Daniel Perez v. Yamaha Motor Corporation USA (West Palm Beach, FL)

On June 9, 2011, a Florida state court determined that Yamaha Motor Corporation USA was responsible for a 2005 WaveRunner accident near Currie Park that killed the plaintiff’s 14 year-old daughter Jaysell Perez and gravely injured then 15 year-old teenager, Samantha Archer. The jury awarded the plaintiffs $35 million. $19 million went to the parents of Jaysell Perez and $16 million went to 21-year old Samantha Archer, who was 15 at the time of the accident.

On May 5, 2011, Ivonne and Daniel Perez, parents of Jaysell Perez, walked to the Palm Beach County courtroom to begin Day 1 of their 6-week trial against Yamaha with millions of dollars at stake and the memory of their 14 year-old daughter, Jaysell, on their minds.

Attorney Robert Baker (Baker & Zimmerman) asked the jury to remember throughout the case that two subsidiaries of Yamaha of Japan, Yamaha Motor Corporation USA and Yamaha Motor Manufacturing Corporation, “buried their heads in the sand like ostriches instead of listening to their engineers” warn them about design defects inherent in the product that later killed 14 year-old Jaysell Perez and injured then 15 year-old Samantha Archer. Robert Baker accused Yamaha Motor Corporation USA of failing to correct steering problems with the water scooter and failing to warn users of its foreseeable and known hazards.

Baker emphasized the years it took Yamaha to figure out how to make sure that its operators could steer its WaveRunner when the throttle was released (off-throttle steering). Jaysell Perez and Samantha Archer plowed into a boat after Samatha Perez took her hand off of the throttle to turn the water scooter.

Representing the defendants, Richard Mueller (Thompson Coburn), said that this case was about “two inexperienced children who were let loose illegally on the waterways during a holiday weekend.” He portrayed Samantha Archer as someone who was negligent in her use of the WaveRunner. According to Mr. Mueller, Samantha Archer failed to release the vehicle’s throttle and also failed to look in front of her while steering the water scooter to avoid the collision. He stated that the steering apparatus on the WaveRunner was not defective in its design, and therefore was not responsible for the death of Jaysell Perez or the injuries suffered by Samantha Archer.

David Kleinberg (Neufeld, Kleinberg & Pinkiert) and Eric Ansel (Ansel, Bunsic & Miller) appeared on behalf of the plaintiffs and Carl Pesce (Thompson Coburn) and Scott Sarason (Thompson Coburn) appeared on behalf of the defendant.

Over six weeks, extensive expert testimony from both sides was presented, along with the testimony from the corporate heads of Yamaha of Japan and its subsidiaries. Gavel-to-gavel coverage is available from Courtroom View Network. 

CVN webcast Daniel Perez v. Yahama Motor Corporation USA live. 

Gunshanan v. Pulmonary Practice (Orlando, Florida)
 
Instead of helping decide a court case, a Florida juror could face jail time himself after his Facebook posts caused a mistrial this month in a complex medical malpractice lawsuit.
 
Alexander Duff made a post to his profile on the social networking site saying he made a decision about a verdict in a wrongful death case, even though it was still underway. Jurors receive strict instructions not to discuss a trial outside the courtroom or to make any decisions before receiving instructions from a judge.
 
“Think I have one more day of jury duty, thank God,” wrote Duff in a status update on his Facebook wall, amongst other posts apparently trying to get friends to see a movie with him, according to images of his profile included in a court order. “Tomorrow we gotta make a decision who has the greater weight of proof between the plaintiff and defense, and I know my answer.”
 
He went on to describe the trial proceedings as “unbearably boring…lol.”
 
The case settled while Judge Lisa Munyon considered a motion for a mistrial, made by defense attorneys when they became aware of Duff’s online comments during the trial. She also set a date later this month for Duff’s arraignment on criminal contempt charges, which judges can use to penalize trial participants for violating court orders and can sometimes carry jail sentences.
 
Judges have broad discretion in sentencing for contempt violations, and the high-stakes in the underlying trial Duff was considering may not weigh in his favor. In the case, a widow blamed doctors for failing to detect her husband’s fatal lung cancer before it became inoperable. This was the second time the case went before a jury after an earlier unrelated mistrial, and rather than face the costs of a third trial the parties reached a settlement.
 
After the defense attorneys asked for a mistrial, Judge Munyon took the motion under advisement and allowed the jury to reach a verdict. The jury awarded the plaintiff, Peggi Gunshanan, $810,000 in damages, which were then voided when Judge Munyon granted the mistrial. Gunshanan’s attorneys, Scott Bates and James Dill of the law firm Morgan & Morgan, did not respond to a request for comment.
 
“The Facebook post caused considerable uncertainty as to whether a verdict would ultimately stand,” said Clay Coward, an attorney for with the law firm Wicker Smith, whose client was found not liable by the jury. He expressed sympathy for Duff’s situation, stating the judicial system needs to make clear the instructions jurors receive in the courtroom extend to the world of social media. “I am reluctant to criticize any juror who has taken two weeks away from his or her job and family to do his civic duty of serving on a jury,” said Coward.
 
But claiming the court’s instructions were not clear regarding social media may not be a viable defense for Duff. In copies of pre-trial instructions obtained from the court, Judge Munyon told jurors, “You must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all.”
 
According to Dr. Cynthia Cohen, Ph.D., a trial consultant with Verdict Success, the feelings expressed by Duff are nothing new for jurors, but the use of social media increases their chance of getting caught. “Whatever happened around your dining room table twenty years ago, they (the court) didn’t know about,” said Cohen. “You have drawings of juries from hundreds of years ago, and there are people sleeping.”
 
However modern jurors face much closer scrutiny, since according to Cohen monitoring the social media activity of jurors is standard for almost any trial team. It would certainly take place on a trial of this scale, she said, which is how Duff’s comments were first noticed. Usually when jurors communicate online about a trial, they often simply are not aware of the real impact social media activity can have in the courtroom, said Cohen. “Most of the time they’re not even realizing it.”
 
Duff’s arraignment is set for August 31, which at least gives him enough time to update his privacy settings.
 
The original trial, which was webcast in full by Courtroom View Network, is Peggi Gunshanan v. Pulmonary Practice of Florida, et al., 2007-CA-010988-O, 9th Circuit Court of Florida.
 
Read the Court’s show-cause order for indirect criminal contempt. The arraignment is scheduled for August 31, and the show-cause hearing for October 7.

MacDonald v. Kaufman M.D. (West Palm Beach, Florida)

UPDATE – August 18: Judge David Crow declared a mistrial after jurors saw a consent form containing what Melissa MacDonald claims is a forgery of her signature. During opening statements, her attorney was adamant that she never gave consent for a vacuum-assisted delivery. The two sides had not agreed that the jury could see this document, so the current trial was scuttled.  

A mistrial is frustrating and expensive, but for a suit that’s been around since before the iPod existed, what’s a few more months?

A multi-million dollar medical malpractice lawsuit filed while Bill Clinton still lived in the White House finally went to trial last week in Palm Beach County Circuit Court. 

Melissa and Robert MacDonald originally sued Dr. Sam Kaufman and Woman’s Healthcare Associates over a decade ago, claiming the improper use of a vacuum suction device during the delivery of their son, Jordan, in 1998 caused a serious brain injury. Despite being physically healthy today, Jordan has the lowest possible I.Q. score anyone can have and will require constant care for the rest of his life, according to the MacDonalds’ attorney, Gary Cohen of Grossman Roth. 

Jurors rarely get to consider cases this old. It is extremely unusual for a civil suit to spend this long working through even the most clogged state court systems. Both the age of the case and the anticipated length of the trial indicate the high stakes for both sides. 

During opening statements, Cohen told the jury he would ask for an extremely large damages award, but the emotional impact of a family caring for a severely disabled child should not be the deciding factor. Instead he asked the jury to focus strictly on the evidence and whether or not the defendants’ actions during Jordan’s delivery fell below the appropriate standard of care. “We don’t want your sympathy,” Cohen repeatedly told the jurors.

According to Cohen, Dr. Kaufman used a vacuum extractor to assist in an emergency delivery after Melissa MacDonald went into premature labor, despite the fact MacDonald’s ongoing contractions were not weak enough to call for such aggressive treatment. “You never do that unless its indicated,” said Cohen after graphically describing the effects of a vacuum extractor on a newborn’s soft skull. “Why the rush to deliver this child?” he asked the jurors incredulously. 

Representing Dr. Kaufman, attorney Reed Kellner of Adams Coogler insisted that the physician acted properly during the delivery of Jordan MacDonald given the specific circumstances. He told the jury Jordan suffers from cerebral palsy which is a result of his premature birth at 35-weeks and not a result of Dr. Kaufman’s use of a vacuum extractor. 

Kellner claimed there was nothing aggressive or unusual about the use of a vacuum device. “Vacuum deliveries in the circumstances of this case, by reasonable obstetricians around the country, is considered safe and proper,” he said. “It’s part of the standard of care.” 

The 24-hour, lifetime care Jordan will need likely costs far more than any of the defendants’ malpractice insurers would pay, which is the likely reason a case of this complexity is actually being decided by a jury. The vast majority of medical malpractice lawsuits settle out of court before ever reaching trial.

As another sign of the high stakes in the case, Kellner was accompanied in the courtroom by additional defense attorneys from other firms, who will assist in witness testimony over the coming weeks. Extensive expert testimony from both sides is expected, along with testimony from Dr. Kaufman and other on-site medical staff. The trial is expected to last up to three weeks before Judge David Crow and is being webcast in full via Courtroom View Network (CVN).

The case is Melissa MacDonald v. Women’s Healthcare Associates, et al. No. 2000CA008025, 15th Judicial Circuit, Florida

Guaman v. Allstate (Fort Lauderdale, Florida)

“It’s a David versus Goliath case” said plaintiff attorney Lee Levenson (Romano Law Group) in describing his client, 59-year-old Jorge Guaman who allegedly sustained back and neck injuries when a driver insured by Allstate Property and Casualty rear-ended his Toyota Tacoma in 2009.  Guaman claimed that $47,140 in past medical bills were necessary to diagnose and treat his injuries which included a burst disc in his lumbar spine.

But according to Allstate, Guaman had degenerative disc damage that predated the accident, sustained no injuries, cuts or bruises, and drove his truck home without going to the emergency room. “Sometimes actions tell us more than words” said Allstate attorney Holly Carroll. In fact, only nine days later did Guaman go to a clinic to seek physical therapy. Guaman was given epidural treatments over the course of several days, which according to Levenson prove Guaman was not simply looking for a lawsuit but was legitimately in pain.

However, Mr. Guaman, a native of Columbia who came to the U.S. in 1992 and works at as a quality control supervisor at a manufacturing plant, sustained an injury on the job prior to 2009 when an automatic door fell on his head.  He had undergone MRI treatments and additional treatments as a result.

In closing arguments, plaintiff attorney Eiman Sharmin (Sharmin & Sharmin) argued that Mr. Guaman will live in pain as a result of the injury with Allstate’s client for the rest of his life.  Mr. Guaman will continue to work and provide for his family, but he will “suffer in the silence at night when no one else sees what is going on…The way to make him whole again is by awarding him a number of dollars.”  Mr. Sharmin requested $2,000,000 in damages, including $207,140.23 in past and future medical expenses.

The Broward County jury awarded Jorge Guaman $47,140.23 in past medical expenses and $130,000 in future medical expenses, plus $15,000 for past pain and suffering, and $15,000 for future pain and suffering, for a total damage award of $207,140.23.

CVN webcast Guaman v. Allstate live.

Roe v. LA Unified School District (Los Angeles, California)

After three Los Angeles Unified School District officials at Porter Middle School used a 12-year-old boy — named only as Roe in the case — as bait in an attempted drug sting devised to expel a suspected drug dealing student at the school, the boy said he experienced threats from students at the school who said they knew he was the “snitch” and indicated that his participation in the operation was widely known. Fearing for the boy’s life, his parents moved him and his sister to another school district.

Plaintiff attorney Alexander Calfo (Yukevich Calfo & Cavanaugh) noted that the use of a minor in a drug sting is illegal, further arguing that the choice to use the boy in the sting operation was not only detrimental to the boy and his family but also unnecessary.

“Pursuant to their own policies and procedures, all they had to do was pick up the phone. Call the parents. Call the police,” Calfo said. “There were other methods, other than invading or intruding into this boy’s life.”

For the defense, Arthur Preciado (Gutierrez, Preciado & House) admitted that three school officials had used of a minor in a drug operation, but stressed that the school district had acted quickly in accordance with the severity of the situation and in no way intended to harm the child in question. Mr. Preciado added that the teachers executing the plan had no training in law enforcement.

“[Assistant Principal Armando Mejia] felt that it was so important to act then and act swiftly that he didn’t think about the potential consequences down the road,” Preciado said. “He felt that the greater concern was to act swiftly and to do something to take care of the problem.”

The jury found the defendants were liable for negligent supervision and negligence per se, and had acted recklessly and outrageously, and awarded the plaintiff $500,000 for past non-economic loss, $500,000 for future non-economic loss, $15,000 for future tutoring, and $250 for past tutoring, for a total of $1,015,250. The jury allocated 35% of the fault to Joyce Edelson (the Principal of Porter Middle School), 25% to Armando Mejia (Assistant Vice Principal), and 40% to Laura Custodio (Dean of Students).

CVN webcast Roe v. LA Unified School District live.