California Verdicts

Plaintiff(s):

Michelle Yvette Gastello (Female, 35 Years)

Plaintiff Attorney(s):

Paul R. Kiesel;
Kiesel Law LLP;
Beverly Hills,
CA,
for
Michelle Yvette Gastello ■ Mariana Aroditis;
Kiesel Law LLP;
Los Angeles,
CA,
for
Michelle Yvette Gastello ■ Michael J. Libman;
Law Offices of Michael J. Libman;
Encino,
CA,
for
Michelle Yvette Gastello

Plaintiff Expert(s):

Brad Averett; P.E.; Civil; Marina del Rey,
CA called by:
Paul R. Kiesel, Mariana Aroditis, Michael J. Libman ■ Serge Obukhoff; M.D.; Neurosurgery; Beverly Hills,
CA called by:
Paul R. Kiesel, Mariana Aroditis, Michael J. Libman ■ Hooman Melamed; M.D.; Orthopedic Surgery; Marina Del Rey,
CA called by:
Paul R. Kiesel, Mariana Aroditis, Michael J. Libman

Defendant(s):

So Cal. Sanitation LLC, 

Costco Wholesale Corporation

Defense Attorney(s):

Scott A. Cox;
The Hanover Law Office;
Glendale,
CA,
for
So Cal. Sanitation LLC, Costco Wholesale Corporation

Defendant Expert(s):

Boyd Flinders;
Orthopedic Surgery;
Burbank,
CA called by:
Scott A. Cox

Insurer(s):

self-insured, Costco Wholesale Corporation;
Hanover Insurance Co. for So Cal. Sanitation LLC (primary insurer; $1 million policy limit)

On June 8, 2011, plaintiff Yvette Gastello, 35, a part-time photographer, was walking into the Costco Wholesale store at 6100 Sepulveda Blvd., in Van Nuys. At that time, the store’s restrooms were being remodeled, and Costco had set up temporary porta potty stalls outside of the store to accommodate customers. While Gastello was walking toward the store’s entrance, a subcontractor was cleaning out a handicap porta potty stall that was positioned outside of the store’s front entrance. However, as Gastello was traversing the entrance path, she slipped and fell on a puddle of fluid. Gastello sustained injuries to her lower back. Gastello sued the premises owner, Costco Wholesale Corp., and the subcontractor that provided and maintained the porta potties, So Cal. Sanitation Inc. Gastello alleged that So Cal. Sanitation failed to warn pedestrians that work was being done on the porta potty and failed to warn customers about the hazardous condition outside of the store. She further alleged that Costco was negligent and that it was vicariously liable for creating the unsafe condition. Gastello claimed that she slipped on excess fluid that had leaked from the porta potty. Plaintiff’s counsel argued that placing and cleaning the porta potty outside of the front of the store was unreasonable and unsafe. Counsel also argued that the defendants failed to warn customers that maintenance was being performed on the porta potty at the time of the incident. Plaintiff’s counsel contended that the defendants should have displayed a caution sign near the porta potty to warn customers that it was being cleaned and to warn that the pavement could be wet and unsafe to walk on. Further, counsel contended that customers should have been diverted away from the area where the cleaning was being performed. The plaintiff’s expert civil engineer opined that Gastello slipped on a puddle of excess fluid. He opined that the puddle was not created by water and that the coefficient of friction for water would not have caused Gastello to fall. Defense counsel argued that the liquid Gastello slipped on was water and not excess fluid from the porta potty. He contended that the So Cal. Sanitation employee had used a hose to clean the porta potty and that water from the hose had pooled near the store’s entrance. Counsel further contended that the maintenance work was obvious and that Gastello should have seen the porta potty being cleaned. Thus, he argued that Gastello was not paying attention while entering the store and that Gastello should have avoided the puddle of fluid. Defense counsel also challenged Gastello’s credibility, noting that Gastello admitted that she saw the employee cleaning the unit with a hose and that Gastello could not recall whether she saw the employee use the hose before or after she fell. Defense counsel argued that even if a warning sign had been in place, there was no guarantee that Gastello would see it or abide by the warning. In addition, counsel argued that the plaintiff’s expert engineer failed to provide an alternate location for the porta potty and that the defendants’ placement of the porta potty was reasonable.

Three days after the fall, Gastello sought medical attention. She visited a chiropractor and an acupuncturist, and complained that her lower back was painful. She subsequently treated her back pain conservatively with acupuncture and chiropractic adjustments, but she claimed her pain persisted and she was ultimately referred for an MRI. Gastello then presented to an orthopedic surgeon, and was diagnosed with an aggravation of a pre-existing pars defect, affecting the L5-S1 level of her lower spine. Four years after the incident, in June 2015, Gastello underwent anterior and posterior lumbar fusion surgery with the placement of instrumentation at the L5-S1 level. The plaintiff’s expert orthopedic surgeon opined that, prior to the incident, Gastello had an asymptomatic pars defect that became symptomatic as a result of the fall. He further opined that Gastello would not have required fusion surgery if the accident did not occur. Thus, Gastello sought recovery of damages for her past pain and suffering, and recovery of future medical expenses. She also sought recovery of $4 million in damages for her future pain and suffering, $354,000 for her past medical costs, and $50,000 for her past lost wages. Defense counsel contended that the plaintiff’s treating orthopedic surgeon admitted to overcharging Gastello for medical services. Thus, defense counsel argued that Gastello’s treatment was not as expensive as she claimed. The defense’s expert orthopedist opined that Gastello was exaggerating the extent of her injuries and that Gastello’s treatment was excessive. The expert also opined that Gastello’s back’s condition was not causally related to the June 8, 2011 accident.

The jury found that Costco Wholesale was negligent in its maintenance of the property, that So Cal. Sanitation was negligent in failing to warn about the work being done on the porta potty, and that Gastello was negligent for failing to keep a proper lookout. As a result, the jury apportioned 50 percent liability to So Cal. Sanitation, 40 percent liability to Costco Wholesale, and 10 percent liability to Gastello. The jury determined that Gastello’s damages totaled $2,856,000. After the comparative-negligence offset was applied, Gastello’s recovery was $2,570,400.

Michelle Yvette Gastello: $306,000 Personal Injury: Past Medical Cost; $400,000 Personal Injury: Future Medical Cost; $350,000 Personal Injury: Past Pain And Suffering; $1,800,000 Personal Injury: Future Pain And Suffering

Actual Award:

$2,570,400

Judge:

Randolph M. Hammock

Demand:

$550,000

Offer:

$301,200

Trial Length:

6
 days

Trial Deliberations:

4.5
 hours

Jury Vote:

11-1 as to damages; 9-3 as to the plaintiff’s contributory negligence

Jury Composition:

5 male/ 7 female

This report is based on information that was provided by plaintiff’s and defense counsel.