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Marcia Herzog and her husband, Max, probably want to rewrite the events of Nov. 15, 1988 — the day she fell at Kmart in Delray Beach, Fla. Shopping at the discount giant, Marcia Herzog slipped on spilled shampoo, slid on the floor and crashed her head into metal shelving. Cut to the bone over her left eye, she required 39 stitches. Herzog also suffered two ruptured discs in her neck and later, arthritis in one of her jaw joints, a condition known as TMJ. The Herzogs hired personal injury heavyweight Jack Scarola of Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, Fla., and sued the self-insured retailer in 1989 in Palm Beach Circuit Court. That began a torturous sojourn through litigation hell. While they technically won three separate jury trials, the Herzogs now may owe thousands of dollars to Kmart and its lawyers, following a June 14 decision by the 4th District Court of Appeal. “It’s a travesty of justice; my heart goes out to [the Herzogs],” said the Herzogs’ appellate attorney, Patrice A. Talisman of Hersch & Talisman in Miami. “It’s an extraordinary circumstance and one for which I have no explanation,” said Scarola. He plans no appeal, but says he’s confident his clients will not face paying legal fees, since their out-of-pocket trial costs exceed $50,000. The appeals court has held in the past that once a plaintiff has reached a certain level of expenses, other fees should not be tacked on. Kmart’s lawyers at corporate headquarters in Troy, Mich., along with its attorneys Geoffrey B. Marks and Aida M. Landa of Cole White & Billbrough in Miami, did not return Miami Daily Business Review phone calls. Scarola and his partner Christopher Speed persuaded the jury in the first trial before Circuit Judge W. Matthew Stevenson in 1989 that Kmart was 75 percent at fault and Marcia was 25 percent at fault. Kmart never disputed Marcia Herzog’s medical evidence of injury, Talisman says. The first jury awarded Herzog $1,300 for past medical expenses and $11,200 for past pain and suffering — before the 25 percent reduction for her negligence. The jury awarded Max nothing on his loss of companionship claim. Finding the jury verdict “grossly inadequate and contrary to the manifest weight of the evidence,” Stevenson ordered a new trial in 1992. Kmart appealed to the 4th District Court, which, in 1993, affirmed the order without opinion. That set up Round 2. In the second trial in 1996 — on damages only — Herzog’s seven medical experts testified her injuries were permanent and that the three surgeries since the first trial were caused by the Kmart fall. A second jury awarded Marcia $1,850 for past medical expenses and $10,000 for past pain and suffering before reducing the amount by 25 percent. The jury awarded $1,000 to Max for his claim. Circuit Judge Catherine M. Brunson ordered a new trial, restating the rationale of the first trial judge. Kmart again appealed and lost before the 4th District in 1997. But before the third trial, Kmart offered to settle for $20,001. The Herzogs rejected the written offer, arguing instead Marcia had $294,000 in past medical costs, $58,900 in future medical expenses, $115,100 in lost earnings and $380,000 in loss of future earning capacity. The last phase of the Herzog trial trilogy started on May 11, 1998, before yet another judge, Edward M. Fine, and lasted six days. The Herzogs fared no better; the third jury awarded Marcia $1,480 for past medical expenses and $10,000 for past pain and suffering. For husband Max: $5,000. After the 25 percent reduction, the couple’s total judgment against Kmart was $12,351. Because it was less than Kmart’s written settlement offer, Kmart claimed legal fees. “We impaneled three different juries who appear to have bent over backward to avoid helping these people [Herzogs],” Scarola said. This time, Fine denied the Herzogs’ motion for a new trial, but rejected Kmart’s bid for fees and costs. Everyone appealed to the 4th District, which heard the case for the third time. Senior Judge William C. Owen Jr. wrote for a unanimous three-judge panel that the court — as before — refused to step into the shoes of the trial judge. Thus, it declined to grant Herzogs a fourth trial. But the appeals court reversed Fine’s ruling denying Kmart attorneys fees and costs. Fine must now determine how much money the Herzogs owe Kmart and their legal team for the jury trial and failed appeal. Despite having devoted hundreds of hours to the Herzogs, Scarola said there’s never been a case in the history of his firm in which a client won before a jury and walked away with nothing. Scarola said he wants to see the Herzogs get some compensation, “even if we take a financial loss as a result.”

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