CVN screenshot of defense attorney Dana Fox delivering his closing argument
Santa Ana, CA - A Howard Johnson hotel avoided a potentially $68 million verdict on Wednesday in a lawsuit over a child’s near-drowning in a hot tub, when a unanimous California state court jury declined to award any damages in the case, which resulted in the parties reaching a late-trial confidential settlement.
The 12-member Orange County Superior Court jury found that while the Howard Johnson hotel in question was negligent, their negligence did not contribute to a 2015 accident that attorneys for plaintiff Angelique Anderson claimed caused her young daughter’s serious brain damage.
Defense attorney Dana Fox of Lewis Brisbois, who represented the hotel, told Courtroom View Network after the trial that the parties reached a confidential “high/low” agreement shortly before the verdict was reached, resulting in a settlement after the jury's decision was read into the record.
High/low arrangements are a form of settlement where the parties agree to a certain amount of damages if the jury awards an amount above a specific number, and another amount of damages if the award falls below that number.
The full trial was webcast and recorded gavel-to-gavel by CVN. Subscribers to CVN's trial video library get unlimited on-demand access to the full proceedings, including expert witness testimony, along with hundreds of other civil trials in courts throughout the United States.
Anderson sued the hotel after her then six-year-old daughter, Journey Hudson, was found face-down in a hot tub at the Howard Johnson’s waterpark. Her attorneys argued Hudson fainted in an overheated hot tub that was too easily accessible for children, and that the hotel didn’t take adequate safety precautions to protect children playing in the facility.
The hotel successfully argued that the accident occurred due to Anderson’s failure to properly supervise her daughter, and that Hudson’s fainting and subsequent brain damage resulted from a viral infection unrelated to her time in the hot tub.
“By everyone’s agreement this was a tragic accident,” Fox told CVN. “That said and recognized, I am extremely pleased with the outcome of the trial and the jury’s verdict.”
Fox praised the jury for “basing their decision on the evidence and the law, and not based on the undeniable sympathy that everyone would feel for this child.”
Zoe Littlepage of Athea Trial Lawyers, who represented Anderson, declined to comment on the outcome of the trial beyond confirming the existence of a settlement. Anderson's attorneys sought up to $68 million for her daughter's brain damage, which they argued would cause her to require near round-the-clock care for the rest of her life.
Fox said he thought the jury was particularly swayed by Hudson’s brain scans, which defense experts testified lacked the tell-tale signs of hyperthermia and lack of oxygen one would expect in a drowning incident in a supposedly overheated hot tub.
“The jury could see them, and they were easy to look at and understand what was there and what wasn’t there,” Fox explained.
The case marked the first post-pandemic trial for Fox, a prolific litigator and one of Lewis Brisbois’ top trial partners for high-exposure cases involving prominent plaintiff attorneys. He described the whole process as “clunky,” noting that jury selection took nine days instead of the expected three, resulting in an unexpectedly compact trial schedule.
He said the socially distanced layout in the courtroom, with jurors in both the jury box and spaced out in the seating gallery, posed additional logistical challenges that lawyers need to plan for in upcoming trials.
“How do you position yourself and communicate to everyone at the same time under these circumstances,” Fox speculated. “I don’t have a magic answer for that, but it’ s something all lawyers should be thinking about.”
Ultimately Fox didn’t think factors like face masks and the courtroom layout played any role in the trial’s outcome.
“Both sides were saddled with the same limitations,” he said.
The parties made extensive use throughout the lengthy trial of high-quality demonstratives and exhibits, and Fox took care to praise Riverside, California-based Litigation Support Professionals for their work during the case, along with jury consultant Marissa Beyers of Trial Behavior Consulting.
Fox had kind words for his opposing counsel, a comity sometimes lacking in contentious and emotionally-charged civil cases that was echoed by plaintiff attorney Deborah Chang, who took time during her closing arguments to compliment Fox’s advocacy.
“They put on a great case, and it required me to be on my A-game at all times,” Fox said. “Good lawyering should bring out good lawyering.”
The case is captioned Journey Hudson v. Great American Land Company, case number 30-2019-01052572-CU, in the Superior Court of California in Orange County.
E-mail David Siegel at dsiegel@cvn.com