Aubrey Ford and Irv Cantor win jury verdict of $1.2 million for plaintiff with mild traumatic brain injury.
Premises liability action in Richmond Circuit Court. Randy D. Webb v. Garcia Family, Inc. (April, 15, 2010).
The Plaintiff, a 46-year old construction worker, was injured while eating dinner with a friend at the defendant’s restaurant. A four-pound ornamental clay bell that was attached to a metal display stand on top of the booth above the Plaintiff detached from the stand and fell two feet onto the Plaintiff’s head. The Plaintiff sustained a mild traumatic brain injury as a result. Defendant argued that the bell struck the Plaintiff on the right shoulder and never struck his head.
Plaintiff’s engineering expert, Charlie Crim, testified that the decorative hemp twine used to hang the bell was unsafe and was not rated for any load. He further testified regarding the organic nature of the hemp and its propensity to degrade in humidity, heat and exposure. This degradation was accelerated by frequent movement of the bell. Finally, he testified that the failure of the hemp would occur progressively with deterioration of the exterior strands first. Thus, the expert testified that the failure of the connection should have been foreseeable to the defendant restaurant. Further, Plaintiff offered spoliation arguments on the grounds that the defendant cut the remaining bell from its connection to the stand and discarded the twine after the incident, depriving the Plaintiff of an opportunity to photograph and preserve the connection for additional proof of causation.
Plaintiff never lost consciousness from the impact and attempted to make light of the incident while he was in the restaurant. However, after departing the restaurant, the Plaintiff and his friend testified regarding the Plaintiff’s headaches, nausea, confusion and dizziness. The symptoms persisted, and three days later, Plaintiff went to the emergency room where the doctor observed a four-centimeter contusion on the crown of Plaintiff’s head. Subsequent visits confirmed post-concussion syndrome and memory loss. His initial CT scan and MRI were normal. Plaintiff attempted to work, but was unable to do so due to dizziness, lethargy and nausea. Plaintiff was ultimately referred by his treating physician to neuropsychiatrist Dr. Gregory O’Shanick for consultation and treatment. Dr. O’Shanick diagnosed the Plaintiff with a mild-traumatic brain injury. Neuropsychologist Dr. Jeffrey Kreutzer confirmed deficits in attention, concentration, visual concentration, memory. Radiology expert Dr. Mark Herbst testified that the Plaintiff’s diffusion tensor imaging MRI scan and PET scan confirmed damage to the right frontal lobe and left parieto-occipital region of the brain. Dr. O’Shanick testified that this damage was caused by the bell incident. He also confirmed that the Plaintiff’s symptoms were consistent with damage to those two areas of the brain.
Defendant contended that Plaintiff’s prior medical history included a constellation of neurologic problems including depression, headaches, and various psychiatric conditions. Defendant’s expert neuropsychologist and psychiatrist testified that the Plaintiff was suffering from depression, but that the depression was preexisting and chronic. They also testified that the Plaintiff’s symptoms were not consistent with a mild traumatic brain injury.
Testimony from numerous friends, family members and co-workers were key to establishing a transformation of the Plaintiff: before the bell incident, the Plaintiff was outgoing, happy, hard-working while after, the Plaintiff experienced substantial balance disorder, depression, memory deficits, severe headaches and other physical symptoms.
The Plaintiff incurred medical bills of $23,000 and presented evidence of a life care plan composed primarily of future medications of $170,000. Plaintiff had regularly been taking five medications since the incident. Plaintiff chose not to present a lost wage or diminished earning capacity claim.
Prior to trial, the parties argued numerous Motions in Limine regarding a videotape interview of the Plaintiff by defendant’s expert, cumulative lay witness testimony, character evidence, employee immigration issues, criminal background, prior psychiatric hospitalization, neuropsychologist “malingering” testimony, admissibility of PET scan evidence, and other issues.
Jury returned verdict of $1,200,000 with $193,000 in special damages.