Style of Case:
Hector Sosa vs. Hartley Hinds and Chucks’s Backhoe Service, Inc., a Florida corporation.

Court and Case No.:
Dade County Eleventh Judicial Circuit Case No. 08-17823 CA 09

Trial Judge:
Judge Jerald Bagley

Trial Date:
Special set number one trial for March 21, 2010.

Plaintiff’s Attorney:
Brett Alan Panter, from the Law Firm of Panter, Panter & Sampedro, P.A., 6950 North Kendall Drive, Miami, Florida 33156. E-mail: bpanter@panterlaw.com; Website: www.panterlaw.com; and Paul Contreras, Esq., 13155 SW 134th Street, Suite 105, Miami, FL 33186. E-mail: Cpaul392@aol.com

Defendants’ Attorneys:
Peter Baumberger, Esq. and Jennifer Remy-Estorino, Esq. from Kubicki Draper, 25 West Flagler Street, PH, Miami, FL 33130.

Description of Liability Aspect of Case:
On or about July 6, 2007, Mr. Sosa, a Cuban immigrant who obtained his US citizenship on January of 2009, was working at Trump Towers for Olympia Plumbing. To complete his pipe repair work on behalf of Olympia Plumbing, Mr. Sosa and his assistant, Odlanier del Torro, needed a damaged pipe to be excavated. At approximately 9:30 in the morning, Mr. Hector Sosa was working with Defendant, Hartley Hinds a backhoe operator. While operating the backhoe, Hartley Hinds caused the bucket of the backhoe to crush Mr. Sosa’s. Both Mr. Del Toro and Mr. Sosa testified that they were on a elevated, concrete platform adjacent to the excavation area. Mr. Hartley Hinds claimed that Mr. Sosa was not on the platform but on the ground next to the pipe being excavated when backhoe struck Mr. Sosa’s right foot.

Liability was severely contested in this matter under Florida’s worker’s compensation statutes, specifically § 440.10. In Florida, some subcontractors enjoy limited immunity from suit under certain circumstances. In this case, plaintiff was required to prove that there was gross negligence in order to recover. Mr. Sosa argued that the gross negligence committed by Hartley Hinds and Chuck’s Backhoe Service was the major contributing cause to his injuries.

The gross negligence exception to the worker’s compensation immunity is provided under Florida Statute § 440.10. There is no standard jury instruction for the gross negligence exception to worker’s compensation immunity. However, the plaintiff contends that the jury instruction would be as follows:

The issues for your determination on the claim of Mr. Sosa against Brown Hartley Hinds and Chuck’s Backhoe Service are whether Brown Brothers were Grossly negligent in their operation of the backhoe; and if so, whether such Gross negligence was a legal cause of loss or injury sustained by Mr. Sosa.

If the greater weight of the evidence does not support the claim of Mr. and Sosa on account of the alleged Gross negligence of Hartley Hinds and Chuck’s Backhoe Service, then your verdict should be for Hartley Hinds and Chuck’s Backhoe Service.

Gross negligence is the failure to use slight care. It is conduct of a person that a reasonably careful person would know probably and most likely would result in injury or damage to other persons or to property.

Description of Plaintiff:
Mr. Sosa was a hard working healthy single, 33 year old man at the time of the accident. He was not married and did not have any children.

Description of Injuries:
As a result of the crushing injury by the backhoe, Hector Sosa suffered open fractures of the second and third metatarsals, two of his toes. On July 6, 2007, Mr. Sosa underwent a repair of a 12 cm extensive traumatic laceration. Unfortunately, between July 7, 2007 and July 18, 2007, he began to develop gangrene, and on July 19, 2007, he underwent an amputation of the second and third digits of his right foot. On July 30, 2007, Hector Sosa needed an evacuation of a subungual hematoma of fourth nail bed and had wound healing with granulation tissues.

On August 13, 2007, Hector Sosa had an infected subcutaneous ulceration and had to undergo full thickness skin debridement. On September 12, 2007, he had an ingrown toenail related to the trauma that had to be removed. On September 26, 2007, Mr. Sosa started physical therapy. His doctors suggested that he have a custom orthotic.

Approximately three years after the accident, Hector Sosa went to Doctors’ Hospital complaining of back problems. An MRI reflected bulges at L1-2 and L4-5 and posterior disk protrusion at L5-S1 touching the bilateral S1 nerve root. The defense claimed that these back injuries were degenerative in nature and had nothing to do with the accident. They argued that Mr. Sosa did not make any complaints with respect to back problems until three years after the accident.

Treating Doctors:
Hector Sosa had two podiatric surgeons, Dr. Jean Holewinski and Dr. Marie Williams, attending to him. Dr. Holewinski, aboard-certified podiatric surgeon, performed Mr. Sosa’s initial surgery on July 6, 2007. Dr. Holewinski saw Mr. Sosa again on July 16, 2007 and recommended amputation of his toes. The amputations were performed on July 19, 2007.

Defense of this Claim:
The defendants denied liability and hired experts on liability and damages. The defendants further claimed that any and all responsibility for this incident rested with the general contractor, John Moriarty, a non-party to this case.

Lost Wages:
Hector Sosa was earning approximately $21.00/hour prior to the accident and was unemployed for more than a year after the accident. He now works at Wal-Mart, earning approximately $9.00/hour, working 32 hours a week with difficulty.

Expert Witnesses Hired by Plaintiff:
William Gulya, Jr., Ph.D., M.B.A.: liability – heavy equipment operation
Anthony M. Gamboa, Jr., Vocational Economics Inc.: vocational economics
Jacquelyn Vega Velez, MRC, MA, CRC, Vocational Economics, Inc.: vocational rehabilitation

Expert Witnesses Hired by Defendants:
Larry D. Leiman, BS, CSSM, Engineer, Safety Consulting and Training, Inc.: liability

Jury Verdict/Settlement:
The case settled two weeks before being number one specially set trial for $475,000.00.