TOP JURY VERDICTS Top Ten rises again After years of decline, the Top Ten Jury Verdicts rose dramatically. LawyersUSA

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1 LawyersUSA 10 TOP JURY VERDICTS 2009 Top Ten rises again After years of decline, the Top Ten Jury Verdicts rose dramatically in The increase in 2009 was less pronounced, but the average increased again, from $112 million to nearly $145 million. The top award was slightly lower in 2009 $370 million versus $388 million. But two other awards in the $300 million range, along with five verdicts of $70 million or more, helped push the average appreciably higher than last year. The year s top verdict went to five former employees of Guess Jeans mogul Georges Marciano, who claimed that Marciano falsely accused them of stealing from him and used his wealth and connections to dog them with investigations, tax audits and accusations in newspaper ads and on Internet sites. And seven of the Top Ten Verdicts stemmed from personal injury cases, including two drunk driving accidents, one $300 million tobacco verdict, and one verdict in the ongoing Prempro litigation against Wyeth Pharmaceuticals. Lawyers USA compiles the Top Ten Jury Verdicts each year, applying certain ground rules. First, verdicts must be to an individual plaintiff, defined as a single person, family or small group of individuals injured in a single incident who had their claims tried in one case before the same jury. Second, we do not include business-against-business suits, class actions or consolidated cases. Finally, cases must have been defended default verdicts and suits against incarcerated individuals are not included. Susan A. Bocamazo

2 LawyersUSA Susan A. Bocamazo, Esq. Publisher & Editor Reni Gertner News Editor Nora Lockwood Tooher Associate Editor Correy E. Stephenson, Esq. Associate Editor, New York Office Kimberly Atkins, Esq. Staff Writer, D.C. Office Sylvia Hsieh, Esq. Staff Writer, California Office Justin Rebello Reporter Patrick M. Murphy, Esq. Legal Editor John L. Mecklenburg Art Director Barbara Connor Dimauro Circulation Marketing Manager Edie Stringfellow National Account Manager Lon Varangkounh Ad Traffic Manager Thomas F. Harrison Vice President, New Business Development Malee S. Nuesse Vice President, Circulation Scott Murdoch Circulation Manager You can contact Lawyers USA via the Internet at: Or call Lawyers USA at Dolan Media Company James P. Dolan Chairman, President/CEO Scott J. Pollei Executive Vice President/CFO Mark W.C. Stodder Executive Vice President/Newspapers Christopher A. Eddings Group Publisher LAWYERS USA (ISSN ) is published monthly by Lawyers Weekly Inc., 10 Milk St., 10th Floor, Boston, MA Price is $26 per copy plus shipping and handling, $220 per year, $129 for 6 months. POSTMASTER: Send address changes to LAWYERS USA, 10 Milk St., 10th Floor, BOSTON, MA Periodicals postage paid at Boston, MA and additional mailing offices. Copyright 2010 Lawyers Weekly Inc. Material published in Lawyers USA is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher s explicit consent. Any infringement will be subject to legal redress. tableofcontents Quirky trial leads to record $370 million defamation verdict...3 Jury awards $330M in DUI fatality...4 $300M record-setting tobacco verdict...5 Missouri jury awards $89M in DUI case...6 Illinois woman wins $78.75M Prempro verdict...7 $77.4 million for infant injured at birth...8 Ousted water company partner wins $71M...9 $70M for injured worker in workers comp case year old crash victim awarded $65M...11 N.Y. woman wins $60 million in med-mal suit...12 Top Ten Jury Verdicts of 2009 is produced by Lawyers USA, the national publication for small firm lawyers. Material published in Top Ten Jury Verdicts of 2009 may not be republished, resold, recorded or used in any manner, in whole or in part, without prior written consent. Any infringement will be subject to legal redress. LawyersUSA 2

3 TOP (1) TEN $370 MILLION Quirky trial leads to record $370 million defamation verdict We wanted it to be a message [the defendant] could not ignore that came from the jury, not from me, not from my clients. David Wheeler By Sylvia Hsieh After a bizarre trial, a Los Angeles jury awarded a record defamation verdict of $370 million, including $25 million in punitive damages, to five former employees of Guess Jeans mogul Georges Marciano. The plaintiffs claimed that Marciano falsely accused them of stealing from him and used his wealth and connections to dog them with investigations, tax audits and accusations in newspaper ads and on Internet sites. On the third day of trial, just as the jury was settling into a weeklong parade of otherwise unnotable witnesses, two black limousines pulled up outside the courthouse shuttling a surprise witness the defendant. Unbeknownst to the judge, the plaintiffs and apparently his own lawyers, the 62-year-old Marciano showed up, perhaps on a whim, dressed in khakis and an unbuttoned collared shirt over a t-shirt. Making his entrance even more dramatic, a cell phone went off just as he arrived so everyone s head turned to the courtroom door. Heads would not typically turn at a defendant appearing at his own trial, but this was not a typical trial. Marciano, the creative genius behind the company that popularized denim in the 80 s, set off the litigation in 2007 when he sued his former employees for fraud and conspiracy to steal over $400 million worth of assets, including items from his art, wine and coin collections. His suit was dismissed. The current case involved counterclaims brought by the exemployees for defamation and intentional infliction of emotional distress. The plaintiffs had already won on liability after a bench trial; the jury was there to decide damages only. In a weird legal twist, because Marciano repeatedly failed to show up for his deposition, the trial judge struck his answer and refused to allow his attorneys and there were many to participate in either trial: no opening, no closing, no witnesses. On the stand, Marciano, whose brothers bought out his stake in Guess in 1993, admitted to hiring picketers at an hourly rate to protest the judge outside the courthouse and to taking out ads in local business newspapers against her. Michael Reznick of Oak Park, Calif., one of Marciano s attorneys observing the trial, did not return a call seeking comment. Eric George of Browne, Woods & George in Los Angeles, who also observed the trial, declined comment but said he would be part of an appeal. Marciano, who announced in April he is running for governor of California in 2010, released a statement on his website calling the trial a sham and mockery and a violation of his First Amendment and due process rights, but 3 R. Rex Parris had only minutes to prepare his cross-examination of the defendant, Georges Marciano, a surprise witness at his defamation trial. that he is confident the verdict will be reversed on appeal. Marciano was denied a stay of judgment on Aug. 4. Flying by the seat of my pants R. Rex Parris heart raced as he scrambled to prepare to question the surprise witness Marciano, who was not under subpoena and technically only a visitor in the Verdict: $370 million; $345 million in compensatories, $25 million in punitives State: California Type of case: defamation Status: The defendant has appealed the verdict to the state court of appeal. Three of the five plaintiffs have filed an involuntary bankruptcy petition against the defendant, staying the appeal. Case name: Choi v. Marciano Date: July 28, 2009 courtroom, but who readily accepted the judge s invitation to take the stand. Parris, a trial attorney and mayor of Lancaster, Calif., represented two of the plaintiffs, Mariam Choi, who managed Marciano s finances, and Camille Abat, a receptionist. It was thrilling. I was really flying Continued on page 14 Plaintiffs attorneys: R. Rex Parris of The R. Rex Parris Law Firm in Lancaster, Calif.; David Wheeler of Wheeler & Sheehan in Westlake Village, Calif; James Nevin of Brayton & Purcell in Novato, Calif; Reeve Segal of Cozen O Connor in Los Angeles; Alain Bonavida in Beverly Hills, Calif.; Cheryl Deptowicz-Diaz of Los Angeles. Defense attorneys: Not permitted to make appearance, with the exception of making objections based on privilege only.

4 $330 MILLION By Nora Lockwood Tooher Ajury of six women heard Angela Stone describe her 13-year-old daughter s death after a drunken driving accident in April Then, after deliberating less than an hour, the all-woman jury ordered the man who killed Stone s daughter, Shelby Taylor Hagman, to pay $330 million in damages. The verdict in Florida state court includes $55 million in compensatory damages and $275 million in punitive damages. It is believed to be the largest DUI verdict in the nation. It s time to stand up and supplement the law by sending a message that we as a society will not allow unsafe things to occur. C. Steven Yerrid TOP (2) TEN Florida jury awards $330M in DUI fatality Verdict: $55 million in compensatory damages and $275 million in punitive damages State: Florida Type of case: wrongful death Status: No change. Case name: Stone v. Marcone But Steve Yerrid, Stone s attorney, said the verdict wasn t about the money. Instead, he said, it had a more important purpose. We wanted to send a message, Yerrid said. The mother s intent was to spare anyone from experiencing the horrific experience of burying their own child. While it is unlikely Stone will collect any of the punitive damages, she will receive some portion of the compensatory damages thanks to a confidential agreement that was reached with the drunk driver and his insurance company as the trial began, according to Yerrid. Drunk driver Shelby Hagman was fatally injured when a pickup truck ran a stop sign and smashed into the right side of the Kia Sedona van she was riding in with her grandparents. Police reports showed that the blood alcohol level of the driver of the pickup, Christopher Marcone, was.207 more than twice the legal limit. Shelby s grandparents survived. But Shelby was flown to Tampa General Hospital with significant head injuries. Her family withdrew life support the next day after being told there was no chance for recovery. Marcone, 27, pleaded guilty to DUI manslaughter, and is currently serving a 13-year sentence. His attorney, Bryan Reynolds, mounted a minimal defense during the trial, offering only a brief opening statement. He told the jury he didn t want Date: Sept. 30, 2009 Plaintiff s attorneys: C. Steven Yerrid and David Dickey of The Yerrid Law Firm in Tampa, Fla. Defense attorney: Bryan Reynolds of Reynolds & Stowell in St. Petersburg, Fla. 4 Plaintiff Angela Stone, with her 13-year-old daughter Shelby Taylor Hagman. to waste their time, Yerrid recalled. I told the jury, In fact, there is no defense in this case to put up. He [Marcone] went through a stop sign at 60 miles an hour. The trial itself lasted only two days, but served as preparation for another trial expected to be scheduled sometime next year. Yerrid has filed a wrongful death suit against Kia Motors on behalf of Stone, alleging that a defective seatbelt system contributed to Shelby s fatal injuries. Shelby was wearing a seat belt and sitting in the rear of the minivan on the opposite side of the impact. But according to Yerrid she suffered severe injuries when her head became tangled in the seat restraint system. There was a lot of movement of her body, he said. Her torso was not restrained the way it should have been. It s going to be a very substantial case we have, he said. What we found in preparing this case is that it was a secondary impact that killed this young girl. Had this restraint system worked properly, she would not have sustained any in- Continued on page 13

5 $300 MILLION If similar verdicts are reached, the tobacco companies will need to re-examine their position of not settling cases. Edward L. Sweda By Correy E. Stephenson After just three hours of deliberations, a six-person jury in Broward County, Fla. has awarded a plaintiff suffering from severe emphysema $300 million against Philip Morris. It was the 10th of the Engle cases, which involve individual trials to determine if a plaintiff was addicted to cigarettes and whether or not that addiction caused his or her injury. If a jury sides with the plaintiff, they are presented with findings that the defendants were negligent, that cigarettes are defective, unreasonably dangerous and addictive, and that the tobacco companies conspired to conceal health and addiction information with the intention of consumer reliance on the misinformation. Of the eight plaintiffs victories TOP (3) TEN $300M record-setting tobacco verdict Verdict: $56.6 million in compensatory damages and $244 million in punitives State: Florida Type of case: personal injury Status: Defense plans to appeal. Case name: Naugle v. Philip Morris USA Date: Nov. 19, 2009 Plaintiff s attorneys: Robert W. Kelley, Todd R. Falzone and Todd R. McPharlin of Kelley Uustal in Fort Lauderdale, Fla. Defense attorneys: Tom Quigley of Winston & Strawn in New York and Jennifer Brown of Shook Hardy & Bacon in Miami. 5 to date, this verdict, comprised of $56.6 million in compensatory damages and $244 million in punitives, is far and away the largest. Juries have awarded $7.8 million, $30 million, $8 million, $1.55 million, $1.3 million, $1.2 million and $5.3 million. There have also been two defense verdicts. In addition, while juries in prior cases have apportioned fault to the plaintiff ranging from 34 percent to 57 percent, jurors determined that Cindy Naugle was just 10 percent at fault. Naugle s attorney Robert W. Kelley, a partner at Kelley Uustal in Fort Lauderdale, said that several factors contributed to the size of the verdict: his client s powerful testimony, his success in blocking the defense from using its standard juror questionnaire, and, for the first time in an Engle case, a refusal to stipulate to the tobacco company s own valuation of its net worth. The verdict is also the largest award for a single plaintiff against a tobacco company, noted Edward L. Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston. While only 10 trials have taken place to date, many more cases are set to be tried in If similar verdicts are reached, the tobacco companies will need to reexamine their position of not settling cases, Sweda said. They cannot afford to take an unlimited number of nine-digit awards. In a written statement, Philip Morris USA said it plans to appeal the verdict. A walk to the stand Lucinda Cindy Naugle, 61, began smoking in 1968 when she was 20 years old. She smoked for 25 years, trying unsuccessfully to quit several times, and only with the help of the nicotine patch finally quit in Naugle suffers from severe emphysema as a result of her smoking, requiring her to use oxygen at all times and travel in a wheelchair, Kelley said. Her condition affects her ability to do anything and everything, he said. Before Naugle even took the witness stand the jury was able to see just how bad her condition was, Kelley said, because after walking the 15 feet from the counsel table to the witness stand, she had to take five minutes to catch her breath before she could testify. From the beginning of the trial, Naugle took responsibility for smoking and admitted fault to the jury. But Kelley said he tried to keep the focus on Philip Morris and its behavior, which was to refuse to accept any responsibility. I don t think juries appreciate that. He also objected to the defense s use of its standard juror questionnaire, which Kelley estimated contains 100 questions, most of them multiple choice, and runs about 25 pages. He believes the defense scans the questionnaires and then has its jury consultants and psychologists profile potential jurors for the best advantage. But having to conduct jury selection the old-fashioned way put them at an extreme disadvantage, Kelley said. Although the trial lasted three weeks, Kelley said his presentation was just two days during the first phase and about a day and a half during phase two. He used one expert during both phases of the trial, who testified about the effects of addiction on Naugle and later enlightened the jury about the tobacco industry s 50 years of distorting and denying the truth. Naugle s treating physician, a pulmonologist, also testified about her condition and her prognosis. He told the jury that she is going to need a lung transplant and explained the cost that entails and the difficulty of becoming a candidate and waiting for lungs to become available, which can be a long time, or never, Kelley said. Net worth After the first phase of the trial, jurors deliberated just 45 minutes before determining that Naugle was addicted to cigarettes and that addiction caused her emphysema. Despite their quick deliberations, Kelley said he felt very confident about the verdict. He only gave jurors one suggestion about an award. Naugle s doctor testified that it would cost $3.5 million for future medical care, and I said they should give her the benefit of the doubt on that, and assume she would live as long as possible with a great deal of medical needs, like oxygen and a wheelchair and a possible transplant, Kelley said. But I left the rest of it up to the jury. They awarded $56.6 million in compensatories. Kelley intentionally left the jury to its own devices for the punitive award. I didn t give them a dollar amount, he said. I told them I have four kids and sometimes I have to punish them. But what they hate the most is when I say, Continued on page 13

6 $89 MILLION By Justin Rebello [The jurors] wanted to let the community know they re disgusted with drunk drivers. Steven Bronson In one of the largest DUI damages verdicts in history, the family of a Missouri man killed by a drunk driver has been awarded $89 million. Although the trial lasted only one day, that was enough time for jurors to send a message to the community about the dangers of drunk driving, said plaintiffs attorney Steven Bronson of St. Louis. Bronson said that he tried the case with a theme of trying to send a message with the verdict. The plaintiffs did not call any expert witnesses, such as accident reconstructionists or economists. Instead, the only testimony came from state troopers at the scene of the February 2008 crash and the victim s family. Defense attorney Kevin M. Smith of Wichita, Kan., did not return phone calls seeking comment on the verdict. Dennis Riegel Jr. was 28 years Verdict: $89 million in compensatory damages State: Missouri Type of case: negligence Status: On appeal. Case name: Riegel v. Zerna old on the night of Feb. 2, 2008, when he and his fiancee, Christine Hodge, were driving down Missouri s Highway 100. They were returning from an area mall where they were picking out gifts for their wedding registry. While heading westbound on the highway, they were struck headon by a vehicle driven by Troy Zerna. According to the testimony of Hodge, the last thing she remembered saying before the crash was, That guy is going way too fast. Zerna had been driving nearly 60 miles per hour in a 45-mile per hour zone. Hodge was knocked unconscious in the collision and when she awoke, she had broken almost every bone in her face and fractured her femur. Doctors were unable to administer any pain medication for nine hours following the accident because she was 13 weeks pregnant and they had to run tests to make sure the medication wouldn t harm the fetus. She said the only thing she remembered after waking up from the crash was hearing the EMT attending to Dennis say, Code him meaning he was dead, said Bronson. Date: Nov. 23, 2009 TOP (4) TEN Missouri jury awards $89M in DUI case Plaintiffs attorneys: Steven Bronson and Mark Bronson of Newman, Bronson and Wallis in St. Louis. Defense attorney: Kevin M. Smith of the Law Offices of Kevin M. Smith in Wichita, Kan. istockphoto.com/jorge Gonzalez 6 After two weeks in the hospital, Hodge returned home where she began suffering from vaginal bleeding. After consulting her obstetrician, she learned that the impact of the crash had torn her placenta. Incredibly, five months later, she gave birth to a healthy daughter, Bailee. No experts According to Bronson, this entire story was relayed to jurors solely through Hodge s testimony. None of the doctors who treated her or her late fiance were called to the stand. Hodge provided medical bills and Dennis old pay stubs to help jurors determine the amount of the verdict. Bronson said he had a very clear message he wanted to send to jurors and that meant avoiding overkill. We certainly considered experts, but discovered well before trial that Christine was able to very articulately tell her story, said Bronson. The other major storyteller in the case was Zerna, in the form of a video deposition. Zerna is currently serving a 10-year prison term in connection with this accident and another DWI that occurred five months earlier. He was sentenced in May. In his deposition, Zerna, who was 20 years old at the time of the accident, explained that he had been involved in an argument with his girlfriend and drove over to his friend s house, where he stole a bottle of his father s whiskey. Zerna said he blacked out and didn t remember getting into the car. Police determined that his blood alcohol level at the time of the accident was.20, ten times the legal limit for a minor and more than twice the legal limit for an adult. Zerna had been driving on a suspended license at the time of the earlier accident and, as a result, he was only authorized to drive to and from work at the time of this one, said Bronson. Collecting damages According to Bronson, the defense did little to refute the plaintiff s arguments with the exception of deposing Christine Hodge and the state troopers. But the real challenge is still to come, said Bronson, as the plaintiffs attempt to recover the $53.5 million jurors awarded to Hodge for medical costs, pain and suffering and loss of wages and the $35.5 million awarded to the couple s daughter and Riegel s parents. Collecting the verdict will be challenging, acknowledged Bronson. We are looking at every avenue, though. Zerna did have minimum insurance coverage: $25,000 per person and $50,000 per occurrence. Bronson said that the huge verdict resulted from a combination of jurors not finding Zerna s apology to the family to be sincere and a desire to shed light on what he said is a major problem in the community. They wanted to let the community know they re disgusted with drunk drivers, said Bronson. It s a problem all over the city and state. They wanted to send a message to officials, like prosecutors, to let them know more needs to be done and to keep repeat offenders from being able to drive after a DUI. Questions or comments can be directed to the writer at:

7 $78.75 MILLION By Nora Lockwood Tooher Perhaps most damning was evidence that Wyeth ghostwrote dozens of medical articles minimizing the risk of breast cancer. In the largest individual hormone replacement therapy verdict so far, a Pennsylvania jury awarded $78.75 million in damages to an Illinois woman who claimed the hormone therapy replacement drug Prempro caused her breast cancer. The verdict included $3,747,344 in compensatory damages and $75 million in punitives against Wyeth Pharmaceuticals, a division of Pfizer. Connie Barton, 64, took Prempro between May 1997 and May Barton underwent a left mastectomy and reconstructive surgery following her breast cancer. In a reverse trifurcated trial, an eight-person jury awarded Barton $3.75 million in compensatory damages and determined that Wyeth s Prempro caused her invasive breast cancer. Jurors also found that the pharmaceutical maker deliberately ignored evidence that Prempro could cause cancer. In late October, the same jury awarded $75 million in punitive damages to Barton, but the amount was sealed for a month until Nov. 23, when another HRT trial in Philadelphia was completed. The two cases were the first of 16 bellwether trials in HRT mass tort litigation in Philadelphia s Complex Litigation Center, the Philadelphia Court of Common Pleas center for mass torts litigation. TOP (5) TEN Illinois woman wins $78.75M Prempro verdict The total damages of $78.75 million awarded to Barton are the highest awarded to an individual plaintiff in ongoing HRT litigation. (The plaintiff in the second bellwether trial in Philadelphia, Donna Kendall, was awarded total damages of $34.3 million.) Judge Sandra Moss, who is overseeing the HRT litigation in Philadelphia, said that the amount of punitives was sealed at Wyeth s request to ensure a fair trial in the Kendall case. Zoe Littlepage, who represented both Barton and Kendall, said she was angry that Barton was not allowed to reveal the amount of punitives she had been awarded at the time. It was very unfair for her not being able to talk about it, she said. Right at the last minute, Wyeth ran in with this emergency motion and kind of muzzled her. It made me very angry and upset. No one gets to gag other people except Wyeth, Littlepage said. Jurors outraged The trial lasted nearly six weeks and was divided into three sections. The first part of the trial focused on causation and damages, the second on liability and Verdict: $3.75 million in compensatory damages and $75 million in punitives State: Pennsylvania Type of case: product liability Status: Post-trial motions have been filed by the defense. Case name: Barton v. Wyeth Pharmaceuticals whether punitives were warranted and the third on the amount of punitive damages. Phase One answered the question: Did Prempro cause Barton s breast cancer? Had the plaintiffs lost Phase One, the trial would have been over. Littlepage said it was difficult to maintain continuity during the trial, especially because there were gaps of several days between each phase. It [was] hard to keep the jury s attention, she commented. Also, jurors had to award compensatory damages without having a real picture of [Wyeth s] conduct, she said. We could not even talk about Wyeth at all until the second phase, Littlepage said. Phase Two was the liability phase, which determined whether Wyeth negligently failed to adequately warn Barton s physician about the risks of Prempro, and whether Wyeth s actions were willful and wanton. During the second phase, Littlepage and her partner, Rainey Booth, presented evidence that Wyeth ignored red flags that showed HRT drugs increase the Date: Compensatory damages on Sept. 25; Punitive damages on Oct. 26 Plaintiff s attorneys: Zoe Littlepage and Rainey C. Booth of Littlepage & Booth in Houston. Defense attorneys: George McDavid of Reed Smith in Princeton, N.J., Lauren Handler of Porzio, Bromberg & Newman in Morristown, N.J. risk of breast cancer. Further evidence showed that the company actively tried to downplay studies by scientific institutions showing those risks. But perhaps most damning was evidence that Wyeth ghostwrote dozens of medical articles minimizing the risk of breast cancer and exaggerating the benefits of hormone therapy. The articles were published in medical journals under independent doctors names. A key witness was Wyeth s head of research, who testified in both the first and second phases of the trial. Littlepage said jurors told her after the trial that he was totally unbelievable. His demeanor and credibility really helped the plaintiffs case, she said. Phase Three was solely to determine the amount of punitive damages. Jurors responded with outrage to the evidence that the company misled the public and medical community, according to Littlepage. Jurors deliberated two hours after the first phase and awarded $3.7 million in compensatory damages on Sept. 25, then deliberated 40 minutes after the second phase before ruling on Oct. 23 that Wyeth was at fault and liable for punitive damages. The $75 million in punitives was determined on Oct. 26. The jury found Wyeth negligently failed to adequately warn Barton s doctors about Prempro s cancer risks and that failure played a role in her physician s decision to prescribe the drug. Defense lawyers were unavailable for comment. Questions or comments can be directed to the writer at: 7

8 $77.4 MILLION By Justin Rebello In one of the largest medical malpractice verdicts in the history of New York s Westchester County, a jury has awarded $77.4 million to the parents of Diego Baizan. Baizan, now 3, suffers from severe cerebral palsy and constant seizures as a result of injuries sustained during his birth in February His parents attorney, Randy Nassau of Yonkers, N.Y., said she We weren t going for numbers, just enough to take care of the [child]. Randy Nassau TOP (6) TEN $77.4 million for infant injured at birth Verdict: $77.4 million in compensatory damages State: New York Type of case: medical malpractice Status: The verdict was upheld on appeal and will be paid in full. Case name: Baizan v. St. John s Riverside Hospital hadn t anticipated such a large verdict, despite the severity of the injuries suffered by her clients child. We weren t going for numbers, she said. Just enough to take care of the [child]. Nassau said her greatest challenge was convincing jurors that Diego s injuries occurred at the hospital and could have been prevented, despite the fact that his mother, Mariana, wasn t even seen by doctors until just 69 min- istockphoto.com/piotr Sikora utes prior to going into labor. Frank Carrollo, the attorney for the defense, could not be reached for comment. Hospital short-staffed Mrs. Baizan arrived at St. John s Riverside Hospital at around 6:00 p.m. on Feb. 16, Mr. Baizan Date: May 8, 2009 Plaintiffs attorney: Randy Nassau of Fitzgerald & Fitzgerald, P.C. in Yonkers, N.Y. Defense attorney: Frank Carrollo of Rende, Ryan & Downs, LLP in White Plains, N.Y. 8 testified that she was left in the waiting room until the attending doctor on call, Dr. Shahram Rahman, was able to see her. Hospital documents show Mrs. Baizan was placed on a fetal heart monitor at 7:54 p.m. According to the complaint, the fetal heart tracings showed an abnormally fast heart rate of beats per minute. A vaginal examination was performed on Mrs. Baizan at 8:00 p.m. that showed her cervix was dilated and labor was ready to begin. Despite this, Rahman waited until 8:20 p.m. to perform a second vaginal exam. At 8:40 p.m., Mrs. Baizan was fully dilated. Diego was born at 9:03 p.m. Despite APGAR readings of 6 and 7, Diego required supplemental oxygen. Within a few hours of his birth, he was suffering constant seizures. There was ample opportunity to deliver the [child] on time, said Nassau. [Dr. Rahman] must have been overwhelmed because he was the only doctor there, or he would have seen this ahead of time. The plaintiffs argued that a Caesarian section should have been performed, but that didn t happen because the hospital was shortstaffed. They also argued that the fetal heart monitor readings showed that Diego needed to be delivered immediately, but doctors waited for over an hour. Further, an anesthesiologist wasn t called, even though that s standard procedure with abnormal readings. Medical experts called by the defense testified that a vaginal delivery was quicker than a Caesarian section. But Nassau countered that was because the hospital wasn t prepared to perform an emergency C-section. Nassau s own experts Dr. Jeffrey Koren, an obstetrician/gynecologist from Florida, and Dr. Daniel Adler, a pediatric neurologist from New Jersey testified that the fetal heart monitoring strips indicated that Diego s seizures began in utero, within an hour or two before delivery, while Mrs. Baizan was already at the hospital. This kid probably had a lack of oxygen before [arriving at the hospital], but in utero there is a There was ample opportunity to deliver the [child] on time. Randy Nassau reserve of oxygen. The baby can adapt, said Nassau. [However,] after awhile, there are only so many things that can happen before it becomes a permanent injury. The verdict After three hours of deliberations, the six-person jury awarded the Baizan family $77.4 million, including $23 million for past and future pain and suffering, roughly $6 million for future medical expenses, $4.9 million for future loss of earnings, $40 million for the cost of round-the-clock home care needed by Diego and $3 million for rehabilitation care. Dr. Rahman settled early in the trial for $2.1 million. Today, Diego is blind, suffers from constant seizures, cerebral palsy and severe developmental delays, and requires feeding through a tube. Nassau said she had initially put forth a pre-trial settlement offer that would cover only the future medical costs for Diego, but the hospital rejected it. We weren t going for anything crazy, said Nassau. Our economist came in and basically told the jury what it would cost to take care of [Diego], and they gave it to us. Questions or comments can be directed to the writer at:

9 $71MILLION By Correy E. Stephenson Alleging conversion and breach of fiduciary duty, one partner in a threeman water drilling company won $71 million against his partners after they tried to shut him out of the business. Dean Davenport formed a water drilling company with James Allen and Mark Wynne in The company s success drove the other two partners to try to push Davenport out, explained Tom Hall, who represented the plaintiff. Using a novel theory of conversion that the other two partners exercised dominion and control over Davenport s share of the company to his detriment Hall asked jurors for between $70 and $100 million, or one-third of the value of company. The evidence showed that this company had a value in excess of $200 million, said Hall, a partner at Hall and Bates in San Antonio. After two weeks of trial, a 12-person jury awarded Davenport $71 million $70 million in actual damages and $1 million in punitives. The hardest part of a case like this in today s climate is trying to get a jury thinking about awarding something like $70 million, Hall said. With damages that large, I was afraid the jury wouldn t take us seriously. Glenn Deadman, a sole practitioner in San Antonio who represented the defendants, refused to comment on the case. Although one of the defendants settled after trial, the other is appealing the verdict, and it is my custom and practice not to make any comment while a matter is still subject to litigation, Deadman said. Water, water everywhere The Water Exploration Co. was founded by the three partners in TOP (7) TEN Ousted water company partner wins $71M Relying on Davenport s knowledge of an untapped aquifer, the company quickly became successful, pulling in 7 figures a year, Hall said. Most of the water in south Texas comes from aquifers, as opposed to surface water, and Mr. Davenport knew from prior drilling experience of an underutilized and underappreciated aquifer that produces very large quantities of water, Hall said. The company drilled 47 successful, producing wells, which won it a very valuable contract to supply public water for Bexar County (where San Antonio is located). With the money pouring in, the other two partners wanted a 50/50 split instead of a one-third share, Hall said. They began cutting Davenport off from the business by refusing to let him see the books, threatening to sue him and his family members and telling him he d never see a penny from the business. These guys really had their foot on his throat for years, Hall said Davenport filed suit in The trial lasted 14 days, five of which were spent on the plaintiff s presentation. Verdict: $71 million total; $70 million in compensatory damages, $1 million in punitives State: Texas Type of case: conversion and breach of fiduciary duty Status: One defendant (James Allen) has settled; the other (Mark Wynne) filed an appeal in December. 9 Hall first had Davenport take the stand to testify about his experience and reasons for filing his lawsuit. He then called the defendants as his second and third witnesses. Hall said they claimed that Davenport had misrepresented to The hardest part of a case like this in today s climate is trying to get a jury thinking about awarding something like $70 million. Tom Hall Case name: Davenport v. Allen Date: Jan. 22, 2009 (compensatories); Jan. 23, 2009 (punitives) Plaintiff s attorneys: Tom Hall of Hall & Bates in San Antonio, Texas; F. Blake Dietzmann, sole practitioner in San Antonio; Timothy Patton, sole practitioner in San Antonio Defense attorney: Glenn Deadman, sole practitioner in San Antonio. them the completion dates on the wells, and that the plaintiff had shoddy drilling practices. These guys don t have the highest regard for honesty and truth, Hall said. After the trial Hall spoke with the jurors, who said they didn t like the defendants and believed they were lying, while they found Davenport to be an honest, forthright individual. Hall also put several experts on the stand. A geologist knowledgeable about aquifers testified, while an economist talked to jurors about the value of the company. Hall also subpoenaed a finance expert the defendants had hired for use in another lawsuit, who told the jury about the value of the wells. After seven hours of deliberations, the jury found that Allen and Wynne had acted with malice and conspired to deprive Davenport of his share in the company, awarding $70 million in compensatory damages. While jurors did find that the defendants had breached their fiduciary duty, they didn t award any damages on that count. Punitives and a settlement After the jury returned its $70 million compensatory verdict, the parties had the opportunity to put on additional evidence before jurors deliberated on punitive damages. Hall waived the opportunity, while the defendants put themselves back on the stand and basically testified they didn t have the money to pay the verdict, he said. I think the behavior of the defendants inflamed the jury in the first part of the case, [but] they spent their anger on the $70 million, Hall said, and decided not to award a large punitive award. The company itself is still in existence and doing business, although a receiver has been appointed to run the operation, Hall said. After the trial, one of the defendants James Allen settled with Davenport. As part of the agreement, Davenport took over his interest in the company, so he now has a two-thirds share. The third partner, Mark Wynne, is appealing the verdict. While Hall acknowledged that a large verdict is a cause of concern in an appeal to the conservative appellate court in Texas, he said the case is in very good shape. Questions or comments can be directed to the writer at:

10 $70 MILLION By Kimberly Atkins ATexas jury has unanimously handed down a $70 million verdict against an insurance company and its claims adjuster, finding that they recklessly failed to timely pay workers compensation benefits to a man who was severely injured in a fall on the job. The decision to deny the claim was not based on what the law was supposed to be, said Tom Rhodes, one of the lead [The plaintiff] had gone more than four months with no income whatsoever. He didn t know where his next paycheck would come from. Tom Rhodes plaintiff s attorneys. It was based on the agenda the insurance company had. Charles Tate, a 52-year-old maintenance supervisor at an apartment complex, was severely injured after falling while using a chain saw on a ladder 30 feet in the air. He suffered injuries to his neck, TOP (8) TEN $70M for injured worker in workers comp case Verdict: $30 million in statutory damages, $20 million for past and future mental anguish and $20 million for the plaintiff to use to pay his attorney fees. State: Texas Type of case: unfair and deceptive trade practices Status: No change. Case name: Tate v. Discover shoulder and leg. After the fall, Tate sought benefits, which would have totaled roughly $1,600 a week under the Texas workers compensation statute. The statute requires, among other things, that an applicant be actively engaged in the search for work or in a rehabilitative or work training program. At the time, Tate was training to become a real estate agent. Tate applied for benefits on a quarterly basis, and each time the request was denied by the insurance company after the claims adjuster disputed Tate s eligibility. Each time, the denial was reviewed by a mediator, who ruled in Tate s favor, his attorney said. The insurer then appealed the ruling to a panel of the Texas Department of Insurance, Division of Workers Compensation. The DWC panel ruled each time that Tate was entitled to receive benefits. The insurance company eventually paid the benefits after months of delays for each quarter. In the meantime, Tate suffered economic hardship and mental anguish, his attorney said. He had gone more than four months with no income whatsoever, Rhodes noted. He didn t know where his next paycheck Property & Casualty Co. Date: Dec. 1, 2009 Plaintiff s attorneys: Tom Rhodes and Mark D. Wolfe of the Tom Rhodes Law Firm in San Antonio, Ethan L. Shaw of Moore Landrey in Austin, Texas; Joe K. Longley, Attorney at Law, Austin, Texas. Defense attorneys: Denton, Navarro, Rocha & Bernal, P.C, in San Antonio. 10 would come from. When Tate didn t pass his real estate exam, the insurance company took an even harder stance, despite the fact he d been so badly injured, Rhodes said. They didn t like that, he said. They wanted him to be out looking for a job as a busboy or something. After repeated benefits denials, Tate eventually filed suit against the insurance company and claims adjuster under a Texas unfair and deceptive trade practices statute. Crucial evidence and key witness At trial, Rhodes said he presented evidence that included an internal memo submitted by the claim adjuster to the insurance company while the company was appealing several of the intermediate rulings. The memo in the file said, Just go ahead and pay him this quarter, Rhodes recounted. That will look better for the DWC panel. Rhodes sought to introduce evidence of past allegations of mishandled claims by the adjuster. The evidence was initially excluded on a motion in limine. But later, the defendants attorneys made a move that helped the plaintiff. They asked about the allegations, Rhodes said. After the defendants opened the door, the judge allowed the evidence to be heard by the jury. While several witnesses took the stand, including a representative from the insurance company who testified that the decision to deny the claims was wrong, it was Tate himself who provided the most important testimony. He was a really good witness, and explained how he d never done anything but work hard all of his life, Rhodes said. During the trial the defendants istockphoto.com/tyler Boyes made only one settlement offer: $25,000. We had more confidence in the jury, and we felt we had a very strong case, so the plaintiffs team rejected the offer, Rhodes said. In the end the jury unanimously found that the insurer and claims adjuster knowingly and recklessly violated the state statute, and awarded Tate $30 million in statutory damages, $20 million for past and future mental anguish and $20 million for him to pay his attorney fees. There was also an additional award for interest and future attorney fees, since the defendants have indicated that they will appeal the verdict. Messages left with the attorneys who represented the insurance company, Discover Property & Casualty, and the claims adjuster, JI Specialty Services, were not returned. Questions or comments can be directed to the writer at:

11 TOP (9) TEN $65 MILLION 21-year old crash victim awarded $65M It was our position that the truck company had not really made a significant effort to make sure its drivers were complying with the regulation. James R. Freeman By Kimberly Atkins AFlorida jury has awarded $65 million to a 21-yearold woman whose car was broadsided by a truck in 2007, leaving her with brain damage so severe she can no longer speak or care for herself. The six-person jury hearing the case found that the trucking company and the driver bore 100 percent of the responsibility for the crash under the state s comparative negligence law. The plaintiff s attorneys argued that the driver failed to take a mandated rest period before operating the truck, and that his view of traffic was obstructed by another tractor trailer. We took the position that if you can t see, you shouldn t go, said James R. Freeman of the Tampa, Fla. office of Wilkes & McHugh, repeating a phrase he used with Verdict: $65 million in compensatory damages State: Florida Type of case: negligence Status: The case is on appeal. Case name: Lymon v. Bohn 21-year old Kendra Lymon (below) was severely injured when a truck broadsided the Dodge Neon she was driving (above). The plaintiff s attorneys argued that the driver failed to take a mandated rest period before operating the truck. the jurors several times. Chance takers are accident makers. College student In August 2007, 19-year old Kendra Lymon was about to begin her second year of college studying psychology. She was driving her Dodge Neon in Zolfo Springs, Fla. when she approached an intersection. A tractor-trailer owned by Bynum Transport and operated by Robert Bohn was heading in Date: March 18, 2009 Plaintiff s attorneys: Jim Freeman, Kathleen C. Knight and Bennie Lazzara, Jr., of Wilkes & McHugh in Tampa, Fla. Defense attorney: Allen K. von Spiegelfeld of Clarke, Banker Lopez Gassler in Tampa, Fla. 11 the opposite direction. Bohn s truck, which weighed between 28,000 and 30,000 ponds, made a left turn and hit Lymon s car broadside, crushing the car and sending it careening off of the highway. Lymon, who could speak multiple languages and worked parttime at the Florida Institute for Neurologic Rehabilitation caring for children with brain damage, had no pulse when paramedics arrived at the scene. The lack of oxygen caused severe brain damage, leaving her unable to speak, feed herself or control her bladder. She can only walk with assistance, often needs a wheelchair and requires round-the-clock care. At trial, attorneys for both sides offered the testimony of expert witnesses, who disagreed over who was at fault. The defendants expert said the evidence suggested that Lymon had been speeding and could have avoided the collision if she had obeyed the speed limit. The plaintiff s expert testified that speed was not a factor. Freeman said a turning point in the trial was the testimony of Ralph King, an eyewitness who was driving near Lymon at the time of the crash. He said that the plaintiff had not been speeding, and that she had a green light at the intersection directly contradicting Bohn s testimony that he had a green arrow Continued on page 13

12 $60 MILLION By Justin Rebello ANew York City jury has awarded $60 million to a woman left deformed by a botched thigh lift. Alison Hugh, 44, claimed the surgery left her with a deformed vagina and frequent urinary tract infections. According to her attorney, Andy Alonso of Parker Waichman Alonso LLP in Great Neck, N.Y., the defendant in the case, Dr. Ferdinand Ofodile, did not warn We were not expecting a number anywhere near as substantial. Andy Alonso Hugh of the scarring or stretching to the vaginal area that is a common risk of the procedure. He also assured her that the way he performed the surgery would offset any risk. She woke up [following the surgery] to find these incisions in her groin, said Alonso. The doctor tells her in the recovery room that they had to take more skin than they had intended. Stephen Rubin, the attorney for the defense, could not be reached for comment. Only Dr. Ofodile was named in TOP (10) TEN N.Y. woman wins $60 million in med-mal suit Verdict: $60 million in compensatory damages State: New York Type of case: medical malpractice Status: Post-trial motions are still pending. Case name: Hugh v. Ofodile the lawsuit. Alonso was unsure about a possible appeal. A different kind of procedure In November of 2002, Alison Hugh, 37 at the time, underwent Date: July 15, 2009 Plaintiff s attorney: Andy Alonso of Parker Waichman Alonso LLP in Great Neck, N.Y. Defense attorney: Steve Rubin of Garson Decorato & Cohen in New York City. 12 istockphoto.com gastric bypass surgery. Over the next 18 months she lost approximately 200 pounds. Beginning in December 2003, Hugh began looking for a plastic surgeon who could remove the excess skin that had formed between her thighs. Hugh also suffered from keloids, a common condition in the African American community that results in scarring brought on by an overgrowth of tissue following a skin injury. Keloids can cause pain and discomfort. Hugh was informed that removing her excess skin would require a medical thigh lift. But after doctors in New York, Philadelphia and Kingston, Jamaica told her that the surgery could leave her with deformed labia, she decided against the procedure. A year later, a friend recommended that she see Dr. Ofodile at North General Hospital in Harlem. Hugh testified at trial that when she went in for her initial consult, she expressed her concerns about the operation, but Dr. Ofodile allegedly replied that he performed a different kind of procedure. He told her they would go in through the outer aspect of the thighs to avoid the risk of vaginal pulling. She hears this, and of course agrees to the surgery, said Alonso. But a week after the March 2005 surgery, Hugh began noticing a wound breakdown. Her vagina had become spread open. Over the next eight months, it had been pulled open and was openly scarring. According to Alonso, the doctor told her specifically that the procedure did not involve a labial pulling risk, but the manner with which he carried out the surgery was a complete deviation from what he told her at the beginning. She s normal According to Alonso, the defense asserted three primary defenses in the case. First, Dr. Ofodile testified that he informed Hugh of all of the risks prior to surgery, including the possibility of labial deformity. Second, the defense claimed Hugh should assume some of the blame because she had previously researched the procedure and knew of the inherent risks. Alonso said he defused these defenses by pointing to Hugh s chart from the surgery consult. He was able to show jurors that there was no mention of the risk of labial pulling anywhere in the document. In fact, the words labia or vagina never appear anywhere Continued on page 14

13 Florida jury awards $330M for DUI death Continued from page 4 jury to her head. The women on the jury all mothers, according to the forewoman viewed photos of the accident scene, and heard testimony from Shelby s grandmother and mother. They also listened to an eyewitness, a county deputy sheriff who saw the collision while on routine patrol. Two emergency personnel who responded to the scene were still so distraught over what they saw that they became teary eyed at the trial, according to Yerrid. What are you going to do about it? At trial, the jurors watched a video of Shelby s life, from baby to Continued from page 5 I love you, but you did this bad thing and you know you have to be punished. How do you think you should be punished? He told the jurors to listen to the closing argument from the defense and see how it suggested Philip Morris should be punished. The defense attorneys didn t suggest an amount, which Kelley said could have been a factor in the preteen. And then they saw video footage of her funeral. Yerrid, who has amassed a string of multi-million-dollar verdicts, said he didn t intentionally pick a jury of all women. There were simply more women in the jury pool. He said he made it clear to the jurors that their verdict was not intended to replace laws about drunk driving, but to voice their outrage over the problem. What I said was, it s not so much that the laws had failed, or that there weren t adequate laws, but that there comes a time in America when people have to understand that the jury system is critical, he recalled. It s time to stand up and supplement the law by sending a message that we as a society will not allow unsafe 13 size of the verdict. In all the prior Engle cases, the plaintiffs attorneys stipulated to the defense valuation as to the net worth of the company, Kelley said. But he objected, and presented expert testimony from an economist. The economist testified that Philip Morris, a wholly-owned subsidiary of Altria Group, can manipulate its net worth downward by sending its assets up to the parent company. He testified that through the end of the third quarter of 2009, Philip Morris had almost $3 billion in excess free cash (meaning after it paid all its employees and other obligations). Averaged out on a daily basis, that comes to about $10 million per day, Kelley said. The dollar amount the defense things to occur. I said to them, We already know what happened. What are you going to do about it? Yerrid said the verdict was also aimed at bringing closure for Shelby s family. And he credited Marcone, who did not contest punitive damages. Reynolds and Marcone understood the value of sending a message on punitive damages, Yerrid said. Ironic as it sounds, that was the only way he [Marcone] could really give back in terms of truly trying to do restitution, by allowing that message to go forward, Yerrid said. In an ironic twist, the judge who oversaw the civil trial was the same judge who sentenced Marcone to 13 years one year for each year of Shelby s life. Yerrid said he asked the jury to multiply compensatory damages by a multiplier of four. They thought they needed to do a little extra, so they went by [a multiplier of] five, he noted. The verdict was announced on Yerrid s 60th birthday, and the veteran trial lawyer said it was one of the most satisfying of his career. Isn t it great when both the victim and the person that caused the tragedy in effect act together with a community to send a message across the country that [drunk driving] won t be tolerated? he remarked. Questions or comments can be directed to the writer at: 21-year old crash victim awarded $65M Continued from page 11 when he began taking the left turn. No rest period A lynchpin of the plaintiff s case was a federal regulation that requires truck operators to take 10 hours of off-duty time from any job before operating a big rig. Freeman argued that Bohn, who worked for Bynum Transport part-time, had just come off a 24-hour shift at his full time job of battalion chief for Polk County Fire Services when he picked up the tractor trailer. He had planned to haul juice to Atlanta about 500 miles away that same day. Bohn testified that he had not been on duty, but was merely on call, satisfying the rest requirement. But Lymon s attorneys presented evidence of computers entries made by Bohn less than 10 hours before picking up the truck. They also argued that Bynum Trucking had no records of onduty time for Bohn before the accident, despite his full-time job with the fire department. It was our position that the truck company had not really made a significant effort to make sure its drivers were complying with the regulation, Freeman said. In the end, the jury found that Lymon was blameless in the crash and awarded her compensatory damages totaling $65 million for her injuries, past and future medical expenses, lost earnings ability and pain and suffering. The award is believed to be one of the largest in Polk County history. Freeman said he did not seek punitive damages because it would have prolonged the trial, causing hardship for Lymon s family. Lymon s mother and other $300M record-setting tobacco verdict family members care for her around the clock, Freeman said. The family has been taking care of her for two years, he said. Her mother quit her job [to] to prevent her daughter from going into a nursing home. Calls seeking comment from Allen K. von Spiegelfeld, who represented Bohn and Bynum Transport, were not returned. Freeman said that the defendants have ordered portions of the trial transcript, an indication that an appeal may be forthcoming. Questions or comments can be directed to the writer at: sought to have the plaintiff agree to was significantly lower $1.6 billion. After Kelley reviewed the numbers in his closing argument, he reminded jurors they had been in the courtroom for roughly 21 days. $10 million per day over a 21-day period could have formed the basis for the $244 million punitive award, he speculated. Questions or comments can be directed to the writer at:

14 Quirky trial leads to $370M defamation verdict Continued from page 3 by the seat of my pants. It makes for tense stuff but exciting stuff for the jury, said Parris. He began by trying to rile Marciano, asking him if his limos were parked illegally: You do know that a red section means no parking, don t you? Parris asked. He s sooo charming with his French accent. I was trying to get him angry [to show] that [he thinks] even the traffic laws don t apply to him, said Parris. Marciano, who grew up in France, testified that the reason he could not prove his case was that he was unable to get records from Bank of America for approximately two dozen accounts that he claimed were falsified, although he maintains 15 legitimate accounts. Key admissions Parris never succeeded in rattling Marciano, but he did get a few key admissions that may have swayed the jury. For example, Marciano admitted to investigating his son years ago and putting a tracking device on his wife s car when he suspected her of infidelity. He also admitted to taking out ads calling the judge anti-semitic because she likened him to a slippery eel for evading his deposition. Parris: I m trying to find out what your limits are. Marciano: My limit? Parris: Yes, your limits about who you will investigate, who you will follow, who you will put tracking devices on, who you will put camera on, who you will bug. By the time he took the stand, the jury already had an idea of how far Marciano was willing to go. Choi, the lead plaintiff who worked for Marciano for 17 years, broke down in tears several times as she testified about threatening s and faxes Marciano sent, accusing her of being an embezzler and her husband, a Presbyterian minister, of being a moneylaunderer. Abat, another plaintiff, who earned $34,000 as a receptionist, testified about a 1099 she received in the amount of $1 million which led to an IRS audit. A police officer whom Marciano hired to investigate the alleged theft testified that he found no evidence of wrongdoing. The jury also saw a 2008 letter from the sheriff s department indicating that despite a thorough investigation and priority status given to the matter, no evidence warranted criminal charges Marciano wanted the department to pursue. But on the stand, Marciano said he will continue to prosecute his cases against the former employees, calling it a crusade. Parris: Do you have any feeling that maybe you owe [the plaintiffs] an apology for what you ve done to them? Marciano: Is a joke? I m asking seriously, is a joke? Parris: I m asking you if you have any remorse at all. Marciano: Not at all. Punitives The judge had opened the door to punitive damages by finding Marciano s conduct malicious and oppressive during the liability phase. David Wheeler, a business litigator at Wheeler & Sheehan in Westlake Village, Calif., argued the punitive damages portion of the trial. His key witness was Marciano s former accountant who testified he had seen a document N.Y. woman wins $60M in med-mal case Continued from page 12 in the entire chart, said Alonso. The third defense, and the one that Alonso claimed incensed the jury, was that Hugh s vagina was actually normal. The defense brought in the chief of gynecology at the hospital as an expert witness to testify that her vagina was a normal size. He testified that if you lined up one thousand vaginas, there would be no evidence in [Hugh s] that would suggest an injury, said Alonso. This defense was at first a tripping point for the plaintiff s case, Alonso said, particularly when his own witness, Hugh s treating gynecologist, said her vagina following the surgery was not widened to an abnormal size. To counter this, Alonso showed his witness a file photo of Hugh s vagina from before the surgery to showcase the stark differences. Once he made this point, Alonso said, the jury became increasingly angry at the defense s continued assertion that Hugh did not suffer any deformities from the surgery. During voir dire, Alonso made it a point to try to end up with a jury comprised of more women than men. Considering the nature of the case, we figured she was better served by women, said Alonso. The jury, comprised of four women and two men, needed two weeks of trial and four hours of deliberations to decide to award Hugh $60 million, $10 million for past pain and suffering showing Marciano s net worth was $300 million, Wheeler said. During the trial, there was substantial evidence that he spent over $1 million in cash per year, owned three mansions in Beverly Hills, plus collections of guns, coins and rare watches, and sold a [Boeing] 737, said Wheeler, who contends that under California law, such evidence of financial condition can be used to prove the amount necessary to punish and deter, without further evidence of net worth. He made a decision not to suggest an amount, instead leaving it entirely up to the jury. We wanted it to be a message he could not ignore that came from the jury, not from me, not from my clients, Wheeler said. And send a message they did. In addition to an eye-popping $345 million in compensatories, the jury also awarded $25 million in punitives. Damages were split evenly among the five plaintiffs, each receiving $35 million on the defamation claims, $34 million for the emotional distress claims and $5 million in punitives. Questions or comments can be directed to the writer at: and $50 million for future pain and suffering. Alonso admitted he was surprised by the size of the award. We were not expecting a number anywhere near as substantial, said Alonso, noting that the defense did not make any pretrial settlement offers. But I think the defense of the case may have led the jury to give an award larger than normal. Questions or comments may be directed to the writer at: 14

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