In April 2019, Jim Perkins and Brad Byszewski of Colman Law Group prevailed in a Los Angeles premises liability/slip-and-fall jury trial. Our client admitted negligence in this Los Angeles Superior Court case.
Plaintiffs’ final settlement demand was $5 million on the eve of trial. The jury saw through it and shaved the net award down to less than 5%, $231,258.
Our client’s pre-trial statutory offer to compromise was $500,110.
Plaintiff fell at the defendant’s gas station
The plaintiff, a 57-year-old woman, pulled into our client’s gas station. After inserting the nozzle in her tank and starting the gas flow, the nozzle detached from the hose. Gas spilled onto plaintiff, her vehicle and the ground.
She notified the attendant on duty, who used the emergency shutoff to stop gas flow.
While the attendant went for cleaning supplies, plaintiff walked through the gas puddle, taking photographs. She said she slipped in the gas and landed on her buttocks. Plaintiff was transported by ambulance to a local hospital.
The plaintiff filed a lawsuit against our client, alleging claims for negligence and premises liability. Plaintiff’s husband alleged a loss of consortium.
Three years of treatment, then lumbar fusion surgery
Plaintiff claimed injuries to her neck, shoulders and entire back, including a 6mm disc bulge at L5-S1. Months of physical therapy, chiropractic and other physiotherapy modalities followed. She also received a series of three lumbar epidural steroid injections at the L5-S1 level, reporting only temporary relief after each one.
In spite of nearly three years of continued treatment, plaintiff reported lower back pain at a constant 8 to 9 out of 10 with bilateral radiculopathy (pain, numbness or weakness) into the lower extremities.
In April 2018, she elected to undergo lumbar fusion surgery by Dr. Fardad Mobin, who used a Lanx clamp at L5-S1. She extended post-operative therapy for months. While plaintiff reported some relief, she claimed continued pain.
Plaintiff shoots for the stars and falls short
On the eve of trial, plaintiffs made a “final” settlement demand of $5 million. This followed their prior demand of $2 million. The defense rejected both offers, refusing to foot the bill for plaintiff’s comparative fault and questionable lien-based medical treatment. Instead, we opted to put the matter before a jury.
As for liability, at trial we admitted fault for causing the gas spill. But we asserted the plaintiff owned some degree of fault for walking through gas she admitted she realized was on the ground.
We stressed that she knowingly walked through the spill at least three times before she fell.
Plaintiff produced experts who testified that our client violated statutory law and industry recommended practices, which we contested.
The case for damages
Dr. Fardad Mobin claimed that his fusion surgery, billed at $175,000, was medically necessary and caused by the incident. He testified that plaintiff would also require lifetime care: a spine care specialist, a pain management professional, physical therapy, imaging studies, and at least three epidural injections per year.
In addition, Dr. Mobin testified that she would develop adjacent segment disease requiring a second lumbar fusion surgery, with a price tag topping $180,000.
The claimed future care added up to well over $1,000,000, on top of plaintiff’s past lien-based past medical expenses of $286,000.
The defense offered experts to rebut plaintiff’s safety, industry custom/practice and neurosurgical experts.
Our premises liability expert opined that the gas station attendant’s response to the spill was reasonable. He highlighted the inherent flaws in plaintiff’s coefficient of friction testing on the slipperiness of the gas-covered ground by Brad Avrit.
Our neurosurgical expert relied on plaintiff’s pre-operative MRI to show there was no S1 nerve root compression, that plaintiff’s subjective symptoms were therefore exaggerated, and that her fusion surgery was premature at best.
Our billing and utilization expert offered a reasonable value range for plaintiff’s past and alleged future medical costs which was well below plaintiff’s incurred lien-based charges. The jury adopted our figures.
Jury sides with defendant, assigns partial fault to plaintiff
After nine days of trial, the jury returned its verdict in one day. The jury ruled that plaintiff was 38% at fault, with 62% fault assigned to defendant.
Plaintiff was awarded $48,000 in past medical expenses (on billed expenses of $286,000) and $190,000 in future medical expenses (on alleged expenses in excess of $1,300,000).
Non-economic damages were set at $134,996, bringing the gross award to $372,996. Reducing this amount by plaintiff’s comparative fault of 38%, plaintiff’s net recovery was $231,257, or less than half the amount offered by defendant prior to trial. Plaintiff’s husband was awarded $0 on his loss of consortium claim.
Counsel – James Perkins and Brad Byszewski, Colman Law Group
Premises liability expert – John Brault, MS
Neurosurgical expert – Scott Lederhaus, M.D., FAANS
Billing & utilization expert – Henry Lubow, M.D.
Counsel – Andrew Bryman and Brendon Norton, of Bryman & Apelian and Perry Rausher of Law Offices of Perry Rausher
Premises/safety expert – Brad Avrit, PE
Petroleum industry expert – Wolf Koch, Ph.D.
Neurosurgical expert – Fardad Mobin, M.D., FAANS