$6.9M Slip-&-Fall Verdict: Mazzei & McBryant Reveal Winning Strategy
This episode of the Colorado Trial Lawyer Connection podcast features attorneys Jessica McBryant and Jared Mazzei, who discuss their successful $6.9 million verdict in a slip-and-fall case at a Kohl’s store. Jared Mazzei, new to the podcast, shares his background in trial work, transitioning from criminal law in New Jersey to civil law in Colorado. They detail the facts of the case, where their client slipped on a residue left by a Kohl’s employee removing decals, resulting in a fall captured on video. The defense initially denied liability but later admitted it.
The discussion then shifts to the client’s complex injuries, which included both physical and psychological impairments, such as a mild traumatic brain injury, visual dysfunction, occipital neuralgia, generalized anxiety disorder, and functional neurological symptom disorder (FND), a rare condition causing involuntary movements, impaired gait, and stilted or robotic speech. The condition was diagnosed by multiple providers and confirmed as permanent. They explain their strategy for presenting these injuries to the jury, with Jessica presenting the physical injuries and medical testimony, while Jared handled the psychological injuries and rebutted the malingering defense. This split helped the jury conceptualize the complex, overlapping symptoms. A significant challenge was the defense’s claim of malingering, which they countered by using the client’s 1,700-page journal and expert testimony to highlight inconsistencies in the defense’s arguments. The attorneys also share insights into their trial strategy, including the use of compelling video evidence of the fall and the client’s post-injury symptoms, and their approach to arguing damages, which resulted in substantial awards for non-economic damages and physical impairment.
1. Insights from the Case
Incident and Liability: The client slipped on residue left by a Kohl’s employee who was removing decals without placing required caution signs despite using a floor-cleaning solvent. Surveillance footage showed the client’s feet slipping out from under her, followed by her face striking an end table and her head hitting the tile floor. This video was a central piece of evidence played repeatedly during trial. The defense initially denied liability before a late admission, which the attorneys leveraged strategically.
Complex Injuries: The client suffered a combination of physical and psychological injuries, including a mild traumatic brain injury (TBI), visual dysfunction, occipital neuralgia, generalized anxiety disorder, and functional neurological symptom disorder (FND), a rare condition causing involuntary movements, impaired gait, and stilted or robotic speech. The condition was diagnosed by multiple providers and confirmed as permanent. This required the attorneys to strategically divide the presentation of the case to the jury, with Jessica presenting the physical injuries and medical testimony, while Jared handled the psychological injuries and rebutted the malingering defense. This split helped the jury conceptualize the complex, overlapping symptoms.
Challenging “Malingering” Claims: The defense’s expert accused the client of faking her symptoms (malingering). The plaintiff’s team effectively countered this by using the official test manual (MMPI3) to demonstrate that the defense expert’s interpretation of the psychological testing was incorrect. Jared prepared a PowerPoint comparing the MMPI-3 test manual’s actual score cutoffs against the defense expert’s testimony, exposing major inconsistencies. His cross-examination was key in dismantling the malingering claim. They also used powerful video evidence of the client’s involuntary movements and struggles in the hospital to prove the legitimacy of her FND symptoms. The plaintiff’s team introduced personal videos showing the client in the hospital struggling to walk, arching her back involuntarily, and speaking with significant difficulty. These visuals powerfully countered the malingering narrative.
Damages Awarded: The jury awarded $6,945,040, broken down as follows:
- Non-Economic Damages: $1,000,040
- Economic Damages: $650,000
- Physical Impairment: $4,875,000
This large verdict demonstrated the jury’s belief in the permanence and severity of the client’s injuries.
2. What We Have Learned from the Case
The Power of Video Evidence: The attorneys highlighted the immense value of both the surveillance video of the fall and the personal videos of the client’s post-injury symptoms in the hospital. These visual aids were crucial for dismantling the defense’s “malingering” argument and for helping the jury understand the severity of the client’s condition.
Strategic Use of Expert and Rebuttal Witnesses: The plaintiff’s team’s decision to have their own neuropsychologist testify as a rebuttal witness was a powerful strategic move. This allowed them to directly refute the defense expert’s claims by referencing the official test manual and providing the correct interpretation of the data, which was highly persuasive to the jury.
Arguing for Damages Creatively: The attorneys used a “per diem” approach to calculate non-economic damages, framing the client’s suffering as a full-time job. For physical impairment, they used the client’s impairment rating to argue that the defense was seeking a “discount on her life,” which was a compelling and humanizing argument.
The Double-Edged Sword of Client Journals: The client’s detailed 1,700-page journal was a valuable tool for understanding her daily struggles, but it also contained entries the defense used to argue malingering. This highlighted the importance of carefully managing and preparing client-kept records, as they can be used both for and against the case.
The Importance of Trying Cases: The attorneys emphasized the necessity of going to trial when insurance companies are being unreasonable, even in complex and challenging cases involving psychological injuries. The successful verdict in this case proves that a well-prepared and strategic approach can overcome the perceived difficulties and secure justice for the client.
FAQ Frequently Asked Questions
What were the key facts of the slip-and-fall incident at Kohl’s? The client slipped on a residue left by a Kohl’s employee who was removing decals from the floor. No caution signs were put up, and the area was not properly cleaned with soap and water after using a product similar to “Gooby Gun”. Surveillance footage showed the client’s feet slipping out from under her, followed by her face striking an end table and her head hitting the tile floor. This video was a central piece of evidence played repeatedly during trial. The entire incident was captured on video.
What were the client’s injuries? The client suffered both physical and psychological injuries.
Physical Injuries: A mild traumatic brain injury (TBI) leading to visual dysfunction (specifically convergence spasms), occipital neuralgia (nerve damage), and a TMJ injury. The visual dysfunction and occipital neuralgia were determined to be permanent conditions.
Psychological Injuries: Generalized anxiety disorder, a trauma stress unspecified disorder (due to hypervigilance and sympathetic arousal), and functional neurological symptom disorder (FND), a rare condition causing involuntary movements, impaired gait, and stilted or robotic speech. The condition was diagnosed by multiple providers and confirmed as permanent. The FND was diagnosed by multiple doctors and was also deemed a permanent condition.
How was the defense’s “malingering” claim addressed at trial? The defense’s neuro-psychologist, Jennifer Bugright, initially claimed the client’s issues were pre-existing anxiety and depression, and later asserted that the client was “faking” or “malingering” for financial gain, based on psychological testing and journal entries. The plaintiff’s team countered this by:
- Highlighting that the defense did not provide Bugright with all of the client’s pre-incident medical records.
- Using the MMPI3 manual to show that Bugright’s interpretation of the test scores was incorrect.
- Presenting videos of the client’s involuntary movements and struggles in the hospital to demonstrate the reality of her symptoms.
- Having their neuro-psychologist, Dr. Angela Eastfold, testify as a rebuttal witness to explain the true meaning of the test scores and the nature of the functional neurological disorder.
Jared prepared a PowerPoint comparing the MMPI-3 test manual’s actual score cutoffs against the defense expert’s testimony, exposing major inconsistencies. His cross-examination was key in dismantling the malingering claim. The plaintiff’s team introduced personal videos showing the client in the hospital struggling to walk, arching her back involuntarily, and speaking with significant difficulty. These visuals powerfully countered the malingering narrative.
What was the significance of the client’s 1,700-page journal? The client kept a detailed journal of her experiences, which the defense used to try and prove malingering by pointing out instances of shopping or vacations. However, the plaintiff’s team used the journal to explain the client’s daily struggles and to show that her pain levels ebbed and flowed, countering the defense’s out-of-context claims. While the journal was a double-edged sword, it ultimately helped to show the client’s genuine experience.
How were damages argued, particularly for non-economic and physical impairment?
Non-Economic Damages: The team used a per diem method, calculating the client’s pain and suffering as a “full-time job” based on the average hourly rate of a Kohl’s sales associate. They asked for $1.04 million, aligning with caps.
Physical Impairment: They focused on the 31% impairment rating from Dr. Brown and presented images of all the activities the client could no longer do. They argued that the defense was seeking a “discount” on the client’s life, similar to Kohl’s coupons, and that the 31% impairment was worth $9.8 million. The jury awarded $4,875,000 for physical impairment.
The jury awarded $6,945,040, broken down as follows:
- Non-Economic Damages: $1,000,040
- Economic Damages: $650,000
- Physical Impairment: $4,875,000
What role did video evidence play in the trial? Two types of video evidence were crucial:
The Fall Video: Surveillance footage showed the client’s feet slipping out from under her, followed by her face striking an end table and her head hitting the tile floor. This video was a central piece of evidence played repeatedly during trial due to its compelling nature.
Videos of Client’s Symptoms: Videos taken by the client’s husband in the ER showed her functional neurological symptom disorder, including arching her back, stuttered speech, and difficulty walking. The plaintiff’s team introduced personal videos showing the client in the hospital struggling to walk, arching her back involuntarily, and speaking with significant difficulty. These videos were saved for witness testimony and were highly impactful in demonstrating the reality of her symptoms and powerfully countered the malingering narrative.
What advice was given for handling similar cases?
- Psychological Injuries are Real: Emphasize that these conditions are legitimate and should be litigated accordingly.
- Try Cases: Encourage lawyers to go to trial if they believe in their client, regardless of the perceived difficulty.
- Video Documentation: Consider filming clients with unusual disorders, especially those affecting movement or speech, as visual evidence can be highly compelling.
- Understand Medical Manuals: Deeply understand diagnostic manuals (like DSM5) and testing manuals (like MMPI3) to effectively cross-examine defense experts.
