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Deliveryman falls into drain hole outside restaurant – $338,000 Settlement

Virginia Lawyers Weekly//May 31, 2010

Deliveryman falls into drain hole outside restaurant – $338,000 Settlement

Virginia Lawyers Weekly//May 31, 2010

On Jan. 20, 2007, the plaintiff injured his left knee when his foot shot out from under him and into an unguarded/uncovered drain hole as he was wheeling a loaded handcart during an early morning delivery to the defendant’s restaurant.

According to plaintiff’s engineering expert, the uncovered drain and inadequate lighting to illuminate the drain were violations of the property maintenance code. The defendants admitted liability in response to requests for admission. Although an MRI revealed a meniscus tear, Dr. Beach performed microfracture surgery to alleviate symptoms attributable to pre-existing Grade III-IV degenerative changes because the tear proved too small to repair. The plaintiff sustained a work injury to the same knee three months before the accident that was also diagnosed as a meniscus tear, although he had been released back to full duty prior to the accident.

Defense expert Dr. O’Brien stated in his Rule 4:10 report that only the first three to six weeks of treatment were related to the accident, but he conceded in his deposition that the surgery and up to 12 weeks of treatment were related and reasonable. Meanwhile, after first testifying in his de bene esse deposition that the accident was a precipitating factor for the future total knee replacement he had recommended, Dr. Beach, admitted on cross-examination that the plaintiff would have eventually required the knee replacement anyway based on pre-existing Grade IV changes, and then offered on re-direct that the accident was one of multiple causative factors. Dr. Beach was also cross-examined with an early, contradictory draft of a report he wrote in the underlying workers’ compensation claim.

The plaintiff’s wage loss claim was complicated by the fact that his employer subsequently fired him for alleged fraud related to his time-clock usage. These allegations were rejected twice in the underlying workers’ compensation case, and a motion in limine to exclude this evidence was pending at the time of settlement. Although a functional capacity evaluation ordered by Dr. Beach limited the plaintiff to medium-demand work, he already had the same restrictions for a prior shoulder injury.

Plaintiff’s vocational expert found a future loss of earning capacity lasting five years, while the defense expert testified that similar paying jobs were available, even though the plaintiff applied for over 180 jobs after being terminated.

The plaintiff was simultaneously litigating the workers’ compensation and personal injury claims.

Despite having a subrogation lien, the compensation carrier aggressively defended the underlying claim. The personal injury case settled approximately two weeks after the original mediation thanks to the efforts of mediator Michael Harman. Ultimately, the compensation carrier waived the subrogation lien of approximately $49,500.


Type of action: Personal injury – slip and fall
Injuries alleged: Left knee, aggravation of pre-existing degenerative joint discase
Name of case: Darryl Watts v. Aunt Sarah’s Pancake House, et al.
Court: Richmond Circuit Court
Case no.: CL08-5604
Tried before: Mediator
Name of mediator: Michael E. Harman
Special damages: $24,030 in medicals; $42,348.66 in wage loss; contested future medical expenses and loss of earning capacity
Verdict or Settlement: Settlement
Amount: $338,000
Date: Feb. 3, 2010
Plaintiff’s attorney: Craig B. Davis, Richmond
Plaintiff’s experts: Dr. William Beach and Dr. Larry Sinsabaugh – vocational; Linda McKinley RN – life care planner; Charlie Crim – engineer
Defense experts: Dr. Michael O’Brien and H. Gray Broughton – vocational
Insurance carrier: Travelers

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