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News from Around the State: Trials and Verdicts Summer 2024 The WDC regularly publishes notable trial verdict results in the Wisconsin Civil Trial Journal and on its website. If you or someone you know has had a civil trial recently, we would like to include information about the results in our next issue. We are looking for all results, good or bad. Submissions can be published anonymously upon request. Please submit your trial results directly to the WDC Journal Editor, Attorney Vincent Scipior, at [email protected]. Please include the following information:
______________________________________________________________________________ Dawn M. Utphall, et al. v. Logan G. Miller, et al. Eau Claire County Case No. 22-CV-10 Trial Dates: April 16-17, 2024 Facts: Plaintiff claimed to have suffered injuries to her head, neck, back, and left shoulder because of a rear-end motor vehicle accident in Eau Claire on July 30, 2020. Plaintiff originally sought approximately $70,000 in past and future medical expenses, as well as $40,000 in lost wages. Plaintiff’s permanency claim was supported by her orthopedic surgeon. At Trial: Plaintiff made the strategic decision at trial to not seek any award for her medical specials and instead asked the jury to award her for her lost wages and $300,000 in past and future pain and suffering. After deliberation, the jury awarded Plaintiff $1,200 in past pain and suffering, $0 in future pain and suffering, and $562 in lost wages, resulting in a total award of $1,762. Verdict: $1,762 For more information, contact Chester A. Isaacson at [email protected]. ______________________________________________________________________________ Lilly M. Cousineau, et al. v. Rural Mut. Ins. Co., et al. Dodge County Case No. 21-CV-355 February 19-21, 2024 Facts: Thirteen-year-old plaintiff was bitten and scratched by her neighbor’s dog, a Siberian husky, when she was nine years old. At the time of the incident, the dog was leashed in the insured’s backyard. Plaintiff regularly visited the insured’s residence to play with her daughters. Plaintiff’s grandmother was responsible for supervising plaintiff at the time of the incident. As a result of the incident, plaintiff sustained a laceration to her face which left permanent scarring. Upon arriving to the emergency room, plaintiff also suffered a paradoxical reaction to the medication she initially received and required emergent sedation to calm her sufficiently for purposes of treatment. Issues for Trial: Liability and damages were contested. In addition to plaintiff’s negligence claim, defendants brought third-party claims against the plaintiff’s grandmother for negligent supervision and contribution. At Trial: Plaintiff’s treating provider, Dr. Kim, testified at trial that the incident may have been “provoked.” He noted in the records that plaintiff suffered a “questionable provoked dog bite.” Although he could not recall treating the plaintiff, he testified that such wording indicates the bite may have been provoked, such as when someone goes up and kicks a dog. At trial, plaintiff testified that she was self-conscious about her scar and suffered bullying at school because of it. It was hard to see plaintiff’s scar from counsel’s table in the courtroom. Plaintiff’s retained plastic surgeon, Dr. Korkos, testified that plaintiff needed a scar revision procedure followed by microneedling and/or laser treatments at a cost of approximately $7,500. At closing, plaintiff’s counsel asked the jury for $5,598.21 in past medical expenses, $300,000 for past pain and suffering, $7,500 for future medical expenses, and did not specify an award for future pain and suffering. Defense counsel asked the jury to award $5,598.21 in past medical expenses, $7,500 for future medical expenses, $15,000 for past pain and suffering, but did not specify a figure for future pain and suffering. Instead, defense counsel implored the jury not to tell the minor plaintiff that she was disfigured through their verdict. After deliberations, the jury found the defendant 80% causally negligent, the plaintiff 20% causally negligent, and assigned no blame to plaintiff’s grandmother. For damages, the jury awarded $5,598.21 for past medical expenses, $30,000 for past pain, suffering, and disability, and $40,000 for future pain, suffering, and disability, for total damages of $75,598.21, and a net recovery of $60,478.57. Plaintiff’s Final Pre-Trial Demand: $100,000 Defendant’s Final Pre-Trial Offer: $50,000 Verdict: $60,478.57 For more information, contact William A. Brookley at [email protected]. ______________________________________________________________________________ Jacqueline A. Robers, et al. v. Ultra Mart Foods, LLC d/b/a Pick ‘N Save, et al. Racine County Case No.: 22-CV-791 Trial Dates: May 7-8, 2024 Facts: This was a slip-and-fall accident at a Pick ‘N Save store. In August 2020, plaintiff was in the checkout line while an employee was stocking bags of ice in the cooler. The employee had a pallet of ice bags and pounded each bag on the mat in front of the cooler before placing it in the cooler. Surveillance video showed some ice cubes falling out of the bags and onto the concrete floor. The employee picked up most of the ice cubes but did not wipe the concrete floor or put up a wet floor sign. As the plaintiff was walking out of the store, she slipped and fell. Plaintiff claimed a broken ankle and CRPS. Her past medical specials were $25,194.66. She asserted claims against the store for negligence and a violation of the Safe Place Statute. In addition, her husband brought a loss of consortium claim. Issues for Trial: Liability and damages were contested. At Trial: During trial, the plaintiff testified that she did not observe the condition of the floor prior to her slipping and did not see the employee stocking the ice cooler. She further testified that she sustained a left ankle fracture/sprain and had ongoing pain complaints because of CRPS. She testified that every step she takes she feels pain and that her condition has not improved. During cross-examination, the plaintiff’s medical records were shown where she reported low levels of pain and was pleased with her progress during her recovery period. Cross-examination also revealed that the plaintiff recently lost weight from walking and was walking a significant amount nearly every day. The plaintiff’s husband testified and generally described how the injury impacted the plaintiff’s day-to-day living. He specifically mentioned her difficulties with attending to normal tasks she was able to perform before the accident. The plaintiff’s physician, Dr. Jensen, opined on causation and damages and testified about the anticipated impact the injury and pain complaints the plaintiff will experience for the remainder of her life. Two Pick ‘N Save employees testified. The assistant store manager who completed the Incident Report and Customer Statement but did not witness the accident testified about store policies and procedures regarding floor maintenance. She conceded that she would have preferred that the ice stocker wipe the floor. The other employee had her back to the accident; therefore, she did not witness what happened. Her testimony centered on responding to the scene and using numerous paper towels to clean up water on the ground around the area where the plaintiff slipped. Notably, the actual employee who stocked the ice cooler could not be located. He was a college student who worked at the store temporarily. The defense argued that the slip and fall was an accident. Further, the defense was based upon what the store did do such as having a mat in front of the cooler to soak up excess liquid, having a cardboard base on the ice bag pallet to soak up condensation, the use of pallet wrap to contain any condensation or liquid, and finally the employee’s efforts at picking up ice cubes that did fall on the floor in a timely manner. During closing arguments, plaintiffs’ counsel asked the jury to find the defendant 100% at fault and award $25,185.66 for past medical treatment, $150,000 to $200,000 for past pain and suffering, and $230,000 for future pain and suffering. Plaintiff’s counsel did not recommend an amount for the loss of consortium claim. The defense argued that neither party was negligent and alternatively, if the jury believed someone was at fault, then both parties were 50% at fault. For damages, defendants suggested that the jury award all of plaintiff’s past medical expenses ($25,185.66), $30,000 for past pain and suffering, and $15,000 for future pain and suffering. The defense told the jury not to award anything for the loss of consortium claim. After about two hours of deliberating, the jury returned a no negligence verdict. For the damages questions, the jury awarded $25,185.66 for past medical treatment, $40,000 for past pain and suffering, and $23,000 for future pain and suffering. The jury did not award anything for the plaintiff’s husband’s loss of consortium claim. Verdict: $0 For more information, contact Matthew L. Granitz at [email protected] or Madeline K. Weston at [email protected]. ______________________________________________________________________________ Bertha Estrada, et al. v. Artisan and Truckers Cas. Co., et al. Milwaukee County Case No. 21-CV-2741 Trial Dates: May 6-8, 2024 Facts: This case arose from a 2018 automobile accident. The accident occurred when the defendant pulled out from a stop sign and struck the plaintiff’s vehicle. The plaintiff had the right-of-way. The layout of the intersection made it difficult for either driver to see the other. The defendant testified he stopped at the stop sign and looked but could not see traffic coming from his right because of parked vehicles on the roadway. The plaintiff testified that as she approached the intersection, she was only looking straight ahead and did not reduce her speed even though she could not see down the intersecting road. As a result of the accident, the plaintiff alleged an aggravation to her pre-existing knee arthritis, a torn right rotator cuff, and an undefined injury to her wrists. The plaintiff had approximately $57,000 in past medical bills that she related to the accident. Artisan and Truckers Casualty Company offered its $25,000 policy limit over two years before the trial occurred, but plaintiff would not release the insured. Issues for Trial: Liability and damages were at issue. At Trial: Plaintiff’s medical expert was Dr. Ryan Kehoe. Dr. Kehoe testified that the plaintiff had a permanent aggravation to her pre-existing knee arthritis (even though plaintiff testified that her knee pain resolved following an injection) and that the plaintiff sustained a rotator cuff tear in the accident. The plaintiff did not provide any prior medical records or her deposition transcript for Dr. Kehoe to review prior to his trial testimony. Plaintiff’s past medical records noted some history of knee and shoulder issues. Defendant’s medical expert was Dr. Thomas Grossman. Dr. Grossman testified that the plaintiff sustained contusions and lacerations to her wrists, knees, and shoulders in the accident and related twelve weeks of care. During closing arguments, the plaintiff argued for 100% negligence against the defendant and asked the jury to award her claimed past medical bills of $57,000, $100,000 for past pain and suffering, and $75,000 for future pain and suffering. The defense argued that the accident was just that, an accident since both drivers faced substantially similar circumstances in that neither could see each other. In the alternative, defendants argued that each driver had equal responsibility for the accident since both violated a rule of the road (the defendant failed to yield the right of away and the plaintiff failed to reduce her speed even though she had an obstructed view of the intersection). For damages, the defense asked the jury to award $15,590.37 in past medical bills and a reasonable amount for past pain and suffering in the range of $4,500 to $7,500. The defendants further argued that the jury should not award any amount for future pain and suffering as it was not supported by the evidence at trial. The jury assessed 70% negligence against the defendant and 30% against the plaintiff. It awarded $20,500 in past medical bills, $7,500 for past pain and suffering, and $0 for future pain and suffering. Verdict: $19,600 For more information, contact Amy Freiman at [email protected]. ______________________________________________________________________________ Jacek Salachna v. Marten Transport, Ltd., et al. Barron County Case No. 21-CV-316 Trial Dates: January 24-26, 2024 Facts: The plaintiff, a 53-year-old truck driver from Glendale Heights, Illinois, was sleeping in the elevated bunk of his semi tractor-trailer in the parking lot of McCains Foods in Rice Lake when his trailer was struck by another semi tractor-trailer driving through the parking lot. Plaintiff alleged that he was knocked out of his elevated bunk and onto the floor of his cab causing injuries to his right shoulder, right elbow, neck, low back, and right knee. Following the accident, plaintiff underwent three surgeries on his left knee, facet and caudal blocks at L4-5 and L5-S1, and disc compression and biacuplasty of the L4-5 and L5-S1 vertebrae. Issues for Trial: Prior to trial, the defense stipulated to negligence. The only issues for trial were causation and damages. At Trial: Defense expert Robert Wozniak of Skogen Engineering calculated the direction and forces of the impact on the cab of plaintiff’s semi and presented his conclusions with multiple animations depicting movement of the two trucks before, during, and after impact. Plaintiff’s medical experts were Dr. Ronald Michael MD, Chicago, Illinois and Hammond, Indiana (back) and Dr. Thomas Poepping, MD, Elmhurst, Illinois (knee). Defendant’s medical experts were Dr. Anthony Bottini MD, Woodlake Medical Management, Minneapolis, Minnesota (back), Dr. Steven Moen MD, Woodlake Medical Management, Minneapolis, Minnesota (knee), and Barbara King, Nursevalue, Inc., Mount Carroll, Illinois (reasonable value of claimed medical expenses) During closing arguments, plaintiff asked the jury to award $751,359 in past medical expenses, $700,000 for future medical treatment, $79,602 for lost wages, and $600,000 for future loss of earning capacity. The jury found that the defendant’s negligence was not a cause of injury to the plaintiff and awarded no damages. Plaintiff’s Final Pre-Trial Demand: $890,000 Defendant’s Final Pre-Trial Offer: $125,000 Verdict: $0 For more information, contact Eric D Carlson at [email protected] or Donald H. Carlson at [email protected]. ______________________________________________________________________________ Julie Defrance, et al. v. Jessica B. Sealock, et al. Outagamie County Case No. 22-CV-1126 Trial Dates: May 20-23, 2024 Facts: This case involved a T-bone accident that occurred as the defendant driver pulled out of a parking lot in front of the plaintiff. As a result of the accident, plaintiff was claiming a concussion, left shoulder injury resulting in arthroscopic surgery and then total shoulder replacement, traumatic brachial plexus stretch, and neck and back muscle sprains/strains. Her past medical bills were $144,000. Issues for Trial: Liability was admitted prior to trial. At Trial: The experts who testified for plaintiff at trial were Dr. Amy Romandine-Kratz, MD (primary care provider), Resa Malloy, MPT (physical therapy), Dr. Benjamin Zellner, MD (orthopedist who performed the shoulder scope), and Dr. Shawn Hennigan (orthopedist who performed the arthroplasty). Plaintiff also called the deputy sheriff and damage estimator to testify. All of the witnesses testified live. The defense had Dr. Thomas Viehe, MD (orthopedist), Dr. Marc Novom, MD (neurologist), and Andrew Rentschler, PhD (biomechanical engineer) testify. During closing arguments, the plaintiff did not suggest any specific numbers. The defense suggested $5,500 in past medical expenses, $3,000 to $5,000 for past pain and suffering, and $0 for future pain and suffering. The jury awarded $5,000 for past medical treatment, $1,000 for past pain and suffering, and $0 for future pain and suffering. Verdict: $6,000 For more information, contact Joseph Ryan at [email protected]. ______________________________________________________________________________ Manuel de Jesus Reyes Avila, et al. v. Hastings Mut. Ins. Co., et al. Lafayette County Case No. 22-CV-96 Trial Dates: January 23-24, 2024 Facts: Plaintiff passed the defendant farmer’s combine in a no-passing zone. The farmer made a left turn as the plaintiff was passing, resulting in a bad accident. Issues for Trial: Liability and damages were contested. Issues at Trial: The jury found plaintiff causally negligent for the accident, the defendant not negligent, and awarded $0 in past pain, suffering and disability. There were no dissenting jurors. Verdict: $0 For more information, contact Paul D. Curtis at [email protected]. ______________________________________________________________________________ Marcus J. Moths v. Am. Fam. Mut. Ins. Co., et al Milwaukee County Case No. 21-CV-1747 Trial Dates: April 8-15, 2024 Facts: This case involved three motor vehicle accidents that occurred over the course of three years. The plaintiff pursued a theory of indivisible injuries against the defendants in all three car accidents. Plaintiff was seeking $224,706.40 in past medical expenses and $228,000 for future medical expenses for an alleged permanent aggravation of pre-existing neck and low back injuries. Issues for Trial: The parties stipulated to liability for all three car accidents. Prior to trial, the plaintiff demanded a total of $3 million from all defendants. One defendant settled out for its $250,000 policy limit, and the remaining two defendants offered a total of $370,000. At Trial: The jury awarded a total of $524,000, apportioned among the three car accidents. The damages apportioned to the two non-settling defendants were significantly less than their respective last settlement offers. For more information, contact Joseph M. Mirabella at [email protected]. ______________________________________________________________________________ Agnes Duening, et al. v. Wilco Cabinet Makers, Inc., et al. Brown County Case No. 22-CV-1516 Trial Dates: May 6-9, 2024 Facts: On January 9, 2020, 55-year-old Agnes Duening walked from the parking lot, across the sidewalk and into the defendant’s showroom to pick out cabinets for a bathroom remodel project. Earlier that day it had rained and/or misted off and on and the sidewalk was wet with no observable ice upon entry. When she came out less than an hour later to get her phone out of her car, she slipped and fell, fracturing her left distal femur (open/comminuted). She had already had a total knee replacement surgery on the left knee seven months prior but had returned to work without restrictions (infusion/cancer nurse) approximately five months before her fall. Ultimately there was no testimony suggesting the prior total knee replacement had a role in her fall nor was there testimony that it was adversely affected by the femur fracture. Plaintiff underwent an ORIF the day of the fall but ultimately—after much physical therapy in Wisconsin and in Arizona—developed a nonunion requiring two more surgeries approximately two years and two months later—one to remove the old hardware and check for infection (none) and one to insert a titanium rod and screws into the femur. Plaintiff was an infusion nurse whose husband, a consortium plaintiff, had just the day before her fall announced his intention to retire. They already had a winter/vacation home in Arizona. She testified she had intended to increase her 27 hours a week schedule to 40 after her husband retired and to stay in nursing another 10 years as it was her passion. The Duenings moved full-time to their Arizona home in September 2020 to avoid future ice encounters, especially given her long recovery and ongoing claim that she tires easily, cannot walk/shop more than an hour without fatiguing, and has to take stairs one by one. Plaintiff’s treating surgeon did not place any restrictions on her. Plaintiff underwent a functional capacity evaluation (FCE) with a physical therapist in Arizona who deemed her totally disabled from all work. The defense had an independent medical examination performed by Dr. Thomas Viehe, MD due to suggestions during discovery that her treating surgeon told her she needed a new knee replacement as a result of this fall (ultimately her surgeon did not offer this opinion). Dr. Viehe offered some restrictions which took her out of her prior job but left her employable in the health care field, including many remote options (plaintiff claimed she could not sit more than 15 minutes at a time and got up often during trial to stand). Plaintiff’s vocational expert Bruce Schuyler calculated her past wage loss as $326,820 and her future loss of earning capacity as $364,530. Defense vocational expert Dr. Leanne Panizich calculated past wage loss of $190,965.60 and future loss of earning capacity in the range of $60,596.64 to $69,722.64 (differential between her prior job as an infusion nurse and the remote positions available to her for 9.5 years of work life expectancy). There was an argument that any ongoing or future physical complaints were unrelated to the subject fall. Issues for Trial: Defendant denied liability under the Safe Place Act and argued no actual or constructive notice of the apparent slippery patch on which plaintiff fell. Defendant had an employee who checked all entrances at specific intervals and who did not slip during pre-fall walkarounds that day but threw salt on his three prior walkarounds of the area in case freezing occurred. Plaintiff’s interior designer (who accompanied her to the store that day) and defendant’s salesman, both of whom assisted her after her fall, did not see ice nor did they slip while assisting her. Plaintiff testified that one of them was slipping and the responding emergency personnel were slipping (interior designer and salesman both denied all of this). Prior to trial, the parties stipulated to $281,240.63 in past medical expenses. At Trial: During closing arguments,plaintiff asked the jury to award the $281,240.63 in past medical expenses that were stipulated to, $326,820 for lost wages, $364,530 for future loss of earning capacity, $1.5 million for past pain, suffering, and disability, and $500,000 for future pain, suffering, and disability. In contrast, the defense suggested $190,965.60 for lost wages, $0 to $69,722.64 for future loss of earning capacity, $0 for future medical expenses, $100,000 to $200,000 for past pain, suffering, and disability, and a “lesser amount” for future pain, suffering, and disability. The jury found neither side negligent and awarded $281,240.63 for past medical expenses, $220,000 for lost wages, $29,000 for future loss of earning capacity, $7,000.00 for future medical expenses, $180,000 for past pain, suffering, and disability, and $50,000 for future pain, suffering, and disability (for total damages of $767,240.63). In addition, the jury awarded $10,000 to plaintiff’s husband on his loss of consortium claim (during closing arguments, plaintiff requested $50,000 and the defense suggested $0 to $5,000). Plaintiff’s Final Pre-Trial Demand: Plaintiff: $650,000; Plaintiff’s husband: $24,999 Defendant’s Final Pre-Trial Offer: $300,000 Verdict: $0 For more information, contact Heather L. Nelson at [email protected]. ______________________________________________________________________________ Joy Popke, et al. v. Tri County Chiropractic, S.C., et al. Waupaca County Case No. 20-CV-206 Trial Dates: January 22-25, 2024 Facts: This was a chiropractic malpractice case. The 55-year-old patient claimed that a chiropractor caused two compression fractures during a spinal adjustment. The plaintiff argued that the chiropractor was negligent in both his treatment and in providing informed consent. The patient had an x-ray and CT scan in June due to a low back injury that did not show compression fractures at L4 or L5. The chiropractor provided treatment in September, and radiology in October showed compression fractures at L4-L5. The defense argued that the plaintiff had undiagnosed severe osteoporosis and a history of compression fractures, including one in June at T12. Once a person with osteoporosis has one compression fracture, they are five times more likely to have more without any trauma. The defense further argued that because plaintiff had not had an MRI in June it was possible she had compression fractures at L4 and L5, which were not seen on the CT scan. Moreover, the defense contended that plaintiff had multiple compression fractures long after the treatment with the chiropractor stopped. At Trial: The jury returned a unanimous verdict for the defense, finding no negligence. The jury also answered the damage questions and assigned $0 for damages. Verdict: $0 For more information, contact Linda Vogt Meagher at [email protected]. ______________________________________________________________________________ Estate of Jennifer Jawson’s Unborn Child, et al. v. Armor Correctional, et al. WIED Case No. 19-CV-1008 Trial Dates: February 26-28, 2024 Facts: This was a medical malpractice and civil rights case. Jennifer Jawson was eight months pregnant and incarcerated in the Milwaukee County Jail for violating her probation for using cocaine. One week into the incarceration, jail staff were unable to find a heartbeat for the baby. The baby was stillborn. Jawson contended that she was using methadone before she entered the jail and that the jail doctor failed to make sure she got to the methadone clinic. There was a five-day delay. The defense argued that the doctor put in an order for transfer to the methadone clinic. Also, many correctional institutions in the United States abruptly stop methadone when a person is incarcerated and that does not cause stillbirth. Furthermore, the defense contended that the studies show that stopping methadone does not cause harm to the fetus. Finally, the defense contended that placental pathology revealed that the placenta was too small for the size of the baby, which was very large due to plaintiff’s uncontrolled diabetes. The plaintiff had only had one prenatal visit during her pregnancy and was not testing her blood sugar or taking her medication on a regular basis. At Trial: The jury returned a unanimous verdict for the defense, finding that the jail doctor was neither deliberately indifferent nor negligent. Verdict: $0 For more information, contact Randall Guse at [email protected] or Linda Vogt Meagher at [email protected] |