Lessons from Don’t Eat The Bruises, Trial by Human, and Witness Preparation Yield Outstanding Plaintiff Outcome
Trial Guides congratulates Brian Kim and Maureen Hennessey of Savin Bursk Law on their recent $18.79 million verdict in Santa Monica, California. This was a slip and fall case in which their client, Jonathan Choto, suffered a lumbar spine injury requiring a spinal cord stimulator. Mr. Choto did not suffer a TBI – this was a pure orthopedic injury case. Jonathan Choto was 28 years old at the time of the incident, and had a history of two prior lumbar spine surgeries before the fall at McDonald’s (from a prior work injury).
This verdict is considered one of the largest slip and fall jury verdicts—if not the largest—in the country for a lumbar spine injury that did not result in quadriplegia.
Verdict Highlights
Plaintiff’s Attorney: Brian J. Kim and Maureen Hennessey
Case Name: Jonathan Choto v. Dorothy D. Inc. dba McDonald’s Inc.
Location: Santa Monica, California
Injury: Spine Injury (Spinal Cord Stimulator)
Jury Verdict: $18,794,132.14 ($16 million in future non-economic damages for pain and suffering alone)
Case Details
On May 1, 2018, Jonathan Choto arrived at the Lomita McDonald’s around 6:00 a.m. to buy an orange juice. As he walked towards the exit, order in hand, he slipped and fell on liquid that had leaked onto the floor from a garbage bag that was left behind by a maintenance worker who was taking out the trash. Jonathan’s feet flew out in front of him, causing his body to form a V-shape. Jonathan landed directly onto his lower back, a prior surgical site, which absorbed the entire force of the fall.
Three years before the McDonald’s incident, in 2015, Jonathan suffered a work injury on a production set while lifting heavy camera equipment as part of his job as an assistant cameraman. He herniated two discs in his lumbar spine. Jonathan was treated through workers’ compensation, eventually undergoing two separate back surgeries in 2016. The second back surgery occurred just sixteen months prior to the McDonald’s incident, in December 2016. The undisputed evidence in the case indicated that Jonathan was monitored for nine months post-surgery, and all complaints of low back pain and radiculopathy had resolved.
As a result of the incident at McDonald’s, Jonathan’s lumbar spine and nerves were “lit up” or aggravated by the fall. While there was no apparent disc injury, the plaintiff’s team argued that the prior healed surgical sites were significantly disrupted from the trauma, causing damage to nerve roots in the already susceptible lumbar spine. This theory was supported by objective testing such as EMGs, positive neurological testing, subsequent intraoperative findings showing nerve damage. As a result of the fall at McDonald’s, Jonathan eventually underwent surgery for placement of a permanent spinal cord stimulator.
The Trial
In general Brian and Maureen aimed to keep the trial as simple as possible: “The defense wanted to make the case a battle of the experts where confusion and mud-slinging would disorient and wear down the jurors. We were not going to let that happen. So we made this case simple, lightning fast, and based on common sense.”
The five-day jury trial was kept short, sweet, and simple. The plaintiff’s team called six total live witnesses (plaintiff, three damages witnesses, and two medical experts (spine surgeon and pain management doctor). They also played two videotaped depositions of McDonald’s employees and one treating doctor deposition.
In storytelling fashion, each witness played a separate and unique role in bringing Jonathan’s injury to life – showing how something as innocuous sounding as a slip and fall could so profoundly change a person’s life. “For us, simplicity was key,” explains Brian. “Rather than focusing on tedious and monotonous medical information, we focused on Jonathan’s life before and after the fall. If our damages witnesses were credible, they could bring the medical records to life showing the human impact of this injury better than the doctors could.”
The Santa Monica jury awarded the plaintiff a $18.79 million verdict in damages: $365,962.59 for past medical expenses; $654,269.55 for future medical expenses; $1,773,900.00 for past pain and suffering; and $16 million for future pain and suffering.
Three Pivotal Moments
Of course the trial and the verdict are only as good as the small parts that comprise the whole. “Everybody just looks at the result. They see the verdict but they don’t often focus on the small details that make all the difference between a good verdict and a great one,” Brian says. When dissecting the verdict, the plaintiff’s team breakdown their success to three pivotal moments at trial that made all the difference.
1. Voir Dire
Santa Monica is known for conservative jurors and low verdicts. Many potential jurors were generally skeptical—and some outright hostile—towards slip and fall cases. Many jurors expressed feelings and beliefs that slip and fall accidents by definition meant somebody wasn’t paying attention to their surroundings. Other jurors expressed attitudes that slip and falls were “silly” and viewed the case with high suspicion and distrust.
Another concern was Jonathan’s prior work injury. During jury selection, the immediate reaction of prospective jurors was to try to apportion some of the damages to the work injury predating the McDonald’s incident. Brian and Maureen’s strategy was to select a smart jury that would understand and follow the law, particularly instructions pertaining to an unusually susceptible plaintiff and the aggravation of a preexisting injury.
The plaintiff’s team attribute jury selection as one of the most important aspects of the trial. Maureen Hennessey selected the jury, which took two days. “This was only her second time ever picking a jury and she nailed it,” says Brian. “Maureen connected with the jury on a deeper level. Instead of talking at jurors, she talked with them.” Inspired by Nick Rowley’s concepts of “brutal honesty” and “reflective feeling” in Trial by Human, Maureen created a place of trust where jurors were free to be brutally honest about their life experiences, attitudes, and beliefs. This allowed the trial team to weed out jurors with bias that could adversely impact the case and to simultaneously keep jurors that could keep an open mind and cared about justice. They had over a dozen cause challenges and exercised every peremptory challenge. After two days of intense jury selection, the trial team found a group of human beings that could listen to Jonathan’s story and deliver full justice.
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2. Opening Statement
Because of the stigma the jurors expressed regarding slip and falls, the plaintiff’s team restructured the traditional way of doing opening statement. “The idea was to have jurors first focus on Jonathan Choto – the plaintiff and person in front of them — rather than a “silly” slip and fall,” explains Brian. ”We were not going to lead with the incident because we believed doing so would cheapen Jonathan’s life-changing event.” This framework to opening statement was influenced by Keith Mitnik’s Don’t Eat the Bruises: by taking on the defense’s “favorite facts” head-on at the outset of trial and building them into strengths of the case.
Brian’s opening statement led with the defense’s favorite fact that Jonathan did not look hurt in the courtroom. “I had Jonathan stand up by himself in the middle of the courtroom. Everyone was watching him. I asked the jury if they saw what I saw. A normal looking person.” Brian told the jury, “Jonathan walks. He can talk. He doesn’t hobble around using a cane. He sits there and looks totally fine. But that’s the furthest thing from the truth. Jonathan doesn’t have an injury that you can assess just by looking at him from the outside.” Brian then told the jury that if they each had x-ray vision, and the ability to see inside of Jonathan, they would see a machine inside of his body that was shocking his brain and spine so that he could be there. He was half man, half machine. This approach removed any doubt as to whether or not Jonathan had truly suffered a serious, lifelong injury. It also reinforced the notion that it was unfair to judge the severity of Jonathan’s injuries just by looking at him from the outside.
Brian then took the defense’s other favorite fact – Jonathan’s prior work injury and spine surgeries – and explained to the jury that Jonathan’s prior medical history was the exact reason why the fall had such devastating consequences. The plaintiff’s team faced the prior surgeries head-on, embraced them and made them a strength of the case by showing how Jonathan had made a full recovery, was stable and pain free, but highly susceptible to trauma (his body would respond differently than a person with a normal spine).
“The person who walked into McDonald’s that morning did not have a normal 28-year old spine. Even though Jonathan’s spine was stable and pain free spine, it was highly susceptible to trauma with potentially irreversible consequences. A fall directly onto the surgical site was the last thing he needed,” Brian says. “Jonathan could have fallen onto his hands, his knees, or it could have been anyone else and this would have played out differently. But unfortunately it happened to the one person who could not afford this type of fall.”
Using this approach to opening statement, the defense’s favorite facts were neutered before they even got a chance to speak. Now, armed with context, the story of the incident at McDonald’s was no longer a “silly” slip and fall; it was a life-changing, cringeworthy event.
3. Plaintiff’s Direct Examination
While most lawyers would choose their powerful closing argument as the final pivotal moment, Brian and Maureen attribute the outstanding verdict to none other than their client, Jonathan Choto. The plaintiff’s team used Jesse Wilson’s Witness Preparation: How to Tell the Winning Story (in which Brian is a contributing author) to tell their client’s damages story. “Instead of presenting Jonathan as a scrap-pile of wreckage devastated by McDonald’s negligence, we took the jury to a time and place in Jonathan’s life where times were good. It was a time and place of hope, promise, and what was once possible,” says Brian. “Jonathan’s story was so much more than what he was left with after the fall.”
The plaintiff’s team presented Jonathan’s story as a victor, not a victim offering the jurors the chance to invest in restoring Jonathan, who was not some lost cause. “When we got to pain and suffering damages, nothing needed to be said,” explains Brian. “The jury already knew Jonathan as someone who was once something more and they could feel his pain and loss without a need for him to say it. They had been on Jonathan’s life journey with him making the story of what he had lost and gone through that much more real.” This powerful style of direct examination paved the way for a $18.79 million dollar verdict with $17,773,900 in noneconomic damages for pain and suffering ($16 million in future pain and suffering alone).
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