News from Around the State: Trials and Verdicts

WDC Journal Edition: Winter 2018

Brandon P. Massio v. David A. Bayer, et al.
Oconto County Case No. 17-CV-46
September 2018


Plaintiff was injured while assisting a friend loading a racing truck into a trailer. To fit inside the trailer, the large wheels and racing tires were removed. The vehicle’s brakes were also removed. Smaller wheels and tires were put on, which were too small to accommodate brakes. On the day of the accident, the plaintiff stood inside the trailer to guide the driver into the narrow opening, as he had done twice before. The driver over-accelerated and the truck became stuck, pinning the plaintiff between a golf cart and the truck’s front bumper for 30 minutes. Plaintiff sustained a severe crush injury to his quadriceps muscles, with permanent partial disability in both legs. The parties stipulated to past medical specials of $60,482.29. The driver’s insurance company settled for its $300,000 policy limit, and the case proceeded to trial against the plaintiff’s underinsurance carrier, American Family Mutual Insurance Company.

The issues at trial included contributory negligence of the plaintiff and the value of past and future loss of earning capacity. The plaintiff could no longer work as a paper mill technician, but was placed in a lower paying non-union position as a project manager.

Plaintiff’s lowest pre-trial demand was $600,000. American Family’s highest pre-trial offer was $250,000.

At trial, the plaintiff asked for $1,000,000 for past and future pain, suffering, and disability, and approximately $900,000 for past and future loss of earning capacity. Defendant’s experts posited a loss of earnings of only $130,000.

A jury awarded $562,482.29, and attributed 30% contribution on the plaintiff. After reduction for contributory negligence and the underlying policy, the recovery against American Family was $93,737.60.

For more information, please contact Brian D. Anderson at banderson@eversonlaw.com


Estate of Mary J. Hommen, et al. v. Wisconsin Injured Patients and Families Compensation Fund, et al.
Dane County Case No. 17-CV-300
July 2018

This was a medical malpractice wrongful death case in which the deceased patient was a 43-year-old female who presented to the emergency department with a primary complaint of severe abdominal pain in the right lower quadrant of her abdomen. Diagnostic testing revealed a cystic mass on the right ovary. The defendant Ob/Gyn diagnosed the patient with a right ovarian torsion and recommended laparoscopic surgery to remove the right ovary and fallopian tube. The surgery was completed later the same day. Due to the patient’s prior experience with ill-effects from anesthesia, the patient was kept overnight in the hospital so that she could be carefully observed. The patient was discharged on the first post-operative day in the afternoon. At approximately noon on the second post-operative day, the patient died. An autopsy determined there was a perforation of the small bowel. Material that leaked from the small bowel caused a bacterial peritonitis, which lead to sepsis and death.

Perforated bowel is a well-known complication of this type of laparoscopic surgery, and thus plaintiffs focused on the post-operative care and presented expert medical testimony that the standard of care was violated for not diagnosing and treating the bowel perforation prior to the patient’s discharge. The defense presented expert medical testimony that the standard of care was met.

There were no pre-trial demands or offers. A seven-day jury trial led to a defense verdict.

The jury found that the Ob/Gyn physician was not negligent as to the patient’s post-operative care.

For more information, please contact Stephen O. Murray at smurray@cnsbb.com