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Compensation for auto injuries reached a new high in New Jersey with a Hudson County jury’s $20 million award to the family of a woman whose three sons witnessed her death when a runaway tire crushed the roof of her minivan. After a 10-day trial, the jury awarded $5 million for the wrongful death of Annette Boryszewski, a 38-year-old teacher’s aide from Harrison, N.J., and $5 million to each of her three sons, who were passengers in the minivan. Lawyers who handle automobile injury cases say that the Nov. 9 verdict in Boryszewski v. Daimler Chrysler, HUD-L-9726-98, exceeds other automotive injury and automotive product liability awards in the state and that the sons’ damages exceed previous awards under Portee v. Jaffee, 84 N.J. Super. 88 (1980), the doctrine that affords compensation to those who observe a loved one’s death. The verdict, which still must withstand post-judgment motions and probable appeals, tops the $18 million verdict in 1996 in Green v. General Motors Corp., which was upheld by the Appellate Division, 310 N.J. Super. 507 (1998). In that case, an Essex County jury found that the car’s removal T-roof made it less crashworthy. The award is more notable still because Hudson County juries are not known for their generosity. “Sounds like a sympathy case,” says Amos Gern, of Starr, Gern, Davison & Rubin in Roseland, N.J., who represents plaintiffs in automobile injury cases. Indeed, most of the award reflects the jury’s assessment of the psychic injury to the three children under the Portee case, in which the state supreme court found that a mother was entitled to emotional distress damages after seeing her son trapped and killed in an elevator shaft. “I have never heard of a Portee case going for $5 million,” says Jack Wurgaft, who has represented plaintiffs making similar claims. Wurgaft, of Springfield, N.J.’s Javerbaum Wurgaft Hicks & Zarin, says that a client of his who witnessed her husband’s death in a car crash only got $100,000, even though she picked up his severed arm to hide it from sight of the couple’s children. “I have not heard of a seven-figure Portee case,” he adds. Glenn Zeitz, a solo practitioner from Haddonfield, N.J., who has represented plaintiffs and defendants in automotive product liability cases, says that emotional responses by juries, as in this case, may be a side effect of the best-practices rubric, which ended bifurcation of liability and damages phases in product liability suits. LOOSE LUG NUTS Boryszewski was killed on Aug. 5, 1998, on Route 280 in East Orange, N.J., when a wheel flew off another vehicle and crushed the roof of her Plymouth Grand Voyager. The oldest son, Matthew, now 18, testified that their mother was struck by the roof of the minivan and left unconscious. The vehicle hurtled out of control down the highway before coming to rest against the median barrier. Matthew testified that he checked on his mother and found she had a weak pulse. A state police investigation found that the wheel and tire that struck the minivan came loose from a Jeep Wrangler driven in the opposite direction by Cody Burke, now 24, of Glen Ridge, N.J. Because Burke’s tires were rotated a week before the accident and lug nuts were found to be loose on the remaining wheels of the Jeep, police concluded that North End Mobil, the Bloomfield, N.J., garage that rotated the tires, did a faulty job. Boryszewski named as defendants Burke, the operator of the garage that performed the faulty service, the owner and manager of the gas station where the garage is located and Exxon Mobil Corp., the owner of the service station property. Confidential settlements were reached with those defendants before trial, leaving only Daimler Chrysler in the case. Plaintiffs’ attorney Stuart Feinblatt, a partner with Sills Cummis Radin Tischman Epstein & Gross in Newark, N.J., focused at trial on the design of the header, a three-pound steel beam that supports the minivan’s roof over the front passenger compartment, which he argued was inadequate for a 4,000-pound vehicle. The company maintained at trial that the roof met applicable National Highway Traffic Safety Administration standards and that no roof, no matter how well designed, would have withstood the impact from the flying tire. Feinblatt argued that the federal roof-crush test is not a valid indicator of safety. The automaker was represented by Robert Hanlon of Edison, N.J.’s Hanlon & Lavigne and in-house counsel Julie Bonneville. Hanlon could not be reached, but his son and co-counsel, Robert Hanlon Jr., said their client did not want its lawyers to discuss the case publicly. Anne Smith, a spokeswoman at Daimler Chrysler’s headquarters in Auburn Hills, Mich., says the company will seek a new trial based on inconsistencies in the testimony of the plaintiff’s engineering expert. She calls Boryszewski’s death “a freak accident.”

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