the top 100 verdictsof 2012

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1 the top 100 verdictsof 2012 March 4, 2013 The cover is customized in collaboration and for the sole reprint purposes of Travelers.

2 the top 100 verdictsof 2012 Every year, The National Law Journal s VerdictSearch affiliate scours the nation s court records in search of the largest verdicts; it also consults with practitioners and with additional ALM Media LLC publications. The key here is what the jury awarded; this list does not account for judicial reductions, offsets or appeals. top 100 verdicts of 2012 Top verdict categories Dollar value of Top 100 verdicts by cause of action, in millions. Alcohol sold to minor led to fatal crash, family alleged Case Type: Negligent Service of Alcohol Dram Shop Motor Vehicle Broadside Motor Vehicle Multiple Vehicle Wrongful Death Survival Damages Case: Estate of Garcia v. Best For Less Food Mart Inc., Hillsborough Co., Fla., Ct., 09-CA-31023, 5/10/2012 Plaintiffs Attorney: William A. Gilbert, Dano & Gilbert, Moses Lake, Wash.; Rolando J. Santiago, RJS Law Group, Apollo Beach, Fla. Defense Attorney: Pro se Jury verdict: $716,472,101 Facts & Allegations On Feb. 28, 2008, plaintiff s decedent Samuel Garcia III, 32, a hydraulic diesel Intellectual Property 4,396 1 Wrongful death 150,434 2 Fraud 1,161 2 Intellectual property 5,324 3 Nursing homes 1,100 3 Toxic torts 1,901 4 Medical malpractice 1,031 4 Products liability 1,381 5 Dram shop Fraud Breach of contract Breach of contract Breach of fiduciary duty Medical malpractice Employment Motor vehicle Workplace safety Medicaid fraud Products liability Sexual assault 139 Source: VerdictSearch. Figures are rounded to the nearest $1 million. mechanic, was stopped in a Chevrolet Caprice intending to exit Circles Restaurant at 1212 Apollo Beach Blvd. in Apollo Beach. At the same time, David Holdsworth was traveling 95 mph in a posted 35-mph zone on Apollo Beach Boulevard when he rounded a slight curve in the roadway and lost control of his vehicle; he overcorrected his steering, causing the vehicle to yaw and go off the road, at which time he collided into the driver s side of Garcia s vehicle with his Chevrolet Camaro. Garcia died minutes later at the scene. Holdsworth, 17, was tested and found to have a blood-alcohol level of.136 an hour after the crash. According to Garcia s mother, during the day prior to the collision with her son, Holdsworth had consumed alcohol that was sold to him at Best For Less Food Mart at 6020 North U.S. Highway 41 in Apollo Beach. Garcia s mother, as personal representative of her son s estate, sued the convenience store, coowners Nasser Ayyoub and Wendy Ayyoub (who are husband and wife), and store employee Osama Ayyoub (Nasser Ayyoub s cousin) for claims of dram shop and vicarious liability. At the time of trial, the store was named Apollo Beach Food Mart as a result of ownership transfer to Nasser Ayyoub s father (who lives in Israel) in January Apollo Beach Food Mart was also named as a defendant. In December 2009, Holdsworth pleaded guilty to negligent homicide, and is serving a five-year sentence in the Florida state prison system. In a separate suit, the plaintiffs settled with Holdsworth in the underlying matter for an undisclosed amount in November At trial, the court granted summary judgment against the defendants, and the case was tried on the issue of damages. Injuries/Damages aorta, rupture; aorta, tear; death; emotional distress Garcia died as a result of a torn/ruptured aorta as a result of blunt-force trauma. It could not be determined at what time he died following the crash, but according to plaintiffs accident reconstructionist expert, an individual suffering a mortal wound such as Garcia s could live from 15 seconds to 20 minutes. Garcia s time of death could not be established because the crash pushed his vehicle through a high-voltage transfer station. As a result, emergency responders were unsure of the status of the exposed cables, and had to wait until it was determined that it was safe to approach Garcia s vehicle. By the time they reached Garcia, he was dead. The plaintiffs sought to recover $6,041 in funeral expenses and $384,000 in loss of net accumulations over Garcia s lifetime. According to Garcia s mother, Garcia played for various adult 2

3 hockey teams and volunteered in youth hockey. Garcia s mother and father each sought to recover damages for pain, emotional distress and mental anguish. According to plaintiff s mother, Garcia, who was engaged at the time of his death, was a warm and caring individual whose passions included hockey and cars, and that he was building a race car in his garage prior to his death. His mother sought to recover damages for pain, suffering and emotional distress on behalf of her son. When presenting their case for punitive damages, the plaintiffs maintained that the defendants willfully and wrongfully sold alcoholic products to minors, including Holdsworth, whose actions caused the death of Garcia. According to testimony of Holdsworth and supporting testimonies of other involved teenagers, Holdsworth purchased alcohol on two separate occasions on Feb. 28, 2012, from Best For Less Food Mart. Initially, Holdsworth and another teen left school at approximately 3 p.m., and Holdsworth bought a 12-pack of beer and two Tilt alcoholic beverages. The two teens went to a local park, met with another teen and drank the alcohol. When one of Holdsworth s friends had to go home, Holdsworth and the remaining friend returned to Best For Less Food Mart and purchased a second 12-pack of beer and two bottles of Old English malt liquor. The two teens went to a local beach and drank the alcohol. Holdsworth received a call from his mother at approximately 6:30 p.m. telling him he needed to get home for dinner. En route to his residence, Holdsworth crashed into Garcia s vehicle. According to plaintiffs accident reconstruction expert, Holdsworth s blood-alcohol level was about.151 at the time of the crash. According to the testimony of the teens involved, Best For Less Food Mart was known among their high school peers as a place where they could buy alcohol. According to trial testimony, the store sold alcohol to children as young as 14. Witnesses stated the store had a specific method when selling to children. The kids had to pay cash, and they were charged a premium of a few dollars more than the marked price for the liquor. The clerk would then package the alcohol out of sight of customers in the store and the teen would walk out with a box or paper bag containing the alcohol. Plaintiffs alcohol statistics expert, citing a 2009 University of Miami study, testified that among Florida high school seniors, more than 78 percent reported having tried alcohol at least once, 55.6 percent reported using alcohol more than once, and 31.2 percent reported past-30-days-use. In addition, among Florida sixth graders, 23 percent reported using alcohol more than once, and 9.9 percent reported past-30-days-use. About one out of six Florida students (16.4 percent) reported binge drinking within the past two weeks, 4 percent of whom were sixth graders. The expert said that traffic crashes involving minors and alcohol cost Florida residents in excess of $642 million annually, and that the total cost of underage drinking in Florida in 2009 was $3.073 billion. The defendants denied the allegations. (The defendants attorneys withdrew their representation during the course of litigation prior to trial. In June 2010, Lloyd s of London, the defendants insurer at the time of the accident, was able to withdraw through a declaratory relief action. As a result, the defendants were not insured at the time of trial.) Nassir Ayyoub testified that he and store personnel always ID customers who are buying alcohol and neither he, nor anyone employed by the store, had ever had any problems with the law in regard to selling alcohol to minors. Plaintiffs counsel impeached Nassir Ayyoub s testimony by producing two citations for selling alcohol to minors that were issued to Nassir Ayyoub in 2005 and an employee, Osama Ayyoub, seven months after the Feb. 28, 2008, crash. Result The jury apportioned liability among the five defendants: Best For Less Food Mart at 5 percent, Nasser Ayyoub at 35 percent, Wendy Ayyoub at 5 percent, Osama Ayyoub at 20 percent and Apollo Beach Food Mart at 35 percent. It determined that damages totaled $716,472,101. Workers severely burned in grain elevator explosion Case Type: Fire Premises Liability Dangerous Condition Workplace Workplace Safety Worker/Workplace Negligence Case: Jentz v. ConAgra Foods Inc., S.D. Ill., 3:10-cv MJR- PMF, 5/31/2012 Plaintiffs Attorney: Robert A. Clifford, Clifford Law Offices, Chicago; Marc A. Taxman, Anesi, Ozmon, Rodin, Novak & Kohen, Chicago Defense Attorney: John W. Patton Jr., Patton & Ryan, Chicago; John G. Schultz, Franke, Schultz & Mullen, Kansas City, Mo. Jury verdict: $181,139,999 Facts & Allegations On April 27, 2010, plaintiffs John W. Jentz, 38, Robert Schmidt, 36, and Justin Becker, 31, were injured at a ConAgra Foods Inc. facility in Chester when a grain elevator exploded. The men were removing equipment from a concrete grain bin at a flour-milling site owned and operated by ConAgra Foods. The explosion occurred within and around a concrete grain bin referred to as Bin C15. That bin was used by ConAgra to store material known as pelletized wheat middlings. At the time of the explosion, Jentz and Schmidt were employed by A & J Bin Cleaning LLC. Becker was employed by West Side Salvage Inc. They and other employees of West Side Salvage were at the facility near Bin C15 attempting to remove the wheat middling pellets. Jentz, Schmidt and Becker sued ConAgra Foods on negligence theories. Becker sued A&J Bin Cleaning as well. Similarly, Jentz and Schmidt also sued West Side Salvage. The three separate actions were consolidated. Prior to the explosion on March 12, ConAgra became aware that there was an issue with Bin C15. The next day, an individual from West Side Salvage inspected the bin and recommended to ConAgra that it immediately hire West Side Salvage to address the situation. Despite being told that the bin was a ticking time bomb, ConAgra officials instead attempted to look for a cheaper contractor to handle the situation. For several weeks various ConAgra employees expressed their concerns to management that the bin was going to explode and that the fire department should be called, but those concerns were not heeded. Eventually ConAgra engaged West Side Salvage and a subcontractor that West Side Salvage hired, A & J Bin Cleaning. A & J arrived at the facility and began its work on April 20. Prior to West Side Salvage s arrival, ConAgra employees had allegedly been monitoring the bin; however, all data of temperature recordings were lost after the explosion. There were reports of smoke and high temperatures to ConAgra management, including a documented temperature reading recorded in a log book as high as 251 degrees. These employees requested that the fire department be called to the scene, but those requests were ignored. Several of these employees testified at trial, that, in their opinion, ConAgra was putting money over safety by not addressing the issue of the hot pellets in Bin C15 immediately and instead delaying by shopping around for a cheaper contractor. On the day of the explosion, the ConAgra employee responsible for overseeing the project was asked to call the fire department on at least two occasions because of the condition of the bin. Instead of calling 911, this employee called the local fire chief s private number to inquire when he could do a visual inspection of the bin. In addition, this same employee was calling the ConAgra corporate safety manager in Omaha, Neb., multiple times all day relaying concerns about the escalating danger in the bin. Ultimately, at about 4 p.m., he again called the fire department, and while on the phone with the fire chief the bin exploded, seriously injuring the plaintiffs. Moments before the explosion, the two most seriously injured plaintiffs, Jentz and Becker, were sent back into the bin to get equipment out of the way for the fire department. The defendants largely blamed each other for the occurrence of the explosion and filed thirdparty or cross-claims for contribution against each other in all three of the plaintiffs cases. ConAgra also claimed that West Side Salvage is liable for indemnity based on an indemnity provision claimed in the work order contract, the existence of which West Side Salvage denied. ConAgra Foods filed third-party and crossclaims against West Side Salvage and A & J Bin Cleaning to recover its costs to repair damage to its. A & J Bin Cleaning also brought a counterclaim against ConAgra to recover for damage to A & J s equipment and lost profits incurred as a result of not being able to complete its contract. Each defendant denied that it is liable to the plaintiffs directly and also argued that the plaintiffs own negligence in how the cleanup operation was undertaken contributed to the accident. 3

4 The defendants further denied that they were liable to each other with regard to the defendants respective claims for contribution, property damage and/or lost profits. Furthermore, West Side Salvage and A & J disputed the nature and extent of the damages claimed by ConAgra on the grounds that cost of repair is not the proper measure of ConAgra s alleged property damage. Justin and Amber Becker settled with A&J Bin Cleaning prior to trial. The case proceeded to trial with the Becker claims against ConAgra and the Jentz and Schmidt claims against ConAgra and West Side. Injuries/Damages burns; burns, first degree; burns, fourth degree; burns, second degree; burns, third degree; debridement; eye; face; hand; head; loss of consortium; neck; posttraumatic stress disorder; respiratory; skin graft All three plaintiffs suffered severe burns resulting in scars and disfigurement. Jentz suffered second, third and fourth degree burns to approximately 75 percent of his body. He was hospitalized in St. Louis area hospitals (first Barnes Jewish and then St. John s Mercy) from April 27 to June 22. He was subsequently transferred to Regions Hospital in Minneapolis. He had multiple grafting, excision and debridement procedures during his hospitalization in St. Louis. He can only sweat on two spots on his body which limits his ability to be outside. He needs to be in a controlled environment as a result. This has limited his ability to work and engage in activities outside like fishing and snowmobiling. Jentz incurred over $1.8 million dollars in medical bills. He has not yet reached maximum medical improvement and it is unlikely that he will ever work again. Schmidt sustained second degree burns to his hands and neck. He incurred $67, in medical bills and was off work for three months. He was hospitalized at St. Johns from April 27 to April 30. He had a debridement procedure performed on his hands while at St. Johns. He was off work for three months. His hands have hypersensitivity to the cold. Additionally, he was diagnosed with post traumatic stress disorder (he was in a one-man, open air elevator about half-way down the 120 foot shaft when the explosion occurred, saw the fireball coming at him and felt himself on fire). He has nightmares and panic attacks during thunderstorms. Becker was burned over 12 percent of his body. The areas most severely affected were his entire face and head and both hands. He required complete grafting on both hands with skin harvested from his thighs. He also required grafting on his forearms and biceps. Justin suffered an inhalation injury when he inhaled the super heated fire, smoke and air at the time of the explosion. He suffered burns to his lips, tongue, throat, trachea and most significantly his lungs. Justin required 80 days of ventilator support for acute respiratory distress syndrome and respiratory failure. His lungs were permanently damaged and his ability to transfer oxygen from his lungs into his blood stream has been permanently diminished. Becker was hospitalized in the intensive care unit of Mercy Hospital in St. Louis until July 26. He suffered multi-systemic compromise and organ damage during his recovery, including kidney failure that necessitated dialysis; liver failure, neurologic storms and a seizure. His recovery was complicated by an MRSA infection, urinary tract infection, and blood infection. He required placement of a G-Tube for feeding until Aug. 15, a tracheostomy for ventilator support, severe deconditioning, and critical illness polyneuropathy and myopathy (which is severe and permanent nerve and muscle damage from the critical illness and/or toxins from the incident). Becker was then transferred by ambulance on July 26 to St. Luke s Hospital in Cedar Rapids, Iowa, for rehabilitation. Justin remained there until Aug. 27. He continues with his outpatient care, treatment and testing to this day. Becker suffered burns to both eyelids and both eyes resulting in severe ectropion, which is the retraction (or melting in) of his eyelids. He also sustained severe corneal scarring on both eyes. Justin underwent two surgeries to rebuild his eyelids and then a cornea transplant on his left eye. He now wears thick glasses to correct his vision and he did not wear glasses prior to the trauma. He may need a cornea transplant on the right and a replacement of the corneas again on both the left and right. He still has corneal scarring and severe astigmatism in both eyes. Becker has permanent medical restrictions. He is only permitted to work two hours per day in a sedentary position that is climate controlled and does not involve lifting over 20 pounds or dexterity. His hand strength and coordination are compromised from the grafting and the polyneuropathy and myopathy. His endurance is also severely compromised. He suffers from a drop foot and his skin integrity is compromised and scarred on his face, head and hands. Becker does not look anything like he did before the explosion. He is also at risk for depression and his affect is blunted. The doctors caring for him are concerned about the need for future psychological or psychiatric support. Becker s wife joined in the action asserting loss of consortium. Result The jury rendered a plaintiff s verdict, but also found 1 percent comparative negligence as to Jentz and 5 percent comparative negligence as to Becker. The total damage award, was $181,139,999,33. The Becker reached a $900,000 settlement with A&J prior to trial. Harassment, stress led to colon necrosis, principal claimed Case Type: Wrongful Termination Employment Sexual Harassment Employment Workplace Harassment Intentional Torts Intentional Infliction Of Emotional Distress Business Law Defamation Business Law Intentional Interference With a Contract School Government Municipalities Government State And Local Government Case: Murphy v. City of Aventura, Miami-Dade Co., Fla., Cir. Ct., 11th, CA (24) 11/2/2012 Plaintiffs Attorney: Richard J. Burton, The Burton Firm, Miami; Benedict P. Kuehne, Law Office of Benedict P. Kuehne, P.A., Miami Defense Attorney: Michael T. Burke, Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, Fort Lauderdale, Fla.; John H. Richards, Boyd Richards Parker Colonnelli, Fort Lauderdale, Fla. Jury verdict: $155,737,000 Facts & Allegations Between April 1, 2003, and early December 2006, plaintiff Katherine Murphy, in her early 50s, was principal of the Aventura City of Excellence School. Murphy was the inaugural principal of the elementary/middle school (known as ACES), a charter school for the city that was managed by Charter Schools USA, the education company with which Murphy had been employed in an executive-level position for roughly three years before becoming principal. ACES teachers and administrative staff were Charter Schools USA employees, but Murphy was a city employee while she was principal, and would regularly interact with City Manager Eric Soroka regarding school business, she claimed. According to Murphy, Soroka was intent on wielding control over the school s operations. She claimed that during her tenure as principal, Soroka engaged in an escalating pattern of humiliation and intimidation, which included berating Murphy, often in vulgar terms, for perceived contacts between Murphy and various members of the city s government. The contentious situation culminated with Murphy s abrupt termination in the middle of the school year, she claimed. Within several years of her firing, Murphy developed an intestinal blockage that was blamed on stress stemming from the loss of her job and resulting professional difficulties. In late 2010, an infection secondary to her intestinal condition caused a three-month coma. Murphy filed suit in federal court against the city; the school; Charter Schools USA and related entities; Soroka and his city-employee wife; and Nicole Munroe, an ACES administrator believed to have provided Soroka with information about Murphy (that Murphy claimed was false) that was cited as justification for Murphy s dismissal. Murphy s complaint alleged sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1991, and also included various statelaw claims. In May 2009, Judge Jose E. Martinez of the U.S. District Court for the Southern District of Florida granted a defense motion for summary judgment as to Murphy s federal-law claims, and a panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed in June Murphy subsequently re-filed her state-law claims in state court in Miami-Dade County. This complaint included causes of action for defamation, intentional interference with business relations, and conspiracy as to Soroka and Munroe; for intentional infliction of emotional distress as to Soroka individually; and for breach of contract as to Charter Schools USA. 4

5 Murphy contended that, almost immediately after becoming principal of ACES, it became apparent to her that Soroka planned to micromanage the operations of Aventura s new educational institution. Aventura is served by Miami-Dade s school system, and ACES was, at the time of its founding, the only public school within city limits. While non-residents were eligible to apply to ACES, residency in Aventura was a factor that would weigh in favor of an applicant s being granted admission. According to Murphy, Soroka seemed eager to take credit for the school s growing list of achievements. Murphy became a city employee upon being named principal of ACES; she also remained a paid consultant to Charter Schools USA, thus allowing her to maintain her prior income level. Murphy claimed that, as a city employee, she could not avoid interacting with Soroka, but felt confident that her extensive experience in school administration would allow her to successfully negotiate any powerstruggle between the two. Murphy claimed that during her first year as ACES principal, Soroka heard a rumor that Murphy had been dining at an Aventura restaurant with several city commissioners, and angrily instructed Murphy that she was never to speak with any city commissioners without his having consented and/ or being present. Soroka repeatedly used curse words when addressing her about school-related matters, Murphy contended, and also began to make comments about her personal life, sometimes employing vulgar and seemingly misogynistic terms when doing so. For example, according to Murphy, Soroka had on one occasion concluded that Murphy had dined with a recently divorced female city commissioner; Soroka later called Murphy and allegedly told Murphy that the two women had looked like prostitutes during their evening out. Meanwhile, strong ratings and rankings for ACES meant that more and more parents from in and around Aventura were seeking to enroll their children. At first, the school relied on a lottery system, but ultimately began to maintain a waitlist. According to Murphy, Soroka wanted to have as many Aventura residents attend ACES as possible, and had members of the city s staff including his wife, Teresa, the city clerk obtain supposedly confidential school records regarding certain student applicants, so that members of Aventura s police department could investigate whether their parents were bona fide Aventura residents. Murphy claimed that she resisted Soroka s efforts to improperly access confidential records and coordinate background checks on children and their families. In mid-october 2006, an opening became available in one of ACES fifth-grade classes. One of the applicants for the spot was an Aventura boy who had previously attended ACES and had recently returned to Florida after temporarily relocating to New Jersey with his family. According to Murphy, Munroe, the registrar for ACES, enrolled the boy pursuant to the responsibilities of Munroe s position. However, Murphy claimed, Munroe (a Charter Schools USA employee whose children were enrolled at ACES) was compelled by Soroka to provide a statement to the effect that Murphy had taken money from the boy s parents and then instructed Munroe to move the boy ahead on the waitlist. On Dec. 1, 2006, Murphy claimed, Soroka summarily terminated her. That morning, several Aventura police officers allegedly came to Murphy s residence at a gated community in Palm Beach County and presented her with documents concerning her resignation. Murphy claimed that she was told to complete the documents and send them to Soroka, and not to return to Aventura or to ACES. That afternoon, Aventura police again visited Murphy s home regarding the conclusion of her employment at ACES, Murphy claimed. At roughly the same time as her conflict with Soroka came to a head, according to Murphy, her consulting contract with Charter Schools USA was also terminated. In support of Murphy s claim of defamation, multiple ACES parents testified that Soroka had related that Murphy was fired for lying about the admission of the fifth-grader, for taking bribe money from parents, and for misusing school money for her personal benefit. Soroka apparently had made similar allegations when interviewed by members of Florida s unemployment compensation program after Murphy sought benefits. Also, Munroe made statements about Murphy s allegedly improper handling of the fifth grader s admission during an interview with state unemployment benefits officers, Murphy claimed. (At trial, counsel for Murphy called attention to the fact that Munroe s children attend ACES, and that their continued enrollment at the school is effectively dependent on Munroe s remaining employed there.) With regard to the harassment allegations against Soroka, counsel for Murphy called a former Charter Schools USA administrator who testified that Soroka had, during an early meeting between Aventura officials and the company, repeatedly used curse words and displayed an angry and demeaning attitude during what was supposed to be a business meeting. Witnesses involved in operations at ACES stated that Soroka had often used inappropriate language in addressing Murphy during her tenure as principal, and that Soroka s barrages had sometimes left Murphy reduced to tears. Counsel for Murphy argued that Soroka s directing uniformed, on-duty Aventura police officers to travel outside of their jurisdiction to confront Murphy about the conclusion of her employment at ACES constituted further evidence of his improper desire to inflict emotional distress. The officers had stated that they were invited into Murphy s gated community by an on-duty security guard; Murphy s attorneys presented evidence that Murphy s gated community had never employed a security guard, and that access to the property was controlled by a keypad on which residents could type in a passcode. Defense counsel for the city argued that Soroka had never used vulgar language in his dealings with Murphy, and that Murphy had been properly terminated for violating numerous rules regarding management of the school. Defense counsel for Charter Schools USA contended that Murphy s consulting contract had been terminated in the summer of 2006 as part of a broader realigning of paid consultancies prior to the school year, and that this decision had not been prompted by, or related to, the souring relationship between Murphy and Soroka. Counsel further argued that Munroe had been telling the truth about Murphy s allegedly improper handling of the fifth-grader s October 2006 admission, and that Munroe had taken the proper course of action after learning of Murphy s conduct. Injuries/Damages colon; colostomy; depression; emotional distress; gastrointestinal complications; heart; infection; mental/psychological; necrosis; post-traumatic stress disorder; pulmonary/respiratory The stomach condition from which Murphy began to suffer following her termination as ACES principal ultimately was diagnosed as necrosis of the colon. In addition to the late-2010/early-2011 three-month-long coma caused by the secondary infection originating in her colon, Murphy had to have a portion of her colon removed, and now uses a colostomy bag. Treating physicians have informed her that she will have to have her colon repaired again at some time in the future. A non-treating psychologist testified that Soroka s harassment of Murphy caused depression and post-traumatic stress disorder-like symptoms, and that her gastrointestinal problems were caused by her psychological stress. A treating psychiatrist testified that Murphy s physical and mental health likely will continue to deteriorate over the course of her life. Murphy claimed that she has been unable to find work commensurate with her training and experience. A former senior vice president for Charter Schools USA testified about the impact that allegations of dishonesty would have on a person within the relatively small field of educational leadership. He also spoke of the high esteem in which Murphy was held by her peers prior to assuming leadership of ACES, and of his futile attempts to assist her in gaining meaningful employment as an educator following her dismissal by Aventura in late An expert economist estimated Murphy s loss of income and benefits as a result of her termination at roughly $3.6 million. With respect to non-economic damages, counsel for Murphy asked the jurors to consider the fact that Murphy now faces a life devoid of good health and of the work to which she had been dedicated. Counsel asked that the jurors award Murphy compensatory damages of at least $50 million, and also requested that punitive damages be awarded. Defense counsel for Charter Schools USA called a psychiatry expert, who reasoned that a mental-health test of Murphy revealed no adverse psychological symptoms, and that neither 5

6 Murphy s termination nor her allegedly contentious relationship with Soroka could be said to have caused Murphy to suffer any psychiatric injury. Post-Trial Defense counsel maintained that state law permits only a single recovery as to lostearnings and medical-costs damages. As a result, the actual value of the award was not in excess of roughly $45.85 million, counsel argued. The defense moved for directed verdicts at the close of the plaintiff s case-in-chief. Judge Rosa Rodriguez reserved decision on those motions. Less than a week after the verdict, Rodriguez granted a directed verdict in favor of the defense as to all causes of action. Among Rodriguez s findings were that the statements at issue by Soroka had not been defamatory as a matter of law, that Soroka s statements had been made in the course and scope of his employment; and that the evidence did not support a conclusion that Soroka had intentionally inflicted emotional distress upon Murphy. Plaintiff s counsel has filed a notice of appeal, and plans to stress on appeal that the grounds on which the trial court s directed verdict was based had already been the subject of substantial pre-trial motion practice. Transcription error led to woman s death, family alleged Case Type: Negligent Treatment Medical Malpractice Failure to Communicate Medical Malpractice Hospital Medical Malpractice Nurse Wrongful Death Case: Estate of Juno v. Amare, Baldwin Co., Ala., Cir. Ct., CV , 12/13/2012 Plaintiffs Attorney: Toby D. Brown and George W. Skip Finkbohner III, Cunningham Bounds, Mobile, Ala. Defense Attorney: Rodney R. Cate, Hand Arendall, Mobile, Ala. Jury verdict: $140,000,000 Facts & Allegations From March 4 to 18, 2008, plaintiff s decedent Sharron Juno, 59, treated at Thomas Hospital in Fairhope for kidneyrelated treatment. She had been on dialysis and her access port had become clogged. During her course of treatment, she suffered a mild stroke, which extended her stay at the hospital. Prior to her discharge, Dr. Douglas Amare, Juno s treating nephrologist, completed and signed a medication reconciliation report that included Levemir insulin with a dosage of eight units to be administered at night. He left the report with the hospital for inclusion in its medical records. After being neurologically cleared, Juno was given the option of going home or being transferred to a rehabilitation facility, and she chose the former. In the middle of the night, she collapsed from weakness. On March 19, she was taken by her son to Mercy Medical, a skilled nursing facility in Daphne. Juno s son alleged that unbeknownst to Amare, the discharge summary that he dictated was outsourced by Thomas Hospital and ultimately transcribed in Mumbai, India and New Delhi, India. The summary was transcribed by three companies: Precyse Solutions LLC, which subcontracted with Medusind Solutions Inc., which sub-subcontracted with Samtech Datasys Inc. Juno s son alleged that the three companies incorrectly transcribed Amare s discharge summary dictation by transcribing and reporting Juno s bedtime dose of Levemir insulin as 80 units, rather than eight units 10 times the prescribed dose. The transcription was then sent back to Thomas Hospital where it was printed and placed in the chart; Amare had 30 days to review and sign it. According to Juno s son, shortly before Juno presented to Mercy Medical, a nurse at Thomas Hospital, who allegedly never spoke or consulted with Amare, took the transcribed discharge summary from India and conveyed the incorrect information to Dr. Alfred Chance Jr., an internist, and nurse Debbie Davis of Mercy Medical. The Thomas Hospital nurse wrote on Amare s physician order by signing her signature above Amare s signature and writing verbal order. By doing this, it implied that Amare signed off on the physician order and verbally told the nurse that she could send the information to Mercy Medical, when in fact Amare did none of this, claimed Juno s son. As a result, Juno s admission medications were recorded by Davis and Chance Levemir insulin dose of 80 units per the inaccurate and false information communicated to them by Thomas Hospital. On the evening of March 19, Juno was administered 80 units of Levemir insulin at Mercy Medical. At 10:20 p.m., Juno s blood sugar was reported as high, and Davis was notified and she ordered 10 units of NovoLog insulin. On March 20, at approximately 6:20 a.m., Juno was found to be suffering from labored breathing with gurgling sounds. Juno was unable to be awoken, and it was noted that her blood-glucose level was critically low at one. Upon the arrival of paramedics, Juno was in full cardiopulomonary arrest and was resuscitated. She was then transferred to Thomas Hospital, where she never regained consciousness, and died on March 27. Asserting claims of wrongful death and medical malpractice, Juno s son sued Amare, his practice (Nephrology Associates of Mobile P.A.), Thomas Hospital, Chance and his practice (Baldwin Internal Medicine Associates LLC), Davis, Mercy Medical, Precyse Solutions LLC, Medusind Solutions Inc. and Samtech Datasys Inc. (The estate also sued Tata AIG General Insurance Co. Ltd., believing the entity provided insurance coverage; however, AIG was not part of the trial. Chance and his practice were dismissed prior to trial. Samtech Datasys Inc. was not represented.) Plaintiff s counsel for the estate argued that Thomas Hospital violated its own procedures and multiple national patient safety standards by using the unreviewed, unsigned discharge summary to write admission and medication orders for Juno s admission to a local rehabilitation facility. The estate s retained nursing expert testified that the Thomas Hospital nurse breached the standard of care and violated hospital policies and procedures by signing her name on Amare s physician order without ever consulting with Amare. According to the estate, beginning in 2007, Thomas Hospital authorized its U.S.-based outsource transcription vendor, Precyse Solutions LLC, to use overseas transcription in India to save two cents per line. Through a series of subcontracts, the actual transcription services were moved to India and performed by Medusind Solutions Inc. in Mumbai, and Sam Tech Datasys in New Delhi. According to plaintiff s counsel, testimony at trial revealed that U.S.-based employees of Precyse were highly critical of the poor accuracy of the transcription work performed overseas by Medusind and Samtech. Instead of instituting better qualitycontrol procedures, these employees were replaced with overseas reviewers. Consequently, no one in the United States reviewed the transcripts for critical errors before they were provided to Thomas Hospital, plaintiff s counsel argued. Therefore, Thomas Hospital deviated from the standard of care in its failure to ensure that quality control and due diligence were implemented by these outsourced companies, concluded the plaintiff s retained expert in medical transcriptions. Plaintiff s counsel played the deposition testimony of Thomas Hospital s retained expert in medical transcriptions. The expert cited a medical publication from 2003 that detailed how the standard of care requires hospitals to thoroughly vet an outsourcing company before soliciting its services, according to the plaintiff s counsel. The estate argued that Thomas Hospital failed to do so in this regard. The plaintiff s retained nephrology expert opined that if Amare dictated 80 units of Levemir, instead of eight units, as well as allegedly providing medical orders to a social worker on Juno s behalf, then he deviated from the standard of care. Plaintiff s counsel contended that if Davis had reason to question the 80 units of Levemir on the discharge summary, and failed to do so, then she breached the standard of care. Plaintiff s counsel asserted that if the Mercy Medical nurse who administered Juno the 80 units of insulin had any question about the dosage and failed to act, then she deviated from the standard of care. The plaintiff s retained expert in pharmacology opined that Juno died as a result of an overdose of Levemir insulin. Thomas Hospital contended that this was a unique situation because even though Juno had treated at the hospital the day before, her admission to Mercy Medical was not a direct transfer from Thomas Hospital. Therefore, the hospital provided Mercy Medical with the necessary documents to the best of its ability, and it was the negligence committed by Precyse Solutions, Medusind Solutions Inc. and Samtech Datasys Inc. that resulted in Juno s death. The hospital directed further liability to Mercy Medical and Davis, whom the hospital claimed received medical documents days prior to her admission at Mercy Medical which noted eight units of Levemir insulin. The hospital maintained that Davis should have observed the discrepancy between the eight units, cited on the 6

7 documents received prior to March 19, and the 80 units of insulin, noted on the discharge summary sent to her on March 19. Precyse Solutions cited the testimony of the plaintiff s retained nephrology expert, Amare and Davis to argue that it was not foreseeable that the unsigned, unreviewed discharge summary draft would be relied upon for the administration of medications. For it was not the discharge summary, but Thomas Hospital s misuse of the draft, that misled Mercy Medical and caused the harm, asserted Precyse. Precyse argued that the quality of work produced by Indian-based transcriptionists (based on error rates) was slightly higher than the U.S.- based transcriptionists, contrary to the testimony of disgruntled former employees. Further, it was undisputed that 100-percent accuracy is impossible, and that the dictating physician knows best what he dictated; therefore, it is required that the physician review and approve the draft before it can be relied upon. Medusind Solutions Inc. asserted that it complied with U.S. standards in transcribing the discharge summary provided by Thomas Hospital. Medusind s retained expert in medical transcriptions opined that Medusind adhered to the standards of practice, and that it was Thomas Hospital and Amare s responsibility to verify the accuracy of the documents, which they failed to do. Counsel for Amare asserted that he correctly dictated the eight units of Levemir, which it supported by playing Amare s audio dictation of him saying eight units. Therefore, his counsel maintained, that it was the outsourced Indian companies that incorrectly transcribed Amare s audio dictation. Moreover, Amare had 30 days to review and sign the discharge summary but was unable to do so, thereby preventing him the opportunity to observe the transcription error. Amare was further denied the opportunity to authorize the discharge summary, and the Thomas Hospital nurse breached the standard of care by signing her name and writing verbal order on the document without Amare ever giving her a verbal order. The physician denied ever giving medical orders to the social worker because a social worker is not allowed to take such orders. (Amare did not call his retained expert in nephrology.) Counsels for Davis and Mercy Medical maintained that the summary discharge they received from Thomas Hospital was a bonafide order with all the necessary elements required by a discharge summary. Davis and Mercy Medical argued that it could not have known that the Thomas Hospital nurse negligently signed the document without Amare s approval before sending it to Mercy Medical. Moreover, a dosage of 80 units of Levemir insulin is not an uncommon dose given to patients, according to Davis and Mercy Medical. (Mercy Medical did not call its nursing expert in case management.) At the close of all evidence, the court granted motions to dismiss by Mercy Medical, Davis, Amare, and his practice; the motions were unopposed by plaintiff s counsel. Injuries/Damages cardiopulmonary/ respiratory arrest; coma; death; unconsciousness Pursuant to Alabama law, Bradley Juno only sought to recover an unspecified amount in punitive damages. Result The jury found for the Juno family, Thomas Hospital, Precyse Solutions LLC, Medusind Solutions Inc., and Samtech Datasys Inc. The jury found against Precyse International LLC, Precyse Solutions Inc., and Sam Tech Datasys Pvt. Ltv. Bradley Juno was awarded damages in an amount of $140 million. Post-Trial The estate settled confidentially with Thomas Hospital, the Precyse entities and Medusind Solutions Inc. Ambulance transporting patient crashed into truck Case Type: Ambulance/Emergency Medical Services Motor Vehicle Rear-ender Case: Lacey v. Averette, 18th Jud. Dist. Ct., La., 70,538, 8/1/2012 Plaintiffs Attorney: Kurt B. Arnold, Arnold & Itkin, Houston; Tony Clayton, Clayton & Fruge, Port Allen, La. Defense Attorney: Robert E. Kerrigan Jr., Deutsch, Kerrigan & Stiles, New Orleans; David P. Salley, Salley, Hite, Mercer & Resor, New Orleans Jury verdict: $116,939,241 Facts & Allegations On Dec. 27, 2010, at 6:30 a.m., plaintiff Whitely Lacey, 21, a nursinghome employee, was seven months pregnant and experiencing stomach pains. She contacted Acadian Ambulance to transport her to the hospital. Lacey alleged that while en route to the hospital on north Highway 1, just outside of Brusly, ambulance driver Michael Averette, who was driving at a rate of speed of 60 mph (the posted speed limit was 55 mph), dropped his magnetic key from his pocket. While reaching down to grab it, he allegedly took his eyes off the road, and in doing so, the ambulance slammed into the rear of a sugar cane truck driven by Daniel Colchado, who had just turned left onto the highway. Lacey suffered spinal cord and brain injuries. Lacey sued Averette, Acadian Ambulance Service and Colchado. Lacey also sued Dale Purpera Farms, who employed Colchado, and DAP Trucking L.L.C., a truck company created by Purpera. Counsel for Lacey argued that Averette should never have been allowed to operate an ambulance. Not only did he have a history of causing serious accidents, he was proven to have poor vision and had been cited for bad driving in 10 of the previous 45 quarters, maintained Lacey. Lacey s retained expert in accident reconstruction opined that Averette was at fault. Acadian s retained expert in accident reconstruction maintained that Colchado was traveling too slow, as he was only driving at a rate of speed no faster than 28 mph, and that his failure to travel at a higher rate of speed contributed to the accident. Counsel for Colchado and Purpera echoed Lacey s theory of liability against Averette and Acadian. At the close of evidence, the judge granted a directed verdict in favor of Colchado, Purpera and DAP Trucking. Averette and Acadian Ambulance Service were the only remaining parties on the verdict slip. Injuries/Damages brain damage; cervical disc injury; cognition, impairment; coma; emotional distress; fracture, cervical; fracture, neck; neck; paralysis; physical therapy; scar and/ or disfigurement; speech/language, impairment of; triplegia; unconsciousness On impact Lacey came under the straps of the gurney and catapulted into a wall of the ambulance. Unconscious, Lacey was taken by another ambulance to Our Lady of Lourdes Regional Medical Center in Lafayette, where her baby was born prematurely, via Cesarean section. Lacey suffered bleeding on the brain and a fracture of the C2-3 disc, which rendered her triplegiac, as she is able to move her left arm. Lacey remained in a coma for the next few months. Upon awakening, Lacey underwent rehabilitation that involved speech and cognitive therapy. With diminished motor skills, Lacey is able to talk but with difficulty, according to her attorney. She sought to recover over $1.4 million in past medical bills. Lacey s treating physiatrist and neurologist both testified that her condition could improve given the proper lifetime of care, which consisted of continued cognitive and physical therapies. She sought to recover a life-care plan of over $30 million, with a life expectancy of 50 to 57 more years. Lacey s two children (she already had a child at the time of her pregnancy) live with Lacey s mother. Lacey, who will remain wheelchair-bound for the rest of her life, sought to recover unspecified amounts in non-economic damages for past and future pain and suffering. She further sought to recover $23,715 in past lost wages and $415,526 in future lost earnings. According to Acadian s retained experts in physical medicine and neuropsychology, Lacey only has a window of four to five more years in which her condition will improve from therapy; after that, her condition will decline and diminish, and such rehabilitation thereafter will have little to no effect. Given the diminished returns of future treatment, the defense s retained life-care planning expert said that instead of a long-term, inpatient brainrehabilitation program that Lacey s counsel was suggesting, it would be more appropriate to place Lacey in a nursing facility. Therefore, her future lifecare plan would be in the range of $12 million to $15 million. In addition, Lacey had only 40 more years to live, opined the defense s retained expert in life expectancy. Result The jury found that Acadian Ambulance Service Inc., Acadian Companies and Averette were at fault for the accident in question and a cause in fact of Lacey s damages. The jury awarded the plaintiffs an amount of $116,939,241. Post-Trial Acadian and Averette motioned for judgment notwithstanding the verdict, and the court reduced the verdict amount of $116,939,241 7

8 to $104,459,543. Indian Harbor s layer of coverage is $52,500,000 to $77,500,000. Steadfast s layer of coverage is $77,500,000 to $102,500,000. Woman set on fire by downed power line as children watched Case Type: Negligent Maintenance Worker/Workplace Negligence Negligent Assembly or Installation Worker/Workplace Negligence Negligent Training Wrongful Death Emotional Distress Case: Goretzka v. Allegheny Energy Inc., GD Allegheny Co., Pa., Ct. C.P., 12/6/2012 Plaintiffs Attorney: Shanin Specter, Kline & Specter, Philadelphia Defense Attorney: Avrum Levicoff and Elizabeth E. Deemer Levicoff, Silko & Deemer, Pittsburgh Jury verdict: $109,000,000 Facts & Allegations On June 2, 2009, plaintiff s decedent Carrie Goretzka, 39, was in her Irwin home with her family when they lost power. The weather outside was clear skies. She, along with her mother-in-law JoAnn Goretzka, looked out of the window to see pine trees in her back yard on fire. Carrie could see that the trees were on fire due to a fallen power line. The family claimed that this was not the first time this power line fell. They say it fell in 2003 and 2004, causing fire. Carrie dialed 911 on the home phone, but due to the lost power it didn t work. Carrie ran into the garage to get her cell phone, and then ran outside to her side yard to get good reception. A 7,200 volt power line fell on her, and she caught on fire. JoAnn ran out to the yard and found Carrie entangled in the line, but JoAnn was shocked and thrown back several feet, injuring her hands. Carrie s two daughters, Chloe and Carlie, 4 and 2, respectively, stood feet from the downed power line watching their mother being shocked and on fire, helpless to do anything to stop it. Carrie was shocked for approximately 20 minutes by the live wire, until utility workers were able to shut off power to the wire. She was taken to the hospital, where she died three days later. Michael Goretzka, Carrie s husband, individually and on behalf of her estate and their daughters, sued Allegheny Power, Allegheny Energy, West Penn Power Company and First Energy Corp. JoAnn was also a plaintiff. The complaint alleged that the defendants were negligent and reckless in the installation, maintenance, and inspection of the line, and its connections and splices. The defendants sued Hubbell Power Systems, Inc., Hubbell Inc. and Fargo Manufacturing Inc., the companies that manufactured the cable splices used in the power line, alleging that they were solely liable. The additional defendants were dismissed with prejudice by the judge. All of the direct defendants, except for West Penn Power Co., were dismissed by stipulation prior to the trial. Michael testified that he had contacted West Penn twice previously about power lines falling in his back yard, catching his lawn and trees on fire. He reportedly told the company that he feared for the safety of his family. Plaintiff s counsel argued that West Penn failed to research and investigate the past problems. The plaintiffs alleged that West Penn failed to properly trained their workers to properly maintain the power lines. According to testimony from former workers, many workers cleaned power lines with a knife or another sharp implement before splicing them, if they cleaned them at all. According to the plaintiff s expert engineer, the correct way to clean the wire was with wire brushes, and there was no evidence that they were used. Failure to clean the power lines made them more likely to rust, and then more likely to overheat and fail. According to the plaintiff s expert, this is why the live wire fell. The plaintiffs professional engineer said that the fusing used on the wire that fell on Goretzka was inappropriate. The subject wire had a 100t fuse, which according to the expert was an inappropriate fuse. The expert opined that a 65t fuse would have been more appropriate. The defense argued that the power lines were properly maintained and their employees were properly trained. The defense s expert metallurgic engineer testified that the power line in question showed signs of being wire-brushed prior to installation, but also said other pieces of the wire were cleaned by other implements. The defense s expert research engineer opined on a study performed in 2006, which reportedly shows no improvement in performance and longevity for wire-brushed power lines, challenging the plaintiff s theory that a failure to properly clean the wire caused it to fail and fall. In closing arguments, the defense maintained that Carrie went near the faulty power lines, putting herself in harm s way and causing her own accident. Injuries/Damages burns; conscious pain and suffering; death; electric shock Once the power was disengaged from the power line, Carrie was taken by ambulance to a helicopter, where she was airlifted to UPMC Hospital in Pittsburgh. Her left forearm was reportedly burned down to the bone, necessitating its amputation. Goretzka died in the hospital three days later. JoAnn sustained burns on her hands. She went by ambulance to UPMC Mercy, and was released that same day. The family sought to recover for Carrie s pain and suffering before her death. They also sought her lost earnings, for which plaintiff s counsel asked for a range of $2.6 million to $4.3 million. Daughters Chloe and Carlie, who watched their mother suffer on the ground, suffered severe emotional trauma and psychological injury. They suffer from sleeplessness, anxiety, depression and other symptoms. No specific amounts were sought for these damages. Result The jury rendered a plaintiff s verdict and awarded $109 million. It is the largest award in the history of Allegheny County. Post-Trial Defense counsel reportedly plans to file a post-trial motion. Ironworker with unlatched harness paralyzed in fall Case Type: OSHA Slips, Trips & Falls Fall from Height Slips, Trips & Falls Trip and Fall Workplace Workplace Safety Case: Bayer v. Garbe Iron Works Inc., Cook Co., Ill., Cir. Ct., 07-L , 11/14/2012 Plaintiffs Attorney: Clifford W. Horwitz and Jay R. Luchsinger, Horwitz Horwitz & Associates, Chicago Defense Attorney: John W. Patton Jr. and Michael Vranicar, Patton & Ryan, Chicago Jury verdict: $80,000,000 Facts & Allegations On June 20, 2007, plaintiff Ronald Bayer, 36, an ironworker, was working at a warehouse in DeKalb. His employer, Area Erectors, Inc., had been hired by general contractor Panduit Corp. to erect the structural steel as part of an addition to the warehouse. Bayer was on top of a beam when he tripped on a stud. Bayer, who wasn t using his safety harness, fell headfirst approximately 15 feet into a concrete wall below. Bayer s neck snapped upon impact, leaving him paralyzed from the chest down. Bayer sued Panduit Corp.; Tylk Gustafson Reckers, the architectural engineer; and Garbe Iron Works, Inc., the fabricator that installed the studs on the beam. The defendants then sued Area Erectors, Bayer s employer, as a third-party defendant. Bayer alleged that the defendants failed to maintain a safe environment for Bayer to do his job and negligently caused the accident to occur. Area Erectors settled prior to trial for $2 million. Garbe Iron Works settled after the trial had commenced for a confidential amount. Tylk was dismissed by summary judgment on June 16, Plaintiff s counsel alleged that the presence of studs in the beams was negligent, as they constituted a tripping hazard and were in violation of Occupational Safety and Health Administration standards. Plaintiff s counsel also maintained that the defendant failed to provide stanchions and cables, which were required for the job site according to the defendant s site-specific safety plan for the project. According to plaintiff s counsel, the ironworker s tasks are not usually performed in a basket, which the defendant claimed to have provided for the site. The warnings given by OSHA and the manufacturers of the baskets regarding the baskets and lanyards were repeatedly violated by the defendant, exposing the workers to unnecessary safety risks. Furthermore, according to plaintiff s counsel, the failure of the contractor to not provide safety lifelines and stanchions went against the sitespecific safety plan of the project. The defendants claimed to have provided Bayer and the rest of the workers that day a basket to hook their safety harnesses, as opposed to safety cables. The defense contended that Bayer was solely at fault, as he untied himself from the basket and then climbed on the beam, violating the rules that required workers to hook their safety harness to the 8

9 elevated basket, and to be tied off at all times at any height above 6 feet. According to the defense, Bayer had regularly complied with the rules, allegedly over 100 times, but on this occasion decided not to. Bayer s co-workers, including the foreman at the site, testified that Bayer was instructed to work solely from the mainlift, not to get out of the basket to perform his job. Since Bayer chose to get out without a safety harness, the defense alleged, it was his own negligence that caused the fall. Injuries/Damages autonomic dysreflexia; edema; neurogenic bladder; neurogenic bowel; paralysis; traumatic brain injury; ulcer Bayer was taken by ambulance to St. Anthony Hospital, in Chicago. He was ultimately diagnosed with a severed spinal cord as well as a traumatic brain injury. Other conditions doctor s later included are neurogenic bladder and bowel, skin ulcers, edema, autonomic dysreflexia, traumatic hyspadius and chronic pain as a result of the paralysis and brain trauma Bayer underwent a fusion procedure from the base of his skull to C1, and then from C3 to T1. As a result of his traumatic injuries, Bayer required 24- hour care, needing two around-the-clock caregivers to monitor him and reposition his body to prevent bedsores. Plaintiff s counsel asked the jury for a total recovery of $80 million to $115 million, which included damages such as lost income, pain and suffering, loss of normal life and medical costs, although workers compensation did cover $5 million of Bayer s medical expenses. The defense contended that Bayer was not brain-damaged, and challenged the extent of the injuries the 24-hour nursing care Bayer allegedly would require. Defense counsel maintained that plaintiff s counsel did not make any official demand at trial. Result The jury found Panduit 80 percent liable and Bayer 20 percent liable. The jury awarded $80 million, which was reduced to $64 million. Post-Trial Defense counsel for Panduit reportedly plans to appeal the verdict. Man claimed metal chain that injured eye defectively made Case Type: Manufacturing Defect Strict Liability Case: Conley v. Harbor Freight Tools USA Inc., Martin Co., Fla., Cir. Ct., 2010-ca-1510, 2/15/2012 Plaintiffs Attorney: Gerald A. Lefebvre, The Law Office of Gerald Lefebvre, Okeechobee, Fla. Defense Attorney: Not represented Jury verdict: $44,714,000 Facts & Allegations On May 25, 2010, plaintiff Dan Conley, 46, a handyman and smallbusiness owner, was removing a tree stump when one end of a link chain broke, striking him in the face. One end of a 25-foot-long chain was attached to the stump of the tree and the other end was attached to a Ford Econovan when the chain broke, causing one end of the chain to strike just below Conley s right eye. He was approximately 22 feet away from the chain when it broke. Conley claimed he suffered eye injuries and a traumatic brain injury. Conley sued Rudong Chain Works, the manufacturer of the chain; Harbor Freight Tools USA Inc., which sold it; and Central Purchasing, which imported it, under products liability, including manufacturing defect and strict liability theories. Harbor Freight and Central Purchasing reached a confidential settlement with the plaintiff one month before trial. Rudong, a Chinese manufacturer, did not participate in the trial, thus the case proceeded in default. Plaintiff s counsel contended that the linked, metal chain was designed to withstand at least 7,600 pounds of tensile force but broke when only 2,360 pounds of force was applied to the chain. Counsel contended that during the manufacturing process either not enough force, heat or electricity was applied correctly. The result, argued counsel, was the weld was incomplete, weak and ineffective. Injuries/Damages blindness, one eye; depression; eye, loss of; fracture, facial bone; fracture, orbit; fracture, sinus; loss of consortium; loss of services; loss of society; memory, impairment; traumatic brain injury Conley was airlifted by helicopter from the accident scene to Lawnwood Regional Medical Center in Fort Pierce. In addition to being struck under the eye, he suffered a traumatic brain injury, depression and a fracture to his sinus. Conley had three surgeries on his right eye, and has since been declared legally blind in the eye. Conley now wears a patch over the eye. Conley also suffered facial and orbital fractures. He underwent reconstructive facial surgery in which the facial and orbital bones were broken again and then reset. About six months after the accident and after those around him noticed personality changes, Conley underwent an MRI. The MRI revealed dried blood on the brain. Conley underwent one week of inpatient therapy. He now has short-term memory problems, increased irritability and depression. Conley has taken to writing down things so he does not forget even daily tasks. He is taking prescription antidepressants. Conley took pride in being the breadwinner for the family. He owns a small business and is trying his he best to keep up the business, but he claimed his injuries have made it very difficult. Conley drives only when absolutely necessary. Conley further contended that he can no longer partake in his favorite activities, including net fishing. Conley contended he will need continued cognitive therapy and prescription medication. He sought around $1 million in past and future medical costs and lost wages. Conley s wife, Michele, sought damages for loss of services and society from her husband based upon his claimed injuries. Result The jury awarded the plaintiffs $44,714,000 in damages. Dan Conley will receive $39,714,000 in damages and Michele Conley will receive $5 million. Post-Trial China does not enforce U.S. court judgments. Plaintiffs counsel said he will seek to satisfy the judgment from Rudong Chain Works worldwide assets. The company claims annual exports to the United States are between $50 million and $100 million. It also claims it exports to 60 countries throughout the world. Plaintiff allegedly fell off hotel balcony with short railing Case Type: Negligent Repair and/or Maintenance Slips, Trips & Falls Fall from Height Premises Liability Hotel or Motel Case: Von Normann v. Newport Channel Inn Inc., Orange Co., Calif., Super. Ct., , 7/12/2012 Plaintiffs Attorney: Nicholas C. Rowley, Carpenter, Zuckerman & Rowley, Beverly Hills, Calif.; Alejandro D. Blanco, The Blanco Law Firm, Glendale, Calif. Defense Attorney: Timothy J. Stafford, Stafford & Associates, Irvine, Calif. Jury verdict: $38,628,127 Facts & Allegations On Nov. 16, 2008, plaintiff James Von Normann, 25, who worked in sales, was found in the parking lot of the Newport Channel Inn in Newport Beach having suffered a head injury. A hospital blood draw determined his blood alcohol concentration to be 0.267, more than three times the legal limit to drive. Three weeks later, when Von Normann emerged from a coma, he had no memory of how he came to be on the ground and there were no witnesses. Von Normann sued Newport Channel Inn, alleging that the hotel was negligent in the maintenance of its property. Plaintiff s counsel claimed that Von Normann fell over a second floor balcony railing, which was illegally low by 8 inches. Lacking any witness testimony, plaintiff s counsel relied on circumstantial evidence to prove that Von Normann fell from the balcony, including biomechanical evidence that Von Normann s shin abrasions and ankle bruising could only have occurred by the scraping the skin over a railing. The plaintiff also claimed that the hotel had suppressed the one eyewitness to the fall, by not preserving surveillance video of the scene. The defense focused on Von Normann s admitted intoxication. Defense counsel argued that Von Normann did not fall from the second-floor, and therefore any code violation did not cause his injuries. In support of this point, the defense argued that the only blood found at the scene was on the first floor walkway and many feet away from a point on the balcony where Von Normann allegedly fell. Defense counsel further stressed that Von Normann had checked-out of the hotel the morning before the fall. The parties stipulated to bifurcate the case. Injuries/Damages abrasions; fracture, skull; leg, bruise; traumatic brain injury Paramedics found Von Normann unresponsive with a glasgow coma scale of 9. He was taken to 9

10 the Western Medical Center in Santa Ana for his injuries. He sustained skull fractures and a resultant severe traumatic brain injury. Plaintiff s counsel presented evidence that the nature of Von Normann s skull fractures required a fall from significant height. Von Normann s traumatic brain injury was evidenced from various MRIs. His counsel noted that Von Normann had suffered a mild post-concussion traumatic brain injury only nine months prior during a skateboard fall. Radiological studies from that injury showed that he had suffered some brain damage. Experts testified that, as a result of severe traumatic brain injury, Von Normann s brain is shrinking and he is suffering from dementia. Plaintiff s experts David Patterson, Jeffrey Schaeffer, Les Zackeler and Ron Fisk testified that Von Normann will require 24-hour supervision for the remainder of his life. Approximately nine weeks before trial, Von Normann entered a residential rehabilitation program to provide alcoholism assistance to those with brain injuries. Von Normann claimed that he will never work again. He did not testify during the damages phase of the trial. The plaintiff asked the jury to find the defendants 85 percent at fault. The defense argued that Von Normann s head injury was caused instead by a ground level fall due to his own intoxication. The defense presented the testimony of their expert in kinesiology, who testified that research he reviewed showed that a fall from the second floor always results in fracturing more than just the skull, while Von Normann only fractured his skull. The defense argued that Von Normann was capable of performing activities of daily living, noting that he still showered, shaved and, until shortly before trial, drove himself to school, where he was studying to become a personal trainer. The defense focused on Von Normann s job history post-accident, in which he was employed by several different companies. Further, the defense argued that Von Normann s injuries preceded this accident because of the skateboard fall nine months earlier. Defense counsel asserted that Von Normann s brain injuries were from that fall. Finally, the defense focused on a treating neurologist s report which stated that Von Normann only suffered mild cognitive deficits. The defense asked the jury to find that their negligence was not a cause of the plaintiff s injuries. Plaintiff s counsel noted that on crossexamination the defense s kinesiology expert conceded that his testimony was inaccurate and that some of the research he used showed persons falling from the second floor and only suffering skull fractures. Result The jury found Newport Channel Inn 85 percent liable and apportioned 15 percent fault to Von Normann in the first phase of the trial on July 12, In the second phase of the trial on July 18 the jury awarded Von Normann $38,628, in total damages. After comparative reduction, Von Normann s award was reduced to $32,833, Truck driver improperly attempted lane change: plaintiffs Case Type: Lane Change Motor Vehicle Tractor-Trailer Motor Vehicle Multiple Vehicle Motor Vehicle Multiple Impact Motor Vehicle Passenger Case: Sheth v. Schneider National Carriers Inc., Riverside Co., Calif., Super. Ct., RIC , 6/29/2012 Plaintiffs Attorney: Brian J. Panish and Thomas A. Schultz, Panish Shea & Boyle, Los Angeles Defense Attorney: Barry Clifford Snyder, Snyder Law, Santa Barbara, Calif. Jury verdict: $37,845,882 Facts & Allegations On March 26, 2010, plaintiff Jaishree Sheth, 58, a financial advisor, and her husband, plaintiff Prakash Sheth, 64, a retired chemist, both Indian citizens, were passengers in a Toyota Camry operated by Gamanial Shah, who was driving in the far right lane, the slow lane, of westbound Interstate 10, a three-lane freeway also known as Christopher Columbus Transcontinental Highway. When they were west of Beaumont, a tractor-trailer owned by Schneider National Carriers Inc. and operated by its employee, Jimmy Morgan, attempted to pass Shah s Camry on the left by pulling out from the right lane and into the middle lane. After passing Shah s vehicle, Morgan attempted to pull back into the right lane. However, a collision occurred, causing the Camry to spin out of control across the freeway and hit the median barrier. It was then struck by another vehicle, which was operated by Betty Jean Onley, who was in the left (fast) lane. The Camry then careened back across all three freeway lanes and over the freeway shoulder, coming to rest on the edge of a man-made wash with a 20-foot drop. Mrs. Sheth, who was seated in the backseat of the Camry behind Shah, was initially paralyzed from the accident. Mr. Sheth sustained contusions and soft-tissue injuries. Mr. and Mrs. Sheth sued Morgan and Schneider National Carriers, as well as Shah and Onley. They alleged that Morgan, Shah and Onley were negligent in the operation of their respective vehicles, and that Schneider National Carriers was vicariously liable for Morgan s actions. Shah subsequently brought a cross-complaint against Morgan and Schneider National Carriers, while Morgan and Schneider National Carriers cross-complained against Shah. In addition, Onley brought a cross-complaint against Morgan, Schneider National Carriers and Shah for her injuries in the accident. However, Onley was later dismissed as a defendant, as it was stipulated that she was not at fault, and she was made a plaintiff in the case. The Sheths claimed that Morgan was speeding, switched lanes and then improperly attempted to pass them at a high rate of speed in the middle lane, before negligently entering back into the right lane and striking the side of their vehicle. Thus, they claimed that Morgan was at fault for the collision by improperly attempting to pass Shah s Camry and then attempting to pull back into the right lane when it was unsafe to do so. The plaintiffs and Shah s experts testified that Morgan s actions caused a PIT maneuver, or a type of pursuit tactic, to be applied to the Shah vehicle. They explained that this maneuver would cause a pursuing vehicle to force a fleeing vehicle to abruptly turn sideways, causing the driver to lose control and stop. Thus, they testified that Morgan s actions caused the accident by causing Shah to lose control of his vehicle after it abruptly turned sideways. The Sheths counsel also noted that the defense admitted that Morgan was traveling at 60 mph, when the speed for trucks was 55 mph. Shah and Onley claimed that Morgan was tired, forgot that the Camry was next to him and moved into the vehicle. Onley was traveling to the left of the trailer. At deposition, Onley testified that the tractortrailer stayed within its lane and did nothing wrong. However, her testimony was modified at trial to state that the tractor-trailer was going straight enough for [her], and the court did not allow her to testify as to whether she thought Morgan did anything wrong in his driving. Morgan, and his team driver wife, testified only by videotaped deposition because Morgan suffered two heart attacks unrelated to the accident and, as a result, had been in a coma for three weeks. The court did not allow the jury to be not told of his physical problems. Morgan claimed that Shah caused the accident by failing to be aware of his tractor-trailer in the adjacent lane. Morgan alleged he was sleeping until 3.5 hours before the accident, was alert and not tired. He claimed that while traveling in the right lane, he came upon a slower moving Shah vehicle, moved into the middle lane to continue past it and then ultimately moved back into the right lane. However, he claimed that when he was abreast of the Shah vehicle, the Camry spun out of control ahead of his tractor-trailer, spun across the other lanes and impacted the concrete median. Morgan claimed he then slowed and moved to the right some distance down the road, unsure whether he had been involved in the accident or not. He testified that he had no reason to change lanes at that point, as he would have run over the little car. Morgan s counsel contended that Shah, an overly cautious 80-year-old driver, panicked when his passenger yelled at him about the approaching tractor-trailer and moved slightly to the right, glancing off the tractor and then over-steering, causing the Camry to spin out and result in additional impacts. Morgan s counsel noted that Shah testified that he never looked in his rearview mirrors while driving and was unaware of any vehicles behind him. Counsel also noted that Shah testified that he required that his passengers not talk at all while he was driving so that he could pay attention to his driving. Counsel further noted that the skid marks attributed to Shah s Camry, which were 11 feet into the Shah s lane, were universally agreed by all experts to be from the right side Camry 10

11 tires and could have been laid down in the absence of any prior impact. In addition, Morgan s counsel called two independent witnesses, one of who was in front of the accident, and who testified that he looked in his rearview mirror and saw headlights moving right and then left and then into the median divider. Morgan s counsel argued that this description was inconsistent with the plaintiffs and Shah s experts, whose testimony and reconstruction claimed that a PIT maneuver was applied to the Shah vehicle. Morgan s counsel argued that a PIT maneuver would not result in headlight movement to the right, only to the left. As for the other witness, who was trailing the accident, she drew a diagram in which she showed the tractor-trailer fully in its lane and the Camry moving into it. She also testified that the Camry bounced off the center divider and went between her vehicle and the back of the trailer, which was inconsistent with the plaintiffs and Shah s experts, whose reconstruction had the Camry moving in front of the tractor due to locked-wheel braking. The California Highway Patrol could not find any tire marks at the scene that could be related to the tractor-trailer. Injuries/Damages contusion; emotional distress; fracture, C5-6; loss of consortium; respiratory; shoulder; soft tissue At the time of the accident, the Sheth s were visiting the United States from India and were on their way to the Orange County airport for a family vacation to Hawaii. In the crash, Mrs. Sheth suffered spinal cord injuries, including a perched cervical fracture at the C5-6 level. She was subsequently transported by ambulance to Riverside Community Medical Center, where she was determined to be completely paralyzed and experienced respiratory failure. As a result, she requiring two emergency surgeries and remained hospitalized for one month. Mrs. Sheth was then transferred to Loma Linda University Medical Center for rehabilitation for another month. After surgery and rehabilitation, Mrs. Sheth was able to walk again and returned to Mumbai, India, where she continued her treatment. However, she still requires 24-hour attendant care and returned to the United States for the trial. Mr. Sheth sustained contusions and soft-tissue injuries. He admitted he fully recovered in two months time and returned to India with his wife. However, he claimed he suffers emotional distress as a result of witnessing his wife s severe injuries. Mr. Sheth also sought recovery for loss of consortium. Onley claimed soft-tissue and shoulder injuries, leading to a rotator cuff repair. She also claimed some loss of earnings and had to retire early from her job in the courthouse. Defense counsel attempted to present a fiveminute surveillance film of Mrs. Sheth, obtained in December 2011 in Mumbai, India, in which she was shown walking without a cane, climbing stairs and getting into a car without assistance, all which Mrs. Sheth claimed she could not presently do. However, the court rejected the film. At trial, counsel for Schneider National Carriers argued that Mrs. Sheth should have her care in India at the cost in that country, since she is an Indian resident and citizen, and because all of her recommended health care was available in India. However, defense counsel noted that the court allowed the Sheths counsel to present evidence of the cost of medical care in the United States on the basis that Mrs. Sheth should not be limited to available care in her home country of India, but should be allowed to come to the U.S. to optimize her medical care. As such, defense counsel noted that the life care plan Mrs. Sheth presented included the cost of roundtrip business class airfare, a rental car, hotel and meals in the U.S., etc. Additionally, defense counsel noted that the court prevented the them from arguing in closing arguments that the jury should consider that the Sheths were citizens of India, the life style in India, and the cost of living in India when assessing non-economic damages of pain and suffering, inconvenience, etc. Result The jury found that Morgan and Schneider National Carriers were 100 percent liable for the harm to the Sheths and Onley. It also did not assign any liability to Shah. Thus, the jury awarded $37,845,882.26, which included $33,476,824 to Mrs. Sheth, $3,005, to Mr. Sheth $1,363, to Onley. Post-Trial Counsel for Morgan and Schneider National Carriers is planning to move for new trial. Worker struck by falling valve sustained traumatic brain injury Case Type: Falling Object Premises Liability Dangerous Condition Worker/Workplace Negligence Oil Field Worker/Workplace Negligence Negligent Maintenance Worker/Workplace Negligence Negligent Supervision Case: Tanner v. Eagle Oil & Gas Co., Jasper Co., Miss., Cir. Ct., , 8/15/2012 Plaintiffs Attorney: Norman Gene Hortman Jr. and Christopher B. McDaniel, Hortman Harlow Bassi Robinson & McDaniel, Laurel, Miss. Defense Attorney: C. Greg Copeland, Copeland, Cook, Taylor & Bush, Ridgeland, Miss.; Robert A. Miller, Butler, Snow, O Mara, Stevens & Cannada, Ridgeland, Miss. Jury verdict: $36,000,000 Facts & Allegations On Nov. 12, 2010, plaintiff Edward Jack Tanner, 52, a well-servicing worker, was standing near a rig on a saltwater disposal well in Jasper County, which was owned by Eagle Oil & Gas Co., when a valve high up on the rig fell and struck him on the head. Tony Reasoner was the Eagle Oil employee directly in charge of the oilfield where the well was located, and V.A. Sauls Inc. had been hired to repair tubing on the well and employed the rig personnel that were working on the well at the time of the accident. Tanner sustained a fractured skull and a traumatic brain injury. Tanner and his wife, Teresa Diane Tanner, sued Eagle Oil, Reasoner and V.A. Sauls, alleging the parties had created a dangerous condition, and were negligent in the maintenance and operation of the rig. The Tanners contended that a V.A. Sauls crewmember failed to wrench-tighten a valve assembly located on top of a string of tubing suspended above the well. The plaintiffs also contended that the failure to wrench tighten the valve was negligent, and that V.A. Sauls should have secured the valve before the company began repairing the tubing. Tanner further contended that V.A. Sauls had used the wrong type of valve, and therefore, by using the wrong equipment and by failing to properly tighten the valve, the parties had created a dangerous condition. Tanner also contended that V.A. Sauls did not have sufficient personnel for the job, and that at the time of the accident, neither Reasoner, nor any Eagle Oil employee responsible for the oversight and supervision of the operation was present. Tanner also argued that, as the well owner, Eagle Oil had a duty to provide the correct equipment, and to ensure that the correct procedures were being followed on the premises. Tanner further contended that the defendants had committed gross negligence. Tanner s neurosurgeon and biomechanical experts opined that the weight and force of the valve was such that Tanner would have suffered the same or worse injuries had he been wearing a hard hat. Eagle Oil contended that the site had been properly supervised, that it provided the correct equipment and that it was V.A. Sauls responsibility to properly secure the valve. V.A. Sauls contended that it used the equipment provided by Eagle Oil, and that Eagle Oil had not properly maintained the valve. Both defendants contended that Tanner was negligent for failing to protect himself by not wearing a hard hat and standing in a dangerous location at the time of the incident. The defendants also argued that Tanner s employer and another non-party entity on the premises were contractually liable for the incident. defendants expert neurosurgeon and biomechanical experts opined that Tanner would have suffered less serious injuries if he had been wearing a hard hat. The experts further opined that the condition of the condition of the valve was within standard operating procedure. Injuries/Damages brain damage; cognition, impairment; coma; craniotomy; fine motor skills, impairment; fracture, skull; loss of consortium; loss of services; speech/language, impairment of; subdural hematoma; traumatic brain injury; unconsciousness Tanner was stuck by the valve and knocked unconscious. He sustained a subdural hematoma and a skull fracture, with brain matter leaking. He was taken to the hospital by ambulance where he underwent a craniotomy. He remained in a coma for one week and had two additional procedures to address the skull fractures. He remained in the hospital for approximately one month, before he was transferred to a center for patients with 11

12 traumatic brain injuries, where he was residing at the time of trial. Tanner developed cognitive dysfunction, including personality changes, speech problems, and the loss of fine motor skills. He was rendered unable to return to work after the accident. The Tanners experts testified that Tanner would require institutional care for the rest of his life. The plaintiffs claimed Tanner sustained $9,033,000 in economic damages, which consisted of $7.7 million for his future life care plan. The defendants did not offer their own life care plan for Tanner, and did not offer testimony to counter the damages. Result The jury rendered a verdict for the plaintiff, and found Eagle Oil & Gas Company 40 percent liable and V.A. Sauls 60 percent liable. The jury awarded the Tanners $36 million. Post-Trial The defendants intend to appeal the verdict. There is a statutory cap for the noneconomic damages at $1 million, which the plaintiffs counsel challenged. The issue went up on appeal. On Feb. 1, 2013, the Court remitted the award to $9,130,180. Warning signs for construction zone not in place, plaintiff said Case Type: Work Zone Gross Negligence Construction Case: Roberts v. Bick s Construction Inc., Duval Co., Texas, Dist. Ct., DC , 4/18/2012 Plaintiffs Attorney: Michael M. Guerra and Jody R. Mask, Guerra Mask, McAllen, Texas Defense Attorney: Frank Sabo, Willette & Guerra, McAllen, Texas Jury verdict: $33,313,574 Facts & Allegations On June 1, 2011, plaintiff James Roberts, 68, was driving east on State Highway 44 approaching a section being repaved by Fort Worth general contractor Bick s Construction Inc. when a westbound car driven by Joseph Drennan crossed into his lane and struck him. Roberts sustained spinal cord injury. Roberts and his wife, Yolanda Roberts, sued Bick s and Drennan for his negligent operation of a motor vehicle and for gross negligence. Roberts claimed that Drennan lost control and left his lane attempting to avoid a collision with a vehicle that had suddenly come to a stop ahead of him due to traffic buildup in the construction zone. He claimed that the warning signs mandated by Bick s state contract were not in place around the construction zone, and this lack of warning contributed to the collision. Defense counsel argued that the warning signs were in place. Drennan settled prior to trial for $30,000. Injuries/Damages chest flail; contusion, pulmonary; paralysis; paraplegia Roberts sustained a chest flail and pulmonary contusion, and his spinal cord was partially severed at C5-6. While he retains sensation below the waist he does not have and is not expected to regain use of his legs. He was hospitalized for 120 days following the collision, followed by physical rehabilitation. He and his wife sought $40 million for past and future pain and suffering, physical impairment, disfigurement, medical expenses, loss of household services and loss of consortium, and $40 million in exemplary damages. Result The jury found the defendants negligent and grossly negligent, and found Bick s 70 percent liable and Drennan 30 percent liable. The plaintiffs were awarded $33,313, The parties settled after trial for $6 million in accordance with a $4 million-$6 million high-low agreement. Plaintiff: Dangerous condition of intersection not repaired Case Type: Left Turn Motor Vehicle Intersection Transportation Roadways Motor Vehicle Dangerous Condition Motor Vehicle Motorcycle Case: Evans v. State of California, San Bernardino Co., Calif., Super. Ct., CIVVS100249, 7/19/2012 Plaintiffs Attorney: Gregory L. Bentley, Shernoff Bidart Echeverria Bentley, Claremont, Calif.; Robert A. Parris, R. Rex Parris Law Firm, Lancaster, Calif. Defense Attorney: Ralph E. Brown, California, Department of Transportation, Los Angeles; David J. Weiss, Law Offices of David J. Weiss, Los Angeles Jury verdict: $31,580,339 Facts & Allegations On April 29, 2009, plaintiff David Evans, a prosecutor with the Los Angeles County District Attorney s Office, was riding his motorcycle on eastbound State Route 138 in Pinon Hills when he was struck by an oncoming vehicle operated by John Beekley Lyons, who was traveling westbound on Highway 138. While approaching the intersection with Mountain Road, Lyons started to make a left turn onto the cross street when the collision occurred. Evans was thrown approximately 50 feet from his motorcycle and Lyons sport utility vehicle had major damage to the front of it. As a result, Evans suffered catastrophic injuries. Evans, by and through his wife and conservator Meredith Evans, sued the driver, Lyons; the owner of the road, the county of San Bernardino; and the maintainer of the roadway, the state of California Department of Transportation. He alleged that Lyons was negligent in the operation of his vehicle, and that the county and Caltrans were negligent for failing to protect against a dangerous condition at the intersection of SR-138 and Mountain Road. The county of San Bernardino was ultimately dismissed from the case prior to trial, as it was confirmed that the road was controlled/maintained by Caltrans. Mr. Evans claimed Lyons made an illegal, unsafe left turn from Mountain Road, causing the collision on SR-138. He claimed that the skewed intersection at SR-138 and Mountain Road constituted a dangerous condition, causing vehicles that were turning left onto Mountain Road to routinely cut the comer in an attempt to beat the gap in front of oncoming vehicles. The Evans counsel noted that there had been 10 prior accidents at the same location and a citizen complaint was received 18 months prior to the accident. Additionally, counsel contended that video of the accident location demonstrated that vehicles turning left onto Mountain Road repeatedly would cut the corner. Thus, the Evans counsel contended that pylons should have been installed by Caltrans to channel drivers into the intersection to prevent drivers from cutting the corner. Lyons admitted liability, but claimed that Caltrans was partially liable for the accident. Caltrans denied there being a dangerous condition at the intersection in question, and denied it had either actual or constructive notice of any dangerous condition. Thus, Caltrans contended that Lyons was solely responsible for the accident. Injuries/Damages abrasions; aspiration; brain abnormalities; brain damage; dysphagia; fracture, acetabulum; fracture, mandible; fracture, radius; fracture, rib; fracture, skull; fracture, ulna; hematoma; laceration; loss of consortium; neurogenic bladder; neurogenic bowel; pneumonia; pneumothorax; respiratory; spastic quadriparesis; subarachnoid hemorrhage; tracheostomy/tracheotomy; traumatic brain injury Mr. Evans was thrown approximately 50 feet from his motorcycle and sustained catastrophic injuries, including a traumatic brain injury and multiple head and spinal cord injuries. At the accident scene, Mr. Evans was found to have an abnormal pattern of breathing and both of his pupils reacted sluggishly. He also did not move his upper extremities and had lost multiple teeth. Mr. Evans was subsequently intubated and taken emergently to Arrowhead Regional Medical Center. He was initially classified as a helmeted victim with a Glasgow Coma Scale at 6. Upon arrival at the hospital, Mr. Evans Glasgow Coma Scale was 3-T. He then had bilateral chest tubes placed and multiple transfusions were begun. Mr. Evans was diagnosed with a left, nondominant, open radio-ulnar and radial fracture, a left acetabular fracture and dislocation, an open fracture of the left leg with a mangled extremity severity score of 7. (A severity score of 7 or more predicts the need for amputation.) Mr. Evans also sustained a laceration to his left knee and multiple, right lower extremity abrasions. He also sustained a nasal bone fracture, Basilar skull fractures, a right temporal bone fracture, bilateral mandibular fractures, a C1 and C2 spine dislocation, bilateral first rib fractures, a mediastinal hematoma, left fifth and sixth rib fractures, bilateral adrenal hemorrhage, neurogenic bowel and bladder, Basilar atelectasis and bilateral pneumothoraces. Mr. Evans further sustained bilateral occipital horn subarachnoid hemorrhage, a brain stem injury, a foci and tentorium subarachnoid hemorrhage, a forehead laceration and a traumatic brain injury with loss of consciousness. In addition, Mr. Evans had blood in the left ear, mouth and bilateral nares. Due to the widened mediastinum and acute blood loss, Mr. Evans was stabilized and transferred to Loma Linda University Medical Center, where he 12

13 again underwent blood transfusions. His left leg was shortened and internally rotated. On April 30, 2009, he underwent open reduction and internal fixation of a distal radius fracture, open reduction of the intercarpal dislocation, the radiocarpal dislocation and triquetral fracture with wrist capsulorrhaphy and capsulodesis. He also had an intracranial pressure monitor bowl placed and due to his facial fractures, arch bars were placed. His cervical instability and cervical stenosis revealed central canal difficulties with a spinal cord injury noted with central cord syndrome. On May 6, 2009, Mr. Evans underwent posterior cervical instrumentation with posterior arthrodesis of the C1, C2, C3, C4, C5 and C6 vertebrae; cervical expansile laminoplasty at the C3, C4, C5 and C6 vertebrae; and open reduction of the cervical spine at the C1-2 distraction/dislocation. Mr. Evans then underwent open reduction and internal fixation of the bilateral mandibular fractures on May 15, Mr. Evans was later transferred to Kindred Hospital long-term acute care for rehabilitation on June 3, He was determined to have weakness in the upper extremities, greater than in the lower extremities, and was admitted to telemetry. Mr. Evans then had multiple consultations and aggressive therapy, and was started on stimulants. Near discharge, he was able to follow commands. On July 2, 2009, Mr. Evans was transferred to All Saints Healthcare, where he continued to receive rehabilitation. On Sept. 29, 2009, he was deemed appropriate for acute rehabilitation and was transferred to Northridge Hospital on Oct. 8, On exam, there were cognitive deficits noted with poor orientation and decreased processing, and oropharyngeal dysphagia persisted. Thus, it was determined that Mr. Evans had sustained severe neurological deficits affecting his upper extremity use, nonfunctional gross grasp, persistent contractures to interphalangeal joints and flexion contractures of the wrist. As such, Mr. Evans suffered from spastic quadriparesis. On further examination, it was noted that Mr. Evans had bilateral upper extremity contractures and to be in a remarkable amount of pain, causing him to be placed on chronic opioid therapy. It was eventually decided that Mr. Evans could be discharged home with home health physical, occupational and speech therapies. On Nov. 5, 2009, Mr. Evans was discharged, only to be readmitted to Antelope Valley Hospital on Nov. 8, 2009, with shortness of breath. He was subsequently diagnosed with aspiration pneumonia and was placed on antibiotic therapy. As a result, he remained hospitalized for four days before be discharged. However, Mr. Evans was again hospitalized at Antelope Valley Hospital on Nov. 15, 2009, again with pulmonary symptoms resulting in aspiration pneumonia. After being treated again, he was discharged on Nov. 19, 2009, but was readmitted on Dec. 27, 2009, again with pulmonary compromise and diagnosed with recurrent aspiration pneumonia. Mr. Evans was then readmitted on Dec. 30, 2009, after being discharged the day prior, and was placed on a ventilator. He had massive aspiration of tube feedings and was in the intensive care unit. On Jan. 3, 2010, Mr. Evans was transferred to Kaiser/Sunset with a tracheostomy tube, where he was admitted with aspiration pneumonia and discharged with home health care on Jan. 16, However, Mr. Evans was again hospitalized on Jan. 28, 2010, and discharged on Jan. 29, Thereafter, Mr. Evans was placed at All Saints skilled nursing facility. Mr. Evans currently requires 24-hour nursing care, which he will continue to need for the rest of his life. He is also ventilator dependent and fed by a gastrostomy tube. Mr. Evans wife, Meredith, also a prosecutor with the Los Angeles County District Attorney s Office, claimed that she was compelled to retire from the office in order to care for her husband. As a result, she brought a derivative claim, seeking recovery of damages for her loss of consortium. Result The jury found that Caltrans failed to remedy the dangerous condition in failing to install pylons that would have prevented drivers from cutting the corner, and which Caltrans knew was posing a substantial risk of injury to others. It also found Lyons 85 percent responsible for the collision and assigned the remaining 15 percent to Caltrans. Thus, the jury awarded a total of $31,580, to the plaintiffs, with Mr. Evans recovering $27,830, and Mrs. Evans recovering $3.75 million. Unsafe lane change led to paralyzing accident: plaintiff Case Type: Multiple Impact Motor Vehicle Multiple Vehicle Motor Vehicle Rollover Motor Vehicle Lane Change Torts Vicarious Liability Case: Pribble v. Sunbelt Rentals Inc., Maricopa Co., Ariz., Super Ct., , 2/16/2012 Plaintiffs Attorney: Francisco Guerra IV, Watts Guerra Craft, San Antonio Defense Attorney: William W. Drury Jr., Renaud Cook Drury Mesaros, Phoenix Jury verdict: $30,600,000 Facts & Allegations On Jan. 7, 2008, at 5:33 a.m., plaintiff Alan Pribble, 49, a golf-course superintendent, was driving to work in a Chevrolet pickup truck that was in the center lane westbound on Route 101 (between 57th and 75th Avenues) in Glendale. A few seconds ahead of him was a pickup truck driven by Jose Gonzalez, who merged onto the freeway via a ramp and proceeded into the left lane, where the left rear of his truck was struck by a flatbed commercial truck driven by Julian Garcia, who was in the course and scope of his employment with Sunbelt Rentals Inc. The impact caused Gonzalez to lose control of his vehicle and veer across the right lane and crash into a wall on the shoulder, at which time Gonzalez shot back out across the highway and struck the passenger side of Pribble s truck. The collision caused Pribble s vehicle to be pushed into the left lane where he struck another vehicle and proceeded into the median where his truck rolled over twice, coming to rest in the eastbound left lane of Route 101, at which time his vehicle was struck by another vehicle. During the rollover, Pribble suffered a fractured cervical vertebra, resulting in quadriplegia. Pribble sued Gonzalez, Garcia and Sunbelt for negligence. Gonzaelz, uninsured, did not appear for trial, and the court instructed the jury that it was required to find Gonzalez at least partially liable. Plaintiffs counsel argued that both Garcia and Gonzalez were liable for the collision with Pribble. The defendants denied the allegations. At trial Gonzalez s videotaped deposition was played wherein he said that he was proceeding down the ramp onto the highway and intended to enter the left lane. Before doing so, he checked his rearview mirror to ensure a safe distance and activated his left-turn signal; he then turned into the left lane, at which point his vehicle was struck by Garcia s vehicle. Defense counsel for Garcia and Sunbelt maintained that Garcia was in the left lane the entire time when Gonzalez improperly changed lanes and drove into Garcia. Therefore, Gonzalez was negligent for the collision. This theory was supported by the defense accident reconstruction expert. Injuries/Damages bedsore/decubitus ulcer/ pressure sore; cervical disc injury; emotional distress; fracture, C5-6; fracture, cervical; loss of consortium; paralysis; quadriplegia Following the crash, Pribble was taken by ambulance to an emergency room where he was stabilized and diagnosed with a C5-6 fractured vertebra. For the next 10 months Pribble underwent multiple surgeries that addressed his quadriplegia and bed sores that he sustained as a result. During that time he was treated at multiple rehab facilities until he was able to return home. The plaintiffs registered nursing expert recommended that Pribble, who at the time of trial was being taken care of by his daughter (Amanda Pribble), undergo 16 to 24 hours of home health care a day. Even though his daughter is diligent in her care of her father, it is not optimal because of her lack of nursing experience, the expert said. Pribble sought to recover approximately $2.5 million in past medical expenses, about $5.6 million in future medical expenses, and $1.5 million in past and future lost earning capacity. Pribble s daughter, son and mother sought to recover damages for loss of consortium pursuant to Arizona law. Pribble and the mother of their children are not married but are domestic partners; therefore, she was precluded from pursuing a claim per state law. Pribble testified that the accident radically changed his life, as he is no longer able to play golf and be active. The defense life care planning expert testified that Pribble s future medical costs were approximately $4.5 million. Result The jury found Gonzalez 100 percent liable and Garcia and Sunbelt 0 percent liable. The plaintiffs were awarded $30.6 million. The plaintiffs 13

14 settled with Garcia and Sunbelt for a confidential amount during jury deliberations. Suit: Brain injury from assault left man a different person Case Type: Speeding Motor Vehicle Rear-ender Motor Vehicle Dangerous Instrumentality Case: Adams v. The Imported Car Store Inc., Brevard Co., Fla., Cir. Ct., CA-54698, 10/13/2012 Plaintiffs Attorney: Douglas R. Beam, Douglas R. Beam P.A., Melbourne, Fla.; John F. Romano, Romano Law Group, West Palm Beach, Fla. Defense Attorney: Jade M. Gummer and David M. Tarlow, Quintairos, Prieto, Wood & Boyer, Orlando, Fla. Jury verdict: $28,500,000 Facts & Allegations On Oct. 17, 2005, plaintiff Shawn Adams, 43, a computer engineer, pulled into the lot of The Imported Car Store auto dealership in Melbourne after witnessing a motor vehicle accident. He claimed that he did so in order to offer assistance to a woman who was one of the drivers involved in the accident and/or provide a witness statement for any post-accident investigation. Adams claimed that after exiting his car, he saw that the driver who apparently had caused the accident later identified as Jason Neal, a sales manager for the dealership who was driving one of the business vehicles at the time of the collision was berating the female driver. Adams maintained that when he approached them and identified himself as a witness to the accident, Neal became enraged and head-butted Adams, knocking Adams unconscious and causing him to strike his head on the pavement. Neal who at the time was in his mid-30s, stood roughly 6 feet 2 inches, and weighed approximately 185 pounds allegedly continued to assault Adams who is 5 feet 10 inches and at the time weighed roughly 170 pounds as Adams lay on the ground, unconscious. According to Adams, several dealership employees witnessed Neal assaulting him, but did nothing to stop Neal. (The general manager for the dealership apparently had come out onto the lot after the accident and signaled the drivers to pull their cars onto the lot, but went back into the dealership by the time of the alleged assault.) Adams sued Neal; the dealership, The Imported Car Store; the dealership s apparent ownership entity, The Dingman Group, and its principal, William Dingman; apparent property owner JAB Real Estate; and another Dingman Group-owned dealership believed to have corporate ties to The Imported Car Store. The claims against Neal sounded in both negligence and intentional tort, while the other defendants were accused of negligent supervision and also were said to be vicariously liable for Neal s actions. Following a number of dismissals that occurred early in the litigation, the case proceeded toward trial as to the claims against Neal, The Imported Car Store and The Dingman Group. At trial, the jury heard that the dealership and its ownership entity did not reprimand Neal in any manner following the incident with Adams. (However, the jurors were not informed about criminal charges brought against Neal as a result of the incident.) Neal against whom a default judgment was entered in 2011 on failure-to-appear grounds was deposed by counsel for Adams prior to trial (at which he was not represented.) During the deposition, and in post-incident statements to police, Neal maintained that as Adams approached him, Adams raised one of his hands in a seemingly aggressive fashion, leaving Neal fearful that Adams was going to strike him. Neal did not dispute that he had head-butted Adams, but contended that he had done so only in self-defense. The dealership s general manager testified at trial, while a video deposition of William Dingman was played for the jury. Both reasoned that Adams had been trespassing on dealership property at the time of the incident between him and Neal; Dingman suggested that Adams was hoping to engage in some type of confrontation when he pulled into the dealership s lot. Defense counsel successfully requested that the jury be allowed to consider whether Adams had been contributorily negligent with respect to the incident. In response to the vicarious-liability argument, defense counsel for the dealership and its ownership entity argued that Neal had not yet clocked in when the incident with Adams occurred, and that he had not been acting within the course and scope of his employment in engaging in an altercation with Adams. Injuries/Damages diffuse axonal brain injury; dystonia; head; headaches; loss of consortium; loss of services; loss of society; neck; neurological impairment; postconcussion syndrome; traumatic brain injury; unconsciousness After regaining consciousness, Adams declined treatment at the scene of the incident. He claimed that he resumed driving to his place of work, but soon began to feel unwell, and pulled into a parking lot, where he fell asleep. He never arrived at work that day; roughly six hours after the incident, he went to an emergency room. However, after having not been seen by a doctor following a seven-hour wait, Adams left the ER, he claimed. Adams went to work the next day, but claimed that he immediately realized he was having trouble reading what appeared on his computer screen. He visited an ER again, and this time received treatment for a traumatic brain injury. Adams underwent treatment for postconcussion syndrome for roughly six months following the incident. However, his cognitive abilities never returned to their normal levels, he claimed. In March 2006, a treating neurologist reportedly told Adams that all relevant treatment options had been exhausted, and that there was nothing more that could be done other than to hope that Adams cognitive deficits would resolve on their own. Adams didn t work for three weeks. After a disability claim was denied, he eventually returned to working full-time, but claimed that his mental faculties were inconsistent, and that when he remained seated for lengthy periods, he would begin to experience severe neck and back pain. By early 2007, Adams claimed, he was suffering from uncontrollable, painful muscle contractions, and resumed treatment with neurologists for those symptoms. Adams claimed that he began drinking excessively in an attempt to compensate for the pain resulting from his contractions. In May 2007, he entered a rehabilitation facility for treatment of alcohol dependency. His employment with the software engineering firm where he was working at the time concluded in June By early 2008, Adams care providers, after ruling out other possible causes of his contractions, had diagnosed him as suffering from dystonia. An expert radiologist retained by counsel for Adams testified that the head trauma Adams incurred during the incident with Neal had resulted in a diffuse axonal injury. Treating neurologists, including one who specializes in neurological trauma, opined that Adams dystonia had been caused by the trauma he suffered during the incident with Neal. A treating orthopedic surgeon testified via video deposition that Adams dystonia led to permanent damage of the cervical spine that likely will necessitate fusion surgery in the future. A psychiatrist with whom Adams treated both before and after the underlying incident testified that he observed a marked diminution of Adams cognitive abilities following the incident. The jury was asked to award Adams $226,000 in damages for past medical costs and $2 million for future medical expenses. An expert in vocational rehabilitation retained by Adams counsel testified that Adams permanent loss of cognitive ability following the incident with Neal means that he is not capable of fulfilling the duties of a job that would be commensurate with his education and experience. An expert economist estimated Adams past lost earnings at more than $810,000 and his future loss of earning capacity at between roughly $2 million and $3 million (present value). Adams is married with three children, two boys and a girl, who were respectively aged 11, 10 and 8 as of October His wife, Elizabeth, joined in the action, asserting derivative claims in her own right and on behalf of the children. A clinical psychology expert opined that because of the significant physical and psychological changes Adams had undergone due to the head trauma he suffered during the incident with Neal, Adams is effectively a different person than the one his family knew prior to the incident. This negative transformation will be an ongoing source of grief for the family members, the expert reasoned. A marriage counselor with whom Adams and his wife had attended sessions both before and after the incident with Neal testified that Adams post-incident physical and psychological changes had placed an enormous strain on the couple s relationship. 14

15 With non-economic-damages figures included, the jurors were asked to award the Adamses a total of $44 million. A neurology expert retained by defense counsel who testified at trial via video deposition did not dispute that Adams was suffering from some form of dystonia, but argued that it was confined to Adams cervical area, and thus could not be secondary to head trauma. He further opined that bipolar disorder and/ or Adams regimen of anti-depressants could have been contributing factors in his developing cervical dystonia. (Counsel for Adams counterargued that Adams had never been diagnosed with bipolar disorder, and that no symptoms of dystonia had arisen until after he was injured during the incident with Neal.) A defense orthopedic surgery expert testified that whatever spinal symptoms from which Adams may have been suffering were not serious enough to possibly necessitate surgery. In response to the claims for lost-earnings damages, the defense argued that Adams alcohol abuse predated the incident with Neal and was not related to any symptoms he may have experienced as a result of that incident, and that this dependency would have independently precipitated a loss of employment, even if the incident with Neal had not taken place. It was also stressed, with respect to the derivative claims, that the Adamses had been experiencing marital problems prior to the incident with Neal. Result The jurors found that both the dealership and its ownership entity had been negligent in their supervision of Neal, and that Neal had been negligent with respect to the incident. No negligence was found as against Adams. Liability was apportioned at 30 percent for the dealership, 10 percent for the ownership entity, and 60 percent for Neal. Jurors further found that Neal had assaulted and battered Adams, and had intentionally or recklessly caused him emotional distress, and that both employer defendants were vicariously liable for Neal s acts. The jury awarded $28.5 million. The dealership and its ownership entity reportedly were covered under several layers of general liability coverage, with a total value of $11.5 million, at the time of the underlying incident. Driver paralyzed in rear-ender with tractor-trailer on highway Case Type: Case Type: Dangerous Condition Motor Vehicle Head- On Motor Vehicle Road Defect Motor Vehicle Center Line Motor Vehicle Multiple Vehicle Case: Hoffman v Crane, Cook Co., Ill., Cir. Ct., 07L-11406, 2/27/2012 Plaintiffs Attorney: Robert J. Napleton and Daniel T. Madigan, Motherway & Napleton, Chicago Defense Attorney: Jason Orleans, Chilton Yambert & Porter, Chicago; John W. Patton Jr., Patton & Ryan, Chicago; John M. Stalmack, Ruberry, Stalmack, & Garvey, Chicago Jury verdict: $27,672,152 Facts & Allegations On June 21, 2002, plaintiff Nancy Hoffman, 50, an office manager, was driving her vehicle eastbound on Interstate 80 near Tipton, Iowa, approximately 40 miles from the Illinois border. In the vehicle with her was her daughter, plaintiff Karen Hoffman. Ahead of them was a lane closure, with traffic beginning to slow down to approximately 30 mph. While approaching the lane closure, they were rear-ended by a tractortrailer driven by Dorlan Crane. Crane was returning to Princeton from Iowa, having delivered a load of steel coils approximately one hour prior to the accident. Hoffman sustained several injuries, rendering her paraplegic. Hoffman, her husband, Mark Hoffman, and their daughter sued Crane and his employer, Illinois State Motor Service Inc., claiming motor vehicle negligence. Also named as defendants in the action were: 3PL Corp., the licensed freight broker company that arranged the steel to be transported by Crane s employer; and Ryerson Tull Coil Processing Division, the company that sold the steel coils to Crane s employer. According to the plaintiffs, the three companies were engaged in a joint venture, and Crane was an agent of each of the three entities. The case was initially filed in Cook County in 2002, under the case number 02-L However, it was renumbered in 2007, following a decision by the Illinois Appellate Court which denied a motion to have the case venue moved to Iowa. Entities Dormark Construction, Pilot Corp., and Sapp Brothers Travel Center were also named as defendants in the case. However, Pilot Corp. and Sapp Brothers settled with the plaintiff during the course of discovery. Dormark Construction was dismissed due to lack of jurisdiction in Illinois. According to plaintiff s counsel, Crane rearended Hoffman s vehicle because he failed to maintain a proper lookout, and failed to maintain control of the truck. According to testimony from a female witness, who was driving to Crane s truck, he was looking into her vehicle, tapping on his side view window with a soda cup approximately 30 seconds before rear-ending Hoffman. According to plaintiff s counsel, Crane was paying attention to the witness, a young mother driving her children, and not the road. Defense counsel for Crane and Illinois State Motor Service denied that Crane was driving negligently, and contended that Hoffman stopped suddenly, not allowing Crane enough time to stop. According to Crane, the accident was unavoidable. Counsel for Crane and Illinois State Motor Service admitted agency with regards to Crane, and admitted that there was a joint venture that existed between all of the defendants. Counsels for 3PL and Ryerson denied that a joint venture existed between the defendants. Both defendants claimed that Crane was an independent contractor and neither had any control over him. Injuries/Damages catheterization; colostomy; fracture, T4; fracture, T5; loss of consortium; loss of services; neurogenic bladder; neurogenic bowel; paraplegia; pins and rods; soft tissue; subarachnoid hemorrhage; vision, impairment Hoffman and her daughter were taken by ambulance to the University of Iowa Medical Center, in Iowa City. Karen was treated and released, diagnosed with only soft-tissue injuries. Hoffman was admitted until July 27. She was diagnosed with permanent paraplegia, with no use of her legs due to a fracture at T4-T5 and a dislocation of her spine. She also sustained a blow-out fracture of her left orbital floor, a subarachnoid hemorrhage, impaired vision, and neurogenic bowel and bladder. At the hospital, rods were inserted into her spine. A permanent colostomy and suprapubic bladder catheter were also installed. The family sought $1,017,555 for the past medical bills, as well as $1.3 million in lost wages based on the 17 years she would no longer be able to work as an office manager. Also sought for her were loss of normal life, pain and suffering, disfigurement and a shortened life expectancy. Mr. Hoffman filed a derivative claim for loss of consortium and loss of household services. Also sought were medical costs and pain and suffering damages for Karen. The amounts were testified to by the plaintiff s economic expert. Plaintiff s counsel asked the jury for a total of $39,516,513. The defense disputed the amount of money the plaintiffs sought. Result The jury found that all of the defendants were engaged in a joint venture and that Crane was an agent for them. It awarded the Hoffmans $27,672, Plaintiff suffered traumatic brain injury in high-speed collision Case Type: Speeding Motor Vehicle Rear-ender Motor Vehicle Dangerous Instrumentality Case: Watson v. Fisher, Orange Co., Fla., Cir. Ct., 2011-CA , 9/18/2012 Plaintiffs Attorney: Steven W. Igou, Orlando, Fla.; Kevin C. Maxwell, Law Offices of Kevin C. Maxwell, Orlando, Fla. Defense Attorney: Not represented Jury verdict: $27,566,690 Facts & Allegations On Jan. 14, 2007, plaintiff Angela Watson, 38, a homemaker, was driving a minivan on Interstate 95 in Brevard County when she was rear-ended by Crystal Walker who was driving a rental from EZ Rent A Car Inc. Watson claimed brain injury. The car was rented by Jessy Nicole Fisher. Watson sued Walker, claiming that she was negligent in the operation of her vehicle, and sued Fisher and EZ Rent A Car Inc. for vicarious liability. Plaintiff s counsel maintained that witnesses observed Walker driving more than 100 mph when she slammed into the back end of Watson s minivan. EZ Rent A Car Inc. was dismissed before trial pursuant to the Graves Amendment. Watson also asserted an uninsured motorist claim against her insurance carrier, Allstate 15

16 Insurance Co., that was settled before trial. Walker could not be located and was never served in the lawsuit. Fisher s insurance carrier denied liability and coverage, contending Fisher was responsible because her coverage did not extend to the rented vehicle. The plaintiff was granted summary judgment on liability against Fisher prior to trial under Florida s dangerous instrumentality doctrine. The doctrine imposes vicarious responsibility upon the owner or other possessor of a motor vehicle who voluntarily entrusts it to another for any subsequent negligent operation which injures a member of the traveling public. Injuries/Damages back; epidural injections; hemorrhage; neck; physical therapy; traumatic brain injury Watson declined treatment after the accident. She complained of neck and back pain the next day and began treatment. Watson underwent a period of physical therapy session and had epidural injections. A month after the accident, Watson visited a neurologist with complaints difficulty in speaking, dizziness and problems with balance. Watson s doctor took an MRI, which showed that she had a hemorrhage in her left frontal lobe of the brain. Watson was diagnosed with a traumatic brain injury and speech aphasia. Watson underwent speech and occupational therapy. Watson claimed that she continues to have difficulty speaking and walking. She also claimed that she has photophobia, cognitive deficits and chronic fatigue as a result of her traumatic brain bleed. Watson claimed that she used to have an active lifestyle before the accident, but is now isolated and does not go out of her home as much. Result The jury determined that Watson s damages totaled $26,566,690. Wal-Mart failed to inspect tire tread properly, family claimed Case Type: Truck Motor Vehicle Single Vehicle Wrongful Death Survival Damages Worker/Workplace Negligence Negligent Maintenance Case: Flores v. Wal-Mart Stores Inc., Duval Co., Texas, Dist. Ct., DC , 11/15/2012 Plaintiffs Attorney: Jason P. Hoelscher and Craig M. Sico, Sico, White, Hoelscher & Braugh, Corpus Christi, Texas Defense Attorney: Willie Ben Daw III Daw & Ray, Houston; Monte J. English English & Clemons, Corpus Christi, Texas Jury verdict: $27,500,000 Facts & Allegations On April 11, 2010, plaintiffs decedent Justin M. Flores, 18, was a passenger in a full-size 2006 Nissan Titan pickup driven by Lorena Esparza on State Hwy. 44, several miles west of San Diego, Texas. The vehicle s tires were badly worn, and the road was wet. The vehicle hydroplaned, went out of control, and crashed, killing Flores. On Dec. 10, 2009, the truck had passed a safety inspection at Cantu Chevrolet, in Freer. On Dec. 28, 2009, Esparza took the truck to a Wal-Mart in Alice for a 15-point service that included an oil change, a tire inspection, and an overall vehicle inspection. The plaintiffs, Flores family, claimed that Wal-Mart employees failed to properly inspect the tires or take accurate tread depth measurements. Flores mother sued Esparza for speeding and failing to replace the tires and sued Wal-Mart Stores Inc., Wal-Mart Stores Texas L.P., Wal-Mart Stores Texas LLC, and Arthur Cantu Enterprises LLC, d/b/a Cantu Chevrolet, for failing to inspect the tires properly. Cantu Chevrolet settled the week before trial for a confidential amount. At trial, the plaintiff argued that Wal-Mart alone was at fault. She alleged that Wal-Mart employees told Esparza on Dec. 28 that the tires were in a serviceable and safe condition and that they did not need to be replaced. The plaintiff also alleged that Wal-Mart failed to create and implement adequate policies and procedures in its stores and specifically in its Tire & Lube Express business. The plaintiff s expert on tire forensics, Troy Cottles, opined that, at the time of the inspection by Wal-Mart, the right rear tire s tread depth was less than 2/32 inch in places, and the left rear tire s tread depth was less than 4/32 inch in places. The plaintiff s expert on tire retail standards and practices, William O. Hagerty, testified that a prudent tire retailer should recommend replacement of tires once the tread depth is 4/32 inch or less, and that the law requires replacement at 2/32 inch. The plaintiff s accident reconstruction expert opined that Flores acted as a reasonably prudent driver. Esparza contended that Wal-Mart alone was at fault. Wal-Mart argued for negligence of 75 percent on Esparza and 25 percent on her father, who owned the vehicle and was designated as a responsible third party. There was eyewitness testimony that Esparza was going as fast as 80 to 85 mph before the accident. Wal-Mart s tire expert opined that the tread depth was 6/32 inch when Wal-Mart measured it, and that it decreased over the following months leading up to the accident. Injuries/Damages death Flores was killed in the accident and was survived by his mother, who sought damages for wrongful death. She underwent treatment with a medical doctor for depression after the accident. Flores was on his school s cross-country team. The school was district champion and a state finalist in that sport. Plaintiffs counsel said the plaintiff sought $30 million to $40 million. Wal-Mart s counsel said the plaintiff sought $40 million. Wal-Mart asked the jury to award $1 million. Result The jury found Lorena Esparza 12 percent negligent and Wal-Mart Stores Texas LLC 88 percent negligent and awarded JoAnn Flores $27.5 million for her son s wrongful death. The jury found no negligence by Cantu Chevrolet. Wal-Mart is jointly and severally liable for the entire award, and Esparza is jointly and severally liable for 12 percent. School district failed to prevent student s sexual assault: suit Case Type: Negligent Supervision Worker/Workplace Negligence Negligent Retention Intentional Torts Sexual Assault Case: Doe v. Los Angeles Unified School District, Los Angeles Co., Calif., Super. Ct., BC424823, 12/18/2012 Plaintiffs Attorney: Stephen J. Estey, Estey & Bomberger, San Diego; Donald Joseph Beck, Law Office of Donald Joseph Beck, San Diego Defense Attorney: David D. Ernst and Stephen L. Backus, Backus, Bland, Navarro & Weber, Los Angeles Jury verdict: $23,000,000 Facts & Allegations During the 2008/2009 school year, the plaintiff, a 10-yearold fifth grade student who went by the name Matt, was allegedly sexually assaulted by Forrest Stobbe, his fifth grade teacher at an elementary school in the Los Angeles Unified School District. Matt also claimed that Stobbe sexually assaulted him during summer excursions to amusement parks after school let out in June In September 2011, Stobbe pleaded guilty to criminal charges of continuous sexual abuse of Matt. Matt s father, Walter, acting as the guardian ad litem, sued Stobbe and the Los Angeles Unified School District. He brought causes of action for negligent supervision, negligent retention and breach of mandatory duty against the school district. Stobbe was ultimately dismissed as a party prior to trial. Plaintiff s counsel contended that the principal of the elementary school and other Los Angeles Unified School District executives and administrators had prior notice of Stobbe s improper conduct, which presented a danger to students, yet chose not to adequately monitor or supervise the conduct. Counsel argued that as a result Matt was repeatedly molested during the school year. In addition, counsel argued that the school district was responsible for any off-premises molestation since it began on school premises. Matt claimed that two years before he was molested, the principal saw Stobbe put a female student in his car, but took no action because the principal believed Stobbe was friends with the girl s parents. Matt also noted an incident in the fall of 2008, during which a 10-year-old female student complained that Stobbe put her hair in a ponytail and tapped her once in the upper hip/ buttock area. Counsel for the Los Angeles Unified School District noted that the first prior incident was that Stobbe gave a female student a ride home with verbal parental permission, and that the second prior incident involved a female student alleging 16

17 that Stobbe touched her hair and buttocks during a math problem in a crowded classroom. Thus, counsel argued that the plaintiff s evidence, based on two prior incidents, was insufficient to give school officials notice that Stobbe posed a danger to students. The principal of the elementary school in the Los Angeles Unified School District testified that she called the Los Angeles Police Department about the incident with the 10-year-old female student, mailed a Suspected Child Abuse Report to the police department, and sent the report to other Los Angeles Unified School District executives and administrators. However, she claimed that after she reported the incident, the police told her to handle it administratively. The principal claimed that as a result, she investigated the alleged touching of the 10-year-old female student and found, based on the numerous statements taken, that the claims were insufficient to require her to tell employees that Stobbe would harm children. In addition, the principal claimed that she monitored Stobbe in a reasonable manner. Defense counsel further asserted that the Los Angeles Unified School District was not responsible for the acts of abuse that took place during the summer of 2009, after Matt had graduated from elementary school and the school year had ended. Injuries/Damages anxiety; emotional distress; mental/psychological; post-traumatic stress disorder; sexual assault Matt claimed he suffers continuing psychiatric residuals resulting from the repeated sexual abuse, including not only post-traumatic stress disorder, but also severe anxiety, humiliation, mental suffering, fear of intimacy, shame and loss of enjoyment of life. He alleged that after his classmates learned of the molestations, he faced daily taunts at school, such as Where s your boyfriend? He claimed that as a result, he considered suicide and wrote a will saying goodbye to those he loved. Matt claimed he continues to suffer panic attacks when he is alone with an adult male who in any way resembles Stobbe. Thus, he treats with ongoing psychiatric therapy. Plaintiff s counsel asked the jury to award Matt a total of $25 million in past and future noneconomic damages. All claims for past and future economic damages were waived. Counsel for the Los Angeles Unified School District contended that while Matt did suffer some emotional distress from the sexual abuse, he also had significant problems in his home life and an unrelated attention deficit-hyperactivity disorder condition. Result The jury found the Los Angeles Unified School District 30 percent at fault and nonparty Stobbe 70 percent at fault. Thus, Matt was awarded $23 million in total damages, but will recover $6.9 million based on the school district s percentage of fault. Pedal-to-the-metal trucker toppled other truck, suit alleged Case Type: Speeding Motor Vehicle Broadside Motor Vehicle Intersection Motor Vehicle Multiple Vehicle Motor Vehicle Passenger Case: Abreu v M&M Truck & Body Repair Inc., Bronx Co., N.Y., Sup. Ct., /15/2012 Plaintiffs Attorney: Robert J. Genis, Sonin & Genis, Bronx, N.Y.; Gerard Lucciola, Rosato & Lucciola, New York Defense Attorney: Michael G. Pomposello, Jeffrey Samel & Partners, New York Jury verdict: $21,980,000 Facts & Allegations On Nov. 6, 2007, plaintiff Agapito Lopez, 41, a truck driver, was driving on Faile Street, near its intersection at Viele Avenue, in the Hunts Point section of the Bronx. Plaintiff Manuel Abreu, 37, a truck driver, was a passenger. While Lopez was proceeding through the intersection, his 26-foot-long truck s right side was struck by a tractor-trailer that was being driven by Librado Sanchez, who was traveling on Viele Avenue. Lopez s truck flipped onto its left side. Abreu claimed that he sustained injuries of an ankle, a knee and a shoulder. Lopez claimed that he sustained injuries of a knee and his neck. Abreu and Lopez sued Sanchez and his vehicle s owner, M & M Truck & Body Repair Inc. Abreu and Lopez alleged that Sanchez was negligent in the operation of his vehicle. They further alleged that M & M Truck & Body Repair was vicariously liable for Sanchez s actions. Lopez claimed that the collision occurred after his truck had cleared about 75 percent of the intersection. He contended that Sanchez was speeding. Sanchez contended that Lopez ignored a stop sign that governed his entrance to the intersection. Injuries/Damages ankle ligament, tear; arthroscopy; chiropractic; chondromalacia / chondromalacia patella; disc protrusion, cervical; knee surgery; medial meniscus, tear; meniscus, tear; physical therapy; rotator cuff, injury (tear) Abreu was placed in an ambulance, and he was transported to Lincoln Medical and Mental Health Center, in the Bronx. He underwent X-rays and minor treatment. Abreu ultimately claimed that he sustained a tear of his left shoulder s rotator cuff, a tear of his left knee s medial meniscus and tears of ligaments of his left ankle. He underwent arthroscopic surgery that addressed the injuries of his left knee and shoulder, and he underwent open surgery that addressed the injuries of his left ankle. He also undergoes physical therapy. Abreu claimed that he suffers residual pain and limitations that prevent his resumption of work. He sought recovery of his past and future medical expenses, his past and future lost earnings, and damages for his past and future pain and suffering. 17 Lopez was placed in an ambulance, and he was transported to Lincoln Medical and Mental Health Center, in the Bronx. He underwent X-rays and minor treatment. Lopez ultimately claimed that he sustained a protrusion of an intervertebral disc of his spine s cervical region. He also claimed that he sustained a tear of his left knee s meniscus. He contended that his left knee developed chondromalacia: softening of the cartilage. Lopez s left knee s injuries were addressed via arthroscopic surgery. He also undergoes chiropractic manipulation and physical therapy, but he claimed that his neck and left knee remain painful. He contended that his pain prevents his resumption of work. Lopez s treating doctors opined that Lopez will have to undergo replacement of his left knee, removal of his problematic disc and fusion of the associated portion of his spine. Lopez sought recovery of his past and future medical expenses, his past and future lost earnings, and damages for his past and future pain and suffering. Result The jury found that the defendants were liable for the accident. It determined that the plaintiffs damages totaled $21.98 million. Post-Trial Defense counsel has moved for a new trial. Alternatively, he is seeking a reduction of the awards for the plaintiffs medical expenses. Coca-Cola allowed its drivers to use phones while driving Case Type: Intersection Motor Vehicle Cell Phone Motor Vehicle Left Turn Worker/Workplace Negligence Negligent Training Worker/Workplace Negligence Negligent Supervision Agency/Apparent Agency Vicarious Liability Case: Chatman-Wilson v. Cabral, Nueces Co., Texas, Ct. At Law No. 2, , 05/04/2012 Plaintiffs Attorney: Robert C. Hilliard, Hilliard Munoz Gonzales, Corpus Christi, Texas; Thomas J. Henry, Law Offices of Thomas J. Henry, Corpus Christi Defense Attorney: Darrell Barger, Hartline Dacus Barger Dreyer, Corpus Christi Jury verdict: $21,544,873 Facts & Allegations On Aug. 3, 2010, plaintiff Vanice Chatman-Wilson, 37, a financing employee, was driving a sedan heading west on Leopard Street through its intersection with McKenzie Road, in Corpus Christi. Araceli Venessa Cabral was driving a Coca-Cola Enterprises Inc. truck, taking a left turn from Leopard Street onto McKenzie Road, and struck the driver side of the plaintiff s vehicle. Chatman-Wilson sustained shoulder, neck, arm and back injuries. Cabral was using a hands-free cell phone headset. Chatman-Wilson sued Coca-Cola and Cabral contending that Cabral was negligent in the operation of the vehicle for failing to properly execute a left turn, and that Coca-Cola was vicariously liable and negligent in the training, supervision and management of the employee. Chatman-Wilson contended that Cabral was talking on a cell phone at the time of the

18 accident, and that the investing officer found her at fault for failing to yield the right-of-way while turning left. Plaintiff s counsel maintained that Coca- Cola had a negligent policy in place that allowed employees to talk on their hands-free phones while driving company vehicles. Coca-Cola should not have allowed Cabral to talk on her phone while driving, and that failure to train employees not to do so was negligent, counsel argued. The defendants contended that, while the company s driver was responsible for the accident, the driver s use of the cell phone was not the proximate cause of the accident. Coca-Cola conceded that employees are required to use hands-free devices when operating a motor vehicle, but contended that the policy was consistent with state traffic laws, and exceeded state law safety requirements. Injuries/Damages chiropractic; contusion; discectomy; hardware implanted; herniated disc at L4-5; physical therapy; trigger point injection; whiplash Chatman-Wilson sustained a herniation at L4-5, contusions of her torso, arms and legs, and soft-tissue whiplash injuries of the neck and back. After the accident she drove home, but within hours drove herself to the emergency room. She underwent conservative treatment for six months, including physical therapy and chiropractic sessions three to four times a week and four trigger point injections. In February 2011, she underwent a discectomy with instrumentation at L4-5. Chatman-Wilson underwent another course of physical therapy and continued to treat with an orthopedist approximately once a month. Chatman-Wilson claimed to sustain pain and limitation in her neck, which caused pain when standing or sitting for lengthy periods of time. Following the accident, she returned to work for approximately a week, but claimed she was unable to continue thereafter due to the injuries. She claimed the injuries also rendered her unable to exercise, or perform her household chores, such as cooking, cleaning and caring for her children. The plaintiff s vocational rehabilitation expert opined that the injuries were permanent and she would never be able to return to work, which would cost some $900,000 in future medical expenses. She sought recovery for past and future pain and suffering, along with lost wages and medical costs. She also sought punitive damages, arguing that the company s policy regarding cellular phones was reckless and called for a ban on using a cell phone while driving. The defense vocational rehabilitation expert contended that Chatman-Wilson was able to return to work. The defendants asked the jury to award between $300,000 and $400,000 for her claim. Defense counsel argued that the cell phone policy was reasonable, making punitive damages unnecessary. Result The jury found for the plaintiff and awarded Chatman-Wilson $21,544,873. Post-Trial The defendants plan to appeal the case. Plaintiff: Company negligently entrusted tractor-trailer to driver Case Type: Red Light Motor Vehicle Intersection Motor Vehicle Tractor-Trailer Motor Vehicle Negligent Entrustment Motor Vehicle Broadside Case: Rivas v. Gaines, Los Angeles Co., Calif., Super. Ct., BC436965, 8/2/2012 Plaintiffs Attorney:Brian J. Panish and Spencer R. Lucas, Panish Shea & Boyle, Los Angeles Defense Attorney: William L. Thorpe Fennemore Craig, Phoenix; William T. DelHagen, Murchison & Cumming, Los Angeles Jury verdict: $20,011,788 Facts & Allegations At about 1:30 a.m. on May 2, 2008, plaintiff Marina Rivas, 47, a saleswoman, was driving on Telegraph Road in Pico Rivera, on her way home from a business trip, when she entered the intersection with Paramount Boulevard and was struck by an 18,000-pound J.B. Hunt tractor-trailer operated by Jeffrey Gaines. Rivas vehicle was subsequently pushed through the intersection with such force that it left the roadway and slammed into a pole. Rivas sustained a traumatic brain injury and cervical injury. Gaines, an employee of J.B. Hunt Transport Services Inc., fled the scene of the accident, making no attempt to report the incident or render any type of emergency care to Rivas. He ultimately pleaded no contest to a criminal charge of hit-and-run. Rivas sued Gaines and J.B. Hunt Transport Services Inc. She alleged that Gaines was negligent in the operation of his tractor-trailer and that J.B. Hunt was vicariously liable for his actions. Rivas claimed that Gaines ran a stop light on Paramount Boulevard, resulting in the crash. Her counsel introduced evidence at trial that demonstrated that Gaines had been hired and fired by J.B. Hunt twice in the past, and had held 15 different jobs in the trucking industry since Plaintiff s counsel also noted that Gaines had a history of safety violations, including failing to report and attempting to cover up traffic accidents. As such, counsel contended that J.B. Hunt negligently entrusted its truck to Gaines. Gaines claimed that he ran the red light because of a chronic kidney problem, which caused him to black out. J.B. Hunt disputed liability for four years leading up to the trial, claiming both that Rivas was at fault for the accident and that Gaines suffered an emergency medical condition arising from kidney failure, which led him to blackout. Gaines was ultimately dismissed from the case during trial for a waiver of costs, and J.B. Hunt admitted liability after the first week of trial. Thus, the matter continued on the issues of injuries and damages. Injuries/Damages amnesia; bulging disc, cervical; cognition, impairment; concussion; depression; fusion, cervical; subarachnoid hemorrhage Fire personnel had to extract Rivas from the wreckage and she was subsequently taken to a hospital. Rivas was diagnosed with a concussion and had soft-tissue injuries that included a cervical strain. She also complained of having memory loss and concentration problems. She was ultimately diagnosed with a 2-millimeter cervical bulge at the C5-6 level, which required a disc replacement and fusion surgery. Several years after the accident, a brain MRI was taken, which revealed a small hole to the corpus callosum area of Rivas brain. Rivas claimed that she continues to suffer from serious cognitive impairments, chronic physical pain, depression and other conditions as a result of her injuries. She has been unable to work since the accident and was required to move in with her cousin, who helps care for her financially and physically. Rivas has been actively participating in a brain injury rehabilitation program. Defense counsel admitted the reasonableness of the medical billing and lost earnings. However, counsel contended that the only issue regarding Rivas injuries left to be resolved was the nature and extent of the brain injury and future medical expenses. Result The jury awarded Rivas $20,011, against J.B. Hunt, which included stipulated past medical expenses. However, the jury found against any award of punitive damages. Mom: Drunken driver who killed son may have had.16 BAC Case Type: Alcohol Involvement Motor Vehicle Rear-ender Motor Vehicle Multiple Impact Case: Estate of Beard v. Gomez, Palm Beach Co., Fla., Cir. Ct., 2008CA024019XX, 7/19/2012 Plaintiffs Attorney: Diego C. Asencio, Diego C. Asencio, P.A., North Palm Beach, Fla.; Bill Bone, Larmoyeux & Bone, West Palm Beach Defense Attorney: Not represented Jury verdict: $20,000,000 Facts & Allegations On Dec. 21, 2006, plaintiff s decedent Matthew William Beard, a 21-year-old man on disability, was a back-seat passenger in a Honda that was struck from the rear by a Cadillac owned and operated by Mauricio Gomez. Gomez was driving southbound on I-95 near Lake Worth. As traffic slowed, Gomez s vehicle collided with the side of a sedan, then struck the rear of the Honda, forcing the vehicle to spin around one and a half times and strike the Cadillac again, before it traveled 107 feet, struck the concrete median barrier, and came to rest. In total, the collision covered 292 feet across all three southbound lanes. Matthew Beard survived for eight days before dying as a result of his injuries. Following the crash, Gomez was found to have a blood alcohol content level of.13. He was arrested and charged with driving under the influence (DUI) manslaughter. Gomez was sentenced to 12 years in prison. Beard s mother, Constance Beard, sued Gomez, 18

19 alleging he was negligent for speeding, for failing to keep a proper lookout, and for driving while impaired by alcohol. Gomez chose not to attend the trial. Information about Gomez s arrest and sentence were not before the jury. A trooper with the Florida Highway Patrol authenticated a diagram shown to the jury, depicting the crash and the distance the vehicles traveled. The trooper further testified that, due to 143 feet of skid marks observed at the scene and the distance the vehicle traveled, it was not necessary to perform an analysis to determine the exact speed Gomez had been traveling. An audiotape of Gomez admitting that he could have been driving as fast as 90 mph was introduced into evidence. Plaintiff s toxicology expert opined that everyone is impaired with a.08 blood alcohol level, and further opined that Gomez was very impaired at the time of the crash. He also explained the burnoff rate, and opined that, based on the fact that the body burns off.02 percent alcohol every hour and the blood alcohol test was administered 1.3 hours after the crash, Gomez s BAC at the time of the crash could have been as high as.16. The toxicologist further opined that a person s normal reaction speed of one second would be doubled with an increased BAC, which, for a vehicle traveling 90 mph, would equate to increasing the reaction distance from 132 feet to 264 feet. Injuries/Damages death; depression; internal bleeding; shunt Beard was taken to a hospital via ambulance with severe internal injuries. A shunt was installed in the back of his skull, and he underwent some $200,000 worth of medical treatments. He died eight days after the crash. Matthew was Constance Beard s only child and she had been a single mother. Beard sought recovery for the pain she suffered in relation to the loss of her only son. She spoke about her hopes and expectations that her son would live, including a story of how she prayed at the hospital chapel on Christmas Eve and then found out later that night that if her son recovered, he would be severely brain damaged. Beard also spoke about her son s work researching and restoring coral reefs, and that, on the day of the crash, her son had been accepted to work at the National Oceanic and Atmospheric Administration based on his research finding that certain coral reefs are sensitive to light. Several family members testified about Matthew Beard as well. Plaintiff s counsel contended that Constance Beard was entitled to recovery for her suffering. He argued that boxers are paid for their suffering, and that even artistic depictions of grief, such as Edvard Munch s The Scream, can be valued in hundreds of millions of dollars. Plaintiff s counsel asked the jury to award $51 million in compensatory damages, as well as punitive damages. He said depending on the compensatory award, Beard might not seek punitive damages. Plaintiff s counsel tried to introduce several photographs from the medical examiner s office and of Matthew while he was on life support; the court rejected all but one photograph, one of Matthew in the hospital. Plaintiff s counsel also tried to have evidence showing that Gomez had several prior speeding tickets entered into admission to argue that his conduct was willful and outrageous, but the request was denied. Result The jury awarded Constance Beard $20 million. It also found that punitive damages were warranted; however, Beard elected not to pursue an award for punitive damages, which would have been determined in a second phase of the trial. Faulty construction damaged property: condo association Case Type: Defects Fraud Fraudulent Concealment Professional Negligence Breach of Fiduciary Duty Consumer Protection Warranties Intentional Torts Misrepresentation Case: Gold Peak Homeowner s Association v. Gold Peak at Palomino Park, LLC, 18th Jud. Dist. Ct. of Colo., 2010-cv- 3106, 3/13/2012 Plaintiffs Attorney: Mari K. Perczak and Scott F. Sullan, Sullan, Sandgrund, Perczak & Nuss, Denver Defense Attorney: Brad Ramming, Sweetbaum Sands Anderson, Denver; Amanda Wiley, Taylor Anderson, Denver Jury verdict: $18,200,000 Facts & Allegations The plaintiff, the Gold Peak Homeowners Association, is a Coloradobased nonprofit that is the homeowner association for the Gold Peak at Palomino Park condominium community, which consists of 39 buildings containing 259 residential condominium units. Construction of the community began in 2005 and was completed in Tri-Star Construction West, LLC was the general contractor on the project and Gold Peak at Palomino Park, LLC, a subsidiary of a subsidiary of Reis Inc., was the project developer. Gold Peak at Palomino Park and Reis, formerly known as Wellsford Park Highlands Corp., controlled the property through declarant-appointed members of the homeowners association s board, including David Strong and Jeffrey H. Lynford. Strong and Lynford were agents and employees of the companies until April 2008, when they turned control of the homeowners association over to a homeowner-elected board. After the turnover, homeowners began reporting problems with the facilities. The Gold Peak Homeowners Association sued Tri-Star Construction West, Gold Peak at Palomino Park, Reis, Strong and Lynford, alleging the parties were negligent and misrepresented or failed to disclose alleged defects in the project, committed fraud and fraudulent concealment, breached fiduciary duties and implied warranties, and violated Colorado s Consumer Protection Act. The Gold Peak Homeowners Association also sued Peak Civil Consultants Inc., the project s civil engineers. It settled its claims against Peak Civil Consultants before trial for $700,000. The homeowners association alleged that construction defects resulted in property damage, and that the defendants knew or should have known of the alleged defects during the project s construction. The association further alleged that the defendants concealed the defects from the homeowner-controlled homeowners association board, both before and after the turnover. The association alleged that the construction defects included improper grading and drainage, inadequate windows, and building envelope and sound transmission problems. The association further contended that Gold Peak at Palomino Park and Reis, as the employers and principals of the declarant-appointed board members, Strong and Lynford, were negligent for failing to address the problems during the construction phase. The defendants denied liability for the alleged defects, arguing that they had constructed the project in accordance with building code requirements. Photographs of the alleged defects were introduced into evidence. Injuries/Damages The Gold Peak Homeowners Association contended that the community had severe defects that led to grading and drainage problems, frost heave, and building envelope leaks. The association submitted a plan to repair the damage and alleged defects. The plaintiff s housing repairs expert estimated that the necessary repairs would cost about $19.2 million. The defendants contended that the project could be repaired at a much lower cost than the plan proposed by the association. Result The jury found for the Gold Peak Homeowners Association and determined that damages totaled $18.2 million. It also found Gold Peak at Palomino Park to be 1 percent liable, Reis 79.7 percent liable, Tri-Star Construction West 9.3 percent liable, and Peak Civil Consultants, which was a non-party defendant at trial, 10 percent liable. The jury then subsequently found Gold Peak at Palomino Park, Reis, Strong and Lynford jointly and severally liable for the entire verdict due to their concerted actions. Post-Trial The plaintiff settled with Reis Inc., Gold Peak at Palomino Park, LLC, Strong and Lynford for $17 million, while post-trial motions were pending. The court entered judgments against Tri-Star Construction West, LLC totaling $2,448,201.51, including trial costs. Award amounts reflect the jury s award and do not include increases or decreases resulting from contributory negligence, settlements or other post-trial activity. Reprinted with permission from the March 4, 2013 edition of The National Law Journal (Top 100 Chart) and VerdictSearch (Full Case Summaries) ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information contact, or #

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