Recent Personal Injury Jury Awards and Settlements

Recent Personal Injury Jury Awards and SettlementsWoman awarded $8.4 million for Bad Faith Denial of Insurance Claim
NEW BRUNSWICK, NJ – A Superior Court jury has awarded $8.4 million to a woman who sued her own auto insurance company for denying her claims in two… Read More

$34.5 Million Recovery for Man Hit by Semi Truck
A Los Angeles Superior Court jury has awarded $34,555,220 to a man who suffered a below-the-knee amputation after he was hit by the trailer of a semi… Read More

NC Homeowners get refund plus $1.1 million damages for Defective Construction
Jurors awarded owners of four homes in the Mackintosh on the Lake development in North Carolina more than $1.1 million in damages Wednesday for poor… Read More

$19 Million Verdict Awarded to CA Crash Victim of Distracted Driver
A young California mother who was left in a persistent vegetative state after being crashed into at 65 mph by a negligent driver has recovered a $19 jury verdict. Attorney Maryam Parman of the Averk Law Firm in Irvine, CA, pursued the claim following a rear end collision on Nov. 27, 2011, when the Read More

Jury Awards Woman $30 Million After Throat Catches Fire
A 55-year-old woman who can no longer speak or breathe on her own after her endotracheal tube caught fire during surgery to remove polyps from her vocal cords has been awarded $30 million in her malpractice lawsuit, a jury in Seattle ruled last week. The patient, Becky Anderson, who was Read More

$1.2M Verdict Upheld Against Muslim Hotel Owner for Jewish Discrimination

Hotel_Shangri-La_Santa_Monica (1)

Fundraising event shut down after hotel owner found out organization attendees were Jewish.

The Santa Monica, CA, Shangri-La Hotel and its Muslim owner are unable to evade more than $1.2 million in damages and $2 million in attorney’s fees for shutting down an event because the fundraisers were Jewish.

Tehmina Adaya is the owner and operator of the hotel, where a pool party was being held as a fundraiser for the Leadership Group of the Friends of the Israeli Defense Forces (FIDF).  Adaya, according to the court opinion, became “noticeably agitated” after reviewing one of FIDF’s pamphlets, and told the hotel’s former food and beverage director, Nathan Codrey, who coordinated the party, that she did not “want any [f—-ing] Jews in the pool,” according to court documents.

Unruh act violated

The California Unruh Civil Rights Act requires that business establishments provide equal accommodations and services to all persons regardless of religion, race, color, sex, ancestry, national origin, disability or medical condition.  According to the court opinion, 18 plaintiffs testified that they were “systematically denied hotel services based on their religion,” and were discriminated against by Adaya and Shangri-La by their refusal to “provide them services at the hotel pool because they were Jewish.”

Adaya ordered Shangri-La staff to shut down the pool party by locking the pool gates, requiring the group to remove their banners and guests to remove their FIDF T-shirts, and dismantling the roped event dividers.

Guests receive hostile treatment

Several plaintiffs observed and overheard Adaya’s agitated behavior and remarks, including telling a security guard to “get them out, get them out, get them out,” and asking a non-Jewish hotel guests if she wanted Adaya to “get these people off the lounge chairs” according to the court opinion.  Adaya and her husband stared down the remaining FIDF guests for “at least an hour to an hour and a half,” according to Codrey’s testimony in the court document.

Codrey repeated Adaya’s comments to the event organizer and also repeatedly apologized for Adaya’s actions, which he called “blatant anti-Semitism.”  Expert witness testimony was provided by Rabbi Wolpe, who testified that the hotel staff and owner’s conduct “could fairly be characterized as anti-Semitic.”

Owner’s Muslim background

Adaya and Shangri-La argued on appeal that the rabbi’s testimony and evidence of Adaya’s Pakistani Muslim background was prejudicial error. The appeal court disagreed, as testimony from Codrey indicated that Adaya repeated that the event was “embarrassing to her; that she is a Muslim, her parents or family are Muslims, and this is just absolutely wrong.”

The California court of appeals upheld the damages awarded by a jury to 11 plaintiffs after a 10-day trial and six days of jury deliberations, awarding $1.2 million in actual and statutory damages and $2 million in attorneys fees.

Adaya and Shangri-La argued many issues on appeal, which were denied by the court, including a lack of sufficiency of evidence proving their cessation of the event was not motivated by discrimination, but instead on the basis of “valid policies and practices” that “never existed in writing, and appeared to be applied at the whims of Adaya.”

Adaya also asserted her statements made to Codrey were inadmissible hearsay and the Rabbi’s expert witness testimony, including her religious background, were improperly admitted as evidence.  The appeal court denied these assertions.

Court upholds most of jury decisions

The court reversed the $405,000 punitive damage award for the intentional infliction of emotion distress, as it was duplicative of the statutory damages awarded under the Unruh act, which the court confirmed were punitive in nature.

The court also remanded the attorney fees award associated with the event promoter’s claims to the trial court for recalculation, however the attorney fees for the individual plaintiffs discriminated against were affirmed.  The plaintiffs were awarded damages ranging from $26,000 to $180,000, totaling to nearly $1.2 Million.

The case is Paletz v. Adaya, California Court of Appeal Case No. B247184, 2014 WL 7402324, at *1 (Cal. Ct. App. Dec. 29, 2014).

NYC Liable for $3 Million for Unsafe Workplace

NYC Liable for $3 Million for Unsafe Workplace

Lopez fell backward and was impaled by an uncapped piece of vertical rebar (steel reinforcement) causing serious life-long injuries.

New York’s Appellate Division Second Department reinstated a  $3 million future pain and suffering award against the New York City Department of Environmental Protection for state labor law violations.

Rafael Lopez filed suit against the city and the department collectively after he was injured while working on the construction site at Newtown Creek Wastewater Treatment Plant. The plant is owned by the City of New York and managed by the New York Department of Environmental Protection.

Lopez fell backward and was impaled by an uncapped piece of vertical rebar (steel reinforcement) causing serious life-long injuries. He required multiple hospitalizations, spinal fusion surgery, and physical therapy.

Due to the nature and extent of Lopez’s injuries, the jury awarded him past and future pain and suffering totaling $5 million.

The city denied that it was liable for the accident and raised issues of comparative negligence, a common defense to a labor law suit.  The city contended the rebar was not an integral part of the work performed on the site.

The defendant was unsuccessful after the Kings County Supreme court granted the plaintiff’s motion for summary judgment on the issue of liability.

On appeal, the city moved for a new trial on the future pain and suffering damages. The court agreed with the original jury award stating the $2,000,000 past pain and suffering did not materially deviate from reasonable compensation and for the same reason the award for $3,000,000 future pain and suffering would be reinstated.  Lopez v. NYC Dept. of Envtl. Prot., 123 A.D.3d 982 (N.Y. App. Div. 2014).

Duty to Protect Employees

Employers have a general duty to provide reasonable and adequate protection to the lives, health, and safety of all persons employed.  N.Y. LAB.  Art 7 §200.

Under the New York Labor Law § 241(6), an employer has a non-delegable duty to provide reasonable and adequate protection to all those employed, especially in areas where construction, excavation and demolition work is performed.

Plaintiff’s counsel also relied on the New York Industrial Code, which provides specific guidelines on how construction areas must be kept safe. The code requires that areas where persons pass through or work shall be kept free dirt, debris, scattered tools, and materials.

Not only should the areas be free from accumulation but also free from sharp projections consistent with the work performed.  Industrial Code § 23-1.7(e)(2).  As is the case in Lopez, any violations of this provision are filed under the Labor Law.

The plaintiff was responsible for showing his injuries were a proximate cause of the defendant’s violation of the Industrial Code and the NY Labor Law.

Although the defendant disputed their liability, the code is clear that employers’ liability is more likely to occur if there are clear violations of safety regulations.

Request for Reduced Damages Award

In addition to its request for a new trial for damages, the defendant requested a reduced future pain and suffering award from $3 million to $1.5 million.

In trial court, Lopez agreed to a remititur of the pain and suffering award. This fact helped the judge determine Lopez was entitled to request up to the full or partial jury award for future pain and suffering.

Generally, if there is a request by the opposing party for a reduced jury award, it may be in the party’s benefit to agree to a reduction. If not, a judge may reduce the jury award  to an amount less than what was previously awarded.

In addition to the reinstated future pain and suffering award, Lopez was awarded past and future lost income, past and future medical expenses, and past pain and suffering.  Lopez received a total jury award of $6.7 million.

The recent opinion may be viewed hereLopez v. NYC Dept. of Envtl. Prot. 123 A.D.3d 982 (N.Y. App. Div. 2014).

Of counsel for respondent, Brian J. Isaac of Pollack, Pollack, Isaac & De Cicco, LLP New York & Block O’Toole & Murphy.

Fabiani Cohen & Hall, LLP,  Woodbury, NY for appellants, New York Dept of Environmental Protection.

New Mexico Court: Auto Dealer’s Arbitration Clauses Unconscionable

arbitration agreement

The agreement left Santander with access to the courts and the option to repossess the vehicle; Dalton was left to settle her claims through arbitration.

The New Mexico Court of Appeals affirmed that a lender’s arbitration scheme was unconscionable, because it gave itself access to the courts, but not to the borrower.

Eileen Dalton’s claims involved two finance contracts made with a car dealership operated by Performance Automotive Group.

She made timely payments to the finance company and to her surprise, both vehicles were repossessed shortly after purchase.

Defendant Santander Consumer USA purchased the finance contracts from Performance Automotive Group.

After the second vehicle was repossessed without reason, Dalton filed suit against Santander for breach of contract, fraud, conversion, breach of warranty of title, and violations of the Uniform Commercial Code and the Unfair Practices Act.

On appeal, Santander argued that giving itself the self-help and small claims options were not unconscionable and that the district court had improperly shifted the burden of proof to the defendant on the issue of the small claims provisions.

One-Sided Arbitration Clause

Dalton originally financed a Cadillac and made payments on time for eight months. Unexpectedly, the Cadillac was repossessed because Performance failed to pay a prior lien.

At the dealership’s request, Dalton agreed to receive a credit for the payments made on the first vehicle toward the purchase of a second vehicle. Dalton signed a second finance and purchase agreement with a higher monthly payment.

Shortly after this transaction, the second repossession caused Dalton to initiate the suit. She was left without a vehicle or a refund for payments made.

Each finance contract contained an identical arbitration clause with a separate statement exempting certain issues from mandatory arbitration.

The arbitration clauses were one sided and left the Plaintiff without a remedy.  The separate clause at issue stated:

You and we retain any rights to self-help remedies, such as repossession. You and we retain the right to seek remedies in small claims court for disputes or claims within that court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither you nor we waive the right to arbitrate by using self-help remedies or filing suit.

The clause on its face is neutral and seemed favorable to both parties, and for this reason Santander requested the court to instruct Dalton to comply with the agreement.

The district court disagreed and rejected the motion.

Practical Effects Are Unconscionable

Unconscionability is a doctrine that allows the court to void contracts or agreements that are unreasonably unfair to one party.

The defendant argued the agreement’s language was used to show repossession as an option to the lender that would be exempt from the courts and arbitration.

However, this court decided even if the provision seemed facially neutral, its application left Santander with access to the courts and the option to repossess the vehicle; Dalton was left to settle her claims through arbitration.  Rivera v. Am. Gen. Fin. Serv, 242 P.3d 351, 354 (NM Ct. App. 2010) (borrower filed suit against lender for “Covered Claims” provisions that excluded borrower’s claims from judicial remedies).

Generally, if a borrower fails to pay the loan the lender may repossess the vehicle and sue the borrower for the deficiency in small claims court. Santander’s clause allowed the lender to sue for any deficiencies and repossess the vehicle.

Any remedies to the borrower would be subject to the arbitration clause, making the clause unfairly one-sided.

Burden of Proof

It is the plaintiff’s burden to present evidence to show the enforcement of such contracts or agreements were unfairly one-sided. Once Dalton presented enough evidence the burden of proof shifted to the defendant to prove the opposite.

Santander contended the court improperly raised and decided the issue of small claims exemption sua sponte without Dalton presenting any evidence.

The court quickly dismissed the argument stating there is no authority to prove the burden is shifted because the court asks the opposing party questions on the issue at a hearing.

The court said that Santander received adequate notice of Dalton’s defense to the small claims exemption and was aware the court would consider the point. The plaintiff sufficiently argued the small claims provisions undoubtedly favored the lenders.

Although arbitrators have the ability to decide equitable and statutory claims, this case ultimately gives borrowers an opportunity to have claims central to the agreement heard through judicial proceedings and not through forced arbitration.

This case is Dalton v. Santander Consumer USA, Inc, No. 33,136 (N.M. Ct. App. Dec 30, 2014). 

Plaintiff’s counsel was Adrian Alvarez of Public Justice, P.C., Washington, D.C.

Representing the Defendant, Ross L. Crown and Jason C. Bousliman of Lewis Roca Rothberger LLP, Albuquerque, NM.

Florida Court Finds No Expectation of Privacy on Facebook

no privacy in phonos on facebookThe case of a possibly malingering plaintiff has led a Florida court to rule that Facebook users have no right of privacy in the photos they put online.

There has been much debate lately — sparked by the trend of self-written “privacy disclaimers” popping up all over social media — about how the use of social media outlets coincides with social media users’ privacy expectations. A three-judge panel in Florida on January 7, 2015, effectively settled the debate in the Fourth District after ruling there can be no reasonable expectation of privacy on social networking sites.

Slip and fall at Target

This decision both sets a precedent for personal injury litigators in Florida and poses serious implications for personal injury plaintiffs, such as plaintiff Maria Nucci. It was her appeal regarding her recent slip-and-fall case against Target Corp., requesting relief to quash an order for production of Facebook photographs, from which this precedent-setting determination was made.

Maria Nucci was employed by Target Corp. where, she alleges, she suffered a severe slip-and-fall at work. After filing suit against Target Corp. for the harm she sustained, a deposition took place in September, 2013, during which Target requested access to Nucci’s Facebook profile for the purposes of obtaining photographs. Target thought the photographs to be directly relative to the law suit because the law suit itself puts Nucci’s physical and mental condition into play.

Two days after Nucci’s objection to releasing the photographs during her deposition, 36 photographs vanished from her Facebook profile page. Target moved to compel inspection of Nucci’s Facebook, arguing it should be permitted to see the photos because it would allow for a comparison of her current physical condition and her life prior to the incident.

Powerfully relevant

The three-judge panel, consisting of Justices Gross, Stevenson and Gerber, noted the photographs at issue are “powerfully” relevant in this case. Acknowledging the ability of these photos to determine how exactly the plaintiff’s quality of life changed after the incident, the justices pointed to Target’s store surveillance footage. The recording, which was captured right after Nucci sustained her injuries and shows Nucci carrying two heavy objects, suggests Nucci potentially grossly exaggerated her injury claims.

Originally, the court denied Target’s request for production of the photographs as too vague, but later granted the motion in part once Target conceded the request be limited only to photographs depicting Nucci. Nucci, of course, argued the privacy setting on her Facebook account gave her a reasonable expectation of privacy, because it generally prevents the public from accessing her page without her permission.

The very nature of Facebook and all social media accounts weakened Nucci’s argument when the judges pointed to the acknowledgment all Facebook account users must make when originally creating their accounts. Facebook explicitely does not guarantee privacy and users must acknowledge that their personal information may be shared with others.

Minimal expectation of privacy

“Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships,” said the District Court of Appeal of the State of Florida, Fourth District. Stating Nucci has “but a limited privacy interest, if any, in pictures posted on her social networking sites,” the panel found the relevance far overwhelmed Nucci’s minimal expectation of privacy on social networking sites.

Nucci has been ordered by the court to produce copies of pictures she had uploaded onto all social media sites and all pictures associated with cell phone accounts she had used in the last two years. Nucci did not challenge the order as it related to her cell phone accounts.

According to the attorneys for Target Corp., “. . . [T]he courts in Florida now have a definitive rule to follow with regard to what is discoverable in terms of the newly emerging issue of social media in the context of personal injury cases. Before this ruling, the trial courts throughout the state of Florida varied significantly in terms of what was discoverable.”

The case is Maria F. Leon Nucci and Henry Leon v. Target Corp. et al, case number 4D14-138 in the District Court of Appeal of the State of Florida, Fourth District.

Philip Morris Liable for $17.2 million for Smoking Addiction

Feb 4. 2015:

RJ Reynolds Hit With $6M Verdict In Engle Trial

A Florida federal jury on Thursday delivered a $6 million dollar verdict against R.J. Reynolds Tobacco Co. and in favor of a Florida woman whose husband died of smoking-related causes. After a trial that began Jan. 20, the jury assigned equal responsibility to R.J. Reynolds and to Henry Gray, who died in 1995, for his smoking related death.

See also:

Philip Morris Liable for $17.2 million for Smoking Addiction.

A Florida federal jury found that Philip Morris USA is liable to Florida resident Donna Brown and awarded her $17.2 million in compensatory and… Read More

$35 Million Awarded to Smoker in Engle Tobacco Case

Originally posted Posted on 

A Florida jury has found Philip Morris USA, Inc., the makers of Marlboro brand cigarettes, liable for $35 million in damages to a smoker who endured two lung transplants as a result of his emphysema and chronic obstructive pulmonary diseases caused by cigarette smoking.

Richard Boatright, a 61-year old man who began smoking at the age of 12, is one of thousands of plaintiffs who were a part of the first-ever smokers’ class action case Engle v. Liggett Group, Inc.

The case began as a national class action of more than one million smokers and survivors who, due to their addiction to cigarettes and the tobacco industry’s misrepresentations about the risks of smoking, sustained smoking–related injuries.  After several years of litigation, the class was later reduced to thousands of Florida residents.

The class representatives were awarded compensatory damages in 2000, which were offset by their comparative negligence, and also awarded a $145 billion verdict for punitive damages to be divided amongst the entire class.

Verdict vacated in 2006

legal news for consumers

Tobacco industry internal documents revealed that the tobacco industry was aware of and began studying the carcinogenic effect on smokers in the 1960’s, yet continued to mislead the public and ban all publication of their findings.

Upon appeal by the tobacco companies, the class was decertified in 2006 and the $145 billion verdict was vacated.  According to the court ruling, the class action was not “feasible” because of individualized issues of “causation, comparative fault, and damages.”

Instead, plaintiffs in the class were permitted to file individual lawsuits within one year of the ruling, using the core findings from the jury keeping a “res judicata effect in those trials.”  More than 8,000 individual plaintiffs fitting within the former class have filed individual suits in cases that are now referred to as the Engle Progeny.  Following are the res judicata findings, according to the court ruling, that can stand for the class:

  1. Smoking cigarettes causes various smoking related diseases, cancers and cell carcinomas.
  2. The nicotine in cigarettes is addictive.
  3. Tobacco company defendants placed cigarettes on market that were defective and unreasonably dangerous.
  4. Tobacco company defendants concealed or omitted material information concerning the health effects or addictive nature of smoking cigarettes.
  5. Tobacco company defendants had intentions that smokers and the public would rely on the concealed or omitted material to their detriment.
  6. All of the tobacco company defendants sold or supplied cigarettes that were defective.
  7. The cigarettes did not conform to representations of fact made by the tobacco company defendants.
  8. That all of the tobacco company defendants were negligent.

 

History of escaping liability

Prior to the Engle Progeny cases, tobacco companies have had a long history of escaping liability for the harm caused by cigarettes. When the first lawsuits were brought against tobacco companies, they were able to evade strict liability and implied warranty claims when courts ruled that tobacco companies had no more knowledge than a consumer “as to the dangerous qualities” of cigarettes. (Latrigue v. R.J Reynolds Tobacco Company 1963).

As long as the cigarettes “conform[ed] to the standard of the cigarette industry” and “contained no foreign matter that [cigarette manufacturers] intended to exclude from its product” tobacco companies were not required to be an “insurer against the unknowable” carcinogenic ingredients contained in their cigarettes, and were not held liable for plaintiff’s cancer illness or deaths. (Ross v. Philip Morris &Co. 1964).

Tobacco companies could no longer deceive consumers or courts about their lack of knowledge of cigarettes cancer causing substances once the U.S. Surgeon General report on the dangers of cigarette smoking prompted Congress to enact the Federal Cigarette Labeling and Advertising Act of 1965 (FCLAA) and Public Health Cigarette Smoking Act of 1969 (PHCSA).  According to the Centers for Disease Control (CDC) website tobacco legislation page, the acts:

  • Required a nationally uniformed package warning label
  • Prohibited cigarette advertising on the radio and television; and
  • Prevented states from regulating cigarette advertising or promotion for health related reasons

 

Link from smoking to cancer

Tobacco companies could no longer deny the causal link between cigarette smoking and cancer, but they developed a new defense against plaintiffs harmed by their cigarettes; preemption.

Plaintiffs’ claims against tobacco companies rested on theories of strict liability, express and implied warranty, and misrepresentation of products that are defective and harmful to consumers.  In the case of Cipollone v. Liggett Group, Inc. smoker Rose Cipollone died of lung cancer after 42 years of smoking.  The Third Circuit initially ruled that the FCLAA and PHCSA preempted any state law actions brought based on noncompliance with “warning, advertisement, and promotion obligations other than those prescribed in the [federal] Acts.”  (Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 511, 112 S. Ct. 2608, 2615, 120 L. Ed. 2d 407 (1992)).

After several appeals and nearly eight years of litigation, the Supreme Court found that the Labeling Acts did not preempt state claims of “express warranty, intentional fraud and misrepresentation, or conspiracy.” Only state claims of failure to warn based on Tobacco companies advertisements were pre-empted by the acts, according to the court opinion.

In 1998, after 46 states filed suit against the tobacco industry to recover costs for tobacco related illnesses, major tobacco companies and states settled in the $206 billion Master Settlement Agreement (MSA) (CDC website). Through the MSA proceedings, tobacco industry internal documents revealed that the tobacco industry was aware of and began studying the carcinogenic effect on smokers in the 1960’s, yet continued to mislead the public and ban all publication of their findings.

Chicago Woman Crushed by Truck Files Lawsuit against UPS

Chicago Woman Crushed by Truck Files Lawsuit against UPSA Chicago-area woman, who was struck and crushed by a UPS truck for 30 minutes until firefighters freed her, filed a negligence lawsuit against United Parcel Service.

Erin Hinner, 30, of Evanston, IL, was crossing Ashland Avenue in the crosswalk at Central Street on Dec. 22, 2014, when she was hit by the UPS truck. The UPS truck rolled over her and pinned her body under its axle. Hinner, a new mother, was rushed to the hospital in critical condition and was put in a drug-induced coma to help save her life.

“Erin suffered life threatening injuries as a result of the severe crushing her body suffered under the full weight of the UPS truck,” said her attorney Michael K. Demetrio of Corboy & Demetrio. “In addition, she missed her son’s first Christmas and other milestones mothers dream about experiencing with their children,” Demetrio added.

Corboy & Demetrio obtained an Emergency Order of Protection requiring UPS to preserve and protect evidence in the case. The order was granted by Cook County Circuit Judge James N. O’Hara and requires UPS to preserve all the cell phone records of the truck’s driver, as well as all data recording devices and/or systems for both the truck and
its driver at the time of the crash and the 24 hours prior.

The lawsuit also names UPS driver Gabriel Garcia as a defendant, alleging he was negligent, in part, by failing to stop and yield to a pedestrian within the right-of-way. Garcia allegedly told police he wasn’t even aware he ran over the victim until he heard her screaming under the truck.

The Case is Erin L. Hinner v. United Parcel Service, Inc. and Gabriel Garcia, Cook County Circuit Court, #2015L411.

Corboy & Demetrio is one of the nation’s premier law firms. The personal injury law firm represents individuals and their families in serious personal injury and wrongful death cases and is renowned for its achievements in the courtroom and for its contributions to the community.

Doctor Charged with Capital Murder of Medical School Professors

Dr. Anthony Garcia was a resident at the Creighton University Pathology program from 2000 to 2001.  He was fired for his "erratic behavior."

Dr. Anthony Garcia was a resident at the Creighton University Pathology program from 2000 to 2001. He was fired for his “erratic behavior.”

A Terre Haute, Indiana, doctor has been charged with four counts of capital murder of victims associated with the Creighton University Medical School pathology program, where he was fired from their residency program more than a decade ago.

Dr. Anthony Garcia could face the death penalty if he is convicted of killings that occurred five years apart from each other. In March 2008, Creighton University pathology professor Dr. William Hunter’s 11-year-old son, Thomas, and housekeeper Shirlee Sherman were stabbed to death in the Hunter’s Omaha home.

“The state has a heavy burden, and we’re going to put them to the test,” said Dr. Garcia’s attorneys,  Robert Motta, II and Alison Motta of Motta & Motta, LLC. Both are members of The National Trial Lawyers top 100 attorneys.

Double murders linked

The Thomas Hunter and Shirlee Sherman murders remained unsolved for the five years leading up to the deaths of Creighton pathology professor Dr. Roger Brumback and his wife Mary Brumback, who were found shot and stabbed in their home on May 14, 2013. The two double murders were linked together by a task force studying the killings. Dr. Garcia made an online search for the Brumback home address on May 12, 2013.  Phone records and a convenience store surveillance video indicate Dr. Garcia was in the area of the Brumback’s home on the same day as well.

Dr. Garcia is also being charged with attempted burglary for an attempted break-in on May 12, 2013 of another Creighton University pathologist, Dr. Chhandra Bewtra’s Omaha home. According to testimony by Omaha Detective Derek Mois at an August 2014 hearing, Dr. Garcia had made an online search for the address of Dr. Bewtra on May 10, 2013. Credit card purchases and phone records also put him in the area on May 12,2013.  DNA evidence found on Dr. Bewtra’s door was not a direct match to Dr. Garcia, but was determined to belong to a Hispanic male, according to Dr. Garcia’s attorney’s office.

Beyond a reasonable doubt

To prove a capital murder charge, Nebraska law requires the prosecutor to prove each element of capital murder, beyond a reasonable doubt:

  1. A person kills another person purposely and with deliberate premeditated malice
  2. Or while perpetrating or attempting to perpetrate another felony crime.
  3. To show purposeful and deliberate premeditated malice, it must be proven that the accused had the specific intent to kill the victims, and that the intent was formed before the act is committed.

 

The death penalty can be considered when there are aggravating circumstances to the murder. According to the charges against Dr. Garcia, the aggravating circumstances are that the murder was committed in an effort to conceal the commission of a crime or the identity of the perpetrator, the murder was especially heinous, atrocious or cruel, and that another murder was committed at the time of the murder.

“My client is innocent,” Robert Motta Jr. reported to Omaha KMTV news, who has also filed a motion to have Dr. Garcia arrest thrown out, as it was done improperly without an active arrest warrant, which was not signed until after Garcia’s arrest. Garcia and his attorneys are waiting for the judge to decide if the arrest was done properly. Dr. Garcia was arrested  during a traffic stop in which he was under the influence of alcohol and had a .45 caliber handgun in the car with him.  He was cooperative and informed arresting officers the gun was in his vehicle.

Decades of circumstantial evidence

Six weeks after Dr. Garcia’s arrest,  a truck driver found pieces of a gun that match one purchased by Dr. Garcia.  According to the defense attorneys, the truck driver on the 911 call indicated that he had stopped for a break at the location he found the gun pieces before, and had not seen the gun pieces before that day.  The gun pieces were found after Dr. Garcia was already arrested.  Gun pieces left at the Brumback home are the same type of model of gun, but are not directly tied to the gun pieces found or the gun purchased by Dr. Garcia, according to the Motta attorneys.

Dr. Garcia’s attorneys are searching through a decade’s worth of roughly 50,000 documents, reports and data in preparation for trial. According to a World-Herald report of Dr. Garcia’s September hearing, the Motta attorneys have asked the prosecutor for Dr. Brumback’s journals, possible revealing that he feared for his life from someone other than Dr. Garcia, but prosecutors report they have provided all evidence they have.

“It’s a lot to handle when if you make a mistake the wrong person dies, and that can’t be undone,” said attorney Alison Motta.  At this point, there is no physical evidence placing Dr. Garcia at the any of the Creighton professor’s homes.  The prosecutors have linked Garcia to the Creighton killings based on a connection made that he was fired from their residency program in 2001 and phone and GPS records placing him in the Omaha area in May of 2013.

“We are trying to figure out who killed them, because I don’t believe it is Anthony Garcia,” Alison Motta said.  The Mottas have experience in high-profile capital murder cases, as Robert Motta Sr. defended Chicago serial killer John Wayne Gacy.  Dr. Anthony Garcia’s trial is expected to commence in the fall of 2015.

440,000 Deaths Annually from Preventable Hospital Mistakes

Hospital treatment causing more harm than healing?  Preventable hospital errors cause more than 400,000 deaths per year.

Preventable hospital errors cause more than 400,000 deaths per year.

A patient safety study estimates that more than 400,000 American deaths are associated with preventable harm done to patients in hospital settings.

According to the Journal of Patient Safety study, Evidence-based Estimate of patient Harms Associated with Hospital Care, preventable adverse events (PAE’s) contributing to deaths from care in hospitals cause one-sixth of all deaths that occur in the United States each year.

Preventable complications causing death

Many Americans, like 55-year-old Louis Salica, who went to a heart hospital when he felt chest pains and was short of breath, go to the hospital to get effective treatment.  Unfortunately, medical errors that are preventable can lead to further complications and even death of hospital patients.

While he was under the care of the overnight nurse, medication and oxygen provided to ease Salica’s breathing was ineffective. Had it been appropriately reported, it would have resulted in admission to the “intensive-care unit, intubating him, performing an echocardiogram, inserting an intra-aortic balloon, increasing his medications, and consulting with a cardiothoracic surgeon,” according to the testimony of an expert witness cardiologist.

However due to the failure by Salica’s overnight nurse to make a report, the “hours of progression of the underlying heart failure” decreased his chance of survival from “over 90% percent to approximately 20%.”  Salica ultimately died in an emergency surgery to repair a heart muscle rupture that occurred over night, caused by the failure to report, according to the court opinion in Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 231 P.3d 946 (Ct. App. 2010)

Core studies used

The study’s author, John T. James, PhD, is the founder of Patient Safety America, which provides newsletters on patient safety and advances in medical technology and care that may affect patient safety.  The site is dedicated to his 19-year-old son who died by the medical errors of his treating cardiologist in 2002.

The Evidence-based study is based on a compilation of four other studies utilizing the Global Trigger Tool (GTT) in order to assess patient adverse events leading to healthcare harm.  The GTT is a standardized method of identifying and measuring adverse event triggers or “clues” documented in former patient records, leading to possible adverse events, according to the Institute for Healthcare Improvement (IHI), who developed the GTT.

Types of Preventable Adverse Events

Based on the GTT based study results, the lower limit of adverse events leading to death from hospital care is 210,000. The study multiplies this number by a conservative factor of two, increasing the death toll to 440,000 patients each year, in order to account for other causes of PAE’s during hospitalization such as the following:

  • Errors of commission – When the wrong medical action is taken or the right medical action is taken yet performed improperly.  For example, during the surgery to remove a gallbladder, the intestine is nicked, leading to a future infection causing death.
  • Error of omission – Obvious action was necessary to heal the patient, yet it was not performed at all.  Errors of omission are difficult to detect, and at times can be the result of a patient not following given guidelines after discharge. Another example may be a necessary medication that was not prescribed.
  • Error of communication – Miscommunication from physician to physician, or between patient and physician.  For example, a cardiologist not informing a patient who experienced syncope, or fainting, while running, not to run or explaining the risks associated with running.
  • Error of context – A physician may fail to take into account patient constraints that may impact the success of treatment after discharge.
  • Diagnostic errors – Diagnostic errors can result in delayed, wrong or no treatment at all, which often leads to the death of the patient.

 

These five types of errors are not detected by the GTT and some studies suggest a factor of 3 to account for adverse events not reflected in medical records, according to the study. The serious errors occurred both while in the care of the hospital and after discharge.

Serious predischarge PAEs, according to the study include:

  • Adverse drug events
  • Nerve or vessel injury or wrong operation
  • Deep venous thrombosis –  a blood clot in a deep vein
  • Hospital acquired infection
  • Postoperative respiratory distress

 

Postdischarge PAEs include:

  • Wound infection
  • Deep venous thrombosis – a blood clot in a deep vein
  • Operative wound dehiscence – a surgical incision breaking open along the suture
  • Operative organ injury

Physicians don’t report mistakes

Interestingly, the study referenced another source that found that patients reported 3 times as many preventable adverse events than were indicated in their medical records.  The study also found that more errors were identified by direct observation rather than by the inspection of medical records.  The also study noted a national survey that found that physicians often refuse to report serious adverse events, with cardiologist being the highest of the non-reporting groups.

The Office of Inspector General reported that 86 percent of patient harm events were not reported by hospital staff as they either did not perceive the event as reportable, or did not report an event that was commonly reported, in its 2012 report Hospital Incident Reporting Systems Do Not Capture Most Patient Harm.

Public awareness and safe care

“It is time that a clueless public wake up to the widespread harm of medical errors and force changes in the system that can give reasonable assurance of safe care,” said James in a guest blog on Safe Patient Project.org.  It seems his message is being heard.  The U.S. Department of Health Services released a report showing that an estimated 50,000 fewer patients died and 1.3 million fewer patients were harmed in hospitals from 2010 to 2013 as a result of safer health care efforts.

Seven Ways to Become an Awesome Legal Networker

hands network from flickrThe legal job market is fiercely competitive. Learning to network can mean the difference between success and failure. Developing your networking skills can help you advance your career and grow a steady book of business that will give you constant job security. Here are seven steps to take to become a networking star.

1. Meet attorneys in different specialties. Get to know attorneys in every legal specialty. Aside from being potential employers themselves, attorneys will know other attorneys to whom they can introduce you (if they like you). Attorneys are a great source of referral business for other attorneys. Look for lawyers who you think your clients will like. When your clients need a specialized attorney in a different area of practice than yours, you want to make sure they will be comfortable with your referral.

2. Meet professionals in diverse fields. Potential clients come from all walks of life. The people you meet may become potential clients, a lead to a potential client, or someone with whom you will work in the future, e.g., as an expert witness or consultant. Knowing different types of professionals will help you introduce your business connections to other people who will be helpful to their respective businesses. A good stress-free way to meet people is to offer your time to a community service organization, public law center, or charity.

3. Do something nice for people you like. Are you afraid to network because you don’t want to “sell” yourself and you can’t stand the idea of being rejected? Forget about “selling” yourself. You’ll get business from others when you’re focused on what you can do for them, not what they can do for you. Consider making an introduction, sending information of value, or helping market your new contact.

4. Do what you say you’re going to do. If you promise to send an article to your contact or to make an introduction, do it at the same time you send a thank-you note. Nothing is more impressive to a new contact than consistent follow-up. It establishes immediate credibility with your new contact.

Click to read the rest of the tips to becoming a great legal networker.