10-Year Defense Trial Overview

This was a wrongful death case. In addition to alleging medical malpractice, plaintiff alleged negligent training and supervision, and negligence per se for a claimed violation of the Arizona Administrative Code. Plaintiff sought compensatory and punitive damages.

The decedent, a 20-month-old boy, was born prematurely and placed on a ventilator, then underwent tracheostomy surgery. He was breathing through a tracheostomy tube at the time of his death. A respiratory technician at Hacienda (Defendant), working under a temporary license, was performing a scheduled replacement of the velcro ties that secured decedent’s tracheostomy tube when the tube came out. Despite quick reinsertion of the tube, the decedent went into pulmonary hypertensive crisis and died.

Plaintiff Tan specifically alleged that Hacienda was negligent for not properly training or supervising a respiratory therapist who had a temporary license. She alleged that this lack of supervision violated the Arizona Administrative Code. She further alleged that the respiratory therapist was negligent for not following the proper procedure for performing a trach tie change. She also alleged that Hacienda’s records were falsified to cover up the negligence of the respiratory therapist. Defendant argued that both the respiratory therapist and Hacienda met the standard of care and that a subclinical condition suffered by the decedent, which would not have been known to Defendant, was the true cause of his death. Further, because of the subclinical condition, the likelihood of his death was imminent. Plaintiff asked for $6 million dollars at trial. After a ten-day trial, the jury found for Defendant.

Plaintiff Kathleen Ochsenhirt claimed that her hand had been caught between a boat and its trailer and her low-boy boat hauler when the strap holding the boat and trailer snapped, causing the boat and its trailer to fall onto the boat hauler. Plaintiff claimed that the boat trailer tire fell on her hand and then bounced up, allowing her to pull out her hand. Plaintiffs claimed that Nordic was negligent by using a damaged or defective strap. Plaintiff claimed injuries to her hand (bruise and carpal tunnel), lower back (two herniated disks) and PTSD as a result of the incident. Plaintiff Scott Ochsenhirt claimed loss of consortium.

Defendant claimed the strap used was adequate to hold 12,000 pounds. The boat and its trailer weighed approximately 6,000 pounds. Further, Defendant’s materials expert testified that the strap must have been damaged when the Plaintiffs directed Defendants to lower the boat into the rigging that Plaintiffs had erected on their own boat hauler or when Plaintiff directed Defendants to re-lift the boat and its trailer above the low-boy trailer.

The jury found unanimously for the Defendant, based largely on the fact that the boat had been suspended for 45 minutes prior to being lowered into the rigging. After re-lifting the boat and trailer at plaintiff’s direction, the strap snapped after a couple of minutes. Further, the jury found that had plaintiff Kathleen Ochsenhirt caught her hand under the boat when it fell, she would have suffered much more than carpal tunnel and a bruise to her hand.

Plaintiff Cano alleged that Zurich acted in bad faith when it denied his worker's compensation claim. He alleged that, by not accepting the claim, Zurich caused a delay in medical treatment, which left him totally and permanently disabled. The Zurich adjuster who denied the claim subsequently left Zurich's employment and was less than cooperative in preparing for trial. She testified that her only investigation of the claim prior to denial was some brief telephone conversations with plaintiff's employer on the day of the injury. The substance of those communications was disputed by the employer. Additionally, Zurich's expert found that some of the bases given by the claim adjuster for denial of the claim were not valid. The adjuster later accepted the claim after plaintiff contested the denial, but plaintiff alleged that he was still denied and delayed treatment after the claim was accepted. Plaintiff sued for bad faith emotional distress damages, pain and suffering, and punitive damages. Plaintiff's pre-trial demand was $2.9 million and was never reduced. After a two-and-one-half week trial, the jury deliberated for six hours and found for plaintiff in the amount of $275,000 as compensatory damages and $50,000 in punitive damages.

This was the first product liability action against TASER International to go to trial. The trial drew extensive media attention. Plaintiff Powers, a deputy sheriff, claimed to have sustained a T7 compression fracture when undergoing a sample exposure to a Taser M26 stun device as part of his on-the-job training. Plaintiff alleged that Defendant TASER International failed to provide adequate warnings and had concealed negative safety information regarding its product. Plaintiff asked for medical expenses, lost wages, impaired earning capacity, pain and suffering, and punitive damages. Plaintiffs’ pre-trial demand was for $3.4 million dollars. After a four-week trial, the jury deliberated for three hours and found for the defendant, 9-1.

Plaintiffs brought claims of medical malpractice, wrongful death and neglect under the Adult Protective Services (APS) statute. The decedent, Esther Fassl, was an 87-year-old woman whose family placed her at Golden Years, Inc., an assisted living facility, on June 21, 1998. She had a history of dementia, diabetes mellitus, hypothyroidism and degenerative joint disease. On September 26, 1998, decedent's physician ordered skilled nursing visits once a day for training related to diabetes management. Wound care for her ulcers was also added on December 24, 1998. An owner of Golden Years entered into a contract with Home Health Resources to provide daily skilled nursing visits. On May 29, 1999, skilled nursing visits were increased to twice a day due to the worsening of her decubitus ulcers. On June 14, 1999, decedent was admitted to Scottsdale Healthcare Osborn with a stage IV decubitus ulcer. She was transferred to hospice care, where she died on July 12, 1999.

Decedent was survived by her three children, who brought suit against Golden Years, Inc., and its owners, Paul McKirahan, Mark McKirahan and Tom Verrone; Dr. Robbi Borjeson; Home Health Resources, and two of its nurses who were independent contractors. Plaintiffs alleged defendants failed to report abuse and neglect of Esther Fassl, failed to notify family members, and permitted untrained individuals to care for decedent, which resulted in her death. Defendants argued that on at least four occasions the family was notified that decedent should be placed in a skilled nursing facility due to her increased needs, but the family refused to move her. After a 12-day trial, the jury deliberated for two hours. They awarded $0 damages as to the wrongful death claim. Thus, the result was the same as a defense verdict for our insured. The jury awarded $75,000 for neglect under the APS statute and found that decedent's daughter was 60% at fault; Golden Years 25% at fault and Golden Years owner Paul McKirahan 15% at fault (Tom Verrone and Mark McKirahan were dismissed on the second day of trial).

This was a retrial of a June 1, 2001, medical malpractice, wrongful death case. The decedent, male, age 41, a vice president of First Interstate Bank, was survived by his wife, two minor children and his 65-year-old father, all of whom brought suit for his wrongful death. In June, 1993, decedent was rendered a paraplegic following orthopedic and neurosurgery to repair and stabilize his spine, which had been injured 20 years earlier in an accident. Decedent was discharged from the hospital in September, and hospital records indicated that, following surgery, decedent was depressed, vulnerable and insecure.

Defendant Kimberly Quality Care was hired to provide home care. Defendant Coleman, a certified nurse's assistant, was assigned to the decedent. Plaintiffs alleged Defendants fell below the standard of care, in that Defendant Coleman admitted that, by January 1994, she and the decedent had been engaging in oral sexual activity. The sexual relationship continued for several months, and Defendant Coleman allegedly told others that she was planning to leave her husband and three children for the decedent. The decedent committed suicide by ingesting 120 Darvon tablets three weeks before his 20th wedding anniversary. After a seven-week trial, the jury was out for five-and-a-half hours and unanimously found for the Defendants.

This was a wrongful death case. In addition to alleging medical malpractice, plaintiffs alleged a violation of the Arizona Adult Protective Services Act (APSA) which, if proven, allows the decedent's estate to recover for his pain and suffering as well as attorney's fees. The decedent, a 66-year-old male, was admitted to Casa del Mar skilled nursing facility in September 2001. Eighteen months earlier, he had suffered a stroke that left him with left-sided hemiplegia. He was wheelchair bound and required a two- or three-person assist to/from bed to wheelchair. On April 8, 2002, decedent was found sitting on the pedals of his wheelchair. Because his left femur was fractured, he was transferred to the hospital for treatment. The next day an orthopedic surgeon performed surgery to repair the fracture. The decedent experienced respiratory problems following surgery and never awoke.

Decedent's wife of 29 years and twin daughters brought suit, alleging that the nursing facility failed to provide proper care and treatment and failed to supervise decedent for at least three hours on the night of his accident, resulting in the fall which required surgery and ultimately led to his death. On the fifth day of trial and before the close of plaintiff's case, the court granted the defense motion for directed verdict. The basis for the motion was plaintiff's failure to link alleged violations of the standard of care to causation.

This was the third Arizona case alleging a violation of the APSA to go to trial. The first resulted in a $10.5 million verdict for plaintiffs, and the second in a $250,000.00 verdict for plaintiffs. We were not involved in either of the first two cases. The Sunbridge case was the first nursing home defense victory in Arizona since the APSA went into effect.

This was a personal injury action for compensatory damages. Plaintiff Bollinger alleged that, while on a trip from Kingman, Arizona, to Show Low, Arizona, for the purpose of selling Kirby vacuum cleaners, non-party Kline fell asleep while driving and veered off the roadway, which caused the vehicle to roll over. Plaintiff alleged that non-party Kline was an agent and/or employee of Defendant Kirby. Plaintiff further alleged that, although Defendant required all sales personnel to sign a Kirby Independent Dealer Agreement, because Defendant had significant direct control over the sales staff, every member of the sales staff was an agent of Kirby and Kirby was therefore responsible for the negligence of its sales personnel.

Plaintiff Bollinger sustained a closed head injury from the accident, which resulted in post traumatic brain damage, a subarachnoid hemorrhage, a right occipital bone fracture plus a fractured spinal vertebra which rendered Plaintiff a quadriplegic. Defendant denied liability, advancing the defense that non-party Kline was an independent contractor and was not Defendant's employee and/or agent. After an eight-day trial, the jury deliberatedt for three hours before finding unanimously for the Defendant.

This was a medical malpractice action for personal injuries. Female Plaintiff Downey sought the services of the Defendant doctor for bilateral breast reduction, to be performed at Cobre Valley Hospital. Plaintiff alleged that the doctor fell below the standard of care in his diagnosis, treatment and surgical services and that he failed to obtain her informed consent. The Plaintiff further claimed that the staff of Defendant Cobre Valley Hospital fell below the standard of care in their treatment. Plaintiff alleged that, as a direct result of Defendant's negligence for improperly diagnosing necrotizing fasciitis, Defendants improperly removed all of her breast tissue, bilaterally. Plaintiff also claimed she sustained emotional trauma and disfigurement and will require future surgical procedures. After the 13-day trial, the jury deliberated for less than two hours before unanimously finding for the Defendants.

This was a medical malpractice action against a chiropractor for personal injuries. Plaintiff Pearlman sought the services of Defendant chiropractor Dal Molin. Plaintiff alleged that, while lying on a mechanical examination/treatment table, Defendant negligently activated the table. Activation of the table caused the lower part of the table to move up and down repeatedly, causing repeated flexion and extension of Plaintiff's legs. Plaintiff was transported to the hospital via ambulance.

Plaintiff alleged Defendant fell below the standard of care when he failed to ensure that the table's control switch pedal was placed under the table and could not be inadvertently activated. Plaintiff alleged she sustained a back injury and required hospitalization and two separate back surgeries. Plaintiff also alleged that her condition is permanent and will require ongoing treatment. A year prior to trial, Defendant offered a settlement of $15,000. Plaintiff demanded $500,000 throughout the pendency of the action. After the three-day trial, the jury deliberated for one hour and awarded Plaintiff $15,000 in compensatory damages.

This was a medical malpractice action for injuries to a fetus during delivery. Plaintiff parents alleged Defendant's nursing staff fell below the standard of care when they failed to recognize Plaintiff infant was in fetal distress and when they failed to notify a physician of Plaintiff infant's questionable fetal monitoring strips.

During Defendant's opening statements, the court granted Plaintiff's motion for mistrial, which resulted from a misunderstanding of the court's ruling on a motion in limine. The court acknowledged that its ruling was unclear and may have created confusion on the part of counsel. The case subsequently settled on favorable terms for Defendant.

This was a product liability suit for personal injuries and punitive damages. The liability and compensatory damage trial and the punitive damage trials were bifurcated. We tried the liability and compensatory damage case.

Female Plaintiff Davis is a partial quadriplegic who used an electric, motorized wheelchair manufactured by Defendant Invacare to ambulate. Plaintiff alleged that while resting in a reclining life chair a few feet from the wheelchair, which was charging, a fire started as a result of a loose connection. Plaintiff argued that a small fuse in the charging circuit would have prevented the fire and further argued that the battery box should have been made of a flame-retardant material. Defendant denied liability, advancing the defense that the fire was started by a match, candle, incense or other flame source that ignited combustibles on the right side of the wheelchair.

Because of the potential for punitive damages (there were allegations of numerous similar incidents resulting in death and serious injury), Plaintiff demanded $150 million to settle the case. The mediator wanted Defendant to pay $50 million to settle. Defendant made a $3 million offer prior to trial in an offer of judgment.

Because we were winning the trial and a defense verdict appeared probable, on the seventh day of trial we settled the case on a confidential basis on very favorable terms. Settlement was appropriate because of the potential for punitive damages in the second trial if the jury assessed any compensatory damages.

This wrongful death suit for punitive damages was a result of a head-on collision. An unemployed, female decedent, age 34, was survived by her mother, father and five minor children, ages seven to 13. Plaintiff Wagoner, the decedent's mother, brought suit for the decedent's wrongful death, on her own behalf and as personal representative of decedent's estate.

The Defendant driver, who was in the course and scope of his occupational duties as a serviceman for Defendant APS when operating Defendant's 30,000-pound utility truck, struck the decedent's car head-on, killing her and her two-year-old son. Plaintiff alleged that the Defendant driver had been drinking and smoking marijuana at his home on Sunday afternoon before he accepted a call from Defendant APS to drive to Young, Arizona, to fix a power outage. Plaintiff alleged that the Defendant driver was impaired, crossed the center line and caused the head-on collision. The Defendant driver's blood alcohol level was 0.13 at the time of the accident. After the accident, Defendant driver committed suicide rather than go to prison.

Defendant APS admitted liability for Plaintiff's compensatory damages but argued against a punitive damage award. Plaintiff made a pre-trial demand of $10 million and made an $8 million pre-trial offer of judgment. Defendant submitted a $3.4 million offer of judgment. We anticipated a total award in the $6 million to $8 million range. After the eight-day trial, the jury deliberated for three hours and awarded the Plaintiff $5,960,000 in compensatory damages (7-1) and $5 million punitive damages (6-2). The punitive damages award was a victory in view of Defendant's $2 billion financial statement, which was shown to the jury.

An appeal was filed because of improper conduct by Plaintiff's attorney (a former Arizona attorney general) and numerous errors by the court, the latter resulting in an inflated compensatory damage award. Attorneys were optimistic that the appeal would result in a new trial. It was settled, on favorable terms, prior to issuance of a decision by the Arizona Court of Appeals.

This was a product liability action for personal injuries. An elevator mishap involved a female plaintiff who sustained a broken arm and shoulder injuries. Plaintiffs alleged that, when she entered an elevator, it failed to align with the floor and its door closed prematurely onto Plaintiff. Plaintiff asked for medical expenses, lost wages and impaired earning capacity and requested $300,000 for pain and suffering. After the seven-day trial, the jury deliberated for two hours and unanimously found for Defendant.

This was a retrial of a February 1, 1999, medical malpractice, wrongful death case. The decedent, a 41-year-old male and a vice president of First Interstate Bank, was survived by his wife, two minor children and 65-year-old father, all of whom brought suit for his wrongful death.

In June 1993, decedent was rendered a paraplegic following orthopedic and neurosurgery to repair and stabilize his spine, which had been injured 20 years earlier in an accident. The decedent was discharged from the hospital in September, and hospital records indicated that, following surgery, the decedent was depressed, vulnerable and insecure. Kimberly Quality Care was hired to provide home care. Defendant Coleman, a certified nurse's assistant, was assigned to the decedent. Plaintiffs alleged Defendants fell below the standard of care, in that Defendant Coleman admitted that, by January 1994, she and the decedent had been engaging in oral sexual activity. The sexual relationship continued for several months, and Defendant Coleman allegedly told others that she was planning to leave her husband and three children for the decedent. The decedent committed suicide by ingesting 120 Darvon tablets three weeks before his 20th wedding anniversary.

After the-five week trial, the jury deliberated for two-and-a-half days before awarding Plaintiff wife $1 million compensatory damages, Plaintiff son $4.5 million compensatory damages, and Plaintiff daughter $4.5 million compensatory damages. They found Plaintiff wife to be 6% at fault, decedent to be 57% at fault, non-party Dr. Abbate to be 4% at fault, Defendant Coleman to be 18% at fault and Defendant Kimberly Quality Care to be 15% at fault.

In a 17-page opinion, the trial court granted a new trial based on improper conduct and argument by Plaintiffs' counsel. The new trial was affirmed on appeal and Plaintiffs' counsel was severely reprimanded.

This was a transportation negligence action for personal injuries. Female Plaintiff Wilson alleged she was rear-ended by Defendant's driver, in the course and scope of his employment, driving Defendant's tractor-trailer. Plaintiff alleged that her vehicle was propelled into and over a power pole. Defendant was found liable on summary judgment. Plaintiff alleged she sustained herniated cervical and lumbar disks and made a pre-trial demand of $1 million. Defendant offered $250,000. During the second day of trial, the matter settled for $450,750. This was less than our pre-trial evaluation, which the company acknowledged was accurate.

This was a medical malpractice suit for personal injuries. The case was tried on comparative fault, with Plaintiff Lee alleging that Defendant Rinehart fell below the standard of care when he failed to recognize that Plaintiff was developing open angle glaucoma and failed to refer Plaintiff to an ophthalmologist. Defendant denied falling below the standard of care and argued that Plaintiff had numerous systemic illnesses (such as asthma, chronic pulmonary disease, polymyositis and depression), was an ex-smoker, missed appointments, and failed to use eye drops, which contributed to her deteriorated vision. Defendant further argued that Plaintiff's blindness was due to ocular ischemia, not just glaucoma. Plaintiff made a pre-trial demand of $600,000 and Defendant offered $265,000. After a five-day trial, the jury deliberated for two-plus hours before unanimously awarding Plaintiff $491,420 compensatory damages. The jury found the Plaintiff to be 50% at fault, thus reducing the award to $245,710, which was below our pre-trial offer.

This was a transportation negligence suit for wrongful death. A bus/auto mishap resulted in the death of a male student attending Deer Valley School District. The decedent, age 16, was survived by his non-custodial father, who brought suit for wrongful death. The decedent's mother was operating an automobile in which the decedent and the decedent's grandmother were passengers. Plaintiff alleged Defendant Laidlaw Transit's bus driver, in the course and scope of his employment with Defendant school district, negligently ran a stop sign and T-boned Plaintiff's vehicle, killing the decedent and the Plaintiff's grandmother. Plaintiff also alleged that the Defendant's driver suffered from sleep apnea and that he was asleep at the wheel when his bus ran the stop sign.

The wrongful death of grandmother and the personal injury claim of the mother were settled before trial. Defendants admitted liability. Prior to trial, Plaintiff demanded $2 million to settle the case. Defendant offered $200,000 with the understanding that the case could settle for more if Plaintiff reduced his $2 million demand. After a two-day trial, the jury deliberated for two hours before unanimously awarding Plaintiff $1 million compensatory damages. This was exactly the number we predicted a year prior to trial and which the company reserved.

This was a dental malpractice case for personal injuries. Female Plaintiff alleged Defendant dentist, while removing an impacted lower wisdom tooth, negligently caused injury to her lingual nerve. Defendant argued that lingual nerve injury is a known risk and can happen in the absence of malpractice. Plaintiff made a pre-trial demand of $100,000, and Defendant offered $15,000. After the four-day trial, the jury deliberated for just over an hour before unanimously finding for Defendant.

This was a medical malpractice, wrongful death case. The decedent, a 41-year-old male and a vice president of First Interstate Bank, was survived by his wife, two minor children and 65-year-old father, all of whom brought suit for his wrongful death.

In June 1993, decedent was rendered a paraplegic following orthopedic and neurosurgery to repair and stabilize his spine, which had been injured 20 years earlier in an accident. The decedent was discharged from the hospital in September, and hospital records indicated that, following surgery, the decedent was depressed, vulnerable and insecure. Kimberly Quality Care was hired to provide home care. Defendant Coleman, a certified nurse's assistant, was assigned to the decedent. Plaintiffs alleged Defendants fell below the standard of care, in that Defendant Coleman admitted that, by January 1994, she and the decedent had been engaging in oral sexual activity. The sexual relationship continued for several months, and Defendant Coleman allegedly told others that she was planning to leave her husband and three children for the decedent. The decedent committed suicide by ingesting 120 Darvon tablets three weeks before his 20th wedding anniversary.

On the eleventh day of trial, at the close of Plaintiff's case in chief, the court entered a directed verdict for Defendants on the issue of duty/causation. Jury was excused.

This was a negligence/product liability suit for personal injuries. The case was tried on comparative fault. Plaintiff, a railroad bridge builder, was in an elevator on the second floor of the Arizona Center. Plaintiff alleged Arizona Center's security guard asked occupants to step out of the elevator because it was allegedly overloaded. Plaintiff alleged that, as he stepped out of the elevator, with one foot on the second floor and the other foot on the sill of the second floor, the elevator dropped and the edge of the cab ceiling struck Plaintiff's heel. Plaintiff claimed that, as a result, he fell backward into the elevator shaft, fell one floor and landed on top of the elevator.

Plaintiff settled with Arizona Center's Carrier, Cigna, for $160,000, prior to trial. Plaintiff alleged that Montgomery KONE, which installed and serviced the elevator, was negligent in its maintenance of the elevator's brakes. Defendant denied liability, advancing the defense of no negligence. Plaintiff made a pre-trial demand of $400,000. After the three-day trial, the jury deliberated for one hour and awarded $200,000. The jury found Plaintiff 1% at fault, found non-party Arizona Center to be 66% at fault, and found Defendant to be 33% at fault. The verdict amount and KONE's percentage of fault were consistent with our pre-trial evaluation.

This was a product liability action for personal injuries. Female Plaintiff, a dental hygienist, alleged that the dental instrument sterilizer manufactured by Defendant was defective, in that its door opened under pressure, causing formaldehyde vapors to escape. Plaintiff also claimed that the sterilizer's venting hose was kinked. Plaintiff alleged she sustained brain damage from the vapors, resulting in neurological deficits, plus lung damage with secondary fibromyalgia and exacerbation of her preexistent psychological condition. Plaintiff made a pre-trial demand of $300,000 and defendant offered $50,000. The trial lasted 16 days. By stipulation, nine jurors deliberated for 12 hours over a two-day period. The jury found for the defendant, 7-2.

2003-2008. Renaud Cook Drury Mesaros, PA

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602-307-9900
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