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Al Mustafa Smith v. J. Smith, R. Smith, Excelaire Service, Inc., Sikorsky Aircraft Corporation, United Technologies Corporation and CS Helicopter LLC, No. ESX-L-8224-06

Case Name

Al Mustafa Smith v. J. Smith, R. Smith, Excelaire Service, Inc., Sikorsky Aircraft Corporation, United Technologies Corporation and CS Helicopter LLC, No. ESX-L-8224-06

Type of Injury

HELICOPTER, AVIATION - AIRPLANE ACCIDENTS, NEGLIGENCE

Location

Essex County Superior Court, NJ

Verdict

The case settled for $4,350,000 following mediation with retired Superior Court Judge James D. Clyne, presently providing for mediation services with Benchmark Resolution Services Inc., in New Egypt. Of the settlement proceeds, $1.5 million will be used to purchase a structured settlement that will pay plaintiff approximately $3,850.00 per month, increasing by 3 percent and compounding annually, payments guaranteed for life or the age of 35, whichever is longer. Total payout over anticipated life expectancy of the annuity is over $4.2 million.

Verdict Amount

$4,350,000.00

Case Details

Judge: James D. Clyne J.S.C. (ret.) | Dennis F. Carey, III

Date: 07-01-2010

PLAINTIFF(S)

Attorney:

• Hugh M. Turk; Sullivan, Papain, Block, McGrath & Cannavo, P.C.; Hackensack, NJ, for Al Mustafa Mustafa

Expert:

• Col. Ren Hart; Pilot Performance/Error; Carmel, CA called by: Hugh Turk

• Renee Raynor Ph.D.; Neuropsychology; Durham, NC called by: Hugh Turk

• Edmond Provder C.R.C.; Vocational Rehabilitation; Hackensack, NJ called by: Hugh Turk

• Robert Heary M.D.; Neurosurgery; Newark, NJ called by: Hugh Turk

• Roger Turbin M.D.; Ophthalmology; Newark, NJ called by: Hugh Turk

• Anand Kasbekar Ph.D.; Design Testing & Analysis; Raleigh, NC called by: Hugh Turk

• Patrick O’Brien M.D.; Physical Rehabilitation; Raleigh, NC called by: Hugh Turk

• Matityahu Marcus Ph.D.; Economics; Springfield, NJ called by: Hugh Turk

DEFENDANT(S)

Attorney:

• Douglas H. Amster; LeClairRyan, P.C.; Newark, NJ, for CS Helicopter, LLC, Excelaire Service, Inc., J. Smith, R. Smith

• Peter B. Van DeventerJr.; LeClairRyan, P.C.; Newark, NJ, for CS Helicopter, LLC, Excelaire Service, Inc., J. Smith, R. Smith

• Robert F. Priestley; Mendes & Mount, LLP; Newark, NJ, for Sikorsky Aircraft Corporation, United Technologies Corporation

Expert:

• Doug Stimson; Helicopters; Los Angeles, CA called by: Douglas Amster

Facts:

On Sept. 13, 2005, plaintiff Al Mustafa Smith, 28, had been working as a lineman at Linden Airport, in Linden, since August 2005. Part of his job included refueling aircraft that were traveling through. At approximately 12:45 p.m. that day, he was asked to refuel a helicopter owned by CS Helicopter LLC and operated as part of Excelaire Service Inc.’s charter service. J. Smith was the pilot in command of the helicopter that day and the co-pilot was his relative, R. Smith.

The pilot taxied the helicopter to the fuel depot at Linden Airport to conduct a “hot” refueling, which is done with the engines on and rotors turning under power. The pilot positioned the helicopter “nose on” to the fuel tanks and, after bringing the helicopter to a stop, left its engines on at full speed, with the rotors turning. Shortly thereafter, Mustafa Smith drove up to the fuel tanks on a golf cart, got out and picked up a grounding strap which he had to attach to the helicopter before pumping the gas. As he walked toward the helicopter, with the grounding strap in hand, he was struck in the head by one of the rotating main blades of the helicopter. The entire event was caught on a security camera videotape, including the helicopter taxiing into position, the plaintiff driving toward the fuel depot in the golf cart and the impact itself.

Mustafa Smith sued the pilot, co-pilot, helicopter owner and charter service for negligence. (He also sued Sikorsky Aircraft Corporation and United Technologies Corporation for defective aircraft design, but these parties were dismissed early in the case, no defect having been found.)

Plaintiff’s counsel said that a hot refueling is inherently more dangerous than a cold refueling because the rotors are turning under full power. Plaintiff alleged the pilot was negligent in performing a hot refueling when it was not absolutely necessary to do so, failing to properly position his helicopter for such refueling and then not following the flight manual by failing to return the cyclic (i.e., joystick) to the neutral position. Had he done so, the blades would have been rotating at a height of over 8 feet above the ground and the plaintiff would not have been hit by one.

The plaintiff retained experts who, using the videotape evidence, demonstrated that the pilot never set the blades at the correct height by pulling back on the cyclic after coming to a stop. This would have prevented the occurrence by raising the blade path to over 8 feet, said the experts. The video and related testimony also indicated that the pilot had failed to keep a proper lookout over the ongoing refueling operation. Although he saw the plaintiff approaching the helicopter at a dangerous angle, the pilot looked away to do paperwork. If the pilot had been watching the plaintiff continue to approach, said counsel, he could have pulled back on the joystick and, in less than a second, moved the blades up and out of harm’s way.

The defendants claimed the accident was the sole fault of the plaintiff, who walked into an area which he knew to be hazardous — between the 10 o’clock and 2 o’clock positions from the nose of the helicopter — while the engines were on and rotors were turning.

Injury:

The plaintiff suffered trauma to the head, loss of his left eye, reduced vision in his right eye, an open depressed skull fracture, a traumatic brain injury and cerebrospinal fluid leak. He required two craniotomies to repair the leak, a repair of the skull base and placement of a ventriculoperitoneal shunt. He underwent the insertion of titanium mesh in his head during an August 2006 reconstructive surgery.

The loss of his left eye required a prosthetic eye. His right eyelid was atrophied, resulting in constant tearing and diminished vision in that eye. He had residual scarring across forehead and face.

The plaintiff experienced a reduction in intellectual capacity and functioning, resulting in an inability to care for himself. He also has impaired cognitive functioning, short-term memory loss and decreased problem-solving ability.

The plaintiff complained that he could no longer play piano, basketball or do any other physical activity as he did before the accident. Most significantly he claimed that he could not play with his daughter or even be left alone with her, nor can he travel by himself to see his family in North Carolina. He has lost 35 pounds since the accident and will have to be on medication for the rest of his life.

The plaintiff incurred medical bills of $1,580,292.66, and continues to be paid by workers’ compensation. Future lost wages discounted to present value were put at approximately $800,000.