1. society
2. crime
3. property crime
4. fraud

SUMMARIES
WITH TRIAL
ANALYSIS
$3,625,000 TOTAL VERDICT – Civil Rights – Police officer halts motorist via stopping at angle in front
while plaintiff looking for parking spot – Plaintiff is assaulted, falsely charged with assault on a police officer and
resisting arrest – Defendant city refuses to indemnify/defend officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
$2,018,000 TOTAL VERDICT – Racial Discrimination – Hispanic brothers contend that they are subject to
ethnically hostile environment – Retaliatory discharges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Volume 32, Issue 4
September 2011
A monthly review of New
Jersey State and Federal
Civil Jury Verdicts with
professional analysis and
commentary.
The New Jersey cases
summarized in detail
herein are obtained from
an ongoing monthly survey
of the State and Federal
courts in the State of New
Jersey.
$1,895,000 COMBINED RECOVERY – Dram Shop – Sale of alcohol to underage driver – Driver
crashes, striking pole – Pole pierces rear passenger’s face – Severe jaw fractures – Nasal fracture – Multiple procedures
– Permanent facial asymmetry – Mild TBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
$1,450,000 RECOVERY – Motor Vehicle Negligence – Auto/Pedestrian Collision – Decedent dog walker is
struck by limousine after crossing half of uncontrolled intersection – Severe head injury – Organ donor decedent . . . . 6
$825,000 RECOVERY – Motor Vehicle Negligence – Rear End Collision – 80-year-old driver is struck in rear
by defendant driver under influence of drugs who flees scene – Decedent’s car propelled into bridge abutment – 20
minutes of conscious pain and suffering before fatal cardiac arrest – Green/Bitner damages. . . . . . . . . . . . . . . . 7
$1,025,000 RECOVERY – Sexual Assault – Five former altar boys settle child abuse claims pre-litigation
with Trenton Diocese – Sexual assault by late ex-priest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
$1,000,000 VERDICT – Municipal Liability – Failure of defendant police officer to obey stop sign – Plaintiff
swerves, loses control, striking opposite wall – Bilateral nasal plate fractures – Inability to undergo indicated surgery . . 8
$900,000 GROSS VERDICT REDUCED BY 10% – Premises Liability – Negligent Maintenance
– Motorcyclist hits 1x1' sinkhole from water company’s negligent temporary patch – Crash – Closed head trauma – Mild
TBI – Reactive depression – Laceration above eye necessitating sutures – Soft tissue cervical injuries. . . . . . . . . . . 9
VERDICTS BY
CATEGORY
Professional Malpractice (1)
Parking Lot Collision . . . . . . 15
Surgery. . . . . . . . . . . . . 10
Rear End Collision . . . . . . . 16
Civil Rights (1). . . . . . . . . . . . . 11
Single Vehicle Collision . . . . . 19
Dram Shop (1) . . . . . . . . . . . . 12
Municipal Liability (3) . . . . . . . . 19
Employer’s Liability (1) . . . . . . . . 12
Negligent Security (1) . . . . . . . . 21
Landlord’s Negligence (1) . . . . . . 13
Premises Liability (4)
Motor Vehicle Negligence (14)
Auto/Pedestrian Collision . . . . 13
Broadside Collision . . . . . . . 14
Left Turn Collision . . . . . . . 14
Fall Down . . . . . . . . . . . 21
Hazardous Premises . . . . . . 22
Negligent Maintenance . . . . . 23
Supplemental Verdict Digest . . . . 24
Multiple Vehicle Collision . . . . 15
Copyright 2011 Jury Verdict Review Publications Inc.
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Summaries with Trial Analysis
$3,625,000 TOTAL VERDICT – CIVIL RIGHTS – POLICE OFFICER HALTS MOTORIST VIA
STOPPING AT ANGLE IN FRONT WHILE PLAINTIFF LOOKING FOR PARKING SPOT –
PLAINTIFF IS ASSAULTED, FALSELY CHARGED WITH ASSAULT ON A POLICE OFFICER
AND RESISTING ARREST – DEFENDANT CITY REFUSES TO INDEMNIFY/DEFEND
OFFICER.
U.S. District Court, District of Newark, NJ
This action involved a plaintiff who contended that
the individual defendant officer subjected her to a
false arrest and used excessive force after the
individual defendant, who was en route to
testifying in municipal court and in his own car,
pulled in front of the plaintiff at an angle and
blocked her movement as the plaintiff was
looking for a parking space on a one-way
roadway in Newark. The plaintiff, who was
charged with assaulting an officer and resisting
arrest, also brought a malicious prosecution
count. The plaintiff further contended that the
defendant city acted with deliberate indifference
to citizens’ rights by permitting the individual
officer to continue acting in that capacity despite
numerous prior disciplinary infractions and three
prior findings of Administrative Law Judges that
the individual officer lacked credibility. The city,
who did not dispute the plaintiff’s description of
the stop and arrest on the day in question, denied
that it acted with deliberate indifference and
contended that it appropriately implemented a
program of “progressive discipline” that was
promulgated by the State, and which involved
more severe sanctions with additional prior
infractions, and that in the absence of a finding of
deliberate indifference, it could not be held liable.
The plaintiff related that as she was looking for a parking spot on a busy one-way roadway, she found one
and stopped to parallel park when the individual defendant, operating his own car, pulled in front of her
at an angle. The plaintiff contended that she became very frightened because she did not know the
individual, who was wearing a coat over his uniform,
was a police officer. The plaintiff contended that the
individual defendant commenced yelling at her and
when he told her he had a badge on, she asked him
to call for back-up. The plaintiff maintained that she
then attempted to place her car in park, but that it
rolled a short distance. The plaintiff contended that
the individual officer then began striking her through
her open window and cursing at her.
The individual officer placed the plaintiff under arrest
for assaulting an officer and resisting arrest. The plaintiff maintained that she was kept in a jail cell for approximately eight hours until she was released on bail,
and that during this time, the individual officer and
other officers, verbally humiliated her by taunting her.
The criminal charges against the plaintiff were downgraded to simple assault to be heard in Municipal
Court. The plaintiff contended that she responded to
multiple calls to court only to have the case not
heard. The criminal charges were dismissed approximately two years after the incident on speedy trial
grounds. The plaintiff introduced evidence of approximately $30,000 in bills from her attorney in the
criminal case.
The plaintiff also charged the individual officer with
simple assault. The plaintiff maintained that although
she vigilantly pursued the case and appeared at
court when requested, including traveling to court
through a snow storm, the case was repeatedly adjourned, until ultimately, the officer was convicted of
simple assault in Municipal Court approximately two
years after the incident occurred.
The plaintiff presented a police procedures expert
who had been involved in promulgating the progressive disciplinary system, rules of police conduct and
internal affairs issues, with the Attorney General’s office. The expert maintained that the system constituted a guideline rather than a strict policy that must
be followed in each and every situation. The expert
contended that in view of a history of numerous prior
administrative charges, and the history that three Administrative Law Judges hearing appeals from board
rulings, had made findings that the individual officer
lacked credibility, the City never should have permitted him to remain on duty and interact with the public. The plaintiff maintained that the City’s permitting
the individual officer to continue in this role
evidenced the requisite deliberate indifference.
The plaintiff did not suffer long-standing physical injuries. She maintained that the emotional consequences of the defendants’ actions were very
significant. The plaintiff maintained that the lengthy
period and numerous court appearances that were
required increased the emotional consequences.
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The plaintiff’s history reflected that shortly after emigrating to this country
from her native Peru, the plaintiff took a one-year course at Rutgers to
become more proficient with English. The plaintiff then enrolled in NJIT
and became an engineer after four years. The plaintiff contended that
she greatly wished to go to work for either NASA or a large defense contractor. The plaintiff maintained, however, that she believed that the
charges would interfere with her ability to obtain the required security
clearance, that if she applied and was turned down for this reason, such
rejection would constitute an additional negative blot on her record, and
that she was afraid to apply for such jobs. The plaintiff obtained a job
that did not require such security clearance. The plaintiff made no income claims and argued that the jury should consider this issue on pain
and suffering and the loss of enjoyment of life.
The jury found that the individual officer had used excessive force, arrested her without probable cause and further found that the officer maliciously initiated the prosecution of the plaintiff. The jury also found that
the plaintiff was deprived of her rights as a result of an official policy or
custom of the City of Newark. The jury then awarded compensatory
damages of $2,700,000 to the plaintiff and $75,000 to her husband. The
jury also found that punitive damages against the individual defendant
were warranted and assessed $850,000 in punitive damages.
REFERENCE
Plaintiff’s police procedures expert: Wayne S. Fisher, PhD from Newark,
NJ.
Lesende vs. Borrero and City of Newark. Docket no. 06-4967(drd); Judge
Dickinson R. Debevoise, 06-15-11.
Attorney for plaintiff: Robert D. Kobin of Nusbaum Stein Goldstein
Bronstein & Kron in Succasunna, NJ.
COMMENTARY
The defendant city did not dispute the manner in which the arrest and prosecution unfolded,
and the City argued that in view of the fact that it had responded to prior infractions against the
individual defendant by subjecting him to “progressive discipline,” it was clear that it had not
acted with the requisite “deliberate indifference” to render it liable under the Civil Rights statute. The plaintiff, who overcame this defense position, presented a police procedures expert
who was involved in the promulgation of such progressive discipline concepts that were incorporated into the civil service law, and who emphasized that the use of such a tactic should not be
automatic, and that if an officer’s behavior, or his or her pattern of behavior is sufficiently severe, it is essential that the public entity take appropriate steps to insulate the public.
In this regard, the plaintiff stressed that the officer’s history included the findings of Administrative Law Judges in three separate cases that the officer was not credible. Additionally, the
plaintiff emphasized that in another prior case, the officer was found to have improperly accompanied a friend who was a bounty hunter into another jurisdiction without advising the local police, creating additional hazards. Finally, it should be noted that punitive damages could
not be assessed against the public entity and that such punitive award was rendered against the
individual officer only.
$2,018,000 TOTAL VERDICT – RACIAL
DISCRIMINATION – HISPANIC BROTHERS CONTEND
THAT THEY ARE SUBJECT TO ETHNICALLY HOSTILE
ENVIRONMENT – RETALIATORY DISCHARGES.
Hudson County, NJ
This NJ LAD case involved two executives of a company that
primarily provided services, including janitorial and security
services, to various high rise buildings. The plaintiffs are Hispanic
brothers and included a 46-year-old regional vice president and a
45-year-old portfolio manager. The plaintiffs maintained that
during their several year tenure with the company, they performed
well, had obtained raises and favorable evaluations. After the
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4
individual defendant became their direct
supervisor, they were subjected to frequent
comments regarding the heritage, creating a
hostile work environment. The plaintiffs further
maintained that they were terminated shortly
after complaining about the alleged harassment.
The plaintiffs maintained that shortly after the individual defendant became their supervisor, they were
subjected to numerous comments regarding their
heritage, which although in isolation, were felt to be
moderately offensive, were so frequent as to become pervasive. The plaintiffs contended that not
only were such comments made by the individual
defendant, but that employees that reported to him
also made such comments. The plaintiffs maintained
that on one occasion, a human resources executive
squeezed between the brothers and announced that
she was a “taco sandwich.”
The plaintiffs presented the subpoenaed testimony of
two former employees who supported their contentions regarding the frequent remarks. The plaintiffs argued to the jury, who was aware that the witnesses
appeared subject to subpoenas, that the witnesses
were reluctant to testify, and the plaintiffs argued that
such a factor rendered their testimony more credible.
The plaintiffs further maintained that approximately
one week after making complaints to in-house counsel, the portfolio manager was terminated and that
the co-plaintiff was fired approximately three weeks
thereafter.
The plaintiff regional vice president further contended
that the defendant falsely let it be known that it was
believed that he had solicited a bribe from one of
the contractors. The plaintiffs maintained that although the other plaintiff was able to obtain another
job at comparable compensation shortly after the
termination, this plaintiff has not been has been unable to return to a position of comparable pay or
benefits
The defendant denied that the plaintiffs were subjected to a hostile work environment or were terminated in retaliation for their complaints. The
defendant contended that the plaintiffs were terminated because of poor performance. The defendant
maintained that the portfolio manager had, among
his failings, difficulties managing employees. This
plaintiff countered that he had obtained a promotion
some six months earlier and a raise approximately
three weeks before the termination, denying that this
position should be accepted.
The defendant countered that the raise was already
in the pipeline when the individual defendant had the
opportunity to better observe this plaintiff’s work and
that this factor, rather than merit, accounted for the
raise being finalized. The plaintiff denied that this position should be accepted, and contended that there
was an absence of supporting documentation in this
plaintiff’s personnel file.
Volume 32, Issue 4, September 2011
SUMMARIES WITH TRIAL ANALYSIS
The defendant further contended that the regional
vice president had, in actuality, solicited a kick-back
from one of its contractors. The defendant presented
a witness who supported this position. The plaintiff
countered that the witness, a prior employee of the
contractor, could only testify that he observed a discussion about alleged kickbacks between this plaintiff
and his supervisor. The plaintiff maintained that the
jury should consider that the defendant could have
presented this supervisor in the employ of the contractor and that it failed to do so. The plaintiff further
established that the defendant was contemplating
purchasing the contractor and that such a deal was
“on its radar.” This plaintiff argued that such a factor
should further reduce the defense credibility.
The plaintiffs both contended that they suffered extensive emotional distress as a result of the discrimination. The plaintiffs maintained that the fact that
they were the only Hispanic executives in the large
company and had a good working relationship with
co-employees until the harassment commenced,
heightened the emotional distress. The regional vicepresident, who maintained that he was subjected to
false rumors in the industry that he had solicited a
kick-back from a contractor, has been unable to obtain another position. The co-plaintiff found other
suitable work shortly after the termination.
The jury found that the plaintiffs were subjected to a
hostile work environment and were the victims of retaliatory discharges. They then awarded $1,832,500
compensatory and $52,500 punitive damages to the
regional vice president. The compensatory award
was allocated as follows: $800,000 for emotional
harm, $632,000 for past lost earnings and $400,000
for future lost earnings. They also awarded $750,000
compensatory and $35,500 punitive damages to the
plaintiff portfolio manager. The compensatory award
to this plaintiff was allocated as follows: $600,000 for
emotional distress, $150,000 for past lost earnings
and $0 for future lost earnings. The jury also found
that the individual defendant was responsible for
$2,500 of each of the punitive awards. Post-trial motions, including the plaintiffs’ motions for attorney’s
fees, are pending.
REFERENCE
Cuevas vs. Omitted. Docket no. HUD-L-2728-09;
Judge Esther Suarez, 08-02-11.
Attorney for plaintiff portfolio manager: John J.
Piserchia of Law Offices of John J. Piserchia in
Clifton, NJ. Attorney for plaintiff regional vice
president: Darren J. Del Sardo of DelSardo &
Montanari, LLC in Woodland Park, NJ.
COMMENTARY
The defendant had denied that the plaintiffs’ claims regarding the
hostile work environment or retaliatory discharges should be accepted, and maintained that the plaintiffs were terminated for poor
performance. The plaintiffs effectively undermined the defendant’s
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case by arguing that the defendant could not point to documentation
in the plaintiffs’ personnel files that lent significant support to the
defense position.
The regional vice president, who claimed that false communications
regarding his allegedly requesting kick-backs from a contractor were
made, and that as a result, he has been unable to obtain suitable
work, countered the defense position by establishing that the defendant was contemplating purchasing the business of this contractor, ar-
5
guing that the testimony of the former employee of this company that
supported the defendant’s claims, should be rejected on the issue of
bias. Finally, the plaintiff also argued on this issue that the jury
should take into account that the defendant could have presented the
individual who supervised the former employee of the contractor who
testified, but that it failed to do so.
$1,895,000 COMBINED RECOVERY – DRAM SHOP – SALE OF TWO BOTTLES OF
SCHNAPPS TO UNDERAGE DRIVER – DRIVER AND PASSENGERS CONSUME ALCOHOL
IN PARKING LOT OF NON-PARTY APARTMENT BUILDING – DRIVER CRASHES,
STRIKING POLE – POLE PIERCES REAR PASSENGER’S FACE – SEVERE JAW FRACTURES
– NASAL FRACTURE – MULTIPLE PROCEDURES – PERMANENT FACIAL ASYMMETRY –
MILD TBI.
Bergen County, NJ
This action involved a then 18-year-old rear seat
passenger in a car in which the driver lost control,
crashing through a wooden fence and striking an
adjacent pole. The plaintiff contended that slightly
more than one hour earlier, the defendant liquor
store’s clerk sold two bottles of 85 proof schnapps
to the 18-year-old driver and his 17-year-old
companion, neither of whom had valid
identification. The plaintiff maintained that after
purchasing the alcohol, the defendant driver
parked in the non-party apartment building and
the five passengers consumed all of one bottle
and part of the second. The plaintiff contended
that the defendant driver became inebriated and
drove approximately a-half mile from the parking
lot before losing control and crashing.
The plaintiff brought the action against both the liquor
store, contending that even without signs of visible intoxication on the part of the underage driver; the liquor store was liable for selling him the alcohol that
led to his inebriation. The driver had $500,000 in primary coverage and a $1,000,000 umbrella. The liquor store had $1,500,000 in coverage. Other claims
previously settled for a total of $1,095,000.
The plaintiff contended that when asked by the clerk,
the driver exhibited the license of his older-than-21year-old brother that had a hole punched through it
to clearly show that it was expired. The 17-year-old,
who entered the store with the driver, showed his own,
underage drivers’ license. The plaintiff maintained
that the clerk none-the-less sold the alcohol to the
minors.
The plaintiff’s alcohol expert contended that it was
highly probable that the 18-year-old driver consumed
the alcohol with the intention of becoming inebriated, and that his ability to drive was impaired. The
plaintiff’s expert and the plaintiff’s second expert on
alcohol service maintained that the clerk was clearly
negligent in failing to ascertain that the one license
that reflected the owner was over 21 had a hole
punched in it to indicate that it was expired and that
his companion’s license reflected that he was underage. The experts further contended that the liquor
store negligently failed to provide adequate training
to its staff. The evidence reflected that a portion of
the staff had undergone outside training in the service of alcohol and that the liquor store was required
to keep a record of those attending. The plaintiff
would have pointed out that the clerk was not on the
list and would have argued that it was clear that she
had not undergone the training.
The plaintiff would have also presented a telephone
company employee who was working on telephone
pole approximately a-half mile from the parking lot in
which the youths were drinking. The witness would
have indicated that he heard the defendant driver’s
engine roar like a race car and looked up to see the
car crashing through a wooden fence and roll over,
striking another telephone pole.
The plaintiff suffered multiple facial fractures, including fractures to the upper and lower jaw and the nasal area, and required numerous procedures. The
plaintiff maintained that the residual scarring is very
noticeable and that he also suffered a significant facial asymmetry that is permanent in nature. The plaintiff further contended that the injury left him with a
mild TBI and some memory and concentration deficits that are permanent in nature. The plaintiff made
no income claims.
The case settled prior to trial for $1,895,000, with
each defendant contributing half.
REFERENCE
Plaintiff’s alcohol expert: John Brick, PhD. Plaintiff’s
alcohol expert: Elizabeth Trendowski. Plaintiff’s oral
and maxillofacial surgeon expert: Andre Montazem,
MD, DMD from New York, NY.
Martini vs. Vucci, et al. Docket no. BER-L-4061-08.
Attorneys for plaintiff: Robert B. Linder and James M.
Pocchia of Law Offices of Robert B. Linder in
Englewood, NJ.
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SUMMARIES WITH TRIAL ANALYSIS
COMMENTARY
The plaintiff, who maintained that the defendant underage driver became inebriated, crashing the car because he was served by the defendant liquor store, was not, in this case involving service to a minor,
required to establish visible intoxication in order to hold the liquor
store liable. Although an alcohol server can generally interpose the
affirmative defense of the underage consumer producing identification that appears valid, the plaintiff emphasized that the driver produced his older brother’s license, that was accepted notwithstanding
that a hole was punched in it to denote that it had expired.
Regarding damages, it is thought that the combination of the observations of the noticeable permanent scarring and facial asymmetry,
the expected strong jury reaction to the liability issues involving service to a minor who became inebriated and lost control, causing the
accident, and the detailed evidence regarding particularly severe initial injuries, would have undoubtedly culminated in an especially
large verdict if the case had been tried. Further, the plaintiff would
have underscored the severe nature of the injuries by pointing to a series of photographs taken both shortly after the collision, and during
the recuperation phase, in which the plaintiff underwent numerous
medical procedures.
$1,450,000 RECOVERY – MOTOR VEHICLE NEGLIGENCE – AUTO/PEDESTRIAN
COLLISION – DECEDENT DOG WALKER IS STRUCK BY LIMOUSINE AFTER CROSSING
HALF OF UNCONTROLLED INTERSECTION – SEVERE HEAD INJURY – SHORT PERIOD
OF CONSCIOUS PAIN AND SUFFERING AT SCENE – ORGAN DONOR DECEDENT IS
KEPT ON LIFE-SUPPORT UNTIL ORGANS HARVESTED.
Union County, NJ
In this matter, a woman sued on behalf of her
deceased husband who was killed by a truck
driver on a Florida interstate. The plaintiffs
argued that the defendant driver was liable for
the collision and the defendant employer should
not have had her driving that long, in which case
the subject incident would not have occurred. The
defendants contended that the decedent was
liable for the collision via a lack of evasive action.
The collision occurred at 4:00 a.m. on December 22,
2009, on Interstate 95 in Flanger County, Florida. The
decedent, Julio R., 33, was driving his tandem tractor-trailer when the defendant, Betty Ann T., a driver
for Williamson Distributors, merged her own tractortrailer onto the interstate from an emergency lane.
The decedent collided with the rear of her truck,
killing Julio R.
The decedent’s widow filed suit against Betty Ann T.
and her employer Williamson Distributors on behalf of
herself, her deceased husband, and her two children. The wrongful death action was heard before
Judge Dalton in the United States District Court for the
Middle District of Florida in Jacksonville.
At trial, the plaintiff argued for the driver’s negligence
through her failure to abide by the 14-hour “hour of
service” rule of the Florida Motor Carrier Safety Act,
which stipulates that after 14 hours of on duty time a
truck driver is required to go off duty for at least ten
hours. Evidence presented by the plaintiff showed
that the defendant driver had been on shift since
8:30 a.m. the previous morning. They further showed
Volume 32, Issue 4, September 2011
that the driver was running behind schedule due to a
delay loading the truck, and was expected to deliver
her load by 6:00 a.m. the following morning.
The defendant argued that the deceased should
have taken evasive maneuvers and had the necessary time to do so. Both sides brought testimony from
accident reconstructionists, economists and human
factors experts. The investigating officer and medical
examiner also testified.
The case settled prior to trial for $1,450,000.
REFERENCE
Plaintiff’s economist expert: Stan Smith from
Chicago, IL. Plaintiff’s internal medicine/
anesthesiology expert: Peter Salgo, MD from New
York, NY.
Kennedy vs. Graham, et al. Docket no. UNN-L-287310, 08-17-11.
Attorneys for plaintiff: Robert G. Goodman and Brian
R. Goodman of Palmisano & Goodman in
Woodbridge, NJ.
COMMENTARY
The plaintiff was able to resolve the case for only slightly less than the
$1,500,000 policy limits, notwithstanding that the decedent did not
work outside of the home. It is felt that this case underscores the manner in which the losses of the guidance and advice and of the services a
devoted wife and mother can, under appropriate circumstances, provide great leverage to a plaintiff. In this regard, the detailed evidence
of an unusually devoted wife and mother of 16 and 19-year-old children would have probably reflected a compelling family situation and
that the loss warranted very substantial compensation.
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$825,000 RECOVERY – MOTOR VEHICLE NEGLIGENCE – REAR END COLLISION – 80YEAR-OLD DRIVER IS STRUCK IN REAR BY DEFENDANT DRIVER UNDER INFLUENCE OF
DRUGS WHO FLEES SCENE – DECEDENT’S CAR PROPELLED INTO BRIDGE ABUTMENT –
20 MINUTES OF CONSCIOUS PAIN AND SUFFERING BEFORE FATAL CARDIAC ARREST
– DECEDENT LEAVES SEVERELY MENTALLY DISABLED SON – GREEN/BITNER DAMAGES.
Bergen County, NJ
This action involved an 80-year-old decedent who
was struck in the rear by the defendant, who was
under the influence of oxycodone, and propelled
into a bridge abutment. The plaintiff contended
that the decedent experienced approximately 25
minutes of pain, suffering and severe anxiety
before suffering cardiac arrest at the scene. The
decedent was a strong caregiver for a 53-year-old
son who was severely mentally disabled and who
was living in a care dependent facility. The
defendant had $1,000,000 in coverage.
The evidence disclosed that when the defendant
driver struck the plaintiff’s vehicle, it swerved into oncoming traffic, and crashed into a bridge abutment.
The decedent’s injuries included several crushed ribs
and an open femur fracture. The plaintiff maintained
though EMT and police observations that the decedent was conscious, in pain, and in great anxiety for
approximately 25 minutes.
The plaintiff contended that because of the extensive
bleeding associated with femur fracture, a tourniquet
had to be applied before the decedent was extricated from the vehicle with the Jaws of Life. The decedent suffered cardiac arrest at the scene and did
not regain consciousness.
The decedent’s son, in his late 50s, was severely mentally disabled and was a resident in a care dependent facility. The plaintiff maintained that the bond
between the mother and son was great and that she
would visit him at least several times per week. The
plaintiff contended that the decedent continued to
provide services, such as bringing the son’s laundry
home to do it for him, and taking him for haircuts and
to the dentist. The plaintiff also maintained that they
would often go the park together and also work on
puzzles. The plaintiff contended that the underlying
disability of the son rendered the need for such
guidance and advice all-the-greater.
The plaintiff would have presented a number of caregivers at the facility in which the son was a resident.
The witnesses would have described a very kindly
woman who was extremely close to her son and the
plaintiff would have maintained that the value of
Green vs. Bitner damages was very substantial.
The case settled shortly after the institution of suit for
$825,000.
REFERENCE
Scordato vs. Benedetto. Docket no. BER-L-1203-11,
06-08-11.
Attorney for plaintiff: Beth G. Baldinger of Mazie
Slater Katz & Freeman, LLC in Roseland, NJ.
COMMENTARY
The plaintiff was able to resolve this action involving the death of an
80-year-old driver for $150,000 less than the $1,000,000 policy limits
shortly after the institution of suit. It is thought that the combination
of factors, including the evidence of an impaired defendant driver
who left the scene after the collision, the detailed evidence of the especially close relationship between the decedent and her disabled son,
and the description of the pain and suffering and severe anxiety experienced by the decedent for 25 minutes at the scene, would probably
have culminated in a particularly large award if the case had been
tried. In this regard, it would appear that because of these factors, the
carrier recognized that resolving the case at a time in which costs of
litigation were minimized appeared especially prudent.
$1,025,000 RECOVERY – SEXUAL ASSAULT – FIVE FORMER ALTAR BOYS SETTLE CHILD
ABUSE CLAIMS PRE-LITIGATION WITH TRENTON DIOCESE – SEXUAL ASSAULT BY
LATE EX-PRIEST.
Superior Court of NJ, Mercer County
In this matter, five men accused a New Jersey
priest of sexually assaulting them while they were
altar boys during the 1970s and 1980s. They
brought suit against his former diocese for
employer’s liability.
The five men in this matter, now middle-aged, were
between ages 11 and 16 when they were altar boys
for the Incarnation Church in Ewing, New Jersey. The
men alleged that during their time as altar boys for
the subject priest, he molested them repeatedly, one
stating approximately 150 times, often during trips.
The priest was stripped of his priesthood in 2002 in
connection to another accusation of child abuse.
The men came forward in 2008. The former priest
died in 2009.
The plaintiffs and the Diocese of Trenton entered into
a tolling agreement which halted the statute of limitations normally attached to allegations of sexual
abuse. The agreement determined that if they were
unable to reach settlement respecting the plaintiffs’
allegations, they would be entitled to file complaints
that would have been retroactive to the beginning of
the tolling agreement.
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SUMMARIES WITH TRIAL ANALYSIS
The matter was laid to rest pre-litigation for a settlement of $1 million, including $200,000 for each of
the five men, and an additional award of $25,000 to
cover therapy costs for an additional two years.
REFERENCE
Otis Roberts, et al vs. Diocese of Trenton. Docket no.
N/A; Judge N/A, 08-16-11.
Attorneys for plaintiffs: Mitchell Garabedian of Law
Offices of Mitchell Garabedian in Boston, MA, and
Greg Gianforcaro of Law Offices of Gregory G.
Gianforcaro in Phillipsburg, NJ. Attorney for
defendant Diocese of Trenton: Steve Goodell in
Lawrenceville, NJ.
COMMENTARY
The diocese has stated that the allegations against the late priest were
credible, and urged other victims of sexual abuse to come forward.
The late ex-priest’s niece came forward in 2004 with similar allegations. That matter was settled for $325,000.
$1,000,000 VERDICT – MUNICIPAL LIABILITY – FAILURE OF DEFENDANT POLICE
OFFICER TO OBEY STOP SIGN – PLAINTIFF SWERVES AND LOSES CONTROL,
STRIKING OPPOSITE WALL – BILATERAL NASAL PLATE FRACTURES – INABILITY TO
UNDERGO INDICATED SURGERY FROM CARDIAC DISEASE – TOTAL OBSTRUCTION IN
ONE NASAL CAVITY, PARTIAL OBSTRUCTION IN OTHER – TWO PRIOR CERVICAL
BULGES BECOME HERNIATIONS – NEW CERVICAL HERNIATION.
Hudson County, NJ
The plaintiff driver, in his mid 40s at the time of
the accident, contended that the defendant driver,
a municipal police officer, negligently failed to
obey a stop sign to the plaintiff’s right. The
plaintiff maintained that the negligence caused
him to swerve and lose control, striking a wall on
the other side of the roadway on which the
plaintiff was proceeding. The defendant denied
that the plaintiff’s version was accurate. The
defendant contended that the patrol car was
waiting for traffic to pass when the plaintiff lost
control of his car because of excessive speed and
careened into the wall. There was no impact
between the vehicles.
The defendant and his passenger had testified in discovery the patrol car was a few feet behind the stop
sign when the plaintiff lost control, swerved to within
three feet of patrol car, and then continued out of
control to the wall on the opposite side of the street.
The plaintiff countered that demonstrative evidence,
including aerial photographs of the area, reflected
that the defendant could not make such observations from behind the stop sign as testified to in discovery. The defendant indicated at trial that the
patrol car was stopped approximately six feet in front
of the stop sign when the plaintiff lost control. The
plaintiff contended that in light of the inconsistency,
the defendant’s position should be rejected.
The evidence also disclosed that the plaintiff was
charged with careless driving as he was in the hospital. The jury was not aware of a plea to a reduced
charge of impeding traffic.
The plaintiff suffered fractures of both nasal plates.
The plaintiff maintained that one nasal passage is
completely obstructed and the other is partially obstructed. The plaintiff contended that surgery would
otherwise be indicated, but that because of an underlying cardiac condition, surgery is considered too
risky and that the plaintiff will permanently suffer the
very significant breathing difficulties.
Volume 32, Issue 4, September 2011
The plaintiff suffered two cervical bulges in a trauma
approximately one and a-half years earlier. The plaintiff pointed to the MRI films taken shortly after the prior
incident which showed the bulges. The plaintiff contended that his cervical pain was relatively mild until
after the subject collision. The plaintiff contended that
new MRIs disclosed that these two bulges progressed
to herniations and that he sustained a new cervical
herniation as well. The plaintiff maintained that these
injuries were causally related to the subject incident.
The defendant denied that the plaintiff’s claims
should be accepted. The defendant maintained that
any progression and/or disc pathology was related to
a combination of degenerative disc disease and
strains related to physical work that plaintiff performed
as part of his job as a construction supervisor.
The plaintiff countered that he had been essentially
asymptomatic for many years until the subject collision occurred. The plaintiff contended that he can no
longer do this work. The plaintiff has obtained other
work providing cost estimates and the plaintiff made
no future income claims.
The jury found the defendant 100% negligent and
awarded $1,000,000.
REFERENCE
Witkowski vs. Jersey City; Judge Mary Costello, 06-0911.
Attorney for plaintiff: John F. Golden of Albert L.
Buzzetti & Associates, LLC in Englewood Cliffs, NJ.
COMMENTARY
The plaintiff had contended that the defendant police officer negligently failed to stop at a stop sign to the plaintiff’s right, resulting in
the plaintiff swerving and losing control, striking a wall on the left
side of the roadway. The defendant denied that the plaintiff’s claims
were accurate and maintained that the plaintiff lost control as he was
traveling at an excessive rate of speed. There was no impact between
the vehicles. The plaintiff, in overcoming this defense position,
pointed to demonstrative evidence, including aerial photographs of
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SUMMARIES WITH TRIAL ANALYSIS
the area, strenuously arguing that the configuration was such that the
defendants could not have made such observations as they were
sitting behind the stop sign, as testified to in discovery.
The plaintiff further argued that in view of the inconsistency between
the defendant’s deposition and his trial testimony, that he was
stopped approximately six feet in front of the stop sign, the defense
position should clearly be rejected. In this regard, the stark factual
dispute regarding the manner in which the collision occurred polarized the issues. This polarization was heightened by the fact that one
of the parties was a police officer, and it is thought that upon rejection
of the defendants’ liability contentions, the jury was more inclined to
accept the plaintiff’s damages position, as well as his liability
contentions.
9
Moreover, although the jury was not aware that after being charged
with careless driving, the plaintiff had pled guilty in Municipal Court
to a reduced charge of impeding traffic; the jury was aware that the
plaintiff was charged with careless driving while he was in the hospital, and this factor clearly heightened the jury reaction. Additionally,
the plaintiff was required to establish that he met the Tort Claims Act
verbal threshold, which in this case would constitute a permanent loss
of a bodily function. In this regard, the plaintiff emphasized that because of an underlying cardiac condition, he cannot undergo otherwise indicated nasal surgery, and the very substantial breathing
deficits involving a complete obstruction in one nostril and a partial in
the second nostril, is clearly permanent in nature.
$900,000 GROSS VERDICT REDUCED BY 10% FOR FAILURE TO MITIGATE – PREMISES
LIABILITY – NEGLIGENT MAINTENANCE – MOTORCYCLIST HITS 1X1' SINKHOLE FROM
WATER COMPANY’S NEGLIGENT TEMPORARY PATCH – CRASH – CLOSED HEAD
TRAUMA – MILD TBI – REACTIVE DEPRESSION – PLAINTIFF DOES NOT UNDERGO
RECOMMENDED PSYCHOTHERAPY – LACERATION ABOVE EYE NECESSITATING
SUTURES – SOFT TISSUE CERVICAL INJURIES.
Middlesex County, NJ
The plaintiff motorcyclist, in his mid 40s,
contended that the defendant water company,
which had performed roadwork in February,
2008, and placed a temporary patch, negligently
failed to follow its own rules that required the
defendant to obtain a professional paving
contractor to repave the road after it completed its
work. The plaintiff contended that the patch failed
and that the defendant responded by simply
reapplying an inadequate temporary patch only.
The plaintiff maintained that this patch failed as
well, creating an approximate one foot by one
foot sink hole and that he lost control upon
encountering it, crashing.
The plaintiff presented a neighborhood resident who
testified that shortly after the defendant did the initial
work in February, the patch deteriorated. The plaintiff
maintained that the defendant responded to complaints by sending a crew who placed another temporary patch. The plaintiff maintained that the
defendant recognized the need for a professional
paving company to make the temporary patch permanent and that its rules required it to have such
work done. The plaintiff maintained that the jury
should consider that not only did the defendant fail to
do so after first applying the patch; it acted in a particularly negligent fashion by failing to obtain a professional service and placing the temporary patch a
second time.
The plaintiff had no recollection of the accident because of the head trauma. The plaintiff pointed to
testimony of an eyewitness motorist traveling in the
opposite direction that the sink hole had descended
below grade level and the plaintiff maintained that
the danger was not visible to him.
The plaintiff maintained that he suffered a closed
head injury, a laceration above the eyebrow that required 56 sutures and which left some scarring which
the plaintiff did not find significantly affected him and
soft tissue cervical injuries that will cause permanent
pain and restriction. The plaintiff contended that he
sustained a mild TBI and some impact on his memory
and his ability to concentrate. The plaintiff’s
neuropsychologist maintained that several batteries
of neuropsychological tests confirmed the deficits.
The plaintiff contended that he will permanently suffer
periodic headaches and difficulties sleeping in addition to some memory and concentration difficulties.
The defendant denied that the plaintiff suffered
neuropsychological injuries or cognitive deficits. The
defendant contended that the jury should consider
that the plaintiff scored at the average range or
better on testing that gauged concentration and
memory. The defendant maintained that any continuing symptoms stemmed from a psychological reaction. The defendant pointed out that the plaintiff
failed to follow medical recommendations to undergo psychotherapy, and maintained that he failed
to mitigate his damages.
The plaintiff countered that improvement in subsequent batteries are, in fact, diagnostic of a
neuropsychological deficit, and that it was likely that
the plaintiff, whose scores in some categories were in
the average range initially and improved in subsequent batteries, initially had much better than average abilities. The plaintiff’s experts did not dispute that
a portion of the plaintiff’s current complaints are psychological in nature and that he would probably
benefit from psychotherapy. The plaintiff contended
that he sought therapists, but the two about whom he
inquired were not in his health plan. The defendant
countered that the plaintiff could easily have found a
participating therapist.
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SUMMARIES WITH TRIAL ANALYSIS
The plaintiff is a carpenter and was able to return to
work six months after the accident and the evidence
reflected that the soft tissue cervical injuries essentially
resolved.
The jury found the defendant 100% negligent and assessed damages at $900,000. They also found that
the gross award should be reduced by 10% for failure
to mitigate.
REFERENCE
Nigro vs. New Jersey American Water Co. Docket no.
MID-L-7265-08; Judge Heidi Willis Currier, 07-27-11.
Attorney for plaintiff: John R. Gorman of Lutz
Shafranski Gorman & Mahoney in New Brunswick,
NJ.
COMMENTARY
The plaintiff obtained a very substantial award, notwithstanding the
absence of any income claims. The evidence that the defendant not
only failed to follow its own rules regarding obtaining a professional
paving contractor after placing a temporary patch in the roadway, but
heightened the danger by failing to do so even after the initial tempo-
rary patch failed, returning and replacing its own temporary patch,
was thought to have created a strong jury response. Additionally, the
plaintiff, who avoided the imposition of any comparative negligence
for failing to avoid the sink hole, had no memory of the accident. The
plaintiff presented a passing motorist neighborhood who testified
that the sink hole had descended below grade level, and the plaintiff
argued that he was unable to see the defect.
A major damages dispute revolved around the question of whether
the plaintiff suffered permanent cognitive deficits or psychological injuries only, which the defendant contended could be resolved through
psychotherapy. The defendant had emphasized that the plaintiff performed at a level of at least average of the portion of
neuropsychological testing that related to cognitive deficits. The
plaintiff effectively argued that the very fact that these initial average
scores were followed by improved scores reflected a
neuropsychological component in and of itself, stressing that improvement over time is considered a significant diagnostic criteria.
Finally, the jury found that the plaintiff failed to mitigate his damages
and reduced the award by 10% for this reason. In this regard, the
plaintiff could not dispute that notwithstanding the issue of
neuropsychological injury, he also suffered a psychological reaction
for which psychotherapy had been futilely recommended.
Verdicts by Category
PROFESSIONAL MALPRACTICE
Surgery
$550,000 RECOVERY
Medical Malpractice – Surgery – Failure of
vascular surgeon to properly identify and isolate
ureter – Loss of kidney.
Morris County, NJ
This action involved a plaintiff, in her late 40s,
who was undergoing orthopedic surgery in which
the defendant vascular surgeon created an
anterior opening for the surgery and closed at its
completion. The plaintiff contended that the
defendant negligently failed to identify the ureter
and isolate it. The plaintiff maintained that the
defendant negligently placed a surgical clip on
the ureter and negligently failed to ascertain that
he had done so when closing the patient.
The plaintiff maintained that three days later, she developed severe gastric complaints and that ultimately, a CT-scan showed clips on the same plane
on the two dimensional film as the ureter. The plaintiff
contended that although not 3-D, the presence of
the clip in the same plane as the ureter lent compelling support for the plaintiff’s position.
Volume 32, Issue 4, September 2011
It was undisputed that the plaintiff suffered a blockage that led to the loss of the kidney. The defendant
denied that he placed a clip on the ureter and contended that it was highly likely that the plaintiff developed scar tissue that caused the obstruction. The
plaintiff countered that scar tissue would not form in
such a short period and denied that this position
should be accepted.
The plaintiff would have also argued that the claim
by the defendant that he made careful observations
and identified the ureter when closing the patient was
not credible and should be rejected. The defendant
maintained that in view of prior surgeries, the plaintiff
would be more vulnerable to scar tissue in a shorter
period. The defendant further pointed out that the titanium clips are routinely left in a patient and contended that the prior surgeries would account for the
finding of clips on the CT-scan.
The plaintiff contended that the pain and suffering
during her recuperation after the kidney was removed
was very significant. The plaintiff is currently asymp-
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11
tomatic. The evidence disclosed that the chances of
future injury or disease to the remaining kidney are
less than 2%.
The case settled prior to trial for $550,000.
REFERENCE
Plaintiff’s urologist expert: Arnold Melman, MD from
Bronx, NY. Plaintiff’s vascular surgeon expert:
Raymond S. Wojtalik, MD from Haddonfield, NJ.
Gilbert vs. Dolgen. Docket no. MRS-L-000753-08, 0818-11.
Attorney for plaintiff: Herbert M. Korn of Law Offices
of Herbert M. Korn in Morristown, NJ.
CIVIL RIGHTS
$185,000 RECOVERY
Civil Rights – Plaintiff is arrested without probable
cause following melee at teen party – After arrest,
individual officer mistakenly identifies plaintiff as
individual who struck him at party and assaulted
him – Contusions to head and face – Non-fracture
elbow injury.
Morris County, NJ
The incidents giving rise to this lawsuit occurred
while the 17-year-old plaintiff and his 18-yearold brother were among approximately 700
guests at a non-alcoholic teen party held at a
ballroom. Police from various departments,
including the Morris County Prosecutor’s Office,
were called in for crowd control. The plaintiff
contended that the assaulting officer was
addressing a female patron when he was placed
in a headlock by his 18-year-old brother, who
knew the girl. Numerous officers came to the
initial officer’s assistance and arrested about 20
teens, including the plaintiff. All those arrested
were brought to Dover Police Headquarters where
they were placed in holding cells, the juveniles
younger than 18 in one cell and those 18 and
older in another.
The plaintiff contended that after he was in the holding cell for approximately 20 minutes, the assaulting
officer came into the holding cell area and shouted
out, “Who’s the (m.f.) who hit me?” The plaintiff maintained that when no one answered, the officer
looked at him and said, “You’re the one,” mistaking
him for his older brother. The plaintiff contended that
the officer then took him out of the holding cell to a
back processing room.
The plaintiff maintained that upon entering the room,
the officer closed the door and took off his belt containing his gun and holster, accusing the plaintiff of
being a “tough guy.” The plaintiff contended that the
officer then asked him if he wanted to fight him,
prompting him to answer “No.” The plaintiff asserted
that the officer then punched him in the head several
times, threw him into a metal filing cabinet, knocked
him down and kicked him several times. The plaintiff
maintained that as the officer punched him in the
nose, face and head, he ordered the plaintiff to say,
“Yes, sir,” which the plaintiff did. The plaintiff, who lives
in a different town, also contended that the officer
told him that if he ever catches him in Dover again
he’ll “kick his ass.”
The defendant denied that the plaintiff’s version was
accurate or that he was beaten. The plaintiff would
have presented a number of the arrested teens and
although none saw the actual assault, they saw the
officer take the plaintiff from the cell and heard the
commotion in the room only several feet from the
cells. They also saw the defendant return the plaintiff
to the juvenile cell with blood dripping from his nose
and on his shirt and with facial bruises. Several of the
youths gave sworn statements confirming that the
plaintiff’s face had no blood or bruises before the
officer’s attack.
The plaintiff was released to the custody of his parents
that evening, but no charges were ever brought
against him. His parents brought him to the emergency room where CT-scans were taken of his brain
and face. X-rays were also taken of his injured left elbow. All testing came back negative. The plaintiff
had one follow-up visit with his pediatrician and the
injuries essentially resolved.
The case settled at trial call for $185,000.
REFERENCE
Echevarria vs. Town of Dover Police Department, et
al. Docket no. MRS-L-1806-09; Judge Stephan C.
Hansbury, 09-26-11.
Attorney for plaintiff: Joel I. Rachmiel of Law Offices
of Joel I. Rachmiel in Springfield, NJ.
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VERDICTS BY CATEGORY
DRAM SHOP
$150,000 VERDICT
Dram Shop – Defendant restaurant/tavern serves
three beers and two shots to defendant 20-yearold driver/assailant – Assailant strikes plaintiff
passenger after car pulls over to enable plaintiff
to urinate – Fractured larynx.
Middlesex County, NJ
This action involved four friends who visited the
defendant restaurant/tavern, all of whom were in
their early 20s with the exception of the 20-yearold driver. The plaintiff contended that none of
the tavern’s employees properly checked the
minor’s ID and served him some three 16 ounce
beers and two shots of hard liquor. The plaintiff
maintained that such service substantially
contributed to an incident that occurred when the
group left and the car was still in the parking lot.
While they all sat in the car, two passengers
including the plaintiff exited to urinate before
leaving. After urinating, the defendant believed
plaintiff urinated on the door. The plaintiff
contended that the driver exited the car, walked
over to the rear passenger door, opened it and
repeatedly punched plaintiff while he was seated
in the rear passenger seat.
The defendant assailant denied that the plaintiff’s version of the fight was accurate. This defendant contended that there were no punches thrown in the car
and that after plaintiff exited the car, a verbal match
ensued and then punches were thrown outside the
car.
The plaintiff suffered a fractured larynx. He required
surgery and the implantation of hardware. He contended that he will permanently suffer slight hoarseness. The external scarring essentially resolved.
The jury found the defendant assailant 75% liable, the
tavern 25% liable and awarded $150,000.
REFERENCE
D’Onofrio vs. Fox & Hound, et al. Docket no. MID-L2452-08; Judge Arthur Bergman, 09-08-11.
Attorney for plaintiff: Nicholas J. Leonardis of Stathis
& Leonardis in Edison, NJ.
EMPLOYER’S LIABILITY
DEFENDANT’S VERDICT
Employer’s Liability – Retaliatory Termination –
LAD case – Non-tenured Assistant Superintendent
of Schools/Affirmative Action Officer is allegedly
terminated in retaliation for involvement in a
sexual harassment investigation.
Monmouth County, NJ
This was an action brought under NJ LAD in
which the plaintiff, a non-tenured Assistant
Superintendent of Schools, as well as the school
district’s Affirmative Action Officer, contended that
he was terminated in retaliation for his
involvement in an investigation into allegations by
a school administrator that a teacher in the district
had left an offensive, anti-gay note on a car
thought to belong to the school administrator. The
plaintiff, who later recused himself from the
affirmative action investigation due to his
friendship with the complaining administrator,
contended that his position as the Affirmative
Action officer nonetheless led to his forced
resignation from his position.
Volume 32, Issue 4, September 2011
The defendants BOE and Superintendent of Schools
pointed out that the plaintiff was terminated more
than one year after the incident of alleged anti-gay
bias, and that the decision to request the plaintiff’s
resignation was made by a newly hired Superintendent of Schools who had decided that the plaintiff ‘s
overall job performance was deficient, justifying a determination that was made as part of a personnel
change which needed to be made prior to plaintiff
gaining tenure.
The jury found for the defendant.
REFERENCE
Haas vs. Holmdel Board of Education. Docket no.
MON-L-1544-07; Judge Honorable O’Brien Kilgallen,
08-04-11.
Attorney for defendant: Peter H. Spaeth of Wolff
Helies Duggan Spaeth & Lucas, PA in Manasquan,
NJ.
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13
LANDLORD’S NEGLIGENCE
$20,000 RECOVERY
Landlord’s Negligence – Plaintiff tenant contends
window is improperly seated in frame when
installed one to two years earlier – Open window
falls and strikes plaintiff’s fingers – Displaced
fracture to middle finger – Closed reduction and
pinning performed under local anesthetic because
of pregnancy.
Union County, NJ
The plaintiff tenant, who was standing next to the
window with her boyfriend, watching the July 4th
fireworks with her hand on the window ledge,
contended that the window suddenly dropped
with force. The plaintiff’s engineer maintained
that based upon his inspection, the window was
not properly seated in the frame when first
installed, causing the incident. The plaintiff further
contended that the window was rarely kept open,
contributing to the relatively long interim between
the time of installation and the incident. The
defendant’s engineer denied that the window was
improperly seated or otherwise installed
improperly.
The plaintiff’s emergency room physician would have
contended that the plaintiff sustained a displaced
fracture of the middle finger. The plaintiff was nine
months into term at the time of the incident. The
plaintiff’s physician would have related that the plaintiff underwent an open reduction and pinning that
were performed under a local anesthetic.
The plaintiff contended that the relatively small surgical scar is permanent in nature. The plaintiff further
maintained that she will permanently suffer intermittent pain that is heightened upon cold weather.
The case settled prior to trial for $20,000.
REFERENCE
Plaintiff’s emergency room physician expert: David
Rojer, MD from Elizabeth, NJ. Plaintiff’s engineering
expert: Michael Natoli, PE from Totowa, NJ.
Ordonez vs. ICJ Investments and Garden State Window Factory, Inc. Docket no. UNN –L-561-09, 09-2311.
Attorney for plaintiff: Joel I. Rachmiel of Law Offices
of Joel I. Rachmiel in Springfield, NJ.
MOTOR VEHICLE NEGLIGENCE
Auto/Pedestrian Collision
$420,000 RECOVERY
Motor Vehicle Negligence – Auto/Pedestrian
Collision – UM case – Delivery person is struck by
driver who flees scene – Ankle fracture with
surgery – Non-union – Subsequent surgery –
Diabetes hampers recovery and prevents plaintiff
from returning to work.
Passaic County, NJ
The then 61- year-old plaintiff deliveryman
contended that after alighting from the back of his
delivery truck, he was struck in the right foot by
an unidentified auto, which fled the scene. The
plaintiff proceeded under a $1,000,000 UM
policy.
The plaintiff sustained an oblique fracture in the distal
fibula shaft just above the joint line, and a fracture of
the medial malleolus involving the plafond surface of
the tibia. The plaintiff underwent hardware implanta-
tion surgery with external fixation, followed by subsequent procedures involving bone grafting due to
non-union in the fracture zones, with the addition of
infuse-bone morphogenic protein with collagen
sponge. His recovery has been hampered by severe
unrelated diabetes. He never returned to work.
The case settled during pre-arbitration mediation
conducted by the Honorable Joseph F. Scancarella
(retired), of counsel to Perconti & Conk in North
Haledon, New Jersey. His worker’s compensation benefits must be repaid and the net lien is approximately
$54,000.
REFERENCE
Diaz vs. Apex Express. 09-19-11.
Attorney for plaintiff: John J. Piserchia of Law Offices
of John J. Piserchia in Clifton, NJ.
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VERDICTS BY CATEGORY
Broadside Collision
$263,930 VERDICT
Motor Vehicle Negligence – Broadside Collision –
Woman’s neck and back injuries meet New Jersey
verbal threshold for recovery – Herniated disc –
Bulging disc – radiculopathy.
Camden County, NJ
This matter saw a rare instance of a plaintiff
meeting the verbal threshold in a New Jersey
motor vehicle case. The plaintiff collected
$263,930 in total, including $240,000 in
compensatory damages in connection with a
broadside collision.
On March 23, 2007 the plaintiff was riding as a passenger in a vehicle down Evesham road in Evesham
Township, New Jersey. The plaintiff’s vehicle was
broadsided as it passed a Wawa parking lot when the
defendant Brett W. exited the lot. The plaintiff’s vehicle
spun out due to the off-center collision. As a result of
the collision, Mary C. sustained a herniated disc in her
lower back, a bulging disc and radiculopathy in her
neck. The plaintiff’s medical expenses were paid for
by New Jersey Personal Injury Protection.
The plaintiff filed suit in the Superior Court of Camden
County for motor vehicle negligence. The defendant
Brett W. was named, as well as the owner of the vehi-
cle (who was dismissed pre-trial). The plaintiff sought
compensatory damages. The defendant’s insurer offered $15,000 to settle the matter.
In the two day trial, the plaintiff’s case for damages
was made, with liability stipulated by the defendant.
To these ends the plaintiff brought testimony from orthopedic surgeon Dr. Laura Ross and the neurologist
Dr. Shiva Gopal. The defendant argued that the
plaintiff did not meet the verbal threshold for a permanent injury. They brought expert testimony from
Gary Goldstein, an orthopedic surgeon.
The jury returned a $240,000 verdict for the plaintiff,
with stipulated lost wages of $10,444 and $13,486 in
prejudgment interest. The total award was $263,930.
REFERENCE
Plaintiff’s neurologist expert: Shiva Gopal from
Voorhees, NJ. Plaintiff’s orthopedic surgeon expert:
Laura Ross from Hainesport, NJ. Defendant’s
orthopedic surgeon expert: Gary Goldstein from
Voorhees, NJ.
Mary Connolly vs. Brett Walker. Docket no. L633-09;
Judge John A. Fratto, 07-07-11.
Attorney for plaintiff: Benjamin Goldstein of
Drinkwater & Goldstein in NJ. Attorney for
defendant: Rudolph & Kayal in Sea Girt, NJ.
Left Turn Collision
$250,000 VERDICT
Motor Vehicle Negligence – Left Turn Collision –
Plaintiff strikes the defendant’s vehicle when
defendant turns left in front of the plaintiff –
Lumbar and shoulder injuries – Sexual
dysfunction.
Middlesex County, NJ
The 71-year-old male plaintiff in this motor
vehicle negligence case alleged that the
defendant failed to yield the right-of-way and
turned left in front of the plaintiff, causing a
collision. The defendant admitted liability in
causing the collision, but argued that the
plaintiff’s injuries were degenerative in nature
and not caused by the accident.
On February 10, 2005, the plaintiff was proceeding
on Truman Road in Edison Township when the vehicle
operated by defendant made a left hand turn in
front of him, causing a collision in which the plaintiff
struck the defendant’s vehicle. The plaintiff suffered
herniated L4-5 disc with lumbar radiculopathy, lumbar nerve root impingement, left shoulder nerve root
impingement possibly requiring future surgical
decompression and sexual dysfunction.
Volume 32, Issue 4, September 2011
The defendant admitted negligence in causing the
collision and argued that the plaintiff’s injuries were
degenerative in nature. The defendant’s medical expert testified that the plaintiff’s present complaints
were not caused by the motor vehicle accident with
defendant, but were instead the result of spinal stenosis, degenerative spondylosis and a disc “protrusion”
at L4-5, which were all part of “the natural aging
process”.
The jury found for the plaintiff and awarded him
$250,000.
REFERENCE
Plaintiff’s medical expert: Arthur Tiger M.D. from
Dover, NJ. Defendant’s medical expert: Joseph Dryer
M.D. from Millburn, NJ.
John McCutchen vs. Meng Wang. Docket no. L-166407, 01-13-10.
Attorney for plaintiff: Roy Mossi of Gelman, Gelman
Wiskow & McCarthy in Dover, NJ. Attorney for
defendant: Eugene Purcell of Purcell, Mulcahy,
O’Neill & Hawkins in Bedminster, NJ.
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Multiple Vehicle Collision
DEFENDANTS’ VERDICT
Motor Vehicle Negligence – Multiple Vehicle
Collision – Defendant drives wrong way on
divided highway – Front end strike – Alleged
second impact to rear by co-defendant –
Herniated cervical and lumbar discs claimed – No
permanent injury found.
Morris County, NJ
The plaintiff alleged that a vehicle driven by the
defendant was proceeding the wrong way on a
divided highway and struck the front of her car.
The plaintiff claimed that a vehicle driven by the
co-defendant then negligently struck her car in
the rear. The defendant stipulated to negligence
in colliding with the plaintiff’s car. The codefendant denied that his vehicle contacted the
plaintiff’s vehicle. Both defendants maintained
that the plaintiff’s injuries did not meet the verbal
threshold of her automobile insurance policy.
The plaintiff was a female, approximately 50 years
old at the time of the accident. She testified that she
was driving in the left lane of Route 46 east in
Parsippany when the defendant’s vehicle approached driving the wrong way (west) on the divided
highway. The plaintiff testified that she stopped, but
the defendant struck the front passenger side of her
car as it passed. Shortly thereafter, the plaintiff
claimed that the co-defendant’s car impacted her
vehicle from behind.
The plaintiff was diagnosed with disc herniations in
both her cervical and lumbar spine which her chiropractor and radiologist causally related to the collision. The plaintiff was treated non-surgically with
chiropractic care and epidural injections. She made
no claim for economic damages.
The elderly defendant did not appear at trial. The codefendant maintained that his car was struck by the
defendant’s vehicle, but never contacted the plaintiff’s car. He argued that the lack of property damage
to the back of the plaintiff’s vehicle supported his
contentions.
The defendant’s orthopedic surgeon testified that any
pathology shown on the plaintiff’s MRI films was a result of degeneration and the normal aging process,
not trauma.
The jury found that the plaintiff did not sustain a permanent injury as a result of the collision and a verdict
in favor of both defendants was entered.
REFERENCE
Defendant’s orthopedic surgery expert: Barry Levine
from Morristown, NJ.
Gordeeva vs. Chundak, et al. Docket no. 002406 08;
Judge Robert Brennan, 05-11-11.
Attorney for defendant Chundak: John M. Kearney of
Sellar Richardson, P.C. in Livingston, NJ. Attorney for
defendant Laoucher: Lawrence B. Lambert of
Frenkel, Lambert, Weiss, Weissman & Gordon in
West Orange, NJ.
Parking Lot Collision
$76,375 VERDICT
Motor Vehicle Collision – Parking Lot Collision –
Defendant driver turns left out of parking lot and
into path of plaintiff driver – Cervical herniation
and cervical and lumbar bulges – No disc surgery
– Expedited trial.
Monmouth County, NJ
The 49-year-old plaintiff driver contended that the
defendant driver negligently turned left out of a
parking lot and into her path, causing the
collision. The defendant contended that the
plaintiff failed to make adequate observations
and was comparatively negligent.
The plaintiff maintained that she suffered a herniation
at C6-7 and bulges with impingement at C4-5, C5-6,
L2-3, L4-5 and L5-S1. The plaintiff contended that the
injuries were confirmed by MRI. There was no evidence that disc surgery is indicated.
The defendant maintained that any back difficulties
were related to degenerative disc disease only. The
plaintiff countered that she had no significant prior
symptoms or treatment.
The jury found the defendant 100% negligent and
awarded $75,000. With stipulated lost income, the
award was $76,375. Prejudgment interest brought the
award to $92,279.81. The defendant had $100,000 in
coverage.
REFERENCE
Conlon vs. Chachkes, et al. Docket no. MON-L-343707, 06-11-11.
Attorney for plaintiff: Paul K. Caliendo of Gill &
Chamas in Woodbridge, NJ.
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Rear End Collision
$250,000 PRE-SUIT POLICY LIMITS RECOVERY
Motor Vehicle Negligence – Rear End Collision –
Cervical and lumbar herniations – Cervical fusion
– Future lumbar fusion is contemplated – Bilateral carpal tunnel syndrome – Surgery
scheduled as of time of recovery.
Sussex County, NJ
The plaintiff driver contended that the defendant
driver negligently struck her in the rear. The
plaintiff maintained that she sustained cervical
and lumbar herniations that were confirmed by
MRI, along with bilateral carpal tunnel syndrome.
The plaintiff underwent cervical fusion surgery
and maintained that she will nonetheless suffer
permanent restriction and some pain. The
evidence would have also disclosed that a lumbar
fusion in the future is contemplated, but had yet
to have been scheduled as of the time of the
recovery. The plaintiff has scheduled bilateral
carpal tunnel syndrome surgery.
The defendant pointed out that the plaintiff had been
involved in a slip and fall approximately one year earlier and an MVA some months previously, and contended that these factors could well be accounting
for any continuing complaints. The plaintiff countered
that she required little treatment after these prior incidents and would have contended that the defendant’s position should be rejected.
The case settled prior to the institution of suit for the
$250,000 policy limits.
REFERENCE
Ackerson-Rotundi vs. Scymanski. 06-11-11.
Attorneys for plaintiff: Andrew A. Fraser and Timothy
E. Dinan of Laddey Clark & Ryan, LLP in Sparta, NJ.
$175,000 VERDICT
Motor Vehicle Negligence – Rear End Collision –
Lumbar herniation – Damages only.
Sussex County, NJ
Liability was stipulated in this rear end collision
case. The plaintiff driver contended that she
sustained a lumbar herniation that was confirmed
by MRI approximately three months after the
collision. The defendant denied that the plaintiff
sustained a herniation in the accident, or that she
sustained a permanent injury.
The plaintiff maintained that she had no prior disc difficulties, and that it was clear that the incident
caused the herniation. The plaintiff underwent pain
management therapy and contended that despite
such treatment, she will permanently suffer very significant symptoms.
The plaintiff made no income claims. The plaintiff
made an offer for judgment of $100,000, which was
rejected by the defendant.
The jury awarded $175,000. On July 12, 2011 the
judgment, including enhancements under the Offer
for Judgment rule, was entered in the amount of
$244,829.84
REFERENCE
Shishilla vs. Hollar. Docket no. SSX-L-821-08; Judge
Edward Gannon, 04-01-11.
Attorney for plaintiff: Steven J. Loewenthal of
Nusbaum Stein Goldstein Bronstein & Kron in
Succasunna, NJ.
$100,000 PRE-SUIT RECOVERY
Motor Vehicle Negligence – Rear End Collision –
Cervical herniation – Cervical fusion – Plaintiff
mother of five is able to return to job as
automobile salesperson.
Sussex County, NJ
The plaintiff driver of this motor vehicle
negligence action contended that the defendant
driver negligently struck her in the rear. The
plaintiff maintained that she sustained a cervical
herniation that was confirmed by MRI, and which
required a cervical fusion.
Volume 32, Issue 4, September 2011
The plaintiff, who returned to her job as an automobile salesperson, maintained that she works despite
the additional pain. The plaintiff is the mother of five
children, and contended that she has extensive difficulties performing everyday household chores.
The case settled prior to the institution of suit for the
$100,000 policy limits.
REFERENCE
Harvey vs. Gallo. 06-03-11.
Attorneys for plaintiff: Andrew A. Fraser and Timothy
E. Dinan of Laddey Clark & Ryan, LLP in Sparta, NJ.
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$100,000 POLICY LIMIT RECOVERY
Motor Vehicle Negligence – Rear End Collision –
Cervical and lumbar herniations – Lumbar
discectomy – Plaintiff obtains hair dresser job after
accident and contends she works despite
extensive pain – Difficulties caring for two young
children.
Sussex County, NJ
The 41-year-old plaintiff driver contended that
she was struck in the rear by the defendant driver.
The plaintiff contended that as a result, she
sustained herniations at C4-5 and L5-S1 that were
confirmed by MRI. The plaintiff underwent a
lumbar discectomy. The plaintiff contended that
she will suffer permanent pain and limitations.
The plaintiff was not working at the time of the collision and made no wage claims. The plaintiff has
since obtained a job as a hairdresser and contended
that she works despite significant additional pain. The
plaintiff also contended that she has very substantial
difficulties caring for her two young children.
The defendant maintained that in view of the job
choice made by the plaintiff, her claims regarding
the extent of the current symptoms should be significantly questioned.
The case settled prior to trial for the $100,000 policy
limits.
REFERENCE
Sochacki vs. Winkler. Docket no. SSX-L-693-10, 05-2011.
Attorneys for plaintiff: Andrew A. Fraser and Timothy
E. Dinan of Laddey Clark & Ryan, LLP in Sparta, NJ.
$75,000 PRE-SUIT RECOVERY
Motor Vehicle Negligence – Rear End Collision –
Plaintiff driver is propelled into median divider on
interstate highway – Internal derangement of
knee – Aggravation of knee bursitis sustained in
high school incident – Plaintiff allegedly
asymptomatic prior to subject incident.
Morris County, NJ
The 29-year-old plaintiff driver contended that the
defendant driver negligently struck her in the rear
while changing lanes on I-80. The plaintiff
maintained that her vehicle was propelled into the
median divider.
The plaintiff contended that she suffered an internal
derangement of the knee. The plaintiff had sustained
traumatically induced knee bursitis in a high school
incident. The plaintiff maintained that she had been
asymptomatic for the approximate five-year period
preceding the subject incident.
The plaintiff underwent arthroscopic knee surgery and
contended that despite this intervention, she will permanently suffer pain and some difficulties ambulating. The plaintiff made no income claims.
The case settled prior to the institution of suit for
$75,000.
REFERENCE
Plaintiff’s orthopedic surgeon expert: John Vitolo, MD
from Sparta, NJ.
Stormes vs. Sydennis. 03-04-11.
Attorneys for plaintiff: Andrew A. Fraser and Timothy
E. Dinan of Laddey Clark & Ryan, LLP in Sparta, NJ.
$3500 VERDICT
Motor Vehicle Negligence – Rear End Collision –
Plaintiff claims adjuster contends incident caused
continuing cervical complaints – No verbal
threshold – Damages only.
Bergen County, NJ
Liability was stipulated in this case in which the
plaintiff driver was struck in the rear. The plaintiff,
an insurance claims adjuster in his late 40s, had
not opted for the verbal threshold.
The plaintiff contended that he developed radiating
cervical pain shortly after the accident, and maintained that he suffered lasting and permanent injuries. The plaintiff did not undergo an MRI.
The plaintiff’s orthopedist indicated that the X-rays
showed significant degeneration and testified that
this condition rendered plaintiff much more vulnerable to injury upon trauma. The plaintiff’s orthopedist
maintained that the plaintiff will suffer symptoms for
the remainder of his life and is at increased risk of
future cervical arthritis.
The defendant’s orthopedist contended that the
plaintiff suffered a sprain only and that the condition
probably resolved within approximately six weeks. The
plaintiff testified that he continues to work despite the
pain because of economic necessity.
The jury found that while the plaintiff had sustained an
injury as a result of the accident, the injury did not
warrant compensation. The court, finding this verdict
to be inconsistent with the law, sent the jury back to
reconsider its decision. The jury then returned with a
verdict of $ 2,500 for the injuries and $1,000 on a per
quod claim. Defense counsel advises that the de
minimus verdict did not warrant filing an Appeal.
REFERENCE
Martino vs. Keary. Docket no. BER-L-5677-09; Judge
Rachelle L. Harz, 06-28-11.
Attorney for defendant: John W. McDermott of
Harwood Lloyd in Hackensack, NJ.
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DEFENDANT’S VERDICT ON VERBAL THRESHOLD
Motor Vehicle Negligence – Rear End Collision –
Plaintiff driver is struck in rear on interstate
highway – Alleged lumbar and thoracic
herniations – Defendant points to photographs of
minimal damage to both cars.
Passaic County, NJ
The 37-year-old plaintiff driver contended that the
defendant driver negligently struck him in the
rear when proceeding on an Interstate highway.
The plaintiff maintained that he sustained a
herniation at T7-8 and an annular tear at L4-5.
The plaintiff contended that the injuries were
confirmed by MRI and that because more
conservative treatment modalities appear to be
inadequate, he will probably require surgery in
the future in both areas.
The plaintiff works as a pediatric radiologist. He related that much of his work is interventional in nature,
and that he works despite additional radiating pain
and weakness caused by bending.
The defendant denied that the collision was related
to the plaintiff’s complaints and contended that they
were caused by degenerative disc disease only. The
defendant pointed to photographs that showed a
minimal impact. The plaintiff maintained that he had
no prior symptoms or treatment and that in view of
this factor and his age, the defendant’s position
should be rejected.
The jury found the defendant 100% negligent and
found for the defendant on the verbal threshold.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Howard
Baruch, MD from Cliffside Park, NJ. Plaintiff’s
radiology expert: Edward Millman, MD from
Paterson, NJ. Defendant’s orthopedic surgeon
expert: Joseph Dryer, MD from New York, NY.
Taragin vs. Wong. Docket no. PAS-L-200-09; Judge
Thomas J. LaConte, 09-19-11.
Attorney for defendant: Kevin J. McGee of McDermott
& McGee, LLP in Millburn, NJ.
DEFENDANT’S VERDICT
Motor Vehicle Negligence – Rear End Collision –
Woman tries unsuccessfully to meet verbal
threshold – Herniation and bulging discs –
Internal derangement of the knee.
Camden County, NJ
In this matter, a woman rear-ended at a Cherry
Hill intersection tried unsuccessfully to recover for
cervical bulges and herniation and a confirmed
radiculopathy of her cervical vertebrae. The
defendant claimed that the plaintiff failed to meet
the verbal threshold.
The incident occurred on Friday, May 18, 2007 as the
plaintiff was proceeding westbound on Route 70.
While stopped near an intersection with Greentree
road in Cherry Hill, the plaintiff was rear-ended by the
defendant. The plaintiff’s vehicle was struck with sufficient force to precipitate a second collision with the
vehicle in front of it. The plaintiff sustained spinal injuries including bulges to her C5-C6 and C6-7, C5-C6
radiculopathy, acute/chronic lower back pain
caused by herniations. She also suffered an internal
derangement of her right knee and possible carpal
tunnel syndrome.
The plaintiff filed suit in the Superior Court of Camden
County for motor vehicle negligence. The plaintiff
sought recovery of compensatory damages for her
injuries, arguing herself as being permanently disabled by the incident. The driver of the other vehicle
was named as defendant. In non-binding arbitration,
the plaintiff’s claim was valued at $45,000. The plaintiff filed for the trial de novo.
Volume 32, Issue 4, September 2011
During the five day trial, the plaintiff brought testimony
and evidence supporting their damages claims. The
plaintiff alleged permanent injury to her neck, back
and knee, stating a need for treatment including a
cervical fusion procedure. The defendant stipulated
liability. Expert testimony was provided by the
neurosurgeon James Lowe, M.D.
Defense argued that the plaintiff’s injuries did not
pierce the verbal threshold. The verbal threshold in
New Jersey state law requires proof of permanent injury in motor vehicle cases in order to recover noneconomic damages. Testifying for the defense were
orthopedist Dr. Larry S. Rosenberg and Dr. Elisabeth
Post, M.D.
The jury returned after four hours deliberation with a 61 verdict for the defendant, finding that the plaintiff
failed to prove her injury was permanent.
REFERENCE
Plaintiff’s orthopedics expert: James Lowe from
Linwood, NJ. Defendant’s occupational medicine
expert: Elizabeth Post from Mount Laurel, NJ.
Defendant’s orthopedics expert: Larry Rosenberg
from West Berlin, NJ.
Awilda Gonzalez Rodriguez vs. Kimberly Malseed.
Docket no. 001259 09; Judge Faustino Fernandez
Vina, 05-20-11.
Attorney for plaintiff: Louis DeVoto of Rosetti and
DeVoto, PC, of Cherry Hill, NJ. Attorney for
defendant: Diane Magram of Marshall, Dennehy,
Warner, Coleman, & Goggin in Cherry Hill, NJ.
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Single Vehicle Collision
CONFIDENTIAL RECOVERY
Motor Vehicle Negligence – Single Vehicle
Collision – Woman sues after golf cart overturns
with her inside – Soft tissue injuries.
Camden County, NJ
In this matter, a woman sued after being injured
when a golf cart overturned. The matter was
settled in pretrial mediation for a confidential
amount.
On Saturday, July 21 2007, the plaintiff was being
given a ride by Thomas S. in a golf cart. The plaintiff
was being driven across the golf course at
Clementon Park on Berlin Road in Clementon, New
Jersey when the vehicle overturned. The plaintiff sustained whiplash-type soft tissue injuries and some
headaches. Her medical expenses were covered by
her husband’s military benefits.
The plaintiff filed suit in the Superior Court of New Jersey, Camden County. Named in the suit was the
driver of the golf cart and Rekab Inc., the owner of
Clementon Park. Recovery was sought for negligence
and negligent driving. The matter was not a motor
vehicle negligence matter, as there were no motor
vehicle insurers involved.
Settlement was reached in pretrial mediation for a
confidential amount.
REFERENCE
Robin Porter vs. Rekab Inc & Thomas Schrader.
Docket no. 003492 09; Judge Joel Rosen, 05-12-11.
Attorney for plaintiff: Joseph Audino in Berlin, NJ.
Attorney for defendant: Benjamin Goldstein of
Drinkwater & Goldstein in Atco, NJ. Attorney for
defendant: Dennis Marconi of Law Offices Of
Barnaba & Marconi, LLP in Trenton, NJ.
MUNICIPAL LIABILITY
$3,575,700 RECOVERY
Municipal Liability – Township is sued after fall
from bus step leaves elderly man paralyzed.
Somerset County, NJ
In this matter an elderly Chinese citizen and
United States resident was paralyzed when he fell
from a senior citizen bus.
On Nov. 22, 2006, the plaintiff, Ruixiang S., 71, was
studying English at the Montgomery Township senior
center as part of his application for United States citizenship. The bus in question was the transport to and
from that facility for himself and several other seniors,
including a 93-year-old woman that was confined to
a wheelchair. The circumstances of the plaintiff’s behavior in this incident, being his assistance to the elderly woman in boarding and exiting the bus, were
cited as both a result of his cultural consideration for
the needs of the elderly, as well as a misunderstanding regarding the bus’s wheelchair ramp.
Prior to August 2006, the vehicle’s driver had been a
woman untrained on the operation of the ramp, resulting in her assumption that it was inoperable. Acting under this assumption, the former driver had
allowed passengers including the plaintiff to assist in
the loading and unloading of the woman’s wheelchair. A new driver, trained by the previous one, took
up her duties after August. That driver, in keeping with
her instruction by her predecessor, allowed the
plaintiff to assist the woman.
The plaintiff was walking backward down the bus’s
main entrance, pulling the wheelchair, when he fell
from the top step onto the curb, striking his head on
the concrete. The impact resulted in a spinal injury
that rendered him quadriplegic. The plaintiff now requires constant care by a third party and was forced
to return to China. A year after the incident, the plaintiff’s citizenship was granted.
The plaintiff and his wife filed suit in the Superior Court
of New Jersey, Somerset County for negligent training,
naming Montgomery Township and First Vehicle Services, the repair company. The plaintiff sought recovery of medical damages that would permit him to
return to the United States. First Vehicle Services was
removed from the suit via summary judgment after
successfully arguing that they had repaired the lift.
The defendant argued that the plaintiffs did not provide an accompanying examination of the plaintiff,
then in China, verifying his condition and vitality.
The matter was later settled pre-trial for $3.575 million,
with the township’s insurer covering approximately
$3.44 million of the settlement cost and the remaining $135,830 paid by the township’s excess insurer,
Genesis Management and Insurance Services
Corporation.
REFERENCE
Ruixiang Shen & Mei Rong Gao vs. Montgomery
Township, et al. Docket no. L-000565-08; Judge Jack
Keefe, 07-18-11.
Attorney for plaintiff: Michael Falcione in
Lawrenceville, NJ. Attorney for defendant: George
Wilgus in Trenton, NJ.
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$350,000 VERDICT
Municipal Liability – Plaintiff pedestrian is struck
when traffic light turns green by right-turning city
truck – Left temporal bone fracture – Small right
occipital epidural hemorrhage – Vertigo – Hearing
loss – Cervical herniation – No surgery – Damages
only.
Essex County, NJ
Liability was stipulated in this case in which the
plaintiff pedestrian, 34 at the time of the incident
and 37 at trial, contended that after the light
controlling both the plaintiff and the defendant
driver, who was stopped to her left, had changed
from red to green, she began walking. The
plaintiff contended that the defendant negligently
failed to make observations and yield, striking
her. The plaintiff’s two young children were
accompanying her and did not sustain physical or
emotional injury.
The plaintiff contended that she suffered a fracture to
the left temporal bone and a small right-sided occipital epidural hemorrhage. The plaintiff claimed that
she will permanently suffer vertigo and some hearing
loss, as well as periodic headaches. The plaintiff further maintained that she suffered a cervical
herniation with radiculopathy that was confirmed by
MRI and EMG and which will cause permanent
symptoms.
The defendant denied that the plaintiff suffered the
claimed herniation and contended that the other injuries substantially resolved.
The plaintiff made no income claims.
The jury awarded $350,000.
REFERENCE
Parra vs. City of Newark, et al. Docket no. ESX-L-783009; Judge John Kennedy, 05-20-11.
Attorney for plaintiff: John D. O’Dwyer of Ginarte
O’Dwyer Gonzalez Gallardo & Winograd, LLP in
Newark, NJ.
$25,000 RECOVERY
Municipal Liability – Edison cop sues after
reprimand for complaining after fellow officer
who refused him aid as first responder –
Compensatory damages.
Middlesex County, NJ
In this matter, an Edison police officer filed suit,
alleging retaliation against a whistleblower.
In the July 3, 2008 incident that surrounded in this
case, Sgt. Alex G., and the plaintiff patrolman Joseph
K., were first responders on the scene of an automobile accident on Cedar Lane in Edison. In that incident, the patrolman was the first to arrive on scene,
where he successfully extricated the driver of the
wrecked vehicle, Kapil G. of Highland Park. When the
patrolman requested Sgt. Alex G.’s aid in removing
the two passengers from the vehicle, the sergeant refused because of the men’s race. The two men,
Karan B. and Amarinder C., both 24, died at the
scene.
Kapil G. is currently serving a 14-year state prison sentence for drunk driving and two counts of vehicular
manslaughter in connection with the incident. The
patrolman later reported Alex G.’s refusal to the Police Division’s Internal Affairs Unit, but no proof was discovered by that supported the plaintiff’s contentions.
Volume 32, Issue 4, September 2011
The patrolman was placed on administrative leave
after confronting Alex G. and charged with insubordination. The charge was later dismissed with failure to
file charges in a timely fashion (failure to file insubordination charges within the required 45-day period).
The plaintiff filed suit on a whistleblower action in the
Superior court of New Jersey, Middlesex County.
Named in the suit were Edison Township, Edison Township Police Department, Police Director Brian Collier,
Police Chief Thomas B., Sgt. Alex G., Lt. Gregory F., et
al. The plaintiff and his spouse sought compensatory
and punitive damages. Trial commenced with testimony heard by a plaintiff’s psychologist.
The matter was settled on the fourth day, prior to the
defendant putting forward their case, for $250,000.
REFERENCE
Joseph Kenney & Robin Kenney vs. Edison Township,
Edison Township Police Department, Police Director
Brian Collier, Police Chief Thomas Bryan, Sgt. Alex
Glinsky, Lt. Gregory Formica, et al. Docket no.
MIDL5922-09; Judge Phillip Lewis Paley, 09-12-11.
Attorney for plaintiff: Theodore Campbell in New
Brunswick, NJ. Attorney for defendant: Eric L.
Harrison of Methfessel & Werbel in Edison, NJ.
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21
NEGLIGENT SECURITY
$200,000 RECOVERY VS. DEFENDANT TAVERN
Negligent Security – Failure of tavern to eject
assailant after initial incident where assailant
confronts plaintiff onstage – Several minutes later
assailant pulls plaintiff’s bar stool from under her,
resulting in her falling to floor and assailant
pulling her arm up forcefully – Multiple injuries to
dominant shoulder – Two arthroscopic surgeries –
Court subsequently enters $600,000 default
judgment against assailant.
Ocean County, NJ
This case involved a plaintiff tavern patron in her
early 20s. The plaintiff contended that as she was
on stage, singing Karaoke she was confronted by
the co-defendant assailant, who came up on the
stage, ripped the microphone from the plaintiff’s
hands and became verbally abusive, indicating
that he was going to slap her around. The plaintiff
contended that the bouncer was summoned and
that she and the bartender believed that the
bouncer had ejected the assailant.
The plaintiff maintained that a short time later, she
saw the assailant staring at her from the other side of
the bar. The plaintiff told the bartender who left to get
the bouncer. As the bartender was doing so, the assailant approached from behind, and grabbed her
bar stool out from under her causing her to fall to the
ground. The plaintiff contended that the assailant
then proceeded to grab her right shoulder and
slammed her into the bar.
The bartender testified at her deposition that she observed the first confrontation between the plaintiff
and the assailant, and thought that the bouncer had
thrown the assailant out of the bar. The plaintiff contended that the bouncer had not done so, and that
in view of the nature of the initial incident, the
bouncer was clearly negligent.
The plaintiff contended that she suffered an AC joint
separation of her right shoulder, superior labral tear,
multi-directional instability, impingement syndrome,
and a SLAPP lesion and glenohumeral instability. The
plaintiff required two arthroscopic surgical procedures
and missed a total of 36 weeks from her job as a
home health aide. The plaintiff maintained that she
will suffer permanent pain and restriction and works
despite extensive pain.
The defendant tavern contended that the assailant
was properly ejected and returned. The plaintiff countered that in view of the very short time period that
elapsed between the first and second incidents, it
was highly unlikely that the assailant was ejected. The
plaintiff also maintained that even if the assailant was
initially ejected, the bouncer was negligent in permitting him to reenter. The defendant further contended
that the plaintiff made a good recovery.
The case against the tavern settled in April 2011 for
$200,000. In September 2011, the court entered a
$600,000 default judgment against the assailant.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Robert Dennis,
MD from Neptune, NJ.
Daddato vs. Brandy’s Tavern, et al. Docket no. OCNL-000005-09, 04-22-11.
Attorney for plaintiff: Peter J. Luizzi of LePore Luizzi,
PC in Brick, NJ.
PREMISES LIABILITY
Fall Down
$112,000 RECOVERY
Premises Liability – Fall Down – Failure to clear
walkway of ice and snow – Slip and fall at
apartment complex – Multiple cervical disc
herniations and bulge claimed.
Camden County, NJ
The plaintiff was a female, approximately 40
years old, when she claimed she slipped and fell
as a result of ice and snow on the sidewalk of an
apartment building. The defendants included the
apartment complex, as well as its property
manager. The plaintiff alleged that the sidewalk
was not maintained in a safe condition by the
defendants. The parties stipulated that the
defendant was 80% negligent and the plaintiff
was 20% comparatively negligent. The defendant
disputed the injuries which the plaintiff claimed to
have sustained as a result of the fall.
The plaintiff worked in one of the units inside the defendant’s apartment building. She claimed that she
parked her car and was reporting for work in the
morning when she slipped and fell as a result of the
defendant’s failure to shovel or salt the sidewalk.
The plaintiff was diagnosed with disc herniations at
the C3-C4, C4-C5 and C5-C6 levels, as well as a disc
bulge at the C6-C7 level. Her orthopedic surgeon reported that a large central herniation at the C3-C4
level was impinging on the thecal sack. The plaintiff’s
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orthopedic surgeon also causally related the plaintiff’s
cervical condition to the fall and opined that future
surgery may be required.
The defendant’s orthopedic surgeon opined that the
plaintiff’s cervical condition was not causally related
to the accident, was degenerative and predated the
date of the fall. The plaintiff was also involved in a
prior motor vehicle accident.
The case was settled prior to trial for a total of
$112,000. The case had gone to non-binding arbitration with one arbitrator awarding net damages of
$100,000 and the other awarding a net of $140,000.
REFERENCE
Layton vs. Foutainview Village Apts, et al. Docket no.
000108 09, 05-18-11.
Attorney for plaintiff: Leo B. Dubler III in Cherry Hill,
NJ. Attorney for defendant: Brian B. Horan of
Silverman, Sclar, Shin & Byrne in Tenafly, NJ.
Hazardous Premises
$400,000 VERDICT
Premises Liability – Hazardous Premises –
Dangerous platform behind counter at
transmission shop – Plaintiff contends defendant
owner invites her to garage area in back of
premises where she trips and falls over one and
three-quarter inch height differential – Fibula
fracture – Insertion of hardware – Subsequent
arthroscopic surgery to remove scar tissue – No
income claims.
Morris County, NJ
The plaintiff, approximately 50, who was
accompanying her father-in-law who was having
transmission work done, and providing
translation services for her father-in-law,
contended that as they were in the shop speaking
to the owner who was behind the counter, the
owner told them to follow him into the garage
area so that he could show them the work that
had to be done. The evidence reflected that the
defendant placed a wooden platform on the
concrete floor behind the counter to render it
easier for his staff to stand. The plaintiff
maintained that when she was invited into the
back, she walked towards the area and tripped
over the height differential.
The defendant denied that he had invited the plaintiff
into the area and contended that he rarely asks customers into the back. The plaintiff argued that it was
highly unlikely that the plaintiff would walk towards the
back and through the area behind the counter with-
out being invited and that the defendant’s position
should be rejected. The plaintiff also contended that
the defendant should have posted warning signs.
The plaintiff suffered a left sided fibula fracture and
underwent the insertion of hardware. The plaintiff contended that because of severe pain largely stemming from scar tissue, she underwent arthroscopic
surgery. The plaintiff maintained that the pain and a
slight limp have continued, and that she may well require additional surgery in the future. The plaintiff
maintained that she will none-the-less suffer permanent pain and some difficulties walking.
The defendant denied that the plaintiff is continuing
to have difficulties. The defendant introduced a video
posting of the plaintiff appearing active and smiling
at family type functions that were taken from the
plaintiff’s Facebook page.
The plaintiff contended that her ability to do so did
not reflect the absence of continuing difficulties. The
plaintiff also argued that a video of the plaintiff that
was pointed to by the defendant showed a slight
limp.
The jury found the defendant 100% negligent and
awarded $400,000.
REFERENCE
Cariello vs. Hi Tech Transmissions. Docket no. MRS-L2419-09; Judge David Rand, 08-01-11.
Attorney for plaintiff: Steven J. Loewenthal of
Nusbaum Stein Goldstein Bronstein & Kron in
Succasunna, NJ.
$124,000 RECOVERY
Premises Liability – Hazardous Premises – Failure
to inspect and repair commercial parking lot –
Plaintiff trips and falls in pothole – Fracture to
talus – Longitudinal tendon tear in area of ankle –
Surgery – Additional pain and swelling at end of
long day at nursing job.
Volume 32, Issue 4, September 2011
Ocean County, NJ
The plaintiff, in her early 20s, contended that
after she parked her car in a pharmacy lot, she
walked behind her car and tripped and fell in a
pothole that was approximately one foot wide.
The plaintiff contended that the property manager
negligently failed to conduct adequate inspections
and effectuate appropriate repairs.
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VERDICTS BY CATEGORY
23
The plaintiff contended that it was likely that the hole
stemmed from the presence of truck tires, and the
plaintiff maintained that irrespective of the question
of notice, the defendant should be liable under a
mode of operation theory. The defense maintained
that the plaintiff failed to make adequate observations and was comparatively negligent.
The plaintiff contended that she sustained a fractured
metatarsal that was casted. The plaintiff also contended that she suffered a longitudinal tendon tear in
the ankle area and required surgery that left a two
inch scar.
The plaintiff works as a nurse and related that at
times, she works as long as 14 hours per day. The
plaintiff maintained that the pain and swelling becomes very extensive when she spends prolonged
time on her feet.
The case settled prior to trial for $124,000.
REFERENCE
Delaney vs. Jackson Property, et al. Docket no. OCNL-4094-08, 06-01-11.
Attorney for plaintiff: Paul K. Caliendo of Gill &
Chamas in Woodbridge, NJ.
Negligent Maintenance
$15,000 RECOVERY
Premises Liability – Negligent Maintenance –
Plaintiff contends banister of apartment building
stairwell breaks loose from wall as he is leaving
after visiting tenant – Inadequate lighting – 14step fall – Sprained ankle and soft tissue injuries.
Essex County, NJ
The 40-year-old plaintiff contended that the
defendant, his friend’s landlord, negligently failed
to adequately inspect and maintain the stairwell
area. The plaintiff maintained that the light bulbs
had been out for several months. The plaintiff
contended that as he grasped the banister, it
broke free from the wall, causing him to lose his
balance and fall some 14 steps in the darkened
stairwell. The defendant denied that the plaintiff’s
version should be accepted and contended that
the Emergency Department report reflected that
he stated he had “slipped.”
The X-rays were negative for fractures. The plaintiff
contended that he sustained soft tissue neck and
back injuries and an ankle sprain. The plaintiff contended that he will permanently suffer some cervical
and lumbar pain.
The defendant maintained that any injuries resolved.
The plaintiff was unemployed at the time of the
incident.
The case settled prior to trial for $15,000.
REFERENCE
Ellison vs. New Community Corp. Docket no. ESX-L5186-11, 09-26-11.
Attorney for plaintiff: Joel I. Rachmiel of Law Offices
of Joel I. Rachmiel in Springfield, NJ.
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Supplemental Verdict Digest
PROFESSIONAL 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.
$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.
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.
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 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
Volume 32, Issue 4, September 2011
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SUPPLEMENTAL VERDICT DIGEST
25
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.
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-
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.
$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
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.
The jury awarded $1,500,000 for pain and suffering.
REFERENCE
Mohr vs. Yamaha Motor Co. Docket no. MRS-L-206807; Judge Robert Brennan, 04-14-11.
Attorney for plaintiff: Herbert M. Korn of Law Offices
of Herbert M. Korn in Morristown, NJ.
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SUPPLEMENTAL VERDICT DIGEST
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
who was approached from her left. The plaintiff
Volume 32, Issue 4, September 2011
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.
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SUPPLEMENTAL VERDICT DIGEST
The case settled prior to trial for $1,100,000.
REFERENCE
27
Attorney for plaintiff: Ann Ball of A Ball PC in
Commack, NY.
Steward vs. Levy. Index no. 27669/10; Howard
Beldock (mediator), 06-11-11.
$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.
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
$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.
Volume 32, Issue 4, September 2011
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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29
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 further 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
$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.
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.
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.
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
Volume 32, Issue 4, September 2011
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”).
31
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.
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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Volume 32, Issue 4, September 2011
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