Case details

Failure to address known slippery condition caused fall: plaintiff

SUMMARY

$3195770

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
arm, carpal tunnel syndrome, fracture, neurological, reflex sympathetic, scapholunate ligament, tear, torn, triangular fibrocartilage complex, wrist
FACTS
On Nov. 7, 2014, plaintiff Ilona Mikaelian, an employee at Brighton Collectibles, one of the stores at the Glendale Galleria, a large three-story regional shopping center and office complex located in downtown Glendale, discarded trash and recyclables in a designated trash room. As she was exiting the trash room with a co-worker, Mikaelian slipped and fell backward, landing on both hands. She claimed to her hands and wrists. Mikaelian sued the owner and manager of the mall, Glendale I Mall Associates LLP, and the companies contracted to maintain and clean the mall, ERMC Inc. and ERMC Property Management Company of Illinois LLC. Mikaelian alleged that the defendants failed to properly maintain the subject area, creating a dangerous condition. Brent Gardner, General Growth Properties Inc. and Optimal Biofuels Inc. were also initially named as defendants, but they were ultimately removed from the case. Mikaelian and her co-worker both claimed that after the accident, they noticed that Mikaelian’s clothes were wet with grease and dirt. Mikaelian’s co-worker testified that, within the subject trash room, there was a cooking oil recycling bin used by the food court workers to dispose of used cooking oil and that there was an oily substance on the floor at the time of the incident. Plaintiff’s counsel contended that no inspections had occurred on the day of the incident and that Glendale I and the ERMC entities did not have reasonable inspections of the property to discover unsafe conditions. However, counsel contended that on Oct. 14, 2014, less than month before the incident, an email was sent to Glendale I, advising them that there was oil on the floor. It was also advised that although the cooking oil recycling bin was not leaking, the food court employees were not properly disposing of the oil, “making a mess everywhere.” Plaintiff’s counsel argued that, based on the email, the defendants knew of the dangerous condition, but failed to take steps to correct it. The plaintiff’s accident reconstruction expert conducted an informal site inspection and a formal one. He opined that the subject trash room was in an unsafe condition and concluded that there was an oily substance at the time of the incident. However, he testified that the substance could be difficult to perceive and could go easily go unnoticed. Based on his findings, the expert opined that the floor of the trash room presented an unreasonable risk of harm and that because of the email, the defendants had actual notice that grease/oil was not being properly disposed of in the trash room. In addition, he opined that the defendants failed to have proper floor inspection procedures to proactively identify. Plaintiff’s counsel noted that despite testifying that housekeeping performed inspections once an hour, the housekeeping manager could not verify that any inspections had occurred on the day of the subject incident. The defense’s retail industry expert opined that Glendale I and the ERMC entities had proper floor inspection procedures wherein security patrol officers inspected the subject trash room every 15 minutes and the housekeeping manager inspected it every hour. The expert also opined that documentation of inspections was not required. In response, plaintiff’s counsel noted that the defense’s liability expert never reviewed nor did he know whether the defendants had any written policies or procedures regarding how and when inspections were to be performed. Counsel also noted that the defense expert did not conduct a site inspection. Plaintiff’s counsel also noted that while there was a security guard for Galleria I on duty the day of the incident that was responsible for patrolling the mall, no one could recall the name of that person nor was that guard identified in discovery. In addition, plaintiff’s counsel contended that, based on the testimonies of the two managers, it took the security manager seven minutes to cross the entire mall and it took the housekeeping manager 15 minutes to cross the mall. Counsel argued that based on that testimony, there was no way the security guard on patrol could complete his entire round of top and bottom floors of the mall, the food court, the restrooms, and inspect the subject trash room every 15 minutes., Mikaelian injured her wrists and hands. To her left wrist and hand, she sustained a non-displaced, intra-articular fracture of the distal radius; a scapholunate ligament tear; and triangular fibrocartilage complex (TFCC) tears. To her right wrist and hand, she sustained a bone contusion of the first metacarpal joint, compaction of the hamate, and a non-displaced fracture of the fourth and fifth carpal-metacarpal joint. In addition, she sustained medial epicondylitis to both elbows. Mikaelian claimed that her resulted in carpal tunnel syndrome and early complex regional pain syndrome, also known as reflex sympathetic dystrophy or causalgia, a chronic pain condition, to both hands and wrists. She also claimed her right wrist developed De Quervain’s tenosynovitis, a painful condition that affects the tendons on the thumb side of the wrist. Mikaelian claimed that she felt pain in both of her wrists immediately after the incident. She was transported by ambulance to Glendale Memorial Hospital, in Glendale, where she complained of left wrist and right thumb pain. By the time she got to the emergency room, her left hand and wrist hand become very swollen, but her X-rays were read as normal, so she was discharged with a left hand brace. Three days later, Mikaelian proceeded to an urgent care facility with complaints of continued pain in both hands, with it being worse on the left. X-rays were again performed, which showed a questionable fracture at the base of the fifth metacarpal. Workers’ compensation referred Mikaelian to Dr. D. Levi Harrison, an orthopedic hand specialist who reviewed her records and performed an examination. Harrison ultimately determined that Mikaelian suffered a scapholunate ligament tear, TFCC tears, and a non-displaced, intra-articular fracture of the distal radius of the left wrist. Surgery was recommended for the scapholunate ligament tear, but Mikaelian never underwent the procedure. In his reports, Harrison noted that all of Mikaelian’s complaints and were due to her fall and placed Mikaelian on work restriction. In regard to her complaints of ongoing and persistent pain in her hands and wrists, Mikaelian was examined by another orthopedic hand specialist, Dr. Steven Lin, in the absence of Harrison, in March 2015. Lin noted that there was possibly a “re-injury sometime in January to her right hand.” However, Lin indicated in his report that he felt that Mikaelian was developing a “bit of hypersensitivity syndrome of early CRPS.” Since Mikaelian only saw Lin once, and her care was transferred from Harrison to a third orthopedic hand specialist, Dr. Kenneth Sabbag, the early CRPS was not explored further. Mikaelian claimed that by the time she was seen by Sabbag, the symptoms to her right wrist/hand were worse than her left. Sabbag examined Mikaelian and recommended conservative treatment, including physical therapy. In his reports, Sabbag noted that all of Mikaelian’s complaints and were due to her fall. By August 2016, Mikaelian’s care was transferred to Dr. Edward Stokes, a general orthopedic surgeon. He examined Mikaelian and recommended continuing conservative treatment. In his reports, Stokes noted that, in his medical opinion, Mikaelian’s injury arose out of, and occurred during, the course of Mikaelian’s normal employment and that her continuing problems can be “attributed entirely, wholly and solely” to the on Nov. 7, 2014. Stokes also placed Mikaelian on total temporary disability. Despite ongoing treatment, Mikaelian claimed her pain worsened. All of her doctors, including the orthopedic hand specialists and her primary care physician, searched for etiology of the continued pain and due to a positive ANA blood test, autoimmune diseases — such as Raynaud’s disease, lupus, and rheumatoid arthritis — were explored. In addition, diabetic neuropathy was also considered, but no conclusive diagnosis was made. Due to the alleged worsening of her condition and persistent pain, Mikaelian sought a second opinion outside of workers’ compensation. She presented to Dr. Edwin Ashley, an expert orthopedic surgeon with a subspecialty in hands. Ashley ultimately opined that Mikaelian did have CRPS and continued carpel tunnel syndrome to both wrists. However, he determined that Mikaelian was unable to proceed with the carpal tunnel surgery until the CRPS was resolved. Ashley referred Mikaelian to Dr. Steven Richeimer, a pain management specialist who is also an expert on CRPS, whom the plaintiff retained, but did not call at trial. Richeimer performed tests and also opined that Mikaelian was suffering from early CRPS. Richeimer developed a treatment plan that included ganglion blocks and ketamine infusions. However, he began Mikaelian on a more conservative treatment of ketamine cream and prescription medication. At trial, Ashley confirmed the CRPS diagnosis and attributed Mikaelian’s ongoing symptomology to the incident. He testified that he was unable to proceed with the surgery, as the surgery cannot be performed on patients with CRPS. He also opined that Mikaelian’s CRPS could get worse. In addition, he denied that Mikaelian suffered in any way from Raynaud’s disease, lupus, or rheumatoid arthritis. The plaintiff’s expert life care planner and pain management specialist, Dr. David Fish, testified about how he examined Mikaelian and also believed the diagnosis of CRPS. He also opined that Mikaelian’s condition was worsening and that, to a reasonable degree of medical certainty, the from the incident caused the bilateral CRPS. Fish also denied that Mikaelian suffered in any way from Raynaud’s disease, lupus, and rheumatoid arthritis, and dismissed that there was any sort of “re-injury” that occurred in January 2015 as being the cause of the CRPS. Fish testified that his life care plan for Mikaelian included home care, ketamine infusions and a spinal cord stimulator, among various other items. He explained that he has lectured and written articles on spinal cord stimulators and that he routinely performs the surgery himself. He also stated that everything in the life care plan is identical to what he recommends to his own patients with CRPS. Mikaelian’s life care plan totaled $4.9 million dollars, but she had not yet started the ketamine infusions or had the spinal cord stimulator implanted. Since the workers’ compensation lien amounts for past paid medical costs were not stipulated to, plaintiff’s counsel called the director of workers’ compensation for Mikaelian’s employer to testify about the entire workers’ compensation process and the many layers of review. He stated that if medical care and treatment was approved and paid for by workers’ compensation, then it was definitely related to the incident. He also testified that under workers’ compensation provisions and the laws, injured employees are entitled to recover if the injury was caused as a result of negligence or as a result of a third party. In essence, he told the jury that workers’ compensation is seeking recovery for the past medical costs that it paid. Mikaelian sought recovery of $78,173 in past medical costs, $4,930,391 in future medical costs, $138,117 in past loss of income and $444,039 in future loss of income. She also sought recovery of $6.5 million in non-economic damages for her past and future pain and suffering. Defense counsel cross-examined Harrison, the plaintiff’s workers’ compensation-referred hand specialist, but the surgeon ultimately testified that it was unsurprising that Mikaelian developed such significant symptoms in her right hand given her initial inability to use her left hand. He explained that it is very common to develop symptoms in the opposite hand, sometimes worse than the initially injured hand, due to overcompensation. The defense’s retained orthopedic expert opined that all of Mikaelian’s symptoms should have resolved within six to eight weeks of the incident and that any complaints after that was not due to the incident and possibly due to lupus. The expert also opined that there was no sign of CRPS during his examination of Mikaelian in 2017. The expert further testified that the “re-injury,” as noted by Lin, was a fracture to Mikaelian’s right hand. After defense counsel rested, plaintiff’s counsel brought in Mikaelian’s treating rheumatologist to rebut the defense’s insistence that the cause of Mikaelian’s ongoing pain was not CRPS, but lupus. The rheumatologist opined that Mikaelian did not have lupus. Plaintiff’s counsel also responded by arguing that there was no “re-injury” and that, consistent with the defense’s orthopedic expert’s own testimony, an X-ray taken in January 2015 showed that there was a “healing” fracture in the right hand at the base of the fifth metacarpal. During the defense’s expert ultimately conceded that the fracture must have occurred six to eight weeks prior to January 2015 for it to be considered “healing.” In closing, plaintiff’s counsel noted that seven doctors all concluded that Mikaelian’s ongoing and present condition was caused by the subject incident and that the only doctor that disagreed was the defense’s expert.
COURT
Superior Court of Los Angeles County, Van Nuys, CA

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