California News Items

Title: Southern California Office Earns a Unanimous Defense Verdict in Death Case in Just Over Two Hours of Deliberation

Hayes v. New Albertson’s Inc., David Rieu

On May 12, 2005, a 60-year-old’s 1961 VW became disabled on the I-5 freeway and he pulled it onto the shoulder area of the freeway at a call box. He got out of his car, walked around the passenger side to the rear engine compartment, and then returned to his driver's door just as an 18-wheel Albertson’s truck was approaching in the number 4 lane. He either stepped back or fell into the number 4 lane, where he was struck and killed by the Albertson’s truck.

The plaintiffs and their experts contended that the Albertson’s driver could have seen the vehicle stopped on the shoulder from 1,000 feet away, which would have allowed the driver enough time to slow down and move over into the number 3 lane leaving sufficient clearance. Additionally, plaintiffs contended that the front of the Albertson’s truck clipped the side of decedent and the effect of the air displacement from the truck sucked decedent into the rear duals of the trailer. Finally, plaintiffs contended that the driver's sounding of the air horn startled decedent into falling into the lane.

The defendants contended that at 1,000 feet away, the only thing visible to the driver would have been the general outline of the vehicle, which was completely out of the number 4 lane and could be passed with as much clearance as any moving vehicle in any other lane. No hazard was presented until decedent returned to the fog line near his driver's door. In approximately three seconds, the driver moved his truck to the left edge of the number 4 lane, covered his brakes, and sounded his air horn, which was all he could reasonably do in the time he had. A car carrier prevented him from moving into the number 3 lane (plaintiffs disputed the presence of a car carrier based upon the testimony of other witnesses that they did not remember a car carrier being there). Hitting the air brakes would not have saved decedent, who clearly stepped or fell at least four feet into the number 4 lane, as shown by blood patterns on the road in CHP photographs.

Defense experts showed that based upon the scientific studies, plaintiffs' air pressure suction theory was essentially a myth. Physical evidence established that decedent was laying down flat in the road when he was struck, and two witnesses, in addition to the driver, saw decedent take at least one step into the number 4 lane before he fell or went prone into the lane.

Defense experts also challenged plaintiffs' contention that the air horn caused a startle response in decedent. Defense experts measured the air horn as well as the ambient freeway noise at the location of the accident and concluded that the air horn could barely be heard, much less startle someone.

Finally, the decedent had been totally disabled from failed lower back surgeries over 25 years ago and had to use a cane, walker, or wheelchair to get around. He suffered from a history of various back ailments and had been taking 10 to 12 Vicodin a day for over a decade and as well as receiving Demerol injections twice a month for pain. One of his neurological back conditions left him with severe muscle spasms many times per day for decades. Three months prior to his death, decedent was injured at home, breaking his right heel and left ankle. At the time of this accident, he was supposed to still have his left ankle in a CAM Walker, which he was not using at the time of the incident. Additionally, he was still wearing temporary canvas medical shoes when he was on the freeway, which offered no support and were designed for use by patients with too much swelling to wear their normal shoes.

Based upon this history, defendants argued that decedent was comparatively negligent for walking around on the side of the freeway, particularly after he had already reached the safety of the passenger side of his VW. Had he simply stayed on the shoulder, next to the call box, and waited for authorities, he would have been fine.

The plaintiffs claimed $130,276 for loss of support and $333,314 for loss of household services. The plaintiffs also claimed, through tearful testimony, loss of care, comfort and society in an unspecified amount.

Jury trial lasted seven days (Judge Steven L. Perk presiding), at which time the jury deliberated for two hours, and returned a unanimous defense verdict as to New Albertson’s Inc. and its driver.

Nevada News Items

Title: IN MEMORIAM: W. DENNIS RICHARDSON

The entire BVRC family is saddened by the sudden and shocking loss of one of its own. It is with a heavy heart that we report that Dennis Richardson passed away on Friday, May 30, 2008. It has been reported to us that he was found unconscious and unresponsive that morning. We do not have any further details.

Words, the tools of our profession, seem woefully inadequate at times like these. There is no satisfactory answer to why a friend is taken from us, still in the prime of life. We can but mourn his loss, say goodbye, and pass along our sincere condolences to his family. Dennis was a gifted lawyer; analytical, logical, knowledgeable, an excellent writer, and fearless in trial. He was a patient mentor to younger associates and a friend to all. His intelligent wit, humor, calm demeanor, and friendship will be sorely missed.

We understand from Dennis’ family that he will be taken back to his hometown of Chicago for services and internment.

Title: Dano v. Nolan; Albertsons

Partner Rob Ryder tried the case to a jury in Judge Herndon's court, and successfully made a motion at the close of plaintiff's evidence to strike all causes of action except for defamation and intentional interference with contract. During the seven day trial, evidence was presented from Sara Lee records demonstrating impossibly low stale percentages all along plaintiff's route, plaintiff's cash sales of product to independant markets, and plaintiff's gambling habits. Despite an adverse inference jury instruction regarding the lost investigatory materials, the jury returned an 8-0 defense verdict in 50 minutes. Defendant will be seeking costs and attorney's fees based upon plaintiff's failure to accept defendant's pre trial offer of judgement.

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Title: Nisgore v. Ralphs dba Food 4 Less

The jury was skeptical of the sweeps log because the employee who did the sweep often made "copycat" notes in which he logged in a running series of sweeps that were supposedly made every hour on the hour (i.e., "6:00 p.m., 7:00 p.m., 8:00 p.m.," etc.) every day of the week. The court gave a jury instruction based on a recent Nevada Supreme Court case that allowed, but didn't require, the jury to draw an adverse inference that the sweep log entries were unreliable because the store didn't preserve a videotape. An eight-person jury rendered a defense verdict after only 55 minutes of deliberation. Ultimately, the jurors reached consensus in favor of the defense - some jurors were convinced that the store wasn't negligent while others believed that the plantiff's fall resulted from either her own negligence or the medical conditions that made her prone to fall.

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Title: Garley v. Albertsons

After years of handling by another defense firm, the case was transferred to our office for an evaluation of plaintiff's $300,000 demand, which had been recently reduced to $150,000. Rob Ryder and Dennis Richardson, prepared a 40 page motion for summary judgment analyzing third party criminal assault law in Nevada and all other states. That summary judgment motion was granted by Clark County District Court Judge Douglas Herdon, ending plaintff''s lawsuit. Defendant was awarded costs, which was followed by the withdrawal of plaintiff's attorney from the case and plaintiff has recently filed for bankruptcy.

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Title: Wilhite v. Serenity Homes, Environment for Living, Kolob Plumbing, Byrd Underground

Pre-trial demands were made for the $1 million policy limits of each of the three defendants going to trial (Serenity Homes was simply the name of the project, not a legal defendant). Plaintiff was represented by a premier plaintiff's firm in Southern Nevada, with many multimillion dollar verdicts and the claim of never having "lost" a trial. Our client was Byrd Underground, the only defendant still in business, which had substantial assets at risk in the event of a verdict in excess of policy limits. The pre-trial offer on behalf of Byrd was $100,000.

Trial lasted 11 days before a Clark County jury (Judge Valarie Adair presiding). Partner Rob Ryder tried the case on behalf of Byrd, establishing that (1) contrary to plaintiff's sworn claims, he most likely fell in a concrete trench which was not dug by Byrd, and (2) that any duites Byrd had to barricade the plumbing trench it dug were discharged because the plumbers were still working in the trench after Byrd employees left. Ryder also took the lead in impeaching plaintiff's claims with regard to the extent of his injuries, impeaching plaintiff's claims regarding prior and subsequent injuries, and showing that much of plaintiff's treatment, including surgeries, coincided with important litigation dates. To aviod further damage to the plaintiff's case, plaintiff's attorneys settled with our client for $25,000 on the 9th day of this 11 day trial. When the jury returned a verdict against the remaining two defendants for just under $100,000, further offset by plaintiff's 50% comparative negligence, they remarked that they would have defensed the case as to Byrd and that Ryder's criticism of plaintiff''s medical treatment was well taken.

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Title: Mims v. Riveria Trailer Park

Senior attorney Dennis Richardson, supported by associate Eric Larsen, tried this case to a jury over a five day period in Clark County, Nevada (Judge Lee Gates presiding), culminating in a unanimous defense verdict. Plaintiff was impeached on the biomechanics of what he claimed happened as well as his prior medical condition and activities (surveillance film).

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Title: Silver v. Food4Less

The case was tried for 5 days to a Clark County, Nevada jury (Judge Douglas Herndon presiding). Partner Rob Ryder successfully obtained a unanimous complete defense verdict with a firm record of 18 minutes for juror deliberations. Plaintiff and her son were impeached as to the size and location of the concrete expansion joint in the store, and the defense established that all expansion joints in the store met ASTM saftey standards. Silver was also significantly impeached as to her claim of no prior similar injuries through extensive use of her medical records.

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Title: Hawley v. Marriott

Following a 5-day jury trial in Clark County, Nevada (Judge Michael Cherry presiding), partner Mike Caspino and senior associate Dennis Richardson obtained a unanimous complete defense verdict by proving the tub was reasonably safe, impeaching the biomechanics of plaintiff's claimed fall, and impeaching plaintiff's injury claims.

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