New Trial to be Sought by Hispanic Woman Crippled by Mcdonald’s in Case Involving Bad Faith and Nine Years of Abuse of the Legal System
Citing several Superior court trial errors, including jury instructions that severely limited the award of damages last Friday to a crippled Hispanic woman for emotional distress only and ignored the severe pain and suffering caused during a nine-year saga of insurance bad faith and a malicious defense put on by McDonald’s Corp., her attorney announced today that he will ask for a new trial.
On Nov. 18, 2006, the civil jury in Mendoza vs. McDonald’s in Phoenix Superior Court awarded Maria Mendoza, the plaintiff, $250,000 for emotional distress arising out of an injury suffered to her right arm while working as a cook and laborer at McDonald’s in June 1997. The jury was specifically instructed to ignore her pain and suffering, as well as future medical expenses estimated to be over $1 million, lost income (past and future) and other damages, normally considered by juries when determining just compensation.
McDonald’s is self-insured under the laws of workers compensation, and at the time had its own claims adjusters, hence its liability for insurance bad faith if they act unreasonably in handling claims from its own injured employees. At a press conference here today at the Hilton Suites Phoenix, Mendoza’s attorney, Marcus Ambrose, announced plans to seek a new trial and, if a new trial isn’t granted, appeal the decision in the hopes of getting a fair trial “and a verdict sends a message loud and clear that workers have rights.”
Ambrose provided details of deep issues within the Industrial Commission of Arizona (ICA) that allowed McDonald’s attorneys to delay treatments for Mrs. Mendoza and the disability pay she was due. The system also allowed the attorneys to require Mrs. Mendoza to make repeat visits to doctors they had selected (called “doctor shopping” in the insurance defense business) for second, third and fourth opinions in hopes of having one of their “good doctors” issue an often illegitimate basis for denial of surgery, medical treatment, and to cut-off benefits and “get the comp case closed.” These company doctors, who often make big money doing these exams, are known as “closers,” he said.
“The jury rightly determined that McDonald’s had exhibited bad faith in trampling on Mrs. Mendoza’s rights and that she should be compensated,” said Ambrose, who speaks Spanish fluently and has been fighting the case for nine years without pay. “But they didn’t hear the whole truth and were deliberately misled by faulty jury instructions, and by McDonald’s attorneys abusive defense tactics.”
Ambrose said the attorneys for McDonald’s maliciously defended the case by telling the jury to ignore nine years of litigation before the ICA out of which the civil case arose as if it never happened. The ICA litigation included two awards and decisions finding that McDonald’s committed bad faith in handling the claims by Mrs. Mendoza, plus many other favorable findings along the way on her behalf. Further, the attorneys sought to mislead the jury by putting on a malicious defense where they blamed the victim and her attorney, despite the rulings of bad faith against McDonald’s in the case by the ICA.
The jury ignored the ruse, Ambrose said, and while the size of the damage award to Mrs. Mendoza was skewed by the process, the verdict represented a “symbolic victory for Maria and any workers whose workers compensation claims are routinely closed without regard to their rights under the law.”
At a new trial, when a jury is allowed to consider the pain and suffering, inability to enjoy life, her lost wages and the future crush of significant medical expenses she must endure because of this unbelievable trail of abuse, Ambrose predicted that “the outcome will be decidedly different.”
“This verdict represents a miscarriage of justice because the jury never heard the whole truth, but instead was subjected a mantra of misrepresentations by McDonald’s, their attorneys and the doctors they shopped for, to render dishonest medical opinions to mislead the jury.”
In the most recent ruling on October 10, 2006, the ICA found that, once again, McDonald’s wrongfully closed out Mrs. Mendoza’s claim as of October 2005 when they cut off all of her medical care and disability pay – a meager $220 every 14 days upon which she needs to survive since she is unemployable due to her medical condition and has been since the date of the accident in June 1997.
The ICA court reinstated all benefits, including medical and disability pay, and found further that Mrs. Mendoza, as a direct result of the unreasonable denials and delays in medical treatment by McDonald’s over the last nine years, is entitled to and needs “active medical care for her arm injury to include aggressive physical therapy, pain management (for a debilitating disease knows as CRPS, or complex regional pain syndrome) and behavioral treatment and psychological counseling for “major depression” that almost took Mendoza’s life after McDonald’s closed her claim by using diagnoses from two of their “closers.”
“Evidence shows that for more than nine years, Mrs. Mendoza was in severe and unrelenting pain, abused by McDonald’s and the system, discriminated against because she doesn’t speak English, and regularly denied her rights to timely medical care and disability following her accident while working at McDonald’s,” Ambrose said. “The bigger story is the social injustice being carried out day in and day out against unempowered, injured workers in workers' compensation claims/cases across the country. Human rights are being squashed daily and we need serious reform of the system.”
Ambrose said the evidence against McDonald’s is compelling and startling, which began with the first rejection of surgery by claims adjusters after the accident in June 1997 when she slipped and fell while carrying a tray of meat. As she fell, the tray contused her arm against a tray of buns. Mrs. Mendoza tried to continue working the rest of the day. Ambrose said she went home, iced her arm and took pain relievers. Despite the pain, she returned to work for two more days, before her suffering became too unbearable and she sought medical help.
“Mrs. Mendoza just wanted to receive medical treatment and return to work as soon as possible,” Ambrose said. “As a former field worker, the job meant a lot to her. She was extremely loyal. But she soon found herself being rejected at every turn for help. Instead of authorizing an inexpensive 15-minute outpatient surgery for carpal tunnel syndrome as prescribed, that would have returned her to work and full function, McDonald’s adjusters denied the claim. This launched a consistently malicious process to deny surgery, cut off her disability pay and refusal to authorize diagnostic testing or psychological care and pain management.”
Her surgeon, who was part of the McDonald’s medical provider network to treat its injured workers, pleaded with McDonald’s to authorize the surgery. He warned the company that further delay could lead to “permanent dysfunction.” After more than one year of litigation and frivolous and unethical defenses by McDonald’s attorneys, the administrative law judge in the hearings before the Industrial Commission of Arizona (ICA) ordered McDonald’s to authorize Mrs. Mendoza’s surgery – 19 months too late – and ruled that the company had acted in bad faith and that its denial of surgery was unreasonable.
Her symptoms worsened because of the untimely medical treatment, and an upper extremity specialist determined that Mrs. Mendoza now had radial tunnel syndrome (RTS) and scheduled another surgery. McDonald’s denied the surgery and then cut off all benefits.