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Two settlements totaling more than $6 million were struck this week in lawsuits brought by children who suffered brain injuries in car accidents in which a parent was driving. Although the parallels between the two cases are astonishing — including two well-known mediators with strikingly similar names — the legal issues were very different. In Rotola v. Black, attorney Robert W. Sink of Media, Pa., secured a settlement of more than $4 million for James Rotola who was 12 years old when he suffered extensive brain damage in a July 1999 accident in which his father made a left turn and was struck by a van. In Wharton v. United States, attorneys Robert Mongeluzzi and David Kwass of Saltz Mongeluzzi Barrett & Bendesky secured a $2 million settlement in a suit under the Federal Tort Claims Act for Steffane Wharton, whose mother is an IRS agent and was driving a rented car on IRS business at the time of the August 2001 accident. Both cases were set to go to trial very soon in federal courts in Philadelphia and Harrisburg and settled after mediation sessions — one before U.S. Magistrate Judge Thomas J. Rueter, the other before attorney Thomas Rutter of ADR Options. In the Rotola case, Sink filed suit against both the boy’s father, John Rotola, and the driver of the van, David Black. Black had $5.5 million in insurance, but John Rotola had a policy limit of just $25,000. In an interview, Sink said the risk of taking the case to trial was the possibility that a jury would find that the father was 100 percent responsible for the accident — a result that would have left his client with a recovery of only $25,000. But Black’s risk was also significant, Sink said, because the suit was filed before the law changed, and Black was therefore subject to joint and several liability. As a result, he said, if the jury found Black to be even just 1 percent responsible, he would have been liable for the entire verdict. And since James Rotola’s brain injury was a severe one that has left him incapacitated for life — never able to hold a competitive job and requiring an “assisted living” placement throughout his adulthood — the verdict could have been higher than $10 million, Sink said. Sink said the case was scheduled to go to trial in the Middle District of Pennsylvania before U.S. District Judge A. Richard Caputo. The settlement was reached after a nonbinding mediation before Thomas Rutter. Under the terms of the settlement, which must be approved by Caputo, Black will pay $4 million and John Rotola will pay $25,000. Black’s lawyer, Fred Buck of Rawle & Henderson, declined to comment on the settlement. In the Wharton case, Mongeluzzi and Kwass were facing a nonjury trial before Senior U.S. District Judge Jan E. DuBois in which they would have had the burden of proving that Wharton’s mother was negligent because she was speeding at the time of the accident. According to court papers, Steffane Wharton was in the back seat of a car driven by her mother, Kimberly Gunter, who was returning to Philadelphia from a conference in Atlanta. While traveling on Route I-85 in North Carolina, Gunter was driving behind a “wide load” mobile home and decided to attempt to pass it. But when she entered the left lane, Gunter saw that a tire had become dislodged from the trailer. In her attempt to avoid striking the tire, Gunter lost control of the car, which rolled over several times before coming to rest on the median barrier. During one of the rollovers, Steffane, who was 11 at the time, was ejected from the car and suffered serious injuries. Gunter admitted that she was driving at 70 to 75 miles per hour and that the speed limit was 55 miles per hour. If the case had gone to trial, it promised to be a battle of experts. The government’s lawyers, Assistant U.S. Attorneys Joseph Trautwein and Virginia R. Powel, argued in court papers that the government should not be held liable because Gunter could not have avoided the accident. Eyewitnesses, they said, testified that Gunter had no time to take any emergency maneuvers. “Confronted with an unexpected and terrifying event, Gunter reacted naturally as any reasonable person would. Under such circumstances, Gunter’s speed was not a proximate cause of the accident, and the government should not be held liable,” the government argued in its trial brief. As a result, they argued, the court should find that Gunter’s speed “was irrelevant” and that she “acted in a reasonable manner.” But the plaintiffs lawyers would have called expert witnesses who would have testified that if Gunter had been driving within the speed limit, she would have had up to 120 additional feet to react upon seeing the tire in the road ahead of her. A doctor for the plaintiff would also have testified that Steffane suffered a “global brain trauma” that will permanently impair her cognitive abilities and cause emotional and behavioral problems. But the government’s lawyers argued that Steffane has made “significant strides” in her recovery. Although the original prognosis was that Steffane would be a dependent child for the rest of her life and that she would never walk again, they said, the government’s medical experts now say that “there is no reason to expect that she would function less than independently in the future” and that she could complete college. In its trial brief, the government said that while Steffane’s choice of careers is limited by her physical deficits — weakness in her left hand and left leg — a medical expert for the government has concluded that she will have “a wide range of jobs available to her … and she should be able to earn a salary on the same level as her educational peers.” In court papers, Mongeluzzi and Kwass were demanding $10 million. In an interview, Kwass said the settlement talks began more than a year ago in a mediation before Rueter. When those talks failed to yield a settlement, Kwass said, the litigation continued, with both sides lodging objections to the other side’s experts. Kwass said DuBois recently held a Daubert hearing in which he listened to the objections and announced that he would reserve any ruling until trial because the case was a nonjury one in which the judge himself could decide whether to rely on any of the experts either during or after the trial. After the Daubert hearing, Kwass said, the lawyers returned to Rueter for renewed mediation talks that ultimately led to a $2 million settlement. Trautwein did not return a phone call seeking the government’s comment on the settlement.

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