New Jersey’s largest personal injury recoveries grew markedly in 2012, the Law Journal‘s annual survey of the Top 20 awards shows.
The average award for the 12 months ending Sept. 14, 2012, was $10.2 million, up 63 percent from $6.26 million for the same period in 2011.
And although the top payout — at $33.9 million, compared with $18 million last year — skewed the average considerably, the Top 20 awards in general ranged higher, setting a median of $7.32 million, 38.6 percent more than $5.28 million in 2011.
The 20th spot this year goes to an award of $4.33 million, which is $1 million higher than the last-place award in 2011.
Not only are personal injury awards larger this year, but they also showcase a greater variety than the usual run of automobile injury and medical malpractice cases.
This year, the top four cases include: a forklift with a potentially deadly design defect; a man who was electrocuted by a fallen utility wire; an all-terrain-vehicle accident in the Pocono Mountains; and a child struck in the chest by a baseball that was hit with a metal bat.
Other unusual cases appearing in this special issue are: a recovery against DYFS for injuries resulting from child abuse; a recovery against a town because of a boy’s drowning in the municipal pool; a settlement from a school district because of a bullying attack that left a student paralyzed; and a teenager disabled after a prescription drug overdose.
Increases were also evident in the next tier of recoveries, ranked 21 to 30. This year’s grouping range from $4.2 million to $3.375 million, compared with $3.15 million to $2.7 million last year (see, "Ten More Awards Worth Noting").
As usual, the Top 20 awards are listed in order of compensatory damages, as of date of verdict or settlement, even if there were punitive damages as well. Awards of equal value share a ranking. Awards for multiple parties are ranked by their lump-sum value. Unilateral decisions by governmental entities to compensate injured parties are not included.
Forklift maker to pay $33.9M over worker left paralyzed
A $33.9 million settlement over a forklift accident that left an operator a quadriplegic won court approval Aug. 20 in Fermin v. Toyota Material Handling U.S.A. Inc.
On Sept. 30, 2009, Jailen Beato was using a forklift to move pallets at a Federal Express facility in Parsippany when, as he leaned forward to read a pallet label, he inadvertently hit the control for the forklift mast. It lowered onto him, crushing his torso so he could not breathe. Co-workers did not discover him for about 15 minutes.
Beato suffered a loss of oxygen to the brain, leaving him a quadriplegic. Now 33, he is unable to speak, feed himself or control his bodily functions.
Dominga Fermin, his sister and guardian, sued forklift maker Toyota Material Handling U.S.A. Inc. of Irvine, Calif., in Passaic County Superior Court in June 2010. Toyota removed the case to federal court that July.
Fermin, represented by David Mazie and David Freeman of Mazie, Slater, Katz & Freeman in Roseland, claimed Toyota failed to address a known design defect, to implement safety features and provide warnings. On other forklift models, Toyota used an "operator presence sensing system" (OPSS) to deactivate the controls if the operator got out of the seat for more than two seconds. In court papers, Toyota asserted that the OPSS was not practical for the forklift used by Beato.
The plaintiff claimed Toyota identified 17 other similar accidents from 1984 to 2009, resulting in nine deaths.
On Aug. 20, U.S. Magistrate Judge Michael Hammer approved the settlement, 25 percent of which was awarded as legal fees to Mazie Slater.
Mazie and Freeman declined comment. Defense lawyers Philip Crawford and Robert Brown Jr. of Gibbons in Newark did not return calls.
$20.5M to man who had to undergo amputations after he was electrocuted by a fallen utility wire
A Monmouth County jury awarded $20.5 million on Nov. 4, 2011, in a suit by a man who had to undergo amputations after he was electrocuted by a fallen utility wire.
But he and his wife won’t receive that amount because they agreed to confidential settlements in the case, Hagerman v. Jersey Central Power & Light (JCP&L).
On Feb. 15, 2007, two days after an ice storm, someone reported a hanging utility wire giving off sparks on Pear Street in Tinton Falls. The fire department inspected the wire, in the driveway of William and Patricia Hagerman’s home, and police blocked off the street at the corner. JCP&L was notified but two JCP&L workers were unable to find the wire.
Soon after, the Hagermans, unaware of the problem, were exiting the driveway in their car when the left rear tire came in contact with the wire, causing smoke. They stepped out of the car, and when William reached to open the door to turn off the ignition, a shock traveled up his left arm and down his left leg, setting his clothes on fire. A nearby police officer used a fire extinguisher to douse the flames.
Hagerman, then 47, needed to undergo amputation of his left arm above the elbow and his left leg below the knee. He sued JCP&L, the police department and fire company and his wife sued for bystander trauma.
The defendants blamed each other and Hagerman for returning to the car, according to the Hagerman’s lawyer, Norman Hobbie of Hobbie, Corrigan & Bertucio in Eatontown.
At trial before Superior Court Judge Joseph Quinn, JCP&L and the police reached confidential settlements.
The jury awarded $16 million for pain and suffering, disability and loss of enjoyment of life; $2.5 million for lost income and medical expenses; and $2 million on Patricia’s claim. The jury assessed 60 percent of fault to the fire department, 40 percent to JCP&L and none to the police or the plaintiffs. The fire department then reached a confidential settlement, Hobbie says.
Patricia Hagerman had separate counsel: Thomas Comer of Lomurro, Davison, Eastman & Munoz in Freehold.
JCP&L was represented by Stephen Rudolph of Rudolph & Kayal in Sea Girt, the fire department by Rutherford solo Lane Biviano and Randolph solo Gary Grant, and the police department by Richard Amdur of Amdur, Maggs & Shor in Eatontown. Grant declines to comment; Rudolph, Biviano and Amdur did not return calls.
$15M to man left permanently disabled in an all-terrain-vehicle accident
A man allegedly left permanently disabled in an all-terrain-vehicle accident won a $15 million default judgment in his Monmouth County suit, Wojcik v. Mastorio.
On Aug. 10, 2008, Michael Wojcik, then 24, was riding on the back of an ATV driven by Joseph Mastorio, also 24, in the Pocono Mountains. As Mastorio rounded a curve on the road too quickly, the vehicle struck a pothole, causing both men to be ejected.
Wojcik hit a tree head-first, the impact shattering his bicycle helmet. He suffered brain and spine injuries and facial and rib fractures and was comatose for several weeks. He underwent five procedures and suffered two strokes, according to his lawyers, Brian Yesalonis and James Martin of Martin Kane Kuper in East Brunswick.
He is unable to speak, lost vision in his right eye and use of his left hand, walks with a limp, has significant memory and cognitive problems and must be fed through a tube because he has trouble swallowing, his lawyers say.
Mastorio, of Cliffwood Beach, admitted to police to consuming alcohol before the crash and had a .11 percent blood-alcohol content, above the legal limit. He was served with the suit but never appeared, Yesalonis says. Judge Honora O’Brien Kilgallen granted the default judgment on March 12.
Yesalonis says he has been unable to ascertain whether Mastorio had liability coverage but will file an information subpoena on him.
Teen left disabled by ball hit with metal bat gets $14.5M
A Passaic County judge approved a $14.5 million settlement Aug. 22 to a Little League player left brain-damaged by a ball hit with an aluminum bat.
Steven Domalewski, then 12, of Wayne, was pitching in a 2006 youth baseball game when a line drive struck him in the chest. He went into cardiac arrest and stopped breathing, and his brain was deprived of oxygen for 15 to 20 minutes before he was resuscitated. Now 19, he is nearly blind, his speech is impaired and he is confined to a wheelchair.
The batter was using a Louisville Slugger TPX Platinum aluminum bat, model YB504, made by Hillerich and Bradsby Co. of Louisville, Ky.
Domalewski’s parents’ product-liability suit named Hillerich and Bradsby; the Wayne Police Athletic League, which sponsored the game; and Little League Inc., whose performance standards deemed the bat suitable for youth baseball. Metal bats are known to propel the ball at greater speed and force than wooden bats.
The suit, Domalewski v. Hillerich and Bradsby Co., claimed the bat posed an unreasonable risk of harm. The plaintiffs made claims for defective design, failure to warn, breach of implied or express warrant of merchantability and bystander trauma on behalf of Domalewski’s father.
The Wayne PAL was dismissed on charitable immunity grounds in July, says its attorney, Paul Clark of Wade Clark Mulcahy in Mountainside.
Little League and Hillerich and Bradsby are parties to the settlement, approved by Judge Garry Rothstadt at a friendly hearing.
The judge’s order did not disclose each defendant’s share; lawyers say the breakdown was confidential.
Domalewski and his family were represented by Ernest Fronzuto of Wellinghorst & Fronzuto in Woodland Park. The Little League’s lawyer, James Orr of Wilson, Elser, Moskowitz, Edelman & Dicker in Florham Park, declines comment. Hillerich and Bradsby’s lawyer, Gary Potters of Potters & Della Peitra in Fairfield, did not return a call.
$14M to woman whose infant was permanently injured in the hours leading to his birth
A woman whose infant was permanently injured in the hours leading to his birth accepted $14 million on Oct. 5 to settle her medical malpractice suit, Palacios v. Favetta.
Rebecca Palacios went to Somerset Medical Center in Somerville while in labor on April 25, 2009. According to her lawyer, Gerald O’Connor of O’Connor Parsons & Lane in Westfield, the fetus showed signs of insufficient heart rate variability indicating distress, which was not detected by family practice resident Jaimenee Khemraj or nurses Marieta Jones and Dorothy DiFabio.
Khemraj also did not detect Palacios’s excessive contractions, which decreased the flow of oxygen to the fetus, O’Connor says.
Supervising attending obstetrician Marcel Favetta arrived at about 3 p.m. but did not review fetal monitoring strips or examine Palacios until 11 p.m., and during the exam did not recognize fetal distress and allowed labor to continue, O’Connor says.
The heart rate pattern indicated increased distress until 12:22 a.m. on April 26, when Palacios gave birth, he says. Because of the lack of oxygen, the baby, Kevin, suffered brain damage, has no limb use, is blind and needs 24-hour care, O’Connor says.
Palacios sued Favetta, Khemraj, Jones, DiFabio and the hospital in Somerset County Superior Court, claiming they negligently failed to detect fetal distress and take corrective measures.
In a settlement approved by Judge Yolanda Ciccone, the hospital agreed to pay $13 million from its self-insured trust, and Favetta’s malpractice insurer, Medical Protective of Fort Wayne, Ind., agreed to pay $1 million, O’Connor says.
James Sharp of Sharp & Associates in Parsippany, Favetta’s attorney, did not return a call. Neither did Peter Korn of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, the hospital and staff members’ attorney.
$13.9M to family whose infant was killed and whose older child was severely injured when truck fell on top of their car
A family whose infant was killed and whose older child was severely injured when a truck fell on top of their car will receive $13.9 million in settlement of their Hudson County suit, Perez v. Cohen Express Corp.
The injured child, Kelany Perez, now 12, will receive the largest amount, $11 million, says her attorney, Montclair solo Frank Zazzaro. Her claims against the two primary defendants — Cohen Express Corp. of Secaucus and National Retail Transportation Co. Inc. of New York — were settled on the second week of trial before Superior Court Judge Edward O’Connor.
Norman Castro, the father of 6-month-old Nahziah Castro, who died in the accident, will receive $500,000 under a settlement reached on Jan. 29, says his lawyer, John Molinari, of Blume Goldfaden Berkowitz Donnelly Fried & Forte in Chatham.
The mother of the two children, 29-year-old Ninet Barillas, who was driving the car, will receive $1.9 million. Her mother, Lubia Gonzalez, now 49, who also was a passenger, will receive $500,000, says the attorney representing both women, Rene Riverol, of Jersey City’s Lerner, Piermont & Riverol.
The accident occurred on Aug. 1, 2007, as Barillas was driving west on Secaucus Road in Secaucus. A truck — owned by Cohen Express and leased to National Retail Transportation — was traveling westbound when the driver, Mark Jackson, lost control. The truck tipped over on top of Barillas’ car and then righted itself. Jackson was employed by Cohen Express but that day was working for National Retail.
Nahziah Castro died the next day. Perez sustained severe head trauma that has left her with permanent cognitive impairments, says Zazzaro. Doctors were forced to remove sections of her brain to reduce swelling, and she has largely lost the use of the left side of her body. She functions at the level of a 6-year-old and will need care for life, Zazzaro says.
Barillas sustained two broken legs, a ruptured spleen and a brain injury that has affected her speech and memory. Gonzalez suffers from post-traumatic stress disorder, having remained conscious after the crash while rescue workers cut open the car, her lawyer says.
Cohen Express had coverage through two carriers. Lincoln General Ins. Co. will pay its $1 million policy limit and Lexington Ins. Co., the excess carrier, will contribute $4 million.
National Express will contribute its $500,000 deductible. Its primary carrier, ACE Insurance Co. will contribute $1.5 million. The company’s two excess carriers — Travelers Insurance Co. and American Guarantee and Liability Insurance Co. — will contribute $3 million and $4.5 million, respectively.
Lincoln General retained John Gerard Devlin, of Devlin & Associates in Philadelphia. Lexington retained Arnold Capriotti of Salmon, Richezza, Singer & Turchi in Sewell. ACE retained Joseph Powers, of Sedgwick in New York. Travelers retained George Helfrich Jr. of Marshall, Dennehey, Warner, Coleman & Goggin in Livingston. American Guarantee retained Justin Kinney, of Coughlin Duffy in Morristown. National Retail retained Leonard Leicht, of Morgan Melhuish Abrutyn in Livingston.
Devlin confirmed the amount of the settlement. Kinney and Helfrich declined to comment. Capriotti, Powers and Leicht were away from their offices and were unavailable for comment.
$10M to worker electrocuted while on a track project
An Essex County judge approved a $10 million settlement on Oct. 20, 2011, in a suit over fatal burns to a worker electrocuted while on a track project, Clemente v. New Jersey Transit.
Anthony Clemente, 37, an employee of Beaver Concrete Construction Co. in Hazlet, was working on the Seventh Street Bridge in Newark for New Jersey Transit on Feb. 25, 2008, when an overhead electrical wire arced and set his body afire. He suffered second- and third-degree burns over 72 percent of his body and lived for six days in pain and unable to speak, says John Keefe Jr., of Keefe Bartels in Red Bank, who represents the family.
The plaintiff alleged that New Jersey Transit failed to provide a safety briefing or indicate which areas were electrified.
Essex County Assignment Judge Patricia Costello approved the settlement of wrongful death, survivorship and per quod claims, reached Sept. 6 through mediation with retired Superior Court Judge L. Anthony Gibson, now with Youngblood, Lafferty & Sampoli in Linwood. She also approved enhanced attorneys’ fees of $2.972 million.
Stephen Sullivan Jr. of Keefe’s firm was co-counsel.
Defense attorney William Mergner Jr., of Leary Bride Tinker & Moran in Cedar Knolls, declines comment.
7 – TIE
$10M to family of 13-year-old boy who drowned in municipal pool
A Bergen County jury awarded $10 million to the family of a 13-year-old boy who drowned in a municipal pool in Ridgewood, Jung v. Village of Ridgewood.
Soo Hyeon Park and his family, visiting from South Korea, were with friends on July 15, 2008, at Graydon Pool, a man-made lake, when he and two other boys started to swim to a diving platform in the deep end.
Soo Hyeon began to struggle and called out, "I can’t breathe" in Korean. One boy swam to him but, seeing Soo Hyeon was submerged, called out to his family at poolside, and the pool manager was alerted. But rather than search the water, the manager had staff search the grounds and parking area, according to the plaintiffs’ attorney, Neil Weiner of Weiner & Strauss in Hackensack.
Staff and scuba divers then searched the water, and Soo Hyeon was found, dead, on the pool bottom 40 minutes after the manager was notified. His mother, father and younger sister saw his body removed from the water, according to the suit.
The suit, filed by the mother, Youn Wha Jung, as administratrix ad prosequendum, claimed that the lifeguards on duty were negligent in their supervision and the manager in his response. Weiner says the lifeguards claimed not to have seen or heard Soo Hyeon struggle.
Weiner says Ridgewood asserted that Soo Hyeon was negligent for going in the deep end and his family lost time going to the manager instead of the lifeguards. The plaintiffs rejected a $600,000 offer, he adds.
The jury found Ridgewood’s supervision was negligent and a proximate cause of the drowning. No negligence was attributed to Soo Hyeon.
The jury awarded $4 million for Soo Hyeon’s conscious pain and suffering; $2 million each for the mother’s and father’s emotional distress; $1 million for the emotional distress of the sister, now 12; and $1 million for the loss of Soo Hyeon’s guidance and services.
Ridgewood’s attorney, John Robertelli of Rivkin Radler in Hackensack, did not return a call. Superior Court Judge Estela De La Cruz presided at trial.
$7.8M to pedestrian who suffered brain damage and had her left leg and right foot amputated after being run over by a bus
A Passaic County judge approved a $7.8 million settlement on Jan. 6 to a pedestrian who suffered brain damage and had her left leg and right foot amputated after being run over by a bus, Perez v. NJ Transit.
Mercedes Perez was crossing Cianci Street in Paterson on Oct. 9, 2008, when she was hit by a NJ Transit bus and knocked to the ground. A tire on the driver’s side ran over her legs.
Her left leg was crushed, requiring an above-the-knee amputation. She also suffered degloving of the right foot that required amputation, traumatic brain injury with subdural and arachnoid hemorrhages, a broken cheekbone and nose, and retinal hemorrhage.
Perez underwent other surgeries to insert hardware into the orbit of her right eye and cheekbone. Now 59, she is at a rehabilitation center in Edison, but will be transferred to a private facility with the proceeds of the settlement, says her lawyer, Newark solo Brad Schenerman, who handled the case with Denville solo Gerald Helfrich.
The bus was driven by NJ Transit employee Kirsys Santiago-Carcamo.
Superior Court Judge Anthony Graziano approved the settlement. NJ Transit, which is self-insured, was represented by Louis Ruprecht, of Ruprecht, Hart, Weeks & Ricciardulli in Millburn, and Thomas Lenney, of Arseneault Whipple Fassett & Azzarello in Chatham. Neither returned calls. A message left at NJ Transit’s public affairs office also was not returned.
$7.34M for a man found to have died from the combined effects of a construction accident and medical malpractice
A Middlesex County jury on Jan. 19 handed up a $7.34 million verdict in a suit on behalf of an Old Bridge man found to have died from the combined effects of a construction accident and medical malpractice, D’Avila v. Hugo Neu Schnitzer East.
Jack D’Avila was helping install a mega-shredder at Hugo Neu Schnitzer East in Jersey City, a scrap-metal company, on May 18, 2005, when a 30-foot extension ladder propped against a concrete pier fell over and hit him in the head, injuring his neck.
D’Avila was taken to Jersey City Medical Center, where he had an emergency discectomy and his spine was stabilized. While in the intensive care unit, he began to have difficulty swallowing but the nurses did not tell the doctor until about 24 hours later, says the family’s attorney, Michael Zerres, of Blume Goldfaden Berkowitz Donnelly Fried & Forte in Chatham.
About an hour later, D’Avila stopped breathing after aspirating something, requiring emergency intubation, during which he suffered brain damage from loss of oxygen, says Zerres. He was left a quadriplegic and spent the rest of his life in a hospital or long-term care facility before dying on July 18, 2008, at age 51.
After trial before Superior Court Judge Phillip Paley, the jury awarded $7,346,363 in damages: $2,249,668 for medical expenses; $152,196, lost wages; $3.8 million, pain and suffering; $50,000, loss of consortium; and a combined $1,094,499, loss of services to his wife and two children.
The jury allocated 77 percent of the fault, or $5,656,700, to two construction defendants: Hugo Neu and Femco Machine Co. of Punxsutawney, Pa., whose employee allegedly failed to secure the ladder. That portion was further split 75-25: $4,242,525 to Femco and $1,414,175 to Hugo Neu.
The $1,689,663 malpractice portion was against surgical critical care doctor Patricia Schrader. The jury reached no-cause verdicts against three nurse defendants.
James Kane of Carroll McNulty Kull in Basking Ridge, who represents Femco, and Gerard Green, of the Charles Hopkins firm in Red Bank, for Hugo Neu, did not return a call. James Vasios of Vasios Kelly & Strollo in Union, for Schrader, was on trial and could not be reached.
$7.3M for woman who suffered nerve damage from an epidural needle during childbirth
A Sewell woman who suffered nerve damage from an epidural needle during childbirth was awarded $7.3 million on Dec. 22, 2011, by a Gloucester County jury in Birchfield v. Vanguard Anesthesia.
The needle struck a nerve root in Kristin Birchfield’s lumbar spine during the procedure on June 16, 2002, at Kennedy University Hospital in Washington Township.
Anesthesiologist Maresh Sharma inserted the needle with such force that Birchfield screamed in pain five or six times, which should have alerted him that he had hit a nerve root, says Birchfield’s attorney, Michael Berger of Andres and Berger in Cherry Hill.
Soon after, Birchfield experienced headaches and leg and arm pain and was diagnosed with complex regional pain syndrome, says Berger. She went to Germany, was placed in a medically induced coma for a week and was given Ketamine, a pain treatment not approved in the U.S. She had relief for a year but the symptoms returned and she has been unable to return to her job as a hairdresser, Berger adds.
Birchfield sued Sharma and Vanguard Anesthesia, which staffed the hospital. Sharma settled confidentially.
At trial before Superior Court Judge Eugene McCaffrey Jr., Vanguard claimed there was no deviation from the standard of care.
The jury found Vanguard liable and awarded Birchfield $3 million for pain and suffering, $2.5 million for future medical expenses, $650,000 for past medical expenses, $250,000 for past pharmacy expenses, $135,000 for past lost wages and $310,500 for future lost wages. Her husband, Wade, received $500,000 for loss of consortium.
Vanguard’s lawyer, Timothy Crammer of Crammer & Bishop in Absecon, did not return a call.
$7.03M for a worker paralyzed in a construction accident
A worker paralyzed in a construction accident won a $7.03 million jury verdict on June 14 in his Gloucester County suit, Brown v. Shoreline Grading Inc.
On March 8, 2006, Bryan Brown, employed by Haskell Site Work, was connecting water pipe in a three-foot-wide, seven-foot-deep trench in Little Egg Harbor when the trench collapsed, burying him up to his chest.
Brown suffered spinal and other injuries and underwent surgery to both knees, say his lawyers, John Dooley and Sean McMonagle of Dooley’s firm in Pennsauken.
Brown, now 42, is paralyzed in his left leg, and suffers from urinary incontinence and sexual dysfunction.
He sued general contractor Shoreline Grading Inc. of West Creek, claiming it failed to use safety precautions or a safety monitor at the site.
Shoreline argued Brown was a special employee, thus insulating it from liability.
After a trial before Superior Court Judge David Morgan, the jury found that Brown was not Shoreline’s special employee and that the company was negligent and proximately caused Brown’s injuries. Brown, too, was negligent, but did not cause the injuries, the jury found.
The jury awarded $4 million for pain and suffering, $2 million for past and future lost income, $820,000 for future medical expenses, $62,012 for past medical expenses, and $150,000 to Brown’s wife for loss of consortium.
Shoreline’s lawyer, Thomas Wester of McDermott & McGee in Millburn, declines comment.
$6.3M for permanent injuries suffered in botched surgical procedure
A surgical patient on June 1 won a $6.3 million jury verdict for permanent injuries suffered in the botched procedure, in Francisco v. Wang.
On Feb. 16, 2007, Roseann Francisco underwent removal of her left ovary at Barnert Hospital in Paterson. When the obstetrician, Susan Wang, opened the abdominal cavity, she found several adhesions requiring separation. She separated one adhesion between the colon and omentum, causing an injury that became a perforation, says Francisco’s lawyer, Donald Caminiti of Breslin & Breslin in Hackensack.
Five days later, Francisco reported back to Wang that she was in severe pain. A second procedure revealed sepsis, and a colostomy was performed.
Francisco, now 48, has had several additional surgeries, cannot eat a normal diet and is malnourished, and has nausea, vomiting and extensive abdominal scarring, Caminiti says.
Francisco claimed Wang should have called in a general or colorectal surgeon when she found the colon adhesion or after she repaired it.
At trial before Bergen County Superior Court Judge Rachelle Harz, the jurors voted 7-1 to find Wang liable. They awarded $6 million to Francisco for pain and suffering, and $300,000 on her husband’s per quod claim.
Wang’s lawyer, James Sharp of Cedar Knolls, did not return a call.
$6M to motorist permanently injured by drunken driver
An Ocean County jury handed up a $6 million verdict on Jan. 25 to a motorist permanently injured by a drunken driver, in Contino v. Gonzalez.
On Sept. 3, 2006, Anthony Contino, then 41, was driving north on Route 35 in Ortley Beach when hit by a vehicle driving south in the northbound lanes, says his lawyer, David Wheaton of Levinson Axelrod in Howell.
The other driver, Alicia Gonzalez, then 24, admitted she was drunk and stipulated liability. The vehicle she drove belonged to William Corvelli. She claimed she had permission but Corvelli denied giving it. Contino claimed both were negligent. He also asserted a dram-shop claim against Joey Harrison’s Surf Club in Ortley Beach, where Gonzalez was allegedly drinking before the accident.
Contino suffered a crushed right tibia, ankle and heel bone, and complications prohibited corrective surgery. He returned to work as a self-employed window washer eight months later but still takes daily doses of Roxicodone, a narcotic, which causes insomnia, constipation and other side effects.
After a trial before Superior Court Judge Joseph Foster, Joey Harrison’s settled after jury selection for an undisclosed amount. The jury found no cause of action against Corvelli, accepting his account that he did not give Gonzalez permission, Wheaton says.
The jury awarded $6 million in damages for pain and suffering on the claim against Gonzalez, whose automotive carrier is Liberty Mutual.
Her lawyer, East Brunswick solo Miriam Rubin, declines comment, as does Corvelli’s lawyer, Michael Malia of King, Kitrick & Jackson in Brick.
$5.8M million for construction worker who lost use of his left leg in a job site accident
A construction worker who lost use of his left leg in a job site accident accepted $5.8 million to settle his Camden County suit on Jan. 23, Crumley v. D’Andrea Construction Co.
Plaintiff Craig Crumley was on foot, helping guide a backhoe operator who was loading a welding machine on a flatbed truck, when the backhoe unexpectedly turned toward him and its wheel crushed his left foot and ankle.
He was left with complex regional pain syndrome in his lower left leg, rendering him permanently disabled and unable to bear weight on his left foot, according to the suit. The leg has swollen to twice its normal size and he has no movement in his ankle or toes.
Crumley sued the operator, Paul Monitzer, alleging he was using a mobile phone at the time, which Monitzer denied, say the plaintiffs’ lawyers, Robert Mongeluzzi and Andrew Duffy of Saltz, Mongeluzzi, Barrett and Bendesky in Philadelphia. Monitzer’s employer, D’Andrea Construction of Berlin, was also a defendant.
The parties had mediation last October with Joel Rosen, a former U.S. magistrate judge, now with Montgomery, McCracken, Walker & Rhoads in Cherry Hill, who remained involved with the settlement talks.
Daniel Schwarz, John Popilock and Daniel Ashton of Schwarz Cleary Josem and Schwarz in Philadelphia were plaintiff’s co-counsel.
D’Andrea and Monitzer were represented by Benjamin TartagliaIII of Mintzer, Sarowitz, Zeris, Ledva & Meyers in Cherry Hill, who did not return a call.
$5.59M for woman who lost her leg due to delayed surgery
An Essex County jury awarded $5.59 million on July 26, to a Newark woman who lost her leg due to delayed surgery, though a high-low agreement reduces it to $5.26 million.
According to the complaint in Evans v. Meadowlands Hospital, on Aug. 12, 2005, Crystal Evans, then 21, was taken to Meadowlands Hospital in Secaucus for a dislocated left knee and popliteal artery damage. The operation on the artery was not performed for 17 hours, whereas a six- to eight-hour window is considered optimal, she alleged.
Emergency room doctor Bernard Reimer ordered an orthopedic, but not a vascular, consultation, even though half of dislocated knees result in damaged arteries, according to the suit.
Plaintiff lawyer Roy Konray says the orthopedic surgeon on call, Peter DiPaolo, whose contract required him to answer calls within 20 minutes and arrive at the hospital within an hour, could not be reached for 85 minutes.
By 7 p.m., while DiPaolo was still en route, Evans’ foot was found to have no pulse. He told the staff by phone to administer an angiogram. Radiologist Melchor Romero recommended a CT angiogram, which the hospital could not perform, so Evans was taken to Jersey City Medical Center. Romero read the test at 10 p.m. but did not give instructions to return Evans to Meadowlands Hospital. DiPaolo, on learning Evans was at another hospital, turned around and went home, Konray says.
Evans underwent surgery at 8 a.m. the next day, but her leg did not regain circulation and was amputated above the knee two days later.
The jury awarded $4 million for future pain and suffering, $400,000 for past pain and suffering, $200,000 and $825,000, respectively, for past and future medical expenses and $165,000 for past lost wages. The jury apportioned 68 percent of liability to DiPaolo, 22 percent to Reimer and 10 percent to Romero. A high-low agreement limited Reimer’s payment to $900,000, rather than the $1,229,800 awarded.
Konray, of Tobin, Reitman, Greenstein, Caruso, Wiener, Konray & Kessler in Rahway, was assisted by Douglas Grossbart of Seigel Capozzi in Ridgewood. DiPaolo was represented by E. Burke Giblin and Jennifer Brozon of of Giblin & Combs in Morristown. Brozon says she will file a motion for a new trial and confirms the verdict, as does Romero’s attorney, Peter Korn of McElroy, Deutsch, Mulvaney & Carpenter in Morristown. Louis Dughi of Dughi, Hewit and Domalewski in Cranford, representing Reimer, did not return calls.
17 – TIE
$5M for tractor-trailer driver who lost a leg as a result of a loading accident
A tractor-trailer driver who lost a leg as a result of a loading accident accepted $5 million on March 25 to settle his Middlesex County suit, Kanard v. Gardner Masson Bishop.
On Sept. 28, 2007, John Kanard, an employee of Ho-Ro Trucking Co. of Linden, was to carry a load of barriers, each weighing about 7,000 pounds, that are used to separate travel lanes. He was tying down several barriers on his truck bed while Mark Albanese, an employee of the shipper, Gardner Masson Bishop Co. of Hackettstown, was loading another barrier with a crane. That barrier struck one on the truck, knocking it down. It crushed and severed Kanard’s left leg below the knee, says his lawyer, James Martin of East Brunswick’s Martin Kane Kuper.
Later, the leg was amputated above the knee. Martin says Kanard now uses a prosthetic device and undergoes frequent adjustments and socket revisions. He has not returned to work, though he is pursuing a high school equivalent degree.
Kanard alleged that Albanese was negligent in allowing the barrier to swing in the air and that Gardner Masson, which was using the barriers for road construction, did not provide safe working conditions. Martin says Gardner Masson claimed Kanard, now 47 and living in Pennsylvania, had placed himself in a dangerous situation.
The settlement came in mediation with retired Superior Court Judge John Keefe Sr., now with Keefe & Bartels in Red Bank.
Gardner Masson’s primary carrier, Travelers Ins. Co., will contribute $1 million and secondary carrier AIG $4 million. Martin says AIG is trying to recover some of its share from secondary carriers Illinois National Ins. Co., Carolina Country Ins. Co. and Old Republic Ins. Co.
Travelers retained William Mergner Jr., of Cedar Knolls’ Leary Bride Tinker & Moran, and AIG retained John Snyder, of Philadelphia’s Rawle & Henderson. Neither returned calls.
The settlement will be offset by a $400,000 workers’ compensation lien.
17 – TIE $5M for injuries from child-abuse
New Jersey agreed on Dec. 16, 2011, to pay $5 million over abuse of a two-year-old girl whose care it was supervising, in L.A. v. Division of Youth and Family Services.
The child, known as S.A., was abandoned by her 15-year-old mother soon after birth and in November 2000, the Division of Youth and Family Services sent her to live with her father. During the five months she spent with him, she was burned, beaten and sexually abused. She had chemical burns on her vagina, foot, leg and buttocks, along with bruises and belt marks, says David Mazie, of Mazie Slater Katz & Freeman in Roseland, who represents the girl and her adoptive mother, L.A.
Mazie says DYFS disregarded a judge’s directive to send a day-care worker several times a week and a homemaker on a daily basis.
DYFS removed S.A. in April 2001 after she was found beaten, tied up with a cable cord and hanging from a hook on a door, but it provided no treatment for her burns or therapy, despite a court order, and allowed her father visitation though it upset her, says Mazie.
Now 13 and living with L.A. in Pennsylvania, S.A. suffers from post-traumatic stress disorder, anxiety, nightmares and hyper-vigilance, Mazie says.
Mazie and Beth Baldinger of his firm tried the case before Mercer County Superior Court Judge Paul Innes, and won a $3.25 million verdict on Dec. 16. Facing a claim for attorneys’ fees because of a civil rights allegation and a separate punitive-damages trial set for Dec. 19, DYFS settled, says Mazie.
A claim against Asbury Park pediatrician Sudhakar Kharod, who allegedly treated S.A. in an emergency room and did not notify DYFS, settled in 2010 for $300,000, the maximum available from the N.J. Property-Liability Insurance Guaranty Association, Mazie says.
DYFS’s lawyer, Elliott Abrutyn of Morgan Melhuish Abrutyn in Livingston, declines comment. Kharod’s lawyer, Gregory Giordano of Lenox Socey Formidoni Giordano Cooley Lang & Casey in Lawrenceville, did not return a call.
$4.75M forinjuries from tree falling on highway
The state agreed to pay $4.75 million to settle a suit over a tree that crashed through a car roof, killing one person and paralyzing another, in McGlynn v. New Jersey Department of Transportation.
The tree fell on Sept. 19, 2003, during Hurricane Isabel, onto a Jeep traveling east along Route 46 in White Township. Passenger Pamela McGlynn, 35, of Bushkill, Pa., died instantly. The driver, her husband Edward, 41, suffered a burst fracture at C-6 that left him paralyzed from the waist down.
The lawyer for the McGlynns and for Pamela’s estate, John Dodig of Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig in Philadelphia, says the tree was an 80-foot-tall ailanthus leaning over the highway and it snapped a few feet above the ground. He says he adduced expert testimony that a routine inspection would have identified the tree as a hazard, based on its visible structural defects. The defendant, the New Jersey Department of Transportation, disputed that point, he says.
The suit, filed in Warren County Superior Court, included a Portee claim by two of the McGlynn children who were in the back seat but suffered only minor injuries.
The case settled through mediation with retired Union County Chancery Judge John Boyle, now with Lindabury McCormick Estabrook & Cooper in Westfield.
Defense lawyer John Bowens of Schenck Price Smith & King in Florham Park referred a call to the Attorney General’s Office, which confirms the settlement.
Feldman Shepherd’sJason Daria assisted Dodig on the case.
$4.33M to estate of warehouse worker who died from work-accident complications
The estate of a warehouse worker who died from work-accident complications recovered a combined $4.33 million through a jury award and a high-low agreement, in Wilkerson v. Campbell’s Auto Express Inc.
On Sept. 22, 2005, James Wilkerson, then 47, operating a pallet truck at the Pitman Warehouse in Pitman, was unable to stop and crashed into a rack. He suffered serious abdominal injuries, requiring surgeries that removed much of his lower intestines. He was left unable to digest food and was fed through a catheter, which led to a septic infection. He died on Dec. 4, 2009, say his lawyers, Daniel Mann, Alan Feldman and Edward Goldis of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig in Philadelphia.
Before his death, Wilkerson sued Campbell’s Auto Express Inc. of Pitman, the warehouse’s in-house maintenance company, and Material Handling Supply Inc. of Brooklawn, Campbell’s preventative-maintenance contractor for powered industrial trucks. Each defendant allegedly failed to correct an electrical problem that caused the pallet truck’s throttle control to fail.
Both defendants denied liability, asserted Wilkerson’s negligence caused the accident and argued that he had a diminished life expectancy because of recurring lymphoma, says Campbell’s attorney, Jeffrey Kadish of Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo in Bridgewater.
The case was tried over six weeks before Camden County Superior Court Judge Louis Meloni. After closing arguments ended, the estate and Material Handling entered a high-low agreement, both sides say.
The jury 9-0 found Campbell’s 75 percent liable and Wilkerson 25 percent liable, and awarded $4.5 million: $2 million for medical expenses; $1.5 million for pain, suffering, disability, impairment and loss of enjoyment of life; $500,000 for loss of consortium and related claims; $400,000 on the wrongful death claims; and $108,000 for past lost wages. Comparative negligence reduced the award to $3.38 million.
Kadish says an appeal and post-trial motions are under consideration.
The jury 9-0 found no cause of action against Material Handling, triggering the high-low agreement’s lower bracket of $950,000. That brought the estate’s recovery to $4.33 million, not including prejudgment interest.
Material Handling’s lawyer, Robert Devine of White and Williams in Cherry Hill, notes the net jury award was less than the estate’s claimed losses of about $4.2 million: $2.7 million in medical bills and $1.5 million in wrongful death and survivorship claims. •