Hinton v. Costco (Las Vegas, Nevada)

Can a broken wrist break up a marriage? It can according to Brandon and Rachelle Hinton. 

The couple’s divorce will be finalized later this summer, but they’re sticking with each other as co-plaintiffs in a lawsuit against Costco Wholesale Corporation that went to trial this week in Clark County Circuit Court.  

Brandon Hinton suffered a broken wrist in a Costco parking lot in 2007, after a Costco employee lost control of a number of shopping carts, and they rolled towards Hinton’s car. From the driver’s seat, Hinton reached out to block the carts with his hand, which caused a wrist injury resulting in multiple surgeries, enduring physical pain, and, according to the Hintons’ attorney, led to the end of their marriage of 13 years. 

“There was too big a change,” attorney Jim Crockett (Crockett & Myers) told the jury during opening statements. Between depression from a debilitating wrist injury and the required, long-time use of narcotic pain medication, Rachelle claims her husband went from being a happy-go-lucky, active “9.8 out of 10″ stay-at-home dad to a “grouch” who hardly helps out around the house or with their six-year old child. She seeks damages for loss of consortium, while Brandon seeks damages for medical expenses and loss of future wages. 

According to Hinton’s lawsuit, on the day of the accident a Costco employee was moving shopping carts with a “QuicKart” personal moving device that he had not received sufficient training to operate. “When a company uses specialized commercial machinery, the company must make sure that only employees who have been authorized and properly trained to use it, use it. If they don’t, and someone is harmed, the company is responsible for the harm caused,” Crockett told the jury. 

Representing Costco, attorney Sharon Nelson (The Nelson Law Firm) told the jury that although the employee admitted making an error in operating the QuicKart, he had been properly trained, and that Costco responded appropriately following the incident. The Hintons refused an ambulance, and, Nelson said, the evidence will show at the time Mr. Hinton was driving under the influence of prescription medication. Nelson told the jury Costco is not responsible for the subsequent standard of care Mr. Hinton received in treating his injury, nor is it responsible for the strength of the Hinton’s marriage. “This case is about choices,” said Nelson. 

Nelson also suggested to the jury that Hinton had a history of filing lawsuits like this. “The evidence will show this is not the first time Mr. Hinton has sued or claimed disability for an injury,” she said. According to Nelson, Mr. Hinton had effectively stopped looking for any full time employment months before the incident in the Costco parking lot. 

CVN will be webcasting live the full Hinton v. Costco trial, which will last up to two weeks.

“Forget what you fear about shadow juries. Go virtual!” said Cynthia R. Cohen at the 11th Annual Women in Products Liability workshop in New York. “Virtual Shadow Juries are not your mother’s shadow jury.“

Dr. Cohen presented a paper describing the history of shadow juries, including some famous success stories, as well as the limits of shadow juries. Cohen’s paper then described the impact of virtual shadow juries, which she characterized as “the wave of the future in high stakes and bellwether trials,” because they are safer, more flexible, and more productive than traditional shadow juries. “The technology benefits those who use it,” said Cohen.

A shadow jury is like a focus group continuing throughout the trial. The focus of the research is on the effectiveness of communication. Many trial teams use shadow juries both before and during trial to get useful feedback.

“Trial lawyers entrenched in case facts, law, and strategy, need objective eyes and ears to tell how the trial is perceived in the jury box,” said Cohen. However, relying on office staff or family members introduces inherent bias. According to Cohen, shadow juries offer these benefits:

1. Understanding jury comprehension of opening statements and witness testimony. 

2. Shifting strategy based on juror feedback. 

3. Better approach to settlement and damage issues. 

4. Evaluating and preparing witnesses.

5. Incorporating feedback into closing arguments.

Dr. Cohen then described additional benefits available only when the shadow jury goes virtual.

Download Dr. Cohen’s entire paper (PDF). 

Cicatello v. Walton (Las Vegas, Nevada)

Dr. Charles Walton inadvertently perforated 15-year old Amanda Cicatello’s aorta while performing a routine laparoscopic appendectomy. Cicatello survived the surgery, and asserted a medical malpractice claim to recover damages for the harm resulting from the procedure to repair the aorta.

Peter Wetherall (White & Wetherall) asserted that Dr. Walton deviated from the standard of care by (1) using a non-standard procedure for conducting the appendectomy, (2) failing to use a camera view at the time of the insertion that caused the aortic injury, and (3) failing to maintain reasonable control over the instrument that he was using.

Drew Cass (Lewis Brisbois) told the jury that tearing of a blood vessel was a recognized risk of a laparoscopic appendectomy, and that when Dr. Walton discovered the tear that occurred during placement of a bladed trocar, he promptly and competently repaired it.

By a vote of 6-2, the jury found that the plaintiff failed to prove by a preponderance of evidence that Dr. Walton breached the standard of care.

CVN webcast the Cicatello medical malpractice trial live.

Perez v. Yamaha (West Palm Beach, Florida)

A West Palm Beach jury awarded damages of $35M in a products liability trial involving a Yamaha WaveRunner jet ski operated by two teenage girls. The watercraft’s defective steering system caused the craft to strike a boat, killing one of the girls, and causing serious injuries to the other, including permanent brain damage. The water scooter lacked off-throttle steering, which means the personal water craft (PWC) lost steering ability when the throttle was released.

In his closing argument, Robert Baker (Baker Zimmerman) showed the jury video of a test run of the 2001 Yamaha XL800 WaveRunner with the rider releasing the throttle at 30 mph then attempting to turn. “See it with your own eyes, see what happens over a 110-foot course. Look how it hits the head pin. This isn’t even a close call…If there’s a boat at the end of that bouy course, he’s dead…Every one of his 30 mph runs in the OEM or as-manufactured condition is a hit. It violates the course.”

However, Baker continued, “Every one of them with this crude rudder device — a prototype built in a garage for $20 in parts from Home Depot, with a door hinge attaching it to the personal watercraft — misses. This company, with all their engineers, all their resources, all their money couldn’t fix it? Are you kidding me?“

A simple fix would have attached rudders to the steering device, so that turning the steering wheel of a watercraft in motion would turn the watercraft, using the craft’s momentum through the water, even if the propulsion mechanism was not active and pointing in one direction or the other. Said Baker, “It’s Yamaha’s job to make this product safe. They control every aspect of the design. It is their responsibility to design out this hazard. They had the means, they have the way, it was feasible, it was inexpensive, the technology’s available for decades….We’re talking about a…retractible rudder. This is not high-tech. This is extremely reckless, highly irresponsible behavior.“

Baker reminded the jury that the Yamaha’s 1987 manual described the throttle-steering risk as loss of control by beginners that could result in injury or death. “So they know the problem, they know the at-risk group, they know the consequences. They know all that before they introduced the thing in the marketplace. And the shameful aspect about that is they did nothing…totally and recklessly indifferent to correcting this defect, despite a mountain of notice…Is off-throttle steering counter-intuitive? Every other motorized or non-motorized vehicle you have ever used in your life will steer when you reduce energy. One exception: Yamaha’s PWC.“

Referring to Yamaha’s “system of information,” which was to alert riders how to handle the off-throttle steering problem, Baker said, “But for the defect, [plaintiff Samantha Archer] misses this impact by a mile…She makes that turn within 70 feet. She could have made two turns in the width she had. To blame her defies all logic. The ‘system of information’ is nonsense, it’s garbage. It’s bogus to say instructions and warnings make it not-defective. Fix it!…The life-saving information on the side of the craft [is] buried three-quarters of the way down. It’s a joke. They don’t put it on the handle bars, they dilute it with too much information, the location is garbage.”

For Yamaha, Richard Mueller (Thompson Coburn) told the jury, “Of the evidence they brought to you, there was no accident reconstruction. In fact, the only thing that they showed you was an effort to provide an animation of one person’s recollections. An animation of one person’s post-lawsuit recovered recollections, contrary to everyone else’s recollection.”

The proposed rudders were unsafe and dangerous, said Mueller, because they would actually have made the craft less maneuverable, and would create a serious cutting hazard. Although retractable rudders could avoid the cutting risk, they have to have time to come down and to have an effect, “and not one expert has come in here for the plaintiffs to tell you that whatever hypothetical system that they didn’t build…would make any difference in this case.“

Morever, said Mueller, the plaintiffs did not even establish that the watercraft driver was off-throttle at the time of the accident, and witness testimony suggested that the watercraft driver was not off-throttle and was even oblivious to the presence of the boat.

Yamaha knew, said Mr. Mueller, that most watercraft accidents resulted from operator error, such as carelessness, recklessness, excessive speed, violation of the rules of the road, and wake-jumping — behaviors that would continue to cause accidents even if rudders were present.  But, the presence of rudders would make these accidents even more dangerous, because someone would get cut.

In his closing rebuttal, David Kleinberg (Neufeld Kleinberg), told the jury, the case was not about rudders, but was about a jet ski with no off-throttle steering, and it was Yamaha’s job, not the plaintiff’s job, to work out a safer design, which might or might not rely on rudders. In any case, said Kleinberg, “rudders allow the person to steer and avoid. Saying rudders is a cutting hazard is like saying tires on a car is a crushing hazard. If you can steer away, you won’t crush anyone. If you don’t have rudders, well, you may not cut the person, but you’re gonna knock his head off and commit blunt trauma — but there won’t be any stitches needed!“

The jury found that the 2001 Yamaha WaveRunner XL800 was defective both in design and in failure to warn. The jury allocated 88% of the fault to the manufacturer. The jury awarded approximately $39.8M damages to the two families, of which Yamaha would be liable for 88%, or approximately $35M.

CVN webcast live this jet ski off-throttle steering trial.

CBC Framing v. National Union Fire Insurance (Los Angeles, California)

One of California’s largest residential framing companies, CBC Framing, and AIG’s National Union Fire Insurance, which was CBC’s workers compensation carrier, sued each other after their eight-year business relationship ended.

According to Mark Palin (Atkinson Andelson) on behalf of CBC, National Union attempted to extort $14M by raising CBC’s annual rate from $6.1M to $14M on the date of renewal, without notice and without providing enough time to find an alternative insurer.

Palin explained that CBC nonetheless quickly found another workers compensation carrier for just $7.5M. Palin said that National Union responded to CBC’s policy cancellation with “unbridled vengeance” by immediately launching a fraud investigation against CBC, and by inducing the new insurer to cancel its coverage of CBC. Although CBC had misclassified many of its workers as receiving union-level wages, which qualified CBC for a lower insurance rate, Palin said that National Union knew about the misclassifications through its annual audits, and never objected, and even directed some of the misclassifications. Instead, according to CBC, the real fraud was National Union’s mishandling claims, and granting claims that should have been denied, which raised CBC’s costs and National Union’s profits. CBC sought damages of $9M+ for bad claims handling.

“I think the evidence is overwhelming,” said Mr. Palin, “that they tried to set up CBC with a $14M quote on the last day, and then when CBC went somewhere else, they tried to torch that relationship…And it’s simply staggering that you have an insured that you’re trying to get back while you’re investigating them for fraud. The timing on this is absolutely incredible.”

For National Union, Ed Oster (Barger & Wolen) told the jury that CBC’s misclassification of the employees was a deliberate, active fraud designed to improperly decrease its expenses and expose National Union to risk that CBC was not paying for. In addition, Oster told the jury that the insurance agreement required that CBC keep accurate payroll records, and that CBC knew or should have known that the failure to do so would have consequences. Oster characterized CBC as having sales of $167M, and therefore was not small or unsophisticated. National Union requested damages in excess of $30M.

On behalf of CBC’s owner and president John Vojtech, Jon Mower (Mower Carreon & Desai) told the jury that his client did not and could not concoct and execute a scheme to defraud the world’s largest insurance company for eight years. Why, asked Mower, would AIG’s underwriters have renewed CBC’s policy for eight years if they were being defrauded of millions and millions of dollars? National Union almost certainly knew about the misrepresentations in the early years, and there was no evidence that they relied on the class codes to price the contract, said Mower. Instead, the insurance contract was intended to be sold as a market-driven policy based on what they expected their losses to be, and nothing else.

On CBC’s breach of contract claim against National Union, the jury found that CBC’s non-performance under the contract was excused, and National Union breached the contract. The jury awarded CBC damages of $604,002.

On CBC’s covenant of good faith and fair dealing claim against National Union, the jury found that National Union breached the implied covenant and awarded CBC additional contract damages of $798,173. However, the jury did not find oppression, fraud, or malice, which would have justified a punitive damages award against National Union.

On National Union’s breach of contract claim against CBC, the jury found that CBC breached the contract, and National Union was harmed by CBC’s breach, and awarded damages of $5,183,931.

For each of the various remaining causes of action by National Union against CBC and John Vojtech (Intentional Misrepresentation, Negligent Misrepresentation, and Concealment), the jury found either that no false statement was made or important fact concealed, or the error was not reasonably relied upon by National Union.

CVN webcast openings and closings, plus the reading of the verdict, for CBC v. National Union.

Kalitan v. Alexander (Fort Lauderdale, Florida)
Susan Kalitan suffered a perforated esophagus during intubation for anesthesia prior to surgery for carpal tunnel syndrome. The perforation was not detected, and subsequently caused severe harm.

In his closing argument for Dr. Alexander, Robert Cousins (Quintairos Preito) pointed out that the mere occurrence of bad things that should not happen does not mean that there was negligence, and in this case the risk of negative outcomes was disclosed to the patient.

Cousins read to the jury from a patient disclosure form: “‘There is a minimal possibility of bleeding or perforation’…and so, ladies and gentlemen, this is a known and recognized complication…Should it happen? No. But does that mean there’s negligence? Absolutely not.” In this case, said Cousins, there was nothing in the post-anesthesia procedure, under the circumstances, at the time, that should have alerted Dr. Alexander to a potential problem. Therefore, his failing to recognize the perforated esophagus did not breach the standard of care.

Representing Barry University, which trained student nurse Eleidy Miedes, who allegedly caused the injury to Ms. Kalitan’s esophagus, Jeffrey Creasman (Quintairos Prieto) told the jury “There’s not a shred of evidence in this case ladies and gentlemen that Ellie Miedes did any endotrachael intubation [which was the procedure that allegedly caused the injury]. None. Not a single witness has said that….that entirely exonerates my client.” Even if Ms. Miedes did any part of the procedure that injured Ms. Kalitan, Mr. Creasman continued, Miedes would be held to the standard of care of a student nurse directly supervised by a physician, and she would not have been expected to anticipate a difficult airway.

Representing Broward General Medical Center, Tom Heath (Heath Carcioppolo) told the jury that Broward’s nurses were top-notch critical care nurses who behaved properly throughout Ms. Kalitan’s stay. The nurses discharged Ms. Kalitan because she was medically stable and not in pain.

In his closing rebuttal, Crane Johnstone (Schlesinger) told the jury, “What you’ve seen is the attorneys for a month now and in closing remarks defend the indefensible. And, that’s what defense attorneys do. They speak for the defendants, and they will even, in a case like this, do what they have done, which is defend the indefensible.“

Reminding the jury of a nurse’s testimony, Mr. Johnstone said, “It was inexcusable and it was below the standard of care for three nurses to have heard from Susan about the pain that she had after a minor wrist procedure and not serve as an advocate and speak for her to make sure that the doctor came, or the nurses higher up in the hierarchy — the charge nurse, the supervising nurse — to get someone to see this woman before she went home…The pain she was experiencing was so severe she could barely stand up, and then got more pain medication, and it put her to sleep.“

“They never get a physician in to see her, despite the rules and the regulations of the hospital, that say that the etiology — the cause of this pain — should be determined if at all possible. And nobody did that…They never checked on her that afternoon to make sure that when the pain medication wore off she was ok, and that she didn’t require further help from her doctor. When they finally called her the next day, they called the wrong number. That’s the evidence in the case. That’s the care she got.“

Moreover, said Mr. Johnstone, nurse Miedes was on academic probation at Barry University and had subpar clinical marks at the time she cared for Ms. Kalitan, including her marks in Physiology and Difficult Airway Assessment.

The jury found negligence on the part of all defendants, assigning 50% to Dr. Alexander, 35% to Broward Medical Center, 5% to the student nurse, and 10% to the student nurse’s supervisor, who was acting on behalf of Barry University.

The jury found that Ms. Kalitan suffered a catastrophic severe closed head injury and awarded damages as follows: Past medical expensese: $142,704; future medical expenses: $472,287; past lost earnings: $55,220; future lost earnings: $47,800; past general damages including pain & suffering: $2M. Future general damages: $2M. The total damage award was $4,718,011.

CVN webcast the Kalitan medical malpractice trial live.

Soffer v. R.J. Reynolds (Gainesville, Florida)

Rod Smith’s fire-breathing, jury-searing performance yesterday convinced a Gainesville jury to award $5M damages to the survivors of Maurice “Mickey” Soffer late last night. The jury found RJR liable on negligence and product liability claims, but ruled in favor of the defendant on concealment and conspiracy claims. Because the the concealment and conspiracy claims failed, the jury did not reach the issue of punitive damages.

Smith told the jury in his opening statement, “In the years before the meeting in New York [when the Tobacco companies secretly met in 1953 at the Plaza Hotel to plan their public relations campaign], there was a teenager in high school in Philadelphia. His name was Mickey Soffer, and he joined the rest of his generation there in high school beginning to smoke R.J. Reynolds cigarettes. Indeed, R.J. Reynolds’ planned campaign of deception and denial was waged throughout Mickey Soffer’s entire adult life — right up to the final months in which he died after a horrible struggle, and his eventual death, from lung cancer.“

“In 1994” Smith continued, “the tobacco executives of this country met again all together. This time they weren’t behind closed doors meeting in secret. This time they were in front of the United States Congress testifying to the American people. This time they were swearing under oath to God and the country that what they were saying they believed. This time in 1994 before Congressman Waxman the question was whether or not they believed their product to be addictive…Ladies and gentlemen, in this courtroom we will prove to you that they not only knew that nicotine was addictive, they had been counting on it as a way to market their product and keep people smoking for more than 40 years. There was no surprise in the question about the addictiveness of nicotine, and we will prove in this courtroom that they lied about it.“

For R.J. Reynolds, Randy Baringer (Womble Carlyle) told the jury, “This case is ultimately about one thing, and one thing only, and that is Maurice Soffer and the choices he made about smoking. It’s about why he chose to start, it’s about why he chose to continue to smoke for as long as he did, and it’s about why he chose to quit when he finally did.“

Baringer warned the jury that “Mr. Smith…ignored the crucial question of, did any of what he showed you or any of what he talked about actually affect Maurice Soffer in terms of the decisions he made about starting to smoke or continuing to smoke or to quit smoking. But all of the questions that you’re going to be asked at the end of this case when you get that verdict form are going to focus precisely on Mr. Soffer, and only Mr. Soffer. And as you will hear it’s the plaintiff’s burden of proof in this case to establish a link between the conduct or the documents or whatever they allege Reynolds did wrong and his decision to continue to smoke, which ultimately led to his developing lung cancer.“

In his closing argument, Smith told the jury, “They knew what was in tobacco smoke, and they knew they couldn’t get rid of it, but they told the American people otherwise…The strategy was this: Deny — no matter what the science, no matter what the epidemiology, no matter what the surgeon general says, no matter what the AMA says, no matter what the scientists and the universities find — just keep denying — so you can keep selling these cigarettes as long as we can sell them, as many as we can sell, we’ll come up with new ideas to market this product — just keep denying.“

“Folks, Reynolds says that everyone knew about addiction and smoking hazards. Apparently everyone on earth, that is, except, well, R.J. Reynolds and their co-conspirators. And I don’t expect today that they will at long last come forward and say, ‘By the way we were blatant liars in the 1950′s, 1960′s, 1970′s, 1980′s, 1990′s — and by the way we did it for the purpose of having people rely on our blatant lies to their detriment.‘”

“We know at least seven people who must not have known about the addictiveness of nicotine not all that many years ago,” Smith said, and then re-played the 1994 tobacco executive testimony before Congress. “Can you believe it?” Smith continued, “They brought a historian who said everyone in the world knew about addictiveness. Well I picked seven who didn’t.“

“Ladies and gentlemen, they are going to try to make this case about one thing: they’re going to say it’s about Mickey’s poor choices. Well that’s untrue. First, both of our experts recognize that an addicted smoker makes a choice, has a responsibility to make choices. Nobody says they don’t. But they also say it is not a free choice.“

In his own high-energy closing, Baringer asked the jury, “What evidence was there that advertising had anything to do with why Mr. Soffer started to smoke or continued to smoke?…He took cigarettes from his mother…parental influence is a strong indicator of whether someone will start or continue to smoke, and Mr. Soffer’s parents smoked. Peers are a strong influence on whether someone starts to smoke,” and not one witness testified that they were aware of any way in which advertising had influenced Mr. Soffer.

Moreover, the development of filtration could not have influenced Mr. Soffer’s decisions, said Baringer, because Mr. Soffer smoked unfiltered cigarettes, and even tore the filters off of filtered cigarettes. “The whole story that they tell you about filtration is all about other people, because ladies and gentlemen it has nothing whatsoever to do with Maurice Soffer…You want to talk about a smoke screen? This is an irrelevant side show that they spent all kinds of time with Dr. Burns talking to you about when they know full well it had nothing to do with Maurice Soffer.“

In his closing rebuttal, Smith pounded home his message, “This case in the end is about one thing — one thing only: — was he addicted. Because after that, it’s an easy answer for you. And every company should have the obligations in every board room not contrive and connive in a way that they can lie for fifty years to sell their product to the people they know that are most vulnerable: the addicted and the adolescent. Those ought to be the people they try to help.“

The jury found that Mr. Soffer’s addiction to cigarettes was the legal cause of his death, and that RJR’s negligence and defective products were also a legal cause. The jury allocated 40% of the fault to R.J. Reynolds, and 60% to Mickey Soffer, and awarded $1M in compensatory damages to Mr. Soffer’s widow, Lucille Soffer, and $2M each to Mr. Soffer’s two children, Rochelle Soffer and Joseph Soffer, for a total compensatory damage award of $5M. The total award will be reduced to $2M based on the fault allocation.

Rod Smith’s previous Engle trials are Hall v. RJR and Alexander v. RJR.  Randy Baringer previously tried Grossman v. RJR.

CVN webcast the Soffer tobacco trial live.

CVN is the leading news source for Engle litigation updates.  As this unprecedented tobacco litigation, now in its third year, evolves and expands, it is increasingly important to keep track of the emerging trends and evolving techniques.

CVN’s Engle Litigation Trading Card series offers a light-hearted format for some very serious information. With billions of dollars at stake, the litigants, the business community, and the general public need to understand the courtroom results.

Last year CVN introduced the Engle Verdict Tracker. Now, CVN’s Engle Litigation Trading Cards gather, analyze, and highlight even more key statistics to help evaluate the Tobacco Litigation outcomes.

We hope our readers enjoy these trading cards, but we also expect that the cards will be used as serious information and planning tools by participants and observers alike.

Baseball cards were originally distributed with cigarettes (not bubble gum), so we think it fitting that the original cigarette card be revived a century later, in the context of tobacco litigation, and with a baseball theme.

CVN will issue a new card each week in 2011, featuring an attorney, law firm, judge, or Engle case. We hope you will visit the collection as it grows, or sign up to be notified by email each time a new card is issued.

This week we are pleased to introduce card #7 featuring Engle plaintiff attorney Alex Alvarez. Below is a preview of this week’s card. We hope you enjoy the entire collection.