Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The article below misquoted plaintiff’s lawyer David Mazie as saying that when he took over the case from a previous lawyer, Rosemarie Arnold, the file included 15 depositions totaling 60 pages. In fact, he said it included 15 depositions of which 60 pages were questions. Secondly, the article incorrectly described Arnold’s arguments on whether she should be replaced as counsel. The plaintiff’s parents sought to disqualify her. Arnold continued to participate in the case. Arnold asked a judge to remove the plaintiff’s mother as guardian on the grounds of mismanagement. The judge appointed a new guardian, who replaced Arnold. The New Jersey Law Journal regrets the errors. Two weeks after a paralyzed drunken-driving victim won a $105 million verdict against Giants Stadium concessionaire Aramark, dueling sets of plaintiffs lawyers are girding for a fight over the size of their fees. A coverage dispute among insurers also is possible. The company’s vow to appeal has caused the spotlight to shift from the record award and the wheelchair-bound victim to some of the trial judge’s rulings and the bizarre behind-the-scenes twists in the litigation’s five-year history. On Jan. 20, a Bergen County, N.J., jury awarded Antonia Verni and her family $30 million in compensatory damages from Aramark and $75 million in punitives after hearing evidence that Aramark sold beer to a visibly drunken Giants football fan at a 1999 game. That made the company liable for half of Verni’s damages in a crash with the fan after the game, the jury found. The girl’s father, Ronald, called the verdict a warning to the sports industry to clean up a culture of intoxification that condemned his 7-year-old daughter to paralysis and a respirator. Others in the case include: � The New York Giants, the National Football League and the New Jersey Sports and Exposition Authority. After the Giants argued it had no liability and club president John Mara testified he had no knowledge of drunkenness at games, the three so-called football defendants settled for $700,000 and took pains to keep the deal confidential. � The original counsel for Antonia, Rosemarie Arnold of Fort Lee, N.J., who worked on the case for four years but was ousted last spring after a dispute with the Vernis. Arnold says she could have won a $105 million verdict, too, and deserves a share of the plaintiffs’ fee award. Her successor, winning lawyer David Mazie, calls her work on the case ineffectual at best and says he will oppose any claim she makes on Aramark’s money. � Aramark and two of its insurers. Even before the verdict, they signaled there was a dispute over who would be responsible for any award. The dispute could center on a crucial question: Who opted not to leap at Mazie’s offer to settle, perhaps for only $20 million, before trial? � Bergen County Superior Court Judge Richard Donohue. For its appeals, the defense is targeting a host of his pro-plaintiff rulings before and during trial, including his bar to evidence that Antonia might have escaped injury if the Vernis had put her in a car seat, not a seat belt. � The defense team. Aramark has not said it is dissatisfied with the firm that lost the case, Livingston’s Braff, Harris & Sukoneck. Last week, nevertheless, Aramark turned to a lawyer used to major matters, Michael Rodburg, the managing partner of Roseland’s Lowenstein Sandler, to work on appellate issues. SORORAL DISPUTE Within days of the Oct. 24, 1999, accident in Hasbrouck Heights, N.J., Ronald Verni turned to Rosemarie Arnold’s high-volume personal injury practice to bring suit. Verni says he had dealt with Arnold’s sister and associate, Elizabeth Arnold, on a workers’ compensation matter and that she was his contact at the firm throughout the Aramark case. Elizabeth Arnold was newly admitted and everyone understood that Rosemarie would be doing the work. Even so, Verni says now that he never met Rosemarie Arnold until years into the case. Because he was also a defendant, as driver of the family car in the accident, Verni had his own lawyer, Christian Stueben, a Fort Lee solo who has worked with Arnold on several multiparty cases. Arnold filed a complaint on Dec. 14, 2000, that included most of the possible defendants: Daniel Lanzaro, the drunken driver of the car that hit the Vernis; the Giants; the Sports and Exposition Authority; Aramark; and premises in Carlstadt, N.J., and East Rutherford, N.J., where Lanzaro allegedly drank after the game. Lanzaro was sentenced to five years in prison for vehicular assault, and Arnold filed six amended complaints with no trial in sight. The family collected $115,000 from Ronald Verni’s coverage, but with Antonia’s long-term prognosis bleak, the Vernis were anxious about the slow progress. It was about to get slower. In late 2003, a war broke out between the family and their lawyer, creating a sideshow of litigation that overwhelmed the fight against the defendants. Elizabeth Arnold had left the firm and Verni decided he wanted Rosemarie out of the case. (The two sisters are now suing each other over the disengagement.) Verni even filed a pro se suit against her, but she refused to bow out, arguing that she was working for Antonia’s interests and the parents were not. The dispute ended up before Bergen County Superior Court Judge Isabel Stark. According to Arnold’s pleadings, the Vernis sought her removal in retaliation for her honesty in informing Stark that the Vernis had spent $70,000 of Antonia’s settlement on a condominium. Don’t oust me, Arnold argued to Stark, oust Mrs. Verni for mismanagement. The Vernis argued that they had never been told such a purchase violated any rules of guardianship and that they had obtained the condominium to house extended family members providing round-the-clock care for Antonia. As the dispute simmered, the Vernis exercised their right to have a new lawyer, at least for Antonia’s mother, Fazila. They approached at least five lawyers, until they called Verni’s old school chum and Little League teammate, Thomas Novak, of Sills Cummis Epstein & Gross in Newark, N.J. Novak says the firm decided not to take the case and he referred it to Mazie, of Roseland’s Nagel Rice & Mazie. WELL-TOOLED REPLACEMENT Last May, a new judge, Joseph Yannotti, finally put the tangled case back on track. He replaced Fazila as guardian with a pillar of the New Jersey legal community, former state Sen. Albert Burstein, of Hackensack, N.J.’s Herten Burstein Sheridan Cevasco Bottinelli Litt Toskos & Harz. Burstein, rejecting Arnold’s plea to stay on, hired Mazie to take on the whole case. Mazie had the experience and the backup. His firm has handled numerous complex commercial and injury cases. His own victories include a $2.7 million award in 2002 to the family of Earl Faison, who died in Orange, N.J., police custody while being grilled about a murder he did not commit. “I was impressed by the way he handled himself,” Burstein says of Mazie, whom he did not know beforehand. Given the verdict, he adds, “My first impression was a good one.” Mazie says that when he inherited the file, it included 15 depositions totaling 60 pages. Between his retention by Fazila in March and the start of trial in December, he took 50 depositions covering thousands of pages and lined up nine witnesses. Mazie says his firm also paid more than $200,000 in litigation costs before the trial, in comparison with the $55,000 Arnold spent between October 1999 and May 2004. According to a schedule Arnold filed in August, her costs included $11,000 in fees to a lawyer she consulted during the dispute with the Vernis. She included $4,400 for the purchase of a 1999 Toyota to be used as an exemplar in a product liability claim she had included against the manufacturer of the Verni’s car. Toyota settled the claim before trial for $190,000, adding to the Vernis’ recovery, but Mazie says the case against Toyota is not an example of thoroughness but a sign of blurred focus on the main target, Aramark. “It was a shambles,” he says. “They treated it like a run-of-the-mill accident case.” Original co-counsel Stueben says Mazie is understating their contribution and that he and Arnold deserve credit for work and for advancing the theories of liability that eventually proved fruitful. “We themed it,” he says. Arnold says she isn’t thinking about fees but only about the wonderful outcome for Antonia. “It’s not about my fee and it’s not about Mazie’s fee; it’s about what Antonia Verni can get out of this,” she says, though insisting she could have done as well if she had stayed on. BAD-FAITH ALLEGED That sum is on the record: $105 million, plus about $5 million in interest, barring successful appeal or settlement. Who pays may be in dispute. According to lawyers familiar with the coverage, the company’s primary liability policy called for $1 million coverage from Reliance Insurance Co. of New York. The carrier went bankrupt, so the Property Liability Insurance Guaranty Fund is responsible for the first $300,000 and Aramark for the remaining $700,000. Royal & SunAlliance of Charlotte, N.C., is the first excess carrier, to the tune of $1 million; AIG of New York is responsible for the next $25 million chunk, and Royal & SunAlliance comes back again with another $25 million. With the total exposure to the carriers for compensatory damages pegged at $30 million plus interest, AIG’s $25 million would be exhausted and the rest taken out of Royal & SunAlliance’s $25 million. Royal & SunAlliance is apparently not happy. On Dec. 10, during a lull in the trial, Royal & SunAlliance outside counsel Christopher Clarke, of New York’s Leahy & Johnson, accused AIG of bad faith for not settling within the limits of its $25 million policy, opening Royal & SunAlliance and Aramark to exposure. Clarke said Royal & SunAlliance had learned belatedly that Mazie had signaled willingness through Donohue before trial that he would take $20 million. Now, Clarke said, it was too late, because Mazie, confident about his case, had upped the demand to $47 million. At the hearing, John McDonough, an AIG claims representative, disputed there had been a firm commitment by the plaintiff to settle for $20 million. But Mazie insisted that he would have taken it, and the judge reminded everyone that the highest defense offer had been $3 million. Royal & SunAlliance’s intervention preserved the carrier’s right to initiate declaratory judgment litigation aimed at making AIG pay the entire compensatory award over $2 million for not settling. It is an open question whether AIG would also be responsible for the punitive damages. Under New Jersey case law, punitive damages are not insurable as a matter of public policy; the defendant pays. But insurance law also says carriers who don’t settle in good faith can be held responsible for damages beyond their coverage. Would a carrier be liable for uninsurable punitive damages that would have been avoided had the compensatory claim been settled for the policy limits? Lawyers for the two carriers either declined to comment or did not return calls last week. Aramark general counsel Bart Colli referred a call to a corporate spokeswoman who declined to comment. That was not the general counsel’s only referral. Colli, a former partner in Newark’s McCarter & English, hired a Harvard Law classmate, Lowenstein Sandler’s Rodburg, to consult on substantive appeals issues. Rodburg said the firm has just begun the inquiry, so it’s too early to comment on possible grounds. Trial counsel Brian Harris said right after the verdict, though, that an argument could be made that the judge erred when he refused to allow expert testimony that Antonia’s injuries were caused by her placement in a seat belt, not a car seat. In a tragic twist, Antonia had been in a car seat earlier in the day, but she vomited in it and the Vernis seat-belted her. Defense evidence suggested that a car seat would have protected her from the impact that paralyzed her and that the belt, designed for adult use, exacerbated the injuries. The judge barred the testimony after Mazie argued that N.J.S.A. 39:3-76 prohibits the use of such child restraint evidence for use in comparative negligence determinations. Six lawyers who represented clients in the case but are now on the periphery, including defense lawyers, say they hope it does not come to an appeal and that the parties hammer out a global settlement. With so much at risk, Aramark and its insurers could save a huge amount by settling and still provide more than enough for Antonia’s comfort and care, these lawyers say. Mazie and the defense won’t talk about settlement now, as they prepare for a March return date on motions for a new trial and remittitur. If nothing else, the case shows why the debate over statutory ceilings on pain and suffering awards is so fierce. Aramark would be off the hook for $7.25 million of the verdict if there had been a $250,000 cap on such awards, as tort revision advocates have proposed. “You look at that little girl facing what Antonia is facing and tell me $250,000 covers her pain and suffering,” Mazie says.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.