A plaintiff lawyer’s lapses in a wrongful death product-liability suit against Ford Motor Co., culminating in his complete disappearance, has lawyers at his former firm struggling to pick up the pieces.
Joseph Albano has "fallen off the face of the earth," said the firm in a May 31 letter to the judge in the federal case. He had personal and perhaps clinical problems that led him to neglect the case and eventually to quit work. When last heard from, he said he was seeking professional help.
Not only did a settlement crash and burn due to Albano’s blunders, but the judge dismissed the case on June 5, despite the firm’s plea to hold off for the sake of the beneficiaries — two daughters, aged 8 and 10, of a Newark police officer killed in the line of duty.
The firm, Fusco & Macaluso of Passaic, wants to get the proposed settlement back on the table and, if that fails, to have the case, Estate of Popolizio v. Ford Motor Co., 09-cv-1532, reinstated.
Tommaso Popolizio died on March 3, 2007, when his Ford Explorer police car collided, after a chase, with a Ford Crown Victoria police vehicle driven by an escaped arrestee.
The suit was filed in state court in 2009 against Ford, which removed it to federal court. An amended complaint added as a defendant Setina Manufacturing of Olympia, Wash., maker of the sliding-window partition between the front and back seats of the Crown Victoria that allegedly allowed the suspect to get free and steal the car.
Albano was assigned the case in May 2011. He clashed with defense counsel, who complained their efforts to schedule depositions of plaintiff experts were repeatedly canceled on short notice. On June 16, 2011, U.S. Magistrate Judge Michael Shipp ordered the expert reports stricken unless depositions were taken by July 12. They were not.
The defendants moved for summary judgment, but in February 2012, U.S. District Judge Esther Salas ordered the motions withdrawn when it appeared a settlement was near.
By June 2012, a deal was in the offing. According to a certification filed by Albano, it called for Setina to pay $30,000 and Ford to pay $15,000. Subtracting expenses of $29,051 left a balance of $15,948; attorney fees would be $3,987, or 25 percent of that sum, leaving $11,961 for the estate.
Since minor children were beneficiaries, Salas set a Nov. 10 date for a fairness hearing, but it never happened.
Setina’s lawyer, Denise Ricci of Wade Clark Mulcahy in Mountainside, says the settlement "fell through because there was never any documentation provided to the court why the breakdown was what it was." She adds that Salas had made clear to Albano what had to be submitted to get the pact approved.
A few weeks later, Ford and Setina moved for summary judgment. U.S. Magistrate Judge Steven Mannion, who had been assigned the case, scheduled a March 13 status conference. Albano appeared and said he would not file any opposition to the motions. Mannion set an Aug. 5 status conference.
The plaintiff firm’s managing partners, Anthony Fusco Jr. and Roy Macaluso, say none of this was known to them until Albano stopped showing up for work in late May.
According to Macaluso’s May 31 letter to Salas, Albano had a death in the family and asked for two days off, on May 23 and 24, just before Memorial Day weekend. But on the following Tuesday, he texted Macaluso, saying he could not return to work and was seeking professional help. All attempts to reach Albano by phone failed and messages were not returned.
Macaluso told Salas it was his opinion that Albano had experienced some form of mental and/or physical breakdown. He said that when he and Fusco searched Albano’s office, they found alcohol bottles in his desk and file cabinets.
They also reviewed his files — among them the Popolizio case. Macaluso said he spoke with Ford’s lawyer, James Dobis of Dobis, Russell & Peterson in Livingston, and learned of the failed settlement and of Albano not opposing the motions.
Macaluso urged Salas to postpone a ruling "in the fairness of justice and in the best interest of the client," so that he could attempt to resurrect the settlement. He also said the firm did not intend to allow the motions to go unopposed if a settlement could not be reached.
But Salas granted summary judgment on June 5, making no reference to Macaluso’s letter. She confined her opinion to finding that without expert reports, which had been excluded, an average juror could not evaluate defective-design claims against Ford and Setina.
Fusco says the firm will try to reopen the case.
Ricci says she can’t imagine how. "I don’t know if they can appeal a motion that was unopposed," she says.
Ricci calls it "a tragic case from the get-go" but adds that "there was never any doubt in our minds this case would have been a defense verdict in the end."
Dobis, for Ford, did not return a call seeking comment.
A woman who answered the phone at Albano’s home in Wayne, declining to identify herself, said she had "no idea" of his whereabouts. Fusco says Albano’s family filed a missing-person report with the Wayne police. "I can’t tell you what happened to him," Fusco says. "He informed my partner that he was seeking help and that’s the only thing we know."