Former cheerleader fractures elbow from fall in stunt while working for free on a film. $2.6M. Los Angeles County.

Summary

The choreographer asked the unpaid actors to voluntarily perform an unplanned cheerleading stunt.

The Case

Case Name: Elliott v. Connect the Dots
Court and Case Number: Los Angeles County / BC582866
Date of Verdict or Judgment: Tuesday, March 13, 2018
Date Action was Filed: Tuesday, May 26, 2015
Type of Case: Negligence
Judge or Arbitrator(s): Hon. Margaret Oldendorf
Plaintiffs:
Kristin Elliott, 22.
Defendants:
Connect the Dots, Inc.
Type of Result: Jury Verdict

The Result

Gross Verdict or Award: $2,646,973.73
Award as to each Defendant:
There was apportionment but only one award. The jury found Kathryn Ferguson 50% at fault, Claude Racine 15% at fault and Connect the Dots 35% at fault. Plaintiff dismissed Racine, who was uninsured, prior to trial. Plaintiff never served Ferguson who lives in London. Just prior to trial, plaintiff opted to bifurcate the claim against Ferguson and pursue a several, rather than joint and several, judgment against Connect the Dots.
Contributory/Comparative Negligence: None.
Economic Damages:
Past medical expenses: $96,973.43

Future medical expenses: $225,000
Non-Economic Damages:
Past non-economic: $200,000

Future non-economic: $2,125,000
Trial or Arbitration Time: 2 weeks.
Jury Deliberation Time: 5 hours.

The Attorneys

Attorney for the Plaintiff:
KahnRoven, LLP by Robert Kahn and Jonathan Roven, Woodland Hills.
Attorney for the Defendant:
Lewis Brisbois Bisgaard & Smith LLP by Howard Slavin and Judy Steffy, Los Angeles.

The Experts

Plaintiff’s Medical Expert(s):
Kenneth Sabbag, M.D., orthopedic surgery, Pasadena.
Defendant's Medical Expert(s):
Domenick Sisto, M.D., orthopedic surgery, Los Angeles.
Plaintiff's Technical Expert(s):
Robert Jones, producer, Los Angeles.

Facts and Background

Facts and Background:
Plaintiff is an aspiring actress who was injured on August 13, 2013 while voluntarily performing in a film titled Punk Rear Guard. The film was conceived of and directed by defendant Kathryn Ferguson and was to be shown on a fashion website known as ShowStudio.com. The choreographer for the film was Claude Racine. The production company was Connect the Dots, Inc. Everyone involved in the film, including plaintiff, provided their services for free in exchange for a credit on the film.

The film was supposed to feature a number of dancers dressed as cheerleaders performing a ground-based dance routine. The dancers/cheerleaders were not supposed to perform any stunts and no precautions were taken for stunts. The choreographer asked for volunteers to perform a “basic” stunt. Plaintiff (an experienced cheerleader) and several others agreed to do the stunt which featured two cheerleaders holding a third up in the air. While practicing the stunt, plaintiff fell and fractured her right elbow.
Plaintiff's Contentions:
That production company Connect the Dots, Inc. was negligent for failing to be present to supervise the rehearsal and failing to stop the stunt and for not hiring proper personnel to assist with the stunt.
Defendant's Contentions:
That plaintiff assumed the risk of participating in the stunt, that Connect the Dots did nothing to increase the inherent risks in cheerleading/stunting, and that no special safety precautions were required for the stunt.

Connect the Dots also disputed the nature and extent of plaintiff’s claim for future medical care.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
Fractured radial head and capitulum, resulting in radial head removal. Failed radial head prosthesis necessitating an anconeus myoplasty. Migrating radius. Arthritis. Lifetime of pain.

Special Damages

Special Damages Claimed - Past Medical: $96,973.73 (Stipulated.)
Special Damages Claimed - Future Medical: $611,000

Demands and Offers

Plaintiff §998 Demand: First $1,000,000; second 895,000.
Defendant §998 Offer: $400,000

Additional Notes

Per defense counsel:

On the morning of closing arguments, the court issued its final rulings regarding jury instructions and the verdict form. At that time, the court declined Connect the Dot’s request to give an Assumption of Risk Instruction or to utilize the Assumption of Risk verdict form. Instead, the case went to the jury with a straight negligence verdict form which referred to multiple potential joint tortfeasors.

At trial plaintiff asked the jury to award $11,707,973.73.