West Palm Beach Partner David Kirsch obtained an excellent result after a two week trial in a potentially dangerous case against one of the top plaintiff’s firms in South Florida. Plaintiff’s counsel requested the jury to award $5,000,000 for a permanent traumatic brain injury allegedly sustained by Plaintiff. After reduction for comparative fault, the jury awarded only $88,532 in this admitted liability case involving a skull fracture.
David represented an adult entertainment venue for an incident in which Plaintiff was physically removed from the club and released such that his head hit concrete. He lost consciousness for several minutes. This was captured on a dramatic video that was repeatedly played during trial. Scans at the hospital confirmed that Plaintiff sustained a skull fracture and a subdural hematoma, which he and his medical experts claimed resulted a permanent traumatic brain injury. Defense admitted fault as Defendant’s floor host/security did not follow proper procedures in engaging with Plaintiff and for the improper release, but also argued comparative fault and the alcohol defense given that Plaintiff’s blood-alcohol level was 0.24.
At trial, Plaintiff claimed that he was trying to leave for his Uber, and he was simply mistaken in trying to walk through a doorway to an employee only area given that there was a exit sign over that door. While defense argued that this was a fire exit for emergencies and that Plaintiff knew where the real exit was, the Defendant’s employees acknowledged that other customers had made that same mistake in the past and there was no “employees only” sign there. However, Plaintiff was repeatedly impeached as he testified very differently at his deposition. While Plaintiff blamed his inconsistent testimony on his brain injury, defense elicited opinions from both sides’ neuropsychologist experts demonstrating that the brain injury as alleged would not result in such memory problems. Plaintiff’s counsel encouraged the jury to apportion all fault against the Defendant.
Plaintiff also claimed that he was laid off from several jobs after the incident because of continued headaches and inability to concentrate, and he sought loss of earning capacity of $927,140 over 30+ years. He also claimed to require future medical care costing $386,949. While defense acknowledged responsibility for his past medical bills and a month out of work while recovering for the skull fracture, we disputed that he had a permanent TBI leading to diminished work capacity or the need for future care. Rather, defense argued that medical records supported that he recovered within about six to nine months. The jury found Plaintiff to be 59% fault for the incident.
The jury awarded total damages of $215,930, which will lead to a recovery of only $88,532.
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