Pennsylvania Verdicts

Plaintiff(s):

Tamika Ortiz (Female, 41 Years)

Plaintiff Attorney(s):

Thomas J. Gibbons;
Gibbons Legal, P.C.;
Philadelphia,
PA,
for
Tamika Ortiz

Plaintiff Expert(s):

David Rubenstein; M.D.; Orthopedic Surgery; Wynnewood,
PA called by:
Thomas J. Gibbons ■ Raymond Wisdo; D.C.; Chiropractic; Woodlyn,
PA called by:
Thomas J. Gibbons

Defendant(s):

Ahold U.S.A. Inc., 

Giant Food Stores LLC, 

Giant Food Stores Inc., 

Ahold U.S.A. Holdings Inc.

Defense Attorney(s):

Joseph M. Toddy;
Zarwin Baum DeVito Kaplan Schaer Toddy, P.C.;
Philadelphia,
PA,
for
Giant Food Stores LLC, Giant Food Stores Inc. ■ None reported;

for
Ahold U.S.A. Inc., Ahold U.S.A. Holdings Inc.

Defendant Expert(s):

David Glaser;
Orthopedic Surgery;
Philadelphia,
PA called by:
Joseph M. Toddy

On Dec. 26, 2012, plaintiff Tamika Ortiz, 41, slipped and fell in a Giant Food Stores supermarket, in Delaware County. She claimed that she had slipped on water that she had tracked into the store due to a trace amount of snow. She alleged that she suffered a shoulder injury. Ortiz sued Giant Food Stores Inc. on claims of negligence in maintaining the premises, creating a dangerous condition. (Ahold U.S.A. Holdings Inc., which was believed to be Giant’s parent company, was also sued, and was later dismissed by stipulation.) (The case resulted in a mistrial during opening statements after the defense cited precluded evidence in its opening. A new trial started the following day, with a new jury chosen.) Ortiz’ counsel argued, given that precipitation occurred about one hour before Ortiz entered the store, Giant failed to anticipate the potential dangers of tracked-in water by not placing mats near the entrance. The store’s counsel maintained that there was no notice that there was any water on the floor, since Ortiz tracked in the water; therefore the store had no knowledge of the danger. Moreover, 22 other customers were seen on surveillance video walking through the exact same area as Ortiz’s fall in the four minutes before and the three minutes after Ortiz’s fall. None of them tracked water into the store, and none of them slipped and fell. The defense argued a trace amount of snow did not necessitate the placement of mats in the store, which pose as tripping hazards.

Ortiz denied medical treatment at the store following the fall. Later that day, complaining of pain to her left (non-dominant) shoulder and arm, and to her lower back, she went with her husband to an emergency room. An X-ray of the elbow was negative, and examinations of her back and shoulder were normal. She was discharged with prescriptions for pain medications and muscle relaxants. Twenty-seven days later, Ortiz, with continuing complaints (and with buttocks pain), presented to a chiropractor, with whom she treated about 27 times over six to eight months. During that time, she treated with an orthopedic surgeon and underwent MRIs, which allegedly showed a shoulder impingement, shoulder bursitis, and a tear of her subscapularis tendon. In August, Ortiz underwent a shoulder arthroscopy, during which time the surgeon diagnosed a 20 percent tear of the subscapularis. Other than follow-up exams, no further treatment was administered. Ortiz sought to recover a Department of Public Welfare lien of $5,300 and about $23,000 in chiropractic bills. Ortiz’ orthopedic surgeon and chiropractor causally related her shoulder impingement to the accident. Her orthopedic surgeon could not causally relate her rotator cuff tear to the fall, and opined that she made a near complete recovery. Ortiz claimed that she experiences occasional minimal pain which she treated with over-the-counter medication. She sought damages for past and future pain and suffering. The defense noted that Ortiz declined medical attention at the store, had a negative X-ray and a completely normal examination at the emergency room, and waited 27 days before seeking further treatment. The defense cited Ortiz’ medical history, in which she had prior left-shoulder complaints in 2006. The defense’s expert in orthopedic surgery compared 2006 and 2013 MRIs, and determined that they were identical. The expert concluded that Ortiz had suffered no shoulder injury from the fall. The defense, in playing video surveillance of Ortiz’ fall, maintained that she fell on her buttocks, so it was not possible for her to have injured her shoulder. Ortiz’ counsel claimed that Ortiz braced herself when she fell and in turn jammed her shoulder upward.

The jury found that Ortiz was 40 percent liable and Giant was 60 percent liable. She was determined to receive $65,000, which was accordingly reduced to $39,000.

Actual Award:

$39,000

Judge:

Marlene F. Lachman

Trial Length:

5
 days

Trial Deliberations:

3.5
 hours

Jury Vote:

12-0

Jury Composition:

4 male/ 8 female

This report is based on information that was provided by plaintiff’s counsel. Defense counsel declined to contribute. Ahold U.S.A. Holdings Inc. and Ahold U.S.A. Inc. were not asked to contribute.