1. science
2. medicine
3. surgery

SUMMARIES
WITH TRIAL
ANALYSIS
Volume 29, Issue 10
September 2011
$15,000,000 AWARD – Negligent Supervision – Teen on community service trip to central Mexico falls down
open silver mine shaft – Wrongful death at age 16 – Survival action . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
$10,000,000 RECOVERY – Municipal Liability – Defendant driver of Port Authority pick-up truck fails to
stop at red light, striking plaintiff driver after exiting Ben Franklin Bridge – Collision captured on bridge’s video system
– Severe right lower leg fractures – Infection – Gangrene – Below-the-knee amputation despite 12 surgeries . . . . . . 3
$5,150,000 VERDICT – Bus Negligence – Bus strikes plaintiff with right-of-way – Ankle fracture with
multiple surgeries – Traumatic brain injury – Total disability from employment claimed – Damages/causation only. . . 4
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The Pennsylvania cases
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$3,493,569 VERDICT – Unsafe Workplace – Negligent start of tractor- trailer in gear while mechanic is
underneath truck – Tractor moves forward and falls from jacks – Wrongful death of 26-year-old father of two . . . . . . 5
$1,300,000 RECOVERY – Motor Vehicle Negligence – Rear End Collision – Low-impact collision results in
career-ending injury to police officer – Ulnar nerve neuropathy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
$1,000,000 RECOVERY – Premises Liability – Falling Object – Tree falls and strikes plaintiff’s truck –
Herniated cervical disc – Cervical surgery performed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
$525,269 VERDICT AGAINST HOSPITAL ONLY – Medical Malpractice – Nursing – Retained
sponge following Caesarean section – Abdominal abscess – Portion of small intestine removed . . . . . . . . . . . . . 8
DEFENDANT’S VERDICT – Construction Negligence – Negligent road construction with alleged dangerous
pavement drop-off – Failure to warn – Single vehicle motorcycle collision – Wrongful death . . . . . . . . . . . . . . . 9
VERDICTS BY
CATEGORY
Professional Malpractice (9)
Anesthesiology . . . . . . .
Chiropractic . . . . . . . .
Nursing Home Negligence .
Orthopedics . . . . . . . .
Plastic Surgery . . . . . . .
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Product Liability (1)
Manufacturing Defect . . . . . . 16
Bus Negligence (1) . . . . . . . . . . 16
Motor Vehicle Negligence (12)
Auto/Bicycle Collision . . . . . . 17
Auto/Motorcycle Collision . . . . 17
Auto/Pedestrian Collision . . . . 18
Copyright 2011 Jury Verdict Review Publications Inc.
Auto/Truck Collision .
Intersection Collision .
Left Turn Collision . .
Rear End Collision . .
Reverse Collision . . .
Sideswipe Collision. .
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Police Liability (1) . . . . . . . . . . . 22
Premises Liability (3)
Hazardous Premises . . . . . . . 23
Negligent Maintenance . . . . . 24
State Liability (1) . . . . . . . . . . . 24
Supplemental Verdict Digest . . . . 25
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Summaries with Trial Analysis
$15,000,000 AWARD – NEGLIGENT SUPERVISION – TEEN ON COMMUNITY SERVICE
TRIP TO CENTRAL MEXICO FALLS DOWN OPEN SILVER MINE SHAFT – WRONGFUL
DEATH AT AGE 16 – SURVIVAL ACTION.
Philadelphia County, PA
This case involved the death of a 16-year-old boy
after he fell down a 500 foot deep open silver
mine shaft while on a trip to Central Mexico in
2007. The defendants in the case included the
Wayne, Pennsylvania, organization with which the
decedent had signed up for the Mexican
humanitarian trip (Travel for Teens) and the
company which made the actual arrangements
(Casa De Los Angeles). The plaintiff alleged that
the defendants failed to provide adequate
supervision for the teen and to ensure that he was
not exposed to an unsafe or hazardous
environment. Casa De Los Angeles, a non-profit
organization located in Illinois, was dismissed
from the case on jurisdictional grounds prior to
trial. The remaining defendant, Travel for Teens,
argued that it had subcontracted with Casa De
Los Angeles and relied on its experience and
expertise to safeguard the teenagers on the trip.
The young decedent, a resident of West Chester,
Pennsylvania, signed up for one of the defendant’s
community service programs to assist and mentor underprivileged children in Mexico. The trip began on
July 15 of 2007. On July 20, 2007, the group of approximately 30 American teenagers and a number of
Mexican children went on a trip to the silver mining ruins of Cinco Senores, Mineral de Pozos in
Guanajuato, Mexico.
The decedent was reportedly playing tag with some
of the Mexican children when he jumped onto the
stone edge of an abandoned mine shaft. Witnesses
testified that that the boy attempted to jump across
the mouth of the shaft and grabbed the branch of
an overhanging tree. The youngster ultimately released the branch and fell to his death according to
testimony offered. The shaft, which was approximately 500 feet deep, was not posted with warning
signs, guarded with railings or labeled as a dangerous mine shaft, according to evidence offered.
The plaintiff’s forensic pathologist testified that the
young decedent would have experienced a period
of conscious terror of some ten to 15 seconds as he
plunged down the dark shaft prior to his death from
blunt force trauma when he struck the bottom. The
plaintiff’s economist estimated the decedent’s loss of
future earnings to be between $1.96 million and
$7.77 million.
The plaintiff maintained that the defendant planned,
organized, and supervised the visit to Mexico and
was responsible for the dangerous condition which ultimately caused the decedent’s death. The defendant argued that it had entered into an oral contract
and paid the (dismissed) co-defendant $10,000 to
arrange for the teen’s activities in Mexico. The defense argued that the co-defendant represented itself as having experience and expertise in local
conditions and sites in Mexico and frequently arranged for American teens to visit that country. The
defense contended that the co-defendant had
complete “care, custody and control” of the Pennsylvania teenagers on the trip and that it had no duty to
oversee the judgments made by that separate entity.
The case was tried as a bench trial with an award of
$15 million to the plaintiff. The award included $2 million for the wrongful death action and $13 million for
the survival claim.
REFERENCE
Plaintiff’s economic expert: David L. Hopkins from
West Conshohocken, PA. Plaintiff’s forensic
pathology expert: Wayne K. Ross from Bethlehem,
PA.
Patterson vs. Travel for Teens, LLC. Case no. 09-06002316; Judge Joseph I. Papalini, 06-29-11.
Attorney for plaintiff: Dominic C. Guerrini of Kline &
Specter in Philadelphia, PA. Attorney for defendant:
Joseph M. Fioravanti in Media, PA.
COMMENTARY
One of the main defenses offered during the trial of this wrongful
death action, was that the trial defendant was not responsible for
the day-to-day activities of the American teenagers on their trip to
assist Mexican youth. The release of the second defendant on jurisdictional grounds left an empty chair at which the defendant
pointed as bearing sole responsibility for the young decedent’s
tragic death when he fell into an abandoned mine shaft. Thus,
which of the organizations actually had “care, custody and control”
of the youngsters during the trip became one of the main legal
issues in the case.
It was undisputed that the trial defendant had never visited nor
seen the of Cinco Senores ruins which had been a booming silver
mining town in the 1900s, which were all but abandoned at the
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Volume 29, Issue 10, September 2011
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SUMMARIES WITH TRIAL ANALYSIS
Founder
Ira J. Zarin, Esq.
Editor in Chief
Jed M. Zarin
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time of the accident. It was this point, which plaintiff’s counsel stressed; arguing that the
defendant had approved the visit and had a duty to investigate the safety of the location
and its appropriateness for youngsters.
The decedent’s economic damages were bolstered by his solid background of academic
achievement, as well as two parents who had both earned college degrees. The bulk of the
damages ($13 million) for the survival claim were grounded on expert testimony detailing
the horror experienced by the teenager in the moments he plummeted down the mine shaft
just prior to his death.
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$10,000,000 RECOVERY – MUNICIPAL LIABILITY –
DEFENDANT DRIVER OF PORT AUTHORITY PICK-UP
TRUCK FAILS TO STOP AT RED LIGHT, STRIKING
PLAINTIFF DRIVER AFTER EXITING BEN FRANKLIN
BRIDGE – COLLISION CAPTURED ON BRIDGE’S VIDEO
SYSTEM – SEVERE RIGHT LOWER LEG FRACTURES –
INFECTION – GANGRENE – BELOW-THE-KNEE
AMPUTATION DESPITE 12 SURGERIES.
Philadelphia County, PA
The plaintiff pick-up truck driver, 51 at the time of the collision and
55 at the time of the recovery, contended that the defendant pick-up
truck driver, in the course of his employment with PATCO,
negligently failed to stop at a red light, colliding with the side of the
plaintiff’s vehicle. The plaintiff maintained that he suffered severe
lower right leg fractures consisting of comminuted tibia and fibula
fractures, as well as a pilon fracture to the ankle. The plaintiff
underwent a total of some 12 surgical interventions in a three to
four-year period until requiring a below-the-knee amputation.
The collision occurred approximately two blocks after the plaintiff crossed
the Ben Franklin Bridge while en route to work and one of the bridge’s
cameras, focused on the bridge apron, captured the accident. The
plaintiff would have argued that although somewhat “grainy,” the video,
in color, showed that the plaintiff entered the intersection with a green
light and was broadsided by the defendant.
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The plaintiff maintained that he suffered particularly severe compound,
comminuted fractures that involved tibia and fibula, as well as a pilon
fracture to the ankle on the same side. The plaintiff’s orthopedist would
have related that several weeks after emergency surgery, the day of the
collision, the plaintiff underwent subsequent surgery in which a plate and
screws were inserted. The plaintiff’s orthopedist would have testified that
because of the development of infection, the plaintiff then needed two
debridements. The physician would have related that the plaintiff also required two surgeries in which external fixation devices were placed.
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The plaintiff contended that he also developed a vascular compromise
and that two vascular surgeries were not successful, resulting in toes becoming gangrenous. The plaintiff underwent the below-the-knee amputation after 12 surgeries had been performed over a three and a-half to
four-year period.
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The plaintiff related that he never considered himself “book smart,” had
not graduated high school, but was talented in physical work. The plaintiff had been a cement mason for some years and contended that because of the injuries, he will permanently be unable to work. The plaintiff
contended that he took great pride in his ability to work, and that the loss
from the injuries was all-the-greater because of this aspect. The plaintiff
would have introduced evidence of approximately $3,500,000 in economic losses, including lost income and past and future medical bills.
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SUMMARIES WITH TRIAL ANALYSIS
The pre-trial offer of $5,250,000 was rejected. The defendant was covered by a $25,000,000 policy. During the plaintiff’s opening statement, a juror fainted.
The case settled a short time later for $10,000,000.
REFERENCE
Plaintiff’s economist expert: Robert Wolf, PhD from
Cherry Hill, NJ. Plaintiff’s life care planning expert:
Mona Yudkoff. Plaintiff’s orthopedic surgeon expert:
Susan Harding, MD from Philadelphia, AK. Plaintiff’s
pain management physician expert: Guy W Fried,
MD from Philadelphia, NJ.
Pettet vs. PATCO, et al. Case no. 04-09-491, 08-0811.
Attorneys for plaintiff: Joel Wayne Garber of Garber
Law in Voorhees, NJ, and Robert J. Mongeluzzi and
Andrew Duffy of Saltz Mongeluzzi Barrett &
Bendesky, PC in Philadelphia, PA.
COMMENTARY
The collision occurred two blocks from the Ben Franklin Bridge and
the surveillance system captured the actual accident. In this regard,
the plaintiff would have stressed that although the color video was
somewhat grainy and shot in the distance, the jury could clearly
observe that the plaintiff entered the intersection with the green
light when he was struck in the side of his pick-up truck by the
defendant.
The plaintiff emphasized the manner in which he ultimately required the below-the-knee amputation despite a valiant effort of
undergoing some 12 surgical procedures in attempts to save the
leg. Additionally, the plaintiff’s opening statements, during which a
juror fainted, included detailed descriptions of the manner in which
the plaintiff required the debridement of necrotic tissue. In this regard, it is felt that if the defendant had obtained a mistrial, a second jury would be expected to react very strongly as well to such
descriptions. Finally, the plaintiff stressed the manner in which he
was dependent upon his physical abilities to earn a living because
he was not “book smart, and had not graduated high school. In
this regard, the plaintiff emphasized that in addition to the severe
nature of the injuries themselves, the disability had deprived the
plaintiff of a major source of pride and feelings of self worth.
$5,150,000 VERDICT – BUS NEGLIGENCE – BUS STRIKES PLAINTIFF WITH RIGHT-OFWAY – ANKLE FRACTURE WITH MULTIPLE SURGERIES – TRAUMATIC BRAIN INJURY –
TOTAL DISABILITY FROM EMPLOYMENT CLAIMED – DAMAGES/CAUSATION ONLY.
Philadelphia County, PA
The plaintiff was a 45-year-old factory worker in
2008 when her vehicle collided with a bus
operated by the defendant First Transit in order to
provide paratransit services under a SEPTA
contract. The driver of the bus was also named as
an individual defendant in the case. The
defendants stipulated to negligence in causing the
collision, but disputed the nature and extent of the
injuries sustained by the plaintiff.
The plaintiff was driving her Chevrolet Geo Metro with
the right-of-way (no traffic control device in her direction) in Montgomery County in November of 2008.
The defendant driver had a stop sign directing his
course of travel. The defendant bus driver entered the
intersection and struck the plaintiff’s vehicle, causing
the airbag to deploy. The plaintiff testified that her
head struck the rear view mirror on impact.
The plaintiff was diagnosed with an open ankle fracture as a result of the collision. She underwent four ankle surgeries including open reduction, internal
fixation and subsequent removal of the orthopedic
hardware. Her orthopedic surgeon (as well as the defendants’ orthopedic experts) opined that an additional ankle fusion or ankle replacement is indicated
for the plaintiff in the future due to the development
of arthritis at the fracture site.
The plaintiff claimed that the collision also caused a
traumatic brain injury and that she continues to exhibit short-term memory loss and related cognitive
deficits. The plaintiff complained of neck and back
Volume 29, Issue 10, September 2011
pain and tennis elbow related to the continued use
of crutches following her ankle fracture and multiple
surgeries. The plaintiff testified that she suffers constant pain and swelling of the injured ankle which limits her physical activities. The plaintiff walked with the
assistance of a cane at the time of trial.
The plaintiff was employed on a factory assembly line
at the time of the accident. She claimed that she is
now unable to stand on her feet for any significant
period of time. The plaintiff testified that she attempted to return to her previous job, but was unable
to continue working after performance of the fourth
surgery to her ankle. The plaintiff’s vocational expert
opined that the plaintiff is totally disabled and cannot
return to any type of employment as a result of her
accident-related injuries.
The plaintiff testified that her injuries also preclude her
from caring for her toddler son and elderly mother as
she did before the date of the accident. The plaintiff’s life care expert testified that the plaintiff’s future
medical care, treatment and other needs related to
her injuries will cost approximately $2,300,000.
The defendant’s brain injury expert opined, based on
his review of the plaintiff’s medical records, that there
was no objective evidence to support the plaintiff’s
claim of a traumatic brain injury. The defendant’s orthopedic surgeon opined that the plaintiff’s neck and
back complaints and tennis elbow were unrelated to
the subject collision. The defense also argued that
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SUMMARIES WITH TRIAL ANALYSIS
the plaintiff’s claim that she will undergo future ankle
surgery was speculative, since she had not yet
undergone the recommended procedure.
The defendant’s vocational expert testified that the
plaintiff had previously worked as a manicurist and a
receptionist and that she could return to work in either
of those fields, if she so desired. The defendant’s life
care expert estimated the cost of the plaintiff’s future
care to be approximately $100,000.
The jury awarded the plaintiff $5,000,000 and
awarded her husband $150,000 for his loss of consortium claim, for a total verdict of $5,150,000.
REFERENCE
Plaintiff’s economic expert: Andrew Verzilli from
Lansdale, PA. Plaintiff’s life care expert: Terri
Patterson from Philadelphia, PA. Plaintiff’s orthopedic
surgery expert: Wen Chao from Philadelphia, PA.
Plaintiff’s rehabilitation expert: Guy Fried from
Philadelphia, PA. Plaintiff’s vocational expert:
Rosalyn Pierce from Philadelphia, PA. Defendant’s
brain injury expert: Thomas K. Watanabe from Elkins
Park, PA. Defendant’s life care expert: Suzanne
Salmon from Philadelphia, PA. Defendant’s
orthopedic surgery expert: Paul Horenstein from Bala
Cynwyd, PA. Defendant’s vocational rehabilitation
expert: Philip Spergel from Jenkintown, PA.
Waldon vs. First Transit, et al. Case no. 09-08-01187;
Judge George W. Overton, 06-20-11.
Attorneys for plaintiff: Joe H. Tucker Jr. and Yvonne
B. Montgomery of The Tucker Law Group in
Philadelphia, PA. Attorneys for defendant: Maureen
5
Daley and Franklin Love of Rawle & Henderson in
Philadelphia, PA. Attorneys for defendant: Paul Troy
and Justin Bayer of Kane, Pugh, Knoell, Troy &
Kramer in Philadelphia, PA.
COMMENTARY
The defendant’s stipulation of negligence precluded admission of
evidence regarding the defendant bus driver’s driving history,
which included several traffic citations and a license suspension.
Plaintiff’s counsel had sought to amend the complaint to include
punitive damages based on the alleged hiring of an inappropriate
driver. However, the motion to amend was denied by the court.
Thus, with no liability issues, much of the trial focus centered on
the plaintiff’s claim of total disability from employment and her
significant claim for loss of future earnings and the cost of her
future care.
There was a considerable difference between the $2.3 million in
life care costs asserted by the plaintiff’s expert and the $100,000
proffered by the defendant. Medical experts on both sides agreed
that the plaintiff will need future ankle surgery. The plaintiff’s life
care plan included costs for future medical care and nursing services, home modifications and transport services.
The defense conceded that the plaintiff sustained an ankle fracture
and facial lacerations, but disputed the remainder of her claimed
damages, including the claim of a traumatic brain injury. The defense especially took exception to the plaintiff’s claim of total disability from employment and maintained that she was capable of
returning to the workforce in several sedentary fields.
However, although the 12-member jury did not break down the
damage award, it apparently accepted the plaintiff’s position and
deliberated for approximately two hours before rendering a significant $5.15 million damage award. An appeal is anticipated.
$3,493,569 VERDICT – UNSAFE WORKPLACE – NEGLIGENT START OF TRACTORTRAILER IN GEAR WHILE MECHANIC IS UNDERNEATH TRUCK – TRACTOR MOVES
FORWARD AND FALLS FROM JACKS – WRONGFUL DEATH OF 26-YEAR-OLD FATHER
OF TWO.
U.S. District Court, Eastern District of PA
The decedent was a 26-year-old truck mechanic
who was repairing a tractor-trailer, owned by the
defendant trucking company and driven by the
defendant truck driver, when the tractor lurched
forward and fell from its jacks. A bolt attached to
the undercarriage of the tractor was driven into
the decedent’s head and caused his death. The
plaintiff alleged that the defendant truck driver
was negligent in starting the truck while it was in
gear, causing the movement which resulted in the
decedent’s death. The defendants argued that the
decedent’s death resulted from his own
carelessness and failure to use standard safety
procedures.
The defendant’s tractor-trailer was pulled over by a
Pennsylvania State police officer on a Pennsylvania
Highway in August of 2008. The police officer ordered
a safety inspection of the rig which resulted in a requirement that the truck’s brakes be repaired before
continuing its trip. The tractor was disconnected from
the trailer and moved to a nearby truck stop in
Breezewood, Pennsylvania.
The decedent, a mobile mechanic, arrived at the
truck stop to perform the ordered brake repairs. Testimony established that the decedent instructed the
defendant truck driver to pump the breaks and the
transmission was shifted into gear at that time. The
truck was then jacked up and the decedent instructed the defendant truck driver to start the
engine.
The decedent was lying on his back under the tractor
when the plaintiff claimed that the defendant started
the engine without taking the transmission out of
gear, causing the truck to lurch forward. The plaintiff’s
trucking expert testified that any commercial truck
driver is aware that starting a truck in gear will cause it
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6
SUMMARIES WITH TRIAL ANALYSIS
to lurch forward. The plaintiff’s expert opined that the
defendant truck driver’s training would have included
a caution against such an action.
A bolt attached to the undercarriage of the tractor
impacted the plaintiff above the right eye and drove
the back of his head into the pavement. The decedent was pronounced dead at the scene. He was
survived by his wife and two minor sons, ages three
and eight at the time of his death.
The defendant truck driver contended that the decedent instructed him to get in the truck and start the
engine and he had no idea that the decedent was
going underneath the truck. The defense maintained
that the decedent was in control of the site and was
responsible for his own safety.
The defense argued that the decedent was an experienced truck mechanic who was familiar with safety
precautions necessary to safely make truck repairs.
The decedent used improper jacks, failed to chock
the wheels of the truck to prevent unwanted movement and was negligent in lying under the truck after
he instructed the driver to start the engine, according
to defense arguments.
The jury found the defendants 100% negligent and
awarded the plaintiff $3,493,569 in damages. The
defendant’s post-trial motions are pending.
REFERENCE
Plaintiff’s economic expert: David Hopkins from West
Conshohocken, PA. Plaintiff’s trucking expert: Brooks
Rugemer from Lancaster, PA.
Conlon vs. Trans National Trucking Company. Case
no. 2:09-CV-05362-CSMW, 06-30-11.
Attorney for plaintiff: David J. Colleran of The
Colleran Firm in Philadelphia, PA. Attorney for
defendant: Marc F. Ullom of Rawle & Henderson in
Philadelphia, PA.
COMMENTARY
This wrongful death action was initially filed in Philadelphia Common Pleas Court, a traditionally liberal plaintiff’s venue, but was
moved (by defense motion) to federal court based on diversity
jurisdiction.
The jury was aware that the roadside brake repairs to the defendant’s tractor-trailer were ordered following a police safety inspection. However, the defense was successful in precluding evidence of
the numerous other safety violations which were detected on the
truck during the same inspection.
The jury assessed no comparative negligence against the decedent
himself. This is despite defense arguments that the decedent, an
experienced mechanic, should not have laid under the tractor without any chocks and flimsily jacks, after instructing the driver to
start the engine. The driver maintained that he had no knowledge
that the decedent was going under the truck after instructing him
to start the engine. Plaintiff’s counsel countered the comparative
negligence argument by producing evidence, including authoritative trucking industry literature, that every commercial truck driver
knows or should know to make sure that a truck is out of gear
before starting it.
The court removed the “conscious pain and suffering” portion of
the jury instructions, since it was agreed that the decedent’s death
was instantaneous. The surviving widow’s claim was quite interesting in that she had, admittedly, filed for divorce from the decedent
prior to the accident. The wife maintained that she and her husband were in the process of reconciling at the time of his sudden
death and that the divorce would not have gone forward.
The defendant trucking company had a $1 million liability policy in
place at the time of the accident, which the plaintiff reportedly offered to accept in full settlement of the case. Thus, the verdict of
nearly $3.5 million sets up a potential bad faith insurance claim
against the defendant’s carrier.
$1,300,000 RECOVERY – MOTOR VEHICLE NEGLIGENCE – REAR END COLLISION –
LOW-IMPACT COLLISION RESULTS IN CAREER-ENDING INJURY TO POLICE OFFICER –
ULNAR NERVE NEUROPATHY.
Philadelphia County, PA
In this matter, a Philadelphia police officer sued
after a minor collision left him permanently
disabled with partial loss of sight and nerve
damage, rendering him unable to continue
serving on the force.
On March 25, 2005, the plaintiff officer, 42, was on
routine patrol in Center City, Pennsylvania. The plaintiff
was in an operating lane after logging a bank check
on a recently robbed bank near JFK Boulevard. The
plaintiff was struck in the rear while stopped behind
other traffic at a red light by a vehicle driven by Jane
G. The second vehicle was owned by her father Stanford G.’s company, China Outlet and Gourmet Ga-
Volume 29, Issue 10, September 2011
rage. The collision was low speed and low impact,
with minor damage to both cars. The defendant was
not cited with a motor vehicle violation.
The plaintiff was checked out at Hahnemann University Hospital where he was found to have soft tissue injuries to his head, neck back and shoulders. At the
time, the plaintiff did not believe his injuries were
more severe. However, a few weeks later the officer
began experiencing blindness in his right eye, as well
as a loss of coordination in his right arm and hand.
The plaintiff’s ulnar nerve was found to be entrapped,
resulting in neuropathy (nerve damage). Surgery to
reduce the entrapment proved unsuccessful.
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SUMMARIES WITH TRIAL ANALYSIS
The plaintiff underwent a nerve velocity test on his
right arm, which showed his diminished capacity. His
sight eventually returned, not completely, but enough
to perform his duties. However, as a result of this
nerve damage, the plaintiff officer was unable to requalify with his service weapon and was discharged
from the police force.
The plaintiff filed suit against the driver, her father’s
company, and her father individually in the Philadelphia County Court of Common Pleas. On the motor
vehicle negligence cause of action the plaintiff
sought $3 million in damages. Recovery was sought
for pain and suffering, $157,000 in past medical
damages, as well as $2.3 million for lost future
wages, benefits, and rank and retirement plans lost
due to his discharge from the force.
The matter was settled on July 19, 2011 after mediation and continuance for $1.3 million.
7
REFERENCE
Kenneth McMillan vs. Jane Golden, Stanford Golden,
China Outlet and Gourmet Garage. Case no. J2007000525; Judge Howland Abramson, 07-19-11.
Attorney for plaintiff: Louis E. Slawe of Louis E. Slawe
Attorneys at Law in Philadelphia, PA. Attorney for
defendant: Angelo Scaricamazza of Naulty,
Scaricamazza & McDevitt, LLC in Philadelphia, PA.
COMMENTARY
As the plaintiff officer was injured on the job, medical payments
were dictated by Pennsylvania Law regarding workman’s compensation. Financial assistance for the payment of medical bills was
provided by Philadelphia CompServices, who provide coverage for
on-the-job injuries. The plaintiff’s $157,000 in medical expenses
was repaid to the fund from the settlement.
The Velocity Test given to the plaintiff officer involved the sending
of an electrical signal down from the shoulder to the hand. This
electromyography (EMG) procedure objectively validated of the
amount to which the plaintiff’s physical capacity was diminished.
$1,000,000 RECOVERY – PREMISES LIABILITY – FALLING OBJECT – TREE FALLS AND
STRIKES PLAINTIFF’S TRUCK – HERNIATED CERVICAL DISC – CERVICAL SURGERY
PERFORMED.
Delaware County, PA
The plaintiff contended that the defendant
property owner was negligent in failing to
maintain the trees on its Media, Pennsylvania,
property. As a result, the plaintiff alleged that a
tree fell, knocking over two other trees and
striking his vehicle. The defendant argued that it
was not negligent and that the tree’s condition
was not noticeable upon visual inspection.
The plaintiff was employed as a construction worker
for a utility company. In 2008, while the plaintiff was in
the course and scope of his employment, his truck
was on a public highway abutting the defendant’s
property. A tree on the defendant’s premises fell,
knocking over two other trees. Evidence showed that
the trees struck the plaintiff’s vehicle, just behind the
cab.
the plaintiff’s recovery was complicated by a severe
infection. The plaintiff contended that he has been
unable to retain his employment with the utility company due to his injuries. A worker’s compensation lien
of $137,000 was asserted. The plaintiff alleged a total
wage loss of $1.1 to $1.3 million.
The defendant contended that it conducted reasonable inspections and removal of trees on its property.
The defendant’s arborist opined that the tree in question appeared healthy in the visible upper branches
and that the rotting along the base was obscured
from view. The defense also disputed the extent and
nature of the damages claimed by the plaintiff and
contended that his shoulder condition was preexisting
and not causally related to the incident.
The case was settled prior to trial for $1,000,000.
The plaintiff alleged that the defendant failed to inspect and maintain the trees in a safe condition and
that they were rotted and dangerous. The defendant’s arborist opined that the tree in question, an
American Beech, was visibility decayed and that its
condition would have been readily noticeable to
anyone who inspected it. The plaintiff stressed that
the trunk of the tree was discovered to be almost
completely hollow after it fell, indicating an
advanced state of decay.
REFERENCE
The plaintiff was 41 years old at the time in question.
He was diagnosed with a herniated cervical disc and
shoulder injury which his physicians causally related to
the tree incident. He underwent both cervical surgery
and shoulder surgery. Following the cervical surgery,
The plaintiff’s case on liability hinged on his ability to establish
that the tree which fell was visibly rotted, so as to put the defendant on notice of the danger it presented. This was disputed by the
defendant and both sides retained experts who offered opposing
Plaintiff’s arbor expert: Andrew Graham from
Doylestown, PA.
Host vs. Defendant. Case no. 10-5278; Judge Charles
B. Burr, 06-17-11.
Attorney for plaintiff: Wayne Schaible of McCann,
Schaible & Wall in Philadelphia, PA.
COMMENTARY
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SUMMARIES WITH TRIAL ANALYSIS
opinions on the issue. The plaintiff’s case may have been assisted
by evidence that the trunk of the American Beech involved was
found to be almost completely hollow after the accident.
There was also an issue as to the defendant’s duty of inspection as
determined by whether the property was classified as undeveloped.
Although there were no residences on the property, the plaintiff
maintained that its location along a busy road in Media created a
duty on the part of the defendant to inspect its trees for safety.
In addition, there was a causation defense presented, mainly surrounding the plaintiff’s claimed shoulder injury. The plaintiff had
asserted a claim for approximately $3.5 million in economic damages. However, after the defendant disclosed that it only had $1
million in liability insurance coverage, the case settled for that
amount.
$525,269 VERDICT AGAINST HOSPITAL ONLY – MEDICAL MALPRACTICE – NURSING –
RETAINED SPONGE FOLLOWING CAESAREAN SECTION – ABDOMINAL ABSCESS –
PORTION OF SMALL INTESTINE REMOVED.
Bucks County, PA
This case involved a sponge which was retained in
the plaintiff’s abdomen after performance of a
caesarean section. The plaintiff alleged that the
two defendant nurses, employed by the defendant
hospital, were negligent in failing to accurately
count the surgical sponges during the operation.
The defendant hospital and nurses argued that
the co-defendant obstetrician negligently failed to
diagnose the retained sponge and caused a delay
of some 80 days before the sponge was visualized
by CT-scan and removed. The defendant
obstetrician maintained that he reasonably relied
on the correct sponge count reported by the
nurses and that he met the standard of care in the
plaintiff’s post-operative treatment.
The plaintiff underwent caesarean delivery of her
daughter on March 30, 2004, at the defendant hospital. The two defendant nurses recorded that 25 surgical sponges were opened and that all 25 sponges
were accounted for at the end of the surgery. However, the plaintiff alleged that she continued to complain of lower quadrant pain to the defendant
obstetrician following the delivery. On June 18, 2004,
the plaintiff’s primary care physician recommended
hospitalization, and a CT-scan of the abdomen
showed the existence of the retained sponge.
The defendant obstetrician argued that he relied on
the correct sponge count given to him by the nurses.
It was agreed by all medical experts that, if the defendant had been told that there was a sponge missing, then protocol would have been followed to find
the sponge, including inter-operative X-rays; and the
sponge would have been removed.
Regarding the plaintiff’s post-operative care, the defendant obstetrician maintained that during her April
8, 2004, staple removal there was no notation of pain
(contrary to the plaintiff’s testimony that she reported
abdominal pain). The defendant doctor sent the
plaintiff to the hospital on April 16, 2004, where she
was diagnosed with bronchitis and treated. Evidence
showed that an abdominal examination by the
emergency room doctor at that time was found to
be normal and no complaints of abdominal pain
were noted.
The defendant obstetrician testified that, if the plaintiff
had called on Memorial Day with complaints of abdominal pain as she alleged, he likely would have
sent her to the hospital. On the June 10, 2004, postoperative visit, the defendant first noted intermittent
stomach pain for three weeks with an ordinary physical examination. The defense argued that threeweek intermittent pain does not warrant X-rays.
By the time of diagnosis, some 80 days post-surgery,
the plaintiff’s abdomen had become abscessed and
the sponge had adhered to the bowel. The plaintiff
required colorectal surgery involving the removal of
two sections of her small intestine. The plaintiff required a subsequent hospitalization for a bowel obstruction and complained of continuing symptoms.
She claimed approximately $42,000 in past medical
expenses.
The defense contended that the plaintiff’s pain worsened considerably between June 10th and June
17th, 2004, and she began to vomit. The plaintiff
called her primary care physician who advised her to
go to the hospital. The defense argued that the
emergency room records for June 18, 2004, support
the defendant’s documentation that the plaintiff’s abdominal pain was waxing and waning intermittently
for four weeks.
The defendant nurses testified that they counted the
sponges three times before the end of the surgery
and found the count to be correct. Evidence showed
that the surgical sponges used contained a radioopaque portion that is visible on X-ray. The co-defendant hospital and nurses alleged that the defendant
obstetrician deviated from the required standard of
care in failing to detect the retained sponge sooner.
The jury found the defendant nurses (for which the defendant hospital is vicariously liable) 100% negligent.
The jury awarded the plaintiff $525,269 in damages
against the hospital only.
Volume 29, Issue 10, September 2011
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REFERENCE
Plaintiff’s surgical expert: David Befeler from
Westfield, NJ. Defendant’s gynecological expert:
David A. Iddenden from Philadelphia, PA.
Defendant’s obstetrics expert: Stuart Dershaw from
Willow Grove, PA.
Webster vs. Lower Bucks Hospital, et al. Case no.
0503038-12-2; Judge Clyde W. Waite, 07-19-11.
Attorney for plaintiff: Jack Cohen of Levy, Baldante,
Finney, Rubenstein, Cohen & Chizmar in
Philadelphia, PA. Attorney for defendant hospital and
nurses: J. Kurt Straub of Obermayer, Rebmann,
Maxwell & Hippel in Philadelphia, PA. Attorney for
defendant obstetrician: Mary Grady Walsh of Kevin
H. Wright & Associates in Lansdale, PA.
COMMENTARY
Liability is typically clear cut in medical malpractice cases involving
a sponge retained in the body cavity after surgery. However, as frequently occurs, this case involved an issue as to the apportionment
9
of liability as between the doctor and the hospital nurses. Although
the nurses were admittedly responsible for providing an accurate
sponge count under hospital policy, it was asserted that the obstetrician was the “Captain of the Ship” in charge of the entire
operation.
The presentation of the two defendants was not united and the
hospital attempted to shift at least some of the responsibility onto
the co-defendant obstetrician for failing to detect the foreign object
sooner, which would have avoided the severe abscess and colorectal
surgery performed. Interestingly, plaintiff’s counsel did not put on
a case for any post-operative failure to diagnose the retained
sponge against the defendant obstetrician. In fact, the plaintiff’s
surgical expert testified specifically that he did not think there was
negligence in failing to follow the plaintiff post-operatively.
The obstetrician’s defense centered on the fact that the two veteran
nurses were trained by the hospital to follow hospital policy, which
was to count the sponges three times. Clearly, since the sponge was
retained, there was an error in their count. The jury ultimately
placed 100% fault upon the hospital nurses. The plaintiff has
moved for an additional $121,000 in delay damages.
DEFENDANT’S VERDICT – CONSTRUCTION NEGLIGENCE – NEGLIGENT ROAD
CONSTRUCTION WITH ALLEGED DANGEROUS PAVEMENT DROP-OFF – FAILURE TO
WARN – SINGLE VEHICLE MOTORCYCLE COLLISION – WRONGFUL DEATH.
Dauphin County, PA
This action, brought against the defendant road
construction company, involved the death of the
decedent after his motorcycle crashed on an
Interstate 80 exit ramp in Clarion County,
Pennsylvania. The plaintiff alleged that the
defendant created a dangerous road condition in
the form of rough road and several drop-offs, or
changes in elevation, of which the defendant
failed to warn. The defendant maintained that the
fatal accident resulted from the decedent’s state
of intoxication and negligent operation of his
motorcycle. The Pennsylvania Department of
Transportation, which had contracted the
defendant for the road work, was also named as
a defendant, but was dismissed from the case
prior to trial.
On June 8, 2007, the decedent was riding his motorcycle in a heavy rain at approximately sunset. The
plaintiff claimed that the decedent’s motorcycle encountered a drop-off of 1 to 1.75 inches on the 62
exit ramp of Route 80 and went into a skid. The decedent righted the motorcycle, but encountered a second drop-off of four-to-five inches along the side of
the ramp, according to the plaintiff’s claims. Evidence showed that the decedent fell again and skidded another 51 feet before coming to rest.
The decedent was pronounced dead at the hospital
a short time later. The decedent was approximately
50 years old and was employed in the construction
field at the time of his death. He was survived by son
who was a minor at the time.
The plaintiff alleged that the drop-offs and milled,
rough condition of the highway constituted a dangerous condition for which the defendant was responsible. The plaintiff claimed that the defendant should
have left the road surface in a safe condition and
posted appropriate warning signs or traffic control
devices.
The defendant presented evidence that the decedent’s blood alcohol level was tested to be.28
and.27 when he arrived at the hospital. A broken bottle of vodka was also found on decedent. The defense contended that the decedent was intoxicated
and his intoxication was the cause of his death. The
defendant’s accident reconstructionist testified that
the milled road and drop-off did not cause
defendant’s death.
The plaintiff’s toxicologist countered that the decedent’s blood alcohol testing may have been erroneous for a number of reasons. The plaintiff also called
seven witnesses who testified that they talked to the
decedent by telephone at various times during his
197-mile motorcycle trip and that he sounded lucid
and sober. The plaintiff argued that the decedent’s
alleged intoxication could not be shown, except for
the blood tests.
The jury found that the defendant was negligent and
that its negligence was a factual cause of the decedent’s death. However, the jury also determined that
the decedent was reckless. A finding which the court
ruled precluded the plaintiff’s recovery. The plaintiff’s
post-trial motions are currently pending.
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REFERENCE
Plaintiff’s accident reconstruction expert: Russell
Kolmus, III from Malvern, PA. Plaintiff’s toxicology
expert: Lawrence J. Guzzardi from York, PA.
Defendant’s accident reconstruction expert: Fawzi
Bayan from Bethesda, MD. Defendant’s highway
safety expert: Steven Schorr from Abington, PA.
Defendant’s toxicology expert: J. Ward Donovan
from Hummelstown, PA.
Jacobs vs. Glenn O. Hawbaker, Inc. Case no. 2008
CV 10864; Judge Jeannine Turgeon, 05-20-11.
Attorney for plaintiff: Richard C. Angino of Angino &
Rovner in Harrisburg, PA. Attorney for defendant:
Stephen E. Geduldig of Thomas, Thomas & Hafer in
Harrisburg, PA.
COMMENTARY
It was known going into this wrongful death trial that the decedent’s consumption of alcohol, prior to his fatal motorcycle accident, could prove problematic to his estate’s recovery. The defense
presented evidence that the decedent’s blood alcohol content was
determined independently by two separate facilities and showed
substantially similar results (.27 and.28). The defense contended
that this evidence left little question that the decedent was highly
intoxicated at the time of his death.
However, the plaintiff’s toxicologist attempted to cast doubt on the
blood alcohol testing and opined that the test results may not have
been accurate. The plaintiff relied on a number of witnesses who
testified that the decedent sounded perfectly lucid and sober during
the time period leading up to the accident. A bottle of vodka was
found on the decedent following the crash, but was broken so that
the level of its contents could not be determined.
Details of the decedent’s history of alcohol abuse were admitted
over objection from plaintiff’s counsel, as was statistics showing
that 45% of motorcycle deaths are due to drunk driving. Witnesses
were questioned to acknowledge that everyone knows he shouldn’t
drink and drive, according to plaintiff’s counsel. These points are
expected to be main issues in the plaintiff’s pending post-trial motions or a possible appeal. In addition, plaintiff’s counsel maintains
that the jury was improperly permitted to consider that being intoxicated, in and of itself, could be found to be reckless conduct
without any proof of reckless conduct.
Although the jury found the defendant negligent for the condition
in which it left the road, and found that its negligence was a factual
cause of the decedent’s death; the court determined that the finding of recklessness on the part of the decedent precluded apportionment of the negligence between the parties. Thus, the finding
of recklessness acted as a complete defense. Plaintiff’s counsel
challenges this finding and argues that case law is not certain on
this point and that the issue has never been addressed by the
Pennsylvania Supreme Court.
Verdicts by Category
PROFESSIONAL MALPRACTICE
Anesthesiology
$150,000 RECOVERY
Medical Malpractice – Anesthesiology – Failure to
properly manage the decedent’s post-operative
obstructive sleep apnea – Respiratory distress –
Wrongful death of adult male.
Bucks County, PA
The estate of the decedent alleged that the
defendant doctor, anesthesiologist and hospital
staff failed to properly treat the decedent’s sleep
apnea after back surgery, resulting in respiratory
distress which led to the death of the decedent.
The defendants all denied liability and contend
that they attended to the decedent in accordance
with the standards of care.
On May 16, 2005, the decedent consulted with the
defendant doctor for severe pain in his low back. During his consultation, the defendant took a medical
history which included that fact that the decedent
suffered from obstructive sleep apnea and used a
Volume 29, Issue 10, September 2011
continuous positive airway pressure machine known
as a CPAP machine. On August 11, 2005, the defendant doctor recommended that the decedent undergo a lumbar laminectomy and discectomy at L4L5 and L5-S1. On September 8, 2005, the decedent
underwent pre-surgical testing where it was noted
that the decedent used a CPAP machine.
On September 12, 2005, the surgery was performed.
Post-operatively, the decedent was found to be
hypotensive. He was suffering respiratory distress and
was intubated. The intubation was performed by the
defendant anesthesiologist and was a difficult
intubation. The decedent’s condition continued to
deteriorate and despite resuscitation efforts, the defendants were unable to reestablish a blood pressure
and pulse and the decedent died on September 12,
2005. The decedent’s wife was with the decedent as
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11
his condition rapidly deteriorated post-operatively
and she suffered severe post-traumatic stress from
witnessing the death of her husband.
The estate alleged that the anesthesia team failed to
perform an appropriate pre-operative assessment
and failed to properly administer post-operative care.
The estate also alleged that the defendant doctors
failed to have in place proper plans and procedure
to deal with a patient with obstructive sleep apnea
and failed to continuously treat the decedent with a
CPAP machine post-operatively. The decedent was
survived by his wife and an adult child.
The defendants all denied liability and argued that all
care provided to the decedent was proper and in
accordance with all applicable standards of medical
care. No acts or omissions by the defendants caused
the alleged injuries to the decedent.
The parties settled their dispute for $150,000.
REFERENCE
Estate of Edward Gribbin by Sharon Gribbin vs.
Ashokkumar Thanki, M.D., Mark S. Nemiroff, M.D. and
Frankford Hospital of Bucks County. Case no.
200700642; Judge C. Theodore Fritsch, Jr., 07-18-11.
Attorney for plaintiff: Anthony Baratta of Baratta,
Russell & Baratta in Huntingdon Valley, PA. Attorneys
for defendants: Dean Murtagh of German, Gallagher
& Murtagh in Philadelphia, PA, Daniel J. Sherry of
Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck in
Philadelphia, PA, and John A. Filoreto of Eckert
Seamans Cherin & Mellott, LLC in Philadelphia, PA.
Chiropractic
DEFENDANT’S VERDICT
Medical Malpractice – Chiropractic – Failure to
conduct tests to determine if cervical adjustments
were safe – Stroke.
Philadelphia County, PA
In this medical malpractice case, the plaintiff
alleged that the defendant chiropractor failed to
run proper tests on the plaintiff to make sure that
it was safe for plaintiff to undergo cervical
manipulations. The defendant chiropractor denied
that he was negligent and argued that all care
rendered to the plaintiff was within accepted
standards.
The plaintiff came under the care of the defendant
for chiropractic treatment of the neck, and mid and
low back in 2005. Throughout 2006, the defendant
performed cervical and lumbar manipulations on the
plaintiff. In December of 2006, the plaintiff’s condition
was reevaluated by the defendant; however, the defendant did not perform any diagnostic testing on the
plaintiff. On February 10, 2007, the plaintiff presented
to the defendant for low back pain and despite not
being seen for two months, the defendant performed
cervical and lumbar adjustments. Two weeks later the
plaintiff returned for another appointment and again
his cervical and lumbar spines were adjusted.
During the February 24th appointment, one of the
manipulations of the cervical spine made an unusually loud crack and caused some discomfort. On
February 25, 2007, the plaintiff presented to a local
hospital with complaints of severe headache, facial
numbness, and difficulty walking. He was diagnosed
with a stroke that the plaintiff attributed to the cervical
manipulation. The plaintiff contended that the defendant was negligent in failing to conduct and order
appropriate diagnostic testing to look for vascular abnormalities, failing to conduct tests to determine if
cervical adjustments were safe and failing to conduct cardio vascular screening exams on the plaintiff.
The plaintiff also argued that the defendant
company was vicariously liable for the acts of the
defendant doctor.
As a result of the stroke, the plaintiff suffered gait dysfunction, left vocal cord paralysis, severe hiccups, visual impairment, permanent brain damage, sexual
dysfunction and headaches. The defendant denied
that the stroke was related to the manipulation and
argued that all care provided to the plaintiff was
within the accepted standards.
The jury found that the defendant was not negligent.
REFERENCE
Mark and Alice Pesce vs. Michael Buchakjian, D.C.
and Body Crafters, Inc. Case no. 080904360; Judge
Lisa Rau, 02-09-11.
Attorney for plaintiff: Alan Schwartz of Anapol
Schwartz in Philadelphia, PA. Attorney for defendant:
Andrew Moore of Moore and Riemenschneider in
Abington, PA.
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Nursing Home Negligence
$187,500 RECOVERY
Medical Malpractice – Nursing Home Negligence
– Failure to properly avoid and treat pressure
sores – Overwhelming sepsis – Wrongful death of
78-year-old mother of ten.
Allegheny County, PA
The estate of the decedent, in this nursing home
negligence case, alleged that the defendant
nursing staff failed to take measures to avoid
pressure sores and failed to treat the sores when
they developed. The defendant argued that all
care provided to the decedent was within the
accepted standards.
On January 4, 2007, the plaintiff’s decedent was admitted to the defendant rehabilitation facility due to
the fact that she had suffered a stroke on December
21, 2006. The decedent had lost use of her right arm
and leg and she was on a feeding tube. Also upon
admission to defendant facility, it was noted that she
required assistance with repositioning and was a
moderate risk for skin breakdown.
On January 29, 2007, a nursing note indicated the
development of a small open wound on the decedent’s coccyx. A few weeks later, a nursing note indicated two stage II pressure ulcers on right upper thigh
and buttock. The plan was to reposition the decedent
frequently and use a barrier ointment. Several weeks
later, the decedent’s sores had worsened dramati-
cally and the decedent was running a high fever. She
was transferred to the hospital, given antibiotics and
underwent skin debridement. However, the decedent
developed sepsis and necrotic decubitus ulcers. Her
condition deteriorated until her death on May 18,
2007.
The estate argued that the defendants failed to prevent decedent from developing pressure ulcers,
failed to prevent decedent’s ulcers from progressing,
and failed to regularly turn and reposition decedent.
The defendants denied all liability and asserted that
the decedent’s significant medical history including
poorly controlled diabetes, heart disease and stroke
caused her death not negligence.
The parties settled their dispute for $187,500.
REFERENCE
Trudy R. Johnson, Individually and as the Administratrix
of the Estate of Willa Mae Turner-Jones vs. The Heritage Shadyside d/b/a UPMC Heritage Place, and Advantage Health Harmarville Corporation d/b/a
HealthSouth Harmarville Rehabilitation Hospital. Case
no. gd08-027139; Judge Ronald Folino, 03-04-11.
Attorney for plaintiff: Robert F. Daily of Robert Peirce
and Associates in Pittsburgh, PA. Attorney for
defendant: Francis Garger of Davies, McFarland &
Carroll, P.C. in Pittsburgh, PA.
$45,000 RECOVERY
Medical Malpractice – Nursing Home Negligence
– Failure to properly reposition plaintiff’s
decedent – Development of pressure sores –
Wrongful death of 85-year-old male.
Lancaster County, PA
In this medical malpractice action the decedent’s
estate contends that the defendant nursing home
was negligent in failing to properly and frequently
reposition the decedent in order to prevent bed
sores. As a result the decedent developed two
pressure wounds that became infected and led to
the demise and eventual death of the decedent.
The defendants argue that the care provided to
the decedent was in accordance with all
admission plans and all standards of care.
The decedent was a care dependent resident of the
defendant nursing home. Per his admission papers
the decedent was to be repositioned every two hours
by the staff of the defendant as the decedent could
not do this himself. The medical records revealed
that in April of 2003 for a period of 22 days the staff
of the nursing home failed to turn or reposition the
Volume 29, Issue 10, September 2011
decedent every night for an eight hour period. As a
result the decedent developed two large pressure
sores on his left buttock and sacrum. The sores became infected and necrotic. The decedent was then
transferred to a non-party hospital for the treatment of
stage IV bedsores, however the decedent’s health
continued to decline and he died on May 31, 2003.
The defendants denied that they were negligent and
argued that the decedent’s death was due to an extensive medical history and not any act or omission
of the defendant.
The parties settled their dispute for $45,000.
REFERENCE
Estate of Leroy Weaver by Virginia Kirby, Executrix vs.
Grand Lodge of Pennsylvania d/b/a Masonic Homes
of Elizabethtown. Case no. CI-05-02127; Judge
James P. Cullen, 06-23-10.
Attorney for plaintiff: Ronald Lebovits in
Philadelphia, PA. Attorney for defendant: Stephen
Costello of Post and Schell in Allentown, PA.
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13
Orthopedics
DEFENDANT’S VERDICT
Medical Malpractice – Orthopedics – Failure to
offer conservative treatment of lacerated extensor
tendon and failure to properly splint the finger
post–operatively – Nerve damage resulting in
amputation of right ring finger – Nerve damage to
right hand.
Bucks County, PA
The plaintiff suffered from a lacerated extensor
tendon on the right ring finger. She came under
the care of the defendant doctor to treat the
injury. The plaintiff alleged that the defendant
orthopedic surgeon failed to properly inform
plaintiff of alternative methods to treat the
laceration and failed to perform the procedure
with good surgical technique. The defendant
denied all liability and contended that the
damage to the right hand was the result of the
original injury and not treatment by the
defendant.
On January 11, 2002, the plaintiff presented to the
hospital for the purpose of undergoing a surgical procedure on her right ring finger to repair a lacerated
extensor tendon performed by the defendant orthopedic surgeon. Following the surgery, a pressure splint
was placed on the plaintiff’s finger. The plaintiff experienced severe pain and immobility in the finger. It
was determined that the plaintiff had suffered nerve
damage to the joints and bony parts of the right
hand. As the plaintiff’s post-operative condition continued to deteriorate, it was determined that the
finger needed to be amputated.
The plaintiff has been left with a severe permanent
impairment of the right hand. Additionally, the plaintiff’s husband sued for loss of consortium. The plaintiff
alleged that the defendant surgeon failed to try conservative means of treatment and failed to properly
splint the plaintiff’s finger post-operatively. The defendant asserted that at all times he acted in accordance with reasonable and accepted standards of
medical practice. The defendant denied that any
act or omission by the defendant caused injury to the
plaintiff.
The case went to trial against the defendant surgeon
only with the jury finding that the defendant did not
deviate from the standards of medical care.
REFERENCE
Margaret and Thomas McKevitt vs. Gregory Gallant
M.D. and Doylestown Orthopedic Specialists. Case
no. 200400225; Judge Robert O. Baldi, 07-11-11.
Attorney for plaintiff: Brad S. Rush of Kovler and
Rush in Philadelphia, PA. Attorney for defendant:
John F.X. Monaghan of Monaghan & Fortin P.C in
Elkins Park, PA.
Plastic Surgery
$240,000 RECOVERY
Medical Malpractice – Plastic Surgery – Negligent
treatment of spider angioma – Chemical burns
and scarring to the face of minor.
Bucks County, PA
In this medical malpractice action, the plaintiffs
alleged that the defendant physician negligently
treated a facial spider angioma as a hemangioma
and injected the minors blemish with too high a
solution of chemicals, causing severe burning and
scarring to the plaintiff’s face. The defendant
doctor denied that he was negligent and
contended that the minor suffered a known and
accepted risk of chemical injection.
On April 11, 2007, the minor plaintiff presented to the
defendant osteopathic physician for treatment of a
small red mark on his cheek. At the time, the male
minor was 13. The defendant diagnosed the mark as
a spider angioma and offered either surgical removal which would leave a small scar or chemical
injection which was not leave a scar. The plaintiffs
choose the chemical injection which was performed
during that first appointment.
Immediately after the injection, the minor experienced severe burning. The defendant was unconcerned and only remarked that the angioma was
already gone. The minor was told to wait in the exam
room with his mother while paper work on the procedure was completed. During that time, the minor’s
cheek began to swell and the plaintiff mother called
for the doctor. The defendant doctor explained that
burning and swelling were normal reactions to the injection; the doctor applied an ice pack to the minor’s
cheek and discharged him.
The next day, the pain and swelling were still severe
and the plaintiffs called the defendant. The defendant called in a prescription for a Medrol dose pack
and told the plaintiffs to come to a follow-up appointment in three weeks. When the pain and swelling did
not improve while on the dose pack, the plaintiffs
sought a second opinion with a non-party doctor. This
doctor examined the minor and diagnosed him with
severe chemical burns to the cheek. He opined that
the defendant treated the minor’s angioma as a
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VERDICTS BY CATEGORY
hemangioma and injected too strong a solution of
the chemical used to eradicate the original red
mark.
fendant denied that he was negligent and asserted
that the plaintiff suffered a normal and accepted risk
of chemical injection.
The minor has been left with permanent facial scarring that cannot be addressed until he reaches adulthood, in order to achieve the best result in reducing
the scarring. The minor suffered full thickness chemical burns, necrosis, facial edema and facial scarring.
The plaintiffs alleged that the defendant failed to render reasonable medical care in offering services as a
“facial plastics specialist” when he was not formally
trained in dermatology or plastic surgery.
The parties settled the case for $240,000.
The plaintiffs also maintained that the defendant
failed to properly treat a spider angioma and failed
to properly administer a chemical injection. The de-
REFERENCE
Shane Sutton a minor by and through his pngs Robert
and Tammy Sutton vs. Harold Hammer, D.O. and
Bucks ENT Associates, Inc. Case no. 200903234;
Judge C. Theodore Fritsch, Jr., 06-28-11.
Attorney for plaintiff: Nancy Fullam of McEldrew &
Fullam, P.C in Philadelphia, PA. Attorney for
defendant: Daniel J. McCarthy of Mintzer, Sarowitz,
Zeris, Ledva & Meyers, LLP in Philadelphia, PA.
Surgery
$2,000,000 RECOVERY
Medical Malpractice – Surgery – Failure to have
proper personnel in the lab to address intubation
complications – Anoxic encephalopathy –
Wrongful death of 39-year-old female.
Allegheny County, PA
The estate of the decedent alleged that the
defendant doctor and hospital were negligent in
failing to properly respond to a surgical
complication, causing the decedent to suffer
anoxic encephalopathy resulting in death. The
defendants contended that the decedent’s death
was the result of her congenital heart defect and
not negligence.
The evidence in this medical malpractice action revealed that the decedent had a history of congenital
complete heart block and had a pacemaker installed in 1996. The decedent suffered no serious
complications from this procedure and led a normal
and active life, working and raising a family. In 2007
while under the care of the defendant cardiologist,
the decedent was advised to have her pacemaker
changed and her atrial malfunction leads removed.
The defendant performed this procedure in the electro-physiology lab of the defendant hospital on
October 15, 2007.
During the procedure, the decedent suffered a
known complication which was a heart perforation.
She went into cardio-pulmonary arrest and was
intubated. The intubation, however, was not performed correctly and was placed in her esophagus.
As a result, the decedent had been anoxic for 40
minutes and suffered anoxic encephalopathy, which
caused her death at 9:40 p.m. on October 19, 2007.
The decedent is survived by her husband and three
young adult daughters.
The estate of the decedent alleged that the defendant doctor failed to have proper personnel in the
lab to address complications, failed to initiate a
code to ensure that experienced medical personnel
would respond a.s.a.p., and continued to remove
the atrial lead after encountering difficulty removing
it. The estate argued that the hospital was negligent
in failing to enforce procedures to address adequate
response to emergencies in the electro-physiology
lab due to known lead extraction complications. The
defendants argued that the decedent’s death was
the result of the underlying medical condition and
not negligence.
The parties settled their dispute for $2,000,000.
REFERENCE
Estate of Julie Sinclair by John Sinclair vs. John G.
Chenarides, M.D. and Allegheny Specialty Practice
Network and West Penn Allegheny Health System, Inc.
Case no. GD-09-018488; Judge Eugene Strassburger.
Attorney for plaintiff: William Schenck of Schenck &
Long in Butler, PA. Attorney for defendant: David R.
Johnson of Thomson, Rhodes & Cowie, P.C. in
Pittsburgh, PA.
$2,000,000 RECOVERY
Medical Malpractice – Surgery – Negligent preoperative and post-operative care – Wrongful
death of five-year-old male following
tonsillectomy.
Volume 29, Issue 10, September 2011
Allegheny County, PA
The minor plaintiff underwent a bilateral tube
placement and tonsillectomy with adenoidectomy
performed by the defendant surgeon in order to
treat an extensive history of ear and throat
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problems with significant snoring and sleep
apnea. The minor was sent home approximately
two hours after the surgery was completed. The
next morning, the minor’s mother heard the
minor making gurgling noise while in his bed and
ran into the minor’s room where she found him in
respiratory failure. The plaintiff’s mother initiated
rescue breathing and called 911, but all efforts to
revive the minor were unsuccessful. The plaintiffs
sued the ENT who recommended the procedure,
the surgeon who performed the procedure and
the hospital where the pre-operative and postoperative care took place. All defendants denied
all liability.
The minor decedent had a significant medical history
of wheezing, snoring, sleep apnea, asthma, obesity,
chronic ear infections and tonsil infections. The defendant ENT specialist opined that the minor was a
good candidate for bilateral tube placement with
tonsillectomy and adenoidectomy. On June 18,
2008, the procedure was performed by the defendant surgeon who was also the defendant ENT’s partner. The surgery was performed without complication.
Following the procedure, the minor was given an
anti-nausea medication and three 10 mg dose of
Fentanyl. He was sent home with a prescription of
Tylenol with codeine.
The following morning, the minor’s mother heard the
minor gurgle or gasp and when she entered his bedroom, she found him unresponsive. She immediately
started CPR and called 911. The minor was transferred to the hospital where he was pronounced
dead. The plaintiffs alleged that the defendants neg-
15
ligently advised the plaintiffs to give the minor his
albuterol treatment prior to the surgery and the
albuterol combined with the post-operative Fentanyl
and Tylenol with codeine produced a synergistic drug
toxicity that caused the minor’s death.
The defendants denied that there was any negligence in the pre-operative or post-operative care
the minor received. They argued that all medications
given to the minor were appropriate doses and within
the accepted standards of care. The defendants alleged that the minor died of acute myocarditis not
drug toxicity.
The parties settled their dispute for $2,000,000.
REFERENCE
Defendant’s infectious disease expert: Michael Neely,
M.D. from Los Angeles, CA.
Estate of Jacob Deniziuk by Steven and Mary Deniziuk
vs. Metropolitan Ear, Nose & Throat Associates; Philip
A. Pollice, M.D.; James E. Blaugrund, M.D, Linda Diamond P.A.C. and West Penn Allegheny Health System, Inc. Case no. GD-09-012186; Judge Eugene
Strassburger, 03-18-11.
Attorney for plaintiff: Alan Perer of Swensen Perer &
Kontos in Pittsburgh, PA. Attorney for defendant:
Terry C. Cavanaugh of White and Williams in
Pittsburgh, PA. Attorney for defendant: Paul Vey of
Pietragallo Gordon Alfano, et al. in Pittsburgh, PA.
$552,269 VERDICT
Medical Malpractice – Surgery – Failure to remove
laparotomy sponge during Cesarean section –
Sponge adheres to bowel – Bowel perforation due
to adhesions – Surgery to remove 16 inches of
bowel required.
Bucks County, PA
In this medical malpractice action, the plaintiff
alleged that the defendant nurses and doctor
failed to do a required sponge count following the
plaintiff’s Cesarean section. Consequently, the
plaintiff’s abdomen was closed with a lap sponge
enclosed. The defendant doctor alleged he relied
on the count performed by the defendant nurses
before closing the abdomen. The defendant
nurses alleged that the sponge counts were
performed in accordance with the standards of
care.
On March 30, 2004, the defendant doctor performed
a Cesarean section on the plaintiff. After the procedure, the plaintiff complained of severe abdominal
pain which the defendant contributed to normal
post-surgery pain. On June 18th, nearly two months
after she gave birth, the plaintiff went to St. Mary’s
Medical Center in Middletown, complaining of
severe pain.
A CT-scan of her abdomen and pelvis revealed a
“lap sponge within the lower abdomen and upper
pelvis which was most likely left during prior surgery”.
The sponge had adhered to her bowel causing a severe infection and bowel perforations. Surgery was required to remove 16 inches of the plaintiff’s bowel.
The plaintiff alleged that the defendant nurses and
doctor failed to perform the required number of
sponge counts before, during and after surgery.
The defendants all denied all liability. They specifically
denied that any act or omission by the defendants
caused any injury to the plaintiff.
The jury found that the defendant doctor was not
negligent. The jury found the two defendant nurses
negligent and awarded against the hospital for being
vicariously liable for the nurses. They awarded
$552,269.
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REFERENCE
Erin Webster vs. Temple University Hospital, Bucks
County Ob/Gyn Association, Megan Blatcher, RN,
LaurenTedesco, RN, Temple Lower Bucks Hospital,
Richard Turner, D.O., and Women’s Health Services of
Bucks County. Case no. 200503038; Judge Clyde
Waite, 07-18-11.
Attorney for plaintiff: Jack S. Cohen in Philadelphia,
PA. Attorney for defendant: J. Kurt Straub of
Obermayer Rebmann Maxwell & Hippel LLP in
Philadelphia, PA.
PRODUCT LIABILITY
Manufacturing Defect
$20,000 RECOVERY
Product Liability – Manufacturing defect of chicken
– Plaintiff injures mouth eating hard grizzle in
chicken sandwich – Fractured teeth – TMJ –
Anxiety and emotional distress.
Allegheny County, PA
The plaintiff was a business invitee of the
defendant restaurant. She bit down into her
teriyaki chicken sandwich and bit into a hard
piece of grizzle, causing injury to her mouth. The
plaintiff brought suit against the restaurant that
sold her the sandwich and the supplier who
provided the chicken to the restaurant.
On July 14, 2009, the plaintiff purchased a teriyaki
chicken sandwich from the defendant restaurant, utilizing ingredients supplied by the defendant food supply company. When the plaintiff bit into her sandwich,
she bit down on a hard piece of grizzle that caused
her to sustain several fractured teeth requiring crowns
and root canals, TMJ requiring surgical intervention,
anxiety and emotional distress.
The plaintiff alleged that the defendant restaurant
negligently prepared, merchandised and sold a
sandwich that was unfit for human consumption. The
plaintiff also alleged that the defendant food supplier
failed to properly inspect their chicken. Both defendants denied all liability and claimed that the plaintiff
was comparatively negligent.
The plaintiff settled with both defendants for a total
$20,000.
REFERENCE
Sharon Michler vs. Miller & Shotsberger, Inc. d/b/a
Subway and West Liberty Foods. Case no. 10005498.
Attorney for plaintiff: Kevin O’Malley of O’Malley &
Magley in Pittsburgh, PA. Attorneys for defendant:
Mark Reilly in Pittsburgh, PA, and Donald Smith of
Law Offices of Mason & Eiseman.
BUS NEGLIGENCE
$17,500 RECOVERY
Bus Negligence – Failure to keep transit van still
while plaintiff was boarding – Aggravation of
osteoarthritis of the knee – Total knee
replacement required.
Allegheny County, PA
The estate of the decedent continued this case
after the unrelated death of the plaintiff. The
plaintiff was boarding a transit van when the
defendant operator moved the van, causing the
plaintiff to fall to the floor and sustain injury. The
defendant denied all liability.
On July 15, 2006, the decedent was boarding a transit vehicle outside her home in Pittsburgh when the
vehicle shifted, causing the plaintiff to fall to the
ground and sustain a knee injury, requiring a total
knee replacement. The decedent died of unrelated
causes prior to the settlement of this lawsuit.
Volume 29, Issue 10, September 2011
The decedent’s estate argued that the defendant
was negligent in failing to set the emergency brake
as required and in disregarding the safety and
wellbeing of the decedent. The defendant denied all
liability and injury and argued that decedent’s injuries
were preexisting and not related to the incident.
The parties settled the case for $17,500.
REFERENCE
Robert E. Kearney Administrator of the Estate of Nora
B. Kearney vs. Laidlaw Transit Services, Inc. Case no.
gd07012135; Judge Eugene Strassburger.
Attorney for plaintiff: John W. McTiernan of
Caroselli, Beachler, McTiernan & Conboy in
Pittsburgh, PA. Attorney for defendant: Eric N.
Anderson of Meyer, Darragh, Buckler, Bebenek & Eck
in Pittsburgh, PA.
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17
MOTOR VEHICLE NEGLIGENCE
Auto/Bicycle Collision
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Auto/Bicycle Collision
– Defendant turns left and strikes the plaintiff
bicyclist – Left knee ligament tears – Neck and
back sprains.
tear of the left ACL, a tear of the medial meniscus of
the left knee with hemarthrosis, cervical/lumbar/thoracic sprain and strain and lower left extremity
radiculitis.
Bucks County, PA
The plaintiff asserted that the defendant made an improper left hand turn and failed to make proper observations of traffic. The plaintiff also alleged that the
defendant owner negligently entrusted the vehicle to
the defendant driver. The defendant denied all liability and argued that the plaintiff was comparatively
negligent for failing to follow the rules of the road.
The plaintiff in this motor vehicle negligence case
was riding his bicycle in the opposite direction
from the defendant driver approaching an
intersection when the defendant made a left turn
and collided with the plaintiff. The defendant
denied that she was negligent and argued that
the plaintiff assumed the risk of his actions and
was comparatively negligent.
On January 2, 2005, the plaintiff was traveling in a
northerly direction on his bicycle on Sexton Lane in
Bucks County. At the same time the defendant was
traveling in a southerly direction on Stonybrook Drive
approaching its intersection with Sexton Lane. As both
the plaintiff and the defendant reached the intersection, the defendant made a left turn and collided
with the plaintiff. Consequently, the plaintiff suffered a
The jury found the defendant 33% negligent and the
plaintiff 67% negligent.
REFERENCE
John Wright vs. Linda and Roger Decheraux. Case
no. 200611454; Judge Robert J. Mellon, 06-28-11.
Attorney for plaintiff: Marshall E. Kresman in
Bensalem, PA. Attorney for defendants: Frederick E.
Smith of Dion, Rosenau & Smith in Philadelphia, PA.
Auto/Motorcycle Collision
$12,000 RECOVERY
Motor Vehicle Negligence – Auto/Motorcycle
Collision – Plaintiff’s police motorcycle is struck in
the rear by defendant while stopped at a red light
– Lumbar injuries.
Allegheny County, PA
In this rear end collision case, the plaintiff was
injured when his police motorcycle was struck in
the rear by a vehicle operated by the defendant
driver. The impact caused the plaintiff to be
thrown over the handle bars to the ground below
causing injury to the plaintiff. The defendant
admitted liability in causing the accident, but
argued that the plaintiff did not sustain a serious
or permanent injury.
On January 13, 2007, the male plaintiff, age 39, was
safely operating his police motorcycle at the intersection of West Carson Street and West End Circle in Pittsburgh. The plaintiff was at a complete stop at a red
light on Carson Street when, suddenly and without
warning, the defendant struck the plaintiff’s vehicle in
the rear causing the plaintiff to flip over the handlebars of his motorcycle and fall to the ground.
As a result, the plaintiff sustained a lumbar sprain, L4L5 disc space narrowing, a shoulder sprain and a
sprained ankle. The plaintiff argued that the defendant failed to maintain an assured clear distance between her vehicle and the plaintiff’s motorcycle. The
defendant admitted liability, but argued that the
plaintiff was not seriously injured in the incident.
The parties settled their dispute of $12,000.
REFERENCE
Garrett Brown vs. Alice Joanna Minnitte. Case no. 09000057; Judge Stanton R. Wettick, 04-26-11.
Attorney for plaintiff: Wayne M. Chiurazzi of
Chiurazzi and Mengine in Pittsburgh, PA. Attorney
for defendant: Guy Blass of Summers McDonnell
Hudock Guthrie & Skeel LLP in Pittsburgh, PA.
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Auto/Pedestrian Collision
$115,000 RECOVERY
Motor Vehicle Negligence – Auto/Pedestrian
Collision – Plaintiff’s decedent is struck while
crossing the street in a crosswalk – Wrongful
death of 85-year-old male.
Allegheny County, PA
The estate of the elderly decedent contended that
the decedent was lawfully crossing the street
when the defendant, who was being inattentive,
struck the decedent. The defendant argued that
the decedent assumed the risk of his actions.
On June 6, 2008, the plaintiff’s decedent was lawfully
walking across the William Penn Highway near Penn
Center Mall when the defendant, who exiting the
Sears parking lot at the mall, made a left turn onto
William Penn Highway, striking the decedent. The decedent died the next day from the blunt force injuries
he sustained to his head in the accident.
The decedent’s estate alleged that the defendant
driver was negligent for operating her vehicle in a
dangerous and reckless manner and failing to pay
proper attention. Additionally, the decedent’s estate
argued that the defendant vehicle owners negligently
entrusted their vehicle to their daughter. The defendants denied all liability. They argued that the defendant driver was a partial car owner and not a
permissive driver and they argued that the decedent
was comparatively negligent and assumed the risk of
his actions.
The parties settled their dispute for $100,000. The decedent’s estate collected an additional $15,000 from
their under insured motorist coverage.
REFERENCE
Thomas Kaiser Executor of the Estate of Harold Kaiser
vs. Lindsey Miggantz and Neil and Heather Sue
Miggantz. Case no. gd09008497; Judge Eugene
Strassburger.
Attorney for plaintiff: Bryan Neiderhiser of Marcus &
Mack P.C. in Indiana, PA. Attorney for defendant:
Gregg Guthrie of Summers McDonnell Hudock
Guthrie & Skeel LLP in Pittsburgh, PA.
$14,000 VERDICT
Motor Vehicle Negligence – Auto/Pedestrian
Collision – Plaintiff is struck while crossing the
street in a crosswalk with a green light – Closed
head injury – Sprain and strain injuries.
Allegheny County, PA
In this motor vehicle and pedestrian case, the
plaintiff alleged that she was crossing the street in
a crosswalk with a green light when the
defendant made a left turn and struck the
plaintiff. The defendant denied she struck the
plaintiff and claimed the plaintiff either walked
into her vehicle or staged the accident.
On December 11, 2008, the plaintiff was a pedestrian crossing from the western curb to the eastern
curb of Smithfield Street in a crosswalk with a green
light when she was struck by the defendant. The defendant was making a left hand turn onto Smithfield
Street at the time of the collision.
The plaintiff suffered a closed head injury, right hip
sprain, and a low back injury with radiculitis. The defendant denied all liability and argued that the defendant never made contact with the plaintiff. The
defendant claimed that the plaintiff banged on her
car in heavy traffic and a severe down pour and then
threw herself on the ground claiming she was struck.
The jury found the defendant was negligent and that
her negligence was a factual cause of bringing harm
to the plaintiff.
REFERENCE
Mary Slaynski vs. Margaret Sumney. Case no. GD-09003008; Judge Paul F. Lutty, 01-25-11.
Attorney for plaintiff: Carlyle J. Engel of The Law
Firm of Swensen Perer & Kontos in Pittsburgh, PA.
Attorney for defendant: Laura Signorelli in
Pittsburgh, PA.
Auto/Truck Collision
$80,000 VERDICT
Motor Vehicle Negligence – Auto/Truck Collision –
Bulldozer reverses into the side of host vehicle –
Neck and back disc injuries to rear seat
passenger.
Philadelphia County, PA
Volume 29, Issue 10, September 2011
The plaintiff in this case alleged that she was
injured when she was a passenger in a vehicle
that was stopped at an intersection. At the same
time the defendant driver operated a bulldozer in
reverse and collided with the rear side of the host
vehicle. The defendants denied all liability and
asserted that the host vehicle failed to note the
position of the bulldozer already being operated
in reverse.
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19
The 67-year-old female plaintiff claimed that on June
20, 2007, at the intersection of 1700 Sansom Street,
she suffered a L4-5 disc herniation, discogenic disease at C3-C4 C4-C5, and cervical spinal stenosis
when the defendant bulldozer operator working for
the defendant construction company operated a
bulldozer in reverse and collided with the rear quarter
panel of the host vehicle in which plaintiff was a rear
seat passenger. The plaintiff argued that the defendant was negligent in failing to have vehicle under
proper and adequate control, failing to stay in proper
lane of travel, and in violating the host vehicle’s rightof-way.
The defendants denied all liability and contended
that they were lawfully operating a bulldozer in reverse at a work site when the host driver failed to note
the point and position of the bulldozer and failed to
use proper care.
The jury found the defendants negligent and
awarded the plaintiff $80,000.
REFERENCE
Evelyn Gilmore vs. Edward Dugan and Danella Construction Corporation. Case no. 090702035; Judge
George Overton, 12-21-10.
Attorney for plaintiff: Stephen Magley of O’Malley &
Magley in Pittsburgh, PA. Attorney for defendant:
Lawrence Solomon of Solomon Sherman & Gabay in
Philadelphia, PA.
Intersection Collision
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Intersection Collision
– Failure to make proper observations of traffic –
Neck and back injuries to driver and passenger.
Philadelphia County, PA
The plaintiffs alleged that the defendant driver
failed to operate his vehicle in a careful and
prudent manner causing a collision in an
intersection. The plaintiffs also asserted a
negligent entrustment claim against the
defendant car owner. The defendant car owned
denied that the defendant driver was a permissive
user of the vehicle. The defendant driver denied
that he was negligent.
The plaintiff’s in this motor vehicle negligence case
were the driver and the front seat passenger of a vehicle that was proceeding through the intersection of
64th Street and Lindbergh Boulevard in the city of Philadelphia when their vehicle was struck by a vehicle
operated by the defendant.
The plaintiffs claimed to have suffered cervical, thoracic and lumbar sprains and strains. The defendants
denied all liability and denied that the plaintiffs were
injured as a result of the collision.
The jury found the plaintiffs did not suffer a serious or
permanent injury.
REFERENCE
Joang and Angelian Dieu vs. Carlos Law and Marvin
Scott. Case no. 081203167; Judge Joseph Papalini,
03-02-11.
Attorney for plaintiff: Steven M. Dranoff of Dranoff
Associates in Philadelphia, PA. Attorney for
defendant: Beth Carter of Bennett, Bricklin &
Saltzburg LLP in Philadelphia, PA.
Left Turn Collision
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Left Turn Collision –
Plaintiff’s vehicle is struck as defendant makes left
turn at an intersection – Failure to make
reasonable observations of traffic – Cervical and
lumbar injuries.
Allegheny County, PA
In this vehicular negligence case, the plaintiff
alleged she was injured when her vehicle was
proceeding through an intersection and was
struck by the defendant making a left turn at the
intersection. The defendant admitted liability in
causing the accident, but denied that the plaintiff
was injured as a result of the accident.
On March 31, 2007, the female plaintiff was proceeding north at the intersection of Campbell’s Run
Road and Steubenville Pike. At the same time, the
defendant was proceeding south at the same intersection when he made a left turn in front of the plaintiff, causing a collision. The plaintiff alleged that the
defendant failed to make proper observations of traffic and failed to yield the right-of-way to the plaintiff.
As a result, the plaintiff suffered cervical and lumbar
sprains. Additionally, the plaintiff’s husband made a
claim for loss of consortium. The defendant admitted
liability in causing the collision, but denied that the
plaintiff sustained any injury.
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The jury found that the defendant did not sustain any
serious or permanent injury.
REFERENCE
Attorney for plaintiff: Gary Ogg of Ogg, Cordes,
Murphy & Ignelzi in Pittsburgh, PA. Attorney for
defendant: Thomas McDonnell of Summers,
McDonnell, et al. in Pittsburgh, PA.
Belinda and William Pratt vs. Jason Gasbarrini. Case
no. gd09005623; Judge Paul F. Lutty, 12-02-10.
Rear End Collision
$2,500 RECOVERY
Motor Vehicle Negligence – Rear End Collision –
Failure to keep an assured clear distance –
Multiple sprain and strain injuries to the driver
and passenger.
scopic shoulder surgery which was performed five
days prior to the accident, right shoulder sprain and
lumbar sprain. The defendant denied all liability and
claimed that all injuries were preexisting.
Allegheny County, PA
The case was arbitrated, with an award for the male
plaintiff of $2,500 and an award for the female plaintiff of $14,097.57. The defendant appealed the arbitration, but later settled with the plaintiffs for the
arbitration amount.
In this rear end collision case the plaintiffs’
claimed that they were injured when their vehicle,
which was stopped at a red light, was struck in
the rear by the defendant. The defendant denied
all liability in causing the accident and claimed
that the plaintiffs’ injuries were preexisting.
On March 27, 2007, the plaintiffs were stopped in
their vehicle at a red light on Fort Couch Road in
Bethel Park, Pennsylvania when their car was struck in
the rear. The plaintiffs alleged that the defendant
failed to maintain an assured clear distance and
failed to properly apply his brakes.
The male plaintiff alleged he suffered a shoulder
sprain along with a lumbar sprain. The female plaintiff
suffered a cervical sprain, aggravation of left arthro-
REFERENCE
Benedict and Mary McGrosky vs. Gary Nagy. Case
no. AR-09-002592; Judge Eugene Strassburger.
Attorney for plaintiff: Wayne M. Chiurazzi of
Chiurazzi and Mengine in Pittsburgh, PA. Attorney
for defendant: William McPartland of Marshall,
Dennehey, Warner, Coleman & Goggin in Pittsburgh,
PA.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Rear End Collision –
Defendant operates vehicle at an excessive rate of
speed – Neck and back injuries to driver and
passenger.
Philadelphia County, PA
In this rear end collision case, the driver and her
front seat passenger both claimed that they were
injured when their stopped vehicle was struck in
the rear at an intersection. The defendant
admitted liability, but denied that the plaintiffs
sustained any serious or permanent injury.
On November 10, 2007, the plaintiff and her front
seat passenger were stopped at the intersection of
77th street and Ogontz Avenue in the city of Philadelphia when their vehicle was struck in the rear by the
defendant. The driver suffered herniated discs at C5C6 and C6-C7. The passenger suffered a disc
herniation at L4-L5.
Volume 29, Issue 10, September 2011
The plaintiffs maintained that the defendant operated her vehicle at an excessive rate of speed and
failed to keep a proper lookout. The defendant admitted liability in striking the plaintiffs’ vehicle, but denied that either plaintiff suffered a serious or
permanent injury.
The jury found that the defendant’s negligence was
not a substantial factor in bringing harm to the
plaintiffs.
REFERENCE
Deborah Gholson Evans and Raheema Tucker vs.
Tara Blake. Case no. 090900280; Judge Eugene
Maier, 02-09-11.
Attorney for plaintiff: Elizabeth Savitt in Bala
Cynwyd, PA. Attorney for defendant: Kevin McNulty
of Gerolamo McNulty Divis & Lewbart in
Philadelphia, PA.
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21
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Rear End Collision –
Defendant strikes plaintiff’s vehicle in the rear at
stop sign – Herniated disc – Neck and back
sprains.
Bucks County, PA
The plaintiff was stopped at a stop sign when his
vehicle was struck in the rear by the defendant.
The defendant admitted liability in striking the
rear of plaintiff’s vehicle, but denied that the
plaintiff sustained a serious or permanent injury.
On July 15, 2006, the female plaintiff was proceeding
southbound on Bustleton Pike approaching its intersection with Knowles Avenue in Bucks County when
the defendant failed to stop for a stop sign and struck
the plaintiff’s vehicle in the rear. As a result, the plaintiff suffered a herniated disc at T9-10, cervical/thoracic/lumbar sprain and strain with segmental
dysfunction and a concussion. Additionally, the plaintiff’s husband sued for loss of consortium.
The plaintiff alleged that the defendant was inattentive and traveled at an excessive rate of speed. The
defendant admitted liability in causing the collision,
but denied that the plaintiff suffered a serious or
permanent injury.
The jury found the defendant did cause harm to the
plaintiff, but that the plaintiff did not suffer a serious or
permanent injury.
REFERENCE
Anna and Alexandr Pristatzkaya vs. David Kelly. Case
no. 200802400; Judge Gary Gilman, 06-20-11.
Attorney for plaintiff: Jeffrey S. Michel of Hoffman,
Michels, & Sternberg, LLC in Southampton, PA.
Attorney for defendant: James A. Godin of Palmer &
Barr, P.C. in Willow Grove, PA.
Reverse Collision
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Reverse Collision –
Defendant’s vehicle strikes the plaintiff’s vehicle
backing out into traffic – Neck and back injuries to
driver and front seat passenger.
Philadelphia County, PA
The plaintiff driver and his front seat passenger
were injured when their car was struck in the side
by the defendant who had turned the wrong way
down a one way road and the backed out into
traffic after realizing his mistake, striking the side
of plaintiff’s car. The defendant denied all liability
and argued that the plaintiff struck the rear of the
defendant’s vehicle as he was backing out of the
side road and the plaintiff could have avoided the
collision.
The plaintiff and his front seat passenger were traveling southbound on a city street when their car was
struck in the side by the defendant. The defendant
had also been traveling southbound on the same
road when he made a right turn the wrong way down
a one way road. Realizing his error, the defendant reversed his vehicle back out onto southbound traffic
where he struck the plaintiff’s vehicle.
As a result, the plaintiffs suffered cervical/thoracic/
lumbar sprain and strain and emotional distress. The
plaintiffs alleged that the defendant negligently disregarded a one way sign and violated the plaintiff’s
right-of-way. The defendant denied all liability and alleged that he was backing out of the side street after
realizing his mistake when the plaintiff’s vehicle, traveling at an excessive rate of speed, struck the
defendant’s vehicle in the rear.
The jury found the defendant was not negligent.
REFERENCE
Willie Mae Dixon and Pauline Lloyd vs. David Lattanze.
Case no. 090403784; Judge Eugene Maier, 02-1611.
Attorney for plaintiff: Lee S. Bender of Joseph
Chaiken & Associates, P.C. in Philadelphia, PA.
Attorney for defendant: Cy Goldberg of Cy Goldberg
and Associates in Philadelphia, PA.
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Sideswipe Collision
$79,000 RECOVERY
Motor Vehicle Negligence – Sideswipe Collision –
Defendant strikes side of host vehicle, causing
child in unsecured booster seat to be thrown
around rear of car – Facial fractures and
lacerations to minor plaintiff.
Allegheny County, PA
In this motor vehicle negligence case, the minor
plaintiff was a back seat passenger in a booster
seat that was not properly secured to the rear seat
when the minor’s vehicle was sideswiped by the
defendant driver. As a result, the minor and her
booster seat were thrown about the interior of the
car causing injuries to the minor. The defendant
asserted that he was faced with a sudden
emergency and could not avoid striking the
plaintiff’s vehicle.
On March 4, 2008, the minor plaintiff was a passenger in a vehicle that was traveling northbound on
McKnight Road in Ross Township, Allegheny County.
At the same time, the defendant was traveling on the
same road in the lane adjacent to the plaintiff’s vehicle when he swerved into the plaintiff’s lane,
sideswiping the passenger side of the plaintiff’s
vehicle.
As a result, the minor suffered a right petrous bone
fracture, a right temporal bone fracture, a 2 x 4 cm
laceration on the right occipital region, a grade II
liver laceration, facial and upper thigh abrasions,
hematuria, along with headaches and dizziness. The
plaintiffs alleged that the defendant was traveling at
an excessive rate of speed and failed to keep his vehicle under proper control. The defendant denied all
liability in causing the collision and argued that he
was faced with a sudden emergency and could not
avoid striking the plaintiff’s vehicle.
The minor plaintiff settled with the defendant driver for
$59,000 and with her own under insured motorist carrier for $20,000.
REFERENCE
Apryl Vassel a minor by and through her png Amanda
Platek vs. Anthony Naples. Case no. GD-10-003628;
Judge Ronald Folino, 04-19-11.
Attorney for plaintiff: Anthony Erlain in Pittsburgh,
PA. Attorney for defendant: William R. Haushalter of
Margolis Edelstein in Pittsburgh, PA.
POLICE LIABILITY
$3,500 VERDICT
Police Liability – Plaintiff walking on defendant’s
police station property is attacked by police dog –
Failure to restrain K9 dog – Thigh laceration and
“tennis elbow”.
Allegheny County, PA
The male plaintiff was attempting to enter the
defendant’s police station when a police officer
opened the door of the station and the
department’s K9 dog ran out the door and to the
plaintiff, jumping on the plaintiff and biting his
thigh. The defendants denied all negligence and
claim that the dog’s handler was leaving the
police station with the dog in order to go out on
patrol when the dog perceived the plaintiff as a
threat and ran and jumped up on the plaintiff.
On September 28, 2007, the 59-year-old plaintiff was
a business invitee of the defendant borough’s police
department. As he was approaching the building, an
officer of the department opened the door and the
department’s K9 dog charged at the plaintiff. The
dog jumped up on and bit the plaintiff.
Volume 29, Issue 10, September 2011
As a result, the plaintiff suffered two puncture wounds
to the thigh, aggravation of prior back problems and
“tennis elbow”. The plaintiff alleged that the defendant failed to properly control the police dog, negligently allowed the dog to run freely and failed to
properly train the police dog. The defendant denied
liability and denied that the plaintiff suffered any injury
other than the thigh punctures.
The jury found that the defendant was negligent and
that their negligence was a substantial cause of injury
to the plaintiff. However, the jury found the plaintiff
suffered only the thigh punctures as a result of the incident and awarded the plaintiff past medicals of
$3,500 used to treat the punctures.
REFERENCE
Harry Siak vs. Borough of Castle Shannon. Case no.
gd08018120; Judge Paul F. Lutty, 12-13-10.
Attorney for plaintiff: Gary F. Sharlock of Marks
O’Neill O’Brien & Courtney PC in Pittsburgh, PA.
Attorney for defendant: Mark Neff of Marshall,
Dennehey, Warner, Coleman & Goggin in Pittsburgh,
PA.
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PREMISES LIABILITY
Hazardous Premises
$40,000 RECOVERY
Premises Liability – Hazardous Premises – Trip and
fall at playground – Minor plaintiff suffers severe
humerus fracture – Surgery and physical therapy
required.
post-operative physical therapy. Four months later, in
an unrelated incident, the minor broke his arm again
in the same location due to the weakness of the
bone.
Allegheny County, PA
The plaintiffs alleged that the defendant was negligent for failing to keep the premises in safe condition,
permitting a hazardous condition to exist on the premises and in failing to warn the minor of the dangerous condition. The defendant argued that the minor
plaintiff assumed the risk of his actions and was
comparatively negligent.
The minor plaintiff was a kindergarten student at
the defendant school and was playing on the
playground when he tripped and fell on an
elevation difference between the asphalt of the
playground and a wood chip area of the
playground. The defendant’s denied that a
hazardous condition existed on the premises and
argued that the minor plaintiff was comparatively
negligent.
On April 24, 2007, the minor plaintiff was in kindergarten at Abraham Lincoln Elementary school in Bethel
Park. He was playing on the playground when he tripped and fell as a result of an elevation difference between the blacktop and wood chip area that
surrounded the playground equipment.
The parties settled their dispute for $40,000.
REFERENCE
Ellis Bott a minor by and through his png Chad and
Melinda Bott vs. Bethel Park School District. Case no.
GD-09-005291; Judge Eugene Strassburger.
Attorney for plaintiff: John Evans in Pittsburgh, PA.
Attorney for defendant: Joseph Luvara of Dickie,
McCamey & Chilcote, P.C. in Pittsburgh, PA.
As a result, the minor suffered a severe fracture of left
humerus which required closed reduction and internal fixation. The minor required a month and a-half of
$2,500 VERDICT
Premises Liability – Hazardous Premises – Trip and
fall on cracked and uneven pavement in parking
lot – Right ankle and foot sprain.
Allegheny County, PA
In this premises liability case, the plaintiff
contended that he was injured when he tripped
and fell on an uneven surface in the parking lot
owned and controlled by the defendant. The
defendant maintained that the plaintiff was
comparatively negligent and assumed the risk of
his actions.
On March 19, 2009, the plaintiff was exiting the defendant’s retail store located on Rodi Road in Pittsburgh when he tripped and fell on an uneven section
of concrete in the parking lot. As a result, he suffered
a right ankle sprain, a right foot sprain and right arm
pain. Additionally, the plaintiff’s wife made a claim for
loss of consortium.
The plaintiff alleged that the defendant was negligent
in failing to reasonably inspect the parking lot, failing
to make proper repairs to the parking lot and in allowing a hazardous and dangerous condition to exist in
the parking lot. The defendant denied that the plaintiff sustained a serious injury and maintained that he
assumed the risks of his actions.
The plaintiff was awarded $2,500 for his injuries; no
award was given to the plaintiff’s wife for her loss of
consortium claim.
REFERENCE
Christopher Simmons and Ruth Adamson h/w vs. Advance Auto Parts, Inc. Case no. 10-000463.
Attorney for plaintiff: G. Christopher Apessos of
Ainsman, Levine & Drexler, LLC in Pittsburgh, PA.
Attorney for defendant: Douglass Klaber of Robb
Leonard Mulvihill in Pittsburgh, PA.
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VERDICTS BY CATEGORY
Negligent Maintenance
$12,500 RECOVERY
Premises Liability – Negligent Maintenance –
Failure to properly maintain and inspect furnace –
Carbon monoxide poisoning to family of five.
plaintiffs, as well as the parents all felt ill and sought
treatment at a local hospital. They were diagnosed
with carbon monoxide poisoning.
Allegheny County, PA
The plaintiffs contended that all the defendants failed
to take all necessary precautions to ensure that the
furnace was installed and maintained properly, failed
to follow all applicable building codes in the installation, maintenance and/or repair of all HVAC equipment, and committed acts of omission or acts of
commission that failed to properly protect the plaintiffs. All of the defendants denied all liability and denied that the plaintiffs suffered compensable injuries.
In this premises liability action, the plaintiffs
rented a residential home from the defendant
property owners that was maintained by the
defendant property manager. The carbon
monoxide detector on the premises was beeping
and the plaintiffs called the defendants to inform
them of the problem. The defendant HVAC
company came out to make repairs to the
furnace. Shortly after the repairs were made, the
plaintiffs all became ill and required
hospitalization where they were diagnosed with
carbon monoxide poisoning. All of the defendants
denied all liability in causing the plaintiffs injuries
and each defendant blamed the others for the
incident.
On December 30, 2007, the plaintiffs were all tenants
of a residential home owned by the defendant property owners. The carbon monoxide detector began
beeping and the defendant property owners and
management company were alerted of the situation.
The defendant repair company came out to the premises on December 31, 2007, and made repairs to
the furnace. On January 9, 2008 the three minor
The $12,500 settlement was split between the five
plaintiffs.
REFERENCE
Gabrielle, Justina and Rebecca Mills, minors by and
through their png Jeffrey, Christine Mills and Jeffrey
and Christine Mills Individually vs. Edward and Margaret Zabela, F. David Sylvester & Associates Inc. and
Gerard Plumbing & Heating Company. Case no. GD09-023967; Judge Ronald Folino, 03-15-11.
Attorney for plaintiffs: Joseph Kulik in McKees Rocks,
PA. Attorney for defendants: Joni Mangino of
Zimmer and Kunz in Pittsburgh, PA.
STATE LIABILITY
$20,000 RECOVERY
State Liability – Decedent’s vehicle hydroplanes on
flooded road and overturns in a creek – Plaintiff
claims negligent design of road – Wrongful death.
coming to rest on its roof in a nearby creek with the
decedent trapped inside. As a result, the decedent
drowned.
Bucks County, PA
The estate alleged that the defendant state entities
were negligent in failing to properly design and maintain the road and having notice of the frequency and
severity of the flooding of the road and failing to correct the condition. Against the defendant company
the estate alleged that they negligently designed
and installed a guard rail end treatment that did not
dissipate the energy when the decedent’s vehicle
struck it, thereby causing her vehicle to fly through the
air instead of crashing through the rail and slowing
the vehicle down. The defendants all denied liability
and argued that the collision was caused by the negligence of the decedent who was traveling at an excessive rate of speed. The decedent was single and
survived by her parents.
In this case, the estate of the decedent alleged
that the defendants, departments of
transportation and general services, were
negligent in the design and maintenance of a
road. The estate also claimed that the company
that installed the guard rail was negligent for
failing to properly design and install the guard
rail end treatment. As a result, the decedent was
killed in a single vehicle collision. All defendants
denied liability and claimed the decedent’s speed
was the cause of the accident.
On October 8, 2005, the decedent was traveling
south on Steinsburg Road in Quakertown when she
encountered a flooded section of the road. The decedent’s vehicle hydroplaned and struck the defective guard rail which launched her vehicle air born
Volume 29, Issue 10, September 2011
The defendants settled with the estate for a lump sum
amount of $20,000.
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25
REFERENCE
Estate of Tiffany Weiand by David and Arlene Weiand
vs. Pennsylvania Department of Transportation, Pennsylvania Department of General Services and
Collinson, Inc. Case no. 200708288; Judge C. Theodore Fritsch, Jr., 07-18-11.
Attorney for plaintiff: J. Davy Yockey of Flager &
Yockey in Trevose, PA. Attorneys for defendants:
Alton G. Grube of Commonwealth of Pennsylvania
Attorney General Office in Philadelphia, PA, and
John M. Donahue in Philadelphia, PA.
Supplemental Verdict Digest
MEDICAL MALPRACTICE
$21,600,000 VERDICT - MEDICAL MALPRACTICE - OB/GYN - NURSING - FAILURE TO
MONITOR BOTH HEART RATES OF TWINS DURING DELIVERY - BRAIN DAMAGE TO A
NEWBORN CHILD - CEREBRAL PALSY.
Erie County, PA
In this medical malpractice case, a family sued on
behalf an infant who suffered cerebral palsy after
a botched delivery. The jury delivered a
subsequent landmark $21.6 million verdict
against the hospital. The delivery occurred on
November 13, 2006, when the plaintiff, 26,
presented at the Hamot Medical Center in Erie,
Pennsylvania, for the scheduled induction of
labor. The plaintiff was pregnant with twins, a girl
and a boy. The nurse midwife administered
Cervidil to induce labor. The midwife, defendant
obstetrician and the nursing staff proceeded with
the labor. However, for reasons that formed the
center of the dispute, the staff did not continually
monitor both of the fetal heart rates. A nurse
delivered the first twin, a girl, while the ob/gyn
was getting into position. During the delivery of
the second child, the fetus shifted into a breech
position. The birth of the boy was delayed by
twenty minutes until the obstetrician and midwife
performed an emergency C-section. Thereafter,
the ob/gyn noticed signs of metabolic acidosis in
the infant boy and placed him in the neonatal
ICU, where he suffered a seizure approximately
two hours later. He was later diagnosed with
cerebral palsy brought on by oxygen deprivation.
The parties reached an agreement pre-trial on a
high/low. No pre-trial settlement offer was made by
the defense. The high in this case was $33 million,
comprised of Hamot Medical’s $31 million policy limits and Dr. Townsend’s $2 million limits. The low was
$5.75 million. The jury deliberated for four hours before returning with a verdict for the plaintiff. They
found Hamot, now UPMC Hamot, 100% negligent by
way of the nursing staff’s failure to monitor the infant’s
fetal heart rate and other vital signs. No negligence
was attributed to the co-defendants Dr. Townsend,
M.D., and the midwife nurse.
REFERENCE
Graham vs. Hamot, et al. Case no. 12229-2008;
Judge Ernest J. DiSantis, Jr., 04-20-11.
Attorney for plaintiff: Shanin Specter of Kline Specter
in Philadelphia, PA. Attorney for defendant Hamot
Medical Center: David R. Johnson of Thomson
Rhodes & Cowie in Pittsburgh, PA. Attorney for
defendant Dr. Mark E. Townsend: Shannon Poliziani
of Marshall, Dennehey, Warner, Coleman & Goggin
in Pittsburgh, PA. Attorney for defendant Christine
Hornstein: Steven J. Forry of Marshall, Dennehey,
Warner, Coleman & Goggin in Pittsburgh, PA.
The following digest is a composite of additional significant verdicts reported in full detail in our companion
publications. Copies of the full summary with analysis can be obtained by contacting our Publication Office.
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SUPPLEMENTAL VERDICT DIGEST
$10,500,000 VERDICT - MEDICAL MALPRACTICE - ANESTHESIOLOGY - IMPROPER USE
OF LARYNGEAL MASK AIRWAY RESULTING IN AN UNPROTECTED AIRWAY ASPIRATION OF STOMACH CONTENTS LEADING TO ACUTE RESPIRATORY DISTRESS COMA IN 44-YEAR-OLD FEMALE - NERVE DAMAGE.
New London County, CT
REFERENCE
In this medical malpractice matter, the plaintiff
alleged that the defendant anesthesiologist was
negligent in failing to use due care during the
administration of anesthesia to the plaintiff which
resulted in the plaintiff suffering acute respiratory
distress syndrome and becoming comatose. The
defendant denied that there was any deviation
from acceptable standards of care.
Karla Rosa vs. Anesthesia Associates of New London.
Case no. KNL-CV-08-5006331-S; Judge Emmet
Cosgrove, 05-13-11.
Attorney for plaintiff: Sean K. McElligott of Koskoff
Koskoff & Bieder, P.C. in Bridgeport, CT. Attorney for
defendant: Robert Cooney of Williams Cooney &
Sheehy in Trumbull, CT.
The matter was tried and at the conclusion of the
trial, the jury returned its verdict in favor of the plaintiff
and against the defendant. The plaintiff was awarded
the sum of $10,500,000 in damages.
PRODUCTS LIABILITY
$1,570,000 GROSS VERDICT - PRODUCT LIABILITY - DEFECTIVE DESIGN OF LADDER LADDER RETRACTS DURING USE - FALL TO GROUND - HEAD INJURY - TEN-DAY
COMA - WRONGFUL DEATH - 80% COMPARATIVE NEGLIGENCE FOUND.
Miami-Dade County, FL
This was a products liability action against the
manufacturer of a ladder from which the
decedent fell and sustained a fatal head injury.
The plaintiff alleged that the ladder was
defectively designed in that the side pins did not
lock properly, thereby causing it to retract under
the decedent’s weight. The plaintiff also alleged
that the defendant manufacturer was negligent in
the manner in which it manufactured the ladder.
The defendants in the case also included Home
Depot where the ladder had been purchased. The
defendants maintained that the accident was
caused by the decedent’s own negligence in
failing to properly lock the ladder before climbing
it.
ufacturer 20% negligent and the decedent 80%
comparatively negligent. The plaintiff was awarded
$1,570,000 in damages, which was reduced to a net
award of $314,000. Post-trial motions are currently
pending.
REFERENCE
Coba vs. Tricam Industries, Inc. Case no. 07-29041
CA 21; Judge William Thomas, 08-26-10.
Attorneys for plaintiff: Orlando D. Cabeza and Peter
L. DeMahy of DeMahy, Labrador, Drake, Payne &
Cabeza in Coral Gables, FL. Attorneys for defendant:
Jeffrey A. Mowers of Pyszka, Blackmon, Levy,
Mowers & Kelley in Miami Lakes, FL, and Paul Kaulus
(pro hac vice) in Chicago, IL.
The jury found that the ladder in question was not defective, but found that the defendant manufacturer
was negligent. The jury assessed the defendant man-
$1,500,000 VERDICT - PRODUCTS LIABILITY - FAILURE TO WARN - PLAINTIFF
SNOWMOBILE REVS ENGINE TO CLEAN SPARK PLUGS WHILE LIFTING END OF
VEHICLE - TRACK BREAKS AND STRIKES PLAINTIFF IN LEG - ABOVE-THE-KNEE
AMPUTATION - CASE PREVIOUSLY TRIED AND RESULTED IN AWARDS - DEFENDANT
REJECTS $900,000 ADDITUR AND CASE RETRIED ON ISSUE OF PAIN AND SUFFERING
ONLY.
Morris County, NJ
This case involved a 61-year-old plaintiff who was
visiting a friend in upstate New York for a
weekend of snowmobiling. The plaintiff
contended that the snowmobile was defective for
the failure to warn against the common practice
of cleaning carbon build up on the spark plugs
Volume 29, Issue 10, September 2011
while revving the engine as the back end of the
snowmobile was held up. The plaintiff contended
that as he and another individual were holding up
the back end of the vehicle while the owner
revved the engine with the throttle, the track
broke and was propelled out of the rear and
through the plaintiff’s right leg.
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The jury awarded $1,500,000 for pain and suffering.
27
Attorney for plaintiff: Herbert M. Korn of Law Offices
of Herbert M. Korn in Morristown, NJ.
REFERENCE
Mohr vs. Yamaha Motor Co. Docket no. MRS-L-206807; Judge Robert Brennan, 04-14-11.
MOTOR VEHICLE NEGLIGENCE
$6,000,000 RECOVERY - BUS/PEDESTRIAN COLLISION - PEDESTRIAN STRUCK IN
MIDDLE OF CROSSWALK BY SCHOOL BUS TURNING LEFT FROM BEHIND - PLAINTIFF
DRAGGED 20 FEET BEFORE BUS STOPS WITH WHEEL ON PLAINTIFF - INTENSE
CONSCIOUS PAIN FOR ONE HOUR BEFORE EXTRICATION - BURST THORACIC
FRACTURE - LUMBAR, THORACIC COMPRESSION FRACTURES - THORACIC FUSION SEVERE DEGLOVING INJURY TO LOWER LEG.
Bergen County, NJ
In this action, the femal plaintiff in her mid-20s,
contended that after she had crossed more than
half of the roadway containing one travel lane in
each direction, she was struck by the left side view
mirror of the bus and pulled under the left front
wheel of the bus. The plaintiff contended that as a
result, she suffered a burst fracture in the thoracic
spine, thoracic and lumbar compression fractures,
a severe degloving injury to the lower left leg,
bowel and bladder incontinence that resolved
after some months, and PTSD. The plaintiff has
already undergone some eight major surgeries,
including a fusion in the thoracic area, and the
insertion of a V.A.C. therapy unit to the lower leg,
and contended that she may well require
additional surgery in the future.
The case settled prior to trial for $6,000,000.
REFERENCE
Poplawski vs. Phipps, et al. Docket no. BER-L-3516-09,
02-21-11.
Attorney for plaintiff: Eric D. Katz of Mazie Slater Katz
& Freeman, LLC in Roseland, NJ.
$4,900,000 RECOVERY - MOTOR VEHICLE NEGLIGENCE - AUTO/BICYCLE COLLISION TRACTOR-TRAILER STRIKES BICYCLIST - CATASTROPHIC BRAIN INJURY TO 19-YEAROLD - LIFELONG SUPERVISION REQUIRED.
Miami-Dade County, FL
The plaintiff was a 19-year-old male who was
riding a bicycle across a Perrine, Florida
intersection at 3:19 a.m. in 2006 when he was
struck by a tractor trailer driven by the defendant
truck driver and owned by the defendant trucking
company. The plaintiff alleged that the defendant
truck driver negligently operated the truck and
could have avoided impacting the plaintiff’s
bicycle. The defendants argued that the tractortrailer was proceeding with a green light, within
the legal speed limit, and that the plaintiff
suddenly rode his bicycle into the path of the
oncoming truck. The defendants maintained that
the truck driver was not negligent and could not
have avoided the collision.
The case was settled for a structured settlement valued at $4,900,000 prior to trial.
REFERENCE
Tiger vs. Defendants. Case no. 09-07908; Judge Peter
R. Lopez, 04-01-11.
Attorney for plaintiff: Joseph Slama of Krupnick,
Campbell, Malone, Buser, Slama, Hancock, Liberman
& McKee in Fort Lauderdale, FL. Attorney for plaintiff:
Frank Toral of Toral & Associate in Fort Lauderdale,
FL.
$1,100,000 RECOVERY - MOTOR VEHICLE NEGLIGENCE - AUTO/PEDESTRIAN
COLLISION - PLAINTIFF STANDING AT CENTER LINE WAITING FOR RIGHT-SIDE
TRAFFIC TO PASS IS STRUCK BY DEFENDANT FROM LEFT - LEFT KNEE FRACTURE SURGERY - LARGE SCARRING BELOW KNEE - KNEE SWELLING AND CALF ATROPHY
NOTED SHORTLY BEFORE TRIAL - SPLEEN LACERATION - RIB FRACTURE.
Queens County, NY
The plaintiff pedestrian, age 25, contended that
after she had walked halfway across the
uncontrolled intersection, and near the area
where the crosswalk would have been present, if
painted, and as she was standing on the double
yellow line waiting for vehicles traveling from her
right to pass, she was struck by the defendant
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SUPPLEMENTAL VERDICT DIGEST
who was approached from her left. The plaintiff
suffered fractures to the left tibial plateau and
proximal fibular shaft and required an open
reduction and internal fixation. The plaintiff
contended that the large scar below the knee is
permanent. The plaintiff also suffered a lacerated
spleen, fractured ribs, bilateral occipital condyle
fractures and an avulsion injury at the left alar
ligament. These injuries resolved without surgery.
REFERENCE
Steward vs. Levy. Index no. 27669/10; Judge Howard
Beldock (mediator), 06-11-11.
Attorney for plaintiff: Ann Ball of A Ball PC in
Commack, NY.
The case settled prior to trial for $1,100,000.
$900,000 VERDICT - MOTOR VEHICLE NEGLIGENCE - SIDESWIPE COLLISION NEGLIGENT LANE CHANGE - ROLL-OFF TRUCK/TRACTOR-TRAILER COLLISION CERVICAL DISC HERNIATIONS WITH FUSION SURGERY - LUMBAR HERNIATION LUMBAR LAMINECTOMY PERFORMED - TOTAL DISABILITY FROM EMPLOYMENT
CLAIMED.
Philadelphia County, PA
The male plaintiff in his late 30s was driving a
roll-off truck (used to transport dumpsters) on the
Blue Route when the collision giving rise to his
action occurred. The plaintiff alleged that a
tractor-trailer, driven by the defendant truck
driver and owned by the defendant transportation
company, negligently changed lanes and collided
with his truck. The defendants took the position
that it was the plaintiff who negligently changed
lanes and caused the accident. The defense also
contended that the impact did not cause the
injuries alleged by the plaintiff.
After a six-day trial, the jury found the defendant
100% negligent and awarded the plaintiff $900,000
in damages. The case is currently on appeal.
REFERENCE
Thompson vs. Lau, et al. Case no. 09-03-03522;
Judge Nitza I. Quinones Alejandro, 12-10-10.
Attorney for plaintiff: Bruce L. Neff of Neff &
Associates in Philadelphia, PA.
PREMISES LIABILITY
$2,000,000 TOTAL RECOVERY - PREMISES LIABILITY - FALL DOWN - FAILURE OF
DEFENDANTS TO ADEQUATELY REMOVE SNOW AND ICE - DECEDENT WITH CARDIAC
CONDITION SLIPS AND FALLS - SUBDURAL HEMATOMA - ALLEGEDLY SUFFERS
“LOCKED IN SYNDROME” UNTIL DEATH TWO YEARS LATER - PORTEE CLAIM.
U.S. District Court, Newark District of NJ
In this case, the plaintiff contended that the
defendant Postal Service negligently failed to
adequately attend to icy conditions stemming
from alternate melting and freezing temperatures
that occurred in the three-day period since the
last snow event. The plaintiff also contended that
the co-defendant automobile dealership, situated
next to and uphill from the post office, negligently
failed to clear snow and ice from and around of
vehicles it kept parked on the sidewalk. The
plaintiff maintained that the 78-year-old
decedent, who was taking Coumadin, slipped and
fell, suffering a closed head trauma and subdural
hematoma. The plaintiffs also included the
decedent’s son, approximately 40, who was sitting
in his father’s car and saw the incident, and who
made an emotional distress claim under Portee vs.
Jafee.
Volume 29, Issue 10, September 2011
The case settled in 2010 for $1,500,000 from the
Postal Service and $500,000 from the co-defendant.
Magistrate Judge Patty Shwartz approved the allocation of the proceeds in February 2011 as follows:
$1,064,546 to the estate, $25,000 each to the decedent’s three children, and $25,000 on the Portee
claim. Plaintiff’s counsel relates that another $260,581
was used to satisfy liens that were reduced from approximately $1,000,000.
REFERENCE
Fogelson vs. U.S.A., et al. Docket no. 2:07-CV-01016ksh-ps; Judge Pamela Nadell, Esq. (mediator), 02-1011.
Attorney for plaintiff: Francis M. Smith of FM Smith,
PC in Mountainside, NJ.
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SUPPLEMENTAL VERDICT DIGEST
29
$1,480,000 VERDICT - PREMISES LIABILITY - FALL DOWN - PLAINTIFF EXITS
PASSENGER SIDE OF CAR IN CAR WASH - SLIP AND FALL ON SOAPY WATER CLOSED HEAD TRAUMA - MILD TBI - COGNITIVE DEFICITS - TEAR OF DOMINANT
ROTATOR CUFF - ARTHROSCOPIC SURGERY - CERVICAL HERNIATION - INDICATION
FOR SURGERY.
Kings County, NY
This case involved a plaintiff, in her mid 50s, who
was a passenger in a car that was brought to the
defendant’s car wash and who slipped and fell as
she was exiting the car. The plaintiff contended
that although the defendant should be required to
have the area for individuals exiting vehicles
delineated as behind the “zipper drain” that is
required to separate solvents from water before it
enters the water system, it did not do so because
of lack of space and that it should have placed
safeguards, such as rubber mats and/or warning
signs, immediately outside of the point patrons
would be exiting vehicles. The plaintiff maintained
that as she exited, she slipped and fell. The
plaintiff contended that she suffered a closed
head injury that caused a mild TBI manifesting in
headaches and extensive difficulties with memory
and concentration. The plaintiff further contended
that she suffered a rotator cuff tear to the right,
dominant shoulder that required arthroscopic
surgery and a cervical herniation for which
surgery is indicated.
The jury found the defendant 100% negligent and
awarded $1,480,000.
REFERENCE
Rogers vs. Hi-Tek United Corp. Index no. 014717/08;
Judge Kenneth P. Sherman, 02-04-11.
Attorney for plaintiff: Herbert Rodriguez, Jr. of
Schwartz Goldstone & Campisi, LLP in New York, NY.
$1,276,000 RECOVERY - PREMISES LIABILITY - HAZARDOUS PREMISES - ONE TON
LOAD OF PIPE FALLS ON PLAINTIFF FROM FORKLIFT - SEVERE CRUSH INJURIES AMPUTATION.
Bexar County, TX
In this action for active negligence and premises
liability, the plaintiff alleged that the defendants’
combined negligence caused him to incur severe
crush injuries necessitating amputation. The
defendants generally denied the allegations and
claimed that the plaintiff was guilty of contributory
negligence.
Ultimately, this matter settled at mediation with a
$1,276,000 recovery for the plaintiff.
REFERENCE
Edward Schmidtka vs. DPT Laboratories, Ltd.,
Greatwide Cheetah Transportation, LLC and Michael
McCurry. Case no. 2009-CI-13588; Judge Karen
Pozza, 01-28-11.
Attorneys for plaintiff Edward Schmidtka: Rudy A.
Garza and Stephen F. Lazor of Garza & Lazor, P.C. in
San Antonio, TX. Attorneys for defendant Greatwide
Cheetah Transportation, LLC and Michael McCurry:
Michael B. Langford (Pro Hac Vice) of Scopelitis,
Garvin, Light, Hanson & Feary, P.C. in Indianapolis,
IN, and Darrell F. Smith of Ball & Weed in San
Antonio, TX. Attorney for defendant DPT
Laboratories, Ltd., Defendant and Third-Party
Plaintiff: Jennifer Gibbons-Durbin of Allen, Stein &
Durbin, P.C. in San Antonio, TX. Attorney for
defendant DCI, Inc. (Third-Party Defendant): Mark S.
Strandmo of Brock Person Guerra Reyna P.C. in San
Antonio, TX. Attorney for defendant Gilbert
Industries, Inc. d/b/a GS Stainless (Third Party
Defendant): Sean M. Crowley of Thompson Coe
Cousins & Irons LLP in Austin, TX.
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30
SUPPLEMENTAL VERDICT DIGEST
ADDITIONAL VERDICTS OF INTEREST
Employment Law
$506,000 VERDICT - GENDER DISCRIMINATION - RETALIATORY DISCHARGE PLAINTIFFS CLAIM THAT DEFENDANT SUPERVISOR AND EMPLOYER DISCRIMINATED
AGAINST THE PLAINTIFFS AND RETALIATED AGAINST THEM FOR COMPLAINING
ABOUT THE DISCRIMINATION - FAILURE TO PROMOTE QUALIFIED PLAINTIFF OVER
LESS QUALIFIED MALE CANDIDATE - DEMOTION - ASSIGNMENT OF DUTIES LESS
THAN THOSE ASSIGNED TO MALE EMPLOYEES - FAILURE TO GIVE SUPERVISORY
RESPONSIBILITIES.
Suffolk County, MA
The plaintiffs, who worked for the defendant
district court probation office, one as an assistant
chief probation officer and the other as a
probation officer, contended that the defendants,
a chief probation officer and the court for which
he worked, discriminated against the plaintiffs on
the basis of gender and race. The plaintiffs and
three other female employees had previously filed
a written complaint against the defendant chief
and the probation office for racial and gender
discrimination and retaliation. A six month
investigation into the charges by the trial court’s
Affirmative Action/Equal Opportunity Office
resulted in a draft report substantially admitting
the allegations made by the plaintiffs.
The jury found no discrimination against the first plaintiff, but did find retaliation against her and awarded
her $6,000 in damages, as well as $500,000 in punitive damages. No discrimination or retaliation was
found against the second plaintiff and the jury
awarded her no damages.
REFERENCE
Brown, et al. vs. O’Brien, et al. Case no. SUCV200703552, 02-09-11.
Attorney for plaintiff: Beth R. Myers of Rogers,
Powers & Schwartz LLP in Boston, MA.
Fraud
$7,120,000 VERDICT - FRAUD - SHIPPING COMPANY IS SUED BY SHIPPING PARTNER
FOR FRAUDULENT INDUCEMENT.
Dallas County, TX
This multi-million dollar case saw the successful
suit of a global shipping firm by one of its
resellers. The reseller received over $7 million in
a verdict for fraudulent inducement and theft of
trade secrets. The jury additionally rejected the
defendant’s $28 million in counterclaims.
Worldwide Express Operations is a domestic
reseller of shipping services based in Dallas.
Worldwide Express, the plaintiff in this case, had
been in a nine-year contract since 1999 with the
defendant, DHL Express, acting as a sales force
for the defendant shipping company. The contract
was amended in the fall of 2008 to add an
additional two years to that contract. However,
the contract also involved the addition of a
termination clause. Said clause would allow DHL
to terminate the contract with only 90 days notice.
On November 10, 2008, less than 30 days after
the signing, DHL announced that it was
terminating its domestic shipping service and its
contract with Worldwide Express.
Worldwide Express filed suit in the 192nd District Court
of Dallas County for fraudulent inducement, naming
DHL as the defendant. DHL was accused of defrauding Worldwide Express by way of inducing them to
sign a contract for services they would have no fur-
Volume 29, Issue 10, September 2011
ther use for. Worldwide Express further accused DHL of
theft of trade secrets, specifically through solicitation
the plaintiff’s international customers.
On June 2, 2011, after nine trial days and a day and
a-half of deliberation, the jury returned a verdict for
the plaintiff, finding that Worldwide Express had been
induced to amend their contract by way of fraud.
The jury awarded $5.1 million for past and future lost
profits, as well as $2.02 million in damages for DHL’s
misappropriation of trade secrets. The jury further rejected DHL’s request for $28 million in damages for
breach of payment guarantee.
REFERENCE
Worldwide Express Operations LLC, et al. vs. DHL Express (USA) Inc. Case no. DC-08-15314; Judge Craig
Smith, 06-02-11.
Attorney for plaintiff: Geoffrey S. Harper, Steve
Stodghill, Timothy Devlin, Scott C. Thomas, and John
C.C. Sanders of Fish & Richardson in Dallas, TX.
Attorney for plaintiff DHL Express (USA) Inc.: Michael
H. Collins of Locke Lord Bissell & Liddell LLP in
Dallas, TX. Attorney for defendant Worldwide
Express Operations LLC: Tom Melsheimer of Fish &
Richardson in Dallas, TX.
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SUPPLEMENTAL VERDICT DIGEST
31
$500,000 COMBINED VERDICT - FRAUD - INTENTIONAL INTERFERENCE WITH
CONTRACT BY INSURANCE COMPANY - BREACH OF GOOD FAITH AND FAIR
DEALING - PRODUCTION OF BACK-DATED UM/UIM WAIVER FORMS - LOSS OF USE
OF INSURANCE FUNDS - EMOTIONAL DISTRESS TO TWO POLICE OFFICERS.
Philadelphia County, PA
This case involved allegations that fraud was
committed by the defendants, Bristol Township, its
insurance broker and several individual insurance
agents, involved in issuing the township’s
automobile insurance coverage. The plaintiffs
were two Bristol Township police officers who
were injured in the line of duty by an uninsured
driver. The plaintiff alleged that the defendants
committed fraud, as well as intentional
interference with contract and breach of their duty
of good faith and fair dealing by back-dating the
township’s UM/UIM waiver forms in an attempt to
prevent the plaintiffs from recovering uninsured
motorist benefits. The plaintiffs’ uninsured
motorist claims were settled after it was
discovered that the waiver forms had been backdated and were, therefore, invalid. The plaintiffs
sought economic damages for an 11 month delay
allegedly caused by the defendants’ fraud. The
plaintiff also sought compensatory damages for
emotional distress and punitive damages based
on the defendants’ actions. The defendants
argued that Bristol Township did not want UM/
UIM coverage and did not pay for such coverage.
After a trial of almost three weeks, the jury found
fraud, intentional interference with contractual relations and breach of the duty of good faith and fair
dealing against the insurance broker and two of its
employees. The jury awarded $250,000 to each
plaintiff for a total combined verdict of $500,000. The
award included $55,000 in economic damages and
$195,000 in emotional distress damages to each
plaintiff. The court dismissed the plaintiffs’ claim for
punitive damages. Post-trial motions are pending.
REFERENCE
Egan vs. USI MidAtlantic, Inc. Case no. 060703444;
Judge Gregory E. Smith, 03-16-11.
Attorneys for plaintiff: Mark W. Tanner and Peter M.
Newman of Feldman Shepherd, Wohlgelernter,
Tanner, Weinstock & Dodig, LLP, in Philadelphia, PA.
Attorneys for plaintiff: Gerald A. McHugh, Jr. and
Daniel Bencivenga of Raynes McCarty in
Philadelphia, PA.
Jones Act
$1,650,000 VERDICT - JONES ACT - ADMIRALTY - FAILURE TO MAINTAIN FISHING
VESSEL IN A SEAWORTHY CONDITION - TRIP AND FALL ON OIL - TORN ROTATOR
CUFF - RUPTURED LEFT BICEP TENDON.
U.S. District Court, District of MA
REFERENCE
In this admiralty matter, the plaintiff brought suit
under the Jones Act for injuries he sustained
when he slipped and fell as a result of oil on the
deck of the defendant’s boat. The defendant
denied the incident and disputed any liability to
the plaintiff.
James B. Crook vs. Warren Alexander d/b/a Hawk
Scallop Company, Inc. Case no. 1:09-CV-10682;
Judge Rya W. Zobel, 01-28-11.
Attorneys for plaintiff: Carolyn Latti and David
Anderson of Latti & Anderson in Boston, MA.
The matter was tried and the jury deliberated for a little over three hours before returning its verdict in favor
of the plaintiff and against the defendant. The jury
awarded the plaintiff the sum of $1,650,000 in
damages.
Libel
$1,100,000 VERDICT - DEFAMATION - LIBEL - SON OF A TEXAS DEPUTY SUES
NEWSPAPER AFTER ARTICLE ACCUSES HIM OF BENEFITING FROM CORRUPTION DAMAGE TO PLAINTIFF’S REPUTATION.
Fort Bend County, TX
In this case, the plaintiff, 27, the son of a Chief
Deputy of the Fort Bend County Sheriff’s Office,
sued a local newspaper and one of its reporters
for defamation. The defendants denied that the
article was false and defamatory; they contended
that the article concentrated on public figures
rather than the plaintiff, and therefore did not
damage his reputation.
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SUPPLEMENTAL VERDICT DIGEST
After eight days of trial, the jury returned a verdict for
the plaintiff, finding the article as a whole to be false
and defamatory as to the plaintiff, as well as certain
individual (but unspecified) statements within the article. The jury awarded $30,000 in damages to reputation, $20,000 in mental anguish damages, and
$1,030,000 in punitive damages ($30,000 against the
reporter, and $1,000,000 against the West Fort Bend
Star on a theory of “imputed malice”).
REFERENCE
Wade Brady vs. LeaAnne Klentzman and Carter Publications d/b/a The West Fort Bend Star. Case no. 03CV-129531; Judge Thomas R. Culver III, 05-06-11.
Attorney for plaintiff Wade Brady: Kinan H. Romman
of Ahmad, Zavitsanos & Anaipakos, PC in Houston,
TX. Attorney for defendant: John K. Edwards of
Jackson Walker LLP in Houston, TX.
Negligent Supervision
$1,750,000 RECOVERY - NEGLIGENT SUPERVISION - NEGLIGENT RETENTION OF
CONDOMINIUM COMPLEX EMPLOYEES - PLAINTIFF ATTACKED WITH ACID - FACIAL
BURNS AND DISFIGUREMENT - BLINDNESS IN ONE EYE.
Broward County, FL
This case involved a horrific and hateful acid
attack which left the female plaintiff disfigured
and blinded in one eye. The attacker was
sentenced to ten years in prison for aggravated
battery and was not a party to the civil action. The
plaintiff’s case hinged on the culpability of the
defendant homeowner association and property
management company for alleged negligent
supervision and retention of its employees. There
was alarming evidence that the plaintiff’s
husband, her assailant and their supervisor
routinely engaged in drinking sessions at work
and that extramarital sexual activity occurring at
the workplace was accepted, if not facilitated. The
defendants maintained that the attack upon the
plaintiff was not foreseeable and that it had acted
appropriately in terminating the attacker prior to
the incident.
There was an issue as to whether the plaintiff’s former
husband would have been listed as a Fabre defendant on the verdict form, as the husband was the defendant’s employee. In the end, the case was of
such a volatile nature and the plaintiff’s injuries so
gruesome, that a $1.75 million settlement was
reached with a minimum of publicity in order to
avoid trial.
REFERENCE
Lambert vs. Defendants. Case no. 04-009433; Judge
David Krathen, 10-20-10.
Attorneys for plaintiff: Lou Battista and Yeemee Chan
of Toral, Garcia & Battista in Fort Lauderdale, FL.
Transit Authority Negligence
$10,006,477 GROSS VERDICT REDUCED BY 40% COMPARATIVE NEGLIGENCE TRANSIT AUTHORITY LIABILITY - FAILURE OF TRAIN OPERATOR TO TIMELY REACT TO
PATRON WHO FELL ON TRACKS OF ELEVATED SUBWAY IN EARLY MORNING HOURS
- AMPUTATION OF THREE MIDDLE FINGERS ON DOMINANT HAND - ABOVE-THEKNEE AMPUTATION OF LEFT LEG - BELOW-THE-KNEE AMPUTATION OF RIGHT LEG.
Bronx County, NY
In this action, the 51-year-old plaintiff contended
that the defendant’s train operator negligently
failed to make adequate observations and
activate the emergency brake when he had fallen
onto the tracks some 420 feet from the point the
train entered the station. The plaintiff contended
that as a result, he was run over by the train that
came to rest as he was under the third car. The
plaintiff contended that he suffered the
amputation of the middle three fingers of the
right, dominant hand, and severe bilateral crush
injuries to the legs, ultimately necessitating the
above-the-knee amputation of the left leg and the
below-the-knee amputation of the right leg.
Volume 29, Issue 10, September 2011
The jury found the defendant 60% negligent, the
plaintiff 40% comparatively negligent and rendered
a gross award of $10,006,477.
REFERENCE
Simmons vs. MTA and New York City Transit Authority.
Index no. 309291/08; Judge Diane Lebedeff, 05-2011.
Attorneys for plaintiff: Alan Shapey, Gerard Lucciola
and Derek Sells of Lipsig Shapey Manus &
Moverman, PC in New York, NY.
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