Articles Posted in Damages

Luisa Cruz Mezquital was driving her Mazda minivan when the oncoming 1995 Jeep Wrangler, driven by the defendant Abdulmohsen Almassud, lost control, crossed the center-line and crashed into her minivan. The Cruz driver-side window shattered.  Cruz’s left hand struck the Jeep as it scraped down the side of her minivan.

Cruz, who was 29 at the time, suffered serious injuries to her hand and arm, including a degloving injury to her left, dominant hand with significant loss of skin, muscles, nerves, tendons and fascia. In addition, she suffered severe, open fractures of multiple bones in her hand and closed fractures of the ulnar radius of the left arm.

She underwent open reduction internal fixation surgery to repair the forearm fractures that included installing plates and screws. Her middle left finger was amputated. A four-stage reconstruction surgery to her hand was undertaken, which included a split-thickness skin graft from her upper thigh.

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On July 28, 2008 Mai Leen Aguilar-Santos was injured in a car crash alleged to have been caused by the defendant, Helen Brine. On April 1, 2010 the lawsuit against Brine was filed by Mai Leen Aguilar-Santos seeking to recover damages for her injuries caused in the accident. Mai Leen claimed she sustained injuries to her neck, back and burns to her arm from the deployment of the airbag.

Before trial, the court granted Mai Leen’s motion for partial summary judgment, finding that Brine breached her duty of ordinary care in causing the car collision. Brine then filed an amended answer admitting that her negligence was the proximate cause of Mai Leen’s injuries, but denied that the injuries she sustained in the accident were permanent. Two treating doctors provided trial testimony.

One doctor, Dr. Lim, an orthopedic surgeon, testified that Mai Leen’s injuries and symptoms identified in the medical records were caused by the accident. He said Mai Leen’s condition may deteriorate with age or treatment. Dr. Lim examined Mai Leen recently and testified that she required future and further medical treatment for her pain and problems related to the automobile collision. The other treating physician, Dr. Malek, testified that Mai Leen suffered a permanent injury. Dr. Malek had not seen Mai Leen for 15 months prior to his evidence deposition that was presented to the jury.

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Donald Etherton was injured in a rear-end car crash. The other driver’s insurer settled with Etherton for $250,000, which was the insurance policy limits. Etherton entered a claim to Owners Insurance Co., his underinsured motorist coverage insurer, which had limits of $1 million. He requested that the company pay up to $750,000, which was the remainder of his insurance policy limit. Etherton’s vehicle had only minor damage, but Etherton underwent three back surgeries to repair disk damage to his spine.

Between July and December of 2009, he communicated frequently with Owners. Owners repeatedly indicated it needed additional information to assess his claim. On Dec. 30, 2009, Owners offered to settle the underinsured motorist claim for $150,000. Etherton asked Owners to explain the basis for the low offer. Owners responded that “our $150k offer is based on the documentation you have provided to date . . . We note serious questions of causation of Mr. Etherton’s injuries . . .”  Many other additional communications between Etherton and Owners failed to resolve the matter. Etherton filed this lawsuit in March 2010.

He first filed his lawsuit in the state of Colorado, which was removed to the Federal District Court. As the jury trial approached, Owners filed a motion in limine under Federal Rule of Evidence 702, seeking to exclude Dr. Joseph Ramos, Etherton’s causation expert. Owners argued that Dr. Ramos’s methodology was not reliable under Rule 702 and Daubert v. Merrill Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). After a Federal Rule of Evidence 104(a) Daubert hearing, the presiding federal judge ruled from the bench and excluded Dr. Ramos’s testimony, concluding his methodology was not reliable. Shortly thereafter, Etherton moved for reconsideration wherein the presiding judge recused herself from the case, and the case was reassigned to another judge who granted Etherton’s motion to reconsider. Based upon his review of the Daubert hearing transcript, the new judge concluded Dr. Ramos’s methodology was reliable and he therefore could testify.

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Ana Espinal, 41, was a home health aide who was working in a New York City hospital. She was walking in a hospital hallway when she slipped and fell in a puddle of water that had leaked from an air conditioner in the ceiling. She suffered neck, back, left hip and left leg pain and diminished sensation in her left, non-dominant arm. Espinal was diagnosed with herniated disks at C5-6 and L4-S1, bulging disks at C4-5 and L1-4, left shoulder impingement and aggravation of asymptomatic arthritis in her left knee.

Espinal underwent conservative treatment, but that failed. She then had a laminectomy infusion at L4-S1, which included implantation of stabilizing hardware. The following year she underwent three separate surgeries, including implantation of spinal stimulators and her neck and lower back and a left knee replacement. She required additional surgeries for repair or replacement of the spinal stimulators.

Her past medical expenses totaled $439,000. Her workers’ compensation carrier paid all the medical bills plus indemnity benefits and maintained a worker’s compensation lien of $567,800.

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In 2006, Kipling Development Corp. was building a home in Will County, Ill. Kipling was the general contractor on the job.  The firm hired subcontractors to handle specific pieces of the job, including Speed-Drywall and United Floor Covering.

A service technician, Brian Harwell, entered the worksite to replace a furnace filter, using the stairs leading to the first floor to the basement. In the process, the stairs collapsed beneath Harwell, sending him falling into the basement. He sustained serious injuries and filed a lawsuit against Kipling as the general contractor of the building site.

In the lawsuit, it was alleged that Kipling was negligent in choosing not to properly supervise and direct construction and failing to furnish Harwell with a safe workplace and a safe stairway. In addition, Harwell also sued Speed-Drywall and United Floor Covering, claiming that they had modified or failed to secure the stairwell.

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The 7th Circuit Court of Appeals in Chicago has affirmed a district court decision where sanctions were allowed in the form of attorney fees. The court of appeals stated that under Federal Rule 37, sanctions may include an order to pay the amount of reasonable expenses incurred in preparing the motion for sanctions, including attorney fees.

In March 2012, Angel Houston sued Hyatt Corp. and the Hyatt Regency Inn for breach of contract, intentional misconduct and negligence. The lawsuit arose out of injuries Houston suffered after falling at the downtown Indianapolis Hyatt Hotel during a hotel-sponsored New Year’s Eve party on Dec. 31, 2010.

Houston claimed that Hyatt chose not to provide a safe and secure environment for the party and that this failure was the proximate cause of her injuries. Damages were sought in excess of $1 million.

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The Illinois Supreme Court case of Kotecki v. Cyclops Welding, 146 Ill.2d 155 (1991) is the decision by the court that stands for the law that an employer may avoid contribution liability by waiving its lien under Section 5(b) of the Workers’ Compensation Act. This is in reference to the so-called “Kotecki cap” and affirmative defense that an employer has pleaded and then proved at trial. The question is: Can the employer invoke Kotecki with a post-judgment motion supported by affidavits specifying the amount of benefits it paid to the injured employee?

This is the issue that was taken up by the Illinois Appellate Court for the 3rd District in this Illinois case. Nacin Burhmester was injured while he was working for L.J. Keefe Co. Burhmester prevailed in a trial and received a verdict of $534,608 against Steve Spiess Construction Co.

Spiess in turn sued Keefe for contribution in a third-party action. The answer to the contribution claim by Keefe included an affirmative defense based on Kotecki.  Although Keefe paid benefits to Burhmester totaling $95,487 under the workers’ compensation policy of insurance, it did not present any evidence on this defense during the contribution trial.

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The United States Court of Appeals for the Seventh Circuit in Chicago has affirmed in part and reversed in part the district court’s decision regarding a third-party lawsuit.

Sam Chee was driving with his wife, Toni Chee, in August 2010 when their car slammed into a tree. Toni was seriously injured and taken to a hospital where she died within a week. The estate of Toni Chee filed two lawsuits. One was against Sam Chee for negligent driving and another was against the hospital and the attending physicians claiming medical negligence was a cause of Toni’s death.

The defendants in the medical malpractice claim filed a third-party action against Sam Chee, seeking contribution or other compensation from him should the medical defendants be held liable to the estate.

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Miguel Klesowitch filed a lawsuit against the defendant Chiquita Smith to recover for damages allegedly suffered as a result of the defendant’s negligence.  The trial judge granted summary judgment in favor of Klesowitch on the issue of defendant’s negligence only, leaving consideration of whether any of the plaintiff’s conduct was a proximate cause of his injuries and the amount of damages for trial.  At the trial before the jury, the judge admitted certain medical bills into evidence.  Portions of those bills had been written off by the medical providers.  The jury returned a verdict in favor of the plaintiff for the full amount of the medical bills admitted into evidence.  The verdict was affirmed in part, reversed in part and remanded back to the trial court with instructions.

On June 28, 2008, the plaintiff, Miguel Klesowitch, alleged that the defendant, Chiquita Smith, drove her car into the Klesowitch vehicle.  Smith drove her vehicle into an intersection without stopping at a stop sign and into the left side of Klesowitch’s vehicle.  Smith admitted not stopping because she did not see the stop sign.  The lawsuit complaint alleged that Klesowitch was injured physically, by expending large sums of money for medical expenses to be cured of said physical injuries and by lost money from being unable to pursue his usual occupation.  Smith filed an answer and affirmative defenses alleging that Klesowitch was guilty of contributory negligence.

In July 2014, Klesowitch filed a motion for summary judgment “on the issue of liability.”  Klesowitch’s motion asserted that at Smith’s deposition, she “set forth testimony indicating that she was clearly at fault for the accident.”

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On July 14, 2007, 16-year-old Eric Jones went to the city of Springfield’s public beach with his brother and cousins. The public beach is located on Lake Springfield. Eric did not know how to swim. He was in the water at least chest-deep when he disappeared beneath the surface. His relatives, brother and cousins did not report him missing for an unknown number of minutes. The nearest lifeguard had not noticed Eric’s disappearance.

As soon as the lifeguards were notified, they began searching the lake for Eric. It took several minutes to find him in the opaque water. They were unable to resuscitate him.

Eric was survived by his mother and brother. The family filed a lawsuit arguing that the city lifeguards violated the city’s internal guidelines regarding where the lifeguards would be located, chose not to immediately form a line search in the area where Eric was last seen, and were guilty of willful and wanton misconduct for those failures. It was alleged in conclusion that the city’s actions or inactions were the cause of Eric’s drowning death.

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