SUMMARIES WITH TRIAL ANALYSIS

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1 SUMMARIES WITH TRIAL ANALYSIS Volume 27, Issue 6 June 2012 A monthly Nationwide review of State and Federal civil jury verdicts with professional analysis and commentary. The cases summarized in detail herein are obtained from an ongoing monthly survey of the State and Federal civil courts throughout the United States. $40,800,000 RECOVERY Motor Vehicle Negligence Tractor pulling triple tractors collides with plaintiffs vehicle in construction zone Wrongful death of 47-year-old Multiple injuries to minor passengers...2 $7,500,000 VERDICT Motor Vehicle Negligence Van/Auto Collision Sailor suffers permanent nerve damage after his motorcycle collides with van Broken penis Smashed testicles Permanent nerve damage...3 $22,500,000 VERDICT Railroad Negligence Plaintiffs are in their vehicle at railroad crossing when train derails, catches fire and explodes Second and third degree burns to face, neck, arms and chest Wrongful death... 4 $14,162,145 AWARD Sexual Assault Battery Gross negligence Intentional infliction of emotional distress Plaintiff alleges repeated acts of sexual abuse and molestation against former step-father...5 $12,000,000 VERDICT Defamation Former patient creates website defaming plaintiff surgeons Impairment of reputation and standing in the community Mental anguish Emotional distress...6 $5,000,000 RECOVERY Construction Site Negligence Plaintiff worker trips and falls through nonweight bearing skylight at the defendant s warehouse 40 ft. fall to concrete floor Spinal cord injuries....7 $3,500,000 RECOVERY Bus Negligence Commercial bus strikes pedestrian family crossing intersection. 8 $1,225,000 VERDICT Intellectual Property Lanham Act Intentional infringement of plaintiff s trade dress product Significant financial loss and injunctive relief...9 $1,000,000 RECOVERY Admiralty Use of highly flammable liquid in conjunction with power tools causes explosion Aggravation of previously asymptomatic Arnold-Chiari I malformation...10 $494,150 RECOVERY Employer s Liability Retaliation L.A. firefighter files EEOC complaint after harassment on job for lawsuit against Catholic Archdiocese Civil rights violation...11 VERDICTS BY CATEGORY Professional Malpractice (9) Cardiology Gastroenterology Psychiatry Radiology Surgery Product Liability (4) Asbestos Defective Design Motor Vehicle Negligence (10) Auto/Bicycle Collision Auto/Truck Collision Intersection Collision Multiple Vehicle Collision Rear End Collision Sideswipe Collision Premises Liability (6) Fall Down Hazardous Premises Additional Verdicts of Interest (11) Civil Rights Contract Dram Shop Employer s Liability Municipal Liability Police Liability Racial Discrimination Sexual Harassment Wrongful Termination Copyright 2012 Jury Verdict Review Publications Inc.

2 2 Summaries with Trial Analysis $40,800,000 RECOVERY FOLLOWING MEDIATION MOTOR VEHICLE NEGLIGENCE TRACTOR PULLING TRIPLE TRACTORS COLLIDES WITH PLAINTIFFS VEHICLE IN CONSTRUCTION ZONE WRONGFUL DEATH OF 47-YEAR-OLD TBI TO MINOR PASSENGER MULTIPLE FRACTURES INCLUDING PELVIS AND FACE IN SECOND MINOR. Jackson County, Missouri In this motor vehicle negligence action, the plaintiff alleged that the defendants were negligent in causing a collision that killed the decedent mother driver and seriously injured the two minor passengers. The defendants denied the allegations and disputed the nature and extent of the plaintiffs alleged damages. On the date of the incident the female decedent, mother of the two minor plaintiffs, was operating her vehicle on the Ohio Turnpike. The minor plaintiffs, ages 12 and 15 were also passengers in the vehicle at the time of the collision. The defendant driver was operating a tractor pulling triple trailers all carrying loads. The vehicles were traveling in a construction zone where the roadway narrowed. The defendant s truck and trailers collided into the rear of the decedent s vehicle. As a result of the collision, the mother driver died at the scene. The 15-year-old minor plaintiff sustained a traumatic brain injury and was taken from the scene of the collision by LifeFlight. The other minor, the 12- year-old son, sustained multiple fractures including a broken pelvis and multiple facial fractures. The plaintiffs brought suit against the defendant driver and the trucking company alleging negligence. The defendants denied the allegations and disputed the nature and extent of the plaintiffs injuries and damages. The parties engaged in extensive informal discovery and participated in two mediation sessions. The parties agreed to a settlement of all the plaintiffs claims for the total sum of $40,800,000 during the second mediation. Plaintiff s economist expert: Edward Bell, Ph.D. from Cleveland, OH. Plaintiff s economist expert: Lane Hudgins, Ph.D. from Murphysboro, IL. Plaintiff s life care planner expert: Gary Yarkony, M.D. from Lake Forest, IL. Matthew Slattery, Peter Slattery and Edward Slattery individually and as Personal Representatives of the Estate of Susan Slattery vs. Estes Express Lines, Inc. and Douglas Bouch. Case no CV-13913; Judge Justine Del Muro. Attorneys for plaintiff: Jeff Burns and Tim Dollar of Dollar Burns & Becker in Kansas City, MO. COMMENTARY The 15-year-old minor plaintiff developed complications following his pelvic fracture. He required an aggressive treatment with anticoagulants to prevent a possibly fatal blood clot. He also suffers from the emotional scarring of watching his mother die at the scene of the collision. He has physically recuperated from most of his injuries, although he still experiences some residuals from his injuries. The 12-year-old was coma-like for approximately one month and could only move his one little finger. The plaintiff s attorney invited the defendants to come and visit the child in the hospital. It was following that meeting that the defendant requested that the plaintiffs not file suit, but rather agree to mediate the claims. While the defendants never outright admitted liability for the collision and the resulting injuries, due to the fact that no litigation was filed, it never became necessary to make the allegations in a formal complaint. The 12-year-old who suffered the traumatic brain injury is confined to an electric wheelchair. He is able to take a few steps but cannot ambulate on his own. He also suffers from aphasia and his speech is therefore limited to a great extent. The child is back at school presently taking some classes, but he can only perform simple mathematical problems. He also suffers from a lack of dexterity in his right hand and has to write with his left hand. During the parties first mediation, a partial high/low agreement was reached. While the parties were awaiting approval of that agreement, they engaged in the second mediation session, at which time the final settlement of the claims of the plaintiffs was reached. Reproduction in any form without the express permission of the publisher is strictly prohibited by law. Volume 27, Issue 6, June 2012

3 SUMMARIES WITH TRIAL ANALYSIS 3 Founder IraJ.Zarin,Esq. Editor in Chief Jed M. Zarin Contributing Editors Brian M. Kessler, Esq. Laine Harmon, Esq. Cristina N. Hyde Deborah McNally, Paralegal Ruth B. Neely, Paralegal Cathy Schlecter-Harvey, Esq. Julie L. Singer, Esq. Tammy A. Smith, Esq. Kate Turnbow Susan Winkler Michael Bagen Business Development Gary Zarin Production Coordinator Christianne C. Mariano 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 Published by Jury Verdict Review Publications, Inc. 45 Springfield Avenue, Springfield, NJ Main Office: 973/ Fax 973/ Circulation & Billing Department: 973/ National 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. National 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: National Jury Verdict Review & Analysis, 45 Springfield Avenue, Springfield, NJ $7,500,000 VERDICT MOTOR VEHICLE NEGLIGENCE VAN/AUTO COLLISION SAILOR SUFFERS PERMANENT NERVE DAMAGE AFTER HIS MOTORCYCLE COLLIDES WITH VAN BROKEN PENIS SMASHED TESTICLES PERMANENT NERVE DAMAGE. San Diego County, California In this matter, a sailor sued after he collided on his motorcycle with ashuttlevanonacaliforniaroad.hebroughtsuitagainstthe defendant driver, the employer and owner of the van, and a related company. The defendants denied liability for the incident, insisting that the plaintiff s negligent speeding was to blame. The plaintiff was an active-duty sailor in the United States Navy when he was driving his Harley Davidson motorcycle to work at the submarine base in San Diego. The defendant was driving a shuttle van on that road when the two met an intersection. The shuttle van turned left in front of the plaintiff, causing him to strike the side of the van. The plaintiff was thrown forward, striking his groin on the handlebars. The plaintiff sustained a broken pelvis and smashed testicles, and suffered permanent nerve damage to his pelvic region. He later underwent a penile artery angiogram and bypass. The plaintiff accrued over $43,000 in medical bills and lost approximately $10,000 in wages. The plaintiff and his wife filed suit in the Superior Court of California s San Diego County East Division for motor vehicle negligence resulting in personal injury. The plaintiffs named as defendants, the driver, the owner of the vehicle Rancho Auto Group, and the company Group One Automotive (GPI-SD). The plaintiff sought recovery for lost wages, medical expenses, as well as pain and suffering damages. The plaintiffs made a 998 statutory offer for compensation for $1 million, but no offer was given by the defense. At trial, the driver and auto group both accused the plaintiff of having sped around the corner without looking, thereby precipitating the collision. Group 1 also attempted to argue that the defendant driver was not their employee. However, the plaintiff showed that the driver was later fired for a reason unrelated to the collision and that the letter informing him of his termination had come from Group 1. Ergo, they argued, he had been their employee at the time of the collision. Regarding damages, the defendants argued that the damages to the plaintiff were overstated and had since been corrected medically. The plaintiff brought Dr. Irwin Goldstein, who testified as an expert on sexual medicine, and who had also performed the bypass surgery. Dr. Goldstein testified that the plaintiff had permanent nerve damage to his pelvic region. The defendants brought no medical expert. After a two week trial, the jury returned a verdict for the plaintiffs, finding the three defendants liable joint and separately for the actions of the driver. The jury awarded the plaintiff $53,000 for his medical damages and lost wages, as well as $7.5 million for pain and suffering ($2 million past and $5.5 million future). Plaintiff s Accident Reconstruction expert: David Casteel from El Cajon, CA. Plaintiff s Sexual Medicine expert: Irwin Goldstein from San Diego, CA. Defendant s Accident Reconstruction expert: Joseph Awad from San Diego, CA. Wall vs. Miramontes. Case no CU-PA-EC; Judge Joel R. Wohlfeil, National Jury Verdict Review & Analysis

4 4 SUMMARIES WITH TRIAL ANALYSIS Attorneys for plaintiff: Kimberly Barrows and Howard Kitay of Kitay Law Firm in El Cajon, CA. Attorney for defendant: Stanley Caldert of Wilson Elser Moskowitz Edelman & Dicker LLP in New York City, NY. third party finance company that loaned him the money for his operation. The plaintiff was insured at the time of the collision, but was not insured at the time of his surgery. COMMENTARY The plaintiff s medical bills were in excess of $43,000, but this amount was all that was considered admissible as damages. A lein was placed on the damages by the plaintiff s medical provider, a $22,500,000 VERDICT RAILROAD NEGLIGENCE PLAINTIFFS ARE IN THEIR VEHICLE AT RAILROAD CROSSING WHEN TRAIN DERAILS, CATCHES FIRE AND EXPLODES SECOND AND THIRD DEGREE BURNS TO FACE, NECK, ARMS AND CHEST WRONGFUL DEATH. Cook County, Illinois In this negligence action, the plaintiff alleged that the defendants were negligent when the defendant s train, containing two thirds of the cars carrying ethanol, derailed and caused an explosion. As a result of the explosion, the plaintiff s wife died after catching on fire and the plaintiff sustained second and third degree burns to his body. The defendants denied liability and disputed damages. The 40-year-old male plaintiff and his 44-year-old wife were in their vehicle stopped at a railroad crossing. As the defendant s train approached the crossing, it derailed. 74 of the cars were tankers containing ethanol. Investigation disclosed that a portion of the track a few yards west of the intersection had washed out. As 14 of the ethanol tanks, containing over two million gallons of ethanol, passed over that section of track they derailed, causing their contents to spill. As a result of the derailment, an explosion occurred that caused a massive fireball, engulfing the plaintiffs vehicle. The plaintiff s wife died at the scene from burns. She was engulfed in flames. The plaintiff sustained second and third degree burns to this face, neck, back, arms and chest. The plaintiff brought suit against the defendant railroad maintaining that the defendant was negligent in the operation, maintenance, supervision and management of the emergency response system. The plaintiff alleged that the other defendants, subsidiaries of the main defendant railroad, were negligent in the operation of the train and maintenance of the track where the derailment occurred. The defendants generally denied negligence and disputed the plaintiff s damages. The parties agreed to a settlement consisting of $22,500,000 in this matter. The settlement consists of $15,500,000 for the decedent s estate and $7,000,000 to the plaintiff husband for his injuries. Plaintiff s railroad safety expert: Robert Halstead from Syracuse, NY. Plaintiff s railway consulting expert: Alan Blackwell from North Platte, NE. Plaintiff s train accident reconstructionist expert: James Loumiet from Independence, MO. Plaintiff s train and crew operations expert: Colin Fulk from Sherrill Ford, NC. Defendant s emergency communication expert: Paul Linnee, ENP from Minneapolis, MN. Defendant s geotechnical and railway engineering expert: James Hyslip from Williamsburg, ME. Defendant s railroad safety expert: Roy Dean from Wake Forest, NC. Defendant s railway operations expert: Gary Wolf from LaVista, NE. Jose Ada Tellez, Individually and as Administrator of the Estate of Zoila Tellez, deceased vs. Chicago Central & Pacific Railroad Company, et al. Case no S-0144; Judge Thomas Hogan, Attorneys for plaintiff: Robert J. Bingle and Philip H. Corboy, Jr. of Corboy & Demetrio in Chicago, IL. COMMENTARY The evidence disclosed that approximately 20 minutes prior to the derailment, the Winnebago County 911 center phoned the defendant railroad at its headquarters in Montreal and advised that there was a portion of the track near the scene of this incident that was washed out. The plaintiff alleged that the communication analyst in Montreal failed to register the information as an emergency and did not contact the dispatch office in Illinois until after the train had derailed. The weather bulletin for the area of the track where the derailment occurred was received in Edmonton Canada approximately 6:36 p.m. and was missed. The defendant s maintenance department did not have any notice of the washout of the track. The plaintiff originally demanded $27,500,000 for the decedent s estate and $9,000,000 for the plaintiff s injuries and damages. The defendant s offer was $4,000,000 for the plaintiff husband and $10,000,000 for his deceased wife s estate. Volume 27, Issue 6, June 2012

5 SUMMARIES WITH TRIAL ANALYSIS 5 $14,162,145 AWARD INCLUDING $7,000,000 PUNITIVE DAMAGE AWARD SEXUAL ASSAULT BATTERY GROSS NEGLIGENCE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BREACH OF FIDUCIARY DUTY PLAINTIFF ALLEGES REPEATED ACTS OF SEXUAL ABUSE AND MOLESTATION AGAINST FORMER STEP- FATHER. Berkeley County, South Carolina In this child molestation matter, the plaintiff alleged that her former step father repeatedly subjected her to multiple forms of sexual abuse during her childhood. She claimed lasting psychological disorders as a result of the abuse. The plaintiff was the step daughter of the defendant. The plaintiff s natural parents divorced in 1990 when the plaintiff was six years old. The defendant married the plaintiff s mother one year later in The plaintiff resided with her mother and the defendant from January 1991 through October During that time, the plaintiff alleged that the defendant repeatedly sexually assaulted and molested the plaintiff. The acts included having the child touch and rub his penis, perform oral sex on him, ejaculating in the plaintiff s mouth during oral sex, masturbating in front of the child and ejaculating on her stomach, fondling the plaintiff s breasts, vagina and performing oral sex on the plaintiff. These acts always took place when the plaintiff s mother was out of the house. The plaintiff further alleged that the defendant would force her to watch pornographic movies with him and then act out the sex scenes from the movies. The plaintiff alleged that the defendant threatened her and told her that he would beat her if she told anyone about their encounters. The plaintiff alleged that she suffered from extreme low self-esteem, felt dirty and lived in fear of the defendant hurting her. In 1998 the plaintiff went to the authorities about the defendant s sexual molestation and assaults, but recanted her allegations when the defendant threatened her. It was not until 2002 that the plaintiff was able to come forward with the allegations against the defendant and action was taken by the authorities. As a result of the defendant s repeated actions through the years, the plaintiff has been diagnosed with post-traumatic stress disorder, depression, parasomnia, tricholtillomania, and anxiety and panic attacks. The matter was tried by the court. After the one day trial, the court immediately ruled in the plaintiff s favor and issued an order on November 15, The court awarded the plaintiff the total sum of $14,162,145 which consisted of $3,500,000 in past and future pain and suffering; $3,500,000 for past and future mental anguish and $162,145 for future medical expenses. The court also assessed punitive damages of $7,000,000 against the defendant. There has been no appeal in this matter. Kelly Waldron Bowles vs. Donald A. Baxter. Case no CP ; Judge Stephanie McDonald, Attorneys for plaintiff: Joseph P. Griffith, Jr. and Jerry N. Theos of Joe Griffith Law Firm, LLC in Charleston, SC. COMMENTARY This is reported to be one of the largest awards in South Carolina for a child molestation case. The court determined that the defendant had committed sexual assault, sexual battery, intentional infliction of emotional distress (which is referred to as the tort of outrage) and gross negligence. The court also assessed $7,000,000 in punitive damages against the defendant. The court determined that punitive damages were justified under the Gamble v. Stevenson factors. These factors include: the defendant s degree of culpability, the duration of the conduct which in this case lasted over ten years, the defendant s awareness of the concealment, the existence of any past similar conduct (the defendant had a previous charge of first degree criminal sexual conduct and sexually assaulting the plaintiff s younger sister (which charge is still pending), the likelihood that the award will deter the defendant and others from like conduct, whether the award is reasonably related to the harm resulting and the defendant s ability to pay. The defendant had pleaded guilty in 2003 to charges of assault and battery of a high and aggravated nature by taking indecent liberties with the plaintiff. The defendant received a six-year sentence of imprisonment which was suspended upon two years probation. The transcript of his guilty plea hearing was admitted into evidence in the civil trial. The defendant basically denied the accuracy of the transcript and denied that he pleaded guilty to taking indecent liberties with the plaintiff. The defendant also left the plaintiff two voic messages on the plaintiff s voic in which he admitted ruining the plaintiff s childhood and apologized for screwing up her adolescent years. The plaintiff, who is presently 27 years old and married, lives in constant fear of still being assaulted and attacked by the defendant. National Jury Verdict Review & Analysis

6 6 SUMMARIES WITH TRIAL ANALYSIS $12,000,000 VERDICT INCLUDING $1,000,000 PUNITIVE DAMAGE AWARD DEFAMATION FORMER PATIENT CREATES WEBSITE DEFAMING PLAINTIFF SURGEONS IMPAIRMENT OF REPUTATION AND STANDING IN THE COMMUNITY MENTAL ANGUISH EMOTIONAL DISTRESS. Maricopa County, Arizona In this defamation action, the plaintiff surgeons maintain that the defendant, a former dissatisfied patient defamed the plaintiffs and their professional reputation causing them to suffer impairment of their reputation, mental anguish and emotional distress. The defendant maintained that the statements were true. The plaintiffs are licensed physicians and surgeons who operate a surgery center. The defendant was a former patient of the plaintiffs who was dissatisfied with the cosmetic procedures that she received from the plaintiffs. In January 2007 the plaintiff underwent a number of procedures including a CO2 laser resurfacing of her face and a rhinoplasty. The laser resurfacing is a controlled second degree burn of the skin to permit the growth of new, tighter skin. The procedures were uneventful and the defendant appeared to be healing well. A few weeks after the procedure, the defendant developed an infection. Throughout 2007 and 2008 the plaintiffs continued to treat the defendant but were puzzled by the nonhealing condition of her face. Since the defendant had been to the emergency room for a problem with her bowel movements, there was some issue that perhaps the defendant had contracted MERSA, an antibiotic resistant staph infection, which was delaying her healing and causing problems with the healing process of her face. In August 2007, the plaintiffs learned for the first time that the defendant had been seeing other physicians for her face, had underwent multiple biopsies and had been using a number of unauthorized products on her face, including liquid nitrogen and liquid chemotherapy, which contributed to the non-healing condition of the defendant s skin. Once the plaintiffs became aware of these other treatments and products, the plaintiffs had the defendant enter into an agreement with them that the defendant was not going to see any other physicians or use any other products on her face without authorization from the plaintiffs. The defendant agreed to this and her face once again began to properly heal. In January 2008, the defendant underwent a revision rhinoplasty under the care of the plaintiffs in order to remove some scar tissue that had built up on the bridge of her nose following the initial rhinoplasty. The defendant was unhappy with the results of the revision surgery. She alleged that the plaintiff intentionally shortened and curved her nose upward against her express wishes. The plaintiffs did not treat the defendant again after the office visit on January 29, Volume 27, Issue 6, June 2012 Thereafter, in April 2008, the defendant created a website entitled in which she accused the plaintiffs of harming her face with the laser procedure. The defendant failed to disclose on the website that she had been simultaneously treating with other doctors, obtaining liquid nitrogen and liquid chemotherapy treatments and using additional unauthorized products on her face during this time, all without the plaintiff s permission or knowledge, interfering with her own healing abilities. The plaintiffs alleged that the defendant also made and assisted others in making false complaints with the Arizona Medical Board regarding the plaintiffs and their surgical practice. The plaintiffs brought suit against the defendant for defamation and defamation per se and false light invasion of privacy. The plaintiffs alleged that the defendant s actions impaired their reputation and standing in the community, caused them personal humiliation, mental anguish and emotional distress and caused them to suffer financial losses due to her defamatory and false statements. The defendant denied the allegations, maintaining that the statements that she made were true. The defendant contended that the plaintiffs bad character and reputation were matters of public concern and entitled her to a higher constitutional standard. The matter was tried over a period of four weeks and the jury deliberated for four-and-a-half hours before returning its verdict in favor of the plaintiffs and against the defendant. The jury awarded the plaintiffs the sum of $11,000,000 in actual damages and $1,000,000 in punitive damages. The total award was $12,000,000. Desert Palm Surgical Group PLC, Albert E. Carlotti and Michelle L. Cabret-Carlotti vs. Sherry Petta. Case no. CV ; Judge Mark H. Brain, Attorneys for plaintiff: Matthew J. Kelly and Chelsey M. Golightly of Kelly McCoy PLC in Phoenix, AZ. Attorney for defendant: Derron D. Woodfork of Law Offices of Derron D. Woodfork in Scottsdale, AZ. COMMENTARY The plaintiff s attorney advised that the court s final jury statements were, overall, weighted heavily in the defendant s favor. For example, the plaintiff related that the Court gave an instruction that equated nominal damages with presumed damages for defamation per se. In particular, the Court instructed the jury that if the plaintiffs proved defamation per se but have not proven, by a preponderance of the evidence, their actual damages, then you must award presumed/nominal damages (such as, for example, $1 or $100). The plaintiffs were concerned that the Court s instruction

7 SUMMARIES WITH TRIAL ANALYSIS 7 might have erroneously equated presumed damages" with nominal damages and would actually invite the jury to award only nominal damages. This, however, did not hurt the plaintiff s case in the end since the jury failed to find that the defendant, or her claims, were credible. The plaintiffs were able to demonstrate to the jury the defendant s errant behavior, such as showing up screaming at the plaintiffs office and running screaming into patient rooms advising the patients to get out when she was there to pick up her medical records. This event caused the plaintiffs to call the police on the defendant and serve her with a trespass warrant and obtain an injunction against harassment against her. After she lost the hearing and the injunction restraints were continued by the court, the plaintiffs were able to demonstrate that the defendant purchased the website and shortly thereafter put up defamatory and misleading content about the plaintiffs and their surgical practice. The defendant ignored cease and desist letters and the plaintiffs were left with no alternative but to bring suit against the defendant for her actions. After suit was filed, the defendant filed a medical board complaint against the plaintiffs and she appeared to be instrumental in obtaining the names of other dissatisfied former patients and convincing them and/or assisting them in filing medical board complaints against the plaintiffs which resulted in 22 medical board complaints being filed against the plaintiffs. All of the medical board complaints were dismissed for no cause of action. The plaintiff s attorney was effective in discrediting the defendant in her claims on the website by reviewing each and every of the seven or eight iterations of the website and successfully getting the defendant to admit that for each such version of the site, she failed to disclose that she was obtaining intervening treatments which were impeding her healing progress and failed to disclose any information about those treatments on her sites. It is the plaintiffs understanding that while judgment has not yet been entered in this matter, the defendant intends to file post-trial motions and appeal the jury s verdict. $5,000,000 RECOVERY CONSTRUCTION SITE NEGLIGENCE PLAINTIFF WORKER TRIPS AND FALLS THROUGH NON-WEIGHT BEARING SKYLIGHT AT THE DEFENDANT S WAREHOUSE 40 FT. FALL TO CONCRETE FLOOR SPINAL CORD INJURIES RESULTING IN PARALYSIS OF RIGHT LEG NEUROGENIC BLADDER FRACTURES TO RIBS, PELVIS, CLAVICLE, SCAPULA AND HUMERUS. San Bernardino County, California In this negligence action, the plaintiff contended that the defendant failed to comply with state regulations regarding the safety of skylights and created a dangerous condition for the plaintiff whereby he fell through one of the skylights, falling 40 feet down onto a concrete floor. As a result of the fall, the plaintiff sustained multiple fractures, a spinal injury that left his right leg paralyze and a neurogenic bladder. The defendant denied liability and maintained that the plaintiff s employer was responsible for ensuring the safety of the plaintiff. The 45-year-old male plaintiff was working at the defendant paper company s warehouse. His employer had been hired to replace some of the defendant s skylights on the roof of its warehouse with HVAC ventilation units. On June 26, 2008, as the plaintiff was working on the roof, he inadvertently tripped and fell through a non-weight bearing skylight on the roof of the defendant s warehouse facility. The plaintiff fell 40 feet onto a concrete floor and sustained serious injuries. He was diagnosed with spinal cord injuries which resulted in the paralysis of his right leg, a neurogenic bladder, and broken ribs, pelvis, clavicle, scapula and humerus. The plaintiff brought suit against the defendant alleging that the defendant failed to comply with state OSHA regulations regarding the safety of the skylights. The plaintiff contended that the defendant was acting as the general contractor for the work and was therefore responsible to the plaintiff to provide a safe work environment. Finally, the plaintiff alleged that the defendant failed to comply with the skylight manufacturer s warnings regarding safety issues. The defendant denied the allegations. The defendant maintained that the plaintiff s employer was directly responsible for the safety of the plaintiff, as its employee. The defendant also maintained that the plaintiff was the foreman on the job and it was his responsibility to ensure a safe workplace which he evidently failed to do, since he tripped and fell. Finally, the defendant contended that the skylights were an open and obvious condition and the plaintiff was negligent in failing to exercise due care. The defendant also disputed causation and the nature and extent of the plaintiff s injuries and damages. The defendant filed a motion for summary judgment which was denied. The plaintiff then made an insurance policy limits demand which the defendant rejected. The first mediation did not result in any settlement. The case settled just prior to the commencement of the trial. The plaintiff agreed to accept the sum of $400,000 to his worker s compensation carrier and $4,600,000 to the plaintiff and his wife. Plaintiff s economist expert: Peter Formuzis, Ph.D. from Santa Ana, CA. Plaintiff s life care planner expert: Jan Roughan, BSN, PHN, RN, CRRN, CNLCP, CCM from Monrovia, CA. Plaintiff s neuropsychology expert: Jeffrey Schaeffer, Ph.D. from Los Angeles, CA. Plaintiff s physical medicine and rehabilitation National Jury Verdict Review & Analysis

8 8 SUMMARIES WITH TRIAL ANALYSIS expert: Lawrence Miller, M.D. from Santa Monica, CA. Plaintiff s psychiatry expert: Lester Zackler, M.D. from Sherman Oaks, CA. Plaintiff s safety planning expert: Lane Ellison, CSP from Huntington Beach, CA. Reyes vs. Allied West Paper Company. Case no. DS ; Judge John Pacheco, Attorneys for plaintiff: Kevin Boyle, Rahul Ravipudi and Ryan Casey of Panish Shea & Boyle, LLP in Los Angeles, CA. Attorney for defendant: Tom Kern of Veatch Carlson LLP in Los Angeles, CA. COMMENTARY The plaintiff argued that the skylights on the roof did not comply with California OSHA regulations which stated that anyone approaching within six feet of any skylight shall be protected from falling through the skylight or the skylight opening by one of the following methods: (1) skylight screens which meet specified strength requirements to prevent a person from falling through a non-weight bearing skylight; (2) guardrails or (3) covers installed over the skylights that meet California OSHA regulations. The plaintiff contended that the skylights were non-weight bearing and despite this the defendant made no effort whatsoever to ensure the safety of anyone on the roof in the vicinity of the skylights as the plaintiff was on the date of the accident in order to conform with the state regulations. The plaintiff argued that the defendant did not warn the plaintiff of the danger of the non-weight bearing skylights. The plaintiff also argued that the skylight manufacturer warned that guardrails or other means were required to be erected to prevent anyone from falling through its skylights. The plaintiff maintained that the defendants disregarded all of this which caused the plaintiff s fall. The defendant argued that liability rested with the plaintiff s employer and presented evidence that the employer failed to train its employees and failed to provide them with required fall protection and fall prevention training. The defendants contended that under the Privette line of cases, liability against the defendant was barred and the plaintiff s only remedy existed in worker s compensation. The plaintiff s medical bills at the time of the trial totaled $1,700,000. The plaintiff s wife brought a loss of consortium claim. The defendant s failure to accept the plaintiff s insurance policy limits demand potentially opened the defendant up to liability for a verdict in excess of its policy limits. The worker s compensation insurance carrier and the plaintiff entered into a separate agreement whereby the carrier agreed to provide lifelong worker s compensation benefits to the plaintiff and it waived any right to assert a credit against the plaintiffs after receiving the $400,000 from the settlement. $3,500,000 RECOVERY BUS NEGLIGENCE COMMERCIAL BUS STRIKES PEDESTRIAN FAMILY CROSSING INTERSECTION BROKEN SHOULDER AND PELVIS DEGLOVING INJURIES SIGNIFICANT INTERNAL INJURIES. Cook County, Illinois In this action for motor vehicle negligence, the plaintiffs alleged that the defendant s negligence caused them both to suffer broken bones, as well as severe external and internal injuries. The defense denied the allegations, arguing instead that the plaintiff s own negligence caused the accident. On May 2, 2008, the plaintiffs were crossing the street at a stop sign when they were struck by a bus that was making a left hand turn. The bus was owned and operated by the defendant corporation and driven by the defendant V. Redd. As a result of the collision, the 50-year old plaintiff, L. Fleming, suffered a broken shoulder requiring surgery and a de-gloving injury to her foot requiring skin grafting. M. Jones, her fouryear-old granddaughter, suffered a broken pelvis and a deep vaginal laceration, requiring surgical repair. The plaintiffs sued both the defendant driver and the defendant corporation on theories of negligence and vicarious liability, respectively. Specifically, the plaintiffs argued that they were within the crosswalk when the bus struck them. The plaintiffs also contended that the defendant driver failed to keep an appropriate lookout or use caution when making the left turn. Therefore, the plaintiffs argued that it was the driver s negligence that proximately caused the accident and their injuries. The defendants denied the allegations. Instead, the defense argued that the plaintiffs were at fault for the accident. In support of their argument, the defense highlighted testimony which proved that the plaintiff, L. Fleming, had been drinking the night before, arguing that she was intoxicated. Additionally, the defense contended that the plaintiffs were not keeping a proper lookout and that they darted in front of the bus. Ultimately, this matter settled with a $3,500,000 recovery for the plaintiff which was paid, in full, by the defendant corporation s insurance carrier. Plaintiff s orthopedics expert: Dr. Michael Terry from Chicago, IL. Plaintiff s pediatric urology expert: Dr. Justine Schober from Erie, PA. Plaintiff s vocational economist expert: David Gibson from Chicago, IL. Defendant s orthopedics expert: Dr. Steven Rabin from Aurora, IL. Defendant s pediatric urology expert: Dr. Jennifer Singer from Los Angeles, CA. Defendant s vocational rehabilitation expert: James Radtke from Northbrook, IL. Aisha Fleming, as Mother and Next Best Friend of Marisha Jones, a minor and LaVerne Fleming vs. Sunrise Transportation Inc., a corporation, and Vernon Y. Redd. Case no. 08L5024, Volume 27, Issue 6, June 2012

9 SUMMARIES WITH TRIAL ANALYSIS 9 Attorney for plaintiff: Patrick A. Salvi, II of Salvi, Schostok & Pritchard P.C. in Chicago, IL. Attorneys for defendant: Michael D. Krause and Laura Sbertoli of Bollinger Connolly Krause LLC in Chicago, IL. COMMENTARY According to the plaintiffs attorney, expert testimony played a key role in catalyzing this significant settlement. The plaintiffs counsel believes that the testimony given by the well-qualified pediatric urogynecologist for the plaintiff was particularly compelling as it related to the severity of the four-year old plaintiff s vaginal and internal injuries. Moreover, counsel credited the testimony of the pediatric trauma surgeon who repaired the four-year-old plaintiff s vaginal laceration. This expert testified that he had done approximately one to two dozen similar surgeries in his career. Of those surgeries, he testified that most involved sex abuse victims and that the plaintiff s injury was probably the worst that he had ever seen. $1,225,000 VERDICT INTELLECTUAL PROPERTY LANHAM ACT INTENTIONAL INFRINGEMENT OF PLAINTIFF S TRADE DRESS PRODUCT SIGNIFICANT FINANCIAL LOSS AND INJUNCTIVE RELIEF. Cuyahoga County, Ohio In this action for trade dress infringement, the plaintiff alleged that the defendant was manufacturing and marketing an industrial product that looked exactly like the plaintiff s protected trade dress product. The defendant denied the allegations and argued, among other things, that the two products were visually dissimilar. The plaintiff is an Ohio company that distributes throughout the United States automatic lubrication systems ( ALS ) manufactured by its parent company. Operating as an internationally recognized industry leader, the plaintiff s ALS products have been on the market for about 30 years. The defendant is an Ontario company whose founder/president formerly ran the plaintiff s North American operations until In late 2009, the plaintiff discovered that the defendant was distributing its competing ALS products in the United States. The product at issue is installed on large semi-tractor trailer trucks. The product automatically lubricates, at timed intervals and during operation, precise amounts of lubrication to the various greasing points on the vehicles. The main component of the system isthegreasepump.thegreasepumpisthecomponent of the system that the plaintiff alleged the defendant unlawfully copied. In 2010, the plaintiff filed suit in federal court (the Northern District of Ohio) against the defendant alleging trade dress infringement under the Lanham Act and various related federal and state law claims. The plaintiff alleged that the defendant intentionally infringed the plaintiff s protected trade dress when it began marketing and distributing ALS pumps that look exactly like the plaintiff s products. At trial, the plaintiff sought trade dress protection in the external shape, design, and overall appearance of its ALS pumps. The defendant denied the allegations and argued that there was no unlawful infringement. In support of this argument, the defendant asserted that the products are not confusingly similar and have not generated a likelihood of confusion in the industry. Moreover, the defendant contended that placement of its labeling on its pumps eliminates any likelihood of confusion and renders the products visually dissimilar. Alternatively, the defendant argued that the trade dress is not protectable insofar as it is functional and has not acquired secondary meaning. Finally, the defendant argued that the plaintiff did not sustain compensable damages. Ultimately, in October 2011, a unanimous jury awarded the plaintiff $1,225,000 in damages. Not only did the jury find that the defendant had committed trade dress infringement, but also it found that the defendant s infringement was willful. Plaintiff sbrandingandmarketingstrategiesand consumer purchasing behavior expert: Jennifer Wolfe, Esq. APR, SSRB from Cincinnati, OH. Plaintiff s economist expert: John F. Burke, Jr. Ph.D. from Cleveland, OH. Plaintiff s engineer and industrial product design and development expert: Majid Rashidi. Groeneveld Transport Efficiency, Inc. vs. Lubecore International LLC. Case no. 1:10-CV-00702; Judge Donald C. Nugent, Attorney for plaintiff: Deborah Michelson of Miller Goler Faeges LLP in Cleveland, OH. Attorney for defendant: Thomas Anastos of Ulmer & Berne LLP in Cleveland, OH. COMMENTARY The Court entered judgment in favor of the plaintiff on the jury s verdicts on October 26, 2011, indicating that a permanent injunction will issue shortly. According to the plaintiff s counsel, the matter is currently in the post-trial motion stage and, based on the jury finding of willfulness, the Lanham Act authorizes the Court to award the plaintiff its reasonable attorney fees and litigation expenses and to enhance the monetary damages award up to an additional three times the amount of the initial award. In addition, the plaintiff is pressing the Court for extraterritorial application of the Lanham Act so that the permanent injunction enjoins restricted activity in Canada, as well as in the United States. National Jury Verdict Review & Analysis

10 10 SUMMARIES WITH TRIAL ANALYSIS $1,000,000 RECOVERY ADMIRALTY USE OF HIGHLY FLAMMABLE LIQUID IN SMALL NON-VENTILATED AREA IN CONJUNCTION WITH POWER TOOLS THAT CREATES SPARK, IGNITING THE LIQUID AND CAUSING AN EXPLOSION AGGRAVATION OF PREVIOUSLY ASYMPTOMATIC ARNOLD-CHIARI I MALFORMATION MILD TRAUMATIC BRAIN DAMAGE WITH COGNITIVE DEFICITS. Norfolk County, Virginia In this maritime law action, the plaintiff claimed that he suffered a permanent brain injury that has left him with cognitive deficits when an explosion occurred on the ship he was working on. The explosion was caused when an employee of the defendant used a highly flammable substance in conjunction with a power buffer which ignited the substance and caused an explosion. The defendant denied being negligent and argued that the comparative negligence of the plaintiff caused his injuries. On September 15, 2007, the plaintiff was a shipyard worker that was aboard the U.S.S. Leyte Gulf while the ship was in shallow navigable United States waters. The defendant company had been subcontracted to install a new deck in the head area of a ship. An employee for the defendant company used a highly flammable liquid to remove stains from the deck. As the employee began to use an electrical buffer to remove the stains, a spark from the buffer ignited the liquid and caused an explosion. The explosion threw the plaintiff backwards into the ship s steel bulkhead. The plaintiff alleged that the defendant company failed to take precautions for adequate ventilation, failed to take proper precautions during the use of the flammable liquid, failed to guard against static electricity and direct electrical current and sparks from equipment used in the area as an ignition source and failed to provide adequate and proper training for its employees. As a result, the plaintiff suffered an aggravation of a preexisting congenital defect known as Arnold-Chiari I malformation where the tonsils of the cerebellum extend through the base of the skull into the spinal canal. The plaintiff was asymptomatic before the explosion, but since the explosion he suffers from headaches, blackouts, along with lumbar pain and bilateral shoulder pain. He underwent suboccipital decompression surgery with dural graphing to repair the Chiari malformation. Following surgery, he developed a spinal leak requiring an additional surgery. He has been left with a mild brain injury with cognitive deficits. The defendant denied all allegations of negligence and alleged that the plaintiff was guilty of contributory negligence and assumption of risk with regard to the factual circumstances alleged in his complaint. Additionally, the defendant alleged that the plaintiff s claim is barred by the appropriate worker s compensation statutes, including but not limited to, the Longshore and Harbor Worker s Compensation Act. The parties settled for $1,000,000. Steven Moore vs. Capitol Finishes Incorporated. Case no. 09cv392. Attorneys for plaintiff: Stephen Swain, Esq. of Shuttlworth, Ruloff Swain Haddad and Morecock in Virginia Beach, VA, and Carlton F. Bennett of Bennett and Zydron in Virginia Beach, VA. Attorney for defendant: Lewis Kincer of Kincer Snyder in Glen Allen, VA. COMMENTARY The defendant in this case argued before the court that the plaintiff s cause of action for negligence under the general maritime law of the United States must be precluded as a matter of law by the exclusivity provision of the Virginia Worker s Compensation Act, as the plaintiff has received some benefits under the Virginia Worker s Compensation Act from his employer. The court found, however, that the plaintiff s claims are not grounded in common law negligence that is governed by the Virginia Worker s Compensation Act, but rather in federal maritime law. The court has found in the past that when a plaintiff has a substantive right recognized by federal maritime law, the court may otherwise apply applicable state law if and only if the state law in question does not operate to deprive the plaintiff of his right to pursue causes of action against other defendants. In this case, the court determined that operation of the Virginia Act s exclusivity provision would preclude the plaintiff s maritime claim altogether which would deprive the plaintiff of his right to recover damages from any other company other than his employer. Volume 27, Issue 6, June 2012

11 SUMMARIES WITH TRIAL ANALYSIS 11 $494,150 RECOVERY EMPLOYER S LIABILITY RETALIATION L.A. FIREFIGHTER FILES EEOC COMPLAINT AFTER HARASSMENT ON JOB FOR LAWSUIT AGAINST CATHOLIC ARCHDIOCESE CIVIL RIGHTS VIOLATION. Los Angeles County, California In this matter, a firefighter/engineer alleged that he suffered harassment and discrimination on the job after filing a sexual abuse case against the Catholic Church. The plaintiff settled the matter pre-litigation for $494,150. Since 1986, the plaintiff has been an employee of the Los Angeles Fire Department. In 2006, the plaintiff filed a complaint against the Catholic Church for his sexual abuse at the hands of a priest while the plaintiff was an altar boy. Thereafter, the plaintiff alleged to have suffered discrimination and harassment by his fellow firefighters. The plaintiff contended that he was mocked and subject to explicit and offensive religious and sexual epithets. His complaints, he alleged, failed to address or remedy the issue. The plaintiff filed a complaint with the Employee Equal Opportunity Commission (EEOC). The EEOC discovered evidence showing retaliatory discipline taken against the plaintiff for his participation in another equal employment opportunity investigation. That retaliation violated Title VII of the Civil Rights Act of The EEOC contacted the Los Angeles Fire Department after finding reasonable cause to believe a violation of the law had occurred. The matter was settled pre-litigation with the City of Los Angeles for $494,150. The fire department s fire chiefs and subordinate staff also agreed to undergo anti-harassment training, as well as complying with the EEOC in the future. Anthony Almeida vs. City of Los Angeles. Case no // , Attorneys for plaintiff: Vince W. Finaldi, Esq. and John Manly of Manly & Stewart in Newport Beach, CA. Attorney for defendant: Salome Park of Office of the City Attorney in Los Angeles, CA. COMMENTARY In July 2007, the Roman Catholic Church in Los Angeles reached a $660 million settlement with 508 victims (including the plaintiff). The settlement afforded an average of $1.3 million for each plaintiff, and settled all outstanding civil lawsuits against the Archdiocese. Verdicts by Category $1,900,000 RECOVERY PROFESSIONAL MALPRACTICE Cardiology Medical Malpractice Cardiology Failure to diagnose the decedent s aortic dissection Negligently discharging the decedent when he was medically unstable Wrongful death of 31- year-old. Allegheny County, Pennsylvania The decedent in this medical malpractice action presented to the defendant hospital and was treated by several defendants who all failed to diagnose and treat the decedent s aortic dissection, which is a surgical medical emergency. As a result, the decedent was discharged and the dissection went untreated until it caused the decedent s death several days later. The defendants all argued that decedent was treated in accordance with all medical standards. On October 2, 2006, the 31-year-old male decedent felt an intense pain in his chest while lifting a large pipe at work. The pain was so great that the decedent collapsed to the floor. A coworker took the decedent to the work site health clinic where he was seen by a doctor who observed the decedent in great distress with profuse sweating. After listening to the decedent s heart and detecting a heart murmur, the doctor ordered the decedent directly to the defendant emergency room. National Jury Verdict Review & Analysis

12 12 VERDICTS BY CATEGORY Upon arriving at the defendant E.R., the decedent was treated by the various individual defendants. The defendants, in consultation with each other, admitted the decedent for observation and diagnosed the decedent with a urinary tract infection, chest pains from fluid around the heart caused by the infection, musculoskeletal pain and hypertension. The decedent was treated for about 24 hours with antibiotics and pain medication. He underwent an echo cardiogram interpreted by defendant Dr. Lawrence B., which the defendant read as normal. On October 3, 2006, the decedent was discharged with a 14 day course of antibiotics, told to take a week off of work and told to schedule a follow-up appointment in one week. On October 6, 2006, while riding in the car with his wife, the decedent began to experience slurred speech and he collapsed. The decedent s wife drove him to the nearest hospital where he was seen and immediately transferred to another facility, where despite heroic efforts, the decedent died at 9:35 p.m. An autopsy revealed that the decedent died from massive dissection of the entire thoracic aorta. The defendant was negligent in failing to detect the presence of aortic dissection on the echo cardiogram, failing to order proper diagnostic testing, failing to order a cardiac consult and failing to order a repeat echo cardiogram. Additionally, the plaintiff alleged that the defendant doctor s group and hospital were vicariously liable. The defendants all denied all liability and argued that proper medical care was provided to the decedent in accordance with all medical standards. The plaintiff settled with the defendants, Dr. Lawrence B. and UPMC St. Margaret Inc. T/D/B/A The Cardiovascular Institute of UPMC St. Margaret and University of Pittsburgh Physicians for $1,900,000. All other defendants were dismissed from the action. Deanna L. Lauver Individually and as Administratrix of the Estate of Robert Lauver vs. Lawrence Bucklew, Jr. M.D., UPMC St. Margaret Inc. and University of Pittsburgh Physicians. Case no. GD ; Judge Ronald Folino, Attorney for plaintiff: Rudolph Massa of Massa Law Group in Pittsburgh, PA. Attorney for defendant: John Conti of Dickie, McCamey & Chilcote in Pittsburgh, PA. $178,000,000 VERDICT Gastroenterology Medical Malpractice Gastroenterology Man suffers brain damage in nightmare gastric bypass post-op at Florida hospital Sepsis Damaged corneas Bedsores Contractures Coma. Duval County, Florida In this case, a former Clay County deputy filed suit after he lapsed into a coma due to a postoperative septic infection. The plaintiff patient and his wife brought suit for numerous breaches in the standard of care as well as fraud. In March 2007, the plaintiff underwent gastric bypass surgery at the defendant Memorial Hospital in Jacksonville, Florida. Thereafter, the plaintiff suffered health complications resulting from his surgery which went undiagnosed by his doctors. This condition resulted in cardiac arrest, septic shock and ultimately a hypoxic brain damage. On March 17th, the plaintiff lapsed into a coma, which he remained in until early April. While in the ICU, he sustained further injury, this time to his corneas. His eyes during that period were described as being swollen and red. While under hospital care, the plaintiff also sustained contractures (frozen joint) injuries and bedsores. The plaintiff and his wife filed suit in the Duval County Circuit Court for medical malpractice and fraud. The defendants, Memorial Hospital and Dr. John D., the plaintiff s treating physician, were accused of breaching the standard of care. The defendant hospital was also accused of repeated breaches of the most basic standards of care for a medical facility, resulting in preventable injuries, as well as fraud relating to its bariatric program. The plaintiff showed evidence at trial of repeated violations of the standard of care. The plaintiff s physician ordered that two drops be put in both of his eyes every eight hours for three days while he was in the ICU. Evidence submitted showed that drops were only administered twice. They further asserted that the presence of bedsores itself showed malpractice, as theinjuryisclassedasalwayspreventable. The plaintiff further showed that Memorial Hospital misrepresented their bariatric program ( the Memorial Bariatric Surgery Center ) by failing to follow basic patient safety standards in spite of a Bariatric Center of Excellence certification. Breaches included allowing an unqualified surgeon to perform the procedure while unsupervised. The jury found for the plaintiff after five hours and awarded $168 million in compensatory damages to the plaintiffs. After an hour and a-half s deliberations, an additional $10 million was awarded in punitive damages for fraud associated with the defendant s bariatric program. Volume 27, Issue 6, June 2012

13 VERDICTS BY CATEGORY 13 Plaintiff s bariatric surgery expert: Eliot Goodman from New York, NY. Plaintiff s economist expert: Rody Borg from Jacksonville, FL. Plaintiff s hospitals expert: Jeff Buckley from TX. Plaintiff s life care planning expert: Sharon Griffin from FL. Plaintiff s neuro-ophthalmology expert: Harry Hamburger from Miami, FL. Defendant s bariatric surgery expert: Ken Jones from Shreveport, LA. Defendant s neurologist expert: Alfred Callahan, III, MD from Nashville, TN. Defendant s ophthalmology expert: Timothy Schneider from Jacksonville Beach, FL. George Clay Chandler vs. Memorial Hospital Jacksonville, et al. Case no CA ; Judge Jean Johnson, Attorney for plaintiff: Tom Edwards of Edwards & Ragatz in Jacksonville, FL. Attorney for defendant: Brian Cummings of Gideon, Cooper & Essary PLC in Nashville, TN. Attorney for defendant: Carlton Fields in West Palm Beach, FL. $2,000,000 VERDICT Medical Malpractice Gastroenterology Ongoing misdiagnosis and failure to order proper tests lead to delay in diagnosis for true condition Stage III rectal cancer. Lawrence County Court of Common Pleas, Pennsylvania The plaintiff in this matter sued after a doctor misdiagnosed rectal cancer as hemorrhoids. The defendant doctor denied departure from the standard of care. On May of 2008, the plaintiff, 32, went to see the defendant doctor at her office. At the time, the plaintiff had thought she was experiencing hemorrhoidal bleeding. The doctor performed an anoscopy and diagnosed her with hemorrhoids. She then recommended treatment with an IRC machine, which involved using a wand of light applied to the base of the hemorrhoid, without ordering any further testing. The plaintiff saw the doctor four more times in the subsequent year and a-half with no relief of her symptoms. The defendant doctor in each case failed to order further testing and consistently diagnosed hemorrhoids. In July 2009, the plaintiff visited a specialist who discovered that she had Stage III rectal cancer with positive lymph nodes. She subsequently underwent radiation and chemotherapy, followed by major surgery and further high-dose chemotherapy. Suit was filed in the Lawrence County Court of Common Pleas for medical malpractice against the defendant doctor. The plaintiff patient and her husband accused the doctor of negligence through her delayed diagnosis. The plaintiff sought recovery for pain and suffering and past medical expenses, with a loss of consortium claim entered by her husband. The plaintiff asserted at trial that the doctor breached the standard of care. The plaintiff s counsel (who is also a board-certified internal medicine doctor) asserted that if rectal bleeding is observed, endoscopy tests using either a flexible sigmoidoscopy or a colonoscopy must be performed. Counsel cited guidelines by the American Gastroenterology Association ( AGSE ), as well as numerous other medical and surgical organizations. After the conclusion of a six day trial, the jury deliberated for two and a-half hours before returning with a $2 million verdict for the plaintiff. The jury found the doctor negligent and that the delay in a cancer diagnosis made it more likely that the plaintiff would require intensive, painful therapy, as well as an increased mortality risk associated with her illness. They awarded $75,000 for the plaintiff s past medical expenses, $1,825,000 for her pain, suffering and mental distress and $100,000 for her husband s loss of consortium. Plaintiff s colorectal surgery expert: David Medich, M.D. from Pittsburgh, PA. Plaintiff s economist expert: Donald Kirwan, SPHR from Pittsburgh, PA. Plaintiff s gastroenterology & hepatology expert: Robin Median, M.D. from Pittsburgh, PA. Plaintiff s hematology/oncology expert: William Sikov, M.D. from Providence, RI. Defendant s gastroenterology & hepatology expert: Ragunath Appasamy, M.D., Ph.D. from Pittsburgh, PA. Defendant s oncology/radiology expert: Jondavid Pollock, M.D., Ph.D. from Wheeling, WV. Defendant s surgeon and family medicine expert: John Pfenninger, M.D. from Midland, MI. Defendant s surgery expert: David Feingold, M.D., FACS, FASCRS from New York, NY. Sarah Bargas vs. Dr. Ann Blakeley. Case no. Dominick Motto; Judge , Attorneys for plaintiff: Deborah Maliver, M.D., J.D. and Christine Biancheria, Esq. of Biancheria & Maliver, P.C. in Pittsburgh, PA. Attorney for defendant: Daniel Carroll, Esq. of Davies, McFarland & Carroll, PC in Pittsburgh, PA. National Jury Verdict Review & Analysis

14 14 VERDICTS BY CATEGORY $1,500,000 VERDICT Medical Malpractice Gastroenterology Failure to timely diagnose and treat bowel obstruction in Crohn s patient Loss of 29 inches of necrotic bowel Likelihood of future flare-ups Short gut syndrome in 22-year-old plaintiff. Middlesex County, Massachusetts In this medical malpractice matter, the plaintiff alleged that the defendant internist was negligent in failing to order immediate surgery for apparent bowel obstruction which resulted in the loss of 29 inches of intestine due to necrosis. The defendant denied negligence and disputed the nature and extent of the plaintiff s injuries and damages. The 22-year-old male plaintiff came under the care of the defendant internist when he began to suffer from severe stomach pain. The defendant worked at the medical center where the plaintiff went to seek medical assistance. The plaintiff had a medical history of Crohn s Disease and as a teenager had undergone three separate bowel resections. The defendant s initial diagnosis was a partial bowel obstruction that could be treated conservatively with medication. However, the plaintiff s condition continued to deteriorate rapidly with complaints of abdominal rigidity, increased pain that could not be alleviated with medication and a grapefruit size mass in his abdomen. Despite these symptoms and findings, the defendant failed to obtain a surgical consult and instead the plaintiff was sent home. The next morning the plaintiff wasinsuchpainthathewastakentoahospitalfor emergency surgery. The plaintiff had 29 inches of necrotic bowel that had to be removed, leaving the plaintiff with inability to digest swallowed food and need for an intravenous PIC line. He was diagnosed with short gut syndrome, meaning that he had only the minimum of intestine necessary to digest food. The plaintiff contended that in all likelihood he would experience additional flare-ups which may lead to further bowel resections. With the minimum bowel he had left, he may ultimately require a bowel transplant which has a limited survival rate of five years. The plaintiff brought suit against the defendant alleging negligence. The plaintiff alleged that the defendant was negligent in failing to immediately recognize the severity of the plaintiff s condition and obtain a surgical consult. The plaintiff also alleged that if the defendant had acted properly, the resection would not have amounted to such a large amount of necrotic bowel material. The defendant denied the allegations and maintained that there was no deviation from acceptable standards of care. The matter was tried. At the conclusion of the trial, the jury returned its verdict in favor of the plaintiff and against the defendant. The jury awarded the plaintiff the sum of $1,500,000 in damages. Durlacher vs. Leitner. Case no. CV ; Judge Herman J. Smith. Attorney for plaintiff: Keith Halpern of Keith Halpern Law Offices in Boston, MA. $840,000 CONFIDENTIAL RECOVERY Psychiatry Medical Malpractice Psychiatry Failure to properly monitor patient placed on new antidepressant medication Inadequate dosage of anti-depressant medication Suicide of 39-yearoldfatheroftwo. Confidential County, California In this medical malpractice matter, the plaintiff alleged that the defendant psychiatrist was negligent in failing to properly monitor the decedent after switching his anti-depressant medication. As a result, the plaintiff alleged the dosage was inadequate to control the patient s depression and he committed suicide. The defendant denied that there was any deviation from acceptable standards of care. The 39-year-old male decedent was the self-employed owner of a tile and flooring company. He earned an average of $235,000 per year. He was married with two young children, ages three years and two months. In March 2008, the decedent learned of an apparent disloyalty of two key employees of his company. He began sleeping poorly. He became depressed. On April 1, 2008, he saw his primary care physician who started him on anti-depressant medication. The decedent experienced hot flashes, night sweats and considerable anxiety on the medication and returned to his primary care physician again, approximately one month later. The physician noted that the decedent at his depth had suicidal ideation but this was transient. He is not suicidal now. The primary care physician referred the decedent to the defendant psychiatrist. The decedent first saw the psychiatrist on June 26, He was started on a different anti-depressant medication which made him feel groggy and floaty. He was told to discontinue the medication. He saw the defendant once again on July 16, 2008 and a different anti-depressant medication was prescribed. The defendant advised the decedent to return to the defen- Volume 27, Issue 6, June 2012

15 VERDICTS BY CATEGORY 15 dant s office in days for a follow-up. On August 6, 2008, the decedent committed suicide by a selfinflicted gunshot wound. The plaintiff brought suit against the defendant psychiatrist alleging that the psychiatrist was negligent in failing to monitor the decedent within a week to determine how he was feeling on the new medication and to make sure that the dosage was adequate to control the decedent s depression. The plaintiff further alleged that the defendant was negligent in providing a dosage that was inadequate to control the decedent s depression, which resulted in his suicide. The plaintiff contended that if the defendant would have seen the decedent within seven to 14 days of the new medication regime, the defendant would have appreciated the signs of increasing depression and suicidal ideation so as to prevent the suicide. The plaintiff also argued that informed consent was not obtained due to the decedent s mental state. The defendant denied the allegations. The defendant contended that the dosage of the anti-depressant medication was sufficient and that the standard of care did not require that the defendant see the patient again in seven to 14 days as alleged by the plaintiff. The defendant contended that it takes longer than that period of time for the medication to take effect. The parties mediated the plaintiff s claim and resolved the plaintiff s claim for the sum of $840,000. Plaintiff s psychiatry and psychopharmacology expert: Mark Zetin, M.D. from Irvine, CA. Plaintiff s psychopharmacology expert: Sheldon Preskorn from Kansas City, KS. Plaintiffs Doe vs. Defendant Roe Physician Attorney for plaintiff: Daniel M. Hodes of Hodes Milman Liebeck LLP in Irvine, CA. Attorney for defendant: Jeffrey Erickson of LaFollette Johnson in Riverside, CA. $3,500,000 CONFIDENTIAL RECOVERY Radiology Medical Malpractice Radiology Failure to timely diagnose and treat lung cancer Cancer when finally diagnosed deemed incurable. Santa Clara County, California In this negligence matter, the plaintiff contended that the defendant radiologist was negligent in misreading the patient s chest X -ray that would have disclosed Stage I lung cancer. By the time that a follow-up chest X -ray was performed two years later; the cancer had progressed and was deemed incurable. The defendant maintained that the chest X -ray was not misread and the suspicious lesion that is reflected in the original X -ray is not the tumor. The 37-year-old male plaintiff, an electrical engineer, presented to his doctor on September 24, 2009 with a four week history of coughing. The doctor ordered a chest X -ray that was read as normal. The doctor ordered over-the-counter medication for the cough and a post-nasal drip. On June 15, 2010, the plaintiff returned again complaining of coughing. The plaintiff reported coughing up blood. The plaintiff s doctor did not order a follow-up X -ray based upon the prior X - ray being read as normal. On September 7, 2010, the plaintiff was again seen by the doctor for complaints of coughing. Based on the negative X -ray no further diagnostic testing was performed. In early March 2011, the plaintiff suffered a collapsed lung. He was treated in the emergency room. At that point, he was diagnosed with Stage IV lung cancer with a two-year life expectancy. It was deemed incurable. The plaintiff brought suit against the defendant radiologist alleging that the radiologist was negligent in misreading the initial chest X-ray which showed a suspicious lesion. The plaintiff contended that the defendant should have reported the lesion with a recommendation to obtain a chest CT-scan. The plaintiff contended that if the cancer had been diagnosed in 2009, it would have been Stage I cancer which was curable. The plaintiff is married and has a five-year-old son. The defendant denied the allegations. The defendant contended that the chest X -ray was not misread. The defendant contended that the finding in question was most likely not the cancerous tumor although it was in the same neighborhood according to the defendants. The parties agreed to a confidential settlement of $3,500,000 to resolve the plaintiff s claim. Plaintiff s cancer expert: Barbara J. Gitlitz, M.D. from Los Angeles, CA. Plaintiff s economics expert: Patrick F. Mason, Ph.D. from San Francisco, CA. Plaintiff s pulmonary and critical care expert: Carl T. Boylan, M.D. from Los Angeles, CA. Plaintiff s thoracic surgery expert: Robert J. McKenna, Jr., M.D. from Los Angeles, CA. Plaintiff s vascular and interventional radiology expert: Myron Marx, M.D. from San Francisco, CA. Patient Doe vs. Doe Medical Group Attorney for plaintiff: Bradley M. Corsiglia of Corsiglia McMahon Allard in San Jose, CA. Attorney for defendant: withheld. National Jury Verdict Review & Analysis

16 16 VERDICTS BY CATEGORY $559,999 RECOVERY Surgery Medical Malpractice Surgery Negligent postoperative care Failure to consult with a critical care doctor or pulmonologist when the decedent began experiencing breathing difficulties following gastric bypass surgery Wrongful death of 28-year-old male. Harris County, Texas In this medical malpractice action, the estate of the decedent alleged that the defendant doctors and hospital were negligent in providing substandard care to the decedent when the decedent developed breathing difficulties two days after undergoing gastric bypass surgery. While the defendants treated the decedent s symptoms, they failed to find the cause of his breathing trouble and the decedent suffered a collapsed lung which led to cardiac arrest and death. The defendants all denied negligence. On November 12, 2007, the 28-year-old decedent was admitted to the defendant hospital for a Rouxen-Y bariatric surgery performed by the defendant, Thomas. On the second post-operative day, the decedent developed difficulty breathing and was extremely anxious. The defendant suspected a collapsed lung and consulted with the defendant, Lipson. After examining the decedent, the defendant, Lipsen, diagnosed the decedent with congestive heart failure, sleep apnea and restrictive lung disease. The decedent was treated with diuretics and respiratory treatments including Albuterol and Atrovent and a chest X-ray was ordered. The defendants failed to read the chest X-ray. For the next two days the decedent s breathing condition seemed to be improving. However, on November 17, 2007, the decedent began complaining of pain while breathing in and out. His oxygen saturation level was falling. Still, the defendants did not call a pulmonologist. The defendants ordered a CT-scan and the decedent was transported to the scan in a wheelchair. While attempting to get back into the wheelchair following his scan, the decedent collapsed to the floor. The decedent was found to be in cardiac arrest. Resuscitation proved futile and the decedent died 29 minutes later. The autopsy revealed that the decedent died from cardiac arrest caused by a large right pneumothorax filled with pleural fluid. The decedent is survived by a wife and a minor son. The defendant doctors were negligent in failing to properly treat the decedent, failing to consult with a critical care doctor or pulmonologist when the decedent experienced breathing difficulties, failing to properly and timely read the chest X-ray, and failing to properly assess, evaluate and treat the decedent. The defendants all denied all allegations of negligence and argued that the decedent s damages, if any, were caused by superseding causes not reasonably foreseeable by the defendants, and any act or omission by the defendants was not the cause of the plaintiff s damages. The parties settled for $559,999. Estate of Ricardo Torrez by Aracelly Torrez vs. Thomas Clifton M.D., Brian Lipsen M.D., and Renaissance Hospital Houston Inc. Case no ; Judge Steven Kirkland, Attorney for plaintiff: Brad Leigh of The Leigh Law Firm in The Woodlands, TX. Attorney for defendant: C Victor Haley of Fairchild, Price, Haley & Smith, L.L.P. in Nacogdoches, TX. $350,000 VERDICT Medical Malpractice Surgery Excessive force during colonoscopy Injury to spleen necessitating emergency splenectomy Complications include ARDS and pneumonia that substantially resolve Need for subsequent surgery to remove painful scar tissue Heightened risk of infection Significant scarring. Ocean County, New Jersey The plaintiff, in her early 50s, contended that the defendant general surgeon used excessive force during a colonoscopy, injuring the spleen and dictating an emergency splenectomy. The defendant denied negligence and contended that the plaintiff suffered a known complication. The plaintiff s expert gastroenterologist contended that the plaintiff s injury would not have occurred unless the defendant utilized excessive force. The evidence reflected that such an injury has only been reported to have occurred times in the medical literature. The plaintiff maintained that after the spleen was removed, she suffered a difficult course in the hospital. The plaintiff developed ARDS and pneumonia and also required a number of blood transfusions. The respiratory difficulties substantially resolved. The plaintiff further contended that she subsequently developed a significant amount of pain in the area of the incision and underwent surgery in which a mass of scar tissue was excised. The plaintiff also stressed that the removal of the spleen permanently Volume 27, Issue 6, June 2012

17 VERDICTS BY CATEGORY 17 leaves her at increased risk of infection. The plaintiff further maintained that the scarring is unsightly and permanent in nature. The jury found for the plaintiff and awarded $350,000. Brooks vs. Lawinski. Docket no. OCN-L ; Judge David Millard, Attorney for plaintiff: Gregory B. Noble of O Connor, Parsons & Lane, L.L.C. in Westfield, NJ. Plaintiff s gastroenterological expert: Maxwell Chait, MD from Hartsdale, NY. DEFENDANT S VERDICT Medical Malpractice Surgery Plaintiff consents to surgical debridement of necrotic tissue on the left index finger and the defendant performs a fingertip amputation Failure to obtain informed consent Distal phalanx amputation Eventual amputation of left index finger. Alameda County, California In this medical malpractice action, the plaintiff alleged that the defendant doctor committed medical battery against the plaintiff when he performed a partial amputation on the plaintiff s left index finger. The plaintiff contended that he only consented to surgical debridement. The defendant argued that when he performed the debridement there was deeper necrotic tissue than originally thought necessitating a distal phalanx amputation in order to try and save the finger. Unfortunately, too much dead tissue had spread through the finger and several days after the tip amputation, a full finger amputation was required. On May 26, 2009, the plaintiff consented to a distal phalanx debridement procedure to be performed by the defendant doctor in order to remove dead tissue on the tip of the plaintiff s finger. During the debridement, the defendant doctor opted to amputate the distal tip of the plaintiff s left index finger. The plaintiff alleged that he did not consent to the distal tip amputation and that the defendant s actions in performing the amputation without the plaintiff s consent constituted medical battery. As a result, the plaintiff suffered loss of the distal tip on the left index finger leading to eventual amputation of the left index finger several days after the amputation of the tip, and severe emotional distress. The defendant denied all liability and argued that plaintiff had a long history of vascular problems with necrotic digits due to the plaintiff s history of sickle cell anemia. Several fingers had already been debrided and some partially amputated due to the plaintiff s condition. When the defendant performed the debridement he discovered necrotic tissue deep in the finger and removed the distal tip in an attempt to keep the necrotizing tissue from spreading. Unfortunately, the plaintiff s ischemia progressed despite the amputation and a few days later an amputation to the mid-phalanx was performed. All care provided to the plaintiff was proper and in accordance with medical standards for which the plaintiff gave his informed consent. The jury found no negligence on the part of the defendant. DannyTimsvs.JeroldZ.Kaplan,M.D.Caseno. RG ; Judge Robert McGuiness, Attorney for plaintiff: Pro Se. Attorney for defendant: Robert Hodges of McNamara, Ney, Beatty, Slattery, Borges & Brothers, LLP in Walnut Creek, CA. $22,000,000 VERDICT PRODUCT LIABILITY Asbestos Asbestos Two verdicts in consolidated trial against Goodyear Workers exposed to gaskets with asbestos in 1960s and 1970s Wrongful deaths from lung cancer. Supreme Court of New York, New York County This consolidated trial resolved the claims of two families pursuing damages for the loss of family members to asbestos-related illnesses. The defendant companies denied liability for the deaths. The deceased men in this matter, Eugene M. and Walter K. both died of lung cancer. Walter K. was exposed to asbestos-containing gaskets repeatedly on the job site between 1969 and 1973 when he worked a steamfitter. Eugene Mac M. was exposed to asbestos-containing gaskets while working as a heavy equipment engine mechanic in the late 1960s and early 1970s. Both men perished from lung cancer in Both men were former smokers. National Jury Verdict Review & Analysis

18 18 VERDICTS BY CATEGORY The families of the deceased filed suit in the New York County Division of the Supreme Court of New York on toxic tort actions. The cases were consolidated in that court, addressing the defendants Goodyear Tire and Rubber Company and Goodyear Canada. The plaintiff asserted that the gaskets that contained asbestos were products of the defendant companies, and that this exposure was the cause of the deceased men s fatal cancer. After a five week trial, the jury returned a verdict for both of the deceased men. The jury awarded $8.5 million in pain and suffering damages to the deceased s family. However, they assigned Goodyear Tire and Rubber and Goodyear Canada 7% and 5% liability respectively for the deceased s cancer. Regarding Walter K., the jury awarded $11.6 million for pain and suffering, with Goodyear Tire and Rubber assigned 27% liability and Goodyear Canada 18%. The jury also awarded the plaintiff Dorothy K. $1.9 million for the loss of her husband s consortium due to his death from lung cancer. Plaintiff s hematology & oncology expert: James Strauchen from New York, NY. Plaintiff s occupational health expert: Barry Castleman from Garrett Park, MD. Defendant s industrial hygienist expert: John Spencer from Columbia, MD. Defendant s pulmonology expert: Benjamin Safirstein from Montclair, NJ. Dorothy A. Koczur, Individually and as Executrix for the Estate of Walter S. Koczur; Estate of Eugene McCarthy vs. The Goodyear Tire And Rubber Company And Goodyear Canada. Index no / ; Judge Martin Shulman. Attorney for plaintiff: Michael Fanelli & Daniel Kraft of Weitz & Luxenberg, P.C. in New York, NY. Attorneys for defendant Goodyear Tire and Rubber & Goodyear Canada: James R. Lynch & Jennifer Childs of Lynch Daskal Emery LLP in New York, NY, and Richard D. Schuster of Vorys, Sater, Seymour and Pease LLP in Columbus, OH. Defective Design DEFENDANT S DISPOSITION FOLLOWING DISMISSAL BY PLAINTIFF OF CASE ON MORNING OF TRIAL Product Liability Defective Design Plaintiff alleges malfunction of seatbelt and failure of airbags to deploy during collision. Beauregard Parish, Louisiana In this defective design claim, the plaintiff alleged that the defendant manufacturer was negligent in its design of airbags and seat belts in its 1988 Hyundai Elantra. As a result of the allegedly defective equipment, the plaintiff sustained serious injuries when her vehicle was struck by another vehicle that had disregarded a stop sign. The defendant denied the allegations and maintained that there were no defects in the equipment. The plaintiff was operating her 1988 Hyundai Elantra motor vehicle on the date of the collision when her vehicle collided with an SUV that had failed to stop for the stop sign controlling the intersection. As a result, the plaintiff s vehicle obliquely struck the SUV. The plaintiff contended that the front air bags in the plaintiff s vehicle did not deploy as a result of the collision causing the plaintiff to sustain serious lower extremity injuries that required multiple surgeries. The plaintiff alleged that the failure of the airbags to deploy coupled with a defect in her seat belt that allowed her body to move forward during the collision resulted in her injuries. The plaintiff brought suit against the defendant car manufacturer alleging defective design of the front air bags and the seat belts which caused her to sustain serious injuries. The defendant denied the allegations. The defendant contended that the accident forces caused by the side impact were insufficient to exceed the deployment threshold for the driver s airbag, therefore it did not engage. This was confirmed by detailed accident reconstruction testing. Moreover, the defendant contended that the plaintiff was not wearing her seat belt at the time of the collision. The defendant also argued that the evidence disclosed that both vehicles braked prior to the impact. On the morning that the trial was set to begin, the plaintiff dismissed her complaint resulting in a favorable resolution for the defendant. Krista Rigmaiden, et al. vs. Hyundai Motor America, et al. Case no. C99-846A, Attorney for plaintiff: Terreil D. Fowler in Lake Charles, LA. Attorney for defendant: Robert W. Maxwell of Bernard Cassisa Elliott & Davis in Covington, LA. Attorney for defendant: Thomas N. Vanderford, Jr. of Hyundai Motor America in Costa Mesa, CA. Volume 27, Issue 6, June 2012

19 VERDICTS BY CATEGORY 19 SUMMARY JUDGMENT FOR THIRD-PARTY DEFENDANT SELLER Product Liability Defective Design Claimed defective metal flattening machine Degloving crush and burn injury to left hand Distal hand amputation Action for indemnification. U.S. District Court - Middle District of FL This action stemmed from a serious hand injury sustained by the plaintiff while working on a metal-flattening machine at Nanotec Metals in Lakeland, Florida. The plaintiff brought a onecount complaint against the seller of the machine, Galaxie Corporation alleging that Galaxie knowingly sold a machine without proper safety guards. Galaxie then brought a third-party claim against Nanotec Metals, Inc. (the plaintiff s employer) alleging breach of contract, negligence and common law indemnification/contribution. Nanotec makes aluminum boron carbide composite metal for the storage of spent nuclear fuel. The plaintiff was working near a HERR VOSS Roll Leveler on March 6, 2009 to flatten metal sheets placed in a hot oven. While transferring a hot sheet of metal into the roll leveler, he would try to wipe off as much debris (metal shavings) as possible. In doing so, he got his left hand stuck in the front pinch rollers. He sustained a crush injury, de-gloving, metacarpal fracture at the index and middle finger knuckles, and second and third degree burns. The plaintiff underwent five surgeries but, ultimately, all five fingers were removed along with a majority of the skin and muscle in the palm. The result was a distal left hand amputation. He was subsequently fitted with a prosthetic. The defendant, Galaxie Corporation, sought indemnification pursuant to an alleged contract provision entitled Buyer Assumption Of Risk And Indemnification Of Seller which was contained in Supplementary Terms And Conditions Of Sale attached to the invoice when Nanotec purchased the roll leveler from the Galaxie warehouse. The defendant, Galaxie, moved for summary judgment against Nanotec arguing that the contract validly and unambiguously required Nanotec to indemnify Galaxie against damages stemming from Galaxie s negligence that resulted in the injury to the plaintiff. Nanotec counter-moved for summary judgment against the defendant, Galaxie Corporation, contending that the parties did not enter into an enforceable sales contract and, even if there were a contract, the buyer of the machine, Nanotec, had no obligation to indemnify Galaxie for Galaxie s own negligence. Nanotec maintained that the assumption of risk and indemnification language did not clearly and expressly state that the buyer Nanotec agreed to indemnify the seller Galaxie for its own wrongful acts. The court held that, regardless of whether there was an enforceable sales contract, there was no clear or unequivocal language in the provision that the buyer Nanotec intended to indemnify Galaxie for Galaxie s own negligence to third-parties. The trial court held that Galaxie s third-party claims against Nanotec for negligence and contribution were procedurally improper and, therefore, the court granted the thirdparty defendant (buyer) Nanotec s motion for summary judgment. The case against the remaining defendant Galaxie was subsequently settled. Mendez-Garcia vs. Galaxie Corporation vs. Nanotec Metals, Inc. Case no. 8:10-CV T-24-EAJ; Judge Susan C. Bucklew, Attorney for plaintiff Mendez-Garcia: Kevin B. Woods of Harmon, Woods, Parker, Hendricks & Abrunzo, P.A. in Tampa, FL. Attorneys for defendant /third party plaintiff Galaxie Corporation: Ed Longosz of Eckert, Seamans, Cherins & Mellot, LLC in Washington, DC, and Howard Scholl of Cole, Scott & Kissane, P.A. in Tampa, FL. Attorney for defendant (third party) Nanotec Metals, Inc.: Paul B. Fulmer, III of Rissman, Barrett, Hurt, Donahue & McLain in Tampa, FL. $27,500 RECOVERY Product Liability Manufacturing Defect Defendant failed to use due care in the manufacturing and design of swimsuit Failed to test and inspect the swimsuit Mesh lining of swimsuit entrapped minor plaintiff s skin Injuries, surgery, and medical expenses. Harris County, Texas In this product liability case, the plaintiff alleged that she purchased a swimsuit designed and manufactured by the defendants for her threeyear old son. The plaintiff alleged that she put the swimsuit on her son and took him to a water park. The plaintiff contended that when the minor plaintiff was coming down the water slide, the mesh lining inside the swimsuit entrapped his skin. The plaintiff contended that the swimsuit was defective and unsafe for its intended purposes, and the defendants failed to use due care in the manufacturing and design of the swimsuit. The plaintiff contended that the defendants failed to test and inspect the swimsuit. As a result of the defendant s negligence, the minor plaintiff had to be taken to the emergency room to have the swimsuit removed and had to undergo surgery. The defendant denied the plaintiffs allegations. National Jury Verdict Review & Analysis

20 20 VERDICTS BY CATEGORY The plaintiffs alleged that on June 15, 2009, the plaintiff purchased an Aquastar Swim Safe swimsuit for her son, manufactured by the defendants, from a local Wal-Mart store in Spring, Texas. On that day, the plaintiff put the swimsuit on her son and took the minor plaintiff to an amusement park. The plaintiff alleged that when the minor plaintiff was coming down a water slide, the mesh lining inside the swimming trunks entrapped his skin. The minor plaintiff had to be taken to the emergency room to have the swimsuit removed. The case settled prior to trial for $27,500. Janet Contreras, Individually and A/N/F of Seth Contreras, a minor vs. California Innovations (US) Inc. and Swimsafe, Inc. Case no ; Judge Joseph J. Halbach, Jr., Attorney for plaintiff: Kelly E. Cook of Kennedy Hodges, LLP in Houston, TX. Attorney for defendant: Don Lighty of Stevens, Baldo, Freeman & Lighty, LLP in Beaumont, TX. $55,000 RECOVERY MOTOR VEHICLE NEGLIGENCE Auto/Bicycle Collision Motor Vehicle Negligence Auto/Bicycle Collision Defendant strikes the minor plaintiff while the minor bicyclist crosses the street en route to school Traveling at an unsafe rate of speed for conditions Skull fracture Left leg fracture Emotional anxiety. Canandian County, Oklahoma In this vehicular negligence action, the plaintiffs alleged that the defendant was negligently traveling too fast for conditions when she came upon the minor crossing the street on his bike and struck him. The defendant denied being negligent andarguedthatitwastheactionsoftheminor that caused the collision. On March 25, 2008, the seven-year-old male plaintiff was riding his bicycle to school. He was attempting to cross West Forster Drive in the City of Mustang, Oklahoma when he was struck by the female defendant driver. The minor plaintiff was thrown onto the hood of the defendant s car and then to the ground when the defendant came to stop. The plaintiff alleged that the defendant driver was negligent in driving at an unsafe speed for the conditions and the obstructed view, failing to keep a proper lookout, failing to stop within the assured clear distance and failing to use her brakes or the steering mechanism to avoid the collision. In addition, the plaintiffs claimed that the defendant car owner negligently entrusted the vehicle to the defendant driver. Consequently, the minor suffered a skull fracture and a left leg fracture. The defendant denied all allegations of negligence and maintained that the incident was caused by the negligence of the minor plaintiff. The parties settled for a total of $55,000. Mathew Patrick Laleff a minor by and through his png Thomas and Jamie Laleff vs. Brittany and John McInturff. Case no. CJ ; Judge Gary E. Miller, Attorney for plaintiff: John A. Alberts of Alberts and Associates in Oklahoma City, OK. Attorney for defendant: Steven Daniels of Lawson, King & Shelton, PLLC in Oklahoma City, OK. $1,000,000 RECOVERY Auto/Truck Collision Motor Vehicle Negligence Auto/Truck Collision Wide 18-wheeler carrying farm equipment hits plaintiff car head-on, ripping off driver s side door Decedent is ejected from vehicle Wrongful death. Lee County, South Carolina In this action for wrongful death, the plaintiff alleged that the defendants negligence proximately caused the collision which resulted in her husband s death. The defense not only denied the allegations of negligence, but also argued that the decedent was liable for comparative negligence. On January 6, 2009, the 62-year-old decedent and the plaintiff (his wife of 30 years) were driving on Cale Yarborough Highway, a two lane road. At the same time, the defendants were traveling in the opposite direction on the same highway carrying a wide load consisting of farm equipment which protruded into Volume 27, Issue 6, June 2012

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