In the summer of 2007, Zachery Cohn was swimming in his family pool in Greenwich when he ventured near the pool’s drain. The suction created by the drain trapped the 6-year-old boy’s arm and he couldn’t escape. His father jumped in to try to save him, but he couldn’t pry the boy loose.
Zachery died in his father’s arms, his head just a few feet below the water’s surface. The family would learn that dozens of other people nationwide have died in similar accidents. The boy’s mother, Karen, didn’t want it to happen again. She vowed to use any money collected from lawsuits to launch a ZAC Foundation for advancing water safety.
Now there will be plenty of money to fuel the foundation. In late April, the family’s lawyers, from Silver, Golub & Teitell in Stamford, announced $40 million in settlements with a host of defendants, ranging from the company that sold them the pool to the town inspectors who approved it for use.
"Parents say I don’t want it to happen again," said attorney Ernest Teitell. "But it happened again. It happened to the Cohns. Karen said I don’t want this to ever happen again and is putting her money where her mouth is….
"That’s what’s so unique about this case," said Teitell. "What this case is about for them is the achievement of a well-funded foundation to tackle water safety nationwide… One of the things they’re doing is they’ve created these camps to teach kids, underprivileged kids, to swim."
Teitell said the litigation, including settlement discussion, has been ongoing for four years. The law firm settled with the last defendants, for a total of $25 million, in late 2012.
Also part of the settlement is the requirement the defendants perform public service. The swimming pool company, Shoreline Pools, must inspect older pools and make safety updates. The town of Greenwich has agreed to host, for the next few years, free workshops at which pool owners will be brought up to date on safety issues and the building code.
"It’s things along those lines designed to save lives of children," said another of the plaintiffs’ lawyers, Paul Slager. "It’s not simply a matter of dollars and cents. It’s a matter of making the community safer in a very direct way and that was really important to us as lawyers as well, to feel like there was very serious, earnest steps taken to improve pool safety to avoid a terrible tragedy like this down the road."
The lawyers explained that the Cohn family has enough financial security to not take any of the settlement proceeds for personal use. Brian Cohn formerly worked for SAC Capital as a successful hedge fund president, but he left after his son’s death because he was unable to devote himself to the job given his emotional state.
Peter Dreyer, another plaintiffs’ lawyer, explained that Zachary was an excellent swimmer, as good as most children twice his age. But Dreyer said a plastic cover that protects the drain came ajar and Zachary’s arm got caught, up to the elbow inside it. Brian Cohn, fully dressed, ran out from the upstairs bedroom and jumped in the pool to try to pull Zachary out. He was unsuccessful.
Eventually Karen Cohn turned the circuit breaker off in the basement, which eventually shut the motor off to the suction drain in the pool. Emergency responders tried to resuscitate Zachary but it was too late. "A really tragic case where a father’s son died in his arms from a hidden danger that the family was completely unaware of," said Dreyer.
But the death was not unprecedented. Indeed, according to Silver Golub lawyers, the Consumer Products Safety Commission has learned of more than 150 reported cases of swimming pool suction entrapment since 1985, including at least 48 reported deaths and many serious injuries. Experts say the number of deaths may be much higher, because police and medical records don’t always list specific causes for drowning.
Nor was it unusual that Brian Cohn couldn’t pull his son free. Contact between human skin and a flat pool drain can create suction equal to hundreds of pounds of pressure. In one other reported instance, four adult men were unable to pull a young girl from a deadly drain.
In 2004, the Connecticut State Building Code was amended to include certain design and equipment requirements to reduce or eliminate the suction hazard.
The codes required pool intake drains to be built in pairs so that if one were obstructed, powerful suction pressure would not build up. Another provision required installation of a safety vacuum release system (SVRS), to automatically shut off the pump if the drain is obstructed. The Cohn pool was not in compliance with either provision.
Also, in the weeks before the accident, Shoreline Pools had reportedly been notified that the drain cover was loose. Employees returned several times to conduct maintenance but did not fix the loose drain cover. It was found at the bottom of the pool the day Zachary died.
The state of Connecticut sought criminal charges against Shoreline Pools and David Lionetti, its CEO. In 2011, Shoreline Pools pleaded guilty to second-degree manslaughter and Lionetti pleaded guilty to criminally negligent homicide. Lionetti agreed to a one-year suspended sentence with three years of probation, 500 hours of community service, and a public service project that requires him and Shoreline Pools to repair 100 area pools to comply with all legal requirements and building codes.
Shoreline Pools settled the Cohns’ civil suit for $11 million.
Settling for $2 million in October 2010 were the professional engineers  who helped build the pool, Robert Frangione and his employer, S.E. Minor & Co. Aberdeen Properties, the general contractor for the Cohn’s house and pool, also settled for $2 million.
Then in October 2012, Hayward Industries and A.O. Smith Corp. settled products liability claims for $15 million following mediation in Massachusetts. Hayward Industries made the drain pump and cover, while A.O. Smith Corp. manufactured the motor in the pump that did not shut off when Zachary’s arm got caught inside the drain.
The last defendant to settle, in 2012, was the town of Greenwich, which will pay $10 million. The town’s building inspectors had approved the Cohn pool design and construction, all the while unaware that the state two years had amended its pool safety codes.
"The case, even though it was stemming from one wrongful death, was a case that was almost like five or six different lawsuits all going on at one time," said Dreyer. "We did about 100 depositions, which is the most our firm has done in a case and probably more than many firms have ever done in a case."
Dreyer said the Silver Golub hired about a dozen expert witnesses who could have testified to liability, bystander emotional distress and damages. The firm’s lawyers traveled around the country working on the case, going everywhere from California to Florida and places in between. Many of the defendants were represented by national law firms.
"It was not an easy case to settle. At the outset early on, there were efforts to effect a global settlement for all the parties," said Dreyer. He said, however, that global settlements can be difficult to achieve. For example, he said, with so many defendants, no one wants to be the first to settle, worried they might pay more.
"Personality reasons [are] why it’s tough to do a global settlement," said Dreyer. "So we tried to figure out the blocks of cases we could try individually and keep those defendants together."
Dreyer said the firm expected to go to trial with at least one of the defendants and that the Cohn family was interested in having a high-profile trial to raise pool safety awareness. However, when the town of Greenwich was the last remaining defendant, the two sides reached a settlement during jury selection and avoided a trial. The case had been on the Stamford Complex Litigation Docket.
"It was a very all-consuming case," said Slager. "Obviously there were sophisticated lawyers on the other side… it was very challenging. The thing that motivated us throughout it was that it was such a tragic incident, the family was so injured, it was easy for us to stay motivated."•