Verschleiser v. Publix Supermarkets, Inc.
Congratulations Meredith Stephens for obtaining final summary judgment on behalf of Publix Super Markets, Inc. in the Verschleiser matter.
Plaintiff alleged that she fell on a liquid when she was walking in the produce section and claimed injuries to her lower back and cervical spine, resulting in over $125,000 in treatment, almost all of which was incurred under letters of protection. Plaintiff’s physician recommended insertion of a spine stimulator, which would have increased costs approximately $75,000. Plaintiff had no significant pre-existing conditions. During her deposition, Plaintiff testified that that she fell on a clear liquid, did not know where it came from, or how long it had been on the floor. Plaintiff was unaware of anyone at Publix who knew about the liquid before her fall and specifically denied that she fell on a grape. Several months later, a produce clerk testified that he observed a smashed grape on the floor a 3 feet from where Plaintiff fell and identified the grape as source of the fall. The store manager testified that customers had fallen on grapes on prior occasions, although not in the subject store. Plaintiff argued that this testimony created an issue of material fact which precluded summary judgment. Publix argued that Plaintiff’s introduction of the “grape theory” contradicted her testimony that the cause was a clear liquid, however even if Plaintiff had properly inserted the “grape theory”, additional facts would be necessary for a jury to conclude that the grape was on the floor for a sufficient period of time to give Publix actual or constructive notice. The store video did not show how any substance got onto the floor. There was no evidence that any employee saw a grape and no evidence such as thawing, cart tracks or foot prints, to indicate that the subject grape had been on the floor. Publix argued that it complied with its regular inspection procedures, the store manager testified that he inspected the produce department multiple times a day, and that the produce clerk indicated that he constantly monitored the floor. Publix argued that no matter which theory Plaintiff proceeded on – a water theory or a grape theory – there was insufficient record evidence to show actual or constructive notice.
Publix’s motion for summary judgment and final summary judgment were granted.
Verdict Date: December 12, 2017
Mock v. Coburn
Congratulations Jeremy Palma and Michael Woodard for obtaining a favorable verdict in Mock v. Coburn on behalf of State Farm.
The case involved a motor vehicle accident in which the defendant, Ann Coburn, ran a red light in her 2005 Honda Civic and T- boned plaintiff’s pickup truck. Plaintiff was taken to the emergency room, diagnosed with a soft-tissue injury and sent home. Plaintiff did not or treat with any provider for 13 days until she presented to Injury Care Center on referral from her attorney. Thereafter plaintiff treated with several providers for neck and back related issues, ultimately undergoing a two level cervical fusion and subsequent redo fusion for a pseudo arthrosis. Plaintiff claimed she traumatically herniated two cervical discs and aggravated a pre-existing condition in her lumbar spine. Plaintiff retained an orthopedic specialist to review her past medical history and relate the need for surgery to the accident. Plaintiff also presented the testimony of her treating surgeon, radiologist, and Dr. John Russell, a life care planner. Dr. Russell testified that Plaintiff’s future medical expenses would be exceed $300, 000 and involve a lumbar fusion and third cervical fusion. The defense also presented the testimony of a radiologist and an orthopedic surgeon, who both testified that Plaintiff did not suffer a permanent injury and had long standing degenerative disc that was not related to the accident. In closing argument, plaintiff asked for $630,709 for past and future economic damages and $250,000 in past non-economic damages. The defense suggested that Plaintiff merely suffered a soft tissue injury which resolved in 6-12 weeks. The jury deliberated for 2 hours, 56 minutes before returning a favorable verdict in the amount of $9,122.26. After collateral source payments are set-off, the jury award will be reduced to zero.
Verdict Date: November 20, 2017
Ficke v. Davis
Congratulations Jeremy Palma and Michael Woodard for obtaining a defense verdict in Ficke v. Davis Mr. Davis was insured by State Farm and admitted negligence prior to trial. The case involved a motor vehicle accident. Mr. Davis and his girlfriend both testified that he came to a complete stop at a light behind plaintiff’s and, while waiting, he eased his foot off the brake and bumped the car in front of him. All parties agreed there was no damage to the Davis vehicle. In contrast, Mr. Ficke indicated that Mr. Davis never stopped and struck him at a speed of 20-30 mph. The damage estimate for the repair of the Ficke vehicle totaled $657 and photographs of the rear of the vehicle taken showed a 2” indentation on the bumper. At the scene, Mr. Ficke denied that he was injured and declined medical attention. He returned to work the same day and treated at an urgent care for a whiplash injury later that evening. Subsequently, Mr. Ficke treated with several providers on referral from his attorney including an orthopedic surgeon, a chiropractor and an orthopedic specialist. Mr. Ficke claimed to have traumatically herniated discs at three levels of his spine and underwent several rounds of facet block injections and radiofrequency nerve ablation from L3-S1. Ficke’s past medical expenses exceeded $100,000. Mr. Ficke also treated with several other providers, upon referral from his PCP, who noted that he suffered from pre-existing degenerative disc disease. A neurosurgeon testified that Mr. Ficke was not a surgical candidate when he presented to him for a second opinion, yet one month later Mr. Ficke underwent an experimental stem cell injection which ultimately only exacerbated his pain. Mr. Ficke then moved his family to the island of Saipan and did not treat with any of his physicians until the week before trial at which time he received a surgical recommendation. Dr. Srinivas, an accident reconstruction expert, testified that defendant’s vehicle “could have been traveling 5-10mph at impact.” The defense was successful in striking these opinions and this testimony was severely limited on the stand by the court. He was also severely impeached based on questionable practices. Plaintiff also called Dr. John Russell as a life care planner who testified that Mr. Ficke would need up to $650,000 in future medical expenses. Dr. Russell was severely impeached and failed to provide any data upon which he based his cost analysis. Plaintiff’s claim for non-economic damages revolved around his loss of ability to enjoy life by “being entrepreneurial.” Plaintiff’s counsel introduced several B&A witnesses to testify that the family business had suffered and had to be sold. The defense countered with evidence that Mr. Ficke had in fact started several companies in both Florida and Saipan after the accident. The defense presented the testimony of a radiologist and an orthopedic surgeon, who both testified that Plaintiff did not suffer a permanent injury and had long standing degenerative disc disease. Plaintiff asked for $2.3 million for past and future economic and non-economic damages. The jury deliberated for 1 hour, 24 minutes before returning a complete defense verdict.
Verdict Date: October 16, 2017
Whitehead v. Dr. Elder & SIMED
Congratulations Dick Womble and Jennifer Hoge, as well as Christine Zharova who handled the case until just before trial, for obtaining a defense verdict for Dr. Tim Elder, a hospitalist, and Integrated Medical, PL (SIMED). Dr. Gillian VanSluytman, and North Florida Regional Medical Center (“NFRMC”), the hospital where the care occurred, settled prior to trial.
The case revolved around the care that decedent, Sheriff Gerald Whitehead, at NFRMC. Sheriff Whitehead had been complaining of nausea, vomiting and hematuria for four weeks, leaving him immobile during that period. On December 12, 2013, Sheriff Whitehead was seen by family practitioner, Dr. Johnson. He was diagnosed as potentially having a urinary tract or upper respiratory infection, was prescribed antibiotics and was sent home. On December 17, 2013, Sheriff Whitehead’s complaints had not resolved and he had orange urine, prompting his wife to make an appointment at SIMED to see its PCP. Ms. Whitehead claimed that her husband’s shortness of breath was so severe as she drove to SIMED that she was afraid he would not survive the trip. Upon arrival at SIMED, his O2 saturations were in the 80’s and had he was transported to North Florida Regional Medical Center’s ED by ambulance.
Sheriff Whitehead was seen in the ED and admitted by Dr. VanSluytman who obtained a detailed history and determined Sheriff Whitehead most likely had a pulmonary embolism or heart attack. Dr. VanSluytman ordered heparin, admitted him to PCU, and ordered additional diagnostics. Dr. VanSluytman was aware that Sheriff Whitehead had elevated troponins and CK-MB, elevated CREA, elevated lactic acid and low O2 saturations. She felt the heparin was appropriate for both a PE or a heart attack, and based on his stability, a cardiology consult and echo were to occur in the morning. An ultrasound confirmed a DVT in the right calf. Dr. VanSluytman went off shift at 11 pm. Per the protocol, the PTT, which checked the efficacy of the heparin protocol, was to be performed at 12 am, however, it was not done until 1:45 am. The value, 26, was not reported to the nocturnist, Dr. Mayer, until 4:00 am. Dr. Mayer ordered another bolus of heparin and an increased drip rate. At around 9:30 am, Dr. Elder found Sheriff Whitehead clutching his chest and complaining of chest pain. He ordered nitro and morphine, which resolved the complaints. Dr. Elder saw that a PTT at 6:41 am was 42 ( trending upward) and evidence on EKG of additional right ventricle enlargement and strain. Sheriff Whitehead had been saturating well overnight and was rather stable. Dr. Elder planned to return over his lunch break to check on him.
At 10:50 am, a repeat PTT was 27, Dr. Elder ordered a larger bolus of heparin, increased the drip rate in response, and returned to the NFRMC to find Sheriff Whitehead in respiratory distress. While on the phone with Dr. DeMarco, an intensivist, necessary to consider intubation, admission to the ICU and possible administration of tPA, Sheriff Whitehead began coding. Dr. Elder told Dr. DeMarco to come immediately and dealt with the code. Dr. DeMarco arrived and assisted with the code as well. Their efforts were unsuccessful and just before 2 pm, Sheriff Whitehead was declared deceased. Afterwards, Ms. Whitehead called Dr. Elder and thanked him for his care and asked if he was accepting. However, Plaintiff then filed suit. The Good Samaritan defense was raised in response. It was agreed ultimately that Sheriff Whitehead was suffering from a sub-massive PE, and he likely threw an additional clot just before his code event because he had not reached therapeutic levels of heparin by that time.
The jury deliberated for 1 hour, 54 minutes before returning with a defense verdict.
Verdict Date: October 10, 2017
Amar v. Boden
Congratulations Jennifer Hoge in prevailing on the motion to dismiss for fraud in the matter of Amar v. Boden.
The lawsuit arose from an automobile v. pedestrian accident. Mr. Amar alleged that Mr. Boden struck him in a parking lot, drove over his foot, knocked him to the ground then backed up and ran over him again. As a result of the incident, Mr. Amar alleged he sustained injuries to multiple parts including his neck and lower back. He also claimed mental anguish and his wife had a consortium claim. Mr. Amar had no surgeries or surgical recommendations. Reports from diagnostic studies performed on the date of the incident, as well as in subsequent imaging, documented Mr. Amar as having a prior laminectomy. Mr. Amar adamantly denied this to his treating physicians, in discovery and at his deposition. It was impossible to obtain related records as Mr. Amar refused to fully disclose his prior providers. He also refused to comply with discovery requests and had previously been declared incompetent for trial in a prior matter until he had completed psychological treatment. Mr. Amar refused to execute authorizations for related records. Furthermore, the Amar’s had previously testified in a matter brought by Mrs. Amar and David Kuhn, of our Orlando office, recalled the plaintiffs. He also recalled their sworn testimony that they were cousins and not married. The consortium claim in this matter was subject to questioning due to perjury about marital status. Plaintiffs’ counsel withdrew and the plaintiffs represented themselves. Plaintiff was given 5 days to execute authorizations and 60 days to provide a valid marriage license.
Plaintiffs failed to comply and the action was dismissed with prejudice and final summary judgment granted.
Verdict Date: October 09, 2017
McGauley v. Williams
Congratulations Dick Womble and Meredith Stephens for obtaining a defense verdict for Dr. Williams in the McGauley case.
Plaintiff alleged that Dr. Williams negligently performed a vertebroplasty that was not indicated because Mr. McGauley had osteomyelitis and a burst fracture. Plaintiff also alleged that Dr. Williams used too much cement, which caused a rupture at the adjacent vertebral body, and resulted Mr. Gauley’s becoming paralyzed. Plaintiff also claimed that Dr. Williams failed to obtain informed consent for the procedure and Dr. Williams fraudulently signed the consent form after the surgery. Plaintiff asked for damages in excess of $3 million dollars, representing Mr. McGauley’s pain and suffering between the date of the surgery and his death seven months later, from unrelated causes. The defense argued that, before the vertebroplasty, Dr. Williams had ordered a biopsy and the pathology report was inconsistent with osteomyelitis. All of Plaintiff’s post-surgery physicians believed that a tumor was the most likely cause and multiple physicians did not suspect infection. Defense admitted that osteomyelitis was present however, it was only in retrospect that the physicians could have known this. Importantly, Plaintiff’s sedimentation rate before the vertebroplasty was not consistent with infection. Mr. McGauley ‘s post-vertebroplasty exam showed positive movement and defense argued that Mr. McGauley did not become paralysed until the day after, when a nurse made him stand up from bed. In a spine filled with infection, collapse can occur with this simple movement. The defense emphasized that the amount of cement was necessary and undermined Plaintiff’s claim that he was in good health prior. The defense moved for directed verdict on the informed consent issue, as that plaintiff failed to demonstrate a link between lack of informed consent and paralysis. Mr. McGauley’s daughter, who was medical surrogate and personal representative, testified that if she had been told paralysis was a potential risk of the procedure, she would have “talked to her family about it”, but never testified that she would not have given consent. The day after the motion, Plaintiff voluntarily dismissed the informed consent claim.
The jury deliberated for 10.5 hours over the course of 2 days before returning a defense verdict.
Verdict Date: August 16, 2017
Bryson v. Perry
Congratulations Michael C. Woodard for obtaining a dismissal with prejudice in the Bryson v. Perry matter.
This personal injury action involved a motor vehicle accident in which plaintiff claimed her vehicle was side swiped by the defendant and that as a result, she underwent surgery on her hand and shoulder. Plaintiff’s prior medical history was complicated and included multiple prior accidents, surgical procedures and pre-existing conditions. During the course of the litigation, Plaintiff repeatedly failed to provide responses to discovery requests relating to pre-existing conditions and prior treatment. Plaintiff went through three different attorneys before representing herself.
After plaintiff’s repeated violations of court orders compelling discovery responses, the court granted defendant’s motion for contempt and sanctions, and entered a dismissal with prejudice.
Verdict Date: June 08, 2017
S.D. v. Seminole County
Congratulations Bowie Kuhn for obtaining a defense verdict on behalf of Seminole County.
Plaintiff, S.D, lived a few blocks from the area where she fell and acknowledged walking the area the day before her fall. Ms. D allegedly injured her knee and after receiving a recommendation from her counsel came under the care of Richard Smith, MD. Ms. D signed a LOP, an MRI of the knee was obtained, and surgery recommended. For unknown reasons, Ms. D next came under the care of, Merrill Reuter, MD who had her sin an LOP and recommended surgery. However, Ms. D once again changed surgeons, to David Petersen, MD who continued the pattern of obtaining a LOP and recommending surgery. The surgery was performed by Dr. Peterson and plaintiff was seen for one post- surgical office visit before returning to Russia. Ms. D returned to Florida four months later and saw Dr. Petersen on two more occasions. Dr. Petersen suggested that she would need a total knee replacement sometime in the future at an expense of $200,000. Plaintiff’s case focused on a County sidewalk inspection of the area which identified 5 sidewalk “panels” that needed to be replaced. A work order had been generated, placing the repair job in line with hundreds of others. The County argued the panels identified for need of repair were not the same panels that caused Ms. D to trip. The defense’s position was the sidewalk cracks were so open and obvious that only Ms. D’s inattentiveness was the reason she fell. Most damaging to Ms. D’s case was surveillance of her taken over a 3 day period showing her walking with no cane or limp. However the day of her scheduled IME she was captured walking into the doctor’s office and leaving with a limp and cane. After the IME, she was captured exiting the car, sans limp or cane and seen carrying numerous items throughout a store with no limp. Plaintiff counsel asked the jury to award $250,000.
The jury retired and returned a defense verdict an hour later.
Verdict Date: May 10, 2017
Gallo v. State Farm
Congratulations Vance Dawson, Jeremy Palma & Michael Woodard for obtaining a very favorable verdict in Gallo v. State Farm.
This underinsured motorist case arose out of two minor rear-end collision motor vehicle accidents. After the first accident, Dr. Gallo drove to work and completed a shift as an anesthesiologist. Dr. Gallo kept a previously scheduled appointment, 6 days post- accident, to address his PCP’s concerns regarding chronic pre-accident use of medications including Percocet to treat migraines and cervical pain. Dr. Gallo was told his symptoms were caused by the Percocet. He never returned and retained an attorney. Dr. Gallo continued to work for two months and began treating with three other physicians, all of whom had pre-accident histories for Dr. Gallo’s migraines and neck pain. Ultimately, he was diagnosed with “post-concussive” syndrome and a mild traumatic brain injury. A one to two level ACDF was recommended and Dr. Gallo was diagnosed with TBI. He stopped working and then orchestrated claims against various disability carriers, the insurer and Social Security Administration, receiving over $2.8 million in settlements plus SSD benefits.
In the second accident, the tortfeasor testified that his foot slipped off the brake onto the accelerator while in traffic. Defense discovered that Dr. Gallo’s first call was to his attorney who made it to the scene before first responders. Plaintiff’s wife testified that the attorney had a conversation with them as they waited for the fire department to arrive. Upon arrival, Dr. Gallo insisted upon being cut-out of his SUV, despite the lack of damage to the front or sides. The fire department dismantled his vehicle with the jaws of life as Dr. Gallo’s attorney took pictures. Plaintiff claimed that the second MVA aggravated his TBI, headaches, and post-concussive syndrome. He also claimed that he could not speak and suffered amnesia for 11 days. Dr. Gallo’s claims were significantly impeached with several medical records indicating normal neurologic exams, Glascow coma scores, and imaging.
Dr. Gallo presented the testimony of friends and treating physicians who have known him for 25+ years. All of his treating physicians related the TBI to the first MVA, yet none had reviewed the normal examination. Plaintiff’s neuroradiologist had reviewed only one MRI Brain with DTI and admitted he had not compared his findings with the normal MRI Brain taken after the second MVA or other films of the head and neck. Plaintiff’s endocrinologist, testified “since the accidents Dr. Gallo had developed pituitary dysfunction” causing a growth hormone deficiency. On cross examination, the physician could not relate the pituitary injury to either MVA.
Dr. Gallo presented a life care planner and an economist. In their combined testimony, Dr. Gallo’s lost wage and earning capacity claims were estimated at $6,000,000 and future medical would be in excess of $1,000,000. Neither expert had reviewed Dr. Gallo’s EUO where he admitted he was 95% of the way to his 401k goal for retirement.
Defense presented the testimony of four expert witnesses and focused on the effects of the 22+ medications that Dr. Gallo was taking before and after the MVAs. A biomechanical engineer testified that it was unlikely that accident could have caused a closed head injury, especially in light of Dr. Gallo’s testimony that he did not strike his head or lose consciousness. A neuro-radiologist testified that in his opinion, all of Dr. Gallo’s pre-accident imaging studies were essentially the same as the post-accident studies and were within normal limits. A neuropsychologist diagnosed Dr. Gallo as a hypochondriac with pre-existing somataform disorder and testified that any alleged cognitive deficits he had were pre-existing, and that with treatment for the disorder, he would be able to return to work. A neurologist, testified that Dr. Gallo did not suffer a TBI as a result of either MVA and described Dr. Gallo’s pharmaceutical cocktail and how it would be impacted by using alcohol while taking medications such as Dilaudid, Fentanyl, Lyrica, Cymbalta and Soma.
Plaintiffs’ counsel requested $12,000,000 in closing. The jury deliberated 4 hours, 12 minutes before returning a total verdict of $8,865 for past medical expenses. State Farm will be entitled to recover of taxable costs and attorney’s fees.
Verdict Date: April 28, 2017
Thompson v. Dr. Navani
Congratulations Bucky Hurt and Vance Dawson for obtaining a defense verdict for Dr. Divya Navani and Internal Medicine Associates, PLC on behalf of TDC , in a medical malpractice wrongful death case.
The case focused on care rendered by Dr. Navani, an internal medicine physician consulting on post-surgical patient, Nicholas Thompson, at Florida Hospital Celebration. Dr. Navani followed Mr. Thompson on October 13 – 17, 2009 after his October 13, 2009 spinal surgery performed by Dr. Robert Masson.
Following his spinal surgery, Mr. Thompson began experiencing alcohol withdrawal syndrome on October 16, 2009 and eventually delirium tremens on October 17, 2009. Notably, Mr. Thompson did not disclose, in fact denied, his excessive alcohol consumption to anyone other than his anesthesiologist prior to, or even following, his spinal surgery. Dr. Navani was able to determine the source of his symptoms despite Mr. Thompson’s lies about his alcohol use.
Ultimately, Mr. Thompson aspirated, which caused him to go into respiratory arrest. Mr. Thompson suffered irreversible brain damage and was eventually withdrawn from life support on October 24, 2009.
Plaintiff claimed Dr. Navani failed to appropriately treat Mr. Thompson’s alcohol withdrawal syndrome. Specifically, plaintiff alleged that Dr. Navani prescribed an inappropriate dose of Ativan, inappropriately prescribed Haldol, failed to obtain timely radiological studies and a gastroenterology consult for Mr. Thompson’s alleged ileus, failed to timely insert a NG tube to treat the alleged ileus, failed to appropriately prescribe potassium chloride to treat low potassium and failed to order a critical care consult for the symptoms of alcohol withdrawal so that Mr. Thompson could be admitted to the ICU.
However, plaintiff did not express similar criticisms against Dr. Masson, who performed the surgery, or the neurologist or cardiologist who also saw Mr. Thompson after surgery and addressed and/or treated the symptoms of alcohol withdrawal syndrome. Florida Hospital Celebration had been named in the suit but settled before trial.
The trial lasted five days. In closing, plaintiff requested $117,559 in funeral and medical expenses, plus $1.0 - $1.35 million in intangible damages for a total of $1,117,559 - $1,467,559.
The jury deliberated 37 minutes before returning a defense verdict finding there was no negligence on the part of Dr. Navani or her group that was the legal cause of Mr. Thompson’s death. Plaintiff filed a proposal for settlement for $80,000, 45 days before trial. The defendants’ offer was zero.
Verdict Date: April 17, 2017
Ravelo v. Brasfield & Gorrie
Congratulations Meredith Stephens for obtaining a voluntarily dismissal with prejudice in this premises liability action.
Plaintiff sued Brasfield & Gorrie claiming that he sustained injuries when he tripped over construction debris hanging over the edge of a curb. After the incident, plaintiff underwent a right shoulder arthroscopy and a left hip replacement. The defense filed a motion to dismiss with prejudice based upon plaintiff’s fraud on the court. The motion established that plaintiff provided false and misleading testimony on material issues related to the condition which allegedly caused his fall. Plaintiff testified that he took a photograph of the allegedly dangerous condition on the date of the incident. Evidence and expert testimony revealed that the photograph was taken 34 days after the incident. Defense argued that plaintiff provided this false testimony to deceive the court about the condition of the premises. Additionally, plaintiff testified that he had never undergone medical treatment to his right shoulder before the incident, but medical records showed that plaintiff underwent a previous right shoulder arthroscopy.
Seventeen days after the defense sent a § 57.105 letter to opposing counsel, plaintiff’s counsel filed a voluntary dismissal with prejudice, ending the litigation.
Verdict Date: March 13, 2017
Estate of Maldonado v Ted Clark, W. T. Fellows, Inc. and Peaoplease, Inc.
Verdict Date: February 17, 2017
Ferris v. Associated Family Medicine II, P.A.
Congratulations Skip Jewett and Jeremy Palma for obtaining a defense verdict for Associated Family Medicine in behalf of TDC in the Ferris trial The case focused on care rendered by Richard Shaffer, D.O.
Plaintiff claimed that Dr. Shaffer failed to consider a cardiac cause for the decedent’s complaints. The decedent related that he had been short of breath since being diagnosed with pneumonia. Plaintiff claimed that had Dr. Shaffer considered a cardiac cause for the complaints, an EKG could have been ordered which would have been abnormal and required referral. Plaintiff also claimed that Dr. Shaffer failed to obtain records from the prior primary care physician who had obtained of previously abnormal EKGs. The decedent had a heart attack two weeks after the office visit with Dr. Shaffer and two days after the final office visit with the prior PCP. The decedent ultimately had a heart transplant and died due to transplant rejection. Plaintiff claimed that had the decedent been stented at any time prior to the heart attack, the need for the transplant and death would have been avoided. The trial lasted seven days. In closing, Plaintiff requested $3,493,716 - $6,193,716 in total.
The jury deliberated 42 minutes before returning a defense verdict finding that there was no negligence on the part of Dr. Shaffer that was the legal cause of the death.
Verdict Date: February 07, 2017