It was alleged that defendants misdiagnosed metastatic cancer to the brain of the 83-year-old retired President of Pepsi Cola Bottling Company. As a result, the patient underwent unnecessary and excessive radiation to the whole brain, causing irreversible and diffuse cerebral dysfunction, with a lengthy neurological deterioration over several months, resulting in the patient's death in 1994.

Injury: Death

            The patient was survived by a 73 year-old wife and adult daughter.

Results: $1,249,000 award after motion for additur was granted. The jury awarded $249,000 for economic damages and zero damages for pain and suffering. Liability was appointed between the named defendant physician and two other defendants. The named defendants filed a Motion for Set-Off alleging the verdict should be reduced to zero because the settling defendant had paid approximately $275,000, which amount would exceed the award of economic damages. The trial court first granted the Motion for additur and awarded one million dollars for pain and suffering. The judge then granted the Motion for Set-Off, reducing the verdict to an amount still well in excess of Plaintiff's Proposal for Settlement, which filed in 1997.

Plaintiff's Expert Witnesses: Harvey Greensburg, M.D., Radiation Oncologist, Tampa, Fla.; Mary Edwards-Brown, M.D., Neuroradiologist, Indianapolis, Ind.; Gary Albrecht, Ph.D., Economist, Sarasota, Fla.

Defendant's Expert Witnesses: Alison R. Calkins, Radiation Oncology, Tampa, Fla.; Louis Rosa, M.D., Neurosurgeon, Clearwater, Fla.; Louis Caplan, Neurology, Boston, Mass.; Abram Recht, Radiation Oncology, Boston, Mass.

Plaintiff's Attorneys: C. Steven Yerrid and Ralph L. Gonzalez of The Yerrid Law Firm, Tampa, Fla.

Defendant's Attorneys: Kenneth C. Deacon, St. Petersburg, Fla.; Myles J. Tralins, Miami, Fla.

Smith v. Gauwitz, No. 96-7754-CI-7 (Pinellas County Judicial Circuit Ct., Florida April 22, 2000)

7/20/01