James T. Patterson, Esq. (Mobile, AL) (Negligence) tried an unusual negligence case to a defense verdict on December 14, 2015. 

The claims arose from an incident on a beach front construction site that occurred on June 26, 2008.  There, the Plaintiff claimed he was working as a subcontractor repairing a beach house after a Hurricane, and that he slipped and fell badly injuring his left knee due to debris on the job site.  He claimed he was trying to get away from a board dropped by workers above him, who were building a deck.  The Plaintiff was extremely obese, and when he fell, his left leg bent backwards to where his foot hit him in the mouth.

The defendant general contractor, via the only employee other than Plaintiff who actually witnessed the man fall, said the plaintiff was not working on the beach house project, but instead stopped by on his way up Island and while visiting, stood leaning against a house piling with his legs crossed as he was oogling some bikini-clad girls who were walking down the beach.  The general contractor's employee stated that while the Plaintiff was tracking these girls with his eyes as they walked past, the man literally rolled off the piling while his legs were crossed—tripping himself to where his knee bent backward, and horribly injuring himself. 

Medical specials were in excess of $65,000 dollars, so any settlement that would have paid even just the medicals would have been expensive. Thus, because the stories from the eyewitnesses were so far apart, the carrier allowed the case to go to trial. 

We argued that the Plaintiff had gotten his story straight after seven years of litigation, and was able to tell the court a "whopper."  To prove that he was not being truthful, we presented medical records from the first five weeks after his fall where in histories, Plaintiff told at least four different stories about how he fell.  One story in medical records from the date of the accident is that he was helping an old lady down the steps; another story in medical records 10 days post accident was that he stepped backwards and tripped on a wire (at trial, plaintiff made it clear he was moving forward when he was injured); another story in medical records three weeks post accident was that he missed a step; another story in records five weeks post accident was that he had fallen off a porch.

Presumably because of the inconsistent stories given to medical providers in the five weeks post accident, as highlighted by the defense during impeachment at trial, the court granted a defense verdict.  Jackie Milan v. LTS Development Group, LLC, et al., In the Circuit Court of Mobile County, Alabama, Civil Action No.: CV-09-901842.

William K. Thames, Esq. (Pensacola, FL) (Workers Compensation Immunity) obtained a Summary Judgment in the case styled Brens v. Haines City HMA.

Mr. Brens injured his back on the job at Heart of Florida Hospital in a compensable accident. He was provided with workers compensation medical benefits until his authorized physician issued an opinion that the on the job injury was no longer the “major contributing cause” of his back complaints. Mr. Brens initially sought additional workers’ compensation benefits through workers compensation, but decided to dismiss his workers compensation claim and instead filed suit in circuit court seeking tort damages. The circuit court granted summary judgment based on workers compensation immunity. The court initially noted that workers compensation immunity is not available to an employer who denies that an employee’s injury arose out of the course and scope of employment, and an injured employee is entitled to file a lawsuit for tort damages in such a case. However, the court held that “at no time did the hospital deny workers’ compensation benefits on the ground that the injury did not arise out of Mr. Brens’ employment” and, on the contrary, the hospital accepted that the injury was work related and paid benefits until it learned from the authorized physician that the major contributing cause was not 51% related to the injury. Under these circumstances, workers’ compensation immunity barred the injured employee’s tort lawsuit.

Traci Teer, Esq. and David Willis, Esq. (Atlanta, GA) (Workers Compensation) obtained a fully favorable Award denying the claimant’s request for indemnity and medical benefits despite timely notice of an alleged on the job injury and subsequent medical care evidencing an injury and disability.

In Raoul Jones v. Pinnacle Workforce Logistics and XL Specialty Insurance Company c/o Gallagher Bassett Services, the claimant was a new hire and employed as a order picker in a Home Depot Distribution warehouse when he alleged a left upper extremity injury from lifting automobile floor jacks. At that time, he had been counselled, both verbally and in writing, about his slow pace and lack of attention to detail when performing his job.  His lack of attention to detail was ultimately his un-doing as his on-site supervisor testified that the warehouse did not stock automobile floor jacks but rather “jacks”--a slang term to describe a long handled single edge axe weighing 5 to 10 pounds.   Also, there were striking discrepancies in the claimant’s description of his accident and the sequence of his symptoms in statements to the ER physician, to his subsequent treating physician, and to the employer/insurer’s IME physician.   In sum, the claimant was exposed as a liar and ultimately, he failed to prove that his left upper extremity occurred at work.

Len Hackett, Esq. and Candace Padgett, Esq. (Jacksonville/North FL) (Employment Discrimination) were successful in obtaining summary judgment in the Northern District for the case styled Glenda Wilson vs. Dale Earnhardt, Jr. Chevrolet. The Plaintiff alleged she was passed over four times for promotion to a management position because of her race and age in violation of the Florida Civil Rights Act, §1981, Title VII, and the ADEA. The Florida Commission on Human Relations investigated the Plaintiff’s claims and found cause to believe discrimination took place. During litigation, however, Len and Candace were able to establish that the Plaintiff’s allegations had no merit, and that the four women chosen for the management position were more qualified than the Plaintiff. The court granted summary judgment and awarded costs in favor of Dale Earnhardt, Jr. Chevrolet.

Matthew S. Francis, Esq. (Florida Keys) (Premises Liability) obtained a summary judgment in the case styled Ramirez v. Albertson’s, LLC et al.. The Plaintiff alleged injuries stemming from an assault and battery by an Albertson’s employee at an Albertson’s grocery store and further alleged spoliation of evidence stemming from alleged missing portions of a store surveillance video.  At the close of discovery, Defendants moved for summary judgment on the basis that Defendants’ conduct did not create a foreseeable zone of risk and therefore Defendants owed no legal duty to Plaintiff, that Plaintiff’s alleged injuries were not proximately caused by any conduct of Defendants, and that no evidence existed that the named employee was involved in the alleged assault and battery incident.

Carl Bober, Esq. and Evan Zuckerman, Esq. (Hollywood/Broward, FL) (Auto accident – UIM claim) obtained a defense verdict after an 8 day jury trial in an Underinsured Motorist Coverage action filed against New Jersey Manufacturers Insurance Company in West Palm Beach, Florida. Plaintiff, a 56 year old single mother of two, brought a UIM claim seeking damages in excess of $1.5 million dollars alleging that she had a two level lumbar fusion and laminectomy as the result of two rear end car accidents.  Plaintiff also alleged that she sustained multiple herniated discs in her neck which would require surgery in the future.  The defense admitted negligence and the trial proceeded on the issues of causation and damages. Plaintiff presented the testimony of an orthopedic spinal surgeon Dr. Daniel Husted, a physiatrist Dr. Craig Lichtblau, and a chiropractor, as well as her family and friends. Her economic damages claim for the past and future expenses totaled over $745K.  For the defense, Carl and Evan presented the testimony of a board certified neurosurgeon Dr. Robert Brodner and a board certified nuclear medicine physician, Dr. Robert Kagan.   The jury deliberated a little over an hour and a half before rendering a defense verdict.  Our motion for attorney’s fees and costs is pending, as Plaintiff failed to accept a pretrial Proposal for Settlement.

David Willis, Esq. (Atlanta, GA) (Workers' Compensation)  Jamal Shavers v. Ranstad North America and Indemnity Insurance Company c/o ESIS.  This claim began on 2/18/14 when the claimant  was performing temp work and a 4500 pound server fell on his right ankle.  He also purportedly injured his left shoulder.   The claim was accepted as compensable and he was authorized to undergo medical treatment.  He was also placed on work restrictions.  Over the ensuing months Randstad was able to accommodate light duty at times, while at other times they could not accommodate light duty so that weekly TTD benefits were paid.  Ultimately, a new physician not of our choosing took over care and quickly placed the claimant on sedentary duty restrictions.  This continued for the next 15 months.  Most of his treatment focused on the foot/ankle, though later the claimant sought a resumption of treatment for his shoulder.   In response, we sent the claimant for an IME on the shoulder.  Our IME physician concluded nothing was wrong, the claimant could work full duty, and he needed no further medical treatment.  We also sent the claimant for a separate IME for his ankle.  This doctor likewise concluded the claimant was at MMI, needed no further treatment, and could perform regular duty work.  Thus, the issues for hearing were (1) compensability of the shoulder and (2) whether the claimant had undergone a “change in condition for the better” for his right ankle.   Judge Elizabeth Lammers ruled in our favor on both issues.  She put more stock in our IME opinions than the combination of the claimant’s testimony and the medical opinions of the treating doctor.  She concluded the claimant’s work injuries are resolved and he has no further disability or need for medical treatment due to his accident.  Barring an appeal the claim exposure just dropped to minimal/nuisance value.

Len Hackett, Esq. and Candace Padgett, Esq. (Jacksonville, FL) (Employment Related Practices)obtained a defense verdict in a race discrimination case for the Florida Department of Corrections  (the “FDOC”) following a three day jury trial in Bradford County, Florida.  The case was filed by Torey Ponds, a correctional officer with the FDOC. Mr. Ponds alleged that he was subjected to a hostile work environment because of his race and later retaliated against when he was initially denied a transfer to another correctional institution.  Prior to the firm’s involvement in the claim, the EEOC had issued a cause finding which stated that there was reason to believe Mr. Ponds was subjected to a hostile work environment and later retaliated against for engaging in protected activity.   Following discovery, Len and Candace were able to get the retaliation claim dismissed via a motion for summary judgment. Following a three-day trial, the jury returned a defense verdict with regard to the hostile work environment claim.