$30,000 Verdict for Dog Bite

Devine v. Stahon, MON-L-6287-09; Monmouth County Superior Court; Judge Linda Grasso Jones; Aug. 2.

Facts & Allegations: James Devine, a home improvement contractor, was remodeling a bathroom at the home of Patricia and Lester Stahon in Edison on April 2, 2009.

Devine claimed that while he was working in the crawl space under the home, the homeowners let their dogs into the yard, apparently not realizing that he was in the crawl space.

One of the dogs allegedly entered the space and bit him on his lip.

Devine was taken to a hospital emergency room, where a plastic surgeon was called in to repair a complex laceration to his lip.

He had three follow-up visits with the plastic surgeon and allegedly was left with a scar that is not visible unless he puckers his lips.

Devine lost two weeks of work while he recuperated.

Devine sued the Stahons under New Jersey’s strict-liability dog-bite statute. The only contested issue was the extent of Devine’s injuries.

Before the verdict, the parties entered into a $275,000-$75,000 high-low agreement.

The jury returned a $30,000 award — $12,000 for pain and suffering and $18,000 for future medical costs.

Under the high-low agreement, Devine recovered $75,000.

Plaintiff Attorney:John Mennie, Schibell, Mennie & Kentos, Ocean.

Defense Attorney:Patricia Bray Adams, Campbell, Foley, Delano & Adams, Asbury Park.

Insurer: NJM for both defendants.

Trial Details: trial length: 1 day; jury deliberations: 1 hour; jury poll: 7-0; jury composition: five men, two women.

Plaintiff Expert: Steve Lee, M.D., plastic surgery/reconstructive surgery, Holmdel.

Defense Expert: None reported.

This report is based on information from counsel for both sides.


Defense Verdict in Crash Suit

Tunis v. Hagood, OCN-L-231-09; Ocean County Superior Court; Judge E. David Millard; July 25.

Facts & Allegations: Glenn Tunis was stopped in traffic in Jackson on Jan. 26, 2007, when his pickup truck allegedly was struck from the rear by a car driven by Timothy Hagood.

The impact pushed Tunis’ vehicle across the opposing lane of travel before it came to rest 20 to 30 yards from the point of impact.

Tunis alleged a cervical herniation at C6-7, with radiculopathy verified by a positive EMG, as well as a lumbar herniation at L3-4. He underwent three cervical epidural injections and six months of chiropractic treatment several times a week, then some intermittent visits during the next two years.

He sued Hagood for negligence, and his wife joined in the action, asserting a per quod loss-of-consortium claim.

Soon after, Hagood’s carrier tendered the policy’s $15,000 coverage limits.

Tunis demanded underinsured-motorist benefits from his own carrier, New Jersey Manufacturers Insurance. He further requested that NJM waive any subrogation rights as against Hagood. When arbitration did not resolve the UIM claim, Tunis sued NJM.

NJM stipulated that Hagood had been negligent, and the matter was defended on damages only.

Tunis acknowledged some prior back and neck complaints for which he had one or two chiropractic treatment sessions a year or two before the accident, but he testified that he was asymptomatic at the time of the accident.

The defense’s orthopedic expert testified that Tunis’ cervical and lumbar pathology was degenerative and that the accident caused him to suffer only temporary sprains and strains superimposed on the pre-existing condition.

The jury returned a defense verdict.

Plaintiff Attorney:Robert Florke, Eisdorfer, Eisdorfer & Eisdorfer, Elizabeth.

Defense Attorneys:Janet Law, Law Office of Kevin McGowen, Marlton (for Timothy Hagood); David Leone, Carton Law Firm, Manasquan (for New Jersey Manufacturers Insurance Co.).

Demand: $60,000 (offer of judgment).

Offer: None.

Trial Details: trial length: 3 days; jury deliberations: 14 minutes; jury poll: 7-0; jury composition: two men, five women.

Plaintiff Expert: Mandeep S. Othee, M.D., pain management, Neptune.

Defense Expert: Richard Sacks, M.D., orthopedic surgery, Toms River.

This report is based on information from plaintiff counsel and counsel for NJM. Defense counsel for Hagood did not return calls.


Defense Verdict in Workplace-Accident Suit

DeLeon v. Warrenville Hardware, ESX-L-6321-06; Essex County Superior Court; Judge Sebastian Lombardi; Sept. 20.

Facts & Allegations: On Aug. 31, 2004, Erick Ralda DeLeon was working as a painter when he allegedly was injured by a spray gun he was trying to clean. The device’s high-pressure spray mechanism allegedly injected paint into DeLeon’s right hand.

DeLeon underwent multiple surgeries and debridement procedures during a seven-year period. The ultimate diagnoses were cellulitis and recurrent infections, allegedly leading to permanent impairment of his hand.

DeLeon alleged that after he finished his spraying work, his supervisor instructed him to clean the gun and to take out, and replace, its tip. The supervisor allegedly advised DeLeon that the gun was ready for cleaning.

DeLeon believed that the pressure had been turned down and did not check it because the compressor was off. But by the time DeLeon picked up the gun, a co-employee apparently had re-activated the compressor. DeLeon then loosened the retaining nut and paint shot out from the front of the gun and the side where the tip was, injecting paint into his hand. The tip apparently blew off, and was not recovered.

Plaintiff counsel said that since DeLeon had testified he did not accidentally pull the trigger, the gun must have been given to him with the trigger “locked open” and the tip turned to a position to block the spray.

The spray was injected into his hand when he loosened the tip-guard retaining nut or accidentally rotated the tip to a spray position, it was argued.

DeLeon sued Graco Inc., which had designed and made the gun, for product liability.

Also originally named were Warrenville Hardware, which allegedly sold the gun to DeLeon’s employer, and various entities believed to be part of the Sherwin Williams corporate family. Those additional defendants were dismissed by way of summary judgment, and the liability controversy was ultimately between Graco and DeLeon.

Graco initially achieved a summary-judgment dismissal of the claim after it argued that the plaintiff’s liability expert was basing his opinion of design defect on a net opinion.

The pretrial dismissal was appealed, and the Appellate Division remanded for trial after concluding that the expert’s opinion was only partially a net opinion. The appeals panel noted the trial court’s refusal to allow DeLeon a reconsideration hearing to clarify the perceived deficiencies in the expert opinion on which DeLeon’s case rested.

The defense claimed that the gun was not defective and conformed with all applicable design, engineering and safety standards.

The defense also said the accident could not have happened as the plaintiff maintained because the gun’s fluid pressure would have been too great for him to loosen the tip-guard retaining nut or to turn or inadvertently bump the tip from a blocked position.

In addition, the defense produced a video of testing of the same model gun, which showed that spray did not come out as a result of loosening the nut or inadvertently bumping the tip into a spray position.

The defense stipulated to a certain amount of medical expenses and lost wages, based on a workers’ compensation lien. Otherwise, the defense argued, DeLeon had been well treated and had achieved a good recovery, given the circumstances.

The jury found that the spray gun was not defective.

Plaintiff Attorneys: Scott Sinins, Jeffrey Kampf, Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, Newark.

Defense Attorneys: Denise Fontana Ricci, Wade Clark Mulcahy, Mountainside (for Graco Inc.); Scott Rusert, Gaskins Bennett Birrell Schupp, Minneapolis (for Graco Inc.); Jeanne Walsh, Romando Zirulnik Sherlock & Demille, East Hanover (for Warrenville Hardware); Robert D. Brown Jr., Gibbons, Newark (for Sherwin Williams, Sherwin Williams Development, Sherwin Williams Diversified Brand, The Sherwin Williams Co.).

Trial Details: trial length: 8 days; jury deliberations: 29 minutes; jury poll: 7-0; jury composition: four men, three women.

Plaintiff Expert: Paul Tutton, P.E., engineering, Malvern, Pa.

Defense Expert: None reported.

This report is based on court records and information from plaintiff counsel and by defense counsel for Graco.

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