Watson et al v. Dillon Companies, Inc. et al

Filing 917

Third Amended Final JUDGMENT re: 911 by Clerk on 12/26/13. Approved as to form by Senior Judge Wiley Y. Daniel (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 08-cv-00091-WYD-CBS
WAYNE WATSON and
MARY WATSON,
Plaintiffs,
v.
DILLON COMPANIES, INC., d/b/a KING SOOPERS, also d/b/a INTER-AMERICAN
PRODUCTS, INC.;
INTER-AMERICAN PRODUCTS, INC.;
THE KROGER CO. d/b/a KING SOOPERS, also d/b/a DILLON COMPANIES, INC.,
also d/b/a INTER-AMERICAN PRODUCTS, INC.;
GLISTER-MARY LEE, CORP.;
BIRDS EYE FOODS, INC. and JOHN DOE DEFENDANTS 9-20,
Defendants.

THIRD AMENDED FINAL JUDGMENT

Pursuant to and in accordance with Fed. R. Civ. P. 58(a) and the Notice of
Dismissal as to Certain Claims Only, filed on November 4, 2010, by the Honorable
Walker D. Miller, United States Senior District Judge, and incorporated herein by
reference as if fully set forth, it is
ORDERED that the third-party complaint of Gilster-Mary Lee Corporation is
dismissed with prejudice, against Chemical Technologies, Inc., each party to pay his or
its own costs and attorneys’ fees.

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Pursuant to and in accordance with Fed. R. Civ. P. 58(a) and the Order of
Dismissal with Prejudice of Defendant, Birds Eye Foods, Inc., filed on September 6,
2012, by the Honorable Wiley Y. Daniel, Chief United States District Judge, and
incorporated herein by reference as if fully set forth, it is
ORDERED that Defendant Birds Eye, Inc. is dismissed with prejudice.
THIS MATTER came before the Court and a jury of ten duly sworn to try the
matter on September 4, 2012, the Honorable Wiley Y. Daniel, United States District
Judge, presiding. On September 19, 2012, the jury returned its verdict as follows:
Verdict Form
Negligence Claim
Plaintiff Wayne Watson against Defendants Dillon Companies, The Kroger Co., and
Gilster Mary Lee Corporation.
1.

Has Wayne Watson proven by a preponderance of the evidence his claim of

negligence against the Defendant Dillon Companies?
Answer "yes" or "no" below.
Answer: Yes
2.

Has Wayne Watson proven by a preponderance of the evidence his claim of

negligence against the Defendant Kroger Companies?
Answer "yes" or "no" below.
Answer: Yes

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3.

Has Wayne Watson proven by a preponderance of the evidence his claim of

negligence against the Defendant Gilster-Mary Lee Corporation?
Answer "yes" or "no" below.
Answer:

Yes
Strict Liability, Failure to Warn, Negligence, and
Deceptive Trade Practices Claims

Plaintiff Wayne Watson against Defendants Dillon Companies, The Kroger Co., and
Gilster Mary Lee Corporation.
Defendant Dillon Companies
4.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Strict Liability against Defendant Dillon Companies?
Answer "yes" or "no" below.
Answer: No
5.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Failure to Warn against Defendant Dillon Companies?
Answer "yes" or "no" below.
Answer: Yes
6.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Negligence against Defendant Dillon Companies?
Answer "yes" or "no" below.
Answer: Yes

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7.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Deceptive Trade Practices against Defendant Dillon Companies?
Answer "yes" or "no" below.
Answer: Yes
Defendant The Kroger Co.
8.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Strict Liability against Defendant The Kroger Co.?
Answer "yes" or "no" below.
Answer:
9.

No

Has Wayne Watson proven by a preponderance of the evidence his claim of

Failure to Warn against Defendant The Kroger Co.?
Answer "yes" or "no" below.
Answer:
10.

Yes

Has Wayne Watson proven by a preponderance of the evidence his claim of

Negligence against Defendant The Kroger Co.?
Answer "yes" or "no" below.
Answer: Yes
11.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Deceptive Trade Practices against Defendant The Kroger Co.?
Answer "yes" or "no" below.
Answer: Yes

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Defendant Gilster Mary Lee Corporation
12.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Strict Liability against Defendant Gilster Mary Lee Corporation?
Answer "yes" or "no" below.
Answer: No
13.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Failure to Warn against Defendant Gilster Mary Lee Corporation?
Answer "yes" or "no" below.
Answer: Yes
14.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Negligence against Defendant Gilster Mary Lee Corporation?
Answer "yes" or "no" below.
Answer: Yes
15.

Has Wayne Watson proven by a preponderance of the evidence his claim of

Deceptive Trade Practices against Defendant Gilster Mary Lee Corporation?
Answer "yes" or "no" below.
Answer: Yes
IF YOU ANSWERED "NO" TO ALL OF THE ABOVE QUESTIONS, THEN STOP
HERE AND PROCEED TO PAGE 7 AND SIGN AND DATE THE VERDICT FORM,
WHICH MEANS YOUR VERDICT IS FOR THE DEFENDANTS. IF YOU ANSWERED
"YES" TO ANY OF THE ABOVE QUESTIONS, THEN ANSWER THE FOLLOWING
QUESTIONS.
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16.

Was Wayne Watson negligent?
Answer "yes" or "no" below.
Answer:

17.

No

Was Wayne Watson's negligence, if any, the cause of his own claimed injuries?
Answer "yes" or "no" below.
Answer:

18.

No

State your answers to the following questions relating to the Plaintiff's damages

that were caused by the wrongful conduct of the Defendants, whether the damages
were also caused by the negligence or fault, if any, of the Plaintiff or anyone else.
a. What is the total amount of Plaintiff Wayne Watson's damages, if any, for
economic losses excluding any damages for physical impairment? In computing the
amount of the Plaintiff's economic losses, you must exclude those amounts that you are
instructed to exclude.
You should answer "0" if you determine there were none.
Answer: $667,961
b. What is the total amount of Plaintiff Wayne Watson's damages, if any, for
noneconomic losses or injuries excluding any damages for physical impairment? You
should answer "0" if you determine there were none.
Answer: $1,000,000.00
c. What is the total amount of Plaintiff Wayne Watson's damages, if any, for
physical impairment ? You should answer "0" if you determine there were none.
Answer: $450,000.00
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19.

Taking as 100 percent the combined wrongful conduct of the Defendants and the

negligence or fault of the Nonparties and/or Plaintiff Wayne Watson that caused the
Plaintiffs' injuries, damages, or losses, what percentage was the wrongful conduct of the
Defendants and what percentage was the negligence or fault of the Nonparties and/or
Plaintiff Wayne Watson?
Answer:
Percentage charged to Defendant Dillon Companies:

5%

Percentage charged to Defendant The Kroger Co:

15%

Percentage charged to Defendant Gilster Mary Lee Corp.

80%

Percentage charged to Nonparty, Birds Eye Foods, Inc.:

0%

Percentage charged to Nonparty, Bush Boake Allen, Inc.:

0%

Percentage charged to Nonparty, Flavor Concepts, Inc.:

0%

Percentage charged to Nonparty, Fona International, Inc.
f/n/a Flavors of North America, Inc.:

0%

Percentage charged to Nonparty, Givaudan Flavors Corp.:

0%

Percentage charged to Nonparty, International Flavors
& Fragrances, Inc.:

0%

Percentage charged to Nonparty, Scisorek & Sons
Flavors, Inc.:

0%

Percentage charged to Plaintiff, Wayne Watson:

0%

Total (Must Total 100%)

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100%

20.

Has Wayne Watson proven beyond a reasonable doubt his claim for

exemplary or punitive damages against Defendant Gilster Mary Lee Corporation?
Answer "yes" or "no" below.
Answer: Yes
IF YOU ANSWERED "YES", INDICATE THE AMOUNT OF PUNITIVE
DAMAGES PLAINTIFF SHOULD RECOVER: $5,000,000.00
PROCEED TO QUESTION 21.
Loss of Consortium Claim
Plaintiff Mary Watson against Defendants Dillon Companies, The Kroger Co.,
and Gilster Mary Lee Corporation.
21.

Has Mary Watson proven by a preponderance of the evidence her claim of

loss of consortium?
Answer "yes" or "no" below.
Answer:

Yes

IF YOU ANSWERED "NO" TO QUESTION 21, THEN STOP HERE AND SIGN
AND DATE THE VERDICT FORM BELOW. IF YOU ANSWERED "YES" TO
QUESTION 21, WHAT IS THE TOTAL AMOUNT OF PLAINTIFF MARY WATSON'S
DAMAGES, IF ANY, FOR LOSS OF CONSORTIUM?
$100,000.00

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Pursuant to and in accordance with Fed. R. Civ. P. 58(a) and the Orders, filed on
August 28, 2013, the Order, filed November 13, 2013, and the Order, filed December
23, 2013, by the Honorable Wiley Y. Daniel, Senior United States District Judge, and
incorporated herein by reference as if fully set forth, the Second Amended Final
Judgment is amended to reflect the following damage calculation:
Gilster-Mary Lee
Economic
Non Economic
Physical Impairment

$
$
$

534,368.80
366,250.00
360,000.00

Wayne Watson Total Actual Damages
Pre-judgment Interest of 9% compounded
from the filing date of 1/15/08 to the judgment
date of 9/26/12

$ 1,260,618.80
$ 630,166.11

Wayne Watson Actual Damages +
Interest
Punitive Damages

$ 1,890,784.91
$ 1,890,784.91

Wayne Watson Damages against Gilster-Mary Lee

$ 3,781,569.82

Mary Watson Consortium
Pre-Judgment Interest at 9%

$
$

Mary Watson Damages against Gilster-Mary Lee
Total Damages Against Gilster-Mary Lee

$ 119,990.91
$ 3,901,560.73

Kroger
Economic
Non Economic
Physical Impairment

$ 100,194.15
$ 50,000.00
$ 67,500.00

80,000.00
39,990.91

Wayne Watson Total Actual Damages
Pre-judgment Interest of 9% compounded
from the filing date of 1/15/08 to the judgment
date of 9/26/12

$ 317,694.15
$ 158,810.96

Wayne Watson Damages against Kroger

$ 476,505.11
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Mary Watson Consortium
Pre-judgment Interest at 9%

$ 15,000.00
$ 7,498.29

Mary Watson Damages against Kroger
Total Damages Against Kroger

$ 22,498.29
$ 499,003.41

Dillon
Economic
Non Economic
Physical Impairment

$ 33,398.05
$ 50,000.00
$ 22,500.00

Wayne Watson Total Actual Damages
Pre-judgment Interest of 9% compounded
from the filing date of 1/15/08 to the judgment
date of 9/26/12

$ 105,898.05
$ 52,936.99

Wayne Watson Damages against Dillon
Mary Watson Consortium
Pre-judgment Interest at 9%
Mary Watson Damages against Dillon

$ 158,835.04
$ 5,000.00
$ 2,499.43
$ 7,499.43

Total Damages Against Dillon
Subtotal
Attorney Fees
Costs

$ 166,334.47
$ 4,566,898.60
$ 826,500.00
$ 387,189.33

Total

$ 5,780,587.93

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DATED at Denver, Colorado this 26th day of December, 2013.
FOR THE COURT:
JEFFREY P. COLWELL, CLERK

/s/ Edward Butler
Edward Butler,
Deputy Clerk
APPROVED AS TO FORM:

/s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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