Trachtman & Trachtman, LLP Obtains Defense Verdict in Multi-Million Dollar Personal Injury Exposure Case

Plaintiff, a 40-year-old Permanent Makeup Artist, sued Target in Los Angeles Superior Court, Downtown (Central District). Plaintiff alleged that she and her 12-year-old daughter entered one of Target’s stores to purchase an iPod boombox. After selecting the item, they walked up to the check stand to purchase it. When the cashier rang up the product, it came out $30 higher than Plaintiff thought the product should cost. Plaintiff decided to walk back to the electronics department to conduct a price check because of the discrepancy. [The discrepancy was due to Plaintiff’s inadvertent selection of a unit that had a CD player within it]. While walking back out through the check lane, Plaintiff alleged that her foot came into contact with small toys that were strewn about the floor. At the time of the incident, Plaintiff reported that she “scuffled with a small boy who was in her way and then fell to the ground.” Plaintiff testified that she never saw the purported toys on the floor prior to allegedly stepping on them despite the fact that she walked through the area (to get to the actual cash register) only a couple of minutes prior to the fall. To try and prove that the toys had been on the floor in excess of fifteen minutes, to impute notice to Target, Plaintiff had her daughter testify that she saw the toys on the floor when they entered the store and they remained there until Plaintiff tripped on them. Plaintiff and her daughter also testified that Plaintiff was on the floor for 3-5 minutes, that Plaintiff’s daughter physically helped her up (because Plaintiff’s injuries were so debilitating) and that she assisted her mother in walking straight back into the check lane to report the fall and injuries. A store surveillance film impeached Plaintiff’s post-fall claims and specifically showed Plaintiff getting up on her own, within 9 seconds, and her daughter was nowhere in sight. The video next showed her purposefully walking from the fall location to the electronics department.

Plaintiff incurred approximately $1.3 million in medical bills for five (5) back and neck surgeries (two-level fusions at two lumbar areas, one two level fusion in the cervical spine and a remedial procedure in the lumbar area); she claimed, at 40-years-old, that she was completely unemployable for the rest of her life and had experts testify to same. While Plaintiff admitted that she had a lumbar discectomy in 2004, she claimed in deposition testimony and written discovery responses to be asymptomatic for 2 years prior to the fall. Plaintiff aggressively attempted to initially conceal that she had previously herniated a disk in her neck. Through extensive discovery and investigation, including depositions of Plaintiff’s prior treaters in NY, Plaintiff’s history was exposed and her claims impeached.

Target’s liability defense was based on the eyewitness testimony of the cashier who testified that she observed the floor immediately after Plaintiff fell and no toys were present; a Guest Services Team Leader who testified that there were no toys on the floor within 5-10 minutes of the fall as she had speed-weaved through the area; and the Leader on Duty who testified that Plaintiff reported that she fell over a small boy who she did not see as she hurriedly attempted to exit the check lane.

After successfully getting the Court to bifurcate the liability phase of the trial from the damages phase, the jury returned a defense verdict in favor of Target. It is also noteworthy that Target never offered Plaintiff any money to settle the case.

Plaintiff appealed the verdict/judgment primarily on the grounds that the trial court abused its discretion by allowing into evidence the hearsay testimony of one of Target’s Team Members. Specifically, the court allowed Target’s cashier to testify about what the boy’s mother said immediately after the fall, including a statement to the effect that Plaintiff tripped over her boy. Horvitz & Levy represented Plaintiff in her appeal.

Trachtman & Trachtman, LLP handled the appeal. It was a collaborative effort between Ryan Craig and Ben Trachtman. Our primary position was that the mother’s statement constituted a clear exception to the hearsay rule because they were excited utterances. Moreover, there was no legitimate basis to claim that this evidence prevented Plaintiff from achieving a more favorable result. Rather, there was a plethora of evidence, including most notably the wholesale impeachment of both Plaintiff’s and her daughter’s testimony regarding all salient circumstances of the fall.

Outcome: Ben Trachtman argued the appeal on behalf of Target. On October 22, 2012, in an interesting-reading decision highlighting the impeachment evidence introduced at trial, the Court of Appeal unanimously affirmed Target’s judgment against Plaintiff.