California Vol.

17 Issue 2 • January 1, 2018

Motor Vehicle Cases of Note

Forklift operator failed Medical Malpractice — Failure to Monitor Los Angeles County
Defense: Pressure sores due to unavoidable medical conditions . . . . . . . 5
to yield to pedestrian:
Premises Liability — Dangerous Condition Los Angeles County
plaintiff’s counsel Husband’s horseplay with ice caused wife’s fall, defense argued . . . . . . . 8

Employment — California Labor Code Los Angeles County

Verdict $10,897,637
Plaintiff claimed he was underpaid and harassed at work . . . . . . . . . . . . 9
Cobb v. County of Los Angeles
Contracts — Breach of Contract Orange County
Los Angeles County Superior Court, Defense argued store refused to sign contracts, ruined copiers . . . . . . . 11
Los Angeles
Premises Liability — Dangerous Condition of Public Property San Diego County
Plaintiff’s Attorneys Steven R. Vartazarian (lead);
Sidewalk fall caused breast implants to rupture: plaintiff . . . . . . . . . . . 13
The Vartazarian Law Firm, APC; Sherman Oaks, Calif.;
and William A. Daniels, Jr.; Daniels Law Firm, PC;
Sherman Oaks, Calif. Medical Malpractice — Failure to Monitor Sacramento County
Patient not harmed by required ankle fusion, defense argued . . . . . . . . 14
Defense Attorneys Vanessa A. Evangelista and
Tomas A. Guterres; Collins, Collins, Muir + Stewart, LLP;
Civil Rights — Wrongful Conviction U.S. District Court, Central District
South Pasadena, Calif.
Detectives failed to turn over exculpatory evidence: suit . . . . . . . . . . . . 16
Full report on page 6
Civil Rights — ADA — School U.S. District Court, Central District
Student denied extracurricular activity and male aide: plaintiffs . . . . . 18

Premises Liability — Negligent Repair and/or Maintenance Undocketed

Plaintiff claimed ongoing pain from ankle fracture . . . . . . . . . . . . . . . . 20
VerdictSearch California table of contents

Southern San Diego County Undocketed

PREMISES LIABILITY
Los Angeles County statewide
Dangerous Condition of Public Property

MEDICAL MALPRACTICE PREMISES LIABILITY

Verdict $84,924............................................................ 13
Negligent Repair and/or Maintenance
Failure to Monitor

Mediated Settlement $400,000...................................20

Verdict Defense..............................................................5 Central

MOTOR VEHICLE
Sacramento County et al...

Pedestrian
Attorney Services Directory..........................................22
MEDICAL MALPRACTICE
Verdict $10,897,637........................................................6
Failure to Monitor Index............................................................................. 24

PREMISES LIABILITY
Verdict Defense............................................................14

Dangerous Condition

Verdict Defense..............................................................8 Federal

EMPLOYMENT
Central District

California Labor Code

CIVIL RIGHTS

Verdict $785,967............................................................9
42 USC 1983

Orange County Settlement $15,000,000...............................................16

CONTRACTS CIVIL RIGHTS

correction policy: We urge readers to report any

Breach of Contract ADA factual errors. A correction will be prominently
placed in an upcoming issue. Please telephone
Tim Heinz, editor, at 212-457-9562, or send an
Decision $124,678......................................................... 11 Settlement $1,000,000................................................18 e-mail to Theinz@alm.com.

VerdictSearch California (ISSN 1545-1984 USPS 288-720) is published weekly except the first week of July, the second week of September, fourth week of November and third week of December by ALM Media Properties, LLC.,
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January 1, 2018 www.verdictsearch.com 3

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VerdictSearch California
Southern
Los Angeles Count y
MEDICAL MALPRACTICE
Failure to Monitor — Nurse — Failure to Detect — Elder Abuse
Defense: Pressure sores due to
unavoidable medical conditions
Verdict Defense
Case Gevorg Haroutunyan through his
Guardian ad Litem, Ruzanna Khachatryan
v. CHA Hollywood Medical Center L.P.
dba Hollywood Presbyterian Medical
Center, Gem Medical Management LLC,
and Does 1 through 200, No. BC640891
Court Superior Court of Los Angeles County,
Los Angeles
Judge Frederick C. Shaller
Date 10/27/2017
Plaintiff
Attorney(s) Roland C. Colton, Peck Law Group,
Van Nuys, CA
Adam J. Peck, Peck Law Group,
Van Nuys, CA
Defense
Attorney(s) Cecille L. Hester (lead), Hester Law
Group, APC, Glendale, CA
(CHA Hollywood Medical Center L.P.)
Lesvia M. Alvarado, Hester Law Group, APC,
Glendale, CA (CHA Hollywood Medical
Center L.P.)
None reported (Gem Medical
Management LLC)
Facts & Allegations On March 18, 2016, plaintiff
Gevorg Haroutunyan, 81, a retiree, was placed on BiPAP
therapy at Hollywood Presbyterian Medical Center, in Los
Angeles, after there was no response to progressive respiratory
therapy and oxygenation methods were unsuccessful.
Haroutunyan was previously admitted to the emergency
department at Hollywood Presbyterian Medical Center for a
humeral fracture to the right arm on March 15, 2016, which
was one day before his 81st birthday. The fracture occurred
at home, where Haroutunyan lived with his daughter and
son-in-law. Upon his admission to the hospital, he was
noted to be dehydrated and have acute renal failure and
respiratory distress. He was also noted to have a long history
of multiple medical conditions, including end-stage chronic
obstructive pulmonary disease, Parkinson’s disease, diabetes
mellitus type 2, benign prostatic benign hypertrophy, obesity,
January 1, 2018 www.verdictsearch.com
Southern
moderate Alzheimer’s dementia, coronary artery disease, and
a pacemaker.
Two days after his admission, a closed reduction was
performed, but Haroutunyan’s respiratory condition and
renal function continued to worsen. He was subsequently
placed on BiPAP therapy on March 18, 2016, after there
was no response to progressive respiratory therapy and
oxygenation methods were unsuccessful, but his perfusion
was poor, so intubation was recommend. However, the
family refused. The next day, it was noted that Haroutunyan
had some areas of deep tissue injury, and excoriation on his
lower back and sacral area. The family eventually agreed
to have Haroutunyan intubated in the late afternoon
of March 22, 2016. However, when Haroutunyan was
intubated and the BiPAP mask was removed, it was noted
that Haroutunyan had developed a deep tissue injury on
his nose.
Haroutunyan, through his guardian ad litem, Ruzanna
Khachatryan, sued the operator of Hollywood Presbyterian
Medical Center, CHA Hollywood Medical Center L.P., and
a subcontractor that provided respiratory therapists for the
hospital, Gem Medical Management LLC.
Gem Medical Management ultimately settled out of the
case on the second day of trial.
Plaintiff’s counsel argued that the deep tissue injury
that developed on Haroutunyan’s nose was the result of
respiratory therapists from GEM Medical Management not
properly monitoring the BiPAP mask and that the respiratory
therapists and GEM Medical Management were acting as
agents of the hospital. Counsel contended that a protective
barrier should have been used when the mask was initially
placed, but that it was not. Further, plaintiff’s counsel argued
that the mask was not properly removed for “rest” periods
and that records that reflected mask changes were fraudulent
or erroneous.
As to the sacral/back wounds, plaintiff’s counsel argued
that the hospital’s nursing staff failed to properly assess
(pursuant to the Braden Score), Haroutunyan’s potential
for development of skin breakdown and, therefore, failed
to institute appropriate preventative measures. Specifically,
counsel contended that the nursing staff failed to keep
Haroutunyan clean and failed to timely reposition
Haroutunyan every two hours.
Thus, plaintiff’s counsel argued that all of the failures in
care were not only negligent, but constituted elder abuse
and/or neglect.
Defense counsel for CHA Hollywood Medical Center
contended that both the device-related pressure injury and
pressure sores to Haroutunyan’s nose and sacrum/back
were the result of unavoidable medical conditions that
pre-existed Haroutunyan’s hospitalization, including his
end-stage COPD, which ultimately required a tracheostomy
and ventilator dependency to survive. Thus, counsel argued
that all appropriate measures were taken by both the
respiratory care staff and nursing staff to prevent skin
breakdown, but that in order to save Haroutunyan’s life, the
5
Southern VerdictSearch California
patient had to be placed in a position in bed (bed raised —
known as semi-fowlers), which caused additional pressure to
Haroutunyan’s lower back and sacrum in order to prevent him
from decompensating. Defense counsel also contended that
offloading was done to alleviate pressure, mask changes were
performed, and routine skin checks were done on the nose in
relation to the BiPAP mask. In addition, counsel contended
that a protective barrier was placed on Haroutunyan the day
after the mask was placed to prevent skin breakdown, but
that, ultimately, the wounds developed despite the best of care.
Injuries/Damages bedsore/decubitus ulcer/pressure
sore; buttocks; lower back; scar and/or disfigurement; scar
and/or disfigurement, face
Haroutunyan sustained pressure sores, which are alternately
termed “decubitus ulcers” or “bedsores,” to his nose, lower
back and sacrum. He remained in the Intensive Care Unit at
the hospital for two months, through May 3, 2016. During
that time, he required a tracheostomy and, thereafter, was
ventilator dependent. As his medical condition ultimately
stabilized and his oxygenation was able to be sustained after
the tracheostomy, Haroutunyan’s deep tissue wounds healed.
At the time of trial, Haroutunyan was suffering from
end stage Parkinson’s disease and continues to be ventilator
dependent while in the care of Hollywood Presbyterian
Subacute Care Center. As for the deep tissue injuries,
Haroutunyan claimed that his wounds were completely
healed by June 2016, but that he was left with permanent
scarring to his nose, around the nostril area, and scarring to
his sacrum, buttocks and lower back. However, the scars do
not restrict his movement.
Thus, Haroutunyan sought recovery of general damages
and punitive damages.
Result The jury returned a defense verdict. It found that
CHA Hollywood Medical Center LP was neither negligent,
nor did it commit elder abuse and/or neglect.
Demand $750,000
Offer $250,000
Insurer(s) CNA for CHA Hollywood Medical
Center L.P.
Trial Details Trial Length: 19 days
Trial Deliberations: 1 hour
Jury Vote: 12-0
Jury Composition: 11 male, 1 female
Plaintiff
Expert(s) Thijs Janssen, R.T., respiratory therapy,
San Diego, CA
Lois Ross, R.N., nursing, Reno, NV
Roger B. Schechter, M.D., emergency
medicine, Escondido, CA
6 www.verdictsearch.com
Defense
Expert(s) Sandra Higelin, R.N., nursing,
Palm Springs, CA
Abraham “Avi” Ishaaya, M.D., pulmonology,
Los Angeles, CA
Trinidad Valencia, R.T., respiratory therapy,
Torrance, CA
Editor’s Note This report is based on information that
was provided by defense counsel for CHA Hollywood
Medical Center L.P. Plaintiff’s counsel did not respond to the
reporter’s phone calls and defense counsel for Gem Medical
Management LLC was not asked to contribute.
–Priya Idiculla
Featured Verdict
MOTOR VEHICLE
Pedestrian — Workplace — Forklift — Crosswalk — Single Vehicle
Forklift operator failed to yield
to pedestrian: plaintiff’s counsel
Verdict $10,897,637
Case James Cobb v. County of Los Angeles, John
Hill, and Does 1 through 15, No. BC582690
Court Superior Court of Los Angeles County,
Los Angeles
Judge Anthony J. Mohr
Date 8/24/2017
Plaintiff
Attorney(s) Steven R. Vartazarian (lead),
The Vartazarian Law Firm, APC,
Sherman Oaks, CA
William A. Daniels, Jr., Daniels Law Firm,
PC, Sherman Oaks, CA
Defense
Attorney(s) Vanessa A. Evangelista, Collins, Collins,
Muir + Stewart, LLP, South Pasadena, CA
Tomas A. Guterres, Collins, Collins, Muir +
Stewart, LLP, South Pasadena, CA
Facts & Allegations On the morning of Jan. 15, 2015,
plaintiff James Cobb, 34, a sales worker for a party rental
company, parked his vehicle on Zonal Avenue, near LAC+USC
Medical Center, in Los Angeles, and exited his vehicle. As he
was walking toward the Pappas Quad in a marked pedestrian
crosswalk, he was struck from behind by a forklift operated by
John Hill, who worked for the LAC+USC Medical Center. The
impact caused Cobb to fall forward. The forklift to then rolled
January 1, 2018
VerdictSearch California Southern

over Cobb’s legs and trapped him underneath. Although Hill Demand None reported
attempted to free Cobb by placing the forklift into forward Offer $5 million prior to closing arguments
and reverse, and by raising and lowering the forks, Hill’s
actions caused further injuries to Cobb. Eventually, bystanders Trial Details Trial Length: 3 weeks
tipped the forklift and freed Cobb. Trial Deliberations: 3 hours
Cobb sued Hill and Hill’s employer, the county of Los Jury Vote: 10-2
Angeles. Cobb alleged that Hill was negligent in the operation
Plaintiff
of the forklift and the county was liable for Hill’s actions.
Expert(s) Gary B. Briskin, D.P.M., podiatry surgery,
Hill was ultimately dismissed from the case, and the matter
Santa Monica, CA
went to trial against the county only.
Paul Broadus, M.A., vocational rehabilitation,
Plaintiff’s counsel contended that Hill failed to yield to
Claremont, CA
Cobb and that Hill did not honk his horn to alert Cobb of
Tamorah G. Hunt, Ph.D., economics,
his approach.
Santa Ana, CA
Defense counsel contended that Cobb was distracted by
Robert P. Jasinski, forklifts, Danville, CA
using a cell phone just before the incident. Counsel also
Alvin Lowi, III, P.E., accident reconstruction,
contended that Hill honked his horn, but that even after
El Segundo, CA
hearing it, Cobb stepped into the forklift’s path instead of
stepping away from it. Thus, defense counsel argued that Defense
Cobb was comparatively at fault for the incident. Expert(s) Edward L. Bennett, M.A., vocational
rehabilitation, Santa Barbara, CA
Injuries/Damages crush injury; crush injury, foot; crush
John C. Gardiner, Ph.D., biomechanical,
injury, leg; decreased range of motion; foot; fracture, toe;
Laguna Hills, CA
leg; limp; skin graft
Jeffrey L. Rosenberg, M.D., plastic surgery/
Cobb sustained crush injuries to both of his legs and feet.
reconstructive surgery, Los Angeles, CA
He also sustained fractures of the big toe on his left foot and
Anthony C. Stein, Ph.D., ergonomics/human
the pinky toe on his right foot, as well as extensive injuries
factors, La Canada, CA
to the soft tissues of both legs. He was subsequently taken to
Kendall S. Wagner, M.D., orthopedic surgery,
LAC+USC Medical Center, where he underwent skin grafting
Fullerton, CA
to both legs and a surgery to fuse the great toe of his left foot.
David J. Weiner, M.B.A., economics,
Cobb is left with a permanent limp. He alleged that as
Los Angeles, CA
a result, he cannot walk for more than an hour without
experiencing pain in his legs and feet. He claimed that since he Editor’s Note This report is based on information that
is unable to walk for more than an hour as his sales position was provided by plaintiff’s counsel. Defense counsel did not
with Classic Party Rentals required, he was given a desk job respond to the reporter’s phone calls.
that no longer entitled him to earn sales commissions.
Thus, Cobb sought recovery of past medical costs, past and –Priya Idiculla
future loss of earnings, and damages for his past and future
pain and suffering.
Old Republic General Insurance Corp., which was acting as
an intervening plaintiff, settled out of the case prior to trial.
Defense counsel argued that Cobb could have continued
his work as a sales executive at Classic Party Rentals with

@
certain accommodations.

Result The jury found that Hill was negligent and that @ VerdictSearch.com
his negligence was a substantial factor in causing harm
Verdict & Settlement Details:
to Cobb. It also found that Cobb was not comparatively
negligent. Thus, the jury determined that Cobb’s damages Access the facts on 140,000
totaled $10,897,636.61. experts, judges, attorneys, award
James Cobb $109,097 past medical cost breakdowns and more!
$83,360 past lost earnings Log on or call 1-800-445-6823 for
$905,180 future lost earnings
more information.
$2,500,000 past pain and suffering
$7,300,000 future pain and suffering
$10,897,637
Your Best Source for Verdict & Settlements News & Research

January 1, 2018 www.verdictsearch.com 7

Southern VerdictSearch California
PREMISES LIABILITY
Dangerous Condition — Negligent Repair and/or Maintenance — Store
Husband’s horseplay with ice
caused wife’s fall, defense argued
Verdict Defense
Case Glendy M. Leslie Lewis v. Vallarta
Supermarkets Inc., Daniel Food Enterprises
Inc., Gonzalez Food Enterprises Inc., and
Does 1 to 50, No. BC522042
Court Superior Court of Los Angeles County,
Pasadena
Judge Margaret L. Oldendorf
Date 8/10/2017
Plaintiff
Attorney(s) Sahar Malek, Sahar Malek Law, APC,
Beverly Hills, CA
Ron A. Rosen Janfaza, Law Offices of Ron A.
Rosen Janfaza, Beverly Hills, CA
Defense
Attorney(s) Kevin T. Dunbar (lead), Dunbar & Associates,
Rolling Hills Estates, CA
Matthew D. Derossi, Dunbar & Associates,
Long Beach, CA
Facts & Allegations On Sept. 23, 2011, plaintiff Glendy
Lewis ordered food at the register in the Taqueria Department
of the Vallarta Supermarket located at 10950 Sherman Way,
in Burbank. While she was ordering, Lewis admitted that her
then husband grabbed ice from the adjacent soda display and
placed it down her shirt. She admonished her then husband,
so he picked up the ice and placed it back in the soda display.
Lewis alleged that the occurred only once.
After completing her order, Lewis turned around and
began to walk away from the register. After taking five to
eight steps away from the register, Lewis’ foot slipped, which
caused her to stumble but not fall. She alleged that as a result,
she sustained injuries to her left knee and ankle.
Lewis sued the operators of the supermarket, Vallarta
Supermarkets Inc., Daniel Food Enterprises Inc. and
Gonzalez Food Enterprises Inc. She alleged the defendants
failed to address a dangerous condition.
Lewis claimed that she slipped on water that did not come
from her then husband’s action of putting ice down her shirt.
Plaintiff’s counsel contended that the water constituted a
dangerous condition and that simply having a soda display
with ice present created the dangerous condition.
Defense counsel contended that the water upon which
Lewis slipped, but did not fall, existed solely due to Lewis
and her then husband’s horseplay with ice. Counsel noted
that Lewis was impeached by surveillance video, which
was produced to plaintiff’s counsel during discovery, which
8 www.verdictsearch.com
showed that Lewis’ husband placed ice down her shirt, not
once, but four times. Defense counsel noted that each time,
Lewis shook out her shirt, which caused the ice to fall out
of her shirt, hit the tile floor behind her, and scatter all over
the sales floor area. In addition, defense counsel submitted
evidence of the defendants’ store inspection policies and
additional Taqueria Department inspection policies to prove
that there was a reasonable inspection policy in place that
was followed at the time of Lewis’ self-inflicted incident.
Injuries/Damages ankle; ankle, sprain/strain; knee;
strains and sprains
The trial was bifurcated. Damages were not before the court.
Lewis claimed that she suffered a sprain to her left ankle
and a painful left knee injury. She alleged that she had a
medical lien of approximately $10,000.
Result According to defense counsel, during deliberations,
multiple questions were submitted by the jury to the court
that indicated that the jury was deadlocked due to some of the
jurors having difficulty understanding the issue surrounding
the burden of proof in a civil trial. After 4 hours and 45 minutes
of deliberation, a question was presented to the judge asking
whether the jury was required to apply the “more likely to be
true than not true” burden of proof standard, or could they
find the defendant to be “strictly liable” for the plaintiff’s harm
simply because an accident had occurred in defendant’s store.
When Judge Margaret Oldendorf instructed that there was no
strict liability standard in the case and that the jury was to
apply the “more likely to be true than not true burden of proof
standard,” the jury’s deadlock ended. After another 15 minutes
of deliberation, it returned with a verdict.
The jury rendered a defense verdict. It found the defendants
were not negligent.
Demand None reported
Offer Waiver of costs in exchange for dismissal
of case (C.C.P. § 998)
Trial Details Trial Length: 4 days
Trial Deliberations: 5 hours
Jury Vote: 10-2
Post-Trial The parties agreed that in exchange for Lewis
waiving her right to appeal, the defendants would waive its
right to seek court costs and expert fees as a result of Lewis
not accepting the prior C.C.P. § 998 offer.
Editor’s Note This report is based on information that
was provided by plaintiff’s and defense counsel.
–Priya Idiculla
January 1, 2018
VerdictSearch California
EMPLOYMENT
California Labor Code — Privacy — National Origin Discrimination
Plaintiff claimed he was underpaid
and harassed at work
Verdict $785,967
Case Khaldune Seirafi v. Special-Projects
Engineering Inc., Yuan Tai Shen aka Alex
Shen, and Does 1-50, No. BC515790
Court Superior Court of Los Angeles County,
Los Angeles
Judge Marc R. Marmaro
Date 10/27/2014
Plaintiff
Attorney(s) Rhett T. Francisco (lead), The Law Offices
of Rhett T. Francisco, Encino, CA
Thomas G. Adams, The Law Offices of
Thomas G. Adams, Ventura, CA
Michelle Iarusso, Law Offices of Michelle
Iarusso, Pasadena, CA
Nareg S. Kitsinian, Kitsinian Law Firm,
Van Nuys, CA
Defense
Attorney(s) John T. Dean, Law Office of John
Theodore Dean, Corona, CA
(Special-Projects Engineering Inc.)
Stephen D. Johnson, Law Offices of
Stephen D. Johnson, Capistrano Beach, CA
(Yuan Tai Shen)
Facts & Allegations In 2008, plaintiff Khaldune Seirafi,
20, a Syrian-American, worked as an in-house, hourly, sales
and shipping worker for Special-Projects Engineering Inc.
and its owner, Yuan Tai “Alex” Shen. The business was
dealt with wholesale/retail automobile parts and high-end
automobile tuning (for vehicles such as Nissan GT-Rs and
Lamborghinis). Special-Projects Engineering and Shen have
even been featured on Jay Leno’s garage. Seirafi worked for
the company for a few months in 2008, but then was fired.
In 2009, Seirafi worked for Special-Projects Engineering
again, but after a few months, he left to work for his
brother’s business, which unfortunately failed. Then, in 2010
and 2011, Seirafi once again worked for Special-Projects
Engineering and Shen for about 15 months in a row, until his
employment was terminated on July 19, 2011.
Seirafi sued Special-Projects Engineering and Shen. Seirafi
alleged that the defendants’ actions constituted violations
of the Labor Code and his civil rights, including claims
pursuant to California’s Unruh Civil Rights Act. Specifically,
he alleged that the defendants’ actions constituted race,
national origin, and sexual orientation discrimination, as
well as workplace privacy violations.
January 1, 2018 www.verdictsearch.com
Southern
Plaintiff’s counsel contended that although Seirafi was
properly classified as an employee during his first two stints
with Special-Projects Engineering and Shen, the defendants
misclassified Seirafi as an independent contractor during
the third term that he worked for the defendants. Counsel
contended that Seirafi worked for both/each of the defendants
and that the defendants were one and the same. Thus, counsel
presented an alter ego argument during trial. Plaintiff’s counsel
argued that as a result of the misclassification, the defendants
failed to pay Seirafi minimum wage or overtime, and failed
to provide accurate itemized wage statements. Counsel also
argued that Special-Projects Engineering and Shen performed
unlawful deductions, as they took money directly out of
Seirafi’s pay because they said he made some “mistakes.” In
addition, plaintiff’s counsel argued that the defendants failed
to pay Seirafi all wages at the time of his termination.
According to plaintiff’s counsel, Special-Projects
Engineering and Shen failed to produce documents that
they were obligated to maintain and produce. Thus, counsel
argued that the defendants suppressed the documents, such
as time cards and other information, and that in light of the
defendants not producing the required documents, plaintiff’s
counsel introduced estimates of the hours Seirafi worked,
as well as some documentary evidence that Seirafi brought
in to support his estimates, including three letters from
his superiors and several e-mails that were time stamped.
Counsel argued that those documents showed that Seirafi
was performing work, and being asked by his superiors to
perform work, late into the evening.
Seirafi claimed that over the course of his multiple stints
working for the defendants, he was subjected to increasingly
harsh treatment, including having a firecracker thrown at
him, being called derogatory and offensive names, and
being forced to eat wet, medicated dog food at one point
by his superiors. He also claimed that his superiors at
Special-Projects Engineering, including Shen, forced him
to smoke marijuana until he threw up and forced him to
wear a pink trucker hat, on which his supervisors wrote
“pillow biter” and “everyone’s b-tch,” and on which they
drew erect and flaccid penises.
Seirafi further claimed that he was subjected to being secretly
video recorded in the workplace sales office by his superiors at
Special-Projects Engineering and that Shen knew about it. The
videos were then posted to YouTube and otherwise circulated
to various individuals. The videos included Seirafi telling a
story about the time he lost his virginity and talking about an
anime doll that he was given, singing “Welcome to the Jungle”,
having a fire-cracker thrown at him, and being surprised and
frightened when a co-worker shook his chair while Seirafi was
on the phone at work.
Regarding the alleged Labor Code violations, defense
counsel argued that Seirafi did not work long hours and that
he worked only four hours per day. Counsel also argued
that Seirafi could perform his job from anywhere and that
the defendants should not have to pay Seirafi because he
smoked marijuana.
9
Southern VerdictSearch California

Regarding Seirafi’s national origin claims, defense counsel
brought up the marijuana issue, accused plaintiff’s counsel
of creating the case, and blamed Seirafi for not previously
complaining about his concerns. Counsel also blamed the
previous defendants’ counsel, the defendants’ certified public
accountants, the defendants’ other employees, the defendants’
payroll processing company, and others. Defense counsel also
argued that the place of employment was a “boys place,”
where “boys will be boys,” and that Seirafi gave as good as he
got. Counsel further argued that Seirafi even instigated things
on his own, without being forced by Shen or any employee at
Special-Projects Engineering. Thus, defense counsel argued
that Seirafi was using the case as a “lottery ticket” and that
Seirafi was not damaged because he never complained to Shen
and was on video smoking marijuana.
In response, plaintiff’s counsel used various evidence in
an attempt to get past defense counsel’s argument regarding
the hours Seirafi worked. Plaintiff’s counsel also argued that
defense counsel was just bringing evidence regarding Seirafi’s
marijuana usage in an attempt to appeal to the jury’s passions,
and to try to distract the jury and avoid responsibility.
Injuries/Damages emotional distress
Seirafi now serves as a Private First Class in the U.S. Army.
However, he sought recovery for his economic loss, including
unpaid wages, and recovery of non-economic damages for his
emotional distress. He also sought recovery of statutory civil
penalties per the $50/$100 structure of Labor Code § 558
and recovery of punitive damages.
During the punitive damages phase, the defendants did not
produce some documents that they were ordered to produce,
including bank records, investment records, and information
pertaining to the Shen’s ownership interest in a $4 million
home in Bradbury. However, plaintiff’s counsel was able to
obtain and present some of the information pertaining to the
defendants’ assets as a result of searches of public records.
Plaintiff’s counsel asserted that defense counsel used the
punitive stage to try to re-argue the compensatory stage, as
they brought up the marijuana issue again and again blamed
everyone else. Defense counsel also argued that the defendants
$71,632, not including punitive damages. In addition, the
jury found for Seirafi on his workplace privacy claims and
awarded $35,000, not including punitive damages. Thus, it
awarded Seirafi $160,967.44 in total compensatory damages.
In addition, the jury found that the defendants’ actions as
both to the civil rights claims and the workplace privacy claims
constituted malice or oppression. As a result, the parties took
part in a punitive damages phase. Ultimately, the jury awarded
Seirafi $625,000 in total punitive damages, including $75,000
in punitive damages against Shen and $550,000 in punitive
damages against Special-Projects Engineering.
Thus, Seirafi’s recovery totaled $785,967.44.
Demand $250,000 plus attorney fees
(after opening statements)
Offer $5,000 (pre-trial)
Trial Details Trial Length: 15 days
Trial Deliberations: 5 hours
Post-Trial Plaintiff’s counsel anticipated that the attorneys’
fees motion would be in the range of $1 million.
During trial, it came out that there were other companies
that effectively operated as Special-Projects Engineering
and Shen and that the defendants used those companies as
financial tools, shells, and/or launderers. Plaintiff’s counsel
later moved to amend the complaint in order to add those
companies and conform to proof.
Editor’s Note This report is based on information that
was provided by plaintiff’s counsel, and defense counsel for
Shen. Defense counsel for Special-Projects Engineering did
not did not respond to the reporter’s phone calls.
–Priya Idiculla

What’s your
were financial destitute — that they were not making
any money and that only loans were keeping the business
afloat. However, plaintiff’s counsel used financial documents
to argue that Shen was siphoning very large amounts of

case worth?
money from the company and self-dealing/co-mingling. Thus,
plaintiff’s counsel argued that the defendants did not produce
the required documents because they contained negative
information about the defendants. Plaintiff’s counsel also
used the documents that they found in order to try to impeach
Shen’s testimony and introduce additional information into
evidence regarding the defendants’ assets.
Find out at
Result The jury found for Seirafi on his Labor Code claims
and awarded him $54,335.44. In doing so, the jury relied www.VerdictSearch.com
on plaintiff’s counsel estimates and documentary evidence
to award Seirafi the amount he was seeking. The jury also or call 1-800-832-1900
found for Seirafi on civil rights claims and awarded Seirafi

10 www.verdictsearch.com January 1, 2018

VerdictSearch California
Orange Count y
CONTRACTS
Breach of Contract — Intentional Torts — Conversion — Fraud
Defense argued store refused to
sign contracts, ruined copiers
Decision $124,678
Case Wholesome Choice Market, Inc. v. Digitech
Business Solutions, Inc.,
No. 30-2015-00791699-CU-BC-CJC
Court Superior Court of Orange County, Santa Ana
Judge David R. Chaffee
Date 10/19/2017
Plaintiff
Attorney(s) Daniel P. Hunt, Burbank, CA
Defense
Attorney(s) Kevin T. Dunbar (lead), Dunbar & Associates,
Long Beach, CA
Matthew D. Derossi, Dunbar & Associates,
Long Beach, CA
Facts & Allegations In 2013, plaintiff Wholesome
Choice Market Inc., a grocery store company, contacted
Digitech Business Solutions Inc. to procure four photocopy
machines for two of its grocery stores. Wholesome Choice
signed the lease agreements with a leasing company for the
four photocopy machines in January 2013 and April 2013,
but it never signed a service agreement with Digitech for it to
provide service to the photocopy machines.
After one year of service, all four photocopy machines
allegedly stopped working. Wholesome Choice subsequently
requested service to the machines, but Digitech refused
to provide further service due to a business dispute with
Wholesome Choice over two additional photocopy machines
that were being used at a different grocery store location. As
a result, Wholesome Choice paid another photocopy repair
company to service the photocopy machines at the end of the
three-year lease term, as the lease agreements required it to
restore the photocopy machines to “working order” at the
end of the lease.
Wholesome Choice sued Digitech, alleged that Digitech
breached an oral contract and that it was entitled to recover
from Digitech the cost of the money paid to the leasing
company for the two years that the photocopy machines
were inoperable.
Digitech counterclaimed against Wholesome Choice,
alleging that Wholesome Choice refused to sign the service
agreements and pay for the excess copies it made.
Wholesome Choice’s counsel claimed that in January 2013,
Wholesome Choice entered into an oral contract with Digitech
January 1, 2018 www.verdictsearch.com
Southern
for service to the photocopy machines and that the terms of
the oral contract provided that Digitech was to service the
photocopy machines for three years. Counsel contended
that during that time, Wholesome Choice was to pay for all
parts necessary to repair the photocopy machines and that
Digitech would provide all supplies, except paper, for the
photocopy machines. Plaintiff’s counsel further contended that
Wholesome Choice was allowed to make 1,250 photocopies
per month on each machine, for a total of 180,000 photocopies
on all four photocopy machines, over three years. Thus,
counsel contended that Wholesome Choice was to be charged
for any photocopies over that allowed 180,000 photocopies
at a cost of $0.01 per page and that the bill for overages was
to be submitted at the end of the three-year service period.
However, plaintiff’s counsel contended that after one year of
service, when all four photocopy machines stopped working,
Wholesome Choice had made 299,329 photocopies and that
it made a total of 490,659 by the time it returned the four
photocopy machines to the leasing company.
Digitech’s counsel contended that, beginning in 2010,
Wholesome Choice leased two photocopy machines from
Digitech’s photocopy business and that at that time, in addition
to the lease agreement for the photocopy machines, Wholesome
Choice entered into a service agreement that required Digitech
to provide service to the photocopy machines for a period of
three years and then Digitech was responsible for all parts and
supplies other than paper. Counsel contended that within that
service agreement, Wholesome Choice was allocated a certain
number of photocopies per month on each machine and that if
Wholesome Choice exceeded that amount, it was to be charged
$0.01 per page over the agreed-upon amount. Defense counsel
argued that Digitech serviced the photocopy machines for three
years and charged Wholesome Choice for photocopies that
exceeded their agreed-upon amount at regular intervals until
the service agreement was amended to include a higher number
of allowed photocopies. Then, in 2013, Wholesome Choice
contacted Digitech to discuss entering into a new lease for
four photocopy machines. Defense counsel argued that during
those discussions, Digitech informed Wholesome Choice that
unlike the prior service agreement, Wholesome Choice would
be responsible for all parts needed to repair the machines
and that Digitech would be responsible for all supplies other
than paper. Counsel contended that in the new agreement,
Wholesome Choice was allocated 1,250 photocopies per
month on each machine, or a total of 180,000 photocopies
on all four machines, for three years, whichever came first.
If Wholesome Choice exceeded that amount, it would be
charged $0.01 per page in excess of the allocated amount of
photocopies. Defense counsel contended that as it had done
in 2010, Wholesome Choice signed the lease agreements for
the four photocopy machines, but failed to sign Digitech’s
service agreements for the photocopy machines. Wholesome
Choice then took possession of the photocopy machines and
used them, but despite repeated efforts by Digitech to have
Wholesome Choice sign the service agreements, they were
never signed.
11
Southern VerdictSearch California
In keeping with the terms and conditions of the service
agreements that Wholesome Choice refused to sign, Digitech
claimed it provided service and repairs to the photocopy
machines from Jan. 31, 2013 to March 4, 2014. During that
time, Wholesome Choice made 299,329 photocopies on the
four photocopy machines. While Wholesome Choice paid for
the cost of parts to repair the photocopy machines, it refused to
pay Digitech for the 119,329 excess photocopies. Specifically,
on Aug. 17, 2016, when Wholesome Choice returned the other
four photocopy machines at the conclusion of the three-year
lease, despite its IT manager testifying at trial that all four
photocopy machines stopped working as of March 4, 2014,
plaintiff’s counsel provided documentation recording that
an additional 119,330 photocopies had been made on the
machines. Digitech’s counsel contended that Wholesome Choice
also continued to refuse to sign the service agreements and
refused to enter into new service agreements that would have
allowed it to make a higher number of photocopies on each
machine. Thus, following a meeting with Wholesome Choice’s
owner, who refused to pay Digitech for any excess photocopies
and refused to sign any service agreements, Digitech stopped
providing photocopy repair service.
In regard to its counterclaim, Digitech’s counsel contended
that in late December 2013, Wholesome Choice requested
that Digitech supply financing and service for two additional
photocopy machines to be installed at a new grocery store.
Digitech delivered the two additional photocopy machines
to Wholesome Choice, along with a lease agreement and a
service agreement. However, when Wholesome Choice refused
to sign the agreements, claiming that the “company attorney
had to review them,” Digitech began to put the two photocopy
machines back on its truck. However, Digitech’s counsel
contended that, using his long-term, prior business relationship
and friendship outside of the workplace, Wholesome Choice’s
IT manager convinced Digitech to leave the two photocopiers
in the store’s secure server room with the promise that the
photocopiers would remain in their factory shrink wrapped
state, without any toner or other supplies, and that they would
not be used or moved from that location until the contracts
were signed. Given that alleged assurance, Digitech moved
the two photocopy machines into that secure room and left
after allegedly being again assured that the contracts would be
signed that night and that Digitech would return the following
day to set up the photocopy machines with toner and other
supplies, and install them on the grocery store’s network.
One of the defense’s industry standards experts, Dave
Hamze, who was also Digitech’s owner, testified that when he
contacted Wholesome Choice on the night the two printers were
left in the secure server room, he was informed that Wholesome
Choice’s attorney had not yet reviewed the contracts, but that
they would be signed the following day. However, he claimed
that when the following day came and went without any signed
agreements, Digitech again contacted Wholesome Choice
for a status update of when the documents would be signed.
Digitech’s owner claimed that on Jan. 28, 2014, after three
weeks of attempting to obtain the signed contracts, he informed
12 www.verdictsearch.com
Wholesome Choice’s IT manager that he had sustained an
injury that required surgery and that the contracts needed to be
signed immediately, as he would be unable to return during his
convalescence period following surgery.
Digitech’s counsel argued that, unbeknownst to Digitech,
Wholesome Choice had no intention of ever signing the lease
agreement or the service agreements for the two additional
photocopy machines that were being stored in the secure
server room. Counsel contended that, instead, upon hearing
that Digitech’s owner was incapacitated, Wholesome Choice
instructed its employees to remove the photocopiers from the
server room, buy toner from another location, load it into
the machines, transport one machine up a flight of stairs,
network them to the store’s computer system, and begin
making photocopies.
Digitech’s owner claimed that, during his convalescence
period, he telephoned Wholesome Choice’s IT manager on
multiple occasions and when that individual stopped taking
Digitech’s calls, he texted the IT manager on 29 separate
occasions asking for a status on the signed contracts and
seeking assurances that the two photocopiers were still located
in the secure server room. He claimed that on each occasion,
Wholesome Choice came up with an excuse for not signing the
agreed-upon contracts. Digitech’s counsel contended that as
a result, on March 1, 2014, Digitech sent a service technician
to the grocery store to check on the status of the photocopiers
and that when the technician was denied entry to the grocery
store, Digitech’s owner immediately contacted Wholesome
Choice’s IT manager, who admitted, for the first time, that the
photocopiers were being used despite his prior assurances to
the contrary. Digitech’s owner claimed that upon hearing this,
and while still on crutches, he traveled to Wholesome Choice’s
grocery store and met with the owner of the company, who
told him that he was not going to pay Digitech for any excess
photocopies on the four photocopy machines or for the use of
the two additional photocopy machines because “if he paid
people like him, he would never get to where he was today.”
Digitech’ owner claimed Wholesome Choice’s owner then
informed him that “he better fix his machines or Digitech will
lose his house and his business.” Digitech’s owner claimed
that he realized that Wholesome Choice was never going to
pay him, so he took interim photocopy counts on the original
four photocopy machines (totaling 299,329 photocopies) plus
photocopy counts on the two additional photocopy machines
(recording that in less than two months, 7,615 color copies and
5,296 black-and-white copies were made on the first photocopy
machine and 14,856 black-and-white copies were made on
the second photocopy machine) and then removed the two
additional photocopy machines from Wholesome Choice’s
grocery store. He alleged that upon inspection of the machines
after they were removed from Wholesome Choice’s grocery
store, both machines were found to have been damaged due
to improper moving of the machines and improper installation
of toner and other supplies. Digitech’s owner further claimed
that he had no option but to sell the two damaged photocopy
machines for salvage value.
January 1, 2018
VerdictSearch California
Thus, Digitech’s counsel argued that Wholesome Choice’s
actions constituted a breach of implied in fact contract for
service to the photocopy machines.
Injuries/Damages Wholesome Choice sought recovery
for the value of two years of photocopy repair services
for the four photocopy machines. It also sought recovery
of loss-of-use damages in the amount of $970 per month
for 24 months, based on lease payments made to the
finance company for the two years that the four photocopy
machines were allegedly not operational.
In regard to the counterclaim, Digitech’s owner claimed
that he sought medical treatment for cardiac problems,
anxiety and stress as a result of the conduct of Wholesome
Choice’s owner and IT manager.
Thus, Digitech sought recovery of quantum meruit damages
at the fair market rate of $0.15 for each black-and-white
photocopy in excess of the allocated 180,000 photocopies
on the original four photocopy machines, and quantum
meruit damages at the fair market rate of $0.15 for each
black-and-white photocopy and $0.65 for each color
photocopy on the two additional photocopy machines,
totaling $46,598.85 for the 310,659 excess photocopies
made on the six photocopy machines. It also sought
recovery of conversion damages for the unauthorized use
and damage to the two additional photocopy machines,
totaling $28,079.11. In addition, it sought recovery of $50,000
for Digitech’s owner’s severe emotional distress as a result of the
actions of Wholesome Choice, its owner, and its IT manager.
Result Judge David Chaffee found for Digitech on Wholesome
Choice’s complaint. He also found for Digitech on Digitech’s
cross-complaint. Chaffee determined that Digitech’s damages
totaled $124,677.96, including $46,598.85 for Wholesome
Choice’s breach of implied in fact contract, $28,079.11 for
conversion/fraud and misrepresentation, and $50,000 in
damages for Digitech’s owner’s severe emotional distress.
Demand None reported
Offer $50,000 during trial
Plaintiff
Expert(s) None reported
Defense
Expert(s) Dave Hamze, technical, Santa Ana, CA
(industry standard photocopier service
agreements, photocopy repairs and market
rate for photocopies; owner of Digitech
Business Solutions Inc.)
Ismael Villalpando, technical, Santa Ana, CA
(industry standard photocopier service
agreements and photocopy repairs)
Editor’s Note This report is based on information that
was provided by plaintiff’s and defense counsel.
–Priya Idiculla
January 1, 2018 www.verdictsearch.com
Southern
San Diego Count y
PREMISES LIABILITY
Dangerous Condition of Public Property — Sidewalk — Trip and Fall
Sidewalk fall caused breast
implants to rupture: plaintiff
Verdict $84,924
Case Cynthia Hedgecock, an Individual and Roger
Hedgecock, an individual v. City of San Diego,
a municipality, and Does 1-20, inclusive,
No. 37-2016-00035348-CU-PO-CTL
Court Superior Court of San Diego County,
San Diego
Judge Kenneth J. Medel
Date 12/6/2017
Plaintiff
Attorney(s) Brett J. Schreiber, Thorsnes Bartolotta
McGuire LLP, San Diego, CA
Defense
Attorney(s) Catherine A. Richardson, Office of the
City Attorney, San Diego, CA
Facts & Allegations On July 31, 2015, plaintiff Cynthia
Hedgecock, 68, a self-employed worker, was walking on a
sidewalk along Morrell Street, approaching Grand Avenue,
in San Diego, when she tripped and fell. Hedgecock landed
on her chest.
Hedgecock sued the city of San Diego, alleging the city
failed to repair and/or maintain the sidewalk, creating a
dangerous condition.
Hedgecock contended that she was on her way to a
meeting when she got out of her car carrying folders in one
hand and a phone in the other. She testified that she was not
looking down at her feet while she walked toward Grand
Avenue and that when she tripped, she was trying to keep
her papers from flying away and her cell phone from hitting
the ground. Hedgecock claimed that there was a 2.5 inch
concrete lip in the sidewalk, causing it to be uneven, and
that her toe became caught in it, causing her to trip and
fall. Thus, she contended that the city was negligent for
failing to repair the defect and that the sidewalk was left in
a dangerous condition to the public.
Defense counsel denied the fall occurred where Hedgecock
alleged, as Hedgecock contacted the city six months after
the fall and indicated a different location on the claim she
filed with the city than what was presented at trial. Defense
counsel further asserted that the fall was not witnessed by
anyone and no images were submitted to document any
damages to Hedgecock’s phone or clothing. However, after
plaintiff’s counsel obtained evidence that the sidewalk
13
Southern / Central VerdictSearch California

violated city rules regarding height differentials between Plaintiff

sidewalk slabs and, further, could prove the city knew
about the dangerous condition at least five months before
Hedgecock’s fall, the city, one week before trial, agreed to
stipulate to liability.
Injuries/Damages breast implant, damage; chest; loss
of consortium
After her fall, Hedgecock got up and continued to her
meeting. However, on Aug. 17, 2015, Hedgecock, who had
breast implants, presented to Scripps Clinic, in San Diego,
with persistent chest pain and breast deformities. By early
September 2015, she learned that both of her silicone breast
implants had ruptured and that the silicone had been leaking
into her blood since the subject fall. As a result, she had
to undergo a bilateral implant removal and a replacement
procedure on Nov. 10, 2015. After the extensive surgery,
Hedgecock required pain medication, sleeping aides, and
assistance from her husband, and it took two months for her
to fully recover.
Hedgecock admitted that she was back to her former state of
health within six months of the fall. Thus, she sought recovery
of $19,924.04 in past medical costs and an unspecified
amount of damages for her past pain and suffering. Her
husband, plaintiff Roger Hedgecock, presented a derivative
claim seeking recovery for his loss of consortium, but his claim
was ultimately dismissed before trial.
Defense counsel denied that Ms. Hedgecock’s ruptured
implants were caused by the fall. Counsel noted that Ms.
Hedgecock had a scheduled doctor’s appointment five days
after she reportedly fell, but that she did not mention the fall
to the physician. Counsel also contended that an MRI done
weeks after the fall looked similar to an MRI done in 2012,
when Ms. Hedgecock said she fell while on vacation in Hawaii.
Defense counsel further contended that the 2012 MRI showed
ruptures of both breast implants and that 2015 medical
records showed that the implants were due for replacement
anyway because they were more than 20 years old.
Result The jury found that the dangerous condition was a
substantial factor in causing Ms. Hedgecock’s harm. The jury
determined that Ms. Hedgecock’s damages totaled $84,924.04.
Cynthia
Hedgecock
$19,924 past medical cost
$65,000 past pain and suffering
$84,924
Demand $50,000 (C.C.P. § 998)
Offer $5,000 (C.C.P. § 998)
Trial Details Trial Length: 3 days
Trial Deliberations: 4 hours
Jury Vote: 12-0
Jury Composition: 7 male, 5 female
Expert(s) Munish K. Batra, M.D., plastic surgery/
reconstructive surgery, San Diego, CA
Defense
Expert(s) Jack C. Fisher, M.D., plastic surgery/
reconstructive surgery, San Diego, CA
Post-Trial As the prevailing party and having beat her
C.C.P. § 998 demand, Hedgecock is moving for recovery
of over $20,000 in litigation and expert expenses. Thus,
according to plaintiff’s counsel, after recoverable costs and
expenses, the final judgment will be in excess in $100,000.
Editor’s Note This report is based on information that
was gleaned from court documents and an interview of
plaintiffs’ counsel. Defense counsel did not respond to the
reporter’s phone calls.
–Priya Idiculla
Central
Sacramento Count y
MEDICAL MALPRACTICE
Failure to Monitor — Podiatrist — Foot Surgery
Patient not harmed by required
ankle fusion, defense argued
Verdict Defense
Case Aaron Hiatt and Martha A. Hanson v.
Rubin Orthopedic Group; Roy Rubin,
M.D.; Phong Le, DPM; and Does 1-25,
No. 34-2015-00174456
Court Superior Court of Sacramento County,
Sacramento
Judge David F. De Alba
Date 10/11/2017
Plaintiff
Attorney(s) Matthew W. Reiser, Reiser Law PC,
Walnut Creek, CA (Aaron Hiatt)
None reported (Martha A. Hanson)
Defense
Attorney(s) Paul R. Baleria, Low McKinley Baleria &
Salenko, LLP, Sacramento, CA
(Phong Le, DPM)
Thomas J. Doyle, Schuering Zimmerman &
Doyle, LLP, Sacramento, CA
(Rubin Orthopedic Group, Roy Rubin, M.D.)

14 www.verdictsearch.com January 1, 2018

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13. JURY POLL 14. TIME JURY WAS OUT

15. COMPOSITION OF JURY (e.g., gender, race)

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17. HAS NOTICE OF APPEAL BEEN FILED? 18. IF SO, BY WHOM?

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20. DATE, TIME AND PLACE OF ACCIDENT OR OCCURRENCE

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(please list age at time of incident. For wrongful-death cases, please give ages of decedents and survivors.)

22. D
 ESCRIPTION OF CASE
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23. PLAINTIFF’S INJURIES, TREATMENT AND RESIDUALS
(please include ALLEGATIONS AND DEFENSES on damages. Be specific concerning MEDICAL TESTIMONY)

24. SPECIALS

25. AMOUNT ASKED OF JURY

26. DEMAND 27. OFFER

28. PLAINTIFF’S EXPERTS

(please include expert’s specialty, city, company affiliation and, if called, the name of attorney who called the witness)

29. DEFENDANT’S EXPERTS

(please include expert’s specialty, city, company affiliation and, if called, the name of attorney who called the witness)

30. OTHER COMMENTS

(especially concerning matters critical to the outcome of the case. In your opinion, what was the TURNING POINT in the case?
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3
VerdictSearch California
Facts & Allegations On Jan. 27, 2014, plaintiff Aaron
Hiatt, 42, an ironworker, underwent the surgery at Mercy
General Hospital Outpatient Surgery Center, in Sacramento,
to repair tendons in his left ankle.
Hiatt previously injured his left ankle at work on
April 9, 2013. He was subsequently referred to Dr.
Phong Le, a podiatrist at Rubin Orthopedic Group,
for care and treatment beginning in July 2013. Various
conservative treatment modalities were attempted, but
Hiatt’s symptoms did not improve. An MRI scan of his
left ankle ultimately revealed a peroneus brevis tendon
tear and peroneus longus tendinopathy. Due to Hiatt’s
persistent complaints of pain, inability to work, and
objective findings on the MRI, Le recommended surgery
to repair the tendons. Le went over the risks of surgery,
including the possibility that blood clots may develop,
after which Hiatt provided his informed written consent
to have the operation performed.
During the Jan. 27, 2014 surgery, Le noted that there
was a greater than 50 percent tear of the peroneus brevis
tendon with significant synovitis, as well as synovitis within
the peroneus longus tendon. Due to the severity of Hiatt’s
injury, Le exercised his judgment to perform a subtalar joint
arthrodesis (fusion) procedure, in addition to a repair of
the tendons. There were no intraoperative complications,
and Hiatt was discharged home following the outpatient
procedure. However, postoperatively, Hiatt developed deep
venous thrombosis in his left, lower extremity and a
pulmonary embolism.
Hiatt sued Le; an orthopedist, Dr. Roy Rubin; and Le and
Rubin’s orthopedic group, Rubin Orthopedic Group. Hiatt
alleged that the defendants were negligent in the performance
of the surgery and in the rendering of post-operative care.
He also alleged that the defendant’s negligence constituted
medical malpractice.
Martha Hanson was initially named as a plaintiff, but she
was ultimately dismissed as part of a demurrer before trial.
Hiatt claimed that Le performing the fusion is what
caused the DVT and pulmonary embolism. Although he
acknowledged that there was no issue with the repair of the
tendons, he claimed that the subtalar joint arthrodesis aspect
of the surgery was unnecessary and below the standard of
care. Hiatt further claimed that he did not need the fusion,
that the fusion was unnecessary, and that the fusion would
have laid him off of work for longer than he wanted. In
addition, he claimed that the defendants were negligent in the
post-operative care provided to him, as they did not respond
to his telephone calls and reports of symptoms consistent
with DVT.
The plaintiff’s podiatry expert relied on Hiatt’s deposition,
in which Hiatt claimed that he had all the “classic” symptoms
for DVT, that Hiatt attempted to call the orthopedic group
but could not get through, that he also could not get in touch
with Le, and that this caused Hiatt to present to Woodland
Memorial Hospital, in Woodland, for care. The expert
testified that he believed Hiatt and that if what Hiatt said
January 1, 2018 www.verdictsearch.com
Central
was true, then the actions of Le and the orthopedic group
were below the standard of care. Thus, the podiatry expert
supported Hiatt’s contentions, and opined that the fusion
was overkill and not necessary. Specifically, the expert
opined that it was not necessary for the ankle to be stabilized.
Le claimed that he talked with Hiatt prior to the surgery
about stabilizing the ankle, as Hiatt was 5 foot, 9 inches tall
and well over 300 pounds. Thus, he claimed he ultimately
performed the subtalar joint arthrodesis in order to maximize
Hiatt’s stability in the left foot and ankle.
Defense counsel contended that the medical chart from
Rubin Orthopedic Group only documented a single telephone
call by Hiatt after the surgery on Feb. 3, 2014, at which
time Hiatt requested a refill of his pain medication only.
Counsel also contended that there were no complaints of
DVT symptoms documented in that note and that Hiatt’s
symptoms appeared after his last call, which was after the
surgery. Thus, defense counsel argued that the defendants
complied with the standard of care in all respects.
The defense’s two expert podiatrists opined that the
subtalar joint arthrodesis aspect of the surgery was indicated
in order to stabilize Hiatt’s left foot and ankle. The experts
also supported the post-operative care provided by the Rubin
Orthopedic Group.
Defense counsel called to testify the hospitalist who cared
for Hiatt at Woodland Memorial Hospital. The hospitalist
testified that Hiatt reported that his DVT symptoms did not
begin until two days before his admission to the hospital,
or Feb. 5, 2014, and that Hiatt’s pulmonary embolism
symptoms did not begin until Feb. 6, 2014. Based on
that information, the lack of documented complaints of
DVT/pulmonary embolism symptoms beforehand, and
the pathophysiology of those conditions, the defense’s
pulmonology expert testified that it was more probable
than not that Hiatt’s DVT symptoms did not begin until
after Feb. 3, 2014, which refuted Hiatt’s contention that he
reported such symptoms earlier.
Injuries/Damages embolism; leg; pulmonary/respiratory;
swelling
On Feb. 7, 2014, Hiatt was admitted to Woodland
Memorial Hospital, where he was diagnosed with deep vein
thrombosis and a pulmonary embolism. He subsequently
received anticoagulation treatment. Hiatt’s condition
improved, and he was discharged home six days later. He
then continued to follow up with Le through May 2014,
during which time he recovered from surgery.
Hiatt asserted that he was harmed when he developed
the pulmonary embolism and that he now requires ongoing
anticoagulation in the form of Coumadin medication.
Thus, Hiatt sought recovery of $56,000 in past lost
earnings for the time he was not able to work. He also sought
recovery for his past and future medical costs, and past and
future pain and suffering.
Defense counsel contended that Hiatt had an optimal
result from the surgery. Defense counsel also noted that the
plaintiff’s podiatry expert testified that he was not able to say,
15
Central / Federal VerdictSearch California
with a reasonable degree of medical probability, that Hiatt
was harmed by undergoing the subtalar joint arthrodesis.
One of the defense’s podiatry experts, Dr. Thomas Chang,
testified about his evaluation of Hiatt and opined that, once
Hiatt healed and had physical therapy, Hiatt had a good
result from the surgery and that Hiatt’s prognosis was good.
The expert further opined that the fusion was solid and that
Hiatt would be able to continue to work.
Result The jury rendered a defense verdict. It found that
the defendants were not negligent in the care and treatment
of Hiatt.
Demand $500,000 in general damages to
each defendant
Offer Waiver of costs
Trial Details Trial Length: 9 days
Trial Deliberations: 1 hour
Jury Vote: 12-0 for each defendant
Plaintiff
Expert(s) Vincent Marino, D.P.M., podiatry,
Sacramento, CA
Defense
Expert(s) Timothy E. Albertson, M.D., pulmonology,
Sacramento, CA
Thomas J. Chang, D.P.M., podiatry,
Santa Rosa, CA
Bruce M. Dobbs, D.P.M., podiatry,
Daly City, CA
Editor’s Note This report is based on information that
was provided by defense counsel. Plaintiff’s counsel did not
respond to the reporter’s phone calls.
–Priya Idiculla
Checking up on
an Expert?
Go to www.VerdictSearch.com
or call 1-800-832-1900
to find the cases they’ve handled.
16 www.verdictsearch.com
Federal
Central District
CIVIL RIGHTS
42 USC 1983 — Wrongful Confinement — Wrongful Conviction
Detectives failed to turn over
exculpatory evidence: suit
Settlement $15,000,000
Case Frank O’Connell and Nicholas O’Connell v.
J.D. Smith; Estate of Gilbert Parra; Eric Parra;
County of Los Angeles; and Does 1-10,
No. 13-CV-01905-MWF
Court United States District Court, Central District,
Los Angeles
Judge Michael W. Fitzgerald
Date 11/21/2017
Plaintiff
Attorney(s) Barrett S. Litt (lead), Kaye, McLane,
Bednarski & Litt, LLP, Pasadena, CA
Lindsay B. Battles, Kaye, McLane,
Bednarski & Litt, LLP, Pasadena, CA
Ronald O. Kaye, Kaye, McLane, Bednarski
& Litt, LLP, Pasadena, CA
Defense
Attorney(s) Michael D. Allen, Lawrence Beach Allen &
Choi, PC, Glendale, CA
Facts & Allegations On Jan. 12, 1984, plaintiff Frank
O’Connell, 27, a woodworker, was arrested in the shooting
death of Jay French, a maintenance worker.
French was shot two times while in the parking lot of the
State Street apartment complex, in South Pasadena, where he
resided with his wife. French was pronounced dead at the scene.
French’s wife informed detectives that her husband had been
engaged in a long-standing, disputed, custody battle over a son
he had in common with his ex-wife, Jeannie Lyon. Homicide
detectives with the Los Angeles County Sheriff’s Department
located several witnesses at the scene of the crime, including
several who identified the getaway vehicle as a yellow Pinto,
as well as one eyewitness, a tenant in the apartment complex,
who allegedly had an unobstructed view of the shooter from
only 20 feet away. The tenant eyewitness told detectives that
the shooter was a tall, white male; in his mid-30’s with brown
hair; and between 6-foot, 1-inch and 6-foot, 3-inches tall. The
tenant eyewitness told detectives that after French was shot
and the suspect had fled the scene, he heard the victim state
that the shooter was the “guy in the yellow Pinto.” The tenant
witness also claimed that the last words the victim said before
he died were, “This had something to do with Jeannie.”
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VerdictSearch California
Neither the weapon used in the murder nor the vehicle
were recovered.
When detectives presented the tenant eyewitness with a
six-photo photographic array, which included a picture of
O’Connell, the tenant eyewitness identified O’Connell as
the person who had shot and killed the victim. As a result,
O’Connell was arrested.
O’Connell elected to have a bench trial, rather than a
jury trial.
At both the preliminary hearing and the bench trial, the
tenant eyewitness testified that nothing obstructed his view
of the murder and that he positively identified O’Connell as
the shooter.
On April 6, 1985, O’Connell was convicted for French’s
murder and he was sentenced to 25 years to life in prison.
O’Connell, who continued to maintain his innocence,
contacted Centurion Ministries, a nonprofit organization that
works on behalf of inmates who claim they were wrongfully
convicted, and asked for help. During its investigation,
Centurion learned that the tenant eyewitness may have
had a partially obstructed view of the shooting. The tenant
eyewitness testified during the underlying criminal trial that
he was not wearing his eyeglasses at the time, but that he
was told by his doctor that he did not even need eyeglasses.
The tenant eyewitness also told Centurion that he was not
told by the detectives that one of his options when shown
the six-photo photographic array was to not pick any of the
photographs if he did not recognize the shooter.
At a new hearing in 2012, a judge determined that
O’Connell should be freed. The judge ruled that the detectives
may have improperly influenced witnesses and failed to give
the defense evidence pointing to another possible suspect, a
violation of the Brady rule, which requires the government to
turn over favorable evidence to the defense.
After O’Connell was freed, sheriff’s detectives asked the
district attorney’s office to refile murder charges against him,
but the prosecutors declined. Thus, the French case remains
an open murder investigation, and prosecutors have not
charged anyone else since O’Connell was released.
In 2013, O’Connell filed a federal civil rights lawsuit
against the one surviving detective, J.D. Smith; Eric Parra,
as the administrator of the estate of the other detective,
Gilbert Parra; and the detectives’ employer, the county of Los
Angeles. O’Connell alleged that J.D. Smith and Gilbert Parra
withheld evidence and provided misleading information
during his trial, in violation of his civil rights, and that the
county was liable for the detectives’ actions.
Plaintiff’s counsel contended that issues were identified
by Centurion in the murder investigation that was not
disclosed to O’Connell’s criminal defense counsel prior to,
or during, the murder trial. Specifically, counsel contended
that the detectives refused to reveal evidence impeaching the
statements of the three eyewitnesses, as well as information
about a previous attempt on French’s life. Counsel contended
that the undisclosed information was noted in an internal
South Pasadena Police Department memorandum, which
January 1, 2018 www.verdictsearch.com
Federal
included other information that was allegedly not turned
over to O’Connell’s criminal defense counsel during the
murder trial. In addition, plaintiff’s counsel contended that
the memorandum addressed an anonymous phone call that
was received in 1984 by a male who claimed that French’s
ex-wife, Lyon, had paid to have French killed after she
learned that French had been awarded custody of their son.
Defense counsel noted that although there was a claim that the
homicide detectives did not provide exculpatory evidence to the
plaintiff’s criminal defense counsel during the civil deposition,
O’Connell’s criminal defense counsel admitted to having notes
in his own handwriting with the name of the known driver
involved in the previous murder attempt on French and having
knowledge of his status as being in custody in Oregon state.
Defense counsel also noted that the plaintiff’s criminal defense
counsel stated that there was a request for an investigation into
travel plans between Oregon and Los Angeles to see if travel
was feasible to commit the murder, but that it is unknown what
outcome the defense counsel reached by the investigation.
Injuries/Damages emotional distress; loss of parental
guidance
One year after the shooting of French, Frank O’Connell, a
former football star at Glendora High School, was convicted
of murder and sentenced to 25 years to life in prison.
O’Connell, now 59, works at an automobile repair shop
in Colorado. He’s spent the last five years rebuilding his
relationship with his son and he has had to navigate a more
technological world since being released.
O’Connell’s son, plaintiff Nicholas O’Connell, was 4 years
old when his father was incarcerated. He claimed they were
only able to see each other when Nicholas O’Connell was
able to visit his father in custody. Thus, Frank O’Connell
claimed a loss of a familial relationship with his son and
the O’Connells both claimed they suffered from emotional
distress. In addition, Frank O’Connell claimed he suffered
various physical injuries while he was in custody.
Result The parties agreed to a $15 million settlement prior
to trial, of which the county agreed to pay in exchange for a
dismissal of all claims.
According to defense counsel, while the Sheriff’s Department’s
practice, at all relevant times, has been to disclose its entire
file to prosecutors, since the filing of this case, the Sheriff’s
Department has developed a checklist in an effort to document
the specific materials disclosed in each case submitted for
prosecution. The development of the checklist is to ensure that
there is accurate documentation reflecting that all material
evidence has, in fact, been turned over to prosecutors.
Insurer(s) self-insured County of Los Angeles
Editor’s Note This report includes information that was
gleaned from court documents and interviews of plaintiffs’
and defense counsel.
–Priya Idiculla
17
Federal VerdictSearch California
CIVIL RIGHTS
ADA — School — Discrimination — Disability
Student denied extracurricular
activity and male aide: plaintiffs
Settlement $1,000,000
Case Madison Meares, by and through his
educational decision-maker and mother,
Kim Meares, and Kim Meares v. Rim of the
World Unified School District,
No. 5:15-cv-02096-JGB-KK
Court United States District Court, Central District,
Riverside
Judge Jesus G. Bernal
Date 6/2/2017
Plaintiff
Attorney(s) Dan L. Stormer (lead), Hadsell Stormer &
Renick LLP, Pasadena, CA
Brian Olney, Hadsell Stormer & Renick LLP,
Pasadena, CA
Cindy Panuco, Hadsell Stormer & Renick
LLP, Pasadena, CA
Defense
Attorney(s) Vivian E. Billups, Vivian E. Billups, APC,
Brea, CA
Gary R. Gibeaut, Gibeaut, Mahan & Briscoe,
Los Angeles, CA
Nancy A. Mahan-Lamb, Gibeaut, Mahan
& Briscoe, Los Angeles, CA
Facts & Allegations In the fall of 2013, plaintiff
Madison Meares, 18, a student diagnosed as being on
the autism spectrum, had his usual male one-to-one aide
replaced with a female one-to-one aide.
Madison’s mother and holder of his educational decision-
making authority, plaintiff Kim Meares, previously met with
officials from Rim of the World Unified School District in
November 2010 to determine the level of support necessary
to assist her son in his transition to high school the following
year. The officials produced an individualized education plan
stating that the school district would provide Madison with
a one-to-one aide to support him throughout the day and
in after-school sports. However, one week after Madison
began high school, he inappropriately touched his female
one-to-one aide. As a result, the school district immediately
reassigned Madison to a male one-to-one aide and, in
January 2012, hired Charles Purinton to serve as Madison’s
one-to-one aide on a permanent basis.
With the help of Purinton, Madison joined the school’s
mountain biking team. However, Madison required an
aide to accompany him on rides to prevent him from
getting lost, protect him from vehicular traffic, and to
18 www.verdictsearch.com
instruct him when to switch gears. As a result, Purinton
rode with Madison during practice, and the team’s
coach, Scott Craft, accompanied him during races after
obtaining an exemption from the league’s governing body,
the National Interscholastic Cycling Association (NICA),
since the rules prohibited coaches from riding with
students during races. During the 2012 season, Madison
earned an “Inspirational Finish” award and recognition in
a local newspaper after completing a race by running more
than six miles on foot after his bicycle broke.
In the fall of 2013, Rim of the World Unified School District
replaced Purinton with a female one-to-one aide. Thereafter,
the frequency and severity of Madison’s behavioral outbursts
increased significantly, and he was left unsupervised when
changing in the locker room for physical education class
because his female aides were unable to accompany him
inside. Thus, Ms. Meares claimed that her son’s behavior
quickly deteriorated. At around the same time, the school
district took the position that it was only obligated to
provide Madison an aide for mountain biking to the extent
that the specific activity was necessary for Madison’s
educational attainment. As a result, Rim of the World
Unified School District began providing only instructional
aides for mountain biking, though none of them could keep
pace with Madison, and, in 2014, the school district ceased
to provide any mountain biking aide for Madison.
On Jan. 13, 2015, at a meeting regarding Madison’s
individualized education plan, Mrs. Meares requested that
Madison’s individualized education plan include provisions
for a male aide and a competent mountain biking aide.
However, the school district refused both requests, stating
that female aides could adequately address Madison’s needs,
that Madison did not require extra-curricular programs to
gain educational benefits, that Madison was ineligible under
NICA rules because he was too old, and that the mountain
biking team lacked the resources to support a non-racing
member. The school district did not seek an exemption from
the NICA rule limiting the age of student participants.
On Feb. 5, 2015, Madison inappropriately touched his
female aide in an incident the school district referred to
as a “sexual assault.” That same day, Madison’s teacher
told Rim of the World Unified School District’s director of
special services that Madison required a male aide. As a
result, the school district immediately replaced Madison’s
female aide with a male aide, but did not revise Madison’s
individualized education plan to require that he be provided
a male one-to-one aide in the future.
On Feb. 25, 2015, and again on March 23, 2015,
Madison struck a female teacher, after which Rim of the
World Unified School District decided that Madison would
be assigned only male aides. However, in November 2015, Rim
of the World Unified School District once again declined
to include a male aide as a requirement in Madison’s
individualized education plain.
In May 2015 and June 2015, Ms. Meares, her son, and
Rim of the World Unified School District underwent a due
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VerdictSearch California
process hearing. Ms. Meares alleged that Rim of the World
Unified School District refused to provide Madison a male
one-to-one aide and a competent mountain biking aide and
that the school district’s actions denied Madison a free and
appropriate public education.
In July 2015, the administrative law judge found that
the school district’s refusal to include either a male aide
or mountain biking aide in Madison’s January 2015
individualized education plan did not deny him a free and
appropriate public education.
On Oct. 12, 2015, Ms. Meares and her son filed a lawsuit
in district court against Rim of the World Unified School
District, appealing the administrative law judge’s decision. Ms.
Meares alleged that the school district’s actions constituted
violations of the Individuals with Disabilities and Education
Act (IDEA), 20 U.S.C. §§ 1400-1491. She also alleged that
the school district’s actions constituted discrimination against
Madison on the basis of disability in violation of § 504 of the
Rehabilitation Act; 29 U.S.C. § 794; Title II of the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq.; and
the California Unruh Civil Rights Act (Unruh Act), California
Civil Code § 51.
On Sept. 2, 2016, Judge Jesus Bernal issued an order
on the plaintiffs’ IDEA appeal only. Bernal reversed the
administrative law judge’s decision as to the plaintiffs’
request for a male aide, stating that Rim of the World Unified
School District’s failure to provide Madison a male aide
denied him a free and appropriate public education. Thus,
he affirmed the administrative law judge’s decision as to the
plaintiffs’ request for a competent mountain biking aide,
stating that the plaintiffs had not demonstrated that Madison
required participation specifically in mountain biking to
obtain the “basic floor” of educational benefits required by
law. Bernal then considered, in a case of first impression in
the Ninth Circuit, the plaintiffs’ alternative argument that
Madison was entitled to a mountain biking aide, even if
one was not educationally necessary, because the IDEA’s
implementing regulations under 34 C.F.R. §§ 300.107(a) and
300.117 establish a right to equal access to extracurricular
activities that is separate and apart from the demands of
a free and appropriate public education. He conducted
a thoughtful and detailed analysis of the IDEA and
Rehabilitation Act, and held that an “[individualized
education plan] must include services so that [the] plaintiff
can participate in an appropriate, but educationally
nonessential, extracurricular activity to the same extent
as his non-disabled peers.” Applying that rule, Bernal
held that Rim of the World Unified School District must
include a competent mountain-biking aide in Madison’s
individualized education plan because the record indicated
that mountain biking was an “appropriate” activity for
him. According to plaintiffs’ counsel, that aspect of the
court’s holding was the first federal court decision ever
to recognize a right under the IDEA’s regulations of equal
access for disabled students to participate in appropriate
extracurricular activities.
January 1, 2018 www.verdictsearch.com
Federal
Injuries/Damages Following the court’s decision,
plaintiffs’ counsel moved for summary judgment on
the ADA, § 504, and Unruh Act claims. Through their
claims, Ms. Meares and Madison sought a compensatory
education for Madison, and injunctive relief in the form
of a male one-to-one aide and a qualified mountain
biking aide. They also sought monetary damages on the
ground that the Rim of the World Unified School District’s
requirement that they demonstrate that mountain biking
conferred an essential educational benefit discriminated
on the basis of disability because it did not require its
non-disabled students to make any such showing as a
prerequisite to participating in extra-curricular activities.
In addition, Ms. Meares and Madison sought attorney fees
and a declaration that Rim of the World Unified School
District’s prior policies and practices with respect to the
provision of educational and extracurricular services were
contrary to law.
Defense counsel raised 31 affirmative defenses.
Result While plaintiffs’ counsel’s motion for summary
judgment was pending, the parties reached $1 million
settlement, which included $450,000 for the plaintiffs and
$550,000 for attorney fees. The settlement also obligated
Rim of the World Unified School District to form a permanent
district-wide superintendent/parent advisory board to discuss
issues significant to special education students and students
with a plan under § 504 of the Rehabilitation Act, and to
develop policies setting forth procedures for encouraging
disabled students to participate in extra-curricular activities.
Insurer(s) California Schools Employee Benefits
Association for Rim of the World Unified
School District
Plaintiff
Expert(s) Paula D. Pearlman, Esq., special education,
Los Angeles, CA (disability civil rights and
discrimination, special education law and
advocacy; did not testify)
Defense
Expert(s) Mary Anne Klenske, M.A., special education,
San Bernardino, CA (behavioral specialist;
did not testify)
Ronald J. Powell, Ph.D., special education,
Apple Valley, CA (federal and state laws
applicable to students with disabilities;
did not testify)
Editor’s Note This report is based on information that
was provided by plaintiff’s counsel. Defense counsel did not
respond to the reporter’s phone calls.
–Priya Idiculla
19
Undocketed VerdictSearch California
Undocketed
statewide
PREMISES LIABILITY
Negligent Repair and/or Maintenance — Dangerous Condition
Plaintiff claimed ongoing pain
from ankle fracture
Mediated
Settlement $400,000
Case Mary Buffett v. Sunset Brentwood
Homeowners Association and Bowker &
Roth Property Services, Inc.
Court Matter not filed
Neutral(s) Michael D. Marcus
Date 12/4/2017
Plaintiff
Attorney(s) Peter M. Wucetich (lead), Law Offices of
Peter M. Wucetich, Palm Desert, CA
Arthur Avazian, Law Offices of Avazian
& Avazian, Los Angeles, CA
Defense
Attorney(s) Jessica A. Saldo, Mark R. Weiner &
Associates, Glendale, CA
Facts & Allegations On April 2, 2014, plaintiff Mary
Buffett, 65, a motivational speaker and writer, was leaving
her unit at the Sunset-Brentwood complex. As she walked
down a walkway, she slipped and fell. Buffett claimed
injuries to her left ankle and knee.
Buffett sued the managers of the complex, Sunset
Brentwood Homeowners Association and Bowker & Roth
Property Services Inc. Buffett alleged that the defendants
failed to properly maintain the walkway, creating a
dangerous condition.
Buffett claimed she slipped on water and algae that had
been left on the walkway.
The parties agreed to mediation, and the defendants
stipulated to liability. Thus, the mediation addressed the
issues regarding the nature and extent of Buffett’s alleged
injuries and damages.
Injuries/Damages ankle; complex regional pain
syndrome; decreased range of motion; fracture, ankle;
fracture, distal fibula; fracture, fibula; nondisplaced fracture;
physical therapy; radiculopathy
Buffett claimed she sustained a non-displaced, spiral
fracture of the left ankle’s distal fibula, resulting in complex
regional pain syndrome, also known as reflex sympathetic
dystrophy or causalgia, a chronic pain condition.
20 www.verdictsearch.com
After her fall on the walkway, Buffett was transported by
paramedics to St. John’s Health Center, in Santa Monica,
where she was seen in the emergency room and underwent
X-rays. A cast was then applied to her left ankle. The next day,
Buffett followed up with an orthopedic surgeon, whom she
treated with through Oct. 13, 2014. The orthopedic surgeon
encouraged Buffett to continue with physical therapy in order
to alleviate pain and indicated that Buffett might benefit from
pain management intervention in the future.
On May 17, 2014, Buffett sought treatment from a pain
management physician at Alpha Pain Management, in Santa
Monica. The physician noted that Buffett’s distal fibula
appeared to be well-healed, but that Buffett still complained
of pain. As a result, the physician indicated that Buffett
would be a great candidate for a spinal cord stimulator to
help treat her complex regional pain syndrome that she was
experiencing at that time.
Buffett next sought treatment from Lotus Physical Therapy
Inc. (which was doing business as Pacific Coast Physical
Therapy), in Los Angeles, on May 21, 2014. She subsequently
underwent six weeks of physical therapy, two to three times
per week.
One week after she first presented to Lotus Physical
Therapy, Buffett returned to St. John’s Health Center with
complaints of headaches. However, she underwent a CT scan
of the head, which a diagnostic radiologist interpreted as
showing no evidence of an acute intracranial process. Buffett
also saw a nephrologist that same day and related that she
had a fall on April 2, 2014. Buffett’s complaints at that time
consisted of pain to her left knee, ankle, and shoulder, as well
as swelling to her left ankle. The nephrologist determined
that the ankle swelling was due to the closed fracture of the
fibula shaft. Buffett then returned to the nephrologist for a
follow-up visit on June 2, 2014, as which time swelling from
the fracture was again noted.
On July 16, 2014, Buffett was seen by an anesthesiologist
and related to him that she had a slip-and-fall incident
on April 2, 2014. At the time of the visit, her current
complaints consisted of neck pain and sciatica pain.
Thus, the anesthesiologist diagnosed her with cervical
and lumbar radiculophy with transient relief from oral
steroids. Buffett then returned to the pain management
physician at Alpha Pain Management on Nov. 3, 2014
for an evaluation and treatment of the alleged pain to her
left foot, ankle, and leg. The doctor noted that Buffett’s
pain was “unspecific.” Buffett next treated for left lower
extremity problems at the Rancho Rollus Center for
Physical Therapy on April 16, 2016 and April 29, 2016.
Her treatment consisted of physical therapy three times
per week for 12 weeks.
On Aug. 4, 2016, Buffett presented to the emergency room
at Cedars-Sinai Medical Center, in Los Angeles, and was
seen for a psychiatric evaluation.
Buffett, a motivational speaker and writer, had five
speaking engagements set up in different cities in Asia in
2014, for which she was to be paid the sum of $50,000 per
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VerdictSearch California
engagement. However, she claimed the speaking engagements
had to be cancelled due to her fractured ankle.
Thus, Buffett sought recovery of $250,000 in past loss of
earnings and $871,599 in further loss of earnings. She also
sought recovery of past medical costs, including $1,935.52
for her treatment at St. John’s Health Center, $1,625 for
services provided at Pacific Coast Physical Therapy, $863
for services rendered at Rancho Rollus Center for Physical
Therapy, and $20,475.10 for all her medical treatment at
Cedars-Sinai Medical Center. In addition, Buffett sought
recovery of damages for her pain and suffering.
The defense’s pain management expert saw Buffett on
July 27, 2017 and noted that Buffet’s physical examination
demonstrated temperature changes, slight sensory changes,
a tendency toward inversion of the left ankle, and decreased
range of motion of the left ankle. The expert opined that
the findings were suggestive of a partially resolved complex
rational pain syndrome. He also noted that Buffett had
previously sustained fractures to the left knee in 2008 and
left ankle in 2012. Buffett reported to the expert that she
had recovered from those injuries with only occasional
swelling and pain. However, the defense’s expert noted
that 2.5 months before the April 2014 incident, Buffett
underwent more ankle and sciatic nerve blocks performed.
Thus, the defense’s pain management expert found that it
was not clear if Buffett had elements of complex regional
pain syndrome before her 2014 injury, but that, in any case,
it did appear that the subject injury worsened Buffett’s
prior chronic pain involving her left knee and ankle areas.
Overall, the expert found that Buffett made good progress
with conservative care and was returning to her usual
work and that although Buffett continues to complain
of moderate levels of pain, objective signs of complex
regional pain syndrome have resolved with the exception of
temperature asymmetry in her lower legs.
Thus, the defense’s pain management expert opined
that Buffett’s current treatment plan with oral Ketamine,
occasional Nucynta, and Nortripyline were appropriate
and that he anticipated that Buffett will continue to need
the Ketamine and Nucynta on a gradually decreasing basis
for the next three years. However, the expert opined that
Buffett should continue using low doses of Nortriptyline
for life. In addition, the expert opined that Buffett
appeared to benefit from physical therapy and that he
would recommend 24 more sessions of physical therapy
over the next year, followed by 12 sessions the following year,
followed by six sessions per year for the subsequent five years.
The defense’s expert orthopedic surgeon performed an
independent medical examination on Buffett on Aug. 9, 2017.
At that time, Buffett complained of pain to her right shoulder,
back, left hip, left knee, left lower leg, and left ankle, but related
that her primary complaint was pain to the subject left ankle,
which she fractured on April 2, 2014. It was noted that at the
time of the defense’s expert orthopedic surgeon’s examination,
Buffett had an appointment to see a pain management doctor
and was still treating with her initial orthopedic surgeon.
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Undocketed
The defense’s expert orthopedic surgeon examined
Buffett’s cervical spine, shoulder, lumbar spine, knees,
and ankles, as well was reviewed a series of X-rays taken
before the subject incident. He noted that Buffett had a
history of similar types of ankle fractures and that she
received appropriate treatment with the use of a cast, boot,
and exercise rehabilitation programs. Thus, the defense’s
expert orthopedic surgeon indicated that the treatment
performed by Buffett’s initial, treating orthopedic surgeon
was appropriate. The defense’s expert orthopedic surgeon
also opined that Buffett’s subject fracture has united and that
there is only a “slight loss of motion” regarding her ankle.
He further recommended that Buffett undergo continue with
a home exercise program, undergo continued strengthening,
use proper shoe wear, and avoid aggravated activities. He
concluded by stating that no other orthopedic intervention
was recommended or anticipated.
In response, plaintiff’s counsel noted that, as required by
C.C.P. § 2032.610, the examining doctor must set forth the
current complaint, history, physical examination, diagnosis,
and prognosis. However, plaintiff’s counsel contended that
the defense’s expert orthopedic surgeon did not set forth in
his report a diagnosis or prognosis of the injuries that Buffett
sustained in the subject incident. Rather, the expert had an
open-ended category entitled “Discussion,” which did not
comply with the statute.
Result The parties agreed to a $400,000 settlement, which
was finalized by mediator Michael Marcus, of ADR Services
Inc. The settlement will be paid by the defendants’ insurer.
Insurer(s) State Farm Insurance Cos. for
both defendants
Plaintiff
Expert(s) None reported
Defense
Expert(s) Jennifer L. Polhemus, M.A., economics,
Santa Monica, CA (did not testify)
Steven H. Richeimer, M.D., pain management,
Los Angeles, CA (did not testify)
Robert M. Wilson, M.D., orthopedic surgery,
Los Angeles, CA (did not testify)
Editor’s Note This report is based on information that
was provided by plaintiff’s and defense counsel.
–Priya Idiculla
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Index
Attorneys
Adams, Thomas G. . . . . . . . . . . . . . . . . . . . 9
Allen, Michael D. . . . . . . . . . . . . . . . . . . . . 16
Alvarado, Lesvia M. . . . . . . . . . . . . . . . . . . . 5
Avazian, Arthur . . . . . . . . . . . . . . . . . . . . . 20
Baleria, Paul R. . . . . . . . . . . . . . . . . . . . . . 14
Battles, Lindsay B. . . . . . . . . . . . . . . . . . . . 16
Billups, Vivian E. . . . . . . . . . . . . . . . . . . . . 18
Colton, Roland C. . . . . . . . . . . . . . . . . . . . . . 5
Daniels, William A. Jr. . . . . . . . . . . . . . . . . . 6
Dean, John T. . . . . . . . . . . . . . . . . . . . . . . . . 9
Derossi, Matthew D. . . . . . . . . . . . . . . . 8,11
Doyle, Thomas J. . . . . . . . . . . . . . . . . . . . . 14
Dunbar, Kevin T. . . . . . . . . . . . . . . . . . . . 8,11
Evangelista, Vanessa A. . . . . . . . . . . . . . . . 6
Francisco, Rhett T. . . . . . . . . . . . . . . . . . . . . 9
Gibeaut, Gary R. . . . . . . . . . . . . . . . . . . . . 18
Guterres, Tomas A. . . . . . . . . . . . . . . . . . . . 6
Hester, Cecille L. . . . . . . . . . . . . . . . . . . . . . 5
Hunt, Daniel P. . . . . . . . . . . . . . . . . . . . . . . 11
Iarusso, Michelle . . . . . . . . . . . . . . . . . . . . . 9
Janfaza, Ron A. Rosen . . . . . . . . . . . . . . . . 8
Johnson, Stephen D. . . . . . . . . . . . . . . . . . . 9
Kaye, Ronald O. . . . . . . . . . . . . . . . . . . . . . 16
Kitsinian, Nareg S. . . . . . . . . . . . . . . . . . . . . 9
Litt, Barrett S. . . . . . . . . . . . . . . . . . . . . . . 16
Mahan-Lamb, Nancy A. . . . . . . . . . . . . . . 18
Malek, Sahar . . . . . . . . . . . . . . . . . . . . . . . . 8
Olney, Brian . . . . . . . . . . . . . . . . . . . . . . . . 18
Panuco, Cindy . . . . . . . . . . . . . . . . . . . . . . 18
Peck, Adam J. . . . . . . . . . . . . . . . . . . . . . . . . 5
Reiser, Matthew W. . . . . . . . . . . . . . . . . . . 14
Richardson, Catherine A. . . . . . . . . . . . . . 13
24
Saldo, Jessica A. . . . . . . . . . . . . . . . . . . . . . 20
Schreiber, Brett J. . . . . . . . . . . . . . . . . . . . 13
Stormer, Dan L. . . . . . . . . . . . . . . . . . . . . . 18
Vartazarian, Steven R. . . . . . . . . . . . . . . . . 6
Wucetich, Peter M. . . . . . . . . . . . . . . . . . . 20
Cases
Buffett v. Sunset Brentwood
Homeowners Association . . . . . . . . . 20
Cobb v. County of Los Angeles . . . . . . . . . . 6
Haroutunyan v. CHA Hollywood
Medical Center L.P. . . . . . . . . . . . . . . . 5
Hedgecock v. City of San Diego . . . . . . . . 13
Hiatt v. Rubin Orthopedic Group . . . . . . . 14
Lewis v. Vallarta Supermarkets Inc. . . . . . 8
Meares v. Rim of the World Unified
School District . . . . . . . . . . . . . . . . . . 18
O’Connell v. Smith . . . . . . . . . . . . . . . . . . . 16
Seirafi v. Special-Projects
Engineering Inc. . . . . . . . . . . . . . . . . . . 9
Wholesome Choice Market Inc. v.
Digitech Business Solutions Inc. . . . 11
Courts
Los Angeles County . . . . . . . . . . . . . . . . . . . 5
Orange County . . . . . . . . . . . . . . . . . . . . . . 11
Sacramento County . . . . . . . . . . . . . . . . . 14
San Diego County . . . . . . . . . . . . . . . . . . . 13
Undocketed . . . . . . . . . . . . . . . . . . . . . . . . 20
U.S. District Court, Central District . . . . . 16
Experts
ACCIDENT RECONSTRUCTION
Lowi, Alvin III, P.E. . . . . . . . . . . . . . . . . . . . . 7
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Polhemus, Jennifer L. M.A. . . . . . . . . . . . 21 editor in chief
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Batra, Munish K. M.D. . . . . . . . . . . . . . . . . 14
Fisher, Jack C. M.D. . . . . . . . . . . . . . . . . . . 14
Rosenberg, Jeffrey L. M.D. . . . . . . . . . . . . . 7
PODIATRY
Chang, Thomas J. D.P.M. . . . . . . . . . . . . . . 16
Dobbs, Bruce M. D.P.M. . . . . . . . . . . . . . . . 16
Marino, Vincent D.P.M. . . . . . . . . . . . . . . . 16
January 1, 2018
VerdictSearch California Index

PODIATRY SURGERY chest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Insurers Dangerous condition . . . . . . . . . . . . . . 8,20

Briskin, Gary B. D.P.M. . . . . . . . . . . . . . . . . . 7 complex regional pain syndrome . . . . . . 20 Dangerous condition of

PULMONOLOGY
Albertson, Timothy E. M.D. . . . . . . . . . . . 16
Ishaaya, Abraham “Avi” M.D. . . . . . . . . . . . 6
RESPIRATORY THERAPY
California Schools Employee
crush injury . . . . . . . . . . . . . . . . . . . . . . . . . 7 public property . . . . . . . . . . . . . . . . . 13
Benefits Association . . . . . . . . . . . . . 19
crush injury, foot . . . . . . . . . . . . . . . . . . . . . 7 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CNA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
crush injury, leg . . . . . . . . . . . . . . . . . . . . . . 7 Discrimination . . . . . . . . . . . . . . . . . . . . . . 18
Self-insured . . . . . . . . . . . . . . . . . . . . . . . . 17
decreased range of motion . . . . . . . . . 7,20 Employment . . . . . . . . . . . . . . . . . . . . . . . . 9
State Farm Insurance Cos. . . . . . . . . . . . . 21
embolism . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Failure to monitor . . . . . . . . . . . . . . . . . . . 14

Janssen, Thijs R.T., . . . . . . . . . . . . . . . . . . . . 6 emotional distress . . . . . . . . . . . . . . . .10,17 Judges/Neutrals Foot surgery . . . . . . . . . . . . . . . . . . . . . . . . 14

Valencia, Trinidad R.T., . . . . . . . . . . . . . . . . 6 foot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Bernal, Jesus G. . . . . . . . . . . . . . . . . . . . . . 18 Forklift . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

fracture, ankle . . . . . . . . . . . . . . . . . . . . . . 20 Chaffee, David R. . . . . . . . . . . . . . . . . . . . . 11 Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

SPECIAL EDUCATION
fracture, distal fibula . . . . . . . . . . . . . . . . 20 De Alba, David F. . . . . . . . . . . . . . . . . . . . 14 Intentional torts . . . . . . . . . . . . . . . . . . . . 11
Klenske, Mary Anne M.A. . . . . . . . . . . . . . 19
fracture, fibula . . . . . . . . . . . . . . . . . . . . . . 20 Fitzgerald, Michael W. . . . . . . . . . . . . . . . 16 Medical malpractice . . . . . . . . . . . . . . . 5,14
Pearlman, Paula D. Esq. . . . . . . . . . . . . . . 19
fracture, toe . . . . . . . . . . . . . . . . . . . . . . . . . 7 Marcus, Michael D. . . . . . . . . . . . . . . . . . . 20 Motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . 6
Powell, Ronald J. Ph.D. . . . . . . . . . . . . . . . 19
knee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Marmaro, Marc R. . . . . . . . . . . . . . . . . . . . . 9 National origin discrimination . . . . . . . . . 9

leg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,15 Medel, Kenneth J. . . . . . . . . . . . . . . . . . . . 13 Negligent repair

TECHNICAL
Hamze, Dave . . . . . . . . . . . . . . . . . . . . . . . 13
Villalpando, Ismael . . . . . . . . . . . . . . . . . . 13
VOCATIONAL REHABILITATION
Bennett, Edward L. M.A. . . . . . . . . . . . . . . 7
limp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
loss of consortium . . . . . . . . . . . . . . . . . . . 14
loss of parental guidance . . . . . . . . . . . . . 17
lower back . . . . . . . . . . . . . . . . . . . . . . . . . . 6
nondisplaced fracture . . . . . . . . . . . . . . . . 20
Mohr, Anthony J. . . . . . . . . . . . . . . . . . . . . . 6
Oldendorf, Margaret L. . . . . . . . . . . . . . . . . 8
Shaller, Frederick C. . . . . . . . . . . . . . . . . . . . 5
Topics
and/or maintenance . . . . . . . . . . . 8,20
Pedestrian . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Podiatrist . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Premises liability . . . . . . . . . . . . . . . . 8,13,20
Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Broadus, Paul M.A. . . . . . . . . . . . . . . . . . . . 7 physical therapy . . . . . . . . . . . . . . . . . . . . 20 42 Usc 1983 . . . . . . . . . . . . . . . . . . . . . . . 16 School . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

pulmonary/respiratory . . . . . . . . . . . . . . . 15 Ada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Sidewalk . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Injuries
radiculopathy . . . . . . . . . . . . . . . . . . . . . . 20 Breach of contract . . . . . . . . . . . . . . . . . . . 11 Single vehicle . . . . . . . . . . . . . . . . . . . . . . . 6
ankle . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,20 scar and/or disfigurement . . . . . . . . . . . . . 6 California labor code . . . . . . . . . . . . . . . . . . 9 Store . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ankle, sprain/strain . . . . . . . . . . . . . . . . . . . 8 scar and/or disfigurement, face . . . . . . . . 6 Civil rights . . . . . . . . . . . . . . . . . . . . . . 16,18 Trip and fall . . . . . . . . . . . . . . . . . . . . . . . . 13

bedsore/decubitus ulcer/pressure sore . . . 6 skin graft . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Workplace . . . . . . . . . . . . . . . . . . . . . . . . . . 6

breast implant, damage . . . . . . . . . . . . . . 14 strains and sprains . . . . . . . . . . . . . . . . . . . 8 Conversion . . . . . . . . . . . . . . . . . . . . . . . . . 11 Wrongful confinement . . . . . . . . . . . . . . . 16

buttocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 swelling . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Crosswalk . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Wrongful conviction . . . . . . . . . . . . . . . . . 16

reporting procedure: The case reports in this publication are based on leads gathered from various sources, including submissions from
attorneys, court dockets and articles appearing in ALM publications or on news wires.
We begin the reporting process by speaking to an attorney involved in the case and preparing a draft report. We then attempt to contact counsel
for all parties via fax and phone. If an attorney does not respond by press time, we note this in the published text. Otherwise, we incorporate all
comments we receive, subject to editing for style, clarity, grammar, brevity and sense.
In addition to the amount awarded by the jury or judge, reports include, where applicable, the plaintiff’s “net” recovery, arrived at after factoring
in: plaintiff’s comparative liability as well as the liability assigned to previously settling defendants; high-low agreements; amounts paid by settling
defendants or set-offs of said amounts; stipulated damages not submitted to the jury; punitive damages, interest, and attorney fees and costs if
awarded by judge following verdict (otherwise in gross award); post-trial remittitur or additur and the impact of trebling and statutory caps.

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as published in

October 17, 2016 October 17, 2016

NEW YORK disc at L4-5; herniated disc at L5-S1; hypertrophy; knee surgery;
lateral meniscus, tear; leg; physical therapy; shoulder; tendinitis/
KINGS COUNT Y
tendinosis
Murray completed his workday without having sought medical
CONSTRUCTION attention. After three days had passed, he presented to a doctor. He
Labor Law — Workplace — Workplace Safety — Slips, Trips & Falls claimed that his back, his left leg, his left shoulder and his neck were
painful. He was referred for further evaluation.
cervical region, that Murray’s lumbar injuries were degenerative
conditions that predated the accident, and that Murray can resume
work. Defense counsel claimed that Murray underwent chiropractic
treatment after a 1993 motor-vehicle accident that was the subject
of a prior personal-injury lawsuit filed by Murray.
RESULT The parties negotiated a pretrial settlement. Bonland

Worker claimed rooftop fall caused injuries Murray ultimately claimed that he sustained a tear of his left knee’s
lateral meniscus, herniations of his L4-5 and L5-S1 intervertebral
Industries’ insurer agreed to pay $7.4 million.

of spine, knee
as published in
discs, and trauma that produced a protrusion of his C5-6 disc. He
further claimed that his left shoulder sustained trauma that led
INSURER(S) Selective Insurance Group Inc. for Bonland
Industries
to hypertrophy of the shoulder’s acromioclavicular joint. He also
SETTLEMENT $7,400,000 air-conditioning unit that was located on a building’s roof. While claimed that the shoulder developed tendinosis. He claimed that PLAINTIFF
he was attempting to remove a panel that was affixed to the unit, he later developed pain that radiated to his left leg, from his back. EXPERT(S) Kristin K. Kucsma, M.A., economics, Livingston,
CASE Kenden A. Murray v. 502-12 86th Street LLC; The he fell off of a steel beam that was situated some three feet above Murray’s treatment began with physical therapy. The treatment NJ (did not testify)
February 6, 2017 TJX Companies Inc. d/b/a T.J. Maxx; Schimenti the roof’s surface. Murray landed on the roof, and he claimed that was typically rendered three times a week. The treatment is ongoing, Edwin F. Richter, M.D., physical medicine,

California
Construction Co.; Schmenti Construction Co. Inc.; he sustained injuries of his back, a knee, his neck and a shoulder. though its frequency has decreased to weekly intervals. Stamford, CT (did not testify)
& Pioneer General Construction Co. LLC, No. Murray sued the premises’ owner, 502/12 86th Street LLC; the On Oct. 6, 2011, Murray underwent arthroscopic surgery that Douglas C. Schottenstein, M.D., neurology, New
13691/11 premises’ tenant, TJX Cos. Inc.; the construction project’s general addressed his left shoulder. On March 8, 2012, he underwent York, NY (treating doctor; did not testify)
los angeles count y COURT Kings Supreme contractor, Schimenti Construction Co. LLC; and another one of arthroscopic surgery that addressed his left knee. He subsequently Rohit B. Verma, M.D., orthopedic surgery, Great
DATE 3/13/2016 the project’s contractors, Pioneer General Construction Co., LLC. underwent administration of two epidural injections of steroid- Neck, NY (treating doctor; did not testify)
corPorations Murray alleged that the defendants violated the New York State based painkillers. In September 2013, he underwent a pair

Officers’ and Directors’ Liability — Insurance — Coverage — Contracts PLAINTIFF Labor Law. of surgeries that involved fusion of the anterior and posterior DEFENSE
ATTORNEY(S) Stephen J. Murphy, Block, O’Toole & Murphy, Schimenti Construction and TJX impleaded Murray’s employer, regions of his spine’s L5-S1 level. On Feb. 16, 2016, he underwent EXPERT(S) Peter D. Capotosto, M.S., C.R.C., vocational

Defendant broke promise to have adequate LLP, New York, NY

David L. Scher, Block, O’Toole & Murphy, LLP,
Bonland Industries Inc. Schimenti Construction and TJX alleged
that Bonland Industries controlled and directed Murray’s work
implantation of a device that provided pain-relieving stimulation of
his spine. Murray claimed that the device produced minimal relief.
rehabilitation, Rochester, NY (did not testify)
Richard Lechtenberg, M.D.,

insurance: plaintiff New York, NY functions. They sought contractual indemnification.

Pioneer General Construction did not answer the summons, and
Murray further claimed that he suffers residual pain, that he
suffers a residual diminution of his back’s range of motion, that
neurology, Brooklyn, NY (did not
testify)
DEFENSE Murray’s counsel did not pursue the claim against it. The matter he suffers a residual diminution of his left knee’s range of motion, Jane D. Mattson, Ph.D., life-care planning,
Decision $442,795 litigation,ATTORNEY(S)
the case went Mark
to J.the
Dolan,
Court Napierski,
of AppealVanDenburgh,
before proceeded against the remaining defendants. that he suffers a residual diminution of his left shoulder’s range Norwalk, CT (did not testify)
Taylor could stop paying Napierski
attorney &fees.
O’Connor, L.L.P., Albany, NY Murray claimed that the air-conditioning unit’s panel could of motion, and that he suffers a residual diminution of his neck’s Jeffrey Passick, M.D., orthopedic surgery,
case Tucker Taylor v. Llewellyn Werner, (502/12 86th
Taylor sued Werner, alleging Street
breach of LLC, TJX Cos.)
contract. not have been accessed without standing on the beam, which was range of motion. He also claimed that his residual effects prevent Brooklyn, NY (did not testify)
No. SC121454 Taylor claimed that he agreed
William C.to serve onFabiani
Lamboley, the board
Cohenof& Hall, slightly less than 6 inches wide. Murray’s counsel contended that the his resumption of work. Sondra J. Pfeffer, M.D., radiology,
court Superior Court of Los Angeles County, directors on the condition LLP,that
New heYork,
would NYhave no financial
(Schimenti Construction Co. incident stemmed from an elevation-related hazard, as defined by Murray sought recovery of past and future medical expenses, past New York, NY (did not testify)
Santa Monica exposure and that theLLC) company would have adequate Labor Law § 240(1), and that Murray was not provided the proper, and future lost earnings, and damages for past and future pain and Jeffrey M. Spivak, M.D., spinal surgery, New
JuDge Nancy L. Newman D&O liability insurance, Karen which wouldBoeggeman,
A. Ondrovic, indemnifyGeorge
him & Corde, safe equipment that is a requirement of the statute. suffering. York, NY (did not testify)
Date 10/27/2016 from losses or advancement of defense costs in the event of
P.C., White Plains, NY (Bonland Industries Inc.) Murray’s counsel moved for summary judgment of liability. The Defense counsel contended that Murray did not sustain a
a legal action for allegedNone
wrongful acts
reported while General
(Pioneer he was acting
Construction Co., motion was unopposed and granted. The third-party claim was also significant injury, given that Murray worked during the aftermath EDITOR’S NOTE This report is based on information that was pro-
Plaintiff in his capacity as a director and officer. Taylor further
LLC) decided via summary judgment. Bonland Industries was obligated to of the accident and that three days passed before Murray sought vided by plaintiff’s counsel. Pioneer General Construction’s counsel
attorney(s) Dale E. Motley, Ogden & Motley, claimed that Werner agreed to those conditions, but failed
indemnify Schimenti Construction and TJX. The matter proceeded medical attention. The defense’s expert orthopedist submitted a was not asked to contribute, and the remaining defendants’ counsel
Los Angeles, CA to ensure the company had adequate insurance.
FACTS & ALLEGATIONS On April 29, 2011, plaintiff Kenden to damages. report in which he opined that Murray exaggerated his symptoms. did not respond to the reporter’s phone calls.
Plaintiff’s counsel argued that Werner breached an
Murray, 38, a union-affiliated installer of sheet metal, worked The defense’s expert spinal surgeon submitted a report in which
Defense oral agreement, which provided that if Taylor served
attorney(s) Llewellyn Werner, pro se at a construction
on the board, then Taylor sitewould
that was
notlocated
have at 502financial
any 86th St., in the Bay INJURIES/DAMAGES arthroscopy; decreased range of motion; disc he opined that Murray did not sustain a traumatic injury of the –Jack Deming
exposure Ridge sectionthe
and that of Brooklyn.
company Murray
wouldwas havemodifying
adequatea commercial protrusion, cervical; epidural injections; fusion, lumbar; herniated
facts & allegations In 2010, plaintiff Tucker Taylor D&O insurance. W W W. V E R D I C T S E A R C H . C O M
began serving on the board of directors of a company with Werner, who appeared pro se, denied ever making any 120 Broadway, 5th Floor, New york, Ny 10271 • 1.877.257.3382 • www.almrepriNts.com • © 2017 alm media properties, llc. all rights reserved. Further duplicatioN without permissioN is prohiBited. #061-07-17-03
which Llewellyn Werner was involved. such agreement with Taylor.
Werner previously requested that Taylor serve on
the board, and Taylor allegedly agreed under certain inJuries/Damages Taylor incurred attorney fees as a
conditions. As a result, Taylor served on the board from result of defending himself in the 2012 lawsuit against the
2010 to 2012. company where he served on the board. Thus, he sought
In 2012, Taylor was sued based on his position as a member recovery of the attorney fees he incurred in defending
of the board. The suit was bought by a limited liability himself.
company that was owned by the former Chief Executive
Officer of the company. The former CEO allegedly owned result Judge Nancy Newman found that Werner breached
more than 10 percent interest in the company that involved the contract he had with Taylor. She also determined that
both Taylor and Werner. When Tucker tendered the claim Taylor’s damages totaled $442,794.70.
for defense, he learned that the company’s directors and
officers liability insurance policy contained an exclusion for eDitor’s note This report is based on information that
claims brought by 10-percent shareholders. was provided by plaintiff’s counsel. Llewellyn Werner was
Although the insurer defended under a reservation of not asked to contribute.
rights, Taylor was forced to defend himself and incur

14” x 21”*
attorney fees. Although Taylor ultimately prevailed in the –Priya Idiculla

w w w. v e r D i c t s e a r c h . c o m

120 Broadway, 5th Floor, New york, Ny 10271 • 1.877.257.3382 • www.almrepriNts.com • © 2017 alm media properties, llc. all rights reserved. Further duplicatioN without permissioN is prohiBited. #061-04-17-10

11.5” x 14”*

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