wheel, causing her vehicle to swerve and crash into the decedent’s vehicle
which was legally parked on the side of the road.
The defendant denied the allegations and disputed
liability for the decedent’s death. The defendant also
disputed the plaintiffs’ claim of damages. One week
prior to the trial in this matter, the defendant admitted
liability. The matter proceeded to trial solely on the issue of damages as a result of the admission of guilt.
At the conclusion of the two day trial, the jury deliberated for five hours and returned its verdict in favor of
the plaintiffs and against the defendant. The jury
awarded the plaintiffs the sum of $6,650,000 in damages. The verdict consisted of $650,000 for past loss
for the wrongful death and $5,000,000 for the future
loss for the wrongful death.
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REFERENCE
Sloan vs. Redmond. Case no. CIVDS 1014398; Judge
Michael A. Sachs, 07-10-13.
Attorney for plaintiff: Stewart R. Albertson of
Albertson & Davidson LLP in Ontario, CA. Attorney
for defendant: Scott B. Spriggs of Kinkle Rodiger &
Spriggs in Riverside, CA.
COMMENTARY
In the related criminal case, the defendant driver pleaded not
guilty for approximately three years. She then pled guilty and is
spending six years in prison as a result of the decedent’s death. The
defendant’s attorney chose to have the defendant wear her orange
prison clothing during the trial as a tactic to demonstrate to the
jury that the defendant was already being punished for the decedent’s death, most likely in an effort to reduce any damages that
the jury would award. The defendant also argued that the decedent’s death was “inevitable” and argued that the plaintiffs were
only seeking money. The jury failed to side with the defendant’s
position as evidenced by the jury’s award.
It was interesting to note that by changing the defendant’s position
from contesting to admitting liability one week prior to the trial,
the defendant succeeded in keeping the facts surrounding the crash
from the jury. Once liability was admitted and the case proceeded
solely on the issue of damages, the plaintiffs were limited to facts
pertaining to the loss of love, comfort, care, etc. resulting from the
decedent’s death. The jury voted nine to 12 on both the past and
future damage claims.
$2,244,063 VERDICT – PRODUCT LIABILITY – FAILURE TO WARN – PLAINTIFF VICTORY
IN FIRST LAWSUIT AGAINST PHARMACEUTICAL HUMIRA – WRONGFUL DEATH.
Jefferson County, Illinois
This matter saw the first trial related to the
pharmaceutical Humira. The case was heard by a
Cook County jury after the defendant denied
failure to pass on advisories of the drug’s side
effects to physicians.
In October 2009, Delores T. was prescribed Humira
(Adalimumab), a TNF inhibitor manufactured by the
defendant Abbott Laboratories, for rheumatoid arthritis. In early spring 2010, Delores began experiencing
chest pain and fevers. Physicians were unable to diagnose her condition for several weeks. She was in
time diagnosed with disseminated histoplasmosis, a
severe fungal infection, causing her multiple organ
failure. On March 20, 2013, Delores T. perished from
a heart attack unrelated to her histoplasmosis.
The plaintiff Milton T. filed suit on his wife Dolores’s behalf in the Circuit Court of Cook County, accusing the
defendant Abbott Laboratories of failure to warn the
plaintiff’s physicians of advisories regarding the
Humira. The plaintiff sought recovery of compensatory and punitive damages for the defendant’s failure
pass along the FDA alert, as required by law. The
plaintiff showed at trial that the defendant only informed doctors of the FDA alert 20 months after it
was issued, and ten days after the plaintiff was
hospitalized.
histoplasmosis. The jury found Abbott Laboratories
negligent and ordered it to pay $2,244,063.20 to
Plaintiff Milton T. on behalf of his wife.
REFERENCE
Milton Tietz, on behalf of Delores Tietz vs. Abbott Laboratories. Case no. 12-L-002715; Judge William J.
Haddad, 05-09-13.
Attorneys for plaintiff Milton Tietz: Jim M. Perdue Jr.,
Arnold Anderson Vickery & Fred Shepherd of Perdue
Kidd & Vickery in Houston, TX, and Gary D.
McCallister of Gary D. McCallister & Associates LLC in
Chicago, IL. Attorneys for defendant: Michael P.
Foradas, Kevin Van Wart and Brent Rogers of
Kirkland & Ellis, L.L.P. in Chicago, IL.
COMMENTARY
TNF inhibitors relieve joint inflammation through suppression of
the tumor necrosis factor which promotes the inflammatory response, itself the cause of rheumatoid arthritis, Crohn’s disease,
psoriasis, and other conditions. However, due to its suppression of
TNF-alpha, itself part of the immune system, side effects have been
observed including: “lymphoma, infections, congestive heart failure, demyelinating disease, a lupus-like syndrome, induction of
auto-antibodies, injection site reactions, and systemic side effects”
(Journal of Dermatological Treatment, 2004, Vol. 15, No. 5: Pages
280-294).
After 15 days of trial, the jury found the plaintiff negligent for not taking reasonable measures to make
sure Delores’ doctors had a high index of suspicion for
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$2,000,000 VERDICT – PRODUCT LIABILITY – MANUFACTURING DEFECT – PLASTIC
USED IN TRANSVAGINAL MESH ALLEGEDLY UNSAFE FOR HUMAN IMPLANTATION –
PAIN, BLEEDING, MULTIPLE SURGERIES.
U.S. District Court - Southern District of West Virginia
This case involved a product liability case related
to a medical appliance called a transvaginal
mesh. The suit was resolved with a jury verdict for
the plaintiff.
In 2009, the plaintiff Donna C. underwent the implantation of an Avaulta Plus transvaginal mesh implant
manufactured by the defendant C.R. Bard. The device is meant to buttress organs collapsing into the
pelvic region. However, the plastic in the device later
began to fail, resulting in pain, bleeding and other
side effects suffered by the plaintiff. The device was
later removed surgically in a series of procedures. In
2012, the United States Food and Drug Administration
ordered defendant to pull the Avaulta implants off
the market, along with all other makers of the devices, in order to study organ damage and other
complications associated with the products.
The plaintiff filed suit in the United States District Court
for the Northern District of Georgia, naming as a defendant C.R. Bard, manufacturer of the transvaginal
mesh. The case was later consolidated in the United
States District Court for the Southern District of West Virginia for pretrial purposes. The plaintiff sought recovery on multiple theories of liability, including failure to
warn, strict liability for defective design and manufacturer and breach of implied warranty. The plaintiff
also sought punitive damages. The defendant denied the accusations, asserting that their product was
safe. At trial, the plaintiff asserted that the defendant
company ignored warnings made that the plastic
material used in the device’s manufacture carried a
warning that it should not be implanted in humans.
After two weeks of trial, the jury returned a finding for
the plaintiff, finding the defendant liable for the plaintiff’s injury through the defective design and failure to
warn respecting that defect. The jury awarded
$250,000 in compensatory damages. They further
found malice, fraud or wantonness, and awarded
punitive damages in the amount of $1.75 million.
REFERENCE
Donna and Dan Cisson vs. C.R. Bard, Inc. Case no.
2:11-cv-00195; Judge Joseph Goodwin, 08-15-13.
Attorney for plaintiff: Henry Garrard, III of
Blasingame, Burch, Garrard & Ashley in Athens, GA.
Attorney for defendant: Richard B. North, Jr. of
Nelson Mullins Riley & Scarborough LLP in Atlanta,
GA.
COMMENTARY
This verdict represents the result of the second trial. The previous
trial ended in mistrial after a witness referred to the product’s
withdrawal from the market, in violation of a previous ruling by
Judge Goodwin. As per Georgia law regarding product liability
damages, 75% of any punitive damages award must be paid to the
state of Georgia.
CONFIDENTIAL RECOVERY – PRODUCT LIABILITY – DEFECTIVE DESIGN OF
TRANSVAGINAL MESH – SECOND CASE REGARDING PRODUCT – SUBSTANTIAL
HEALTH COMPLICATIONS RESULTING FROM MEDICAL DEVICE FAILURE.
Kanawha County, West Virginia
This case involved a product liability case related
to a medical appliance called a transvaginal
mesh. The suit against the device’s manufacturer
was settled for a confidential amount pre-trial.
The plaintiff Wanda Q. underwent surgical implantation of the Bard Avaulta Solo Anterior Synthetic Support System at Wake Medical Center in Raleigh North
Carolina. The surgery was conducted by Dr. Elizabeth
Barbee. The device, used to treat pelvic prolapse,
later began to fail. The plaintiff experienced several
severe health complications, and underwent multiple
surgeries to remove the device.
for the Northern District of Georgia against C.R. Bard,
manufacturer of the medical device. The case was
later consolidated in the United States District Court
for the Southern District of West Virginia in the court of
Judge Joseph Goodwin, along with other similar
claims. The plaintiff sought recovery of damages on
theories of product liability, failure to warn, breach of
implied warranty, and negligence. Damages included past and future pain and suffering, permanent injury and disfigurement and punitive damages.
A claim was also entered in for her husband for his
loss of consortium. The defendant denied the accusation of negligence, maintaining that the product
was safe.
The matter was later settled for a confidential sum.
REFERENCE
Wanda L. and Greg T. Queen vs. C.R. Bard Inc. Case
no. 2:11-cv-00012, MDL-2187; Judge Joseph
Goodwin, 08-19-13.
Attorney for plaintiff: Henry Garrard, III of
Blasingame, Burch, Garrard & Ashley, P.C. in Athens,
GA. Attorney for defendant: Nelson, Mullins, Riley &
Scarborough in Atlanta, GA.
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8
COMMENTARY
This settlement came within a week following the loss of a $2 million lawsuit in the same jurisdiction by the defendant in another
bellwether Avaulta case. That case was Donna Gisson v. C.R. Bard,
Inc. The overarching financial implications to the medical device
manufacturing company are not yet known.
$1,125,000 RECOVERY – DOG BITE – DEFENDANT’S DOG PULLS INFANT PLAINTIFF
FROM HIS BICYCLE AND ATTACKS HIM – TRAUMATIC LACERATIONS – PUNCTURE
WOUNDS – SURGERY REQUIRED.
Lake County, Illinois
In this dog bite case, the plaintiff alleged that the
defendant was negligent in permitting his dog,
which had a violent history of previous biting, to
escape his yard and attack the plaintiff. The
young plaintiff was ripped from his bike by the
dog which then proceeded to bite the child
multiple times causing the boy to have to undergo
surgical repair of his wounds. The defendant
denied the allegations and disputed the damages
alleged by the plaintiff.
The parties agreed to resolve the plaintiff’s complaint
for the sum of $1,125,000 in a settlement that was
approved by the court. The settlement represented
insurance proceeds from primary and umbrella insurance policies.
REFERENCE
Plaintiff’s economist expert: David Gibson, M.B.A.
from Chicago, IL. Plaintiff’s neuropsychology expert:
Kathleen Nugent, Ph.D. from Wilmette, IL. Plaintiff’s
psychiatry expert: Peter Fink, M.D. from Skokie, IL.
On June 29, 2011 the 15-year-old male plaintiff, who
only weighed 101 pounds, was riding his bicycle
home from school with a group of friends. The defendant’s 120 pound Bullmastiff named Kong escaped
from a fenced-in yard and violently pulled the plaintiff
from his bicycle and onto the street. The dog then
continued to attack the child until he was rescued by
a neighbor who had to put a lit cigarette to the dog’s
nose in order to free the child.
Jordyn Bankston, a minor by this grandmother and legal guardian Sherry D. Belanger and Sherry D.
Belanger individually vs. Eddie Diaz. Case no. 12 L
555; Judge Diane E. Winter, 07-29-13.
The child was transported via ambulance to the hospital where he remained for approximately one week.
The child suffered laceration and puncture wounds to
his head, shoulders, arms, legs, thighs and buttocks.
The child suffered a five inch deep bite wound to his
right arm. He was required to undergo surgery as a
result of the dog attack for his injuries.
COMMENTARY
The plaintiff brought suit against the defendant alleging negligence and liability under the state’s dog bite
statute. The plaintiff alleged that the defendant had
a longstanding hole in the fence through which the
dog escaped and attacked the child. The plaintiff incurred medical specials of $150,076. The defendant
denied the allegations and disputed liability to the
plaintiff for the child’s injuries and damages.
Attorneys for plaintiff: Patrick A. Salvi and Jeffrey J.
Kroll of Salvi Schostok & Pritchard P.C. in Chicago, IL.
Attorney for defendant: Jon Yambert of Chilton
Yambert & Porter LLP in Chicago, IL.
This is reported to be the largest dog bite settlement in Illinois history. The previous record for a dog bite settlement was $835,000.
There was a long history of problems and complaints surrounding
the defendant’s dog. Evidence disclosed that the dog’s owner had
received four citations from the police department for the dog attack and the dog had previously bitten another individual before
this attack. There had been eight separate calls to 911 for various
animal complaints regarding this defendant.
The defendant’s dog was euthanized following this incident. As a
result of the attack, which lasted approximately ten minutes before
the dog could be removed from the child, the child was diagnosed
with post-traumatic stress disorder and the child now fears being
around dogs or being outdoors for fear of being attacked again by
a dog.
$250,000 VERDICT – CIVIL ASSAULT – WOMAN IS RAPED BY MALE CLIENT.
Orange County, California
In this matter, a woman sued after being
allegedly raped by one of her clients. The matter
was resolved by a jury after the defendant denied
the accusation.
On July 14, 2011, the plaintiff identified as Jane Doe
accompanied the defendant Atallah A., a business
client of hers, to a produce market he claimed he
was interested in purchasing. Thereafter, the parties
returned to their business office where the plaintiff alleged that she was was ambushed and sexually assaulted on her conference room table.
The plaintiff filed suit in the Superior Court of Orange
County, seeking civil damages from Atallah A. for sexual assault. The defendant denied the accusation,
as
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serting that the sex was consensual. The plaintiff
sought recovery of compensatory and emotional
damages for sexual battery, false imprisonment, assault, sexual harassment and intentional infliction of
emotional distress, as well as punitives.
The plaintiff asserted that defendant planned the sexual assault after first ensuring that the plaintiff would
be alone in the office. The defense argued that the
sexual battery between Atallah A. and the plaintiff
was consensual and that the sexual battery claim
was an attempt to gain leverage in an existing business dispute over unpaid invoices.
After deliberating for three days, and after a three
week trial, a jury awarded $251,850 in damages to
the plaintiff. No punitives were awarded.
9
REFERENCE
Jane Doe vs. Atallah Abdallah, et al. Case no. 302011-00513537; Judge Kirk H. Nakamura, 08-10-13.
Attorney for plaintiff: David Drexler of Law Offices of
David Drexler in CA. Attorney for defendant: Arthur
J. Travieso of Rallo Law Firm PC in Costa Mesa, CA.
COMMENTARY
According to plaintiff’s counsel, the Orange County District Attorney
declined to prosecute the sexual assault criminally, as the existing
business relationship between the two parties could make it more
difficult to get a conviction. Counsel states that the statute of limitations, however, is still open for criminal prosecution.
$12,000 RECOVERY – PREGNANCY DISCRIMINATION – SECURITY COMPANIES ARE
LIABLE FOR PREGNANCY AND DISABILITY DISCRIMINATION, AND RETALIATION.
U.S. District Court - District of Maryland
In this matter, a security services corporation was
sued by the United States Equal Employment
Opportunity Commission. The matter was
resolved via consent decree.
The complainant in this matter was a contract security officer for DTM Corporation, a Maryland-based security services provider. After Naima A. became
pregnant, she alleged that supervisors began discriminating against her in numerous ways, including
suspending her repeatedly, publicly casting doubt on
her pregnancy claim, and telling her to hide in a
restroom so contracting officials did not see that she
was pregnant. DTM’s “Corporation Maternity Policy” required the suspension of pregnant employees without
pay pending the receipt of a medical release. The
complainant asserted that she was forced to obtain
releases pursuant to its medical release policy, in
spite of already being cleared by her doctor. Finally,
DTM forced her to undergo medical examinations
that she alleged were not job-related.
She thereafter filed a complaint with the United States
Equal Employment Opportunity Commission, who investigated. After failing to reach a settlement through
their conciliation process, the EEOC filed suit in the
United States District Court for the District of Maryland.
The EEOC accused DTM Corporation of pregnancy
discrimination and retaliation in violation of the Title VII
of the Civil Rights Act of 1964 (Title VII), as amended
by the Pregnancy Discrimination Act of 1978 (PDA)
and unlawful medical inquiries, in violation of the
Americans with Disabilities Act (ADA). After DTM filed
for Chapter 7 bankruptcy dissolution, the EEOC
added Trinity and CSI as defendants, alleging that
they were liable for the discrimination and retaliation
as legal successor companies.
The matter was resolved pre-trial for $42,000, including $12,000 from CSI Corporation of DC. This came in
addition to $30,000 already paid by defendant Trinity
Protection Services to resolve its part of the lawsuit.
Both defendants also agreed to provide equitable relief including posting a notice respecting the settlement and the training of his managerial and
supervisory employees as part of the settlement.
REFERENCE
U.S. Equal Employment Opportunity Commission vs.
DTM Corporation, Trinity Protection Services, Inc. and
CSI Corporation of DC. Case no. 1:11-cv-02433;
Judge Kimberly J. Mueller, 06-06-13.
Attorneys for plaintiff: William R. Tamayo, Jonathan
T. Peck, Raymond T. Cheung of U.S. Equal
Opportunity Commission - San Francisco Office in
San Francisco, CA. Attorneys for defendant: Danielle
Ochs-Tillotson & Carolyn B. Hall of Ogletree,
Deakins, Nash, Smoak & Stewart, P.C. in San
Francisco, CA.
COMMENTARY
Although Trinity and CSI never employed Naima A., the EEOC was
able to have them held liable as successor companies, due to their
purchase of DTM’s assets, as well as common officers and employees with DTM (including the supervisor who had engaged in the alleged discrimination), having had notice of the allegations against
DTM prior to their purchase of their assets, and had substantial
continuity of DTM’s business operations.
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10
Verdicts by Category
MEDICAL MALPRACTICE
Nursing
DEFENDANT’S VERDICT
Medical Malpractice – Nursing – Nursing staff
allows pressure sore to develop and progress to
decubitus ulcer – Stage IV decubitus ulcer.
Tulsa County, Oklahoma
In this medical malpractice action, the plaintiff
maintained that the defendant nursing staff failed
to properly position the plaintiff while the plaintiff
was a patient at the defendant hospital. The
plaintiff maintained that the defendant’s
negligence caused a pressure sore to develop
which required several years of wound care. The
defendants denied all allegations of negligence.
The male plaintiff was a patient of the defendant hospital from December 19, 2002 until January 7, 2003.
During that time, the plaintiff underwent open heart
surgery and was in critical condition and according
to medical records, near death. According to the
plaintiff’s complaint, during his hospitalization he developed a pressure sore that progressed to a stage IV
decubitus ulcer that required extensive wound care
treatment for several years.
The plaintiff maintained that the defendants were
negligent in failing to properly rotate and move the
plaintiff’s body in order to prevent pressure sores from
developing, failing to properly care for and treat the
decedent and providing substandard care that allowed the development of a pressure sore. The defendants denied all negligence and maintained that
the pressure sore was unavoidable due to a deep tissue injury, the plaintiff’s overall health and his life
threatening condition.
The jury found no negligence on the part of the
defendants.
REFERENCE
Arnold Stoner vs. St. Francis Hospital. Case no. CJ2008-1608; Judge Carlos Chappelle, 06-06-13.
Attorney for plaintiff: Michael Barkley of The Barkley
Firm in Tulsa, OK. Attorney for defendant: Richard A.
Shallcross of Richard A. Shallcross & Associates, PLLC
in Tulsa, OK.
Nursing Home Negligence
$2,000,000 VERDICT
Medical Malpractice – Nursing Home Malpractice
– Decedent allegedly suffers profound neglect
resulting in pressure sores and malnutrition –
Wrongful death of 67-year-old female.
Philadelphia County, Pennsylvania
In this nursing home liability action, the plaintiff
maintained that the decedent suffered from
neglect while she was a patient at the defendant
nursing home causing her to develop severe
pressure sores, dehydration and malnutrition
which caused her death. The defendant nursing
facility argued that the care the decedent received
was proper and in accordance with all medical
standards.
This was a civil liability case in which the plaintiff maintained that the decedent suffered profound neglect
at the Willowcrest Nursing Home, located on Old York
Road in Philadelphia, Pennsylvania, which resulted in
great physical pain, mental injuries and related
death. The injuries sustained by the plaintiff’s decedent made the basis of this lawsuit were proximately
caused by the negligence and negligence per se of
the defendant nursing home, its agents, officers, servants and/or employees, including but not limited to
the defendant doctor as Nursing Home Administrator
and Medical Director, the defendant nurse as the Director of Nursing, and also including, but not limited
to licensed practical nurses, registered nurses, and
certified nurse assistants employed from August 8,
2005 through the time of the decedent’s death on
October 18, 2007.
The plaintiff contended that the defendant was negligent in permitting neglect of the plaintiff, failure to
hire a sufficient number of trained and competent
staff, failure to create an adequate pressure sore risk
assessment, failure to modify the plan of care when
the plan of care was inadequate to the needs of the
patient and violating Pennsylvania Statutes, and
Pennsylvania Administrative Regulations 28 Pa.§ 21
VERDICTS BY CATEGORY
11
1.5(f), § 211.1O(d), § 211.11 (a), § 211.12(a). Each
and all of the aforementioned acts, constituted negligence and were a direct and proximate cause of
the injuries and damages, including but not limited to
Stage IV pressure sores which contributed to her
death, physical pain and mental anguish, and extensive expenses for medical and hospital care and
treatment. The defendants all denied negligence
and maintained that the decedent received proper
care in accordance with industry standards.
REFERENCE
Estate of Elise Dubose by Robert Dubose vs.
Willowcrest Nursing Home and Albert Einstein
Healthcare Network, Mark Quinlan M.D. and Donna
Brown R.N.C. Case no. 090801603; Judge Esther
Sylvester, 03-13-13.
Attorney for plaintiff: Rhonda Hill Wilson in
Philadelphia, PA. Attorney for defendant: J. Michael
Doyle of Post & Schell in Philadelphia, PA.
The jury found the defendant head of nursing to be
15% negligent and the nursing home to be 85% negligent. The jury awarded the estate administrator
$1,125,000 in compensatory damages and
$875,000 in punitive damages.
Ob/Gyn
$33,500,000 VERDICT
Medical Malpractice – Ob/Gyn – Child suffers
brain damage due to delayed birth – Spastic
quadriplegia.
without oxygen to his brain, the plaintiff sustained severe brain damage and spastic quadriplegia, a form
of cerebral palsy.
Shelby County, Tennessee
The plaintiff filed suit in the 13th Judicial District Court
for Shelby County, naming as defendant her obstetrician Gary L. and his employer, UT Medical Group. The
plaintiff sought past and future medical costs, as well
as other damages. The defendant denied breaching
the standard of care and made no offers for resolution. At trial, the plaintiff showed that the defendant
Dr. L. approved the resident’s plan without reviewing
it, and attended to it as low priority. The plaintiff asserted that if the birth would have been accomplished even 15 to 20 minutes earlier, the child’s
injuries would have been prevented.
In this matter, a mother, on behalf of her child,
sued an obstetrician and his employer for brain
damage resulting from failure to properly
manage and timely deliver her son. The matter
was resolved via jury verdict after the defendant
denied liability.
At 10:45 a.m. on April 28, 2005, the infant plaintiff’s
mother Nicole C. was sent by wheelchair to a Memphis Hospital for delivery. She had just been next door
at her regular pre-natal visit at 39 weeks. At that time
it was learned that the unborn child had a non-reassuring fetal heart tracing (i.e. little to no variability and
no accelerations) and the providers could not stimulate any movement despite numerous attempts using
acoustic stimulation. No injury had yet occurred by
the time they arrived at the defendant Hospital, but
the plaintiff was in need of an immediate delivery.
The mother’s attending physician, Dr. L., approved a
second year resident’s proposed plan respecting her
treatment, but did not see the patient. A 3:30 p.m., a
deadline was set for the child’s delivery, which the
plaintiff later asserted was itself a violation of the standard of care. The deadline was further missed. At
around 4:30 p.m., the plaintiff’s heart crashed, and
the second year resident performed an emergency
cesarean section. As a result of the 15 to 20 minutes
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The Memphis jury of ten women and two men rendered a unanimous finding for the plaintiff. The defendants Gary L. and UT Medical Group, Inc. were
found in breach of the standard of care, and ordered to pay $33.5 million in damages.
REFERENCE
Jordan Long vs. Shelby County Healthcare Corporation. Case no. 003764-07; Judge Robert Childers, 0717-13.
Attorney for plaintiff: Steve Offutt of Janet, Jenner &
Suggs, LLC in Baltimore, MD. Attorneys for
defendant: Donna L. Boyce, Tricia T. Olson, Cannon
F. Allen of Adams and Reese LLP in Memphis, TN.
12
Medical Malpractice – Ob/Gyn – Mother alleges
that pregnancy is terminated unnecessarily.
Los Angeles County, California
In this matter, a woman sued after the
termination of her pregnancy in a California
hospital. The matter was resolved via jury after
the defendant denied the accusation of
negligence.
On May 29, 2010, the plaintiff Patricia R. presented at
the Emergency Room of Presbyterian Intercommunity
Hospital in Whittier. The plaintiff complained of lower
abdominal pain. She was given a pregnancy test,
which returned as positive. Her Beta hormone levels
were taken. An ultrasound revealed the presence of
a 1.5 cm cyst on her right ovary. A second ultrasound
was performed on June 4th, which revealed a 5mm
fluid collection in her uterus. Three days later, the
plaintiff presented at the offices of Bright Health Physicians to have her hormone levels checked again.
The defendant, Dr. John S., an ob/gyn, performed
another ultrasound. The defendant concluded that
the uterus was empty, and that the plaintiff had a fallopian tube ectopic pregnancy. The defendant asserted and later performed a termination of
pregnancy through a methotrexate injection. When
she returned to Bright Health Physicians on June 14th,
Dr. Joy L. performed another ultrasound, which again
showed an empty uterus. However, hormone levels
indicated that the pregnancy was advancing. Dr. S.
informed the plaintiff that she would still need a D&C
(dilation and cutterage) to remove what they still
asserted was an ectopic pregnancy.
On June 17th, the plaintiff presented at the E.R. of
Hoag Community Hospital. An ultrasound revealed a
12 mm sac in her uterus, showing an embryo without
embryonic cardiac activity. A D&C was performed by
Dr. Morris A., to remove the remains of the fetus.
The plaintiff filed suit in the Superior Court of California’s Los Angeles County division, accusing the defendants John S. and other staff of Bright Health
Physicians of destroying a viable fetus with the
methotrexate. The defendants denied the accusation, asserting that the plaintiff’s pregnancy had not
been viable in any event. The plaintiff gave a pre-trial
demand of $150,000. The defendant offered
$29,999.99.
The plaintiff waived her claim to economic damages
during trial, but continued to seek recovery of noneconomic damages for past and future pain and
suffering. The plaintiff asserted that she continues to
suffer emotional distress due to the loss of her child,
including crying spells, guilt and mistrust of doctors
and the medical profession.
After 15 days of trial, the jury deliberated for four hours
before returning a nine to three verdict for the defendant, finding no negligence on the party of John S.
The plaintiff’s counsel has since moved to set aside
the verdict, arguing that it was not supported by the
evidence.
REFERENCE
Patricia Rico vs. John H. Sanchez M.D., Bright Health
Physicians and Joy A. Leong M.D.; Judge Patrick
Madden, 06-28-13.
Attorneys for plaintiff: Barry B. Novack & Lisa Wiesel
of Law Offices of Barry Novack in Beverly Hills, CA.
Attorney for defendant: Richard J. Ryan of Ryan,
Datomi & Mosely LLP in Glendale, CA.
Physical Therapy
$300,000 RECOVERY
Medical Malpractice – Physical Therapy – Licensed
physical therapy assistant sexually assaults
plaintiff patient – Acquittal in criminal trial –
Plaintiff also contends improper supervision by
employer – Emotional injury.
Bergen County, New Jersey
This case involved a plaintiff in her mid 40s, who
had visited the defendant physical therapy facility
because of severe pain associated with lumbar
herniations. The plaintiff contended that the
physical therapy assistant improperly advised her
that insertion of his finger into her vagina was an
appropriate way to strengthen the pelvic muscles
and provide pain improvement. This type of
touching occurred on three occasions. The plaintiff
maintained that after the second incident, she told
the assistant that she was uncomfortable with the
therapy and when he nonetheless did it a third
time, she reported him. The assistant was
criminally charged and acquitted, with the
criminal court holding that there was insufficient
proof of sexual gratification by the assistant as
required by the criminal statute.
The plaintiff maintained that based upon this finding,
the carrier should not be permitted to disclaim upon
an intentional tort.
The plaintiff also contended that a licensed physical
therapist must be on the premises when an assistant
administers therapy and that there was an absence
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13
of supervision, rendering the physical therapist and his
employer liable, irrespective of the question of coverage for the acts of the assistant.
The defendants therapist and facility would have
maintained that the plaintiff was comparatively negligent in failing to report the improper touching after
the first incident and continuing the care.
The plaintiff contended that she suffered an emotional reaction of anxiety and depression and which
has required psychotherapy. The plaintiff’s psychiatrist
would have offered a guarded prognosis.
The case settled prior to trial for $300,000.
REFERENCE
Plaintiff physical therapy patient vs. Defendants licensed physical therapy assistant, physical therapist
and facility.
Attorney for plaintiff: Barry D. Epstein of Epstein Law
Firm in Rochelle Park, NJ.
Primary Care
$1,000,000 CONFIDENTIAL RECOVERY
Medical Malpractice – Primary Care – Failure to
properly monitor cancer patient – Wrongful death
of 72-year-old with history of Hepatitis B.
Withheld County, Massachusetts
In this medical malpractice matter, the plaintiff
alleged that the defendant primary care physician
was negligent in failing to closely monitor the
decedent, who was of Asian descent and had a
history of Hepatitis B, which is known to result in
a high likelihood of liver cancer. The defendant
disputed that any close monitoring would have
resulted in a different outcome and disputed that
there was any deviation from acceptable
standards of care.
The 72-year-old male decedent suffered from
chronic Hepatitis B, which is known to place the patient at a higher risk for developing liver cancer the
plaintiff alleged. The plaintiff contended that despite
a history of positive hepatitis B surface antigen, the
physician failed to conduct any follow-up testing and
failed to monitor the patient closely since he was at a
high risk of developing liver cancer. The plaintiff contended that chronic hepatitis B is more prevalent in
Asian males and is defined as the presence of the
surface antigen in the blood for a period in excess of
six months.
monitor the patient for any development of liver cancer which is highly likely in patients suffering from a
chronic hepatitis B. The plaintiff’s decedent died from
liver cancer.
The plaintiff brought suit against the defendant primary care physician alleging that the doctor was
negligent in failing to advise the decedent that he
suffered from chronic HBV and that he was at a risk
for developing liver cancer. The plaintiff contended
that the defendant was negligent in failing to screen
the patient for cancer at regular intervals so early detection could have occurred. The defendant denied
the allegations of negligence. The defendant maintained that the patient’s cancer was not curable and
no regular early monitoring or diagnosis would have
prevented his death.
The parties agreed to resolve the plaintiff’s claim for
the sum of $1,000,000 in a confidential settlement
between the parties prior to a trial in this matter.
REFERENCE
Plaintiff Estate of John Doe vs. Defendant Primary
Care Physician. 10-01-12.
Attorneys for plaintiff: Andrew C. Meyer and William
J. Thompson of Lubin & Meyer in Boston, MA.
The plaintiff’s decedent suffered from this condition,
yet the plaintiff alleged that the physician failed to inform the decedent of this fact and failed to closely
Radiology
$750,000 RECOVERY
Medical Malpractice – Radiology – Delay in
diagnosis leads to metastatic Stage IV breast
cancer – Loss of life expectancy.
In this action for medical malpractice, the plaintiff
alleged that the defendant radiologists’
negligence lead to a late diagnosis of breast
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cancer; allowing the cancer to metastasize to the
bone. The defense denied all allegations of
negligence and argued that the plaintiff’s
treatment was within accepted standards of care.
At an annual visit with her obstetrician-gynecologist in
January 2010, a lesion was discovered in the plaintiff’s left breast. As a result, the plaintiff underwent a
diagnostic mammogram and ultrasound which re-
14
vealed a probable fibroadenoma. Six months later,
the plaintiff followed up with the imaging center, as
recommended, and underwent a second ultrasound.
That test reportedly revealed no change in the lesion
that was initially discovered the previous January. After another six months had passed, the plaintiff returned to the imaging center, once again, and
underwent a screening mammogram. At that time, it
was concluded that everything was within normal
limits.
Seven months later, in July 2011, the plaintiff returned
to her obstetrician-gynecologist for her annual exam
only to find that the lesion was thought to have grown
in size. The plaintiff then underwent a biopsy, which
resulted in a diagnosis of infiltrating ductal carcinoma. Further workup revealed the presence of bony
metastasis in the acetabulum. Thus, the plaintiff underwent treatment for the past two years and is currently considered stable with Stage IV breast cancer;
metastatic to the bone. Unfortunately, her prognosis is
poor.
The plaintiff sued each of the radiologists responsible
for reading each of her diagnostic tests, beginning
with the January 2010 tests and moving forward.
Among other allegations, the plaintiff asserted that
had the second ultrasound been read correctly by
the second radiologist, she would have known that
the lesion had grown and the borders had become
irregular and could have sought immediate treatment at that time. This would have led to a diagnosis
of breast cancer one year earlier, before it had
metastasized. The defendants denied all allegations
of negligence and argued that, at all times the plaintiff’s treatment feel within accepted standards of
care.
Ultimately, this matter settled with a $750,000 recovery for the plaintiff. This recovery also resolved any
later wrongful death case.
REFERENCE
Doe vs. Roe. Case no. confidential, 07-18-13.
Attorney for plaintiff: Daniel M. Hodes of Hodes
Milman Liebeck Mosier, LLP in Irvine, CA.
Surgery
Medical Malpractice – Surgery – Transection of
facial nerve during removal of benign growth –
Facial droop in infant plaintiff.
In this negligence matter, the plaintiff alleged that
the defendant surgeon was negligent in injuring
the plaintiff’s facial nerve during the removal of a
growth, which resulted in the plaintiff suffering a
permanent facial droop. The defendant denied
the allegations of negligence and maintained that
the nerve disintegrated as a result of traction put
in place during the surgery which is a known risk
of the procedure.
The infant plaintiff was born with a fullness of the side
of her neck. The plaintiff and her parents consulted
with the defendant surgeon who determined that the
mass was a benign growth that needed to be removed. The plaintiff underwent surgery with the defendant surgeon. Immediately following the surgery
the parents noted that the plaintiff had a facial droop
on her right side. The defendant advised the parents
that this was a temporary condition caused by bruising and swelling in the facial area and would resolve
itself. The plaintiff contended that the droop did not
resolve itself as the defendant had repeated assured
the parents during the follow-up visits. In fact, the
plaintiff was also unable to move the corner of her
mouth. A nerve study determined that the plaintiff’s
facial nerve was not functional. The infant underwent
a second surgery during which it was determined that
the defendant had transected the plaintiff’s facial
nerve during the first surgery. The plaintiff’s facial
nerve was unable to be reconnected during the second surgery. The plaintiff is left with a permanent
facial droop and inability to move the corner of her
mouth.
The plaintiff brought suit against the defendant surgeon alleging that the defendant was negligent in
failing to protect the facial nerve during the surgery.
The plaintiff alleged that operative notes by the defendant failed to indicate that the defendant identified and/or protected the facial nerve during the
surgery to remove the growth. The plaintiff contended
that the defendant was negligent in transecting the
facial nerve and causing the child permanent
damage.
The defendant denied the allegations of negligence.
The defendant contended that the facial nerve had
not been cut; rather it disintegrated due to traction
placed during the original surgery, which was a
known complication of that type of surgery and a risk
to which the plaintiff through her parents gave
informed consent.
The parties agreed to resolve the plaintiff’s claims for
the sum of $1,500,000 in a settlement that occurred
one week prior to the scheduled trial in this matter.
REFERENCE
Plaintiff Infant Jane Doe vs. Defendant Surgeon Roe.
10-01-12.
Attorneys for plaintiff: Andrew C. Meyer and Robert
M. Higgins of Lubin & Meyer in Boston, MA.
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15
PRODUCT LIABILITY
Defective Design
Product Liability – Defective design of diaper
manufacturing machine – Absence of barrier
guard over exposed rotating drive shaft – Absence
of interlock – Plaintiff maintenance mechanic’s
right arm is drawn in while trying to make
adjustments – Rotator cuff tear.
Cumberland County, New Jersey
The plaintiff, in his late 50s, a maintenance
mechanic for a company that manufactured child
and adult diapers, as well as under pad products
for hospital beds, contended that the diaper
machine, manufactured by the defendant in 1966,
was defectively designed because there were no
guards over the exposed rotating drive shaft. The
plaintiff also alleged the fence door should have
had an interlock so that power to the machine
would be shut off whenever the door was opened.
The plaintiff’s job was to ensure that the six factory
machines were running properly. The machines were
run 24/7 and diapers were being manufactured
around-the-clock by three different shifts. On the day
of the accident, one of the diaper machines developed a problem with the folding section of the machine. The machine was approximately 50 feet long.
The problem with the folding mechanism resulted in
the diapers not being folded correctly.
The subject machine was producing approximately
60 diapers a minute. The machine had an “operator”
side, where the machine operators would be situated
to run the paper product through the machine, and
a “drive” side, where all the drive shafts, gears,
chains, pulleys, sprockets and other moving parts
were located. The moving parts on the drive side of
the machine were guarded with a seven foot tall
metal fence/cage that ran the entire length along
the rear of the 50 foot machine. The fence had a series of seven foot doors that could be opened if a
worker needed to have access to the drive shafts or
other moving parts. Although the fence doors had
latches, they were not locked and did not have interlocks, which would have shut off power to the machine whenever any of the doors were opened.
When the plaintiff realized that the folding portion of
the machine was malfunctioning, he knew he
needed to readjust one of the folding discs and
brackets. This had been a recurring problem and
plaintiff had made this adjustment on this machine
about once per day on his shift. According to plaintiff, the machine’s vibration would loosen the bolts
that held the folding discs and brackets in place. On
the day of the accident, the plaintiff went to the drive
side of the machine, opened the fence door, and
entered the area of the machine where the folding
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mechanism was located. The plaintiff, however, did
not turn the machine off before entering the fencedin area of the machine.
The plaintiff testified that the machine had to be running when his adjustments were being made so he
could see when the adjustments were done correctly.
With the machine still running, and diaper products
still being produced, the plaintiff began adjusting the
bolts and brackets to the folding mechanism. As he
tightened a bolt, his right arm got caught in a rotating drive shaft that ran horizontally, about three feet
off the ground, along the machine. The steel drive
shaft, which was one and a-half inches in diameter,
had no guards on it. The exposed rotating drive shaft
pulled plaintiff’s arm and shirt into the machine and
he struggled to free his arm.
The plaintiff’s expert engineer opined that a simple
sheet metal guard should have been manufactured
and installed over the drive shaft to prevent a worker’s
inadvertent contact with the drive shaft. He also
opined that the fence guard should have had interlocks on all the doors so that once any door was
opened, the machine’s power would shut off, and
the plaintiff maintained that adjustments could have
been made by the plaintiff with the power shut down.
The plaintiff’s expert testified that these safety features
were economically feasible in 1966 and would not
have impaired the function of the machine.
The defendant argued that its machine was not defectively designed in 1966, that the fence guard that
ran the entire length of the drive side of the machine
was an adequate guard, and that plaintiff was negligent for not shutting off the machine’s power before
working around the rotating drive shaft. The defendant also argued that the plaintiff’s employer was a
proximate cause of the accident because of the inadequate safety policies in place at the time of the
accident. Although the defendant had retained a liability expert, defense counsel did not call him at trial.
Defense counsel argued that plaintiff should have
shut the power off before working on the drive side of
the machine around all the moving parts. He also
argued that the fence served as an adequate guard.
The plaintiff moved in limine to bar comparative negligence under the Suter line of cases and this motion
was denied. The defendant argued that plaintiff
knowingly and voluntarily encountered a dangerous
condition. The defendant’s lead design engineer testified in discovery that there was only about 40% of
the original 1966 machine that was in place at the
time of his inspection in 2010 and the defendant
contended that that the machine had been substantially modified by unknown prior owners between
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1966 and the accident date in 2008. Most of the
component parts and electrical systems were completely replaced. However, the subject drive shaft appeared to be the same as seen in the 1966 and the
plaintiff maintained that the machine was clearly defectively designed. The defendant’s expert did not
testify at trial.
The plaintiff’s orthopedic expert opined that plaintiff’s
right shoulder MRI revealed a complete tear of the
rotator cuff, which was related to the machine accident. The plaintiff’s expert recommended shoulder
surgery, but the plaintiff never had the surgery because he did not want to miss more time from work.
The plaintiff’s expert opined that the rotator cuff tear
would never heal on its own. The plaintiff also showed
the jury two scars on his arm and shoulder that were
from the accident. The defendant did not use any
medical experts at trial.
The plaintiff did not assert a wage loss claim. He was
able to return to work after the accident.
The jury found that the machine was not defectively
designed and did not address the issue of whether
the plaintiff voluntarily encountered a known risk.
REFERENCE
Plaintiff’s engineering expert: Gary Sheesley, P.E.
from Pottstown, PA. Plaintiff’s orthopedic expert:
Thomas Dwyer, M.D. from Vineland, NJ. Defendant’s
engineering expert (not used at trial): Clyde Richard,
P.E. from Annapolis, MD.
Fortune vs. Curt G. Joa, Inc. Docket no. CUM-L-007210; Judge Robert Malestein, 04-25-13.
Attorney for defendant: Steve Rudolph of Rudolph &
Kayal in Manasquan, NJ.
Manufacturing Defect
Product Liability – Manufacturing Defect – Spinal
fusion implant device is inserted into the plaintiff
successfully but screws fail and fracture
prematurely – Fractured screws embed into the
plaintiff’s cervical spine.
to remove the AcuFix system, but it was determined
that the two broken screws were too embedded to
be safely removed. Although the pain did decrease
after the second surgery, the plaintiff underwent a
third surgery in 2007 to try again to relieve the pain.
Buffalo County, New York
Unfortunately, that surgery did not fully alleviate the
plaintiff’s pain either. The plaintiff continued to experience a moderate amount of permanent cervical
pain. The plaintiff maintained that the defendant was
strictly liable for its design and manufacture of an allegedly defective medical device, the SC-AcuFix Anterior Cervical Plate System, which was surgically
implanted in her spine. The plaintiff further claimed
that Spinal Concepts negligently designed the AcuFix
System, failed to provide adequate warnings, and
breached implied warranties. The defendant denied
all allegations of negligence and maintained that the
plaintiff’s fusion did not heal properly which put excessive pressured on the AcuFix system, specifically the
bottom two screws, causing them to fracture
prematurely.
In this product liability action, the plaintiff
maintained that she underwent a successful
cervical fusion surgery using the defendant’s
cervical implant when the screws on the implant
failed prematurely causing the plaintiff continued
cervical pain. The defendants denied that their
production was defective in any way.
On December 18, 2000, the female plaintiff was in
the course of her employment as a home healthcare
worker when she slipped and fell as she was getting
out of her car. She was diagnosed with a cervical
disc herniation at C5-6 and severe injury at C6-4. After unsuccessful conservative treatment, it was determined that the plaintiff would undergo fusion surgery
using the AcuFix system medical device manufactured by the defendant. During the surgery performed
on May 3, 2002, portions of the plaintiff’s cervical
spine were removed and the AcuFix system was implanted and held together with four screws.
The procedure was considered a success and the
plaintiff’s cervical pain was alleviated. However, by
August of 2002, the plaintiff began to experience a
new severe cervical pain. The plaintiff was not able to
get an appointment until December of 2002, and
when she did, X-rays revealed that the two bottom
screws on the AcuFix system broke causing the plaintiff’s extreme pain. A second surgery was performed
The jury found that the plaintiff did not prove by a preponderance of evidence that there was a manufacturing defect in the defendant’s product.
REFERENCE
Betty and Richard Steinman vs. Spinal Concepts. Index no. 05-cv-00774; Judge William M. Skretny, 0417-13.
Attorney for plaintiff: Ryan K. Cummings of Hodgson
Russ, LLP in Buffalo, NY. Attorney for defendant: Paul
J. Suozzi of Hurwitz & Fine, P.C. in Buffalo, NY.
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17
MOTOR VEHICLE NEGLIGENCE
Auto/Bicycle Collision
$750,000 RECOVERY
Motor Vehicle Negligence – Auto/Bicycle Collision
– College student is struck by van – Lacerations of
face and neck.
Athens-Clarke County, Georgia
In this matter, a bicyclist was struck by a van. The
matter was resolved via settlement.
In October 2012, the plaintiff Xaunna K., a 20-yearold pre-med student at the University of Georgia, collided with a 1995 Ford Club Wagon owned by Miracle House Church International in Athens, Georgia. As
Xaunna was riding her bike down the hill, Lillian G., a
deacon from the church, pulled out in front of her on
her left side. Despite her efforts to avoid an accident
by breaking, the plaintiff struck the van, according to
court documents.
She sustained injuries when her head went through
the passenger side window, breaking the glass and
severely cutting her face and neck. She was treated
at Athens Regional Hospital, receiving emergency
care after losing a significant amount of blood at the
scene. According to the plaintiff and court documents, medical bills resulting from the accident
totaled $31,000.
At mediation, the plaintiff made a demand for the $1
million policy limits. The defendant’s final offer in mediation was $250,000. That offer was refused, believing that a jury would be willing to award between
$500,000 and the full policy limit. Thereafter, the
plaintiff filed suit in the Superior Court of Athens-Clarke
County, Georgia, naming as defendants the deacon
and Miracle House Church. The plaintiff sought recovery of past and future medical expenses, as well as
non-economic recovery. The defendants denied
liability.
The matter was thereafter settled for $750,000.
REFERENCE
Xaunna Jade Krehn vs. Grant and Miracle House
Church. Case no. SU13CV0381-SW; Judge mediator
Tom Tobin, 06-11-13.
Attorney for plaintiff: Hugh Michael Ruppersburg of
The Simon Law Firm in Atlanta, GA. Attorney for
defendant: Tom Cole of Whelchel Dunlap in
Gainesville, GA.
Auto/Moped Collision
Motor Vehicle Negligence – Auto/Moped Collision
– Moped passenger plaintiff suffers severe leg
injuries when car strikes moped – Scarring and
deformity.
In this motor vehicle negligence matter, the
plaintiff was a passenger on a moped at the time
of the collision. The plaintiff’s moped was struck
by the defendant’s motor vehicle. As a result of
the collision, the plaintiff suffered severe injuries
to her leg. She is left with scarring and deformity
of her leg as a result of the incident. The
defendant denied the allegations and disputed
the nature and extent of the plaintiff’s injuries and
damages.
The 61-year-old female plaintiff was a passenger on
a moped on the date of the incident. While riding on
the moped, the defendant’s vehicle struck the right
side of the moped. As a result of the collision, the
plaintiff sustained severe injuries to her leg which required her to be airlifted to a Boston hospital. She underwent multiple surgeries on her leg in order to save
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the leg. The plaintiff’s leg was saved; however, she
was left with significant scarring and deformity of the
leg as a result of the incident.
The plaintiff brought suit against the defendant driver
alleging negligence in the operation of the driver’s
vehicle. The plaintiff contended that the driver’s negligence was the cause of her injuries and damages.
The defendant denied the allegations and disputed
liability. The driver also disputed the nature and extent
of the plaintiff’s injuries and damages, citing the
plaintiff’s recovery which was better than expected.
The parties agreed to a confidential settlement of
$1,500,000 to resolve the plaintiff’s claims. The settlement reflects the available insurance.
REFERENCE
Plaintiff Passenger Doe vs. Defendant Driver Roe. 0104-13.
Attorney for plaintiff: Leonard L. Spada of Spada &
Zullo in Chelsea, MA.
18
Auto/Pedestrian Collision
$950,000 TOTAL RECOVERY
Motor Vehicle Negligence – Auto/Pedestrian
Collision – Mother and daughter plaintiff
pedestrians are struck after initial collision
between drivers – Mother suffers multiple skull,
pelvic, rib, and hip fractures – Daughter suffers
blow-out orbital fracture and vestibular
dysfunction.
Kings County, New York
The plaintiff pedestrians, a 55-year-old mother
and her 16-year old daughter, contended that as
they were crossing in the crosswalk with the green
light, the initial defendant negligently made a left
turn into the path of the co-defendant, whom the
plaintiffs maintained failed to make adequate
observations. The plaintiff’s maintained that as a
result of the initial collision, the left turning
defendant’s vehicle spun around and struck them.
The co-defendant, who was traveling straight,
maintained that the negligence of the left turning
defendant was the sole cause of the collision.
The plaintiff mother contended that she sustained
skull fractures to the left temporal bone, a hemorrhagic condition, a right subdural hematoma and a
subarachnoid hemorrhage. This plaintiff did not suffer
significant and permanent cognitive deficits. She also
maintained that she suffered right-sided hearing loss,
a sacral fracture, pelvic and hip fractures, tibial fractures and multiple rib fractures. This plaintiff maintained that she will permanently suffer extensive pain
from the fractures.
She also contended that she suffered a concussion
and post-concussion syndrome, as well as post-traumatic stress disorder that will cause permanent symptoms. The daughter maintained that she suffered a
blow-out fracture to the right orbital floor and a head
trauma that caused permanent balance difficulties.
The plaintiffs made no income claims.
The case settlerd prior to trial for $950,000, including
$700,000 from the left turning defendant and
$250,000 from the co-defendant. $250,000 was allocated for the infant plaintiff’s injuries.
REFERENCE
Kausar vs. Berkowitz, et al. Index no. 21521/10; Judge
Mark Partnow, 04-13.
Attorney for defendant contributing $250,000:
Francis J. Scahill of Picciano & Scahill in Westbury,
NY.
Auto/Horse Collision
Motor Vehicle Negligence – Auto/Horse Collision
– Defendant strikes the plaintiff and his horse as
they are riding on the side of the road –
Unspecified injuries – Death of horse.
In this negligence matter, the plaintiff maintained
that he was injured when he was riding a horse
on the side of the road and was struck by the
defendant. The defendant denied all allegation of
negligence and argued that it was the negligence
of the plaintiff that caused the collision.
On March, 9, 2010, the male plaintiff was riding his
horse along the north side of the roadway, westbound on East 31st Street, approaching South 177th
Street in Tulsa, Oklahoma. At the same time, the defendant was also traveling westbound on East 31st
Street when suddenly and without warning, the plaintiff and his horse were struck by the defendant. The
plaintiff maintained that the defendant was negligent
in traveling at an excessive rate of speed, failing to
keep a proper and adequate lookout and failing to
have her vehicle under proper and adequate
control.
The plaintiff claimed to have suffered serious unspecified injuries with past medicals totaling close to
$34,000. In addition, the plaintiff claimed that the accident caused fatal injuries to his horse. The defendant argued that the accident was caused by the
negligence of the plaintiff who was riding his horse in
the dark on the side of the road. The defendant argued that it was an unavoidable accident.
The jury found the plaintiff to be 80% negligent and
the defendant 20% negligent, barring recovery.
REFERENCE
Eduardo Sanchez vs. Kristin Newton. Case no. CJ2011-04548; Judge Daman Cantrell, 06-13-13.
Attorney for plaintiff: Donald E. Smolen of Smolen,
Smolen & Roytman in Tulsa, OK. Attorney for
defendant: Kurt Hoffman of Schroeder & Associates
in Tulsa, OK.
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19
Left Turn Collision
$300,000 VERDICT
Motor Vehicle Negligence – Left Turn Collision –
Plaintiff and defendant traveling in opposite
directions when the defendant makes a left turn
into the plaintiff’s driver’s side door – Lumbar disc
injury – Subsequent accident exacerbates lumbar
injury, necessitating the need for surgery.
Allegheny County, Pennsylvania
In this vehicle negligence action, the plaintiff
maintained that he suffered a lumbar injury when
his vehicle was struck by the defendant as the
defendant made a negligent left hand turn. The
plaintiff maintained that he was then involved in
a subsequent accident that exacerbated his
lumbar injury requiring the plaintiff to undergo
several surgeries and leaving him permanently
disabled. The defendant maintained that the
plaintiff was not seriously injured in the first
accident and that it was the second accident that
caused the plaintiff’s injuries.
On October 18, 2001, the 49-year-old male plaintiff
was operating his pickup truck in the course and
scope of his employment traveling in a westerly direction on State Route 30 in Pennsylvania. At the
same time, the defendant was traveling in the opposite direction on Route 30 when she suddenly and
without warning made a left hand turn into the driver’s
side of the plaintiff’s vehicle. The plaintiff suffered from
a lumbar disc injury and was out of work for a few
weeks.
In March of 2002, he was involved in a rear end injury
that greatly exacerbated his lumbar spine injuries. He
then required two surgeries to attempt to treat his
lumbar injuries, but has been left with constant low
back pain, limited motion and headaches. The plaintiff maintained that the defendant was negligent in
failing to keep a proper lookout, operating her vehicle at an excessive rate of speed, failing to keep her
vehicle under proper and adequate control, operating her vehicle carelessly and recklessly and failing to
anticipate and account for traffic conditions. The defendant driver denied all liability and injury and argued that the plaintiff’s injuries were caused by a
subsequent accident that the plaintiff was involved in.
The jury found in favor of the plaintiff and awarded
the plaintiff 250,000 and his wife 50,000. The verdict
was then molded by the court for an award of 50,000
per an agreement of the parties.
REFERENCE
John Englert and Renee Englert vs. Tiffany Zak. Case
no. GD-03-018399; Judge Terrence O’Brien, 04-0113.
Attorney for plaintiff: Samuel Pasquarelli of Sherrard,
German & Kelly, P.C. in Pittsburgh, PA. Attorney for
defendant: Donna Flaherty of Law Ofcs Twanda
Turner-Hawkins in Pittsburgh, PA.
Rear End Collision
$1,675,000 RECOVERY
Motor Vehicle Negligence – Rear End Collision –
55-year-old Brooklyn tailor is injured riding in a
car that sustains hit from behind – Herniated
discs.
Kings County, New York
sought recovery of damages for pain and suffering,
loss of enjoyment of life and related medical
expenses.
The matter was resolved via settlement for
$1,675,000 some weeks prior to trial.
In this matter, a man was struck by a car. The
matter was resolved pretrial via settlement.
REFERENCE
The plaintiff, Shalmu A., was a passenger in a car on
Cropsey Avenue when it was struck in the rear by a
van owned by the Robin Bus Company. The plaintiff
sustained an injury to his left knee, shoulder and lower
back. He underwent surgery for each injury, including
a herniated disc removal and the fusing of two vertebrae with plates and screws.
Attorney for plaintiff: David L. Scher of Block O’Toole
& Murphy, LLP in New York, NY. Attorney for
defendant: Lewis Brisbois Bisgaard & Smith LLP in
New York, NY.
Shalmu Abramov vs. Robin Bus Co. Inc. Index no.
18171/2009, 05-27-13.
The plaintiff filed suit in the New York State Supreme
Court, Kings County for motor vehicle negligence,
naming as the defendant Robin Bus Co. Inc. He
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20
$587,500 RECOVERY
UM Case – Plaintiff is driver struck in rear by
driver who flees scene – Cervical and lumbar
herniations – Injections – Exacerbation of
emotional depression – Inability of the social
worker to continue job.
Camden County, New Jersey
This case involved a plaintiff driver who was in
the course of her employment for a social services
agency. The plaintiff related that she had been
stopped at a red light, and that when the light
changed green, she waited for a pedestrian to
complete crossing when she was struck in the rear
by the defendant driver. The plaintiff related that
the underlying defendant driver left his car,
checked on her and then fled the scene. The
plaintiff, who did not own a car or reside with
anyone who owned a vehicle, proceeded under
her employer’s $1,000,000 UM policy. The parties
agreed to submit the case to arbitration in the
event the subject mediation did not result in the
resolution of the case.
The plaintiff, approximately 60, contended that she
suffered lumbar and cervical herniations that were
confirmed by MRI and which will cause permanent
pain and limitations despite injections and physical
therapy. The plaintiff, who had a history of emotional
depression that continued up until the time of the col-
lision, maintained that the chronic pain associated
with the incident caused an aggravation and that in
view of the permanent nature of the physical pain, it
is very likely that this aggravation is permanent as
well. The plaintiff sought compensation for future
medical care, repayment of a worker’s compensation lien, as well as past and future lost wages and
pain and suffering.
The plaintiff was employed as a social worker placing
alcohol and drug abuse clients in various jobs. She
was earning approximately $28,000 per year. The
plaintiff maintained that she will not be able to return
to work because of the injuries. The defendant questioned that extent to which the accident caused the
alleged complaints and psychiatric disability, pointing out that the incident caused relatively modest
property damage.
The case, which was not placed into litigation, settled
before it was scheduled to be arbitrated for
$587,000.
REFERENCE
Davis vs. Philadelphia Insurance Company.; mediator
Judge Charles Previti (retired), 04-04-13.
Attorney for plaintiff: Michael J. Dennin of Law Office
of Vincent Ciecka in Pennsauken, NJ.
$55,000 VERDICT
Defendant strikes the rear of the plaintiff’s vehicle
– Cervical injuries – Shoulder impingement.
Payne County, Oklahoma
In this vehicular negligence action, the plaintiff
maintained that the defendant negligently
collided with the rear of the plaintiff’s vehicle. The
defendant maintained that the accident was
caused by the negligent actions of the plaintiff.
On January 8, 2008, the male plaintiff was traveling
on Washington near the Parkway in Stillwater,
Oklahoma. At the same time, the defendant was also
traveling on Washington when she suddenly and without warning, struck the plaintiff’s vehicle in the rear.
The plaintiff maintained that the defendant was negligent in failing to keep and maintain a proper lookout,
failing to have vehicle under proper and adequate
control and failing to maintain an assured clear
distance.
As a result of the collision, the plaintiff maintained that
he suffered injuries to his cervical spine and left shoulder impingement syndrome. The defendant denied
all allegations of negligence and maintained that the
plaintiff cut in front of the defendant and stopped
suddenly and the defendant was unable to avoid
striking the plaintiff. In addition, the defendant maintained that the plaintiff’s shoulder complaints were
congenital and not related to the motor vehicle
accident.
The jury found that the defendant was negligent and
awarded the plaintiff $55,000 in damages.
REFERENCE
Chad Crockett vs. Julie Jiang Fath. Case no. CJ2010-522; Judge Stephen R. Kistler, 07-25-13.
Attorney for plaintiff: Patrick Collogan of Martin,
Jean & Jackson in Stillwater, OK. Attorney for
defendant: Stephen Marc Walls of State Farm
Insurance Company in Oklahoma City, OK.
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21
$17,665 VERDICT
Defendant strikes the rear of the plaintiff’s
stopped vehicle – Failure to remain alert and
attentive – Cervical and lumbar disc injuries –
Right knee contusion and sprain.
maintained that she was stopped at a red light
when her vehicle was struck in the rear by the
defendant. The defendant made a general denial
of the allegations against him and claimed that
the plaintiff was comparatively negligent in
causing the collision.
The female plaintiff in this personal injury action was
stopped at a red light on Martin Luther King Way in
Berkeley, California on August 8, 2007. While waiting
for the light to change, the plaintiff’s vehicle was suddenly and without warning struck in the rear by the
defendant. The plaintiff maintained that the defendant driver was negligent in traveling at an excessive
rate of speed, failing to remain alert and attentive
and failing to have his vehicle under proper and
adequate control.
As a result of the accident, the plaintiff, who is a clinical psychologist, suffered disc injuries to her neck and
back and a right knee injury. She missed a substantial
amount of time from work due to her injuries. The defendant denied being negligent and maintained that
it was the actions or inactions of the plaintiff that
caused or contributed to the accident.
The jury found that the defendant was 100% liable for
the accident. The jury awarded the plaintiff $6,664.96
in past medicals, $3,500 in past wage loss and
$7,500 in past pain and suffering, for a total of
$17,664.96.
REFERENCE
Monika Poxon vs. Warren I. Dotz. Case no.
HG09466752; Judge Lawrence John Appel, 08-2213.
Attorney for plaintiff: Patricia Turnage of Law Offices
of Patricia A. Turnage in Hayward, CA. Attorney for
defendant: Milan R. Yancich of Philip M. Andersen &
Associates in Pleasanton, CA.
Defendant strikes the rear of the plaintiff’s vehicle
– Cervical and lumbar sprain and strain injuries.
reasonable lookout, failing to use the proper degree
of attention and care and failing to stop within the
assured clear distance ahead.
The plaintiff maintained that as a result of the accident, she sustained injuries to her cervical and lumbar spine. The defendant denied all allegations of
negligence and maintained that the plaintiff was
comparatively negligent. In addition, the defendant
maintained that the plaintiff was not seriously or permanently injured in the accident.
maintained that the defendant driver was
negligent in the operation of her vehicle when she
struck the rear of the plaintiff’s vehicle. The
defendant denied all allegations of negligence
and denied that the plaintiff sustained any serious
or permanent injuries in the collision.
On December 26, 2008, the female plaintiff was operating her vehicle westbound on East 41st Street
near its intersection with Harvard Street in Tulsa,
Oklahoma. While approaching the intersection, the
plaintiff slowed for traffic when her vehicle was struck
in the rear by the defendant. The plaintiff maintained
that the defendant was negligent in failing to keep a
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The jury found in favor of the defendant.
REFERENCE
Sherron Jones vs. Kortney Dell Michael. Case no. CJ2010-7655; Judge Carlos Chappelle, 06-20-13.
Attorney for plaintiff: Michael Ross Green of Michael
R. Green, P.L.L.C. in Tulsa, OK. Attorney for
defendant: J. Andrew Brown of Atkinson, Haskins,
Nellis, Brittingham, Gladd & Carwile in Tulsa, OK.
22
PREMISES LIABILITY
Fall Down
$486,524 VERDICT
Premises Liability – Fall Down – Plaintiff falls on
an oily substance in a restaurant in the
defendant’s casino – Hip fracture – Surgery
required.
Camden County, New Jersey
In this premises liability action, the plaintiff
maintained that the defendant casino was
negligent in failing to properly inspect the floor
and remedy a slippery condition that existed in
their restaurant. As a result, the plaintiff slipped
and fell and fractured her hip. The defendant
denied all allegations of negligence.
On August 22, 2009, at approximately 8:30 to 9:00
p.m., the female plaintiff was a business invitee of the
defendant’s “Sultan’s Feast” restaurant. Sultan’s Feast
is a self-service buffet-style restaurant located within
the Trump Taj Mahal Casino Resort in Atlantic City,
New Jersey. As the plaintiff was being led to a table
by a hostess for the defendant, she slipped on an oily
substance on the tile floor of the restaurant. The people dining with the plaintiff stated that it looked like
the plaintiff was ice skating and that after she was on
the ground, they bent down to render assistance and
noticed an oily substance on the floor.
The plaintiff maintained that the defendant was negligent in failing to make proper inspections of the premises, negligently allowing a dangerous condition to
exist on the premises and failing to warn of the dangerous condition. The defendant denied that a dangerous condition existed on the premises and argued
that if it did, they had no constructive notice of the
condition and could therefore not remedy the
condition.
The jury found that the defendant was 100% liable for
the plaintiff’s injury and awarded the plaintiff past
wage of $22,680, past medicals of $168,844.21, future medicals of $50,000 and pain and suffering of
$250,000, for a total of $486,524.21.
REFERENCE
Klavdya Bezglasnaya vs. Trump Entertainment Resorts,
Inc. Docket no. 11-cv-00564; Judge Joel Schneider,
05-09-13.
Attorney for plaintiff: Edward s. Goldis of Feldman
Shepherd Wohlgelernter Tanner Weinstock & Dodig
in Philadelphia, PA. Attorney for defendant: Russell L.
Lichtenstein of Cooper, Levenson, April, Niedelman &
Wagenheim, PA in Atlantic City, NJ.
$300,000 RECOVERY
Premises Liability – Fall Down – Cable installer
trips over hose covered in snow – Knee injury.
Will County, Illinois
In this matter, a cable company employee sued
the owner of the home where he was injured. The
matter was resolved via settlement in arbitration.
On December 2, 2008, the plaintiff Marc D. was installing a cable at the home of the defendant,
Khuram G. The plaintiff tripped over a garden hose
buried under the snow and fell. As a result of the fall,
the plaintiff allegedly suffered a knee injury requiring
surgery and resulting in his permanent disability.
ages for his past and future financial losses due to the
loss of his work capacity, as well as $81,000 in
medical costs.
The matter was resolved with the defendant for
$300,000.
REFERENCE
Marc Dixon vs. Khuram Gaba. Case no. 10 L 923, 0327-13.
Attorney for plaintiff: Cory M. Boyer of Steven J.
Malman & Associates, P.C. in Chicago, IL. Attorney
for defendant: Mary Joe Bonamino of Allstate
Insurance in Chicago, IL.
The plaintiff filed suit in the Circuit Court of Will County
for premises liability, naming as defendant Khuram G.
The plaintiff sought recovery of compensatory dam-
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23
Hazardous Premises
$910,048 JUDGMENT FOLLOWING TRIAL AND POST TRIAL MOTIONS
Premises Liability – Hazardous Premises –
Dressing room bench collapses as plaintiff sits on
it in the defendant’s store – Exacerbation to
preexisting back injury at L4-L5 – Double
discectomy.
New London County, Connecticut
In this premises liability matter, the plaintiff
alleged that the defendant store was negligent in
permitting a dangerous condition to exist in its
dressing rooms. The plaintiff was injured when a
dressing room bench broke as the plaintiff sat
down on it. The plaintiff suffered an exacerbation
of a preexisting back injury to her lumbar spine at
L4-L5. The defendant denied liability maintaining
it did not have notice of any problem with the
dressing room bench. The defendant also
disputed the nature and extent of the plaintiff’s
injuries and damages, contending that the
plaintiff’s injuries and resulting surgery were
causally related to a preexisting back problem
and were not due to the dressing room fall.
The 59-year-old female plaintiff, a Navy veteran, was
a patron at the defendant’s department store. As the
plaintiff went to sit down on a dressing room bench
while trying on clothes, the bench collapsed and the
plaintiff fell to the floor. As a result of the incident, the
plaintiff sustained an exacerbation to her preexisting
L4-L5 back injury. While she was able to leave the
store of her own accord, her back pain increased
significantly in the days following the incident.
She was ultimately diagnosed with a disc herniation
that required her to undergo a double discectomy to
relieve compression on her nerve root and spine. Despite a history of back pain dating back to her tour in
the Navy, the plaintiff alleged that the recent increased pain and discomfort was solely related to
the fall. The plaintiff brought suit against the defendant alleging negligence and maintaining that the
defendant permitted a dangerous condition in the
form of the defective bench to exist in the store.
The defendant denied the allegations of liability and
damages. The defendant maintained that it had no
notice of any problem with the bench in the dressing
room prior to it breaking and therefore was not liable
to the plaintiff for her alleged fall. The defendant also
disputed the causal relationship and nature of the
plaintiff’s injuries and damages. The defendant argued that the plaintiff’s alleged back injury was unrelated to the incident and the plaintiff left the store of
her own accord and did not seek immediate
medical help.
The plaintiff made an offer of judgment of $100,000
pursuant to statute prior to the trial. The defendant
made an offer of $45,000 at the time of jury selection
which it increased to $200,000 after the evidence
was presented at trial. The defendant withdrew its offer in total when the jury returned ten minutes into deliberations with a question as to when the plaintiff
hired her attorney.
The matter was tried over a period of three days. The
jury deliberated for four hours and returned its verdict
in the amount of $654,000. The verdict consisted of
$424,000 in economic damages, $230,000 in noneconomic damages. A judgment was entered by the
court following post-trial motions by both parties in the
amount of $910,048 which included $350 in attorney
fees, $247,592 in interest and $8,106 in costs. The
case has been appealed by the defendant.
REFERENCE
Plaintiff’s orthopedic surgery expert: Mark H.
Blechner, M.D. from Waterford, CT. Defendant’s
orthopedic surgery expert: Steven Selden, M.D. from
Bloomfield, CT.
Lori Shriver vs. Wal-Mart Stores, Inc. Case no. CV-086000756-S; Judge Robert Martin, 04-04-13.
Attorney for plaintiff: Frank J. McCoy of McCoy &
McCoy LLC in Hartford, CT. Attorney for defendant:
Michael C. Kenney of LeClair Ryan in Hartford, CT.
Premises Liability – Hazardous Premises –
Plaintiff’s foot gets caught in a runner at the
entrance to the defendant’s store and she falls to
the ground – Head contusion – Left arm injuries –
Bilateral knee contusions.
In this premises liability action, the elderly female
plaintiff alleged that the defendant store owners
created a hazardous condition in placing a plastic
runner inside the door at the entrance of the
store. The plaintiff maintained that the runner
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caused her to trip and fall. The defendants
maintained that the incident was caused when the
plaintiff failed to use caution in entering the store.
On September 2, 2009, the 80-year-old female plaintiff was attempting to enter the defendant UPS store in
Oakland, California. Upon crossing the threshold, the
plaintiff’s foot got trapped in a plastic runner that was
inside the doorway and she fell to the ground. When
she fell, she hit her head on a cabinet. The plaintiff
maintained that the defendants were negligent in
causing or permitting a hazardous and dangerous
condition to exist on the premises, negligently laying
24
the plastic runner on the floor in a haphazard way,
failing to warn store patrons of the dangers of the
plastic runner and breaching its duty by causing a
foreseeable hazard.
As a result of the fall, the plaintiff was taken to a local
hospital where she was diagnosed with a mild concussion, left arm contusion, left rotator cuff injury and
bilateral pain and swelling to the knees. The defendants admitted that the plaintiff tripped and fell in the
store, but maintained that the plaintiff was fully aware
of the plastic runner as the runner had been down for
years and the plaintiff had visited the store on many
occasions. The defendants argued that the no other
patrons had fallen on the runner and that the plaintiff
simply failed to use proper care in entering the store.
The jury was asked if the conduct of the defendant
store owners constituted negligence in their possession, control and management of the store and the
jury answered “no”.
REFERENCE
Hazel Cary vs. UPS Store #3270, Hiten and Mike Patel.
Case no. RG11586451; Judge Gail Bereola, 09-0413.
Attorney for plaintiff: Jacqueline Coulter-Peebles in
Oakland, CA. Attorney for defendant: Deborha T.
Bjonerud of Philip M. Andersen & Associates in
Pleasanton, CA.
Premises Liability – Hazardous Premises – Plaintiff
is kicked by a horse while a business invitee on
the defendant’s farm – Tibia/fibula fracture.
In this negligence action the plaintiff maintained
that she was injured when she was kicked by a
horse while attending a trail ride on the
defendant’s farm. The plaintiff asserted that the
defendant’s negligence caused the incident. The
defendants denied being negligent and
maintained that it was the actions of the plaintiff
that caused the incident.
On April 9, 2010, the female plaintiff was a business
invitee of the defendant farm which was owned by
the defendant individuals. The plaintiff had scheduled
a trail ride for her daughter’s ninth birthday. While on
the trail ride, one of the horses owned and controlled
by the defendants kicked the plaintiff causing her injury. The plaintiff maintained that the defendants
were negligent in failing to properly control their
horses, failing to ascertain the participant’s abilities,
providing inadequate equipment and creating an
environment which was hazardous.
As a result of being kicked by the horse, the plaintiff
suffered a broken right tibia and fibula. The defendant denied all allegations of negligence and argued that the plaintiff’s own negligence caused the
incident in question. In addition, the defendants
maintained that were not liable for the plaintiff’s injuries under the Oklahoma Livestock Activities Liability
Limitation Act. The Oklahoma Legislature recognizes
that persons who engage in livestock activities may
incur injuries as a result of the risks involved in such
activities even in the absence of any fault or negligence on the part of persons or entities which
sponsor, participate or organize those activities.
The jury found no negligence on the part of the
defendants.
REFERENCE
Tanya Brown vs. Kenneth and Misty Beets and Barb B
Farm. Case no. CJ-2010-5812; Judge Carlos
Chappelle, 06-20-13.
Attorney for plaintiff: George M. Miles of Frasier,
Frasier & Hickman in Tulsa, OK. Attorney for
defendant: Mark A. Smiling of Smiling & Miller, P.A.
in Tulsa, OK.
EMPLOYER’S LIABILITY
$57,000,000 VERDICT
Employer’s Liability – Civil Assault – Hispanic
immigrant is left severely brain damaged and
physically deformed after beating by private
security guard.
On April 19, 2010, the plaintiff, an undocumented
immigrant, was involved in a fight at a Los
Angeles bar. The plaintiff was removed from the
bar by a security guard employed by the
defendant DGSP Security and Patrol Services. The
security guard struck him in the head with a baton
several times before pulling him out of the bar,
where he repeatedly hit him in the head and
slammed his head into the pavement.
The plaintiff suffered bodily and brain injuries due to
the severe beating. His injuries were so severe that
doctors removed a portion of his brain and skull. He
now requires 24 hour assistance, including help walking, eating and otherwise caring for himself.
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The family of the plaintiff filed suit in the Los Angeles
division of the Superior Court of California, seeking recovery of damages from the defendant DGSP Security and Patrol Services. The plaintiffs sought recovery
for $58 million dollars in damages for economic and
medical losses, future medical expenses, and lost
earnings, in addition to pain and suffering. The defendant denied the accusation of wrongdoing.
25
The jury returned a $57 million verdict for the plaintiff.
REFERENCE
Antonio Lopez Chaj vs. DGSP Security and Patrol Services. 07-02-13.
Attorney for plaintiff: Fernando Chavez of Chavez &
De Leon, P.A. in San Jose, CA.
$1,678,000 VERDICT
Wrongful Termination – CEPA – Whistleblower is
fired for reporting manager who brought child to
work near convicted sex offenders.
Philadelphia County, Pennsylvania
In this matter, a New Jersey resident accused her
Pennsylvania-based former employer of
retaliatory firing. The defendant denied the
accusation.
The plaintiff worked as a senior case manager at The
Kintock Group, a corporation that provides transition
services to recently-released ex-convicts. While an
employee, the plaintiff reasonably believed that a
manager was engaged in drug activity and violated
public policy when he brought his child to the facility
where convicted child predators were assigned to report. The plaintiff objected to or disclosed the conduct and was thereafter terminated.
The plaintiff filed suit in the Philadelphia Court of
Common Pleas for retaliatory termination in violation
of her rights under the New Jersey Conscientious Em-
ployee Protection Act (“CEPA”). The matter was filed in
Philadelphia due to the defendant, The Kintock
Group, being headquartered in Pennsylvania and
regularly conducting business in Philadelphia. The
defendant denied the accusation.
After a five day trial, the jury returned a finding for the
plaintiff, concluding that the plaintiff had been retaliated against by her employer.
The defendant was ordered to pay $1.68 million, including $77,989 in back pay, $100,000 in pain and
suffering damages, and $1.5 million in punitive
damages.
REFERENCE
Marla Pietrowski vs. The Kintock Group. Case no.
111003328; Judge Annette Rizzo, 03-27-13.
Attorney for plaintiff: Laura Carlin Mattiacci & Rahul
Munsh of Console Law Offices in Philadelphia, PA.
Attorney for defendant: Caren Litvin of Caren Litvin,
Attorney at Law in Radnor, PA.
$1,000,000 RECOVERY
Employer’s Liability – Failure to provide automatic
external defibrillator – Failure to train personnel –
Five-year-old suffers cardiac arrest while at the
defendant’s gymnastics class – Fatal ischemic
brain injury.
Not Disclosed County, California
In this negligence matter, the plaintiff alleged that
the defendant gymnastics facility was negligent in
failing to provide an automatic external
defibrillator and trained personnel at its facility in
violation of applicable law. The plaintiff’s
decedent, a five-year-old taking gymnastics class
at the defendant’s facility, suffered cardiac arrest
which resulted in a fatal brain injury. The
defendant denied any liability and maintained it
had no duty to have an AED on the premises or to
have personnel training in the use of the device.
On October 18, 2012, the five-year-old decedent
was participating in a gymnastics class at the defendant gymnastic studio. During the class, the child unexpectedly suffered cardiac arrest. The plaintiffs
contended that the facility should have been
equipped with an automatic external defibrillator device (AED) which could have been used to save the
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child’s life. As a result of the lack of an AED on the
premises, the child suffered a fatal anoxic brain injury.
The plaintiffs brought suit against the defendant facility alleging negligence. The plaintiffs contended that
the facility should have had an AED since it qualified
as a health studio under California law and all such
facilities were required to devices and trained personnel. The defendant denied the allegations. The defendant contended that it did not qualify as a health
studio under the statute.
Furthermore, the defendant contended it was not under a legal duty to use the AED even if one had been
located on the premises. The defendant contended
that the child died as a result of choking on her own
vomit and/or she suffered from non-shockable arrhythmia. Additionally, the defendant contended that
the child’s parents had signed a waiver which absolved the facility of liability.
The parties agreed to resolve the plaintiffs’ claim for
$1,000,000, representing the value of the defendant’s insurance policy.
26
REFERENCE
Plaintiff’s pediatric cardiology expert: Kevin M.
Shannon, M.D. from Los Angeles, CA.
Attorneys for plaintiff: James P. Carr and Tyler J.
Barnett of Yuhl Carr LLP in Marina Del Rey, CA.
Krist Azizian and Karine Azizian vs. Gymnastics World
Enterprise. 07-09-13.
$600,000 VERDICT
Gender Discrimination – Female UPS driver sues –
Violation of Title VII of Civil Rights Act of 1964.
U.S. District Court - Western District of Texas
In this case, a delivery driver accused her
employer of gender discrimination, culminating in
her termination. The defendant denied the
accusation.
In 2009, the plaintiff was driving a UPS truck when it
hopped a curb and hit a telephone pole, causing no
injuries. The plaintiff, an employee of UPS at its
Odessa facility, was fired after this collision. The plaintiff filed a grievance under her union’s collective bargaining agreement challenging her termination. In
her grievance, the plaintiff claimed that the firing was
unjust, but did not allege sex discrimination. After a
local hearing under union representation, her discharge was upheld. Her grievance was later denied
following an evidentiary hearing before the Southern
Regional Area Parcel Grievance Committee. Thereafter, the plaintiff filed a charge of sex discrimination
with the Equal Employment Opportunity Commission
(EEOC).
Following receipt of a right-to-sue notice from the
EEOC, the plaintiff filed suit in the United States District
Court for the Western District of Texas. The plaintiff accused the defendant United Parcel Service of sexual
discrimination in violation of Title VII under the Civil
Rights Act of 1964. The defendant UPS denied the
accusation.
At trial, the plaintiff argued that the plaintiff driver and
other women at the Odessa facility were subjected to
a pattern of repeated insults and harassment based
on their gender. The plaintiff submitted evidence
showing that UPS managers gave the plaintiff more
packages to deliver than her male counterparts. The
plaintiff cited one incident in which she, while pregnant, was given six 100-pound packages to deliver
between 9:30 and 10:00 p.m. Trial witnesses further
testified that several male UPS drivers from the same
facility were permitted to keep their jobs, despite
being in far worse accidents.
The jury found for the plaintiff and awarded $600,000
in damages for the violation of her civil rights.
REFERENCE
Amber Ibarra vs. United Parcel Service. Case no.
7:10-cv-00113-HLH; Judge Harry Hudspeth, 02-25-13.
Attorneys for plaintiff: Holly Williams of Williams
Law Firm, P.C. in Midland, TX, and Brian Carney of
Law Office of Brian Carney in Midland, TX. Attorneys
for defendant: Heather Peckham of Akin Gump
Strauss Hauer & Feld LLP in Dallas, TX, and John
Jansonius of Jackson Walker LLP in Dallas, TX.
$400,000 CONFIDENTIAL RECOVERY
Employer’s Liability – Worker’s Compensation –
Employee falls from roof – Calcaneal fracture –
Complications including cardiac issues and
prescription drug addiction – Temporary and
permanent benefits for anticipated amputation.
In this worker’s compensation matter, the plaintiff
alleged that he was unable to return to work as a
result of complications resulting from a heel
fracture which may require amputation. The
defendant employer disputed the plaintiff’s
allegations and alleged damages.
The 49-year-old male plaintiff was a worker that fell
from a roof in the course and scope of his employment. The plaintiff suffered a calcaneal fracture. The
plaintiff suffered a host of problems as a result of the
fracture, which included an infection that led to anticipated amputation, and cardiac issues. The plain-
tiff also developed an addiction to the prescription
medication that he was taking as a result of the
incident.
The plaintiff brought suit alleging that he was unable
to return to work and was entitled to additional
worker’s compensation benefits. He received temporary benefits and was granted permanent and total
disability by the court. The defendant denied the allegations and maintained that the plaintiff was capable of work despite his injuries and the possible
amputation which was not definite. It was determined
that the plaintiff may be able to engage in sedentary
work after the amputation.
The parties agreed to a settlement where the employer would pay for the future medical expenses for
future surgery, prescription drug addiction and psychological issues including depression as a result. The
total settlement value was $400,000.
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27
REFERENCE
Plaintiff Worker Doe vs. Defendant Employer Company Roe. 01-15-13.
Attorney for defendant: Dale M. Morgan of Morgan &
Murphy in New Bedford, MA.
ADDITIONAL VERDICTS OF PARTICULAR INTEREST
Construction Site Negligence
$450,000 RECOVERY
Construction Site Negligence – Beam shifts hitting
plaintiff/decedent in chest and causing 20 foot fall
– Wrongful death.
Harris County, Texas
In this construction site negligence matter, the
plaintiffs alleged that the plaintiff/decedent
sustained fatal injuries while working at a job site
for defendant corporation. The plaintiffs
contended that the plaintiff/decedent was 20 feet
above the ground on a ladder while welding two
large pieces of steel beam together. The plaintiffs
claimed that the beam shifted and knocked the
plaintiff/decedent to the ground. The defendant
denied the plaintiffs’ allegations.
The plaintiffs alleged that on April 27, 2009, the plaintiff/decedent was an employee and/or independent
contractor working for defendant corporation. The
plaintiffs alleged that on this day, the plaintiff/decedent was working at a job site on Bamboo Road in
Houston. He was attempting to weld two large pieces
of steel beam together at the top of a structure that
defendant corporation was hired to renovate. The
plaintiff/decedent was about 20 feet above the
ground on a ladder. The plaintiffs asserted that the
defendant corporation provided no fall protection for
the plaintiff/decedent. Without warning, the beam
which the plaintiff/decedent was welding, shifted and
struck him, knocking him to the ground. He sustained
fatal injuries.
The defendant corporation alleged that the corporation was contracted to perform a roof overhaul on an
office located on Bamboo Road. On April 27, 2009,
the decedent was working as an independent contractor for the corporation when a beam, which de-
cedent had just partially welded to a column, and
while still being held by a crane, swung loose hitting
decedent in the chest and killing him upon impact.
The defendant corporation asserted that all workers
on the site were known to be independent contractors and were made to sign a contract stating that
they were subcontractors and paid on the square
footage of the job completed.
The plaintiffs brought suit against the defendant corporation alleging that it failed to provide a safe workplace for the plaintiff/decedent, failed to provide fall
protection equipment and failed to properly train its
employees to avoid causing injuries or death to others on the job site. The defendant corporation disputed the plaintiff/decedent’s alleged injuries, and
argued that his injuries were caused by the negligence and/or responsibility of the plaintiff/decedent.
The parties agreed to a settlement of $450,000 for
the plaintiffs.
REFERENCE
Socorro Gonsalez Monroy, Individually and as next
representative of the Estate of Juan Jose Meza, Deceased, and Maria Martha Meza A/N/F of Joshua
Manuel Meza, a Minor vs. White’s Building Service,
Inc. Case no. 2009-71864; Judge Alfred H. Bennett,
09-21-12.
Attorney for plaintiff: Benny Agosto, Jr. of Abraham,
Watkins, Nichols, Sorrels, Agosto & Friend in
Houston, TX. Attorney for plaintiff Guardian Ad
Litem: Jose R. Lopez, II in Houston, TX. Attorneys for
defendant: C. Thomas Valentine & Jamie L. Saleh of
Daw & Ray, LLP in Houston, TX.
Dram Shop
$742,500 RECOVERY
Dram Shop – Defendant establishment allows the
decedent to leave the premises in an intoxicated
state – Decedent crashes his car after leaving the
bar, sustaining fatal injuries –Wrongful death of
25-year-old male.
Harris County, Texas
The Estate of the decedent filed this Dram Shop
liability actions against the restaurant where the
decedent was employed alleging that the
defendant encouraged Dram Shop violations and
allowed the decedent to the leave the premises in
an intoxicated state when he was a danger to
himself and others. The defendant restaurant
denied violating any Dram Shop laws.
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28
The 25-year-old male was a server at the Guri Do Sol
Steakhouse, a restaurant owned by the defendant
Brazilian Ventures in Shenandoah, Texas. After his shift
on December 31, 2010, the decedent consumed
several alcoholic drinks. In the early morning hours of
January 1, 2011, the decedent left the defendant establishment and started to drive home. On his way
home, the decedent drove into a ditch and sustained fatal injuries. The decedent was survived by his
wife, three minor children and his parents.
The plaintiffs maintained that the defendant’s management provided the decedent and other employees with a champagne toast at midnight, and then
allowed them to continue drinking. The plaintiffs argued that the decedent was negligently served alcohol to the point of intoxication and was negligently
allowed to leave the premises in an intoxicated state
violating state Dram Shop Laws. The plaintiffs further
argued that the defendant encouraged Dram Shop
Act violations, claiming there was evidence of drug
use and frequent intoxication on the part of
managers.
The defendant maintained that the plaintiffs could
not prove that the decedent was served alcohol and
argued that the decedent served himself. Additionally, the defendant maintained the plaintiffs’ claims
were barred by the safe harbor defense, arguing restaurant employees underwent Dram Shop Act compliance training and that management did not
encourage violations of the Act.
The parties entered mediation prior to trial and settled
for $742,500.
REFERENCE
Eric Anderson and Maria Anderson individually, as
wrongful death beneficiaries and as representatives
of the Estate of Victor Ranaud and Jessica Renaud as
next friend of Emma Renaud, Brenden Renaud and
Krista Renaud vs. Brazilian Ventures LP d.b.a. Guri Do
Sul’s Steakhouse. Case no. 201140078; Judge Michael Gomez, 01-22-13.
Attorney for plaintiff: Keith Purdue of Grossman Law
Offices P.C. in Dallas, TX. Attorney for defendant:
Robert Bateman of Bateman Pugh & Chambers in
Houston, TX.
Excessive Use of Force
$50,000 VERDICT INCLUDING $15,000 PUNITIVE DAMAGE AWARD
Excessive Use of Force – Civil Rights – False Arrest
– Malicious Prosecution – Plaintiff alleges that he
was stunned with a Taser after questioning officer
who was arresting his wife for a traffic violation –
Emotional distress.
U.S. District Court - Northern District of Illinois
In this excessive force matter, the plaintiff alleged
that he was subjected to an excessive use of force,
falsely arrested and prosecuted when he arrived
on the scene where the defendant officers were
arresting his wife for a minor traffic violation. The
defendant alleged emotional distress as a result
of the incident and sought punitive damages. The
defendant city denied the allegations and
maintained that reasonable force was used based
upon the plaintiff’s erratic and unrelenting
behavior.
The male plaintiff arrived at the scene where the defendant’s officers were in the process of arresting the
plaintiff’s wife for a minor traffic violation. The wife was
en route to pick up their children from school. When
the plaintiff arrived at the scene, he began to question the defendant’s officer who was arresting his wife
and attempted to find out information since the couple’s children needed to be picked up from school.
The plaintiff contended that the officer refused to answer any of the plaintiff’s questions and the two men
began arguing. During the course of the verbally
heated argument, the plaintiff used profanity and displayed his middle finger in a rude gesture to the
officer.
The plaintiff contended that despite having no physical contact with the officer, the officer proceeded to
use his Taser on the plaintiff three times and the officer punched the plaintiff in the face four times. The
plaintiff was then arrested by the officer and charged
with obstructing a police officer, resisting a police officer and battering a police officer. The plaintiff was
acquitted of all charges at the trial in this matter.
The plaintiff brought suit against the defendant town
alleging that its officer had used excessive force in
confronting the plaintiff, as well as alleging false arrest
and malicious prosecution. The plaintiff sought damages for emotional distress and punitive damages.
The defendant denied the allegations. The officer
maintained that the plaintiff was aggressive and
punched the officer several times and refused to
comply with the officer’s orders.
The matter was tried over a period of six days.
At the conclusion of the trial, the jury deliberated and
returned its verdict in favor of the plaintiff and against
the defendant. The jury awarded the plaintiff the sum
of $50,000, consisting of $35,000 in compensatory
damages and $15,000 in punitive damages.
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29
REFERENCE
Kurt Kopek vs. City of Aurora, et al. Case no. 10-cv5593; Judge Milton Shadur, 06-10-13.
Attorney for plaintiff: Arthur Loevy, John Loevy,
Roshna Bala Keen and Rachel Steinback of Loevy &
Loevy in Chicago, IL. Attorneys for defendant: John
Murphey and Yancey Pinkston of Rosenthal Murphey
Coblentz & Donahue in Chicago, IL.
Fraud
$70,000,000 VERDICT
Fraud – Breach of contract – Silicon Valley giant
backs out of project with smaller company.
U.S. District Court - District of Delaware
In this matter, a silicon valley networking giant
was sued by a patent-holding smaller company.
The matter was resolved via multi-million dollar
jury verdict in the state of Delaware.
In 2004, the plaintiff in this matter, XpertUniverse, began development of a corporate call center platform “Solutions Plus” in association with Genesys
Telecommunications Laboratories Inc. After the CEO
of that company became general manager of the
call center unit at Cisco Laboratories, the plaintiff began working with that company on the same project.
A non-disclosure agreement was signed in 2004, after
which the defendant Cisco was given access to every facet of the technology, including related patents. Cisco terminated the project in 2007. The
following year, they announced the launch of “Expert
on Demand”, a software that also matched customers with call center experts, which Goldman adapted
for film.
The plaintiff XpertUniverse Inc. filed suit in the United
States District Court, District of Delaware (Wilmington),
accusing defendant Cisco Systems of civil fraud,
breach of contract, misappropriation of trade secrets, patent infringement, conversion and unjust enrichment. The plaintiff asserted that Cisco infringed
two of their patents relating to technology used for
asking experts questions online. They also sought
compensatory damages, as well as an injunction
from further use of their intellectual property and treble damages for its wanton disregard for their rights
as its owners.
At trial, the plaintiff asserted that Cisco not only infringed their patents, but through their injurious involvement prevented the company from taking
advantage of opportunities to develop their technology with other parties. This loss of time and opportunity was argued as a fiduciary loss, in addition to
those for fraud and infringement. The defendant asserted that their conduct throughout their relationship
with XpertUniverse was appropriate. They further asserted that XpertUniverse never had a product for
development or sale.
After two weeks of trial, the jury returned a finding for
the plaintiff, including $70 million in civil fraud damages. The jury also concluded that Cisco infringed
two of the plaintiff’s patents and awarded them
$33,000 on each of those two counts.
REFERENCE
XpertUniverse, Inc. vs. Cisco Systems, Inc. Case no.
09-157-RGA; Judge Richard Andrews, 03-27-13.
Attorneys for plaintiff: Philip A. Rovner of Potter
Anderson & Corroon, LLP, and Charles Cantine of
Stroock & Stroock & Lavan LLP in New York, NY.
Attorney for defendant: Jack B. Blumenfeld of Morris,
Nichols, Arsht & Tunnell LLP.
Insurance Obligation
$236,186 VERDICT
Insurance Obligation – Uninsured motorist claim –
Rear end collision – Aggravation of preexisting
lumbar disc herniation – Surgery performed –
Damages/causation only.
Citrus County, Florida
The plaintiff was a retired police officer in his
early-50s when his car was struck from behind by
a vehicle driven by an uninsured motorist. The
plaintiff asserted a claim against his uninsured
motorist carrier, which stipulated to the
tortfeasor’s negligence in causing the collision.
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The defense maintained that the plaintiff did not
sustain a permanent injury as a result of the
accident.
The rear end collision occurred as the plaintiff was exiting a shopping center with his children in the car in
route to the movies. The plaintiff’s orthopedic surgeon
testified that the impact caused an aggravation of
the plaintiff’s preexisting lumbar disc herniation. The
plaintiff contended that the accident caused his prior
lumbar pain level to increase from six or seven out of
ten to eight or nine out of ten.
30
The plaintiff underwent two lumbar surgeries which his
operating orthopedic surgeon causally related to the
accident. The plaintiff’s wife, as well as a life-long
friend of the plaintiff, testified that the collision had a
significant negative impact on the plaintiff’s life. The
plaintiff made no claim for lost wages.
The defendant argued that the impact to the back of
the plaintiff’s car was light and caused approximately
$1,000 in property damage to the back of the plaintiff’s vehicle. Evidence showed that the plaintiff had a
history of a lumbar herniation and low back pain. The
defendant’s orthopedic surgeon testified that the
plaintiff’s condition was preexisting and not caused
nor permanently worsened as a result of the
accident.
The jury found that the plaintiff sustained a permanent injury as a result of the accident and awarded
him $236,186 in damages. The applicable uninsured
motorist policy limit was $100,000. Post-trial motions
are pending.
REFERENCE
Plaintiff’s (operating) orthopedic surgeon expert:
Craig Wolff from Tampa, FL. Plaintiff’s (treating)
orthopedic surgeon expert: Mark Oliver from Ocala,
FL. Defendant’s orthopedic surgery expert: Troy
Lowell from Ocala, FL.
Presti vs. State Farm Mutual Automobile Insurance
Company. Case no. 2010-CA-2811; Judge Carven
D. Angel, 03-10-13.
Attorney for plaintiff: Jonathan N. Zaifert of Rywant,
Alvarez, Jones, Russo & Guyton, PA in Tampa, FL.
Personal Negligence
$150,000 RECOVERY
Personal Negligence – Underage minor decedent
consumes alcohol at party at the defendant’s
residence – Decedent then gets into motor vehicle
collision on her way home and sustains fatal
injuries – Wrongful death of 19-year-old female.
Montgomery County, Pennsylvania
The parents of the 19-year-old female decedent
brought this negligence suit against the defendant
individual who hosted a party where the minor
became intoxicated and then left to drive home.
The plaintiffs maintained that the defendant’s
negligence caused their daughter’s wrongful
death. The defendant made a general denial of
all allegations against him.
On March 8, 2008, the female decedent was attending a get together at the defendant’s residential premises. While there the decedent, who was 19 years
old at the time, was served alcohol. The decedent
left the defendant’s premises while still intoxicated
and got into her car. While driving home on East 276
in Montgomery County Pennsylvania, she was involved in a motor vehicle collision when her vehicle
left the roadway and then reentered the roadway
colliding with another vehicle. The minor female died
from her injuries sustained in the accident.
The plaintiffs maintained that the defendant negligently allowed those under the age of 21 to consume alcohol at his residence, negligently furnished
alcohol to minors, furnished alcohol to the underage
decedent, served alcohol to the decedent to the
point of intoxication and allowed the decedent to
leave the premises while intoxicated. The defendant
made a general denial of all allegations against him
and maintained that it was the actions of the
decedent that caused the incident.
The parties settled their dispute for $150,000.
REFERENCE
Estate of Jessica Marie Gallagher by Ronald and
Robyn Gallagher vs. Christopher Ganister. Case no.
2010-03043; Judge Richard Haaz, 01-17-13.
Attorney for plaintiff: Gregory Gifford of Rubin,
Glickman, Steinberg and Gifford in Colmar, PA.
Attorney for defendant: Gary Gremminger of
German, Gallagher & Murtagh, P.C. in Philadelphia,
PA.
Police Liability
$4,100,000 BENCH VERDICT
Police Liability – Unlawful Search – Indigent
couple is shot by police during search without
warrant – Gunshot wounds.
U.S. District Court - Southern District of California
In this matter, a homeless couple sued after being
shot during a raid. The matter was resolved by a
jury verdict with a multi-million damages award.
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31
In October 1, 2010, Los Angeles County sheriff deputies conducted a warrant-less raid of a suspected
“drug house” and surrounding property, used excessive force and, with guns drawn, and, without announcing their presence, entered the makeshift shed
in the rear of the property where Angel and Jennifer
M. were living. Angel M. was shot multiple times resulting in catastrophic injuries including the loss of his
right leg. His wife, Jennifer M., who was seven months
pregnant, was shot in the back.
The plaintiffs filed suit against the County of Los Angeles in the United States District Court for Southern
California, arguing violations of their Fourth Amendment rights. The plaintiffs sought recovery of compensatory economic and non-economic damages for
their injuries, as well as punitive damages. The defendant denied all accusations of wrongdoing.
At trial, the plaintiff showed that plaintiffs were not
wanted by the police, and had no criminal records.
They further showed that the warrant-less search of
the property had yielded no evidence of it being or
having been a “Drug House”. The plaintiff asserted
that the indigent homeless are entitled to the same
full protection against unreasonable searches.
After a week of trial, Judge Fitzgerald rendered a verdict for the plaintiffs. The couple was awarded $4.1
million in damages.
REFERENCE
Angel and Jennifer Mendez vs. Los Angeles County.
Case no. CV 11-04771-MWF; Judge Michael W. Fitzgerald, 08-14-13.
Attorney for plaintiff: David Drexler of Law Offices of
David Drexler in CA. Attorney for defendant: Thomas
C. Hurrell of Hurrell Cantrall LLP in Los Angeles, CA.
Sexual Harassment
$1,500,000 VERDICT
Sexual Harassment – Retaliation – Sexual
harassment alleged at national logistical services
company – Violation of civil rights.
U.S. District Court - Western District of Tennessee
In this matter the United States Equal Employment
Opportunity Commission filed suit against a
prominent national business for the harassment
of temporary workers at its Memphis-area
warehouse. The matter was resolved via jury
verdict after the company denied the accusations.
The defendant, New Breed Logistics, is a logistics services provider that helps companies design and operate supply chains, warehousing and distribution. It is
based out of High Point, North Carolina with warehouses in Memphis, Atlanta, Chicago, Dallas, Texas,
Los Angeles and Kearny, New Jersey. The claimants in
this matter were temporary employees at the company’s Avaya Memphis area warehouse facility. During their time at the facility, the claimants, three
female employees and one male employee, alleged that the staff violated the plaintiffs’ civil right by
subjecting them to lewd conduct, obscene and vulgar sexual remarks, and other harassment, as well as
firing them in retaliation for their complaining about
the treatment.
The United States Equal Employment Opportunity
Commission filed suit in the United States District Court
for the Western District of Tennessee after first attempt-
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ing resolution through its voluntary conciliation process. The defendant, New Breed Logistics, was
accused of sexual harassment and retaliation against
its employees for complaining, all violating Title VII of
the Civil Rights Act of 1964. The defendants denied
the accusation.
After seven days of trial, the jury returned a finding in
favor of the four claimants, awarding them in total
$177,094 in back pay, $486,000 in compensatory
damages and $850,000 in punitive damages. The
jury further granted the EEOC’s injunction prohibiting
further discrimination in the future, as well as granting
other injunctive relief to be determined by the court.
REFERENCE
U.S. Equal Employment Opportunity Commission vs.
New Breed Logistics. Case no. 2:10-cv-02696-STAtmp; Judge S. Thomas Anderson, 05-10-13.
Attorney for plaintiff: Kate Northrup of U.S. Equal
Employment Opportunity Commission in Cleveland,
OH. Attorneys for defendant: Louis P. Britt III & Asia
Nicole Diggs of Ford & Harrison LLP in Memphis, TN.
Attorneys for defendant: Rebecca Sharon Bromet,
Christopher J. DeGroff, Ada W. Dolph, Gerald L.
Pauling & Jason Keith Priebe of Seyfarth Shaw LLP in
Chicago, IL.
32
$500,001 VERDICT
Sexual Harassment – Retaliation – A union and
one of its officers retaliated against the female
painter/wallpaper hanger after she complained of
sexual harassment.
U.S. District Court - Eastern District of Missouri
In this matter, a painter alleged sexual
harassment and retaliation. The matter was
resolved in federal court via jury verdict.
Prior to April 18, 2009, the plaintiff Lesa D. was employed as a journeyman painter and paperhanger by
various contractors having a collective bargaining
agreement with the defendant, Painters District Council No. 2. The plaintiff alleged that defendant Joseph
B., who at various times was the Business Manager
and/or Secretary-Treasurer of the District Council,
made lewd sexual comments to her and sexually
propositioned her. The plaintiff further asserts that on
April 15, 2009, in an open District Council meeting,
the plaintiff complained about this conduct, and a
letter she had written detailing the objectionable
conduct was read at the meeting.
She alleged that in July 2009, her name was stricken
from a list from which union members were referred
to contractors for work. On September 29, 2009, a
“Trial Board” of the District Council found her guilty of
making slanderous allegations of sexual harassment
against the defendant and fined her $5,000. That decision was reversed on April 26, 2010, by the General
Executive Board of the international union. The plaintiff further alleged since that time, she has not been
able to find employment as a painter.
for the Eastern District of Missouri. The plaintiff accused the defendants Painters District Council No. 2
and Joseph Barrett of Sexual Harassment and retaliation, in violation of her rights under the Missouri Human Rights Act (“MHRA”) and retaliation against the
District Council under Title VII of the Civil Rights Act of
1964. The plaintiff further asserted that the defendant
District Council violated the Labor Management Reporting Disclosure Act (“LMRDA”) by retaliating against
her for exercising her free speech rights.
At trial, the plaintiff asserted that her letter of complaint was protected activity under Title VII, and the
MHRA. The defendant asserted that the defendant
had not shown that her name had been deleted
from the out-of-work list. They argued the plaintiff’s
lack of work was as a result of the recession.
At the conclusion of trial, a federal jury awarded
$500,001 to plaintiff, concluding that her union and
one of its officers retaliated against her after she
complained of sexual harassment.
REFERENCE
Lesa Dalton vs. Painters District Council No. 2. Case
no. 4:2010cv01090; Judge Audrey G. Fleissig, 07-0313.
Attorney for plaintiff: Lawrence P. Kaplan of Kaplan
Associates, LLC in St. Louis, MO. Attorney for
defendant: Denis Burns of Kortenhof McGlynn &
Burns LLC in St. Louis, MO.
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