Jones, Skelton & Hochuli, P.L.C. (Phoenix, Arizona)

On January 31, 2004, after a 3 week Arizona federal district court trial, a 10 member jury rejected Plaintiff’s claim of sexual harassment and awarded only $16,100 as compensatory damages on a retaliation claim despite being asked to return a verdict of $750,000.00 or more.  Plaintiff alleged that she was sexually harassed by a special assistant at the Maricopa County Attorneys Office on three separate occasions; once alone in an elevator, the second when he told her he “could just kiss her” and the third when he leered at her legs and “undressed her with his eyes”.  The jury rejected Plaintiff’s sexual harassment claim.

Plaintiff also claimed that she was retaliated against for having filed the sexual harassment complaint alleging that her hours were overly scrutinized; her jobs and tasks were reassigned and questions were raised about the quality of her work.  Over the objections of the County, the action was presented to the jury as a “mixed-motive” case as opposed to a “pretext” case which significantly lessening Plaintiff’s burden of proof.  Faced with Plaintiff’s argument that she needed only show only “one iota of retaliatory thought process” by County administrator to prove retaliation, the jury returned a verdict on the claim of retaliation.  A Motion for New Trial has been filed challenging the Court’s decision to give a mixed motive instruction and refusing to give a business judgment instruction.  It is anticipated that this matter will eventually lead to an appeal where the Ninth Circuit will be asked to determine whether Desert Palace v. Costa, 539 U.S. 90 (2003) radically changed the playing field for parties in discrimination/retaliation cases. 

The lawsuit was tried by Georgia A. Staton, partner of Jones, Skelton and Hochuli, P.L.C..  and Katherine E. Baker of Green and Baker. 

Hall Booth Smith & Slover, P.C. (Atlanta, Georgia)

On November 7, 2003, a jury of the Superior Court of Houston County, Georgia rendered a defense verdict in favor of the Houston County Hospital Authority (“Authority”) and against pathologists Dr. James Q. Whitaker and Dr. Charles P. Maurizi in an alleged wrongful termination of medical staff privileges case.   Along with the defense verdict on Plaintiffs’ claim, the jury awarded attorneys’ fees against Dr. Whitaker in favor of the Authority in the amount of $146,000 based on the claim that Dr. Whitaker had acted in bad faith, been stubbornly litigious, and caused the Authority unnecessary trouble and expense.  The jury also imposed punitive damages against Dr. Whitaker in favor of the Authority in the amount of $250,000.

Representing the Houston County Hospital Authority were Rush S. Smith, Jr. and Paul R. Koster of the Atlanta, Georgia firm of Hall, Booth, Smith & Slover, P.C. and Michael G. Gray of the Perry, Georgia firm of Walker, Hulbert, Gray, Byrd & Christy, LLP. 

Klinedinst attorneys Kevin Gramling and Steve Pratt obtained a defense verdict in what is believed to be the first wrongful death mold trial in the United States.  Plaintiff Dayton sued Defendant Highlands Mobile Home Estates for negligence, fraud, wrongful death and breach of contract.   During the course of the trial, Plaintiff asked the jury for over $7,500,000 in medical costs and pain and suffering.

Defendant sold Plaintiff a mobile home after performing over $10,000 worth of repairs. Plaintiff and her grandson moved into the mobile home and claimed that mold in the home made them sick. Among other ailments, Plaintiffs claimed to suffer respiratory ailments, immune suppression and chronic fatigue. The plaintiffs attributed their illness to a potentially toxic mold, stachybotrys.  Plaintiff vacated the home and died 18 months later. Plaintiff's pathologist claimed that an overwhelming fungal infection in Plaintiff's lungs contributed to her death.

During trial, Klinedinst attorneys representing Defendant presented evidence that the mobile home was not infested with mold, and that the indoor mold levels were consistent with outdoor mold levels. They further demonstrated that the defendants were reasonable in their repair efforts to the mobile home, both before and after the plaintiffs moved in.

The jury trial lasted a total of eight weeks, and involved numerous experts and witnesses.  After closing arguments, jurors found for Defendant 12-0 on negligence, fraud and wrongful death. Jurors found 10-2 for Plaintiff on breach of contract, but did not award any damages.

Carr Allison Pugh Howard Oliver & Sisson, P.A. (Birmingham, Alabama)

An Alabama jury returned a defense verdict in an employment retaliation case in favor of a large restaurant chain represented by Carr Allison attorneys Russ Allison and Ryan Brake.  The plaintiff claimed she was terminated in retaliation for making a workers’ compensation claim and asked the jury for $200,000 in compensatory damages for lost wages and mental anguish, and an additional $1,000,000 in punitive damages.  The plaintiff was employed as a restaurant meat carver when she was injured on the job on October 2, 2000.  The work accident resulted in cervical fusion surgery for the employee, and the employee was off work from October of 2000 through February 2002. 

On a discovery request from the plaintiff, the court compelled the defendant to release the case management notepad from the third party administrator.  The notepad included entries not only regarding the medical and disability case management of the adjusters, but also of telephone conversations with representatives of the employer.  Much of the notepad was blacked out pursuant to the judge's order regarding privileged and confidential matters.  However, the portions of the notepad not blacked out indicated that the employer had considered terminating the employer for legitimate reasons prior to her return to work from the injury.  The notepad also indicated that the employer began having performance problems with the employee immediately after her return to work, and the employer was considering terminating the employee.  The notepad also included some entries regarding delays in recommended medical treatment and payment of temporary total disability benefits.  Although the delays were arguably justifiable under the Workers' Compensation Act, the plaintiff argued the delays were evidence of mistreatment of the employee and showed an intent to terminate the employee.

The plaintiff also was allowed to discover evidence regarding the company's profits and losses.  These company financial records included documents showing that the employer kept track of its worst stores for workers' compensation claims, and that the district where the plaintiff worked was on the top ten worst list for claims at the time of her claim.  The plaintiff argued these records evidenced a motive or intent on managers' behalf to terminate the employee to get their store off the list. 

When the employee did return to work upon release from her physician in February of 2002, the company provided light duty work within her restrictions.  However management immediately began having problems with the employee refusing to perform her job duties.  Specifically, the plaintiff was assigned the job of restaurant greeter, but was refusing to smile, have a positive attitude and greet customers.  After several meetings with her manager regarding these problems, the plaintiff flat refused to work, and was terminated.  The manager who terminated the employee was not working at the store when the plaintiff had her original injury in October of 2000.

The defense of the case was to focus on the "solely" standard used by the legislature in enacting the retaliatory discharge statute.  Russ and Ryan argued that the actions of the third party administrator were not relevant to the issue of whether the plaintiff was terminated solely in retaliation for making the claim.   They further argued that the company's profit and loss statement was also not probative on the jury's determination as to the reason for the plaintiff's discharge.  The defense focused on the actions of the plaintiff in the few days after her return to work and the problems management had with her job performance.  Further, the plaintiff's social security records were admitted into evidence showing she was approved for social security the month before her return to light duty, and that her social security benefit was higher than her pre-injury earnings with the employer.  This evidence indicated that the plaintiff had her own intent or motive, i.e., to remain on disability benefits and not to return to work. The jury deliberated for about three hours before returning a verdict in favor of the defendant.

Wicker Smith's most recent case involved a 4 week trial in West Palm Beach, Florida by attorneys Tony McNicholas and Adam Rhys.  The Plaintiff's attorney was Bob Montgomery (dubbed “superlawyer” of the tobacco litigation).  A defense verdict was rendered by the jury in favor of Wicker Smith’s client on April 1, 2004. 

This was a “Wrongful Death” case in which it was alleged that the decedent, a 38 year old married mother of 2 minor children, suffered a 6 hour delay in diagnosis of a fatal bleed in the recovery room. Mr. McNicholas and Mr. Rhys represented the hospital against whom the following claims were made:  (1) that the patient had asked to see a surgeon regarding some questions she had before the procedure and the nurses failed to honor that request; (2) that there was no “History and Physical” in the chart in violation of the hospital’s policies and procedures which would have alerted the subsequent treating physicians to the fact that the patient had a tubal ligation and therefore any bleed could not have been caused by an ectopic pregnancy; (3) that a hospital nurse had given Neo-Synephrine (a vasopressor which accelerated the bleed) without a physician’s order; (4) that the hemoglobin and hematocrit which identified significant blood loss took 1 hour to complete; (5) that a chest x-ray that ultimately diagnosed the bleed took 55 minutes to complete: and (6) that when the supervising anesthesiologist was in an emergency procedure for close to 2 hours, no nurse invoked the chain of command to get a physician to the bedside. 

Mr. Montgomery requested the jury award 30 million dollars in damages against the hospital and 6 physicians.  The jury returned a verdict in favor of the hospital and 4 physicians and against an anesthesiologist and a surgeon for 3 million dollars.

Ahmuty, Demers & McManus (Albertson, New York)

Patrick J. Cooney of Ahmuty, Demers & McManus recently tried a case on behalf of Waldorf Carting Company in the United States District Court for the Southern District of New York.  The plaintiff, a 29 year old yoga instructor, claimed the rear wheels of the 40 yard trash compactor ran his legs over when he jumped on the sidewalk to avoid a collision with the truck.  The plaintiff claimed that prior to the accident, the truck was driving erratically and at a high rate of speed.  He further claimed that the truck cut the corner short when it was making a right turn, riding up on the sidewalk and causing injuries.

The plaintiff sustained a right femur fracture and bimallealor ankle fracture both requiring ORIF.  Plaintiff was able to circumstantially establish that the carting truck belonged to Waldorf through introduction of E-Z pass records, time sheets and route sheets.

While the plaintiff sustained significant injuries, Pat Cooney was able to argue to the jury that plaintiff made a very good recovery and was able to return to his pre-accident activities. Plaintiff made a $800,000 pre-trial demand.  A $50,000 pre-trial offer was made.  During trial, the demand was reduced to $550,000 and the offer increased to $150,000.  Waldorf's insurance carrier would have paid $300,000 to $350,000 to settle the case.

The jury returned the verdict awarding the plaintiff a total of $200,000 for pain and suffering and past and future lost earnings which was reduced by 45 percent to reflect plaintiff's comparative negligence.  The net verdict was $110,000, $40,000 less than the last offer and significantly less than what the carrier was willing to pay to settle.

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