O'Hagan, Smith & Amundsen, L.L.C. (Chicago, Illinois)

The Illinois Appellate Court granted Marcie Thorp appeal seeking reversal of a $5.3 million dollar verdict in a negligence case stemming from the death of a 12-year-old girl. In her appeal, she argued that a former Cook County Circuit Court judge should not have allowed a doctor’s previously undisclosed opinions into testimony because they resulted in prejudice and convinced the jury to render a $5.3 million judgment against a local hospital. The First District Appellate Court reversed the verdict and remanded the medical malpractice case to the Circuit Court for a retrial. This decision marks the third time the case will be heard by a jury.

In April 1991 the hospital treated the plaintiff for several weeks for a severe injury to her windpipe. She was released but then returned to the hospital with difficulty breathing. The plaintiff argued at trial that surgical residents failed to properly manage the plaintiff’s airway, allowed her condition to deteriorate overnight, and attempted to intubate her at bedside with inexperienced personnel rather than in an operating room. The plaintiff was deprived of oxygen for 15 minutes, causing irreversible brain damage and eventual death.

During trial, the plaintiff’s expert witness, a specialist in the care of critically ill or injured children, disclosed a new opinion, criticizing the hospital staff for failing to supervise the residents who treated the plaintiff. Defense counsel moved for a mistrial, arguing that the doctor did not make such statements during depositions and violated Supreme Court Rule 213. This evidentiary rule limits testimony that expert witnesses can offer. The judge denied the defense’s motion for a mistrial and ordered plaintiff’s counsel to retract the doctor’s statements. During the trial, the attorney failed to retract the statement. The judge attempted to correct the attorney’s failure. In front of the jury, the judge asked the expert witness whether she had previously criticized the hospital staff for failing to supervise its residents during the plaintiff’s treatment. The plaintiff’s medical expert agreed that she had not previously offered that testimony.

The Illinois Appellate Court, in the published opinion (2003 Ill. App. LEXIS 1427) (1st Dist.)), held that the doctor’s new opinions offered the jury a reason to find that the defendant was negligent. Rather than resolve the prejudice of the expert’s statements, the appellate court determined: “This question solidified rather than remedied the Rule 213(g) violation, because it verified that [the doctor] presented new, undisclosed opinions...Significantly, [the doctor’s] undisclosed opinions provided the jury with a new negligence theory, namely, the defendant’s failure to recognize the escalation in the plaintiff’s symptoms due to lack of proper supervision caused the difficulty that occurred during the intubation and the resulting injury.”

O'Hagan, Smith & Amundsen, L.L.C. (Chicago, Illinois)

Dennis Cotter and Troy Radunsky obtained a not-guilty verdict in favor of a construction manager. The plaintiff, a plumber, fell off of an allegedly defective scaffold and suffered several injuries, including a radial head fracture, prepatellar bursitis and wrist injuries. The plaintiff argued that the construction manager improperly supervised his activities, gave specific directions regarding his work, and that the scaffold was defective because it lacked guardrails, toe boards, and adequate wheel locks. Prior to trial, the plaintiff’s demanded $480,000, plus a waiver of the workers' compensation lien. The construction manager offered $80,000 at pretrial and withdrew the offer prior to trial.

The defense argued that it was not the duty of the construction manager to supervise the plaintiff's admittedly unsafe work, based primarily upon the pertinent contractual provisions in the case. The construction manager further argued that the scaffold was not unsafe or defective. After hearing all the evidence, the jury agreed with the defense and entered a verdict of not guilty.

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

Tom Oliver and Richard Trewhella of Carr Allison’s Birmingham office recently secured a defense verdict for a multi-state retail sales client against a former employee’s claims of sexual harassment and sex discrimination.  The former employee filed a lawsuit in the United States District Court for the Northern District of Alabama alleging pregnancy discrimination, constructive discharge, quid pro quo sexual harassment, and hostile work environment sex discrimination.  After first winning summary judgment for the client on the employee’s pregnancy discrimination and constructive discharge claims, Mr. Oliver and Mr. Trewhella tried the remainder of the case against a prominent Birmingham plaintiff’s lawyer before the Honorable Karon O. Bowdre.  At the conclusion of the two-day trial, the jury returned a verdict in favor of the defendant, awarding the plaintiff nothing.

The employee, who worked as a sales person at one of the client’s retail stores in Birmingham, alleged her former supervisor continually made flirtatious comments to her with explicit sexual content, acted jealous when male customers or sales associates spoke to her, described his sexual activities in graphic detail, frequently asked the employee to hug him, brushed his body against her body several times, rubbed his private parts against the employee’s backside, simulated a female sex organ with his hands, simulated oral sex, asked the employee what sexual position she preferred, and demonstrated how he would position her for sex.  The employee further alleged once she denied the supervisor’s sexual advances, he began to treat her harshly.  Once the supervisor discovered the employee was pregnant, the employee alleged he insisted she stock shelves with heavy boxes.  After allegedly not allowing a male co-worker assist the employee, the supervisor instructed the employee to either lift the boxes or clock out.  Because she could not lift the boxes, the employee clocked out and considered herself terminated.  

The employee filed suit against the supervisor and the employer.  After voluntarily dismissing her action against the supervisor, the employee proceeded against the employer on a theory of vicarious liability.  At trial, the defense argued the supervisor did not commit the alleged harassing acts.  The defense also maintained even if the supervisor sexually harassed the employee, the employer was not vicariously liable for the alleged actions of the supervisor.  Instead, the employee voluntarily resigned her position and did not suffer an adverse employment action.  Moreover, the employee never reported the alleged harassment to upper management even though the store had numerous posters located throughout indicating to whom employees should report harassing conduct.  Finally, the defense argued even if there was any sexual harassment, the employee did not find it unwelcome. 

During cross examination, the defense had the employee admit whenever the supervisor engaged in sexually harassing behavior she never walked away, never told him to stop, and never complained about the supervisor’s alleged behavior to other female staff.  Instead, the employee admitted she merely stood there and smiled whenever the supervisor allegedly harassed her.  Moreover, the employee testified when the supervisor allegedly asked her what sexual position she preferred, she answered him and told him she liked the missionary position.  Furthermore, a number of the employee’s former co-workers (all of whom no longer worked for the employer) testified they never saw or heard of the supervisor engaging in harassing behavior and did not even know the employee was pregnant while she worked for the employer.  Finally, although the employee testified she never saw the sexual harassment posters in the store, every former co-worker testified the posters were everywhere, even right in from of the counter where the employee worked every day. 

After two days of trial, the jury answered a set of special interrogatories and found the employee was not subjected to sexual harassment from her supervisor.  That being said, the jury did not have to answer the remaining interrogatories.  Consequently, the Court entered judgment in favor of the employer.      

Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C. (Mobile, Alabama)

An Alabama jury returned a defense verdict in a dram shop / wrongful death case in favor of a bowling alley represented by Carr Allison attorneys Craig Goolsby and Adam Overstreet.

In the late evening of March 23, 2002, Michael Roberson was visiting friends at the apartment of Missy Dickens.  Among those present was Amber Shropshire, a minor, who consumed two beers while at the apartment.  About an hour later, the group decided to go to a local bowling alley.  The members of the group departed from the apartment en route to the bowling alley in separate cars.  Roberson rode as a passenger with Shropshire driving.  The group stayed several hours at the bowling alley, during which several members of the group continued to consume alcohol, including Shropshire.  Shropshire never purchased any alcohol, but, instead, several members of the group who were over the age of twenty-one purchased the alcohol and supplied it to her out of sight of the bartender, including Roberson himself.  In total, Shropshire had at least six additional beers at the bowling alley.  Other members of the group noticed that she had become visibly intoxicated.  The group ultimately decided to return to Dickens’ apartment.  Roberson once again elected to ride with Shropshire to the apartment.  During the ride back to the apartment, Shropshire lost control of her car, hit a brick embankment, and flipped her car.  Roberson was killed in the accident.

The bowling alley defended on two fronts.  First, defense counsel argued that there was no direct sale of alcohol to Shropshire, as other adults of legal drinking age purchased it for her.  The uncontroverted evidence was that the only bartender on duty that night never served her, never saw anyone give her alcohol, and had no knowledge she was drinking.  Second, defense counsel argued that Roberson had assumed the risk by knowingly riding with Shropshire despite evidence that she was visibly intoxicated.  During the course of the trial, plaintiffs asked the jury for $5,000,000 in punitive damages, the only damages recoverable in an Alabama wrongful death lawsuit.  The jury deliberated for about an hour and a half before returning a verdict for the defendant.

Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C. (Mobile, Alabama)

The jury deliberated approximately forty-five minutes before returning a verdict on behalf of AMF Bowling in the case styled Michael and Pauline Nye v. AMF Bowling.  Mr. Nye, a very large man, had rented a pair of size 17 bowling shoes on the night of his 34th birthday.  While attempting to pick up a difficult 7-10 split, Mr. Nye approached the lane.  The heel of his left shoe came off causing him to fall and injure his left knee.  Mr. Nye was off work for five (5) months.  In the interim, he underwent surgery and aquatic rehabilitation on his left knee.

In December of 2002 he returned to work.  In October of 2003, Mr. Nye reported problems with his right knee related to overuse.  Dr. Joe Ray, orthopaedic surgeon, related the right knee problems to the bowling alley incident.  A subsequent MRI revealed torn cruciate ligaments in the right knee. 

Past lost wages equaled $9,500.00.  Medical expenses approached $25,000.00.

The defense focused on the fact there had never been any problems with these shoes before and that Mr. Nye’s size may have played a part in the incident.  It was also argued that there was no evidence indicating that the heel had become dislodged before Mr. Nye fell.  As a matter of fact, the heel on the other shoe was likewise broken.  The defense argued that the heels on the shoes in all likelihood broke when Mr. Nye fell to the ground. 

There were several interesting issues which came to light during the course of the trial.  AMF had made advancements to the Plaintiff.  A couple of the checks did not refer to medical expenses and therefore the Court allowed those checks to be admitted into evidence.  Plaintiff’s counsel obviously attempted to argue that this was an admission. 

Also, there were conversations between the adjuster who was not an AMF employee and the Plaintiffs.  The Court allowed some of the supposed statements made by the adjuster in evidence as admissions.  Supposedly, the adjuster indicated that they previously had problems with these shoes and that AMF would get their money from the manufacturer.  Also, a statement was allowed in that the adjuster supposedly said the shoes were old and should have not been in use at the center.  A trial decision was made not to have the adjuster present.  These arguments were countered by a physical examination of the shoes themselves showing that they were in fact not old and were other than the problems with the heels in good physical condition.  As for the statement concerning the fact that there was supposedly problems with these heels in the past and that they would get their money back from the manufacturer, it was noted that the shoes were mailed to the Plaintiffs in December of 2002 by AMF.  The argument obviously is that if they had some problems with the shoes previously why in the world were they just turning the shoes over to the Plaintiffs. 

The last demand before trial was $600,000.00.  AMF denied responsibility and made no offer of any consequence.

Wicker Smith O'Hara McCoy Graham & Ford,  P.A. (Miami, FL)

Wicker Smith attorneys Oscar Cabanas and Raul Loredo are to be congratulated for their success in a recent medical malpractice trial in Miami.  At the end of a week long trial, the jury returned a verdict in favor of the defendant-internist who was sued in this wrongful death case.  The surviving spouse of the 67-year old decedent claimed that as a result of the doctor’s alleged failure to properly diagnose and treat hypertension, the patient developed liver failure that lead to his death.  Plaintiff’s expert, who was also his main treating physician, is the chief of the department of hepatology at a local medical school.  This expert supported plaintiff’s contentions and testified that improper treatment caused liver failure in this patient.  The defense countered this argument with testimony from a Chicago hepatologist associated with Northwestern University’s medical school that fully supported the doctor’s care and explained why the decedent’s liver failure was wholly unrelated to the treatment he had received.

Rick Ramsey in Wicker Smith’s Orlando office is also in the “win column” this month with a defense verdict in another medical malpractice action.  Plaintiff, a 40 year old female factory worker, suffered bilateral carpal tunnel symptoms.  Rick’s client, a hand surgeon, determined that the appropriate treatment was to cut the transverse ligament to relieve pressure on the median nerve.  An endoscopic, rather than open, procedure was selected by the plaintiff despite the fact that this camera-guided surgery is arguably more prone to complications. Plaintiff complained of post-surgical severe burning, numbness, and pain.  During six months of conservative treatment, the doctor did not recognize that he had lacerated the median nerve.  Two subsequent surgical repair attempts by other surgeons were unsuccessful.  Plaintiff suffered a permanent injury with a lack of sensation of her hand and fingers and claimed future damages at $11.5 million.  Plaintiff’s expert testified that the defendant did not obtain a proper informed consent and as well as failing to timely diagnose the surgical injury.  The defense presented expert testimony that this is a difficult diagnosis to make, it is a very rare complication (less than one percent chance), and could have happened to the best surgeons operating within the standard of care.  A vocational rehabilitation expert opined that plaintiff could return to the work force.  Surveillance films also showed the jury that plaintiff had exaggerated her claim of loss of use of her hand.  The jury returned a defense verdict in 45 minutes.

Shelley Leinicke, head of Wicker Smith’s appellate department, had a banner month with wins in both the state and federal appellate courts.  The United States Court of Appeals for the Eleventh Circuit handed down a decision affirming the express preemption of state common law actions where a plaintiff’s claim arises under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).  Plaintiff claimed that as he was spreading an insect control product over his lawn that he was exposed to a “mist of powder,” suffered an adverse reaction, and required extensive hospitalization.  The case was originally filed in state court, but was removed to federal court by the various defendants.  Though the complaint sounded in negligence and strict liability, the appellate court agreed that the adequacy of the pesticide warning was the heart of the case.  The court agreed that all state claims were preempted by FIFRA because they arose, at least in part, from the claim of inadequate labeling.  Jim Zloch was trial counsel in this case. 

In a case heard by the Third District Court of Appeal sitting in Miami, Shelley successfully defended a jury verdict and final judgment rendered in a multi-week medical malpractice trial.  The appeal focused on the trial judge’s decision to limit the scope of opinions by the plaintiff’s expert based on a Frye challenge (Florida is not a Daubert state).  The plaintiff had wanted to introduce evidence of a “time line” relationship between a cyst and the subsequent development of ovarian cancer.   Bill Fink and Michael Brand were trial counsel for Wicker Smith’s client. 

Lashly & Baer, P.C. (St. Louis, Missouri)

Stefan J. Glynias of Lashly & Baer, P.C. recently tried a case on behalf of Costco Wholesale Corp.  (“Costco”) in the United States District Court for the Eastern District of Missouri in St. Louis, Missouri.  Plaintiff, an 84-year old woman, tripped over a parking bumper and claimed that Costco was negligent by not painting the bumper yellow, and by permitting the bumper to extend beyond the vehicle and thereby encroach upon the path of customers. 

Plaintiff sustained fractured vertebrae, which required a C1-C2 transarticular fixation with fusion, a nasal fracture, and a laceration near her right eye.  She was in ICU for two weeks and then remained in the hospital another week before being transferred to a nursing home.

Plaintiff conceded under cross-examination that she was not looking where she was going and that nothing obstructed her view of a clearly visible concrete parking bumper.

Pre-mediation, plaintiff made a demand of $750,000.  No offers were made by Costco.  Prior to trial, Mr. Glynias filed a Motion in Limine to prevent plaintiff from being able to offer evidence of approximately $190,000 of the plaintiff’s total $260,000 in medical expenses, due to their failure to develop a sufficient foundation to comply with the rules of evidence.  After twice arguing the point of law, the judge was inclined to grant Costco’s Motion in Limine.  Thereafter, plaintiff’s attorney voluntarily submitted only $65,000 in medical expenses rather than risk reversible error.  As a result, plaintiff asked the jury for an award of $250,000.

After a 35 minute deliberation, the jury returned a defense verdict assessing 100% fault to plaintiff.