Date of Verdict:

July 17.

Court and Case No.:

U.S. D.C. E.D. Pa. No. 2:13-cv-00778.

Judge:

John R. Padova.

Type of Action:

Personal injury.

Injuries:

Permanent pain in right shoulder, upper arm and left knee.

Plaintiffs Counsel:

Robert E. Slota Jr., Hamburg, Rubin, Mullin, Maxwell & Lupin, Lansdale, Pa.

Defense Counsel:

Jay D. Branderbit, Kent/McBride, Philadelphia.

Plaintiffs Expert:

Alex J. Balain, retail operations and safety consultant, West Hills, Calif.; Dr. Dennis Bonner, physical medicine and rehabilitation, Levittown, Pa.

Defense Experts:

Dr. Jennifer L. Vanderbeck, orthopedics, Vineland, N.J.

Comment:

A Philadelphia jury has awarded $834,703 to a Bucks County woman who fell at a Pathmark supermarket in Northeast Philadelphia while on the job. The plaintiff alleged the supermarket’s improper substitute for a doorstop caused the fall, which resulted in injuries that have left her with permanent pain in her shoulder and knee.

Prior to the incident, Barbara Ferguson was working as a retail sales representative for General Mills, and her job involved traveling to various grocery stores to sell new merchandise as well as to ensure that General Mills’ products were properly displayed.

In January 2011, Ferguson arrived at the Franklin Mills Pathmark and walked to the “pricing office” to prepare some of General Mills’ products for display. According to court records, as Ferguson left the office, she tripped over a box of paper that was used to prop the office door open. Ferguson’s right shoulder and knee hit the ground as she fell, according to a pretrial settlement memorandum filed by Ferguson.

The store’s general manager, Joseph Dougherty, testified during his deposition that the box of paper was commonly used to keep the door open, and a doorstop was installed after Ferguson’s injuries, which Dougherty admitted should have been replaced earlier, according to Ferguson’s pretrial memorandum.

As a result of the fall, Ferguson dislocated her upper right arm and fractured her right shoulder and left knee, and subsequently needed surgery to repair her arm. According to Ferguson’s pretrial memorandum, she can no longer fully raise her right arm. Despite both in-patient physical therapy at a nursing home and out-patient physical therapy sessions, Ferguson is incapable of completing everyday tasks such as grooming, driving and household chores, and she was unable to return to her work with General Mills, according to court papers.

Ferguson developed carpal tunnel in her right arm as a result of the accident, and she continues to have pain in her right arm and left knee, which medical experts for both Ferguson and Pathmark agree will never improve, according to Ferguson’s pretrial memorandum. In addition, Ferguson incurred medical expenses totaling almost $90,000, and with no plans to retire. She also lost her future wages.

According to a pretrial memorandum filed by The Great Atlantic & Pacific Tea Co. and Pathmark Stores Inc., Dougherty testified that he had never had any prior incidents using the box to hold the door open, which was in use to prevent the door from being frequently opened and closed. In addition, Pathmark’s point-of-sales coordinator, Shannon Kilbride, said she was in the office at the time of Ferguson’s fall and heard Ferguson admit to having seen the box when she entered the office after she had fallen, according to Pathmark’s pretrial memorandum. Ferguson was wearing glasses at the time, which she said were for reading, but her eye records state that she has monocular vision and cataracts, according to Pathmark’s pretrial memorandum.

Pathmark’s orthopedic expert, Dr. Jennifer Vanderbeck, said her examination of Ferguson revealed that her knee had healed and did not present any persistent dysfunction, and Ferguson was at a higher risk for fracture because of her history of osteoporosis. According to Pathmark’s pretrial memorandum, Vanderbeck stated that Ferguson’s shoulder showed regression as a result of her cardiac surgery that occurred in September 2011. Pathmark’s attorney, Jay D. Branderbit, could not be reached for comment.

Ferguson’s attorney, Robert E. Slota, said Pathmark offered to settle with Ferguson for $75,000 but she decided to take its case to court. After a two-and-a-half day trial, the eight-member jury deliberated for an hour-and-a-half before finding against Pathmark and awarded Ferguson $834,703 for medical expenses and lost wages. In addition, Ferguson will be filing for delay damages, Slota said.

— Kelly Flynn, for the Law Weekly