New Jersey’s Top 20 personal injury recoveries leveled off in 2013 after a major spike the previous year.
The Top 20 awards for the 12 months ending Sept. 1, 2013, totaled $116.3 million, down from $204.4 million last year but more in line with $125.2 million in 2011.
The top payout this year — $16.3 million — was less than half of last year’s top award of $33.9 million and even lower than last year’s second-place award of $20.5 million.
The average award was $5.8 million, down 43 percent from $10.2 million last year.
And the median award was $5 million, a decline of 32 percent from last year’s median of $7.32 million.
Placing in 20th spot this year was an award of $3.35 million, which is $1 million lower than the last-place award in 2012.
The 2013 numbers, however, are similar to those from 2011, with the median recovery amount differing by only $200,000.
Decreases in 2013 were also evident in the next tier of recoveries, ranked 21 to 30. This year’s grouping ranges from $3.2 million to $2.5 million, compared with $4.2 million to $3.375 million last year (see “Ten More Awards Worth Noting”).
Again, there is a similarity with 2011. The second-tier numbers in 2013 were very similar to those reported two years ago.
The top two cases this year involved injuries to very young people. In Patterson v. Irvington Board of Education, a 15-year-old boy was left paralyzed below the neck after being beaten by a classmate in a boys’ restroom.
In Chambers v. 440 Elizabeth Avenue Corp., a seven-year-old girl was trapped in a motorized parking-lot gate, cutting off her breathing for an unknown period of time and leaving her with severe cognitive limitations.
One significant case this year, In re Pelvic Mesh/Gynecare Litigation, resulted in a verdict for $11 million. However, $7.76 million of that amount was for punitive damages. Compensatory damages were $3.35 million. Therefore, this recovery is ranked at number 20 on our list, rather than number 2.
As usual, the top 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.
1. High school student awarded $16.3M after beating left him paralyzed
An Essex County jury, on Oct. 12, 2012, awarded $16.3 million to an Irvington High School student who was left paralyzed from a bathroom beating.
Due to a high-low agreement, Anwar Patterson’s recovery will be capped at $10 million in Patterson v. Irvington Board of Education, ESX-L-1093-09.
Patterson and his assailant, Danzell Ebron, were in the summer-school program at the high school in 2008. On July 14, Ebron was involved in an off-campus, after-school dustup with Patterson’s friends and possibly Patterson himself, according to attorneys in the case.
Ebron, then 17, was arrested. Assistant Principal Andrea Tucker, who learned of the incident, called Irvington police to inform Ebron and his father that Ebron was being dismissed from the summer program.
But Tucker failed to file a dismissal notice with the main office as required by school procedure.
Ebron and his father came to school the next morning, July 15, and told the administrator on duty, Acting Principal Moses McKenzie, that Ebron had been accosted the day before.
McKenzie had not been at school the prior day and was unaware Ebron had been dismissed from the program. Nor was there a record, since Tucker did not file the necessary paperwork. McKenzie said he would investigate, and sent Ebron to class in the interim.
On the way to class, Ebron encountered Patterson, then 15, whom he believed attacked him the day before. The two ended up fighting in a boys’ bathroom. Patterson suffered head and brain injuries that left him paralyzed below the neck.
Ebron pleaded guilty to aggravated assault and was sentenced to five years’ incarceration.
Patterson sued the board of education, contending it failed to meet its duty of protecting students from harm.
The suit charged the school negligently allowed Ebron into the building despite his dismissal the day before. The suit further alleged that Ebron, who had a disciplinary history, should have been dismissed from the summer program even earlier, because he had three unexcused absences the prior week.
The board argued that Ebron was sufficiently notified — by Tucker — that he was not to return to school, and that the school acted reasonably and could not have foreseen Ebron’s retaliatory act. The board also said Ebron’s attendance history wasn’t clear.
During the three-week trial before Superior Court Judge Sebastian Lombardi, the parties entered an agreement guaranteeing a floor recovery of $2 million and ceiling of $10 million.
The eight-member jury unanimously found that the school and Ebron — whom the board named as a third-party defendant — were at fault and proximately caused the accident.
Jurors assigned 80 percent liability to the school and 20 percent to Ebron. They awarded $10 million for future medical expenses, $3.3 million for future pain and suffering, $2 million for future lost wages, $744,000 for past medical expenses, and $350,000 on Patterson’s mother’s loss-of-services claim.
“The jury really understood that the thing could have been avoided and prevented on so many occasions,” says Patterson’s lawyer, Jack Wurgaft of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins in Springfield.
The school “had no reasonable explanation for anything they did wrong,” he adds.
Ronald Hunt of Hunt, Hamlin & Ridley in Newark, the board’s regular counsel, says the settlement “worked out for everybody” because the plaintiff recovered a large sum, but it was within the board’s insurance coverage. The board is “very saddened by [Patterson's] injuries,” he adds.
Michael Cifelli of Scarinci Hollenbeck in Lyndhurst, the board’s outside counsel, confirms the facts but declines further comment.
2. Child crushed by automatic gate awarded $10.5M for injuries
An Essex County judge, on June 7, approved a $10.5 million settlement on behalf of a child who was allegedly brain damaged due to oxygen loss when she was trapped in a motorized parking-lot gate.
According to the suit, Chambers v. 440 Elizabeth Avenue Corp., Aniyah Chambers was playing outside her father’s apartment at 440 Elizabeth Avenue in Newark on May 6, 2006, when the lateral moving gate trapped the 7-year-old and cut off her breathing for an unknown period of time.
Chambers’ mental development stopped at that point and she suffers from severe cognitive limitations, says plaintiff attorney Kenneth Berkowitz, of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham.
The suit, lodged by her mother, Theresa Jones, alleged that the gate did not stop when it encountered an obstruction and that security personnel should have seen the child on surveillance footage and intervened.
Named defendants were the building owner, 440 Elizabeth Avenue; manager Marzulli Realty; Christy Overhead Door, which maintained the gate and had installed a new motor; and Motivated Security Services.
Superior Court Judge Dennis Carey approved the settlement, by which Marzulli and 440 Elizabeth Avenue jointly pay $5.5 million, Christy $2 million and Motivated Security $3 million.
Stephen Hopkins, of Braff, Harris & Sukoneck in Livingston, for Marzulli and 440 Elizabeth, confirms his clients’ contribution. Brian Steller of Connell Foley in Roseland, for Motivated Security, declines comment. Joseph Kelley of Zirulnik, Sherlock and DeMille in East Hanover, for Christy, did not return a call.
3. Hospitals and caregivers pay $7.4M in suit over beaten child’s treatment
An Essex County judge approved a $7.4 million settlement, on May 23, with two hospitals and their staff members for negligent treatment of an infant victim of child abuse.
The suit, Escobar v. Newark Beth Israel Medical Center, was brought on behalf of Jadiel Velesquez, now 4, of Jersey City, who on July 16, 2009, when he was four months old, endured a severe beating by his father that left him with brain damage. The suit claimed the beating was the result of negligence by the defendant hospitals, which had treated the child on two prior occasions of suspected abuse.
On May 28, 2009, a Division of Youth and Family Services employee brought Jadiel to Newark Beth Israel Medical Center for an evaluation of child abuse reported by his maternal grandmother. The treating doctor, Felix Amaefuna, noticing the child was bleeding from the blood vessels of both eyes, with bruises on both sides of the face, ordered a series of X-rays of the entire body and a CT scan of the head. Amaefuna reported the CT findings as negative and discharged Jadiel on the same day with a diagnosis of “suspected child abuse.” However, two radiologists reviewing the CT results found fluid on the brain.
Three weeks later, Jadiel’s parents brought him, bleeding from the mouth, to Overlook Medical Center’s Union Campus. Attending physician Herschel Kupfer diagnosed a lacerated frenum, the tissue connecting the tongue to the floor of the mouth. The hospital discharged Jadiel, noting the parents’ explanation that he sustained an injury when his father tried to put a bottle in his mouth.
After the July 16, 2009, beating, Jadiel was taken from his parents and placed with his grandmother. The father was arrested and convicted of aggravated assault and child cruelty.
The case was settled after mediation with former Judge Eugene Codey.
Amaefuma and Beth Israel paid $4.5 million. Radiologist Suzanne Aquino and her employer, Nighthawk Radiology Services, paid $475,000. Radiologist Jeffrey Lautin and his employer, Newark Diagnostic Radiologists, paid $750,000. Kupfer and his employer, Emergency Medical Associates, paid $1.19 million. Overlook and nurses Gina Ocasio and Glena Valdez paid $560,000.
Superior Court Judge James Rothschild gave final approval on May 29 and awarded $1,769,374 in fees and $139,169 in expenses to plaintiff lawyer David Mazie, of Mazie, Slater, Katz & Freeman in Roseland.
4. Burlington County jury awards $6.9M to electrocuted roofer
A Burlington County jury awarded $6.9 million, on Feb. 6, to a worker electrocuted on a Mount Laurel warehouse roof, in Shea v. American Honda Motor Co.
On June 26, 2007, Charles Shea backed into a live wire leading to a spot on the roof where a condensing unit had been removed. The shock threw him about 20 feet, causing disc injuries, says his attorney, Alfred Falcione of Flynn & Associates in Cherry Hill.
Shea sued the warehouse owner, American Honda Motor Co.; Trane Air Inc., which was hired to perform building maintenance; and Falasca Mechanical Inc., which serviced the condensing unit 10 years earlier.
The jury found American Honda and Trane each 50 percent liable but no-caused Falasca and Shea’s employer, Jottan Roofing Co. of Florence, which American Honda had brought in as a third-party defendant based on an alleged indemnification agreement.
Shea, now 40, has undergone a disc fusion and insertion of a stimulator but still has pain and is unlikely to be able to return to work, Falcione says.
The jury awarded Shea $2.8 million for past and lost earnings, $2 million for pain and suffering, $2 million for future medical expenses and $110,365 for past medical expenses. Falcione says the award will be offset by a $131,000 workers’ compensation lien.
Superior Court Judge Patricia Richmond presided at trial.
American Honda and Trane were represented by Christopher Carton of K&L Gates in Newark, and Falasca by Robert Cerino of the law office of J. Mark Pecci II in Philadelphia. Carton and Cerino did not return calls. CNA Ins. Co., which provided coverage for Jottan, retained James Kane of Carroll, McNulty & Kull in Basking Ridge, who confirms the verdict.
5. TIE—$6.6M settlement in suit alleging brain damage from fetal asphyxia
A Mercer County judge approved a $6 million settlement in a suit blaming a doctor and nurses for a newborn’s brain injuries allegedly due to asphyxia, Kiesewetter v. Martin.
On Aug. 23, 2006, Ann Marie Kiesewetter, pregnant with twins, went to University Medical Center at Princeton with low blood pressure, according to her lawyer, Carol Forte of Blume Goldfaden Berkowitz Donnelly Fried & Forte in Chatham.
Only one of the fetuses could be tracked by electronic monitoring. Dr. Robert Martin instructed Nurse Bronwyn Smith to keep trying to find the other one. She tried for several more hours to no avail, Forte says.
Around 6 p.m., about three hours after Martin first saw her, Kiesewetter was taken to an operating room for a Caesarean section and it was discovered that one fetus was getting insufficient oxygen and was close to death, according to Forte. The child, Henry, suffered brain injuries resulting in a form of cerebral palsy; has cognitive issues; and his ability to walk, speak and be toilet trained is impeded, she says.
Kiesewetter sued Martin and his practice, Princeton Medical Group, Smith, Princeton Healthcare System, and nurses Dzung Kim Vu and Julie Greenfield, claiming Henry’s fetal distress should have been discovered and the Caesarean performed sooner.
The defendants disputed the extent of Henry’s injuries, said he was injured when Kiesewetter got to the hospital and claimed an earlier delivery would not have helped, Forte says.
The parties settled in January. Coverys, Martin’s insurer, agreed to pay $350,000, and Princeton Insurance Co., for the other defendants, $5.65 million.
Superior Court Judge F. Patrick McManimon approved the settlement on Jan. 10.
Martin was represented by Gregory Giordano of Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey in Lawrenceville; Smith by James Ronan of Ronan, Tuzzio & Giannone in Little Falls; Princeton Healthcare System by Beth Hardy of Farkas & Donohue in Florham Park; Princeton Medical Group by Thomas Heavey of Grossman & Heavey in Brick; Vu by Manasquan solo Joseph DiCroce; and Greenfield by Timothy Crammer of Crammer & Bishop in Absecon. None returned a call.
5. TIE—$6.6M settlement for laborer who lost leg after workplace fall
A construction worker whose right leg was amputated after a workplace accident agreed on May 15 to a $6.6 million settlement of his Bergen County suit, Pascucci v. JG Drywall.
On Nov. 18, 2009, Steven Pascucci was on an extension ladder at a demolition project in Leonia, using a sledge hammer to pound a steel beam, when he fell eight feet to the ground.
He suffered multiple fractures and nerve damage due to lack of blood supply in both legs and underwent seven surgeries related to the fractures and blood loss. Swelling and pain in his right leg worsened over time, and three years after the accident he elected to have that leg amputated above the knee. Now 51, he is fitted with a prosthetic device.
Pascucci, represented by James Lynch and Arthur Lynch of Lynch, Lynch, Held & Rosenberg in Hasbrouck Heights, sued JG Drywall of Elmwood Park, the general contractor; and Triple B Fabricating of Passaic, the subcontractor for steel demolition. He claimed the defendants failed to provide a safe workplace, as industry standards dictate that a ladder should not be used as a work platform in a demolition project.
The defendants claimed Pascucci’s employer, Adele Erectors of Trenton, was responsible for his safety; that Pascucci was negligent for swinging a sledge hammer from a ladder; and that a scissor lift and cherry picker were available for his use. They also claimed he failed to heal from nerve damage because of his cigarette smoking.
The settlement was reached during jury selection before Superior Court Judge Alexander Carver III. JG Drywall, which had a $1 million liability policy with Gotham Ins. Co. and a $5 million excess policy with American Guarantee and Liability, is paying $3.4 million. Triple B, which had a $1 million liability policy with Peerless Ins. Co. and a $5 million excess policy with RSUI Indemnity, is paying $3.2 million.
JG Drywall was represented by John Gonzo, head of a Hackensack firm, who confirms the settlement. Triple B Fabricators’ lawyer, Gerald Kaplan of Methfessel & Werbel in Edison, did not return a call.
7. $5.9M settlement in suit alleging that failure to treat infection led to paraplegia
A woman who became paraplegic after her spinal infection went untreated agreed on Nov. 27 to a $5.9 million settlement of her Essex County suit, Lee v. Agresti.
Andrea Lee, of Irvington, was diagnosed with osteomyelitis of the lumbar spine while a patient at the University of Medicine and Dentistry of New Jersey in Newark, in January 2007. When she was transferred to a rehabilitation center, the infectious disease doctors at UMDNJ wrote a note recommending that she receive intravenous antibiotics for the next six weeks. She was moved to Arbor Glen, a rehabilitation center in Cedar Grove, where she received antibiotics for the duration of her 10-day stay.
But when she was discharged, no provision was made for further antibiotics. She was readmitted to UMDNJ 10 days later, and antibiotic treatment resumed, but the condition in her spine worsened. Ultimately she became a paraplegic due to destruction of vertebrae.
Lee, now 54, sued UMDNJ; Pompton Care, owner of Arbor Glen; and James Agresti, the physician who discharged her from the rehabilitation center. Agresti contended that he was unaware of the recommendation from UMDNJ for six weeks of antibiotics, since the hospital sent the rehabilitation center a partial copy of Lee’s chart, which did not contain the recommendation to the rehab center.
The plaintiff’s lawyer, Carol Forte of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham, countered that Agresti knew or should have known that osteomyelitis called for long-term antibiotic treatment and that he knew the instructions from UMDNJ were missing but failed to pursue them diligently.
The claim against UMDNJ is pending. In a settlement, Agresti agreed to pay $950,000 and Pompton Care agreed to pay $4.95 million.
William Brennan of Callan, Koster, Brady & Brennan in Shrewsbury, who represented Agresti, and Thomas Conlon of Orlovksy, Moody, Schaaf, Conlon & Gabrysiak in West Long Branch, representing the rehab center owner, did not return calls.
8. TIE—$5M settlement for shooting in school playground
Aeriel v. State-Operated School District for the City of Newark: The Newark school district and the state of New Jersey agreed to pay $5 million in an Essex County suit over the shooting of four people, three fatally, at the Mount Vernon School playground on Aug. 4, 2007.
The suit alleged that the district was negligent in failing to lock the playground, despite its reputation as a gang hangout. The area was poorly lit, security cameras were broken and a guard saw the open gate but did nothing about it, according to the Essex County suit.
The victims had been listening to music when they were assaulted, robbed and shot by six assailants, all of whom were convicted and imprisoned.
The plaintiffs are Natasha Aeriel, now 25, who survived, and the estates of her brother, Terrance Aeriel, then 18, and Iofemi Hightower and Dashon Harvey, both 20.
The suit was brought under a Tort Claims Act exemption for public entities that maintain property in a hazardous condition. The state Department of Education was a defendant because the district is under state control.
The settlement, which came after three-and-a-half weeks of trial, provides for payment of $3 million by the state and $2 million by the district.
Superior Court Judge Paul Vichness presided at the trial.
The plaintiff lawyers were Ronald Riccio, Michael Marone and Robert Scrivo of McElroy, Deutsch, Mulvaney & Carpenter in Morristown. Riccio declines to say how the settlement will be distributed. The district’s lawyers were Vito Gagliardi Jr. and Eliyahu Scheiman of Porzio, Bromberg & Newman in Morristown. Scheiman, and the state’s attorney, Leonard Leight of Morgan Melhuish Abrutyn in Livingston, decline comment.
8. TIE—$5M settlement for worker hurt in scaffolding collapse
A construction worker injured in a scaffolding collapse accepted $5 million from the site contractors on Oct. 1 to settle his suit, Andalora v. ICS Builders.
Dominic Andalora was doing interior carpentry work on Oct. 6, 2006, at a bank in Franklin Township, Sussex County, while on scaffolding about six feet high. The scaffolding’s wheels had not been locked and it rolled into a hole excavated for plumbing, says Andalora’s attorney, Bruce Stern.
Andalora landed on his head, suffering a traumatic brain injury that has left him with impulsivity and behavioral problems and difficulty paying attention and concentrating, says Stern, of Lawrenceville’s Stark & Stark. Now 55, Andalora has been declared completely disabled by the Social Security Administration, Stern adds.
Andalora sued the general contractor, ICS Builders Inc. of New York, and the plumbing subcontractor, R.D. Mechanical Corp. of Fairfield. ICS filed a third-party claim against Andalora’s employer, Swift Construction LLC of Matawan.
The parties settled after a conference with Essex County Superior Court Judge James Rothschild.
Swift Construction’s carrier, Hartford Ins. Co., will pay $3 million but will seek to recoup some of it from ICS’s carrier, Mt. Hawley Ins. Co., Stern says. R.D. Mechanical’s carrier, Ohio Casualty Ins. Co., will contribute $2 million. The settlement will be offset by a workers’ compensation lien of $900,000.
Mt. Hawley retained Alfred D’Isernia, of New York’s Ford Marrin Esposito Witmeyer & Gleser; Hartford, Thomas Mulcahy, of Bedminster’s Purcell, Mulcahy, O’Neill & Hawkins; and Ohio Casualty, Edward Thornton, of Methfessel & Werbel in Edison. All confirm the settlement amount.
8. TIE—$5M award for girl struck by driver, after exiting school bus
A Camden County jury awarded $5 million, on June 19, to a girl permanently injured by a motorist who claimed a school bus driver left her in harm’s way.
Crystal Burkert, a 17-year-old Kingsway High School student, will recover $3.75 million because a defendant settled before trial in Burkert v. Holcomb Bus Service Inc.
Burkert claimed that on Dec. 3, 2007, she was let off the bus about three-tenths of a mile from her home in South Harrison, forcing her to walk on Commissioners Road, a 45-mile-an-hour stretch that has no sidewalk or shoulder. As she walked on the right side, Michael Taggart, a driver going in the opposite direction, fell asleep, drifted and hit her, says her lawyer, George Badey III of Badey, Sloan & DiGenova in Philadelphia.
Burkert suffered pelvic fractures, back injuries, a protruding lumbar disc with nerve damage and a traumatic brain injury resulting in cognitive and memory issues, Badey says.
She claimed the bus driver, Saye Thomas Yor Yor, an employee of Holcomb Bus Service Inc. of Bellmawr, habitually let Burkert off in a dangerous area. Holcomb claimed the car driver was a superseding intervening cause, or at least more to blame, Badey says.
Taggart settled four years ago through his insurer for an undisclosed sum, Badey says.
Holcomb made pretrial offers of $80,000 and $125,000. Burkert suggested $500,000, but no settlement was reached, Badey says. Michael DiGenova, Badey’s partner, was co-counsel.
After trial before Superior Court Judge Louis Meloni, the jury found Holcomb 75 percent and Taggart 25 percent at fault, and awarded $5 million for past and future pain and suffering. Burkert will recover $3.75 million.
Holcomb’s lawyer, Arthur Donnelly III of Zirulnik, Sherlock & DeMille in Mount Laurel, did not return a call. Taggart was represented by William Lundgren of Green, Lundgren & Ryan in Cherry Hill, who has since retired, and the firm declines comment.
8. TIE— $5M settlement in suit tying boy’s brain injury to intubation
An Essex County judge, on July 9, approved a $5 million settlement in a suit on behalf of a boy who allegedly suffered an undetected seizure and resulting brain injury at a Newark hospital, Idrovo v. UMDNJ.
In March 2007, Harry Idrovo, then 7, of Elizabeth, was taken to the University of Medicine and Dentistry of New Jersey with respiratory distress, admitted to the pediatric intensive care unit and diagnosed with severe asthma, says plaintiff lawyer William Lane of O’Connor Parsons Lane & Noble in Westfield.
For three days he was intubated, requiring drugs to shut off his gag reflex. During that time, he suffered a nearly three-hour seizure that was not recognized because the paralysis stilled the accompanying shaking movements. Lane says it should have been detected by its effect on his blood pressure and heart rate, since Idrovo had a history of seizure disorder.
With his brain deprived of oxygen, Idrovo’s seizure worsened his speech and developmental delays. He was left unable to speak, cognitively impaired and with left-side weakness, says Lane, adding that the boy needs a wheelchair or assistance in walking.
The settlement, entered in December with UMDNJ and three pediatric ICU physicians — Jose Nevado, Dianne Sinquee and Victor Uduaghan — provides for $4.8 million for Idrovo and $100,000 each for his parents, Vilma Conde and Gustavo Idrovo.
Defense lawyer John Dughi, of Cranford’s Dughi Hewit & Domalewski, confirms the settlement, which Superior Court Judge Christine Farrington approved at a friendly hearing.
12. $4.7M for elevator injury
Thomas v. Schindler Elevator Corp.: A Hudson County jury awarded $4.735 million, on May 16, to a man who injured his neck riding in an elevator.
Ralph Thomas, of Wayne, was on his way down from the 27th floor of the 37-story Newport Tower in Jersey City on Feb. 27, 2009, on an elevator descending at 1,000 feet per minute, when it came to an abrupt halt, says his lawyer, Edward Capozzi of Seigel Capozzi in Ridgewood.
Thomas, then 47, herniated a disk in his neck at C5-6, for which he had replacement surgery. He can no longer engage in former activities like golf, skiing and softball, Capozzi says.
Thomas sued elevator maker Schindler Elevator Corp. and building owner Brookfield Properties.
At trial before Superior Court Judge Martha Royster, the jury found negligence by both companies but no proximate cause regarding Brookfield. Schindler was 100 percent liable for the entire $4.735 million verdict, all non-economic damages, including $235,000 on a per quod claim by Thomas’ wife.
Capozzi says the defendants never offered more than $300,000 to settle and tried to blame the accident on a transient power disturbance, but a witness from PSE&G denied that.
Defense lawyers James Sonageri, of Sonageri & Fallon in Hackensack, for Schindler, and William Smith, of Faust, Goetz, Schenker & Blee in New York, for Brookfield, did not return calls.
13. $4.35M for motor vehicle crash injuries
Naranjo v. Sanofi-Aventis US:Two people who claimed neck and back injuries in a New Jersey Turnpike crash accepted a total of $4.35 million in their Essex County suit on June 10.
On Jan. 14, 2011, Vanessa Naranjo alleges she was driving north in Newark when struck in the rear by a car driven by Daniel Colon and owned by his employer, Sanofi-Aventis US of Bridgewater. Naranjo, now 33, suffered neck and back injuries and required cervical and lumbar fusion surgery. A passenger, Jonathan Bish, now 41, suffered neck and back injuries and underwent lumbar fusion surgery.
Naranjo, a call center employee, and Bish, a bouncer at a bar, could not work after the accident, says John Vlasac Jr.,of Vlasac and Shmaruk in Metuchen, who, with Boris Shmaruk of the same firm, represented them.
The plaintiffs sued Sanofi-Aventis US and Colon. Sanofi agreed to pay, on behalf of Colon and itself, $3.6 million to Naranjo and $750,000 to Bish.
The parties settled after mediation with former Superior Court Judge Donald Goldman, now with Starr, Gern, Davison & Rubin in Roseland.
Joseph Manning of Marshall, Dennehey, Warner, Coleman & Goggin in Roseland, who represented Colon and Sanofi, did not return a call.
14. $4.2M settlement for trucker who suffered leg amputation after accident
A truck driver who lost a leg allegedly as a result of a collision agreed, on Oct. 18, to a $4.2 million settlement of his Essex County suit, Martinez v. Inter-City Tire and Auto Center.
According to the complaint, Gadiel Martinez was driving an 18-wheel truck west on Tyler Street in Newark on June 8, 2006, when another 18-wheeler, headed east, made a left turn in his path. When Martinez swerved to avoid impact, his truck turned on its side and the driver’s door flew open. Martinez was ejected from the cab and was pinned under one of the truck’s tires. His injuries required an amputation of his left leg at the hip.
The oncoming truck was driven by Pierre Cazeault and owned by his employer, Ironbound Express of Newark. Cazeault was at the head of a line of trucks parked along the shoulder of Tyler Street as they awaited entry into the Port Newark Container Terminal, which leases the facility from the Port Authority of New York and New Jersey.
A dispatcher waved Cazeault to pull in just as Martinez approached from the opposite direction. Martinez was driving 35 to 40 mph in a 25-mph zone in rainy conditions. He was driving a truck owned by his father, Francisco Mejia. Its driver-side seat belt and the latch to the driver’s door were both broken at the time of the crash, and an investigation by Port Authority police found the truck’s brakes were improperly adjusted, says plaintiff lawyer Michael Gallardo.
Martinez sued Inter-City Tire and Auto Center of Elizabeth, which had serviced his truck’s brakes shortly before the accident. He also named Mejia, Cazeault and Ironbound Express, the Port Newark Container Terminal, and the Port Authority. He claimed the latter two were liable because the layout of the container terminal routinely resulted in a lineup of trucks on the shoulder of Taylor Street, which in turn created a hazard since they had to cross four lanes of oncoming traffic to enter the facility.
The defendants countered that the plaintiff was driving too fast and not wearing a seat belt, says Gallardo, of Ginarte, O’Dwyer, Gonzalez, Gallardo & Winograd in Newark, who assisted lead attorney Richard Winograd of the same firm.
Inter-City, Mejia, Ironbound Express, Port Newark Container Terminal and the Port Authority agreed to pay a total of $4,095,000 to Martinez and $125,000 to his wife per quod. Gallardo says that all the defendants paid into the settlement but that he can’t reveal the allocation.
Inter-City’s lawyer, Raymond Connell, of Dwyer, Connell & Lisbona in Fairfield, confirms the settlement and says his client’s share was $300,000.
The other defense lawyers did not return calls. They are David Kostus of Segal, McCambridge, Singer & Mahoney in Jersey City, for Port Authority; John Karpousis of Freehill, Hogan & Mahar in Jersey City, for Port Newark Container Terminal; James Kane of Carroll, McNulty & Kull in Basking Ridge, for Ironbound Express and Cazeault; and Marco DiFlorio of Salmon, Ricchezza, Singer & Turchi in Philadelphia, for Mejia.
15. Driver hurt in two-truck collision settles for $4.15M
A truck driver who claimed he was permanently injured in a crash accepted a $4.15 million settlement on Jan. 23, in Frazier v. Van Dyne.
According to the suit, Patrick Frazier was driving an empty 18-wheel tanker truck on May 28, 2011, on a service road connecting I-278 and U.S. Route 1&9 South near the Bayway Refinery in Linden, when another empty tanker, turning left from 1&9, cut into his lane, hitting his cab and forcing it into a concrete median.
Frazier, then 63, suffered a crushed lumbar vertebra that caused nerve damage and vertebral misalignment, underwent a seven-level spinal fusion, and now has urinary and bowel problems, back pain and difficulty walking, says his lawyer, Michael Cahill, of Rosenberg, Kirby, Cahill, Stankowitz & Richardson in Toms River.
Frazier claimed negligent operation by the other driver, Kenneth Van Dyne, an employee of Dana Transport Inc. of Avenel. The defense initially challenged liability but a video of the accident showed Van Dyne drove through a red arrow, Cahill says. At issue was the extent to which Frazier’s failure to wear a seat belt contributed to the severity of his injuries, he adds.
Cahill’s partner, Robert Rosenberg, and Van Dyne’s lawyer, Fair Haven solo Lorne Reiter, settled the Essex County suit during mediation with retired judge C. Judson Hamlin, now of counsel at Keefe Bartels in New Brunswick.
Cahill says Dana Transport’s primary insurer, Great West Casualty Co., paid $1.963 million, its excess insurer, Zurich, $2.187 million. Reiter did not return a call.
16. TIE—$4M recovery for driver hurt when runaway tire crushed his car’s roof
An Essex County jury awarded nearly $3.6 million, on March 19, to a driver injured when the roof of his Nissan Altima failed to withstand the impact of a flying tire that came loose from a truck. Another $500,000, paid in a settlement with the truck driver, brings the total recovery in Clanton v. Nissan North America to $4 million.
On July 17, 2006, Larry Clanton, then 45, was headed south on the Garden State Parkway when a 73-pound tire and tire assembly flew off a northbound truck and hit his roof header, says his lawyer, Cynthia Walters of Budd Larner in Short Hills.
The roof detached from its vertical side rails and pressed upon his head, breaking neck bones and leaving him permanently disabled, Walters says.
Chronic spasms interfere with sleep and create discomfort, his upper body strength is limited, his fingers curl, and he lacks sexual function and complete bowel control, she adds.
The alleged design defect was Nissan’s failure to attach the roof header in 2002 to 2006 Altima models to pillars on the sides, which allegedly would have enabled it to withstand the impact and disperse its force.
At trial before Superior Court Judge James Rothschild Jr., Nissan argued that no car design could have withstood the impact and claimed Clanton and truck driver Anthony Levito were speeding, says Walters.
The jury found Clanton suffered damages of $4,200,446, comprised of $324,470 in past lost wages, $572,976 in future lost wages, $1 million for future medical costs and $2,303,000 in noneconomic damages.
Fault was allocated 85 percent to Nissan, amounting to just under $3.6 million, and 15 percent to Levito, who had settled for his $500,000 policy limit. The net recovery was $4,070,379.
Defense lawyer Gerard Cedrone, of Lavin O’Neil, Ricci, Cedrone & DiSpio in Philadelphia, deferred to Nissan spokesman Steven Yaeger, who says the company did not cause the accident and is exploring its options.
Walters was assisted by Justin Van Dyke at the same firm.
16. TIE— $4M jury award for fall on icy hospital walkway
A woman who suffered ankle injuries slipping on an icy sidewalk won a $4 million verdict, on Aug. 20, in her Atlantic County suit, Kostera v. Bacharach Institute for Rehabilitation.
Carolyn Kostera, now 52, of Galloway, fell on Feb. 9, 2010, while walking into the Bacharach Institute for Rehabilitation in Pomona to teach a nursing class.
She alleged the institute was negligent in failing to ensure its sidewalks were free of ice. The defense argued Kostera was partially liable as she should have noticed the ice.
Kostera fractured her left ankle, which required seven surgeries and a fusion. She still has pain and limited mobility and has not returned to work at Atlantic Cape Community College, says her attorney, David Colleran, of the Colleran Law Firm in Philadelphia.
The institute was found 100 percent liable. Its carrier, Princeton Insurance Co., retained Timothy Crammer, of Absecon’s Crammer, Bishop & O’Brien, who did not return a call.
Superior Court Judge James Savio presided over the trial; his chambers confirmed the verdict.
18$3.95M settlement for pedestrian accident
Hruska v. Grujic Trucking LLC: A woman allegedly hurt when hit by a truck in a parking lot settled her Essex County suit for $3.95 million, on July 15.
In March 2011, a package delivery truck went into reverse and knocked over Elizabeth Hruska, then 79, as she was walking in a Cedar Grove CVS lot. The rear wheel ran over her pelvis, causing fractures and loss of skin on both thighs, says her lawyer, Anthony Riposta, who heads a North Arlington firm. She was hospitalized for five months, underwent 17 debridements and has scarring, deformity and pain.
Hruska asserted negligence claims against driver Jorge Trivino; truck owner Grujic Trucking; and FedEx Ground Package System Inc., which contracted with Grujic for package deliveries.
Riposta says FedEx is responsible for the full amount.
The defendants’ counsel, Catherine McGlone of Callahan & Fusco in East Hanover, did not return a call.
19. $3.4M jury award for surgical injury
Byfield v. LaMotta: A Burlington County jury awarded $3.4 million, on May 31, to a woman who suffered a bowel injury in a gynecological procedure.
On March 17, 2009, Danielle Byfield, then 35, went to Virtua Memorial in Mount Holly, where gynecologist Joseph LaMotta performed a uterine ablation, in which the uterine lining is removed with a heating mechanism. She returned on March 23 with severe abdominal pain, and LaMotta performed a hysterectomy. That day, surgeon Gregory Mukalian examined a part of her bowel for a possible injury but found none.
On March 26, Byfield returned, in sepsis and with an abdominal infection. A burn hole caused by the ablation was discovered, and that part of the bowel was surgically removed.
Byfield alleged in her suit that both doctors negligently failed to identify the injury during the second hospitalization and that the later complications could have been avoided.
She has permanent abdominal pain and psychological injuries, says her lawyer, Gary Ginsberg of Ginsberg & O’Connor in Mount Laurel.
At trial before Superior Court Judge John Harrington, the jury found LaMotta 65 percent liable and Mukalian 35 percent liable. The panel awarded $2 million for future pain and suffering and $1.5 million for past pain and suffering, but cut the award by $100,000 because Byfield failed to report for psychological counseling.
LaMotta settled, after the close of evidence but before the verdict, on undisclosed terms, says his lawyer, Joseph Lang of Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey in Lawrenceville.
Mukalian’s lawyer, John Talvacchia of Stahl & DeLaurentis in Runnemede, did not return a call.
20. Pelvic mesh user wins $3.35M in mass tort suit
An Atlantic County jury, on Feb. 28, awarded $3.35 million in compensatory damages in the first mass tort trial over Johnson & Johnson’s pelvic mesh implants. Three days later, an additional $7.76 million in punitive damages was awarded.
The panel delivered the 7-2 verdict after about eight hours of deliberation over three days.
The litigation, In Re Pelvic Mesh/Gynecare Litigation, No. 291, encompasses more than 2,100 suits claiming injuries from the Gynecare Prolift pelvic mesh product, made by J&J subsidiary Ethicon, of Somerville, and used to treat organ prolapse and urinary incontinence.
“We asked during closing arguments for the jury to send a message to J&J and Ethicon … and the jury sent that message,” says plaintiff counsel David Mazie, of Mazie, Slater, Katz & Freeman of Roseland.
Mazie calls the award “bulletproof because it’s well within New Jersey and U.S. Supreme Court guidelines” for punitive damages.
Superior Court Judge Carol Higbee previously ruled that plaintiffs who were administered Ethicon’s mesh products before approval by the federal Food & Drug Administration in 2008 would automatically be entitled to a trial on punitive damages on an award of compensatory damages, he adds.
Still, Ethicon has promised to appeal Thursday’s verdict as well as Monday’s, when the jury found Ethicon liable on failure-to-warn and fraudulent-misrepresentation charges. That 7-2 verdict came after eight weeks of trial, including five days of deliberation.
The jury’s compensatory damages award was made up of $1.1 million for pain and suffering, $1 million for future medical expenses, $500,000 for future lost wages, $385,000 for past medical expenses, $180,000 for past lost wages and $185,000 for a per quod claim.•