Performer's stage dive at pre-Grammy show is shown to injure plaintiff. $4.5M. Los Angeles.

Summary

Young woman suffers stroke after being struck by stage diving DJ at concert. Both liability and causation were contested.

The Case

  • Case Name: Fraissl v. Moore et al.
  • Court and Case Number: Los Angeles Superior Court / BC535745
  • Date of Verdict or Judgment: Tuesday, November 20, 2018
  • Type of Action: Negligence, Premises Liability
  • Plaintiffs:
    Jennifer Fraissl 24, college student.
  • Defendants:
    Skrillex (real name Sonny John Moore)
    Lost Boys Touring, Inc.
    Belasco Entertainment Theater, Inc.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $4,525,402
  • Contributory/Comparative Negligence: Moore: 35%; LBT: 40%; Belasco Theater: 10%; Plaintiff: 15%.
  • Economic Damages:

    $2,262,701

  • Non-Economic Damages:

    $2,262,701

  • Trial or Arbitration Time: 4 1/2 weeks.
  • Jury Deliberation Time: 2 1/2 days.
  • Jury Polls: 12-0

The Attorneys

  • Attorney for the Plaintiff:

    Emergent LLP by Seth Rosenberg, San Francisco.

    Minami Tamaki LLP by Mark Fong and Seema Bhatt, San Francisco.

  • Attorney for the Defendant:

    Baker McKenzie by Barry Thompson, Joe Ward, Kimberly Rich, Jessica Brent, and Michael Hidalgo, Los Angeles. (For Skrillrex and Lost Boys Touring, Inc.)

    Lewis Brisbois by Judy Steffy, Los Angeles. (For Belasco Theater.)

The Experts

  • Plaintiff’s Medical Expert(s):

    Wade Smith, M.D., vascular neurology, San Francisco.

    Steven Hetts, M.D., interventional neuroradiology, San Francisco.

    Zahra Ajani, M.D., stroke neurology, Los Angeles. (Treating physician.)

    Edwin Jacobs, M.D., hematology, Burbank.

    Les Zackler, M.D., neuropsychiatry, Sherman Oaks.

    Dan Zehler, PsyD., neuropsychology, Long Beach.

    Steven Feinberg, M.D., physical medicine and rehabilitation, Palo Alto.

    Anna Piotrowski, M.D., psychiatry, San Jose. (Treating physician.)

    Carol Hyland, life care planner/vocational rehabilitation, Lafayette.

  • Defendant's Medical Expert(s):

    Wouter Schievink, M.D., neurosurgery, Los Angeles.

    Barry Pressman, M.D., neuroradiology, Los Angeles.

    Barry Jacks, M.D., psychiatry, Beverly Hills.

    Tony Strickland, Ph.D., neuropsychology, Los Angeles.

    Stacey Helvin, life care planner, Anaheim.

  • Plaintiff's Technical Expert(s):

    Rajeev Kelkar, Ph.D., accident reconstruction and biomechanics, Los Altos.

    Steve Kaufer, security, Palm Springs.

    David Fractor, economics, Pasadena.

  • Defendant's Technical Expert(s):

    Janine Smedley, biomechanics, Phoenix, AZ.

    Jubin Merati, Ph.D., economics, Los Angeles.

Facts and Background

  • Facts and Background:

    On February 11, 2012, plaintiff attended a pre-Grammy show at The Belasco Theater in Los Angeles, headlining the electronic dance music ("EDM") DJ known as Skrillex. Plaintiff was a big EDM fan. She had seen parts of Skrillex's sets three times prior, but testified she had never seen him stage-dive (though he had in fact done so at the end of each of these sets).

    At the end of the show, Skrillex got on his DJ stand, beckoned the crowd closer, and dove into the crowd. Plaintiff was near the front of the stage with her boyfriend. Skrillex's road manager, LBT employee Robert Dyar, pulled Skrillex out of the crowd by his leg, causing a crowd of people to surge toward the stage where plaintiff was standing, and causing Skrillex to be dragged over plaintiff.

    During the stage dive, plaintiff felt a blow to the back of her head and assumed Skrillex had kicked her. Her boyfriend said he saw this happen. However, amateur videos taken of the stage dive did not show Skrillex kick plaintiff. Moreover, the videos showed plaintiff smiling before and after the dive. She did not report the incident to the defendant theater or seek medical attention after the show.

    Plaintiff texted her boyfriend 18 hours after the show: "I have terrible whiplash from getting kicked in the head." Sixteen days after the show, plaintiff suffered a pontine stroke (a stroke in her pons) due to dissection of her left vertebral artery.

  • Plaintiff's Contentions:

    That Skrillex knew his stage-diving led to unpredictable results, such as crowds falling over, people being knocked down, bloody noses, broken arms, etc. Moreover, his stage-diving was unnecessary for his performance and unreasonable. That Mr. Dyar and LBT contributed to the injury by dragging Skrillex over plaintiff during the dive, and by not holding a pre-show security briefing with The Belasco Theater to confirm whether Skrillex would stage-dive or not.

    That Belasco Theater was negligent for not having a pre-show meeting with Skrillex's team, which could have resulted in them preventing Skrillex from stage-diving. Also, that the venue was liable for overselling the event, not having a security plan for the show, and using improperly licensed security personnel.

    The jury was shown video footage of Robert Dyar's "look of shock" when he realized Skrillex was going to stage-dive. This led to Dyar's hasty decision to drag Skrillex out of the crowd. Video footage also showed that the audience was not expecting a stage dive (a still shot showed a young man in the front row looking at his phone at the time of the dive). 

    A central issue was whether plaintiff's vertebral artery dissection was traumatic (i.e., caused by the blow to her head during the stage dive) or spontaneous (i.e., caused by risk factors unrelated to trauma.)

    UCSF stroke neurologist Wade Smith, UCSF interventional neuroradiologist Steven Hetts, and plaintiff's treating stroke neurologist, Zahra Ajani all testified that trauma from the show caused her dissection and stroke. Whiplash is a well-known cause of vertebral artery dissection, and spontaneous dissections and strokes are rare for 24-year-olds to suffer. Moreover, the medical literature establishes the median time between dissection and stroke is two weeks, which placed plaintiff in the classic time frame for stroke due to dissection. Finally, the experts for both sides testified the primary sign of a vertebral artery dissection is neck pain. Plaintiff's boyfriend testified she complained of neck pain immediately after the show, and again when she sent the "whiplash" text to him 18 hours later. 

  • Defendant's Contentions:

    Defendants argued that the videos showed, contrary to plaintiff and her boyfriend's testimony, that Skrillex did not kick plaintiff. Defendants also claimed that stage-diving at EDM shows is customary and that plaintiff, an avid EDM fan, knew or should have known this. Skrillex testified he stage-dove hundreds of times without anyone complaining of being injured. Skrillex and LBT both argued Mr. Dyar acted as he normally did when Skrillex stage-dove at the concert.

    In contrast, Belasco Theater said they had no idea that Skrillex stage-dove at his shows, and were "shocked and "surprised" when he did so that night at their theater.

    Defendants argued that plaintiff had numerous risk factors for spontaneous dissection, such as paroxysmal coughing due to an upper respiratory infection, recent alcohol consumption, fibromuscular dysplasia, vomiting, and self-cracking of her neck. Defendants also argued the trauma may not have happened at all, since the videos did not show Skrillex kicking her in the head.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    At the time of her stroke, plaintiff was about to graduate from UC Irvine with a degree in Anthropology. An animal lover, plaintiff wanted to become a veterinarian like her sister.

    Due to her stroke, plaintiff suffers from permanent left-sided hemiparesis, which results in her dragging her left foot when she walks and having limited use of her left hand. She also suffers from severe depression and anxiety. Her treating neuropsychologist diagnosed her with pseudobulbar affect ("emotional incontinence") and a mild neurocognitive disorder with sustained attention and focus.

    All parties agreed plaintiff had hemiparesis, depression, and anxiety. Defendants argued her depression and anxiety were merely mild, as they pointed out she still traveled extensively after her stroke. They argued their psychological testing showed no neurocognitive disorder.

    Plaintiff's retained neuropsychiatrist, Les Zackler, and retained neuropsychologist, Daniel Zehler as well as plaintiff's treating psychiatrist, Kaiser doctor Anna Piotrowski, testified her depression and anxiety were severe.

    Plaintiff began working for the online job service Task Rabbit part time in 2017, which was her only work history. She took one class at community college in Biology and got an A, but said her anxiety prevented her from taking more classes.

Demands and Offers

  • Plaintiff §998 Demand: $1,000,000 to Belasco Theater.
  • Defendant Final Offer before Trial: Moore/LBT: $300,000; Belasco Theater: $500,000.

Additional Notes

In mediation shortly before trial, plaintiff accepted a mediator's proposal for $1,750,000, which defendants rejected.

At trial, plaintiff requested as wage loss the difference between what a college graduate working full time would earn and what plaintiff earned from her part-time work at Task Rabbit. Defendants claimed she suffered no wage loss at all.

Plaintiff presented a life care plan of approximately $2,200,000, and defendants offered one for approximately $600,000.

Defendants called as their expert a world-renowned expert on cerebral artery dissection, neurosurgeon Wouter Schievink from Cedars-Sinai. However, it was found that in a prior deposition Dr. Schievink had given years earlier, he had testified the Disneyland "Tower of Terror" ride caused a vertebral artery dissection in a man who suffered whiplash on the ride. As with Jennifer, the man complained of neck pain immediately, and his stroke occurred three weeks later.  Dr. Schievink also admitted under cross-examination that his deposition testimony as to when Jennifer suffered her dissection was different from his trial testimony, and that if Jennifer indeed had been struck in the back of the head or neck during the stage dive, that could change his opinion.

Separately, defendants' neuroradiologist, Barry Pressman from Cedars-Sinai, opined that the clot that caused Jennifer's stroke was no older than seven days old, and most likely two or three days old. This conflicted with Dr. Schievink's opinion that the dissection and stroke occurred at the same time.

Disclaimer

This is not an official court document. While the publisher believes the information to be accurate, the publisher does not guarantee it and the reader is advised not to rely upon it without consulting the official court documents or the attorneys of record in this matter who are listed above.

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