“Slip on Scrambled Eggs Nets $591,000″

Slip on Scrambled Eggs Nets $591,000.00
By: Lawyers Weekly
Published: April 3, 2000

A Nevada jury awarded more than half a million dollars to a woman who slipped on a scrambled eggs at a Denny’s restaurant. The verdict was so large, in part due to a mock help wanted ad the plaintiff’s attorneys used to emphasize her permanent back injuries.

The jury awarded $591,99 to a 48-year-old Janet Lewis in the slips-and-fall case. The jury appraised her damages as $1.1 million, but reduced the award by 47 percent based on the plaintiff’s contributory negligence for not watching her footing more carefully.

On Nov. 4, 1995, Lewis got up from her stool at the diner-style restaurant and slipped and fell on a two-by-three inch portion of scrambled eggs. Denny’s employees had neglected to clean up the eggs from an earlier spill, the plaintiff’s attorneys contended.

Lewis suffered two herniated disks in the fall. The injuries required two back surgeries, and Lewis is permanently disabled, according to her attorneys.

Based on Lewis’ disability, her age and her training as a retail clerk, she is no longer employable, a vocational rehabilitation expert testified.

The jury calculated Lewis’ damages as $900,000 in future pain and suffering, $165,000 in future lost wages, $46, 881 in past medical bills,$2,400 in future medical bills and $1,000 in travel expenses to medical care.

Even with the contributory negligence finding, the jury award was sizable for a slip-and-fall case in Carson City, where the case was tried.

“Apparently I did everything right, “says lead plaintiff’s attorney Gerald Madison, adding tha he also got some luck breaks. “You have to get the breaks to win big.”

Defense attorney, Douglas R. Rands, did not respond to Lawyers Weekly USA’s request for comment on the case.

The Keys to Victory

Madison and second-chair Day Williams say the large award was due to four factors-the mock help-wanted ad, the use of a big screen TV, a lucky break finding an eyewitness and a reversal in the plaintiff attorneys’ original trial strategy based on an article in Lawyers Weekly USA.

*’Help Wanted.’

The mock help wanted ad helped convinced jurors that $900,000 for Lewis’ future pain and suffering was reasonable figure, Williams says.

Madison and Williams put together the Denny’s “ad” for Madison to use in his closing arguments. Pasted onto a 30-by-40 inch board between actual newspaper ads, the clipping looks like an enlarged classified advertisement in a newspaper. It reads:

FULL TIME HELP WANTED
•    Denny’s is now accepting appl. for position that will last your lifetime.
•    Shift is 24 hours a day
•    No vactions, no breaks
•    Must work weekends & holidays
•    No experience necessary

Must be willing to:
•    Fall hard enough to herniate 2 lumbar disks
•    Undergo 2 or more life threatening surgeries
•    Give up your favorite sport
•    Give up all other job opportunities
•    Give up walking except for short distances
•    Give up driving except you may apply for permit to operate by hand controls
•    Give up 2-3 hours of sleep each night
•    Have depression, frustration & anger
•    Have daily pain & restricted movement
•    Have a fear & limited social activities
•    Give up on normal sexual activities

This position doesn’t offer:
•    Travel opportunities
•    Excitement
•    Challenge

Salary: None, unless you can convince a jury that your fall, not your age, caused your injuries. No raises.

Apply in Person.

Madison says he picked up the idea for the help wanted ad a trial lawyers conference in Canada.

“For years I’ve been looking for a way to show to a jury how pain and suffering could be translated into money,” he says.

The strategy working. The plaintiff’s attorneys asked for $30,000 a year for Lewis’ pain and suffering for the remainder of her life expectancy, and that was the amount the jury awarded.

*The big screen.

The plaintiff’s attorneys videotaped the scene where their client fell, and they used the video extensively at trial. A friend of Lewis laid on the Denny’s floor in the video to show the location and position in which Lewis fell.

Madison’s decision to play the video and project still photographs on a big-screen television was especially effective, Williams says.

“Even with [Denny’s] knowing we were coming, there was a french fry on the floor and other dust on th floor. So that showed up really well on a big screen,” he says.

These details supported the plaintiff’s attorneys argument that Denny’s violated its own “clean as you go” policy, which required employees to clean an area every time a customer left, and the restaurant’s inspection policy, which required clean-up inspections every five to 10 minutes.

After showing the 20-minute videotape to the jury, the plaintiff’s attorneys played it back during testimony so that witnesses could point to what they were describing on the screen. Madison also ran the tape during his closing and occasionally pointed to relevant details.

*A lucky break.

Pure chance provided Madison with an independent eyewitness-a man named Jospeh Snyder.

“He ran into her at a senior center and said, ‘How are you doing? I saw you fall at Denny’s,’” Williams says.

Snyder saw the fall and remembered seeing a yellow substance under the stool. His credibility was bolstered by the fact that he has worked as a pit boss at casinos, a job that requires keen observation skills.

Snyder’s testimony broke the eyewitness stalemate-the plaintiff’s word against the defendant’s word-that often occurs in slip-and-fall cases, Williams says. These stalemates are often resolved in the defendant’s favor.

In this case, Denny’s initially maintained that there was nothing on the floor under Lewis’ stool, and Lewis said there were scrambled eggs. Snyder’s testimony added validity to Lewis’ story.

*A reversal in strategy.

Based on the results of two mock jury trials, the plaintiff’s attorneys decided to revamp their trial strategy.

The first mock trial ended in a hung jury, Williams says.

The attorneys reversed their trial strategy for the second mock trial. Instead of calling their client as the first witness-a move designed to stir the jurors’ sympathy-the plaintiff’s attorneys decided to begin with the alleged wrongdoing of the restaurant. Their goal was to elicit the jurors’ anger at the defendant.

The jury in the second mock trial awarded a larger verdict than the plaintiff won in the actual trial.

Williams says he and Madison tried switching the order of witnesses after reading a Lawyers Weekly USA article about trial strategy. The story included comments from trial consultants and lawyers who said jurors are more motivated by anger at a defendant than sympathy for a plaintiff and that having a personal-injury plaintiff testify first can backfire, with jurors thinking of reasons to blame the plaintiff for an accident. (See “Plaintiffs should Always Start by Attacking the Defendant,” 99 LWUSA 960, search Words for LWUSA Archives: Cusimano and Wenner.)

Working Around a Bad Witness

Although his testimony was necessary, the orthopedic surgeon who operated on Lewis was an expensive and rather uncooperative witness, Madison says. Madison hoped to have the surgeon explain the structure of the back in layman’s terms as well as detail Lewis’ injuries and the surgeries he performed on her.

But, Madison says, “he just refused to explain things to the jury. He just wasn’t a good witness.”

Moreover, the surgeon charged close to $1,000 an hour for his testimony, Madison says.

“So I hired a chiropractor at $550 an hour was willing to gave an anatomy lesson,” he says. Madison put the chiropractor on the witness stand for three hours one morning. When the surgeon testified that afternoon, the jury had the anatomy lesson fresh in their minds and could understand the surgeon’s technical language.

Madison says he also was worried about the surgeon’s testimony because he is not a particularly well-known or well-liked doctor in the community, while the medical expert for the defense is well-known and popular. But Madison persuaded the court to exclude a key part of the defense expert’s testimony.

The doctor, an orthopedist, treated Lewis for an ankle sprain she had suffered in the Denny’s fall, and he was going to testify that she never complained of back pain. The defense attorney, however, did not notify the plaintiffs’s attorneys before trial that the doctor was going to testify about anything but the ankle injury.

Madison says he used this oversight to exclude the orthopedist’s testimoney about her back. The doctor only could testify about Lewis’ ankle, and the jury seemed perplexed as to why he testified at all.

Strategic Move in Voir Dire

Madison believes he may have made one of his best moves during voir dire, when he addressed the issue of preponderance of evidence.

This standard of proof is fairly favorable to the plaintiff’s side, but Madison says jurors do not usually stick to this standard.

“These jurors want you to prove your case beyond a reasonable doubt,” he says, because that’ s how they normally make decisions in their lives.

Madison talked to prospective jurors about their decision-making, and he explained that reaching a verdict based on the preponderance of evidence might make them feel uncomfortable. Then he asked them if they could follow this standard even though it make them uncomfortable.

The plaintiff’s attorneys talked to jurors after the verdict, several told them that their emphasis on the preponderance of evidence standard made a big difference. They did, indeed, feel uncomfortable with their verdict but they thought about what Madison had said in voir dire and closing.

Plaintiff’s attorneys: Gerald Madison, Gerald Madison LTD, Carson City, NV; and Day R. Williams, Day R. Williams Attorney at Law, Carson City, NV

Defendant’s attorneys: Douglas R. Rands, Rands, South and Gardner, Reno, NV

The case: First judicial District Court, Nevada, Janet Lewis v. Denny’s Inc.; Case no. 96-00167A, Dept. No. 2; Judge Michael Gibbons

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