Merlo et al. v. Bassi et al.

Malpractice, Negligent Ambulance Transport

Fresno County

Superior Court Judge Kristi Culver Capetan

$49.8 Million

Plaintiffs Attorneys: Baradat & Paboojian, Inc., Daniel R. Baradat, Warren R. Paboojian, Adam B. Stirrup

Defense Attorneys: Bowles & Verna Llp, Vanessa L. Efremsky, Pamela B. Shafer; Reback, Mcandrews & Blessey Llp, Robert C. Reback

Warren R. Paboojian

Plaintiff Nicholas Merlo, a 39-year-old mortgage broker in good health, was left in a permanent vegetative state after an ambulance crew removed his breathing tube en route to a Fresno hospital. The attendants were unable to reinsert the device, leading to a hypoxic brain injury. At the four-week trial over Merlo's malpractice and negligence claims, defendant American Ambulance pointed the finger at others--including the Pristine Surgery Center anesthetist who intubated Merlo when his oxygen levels fell during a routine colonoscopy--but jurors saw it otherwise.

In October 2021, following four hours of deliberation, they awarded Merlo and his wife Kaci Merlo nearly $50 million, finding American Ambulance grossly negligent and 100 percent responsible for the man's catastrophic injuries.

"Our expert outlined seven areas demonstrating gross negligence, but the key was pulling the tube in the ambulance," said plaintiffs' lawyer Adam B. Stirrup of Baradat & Paboojian Inc. "At trial the ambulance company tried to blame everybody else, but you could tell the jury felt it was hearing excuses." Merlo v. Bassi, 18CECG3026 (Fresno Co. Super. Ct., filed Aug. 13, 2018).

The big award launched a further battle after the trial judge slashed the sum to $11.7 million, based on Merlo's future medical expenses, and limited his and his wife's noneconomic damages to $250,000, based on the jury award cap imposed by California's controversial Medical Injury Compensation Reform Act.

That opened the door to another challenge by the plaintiff bar to MICRA, a law established in 1975 and often unsuccessfully attacked in voter initiatives and before the Legislature.

"A lot of states have something like this, but they've indexed it for inflation," said the plaintiffs' co-lead counsel, Daniel R. Baradat. "The plaintiffs' bar has tried to overcome it many times, but is always unsuccessful because the insurance companies and the medical societies oppose it."

Defense lawyers at Bowles & Verna LLP and Reback, McAndrews & Blessey LLP declined to comment. American Ambulance's general counsel Erik S. Peterson said the company will appeal the award. "Our paramedics treated Mr. Merlo like they would any patient, using their training and procedures to do everything they could to improve his declining condition."

For a cross-appeal seeking to restore the judgment, Baradat and colleagues brought on an appellate litigator, Robert S. Peck, who contends MICRA should not apply in gross negligence situations and that the statue violates constitutional protections. In 2014 Peck persuaded the Florida Supreme Court to strike down a state cap on noneconomic damages caused by medical negligence.

"This is the perfect case to show this unfair law is also unjust," Stirrup said.

- John Roemer

Daniel R. Baradat