By Michael E. Moore, TLC 2010
Be careful what you ask for, because you may get it! Id been dying to take a case to jury trial. Felt like a bad ass ready to try anything after getting my medicine bag in July 2010. Last words I heard Gerry speak to me before I left the ranch: Go get em! Fired up, I returned to San Diego and told local attorneys you got a crappy case you dont want, Ill take it to trial for you.
In the first week of December 2010, an attorney down the hall came by and asked if I was still looking for crappy cases set for trial; I said sure. He introduced me to Alicia Lopez whose case was set for trial in 5 weeks and she had no attorney.
Alicia is 32-year-old obese (265 lbs at time of incident) Hispanic female who never finished high school and has 3 children and 5 months pregnant with her 4th child. There family lives in extreme poverty and her oldest daughter has Downs syndrome. Alicias previous attorney abandoned her because she couldnt pay any costs for the case. Previous attorney ONLY propounded written discovery; all responses, with the exception of 2, had page long objections. Previous attorney had also designated a non treater as the expert. The only deposition taken in the case was Alicias. I told her I would only take the case if we can just go straight to trial; I don’t want a continuance. She agreed, so off we went.
Defense attorney is typical old school insurance defense attorney 75 jury trials under his belt. Offers nothing (money or discovery) on the case.
The case: August 2008 Alicia is shopping with her daughters. Goes into aisle 3 and notices a man stocking yogurt. Walking down the aisle, Alicia sees sour cream and goes to get it. The girls keep pushing the cart slowly forward. They go past the man stocking yogurt. Alicia picks up the sour cream and walks towards the children. As she walks by the man stocking yogurt, she slips and falls. The man stocking yogurt runs to the back of store and soon comes back with assistant manager and towels to clean up the mess on the floor. Alicias 11 yr old daughter sees what appears to be blue yogurt on the floor as he is cleaning. The manager takes Alicias information, then Alicia leaves the store in pain.
Next day Alicia went to ER – did not complain of back pain, but was diagnosed with hip contusion. Few days later went to chiropractor complaining of back pain and pain radiating down her right leg. Chiro sent her to lawyer. Saw chiro 7 times over a period of 3 months. She stopped because it wasn’t working so well. No other treatment until Feb the next year. She was cleaning house and the pain got really bad, so bad she was crying and went to the ER. They gave her morphine and other hard core meds for pain. She goes to another chiro 2 times, once for exam and once for consultation. He recommends she get an MRI. She get’s MRI and shows 1.5 mm at L1-2, 2 mm at L4-5, 2 mm at L5-S1. Sees neurosurgeon who recommends pain injections, she gets injections from some doc, but they’re not epidurals, some thing else. Little relief.
The good facts, they never produced surveillance video, which I argued would have shown them at fault. Also, I subpoenaed the man stocking yogurt for trial, but he was no show and I got judge to issue bench warrant for his arrest.
Damages: Her leg and back still hurt. Past medical bills are 14k and all on liens; 12k of which are diagnostic. Future medical by the expert designated by previous attorney had 100k-150k which was a mixed bag of weight loss, acupuncture, more pain management and possibly surgery; he could never say how he came up with that number. But he said on the stand under cross, “Alicia would get the most benefit from weight loss”! Yep, our on expert!! No other damages.
Four day trial. Judge admonished me a few times; once for ingratiating myself during voir dire, because during our discussions of racism, I mentioned I lived in Japan for 3 years and knew what discrimination felt like. During opening I laid down on the floor in front of the jury, judge, and everyone. Court reporter freaked out and asked what do I do, I said have the record reflect plaintiffs counsel is on the floor. I laid down again, during one of my witnesses re-enactments.
Used soft cross on every defense witness and just told our story. Used polarizing the case with soft cross on defense doctor. He mentioned he previously had back surgery, so I asked him about his pain before and after surgery. Defense counsel got pissed off and started objecting.
Jury deliberated for about 7 hours and returned liability 11-1, damages of $103,000.00, and apportioned 20% to plaintiff. We were so happy we almost started crying!
Special thanks to San Diego local warriors who worked with me at our local meeting the Friday before trial started. Our local meetings are terrific!!