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Florida Verdicts

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Plaintiff claimed crash-related injuries caused cancer to recur

Amount:

$3,220,000

Type:

Verdict-Plaintiff

State:

Florida

Venue:

Palm Beach County

Court:

Palm Beach County Circuit Court, 15th

Injury Type(s):

leg-bruise; back-degenerative disc condition, exacerbation of, neck-degenerative disc condition, exacerbation of; chest; chest-fracture, rib; chest-hemopneumothorax; other-swelling; other-abrasions; other-laceration; other-fracture, distal; other-fractured spleen; other-radiation therapy; other-spleen, laceration; other-myofascial syndrome; other-aggravation of pre-existing condition; shoulder-fracture (fracture, scapula), shoulder (fracture, scapula); shoulder-fracture (fracture, clavicle), shoulder (fracture, clavicle); shoulder-fracture (fracture, collarbone), shoulder (fracture, collarbone); epidermis-paresthesia; arterial/vascular-internal bleeding; surgeries/treatment-splenectomy; mental/psychological-depression; pulmonary/respiratory-pneumothorax; pulmonary/respiratory-collapsed lung; gastrointestinal/digestive-spleen

Case Type:

Motor Vehicle - Speeding, Broadside, Tractor-Trailer, Underinsured Motorist; Affirmative Defenses - Contributory Negligence

Case Name:

Barry Davis v. Dale A. Vannelli Jr., Individually; South Florida Bushog Service Inc., a Florida Corporation; and State Farm Automobile Insurance Company, No. 2014CA010670

Date:

December 9, 2016

Parties

Plaintiff(s):

Barry Davis (Male, 60 Years)

Plaintiff Attorney(s):

Brian R. Denney; Searcy Denney Scarola Barnhart & Shipley P.A.; West Palm Beach, FL, for Barry Davis ■ Edward V. Ricci; Searcy Denney Scarola Barnhart & Shipley P.A.; West Palm Beach, FL, for Barry Davis

Plaintiff Expert(s):

G. Buchner; P.E.; Accident Reconstruction; Tallahassee, FL called by: Brian R. Denney, Edward V. Ricci ■ Craig Lichtblau; M.D.; Physical Medicine; North Palm Beach, FL called by: Brian R. Denney, Edward V. Ricci ■ Anthony Addesa; M.D.; Radiation Therapy; Jupiter, FL called by: Brian R. Denney, Edward V. Ricci

Defendant(s):

Dale R. Vannelli, Jr., 

South Florida Bushog Service Inc., 

State Farm Automobile Insurance Co.

Defense Attorney(s):

Donald W. St. Denis; St. Denis & Davey, P.A.; Jacksonville, FL, for Dale R. Vannelli, Jr., South Florida Bushog Service Inc. ■ Michael T. Bill; Young, Bill, Boles, Palmer and Duke P.A.; Pensacola, FL, for State Farm Automobile Insurance Co. ■ Blaire Campbell Hammock; St. Denis & Davey, P.A.; Jacksonville, FL, for Dale R. Vannelli, Jr., South Florida Bushog Service Inc.

Defendant Expert(s):

Marc Rubenstein; Physical Rehabilitation; West Palm Beach, FL called by: Donald W. St. Denis, Blaire Campbell Hammock ■ James Parsons; Radiation Therapy; Boynton Beach, FL called by: Donald W. St. Denis, Blaire Campbell Hammock ■ Martin Garcia; Accident Reconstruction; Fort Pierce, FL called by: Donald W. St. Denis, Blaire Campbell Hammock

Insurer(s):

Wesco Insurance Co. for South Florida Bushog Service and Vannelli

Facts:

On Dec. 4, 2013, plaintiff Barry Davis, 59, a security guard, was driving a 2007 Ford Mustang east on Indiantown Road toward the Interstate 95 overpass/Florida's Turnpike service road, in West Palm Beach. As Davis was approaching the overpass, a 2005 Kubota tractor pulling a commercial Bushog mower attempted to cross over the highway's median. Davis' vehicle subsequently struck the driver's side portion of the tractor. Davis claimed injuries to his chest and spleen. Davis sued the driver of the tractor, Dale Vannelli Jr., and Vannelli's employer, South Florida Bushog Service Inc., which owned the tractor Vannelli was using to mow grass near the intersection at the time of the accident. Davis alleged that Vannelli was negligent in the operation of the tractor and that South Florida Bushog Service was vicariously liable for Vannelli's actions while driving the tractor within his scope of employment. Davis also sued State Farm Mutual Automobile Insurance Co., seeking further recovery via the supplementary-underinsured-motorist provision of his own insurance policy, which was administered by State Farm. State Farm ultimately settled before trial for an undisclosed amount. Davis claimed that he was approaching the overpass when a Vannelli's tractor suddenly pulled out in front of him while attempting to cross over the highway's median. Thus, he claimed that Vannelli's action caused him to strike the driver's side portion of the tractor. According to plaintiff's counsel, the foreman of the mowing crew for South Florida Bushog Service testified in a pretrial video deposition that Vannelli violated a company policy that prohibited its employees/drivers from crossing a roadway when there are other vehicles approaching. However, at trial, the foreman changed his testimony and stated that there was nothing improper about Vannelli's method of crossing the road. Vannelli testified that he looked to his left before attempting to cross over the road and that he did not see Davis' vehicle approach the intersection until the moment of impact. Defense counsel contended that given the distance between Davis' vehicle and the Kubota tractor, Vannelli was not required to yield. However, defense counsel argued that Davis was driving at an excessive rate of speed -- traveling at 76 to 77 mph in a 50 mph speed limit zone. Thus, counsel argued that the accident could have been avoided had Davis been driving slower within the speed limit. Defense counsel further argued that due to Davis' speeding, David was at contributorily negligent and responsible for the accident. The defense's accident reconstruction expert testified that Vannelli did not violate Davis' right-of-way and concluded that Davis struck the driver's side portion of the bush hog mower. The expert further determined that the Kubota trailer was in the intersection first and that Davis had an opportunity to see the vehicle and avoid the collision, but failed to do so.

Injury:

Davis sustained a left hemopneumothorax, a splenic rupture, a left distal clavicle fracture, and several fractured ribs. He was subsequently airlifted to St. Mary's Medical Center, in West Palm Beach, and was admitted for a period of 22 days. During his hospitalization, Davis underwent a thoracotomy, an exploratory laparotomy, and a splenectomy. An arterial catheter was inserted, as was a left-sided chest tube. He also underwent rehabilitative exercises at the hospital. Prior to the accident, Davis was undergoing radiation treatments for a squamous cell carcinoma, which metastasized to his lymph nodes of his let check and jaw. He contended that the injuries he sustained in the accident disrupted his cancer treatments for two months, causing his untreated carcinoma to recur and metastasize to the parotid gland,a major salivary gland. As a result, he required surgery to remove the tumor in his check and a skin graft taken from his right arm. Post-surgery, Davis commenced a series of chemotherapy and radiation treatments. The plaintiff's treating physiatrist opined that the physical trauma Davis sustained in the accident aggravated a pre-existing degenerative lumbar disc condition, which was asymptomatic at the time of the crash but was symptomatic afterward. Further, the physiatrist opined that the reactivation of the lumbar disc disease caused Davis to develop myofascial pain syndrome and paresthesia in his legs. The plaintiff's treating radiation oncologist opined that the recurrence of Davis' cancer was causally related to the accident because his traumatic injuries interrupted the course of radiation treatments he was receiving at the time of the accident. Defense counsel contended that the recurrence of Davis' squamous cell carcinoma, and subsequent chemotherapy and radiation treatments were unrelated to the accident.

Result:

The jury found that Vannelli was 57 percent liable for the crash and that Davis was 43 percent liable. It also determined that Davis' damages totaled $3.22 million. After apportionment, Davis' recovery would have been $1,835,400.

Barry Davis: $300,000 Personal Injury: Past Medical Cost; $1,500,000 Personal Injury: Future Medical Cost; $420,000 Personal Injury: Past Pain And Suffering; $1,000,000 Personal Injury: Future Pain And Suffering

Actual Award:

$1,644,938.10

Trial Information:

Judge:

Richard L. Oftedal

Demand:

$1,000,000

Offer:

$50,000

Trial Length:

2  weeks

Post Trial:

In addition to the comparative liability offset, the court entered a judgment further reducing Davis' recovery based on set-offs of his past medical bills due to collateral sources. Thus, Davis should recover $1,644,938. Defense counsel moved for a new trial or, alternatively, for remittitur, but the motions were denied.

Editor's Comment:

This report is based on information that was gleaned from court documents, and articles that were published by The National Trial Lawyers, Lexis Nexis, and plaintiff's counsel's newsletter. Information was also gleaned from an interview of plaintiff's counsel. Defense counsel did not respond to the reporter's phone calls.