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News from Around the State: Trials and Verdicts Kevin S. Callahan v. Organic Ventures, Inc., et al Buffalo County Case Number 20-CV-08 Trial Dates: September 28-29, 2022 Facts: Plaintiff fell off a loading dock as he was attempting to lift a dock plate that he says was not working properly. As he did, he lost his balance and fell through the opening between the side of the truck and the wall of the loading dock. He sustained a fracture to his wrist which required surgery and the permanent placement of hardware. The surgeon indicated that plaintiff had made a complete recovery, had no permanent injury, and would not require future medical care. Issues for Trial: The parties stipulated to $58,369.62 in past medical bills and $2,356.56 in past wage loss. Liability and general damages were contested. At Trial: Plaintiff presented evidence that the bumpers on the outside of the dock were in disrepair. As a result of the damaged bumpers, it was argued that it was difficult to line up the delivery truck and that a gap was created between the side of the truck and the building. Plaintiff also presented evidence of a subsequent remedial measure that the dock owner put up a sign after the accident advising drivers that they should not operate the dock plate. Defendant contended that there was a rule in place that delivery drivers should not operate the dock plate and that the dock plate functioned properly both before and after the incident. Defendant submitted evidence that the plaintiff attempted to place the dock plate on two occasions and, rather than ask for help, attempted a maneuver to where he bent over to lift the dock plate with his hand. The defendant further suggested that if the jury found that it was negligent to not repair the bumpers on the dock, that such negligence was not a cause of the fall and only affected where the plaintiff landed. Regarding damages, plaintiff presented evidence of ongoing pain and limitations to the wrist but had to concede that he had not returned to the surgeon or any other doctor since he was released from care three year earlier. Plaintiff’s counsel asked for $60,000 for past pain, suffering and disability and $60,000 for future pain, suffering and disability. Defendant asked for $14,000 to $18,000 for past pain, suffering, and disability and left it to the jury’s discretion as to whether the evidence supported an award for future pain, suffering and disability. The jury awarded $15,000 for past pain, suffering and disability and no future general damages. The jury found that defendant was negligent in its maintenance of the premises but that such negligence was not a cause of the plaintiff’s fall. The jury further found that the plaintiff was negligent as to his own safety and such negligence was a cause of his fall, resulting in no recovery. Plaintiff’s Final Pre-Trial Demand: $275,000 (but plaintiff indicated he would accept $75,000) Defendant’s Final Pre-Trial Offer: $15,000 Verdict: $0 For more information, contact Rick E. Hills at [email protected]. ______________________________________________________________________________ Sydney L. Jepson v. Richard E. Boland, et al. La Crosse County Case No. 20-CV-163 Trial Dates: September 26-28, 2022 Facts: Plaintiff was claiming vision problems and headaches from an accident. Issues for Trial: Causation and damages were contested. At Trial: Plaintiff had an IME doctor testify that she would need future vision therapy (five times at a cost of $6,500 each), headache medication ($1,500 per year with a life expectancy of 57 years), and prism glasses (three times at a cost of $1,000 each). The defense attacked the plaintiff’s IME doctor’s credibility on the grounds that the doctor never spoke with plaintiff or treated her, and plaintiff had never been prescribed medication for headaches, additional vision therapy, or prism glasses by her treating doctors. The defense used Dr. Joseph Burgarino, MD as their IME doctor. During trial, a jurorclaimed her notepad had been tampered with. It was ripped and someone had written in the back, “Are you positive?” Given that the notepads are recycled and reused by juries, the judge was not concerned but said she would check with her cleaning crew. At the end of trial, plaintiff asked the jury to award $21,974 in past medical expenses, $120,000 in future medical expenses, $932 in lost wages, $75,000 for past pain, suffering and disability, and $150,000 for future pain, suffering and disability. The defense asked the jury to award past medical expenses of $11,900, $25,000 to $35,000 for past pain, suffering and disability, and no future damages. The jury began deliberations on day three. One of the excused alternate jurors indicated to defense counsel that he did not find Dr. Burgarino to be credible and that he would have awarded plaintiff approximately $47,000 in past and future medical expenses. Within a half an hour of the jury stepping out for deliberations, the parties were called back into court. The court read a note from a juror with four questions: 1. What settlement offer(s) have been made by the insurance company? 2. Were the settlement offers rejected? 3. Can we view evidence: all exhibits and video? 4. When did plaintiff seek legal counsel? The judge was upset that a rogue juror was introducing concepts to the jury and was discussing them without following her instructions (i.e., the only discussion should be about the evidence presented during the trial). Based on the questions presented the judge did not feel that she could rehabilitate the jury by providing any type of corrective instruction. It was her wish to declare a mistrial and both sides agreed based upon the record. Plaintiff’s Final Pre-Trial Demand: $120,000 Defendant’s Final Pre-Trial Offer: $45,000 Result: Mistrial For more information, please contact Kara M. Burgos at [email protected]. ______________________________________________________________________________ Jay Sebok, et al., vs. West Bend Mutual Insurance Company, et al. Dane County Case No. 20-CV-2312 Trial Dates: August 29, 2022 to September 1, 2022 Facts: Plaintiff was rear-ended by defendant on Mineral Point Road waiting to get onto the beltline eastbound ramp. Defendant approached plaintiff’s vehicle stopped in the turn lane, waiting to enter the on-ramp. It had snowed overnight, and the roads were in varying stages of clearing. As defendant approached, she braked but ultimately bumped into plaintiff’s rear end. An accident reconstructionist opined that the collision was 4-6 mph with only damage to the plastic bumper and some minor intrusion into the trunk space. Plaintiff got out of his car after the accident, checked on defendant, called the police, and was instructed to drive up the road to a location out of traffic. Once in a parking lot further down Mineral Point, plaintiff and defendant again exited their vehicles and checked on each other, exchanged information, and all appeared in no physical distress. Police arrived, took a report, issued no citation, and all involved drove away to school and work. Later that day, plaintiff complained of neck pain at the urgent care. Two months later, plaintiff made a complaint of lumbar tenderness and went through an initial round of PT. Plaintiff began treating extensively with a physical medicine and rehabilitation specialist who provided numerous injections and eventually recommended a spinal cord stimulator. Plaintiff also went to 165 PT appointments over the ensuing 3 years before trial as well as chiropractic care and massage therapy. Nothing has relieved his pain that developed after the accident. Issues for Trial: Liability was stipulated, but the facts of the collision and how the parties appeared on scene was allowed into evidence. Relatedness and the value of damages were thoroughly contested. At Trial: Plaintiff asked for $3,600,000 including $2,000,000 for future pain and suffering. The jury awarded $778,217.46. This number included the defense expert on reasonableness of bills number and defense counsel’s numbers for all other damage categories. Plaintiff's Final Pre-Trial Demand: $950,000 Defendant's Final Pre-Trial Offer: $600,000 Verdict: $778,217.46 For more information, contact Adam M. Fitzpatrick at [email protected] or Alyssa Chojnacki at [email protected]. ______________________________________________________________________________ Thomas De La Rosa, et al. v. SECURA Insurance, A Mutual Company, et al. Waukesha County Case Number 18-CV-1460 Trial Dates: August 30-31, 2022 Facts: The plaintiff was involved in a rear-end accident on December 23, 2015. He had left his pain management doctor’s office one hour earlier with a diagnosis of failed anterior two-level cervical fusion. The plaintiff moved to California three months after the accident. He had a posterior three-level cervical fusion on April 28, 2017. After that surgery, the plaintiff developed adjacent disc disease and the surgeon believed another surgery was necessary because of the accident. Issues for Trial: The parties stipulated to liability. The only issue for trial was damages. At Trial: Plaintiff asked for $239.380.17 in past medical bills, $199,375.00 in future medical bills, $100,000 to $200,000 for past pain, suffering and disability, and $100,000 to $200,000 for future pain, suffering and disability. The defense argued that the accident resulted in a temporary aggravation of a pre-existing condition for a period of no more than three months. The defense argued that $4,000 to $6,000 would be an appropriate award for past pain, suffering and disability. The jury awarded $5,150.50 in past medical expenses, $15,000 for past pain, suffering and disability, and no future damages. Plaintiff’s Final Pre-Trial Demand: $900,000.00 Defendant’s Final Pre-Trial Offer: $20,000.00 Verdict: $20,150.50 For more information, contact Rick E. Hills at [email protected]. ______________________________________________________________________________ Saddle Mound Cranberry Company, Inc. v. Daniel Mullins, et al. Jackson County Case No. 19-CV-155 Trial Dates: August 23-24, 2022 Facts: Defendant logging company was hired by plaintiff to log plaintiff’s land. Plaintiff claimed after the fact that defendant: 1) harvested trees that were outside the scope of the parties’ written agreement; 2) failed to pay for all timber harvested; and 3) harvested in an area not authorized by the contract. The claim regarding harvesting in an unauthorized area was dismissed on summary judgment. Issues for Trial: Liability and damages. At Trial: The owners of the plaintiff company testified that they saw logging trucks entering and exiting their property hauling severed timber on dates that were not covered by any of the payments and receipts they received from the defendant. They also testified regarding alleged damage to the land caused by the defendant’s logging equipment. The plaintiff’s expert testified regarding his observations of logging site and that he calculated that the defendant failed to pay for 141.67 cords of wood that were harvested, which represented 6.2% of all the timber harvested during the project. Neither the expert nor any other plaintiff witness testified regarding the value of the trees harvested, nor the costs to repair any of the alleged damage. The Court granted the defense’s motion for a directed verdict at the close of the plaintiff’s case based on the plaintiff’s failure to present any evidence of damages. Plaintiff’s Final Pre-Trial Demand: $474,000 Defendant’s Final Pre-Trial Offer: $11,500 Verdict: $0 For more information, contact Nicole Marklein at [email protected]. ______________________________________________________________________________ Michael E. Uttke, et al. v. Erie Insurance Exchange, et al. Fond du Lac County Case No. 20-CV-315 Trial Dates: August 3-5, 2022 Facts: Plaintiff was rear-ended while at a stop waiting for oncoming traffic to clear. Issues for Trial: Damages and Liability. At Trial: Plaintiff claimed $184,134.52 in past and future medical costs for Delta 8 marijuana and radiofrequency ablations. Plaintiff asked the jury to return a total verdict of $484,134.52. The jury awarded $80,000 in damages and found plaintiff 25% negligent, which reduced his recovery to $60,000. Plaintiff's Final Pre-Trial Demand: Over $100,000 Defendant's Final Pre-Trial Offer: $70,000 Verdict: $60,000 For more information, contact Todd C. Dickey at [email protected]. ______________________________________________________________________________ John Bromfield, et al. v. Prairie Rock Landscapes, Inc., et al Walworth County Case No. 19-CV-753 Trial Dates: August 1-2, 2022 Facts: The 80-year-old plaintiff fell at his own town home on January 10, 2017, when he went outside at 6:45 a.m. to pick up his newspaper. He fell on black ice on his driveway and fractured his femur. Complication kept the plaintiff hospitalized or in rehabilitation facilities for over two months. The plaintiff sued the townhome owners’ association and the snowplow contractor. Despite the fact the board for the townhome owners’ association was not paid and had no employees, the court found the owners’ association was subject to the safe place statute. The court also found that the snowplow contractor was subject to the safe place statute because he hired employees who worked on the premises. The townhome owners’ association settled under a Pierringer Release. Issues for Trial: Liability and damages were contested. At Trial: The plaintiffs presented testimony from a snowplow expert from Pennsylvania to show the snowplow contractor could have been using more efficient measures of monitoring the weather conditions. The plaintiffs also presented testimony from a meteorologist to show what advance weather warnings had been issued by local and national weather services. The meteorologist also discussed the lighting conditions based upon a sunrise about 35 minutes after the fall. Defense presented testimony that the plaintiff was wearing inappropriate clothing (bath robe and slippers), that the plaintiff did not turn on the outside light, and that the plaintiff walked on the grass to and from picking up the paper suggesting that he knew there had been freezing rain. The snowplow contractor had also provided plowing and salting services about six to seven hours before the accident. The parties stipulated to past medical expenses of $306,553.45. Plaintiff’s counsel asked for $1 million in past pain and suffering and $1 million for future pain and suffering. The jury found defendant not negligent in their maintenance of the premises and plaintiff negligent with regard to his own safety. The jury also found that the settling party was not negligent. Plaintiff’s Final Pre-Trial Demand: “At least six figures.” Defendant’s Final Pre-Trial Offer: $15,000.00 Verdict: $0.00 For more information, contact Rick E. Hills at [email protected]. ______________________________________________________________________________ Ian M.S. Flaws, et al. v. SECURA Insurance Company Dane County Case No. 21-CV-135 Trial Dates: April 18-19, 2022 Facts: The plaintiff claimed underinsured motorist benefits arising out of an accident on June 12, 2019. The plaintiff was driving a vehicle for his employer when another vehicle attempted a U-turn from the right lane as the plaintiff was traveling in the left lane. The plaintiff alleged an injury to the spine which required a two-level disc replacement surgery. Issues for Trial: The parties stipulated to a 90/10 liability split. The only issue for trial was damages. At Trial: Plaintiff’s counsel advised the jury in opening statement that he would be asking for $1 million at the close of the case for pain and suffering. The plaintiff was 35 years old at the time of trial. Defense argued that plaintiff had symptoms which pre-dated the accident and that surgery was already being contemplated. Plaintiff focused on the fact that the accident was “a” cause of the surgery. Defendants argued that even if the surgery was related, plaintiff was functioning better than before the accident and was able to work as a plumber. The jury awarded $75,358.13 in past medical expenses, $18,240.00 in past wage loss, $160,000.00 in past pain and suffering, $60,000 in future pain and suffering, for a total award of $313,598.13. The net recovery for the plaintiff after applying reducing clauses for worker’s compensation payments and settlement with the underlying carrier was $257,000. Plaintiff’s Final Pre-Trial Demand: $650,000 Defendant’s Final Pre-Trial Offer: $100,000 Verdict: $257,000 For more information, contact Rick E. Hills at [email protected] |