Trachtman & Trachtman, LLP Wins MSJ for Target In Multiple Surgery Case
Facts: On July 30, 2014, Plaintiff was walking along the Main Aisle when she slipped and fell on the floor near the check lanes. Plaintiff, who was with her adult-aged daughter at the time of the incident, claimed to have slipped on a white cart wipe that had been left on the floor. Neither Plaintiff nor her daughter could testify that she slipped on the wipe; rather, Plaintiff’s daughter saw it near Plaintiff after the fall. The fall was caught on videotape. A Target Team Member threw out the cart wipe and it was never photographed.
Plaintiff claimed that she slipped on a cart wipe, that as many as 32 cart wipes are picked up off the floor each day and that the white wipes (against a white floor) were dangerous because Target changed the cart wipe color to blue after the accident.
Target’s position was that Plaintiff could not prove that she slipped on the cart wipe and therefore there was no dangerous condition. Further, Target had no actual or constructive notice of such cart wipe. In this regard, approximately 5½ minutes before the fall, a Target Team Leader walked through the fall location (also captured on video) and testified, about 10 different times, that there was no cart wipe present though he would not state so with certainty. Rather, while it was “possible that he could have missed it”, the probability was quite low. However, Plaintiff argued that since the Target employee could not “definitively” say the cart wipe was not present during his inspection, he was not to be believed.
In fact, Plaintiff’s attorneys in this case brazenly threatened to seek sanctions against Target and our firm for purportedly suborning perjury via the Team Leader’s declaration in support of the MSJ. On top of that, our adversaries further threatened us with additional sanctions for Target’s purported spoliation of the evidence via throwing out the cart wipe before photographing it. Prior to filing their opposition, Plaintiff’s attorneys demanded that the MSJ be withdrawn based on their outrageous perjury and spoliation claims. Needless to say, our firm rejected Plaintiff’s request.
Relative to Plaintiff’s modest fall, Plaintiff claimed that she traumatically tore her medial meniscus in her left knee and underwent surgery for same. Further, in the same fall, Plaintiff also claimed that she blew out both her L4-L5 and L5-S1 discs. She also underwent a two-level lumbar laminectomy and microdiscectomy surgery for those alleged accident-related claims. Plaintiff’s surgeons – Tushar Doshi, M.D. (knee) and Kasra Rowshawn, M.D. (low back) – naturally performed said procedures on a lien. Plaintiff’s attorney-managed medical bills totaled $223,000. Dr. Rowshawn testified that Plaintiff required a two-level fusion going forward. Both of Plaintiff’s attorney-managed physicians testified that all of Plaintiff’s past and future medical care and expenses were caused by her fall.
We hotly disputed Plaintiff’s damages claims. We were prepared to demonstrate that Plaintiff failed to exhibit any symptoms remotely suggestive of a traumatically torn meniscus nor a traumatically-caused herniated disc, let alone two discs. Plaintiff’s knee MRI revealed a long-standing degeneration/wearing-away of Plaintiff’s meniscal cartilage such that she was walking, bone on bone, for many years. Regarding her low back, Plaintiff’s lack of acute symptoms, combined with her lumbar MRI’s, revealed no evidence of any traumatic injury nor any nerve root irritation warranting surgery. Rather, at most, Plaintiff suffered a soft tissue injury to her lumbar spine.
The case was venued at the U.S. District Court, Central District of California, Santa Ana. Honorable Andrew Guilford presided over our case. Based on the accident facts, Target filed a MSJ on the liability issue. Kevin Henderson prepared our MSJ papers.
Outcome: On September 13, 2017, Judge Guilford granted our MSJ and ruled, as a matter of law, that Plaintiff could not establish that she fell as a result of a dangerous condition on Target’s premises. Further, as a matter of law, Target had no actual or constructive notice of any alleged dangerous condition via its reasonable inspection of its premises. Judge Guilford strongly rejected Plaintiff’s perjury claims and found Plaintiff’s spoliation claims to lack merit.
Plaintiff appealed the ruling to the Ninth Circuit Court of Appeals. On August 16, 2019, the Ninth Circuit affirmed the District Court’s granting of Target’s MSJ.