Trachtman & Trachtman, LLP Obtains Monetary Judgment against Plaintiff in Favor of Target after Jury Trial in Premises Liability matter
Facts: On January 9, 2012, Plaintiff a 45-year-old homemaker, was shopping at the Target store located in Aliso Viejo, California. While in the Toys clearance section, Plaintiff was holding a box containing a “Cars” foldable scooter above her head when the scooter dislodged from the box and struck her in the face. At the time of the incident, the scooter was not properly fastened to its packaging. There were a couple of zip ties that held the subject scooter to the back of the box housing same. However, these particular zip ties had been stripped away from the back of the box and were not holding the scooter.
Plaintiff testified that the subject box had been located on a shelf above her head. She further testified that as she lowered the box down toward her head, the scooter dislodged and struck her. Target presented evidence that the subject scooters were all located on a lower shelf and that Plaintiff mishandled the contents of the box by lifting the box above her head to check the price.
Immediately after the incident, both Plaintiff and her husband testified that Plaintiff had 10 out of 10 pain in her nose and head. They also testified that Plaintiff was bleeding out of her nostrils, had blood in her eyes and had blood running down her face. She had blurred vision, dizziness and was in shock. A few hours after leaving the store, Plaintiff testified she then began experiencing 10 out of 10 excruciating neck pain. Despite the foregoing complaints, Plaintiff and her husband testified that they did not go to the emergency room or seek any immediate treatment because they had no insurance. Rather, Plaintiff went to her attorney-referred chiropractor ten (10) days later.
As a result of the incident, Plaintiff claimed to have fractured her nose and sustained a deviated septum. Plaintiff underwent surgery to repair her deviated septum and to cosmetically remove a small hump on the bridge of her nose. Plaintiff testified that she required an additional nasal surgery because she was unhappy with the appearance of her nose following the initial surgery. Plaintiff’s nasal surgeon, Nazih Haddad, M.D., testified that Plaintiff traumatically fractured her nose in the incident and sustained a deviated septum. Dr. Haddad testified at trial that Plaintiff could benefit from an additional nasal surgery even though he had previously testified in deposition that he felt Plaintiff had a very nice result from the first surgery he performed.
Apart from her nasal complaints, Plaintiff complained that she sustained neck injuries requiring 37 chiropractic visits. Despite said treatment, Plaintiff testified that she still had constant 6-7 out of 10 neck pain on a daily basis.
Plaintiff incurred $33,000 in past medical specials for her nasal surgery and chiropractic visits. Plaintiff claimed an additional $20,000 in future medical specials for the additional nasal surgery and future chiropractic treatment. Plaintiff testified that she had never previously had any breathing or issues with her nose nor any treatment for prior neck complaints.
Target introduced evidence via its employees and an Orange County Fire Authority Captain who responded to Plaintiff’s request for an ambulance. The Target witnesses and Fire Captain all testified that Plaintiff was in no distress, merely had a ¼ inch cut on the top of her nose, she was not bleeding, did not report any pain to her nose, she was completely alert and calm, and there was no visible swelling to indicate a nasal fracture.
Target offered evidence that Plaintiff did not sustain a fractured nose or deviated septum in the incident. Specifically, through Dr. Michael Persky, an ENT/plastic surgeon, and via radiologist Matthew Lotysch, M.D., Target argued that Plaintiff’s deviated septum pre-existed the incident and there was no evidence of any hemorrhage or typical structural defects establishing the fracture. Specifically, Dr. Lotysch compared a 2009 CT scan of Plaintiff’s head with the post-incident 2012 MRI of Plaintiff’s brain and conclusively showed that Plaintiff had the same exact deviation in her septum and that the 2012 MRI was devoid of any abnormalities indicative of a fracture.
Target also disputed the nature and extent of Plaintiff’s neck injuries. Specifically, through Michael Weinstein, M.D., a spine specialist, Target proffered that Plaintiff, at most, sustained very modest soft tissue injuries to her neck though there was no objective evidence to support same. Dr. Weinstein testified that if Plaintiff sustained any soft tissue injuries, her treatment would be limited to 20 chiropractic treatments at a cost of $2,000, plus the cost of a neck MRI. Target also presented evidence at trial impeaching Plaintiff’s denial of prior neck injuries by establishing that Plaintiff was admitted to the emergency room 2½ years before the incident complaining of head and neck pain. During that visit, Plaintiff underwent a CT scan of her neck and was diagnosed with an acute cervical strain.
During closing argument, Plaintiff’s attorney told the jury that Target was entirely at fault for the incident and that Plaintiff’s claim was properly valued somewhere in the middle of $1.00 and $1 million, implying a $500,000.00 requested verdict. In his closing argument, Ben Trachtman asked the jury to value Plaintiff’s damages at $6,000.00 while reducing that amount by at least 25% for Plaintiff’s comparative fault, for a requested jury verdict of $4,500.00.
Outcome: After deliberating for 2 hours and 10 minutes, the jury found Plaintiff’s damages to be $3,350.00 but discounted said damages by its finding that Plaintiff was 40% at fault for the incident. This resulted in a verdict to Plaintiff of $2,010.00.
However, Target later filed a Motion for Costs and expert fees because the verdict was less than Target’s CCP §998 Offer ($62,000.00). The Court granted Target’s Motion and awarded Target $3,797.31 in costs and expert fees. As a result, Target has a net judgment against Plaintiff for $1,787.31. NOTE: Plaintiff’s last settlement demand to Target was $122,500.00.