A state judge has set aside a $2 million jury verdict and ordered a new trial for a man who contends he suffers from a disabling painful condition from a 2005 slip and fall at the Mai Tai Bar at Ala Moana Center.

A jury last year awarded Ernesto Verdugo $2 million in general damages and $144,000 in special damages. But Circuit Judge Patrick Border last week granted a new trial requested by Bubba Gump Shrimp Co., which owns the open-air bar.

Border said Verdugo’s lawyer, Howard Glickstein, made improper closing arguments to the jury that constituted “hyperbolic fiction” when he suggested someone might slip, fall and die at the bar.

Both sides say they expect to prevail in a retrial.

Glickstein said Tuesday he and his client were “shocked” by the ruling Border issued Friday. He said they will ask the judge to reconsider the ruling, but if it’s denied, they expect to get an even higher award at a retrial.

David Minkin, one of lawyers retained by Bubba Gump after the trial, said the company is “very pleased” with the judge’s decision to reverse the “improper verdict.”

He said they are confident that the jury will agree with them on a retrial that the bar is not liable.
Verdugo, 45, a Kauai resident who was living on Oahu in 2005, testified he had a couple of beers as a designated driver before he slipped on the floor slick with beer at the crowded bar and injured his leg.

Verdugo suffered a serious blood clot and later a condition called post-thrombotic syndrome, a lifelong condition that impedes circulation, causing chronic swelling in his leg, according to his lawyer.

Glickstein said Verdugo, a former tour guide and bodybuilder, is still unable to work.

The jury returned the verdict in September after eight days of trial.

In a 16-page ruling, Border cited Glickstein’s remarks in closing arguments that the jurors should not be surprised if they read in the newspaper the next day that “somebody” slipped, fell and died at the Mai Tai Bar.

Glickstein told the panelists they have a “great” obligation and responsibility and urged them to “do justice.”

Border said the remarks had no relationship to the facts of the case. He said there was no testimony that any patron at Bubba Gump’s establishments in the U.S. ever slipped, fell and died from injuries.

The judge said the argument suggests to the jury that it may “fantasize” about future catastrophes “suffered by non-parties to the case, regardless of how far-fetched and unsupported by the evidence they may be.”

The judge said the jury was left with an improper impression about the issue of damages because Bubba Gump’s lawyers did not object to Glickstein’s remarks and that the judge did not strike those comments and re-instruct the jury about damages.

Glickstein said he cited four Hawaii appellate rulings that held the failure to object to a closing argument is a waiver of the objection.

He also said his remarks were not improper and were based on testimony and evidence, including the bar’s safety manual, which said falls are the second leading cause of deaths and serious injuries in the U.S.

“The point of the statement to the jury was to show that the Mai Tai Bar’s deliberate indifference to the possibility of death is negligence,” Glickstein said.

Minkin said the court “rightfully recognized that the plaintiff’s attorney improperly demonized the Mai Tai bar, which we believe tainted the verdict.”

Border said another reason for a new trial is that the jury was given an incomplete instruction on the law of an owner’s liability over its premises.