New York Verdicts

Plaintiff(s):

Estate of Marilyn Dershowitz (Female, 68 Years)

Plaintiff Attorney(s):

Ben B. Rubinowitz;
Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz;
New York,
NY,
for
Estate of Marilyn Dershowitz ■ Peter J. Saghir;
Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz;
New York,
NY,
for
Estate of Marilyn Dershowitz

Plaintiff Expert(s):

Gary Crakes; Ph.D.; Economics; Cheshire,
CT called by:
Ben B. Rubinowitz, Peter J. Saghir ■ Robert Genna; P.E.; Accident Reconstruction; Commack,
NY called by:
Ben B. Rubinowitz, Peter J. Saghir

Defendant(s):

United States of America

Defense Attorney(s):

Andrew E. Krause;
The United States Attorney’s Office, Southern District of New York;
New York,
NY,
for
United States of America ■ David S. Jones;
The United States Attorney’s Office, Southern District of New York;
New York,
NY,
for
United States of America ■ Tara M. La Morte;
The United States Attorney’s Office, Southern District of New York;
New York,
NY,
for
United States of America

Defendant Expert(s):

Leonard Freifelder;
Economics;
New York,
NY called by:
Andrew E. Krause, David S. Jones, Tara M. La Morte

On July 2, 2011, plaintiff Marilyn Dershowitz, 68, a retiree, was bicycling on West 29th Street, near its intersection at Ninth Avenue, in Manhattan. As she approached 10th Avenue, she encountered a parked trailer that perpendicularly extended into the street from a U.S. Postal Service facility that was located on one side of the road. While Dershowitz was maneuvering around the trailer, she fell beneath the rear passenger-side tires of a 7-ton truck that was being driven by Ian Clement, an employee of the U.S. Postal Service. Dershowitz sustained a fatal injury. Dershowitz’s widower, Nathan Dershowitz, acting as executor of his wife’s estate, sued the U.S. Postal Service’s operator, the United States of America. The estate alleged that Clement was negligent in the operation of his vehicle, that an unidentified U.S. Postal Service worker was negligent in his or her operation of the parked trailer, that the drivers’ negligence caused the accident, and that the United States of America was vicariously liable for each driver’s actions. The matter proceeded to a bench trial. The estate’s counsel contended that the trailer was parked in a manner that blocked a portion of West 29th Street and created a hazard. The estate’s expert opined that the trailer’s presence forced Dershowitz into the path of Clement’s truck. The estate’s counsel also claimed that the truck struck Dershowitz while Clement was attempting to pass Dershowitz’s bicycle. They claimed that Dershowitz fell onto the roadway and was quickly struck and crushed by the truck’s rear passenger-side tires. They contended that Clement should have yielded. Clement claimed that Dershowitz simply fell onto the roadway; that she was not struck before falling beneath the truck. Two witnesses agreed. The witnesses claimed that Dershowitz attempted to stop her bicycle by applying one of her shoes to the roadway. They claimed that she lost her balance and fell beneath the truck.

Dershowitz sustained crush-induced injuries of her torso. Mr. Dershowitz, who was present when the accident occurred, claimed that his wife was emitting a pulse, blinking, gasping and squeezing one of his hands, though she did not speak. A witness corroborated his claims. Paramedics arrived some five minutes after the accident and did not detect a pulse. Ms. Dershowitz was placed in an ambulance, and she was transported to Bellevue Hospital Center, in Manhattan. She did not regain consciousness, and she was soon pronounced dead. The estate’s counsel contended that Dershowitz endured at least 2.5 minutes of suffering before expiring. The estate’s counsel claimed that Ms. Dershowitz, formerly a court-appointed referee, had intended to launch a mediation practice in January 2012. Dershowitz, 68, died July 2, 2011. She was survived by her husband and two adult children. The estate sought recovery of wrongful-death damages that included a total of $13,632.15 for Dershowitz’s funeral and burial, a total of $300,000 for her children’s past loss of parental guidance, a total of $1.8 million for her children’s future loss of parental guidance, $500,000 for her pain, suffering and fear of impending death, and a total of $6,374,000 for past and future loss of earnings, past and future loss of pension benefits, past and future loss of Social Security benefits, and past and future loss of household services. Defense counsel contended that Dershowitz did not endure conscious pain or suffering, that her children were accomplished, successful adults who did not require guidance, and that her potential earnings were speculative.

Judge Sarah Netburn found that the United States of America was entirely liable for the accident. She opined that Clement was negligent in the operation of his truck and that another U.S. Postal Service employee was negligent in his or her positioning of the parked trailer. Netburn determined that the estate’s damages totaled $4,646,548.15.

Estate of Marilyn Dershowitz: $701,740 Personal Injury: Past Lost Earnings Capability; $1,718,595 Personal Injury: future lost earnings (8.78 years); $273,393 Personal Injury: past loss of pension benefits; $1,015,118 Personal Injury: future loss of pension benefits (13.66 years); $68,235 Personal Injury: past loss of Social Security benefits; $307,834 Personal Injury: future loss of Social Security benefits (13.66 years); $51,067 Wrongful Death: Past Lost House Hold Services; $146,934 Wrongful Death: Future Lost House Hold Services; $13,632 Wrongful Death: Funeral Burial Expense; $300,000 Wrongful Death: Survival; $50,000 Wrongful Death: loss of parental guidance

Judge:

Sarah Netburn

Demand:

$5,000,000

Offer:

$1,000,000

Trial Length:

7
 days

This report is based on information that was provided by plaintiff’s and defense counsel. Additional information was gleaned from court documents.