Attorneys from Dan Caplis Law earlier this month won a $2.45 million verdict for an elderly client who was injured in a wheelchair transport incident.
A Denver jury on Oct. 15 awarded 81-year-old Mary Herbka the verdict for injuries sustained while being transported by Metro Care Ambulance from a doctor’s appointment to her Denver-area nursing home.
According to atorney Michael Kane, the ambulance driver didn’t properly secure Herbka to her wheelchair, and when he slammed on the brakes, she slid out from underneath the restraint system and was pressed up against a metal barrier separating the driver’s seat from the back of the vehicle with her leg “bent at a funny angle.” Even after realizing Herbka was no longer in her wheelchair, Kane said, the driver kept driving rather than calling 911.
The client was rushed to a hospital and underwent surgery the next day, Kane said, and she suffered a broken tibia and fibula requiring rods to be inserted to fix the broken bones.
The injuries resulted in a drastic reduction in Herbka’s mobility, independence and quality of life. Kane said he thinks one of the biggest considerations for the jury was the fact that Herbka’s right leg was already unusable due to a disability, and following the serious fracture to her left leg, she is no longer able to stabilize herself while transferring from her bed into her wheelchair.
She is now confined to her bed, Kane said, and requires the nursing home to use a lift to transfer her to her wheelchair. She can no longer move around the nursing facility by herself or use the toilet independently, he added.
“That was really compelling to the jury, because Mary is an absolutely wonderful woman,” Kane said, adding that when she arrived at the nursing home about two years ago, she started a ministry within the facility. “She would go around in her chair to visit with the other members of the nursing home just for the purpose of cheering them up and providing them with ministry services [and] jokes,” Kane said.
Herbka also wrote an autobiography for a nursing home resident who was having a difficult time and was very ill, Kane said, and she was elected president of the facility’s residents’ council and received a “spirit award” from the facility.
“That’s really the devastating impact that this has had on Mary is that she’s now no longer able to do any of those things anymore, because she’s unable to get out of her bed,” Kane said. “The jury found that to be just as devastating as we found it to be. And so, a large portion of the verdict was to compensate for those sorts of damages.”
The case proceeded to trial quickly despite the pandemic. According to Kane, Herbka was injured in late February, the lawsuit was filed by the end of March and the first day of trial was Oct. 12. The court found Herbka was entitled to an expedited trial due to her age, which helped speed up the timeline.
Attorney Dan Caplis said the court “did a great job with health and safety precautions” during jury selection and trial, including masks, wiping down microphones and podiums and making sure everyone was safely distanced within the courtroom.
“We were all just blown away by the sense of civic responsibility and patriotism of the jurors, because large numbers showed up for jury selection,” Caplis said. “And our jurors were very prompt and attentive and dialed in through the whole trial.”
He added that it was the first time he had tried a case without his client in the courtroom, but Herbka testified remotely and appeared on a screen in court, allowing her to be “brought into the courtroom from the nursing home in such a way that her personality could still shine through.”
“This was about the truth. We were right. The facts were on our side,” Caplis said. “The question is, could the truth shine through all of these mechanical challenges due to COVID? And at the end of the day, I think the message we took out of there was: The truth overcomes all obstacles, including COVID.”
The award in Herbka’s case was the fourth multi-million-dollar verdict the firm has won in about 13 months. The others include a $26.6 million verdict for two siblings who lost their parents in a trucking accident, an insurance bad faith verdict of more than $3 million and a $3.1 million award in a motorcycle-related case.
“From our standpoint, the common denominator has truly just been the quality of our clients,” Caplis said. “And there’s no question that that matters a tremendous amount at trial — the quality of the people from all walks of life… telling a true story.”
“And in each and every case, you had juries that were totally dialed in, they followed the law, they followed the facts. And when you do that, that’s where you end up with four seven-figure verdicts in a row.”
Michael Annerino of Dan Caplis Law also represented Herbka in the case.
—Jessica Folker