Jury trials have returned to the state and the top verdicts in 2021 reflect not only the uptick in trials and court activity but a general return to normalcy as industries flex following two years of pandemic operations and woes. Notably, more than half of the top 10 verdicts last year involve breach of contract claims and business disputes, something we’ve heard from legal experts this year is likely to continue as a trend. The rest of the list includes verdicts in medical malpractice, personal injury and wrongful death cases.
The following case information was collected and shared with Law Week by The Jury Verdict Reporter of Colorado.
McWhinney Holding Company, LLLP, McWhinney Centerra Lifestyle Center, LLC and Centerra Lifestyle Center, LLC v. Terry McEwen
Case No: 2017 CV 2853
Type of Claim: Aiding and abetting breach of fiduciary duty, aiding and abetting fraud, fraudulent concealment, fraudulent misrepresentation and civil conspiracy.
Judge: U.S. District Court Judge R. Brooke Jackson
Plaintiff’s Attorneys: Andrew Giacomini and Brian Schnarr of Hanson Bridgett Marcus Vlahos & Rudy, LLP
Defendant’s Attorney: Richard Kaufman of Richard Kaufman, PC
This case involved a partnership dispute related to the development and operation of the Promenade Shopping Center at Centerra located near Loveland, Colorado. McWhinney Holding Company, LLLP, McWhinney Centerra Lifestyle Center, LLC and Centerra Lifestyle Center, LLC sued former partners at Poag & McEwen Lifestyle Centers LLP, a Tennessee-based property management company, various Poag & McEwen subsidiaries and the three principals of those companies, Terry McEwen, G. Dan Poag and Joshua Poag.
The dispute began after McWhinney lost the Promenade shopping center to foreclosure in late 2009. McWhinney filed a lawsuit against Poag & McEwen in May 2011. During the earlier court process, McWhinney uncovered evidence of a complex fraud committed by Poag & McEwen’s three individual owners. But the state court lawsuit was too close to trial to amend to add new claims and parties.
After obtaining a $42 million state court judgment in 2017 against one of Poag & McEwen’s subsidiary companies for breach of contract, McWhinney hired Hanson Bridgett to pursue Poag & McEwen’s three owners in federal court for fraud, concealment and aiding and abetting liability. Before trial, McWhinney’s claims survived several challenges raised by Poag & McEwen’s owners including motions on the economic loss rule and the responsibility of officers, directors and managers of limited liability companies under Delaware law. G. Dan Poag and Joshua Poag settled with McWhinney before the federal court trial. McEwen’s affirmative defenses included statute of limitations, contributory fault/fault of others and a lack of knowledge of, or participation in, the fraudulent scheme.
On July 19, 2021, the court entered judgment in favor of McWhinney Holding Company, LLLP, McWhinney Centerra Lifestyle Center, LLC and Centerra Lifestyle Center, LLC and against McEwen for $23.4 million on the claims of aiding and abetting breach of fiduciary duty, fraudulent concealment, fraudulent misrepresentation and civil conspiracy. McWhinney was awarded $12,362,860.65 in prejudgment interest plus costs. McEwen filed an appeal.
Beata Gorodess v. Sherozjon Vahobov
Case No.: 2019 CV 32268
Type of Claim: Wrongful death resulting from a T-bone auto collision.
Judge: Arapahoe County District Court Judge Elizabeth Beebe Volz
Plaintiff’s Attorneys: Greg Gold of The Gold Law Firm and Chad Hemmat of Anderson Hemmat, LLC
Defendant’s Attorney: Rita Booker of the Law Office of Robert B. Hunter
On Sept. 1, 2019, Justin Gorodess was exiting the on-ramp from I-225 to southbound Yosemite and was in the process of making a left turn when his vehicle was T-boned on the driver’s side by a Toyota SUV driven by Sherozjon Vahobov. Justin Gorodess was killed on impact.
Beata Gorodess, Justin Gorodess’ mother, brought this action for wrongful death and claimed emotional upset, grief and loss associated with the loss of her adult son who was 30 years old. Justin Gorodess was a nuclear chemical engineer and was survived only by his natural parents. Justin Gorodess’ father was voluntarily dismissed from the case immediately before trial.
Beata Gorodess alleged that Vahobov ran a red light and seconds before the collision was driving more than 100 mph in the posted 35 mph zone of Yosemite. Beata Gorodess claimed that the defendant’s speed at impact was more than 55 mph. Vahobov said evidence showed he was driving 99 mph on Yosemite until roughly four seconds before the impact when he slowed to 55 mph hour which was the speed at impact with Justin Gorodess’ vehicle. The Denver Traffic Investigations Unit of the Denver Police Department ascertained speeds of Vahobov’s vehicle by downloading black box data from the car after the collision.
According to Vahobov’s attorney, on the Friday before trial, Beata Gorodess attempted to amend the complaint to add a Family Car Doctrine claim against Vahobov’s parents, and the court denied that motion.
Beata Gorodess was 62 years old at the time of the trial and didn’t seek any economic recovery. In closing, Beata Gorodess requested $115 million according to Vahobov’s attorney. Beata Gorodess offered to accept the $25,000 policy of insurance but required the insurance company to also produce the defendant for a deposition, and required two-years of tax returns and completion of Rule 69 interrogatories according to the plaintiff’s attorneys.
The court denied Beata Gorodess’ motion to lift the wrongful death cap for felonious killing. According to Vahobov’s attorney, the $436,070 statutory cap on non-economic damages applied.
Vahobov’s insurance company was willing to pay $25,000 but refused Beata Gorodess’ additional terms according to Beata Gorodess’ attorneys.
Beata Gorodess was awarded $33 million for non-economic damages and a judgment was entered for Beata Gorodess for $436,070.
MarkWest Liberty Midstream & Resources, LLC. v. Meridien Energy, LLC
Case No: 2018 CV 34272
Type of Claim: Breach of contract. Counterclaims: breach of contract and breach of implied duty of good faith and fair dealing.
Judge: Denver District Court Judge Darryl Shockley
Plaintiff’s Attorneys: Michael Lindsay, Ellie Lockwood, James Kilroy and Shane O’Connor of Snell & Wilmer, LLP
Defendant’s Attorneys: Brian Jackson and Branden Moore (Pro Hac Vice) of McGuire Woods, LLP; Edward Stewart of Wheeler Trigg O’Donnell
MarkWest Liberty Midstream & Resources, LLC, gathers, processes and transports natural gas. In March 2018, MarkWest contracted with Meridien Energy, LLC to construct an 11-mile section of a 28-mile natural gas liquids pipeline in West Virginia. MarkWest alleged it terminated the fixed price contract on Oct. 16, 2018, based on Meridien’s failure to move forward with the project and on significant environmental violations.
Meridien alleged it acted reasonably and in accordance and compliance with the parties’ agreements and all applicable law, regulations and industry customs and standards. Meridien claimed MarkWest delayed Meridien’s work and made it impossible for Meridien to maintain its work schedule and meet the project deadlines. Meridien also alleged MarkWest wrongfully terminated the contract and failed to compensate Meridien for services and materials provided and failed to pay delay or suspension damages. Meridien counterclaimed for damages. MarkWest generally denied Meridien’s allegations.
The court will determine the unjust enrichment counterclaim.
The court found in favor of MarkWest on the breach of contract claim and awarded $16,008,831.77 but didn’t award any amount on the breach of implied duty of good faith and fair dealing claim. The court also ruled against Meridien on the counterclaim of breach of contract. But it ruled in favor of Meridien on the counterclaim of breach of duty of good faith and fair dealing and awarded $1,510,362.
Northwoods Operating, LLC and Northwoods Energy, LLC v. Wrangler Well Service, Inc.
Case No: 2020 CV 32443
Type of Claim: Damages for breach of contract of a Master Services Agreement.
Judge: Denver District Court Judge Michael Vallejos
Plaintiffs’ Attorneys: Benjamin Strawn and Sarah Rice Carlson of Davis Graham Stubbs, LLP
Defendant’s Attorneys: Patrick Holscher and Elizabeth Grill of Schwartz Bon Walker & Studer, LLC; Rachel Ryckman of White & Steele, PC; Benjamin Wegener of Wegener Scarborough Lane, PC
Northwoods is an oil and gas production company and Wrangler Well Service is an oilfield services company. In August 2018, Northwoods drilled a horizontal well, the Aspen 13 Well, in the Powder River Basin in Converse County, Wyoming. Northwoods hired Wrangler to perform “workover services” at the Aspen 13 Well. In March 2019, Wrangler dropped tubing pipe downhole into the well. The tubing became lodged and resulted in a total loss of the well. The well had produced oil and gas for 17 days. Northwoods said the Aspen 13 Well was destroyed and some oil and gas leases were lost, and Northwoods claimed it sustained $12.4 million in damages as a result of the accident caused by Wrangler. Wrangler disputed Northwoods’ claim for damages and asserted that Northwoods failed to mitigate its damages by taking reasonable steps to return the Aspen 13 Well to production.
The court granted summary judgment in favor of Northwoods and found that Wrangler breached the MSA. It ruled in favor of Northwoods on its breach of contract claim regarding damages to the Aspen 13 Well, and awarded $10.6 million. And the court ruled in favor of Wrangler and against Northwoods on the breach of contract claim regarding its leases.
Jonathon Valaer v. Q3 Contracting, Inc.
Case No: 2020 CV 167
Type of Claim: Personal injury – negligence. Request for punitive damages.
Judge: Denver District Judge Ross Buchanan
Plaintiff’s Attorneys: Kurt Zaner and Sarah McEahern of Zaner Harden Law, LLP
Defendant’s Attorneys: Todd Theodora, Stephen Ladsous, Jessica Hernandez Diotalevi and Michelle Ellis of Theodora Oringher, PC; Joshua Brown and Frank Cavanaugh of Lee & Brown, LLC
Electrician Jonathon Valaer claimed he was severely injured on April 25, 2018 when he received an electric shock. Valaer was working at a mobile home park to connect underground power lines from several mobile homes to secondary pedestals which are electrical boxes that provide electricity to the mobile homes. He alleged Q3 Contracting was negligent for failing to properly terminate wiring inside an electrical pedestal at the site where Valaer was working. Valaer said his hand came in contact with the side panel of a pedestal which delivered an electrical shock to his body and caused severe and permanent injuries.
Valaer claimed Q3 Contracting acted with reckless disregard in failing to terminate the wires inside the pedestal, and Valaer sought punitive damages. Q3 Contracting admitted it was negligent for failing to terminate the wires, but denied it engaged in any reckless or intentional conduct. Q3 Contracting claimed Valaer, an experienced electrician, was comparatively negligent for failing to check the meter for power, for failing to wear gloves and for performing his job unsafely and that Valaer’s negligence was a cause of the shock. Q3 Contracting also disputed the nature and extent of Valaer’s claimed injuries and damages. Q3 Contracting said Valaer was briefly exposed to 120 volts of electricity and the 120-volt shock he received was so minor that he couldn’t have sustained the injuries he claimed.
The court found in favor of Valaer and awarded $1,000,000 for non-economic losses, $3,000,000 for economic losses and $4,400,000 for physical impairment for a total award of $8,400,000 — 100% negligence was charged to Q3 Contracting. The court found in favor of Q3 Contracting on Valaer’s claim for punitive damages.
Note: Pursuant to statute, the court reduced the jury’s award of non-economic damages to the current cap of $613,760, and entered judgment for Valaer for $10,780,255.55 including interest as of Oct. 22, 2021.
Aron Roudybush, by and through his conservators, Randall and Nora Roudybush, v. Catholic Health Initiatives Colorado d/b/a Centura Health-Penrose-St. Francis Health Services; Javine Horani, MD n/k/a Janine Horani McLaughlin, MD; and Janny Van Dusseldorp, RN
Case No: 2019 CV 32522
Type of Claim: Hospital and nursing malpractice against Penrose-St. Francis Health Services and Janny Van Dusseldorp, RN and medical malpractice against Javine McLaughlin, MD.
Judge: El Paso County District Court Judge David Prince
Plaintiff’s Attorneys: James Puga and Molly Greenblatt of Leventhal Puga Braley, PC
Defendants’ Attorneys: Gilbert Dickinson and Eric Holway of Jackson Kelly, PLLC represented Catholic Health Initiatives and Janny Van Dusseldorp, RN; Barbara Glogiewicz, Lisa Halstead and Sheryl Bridges of Caplan & Earnest, LLC represented Javine McLaughlin, MD
On Oct. 15, 2008, Nora Roudybush was admitted to Penrose-St. Francis Health Services for labor and delivery of her son, Aron Roudybush. Javine McLaughlin, MD, provided care to Nora Roudybush and Aron Roudybush during the labor and delivery of Aron Roudybush. Janny Van Dusseldorp, RN, provided nursing care and treatment to Nora Roudybush and Aron Roudybush during labor and delivery.
Randall and Nora Roudybush alleged that during the second stage of labor, McLaughlin repeatedly applied and utilized a vacuum extractor to Aron Roudybush’s head and he suffered a grade IV intraventricular brain bleed that resulted in permanent injuries and damages.
The Roudybushes claimed that McLaughlin, Van Dusseldorp and Centura Health Penrose-St. Francis Health Services were negligent and were a cause of Aron Roudybush’s permanent injuries and damages. The Roudybushes contended that Aron Roudybush should have been delivered earlier by performing a C-section. The Roudybushes further claimed that Penrose was negligent with regard to the training of its nursing staff and implementation of policies. Penrose, McLaughlin and Van Dusseldorp denied negligence and causation and disputed the nature and extent of Aron Roudybush’s claimed injuries and damages.
McLaughlin admitted that she placed a vacuum cup on Aron Roudybush’s scalp three times but said she didn’t apply traction or pull with the vacuum device. She asserted the application of the vacuum didn’t cause the intraventricular hemorrhage diagnosed in Aron Roudybush’s brain. Van Dusseldorp contended she acted reasonably and appropriately throughout the labor and delivery and she denied that she caused or contributed to Aron Roudybush’s injuries. Penrose denied any negligence.
The jury returned a verdict for McLaughlin and Van Dusseldorp. But the court found in favor of the Roudybushes and against Penrose and awarded $8,030,003.
MarkWest Liberty Midstream and Resources v. Rehoboth Pipeline Construction Services, LLC
Case No: 2019 CV 30226
Type of Claim: Breach of contract, breach of the implied covenant of good faith and fair dealing, breach of express warranty and indemnification. Counterclaims: breach of contract, fraudulent inducement, fraud and breach of duty of good faith and fair dealing.
Judge: Denver District Court Judge Marie Moses
Plaintiff’s Attorneys: Michael Lindsay, Ellie Lockwood, Shane O’Connor and James Kilroy of Snell & Wilmer, LLP
Defendant’s Attorneys: Robert Abrams and Neil Sullenberger of Abrams Sullenberger & Associates, LLC
MarkWest Liberty Midstream and Resources contracted with Rehoboth Pipeline Construction Services to construct a natural gas liquids pipeline. MarkWest agreed to pay Rehoboth a lump sum price. MarkWest alleged Rehoboth didn’t complete the project and abandoned it in November 2018. Rehoboth claimed MarkWest forced it off the job and alleged damages. Rehoboth counterclaimed and alleged MarkWest engaged in misconduct during the project. MarkWest generally denied Rehoboth’s counterclaims.
For MarkWest, the jury awarded $7,555,355.26 on each of the four claims, however, the claims were duplicative and judgment was entered for MarkWest for a total of $7,555,355.26. The court also found in favor of MarkWest and against Rehoboth on the counterclaims.
Lambland, Inc. d/b/a A-1 Organics, Inc. v. Heartland Biogas, LLC
Case No: 2018 CV 1060
Type of Claim: Breach of contracts – damages only.
Judge: U.S. District Court Judge Raymond Moore
Plaintiff’s Attorneys: K.C. Groves, Lidiana Rios and Regina Drexler of Ireland Stapleton Pryor & Pascoe, PC
Defendant’s Attorneys: Christopher Toll and Jessica Smith of Holland & Hart, LLP
On Aug. 7, 2015, Heartland Biogas and A-1 Organics entered into two contracts, an operating lease and a substrate services agreement. The court determined A-1 performed its obligations under the contracts, that Heartland breached the lease and agreement and that A-1 suffered damages and was entitled to recover damages resulting from Heartland’s breach of the agreements.
The issue for the jury to determine was the amount of A-1’s damages. Heartland asserted A-1 hadn’t calculated damages correctly under Colorado law and failed to mitigate its damages.
The jury awarded A-1 $6,038,723.89.
Clifford D. Dilka v. Austin T. Bradley
Case No: 2020 CV 030594
Type of Claim: Personal injury – auto collision resulting in a rollover. Impaired driver – THC. Admitted liability. Request for punitive damages.
Judge: Weld County District Court Judge Shannon Lyons
Plaintiff’s Attorneys: Jason Jordan, Michael Rosenberg and Nicholas Rowley of Jordan Herington & Rowley; Richard Kaudy of The Kaudy Law Firm, LLC
Defendant’s Attorneys: Rory Francis of Bayer & Carey, PC; Jason Klein, Susan Malcolm and R. Gregory Amundson (Pro Hac Vice) of Wood, Smith, Henning & Berman, LLP
On Aug. 8, 2019, Austin Bradley failed to stop at a stop sign at the intersection of Weld County Roads 84 and 15, and his Hyundai Sonata collided with Clifford Dilka’s Ford F350 that was pulling a house trailer.
The collision caused Dilka’s truck to roll over and Dilka was ejected. Dilka was found unresponsive at the scene and was airlifted to Poudre Valley Hospital for emergent care. Bradley sustained a head injury and reported no memory of the accident or the entire day leading up to the accident. Police discovered trace amounts of legally obtained marijuana products and paraphernalia in Bradley’s vehicle. Blood tests revealed Bradley had roughly 13 ng/ml of Delta 9 THC in his system more than one hour after the collision, over the presumptive limit which is 5 ng/ml under Colorado law. Bradley was acting within the course and scope of his employment at the time of the accident.
Bradley’s personal insurer and his employer’s insurer entered into an advance payment agreement and issued $1,240,000 pre-suit. Negotiations for the remaining $2,010,000 in available liability coverage failed and Dilka filed suit. Bradley admitted negligence for causing the collision, admitted Dilka was injured and that he incurred $809,552.09 in past medical expenses. Bradley said he was willing to concede Dilka may have some future medical expenses and may have been temporarily impaired while he was in a drug-induced coma in the ICU.
Bradley disputed the extent of Dilka’s claimed injuries and damages and expressly denied he acted with “willful and wanton” disregard to the safety of others, especially Dilka. Dilka requested punitive damages.
The court found in favor of Dilka and awarded $2,245,000 for economic losses, $0 for physical impairment or disfigurement and $2,755,000 in punitive damages for a total of $5 million.
The Ortho Agency, LLC, and Michael Shatzer v. Exactech U.S., Inc.; Giarratano Enterprises, LLC; Chad Giarratano and Flex Ortho, LLC
Case No: 2020 CV 33607
Type of Claim: Breach of contract, intentional interference with existing contract and with prospective business relationships, and misappropriation of trade secrets (claims by plaintiffs against all defendants); breach of fiduciary duty (plaintiffs’ claims against Giarratano Enterprises, Chad Giarratano and Flex Ortho). Request for punitive damages on the trade secrets claim. Exactech counterclaimed for breach of contract.
Judge: Denver District Court Judge Alex Myers
Plaintiffs’ Attorneys: Peter Koclanes and Nick DeWeese of Sherman & Howard LLC
Defendants’ Attorneys: Kimberley Dempster Neilio and Harrison Meyers of Greenberg Traurig, LLP represented Exactech U.S., Inc.; Bryan Kuhn of Bryan E. Kuhn PC represented Giarratano Enterprises, LLC, Chad Giarratano and Flex Ortho, LLC
Michael Shatzer owns The Ortho Agency, a Colorado-based medical device distributor. Exactech manufactures joint replacement instruments, implants and technologies. Chad Giarratano served as a sales representative and the director of sales for Ortho Agency.
Since August 2017, Ortho Agency and Shatzer sold Exactech and other manufacturers’ products to hospitals, surgeons and surgery centers in Colorado, Wyoming, Montana and in portions of South Dakota and Nebraska. Shatzer brought claims against Exactech and Chad Giarratano and his business entities in October 2020 after Exactech terminated the parties’ sales agency agreement in late September 2020.
Shatzer alleged that both prior to and after ending the agreement and the parties’ relationship, Exactech and Giarratano undertook a months-long stealth campaign to eliminate Shatzer and Ortho Agency as the exclusive distributor for Exactech in these territories, install Giarratano and his business Flex Ortho LLC as the new distributor going forward and work together to take over Ortho Agency’s business and its relationships with customers and poach 12 out of its 14 sales representatives. Ortho Agency alleged that Exactech breached the sales agency agreement with Ortho Agency, including by not paying a previously agreed upon termination payment in the event of a termination without cause.
Ortho Agency alleged that Giarratano breached his contractor agreement with Ortho Agency by violating non-disclosure of confidential and trade secret information, non-competition and non-solicitation provisions, including when he went to work directly for Exactech as the new distributor and solicited and recruited Ortho Agency’s sales personnel to work for his distributorship and Exactech going forward.
Ortho Agency also alleged that Exactech and Giarratano interfered with its existing or prospective business relations, and they misappropriated Ortho Agency’s trade secrets. Ortho Agency alleged that Giarratano, based on his role as a sales representative and the company’s director of sales, violated fiduciary duties he owed to the company. Exactech and Giarratano said Exactech provided notice it was not renewing the agreement on or about Sept. 30, 2020.
Exactech and Giarratano denied the allegations and alleged that Ortho Agency and Shatzer failed to mitigate their damages. Exactech and Giarratano denied they breached their respective business agreements with the Ortho Agency, denied they interfered with existing contract and prospective business relationships and denied they misappropriated trade secrets. In addition, Giarranto denied he breached his fiduciary duty to the Ortho Agency. Exactech counterclaimed and alleged Ortho Agency and Shatzer were liable for breach of contract for failing to return certain Exactech inventory following the end of the parties’ agreement. The Ortho Agency and Shatzer denied the counterclaim allegations.
The court found in favor of Ortho Agency and Shatzer and against Exactech, Giarratano and Flex Ortho on the breach of contract claims, intentional interference with existing contract and misappropriation of trade secrets. It also found in favor of Ortho Agency and Shatzer on the claim for intentional interference with prospective business relations, awarding $4 million.
But the court ruled in favor of Exactech on Ortho Agency’s claim of interference with prospective business relations. It found in favor of Ortho Agency and Shatzer on the claim of breach of fiduciary duty, awarding $1.00.