Defending a Massachusetts-based big-box retail outlet against a seven-figure liability suit by a Florida woman who claimed she’d slipped and fallen twice during a single visit to the store, Goldberg Segalla partner David J. Majcak had little to work with except the underwhelming testimony of a store employee. He braced himself for a punishing verdict.
But then he scored a resounding victory.
Winning cases is nothing new to Dave. A member of Goldberg Segalla’s Retail and Hospitality practice group, he’s an experienced civil litigator who focuses on defending clients against a wide range of liability claims, including those relating to personal injury, wrongful death, product liability, employer liability, construction disputes, motor vehicle accidents, and premises liability. He has represented state governments, manufacturers, property owners, and subcontractors in state and federal courts, handling his cases from inception through resolution. In short, Dave’s no stranger to success.
But the big-box store case, he figured, was only about 10 percent winnable. He lacked the facts necessary to defend against a liability claim. The plaintiff, a 42-year-old woman, had slipped and fallen while shopping at the store January 5, 2013 ― first on a cherry tomato in the produce department and then on a blue, gooey substance like shampoo between the registers and front door ― allegedly injuring her spine, her shoulder, and her wrist, and exacerbating a jaw disorder. Two years later, she had surgery on her right shoulder; a year-and-a-half after that, in June 2016, she had cervical-spine surgery; and, in June 2017, she underwent another surgery on her right shoulder.
The woman’s medical expenses amounted to more than $275,000, and her orthopedic surgeons all testified that her medical treatment and associated expenses were necessitated by her accident. Without any evidence of prior orthopedic treatment, the defense’s own medical experts conveyed that this was not a good case on damages. In fact, the defense’s medical expert testified that the first shoulder surgery was due to the injuries from the accident.
During the four-day jury trial in March 2019, Dave and Rodney J. Janis contended the woman had failed to prove the store knew there were slipping hazards and yet not cleaned them up, which Florida law requires to establish liability. But a 25-year-old former store employee who was present when the accident occurred, and whose testimony was the defense team’s only hope of countering the plaintiff’s liability claim, had been unconvincing. So, in his closing argument on March 29, Dave focused on the law instead of the facts, and it worked.
Three hours later, the jury returned a full defense verdict.