Defense Verdicts, Successful Motions, Favorable Settlements & Noteworthy Retentions from The Garden State

July 2019, Issue IV

Newark Office Secures Defense Verdict for National Restaurateur

Newark Managing Partner Colin P. Hackett recently obtained a defense verdict in New Jersey on behalf of a national restaurateur. The unanimous defense verdict followed a relatively unusual mistrial due to a hung jury when the action was first tried six weeks prior in May 2019.

The case involved a restaurant patron who fell on the restaurateur’s premises and claimed his fall and resulting right shoulder rotator cuff tear and right knee ACL tear (for which surgery was recommended) were due to our client’s negligence. The negligence alleged was the novel claim our client allowed patrons to feed geese outside the front door of the restaurant and surrounding environs. This in turn caused the adult geese to become food-aggressive and protective of infant geese in the area where they were being fed. Plaintiff claimed that while exiting the restaurant, the geese assailed him both from the ground and the air to get at the bag of leftovers he was carrying. In attempting to avoid the geese, he tripped and fell, sustaining injuries.

After two trials consisting of seven trial days, the jury in the second trial returned a unanimous verdict finding the client not negligent. The plaintiff presented five witnesses including an orthopedic physician who opined as to the plaintiff’s injury, the causal connection to his fall at the restaurant, the injuries need for surgical intervention, and their permanency. The defense relied on cross examination of the plaintiff’s witnesses, an orthopedic expert who opined as to the pre-existing arthritic conditions of the plaintiff’s knee and shoulder, and the defense counsel’s advocacy and argument in obtaining the “No Cause” verdict.

The jury in the first trial deliberated for eight hours after which they reported they were “hopelessly dead locked” on the first question of the jury verdict form asking whether the plaintiff established by a preponderance of evidence defendant was negligent. The trial judge declared a mistrial and polled the jury forewoman who reported the jury was deadlocked at 5-2 in favor of the defendant, or that the plaintiff had not established by a preponderance of the evidence that the defendant was negligent.

New Jersey Office Successfully Transfers Case to More Favorable District

New Jersey Partner Michael L. Trucillo successfully argued a motion to transfer venue from the Federal District Court of New Jersey to the more favorable Federal District Court of South Carolina on behalf of a national retailer. The plaintiff, traveling from Florida to New York, alleged she fell at one of our client’s locations in South Carolina, suffering multiple fractures and ligament tears and requiring several surgeries which left her with permanent disabilities.

After determining that litigation in South Carolina provided strategically favorable defenses and considerable cost savings to our client, a petition for transfer was filed with the court. Over the plaintiff’s vehement opposition, we were able to convince the court that transferring the case to South Carolina was appropriate, thereby securing a more advantageous position for our client.

Newark Team Obtains Favorable Settlement for Snow Removal Client

Newark Managing Partner Colin P. Hackett and Associate Afsha Noran recently obtained a favorable settlement in a New Jersey court following a three-day trial. The plaintiffs – husband and wife – claimed the plaintiff-husband was struck by a pick-up truck. Specifically, the plaintiff argued that while performing snow removal services and operating in reverse, the pick-up truck operator struck the plaintiff as he was traversing an interior street of the condominium complex in which the plaintiffs lived.

Following the incident, the plaintiff underwent a three-level surgical cervical fusion surgery, left rotator cuff surgery, and ceased working as a union plumber. The plaintiffs claimed all of the husband’s injuries, surgeries, and inability to work were the result of being struck by the pick-up. The defense argued that the plaintiff “staged” the accident by stepping out from two parked cars, striking the rear of the pick-up with his hand and then falling to the ground. Moreover, the plaintiff had pre-existing cervical and shoulder injuries, and the surgeries and inability to work were caused by these pre-existing conditions.

Both before and at the start of trial the plaintiffs’ demand was seven figures. Following opening arguments, testimony – direct and cross examination – from the plaintiffs and the pick-up truck operator, and a lengthy conference with the trial judge, the plaintiffs dropped their demand 60% at which point the matter was settled.

The sudden drop in the plaintiffs’ demand was occasioned by the trial judge’s expressed opinion that the plaintiffs had testified very poorly on cross examination, as well as his belief that the plaintiffs’ counsel should be very concerned about the plaintiffs’ orthopedic expert not having been provided a single medical record pre-dating the plaintiff being struck by the pick-up truck. This fact was highlighted in the defense counsel’s opening statement and during the cross examination of the plaintiff.

Lewis Brisbois Retained as Counsel for Recent New York City Helicopter Crash

New Jersey Partner Peter Van Deventer and Lewis Brisbois’ wider national litigation team were retained as counsel in relation to the June 11, 2019 helicopter crash in New York City. Mr. Van Deventer is routinely retained around the country by entities involved in aviation accidents.

Indeed, as the nationwide “go to” attorney for such accidents, Mr. Van Deventer often receives calls immediately following such incidents as the entities seek to retain his services before any other possible defendants.