Verdicts by Practice Area: Sexual Misconduct Liability

Kirschbaum, Scott D; Jimenez, Elizabeth

Trelles & Bichler, LLC (Yvette M. Trelles)

Defense Verdict

 

On May 15, 2023, Partners Scott Kirschbaum, Esq., and Elizabeth Jimenez, Esq., obtained a complete defense verdict after a six-day jury trial in a professional liability matter styled Plaintiff v. Shawn Hearing d/b/a Therapeutic Touch Healing Center and Shawn Hearing, individually. The lawsuit arose out of a claim by the Plaintiff, a then 24 year old woman who was studying to be a massage therapist herself, wherein she claimed that Defendant, a licensed massage therapist in Ft. Pierce, performed a massage on her and injured her neck and shoulder by jamming his knee into her neck and shoulder. The Defendant massage therapist denied having performed a massage on the Plaintiff and insisted that he performed the massage on another willing patient as demonstration for the Plaintiff to learn massage techniques per her request to learn.   

 

As an aside, the Defendant and the Plaintiff had known each other for years and in fact, the Plaintiff resided in the Defendant’s home with her sister after Plaintiff’s mother died. The jury was permitted to know those limited facts about the prior relationship.  

 

The Defendant massage therapist admitted that even if he had performed a massage on the Plaintiff, he would never have used his knee on the patient’s body. His standard of care massage therapist expert, Nancy Porambo, LMT, also testified that the use of a knee during a massage would be below the standard of care and it did not make sense that the Plaintiff would be so injured during such a massage but not seek immediate medical attention. Notwithstanding, after refusing conservative treatment from one doctor, the Plaintiff then came under the care of orthopedic surgeon, Dr. Thomas Roush. Dr. Roush, after believing the interpretations of an MRI finding disc herniations and bulges at the C3-4, C4-5, C5-6, C6-7, put the Plaintiff through several procedure, most of which had been unsuccessful by his own admission. They included epidural injections, complete disc replacements, and rhizotomy to the tune of nearly $306,000.00 in medical costs. The jury was not pleased with the charges from Dr. Roush who also had a blended medical bill containing his medical charges for the Plaintiff as well as his “legal” charges as a retained expert in the case. Dr. Roush had also provided a life care plan for the Plaintiff that exceeded $400,000.00 of future care. He ultimately opined that the Plaintiff had recovered completely and had to retreat from many of his opinions about future medical needs and reverse himself in front of the jury.  

 

The defense’s medical experts, Dr. Michael Zeide (orthopedic surgery) and Dr. Gordon Sze (diagnostic radiologist) both opined that the imaging showed no evidence of herniation anywhere on the Plaintiff’s cervical spine.  Dr. Sze said that the imagining showed a minor bulge at the C5-6 level, which was not worthy of surgery. Dr. Zeide also opined that the surgeries and procedures were medically unnecessary and that the Plaintiff would have benefited from conservative treatment such as physical therapy, which had never been ordered by Dr. Roush. Dr. Zeide also opined that the Plaintiff suffered from a pre-existing and undiagnosed scoliosis. There was no evidence of mediated facet pain syndrome and this was proven by Dr. Zeide by the medical evidence and the Plaintiff’s presentation of symptoms.  

 

Over the course of six days, the jury listened to 12 witnesses including several before and after witnesses who were mainly family and friends of the Plaintiff to testify about how she was changed by the alleged incident. This also included the testimony of the four expert witnesses as stated above. The defense imported the theme of no good deed goes unpunished in voir dire, opening statement and closing argument.   

 

The Plaintiff asked the jury for an award of damages of approximately $500,000.00 and left the element of future pain and suffering up to the jurors’ common sense and own devices. While the case presented a tricky “he said, she said” scenario, after deliberating for about seventy-five minutes, the jury apparently believed the testimony of the Defendant massage therapist over that of the Plaintiff and rendered a complete defense verdict in his favor.  Read More.

Jimenez, Elizabeth.

Dismissal with Prejudice

On December 6, 2024, Chair of Sexual Misconduct Unit, Elizabeth Jimenez, proves case alleging the rape of a minor on client’s property was fraudulent.  Plaintiff went from a $2 million policy limit demand to agreeing to dismiss the case with prejudice in exchange for Defendants waiving their right to pursue attorneys’ fees and costs triggered by an expired nuisance value PFS and a 57.105 Motion for Sanctions.  There was also a Motion to Dismiss/Strike Plaintiffs’ Complaint for Fraud Upon the Court and an Amended Motion for Summary Judgment pending to be heard.

Plaintiff alleged her 14-year old daughter was raped by a 16-year old boy in the pool area bathroom of an apartment complex our client owns and operates.  Plaintiff claimed that as a result, her daughter had attempting suicide multiple times and suffered permanent and long term emotional and psychological damage that required residential treatment and lifelong care.  Plaintiff alleged she had to pull her daughter out of school because of the damages sustained.

Through initiative and due diligence, we discovered Plaintiff and her minor daughter lied in responses to written discovery and in deposition about the minor’s relationship with the alleged assailant, prior and subsequent romantic relationships, ownership and use of a cell phone, social media accounts, her communications with the alleged assailant through her phone and social media accounts, the names and information of numerous potential key witnesses, how and when the alleged incident occurred, the relationship between Plaintiff and her minor daughter, the cause of the suicide attempts, and the real reason the minor was pulled out of school. 

Plaintiff withheld any all information needed to specifically tailor any subpoena for cell phone or social media records by stating the minor didn’t have or use a cell phone, and did not have social media accounts within the year of the alleged rape.  We were told there were no email addresses, phone numbers, or account names.  Nothing existed.  They objected to all our proposed subpoenas for the records stating there were no records and the subpoenas didn’t have the necessary information to make them specifically tailored.  The Judge sustained the objections.  However, we were able to prepare a specifically tailored subpoena to the School Board, requesting certain communications to and from the alleged minor victim.  The School Board advised they had none, and after several weeks of calls, and explaining to them they should and how they could access them, they found 50,000+ of the alleged minor rape victim’s emails and sent it to us.  The emails were in Spanish, but our team was able to read them all because we read, write, and speak Spanish.  We discovered the minor falsely accused the alleged assailant, an ex-boyfriend, of rape for the following reasons:

1. her mother found out she had numerous boyfriends, was involved in intimate physical relationships with them, and gave her an ultimatum, either she was raped or she was a “slut” and she didn’t want to see her again; and
2. because her ex-boyfriend broke up with her after finding out she was cheating on him with other boys. 

Notably, their relationship ended a month prior to the alleged date of rape but she continued to harass him and he had to threaten to report her to the school if she did not leave him alone.  A month before the alleged date of rape, she had already moved on to another boyfriend. 

We were able to obtain favorable testimony from one of the investigating Deputies, who had previously worked for DCF, and had substantial experience investigating sex crimes.  Specifically, we elicited testimony about how he investigated hundreds of alleged rapes of minors where the alleged rape victims falsely accused ex-boyfriends of rape because they got caught by a parent and were afraid or they were upset an ex broke up with them or did something to them they weren’t happy with.  Here, we had both.  He also confirmed when the minor spoke to him, she acted like she didn’t know the alleged assailant and didn’t have a romantic relationship with him.

Additionally, during the minor’s deposition, we were able to pin her story down as to how the alleged assailant allegedly gained access to the pool area bathroom and were able to prove it was impossible to have occurred as she said.  Specifically, the minor claimed the alleged assailant gained access to the pool area bathroom by walking through the property’s clubhouse, on a weekday morning, prior to school, and that they walked to school together after the rape and made it to class on time.  Class started at 7am.  A map showed the property was about 1 mile- 1.5 miles away from school.  What she failed to consider was that the clubhouse did not open until 9am on weekdays, was locked, bolted, and protected by an alarm, and even residents do not have a key or code that would allow them access.  We were also able to pull all her emails for the entire month of alleged incident, which showed she was on her computer, emailing with a different boyfriend and friends, every morning, during the time she alleged she was being raped on our property.  She also never reported an alleged rape until her mother found out from her brother about all her relationships, 2 months after her breakup with the alleged assailant and 2 weeks after the alleged date of incident.  That is when the ultimatum was given, and the mother called police.  In fact, the CAD report noted the minor was not talking when the mother called police. 

The emails also provided us with all her social media information, phone numbers for her phone, the alleged assailant, all her boyfriends and friends, and photos she took and sent.  As a result, we were able to prepare specifically tailored subpoenas to obtain her cell phone records and responses to subpoenas served on the numerous social media providers, advising they did not have the content requested because too much time had passed and that only the account holder could access anything they saved through their account.  This created a potential spoliation issue to use against Plaintiff.  However, even more significant was  the emails we obtained, wherein she is telling her new boyfriend to sign into her social media accounts and delete all photos, communications, and content regarding her ex-boyfriend and alleged assailant, because her mom took her phone and was going to kill her if she saw it.

The emails also showed that Plaintiff was beating the minor and leaving bruises on her that prevented her from going to school on numerous occasions because “..if [she] can’t get the alleged assailant arrested, [she] is a slut.”  Notably, the police never arrested the alleged assailant. 

The minor discussed wanting to kill herself because her mother doesn’t love her, she only loves her brother, has her as a maid, cooking, cleaning, and doing laundry.  We were able to get background information during the deposition that Plaintiff came to the U.S. from Honduras with her son but left her minor daughter (the alleged victim) in Honduras.  The minor explained she was teased often about not having a father and that her mother didn’t love her.  Eventually, she came to the U.S. with coyotes by crossing the border and went on to live with her mother, who re-married.  Her mother did not pull her out of school immediately after the alleged rape.  She pulled her out of school 1 year later when Plaintiff had another baby with her new husband and had the minor daughter taking care of the newborn, cooking, cleaning, and doing housework.  At that point, the minor had already been suspended numerous times from school for skipping class with boys.

Right after obtaining the emails, Plaintiff’s counsel withdrew from the case and Plaintiff was pro-se.  She refused to dismiss the case and instead chose to retain another attorney by paying an hourly rate, to continue to pursue the fraudulent case.  We picked the specific emails needed to prove the fraud and obtained certified translations so we could prepare our Motion for Fraud Upon the Court, 57.105 letter, 57.105 Motion for Sanctions, and Amended Motion for Summary Judgment.  We attended a Court Ordered hybrid Mediation/Non-Binding Arbitration that resulted in Plaintiff’s agreement to dismiss the case with prejudice in exchange for Defendants’ waiver of their right to pursue attorneys’ fees and costs against Plaintiff triggered by the expired nuisance value PFS and a 57.105 Motion for Sanctions.  

Levin Papantonio Rafferty 

Motion to Dismiss

Fort Myers Senior Partner Patrick Boland, Esq.,  prevailed on Motion to Dismiss in a Federal Sex Trafficking matter styled Plaintiff v. Tampa Bay Hotels LLC dba Comfort Suites, et al. Our client was sued by an alleged victim of sex trafficking under the Trafficking Victims Protections Reauthorization Act (“TVPRA”). Plaintiff alleged that our client, along with several other major hotel brands and franchises, knowingly received financial benefit from a sex trafficking scheme, in violation of the TVPRA. Our client consistently maintained that it was simply in the business of renting hotel rooms to patrons, had no reason to believe that any sex trafficking was occurring and did not knowingly participate in a sex trafficking venture, as those terms are intended in the TVPRA. Prior to reaching a decision on the merits of Plaintiff’s claims, we obtained a dismissal of our client from the Federal Court presiding over the action. Our Motion to Dismiss was based upon the fact that Plaintiff’s Complaint constituted a shotgun pleading, and improperly joined several Defendants in what appeared to be factually distinct claims. We also argued that Plaintiff’s Complaint contained a myriad of impertinent, irrelevant and salacious allegations, which should be stricken. Ultimately, the Federal Court agreed with our arguments and dismissed the Plaintiff’s Complaint, without the need for further extensive investigation and litigation.