1. health and fitness
2. disease
3. cancer

SUMMARIES
WITH TRIAL
ANALYSIS
Volume 28, Issue 9
September 2011
A monthly review of New
York State and Federal
Civil Jury Verdicts with
professional analysis and
commentary.
The New York cases
summarized in detail
herein are obtained from
an ongoing monthly survey
of the State and Federal
courts in the State of New
York.
$32,000,000 VERDICT – Product Liabilty – Asbestos Exposure – Sailor sues manufacturer after contracting
mesothelioma from ship parts – Pleural mesothelioma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
$19,550,157 VERDICT – Product Liability – Asbestos Expsoure – Carpenter contracts testicular cancer after
asbestos exposure – Tunica vaginalis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
$9,185,000 VERDICT – Motor Vehicle Negligence – Auto/Bicycle Collision – Cab driver opens parked cab
door into plaintiff bicyclist and knocks him to ground – Low riding bus then strikes and drags plaintiff with leg caught in
tire – Plaintiff requires extrication by firefighters – Severe degloving injury to leg and testicle – Skin graft surgeries . . 4
$5,000,000 RECOVERY – Civil Rights – Wrongful Death – Parents of autistic boy sue in state and federal
court after aid worker at state facility for the disabled kills him . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
$1,500,000 RECOVERY – Labor Law Sec. 240 – Temporary wooden floor collapses during major renovation
project – Plaintiff laborer falls 15 feet – Internal derangement of knee – ACL rupture – Five knee surgeries – Anal
abscess – Fistulectomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
$1,250,000 VERDICT – Medical Malpractice – Surgery – Failure to inspect for bowel damage during
gallbladder procedure – Failure to diagnose damage for 32 hours – Sepsis – Multiple surgeries – Extended ICU stay. . 7
$975,000 RECOVERY – Bus Negligence – Pedestrian is struck byleft-turning bus from behind – Subdural
hematoma – Loss of smell and taste – Mild TBI – Memory and concentration deficits – Multiple rib fractures. . . . . . . 8
DEFENDANT’S VERDICT – Excessive Use of Force – Ex-cop sues for excessive force in arrest during landlordtenant dispute – Pain and suffering damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
VERDICTS BY
CATEGORY
Professional Malpractice (4)
Ob/Gyn . . . . . . . . . . . . . . 9
Orthopedics . . . . . . . . . . . 10
Surgery . . . . . . . . . . . . . 10
Construction Negligence (1) . . . . . 11
Contract (2) . . . . . . . . . . . . . . 12
Employer’s Liability (1) . . . . . . . . 13
Fraud (1) . . . . . . . . . . . . . . . 13
Labor Law (1) . . . . . . . . . . . . . 14
Multiple Vehicle Collision. . . . . 16
Rear End Collision . . . . . . . . 17
Stopped Vehicle Collision . . . . 19
Premises Liability (4)
Fall Down . . . . . . . . . . . . 19
Hazardous Premises . . . . . . . 20
Property Owner Liability (1) . . . . . 21
Transit Authority Liability (1) . . . . . 22
Supplemental Verdict Digest . . . . 23
Motor Vehicle Negligence (9)
Intersection Collision . . . . . . . 15
Left Turn Collision . . . . . . . . 16
Copyright 2011 Jury Verdict Review Publications Inc.
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Summaries with Trial Analysis
$32,000,000 VERDICT – PRODUCT LIABILITY – ASBESTOS EXPOSURE – SAILOR SUES
MANUFACTURER AFTER CONTRACTING MESOTHELIOMA FROM SHIP PARTS –
PLEURAL MESOTHELIOMA.
New York County, NY
In this matter, a U.S. Navy veteran sued the
equipment manufacturers whose asbestos-laded
equipment he was exposed to while he was a
sailor in the 1960s and 1970s. The plaintiff now
suffers from pleural mesothelioma, a form of
cancer often linked to asbestos exposure. The
defendants denied the subject material caused the
disease.
Ronald D. served on seven U.S. Navy vessels between
1960 and 1977. In that time, the plaintiff served as a
fireman, boiler tender, and eventually a Master Chief
Petty Officer, performing the first two roles on each of
the seven vessels. The duties of those positions included the repair of Crane Co.-manufactured valves
and Elliot Turbomachinery Co., Inc.-manufactured
de-aerating feed tanks. Both of these activities involved the removal of asbestos-containing gaskets
and lagging pads.
Many years later, Ronald D. was diagnosed with pleural mesothelioma, a type of cancer often linked to
asbestos exposure. The plaintiff cited his exposure to
Crane and Elliot products, as well as contact with others who had themselves performed the same duties,
as the causes of his condition.
The plaintiff and his wife filed suit in the Supreme
Court of New York, New York County for product liability, naming manufacturers Crane and Elliot, whose
asbestos-containing products he cited as the cause
of his cancer, as well as A.W. Chesterton. The plaintiff
sought recovery for both past and future pain and
suffering.
At trial, the plaintiff brought expert testimony to link the
plaintiff’s mesothelioma and asbestos exposure. Testifying for the plaintiff were the occupational medicine
expert Dr. Jacqueline Moline, Dr. Barry Castelman, a
public health expert, and the materials analyst
Richard Hatfiled.
The defendants brought Dr. Michael Graham, who
testified that chrysotile asbestos does not cause mesothelioma. They further brought Admiral David
Sargeant, who testified about Navy procedures, Captain Charles Watson, who testified about Navy issues
and Elliots products, Dr. Samuel Foreman, who testified regarding state-of-the-art evidence, and Donna
Ringo, an industrial hygienist who testified on air sam-
pling and related matters. The defendants asserted
that the plaintiff’s exposure was the fault of an unidentified party and their products. They further faulted the
U.S. Navy for the plaintiff’s exposure. Judge Madden
did not permit this question to be added to the
verdict sheet.
After the conclusion of a nine week trial, the jury deliberated for an hour and a-half before returning a
verdict for the plaintiff. The jury awarded $32 million,
including $16 million for past pain and suffering and
another $16 million for future pain and suffering. The
jury apportioned 99% responsibility to Crane and 1%
to Elliot.
REFERENCE
Plaintiff’s Causation expert: Jacqueline Moline from
New York, NY. Plaintiff’s Materials expert: Richard
Hatfield. Plaintiff’s Public Health expert: Barry
Castelman. Defendant’s Industrial Hygiene expert:
Donna Ringo from Louisville, KY. Defendant’s
Materials expert: Michael Graham. Defendant’s Navy
Issues experts: David Sargeant and Charles Watson.
Defendant’s State-of-the-art Evidence expert: Samuel
Foreman.
Ronald Dummitt and Doris Kay Dummitt vs. A.W.
Chesterton, et al. Index no. 190459-2010; Judge
Joan Madden, 08-30-11.
Attorneys for plaintiffs: Jordan Fox, James Long,
Brian Belasky, Seth Dymond, and William Papain of
Belluck & Fox in New York, NY. Attorneys for
defendant Crane Co.: Jeffrey S. King and Tara
Pehush of K&L Gates, LLP in Boston, MA. Attorney for
defendant: Katharine S. Perry, Esq. of Adler, Pollock
& Sheehan, P.C. in Boston, MA.
COMMENTARY
This matter was heard contemporaneously to David Konstantin and
Ruby Konstantin vs. 630 Third Avenue Associates (190134/2010),
an employer liability case involving a carpenter and asbestos-containing joint compound. Plaintiff’s counsel in both cases was
Belluck & Fox. No punitive damages were sought in either matter
due to an order in New York law which has indefinitely deferred all
asbestos verdicts containing punitive damages. Chrysotile (“white”)
asbestos is the most common form of naturally occurring asbestos,
and accounts for 95% of the substance’s use in the United States.
Reproduction in any form without the express permission of the publisher is strictly prohibited by law.
Volume 28, Issue 9, September 2011
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$19,550,157 VERDICT – PRODUCT LIABILITY –
ASBESTOS EXPOSURE – CARPENTER CONTRACTS
TESTICULAR CANCER AFTER ASBESTOS EXPOSURE –
TUNICA VAGINALIS.
New York County, NY
In this labor law action, a carpenter sued for a case of testicular
cancer contracted after working with asbestos in the 1970s. The
many commercial defendants attributed to the asbestos poisoning
variously denied involvement and/or the causation of the condition.
The plaintiff in this matter, David K., was a carpenter on both the 622
Third Avenue and Olympic Towers job sites between 1974 and 1977. On
those occasions several asbestos-containing joint compounds were applied and sanded down in his presence, allegedly resulting in exposure
to particulate matter and dust containing asbestos. The plaintiff asserted
that this exposure resulted in his tunica vaginalis, a rare form of mesothelioma affecting the tissue surrounding the testicles.
David and Ruby K. filed suit in the Supreme Court of New York, New York
County for employer’s liability. The plaintiff named as the general contractor Tishman Liquidating Corporation (formerly Tishman Realty & Construction, Co., Inc.), as well as 630 Third Avenue Associates, Union
Carbide, and over 20 other contractors and subcontractors allegedly a
party to the plaintiff’s asbestos exposure. Non-economic and lost wages
damages were sought for a violation of the New York Labor Law’s requirement for safe workplace conditions. Settlement negotiations were
confidential.
At the nine week trial, the plaintiff argued that the negligent use of asbestos-containing joint compounds applied and sanded by defendant parties resulted in the exposure which caused his cancer. Expert testimony
was heard from a materials expert and a forensic pathologist.
The defendants presented three theories of defense, being that 1) they
were not the right company, 2) the plaintiffs could not prove that there
was asbestos in the joint compound, and 3) that the plaintiff’s condition
was not caused by asbestos. The defendants brought Michael Sirosky, a
Boston neurologist who testified that the plaintiff’s testicular mesothelioma
was not caused by asbestos.
The jury deliberated for a day and a-half before returning a $19,550,157
verdict for the plaintiff, including $7 million for past pain and suffering
and $12 million for future pain and suffering. The jury found Tishman Liquidating Corporation 76% liable for the plaintiff’s damages, with each of
the three joint compound manufacturers, Kaiser Gypsum, U.S. Gypsum
and Georgia Pacific, found 8% liable.
REFERENCE
Plaintiff’s economics expert: Lawrence Spizman from Oswego, NY.
Plaintiff’s forensic pathology expert: James Strauchen from New York,
NY. Plaintiff’s materials expertS: Barry Castelman from New York, NY,
and Richard Hatfield from New York, NY. Plaintiff’s occupational
medicine expert: Stephen Markowitz from New York, NY. Defendant’s
neurology expert: Michael Sirosky from Boston, MA.
David Konstantin and Ruby Konstantin vs. 630 Third Avenue Associates, et
al. Index no. 190134/2010; Judge Joan Madden, 08-17-11.
Attorneys for plaintiffs: Jordan Fox, James Long, Brian Belasky, Seth
Dymond, and William Papain of Belluck & Fox in New York, NY.
Attorneys for defendant: Frank Friedstedt, Esq. and Kerryann Cook, Esq.
of McGivney & Kluger in New York, NY.
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SUMMARIES WITH TRIAL ANALYSIS
COMMENTARY
This matter was the one heard contemporaneously to a second asbestos trial. That case, Dummitt vs. A.W. Chesterton (1904592010), resulted in a $32 million plaintiff verdict on a product liability action as reported above. Plaintiff’s counsel in both cases was
Belluck & Fox. As previously noted, no punitive damages were
sought in either matter due to an order in New York law which has
indefinitely deferred all asbestos verdicts containing punitive
damages.
$9,185,000 VERDICT – MOTOR VEHICLE NEGLIGENCE – AUTO/BICYCLE COLLISION –
CAB DRIVER OPENS PARKED CAB DOOR INTO PLAINTIFF BICYCLIST AND KNOCKS
HIM TO GROUND – LOW RIDING BUS THEN STRIKES AND DRAGS PLAINTIFF WITH
LEG CAUGHT IN TIRE – PLAINTIFF REQUIRES EXTRICATION BY FIREFIGHTERS –
SEVERE DEGLOVING INJURY TO LEG AND TESTICLE – SKIN GRAFT SURGERIES –
FRIABLE SKIN.
New York County, NY
The plaintiff bicyclist, 39 years old at the time of
the accident, contended that the defendant cab
driver negligently failed to make observations
before opening the driver’s side door of his
parked cab on the traffic side into plaintiff,
knocking the plaintiff to the roadway. The plaintiff
also contended that the defendant driver of a low
riding hybrid bus, who also failed to make
observations, went over him and his bike causing
his leg to be jammed up against the tire of the
bus. The plaintiff contended that despite the fact
that the plaintiff’s companion ran alongside the
bus shouting, the bus continued moving while the
plaintiff’s leg was pinned by the tire and his torso
under the bus. The plaintiff sought damages for
his resultant skin graft surgeries and delicate
friable skin condition thereafter.
At trial, the plaintiff maintained that as he riding his
bike on the east side of 10th Avenue, the cab driver
who was parked on the east side of the avenue,
opened his driver door on the traffic side into him
knocking him off his bike to the ground in violation of
a New York City regulation. The plaintiff contended
that the defendant bus driver negligently failed to
keep the plaintiff in his view and traveled too close to
the parking line and the plaintiff. The bus went over
the plaintiff, trapping him under the bus, pinned by
the front right wheel.
The plaintiff maintained that although his companion
ran alongside the bus yelling for the driver to stop and
pounded on the window by the front doors, the bus
driver failed to realize that the plaintiff was being
pushed by the wheel of the bus, continuing for approximately one-third of a block. The plaintiff contended that finally, the waving of arms and shouting
of others in front of him caused the driver of the bus
to stop. The plaintiff was extricated by FDNY who had
to jack up the bus and the plaintiff was then taken to
the hospital.
The defendant cab driver denied opening the cab
door into the plaintiff and maintained that the plaintiff
fell on his own. The plaintiff countered that eyewitness
testimony supported the plaintiff’s position. The cab
driver also contended that the bus driver caused the
Volume 28, Issue 9, September 2011
injuries to the plaintiff. The bus driver contended that
he was concentrating on the traffic to his left and that
he was not negligent because he was in his lane. The
bus driver also contended that it was not foreseeable
that the bicyclist would fall or be hit by the cab’s door
and caused to fall close to the line dividing the traffic
from the parking lane. The bus driver further maintained that the plaintiff’s injuries were caused entirely
by the negligence of the cab driver.
The plaintiff maintained that he suffered extensive
degloving injuries of the left leg from knee to his hip
and of his left testicle. The plaintiff also sustained fractures of his pelvis and right ankle. The plaintiff was an
in-patient from the time of the June 19, 2006 incident
until August 3, 2006. He underwent some five surgeries, including extensive repair of his leg and testicle
and large skin grafting procedure. He also underwent
intensive physical and occupational therapy in the
hospital to relearn how to walk and perform activities
of daily living. The plaintiff required visiting nurse services at home for dressing changes and continued
physical therapy at home followed by ambulatory
care at the hospital for treatment by dermatologists,
orthopedists and plastic surgeons for two years.
The plaintiff contended that the extensive leg scarring, disfigurement, abnormal skin condition and lack
of sensation are permanent. The plaintiff also maintained that he permanently suffers some difficulty with
urination because of scar tissue pulling on the testicle. The plaintiff also related that because of the loss
of fat on the affected portion of the leg, the skin is directly on muscle and does not slide. The plaintiff contended that the loss of this fat cushion and the nature
of the grafted skin have caused his skin to become
very friable and subject to cracking and bleeding.
The plaintiff maintained that he will permanently be
subject to such injuries, and although he attempts to
engage in some of his prior activities, he will permanently be precluded from jogging and biking which
he greatly enjoyed. The plaintiff also contended that
he will permanently be required to avoid exposing
the leg to sunlight.
The jury found the bus driver 70% negligent, the cab
driver 30% negligent and declined to assess any
comparative negligence against the plaintiff. They
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SUMMARIES WITH TRIAL ANALYSIS
then awarded $9,185,000, including $6,000,000 for
past pain and suffering and $3,185,000 for future
pain and suffering.
REFERENCE
Plaintiff’s accident reconstruction expert: Robert Frein
from Westbury, NY. Plaintiff’s orthopedic surgeon
expert: Vincent Fietti, MD from New York, NY.
Cropper vs. Stewart, et al. Index no. 1148778/06;
Judge Donna Mills, 08-11-11.
Attorney for plaintiff: Walter G. Alton, Jr. of W.
Alton., Jr. & Associates, PC in New York, NY.
5
even though the plaintiff’s friend ran alongside the bus and
pounded on the window by the front doors, and that the bus driver
finally stopped because others on were waving arms and shouting
of in front of him, heightened the jury response. Further, the evidence that the plaintiff was required to be extricated by firefighters
who had to jack up the bus was also undoubtedly significant.
Moreover, the photographs of the leg at various stages of his recovery, and the jury’s observations of the severe disfigurement and
scarring that remains was thought to also have a strong impact. Finally, the plaintiff emphasized that because of the virtual absence
of cushioning fat and the nature of the grafted skin, he will permanently suffer very friable skin that is vulnerable to cracking, that he
must avoid sunlight, and that he must lead a much more sedentary
lifestyle.
COMMENTARY
The jury award clearly reflected the highly traumatic and unusual
nature of the incident. In this regard, the evidence that the bus
driver was not aware that the plaintiff was being pushed by the bus
$5,000,000 RECOVERY – CIVIL RIGHTS – WRONGFUL DEATH – PARENTS OF AUTISTIC
BOY SUE IN STATE AND FEDERAL COURT AFTER AID WORKER AT STATE FACILITY FOR
THE DISABLED KILLS HIM.
Albany County, NY
REFERENCE
In this matter, the family sued in both state and
federal court over the wrongful death of their
autistic son while in state care.
Michael and Lisa Carey vs. David M. Slingerland,
Katherine Bishop, Karen Sleight, Cathy Labarge, Ann
Marie Petersen, Jennifer Hoerup, Eloise Potenza, Dave
Iacavitti, Petra Hamilton, Tim Murphy, Edwin Tirado,
Nadeem Mall and John and Jane Does 1-20. Index
no. 1:2009cv00163; Magistrate Randolph F. Treece,
09-21-11.
Jonathan C., 13, was autistic. At the time of his death
on February 15, 2007, Jonathan was being cared for
at OD Heck, a New York State facility for the disabled
located near Albany, New York. On the date of his
death, Jonathan was in a van on a community outing with OD Heck developmental aides Edwin T. and
a trainee, Nadeem M. On that date, Edwin T. asphyxiated and killed Jonathan C. in the van while
Nadeem M. watched. The two men then drove
around for over an hour before seeking medical attention for or checking on the deceased. The death
was ruled a homicide and the two men were convicted, Edwin T. for manslaughter and Nadeem M. for
criminally negligent homicide.
The parents of the deceased, Michael and Lisa C.,
filed wrongful death actions in state and federal
court. The state case was filed in the New York Court
of Claims against the State of New York, while a federal civil rights case was filed against Edwin T.,
Nadeem M., and various individual supervisors at OD
Heck in the United States District Court for the Northern
District of New York. The plaintiffs sought conscious
pain and suffering and hedonic damages on behalf
of Jonathan C. under the U.S. Code 42 U.S.C. § 1983,
as well as punitive damages for gross negligence
and recovery for their own individual pain and
suffering.
Attorney for plaintiff: Ilann Margalit Maazel in New
York, NY. Attorney for defendant: Eric T.
Schneiderman of New York State Office of the
Attorney General in Albany, NY.
COMMENTARY
Jonathan C. had previously been cared for at the privately-owned
Anderson School, a private facility. In 2005, the boy was taken
from Anderson following instances of abuse and brought to OD
Heck, a state-run facility. Two months later, OD Heck was put on
sanction due to a host of violations, including inadequate investigation of injuries of unknown cause.
Investigation of Edwin T. revealed that the aid worker had worked
for 197 hours in the two weeks prior to the killing: 15 days in a
row, including 14 night shifts and ten double shifts. Edwin T. had a
prior criminal record for the sale of marijuana. Nadeem M. had
been fired four times for cause from agencies serving the disabled.
The incident at Anderson became the catalyst for the creation of a
state law requiring that parents be given access to investigative reports of alleged abuse cases involving their children. The law,
called Jonathan’s Law, passed in May, 2007, three months after
Jonathan’s death.
The matter was settled pretrial for $5 million.
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SUMMARIES WITH TRIAL ANALYSIS
$1,500,000 RECOVERY – LABOR LAW SEC. 240 – TEMPORARY WOODEN FLOOR
COLLAPSES DURING MAJOR RENOVATION PROJECT – PLAINTIFF LABORER FALLS 15
FEET – INTERNAL DERANGEMENT OF KNEE – ACL RUPTURE – FIVE KNEE SURGERIES –
ANAL ABSCESS – FISTULECTOMY.
Kings County, NY
This was a Labor Law Sec. 240 (1) case in which
the plaintiff, a 34-year-old plumber’s assistant,
who was working on a renovation project
constructing low income housing, contended that
the temporary wooden floor that was used before
any wiring or plumbing or sheet rock was
installed was inadequately secured, resulting in
the floor failing and his falling approximately 15
feet. The plaintiff contended that he suffered
severe knee injuries that required five surgeries
and an anal abscess that necessitated a
fistulectomy.
The plaintiff moved for summary judgment against
the defendants, owner and general contractor. The
defendants’ opposition to the motion included challenging the plaintiff’s version of the accident and that
the case was not ripe for summary judgment because a subcontractor was recently impleaded and
discovery as to this party was not complete. The
plaintiff countered that the plaintiff’s version of the accident was supported by his co-worker, that defendant had named the sub-contractor significantly later
than should have been the case, that discovery was
otherwise complete, and that this factor shouldn’t delay the plaintiff’s ability to obtain summary judgment.
The Court severed the third party action and granted
the plaintiff’s motion for summary judgment on July 6,
2010.
The temporary wooden floor collapsed as the plaintiff
was standing and passing copper piping to his coworker. The plaintiff fell with the wood approximately
15 feet. He contended that he sustained severe knee
injuries, including internal derangement and an ACL
rupture. The plaintiff contended that he required a total of five surgical interventions, including two open
knee surgeries. The plaintiff maintained that despite
the surgeries, he will permanently suffer significant
pain and a moderate limp. The plaintiff also maintained that he suffered an anal abscess and required
a fistulectomy. This condition ultimately essentially
resolved.
or substantiate a future income loss claim. The plaintiff would have contended that the jury should consider that he will experience significant pain and
suffering for the remainder of a significant life expectancy and that the disability negatively affected his
future earning capacity.
The case settled prior to the damages trial for
$1,500,000. The third party defendant (sub-contractor), whose case was severed at the time the plaintiff’s motion for summary judgment on liability was
granted, contributed to the settlement.
REFERENCE
Seixas vs. NYC Partnership Development Fund Co.,
Inc., et al. Index no. 30653/06, 06-29-11.
Attorney for plaintiff: Glenn Shore of G Shore, PC in
New York, NY.
COMMENTARY
The defendants’ arguments, in opposition to the plaintiff’s motion
for summary judgment on liability, included the contention that
since a subcontractor it impleaded had yet to participate in discovery, the case was not ripe for Summary Judgment. The plaintiff argued that the defendants could have impleaded this subcontractor
much earlier, that the discovery as to the other parties was complete and that it would be fundamentally unfair to permit the defense to avoid a liability judgment, after which, the plaintiff would
entitled to interest dating back to the time of the summary judgment order. The court concurred, severed the third party action,
and granted the plaintiff’s motion in July 2010.
The plaintiff is an undocumented alien and the plaintiff could not
point to prior earnings to support a lost income claim. It is felt,
however, that the combination of the description of the severe knee
injuries and the plaintiff’s limited education, that underscored his
limitations, could well have, as a practical matter, resulted in this
factor having an impact on a jury award, notwithstanding the absence of a specific claim for lost income. Finally, the traumatic nature of the incident in which the floor literally collapsed under this
worker, resulting in his falling some 15 feet, suffering the anal abscess and the knee injuries, would be expected to create a strong
jury reaction.
The defendant maintained that the plaintiff is an undocumented alien and could not have presented
admissible written proof regarding his income history
Volume 28, Issue 9, September 2011
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7
$1,250,000 VERDICT – MEDICAL MALPRACTICE – SURGERY – FAILURE TO INSPECT
FOR BOWEL DAMAGE DURING GALLBLADDER PROCEDURE – FAILURE TO DIAGNOSE
DAMAGE FOR 32 HOURS AFTERWARDS DESPITE SYMPTOMS OF LEAKAGE – SEPSIS –
MULTIPLE SURGERIES – EXTENDED ICU STAY – LACK OF INFORMED CONSENT ON
RISKS AND ON UNLICENSED STUDENT ASSISTING IN SURGERY.
Tomkins County, NY
In this medical malpractice action, the plaintiff, in
her mid 60s, who had undergone gall bladder
surgery, contended that the defendant general
surgeon negligently failed to conduct an
inspection of portions of the bowel when the
plaintiff exhibited signs and symptoms of a bowel
laceration, including continuing severe pain and
decreased urine output. The plaintiff contended
that as a result, she developed sepsis and
required an ICU stay and a number of additional
surgeries. The plaintiff further contended that she
should have been advised of the fact that a
medical student would be assisting in the surgery.
The plaintiff contended that although the bowel is not
in close proximity to the operative field, there is a
danger, in view of the extensive length of the small intestine, that it could migrate into an area in which it
was more vulnerable. The plaintiff maintained that
precautions, including tipping or swinging the plaintiff
on the table during the surgery to permit gravity to
keep the bowel away from the operative field, should
have bene taken. The defendant maintained that
such precautions were taken and that the bowel injury none-the-less occurred in the absence of
negligence.
The defendant further contended that the gall bladder surgery was necessary and that a reasonable patient would undergo the procedure irrespective of
whether he/she was advised that a student was assisting. The plaintiff contended that although she
needed the surgery, it was not emergent, that she
had been in the hospital for several days as of the
time of the surgery, and that if she had been so advised, other arrangements would have been made.
The plaintiff’s general surgeon maintained that the
defendant should have conducted an inspection of
the bowel at the close of the surgery. The plaintiff further contended that she suffered severe pain that
was greater than would be anticipated after the surgery, and that the continuation of this pain and other
signs, including decreased urine output, should have
alerted the defendant to the potential that the bowel
had, in fact, been lacerated during the surgery. The
plaintiff contended that if the injury had been discovered as of this time, the bowel could have been simply sutured and the plaintiff would have avoided
sepsis.
The plaintiff maintained that because of the sepsis,
her condition became life threatening and that she
was in the ICU for an approximate two-month period.
The plaintiff required a number of surgeries, and required a tracheostomy for a period. The plaintiff contended that the very significant scarring is permanent
in nature. The plaintiff also contended that she will
permanently suffer pain and gastric complaints, as
well as dietary restrictions. The plaintiff made no
income claims.
The jury found that the defendant should have informed the plaintiff that a student was assisting, but
that a reasonable patient would have nonetheless
undergone the surgery, and found for the defendant
on this issue and further found that the plaintiff was
adequately advised of the risks of a cut to the bowel
prior to the surgery. They also found that the defendant was not negligent in lacerating the bowel during
the surgery. The jury further found for the plaintiff on
the issue of the failure to check the bowel for injury
during the surgery and the failure to promptly diagnose the laceration. They then awarded $1,250,000,
including $250,000 for medical bills, $250,000 for
past pain and suffering and $750,000 for future pain
and suffering over 20 years.
REFERENCE
Plaintiff’s general surgeon expert: David Befeller, MD
from Westfield, NJ. Defendant’s general surgeon
expert: Timothy Siegel, MD from Cooperstown, NY.
Adams vs. Cayuga Medical Center, et al. Index no.
0917/09; Judge Robert C. Mulvey, 06-29-11.
Attorneys for plaintiff: Peter T. Rodgers and
Jacqueline M. Thomas of Lacy Katzen LLP in
Rochester, NY.
COMMENTARY
The jury specifically found that the defendant surgeon was causally
negligent in failing to check the bowel for injury before closing the
patient and causally negligent in failing to promptly diagnose the
injury when the plaintiff showed signs and symptoms, including decreased urine output. It is thought that this Tomkins County verdict
was particularly significant, especially in view of the absence of any
claim for lost wages. It is felt that the contrast between the routine
nature of the gall bladder surgery, and the severe nature of the injury involving sepsis that required an approximate two month stay
in the ICU, clearly substantially contributed to a jury response that
is necessary for an award of this magnitude.
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SUMMARIES WITH TRIAL ANALYSIS
$975,000 RECOVERY – BUS NEGLIGENCE – PEDESTRIAN IS STRUCK BY LEFT-TURNING
BUS FROM BEHIND – SUBDURAL HEMATOMA – LOSS OF SMELL AND TASTE – MILD
TBI – MEMORY AND CONCENTRATION DEFICITS – MULTIPLE RIB FRACTURES.
New York County, NY
The 79-year-old plaintiff pedestrian contended
that as she nearly completed crossing the
roadway in the area the crosswalk would have
been if painted, she was struck by the defendant
driver who was turning left from behind her. The
plaintiff contended that as a result, she suffered a
subdural hematoma and a subarachnoid
hemmhorage that was treated medically. The
plaintiff maintained that she suffered a mild TBI
that caused significant cognitive deficits involving
memory and concentration.
The plaintiff further contended that the head trauma
left her with a permanent loss of smell and associated reduction in taste. The plaintiff, who required extensive antibiotic therapy after the collision,
contended that she developed C difficile colitis as a
result and that she will permanently suffer irritable
bowel syndrome.
The police report, which was generated after speaking to the driver of the bus, noted that the accident
occurred as the driver was making a left turn and
looking right (opposite from the plaintiff) for oncoming
traffic. The plaintiff left the scene by ambulance. She
does not know if she lost consciousness. She was
taken to the hospital where she was admitted for two
weeks and three days.
The plaintiff contended that she developed a loss of
smell and taste after the accident. The plaintiff would
have maintained that she underwent a battery of
testing designed to determine if the claimed sensory
losses occurred. The evidence reflected that the tests
are designed to uncover fabrication and are considered objective in nature. The plaintiff’s physicians attributed her loss of smell and taste to the accident.
The defendant’s IME doctor agreed that such sensory
losses could come from head trauma.
The plaintiff graduated from college in the 1950s in
pre-med and worked at a large company for 30
years. Upon her retirement at 60, she returned to
school to earn her master’s degree in social work. She
works as a psychoanalyst/social worker.
Volume 28, Issue 9, September 2011
The defendant would have argued that in view of the
plaintiff’s work as a psychoanalyst, she may well have
been more familiar with the testing process and that
the results should be questioned. The plaintiff countered that she worked only in the fields of emotional
loss and mental illness, was not familiar with
neuropsychological testing, and denied that the defense position should be accepted.
The plaintiff further contended that she was left with a
mild TBT which will permanently caused significant
memory and concentration deficits. The plaintiff
maintained that the deficits were confirmed by a
battery of neuropsychological testing. The plaintiff
missed approximately two months from work. She
contended that although she returned, she has had
great difficulties functioning.
The case settled prior to trial for $975,000.
REFERENCE
Caption info omitted upon request. 09-08-11.
Attorneys for plaintiff: Clifford H. Shapiro and
Michael J. Fitzpatrick of Wingate Russotti & Shapiro
in New York, NY.
COMMENTARY
The defendant driver denied during his ebt that the plaintiff was
crossing at the corner, or that the accident occurred at this location,
contending that that the accident occurred when he was 15-25 feet
from the corner and after having completed his turn. If the case
had been tried, the plaintiff would have undermined the defense
position by pointing to the police report which was generated after
the investigating officer spoke to the defendant driver that reflected that the accident occurred as the driver was making a left
turn and looking right, which was opposite from the plaintiff at
oncoming traffic.
Regarding damages, the plaintiff, who maintained that she was
left with a permanent cognitive deficits and the loss of smell and
taste, contended that objective type testing confirmed these injuries. In this regard, although she worked in the field of psychoanalysis, she pointed out that she dealt with patients suffering
emotional or mental illness and did not possess neuropsychological
expertise.
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DEFENDANT’S VERDICT – EXCESSIVE USE OF FORCE – EX-COP SUES FOR EXCESSIVE
FORCE IN ARREST DURING LANDLORD-TENANT DISPUTE – PAIN AND SUFFERING
DAMAGES.
Kings County, NY
In this matter a former police officer sued for
excessive force after being thrown to the ground
and maced during an arrest by the New York City
Police Department. After a weeklong trial the jury
found for the defendant.
On March 16, 2007, police were called to resolve a
tenant-landlord dispute in Brooklyn, New York involving
the plaintiff. Due to an alleged failure to comply with
officers’ orders, the plaintiff was thrown to the ground
and handcuffed. She was then maced. The plaintiff
sustained numerous cuts and bruises during the
course of her arrest.
The plaintiff filed suit in the Supreme Court of New
York, Kings County for excessive force, citing the
macing and physical force used during her arrest.
The plaintiff sought an unspecified amount in noneconomic damages.
The plaintiff brought testimony at the week-long trial
from the plaintiff, a witness and the arresting officers.
The plaintiff did not dispute the arrest, only the force
applied. The defendant attacked the credibility of the
witness, citing her position as a former NYPD officer
discharged after a felony conviction for professional
misconduct.
After less than two hours of deliberation, the jury returned with a verdict for the defendant.
REFERENCE
Crystal Spivey vs. The City of New York. Index no.
030906/2008; Judge Ellen M. Spodek, 06-02-11.
Attorney for plaintiff: Aaron Depass of Santoriella &
Ditomaso, P.C. in Brooklyn, NY. Attorney for
defendant: Ryan Cebolla of Michael A. Cardozo,
ESQ. in New York, NY.
COMMENTARY
The testimony of the two arresting officers
impeached one another, according to plaintiff’s
counsel, who also argued the admission of the 23year-old felony conviction lost the plaintiff credibility
with the jury. In 1987, the former officer was
convicted of official misconduct for accepting a bribe
from an undercover Internal Affairs officer. That
arrest was one of many in connection with the 77th
Precinct scandal of 1986.
Verdicts by Category
PROFESSIONAL MALPRACTICE
Ob/Gyn
DEFENDANT’S VERDICT
Medical Malpractice – Ob/Gyn – Defendant
gynecologist allegedly transects anterior cervix
and perforates uterine wall during cone biopsy –
Plaintiff presents to subsequent emergency
department with severe abdominal complaints 12
days later – Need for total abdominal
hysterectomy.
New York County, NY
The 40-year-old plaintiff, who underwent a cone
biopsy that was performed by the defendant ob/
gyn, contended that the defendant conducted the
procedure in a negligent manner, transecting the
anterior cervix, and perforating the uterine wall.
The plaintiff went to the non-party emergency
room 12 days later with severe abdominal
complaints and required emergency surgery.
The plaintiff presented an expert ob/gyn and the subpoenaed testimony of the subsequent treating surgeon who related that the plaintiff required an
emergency exploratory laparotomy and total abdominal hysterectomy due to massive hemorrhage,
peritonitis, and an abscess in the posterior cul de sac.
The physician concluded that the injuries occurred
during the defendant’s surgery and the plaintiff maintained that it reflected negligent technique.
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The defendant denied that she transected the cervix
or perforated the uterine wall. The defendant contended that if such an event had occurred, the signs
would have included dysfunctional vaginal bleeding.
The defendant noted the absence of such bleeding
in an exam five days following the cone biopsy.
The defense used a digital projection system, which
displays records in a large, motion picture-like format
on a screen facing the jury. The defendant argued
that these entries supported the defense position that
there was no objective evidence that these injuries
were caused by the defendant, or indeed present,
until after plaintiff had undergone a number of manipulations of the cone biopsy site days later at a
subsequent hospital, following a referral by her pri-
mary care physician, for complaints of abdominal
pain, fever, elevated white blood cell count and
positive pelvic signs.
The jury found that the defendant was not negligent.
REFERENCE
Plaintiff’s ob/gyn expert: Marc Englebert, MD from
New York, NY. Defendant’s gynecological pathology
expert: Khush Mittal, MD from New York, NY.
Defendant’s ob/gyn expert: Henry Prince, MD from
New York, NY.
Ramirez vs. Wu. Index no. 106586/08; Judge Saliann
Scarpulla, 02-03-11.
Attorney for defendant: Andrew Garson of Garson
DeCorato & Cohen, LLP in New York, NY.
Orthopedics
DEFENDANT’S VERDICT
Medical Malpractice – Orthopedics – Plaintiff
suffers a fracture at the site of a pedicle screw
during a lumbar laminectomy and fusion –
Plaintiff claims a lack of informed consent and
calls the surgery too extensive given his age and
condition.
Bronx County, NY
The plaintiff brought this medical malpractice
action after undergoing a lumbar sacral
laminectomy and fusion which he claimed was an
inappropriate procedure considering his age and
osteoporosis. During the procedure, the plaintiff
suffered a fracture at the site of one of the pedicle
screws in his sacrum. The plaintiff claimed
approximately $ 750,000 in pain and suffering
related to the fracture. The defendant contended
the plaintiff gave informed consent for the
procedure and that a fracture at the site of one of
the screws is an accepted complication.
The 75-year-old male plaintiff underwent the
laminectomy and fusion on July 28, 2006 after unsuccessful non-operative treatment. He claimed the operation was too extensive given his advanced age
and the presence of osteoporosis. He additionally denied giving informed consent to the procedure.
The defendant claimed there was no evidence the
plaintiff had osteoporosis, and contrarily, the defendant contended the plaintiff was an appropriate candidate for the surgery given the fact that previous
non-operative treatment had been unsuccessful. The
defendant also argued that X-rays taken subsequent
to the procedure and the discovery of the fracture
provided no radiological evidence that the fusion did
not heal properly.
The plaintiff did attempt to introduce post-surgery
medical records from two different physicians, without having disclosed them prior to trial. The court excluded these records based on the lack of
disclosure. As this trial developed, a principle issue
became the lack of informed consent, yet the plaintiff professed a lack of recollection of much of the
details surrounding the surgery.
The jury therefore found the plaintiff’s credibility lacking and rendered a verdict in favor of the defendant.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Dr. Gregory
Shankman, M.D. from Uttica, NY. Defendant’s
orthopedic surgeon expert: Dr. Christopher
Michelsen, M.D. from New York, NY.
Harvey Yancey vs. Yong H. Kim, M.D. Index no.
301562/2007; Judge Howard H. Sherman, 02-08-11.
Attorney for plaintiff: Chad Young of Sinel &
Associates, PLLC in New York, NY. Attorney for
defendant: Bruce Brady of Callan, Koster, Brady and
Brennan, LLC in New York, NY.
Surgery
DEFENDANT’S VERDICT
Medical Malpractice – Surgery – Plaintiff
undergoing fusion surgery involving L5-S1 and
S1-S2 levels contends defendant neurosurgeon
negligently opts for minimally invasive surgery
notwithstanding alleged vulnerability of small S1
pedicle invasive fusion to treat herniations to
injury – Permanent need for cane to walk.
Volume 28, Issue 9, September 2011
Richmond County, NY
The plaintiff, in his late 30s, who had suffered
herniations at L5-S1 and S1-S2 while employed as
a construction worker approximately ten months
earlier, contended that the defendant
neurosurgeon negligently recommended that the
patient undergo minimally invasive surgery. The
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plaintiff contended that because of the very small
size of the S2 pedicle bone, the defendant should
have performed an open procedure. There was no
evidence that the defendant used negligent
surgical technique.
The plaintiff contended that he will permanently suffer
particularly severe pain and require a cane to walk.
The defendant contended that the minimally invasive
option was an appropriate exercise of medical judgment and that the injury to the S1 nerve root was a
known complication.
11
The jury found that the defendant was not negligent.
REFERENCE
Plaintiff’s neurosurgeon expert: Brian Holmes, MD
from Hagerstown, MD. Defendant’s neurosurgeon
expert: George DiGiacinto,MD from New York, NY.
Bjorkund vs. Shiau. Index no. 103946/08; Judge Joseph S. Maltese, 04-13-11.
Attorney for defendant: Louis E. Jakub, Jr. of Garson
DeCorato & Cohen, LLP in New York, NY.
DEFENDANT’S VERDICT
Medical Malpractice – Surgery – Alleged
premature extubation following successful bypass
surgery – Alleged negligent reintubation – Airway
stenosis – Permanent need for tracheostomy tube.
cheal stricture developed and that despite surgery,
the stricture recurred. The plaintiff contended that he
required a tracheotomy and will permanently require
a tracheostomy tube.
Richmond County, NY
The defendant contended that it was important to remove the tube as soon as possible after the coronary
surgery in order to prevent lung damage. The defendant maintained that a permissible medical judgment was made. The defendant also denied that the
tracheal stricture was caused by trauma during the
reintubation and contended that it is a known complication of prolonged intubation.
The plaintiff, who had undergone a successful
CABG, contended that when attempts were made
to extubate the patient, he became very
combative, reflecting that the attempt was
premature. The defendant sedated the patient
after several attempts and ultimately extubated
him on the fifth day following surgery. The
plaintiff maintained that the patient’s
combativeness factor should have underscored
that he was not ready to have the tube removed.
The plaintiff contended that once the tube was removed, the patient experienced severe breathing
difficulties, and the tube was required to be immediately reinserted. The plaintiff maintained that the
plaintiff suffered a very significant trauma, that a tra-
The jury found for the defendant.
REFERENCE
Passanisi vs. Staten Island University Hospital. Index no.
104443/07; Judge Joseph S. Maltese, 12-07-10.
Attorney for defendant: Louis E. Jakub, Jr. of Garson
DeCorato & Cohen, LLP in New York, NY.
CONSTRUCTION NEGLIGENCE
$165,000 TOTAL RECOVERY
Construction Negligence – Failure of utility to
properly secure construction plates – Host driver
fails to avoid gap between plates and slides back
into it when he unsuccessfully attempts to
accelerate out – Incident occurs when plaintiff is
being driven home from treatment of a
longstanding preexisting back condition – Cervical
compression fracture – Several cervical and
lumbar bulges.
Kings County, NY
The plaintiff front seat van passenger, who was
being driven home from her physician where she
underwent treatment for a long-standing back
condition, contended that the defendant utility
negligently failed to secure two road construction
plates when road excavation was not occurring.
The plaintiff contended that as a result, a gap
formed between the plates, and that the co-
defendant driver negligently failed to observe it.
The plaintiff contended that the front of the van
drove into the gap and that the driver tried to
accelerate out of the gap, but instead pushed the
plate away resulting in the van falling back into
the excavation. The plaintiff indicated that the
plates were “ajar,” and she saw the gap a few
seconds before the impact.
An independent witness testified the hole was about
five to six feet deep. The incident occurred during a
moderate rain and moderate traffic conditions. ConEd contended it had nothing to do with the excavation site and merely put its plates over the excavation
at the request of NYPD after the accident. Although
under subpoena, the defendant driver failed to
appear at trial.
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VERDICTS BY CATEGORY
The plaintiff contended that she observed that the
construction plates had a welded logo “CE” on them
as she was being removed from the scene. The plaintiff further maintained that photos from the scene the
day after the accident confirmed that the utility’s logo
was on the construction plates.
The plaintiff had suffered a back injury some years
earlier and was receiving treatment for a lumbar and
cervical bulge. The plaintiff contended that the subject incident caused a compression fracture at C-5,
an aggravation of the prior condition and several additional bulges in both the cervical and lumbar areas.
The plaintiff contended that she will permanently suffer particularly extensive pain and limitations.
The utility settled during the liability trial for $140,000.
The jury found the host driver 75% negligent and the
utility 25% negligent. The case against the driver then
settled for the $25,000 policy limits.
REFERENCE
Woodruff vs. Con-Ed, et al. Index no. 3867/07; Judge
David Vaughn, 09-14-11.
Attorney for plaintiff: Phillip P. Nikolis of Pugatch &
Nikolis in Garden City, NY.
CONTRACT
DEFENDANT’S JUDGMENT
Contract – Plaintiff airline brings action for
common law contribution and contractual
indemnification against defendant service
company – Case regards underlying incident of
service company employee waiting on tarmac
being struck and killed by vehicle driven by airline
employee.
U.S. District Court, Eastern District of NY
This action involved a plaintiff airline, an airline
carrier, and a defendant service company that
was contracted to clean the airline’s planes,
including those which were parked at a remote
lot. The underlying incident giving rise to this case
occurred during the midnight shift and during this
period, airline mechanics would provide access to
the plane for the defendant’s cleaning workers. A
cleaning worker employed by the service
company was struck and killed by a vehicle driven
by an airline worker as the cleaning worker was
waiting to be picked up and the litigation relating
to the underlying incident is pending.
The plaintiff airline contended that it was entitled to
contractual indemnification and common law contribution from the service company for any liability for
the incident. The service company contended that it
should not be liable for contractual indemnification
unless the airline was free of fault. The service company maintained that reasonable minds could not so
find and that the action should be dismissed. The airline also contended, on its common law contribution
claim, that the service company breached its common law duty to provide adequate training to the
worker, leading to her death.
The service company denied that it had a common
law duty to train/supervise the worker in road safety,
and that the service company’s motion should be
granted.
The court concurred with the service company and
granted its motion for summary judgment.
REFERENCE
Medina vs. Delta Air Lines, Inc. v. ARAMARK Aviation
Services. Index no. 09-CV-4018 (NGG) (LB); Judge
Nicholas G. Garaufis, 08-16-11.
Attorney for defendant: Frank D. Thompson, II of
Lewis Brisbois Bisgaard & Smith LLP in New York, NY.
DEFENDANT’S VERDICT
Contract – Plaintiff home buyer contends
defendant agrees to remediate mold from house
and fails to do so.
Rockland County, NY
The plaintiff, a home purchaser, contended that
she asked the defendant, her friend who was
associated with a real estate management
company, to have the house repaired and made
habitable. The plaintiff contended that after
Volume 28, Issue 9, September 2011
moving in, she ascertained that the house was
filled with mold, and that the defendant failed to
remediate it.
The defendant denied that there was a contract to
remediate mold. The defendant contended that the
agreement called for the plaintiff to pay $150,000 for
other work, including roofing work and ridding the premises of vermin. The defendant maintained that the
plaintiff only paid $15,000 for this non-mold work.
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13
The jury found that the parties had not entered into a
contract for the remediation of mold.
Attorney for defendant: Phyllis Shandler of Miller
Miller & Shandler in Haverstraw, NY.
REFERENCE
Cortazzo vs. Norfleet Management, et al. Index no.
000607/09; Judge Linda S. Jamieson, 01-12-11.
EMPLOYER’S LIABILITY
$1,375,000 PRE-TRIAL RECOVERY
Employer’s Liability – Plaintiff falls from ladder
while working – Comminuted heel fracture.
Westchester County, NY
In this negligence matter, the plaintiff alleged that
the defendants were negligent in providing him
with the wrong type of ladder which tipped when
the garage door he was working on was
activated, causing him to fall to the ground and
fracture his heel. The defendants denied the
allegations.
The male plaintiff, a garage door installer, was working on the installation of garage doors for the defendants. The plaintiff was required to secure a
mechanical arm with the controller along a door’s
upper edge. This required the plaintiff to use a ladder
to get to the height necessary to make the connection. The defendants gave the plaintiff an extension
ladder which was propped against the garage door.
As the plaintiff was working on the arm connection,
the door began to open. The extension ladder tipped
and the plaintiff fell a distance of about 12 feet to
the ground.
As a result of the fall, the plaintiff injured his foot and
wrist. He was diagnosed with a comminuted heel
fracture which required open reduction and fixation
surgery, as well as a wrist injury. The plaintiff brought
suit against the defendant town, the maintenance facility itself and the public school district for the town.
The plaintiff alleged that the defendants were negligent in failing to comply with labor laws which required provisions of safe proper equipment. The
plaintiff contended that the use of an A-frame ladder
would have been the proper ladder and would have
prevented the ladder from tipping when the door
suddenly opened, since would not have been
leaning against the door.
The defendants denied the allegations and disputed
the nature and extent of the plaintiff’s injuries and
damages. The defendants contended that the plaintiff was the one who decided to place the ladder he
was provided in the spot that he did and he was negligent in doing so, causing his own injuries.
The plaintiff moved for summary judgment on the issue of liability which was denied by the trial court. The
plaintiff appealed the ruling and the appellate court
reversed, holding that since the incident occurred as
a result of an elevation related hazard, the plaintiff
was not provided the proper and safe equipment by
the defendant.
The matter was to proceed solely on the issue of
damages. The parties agreed to settle the plaintiff’s
claim for the sum of $1,3750,000 in a pre-trial mediated settlement.
REFERENCE
Plaintiff’s economics expert: Pia Di Girolamo, Ph.D.
from Philadelphia, PA. Plaintiff’s vocational
assessment expert: Stuart Schnin, M.S. from New
York, NY. Defendant’s vocational assessment expert:
Melissa Fass-Karlin from Morganville, NJ.
Danilo Riffo-Velozo vs. Village of Scarsdale, et al. Index no. 65/07; Judge Joan B. Lefkowitz, 12-10-10.
Attorneys for plaintiff: Michael Arce and Yolanda
Castro-Arce of The Arce Law Office in Bronx, NY.
Attorney for defendant: Thomas J. Dargan of Lewis
Johs Avallone Aviles & Kaufman in Melville, NY.
Attorney for defendant: Alyson M. Piscitelli of
Jacobwitz Garfinkel & Lesman in New York, NY.
FRAUD
$58,544 DEFAULT JUDGMENT
Fraud – Former director sued after embezzlement
of funds discovered – $58,544 in misappropriated
funds.
Kings County, NY
In this matter, a New York City non-profit
organization sued its former director for recovery
of misappropriated funds. A default judgment was
entered in the plaintiff’s favor after the defendant
ceased defending the case, a decision following
her guilty plea in a Federal criminal court.
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The defendant in this matter Dr. Marilyn J. was the director of the Caribbean Women’s Health Association,
as well as an employee of the city of New York’s Department of Health at an earlier time. Investigation
into the defendant’s actions at CWHA began first, following an audit performed after her leaving that organization’s employ. Irregularities amounting to
misappropriation of funds were discovered,
precipitating this suit.
Further, a criminal investigation was instituted by the
City of New York respecting the defendant’s time at
the Department of Health. The defendant was found
through independent investigation to have misappropriated approximately $58,544 of CWHA’s federal
and state funding. These actions were accomplished
through three unapproved salary increases, billing as
both a salaried employee and an independent consultant, and billing for non-business travel expenses.
The City of New York further accused Marilyn J. of, between February and March 2006, criminally defrauding banks to the tune of approximately $2,589,000
through the falsification of information for the
procurement of home mortgage loans on several
properties.
Women’s Health, sought recovery of $58,544 in misappropriated grants, consulting fees, and other acts
of criminal embezzlement.
Marilyn J. pleaded guilty in July 2010 to one count of
embezzlement and one count of conspiracy to commit mail and wire fraud. Subsequent to the defendant’s plea, civil defense on this matter was
withdrawn. In a one day inquest without the presentation of defense, the plaintiff showed evidence of the
plaintiff’s three charges.
A motion for default judgment was entered by the
plaintiff and approved by Judge Mariam Sunshine.
The decision awarded the Caribbean Women’s
Health Association $58,544 in redress of damages.
REFERENCE
Caribbean Women’s Health Association vs. Dr. Marilyn
John. Index no. 021931/2008; Judge Mariam Sunshine, 06-07-11.
Attorney for plaintiff Caribbean Women’s Health
Association: Roger V. Archivald of Roger V.
Archivald, Esq. in Brooklyn, NY. Attorney for
defendant: The Hinds Firm, LLP in Brooklyn, NY.
Caribbean Women’s Health filed suit against its former director in the Supreme Court of New York, Kings
County. The sole plaintiff in this matter, Caribbean
LABOR LAW
$2,871,200 VERDICT
Labor Law – Construction Site Negligence – Mason
sues City of New York after fall while climbing
scaffold – Four broken ribs – Knee injury – Rotator
cuff injury.
Bronx County, NY
In this matter, a mason on a New York City
construction site sued after falling from a scaffold.
The plaintiff claimed debilitating injury to his
shoulder.
On February 24, 2007, the plaintiff, 53, was working as
a mason on the 980 Mace Avenue School construction site in the Bronx. On the exterior scaffolding to the
job site there was a temporary platform area between two permanent areas. While climbing the scaffold to reach this area, the plaintiff fell. The 12-foot
drop resulted in the plaintiff’s alleged injuries, a total
of four broken ribs, a knee injury and a full thickness
rotator cuff injury to this right shoulder.
He was transported to Jacobi Medical Center for
treatment of his dislocated shoulder. In June, his
shoulder was treated surgically with an open reduction and internal fixation including an anchor. In July
2008, he underwent an arthroscopic meniscectomy
to address the damage to his knee. The plaintiff also
Volume 28, Issue 9, September 2011
underwent a year of physical therapy, but contended
that his arm’s range of motion was permanently hindered, which prevented him from returning to work.
The plaintiff filed suit in the Supreme Court of New
York, Bronx County for his employer’s alleged violation
of state labor laws. The defendants named in the suit
included the City of New York (the site’s owner), the
NYC Department of Education (the site’s operator)
and the NYC School Construction Authority (the job’s
general contractor). The plaintiff sought $4 million to
$7 million for past and future medical expenses, lost
earnings, work-related annuity income and pain and
suffering. The plaintiff gave a demand for $3 million
for pretrial settlement. The defendant offered $1.5
million.
At trial, the plaintiff accused the defendants of violating § 240(1) and § 241(6) of the state’s labor code.
Regarding the alleged breach of Labor Law § 240(1),
they argued that defendants violated New York
Codes, Rules, and Regulations, title 23, parts 1.7(f)
and 23-5.3(f) which requires workers be provide stairs,
ladders or ramps for scaffolds over two feet in height.
Two of the plaintiff’s co-workers concurred with the
plaintiff that the scaffold’s temporary platform could
only be reached by climbing the structure. The failure
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15
to provide safety devices to prevent elevation/gravity
related injuries was further cited as a violation of
Labor Law § 241(6).
The defendants argued that equipment including
ladders was available, and that the plaintiff and his
co-workers had been instructed not to climb the
cross-braces, but did so anyway. The plaintiff’s supervisors confirmed that these instructions had been
given. The defendants cited meeting minutes in
which the instructions were issued.
After the conclusion of trial, the jury of six deliberated
for one day before returning a verdict for the plaintiff.
The jury awarded $2,871,200, concluding that the
defendants had violated state labor laws and regulations, and that this violation was the cause of the
plaintiff’s fall. The verdict included $775,000 for future
medical damages and $1.636 million in past and future lost earning capacity. The jury split was 5-1.
REFERENCE
Plaintiff’s economics expert: Alan Leiken from Stony
Brook, NY. Plaintiff’s engineering expert: Walter
Conon from Waccabuc, NY. Plaintiff’s orthopedics
expert: Scott Gray from Astoria, NY. Plaintiff’s
physical medicine expert: Malcolm Reed from New
York, NY. Defendant’s orthopedics expert: Robert
Goldstein from Bronx, NY. Defendant’s radiology
expert: Evan Dillon from New York, NY.
Marek Ciepierski vs. New York City School Construction
Authority, the City of New York and the New York City
Department of Education. Index no. 15754/2007;
Judge Alison Y. Tuitt, 03-18-11.
Attorney for plaintiff: David H. Perecman of The
Perecman Firm, P.L.L.C. in New York, NY. Attorney
for defendant: Matthew P. Ross of Wilson, Elser,
Moskowitz, Edelman & Dicker L.L.P. in New York, NY.
MOTOR VEHICLE NEGLIGENCE
Intersection Collision
$100,000 VERDICT
Motor Vehicle Negligence – Intersection Collision
– Failure to stop at stop sign at T-intersection –
Lumbar Facet Joint Dysfunction – Aggravation of
previously asymptomatic scoliosis – Resolving
kidney bruise and rib fractures.
Genesee County, NY
The plaintiff driver, in his 30s, who was
approaching the top of a T-intersection,
contended that the defendant driver negligently
failed to stop at a stop sign, causing the collision.
The plaintiff contended that he sustained facet joint
dysfunction at a lumbar vertebrae and that he will
suffer permanent pain and limitations despite treatments such as injections. The plaintiff also contended
that a prior case of moderate scoliosis was asymptomatic until the collision occurred, and maintained
that he suffered an aggravation that will cause per-
manent pain and limitations. A kidney bruise and two
rib fractures resolved. The plaintiff lost 17 weeks from
work.
The defendant admitted 100% negligence, proximate cause and that plaintiff’s injuries met the serious
injury threshold. The defendant denied that the accident caused the claimed scoliosis aggravation or
lumbar facet joint dysfunction.
The defendant had offered $10,000 and the plaintiff’s
settlement demand was $80,000. The jury awarded
$100,000.
REFERENCE
Holtfoth vs. Williams. Index no. 56812; Judge Robert
C. Noonan, 03-01-11.
Attorney for plaintiff: Mark P. Della Posta of Walsh
Roberts & Grace in Buffalo, NY.
$75,000 VERDICT
Motor Vehicle Negligence – Intersection Collision
– Failure to stop at stop sign – Defendant
contends he was confronted with sudden
emergency because he was fleeing from
individual appearing to threaten him with a gun –
Lumbar and cervical herniations and bulges – Ten
weeks missed from work.
Kings County, NY
The plaintiff driver, in his mid 30s, contended that
the defendant driver ran a stop sign, causing the
collision. The defendant maintained that he was
confronted with a sudden emergency. The
defendant contended that an incident of road
rage had just occurred and that the other driver
pulled over and gestured he was about to get a
gun from his trunk.
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The plaintiff maintained that the defendant was either
drag racing or playing “cat and mouse” with the
other driver before the other driver pulled to the side
to open his trunk. The plaintiff maintained that the defendant caused the situation and denied that it was
sudden, contending that his claim of a sudden emergency should be rejected.
The plaintiff contended that he sustained cervical
and lumbar herniations and bulges which were confirmed by MRI. The plaintiff maintained that he continues to suffer extensive pain despite conservative care
and contended that such symptoms will continue
permanently. There was no evidence that the plaintiff
will require surgery in the future. The plaintiff, who is a
counter-terrorism detective, missed approximately
ten weeks from work.
The jury in the liability trial found the defendant 100%
liable following the damages trial, awarding $75,000.
REFERENCE
Willis vs. Millington. Index no. 030436/08; Judge Herbert Kramer, 06-13-11.
Attorney for plaintiff: Karen Emma of Gary Kauget,
P.C. in New York, NY.
Left Turn Collision
$25,000 (POLICY LIMIT) VERDICT
Motor Vehicle Negligence – Left Turn Collision –
Plaintiff driver is struck in rear while making left
turn – Wrist fracture to non-dominant hand –
Summary Jury Trial.
manently suffer pain and some limitations. The
plaintiff was disabled from a work-related accident at
the time of the collision and made no income
claims.
Queens County, NY
The jury found the defendant 100% negligent and
awarded $25,000.
The plaintiff driver, in his mid 50s, contended that
the defendant driver negligently struck him in the
rear as the plaintiff was slowing to turn left after
he activated his turn signal. The defendant denied
that the plaintiff turned on his signal and
maintained that the plaintiff stopped short,
rendering the accident unavoidable.
REFERENCE
Papahatzis vs. Yuminaga. Index no. 016179/08, 0223-11.
Attorney for plaintiff: Jimmy C. Solomos of Law
Offices of Jimmy C. Solomos in Astoria, NY.
The plaintiff contended that he sustained a fractured
wrist on the non-dominant side that was treated conservatively. The plaintiff maintained that he will per-
Multiple Vehicle Collision
DEFENDANT’S VERDICT ON NO FAULT THRESHOLD
Motor Vehicle Negligence – Multiple Vehicle
Collision – Plaintiff driver is struck in rear after
driver strikes car directly behind plaintiff and
propels it into plaintiff’s vehicle – Collision
allegedly causes lumbar and cervical herniation –
Alleged need for lumbar surgery in approximately
ten years – Plaintiff corrections officer able to
return to work.
that the plaintiff will suffer permanent pain and limitations and that lumbar surgery will probably be indicated in approximately ten years. The defendant’s
neurologist denied that the plaintiff suffered the
claimed herniations.
Erie County, NY
The jury found for the defendant on the no-fault
threshold.
The plaintiff driver, approximately 40, contended
that he was struck in the rear when stopped. The
evidence disclosed that the driver of the third car
struck the second car in the rear, propelling it into
the plaintiff’s car. The plaintiff had named both
drivers as defendants and the second driver’s
motion for summary judgment on liability was
granted. The plaintiff’s motion for a directed
verdict on negligence against the third driver was
also granted.
The plaintiff contended that he sustained a lumbar
and a cervical herniation which were confirmed by
MRI. The plaintiff’s orthopedic surgeon contended
Volume 28, Issue 9, September 2011
The plaintiff is a corrections officer and was able to
return to work after a short absence. There was no evidence of prior trauma.
REFERENCE
Plaintiff’s economist expert: Ronald Reiber, PhD from
Buffalo, NY. Plaintiff’s orthopedic surgeon expert:
William Cappicotto, MD from Buffalo, NY.
Defendant’s neurologist expert: Daniel Castellani,
MD from Buffalo, NY.
Bauer vs. Riefler Concrete. Index no. 012128/08;
Judge Tracey A. Bannister, 05-13-11.
Attorney for defendant: Leo T. Fabrizzi of Law Offices
of Laurie Ogden in Buffalo, NY.
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Rear End Collision
$350,000 VERDICT
Motor Vehicle Negligence – Rear End Collision –
Cervical herniation – Plaintiff returns to clerical
job four months later despite continuing pain and
limitations – Damages only – Summary Jury Trial.
Bronx County, NY
The defendant denied that the plaintiff suffered the
herniation in the accident and maintained that any
symptoms were related to degenerative disc disease.
The defendant also questioned the extent to which
the plaintiff’s ability to enjoy non-work related activities
has been effected.
The plaintiff’s motion for summary judgment on
liability was granted in this rear end collision
case.
The jury awarded $350,000. The defendant had
$100,000 in coverage.
The plaintiff driver, in her 40s, contended that she sustained a cervical herniation that was confirmed by
MRI. The plaintiff maintained that she will permanently
suffer symptoms despite conservative treatment.
There was no evidence that surgery will be indicated.
REFERENCE
The plaintiff has a clerical job with a utility and missed
four months from work. The plaintiff contended that
she now works despite extensive pain and limitations.
Plaintiff’s chiropractor expert: Henry Hall, DC from
Bronx, NY.
Bryant vs. Ahaziah. Index no. 305197/09; Judge Barry
Salmon, 02-18-11.
Attorney for plaintiff: Richard K. Hershman of
Richard K. Hershman, PLLC in New York, NY.
$102,000 VERDICT
Motor Vehicle Negligence – Rear End Collision –
Plaintiff contends collision causes lumbar
herniations and ankle sprain – Alleged inability to
continue as security guard – Damages only.
The defendant denied that the plaintiff suffered the
claimed injuries or met the no-fault threshold. The evidence reflected that the collision involved a substantial impact.
Westchester County, NY
The jury awarded $102,000, including $75,000 for lost
earnings, $10,000 for future medical costs and
$17,000 for past medical costs and $0 pain and
suffering.
The plaintiff’s motion for summary judgment on
liability was granted in this rear end collision
case.
The plaintiff driver, in his mid 30s, contended that he
sustained herniations at L4-5 and L5-S1 that were
confirmed by MRI and which will cause permanent
symptoms. There was no evidence that disc surgery is
indicated. The plaintiff also maintained that he suffered an ankle sprain which essentially resolved.
The plaintiff, who had worked as a security guard,
contended that he can no longer do this work and
that because of difficulties standing or sitting for extended periods, he will have great difficulties obtaining alternative work.
REFERENCE
Plaintiff’s orthopedist expert: Stanley Holstein, MD
from New Rochelle, NY. Defendant’s neurologist
expert: Rene Elken, MD from Rye Brook, NJ.
Rivers vs. Peter. Index no. 025850/2008; Judge Orazio
Bellantoni, 01-20-11.
Attorney for plaintiff: Micheal Becker of Marcus
Ollman & Kommer, LLC in New Rochelle, NY.
$40,000 VERDICT
Motor Vehicle Negligence – Rear End Collision –
Elderly man rear-ended by college student sues
for shoulder injury – Torn rotator cuff – Soft tissue
injuries.
Erie County, NY
In this matter, a rear end collision on a roadway
was resolved for the plaintiff in a one day
summary trial. The plaintiff, a senior citizen, was
awarded $40,000 for pain and suffering
associated with a rotator cuff tear and other
injuries.
The plaintiff, 84 years old, was driving with his wife on
the access ramp of Highway 198 in Buffalo, New York.
While stopped at a sign-controlled intersection, the
plaintiff was struck from behind by a vehicle driven by
the defendant. The plaintiff sustained strains to his
neck and back, as well as a tear to his right rotator
cuff.
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The plaintiff filed suit for motor vehicle negligence in
the Supreme Court of New York, Erie county. Named
in the suit was the defendant driver, as well as the vehicle’s owner. The plaintiff’s medical damages were
covered by his no-fault insurance policy, with pain
and suffering recovery sought in this filing. The defendants made a settlement offer of $7,500.
A one day summary trial was held, with the plaintiff
and defendant reviewing medical records of the
treating physicians and experts in orthopedics. The
defendant argued that the plaintiff’s condition was a
product of his age and preexisting conditions. The
plaintiff, however, demonstrated that he had no
complaints or treatment to the right shoulder during
the several years prior to the collision.
After an hour, the jury returned with a verdict for the
plaintiff, awarding $40,000 in pain and suffering
damages.
REFERENCE
Plaintiff’s orthopedics expert: Joseph Buran from
Buffalo, NY. Defendant’s orthopedics expert: John
Leddy from Buffalo, NY.
John Liberati vs. Kaitlyn Riznyk. Index no. 010169/
2009; Judge Donna M. Siwek, 01-21-11.
Attorney for plaintiff: Nelson S. Torre of Law Office
of Nelson S. Torre in Buffalo, NY. Attorney for
defendant Kaitlyn Riznyk: George Collins of Bouvier
Parnership in Buffalo, NY.
DEFENDANT’S VERDICT ON NO-FAULT THRESHOLD
Motor Vehicle Negligence – Rear End Collision –
Plaintiff driver is struck in the rear while stopped
at stop sign – Collision allegedly partially tears
rotator cuff and tears glenoid labrum requiring
arthroscopic surgery – Alleged exacerbation of
preexisting neck and back injuries sustained in a
1999 MVA – Damages only.
Westchester County, NY
Liability was stipulated in this case in which the
48-year-old plaintiff driver contended that she
was struck in the rear by the defendant while
stopped at a stop sign in April 2005. The plaintiff
contended that she sustained a partially torn
rotator cuff and torn glenoid labrum which
required arthroscopic surgery. She also claimed
that she had an aggravation or exacerbation of
preexisting neck and back injuries sustained in a
1999 motor vehicle accident.
The plaintiff described the impact as hard and alleged her vehicle was pushed eight to ten feet. She
was thrown forward and back and the seatbelt put
pressure on her upper torso. The plaintiff maintained
that a bulging disc at C5-C6 seen on an MRI taken in
2003 turned into a herniated disc with cord compression as seen on an MRI taken after the subject
collision.
The plaintiff related that after P.T. was inadequate,
she underwent arthroscopic shoulder surgery. The
plaintiff maintained that despite this intervention, she
will permanently suffer pain and restriction in the
shoulder, as well as radiating pain and weakness in
the back and neck permanently. The plaintiff testified
on direct that she was in an accident in 1999 and in-
Volume 28, Issue 9, September 2011
jured her neck and back, but claimed that after a
short period of chiropractic treatment she was much
improved.
The defendant maintained that the plaintiff made
significantly greater complaints regarding the shoulder and disc injuries between the time of the earlier
accident and the subject collision than claimed on
direct by the plaintiff. The defendant’s biomechanical
engineer contended that based upon an analysis of
crush damage and an entirely independent analysis
based upon estimates of speed provided by the testifying witnesses, he concluded that the change in velocity of the plaintiff’s vehicle as a result of the impact
could be no greater than four miles an hour. He described the physiological effect of such an impact to
a driver protected by a seat back, head rest and a
seatbelt and concluded that her body parts did not
and could not have exceeded their normal physiological limits of motion. He also concluded that there
was no load applied to plaintiff’s right shoulder which
could have been the competent producing cause of
the tears of the rotator cuff and labrum.
The jury found for the defendant on the no-fault
threshold.
REFERENCE
Defendant’s biomechanical engineer expert: Kevin
Toosi from Pittsburg, PA. Defendant’s neurologist
expert: Renee Elkin, MD. Defendant’s orthopedist
expert: Martin Barschi, MD.
Robinson vs. Yaeger. Index no. 009128/06; Judge
Joan B. Lefkowitz, 02-16-11.
Attorney for defendant: Thomas J. Keane of Nesci Keane PLLC in Hawthorne, NY.
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Stopped Vehicle Collision
DEFENDANT’S VERDICT ON NO-FAULT THRESHOLD
Motor Vehicle Negligence – Stopped Vehicle
Collision – Defendant driver of double-parked box
truck backs up into double-parked plaintiff vehicle
– Lumbar herniation and bulges – Cervical bulges
– Torn medial meniscus – Damages only.
The defendant’s biomechanical engineer/accident
reconstruction expert denied that the low impact collision caused the claimed injuries. The defendant’s radiologist and orthopedic surgeon denied that the
films showed the claimed injuries.
Kings County, NY
The jury found for the defendant on the no-fault
threshold.
The plaintiff driver, who was double parked,
contended that the defendant box truck driver,
double parked in front of him, failed to make
observations as he commenced traveling in
reverse, striking the plaintiff’s vehicle. Liability
was stipulated and prior to trial, the parties
entered into a $15,000/$150,000 high/low
agreement.
The plaintiff contended that he sustained a herniation
at L2-3, as well as bulges at L3-4, L4-5, C3-4 and C45. These injuries were treated conservatively. The
plaintiff also maintained that he suffered a tear of the
medial meniscus that necessitated arthroscopic surgery. The plaintiff’s orthopedic surgeon contended
that he will suffer permanent pain and restriction in
both the back and knee.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Alan Dayne,
MD from New York, NY. Defendant’s accident
reconstruction expert/biomechanical engineer expert:
Robert Fijan from PA. Defendant’s orthopedic
surgeon expert: Edward Toriello, MD from New York,
NY. Defendant’s radiologist expert: Stephen Lastig,
MD from New York, NY.
Leykin vs. INNS Corp. Index no. 027813/08; Judge
Leon Ruchelsman, 05-31-11.
Attorney for defendant: Richard B. Brown of Picciano
& Scahill, P.C. in Westbury, NY.
PREMISES LIABILITY
Fall Down
DEFENDANT’S VERDICT
Premises Liability – Fall Down – Slip and fall in
tavern – Defendant allegedly fails to dry puddle
near door despite complaints by plaintiff upon
entering approximately one hour earlier –
Bimalleolar fracture – Liability only.
Westchester County, NY
The plaintiff contended that the defendant tavern
negligently failed to clean a large puddle situated
three to five feet from the door, notwithstanding
plaintiff’s complaints about the existence of the
puddle when she first entered the establishment
sometime after midnight. The plaintiff alleged that
the condition remained for at least an hour before
she slipped and fell.
In support of her claim, the plaintiff called a friend
that was with her that night. This witness supported
plaintiff’s allegation that the puddle existed on the
floor prior to the plaintiff’s accident.
In response, the defendant denied that it had any record of being advised of the puddle. The defendant
also maintained that the plaintiff’s believability was
highly suspect. The defendant contended that the
jury should consider that although the plaintiff could
recall the dimensions of the puddle with specificity,
she could not remember which friends besides the
notice witness had accompanied her and the names
of several other taverns she visited earlier in the
evening.
The defendant further called the EMT who transported
the plaintiff to the hospital and the triage nurse who
treated the plaintiff in the emergency room, on liability. The EMT testified, based on the ambulance report, that the plaintiff claimed she “stumbled” and
the triage nurse testified, based on the emergency
room records, that the plaintiff stated that she
“missed a step.” The defendant further maintained
that if the jury found that the plaintiff slipped on the
puddle, it was clear, based on her testimony that she
was aware of its presence, as she admittedly walked
through it as she was leaving, and that she was comparatively negligent in failing to avoid it.
The jury found that the defendant was not negligent.
REFERENCE
Maier vs. Tri-Kelly’s Inc. Index no. 019758/08; Judge J.
Emmett Murphy, 02-07-11.
Attorney for defendant: Carmen Nicolaou of Havkins
Rosenfeld Ritzert & Varriale, LLP in White Plains, NY.
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Hazardous Premises
$320,000 VERDICT
Premises Liability – Hazardous Premises – Plaintiff
trips and falls over a rain runner in her apartment
building lobby – Broken right elbow.
the doorman was actually “leaning” on a desk while
the maintenance man simply proceeded with rolling
up the runner.
New York County, NY
Video footage of the trip and fall incident in the lobby
was produced and shown during trial. Until that time,
nobody had witnessed the footage, which showed
the doorman leaning against a desk and the maintenance person, also apathetic, as the plaintiff walked
through the lobby. As a result, during the trial, both
men testified that what they stated in deposition was
essentially wrong. The defendant was also charged
by the court with a missing records charge for not
producing a log book with notations about the trip
and fall.
The plaintiff in this case, a female, in her early
60s, who suffers from vision maladies, claimed
she tripped and fell over a rolled-up rain runner
in the lobby of her apartment complex. She
contended that in addition to creating the
hazardous condition in the lobby, the building
maintenance person and doorman failed to warn
her despite having knowledge of her poor vision.
The plaintiff suffered breaks in multiple parts of
her elbow joint as a result of her fall. The
defendant claimed an obstruction was not created
in the lobby since an alternate walking path
existed. The defendant additionally argued the
plaintiff was adequately warned of the rain
runner yet failed to heed the warnings of both the
door man and the maintenance person.
The incident occurred on May 20, 2004 in the apartment building the plaintiff had lived in for nearly 30
years. At the time of the plaintiff’s fall, the building
maintenance person was rolling up the runner, which
the plaintiff noted was the same color as the floor in
the lobby. Both the maintenance person and the
doorman stated in deposition they were screaming
and waving their arms in an attempt to warn the
plaintiff of the runner. Contrarily, the plaintiff testified
The jury awarded the plaintiff $400,000, but allotted
20% liability to the plaintiff, with a total award of
$320,000.
REFERENCE
Plaintiff’s orthopedic surgeon expert: Dr. Jeffrey
Kaplan, M.D. from New York, NY. Defendant’s
orthopedic surgeon expert: Dr. Jeffrey Lubliner, M.D.
from New York, NY.
Gerda Potocnik vs. Tracey Tenants. Index no. 106660/
2007; Judge Louis B. York, 12-14-10.
Attorney for plaintiff: Bryan J. Swerling of Bryan J.
Swerling in New York, NY. Attorney for defendant:
Margaret G. Klein & Assocs. in New York, NY.
$221,000 VERDICT
Premises Liability – Hazardous Premises – Woman
sues for diminished capacity as a result of lead
poisoning as a child – Diminished cognitive
ability.
Monroe County, NY
In this matter, a woman sued for damages
associated with lead poison sustained when she
was a child. The plaintiff named as defendants
the landlords of two properties where she lived
from the ages of three until six. One defendant
did not appear. The other defendant denied the
causation of the plaintiff’s disability.
The plaintiff, now 23, resided at a rental property
owned by the defendant Charles S. for one year at
the age of three. In the two subsequent years the defendant lived at another property owned by the defendant landlord Richard F. Blood tests done at the
time on the plaintiff showed elevated levels of lead,
resulting in a citation against the defendant Richard
F. by the Monroe County Department of Health. While
in the fifth grade, the plaintiff was classified by the
Webster School District as having a learning disability.
Volume 28, Issue 9, September 2011
The plaintiff has since reached adulthood, and argues that lead exposure has adversely affected her
cognitive ability and as a result, earning capacity.
The plaintiff filed a premises liability suit in the Supreme Court of New York, Monroe County. Named as
defendants in the petition were the landlords Charles
Stern and Richard F., at whose properties the plaintiff
had resided during the period in question. Damages
were sought for future economic losses as a result of
the plaintiff’s neurological condition.
The plaintiff showed at trial records of the lead paint
citation by the Monroe County Department of Health.
The plaintiff further brought expert testimony from a
neuropsychologist and pediatrician on the matter of
causation. The defendant Richard F. denied that the
plaintiff’s condition was caused by lead poisoning
and gave a number of alternative causes. The codefendant did not present at trial via representation
or in person.
After three hours of deliberation, a Rochester jury returned a $221,000 verdict for the plaintiff’s future economic losses, addressing the neurological
consequences of her lead poisoning and its effect on
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her future earning capacity. The jury found the defendant Richard F. 100% liable for the plaintiff’s
damages.
REFERENCE
Plaintiff’s neuropsychology expert: Michael Santa
Maria from North Tonawanda, NY. Plaintiff’s
pediatrics expert: Robert Arp from Brooklyn, NY.
Defendant’s neuropsychology expert: Shlomo Finnar.
Defendant’s psychology expert: James Borland from
New York, NY.
21
Ashley Hicks vs. Charles Stern & Richard Franco. Index
no. 015582/2008; Judge Matthew A. Rosenbaum, 0916-11.
Attorneys for plaintiff: Michael Ponterio, Neil
McKinnon, and Keith Vona of Lipsitz & Ponterio, LLC.
Attorney for defendant: Paul Garrity of Wilson, Elser,
Moskowitz, Edelman & Dicker LLP in Rochester, NY.
Attorney for defendant Richard Franco: Paul J. Bottari
of Wilson, Elser, Moskowitz, Edelman & Dicker LLP in
Rochester, NY.
DEFENDANT’S JUDGMENT
Premises Liability – Hazardous Premises – Plaintiff
hospital employee trips and falls on raised
basement tile floor of hospital – Defendant
contractor allegedly negligent in failing to detect
tripping hazard.
U.S. District Court, Eastern District of NY
The plaintiff hospital employee contended that as
she was returning from lunch in the hospital
basement with several co-employees when she
tripped and fell on a raised portion of the tile
floor in the corridor, suffering injuries to her knee
and spine. The defendant contended that because
it was a service contractor operating on property
owned by the employer, pursuant to an
agreement with the employer, it did not owe a
duty of care to a third-party such as the plaintiff.
The plaintiff countered that the defendant’s failure to
identify the defect and notify the employer resulted in
the launching of a force or instrument of harm on
which liability to a third-party beneficiary could be
based. The plaintiff further alleged that although the
defendant did not have an affirmative duty to inspect the premises for an unsafe condition, the defendant had a duty to become aware of unsafe
conditions that may cause others harm during its inspections. The plaintiff argued that in failing to be-
come aware and advise the hospital of the unsafe
condition, the defendant released an instrument of
harm.
The defendant countered that even assuming that it
failed to properly inspect the premises, the plaintiff
had failed to make any argument that its actions
launched a force or instrument of harm that could
render it liable. The defendant pointed out that the
plain terms of the contract required it to advise the
hospital of conditions of which it was aware. The defendant also pointed out that it would have a duty to
indemnify the hospital only if its negligence was the
sole cause of an incident, and denied that this provision could form the basis for a third-party beneficiary
claim.
The court concurred with the defendant’s position
and granted the defendant’s motion for summary
judgment.
REFERENCE
Weissman vs. Aramark. Index no. 09-CV-1221 (DLI)
(VVP); Magistrate Viktor V. Pohorelsky, 08-26-11.
Attorney for defendant: Frank D. Thompson, II of
Lewis Brisbois Bisgaard & Smith LLP in New York, NY.
PROPERTY OWNER LIABILITY
DEFENDANT’S VERDICT
Property Owner Liability – Alleged dangerous
garage door at single family rental home –
Plaintiff tenant lifts door with difficulty when the
door drops precipitously, resulting in her catching
it and raising it a second time – Alleged lumbar
herniation.
Erie County, NY
plaintiff, who parked on one side each day,
contended that she had no difficulties after
moving in until the day of the incident when she
encountered great difficulties elevating the door.
The plaintiff contended that she was ultimately
able to do so, but after she let go, the door fell
again. The plaintiff contended that she stopped it
and raised it again, but suffered severe back pain.
The plaintiff moved into the rental home with her
boyfriend approximately one month earlier and
there was a two car garage. Each door opened
independently and was not motorized. The
The plaintiff’s mechanic contended that the springs
were not properly balanced, resulting in the incident.
The defendant landlady denied that the plaintiff’s
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claims should be accepted. The defendant contended that the fact that there were no prior difficulties in the approximate one-month period since she
moved in lent significant support for her position, and
that she lacked notice of any dangerous defect.
The plaintiff related that after raising the door a second time, she placed a long stick on the side to keep
the door propped open and was able to drive away.
The defendant contended that the only stick visible
on the plaintiff’s photographs taken shortly after the
incident was a broom stick that was too short to use
to prop the door open sufficiently high to enable the
plaintiff to back out.
The plaintiff contended that she suffered lumbar
herniations requiring a discectomy. The plaintiff maintained that because the surgery was inadequate, she
scheduled fusion surgery. The evidence reflected,
however, that before the fusion was performed, the
plaintiff was involved in an MVA that caused cervical
herniations that rendered her a paraplegic.
This case was first tried in 1994, but was mistried by
the court just before going to the jury. The plaintiff obtained new attorneys who took it to the second trial.
$50,000 had been offered in 1994 and was still on
the table up to jury selection in second trial. The demand was for the $300,000 policy.
The jury found for the defendant.
REFERENCE
Plaintiff’s orthopedic surgeon expert: James
Egnatchik, MD from Buffalo, NY.
Lograsso vs. Myer. Index no. 010534/01; Judge
Deborah A. Chimes, 05-13-11.
Attorney for defendant: Laurence Behr of Barth
Sullivan & Behr in Buffalo, NY.
TRANSIT AUTHORITY LIABILITY
DEFENDANT’S VERDICT
Transit Authority Liability – Plaintiff subway patron
allegedly trips and falls on a broken area of
subway station floor – Comminuted fracture of the
left knee – Semi Patellectomy.
Kings County, NY
The plaintiff, who was in the station waiting for a
train, contended that after the train came into the
station, and as she walking to the train to board,
she fell on a defect on the platform, causing her
to fall partly into the train door. The plaintiff, who
testified through a Russian interpreter, related
that after the fall, other passengers brought her
into the train. The plaintiff contended that she was
later helped off the train and called the police and
an ambulance for help.
The plaintiff introduced photographs that she
claimed were the scene of the occurrence, showing
a major defect in the area of the platform near the
platform’s edge. The defendant denied that the
plaintiff tripped as a result of a defect. The evidence
disclosed that it was raining at the time of the incident. The defendant presented a police officer who
Volume 28, Issue 9, September 2011
testified that the plaintiff stated she fell in the train
due to a wet condition on the floor. The plaintiff denied this testimony was accurate, especially in view
of the language difficulties. The plaintiff also denied
talking to the police about how the accident
occurred.
The plaintiff suffered a comminuted fracture of the
left patella. The plaintiff contended that she required
a semi patellectomy, or excision of the half of the distal pole of the patella. The plaintiff maintained that
she will permanently suffer extensive pain and restriction and need a cane to walk.
The jury found for the defendant.
REFERENCE
Kleyman vs. New York City Transit Authority. Index no.
33678/08; Judge Mark I. Partnow.
Attorney for defendant: Mark S. Yagerman of Smith
Mazure Director Wilkins Young & Yagerman, PC in
New York, NY.
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23
Supplemental Verdict Digest
PROFESSSIONAL 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.
Karla Rosa vs. Anesthesia Associates of New London.
Case no. KNL-CV-08-5006331-S; Judge Emmet
Cosgrove, 05-13-11.
Attorney for plaintiff: Sean K. McElligott of Koskoff
Koskoff & Bieder, P.C. in Bridgeport, CT. Attorney for
defendant: Robert Cooney of Williams Cooney &
Sheehy in Trumbull, CT.
The matter was tried and at the conclusion of the
trial, the jury returned its verdict in favor of the plaintiff
and against the defendant. The plaintiff was awarded
the sum of $10,500,000 in damages.
The following digest is a composite of additional significant verdicts reported in full detail in our companion
publications. Copies of the full summary with analysis can be obtained by contacting our Publication Office.
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New York Jury Verdict Review & Analysis
24
SUPPLEMENTAL VERDICT DIGEST
PRODUCTS LIABILITY
$1,570,000 GROSS VERDICT - PRODUCT LIABILITY - DEFECTIVE DESIGN OF LADDER LADDER RETRACTS DURING USE - FALL TO GROUND - HEAD INJURY - TEN-DAY
COMA - WRONGFUL DEATH - 80% COMPARATIVE NEGLIGENCE FOUND.
Miami-Dade County, FL
This was a products liability action against the
manufacturer of a ladder from which the
decedent fell and sustained a fatal head injury.
The plaintiff alleged that the ladder was
defectively designed in that the side pins did not
lock properly, thereby causing it to retract under
the decedent’s weight. The plaintiff also alleged
that the defendant manufacturer was negligent in
the manner in which it manufactured the ladder.
The defendants in the case also included Home
Depot where the ladder had been purchased. The
defendants maintained that the accident was
caused by the decedent’s own negligence in
failing to properly lock the ladder before climbing
it.
ufacturer 20% negligent and the decedent 80%
comparatively negligent. The plaintiff was awarded
$1,570,000 in damages, which was reduced to a net
award of $314,000. Post-trial motions are currently
pending.
REFERENCE
Coba vs. Tricam Industries, Inc. Case no. 07-29041
CA 21; Judge William Thomas, 08-26-10.
Attorneys for plaintiff: Orlando D. Cabeza and Peter
L. DeMahy of DeMahy, Labrador, Drake, Payne &
Cabeza in Coral Gables, FL. Attorneys for defendant:
Jeffrey A. Mowers of Pyszka, Blackmon, Levy,
Mowers & Kelley in Miami Lakes, FL, and Paul Kaulus
(pro hac vice) in Chicago, IL.
The jury found that the ladder in question was not defective, but found that the defendant manufacturer
was negligent. The jury assessed the defendant man-
$1,500,000 VERDICT - PRODUCTS LIABILITY - FAILURE TO WARN - PLAINTIFF
SNOWMOBILE REVS ENGINE TO CLEAN SPARK PLUGS WHILE LIFTING END OF
VEHICLE - TRACK BREAKS AND STRIKES PLAINTIFF IN LEG - ABOVE-THE-KNEE
AMPUTATION - CASE PREVIOUSLY TRIED AND RESULTED IN AWARDS - DEFENDANT
REJECTS $900,000 ADDITUR AND CASE RETRIED ON ISSUE OF PAIN AND SUFFERING
ONLY.
Morris County, NJ
This case involved a 61-year-old plaintiff who was
visiting a friend in upstate New York for a
weekend of snowmobiling. The plaintiff
contended that the snowmobile was defective for
the failure to warn against the common practice
of cleaning carbon build up on the spark plugs
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
Volume 28, Issue 9, September 2011
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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25
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
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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New York Jury Verdict Review & Analysis
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SUPPLEMENTAL VERDICT DIGEST
The case settled prior to trial for $1,100,000.
Attorney for plaintiff: Ann Ball of A Ball PC in
Commack, NY.
REFERENCE
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.
Volume 28, Issue 9, September 2011
The case settled in 2010 for $1,500,000 from the
Postal Service and $500,000 from the co-defendant.
Magistrate Judge Patty Shwartz approved the allocation of the proceeds in February 2011 as follows:
$1,064,546 to the estate, $25,000 each to the decedent’s three children, and $25,000 on the Portee
claim. Plaintiff’s counsel relates that another $260,581
was used to satisfy liens that were reduced from approximately $1,000,000.
REFERENCE
Fogelson vs. U.S.A., et al. Docket no. 2:07-CV-01016ksh-ps; Judge Pamela Nadell, Esq. (mediator), 02-1011.
Attorney for plaintiff: Francis M. Smith of FM Smith,
PC in Mountainside, NJ.
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SUPPLEMENTAL VERDICT DIGEST
27
$1,480,000 VERDICT - PREMISES LIABILITY - FALL DOWN - PLAINTIFF EXITS
PASSENGER SIDE OF CAR IN CAR WASH - SLIP AND FALL ON SOAPY WATER CLOSED HEAD TRAUMA - MILD TBI - COGNITIVE DEFICITS - TEAR OF DOMINANT
ROTATOR CUFF - ARTHROSCOPIC SURGERY - CERVICAL HERNIATION - INDICATION
FOR SURGERY.
Kings County, NY
This case involved a plaintiff, in her mid 50s, who
was a passenger in a car that was brought to the
defendant’s car wash and who slipped and fell as
she was exiting the car. The plaintiff contended
that although the defendant should be required to
have the area for individuals exiting vehicles
delineated as behind the “zipper drain” that is
required to separate solvents from water before it
enters the water system, it did not do so because
of lack of space and that it should have placed
safeguards, such as rubber mats and/or warning
signs, immediately outside of the point patrons
would be exiting vehicles. The plaintiff maintained
that as she exited, she slipped and fell. The
plaintiff contended that she suffered a closed
head injury that caused a mild TBI manifesting in
headaches and extensive difficulties with memory
and concentration. The plaintiff further contended
that she suffered a rotator cuff tear to the right,
dominant shoulder that required arthroscopic
surgery and a cervical herniation for which
surgery is indicated.
The jury found the defendant 100% negligent and
awarded $1,480,000.
REFERENCE
Rogers vs. Hi-Tek United Corp. Index no. 014717/08;
Judge Kenneth P. Sherman, 02-04-11.
Attorney for plaintiff: Herbert Rodriguez, Jr. of
Schwartz Goldstone & Campisi, LLP in New York, NY.
$1,276,000 RECOVERY - PREMISES LIABILITY - HAZARDOUS PREMISES - ONE TON
LOAD OF PIPE FALLS ON PLAINTIFF FROM FORKLIFT - SEVERE CRUSH INJURIES AMPUTATION.
Bexar County, TX
In this action for active negligence and premises
liability, the plaintiff alleged that the defendants’
combined negligence caused him to incur severe
crush injuries necessitating amputation. The
defendants generally denied the allegations and
claimed that the plaintiff was guilty of contributory
negligence.
Ultimately, this matter settled at mediation with a
$1,276,000 recovery for the plaintiff.
REFERENCE
Edward Schmidtka vs. DPT Laboratories, Ltd.,
Greatwide Cheetah Transportation, LLC and Michael
McCurry. Case no. 2009-CI-13588; Judge Karen
Pozza, 01-28-11.
Attorneys for plaintiff Edward Schmidtka: Rudy A.
Garza and Stephen F. Lazor of Garza & Lazor, P.C. in
San Antonio, TX. Attorneys for defendant Greatwide
Cheetah Transportation, LLC and Michael McCurry:
Michael B. Langford (Pro Hac Vice) of Scopelitis,
Garvin, Light, Hanson & Feary, P.C. in Indianapolis,
IN, and Darrell F. Smith of Ball & Weed in San
Antonio, TX. Attorney for defendant DPT
Laboratories, Ltd., Defendant and Third-Party
Plaintiff: Jennifer Gibbons-Durbin of Allen, Stein &
Durbin, P.C. in San Antonio, TX. Attorney for
defendant DCI, Inc. (Third-Party Defendant): Mark S.
Strandmo of Brock Person Guerra Reyna P.C. in San
Antonio, TX. Attorney for defendant Gilbert
Industries, Inc. d/b/a GS Stainless (Third Party
Defendant): Sean M. Crowley of Thompson Coe
Cousins & Irons LLP in Austin, TX.
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28
SUPPLEMENTAL VERDICT DIGEST
ADDITIONAL VERDICTS OF INTEREST
Employment Law
$506,000 VERDICT - GENDER DISCRIMINATION - RETALIATORY DISCHARGE PLAINTIFFS CLAIM THAT DEFENDANT SUPERVISOR AND EMPLOYER DISCRIMINATED
AGAINST THE PLAINTIFFS AND RETALIATED AGAINST THEM FOR COMPLAINING
ABOUT THE DISCRIMINATION - FAILURE TO PROMOTE QUALIFIED PLAINTIFF OVER
LESS QUALIFIED MALE CANDIDATE - DEMOTION - ASSIGNMENT OF DUTIES LESS
THAN THOSE ASSIGNED TO MALE EMPLOYEES - FAILURE TO GIVE SUPERVISORY
RESPONSIBILITIES.
Suffolk County, MA
The plaintiffs, who worked for the defendant
district court probation office, one as an assistant
chief probation officer and the other as a
probation officer, contended that the defendants,
a chief probation officer and the court for which
he worked, discriminated against the plaintiffs on
the basis of gender and race. The plaintiffs and
three other female employees had previously filed
a written complaint against the defendant chief
and the probation office for racial and gender
discrimination and retaliation. A six month
investigation into the charges by the trial court’s
Affirmative Action/Equal Opportunity Office
resulted in a draft report substantially admitting
the allegations made by the plaintiffs.
The jury found no discrimination against the first plaintiff, but did find retaliation against her and awarded
her $6,000 in damages, as well as $500,000 in punitive damages. No discrimination or retaliation was
found against the second plaintiff and the jury
awarded her no damages.
REFERENCE
Brown, et al. vs. O’Brien, et al. Case no. SUCV200703552, 02-09-11.
Attorney for plaintiff: Beth R. Myers of Rogers,
Powers & Schwartz LLP in Boston, MA.
Fraud
$7,120,000 VERDICT - FRAUD - SHIPPING COMPANY IS SUED BY SHIPPING PARTNER
FOR FRAUDULENT INDUCEMENT.
Dallas County, TX
This multi-million dollar case saw the successful
suit of a global shipping firm by one of its
resellers. The reseller received over $7 million in
a verdict for fraudulent inducement and theft of
trade secrets. The jury additionally rejected the
defendant’s $28 million in counterclaims.
Worldwide Express Operations is a domestic
reseller of shipping services based in Dallas.
Worldwide Express, the plaintiff in this case, had
been in a nine-year contract since 1999 with the
defendant, DHL Express, acting as a sales force
for the defendant shipping company. The contract
was amended in the fall of 2008 to add an
additional two years to that contract. However,
the contract also involved the addition of a
termination clause. Said clause would allow DHL
to terminate the contract with only 90 days notice.
On November 10, 2008, less than 30 days after
the signing, DHL announced that it was
terminating its domestic shipping service and its
contract with Worldwide Express.
Worldwide Express filed suit in the 192nd District Court
of Dallas County for fraudulent inducement, naming
DHL as the defendant. DHL was accused of defrauding Worldwide Express by way of inducing them to
sign a contract for services they would have no fur-
Volume 28, Issue 9, September 2011
ther use for. Worldwide Express further accused DHL of
theft of trade secrets, specifically through solicitation
the plaintiff’s international customers.
On June 2, 2011, after nine trial days and a day and
a-half of deliberation, the jury returned a verdict for
the plaintiff, finding that Worldwide Express had been
induced to amend their contract by way of fraud.
The jury awarded $5.1 million for past and future lost
profits, as well as $2.02 million in damages for DHL’s
misappropriation of trade secrets. The jury further rejected DHL’s request for $28 million in damages for
breach of payment guarantee.
REFERENCE
Worldwide Express Operations LLC, et al. vs. DHL Express (USA) Inc. Case no. DC-08-15314; Judge Craig
Smith, 06-02-11.
Attorney for plaintiff: Geoffrey S. Harper, Steve
Stodghill, Timothy Devlin, Scott C. Thomas, and John
C.C. Sanders of Fish & Richardson in Dallas, TX.
Attorney for plaintiff DHL Express (USA) Inc.: Michael
H. Collins of Locke Lord Bissell & Liddell LLP in
Dallas, TX. Attorney for defendant Worldwide
Express Operations LLC: Tom Melsheimer of Fish &
Richardson in Dallas, TX.
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SUPPLEMENTAL VERDICT DIGEST
29
$500,000 COMBINED VERDICT - FRAUD - INTENTIONAL INTERFERENCE WITH
CONTRACT BY INSURANCE COMPANY - BREACH OF GOOD FAITH AND FAIR
DEALING - PRODUCTION OF BACK-DATED UM/UIM WAIVER FORMS - LOSS OF USE
OF INSURANCE FUNDS - EMOTIONAL DISTRESS TO TWO POLICE OFFICERS.
Philadelphia County, PA
This case involved allegations that fraud was
committed by the defendants, Bristol Township, its
insurance broker and several individual insurance
agents, involved in issuing the township’s
automobile insurance coverage. The plaintiffs
were two Bristol Township police officers who
were injured in the line of duty by an uninsured
driver. The plaintiff alleged that the defendants
committed fraud, as well as intentional
interference with contract and breach of their duty
of good faith and fair dealing by back-dating the
township’s UM/UIM waiver forms in an attempt to
prevent the plaintiffs from recovering uninsured
motorist benefits. The plaintiffs’ uninsured
motorist claims were settled after it was
discovered that the waiver forms had been backdated and were, therefore, invalid. The plaintiffs
sought economic damages for an 11 month delay
allegedly caused by the defendants’ fraud. The
plaintiff also sought compensatory damages for
emotional distress and punitive damages based
on the defendants’ actions. The defendants
argued that Bristol Township did not want UM/
UIM coverage and did not pay for such coverage.
After a trial of almost three weeks, the jury found
fraud, intentional interference with contractual relations and breach of the duty of good faith and fair
dealing against the insurance broker and two of its
employees. The jury awarded $250,000 to each
plaintiff for a total combined verdict of $500,000. The
award included $55,000 in economic damages and
$195,000 in emotional distress damages to each
plaintiff. The court dismissed the plaintiffs’ claim for
punitive damages. Post-trial motions are pending.
REFERENCE
Egan vs. USI MidAtlantic, Inc. Case no. 060703444;
Judge Gregory E. Smith, 03-16-11.
Attorneys for plaintiff: Mark W. Tanner and Peter M.
Newman of Feldman Shepherd, Wohlgelernter,
Tanner, Weinstock & Dodig, LLP, in Philadelphia, PA.
Attorneys for plaintiff: Gerald A. McHugh, Jr. and
Daniel Bencivenga of Raynes McCarty in
Philadelphia, PA.
Jones Act
$1,650,000 VERDICT - JONES ACT - ADMIRALTY - FAILURE TO MAINTAIN FISHING
VESSEL IN A SEAWORTHY CONDITION - TRIP AND FALL ON OIL - TORN ROTATOR
CUFF - RUPTURED LEFT BICEP TENDON.
U.S. District Court, District of MA
REFERENCE
In this admiralty matter, the plaintiff brought suit
under the Jones Act for injuries he sustained
when he slipped and fell as a result of oil on the
deck of the defendant’s boat. The defendant
denied the incident and disputed any liability to
the plaintiff.
James B. Crook vs. Warren Alexander d/b/a Hawk
Scallop Company, Inc. Case no. 1:09-CV-10682;
Judge Rya W. Zobel, 01-28-11.
Attorneys for plaintiff: Carolyn Latti and David
Anderson of Latti & Anderson in Boston, MA.
The matter was tried and the jury deliberated for a little over three hours before returning its verdict in favor
of the plaintiff and against the defendant. The jury
awarded the plaintiff the sum of $1,650,000 in
damages.
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SUPPLEMENTAL VERDICT DIGEST
Libel
$1,100,000 VERDICT - DEFAMATION - LIBEL - SON OF A TEXAS DEPUTY SUES
NEWSPAPER AFTER ARTICLE ACCUSES HIM OF BENEFITING FROM CORRUPTION DAMAGE TO PLAINTIFF’S REPUTATION.
Fort Bend County, TX
In this case, the plaintiff, 27, the son of a Chief
Deputy of the Fort Bend County Sheriff’s Office,
sued a local newspaper and one of its reporters
for defamation. The defendants denied that the
article was false and defamatory; they contended
that the article concentrated on public figures
rather than the plaintiff, and therefore did not
damage his reputation.
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 reputa-
tion, $20,000 in mental anguish damages, and
$1,030,000 in punitive damages ($30,000 against the
reporter, and $1,000,000 against the West Fort Bend
Star on a theory of “imputed malice”).
REFERENCE
Wade Brady vs. LeaAnne Klentzman and Carter Publications d/b/a The West Fort Bend Star. Case no. 03CV-129531; Judge Thomas R. Culver III, 05-06-11.
Attorney for plaintiff Wade Brady: Kinan H. Romman
of Ahmad, Zavitsanos & Anaipakos, PC in Houston,
TX. Attorney for defendant: John K. Edwards of
Jackson Walker LLP in Houston, TX.
Negligent Supervision
$1,750,000 RECOVERY - NEGLIGENT SUPERVISION - NEGLIGENT RETENTION OF
CONDOMINIUM COMPLEX EMPLOYEES - PLAINTIFF ATTACKED WITH ACID - FACIAL
BURNS AND DISFIGUREMENT - BLINDNESS IN ONE EYE.
Broward County, FL
This case involved a horrific and hateful acid
attack which left the female plaintiff disfigured
and blinded in one eye. The attacker was
sentenced to ten years in prison for aggravated
battery and was not a party to the civil action. The
plaintiff’s case hinged on the culpability of the
defendant homeowner association and property
management company for alleged negligent
supervision and retention of its employees. There
was alarming evidence that the plaintiff’s
husband, her assailant and their supervisor
routinely engaged in drinking sessions at work
and that extramarital sexual activity occurring at
the workplace was accepted, if not facilitated. The
defendants maintained that the attack upon the
plaintiff was not foreseeable and that it had acted
appropriately in terminating the attacker prior to
the incident.
Volume 28, Issue 9, September 2011
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.
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SUPPLEMENTAL VERDICT DIGEST
31
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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New York Jury Verdict Review & Analysis
32
NOTES
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Volume 28, Issue 9, September 2011
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