A woman who was partially paralyzed after slipping on liquid that had leaked out of a milk crate has settled her case with the dairy company for $6.5 million.
The settlement in DiSalvio v. Cream-O-Land Dairy was reached four days into a retrial of the case. Last October, Philadelphia Court of Common Pleas Judge Lisa M. Rau declared a mistrial after discovering plaintiffs attorney Steven M. Mezrow’s law license had been suspended for failing to pay his annual registration fee and submit the requisite paperwork.
Plaintiff Dawn DiSalvio and her husband settled the case, which was in Philadelphia Court of Common Pleas Judge Frederica Massiah-Jackson’s courtroom, with defendant Cream-O-Land Dairy on June 10. Additional defendants Dansko LLC, Walking Depot and Sanita Footwear were dismissed from the case prior to the settlement.
Mezrow’s co-counsel, Michael O. Pansini, said that although “we were actually chomping at the bit to try this case to verdict,” the attorneys were satisfied with the settlement.
Pansini said Cream-O-Land initially offered “$3 million and they were pretty hard and fast about that number. We thought that although the case had significant liability problems and issues, this was a woman who was catastrophically injured and we were going to do everything possible to reach a number that was acceptable.”
Mezrow, whose license was restored shortly after the mistrial was declared, said he and Pansini felt “vindicated.”
After Rau’s ruling, “We immediately sent a courier driving as fast as he could to hand-deliver” the renewal fee to Harrisburg, Mezrow said, “and they told us within an hour and 20 minutes of him leaving Philadelphia that I’d be reinstated.”
Cream-O-Land’s defense counsel, John J. Snyder and Tara Gill Nalencz of Rawle & Henderson, did not return calls seeking comment.
According to the plaintiff’s pretrial memorandum, DiSalvio was a cafeteria worker at Lower Merion High School at the time of her injury Jan. 30, 2008. That morning, Cream-O-Land had made a large delivery of drinks to the walk-in refrigerator in the school’s cafeteria.
After the delivery had concluded, DiSalvio was in the refrigerator reaching to pull drinks off the crates when she slipped on liquid that had allegedly leaked out of the containers. Court papers said there was no liquid on the floor prior to the delivery.
The fall caused a severe spinal cord injury that has permanently confined DiSalvio to a wheelchair and limited her mobility, according to court papers. DiSalvio also suffers from chronic pain, neurological impairments, incontinence and depression as a result of the accident.
The driver who made the delivery for Cream-O-Land testified that he and the company were aware that containers can be damaged during their packaging and subsequent stacking of crates, and that it was his job to ensure that no leakages existed, court papers said.
The plaintiff’s liability expert, Sterling Anthony, explained, “Industry practice requires that the delivered product be inspected to assure that there is no leakage prior to the delivery personnel’s leaving the customer’s location,” court papers said. “Cream-O-Land failed to comply with those industry standards, which created the hazard which resulted in Dawn DiSalvio’s accident.”
DiSalvio spent a total of 73 days in the hospital for treatment and has received dozens of epidural steroid injections. Court papers said due to the nature of her injuries, DiSalvio would not be able to return to any form of job involving physical labor.
Economist Andrew Verzilli gave the opinion that, accounting for lost earning capacity and DiSalvio’s life care plan, total damages were roughly $10.5 million, according to court papers.
Cream-O-Land’s pretrial memorandum noted that the plaintiff’s and eyewitness’s accounts of the accident differed and that no one at the school complained about a leakage from the crates.
“Cream-O-Land Dairy LLC was not negligent in the manufacturing, handling or delivery of their products and Mrs. DiSalvio’s injuries are not a result of her accident on Jan. 30, 2008,” defense papers said. “No leaking or defective product has been identified or can be identified by Mrs. DiSalvio. Further, no acceptable condition or leaking was noted at the time of delivery. Mrs. DiSalvio did not fall until two hours after the delivery.”
Additionally, defense papers said DiSalvio testified to not knowing why she didn’t check for leaks emanating from the crates.
Cream-O-Land added that DiSalvio’s prior medical history of morbid obesity; gait dysfunction; problems with her right knee; and carpal tunnel, hip and back pain are factors that could have contributed to her fall.
“The mechanism of injury was most likely as a result of her right knee giving way due to osteoarthritis and obesity,” defense papers said.