TOP 15 CASE SUMMARIES
1. BREACH OF CONTRACT
Unpaid royalties violated agreement to license patented toy technology
Court: American Arbitration Association
Case type: Contracts – breach of contract, intellectual property – breach of licensing agreement
Case Name: Johnson Research & Development v. Hasbro and Hasbro International No. 30-133-Y-0006413
Date: Nov. 19, 2013
Johnson Research & Development
Attorneys: Benjamin F. Easterlin IV, Jonathan D. Letzring and Jessica E. Sabbath, all of King & Spalding, Atlanta.
Expert: Jeanne Manos, CPA, Los Angeles.
Hasbro and Hasbro International
Attorneys: Darin W. Snyder of O’Melveny & Myers, San Francisco, and Jennifer Glad of O’Melveny & Myers, Los Angeles
Expert: Ben Sheppard, accounting, Los Angeles
On April 17, 1998, Lonnie Johnson, a man in his 50s and the owner of Johnson Research & Development, entered into an agreement with Hasbro to license his patented technology for what became the Nerf dart gun. In the agreement, Johnson Research gave Hasbro the rights to use his technology in its toys, in exchange for royalty payments on each Nerf gun sold. According to the plaintiff, the agreement also included a provision that required Hasbro to pay royalties on items from the toy line that were sold under the same or similar name, even if Hasbro did not actually utilize Johnson Research’s patented technology. According to Johnson Research, in approximately 2005, Hasbro introduced toys in the N-Strike line that did not use its patented technology. Johnson alleged that it did not receive royalties from these products.
Johnson Research & Development filed a claim against Hasbro, as well as Hasbro International, alleging that it was owed for royalties related to the sales of toys under the N-Strike line pursuant to the contract between the parties.
According to Johnson, the contract he signed entitled him to royalties for the toy lines in question, even if none of the technology that Johnson licensed to Hasbro was used. According to plaintiff’s counsel, the rationale for this agreement was that the first toys produced by Hasbro used the technology and, in the course of doing so, created and built up a demand for the later toys in the line, some of which did not include any of Johnson’s patented technology. Johnson contended that he chose to make this a part of the contract, an unorthodox move in negotiations of the sort, due to previous experience licensing the technology for the popular Super Soaker line. In that case, Johnson claimed that he stopped receiving royalties after the company chose to make toys in the line without using his technology.
Defense counsel disputed Johnson’s allegations, contending that the contract agreed to by Johnson did not call for royalties on the N-Strike line. They also alleged that Johnson had waived his right to recover any royalties to which he believed he was entitled, due to his not being timely in acting to attempt the recovery of these royalties.
The parties initially disputed the amount in compensatory damages to which Johnson would be entitled, if he were in fact owed any at all. Johnson Research & Development retained the testimony of an accounting expert, who testified to the amount to which the plaintiff would be entitled. This amount was disputed by Hasbro, which retained the testimony of its own accounting expert, who opined to a lower amount in royalties to which Johnson would be entitled, if any. Before the conclusion of the litigation, the parties agreed that Johnson would be owed $51,663,853 in back payments, if anything at all.
On Feb. 1, 2013, the parties filed for binding arbitration. A four-day hearing in August 2013 was led by Richard Mainland of AAA. The arbitration resulted in an award of $73,015,915, which was later reduced to $70,046,428.79 after a correction in prejudgment interest was calculated into the award.
Johnson Research & Development:
$51,663,853 Commercial: back royalty payments
$21,220,117 Commercial: interest
$131,945 Commercial: fees
Actual award: $70,046,428.79
Arbitrator: Richard Mainland
Trial length: Four days
Post trial: Defense counsel was considering a possible appeal of the arbitration award.
This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.
2. ASSAULT AND BATTERY
Jury: Six Flags primarily liable for beating of park attendee
Amount: $35 million
Court: Cobb County State Court
Injury type: Coma, traumatic brain injury
Case type: Intentional torts – assault and battery; worker/workplace negligence – negligent security; premises liability – inadequate or negligent security, amusement park/place of entertainment
Case name: Jo-Ann Taylor as Conservator for Joshua R. Martin v. Six Flags Over Georgia II LP; Six Flags Over Georgia, Willie Gray Franklin Jr.; Brad McGail Johnson, DeAndre Evans and Claude Morey III, No. 09-A-04531-3
Date: Nov. 20, 2013
Joshua R. Martin (male, 19)
Attorneys: Andrew T. Rogers and Gilbert H. Deitch of Deitch & Rogers, Atlanta; and Michael L. Neff, Susan M. Cremer, T. Shane Peagler and D. Dwayne Adams, Law Offices of Michael Lawson Neff, Atlanta.
DeAndre Evans, Claude Morey III, Brad McGail Johnson, Willie Gray Franklin Jr., Six Flags Over Georgia, Six Flags Over Georgia II LP
Attorneys: Wayne D. McGrew III, Charles M. McDaniel Jr. and Kim M. Ruder, all of Carlock Copeland & Stair, Atlanta, for Six Flags Over Georgia and Six Flags Over Georgia II LP. None for DeAndre Evans, Claude Morey III, Brad McGail Johnson and Willie Gray Franklin Jr.
Insurers: ACE USA, AIG, Great American and XL Insurance America for Six Flags
On July 3, 2007, plaintiff Joshua R. Martin, 19, a student, went to Six Flags Over Georgia in Austell. Martin went to the park with two friends to celebrate one of them getting into college. Martin claimed that, after spending a day at the park, he and his friends missed a bus and waited by a guardrail where customers and employees often sat to be picked up.
At approximately 9 p.m., after returning to the bus stop, Martin and his friends were attacked by a group of Six Flags employees, who beat Martin into a coma using their feet, with at least one using brass knuckles. The employees were allegedly involved in a prior altercation in the park involving a family, which was reported to park security. Martin suffered a traumatic brain injury.
Martin, through his conservator Jo-Ann Taylor, sued Six Flags Over Georgia II LP and Six Flags Over Georgia, as well as Willie Gray Franklin Jr., Brad McGail Johnson, DeAndre Evans and Claude Morey III, four employees alleged to have been involved in the beating. Plaintiff sued for negligence, assault and battery.
Franklin and Johnson pleaded guilty to aggravated assault and for violating Georgia’s Gang Act, while Evans and Morey were tried before a Cobb County jury and found guilty of aggravated assault and violation of Georgia’s Gang Act in criminal court. The four individuals were not represented at the civil trial.
Martin claimed he did not know of a prior altercation inside the park, in which the four defendant employees, who were allegedly wearing “Young Gangster Living” (YGL) gang colors and shirts, threatened a family near one of the rides. Martin claimed that, while the incident involving the family was reported to security, Six Flags Over Georgia did not have the recommended off-duty police that night, performed minimal investigation and did not follow its policy manual in expelling the large group of gang members after the initial altercation.
Martin argued that Six Flags tolerated its employees being in gangs and ignored the culture of violence on its property. Plaintiff claimed Six Flags had knowledge of numerous instances of employees attacking each other, park security and customers, as well as evidence of gang activity in the employee locker room. Plaintiff claimed that his beating would not have happened had Six Flags addressed these issues and provided reasonable security.
Plaintiff’s counsel reported that Eddie Herman, a local police officer, testified to numerous “hot spots” for crime and violent activity, including a bus stop on park property where a drive-by shooting occurred in 2006. Plaintiff’s counsel claimed Herman also recommended that Six Flags Over Georgia have 24/7 police on duty due to the prior incidents at the park.
Six Flags disputed liability, contending that the particular area where the incident occurred was several hundred feet beyond the park’s property line. Six Flags further argued that the four employees named were off-duty and not in the scope of their employment at the time of the incident. Furthermore, Six Flags claimed there was no proof that the four employees were involved in the prior incident inside the park, which Six Flags disputed and claimed the facts were quite different in the evidence.
Six Flags further contended that there was no proof the attackers were wearing YGL clothing. Six Flags noted that Franklin testified that his actions were random, he did not know why he did it, he was very sorry and regretted it, and the amount of security did not make a difference. Six Flags further claimed the plaintiff’s account of Herman’s testimony is misleading and not entirely accurate.
Martin argued that Six Flags had control over the property around the subject bus stop where the beating occurred, including having placed uniformed officers there to direct traffic, having security patrol the area, and placing barricades and signs just feet from where the incident occurred.
Martin was taken from the scene of the incident by ambulance to the emergency room. He spent one week in a coma and was diagnosed with a traumatic brain injury. After being released from the hospital, Martin was treated by several doctors at the Roosevelt Warm Springs Institute.
Martin’s treating doctors claimed his injury is permanent and will impact every facet of his life for the remainder of his life. Plaintiff sought $7 million in future life care planning, which will include a structured living environment. He sought additional compensation for lost wages and pain and suffering.
Defendants did not dispute the severity of plaintiff’s claimed injuries.
The jury found Six Flags 92 percent at fault and each individual defendant 2 percent at fault. Plaintiff was awarded $35 million in total damages.
Judge: Kathryn J. Tanksley
Demand: $10 million (during jury deliberations)
Trial length: Seven days
Trial deliberations: 11 hours
Jury vote: Unanimous
This report is based on information that was provided by plaintiff’s and defense counsel.
3. MEDICAL MALPRACTICE
Doctors should have waited for swelling to go down before surgery
Amount: $17.5 million
Court: DeKalb County State Court
Case type: Medical malpractice – negligent treatment
Case name: Patrick Merritt as Guardian for Sheriod Merritt and Angela Merritt v. Fulton-Dekalb Hospital Authority, d/b/a Grady Health System, a/k/a Grady Memorial Hospital, Grady Health Services Company, Grady Memorial Hospital Corporation, Emory Healthcare, The Emory Clinic, Emory University, James E. Richardson, M.D., John H. Culbertson, M.D., Hanjoom Mike Song, M.D., Laura B. Cooper, M.D., Richard A. Nardi, John Doe M.D. 1-2, John Doe PA/CRNA 1-2 and XYZ Corp. 1-2, No.10A26759
Date: March 27, 2013
Angela Merritt and Sheriod Merritt
Attorneys: Shean Williams, Jane Lamberti and Edtora T. Jones, The Cochran Firm, Atlanta.
Experts: LuRae Ahrendt, R.N. life care planning, Lawrenceville; Darrell L. Henderson, M.D., plastic surgery/reconstructive surgery, Lafayette, La., Brian McAlery, M.D., anesthesiology.
Fulton-Dekalb Hospital Authority, d/b/a Grady Health System, a/k/a Grady Memorial Hospital, Grady Health Services Co., Grady Memorial Hospital Corp., Emory Healthcare, The Emory Clinic, Emory University, James E. Richardson, M.D., John H. Culbertson, M.D., Hanjoom Mike Song, M.D., Laura B. Cooper, M.D., Richard A. Nardi, John Doe M.D. 1-2, John Doe PA/CRNA 1-2, XYZ Corp. 1-2
Attorneys: Thomas G. Sampson II and Meka B. Ward, Thomas Kennedy Sampson & Tompkins, Atlanta
Experts: Raphael Gershon, M.D., anesthesiology, Atlanta; Navin Singh, M.D., plastic surgery/reconstructive surgery, Baltimore
On Aril 9, 2008, plaintiff Sheriod Merritt, then 19, was leaving a Walmart in Lovejoy, when he was struck in the jaw by a stray bullet. The bullet left a fragment in the back of his throat. Merritt was transported to Grady Memorial Hospital for treatment by 11 pm. A CT scan revealed a left mandibular fracture with a large bullet fragment lodged in the left prevertebral space, near his spine. Shortly after admission, physicians determined that Merritt would need his wound cleaned and his jaws wired shut.
On April 11, his physicians decided to repair Merritt’s jaw, all the while aware that Merritt’s airway remained partially obstructed and swollen, as he previously underwent surgery to wire his jaws together. Merritt was placed under general anesthesia, and displayed mild agitation, moving his head from side to side and slightly contracting his arms and legs. The physicians anticipated that because Merritt had this tendency to become agitated coming out of anesthesia, four people were planned to restrain Merritt’s arms and legs after the surgery. After an injection of another anesthetic, a nasal breathing tube was inserted, and the surgery was completed. Consequently, as Merritt came to from the anesthesia, he again became agitated and became combative. Instead of the four individuals, only two were present.
Merritt, with his wired jaws already delaying his breathing, then pulled out his endotracheal tube and flipped over in the bed and was without oxygen for approximately 7-8 minutes as physicians tried to re-intubate him. It was discovered that Merritt suffered a hypoxic brain injury.
Plaintiffs, Merritt, by his Guardian and father Patrick Merritt, as well as Angela Merritt, Merritt’s mother, sued Fulton-Dekalb Hospital Authority, doing business as Grady Health System, and James E. Richardson, M.D., John H. Culbertson, M.D., Hanjoom Mike Song, M.D., Laura B. Cooper, M.D. and Richard A. Nardi for medical malpractice. At trial, Emory University and three doctors including anesthesiology resident James Richardson, and plastic surgery residents Hanjoom Song and Laura Cooper as well as nurse anesthetist Richard Nardi, a Grady employee, who assisted.
Plaintiffs contended that Merritt’s airway was already 80 percent narrowed by the swelling from wiring his jaw, and after that surgery, that 60 percent of his ability to breathe was taken away, so Song and Cooper should not have pushed for the subject surgery until the swelling had gone down and his breathing was unobstructed. Plaintiffs noted that this surgery was elective. Plaintiffs further contended that the anesthesiologists, Richardson and Culbertson, failed to follow their own post-surgery plan for reviving him. Plaintiffs contended that a medical report showed that, during the time period when Merritt was transferred into the ICU bed, the anesthesia was turned down and the muscle relaxant was fully reversed, so Merritt had his full strength as he was coming out. The post-surgery plan called for four people to hold Merritt’s arms and legs down as he woke up, but instead, only two people held his arms, allowing him to break free and flip over. As such, the anesthesiologists failed to follow their plan by allowing the gas to be turned down, allowing the muscle relaxant to be reversed and only two people were holding Merritt down.
Defense contended that the subject surgery was necessary to prevent infection. Defense denied that Merritt’s airway was obstructed or that there were any clinical signs of airway obstruction. Defense contended that the staff was caught off guard by Merritt’s unexpected and forceful reaction. Defense’s anesthesiology expert, who also successfully intubated Merritt during the incident, testified that the anesthesiologists’ actions met the standard of care.
Injury: Brain damage, hypoxia
After the surgery, Merritt’s parents were told that the breathing tube had come loose, but that Merritt was without oxygen for only three or four minutes and would be fine once the drugs wore off. The following morning, Merritt’s parents arrived to find him in a coma. They were told that he had a massive brain injury and would likely remain in a permanent vegetative state for the rest of his life.
Merritt remained hospitalized for about three months and was discharged with home health care. His parents started a course of rehabilitation, including treatment at Shepherd Center for Merritt.
Merritt, now 24, cannot walk, but has recovered some cognitive abilities. He can say simple words such as “yes” and “no,” and can use his hands to a limited degree. He also communicates through a computer and can use one finger to type out his wants. Merritt’s girlfriend was pregnant when Merritt was shot. Merritt’s 4-year-old son visits him. Merritt’s former teacher at Lovejoy High School testified about his artistic and musical talent.
Angela Merritt, a day-care teacher, left work to care for her son.
The jury cleared Song and Cooper of any liability. The jury awarded plaintiffs $17.5 million divided 50 percent to Emory and its employee Richardson, and the remaining 50 percent to Grady Memorial and its employee Nardi.
Judge: Wayne Purdom
Trial length: Two weeks
Trial deliberations: 15 days
Jury composition: Three men and nine women
Post trial: None reported
This report includes information that was gleaned from an article published in The Fulton County Daily Report. Plaintiffs and defense counsel did not contribute.
4. PRODUCT LIABILITY
Michelin mostly at fault for fatal crash caused by blown tire
Court: DeKalb County State Court
Injury type: Death
Case type: Wrongful death – motor vehicle – passenger; products liability – tires; motor vehicle – single vehicle; products liability – design defect, failure to warn
Case name: Ganga Chhetri, as Executrix of the Estate of Kharka B. Chhetri v. Michelin North America, Firestone Complete Auto Care, Hermanos Izaguirre Tire and Bhim B. Bhista, No. 11A40145-1
Date: Oct. 30, 2013
Kharka Chhetri (estate), male, 50
Attorneys: Jeffrey R. Harris of Harris Penn Lowry, Savannah; Rebecca Franklin of Franklin Law, Atlanta; Darren W. Penn of Harris Penn Lowry, Atlanta, and J. Antonio DelCampo of DelCampo Weber & Grayson, Dunwoody.
Experts: Brian Queiser, engineering, Akron, Ohio; Bruce Currie, tires, Cleveland, Ohio; and Kelly Kennett, accident reconstruction, Suwanee.
Bhim B. Bhista, Firestone Complete Auto Care, Michelin North America.
Attorneys: Robert P. Monyak and Angela M. Hinds of Peters & Monyak, Atlanta, for Michelin North America. R. Chris Harrison of Downey & Cleveland, Marietta, and Scott Patterson of The Patterson Law Firm, Marietta, for Bhim B. Bhista. Alfred B. Adams III and John Michael Hamrick of Holland & Knight, Atlanta, for Firestone Complete Auto Care
Expert: Gary Bolden, tire design, Akron, Ohio, called by Alfred B. Adams III
On the evening of March 11, 2011, plaintiff’s decedent Kharka Chhetri, 50, a plant worker, was a passenger in a van traveling on Interstate 75. All 15 people in the van, including the driver, were Perdue Farms employees and were on their way to work. The workers were all Bhutanese refugees living in Clarkston through a United Nations resettlement program.
At approximately 9 p.m., just north of Macon, the van’s left rear tire blew out, causing the van to strike the medial guardrail and overturn. The accident resulted in the death of Chhetri and one other passenger, while the remaining passengers all suffered serious injuries, including amputations.
Ganga Chhetri, decedent’s widow, as executrix of the estate of Kharka B. Chhetri, sued Michelin North America, owner of the company that manufactured the subject tire, as well as Bhim B. Bhista, the driver of the van, Firestone Complete Auto Care, which performed an oil change on the van 11 days before the accident, and Hermanos Izaguirre Tire, which sold and installed the tire.
Plaintiff sued Michelin for strict products liability, alleging defective design and failure to warn. Plaintiff sued Firestone for general negligence as a vehicle servicer, and sued Bhista for vehicular negligence. Plaintiff’s case against defendant Hermanos was resolved prior to trial, the terms of which are confidential. The 12 total lawsuits stemming from the accident were consolidated for the purpose of discovery, but were all tried separately, starting with the Chhetri case.
Plaintiff contended that the subject van’s left rear tire lost its tread and blew out due to a defective design. Plaintiff argued that Michelin was aware of the defect, but failed to warn its customers or perform any type of recall of the subject tire model. Plaintiff argued that analysis documents of tread separation, provided by Michelin, illustrated the problem and that defendant did nothing to remedy the issue.
Plaintiff claimed that Bhista was negligent in losing control of the vehicle after the tire blew out, resulting in the fatal accident. Finally, plaintiff claimed Firestone should have noticed the impending tread problem, in the form of a rapid wear spot, during its inspection of the van 11 days before the accident, and that the tire should have been pulled from service at that time.
Michelin disputed plaintiff’s claim, arguing that the subject tire had been in use for over 50,000 miles and had an improper repair of a half-inch cut. Michelin claimed it always strives for excellence in product quality and safety and that its manufacturing plant is state-of-the-art. It also argued that all of its tires were tested and passed audits. Michelin further argued that while documentation may have shown issues with specific tire components, the company was improving the design.
Firestone claimed it conducted a courtesy check on the vehicle 2,000 miles and 11 days before the accident. Firestone offered evidence that the rapid wear developed in the last 2,000 miles from a road impact. Fire­stone also offered evidence that a puncture repair on the tire was done properly many miles before Firestone saw the vehicle.
Kharka Chhetri died due to blunt force trauma. Plaintiff asked the jury for $10 million to $20 million in noneconomic damages at trial. Plaintiff relied on testimony from several family members, friends and community members.
The jury assigned 80 percent fault to Michelin and 20 percent fault to Bhista. The jury apportioned no fault to Firestone.
The jury awarded plaintiff $5 million in wrongful death damages, $20,000 to the estate for burial/funeral expenses and pain and suffering, and $11.5 million in punitive damages against Michelin. Bhista was protected from owing damages due to an entry of consent judgment prior to verdict. As such, the net recovery was $15,516,000.
Actual award: $15,516,000
Judge: Alvin T. Wong
Trial length: Seven days
Trial deliberations: Two days
Jury composition: Two male and 10 female
This report is based on information that was provided by plaintiff’s counsel and defense counsel Firestone. Counsel for remaining defendants did not respond to the reporter’s phone calls.
5. MOTOR VEHICLE
Jury awards $15M for fatal rear-impact collision
Court: Fulton County State Court
Injury types: Death, dislocated spine
Case type: Motor vehicle – rear-ender, traffic offenses; wrongful death – survival damages; motor vehicle – negligent entrustment
Case name: Kaleo Hewlett v. Richard Brown and AstraZeneca, No. 2009EV008039
Date: April 14, 2013
Kaleo Hewlett (male, 22), Susan Hewlett (female, 39), Elwynn Hewlett (male, 44)
Attorneys: Katherine L. McArthur, Laura K. Hinson and Caleb F. Walker of McArthur Law Firm, Macon
Experts: Bruce Seaman, Ph.D., economics, Atlanta, and Heath Stewart, accident investigation and reconstruction / failure analysis/product liability, Ringgold.
AstraZeneca and Richard Brown
Attorneys: Frederick N. Sager Jr., Earl W. Gunn and Lindsay McGinnis Gatling of Weinberg Wheeler Hudgins Gunn & Dial, Atlanta, for Richard Brown; M. Alan Holcomb of Weinberg Wheeler Hudgins Gunn & Dial, Atlanta, for AstraZeneca.
Kaleo Hewlett, 22, and four other individuals were traveling in a Kia sedan following a wedding ceremony at the Mormon Temple in Atlanta. Hewlett, the best man, was riding in the back seat with two of the bridesmaids. They were on their way to the wedding reception when they were involved in an accident.
Hewlett’s driver had slowed as he approached the traffic light at the intersection of Highway 247 and Green Street. The vehicle had slowed to approximately 15 mph when it was rear-ended by a Ford Five Hundred sedan driven by Richard Brown. At the time of impact, Brown was reportedly traveling at a speed of 70 mph. The impact pushed the Kia nearly 100 yards past the intersection and forced the trunk through the back seat. All three of the back-seat passengers experienced catastrophic injuries. Hewlett sustained a dislocated neck and transected spinal cord, also called a hangman’s fracture. He was pronounced dead at the scene. Brown, a sales representative for AstraZeneca, a pharmaceutical company, was operating a company-owned vehicle. He was on his way home from a gym when the accident occurred. He sustained only minor injuries.
The black box in the Ford Five Hundred recorded Brown’s speed at 70.2 mph at the time of impact and indicated that Brown had sped up just seconds before the crash. Additional investigation also revealed that Brown had received 15 prior speeding tickets. Brown was charged with vehicular homicide, serious injury by vehicle, speeding, running a red light and following too closely as a result of the accident. He later pleaded guilty and was sentenced to 90 days in jail, with 10 years of probation and a $1,000 fine.
Kaleo’s parents, Susan and Elwynn Hewlett, sued Brown and AstraZeneca for wrongful death. They alleged that Brown was reckless in the operation of the company vehicle, in that he was speeding and traveling too closely. They also asserted a negligent entrustment claim against AstraZeneca. Plaintiffs argued that AstraZeneca was negligent in permitting Brown to use the company vehicle in light of his poor driving record.
Brown admitted liability prior to trial, but he contested plaintiffs’ survival claim, as did AstraZeneca. They contended that Kaleo’s injury resulted in immediate death, with no conscious pain or suffering. AstraZeneca denied liability and asserted that Brown was off-duty and operating the vehicle for personal use at the time of the accident.
Dislocated neck and transected spinal cord (hangman’s fracture), resulting in death. Kaleo Hewlett was pronounced dead at the scene.
Defendants disputed the extent of damages and argued that Hewlett did not experience pain and suffering because death was immediate.
The jury returned a $15,263,000 verdict for the plaintiffs and noted that the actions of both Brown and AstraZeneca constituted conscious indifference to consequences, which warranted punitive damages. In lieu of a separate trial on the issue of punitive damages, the defendants stipulated to the statutory cap of $250,000, as there was no finding of specific intent to cause harm. The jury found for defendants on plaintiffs’ claim for attorney’s fees and expenses.
$13,000 – Wrongful death: funeral burial expense
$250,000 – Wrongful death: punitive exemplary damages
$10 million – Wrongful death: full value of Hewlett’s life
$5 million – Wrongful death: pain and suffering
Actual award: $15,263,000
Offer: $4,500,000 (after two failed mediations); $10,000,000 (the day before trial)
Trial length: Five days
Trial deliberations: 4.5 hours
Jury composition: Six men and six women; nine Caucasian and three African-Americans.
Post-trial: Defense counselor filed a post-trial motion for a new trial on damages and/or a judicial reduction of the $5 million survival action award.
This report is based on an article that was published by the Fulton County Daily Report, along with information from defense counsel.
6. MEDICAL MALPRACTICE
Hospital liable to newborn diagnosed with brain damage
Court: Gwinnett County State Court
Injury types: Cerebral palsy, seizure (grand mal seizure), ischemia, pulmonary/respiratory-hypoxia
Case type: Medical malpractice – childbirth, birth injury, cerebral palsy, failure to monitor
Case name: Melissa Dempsey f/k/a Melissa Watson, Individually and as Parent and Next Friend of Kailey Watson, a Minor v. Jonne Sveum, Deloris Kanhai, R.N., Kediga Khalid, R.N. and Gwinnett Health System, No. 09C20372-4
Date: Jan. 25, 2013
Kailey Watson (female, 1 minute), Melissa Dempsey (female, 30 years)
Attorneys: Hunter T. Hillin of Hillin Law, Austin, Texas, and Nelson O. Tyrone III of Tyrone Law Firm, Atlanta
Kediga Khalid, R.N., Deloris Kanhai, R.N., and Gwinnett Health System
Attorneys: John E. Hall Jr. and Heather Saum Ware for Hall Booth Smith & Slover, Atlanta
On Aug. 17, 2002, plaintiff Melissa Dempsey f/k/a Melissa Watson, a homemaker, presented to Gwinnett Health System, d/b/a Gwinnett Medical Center in Lawrenceville, for childbirth. Following the birth, her daughter, Kailey Watson, was diagnosed with severe neurological injuries, including cerebral palsy.
Dempsey, individually and as parent and next friend of Kailey Watson, a minor, sued Gwinnett Health and two of its nurses, Deloris Kanhai and Kediga Khalid, as well as a nurse midwife, Jonne Sveum, for medical malpractice. Sveum settled with plaintiffs for an undisclosed amount and the case proceeded to trial against the remaining defendants.
Plaintiffs alleged that the fetal heart monitoring strip showed nonreassuring signs during labor and delivery and that the nurses failed to properly recognize that the fetus was in distress. As a result, plaintiffs alleged that the fetus suffered an hypoxic ischemic injury due to oxygen deprivation, which resulted in the newborn’s significant neurological injuries. Plaintiffs also alleged that Gwinnett Health was liable under the theory of respondeat superior.
Defendants contended that they complied with the standard of care. They also asserted that the child’s injuries were caused by something other than hypoxic ischemia, such as an in utero infection.
The infant was born with a low APGAR score, had immediate seizure activity and was diagnosed with cerebral palsy. She has ongoing grand mal seizures and is severely developmentally delayed.
The jury awarded $13,813,765 to Melissa Dempsey as parent and next friend of Kailey, plus an award of $90,000 to Melissa Dempsey individually. Both awards were against Gwinnett Health System. Defendants Kanhai and Khalid received defense verdicts.
Judge: Joseph C. Iannazzone
This report is based on information that was provided by plaintiffs’ counsel. Defense counsel did not respond to a request for comment.
7. PRODUCT LIABILITY
Defective boat exhaust system led to man’s death
Court: DeKalb County State Court
Injury types: Death, carbon monoxide poisoning
Case type: Wrongful death; recreation – boating; products liability – design defect, failure to warn, manufacturing defect; worker/workplace negligence – negligent repair
Case name: Sheryl Simpson Jones v. Genmar Yacht Group d/b/a Carver Yacht and RP Mobile Marine, No. 10A2967
Date: Sept. 30, 2013
Sheryl Simpson Jones (female), Estate of Chris Jones (male, 45)
Attorneys: Terry D. Jackson of Terry Jackson Law, Atlanta, and Shelley Dreyer of Hershewe Law Firm, Joplin, Mo.
RP Mobile Marine, Genmar Yacht Group
Attorney: Kevin T. Shires of Lueder, Larkin & Hunter, Atlanta
Expert: Robert Taylor, boat/ship design, Novi, Mich.
On July 1, 2008, Chris Jones, 45, the owner of a catering company, brought his 42-foot houseboat to JOA Marine for repairs to his port engine. Jones, who planned to stay on the boat while awaiting repairs the following day, was told by JOA personnel that there was no shore power at the repair slip. As a result, Jones ran his on-board generator to power the boat’s electrical appliances while tied to the dock.
Jones was found dead the next morning from carbon monoxide that had accumulated on the boat due to the generator sharing a common exhaust system with the port engine, which had been removed for repairs and vented into the boat’s living spaces. According to plaintiff’s counsel, this common exhaust system design for the port engine and generator was contrary to established American Boat & Yacht Council (ABYC) standards. The boat in question, a Carver 42, was manufactured by Carver Yacht. This particular boat model was manufactured prior to 1988 and is now obsolete.
Jones’ widow, Sheryl Simpson Jones, sued Genmar Yacht Group, which now owns Carver Yacht, for wrongful death, pain and suffering, and punitive damages. She also sued RP Mobile Marine of Gainesville, which was the employer of the mechanic who disconnected the exhaust manifolds to the port engine. Simpson Jones and RP Mobile Marine settled prior to trial for RP’s policy limits of $1 million. The case proceeded to trial against Genmar/Carver only.
Plaintiff’s counsel alleged that the design of the boat was defective in that the port engine and the generator shared a common exhaust system. At trial, they noted that ABYC standards required separate exhaust systems for each engine on the boat, including an outboard terminus for each engine installation. In addition, they argued that there were no warnings on the boat regarding this common exhaust system design, nor were any warnings issued to the marine repair industry or boat owners by Genmar/Carver prior to the incident.
Defense counsel contended that Jones had several alcoholic drinks before going to bed, which possibly contributed to his death. Jones’ post-mortem blood alcohol content (BAC) was .277. Defense counsel argued that the danger of running a generator while sleeping on a boat is self-obvious and/or should have been known to Jones and, while the boat design may have not met ABYC design recommendations, it was not defective. A defense engineering expert testified that the engines were not defective, although the engines failed to meet ABYC standards in that the two engines were not separately vented to the outside.
Plaintiff’s counsel responded that the danger from the common exhaust system was not obvious to either Jones or the repairing mechanic; the design was contrary to ABYC standards that Genmar/Carver said it had met; and, since the boat was Jones’ home, consuming alcohol was no different than having a few drinks at a conventional home and then being killed when the gas furnace malfunctions while you sleep.
Jones died of carbon monoxide exposure, with a carboxyhemoglobin level of approximately 66 to 70 percent saturation determined post-mortem.
Jones ran a catering business that grossed on average $600,000 in the years preceding his death. He was married to a physician and had two young boys, ages 8 and 13, at the time of death. In addition to wrongful death damages, Jones’ widow sought damages for the loss of use of the boat and funeral and burial expenses.
The jury found for Simpson Jones. It determined that her damages totaled $13,610,373, including approximately $15,000 for funeral expenses, loss of use of the boat, and other expenses, with the bulk of the award for the wrongful death claim. The court then reduced the verdict by 25 percent to $10,207,750.38, after the jury apportioned some fault for the incident to Jones.
Estate of Chris Jones
$14,908 – Wrongful death: funeral burial expense
$30,000 – Wrongful death: loss of use of boat
$13,565,000 – Wrongful death: wrongful death
$465 – Wrongful death: past medical costs
Actual award: $10,207,750.38
Judge: Janis C. Gordon
Demand: $5 million
Trial length: Eight days
Trial deliberations: Six hours
Jury vote: 12-0
Jury composition: Six males and six females
The estate’s counsel was expected to seek post-judgment attorney’s fees and costs due to the pre-trial rejection of an offer of judgment as provided by state law, and pre-judgment interest. Defense counsel was considering an appeal.
This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.
8. MOTOR VEHICLE
Auto passenger impaled by falling tree limb awarded $12 million
Court: Chatham County State Court
Injury types: Crush injury to leg; blunt force trauma to the head; brain damage; traumatic brain injury; crush injury to pelvis; leg amputation
Case type: Motor vehicle – passenger; government – municipalities; motor vehicle – dangerous condition; government – state and local government
Case name: Shanta Greene, Louis Anderson and Xavier Anderson v. The Mayor and Aldermen of the City of Savannah, No. STCV1200532
Date: Aug. 22, 2013
Shanta Greene (female, 28), Louis Anderson (male), Xavier Anderson (male, 6)
Attorney: Howard E. Spiva, Spiva Law Group, Savannah, Cecil Clay Davis, Spiva Law Group, Savannah
City of Savannah
Attorney: Malcolm MacKenzie III, Savannah
On July 2, 2010, plaintiff Shanta Greene, 28, was a passenger in a vehicle driven by her cousin, plaintiff Louis Anderson, on Bee Road in Savannah. Her nephew, plaintiff Xavier Anderson, 6, was in the back seat of the pickup truck. As Anderson approached 42nd Street, an oak tree limb fell from approximately 30 feet above the roadway. The limb crashed through the roof of the truck and impaled Greene in the passenger seat. Greene claimed crushing pelvic and leg injuries, internal injuries and a traumatic head injury as a result of the accident. Louis and Xavier Anderson claimed minor injuries.
Greene, Louis Anderson and Xavier Anderson sued the mayor and aldermen of the city of Savannah on the basis that the city failed to properly maintain the tree to prevent injury, despite prior knowledge of rot and damage to the tree. They claimed the Savannah Park and Tree Department knew the tree was a potential danger based on a 2007 incident involving a dropped limb from the same tree.
In support of these claims, plaintiffs relied on city records showing that the city had been called to deal with rot and other damage to the tree prior to this incident. As a result, plaintiffs’ counsel argued that the city’s defense of absolute immunity was nullified.
The city maintained that it was immune from liability because the tree limb fell due to an “internal defect,” of which it had no knowledge, coupled with high winds. Defense counsel argued there was no way the city could have anticipated the accident and that the tree had been inspected multiple times.
A supervisor with the Park and Tree Department testified that he viewed the tree frequently and had never observed any signs of rot or damage that would have caused him to request a risk assessment. Several other city employees, tree experts and arborists also testified that the tree had been inspected six weeks prior to the accident, at which time there was no evidence of any defect.
Greene was transported from the scene by ambulance to a nearby hospital. She was hospitalized for 75 days due to crushing injuries of the pelvis and left leg, internal injuries and a traumatic head injury. Due to the leg injuries, Greene subsequently required an above-the-knee amputation of the left leg. She also claimed brain damage as a result of the head injury. Greene underwent a total of 35 surgical procedures and claimed the need for at least five additional surgeries in the future.
Greene claimed $948,000 in past medical expenses, $5.7 million for past and future economic loss and approximately $15 million for noneconomic damages.
Louis and Xavier Anderson sustained lesser injuries, for which they sought emergency room treatment. They each sought actual and compensatory damages.
The jury found for the plaintiffs on the issue of liability and awarded $12 million to Greene, $20,000 to Louis Anderson and $10,000 to Xavier Anderson.
Judge: Gregory Sapp
Trial length: Nine days
Trial deliberations: One day
This report is based on an article published by the Savannah Morning News. The attorneys did not respond to requests for comment.
9. PRODUCT LIABILITY
Control software at lumber mill caused maintenance worker’s fatal injuries
Court: Jefferson County Superior Court
Injury types: Head, crush injury, death
Case type: Wrongful death; products liability – design defect, failure to warn, industrial machinery
Case name: Andrea Eslavan Hernandez as representative of the Estate of Florentino Hernandez v. Hi-Tech Engineering, No. 11-cv-622
Date: March 21, 2013
Andrea Eslavan Hernandez (female), Estate of Florentino Hernandez (male, 53)
Attorneys: Cale H. Conley and Rance Partin of Conley Griggs, Atlanta, and Chad K. Adams, Decatur
Expert: Charles Benedict, Ph.D., P.E., accident reconstruction; Tallahassee, Fla.
Baxley Equipment, Hi-Tech Engineering, Timber Machine Technologies, Bonner’s Safety Service
Attorneys: Morton Forbes and Scot V. Pool of Forbes, Foster & Pool, Savannah, and Franklin Edenfield, Swainsboro
Experts: David Rankin, employee safety, Charlotte, N.C., and Frank Johnson, engineering, Tyler, Texas
Insurer: AIG of Canada
On Dec. 29, 2006, plaintiff’s decedent Florentino Hernandez, 53, was employed as a maintenance worker at a Wadley, Ga., lumber mill. The mill had a number of units of wood processing equipment controlled through a central unit that used software developed by Hi-Tech Engineering, a Canadian corporation. While performing maintenance on an inactive unit, Hernandez was struck by a piece of lumber being fed into an adjacent unit. The impact knocked him into a set of active spiked rollers. Hernandez sustained fatal injuries.
Andrea Eslavan Hernandez, on behalf of the estate of her husband, sued Hi-Tech Engineering, Timber Machine Technologies, Bonner’s Safety Service and Baxley Equipment for wrongful death. Timber Machine, Bonner’s and Baxley, all of which manufactured or marketed the equipment involved, settled prior to trial for confidential amounts.
The estate’s counsel claimed that Hernandez was working on an unpowered machine when another employee activated another machine in a different part of the plant. They claimed that, unknown to the other employee, the control he used could, under some circumstances, also activate the machine Hernandez was standing next to. They claimed that the activation took all of the employees present by surprise and resulted in Hernandez’s death.
The estate’s counsel claimed that the employees were following the operation instructions that Hi-Tech representatives had provided them, and that those instructions only called for the lockdown of machines being worked on. They argued that Hi-Tech provided no written instructions or manual for the software. The estate’s failure analysis expert testified that the control software was unreasonably unsafe.
Hi-Tech denied product liability. Defense counsel argued that the sawmill management and employees were the proximate cause of Hernandez’s death for failing to lock down the adjacent unit. The defense’s failure analysis expert testified that this was in violation of Occupational Health and Safety Administration regulations. The defense’s timber industry expert testified that the unsafe design of the machinery was also a proximate cause of Hernandez’s death, arguing that the machines lacked manual lockdown mechanisms.
Hernandez sustained massive crush injuries to his head and was declared dead on the scene. The estate was seeking an unspecified amount of damages.
The jury found Hi-Tech 100 percent liable for the accident. It determined that the estate’s damages totaled $10 million.
Judge: Robert S. Reeves
Trial length: Four days
Trial deliberations: 35 minutes
This report is based on information that was provided by plaintiffs and defense counsel.
10. MEDICAL MALPRACTICE
Suit claimed delayed diagnosis led to infant’s brain damage
Court: Fulton County State Court
Injury types: Brain damage, urological-incontinence
Case type: Medical malpractice – failure to test, delayed diagnosis, negligent treatment
Case name: Trevor Cole, by and through his Guardian ad Litem Nicholas C. Moraitakis, v. Gregory Sysyn, M.D., and Neonatology Associates of Atlanta, No. 12-VS-195119
Date: June 13, 2013
Trevor Cole (male, 1 minute)
Attorneys: James M. Poe of Atlanta and Charles P. Hehmeyer of Raynes McCarty, Philadelphia
Gregory Sysyn, M.D., and Neonatology Associates of Atlanta
Attorneys: Russell B. Davis of Downey & Cleveland, Marietta, and John E. Hall Jr. of Hall Booth Smith, Atlanta
Insurer: Hudson Specialty Insurance Co.
On July 4, 2009, plaintiff Trevor Cole and his twin sister were born to parents Annette and Jason Cole at Gwinnett Medical Center in Lawrenceville. Mrs. Cole and her two newborns were discharged the following day. The parents claimed they noticed their newborn son seemed lethargic and less hungry than his sister, and took him to a pediatrician on July 8.
On July 11, the Coles’ growing concern over their son’s lethargy and low body temperature caused them to take him back to the hospital where he was born. Trevor was taken by helicopter to Children’s Healthcare of Atlanta, where he was placed under the care of Neonatology Associates of Atlanta. Two partners cared for him through the weekend. On Monday, July 14, Trevor went under the care of Gregory Sysyn, M.D.
On Monday afternoon, Dr. Sysyn tested Trevor for infection, congenital hypothyroidism, left-sided heart problems, and GI obstruction, which had all been worked up and eliminated. An MRI on July 16, however, showed severe brain swelling.
On July 18, Trevor was diagnosed with maple syrup urine disease, a metabolic disorder that prevents the body from digesting some forms of protein and processing certain amino acids. As a result of the disease, Trevor developed a build-up of leucine—a neurotoxic amino acid—in the brain. He now suffers from permanent, severe brain damage.
Trevor, by and through his Guardian ad Litem Nicholas C. Moraitakis, sued Dr. Sysyn and Neonatology Associates of Atlanta for medical malpractice. Plaintiff alleged that defendants failed to order appropriate testing, which resulted in a delayed diagnosis and further injury to the newborn.
Plaintiff’s parents had originally filed suit in DeKalb County, naming several additional medicine and health care professionals who had also treated Trevor. After plaintiffs settled confidentially with the other parties, the case was transferred to Fulton County under the requirements of Georgia’s venue laws. Dr. Sysyn and Neonatology Associates then refused an Offer of Judgment for $2 million. The parents subsequently dismissed their portion of the action without prejudice.
Plaintiff’s counsel contended that defendants failed to timely diagnose Trevor’s maple syrup urine disease when he was admitted to Children’s Healthcare of Atlanta. Plaintiff claimed that in the face of a continued deterioration in tone—when all other reasonable explanations had been ruled out, except for metabolic disorder or a central neurological problem—Dr. Sysyn failed to consult with metabolic and neurology experts in a timely fashion and failed to order the appropriate tests.
Plaintiff’s counsel further claimed that after an MRI on July 16 showed Trevor had life-threatening brain swelling, Dr. Sysyn permitted Trevor to continue to receive IV protein, before a metabolic disorder had been ruled out, which caused Trevor’s condition to deteriorate severely to the point of becoming obtunded. It was plaintiff’s contention that, under the circumstances, the delay in diagnosis caused Trevor’s severe, permanent brain injury, and that a timely diagnosis and proper management would have prevented a serious brain injury.
Defendants disputed plaintiff’s allegations. They contended that there was no deviation from the standard of care. Defendants argued that Trevor’s ultimate brain damage was due to the negligence of other medicine and health care professionals who had cared for Trevor after his diagnosis was made.
Plaintiff claimed that Trevor Cole suffered profound, permanent brain damage. Trevor is on a feeding tube, remains incontinent, does not possess a vocabulary, and is impacted in all aspects of everyday life. Plaintiff claimed $350,000 in past medical costs, and further sought a future life care plan valued at roughly $12 million, as well as damages for pain and suffering.
Defendants argued that other medicine and health care professionals who treated Trevor following his diagnosis were responsible for his brain damage and related damages. Defendants further argued that Trevor had a lowered life expectancy, which would weigh on his claimed future life care plan.
The jury found defendants 40 percent liable, while the other 60 percent was apportioned to non-party medicine and health care professionals. Plaintiff was awarded $7.5 million in total damages, reduced by 60 percent to $3 million.
Plaintiff’s counsel filed motions for two amendments to the court’s final judgment, both of which were granted. As a result, plaintiff was awarded $107,534 in pre-judgment interest, $1,243,013 in attorneys’ fees, and $128,497 in costs, for a total recovery of $4,479,045.
Actual award: $4,479,045
Judge: Susan E. Edlein
Trial length: Two weeks
Trial deliberations: Two days
Post trial: Defendants’ motion for new trial was denied. Defendants were expected to file an appeal.
This report is based on information that was provided by plaintiff’s counsel. Defense counsel declined to contribute.
11. MEDICAL MALPRACTICE
Post-op complications led to permanent disability
Court: Muscogee County Superior Court
Injury types: Contracture, leg; loss of consortium; epidermis-bedsore/decubitus ulcer/pressure sore; gastrointestinal/digestive-bowel/colon/intestine; perforation
Case type: Medical malpractice – surgical error, delayed diagnosis, delayed treatment, negligent treatment
Case name: Thomas Jackson and Linda Jackson v. Kenneth Goldman, M.D., Surgical Associates of Columbus, The Medical Center and Vincent Nicholais, M.D., No. SU03CV-4116
Date: Nov. 14, 2013
Linda Jackson (female), Thomas Jackson (male, 57)
Attorney: Benjamin A. Land of Buchanan & Land, Columbus
Experts: James Shaffer, M.D., pulmonology, Melbourne, Fla.; Preston Fogle, M.D., surgery, Thomaston, Ga.
The Medical Center; Kenneth Goldman, M.D.; Vincent Nicholais, M.D.; Surgical Associates of Columbus
Attorneys: Robert C. Martin Jr. of Hatcher Stubbs Land Hollis & Rothschild, Columbus, for Kenneth Goldman, M.D., and Surgical Associates of Columbus.
Paul D. Ivey Jr. of Hall, Booth, Smith PC, Charleston, S.C., for The Medical Center and Vincent Nicholais, M.D.
On Jan. 17, 2002, plaintiff Thomas Jackson, 57, underwent hernia repair surgery at defendant The Medical Center in Columbus. Defendant Kenneth Goldman, M.D., performed the four-hour procedure. Within hours of the surgery, Jackson began to complain of severe abdominal pain. Throughout the night, his condition continued to deteriorate. By morning, Jackson had developed a fever and rapid pulse. He was complaining of unbearable pain and it was noted that both his urinary output and white blood cell count had dropped. The second post-operative day, Jackson went into organ failure and was placed on a ventilator.
On Jan. 21, 2002, Goldman performed a needle aspiration, which confirmed an intestinal infection due to a perforation. Jackson was rushed into surgery to repair the damage. However, the infection had spread and Jackson was in critical condition. Ultimately, Jackson required three additional surgeries. He remained bedridden in the ICU for six months, during which he developed severe bedsores on his back and legs. The muscles affected by the bedsores contracted, resulting in his lower extremities being permanently bent. Jackson underwent 2.5 years of physical therapy, but was unable to regain full use of his legs. He requires a wheelchair for ambulation.
Jackson and his wife, plaintiff Linda Jackson, sued Goldman and his employer, Surgical Associates of Columbus, The Medical Center and the head of the ICU, Vincent Nicholais, M.D., for medical malpractice.
Plaintiffs alleged that Goldman was negligent in failing to properly address the perforated intestine during the initial procedure and in failing to timely diagnose and treat the perforation. Plaintiffs asserted that this resulted in the severe infection and Thomas Jackson’s permanent disability.
All defendants denied liability. Although Goldman admitted he had penetrated the outer layer of Jackson’s intestine during the hernia repair, he contended that the care provided was reasonable and appropriate. Goldman further maintained that he did not believe the minor perforation was deep enough to have caused a leak.
Plaintiffs alleged that multiple surgeries were needed to address complications caused by an intestinal perforation, which led to Thomas Jackson being bedridden for six months, the development of severe bedsores and the loss of muscle strength in the legs.
After being discharged from the hospital, Thomas Jackson required continuous care and assistance with most daily living activities. He was unable to return to his job at the mill where he had worked for 32 years and claimed an inability to enjoy his previous quality of life. Jackson is no longer able to garden or build metal structures as he did before the operation and requires the use of a powered wheelchair or a four-wheeler to get around the 12 acres where he and his wife reside.
Linda Jackson, Thomas’ wife, asserted a claim for loss of consortium. She also claimed she incurred a loss of income because she was required to give up her career so that she could provide the care her husband required.
The Medical Center entered into a confidential settlement agreement with the Jacksons. The remaining claims proceeded to trial.
The jury found that defendant Goldman was negligent and awarded $6.7 million to the plaintiffs, including $5.2 million to Thomas Jackson and $1.5 million to Linda Jackson against Goldman and Surgical Associates.
A defense verdict was entered for defendant Nicholais.
Thomas Jackson: $5,200,000
Judge: Arthur L. Smith III
This report is based on information that was provided by plaintiff’s counsel and articles published by the Ledger-Enquirer in Columbus and The Clinical Advisor. Defense counsel did not respond to a request for comment.
Judge awards $5.3M to Iraqi currency traders
Court: Fulton County State Court
Case type: Fraud, negligence
Case name: Sterling Currency Group v. Grossi Consulting, No. 2011CV197363
Date: May 4, 2013
Sterling Currency Group, Ty Rhame, James Shaw
Attorneys: David Lilenfeld, Lilenfeld, P.C.; L. Joseph Loveland Jr. and Michael Raeber of King & Spalding, Atlanta
Grossi Consulting, Stefano Grossi, Fereidoun Khalilian
Attorney: Jaymen Chavda of the Chugh Firm, Atlanta
Plaintiff Sterling Currency Group, a limited liability corporation engaged in the business of importing and selling Iraqi dinars on the Internet and through other avenues, started by Iraqi War veteran Ty Rhames and investment banker James Shaw, hired Defendant Grossi Consulting, a company that specialized in Web-based marketing strategies, in an effort to create an Internet-based sales platform. By late 2010, the plaintiff claimed that Sterling’s business was booming and Grossi was unable to meet the increased demands, with hundreds of customer calls going unanswered and multiple website crashes.
On Feb. 26, 2011, after Sterling attempted to terminate Grossi’s engagement, according to the plaintiff, Grossi and Khalilian met face-to-face with Rhame, wherein Khalilian threatened to take over the Web business or destroy it if Sterling did not immediately pay Grossi approximately $1.2 million and personally threatened Rhame and Shaw and their families. The next day, Sterling claims that it paid Grossi approximately $1.7M under duress.
The defense alleged that Sterling launched an “unlawful effort to push Grossi Consulting out of the online business.” The defense further claimed that an agreement was made at the face-to-face meeting, wherein Rhame agreed to make a partial payment for amounts owed.
On March 4, 2011, Sterling sued Grossi seeking an injunction and temporary restraining order for Grossi not to interfere with Sterling’s website, the dinarbanker.com domain, telephone and email accounts and to preserve any records relating to Sterling. The trial court granted the injunction the same day, and following a hearing, Fulton County Superior Court Judge Doris Downs left it in place, but ordered that Sterling continue to pay Grossi under their original agreement.
Grossi filed a counterclaim against Rhame and Shaw, including counts for fraud and breach of contract.
After the parties disputed over a compensation scheme by which Sterling paid Grossi for Web-based marketing strategies, plaintiffs claimed that defendants threatened them and their families and extorted money to prevent the defendants “from carrying out their threats to hijack the business.” Sterling also filed a motion for sanctions, arguing that Grossi perjured himself regarding his business relationship with Khalilian as well as his ability to locate Khalilian and that Grossi submitted falsified invoices to the court.
Downs granted Sterling’s motion for sanctions, striking Grossi’s answer and counterclaim after finding that “the record as a whole reflects that these two defendants participated in a concerted effort to deceive and mislead Sterling’s discovery attempts as to important issues presented by this lawsuit.”
Following a one-day trial on damages only, the jury awarded more than $1.7M to Sterling on the only surviving claims of fraud and negligence.
Sterling Currency Group
$4,257,501 against Grossi and his company including $2,882,500 in attorneys’ fees
$1,050,00 against Khalilian, including $700,00 in punitive damages
Judge: Doris Downs
This report is based on information obtained from an article published by the Fulton County Daily Report.
13. WRONGFUL DEATH
Suit claimed lot owner’s failure to warn of danger led to man’s death
Court: DeKalb County State Court
Injury types: Death, gunshot wound
Case type: Wrongful death – premises liability – failure to warn
Case name: Elizabeth Whatley-Fenty v. Brandon Marshall and Investga.com, No. 13A4583
Date: Nov. 13, 2013
Travis Fenty (male, 44), Elizabeth Whatley-Fenty (female)
Attorney: Steven I. Goldman of The Goldman Firm, Atlanta
Attorney(s): None reported
On Feb. 24, 2011, plaintiff’s decedent Travis Fenty, 44, a tow truck driver, was shot and killed while trying to remove junk cars from a lot at 1020 Donald Lee Hollowell Parkway in Atlanta. Fenty was shot by the lot’s previous owner, Philmore Reed, 74, who had refused to vacate the property after it had been foreclosed upon and sold to defendant Brandon Marshall and Marshall’s investment company, defendant Investga.com.
Three weeks before the shooting, Marshall had attempted to remove the cars with the assistance of another towing company, but abandoned his efforts when Reed became volatile and threatened to shoot anyone who came onto his property. Marshall then hired Fenty’s employer, Quickdrop Impounding, Towing & Recovery, to enter the lot and remove the junk cars. Fenty and a second man went to the address provided by Marshall. As they prepared to tow the first vehicle, Reed opened fire from a nearby rooftop. Fenty was struck in the chest and died.
Elizabeth Whatley-Fenty, Travis Fenty’s widow, sued Marshall and Investga.com for wrongful death. Plaintiff alleged that Marshall and Investga.com were negligent in failing to provide information to Fenty or Fenty’s employer about the previous attempts or threats made by Reed.
Defendants did not respond to the lawsuit and a default judgment was entered against them.
Travis Fenty died from a gunshot wound to the chest. His widow sought wrongful death damages from the defendants.
After the plaintiff was granted a default judgment against both defendants, a damages hearing was held. The judge awarded $4.8 million to the plaintiff.
Elizabeth Whatley-Fenty: $4,800,000
Judge: Janis C. Gordon
This report is based on information obtained from court records and articles published by the Fulton County Daily Report and Fox News. The attorneys did not respond to requests for comment.
14. PRODUCT LIABILITY
Defective seat belt caused passenger’s death
Court: Gwinnett County State Court
Injury types: Death, thigh and spleen lacerations
Case type: Motor vehicle – rollover, seat belt; products liability – automobiles; wrongful death – survival damages; products liability – design defect
Case name: William Bruner, Personal Representative of the Estate of Penney Bruner v. Key Safety Systems and Amanda Bruner, No. 09-C-16647-S5
Date: Nov. 25, 2013
Estate of Penney Bruner (female, 47)
Attorneys: Christopher Dean Glover and Kendall C. Dunson of Beasley, Allen, Crow, Methvin, Portis & Miles, Montgomery, Ala., and Melody A. Glouton of Webb, Tanner, Powell, Mertz & Wilson, Lawrenceville
Amanda Bruner, Key Safety Systems
Attorneys: Michael P. Cooney of Dykema Gossett, Detroit, and Ashley W. Broach and C. Bradford Marsh of Swift, Currie, McGhee & Hiers, Atlanta, for Key Safety Systems. Craig C. Aver of Cowsert & Avery, Athens, for Amanda Bruner.
On Sept. 23, 2007, plaintiff’s decedent Penney Bruner, 47, a corporate accounts manager, was a passenger in the front seat of a 2003 Jeep Wrangler driven by her daughter, Amanda Bruner. According to the estate’s counsel, eyewitnesses saw that Penney was wearing her seat belt, which was manufactured and supplied by Key Safety Systems. The Bruners were traveling with the normal flow of traffic when their vehicle drifted off the left-hand side of the roadway and into the median. Amanda steered the Wrangler back to the right and then back to the left, when the vehicle began a counter-clockwise yaw. The Wrangler entered the median and rolled over five and a quarter times, ultimately coming to rest on its side in the oncoming lanes of traffic. Penney was ejected from the vehicle and thrown onto the roadway. Her injuries included lacerations to her upper thighs and spleen. She died later that day.
William Bruner, on behalf of the estate of his wife, sued Key Safety Systems, alleging products liability. The estate claimed that Key Safety breached its duty to exercise reasonable care to design, test, market, distribute, integrate into the vehicle and sell seat belts, the failure to do so being the cause of Penney’s death.
The estate’s counsel claimed that the design of the Wrangler’s seat belt system for the front passenger’s seat was defective and unreasonably dangerous because it came unlocked during the rollover and allowed excess webbing into the system, which moved into the lap belt and allowed Penney to be ejected from the vehicle. Counsel claimed that the safety defect would have been prevented if Key Safety Systems had installed a web sensor on the seat-belt retractor. A web sensor is a redundant safety feature that assures that the belt stays locked. The estate’s counsel contended that virtually every vehicle in the 2003 model year used a web-sensor seat belt. Amanda’s seat belt had a web sensor, which they claimed was why she survived the rollover with minor injuries. According to counsel, evidence revealed that Amanda’s safety belt performed as expected without introducing excess webbing slack into the belt system, nor was there an excessive transfer of webbing into the lap belt. They contended that Amanda’s belt stayed tight and prevented her ejection.
The estate’s counsel contended that Penney’s injuries were in the area where seat belt loading would have occurred. They contended that the lacerations to her upper thighs were caused by the belt cutting into her legs as she was ejected. They contended that Penney also had a Grade 3 spleen laceration, which would have been in the area of the belt webbing.
Key Safety Systems contended that Amanda was at fault for causing the accident when she overcorrected, twice, causing the Jeep Wrangler to rotate in a clockwise direction. Key Safety also argued that it was Chrysler, the manufacturer of the 2003 Jeep Wrangler, which determined the requirements for the seat-belt component, including the type of buckle, retractor and latch plate it would use, the belt geometry, the anchor points of the system and the amount of webbing. The company argued that the components it supplied met or exceeded all of Chrysler’s specifications and test requirements, and they also met the applicable federal motor vehicle safety standards.
Key Safety claimed seat belts could not always restrain occupants in severe crashes like this one. It maintained that there was nothing unsafe or defective about the seat-belt components it supplied to Chrysler. Further, Key Safety contended that the estate’s counsel failed to identify any particular warning which the company failed to provide, or evidence that any failure to warn was the proximate cause of Penney’s death.
Amanda Bruner contended that she had no recollection of the sequence of events leading up to the accident or the accident itself.
The estate’s counsel contended that Penney Bruner was conscious and talking immediately after the accident, and sustained a period of conscious pain and suffering before her death. Bruner was survived by her spouse of 25 years (the accident occurred two days before their 25th wedding anniversary) and two children.
Key Systems denied that the Wrangler’s seat-belt design was a proximate cause of Bruner’s death.
The jury found that Key Safety Systems was 80 percent liable for the accident and Amanda Bruner was 20 percent liable. It determined that the estate’s damages totaled $4,639,416.
Estate of Penney Bruner
$3,500,000 – Personal injury: conscious pain and suffering
$1,120,761 – Personal injury: value of life
$18,655 – Personal injury: medical/funeral expenses
Judge: Pamela D. South
Trial length: Nine days
Trial deliberations: One day
Jury vote: 12-0
This report is based on information provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.
15. MOTOR VEHICLE
Infant born prematurely due to auto accident died a month later
Court: Bryan County State Court
Case type: Motor vehicle – wrongful death
Case name: Erica McKeel, Army Capt. Daniel McKeel, et al. v. Cuong Nguyen and Limelight Bar & Grill, No. 2012-SV-055
Date: April 3, 2013
Erica McKeel, Army Capt. Daniel McKeel
Attorney: Brent J. Savage, Savannah
Expert: Linda Sachs, M.D., pediatrics, Savannah
Cuong Nguyen and Limelight Bar & Grill
Attorneys: Daniel C. Cohen and Ashlee H. Vaught of Savannah
Insurers: State Farm (Nguyen), Auto-Owners (Limelight)
A Bryan County State Court jury awarded $3,083,000 to a mother and father who lost their newborn son a month following a car accident. The boy had been born prematurely due to injuries sustained by his mother in the accident.
Plaintiff Erica McKeel was operating her vehicle west on Ga. Route 144 in Richmond Hill. Defendant Cuong Nguyen, who was driving a 2006 Nissan 350Z, made a left turn in front of Erica’s oncoming Tahoe, resulting in a collision. Both vehicles were totaled. Nguyen was unconscious following the crash and was transported from the scene by ambulance. Erica, who was seven months pregnant, was struck in the abdominal area by the airbag.
Due to concern for the pregnancy, Erica was admitted to the hospital for bed rest and observation. Her amniotic sac broke the following day and she suffered a placental abruption. A C-section was performed approximately 12 days after the accident, at which time Murphy Foster McKeel was born. Murphy was not breathing and was unresponsive, with lacerations on his face. It took 18 minutes to establish breath sounds and a stable heart rate, during which time his brain was deprived of oxygen. He suffered severe brain damage. Murphy remained in the ICU for a month until his death on Feb. 14, 2012.
Prior to the filing of a lawsuit, the Nguyens’ insurance carrier, State Farm, tendered its policy limits of $100,000 to plaintiffs on multiple occasions, which included a limited liability release. Plaintiffs rejected the offer in pursuit of Limelight’s $2,000,000 policy through Auto-Owners Insurance Co. Auto-Owners denied coverage prior to and during the pendency of the lawsuit on behalf of its insured.
Plaintiffs filed two separate claims. The first claim was for negligence and wrongful death, and was against Nguyen. It also involved a negligent entrustment claim against Nguyen’s brother, who owned the car Nguyen was driving at the time of the accident. The second suit was filed against Defendant Limelight Bar & Grill, a company owned by the Nguyen brothers. It alleged that Cuong Nguyen, who was on his way to pick up a food service license for the restaurant, was operating the vehicle for business purposes at the time of the accident. The cases were consolidated for trial.
Defendants submitted a motion for summary judgment seeking the dismissal of the negligent entrustment claim, as well as the claims against the restaurant. The judge granted the motion as to the negligent entrustment claim, but refused to dismiss the claim against Limelight.
At trial, defendants contended that the restaurant was not open for business at the time of the accident and, therefore, should not be held liable. The issue of damages was also disputed.
Plaintiffs’ decedent was a 1-month-old male.
Abdominal injuries to decedent’s mother, resulting in a placental abruption which necessitated an emergency C-section. Decedent had suffered brain damage and died a month later.
$3,083,000. Breakdown: $2,000,000 on the wrongful death claim; $1,000,000 for Erica McKeel for personal injury and emotional pain and suffering; and $83,000 for the father’s loss of consortium.
Judge: Jack E. Carney Jr.