Verdicts by Practice Area: Professional Liability | E&O

Kirschbaum, Scott D.; Soto, Christine G

Law Office of Deirdre DiBiaggio and Hutchison Tubiana PLLC

Defense Verdict

On January 16, 2026, Miami Partners Scott Kirschbaum and Christine Soto secured a complete defense verdict in a professional liability action styled Plaintiff AB v. Spa and Defendant LP. The plaintiff sued defendants Spa and massage therapist LP, alleging negligence in the performance of a massage.

The plaintiff claimed that Defendant LP performed a maneuver outside the scope of a standard massage, allegedly causing injuries to spinal discs that required two surgeries, with a third surgery recommended. The defense presented expert testimony from Dr. Mark Kaye and Dr. Rafael Fernandez, both of whom opined that the plaintiff’s alleged injuries were pre-existing conditions. After approximately two hours of deliberation, the jury returned a defense verdict. Post-trial motions remain pending. The defense previously served a proposal for settlement in 2023, entitling the client to seek recovery of attorney’s fees.

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.

Professional Liability | E&O (Defamation)

McKinley, Katherine E.; Brewer, Zachary J.

Junior Partners Katherine E. McKinley and Zachary J. Brewer obtained a full defense verdict on April 24, 2024 in a defamation case styled Plaintiff v. YMCA, et al. Plaintiff was the 62 year old male chair of the board of advisors for a camp and one of the Defendants was a 20 year old female waterfront director of the camp. Defendant reported Plaintiff for kissing her on the face, making inappropriate jokes, and holding her inappropriately on a jet ski ride. The camp terminated Plaintiff’s volunteer status. Plaintiff sued the Defendants alleging his father’s death was the result of alleged defamation and sought damages for the loss of his father.  

 Plaintiff asserted that Defendant completely fabricated her complaints out of a political disagreement and/or to seek leverage in her employment. In arguments, Plaintiff blamed Defendant for the death of his father by suicide two months later and ultimately asked the jury to hold Defendants responsible for his father’s death, as well as alleged severe and permanent mental anguish, with physical manifestations.  

 The Court granted directed verdict to two Defendants. Plaintiff proceeded solely against two others. Following closing arguments, the jury deliberated for less than two hours and returned a complete Defense verdict establishing that Defendant had not defamed Plaintiff with her reports of sexual harassment.  Read More