Virginia Lawyers Weekly//July 24, 2023
Virginia Lawyers Weekly//July 24, 2023//
Type of action: Premises liability
Injuries alleged: Skull fractures, traumatic brain injury
Name of judge or mediator: Judge Thomas Shadrick (Ret.)
Special damages: Medical bills of $200,552.03
Verdict or settlement: Settlement
Attorneys for plaintiff: James McCauley, Edward Scher, Ryan Walker and Joel McClellan, Richmond
Description of case: The case arises out of an incident in which a heavy merchandise display fell on the plaintiff in a retail store.
There were no witnesses, and the plaintiff had no memory of what happened. The plaintiff sustained skull fractures and a brain injury. Doctors performed emergency brain surgery. The plaintiff was released after six days in the hospital and re-entered public school several months later.
At the time of the incident, the plaintiff was 7 years old. The plaintiff had a significant pre-existing condition that is associated with life-long cognitive deficits. Prior to the incident the plaintiff was already experiencing problems which required speech therapy and an individualized education program at school.
After the plaintiff’s return to school, the plaintiff attended elementary, middle and high schools in regular classes with an IEP and accommodations. The plaintiff’s grades were mostly As.
Post-incident neuropsychological testing showed impairments, but there was no pre-incident baseline to compare against those results. Plaintiff’s counsel delayed filing suit for several years so that the full scope of plaintiff’s injuries could be determined.
The defendants denied negligence and alleged a variety of affirmative defenses. Plaintiff’s counsel conducted extensive discovery to establish liability. Although there was no evidence of exactly what caused the display to fall on the plaintiff, plaintiff’s counsel discovered that the defendant had internal records showing that the display was part of a large order of displays used in defendant’s stores throughout the country, that defendant knew that some of the displays were unstable or had sustained shipping damage, that several had fallen over before and that all of the displays — including the one that fell on plaintiff — were scheduled to be retrofitted by the manufacturer to make them less susceptible to damage. But defendant continued to use the display on the sales floor before the retrofit was installed. It was disputed whether sufficient inspections of the displays on the sales floors had been performed.
According to the defendants’ experts, the plaintiff made a full and “excellent recovery,” the plaintiff had done well in school since recovering and the plaintiff’s post-incident impairments pre-existed the incident and were the result of the plaintiff’s pre-existing condition. Defendant hired multiple medical experts from around the country to support those contentions. Plaintiff’s counsel contended that plaintiff’s pre-existing condition did not cause plaintiff’s post-incident impairments. Plaintiff’s counsel relied on the opinion testimony of multiple experts to address these issues, including education specialists, brain injury doctors and physicians specializing in the plaintiff’s pre-existing condition.
The parties were not able to reach a settlement during the day reserved for the mediation, but the $9 million settlement was reached several weeks later with Judge Thomas Shadrick’s continued assistance. Structure services were provided by Ron Feinman of One World Structured Settlement Design, LLC.
Plaintiff’s counsel’s firm provided case information.