SUMMARIES WITH TRIAL ANALYSIS VERDICTS BY CATEGORY

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1 SUMMARIES WITH TRIAL ANALYSIS Volume 20, Issue 8 August 2010 A monthly review of Florida State and Federal Civil Jury Verdicts with professional analysis and commentary. The Florida cases summarized in detail herein are obtained from an ongoing monthly survey of the State and Federal courts in the State of Florida. $44,932,206 VERDICT Motor vehicle negligence Plaintiff motorcyclist struck in rear at high rate of speed by defendant Corvette driver Plaintiff in his 50s suffers paraplegia Plaintiff unable to continue to provide care to his 23-year-old daughter who suffered brain damage in prior motor vehicle collision....2 $6,000,500 VERDICT Motor vehicle negligence Single vehicle collision 16-year-old driver exceeds speed limit and strikes tree Front seat passenger ejected from car Wrongful death of 16-year-old girl Damages only $500 in punitive damages...3 $1,061,677 VERDICT Motor vehicle negligence Head-on collision Severe brain injury Wrongful death of 19-year-old male Post-traumatic stress syndrome to surviving parents Damages/causation only....4 $10,000,000 VERDICT Negligence and reckless disregard by paramedics Failure to call for air transport Failure to take mother in labor to closest hospital Premature birth in ambulance Lack of oxygen to newborn Catastrophic brain injuries Cerebral palsy...5 $1,674,000 VERDICT Medical malpractice Morphine overdose at Veterans Hospital Failure to utilize pulse oximeter to detect respiratory depression Hypoxemia Permanent brain injury...6 $1,400,000 VERDICT Negligent hiring and retention Defendant moving company s employee intentionally locks plaintiff independent contractor in back of moving van and keeps him prisoner for several hours Plaintiff ultimately escapes by punching through back of truck, sustaining severe laceration to non-dominant forearm Permanent pain and loss of motion PTSD Plaintiff continues to work with difficulties Damages only.. 8 VERDICTS BY CATEGORY A capsulized summary of signficant verdicts from our companion publications is also included. Published monthly Professional Malpractice (3) Dental Hematology Nursing Home Negligence Civil Assault (1) Defamation (1) Fraud (1) Government Liability (1) Insurance Obligation (3) Motor Vehicle Negligence (5) Auto/Motorcycle Collision Rear End Collision Municipal Liability (1) Premises Liability (2) Fall Down Salon Negligence (1) Wrongful Termination (1) Supplemental Verdict Digest Copyright 2010 Jury Verdict Review Publications Inc.

2 2 Summaries with Trial Analysis $44,932,206 VERDICT MOTOR VEHICLE NEGLIGENCE PLAINTIFF MOTORCYCLIST STRUCK IN REAR AT HIGH RATE OF SPEED BY DEFENDANT CORVETTE DRIVER PLAINTIFF IN HIS 50S SUFFERS PARAPLEGIA PLAINTIFF UNABLE TO CONTINUE TO PROVIDE CARE TO HIS 23-YEAR-OLD DAUGHTER WHO SUFFERED BRAIN DAMAGE IN PRIOR MOTOR VEHICLE COLLISION. Lee County, FL Liability was stipulated in this case in which the plaintiff, 57-year-old motorcycle operator, who was moving, was struck in the rear by the defendant driver who was traveling at an excessive rate of speed. The plaintiff s injuries included a T-2 fracture that caused paraplegia. The injuries also included deep veined thrombosis that required the surgical implantation of a vena cava filter, a number of decubitus ulcers, bowel and bladder incontinence, and an emotional adjustment disorder. The evidence disclosed that some years earlier, the plaintiff s daughter had sustained severe brain damage in a motor vehicle accident, and that although she could walk with braces, she required extensive day to day care in basis activities such as putting on her shoes, assistance in grooming and being helped up when she fell. The plaintiff contended that he provided extensive help to his daughter until the subject collision occurred, and the inability to continue to do so has caused extensive emotional frustration and upset. The plaintiff introduced a day-in-the-life video. The plaintiff argued that the jury could well understand that in addition to the extensive pain and suffering attendant to his own injuries, the jury could well understand that the inability to continue provided help to his daughter deprived the plaintiff of extensive dignity. The plaintiff also maintained that because of the urinary incontinence, he must self catheterize every one to three hours. The plaintiff also contended that he must follow a bowel program that includes the use of laxatives and the requirement to digitally extract hard stools. The plaintiff required a number of surgeries because of pressure sores. The plaintiff further contended that because of overuse, he has suffered tendinitis and impingement syndrome to one shoulder and contended that the injuries are permanent in nature. The jury awarded $44,932,206, including $305,206 for past medical expenses, $2,550,000 for future medical costs and care-related expenses, $1,000,000 for future replacement care for disabled daughter, $77,000 for past lost earnings, $1,000,000 for future loss of earning ability, $13,500,000 for past pain and suffering and $26,500,000 for future pain and suffering. Plaintiff s economic expert: Bernard F. Pettingill, Jr. from Palm Beach Gardens, FL. Plaintiff s physical medine and rehabilitation expert: Craig H. Lichtblau, M.D. from North Palm Beach, FL. Plaintiff s vocational rehabilitation expert: Lawrence S. Forman, M.Ed, J.D. from Miami, FL. Aloia vs. Veilleux. Case no. 07ca15898, Attorneys for plaintiff: Bruce Scheiner and P.J. Scheiner of Bruce L. Scheiner & Associates, PA in Fort Myers, FL. Attorney for plaintiff: John F. Romano of Romano Law Group in Lake Worth, FL. COMMENTARY The jury rendered a particularly significant award for pain and suffering, and the plaintiff emphasized that in addition to the extensive pain and suffering that would be expected to accompany the paraplegia, the plaintiff has also lost the ability to continue providing the care required by his daughter, who previously sustained severe injuries. In this regard, the plaintiff argued that the jury should consider that beyond the paraplegia in and of itself, the plaintiff was also deprived of the important dignity that he derived from being able to help his daughter. Reproduction in any form without the express permission of the publisher is strictly prohibited by law. Volume 20, Issue 8, August 2010

3 SUMMARIES WITH TRIAL ANALYSIS 3 Founder IraJ.Zarin,Esq. Editor in Chief Jed M. Zarin ContributingEditors Brian M. Kessler, Esq. Laine Harmon, Esq. Cristina N. Hyde, Esq. Deborah McNally, Paralegal Ruth B. Neely, Paralegal Cathy Schlecter-Harvey, Esq. Julie L. Singer, Esq. Tammy A. Smith, Esq. Kate Turnbow Susan Jane Widder, Esq. Business Development Gary Zarin Production Coordinator Laura Hansen Assisted Search Tim Mathieson Court Data Coordinator Jeffrey S. Zarin Customer Services Meredith Whelan Circulation Manager Ellen Loren Proofreader Cathryn Peyton Web Development & Technology Juris Design PublishedbyJuryVerdictReview Publications, Inc. 45 Springfield Avenue, Springfield, NJ Main Office: 973/ Fax 973/ Circulation & Billing Department: 973/ Florida Jury Verdict Review & Analysis is a trademark of Jury Verdict Review Publications, Inc. Reproduction in any form with out the expresswritten permission of the publisher is strictly prohibited by law. Florida Jury Verdict Review & Analysis (ISSN ) is published monthly at the subscription rate of $345/year by Jury Verdict Review Publications, Inc., 45 Springfield Avenue, Springfield, NJ Periodical postage paid at Springfield, NJ and at additional mailing offices. Postmaster: Send address changes to: Florida Jury Verdict Review & Analysis, 45 Springfield Avenue, Springfield, NJ $6,000,500 VERDICT MOTOR VEHICLE NEGLIGENCE SINGLE VEHICLE COLLISION 16-YEAR-OLD DRIVER EXCEEDS SPEED LIMIT AND STRIKES TREE FRONT SEAT PASSENGER EJECTED FROM CAR WRONGFUL DEATH OF 16-YEAR-OLD GIRL DAMAGES ONLY $500 IN PUNITIVE DAMAGES. Palm Beach County, FL The 16-year-old female decedent was a front seat passenger in a vehicle driven by the 16-year-old male defendant when the car crashed into a tree resulting in the decedent s death. The plaintiff claimed that the defendant acted recklessly in driving on a rainslicked road at a speed in excess of 90 mph. The plaintiff parents sought punitive, as well as compensatory damages. The defendant stipulated to negligence and asked the jury to be reasonable in its damage award. Evidence showed that on November 5, 2003, the decedent and the defendant skipped their scheduled class at William T. Dwyer High School where they both attended and decided instead to go out to breakfast. The defendant was driving his brother s vehicle with the decedent as a front seat belted passenger. The plaintiff alleged that the defendant recklessly drove the vehicle at speeds in excess of 90 mph on wet roads in a 30 mph residential area in Palm Beach Gardens. The vehicle driven by the defendant struck a tree and broke in half down the center. The decedent was ejected from the car and sustained fatal injuries. She was the daughter of a Palm Beach County Sheriff s sergeant. The jury viewed photographs of the wreckage, as well as photographs, awards and records depicting the decedent s life. The defendant did not testify at trial. The defense argued that the young defendant was extremely sorry for his actions and that he will have to live with the knowledge of what he had done for the remainder of his life. The jury awarded the plaintiff mother $3 million in damages, the plaintiff father $3 million in damages and awarded $500 in punitive damages against the defendant. Kazanjian vs. Pozo. Case no CA-11347; Judge David French, Attorneys for plaintiff: Rebecca Lee Larson and Michael R. Santana of Babbitt, Johnson, Osborne & LeClainche in West Palm Beach, FL. Attorney for defendant: Edwin E. Mortell II of Peterson Bernard in Stuart, FL. COMMENTARY The vehicle driven by the defendant, and owned by the defendant s brother, carried only a $15,000 liability policy limit which was tendered immediately following the fatal collision. Unbeknownst to the jury, the 16-year-old defendant was tried and convicted of vehicular homicide and was sentenced to approximately five years in prison. Thus, the collectability of the verdict may be questionable. However, the large judgment against the defendant will serve as a lien on any property he may own for the rest of his life or may be collected through possible garnishment of future wages. Plaintiff s counsel reported that the case represented much-needed closure for the decedent s family, who attended the criminal trial against the defendant. In contrast to the criminal proceeding which centered on the defendant, this civil trial focused on the decedent, her life, her character, her dreams, her aspirations and the people who loved her and miss her. The case was difficult from a defensive standpoint and negligence was ultimately admitted shortly before trial. The defense counsel asked for reasonableness on the part of the jury and suggested a total of $500,000 as fair compensation for the surviving parents. The jury deliberated approximately 30 minutes before returning the damage award in excess of $6 million. Florida Jury Verdict Review & Analysis

4 4 SUMMARIES WITH TRIAL ANALYSIS $1,061,677 VERDICT MOTOR VEHICLE NEGLIGENCE HEAD-ON COLLISION SEVERE BRAIN INJURY WRONGFUL DEATH OF 19-YEAR-OLD MALE POST- TRAUMATIC STRESS SYNDROME TO SURVIVING PARENTS DAMAGES/CAUSATION ONLY. Marion County, FL A vehicle driven by the 19-year-old decedent was struck head-on by the defendant s vehicle, giving rise to this motor vehicle negligence/wrongful death action. The defendant stipulated to liability and the case was tried on the issue of damages only. The decedent s surviving parents both claimed post-traumatic stress syndrome as a result of their son s death. Evidence showed that the defendant s sedan crossed the center line of travel on State Route 40 in Ocala and collided with the decedent s truck, which was approaching from the opposite direction on June 2, There was no evidence as to what caused the defendanttoentertheoncomingtrafficlane. The decedent sustained a brain injury as a result of the accident and was maintained on life support systems for approximately five weeks. The decedent was subsequently confined to hospitals and nursing homes for about seven months after his discharge from the hospital. Testimony showed that the decedent had regained some primary brain functioning and was able to articulate some words. His mother testified that the decedent was able to say mom," and was able to count on a basic level. However, within several days of the decedent s discharge home, he was diagnosed with a brain infection related to the injury. He was readmitted to the hospital where he died a short time later. The decedent, while in nursing homes, had a profound neurological disability. The defense contended that he remained at or only slightly above a persistent vegetative state. The court permitted the plaintiff to play one minute of a video (edited from a much longer video) of the decedent uttering garbled sounds and loud moans as though he were in great pain. The video was taken a few days before the decedent s death. The plaintiff claimed $9,000 in funeral expenses and $153,000 in past medical expenses. The decedent s survivors, his mother and father, were both diagnosed with post-traumatic stress disorder as a result of their son s accident, injuries and ultimate death. The decedent was the youngest of four children and resided with his parents. The plaintiff s psychiatrist testified that it is particularly difficult for parents to deal with the loss of a child, as this is an unnatural sequence of events since most children outlive their parents. Both surviving parents claimed that they require ongoing psychiatric counseling as a result of their son s death. The defendant argued that the surviving parents had returned to their employment and were able to carry on normal day-to-day activities. The jury awarded the plaintiff $1,061,677 in damages. The award included $161,677 in past medical and funeral expenses; $250,000 to the decedent s father for past and future pain and suffering and $550,000 to his mother for past and future pain and suffering. Plaintiff s psychiatry expert: Domingo Cerra from Ocala, FL. Boyan vs. Marietta. Case no CAB; Judge Charles M. Harris, Attorneys for plaintiff: Alexander Clem and John W. Dill of Morgan & Morgan in Orlando, FL. Attorney for defendant: J. Scott Brasfield of Brasfield, Freeman, Goldis & Cash, P.A. in St. Petersburg, FL. COMMENTARY The jury in this case dealt solely with the monitory value which should be awarded to the plaintiff parents for the loss of their youngest son, age 19. It was unknown as to what caused the defendant to swerve into oncoming traffic and strike the decedent s vehicle head-on. Although the defense stipulated to negligence and the case was tried on damages only, the senselessness of the tragedy permeated the proceedings. The plaintiff father testified that he had an especially close relationship with the decedent, the decedent still lived at home with his parents and they enjoyed many shared hobbies such as hunting and fishing. The plaintiff father testified that he can no longer enjoy hunting and fishing because he is so saddened by the absence of his son with whom he had shared these activities in the past. The plaintiff father testified that he had plans with the decedent to open an auto mechanic business, another interest that they shared. Evidence established that the plaintiff father is still undergoing active psychological counseling and he testified that has had difficulty returning to work, difficulty in his marital relationship and resorts to alcohol to ease the heartbreak of his son s senseless death. Similarly, the plaintiff mother described a difficult emotional ordeal in dealing with the loss of her son. She testified that she cries daily at work and thinks of her loss every day. The defense, while sympathetic to the plaintiffs loss, stressed that both have returned to work and are able to continue all of their normal activities. The defendant asserted that the estrangement of the plaintiff parents, the difficulties in their relationship and the healing of the family was complicated by the father s significant alcohol abuse before and after his son s accident, as well as a lack of willingness on the part of the plaintiff father to want to recover. The plaintiffs last demand before trial was $2 million per surviving parent. Volume 20, Issue 8, August 2010

5 SUMMARIES WITH TRIAL ANALYSIS 5 $10,000,000 VERDICT NEGLIGENCE AND RECKLESS DISREGARD BY PARAMEDICS FAILURE TO CALL FOR AIR TRANSPORT FAILURE TO TAKE MOTHER IN LABOR TO CLOSEST HOSPITAL PREMATURE BIRTH IN AMBULANCE LACK OF OXYGEN TO NEWBORN CATASTROPHIC BRAIN INJURIES CEREBRAL PALSY. Volusia County, FL The plaintiffs in this case claimed that paramedics, employed by the defendant ambulance service, showed both negligence and reckless disregard in attempting to transport the plaintiffmotherinprematurelaborfromone hospital to another. The plaintiff claimed that the transport should not have been attempted given the mother s advancing labor, and if a transport was to be made that it should have been by air ambulance. The plaintiff claimed that the ambulance did not have adequate equipment to deal with a premature infant of this size, and when the baby was born in the back of the ambulance, he did not receive adequate oxygen and suffered brain damage which led to cerebral palsy. The defendant argued that the paramedics were following the instructions of a physician to take the plaintiff to Arnold Palmer Children s Hospital in Orlando which was best equipped to care for premature infants. The defendant also disputed that the child s cerebral palsy was causally related to its birth in the back of the ambulance. The plaintiff mother and her husband presented to Bert Fish Medical Center, which is located near their home in New Smyrna Beach, Florida. The plaintiff mother was approximately six months pregnant at the time of her presentation on September 20, Shortly after midnight, she was determined to be in premature labor by the emergency room physician at Bert Fish Medical Center and the defendant ambulance service was called. The emergency room physician instructed the defendant s paramedics to transport the plaintiff to Arnold Palmer Children s Hospital in Orlando, a drive of more than an hour from New Smyrna Beach. Records showed that the plaintiff was loaded into the defendant s ambulance at 12:57 a.m. Her water broke at 1:10 a.m. in route and the baby s foot was delivered. Testimony indicated that the paramedic called the physician at Bert Fish Medical Center, who instructed the ambulance personnel to continue to Arnold Palmer Children s Hospital in Orlando. The plaintiff claimed that the plaintiff mother should have been transported by air. The plaintiff argued that the written manual of the defendant ambulance service explicitly places the decision to call a helicopter for transport solely in the hands of the paramedics. When the plaintiff mother s water broke in the back of the ambulance, the plaintiff maintained that the defendant s paramedics should have taken the plaintiff to West Volusia Hospital, which was just minutes away. Instead, the ambulance continued towards Orlando. The paramedic delivered a baby boy in the back of the ambulance. The plaintiff argued that radio transmissions between the ambulance and Bert Fish Medical Center show that the paramedic failed to mention to the physician that the baby s foot was protruding from the birth canal. The plaintiff contended that the delivery was mismanaged, the baby was pulled with excessive force and morphine was inappropriately administered to the plaintiff mother approximately seven minutes before the delivery. The morphine resulted in a lower infant body temperature, according to the plaintiffs experts. The infant weighted 1.7 pounds and had immediate difficulty breathing, according to the plaintiff s claims. The plaintiff contended that the infant was not receiving sufficient oxygen for a period of approximately nine minutes. The paramedics performed CPR and made a decision to go to Central Florida Regional Hospital in Sanford. The baby was subsequently transferred to Arnold Palmer Children s Hospital by air where his temperature was recorded to be 92 degrees. The baby was diagnosed with cerebral palsy, which the plaintiffs claimed resulted from oxygen deprivation during his first minutes of life. The minor plaintiff, currently age six, made a brief appearance at trial and his impairments were demonstrated by his treating family physician. The minor plaintiff s speech is difficult to understand, he cannot feed himself and walks only with assistance and a walker. He attends a special school and the plaintiff s expertstestifiedthattheboywillneverbeabletoliveindependently. The plaintiff also introduced a Day in the Life video showing the child s normal everyday activities. The defendant argued that the paramedics were following the instructions of the doctor from Bert Fish Medical Center who believed that the care which would be required for the infant could only be provided at Arnold Palmer Children s Hospital in Orlando. The defendant s pathologist testified that evidence showed that the plaintiff mother suffered from chorioamnionitis, an inflammation of the fetal membranes (amnion and chorion) due to a bacterial infection. The infection caused damage to the fetus before it was born, according to defense experts. The defendant also maintained that the dosage of morphine administered to the plaintiff mother was too low to have caused a fetal temperature drop. The jury found the defendant ambulance service 100% negligent and also found that the defendant showed reckless disregard. The plaintiffs were awarded $10 million in damages. The award included $6.4 million in medical expenses; $2.6 million in pain and suffering to the minor plaintiff and $1 million to the plaintiff mother. Post-trial motions are pending. Chess vs. Emergency Medical Foundations, Inc. Case no ; Judge Robert K. Rouse, Jr., Florida Jury Verdict Review & Analysis

6 6 SUMMARIES WITH TRIAL ANALYSIS Attorneys for plaintiff: Robert W. Kelley and Todd R. Falzone of Kelley/Uustal in Fort Lauderdale, FL. Attorneys for defendant: Jeffrey M. Thompson and Lawrence H. Kolin of Alvarez, Sambol, Winthrop & Madison in Orlando, FL. COMMENTARY This medical malpractice trial explored an interesting issue regarding the relationship between the defendant s paramedic and a hospital physician. The defendant asserted that the paramedic was following the instructions of the (settling) physician and the paramedic did not feel that it was her position to second guess the doctor s decision. The physician, who the defense chose not to list as a Fabre defendant, came forward and testified that it was his responsibility to direct the transport of patients. However, the plaintiff countered with the argument that the doctor who gave the instruction to continue driving to a more distant hospital, was not aware of all of the facts (specifically that the baby s foot was visible), was not on the scene and was not in the best position to make a decision. In addition, plaintiff s counsel was able to stress that the paramedic violated the ambulance company s written policy which required paramedics to make an independent determination as to whether air transport should be called for or whether a pregnant female should be transported by ambulance. The case also involved application of the (1999) Florida Good Samaritan Act, Section (2) (b), Fla. Stat. which applies a reckless disregard standard in emergency situations. The court ruled that an ordinary negligence standard would apply to the defendant s actions before transport began, but the reckless disregard standard would apply to the medical emergency which occurred after the ground transport was initiated. The statutory definition of reckless disregard requires a showing that the health care provider knew or should have known at the time of his treatment that his conduct would likely cause injury or harm to the patient. The jury found that the defendant s paramedics were both negligent and showed reckless disregard. The case also featured a strong causation defense, based on the fact that the minor plaintiff was only 25 or 26 weeks of gestation at birth. The defense argued that the prematurity of the infant, as well as chorioamnionitis, would have resulted in birth defects even if he had been born in the most ideal conditions. The physician who directed the transport to Arnold Palmer Hospital settled the plaintiff s claims for his $1 million liability policy limit. In addition, two hospitals (the one from which the plaintiff was transported and one which rejected her) each settled for their $200,000 statutory liability cap. The defendant ambulance service s $5 million policy limit was demanded by the plaintiff before trial, setting up an excess verdict situation. The defendant has agreed to entry of judgment in the amount of $10 million which has been partially satisfied by its $5 million insurance policy limit. The plaintiff has stipulated to a delay in the execution of the remainder of the judgment while the defendant pursues a bad faith action against its insurance carrier. $1,674,000 VERDICT MEDICAL MALPRACTICE MORPHINE OVERDOSE AT VETERANS HOSPITAL FAILURE TO UTILIZE PULSE OXIMETER TO DETECT RESPIRATORY DEPRESSION HYPOXEMIA PERMANENT BRAIN INJURY. U.S. District Court, Southern District of Florida The plaintiff alleged that she has been left with debilitating permanent brain damage as a result of a morphine overdose suffered while at the defendant s veterans hospital in Miami. The plaintiff claimed that the defendant s employees were negligent in failing to take precautions to prevent the plaintiff s respiratory depression by means of early detection with pulse oximetry, thereby causing a prolonged period of oxygen deprivation. The defendant maintained that the plaintiff s treatment was within the standard of care and she was properly monitored, but suffered a sudden and unexpected respiratory depression. The plaintiff, 54, underwent reconstructive breast surgery performed on April 19, 2007 at the defendant medical center following a bout with cancer. Evidence showed that the plaintiff received 10 mg. of morphine intraoperatively during the surgery from 2:45 to 4:45 p.m. Following the surgery, she was transferred to the defendant s post-anesthesia care unit where an additional 16 mg. of morphine was ordered, in periodic 2 mg. doses for pain control via intravenous injection. She was also given a patient controlled analgesia pump which allowed a 1 mg. dosage of morphine every six minutes. Records showed that the plaintiff received 9 mg. of morphine through the patient controlled pump until the time of her arrival in her ward room at approximately 7:00 p.m. The plaintiff contended that a falling blood pressure level taken at 7:30 p.m. (despite the plaintiff s significant pain which should have increased her blood pressure) raised a red flag that closer monitoring was required. The plaintiff s anesthesiology expert testified that the plaintiff did not receive telemetry (transmission of vital signs to a monitoring room for constant observation) and she was not being appropriately assessed or monitored by the defendant s employees. The plaintiff s expert opined that this was especially necessary because the plaintiff was at an increased risk of developing respiratory depression. The plaintiff s experts testified that the defendant s healthcare providers deviated from the required standard of care by failing to use a pulse oximeter, which is the most sensitive and most reliable tool for instantly detecting and preventing respiratory depression in a patient on morphine. Volume 20, Issue 8, August 2010

7 SUMMARIES WITH TRIAL ANALYSIS 7 At approximately 8:15 p.m., the plaintiff was found by her husband alone in her room gasping for air, unresponsive, and in respiratory depression. Her oxygen saturation levels were tested at 75%. The plaintiff contended that a prolonged period of respiratory depression caused her to suffer hypoxemia and a resulted in a permanent mild to moderate brain injury. Due to her injuries, the plaintiff s experts testified that the plaintiff s brain injury makes her a danger to herself and others and she requires medical care, therapy and treatment. The plaintiff suffers significant lapses in judgment, memory and executive function and will never be able to properly care for herself or live independently, according to her physicians. The defendant argued that the plaintiff was properly monitored, including use of a baby alarm in her room which would detect any malfunction in her self-administered morphine pump. Nurses were ordered to assess and document the plaintiff s level of arousal and respiration rate hourly upon her arrival in the ward room, according to evidence offered. The nurses were also instructed to notify a doctor if the plaintiff s systolic blood pressure dropped below 90, her pulse rate below 60 or respiratory rate below 10. The defense contended that the plaintiff s vital signs were taken at 7:30 p.m. and her temperature was 97 degrees; she had a pulse rate of 77 and was breathing 20 times per minute at rest; her blood pressure was 101/ 59, with a pain score of 8 out of 10 and her pulse oximetry reading was 97%. The defendant s anesthesiology expert testified that the plaintiff was not a high risk for respiratory depression and the floor where she was appropriately placed was not equipped to provide constant oximetry for low-risk patients. This expert opined that, because the oximeters lacked telemetric capability, the defendant s nurses would need to check the machines in person every few minutes, which would be unrealistic. The case was tried as a bench trial. The court awarded the plaintiff and her husband a total of $1,674,242 in damages. The award included $924,242 for past and future medical care and $750,000 for past and future pain and suffering. Plaintiff s anesthesiology expert: Alexander Weingarten from Syosset, NY. Plaintiff s economic expert: David Williams from Miami, FL. Plaintiff s neurology expert: Ray Lopez from Miami, FL. Plaintiff s neuropsychology expert: Sally Kolitz- Russell from Miami, FL. Plaintiff s vocational rehabilitation expert: Ira Morris from Coral Springs, FL. Defendant s anesthesiology expert: Juan Restrepo from Miami, FL. Defendant s neuropsychology expert: David Loewenstein from Miami, FL. Atkisson vs. Miami Veterans Affairs Medical Center. Case no ; Judge William Hoeveler, Attorneys for plaintiff: Stuart N. Ratzan, G. Scott Vezina and Stuart J. Weissman of Ratzan & Rubio in Miami, FL. Attorney for defendant: Lawrence N. Rosen of U.S. Attorney s Office in Miami, FL. COMMENTARY This was a Federal Torts Claim action brought by a woman, who sustained a permanent brain injury, against the United States government representing the Miami Veterans Affairs Medical Center. Plaintiff s counsel, with the assistance of an expert anesthesiologist, performed extensive medical research and uncovered important medical literature which is believed to have been instrumental in the plaintiff s victory. The literature, known as the White Paper was issued in a Winter 2006/2007 Newsletter published by the Anesthesia Patient Safety Foundation, an arm of the American Society of Anesthesiology. The White Paper was received into evidence without objection and specifically addressed known safety concerns related to patient controlled analgesia in the post-operative period; the very type of morphine administration which was involved in this case. The document enabled plaintiff s counsel to persuasively argue that the conclusions and recommendations reached in that document, specifically the need for monitoring with pulse oximeter for patients who are self-administrating morphine, were not followed by the defendant. Another key to the substantial plaintiff s verdict may have been detailed use and examination of the metadata recorded by the defendant s computer system and produced through discovery. Metadata, also known as embedded data, is often described as data about data. It is a critical component of electronically stored documents. By examining the metadata and combining it with the testimony of one of the defendant s employees, plaintiff s counsel was able to prove that the defendant s nurse (in contradiction to her testimony) entered an after-the-fact nursing note the day after the plaintiff s incident of respiratory depression occurred. This evidence may have severely damaged the credibility of the nurse; as the court seemed more likely to accept the underlying metadata for computerized documents rather than the memory of the nurse regarding issues of timing or authenticity. Finally, plaintiff s counsel challenged the constitutionality of Florida statute which places limits on non-economic damages in medical malpractice cases. The court acknowledged that the plaintiff s non-economic damages at least met the statutory cap, but declined to rule the cap inapplicable. Florida Jury Verdict Review & Analysis

8 8 SUMMARIES WITH TRIAL ANALYSIS $1,400,000 VERDICT NEGLIGENT HIRING AND RETENTION DEFENDANT MOVING COMPANY S EMPLOYEE INTENTIONALLY LOCKS PLAINTIFF INDEPENDENT CONTRACTOR IN BACK OF MOVING VAN AND KEEPS HIM PRISONER FOR SEVERAL HOURS PLAINTIFF ULTIMATELY ESCAPES BY PUNCHING THROUGH BACK OF TRUCK, SUSTAINING SEVERE LACERATION TO NON-DOMINANT FOREARM PERMANENT PAIN AND LOSS OF MOTION PTSD PLAINTIFF CONTINUES TO WORK WITH DIFFICULTIES DAMAGES ONLY. Palm Beach County, FL The defendant corporation litigated the case through discovery, but did not appear at trial and a default judgment on liability was entered in this case. The plaintiff, in his mid 20s, an independent contractor, contended that although the defendant moving company permitted individuals to be present in the work area after hours, it negligently failed to supervise the area. The plaintiff contended that as a result, a worker locked him in back of the truck and after sometime, left him alone. The plaintiff maintained that after several hours, he extricated himself by punching his way out of the back of the truck. The plaintiff maintained that as he was squeezing himself out, he caught his left, non-dominant forearm on the jagged metal, suffering a severe laceration and tendon, muscle and nerve damage. The plaintiff also contended that he suffered PTSD that is causing anxiety, depression, nightmares and flashbacks of the event. The plaintiff related that when he returned to the premises after hours to retrieve some items, the other worker, with whom he did not get along, locked him in the back of the moving van. The plaintiff maintained that because he had only intended to be in the area momentarily, he had left his keys in his car. The plaintiff related that after locking him in the back of the van, the worker rode around the area in the plaintiff s car for some time, taunted him and then left the area, leaving him locked in. The plaintiff contended that after he was still locked in the back of the van for several hours, he created a small hole in the body by using bed frame and screw driver, and squeezed his way out, suffering the severe laceration as he did so. The evidence disclosed that the other employee was criminally charged in connection with the incident, fled and has not been apprehended. The plaintiff maintained that he sustained a severe laceration to his left, non-dominant arm and bled profusely at the scene. The plaintiff required surgery which included blood vessel repair and suturing of nerves. The plaintiff contended that he will permanently suffer severe pain and very substantial loss of the range of motion in the arm. The plaintiff related that he continues to work with pain and difficulty. The plaintiff further maintained that he suffered a severe PTSD and will permanently suffer anxiety, depression, nightmares and flashbacks of the event. The plaintiff argued that in view of the highly traumatic nature of the event, a long-term psychological injury was to be expected. The jury awarded $1,419,128. Plaintiff s pain management expert: Lisa Banchik, M.D. from Boca Raton, FL. McTigue vs. Wheelers Moving & Storage. Case no. 2008ca018365, Attorneys for plaintiff: Kenneth Metnick and Peter Dyson of Law Office of Metnick & Levy, PA in Delray Beach, FL. COMMENTARY Although the defendant corporation defended the case through discovery, it did not appear at trial and a default judgment on liability was granted. Although the case was tried on damages only, the jury was aware of the plaintiff s claims that the defendant moving company was negligent for failing to supervise the area, stressing that the evidence was relevant as to the reason the plaintiff was locked in for an extended period and suffered injury upon attempting to extricate himself. Additionally, even if the defendant had defended liability, the plaintiff would have argued that the name of the other worker, whose conduct was intentional in nature, should not be placed on the jury sheet. Regarding damages, the jury rendered a very substantial award, notwithstanding the fact that the plaintiff was able to return to work. It is felt that the highly traumatic nature of this event contributed to the strong jury response. Additionally, the plaintiff emphasized that he will suffer extensive pain and restriction of motion in the arm for the remainder of a very significant life expectancy. Volume 20, Issue 8, August 2010

9 9 $25,000 VERDICT Verdicts by Category PROFESSIONAL MALPRACTICE Dental Medical malpractice Dental negligence Negligent use of mini-implants Implants fail and require replacement by subsequent non-party dentist Verdict includes $14,500 for pain and suffering. Palm Beach County, FL The plaintiff, approximately 70, contended that the defendant dentist was negligent in opting to place mini-implants that are much smaller than standard size implants. The plaintiff maintained that the mini-implants are much more vulnerable to failure and that all five ultimately did fail. The plaintiff maintained that he was required to undergo replacements at a cost that exceeded $10,000 and that once the subsequent work was completed, the condition resolved. The jury found for the plaintiff and awarded $25,000, including $10,500 for dental bills and $14,500 for pain and suffering. Cryer vs. Baldwin, DDS. Case no. 2008ca010713, Attorney for plaintiff: James Randolph Quick of Quick Law Firm in Jupiter, FL. Hematology DEFENDANT S VERDICT Medical malpractice Hematology Alleged negligent administration of anticoagulants following knee-replacement surgery Intracranial bleed Wrongful death. Pinellas County, FL The decedent s estate claimed that the defendant hematologist was negligent in failing to halt the decedent s anticoagulants following surgery. As a result, the plaintiff alleged that the decedent suffered a massive intracranial hemorrhage which caused her death. The defendant argued that he used reasonable medical judgment in continuing the anticoagulants to minimize the risk of pulmonary embolism. The decedent was a female in her 70s when she underwent a total knee replacement. The plaintiff alleged that the defendant negligently ordered that the decedent to be continued on the blood-thinner Lovenox following the surgery and, in fact, increased the dosage. The plaintiff s hematology expert testified that the blood-thinner increased the decedent s risk of bleeding and caused a massive intracranial hemorrhage which resulted in her death. The defendant argued that he made a judgment call which weighed the risk of bleeding (with anticoagulants) against the risk of pulmonary embolism (without the anticoagulants). The defendant s medical expert opined that the defendant acted within the standard of care in prescribing the Lovenox. The jury found no negligence which was a legal cause of injury to the decedent. Plaintiff s hematology expert: George Rodgers from Salt Lake City, UT. Defendant s hematology expert: Morey Blinder from St. Louis, MO. Morales vs. Knipe. Case no CI-19; Judge Amy Williams, Attorney for defendant: Tyler E. Batteese of Josepher & Batteese in Tampa, FL. Florida Jury Verdict Review & Analysis

10 10 VERDICTS BY CATEGORY DEFENDANT S VERDICT Nursing Home Negligence Nursing home negligence Alleged failure to provide appropriate skin care Claimed failure to follow physician orders Severe heel ulcerations. Pinellas County, FL The estate of the elderly decedent brought this action against the defendant nursing home under Florida s Nursing Home Rights Statute. The plaintiff alleged that the defendant s employees failed to provide appropriate skin care and failed to follow physician orders, which resulted in severe heel ulcerations. The defendant maintained that the decedent received appropriate care and that his foot condition resulted from blisters sustained while gait training with physical therapy. The decedent was 88 years old when he entered the facility and turned 89 while residing there. He was at the facility for nine and a-half weeks and alleged that a delay in the delivery of a trapeze caused him to develop pressure ulcers to his heels. These pressure ulcers required debridement and were allegedly extremely painful. In addition, the defendant s nurses failed to document 33 doses of oxycodone (a narcotic pain medication) on the Medication Administration Records (MAR) which the plaintiff argued that the decedent did not receive. Thus, the plaintiff claimed that the decedent suffered from untreated pain throughout his residency. Evidence showed that a facility investigation found there were missing narcotics for another resident and that a nurse caring for the resident failed to document 24 doses of oxycodone on the MAR. During a drug screening, this nurse tested positive for cocaine and her employment terminated immediately. However, the nurse s positive test was not a result of the resident s prescribed medications, nor caused by the missing medication that prompted the testing. The plaintiff argued that, not only did the defendant nursing home cause the pressure ulcers to the decedent, but its employees also failed to treat his persistent pain because the nurses were diverting narcotics to support other drug habits. The defense argued that the decedent was alert and oriented so that, if he was not receiving his pain medications, he would let someone know he had pain. The defense showed in excess of 55 entries in the medical records for the nine and a-half week residency where it was documented that the decedent had no pain. Further, the defense maintained that the delay in receipt of a trapeze bar was not the cause of the decedent s heel wounds. Rather, the defendant contended that the heel wounds were blisters that resulted from gait training with physical therapy. The jury found no negligence or deprivation/infringement of the rights of the decedent which was a legal cause of injury. Clark vs. Seminole Properties. Case no , Attorneys for defendant: Peter J. Molinelli and Sheila K. Nicholson of Quintairos, Prieto, Wood & Boyer, P.A. in Tampa, FL. CIVIL ASSAULT $17,500 VERDICT Civil assault Plaintiff beaten and kicked in head and shoulder by brother Neck and shoulder injuries Shoulder surgery performed Facial scarring. Volusia County, FL This action pitted brother against brother after the plaintiff claimed that the defendant brother attacked him following a business dispute. The defendant brother maintained that he acted in self-defense. The plaintiff testified that he and the defendant brother were partners in a real estate development business and became involved in a dispute involving the business. The plaintiff testified that the defendant came to his office looking for documents and an argument ensued. The defendant left the building and went to his car. The plaintiff testified that he found the documents he had been looking for and went to the parking lot to tell his brother that he had located them. The plaintiff testified that he suggested that the brothers go back inside the office and discuss the matter. As the plaintiff turned around to walk back inside, he claimed that the defendant struck him in the back of the head with his fist. The plaintiff claimed that he was punched to the ground by the defendant and kicked three times in the head and shoulder while he was down. The plaintiff claimed injuries to his neck and shoulder which required shoulder surgery. The plaintiff also required in excess of 100 stitches to his face and has been left with permanent scars through his lip and to his forehead. Volume 20, Issue 8, August 2010

11 VERDICTS BY CATEGORY 11 The defendant contended that he tapped the brother in the back of the head because he wanted to show him what an asshole he was. But the plaintiff turned around swinging and the defendant was forced to fight in selfdefense, according to the defendant s version of the incident. The defendant also testified that the plaintiff fell to the ground and hurt his face. The jury found that the defendant committed battery upon the plaintiff. The plaintiff was awarded $17,500 in past medical expenses only. The jury declined to award damages to the plaintiff for pain and suffering. The plaintiff s motion for new trial on damages is pending. Schwarz vs. Schwarz. Case no ; Judge Robert K. Rouse, Attorney for plaintiff: Deborah J. Andrews in Ponte Vedra Beach, FL. Attorney for defendant: Sylvia A. Grunor of Sylvia A. Grunor, P.A. in Maitland, FL. DEFAMATION $790,000 VERDICT Defamation Unauthorized publication of likeness of model by internet escort service Damage to reputation Loss of income as model Defendants in default. Miami-Dade County, FL The plaintiff was a model who alleged, under Florida statute prohibiting unauthorized publication of likeness, that the defendant escort services posted a photograph of her on the internet without her consent. Three escort services were initially named in the complaint. One of the defendants settled the plaintiff s claims. The other two defendants were in default for failure to answer the complaint at the time of trial. The plaintiff testified that a cousin of her boyfriend at the time discovered her picture on an internet escort service and informed her boyfriend of the posting. The plaintiff established that she had posed for the photograph, which showed her in a distinctive position putting on make-up in front of a mirror, and she used the picture as part of her modeling portfolio. The internet advertisement falsely identified the plaintiff as one of the escorts available through the service, according to the plaintiff s claim. The plaintiff contended that the advertisement damaged her reputation as a professional model and caused a decline in her modeling income. The jury awarded the plaintiff $790,000 in damages. Collection efforts are currently in progress. DeSorbo vs. A Aaba Babson & Smith, Inc., et al. Case no CA01; Judge William Thomas, Attorney for plaintiff: Stephen A. Ostrow in Miami, FL. FRAUD $272,000 VERDICT Breach of fiduciary duty Long term financial exploitation, fraud, negligence, and negligent misrepresentation Financial adviser makes recommendations that cause the plaintiff to lose money and enrich the defendant via commissions. Palm County, FL In this breach of fiduciary duty case, the plaintiff, a 78-year-old widow, sued the defendant, her financial adviser, for long time financial exploitation, fraud, breach of fiduciary duty, negligence, and negligent misrepresentation. The plaintiff contended that the defendant entered into a series of transactions and gave her advice with regard to annuities sold to the plaintiff and her husband that caused the plaintiff significant loss of assets and unjustly enriched the defendant. Four weeks after the plaintiff s husband s death, the defendant counseled the plaintiff to liquidate her holdings and buy new annuities resulting in a $32,000 forfeiture or loss to the plaintiff and a $15,000 commission to the defendant. The defendant also advised the plaintiff to cancel her life insurance policy for $300,000 and instead by a $1 million policy that would have cost her much more in premiums. The plaintiff did not follow through on this transaction, but it was entered into evidence at trial to substantiate the type of advice the defendant was giving the plaintiff. Florida Jury Verdict Review & Analysis

12 12 VERDICTS BY CATEGORY At trial, the plaintiff called an expert in insurance and finance who testified as to the defendant s breach of duty, the plaintiff s financial losses, and the ramifications of the defendant s advice and recommendations. The plaintiff s expert also opined as to annuities and life insurance generally and when a prudent consumer should or should not invest in certain financial products. The plaintiff s expert testified as to the suitability of the products recommended by the defendant. The plaintiff s expert stated that the defendant breached the standard of care in his dealings with the plaintiff. The plaintiff also called a geriatric psychologist who testified as to the physical and emotional vulnerabilities of the plaintiff and the emotional ordeal involved in this cause of action. The plaintiff s expert testified that her infirmities and age factored into her ability to protect herself from exploitation. The defendant argued that all the recommendations he made were good and were in the plaintiff s best interests. The defendant put forth that his motivation was to help the plaintiff and that he did not do anything to harm her. The defendant denied any breach fiduciary duty. The defendant asserted that the annuities he suggested represented good choices for the plaintiff. He maintained that the life insurance he recommended was held by a good, strong company. The defendant admitted that the plaintiff lost some money, but argued that she made profits in other products as is the nature of investing. The defendant also contended that the plaintiff was a knowing decision maker in the process. The jury found for the plaintiff on all five counts and awarded damages of $272,000 broken down as follows: $32,000 in compensatory damages, $55,000 for emotional distress and $185,000 in punitive damages. Plaintiff s geriatric psychology expert: Dr. Richard Greer. Plaintiff s insurance and finance expert: David Nye, PhD from FL. Joyce Pogoda vs. Rafael Golan. Case no ca , Attorney for plaintiff: Christina M. Pierson of Hargrove Pierson & Brown, PA in FL. GOVERNMENT LIABILITY $575,000 RECOVERY Government liability Motor vehicle negligence by federal employee Rear end collision Cervical and lumbar disc herniations Cervical and lumbar fusion surgeries performed. Palm Beach County, FL The plaintiff asserted this claim against the United States of America, after his vehicle was struck from behind by an agent of the U.S. Drug Enforcement Administration. The defense disputed the injuries which the plaintiff claimed to have sustained as a result of the accident. The plaintiff was a 63-year-old man at the time of the rear end collision which occurred in 2008 in West Palm Beach. His physicians reported that the plaintiff sustained three disc herniations in his cervical spine, as well as a disc herniation in his lumbar spine as a result of the subject accident. The plaintiff underwent an anterior cervical decompression and fusion surgery at the C3-C4 level. He also underwent decompression and fusion of the lumbar spine at the L5-S1 level. The plaintiff contended that his accident-related injuries prevented him from standing for long periods of time and he was unable to return to his former employment as a meat cutter. The plaintiff alleged that he has been rendered totally disabled. The defendant contended that the plaintiff s cervical and lumbar conditions were preexisting and not causally related to the accident. The case was settled before suit was filed for a total of $575,000. Daley vs. United States of America Attorney for plaintiff: Brian D. Guralnick of Law Offices of Brian D. Guralnick in West Palm Beach, FL. Volume 20, Issue 8, August 2010

13 VERDICTS BY CATEGORY 13 $256,150 VERDICT INSURANCE OBLIGATION Insurance obligation Uninsured motorist claim Negligent lane change Aggravation of preexisting TMJ Surgery performed Damages/ causation only. Manatee County, FL There was no issue of liability in this uninsured motorist claim brought by the female plaintiff against State Farm Mutual Automobile Insurance Company. The defendant stipulated that the uninsured tortfeasor negligently changed lanes and struck the plaintiff s car in the side. The defendant denied that the plaintiff sustained a permanent injury as a result of the collision. The plaintiff was in her mid-40s at the time of the collision. Her oral/maxillofacial surgeon testified that the plaintiff s preexisting TMJ condition was aggravated as a result of the impact to the point that surgery became necessary. This expert testified that he had examined the plaintiff approximately a month before the collision and she did not require surgery at that time. However, after the impact, the plaintiff s condition was worsened and surgery was necessary, according to the plaintiff s expert. The defense argued that the plaintiff had suffered TMJ symptoms for many years and that the surgery resulted from a natural progression of her condition. The defendant s oral/maxillofacial surgeon opined that the plaintiff s TMJ condition was preexisting and was not significantly changed as a result of the collision. The defendant s expert testified that the plaintiff would have required TMJ surgery, regardless of the accident. The jury found that the plaintiff sustained a permanent injury as a result of the collision. The plaintiff was awarded $256,150 in damages, including $95,150 in economic damages and $161,000 in non-economic damages. The defendant has filed an appeal. The applicable uninsured motorist policy limit was $100,000, which was demanded by plaintiff s counsel, setting up an excess judgment situation and potential bad faith insurance claim. Plaintiff s oral/maxillofacial surgery expert: Robert Choung from St. Petersburg, FL. Defendant s oral/ maxillofacial surgery expert: Mark Mitchell from New Port Richey, FL. Lawrence vs. State Farm Mutual Automobile Insurance Company. Case no CA-3159; Judge Janette C. Dunnegin, Attorney for plaintiff: James L. Magazine of Lucas, Green & Magazine in New Port Richey, FL. $100,000 RECOVERY Insurance obligation Underinsured motorist claim Rear end collision Cervical disc herniation Chronic neck and back pain TMJ Depression Impotence Inability to continue employment as cement truck driver Damages/ causation only No permanent injury found High/low agreement. Pinellas County, FL The plaintiff was the operator of a cement truck which was struck from behind by the tortfeasor s vehicle. The tortfeasor tendered a $25,000 liability policy limit and the case continued as an underinsured motorist claim. The defendant insurance carrier stipulated to the tortfeasor s negligence in causing the impact, but denied that the plaintiff sustained a permanent injury as a result of the light impact. The plaintiff was a 46-year-old man at the time of the accident. He alleged a cervical disc herniation, spinal cord contusion, chronic neck and back pain, TMJ, impotence and depression stemming from the collision. The plaintiff was hospitalized three times within the month following the accident, for a total of some seven days. The plaintiff subsequently underwent a cervical fusion, which his neurosurgeon causally related to the impact. The plaintiff s vocational expert testified that the plaintiff was unable to return to his former employment as a truck driver and is limited to sedentary employment. This expert opined that the plaintiff faces a limited job market in light of his injuries, the need for significant pain medications and his lack of transferrable skills. The defendant argued that the impact to the back of the plaintiff s truck was minimal and the weight difference between the plaintiff s 65,000 pound cement truck and the defendant s 3,000 pound Subaru Legacy should be considered. The defendant s accident reconstruction expert and biomechanical experts opined that the force generated by the collision would not have caused the injuries alleged by the plaintiff. Evidence showed that, in the year before the accident, the plaintiff s medical records contained three reports of numbness and tingling into his fingers. The defendant s medical experts opined that the plaintiff s cervical condition was preexisting, degenerative and not causally re- Florida Jury Verdict Review & Analysis

14 14 VERDICTS BY CATEGORY lated to the collision. The defendant s neurosurgeon opined that the plaintiff would have been a surgical candidate regardless of the accident. The jury found that the plaintiff did not sustain a permanent injury as a result of the accident. The plaintiff was awarded $35,980 in past medical expenses and lost wages. A high/low agreement of $100,000/$2.5 million enabled the plaintiff to recover $100,000 and precludes post-trial motions or an appeal. Plaintiff s counsel requested $5.2 million in damages during closing statements. Gibbs vs. Travelers Property Casualty Insurance Company. Case no ; Judge Anthony Rondolino, Attorney for defendant: Charles E. McKeon in Tampa, FL. $16,502 VERDICT Insurance obligation UIM Rear end collision Cervical disc protrusion Claimed TMJ with surgical recommendation Damages/causation only No permanent injury found. Hillsborough County, FL There was no issue regarding negligence in this uninsured motorist claim, which stemmed from a rear end collision. The defendant, GEICO Indemnity Company, maintained that the plaintiff did not sustain a permanent injury as a result of the collision. The uninsured tortfeasor was also named as a defendant in the case, but was in default and was not represented at trial. The plaintiff was a 16-year-old female at the time her car was struck from behind by the tortfeasor s vehicle. The plaintiff was diagnosed with a cervical disc protrusion and TMJ which she claimed were both causally related to the accident. A surgical recommendation was made to treat the plaintiff s TMJ condition. The defendant s medical expert testified that any cervical injuries sustained by the plaintiff as a result of the accident were soft tissue in nature and had completely resolved. The defendant also called a TMJ specialist who opined that the plaintiff s TMJ condition was not acute and was not caused by the subject collision. The defense stressed that there was no evidence that the plaintiff sustained direct trauma to her jaw as a result of the accident. The defendant s biomechanical engineer testified that the forces caused by the subject impact were less than the forces generated to the jaw by chewing food and were not sufficient to cause TMJ. The jury found that the plaintiff did not sustain a permanent injury as a result of the accident. The plaintiff was awarded $16,502 in past medical expenses. A $10,000 PIP set-off applied for a net recovery of $6,502. The defendant insurance company had offered a $10,000 UM policy limit to settle the case prior to trial. McGovern vs. GEICO Indemnity Company. Case no CI Sec:013, Attorney for defendant: Ellen H. Ehrenpreis of Law Offices of James J. Pratt in Tampa, FL. DEFENDANT S VERDICT MOTOR VEHICLE NEGLIGENCE Auto/Motorcycle Collision Motor vehicle negligence Auto/motorcycle collision Alleged negligent pull out from drive way Multiple fractures to arms and legs Degloving injuries Multiple surgeries performed. Hillsborough County, FL This action involved a collision between a motorcycle ridden by the 54-year-old plaintiff and a car driven by the defendant driver. The plaintiff alleged that the defendant caused the impact by negligently pulling out of a driveway in front of the plaintiff s motorcycle. The defendant argued that he pulled out of the driveway and slowly changed lanes when his car was struck from behind by the plaintiff s motorcycle. The plaintiff testified that the defendant s vehicle suddenly pulled out of a driveway across three lanes of travel in front of his motorcycle and he was unable to avoid the impact. An eyewitness, who was driving behind the defendant, testified that the defendant pulled out of the driveway directly into the third travel lane. The plaintiff admitted to drinking alcohol earlier in the day, but testified he stopped drinking several hours before the accident, did not consume much alcohol and he was not intoxicated nor impaired at the time of the accident The plaintiff sustained multiple fractures to his arms and legs, as well as severe degloving injuries. He underwent a total of 12 surgeries, including multiple skin grafts and Volume 20, Issue 8, August 2010

15 VERDICTS BY CATEGORY 15 his physician testified that another surgery is indicated in the future. The plaintiff returned to his employment as a motorcycle mechanic following his surgeries. The defendant testified that he looked before pulling out of the driveway and saw that the road was clear. The defendant testified he pulled into the first lane, the second lane then the third lane after checking his mirrors and putting on his turn signal; but the plaintiff then struck his car in the rear. The defendant s toxicologist testified that the plaintiff s blood alcohol level was above a.08 and that the plaintiff was impaired at the time of the crash. Witnesses also testified that the plaintiff was driving his motorcycle at a high rate of speed and weaving in and out of travel lanes before the collision. The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff. Plaintiff s accident reconstruction expert: Kevin Breen from Fort Myers, FL. Plaintiff s economic expert: Cynthia Stephens from Tampa, FL. Plaintiff s orthopedic surgery expert: George J. Haidukewych from Orlando, FL. Defendant s accident reconstruction expert: Dennis Payne from Tampa, FL. Defendant s toxicology expert: Bruce Goldberger from Gainesville, FL. Levingston vs. Collar. Case no CA01666; Judge James M. Barton, Attorneys for defendant: Harold Saul and Sean-Kelly Xenakis of Kubicki Draper in Tampa, FL. Rear End Collision $504,000 NET VERDICT Motor vehicle negligence Rear end collision Disc herniation at L5-S1 with Grade Two slippage requiring fusion surgery. Palm Beach County, FL In this motor vehicle negligence case, the plaintiff, in his late 20s, contended that the defendant rearended him at a traffic light in an intersection. The plaintiff asserted that he was stopped at the light and the defendant failed to stop; thus, striking the rear of the vehicle. Just minutes prior, the defendant had been involved in another accident on the interstate. In photos of the defendant s van, the van s grill appears to be secured to the vehicle with rope, indicating more damage than claimed by the defendant. The defendant eventually admitted liability, but claimed that the impact was minimal and did not cause the plaintiff injury. As a result of the collision, the plaintiff suffered a disc herniation at L5-S1 resulting in a Grade two slippage. The plaintiff underwent fusion surgery and testified that he has ongoing difficulty doing certain normal life activities. At trial, the plaintiff presented an orthopedic specialist who testified as to the herniations and the slippage. The plaintiff also called a neurosurgeon who testified as to the plaintiff s treatment and the future need for medical care. Lastly the plaintiff relied on the expert testimony of a neuroradiologist who opined that the plaintiff s MRI film indicated that his injury was caused by the subject accident. The defendant initially denied liability, but at trial conceded that he did rear end the plaintiff but claimed that there was a minimal impact. The defendant argued that the plaintiff s injuries were not caused by the accident. The defendant presented a radiologist who testified that there were no herniations on the plaintiff s diagnostic tests and that nothing on his MRI films indicated traumatic injury. The defendant s expert opined that all the plaintiff s conditions were degenerative or genetic in nature. The defendant also called an orthopedist who testified that the plaintiff s injuries were not caused by the subject accident. The jury found in favor of the plaintiff and awarded damages of $500,000 plus costs of $19,000. The defendant filed remitter which was granted and the award was reduced by $15,000, for a net award of $504,000. Plaintiff s neuroradiology expert: Brian Young. Plaintiff s neurosurgeon expert: Charles Theofilos. Plaintiff s orthopedics expert: Merrill Reuter. Wilmer E. Santos vs. Ernesto Lopez & Davco Electrical. Case no. 2007CA000090; Judge Joseph Marx, Attorney for plaintiff: Edmund Gonzalez of Gonzalez & Henley, P.L. in West Palm Beach, FL. Florida Jury Verdict Review & Analysis

16 16 VERDICTS BY CATEGORY $400,000 VERDICT Motor vehicle negligence Rear end collision Plaintiff s vehicle struck from behind by defendant armored truck Shoulder, neck and back injuries Delay in diagnosis of knee injury results in four surgeries including full knee replacement. Palm County, FL In this motor vehicle negligence case, the plaintiff, a homemaker with an autistic son, contended that the defendant armored truck struck her vehicle from the rear at a traffic light in a right turn yield lane. The plaintiff s vehicle was pushed 20 to 30 feet into traffic. The defendant argued that the plaintiff caused the accident and challenged the plaintiff s damages. The plaintiff suffered from a variety of health issues as did her husband and son. On the day in question, the plaintiff was the front seat passenger as her husband was driving the vehicle and her autistic son was a backseat passenger. The plaintiff s vehicle was in a right turn yield lane waiting to enter into the flow of traffic when the defendant, driving an armored vehicle, failed to stop and struck the plaintiff s vehicle from the rear, pushing it into traffic. Within minutes, the defendant had investigators on the scene inspecting the situation. There was extremely minor damage to the defendant s truck and more significant damage to the plaintiff s vehicle. The plaintiff suffered injury to her left knee requiring surgery. The plaintiff complained of a terrible headache at the scene of the accident. When the plaintiff presented to the emergency room approximately six hours later, she only complained of pain in her head and back. She did not report any knee pain. The next day an insurance adjuster interviewed the plaintiff and she reported shoulder, neck, and back injury, but still made no mention of knee pain. Again, when seeing her primary care physician, she did not mention her knee. Approximately a week after the accident, the plaintiff s father died and her family noticed she was having trouble walking and she realized she was having problems with her knee. The plaintiff s orthopedic surgeon was on vacation and, due to her father s death and dealing with family issues, there was a 35 day delay in diagnosis of the plaintiff s knee injury. When the plaintiff finally saw an orthopedist, the first thing she reported was a problem with her knee. The plaintiff contended that she reported immediately at the scene that she had a burning sensation in her knee, but was more concerned about her other injuries, especially due to the headaches she was experiencing. The plaintiff was finally diagnosed with a torn meniscus. She developed rapid deterioration of the joint space in her knee to the point that she was experiencing boneon-bone contact. The plaintiff ultimately underwent four knee surgeries, culminating in a total knee replacement. Further, the plaintiff had a bad result wherein a suture did not dissolve and she had to have a follow-up surgery. After the first surgery, the plaintiff had secured a job with the school board, but ultimately was unable to continue due to ongoing issues with the knee. At trial, the plaintiff called an accident reconstruction expert who opined that based on the positioning of the vehicles, and the point of impact, indications were that the defendant rear-ended the plaintiff. The plaintiff also called her treating physicians as to her injuries, treatment and permanency of her condition. The defendant argued that the plaintiff backed up into the defendant s vehicle. The defendant asserted that the plaintiff s vehicle was protruding into traffic and she had to back up to get out of the flow of traffic whereupon she struck the defendant s vehicle. Further, the defendant challenged causation of the plaintiff s knee injury, contending that the plaintiff s morbid obesity, rather than the subject accident, caused her knee problems. At trial, the defendant called an orthopedic surgeon who testified that the plaintiff was obese and that her weight was the proximate cause of her knee injury. The defendant also called a radiologist who testified that the plaintiff had extensive degenerative damage to the knee that could not have been caused by the subject accident. The defendant called an accident reconstruction expert who testified that he could not determine if the plaintiff was rear-ended or backed up into the defendant s vehicle. Lastly, the defendant presented a biomechanical engineering expert who opined that the plaintiff could not possibly have hurt her knee due to the type of collision and the forces involved. The defendant s expert asserted that the vehicles did not move after the collision. The jury found the defendant negligent and awarded the plaintiff $400,000 in damages. Plaintiff s accident reconstruction expert: Martin Garcia from Tallahassee, FL. Janice Guttilla vs. Loomis Armored US. Case no. 2007ca001645, Attorney for plaintiff: Michael Overbeck of The Law Office of Michael Overbeck in FL. Volume 20, Issue 8, August 2010

17 VERDICTS BY CATEGORY 17 $90,896 VERDICT Motor vehicle negligence Rear end collision Herniated cervical and lumbar discs Shoulder impingement with surgery Damages/causation only. Pinellas County, FL The plaintiff claimed that a vehicle, driven by the defendant driver and owned by the defendant owner (the defendant driver s mother), negligently struck her car from behind while she was stopped at a Pinellas County intersection. The defendant stipulated to negligence on the first day of trial, but disputed the injuries which the plaintiff claimed as a result of the collision. The plaintiff was a 41-year-old female at the time of the rear end impact. Her orthopedic surgeons testified that the plaintiff sustained herniations to her cervical and lumbar spine and a left shoulder impingement as a result of the collision. The plaintiff underwent arthroscopic shoulder surgery to treat the impingement. The plaintiff s biomechanical engineer testified that the forces generated by the rear end collision were sufficient to have caused the injuries alleged by the plaintiff. The defense contended that the impact to the back of the plaintiff s car was light and caused no visible damage to the plaintiff s vehicle. Testimony indicated that the front bumper of the defendant s vehicle was damaged and that the rear bumper of the plaintiff s car was pushed in by the impact, but was manually pulled out before photographs were taken. The defendant claimed that the plaintiff s neck, back and shoulder conditions were degenerative and preexisted the date of the collision. Evidence showed that the plaintiff had complained of shoulder pain approximately a year before the accident. She had also voiced prior lumbar complaints approximately five years before the collision. The jury found that the plaintiff sustained a permanent injury as a result of the accident and awarded her $90,896 in damages, including $5,000 in past pain and suffering and $15,000 in future pain and suffering. The plaintiff has filed a motion for costs and attorney fees based on proposals for settlement in the amount of $60,000 to the defendant driver and $35,000 to the defendant owner. Plaintiff s biomechanical engineering expert: Larry Horvath from Largo, FL. Plaintiff s orthopedic surgery experts: Stephen Marabello from New Port Richey, FL and Theodore P. Vlahos from Palm Harbor, FL. Defendant s radiology expert: Michael Foley from Tampa, FL. DiPietro vs. Luebking. Case no ; Judge John A. Schaefer, Attorney for plaintiff: Scott P. Swope of Swope & Bright in Clearwater, FL. $4,000 VERDICT Motor vehicle negligence Rear end collision Lumbar disc herniation Aggravation of preexisting disc degeneration Damages/ causation only. Miami-Dade County, FL The plaintiff was a 21-year-old female when her vehicle was struck from behind by the defendant s vehicle. The defendant stipulated to negligence in causing the accident, but argued that the impact was light and did not cause the injuries alleged by the plaintiff. The plaintiff s orthopedic surgeon testified that the plaintiff suffered a posterior lumbar disc herniation, as well as an aggravation of a preexisting degenerative condition in her lumbar spine as a result of the impact. The plaintiff s orthopedic surgeon opined that the plaintiff will require lumbar surgery in the future. The plaintiff claimed that her accident-related back injuries prevented her from pursuing a career in professional soccer. She sought damages for future loss of income as a professional soccer player. The defendant argued that the impact to the back of the plaintiff s car was light and caused minimal property damage. The defendant s orthopedic surgeon testified that there was no clinical evidence that the plaintiff sustained an injury as a result of the subject collision. The defense also contended that the plaintiff chose to have a baby and therefore, was unable to pursue a career as a professional soccer player. The jury found that the plaintiff sustained a permanent injury as a result of the accident and awarded her $4,000 in damages. The award included $1,800 in past and future pain and suffering. The plaintiff has filed motions for new trial and additur. The defendant has filed a motion to set-off collateral sources from the damage award. Wizel vs. McKinney. Case no CA 13; Judge Pedro Echarte, Jr., Attorneys for plaintiff: Stephen H. Johnson and Joan Carlos Wizel of Lydecker Diaz in Miami, FL. Attorney for defendant: Harlan M. Gladstein of Law Offices of Mark M. Carroll in Plantation, FL. Florida Jury Verdict Review & Analysis

18 18 VERDICTS BY CATEGORY DEFENDANT S VERDICT MUNICIPAL LIABILITY Municipal liability Prison negligence Alleged lack of appropriate medical care for inmate Claimed failure to adequately diagnose and treat neck injury Cervical fusion required. U.S. District Court, Southern District of Florida This case was brought by a prison inmate, against a number of correctional facilities and health care providers, alleging a violation of the plaintiff s Eighth Amendment right to be free of cruel and unusual punishments. The plaintiff alleged that he received inadequate medical care in the defendants jail system, resulting in years of pain and suffering. All defendants, with the exception of a physician and a nurse involved in the plaintiff s care, were dismissed from the case prior to trial. The defendants denied the plaintiff s allegations. The plaintiff alleged that his neck was injured when he was assaulted by a Broward County deputy in jail in August of He was seen by a neurologist in the prison system in 1999 and no additional follow-ups were recommended. The plaintiff was given a life sentence for murder and armed robbery. He was treated by the defendant physician at South Bay Correctional Facility, a state prison, in The defendant ordered X-rays and referred the plaintiff to an orthopedic surgeon and then a neurosurgeon. The neurosurgeon recommended the performance of a CT-scan and cervical myelogram. The plaintiff claimed that the defendant physician failed to follow the neurosurgeon s recommendation for the plaintiff to undergo a CT-scan and cervical myelogram. The plaintiff testified that the defendant nurse told him that there was no money in the budget to perform diagnostic tests for inmates. The plaintiff subsequently underwent these tests after the defendant physician had left the facility and it was determined that he suffered from herniated cervical discs. The plaintiff argued that an earlier diagnosis would have avoided the severe pain that the plaintiff suffered for approximately four years before his cervical condition was diagnosed and fusion surgery was performed. The physician who treated the plaintiff in jail testified that he made a determination to conservatively treat and monitor the plaintiff s condition. The defense argued that the plaintiff made no further neck complaints for a period of some 16 months, leading the physician to believe that the neck injury had resolved. The defense denied that the plaintiff was told that budgetary cuts eliminated diagnostic tests for inmates. The jury found deliberate indifference to a serious medical need on the part of the defendant physician (the standard required under the Eighth Amendment), but found that his actions were not a legal cause of injury to the plaintiff. The jury determined that the defendant nurse was not deliberately indifferent to a serious medical need and a defense verdict was entered. The case is currently on appeal. Plaintiff s neurosurgery expert: George Ibars from South Miami, FL. Defendant s neurosurgery expert: Jordan Grabel from West Palm Beach, FL. German vs. Broward County Sheriff s Office, et al. Case no. 0:05-CV-61798; Judge William Dimitrouleas, Attorney for defendant: Brett M. Waronicki of Wiederhold & Moses in West Palm Beach, FL. $140,229 GROSS VERDICT PREMISES LIABILITY Fall Down Premises liability Slip and fall on rain water in liquor store Failure to warn Wrist fracture with three surgeries 65% comparative negligence found. Pinellas County, FL The plaintiff alleged that the defendant liquor store allowed rain water to be tracked into its store and failed to warn of the slippery condition, causing the plaintiff to slip and fall. The defendant argued that the plaintiff was aware that it was raining and that the floor was slippery and was comparatively negligent. The plaintiff was a female in her mid-30s at the time of the fall. She contended that the defendant allowed rainwater to puddle at the entrance to its liquor store and failed to place warning cones, despite the store s policytodoso. The plaintiff sustained a fracture of the ulnar and distal radius of her dominant right wrist as a result of the fall. She underwent three surgeries and her physician recommended a fourth surgery in the future. Volume 20, Issue 8, August 2010

19 VERDICTS BY CATEGORY 19 The plaintiff admitted smoking marijuana at 7:00 a.m. before the 5:00 p.m. fall. She also admitted drinking three beers in the four-hour period before the fall. The defense contended that the condition of the floor was open and obvious and that the plaintiff was in an impaired condition at the time of the fall. The plaintiff called a toxicologist who opined that the plaintiff would not have experienced any impairment of her coordination or perception at the time in question. The plaintiff also argued that there were no indications of intoxication in the emergency medical service or hospital records. The jury awarded a $140,229 gross verdict, finding the defendant 35% negligent and the plaintiff 65% comparatively negligent. The plaintiff filed a motion for new trial, arguing that the admission of the plaintiff s use of marijuana was unduly prejudicial and should not have been admitted into evidence. Osmulski vs. Oldsmar Fine Wine, Inc. Case no ; Judge Pamela Campbell, Attorney for plaintiff: Justin W. Pimenta of Abrahamson & Uiterwyk in Tampa, FL. Attorney for defendant: Michael G. Archibal of Marshall, Dennehey, Warner, Coleman & Goggin in Tampa, FL. DEFENDANT S VERDICT Premises liability Slip and fall in rainwater - Alleged negligent maintenance of supermarket floors Claimed lumbar disc herniations Percutaneous discectomy performed. Broward County, FL This was a premises liability action brought against the defendant, Publix Supermarkets, Inc., after the plaintiff slipped and fell in its store. The plaintiff claimed that the defendant negligently maintained its floors, causing her fall on water which came into the store on a motorized cart. The defendant denied that the water entered the store on a motorized cart and argued that its maintenance was reasonable and that the water came from an umbrella just seconds before the plaintiff s fall. The plaintiff was a 63-year-old retired female at the time of the fall. She alleged that the defendant s employee brought a wet motorized cart in out of the rain and allowed water to drip onto the floor, causing her fall. The plaintiff s physician testified that the plaintiff sustained two herniated discs in her lumbar spine as a result of the fall. The plaintiff underwent a percutaneous lumbar discectomy approximately nine months after the fall. The defendant s employee testified that he saw a customer walk past the area with an umbrella and, seconds later, the plaintiff fell. The defendant argued that it had no opportunity to clean the water from the floor before the plaintiff s fall. The defendant s medical expert opined that the plaintiff s lumbar condition preexisted the date of the fall, was degenerative and was not causally related to the fall. The jury found no negligence on the part of the defendant which was a legal cause of injury to the plaintiff. The plaintiff s post-trial motion for new trial is pending. Bongiorno vs. Publix Supermarkets, Inc. Case no ; Judge David Krathen, Attorneys for defendant: Andrew S. Connell, Jr. and Mark A. Sodhi of Quintairos, Prieto, Wood & Boyer, P.A. in Fort Lauderdale, FL. SALON NEGLIGENCE $15,000 VERDICT Salon negligence Use of inappropriate hot wax on genital area Tears of inner and outer labia Sutures required. Seminole County, FL The plaintiff went to the defendant s salon for a bikini wax to surprise her husband on their 15th wedding anniversary. Instead, she ended up with labia tears that required her to abstain from sex for a period of six weeks. The plaintiff claimed that the defendant s employee used an inappropriate hot wax which caused her injuries. The defendant argued that the wax used was appropriate for the Brazilian wax procedure performed. The defendant also argued that the plaintiff had made a good recovery from the injury with no permanent damage. The plaintiff testified that she went to the defendant s salon in Altamonte Springs for a requested bikini wax. However, the wax used caused tears of the inner and outer labia which required an emergency room visit and stitches of the labia. The plaintiff claimed that she was Florida Jury Verdict Review & Analysis

20 20 VERDICTS BY CATEGORY unable to have sexual intercourse for six weeks and has been left with permanent scarring of the labia. The plaintiff contended that the label on the wax used by the defendant specifically warned that it was not to be used on the genital area. The jury awarded the plaintiff $15,000 in past pain and suffering. The jury declined to award damages to the plaintiff for future pain and suffering or to her husband for his loss of consortium claim. Attorney for plaintiff: William E. Ruffier of Dellecker, Wilson, King, McKenna & Ruffier, L.L.P. in Orlando, FL. Attorney for defendant: Allen C. Sang of Carman, Beauchamp & Sang in Winter Park, FL. Simmons vs. Moriah Brandon s, Inc. Case no. 08-CA ; Judge Alan Dickey, $90,000 VERDICT WRONGFUL TERMINATION Wrongful termination Plaintiff computer technician allegedly terminated from position with sheriff s office because of pregnancy. U.S. District - Middle District Tampa Division The plaintiff computer technician brought this action under Title VII of the 1964 Civil Rights Act and the Florida Civil Rights Statute, contending that she was improperly terminated from her position because of her pregnancy. The defendant denied that the plaintiff s claims should be accepted. The defendant contended that the plaintiff was a contract worker, that the defendant decided to replace her with a full time employee and that the pregnancy was unrelated to the employment decision. The plaintiff denied that she should be considered a contract employee and that irrespective of this issue, theemployeetowhichthedefendantwasreferringwas hired some four months before the plaintiff was terminated, arguing that the defendant s alleged justification was clearly pretextual in nature. The plaintiff also maintained that she was told by one of her superiors that the pregnancy was the reason for the termination. The defendant denied that this position should be accepted. The jury found for the plaintiff and awarded $80,000 for back pay and $10,000 for emotional distress. Holland vs. David A. Gee, in his official capacity as Sheriff of Hillsborough County. Case no. 8:08-cv VMC- AEP (M.D. Fl); Judge Virginia M. Hernandez Covington, Attorneys for plaintiff: Ryan Barack and Michelle Nadeau of Kwall, Showers & Barack, P.A. in Clearwater, FL. Volume 20, Issue 8, August 2010

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