Jun 3 2019

Trial Verdict 2019-17: Morrison Mahoney Partner Joe Desmond and Associate Joe Fogarty Obtain Defense Verdict for Assisted Living Facility

Morrison Mahoney Partner Joe Desmond and Associate Joe Fogarty obtained a defense verdict for their assisted living facility client after a week and a half long jury trial in federal court in Boston. 

The Plaintiff alleged that she tripped and fell on broken asphalt in the driveway of an assisted living facility while working as a visiting nurse.  She was initially diagnosed with severe tenosynovitis in her ankle as shown on an MRI.  After the injury failed to heal, the Plaintiff was diagnosed with Complex Regional Pain Syndrome (CRPS), with a suspected nerve injury in her ankle.  The Plaintiff was treated for CRPS at a pain clinic and ultimately underwent nerve release surgery.  Her surgeon testified that two nerves in her ankle were compressed, with scar tissue attached to the saphenous nerve.  Further surgery to remove the nerve was considered, and the plaintiff testified that amputation was also considered.  The plaintiff testified that her chronic pain led to depression and precluded her from returning to work as a registered nurse even in a sedentary capacity, where she had been earning $85,000 annually for the 6 years prior to her fall.  The plaintiff’s vocational expert testified that she was permanently and totally disabled from all gainful employment as a result of the fall and the cognitive impairment from chronic opiate use, and the plaintiff’s economist claimed that her probable lost-earning capacity was $1.6 million.  The plaintiff further black boarded medical bills of $160,000.

In support of the liability case, the Plaintiff claimed that photographs of the driveway taken by her counsel six months after the fall, and which showed broken asphalt, fairly and accurately represented the condition at the time of the fall.  She further testified that 3 staff members acknowledged the existence of the broken pavement when she reported her injury on the morning of the incident, and she testified that one indicated that she knew someone would get hurt in light of how long the defect had existed.  The incident report completed by our client noted that the plaintiff fell on broken asphalt, though the employee who noted it did not inspect the area and was only reporting what the plaintiff reported.  The defense argued that the photographs represented a condition that developed during the severe winter of 2014/2015 as a result of the harsh winter.   The defendant further offered testimony of several staff members to establish that they were unaware of the defect at the time of the witnessed fall, and an annual maintenance inspection of the premises that was conducted 3 weeks after the fall, which did not note an issue with the pavement.   While the trial judge allowed a defense motion in limine to exclude the subsequent repair of the driveway in the plaintiff’s case in chief, we offered the evidence of the subsequent repair to demonstrate that the condition was remedied in the due course in keeping with a diligent inspection and maintenance program after the defective condition apparently emerged due to the weather over the winter. 

The plaintiff admitted to having been untruthful about her prior back pain and opiate use.  While she had admitted to having had a prior back surgery, she falsely testified at her deposition that she only used Percocet “rarely” in the years preceding the subject incident.  Pharmacy records revealed constant use of Percocet over the preceding decade, and cross-examination of the Plaintiff’s pain treatment doctor revealed the use of between 20,000 and 25,000 Percocet tabs over the preceding decade.  The plaintiff was further forced to admit that she was not truthful about her chronic back pain and related depression that pre-existed. 

The defense further cross-examined her on her identification of the photographs given that she had previously testified that she could not authenticate the photographs as being a fair and accurate depiction of the condition of the asphalt at the time of her fall. 

The jury returned a defense verdict finding that the assisted living facility was not negligent.  

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