Miami-based Rumberger, Kirk & Caldwell attorneys Scott M. Sarason and Jens C. Ruiz have shielded a Kentucky-based ladder company from a federal lawsuit that sought $1.9 million and alleged a design defect caused a Florida real estate and business attorney to have a nasty fall.

The case demonstrated the power of defending a products liability claim based on the design, rather than contesting a plaintiff's injuries.

But it was a risky approach, according to Sarason.

"If the jury finds that there is a defect, or that it is unreasonably dangerous, we have defended a case on the liability side and not on the damages side," Sarason said.

Plaintiff Jerry Zaslow was descending a retractable wooden attic ladder at his Palm Beach County home on March 1, 2017, when he fell and hit his neck, back and head on a concrete garage floor, according to his complaint.

He suffered a concussion, a compressed spine fracture, a bilateral sacral fracture, a traumatic brain jury and post-traumatic Parkinson's disease—injuries he claimed never would have happened if the ladder's handrail had been longer.

Zaslow, 75 at the time, also claimed the fall ended his legal career. He sought $1.9 million in damages to cover medical treatment, loss of income, and pain and suffering.

Zaslow's lawsuit, filed in the Southern District of Florida, pointed at Louisville Ladder Inc., alleging that when he reached out to grab the handrail on its ladder, it wasn't there. But that's because the handrail was slightly shorter than the ladder itself, allowing some space for attic insulation when it folded away, according to Sarason and Ruiz, who argued that the ladder complied with all safety standards.

Plaintiffs experts testified that wasn't safe, but the defense team countered that Zaslow was the first of about 800,000 customers in more than 30 years to have an accident on the steps, and that no parts were broken or damaged during the fall.

"So the question becomes, what happened differently on the day of this accident that caused Mr. Zaslow to fall and get hurt?" Sarason said.

The plaintiff was packing to go on a cruise, according to Sarason and Ruiz, who argued that Zaslow fell because he'd tried to carry a suitcase from the attic. It was something the couple normally did together, the defense claimed, but Zaslow didn't ask for help this time because his wife was busy on the phone.

"Mr. Zaslow was doing a two-person job by himself," Sarason said. "Of course, we're very sorry that he fell, we're very sorry that he was hurt, but it was not a fault of this ladder."

One of the biggest obstacles, according to Sarason, was that Zaslow and his wife were particularly likable, meaning jurors were likely to sympathize with and want to compensate them.

"Mr. Zaslow is an extremely nice man, and Mrs. Zaslow is a wonderful woman," he said. "They have been married for about 10 years, and they were looking forward to enjoying vacation time together and retirement time together."

Zaslow's wife testified that he was her caretaker until the accident, when the roles reversed and it became painful for him to move around.

At trial, the case hinged on deciphering where Zaslow was on the ladder when he fell. Zaslow testified at his deposition and in his answers to interrogatories that he was stood on the third or fourth step from the bottom, but in the courtroom insisted he was on the first step.

Sarason said he felt that contradiction hurt the plaintiff's chances.

"The reason I think that had such an impact is that Mr. Zaslow is a lawyer, and when he answered those interrogatories, he answered them under oath and he understands as a lawyer what that means," Sarason said.

To keep jurors engaged, the defense paired physical and visual exhibits with testimony from an expert, who concluded that if Zaslow had fallen from the first step he would have hit his head against a wall and suffered different injuries.

Sarason and Ruiz enlarged a photograph that a plaintiff's expert took of Zaslow standing on his garage floor, and used Velcro to place his figure on various areas of the ladder to show he could have grabbed the handrail from the second, third and fourth step.

They also gave jurors a replica of the handrail, so they could feel something like what Zaslow felt.

"This was something they were able to put to their hands, and it helped us to establish that his hand didn't slide off the bottom of the handrail, but instead, at some point, he let go and then lost his balance and fell," Sarason said.

It took jurors just 45 minutes to decide that Louisville Ladder was not negligent and that its stairs were not defective or lacking warnings.

The case has since settled confidentially.

Zaslow's attorney Jordan Dulcie of the Searcy Denney law firm in West Palm Beach called the outcome unfortunate and disappointing, but maintained that his evaluation of the product revealed a strong design-defect case.

"We made our arguments and we believed very strongly in our position and the facts. Unfortunately, a juror didn't side with that," Dulcie said. "But for us, the most compelling evidence, which the record will reflect, was the zero testing that was done with this product before they put it out to the marketplace."

Dulcie and co-counsel Rosalyn Sia Baker-Barnes argued that because Louisville Ladder began selling this product in the late 1990s, when it acquired the company that originally designed it, it hadn't properly tested it.

"They didn't evaluate any of the safety things that you would do if you're designing a product yourself, which companies are obligated to do," Dulcie said.

Sarason said the case meant a lot to Louisville Ladder, as its reputation on the line.

"If this was a design defect and there were 800,000 units being used, even it was as much as twice a year over those 30 years, you wouldn't have hundreds of thousands of millions of times where the ladder's being used where nobody got hurt," Sarason said. "Louisville Ladder believes in its product. We believe it is safe and we believe that this was an unfortunate accident."

Read the verdict:

Case: Jerry Zaslow and Diane Paganuzzi-Zaslow v. Louisville Ladder

Case No.: 9:18-cv-80091-BER

Description: Products liability

Filing date: Jan. 25, 20128

Verdict date: Feb. 27, 2020

Judge: U.S. Magistrate Judge Bruce E. Reinhart in the Southern District of Florida

Plaintiffs attorneys: Jordan Dulcie and Rosalyn Sia Baker-Barnes, Searcy Denney Scarola Barnhart & Shipley, West Palm Beach

Defense attorneys: Scott M. Sarason and Jens C. Ruiz, Rumberger, Kirk & Caldwell, Miami

Verdict amount: Defense verdict

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