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