Minnesota Lawyer
Tholen and his wife caught a commercial flight home and went to Fairview Clinics, where he was examined by a licensed physician for the first time, 35 hours after his injury. In Mexico practitioners had put his leg in a hard cast, and he developed a blood clot. Despite “heroic” efforts at Fairview, Tholen lost his leg above the knee because of the delay in treatment, said his attorney, Patrick Arenz. (Fairview’s medical care is not an issue in Tholen’s case.)
Arenz’s closing argument told the jury, “A few times you really get a chance to make a difference. This is one of those times. This is one of those opportunities where your verdict can prevent this tragedy from ever happening again to someone else.”
The jury returned a verdict of $27.8 million, reduced to $24.8 million because contract and injury damages overlapped. Tholen was awarded $15 million for past and future damages and $10 million in punitive damages.
To make matters worse for Tholen, Assist America used his information in a defamatory way in a marketing document. That resulted in a separate lawsuit, which was included in a confidential global settlement after the verdict.
Arenz told the jury that Cliff Sukhu, who treated Tholen, lied about being a licensed physician. Another Assist America physician witness testified that he was unsure about the treatment regime in Mexico.
Arenz also compared Assist America’s conduct with its marketing materials, designed to help people feel safe when they traveled. “Assist America dropped the ball. … Not only were they not perfect, they weren’t reasonable.”
As the case developed, Assist America ran into a problem: It said it couldn’t find its own operations manual covering the time the injury happened. U.S. District Court Judge Donovan Frank then allowed several adverse inferences against the defendant. At the time, Magistrate Judge Steven Rau ruled, “The adverse inferences were that the operations manuals provided insufficient information to properly decide whether to evacuate an Assist America member or to decide whether a member was receiving appropriate care.”
The inferences also are that the manual was not sufficiently disseminated to the employees to assist them in decisions about medical care and evacuation. The final inference was that Assist America has now altered its operations manual as a result of Tholen’s incident.
And then there were the punitive damages. Arenz’s closing argument included physical displays demonstrating that Assist America made $91 million in revenue from 2010 to 2020 and that Chairman George Howard took home $26 million during that time period.
