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Driver, Passenger to Receive $2.4M For Injuries in Head-on Collision Shankle v. Wood and Tupper v. Wood A driver and passenger injured in a head-on car collision will receive $2.4 million in settlements reached on Jan. 19 with the other driver. The accident occurred on Sept. 17, 2002, on Oceanport Avenue in Oceanport. The car driven by Lee Roy Shankle, 73, of Waynesville, N.C., collided with one driven by William Wood, 82, of Oceanport, which had strayed across the double yellow line into Shankle’s lane, according to the police report. Shankle’s lawyer, Judson Barrett of Ocean Township’s Barrett & Pavluk, says his client suffered fractures of the pelvis and right foot and leg that required lengthy rehabilitation and hip and knee replacement surgery. Shankle’s passenger, Sandra Tupper, 54, of Little Silver, suffered leg and hip fractures and also needed surgery, says her lawyer, Martin Arbus, of Ocean Township. Barrett says that there was no dispute about liability and that the settlement represents all but $100,000 of Wood’s coverage, a $500,000 policy by Selective Insurance Co. and a $2 million excess policy by the Chubb Group. Under the settlement, reached before a trial date was set, Shankle will receive $1.625 million and Tupper will receive $775,000, their lawyers say. Wood’s lawyer, Louis DeMille Jr. of Trenton’s Romando, Astorino & DeMille, confirms the settlement amount. � By Henry Gottlieb $1.2M for Workplace Injury Royer v. North River Mews A contractor who broke his knee installing a fence around a construction site agreed on Jan. 21 to accept $1.2 million from the site owner and various contractors. The settlement was reached two and a half weeks into trial before Hudson County Judge Camille Kenny, immediately before summations. Craig Royer of Ridgefield, a fencing supplier, was contracted in 1998 to fence off the sidewalk around a demolition site in Edgewater. Eleven buildings had been torn down, leaving a large hole about 40 feet deep, says his lawyer, Paul Faugno of Faugno & Associates in Hackensack. Royer was unable to see that the demolition had undermined the sidewalk, which hung unsupported over the side of the hole, Faugno says. In attempting to install a permanent fence on the sidewalk, the paving gave way and Royer tumbled into the hole, breaking his fibula. The other contractors had not warned Royer of this danger, Faugno says. Royer required knee replacement surgery, an operation that may have to be repeated. The injury also prevents him from doing the hard labor required by his fencing business. Royer was also represented by Paul Cecere of Rogan & Associates in Hackensack. There were five defendants: North River Mews of Edgewater owned the land and was the demolition contractor, and was represented by associate Janet Pisansky of Morristown’s Addas, Berlin, Kaplan, Dembling, Burke & Potenza; she did not return a call at press time. General contractor Assad Y. Daibes & Sons and its parent, Daibes Bros. Inc. of Bayonne, were represented by Robert Kretzer of Lamb, Hartung, Kretzer, Reinman, & DePascale in Jersey City; he declined comment. Crain Mackroyce Joint Venture of Bayonne, a demolition company, was represented by Brian Harris of Braff, Harris & Sukoneck in Livingston. “The plaintiff clearly ran the risk of a no-cause for action and alternatively the defendants, because of the sympathy engendered by his injuries, ran the risks of an award, so a compromise was reached,” Harris says. Each partner in the joint venture also had separate counsel. Crain Construction of Jersey City was represented by Mark Vespole of Tressler, Soderstrom, Maloney & Priess in Newark; he did not return a call at press time. Mackroyce Dismantling of New York was represented by Charles Carey of Dwyer, Connell & Lisbona in Fairfield. “As an individual defendant they had no liability, therefore I made no offers throughout the entire trial and we did not contribute to the settlement,” Carey says. Daibes paid $587,500 of the award, the joint venture $587,500, North River Mews $35,000 and Crain $25,000, Faugno says. Mackroyce individually was allowed out of the settlement. Daibes was insured by The Hartford; Mackroyce was insured by Legion Insurance Co.; North River Mews was insured by Reliance; Crain and the joint venture were insured by Carlyle Insurance Co. � By Jim Edwards No Cause in PPA Suit Kronfeld v. Novartis Consumer Health Inc. A Middlesex County jury found a drug maker not liable on Jan. 16 in a products liability suit against Novartis of East Hanover over medication containing phenylpropanolamine (PPA). Rosemary Kronfeld of Moline, Ill., claimed that Tavist-D sinus medicine, which she took twice a day for more than a year, caused her to suffer a hemorrhagic stroke at age 44 in April 1998 and that the drug maker gave inadequate warning of its dangers. Tavist-D and other drugs with PPA — an additive linked to strokes — were taken off the market in 2000 but later reformulated without PPA. Since her stroke, Kronfeld has been confined to a wheelchair and suffers cognitive impairment. The defense countered that the stroke was more likely caused by her chronic high blood pressure and that she disregarded a warning on the Tavist-D package against people with hypertension taking the medication. The trial was the first among about 250 PPA-drug suits consolidated with Superior Court Judge Marina Corodemus in Middlesex County. The case was tried by Judge Bryan Garruto. The parties stipulated that if the jury decided for the plaintiff, Novartis would pay $1.1 million for a life-care plan and $186,000 for unreimbursed medical costs. But the jury no-caused after a three-month trial and 90 minutes of deliberation. Kronfeld was represented by Jerry Kristal, an associate at the New York firm of Weitz & Luxenberg. Kristal says the jury’s finding that the drug was not defective is puzzling and appears contrary to trial testimony, but he says no decision has been made on whether to appeal. Novartis’ lead counsel was Gita Rothschild, a partner at McCarter & English in Newark. She was joined by McCarter & English partners John Brenner and Nathan Schachtman, as well as James Herschlein, a partner in the New York firm of Kaye Scholer. � By Charles Toutant $500,000 for Diving Injuries Fuentes v. Garcia A man paralyzed by a dive into a shallow, above-ground swimming pool agreed to settle his claims for $500,000 on Jan. 14. American Pool & Spa will pay $350,000 to Wilson Fuentes. Clara Garcia of Kearny, his sister-in-law and the pool’s owner, will pay the other $150,000. American Pools, based in California, was the successor in interest to Poseidon Pools, which manufactured the Garcia pool in 1988 but went bankrupt in 1991, says Fuentes’ lawyer, Douglas Burgess. The settlement was smaller than might be expected for such an injury because when American Pools bought Poseidon’s assets in a bankruptcy sale, the agreement stated it did not acquire the liabilities, says Burgess, a partner with Newark’s Cary & Icaza. Fuentes, then 38, was injured at a Fourth of July pool party in 1997 when he dove from the pool deck through an inner tube and hit his head on the bottom of the 3-1/2-foot deep, above-ground pool, breaking his C-5 and C-6 vertebrae. He was hospitalized for about a month, spent another two months at Kessler Rehabilitation Institute and has since lived at Roosevelt Care Center, an extended care facility in Edison. He has some use of one arm and hand but is otherwise paralyzed, and confined to a wheelchair. He is a quadriplegic, requiring round the clock care. Fuentes sued under negligence and strict liability theories, claiming that the 16 printed “Do Not Dive” warnings were inadequate because they were printed in white on the white moldings of the pool joints, were not visible from the deck and did not warn of the risk of paralysis. Large colored pictographs, featuring a diver with a slash, were adopted as American National Safety Institute standards in 1991 and should have been used on the pool, argues Burgess, noting that Fuentes is dyslexic. The defendants contended that the warnings were adequate and that Fuentes was at fault for making the dive because he had used the pool many times before and knew how shallow it was and had seen the warnings. They also faulted Fuentes because he had been drinking beer that day and, a month earlier, had stopped taking the lithium medication prescribed for his bipolar condition, according to Burgess. American Pools’ lawyer, William Gannon, of Florham Park’s Ryan & Gannon, says the pool manufacturer provided larger, more conspicuous “No Diving” signs that were not posted at the time of the accident. Trial began before Middlesex County Judge Mark Epstein on Jan. 12 and the case settled the next day. The settlement also resolves the per quod claim of Fuentes’ wife, Jennie, of Hillsborough, but does not pay anything to her. Jennie was represented by Hillsborough solo practitioner Henry Rzemieniewski, who confirms the settlement. Garcia’s counsel, Edward Thornton of Edison’s Methfessel & Werbel, confirms the settlement. He also notes that there was a videotape of the dive that he would have tried to use at trial. � By Mary P. Gallagher

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