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New Jersey Verdicts

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Shopper: Rice had been spilling onto floor for at least an hour

Amount:

$3,261,101.13

Type:

Verdict-Plaintiff

State:

New Jersey

Venue:

Cumberland County

Court:

Cumberland County Superior Court

Injury Type(s):

head-concussion; shoulder-rotator cuff, injury (tear); shoulder-frozen shoulder (adhesive capsulitis); surgeries/treatment-laminectomy; mental/psychological-cognition, impairment; mental/psychological-post-concussion syndrome

Case Type:

Premises Liability - Store, Invitees; Slips, Trips & Falls - Slip and Fall; Premises Liability - Dangerous Condition, Negligent Repair and/or Maintenance

Case Name:

Blanca Mercado and Hector Mercado v. Delsea Drive Supermarket d/b/a ShopRite of Vineland, Bottino's Supermarket and James Bottino, No. CUM-L-1126-09

Date:

December 19, 2013

Parties

Plaintiff(s):

Blanca Mercado (Female, 54 Years), 

Hector Mercado (Male, 58 Years)

Plaintiff Attorney(s):

Daniel E. Rosner; Rosner & Tucker; Vineland, NJ, for Blanca Mercado, Hector Mercado ■ Edward J. Tucker; Rosner & Tucker; Vineland, NJ, for Blanca Mercado, Hector Mercado

Plaintiff Expert(s):

Frank Stafford; APN; Nurse Practitioner; Cherry Hill, NJ called by Daniel E. Rosner, Edward J. Tucker ■ James Panaia; D.C.; Chiropractic; Vineland, NJ called by Daniel E. Rosner, Edward J. Tucker ■ Robert Sabo; M.D.; Neurosurgery; Somers Point, NJ called by Daniel E. Rosner, Edward J. Tucker ■ Robert Loderstedt, III; Retail Safety; Cranford, NJ called by Daniel E. Rosner, Edward J. Tucker ■ Wasique Narvel; M.D.; Family Medicine; Vineland, NJ called by Daniel E. Rosner, Edward J. Tucker ■ Jennifer Vanderbeck; M.D.; Orthopedic Surgery; Vineland, NJ called by Daniel E. Rosner, Edward J. Tucker ■ Alexander Pendino; D.O.; Neurology; Trenton, NJ called by Daniel E. Rosner, Edward J. Tucker

Defendant(s):

James Bottino, 

Bottino's Supermarket, 

Delsea Drive Supermarket

Defense Attorney(s):

Colleen M. Ready; Margolis Edelstein; Mount Laurel, NJ, for James Bottino, Bottino's Supermarket ■ None Reported; for Delsea Drive Supermarket

Defendant Expert(s):

David Mahalick; Neuropsychology; Maplewood, NJ called by Colleen M. Ready ■ Joseph Bernardini; Orthopedic Surgery; Vineland, NJ called by Colleen M. Ready

Facts:

On Feb. 3, 2008, plaintiff Blanca Mercado, 54, a home health aide, allegedly slipped and fell while shopping at the ShopRite supermarket in Vineland. Mercado claimed that she suffered back, shoulder and neck injuries and eventually required two shoulder surgeries, a laminectomy, and the surgical implantation of a permanent spinal-cord stimulator. Mercado sued the store, in its various apparent corporate forms, for negligence. She also sued an apparent individual owner, but that individual, and one of the corporate entities, were granted voluntary dismissals early in the litigation. The case proceeded as to the claim against the remaining ownership entity, Bottino's Supermarket. Mercado alleged that while shopping in the store she slipped and fell on rice that had spilled onto the floor. It was claimed that the existence of the rice on the floor constituted a dangerous condition of which the store was, or should have been, aware. Mercado (who spoke through translators at both her depositions and trial) testified that she slipped and fell on pieces of rice that had spread onto the supermarket floor from two separate punctures in two adjacent 18-ounce bags of rice situated on the second level of shelving. The punctures were about the size of a finger poke, it was claimed. Mercado's liability expert determined, and her attorney argued, that it had to have taken at least an hour for the rice to pour out onto the floor. The area covered with rice allegedly measured five feet in length and 12 inches in width. Mercado's fall was witnessed by her husband, who was pushing their shopping cart as Mercado walked in front of it. Although there were no specific claims of spoliation, Mercado's counsel pointed to the fact that the store had 38 operating surveillance cameras, but that no evidence existed showing the fall itself, the rice on the floor that caused the accident, the frequency of employee traffic in the aisle for the hour leading up to the accident, or the immediate aid Mercado received followed by her removal from the store on a stretcher. It was alleged at trial that the store had no designated loss-prevention employee or specific fall-prevention plan, and that both of these failures were in contravention of what Mercado's liability expert described as best practices and recognized industry standards. The store denied negligence and claimed there had not been sufficient prior knowledge of the allegedly dangerous condition. It was noted that the accident occurred on a Sunday and that Sundays were the store's busiest time of the week as of the time Mercado's accident occurred.

Injury:

After her fall, Mercado was taken by ambulance to a local hospital, where she was admitted for treatment of head, shoulder and back injuries. Whether Mercado was rendered unconscious at the scene of the accident was a disputed issue. Her husband testified that she was unconscious for several minutes immediately following her fall, and made only simple and inarticulate utterances when she appeared to regain awareness of her circumstances. Her treating and examining physicians diagnosed her with both concussion and post-concussion syndrome. (Diminished cognitive ability was a component of her damage claim but there was no expert finding of permanency as to the cognitive issues. There was anecdotal evidence of residual and lingering mental confusion and a diminution of her English-language skills.) Mercado was diagnosed with two bulging discs and two disc herniations from L2 to L5, with a compression fracture at L3-4, and a pars defect at L5. Discograms were positive for annular tears at L3-4 and L5-S1. Mercado was considered a poor candidate for spinal fusion surgery, it was argued. Her physicians determined that she would require four-level fusion surgery, with only a 15 percent prediction of success. It was determined that a lumbar laminectomy with the surgical insertion of a spinal-cord stimulator was her best option. This surgery was performed and it was opined by Mercado's physicians that the battery-powered device would require at least two, and probably three, future surgeries during her lifetime for battery replacements. The orthopedic surgeon who performed the insertion of the spinal stimulator was able to bring to court and show the jury the fluoroscopy video of the procedure taken simultaneously, showing the placement of the five electrical wires on the spine. Mercado also complained of shoulder pain and was diagnosed with a rotator-cuff tear, for which she underwent arthroscopic surgery. She had to undergo a second shoulder surgical procedure for adhesive capsulitis (frozen shoulder). Mercado's primary care physician gave deposition testimony, played at trial, indicating that he has treated her for seven years and that she has never complained of or exhibited symptoms of back or left-shoulder problems. (A pre-existing right-shoulder issue was noted.) He also testified that he had examined her seven months prior to medically clear her for work as a home health aide, and made no remarkable findings of spinal or shoulder pain. Mercado claimed she was unable to return to employment because of the accident. Mercado's husband joined in the action, asserting a per quod loss-of-consortium claim. The defense argued that a great extent of Mercado's physical claims were attributable to degenerative conditions. The defense's expert neuropsychologist, who addressed her diminished-cognition claims, stated they were perhaps embellished; he cited clinically noted impressions of malingering and of failing to try hard enough on certain testing.

Result:

The jury found that the store had been negligent with respect to Mercado's fall and that its negligence was the proximate cause of Mercado's injuries. The jury determined that Mercado should receive damages totaling $3,261,101.13, consisting of $2.7 million for pain and suffering, $240,000 for lost future wages, $161,101.13 for medical expenses that were unpaid or not reimbursed by insurance, and $160,000 for future medical expenses. The jury declined to award any consortium-loss damages to Hector Mercado.

Blanca Mercado: $160,000 Personal Injury: Future Medical Cost; $240,000 Personal Injury: Future Lost Earnings Capability; $2,700,000 Personal Injury: pain & suffering; $161,101 Personal Injury: unpaid/unreimbursed medical costs

Trial Information:

Judge:

Richard J. Geiger

Demand:

$820,000 (offer of judgment)

Offer:

$435,000

Jury Vote:

7-0 (but 6-1 as to lack of comparative negligence).

Post Trial:

There was a pretrial offer of judgment made by plaintiff for $820,000 filed on May 11, 2012. Plaintiff will apply for 8 percent interest on the damage award sum for the relevant 19-month period and seek additional trial costs.

Editor's Comment:

This report is based on information that was provided by plaintiffs' counsel. Defense counsel declined to contribute. (The apparently improvidently named ownership entity was not asked to contribute.)