Personal Injury Lawyer Blog

35. cont.

Ms. Williams was required to lose weight by Defendants in order to perform her job bartending visibly with the public meeting a female sexual stereotype of looking rail-thin. Defendants claim they are within their rights to require weight loss of Plaintiff who is female.

36. Ms. Williams desires a judicial injunction to be returned to the front bar, visible to the public where she can perform her bartending duties as she did successfully prior to her 5-lb. weight gain. She has suffered irreparable harm of emotional distress, humiliation and has been denied her appropriate position.

37. A judicial injunction is necessary and appropriate at this time returning Ms. Williams to her rightful position at her work site. Such an injunction will avoid conflict between the parties and the possibility of a multiplicity of actions.

WHEREFORE, Plaintiff prays that judgment be entered in her favor and against Defendants as follows:

AS TO THE FIRST CAUSE OF ACTION:

1. That Plaintiff be awarded general and compensatory damages, including prejudgment interest, in an amount according to proof at trial;
2. That Plaintiff be awarded reasonable attorneys’ fees and costs of suit and interest incurred; and
3. That Plaintiff be awarded punitive or exemplary damages against Defendants in an amount according to proof at trial;

4. That this Court award such other and further relief as the Court deems just and proper.

AS TO THE SECOND CAUSE OF ACTION:

1. That Plaintiff be awarded general and compensatory damages, including prejudgment interest, in an amount according to proof at trial;

2. That Plaintiff be awarded reasonable attorneys’ fees and costs of suit and interest incurred; and.

3 That Plaintiff be awarded punitive or exemplary damages against Defendants in an amount according to proof at trial;
4. That this Court award such other and further relief as the Court deems just and proper.

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TOTAL ECONOMIC DAMAGES
Total economic damages if plaintiff gets full-time employment (present value): $1,105,832.30
Total economic damages if Plaintiff gets part-time employment (present value): $1,633,832.30
LIABILITY OF DEFENDANTS

As mentioned above, the police report concluded that the cause of the accident was defendant, Ms. Jones.

ICE OR FROST NOT A FACTOR

Nine days after the crash, Ms. Jones’ father drafted a letter opining that there may have been “black-ice” on the pavement which was a cause of the accident. Even though this letter was signed by Ms. Jones, she testified in her deposition that she had no such opinion or recollection.

The depositions of both CHP investigating officers were taken in this case. Both officers testified that there was no “black-ice” on the edge of the pavement. There was some frost. Both officers testified that the presence of the frost was not a factor in the collision.

One of the investigative officers was Kinley Jong. Officer Jong testified as follows in his deposition at page 40:26-41:19:
Q. “Sir, if you were filling out this page two, having observed the accident and investigated it, would you have marked under roadway Surface, A, B, C, or D?

A. I would have marked A.

Q. And A is dry?
A. Yes.

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D. Nurse Robert Black:

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

On March 25, 2002, at approximately 7:00 a.m., Nurse Brown was replaced by Robert Black, RN. When he did his assessment of the patient at 0810 he noted:

“Does not move legs. Very weak movement to arms.”
.

This was in sharp contrast to Nurse Brown’s assessment at 2400 hours of:

“Full ROM [range of motion]”

In his deposition taken on June 16, 2004, Nurse Black testified as follows on page 17 line 8 through page 18 line 12:

“Q. In fact, you’re trained to call the doctor if there’s a significant change in condition, right?

A. That I am, yes.

Q. Okay. Now if you can compare the assessment done on the night [shift] to the assessment you did on the day [shift] at 0810, was there a change of condition?
A. That’s correct, there are.
Q. In fact, it was a significant change of condition.
[objection omitted]

THE WITNESS: I’m having trouble – – oh, okay. On the neuro, yes, it is. She writes that moves extremities, which would mean that he moved all of his extremities.

MR. COLLINS:
Q. And you wrote he couldn’t move his lower – – in other words, your assessment was he couldn’t move his lower extremities?

A. That’s correct.

Q. And that’s a very significant change in condition.
[objection omitted]

MR. COLLINS:

Q. Am I correct, sir, that’s a very significant change?
A. Based on what is written here it certainly is, yes.
Q. It looks like an onset of paralysis, true?
A. Yes.”
Page 20, lines 1 through 5:

“MR. COLLINS:

Q. Well, sir, let me just ask a question which really doesn’t require that foundation. Did you ever contact a physician regarding Mr. Smith’s apparent onset of paralysis?
A. Not to my recollection.”

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PLAINTIFFS’ MEDIATION STATEMENT
OVERVIEW

This is a sexual harassment lawsuit brought by the four plaintiffs against their former employer, ABC Automobiles dealership, and its Regional Director, Bill Armstrong. The plaintiffs seek the following relief:

1. Compensatory damages
2. Punitive damages
3. Attorney fees
Defendant ABC Automobiles has locationss in four California cities. Its corporate headquarters is in San Francisco and it has been a business since 1973. It reported revenues of over $15,000,000, in 2003.

Bill Armstrong sold his own dealership, “Armstrong Autos” located in Sacramento, to ABC Automobiles on November 9, 2003. He remained at the office and was named Regional Director. Mr. Armstrong retired after the filing of this lawsuit.

FACTS
This case concerns the failure of ABC Automobiles, its corporate officers, and its on-site Regional Director, Bill Armstrong, to prevent the well-documented and obvious sexual harassment of these four plaintiffs at the Sacramento location of ABC Automobiles by one of its employees, David Stevens.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

INCREASED RISK OF FUTURE SEIZURES
Dr. Van Ostrand discusses plaintiff’s increased risk of seizures as follows:
“In regards to her future risk of seizures, the currently available neurology literature is replete with studies demonstrating an increased risk of seizures following a traumatic brain injury. It is possible that she had a seizure at the scene of the subject accident based on the report that she had a clenched jaw at that time. It should also be noted that her post accident EEG was abnormal and may reflect evidence of cortical irritability. Such a finding may suggest an increased risk for the subsequent development of seizures. The risk of not only early but late post-traumatic seizures increasing with the severity of traumatic brain injury. One study investigated 5,984 episodes of traumatic brain injury (Seizures, Vol. 9, Issue 7, pages 453-457, J. Annegers) and found a relative risk of 17.2 for the development of seizures following a severe traumatic brain injury. Although the risk of seizures decreases with each passing year, traumatic brain injury patients are still considered to be at risk of subsequent seizures for 15 or more years following the brain injury.”
INCREASED RISK OF ALZHEIMER’S DEMENTIA
Recent studies have reported that persons who suffer a traumatic brain injury like [plaintiff], have an increased risk of developing Alzheimer’s dementia in old age. Dr. Van Ostrand comments on this in his report, stating the following:

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The other investigating officer was Terrill Pedretti. Officer Pedretti testified as follows in his deposition, at page 19:15 – 20:10:
“Q. Officer, you included in your report that there was ice near the area of this accident, correct?

A. Yes, sir.

Q. Did you actually measure that?

A. I believe we did.

Q. Do you know why that was not included on the diagram done by Officer Jong?.

A. No, I don’t.

Q. Is that something that ordinarily should be included as part of a diagram if it is important enough for you to describe in the report?

A. No. I think the description took care of it, because I don’t feel it had anything to do with the crash.

Q. When did you make that determination?

A. When I drove across the ice in my patrol car at the speed limit and didn’t spin out.

Q. How long after the accident did you do that?

A. The very last thing we did from when we left the scene, I said I want to drive across this and see if it is indeed slick, and it was not.

ADMISSIONS BY MS. JONES
It was generally agreed among the three passengers in the car that the accident was caused by Ms. Jones.
In the right front seat passenger was Andy Thompson. He testified as follows at his deposition at page 21:
“Q. Did you ever hear Ms. Jones tell Plaintiff that she is sorry that she caused the accident?
A. Oh, yeah. Yeah. I mean many times, I mean.”
Ms. Jones herself testified as follows in her deposition at page 25:
“Q. Have you and Plaintiff talked about the accident?

A. Yes.

Q. Have you told her you’re sorry that you lost control of the car?
A. Yes.”

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Finally, at 1604 hours (4:04 p.m.) Dr. T., M.D., happened to drop by Mr. Smith’s room. Mr. Smith’s sister was present in the room. She told the doctor that William was losing feeling in hands. Dr. T. seemed shocked. He quickly did a neurological assessment confirming Mr. Smith’s paralysis.

Dr. T. called for a STAT MRI of Mr. Smith’s cervical and thoracic spine to rule out “epidural abscess.” He called neurosurgery for a consult.

Something was finally begun, but it would prove to be too late to prevent a catastrophic paralysis.

An urgent neurosurgical consult was performed by Dr. S., M.D. He recorded: “the neurological exam reveals that the patient has complete paralysis below the biceps level.” It was also discovered that Mr. Smith’s infection was MRSA.

Dr. S. noted:

“IMPRESSION: This is a patient who is septic with MRSA and has an hitherto undetermined period of paralysis that is, on exam, complete at the C6-7 level. The MRI findings are suspicious for disc space infection at C6-7 which would be seeding of this disc space hematogenously via the sepsis.

PLAN AND DISCUSSION
Since the patient’s neurological deficit is complete, his likelihood of making any sensible or functional recovery with any procedure at this point is low. However, without any procedure, the patient is for certain likely to remain in a state of complete paralysis. Since the duration of the completeness of the deficit is difficult to determine, and the possibility that the completeness may be recent exists, it is reasonable to propose a relatively ‘small’ procedure in an attempt to drain the infection. With this in mind, I reviewed the patient’s MRI scan with the patient’s family and recommended an anterior cervical discectomy at C5-6 and C6-7 without fusion. I would include 5-6 in the procedure since there is some spondylotic bar compressing the spinal canal in this region. I emphasized to the family that the likelihood of a substantial recovery with such a procedure would be low; however, this should be considered a last ditch heroic effort employing an operative procedure that is relatively short in duration and does not involve extensive dissection.”

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The facts in this case can be briefly summarized as follows:

JUNE 26, 2004: ABC AUTOMOBILES REPRIMANDS DAVID STEVENS FOR SEXUAL HARASSMENT

Prior to June of 2004, ABC Automobiles hired a 19-year-old female (not a plaintiff), to work in the Sacramento location. Stevens, who was at all times herein married and middle-aged, began sexually harassing this young girl. He kissed her on her second day at work and told her he loved her. He put his hand on her thigh while training her and repeatedly touched her and winked at her. She was so upset that she went to her doctor to see if the anxiety Stevens was causing her was making her sick. She also complained to her co-worker, Ms. Brown.

Ms. Brown called Amy Webb, head of Human Relations for ABC Automobiles. Ms. Webb investigated the matter and determined that Mr. Stevens was, in fact, sexually harassing the young woman.

Ms. Webb held a meeting attended by both David Stevens and Bill Armstrong in which she reprimanded Mr. Stevens, in the presence of Bill Armstrong, for sexually harassing this young woman. Mr. Stevens apologized. ABC Automobiles found the young woman a new job. Mr. Stevens continued to work for ABC Automobiles at the Sacvramento location. Ms. Webb’s notes of the incident are referenced below.

Although ABC Automobiles should have terminated or transferred Mr. Stevens, the incident at the very least put the ABC Automobiles corporation and Bill Armstrong on notice that Mr. Stevens was a sexual harasser, and that if uncontrolled Stevens might continue to harass females in its Sacramento location.

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SEAT BELT NOT A FACTOR
At the time of the crash, Plaintiff was not wearing his seat belt. This raises two issues:
1. Who should be charged with negligence, if anybody, concerning this?
2. Had he been wearing a seat belt, would it have made a difference?

Under California law, the driver of a vehicle has the duty to make sure her (minor) passengers are wearing a seat belt.

Ms. Jones testified as follows in her deposition at page 28:2-29:4
“Q. Now, when you would ride in that car and there were three, from time to time on other occasions would the person in the backseat come up so you could all talk?

A. Yes.

Q. Was that something you normally did?

A. Yes. I think more so on back roads. We were on the freeway, we wouldn’t do that. But on back roads, yes.

Q. Because the person way in the back can’t hear what the front two are saying essentially?

A. Correct.

Q. Because the person way in the back can’t hear what the front two are saying essentially?

A. Correct.

Q. Okay. Do you recall that night before the accident whoever was in the backseat was if you were on a back road they would be up near you so they could be in the conversation?

A. I don’t recall specifically.

Q. On other occasions on the back roads would the person in the backseat come up so that there could be a conversation?
A. Yes.

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