Jury Trial Overview, 1998-Present
A propane-fueled flash fire in the Plaintiff’s
trailer home led to a product liability claim. Plaintiffs claimed that a
catalytic heater, manufactured by Mepamsa and sold by Camping World, was
defective and unreasonably dangerous because it did not have an inlet filter
in its propane supply line upstream from a safety control valve. Plaintiffs
claimed that sediment entered the heater and prevented the safety control
valve from closing completely, resulting in the escape of unburned propane
into their trailer. There was a subsequent flash fire when Plaintiff Raymond
Greenwood attempted to start the heater. Defendants denied that the heater
was defective and explained that the fire was caused by the improper
installation of a pressure regulator just three days before the fire.
Plaintiffs suffered severe burn injuries that
caused significant scarring and disfigurement. Plaintiff Raymond Greenwood
suffered third-degree burns over 51% of his body and spent three months in a
coma and in excess of six months in a burn unit. Mr. Greenwood underwent
numerous skin grafts and subsequent scar release surgeries. It is expected
that he will require multiple future surgeries. Mr. Greenwood’s past medical
expenses amounted to $2.3 million, and Plaintiffs claimed $3.2 million to
$4.45 million for future medical expenses.
Plaintiff Tasha Greenwood suffered third-degree
burns to her face, neck, arms and hands. She spent 26 days in the hospital,
with 10 days on a mechanical ventilator. She underwent multiple skin grafts,
and it is anticipated that she will have additional surgeries to her face
and arm. Mrs. Greenwood’s past medical expenses amounted to $509,000, and
Plaintiffs claimed $1 million to $1.3 million in future medical expenses.
Plaintiff Marita Greenwood, age 3, suffered
second-degree burns to her forehead and both cheeks. She incurred $34, 000
in medical expenses and was estimated that she will required future
surgeries and future medical expenses of $44,000 to $60,000.
Plaintiff Arizona Greenwood, 11 months old,
suffered second-degree burns to her face and right arm. She incurred past
medical expenses of $33,000. It was claimed that both Marita and Arizona
suffered permanent disfigurement and scarring to their face.
Prior to trial, Plaintiffs served offers of
judgment of $28 million to all defendants and $18 million separately to
Mepamsa. In the weeks leading up to trial, Plaintiffs’ attorney responded to
settlement offers by stating that he was not interested in discussing a
compromise unless it was “in the several million dollar range.”
The trial lasted ten days. In opening
statement, Plaintiffs requested $15 million from the jury. The jury returned a unanimous defense verdict
after one hour of deliberation.
This was a product liability and premises
liability claim arising out of an incident at an L.A. Fitness gym. Plaintiff
(Pellegrini) claimed he suffered a reverse fall from a piece of lower back
exercise equipment. Plaintiff alleged that the lower back exercise machine
that he was using collapsed, causing him to fall off the back and land on
his head. He was temporarily rendered a quadriplegic and, at the time of
trial, had healed to the point that he was tetraparetic (marked lack of
control and weakness in all four extremities). Plaintiff was 60 years old at
the time of the incident. He earned over $100,000 a year working as a
computer hardware technician.
Following an unsuccessful pre-trial mediation
in which plaintiffs demanded $12 million from the defendants, L.A. Fitness
made an offer of judgment for $100,000.
At trial, Plaintiff asserted premises and
product liability claims against L.A. Fitness and product liability claims
against the co-defendant manufacturer, Brunswick. Plaintiff asserted that
L.A. Fitness failed to properly repair and maintain the subject
back-extension machine. The evidence proved that L.A. Fitness did in fact
assemble the subject machine backwards. The manufacturer did not provide any
instructions with the subject machine.
Plaintiffs presented evidence in the form of a
life care plan and lost wages testimony suggesting to the jury that his
special damages were in excess of $1.5 million. Plaintiff’s wife also made a
claim of loss of consortium. Plaintiffs did not ask for a specified amount
from the jury, which suggested that, because of the catastrophic nature of
the injury and the permanence of the injuries, an award many times more than
the special damages was in order.
L.A. Fitness successfully argued, with the
assistance of biomechanical and mechanical engineers, that user error was
the only cause of Plaintiff’s injuries. In a 30-minute deliberation at the
close of the 16-day jury trial, the jury rendered a unanimous defense
verdict for both defendants, L.A. Fitness and Brunswick.
A sanction was ultimately ordered against
Plaintiff, pursuant to Rule 68 of Arizona Rules of Civil Procedure, and
Plaintiff is liable to defendant, L.A. Fitness for $137,000 (double taxable
costs and reasonable expert fees).
This was a medical malpractice and wrongful
death case brought by Plaintiffs Mehdi Maghsoudlou and Farahnaz Amani
against The Meadows of Wickenburg, an addiction treatment facility.
Plaintiffs’ adult son, Parham, voluntarily admitted himself to The Meadows
for treatment of drug, alcohol and gambling addictions.
Three weeks into treatment, Parham twice left
the grounds of the facility without permission. (Upon admission to the
facility, all patients sign a form acknowledging that leaving The Meadows
without staff approval may be grounds for immediate discharge.) While The
Meadows encouraged him to complete his treatment at another facility, and
even made arrangements for his transfer, Parham chose to leave the facility
and asked to be taken to the airport so that he could meet family members
who were arriving later that day from Sweden to participate in The Meadows’
“Family Week,” a therapeutic event. Instead of picking up his family, Parham
rented a car, drove 215 miles north of Phoenix, left his vehicle at the side
of the road and walked into the desert. Three days later, Parham’s unclothed
body was found. A message made out of twigs was found close to the body. The
parties stipulated that the message read, in part, “I Parham Maghs made
ammnds 4 lying.” It was determined that Parham’s death was due to exposure
to the elements.
Plaintiffs sued The Meadows, alleging that The
Meadows was negligent for permitting Parham to leave before they arrived at
the facility for Family Week. Prior to trial, Plaintiffs made a $500,000
offer of judgment.
At the end of the trial, the case went to the
jury at noon on a Friday. By the end of that day, the last jury vote was 7-3
for a defense verdict; the jury returned on Monday to continue
deliberations. Ultimately, the jury returned a verdict in favor of
plaintiffs and awarded $250,000 each to Parham’s father and mother. However,
the jury apportioned 50% of the fault to Parham and 50% of the fault to The
Meadows, thereby reducing to $125,000 the amount of damages awarded to each
of the two Plaintiffs.
This was a medical malpractice case brought by
Plaintiff Karen Massey against Floyd Miller, DPM and his former practice,
Arizona Foot Surgeons. Plaintiff initially saw Dr. Miller in September 2004
for a bunion deformity on her left foot. Plaintiff ultimately decided to
have a bunionectomy surgery with Dr. Miller using an osteotomy, which was
successfully performed on November 17, 2004. Plaintiff followed up with Dr.
Miller after surgery on November 23, 2004, and December 3, 2004, and her
foot was healing well with no clinical signs of infection. Thereafter, on
December 8, 2004, Plaintiff contacted Dr. Miller's office and stated that
the surgical site had dehisced, or opened up, during the night. Plaintiff
went into Dr. Miller's office the next day and saw another physician, Dr.
Daniel Bangart, who was not a party to the lawsuit. Dr. Bangart noted the
dehiscence but did not believe that Plaintiff had an infection at that time.
Dr. Bangart cultured the wound and put Plaintiff on Omnicef, a broad
spectrum antibiotic, for possible infection.
Plaintiff continued to follow up with Dr.
Miller, and after Dr. Miller received the final culture results on December
16, 2004, and determined that Plaintiff had an infection, he placed her on
an additional antibiotic, Clindamycin. As the surgical site continued to
dehisce, Dr. Miller took Plaintiff back for a second surgery to perform a
thorough debridement under anesthesia and a removal of the surgical screw
that was holding Plaintiff's osteotomy in place. Dr. Miller decided to refer
Plaintiff to an infectious disease specialist, Amardeep Sodhi, M.D., by the
end of December 2004. Dr. Miller also ordered appropriate tests to diagnose
possible osteomyelitis (bone infection) in Plaintiff's foot. Plaintiff first
saw Dr. Sodhi on January 6, 2005, and he placed her on IV Rocephin for
osteomyelitis for six weeks. According to Dr. Sodhi, Plaintiff's foot was
completely healed by March 29, 2005.
There was evidence in the case that Plaintiff
was a long-time smoker and may have been smoking during the pre- and
post-operative periods, which can cause wound dehiscence. There was also
evidence that Plaintiff went to work on December 4, the day after Dr. Miller
removed her sutures, at a job that required a lot of walking and standing.
Plaintiff claimed that Dr. Miller violated the applicable standard of care
for a reasonable podiatrist in Arizona in a number of respects, through the
testimony of her expert from Boston, Massachusetts, Peter Bregman, DPM.
Plaintiff claimed that Dr. Miller's use of a small dose of Kenalog 10, a
long-acting steroid, in the original surgery of November 17, 2004, was the
cause of the dehiscence of the surgical site and prevented the wound from
healing appropriately. Plaintiff also criticized Dr. Miller's use of Omnicef
and Clindamycin, and argued that Dr. Miller should have put her on IV
antibiotics as soon as he determined there was in infection in her foot.
Plaintiff also claimed that Dr. Miller should have referred her to an
infectious disease specialist sooner than she saw Dr. Sodhi. Plaintiff
claims that she can not wear regular shoes, and that she has limited range
of motion in her foot due to extensive scar tissue build up from delayed
healing. Plaintiff also claims nerve entrapment and ongoing pain from the
delayed healing of her infection.
Defendants presented evidence that Dr. Miller
complied with the applicable standard of care in all respects. Defendant's
expert, Glenn Silverstein, DPM, told the jury that Dr. Miller's use of oral
antibiotics was completely appropriate based on the culture results, and
that Dr. Miller was never required by the standard of care to refer
Plaintiff to an infectious disease specialist. Dr. Silverstein also
disagreed with Dr. Bregman that Plaintiff should have been placed on IV
antibiotics sooner, and disagreed that the small dose of Kenalog 10 given
intra-operatively during surgery was the cause of dehiscence and slow
healing. Dr. Miller also testified in support of his own standard of care.
Plaintiff did not request a specific amount in
damages during closing argument but claimed medical expenses of $61,000,
lost wages in the range of $50,000 to $100,000, as well as pain and
suffering and future medical expenses. The nine-member jury deliberated for less
than one hour and returned with a unanimous verdict in favor of Dr. Miller.
This matter stemmed from was a wrongful death
and elder abuse case brought by the family of the decedent, Kaye York,
against Life Care Centers of America, d/b/a Life Care Center of Paradise
Valley.
Ms. York suffered from severe hypoglycemia.
Plaintiffs alleged that, over a three-month period, Life Care’s nursing
staff breached the standard of care in a number of ways, including failure
to properly monitor and treat Ms. York’s condition, causing Ms. York’s
death.
Dedicated Health Professionals is a nursing
registry/agency that provided temporary nursing staff to Life Care. When
Life Care was sued by Ms. York’s family, Life Care in turn sued Dedicated
Health Professionals. On the eve of trial, the York family settled with Life
Care for $1.5 million, and Life Care proceeded against Dedicated, seeking
full reimbursement for the amount that Life Care paid to Plaintiffs.
Although Ms. York was a resident at Life Care
for three months, Dedicated provided a nurse only on the night Ms. York
died. Life Care alleged that the Dedicated nurse was not properly qualified,
evidenced by his failure to test Ms. York’s blood sugar levels. Life Care
alleged that, had he tested her blood sugar levels, he would have found that
they were dangerously low and could have alerted her physician. Dedicated
argued that Life Care did not present sufficient expert testimony to show
that its nurse was not properly qualified and that he should have performed
such testing or that the failure to perform glucose testing was causally
related to Ms. York’s death.
At the close of Life Care’s case, Dedicated
moved for a directed verdict. Initially the judge granted the motion, at
least in part, but allowed Life Care to reopen its case. Knowing this would
be futile, Life Care accepted a $20,000 pretrial offer made by Dedicated.
A unanimous defense
verdict in the retrial of a trucking accident death case, tried in 2003 by
another law firm. Plaintiff’s attorney asked the jury for $20 million to $80
million in punitive damages. Before trial, Plaintiff demanded $15 million to
settle, to which the defense countered with a settlement offer of $1.8
million.
This was a wrongful death claim, stemming from
a bus-bicycle accident, that resulted in a defense verdict in Maricopa
County Superior Court.
The decedent in this case was a 33-year-old
male working in a family bakery at the time of his death. (Plaintiff brought
the suit on behalf of the decedent's minor children.) Plaintiff
alleged that, while making a right turn, a Laidlaw bus driver failed to
yield the right-of-way to the decedent bicyclist when the bicyclist rode
through the crosswalk.
Expert and accident reconstructionist Lamont
Skousen testified that the bus was traveling in excess of 9 mph at the point
of impact, and Plaintiff contended that it was Laidlaw policy that all
turns should be made at a speed of 5 mph or less.
Defendants Laidlaw maintained that, before
proceeding with her turn, the bus driver waited to see if the decedent
bicyclist was going to cross the street. When he did not give any indication
that he was going to cross, the bus driver proceeded with her right turn on
a green light. The decedent bicyclist ran into the rear of the bus while the
bus was turning.
In settlement negotiations, Plaintiff had
demanded $1 million, while Laidlaw offered to settle for $50,000. After
deliberating for approximately one hour, the jury found, by a 7-1 vote, for
Defendants Laidlaw.
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.
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Case:
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Nordic Boats
adv.
Kathleen Ochsenhirt & Scott Ochsenhirt |
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Retained by: |
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AIG |
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Citation: |
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CV2005-001193 |
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Trial Attorney: |
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William W. Drury |
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Date: |
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May 22,
2007 |
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 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 Defendants, 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.
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Case: |
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TASER International adv. Sam Powers |
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Retained by: |
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Investors
Underwriting Company |
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Citation: |
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CV2003-013457
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Trial Attorney: |
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William W. Drury |
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Date: |
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December
22, 2005 |
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 Defendants, 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 Defendants.
This was a personal injury-medical malpractice case. The minor Plaintiff was
Cooper Stephens, now age 8. While pregnant with Cooper, his mother, Chelby
Stephens, was advised that her vaginal canal was colonized with Group B
streptococcus. She was given a card that stated she had cultured positive and
was instructed that, after she went into labor and arrived at the hospital, she
should present the card to the nursing staff. The parents alleged that, although
health care providers knew that Mrs. Stephens was infected and that the
transmission of the Group B streptococcal infection to her son could be
disastrous, the providers failed to administer antibiotics to her and delayed
treatment to her son for seven hours after birth. Plaintiffs alleged that the
hospital’s nursing staff did not meet the standard of care. The parents further
alleged that, as a result of the hospital’s nursing staff negligence, Cooper
developed pneumonia, a pneumothorax, meningitis, and brain damage, with residual
encephalopathy, regulatory disorder, obsessive-compulsive disorder, oppositional
defiant disorder, attention deficit / hyperactivity disorder, sensory
integration disorder, impulsivity, social disinhibition, aggression, anxiety and
depression. The parents also claimed that Cooper will require ongoing speech and
occupational therapy plus lifelong care. After a 20-day trial, ten jurors
deliberated and awarded Cooper Stephens $3.63 million in compensatory damages,
Mrs. Stephens $1.495 million in compensatory damages, and Mr. Stephens $700,000
in compensatory damages.
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Case:
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Sunbridge d/b/a Casa del Mar
Rehabilitation
adv. Brauch |
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Retained by: |
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AIG |
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Citation: |
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CV2002-021648 |
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Trial Attorney: |
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William W. Drury |
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Date: |
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May 3,
2004 |
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.
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Case: |
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The
Kirby Company adv. Bollinger |
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Retained by: |
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The Kirby
Company |
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Citation: |
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CV2002-007172 |
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Trial Attorney: |
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William W. Drury |
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Date: |
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November
17, 2003 |
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 deliberated for three hours
before finding unanimously for Defendants.
This was a medical malpractice action for personal injuries. Female Plaintiff
Downey sought the services of Defendants 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. 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 Defendants.
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Case: |
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Dal Molin, D.C. adv. Pearlman |
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Retained by: |
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NCMIC |
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Citation: |
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CV2000-080 |
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Trial Attorney: |
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William W. Drury |
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Date: |
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November
21, 2002 |
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.
Defendants 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 Defendants 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 Defendants driver was impaired, crossed the center line and
caused the head-on collision. Defendants 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 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.
|
Case: |
|
Triad Transportation adv. Wilson |
|
Retained by: |
|
John
Deere Insurance |
|
Citation: |
|
CV97-07557 |
|
Trial Attorney: |
|
William W. Drury |
|
Date: |
|
October
19, 1999 |
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.
|
Case: |
|
Rinehart, OD adv. Lee |
|
Retained by: |
|
Interstate Insurance Group |
|
Citation: |
|
CV98-05239 |
|
Trial Attorney: |
|
William W. Drury |
|
Date: |
|
October
1, 1999 |
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 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 Plaintiff's
grandmother. Plaintiff also alleged that Defendants'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.
|
Case: |
|
Duncan, DDS/Dental Net, Inc. adv. Valencia |
|
Retained by: |
|
Frontier Insurance
Group |
|
Citation: |
|
CV97-20758 |
|
Trial Attorney: |
|
William W. Drury |
|
Date: |
|
April 2,
1999 |
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.
|
Case: |
|
MDT Biologic Company adv. Lovitch |
|
Retained by: |
|
MEDMARC |
|
Citation: |
|
CV95-10454 |
|
Trial Attorney: |
|
William W. Drury |
|
Date: |
|
April
20, 1998 |
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 Defendants, 7-2.
|
