Effectively detailing the full constellation of problems plaintiffs suffer because of their injuries, and the compounding effect they have on a plaintiff’s life, can be critical in maximizing a damages claim. At trial against Kroger subsidiary Ralphs Grocery for the shoulder injury a nurse suffered in a slip-and-fall, Dave Fox won a seven-figure verdict by focusing on the vicious cycle he argued the accident started.
Vicki Bartholomew injured her shoulder in a fall at a Ralphs Grocery store in 2015. She underwent a shoulder replacement, but the shoulder became infected, which requires removal of the hardware, treatment of the infection, and a new replacement.
In the 2018, damages-only trial, Fox Law APC’s Dave Fox went beyond the orthopedic pain of the surgery and associated treatment to focus on the vicious cycle he said the injury set in motion. Notably, Fox presented extensive evidence from Bartholomew and others about how her chronic pain from the injury rendered her unable to sleep, which impacted her mood and energy, and affected her relationships with family, friends, and coworkers.
“It went beyond just a simple shoulder case,” Fox told CVN after the verdict, “to more of a chronic pain with a lack of sleep and associated fatigue-type case.”
In closings, Fox highlighted that cycle to show that chronic pain touched the range of elements in a general damages award. Fox also undercut any defense argument implying Bartholomew’s condition had improved in the time between her first shoulder replacement and when the replacement became infected.
“You heard [defense] counsel say ‘Oh, she’s doing fine. Everything’s fine for that year until the infection happened.’ You heard Vicki saying, and her family [saying] ‘This pain has not changed, it’s been staying all throughout 2017,” Fox told jurors. “So it’s not like things were great all of a sudden in this year before the infection. Nothing has changed in terms of her chronic pain.”
That point served as a key piece of Fox's argument: that Bartholomew would suffer chronic pain and life-long physical limitations because of the injury.
The argument resonated with the jury, which awarded $1.4 million, including $1.1 million in pain and suffering. The number, according to Fox, was much higher than the defense's pre-trial settlement offer.
“I think a lot of the older jurors that we spoke to really empathized with” the argument on pain and sleep loss affecting Bartholomew’s life, Fox told CVN after the verdict. “They sort of saw that as a bigger issue for her.”
Fox said the verdict illustrates the importance of detailing the full impact an injury has on a plaintiff. “If [plaintiff’s attorneys] look at [their] cases beyond just the orthopedic injuries themselves... beyond the x-rays and the films but really at how this is impacting someone’s… everyday life from the time they wake up to the time they go to bed… I think that will really help [in arguing damages],” Fox told CVN.
Email Arlin Crisco at acrisco@cvn.com.
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