New York Verdicts

Plaintiff(s):

Cynthia J. Macey (Female, 51 Years)

Plaintiff Attorney(s):

Philip J. O’Shea Jr.;
Smith, Miner, O’Shea & Smith LLP;
Buffalo,
NY,
for
Cynthia J. Macey

Plaintiff Expert(s):

Jeffrey Jones; M.D.; Orthopedic Surgery; Rochester,
NY called by:
Philip J. O’Shea Jr.

Defendant(s):

Wal-Mart Stores Inc.

Defense Attorney(s):

Louise A. Boillat;
Brown Hutchinson LLP;
Rochester,
NY,
for
Wal-Mart Stores Inc.

Defendant Expert(s):

Kevin Lanighan;
Orthopedic Surgery;
East Amherst,
NY called by:
Louise A. Boillat

On Oct. 30, 2012, plaintiff Cynthia Macey, 51, a telephone solicitor, fell while she was shopping in a superstore that was located at 2438 Route 19, in Warsaw. She sustained an injury of an elbow. Macey sued the store’s operator, Wal-Mart Stores Inc. She alleged that the store’s staff was negligent in its maintenance of the premises. She further alleged that the staff’s negligence created a dangerous condition that caused the accident. Macey claimed that she slipped on rock salt that had spilled onto the store’s floor. Macey’s counsel claimed that a videotape, produced by the store’s surveillance system, showed the salt spilling while workers were moving a pallet that contained bags of the salt. He also claimed that the spill occurred 12 minutes prior to Macey’s fall and that several workers walked past the spill during the intervening time.

Macey presented to Wyoming County Community Hospital, in Warsaw. A radiological study revealed that she was suffering a displaced fracture of her left, nondominant elbow’s radial head. She was also suffering a complex tear of the same elbow’s radial collateral ligament. Macey claimed that the injuries were a result of the accident. Her left arm was placed in a sling. Macey claimed that she also sustained trauma that led to her right wrist’s development of carpal tunnel syndrome. On Jan. 2, 2013, Macey underwent open reduction and internal fixation of her left elbow’s fracture. The procedure included reconstruction of the elbow’s radial collateral ligament. She subsequently underwent 30 sessions of physical therapy. The treatment lasted about 11 months. On Sept. 25, 2013, Macey underwent surgical removal of the hardware that was inserted during her first surgery. She also underwent surgical release of her right wrist’s median nerve. On May 7, 2015, she underwent surgical resection of scars that had formed within her left elbow. The procedure also included removal of sutures that had been applied during a prior surgery. She subsequently underwent about 13 weeks of physical therapy. Macey claimed that, as a result of her injuries, she was unable to work during the 13 months that followed the accident. She also claimed that she experiences intermittent residual pain, that she experiences a minor residual diminution of her left elbow’s range of motion, that her pain worsens when she drives her car, and that she often cannot tolerate drives that last longer than 30 minutes. Macey’s treating orthopedist submitted a report in which he opined that Macey may develop residual arthritis that would necessitate partial replacement of the elbow. The doctor also opined that Macey should not lift objects whose weight exceeds 10 pounds. Macey sought recovery of past and future medical expenses, about $27,000 for past lost earnings, and unspecified damages for past and future pain and suffering. The defense’s expert orthopedist submitted a report in which he opined that Macey’s injury resolved, that Macey experiences a merely minimal diminution of her range of motion, and that Macey will not need surgery.

The parties negotiated a pretrial settlement. Wal-Mart Stores, which was self-insured, agreed to pay $190,000.

This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents.