Date of Settlement:

Oct. 29.

Court and Case No.:

U.S. District Court M.D.Pa. No. 3:11-cv-02315.

Judge:

Richard P. Conaboy.

Type of Action:

Dram shop.

Injuries:

Quadriplegia.

Plaintiffs Counsel:

Robert W. Sink and Robert Gibson, Law Offices of Robert W. Sink, Philadelphia.

Defense Counsel:

Zygmunt R. Bialkowski Jr., Margolis Edelstein, Scranton, Pa.; William M. Connor, Christie Pabarue and Young, Philadelphia; John P. Hendrzak, Hendrzak & Lloyd, Center Valley, Pa.; Richard B. Wickersham Jr., Post & Schell, Philadelphia.

Comment:

Plaintiff Jason Mercado settled for $5.65 million with Pub 570 of East Stroudsburg, Pa., and for $950,000 with Sticks N Stones Bar & Grill of East Stroudsburg. He became quadriplegic after driving drunkenly and crashing his car into a tree.

The settlement resolved the dram shop action Mercado filed against the two bars after he drank at both shortly before his 2010 accident.

According to Mercado’s settlement memorandum, the owners of both bars had told the Pennsylvania Liquor Control Board when applying for a liquor license that they would be managing the bars. But Mercado, now 36, alleged neither owner was at their establishment when Mercado was drinking at their bars and, instead, allegedly inexperienced bartenders and staff were running the operations.

In his settlement agreement, Mercado’s attorney, Robert W. Sink, noted a jury could return a verdict in excess of $50 million. Sink said that, at mediation, he initially sought the parties’ total policy limits of $12 million. Defendant Prime 570 Inc., the parent company of Pub 570, had $1 million in primary coverage and $10 million in excess coverage. Sticks N Stones had $1 million in coverage, Sink said. But representing the drunken driver made the case a difficult one to try, he said.

“The biggest difficulty is that we were representing the drunk driver,” Sink said. “And if the jury found the drunk driver was more than 50 percent at fault, then he would have gotten nothing. So there was a substantial risk of going to trial based on that alone.”

After attorney fees, costs and payouts for Medicare, Medicaid and insurance company liens, Mercado is netting about $3.2 million, Sink said. Mercado, who lives alone in an apartment in New York, requires round-the-clock care, including assistance with eating, dressing and going to the bathroom, according to the settlement memorandum. He also has continuous pain in his arms and legs despite not being able to use them, the court papers said.

The settlement was reached after a one-day mediation with Thomas Helbig in Scranton, Pa., in September.

According to the settlement memorandum, Mercado was playing on Pub 570′s softball team May 2, 2010. He and his teammates had a few beers during the games and at a barbecue afterward. They then went to Pub 570, where defendant Brittany DeBias was the bartender, according to the court papers.

DeBias was friends with Mercado and gave him free drinks and served him and his friends several beers and shots, according to court documents. A hostess and another bartender testified Mercado appeared drunk, Sink said in the memorandum.

Mercado allegedly told DeBias he was feeling “fucked up” and that he wanted to switch to seltzer water. DeBias allegedly responded that it was OK because she would drive Mercado home after her shift ended. Mercado allegedly gave DeBias his car keys and she gave him another beer, according to the court filing.

Sink said the time they arrived at Pub 570 was in dispute and could have been anywhere between 2:30 p.m. and 3:30 p.m. He said it was agreed that DeBias and Mercado left the bar at around 5:45 p.m. At that point, according to court documents, DeBias drove Mercado to Sticks N Stones. Mercado was visibly intoxicated, according to court documents, but he was served another one or two beers anyway.

After falling asleep on a bench at Sticks N Stones, Mercado awoke and couldn’t find his friends. Around 9 p.m., he found his keys laying on a table and started to drive home. He soon crashed his Jeep into a tree, fracturing his neck, according to court filings.

DeBias, who was an employee of Pub 570, was covered under the bar’s policy and any claims against her are resolved under Pub 570′s settlement, according to Sink and DeBias’ attorney, Richard B. Wickersham Jr.

According to Sink, the defense’s main arguments were that Mercado chose to drink in excess and then chose to drive. He said Pub 570 also argued that Mercado was not visibly intoxicated while at the first bar.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.