Fred Penney: ‘Huge Win For Vikings Football Player’

My partner Kevin L. Elder and associate Garrett M. Penney received an excellent jury verdict in Placer County on Thursday, Sept. 22, against Defendant CEP America and its partner Dan Nadler MD. After four and a half hours, the jury returned a verdict of $2,280.961, which included $540,961 in past economic losses, $240,000 in past noneconomic damages, and $1,500,000 in future noneconomic losses. The general damages will be reduced to $250,000 per MICRA, leaving a net verdict of $790,000 plus prevailing party costs of several hundred thousand dollars. Defense counsel was Dominique Pollara.

The plaintiff, Austin Wentworth, was a 24-year-old young man who, while at home during the late morning of March 11, 2015, suddenly developed pain and bilateral tingling and numbness in his lower extremities (left greater than right, below his knees without acute trauma). His fiancé drove him to the Emergency room at Sutter Roseville Medical Center, barefoot in gym shorts (without shoes, socks or flip flops) due to the perceived medical emergency. Austin was seen within 10 minutes by the triage team of T. Chambers PA and a Sutter nurse.

Austin reported that he was an elite athlete in the NFL playing under contract with the Minnesota Vikings as an offensive lineman. He had not played football in over three months and had not lifted weights in more than five days. There had been no trauma. MRIs of the full spine were ordered. He was roomed about one and a half hours after presenting to the ER which was followed by a nursing assessment and Dr. Nadler’s initial exam. Morphine was Rx’d for pain noted to be an 7-8. Foot and ankle pulses were reportedly normal although there was documentation of “questionable” pulses. A Handheld doppler was not used or considered. Dr. Nadler followed the direction of the triage team suspecting a neurologic spine disorder and the plan remained for MR imaging of the spine when the machine was available. Austin and his fiancé waited, waited, and waited for more than four and a half hours from presentation to the emergency department for imaging.

At about 5:15 p.m. (three hours later) as Austin was being wheeled out to MR Imaging, his dad complained to Dr. Nadler that his son remained in tremendous pain and if more medication could be given in light of the two-hour procedure for imaging. Dr. Nadler and hospital staff suddenly realized that Austin’s problem may have been vascular in nature. A handheld doppler was used, revealing absent pulses in Austin’s lower extremities. A CTA was ordered and ultimately bilateral emboli were found in Austin’s femoral arteries. Vascular surgery was consulted more than seven hours after Austin presented to the hospital. He was taken to OR and three surgeons worked side by side to perform bilateral embolectomies and fasciotomies. Austin stayed in the ICU for 10 days and was discharged two weeks later. He needed a total of five surgeries including debridement. Austin was left with left foot drop and loss of muscle/tendon causing significant ambulation problems. Austin could not return to play football for the Vikings.

The cause of the emboli was found to be a fibroma in Austin’s heart. Clot had built up around the fibroma and finally dislodged, travelling down the aorta where it split in two at the bifurcation (saddle) and then became stuck in each femoral artery of the lower legs. The Defendants’ vascular expert Marc Levine described the emboli as similar to a piece of “jerky” that after hours of resting on the aorta saddle “cleaved” and then travelled down the legs. His story was unbelievable.

In July 2015, Austin was referred to the Mayo clinic by the Minnesota Vikings for a second opinion to confirm the fibroma as the cause of the emboli. Austin immediately underwent open heart surgery to remove the fibroma. There were no complications. He was placed on blood thinners for six months post-surgery and cleared of all restrictions. However, although his cardiovascular condition was resolved, he remained without muscle strength in his left leg and drop foot both of which precluded him from returning to football. He was under contract with the Vikings for three years. Had his vascular condition been timely recognized, he would not have lost his motor strength in his lower left leg. Because of his open-heart surgery in July 2015, he would have had to sit out the 2015 season. George Paton the Assistant General Manager of the Vikings at the time testified that it was “likely” Austin would have returned to the team and made the 53-man roster assuming a number of facts all of which were undisputed in this last trial. He lost the 2016 season which would have earned him $540,000 net without benefits. Austin did not claim loss of income other than for this single remaining year under his contract.

The complaint was filed on June 9, 2016, with the blessing of Dr. Robert Suter, an emergency medicine physician, practicing out of Texas and Oklahoma. Dr. Suter made an excellent witness as his background includes the US Army Medical Corps where is current rank is Brigadier General. The complaint included Sutter Roseville and T. Chambers PA for their part in the delay to diagnose. Sutter was represented by Jonathon Corr of Porter Scott. Experts were retained by all sides (13 total) and the case tried to a jury in December of 2021, spilling over into January of 2022. Plaintiff rested before Christmas and ten dark court days followed with the defense given a fresh start the first week of January 2022.

Three alternate jurors had been selected for a total of 15 jurors. Four jurors were lost to Covid-19. Eleven remained for closing arguments. The parties agreed to close with 11 jurors. The defense refused plaintiff’s request to drop the majority from nine to eight with only 11 total. During deliberations, one of the 11 jurors had to quarantine in her home and was heard by phone audio only. The jury returned after a few hours finding both defendant Sutter and T. Chambers free of negligence. They were, however, deadlocked on whether Dr. Nadler was negligent with eight against him and three in favor. The jury remained out deliberating for what seemed like eternity and after three days declared they could not reach a majority of nine. Yelling amongst the jurors was overheard as they tried to reach a verdict to no avail. A mistrial was declared and the case set for another jury trial to commence on Sept. 6.

A demand was made by the plaintiff for Dr. Nadler’s policy limits of 1 million in early summer. No response was given. It remains unknown if the decision to try this case again to the jury was Dr. Nadler’s by refusing to consent or his insurance carrier, the Mutual, with his consent.

Plaintiff served a CCP 998 offer to compromise on defendant Dr. Nadler in the amount of $349,999 on Dec. 30, 2019. Dr. Nadler served a 998 for a waiver of costs.

The jury did not like the defendant’s expert David Barnes MD (emergency medicine) UCDMC who has been retained 63 times on behalf of the defense and just recently a single time by the plaintiff’s counsel. He admits that ER Physicians are “loathe” to testify against one another in California and that is the reason he only does defense work. Incredible.

The plaintiffs’ causation expert was excellent. Dr. Gerald Treiman out of Utah described vascular medicine in a very simple terms for the jury. The ABCs of medicine include circulation and confirming the presence of pulses before a vascular concern can be ruled out. Dr. Mathew Budoff, cardiology, out of UCLA provided testimony that Austin did not have any cardiovascular limitations to returning to the NFL. He was well liked by the jury. Dr. Eric Giza provided testimony relative to Austin’s current condition and limitations. Finally, Craig Enos shared his economic perspective with the jury with reference to the NFL and the collective bargaining agreement identifying the lost earnings.

A huge win for the little guy after seven years, COVID and the mistrial.

* This blog is not meant to dispense legal advice and is not a comprehensive review of the facts, the law, this topic or cases related to the topic. For a full review of our disclaimer and policies, please click here.

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