Nine and a half years ago, on the afternoon of February 11, 2014, Nichole Rogers* was in the waiting room at the diabetes clinic at a children's hospital with her two children, ages 9 and 11. One of her children is a Type I diabetic and requires medical visits every three months.
It was there that a 16-year-old with a documented history of violence physically attacked Nichole in front of her children. Nichole was punched repeatedly, hit in the head with a chair after the attacker threatened her children first. At some point during the attack, she lost consciousness. After witnessing their mother being beaten by the attacker, the kids ran to hide in a stairwell, thinking their mother might be dead—and that they were next.
Their mother survived, but she will live with a TBI and ongoing PTSD. Both children were traumatized by the incident, and Nichole’s husband had to shift from a partner to a caregiver role in the wake of the attack.
As court documents show, the 16-year-old assailant should never have been on the property in the first place. Clinic security had met with the attacker’s mother less than a year earlier, in May of 2013, after she and her two daughters had threatened ER staff and other visitors on separate occasions. (The attacker’s sister had Type II diabetes, and had to attend regular medical appointments.)
After the earlier incident, the attacker’s mother had agreed not to bring the attacker to her other daughter’s pre-scheduled clinic appointments. The attacker’s mother refused to sign a behavioral contract, but she verbally agreed that the assailant would not join them on site. Instead of enforcing the behavioral contract, or require more than a verbal agreement, security trusted the attacker’s mother with enforcing their agreed-upon terms.
*Name has been changed.
“The case was brought against a local children’s hospital and clinic for negligent security,” explains Randy. “My security expert opined that this family showed an increasing pattern of violent behavior that should have been identified by security if they had done their jobs properly.” Security was not present when Nichole was attacked, and there were no security cameras to capture the incident; Randy argued that this was a systems failure that put his client at grave risk.
While insurance coverage went up to $26 million, no offers were made, and the defendants refused to mediate. With that, the plaintiff team pushed forward, preparing to go to trial. They sought financial restitution for Nichole’s past and future medical expenses, past and future pain and suffering, and lost wages and earning capacity; her husband’s loss of consortium; and her children’s severe emotional distress and counseling costs.
Nichole's first treating doctors believed that Nichole had already fully recovered from the TBI: an opinion the defense was quick to agree with. At trial, the defense medical expert stated that Nichole was “embellishing” her symptoms, despite her having passed the two effort tests he administered.
Randy’s cross-examination focused on the absurdity of the actual questions on that test, noting that her responses were exactly what one would expect with someone having a TBI with ongoing headaches, migraines, and PTSD. Randy was quick to pivot on the idea that neuropsychology is a relatively new and famously unreliable science: a sentiment that matched that of the jury forewoman.
Randy and his team took care to select jurors they believed would understand the plight of their client, and the message they were trying to send to the defendant. “The theme of my case was that this was a result of a systems failure by security,” explains Randy, “and in order to prevent a tragedy like this from happening again, they had to send a message to the defendant. The forewoman repeated this to the jury during deliberations.”
The jury found negligence and cause on the defendant (70%), negligence and cause on the attacker’s mother (30%), and no negligence on the plaintiff. The $8.38 million verdict broke down as follows:
Past Loss of Earnings: $180,000
Past Pain, Suffering & Disability: $1,500,000
Future Healthcare Expenses: $1,530,092
Future Loss of Earning Capacity: $432,000
Future Pain, Suffering & Disability: $3,400,000
Loss of Consortium to Husband: $250,000
Past Loss of Society and Companionship to Daughter: $450,000
Past Loss of Society and Companionship to Son: $350,000
Severe Emotional Distress to Daughter: $108,000
Severe Emotional Distress to Son: $93,600
Past Medicals for Nichole: $82,651.41
Counseling for Daughter: $4,126.25
Counseling for Son: $2,312.25
Trial Guides Titles in Action
Randy is a devoted Trial Guides reader and has read nearly every book in our catalog. He credits three titles with reaching this outstanding outcome:
“Jesse Wilson’s Witness Preparation helped tremendously on this and two prior cases,” explains Randy. “Not only does he bring an intangible quality to our trials, but he sets the tone for the narrative. He helped me portray Nichole as the victor, not the victim, and the jury agreed.”
Polarizing the Case: Exposing and Defeating the Malingering Myth is available in print and ebook.
Rick Friedman’s Polarizing the Case was essential in confronting the IME doctor’s malingering accusation. “In this particular case, Rick Friedman's Polarizing the Case was essential with the defense experts, and even some of the treating doctors, because they dismissed her TBI,” says Randy. “It’s a book I come back to with almost every trial.”
Nicholas Rowley, Courtney Rowley, and Wendy Saxon’s Voir Dire and Opening Statement is available in print and ebook.
Finally, Nick and Courtney Rowley’s Voir Dire and Opening Statement helped Randy during voir dire, when he extracted brutal honesty from a potential juror. “A potential juror was friends with the CEO of the children's hospital,” explains Randy. “Before I even used the phrase ‘brutal honesty’, I was questioning her about the relationship, and whether [the children’s hospital] would start ahead of the starting line at trial. I said, ‘If you were me, would you pick me for your jury?’ And she said ‘No, I wouldn't.’ And we got to strike her for cause.”
About Randy Rozek
Randy Rozek focuses his practice on the representation of victims of serious, life-changing injuries, including those who have been harmed by large corporations and insurance companies. Mr. Rozek is routinely asked to speak to lawyers and doctors in order to educate them on such issues, particularly in the area of representing victims of traumatic brain injuries and brain damage from carbon monoxide poisoning.
Mr. Rozek is the past-Chair of AAJ’s Traumatic Brain Injury Litigation Group. In 2016, Randy was honored to receive the Wisconsin Trial Lawyer of the Year Award.