Ziert vs. Young’s Lockeford Payless Market, Inc.; Zenith Insurance Company vs. Young’s Lockeford Payless Market, Inc. – San Joaquin County

James Miller headshotOn May 1, 2015, Jim Miller completed a 10 day jury trial in San Joaquin County Superior Court where the plaintiff sought over $7,000,000.00 in damages for lost wages, medical expenses and pain and suffering allegedly arising from an incident that occurred at Jim’s client’s store. The intervenor, Zenith Insurance Company, sought repayment of workers’ compensation benefits paid to the plaintiff. After hearing the testimony of eight medical doctors, three liability experts, an economist, a neuropsychologist, two vocational rehabilitation experts, the plaintiff, his wife, daughter and two defendant company representatives, the jury returned a verdict finding the plaintiff 75 percent at fault for the incident and awarded him $720.00. The intervenor received a verdict of zero dollars. Since Jim’s client had served both the intervenor and the plaintiff with 998s well above the jury verdict amounts, he is seeking over $133,000.00 in costs and expert fees from the intervenor and plaintiff.

This action arose from an incident that occurred on May 30, 2008 after plaintiff fell through a false ceiling that was held up by wires located on the property of Jim’s client. Plaintiff was a pest exterminator who had serviced the grocery store for about four years before the incident. On the day of the incident, he was told that mice had been spotted in the accounting office and was asked to remedy the problem. Plaintiff went to the accounting office which was on the second floor in the warehouse portion of the store. He examined the exterior of the office and saw a door which appeared to him to be an alternative entrance into the office. Therefore, he started walking toward the door on what appeared to him to be a solid surface. Instead it was a false ceiling, and the plaintiff fell through it landing 12 feet below.

The defendant employee witnesses testified that the door plaintiff was walking toward when he fell was never operable after it was put into place over 20 years ago. The door was intended to allow employees to view the entire store from a two-way mirror to look for shoplifters. If the door was to be used, a platform would have been installed. However, the owners of the store decided to use video cameras to look for shoplifters instead. Accordingly, they blocked off access to the door within the accounting office but never blocked it off in the exterior of the office.

The first trial of this matter originally commenced in February 2015. After four days of trial, Jim brought a motion for mistrial because the plaintiff’s attorney showed the jury a photograph depicting subsequent remedial measures. Prior to the commencement of the trial, Jim’s motion in limine barring the plaintiff from presenting such evidence was granted. The plaintiff’s attorney violated this court order by showing the photograph and, accordingly, the trial judge granted a mistrial and ordered a second trial to commence in April.

During the trial in April, Jim relied upon liability experts to show that the alleged hazard was open and obvious and that the plaintiff should have known that he was walking onto a false ceiling. Jim also relied upon medical expert testimony to show that the plaintiff had preexisting injuries. Ultimately, the plaintiff did have low back fusion surgery after the incident and was precluded from working at any time in the future due to those injuries. The plaintiff also suffered from severe depression and chronic pain. His total medical expenses where in excess of $450,000 while his past and future wage loss was more than $1 million. Jim relied upon treating physicians and an IME doctor to show that the alleged injuries were preexisting and not related to the fall.

The plaintiff and intervenor vigorously opposed liability hiring two experts who opined that the area where the plaintiff fell was dangerous and that access to the area should have been blocked off or warned against. Furthermore, the plaintiff relied upon physicians who performed surgeries and administered diagnostic and therapeutic injections on the plaintiff several months after the incident wherein those doctors opined that the need for care was related to the incident. During cross-examination, Jim was able to get the doctors called by the plaintiff to admit that they did not have a full understanding of the plaintiff’s medical history when they opined that the surgeries and treatment were related to the fall.

Jim also called doctors who had examined the plaintiff both before and after the incident. Those doctors, along with the IME doctor Jim retained, found that the plaintiff’s need for back surgery was unrelated to the fall. While those doctors agreed that the plaintiff could no longer work in almost any capacity, they found the reason for such was because of pain, depression and residuals from the back surgery.

Ultimately, the jury found Jim’s argument regarding causation of injury persuasive and awarded the plaintiff minimal amounts of money. However, those minimal amounts of money were then reduced by a finding that the plaintiff was 75 percent comparatively at fault.

The plaintiff and intervenor’s attorneys filed motions for new trial which were denied.

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