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Blair v. City of Middletown |
Revelations of previous falls leads to quick defense verdict
By Thomas B. Scheffey
Jamie Blair v. City of Middletown. On her walk to work at a Middletown obstetrical clinic, nursing aide Jamie Blair fell and injured her ankle.
She had just stepped off the curb and claimed that an improperly-maintained catch basin caused her fall. She also claimed that subsequent surgery to tighten ligaments in her leg was the direct result of that injury. Blair, represented by Durham solo Bruce Chaplin, initially demanded $250,000 to settle.
The city of Middletown was represented by Hartford lawyer Matt Gordon, assisted by Deirdre Stokes. Middletown took a “no pay” position on the matter, refusing to offer any amount to settle.
“Shortly before the trial began we discovered there was one set of medical records we didn’t have,” said Gordon. He subpoenaed those records and found “there were several prior incidents the plaintiff had with her left ankle that her expert witness, an orthopedic surgeon, had never seen.”
In a deposition, Gordon questioned the ankle surgeon, Dr. Lawrence Berson of the Middlesex Orthopedic Group. The doctor initially said that there was a causal connection between the plaintiff’s fall, her two surgeries, and her permanent injuries.
Plaintiff Blair was only 21, but she had a history of falling, and had previously injured her left foot. Gordon determined that she withheld this past history from both her doctor and her lawyer. Blair was suing Middletown under the state highway defects statute, which requires the defendant’s negligence to be the sole proximate cause of the plaintiff’s injuries. In such a case, any contributory negligence automatically results in a defense verdict.
In the most recent deposition, defense attorney Gordon questioned Dr. Berson about Blair’s earlier falls. “The doctor did a complete 180-degree turn,” said Gordon, upon being asked whether new information might cause him to change his view. “I showed him all this evidence that the plaintiff, his patient had never made him aware of, and he said yes, he would have to change his opinion,” Gordon said.
The doctor was not able to come to court. Plaintiff’s lawyer Chaplin got portions of the deposition testimony into the record simply by reading it aloud. Unfortunately, such a reading does not always make a lively presentation.
So defense attorney Gordon enlisted the aid of Ted Morris, an in-house lawyer at The Stanley Works in New Britain. Gordon and Morris had been associates together at what is now Day Pitney, and had done theater work to benefit Neighborhood Legal Services. At trial, Morris played the part of Dr. Berson, as he and Gordon read the deposition from start to finish. The performance got good reviews.
One of the jurors was New London attorney Paul M. Geraghty, of Geraghty & Bonnano. After the trial, he told Gordon that the two-voice presentation technique was effective. “We couldn’t ham it up,” said Gordon, “but there is a need for proper inflection.”
Difficult Theory
Chaplin, the plaintiff’s lawyer, said he purposely picked attorney Geraghty for the jury, along with other well-educated jurors. He knew his legal theory required nuanced thinking. Chaplin requested a jury instruction on the “eggshell plaintiff” concept, reminding jurors that a defendant “takes his victim as he finds him.”
In this case, the argument was that Middletown could not use the fact that the plaintiff had damaged her ankle previously to escape liability.
“I’ve often asked for that instruction, but this was the first time I got it,” said Chaplin in an interview. Middlesex Superior Court Judge James J. Abrams presided in the trial.
Chaplin said he figured “an ordinary blue-collar jury” might conclude his client simply needed to look where she was going. A better-educated panel might be receptive to his argument that “the roads are made for everyone, even people with disabilities like his accident-prone client. Her previous physical condition, Chaplin said, “wasn’t the cause for her surgery.”
But defense attorney Gordon said the treating physician’s reversal was devastating to the plaintiff’s case. “Number one, there was no longer a causal connection, no longer an expert opinion upon which the jury could rely,” Gordon said. “It also dramatically affected the plaintiff’s credibility in the eyes of the jury. Not only did she deny to us, under oath, that she’d ever had these specific problems with her left ankle, she never told her own treating physician.”
The jury also may have been impressed with the cast of defense witnesses. They came off well, Gordon said. “We had Sal Emmanuele, who was the head of [Middletown’s] department of streets and sanitation, and Mark Franccione. He’s the street sweeper who gets up at 3 a.m. every day, and has done so for the last 21 years, to sweep the streets of Middletown. Those people made a real impression on the jurors” with their testimony that every effort was made to keep streets in a safe condition.
On the last day of trial, the plaintiff lowered the demand to $15,000, but Middletown held firm. Gordon was confident when the jury went out. “We literally started a stopwatch.”
Nine months earlier, he said, “I had a verdict where the jury was out 20 minutes.”
But this case was a record, at least in Gordon’s memory. “The jury got the case at 4:41 and they came back nine minutes and forty-four seconds later with a verdict in favor of Middletown.”
This article is reprinted with permission from the october 4, 2010 issue of the ConnecticutLaw Tribune. © Copyright2010. ALMMedia Properties, LLCAll rights reserved. duplication withoutpermission is prohibited. All rights reserved.
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