ArticleMichael H. Gladstone, Director at McCandlish Holton, and J. Matthew Haynes, Jr., Director at McCandlish Holton, recently worked with Larry Dinoff, Premises Safety Expert at Robson Forensic, to obtain a successful case win for Big Lots Stores, Inc.
Details of the case are outlined below, originally published by the International Association of Defense Counsel.
Shayna Palmer v. Big Lots Stores, Inc.
United States District Court for the Eastern District of Virginia, Richmond Division,
Case no.: 3:14-cv-00276-JRS
McCandlish Holton P.C., Richmond, Virginia
The plaintiff in this premises liability, head-injury suit, claimed boxed artificial Christmas trees were negligently stacked, fell from a storage shelf, and struck her in the head at a Big Lots store on December 8, 2012. Palmer was initially diagnosed with a mild concussion and released. Over the next several months she complained of cognitive symptoms later attributed by her experts to post-concussive syndrome and related seizure activity.
After engagement of counsel in early 2013, Palmer underwent extensive psychiatric, psychological, physical therapy, and occupational therapy treatments by a team of 6 medical and other experts. The principal medical witness was expected to testify that Palmer suffered diffuse axonal injury and that untreated “post-traumatic seizure focus” went untreated, causing a permanent “post-TBI neuropsychiatric disorder.” Palmer’s experts recommended she undergo 12 to 18 months of residential neuro-rehabilitation treatments, and opined that her ability to obtain gainful employment or live independently was “non-existent.” Palmer’s life care plan totaled between $10 and $20 million. She claimed an additional $980,000 in lost earning capacity.
Palmer filed suit in Virginia state court on December 18, 2013, seeking only $50,000. Her Complaint alleged “serious” injuries, but omitted any mention of, or allusion to, a head injury. On April 18, 2014, after damage oriented discovery, Big Lots removed the case to the USDC, EDVA, and simultaneously filed a Rule 68 Offer of Judgment for $75,000. Palmer acquiesced to federal jurisdiction and increased her ad damnum to $20 million.
As to liability Big Lots focused on Palmer’s lack of evidence of how and why the event occurred and her admissions, revealed through social media discovery, that a third party caused the box(es) to fall. Big Lots’ expert, Lawrence Dinoff, AIA, NCARB, opined the shelves were properly constructed, that plaintiff’s expert’s negligence theory was unfounded, and the boxed Christmas trees were stored in compliance with industry standards.
As to damages, Big Lots assembled an expert team to rebut the medical and damage opinions expressed by the plaintiff’s experts. The damage defense focused on the absence of any actual permanent injury and cognitive sequelae to Palmer. Painstaking analysis of a multitude of social media and other ESI proved this aspect of the case.
Big Lots moved to exclude Palmer’s liability expert and for summary judgment which the court granted in early 2015. In finding for Big Lots, the court expressly rejected Palmer’s argument that she should have a reduced burden of proof under a “foreseeability standard of liability.” The court found that even if Palmer had evidence of a dangerous condition, which she did not, Palmer provided no evidence that Big Lots had notice of the condition. On November 5, 2015, the Fourth Circuit affirmed the trial court, and on December 22, 2015, it denied Palmer’s request for rehearing.
Retail Safety Investigations
The experts at Robson Forensic are frequently engaged to investigate matters related to the operations and management of retail stores. The focus of our investigations varies from case to case, but often involves an evaluation into the safety of merchandise displays, good housekeeping practices, food safety, or premises security.
For more information visit our Premises Safety practice page.
Larry Dinoff is one of the experts in the Premises Safety practice at Robson Forensic. A registered architect in multiple States and the District of Columbia, Larry is regularly retained to investigate a range of premises liability disputes. Larry has more than 20 years of experience developing national safety standards for buildings, walkways, products, playgrounds, materials and maintenance practices. He is the designated technical contact for ANSI/ASTM walkway safety standards F1637 and F1646.