West Virginia Record

Wednesday, October 23, 2019

Walmart removes personal injury lawsuit to federal court

By John O'Brien | Jan 3, 2014

HUNTINGTON – Walmart has removed a personal injury lawsuit from Wayne County Circuit Court to federal court in Huntington.

On Dec. 16, Wal-Mart Stores removed Justin Robertson’s lawsuit against it, arguing he is seeking more than a $75,000 threshold for federal jurisdiction.

“Although Plaintiff does not specifically plead an amount of damages in his complaint, this case may be removed because it is facially apparent from the complaint that Plaintiff seeks damages in excess of $75,000,” the removal notice says.

“Under West Virginia law, Plaintiff’s recovery is theoretically unlimited and only a binding stipulation that they would not seek nor accept more than $75,000 could limit recovery. The Plaintiff’s complaint contains no such stipulation and also sets forth claims that the Plaintiff’s injuries are permanent in nature.”

The removal notice also says Robertson and his lawyer rejected a stipulation to seek less than $75,000.

On Nov. 28, 2011, Justin Robertson was legally on Walmart’s premises and was entering the Wayne location when there was standing water in the entrance way, according to a complaint filed Nov. 5 in Wayne Circuit Court.

Robertson claims the defendants failed to place a wet floor sign or cone near the entrance way and failed to place a mat between the doors leading from the parking lot to the interior facility.

While Robertson was walking between the parking lot and interior door, he slipped and fell on the standing water, according to the suit.

Robertson claims after he fell he began to experience pain, mostly in his lower back and the pain did not relent over the course of the evening, so he went to St. Mary’s Medical Center the following day.

During the examination, Robertson complained of neck pain and back pain, which was a shooting pain into both of his legs, according to the suit.

Robertson claims he was discharged with prescriptions for Lortab and Flexeril and restrictions from lifting and engaging in strenuous physical activity.

To treat his pain, Robertson next went to Three Rivers Medical Center in Louisa, Ky., on Dec. 1, 2011, where CT scans of his lumbar and cervical spine were taken and he was given injections to control his pain, according to the suit.

Robertson claims upon examination, straight leg lifting was positive on the left and right and tenderness and muscle spasms were noted bilaterally.

On Dec. 3, 2011, Robertson’s pain caused him to return to Three Rivers and he was given an injection of morphine, according to the suit.

Robertson claims he was next treated by Dr. Randall James at St. Mary’s Physical Medicine & Rehabilitation on Jan. 10, 2012, and he reported muscle weakness and radiating back pain, which caused him difficulty in standing and walking and difficulty sleeping.

James referred Robertson to Barboursville Physical Therapy, where he was evaluated on Jan. 18, 2012, and from January until July 2012, he was evaluated at various places and multiple tests were taken to diagnose Robertson’s pain, according to the suit.

Robertson claims on July 22, 2012, it was revealed from an MRI that he had neuroforaminal stenosis at multiple levels and disc bulges on multiple levels, with herniations.

The defendants were negligent in failing to take care of the standing water, according to the suit.

Robertson is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by J. Patrick L. Stephens of Underwood Law Offices.

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