1 TOP 1OO verdicts of 2OO9 O verdicts of 2OO9 MONDAY, march 15, 2010
2 TOP 1OO verdicts of 2OO9 Methodology Throughout the year, VerdictSearch strives to report as many jury verdicts (and decisions and settlements) as possible from around the nation. In addition to accepting submissions from attorneys, we develop leads by scouring the courts, cultivating relationships with law firms and searching the Internet and other news sources, including ALM s large family of legal publications. Our exhaustive efforts allow us to present this list with every confidence that it is comprehensive. However, if we left anyone out, we apologize. Verdicts are ranked by gross award. They do not reflect reductions for comparative negligence or assignment of fault to settling defendants or nonparties; remittiturs, additurs and reversals; and attorney fees and costs (unless awarded by the jury). In situations where awards are automatically trebled or doubled by statute, the trebled amount determines rank. It is within the sole discretion of the editors to make adjustments to rank where necessary to reflect statutes that provide for election of remedies or other types of overlapping awards. Premises Liability Last year, premises-liability cases produced a median plaintiff s award of $242,782, which represents a percent increase over the prior four years combined median of $208, Don t be fooled by the spiky nature of the accompanying chart, the median has held relatively steady since 2005, varying by less than $50,000 in range. The relative consistency of these awards is repeated in the distribution of award amounts, as demonstrated by the pie chart, which shows that a premises-liability case is nearly as likely to produce an award between $50,000 and $99,999 as an award of $2.5 million or more. Of course, the consistent distribution is largely a product of the wide variety of injuries that are possible in these types of cases. THOUSANDS 2,500 2,000 1,500 1, % 24% 11% 15% $2,500,000 or greater $1,000,000 $2,499,999 $250,000 $999,999 $100,000 $249,999 $50,000 $99,999 under $50,000 11% 27% Motor Vehicle Plaintiffs in motor-vehicle cases have, on average, been receiving much more generosity from juries lately. After the median award in such cases jumped by 24.8 percent in 2008, last year saw an even bigger leap of 38.8 percent, to a median award of $48,480. This is an important development for defense attorneys, many of whom are working from insurance limits of $25,000 to $50,000 when attempting to settle these cases. For defense attorneys, the good news lies in the pie chart, which shows that 46 percent of all motor-vehicle awards fall below $25,000. For statistical purists: This year s averages do not reflect a $330 million motor-vehicle verdict that would have greatly skewed the results. THOUSANDS 1,250 1, % 10% 12% $1,000,000 or greater $250,000 $999,999 $100,000 $249,999 $50,000 $99,999 $25,000 $49,999 under $25,000 11% 10% 11% Wrongful Death After spikes on both the mean and median scales in 2008, wrongful-death verdicts settled back to somewhere near their 2007 range a year ago. The 2008 numbers, particularly the mean, may have been skewed by two monster verdicts that combined to exceed $840 million. In 2009, with only one case exceeding even $100 million, the median award fell to $2,185,000, which is largely in step with the results of the prior four years. The pie chart provides further definition of the award landscape, demonstrating that, since 2004, 40 percent of plaintiff s wrongfuldeath verdicts have landed in the range of $1 million to $4,999,999. THOUSANDS 16,000 12,000 8,000 4, ,800 2,450 2,100 1,750 1, % 8% 24% 8% 32% 16% $5,000,000 or greater $2,500,000 $4,999,999 $1,000,000 $2,499,999 $500,000 $999,999 $250,000 $499,999 under $250,000 2,500 2, % 6% 24% 1,500 25%
3 1,400 under $250,000 Medical Malpractice Mean and median medical-malpractice awards increased by 27.8 and 33.8 percent in 2009, after having remained fairly steady since However, little or no change was recorded in the stratification of these awards. As has been the case for several years, roughly 50 percent of medicalmalpractice plaintiff s verdicts fall between $250,000 and $2.5 million. And very little has changed at the top in the most recent five-year study, verdicts equaling or exceeding $5 million ticked up to 24 percent, from 22 percent. THOUSANDS 2,500 2,000 1,500 1, ,000 8,000 6,000 4,000 2, % 8% 6% 24% 13% 24% $5,000,000 or greater $2,500,000 $4,999,999 $1,000,000 $2,499,999 $250,000 $999,999 $100,000 $249,999 under $100,000 0 MEAN MEDIAN top 100 verdicts of 2009 Girl killed in crash with drunken driver who ran stop sign Case Type: Alcohol Involvement-Defendant Motor Vehicle Intersection Wrongful Death Case: Estate of Hagman v. Marcone, Hernando Co., Fla., Cir. Ct., , 9/30/2009 Plaintiffs Attorney: Steven Yerrid, The Yerrid Law Firm, Tampa, Fla. Defense Attorney: Bryan W. Reynolds, Reynolds, Stowell Parrino, P.A., St. Petersburg, Fla. Jury verdict: $330,516,483 Facts & Allegations At approximately 9:09 p.m. April 12, 2007, plaintiff Shelby Taylor Hagman, a 13-year-old high school student, was riding in her grandparents KIA Sedona van when Christopher S. Marcone ran a stop sign in his Dodge Dakota pickup at the intersection of Park Ridge Road and Sherman Hills Boulevard and hit their vehicle. Shelby sustained a fatal brain injury in the accident. Marcone, whose blood alcohol level was measured at.207, more than twice the legal limit, pleaded guilty to DUI manslaughter and three related charges. In March 2008, a judge sentenced him to 13 years in prison one year for every year of Hagman s life. Marcone was in his 20s at the time of the accident. Angela Stone, Shelby s surviving parent, sued Marcone for negligent operation of a motor vehicle. In a separate lawsuit, Stone also sued KIA, the van s manufacturer, claiming the seat belt her daughter was wearing was defective, causing Shelby s brain injury. The case against KIA is still pending. No allegations regarding the plaintiff s seat belt were presented to the jury. Emergency Medical Services arrived within one minute of the accident and found Shelby face down under a second row seat, with her head trapped in the belt and her feet up in the air. An autopsy report read to the jury indicated that the cause of Shelby s death was a blunt impact to the head that caused a transverse basilar skull fracture behind her left ear. Jason Tippin, a Hernando County Sheriff s Deputy, was coincidentally on routine patrol in the Ridge Manor neighborhood at the time of the accident. Tippin, who was driving behind Shelby s van, witnessed Marcone run the stop sign. Tippin said that Marcone was also injured in the accident and that he smelled of alcohol. Because of his inebriation, Marcone could not walk without assistance. Stone s accident reconstruction expert, Clarence Williams, from the Florida Highway Patrol, estimated that the KIA was hit by Marcone at a speed of mph. He based his estimate on crush damage to both vehicles and skid distance. Tippin, Williams and Floyd Bedford, a responding paramedic, testified that the damage to the vehicles was surprising because the accident took place in a neighborhood where a high-speed crash should not have occurred. There was a stipulation on the record that no bad faith/extra-contractual claim was made against Progressive Insurance Company. By pleading guilty to criminal charges, Marcone admitted civil liability for the accident. He was not present at trial, but was available to testify if needed. His attorney appeared on his behalf. Counsel for Stone told the jury, You can t put on a defense if there is no defense. Injuries/Damages death; face; fracture, skull; pelvis; traumatic brain injury Paramedics found Shelby in the car unresponsive and had to cut the seat belt away from her. Bedford called a trauma alert and removed her from the vehicle. Bedford initiated intubation while waiting for a medical helicopter to arrive, but Shelby never responded. Shelby sustained a basilar skull fracture in the accident, which caused a diffuse axonal brain injury with severe swelling and bleeding. She also suffered nonlife-threatening injuries to her face and pelvis. She was life-flighted to Tampa s St. Joseph s Hospital. Shelby s family withdrew life support about 16 hours after the crash, after being told that her brain injuries were incompatible with life. Stone sought survivorship damages for the wrongful death of her 13-year-old daughter. Several family members testified as to the special bond Stone shared with Shelby, who was born when Stone was just 17 years old and that they had been inseparable, growing up together. Stone s mother testified that Stone was allowed to crawl into bed with Shelby one last time before she died and that she cried, Please, God, don t take my baby from me. The parties stipulated to $79, in medical bills and funeral expenses. Stone s counsel asked the jury 3
4 to award $1 million per year in future pain and suffering for the estimated remaining 47 years of her life. Stone also sought punitive damages against Marcone equal to four times the jury s compensatory damages award. Result Jurors rendered a verdict in favor of the plaintiffs, awarding damages in the amount of $330,516, The award is believed to be among the largest DUI wrongful-death awards in the nation. Two days prior to trial, the parties reached settlement agreement, the terms of which are confidential. Tree stand s floor gave way, killing hunter strangled by harness Case Type: Products Liability Design Defect Products Liability Failure to Warn Case: Estate of Simonton v. L&L Enterprises Inc., Tippecanoe Co., Ind., Super. Ct., 79D CT-00020, 2/17/2009 Plaintiffs Attorney: Mike Phelps, Nunn Law Office, Bloomington, Ind. Defense Attorney: Not represented Jury verdict: $157,000,000 Facts & Allegations On Oct. 15, 2005, plaintiff s decedent Timothy Simonton, 42, a skilled laborer, was camping with his wife and 15-year-old stepson in Clay County. At about 8 a.m., Simonton went to scout for deer, which he normally did on camping trips. He regularly used a tree stand to look for deer and would return to the camp promptly around noon. But this day he didn t return at his usual time. At 12:15 p.m., Simonton s stepson went to look for him and found him dead, hanging from a tree. The stepson ran back to his mother and she immediately called police. Simonton died from asphyxiation after the tree stand s floor gave out and caused his woven nylon safety harness to tear and wrap around his neck, strangling him. The sheriff s department and the Department of Natural Resources responded and determined the following: Simonton properly set up the tree stand 6.5 feet off the ground, which he did a week prior; and he properly fitted himself with the stand s accompanying safety harness that straps around the waist, over the shoulders and under the armpits, with one strap extending across the chest. While Simonton, a 165- pound man, stood harnessed on the tree stand, which was designed to hold a maximum of 350 pounds, the two stainless steel pins - they lock the floor and are about the size of a finger-broke and caused Simonton to fall. The velocity of the fall tore the chest strap and inadvertently strangled him. Given the temperature of Simonton s body, he died sometime soon after he climbed the treestand after 8 a.m., officials determined. Simonton, a novice hunter who learned the sport through his stepson (an avid hunter), had set up the tree stand, which he purchased, on multiple occasions. The tree stand (model number DD ) was manufactured on Jan. 5, 2003, by Ol Man Treestands of Jay, Fla. L&L Enterprises Inc. of Hattiesburg, Miss., wholly owned Ol Man through the time of Simonton s accident, and, thereafter, Ol Man was sold to TSR Inc. of Pace, Fla. Simonton s widow sued the three companies for products liability (design defect, failure to warn) that resulted in his wrongful death. Despite initial communication with an attorney representing L&L Enterprises Inc., the attorney never entered an appearance and a default judgment was entered against the defendant prior to trial, as well as against Ol Man Treestands. A default judgment was entered against TSR at trial for its failure to answer the plaintiffs complaint and enter an appearance. Plaintiffs counsel presented evidence showing that between Jan. 5, 2004, and Sept. 21, 2005, the Consumer Products Safety Commission issued multiple letters urging L&L and Ol Man to recall the subject tree stand for its faulty pins, which were prone to disengage and cause the floor to drop, and a serrated blade that was designed to support the stand, which bent and caused the stand to fall from the tree. The CPSC was explicit in its recall instructions, ordering L&L and Ol Man Tree stand to please destroy and discard this product and never use anymore ; however, the defendants never issued a recall, evidenced by the fact neither Simonton nor any of the tree stand retailers (including Wal-Mart) ever received notice. Injuries/Damages asphyxia; death; emotional distress; loss of consortium; loss of society Simonton s widow, Carol Simonton, sought $6, for funeral expenses and approximately $2.1 million for future lost earnings on behalf of her husband s estate. The widow, who had known the decedent for a couple years until they married a year prior to his death, testified that she undergoes counseling for emotional trauma, which includes nightmares and the 4 image of her husband hanging from a tree, an image that she sees when she wakes up in the morning and before she falls asleep at night. She asked the jury for $100 million for loss of love and affection. Simonton s stepson, who became very close with the decedent prior to his death, testified about the psychological trauma that he continues to experience and the counseling that he treats on an ongoing basis. Plaintiffs counsel presented 30 family photos of the Simontons at Christmas, on camping trips and of the couple s wedding, in which the couple had a mock shotgun wedding wherein the couple dressed in overalls and the son held an empty shotgun. The family, who lived in Tippecanoe County, planned to build a house and move on the property they owned in Clay County. Result The court awarded the estate $157 million. Post-Trial Plaintiffs counsel, pursuant to the Full Faith and Credit Clause under the U.S. Constitution, is attempting to collect on the verdict by pursuing its claims against the defendants in Florida and Mississippi. Elderly couple beaten, fatally stabbed in home robbery Case Type: Survivorship Action Case: Hazard v. Wakefield, Atlantic Co., N.J., Super. Ct., ATL-L , 10/1/2009 Plaintiffs Attorney: Benjamin Folkman, Folkman Law Offices, P.C., Cherry Hill, N.J. Defense Attorney: Not represented Jury verdict: $100,250,000 Facts & Allegations On Jan. 18, 2001, plaintiffs decedents Shirley Hazard, 64, and Richard Hazard, 70, husband and wife, were murdered in their Pleasantville home during a robbery by Brian P. Wakefield, who was arrested at an Atlantic City casino the next day. Wakefield beat and stabbed the victims multiple times. Wakefield was convicted for the murders and was sentenced to death. The death penalty was commuted when New Jersey repealed its death penalty statute. Wakefield is serving two consecutive life sentences without the possibility of parole. The Hazards children sued Wakefield, on behalf of their parents estates and in their indi-
5 vidual capacities, for wrongful death. The complaint, filed in 2003, was stayed pending the criminal prosecution. Prior to the civil case eventually moving to trial, the family achieved a summary judgment order on liability and the case proceeded to the jury on damages only. The plaintiffs voluntarily dismissed their claim for wrongful death and asserted only their claims under the survival statute for their parents conscious pain and suffering, impairment, disability and loss of enjoyment of life. Injuries/Damages death Wakefield stabbed Richard Hazard to death, beat the family dog and killed Shirley Hazard when she came home. The jury heard testimony and saw photographs describing the manner of the decedents deaths, which investigating police and the county medical examiner were able to establish was protracted and culminated in beatings and multiple stabbing wounds. Immediately following the murders, Wakefield doused the bodies in gasoline and burned the bodies and their home. The decedents were survived by five adult children. The defendant, who was pro se, was offered the opportunity to participate in the plenary phase of the trial via teleconferencing from the prison. He declined that offer and did not participate. Result The jury awarded $100 million in compensatory damages and $250,000 in punitive damages. Worker dared to dive into shallow river rendered quadriplegic Case Type: Accidents Recreation Workers Compensation Workers Comp Non-Subscriber Employment Case: Hoffman v. C&D Dock Works Inc., Brevard Co., Fla., Cir. Ct., CA , 1/21/2009 Plaintiffs Attorney: Donald Van Dingenen, Donald Van Dingenen P.A., Winter Park, Fla. Defense Attorney: Not represented Jury verdict: $76,647,545 Facts & Allegations On Jan. 16, 2003, plaintiff Timothy Hoffman, a 20-year-old construction worker, was paralyzed when he dove head first into shallow water in the Indian River. Hoffman was doing temporary work for general contractor C&D Dock Works through an employment agency at the time of the accident. He sought workers compensation through the employment agency, but it was uninsured. Hoffman was waiting for a seawall to harden at the time of the accident. According to Hoffman, his boss and co-workers dared him to jump into the frigid water for money. He dove from a height of 10 feet into the river that was about 1 foot deep, landing on the top of his head. Hoffman sued C&D Dock Works Inc., Sunrise Village Condominium Associates Inc. and Sentry Management Inc. for negligence. Sunrise Village Condominium Associates and Sentry Management were dismissed. Judge Bruce W. Jacobus directed a verdict on liability in Hoffman s favor. The case went before a jury to determine damages only. C&D Dock Works filed for bankruptcy in May Its former owner, Charles Brunty, was not represented by an attorney at trial. Brunty denied liability. Brunty claimed that a rail at the edge of the water indicated danger and that Hoffman was liable for his own injuries. Injuries/Damages paralysis; quadriplegia Hoffman was taken to a hospital, where he was diagnosed with quadriplegia caused by a cervical fracture between the fifth and sixth vertebrae. Hoffman is unable to move his arms or legs but has limited movement in his shoulders. Hoffman s mother quit her job to take care of him. He requires help eating and getting dressed, and he cannot use the bathroom normally. Hoffman s family has no health insurance, and he owes approximately $1.5 million in past medical expenses. Result The jury rendered a verdict in favor of Hoffman, awarding damages in the amount of $76,647, Teen sustained significant brain damage in truck crash Case Type: Intersection Motor Vehicle Left Turn Motor Vehicle Tractor-Trailer Case: Lymon v. Bohn, Polk Co., Fla., Cir. Ct., CA-7728, 3/19/2009 Plaintiffs Attorney: James R. Freeman, Wilkes McHugh P.A., Tampa, Fla. Defense Attorney: Allen K. von Spiegelfeld, Banker Lopez Gassler P.A., Tampa, Fla. Jury verdict: $65,000,000 Facts & Allegations On Aug. 21, 2007, plaintiff Kendra Lymon, a 19-year-old student 5 at South Florida Community College and an aide at the Florida Institute of Neurological Rehabilitation, was driving north on U.S. 17, in Zolfo Springs, heading toward the intersection of State Road 64. A Bynum Transport tractor-trailer driven by part-time trucker Robert Bohn was heading south on U.S. 17. As Bohn approached the intersection, he was in the southbound left-turn lane to turn onto State Road 64. Another tractor-trailer was stopped in the northbound left-turn lane. As Bohn made his left turn, he T-boned Lymon s oncoming sedan. He was traveling about 15 to17 mph, and Lymon s car was crushed from the impact. Lymon sustained multiple orthopedic injuries and brain damage. Lymon s mother, Vanessa Lymon, on her daughter s behalf, sued Bohn and Bynum Transport for negligent operation of a motor vehicle. Plaintiffs counsel argued that Bohn did not have 10 hours of off-duty time before driving the Bynum truck that day (his full-time job is battalion chief for the Polk County Fire Services). The Federal Motor Carrier Safety Rules require such a break. Bohn had left a 24-hour shift at the fire station just prior to picking up the tractor-trailer, which was loaded with juice and weighed about 15 tons. Plaintiff s counsel also maintained that Bohn s view of the intersection was obstructed by the tractor-trailer in the opposite turn lane. Eyewitness Ralph King was unwavering in his support of Lymon s claims. King testified that he was directly behind Lymon and that she had a green light. King initially left the scene of the accident because he observed a crowd of people at the scene and assumed that other people gave statements to police officers. The day after the accident, King overheard his manager telling someone about it. Coincidentally, King and Vanessa Lymon plaint both worked for Ace Hardware, but in different stores. King told his manager that he had witnessed the accident and later ran into Vanessa and told her he was sorry to hear about her daughter. Vanessa eventually learned that King had witnessed the accident and asked him if he would give a statement. Lymon s accident reconstruction expert testified that Bohn s truck intruded into Lymon s lane while traveling at a speed of 10 to 15 mph. Lymon was allegedly going approximately 40
6 mph in a 45-mph zone. The expert said Lymon could not have taken any effective measures to avoid the accident. Lymon s trucking industry expert testified that if Bohn could not see clearly, he should not have made the turn. Bynum Transport had no system in place to monitor Bohn s hours of rest. The company kept a log book to record the drivers trucking hours, but it did not verify whether drivers performed other kinds of work on their days off. Testimony given at trial indicated that the company was aware that Bohn had a full-time job, and company officials relied on him to say whether he was rested. Bohn and his employer vigorously defended the case on liability. Bohn stated in a deposition that he proceeded into the intersection because he had a controlled green left signal. He claimed that Lymon was speeding, traveling 52 to 53 mph, at the time of the collision. Defense counsel attacked the credibility of King, claiming he should have stayed at the scene or called the police after the accident. The defendants contended that fatigue was not a factor in the accident because Bohn had not been called to any fires during his shift at the fire station and he was able to get the required 10 hours of rest. Injuries/Damages brain damage; cognitive deficit; coma; comminuted fracture; depression; dysarthria; fracture, femur; fracture, scapula; hemiparesis; incontinence; respiratory arrest; seizure Lymon had no pulse when emergency personnel arrived, and she had to be revived with a defibrillator. She suffered anoxic encephalopathy as a result of not getting sufficient oxygen to her brain. Lymon was taken to Florida Hospital Wauchula, where she stayed less than four hours and was airlifted to Tampa General Hospital. Lymon was in a coma and on a ventilator for approximately three weeks, and she remained in the hospital until Oct. 3. While in Tampa General Hospital, she suffered a seizure. Lymon was put on anti-seizure medication. Lymon s treating neurologist eventually tapered her off the medication. Counsel claimed that the medication does not preclude the occurrence of future seizures. According to Lymon s neurologist, people in her condition have an increased risk of developing a seizure disorder again as they age. Lymon spent one month in a specialized rehabilitation facility upon her release from the hospital. Lymon s neurologist testified that Lymon had suffered a severe and permanent injury to her brain as a result of her heart stopping. She suffers from hemiparesis, with weakness on the left side of her body causing gait and balancing problems. Her neurologist testified that Lymon would likely suffer from falls throughout her life. Lymon also suffered damage to her cranial nerves, which control facial functions. She has difficulty swallowing, which can cause her to aspirate, meaning that food goes into the lungs. Lymon is also at a heightened susceptibility to pneumonia. Her neurologist testified that Lymon was diagnosed with clinical depression and had taken anti-depressants for a while, but the medications had too many side effects. Lymon continues to require 24-hour care and supervision. She undergoes physical therapy and occupational therapy, but during a normal day, family members must help Lymon bathe, dress, eat, go to the bathroom and do other routine tasks. Lymon s counsel presented a day in the life video for jurors to see the difficulty the plaintiff has performing simple tasks such as eating or combing her own hair. Lymon uses a walker, but has trouble walking more than 100 feet, and she sometimes requires a wheelchair. Lymon suffers from headaches, dizziness, depression, fatigue, constipation, joint pain and has limited range of motion. She has severe cognitive deficits. She suffers from aphasia and has amnesia. The plaintiff s neurology expert testified that Lymon s IQ is now approximately 61. Lymon s physical therapy expert testified that she had suffered severe brain damage and that she would be unlikely to show significant improvement. She testified that without therapy, however, Lymon s condition would likely worsen. Lymon s vocational rehabilitation expert outlined the plaintiff s life care plan. Lymon s doctors testified that her life expectancy would be normal. Lymon s friend, Jessica Tyson, gave a description on the witness stand of what Lymon had been like prior to the accident. Lymon had been an avid reader and could speak six languages. Tyson described Lymon as being very active, both physically and socially. Lymon had lots of 6 friends, loved to work out and lived a healthy, vegetarian lifestyle. According to plaintiff s counsel, Lymon sometimes remembers what her life was like before the crash. At the time of the accident, Lymon was attending South Florida Community College and was majoring in psychology. She had graduated a year early from high school and was the first person in her family to attend college. She was working at night as an aide at the Florida Institute of Neurological Rehabilitation, helping children with brain injuries. The defendants conceded that Lymon had sustained a permanent brain injury. However, their economics experts estimated that her damages would amount to half of what Lymon s team had suggested. Result The jury rendered a plaintiff s verdict, awarding damages in the amount of $65 million. Post-Trial The defense filed a notice of appeal. Tree collapses on vehicle, paralyzing driver Case Type: Dangerous Condition Premises Liability Negligent Repair and/or Maintenance Premises Liability Tree Premises Liability Notice Case: Mendez v. City of Philadelphia, Philadelphia Co., Pa., Ct. C.P., , 2/26/2009 Plaintiffs Attorney: Fred M. Feder, Feder Law LLC, Villanova, Pa. Defense Attorney: J. Brian Durkin, City of Philadelphia Law Department, Philadelphia Jury verdict: $61,000,000 Facts & Allegations On July 28, 2006, on a rainy and windy afternoon, plaintiff Natalia Mendez, 23, a chef/administrator, was driving a sedan in the southbound left lane of Cheltenham Avenue in Philadelphia, when a curbside street tree (adjacent to the right lane) uprooted and fell directly on top of Mendez s vehicle, which rendered her a paraplegic. The tree, a very large Norway maple, affronted the property of Cornelius Burgess Jr., who had hired Jesse Williams of Jesse Williams and Sons Cement Work, Abington, to replace the property s sidewalk in August 2005; the sidewalk presented a hazard to passing pedestrians as it was raised and uneven because of the root structure of the tree. His renovations included cutting the roots of the tree and re-cementing the sidewalk.
7 Mendez sued Burgess and Williams, as well as the Fairmount Park Commission and the city of Philadelphia, alleging negligence. Burgess, who died in March 2008, had settled with the plaintiff in exchange of a joint tortfeasor release of the policy limits of $100,000. In August 2007, default judgments were entered against Williams and his business after the parties failed to appear. The case proceeded to trial against the city and park commission. (In lieu of live expert testimony, the respective parties relied upon submitted reports.) In a recorded statement to his insurance carrier prior to his death, Burgess claimed that he reported to various elected city officials and the park commission that there were problems with the tree, but to no avail. Nearly 11 months after the sidewalk repair and six days before the accident, Burgess claimed that he became alarmed when he noticed the tree noticeably leaning and an opening crack between the new sidewalk and the tree trunk. This prompted him to renew his efforts to contact the city and park commission, leaving a message for the park commission on July 22. Then on July 25, he contacted a city councilman about the dangerous tree and was told that he called the wrong councilman s office, but that the matter would be referred to the correct councilman. But nothing came of this as well. During his deposition, Christopher Palmer, director of operations of landscape management for the commission, said that there were only four or five arborists employed by the city to inspect over 135,000 trees in the system, and that regular tree inspections were not required. Palmer further testified in his deposition that the subject Norway maple tree was healthy at the time of failure and that his department had no records of any calls with complaints or concerns about the tree. The plaintiff relied upon the testimony of an arborist who testified that the loss of roots substantially weakened the tree s anchoring root systems and its ability to survive the storm, which acted on this preexisting manmade weakness. The wind speeds that existed that day were not so extreme as to cause other nearby trees of similar size and kind to uproot, the expert said. The arborist also said it was reasonable to expect that the city should have periodically inspected every tree growing along its streets, even though the cement contractor did not obtain a permit for his work that would have alerted the city of the repair. If such an annual inspection had been performed, the tree inspector could have easily noticed the white color of the newly repaired sidewalk adjacent to the tree and it would have been obvious that stabilizing roots had been cut and removed to repair the sidewalk, causing a dangerous condition. Known as sidewalk buckling, the large tree species such as a Norway maple was crammed in a 2-foot wide area between the sidewalk and street curb where it had insufficient space to grow, thus causing the uprooted sidewalk. The expert further testified that the defendants should have expected that the tree would eventually cause sidewalk buckling when its roots and trunk flare expanded with growth each year, especially when such growth required prompt repairs by the adjacent property owner. The defendants denied the allegations, asserting that the city had no notice of said tree. The defense meteorologist opined that the weather conditions were a contributing factor to the tree falling, noting a severe thunderstorm accompanied by strong downburst/ straight-line winds occurred during the late evening hours of July 27 and the first hours of July 28. The defense expert contended that in addition to the felled Norway maple, the same winds brought down trees and power lines throughout the area, including a tree that was toppled onto a house in the Rhawnhurst section of the city. The defense arborist said that it would be speculation to conclude that the tree fell because too many roots were cut when this tree had a trunk diameter of 27 inches, a large canopy and was growing in a 24-inch tree space. Further, the defense arborist claimed a drive-by inspection from the city would have been too superficial and would actually have indicated the tree to be in good health. For example, said the expert, an inspector wouldn t have discovered that the tree s roots were girded by a storm drain in the same area, another obstacle to growth. Injuries/Damages depression; fracture, C6; fracture, C7; quadriplegia Mendez was trapped inside her car for over 7 an hour before she was extricated by rescuers and taken to Albert Einstein Medical Center, where she was treated for a C6/C7 burst fracture, a C6 ASIA B spinal cord injury, paraplegia and a superior endplate fracture of C7 vertebra. She underwent an anterior interbody arthrodesis at C5-C7 with a Senn cage and an allograft; an application of anterior plate at C5 to C7; a posterior spinal fusion of C5 to C7 with instrumentation; a posterolateral fusion from C5 to C7 with allograft; a closed reduction C6-C7 vertebral bodies and a halo placement; a C5-C6 discectomy; a C6-C7 discectomy; a C6 corpectomy; bilateral foraminotomies at C5-C6, C6-C7; a repair of dural laceration with Duragen and Tisseel; and, inferior vena cava filter placement. On Aug. 21, Mendez was discharged and transferred to Moss Rehabilitation Hospital, where she remained until Dec. 23. Thereafter, she was admitted to the Beth Abraham Hospital in Bronx, N.Y., and was discharged in July Mendez, who relocated from her home in New York to take a position as a chef/administrator for a Thai restaurant in Manayunk, was earning $39,000 per year at the time of her accident. Expected to earn a yearly income between $55,400 and $58,490 in her 43-year career, she sought $2,863,195 to $4,958,419 in future lost earnings, depending upon the appropriate allowances for productivity. Living on her own with 24-hour care, Mendez requires assistance with every aspect of her life, including eating, bathing and dressing. Despite bouts of depression, the plaintiff remains upbeat as she goes out to eat with her friends once a month. She aspires to write a culinary book and possibly have her own cooking show. She s also involved in a quadriplegic support group. She sought an unspecified amount for past and future pain and suffering. Result Prior to jury deliberation, the plaintiff and defendants entered into a confidential settlement and agreed that the jury would determine only what Mendez s damages were. Jurors were not aware of any settlements or default judgments. The jury awarded Mendez $61 million. Post-Trial The court awarded delay damages of $2.44 million for a total verdict of $63.44 million.
8 Passenger sustained spastic quadriplegia following accident Case Type: Multiple Vehicle Motor Vehicle Passenger Motor Vehicle Truck Motor Vehicle Broadside Premises Liability Dangerous Condition of Public Property Motor Vehicle Center Line Case: Bianchi v. Demma, Santa Clara Co., Calif., Super. Ct., 108-CV , 9/21/2009 Plaintiffs Attorney: Thomas W. Malone, Malone Law Office, Atlanta; Randall H. Scarlett, Scarlett Law Group, San Francisco Defense Attorney: Guy D. Calladine, Carlson, Calladine & Peterson LLP, San Francisco (Gordon Trucking Inc. and Michael A. Demma); John Simonson, Hayes Scott Bonino Ellingson & McLay, LLP, Redwood City, Calif. (Samuel O. Bimbela) Jury verdict: $49,123,376 Facts & Allegations On May 3, 2007, plaintiff Drew Dakota Bianchi, 21, a student, was a passenger in a sedan that was heading westbound on State Route 152 in Pacheco Pass, near Gilroy. He was sitting in the rear passenger seat on the driver side. Michael Anthony Demma was driving a tractor trailer two vehicles in front of the Bianchi vehicle on westbound Rte. 152, while Samuel Ortego Bimbela was driving a flatbed truck on eastbound Rte The two trucks collided at or near the center line, which caused Bimbela to lose control of his vehicle and broadside the driver side of the Bianchi vehicle. Bianchi filed a complaint for motor vehicle negligence against Bimbela and his employers: Salazar Equipment Co.; Salazar Construction Co.; and Technicon Construction Co. The plaintiff also filed suit against Demma and his employer, Gordon Trucking. In addition, he sued the State of California, alleging dangerous condition of public property. Against the state, Bianchi alleged that there should have been rumble strips, a Jersey barrier, a K rail or center dividers to prevent head-on collisions. The plaintiff also contended that the shoulders were too narrow, dirt and too difficult to navigate. (After the accident and unrelated to it, the state installed a truck climbing lane in the area.) Prior to trial, the state settled for $10 million and Salazar Equipment, Salazar Construction and Technicon Construction settled for $2 million. Bianchi argued that Demma and Bimbela were inattentive at the time of the accident. He contended that Bimbela was sleep-deprived, while Demma was using a cell phone. Demma and Gordon Trucking contended that Bimbela and the state were solely responsible for the accident. Bimbela contended that Demma, Gordon Trucking and the state were solely responsible for the accident. Injuries/Damages closed head injury; coma; contusion; diffuse axonal brain injury; fracture, skull; lung contusions; pneumonia; spastic quadriparesis Bianchi sustained a severe closed-head injury (diffuse bifrontal axonal injury and brain stem contusion), spastic quadriparesis, multiple head fractures, severe pulmonary contusions and bleeding into the lungs. He was airlifted to a hospital, where he was comatose and required emergent reintubation, bilateral thoracostomy tubes, left femoral IC access and diagnostic peritoneal lavage. He was then transferred to a rehabilitation hospital in a vegetative state. He was in a coma for more than one month. Bianchi underwent shunt revision and placement of a low-pressure valve, and had problems with recurrent pneumonia. He became unable to communicate, and was fed through a gastronomy tube. He showed slow-but-steady improvement at trial. Bianchi claimed that he would require roundthe-clock care with a licensed vocational nurse for the rest of his life. He sought future medical expenses to maintain ongoing treatment at a residential care facility for the rest of his life. Bianchi is unable to work. He was a very good student who was preparing to enter a college pre-med program. He claimed that he would have obtained a bachelor s degree and a higher academic award, such as a law or medical degree. The parties stipulated that Bianchi s past medical expenses were $3,449, He sought $27,637,075 for future medical expenses, between $2 million and $14 million for loss of earning capacity, and damages for pain and suffering. The defense argued that Bianchi had a shortened life expectancy and contested his claimed future medical expenses. Result The jury awarded Bianchi $49,123,375.87, apportioning fault as follows: Demma, 35 percent; Bimbela, 60 percent; and the state, 5 percent. The defendants are entitled to credits for the 8 $12 million recovered via settlements with a certain percent being applied toward the general damages. The remainder will be applied toward the special damages. Motorcyclist paralyzed in high-speed rear-ender Case Type: Motorcycle Motor Vehicle Rear-ender Negligence Case: Aloia v. Estate of Veilleux, Lee Co., Fla., Cir. Ct., 07-CA , 12/4/2009 Plaintiffs Attorney: John F. Romano, Romano Law Group, Lake Worth, Fla.; Preston J. Scheiner, Associates & Bruce L. Scheiner, Personal Injury Lawyers, P.A., Fort Myers, Fla. Defense Attorney: Kenneth M. Oliver, Kubicki Draper, Fort Myers, Fla. Jury verdict: $44,932,206 Facts & Allegations On Oct. 21, 2006, plaintiff Gerald Aloia, a 58-year-old marine mechanic, was riding his motorcycle on Everest Parkway, just east of SE 20th Place in Cape Coral, when he was rear-ended by Deborah Veilleux, who was driving her Corvette at a high rate of speed. Aloia was ejected from his motorcycle and rolled over the Corvette before landing on the ground. Aloia was rendered a paraplegic and sustained multiple injuries as a result of the accident. Veilleux died in Aloia sued Veilleux s estate for her negligence. Liability was admitted. Injuries/Damages back; bursitis; contusion; deep vein thrombosis; depression; elbow; foot; fracture, T12; fracture, rib; fracture, transverse processes; kidney; leg; nerve impingement; paraplegia; pressure sores; road rash; sexual dysfunction; shoulder; spasms; urinary tract infection Aloia sustained a T12 vertebrae Chance fracture that caused paraplegia; a bilateral L1 transverse process fracture; a T11 posterior spinuous process fracture; multiple deep vein thromboses requiring surgical implantation of a vena cava filter; multiple pressure sores extending down to the muscle and tendon; adjustment disorder with depression, anxiety, post-traumatic panic and social avoidance; multiple urinary tract infections; chronic back pain; spasm and pain in his legs and feet; left shoulder rotator cuff tendonitis/impingement (secondary to overuse from paraplegia); bowel program (use of laxatives and digital stimulation to remove hard stool); anemia; left elbow bursitis; road rash; a contusion to his left kidney fascia; blood
9 in his chest cavity; a rib fracture and loss of sexual function. Aloia underwent a bilateral T10, T11, T12, L1 and L2 posterolateral onlay fusion-autograft and bilateral T10, T11, T12, L1 and L2 pedicle screw fixation, as well as numerous debridements of necrotic tissue from pressure sores. Because of an inability to urinate, Aloia must catheterize himself every one to three hours. Aloia s past medical expenses exceeded $311,700. The plaintiff s physical medicine and physical rehabilitation experts opined that he would no longer be able to maintain gainful employment. Aloia sought damages for a replacement attendant to provide care for his disabled adult daughter, who was previously injured in an accident, and for whom Aloia had provided care before his accident. Result The jury rendered a plaintiff s verdict, awarding damages in the amount of $44,932,206. Post-Trial The plaintiff s motion for taxing costs is still pending. Defense counsel filed a motion to alter or amend the final judgment, a motion for a new trial, a motion to conduct juror interviews and a motion for collateral source set-off. Brothers in SUV crash named each other as drivers Case Type: Single Vehicle Motor Vehicle Rollover Case: Smolinski v. Smolinski, Erie Co., N.Y., Sup. Ct., 5874/01, 3/20/2009 Plaintiffs Attorney: Anne Beltz Rimmler, Paul William Beltz, P.C., Buffalo, N.Y. Defense Attorney: Paul Morrison-Taylor, Phillips Lytle LLP, Buffalo, N.Y. (Ford Motor Credit Co.) Jury verdict: $40,026,376 Facts & Allegations At about 7 p.m. on Nov. 20, 1999, plaintiff Thomas Smolinski, 24, a rental-car provider s management trainee, occupied a sport utility vehicle that was traveling on Bailey Hill Road, in Leon. Smolinski s brother, Matthew Smolinski, also occupied the vehicle. The vehicle s driver lost control while attempting to negotiate a curve. The vehicle landed in a roadside ditch and rolled. Thomas Smolinski was ejected, and he sustained injuries of his neck. During the immediate aftermath of the accident, Matthew Smolinski told state troopers that his brother was the SUV s driver. Thomas Smolinski sued his brother and the SUV s lessor, Ford Motor Credit Co. Thomas Smolinski alleged that his brother was the SUV s driver, that his brother was negligent in his operation of the vehicle and that Ford Motor Credit was vicariously liable for his brother s actions. Matthew Smolinski s insurer denied coverage, believing that his brother was the vehicle s driver. As such, Matthew Smolinski did not answer the complaint, and a default judgment was entered. His insurer ultimately tendered its policy, and the matter proceeded to a trial against Ford Motor Credit. Thomas Smolinski claimed that his brother was the SUV s driver. Plaintiff s counsel contended that Matthew Smolinski, a police officer, was intoxicated when the accident occurred and that he implicated his brother out of fear of losing his job, mistakenly believing that his brother was dead. Plaintiff s counsel also contended that Matthew Smolinski recanted the apparent lie during conversations with police the ensuing day. Plaintiff s counsel noted that a witness, who saw the Smolinskis minutes prior to the accident, claimed that Matthew Smolinski was the vehicle s driver. Plaintiff s counsel presented the sworn statement of one of the three emergency medical technicians who were present during the immediate aftermath of the accident. The statement included the technician s contention that Matthew Smolinski admitted that his brother was ejected from the SUV s front passenger seat and out of the vehicle s rear window. The technician also contended that Matthew Smolinski admitted that he moved his brother s injured body to an area near the vehicle s driver-side door. The other two emergency medical technicians claimed that Matthew Smolinski hysterically admitted that he was the vehicle s driver and that he feared that he would be fired if his alcohol use was discovered. The emergency medical technicians report noted that Matthew Smolinski was suffering abrasions that suggested that his chest had been scraped by the vehicle s steering wheel. The report also noted that he was suffering lacerations of only one side of his head, the left, which was the direction in which the SUV rolled. The plaintiff s accident-reconstruction expert 9 noted that an insurer s investigator uncovered scuffs of the vehicle s ceiling. The marks began above the front passenger seat and extended to the vehicle s rear window, which shattered during the accident. The expert agreed with the investigator s initial conclusion that Thomas Smolinski had been ejected from the passenger seat and out of the vehicle s rear window. The expert opined that such an incident was consistent with the mechanics of the accident, and he contended that seat-belted passengers have been known to be ejected during rollover accidents. However, during the trial, the insurer s investigator contended that he had changed his opinion and decided that Smolinski had been ejected through the driver-side window. Defense counsel challenged the accuracy of the recollection of the emergency medical technician who provided the sworn statement. He contended that the technician initially indicated that Matthew Smolinski had reported that his brother was ejected via one of the vehicle s side windows. He also contended that the technician s handwritten notes included Thomas Smolinski s apparent admission that he was the vehicle s driver. Defense counsel also challenged the significance of Matthew Smolinski s apparent admission to police that he had been the vehicle s driver. Defense counsel contended that Smolinski did so because he had been advised that the family could not have recovered damages if his brother had been the driver. Defense counsel contended that evidence established that the passenger seat s seat belt was the only one in use at the time of the accident. Given that Matthew Smolinski did not sustain a significant injury, defense counsel argued that he had to be the person who occupied the passenger seat. The defense s accident-reconstruction expert acknowledged that seat-belted passengers have been known to have been ejected during accidents, but he contended that such an event is rare. He noted that Thomas Smolinski s body was found outside of the vehicle s driver-side window, and he contended that Thomas Smolinski s injuries suggested that he had been struck by the vehicle s driver-side air bag. However, the expert acknowledged that he could not locate any scuffs or markings that supported his contention, and he also contended that he was not
10 aware that an emergency medical technician had reported overhearing Matthew Smolinski indicate that he had moved his brother s body. Injuries/Damages corpectomy; decompression surgery; decubitus ulcer; fracture, C6; fracture, C7; fusion, cervical; internal fixation; physical therapy; plate; quadriplegia; subluxation; unconsciousness Thomas Smolinski sustained fractures of his C6 and C7 vertebrae and a subluxation of his spine s C5 and C6 levels. Smolinski was not breathing when emergency medical technicians arrived at the scene of the accident. He was revived, placed in an ambulance and transported to Erie County Medical Center, in Buffalo. He underwent 15 surgeries. The procedures included a corpectomy, which involved the removal of his C6 vertebra; decompression and fusion of a portion of the anterior side of his spine s cervical region; the insertion of a Harms stabilization cage and a fixation plate; the application of a graft; and the application of a myocutaneous flap that addressed a decubitus ulcer or bedsore that formed during his hospitalization, which lasted seven weeks. Doctors initially believed that Smolinski would suffer total quadriplegia, but occupational and physical therapy allowed him to regain some use of his limbs. He is now considered to suffer incomplete quadriplegia. Smolinski contended that his doctors have recommended additional intensive occupational and physical therapy and a full-time residential aide, but that he has not been able to obtain those services. He claimed that the relevant agencies have suggested that he should rely on the assistance of his wife, who is a full-time teacher and the main custodian of the couple s 1-year-old twin daughters. Mr. Smolinski, formerly an accomplished springboard diver who achieved Academic All- America status, twice attempted to coach the sport, but he claimed that his injuries impeded those efforts. He has not procured any other type of work. Smolinski sought recovery of his past and future medical expenses, his past and future lost earnings, and damages for his past and future pain and suffering. Defense counsel contended that Smolinski exaggerated his need for therapy and residential assistance. He claimed that Smolinski can obtain full-time work, possibly as a telemarketer or a diving coach. However, plaintiff s counsel contended that Smolinski possesses virtually no use of his hands, very little use of his arms and no ability to operate a computer. He also contended that Smolinski must utilize his tongue to dial a phone. Result After two mistrials, a third jury found that the defendants were liable for the crash. A fourth jury determined that Smolinski s damages totaled $40,226, That amount is subject to offsets of collateral sources of income, and the award could be reduced to reflect the presentday value of some of its components. Defense counsel reported that numerous court-issued rulings prevented him from providing further evidence that Thomas Smolinski admitted that he was the vehicle s driver. Plaintiff s counsel challenged that contention and suggested that defense counsel s arguments were entirely based on the testimony of people who were not aware of Matthew Smolinski s initial claims that he was the vehicle s driver. Post-Trial Defense counsel moved to set aside the jury s finding of liability, but the motion was denied. He has appealed the denial of that motion. Both sides have filed motions regarding the damages awards, and defense counsel reported that he will file a second appeal that will be based on the contention that Ford Motor Credit did not receive a fair trial. Fire devastated national forest, decimated frog population: case Case Type: Trespass State Statutes Premises Liability Fire Negligence Case: United States v. Merco Construction Engineers Inc., C.D. Calif., 2:08-CV PA-AGR, 9/30/2009 Plaintiffs Attorney: Carla A. Ford and Abraham Meltzer, U.S. Attorney s Office, Los Angeles Defense Attorney: Stacey F. Blank, Wood, Smith, Henning & Berman LLP, Los Angeles; Jeffrey D. Lyddan, Gordon & Rees LLP, San Francisco Jury verdict: $36,437, Facts & Allegations From June 5, 2002, to June 11, 2002, a wildfire destroyed approximately 18,000 acres of the Angeles National Forest in Arcadia. Reportedly, the blaze started after sparks from a CB&I Constructors Inc. employee s grinder landed on grass and brush before spreading. General contractor Merco Construction Engineers Inc. had hired subcontractor CB&I to build steel water reservoirs near a housing development in the area. The U.S. Department of Justice (DOJ) sued Merco and CB&I, alleging trespass by fire and violations of the Cal. Health and Safety Code The DOJ asserted that Merco failed to water the subject area to prevent a fire. Plaintiff s counsel also asserted a failure to position an employee near the worksite, ready to quickly put out any fires. The lawyers also contended that the weather conditions were too extreme 108 degrees with 7 percent humidity and very windy for construction work. CB&I responded that the fire was a freak accident that could not have been anticipated. There were 65 feet between the tanks and the brush that Merco had recently watered down, according to CB&I, and it was inconceivable that a single spark could travel far enough and remain hot enough to set fire to damp brush. Merco contended that its employee was there to control dust, not to water down the ground to prevent fires. Plaintiff s counsel countered that the employee testified that he was aware of fires in the area during the previous week and that he acknowledged that he did an inadequate job of watering down the area. Other employees at the site also testified that they thought the water tanker was there to prevent fires, according to DOJ. Before the verdict, Merco settled out for $2.1 million (policy limits). Injuries/Damages The DOJ demanded roughly $7.9 million for fire suppression costs, Burned Area Emergency Response (BAER) costs, future resource damage and environmental harm. Plaintiff s counsel argued that the fire decimated the California red-legged tree frog population through death and destruction of its habitat. The historic Hazel Dell Mining Camp, a preserved 1920s mining camp, was destroyed in the fire and can no longer be listed on the National Register of Historic Places, plaintiff s counsel alleged. The DOJ also argued that the fire caused irrevocable damage to the area s native grasses and plants, noting that non-native plants and grasses subsequently sprung up and changed the ecosystem.
11 The defense contended that the government only accrued $2.3 million in economic damages and that the red-legged frog population was not harmed by the fire. A storm in caused mudslides that filled in frog breeding pools, but there was no evidence that live frogs were harmed by the fire, according to CB&I. The historic aspects of the mining camp were not damaged by the fire, according to CB&I, although a mid-century cabin, unrelated to the mines, was burned. CB&I purported that the site is still eligible for historic status, asserting that the forest service made no effort to register the site before or after the fire. Result The jury determined that Merco was 35-percent liable and that CB&I was 65-percent at fault and awarded $36,437, to the DOJ. The jury found that CB&I negligently caused and set the fire, while Merco allowed it to start. Assuming the judgment is upheld in post-trial motions and on appeal, CB&I is liable to pay 65 percent of the intangible environmental damages (IEDs), or $18,720,000. There is joint and several liability for the remainder of the judgment, which is comprised of suppression costs, Burned Area Emergency Rehabilitation costs and resource damages. The judgment itemizes these amounts. Post-Trial CB&I Constructors have filed a motion for judgment as a matter of law and a motion for a new trial or remittitur. Drunk teen crashed into pole, passenger friend paralyzed Case Type: Passenger Motor Vehicle Alcohol Involvement Motor Vehicle Head-On Case: Baldwin v. Klairmont, Lake Co., Ill., Cir. Ct., 07L105, 3/4/2009 Plaintiffs Attorney: Patrick A. Salvi and Patrick A. Salvi II, Salvi Schostok & Pritchard P.C., Chicago Defense Attorney: KJon Yambert, Chilton Yambert Porter & Young, Chicago (William Klairmont) Jury verdict: $33,210,919 Facts & Allegations On Nov. 19, 2006, plaintiff, George Baldwin IV, 19, a student, was a passenger in a sedan that William Klairmont was driving north on Route 43, just south of Route 176, in Lake Bluff, when Klairmont lost control, causing the car to leave the roadway. Klairmont s sedan struck a utility pole, head-on. While Klairmont was taken to the emergency room in an ambulance, Baldwin had to be airlifted to the hospital. He was paralyzed. A blood test performed at the hospital about 90 minutes after the collision demonstrated that Klairmont had a blood-alcohol level of Klairmont was arrested and convicted for aggravated driving under the influence of alcohol, and he served nine months in jail. Baldwin sued Klairmont for vehicular negligence. Baldwin also sued William Klairmont s father, Robert Klairmont and one of his businesses, Imperial Enterprises, alleging negligent entrustment. Baldwin also filed a negligent supervision claim against Lauralee Pfeifer, the woman who owned the house where Klairmont drank alcohol prior to the collision. Robert Klairmont and Imperial Enterprises were dismissed after they paid Baldwin $250,000. Regarding the allegations of negligence against Pfeifer, plaintiff s counsel contended that Klairmont and Baldwin had been drinking at Pfeifer s house, with Pfeifer s knowledge, before they left in Klairmont s car. Counsel asserted that the plaintiff and defendant had visited the Pfeifer home to drink with Pfeifer s two daughters in one of the upstairs bedrooms. Counsel claimed that Pfeifer had definitive knowledge that the underage group was drinking because Pfeifer got into a heated argument with her husband about the incident when her spouse arrived at the house. Plaintiff s counsel presented evidence that Pfeifer s husband was so upset that Pfeifer allowed the drinking to take place that he kicked out Klairmont and Baldwin and then argued with his wife to the point that Pfeifer threw an empty beer bottle at her husband, causing such an extensive laceration on his head that he had to go to the emergency room. Plaintiff s counsel asserted that while Baldwin had no cause of action to claim against Pfeifer for social host liability under state law, the fact that Pfeifer allowed her daughters to drink alcohol, and ostensibly encouraged Klairmont to drink as well, made Pfeifer liable for negligent supervision. Pfeifer s counsel argued that she couldn t be held liable because she didn t give the alcohol to Klairmont. Plaintiff s counsel countered that her daughters had been caught drinking on numerous prior occasions, making Pfeifer utterly 11 indifferent to the possibility that her daughters were drinking, as she failed to check in on the girls, Pfeifer s insurance carrier agreed to settle Baldwin s action against Pfeifer for her $2.5 million homeowner s insurance policy limits. The matter went to trial with Klairmont as the lone defendant. At trial, Klairmont s counsel conceded liability but contested Baldwin s extensive damages. Injuries/Damages fracture, C1; fracture, C4; fracture, C7; fracture, T1; paraplegia Baldwin was diagnosed with fractures in his vertebrae at C1, C4 and C7 along with a burst fracture at T4. He also suffered a head injury that destroyed his pituitary gland. As a result of the brain injury and multiple fractures along his spinal cord, Baldwin was rendered permanently paralyzed from his chest down. Since the pituitary gland controls certain hormones, Baldwin was left with permanent body temperature, blood pressure and urinary function difficulties. Plaintiff s counsel also contended that Baldwin had no sexual function and had to take about 20 pills per day including muscle relaxers to prevent spasms, pain medication and testosterone. For Baldwin s past medical expenses, the parties stipulated to $1,210,919. Plaintiff s counsel sought between $12 million and $14 million for future medical and life care needs asserting that Baldwin would live an additional 55.3 years and require 24-hour access to nursing care for the remainder of his life as he was unable remove suppositories, clean up after himself, get dressed and perform other basic daily life tasks without assistance. Plaintiff s counsel also sought between $2.5 million and $3.5 million in future lost income on the grounds that Baldwin would not be able to work for the rest of his life. While counsel conceded that Baldwin had enough cognitive function to perform certain jobs, counsel asserted that the physical limitations presented by his paralysis and pituitary deficiencies made the prospect of Baldwin working in any productive capacity unfeasible. Plaintiff s counsel also asked the jury for $30 million for Baldwin s pain and suffering, disfigurement and loss of a normal life. Counsel explained that Baldwin s neck fractures required the insertion of an elaborate orthopedic device which stabilizes his spine on either side and, since Baldwin is not fully paralyzed, counsel
12 noted that Baldwin can feel the stabilizing device which will remain in his body for the rest of his life. Further, counsel detailed the phantom pains which consistently accompany paralysis. Counsel also pointed out that Baldwin suffers humiliation from being in a wheelchair and he will continue to sustain pressure ulcers which can take up to a year to heal. Regarding the future medical bills presented into damages by plaintiff s counsel, the defense contended that Baldwin might not live for an additional 55.3 years due to urinary tract issues he may encounter and, since he also didn t need 24-hour care, $5 million in future medical damages was a more appropriate award. Defense counsel argued that Baldwin was entitled to a total recovery of $17 million to $22 million. Result The jury awarded Baldwin $33,210,919. With a setoff of $2.5 million from the settlement between Baldwin and Pfeifer s insurance carrier and an additional $250,000 setoff from Baldwin s settlement with Robert Klairmont and Imperial Enterprises, the net judgment against Klairmont was $30,460,919. Woman s leg destroyed when struck by bus Case Type: Pedestrian Motor Vehicle Right Turn Motor Vehicle Bus Government Municipalities Case: Aguilar v. New York City Transit Authority, New York Co., N.Y., Sup. Ct., /06, 4/16/2009 Plaintiffs Attorney: Ben B. Rubinowitz, Gair, Gair, Conason, Steigman & Mackauf, New York Defense Attorney: John Y. Woodruff Jr., Wallace D. Gossett, Brooklyn, N.Y. Jury verdict: $27,500,000 Facts & Allegations On Nov. 4, 2005, plaintiff Gloria Aguilar, 45, a homemaker and part-time housecleaner, was struck by a public bus. The incident occurred on West 50th Street, alongside its intersection at 10th Avenue, in Manhattan. Aguilar sustained injuries of her arms, head, legs and torso. Aguilar sued the bus s driver, Andrew Monaco, and the bus s operator, the New York City Transit Authority. Aguilar alleged that Monaco was negligent in his operation of the bus. She further alleged that the New York City Transit Authority was vicariously liable for Monaco s actions. Aguilar claimed that a green pedestrian-traffic signal permitted her entrance to the intersection. She contended that she checked both directions of traffic, entered a crosswalk, walked 10 to 15 feet and was struck by the bus, which was completing a right turn onto West 50th Street. However, she acknowledged that she did not see the bus until it was immediately upon her. The New York City Transit Authority investigated the matter, and it determined that the impact occurred within a crosswalk. Monaco contended that the impact occurred while he was maintaining a speed of about 5 mph. He claimed that he utilized intersection-scanning procedures that he had been taught during the New York City Transit Authority s training, but that he did not see any pedestrians in or near the crosswalk. The defense s expert engineer opined that Aguilar should have seen the bus before she entered the roadway. He also opined that Aguilar entered the roadway before Monaco had begun his turn. He contended that Aguilar initiated the contact, and he also contended that the impact occurred slightly outside of the crosswalk. Defense counsel contended that the incident occurred shortly after Aguilar had completed an eight-hour workday and that she was tired and hurrying home at the time of the incident. He suggested that the incident was a result of Aguilar s inattentiveness. Injuries/Damages abrasions; amputation, above-the-knee; arm; crush injury, leg; depression; head; infection; nerve damage; physical therapy; post-traumatic stress disorder; prosthesis; psychological; road rash Aguilar s left leg was crushed by the bus s front right tire. She also sustained an injury of her right leg and abrasions and road rash of her head, limbs and torso. She was placed in an ambulance, and she was transported to Bellevue Hospital Center, in Manhattan. Her left leg could not be saved, so it was amputated below the knee. Aguilar subsequently developed an infection of the remaining portion of her left leg. As a result, she had to undergo surgeries that included further amputation of the leg. She ultimately lost her left knee and about four additional inches of the area above the knee. She wears a prosthetic device. Her hospitalization lasted two months, and she subsequently underwent orthopedic treatment. Aguilar claimed that she suffers residual damage of her legs nerves. She also claimed that she experiences phantom pain that seems to 12 stem from the missing portion of her left leg. She further claimed that she undergoes treatment of residual psychological conditions that include post-traumatic stress disorder and major depression. She contended that her disability prevents her resumption of work. Aguilar s life-care-planning expert opined that Aguilar must undergo lifelong physical therapy. He also opined that Aguilar s prosthesis must be replaced every three to five years. Aguilar sought recovery of about $5.6 million for her future medical expenses. She also sought recovery of damages for her past and future pain and suffering. Her husband sought recovery of damages for his past and future loss of services and society. Result The jury found that the defendants were liable for the accident. It also found that Aguilar was negligent, but it concluded that her negligence was not the cause of the accident. The jury determined that the plaintiffs damages totaled $27.5 million. Post-Trial Defense counsel made motions to set-aside the verdict as excessive and for a new trial, but the motions were denied. Defense counsel indicated that they plan to appeal. Both drivers claimed they had the green light Case Type: Intersection Motor Vehicle Broadside Motor Vehicle Red Light Case: Chraca v. Miles, Cook Co., Ill., Cir. Ct., 04 L 9461, 05 L 7603, 9/8/2009 Plaintiffs Attorney: Martin J. Healy Jr., The Healy Law Firm, Chicago Defense Attorney: Andrew L. Dryjanski, Attorney General s Office, Chicago Jury verdict: $25,093,335 Facts & Allegations On April 19, 2004, plaintiff Andrzej Chraca, 32, a project manager, was driving a sport utility vehicle south on Wright Boulevard in Schaumburg during the course and scope of his employment with United Woodworking, when his passenger side was broadsided by Steve Miles, a state Department of Transportation employee who was driving a utility truck east on South Frontage Road. Both motorists claimed that they had a green light. Chraca fractured a vertebra. Chraca sued Miles for his motor vehicle negligence. Miles also claimed injuries and sued Chraca and his employer for vehicular negligence. The cases were consolidated and
13 tried together. Chraca testified that prior to the accident he was in the right line of Wright Boulevard exiting an underpass that was within 100 feet of the intersection of South Frontage Road. As he exited the underpass Chraca saw that the intersection traffic light was red which prompted him to remove his foot from the gas. He claimed that there were cars stopped in the left lane and a car stopped to make a left turn in the left turning lane on southbound Wright Boulevard (which had a posted speed limit of 30 mph). The plaintiff claimed that as he slowed down the light turned green and he proceeded through the intersection at which time he was struck by Miles. According to the SUV s black box data recorder, which only recorded five seconds prior to the accident, Chraca traveled 32 mph, then 34 mph, then back down to 32 mph, and finally 30 mph, which was the rate of speed he was traveling just prior to the impact. The plaintiff claimed that he saw Miles a split second before the crash and applied his brakes. Past the pillars supporting the underpass is an embankment situated in the corner of the intersection that prevents motorists on both Wright Boulevard and South Frontage Road from initially seeing one another when passing through the intersection. Both Chraca and Miles testified that their respective vision was obstructed when they entered the intersection due to the embankment. Six eyewitnesses were presented; some of the eyewitnesses in the southbound traffic on Wright Boulevard said they either saw the southbound light turn green or saw the southbound traffic move before they heard the crash, but Chraca s SUV was the only southbound vehicle in the intersection at the time of the impact. All of the eyewitnesses testified that they did not see any of the vehicles prior to the impact, and several witnesses testified that, from what they observed, the vehicles were not being driven in the directions claimed by the drivers. This was a result of the impact of the vehicles; Chraca s SUV was pushed to the left, spun and ended up in the eastbound lane of South Frontage Road, while Miles s truck was pushed to the right into the northbound lane of Wright Boulevard and rolled onto its driver s side. Given the accounts of Chraca and the eyewitnesses, Chraca s accident reconstructionist expert testified that Chraca had a green light at the time he entered the intersection. Chraca s respective counsel presented evidence wherein Miles told the investigating police officer and hospital personnel that he did not have any recollection of the accident nor did he recall the color of the traffic light. Counsel for Miles argued that Chraca either timed the red light or accelerated to beat the red light, and that he exceeded the speed limit as he entered the intersection. Miles was estimated to be traveling between 30 and 40 mph, which was below the posted 45-mph speed limit for east South Frontage Road. Miles testified at trial that he recalled that he had a green light when he entered the subject intersection. Miles accident reconstruction expert rebuked Chraca s expert, saying that due to the lack of scientific data and credibility of the eyewitnesses, who incorrectly recounted the direction of travel by the motorists, it was improper for Chraca s accident reconstructionist to formulate an opinion as to the color of the light. Miles relied upon an eyewitness who was stopped on northbound Wright Boulevard who testified that the light was red at the time of the accident, which meant that the traffic light for southbound Wright Boulevard was also red, counsel argued. According to Chraca s counsel, the red light on northbound Wright Boulevard supported Chraca s theory that he had a green light, because when the southbound Wright Boulevard traffic light turned green, a left turning lane arrow was activated, which meant that northbound Wright Boulevard s light had to remain red until the left turning lane light returned to red before motorists, who were stopped northbound on Wright Boulevard, proceeded through the intersection. Injuries/Damages arm; fracture, C4; fracture, vertebra; fractured jaw; hand; nerve damage; nerve impingement; paraplegia; permanent partial paralysis; scar and/or disfigurement Chraca was taken by ambulance to Loyola University Hospital in Maywood, where he was treated for paraplegia as a result of a fractured vertebra. He underwent rehabilitation and reached the point in his medical improvement where he can walk short distances only with the use of braces, walkers or canes. Otherwise, 13 he is mostly confined to a wheelchair. Chraca sought $1,180,558 for past medical expenses and a life-care plan between $4.8 million and $5.9 million. Although disabled, Chraca did not present a lost-wage claim, and he asked the jury for $36 million to $46 million. Miles, 56, was also taken to Loyola University Hospital. He underwent a spinal fusion to address a C4 fracture and spinal cord impingement as well as reconstructive surgery on his jaw, which suffered multiple jaw fractures and had to be wired shut for eight weeks. After about a month of hospitalization, Miles underwent about six months of rehabilitation which focused on the partial paralysis that he experienced in his right arm and hand. He never returned to work and claimed disability. His treating neurosurgeon said that due to his right-sided paralysis, which was permanent in nature, Miles would not be able to return to his job in highway maintenance, which had him fill potholes, remove animal carcasses, set up cones and salt, sand and snowplow the roads. However, he could possibly retain sedentary work but would be placed on permanent restrictions, said the neurosurgeon. Miles sought $313, for past medical bills, $464,857 in past lost wages, and $708,271 for future lost wages. He claimed that he is able to perform some of his pre-accident activities, including driving and walking, but unable to lift even the lightest of objects due to his paralysis. Result The jury found Miles 95 percent negligent and Chraca 5 percent negligent; no negligence was found against United Woodworking. Chraca was awarded $25,093,335 which was reduced to $23,838,668. Miles was found 100 percent liable for his injuries. Plaintiff sustained severe brain injury in intersection collision Case Type: Intersection Motor Vehicle Stop Sign Motor Vehicle Alcohol Involvement-Defendant Motor Vehicle Dangerous Condition Motor Vehicle Visibility Dangerous Condition of Public Property Case: Tran v. Arrellano, San Diego Co., Calif., Super. Ct., CU-PA-CTL, 10/13/2009 Plaintiffs Attorney: Christopher E. Angelo, Angelo & Di Monda LLP, Manhattan Beach, Calif. Defense Attorney: Randall L. Winet, Winet, Patrick & Weaver, Vista, Calif. Jury verdict: $24,804,135
14 Facts & Allegations On Nov. 18, 2006, plaintiff Bun Bun Tran, 38, a part-time deliveryman, was driving eastbound on Juniper Street in San Diego. Near the Commonwealth Avenue intersection, his 2002 Honda Acura was struck by a car driven by Leonel Arrellano. Tran, through his guardian ad litem Le Thi Nguygen, sued Arrellano for motor vehicle negligence, contending that Arrellano was legally intoxicated and ran a stop sign at the intersection. The plaintiff also sued the city of San Diego and Patricia L. Cole, who owned a house near the accident site, for dangerous condition. (Tran settled with the city for $1 million and Cole for $300,000. The city then sought partial reimbursement from Arrellano). Arrellano admitted partial liability, but he claimed that he could not see the stop sign because of overgrown bushes. He asserted that the bushes should have been properly maintained by either the city or Cole. Arrellano filed a cross complaint against American Honda Motor Co. Inc., claiming that the company should have installed head air bags in Tran s car. Honda settled with Arrellano for $35,000. Injuries/Damages coma; fracture, rib; hemorrhage; spleen; traumatic brain injury Tran sustained a major brain injury, which resulted in a brain hemorrhage. He also fractured his left rib cage and tore his spleen, which had to be removed. Plaintiff s counsel argued that Tran was in a semi-comatose state and that he could barely perform simple tracking with his eyes to the sound of his mother s voice. Plaintiff s counsel claimed that speech and occupational therapy was medically necessary. The lawyer also contended that Tran s life expectancy was decreased by 85 percent. At trial, Tran was living at Sharp Memorial Hospital in San Diego, but plaintiff s counsel predicted that he could live with round-theclock professional help in a specially modified home in the future. Defense counsel argued that Tran was in a persistent vegetative state and that he was not aware of his surroundings. The lawyer claimed that additional rehabilitation was not necessary and that Tran has a much shortened life expectancy. Result The jury found for Tran and against Arrellano and awarded $24,804,135 to Tran. Post-Trial The verdict was reduced to $23,370,747 to reflect past medical expenses that were charged, but not paid. A motion to reduce the damages award was denied. A motion for a new trial was denied. Two dead, one severely injured in tractor-trailer rear-ender Case Type: Motor Vehicle Tractor-Trailer Motor Vehicle Rear-ender Motor Vehicle Multiple Vehicle Case: Estate of Sperl v. C.H. Robinson Worldwide Inc., Will County, Ill., Cir. Ct., 04 L 428, 04 L 107, 05 L 812, 3/20/2009 Plaintiffs Attorney: John L. Cantlin, John L. Cantlin & Associates, Ottawa, Ill. (Estate of Sanders); Martin Healy Jr., The Healy Law Firm, Chicago (Estate of Sperl) Defense Attorney: Kevin M. Casey, Querry & Harrow, Chicago; William J. Ryan, Scandaglia & Ryan, Chicago Jury verdict: $23,775,000 Facts & Allegations On April 1, 2004, plaintiff William Taluc, 30, an office worker, was slowing down in his compact car for stopped traffic northbound on Interstate 55 near Plainfield. He observed in his rearview mirror a tractor-trailer, driven by DeAn Henry, approaching him at a high rate of speed. Taluc attempted to divert collision by veering to his right but was unsuccessful, as Henry, with her 18-wheeler which had a gross weight of 40 tons carrying potatoes, crashed into Taluc and proceeded to climb over his vehicle, crushing it. She continued forward and collided into a sedan directly in front of Taluc that was operated by plaintiffs decedent Thomas Sanders, 42, a chef. The impact forced the Impala into the rear of a pickup truck driven by plaintiffs decedent Joseph Sperl, 66, a retired financial consultant. That impact caused Sperl s truck to become pinned between Sanders vehicle and a tractor-trailer in front of Sperl. After striking Sperl s vehicle, Sanders car propelled airborne and ended upside down on top of another vehicle. Sanders and Sperl died within seconds after the crash, and Taluc suffered multiple injuries. In separate actions, Taluc and the other victims families sued Henry, Luann Whitener Black, who owned motor carrier Toad L Dragonfly Express of Utah, and C.H. Robinson Worldwide Inc., the broker of Bolingbrook, Ill., for motor vehicle negligence and wrongful death. The case, which consolidated the three 14 separate suits, proceeded to trial on the issue of whether Henry was an agent of C.H. Robinson, since Henry and Toad L Dragonfly admitted negligence and filed an interpleader action regarding its $1 million insurance policy. Henry worked for Black and her motor carrier for a number of years, and Henry s truck had a department of transportation-issued authority number through Toad L Dragonfly. For years C.H. Robinson worked with Henry though its contract with Toad L Dragonfly. According to the plaintiffs, on the freight that Henry hauled on the day of the accident, C.H. Robinson circumvented Dragonfly and directly contacted Henry to perform the haul. Therefore, Henry, at the time of the accident, acted as an agent of C.H. Robinson because it dispatched Henry regarding the load and required her to follow 10 special instructions, which included taking the temperature of the potatoes for quality purposes while en route to the storage facility in Bolingbrook; bought and owned the potatoes Henry was hauling; required the defendant to maintain constant communication with the broker; and C.H. Robinson had a right to fine Henry. According to Henry, she contracted directly with C.H. Robinson, who admitted that it received a call from Henry initially about transporting the potatoes. Plaintiffs counsel argued that, under state law, if the principal (i.e., C.H. Robinson) is controlling the agent (i.e., Henry) or has a right to control the agent, then the principal can be held liable for the conduct of the agent. The plaintiffs trucking expert concluded that C.H. Robinson, in fact, dispatched Henry. C.H. Robinson denied the allegations. Defense counsel asserted that C.H. Robinson was a freight broker and had no right to control the driver. C.H. Robinson relied on its contract with the carrier, which specified the drivers were independent contractors and were under the control of the carrier and not C.H. Robinson. The defense showed that, like seven prior loads handled by the carrier under the contract, the load at issue was booked, contracted and performed by Henry under Dragonfly s contract with C.H. Robinson. The defense argued that its instructions were expressly a part of the contract, and, consistent with the contract, were only sent to the carrier and not the driver. The defense further showed
15 that, consistent with the contract and all previous loads handled by the carrier, all invoicing and payments went through the carrier. C.H. Robinson denied it had the ability to discharge the driver. The defendant s theories were supported by its trucking expert. Henry testified that given the pick-up and delivery time imposed on her by C.H. Robinson, she would not have been able to deliver her load on time and stay within the federal hours of service regulations. C.H. Robinson argued that the regulations were the responsibility of the motor carrier, Dragonfly, and not the responsibility of C.H. Robinson. Injuries/Damages chest; collapsed lung; concussion; crush injury, leg; death; drop foot; foot; fracture, ankle; fracture, fibula; fracture, foot; fracture, leg; fracture, multiple ribs (bilaterally); fracture, pelvis; fracture, sacrum; fracture, tibia; fracture, vertebra; fracture, wrist; loss of consortium; loss of parental guidance; loss of services; loss of society; multiple trauma; peroneal nerve palsy; scar and/or disfigurement, body; scar and/or disfigurement, leg; torn aorta According to the plaintiffs pathology expert, Sanders died from a severed aorta when the roof of his vehicle was crushed after landing upside down on another vehicle. Sperl also died from a severed aorta that he sustained upon impact from blunt force trauma to his chest. Based on the testimonies on the expert pathologist and accident reconstructionist, who testified about the sequence of the wreck, the plaintiffs estimated that Sperl and Sanders experienced five to 10 seconds of conscious pain and suffering prior to death. Thomas widow and son talked about the impact his death had on their close-knit family, how he was a wonderful husband and father, and how he took care of his mother-in-law. The widow sought $5.5 million for loss of society and her son sought $4.25 million for loss of society. Sperl s surviving family members sought $10 million for loss of services and pain and suffering on behalf of the decedent. Sperl s children talked about how active their father was in their upbringing, which included participating in athletics like football, basketball and bike riding. Taluc was airlifted to Good Samaritan Hospital in Downers Grove, where he was treated for 17 broken bones (which were mostly in his right leg) as well as fractures to his feet, ankles, pelvis, sacrum, ribs, right wrist and a vertebra. He also sustained a collapsed lung, a concussion and peroneal nerve palsy in his right leg. He underwent four initial surgeries to reset the bones in his right leg and, after three weeks, was transferred to Marianjoy Rehabilitation Hospital in Wheaton, where, he underwent surgeries to remove blood clots and implant two metal plates and 14 metal screws in his right fibula and tibia. He was hospitalized for six to eight weeks. Discharged in a wheelchair, Taluc continued ongoing outpatient rehabilitation (he was fitted with a left orthopedic boot with limited weight bearing), and within three to four months he returned to work and eventually advanced to a walker and then crutches, until he was able to ambulate independently, albeit with a limp in his right leg. In 2006, Taluc underwent reconstructive surgery on his right foot wherein two metal screws were inserted. The plaintiff s treating orthopedic surgeon testified that Taluc would require seven future reconstructive surgeries on his right foot and ankle. He sought approximately $221,000 in past medical expenses and $250,000 for future medical expenses. Taluc sought damages for disability/loss of a normal life, as his counsel argued that Taluc s employability was severely diminished since he could only perform sedentary jobs for the rest of his working life, and that his work options were limited if he were ever to be let go in his current position. Unable to run, walk long distances or lift heavy objects, Taluc testified that, despite his condition, he was determined to return to work to provide for his wife and three children and maintain a life as he did pre-accident as much as possible. His wife, who was traveling to St. Louis with her children at the time of the wreck, recounted when she heard about the accident and that on her way to the hospital she did not know whether Taluc would survive. Taluc works during the day so that his wife can be with the children while she works evenings. The defense for C.H. Robinson cross-examined Taluc s physician and contended that his injuries were not as severe as opined, since he 15 was able to return to work within three to four months, and that he would be able to maintain a normal work life in his current sedentary position. Result The jury found that Henry was an agent of C.H. Robinson Worldwide at the time of the accident. It found against all of the defendants and awarded the plaintiffs $23,775,000. POST-TRIAL The defense asserted that an independent contractor relationship, not an agency relationship, existed as a matter of Illinois and federal case law involving similar broker carrier agreements. The court denied the motions, and C.H. Robinson Worldwide Inc. filed an appeal which is pending in the Third District Appellate Court. The judge also denied the estates of Sperl and Sanders damages for pain and suffering, which prompted a cross-appeal. Also pending is how the $1 million interpleader action will be allocated and whether C.H. Robinson Worldwide Inc. is responsible for the entire verdict. Plaintiff paralyzed on right side after high-speed rear-ender Case Type: Rear-ender Motor Vehicle Speeding Motor Vehicle Passenger Agency/Apparent Agency Vicarious Liability Case: Nelsen v. Hillyard Inc., San Bernardino Co., Calif., Super. Ct., CIVSS800884, 10/16/2009 Plaintiffs Attorney: Spencer R. Lucas and Brian J. Panish, Panish, Shea & Boyle LLP, Los Angeles Defense Attorney: Christopher M. Gilman and Amy K. Pennington, Wood, Smith, Henning & Berman LLP, Los Angeles Jury verdict: $21,067,094 Facts & Allegations On Aug. 17, 2007, plaintiff Michael Nelsen, 27, a student, was a seat-belted passenger in the backseat of a car that was traveling northbound on Interstate 15 in San Bernardino County. His vehicle was traveling approximately 15 mph in stop-andgo traffic when it was rear-ended by a Hillyard Inc. van driven by employee Mahlon Collar. Nelsen sued Collar, Hillyard and the owner of the van, ARI Fleet LT. He alleged that Collar was negligent in the operation of the vehicle and that the Hillyard and ARI entities were vicariously liable. Plaintiff s counsel contended that Collar was traveling 80 mph. Defense counsel conceded liability on the eve
16 of trial. However, defense counsel noted that the police report stated that Collar was driving 65 mph. Injuries/Damages anxiety; aphasia; cognitive deficit; embolism; fracture, L1; fracture, femur; memory loss; paralysis; physical therapy; speech impairment; stroke Nelsen sustained a burst lumbar fracture at L1 and a severe left femur fracture. He was taken to Arrowhead Regional Medical Center, where his femur fracture was stabilized and it was determined that he had sustained severe blood clotting and pulmonary emboli. As a result, he experienced a severe left-side, middle-cerebral artery stroke, which caused right-sided paralysis. He lost function of his right, dominant hand. Nelsen remained in the intensive care unit for three weeks. He then spent two months at a subacute facility relearning how to talk, walk and eat. He spent a year at a rehabilitation center in Orange County, where he underwent speech therapy, occupational therapy and physical therapy. Nelsen alleged ongoing, severe cognitive impairments and problems with his speech, memory and judgment. He has aphasia and problems understanding speech. He also has limited judgment and reasoning skills and severe anxiety, plaintiff s counsel reported. Plaintiff s counsel contended that Nelsen will need round-the-clock assisted-living care because of his cognitive deficits. Although he can physically complete most daily activities, he needs supervision. Nelsen will not be able to return to work. However, he does hope to volunteer in the future. He had planned on a career in computer animation and was studying at the California Art Institute. Defense counsel disputed the extent of Nelsen s injuries. Defense counsel argued that Nelsen would not need round-the-clock care, but instead only eight hours of care per day. Defense counsel purported that Nelsen should be awarded $5 million. Result The jury awarded $21, to Nelsen. Post-Trial The defense moved to reduce the stipulated past medical expenses, which the court denied in all respects save for one medical provider, and reduced the stipulated amount by $58,116 to $ The court awarded $159,505 in statutory interest and $134, in trial costs to plaintiff s counsel. The defense motion to tax costs was denied in part and granted in part. Lack of protection gear to blame for worker s 20-foot fall Case Type: Slips, Trips & Falls Fall from Height Construction Accidents Case: Arias v. Degar Fuel Systems Inc., Harris Co., Texas, Dist. Ct., , 4/23/2009 Plaintiffs Attorney: Brant J. Stogner, Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, Houston Defense Attorney: Not represented Jury verdict: $20,707, Facts & Allegations On Oct. 18, 2006, plaintiff Santiago Arias, 45, was employed as a construction worker by Degar Fuel Systems Inc., which had been hired by GSL Investment Inc. to raise the roof canopy on a warehouse in Houston. While demolishing the roof, approximately 20 feet above the floor of the warehouse, Arias fell and was paralyzed. Degar is a non-subscriber to workers compensation insurance. Arias sued Degar Fuel Systems and GSL Investments, alleging that he and all of the other workers weren t provided fall protection equipment or safety training, in violation of federal Occupational Safety and Health Administration regulations. GSL settled in early 2008 for $50,000. Degar argued that Arias was to blame for the fall. The plaintiff countered that Degar could not raise this defense because it is a workers compensation non-subscriber. Judge Tracy Christopher barred the defense from trial. Degar did not appear at trial and a default motion was entered. Injuries/Damages fracture, C3; quadriplegia Arias, a 45-year-old married father of three, fractured his C-3 vertebra, rendering him a quadriplegic with limited use of his right hand and limited ability to move his neck and speak. Arias is confined to a wheelchair and is unable to feed or wash himself. He requires catheterization and diapers, and continues to experience body spasticity and pain. His experts testified he will require daily nursing care for the rest of his life. He sought an unspecified amount for past and future medical expenses, pain and suffering, physical impairment, disfigurement and lost wages. Result The jury rendered a plaintiff s verdict, finding Degar negligent. It awarded $20,707,000. With prejudgment interest, the total is $21,684, Carpenter fell through skylight that wasn t properly covered Case Type: Labor Law Slips, Trips & Falls Fall from Height Construction Accidents Workplace Labor Law Workplace Safety Case: Angamarca v. New York City Partnership Housing Development Fund Inc., Kings Co., N.Y., Sup. Ct., /04, 4/8/2009 Plaintiffs Attorney: Marc C. Saperstein, Davis, Saperstein & Salomon, P.C., New York Defense Attorney: Phillip A. Tumbarello, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Jefferson Townhouses LLC) Jury verdict: $20,000,000 Facts & Allegations On Oct. 30, 2003, plaintiff Jorge Angamarca, early 30s, an undocumented alien from Ecuador who worked as a carpenter in New York, fell through a hole in a roof of a residential townhouse project under construction on Jefferson Street in Brooklyn. He was discovered lying unconscious on the second floor of the building. Although no one witnessed the fall and Angamarca had no recollection of what happened, there was circumstantial evidence that he probably fell two stories through an improperly covered skylight hole in the roof. Just prior to the fall, Angamarca and a co-worker were on the roof near the opening. There were only three pieces of plywood at the scene, two of which covered the two openings in the roof. More wood had been requested and was being sent up by lift. He sustained multiple fractures and a head injury. Angamarca sued owner New York City Partnership Housing Development Fund Company Inc., developer Jefferson Townhouses LLC, general contractor Novalex Contracting LLC and carpentry subcontractor Citywide contractors LLC pursuant to the provisions of New York s Labor Law sec. 240(1) that imposes liability [w]hen the circumstances of a worker s task create a risk related to an elevation differential, a basis of the imposition of liability under Labor Law sec. 240(1) is established. He did not sue his employer, Roadrunner Construction Corp.,
17 which subcontracted with Citywide. Plaintiff s counsel argued that the circumstances of the accident makes a prima facie showing that he fell through a hole in the roof and that liability was therefore established. He also relied upon expert testimony that the nature of his injuries was consistent with having fallen through the skylight opening rather than from a lift as the defense suggest may have happened. Defense counsel argued that the plaintiff was likely the sole proximate cause of his injuries and suggested that he toppled off the nearby lift, rather than falling through an opening in the roof. (However, there was no evidence that plaintiff had been seen on the lift prior to the accident or even that the lift was on the roof at the time.). Initial summary judgment motions as to liability made by both sides were denied. But on interlocutory appeal the plaintiff was granted summary judgment on liability and the all of the defendants were denied dismissal of the claims against them. Angamarca settled with all of the defendants except Jefferson Townhouses. Each of the settling defendants owed indemnification to Jefferson Townhouses. The plaintiff promised to hold harmless and indemnify the settling defendants from all claims arising from the accident. The case proceeded to trial against Jefferson Townhouses on damages only. Injuries/Damages broken arm; closed head injury; cognitive deficit; fracture, fibula; fracture, leg; fracture, multiple ribs (bilaterally); fracture, skull; fracture, tibia; fracture, ulna; fracture, vertebra; traumatic brain injury Angamarca fell two stories and bounced off various landing and protrusions of the interior building structure on the way down. He sustained fractures to his skull, tibia, fibula, ulna, multiple ribs and multiple vertebrae. He was found unconscious at the scene and he did not regain consciousness until approximately three months later in January. He also sustained a closed head injury, which ultimately left him with left side visual neglect (an inability to mentally process anything occurring in his left visual field). The blunt force trauma brain injuries resulted in extreme brain swelling. It was initially treated with the installation of a bolt drain to remove excess cranial fluids and relieve pressure. When this proved insufficient, a surgical procedure was performed whereby a portion of the skull was removed and there was a recession done to portions of the plaintiff s right temporal lobe and right frontal lobe. The surgical opening remained open for a three-month period, during which the removed portion of the plaintiff s skull was implanted into his abdomen where it remained until it was reattached to the skull in May. The plaintiff also underwent spinal surgery with the insertion of plates and screws for process and compression fractures to cervical and thoracic vertebrae. The plaintiff claimed severe cognitive deficit as a residual to his brain trauma and was described as being intellectually and mentally incapable of taking care of himself and his affairs for the rest of his life. By the time of trial, the plaintiff was ambulatory but walked with a severely awkward and restricted gate. The plaintiff s wife, Bianca Guguancela Encolade, claimed loss of consortium. By the time of trial the plaintiffs were legally divorced and had reached a confidential and undisclosed agreement by which Angamarca agreed to pay her a portion of his previous settlements. Defense counsel focused on the proper way to evaluate his future medical expenses. Defense counsel noted that Angamarca admitted in depositions that prior to the accident he and his wife had planned to return to Ecuador for the rest of their lives after they had saved up $20,000. Defense counsel maintained that the jury should evaluate his future medical expenses by the standards and projected expenses of Ecuador where he would enjoy the benefit of socialized medicine. When the court would not allow this direct argument to be made, the defense sought to at least cross-examine the plaintiff s economic experts as to whether they had taken into consideration the lower future medical costs that the plaintiff would actually incur in the event, if not likelihood, that he returned to Ecuador. That approach to the issue was not allowed by the trial court either, but the court was relying largely on procedural grounds having to do with the timeliness of the argument. The defense also challenged the plaintiff s 17 claims of cognitive deficit by showing that even though no one disputed that he spoke no English prior to the accident, he managed to gain fluency in English during his long convalescence without any formal instruction or attempt to do so. Result The jury awarded $20 million. The three other defendants settled for $1 million each on the third day of pretrial proceedings immediately prior to jury selection. The plaintiff s employer also settled for $1 million. Post-Trial Judgment was entered against Jefferson Townhouses for $16 million after credit was given for the settling defendants. The available insurance coverage was $10 million. Jefferson Townhouses has made unsuccessful motions for a new trial and the verdict is now being appealed. The plaintiff has also made post-trial applications alleging bad faith for the failure of the defendant s carrier to tender its entire policy, which will be the subject of a cross-appeal. Mother and three children severely injured in head-on Case Type: Head-On Motor Vehicle Passenger Case: Kearney v. Clifford, Ocean Co., N.J., Super. Ct., OCN-L , OCN-L-5-07, 4/1/2009 Plaintiffs Attorney: Roy D. Curnow, Law Offices of Roy D. Curnow, Spring Lake Heights, N.J. (Jennifer Roden); Norman M. Hobbie, Hobbie, Corrigan, Bertucio & Tashjy, P.C., Eatontown, N.J. (Madeline and Victoria Kearney and Alvin and Gavin Roden) Defense Attorney: Steven Antinoff, Parker, Young & Antinoff, LLC, Marlton, N.J. Jury verdict: $17,550,000 Facts & Allegations On Aug. 5, 2006, plaintiffs Jennifer Roden, 30, was driving with her children, Madeline Kearney, age 6, Victoria Kearney, age 4, and Gavin Roden, 4 months old, when an oncoming car driven by Corey Clifford crossed over the center line on East Main Street (Route 9) in Tuckerton and struck the Roden family vehicle head-on. The plaintiffs sustained severe injuries. The father was in the vehicle, but he was not injured. The Rodens, individually and on behalf of their children, sued Clifford for vehicular negligence. Clifford stipulated to negligence and the case proceeded on damages. Injuries/Damages appendix, ruptured; blunt force trauma to the head; concussion; drop foot; emotional distress; facial laceration; frac-
18 ture, calcaneus; fracture, femur; fracture, heel; fracture, metatarsal; fracture, toe; paralysis; paraplegia; scar and/or disfigurement, facial; spinal cord contusion; traumatic brain injury Mrs. Roden struck her head on the steering column and experienced a loss of consciousness for a short period of time. She sustained three metatarsal fractures in her left foot and a right calcaneus heel fracture in her right foot. She has permanent loss of range of motion in her right ankle and will require future ankle fusion. She regained consciousness to witness Victoria spewing blood from an open skull avulsion wound while Madeline was screaming that she couldn t feel her legs. Gavin was screaming as well. Mrs. Roden s most serious injury was for Portee emotional damages for having witnessed the trauma inflicted on her children. Madeline Kearney suffered spinal contusion at T-11 that rendered her a paraplegic. She also has foot drop. Victoria Kearney suffered a head injury and ruptured appendix for which she required an emergency appendectomy. She has significant hairline scarring on account of her head injury. Gavin Roden sustained a traumatic brain injury. He was treated at Children s Hospital for a subdural collection of fluids, which required the insertion of bilateral peritoneal shunts with tubing to relieve pressure and drain fluids to his abdomen. The shunts and tubing will be permanent. He has head enlargement from the internal pressure experienced at such a young age and will have to wear a helmet for the rest of his life whenever engaged in physical activity because he is so prone to further head injury. He is also at risk for future infections. Gavin also sustained a fractured femur for which he was required to wear a pavlik harness for an extended period of recovery. The father, Alvin Roden did not incur serious physical injury but claimed Portee emotional damage for having witnessed the trauma inflicted on his family. The defense, which was sufficiently adjectively aggressive to seek a dismissal of the plaintiffs complaint and to recover costs on account of a missed independent medical exam appointment, was more passive in its plenary defense. The defendant called no witness at trial and merely argued to the jury to be fair and reasonable based upon what the proofs were regarding the damages sought. An arbitration panel had awarded plaintiffs $8 million but Clifford s insurer, New Jersey Manufacturers, sought a trial de novo. Result The jury awarded $17,550,000. Post-Trial A defense remittitur motion is anticipated. The insurer had paid the plaintiffs property damage of $20,000 at the outset of the case and offered to pay the remaining $480,000 of available coverage. That offer was made in November It is anticipated that if the parties do not arrive at a satisfactory post-judgment settlement, the full amount of the judgment will be sought from the insurance company pursuant to subsequent bad faith. Man on side of highway killed when struck by driver under influence Case Type: Motor Vehicle Alcohol Involvement-Defendant Motor Vehicle Pedestrian Motor Vehicle SUV Damages Punitive Case: Novoa v. Meldon, Palm Beach Co., Fla., Cir. Ct., CA000904MBAO, 9/2/2009 Plaintiffs Attorney: Michael J. Overbeck, Michael J. Overbeck, P.A., Palm Beach Gardens, Fla.; Yvette Trelles, Trelles Law, West Palm Beach, Fla. Defense Attorney: James K. Clark, Clark, Robb, Mason, Coulombe & Buschman, Miami Jury verdict: $16,661,110 Facts & Allegations On Nov. 17, 2007, plaintiff s decedent Jose Ordonez, a 50-yearold electrician, was driving to work at 6 a.m. when he stopped to help a stranded motorist who had a flat tire on Interstate 95 near Hobe Sound. Ordonez pulled his car into the breakdown lane and offered. The other motorist had locked herself out her vehicle, so he went to his car to get her a sweater. As Ordonez was attempting to get the sweater he was struck and killed by a sport utility vehicle driven by Christopher Meldon, who had been drinking until 3 a.m. at a local strip club. Meldon pleaded no contest in the manslaughter case and is currently serving 11 years in prison. Ordonez s estate sued Meldon for vehicular negligence that resulted in his wrongful death. Defense counsel admitted liability and the case proceeded on damages. 18 Injuries/Damages death Ordonez died shortly after the accident. He was survived by his wife and five children: Isabella Ordonez, 1, Kevin Ordonez, 4, twin sons Clifford and Chester, 16, Marjorie, 22, and Cynthia, 25. Ordonez. He was married to his wife for five years. The parties stipulated to an economist s report finding $900,000 in economic losses. Plaintiffs counsel introduced a slide show of photographs that depicted how close the family was prior to Jose s death. The photographs depicted the family enjoying trips, holidays and occasions such as weddings. Testimony was offered about how loving and caring a husband and a father he was. The entire family lived within a few hours of each other except for the two oldest daughters. Plaintiffs counsel stated that the two oldest daughters did not seek damages for loss of support and services. Result The jury awarded $16,626, Post-Trial Plaintiff s counsel plans to file a bad-faith claim against GEICO. Defense counsel is seeking a new trial, maintaining that the jury should not have heard about Ordonez acting as a good Samaritan prior to the accident. Defense counsel stated that the GEICO adjuster stopped by the family home to offer his condolences and tender the full policy amount within days after the accident. Radio contestant died from water intoxication, survivors said Case Type: Wrongful Death Case: Strange v. Entercom Sacramento LLC, Sacramento Co., Calif., Super. Ct., 07AS00377, 10/29/2009 Plaintiffs Attorney: Robert B. Bale, Dreyer Babich Buccola Callaham & Wood, LLP, Sacramento, Calif.; Harvey R. Levine, Levine Steinberg & Miller, San Diego Defense Attorney: Donald W. Carlson, Carlson, Calladine & Peterson, San Francisco Jury verdict: $16,577,118 Facts & Allegations On Jan. 12, 2007, plaintiffs decedent Jennifer Strange, 28, died after participating in a contest sponsored by radio station KDND during a broadcast of The Morning Rave. Leading up to the death, various radio personalities on The Morning Rave promoted and advertised an on-air radio contest known
19 as Hold your Wee for a Wii. The contestant who consumed the most water in a threehour period without urinating would win a Nintendo Wii video-gaming system. Strange was one of 20 contestants. As the end of the three-hour, on-air contest approached, Strange and one other contestant were still vying for the prize. After finishing in second place, Strange rushed with the contest winner to the station s bathroom to vomit. She called the testing lab where she worked to report sick and headed home. That afternoon, her mother discovered her body, dead from an apparent water intoxication. Strange s widower and three minor children sued the limited-liability corporation that owns the radio station, its vice president, its parent corporation and seven former KDND employees. The complaint alleged that Strange died due to conduct by the defendants that was either negligent or intentional. It was alleged that the defendants provided the location and all facilities (including the drinking water) for the contest, which was conducted on-air and in the defendants Sacramento studio. Plaintiffs counsel argued that it was foreseeable that the contestants were at risk for serious illness and/or death from consuming extensive amounts of water in a relatively short period of time, and that prior to commencement of the contest, the defendants failed to conduct a reasonable investigation to determine the relative health risks to prospective contestants. It was also contended that Strange complained of feeling ill while in-studio and before claiming her second place prize on-air and that the defendants negligently failed to provide any assistance, medical or otherwise. There were also contentions of a failure to advise the contestants of the health risks presented by the contest and the plaintiffs alleged that if she had been properly informed of the risk, Strange would not have participated. Tape of the program revealed that the potential fatal effects of drinking too much water were raised during the course of the contest with one on-air host mentioning the 2005 death of a college student during a hazing ritual in Chico. A listener also called in to advise against the stunt. The defense contended that Strange s own negligence was a substantial factor in causing harm to herself; that the conduct was not inherently dangerous; and that Strange should have withdrawn from the contest, as 18 other contestants did, when she reached the limits of physical comfort. The individual defendants the radio personalities, management and staffers argued that they were not negligent or culpable because they lacked the intent to cause harm, did not act recklessly, and were not individually answerable to the plaintiffs in damages. All the individual defendants obtained dismissals from the case by way of stipulation, except for marketing director John Geary, who was let out at the end of the plaintiffs case. Confidential settlements were reached with all the other individual employees. The case went to trial as to the limited-liability corporation and the parent corporation. Injuries/Damages death; loss of society Strange lost her life. Her survivors widower William M. Strange, 30; and children Keegan Sims, 12; Ryland Strange, age 3; and Jorie Strange, 11 months made claims for wrongful death. (Keegan was born from a previous relationship.) Each plaintiff sought $5 million for loss of society and companionship, and together they demanded $25,000 for funeral expenses, $1.5 million for future lost earnings and $2.5 million for value of personal service. The defense challenged the method by which the plaintiffs calculated their damage demands. Result The jury determined that Entercome Sacramento, the managing entity, was negligent, but that Entercom Communications, the parent company, was not negligent. The jury rejected the contention that Strange s own negligence was a substantial factor in causing her harm. The damage award totaled $16,577,118, comprised of $1,477,118 in economic damages and $15.1 million in noneconomic damages. The award was reduced to $16.5 million pursuant to a high-low agreement entered 19 into at the conclusion of the plenary portion of the trial and before jury deliberations began with a high of $16.5 million and a low of $5 million. Post-Trial A further aspect of the posttrial high-low agreement was that within 90 days the parent corporation would implement a program to train its employees with regard to the consequences of negligent promotional undertakings. Award amounts reflect the jury s award and do not include increases or decreases resulting from contributory negligence, settlements or other post-trial activity. Reprinted with permission from the March 15, 2010 edition of The National Law Journal/verdictsearch ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information contact, or #
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