Trachtman & Trachtman, LLP Obtains Defense Verdict for Target
Between June 6, 2016 and June 21, 2016, for 8 days of jury selection and trial proceedings, Ben Trachtman tried this personal injury matter for Target Corporation.
Facts: On March 17, 2015, Plaintiff, a 37-year-old woman, was shopping with her husband at a Target store located in Santa Ana, California. While in the hair care aisle, Plaintiff slipped and fell on some white cream haircare product that had been splat from a nearby broken bright green tube of Garnier Fructis Flatiron hair care product. The outside of the green tube was smeared with the white cream haircare contents. Plaintiff had been in the aisle for approximately five (5) minutes before falling.
Prior to trial, Plaintiff had initially reported to Target Management that she saw “two blue things on the floor but did not see the white cream.” In deposition and at trial, Plaintiff denied saying that she saw two blue things on the floor. She further testified that she never saw the green tube on the floor nor the cream prior to falling. Rather, during the entire five minute period while in the subject aisle, Plaintiff’s attention was fully distracted as she looked for a different haircare product. At trial, Plaintiff testified that a woman with a shopping cart blocked her view of the white cream on the floor. When Plaintiff passed by this woman, she immediately stepped in the white cream, which she claimed was camouflaged by the white-colored VCT floor, and fell to the ground. Plaintiff also testified that the woman with the cart never stopped to assist Plaintiff while she was on the ground. Plaintiff also tried to develop an argument that Target management may have later placed the green tube on the floor as Target’s post-incident photos showed the white cream within 18”- 2’ of the broken bright green tube on the floor. Plaintiff also alternatively attempted to present evidence that the green tube was difficult to see because it was adjacent to the bottom of a shelf.
Prior to the fall, Target did not have any employees assigned to this particular section of the store. However, within 43 minutes prior to the accident, one of Target’s Team Members walked by the subject aisle, within 4-6’ of where the green tube and cream was later found on the floor. Said Team Member testified that while she was walking by the aisle, as she is trained to do, she looked into the aisle for customers and for any items on the floor that could present a slipping hazard. The Team Member testified that the aisle was free and clear of any debris or substances.
Plaintiff presented expert testimony from Philip Rosescu, a protégé of Brad Avrit (Wexco Engineering), who testified that Target’s VCT flooring was “inherently dangerous” and should be replaced with carpet squares throughout. Mr. Rosescu also testified that Target’s “inspection” was not adequate (per industry standards – Mr. Rosescu could only cite to Costco and CVS as the “industry standard”) because the Team Member did not walk into the aisle and Target did not maintain sweep sheets. Mr. Rosescu further aggressively testified that the Team Member could not have seen the green tube nor the white cream on the floor during said inspection because he timed the observation length to be one second or less. Thus, despite the former Team Member testifying at trial that she conducted the inspection and was sure that neither the green tube nor cream was on the floor, she was not to be believed. Mr. Rosescu also testified that Plaintiff never had a duty to look at the floor surface during the five-minute period she was in the aisle and therefore could not be comparatively at fault. In addition to some other untenable opinions he rendered, Mr. Rosescu testified that a customer in a retail store NEVER has a duty to ever look at the floor surface in front of them as they walk in the store.
Target took the liability position that the Team Member’s inspection was adequate and met industry standards as both Mr. Rosescu and Target’s expert, Ken Solomon, Ph.D., testified that inspections must be done every 30-60 minutes to be reasonable. Further, since the substance and green tube was only 4-6’ away from her, the Team Member was able to clearly determine whether these items were there (or not) when she looked into the aisle. Dr. Solomon testified that Target’s inspection system was compliant with industry standards and cited numerous industry peers who did not utilize sweep sheets. Finally, Dr. Solomon testified that Target’s VCT floor was very safe and was the flooring of choice in the industry.
Target also argued, in the alternative, that Plaintiff was substantially comparatively at fault for failing to ever look at the floor surface and take notice of the open and obvious bright green tube of splat product with the white cream sitting only 18” – 2’ away. In fact, multiple witnesses, including Plaintiff’s husband, testified that the white cream, on its own, was visible from 8-10’ away.
On the damages side, Plaintiff went to Kaiser’s Urgent Care facility on the night of the accident and was diagnosed with a lumbar sprain. Plaintiff never returned to Kaiser for any follow-up care (despite providing sworn testimony to the contrary). Instead, Plaintiff hired her attorney and then he referred her to all of her healthcare providers including an orthopedist, a pain management specialist, a chiropractor, another pain management specialist (Sonny Rubin, M.D. — who performed 3 epidural injections at a perfectly normal (per MRI) C7-T1 disc space), another chiropractor and a neurosurgeon affiliated with Dr. Rubin. Plaintiff never complained of radicular symptoms down either arm. Instead, she always complained of never ending pain between her shoulder blades.
Plaintiff racked up over $66,358.00 in medical specials which were mostly derived by Dr. Rubin’s 3 epidurals wherein he, the surgery center, and the anesthesiologist charged a whopping $49,000.00 for these three 10-minute procedures.
On our side, mainly via Michael Weinstein, M.D., we proved that Plaintiff merely sustained, at most, a cervical and lumbar sprain. She had no objective findings for her chronic complaints. Her MRI findings showed longstanding degenerative disc disease findings. Moreover, her cervical MRI showed a couple of very small disc protrusions without any evidence of spinal stenosis or nerve compression. Dr. Weinstein testified that the reasonable and necessary medical treatment for these injuries was limited to a few doctor’s visits, the MRIs and the initial four month chiropractic course of treatment – though he would have preferred that Plaintiff received physical therapy and patient education instead. The reasonable value of these services was approximately $6,575.00. Dr. Weinstein took significant issue with Dr. Rubin’s epidurals and testified that they were not medically indicated. Further, Dr. Weinstein testified that the reasonable value for these epidurals (all-in: doctor; facility; and anesthesia) was less than $2,500.00 per epidural.
In closing argument, Plaintiff’s attorney, Raymond Ghermezian, Esq., asked the jury to award Plaintiff the sum of $129,608.00. Ben Trachtman asked the jury for a defense verdict but in the event that the jury found Target to be negligent, Ben asked the jury to award Plaintiff $6,575.00 in past medical specials, $5,000 maximum for pain and suffering, and assess a minimum amount of comparative fault at 60% to Plaintiff, which netted out to a maximum verdict of $4,630.00.
Outcome: After deliberating for only 30 minutes, the jury voted 10-2 and gave Target a defense verdict.
Prior to trial, Target had served a CCP §998 Offer on Plaintiff for $25,002.00. Plaintiff had served Target with an initial CCP §998 Offer in the amount of $99,999.00. Plaintiff later served a CCP §998 Offer in the amount of $49,999. Finally, during the final week before trial, Plaintiff offered to settle the case for $35,000.00 and Target rejected same. Target expects to collect its costs and a substantial amount of expert fees.