Here are ten more personal injury awards of $3.375M or more, reported by the Law Journal in the 12 months ending Sept. 14, 2012, ranked in order of their value as of the date of verdict or settlement.
Student paralyzed in bullying attack in middle school settles suit for $4.2M
A New Jersey school district has entered into a $4.2 million settlement with a student who was permanently paralyzed after being punched in the stomach by a known bully at his middle school.
The settlement, made public April 13, 2012, could be the largest yet in a suit predicated on educators’ failure to comply with an anti-bullying law.
New Jersey, since 2002, has had in place a statute requiring that all school districts adopt and enforce policies against bullying of students on school property, including school buses and sponsored off-premises events.
The Ramsey School District in Bergen County allegedly made little or no compliance effort before Sawyer Rosenstein was attacked on May 12, 2006, at Eric S. Smith Middle School.
The school is said to have failed to keep records of reported incidents, to escalate punishment for repeated infractions by a student or to appoint a staff member to coordinate enforcement.
According to the suit, Rosenstein had been subjected to anti-Semitic and other slurs, such as "fag" and "whore," in the school lunchroom. He had told his guidance counselor and the assistant principal numerous times about the incidents in person and by email. Faculty members also reported bullying of Rosenstein to administrators.
Rosenstein’s attacker, Kenneth Major, had a history of assaults. In the course of the 2005-06 school year, he acted out violently against fellow students several times before delivering the punch to Rosenstein’s abdomen. Earlier, he had slapped Rosenstein in the face, according to a teacher’s report. He punched another student in the face on a school bus and punched several male students in the groin, accompanying the blows with the word "Bangkok."
But no records were kept of those attacks or of the other bullying reports, nor had Major been subjected to escalated discipline, the suit alleged. A compliance monitor had not been appointed.
Rosenstein suffered a rare condition called an infarct, a rupturing of an artery just above the navel that caused blood flow to the spine to be interrupted, leaving him paralyzed below the waist 48 hours after the assault, according to his lawyer, Jeffrey Youngman.
Over the next five years, Rosenstein underwent 19 separate operations, including a complete spinal fusion in November 2008. That procedure ultimately failed, leading to the removal of the hardware and bone at every level of his spine as well as a refusion in 2011.
Before the accident, Rosenstein was an aspiring actor who had appeared on "Saturday Night Live" and in television commercials. Now 18, he has used a wheelchair since the accident and is completing his first year at Syracuse University, Youngman says.
Rosenstein’s parents, Joel and Cheri, sued Major, the school district and eight faculty members and administrators. The suit focused on the school district’s failure to follow the state anti-bullying act.
"My argument was that the bullying act is a great idea. Had they enforced it, [the assault] wouldn’t have happened," says Youngman, of Feitlin, Youngman, Karas & Gerson in Fair Lawn, who was assisted by Frederick Gerson.
Major settled with Rosenstein under confidential terms in 2011. The school district agreed to its $4.2 million settlement on March 30 after two full days of mediation with Superior Court Judge Brian Martinotti.
The district’s defense, says Youngman, was that Major was a rogue actor and that the assault would have happened anyway if the district had taken the actions required by law.
The school district’s lawyer, Richard Goldstein of Marshall, Dennehey, Warner, Coleman & Goggin in Cherry Hill, did not return a reporter’s call
$4.14M for disabling drug overdose
A Bergen County judge approved a $4.14 million settlement on Nov. 3, 2011, to a teenager disabled after a prescription drug overdose, Simon v. Harding Phamacy.
On Sept. 23, 2007, Scott Simon, 17, had a group of friends over at the Saddle River home of his father, who was away. The group then went to the home of a friend, Donnie Nuckel, whose mother was away and generally forbade Donnie unsupervised access to the home, says Simon’s lawyer, Raymond Gill Jr. of Gill & Chamas in Woodbridge.
Simon, who had received previous treatment for substance abuse, ingested a large amount of Xanax, an anti-anxiety drug he received from Marc Malajian, an employee of Harding Pharmacy in Ridgewood, Gill says.
The next morning, Nuckel and others found Simon unresponsive and showing signs of distress, Gill says, adding that Nuckel instructed the others not to call 911 because he would get in trouble.
The suit claimed that two of them, Michael Trischetta and Erica Piscitelli, tried to rouse Simon. But Trischetta’s lawyer, East Brunswick solo Miriam Rubin, says Trischetta went to sleep before the drug use and left in the morning without knowing Simon’s condition, which she says was corroborated by the others’ testimony. Nuckel then called another friend, Jason Eliya, who drove Simon to Valley Hospital in Ridgewood, says his lawyer, Aldo Russo of Russo & Della Badia in Livingston.
Simon, in cardiac arrest, was revived but had suffered a brain injury from lack of oxygen. He is now confined to a wheelchair and requires round-the-clock assistance.
Simon sued Nuckel, Trischetta, Piscitelli and Eliya, claiming negligent failure to render aid; Harding Pharmacy owner Myron Lesh, claiming he negligently hired and supervised Malajian, whom Gill says is a convicted drug offender; and Malajian, claiming he stole and provided the Xanax.
Superior Court Judge Rachelle Harz approved the settlement. Harding Pharmacy will pay $1.9 million; Nuckel, $1.25 million; Malajian, $350,000; Trischetta, $325,000; Piscitelli, $287,500; and Eliya, $25,000.
Rubin, Russo and Simon’s co-counsel, John Schepisi and Silvana Raso of Schepisi & McLaughlin in Englewood Cliffs, confirm the settlement.
John Fearns of Lamb, Kretzer, Reinman & Roselle in Jersey City, Piscitelli’s lawyer, says Simon’s father, Arnold Simon, was named as a third-party defendant for leaving his son unsupervised, but the claim was dismissed procedurally in the settlement.
Harding Pharmacy’s lawyer, Michael Marone of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, did not return a call. Neither did Nuckel’s lawyer, Jeffrey Bell of Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo in Bridgewater, nor Malajian’s lawyer, Kevin Sisco of Afflitto Raimondi & Afflitto in Wayne.
3 – TIE
U.S. pays $4M in suit alleging early test failed to show birth defects
A woman who claimed her child was born disabled because a medical test was given too early accepted $4 million from the government on April 19 in her suit, Alvarez v. U.S.
Katherine Alvarez went in 2006 to the North Hudson Community Action Corp. in Union City, a federally funded health clinic. During the 14th week of Alvarez’s pregnancy, Jacqueline Reyes, a certified nurse midwife, prescribed a second-trimester ultrasound to look for birth defects.
Alvarez later transferred to a private doctor who did another ultrasound and discovered that the fetus had hydrocephalus, a buildup of fluid around the brain. Alvarez was in her third trimester then.
The child, Kimberlyn, was born on Jan. 31, 2007, with permanent cognitive disabilities and requires lifelong care.
Alvarez sued the government, claiming the ultrasound should be done in the 18th through 21st week and therefore did not detect problems. The clinic also failed to order another test during later visits, claims Alvarez’s attorney, Jack Wurgaft of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins in Springfield.
Wurgaft says Reyes was negligent and deprived Alvarez of the opportunity to abort, which she could not legally do by the time the defect was discovered.
The defense claimed the test, even if performed at the right time, would not have shown the problem, Wurgaft says.
Last September, the government agreed to pay $200,000 for a trust, $1.9 million for an annuity, $550,000 for the wrongful birth claim; $330,000 for a Medicaid lien; and about $1 million in attorney fees.
U.S. District Judge Katharine Hayden in Newark approved the settlement on Oct. 4. The Departments of Justice and Health and Human Services signed off on April 17 and paid two days later. Assistant U.S. Attorney Pamela Perron confirms the settlement.
DOT driver seriously hurt when hit by truck settles Middlesex suit for $4
A state Department of Transportation employee allegedly injured when his truck was hit by another accepted $4 million on March 2 to settle his Middlesex County suit, Leonardis v. Allied Oil LLC.
Plaintiff Ronald Leonardis was driving behind a pothole repair crew on Route 440 in Perth Amboy on Sept. 8, 2008, when a tanker owned by Allied Oil LLC of Hillsborough hit his truck from behind at more than 60 mph, says his lawyer, Nicholas Leonardis of Stathis & Leonardis in Edison.
The tanker burst into flames and Leonardis’ truck was propelled hundreds of yards, fracturing his skull, nose, shoulder and a lower back vertebrae at L1; causing skull hemorrhages and traumatic brain injury; tearing his rotator cuff, which required surgical placement of anchors; herniating his neck at C3-C4, for which he had a nerve block; and shattering two front top teeth, which required extraction, bone grafts and implants, he alleged.
Now 54, Leonardis suffers from memory loss, insomnia, headaches, vertigo, dizziness, diminished sense of taste and smell and sleeping problems, his lawyer says. Unable to work, he retired on a disability pension.
The case settled through mediation with retired Superior Court Judge Mark Epstein, now with Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick.
Defense lawyer Stephen Fenster of Schenck Price Smith & King in Paramus was out of the office and could not be reached.
3 – TIE
$4M for pedestrian fatality
The family of a Short Hills woman fatally injured as she crossed a street accepted a $4 million settlement of their Essex County wrongful-death suit on Aug. 8, in Pelham-Webb v. Flannery.
The plaintiffs settled with the driver’s carrier, Chubb Insurance, before defense counsel was retained, says their attorney, Bruce Nagel of Nagel Rice in Roseland.
Cynthia Pelham-Webb, 61, was crossing Union Place near the intersection of Maple Street in Summit on Dec. 21, 2011, when Owen Flannery, en route to the Summit train station to pick up his son, was turning left onto Union Place and apparently did not see her.
Pelham-Webb was trapped beneath Flannery’s SUV until rescue workers could raise the vehicle and remove her. She was taken to Morristown Memorial Hospital, where she died several hours later of massive internal injuries.
Pelham-Webb was survived by her husband, Marcus Pelham-Webb, and their three adult children.
Nagel says the settlement funds will come from Flannery’s primary $1 million policy, with Chubb and his $4 million excess policy with the carrier.
Man injured in falling elevator awarded $3.98M by Morris jury
A Morris County jury awarded $3.98 million to a man for spinal injuries suffered in the fall of a malfunctioning elevator, Tufaro v. Schindler Corp.
On Aug. 19, 2005, Richard Tufaro, now 53, of Branchville, was in an elevator at the Headquarters Plaza Hotel in Morristown that dropped quickly for two or three floors before its brakes caused it to stop abruptly.
He said the downward impact, 1,500 pounds of force, caused Tufaro’s knees to buckle and herniated his back and neck discs, rendering him unable to continue working as a carpenter.
Tufaro sued maintenance company Schindler USA of Morristown and planned to present evidence it did not perform regular maintenance. Schindler stipulated to liability at the start of trial with Judge Donald Coburn.
Schindler’s experts testified that the stop was not abrupt and Tufaro’s problems were pre-existing, says his lawyer, Andrew Fraser of Laddey, Clark & Ryan in Sparta. Fraser was assisted by Timothy Dinan of his firm.
The jury awarded Tufaro $2.8 million for pain and suffering, $233,000 for medical expenses and $950,000 to his wife, Sharon, for loss of consortium.
Schindler’s lawyer, James DeNorscia of Hackensack’s Sonageri & Fallon, did not return a call.
$3.7M for construction workplace accident
A carpenter accepted a $3.7 million settlement for back injuries allegedly suffered in a fall at a construction site, in Moreira v. Macedos Construction Co.
According to his suit, Jose Moreira was working on Oct. 1, 2005, on a home in Tewksbury being built for Carlos Peixoto, an employee of Macedos Construction Co. of Flemington, the general contractor. He was on a scaffolding when part of it collapsed and he fell 20 feet to the bottom of a ditch.
The scaffolding lacked side rails and did not conform to Occupational Safety and Health Administration standards, says Moreira’s attorney, Patrick Dwyer of Smith Stratton Wise Heher & Brennan in Princeton.
Moreira fractured his left foot and a vertebra at L-1, which resulted in nerve compression, causing a 60 percent impingement. Despite spine-decompression surgery, including a corpectomy at L-1 and fusion from T-12 to L-2, Moreira, now 56, suffers from incontinence, penile pain, erectile dysfunction and chronic severe foot pain.
The Feb. 15 settlement with Macedos and Peixoto called for a $1 million lump sum, nine monthly $190,000 installments and a final $990,000 payment, says Dwyer.
Dwyer says all the checks have come from Macedos, which has no coverage because its carrier, Virginia Surety Co., won a coverage dispute that was severed and tried to a verdict before Hunterdon County Superior Court Judge Peter Buchsbaum in May.
Dwyer says Virginia Surety also prevailed on fraud claims against Macedos and Peixoto for falsely claiming Moreira, an independent contractor, was an employee. Though Moreira, who was paid workers’ compensation benefits for a year, was also sued, the jury found no fraud by him.
William McGrath Jr. and William Hofmann of Smith Stratton Wise Heher & Brennan in Princetonwere Dwyer’s co-counsel.
Macedos’ lawyer, Marc Haefner of Connell Foley in Roseland, and Peixoto’s lawyer, Michael Bubb of Bubb Gogan & Cocca in Morristown, did not return calls.
8 – TIE
$3.5M in kidney disease medical malpractice suit
A man agreed to a $3.5 million settlement on Sept. 5 in a Bergen County medical malpractice suit claiming that two doctors failed to timely diagnose his kidney disease, Chervony v. Tassan.
According to the suit, in February 2006, Martin Chervony, then 47, consulted primary care physician Aja Ajemian after a cardiologist found his urine contained blood and protein and had an elevated sedimentation rate. Ajemian considered referring Chervony to a kidney specialist but instead sent him to hematologist Robert Tassan, who saw the patient for several months but never addressed the urine test results, which showed kidney problems.
In June 2006, Chervony himself went to a kidney specialist, who immediately diagnosed glomerulonephritis, an inflammation of the small blood cells in the kidneys. Chervony had to undergo dialysis and a kidney transplant and was unable to continue to work.
Chervony filed suit against both doctors, claiming they should have recognized the markers for glomerulonephritis and that Ajemian should have sent him to a kidney specialist.
Plaintiff’s attorney Barry Eichen adduced expert testimony that an earlier diagnosis would have allowed Chervony to be treated with medication and would have avoided loss of kidney function.
The defendants conceded liability but disputed the plaintiff’s assertion that he was disabled, says Eichen, who was assisted by Christian Mastondrea, his colleague at Eichen, Crutchlow, Zaslow & McElroy in Edison.
Rowena Duran of Duran & Pandos in Mountainside represented Tassan and E. Burke Giblin of Giblin & Combs in Morristown represented Ajemian. Neither returned a reporter’s calls.
Suit over disc surgery that ended with quadriplegia settles for $3.5M
A man left quadriplegic by a back operation accepted a $3.5 million settlement on Feb. 21 in his Essex County suit, De Munno v. Frank.
On Feb. 13, 2007, Albert De Munno Sr., then 71, underwent surgery on a herniated disk, performed by neurosurgeon Donald Frank at Clara Maas Medical Center in Belleville. Beforehand, Matthew Gazzillo, a technician with Intra-Operative Monitoring Services of Covington, La., attached electrodes so another neurosurgeon, Dwight Rosenstein, could monitor the vital signs remotely from his New Hyde Park, N.Y., office and warn Frank if he got too close to the spinal cord.
The suit charged Gazzillo did not perform tests at proper intervals and did not warn Frank accurately of data changes; Rosenstein did not notify Frank of changes he observed; and Frank used a front rather than rear entry procedure and decompressed discs individually rather than all at once. The failed monitoring caused Frank to compress the spinal cord, leading to paralysis, says plaintiffs’ lawyer Carol Forte of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham.
After mediation with James Clyne, a former Ocean County judge now with Benchmark Resolution Services in New Egypt, Frank agreed to pay $1 million, the hospital $250,000, IOMS $1 million and Rosenstein $1.25 million.
Defense lawyers Justin Johnson of Marshall, Dennehey, Warner, Coleman & Goggin in Roseland (for Frank), Kevin McCarty of Thompson Becker & Bothwell in Cherry Hill (for IOMS and Gazzillo), Bruce Brady of Callan, Koster, Brady & Brennan in New York (for Rosenstein) and Robert Donnelly Jr. of Dughi, Hewit & Domalewski in Cranford (for the hospital) did not return calls.
$3.375M in fatal DWI accident
A Middlesex County jury awarded $3.375 million on Oct. 20, 2011, to the family of a man killed after his SUV was hit by a drunken driver, in Sta Maria v. Brozyna.
But the final recovery came to $2.6 million due to a side agreement for lost business income, a high-low agreement with a defendant and partial apportionment of liability to a defaulting defendant.
Ernesto Sta Maria, 55, of Old Bridge, was driving on Route 35 in Middletown on Sept. 14, 2007, when hit from the back by a car driven by Christopher Brozyna. Sta Maria was ejected from the vehicle and died three hours later.
Brozyna suffered a minor head injury. He had a blood-alcohol concentration of .189 percent an hour and 45 minutes afterward, says the plaintiff’s attorney, Peter Chamas of Gill & Chamas in Woodbridge.
Sta Maria’s family sued Brozyna and four taverns he allegedly visited in the six hours before the accident — Sciortino’s Harbor Lights in South Amboy, as well as Chubby’s Waterside Café, Ashes Cigar Club and The Dublin House, all in Red Bank. The suit asserted claims for pain and suffering and loss of services.
It also asserted a claim for lost business income, based on Sta Maria’s work helping to care for three disabled women who lived with his family in exchange for payments from the state. The defendants argued that case law did not allow such a claim. The parties reached an agreement calling for any verdict to be increased by $350,000 for the lost income.
The jury awarded the estate $2.5 million for pain and suffering and $875,000 for loss of services, care and guidance. The jury attributed 57 percent of negligence to Brozyna, 33 percent to Dublin House, 10 percent to Ashes and none to Harbor Lights and Chubby’s. But Ashes, which had no insurance, did not answer the complaint and was placed in receivership.
Although the verdict called for Dublin House to pay more than $1.1 million, and its share of the lost business-income claim would have been another $115,000, it reached a high-low agreement capped at $550,000.
Brozyna will pay $1,923,750 of the verdict and $199,500 for lost business income, a total of $2,673,250 when added to Dublin House’s payment.
Stephen Foley Jr. of Campbell, Foley, Delano & Adams in Asbury Park, who represented Brozyna, and Terrence Bolan, of Bolan, Jahnsen & Dacey in Shrewsbury, for Dublin House, confirm the settlement. Superior Court Judge Joseph Rea presided at trial. •