A Passaic County jury delivered a $3.1 million verdict on Feb. 1 in a medical malpractice suit, Estate of Dalessandro v. Siegel, claiming diagnosis of Vincent Dalessandro’s gastric cancer was delayed by five months. But the award was reduced by 15 percent, to $2.635 million, based on the chance that the outcome would have been the same even with an earlier diagnosis, as permitted under the 1990 Supreme Court ruling in Scafidi v. Seiler.
Dalessandro saw physician Harvey Siegel in May 2013 after he began suffering anemia. Dalessandro was diagnosed with stomach cancer six months later. The suit claimed that Siegel should have immediately referred the patient to a gastroenterologist for an endoscopy but failed to do so. By the time cancer was diagnosed, it had spread to the patient’s liver. Dalessandro underwent chemotherapy but died two years and five months after his diagnosis. He was 44.
According to the estate’s lawyer, Dennis Donnelly of the Donnelly Law Firm in Summit, at deposition and at trial, Siegel disputed liability. Although his records did not show a plan for referral to a gastroenterologist, he claimed he had urged Dalessandro to see one and warned of the risks of not doing so. The doctor’s records showed he told the patient to take iron pills and to return in a week for blood work, but in a video recording of a discovery deposition that was played for the jury, Dalessandro said he received no advice about seeing a gastroenterologist, Donnelly said. Dalessandro was diagnosed after he collapsed while attending his son’s hockey game, Donnelly said.
The defense argued that Dalessandro’s conviction for second-degree theft five years earlier, which was admitted into evidence, should be considered for impeachment purposes, Donnelly said. The defense also claimed Dalessandro’s alcoholism should be considered an avoidable consequence, he said. The jury was given a chance to make a deduction in the verdict based on the plaintiff’s alleged negligence, but it declined to do so, according to Donnelly.
In addition, the defense also disputed causation, presenting testimony that Dalessandro’s stomach tumor had already spread to the liver in June 2013. If that were the case, the patient would have had no chance of survival even if diagnosis was made on a timely basis, Donnelly said.
Following a four-week trial before Superior Court Judge Raymond Reddin, the jury granted gross awards of $250,000 for survival pain and suffering; $2 million for the dedecent’s emotional distress and anxiety from the delayed diagnosis; $600,000 for loss of financial contribution and support to Dalessandro’s 17-year-old son; and $250,000 for loss of parental services guidance, advice and counsel to his son.
Michael Heron of William Brennan‘s office in Shrewsbury, who represented Siegel, did not return a call about the case.
— Charles Toutant
$1 Million Phantom Vehicle Case
Estate of Plytynski-Young v. Mercurio: The estate of a 62-year-old Woodbridge woman who died after she was injured in a car accident will receive $1 million in a Middlesex County suit.
Judith Plytinski-Young died at Robert Wood Johnson University Hospital in New Brunswick on Aug. 6, 2015, several weeks after the accident, said the estate’s attorney, Michael R. Lombardi.
She was injured July 21, 2015, as she was driving northbound in the left lane of Interstate 287 in Somerset. Her car was struck by a car driven by defendant Rosalind Mercurio of Basking Ridge, said Lombardi, of Lombardi & Lombardi in Edison.
Mercurio swerved into the left lane and struck Plytinski-Young, forcing the car into the concrete median, Lombardi said. The impact caused an injury to Plytinski-Young’s left knee, Lombardi said.
Mercurio claimed that there was an unidentified dump truck traveling directly in front of her from which sand, gravel, and rocks were falling, causing her to serve, Lombardi said. That truck was never found, he said.
Plytinski-Young was take to Robert Wood Johnson, complaining of pain in her left kneecap and left lateral knee area, Lombardi said. While there, she was given an X-ray, a knee immobilizer, and crutches, and was discharged the same day.
On July 23, 2015, Plytinski-Young fainted and was taken back to Robert Wood Johnson, and was admitted. She was later found to have a blood clot in her left leg, which traveled to her lung, Lombardi said. She was given an anticoagulant and other medication, which Lombardi said caused an aneurysm to develop in her brain.
She remained in the hospital until she died, Lombardi said.
The estate filed claims in Middlesex County Superior Court against Mercurio, and an uninsured claim against Plytinski-Young’s carrier, GEICO.
Mercurio had a primary policy with GEICO and an excess policy with Franklin Mutual Insurance Co. The parties settled after mediation with retired Superior Court Judge Anthony Sciuto of Fort Lee’s Maggio, DiGirolamo & Lizzi.
Last Dec. 15, GEICO agreed to pay $250,000 from Mercurio’s policy, while Franklin Mutual agreed to pay $500,000. Lombardi said he received the last portion of that settlement on March 5, Lombardi said. On Feb. 14, the estate and GEICO settled the UM claim for $250,000, Lombardi said. The total recovery was $1 million.
For the claims against Mercurio, GEICO and Franklin Mutual retained Patricia Adams of Campbell, Foley, Delano & Adams in Toms River, and Anthny Pasquarelli of Sweet Pasquarelli in New Brunswick.
For the UM claim, GEICO retained Cormac Egenton of the law offices of Robert Raskas in Piscataway.
None of the defense attorneys returned calls seeking comment.
Plytinski-Young is survived by daughter, a sister and two brothers.
— Michael Booth
$939K Verdict For Work Injury
Lupia v. Port Authority Trans Hudson Corp.: A PATH employee injured on the job when a shelf fell on him was awarded $939,000 by a Middlesex County jury on Feb. 8 following an eight-day trial, though the actual recovery is half that amount.
On Feb. 12, 2015, Carl Lupia, currently 53, was working at the Journal Square Transportation Center in Jersey City as an operations examiner, taking inventory of various items for rail workers, such as brake handles and suitcases, kept on storage shelves. He claimed that, as he was standing in the 3-foot aisle facing one shelf, the shelf behind him fell on him, according to his lawyers, Jaclyn Gannon and Charles Cerussi of Cerussi & Gunn in Shrewsbury.
Lupia claimed he sustained spinal injuries at the cervical and lumbar levels, each of which required fusion surgeries, as well as, for the cervical injury, a revision procedure; and a fractured thumb and torn ligament in his left hand, also requiring surgery, Gannon said.
The matter went to trial for eight days before Middlesex County Superior Court Judge Michael Cresitello. Lupia, claiming premises liability under the Federal Employers Liability Act, alleged that the shelf was in disrepair, with loose nuts and bolt and a missing anchor. PATH challenged Lupia’s version of the facts and contended that the shelf was in good condition and would have required significant force to bring down. PATH also challenged damages and causation, pointing to a 2004 motor vehicle accident in which Lupia was involved, according to Gannon.
Also at issue in the trial was whether Lupia himself was responsible for insuring the safe condition of the Journal Square facility; the defense contended that he was was, while Lupia argued he was responsible for the safety of the trains, not the facility, Gannon said.
The jury by 7-1 vote apportioned 50 percent liability each to PATH and Lupia, and unanimously awarded $939,000 to Lupia: $500,000 for future lost wages, $250,000 for future medical costs, $100,000 for pain and suffering, and $89,000 for past lost wages, according to Gannon. The jury’s apportionment of fault lowers Lupia’s recovery to $469,500.
Thomas Brophy, an in-house attorney for PATH, represented the agency at trial. He didn’t return a call seeking comment.
— David Gialanella