Mullen v. Sam's East 

Defense Verdict

Date of Verdict: Feb. 6.

Court and Case No.: C.P. Allegheny No. GD-15-021415.

Judge: Donald R. Walko Jr.

Type of Action: Premises liability.

Injuries: Leg, back and hip injuries.

Plaintiffs Counsel: Matthew J. Scanlon and Timothy G. Wojton, Scanlon & Wojton Attorneys at Law.

Plaintiffs Expert: Jose A. Ramirez-Del Toro, physical medicine; Pittsburgh.

Defense Counsel: Rebecca Sember Izsak and Brook T. Dirlam, Thomas, Thomas & Hafer, Pittsburgh.

Defense Expert: Jon B. Tucker, orthopedic surgery; Pittsburgh.

Comment:

On June 7, 2014, plaintiff Randie Mullen, in her early 50s, was shopping at a Sam's Club in West Mifflin. A 40-pound bucket of chlorine tablets fell from a display that was more than 4 feet high, onto her right lower leg. She claimed injuries of her leg, back and hip.

Mullen sued the store owner, Sam's East Inc. She alleged that Sam's Club was negligent for allowing a dangerous condition to exist. Mullen alleged that after having retrieved a bucket of chlorine tablets, she turned and put the bucket into her cart and then felt pain in the back of her leg. She then realized that one of the buckets from the display had fallen onto her leg. According to Mullen's counsel, after the accident, the store performed a cursory investigation into the cause. The manager allegedly did not inspect the display after the accident, and admitted that she had no idea whether the display was stable. Mullen's counsel argued that Sam's Club was liable for its improper and unsafe stacking of the heavy buckets, and that Mullen's injuries were caused by the store's negligence.

Although Sam's Club did not dispute that the incident occurred, the store denied that the incident was a result of the display being dangerous or in an unstable condition. The defense pointed to the fact that Mullen described the display as perfect and admittedly saw no instability before the incident, and that at least one employee examined the display after the accident and found it to be stable.

Following the accident, Mullen presented to an immediate care facility and was treated for a laceration along the back of her right calf. An X-ray was negative for a fracture.

Mullen was ultimately diagnosed with a distal fracture of the right fibula, a compression fracture of her lumbar spine and a pelvic fracture.

On June 8, 2014, the day after the accident, Mullen returned to the immediate care facility because of continued swelling in her leg, she also received a wound check. On June 16, she presented to her primary care physician. She was diagnosed with a fibula fracture and was placed in a walking boot, which she wore for more than five weeks. From June 16 to July 24, Mullen received wound treatment for her laceration.

After the boot was removed, Mullen continued to have leg cramping and spasms when she stood or walked for any length of time. The pain began to travel up her leg and to her groin and back. For the next year, Mullen consulted with her primary care physician and her orthopedic surgeon.

In April 2015, Mullen fell down due to the cramping in her right leg; she fractured her left pelvis. She was also diagnosed with a lumbar compression fracture. She treated with a brief course of chiropractic care and four sessions of physical therapy, in addition to a home-exercise program. In the ensuing years, and at the time of the trial, Mullen treated with her chiropractor as needed.

Mullen's physiatrist testified that the accident caused Mullen to suffer a fibula fracture and that it weakened muscles in her calf. This in turn caused the cramping in her calf and resulted in her falling and fracturing her pelvis and lower back, the physician concluded.

Mullen testified that she continues to suffer from pain in her lower back, pelvis and leg. She sought damages for past and future pain and suffering.

The defense's expert in orthopedic surgery, who examined Mullen, testified that the imaging studies did not indicate that Mullen suffered a fractured fibula from the accident. Moreover, Mullen's fall and subsequent pelvis and back fractures were not causally related to the incident, the expert concluded; they were related to preexisting spinal stenosis, which was the cause of the fall in April 2015.

The jury found that Sam's Club was negligent, but its negligence was not a factual cause of any harm to Mullen.

The court denied plaintiff's counsel's motions for a new trial and for judgment not withstanding the verdict. This report is based on information that was provided by defense counsel. Plaintiffs counsel did not respond to the reporter's phone calls.

—This report first appeared in VerdictSearch, an ALM publication