SUMMARIES WITH TRIAL ANALYSIS

Transcription

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 [email protected] 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

21 VERDICTS BY CATEGORY 21 oncoming traffic s lane. The low boy 18-wheeler which was carrying the farm equipment was preceded by a properly marked escort vehicle with a rotating light and wide load banner. Despite these markings, the two vehicles collided and the decedent was thrown from his vehicle when the driver s side door was ripped from his vehicle. He died at the scene of the collision. The plaintiff, who was in the passenger seat at the time of the collision, suffered minor cuts and bruises and post-traumatic stress disorder from watching her husband die. The plaintiff sued the trucking company who was transporting the farm equipment, the owner of the farm equipment, and the drivers of the escort vehicle and low boy 18-wheeler. Each was accused of negligence. In addition, the plaintiff specifically accused the defendants of numerous safety violations, including the violation of South Carolina traffic laws and Department of Transportation Guidelines referring to the movement of oversized loads. Among those accusations, the plaintiff highlighted the defendants failure to prevent the farm equipment from encroaching into the lane occupied by oncoming traffic and the defendants failure to utilize both a properly trained escort driver and a properly trained truck driver. The plaintiff also alleged a joint enterprise between the trucking company and the owner of the combine insofar as the owner was participating in the transport. The defense not only denied the allegations of negligence, but they also denied the existence of joint enterprise and argued comparative negligence. In so doing, the defendants asserted that they had a properly marked escort vehicle with a rotating light and wide load banner. In addition, the defense stated that the escort driver was waving his arm out the window trying to alert the decedent to move his vehicle over. Moreover, the defense countered the plaintiff s accusations of safety violations by claiming that they were exempt from the permitting, flagging and safety rules because they were transporting an implement of husbandry for the purposes of custom harvesting. They also argued that the farm equipment could not have been transported without encroaching into the oncoming lane of travel because it was over 15 feet wide, while their lane of travel was only 12 feet wide. Thus, they fell within the exception to the law prohibiting encroachment into the oncoming lane when the road is not of a sufficient width. In addition, the defense highlighted the decedent s failing health and poor eyesight as factors which contributed to the collision. The decedent suffered from a myriad of health problems which required him to be on dialysis three days a week and caused him to be legally blind in one eye. The decedent also had his right foot amputated in 2005; requiring him to drive his vehicle using his left foot to operate the pedals. Despite these health issues, he had a valid driver s license which was last renewed and certified by a doctor in Shortly after the jury was seated, on April 30, 2012, this matter settled with a $1,000,000 recovery for the plaintiff. Plaintiff s accident reconstruction expert: Woody Poplin from Charleston, SC. Plaintiff s conspicuity and human factors expert: Michael Maddox from Madison, NC. Plaintiff s trucking and transportation safety expert: David Dorrity from Greenville, SC. Defendant s trucking and transportation safety expert: Barry Brunstein from Tampa, FL. Annie Ruth Ham, PR of Estate of Willie J. Ham vs. Sparrow & Kennedy Tractor Co., Inc., Johnny W. Smith and William G. Kelley. Case no CP ; Judge Ralph F. Cothran, Jr., Attorneys for plaintiff: John D. Clark and Sharon Clark of Clark Law Firm in Sumter, SC, and David B. Yarborough, Jr., William E. Applegate, IV and Douglas E. Jennings of Yarborough Applegate Law Firm in Mount Pleasant, SC. Attorney for defendant Sparrow & Kennedy Tractor Co. and Johnny Smith: Thomas C. Salane of Turner, Padget, Graham & Laney, P.A. in Columbia, SC. Attorney for defendant William Kelley: George V. Hanna, IV of Howser, Newman & Besley, LLC in Columbia, SC. Intersection Collision $7,932 VERDICT Motor Vehicle Negligence Intersection Collision Plaintiff s vehicle is struck as it proceeds through an intersection Failure to yield the right-of-way Injuries to cervical, thoracic and lumbar spine. Oklahoma County, Oklahoma In this vehicular negligence case, the plaintiff alleged that she suffered injuries to her neck and back when the defendant struck the plaintiff s vehicle as the plaintiff traveled through an intersection with the right-of-way. The defendant denied liability in causing the collision and argued that the collision was the result of negligent acts by the plaintiff. On November, 10, 2009, at the intersection of NW 22nd Street and Classen Boulevard in Oklahoma City, Oklahoma the female plaintiff alleged that she sustained injuries to her head, neck and back when she was proceeding lawfully through the intersection and was struck by the defendant driver. The plaintiff claimed that the defendant was negligent in failing National Jury Verdict Review & Analysis

22 22 VERDICTS BY CATEGORY to yield the right-of-way, failing to properly stop at a stop sign and failing to devote proper attention to driving. The defendant denied that his actions caused the accident and argued that the plaintiff negligently entered the intersection causing the collision. Further, the defendant denied that the plaintiff was injured in the accident and argued that her injuries were preexisting. Sharonda Knight vs. Michael Ott. Case no. CJ ; Judge Daniel Owens, Attorney for plaintiff: Kevin Locke of Taylor Lucas Locke & Corbin in Oklahoma City, OK. Attorney for defendant: Brian Thomas Downing of Dobbs & Middleton in Oklahoma City, OK. The jury found for the plaintiff and awarded $7,932. $1,200,000 RECOVERY Multiple Vehicle Collision Motor Vehicle Negligence Multiple Vehicle Collision Three trucks collide in traffic Defendants combined negligence alleged to cause back and ankle injury. Pomona County, California In this matter for motor vehicle negligence, the plaintiff alleged that the defendants negligence resulted in significant back and ankle injury. The defense denied the allegations and argued comparative negligence. On April 6, 2010, the 50-year-old plaintiff was operating a 2010 Freightliner big rig truck on eastbound SR- 60. When he slowed to a stop with the rest of traffic, he was suddenly struck from behind and forcefully jolted forwards and backwards due to the impact. The vehicle that struck him was a 2009 Kentworth which was owned and operated by BP Products North America, Inc. The defendant driver, a BP employee, was pushed into the plaintiff s truck when a third vehicle owned and operated by the defendant Americus Logistics failed to stop with traffic. Immediately after the collision, the plaintiff complained to paramedics of back and ankle pain. Thus, he was transported to St. Jude Medical Center where it was determined that he had suffered an ankle fracture and a 5mm disc bulge at the L5-S1 vertebrae. As a result, the plaintiff underwent a lumbar discectomy and fusion, as well as ankle surgery; sustaining approximately $280,000 in medical expenses. The plaintiff sued the defendant drivers and their employers based on the theories of negligence and vicarious liability, respectfully. The defense denied the allegations and also argued comparative negligence. Specifically, the defendants argued that the plaintiff s trailer brakes were not properly functioning. Thus, the defense asserted that the plaintiff failed to alert the defendant driver immediately behind him that he was slowing down. The defense was able to provide drive-cam evidence to support this claim. In addition, the defense claimed that the plaintiff s ankle injury was proximately caused by a defect in his own driver s seat causing it to become dislodged during impact and to slide forward. Finally, the defense challenged the existence of a lumbar injury insofar as there was no evidence to show that the plaintiff had received treatment until several months following the collision. This matter ultimately settled with a $1,200,000 recovery for the plaintiff. Plaintiff s accident reconstruction expert: Alvin Lowi, III, PE from El Segundo, CA. Plaintiff s economics expert: Peter Formuzis, Ph.D. from Santa Ana, CA. Plaintiff s orthopedics expert: P. Richard Emmanuel, M.D. from Culver City, CA. Plaintiff s pain management expert: Sanjog Pangarkar, M.D. from Los Angeles, CA. Plaintiff s truck safety expert: V. Paul Herbert, CPSA from Quincy, CA. Plaintiff s vocational rehabilitation expert: Richard H. Anderson, M.S., C.V.E., C.R.C., C.D.M.S. from Westminster, CA. Plaintiff s vocational rehabilitation expert: Rick A. Sarkisian, Ph.D. from Fresno, CA. Defendant s accident reconstruction, biomechanics, human factors expert: Ken Solomon Ph.D. from Woodland Hills, CA. Defendant s economist expert: Ted Vavoulis from Los Angeles, CA. Defendant s forensic automotive expert: Thomas Lepper from Long Beach, CA. Defendant s neurosurgery expert: Isaac Yang, M.D. from Los Angeles, CA. Defendant s orthopedics expert: Milton Legome, M.D. from Orange, CA. Defendant s radiology expert: Richard Rhee, M.D. from Corona Del Mar, CA. Defendant s video enhancement expert: George Reis from Fountain Valley, CA. Defendant s vocational rehabilitation expert: Ed Workman from San Clemente, CA. Victor Marquez vs. Americus Logistics, British Petroleum. Case no. KC ; Judge Honorable Robert Dukes, Attorneys for plaintiff Victor Marquez: Spencer Lucas, Juan Dominguez and Tom Schultz of Panish Shea & Boyle LLP in Los Angeles, CA. Attorney for defendant Americus Logistics: Marc Hawkins of Law Offices of Marc W. Hawkins in Diamond Bar, CA. Attorney for defendant BP: George Mallory of Law Offices of George L. Mallory & Associates in Los Angeles, CA. Volume 27, Issue 6, June 2012

23 VERDICTS BY CATEGORY 23 $538,298 VERDICT Motor Vehicle Negligence Multiple Vehicle Collision Defendant driver allegedly makes improper lanes change in response to being cut off and strikes plaintiff Injuries, damages and medical expenses. Dallas County, Texas In this motor vehicle negligence case, the plaintiff alleged that the defendant driver failed to keep the vehicle he was driving under control, failed to timely apply his brakes, and made an improper change of lanes, which caused a collision with the plaintiff s vehicle. As a result of the defendant s negligence, the plaintiff sustained injuries, damages and medical expenses. The defendant denied the plaintiff s allegations, and contended that the collision was unavoidable. The defendant contended that the driver of a black vehicle committed criminal negligence and cut directly in front of the defendant driver, which caused the collision with the plaintiff. The plaintiff alleged that on October 2, 2008, the defendant driver, while in the course and scope of his employment, negligently caused a collision with the DEFENDANT S VERDICT Motor Vehicle Negligence Rear End Collision Defendant strikes the plaintiff s vehicle as it slows for traffic Failure to make timely application of brakes Cervical and thoracic sprain Numbness andtinglingintherighthandandrightfoot. Alameda County, California In this vehicular negligence action, the plaintiff alleged that the defendant was negligent when she failed to slow for traffic and struck the rear of the plaintiff s vehicle. The defendant denied causingtheaccidentandarguedthatitwasthe actions of others that caused the collision. On October 23, 2009, the plaintiff was operating her vehicle eastbound on I 580 in Livermore, California. As the plaintiff was slowing her vehicle for traffic her vehicle was struck in the rear by the defendant. The plaintiff s allegations of negligence against the defendant were failing to have vehicle under proper and adequate control, failing to maintain an assured clear distance, failing to keep a proper lookout and failing to timely apply the brakes. Rear End Collision plaintiff s vehicle. The vehicle that collided with the plaintiff s vehicle was owned by the defendant TXI. The defendant driver was an employee of defendant TXI. The defendant alleged that on the day of the collision, a black vehicle was recklessly driving when it suddenly swerved and cut off the mixer truck being driven by defendant driver. The conduct of the driver of the black vehicle forced the defendant driver to take evasive action in response to a sudden emergency and the collision in question followed. The jury awarded the plaintiff a total of $538,298. Christopher D. Knight vs. Getral Dwayne Gray and TXI Operations, LP. Case no. CC A; Judge D Metria Benson, Attorney for plaintiff: Jack B. Cowley of The Law Offices of Frank L. Branson, PC in Dallas, TX. Attorney for defendant: Mark Stradley of The Stradley Law Firm in Dallas, TX. As a result of the collision, the plaintiff suffered sprain and strain injuries to her cervical and thoracic spine, right shoulder sprain and tingling and numbness in the right hand and right foot. The defendant denied all allegations of negligence and argued that the incident in question was caused by the actions of others over whom the defendant had no control. Additionally, the defendant denied that the plaintiff sustained a serious or permanent injury in the case. The jury found that the defendant was negligent, but that her negligence was not a substantial factor in bringing harm to the plaintiff. Sandy Torres vs. Johanna Graciela Romero. Case no. VG ; Judge Jon S. Tigar, Attorney for plaintiff: Dan Beatty in Redwood City, CA. Attorney for defendant: Dominic Polito of Law Offiice of Mark T. Lobre in San Francisco, CA. DEFENDANT S VERDICT Motor Vehicle Negligence Rear End Collision Defendant strikes the plaintiff s vehicle as the plaintiff brings her vehicle to stop Following too closely Cervical, thoracic and lumbar sprain and strain injuries Headaches Damages only. Alameda County, California In this vehicular negligence action, the plaintiff alleged that the defendant driver was negligent in following the plaintiff s car too closely and therefore could not stop his vehicle before striking the plaintiff in the rear. The defendant admitted liability in causing the collision, but argued that the plaintiff was not injured in the very minor collision. National Jury Verdict Review & Analysis

24 24 VERDICTS BY CATEGORY On August 22, 2007, the plaintiff was operating her vehicle on Interstate 80 in Emeryville, California. As the plaintiff was bringing her vehicle to a stop in accordance with traffic conditions, her vehicle was struck in the rear by the defendant. The plaintiff alleged that the defendant driver was negligent for following too closely, failing to properly and timely apply the brakes, failing to maintain an assured clear distance and failing to have vehicle under proper and adequate control. As a result of the collision, the plaintiff suffered sprain and strain injuries to her cervical, thoracic and lumbar spine, as well as recurring migraine headaches. The defendant admitted liability in striking the rear of the plaintiff s vehicle but argued that the impact was very minor and at a slow speed. The defendant contended that the plaintiff was not injured in the collision and that the plaintiff had a significant history of neck and back complaints. The jury found that the defendant s negligence was not a factual cause of harm to the plaintiff. Kristin Cato vs. Melvin Haynes. Case no. RG ; Judge Marshall Whitley, Attorney for plaintiff: Wayne Collins of Toschi Sidran Collins & Doyle in Oakland, CA. Attorney for defendant: Matthew J. Witteman of Law Offices of Matthew J. Witteman in San Rafael, CA. DEFENDANT S VERDICT Motor Vehicle Negligence Rear End Collision Two separate rear end collisions consolidated into one case Failure to maintain an assured clear distance Cervical disc injuries Cervical radiculopathy. Alameda County, California The plaintiff in this consolidated action argued that she suffered an exacerbation of a prior cervical fusion and additional sprain and strain injuries to her cervical spine when on two separate occasions her vehicle was struck in the rear. The plaintiff sued both of the drivers who struck her vehicle and the cases were consolidated into one action. The defendants denied all allegations of negligence and argued that the plaintiff did not suffer any injuries in the collisions. On February 19, 2008, the female plaintiff was traveling on Eastshore Freeway in Oakland, California, when her vehicle was struck in the rear by the defendant. In August of 2008, the plaintiff was involved in another rear end collision this time with the male defendant. In each case the plaintiff claimed that the defendants were negligent in operating their vehicles at an excessive and dangerous rate of speed, failing to keep a proper lookout and failing to maintain an assured clear distance. The two cases were consolidated and went to trial. As a result of the collisions, the plaintiff suffered cervical disc injuries, including the aggravation of prior cervical disc fusion and right arm radicular symptoms. The defendants denied all allegations of negligence and argued that the plaintiff was not injured in either accident. The jury found that the male defendant was negligent, but found that his negligence was not a substantial factor in bringing harm to the plaintiff. The jury found no negligence against the female defendant. Jodi Michael Chester vs. Elizabeth Rose Yandrasits Kienzle and Richard McCauley. Case no. RG ; Judge Gail Brewster Bereola, Attorney for plaintiff: James F. Costello of Law Offices of James F. Costello in Mill Valley, CA. Attorney for defendant: Milan Yancich of Philip M. Andersen & Associates in Pleasanton, CA. Attorney for defendant: David Wei Chen in Alameda, CA. DEFENDANT S VERDICT Motor Vehicle Negligence Rear End Collision Plaintiff slows for traffic on an on-ramp when hit in the rear by defendant Full thickness tear of left rotator cuff Damages only. Oklahoma County, Oklahoma In this rear end negligence action, the plaintiff suffered a tear of her left rotator cuff when her vehicle slowed in order to merge with traffic and her vehicle was struck in the rear by the defendant. The defendant admitted striking the rear of the plaintiff s vehicle, but argued that the plaintiff was not injured in the collision. On December 20, 2006, the female plaintiff was traveling on a freeway entrance ramp in Cleveland, Oklahoma. As she slowed her vehicle waiting to merge with traffic, the plaintiff s vehicle was struck by the defendant who was traveling directly behind the plaintiff. The plaintiff claimed the defendant negligently operated his motor vehicle. The plaintiff felt pain and soreness in her left shoulder but did not believe she was seriously injured. Over the next several days the pain increased and the plaintiff sought treatment with her family doctor. After several months of conservative treatment, the symptoms persisted and the plaintiff was eventually diagnosed with Volume 27, Issue 6, June 2012

25 VERDICTS BY CATEGORY 25 a full thickness tear of the left rotator cuff. The defendant admitted liability in causing the collision, but argued that the plaintiff s shoulder injury was not causally related to the accident. The jury returned a verdict for the defendant. Anita Golden vs. Steven Smola. Case no. CJ ; Judge Tom A. Lucas, Attorney for plaintiff: John D. Coury of Haiges & Coury in Oklahoma City, OK. Attorney for defendant: Alisa Shaddix White in Oklahoma City, OK. $13,000 VERDICT Sideswipe Collision Motor Vehicle Negligence Sideswipe Collision Defendant strikes the side of the plaintiff s vehicle while attempting to merge with traffic Neck and back disc injuries Shoulder and knee sprains Damages only. Alameda County, California The plaintiff in this vehicular negligence case was traveling with the right-of-way in the right travel right when the defendant struck the side of the plaintiff s car as the defendant attempted to merge from an on ramp into the travel lane. The defendant admitted liability in causing the collision, but denied that the plaintiff was injured in the accident. On July 30, 2009, the 39-year-old female plaintiff was traveling southbound. At the same time, the defendant was attempting to merge with traffic coming in from an entrance ramp on the right when the defendant struck the side of the plaintiff s car. As a result of the collision, the plaintiff suffered cervical and lumbar inter-segmental dysfunction, cervicalgia, right shoulder sprain, right knee sprain and headaches. The allegations against the defendant contained in the plaintiff s complaint were failing to maintain a proper and adequate lookout, failing to properly merge with traffic and failing to have vehicle under proper and adequate control. The defendant admitted liability in causing the accident, but argued that the plaintiff was not seriously or permanently injured in the accident. The jury awarded the plaintiff $3,475 in past medical expenses and $9,525 in past pain and suffering. Katrina Lopez vs. Atul Tandon. Case no. RG ; Judge Kenneth Mark Burr, Attorney for plaintiff: John Mejia of Sranton Law Firm in Concord, CA. Attorney for defendant: Richard Colombatto of Stratman, Patterson & Hunter in Oakland, CA. PREMISES LIABILITY Fall Down $807,795 GROSS VERDICT REDUCED BY 20% COMPARATIVE NEGLIGENCE Premises Liability Fall Down Failure of auto body shop to arrange for snow removal during weekend Slip and fall Ankle fractures Surgery Need for cane. Essex County, New Jersey The plaintiff, in her mid-30s, contended that the defendant, who owned the body shop for approximately 50 years, negligently failed to either arrange for a snow removal contractor over the weekend or conduct adequate inspection and maintenance itself after it closed at noon on Saturday. The plaintiff contended that several inches fell on Saturday afternoon and that over the weekend, thick and slippery ice formed, resulting in her slipping and falling Monday morning. The defendant contended that the plaintiff failed to make adequate observations and was comparatively negligent. The plaintiff elicited testimony from the defendant that no inspections were made between the time the business closed at noon on Saturday until it opened on Monday. The plaintiff also got the defendant to testify that when he arrived on Monday after the incident occurred, the ice was very thick and that he needed a sledge hammer to break up portions of it. The plaintiff suffered a trimalleolar fracture of the right ankle and underwent surgery involving the insertion of nine screws and a rod. The plaintiff also contended that she will permanently need a cane to walk. National Jury Verdict Review & Analysis

26 26 VERDICTS BY CATEGORY The plaintiff, who had previously worked as a pharmaceutical marketing representative earning about $110,000, contended that she can no longer do the required travel and can no longer work in this field. The plaintiff contended that she was out of work for two years, went through vocational rehabilitation, and subsequently obtained a job as a counselor at a private college, earning approximately $35,000 per year. The plaintiff made future income claims that exceeded $2,000,000. The defendant denied that the plaintiff s claims should be accepted or that she sustained future income losses. The defendant pointed out that a month or so before the fall, the plaintiff had resigned from the pharmaceutical company because she believed that a change in leadership negatively impacted her job security. The plaintiff had sought to do consulting work and in the approximate one-month period that preceded the fall, she earned approximately $3,000. The jury found the defendant 80% negligent, the plaintiff 20% comparatively negligent and rendered a gross award of $807,975, including $650,000 for pain and suffering, $150,000 for past lost wages, $0 for future lost income and $7,975 for medical expenses. Frankfort vs. Ferrara s Auto Body. Docket no. ESX-L ; Judge W. Hunt Dumont, Attorney for plaintiff: Christopher T. Howell of Law Offices of Christopher T. Howell in Bloomfield, NJ. $500,000 RECOVERY Premises Liability Fall Down Plaintiff delivery person falls down flight of country club stairs Plaintiff contends employee hoses down stairs at time of fall Plaintiff alleges code violations relating to tread width and riser height Lumbar herniations Surgery Cervical nerve root irritation Headaches Inability of soccer coach to continue to work. Nassau County, New York The 55-year-old plaintiff, who was making a delivery to the defendant country club, contended that an employee was hosing down the stairs at the time of the morning delivery, creating a slippery condition. The plaintiff also contended that the stairs violated the code because the treads were too narrow and the height between the risers was too great. The plaintiff maintained that as a result, he fell down most of the flight. The defendant denied that an employee was spraying the stairs at the time of the accident. The defendant further maintained that the plaintiff failed to use the handrail and was comparatively negligent. The plaintiff maintained that he sustained herniations at L3-4, L4-5, and L5-S1 that were confirmed by MRI. The plaintiff contended that despite some 54 chiropractic visits and medication, he continued suffering severe pain. The plaintiff ultimately underwent a lumbar laminectomy and a three-level lumbar fusion with instrumentation and a bone graft. The plaintiff contended that severe pain will continue permanently despite physical therapy. The plaintiff further contended that he cannot return to work. The plaintiff related that he had been a World Cup soccer player, had continued to played soccer daily and was a volunteer coach for a soccer team. The plaintiff contended that he was unable to play soccer after the accident, had difficulty sleeping, was unable to run or exercise and was unable to perform his daily living activities without pain. The plaintiff also testified that his wife left him because of his limitations and financial difficulties. The defendant denied that the plaintiff s complaints stemmed from the incident and pointed to a 15 year history of reports of back pain. The defendant further pointed out that the plaintiff had been in an MVA approximately five years before the incident. The plaintiff countered that he had been able to remain active and play soccer up until the fall, arguing that the defendant s position should be rejected. The case settled prior to trial for $500,000. Plaintiff s chiropractic expert: Richard E. Gross, DC from Westbury, NY. Plaintiff s economic expert: Alan M. Leiken, Ph.D., from Stony Brook, NY. Plaintiff s engineering expert: Robert L. Schwartzberg, P.E., from Commack, NY. Plaintiff s orthopedic expert: Philip M. Rafiy, M.D., from Hicksville, NY. Plaintiff s orthopedic expert: James M. Weiss, MD from Germantown, MD. Plaintiff s physical medicine expert: Harold Avella, MD from Mineola, NY. Urrutia vs. Old Westbury Golf & Country Club, Inc. Index no /09, Attorney for plaintiff: Kevin T. Grennan of Kevin T. Grennan, PLLC in Garden City, NY. Volume 27, Issue 6, June 2012

27 VERDICTS BY CATEGORY 27 $700,000 VERDICT Hazardous Premises Premises Liability Hazardous Premises Plaintiff trips and falls on lip on unfinished sidewalk Fractured arm. Worcester County, Massachusetts In this premises liability matter, the plaintiff alleged that the defendant is negligent in failing to mark the one inch lip of an unfinished sidewalk, creating a hazard which caused the plaintiff to trip and fall. As a result of the fall, the plaintiff fractured her left arm. The defendants, the property owner and paving company, denied liability and disputed the nature and extent of the plaintiff s injuries and damages. The 67-year-old female plaintiff was walking on a sidewalk on property owned by the defendant property owner. The defendant paving company was working on surfacing the sidewalk and stopped short of completing its project, leaving a one-inch lip on the top coat, commonly referred to as a cold joint. The plaintiff, while walking, tripped on this uneven lip and fell. As a result of the fall, the plaintiff fractured her left arm. The plaintiff brought suit against the defendant property owner and the defendant paving company alleging negligence in causing the lip to exist and failing to mark or otherwise warn the plaintiff and others about the dangerous condition of the sidewalk. The defendant paving company argued that when it stops short of completing the work, it marks the lip in a brightly colored paint on a board to indicate a danger to those walking. The plaintiff argued that no such indication was present at the time of her fall, which was corroborated by witnesses. One of the trustees of the trust that owned the property testified that he did not see any cones or other markers to indicate that one should exercise care due to the uneven nature of the sidewalk area and he openly criticized the defendant paving company s failure to do so. The defendant paving company denied the allegations and maintained that the plaintiff s fall was solely as a result of the plaintiff s own negligence in failing to watch where she was walking. The defendant filed a third party claim against the plaintiff s daughter, who lived on the property, arguing that the daughter had a duty to inform her mother of the state of the sidewalk. The matter was tried. At the conclusion of the trial, the jury found in favor of the daughter on the third party claim. The jury also found in favor of the plaintiff on her claim, assessing liability as to both defendants. The jury awarded the plaintiff the sum of $700,000 in damages. Laposta vs. Atlantic Construction Services, Inc. Case no. CV ; Judge John McCann, Attorneys for plaintiff: Roger J. Brunelle of Sbrogna & Brunelle in Worcester, MA, and John W.S. Creedon of Creedon Law Office in Worcester, MA. $600,000 RECOVERY Premises Liability Hazardous Premises Failure of commercial landlord to rectify tripping hazard on sidewalk abutting premises caused by settling paving stones Failure of borough to conduct periodic inspections notwithstanding knowledge of propensity of paving stones to settle Hip fracture 1/2 inch leg length discrepancy Otherwise indicated hip replacement surgery precluded by unrelated health issues. Monmouth County, New Jersey The plaintiff, in her late 50s, contended that she tripped and fell over an approximate threequarter inch height differential between paving stones and a utility box. The plaintiff contended that the pavers have a propensity to settle and that the borough, which installed the sidewalk seven to eight years earlier, should have conducted periodic inspections. The municipality conceded that it was aware of such propensities, but contended that it had not received any complaints and denied acting in a palpably unreasonable fashion. The plaintiff also named the abutting commercial landowner, contending that it should have recognized that a hazard was developing in the years since the sidewalk was installed. The defendants maintained that the plaintiff failed to make adequate observations and was comparatively negligent. The plaintiff countered that the incident occurred at night when it was difficult to see the hazard. The plaintiff suffered an intertrochanteric fracture of the right hip and underwent surgery. The plaintiff had a difficult course after the surgery, suffered a GI bleed, anemia and contracted a C-Diff infection. The plaintiff was left with an approximate half inch leg length discrepancy. The plaintiff contended that hip replacement surgery, which would otherwise be indicated, cannot be performed because of unrelated health issues. National Jury Verdict Review & Analysis

28 28 VERDICTS BY CATEGORY The case settled prior to trial for $600,000, including $125,000 from the borough (after motion for S.J. denied) and $475,000 from the abutting property owner. Plaintiff s engineering expert: George P. Widas, PE from Medford, NJ. Bennett vs. Acrardi, et al. Docket no. MON-L ; Judge Robert Feldman (retired), Attorney for plaintiff: Randolph H. Wolf of Law Offices of Randolph H. Wolf in Red Bank, NJ. $114,000 VERDICT Premises Liability Hazardous Premises Plaintiff trips on hole or depression on the sidewalk owned and maintained by the defendant construction group and defendant city Neck, back and shoulder sprains Left knee sprain. Philadelphia County, Pennsylvania The female plaintiff in this premises liability action alleged that she was injured when she tripped and fell on a hole that was located on the sidewalk of the defendant construction company s commercial business. The defendant denied negligence and alleged that the plaintiff failed to watch where she was walking. On November 6, 2009, the plaintiff was an invitee on the defendant s commercial premises when she tripped and fell in a hole that was present on the sidewalk. The plaintiff sued both the premises owner and the city where the incident occurred. The allegations against both defendants were failing to properly design and construct the sidewalk or walkway, failing to properly inspect, clean or repair the sidewalk, failing to barricade the dangerous condition and failing to comply with all building codes. As a result of the fall, the plaintiff suffered cervical/ lumbosacral sprain, right shoulder girdle sprain, right shoulder subscapular muscle tear, left knee sprain and right thumb sprain. Prior to trial, the city of Philadelphia was dismissed per agreement of counsel. The defendant construction company denied all liability and argued that the condition was open and obvious and the plaintiff failed to use due regard. The jury found against the defendant construction company and awarded the plaintiff $114,000. Wanda Woodson vs. Nello Construction and City of Philadelphia. Case no ; Judge Eugene Maier, Attorney for plaintiff: Marc F. Greenfield in Philadelphia, PA. Attorney for defendant: Katherine Sullivan of Deasey, Mahoney & Valentini, Ltd. in Philadelphia, PA. DEFENDANT S VERDICT Premises Liability Hazardous Premises Plaintiff falls attempting to enter a step-down bathroom in an apartment owned and maintained by the defendant Failure to warn Fracture of left metatarsal shaft. Alameda County, California In this premises liability action, the plaintiff suffered injuries to her left foot when she fell while attempting to enter a step down bathroom while she was visiting a friend s apartment owned by the defendant. The defendant denied that a dangerous condition existed on the premises and argued that the plaintiff was comparatively negligent. On January 10, 2010, the female plaintiff was visiting a friend at the apartment the friend rented from the defendants. As the plaintiff was entering a step down bathroom, she fell and injured her left foot. The plaintiff claimed that the negligence of the defendants consisted of failing to exercise reasonable care in the maintenance of the premises, failing to warn of the dangerous condition of the premises, and violating California building codes regarding the step down rooms. The plaintiff suffered a non-displaced fracture of the fifth metatarsal shaft. The defendants denied all allegations of negligence and argued that any damages suffered by the plaintiff were proximately caused or contributed to by the failure of the plaintiff to exercise ordinary care. The jury found that the defendant premises owners were not negligent in the use or maintenance of the property. Josie Apodaca vs. Chun Ming Liu and Si Yi Huang. Case no. RG ; Judge Robert McGuiness, Attorney for plaintiff: Panos Lagos of Law Offices of Panos Lagos in Alameda, CA. Attorney for defendant: Lawrence Hart of Law Offices of Santana & Hart in San Francisco, CA. Volume 27, Issue 6, June 2012

29 VERDICTS BY CATEGORY 29 ADDITIONAL VERDICTS OF PARTICULAR INTEREST Civil Rights $620,000 VERDICT, INCLUDING $600,000 FOR NON-ECONOMIC DAMAGES AND $20,000 FOR ECONOMIC LOSS CivilRights Sheriff sdeputygoestohouseto locate homeowner s 18-year-old son to execute writ of body attachment for failure to appear in court following minor charges Deputy shoots family dog in shoulder and enters house without permission as husband and wife bring dog to vet Trespass Violations of Secs. 24 and 26 of MD Declaration of Rights. Frederick County, Maryland The plaintiff homeowners contended that the defendants, two sheriff deputies, loudly knocked on their front door at 7:00 a.m. on a Saturday in January, looking for the couple s son, who had failed to appear in court on a minor charge. The deputies had a body attachment that authorized them to bring the son to headquarters, but was not a search warrant. The evidence disclosed that the deputy who subsequently shot the dog had knocked on the front door of the rural home as the second deputy was at the back door. The plaintiff husband contended that he told the deputy that he did not know if his son, who no longer resided at home, but who sometimes stayed there, waspresentbutthathewouldfirsthavetoputthe dogs away, before talking with them further. The plaintiffs maintained that after the dogs went out the back to be put in the kennel; their chocolate lab saw the deputy walking around the side of the house and went to greet the stranger on her property. The plaintiffs contended that although not menacing or dangerous, the deputy responded by shooting the dog in the shoulder. The incident was captured on the defendant s video surveillance system and the plaintiffs argued that the jury could determine that although barking at the stranger, the Lab s tail was wagging and she did act in a manner that justified the shooting. The plaintiffs also contended that the deputy could have used other means, such as administering mace or using his voice. The videotape did not contain audio, until after the shooting occurred. The plaintiffs maintained that they specifically told the deputies not to enter the home as they rushed the dog to the vet. The plaintiffs maintained that they nonetheless did so. The defendants maintained that the plaintiffs gave them permission to enter the home, which they did after the plaintiffs left the property and located the son. The plaintiffs maintained that even if the sheriff s deputy did not hear his order to stay out of the house, the defendants could not reasonably believe that any consent the defendants may have thought existed from the first conversation with the plaintiff at the front door, prior to shooting the dog, had not been constructively withdrawn after the family dog had been shot and the homeowners had left the property. The dog was successfully treated, but will have health problems for the rest of her life. The jury found that the one defendant had violated the plaintiffs rights under the common law and state constitution by shooting the dog and that both trespassed into the home. The jury determined that although they acted in a grossly negligent manner, they did not act with malice and the jury declined to render a punitive award. They then awarded $20,000 for economic loss and $600,000 for non-economic loss. Jenkins vs. Brooks, et al. Case no. 10C , Attorney for plaintiff: Rebekah Lusk of Thienel Law Firm, LLC in Columbia, MD. $2,200,000 RECOVERY Contract Contract False Claims Act Plaintiff alleges that the defendant doctor filed false Medicare and Medicaid claims. U.S. District Court - District of Connecticut In this contract matter, the plaintiff alleged that the defendant allegedly filed false claims for Medicare and Medicaid services in violation of the False Claims Act. The defendant physician denied the allegations. The defendant is an internist who provided Medicare and Medicaid services to his patients. The plaintiff investigated the defendant physician and determined National Jury Verdict Review & Analysis

30 30 VERDICTS BY CATEGORY that the defendant falsely billed Medicare and Medicaid from July 1, 2004 through April 30, 2009 for services provided at a local hospital and nursing home. The plaintiff brought suit against the defendant under the False Claims Act seeking damages and penalties for alleged false claims submitted. The defendant denied the allegations and maintained that no false claims were submitted. The parties agreed to settle the plaintiff s claims without any admission of liability on the part of the defendant for the sum of $2,200,000 which includes repayment and penalty amounts. United States of America vs. Mark W. Izard, M.D., Attorney for plaintiff: Richard M. Molot of United States Attorney s Office in Hartford, CT. $590,000 COMBINED RECOVERY Dram Shop Dram Shop Inebriated defendant driver fails to stop at red light and strikes driver s side door UIM Plaintiff driver/husband sustains leg fractures requiring surgery and shoulder fracture addressed non-surgically Plaintiff passenger/ wife suffers herniations treated conservatively. Essex County, New Jersey The plaintiffs, a driver/husband and passenger/ wife contended that the defendant driver failed to stop at a red light, colliding with the driver s side of the plaintiffs vehicle. The defendant driver had a $100,000/$300,000 policy and the plaintiffs had a $500,000 combined, single limit UIM policy. The plaintiff also maintained that the defendant was inebriated and that the defendant tavern had served him while visibly intoxicated. The collision occurred on a Sunday, and the defendant driver had been in the tavern from approximately 2:00 p.m. until approximately 6:30 p.m. The plaintiff contended that he consumed a significant amount of drinks at the tavern, established that he had a BAC of.18 and the plaintiff s toxicologist maintained that it was clear that he was served while showing overt signs of inebriation. The defendant tavern contended that because of the weight of the 230 pound defendant driver and a history of alcoholism, he did not show requisite signs. The plaintiff husband sustained a fractured left tibia that required an open reduction and internal fixation. This plaintiff contended that he will permanently suffer some pain and an antalgic gait. This plaintiff also suffered a fractured left shoulder that was treated conservatively. The wife suffered cervical and thoracic herniations that were confirmed by MRI and which the plaintiff maintained will cause some permanent pain and limitations. The case settled prior to trial for a total of $590,000. The husband recovered $532,500, including the $100,000 policy limits of the defendant driver and the remainder being evenly split between the tavern and the plaintiffs UIM carrier. The passenger/wife settled her case for $57,500, including $25,000 from the defendant driver and $32,500 from the tavern. The UIM carrier did not contribute to this aspect. Plaintiff s toxicological expert: William L. Manion, MD, PhD from Medford, NJ. Cohen vs. Halloway, et al. Docket no. ESX-L , Attorney for plaintiff: Gregg Alan Stone of Kirsch Gelband & Stone in Newark, NJ. Employer s Liability $3,000,000 VERDICT Employer s Liability Man resolves worker s compensation claim in connection to 2001 accident where a drunk driver crippled him Paraplegia. Philadelphia County, Pennsylvania This matter resolved a worker s compensation claim by a man left a paraplegic after being struck by a drunk driver. The matter was resolved after years of negotiation. Volume 27, Issue 6, June 2012

31 VERDICTS BY CATEGORY 31 On January 17, 2001, construction worker Joseph T. was struck by a car and paralyzed at the age of 31 while working as a flag man on a highway construction site. The driver sped around a line of cars, striking the plaintiff and knocking him into the air. The plaintiff sustained a C4 injury resulting in quadriplegia, as a result of the collision. He was paralyzed from the neck down and rendered unable to work or care for himself. A dram shop suit against the drunk driver and the servicing bars was resolved for $75.6 million in January 2004 in the Philadelphia Court of Common Pleas. The award was later halved by a Philadelphia judge. The plaintiff filed a claim with the Workers Compensation Office of Adjudication. The initial offer by the insurance company was less than $1 million, precipitating a four-year-long negotiation. The case resolved in October 2011 with a $3 million settlement. Joseph Tuski vs. Liberty Construction and Erie Insurance Co. Case no ; Judge Geoffrey Dlin, Attorney for plaintiff: Sam Pond of Pond, Lehocky, Stern, Giordano in Philadelphia, PA. Attorney for defendant Erie Insurance: Garrett Brindle, Esq. of Dombrowski Group in Paoli, PA. Municipal Liability $1,291,696 VERDICT Municipal Liability Flaking and chipping lead based paint in Housing Authority apartment Child resides in apartment during first two years of life Elevations of 13 and 11 mcg/dl found on routine blood testing Reduced IQ. Baltimore City County, Maryland The plaintiff contended that the child, who resided in the apartment for two years after her 1995 birth, was exposed to lead through peeling and cracking of the lead based paint which caused learning and behavioral deficits. The plaintiff contended that the initial routine blood test returned with a finding of 13 mcg/dl and the second, approximately one year later, returned with 11 mcg/dl. The defendant denied that the plaintiff suffered injuries from exposure to lead paint. The plaintiff established that the level of concern for childhood lead poisoning, established by the CDC in its October 1991 statement, was 10 mcg/dl. The plaintiff s mother immediately notified the defendant s management who advised that they would test the home for lead paint. The defendant sent in its environmental assessment contractor who only conducted a visual inspection. No lead paint test was ever done. The contractor issued a letter indicating that there were six areas within the home that had flaking and chipping paint and stucco. The family was moved out of the home shortly thereafter and the plaintiff s blood lead levels decreased. The plaintiff maintained that classic lead-related deficits were noted when the child started school, including attention issues, difficulties reading, language deficits and behavioral difficulties. The plaintiff maintained that the deficits were caused by the lead exposure and that it was likely that the exposure occasioned a loss of 5-7 IQ points. The plaintiff contended that because of the deficits, she will probably suffer over $350,000 in future economic losses. The jury found for the plaintiff and awarded $160,000 for economic damages and $1,131,696 for noneconomic damages. Under Maryland s cap for noneconomic damages, this portion of the award was reduced to $530,000. Plaintiff s economic expert: Richard J Lurito, PhD from McLean, VA. Plaintiff s neuropsychological expert: Barry Hurwitz, PsyD from Baltimore, MD. Plaintiff s pediatric expert: Jeanette McDaniel, MD from Woodlawn, MD. Plaintiff s vocational expert: Mark Lieberman, MA, CRC from Forest Hill, MD. Defendant s economic expert: Joel Morse, PhD from Baltimore, MD. Defendant s lead risk assessment expert: Patrick Connor from Baltimore, MD. Defendant s neuropsychological expert: Neil Hoffman, PhD from Rockville, MD. Defendant s pediatric neurological expert: Joseph Scheller, MD from Laurel, MD. Defendant s vocational expert: James Patrick, PhD from GA. Woodland vs. Housing Authority of Baltimore City. Case no. 24-C ; Judge Alfred Nance, Attorneys for plaintiff: Scott E. Nevin and William Beveridge of Law Offices of Peter T. Nicholl in Baltimore, MD. National Jury Verdict Review & Analysis

32 32 VERDICTS BY CATEGORY $508,250 VERDICT Police Liability Police Liability False arrest Failure of police department to conduct reasonable investigation to independently verify facts alleged by the confidential informant before seeking warrant Police execute no knock warrant and keep plaintiff handcuffed for approximately 30 minutes before realizing he was not target of warrant PTSD Insomnia. Kings County, New York The plaintiff tenant contended that at approximately 6:00 a.m., the police, executing a no knock warrant, suddenly kicked in his apartment door, placed him on the floor of his bedroom and handcuffed him. The defendant maintained that since the warrant was authorized by a magistrate, it was immune. The warrant was issued on the basis of information obtained from a confidential informant. The plaintiff contended that unless a reasonable investigation to independently verify information obtained from a confidential informant, the defendant would not be entitled to immunity. The plaintiff pointed to the Aguilar-Spinelli test that is employed by the Appellate Division, First Department in Delgado v. City of New York, 928 N.Y.S2d 487 (1st Dep t., 2011). See also Aguilar v. State of Texas, 84 S. Ct (1964) and Spinelli v. United States, 89 S. Ct.584 (1969). The plaintiff also maintained that upon information and belief, some $2,000 in cash which he kept in a plastic bag hidden in a bedroom closet was misappropriated The plaintiff maintained that the confidential informant had entered the apartment building more than four months earlier, and before the plaintiff moved into the building, indicated to the police that she made a successful drug buy, but that the police were not aware which apartment was allegedly involved. The plaintiff also contended that the description of alleged drug seller was not similar to that of the plaintiff and that the physical layout of the plaintiff s apartment differed significantly from the information obtained from the confidential informant. The plaintiff contended that even if the police had sufficiently accurate information to ask for the warrant in the first instance, there was a duty to cease once it became apparent that a mistake had been made. The plaintiff contended that he suffered a severe post-traumatic stress disorder manifesting in anxiety and depression, nightmares and flashbacks of the event. The plaintiff also maintained that he suffers from extensive insomnia. The plaintiff s forensic psychologist maintained that the disorder was causally relatedtotheincidentandofferedaguardedprognosis. The defendant produced no medical testimony. The jury found for the plaintiff and awarded $508,250. The award was allocated as follows: $80,000 for past pain and suffering, $55,000 for past lost income, $2,000 for expenses, $292,000 for future pain and suffering over 22.5 years and $78,750 for future lost income over five years. Ali vs. City of New York, et al.; Judge Jules Spodek, Attorney for plaintiff: Harvey Levine of Levine & Gilbert in New York, NY. $150,000 VERDICT Police Liability Defendant highway patrol officer loses control while backing his vehicle on the shoulder of the road, striking the plaintiff Careless and unsafe driving Tear of rotator cuff requiring surgery. Oklahoma County, Oklahoma In this vehicular negligence action, the plaintiff alleged that the defendant highway patrol officer negligently backed his vehicle up at an excessive rate of speed and lost control of his vehicle striking the vehicle the plaintiff was traveling in. The defendant denied being negligent and argued that the plaintiff s claim was barred or limited by governmental immunity. On September 27, 2008, the plaintiff was traveling on Turner Turnpike in Oklahoma. The defendant officer with the Oklahoma Highway Patrol had pulled to the shoulder of the road on Turner Turnpike. As the defendant began to back up and due to his excessive speed, he lost control of his vehicle and collided with the vehicle in which the female plaintiff was a passenger. The plaintiffs alleged that the negligence of the defendant consisted of traveling at a dangerous and excessive rate of speed, careless and unsafe driving and negligently and improperly backing up. As a result of the collision, the female plaintiff suffered multiple injuries the most serious of which was a tear of the rotator cuff which required surgery. The plaintiff suffers permanent pain and decreased range of motion due to the shoulder injury. The defendant argued that the plaintiff s claim was barred or limited by the Volume 27, Issue 6, June 2012

33 VERDICTS BY CATEGORY 33 Governmental Tort Claims Act. In addition, the defendant claimed that the plaintiff was comparatively negligent, assumed the risk of her actions and her injuries were preexisting. The jury found for the plaintiff in the amount of $150,000. Vicki Sanders vs. State of Oklahoma, Oklahoma Highway Patrol. Case no. CJ ; Judge Lisa Davis, Attorney for plaintiff: T. David Hasbrook of Hasbrook and Hasbrook in Oklahoma City, OK. Attorney for defendant: Sherry Todd of Oklahoma Attorney General s Office in Oklahoma City, OK. $512,000 VERDICT Racial Discrimination Racial Discrimination Derogatory language and biased hiring recommendations Wrongful termination $500,000 in punitive damages. U.S. District Court - Middle District of Florida This discrimination suit was brought by a former African-American employee of the defendant Checkers Drive-In Restaurants under 42 U.S.C. Section The plaintiff alleged that he was wrongfully terminated by the defendant because of his race. The defendant maintained that the plaintiff was terminated for a legitimate, nondiscriminatory reason. Witnesses testified that the defendant s district manager, who had terminated the plaintiff, used racially derogatory language and instructed the general manager to hire more white employees. The plaintiff alleged that the district manager generally treated African-American employees disparately. The plaintiff claimed that individuals high in the defendant s management structure were put on notice of prior complaints and allegations related to raciallymotivated conduct on the part of the district manager, yet failed to take appropriate action to address the issues. The plaintiff also argued that the defendant did not utilize its progressive disciplinary policy before terminating the plaintiff. The defendant contended that the plaintiff acted insubordinately when he used his spatula too aggressively on the defendant s grill. The jury found that the plaintiff s termination was motivated by his race. The jury also found that the defendant acted with malice or reckless disregard to the plaintiff s federally protected rights. The plaintiff was awarded $512,000 in damages. The plaintiff has filed post-trial motions for attorney fees and costs which would add an additional $200,000 to the plaintiff s recovery. A ruling on post-trial motions filed by the defendant is pending. Jackson vs. Checkers Drive-In Restaurant, Inc. Case no. 8:10CV-1483-T-26TBM; Judge Thomas B. McCoun, III, Attorneys for plaintiff: Wil H. Florin and Gregory A. Owens of Florin, Roebig, P.A. in Palm Harbor, FL. $212,300 VERDICT Sexual Harassment Sexual Harassment Hostile work environment Defendant inappropriately touches 25-year-old female personal assistant on company retreat Wrongful constructive discharge. Alameda County, California In this employment law action, the female plaintiff alleged that her boss sexually harassed her by repeatedly attempting to touch the plaintiff while driving back from a company retreat. The defendant denied that he harassed the plaintiff and argued that the plaintiff misunderstood the actions of the defendant. The 25-year-old female plaintiff was employed as the Personal Assistant to the defendant company owner for two months. In June of 2008, the plaintiff went on a company retreat with the defendant and a business manager with the defendant company. On the car ride back the defendant company owner repeatedly attempted to touch the plaintiff, trying to hold her hand, place his head in her lap and moving his hand up her thigh. The plaintiff repeatedly told the defendant to stop and after several polite requests did not deter the defendant, she hollered stop and pushed the defendant away. The business manager stopped the vehicle and asked if the plaintiff was okay. The plaintiff replied that she just wanted to get home. National Jury Verdict Review & Analysis

34 34 VERDICTS BY CATEGORY After returning from the trip, the plaintiff was afraid to return to work and contacted and the defendants seeking a resolution to the incident on the retreat and a guarantee that this conduct would not occur again. Both defendants denied any wrongdoing and claimed the plaintiff misunderstood the incident. The plaintiff felt she had no choice but to leave her job. She filed a civil suit against the defendants alleging sexual harassment, sexual discrimination, hostile work environment, retaliation for complaints of sexual harassment and wrongful constructive discharge. The jury found that the defendant subjected the plaintiff to sexual harassment and created a hostile work environment and that the defendant retaliated against the plaintiff for complaining of the harassment. The jury awarded the plaintiff $112,300 in compensatory damages and $100,000 in punitive damages. Julia Vandermat vs. Alvin Chandra, Creative Stoneworks. Case no. RG ; Judge Jon S. Tigar, Attorney for plaintiff: Jeremy Pasternak of Law Offices of Jeremy Pasternak in San Francisco, CA. Attorney for defendant: Russell B. Longaway in San Francisco, CA. $75,000 VERDICT Sexual Harassment Defendant doctor employs the female plaintiff and subjects her to disparaging comments about women Gender discrimination Hostile work environment Unlawful constructive discharge. $332,000 TOTAL VERDICT Wrongful Termination Cleveland County, Oklahoma In this employment law action, the plaintiff contended that she was subjected to sexual harassment by the defendant doctor, her employer, and when she complained of the harassment was further subjected to a hostile work environment and constructively discharged. The defendant denied all allegations of negligence and harassment. The female plaintiff began her employment with the defendant as an ophthalmic technician in February 9, During her employment with the defendant she was subjected to many derogatory and improper actions toward or about women by the defendant including comments on women s attractiveness, commenting on employees breasts and clothes, suggesting that women liked to be belittled and needed to be prodded along in the workplace. In addition, while the plaintiff was employed by the defendant he asked the plaintiff to perform illegal activities such as performing eye exams when she was not qualified to do them. The plaintiff complained to her boss on several occasions about the improper conduct to no avail. The plaintiff s husband, an attorney, even came to the office to attempt to correct the situation but the husband was dismissed from the defendant s practice. Once the defendant learned of the plaintiff s desire to file a civil suit against the defendant, he threatened the other female employees in the practice with termination if they assisted the plaintiff. The plaintiff was constructively discharged from her employment because of unlawful retaliation for the plaintiff s participation in protected activity, unlawful gender discrimination, a hostile work environment and for failing to engage in unlawful activity. Such treatment and constructive termination constituted unlawful gender discrimination and retaliation. The defendant denied all allegations of negligence and harassment. The jury awarded the plaintiff $50,000 in compensatory damages and $25,000 in punitive damages. Sarah Hale vs. Dr. Joel Razook, MD and Dr. Joel Razook, MD an Oklahoma Corporation. Case no. CJ ; Judge Tom A. Lucas. Attorney for plaintiff: Jack D. Craven in Norman, OK. Attorney for defendant: W. Blake Sonne, Jr. of McAfee & Taft in Oklahoma City, OK. Wrongful Termination Plaintiff mechanics in the employ of baggage handling corporation servicing Portland International Airport are terminated in retaliation for complaining to OSHA that rest room facilities not provided for their use Emotional distress. Multnomah County, Oregon This case involved plaintiff mechanics in the employ of the defendant corporation that provided baggage handling services at the airport. The plaintiffs contended that after the maintenance workshop/work site was moved from the main terminal to one that was in a more remote area of the airport, rest room facilities were not reasonably available. The lead Volume 27, Issue 6, June 2012

35 VERDICTS BY CATEGORY 35 mechanic, a man in his 40s, was an eight-year employee, whose worksite was changed in September, This plaintiff hired an assistant in his 70s in April, 2010, who worked three days per week. The lead mechanic made multiple complaints to a supervisor that they needed a portable toilet, but the supervisor ignored him. Both mechanics urinated in a bucket. Two months after the assistant was hired, he made a complaint to OSHA. After OSHA cited the company for failing to provide restroom facilities, the plaintiffs were terminated. The defendant contended that the plaintiffs were told that they could use the rest rooms in a number of surrounding businesses or go back to the main terminal. The defendant contended that the plaintiffs were terminated for continuing to use thebucketafterbeingtoldnotto. The plaintiffs maintained that they were not welcome at one surrounding business, and that other surrounding businesses were at times closed, leaving them no choice but to use the bucket. The plaintiffs each contended that they had accidents. The jury found defendant liable to plaintiffs on claims for retaliatory termination because they cooperated with an OSHA investigation, and on claims of intentional infliction of emotional distress. The plaintiff in his 40s requested back pay, lost flight benefits and two years in front pay. The co-plaintiff made a claim for one year of back pay. The jury found for the plaintiffs and awarded the plaintiff in his 40s $77,000 for economic loss and $30,000 for non-economic loss. They awarded the co-plaintiff $15,000 for economic damages and $30,000 for non-economic damages. They also awarded each plaintiff $90,000 in punitive damages. Under Oregon law, 60% of the punitive damages award will go to the state s crime victim s compensation fund. Eki and Doctolero vs. Menzies Aviation. Judge Edward Jones, Attorney for plaintiff: Thomas Spaulding of Spaulding & Potter in Portland, OR. National Jury Verdict Review & Analysis

36 36 NOTES ATTENTION VALUED SUBSCRIBER Jury Verdict Review Publications is now offering our subscriptions in two formats, hardcopy only or hardcopy with electronic PDF edition including an online search article discount along with a client invoice generator for all search articles purchased from our website. All annual subscriptions purchased online include 15 free online search articles along with an annual expert index. The cost of the electronic PDF and online search article discount package depends on the number of litigators in your firm as each litigator will be able to download their own personal PDF edition and generate client invoices for all online search article purchases. Please go to our website at to register, click on the "Subscribe Now" tag and select the number of litigators in your firm to get started. Online subscription benefits include: - 15 free search article credits along with an expert witness index with your paid annual subscription! - PDF pricing includes monthly electronic editions for all litigators in the firm as well as online search article discounts. - Client invoice generator for all article purchases - For your convenience, we also have available monthly billing by credit card for subscriptions to any of our publications (monthly billing does not include the 15 search article credits or the annual expert witness index). Questions? Call Gary at or [email protected]. Volume 27, Issue 6, June 2012