Verdicts New

Eita Pruss v. Infiniti of Manhattan, Inc., Infiniti Financial Services, Infiniti Financial LLC, Massamba Seck, Dennis C Blanchette, Jon-Paul Rorech and Stiffel, Nicolaus & Company Inc.

HEAD INJURIES AND FRACTURES

Student

New York, New York

The parties negotiated a pretrial settlement. Infiniti of Manhattan’s primary insurer tendered its policy, which provided $5 million of coverage; Infiniti of Manhattan’s excess insurer agreed to pay $3,875,000; Blanchette’s insurer tendered its policy, which provided $100,000 of coverage; and Rorech’s insurer tendered its policy, which provided $25,000 of coverage. Thus, the settlement totaled $9 million.

$9,000,000

On Sept. 5, 2013, plaintiff Eita Pruss, 21, a student, was struck by a motor vehicle. The incident occurred on a median that separated Eastern Parkway, near its intersection at Kingston Avenue, in the Crown Heights section of Brooklyn. Dennis Blanchette was driving on the eastbound side of Eastern Parkway. When he reached the intersection, he began a left turn onto the northbound side of Kingston Avenue. His car’s right side was struck by a vehicle that was being driven by Massamba Seck, who was traveling on the westbound side of Eastern Parkway. Blanchette’s car was propelled onto the median, where it struck Pruss and other pedestrians. Pruss became pinned between the car and a pole. She suffered injuries of her back, a foot, her head, a knee, a leg, her pelvis, her sacrum and several ribs.

Pruss sued Blanchette; Seck; the owners of Seck’s vehicle, Infiniti Financial LLC, Infiniti Financial Services and Infiniti of Manhattan Inc.; and Seck’s employers Jon-Paul Rorech and Stifel, Nicolaus & Co. Inc. Pruss alleged that Blanchette and Seck were negligent in the operation of their respective vehicles, that Infiniti Financial LLC, Infiniti Financial Services and Infiniti of Manhattan were vicariously liable for Seck’s actions, and that Seck’s employers were liable because the accident occurred during Seck’s performance of his job’s duties.

Plaintiff’s counsel discontinued the claims against Infiniti Financial LLC, Infiniti Financial Services, and Stifel, Nicolaus & Co. The matter proceeded against Blanchette, Infiniti of Manhattan, Seck and Rorech.

Plaintiff’s counsel moved for summary judgment of liability. Justice Arlene Bluth ruled that each motorist was negligent with regard to the accident, but that a jury would have to apportion liability.

Plaintiff’s counsel contended that Blanchette should have yielded the right of way. They also claimed that Seck was speeding. They claimed that he was maintaining a speed of 51 mph, in an area in which the limit was 30 mph.

Frank DePasquale v. Morbark Industries v. Bob Wade’s Ground Maintenance ( Third-party Deft.)

ABOVE-THE-KNEE AMPUTATION

Employed by third-party deft. Bob Wade’s maintenance

Westchester, NY

$13,699,309, reduced to $6,849,654.50 for 50% comparative negligence of Pltf. (6/0).

$6,849,654.50

XI/1-1 PRODUCT LIABILITY WOODCHIPPER ABOVE-THE-KNEE AMPUTATION REMITTITUR REFUSED

Frank DePasquale v. Morbark Industries v. Bob Wade’s Ground Maintenance ( Third-party Deft.) 4583/89 6-week trial Verdict 10/23/92 Post-trial decision 6/8/93 Judge Samuel G. Fredman, Westchester Supreme

VERDICT: $13,699,309, reduced to $6,849,654.50 for 50% comparative negligence of Pltf. (6/0). Remaining liability: Morbark 25%; Bob Wade’s Ground Maintenance 25% negligent. Breakdown: $2,000,000 for past pain and suffering; $85,000 for past medical expenses; $74,309 for past lost earnings; $40,000 for past custodial care; $4,000,000 for future pain and suffering; $1,000,000 for future medical expenses; $6,500,000 for future lost earnings. Bob Wade’s Ground Maintenance settled for $560,000 at the end of the damages trial. Jury: 5 male, 1 female.

In a 19-page decision dated 6/8/93, Judge Fredman denied Deft.’s motion to reduce or set aside the award. See below.

Pltf. Atty: David J. Meiselman of Meiselman, Farber, Packman & Eberz, Mt. Kisco

Deft. Atty: Jonathan Kolbrener for Peter D. Kolbrener, Garden City, for Morbark

Richard C. Baker for Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele & Nicholson, Manhattan, for Bob Wade

Facts: The accident occurred on 8/23/88 at a residence on Bedford Rd. in Mt. Kisco. Pltf., an 18-year-old laborer, was employed by Third-party Deft. Bob Wade’s Maintenance (25% liable). Pltf. testified that he was feeding a tree limb into the chute of a Morbark Eegor Beevor Woodchipper, designed and manufactured by Deft. Morbark Industries (25% liable). The machine weighed several thousand pounds and measured 6 feet by 8 feet by 6 feet. As he was feeding the limb into the chute a branch protruding from the limb became stuck against the outside edge of the feed chute, preventing the branch from going through. Pltf. contended that he kicked at the branch to free it, but his momentum carried his foot into the feed chute, where it came in contact with the feedwheels.

Pltf. contended that the woodchipper was negligently designed in that the feed chute was too low to the ground and too shallow in depth from front to back, which allowed the operator to be exposed to the feedwheels. He also contended that there was no emergency kill switch to shut off the machine and no way for someone who is trapped by the wheel to free himself . Pltf. also contended that the feedwheel control bar was inaccessible to anyone trapped by the wheels.

Defts. contended that Pltf. was negligent for kicking at the branch and for allowing his leg to come in contact with the feedwheels.

Injuries: above-the-knee amputation of the left leg requiring four operations; psychological injuries with temperamental outbursts, crying jags, frustration, inability to socialize. A body builder before the accident, Pltf. testified that he suffered a loss of body image and claimed that he has become withdrawn from his friends. Pltf. also claimed that he has difficulty wearing his prosthesis. He was hospitalized for 1 month after the accident. He also spent 1 month in a rehabilitation facility. Evidence indicated that he will require future surgery. Pltf. Experts: James Bookhamer, White Plains; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Conrad Berenson, Ph.D., economist, Woodbury; Paul Glasgow, P.E., engineer, Valley Stream; Dr. Leslie Kurian, psychiatrist, Mt. Kisco; Eileen Bloomingdale, Ph.D., psychologist, Scarsdale; Dr. Carroll Lesesne, plastic surgeon, Mt. Kisco; Dr. Peter Stern, rehabilitative medicine, Rye. Deft. Expert: Robert Felix, arborist, Manchester, New Hampshire.

In a 19-page decision dated 6/8/93, Judge Fredman denied Deft.’s motion to reduce or set aside the award, noting that he “cannot view the future life of this amputee as so undeserving of an award of this nature as to consider it excessive, once the jury made its calculations.” Decision at p. 5. The court noted that it was ” . . . disturbed but unimpressed by the broad brush of hostility, contempt and ridicule visited by these attorneys upon one another in these post-trial papers.” Decision at p. 17.

Patricia Martin, as guardian of Michael Martin, and Virginia Caltabellotta v. City of New York and Frank Squillante

BRAIN DAMAGE, COMA, MULTIPLE FACIAL AND LEG FRACTURES, AND DEGLOVING INJURY

Queens, NY

$5,982,000 for Martin (6/0).

$5,982,000.00

XV/41-13 MOTOR VEHICLE PEDESTRIANS STRUCK CROSSING STREET BRAIN DAMAGE, COMA, MULTIPLE FACIAL AND LEG FRACTURES, AND DEGLOVING INJURY

Patricia Martin, as guardian of Michael Martin, and Virginia Caltabellotta v. City of New York and Frank Squillante 1638/95 3- week trial Verdict 3/26/98 Queens Supreme

Judge: John A. Milano

Verdict: $5,982,000 for Martin (6/0). Breakdown: $1,500,000 for past pain and suffering; $180,000 for past lost earnings; $402, 000 for past medical expenses; $1,000,000 for future pain and suffering; $75,000 for future medical expenses; $1,000,000 for home attendant; $25,000 for therapies; $1,800,000 for future impairment of earning capacity.

$1,569,800 for Caltabellotta (6/0). Breakdown: $1,000, 000 for past pain and suffering; $500,000 for future pain and suffering; $33,000 for past lost earnings; $36,800 for past medical expenses.

Post-trial motions were denied. Jury: 3 male, 3 female.

Pltf. Atty: Alan M. Shapey of Lipsig, Shapey, Manus & Moverman, Manhattan, for Martin

Derek S. Sells of Schneider, Kleinick, Weitz, Damashek & Shoot, Manhattan, for Caltabellotta

Deft. Atty: William J. Fay, Jr., Asst. Corp. Counsel

Facts: This motor vehicle accident took place at 9:30 PM on 8/21/94 on Grand Ave. in Maspeth, Queens, north of the intersection with Hamilton Place. It was raining at the time. Pltf. Martin, age 43 and employed by Brooklyn Union Gas as an A mechanic, and Pltf. Caltabellotta, a 44-year-old secretary, were crossing Grand Ave. to return to an American Legion barbecue when they were struck by a vehicle driven by Deft. Squillante, an on-duty Department of Corrections officer. The vehicle was leased to the City of New York. Pltfs. claimed that Deft. crossed the double yellow line, and that Squillante was driving at an unreasonable speed, given the conditions. Pltfs. further claimed that Squillante failed to see what was to be seen, and avoid the accident. Pltfs. produced a witness who testified that she saw Deft. trying to pass a slow-moving car and crossed over the center line.

Deft. contended that Pltfs. were negligent for crossing the street at a point that was not in the crosswalk. Squillante claimed that Pltfs. were in his lane of travel at the point of impact, and claimed that when he stopped, they were laying on the double yellow line. Deft. s deposition testimony, however, indicated that he did not see what happened. A breathalyzer test given to Squillante 2? hours after the accident was negative. Defts. were precluded from introducing evidence that Martin had a blood alcohol level of .374, because proper chain of custody was not proved. The judge also determined that there was not proximate cause.

Injuries: Martin: ($5,982,000 award) traumatic brain injury; bilateral comminuted fracture of the tibia and fibula requiring open reduction and internal fixation with rods. Pltf. was in a coma for 3 weeks following the accident, and was hospitalized for several months. He underwent five surgeries to his legs. He has no memory of the accident. Pltf. has the mental capacity of a 9-year-old, suffers from short-term memory loss, he is impulsive, lacks judgment, and cannot plan or sequence events. Testimony indicated that Pltf., who currently lives with his sister, Patricia, will require constant care. He is able to speak, after undergoing a course of speech therapy. At the time of trial, Martin was able to walk without a cane. Pltf., who was earning $51,000 per year, was unable to return to work. Caltabellotta: ($1,569,800 award) comminuted segmental fractured tibia and fibula of the left leg requiring open reduction and internal fixation with a rod; degloving injury to the right lower extremities wherein 70-80% of the flesh was torn from her leg; facial fractures including fractured ethmoid bone and fractured nasal bones. Pltf. was hospitalized for 2 months following the accident. She had skin grafts on the right leg. She is left with permanent deformities and scarring of the right leg, as well as scarring at the donor site on the right upper thigh. Pltf. had a traction pin inserted in the left ankle. She developed blood clots while in the hospital, requiring the administration of blood thinners. Pltf. was out of work for 1? years following the accident. She walked with a cane at trial. Pltf. is left with an angulation problem of the left knee joint, which, her expert opined, would accelerate the onset of arthritis. Deft. argued that Pltfs. injuries were not as severe as they claimed. Demonstrative evidence: photographs of the accident scene and of damage to the front passenger side of Deft. s vehicle; photographs of Caltabellotta after the surgery; X-rays; models of the tibia and fibula. Offer: $300,000 for Caltabellotta; $0 for Martin; demand: $750,000 for Caltabellotta; $ 3,000,000 for Martin. Jury deliberation: 6 hours.

Pltf. Experts: Steven Coulon, accident reconstruction, Bronx; Dr. Leon Bernstein, orth. surg., Forest Hills; Dr. Jonathan Korn, orth. surg., Manhattan; Dr. Eric Brown, neuropsychologist, Manhattan; Les Seplaki, Ph.D., economist, Fort Lee, New Jersey; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Expert: Dr. Norman Reis, orth. surg., Pearl River.

Francesco Alessio v. Amsterdam 78, LLC and Marson Contracting Co., Inc.

BACK AND KNEE INJURIES

Ironworker

Bronx, New York

After selection of a jury, but prior to the scheduled start of opening statements, the parties negotiated a settlement. Certified Interiors’ primary insurer tendered its policy, which provided $1 million of coverage; Certified Interiors’ excess insurer agreed to pay $1 million; the remaining defendants’ primary insurer tendered its policy, which provided $1 million of coverage; and their excess insurer agreed to pay $2.9 million. Thus, the settlement totaled $5.9 million.

$5,900,000

On Jan. 14, 2009, plaintiff Francesco Alessio, 47, a union-affiliated ironworker, worked at a construction site that was located at 230 W. 78th St., in Manhattan. While Alessio was backpedaling, he inadvertently stepped into a hole that had been created to house electrical or plumbing lines. He fell onto the floor, and he claimed that he suffered injuries of his back and a knee.

Alessio sued the construction project’s general contractor, Marson Contracting Co. Inc.; one of the project’s subcontractors, Certified Interiors Inc.; and the premises’ owner, Amsterdam 78, LLC. Alessio alleged that the defendants violated the New York State Labor Law.

Alessio claimed that the hole was not protected by a barricade or any other device that could have prevented the accident. He also contended that the work area was not adequately lighted. He claimed that the resultant dark conditions camouflaged the hole. He further claimed that the site’s managers had received complaints regarding inadequate lighting and unprotected holes.

Plaintiff’s counsel contended that the defendants violated New York Codes, Rules, and Regulations title 23, part 1.7(b)(1), which addresses protection of holes or openings that could cause falls, and New York Codes, Rules, and Regulations title 23, part 1.3, which addresses safety requirements at construction, demolition and excavation sites. Plaintiff’s counsel contended that the violations established that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law § 241(6). Plaintiff’s counsel also contended that the defendants violated Labor Law § 200, which defines general workplace-safety requirements.

Henry Nolasco v. Soho Plaza Corp. and Dermer Management Inc.

HIP FRACTURE, BACK FUSION, NERVE IMPINGEMENT

Laborer

Kings County, NY

The parties negotiated a pretrial settlement. The direct defendants’ primary insurer tendered its policy, which provided $1 million of coverage; the direct defendants’ excess insurer agreed to pay $2.3 million, from a policy that provided $25 million of coverage; the third-party defendants’ primary insurer tendered its policy, which provided $300,000 of coverage; and the third-party defendants’ excess insurer tendered its policy, which provided $2 million of coverage. Thus, the settlement totaled $5.6 million. Nolasco was allocated an immediate payment of $4.7 million, and the remaining funds were placed in an investment vehicle that will provide 30 years of monthly payments. According to Nolasco’s counsel, Nolasco’s projected recovery is $5,925,389.60.

The settlement’s negotiations were mediated by Kenneth Grundstein, of National Arbitration and Mediation Inc.

$5,600,000

On March 15, 2010, plaintiff Henry Nolasco, 40, a laborer, worked at a renovation site that was located at 514 Broadway, in the SoHo section of Manhattan. Nolasco was repairing an upper area of an apartment’s wall. During the course of his work, he fell off of a wheeled scaffold. He fell a distance of about six feet, and he landed on a floor. He claimed that he suffered injuries of his back, a knee and a hip.

Nolasco sued the premises’ owner, Soho Plaza Corp., and the premises’ manager, Dermer Management Inc. Nolasco alleged that the defendants violated the New York State Labor Law.

The defendants impleaded the owners of the subject apartment, Christy Birnbaum and Jason Birnbaum. The first-party defendants sought contractual indemnification.

The third-party action was dismissed via a reversal by the appellate division, Second Department. However, the third-party defendants’ counsel, anticipating another appeal, remained involved until the end of the litigation.

Nolasco claimed that the accident was a result of the scaffold having wobbled while he was descending it. He claimed that he had locked the scaffold’s wheels, but his counsel contended that blocks should have been situated about the wheels, to provide further stability. Nolasco’s counsel also contended that the scaffold was unsafe in that it lacked safety railings, and they claimed that Nolasco was not provided a harness, a safety line, or any other equipment that could have prevented his fall or his injuries. Nolasco’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Nolasco was not provided the proper, safe equipment that is a requirement of the statute.

Nolasco’s counsel moved for summary judgment of liability, and the motion was granted. The matter proceeded to damages.

Michael Hodor v. William Kooyker and Terence R. Kooyker

NECK INJURY AND FUSION

Technologist

New York, New York

The parties negotiated a pretrial settlement. The defendants’ insurer agreed to pay $5.5 million.

$5,500,000

At about 1 a.m. on July 18, 2009, plaintiff Michael Hodor, 30, a technologist, was a passenger of a car that was being driven by Terence Kooyker, who was traveling on Amsterdam Avenue, near its intersection at West 72nd Street, in Manhattan. Kooyker lost control of the vehicle, and the vehicle mounted a sidewalk and struck a lamppost. Hodor claimed that he sustained an injury of his neck.

Hodor sued Kooyker and the vehicle’s owner, Willem Kooyker. Hodor alleged that Terence Kooyker was negligent in the operation of his vehicle. Hodor further alleged that Willem Kooyker was vicariously liable for Terence Kooyker’s actions.

Hodor claimed that the accident occurred during wet conditions. He further claimed that Terence Kooyker was speeding and not exercising due caution.

Kooyker claimed that he lost control while attempting to avoid a taxi that had veered into the immediate path of his car. Defense counsel attempted to invoke the emergency doctrine, which prevents the attachment of liability to motorists who reasonably and prudently respond to a sudden, unexpected emergency that necessitates a speedy reaction.

Antonia Cruz v. Alhambra Day Treatment Center

BRAIN INJURY

Kings, NY

$5,412,500 (6/0). Breakdown: $1,250,000 for past pain and suffering; $4,162,500 for future pain and suffering (40 years).

$5,412,500.00

XVIII/6-18 ASSAULT VISITOR STRUCK BY MENTALLY DISABLED PATIENT AT FACILITY FAILURE TO TAKE PROPER SECURITY MEASURES BRAIN INJURY LUMBAR RADICULOPATHY

Antonia Cruz v. Alhambra Day Treatment Center 6365/97 4- day liability trial Verdict 4/00 6-day damages trial Verdict 6/29/00 Kings Civil

Judge: Debra Silber

Verdict: $5,412,500 (6/0). Breakdown: $1,250,000 for past pain and suffering; $4,162,500 for future pain and suffering (40 years). Jury: 5 male, 1 female. A post-trial motion is pending.

Pltf. Atty: William Pagan of William Pagan & Associates, P.C., Manhattan

Deft. Atty: Jozef K. Goscilo of Murphy & Higgins, L.L.P., Manhattan

Facts: On 11/10/88, the 29-year-old Pltf. was in the lobby of 1129 Catherine St. in Brooklyn, where she had come to complete a job application. Deft. s treatment center occupied the first floor of the building. Pltf. was waiting for the elevator when a mentally handicapped female patient of the facility assaulted her, pulling her by the hair and causing her to fall backwards onto the ground. At the time of the assault, Deft. s employee was escorting the patient to the lobby restroom. Deft. did not permit its patients to use the facility s restroom.

The patient had a history of assaulting other patients, as well as Deft. employees. At trial, Pltf. subpoenaed the employee who had been present during the assault. The employee testified that she was not trained to supervise violent patients, and had been told only to call for help in the event of a violent act by a patient. There were no security guards in the lobby. The claims against the owner of the building were dismissed during trial. Deft. contended that it acted reasonably under the circumstances, and that it was constrained by the laws of the State of New York in the way that it supervised its patients. Note: Subsequent to the liability verdict, each juror volunteered to return for the damages trial.

Injuries: traumatic brain injury; lumbar radiculopathy at L5-S1 confirmed by EMG; possible fractures at L-5 and S-3; post-traumatic stress disorder. Pltf. was admitted to Harlem Hospital on two separate occasions for treatment, and treated at the psychiatric outpatient clinic there for approximately 10 years, during which time she was medicated with anti-psychotic drugs. She claimed that she underwent a tubal ligation because she could not bear the pain of another pregnancy. Pltf. presently takes Percocet for pain and continues to receive treatment at Harlem Hospital. Her experts testified that she was left totally disabled and could not return to work. Deft. contended that Pltf. was malingering. Deft. s expert vocational rehabilitation expert testified that Pltf. could hold other positions, such as cashier. Note: The jury was told that Pltf. receives disability from the Social Security Administration, but was not told that she was found totally disabled by SSI. Demonstrative evidence: photographs of Pltf. prior to the accident; anatomical model of the back.

Pltf. Experts: Dr. Joseph Waltz, neurosurgeon, Bronx; Dr. Edmond Provder, vocational rehabilitation, Manhattan; Dr. Thomas Abraham, physical medicine and rehabilitation, Westwood, New Jersey.

Deft. Experts: Dr. Ralph Olson, neurosurgeon, Manhattan; Dr. Irving Etkind, orth. surg., Manhattan; Dr. James I. Hannon, psychiatrist, Manhattan; Dr. James Pascuiti, vocational rehabilitation, Springfield, New Jersey.

Brian Ward and Mila Ward v. Aurobindo Pharma USA Inc., Aurolife Pharma LLC, MWK and Company, New Jersey Boom and Erectors Inc., Tri-Steel Fabricators Inc. and Fania Roofing Company Inc.

PELVIS AND LUMBAR FRACTURES, BROKEN RIBS

Construction Foreman

Middlesex County, New Jersey

The parties settled before trial, for $5.35 million.

Aurolife Pharma paid $4 million, MWK & Co. paid $850,000 and Tri-Steel Fabricators paid $500,000. None of the companies paid their full insurance policy limits.

$5,350,000

On Sept. 3, 2014, plaintiff Brian Ward, 57, a construction foreman, was working in a building in Dayton.

The building was owned by New Jersey-based pharmaceuticals company Aurolife Pharma, LLC, which was converting it from office space to a drug-blending facility.

Ward was installing industrial equipment when he fell through an unguarded, 6-by-6 foot hole in a floor, plunging 16 to 20 feet to the floor below. He claimed injuries to his back, head, pelvis, ribs and left foot.

Ward sued Aurolife Pharma, general contractor MWK & Co. and subcontractor Tri-Steel Fabricators, alleging negligent maintenance that created a dangerous condition. He had also sued Aurolife Pharma’s parent company, Aurobindo Pharma USA Inc., and subcontractors New Jersey Boom & Erectors and Fania Roofing Co. However, they were all dismissed.

Ward’s employer, Nashua Brothers Pipefitters, was not a party because Ward had workers’ compensation, but the company was cited for a “serious violation” by the Occupational Health and Safety Administration for not providing Ward with a safety harness. MWK & Co. also was cited by OSHA for a “serious violation” for not providing Ward with a harness.

Ward claimed that he was not provided any safety equipment at the job site and that Aurolife and MWK & Co. were responsible for worker safety in the building. The companies should have ensured that workers were equipped with and using harnesses.

Ward also argued that, while the hole had been cut three months earlier, on the day before his accident Tri-Steel had cut the hole larger without posting notices near it or blocking it off in any way. An expert in construction safety for Ward concluded in a report that the hole should have been guarded in some manner.

Aurolife Pharma and MWK & Co. shifted blame to each other and claimed Ward was comparatively negligent. MWK & Co. contended that Aurolife was liable, because it had a safety manager on-site responsible for the entire area.

Tri-Steel, however, claimed it had instructed an employee of MWK & Co. to cover the hole.

An expert engineer for the defense opined that Ward was an experienced foreman and construction worker, with about 30 years in the business, and he should have known the risks and made sure he was wearing a harness and using other safety equipment.

In addition, the defense counsel argued, Ward had been in the area of the hole at least 10 times and knew of its presence.

Ivan Soba v. Cablevision Systems Corporation & Cablevision Systems New York City Corporation CSC Holdings Inc., sued herein as Cablevision Systems Corporation and Cablevision Systems, New York City Corporation and Tri-Wire Engineering Solutions Inc., No. 26026/07

WORKER BROKE LEG IN FALL FROM ‘INAPPROPRIATE’ LADDER

Queens Supreme, NY

The jury found that Soba’s damages totaled $5,003,801.54. However, Soba’s recovery was reduced to the stipulated limit: $4.5 million.

$5,003,801.54

Judge: Marguerite A. Grays (liability) | Jeffrey D. Lebowitz (damages)

Date: 05-10-2010

PLAINTIFF(S)

• David H. Perecman; The Perecman Firm, P.L.L.C.; New York, NY, for Ivan Soba

• Igor Cohen M.D.; Neurology; Astoria, NY called by: David Perecman
• Arkadiy Shusterman D.O.; Internal Medicine; Brooklyn, NY called by: David Perecman
• Michael Stracher M.D.; Orthopedic Surgery; Brooklyn, NY called by: David Perecman
• Edmond Provder C.R.C.; Vocational Rehabilitation; Hackensack, NJ called by: David Perecman
• Alan Leiken Ph.D.; Economics; Stony Brook, NY called by: David Perecman

DEFENDANT(S)

• Michael T. Colavecchio; Lewis, Johs, Avallone, Aviles & Kaufman, L.L.P.; Melville, NY, for Cablevision Systems Corp., Cablevision Systems New York City Corp.
• None reported; null, null, for Tri-Wire Engineering Solutions Inc.

• Howard Reiser M.D.; Neurology; Huntington, NY called by: Michael Colavecchio
• Stuart Hershon M.D.; Orthopedic Surgery; Manhasset, NY called by: Michael Colavecchio
• Sharon Levine; Vocational Rehabilitation; New York, NY called by: Michael Colavecchio

• The Hartford Insurance Group for Cablevision Systems Corp. and Cablevision Systems New York City Corp.

On April 17, 2007, plaintiff Ivan Soba, 32, an installer of cable-television systems, serviced a residence that was located at 183 Elton St., in the Highland Park section of Brooklyn. During the course of his duties, Soba fell off of the top half of an extension ladder. He plummeted about 12 feet, and he sustained an injury of a leg.

Soba sued the company that contracted his work, Cablevision Systems Corp., and a related entity, Cablevision Systems, New York City Corp. He alleged that the defendants violated the New York State Labor Law.

The defendants impleaded Soba’s employer, Tri-Wire Engineering Solutions Inc. They alleged that Tri-Wire Engineering Solutions controlled and directed Soba’s work functions.

The third-party claim was discontinued, but Tri-Wire Engineering Solutions’ insurer assumed the defense of all of the defendants.

Soba claimed that the extension ladder was not a sufficient tool, in that it was being used as a standalone ladder despite its lack of footings. He contended that the defendants should have provided a different ladder or braced and secured the extension ladder.

Soba’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law ? 240(1), and that Soba was not provided the proper, safe equipment that is a requirement of the statute. He also contended that the site was not properly safeguarded, as required by Labor Law ? 241(6).

Defense counsel contended that the accident was entirely a result of Soba’s misuse of the ladder. He claimed that available equipment would have permitted proper securing of the ladder.

Soba’s counsel moved for summary judgment of liability. Judge Marguerite Grays found that the defendants violated Labor Law ? 240(1), and, as such, she granted the motion. The matter proceeded to a trial that addressed damages.

Soba sustained an impacted comminuted fracture of the distal tibia of his left leg, which was treated with an external fixator during his initial hospitalization. He also sustained a fracture of the distal fibular shaft of the left leg, which was treated with open reduction and internal fixation with a plate and screws. Soba claimed that the fracture fragments from his injuries healed, but that deformities and defects remained. He also claimed that he suffered a shallow skin ulcer in the skin of his left ankle. He contended that he has difficulty walking, that he requires a cane and that he is in pain that requires medication. He also contended that he can no longer work in his prior occupation or any occupation that requires prolonged standing, walking, climbing or strenuous physical activity.

Soba sought recovery of his past and future medical expenses, his future life-care expenses, his past and future lost earnings, and damages for his past and future pain and suffering.

The parties stipulated that Soba’s damages could not exceed $4.5 million.

Verdict Information The jury found that Soba’s damages totaled $5,003,801.54. However, Soba’s recovery was reduced to the stipulated limit: $4.5 million.

Ivan Soba

$71,888 Personal Injury: Past Medical Cost

$792,780 Personal Injury: Future Medical Cost

$66,597 Personal Injury: Past Lost Earnings Capability

$1,277,710 Personal Injury: FutureLostEarningsCapability

$600,000 Personal Injury: Past Pain And Suffering

$1,500,000 Personal Injury: Future Pain And Suffering

$694,827 Personal Injury: future life-care cost

Samuel James and Lorraine James v. Southwest Fixture Installers, Inc., Nationwide Fixture Installations, Inc., American Installation Companies, Tanger Factory Outlet Centers, Icn., Fifth & Pacific Companies, Inc., Kate Spade LLC, The Store Kraft Manufacturing Company, Deer Park Enterprise, LLC

HEAD INJURY

Security Guard

New York

The parties negotiated a pretrial settlement. The insurer of American Installation, Nationwide Fixture Installations and Southwest Fixture Installers agreed to pay $5 million. The remaining defendants did not contribute. The parties are also negotiating a reduction of Mr. James’ workers’ compensation lien.

$5,000,000

During the evening of June 19, 2012, plaintiff Samuel James, 63, a security guard, worked at a shopping center that was located at 152 The Arches Circle, in the hamlet of Deer Park. Workers were installing a prefabricated salon wall in a store, and James was overseeing the site to prevent theft or property damage.

The wall was delivered in two sections. Workers unpackaged the first section and situated it in an upright position. While the second section was being unpackaged, the first section fell and struck James. James sustained an injury of his head.

James sued three commonly owned companies that had been hired to install the prefabricated wall, American Installation Cos., Nationwide Fixture Installations Inc. and Southwest Fixture Installers Inc.; the prefabricated wall’s manufacturer, The Store Kraft Manufacturing Co. Inc.; the store’s owner, Fifth & Pacific Cos. Inc.; a related entity, Kate Spade LLC; the shopping center’s owner, Tanger Factory Outlet Centers Inc.; and the shopping center’s developer, Deer Park Enterprises, LLC. James alleged that the defendants violated the New York State Labor Law.

Fifth & Pacific and Kate Spade LLC impleaded James’ employer, SOS Security LLC. Fifth & Pacific and Kate Spade LLC alleged that SOS Security was negligent in its training of James. They sought indemnification.

James claimed that no measures were undertaken to ensure his safety during installation of the wall. James’ counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that James was not provided the proper, safe equipment that is a requirement of the statute. He also contended that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law § 241(6). He further contended that the defendants violated Labor Law § 200, which defines general workplace-safety requirements.

The direct defendants’ counsel contended that James’ employment was not related to the installation that was being performed, and, as such, they claimed that the cited Labor Law statutes were inapplicable.

Maria D’Alessio by her g.a.l. Carmela D’Alessio v. Methodist Hospital of Brooklyn

BRAIN DAMAGE

Kings, NY

$26,000,000, reduced as excessive by the trial judge to $ 5,000,000

$5,000,000.00

VIII/46-8 MEDICAL MALPRACTICE — FAILURE TO DIAGNOSE RENAL FAILURE IN 2-MONTH-OLD — SEVERE BRAIN DAMAGE — REMITTITUR

Maria D’Alessio by her g.a.l. Carmela D’Alessio v. Methodist Hospital of Brooklyn 31000/83 12-day trial Verdict 11/30/90 Judge Joseph S. Levine, Kings Supreme

VERDICT: $26,000,000, reduced as excessive by the trial judge to $ 5,000,000 in a 3-page post-trial decision dated 4/10/91. Liability: Methodist Hospital 65%; Dr. William Owens (Pltf.’s treating pediatrician, original Deft. before declaring bankruptcy; he died before trial) 35% negligent. Breakdown: $6,000,000 for future pain and suffering for 35 years (reduced to 2,500,000); $12,000,000 for future custodial care ( reduced to $2,000,000); $8,000,000 for future therapy (reduced to $500,000 ). Judge Levine also ruled that Deft. was entitled to a reduction of 35% for the percentage of liability assigned by the jury to Dr. Owens, Pltf.’s private treating pediatrician. This action subsequently settled for a structured settlement with a present value of $4,000,000. See below. Jury: 2 male, 4 female.

Pltf. Atty: John E. Fitzgerald of Fitzgerald & Fitzgerald, Yonkers

Deft. Atty: Eugene McGarry of O’Brien, McGarry, Murtagh & Mayr, Rockville Centre

Facts: Pltf. was born on 8/30/71. She had dysmorphic facial features and an abnormality on chromosome #20. She was admitted to Deft. Hospital (65% liable) at 10:30 AM on 11/6/71 vomitting and suffering from diarrhea. She also had a fever for 3 days. Pltf. was diagnosed with bronchopneumonia and an IV and stat blood gas tests were ordered by a resident. The IV was started at 12:30 PM and electrolytes and blood gases were taken at 2:18 PM and at 5 PM, respectively. Pltf. claimed that when she was admitted to the hospital, the infant was suffering from moderate hypernatremic dehydration and impending shock. Pltf. contended that Deft. ‘s failure to note the child’s recent urine output and its failure to examine the mucous membranes was a departure from accepted medical practice. Pltf. contended that a BUN reading of 40 at 2:18 PM should have alerted Deft.’s residents to renal failure.

Pltf. contended that the hypernatremic dehydration was not diagnosed until 4:30 PM, when the child was comatose secondary to hypovolemic shock. Pltf.’s expert contended that Deft.’s fluid therapy was too low and that the hypotonic solution should have included human albumin. Pltf. argued that Deft.’s failure to record the child’s intake-output made it impossible to monitor her hydration, and Pltf. lost an additional 3 oz. in weight and body water during the first 24 hours that she was hospitalized. Pltf. also contended that Deft. was negligent for failing to provide a physician to supervise its residents.

Deft. contended that Pltf.’s private treating pediatrician, Dr. William Owens (35% liable, discontinued before trial), should have admitted her to the hospital sooner. Deft. also argued that Dr. Owens was responsible for the child’s care, and produced countersigned resident notes and orders. Dr. Owens had testified at his deposition that Pltf. was a service patient of the hospital.

Injuries: profound mental retardation; mild cerebral palsy; seizure disorder. Pltf. was age 20 at the time of trial and is ambulatory. Deft. argued, through the testimony of a geneticist, that Pltf.’s mental retardation was caused by her chromosomal abnormality. On cross- examination, this expert conceded that when Downs Syndrome and sex chromosome abnormalities (neither of which Pltf. had) are excluded, only 1% of institutionalized mentally retarded people have a chromosomal abnormality. (Note: Down’s Syndrome is related to an abnormality of chromosome #21; Pltf.’s abnormality was in chromosome #20.) Offer: $2,250, 000 (policy limit); demand: $3,275,000. Pltf. Experts: Dr. William E. Homan, pediatrician, White Plains; Dr. Harvey Bennett, pediatric neurologist, Brooklyn; Edmond Provder, rehabilitation and vocational expert, Manhattan; Seymour Barcun, Ph.D., economist, Edison, New Jersey. Deft. Experts: Dr. John Branche, pediatrician, Hempstead; Dr. Bhim Sen Nangia, pediatric neurologist (treating physician at the time of the alleged malpractice), Staten Island; Dr. Jessica Davis, geneticist, Manhattan; Meira Shahan, Ph.D., geneticist, Manhattan.

In a 3-page post-trial decision dated 4/10/91, Judge Levine reduced the award to $5,000,000 as excessive. He then ruled that under Killen v. Reinhardt, 71 A.D.2d 851, 419 N.Y.S.2d 175, Deft. was entitled to a 35% reduction assigned by the jury for Dr. Owens’ liability. “The fact that the plaintiff discontinued her claim against Dr. Owens without receiving a monetary settlement does not remove the case, particularly under the circumstances present here, from applications of General Obligations Law ? 15-108.” Decision at p. 3. The court also noted that this case “falls into the gap” in that CPLR ? 50-A (requiring a present value calculation) did not apply. He noted that, to avoid a “potential windfall judgment” for Pltf. ” . . . some courts have ruled that the only solution to this dilemma is the trial court’s power to deal appropriately with excessive verdicts.” Id., citing Hudson v. MABSTOA, ___ Misc.2d ___, NYLJ 12/24/90 [see NYJVR VIII/24-1] (J. Gammerman). The case then settled for a structured settlement with a present value of $4,000,000. Settlement apportionment: $1,879,020 payment up front, plus monthly payments of $7,000 per month guaranteed for 20 years and increasing at 3% per year, and lump sum payments totalling $1, 000,000. During jury deliberations, Hartford Insurance Co., Deft.’s insurance company, offered its policy limit of $2,250,000, which Pltf. rejected.

Katherine Waldo and Robert Waldo v. Timothy Goulet and Able Mechanical Inc.

HERNIATED DISCS

Cardiothoracic Nurse

Bergan County, New Jersey

The parties settled for $4,775,000, prior to trial, which was scheduled for March 4. Able Mechanical Inc. had a primary insurance policy of $1 million and an excess policy of $5 million.

$4,775,000

On Aug. 9, 2012, plaintiff Katherine Waldo, 41, a cardiothoracic nurse, was driving a Toyota Highlander in stop-and-go traffic on Route 4 west, in Paramus. She was heading toward the intersection with Route 17, when the rear of her sport utility vehicle was rear-ended by a van driven by Timothy Goulet. Goulet was driving in the course of his employment with Able Mechanical Inc., a New Jersey-based commercial heating and cooling contractor.

The impact forced Waldo’s SUV into the rear of the car in front of her, resulting in about $24,000 in property damage. She claimed she suffered injuries to her spine.

Waldo sued Goulet, alleging he was negligent in the operation of a vehicle. She also sued Able Mechanical Inc., alleging the company was vicariously liable for its employee’s actions.

Goulet and Able Mechanical stipulated to negligence, and the case went through litigation on issues of causation and damages.

Wanda Chambers v. City of New York Leo’s Pharmacy, Inc., Leonid Beres and Patrick Dillion KeySpan Energy Corporation

BACK, KNEE AND NECK INJURIES

Social Worker

Queens, NY

The parties negotiated a pretrial settlement. Dillon’s primary insurer tendered its policy, which provided $1 million of coverage, and Dillon’s excess insurer agreed to pay $1.7 million. Thus, the settlement totaled $2.7 million. The negotiations were mediated by Robert Adams, of National Arbitration and Mediation Inc.

$2,700,000

On April 7, 2011, plaintiff Wanda Chambers, 50, a social worker, fell while she was traversing a sidewalk that abutted the premises of 951 Wyckoff Ave., in the Ridgewood section of Queens. She claimed that she sustained injuries of her back, a knee and her neck.

Chambers sued the sidewalk’s owner, the city of New York; the adjoining premises’ owner, Patrick Dillon; a tenant of a neighboring building, Leo’s Pharmacy Inc.; and Leo’s Pharmacy’s owner, Leonid Beres. Chambers alleged that the defendants were negligent in their maintenance of the sidewalk. She further alleged that the defendants’ negligence created a dangerous condition that caused the accident.

Dillon impleaded a utility that was believed to have excavated a portion of the sidewalk and/or the adjoining roadway, KeySpan Energy Corp. Dillon alleged that KeySpan Energy negligently created a dangerous condition that caused the accident.

Beres and Leo’s Pharmacy were dismissed via summary judgment. The matter proceeded against the remaining defendants.

Chambers claimed that she tripped on a cracked, displaced portion of the sidewalk. Her counsel contended that the defect was a long-standing condition that should have been repaired. A witness claimed that the defect had been present during six or more of the 12 months that preceded the accident.

Chambers’ counsel also contended that the defect was not a result of excavation or any type of work having been performed. They claimed that no such work was documented.

Dillon’s counsel claimed that, during the week that preceded the accident, KeySpan Energy undertook a major excavation project in the area in which Chambers fell. He claimed that KeySpan Energy created the defect that caused Chambers’ fall.

Dillon’s counsel also contended that the sidewalk’s defect was an open, obvious condition that Chambers should have avoided. He claimed that Chambers had regularly frequented the area during the five years that preceded the accident.

The city’s counsel contended that, per New York City Administrative Code chapter 2, § 7-210, a premises’ owner is responsible for maintenance of a sidewalk abutting his or her property.

Christopher C. Harvey v. New Jersey Department of Transportation

LEG AMPUTATION

Road Worker

Middlesex County, New Jersey

The parties agreed to a $2,650,000 settlement on the eve of trial, in mediation with Judge Jessica Mayer.

$2,650,000

On May 20, 2011, plaintiff Christopher Harvey, 41, a road worker, was replacing pavement markers on Route 27 in Edison. While he was doing so, a safety truck, which was parked uphill and had been accidentally left by a co-worker in neutral gear, rolled downhill. It struck Harvey and pinned him to another truck. The impact crushed Harvey’s left leg and right foot.

Harvey was an employee of Traffic Lines Inc., a contractor for the New Jersey Department of Transportation.

He sued the Department of Transportation, alleging negligence in failing to properly supervise the project site.

He maintained that the two vehicles had been placed too close together on the site. He also argued that under state and federal law, the Department of Transportation had a duty to monitor safety on the site and that the accident would not have occurred if not for this breach in duty.

The defense counsel argued that the accident was the result of Harvey’s co-worker’s negligence, for which the department was not responsible.

Harvey’s engineering expert provided a report which argued that the department had notice of ongoing project dysfunction. He opined that the department did not understand or execute its supervision responsibilities.

The defense’s expert engineer disputed the report, arguing that the department was responsible only for general oversight.

Counsel for Harvey obtained acknowledgement that a worker’s compensation lien did not attach because the Department of Transportation is a public entit.

Concetta Frato and Helen Zakinthinos v. Roadway Express, Inc.; Robert Valen, Jr.; and Theopempti Angelidis, as Adm. of the Est. of Athanasios Aggelidis

BRAIN DAMAGE AND MULTIPLE FRACTURES

Waitress

New York, NY

This action settled for $2,500,000 for one Pltf., and $1,400,000 for another Pltf. during trial

$2,500,000.00

XIV/31-36 MOTOR VEHICLE PASSENGERS REAR END DISABLED TRACTOR-TRAILER IN TRAFFIC LANE BRAIN DAMAGE AND MULTIPLE FRACTURES INTOXICATED HOST DRIVER DIED

SETTLEMENT: Concetta Frato and Helen Zakinthinos v. Roadway Express, Inc.; Robert Valen, Jr.; and Theopempti Angelidis, as Adm. of the Est. of Athanasios Aggelidis 17831/91 Date of Settlement 12/18/96 New York Supreme

Pltf. Atty: Michael Maggiano and Andrew J. Calcagno of Michael Maggiano & Assoc., Fort Lee, New Jersey, for Frato

Joseph M. Irom of Irom, Wittels, Freund & Finley, Bronx, for Zakinthinos

This action settled for $2,500,000 for one Pltf., and $1,400,000 for another Pltf. during trial. The case arose out of an accident that occurred on 9/28/89 at approximately 5:25 AM on the lower level approach of the westbound Cross Bronx Expwy. to the George Washington Bridge. Pltf. Frato, a 23-year-old waitress at the time, was sitting in the middle of the back seat of a car driven by Deft. Aggelidis. Pltf. Zakinthinos, a 21-year-old exchange student from Greece, was a passenger in the front right seat. Three people were in the front seat of the car, and three were in the back seat. They were returning to New Jersey from a restaurant in Astoria. Pltf. claimed that as their vehicle was traveling in the left lane under Apartment Building No. 2, a highway tunnel, it drove around a bend in the road and suddenly came upon a disabled tandem tractor-trailer in their lane, owned by Deft. Roadway Express and driven by Deft. Valent. The tractor-trailer had suffered a blowout of the left front tire, and the tire had come completely off the rim. Pltfs. host vehicle crashed head-on into the rear of the tractor-trailer, killing Deft. Aggelidis, the driver of the car.

Pltfs. contended that although Deft. Aggelidis was intoxicated, he attempted an evasive maneuver to avoid the accident, as evidenced by the position of the steering wheel after the crash and the manner in which the car hit the back of the trailer. Pltfs. also contended that Deft. Valent, the driver of the tractor-trailer, was negligent for failing to properly place reflective triangles before the bend in the road, in violation of Federal statute; that Valent failed to activate his four-way flashers or other lights; and that he improperly parked the truck in the left lane around a blind curve in the road at night, although he could have parked it at either of two emergency stop areas to the right of the road before the blind curve. Pltfs. also argued that although the truck s tire had completely come off the rim, Valent could have safely driven into the right lane off the Cross Bronx Expwy. to the nearest exit ramp 1/10 of a mile away, or he could have driven it on the rim across the George Washington Bridge. Pltfs. also argued that Deft. Valent could have walked on the sidewalk along the road with a flashlight to warn oncoming traffic. Pltf. and Deft. Aggelidis Estate argued that although decedent was intoxicated, Valent s negligence was the proximate cause of the accident. Valent contended that the proximate cause of the accident was decedent s intoxication. He contended that the tire blowout forced his tractor- trailer into the left lane, and once the tire came off the rim, he was unable to move the truck. He also claimed that he properly placed triangles in the apex of the curve, and that his four-way flashers were on.

Injuries: Frato (23-year-old waitress $2,500,000 settlement) brain damage with cognitive dysfunction; depressed right temporal skull fracture with epidural hematoma, requiring a right temporal craniectomy and evacuation of the hematoma; post-traumatic seizure disorder; post- traumatic stress disorder; fracture at C4-5; pneumothorax requiring surgery for the placement of a chest tube; temporomandibular joint dysfunction; post-traumatic perilymphatic fistula of the right ear requiring surgery. Pltf. was totally disabled from work, and her driver s license was revoked due to the seizure disorder. Zakinthinos (21-year-old student $1,400,000 settlement) compound fracture of the distal tibia and fibula requiring several surgeries and, ultimately, an ankle fusion. Pltf. has a slight limp and a limitation of motion in her foot.

Note: Aggelidis offered the remaining $460,000 of his $500,000 policy prior to trial (Aggelidis had previously settled for $40,000 with two other passengers who were not a part of this suit), but this offer was rejected by both Pltfs. because of the ramifications of GOL 15-108. Demonstrative evidence: video showing that a truck can be steered safely on a rim without a tire; the actual rim from the truck shown in the video; illustrations showing brain surgery; video of perilymphatic surgery; photographs of Pltf. Frato before and after surgery; enlargements of police photographs of the accident scene; night-time video of approach to the accident scene. Carriers: Liberty Mutual for Roadway (excess); Allstate for Aggelidis. Settlement apportionment: Roadway Express paid $2, 270,000 to Frato; Est. of Aggelidis paid $230,000 to Frato. Pltf. Experts: Dr. Michael Sisti, neurosurgeon, Manhattan; Dr. Ronni Seltzer, psychiatrist, Englewood, New Jersey; Dr. Ulises Sabato, neurologist, New Jersey; Dr. Alan Groveman, neuropsychologist, New Jersey; Dr. Kenneth Kutner, neuropsychologist, New Jersey; Dr. Joel Lehrer, otolaryngologist, Teaneck, New Jersey; Dr. Mitityahu Marcus, Ph.D., economist, Westfield, New Jersey; Edmond Provder, vocational rehabilitation, Manhattan; David Stopper, accident reconstruction and trucking expert, Manassas, Virginia.

Edward Feldman and Jill Feldman v. Evenson Best LLC and Hector L. Zambrana

KNEE AND CHEST INJURIES

Commercial Real Estate Broker

New York

The parties negotiated a pretrial settlement. The defendants’ insurer agreed to pay $2.5 million.

$2,500,000

On Nov. 2, 2010, plaintiff Edward Feldman, 62, a commercial real estate broker, was struck by a furniture delivery van. The incident occurred on Third Avenue, alongside its intersection at East 15th Street, in Manhattan. Feldman claimed that he sustained injuries of a knee, several ribs and his spleen.

Feldman sued the van’s driver, Hector Zambrana, and the van’s owner, EvensonBest, LLC. Feldman alleged that Zambrana was negligent in the operation of his vehicle. Feldman further alleged that EvensonBest was vicariously liable for Zambrana’s actions.

Feldman claimed that the impact occurred in a crosswalk, that a pedestrian-traffic signal permitted his entrance to the intersection, and that Zambrana ignored a red traffic signal that should have prevented his entrance to the intersection.

Zambrana claimed that a green signal permitted his entrance to the intersection. He also claimed that Feldman was engaged in conversation on a cellular telephone at the time of the accident. However, Feldman claimed that he was simply carrying his telephone; not engaged in conversation.

Henryk Rozbicki v. The Metropolitan Museum of Art, Lehrer McGovern, Bovis Construction v. Casalino Demolition Corp.

HERNIATED LUMBAR DISCS AND VERTEBRAL FRACTURE

Demolition worker

New York, NY

This Labor Law action settled for a structured settlement with a present value of $1,300,000 and a future payout of $2,490,000.

$2,490,000.00

XV/31-44 SCAFFOLD ACCIDENT LABOR LAW HERNIATED LUMBAR DISCS AND VERTEBRAL FRACTURE

SETTLEMENT: Henryk Rozbicki v. The Metropolitan Museum of Art, Lehrer McGovern, Bovis Construction v. Casalino Demolition Corp. 106894/94 Date of Settlement 9/30/97 New York Supreme

Pltf. Atty: Robert R. MacDonnell of Samuel J. Lurie, Manhattan

This Labor Law action settled for a structured settlement with a present value of $1,300,000 and a future payout of $2,490,000. Pltf., a 39-year-old demolition worker, claimed that on 12/9/93, he fell from a scaffold while working at Deft. museum. Pltf. claimed that the scaffold was unsafe and not equipped with safety belts. The court found that Deft. violated Labor Law ?240 and granted Pltf. summary judgment on liability on 9/6/96.

Injuries: fractured vertebra at L1; herniated discs at L3-4, L4-5, L5- S1; fractured fourth metacarpal of left (non-dominant) hand with open reduction and insertion of a plate and three screws. Pltf. had not returned to work at the time of trial. Defts. claimed that Pltf. s herniated discs were degenerative and not related to the accident. Specials: $80,000 for Workers Compensation lien. Carriers: Providence Washington; SIF; Travelers.

Pltf. Experts: Dr. Jonathan Korn, orth. surg., Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Conrad Berenson, Ph.D., economist, Woodbury; Dr. Marc Kaisman, anesthesiologist, Manhattan.

Deft. Experts: Dr. Jerome Block, neurologist, Manhattan; Dr. Peter Godsick, orth. surg., Manhattan.

Eric Brown v. Turner Construction Co., New York City School Construction Authority, et al.

MULTIPLE FRACTURES, IMPOTENCE, ANKLE FUSION

Ironworker

NY

This action settled following mediation for a $2,450,000 structured settlement plus the waiver of a Workers’ Compensation lien of approximately $300,000.

$2,450,000.00

XVI/10-40A LABOR LAW IRONWORKER FALLS FROM BEAM MULTIPLE FRACTURES, IMPOTENCE, ANKLE FUSION SETTLEMENT AFTER MEDIATION

Eric Brown v. Turner Construction Co., New York City School Construction Authority, et al. 113178/93 Date of Settlement 7/17/98 Mediator: Judge Michael J. Dontzin

Pltf. Atty: Jeffrey M. Rich of Rich & Rich, Manhattan

This action settled following mediation for a $2,450,000 structured settlement plus the waiver of a Workers’ Compensation lien of approximately $300,000. On 5/3/93, Pltf., a 34-year-old ironworker, fell 20 feet from a structural steel beam onto a concrete slab during the construction of P.S. 4 in Manhattan. Partial summary judgment was granted in February 1997 under Labor Law ?240(1).

Injuries: fractures of the pelvis, right ankle, and left (nondominant) thumb; collapsed lung with pleural effusion; ruptured bladder requiring catheterization; transected urethra, rendering Pltf. organically impotent and requiring the use of an inflatable penile prosthesis. After the accident, Pltf. was in the intensive care unit for 18 days on a respirator, nasogastric feeding tube, and Foley catheter. He was hospitalized for 1 month, and has since undergone six hospitalizations for repair of his bladder and urethra. At the time of settlement, he was planning to undergo a right ankle arthrodesis. Defts. argued that Pltf.’s fractures did not require open reduction or internal fixation, and had resolved. They also contended that his penile prosthesis functions properly.

Note: As part of the settlement, Defts. agreed to pay for future ankle fusion surgery. Structured settlement details: The settlement has a guaranteed payout of $3,521,534 with $1,450,000 cash up front and $1,000, 000 structured.

Pltf. Experts: Pltf. would have called Dr. George Owens, urologist, White Plains; Dr. Ridwan Shabsigh, urologist, Manhattan; Dr. Jerry Lubliner, orth. surg., Manhattan; Edmund Provder, vocational rehabilitation, Occupational Assessment Services, Manhattan; Irwin Stricker, economist, Merrick.

Deft. Expert: Deft. would have called Dr. Mark Stein, urologist, Bronx

Sherry Williams as m/n/g of Latasha Linwood, inf. v. County of Nassau

SPASTIC QUADRIPLEGIA

Nassau, NY

This action settled during jury selection for $2,300,000, plus non- assertion of a $13,800 Medicaid lien

$2,300,000.00

XVII/29-49 MEDICAL MALPRACTICE CHILDBIRTH FAILURE TO TIMELY PERFORM CAESAREAN SECTION SPASTIC QUADRIPLEGIA DEVELOPMENTAL DELAYS

SETTLEMENT: Sherry Williams as m/n/g of Latasha Linwood, inf. v. County of Nassau 25754/83 Date of Settlement 2/5/99 Nassau Supreme

Pltf. Atty: Joseph P. Awad of Silberstein, Awad & Miklos, P.C., Garden City

This action settled during jury selection for $2,300,000, plus non- assertion of a $13,800 Medicaid lien. The infant Pltf. was born prematurely on 3/4/82 at the Nassau County Medical Center in East Meadow. On 2/25/82, Pltf. mother, age 18, presented to the obstetrical clinic at Deft. s medical facility and was determined to be at approximately 28 weeks gestation. On the following day, her attending physician, a Dr. Tejani, supervised residents during a cerclage procedure. Pltf. was admitted on 3/2 and experienced spontaneous rupture of the membranes on 3/3. Dr. Tejani did not return to examine Pltf. until the next day, at which time he noted that the amniotic fluid was purulent and odorous, and he diagnosed chorioamnionitis.

The vaginal exam indicated that Pltf. was 1 cm dilated but was not effaced and that the fetus was at the minus three station. Pltf. was fitted with an internal monitor, and a Pitocin drip was started and was administered throughout the morning. A Caesarean section was performed at approximately 1:30 PM; the infant Pltf. s Apgar scores were 4 and 7 at the time of delivery. The pathology report revealed that the placenta had acute chorioamnionitis and Deft. diagnosed a trivascular umbilical cord with vasculitis and funisitis.

Pltf. claimed that Deft. s failure to timely perform a Caesarean section constituted a departure from good and accepted medical practice. She contended that the rupture of the membranes placed her as a high risk pregnancy, and that as such, there was a need for greater surveillance due to the possibility of an intrauterine infection. She also contended that a cerclage procedure at 28-29 weeks gestation was not indicated and that it caused or contributed to the resulting infection and premature birth. Pltf. claimed that since her cervix was not inducible as per her Bishop s score (which measures diastolic blood pressure made directly by the weight of the liquid and not by compressed air), Dr. Tejani s decision to begin the Pitocin drip was contraindicated.

Injuries: spastic quadriplegia; brain lesion resulting in periventricular leukomalacia; developmental delays. The infant Pltf., now age 17, is confined to a wheelchair and needs assistance with daily activities and personal care. She is a high school junior and possesses ordinary intelligence. Pltf. s mother claimed that the brain lesion was caused by the cytokine reaction from the infection and the premature delivery. She contended that infection was negligently permitted to worsen, and claimed that Deft. departed from accepted standards by failing to associate an amniotic fluid infection with spastic quadriparesis, since it is a known indicator of the paralysis.

Deft. contended that the infection was already present when Pltf. mother first presented for prenatal care and that it was a judgment call to perform the cerclage procedure. Deft. further contended that Dr. Tejani, who was a specialist in maternal fetal medicine and director of the department, exercised medical judgment as to when to perform the Caesarean section.

Pltf. Experts: Pltf. would have called Dr. Aubrey Milunsky, geneticist, Boston, Massachusetts; Dr. Edmond Provder, vocational rehabilitation, Manhattan; Dr. Leon Charash, pediatric neurologist, Hicksville; Andrew Weintraub, Ph.D., economist, Pennsylvania.

Deft. Expert: Deft. would have called Dr. Robert J. Gould, pediatric neurologist, New Hyde Park.

Peter Leonce v. Prince Street Associates; Gordon Construction Corp.; and Upgrade Contracting Co., Inc. v. B&W Building Corp.

MULTIPLE PELVIC FRACTURES AND POST-TRAUMATIC STRESS DISORDER

B&W employee

Kings, NY

$2,261,293.

$2,261,293.00

XV/48-6 LABOR LAW SCAFFOLD ACCIDENT CARPENTER SUFFERS MULTIPLE PELVIC FRACTURES AND POST-TRAUMATIC STRESS DISORDER

Peter Leonce v. Prince Street Associates; Gordon Construction Corp.; and Upgrade Contracting Co., Inc. v. B&W Building Corp. 42791/94 5- week trial Liability verdict 3/11/98 Damages verdict 4/6/98 Kings Supreme

Judge: Edward M. Rappaport

Verdict: $2,261,293. Breakdown: $1,000,000 for past pain and suffering; $400,000 for future pain and suffering; $112,500 for past lost earnings; $580,000 for future lost earnings; $112,293 for past medical expenses, of which $108,693 was stipulated; $56,500 for future medical expenses.

Liability on statutory responsibility under Labor Law ?240: Prince 10%; Gordon 40%; Upgrade 50%; apportionment of liability: Gordon 40% and Upgrade 60% negligent. Defense verdict for B&W. Jury: 3 male, 3 female. Post-trial motions were denied on 7/29/98.

Pltf. Atty: Spencer H. Herman of Hoberman, Sussman & Herman, Brooklyn

Deft. Atty: Robert J. Seminara of Chalos & Brown, Manhattan, for Prince Street and Gordon Construction

Roger P. McTiernan of Barry, McTiernan & Moore, Manhattan, for Upgrade Contracting

Warren T. Harris of Caulfield, Heller, Harris & Ryan, Manhattan, for Third-party Deft. B&W

Facts: The accident occurred on 9/12/94 at approximately 11:30 AM at 109 Prince St. in Manhattan. Pltf., a 31-year-old carpenter employed by Third-party B&W, testified that he fell approximately 30 feet from a suspended scaffold while working at the site. He brought this suit under Labor Law ?240. B&W was a carpentry subcontractor (defense verdict) hired by the general contractor, Gordon Construction (40% liable), to perform window installation and other work. Deft. Prince Street (10% liable under the Labor Law) was the building owner, and Deft. Upgrade Contracting ( 50% liable under the Labor Law) agreed to arrange for the scaffold to be erected, furnished, and manned. Pltf. gained access to the scaffold by climbing on top of an elevator cab inside the building, onto the window ledge, and then onto the scaffold. As he stepped up onto the scaffold, it shook and tipped. Pltf. s personal safety line had not been properly secured to the lifelines running from the top of the building, and he fell. Pltf. contended that Upgrade had agreed to provide two men to operate and man the scaffold, but only one was present at the time of the accident. The general contractor s president was the site safety supervisor, but had taken the day off . The court directed a verdict against Prince and Gordon under ?240 of the Labor Law at the end of the liability trial, and the jury found that Upgrade was a statutory agent.

Injuries: multiple pelvic fractures, including the left acetabulum, which were treated by traction and total bed confinement for the first 2 weeks of Pltf. s 28-day hospitalization; fractured left metacarpal; post-traumatic stress disorder; depression; chronic pain syndrome. The left hip injury and the fractured metacarpal eventually required open reduction and internal fixation, and the fixation devices are still in place. In addition, Pltf. suffered a torn right rotator cuff (for which he underwent surgery 10 months later), sustained two lumbar fractures, and developed diffuse L5-S1 radiculopathy (confirmed by EMG). He underwent physical and occupational therapy, and requires a cane to ambulate. Pltf. claimed that he can no longer work in construction. Defts. argued that he can work in other fields. At the time of trial, Pltf. was studying to become a bible teacher. He claimed that he is presently unable to perform even sedentary work due to chronic hip and back pain. Pltf. s experts testified that his injuries are permanent and that he will require 3-5 years of treatment and therapy. Pltf. s orthopedist testified that arthritis has developed in the hip, and that Pltf. will probably need a hip replacement. Demonstrative evidence: medical diagrams of the pelvis and lumbosacral plexus; model of the shoulder; X-rays; enlargements of hospital records; photographs of Pltf. in the hospital. Offer: $1,000,000; demand: $2,750,000; amount asked of jury: $6,000,000. Carriers: USF&G for Upgrade; Travelers for B&W; Interstate Fire & Casualty for Prince Street; New York Marine & General Insurance Co. for Gordon Construction.

Pltf. Experts: Dr. Franco Cerabona, treating orth. surg., Manhattan; Dr. Christopher Fabian, treating psychiatrist, Manhattan; Dr. Brian Hainline, treating neurologist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Conrad Berenson, Ph.D., economist, Woodbury; Lynn Bassini, physical therapist, Brooklyn.

Deft. Experts: Dr. Stephen Gilbert, neurologist, Brooklyn; Dr. Frank Goldberg, psychologist, Brooklyn (Workers Compensation physician); Dr. Edward Toriello, orth. surg., Middle Village (Workers Compensation physician).

Manuel De Jesus Garcia v. Mark Michaud

TRAUMATIC BRAIN INJURY, FRACTURES

Truck Driver

Travis County, Texas

The case settled shortly before trial for $2.25 million, which was the combined policy limit. The primary coverage was $250,000, and the excess coverage was $2 million.

$2,250,000

On July 25, 2013, plaintiff Manuel De Jesus Garcia, a truck driver, was riding a 2012 Yamaha Star motorcycle south on North Lamar Boulevard, in Austin. Mark Michaud, in a 2011 Infiniti FX35 sport utility vehicle, was eastbound on West 5th Street. Michaud ran a red light at North Lamar Boulevard and struck Garcia, who sustained a head injury and a broken leg.

Garcia sued Michaud for negligently running a red light, failing to yield the right of way, failing to keep a proper lookout, driving too fast and failing to brake or turn to avoid the collision. Michaud got a ticket for running the light.

The defense was not strongly disputing liability.

Giacomo and Margaret Terranova v. City of New York

BRAIN DAMAGE AND THROMBOPHLEBITIS

Carpenter

New York, NY

This action settled for $2,200,000 during trial

$2,200,000.00

XI/40-27 SCAFFOLD ACCIDENT LABOR LAW BRAIN DAMAGE AND THROMBOPHLEBITIS

SETTLEMENT: Giacomo and Margaret Terranova v. City of New York; Metropolitan Museum of Art; Lehrer McGovern Bovis, Inc.; Haggerty Millwork Corp.; Vanguard Diversified, Inc.; Kevin Roche; Roche/Dinkerloo & Assoc.; and Bernard Lucchese/Haggerty Millwork Corp. v. Cord Contracting Co., Inc. and Cord Wall Construction Co., Inc. 333/91 Date of Settlement 1/27/94 New York Supreme

Pltf. Atty: Frank A. Composto of Composto & Longo, Brooklyn

This action settled for $2,200,000 during trial. Pltf., a 60-year- old carpenter, claimed that on 8/9/90 at 9:30 AM, he was working on a scaffold in the arms and armor room of the Metropolitan Museum of Art when he fell to the ground after the scaffold broke. Pltf. was employed by Third-party Deft. Cord. Roche-Dinkerloo & Assoc. and Lucchese, the architects and engineer, were dismissed. Summary judgment was granted against the City, the Metropolitan Museum of Art, Lehrer McGovern Bovis, and Haggerty Millwork Corp.

Injuries: closed head injury with subarachnoid hemorrhage, bilateral temporal lobe hematoma, loss of motor skills, and some intellectual deficits; thrombophlebitis. Pltf. claimed that he is unable to ambulate over long distances. Demonstrative evidence: anatomical charts; model of the brain. Specials: $128,000 for past expenses. Pltf. Experts: Dr. Alvin Greenberg, internist, Franklin Square; Dr. Alan Dietzek, vascular surgeon, Manhasset; Dr. David Biddle, neurologist, New Hyde Park; Dr. Conrad Berenson, Ph.D., economist, Woodbury; Edmond Provder, Ph.D., vocational rehabilitation, Manhattan. Settlement apportionment: the City, the Metropolitan Museum of Art, and Lehrer McGovern Bovis paid $240,000; Haggerty Millwork Corp. paid $75,000; Cord Contracting and Cord Wall Construction paid $1,885,000.

Massie and Shelley Washington v. Western Manufacturing Co., Inc. and James P. Dow & Associates, Inc./Western Manufacturing Co., Inc. v. City of Rochester/James P. Dow & Associates, Inc. v. City of Rochester

FRACTURED TIBIAL PLATEAU AND SUBSEQUENT RELATED FRACTURES

Employed by city

NY

$2,170,000 for Massie W.

$2,170,000.00

X/40-17 PRODUCT LIABILITY DIESEL FUEL USED TO CLEAN MACHINE RESULTS IN EXPLOSION FRACTURED TIBIAL PLATEAU AND SUBSEQUENT RELATED FRACTURES

Massie and Shelley Washington v. Western Manufacturing Co., Inc. and James P. Dow & Associates, Inc./Western Manufacturing Co., Inc. v. City of Rochester/James P. Dow & Associates, Inc. v. City of Rochester 11047/89 2-week trial Verdict 1/22/93 Donald J. Wisner, Monroe Supreme

VERDICT: $2,170,000 for Massie W. Breakdown: $70,000 for medical expenses; $150,000 for past lost earnings; $250,000 for past pain and suffering; $700,000 for future lost earnings; $1,000,000 for future pain and suffering. $345,000 for Shelley W. Breakdown: $90,000 for past loss of services; $255,000 for future loss of services. The case settled for $ 2,000,000 during the pendency of post-trial motions.

Pltf. Atty: A. Vincent Buzard, Rochester

Deft. Atty: Louis D’Amanda of Chamberlain, D’Amanda, Oppenheimer & Greenfield, Rochester, for James P. Dow

Michael A. Reddy of Bayer & Smith, Rochester, for Western Manufacturing

Michele DiGaetano, Asst. Corp. Counsel, Rochester, for City

Facts: Pltf., a 42-year-old asphalt raker employed by City, claimed on 12/9/86 that he was told by his foreman to pour diesel fuel into an asphalt recycling machine about 15 minutes after it was shut off. This resulted in an explosion, throwing Pltf. into the air. The asphalt recycling machine was manufactured by Deft. Western Manufacturing and distributed by Deft. James P. Dow. Pltf. claimed that Deft. James P. Dow instructed the City that diesel fuel should be used to clean the machine. Pltf.’s expert testified that the machine operated at a temperature of 800- 900?. He also testified that diesel fuel could ignite at 100? with a source of ignition, such as static electricity, at temperatures in excess of 490?. Pltf. contended that using diesel fuel to clean the machine was dangerous and defective and that a non-flammable solvent should have been recommended by Deft.

Deft. James P. Dow contended that the City had used diesel fuel in the past years on other equipment and understood the risks. City claimed that the distributor had provided them with the instructions on cleaning the machine with diesel fuel. Defts. argued that Pltf. was contributorily negligent in pouring the fuel into the machine while it was still hot.

Injuries: comminuted tibial plateau fracture. Pltf. later sustained a severe comminuted femur fracture of the same leg as a result of his prior knee injury. Approximately 1 year later, his femur was fractured again due to the stiffness of the knee. Pltf. was out of work for 2 years and returned for 6 months. Pltf.’s rehabilitative expert testified that his employment opportunities were severely limited. Pltf. Experts: Dr. Richard Andree, Ph.D., safety expert, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Thomas Kershner, Ph.D., economist; Saratoga Springs.

Earnest and Linda Adams v. New York State Thruway Authority

PERONEAL NERVE INJURY RESULTING IN FOOT DROP

Truck driver

Manhattan, NY

$2,164,778 (prior to adjustment for Article 50-b) to two principal Clmts.; $25,000 to spouse for loss of services.

$2,164,778.00

XI/15-26 DAMAGES TRIAL PERONEAL NERVE INJURY RESULTING IN FOOT DROP 45-YEAR-OLD TRUCK DRIVER DISABLED FROM ANY EMPLOYMENT

Earnest and Linda Adams v. New York State Thruway Authority Claim No. 77505 28-Page Decision Filed 9/8/93 Judge Albert A. Blinder, Court of Claims, Manhattan

DECISION: $2,164,778 (prior to adjustment for Article 50-b) to two principal Clmts.; $25,000 to spouse for loss of services. Breakdown: $450, 000 for past pain and suffering; $200,000 for future pain and suffering; $ 22,378 for medical expenses; $273,752 for past lost earnings; $1,218,648 for future lost earnings.

Clmt. Atty: Stanley M. Gewanter of Horenstein, Josepher & Gewanter, Manhattan

Deft. Atty: Richard L. Magro of Mead, Dore & Vout?, White Plains

Facts: This was a damages-only trial arising from an accident that occurred on the New York State Thruway. Deft. was found 100% negligent in the liability portion of this action which was previously determined in a decision filed 6/6/91. See, The New York Jury Verdict Reporter, Volume IX, Issue 2, Case 18.

On 9/25/86, Clmt., then age 45, was driving a tractor-trailer, which skidded out of control after coming into contact with a fuel spill on the roadway.

Injuries: foot drop resulting from peroneal nerve palsy; L5-S1 radiculopathy. A police officer assigned to the Emergency Medical Services unit testified that when the unit arrived at the scene at about 4: 15 AM, they found Clmt. pinned from the chest down by sheet metal from the cab of the truck. He testified that Clmt. was found “`hanging by his legs’ . . . in a precarious position.” Decision at p. 3. He described Clmt. as hysterical as he attempted to wriggle himself out from under the steel that was pinning him into the cab. The odor of diesel fuel made Clmt. and the officer fear fire, and this fear caused Clmt. to tell the officer to amputate his legs if that was necessary to get him out of the wreckage. He was finally extricated about 4 hours later by the “jaws of life.” He was taken to a hospital emergency room where he was found to have multiple contusions, peroneal nerve deficit in his right lower leg, and right anterior tibial compartment syndrome. He had no fractures. In the emergency room an anterior tibial compartment fasciotomy was performed . This procedure was designed to relieve pressure caused by bleeding into the muscle and fascia in the lower leg. A neurologist who examined Clmt. about 1 hour after the operation noticed that there was evidence of dysfunction of both the posterior tibial nerve of the right leg and the branch of the peroneal nerve.

Clmt. was discharged from the hospital about 10 days after the accident. After initially being treated as an out-patient, he was admitted to Helen Fuld Medical Center in Trenton, New Jersey for skin grafting and physical therapy. He came under the care of a physiatrist in November 1986, who testified that Clmt.’s injury to his deep peroneal nerve affected both motor and sensory functions. He testified that an EMG performed in November 1986 showed acute denervation potential of the tibialis anterior muscles and confirmed a deep peroneal nerve injury. Additionally, she found L5-S1 radiculopathy. Another EMG performed immediately prior to trial showed “mild improvement of the deep peroneal nerve palsy and no improvement in the lower back radiculopathy, which she [ the treating physiatrist] described as `chronic.’” Decision at p. 6. She testified that the injury resulted in a partial foot drop, and estimated that Clmt. had 30-40% of normal muscle strength in the lower right leg and foot with respect to motor functions. She also testified that Clmt. had not regained sensory functions in the damaged nerve. She testified that Clmt. could no longer return to his job as a truck driver, however, because he no longer had full control of his right foot, and his sensory deficit would prevent him from appreciating how hard he was pushing on the gas or brake pedals. On cross-examination, she conceded that the condition has improved between 1986 and 1992.

A neuropsychiatrist testified on Clmt.’s behalf that “claimant had a positive `Lasegue’s sign of sciatica radiculitis.’” Decision at p. 8. He also diagnosed a neurosis consisting of fears of falling, which had become generalized fears of ambulation of any type. He noted that Clmt. walked with a “`pendulum effect,’ swinging his right leg forward and landing on his heel in an attempt to compensate for the inability to raise the foot and to avoid stumbling over the dropped foot.” Decision at p. 9. Deft.’s neurologist testified that although he noted reduced sensory function of the nerve, Clmt. had intact motor functions.

Clmt., raised in a rural area of Mississippi, had no more than a ninth-grade education. An expert in rehabilitation counseling testified that Clmt. was unable to work as a tractor-trailer driver, that he was functionally illiterate, and that he had no skills that were transferable to other fields of work. Clmt. earned $29,200 in the last full calendar year prior to his accident, and had earned $28,500 by the date of the accident, which prorated to annual earnings of $38,742 for 1986. An economist estimated Clmt.’s past lost earnings and fringe benefits, minus expenses, amounted to $273,752. The economist estimated his future net losses at $904,152. These were flat projections, assuming no increase in wages over the future . The economist calculated his future damages with assumptions of 4% and 5% annual increases. The 4% annual increase, the one adopted by the court as the most reasonable, resulted in a projected future loss of $1,218,648. The court accepted these amounts in reaching its damages verdict. The court also awarded $450,000 in past and future pain and suffering, and $22, 378 in medical expenses. Clmt. Experts: Dr. Kaniza Banglawala, treating physiatrist; Dr. Richard D. Rubin, neuropsychiatrist; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Conrad Berenson, Ph.D., economist, Woodbury. Deft. Expert: Dr. Michael I. Weintraub, neurologist, Briarcliff Manor.

Sylwester and Ewa Szczepanic v. Wyndham Close Development Co., Inc.; Alfred J. Liverzani Construction Management, Inc. v. Motz Master Builders, Inc.

FRACTURED VERTEBRAE, SEXUAL DYSFUNCTION, AND POST-TRAUMATIC STRESS DISORDER

laborer for Motz Master Builders

Kings, NY

This action settled before trial for $2,100,000, plus the waiver of a $ 518,000 Workers’ Compensation lien.

$2,100,000.00

XVI/12-39 LABOR LAW WORKER FALLS WHILE INSTALLING WINDOWS FRACTURED VERTEBRAE, SEXUAL DYSFUNCTION, AND POST-TRAUMATIC STRESS DISORDER

SETTLEMENT: Sylwester and Ewa Szczepanic v. Wyndham Close Development Co., Inc.; Alfred J. Liverzani Construction Management, Inc. v. Motz Master Builders, Inc. 12169/94 Date of Settlement 6/5/98 Kings Supreme

Pltf. Atty: Robert R. MacDonnell of Samuel J. Lurie, Manhattan

This action settled before trial for $2,100,000, plus the waiver of a $ 518,000 Workers’ Compensation lien. Pltf., a 35-year-old laborer employed by Third-party Deft. Motz Master Builders, claimed that he was injured on 12/17/93 when he fell from the second floor while installing windows. Pltf. was granted summary judgment against Defts. pursuant to Labor Law ? 240.

Injuries: fractured vertebrae at C5-6, C-6, and C-7 with spinal cord compression; quadriparesis; sexual dysfunction; post-traumatic stress disorder. Pltf. was hospitalized at Westchester Medical Center for 3 months following the accident, and for 2 months at the Rusk Institute. Pltf. requires a home health care attendant for some activities of daily living. He is not wheelchair bound. He can walk stairs, bathe and feed himself, and can use public transportation. He is able to walk for short periods of time. Pltf. claimed that he cannot return to work, and claimed that he will need care for the rest of his life.

Defts. would have argued that Pltf. made an excellent recovery and is independent in most activities of daily living. Defts. would have contended that Pltf. is capable of working, and argued that only minimal medical intervention will be necessary in the future. Settlement apportionment: $850,000 paid by Wyndham; $500,000 paid by Liverzani; $750, 000 and the Workers’ Compensation lien paid by Third-party Deft. Motz. Carriers: Merchant’s Mutual for Wyndham; Hartford for Liverzani; State Ins. Fund for Third-party Deft. Motz.

Pltf. Experts: Pltf. would have called Dr. Joseph Waltz, neurosurgeon, Bronx; Dr. Malcolm Reid, physical medicine and rehabilitation, Manhattan; Dr. Janusz Gorzynski, psychiatrist, Manhattan; Dr. Selwyn Freed, urologist, Bronx; Edmond Provder, vocational rehabilitation, Manhattan; Conrad Berenson, Ph.D., economist, Woodbury.

Deft. Experts: Deft. would have called Dr. Stephen Gilbert, neurologist, Brooklyn; Dr. Laurian Jacoby, physical medicine and rehabilitation, Brooklyn; Dr. Carl Barbera, orth. surg., Brooklyn; Dr. Arnold Merrian, psychologist, New Rochelle; James Pascuiti, vocational rehabilitation, Springfield, New Jersey

Beatrice Sellouk v. Allied Aviation Service Co. of New York and Antonelli Merriwether

HERNIATED LUMBAR DISC AND FACET JOINT HYPERTROPHY

Passenger service agent for American Airlines

New York, NY

$2,000,000 (5/1). Breakdown: $132,000 for past pain and suffering; $300,000 for past lost earnings; $46,000 for past household expenses; $488,000 for future pain and suffering?

$2,000,000.00

XII/37-1 AIRPORT ACCIDENT AIRLINE EMPLOYEE STRUCK BY LOADED LUGGAGE CART HERNIATED LUMBAR DISC AND FACET JOINT HYPERTROPHY

Beatrice Sellouk v. Allied Aviation Service Co. of New York and Antonelli Merriwether 17261/87 9-day trial Verdict 3/13/95 Judge Marilyn Shafer, New York Civil

VERDICT: $2,000,000 (5/1). Breakdown: $132,000 for past pain and suffering; $300,000 for past lost earnings; $46,000 for past household expenses; $488,000 for future pain and suffering; $714,000 for future lost earnings; $157,000 for future household expenses; $163,000 for future medical expenses. Jury: 5 male, 1 female.

Pltf. Atty: Louis F. Brush, Mineola

Deft. Atty: Kevin F. Cook of Mendes & Mount, Manhattan

Facts: Pltf., a 30-year-old passenger service agent for American Airlines at Kennedy Airport, claimed that on 4/5/85, she was struck in the back by a luggage cart pushed by a skycap, Deft. Merriwether, who was employed by Deft. Allied Aviation. Pltf. contended that the cart was fully loaded. A non-party witness, who was employed by another airline, testified that she saw the cart hit Pltf. Evidence indicated that a luggage cart is 5 feet long, 2?-3 feet wide and, when fully loaded, weighs between 280 and 480 lbs.

Deft. Merriwether denied that he was pushing the cart at the time. He contended that he was 2?-3 feet away from the cart and that Pltf. backed into it. He also contended that the cart was only partially loaded at the time. Pltf. argued that there were inconsistencies in a prior statement that Deft. Merriwether made about the occurrence of the incident and in statements he made to a process server.

Injuries: bulging annulus with herniation at L4-5; facet joint hypertrophy at L4-5,S1; arthritis. Pltf. claimed that she can no longer work as an airline passenger service agent. She was working as a clerk at the time of trial. Deft.’s experts contended that Pltf. had no work limitations and could return to her previous job. Deft.’s orthopedic surgeon testified that there were no objective findings of any injury. Demonstrative evidence: MRI; reports by vocational rehabilitative expert; prior written statement by Deft. Merriwether. Offer: $35,000; demand: $1, 500,000; amount asked of jury: $2,126,671. Jury deliberation: 7 hours. Carrier: Lloyds of London. Pltf. Experts: Dr. Benzion Benatar, treating orth. surg., Bellmore; Dr. Ernesto Capulong, treating physical and rehabilitative physician, Oceanside; Richard Schuster, Ph.D., vocational rehabilitation, Manhattan; Dr. Conrad Berenson, Ph.D., economist, Woodbury . Deft. Experts: Dr. Peter Godsick, orth. surg., Manhattan; Edmond Provder, vocational rehabilitation, Manhattan.

Manuel Bailon v. Stahl York Avenue Co., L.L.C.

TRAUMATIC BRAIN INJURY, HERNIATED DISC AND MEDIAL MENISCUS TEAR

Painter

New York

The parties negotiated a pretrial settlement. Stahl York Avenue’s primary insurer agreed to pay $1 million, and Stahl York Avenue’s excess insurer agreed to pay $1 million. Thus, the settlement totaled $2 million. The negotiations were mediated by Kenneth Grundstein, of National Arbitration and Mediation Inc.

$2,000,000

On March 26, 2015, plaintiff Manuel Bailon, 49, a painter, worked at an apartment building that was located at 415 E. 64th St., in Manhattan. During the course of his work, he fell off of a closed A-frame ladder that he had leaned onto a stairwell’s wall. He landed on the stairway, and he claimed that he suffered injuries of his back, a knee, his neck and a shoulder.

Bailon sued the premises’ owner, Stahl York Avenue Co., LLC. He alleged that Stahl York Avenue negligently failed to provide a safe workplace. He further alleged that the company’s negligence constituted a violation of the New York State Labor Law.

Bailon claimed that the ladder was a necessary means of reaching the upper portion of the stairwell’s wall, but that it could not have been opened and properly deployed within the confines of the stairwell. Bailon’s counsel contended that the accident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Bailon was not provided the proper, safe equipment that is a requirement of the statute.

Defense counsel claimed that Bailon had been provided poles that would have extended the reach of his painting tools and therefore eliminated a need for the ladder. Defense counsel also claimed that Bailon had been told that the ladder was not to be used.

Julio Gomez v. 56th and Park (NY) Owner, LLC and Lend Lease (US) Construction LMB Inc.

SHOULDER AND ELBOW INJURIES

Laborer

Bronx, New York

The parties negotiated a pretrial settlement. The defendants’ insurer agreed to pay $2 million, from a policy that provided a substantially greater amount of coverage. The negotiations were mediated by Robert Adams, of National Arbitration and Mediation Inc.

$2,000,000

On April 24, 2013, plaintiff Julio Gomez, a laborer in his late 30s, worked at a construction site that was located at 432 Park Ave., in Manhattan. Gomez was struck by lumber that had fallen out of a hoist while being lowered from an overhead location. He claimed that he suffered injuries of a shoulder.

Gomez sued the construction project’s general contractor, Lend Lease (US) Construction LMB Inc., and the premises’ owner, 56th and Park (NY) Owner, LLC. The lawsuit alleged that the defendants negligently failed to provide a safe workplace. The lawsuit further alleged that the defendants’ failure constituted a violation of the New York State Labor Law.

Gomez claimed that the accident was a result of the hoisted load having not been properly secured. He also claimed that the work site’s supervisor should have ensured that workers did not enter the area below the hoist.

Plaintiff’s counsel contended that the accident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Gomez was not provided the proper, safe equipment that is a requirement of the statute.

James Cicchetti and Beth Cicchetti v. 56th and Park (NY) Owner, LLC, 56th and Park (NY) Holdings, LLC, Lend Lease (US) Construction Inc., Macklowe Construction, LLC, Macklowe

ARM, KNEE AND HEEL INJURIES

Caulker

New York

The parties negotiated a pretrial settlement. The defendants’ insurer agreed to pay $765,000. The settlement also included a waiver of the workers’ compensation lien. The negotiations were mediated by Kenneth Grundstein, of National Arbitration and Mediation Inc.

$765,000

On April 5, 2014, plaintiff James Cicchetti, 46, a union-affiliated caulker, worked at a construction site that was located at 432 Park Ave., in Manhattan. During the course of Cicchetti’s work, he fell off of an 8-foot-tall A-frame ladder. He landed on a cement floor, and he claimed that he sustained injuries of his arms, a knee and a heel.

Cicchetti sued the premises’ owner, 56th and Park (NY) Owner, LLC, which was one of the construction roject’s developers; a related entity, 56th and Park (NY) Holdings, LLC; some of the project’s developers, CIM Group, Macklowe Properties Inc. and Macklowe Construction, LLC; and the project’s general manager, Lend Lease (US) Construction Inc. Cicchetti alleged that the defendants violated the New York State Labor Law.

Cicchetti claimed that the accident occurred while he was descending the ladder. He claimed that the ladder shifted beneath his feet. Cicchetti’s safety expert inspected the ladder, and he submitted a report in which he opined that the ladder was unstable and defective.

Cicchetti also claimed that wet conditions contributed to the accident. He claimed that water had been allowed to pool in the area in which he was working, that his boot soles had retained some of the water, and that the water was tracked onto the ladder’s steps.

Cicchetti’s counsel contended that the defendants violated New York Codes, Rules, and Regulations title 23, part 1.21, which addresses the safety of ladders used in a workplace. Cicchetti’s counsel further contended that the violation established that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law § 241(6).

Defense counsel contended that the ladder and the work area were safe. He contended that the accident was a result of Cicchetti’s failure to exercise due caution.

Walter Carrick v. State of New York

MASSIVE INJURIES INCLUDING HEAD TRAUMA AND EXTENSIVE FRACTURES

NY

$5,160,157, reduced to $1,806,055 for 65% comparative negligence of Clmt.

$1,806,055.00

XIII/28-23 MOTOR VEHICLE DAMAGES TRIAL MASSIVE INJURIES INCLUDING HEAD TRAUMA AND EXTENSIVE FRACTURES SEAT BELT DEFENSE

Walter Carrick v. State of New York Claim No. 78204 12-Page Decision Filed 12/13/95 Judge Albert A. Blinder, Court of Claims, Manhattan

DECISION: $5,160,157, reduced to $1,806,055 for 65% comparative negligence of Clmt. Breakdown: $1,500,000 for past pain and suffering; $1, 500,000 for future pain and suffering; $98,084 for past medical expenses; $ 63,500 for future medical expenses; $227,530 for past lost earnings; $1, 982,546 for future lost earnings. The court deducted $198,255 for Clmt.’s failure to mitigate damages, and $13,248 for collateral source payments.

Clmt. Atty: Edwin N. Weidman of Richard J. Katz, Manhattan

Deft. Atty: Kenneth F. Keutmann, Asst. Atty. General

Facts: On 4/23/87, Clmt., then age 27, was involved in a serious accident, for which the State of New York was previously found 35% liable. This trial concerned damages only.

Injuries: closed head trauma resulting in various central nervous system problems; 27 fractures including multiple facial fractures and the loss of nine teeth, multiple fractures of the right hand and wrist, fractured right ankle, left foot, and vertebra. Clmt. was hospitalized for 2 months and was on a ventilator for much of that time. The head trauma, although leaving his gross intellectual powers intact, impaired his memory and concentration to a degree that he can no longer hold employment or pursue hobbies such as reading, music, or athletic activities. He suffered double vision and has leg shortening of 1 inch on one side. His vocal cords were injured as a result of being on a ventilator for a long period of time, leaving him with a hoarse voice that is abnormally low in volume. He faces dental implant procedures that will require 2 years to complete and are necessary to permit Clmt. to eat normally. He also suffered the loss of physical strength and normal movement in the right arm and hand.

Clmt. testified that he averaged approximately $400 per week as a salaried employee. The court, however, based its projections for future lost earnings on statistical earnings of other white males with Clmt.’s education (he left high school in his senior year). The court reduced his earnings, based on evidence that Clmt. had failed to attempt to mitigate damages by seeking employment rehabilitation. Based on testimony of Clmt. ‘s vocational rehabilitation therapist, the court found that Clmt.’s potential was limited, and reduced that element of damages by only 10%. It was conceded that Clmt. was not wearing a seat belt at the time of the accident. Judge Blinder found, however, that he would not reduce damages based on that factor. Both experts testified that a seat belt will not prevent injury if the integrity of the passenger compartment is so compromised that portions of the damaged vehicle, or any outside object, come into contact with, crush, or pierce the bodies of the occupants. Clmt. Experts: John Moore, seat belt expert, Albany; Dr. Conrad Berenson, Ph.D., economist, Woodbury; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Dr. James Pugh, seat belt expert, Inter-City Testing, Mineola; Dr. Morris Ehrenreich, vocational rehabilitation, Manhattan.

Troy Fairbanks v. RJ Realty v. Kuno Steel Products Corp.

MULTIPLE INJURIES TO IRONWORKER

Ironworker

Nassau, NY

$750,000 settlement, plus a waiver of a Workers’ Compensation lien of about $60,000

$750,000.00

VII/42-36 CONSTRUCTION ACCIDENT – SUMMARY JUDGEMENT ON LIABILITY – MULTIPLE INJURIES TO IRONWORKER

SETTLEMENT: Troy Fairbanks v. RJ Realty v. Kuno Steel Products Corp. 24280/81 Date of Settlement 4/9/90 Nassau Supreme

Pltf. Atty: Martin Block of Sanders, Sanders & Block, Mineola

This $750,000 settlement, plus a waiver of a Workers’ Compensation lien of about $60,000, was for an ironworker who was injured at a construction site at 400 Old Country Rd. in Hicksville on 9/5/86. The 24- year-old Pltf. was working on an elevated beam, part of a roof structure that was being lifted by a crane, when a cable being used to lift the roof snapped and struck him. Pltf. fell about 15 feet to the concrete floor. It was not clear whether he fell because he was struck by the cable or whether the roof itself collapsed. Pltf. argued that Deft. was negligent under Labor Law ? 240(1). Summary judgment was granted on this issue before the action settled. At issue during trial was the extent of Pltf. ‘s disability and the amount of his future lost earnings.

Injuries: fracture of the right calcaneus; radial tear of the left lateral meniscus and tear of the medial collateral ligament of the left knee requiring meniscectomy; impingement syndrome of the left shoulder requiring surgery; bursitis in the left shoulder; fractured nose; several fractured teeth; temporomandibular joint syndrome; post-concussion syndrome. Pltf. never returned to work. His experts would have testified that Pltf. can never work as an ironworker again and that he can hold only lower-paying jobs. Deft.’s expert would have testified that Pltf. could obtain a job at equal or higher pay. Pltf. Experts: Edmond Provder, rehabilitation expert, Manhattan, and Albert Levenson, economist, Woodmere, would have testified for Pltf. Deft. Expert: Dr. Morris Ehrenreich, rehabilitation expert, Manhattan, would have testified for Deft.

Robert Yade v. Northeast Leasing Corp. and Agrexco-Carmel Corp.

HERNIATED DISC

Truck driver

New York, NY

Pltf.’s verdict on liability (6/0). Subsequently settled for a structured settlement totalling $1,800,000 over 25 years, providing for ten flat payments plus monthly payments increasing 3% per year.

$1,800,000.00

III/12-40U MOTOR VEHICLE – PEDESTRIAN – HERNIATED DISC

Robert Yade v. Northeast Leasing Corp. and Agrexco-Carmel Corp. 1214/86 5-day trial Verdict 6/1/88 Judge Peter C. Patsalos, Orange Supreme

VERDICT: Pltf.’s verdict on liability (6/0). Subsequently settled for a structured settlement totalling over 25 years, providing for ten flat payments plus monthly payments increasing 3% per year.

Pltf. Atty: John J. Basso of Moran, Spiegel, Pergament & Brown, Poughkeepsie

Deft. Atty: Benjamin E. Selig of Hurley, Fox, Selig & Kelleher, Stony Point

Facts: Pltf., a 40-year-old truck driver, was the victim of a hit and run by Deft.’s employee. Pltf.’s truck had been involved in a fender bender with Deft.’s truck on the Van Wyck Expy. on 2/7/83. Pltf. got out of his truck and approached Deft. to exchange information. When asked for information, Deft.’s driver suddenly pulled away, clipping Pltf.

Deft. denied ownership of the truck. Even if it was their truck, Deft. argued, Pltf. had been negligent for stopping to exchange information on the busy roadway. Pltf. had tried to pursue the truck and did get a license number. Pltf. also received a missing record charge as the driver’s log for that particular truck had disappeared.

Injuries: herniated disc at L4-5; bulging disc at L3-4; laminectomy and one additional surgery; numbness; drop foot. Pltf. cannot perform any physical activity for more than 15 minutes. Pltf.’s back injury left him totally disabled, and his economist projected lost earnings of $1.25 million over 26 years. Lost wages were estimated at $159,000 and medical costs at $30,000. Pltf. did briefly attempt to return to work. Pltf. faces the choice of undergoing a third corrective surgery, but with a 30% risk of paralysis. Jury deliberation: 30 minutes. Demonstrative evidence: aerial photographs (to show the proximity of Deft.’s garage to the Van Wyck Expy.), blowups of motor vehicle abstracts, a physician’s videotaped EBT testimony. Note: prior to settlement, Pltf. circulated a professionally produced videotaped settlement brochure of expert testimony of the rehabilitation expert, the economist, and the psychologist. Pltf. Experts: Andrew Weintraub, economist, Temple Univ.; Edmond Provder, rehabilitation specialist; Dr. John Handago, primary treating physician, Goshen; Dr. Sheldon Krems, Ph.D., psychiatrist. No defense experts.

Jaroslaw and Maglorzata Czekaj v. Irene Rodgers and Rita Piscopo v. 318 West 51st St. Hotel Corp. 4304/96

FRACTURED TIBIA AND FIBULA

Laborer

Kings, NY

This Labor Law case settled at opening statements for $750,000, plus the waiver of a Workers’ Compensation lien of $58,000.

$58,000.

XVI/19-43 LABOR LAW FALL FROM DEFECTIVE LADDER FRACTURED TIBIA AND FIBULA

SETTLEMENT: Jaroslaw and Maglorzata Czekaj v. Irene Rodgers and Rita Piscopo v. 318 West 51st St. Hotel Corp. 4304/96 Date of Settlement 9/17/98 Kings Supreme

Pltf. Atty: Robert R. MacDonnell of Samuel J. Lurie, Manhattan

This Labor Law case settled at opening statements for $750,000, plus the waiver of a Workers’ Compensation lien of $58,000. On 11/16/95, Pltf., a 40-year-old laborer, fell from a defective ladder while attempting to install a sheetrock ceiling at the Washington Jefferson Hotel on West 51st St. in Manhattan.

Injuries: pylon fracture of the right tibia and fibula, requiring an external fixator, which was worn for 3 months. Pltf. has not returned to work. He has, however, completed over 100 college credits. Pltf.’s medical expert would have testified that Pltf. will require an ankle fusion in the future. Deft.’s medical expert would have disputed the need for fusion surgery, and would have argued that Pltf. is only mildly disabled and is capable of working. Settlement apportionment: $500,000 paid by Rodgers and Piscopo; $250,000, plus waiver of Workers’ Compensation lien, paid by Third-party Deft. Carriers: U.S. Liability for Rodgers and Piscopo; State Insurance Fund for Third-party Deft.

Pltf. Expert: Pltf. would have called Dr. Jonathan Korn, orth. surg., Manhattan.

Deft. Experts: Deft. would have called Dr. Murray Burton, orth. surg., Manhattan; Edmond Provder, vocational rehabilitation, Manhattan.

Kevin and Judy Oleaga v. City of New York

BIMALLEOLAR ANKLE FRACTURE

Sanitation worker

Queens, NY

This action settled on 8/2/00, prior to jury selection, for $750,000

$750,000.00

XVIII/12-49 WORK ACCIDENT GARBAGE TRUCK STRIKES TREE BRANCH WHICH THEN HITS SANITATION WORKER BIMALLEOLAR ANKLE FRACTURE

SETTLEMENT: Kevin and Judy Oleaga v. City of New York 6209/93 Date of Settlement 8/2/00 Queens Supreme

Pltf. Atty: Daniel P. O Toole of Block & Associates, Manhattan

Deft. Atty: Barbara McLean, Asst. Corp. Counsel

This action settled on 8/2/00, prior to jury selection, for $750,000, all for pain and suffering, and under the terms of the settlement Pltf. s lifetime pension and disability benefits will remain in full force without reduction and with no liens to be paid. Pltf., a 38-year-old sanitation worker, claimed that on 5/4/92 while working on Shiloh Ave. in Queens he was injured when his partner driving the garbage truck hit a tree branch which fell on his ankle. Pltf. also claimed that the City Parks Dept. had inspected the tree on 7/20/90 and noted that it was in need of pruning for low branches. Pltf. s experts were prepared to testify that the standard clearance for roadways is 14 feet and that the branch height at the point of impact was 8.5 to 11 feet. Deft. maintained that the tree was not a priority for correction.

Neighboring landowners, dismissed from the case via summary judgment, were prepared to testify that they had called the Parks Dept. prior to the accident and alerted it about the low branches. A Freedom of Information Law demand and discovery demands served upon the City failed to confirm these alleged prior complaints.

Injuries: bimalleolar fracture of the right ankle requiring open reduction and internal fixation. Pltf. claimed that he is permanently disabled and he retired from the Sanitation Dept. Demonstrative evidence: photographs of the tree after the limb fell.

Pltf. Experts: Dr. Ronald Light, orth. surg., New Hyde Park; Walter Nestler, landscape architect, New Rochelle; Joseph Champagne, P.E., engineer, New Rochelle; Al Mickens, Ph.D., economist, Manhattan.

Deft. Expert: Edmond A. Provder, vocational rehabilitation, Manhattan.

Cheryl Reid, indiv. and as m/n/g of Robert Reid II v. County of Nassau and Dr. Catherine Goring

CHILDBIRTH – SHOULDER DYSTOCIA CAUSES ERB’S PALSY AND BRACHIAL PLEXUS INJURY

Nassau, NY

$3,020,000 (6/0).

$3,020,000.00

X/12-1 MEDICAL MALPRACTICE CHILDBIRTH SHOULDER DYSTOCIA CAUSES ERB’S PALSY AND BRACHIAL PLEXUS INJURY

Cheryl Reid, indiv. and as m/n/g of Robert Reid II v. County of Nassau and Dr. Catherine Goring 984/91 10-day trial Verdict 9/8/92 Judge James Brucia, Nassau Supreme

VERDICT: $3,020,000 (6/0). Breakdown: $20,000 for past pain and suffering; $2,000,000 for future pain and suffering; $1,000,000 for diminution of future earnings. Post-trial motions were denied. Jury: 2 male, 4 female.

Pltf. Atty: Stanley A. Landers, Kew Gardens

Deft. Atty: Clifford A. Bartlett of Bartlett, McDonough & Monahan, Garden City

Facts: On 9/19/90, Pltf., age 37, went into labor with her fourth child at Nassau County Medical Center. The infant’s head crowned, but his right shoulder became caught on Pltf.’s pelvic bone. Deft. Dr. Goring, a fourth-year resident who was handling the delivery, applied lateral traction to release the shoulder. Pltf. contended that Deft. used excessive force, resulting in a brachial plexus injury and Erb’s palsy.

Pltf. contended that Defts. should have known that she was predisposed to shoulder dystocia, given her history of high birth weight babies. Her third child weighed 9 lbs. at birth, and Pltf. claimed that Defts. knew that this child would weigh more than 9 lbs. Pltf.’s expert contended that the probability of shoulder dystocia increases after repeated deliveries of large babies.

Pltf.’s obstetrical expert contended that the delivery was mismanaged . He testified that after the infant’s head appeared and Pltf. was fully dilated, pressure should have been applied to her abdomen. He contended that the child’s head should not have been touched. Pltf.’s examining pediatric neurologist testified that the infant’s injuries resulted from excessive lateral force to his head.

Pltf.’s vocational rehabilitation expert testified that the child would have a diminution of earnings of approximately $3,000 per year for life. Pltf.’s economist testified that the child’s loss of earnings over the course of his working life was approximately $1,700,000.

Deft.’s obstetrician testified that Erb’s palsy can occur without malpractice, and that such an injury does not immediately indicate negligence. He contended that Defts.’ care was proper. Deft.’s pediatric neurologist conceded that the injury was permanent. Offer: $200,000; demand: $1,100,000; amount asked of jury: $5,700,000. Jury deliberation: 4 hours. Pltf. Experts: Dr. George Farmakides, ob-gyn, Mineola; Dr. Barbara Stewart, examining pediatric neurologist, Forest Hills; Edmond Provder, vocational rehabilitation expert; Dr. Seymour Barcun, Ph.D., economist, Edison, New Jersey. Deft. Experts: Dr. Richard Hausknecht, ob- gyn, Manhattan; Dr. Robert Gould, pediatric neurologist, Great Neck.

Nicholas Tsetsakos and Beddy Montalvo v. Terrell Bonaparte and Kings Ready Mix, Inc., No. 2729/09

CAR CRASH

Kings Supreme, NY

The parties negotiated a pretrial settlement, which was established via the guidance of mediator Michael McAllister. The defendants’ insurers agreed to pay a total of $3.1 million.

$3,100,000.00

Judge: Michael McAllister

Date: 08-10-2010

PLAINTIFF(S)

• Eric R. Bernstein; Law Offices of Eric R. Bernstein; New York, NY, for Nicholas Tsetsakos, Beddy Montalvo

• Edmond Provder C.R.C.; Vocational Rehabilitation; Hackensack, NJ called by: Eric Bernstein
• Mark McMahon M.D.; Orthopedic Surgery; New York, NY called by: Eric Bernstein
• Alan Leiken Ph.D.; Lost Earnings (Economics); Stony Brook, NY called by: Eric Bernstein

DEFENDANT(S)

• Gregory D.V. Holmes; Robin, Harris, King & Fodera; New York, NY, for Terrell Bonaparte, Kings Ready Mix Inc.

• None

• Liberty Mutual Insurance Co. for both defendants (primary)
• Everest Indemnity Insurance Co. for both defendants (excess)

On Jan. 19, 2009, plaintiff Nicholas Tsetsakos, 29, an ironworker, was driving on the eastbound side of Metropolitan Avenue, near its intersection at Leonard Street, in Brooklyn. His vehicle collided with an oncoming cement truck that was being driven by Terrell Bonaparte, who had crossed Metropolitan Avenue’s double yellow center line. Tsetsakos sustained injuries of his legs.

Tsetsakos sued Bonaparte and his truck’s owner, Kings Ready Mix Inc. Tsetsakos alleged that Bonaparte was negligent in the operation of his vehicle. Tsetsakos further alleged that Kings Ready Mix was vicariously liable for Bonaparte’s actions.

Tsetsakos claimed that there was light rain on the date of the accident and that Bonaparte failed to account for the hazardous conditions.

Bonaparte contended that the collision occurred during light snow. He claimed that Tsetsakos was speeding and that Tsetsakos might have driven through a red traffic signal. Bonaparte did admit that when his truck started to slide, he turned the steering wheel to the left to avoid rear-ending the vehicle in front of him.

Tsetsakos’ counsel moved for summary judgment of liability, and the motion was granted. The matter proceeded to damages.

Tsetsakos sustained fractures of his left leg’s tibia and fibula, fractures of the toes of his right foot, and a bimalleolar fracture–a fracture of both sides of the ankle’s malleolus, which is the ankle’s bony protuberance. The latter injury affected his right ankle. He also sustained a Lisfranc’s fracture of his right foot. A Lisfranc’s fracture involves the fracture and dislocation of the joints in the mid foot.

Tsetsakos underwent open reduction and internal fixation and had plates, screws and wires placed in his right foot and plates, screws and an intermedullary rod in his left leg. After recovery from his surgeries, he underwent physical therapy from April 2009 until December 2009. He never returned to work and though he was unable to walk for several months, he currently walks with a limp on his right side, which he deems permanent.

Tsetsakos’ expert orthopedic surgeon opined that Tsetsakos’ prognosis was poor and that he could not return to his prior profession and that potentially, he would require hardware removal for both his legs and a possible fusion of his right ankle or replacement in the future.

Tsetsakos’ occupational-rehabilitation-expert opined that Tsetsakos could work in the future but only at a light-duty sedentary job. The expert saw a diminution in earning potential of $30,000 to $35,000 for the rest of Tsetsakos’ life, whereas Tsetsakos earned $60,000 to $65,000 in the year prior to the accident. Tsetsakos’ expert economist opined that the potential damages Tsetsakos would suffer, assuming he could no longer work for the rest of his life, would be $6 million.

Tsetsakos sought recovery of his past and future lost earnings and damages for his past and future pain and suffering. His wife, Beddy Montalvo, sought recovery of damages for her loss of consortium.

The defense’s expert orthopedic surgeon agreed that Mr. Tsetsakos could not return to his prior profession.

Furia v. Reno v. SNH Construction

TRIMALLEOLAR ANKLE FRACTURE

Construction taper and spackler

Queens, NY

Directed verdict on liability. Reno 75%; SNH Construction 25% negligent. Settled during damages trial for $725,000.

$725,000.00

VI/3-38 CONSTRUCTION ACCIDENT – SCAFFOLD – APPORTIONMENT TRIAL – SETTLEMENT FOR TRIMALLEOLAR ANKLE FRACTURE

Furia v. Reno v. SNH Construction Verdict 3/87 Judge Sidney Leviss, Queens Supreme

VERDICT: Directed verdict on liability. Reno 75%; SNH Construction 25% negligent. Settled during damages trial for $725,000.

Pltf. Atty: Jeff Battan

Deft. Atty: Gregory J. Parisi of Hogan, Jones & Parisi, Manhattan, for Reno

Scott C. Watson of J.M. Furey & R.J. Furey, Hempstead, for SNH Construction

Facts: Pltf. was a 40-year-old construction taper and spackler at the time of the accident. He was employed by SNH Construction, a subcontractor for Reno, the general contractor. The work was being done on a private home. Pltf. was working on a scaffold when he fell 12 feet to the ground. Pltf. claimed that Defts. violated ?240 of the Labor Law. He contended that improper planks were used on the scaffold, allowing him to fall through.

A directed verdict was granted on the issue of liability. As there was no indemnification contract between the two Defts., the jury decided only the percentage contribution between them. At issue was which of the parties was responsible for placing the planks on the day in question.

Injuries: trimalleolar ankle fracture requiring several operations. Pltf. walks with a cane. He is unable to work at his old job. Pltf.’s expert economist estimated Pltf.’s lost earnings as a union taper/spackler at $848,000. No offer; demand: $750,000. Pltf. Experts: Dr. Robert Reiss, orth. surg., Huntington; Dr. Conrad Berenson, economist, Woodbury; Edmond Provder, rehabilitation specialist.

Estella Aliotta, Anthony Aliotta, and Paula Raspantini v. John A. Galinus and Eileen Sisco

DISC HERNIATIONS, ACROMIOCLAVICULAR JOINT ARTHROPATHY

Passaic County, NJ

The parties agreed to a $685,000 pre-trial settlement.

Aliotta received $500,000, and Raspantini received $185,000 from within a primary policy with Plymouth Rock Group of Cos. and an excess policy with American Automobile Association.

$685,000

On June 11, 2015, plaintiff Estella Aliotta, 47, a legal secretary, was driving a Volkswagen Jetta north on Ringwood Avenue, in Pompton Lakes. The front-seat passenger was plaintiff Paula Raspantini, 50, a substance-abuse counselor.

While they were heading north, a Honda compact sport utility vehicle was approaching from the south. The driver of the Honda, John Galinus, attempted a left turn into a parking lot and collided head-on with the Volkswagen. Aliotta claimed injuries to her neck, left shoulder, and left arm. Raspantini claimed injuries to her head, neck, spine, and left shoulder.

Aliotta and Raspantini sued Galinus, alleging he had been negligent. The Honda’s owner, Eileen Sisco, was also named as a defendant under theory of vicarious liability.

The plaintiffs maintained that Galinus had been traveling too quickly, had been inattentive, and miscalculated the distance between the vehicles prior to initiating the left turn.

Galinus and Sisco did not actively dispute liability.

Despina Papadakis v. City of New York

FRACTURED SHOULDER AND TORN ROTATOR CUFF

Cleaning woman

Bronx, NY

$680,000 (6/0). Breakdown: $150,000 for past pain and suffering; $250,000 for future pain and suffering; $126,000 for past lost earnings; $154,000 for future lost earnings. Jury: 3 male, 3 female.

$680,000.00

XII/17-5 FALLDOWN SIDEWALK FRACTURED SHOULDER AND TORN ROTATOR CUFF REMITTITUR

Despina Papadakis v. City of New York 14702 6-day trial Verdict 5/4/94 Post-trial decision 9/14/94 Judge Gerald Crispino, Bronx Supreme

VERDICT: $680,000 (6/0). Breakdown: $150,000 for past pain and suffering; $250,000 for future pain and suffering; $126,000 for past lost earnings; $154,000 for future lost earnings. Jury: 3 male, 3 female.

In a 9-page decision dated 9/14/94, Judge Crispino reduced the awards for past and future pain and suffering as excessive to $75,000 and $125, 000, respectively, for a total award of $480,000. See below.

Pltf. Atty: Steven Wildstein, Great Neck

Deft. Atty: Steven M. Koulish, Asst. Corp. Counsel

Facts: Pltf., a 59-year-old cleaning woman, testified that on 1/8/89 at 6:15 PM, she slipped on a raised section of sidewalk on the east side of Broadway between West 259th and West 260th Sts. in the Bronx. Pltf., who spoke Greek, testified through a translator. Pltf. contended that Deft. had actual notice of the defect and produced a witness from the Dept. of Transportation who testified that Deft. received actual written notice of the defect from the Big Apple Corp. on 9/8/88, 4 months before the accident. Deft. contended that Pltf., who lived a block from the site of the accident, should have known that the defect existed and should have seen it on the night in question because the sidewalk was illuminated by streetlights. Deft. argued that Pltf. was comparatively negligent for failing to watch where she was walking. The jury found that Pltf. was comparatively negligent, but found that her negligence was not a cause of her injury.

Injuries: fracture and dislocation of the left (nondominant) shoulder; tear of the left rotator cuff. Pltf. did not have surgery for the fractured shoulder, but did have an operation 1 year after the accident to repair the torn rotator cuff. She was out of work for 3 months. Pltf. testified that she worked intermittently for a year after the accident but eventually had to retire because of her injuries. She testified that she would have worked until age 69 if she had not been injured. Deft. argued that Pltf. would have been forced to retire much earlier than age 69 due to other illnesses, as noted in her extensive employment health records. Specials: $25,000 per year for 10 years for lost earnings. Offer: $50,000; demand: $200,000; amount asked of jury: $900,000. Jury deliberation: 5 hours. Pltf. Experts: Dr. Stephen Ringel, orth. surg., Bronx (moved to Texas by the time of trial); Edmond Provder, vocational rehabilitation, Manhattan. There was no expert testimony for Deft.

The City moved to set aside the verdicts, arguing that the jury’s finding of lack of proximate cause along with a finding of her comparative negligence was contrary to the weight of the evidence. Deft. also argued that the jury’s finding that Pltf. would have worked another 10 years, until age 69, was against the weight of the evidence. In his written post- trial decision, Judge Crispino found that because her retirement was precipitated by the accident, Pltf. is entitled to an award for lost earnings beyond the actual date that she retired, and he denied Deft.’s motion on that issue. He also noted that “the jury was properly instructed that negligence in the absence of proximate cause will not give rise to damages.” Decision at p. 6. The court did find, however, that the $150,000 award for past pain and suffering and the $250,000 award for future pain and suffering were excessive, and reduced them by half to $75, 000 and $125,000, respectively

Charles and Oscar Small v. Yonkers Contracting Co. v. Rice Mohawk

Charles and Oscar Small v. Yonkers Contracting Co. v. Rice Mohawk

Ironworker

Queens, NY

$635,000 (6/0).

$635,000.00

XV/13-12 LABOR LAW SCAFFOLD ACCIDENT HERNIATED DISC, ENCEPHALOPATHY, MULTIPLE LEG FRACTURES, AND PSYCHOLOGICAL INJURIES

Charles and Oscar Small v. Yonkers Contracting Co. v. Rice Mohawk 10301/93 6-day trial Verdict 7/1/97 Queens Supreme

Judge: Arthur W. Lonschein

Verdict: $635,000 (6/0). Breakdown: $100,000 for past pain and suffering; $180,000 for future pain and suffering; $100,000 for past lost earnings; $240,000 for future lost earnings; $15,000 for medical expenses.

After the verdict, the court awarded judgment over in favor of Yonkers Contracting and against Rice Mohawk for the full amount of the award on damages, under the contractual indemnity clause in the Rice Mohawk subcontract.

Pltf. Atty: Mario Biaggi, Jr. of Biaggi & Biaggi, Manhattan

Deft. Atty: Stephen M. Cohen of Brody & Fabiani, Manhattan, and Theodore H. Rosenblatt of Ayers & Thompson, Manhattan, for Yonkers Contracting

Mary L. Maloney of Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Manhattan, for Rice Mohawk

Facts: The accident occurred on 3/16/93. Pltf., a 35-year- old ironworker, was employed by Third-party Deft. Rice Mohawk and was working on the reconstruction of the I-495 viaduct when a protective shield that he was installing collapsed, causing him to fall 60 feet to the ground. Pltf. brought suit against Yonkers Contracting as the general contractor, and against the New York City Dept. of Transportation (NYCDOT) as the owner. On 8/18/95, the court awarded summary judgment on liability for Pltf. under Labor Law ?240 against Yonkers and the City of New York. Prior to the damages trial, the court vacated the judgment against NYCDOT and dismissed Pltf. s complaints and all cross-complaints against that Deft. This trial was on damages only.

Injuries: herniated discs at C5-6 and L5-S1; head trauma causing encephalopathy with neurological dysfunction and psychological injuries; fractured femur requiring open reduction and internal fixation; fractured tibia and fibula; fractured toe. Pltf. claimed that his injuries have prevented him from working except in some sedentary jobs. His economist testified that Pltf. has lost earnings and lost fringe benefits of over $4,000,000. Deft. contended that Pltf. has recovered and is able to work as an ironworker. Offer: $1,000,000; demand: $5,000,000; amount asked of jury: $14,700,000. Jury deliberation: 1? hours. Carrier: Admiral Insurance.

Pltf. Experts: Dr. John Vallely, orth. surg., Brooklyn; Dr. Irving Friedman, neurologist, Brooklyn; Dr. Lawrence Shields, neurologist, Brooklyn; Jan Burte, psychologist, Ph.D.; Edmond Provder, vocational rehabilitation, Manhattan; Conrad Berenson, Ph.D., economist, Woodbury.

Deft. Experts: Dr. Robert Richman, orth. surg., Manhattan; Dr. Ralph Olson, neurosurgeon, Manhattan.

Anthony D Agostino v. Richard Paty, Jr. and Richard Paty, Sr.

DISLOCATION FRACTURE OF THE CERVICAL SPINE

Landscaper

Suffolk, NY

$610,164, plus interest (5/1).

$610,164.00

XIV/47-15 MOTOR VEHICLE PASSENGER DISLOCATION FRACTURE OF THE CERVICAL SPINE SUMMARY JUDGMENT ON LIABILITY

Anthony D Agostino v. Richard Paty, Jr. and Richard Paty, Sr. 23607/93 8-day trial Verdict 4/16/97 Judge Peter Fox Cohalan, Suffolk Supreme

VERDICT: $610,164, plus interest (5/1). Breakdown: $325,000 for past pain and suffering; $42,745 for past medical expenses; $51, 384 for past lost earnings; $175,000 for future pain and suffering; $ 16,035 for future lost earnings. Jury: 4 male, 2 female.

Pltf. Atty: Michael Carner of Sarisohn, Sarisohn, Carner, LeBow, Braun & Castrovinci, Commack

Deft. Atty: Marcy D. Sheinwold of Lewis, Johs, Avallone, Aviles & Kaufman, Melville

Facts: Pltf., a 38-year-old landscaper, testified that on 8/30/93 shortly after 12 AM he was a passenger in a car driven by Deft. Paty, Jr. He claimed that they were traveling on Harned Rd. in Commack when the car suddenly left the road and hit a tree and utility pole. Pltf. was granted summary judgment on liability in September 1995 and this trial was on damages only.

Injuries: hangman s fracture dislocation at C2-3 ultimately resulting in a spontaneous spinal fusion at C1, 2, and 3. He wore a halo brace for 10 weeks. Pltf. claimed that he has severe permanent restriction of motion in the neck. He received physical therapy and acupuncture treatment. Pltf. testified that he cannot return to work as a landscaper and that he cannot perform sedentary work. He also testified that he has not driven a car since the accident. Pltf. s economist testified that his future lost earnings would be approximately $750,000. Deft. denied that there was a spinal fusion at C1-2 and contended that the restriction of motion was not as severe as Pltf. claimed. Deft. contended that Pltf. only had a mild to moderate disability, and that he was employable in a variety of sedentary jobs.

Demonstrative evidence: X-rays; 3-D CAT scan reconstruction; MRI films; hospital records; physical therapy and acupuncture records; model and computer-generated diagrams of the spine. Specials: $42, 745 for medical expenses; $51,384 for lost earnings. Final offer: $ 750,000; demand: $950,000. Jury deliberation: 4 hours. Carrier: Allstate. Pltf. Experts: Dr. Allen Zippin, neurosurgeon, Smithtown; Edmond Provder, vocational rehabilitation, Manhattan; Alan Leiken, Ph.D., economist, Stony Brook. Deft. Experts: Dr. James Sarno, neurosurgeon, Hempstead; Morris Ehrenreich, Ph.D., vocational rehabilitation, Manhattan; Dr. John Killian, orth. surg., Hempstead.

Robert Ryan v. Cedar Grove Cemetery Association; and Gasoline Installations, Inc. v. Malbro, Inc.

MULTIPLE FRACTURES

Laborer

Queens, NY

This action settled for $2,800,000.

$2,800,000.00

XVII/25-47 LABOR LAW EXCAVATION SITE CAVES IN MULTIPLE FRACTURES TRANSECTED URETHRA RETROPERITONEAL HEMATOMA

SETTLEMENT: Robert Ryan v. Cedar Grove Cemetery Association; and Gasoline Installations, Inc. v. Malbro, Inc. 7534/95 Date of Settlement 10/28/99 Queens Supreme

Pltf. Atty: Walter Beck of Beck & Iannuzzi, Brooklyn

This action settled for $2,800,000. At 12 PM on 3/1/94, Pltf., age 46 at the time of trial, was employed as a laborer by Third-party Deft. and was working at the Cedar Grove Cemetery on 63rd Rd. in Queens. Deft. Gasoline Installations was the general contractor for the job. Pltf. was standing in an approximately 12-foot-deep excavation and was installing underground gasoline tanks when the sides of the excavation caved in and crushed him.

Pltf. claimed that Defts. Cedar Grove (the owner of the cemetery) and Gasoline Installations were statutorily liable pursuant to Labor Law ?241( 6) and Rule 23-4 of the Industrial Code, which require that an excavation in excess of 3 feet in depth be shored and sheeted to prevent cave-ins.

Pltf. was granted summary judgment against Defts. Although summary judgment against Third-party Deft. was never granted by the Court, it was conceded that since Third-party Deft. was in total control of the job, liability would be passed through to Deft. Malbro.

Injuries: fractured pelvis and lower left leg; transected urethra; retroperitoneal hematoma with traumatic erectile dysfunction. Pltf. claimed that as a result of his injuries, he is incapable of gainful employment. A projected $750,000 in lost earnings (present value) was included in the settlement amount. Carrier: Hanover.

Pltf. Experts: Dr. Edmond Provder, vocational rehabilitation, Manhattan; Seymour Barcun, Ph.D., economist, Metuchen, New Jersey; Domingo Isasi, P.E., engineer, Norwalk, Connecticut; John Garretto, engineer, Rockville Centre.

Deft. Expert: Howard Edelson, safety, Plainview.

Anthony and Madeline Ciervo v. City of New York

TORN MENISCUS

Sanitation worker

Queens, NY

$721,881 for Anthony C., reduced to $599,161.23 for 17% comparative negligence of Pltf. (6/0).

$599,161.23

XV/38-15 FALLDOWN FAILURE TO REPAIR DEFECTIVE SIDEWALK BIG APPLE POTHOLE MAP NOTICE TORN MENISCUS RETRIAL ON DAMAGES

Anthony and Madeline Ciervo v. City of New York 4633/93 5-day trial Verdict 1/30/98 Queens Supreme

Judge: Allan Weiss

Verdict: $721,881 for Anthony C., reduced to $599,161.23 for 17% comparative negligence of Pltf. (6/0). Breakdown: $200,000 for past pain and suffering; $264,376 for past lost earnings; $41,000 for past medical expenses; $100,000 for future pain and suffering; $66, 510 for future lost earnings; $35,000 for future medical expenses; $8, 995 for future custodial care; $6,000 for future rehabilitative treatment.

$50,000 for Madeline C. for loss of services, reduced to $ 41,500 for 17% comparative negligence of Pltf. Jury: 2 male, 4 female.

This case was originally tried in November 1995. In that trial, the jury found Deft. 83% at fault for the accident. Deft. s motion to set aside the verdict under the commonlaw firefighter s rule was granted, and an appeal was filed by Pltf. The Appellate Division, Second Department reversed the decision on 6/30/97 and the case was retried on damages only. Ciervo v. City of New York, 637 N.Y.S.2d 918.

After a collateral source hearing, the damages were further reduced to $409,552 as follows: $39,321 for past lost earnings ( reduced from $264,376); $12,899 for past medical expenses (reduced from $41,000); $24,208 for future lost earnings (reduced from $66,510 ); $22,124 for future medical expenses (reduced from $35,000); $5,000 for future custodial care (reduced from $8,995).

Pltf. Atty: Alan C. Kestenbaum of Weil & Kestenbaum, Bayside

Deft. Atty: Kwok Lai Mui and Marc S. Andes, Assts. Corp. Counsel, on liability and damages, respectively

Facts: Pltf., a 43-year-old sanitation worker, claimed that on 7/14/92 he was injured while taking garbage to a truck in Ozone Park. Pltf. claimed that he had stepped in a hole on the sidewalk, causing him to trip and fall. He testified that Deft. had notice of the defect in a Big Apple Pothole Map and failed to repair it. Deft. denied that it had prior notice of a hole in the sidewalk. Deft. contended that the Big Apple Pothole Map indicated that there was a raised sidewalk at that location. In the first trial, Deft. s motion to extend the firefighter s rule, to sanitation employees was granted and the judge dismissed the complaint. Pltf. filed an appeal and the decision was reversed unanimously by the Appellate Division Second Department.

Injuries: torn meniscus of the left knee. Pltf. required arthroscopic surgery in October 1992 and a total knee replacement in 1997. He underwent 6 months of physical therapy. Pltf. claimed that he was permanently disabled and could not return to work. Deft. argued that Pltf. had undergone knee surgeries in 1980 and 1986 and that the injury resulted from the prior surgeries.

Demonstrative evidence: medical records of 1992 and 1997; Department of Sanitation medical records. Initial offer: $90,000; initial demand: $350,000. Jury deliberation: 3 hours.

Pltf. Experts: Dr. Raymond Shebairo, orth. surg., New Hyde Park; Edmond Provder, vocational rehabilitation, Manhattan; Seymour Barcun, Ph.D., economist, New Jersey.

Deft. Expert: There was no expert testimony for Deft.

Pezzullo v. Raymond and Arlene Rumbowski; Rohan Swimming Pool Center; George Rohan

SUCCESSOR CORPORATION ISSUE

Correction facility guard

NY

This was a structured settlement, made before jury selection, with a guaranteed payout of $1,898,672.

$1,898,672.00

VII/21-41 SWIMMING POOL ACCIDENT – QUADRIPLEGIA – SUCCESSOR CORPORATION ISSUE

SETTLEMENT Pezzullo v. Raymond and Arlene Rumbowski; Rohan Swimming Pool Center; George Rohan; and Royal Pools & Spas, Inc. 2280/85 Date of Settlement 8/88 Orange Supreme

Pltf. Atty: John J. Basso of Spiegel, Pergament, Brown & Basso, Poughkeepsie

This was a structured settlement, made before jury selection, with a guaranteed payout of $1,898,672.

The accident occurred on 8/6/83. Pltf., a 25-year-old correction facility guard, was a guest at a party at Deft. Rumbowski’s home. He dove into the shallow end of Deft.’s pool and struck his head on the bottom. Pltf. was rendered a quadriplegic and is confined to a wheelchair. Pltf. claimed that the pool did not have lights, depth or warning markers, and no reference points indicating its deep and shallow ends. Pltf. also claimed that Rohan Swimming Pool Center negligently designed, constructed, and installed the pool, according to standard safety precautions and advancements pursuant to National Swimming Pool Institute recommendations. Evidence indicated that Deft. Rohan Swimming Pool Center built the pool for Deft. Rumbowski about 15 years before this incident. Several years before the accident, Rohan sold the business to Deft. Royal Pools & Spas, which consisted of the same employees, business, and customer lists. The new owner was Deft. George Rohan’s son-in-law. The old and new corporations shared newspaper ads which stated: “same corporation, new name only.” At the time of the incident, Rohan was out of business and uninsured. Pltf. claimed that Deft. Royal Pools was negligent on the theory of successor corporation liability and a continuing duty to warn based on advancements in the safety field. Injuries: spinal cord trauma at C-3 resulting in quadriplegia. Pltf. can move his arms but has no fine motor movement in his hands. Demonstrative evidence: “Day in the Life” film, as part of a videotape settlement brochure distributed to all counsel and insurance carriers; scale model of swimming pool; blowup of survey of homeowner policy. Specials: $500,000. Pltf. Experts (on the videotaped brochure): George Lawniczak, Jr., Ph.D., water safety, Las Vegas, Nevada; Edmond Provder, vocational evaluation, Manhattan; Andrew Weintraub, Ph.D., economist, Temple Univ.

Maria Siudut v. Van-Go Transportation Co., Inc. and Carol Johnson

MASSIVE INJURIES

Cleaning houses

NY

Liability: Deft. 85% negligent; Pltf. 15% negligent ( 6/0). The case settled for $2,800,000 before Pltf. rested on damages.

$2,800,000.00

XIV/37-6 MOTOR VEHICLE PEDESTRIAN IN CROSSWALK STRUCK BY BUS IN INTERSECTION MASSIVE INJURIES

Maria Siudut v. Van-Go Transportation Co., Inc. and Carol Johnson 25836/93 7-day trial Verdict 2/14/97 Judge Julius Vinik, Kings Supreme

VERDICT: Liability: Deft. 85% negligent; Pltf. 15% negligent ( 6/0). The case settled for $2,800,000 before Pltf. rested on damages. Jury: 4 male, 2 female.

Pltf. Atty: Paul D. Dansker of Dansker & Aspromonte, Manhattan

Deft. Atty: Steven R. Payne of Robin, Rome, Goldfarb & Lloyd, Manhattan

Facts: This motor vehicle accident involved a pedestrian who was struck by a private school bus at a controlled intersection. Pltf. was a 45-year-old Polish immigrant with a Masters degree in engineering who was employed cleaning houses. She claimed that on 6/16/93, she was walking across Ocean Pkwy. in the crosswalk at the intersection with Ditmas Ave. in Brooklyn when she was struck by a private school bus driven by Deft. Johnson and owned by Deft. Van-Go. Pltf. claimed that Deft. was traveling in excess of the speed limit, that she was inattentive to the road and did not keep a proper lookout, and that she ran the red light. Deft. contended that she had the green light, and that Pltf. stepped out into the street against the light and did not look to her left before crossing. Deft. Johnson claimed that after impact, Pltf. landed in the crosswalk. Pltf. introduced eyewitness testimony from a resident of an adjacent apartment building stating that Pltf. came to rest 33 feet down the road from the crosswalk. Based on this evidence, Pltf. s accident reconstruction expert opined that Deft. was speeding, and that based on time, distance, and physics, Deft. was not even in the intersection when Pltf. started to cross the street.

Injuries: comminuted fracture of the left tibia and fibula treated with external fixators; ruptured spleen requiring removal; fractured left pelvis; shattered left elbow; fracture at L2-3; numerous rib fractures; closed head injury with mild impairment. Pltf. was hospitalized in critical condition, and remained in the hospital for 6 weeks following the accident. She is left with 1-inch shortening of the left leg and walks with a cane. She claimed that she is in constant pain and suffers from permanent emotional, psychological, and intellectual problems. She has not worked since the date of the accident. Demonstrative evidence: aerial photographs of the intersection; multiple photographs of the roadway from the ground level; accident reconstruction drawings; hospital records; skeleton; photographs of Pltf. s injuries. Offer: $1,500,000 before the liability verdict; demand: $3,500,000. Jury deliberation: 3 hours. Carrier: Cigna. Pltf. Experts: James Pugh, Ph.D., accident reconstruction, Inter-City Testing, Mineola; Dr. Chavivan Dharapak, treating orth. surg., Coney Island; Dr. Richard Stern, orth. surg., Manhattan; Dr. David Zimmon, gastroenterologist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Deft. would have called Dr. William Head, neuropsychiatrist, Manhattan; Dr. Martin Wolpin, orth. surg., Brooklyn.

Joseph Zatorski v. Plant Partners, L.L.P. and TML Management Services

HERNIATED CERVICAL AND LUMBAR DISCS

Truck driver

New York, NY

This action settled prior to jury selection, in front of mediator Michael McAllister, for $675,000.

$675,000.00

XVIII/9-47 FALLDOWN STAIRS HERNIATED CERVICAL AND LUMBAR DISCS

SETTLEMENT: Joseph Zatorski v. Plant Partners, L.L.P. and TML Management Services 122605/97 Date of Settlement 3/3/00 New York Supreme

Pltf. Atty: Martin Block of Sanders, Sanders, Block & Woycik, P.C., Mineola

Deft. Atty: Alyson M. Piscitelli of Jacobowitz, Garfinkel & Lesman, Manhattan

This action settled prior to jury selection, in front of mediator Michael McAllister, for $675,000. Pltf., a 37-year-old truck driver, claimed that on 6/6/96, while delivering newsprint to the Daily News plant in Brooklyn, he tripped over a rock used to hold open a self-locking door to the loading platform and fell down a flight of metal steps from which one handrail was missing. Pltf. further claimed that the railing had been missing for almost a year, and that Deft. did not repair it because plant operations were being moved to New Jersey. Deft. contended that the accident occurred because Pltf. was in a hurry, and was rushing. Deft. further contended that it did not know who put the rock in the doorway. Deft. also contended that Pltf. should have seen the rock.

Injuries: herniated cervical disc at C5-6 requiring anterior discectomy with fusion and plating; herniated cervical and lumbar discs at C4-5, L5-S1; bulging lumbar disc at L4-5; and left (nondominant) shoulder derangement. Pltf. claimed total disability and never returned to work. Deft. contended that Pltf. was not totally disabled and that he had pre- existing degeneration because of heavy lifting and his overweight condition. Demonstrative evidence: graphic illustration of cervical discectomy. Specials: Workers Compensation settled for an additional amount.

Pltf. Experts: Conrad Berenson, Ph.D., economist, Woodbury; Edmond Provder, vocational rehabilitation, Manhattan.

Kevin Devlin v. Sony Corp. of America, Rathe Productions Incorporated v. Nastasi White, Inc. / Structure Tone, Inc. v. Coyne Electrical Construction Co., Inc. v. Empire Iron Works, Inc.

HERNIATED LUMBAR AND CERVICAL DISCS

Apprentice electrician

New York, NY

This action settled during jury selection for $2,900,000, plus a waiver of a $300,000 Workers Compensation lien

$2,900,000.00

XV/31-43 LABOR LAW ELECTRICIAN FALLS FROM LADDER HERNIATED LUMBAR AND CERVICAL DISCS

SETTLEMENT: Kevin Devlin v. Sony Corp. of America, Rathe Productions Incorporated v. Nastasi White, Inc. / Structure Tone, Inc. v. Coyne Electrical Construction Co., Inc. v. Empire Iron Works, Inc. 122980/94 Date of Settlement 6/18/97 New York Supreme

Pltf. Atty: Kevin B. McAndrew of McAndrew, Conboy & Prisco, Woodbury

This action settled during jury selection for $2,900,000, plus a waiver of a $300,000 Workers Compensation lien. On 12/20/93, Pltf., a 25- year-old apprentice electrician, fell approximately 6 feet from a ladder while running electric conduit at a worksite on Madison Ave. in Manhattan. The ladder was on plywood that was covering a stairwell opening. Pltf. contended that the plywood was loose and unsecured and that when a co- worker walked on the plywood, it bounced, shook Pltf. and the ladder, and caused him to fall. Pltf. was granted summary judgement for Deft. s violation of Labor Law ?240. The Appellate Division affirmed the decision ( Devlin v. Sony, et al, ___ A.D.2d ___, 655 N.Y.S.2d 762).

Injuries: herniated lumbar and cervical discs. Pltf. underwent two lumbar laminectomies and a lumbar fusion as well as a cervical laminectomy. Pltf. claimed that he had permanent restriction of motion in the back and neck and nerve damage causing a partial drop foot. Demonstrative evidence: X-rays; MRIs; photos of Pltf.; video of Pltf. after surgery.

Pltf. Experts: Pltf. would have called Dr. Reuben Hoppenstein, neurosurgeon, Manhattan; Anna Dutka, economist, Manhattan.

Deft. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Dr. Jonathan Korn, orth. surg., Manhattan; Dr. Jerome Block, neurosurgeon, Manhattan; Dr. Walter Delph, urologist, Manhattan.

Sjur Stephen Madsgard v. W.J. Barney Corp., et al. v. BFM Contracting

FRACTURED CALCANEUS RESULTING IN REFLEX SYMPATHETIC DYSTROPHY WITH OVER 70 OPERATIONS

Bricklayer

Kings, NY

This action settled after jury selection and before opening statements for $3,000,000 plus a waiver of a $343,000 Workers Compensation lien.

$3,000,000.00

XVIII/14-50 LABOR LAW SCAFFOLD SUMMARY JUDGMENT ON LIABILITY FRACTURED CALCANEUS RESULTING IN REFLEX SYMPATHETIC DYSTROPHY WITH OVER 70 OPERATIONS

SETTLEMENT: Sjur Stephen Madsgard v. W.J. Barney Corp., et al. v. BFM Contracting 14131/95 Date of Settlement 5/15/00 Kings Supreme

Pltf. Atty: Michael S. Levine of Gandin, Schotsky, Rappaport, Glass & Greene, L.L.P., Melville

Deft. Atty: Harry P. Brett of Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., Manhattan, for all Defts.

John Kieran Daly of Tutoki & Goldstick, Manhattan, for Third-party Deft. BFM

This action settled after jury selection and before opening statements for $3,000,000 plus a waiver of a $343,000 Workers Compensation lien. On 12/20/94 at approximately 8:35 AM, Pltf., a 38-year- old bricklayer, was working at the Prospect Heights High School in Brooklyn. Pltf., an employee of Third-party Deft. BFM claimed he was injured when he fell from a scaffold bridge erected between two retaining walls. Pltf. further claimed that the bridge was not equipped with any safety devices to protect workers from falling. Pltf. moved for summary judgment under Labor Law ?240(1). Defts. contended that summary judgment should not be granted because: there were no eye witnesses; Pltf. was a recalcitrant worker; Pltf. had disobeyed a directive not to use the scaffold; and there was still outstanding discovery. The motion for summary judgment was granted. Pltf. was also granted a special trial preference by reason of his indigent status.

Injuries: fractured left calcaneus that required emergency surgery. Pltf. claimed that the injury subsequently resulted in reflex sympathetic dystrophy, which was so severe that he has since undergone 70 procedures and surgeries, including: a fasciotomy of his left foot; dozens of lumbar sympathetic nerve block procedures; the implantation of a spinal cord stimulating apparatus; and stellate ganglion blocks. Defts. contended that Pltf. did not suffer from reflex sympathetic dystrophy. Pltf. has not worked in any capacity since the accident, and claims to be totally disabled. Demonstrative evidence: medical illustrations showing the various procedures and surgeries performed on Pltf.; timeline showing the 70+ procedures that have been performed on Pltf. to date. No offer; demand: $5,000,000. Settlement apportionment: $1,500,000 paid by AIG on behalf of Defts.; $1,500,000 (plus the waiver of the lien) paid by ITT Hartford on behalf of Third-party Deft. Carriers: AIG for Defts.; ITT Hartford for BFM.

Pltf. Experts: Pltf. would have called Dr. Howard V. Katz, orth. surg., Liberty; Dr. Vito Rizzo, D.P.M., podiatrist, Bay Shore; Dr. Ronit Adler, anesthesiologist, West Islip; Dr. Sunil Butani, physical medicine, Garden City; Edmond Provder, vocational rehabilitation, Manhattan; Alan Leiken, Ph.D., economist, Stony Brook.

Deft. Experts: Defts. would have called Dr. Ralph Olson, neurosurgeon, Manhattan; Dr. Maurice Carter, orth. surg., Manhattan; James Pascuiti, vocational rehabilitation, Springfield, New Jersey.

Sebastian DelDuca, a minor, by his parents and guardians ad litem, Tracy DelDuca and Lenny DelDuca, and individually v. Ridgewood Board of Education, No. BER-L-8026-07

Maze outside softball field led to child’s collision with car

Bergen County Superior Court, NJ

Settlement was reached with the school district on behalf of all three plaintiffs for the sum of $3 million, after two days of conferences with Judge Alexander Carver III. The settlement with the driver (whose name was not disclosed) was for $1 million, resulting in an aggregate recovery of $4 million.

$3,000,000.00

Judge: Alexander H. Carver, III

Date: 01-28-2011

PLAINTIFF(S)

• Bruce Magaw; Decker & Magaw; Westfield, NJ, for Sebastian DelDuca, Tracy DelDuca, Lenny DelDuca
• Scott Parsons; O’Connor, Parsons & Lane, LLC; Westfield, NJ, for Sebastian DelDuca, Tracy DelDuca, Lenny DelDuca

• Thomas Pienciak; Playgrounds; Cedar Knolls, NJ called by: Bruce Magaw, Scott Parsons
• Dr. Steven Batterman Ph.D; Biomechanics; Cherry Hill, NJ called by: Bruce Magaw, Scott Parsons
• Daniel Adler M.D; Pediatric Neurology; Englewood, NJ called by: Bruce Magaw, Scott Parsons
• Charles Kincaid Ph.D.; Vocational Rehabilitation; Hackensack, NJ called by: Bruce Magaw, Scott Parsons
• Leonard Lucenko Ph.D., C.P.S.I., A.C.F.E.I.; Physical Education; Lake Ariel, PA called by: Bruce Magaw, Scott Parsons
• Kristin Kucsma M.A.; Personal Injury (Economics); Livingston, NJ called by: Bruce Magaw, Scott Parsons
• Linda Lajterman R.N.; Life Care Planning; Ramsey, NJ called by: Bruce Magaw, Scott Parsons
• G. Cosentino; Landscape Design; Red Bank, NJ called by: Bruce Magaw, Scott Parsons
• Michael Kalsher Ph.D.; Human Factors — See also TECHNICAL-Engineering-Ergonomics; Rensselaer, NY called by: Bruce Magaw, Scott Parsons
• Walter Suhaka,; Accident Investigation & Reconstruction/ Failure Analysis/Product Liability; Wayne, NJ called by: Bruce Magaw, Scott Parsons

DEFENDANT(S)

• Christopher Fusco; Callahan & Fusco, LLC; East Hanover, NJ, for Ridgewood Board of Education
• Matthew D. Stockwell; Callahan & Fusco, LLC; East Hanover, NJ, for Ridgewood Board of Education

• Timothy Carlsen P.E.; Engineering; Edison, NJ called by: Christopher Fusco, Matthew Stockwell
• Carl Abraham Ph.D.; Safety; Great Neck, NY called by: Christopher Fusco, Matthew Stockwell
• Edmond Provder C.R.C.; Vocational Rehabilitation; Lodi, NJ called by: Christopher Fusco, Matthew Stockwell
• Richard Wostbrock P.E.; Engineering; Midland, NJ called by: Christopher Fusco, Matthew Stockwell
• Jack Samuels E.D.D.; Sports/Recreation; Monclair, NJ called by: Christopher Fusco, Matthew Stockwell
• Walter Molofsky, M.D.; Pediatric Neurology; New York, NY called by: Christopher Fusco, Matthew Stockwell
• Michael Soudry MBA; Economics; New York, NY called by: Christopher Fusco, Matthew Stockwell
• Andrew Rentschler Ph.D.; Biomedical; Pittsburgh, PA called by: Christopher Fusco, Matthew Stockwell
• John Desch P.E.; Accident Reconstruction; Riverdale, NJ called by: Christopher Fusco, Matthew Stockwell

• QBE Insurance Co.

On June 13, 2004, plaintiffs Tracy and Lenny DelDuca, and their children, Maggie, 4, and Sebastian, 22 months, attended a church softball game at Benjamin Franklin Middle School in Ridgewood. The field was surrounded by a chain-link fence. An ungated entrance, roughly 15 feet from East Glen Avenue, was connected to the field by a maze-like structure designed to keep out bicycles (a person entering or exiting had to make three 90-degree turns). While his father played in the game and his mother and sister stood behind the backstop, Sebastian ran through the maze and onto the road, where he was struck by a car.

The parents sued the Ridgewood Board of Education, the owner of the field, claiming that the design of the maze entrance and the fence around the field, just 15 feet from a busy roadway, created a hazardous condition. The plaintiffs further claimed that the narrowness of the maze configuration impeded Tracy DelDuca’s progress as she attempted to chase after Sebastian.

The parents also asserted a claim against the driver of the vehicle that struck Sebastian and settled that case prior to and without the necessity of filing a lawsuit against that tortfeasor.

The school district contended that Tracy was at fault for failing to supervise her child and that the maze had caused no accidents in its previous 18 years of existence.

Sebastian was struck in the head by the vehicle and suffered severe brain damage and injury to his left leg. He was in a coma for two years afterward, is blind and has little or no cognitive function. He cannot walk or talk.

There was no dispute as to the extent, seriousness and permanency of Sebastian’s injuries.

The plaintiffs claimed a life-care plan for Sebastian would cost $8 million. Tracy, who was only inches from Sebastian when he was struck, suffered from severe post-traumatic stress disorder. Both Tracy and Lennie asserted Portee claims for emotional distress.

Christopher Fields v. State of New York

FRACTURED CALCANEUS, WRIST AND BACK INJURIES

Carpenter

White Plains, NY

$576,772. Breakdown: $275,000 for past pain and suffering; $225,000 for future pain and suffering; $40,346 for past medical expenses; $5,000 for future medical expenses; $31,426 for past lost earnings; $0 for future lost earnings.

$576,772.00

XVIII/2-36 SCAFFOLD ACCIDENT LIABILITY CONCEDED DAMAGES TRIAL FRACTURED CALCANEUS, WRIST AND BACK INJURIES

Christopher Fields v. State of New York Claim No. 97645 23-page Decision Filed 5/22/00 Court of Claims, White Plains

Judge: Andrew P. O Rourke

Decision: $576,772. Breakdown: $275,000 for past pain and suffering; $225,000 for future pain and suffering; $40,346 for past medical expenses; $5,000 for future medical expenses; $31,426 for past lost earnings; $0 for future lost earnings. Liability was conceded.

Clmt. Atty: Joel Bossom of Finkelstein, Levine, Gittelsohn & Partners, Newburgh

Deft. Atty: Liam O Brien of Mendes & Mount, L.L.P., Manhattan

Facts: On 8/28/96, Clmt., a carpenter who was 36 years old at the time of trial, was injured while employed on a construction project at Stewart International Airport. Clmt. fell approximately 8 feet from a scaffold onto a concrete surface. The State conceded liability under Labor Law ?240, and the trial proceeded damages.

Injuries: comminuted fractures to the right calcaneus; torn cartilage in the right wrist; soft tissue injuries to the back. The heel injury required three separate surgeries: open reduction and internal fixation, removal of hardware and scar tissue from the subtalar joint to restore motion, and a subtalar fusion (scheduled to be performed in October of 1998, but canceled because Clmt. suffered a subsequent hand accident). Clmt. s physician testified that Clmt. would be left with degenerative arthritis, permanent pain, and a permanent limp. Deft. s expert testified that a subtalar fusion was unnecessary, because it is required only in cases of intractable pain . Deft. conceded that Clmt. suffered atrophy of the right calf muscle, but concluded that the injuries Clmt. sustained should not have any bearing on the walking function. Clmt. contended that his injuries confined him to work as a shop carpenter and he could no longer work on construction projects because he could not climb ladders, or work at heights or on uneven surfaces. As a result, he claimed that his earning ability was reduced to less than $10 per hour, approximately one-third less than the hourly rate for a general carpenter. The court found, however, that proof indicated that Clmt. returned to work after his injury on restricted duty, and received the same rate of pay he had received prior to the injury. The court found that Clmt. would require a subtalar fusion in the future, but found speculative the contention that the possibility of a fourth surgery, a triple arthrodesis, would be required.

Clmt. Experts: Dr. Joel Mandel, orth surg., New Windsor; Dr. David L. Helfet, treating orth. surg., Manhattan.

Deft. Experts: Dr. Leon Sultan, orth. surg., Franklin Square; Edmond Provder, vocational rehabilitation, Manhattan.

Christopher Fields v. State of New York

WRIST AND BACK INJURIES

Carpenter

White Plains, NY

Breakdown: $31,426 for past lost earnings (by stipulation); $0 for future lost earnings; $40,346 for past medical expenses (by stipulation)?

$576,772.

XVIII/7-40 LABOR LAW FALL FROM SCAFFOLD MULTIPLE HEEL FRACTURES REQUIRING SURGERY WRIST AND BACK INJURIES LIABILITY CONCEDED DAMAGES TRIAL

Christopher Fields v. State of New York Claim No. 97645 23-page Decision Filed 5/22/00 Court of Claims, White Plains

Judge: Andrew P. O Rourke

Decision: $576,772. Breakdown: $31,426 for past lost earnings (by stipulation); $0 for future lost earnings; $40,346 for past medical expenses (by stipulation); $5,000 for future medical expenses; $275,000 for past pain and suffering; $225,000 for future pain and suffering.

Clmt. Atty: Joel Bossom of Finkelstein, Levine, Gittelsohn & Partners, Newburgh

Deft. Atty: Liam O Brien of Mendes & Mount, L.L.P., Manhattan

Facts: On 8/28/96, Clmt., then age 32, was working as a carpenter on a construction project at Stewart International Airport. He fell about 8 feet to the ground from an improperly secured scaffold, landing on the first concrete step of a flight ascending into the building, and then falling backwards onto his right wrist. Prior to trial, Deft. conceded liability under Labor Law ?240(1) and this trial on damages ensued.

Injuries: multiple fractures of the left heel requiring open reduction and internal fixation involving the insertion of two bone plates, 10 screws, and two washers and a bone graft taken from Clmt. s pelvis; torn cartilage in his right wrist, and soft tissue injuries to the lower back. Clmt. s expert orthopedist testified that Clmt. was left with a right-side limp because of his lack of motion in the heel bone. He testified that Clmt. suffered atrophy to the calf as a result. The expert predicted that Clmt. would require a subtalar fusion and, if that did not relieve his complaints of continuing pain, a subsequent triple arthrodesis would be required. Deft. s expert testified that a subtalar fusion is indicated only where there is intractable pain, and that Clmt. was not a candidate for such a procedure. Deft. s expert found some motion in the heel, and contended that Clmt. should be able to walk without pain, climb stairs or ladders, and stand for long periods with proper footwear. Clmt. contended that he was no longer able to work as a maintenance carpenter, which involves roof repairs, etc., because he could no longer stand on ladders or work at heights. He testified that he was restricted to light duty as a shop carpenter. He was disabled from work until 4/30/98. The court, in reaching its damages award, found that Clmt. failed to establish future lost earnings, as he returned to a carpenter s job with the same rate of pay he had prior to his injury. The court found that subtalar fusion would be necessary, but that an award of damages for the triple arthrodesis would be unduly speculative.

Clmt. Experts: Dr. Joel E. Mandel, orth. surg., New Windsor; Dr. David L. Helfet, treating orth. surg., Manhattan.

Deft. Experts: Dr. Leon Sultan, orth. surg., Franklin Square; Edmond Provder, vocational rehabilitation, Manhattan.

Thorsten Gigger v. Sidney Fein, Evelyne Jeanniton, Ajay General Contracting, K.B.M. Design; R&D Home Improvement, and Superior Aluminum Products

PARAPLEGIA

Self-employed excavator

Suffolk, NY

This action settled for $3,050,000 during trial.

$3,050,000.00

XVI/27-48 LABOR LAW PORTICO FALLS ON EXCAVATOR FAILURE TO PROVIDE SAFETY EQUIPMENT PARAPLEGIA

SETTLEMENT: Thorsten Gigger v. Sidney Fein, Evelyne Jeanniton, Ajay General Contracting, K.B.M. Design; R&D Home Improvement, and Superior Aluminum Products 4209/95 Dates of Settlement 9/24/98, 10/27/98 Suffolk Supreme

Pltf. Atty: Gerald Lotto, Bohemia

Michael S. Levine of Gandin, Schotsky, Rappaport, Glass & Greene, Melville

This action settled for $3,050,000 during trial. Pltf., a 31-year- old self-employed excavator, claimed that he was injured on 1/25/95 at 12 PM while performing excavation work on a multi-family dwelling located at 28-05 Bell Blvd. in Bayside. It was owned by Defts. Fein and Jeanniton. Deft. Ajay was the general contractor, and it hired Deft. K.B.M. to excavate a new driveway and parking area on the south side of the building and remove the stoop at the south entrance. Deft. K.B.M. subcontracted Pltf. to remove with his backhoe the existing dirt in the area where the driveway and parking lot were to be located.

Pltf. claimed that an employee of K.B.M. asked him to check two columns on the stoop, which were supporting a portico, to determine if they were weight bearing. He contended that he grabbed one column with both hands and moved it in a spinning fashion and kicked it one to three times with the inside of his foot. The column then moved without warning, and the portico fell onto Pltf. Pltf. claimed that Defts. Fein, Jeanniton, Ajay, and K.B.M. failed to provide him with adequate safety devices as required by Labor Law ?240(1). Pltf. also argued that Deft. R&D Home Improvements negligently installed the columns because they were not affixed to the roof or stoop. Pltf. also contended that Deft. Superior Aluminum provided negligent instructions for the installation of the columns, which did not require that they be secured in place with “L” brackets.

Defts. Fein, Jeanniton, Ajay, and K.B.M. contended that Labor Law ? 240(1) did not apply. Deft. R&D argued that it properly installed the columns and that it followed the manufacturer’s instructions when installing them. Deft. Superior contended that its instructions were adequate and that the accident was caused by Pltf.’s own negligence.

Injuries: paraplegia; incontinence; impotence. Demonstrative evidence: model of construction site; photos of site; MRIs; illustrations of spine. Specials: $150,000 for medical expenses. No offer; demand: $3, 000,000 from Fein, Jeanniton, Ajay, K.B.M., and R&D; $1,500,000 from Superior. Carriers: Nationwide for R&D; Maryland Commercial for K.B.M.; Transtate for Fein and Jeanniton; Continental for Ajay Contracting. Settlement apportionment: $450,000 paid by Fein and Jeanniton; $450,000 paid by Ajay Construction; $800,000 paid by K.B.M.; $600,000 paid by R&D Home; $750,000 paid by Superior. Note: Defts. Fein, Jeanniton, Ajay, K.B. M., and R&D settled on 9/24/98; Deft. Superior settled on 10/27/98 during deliberations.

Pltf. Experts: Dr. Thomas Mauri, orth. surg., Great Neck; Dr. Barry Root, physical and rehabilitative medicine, Glen Cove; Dr. Alan Mechanic, neurologist, Garden City; Dr. Edmond Provder, vocational rehabilitation, Manhattan; Alan Leiken, Ph.D., economist, East Setauket; Jerome Connor, Sc.D., engineer, Cambridge, Massachusetts; Jean Miele, architect, Middle Village.

Deft. Experts: Robert Ratay, Ph.D., civil engineer, Brooklyn; James Maloney, engineer, Mineola; Morris Ehrenreich, Ph.D., vocational rehabilitation, Westbury.

Jerome Smith v. 333 Loft Associates

HERNIATED LUMBAR DISC

Painter

Manhattan, NY

Pltf.’s verdict on liability (5/1). Post-trial motions were denied. Case subsequently settled during the damages trial for $575,000.

$575,000.00

XIII/43-8 LABOR LAW LADDER COLLAPSE HERNIATED LUMBAR DISC

Jerome Smith v. 333 Loft Associates 28822/91 4-day trial Verdict 3/25/96 Judge Leonard E. Yoswein, Kings Supreme

VERDICT: Pltf.’s verdict on liability (5/1). Post-trial motions were denied. Case subsequently settled during the damages trial for $575, 000. Jury: 2 male, 4 female.

Pltf. Atty: Albert Khafif of Rubenstein, Flatow & Rynecki, Brooklyn

Deft. Atty: William M. Boyle of Moore & Lafferty, Brooklyn

Facts: Pltf., a 52-year-old “off-the-books” painter, claimed that he was injured on 8/21/90 when he fell from a 6-foot-high ladder while painting a ceiling at 333 West 39th St. in Manhattan. Pltf. testified that the ladder did not have safety feet and there was no one with him to hold the ladder in place. Pltf. claimed that he was holding on to a water pipe to reach a portion of the ceiling when the ladder fell over. Pltf. contended that he was left hanging onto the pipe until he lost his grip and fell to the floor, landing on his heels. There were no witnesses to the accident. Pltf. contended that Deft. violated Labor Law ? 240(1) by failing to provide a safe workplace.

Deft. contended that the accident never happened, and claimed that Pltf.’s employer, who had died before the trial, had stated to Deft. that Pltf. was not working on a ladder on the day of the accident. Deft. also noted that Pltf. did not introduce any evidence indicating that the equipment was defective, and further noted that the equipment was supplied by Pltf.’s deceased employer.

Injuries: (settled for $575,000 during the damages trial) herniated disc at L5-S1 with sequestered fragments, requiring a laminotomy. Deft. would have argued that Pltf. suffered from pre-existing degenerative disc disease. Pltf.’s neurologist would have testified that although Pltf. had degenerative disc disease, the nerves in the affected area showed evidence of edema, indicating a fresh injury. Demonstrative evidence: charts of vocational rehabilitation testing; medical records; model of the spine; map of nerves in the area of the injury. Jury deliberation: 4 hours. Carrier: Aetna. Pltf. Experts: Dr. Irving Friedman, neurologist, Bronx; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Fred Scialabba, neurosurgeon, Glens Falls; Dr. Edmond Mantell, Ph.D., economist, Scarsdale . Deft. Experts: Dr. Steven Gilbert, neurologist, Brooklyn; Dr. Bruce Zablow, neuroradiologist, Manhattan; Dr. Fred Goldman, Ph.D., economist, Manhattan; Dr. Joel Teicher, orth. surg., Brooklyn.

John and Jan Kramer v. Steven Robillard and Vassalo Landscape Management, Inc.

AGGRAVATION OF SPINA BIFIDA REQUIRING FUSION SURGERY, AGGRAVATION OF KNEE INJURY

Construction worker

NY

$3,392,266 for John K. Breakdown: $500,000 for past pain and suffering; $1,000,000 for future pain and suffering; $42,000 for past medical expenses; $13,000 for future medical expenses?

$3,392,266.00

XII/21-1 MOTOR VEHICLE QUESTION OF LIGHTS AGGRAVATION OF SPINA BIFIDA REQUIRING FUSION SURGERY, AGGRAVATION OF KNEE INJURY

John and Jan Kramer v. Steven Robillard and Vassalo Landscape Management, Inc. 258/93 2?-week trial Verdict 9/20/94 Judge Joseph G. Owen, Orange Supreme

VERDICT: $3,392,266 for John K. Breakdown: $500,000 for past pain and suffering; $1,000,000 for future pain and suffering; $42,000 for past medical expenses; $13,000 for future medical expenses; $120,000 for past lost earnings; $1,717,266 for future lost earnings.

$200,000 for Jan K. for loss of services. Post-trial motions were denied. This action subsequently settled for an undisclosed amount within the policy limit pursuant to a high/low agreement.

Pltf. Atty: John J. Basso of Basso & Burke, Poughkeepsie

Deft. Atty: Hugh A. Scott, New Windsor

Facts: The accident occurred on 3/23/92 at the intersection of Rtes. 300 and 32 in the Town of Newburgh. Pltf., a 40-year-old construction worker who was out on disability at the time, testified that he was driving through the intersection with a green light when his vehicle was broadsided by Deft.’s fully loaded dump truck weighing 36,000 lbs. Deft. Robillard, the truck driver, claimed that he had the green light and that he blew his horn before entering the intersection. He also claimed that he was driving only 10 mph at the time. Eyewitnesses testified that they did not hear any horns at the scene. Pltf.’s accident reconstruction expert testified that Pltf.’s vehicle was propelled 40 feet into the front end of another car. He testified that his impact analysis determined that 40,000-60,000 pounds of force was exchanged, which indicated that Deft.’s vehicle was moving at approximately 30 mph at impact. The jury found Deft. 100% liable.

Injuries: aggravation of spina bifida occulta requiring spinal fusion; aggravation of pre-existing injury to the right knee requiring arthroscopic surgery. There were no firm objective findings on myelogram, CAT scan, or MRI. Pltf. was involved in two prior work-related accidents in which he injured his right knee in May and December 1991. The accident at bar occurred 2 weeks before he was to return to work. Deft. contended that Pltf. suffered from degenerative disc disease and that he had suffered a back injury in one of the two prior accidents. Pltf. produced emergency room records which indicated that the back injury arose only after the instant accident. Deft. also contended that there were errors in the Workers’ Compensation applications and various medical records indicating a prior back injury. Pltf. called the Workers’ Compensation attorney and all of the physicians in whose reports the errors were made who testified that these were data entry errors. Pltf. also called the responding police officer who testified that Pltf. made complaints of back pain at the scene. Pltf.’s vocational expert testified that Pltf. was unemployable. Pltf. called his minister who testified that before the accident, in his spare time, Pltf. performed heavy construction work at the church. After the accident, he was limited to counseling troubled youths and assisting in marriage counseling. Pltf. attempted to return to school for a degree in social work, but was unable to continue because of various surgeries and problems with sitting or standing for extended periods. Demonstrative evidence: full-scale three-dimensional model of the human spine with muscles and nerves; photo enlargements of Pltf.’s and Deft.’s vehicles; X-rays showing spinal fixation; various braces and devices Pltf. used; enlargement of hospital records; reconstructive diagram of intersection. Pltf. Experts: William Burrill, accident reconstruction, Inter-Tech, Albany; Dr. Michael Kamalian, orth. surg., Middletown (by videotape); Dr. John Mazella, orth. surg., Mt. Kisco ( performed arthroscopic surgery records stipulated into evidence); Dr. Jesse Manlapaz, surgeon, New Milford, Connecticut (performed spinal fusion ); Andrew Weintraub, Ph.D., economist, Temple University; Dr. Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Dr. Mary Godesky, orth. surg., Kingston; Dr. Hugh Wisoff, neurosurgeon, Bronx; Dr. Leona Liberty, vocational rehabilitation, Albany.

Joyce Dingle v. Patricia Virga; Donald Harman; Liberty Lines, Inc.; County of Westchester

HERNIATED LUMBAR DISC, DENTAL, AND NASAL INJURIES

Westchester, NY

$574,505. Virga 100% negligent. Defense verdict for other Defts.

$574,505.00

VIII/6-14 MOTOR VEHICLE — LEFT TURN IN FRONT OF BUS — PASSENGER SUFFERS HERNIATED LUMBAR DISC, DENTAL, AND NASAL INJURIES

Joyce Dingle v. Patricia Virga; Donald Harman; Liberty Lines, Inc.; County of Westchester; and Westchester County Dept. of Transportation 16160/87 13-day trial Judge W. Denis Donovan, Westchester Supreme

VERDICT: $574,505. Virga 100% negligent. Defense verdict for other Defts. Breakdown: $7,800 for past medical expenses; $4,825 for past dental expenses; $4,600 for past hospital expenses; $150 for past medication expenses; $120,000 for past loss of earnings; $830 for past rehabilitation services; $130,000 for past pain and suffering; $9,000 for future medical expenses; $6,000 for future hospital expenses; $4,000 for future custodial care/household services; $2,000 for future medical appliances; $300 for future medication; $132,000 for future loss of earnings; $1,000 for future rehabilitation services; $152,000 for future pain and suffering including permanent effect of injuries. Notice of Appeal by Deft. Virga.

Pltf. Atty: Louis J. Galgano III for Michael A. Russo, White Plains

Deft. Atty: Paul Aronow and Susan A. Flynn for William J. Cariello, Garden City

Facts: Pltf., 36 years old at the time of the accident on 5/14/87, was a passenger on a bus owned by Westchester County, driven by Donald Harman, and operated by Liberty Lines. Deft. Virga (100% liable) made a left turn in front of Deft.’s bus at the intersection of Dunnings Dr. and Tarrytown Rd. in Greenburgh. Although neither the bus nor the Virga vehicle made contact, the bus swerved, causing Pltf. to fall out of her seat. Injuries: concussion; nasal fracture with deviated septum; lacerations of the mouth; fracture of a fixed dental bridge; loosening of several natural teeth; cervical sprain; herniated lumbar disc. Pltf. underwent a lumbar laminectomy of L5-S1 with disc excision and nerve root decompression. Pltf.’s experts testified that she will be required to undergo a spinal fusion to L5-S1 intervertebral space and a surgical correction of the deviated nasal septum. Pltf. had been employed as a computer technician prior to the accident. She claimed that she can no longer work. Deft. contended that Pltf. made a good recovery from past surgical procedures and is capable of employment. Pltf. Experts: Dr. Dan Moskowitz, otolaryngologist, White Plains; Dr. Cornelius Jenkins, D.D.S., dentist, White Plains; Edward Provder, occupational assessment expert, Manhattan; Dr. John Galeno, orth. surg., Briarcliff; Dr. Conrad Berenson, Ph.D., economist, Woodbury. Deft. Experts: Dr. Steven Kase, otolaryngologist, White Plains; Dr. Chandra M. Sharma, neurologist, Manhattan; Dr. David Koretz, orth. surg., Plainview.

Josephine Vera v. Beth Israel Medical Center and Dr. Harold Schwartz

ATTEMPTED SUICIDE PARAPLEGIA AND LEG AMPUTATION

New York, NY

$3,210,000 plus $400,000 for stipulated cost of past care and maintenance

$3,610,000

XI/26-2 PSYCHIATRIC MALPRACTICE PREMATURE DISCHARGE OF PATIENT ATTEMPTED SUICIDE PARAPLEGIA AND LEG AMPUTATION ADDITUR FOR PAST PAIN AND SUFFERING

Josephine Vera v. Beth Israel Medical Center and Dr. Harold Schwartz 24767/85 3-week trial Verdict 11/15/93 Judge Ira Gammerman, New York Supreme

VERDICT: $3,210,000 plus $400,000 for stipulated cost of past care and maintenance. Breakdown: $100,000 for past pain and suffering; $100, 000 for future pain and suffering; $3,000,000 for future maintenance; $10, 000 for husband for loss of services. Jury: 3 male, 3 female.

In an oral post-trial decision on 2/7/94, Judge Gammerman increased the awards for past and future pain and suffering to $1,000,000, noting that the original awards were “clearly inadequate.” Transcript at p. 6.

Pltf. Atty: Arthur R. Rosenbaum of Barr & Rosenbaum, Spring Valley

Deft. Atty: Jay A. Rappaport of Aaronson, Rappaport, Feinstein & Deutsch, Manhattan

Facts: Pltf., age 34 at the time of the incident on 7/17/84, was a diagnosed schizophrenic. She had been hospitalized previously at other hospitals and had been a patient at Deft. Beth Israel from 4/4-4/29/84. She began suffering from auditory command hallucinations, and her sister, with whom she was living at the time, brought her to Deft. Beth Israel Hospital on 6/27/84. Pltf. remained there until 7/17/84, when she was discharged to her sister’s care. Two hours after she was discharged, Pltf. attempted suicide by jumping from her sister’s fifth floor fire escape.

Pltf. contended that Deft. negligently discharged her before determining if her medication was having its proper therapeutic effect. Pltf. had received oral Prolixin 70 mg for 7 days. This medication was stopped on 7/14/84, and on 7/15, she was given an injection of Prolixin Decanoate 50 mg. Pltf.’s expert testified that Deft. did not give an injectable dosage equivalent to the oral medication that she had been taking, contending that the dose should have been substantially more. Pltf.’s expert also contended that the injection of Prolixin would not have had any therapeutic effect until 48-96 hours after it was given. The oral Prolixin would only have had a therapeutic effect for 24 hours after her last dose at 6 PM on 7/14/84. Pltf. contended that Deft. was negligent for failing to monitor her for a longer period of time before her discharge.

Deft. Dr. Schwartz denied that he was negligent. It was also noted that on 7/13/84, the nurses, support staff, and social workers at Beth Israel went on strike.

The jury did not find that Pltf. was prematurely discharged based upon her psychological condition, but they did find that Deft. negligently failed to monitor Pltf. to determine the therapeutic effect of her medication before her discharge. Injuries: paraplegia; above-the-knee amputation of the right leg; multiple fractures of the arms and left leg; complete bowel and bladder incontinence. At the time of trial, Pltf. was institutionalized in a County nursing facility. Pltf.’s vocational rehabilitation expert testified that she required institutional care, although he contended that she could be attended at home with round-the- clock nursing care. Pltf. Experts: Dr. Allan Tuckman, psychiatrist, Pomona; Dr. Sidney M. Cohen, neuropsychiatrist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Richard Ruth, economist, Summit, New Jersey. Deft. Expert: Dr. Robert Chalemian, psychiatrist, Bellevue Hospital.

Carmen Garcia and David and George Garcia, infs. v. City of New York

LOSS OF ONE EYE AND PSYCHOLOGICAL INJURIES

Kings, NY

Settled for a total of $3,620,000.

$3,620,000

IX/6-26 MOTOR VEHICLE — CROSS OVER CENTER MEDIAN — WRONGFUL DEATH — LOSS OF ONE EYE AND PSYCHOLOGICAL INJURIES

SETTLEMENT: Carmen Garcia as Adm. of the Est. of Edward and Louisa Garcia and David and George Garcia, infs. v. City of New York, David Paris, and NJC Towing & Collision, Inc. 8126/88 Date of Settlement 6/27/91 Judge Aaron D. Bernstein, Kings Supreme

Pltf. Atty: Richard C. Bell, Manhattan

Deft. Atty: Steven J. Harkavy of Leahey & Johnson, Manhattan, for Paris

This action settled after 7 weeks of trial for a total of $3,620,000. The accident occurred on 12/14/86 at 3 PM on the Interboro Pkwy., 75 feet east of the intersection of Crosby Ave. in Brooklyn.

Decedent Edward Garcia was driving a vehicle in which his wife, Louisa, and their two children, David and George, were passengers. Evidence indicated that Deft. Paris lost control of his car, struck the median barrier, and crossed over into the Garcias’ lane, striking their car. Paris was later convicted of driving while impaired.

Pltf. contended that the barrier was improperly designed and that the Deft. City should have replaced it with a Jersey-type barrier. Pltf.’s key contention was that an adequate barrier would have redirected Paris’ car back onto his side of the roadway, rather than allowing him to cross over the center line. The City contended that although the State of New York was in the process of changing the barriers on the roadway to Jersey- type barriers, even that type of barrier would not have prevented this accident. The City also contended that Paris’ alcohol impairment was the proximate cause of the accident, and argued that due to his criminal conviction, his intoxication, as a matter of law, caused the accident. Paris claimed that he lost control of his car because NJC Towing, which had repaired the steering in his car 1 month before this accident, did so improperly. Note: There had been one fatal accident at this site in the year before the trial.

Injuries: George (age 9 at the time $1,527,500): loss of one eye; partial loss of hearing; severe facial deformity requiring plastic surgery and dental reconstruction surgery; psychological injuries. David (age 6 $ 417,500 settlement): severe psychological injuries (having witnessed his parents’ deaths). Edward Garcia, a 33-year-old account representative, and his wife, Louisa, a 32-year-old receptionist, died instantly. Edward’s and Louisa’s estates each received settlements of $837,500. Demonstrative evidence: models of the head, eye, and ear; prosthetic eye; blowups of the accident scene; a Jersey-type barrier. Pltf. Experts: Joseph Champagne, engineer, highway design, Champagne Assoc., New Rochelle; Dr. Stephen Sacks, otolaryngologist, Manhattan; Dr. John Mitchell, ophthalmologist, Manhattan; Dr. Howard Cooper, plastic surgeon, Manhattan; Dr. Eric Gibbs, orthodontist, Manhattan; Dr. Ellen Sobo, treating psychologist, Bronx (for George); Dr. Ari Kiev, psychiatrist, Manhattan; Henry Gougleman, oculist, Manhattan; James Cavanaugh, auto mechanic and engineer, Brooklyn; Dr. Conrad Berenson, Ph.D., economist, Woodbury; Audrey Redsten, psychiatric nurse, Bronx (for David); Conrad Kendall, engineer with the City of New York (testified on Interboro cases); Dr. Tamara Bloom, New York City medical examiner; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Donald Cleveland, Ph.D., traffic engineer, accident reconstruction, Ann Arbor, Michigan; Steven Coulon, accident reconstruction, Bronx; Dr. Ted Becker, psychiatrist, Manhattan; Gerald Renninger, engineer with the City of New York (testified on Interboro cases); Dr. Thomas Manning, toxicologist, Nassau County Medical Center; Dr. Daniel Young, toxicologist (on alcohol impairment). Settlement apportionment: The City paid $3,350,000; NJC Towing paid $150, 000; Paris paid $120,000.11

Jesse Spellman v. New York City Transit Authority

BILATERAL ABOVE-THE-KNEE AMPUTATIONS

Day laborer

Bronx, NY

$3,677,007. Breakdown: $2,000,000 for past pain and suffering; $57,007 for past medical expenses; $1,000,000 for future pain and suffering; $500,000 for home aid; $75,000 for home furnishings?

$3,677,007.00

XIII/8-7 SUBWAY ACCIDENT PASSENGER MUGGED AND THROWN TO TRACKS MOTORMAN FAILS TO STOP TRAIN IN TIME BILATERAL ABOVE-THE-KNEE AMPUTATIONS

Jesse Spellman v. New York City Transit Authority 15678/92 3-week trial Verdict 5/1/95 Judge Bertram Katz, Bronx Supreme

VERDICT: $3,677,007. Breakdown: $2,000,000 for past pain and suffering; $57,007 for past medical expenses; $1,000,000 for future pain and suffering; $500,000 for home aid; $75,000 for home furnishings; $45, 000 for modification of residence. Post-trial motions were denied. Jury: 3 male, 3 female. Notice of Appeal by Deft.

Pltf. Atty: Alan M. Shapey of Harry H. Lipsig & Partners, Manhattan

Deft. Atty: Jeffrey Samel, Manhattan

Facts: Pltf., a 43-year-old day laborer, claimed that on 3/18/91 at 10 PM he was waiting for a train at the 170th St. IRT Number 4 station when he was mugged. Pltf. testified that he was unable to recall the incident, but theorized that he was hit by the train after he was thrown to the track approximately 400 feet from where the train enters the station. Pltf. claimed that the evidence indicated that he entered the station with money, identification, and a black bag, none of which was seen at the location or recovered by the police. There was also evidence that Pltf. sustained a laceration on the back of his head. Pltf. produced medical records indicating that he made a statement that he had been chased and robbed at the station. The motorman testified at his deposition that he saw what looked like a jacket on the tracks, but that he did not attempt to stop the train until he saw the jacket move. Pltf. contended that the motorman had the time and distance to stop the train and that he should have stopped as soon as he saw something on the tracks.

Deft. argued that Pltf. had a high blood alcohol content at the time of the incident, which caused him to fall to the tracks. Pltf. admitted that he had a drinking problem in the past. Deft. produced witnesses who testified that Pltf. still had a drinking problem at the time of the incident. Deft. claimed that Pltf. made several contradictory statements at the hospital as to how the incident occurred, and that in one of his statements he admitted that he had been drinking.

Injuries: bilateral above-the-knee amputation. Pltf. was confined to a wheelchair and requires 12-hour-a-day care. Deft. contended that Pltf. was in a homeless shelter at the time of the incident and did not require as much care as he claimed. Demonstrative evidence: expert’s charts of life care plan for Pltf.; photos of Pltf.’s stumps.

Note: Judge Katz found that Deft. NYCTA failed to disclose photographic evidence, struck Deft.’s answer, and entered judgment on liability. A 50B hearing is pending. No offer; demand: $7,500,000. Jury deliberation: 5 hours. Pltf. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Les Seplaki, economist, New Jersey. Deft. Expert: Dr. Malcolm Reid, rehabilitative medicine, Manhattan.

Michael Perrone v. Joseph Savarese Real Estate Corp. v. M&Q Restaurant Corp. d/b/a Urbino

HERNIATED AND BULGING DISCS

Produce manager for a supermarket

New York, NY

This case settled after jury selection for $550,000, plus the waiver of a $175,000 Workers Compensation lien

$550,000.00

XIV/37-34 FALLDOWN STAIRS HERNIATED AND BULGING DISCS

SETTLEMENT: Michael Perrone v. Joseph Savarese Real Estate Corp. v. M&Q Restaurant Corp. d/b/a Urbino 10905/91 Date of Settlement 2/7/97 New York Supreme

Pltf. Atty: Jeffrey M. Rich of Rich & Rich, Manhattan

This case settled after jury selection for $550,000, plus the waiver of a $175,000 Workers Compensation lien. Pltf., a 40-year-old produce manager for a supermarket, claimed that he was injured on 5/8/89 at approximately 10:30 AM when he fell on a staircase leading from a basement storage area of Deft. s premises to the sidewalk. At the time of the accident, Pltf. was working at a supermarket located in an adjoining building and had gone into Deft. s basement to locate plastic milk crates with which to build a display. He fell while walking up the stairs with two or three milk crates in his hands. Pltf. would have claimed that the stairs were defective and that he fell because a piece of a steel bull nose over the worn edge of the concrete step was missing. Deft. would have argued that Pltf. fell at a different location, that the fall was caused by his own negligence, and that the stairs were not defective.

Injuries: herniated discs ac C3-4, C4-5, C5-6, L2-3 and L4-5; bulging discs at L2-3, L3-4, L4-5 and L5-S1; psychological injuries, including marked depression as a result of not being able to work. Pltf. claimed that he is permanently disabled. Deft. claimed that Pltf. s injuries were pre-existing and not the result of this accident. Demonstrative evidence: Pltf. would have introduced MRI films; CAT scans; photos of the accident scene; spinal model. Carriers: Aetna/Travelers for Savarese Real Estate Corp.; Greater New York Ins. Co. for M&Q. Pltf. Experts: Pltf. would have called Stanley Fein, engineer, Plainview; Dr. Stanley Ross, orth. surg., Forest Hills; Dr. Carlisle St. Martin, neurologist, Forest Hills; Dr. Arthur Sternberg, psychiatrist, Forest Hills; Edmond Provder, vocational rehabilitation, Manhattan; Irwin Stricker, economist, Merrick. Deft. Experts: Deft. would have called Dr. Murray Burton, orth. surg., Manhattan; Dr. Ralph Olson, neurosurgeon, Manhattan; Morris Ehrenreich, Ph.D., vocational rehabilitation, Manhattan; John Garretto, engineer, Rockville Centre; Thomas Fitzgerald, economist, Mt. Vernon; Dr. Mark Rubinstein, psychiatrist, Manhattan.

Courtney and Gwennette Monsanto v. JKB Contracting, Inc. and Colin Miller

ABOVE-THE-KNEE AMPUTATION

Hospital admitting clerk

Kings, NY

This action settled after opening statements for $3,710,000.

$3,710,000.00

XVIII/28-41 MOTOR VEHICLE BICYCLE ABOVE-THE-KNEE AMPUTATION

SETTLEMENT: Courtney and Gwennette Monsanto v. JKB Contracting, Inc. and Colin Miller 22554/99 Date of Settlement 11/21/00 Kings Supreme

Pltf. Atty: Jeff S. Korek of Gersowitz, Libo & Korek, P.C., Manhattan

Deft. Atty: Joseph T. Jednak of Koors & Jednak, Bronx

This action settled after opening statements for $3,710,000. Pltf., a 46-year-old hospital admitting clerk, was riding a bicycle on 6/19/99 on Troy Ave. when he was hit by Deft. s pickup truck at the intersection of Bergen Street in Brooklyn. Pltf. claimed that Deft. Miller, driving Deft. JKB s truck, drove through a red light. Deft. claimed that Pltf. rode his bicycle off the sidewalk and into his lane of traffic, and that he had no time to avoid the accident.

Injuries: crush fractures of the femur, tibia, and fibula, requiring an above-the-knee amputation of the right leg; fractured clavicle; keloid scarring to the hands. Pltf. underwent seven procedures on the leg, ultimately leading to the amputation. He first underwent open reduction and external fixation, then required a below-the-knee amputation. The leg became gangrenous, and Pltf. underwent an above-the-knee amputation. He uses a prosthesis, and expects to return to work. Pltf. would have testified that he suffers from phantom pain in the leg. Demonstrative evidence: enlargements of anatomy illustrations; X-ray; aerial photographs of the intersection. Specials: $500,000 for future medical expenses including changing the prosthesis and ongoing medical treatment; $300,000 for lost earnings. Carriers: State Farm (first $1,000,000); Liberty Mutual (excess $3,000,000 policy).

Pltf. Experts: Pltf. would have called Edmond Provder, vocational rehabilitation, Manhattan; Jeffrey Sidenberg, economist, Bronx; Dr. Jerry Lubliner, orth. surg., Manhattan.

Deft. Experts: Dr. Robert Orlandi, orth. surg., Brooklyn; Dr. Ralph Liebling, plastic surgeon, Bronx; Dr. Solomon Mishkin, psychiatrist, Elmont; Joseph Pessalano, vocational rehabilitation, Westbury.

Gurmeet Singh and Surinder Kaur v. Thomas Alfano and MetLife Investments / Bahadur Singh, Harbinder Kaur, Sukhwant Singh, Jagdev Kaur, Jaib Singh, Mandee Kaur and Gurmeet Singh v. Thomas Alfano and MetLife Investments

SPINE INJURIES

Taxi Driver

Mercer County, New Jersey

The jury found that Bahadur Singh had sustained a permanent injury under the verbal tort threshold and was awarded $856,000 in damages. Singh’s wife, Harbinder Kaur, received $22,000 for her loss of consortium claim. Their combined total award was $878,000. However, the jury also found that Singh’s failure to undergo fusion surgery constituted contributory negligence of 40 percent.

The $878,000 damages award was reduced by 40 percent, to $526,800.

The award was to be paid by Alfano’s insurer, Liberty Mutual Insurance Co.

The jury returned no cause of action verdicts for Sukhwant Singh and Ajaib Singh, in favor of the defense.

$526,800

On April 15, 2010, plaintiff Bahadur Singh, a taxi driver in his 50s, was the front-seat passenger in a vehicle heading south on the New Jersey Turnpike, near Robbinsville Township. In the back seat were plaintiffs Sukhwant Singh and Ajaib Singh, also taxi drivers. The car’s driver was Gurmeet Singh.

The Singhs were traveling in the left lane of the turnpike when another vehicle attempted to pass a truck and moved from the right lane into the left lane, rear-ending them. The Singhs claimed multiple spine injuries.

Bahadur Singh, Sukhwant Singh, and Ajaib Singh sued the driver of the other vehicle, Thomas Alfano, alleging that he had been negligent in failing to avoid the collision. Alfano’s employer, MetLife Investments, was named as a defendant, since Alfano had been driving in his capacity as an employee.

(The lawsuit was consolidated with another suit brought by Gurmeet Singh and his wife against Alfano and MetLife, which was settled several months prior to trial, for $25,000.)

Counsel for Alfano conceded liability, prior to trial.

Sean Nicholson v. Structure Tone Inc, Pavarini Construction Co Inc, Pavarini McGovern LLC

BACK AND ELBOW INJURIES

Union-affiliated Carpenter

Bronx, New York

The parties negotiated a pretrial settlement. The first-party defendants’ insurer tendered its policy, which provided $1 million of coverage, and Commodore Construction’s insurer agreed to pay $2.9 million, from a policy that provided $10 million of coverage. Thus, the settlement totaled $3.9 million.

$3,900,000

On March 15, 2010, plaintiff Sean Nicholson, a union-affiliated carpenter in his late 30s, worked at a renovation site that was located at 1290 Sixth Ave., in Manhattan. Nicholson was installing devices that supported a door. During the course of that task, he fell off of a scaffold. He fell a distance of about four feet, and he landed on a floor. He claimed that he sustained injuries of his back and an elbow.

Nicholson sued the renovation project’s general contractor, Structure Tone Inc.; two related entities, Pavarini Construction Co. Inc. and Pavarini McGovern, LLC; and the premises’ owners, 555 1290 Holdings LLC, HWA 1290 III LLC, HWA 1290 IV LLC and HWA 1290 V LLC. Nicholson alleged that the defendants violated the New York State Labor Law.

The defendants impleaded Nicholson’s employer, Commodore Construction Group. The first-party defendants alleged that Commodore Construction controlled and directed Nicholson’s work functions.

Plaintiff’s counsel discontinued the claims against Pavarini Construction and Pavarini McGovern. The matter proceeded against the remaining defendants.

Nicholson claimed that the scaffold was not secure. As such, he contended that the device did not provide a safe means of performing the work that he had undertaken. Plaintiff’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Nicholson was not provided the proper, safe equipment that is a requirement of the statute.

Plaintiff’s counsel moved for summary judgment of liability, and the motion was granted. The matter proceeded to damages.

Mark Campbell v. City of Elmira

FRACTURE OF DOMINANT ARM AND WRIST

Self-employed outboard motor repairman

Chemung, NY

$500,000 (6/0).

$500,000 (6/0).

X/21-18 MOTOR VEHICLE MOTORCYCLE COLLIDES WITH FIRE TRUCK THAT DROVE THROUGH RED LIGHT OBSTRUCTED VIEW FRACTURE OF DOMINANT ARM AND WRIST

Mark Campbell v. City of Elmira 3498/88 5-day trial Verdict 7/24/92 Judge William N. Ellison, Chemung Supreme

VERDICT: $500,000 (6/0). Breakdown: $21,319 for medical expenses; $ 55,000 for lost earnings; $75,000 for past pain and suffering; $153,381 for future pain and suffering (42 years); $55,000 for past impairment of earning ability; $139,000 for future impairment of earning ability (28 years). Post-trial motions were denied. Notice of Appeal by Deft.

Pltf. Atty: David J. Clegg, Kingston

Deft. Atty: John L. Perticone of Levene, Gouldin & Thompson

Facts: Pltf., a 25-year-old self-employed outboard motor repairman, claimed that on 8/12/86 he was driving his motorcycle when he struck the side of a fire truck which went through a red light. The accident occurred at the intersection of Clemenson Center Pkwy. and Second Ave. in Elmira. Pltf. claimed that he was driving southbound on Clemenson Center Pkwy. and was in the left lane. Pltf. claimed that as he approached the intersection, the light changed to green and that he proceeded through the intersection at 25-30 mph. Pltf. did not see Deft. ‘s fire truck enter the intersection until it was too late to stop and collided with it. Pltf. contended that he did not see the lights or hear the siren because he was wearing a full face motorcycle helmet. Pltf. contended that there was a line of trees and a parking lot filled with trucks and cars on the northwest corner of the intersection which obstructed his view of the oncoming traffic. Pltf. applied the brakes when he saw Deft.’s truck and struck the side of the truck close to the rear tire. Pltf. claimed that he was faced with an emergency situation. He also contended that the driver did not observe traffic and did not look when he entered the intersection.

Deft. contended that it was an emergency vehicle and was entitled to the right-of-way. It contended that the truck had on its flashing lights and siren to warn other drivers. Deft. was responding to a call at a local County jail. Deft. also contended that in order for it to be liable, the driver would have to show reckless disregard for the safety of other drivers. Deft. claimed that there were cars stopped when it approached the intersection. The truck was 200 feet from the intersection when the driver last looked at the light. The driver testified that cars were still stopped at the intersection when he approached and that he proceeded through the intersection at a speed of approximately 10-15 mph. He also testified that he slowed down as he proceeded through the intersection. A fireman sitting in the rear of the truck testified that the driver accelerated as he proceeded through the intersection. Deft. contended that its personnel acted reasonably under the circumstances.

Injuries: comminuted displaced radius and ulnar fracture of the right ( dominant) arm; fractured right wrist. Pltf. had gone back to work in Spring 1987 until Fall 1987 when he underwent surgery for fusion of the wrist. He went back to work May 1988 at limited capacity. Deft. contested that the lost income claim was not valid because Pltf. was working at the time of trial. Demonstrative evidence: photographs; rehabilitative implements; motorcycle helmet. Offer: $40,000; demand: $ 300,000. Jury deliberation: 3? hours. Pltf. Experts: Thomas Kershner, economist, Schenectady; Edmond Provder, rehabilitative medicine, Manhattan; Dr. William Bishop, orth. surg., Elmira; Sandy Robinson, occupational therapist. There was no expert testimony for Deft.

Joseph and Shelly Dawson v. Pavarini Construction Co. and Islandia Center Assoc.

FRACTURED WRIST AND PELVIS; HERNIATED AND BULGING DISCS

Iron worker

NY

$3,912,329 for Joseph D. (6/0).

$3,912,329.00

XIV/14-1 SCAFFOLD ACCIDENT LABOR LAW IRONWORKER FALLS 20 FEET FRACTURED WRIST AND PELVIS; HERNIATED AND BULGING DISCS DAMAGES TRIAL

Joseph and Shelly Dawson v. Pavarini Construction Co. and Islandia Center Assoc. 477/92 7-day trial Verdict 9/18/96 Judge Howard Berler, Suffolk Supreme

VERDICT: $3,912,329 for Joseph D. (6/0). Breakdown: $400,000 for past pain and suffering; $600,000 for future pain and suffering; $313,500 for past loss of earnings; $2,598,829 for future lost earnings (22 years).

$100,000 for Shelly D. for loss of services. Breakdown: $11,000 for past loss of services; $89,000 for future loss of services. Post-trial motions were denied. Jury: 4 male, 2 female.

Note: Pltf. was granted summary judgment under Labor Law ? 240 in December 1994, which was appealed and affirmed. Dawson v. Pavarini Construction Co., et al., 644 N.Y.S.2d 285 (A.D.2 Dept. 1996). Deft. Islandia was granted summary judgment against Third-party Defts.

Pltf. Atty: Edward J. Donlon of Congdon, Flaherty, O Callahan, Reid, Donlon, Travis & Fishlinger, Garden City

Deft. Atty: Alan I. Korn for Steven L. Sidney, Woodbury, for Pavarini Construction

Edward G. Lukoski of Ahmuty, Demers & McManus, Albertson, for Islandia Center Assoc.

Facts: Pltf., a 30-year-old iron worker, claimed that he was injured on 2/19/91 while working at a construction site at Computer Associate s world headquarters in Islandia. Deft. Pavarini Construction was the general contractor and Deft. Islandia Center Assoc. owned the property on which the building was being constructed. Pltf. claimed that he was working on a canopy, which consisted of ornamental metal, when he fell 20-30 feet, causing his injuries. Pltf. was granted summary judgment against both Defts. in December 1994, which was appealed and affirmed. Dawson v. Pavarini Construction Co., et al., 644 N.Y.S.2d 285 (A.D.2 Dept. 1996). This trial was on damages only.

Injuries: fractured right (dominant) wrist requiring fusion surgery; fractured pelvis; herniated discs at L5-S1; bulging discs at C2-3 through C6-7, with extruded disc material at C3-4. Pltf. has not returned to work since the accident, and claims that he is unable to return to work. Deft. argued that Pltf. s wrist fracture and the pelvis fracture have healed perfectly. Pltf. contended that the pelvis fracture still causes him pain, and testified that he wears an S-1 Belt for back support. Demonstrative evidence: medical models of the spine; X-rays of pelvis; enlargements of hospital records. No offer; demand: $4,200,000; amount asked of jury: $20, 000,000. Jury deliberation: 4 hours. Carrier: CIGNA. Pltf. Experts: Dr. Isaac Cohen, treating orth. surg., Rockville Centre; Dr. Steven Green, hand surgeon, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Veronica Gasko, chiropractor, West Islip; Conrad Berenson, Ph.D., economist, Woodbury. Deft. Expert: Dr. David Leivy, neurosurgeon, Huntington.

Francisco Lalin v. Plymouth Beef Co., Inc.

HAND AMPUTATION

Machine Cleaner

Bronx, New York

After selection of a jury, but prior to the scheduled start of trial, the parties negotiated a settlement. Plymouth Beef’s primary insurer tendered its policy, which provided $1 million of coverage; Plymouth Beef’s excess insurer agreed to pay $1 million; and Santos Cleaning’s insurer agreed to pay $2 million. Thus, the settlement totaled $4 million. Santos Cleaning also waived its workers’ compensation lien.

$4,000,000

During the evening of Jan. 5, 2011, plaintiff Francisco Lalin, 51, a machine cleaner, worked at a meat processing facility that was located at 355 Food Center Drive, in the Hunts Point section of the Bronx. During the course of his work, he attempted to clean a meat-grinding machine. The machine spontaneously activated while Lalin was removing interior components. His left hand became trapped within the grinding area, and he suffered an injury that necessitated amputation of the hand. He also suffered injuries of an arm, his back, his neck and a shoulder.

Lalin sued the facility’s operator, Plymouth Beef Co. Inc. Lalin alleged that Plymouth Beef negligently failed to provide a safe workplace. He further alleged that Plymouth Beef’s negligence created a dangerous condition that caused the accident.

Plymouth Beef impleaded Lalin’s employer, Santos Cleaning Corp. Plymouth Beef alleged that Santos Cleaning was negligent in its supervision and training of Lalin. Plymouth Beef further alleged that Santos Cleaning’s negligence caused the accident.

Lalin’s counsel contended that the machine’s sudden activation was likely a result of Lalin having inadvertently stepped on a pedal that controlled the machine. The pedal was an aftermarket device installed by Plymouth Beef, as an alternative to side-mounted control buttons that had been installed by the machine’s manufacturer. Lalin’s counsel contended that the pedal lacked panels or any other shield that could have prevented unintentional use of the pedal. Lalin’s counsel further contended that the pedal should have been removed prior to the arrival of Lalin or any other maintenance worker. He contended that Plymouth Beef violated an Occupational Safety and Health Administration guideline requiring pre-maintenance disengagement of the machine’s power supply.

Santos Cleaning’s counsel agreed that Plymouth Beef should have deactivated the machine’s power prior to Lalin’s arrival.

Plymouth Beef’s counsel contended that Lalin and Santos Cleaning were responsible for deactivating the machine prior to maintenance. He claimed that Lalin’s training included the use of similar machines, that Lalin, therefore, had known that the machine required deactivation prior to maintenance and that Lalin could have simply unplugged the machine. He further claimed that a co-worker had offered to demonstrate proper disassembly of the machine, but that Lalin declined the assistance.

Plymouth Beef’s counsel also argued that Lalin should have been aware of the pedal’s presence.

Nicolas Guaman & Paula Mayancela v. 1963 Ryer Realty Corp. & A Saad Contracting, Inc.

INJURIES OF THE AORTA, ARM, BACK, ELBOW, HEAD, LUNGS, NECK, PELVIS AND 10 RIBS

Laborer

Bronx, New York

The parties negotiated a pretrial settlement. AP TEK Restoration’s insurer agreed to pay $3 million, and the insurer of 1963 Ryer Realty and Gazivoda Realty–though fully indemnified by AP TEK Restoration’s insurer–tendered its policy, which provided $1 million of coverage. Thus, the settlement totaled $4 million. The settlement also included a waiver of the workers’ compensation lien. A Saad Contracting’s insurers disclaimed coverage and did not contribute. The settlement’s negotiations were mediated by Allen Hurkin-Torres, of Jams.

Guaman’s counsel reported that the settlement preserved 1963 Ryer Realty’s real estate equity, which approximated $2 million.

$4,000,000

On Aug. 18, 2010, plaintiff Nicolas Guaman, 28, a laborer, worked at a renovation site that was located at 1963 Ryer Ave., in the Mount Hope section of the Bronx. During the course of his work, Guaman fell off of a scaffold that was suspended alongside a building’s exterior façade. He plummeted six stories, and he landed on an asphalt surface. Guaman sustained injuries of his aorta, an arm, his back, an elbow, his head, his lungs, his neck, his pelvis, his sacrum, his spleen, 10 ribs and a wrist.

Guaman sued the premises’ owner, 1963 Ryer Realty Corp.; the premises’ manager, Gazivoda Realty Co. Inc.; and the renovation project’s general contractor, A Saad Contracting Inc. Guaman alleged that the defendants violated the New York State Labor Law.

The defendants impleaded Guaman’s employer, AP TEK Restoration Inc. The first-party defendants alleged that AP TEK Restoration controlled and directed Guaman’s work functions. They sought indemnification.

Guaman claimed that the scaffold tipped when a ground-based worker prematurely released one of the scaffold’s two suspension ropes. Guaman’s counsel contended that the scaffold’s platform should have been protected by a railing.

Guaman also claimed that the accident occurred before he was able to tie himself to a secure point. He was wearing a safety harness and was attached to a safety line, but he claimed that his harness’s latch malfunctioned and disengaged.

Guaman’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Guaman was not provided the proper, safe equipment that is a requirement of the statute. Guaman’s counsel also contended that the defendants violated Labor Law § 200, which defines general workplace-safety requirements.

The direct defendants’ counsel contended that Guaman’s injuries were a result of Guaman having failed to properly engage his safety harness.

AP TEK Restoration’s counsel claimed that his client was not involved in the renovation project. He claimed that Guaman’s participation stemmed from a private agreement negotiated by A Saad Contracting and Guaman’s foreman.

Guaman’s counsel moved for summary judgment of liability, and the motion was granted. Judge Norma Ruiz found that the defendants violated Labor Law § 240(1). Ruiz also ruled that AP TEK Restoration had to fully indemnify 1963 Ryer Realty and Gazivoda Realty. The matter proceeded to damages.

Eugene Krein v. Stewart Kaufman

NEGLIGENT USE OF RODS EXTERNAL ROTATION OF ONE FOOT

Laborer

Greene, NY

Breakdown: $65,000 for past pain and suffering ; $248,000 for future pain and suffering; $187,000 for lost earnings.

$500,000.00

XI/21-25 MEDICAL MALPRACTICE TREATMENT OF LEG FRACTURE NEGLIGENT USE OF RODS EXTERNAL ROTATION OF ONE FOOT

Eugene Krein v. Stewart Kaufman 90-172 9-day trial Verdict 5/20/93 Judge John G. Connor, Greene Supreme

VERDICT: $500,000. Breakdown: $65,000 for past pain and suffering ; $248,000 for future pain and suffering; $187,000 for lost earnings.

Pltf. Atty: Victor L. Mazzotti of Roemer & Featherstonhaugh, Albany

Deft. Atty: Forrest N. Case, Jr. of Carter, Conboy, Bardwell, Case, Blackmore & Napierski, Albany

Facts: Pltf., a laborer in his mid 40s at the time, suffered a displaced fracture of the distal shaft of the right tibia and fibula when he fell from a ladder in 1989. Deft. orthopedist inserted two Rush rods to stabilize the fracture and applied a cast. Six days later, he wedged the cast to align the fracture. Pltf. suffered pressure necrosis of the right tibia and subsequently developed an infection in his right leg. He underwent two surgical procedures, and was left with a 25? external rotation of the right foot and a slight limp.

Pltf. contended that Deft. should not have inserted Rush rods because these devices did not provide rotary stability. He also contended that the rods were inserted negligently, causing the tibia to fracture further. Finally, Pltf. argued that the wedging of the cast contributed to the development of the infection. Pltf.’s expert testified that Deft. should have used a plate and screws to stabilize the fracture.

Pltf. claimed that he missed 2 years of work. He was earning $16,000 per year at the time. Pltf. Experts: Dr. Donald Paish, orth. surg., Glens Falls; Dr. Edward Pasquarella, orth. surg., Gloversville; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Dr. Arsen Pankovich, orth. surg., Manhattan; Dr. James Tillotson, infectious diseases, Albany.

Michael Plaszczymaka and Lilla Plaszczymaka v. Lei Fu

LEG AMPUTATION, ROTATOR CUFF INJURY

HVAC Foreman

Somerset County, NJ

The parties agreed to a $4.3 million pre-trial settlement. The settlement was paid from Fu’s $500,000 primary policy with New Jersey Manufacturers Insurance Co. and a $5 million excess policy with Federal Insurance Co.

$4,300,000

On Sept. 20, 2015, plaintiff Michael Plaszczymaka, 55, a heating, ventilation, and air-conditioning (HVAC) foreman, was riding a motorcycle north on Minebrook Road in Bernardsville. At the same time, a vehicle driven by Lei Fu was waiting at a stop sign, facing west on Whiteknack Road.

As Plaszczymaka entered the intersection with Whiteknack Road, Fu pulled forward in an attempt to make a left turn and struck the right side of Plaszczymaka’s motorcycle. Plaszczymaka claimed injuries to his right leg and right shoulder and psychological trauma.

Plaszczymaka sued Fu, alleging he was negligent in the operation of a vehicle. Specifically, he alleged that Fu failed to yield to oncoming traffic before attempting a left turn.

Fu denied liability, arguing that Plaszczymaka was speeding, which caused the collision.

Debra Esteves v. New York City Housing Authority

NEUROLOGICAL IMPAIRMENT

Student

Kings, NY

$500,000 (5/1).

$500,000.00

XV/25-12 LEAD POISONING INFANT EXPOSED TO PEELING PAINT IN APARTMENT NEUROLOGICAL IMPAIRMENT

Debra Esteves v. New York City Housing Authority 4311/89 1-week trial Verdict 11/20/97 Kings Supreme

Judge: Martin Schneier

Verdict: $500,000 (5/1). Breakdown: $5,000 for past pain and suffering; $100,000 for future pain and suffering; $130,000 for lost earnings; $265,000 for future medical expenses. Post-trial motions were denied. Jury: 2 male, 4 female.

Pltf. Atty: Stephan H. Peskin of Tolmage, Peskin, Harris & Falick, Manhattan

Deft. Atty: Alan Kaminsky of Wilson, Elser, Moskowitz, Edelman & Dicker, Manhattan

Facts: Pltf. claimed that she contracted lead poisoning when she was 1 year old after ingesting peeling lead paint at the Brooklyn apartment where she resided with her family in 1981. Pltf. was a 17-year-old student at the time of trial. Deft. was the owner of the apartment building. Pltf. claimed that in 1982 Deft. was issued a violation by the Department of Health after the apartment tested in excess of acceptable limits. Deft. contended that even though it was issued a violation, the testing done by the Department of Health was erroneous, and argued that the testing did not take substrate corrections into consideration. Deft. contended that if the testing had been done correctly, the findings would not have warranted a violation.

Injuries: Pltf. was found to have an elevated blood lead level of 51 mg/dl in 1982 at 2 years of age. She tested at 39 mg/dl later that year, and subsequently her level was measured at between 20 and 30 mg/dl in 1984. She suffers from significant neurological impairment, and has been enrolled in special education classes. At trial, Pltf. exhibited uncontrollable shaking, a trait attributable to lead poisoning. Pltf. s expert testified that she will never be able to find gainful employment. Deft. disputed this finding, and claimed that Pltf. is employable. Deft. further argued that Pltf. s medical condition was not attributable to lead paint poisoning and contended that it was not uncommon to have high lead levels in the early 1980s. Demonstrative evidence: Department of Health records; employment charts. No offer; amount asked of jury: in excess of $1, 000,000. Jury deliberation: 8? hours.

Pltf. Experts: Dr. Marsha Knight, psychologist, Manhattan; Dr. John Rosen, neurologist, Bronx; Dr. Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Expert: There was no expert testimony for Deft.

Elnaham v. Waterman Steamship Corp.

SEVERE INJURY TO DOMINANT HAND

Seaman

New York, NY

$5,700,000, reduced as excessive to $4,700,000 (6/0).

$4,700,000.00

VII/6-1 MARITIME ACCIDENT – JONES ACT – VERDICT FOR SEVERE INJURY TO DOMINANT HAND

Elnaham v. Waterman Steamship Corp. 15807 9-day trial Verdict 10/12/88 Judge Edward J. Greenfield, New York Supreme

VERDICT: $5,700,000, reduced as excessive to $4,700,000 (6/0). Breakdown: $1,700,000 for lost wages; $4,000,000 for pain and suffering. Subsequently settled for an undisclosed amount.

Pltf. Atty: Paul C. Matthews, Manhattan

Deft. Atty: James W. Lynch and Richard J. Reisert of Burlingham, Underwood & Lord, Manhattan

Facts: Pltf. was a 50-year-old seaman on the date of the accident on 4/28/83. The incident occurred on the S.S. Robert E. Lee in Columbo, Sri Lanka. Pltf., born in Yemeni, is a naturalized American citizen.

While the ship was offloading barges laden with cargo, Pltf.’s hand became caught between one of the barges and the hull of the ship. Pltf. brought this action under the Jones Act and General Maritime Law for pain and suffering and lost wages.

Injuries: severe crush injury to the right dominant hand resulting in degloving, severing of the ulnar artery, and compound fractures of four fingers. Pltf. required six surgical procedures and skin grafting. Testimony indicated that Pltf. will be in pain for the rest of his life. Pltf. also suffered from psychological injuries including depression. Pltf. contended that he was unable to return to work at all. He claimed lost earnings based on his prior occupation as an automobile assembly line worker. He had been called back from a lay-off after the injury, but was found unfit to return to the assembly line. He also claimed that he was unable to perform any manual labor, the only appropriate work available to him with his limited education. Pltf. also called an expert who performed psychological tests which showed that his IQ had diminished to such an extent after the accident that he was a poor candidate for retraining for any future employment. Deft. argued that Pltf. was educable and could be trained for a new occupation.

Note: This was the second trial of this action. At the first trial, Pltf. was awarded $150,000, reduced to $37,500 for 75% comparative negligence. The vessel in that case had been found seaworthy. At this second trial, there was a surprise witness who testified, over objection, to facts surrounding the accident. Deft. was not allowed to cross-examine this witness on the subject of his job termination. Deft. had sought to establish a possible motive or bias against the Deft.

Jury deliberation: 1 hour. Offer: $300,000; demand: $1,500,000; amount asked of jury: $5,685,000. Pltf. Experts: Dr. Lawrence Kaplan, neuropsychiatrist, Manhattan; Eugene Spector, on wage losses in the maritime industry; Dr. Philip Taylor, orth. surg., Brooklyn; Edward Provder, rehabilitation expert; Dr. Mitchell Kaplan, plastic surgeon, Brooklyn; Dr. Alexander Morrison, PhD., psychologist; Gerald Lazarowitz, on wage losses in the automotive industry; Edward Feldman, maritime expert . Deft. Experts: Dr. Mortimer Shapiro, psychiatrist, Manhattan; Patrick Gaughan, Ph.D., economist, Economatrix Research Assoc., Short Hills, New Jersey; John Holland, rehabilitation expert.

Richard and Kathleen Lightfoot v. State of New York

ANKLE AND KNEE FRACTURES

NY

$770,239 for Richard L.

$770,239.00

XVII/13-30 SCAFFOLD ACCIDENT DAMAGES TRIAL STRUCTURAL STEEL PAINTER SUSTAINS ANKLE AND KNEE FRACTURES

Richard and Kathleen Lightfoot v. State of New York Claim No. 90848 22-page Decision Filed 3/31/99 Court of Claims, Hauppauge

Judge: Leonard Silverman

Decision: $770,239 for Richard L. Breakdown: $350,000 for past pain and suffering; $150,000 for future pain and suffering; $42, 234 for past medical expenses; $91,764 for past lost earnings; $136, 241 for future lost earnings.

$30,000 for Kathleen L. for loss of services.

Clmt. Atty: Edward Fogarty of Fogarty & Fogarty, Mineola

Deft. Atty: Steven Weinberg of Gottesman, Wolgel, Secunda, Malamy & Flynn, P.C., Manhattan

Facts: On 10/8/94, Clmt., then age 43, fell 12-15 feet while working atop a mobile truck scaffold after its railing collapsed. At the time, he was employed as a structural steel painter, painting an overpass on Sunrise Hwy. in West Islip. Previously, Clmt. had been granted summary judgment on liability by the Appellate Division, Second Department. Lightfoot v. State of New York, 245 A.D.2d 488. This trial on damages ensued.

Injuries: interarticular fracture of the right distal tibia; fracture of the lateral tibial plateau of the left knee. Clmt. s right leg fracture required surgery utilizing both internal and external fixation. Clmt. was confined to a bed or wheelchair for 3 months; then used a walker for several months. He underwent physical therapy for several years. In April 1997, he was prescribed an ankle sleeve to help control swelling and provide support. He attempted to return to work in January 1998, but experienced pain and swelling in the ankle which, he claimed, prevented him from returning. Clmt. contended that he suffers pain and stiffness when he attempts to sit or stand for extended periods, that he is frequently required to use a cane, and that he walks with a limp. Deft. s experts acknowledged that Clmt. suffered a partial disability, but contended that, although Clmt. could not return to work as a painter, he was employable in other fields. The court agreed, finding that Clmt. was totally disabled for 2 years after the accident. From that point on, the court found, Clmt. s earning capacity was reduced by approximately $8,000 per year. Demonstrative evidence: surveillance video showing Clmt. walking with little or no limp.

Clmt. Experts: Dr. David Loya, treating orth. surg., Bay Shore; Conrad Berenson, Ph.D., economist, Woodbury; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Joyce Mesch-Spinello, vocational rehabilitation, Manhattan; William Book, vocational rehabilitation, Binghamton; Dr. Leon Sultan, orth. surg., Franklin Square.

Raymond and Georgette Gilmore v. Owen Cosgrove

DEGENERATIVE DISC DISEASE AND RADICULOPATHY

Truck driver

NY

$779,000 for Raymond G. (6/0).

$779,000.00

XIV/15-22 MOTOR VEHICLE LANE CHANGE SUMMARY JUDGMENT ON LIABILITY DEGENERATIVE DISC DISEASE AND RADICULOPATHY

Raymond and Georgette Gilmore v. Owen Cosgrove 973/95 5-day trial Verdict 9/20/96 Judge Robert C. Williams, Ulster Supreme

VERDICT: $779,000 for Raymond G. (6/0). Breakdown: $75,000 for past pain and suffering; $62,000 for past lost earnings; $17,000 for past medical expenses; $150,000 for future pain and suffering; $ 450,000 for future lost earnings; $25,000 for future medical expenses.

$25,000 for Georgette G. for loss of services. Post- trial motions were denied. Jury: 5 male, 1 female.

Pltf. Atty: Steven H. Cohen of Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh

Deft. Atty: Thomas A. Murphy of Cook, Tucker, Netter & Cloonan, Kingston

Facts: Pltf., a 45-year-old union truck driver at the time, testified that on 8/30/94 he was driving a dump truck on the N.Y.S. Thruway in Clarkstown when the truck was hit by Deft. s vehicle, blowing out the left rear tire. Pltf. claimed that the force of the impact caused him to hit his chest on the steering wheel and then hit the back of the cab. Pltf. was granted summary judgment on liability and this trial was on damages only.

Injuries: activation of pre-existing asymptomatic degenerative disc disease in the lumbar spine; radiculopathy. Pltf. claimed that he has pain and numbness down his leg and that he requires a cane. He testified that as a result of his injuries, he was unable to return to work. Pltf. s vocational rehabilitation expert testified that Pltf. has a 10th-grade education and that he cannot be trained in another field. Deft. argued that Pltf. could not have sustained the injuries as a result of an impact between a 2,500-lb car traveling at 55 mph and an 80,000-lb. dump truck traveling at 40 mph, and contended that his injuries were pre-existing.

Demonstrative evidence: anatomical diagram; model of a disc; MRI; X-rays; photograph of the truck; medical records; income tax returns. Offer: $60,000; demand: $1,100,000; amount asked of jury: $ 1,200,000. Jury deliberation: 3 hours. Carrier: Allstate. Pltf. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Thomas Kershner, economist, Saratoga Springs; Dr. Paul Jones, orth. surg., Monticello; Dr. Mark Newman, chiropractor, Monroe; Dr. Neil Dunkelman, physical medicine, Newburgh; Dr. Richard Geoghan, treating chiropractor, Cold Spring. Deft. Experts: Dr. Lewis Travis, neurologist, East Elmhurst; Dr. Albert Tannin, orth. surg., Kingston; Dr. Jacob Barie, radiologist, Middletown

Alvin Ballah v. Circle Line Statue of Liberty Ferry, Inc. v. Union Maintenance Corp.

HERNIATED CERVICAL DISC

Painter

NY

This action settled prior to trial for a structured settlement of $ 795,000 plus an $84,491 waiver of a Workers’ Compensation lien

$795,000.00

XIII/36-36 MARITIME ACCIDENT LADDER PAINTER FALLS WHILE WORKING ON SHIP HERNIATED CERVICAL DISC

SETTLEMENT: Alvin Ballah v. Circle Line Statue of Liberty Ferry, Inc. v. Union Maintenance Corp. 4033/93 Date of Settlement 2/2/96 Kings Supreme

Pltf. Atty: Ralph J. Drabkin of Simon, Drabkin & Margulies, Manhattan

This action settled prior to trial for a structured settlement of $ 795,000 plus an $84,491 waiver of a Workers’ Compensation lien. Pltf., a 42-year-old painter employed by Third-party Deft., testified that on 4/9/92 he was painting the side of Deft.’s ship when he fell off a ladder leading to a float. Deft.’s ship was anchored at the Brooklyn Navy Yard and was in navigable waters, and the Labor Law did not apply. Pltf. contended that the equipment supplied by Deft. Circle Line was improperly constructed. He claimed that Union Maintenance failed to secure the ladder to the ship and that Defts. should have used scaffolding. Deft. Circle Line argued that as the owner of the boat it was not responsible, and claimed that the equipment was proper. Deft. Union Maintenance claimed that Pltf. was barred by Workers’ Compensation.

Injuries: herniated disc at C6-7 requiring a discectomy and fusion. Settlement apportionment: $596,250 (75%) paid by Circle Line; $198,750 (25 %) paid by Union Maintenance. Pltf. Experts: Capt. Pasquale Navarro, U.S. M.C., marine consultant, Kings Point; Dr. Gerald Klingon, neurologist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Dr. David Schneider, neurologist, Woodside; Dr. Maurice Carter, orth. surg., Manhattan; Jack Saunders, vocational rehabilitation, Manhattan.

Mohammed and Mukhtar Nav Ashraf v. Marc Gordon, Kerman Protection Co., and Ford Motor

HERNIATED AND BULGING CERVICAL AND LUMBAR DISCS WITH SURGERY

Cab driver

Bronx, NY

$840,000 (6/0). Breakdown: $750,000 for past pain and suffering; $90,000 for past lost earnings. Jury: 5 male, 1 female..

$840,000.00

XIII/37-4 MOTOR VEHICLE REAR END HERNIATED AND BULGING CERVICAL AND LUMBAR DISCS WITH SURGERY SURVEILLANCE FIL

Mohammed and Mukhtar Nav Ashraf v. Marc Gordon, Kerman Protection Co., and Ford Motor Credit 20672/92 9-day trial Verdict 3/5/96 Judge Kenneth L. Thompson, Jr., Bronx Supreme

VERDICT: $840,000 (6/0). Breakdown: $750,000 for past pain and suffering; $90,000 for past lost earnings. Jury: 5 male, 1 female.

Pltf. Atty: Henry W. Davoli, Jr. of Davoli & Vesnaver, Rockville Centre, trial counsel for Gary E. Rosenberg, Forest Hills

Deft. Atty: Michael Russo of Hayes & Ryan, Manhattan

Facts: The accident occurred at 10 AM on 6/21/92 at the intersection of 31st St. and Ninth Ave. in Manhattan. Pltf., a 42-year- old cab driver, was driving a car that was struck in the rear by Deft.’s Ford Aerostar commercial van, which was leased by Deft. Kerman and driven by Kerman’s employee, Deft. Gordon. Pltf. claimed that he was stopped for 3-5 seconds before the collision. The impact crushed the back of the cab and broke the driver’s seat, and the taxi was pushed 30 feet through the intersection.

Defts. contended that Pltf. stopped short. Pltf. testified that Deft. Gordon told him that he was looking ahead at the traffic light at the next corner. The responding police officer testified that Pltf. told him that he was slowing for a yellow light when his car was hit in the rear. The officer also testified that Deft. Gordon told him that he thought that Pltf. was going to drive through the yellow light, and when Pltf. stopped, Gordon braked but could not avoid the impact. Deft. Gordon was precluded from testifying because he did not appear at his deposition. The jury was charged with a sudden stop and following too closely.

Injuries: herniated discs at C5-6 and L4-5; bulging discs at C4-5 and L5-S1; nerve root compression; radiculopathy. On 4/14/95, Pltf. underwent bilateral microlaminotomy decompression surgery at L4-5 to free up the nerve roots that exited L4-5. He claimed that he has had some relief from pain, and still wears a back brace. Pltf. has not worked since the accident. His neurologist testified that Pltf.’s herniated disc and nerve root damage were caused by the accident, but admitted that he had some pre- existing degenerative disc disease. Pltf.’s economist testified that Pltf. will suffer $1,100,000 in future lost earnings. Defts. disputed the existence and causality of the herniated discs and noted that Pltf. received only emergency room treatment after the accident. Pltf. underwent conservative treatment for 2 years with a chiropractor, whom he saw three times a week. He also saw an orthopedist during that time. Defts.’ neurologist testified that Pltf. suffered from pre-existing osteoarthritis and a degenerative spinal condition, but had no herniated discs. Pltf. contended that he can no longer drive. Defts. noted that Pltf. renewed his taxi medallion. Defts. also produced a surveillance film of Pltf. showing him driving his children to school, walking without apparent difficulty, and turning his head, all activities that Pltf. claimed that he was no longer able to do. Demonstrative evidence: three enlarged photos of the cab; models of the spine; surveillance film of Pltf .; MRIs taken 9 days after the accident and 2 years after the accident; lost wages chart. Jury deliberation: 6 hours. Offer: $350,000; demand: $ 2,000,000; amount asked of jury: $2,000,000. Carrier: Aetna for Kerman; Allstate for Ford (excess). Pltf. Experts: Dr. Lawrence Shields, neurologist, Brooklyn; Albert Levenson, Ph.D., economist, Woodmere; Edmond Provder, vocational rehabilitation, Manhattan. Pltf. failed to call its surgeon, Dr. Richard Radna, and Pltf. received a missing witness charge. Deft. Experts: Dr. William Head, neurologist, Staten Island; Dr. Bruce Zablow, neuroradiologist, Manhattan; Robert Brower, vocational rehabilitation, Medford. Deft. failed to call Dr. Murray Burton, the orthopedist who examined Pltf. before and after his surgery, and the court instructed the jury with a missing witness charge.

Jose and Lydia Garcia v. Universal Elevator Co., Inc.

AGGRAVATION OF PRIOR SPINAL PROBLEM WITH RADICULOPATHY

Elevator operator

Bronx, NY

$1,500,000 for Jose G.; $100,000 for Lydia G. for loss of services. Settled for $850,000 pursuant to a “high/low” settlement agreement ($250,000/$850,000).

$850,000.00

VI/1-18 ELEVATOR ACCIDENT – AGGRAVATION OF PRIOR SPINAL PROBLEM WITH RADICULOPATHY

Jose and Lydia Garcia v. Universal Elevator Co., Inc. 13543/86 3-week trial Verdict 6/25/87 Judge Harold Tompkins, Bronx Supreme

VERDICT: $1,500,000 for Jose G.; $100,000 for Lydia G. for loss of services. Settled for $850,000 pursuant to a “high/low” settlement agreement ($250,000/$850,000).

Pltf. Atty: Guy I. Smiley of Smiley, Schwartz & Captain, Manhattan

Deft. Atty: Hugh J. He

Angel Ruiz and Jennifer Myers v. Mario Pugliano

NECK, BACK AND KNEE INJURIES

Union-affiliated Trucker

Queens, New York

The jury found that Pugliano was liable for the accident. It also found that Ruiz sustained a serious injury. It determined that Ruiz’s damages totaled $873,066.38.

$873,066

On Dec. 31, 2009, plaintiff Angel Ruiz, 44, a union-affiliated trucker, was driving on the eastbound side of Union Turnpike, near its intersection at Woodhaven Boulevard, in the Flushing section of Queens. His fiancée, plaintiff Jennifer Myers, was a passenger. Their truck struck one side of a sport utility vehicle that had skidded off of the westbound side of Union Turnpike, over the road’s concrete divider and onto the eastbound side of the road. Myers claimed that she sustained injuries of her back and neck. Ruiz claimed that he sustained injuries of his back and a knee. Myers and Ruiz sued the SUV’s driver, Mario Pugliano. Myers and Ruiz alleged that Pugliano was negligent in the operation of his vehicle.

Ruiz claimed that the accident was a result of Pugliano’s SUV having skidded on ice. He estimated that a snowstorm had begun 30 or more minutes prior to the collision and that Pugliano should have anticipated icy conditions. Plaintiffs’ counsel noted that Pugliano’s SUV skidded over a 2-foot-tall concrete barrier, and he argued that such an event could not have occurred if Pugliano had been driving prudently.

Pugliano contended that the accident occurred soon after the snowstorm had begun. He claimed that he could not have anticipated the presence of ice.

Stephen and Lynne Martinsen v. County of Nassau

MULTIPLE FRACTURES

Steamfitter for Trainer & Hansen

Nassau, NY

This action settled just prior to jury selection for a total of $887, 500, plus the waiver of a $150,000 Workers’ Compensation lien.

$887,500.00

XVII/5-50 LABOR LAW LADDER ACCIDENT MULTIPLE FRACTURES

SETTLEMENT: Stephen and Lynne Martinsen v. County of Nassau 010918/93 Date of Settlement 5/25/99 Nassau Supreme

Pltf. Atty: Michael S. Levine of Gandin, Schotsky, Rappaport, Glass & Greene, L.L.P., Melville

This action settled just prior to jury selection for a total of $887, 500, plus the waiver of a $150,000 Workers’ Compensation lien. The accident occurred at 8:30 AM on 10/27/92, in the offices of the Nassau County Department of Welfare in Mineola. Pltf., age 43 at the time, was employed as a steamfitter by Trainer & Hansen, a company that was hired by the County of Nassau to install new boilers in the basement of the Mineola offices. Pltf. was attempting to rig a block and tackle for the purpose of lifting a boiler from a concrete pad when the ladder that he was climbing on slipped out from under him. Pltf. fell approximately 8 feet to the floor below.

Pltf.’s motion for summary judgment pursuant to Labor Law ?240(1) was denied. However, on appeal, the Appellate Division, Second Department reversed, and held that a ladder that is not braced or secured in any way is a prima facie violation of the ?240(1) law (Martinsen v. County of Nassau, 671 N.Y.S.2d 355, 2nd Dept. 1998).

Injuries: comminuted intra-articular fracture of the right tibial plateau with depressed posterior fragments, requiring open reduction and internal fixation; fracture dislocation of the right first metacarpal. Pltf. claimed that he was left permanently disabled and has been unable to return to work. At the time of the accident, Pltf. was earning an annual income of approximately $70,000. Offer: $600,000; demand: $1,000,000. Specials: $35,000 for medical expenses; $115,000 for past lost earnings. Carrier: CNA.

Pltf. Experts: Pltf. would have called Dr. John Killian, orth. surg., Mineola; Alan Leiken, Ph.D., economist, East Setauket; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Expert: Deft. would have called Dr. Peter Langan, orth. surg., Mineola.

Pedro G. Pluas-Aviles v. RAS Management, Inc., No. 36266/08

Worker fell 30 feet when scaffold collapsed during disassembly

Suffolk Supreme, NY

Each side moved for summary judgment of liability. During pendency of the motions, the parties negotiated a mediated settlement in which Pluas-Aviles recovered $900,000. RAS Management’s insurer agreed to contribute $50,000, and Pluas-Aviles’ employer’s insurer agreed to contribute $850,000.

$900,000.00

Judge: William B. Rebolini

Date: 12-08-2010

PLAINTIFF(S)

• Sean P. Constable; Block O’Toole & Murphy, LLP; New York, NY, for Pedro G. Pluas-Aviles
• Stephen J. Murphy; Block O’Toole & Murphy, LLP; New York, NY, for Pedro G. Pluas-Aviles

• Alan Leiken Ph.D.; Economics; East Setauket, NY called by: Sean Constable, Stephen Murphy
• Richard Schuster Ph.D.; Vocational Rehabilitation; New York, NY called by: Sean Constable, Stephen Murphy
• John Brennan M.D.; Orthopedic Surgery; Southampton, NY called by: Sean Constable, Stephen Murphy

DEFENDANT(S)

• Garrett Duffy; Fogarty Duffy, P.C.; Mineola, NY, for RAS Management Inc.

• Edward Weiland M.D.; Neurology; Great Neck, NY called by: Garrett Duffy
• Craig Ordway M.D.; Orthopedic Surgery; Huntington, NY called by: Garrett Duffy
• Edmond Provder C.R.C.; Vocational Rehabilitation; Lodi, NJ called by: Garrett Duffy

• Gemini Insurance Co. for Pluas-Aviles’ employer
• Farm Family Casualty Insurance Co. for RAS Management

On May 29, 2008, plaintiff Pedro Pluas-Aviles, 28, a laborer, worked at a residential property that was located at 24 Crossways, in East Hampton. Pluas-Aviles and other workers were replacing a home’s roof and siding, and the work necessitated their use of a scaffold. The scaffold collapsed while Pluas-Aviles was working on it, and he plummeted about 30 feet. He claimed that he sustained injuries of his back and a leg.

Pluas-Aviles sued the project’s manager and/or general contractor, RAS Management Inc. He alleged that RAS Management violated the New York State Labor Law.

Pluas-Aviles noted that the accident occurred while his co-workers were disassembling the scaffold. He contended that he had not been warned that the structure was being disassembled.

Plaintiff’s counsel claimed that the incident stemmed from an elevation-related hazard, as defined by Labor Law ? 240(1), and that Pluas-Aviles was not provided the proper, safe equipment that is a requirement of the statute. They also claimed that the site was not properly safeguarded, as required by Labor Law ? 241(6)

Defense counsel claimed that RAS Management was the renovation project’s manager–not a general contractor. He contended that Labor Law ?? 240(1) and 241(6) are not applicable to project managers.

Pluas-Aviles sustained a fracture of one leg’s tibia. He also claimed that he sustained herniations of intervertebral discs of his spine’s lumbar region.

During the week that followed the accident, Pluas-Aviles underwent open reduction and the internal fixation of his fractured leg. On Aug. 13, 2009, he underwent surgical removal of the fixation hardware. His back’s injuries were addressed via conservative treatment.

Pluas-Aviles claimed that he retains a limp, and he contended that he suffers residual pain that prevents his resumption of manual labor. His education and command of the English language are limited, and, as such, he cannot easily obtain sedentary work. He also claimed that he must undergo additional treatment.

Pluas-Aviles sought reimbursement of a workers’ compensation lien that totaled $68,843.99. He also sought recovery of his future medical expenses, his future lost earnings, and damages for his past and future pain and suffering.

Defense counsel contended that Pluas-Aviles does not require additional medical treatment. The defense’s vocational-rehabilitation expert opined that Pluas-Aviles can resume his last job or some other form of manual labor.

Douglas Sanders v. Dominick Tozzo and Lynnes Nissan City Inc.

MENISCUS TEAR AND LUMBAR HERNIATION

Sales Associate

Essex County, NJ

The parties negotiated a pre-trial settlement. Tozzo and the insurer for Lynne’s Nissan City agreed to pay a total of $900,000. The insurance policy provided $1 million in coverage. The settlement’s negotiations were mediated by Paul Vichness, of Mandelbaum Salsburg.

$900,000

On Dec. 14, 2013, plaintiff Douglas Sanders, a sales associate in his late 30s, was retrieving a dealership vehicle from Lynne’s Nissan City Inc., in Belleville.

Sanders worked for BMW of Bloomfield. The dealership had an oral agreement with Lynne’s Nissan City and its owner, Dominick Tozzo, to store its BMW vehicles at the Nissan dealership. Of the approximately 1,000 vehicles at the lot, about 225 were BMW vehicles.

Sanders had been dropped off at the lot by a co-worker at the lot to pick up a BMW to show a customer. As he was walking in between the BMW vehicles, he slipped and fell on ice and landed on his right knee. He claimed knee and back injuries.

Sanders sued Tozzo and Lynne’s Nissan City Inc., alleging negligence in maintaining the premises, creating a dangerous condition. Specifically, he claimed a failure to adequately remove the snow and ice.

Tozzo argued that he had no obligation to remove snow and ice between and around the Bloomfield BMW vehicles, only around the Nissan vehicles.

Sanders’ counsel argued that Tozzo did have such a responsibility, because BMW of Bloomfield paid Tozzo $27,000 a month to store its vehicles and to keep the area around its vehicles safe, including the area in between the BMW vehicles.

Sanders’ expert in engineering cited the lack of a written agreement, and opined that Tozzo, as a property owner, had a duty pursuant to municipal codes to make sure the premises were safe for the tenant.

Sanders’ counsel relied on the testimony of a Lynne’s Nissan City security guard, who stated that he had seen Lynne’s Nissan City employees put salt between the BMW vehicles.

Tozzo’s counsel argued that Lynne’s Nissan City was not responsible for administering snow-removal services between the BMW vehicles, and that its only obligation was to remove and treat snow and ice from the main and side aisles, which it had properly performed.

Frank Urgovitch v. Shred-Tech USA LLC, Shred-Tech USA Inc., Shred-Tech Corporation and Information Destruction System

FOOT AMPUTATION

Truck Driver

Passaic County, NJ

The parties agreed to settle for $900,000, during mediation with John E. Keefe Sr., former presiding judge of the Appellate Division of the New Jersey Superior Court and now of the Keefe Law Firm, in Red Bank.

$900,000

On May 22, 2015, plaintiff Frank Urgovitch, 51, a truck driver for a mobile paper-shredding company, had the toes of his right foot severed in a paper-shredder.

Urgovitch and another employee had gone into an office building in Passaic County to collect paper for shredding. The shredder in the truck jammed and, as Urgovitch and other employees had allegedly often done before, he jumped on top of the paper in the hopper, which is funnel-shaped. The jam cleared and his right foot slipped into the blades. His toes were cut off and ultimately part of his foot had to be amputated.

Urgovitch sued the Canada-based company that manufactured the paper-shredding truck, Shred-Tech Corp. He also sued the company’s American subsidiary, Shred-Tech USA LLC. In addition, he sued his employer, Information Destruction Systems, but the company was dropped from the case.

Urgovitch brought a products liability, design-defect claim under the foreseeable-misuse theory. Counsel for Urgovitch argued that it was reasonably foreseeable that a worker might climb on the funnel and kick the paper in order to clear a paper jam. To prevent this, counsel claimed, the shredding truck, Shred-Tech model No. MDS-35GT should have had a safety guard over the shredder. It was clear that the company knew such an accident was foreseeable because it had retro-fitted its trucks’ shredders with safety guards for its two biggest customers, although it did not for smaller clients. Moreover, all new trucks the company made came with the guards. Counsel further claimed that the emergency-stop button for the shredder was improperly located. When Urgovitch’s foot was caught in the blades, his co-worker had heard his screams and hit the emergency-stop button, because Urgovitch said it was out of his reach.

An expert engineer for Urgovitch said the shredder should have been manufactured with a safety barrier and the emergency stop switch should have been within reach of the hopper.

Shred-Tech argued that Urgovitch was comparatively negligent because he should have known it was dangerous to put his foot in the hopper. The company also claimed he had used the shredder incorrectly.

Counsel for Urgovitch countered that under the foreseeable-misuse theory, if a product’s misuse was obvious to the manufacturer, then proximate cause is pre-determined and comparative fault could not be charged to the plaintiff.

Errol Joseph v. Port Authority of New York and New Jersey, Tishman/Turner, JV, Tishman-Turner Joint Venture III, Tishman Construction Corporation, Tishman Construction Corporation of New York, Tishman Construction Corporation of Manhattan, Turner Construction Company

KNEE INJURY

Carpenter

New York

The parties negotiated a pretrial settlement. The defendants’ insurer agreed to pay $900,000. The negotiations were mediated by Allen Hurkin-Torres, of Jams.

$900,000

On April 2, 2012, plaintiff Errol Joseph, 40, a union-affiliated carpenter, worked at a construction site that was located at the World Trade Center Transportation Hub, which abuts the intersection of Church and Fulton streets, in Manhattan. Joseph fell while he was walking on plywood that covered a treacherous section of ground. He claimed that he sustained injuries of a knee.

Joseph sued the premises’ owner, the Port Authority of New York and New Jersey; the construction project’s general contractors, Tishman Construction Corp. and Turner Construction Co.; and various related entities, Tishman Construction Corporation of Manhattan, Tishman Construction Corporation of New York, Tishman Turner Joint Venture III and Tishman/Turner Joint Venture. Joseph alleged that the defendants violated the New York State Labor Law.

Joseph claimed that he slipped while walking across the plywood. He claimed that the board covered a commonly traversed area in which debris, mud and water had accumulated. He also claimed that the hazard had been present for a period of at least 72 hours.

Joseph’s counsel contended that the defendants violated New York Codes, Rules, and Regulations title 23, part 1.7(e)(1), which specifies that a work site’s passageways must be free of any condition that could constitute a tripping hazard, and part 1.7(e)(2), which specifies that a work site’s floors must be free of debris, scattered tools and materials, and sharp objects. He contended that the violations established that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law § 241(6).

Defense counsel claimed that the board was situated in an area in which groundwater naturally accumulated, and he contended that the defendants could not be deemed liable for the water’s accumulation. Defense counsel also contended that Joseph failed to exercise due caution. He further contended that Labor Law § 241(6) was not applicable to the case.

Oneil Walters v. Jermel L. Coates and MMI Mechanical Inc.

MENISCUS TEAR AND DERANGEMENT OF SPINE’S LUMBAR REGION

Mechanic

Bronx, New York

During defense counsel’s presentation of his case, the parties negotiated a settlement. The defendants’ insurer agreed to pay $925,000, from a policy that provided $1 million of coverage.

$925,000

On Jan. 11, 2013, plaintiff O’Neil Walters, 30, a mechanic, was driving on the northbound side of Grand Concourse, near its intersection at East 149th Street, in the Mott Haven section of the Bronx. While he was proceeding through the intersection, his car collided with an eastbound truck that was being driven by Jermel Coates. Walters claimed that he suffered injuries of his back and a knee.

Walters sued Coates and Coates’ employer, MMI Mechanical Inc. Walters alleged that Coates was negligent in the operation of his vehicle. Walters further alleged that MMI Mechanical was liable because the accident occurred during Coates’ performance of his job’s duties.

Walters claimed that the collision occurred while he was stopped in traffic. He claimed that the truck struck the left side of his car. He further claimed that Coates was executing a left turn onto the northbound side of Grand Concourse. Left turns were not permitted at the intersection. Plaintiff’s counsel noted that Coates was en route to a truck-rental agency located nearby on Grand Concourse. Coates acknowledged that he was traveling to the rental agency, but he claimed that he was not executing a left turn. He claimed that he intended to proceed straight through the intersection.

Coates also claimed that Walters’ car struck the right side of the truck. He suggested that a southbound bus had blocked Walters’ view of the truck. In response, plaintiff’s counsel contended that the location of the vehicular damage supported Walters’ version of the manner in which the accident occurred. Plaintiff’s counsel also claimed that Coates’ testimony contradicted testimony provided by a police officer who responded to the accident.

Joan Craig and John Craig v. Kayla Kellner and Maria Colangelo

STERNUM FRACTURE, DISC HERNIATIONS

Dental Assistant

Monmouth County, NJ

The parties agreed to a $950,000 settlement a week prior to the scheduled trial date. The settlement was paid from within the defendants’ $250,000 primary policy with Progressive Casualty Insurance Co. and from a $1 million excess policy with Allstate Insurance Co.

$950,000

On Feb. 5, 2013, plaintiff Joan Craig, 53, a dental assistant, was driving south on Dutch Lane Road, a two-lane, rural road in Marlboro Township with a 45 mph speed limit. On her right side was a T-junction, where Randolph Road, another two-lane road, with a 35 mph speed limit, runs perpendicularly into Dutch Lane Road. As Craig drove past the junction, another driver, approaching on Randolph Road, went through a stop sign and broadsided the passenger-side of Craig’s vehicle. She claimed multiple injuries.

Craig sued the other driver, Kayla Kellner, alleging she had been negligent, and also sued the vehicle’s owner, Maria Colangelo.

The defendants did not actively dispute liability.

Flora Iannacone v. SPS Technologies and B. Altman (Third-party Deft.)

BRAIN DAMAGE

Department manager for Deft. B. Altman

NY

$950,000 v. SPS (6/0).

$950,000.00

X/24-24 PRODUCT LIABILITY CHAIR COLLAPSE DEFECTIVE DESIGN BRAIN DAMAGE

Flora Iannacone v. SPS Technologies and B. Altman (Third-party Deft.) 89 CIV 7085 4-day trial Verdict 2/14/92 Judge Louis J. Freeh, Southern District

VERDICT: $950,000 v. SPS (6/0). Breakdown: $50,000 for past pain and suffering; $330,000 for future pain and suffering; $120,000 for past lost earnings; $258,000 for future lost earnings; $14,000 for past medical expenses; $178,000 for future medical expenses. Post-trial motions were denied. Jury: 3 male, 5 female.

Pltf. Atty: Thomas A. Stickel of Stickel & Belovin, Manhattan

Deft. Atty: John H. Wilson of Langan & Levy, Manhattan, for SPS Technologies

William M. Ciment of Jacobowitz, Spessard, Garfinkel & Lesman, Manhattan, for Third-party Deft. B. Altman

Facts: Pltf. was a 57-year-old department manager for Deft. B. Altman when she was injured when the chair in which she was sitting collapsed in July 1990. The chair, manufactured by Deft. SPS Technologies, was 24 years old at the time of the accident. Pltf. claimed that the chair had been defectively designed in that only one bolt secured the seat back to the bottom portion of the chair. Pltf.’s metallurgist testified that when this bolt failed, Pltf.’s weight was thrown backwards, causing the chair to collapse. He also testified that the bolt failure occurred at an area where the bolt and the seat back assembly did not fit together properly. Further stress was added to the bolt because the weight of the seat back was placed on the fulcrum, which was attached to the bolt. The expert testified that the bolt could not be tightened, causing the chair to wobble, which stripped the threads on the bolt, causing the bolt to weaken and eventually give way.

Deft. SPS Technologies contended that the chair was properly designed, noting that it had been in use for 24 years. It claimed that the chair failed because Third-party Deft. B. Altman failed to provide adequate maintenance. Pltf. contended that while the chair had been used for 24 years, its design ensured that the bolt would fail eventually. Deft. B. Altman contended that the chair did not wobble excessively and it argued that it could not reasonably have been aware of the hazard.

Injuries: brain damage with memory loss and disorientation; concussion and post-concussion syndrome; lumbar nerve root irritation at L4-5, confirmed by EMG. Pltf. was knocked unconscious for a short time. Her physician testified that she will continue to experience radiating pain. Pltf.’s neuropsychiatrist testified that she will continue to suffer from headaches and loss of concentration. Pltf. also suffers from bouts of depression and occasional short-term memory loss. Deft.’s rehabilitative medicine expert testified, based on a review of Pltf.’s medical records, that her claims were exaggerated. He also presented copies of a negative EEG that he had performed on Pltf. Demonstrative evidence: photographs and design drawings of the chair; pieces of the broken chair and bolt; models of the spine and brain; EMGs; CAT scan. Specials: $36,000 Workers’ Compensation lien. Offer: $7,500; demand: $75, 000; amount asked of jury: $950,000. Jury deliberation: 4? hours. Carrier: State Farm. Pltf. Experts: Karl Putlitz, metallurgist, Wappingers Falls; Dr. Idillio Noseda, general practitioner, Manhattan; Dr. Arthur Greenspan, neuropsychiatrist, Manhattan. Deft. Expert: Edmond Provder, vocational rehabilitation, Manhattan.

Vicki Seidenberg, M.D. v. Dan s East 23rd St. Parking Corp., New Amsterdam Apartment Corp., and Goodstein Management Co.

FRACTURED PATELLA

Physiatrist

New York, NY

This action, which settled after Pltf. s orthopedist testified, resulted in a $1,000,000 settlement, with $750,000 in cash and $250,000 structured.

$1,000,000.00

XVIII/19-44 FALLDOWN PARKING GARAGE RAMP FRACTURED PATELLA

SETTLEMENT: Vicki Seidenberg, M.D. v. Dan s East 23rd St. Parking Corp., New Amsterdam Apartment Corp., and Goodstein Management Co. 103016/96 Date of Settlement 6/16/00 New York Supreme

Pltf. Atty: Jonathan M. Goidel of Goidel & Siegel, L.L.P., Manhattan

Deft. Atty: Joseph F.X. Savona of Savona & Scully, Manhattan, for New Amsterdam and Goodstein

James E. Baker of O Connor, O Connor, Hintz & Deveney, Garden City, for Dan s East

This action, which settled after Pltf. s orthopedist testified, resulted in a $1,000,000 settlement, with $750,000 in cash and $250,000 structured. Pltf., a 35-year-old physiatrist, claimed that on 11/2/95 at 7:45 AM she was injured while walking down a ramp at Defts. parking garage on 23rd St. in Manhattan. Pltf. testified that she slipped on a puddle of grease or oil. Pltf. s engineer testified that samples taken from the ramp indicated a long-term accumulation of oil from cars. Pltf. also contended through her expert architect that the garage ramp was excessively steep, lacked handrails, lacked a non-skid surface, and did not have an intermediate landing. Defts. denied notice of any oil.

Injuries: fractured patella requiring open reduction and internal fixation. Pltf. required a second surgery to remove the hardware, and underwent arthroscopic debridement surgery. Demonstrative evidence: enlarged photographs of the ramp; X-rays; model of the knee; knee prosthesis; Bledsoe brace; shoes that Pltf. had been wearing at the time of the accident. Settlement apportionment: Dan s and New Amsterdam each paid half. Carriers: Travelers for Dan s; Greater New York for New Amsterdam and Goodstein.

Pltf. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Robert Palermo, architect, Brooklyn; Dr. Joseph D Angelo, orth. surg., Manhattan; Pltf. retained but did not call Conrad Berenson, Ph.D., economist, Woodbury; Anthony Storace, engineer, Mineola; Jesse Bidanset, engineer, Inter-City Testing, Mineola.

Deft. Experts: Deft. would have called Herbert Goldstein, engineer, Massapequa; Harlan Fair, P.E., engineer, Armonk; Joyce Mesch-Spinello, Ph.D., vocational rehabilitation, Manhattan; Dr. Irving Etkind, orth. surg., Manhattan.

Mark Traurig v. Continental

HERNIATED DISCS AND PSYCHOLOGICAL INJURIES SETTLEMENT PRIOR TO ARBITRATION HEARING

Insurance loss control representative

NY

This motor vehicle action settled prior to an arbitration hearing for a structured settlement with a present value of $1,000,000

$1,000,000.00

X/10-26 MOTOR VEHICLE RED LIGHT HERNIATED DISCS AND PSYCHOLOGICAL INJURIES SETTLEMENT PRIOR TO ARBITRATION HEARING

SETTLEMENT: Mark Traurig v. Continental 92-4756 Suffolk Supreme 90 Civ 1919 Date of Settlement 7/24/92 Eastern District

Pltf. Atty: Martin Block of Sanders, Sanders & Block, Mineola

This motor vehicle action settled prior to an arbitration hearing for a structured settlement with a present value of $1,000,000. Deft. held the underinsured policy. The underlying case against the other motorist settled for the full $100,000 policy after jury selection in Suffolk Supreme Court.

The accident occurred on 8/22/87 at the intersection of Nichols Rd. and Rte. 25 in Brookhaven. Pltf., a 42-year-old insurance loss control representative, claimed that Deft. Carol Duffy drove through a red light and struck his vehicle. Injuries: herniated discs at C4-5, C5-6, C6-7, and L5-S1 requiring surgery; anxiety disorder. Pltf. returned to work after the accident, but has not worked since he underwent surgery. He claimed that he will never be able to return to work. Deft. denied that Pltf. suffered any herniated discs, and contended that he had preexisting degenerative disc disease which was unrelated to this accident. Deft. also contended that Pltf. could return to work. Demonstrative evidence: blowup of MRI; interpretive illustration of spine injury. Carrier: State Farm for Deft. Carol Duffy in underlying action. Settlement apportionment: structured settlement with a present value of $1,000,000 and a future value of $2,214,717. Pltf. Experts: Pltf. would have called Edmond Provder, vocational rehabilitation, Cherry Hill, New Jersey; Dr. Albert Levenson, economist, Woodmere; Dr. Joseph Conroy, neurosurgeon, Langhorne, Pennsylvania; and Dr. Mark Reubens, psychiatrist, Old Westbury.

Gerardo Rojas, an inf. by his f/n/g Bernardino Rojas v. Anglo Enterprises Company #2 and Anglo Enterprises Co. II

LEAD POISONING

New York, NY

$1,073,000 (6/0). Breakdown: $11,000 for past pain and suffering; $62,000 for future pain and suffering; $1,000,000 for diminished earning capacity

$1,073,000.00

XVII/46-3 LEAD POISONING FIVE-YEAR-OLD BOY EXPOSED TO PEELING LEAD-BASED PAINT COGNITIVE DEFICITS AND LEARNING DISABILITY

Gerardo Rojas, an inf. by his f/n/g Bernardino Rojas v. Anglo Enterprises Company #2 and Anglo Enterprises Co. II 118025/95 6?-day trial Verdict 4/24/00 New York Supreme

Judge: Marcy S. Friedman

Verdict: $1,073,000 (6/0). Breakdown: $11,000 for past pain and suffering; $62,000 for future pain and suffering; $1,000,000 for diminished earning capacity. Jury: 2 male, 4 female.

Pltf. Atty: Susan I. Lubowitz of Steven I. Lubowitz, Manhattan

Deft. Atty: Michael Palmeri of Chesney & Murphy, Baldwin

Facts: The infant Pltf., age 5 at the time, claimed that he was exposed to lead during his residence at Deft. s apartment from October 1993 through November 1994. His highest lead level was 39 mcg/dl, and it remained elevated in the low 30s and mid-to-high 20s for approximately 2 years. Pltf. claimed that there was a long- standing peeling paint condition at the premises. Deft. argued that it did not have notice that a child under 6 years old resided at the apartment, which was a pre-1960 multiple dwelling. Deft. also claimed that it was not negligent and that it did not have notice of a lead-based paint hazard until it received the Order to Abate Nuisance from the New York City Department of Health in May 1994. The jury found that Defts. had notice that a child under 6 years of age lived in the apartment, that Defts. were negligent, and that the lead poisoning was a substantial factor in causing Pltf. s injuries.

Injuries: lead poisoning resulting in cognitive deficits and learning problems. Pltf. also claimed that he is at an increased risk for kidney disease, hypertension, and cancer. He has been classified as learning disabled by the NYC Board of Education, and he is receiving resource room services. He was performing well below grade level in all academic areas at the time of trial. Defts. contended that the lead poisoning was not a substantial factor in causing Pltf. s academic problems. Deft. further argued that Pltf. had no cognitive deficits and that poor reading and writing skills and placement in special education classes were due to Pltf. learning English late in life. Pltf. s father admitted that Pltf. spoke little English up until the age of 8. Infant Pltf. was born in New York City, and he spoke fluent English at the time of trial. Demonstrative evidence: photos of the apartment showing peeling paint condition. Offer: $200,000 ($300,000 during deliberations); demand: $ 450,000; amount asked of jury: $2,250,000. Jury deliberation: 1 hour . Carrier: State Liquidation Bureau for First Central.

Pltf. Experts: Dr. Leon Charash, pediatric neurologist, Hicksville; Dr. Edward Hoffman, clinical psychologist, Manhattan; Dr. Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Dr. Abe Chutorian, pediatric neurologist, Manhattan; Dr. Kathleen Acer, clinical psychologist, Dobbs Ferry.

Carolyn and Robert French v. Alfred Schiavo, et al.

CLOSED HEAD INJURY WITH COGNITIVE IMPAIRMENT

Accountant

New York, NY

$274,432 for Carolyn F., reduced to $219,545 for 20% comparative negligence of Pltf.

$219,545.00

XVIII/36-4 MOTOR VEHICLE PEDESTRIAN CLOSED HEAD INJURY WITH COGNITIVE IMPAIRMENT

Carolyn and Robert French v. Alfred Schiavo, et al. 100207/98 12- day trial Verdict 12/1/00 New York Supreme

Judge: Thomas W. Keegan

Verdict: $274,432 for Carolyn F., reduced to $219,545 for 20% comparative negligence of Pltf. Breakdown: $100,000 for past pain and suffering; $34,792 for past lost earnings; $54,640 for past medical expenses; $50,000 for future pain and suffering (1 year); 0 for future lost earnings; $35,000 for future medical expenses.

The action by Robert French was abandoned prior to verdict. Jury: 2 male, 4 female. A post-trial motion is pending.

Pltf. Atty: Christopher B. Weldon and David Weinberger of Lustig & Brown, Manhattan

Deft. Atty: Fred B. Smith of Tromello & Siegel, Manhattan

Facts: On 7/23/96 at 11:45 AM, Pltf., a 32-year-old accountant, was struck by Deft. s van at or near the crosswalk at the intersection of 57th St. and Sixth Ave. in Manhattan. Deft. had been stopped just before the accident. The jury found Pltf. 20% comparatively negligent for the accident.

Injuries: closed head injury with permanent cognitive impairments including memory loss, impairment of concentration, irritability, depression, personality disorders, and post-traumatic stress disorder; post-concussion syndrome; sleep disorder; torn ligaments in the right knee. Pltf. underwent knee surgery in 1999. She had taken a leave of absence and was working part-time by the time of trial. Deft. conceded that Pltf. suffered post-concussion syndrome, which medical experts on both sides equated with mild traumatic brain injury, but disputed the extent and duration of Pltf. s injuries, as well as her claim that she lost future earning power and partnership potential. Deft. produced evidence that Pltf. had been successfully employed at two of the big five public accounting firms since the accident, which had competitive work environments. Deft. also produced Pltf. s former manager from her current employer, who rated her accounting abilities highly. Deft. contended that Pltf. s emotional and personality complaints were related to marital discord. Deft. also contended that Pltf. s knee injury was an aggravation of a more serious prior injury, that results of extensive psychological testing did not support her claims of cognitive impairments, and that her part-time employment status was a voluntary arrangement that did not substantially impair her future prospects. Demonstrative evidence: charts; enlargements; photographs; diagrams ( 97 trial exhibits were marked). Jury deliberation: 6 hours. Carrier: CNA.

Pltf. Experts: Dr. Jonathan Silver, neuropsychiatrist, Manhattan; Dr. Wayne Gordon, neuropsychologist, Manhattan ( psychometric testing); Dr. Justin La Mont, orth. surg., Manhattan ( testified about Pltf. s knee injury and her prospects for future surgery); Dr. Gary Crakes, Ph.D., economist, Connecticut; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Dr. David Mahalick, Ph.D., neuropsychologist, New Jersey; Dr. William Head, neuropsychiatrist, Manhattan; Joseph Pessalano, vocational rehabilitation, Westbury; Dr. David Zaumeyer, Ph.D., economist, Manhattan.

Soricelli v. Marquez, et al.

TORN ACHILLES TENDON

Salesperson

Bronx, NY

This $225,000 settlement, before jury selection, arose out of an accident that occurred on 7/5/93

$225,000.00

XIV/34-31 MOTOR VEHICLE REAR END TORN ACHILLES TENDON

SETTLEMENT: Soricelli v. Marquez, et al. 24241/93 Date of Settlement 10/6/96 Bronx Supreme

Pltf. Atty: Robert A. Hyman, Tarrytown

This $225,000 settlement, before jury selection, arose out of an accident that occurred on 7/5/93 at the intersection of Central Park Ave. and Crisfield St. in Yonkers. Pltf., a 40-year-old salesperson at the time, claimed that Deft. s truck hit his car in the rear while he was stopped at a red light. Pltf. was granted summary judgment on liability after depositions.

Injuries: tear of the left Achilles tendon requiring surgery and a tendon autograft; nightmares. Pltf. underwent physical therapy and a second procedure to remove the suture. He has a limp and occasionally uses a cane. After emergency room treatment on the date of the accident, Pltf. did not seek further treatment for the injury until 6 weeks after the accident, and Deft. would have denied causation and argued that it was improbable that Pltf. could have walked on the injured foot for that long a period without seeking medical treatment. Demonstrative evidence: CAT scans; X-rays; surgical photos. Specials: $30,000 for medical expenses; $ 20,000 for lost earnings. Pltf. Experts: Pltf. would have called Dr. Martin O Malley, orth. surg. (by videotape); Edmond Provder, vocational rehabilitation, Manhattan; Dr. Arthur Greenspan, neuropsychiatrist, Manhattan. Deft. Expert: Deft. would have called Dr. Robert Richman, orth. surg., Manhattan.

John B. and Diane Compani, indiv. and as p/n/g of John P. Compani v. State of New York

SUPRACONDYLAR FRACTURE OF THE ELBOW WITH DEFORMITY

Binghamton, NY

$241,000 for John P. Compani; $6,735 for John B. Compani and Diane Compani.

$247,735.00

VIII/42-22 FOUR-YEAR-OLD INFANT INJURED ON PLAYGROUND EQUIPMENT — DAMAGES TRIAL — SUPRACONDYLAR FRACTURE OF THE ELBOW WITH DEFORMITY

John B. and Diane Compani, indiv. and as p/n/g of John P. Compani v. State of New York Claim No. 70958 15-Page Decision Filed 3/26/91 Judge Israel Margolis, Court of Claims, Binghamton

DECISION: $241,000 for John P. Compani; $6,735 for John B. Compani and Diane Compani. Breakdown: $22,000 for past pain and suffering; $175, 000 for future pain and suffering; $14,000 for future economic loss; $30, 000 for loss of household services. Clmt.’s parents were awarded $2,235 for past medical expenses and $4,500 for loss of Clmt.’s services until he reaches majority.

Clmt. Atty: Paul H. Wein of Wein & Soronen, Guilderland

Deft. Atty: John E. McComb, Asst. Atty. General

Facts: Clmt., age 4 at the time, was injured when he fell from a ladder on a piece of playground equipment at Northhampton Beach State Park on 5/27/84. In an earlier decision, Judge Margolis ruled that the Deft. was negligent and that Clmts. had not in any way contributed to their son’s injuries.

Injuries: displaced supracondylar fracture of the left elbow with closed reduction. Clmt. has had difficulty coping with the disability of his left arm in that he cannot do certain things, such as climbing trees or swimming, and this often causes embarrassment and ridicule from other children. Clmt.’s left elbow is obviously deformed and the Court noted that when Clmt. was on the stand, he became suddenly aware of Judge Margolis looking at his elbow, and attempted to position his arm to make it less noticeable. Medical experts for both Deft. and Clmts. agreed that Clmt. suffered an enlargement of the growth plate as a result of the accident. The Court also found that Clmt. has a high chance of bursitis or arthritis in his adult years. Clmt.’s expert testified that Clmt. will have difficulties performing tasks that require pushing, pulling, or overhead work that requires the full extension of his arms.

Clmt. also sought damages for future lost earnings. The Court noted that in order to do so, he must offer evidence that gives a less speculative picture of what those damages might be. Decision at p. 5, citing Alferdoff v. Casagrande, 122 A.D.2d 183, 184-185; Wanamaker v. Pietraszek, 107 A.D.2d 1020, 1021-22. Clmt.’s vocational rehabilitation expert testified that tests he administered to Clmt. indicated that he would not be able to work in a field that would require medium to heavy lifting of weights of 25 lbs. and over, that Clmt. would probably not attend college, and that he would therefore be earning approximately 13. 239% less at any job he might take in the future. Clmt.’s economist testified that he based the amount for future loss of earnings on the figures provided by Clmt.’s rehabilitation expert and computed his figures according to the income of those in Clmt.’s area with a similar background . Deft.’s vocational expert testified that the tests administered to Clmt. to arrive at these figures were not conclusive and presupposed that Clmt. ‘s condition would never improve. Using the same database, Deft. argued that Clmt.’s expert neglected the fact that Clmt. was an above average student, and therefore more likely to attend college, and that the figures used by Clmt. in determining the likely salary he would be earning included both sexes and that as an adult, Clmt. would not be limited to manual labor. Deft. contended that in all of its tests, Clmt. scored above average. Deft. also noted that there was no evidence provided that showed that Clmt. would have to engage in a job that would require lifting of any type. The Court agreed with Deft.’s argument and refused to award future lost earnings as Clmt. failed to show within reasonable parameters, what those damages, if any, would be. Decision at p. 8. The Court noted that Clmt. would not logically seek out a job in an area that would require a certain amount of heavy lifting, primarily because he knew it would be impossible for him to perform well in the job. Judge Margolis noted that Clmt. might be more likely to attend college and seek out the education that would permit him to earn more money with less physically demanding labor. Decision at p. 10.

The Court ruled that Clmt.’s parents were entitled to awards for medical expenses made necessary as a result of Clmt.’s injuries, but could not recover for future medical expenses as they were to be awarded solely to the infant Clmt. Decision at p. 12, citing Cuming v. Brooklyn City R.R. Co., 109 N.Y. 95; Clark v. Eighth Avenue R.R. Co., 238 N.Y. 246; Beyer v. Murray, 33 A.D.2d 246. The Court awarded Clmt. $30,000 for future home assistance. He also awarded Clmt.’s parents $6,735 in medical expenses and loss of services until he reaches majority, and legal fees. Decision at p. 14. Clmt. Experts: Dr. Thomas Eagan, orth. surg., Gloversville; Edmond Provder, vocational rehabilitation expert, Manhattan; Dr. Thomas Kershner, economist, Schenectady. Deft. Expert: Dr. Kenneth Reagles, vocational rehabilitation expert, Syracuse.

Mi Ho v. Robert Goldstein and Jane J. Ho

HERNIATIONS, LUMBAR FUSION

Hudson County, NJ

The case was settled for $250,000.

$250,000

On Feb. 1, 2014, plaintiff Mi Ho, 55, was a passenger in a car traveling on Route 1/9 in North Bergen. When her car was on an entrance ramp to Interstate 495, traffic began to merge and another vehicle sideswiped hers on the driver’s side. Mi Ho claimed injuries to her back and right shoulder.

Mi Ho sued the driver of the vehicle that sideswiped her car, Robert Goldstein, alleging negligence. She also sued her host driver, Jane Ho.

Each driver blamed the other for the accident.

William and Debra Schmitt v. Gregory and Eunice Hamanjian v. Christine Misle/Gregory and Eunice Hamanjian v. Christine Misle v. William Schmitt

FRACTURED HIP

Self-employed carpenter

Suffolk, NY

Hamanjian 100% liable in the first action. Subsequently settled for $250,000 after a jury was picked on damages in May 1993. Defense verdict in the second action (6/0).

$250,000.00

XI/4-14 MOTOR VEHICLE HEAD-ON COLLISION FRACTURED HIP

William and Debra Schmitt v. Gregory and Eunice Hamanjian v. Christine Misle/Gregory and Eunice Hamanjian v. Christine Misle v. William Schmitt 14119/88 5-day trial Verdict 1/15/93 Judge Alfred M. Lama, Suffolk Supreme

VERDICT: Hamanjian 100% liable in the first action. Subsequently settled for $250,000 after a jury was picked on damages in May 1993. Defense verdict in the second action (6/0).

Pltf. Atty: Thomas J. Connelly, North Babylon, for Schmitt as Pltf.

Donald Perry for George Rockman, North Babylon, for Hamanjian as Pltf.

Deft. Atty: Thomas V. Incantalupo of Mitchell & Incantalupo, Forest Hills, for Hamanjian

Frank O’Brien of Allard, Fallon & Adler, Smithtown, for Misle

William E. Morrissey, Jr. of Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick, for Schmitt as Deft.

Facts: On 6/24/88, Pltf. Schmitt, a 37-year-old self-employed carpenter, was struck head-on by a vehicle driven by Deft. Hamanjian (100% liable). Deft. Hamanjian crossed over Wellwood Ave. in Lindenhurst, struck a car driven by Deft. Misle, who was heading south, and then hit Pltf.’s vehicle. Hamanjian claimed that either Misle or a phantom vehicle cut him off, causing the accident. Deft. Hamanjian also contended that Misle and Pltf. were driving too fast in a school zone and that Pltf. was driving too closely behind Misle. Hamanjian died before trial of unrelated causes.

Injuries: (not before the jury settled for $250,000 after liability trial) fractured acetabulum requiring closed reduction. Pltf. claimed that he will require a future hip replacement. He returned to work as a carpenter 9 months after the accident. Demonstrative evidence: photos of accident scene and vehicles. Specials: $14,000 in medical expenses. Carrier: National Grange for Hamanjian. Pltf. Experts: Pltf. would have called Dr. Edmond Provder, vocational rehabilitation, Manhattan; Dino Rossini, seat belt expert, Hempstead; Dr. Michael Carroll, orth. surg., Massapequa.

Larry Alkenburgh, as f/n/g of Dale Alkenburgh v. Charles Glessing

CLOSED HEAD INJURIES – COMA

Montgomery, NY

$1,390,411, reduced to $277,671.20 for 80% comparative negligence of Pltf. (6/0).

$277,671.20

XIII/21-17 MOTOR VEHICLE INFANT PEDESTRIAN EMERGENCY DOCTRINE CLOSED HEAD INJURIES COMA CONFUSION OVER JURY INSTRUCTIONS RESULTS IN DOUBLE REDUCTION OF VERDICT FOR COMPARATIVE NEGLIGENCE

Larry Alkenburgh, as f/n/g of Dale Alkenburgh v. Charles Glessing 671/91 3-week trial Verdict 6/9/95 Judge Robert P. Best, Montgomery Supreme

VERDICT: $1,390,411, reduced to $277,671.20 for 80% comparative negligence of Pltf. (6/0). Breakdown: $25,000 for past pain and suffering ; $140,411 for past medical expenses; $300,000 for future pain and suffering; $650,000 for future impairment of earning capacity; $225,000 for future physical therapy; $50,000 for future medical supervision. Jury: 3 male, 3 female.

Pltf. Atty: Daniel R. Santola of Powers & Santola, Albany

Deft. Atty: Thomas J. Pronti of Moran & Pronti, Clifton Park

Facts: The infant Pltf., 9 years old at the time of the accident, ran out into the street in front of his home on Rte. 5 in St. Johnville on 4/24/90 at approximately 5:30 PM, and was hit by a car owned and operated by Deft. Glessing. Pltf. contended that Deft. had time to see him and avoid the accident. Pltf.’s accident reconstruction expert testified that Deft. had an adequate sight distance, given his speed. He also testified that Deft. was within the speed limit. Pltf. contended that Deft. was looking for traffic approaching the intersection and was not paying attention to the road in front of him.

Deft. presented two eyewitnesses, one positioned ahead of the accident scene, and one after the scene. Each witness testified that Pltf. ran out into traffic almost directly in front of Deft., and that Deft. had no time to react. The court charged the jury with the emergency doctrine.

Injuries: closed head injuries. Pltf. was in a coma for a week. He was hospitalized for 17 days and was then sent to a head trauma center until August 1990. He was allowed to enter fifth grade, but Pltf. is making slower progress than his classmates. Pltf. noted that his grades are lower now than they had been before the accident, and that he performs poorly on standardized tests. Pltf.’s expert testified that because Pltf. will probably not be able to complete or even enter college, he will be forced to take lower paying jobs. He claimed that Pltf. may be limited to minimum wage positions for the rest of his life. Deft.’s expert testified that Pltf. is as intelligent now as he was before the accident.

Note: No mention was made in the charge that the jury should not reduce line items for comparative negligence. The jury found that Deft. was negligent, that this negligence was the proximate cause of Pltf.’s injuries, but that Pltf. was also negligent and his negligence was also a proximate cause of his injuries. The jury allocated 20% negligence against Deft. and 80% comparative negligence against Pltf. The jury was polled and discharged by the court, and the clerk then entered the judgment. About 15 minutes later, the jury appeared at the office of the jury commissioner to inform him that there had been a mistake. The jury claimed that they had already reached a figure that represented the deductions for comparative negligence. The $1,390,000 was the final sum, already accounting for Pltf.’s negligence. The jury was then given a new verdict sheet and was told not to reduce the figure for comparative negligence, but they returned a second verdict for $1,390,000. Demonstrative evidence: computer animated accident reconstruction. No offer; demand: $1,000,000. Jury deliberation: 6? hours. Carrier: Continental. Pltf. Experts: Wayne McCracken, accident reconstruction; Albany; Dr. Maria Lefrak, neuropsychiatrist, Albany; Dr. John Fortune, surgeon, Albany; Dr. Edmond Provder, vocational rehabilitation, Manhattan. Deft. Expert: Dr. Robert McCaffrey, neuropsychiatrist, Albany.

Thomas Howard v. Poughkeepsie Up-To-Date Co., Inc. and Johnny Coleman

FRACTURED HIP AND WRISTS

Poughkeepsie Town Highway Dept. Employee

Dutchess, NY

This action settled for a structured settlement with a present value of $301,222.

$301,222.00

VIII/42-30 MOTOR VEHICLE — MOTORCYCLE — U-TURN — FRACTURED HIP AND WRISTS

SETTLEMENT: Thomas Howard v. Poughkeepsie Up-To-Date Co., Inc. and Johnny Coleman Date of Settlement 1/22/91 Dutchess Supreme

Pltf. Atty: John J. Basso of Spiegel, Pergament, Brown & Basso, Poughkeepsie

This action settled for a structured settlement with a present value of $301,222.

On 7/19/89, Pltf., a 23-year-old employee of the Poughkeepsie Town Highway Dept., was riding a motorcycle when he was struck by a car owned by Poughkeepsie Up-To-Date Co. and driven by Deft. Coleman. Pltf. claimed that Deft. made an improper U-turn into the path of his motorcycle. Injuries: non-displaced fracture of the hip; bilateral fractured wrists. The right wrist required surgery. Pltf. claimed that he has lost sensation and grip strength. He was hospitalized for 24 days and lost 11 weeks from work. Pltf. claimed that he will develop arthritis in the hip and wrists in the future. Settlement apportionment: The structure has a guaranteed payout of $1,140,749. Pltf. Experts: Dr. Samuel Simon, orth. surg., Poughkeepsie; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Andrew Weintraub, Ph.D., economist, Rhinebeck.

Ronald E. Blake v. 155 East 79th Street, LLC and T.G. Nickel & Associates, LLC

CONCUSSION AND NECK INJURIES

Carpenter

Kings County, New York

The parties negotiated a pretrial settlement. T.G. Nickel & Associates’ insurer, which was contractually obligated to indemnify 155 East 79th Street LLC, agreed to pay $340,000. The negotiations were mediated by Robert Adams, of National Arbitration and Mediation Inc.

$340,000

On July 9, 2014, plaintiff Ronald Blake, 61, a carpenter, worked at a construction site that was located at 155 E. 79th St., in Manhattan. During the course of his work, Blake was struck by plywood and lumber that had fallen from an overhead location. Blake claimed that he sustained injuries of his face, his head, his neck and a shoulder.

Blake sued the premises’ owner, 155 East 79th Street LLC, and the construction project’s general contractor, T.G. Nickel & Associates, LLC. Blake alleged that the defendants violated the New York State Labor Law.

Blake claimed that the plywood and lumber were components of a temporary frame that had been securing a freshly poured concrete floor. He claimed that the material was dislodged by a worker utilizing a crowbar. Blake’s counsel contended that Blake should not have been permitted to work beneath an area in which the frame was being dismantled. He contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Blake was not provided the proper, safe equipment that is a requirement of the statute.

Defense counsel did not dispute liability.

Angelo Abramo v. ARG Trucking

FRACTURES OF THE PATELLA AND ORBITAL BONES

Warehouseman and truck driver

NY

$700,000, reduced to $350,000 for 50% comparative negligence of Pltf. (6/0).

$350,000.00

X/29-11 MOTOR VEHICLE CENTER LINE FRACTURES OF THE PATELLA AND ORBITAL BONES

Angelo Abramo v. ARG Trucking 15402/90 7-day trial Verdict 10/13/92 Judge Robert E. Whelan, Erie Supreme

VERDICT: $700,000, reduced to $350,000 for 50% comparative negligence of Pltf. (6/0). Breakdown: $100,000 for past pain and suffering; $150,000 for future pain and suffering; $50,000 for past lost earnings; $400,000 for future lost earnings. Post-trial motions were denied. Jury: 3 male, 3 female. Notice of Appeal by Deft.

Pltf. Atty: John F. Humann of Matusick, Spadafora & Verrastro, Buffalo

Deft. Atty: Harry F. Mooney of Hurwitz & Fine, Buffalo

Facts: Pltf., a 35-year-old warehouseman and truck driver, was injured in an automobile accident on 5/8/87 at approximately 11:30 PM at the controlled T-intersection of Grand Island Blvd. and Kenmore Ave. in Buffalo. The road was clear and dry, but was not well illuminated. Pltf. was stopped at a stop sign on Kenmore Ave., waiting to make a left onto Grand Island Blvd. when, he claimed, he checked for traffic and saw the headlights of a distant truck to his left. Pltf. checked traffic to his right, saw that it was clear, and proceeded into the intersection. He testified that as he entered the intersection, the approaching truck applied its brakes and began to skid. Pltf. contended that the truck skidded into his lane and collided head-on with his car. Deft. claimed that Pltf. crossed the center line and hit its truck. Pltf.’s expert testified that if Deft.’s driver had not applied his brakes, he would not have gone into an uncontrollable skid, nor would he have struck Pltf.’s vehicle, which was already in the other lane of traffic and out of Deft.’s way. Skid marks led from Deft.’s lane into Pltf.’s lane. Deft.’s expert testified that the skid marks were from Pltf.’s car, which slid back across the center line after entering Deft.’s lane. Pltf.’s accident reconstruction expert testified that the skid marks came from Deft.’s truck.

Injuries: fractured left patella requiring arthroscopic surgery; fractured orbital bone; five broken ribs; lumbar sprain and strain. Deft. conceded the knee injury and fractured orbital bone, but contested the back problems. Pltf. admitted on cross-examination that his back pain was not related to the accident. Pltf. was out of work for 5 months and went back to work for 1? years. He testified that when the company he worked for went bankrupt, no one else would hire him. Pltf.’s rehabilitation specialist testified that Pltf. could only perform sedentary work. Demonstrative evidence: overhead photograph of the accident scene. Offer: $ 30,000; demand: $100,000. Jury deliberation: 6 hours. Pltf. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Paul Cozad, accident reconstruction, Human Factors Co., Buffalo; Dr. John Murphy, Ph.D., economist, Canisius College; Dr. Andrew Mattaliano, physiatrist, Buffalo. Deft. Experts: John Serth, accident reconstruction, Albany; Dr. John Repicci, orth. surg., Buffalo.

Vincent Micalizzi v. Stanford Superior Drug, Inc. and Barry Smith

BILATERAL CARPAL TUNNEL SYNDROME

Mover

Bronx, NY

$400,000 (6/0).

$400,000.00

XI/2-6 MOTOR VEHICLE REAR END NO-FAULT QUESTION ON RADICULOPATHY AND BILATERAL CARPAL TUNNEL SYNDROME

Vincent Micalizzi v. Stanford Superior Drug, Inc. and Barry Smith 16145/91 2-week trial Verdict 6/16/93 Judge Gerald Crispino, Bronx Supreme

VERDICT: $400,000 (6/0). Breakdown: $25,000 for past pain and suffering; $10,000 for future pain and suffering; $115,000 for past lost earnings; $250,000 for future lost earnings. Post-trial motions were denied. Jury: 2 male, 4 female.

Pltf. Atty: Jeff S. Korek of Gersowitz, Libo & Korek, Manhattan

Deft. Atty: Paul Bibuld of Armienti, Brooks, Lubowitz, DeBellis & Dunphy, Manhattan

Facts: Pltf., a 47-year-old mover, claimed that on 1/29/91 his vehicle was struck in the rear by Deft.’s vehicle on the Bruckner Expwy. in the Bronx. Pltf. testified that he was traveling in the middle lane and that he slowed down as he passed a disabled car in the left lane. Deft. contended that Pltf. stopped short to avoid another vehicle in the left lane that had cut him off to avoid the disabled car. Pltf. denied that he was cut off by another car.

Injuries: cervical radiculopathy. Pltf. claimed that he developed bilateral carpal tunnel syndrome 3 months after the accident. He underwent surgery to both wrists. Pltf. also testified that he was unable to return to his previous employment and can only work at a sedentary job. He received Workers’ Compensation. Deft. denied that Pltf. sustained a serious cervical injury under the No-Fault Law, Insurance Law ? 5102(d), arguing that the carpal tunnel syndrome was related to Pltf.’s 25-year employment as a mover. Demonstrative evidence: diagram of median nerve; photographs of accident site; model of spine; economic chart. Offer: $150, 000; demand: $300,000; amount asked of jury: $900,000. Jury deliberation: 1? days. Carrier: Liberty Mutual. Pltf. Experts: Dr. Howard Finelli, orth. surg., Bronx; Dr. Jay Rosenbloom, examining neurosurgeon, Bronx (for Workers’ Compensation claim); Albert Levenson, economist, Woodmere; Edmond Provder, vocational rehabilitation, Manhattan. There was no expert testimony for Deft.

Fuson Ateser v. Robert and David Becker

REFLEX SYMPATHETIC DYSTROPHY, CHRONIC PAIN SYNDROME, HERNIATED LUMBAR DISCS, KNEE INJURIES?

Filmmaker

New York, NY

$900,000, reduced to $441,000 for 51% comparative negligence of Pltf. (6/0).

$441,000.00

XV/20-4 MOTOR VEHICLE BICYCLE REFLEX SYMPATHETIC DYSTROPHY, CHRONIC PAIN SYNDROME, HERNIATED LUMBAR DISCS, KNEE INJURIES, AND POST-TRAUMATIC STRESS DISORDER

Fuson Ateser v. Robert and David Becker 103042/95 3-week trial Verdict 6/6/97 New York Supreme

Judge: Joan A. Madden

Verdict: $900,000, reduced to $441,000 for 51% comparative negligence of Pltf. (6/0). Breakdown: $20,000 for past pain and suffering; $80,000 for future pain and suffering; $100,000 for future medical care; $400,000 for future rehabilitative therapy; $200,000 for future custodial care; $100,000 for handicapped-accessible apartment. Pltf. s and Defts. post-trial motions were denied. Deft. s motion for a collateral source hearing was granted. Jury: 5 male, 1 female. Notice of Appeal by Pltf.

Pltf. Atty: Michael B. Ronemus of Ronemus & Vilensky, Manhattan

Deft. Atty: Clara M. Villarreal of Oshman & Helfenstein, L.L.P., Manhattan, for David Becker

Thomas E. Mehrtens of Downing & Mehrtens, Manhattan, for Robert Becker

Facts: Pltf., a 44-year-old filmmaker at the time, was riding a bicycle on Sixth Ave. in Manhattan on 9/13/94 at approximately 6:45 PM when she was struck and dragged by a vehicle owned by Deft. Robert Becker and driven by Deft. David Becker. Pltf. claimed that Deft., northbound on Sixth Ave., accelerated through a yellow light at a high rate of speed, and then made a right turn onto 14th St. from the third driving lane on Sixth Ave. Pltf. presented three independent eyewitnesses who corroborated her version of the accident. Although Pltf. was riding on the right-hand side of the road, there was a bike lane on the left side, and Pltf. produced a bicycle lane expert who testified that the bike lane was unsafe, substandard, and negligently designed. Pltf. did not claim, however, that the negligent design was a proximate cause of the accident.

Deft. contended that he was traveling at a normal rate of speed and had already completed the turn when Pltf. s vehicle struck his rear passenger door at a high rate of speed. Deft. produced the responding police officer who testified that the point of impact was Deft. s right rear passenger door.

Injuries: post-traumatic reflex sympathetic dystrophy (rsd); herniated discs at L4-5 and L5-S2; prolapsed disc at C6-7; frozen right shoulder; bursitis in the left shoulder requiring nonsteroidal injections; chronic pain syndrome; post-traumatic stress disorder; torn medial and lateral menisci; internal derangement of the left knee with injury to the anterior and posterior cruciate ligaments. Pltf. underwent arthroscopic surgery to the left knee. Pltf. claimed that after the surgery, she had temperature and color changes in her left leg with severe pain and burning, allodynia, and an inability to bear weight on the left leg. Pltf. also claimed that she was unable to use her right arm. She became confined to a wheelchair in July 1995, and required daily home health care. Pltf. was admitted to N.Y.U. Medical Center for 4 days and to the Rusk Institute for 2 months. Pltf. claimed that she has severe chronic pain which has rendered her totally disabled. She underwent extensive physical and rehabilitative therapy, sympathetic block injections, and psychological treatment. Pltf. s economist testified that she has sustained a total economic loss of $16,409,800 for lost earnings, loss of fringe benefits, cost of aides and medical care, and the cost of medical equipment. Deft. denied that Pltf. suffered any neurological injuries that could be confirmed clinically or by objective diagnostic tests. Deft. s reflex sympathetic dystrophy specialist, who testified over Pltf. s objections because he was disclosed the day before jury selection, denied that Pltf. suffered from that condition. He also argued that Pltf. suffered from somatization disorder, which incorporated malingering within the psychological/neurological diagnoses. Deft. also contended that Pltf. s future lost earnings were based on her receiving a Master s degree at New York University. Deft. called a representative from that college who testified that Pltf. never obtained that degree, nor has she taken any credits towards it. Demonstrative evidence: Day in the Life video; economic flow charts. Specials: $180,000. Offer : $1,250,000 prior to trial; demand: $5,500,000; amount asked of jury : $26,000,000. Jury deliberation: 5 days. Carriers: Newark Insurance Co. and Chubb.

Pltf. Experts: Dr. Brian Hainline, Vice Chairman of the Neurology Department, Hospital of Joint Diseases; Dr. Edwin Richter, physical and rehabilitative medicine, Rusk Institute; Dr. Mary Ellen Hecht, orth. surg., Manhattan; Dr. Robert Parkin, psychiatrist, Manhattan; Dr. Thomas Kershner, economist, Saratoga Springs; Dr. Edmond Provder, vocational rehabilitation, Manhattan; Georges Jacquemart, engineer and bike lane expert, Manhattan.

Deft. Experts: Dr. Jose Ochoa, neurologist, RSD specialist, Portland, Oregon; Dr. Seymour Block, psychiatrist, Great Neck; Dr. William Kulak, orth. surg., Manhattan; Dr. Betty Mintz, neurologist, Manhattan.

Charles and Oscar Small v. Yonkers Contracting Co. v. Rice Mohawk

HERNIATED DISC, ENCEPHALOPATHY, MULTIPLE LEG FRACTURES, AND PSYCHOLOGICAL INJURIES

Ironworker

Queens, NY

$635,000 (6/0).

$635,000.00

XV/13-12 LABOR LAW SCAFFOLD ACCIDENT HERNIATED DISC, ENCEPHALOPATHY, MULTIPLE LEG FRACTURES, AND PSYCHOLOGICAL INJURIES

Charles and Oscar Small v. Yonkers Contracting Co. v. Rice Mohawk 10301/93 6-day trial Verdict 7/1/97 Queens Supreme

Judge: Arthur W. Lonschein

Verdict: $635,000 (6/0). Breakdown: $100,000 for past pain and suffering; $180,000 for future pain and suffering; $100,000 for past lost earnings; $240,000 for future lost earnings; $15,000 for medical expenses.

After the verdict, the court awarded judgment over in favor of Yonkers Contracting and against Rice Mohawk for the full amount of the award on damages, under the contractual indemnity clause in the Rice Mohawk subcontract.

Pltf. Atty: Mario Biaggi, Jr. of Biaggi & Biaggi, Manhattan

Deft. Atty: Stephen M. Cohen of Brody & Fabiani, Manhattan, and Theodore H. Rosenblatt of Ayers & Thompson, Manhattan, for Yonkers Contracting

Mary L. Maloney of Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Manhattan, for Rice Mohawk

Facts: The accident occurred on 3/16/93. Pltf., a 35-year- old ironworker, was employed by Third-party Deft. Rice Mohawk and was working on the reconstruction of the I-495 viaduct when a protective shield that he was installing collapsed, causing him to fall 60 feet to the ground. Pltf. brought suit against Yonkers Contracting as the general contractor, and against the New York City Dept. of Transportation (NYCDOT) as the owner. On 8/18/95, the court awarded summary judgment on liability for Pltf. under Labor Law ?240 against Yonkers and the City of New York. Prior to the damages trial, the court vacated the judgment against NYCDOT and dismissed Pltf. s complaints and all cross-complaints against that Deft. This trial was on damages only.

Injuries: herniated discs at C5-6 and L5-S1; head trauma causing encephalopathy with neurological dysfunction and psychological injuries; fractured femur requiring open reduction and internal fixation; fractured tibia and fibula; fractured toe. Pltf. claimed that his injuries have prevented him from working except in some sedentary jobs. His economist testified that Pltf. has lost earnings and lost fringe benefits of over $4,000,000. Deft. contended that Pltf. has recovered and is able to work as an ironworker. Offer: $1,000,000; demand: $5,000,000; amount asked of jury: $14,700,000. Jury deliberation: 1? hours. Carrier: Admiral Insurance.

Pltf. Experts: Dr. John Vallely, orth. surg., Brooklyn; Dr. Irving Friedman, neurologist, Brooklyn; Dr. Lawrence Shields, neurologist, Brooklyn; Jan Burte, psychologist, Ph.D.; Edmond Provder, vocational rehabilitation, Manhattan; Conrad Berenson, Ph.D., economist, Woodbury.

Deft. Experts: Dr. Robert Richman, orth. surg., Manhattan; Dr. Ralph Olson, neurosurgeon, Manhattan.

Paul Macri v. Park South Associates, Inc.; Starrett Housing Corp. ; and HRH Construction Corp. v. G.M. Crocetti and Paramount Plumbing Co., Inc.;

MULTIPLE LEG FRACTURES

Plumber

New York, NY

$465,500 (6/0).

$465,500.00

IX/21-1 FALLDOWN CONSTRUCTION ACCIDENT LABORER SLIPS ON DEBRIS WHO HAD RESPONSIBILITY FOR CLEANING AT ISSUE MULTIPLE LEG FRACTURES

Paul Macri v. Park South Associates, Inc.; Starrett Housing Corp. ; and HRH Construction Corp. v. G.M. Crocetti and Paramount Plumbing Co., Inc.; VAL Floors; P&M Sorbarra-Argus Construction; and F. Garofalo Electric 629/89 3-week trial Verdict 9/11/91 Judge Burton S. Sherman, New York Supreme

VERDICT: $465,500 (6/0). Breakdown: $100,000 for past pain and suffering; $50,000 for future pain and suffering; $63,000 for past lost earnings; $240,000 for future lost earnings; $12,500 for medical expenses. Liability: HRH 65%; Paramount Plumbing 20%; Crocetti 5%; VAL Floors 5%; P& M Sorbarra 5%; Garofalo 0% negligent. Starrett was let out during trial. Jury: 3 male, 3 female.

Pltf. Atty: Donald Miller of Landau & Miller, Manhattan

Deft. Atty: John J. Laden of Gordon & Silber, Manhattan, for Park South, Starrett, and HRH

A. Lorenzo Bryan of Peter Broderick, Manhattan, for G.M. Crocetti

Thomas E. Tookey of Quirk & Bakalor, Manhattan, for Paramount

Lawrence A. Doris of Flynn, Gibbons & Dowd, Manhattan, for VAL Floors

Howard S. Robin of Joseph Conklin, Manhattan, for P&M Sorbarra

Gary P. Muhlstock of Ahmuty, Demers & McManus, Albertson, for Garofalo

Facts: This incident occurred on 9/23/87 at about 10 AM at the Trump Park Building at 100-106 Central Park South. Pltf., a 58-year-old plumber employed by Paramount Plumbing (20% liable), was sent to an apartment in the building to complete a plumbing connection under the kitchen sink. Pltf. claimed that when he walked into the kitchen, he slipped and fell on debris on the floor. He testified that the debris consisted of cardboard, tile, wood, and sawdust.

Pltf. contended that Defts. were negligent under the Labor Law for failing to provide him with a safe place to work. Defts. claimed that the condition was open and obvious and that Pltf. should have seen the debris on the floor and avoided it. Defts. also contended that it was the responsibility of HRH, the general contractor (65% liable), to clean and maintain the area. HRH contended that as Pltf.’s employer, it was Paramount’s responsibility (20% liable) to ensure that the room was clean and free of debris before sending Pltf. in to work. Park South was the owner of the building, G.M. Crocetti (5% liable) installed the tile floor, VAL Floors (5% liable) installed the parquet floor, P&M Sorbarra (5% liable) was the carpentry subcontractor, and Garofalo (not liable) was the electrical subcontractor. Starrett was let out during trial.

Evidence indicated that each of the Defts. had done some work in the room before the accident. HRH contended that Defts.’ employees should have cleaned up after themselves. Defts. contended that HRH employed 26 workers whose only job was to keep the area clean. They also contended that the type of debris that was left on the floor was the type that the laborers should have cleaned. Defts. also claimed that HRH was obligated by its contract with the subcontractors to keep the area clean. Defts. noted that HRH was unable to produce its work records at trial. The general contractor could only produce records from 2-3 days, out of 30 days of work.

Also at issue was when each Deft. had worked in the kitchen. P&M Sorbarra had been one of the last to work there because its workers had installed the molding and kitchen cabinets. Sorbarra argued that the floor was clear of debris because its workers needed an open space within which to install the kitchen cabinets. G.M. Crocetti, which installed the tile floor, also was one of the last to work in the kitchen, but it claimed that the floor was clear, arguing that a tile floor must be absolutely clean and free of debris to set properly.

Injuries: comminuted spiral fracture of the tibia and fibula requiring closed reduction. Pltf. claimed that he has some shortening in the leg. He also claimed that he still experiences pain in his knee. He claimed that he is no longer able to work. Defts. contended that Pltf.’s leg healed well with no complications. No offer; demand: $750,000. Pltf. Experts: Edmond Provder, vocational rehabilitation expert, Manhattan; Marissa Sacher, physical therapist, New Jersey; Dr. Murray Burton, orth. surg., Manhattan. Pltf. also called Kevin O’Lenahan, a union representative, who testified as to Pltf.’s union benefits. Deft. Expert: Dr. Stanley Liebowitz, orth. surg., Manhattan.

Salvatore Fundaro v. City of New York and New York City Board of Education

FRACTURED ANKLE AND KNEE INJURY

Student

NY

$650,000, reduced to $487,500 for 25% comparative negligence of Pltf.

$487,500.00

XV/14-6 FALLDOWN SCHOOL STAIRWAY FRACTURED ANKLE AND KNEE INJURY

Salvatore Fundaro v. City of New York and New York City Board of Education 21037/88 9-day trial Verdict 7/18/97 Kings Supreme

Judge: Gilbert Ramirez

Verdict: $650,000, reduced to $487,500 for 25% comparative negligence of Pltf. Breakdown: $60,000 for past pain and suffering; $ 80,000 for future pain and suffering; $80,000 for past lost earnings; $ 150,000 for future lost earnings; $280,000 for future medical expenses. A post-trial motion is pending. A Notice of Appeal by Deft. is likely.

Pltf. Atty: Herbert S. Subin of Subin Associates, Manhattan

Deft. Atty: Jonathan O. Michaels, Asst. Corp. Counsel

Facts: Pltf., a 17-year-old student at the time, claimed that on 3/29/88 he slipped and fell on a wet piece of paper towel on a stairwell at the New Utrecht High School in Brooklyn. He testified that he saw other debris on the stairs earlier that day, but did not specifically notice the piece of paper towel. He claimed that Defts. were negligent in failing to properly maintain the stairwell. Defts. contended that they had no notice of the dangerous situation, and argued that Pltf. was comparatively negligent.

Injuries: chip fracture of the ankle resulting in osteochondritis, requiring arthroscopic surgery; ruptured anterior cruciate ligament requiring three knee surgeries including a patellar tendon graft. Pltf. claimed that he has difficulty walking and climbing stairs, and cannot stand or sit for long periods of time. Defts. disputed the severity of Pltf. s injuries and argued that his injuries were not the result of this accident. Pltf. was not employed at the time of trial, but claimed that he would have been a police officer if he had not suffered these injuries. Defts. argued that although Pltf. had passed the police test on his second try, he did not participate in any of the remaining parts of the testing. Demonstrative evidence: diagrams of the ankle and knee; diagrams showing the surgeries performed; anatomical model of the foot. Jury deliberation: 8 hours.

Pltf. Experts: Dr. Howard Balensweig, orth. surg., Manhattan; Anna Dutka, economist, Manhattan; Dr. Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Expert: There was no expert testimony for Defts.

Jagjit Singh v. Village of Hempstead Housing Authority

BACK, NECK AND SHOULDER INJURIES

Construction Worker

Nassau County, NY

The parties negotiated a pretrial settlement. The Village of Hempstead Housing Authority’s insurer agreed to pay $492,500. The negotiations were mediated by Allen Hurkin-Torres, of Jams.

$492,500

On Nov. 18, 2011, plaintiff Jagjit Singh, 38, a construction worker, worked at a renovation site that was located at 20 Totten St., in Hempstead. Singh and other workers were constructing a scaffold. The scaffold’s materials were being hoisted to an overhead location, where they were being assembled. During the course of the work, Singh, who was situated at ground level, was struck by metal components that had plummeted several stories after having been unloaded from the hoist and dropped by a worker. Singh’s head and shoulders were struck, and he claimed that he sustained injuries of his back, his face, his neck and his shoulders.

Singh sued the premises’ owner, the Village of Hempstead Housing Authority. Singh alleged that the Village of Hempstead Housing Authority violated the New York State Labor Law.

The case was filed in Queens County Supreme Court, but it was later transferred to Nassau County Supreme Court.

Singh claimed that a safety helmet could have prevented or limited his injuries, but that a helmet was not provided. He further claimed that he had been told that a helmet was not available.

Singh’s counsel contended that the Village of Hempstead Housing Authority violated New York Codes, Rules, and Regulations title 23, parts 1.7(a)(1) and 1.7(a)(2), which specify that workers must be provided protection against overhead hazards. He also contended that the Village of Hempstead Housing Authority violated New York Codes, Rules, and Regulations title 23, part 1.8(c)(1), which specifies that safety helmets must be provided to workers located in areas in which they may be exposed to falling objects. He contended that the violations established that the site was not properly safeguarded, as required by Labor Law § 241(6).

Singh’s counsel also contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Singh was not provided the proper, safe equipment that is a requirement of the statute.

Defense counsel contended that Labor Law § 240(1) was inapplicable because hoisting was not in progress when the metal components were dropped.

Minaxi Barot, indiv. and as m/n/g of Krunall Barot, inf. v. Brookdale Hospital Medical Center; Kingsboro Medical Group; Leslie Desrouleaux; Sook Marino, M.D.; and Ranjani Chandramouli

FAILURE TO TIMELY PERFORM CAESAREAN SECTION ALLEGEDLY RESULTS IN BRAIN DAMAGE

Kings, NY

Defense verdict for Kingsboro Medical Group and Desrouleaux (6/0)

$0.00

XVI/14-12 MEDICAL MALPRACTICE CHILDBIRTH FAILURE TO TIMELY PERFORM CAESAREAN SECTION ALLEGEDLY RESULTS IN BRAIN DAMAGE DEFENDANT CLAIMED RETARDATION IS CONGENITAL DEFENSE VERDICT

Minaxi Barot, indiv. and as m/n/g of Krunall Barot, inf. v. Brookdale Hospital Medical Center; Kingsboro Medical Group; Leslie Desrouleaux; Sook Marino, M.D.; and Ranjani Chandramouli 21059/93 3?-week trial Verdict 6/16/98 Kings Supreme

Judge: Michelle Weston Patterson

Verdict: Defense verdict for Kingsboro Medical Group and Desrouleaux (6/0). Defts. Brookdale, Marino, and Chandramouli settled for $175,000 during trial. Post-trial motions were denied. Jury: 3 male, 3 female.

Pltf. Atty: Peter D. Rosenberg of Rosenberg, Minc & Armstrong, Manhattan

Deft. Atty: Glen T. Pewarski of Gerard J. Marulli, Manhattan, for Kingsboro Medical Group and Desrouleaux

Philip D. Lerner of Aaronson, Rappaport, Feinstein & Deutsch, Manhattan, for Brookdale Hospital, Marino, and Chandramouli

Facts: In early 1987, Pltf. Minaxi Barot, age 27 at the time and approximately 4 months pregnant, underwent a sonogram that showed that the fetus was in a breech position. Pltf. contended that Deft. Desrouleaux negligently failed to follow the infant with serial sonography to determine if the fetus remained in a breech presentation. She contended that he should have performed an earlier Caesarean section, before the onset of labor on 7/6/87. Pltf. mother presented to Brookdale Hospital at 3 AM on 7/6/87, 2 days past her due date, in early labor. A non-stress test performed upon admission was normal. A resident examining Pltf. on admission noted the breech position and the need for a Caesarean. The chart indicated that Ms. Barot did not want a Caesarean, although she denied this at trial.

Pltf. claimed that Deft. Dr. Desrouleaux failed to timely appear at the hospital after being called at 3 AM. He was first noted to be present at 6:15 AM. Pltf. also contended that Deft. delayed in timely performing the Caesarean, which was performed at 7: 30 AM. “Mild” stained meconium fluid was noted during labor and during laryngoscopic suction of the infant following birth. His Apgar was 9 at 1 minute, but an elevated respiration rate required his transfer to the neonatal intensive care unit within hours of his birth. Pltf. claimed that the infant suffered hypoxia during labor and further hypoxia following delivery, due to meconium aspiration. A resident initially read a chest X-ray of the infant as showing meconium aspiration, but an official radiology reading 1 week later noted retained pulmonary fluid only, which is consistent with birth by a Caesarean section.

Pltf. contended that the infant’s newborn nursery course of elevated respiration, episodes of poor feeding, mild hypotonia, and lethargy were evidence of an hypoxic episode at the time of labor or delivery. The infant has an IQ of 45, which is in the moderate-to- severe range of mental retardation.

Deft. Dr. Desrouleaux claimed that he was first contacted after completion of the non-stress test sometime after 4 AM, and that his arrival at the hospital at approximately 6:15 AM was within accepted standards. He also claimed that the time frame in which the Caesarean was performed was within accepted practice because the Caesarean was performed on an elective basis. He denied that there was any evidence of fetal distress prior to the delivery. Deft. claimed that the 1-minute Apgar of 9, as well as the lack of major neurological signs in the first 24 hours of birth, disproved an hypoxic episode of a magnitude that could cause brain damage. He attributed the infant’s elevated respiration rate to transient tachypnea. Pltf. contended, however, that strips from external fetal monitoring performed during labor were not retained by the Hospital.

Pltf.’s expert contended that the infant’s low CO2 blood level 2 days after birth was evidence of metabolic acidosis caused by hypoxia during labor and delivery. Deft. argued that an arterial blood gas performed 3 hours after birth showing a pH of 7.41 conclusively ruled out acidosis from labor and delivery. Deft. also contended that the infant’s brain damage was genetic in origin. Pltf. argued that multiple chromosome tests, all of which were normal, that were performed on the infant and parents ruled out genetic origin with reasonable certainty. Deft. contended that a physical examination of the infant revealed multiple minor physical anomalies that indicated an increased likelihood of genetic malformation of the brain. Deft. also contended that the child’s treating physicians’ records supported a genetic etiology for his mental retardation. Pltf.’s vocational rehabilitation expert testified that Pltf. has future lost earnings of $43,000 per year starting at age 22, with a 43-year work life expectancy. The infant, age 10 at trial, attends a special school. Demonstrative evidence: enlargements of hospital and medical records; photographs of the infant’s sibling, who had similar physical characteristics, but normal intelligence. Specials: $43,000 per year for lost earnings (work life expectancy of 43 years). Offer: $175,000; demand: $3,000,000; amount asked of jury: $7,000,000. Jury deliberation: 20 minutes. Carriers: Group Counsel Mutual for Kingsboro and Desrouleaux; Combined Coordinating Counsel for Brookdale Hospital.

Pltf. Experts: Dr. Sidney Siegel, ob-gyn, Boca Raton, Florida (retired); Dr. Leon Charash, pediatric neurologist, Hicksville; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Dr. Frank Manning, ob-gyn, Bronx; Dr. Ingrid Taff, pediatric neurologist, Great Neck; Dr. Radha Giridharan, subsequent treating pediatric neurologist, Brooklyn.

Haydee Moreno v. Lisa and Allen Roberts

HERNIATED DISC AND PSYCHOLOGICAL INJURIES

Grocery store owner and home health aide

Dutchess, NY

Defense verdict on damages (6/0). Liability: Pltf. 25%; Deft. 75% negligent.

$0.00

VII/2-25 MOTOR VEHICLE – LEFT TURN – NO-FAULT AND CAUSATION QUESTION ON HERNIATED DISC AND PSYCHOLOGICAL INJURIES

Haydee Moreno v. Lisa and Allen Roberts 2499/87 8-day trial Verdict 10/7/88 Judge Joseph Jiudice, Dutchess Supreme

VERDICT: Defense verdict on damages (6/0). Liability: Pltf. 25%; Deft. 75% negligent. Pltf.’s motion to set aside the verdict on damages was denied. Notice of Appeal by Pltf.

Pltf. Atty: Marino D’Orazio and Richard M. Moran of Moran, Spiegel, Pergament & Brown, Poughkeepsie

Deft. Atty: Michael A. Hayes, Jr. of McCabe & Mack, Poughkeepsie

Facts: The accident occurred on 3/13/85 at approximately 7:22 PM at the intersection of Salt Point Tpke. and Innis Ave. in Poughkeepsie. Pltf., a 40-year-old grocery store owner and home health aide, claimed that she was injured when Deft.’s vehicle made a left turn into the path of her vehicle. Injuries: herniated disc and aggravation of spinal stenosis condition; psychological damage and inability to work in the future; chronic depression. Deft. alleged that Pltf.’s injuries were due to a prior condition and denied that Pltf. sustained a serious injury under the No-Fault Law, Insurance Law ? 5102(d). Lost earnings: $288,360. Jury deliberation: 2 hours. Offer: $50,000; demand: $300,000; amount asked of jury: $550,000. Pltf. Experts: Dr. Andrew Weintraub, Ph.D., economist, Temple Univ.; Edmond Provder, occupational therapist; Dr. Sheldon Krems, Ph.D., psychologist. Deft. Expert: Dr. Fiaz Choudhri, neurosurgeon, Albany.

Steven Pamphile v. NYCHA

LEAD POISONING

Student

Kings, NY

Defense verdict (5/1)

$0.00

XV/40-14 LEAD POISONING EXPOSURE AT APARTMENT COMPLEX DEFENSE VERDICT

Steven Pamphile v. NYCHA 46070/93 3-week trial Verdict 2/13/98 Kings Supreme

Judge: Vasilios J. Arniotes

Verdict: Defense verdict (5/1). Jury: all female.

Post-trial motions were denied.

Pltf. Atty: Jeffrey Pittel, of counsel to E. Tanenhaus, P.C., Manhattan

Deft. Atty: Alan Kaminsky of Wilson, Elser, Moskowitz, Edelman & Dicker, Manhattan

Facts: This action arose out of Pltf. s alleged exposure to lead at Deft. s apartment complex located on Ave. X in Brooklyn. Pltf. was an 8-year-old student at the time of the exposure beginning in June 1992. Pltf. moved from Haiti to Deft. s apartment complex in June 1992. He received a blood test as part of a school physical that showed a lead level of 43 mg/dl. The Department of Health inspected Deft. s apartment and found significant violations of unacceptable amounts of lead in the paint, and issued an order to abate the condition. Pltf. received chelation treatment for his lead poisoning. Subsequent apartment inspections by the Housing Authority and by Pltf. s own experts were inconclusive as to whether the level of lead in the paint was within allowable limits.

Injuries: brain damage; neurological injuries; diminished IQ; attention deficit disorder. Pltf. claimed that he is unable to perform tasks competently, and claimed that he has poor verbal abilities as a result of his exposure to lead. Deft. contended that Pltf. s lead poisoning occurred in Haiti. Deft. further argued that the lead level in the apartment was acceptable, and argued that the XRF machine used by the Department of Health was not calibrated properly, leading to inaccurate findings that resulted in the violation being issued.

Demonstrative evidence: enlargements of the XRF machine readings; school and hospital records. Jury deliberation: 3 hours. Specials: alleged lost earnings of $2,000,000.

Pltf. Experts: Dr. Robert Karp, pediatrician, Brooklyn; Dr. David Dorfman, neuropsychologist, Manhattan. Dr. William Berg, economist, Manhattan.

Deft. Experts: Dr. William Head, neurologist, Staten Island; Dr. Edmond Provder, vocational rehabilitation, Manhattan.

Mario and Ester Seoane v. Seatrain Lines, Inc.

FALLDOWN – LADDER

Seaman

New York, NY

Defense verdict for Seatrain Lines. Costello & Sons dismissed during trial. Other Third-party Defts. discontinued during trial

$0.00

V/1-12 MARITIME ACCIDENT – FALLDOWN – LADDER

Mario and Ester Seoane v. Seatrain Lines, Inc. (Third-party Pltf.) v. Costello & Sons Ship Servicing Co., Inc.; Fox Ladder & Scaffold Co., Inc.; McAllister Bros., Inc.; and Louisville Ladder Co., Inc. 27937/82 3-week trial Verdict 11/7/85 Judge Louis Grossman, New York Supreme

VERDICT: Defense verdict for Seatrain Lines. Costello & Sons dismissed during trial. Other Third-party Defts. discontinued during trial.

Pltf. Atty: Paul C. Matthews, Manhattan

Deft. Atty: Joseph E. Donat of Bigham, Englar, Jones & Houston, Manhattan, for Seatrain

Bruce F. Gilpatrick of Heidell, Pittoni & Moran, Manhattan, for Costello

Jeffrey I. Schwimmer of Sheft, Wright & Sweeney, Manhattan, for Fox Ladder

Celestino Tesoriero of Grainger, Tesoriero & Bell, Manhattan, for McAllister

Jeffrey W. Herrmann of Javits, Robinson, Brog, Leinwand & Reich, Manhattan, for Louisville

Facts: On 7/19/79, Pltf., a 47-year-old seaman, fell from a ladder while aboard a ship owned by his employer, Costello & Sons. The ship was docked at a port owned by Seatrain, the owner of the ladder. Pltf. was using the ladder to climb onto a barge owned by McAllister to unhook containers when, he claimed, the ladder slid, causing him to fall. Pltf. claimed that the ladder was defective because it was curved and lacked rubber shoes. The major issue at trial was notice. Pltf.’s foreman testified for Pltf. that he had told a Seatrain representative about the ladder before the accident. Seatrain’s foreman testified that he could not recall that conversation. The ladder was not available for inspection. Fox Ladder & Scaffold was the party who sold the ladder to Seatrain 10 years before the accident. Louisville manufactured the ladder . Injuries: comminuted fracture of the distal ulna with subsequent nonunion of the ulnar styloid process. The bone had not healed by the time of trial, 6 years after the accident. Deft. contended that Pltf. was capable of performing physical labor despite the nonunion. Pltf. also alleged significant psychological injuries including suicidal ideation. Offer: $300,000; demand: $750,000. Pltf. Experts: Dr. Leo Koven, orth. surg., Manhattan; Dr. Edward Allegra, treating psychiatrist; Dr. Edmond Provder, rehabilitative medicine; Matityahu Marcus, economist. Deft. Expert: Dr. Vincent Lodico, surgeon, Manhattan; Dr. Mortimer Shapiro, neurologist, Manhattan; Dr. Harold Bennett, subsequent treating physician; Dr. Morris Ehrenreich, Ph.D., rehabilitation specialist; Dr. James Ferretti, psychiatrist; Reginald King, maritime expert.

Sylvia Tawiah, as m/n/g of Jessica Joffie v. Milton Haynes, M.D.

ERB’S PALSY AND FRACTURED HUMERUS

NY

Defense verdict (5/1)

$0.00

XIII/41-5 MEDICAL MALPRACTICE CHILDBIRTH ERB’S PALSY AND FRACTURED HUMERUS

Sylvia Tawiah, as m/n/g of Jessica Joffie v. Milton Haynes, M.D. 15172/91 2-week trial Verdict 3/12/96 Judge Barry Salman, Bronx Supreme

VERDICT: Defense verdict (5/1). Post-trial motions were denied. Jury: 3 male, 3 female.

Pltf. Atty: Kevin S. McDonald of Queller & Fisher, Manhattan

Deft. Atty: John T. Evans of Belair & Evans, Manhattan

Facts: The infant Pltf. was born at Lenox Hill Hospital on 10/6/89. Deft. was the attending obstetrician. Pltf. claimed that Deft. failed to properly deliver the child when he recognized the presence of shoulder dystocia. The infant was born with severe Erb’s palsy and Klumpke’s paralysis of the left arm and hand. Pltf. claimed that Deft. used excessive lateral traction while delivering the child’s head, causing nerve damage to the brachial plexus. She contended that the fact that the infant also suffered a fractured humerus was proof that Deft. used excessive force.

Deft. contended that he was faced with a medical emergency and that he used various recognized maneuvers to deliver the child. He also denied that he used excessive lateral traction in the delivery.

Injuries: Erb’s palsy and Klumpke’s paralysis of the left arm and hand; avulsion fracture of the left proximal humerus (diagnosed by X-ray shortly after birth); cosmetic deformity. Pltf. claimed that she will have no useful function of the left arm and hand. Pltf. also contended that she will suffer a 20% diminution in her earning capacity. Deft. denied that Pltf. will have any diminution in future earnings. Demonstrative evidence: medivisual of shoulder dystocia; model of pelvis. Specials: $10,000. Offer: $200,000; demand: $1,500,000. Jury deliberation: 5 hours. Carrier: PRI. Pltf. Experts: Dr. David Sherman, ob-gyn, Manhattan; Dr. Leon Charash, pediatric neurologist, Hicksville; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Expert: Dr. James Lemmon, ob-gyn, East Orange, New Jersey; Dr. Richard Reuben, pediatric neurologist, Manhattan.

Fred and Mary Olsen v. City of New York

HERNIATED DISC

New york city police officer

New York, NY

Defense verdict.

$0.00

IV/6-83 JONES ACT – HARBOR PATROL POLICE OFFICER FALLS ON GANGWAY – HERNIATED DISC

Fred and Mary Olsen v. City of New York 83 Civ 0462 5-day trial Verdict 3/19/85 Judge Constance Baker Motley, Southern District

VERDICT: Defense verdict.

Pltf. Atty: Stanley F. Meltzer of Meltzer & Fishman, Manhattan

Deft. Atty: Vito A. Cannavo, Asst. Corp. Counsel

Facts: Pltf. was a 31-year-old New York City police officer assigned to the Harbor Unit of the police department. He claimed that on 12/2/81, he slipped and fell on a gangway while entering a police harbor boat. Pltf. brought this action under the Jones Act, claiming that the surface of the ramp was not skid-resistant. Pltf. also alleged that the gangway was set at too steep an angle (35G). Pltf. called several other police officers as eyewitnesses. They also testified that they had complained about the condition of the gangway to their superiors before the accident. Deft. contended that there was insufficient proof that the accident occurred at the time and place that Pltf. alleged. In addition, Deft. argued that if the accident occurred as Pltf. described, he was contributorily negligent in failing to use an available handrail and in not wearing nonskid deck shoes. In response, Pltf. argued that he was not allowed to wear deck shoes. Deft. also called the sergeant who supervised Pltf. He testified that no complaints regarding the condition of the gangway were made to him. Injuries: herniated discs at L-4, L-5 and L-5, S-1 (confirmed by CAT scan). Pltf. retired from the police department on disability. An economist testified that Pltf.’s lost earnings amounted to $ 600,000. Deft. called a neurologist who testified that Pltf.’s back injuries were apparently preexisting. Amount asked of jury: $2,500,000. Pltf. Experts: Howard Silfin, engineer; Herbert Stillwaggon, maritime expert; Irwin Stricker, economist; Dr. Edmond Prouder, rehabilitative medicine; Dr. Mark Kashen, radiologist, Great Neck; Dr. Gary Korenman, neurologist, Manhattan; Dr. Stephen Zolan, orth. surg., Hicksville. Deft. Expert: Dr. Murray Budabin, neurologist, Manhattan.

Myron Myron v. Millar Elevator Industries, Inc.; 60 East 42nd St. Assoc.; Lincoln Building Assoc.

FALL – TWO STORIES

Summer replacement freight elevator operator

New York, NY

Defense verdict (6/0). GAL Manufacturing was dismissed at the end of Pltf.’s case. The case proceeded against Millar and Helmsley-Spear, the building owner.

$0.00

VIII/31-6 ELEVATOR ACCIDENT — MALFUNCTIONING LOCKING DEVICE — PLAINTIFF STEPPED INTO EMPTY SHAFT — DEFENSE VERDICT SET ASIDE 9 MONTHS AFTER VERDICT

Myron Myron v. Millar Elevator Industries, Inc.; 60 East 42nd St. Assoc.; Lincoln Building Assoc.; and GAL Manufacturing Corp./Millar Elevator Industries, Inc. v. Helmsley-Spear, Inc. and GAL Manufacturing Corp. 3156/86 14-day trial Verdict 4/11/90 Judge Martin B. Stecher, New York Supreme

VERDICT: Defense verdict (6/0). GAL Manufacturing was dismissed at the end of Pltf.’s case. The case proceeded against Millar and Helmsley-Spear, the building owner. After the defense verdict for both of these Defts., the Third-party claim by Millar against Pltf.’s employer was dismissed. The verdict was set aside in an 8-page decision by Judge Stecher dated January 1991. See below. Jury: 2 male, 4 female.

Pltf. Atty: Gerald J. Mondora of Michael N. David, Manhattan

Deft. Atty: Kevin W. O’Reilly of Furey, Furey, Lapping, Keller, O’Reilly & Watson, Hempstead, for Millar

Seymour Dicker of Smith, Mazure, Director & Wilkins, Manhattan, for 60 East 42nd St. Assoc.

Charles Hansmann of Weiner, Aliano & Catlett, Garden City, for GAL

C. William Yanuck, Manhattan, for Helmsley-Spear

Facts: The accident occurred on 7/5/85 between 7-8 AM at the Lincoln Building at 60 East 42nd St. in Manhattan. Pltf., age 23 at the time, was a summer replacement freight elevator operator in the building. He claimed that when he reported to work on the morning of the accident, he unlocked the freight elevator door and stepped inside. The elevator was not at his floor, and Pltf. fell two stories down the elevator shaft. Pltf. contended that the locking device on the elevator malfunctioned, allowing him to open the shaftway doors even though the elevator was not there. He claimed that Millar Elevator, which had a maintenance contract for the building, negligently maintained the elevator. Millar’s contract required that one of its employee be present in the building during all business hours.

Defts. contended that the accident could have occurred even if the locking device was working correctly, if the prior elevator operator had not fully closed the freight door. Defts. also contended, through the testimony of a Millar employee, that the arm on the safety lock did not function because of dirt or dust on the spring mechanism. Defts. also produced evidence from the hospital record that Pltf. was intoxicated at the time of the accident. Injuries: open comminuted fracture of the left femur requiring open reduction and internal fixation with an intermedullary rod; multiple scars. He used a cane at trial. Pltf. also claimed that he suffered two herniated discs. He was hospitalized for 3 months and had not returned to work by the time of trial. Defts. contended that Pltf. had bulging discs, not herniated discs, and that he had a congenital deformity of the lumbosacral spine. They also contended that the bulging discs were not pressing on any nerves and did not cause much pain. Pltf.’s treating orthopedic surgeon testified that the damage to Pltf.’s leg was permanent. On cross-examination, however, he testified that Pltf. made a good recovery from the fracture and that he could have returned to some form of work 2 years after the accident. Demonstrative evidence: human skeleton; elevator locking device; photos of the accident scene. Specials: $50,000 for medical expenses; $90,000 for future lost earnings. Offer: $500,000; demand: $750,000 and waiver of Workers’ Compensation lien; amount asked of jury: $3,500,000. Jury deliberation: 6 hours. Pltf. Experts: Dr. John Croft, orth. surg., Manhattan; Dr. Nathaniel Shafer, internist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan (testified that Pltf. is unable to perform anything other than light-duty work); Edmond Mantell, economist, Scarsdale . Deft. Experts: Henry Huntt, elevator expert; Dr. Mortimer Shapiro, neuropsychiatrist, Manhattan; Dr. Robert M. Richman, orth. surg., Manhattan.

Pltf.’s motion for a new trial was granted in an 8-page decision by Judge Stecher, dated January 1991. In his request to set aside the verdict, Pltf. contended that the Court erred in failing to charge res ipsa loquitur; that the Court erred in failing to strike Henry Huntt’s testimony; and for allowing evidence of Pltf.’s use of alcohol before he arrived at work on the day of the accident. Pltf. also contended that Defts. made material misrepresentations and he sought “sanctions and costs agains [sic] the defendants in the sum of $150,000.” Decision at p. 1.

On the issue of the material misrepresentation, Pltf.’s attorney claimed that it was represented to him that the elevator parking lock was mechanical, not electrical, but that the prototype presented as evidence by GAL was electrical. Judge Stecher noted, “[t]hat the prototype brought to Court by GAL could have had an electrical attachment is thoroughly irrelevant. The evidence produced by the plaintiff was that the safety lock in actual use was mechanical only. Why plaintiff seeks sanctions against the other defendants who did not produce the prototype is less than clear.” Judge Stecher then denied the application for sanctions. Decision at p. 2, emphasis added.

The judge found that evidence that Pltf. drank alcohol on the morning of the accident was properly admitted. The emergency room physician had testified by deposition that Pltf. himself told him that he drank alcohol that morning, and he testified that the knowledge that Pltf. used alcohol was necessary for both diagnosis and treatment of his injuries. Decision at pp. 2-3.

On the issue of Mr. Huntt’s testimony, Judge Stecher noted that Huntt was asked by Deft. Millar’s attorney if he had an opinion as to whether the accident was caused by negligent maintenance of the parking lock device, and if he had an opinion as to the cause of the accident. Judge Stecher noted that Pltf. did not object to either of these questions until Mr. Huntt answered them, and he found that it was inappropriate to wait for the answer before objecting to the question. Decision at pp. 3-4.

On the issue of res ipsa loquitur, Judge Stecher found that it should have been presented to the jury although Pltf. brought this case exclusively on the theory that Defts.’ negligence caused the safety lock to fail. Judge Stecher noted that although the parking lock and the electrical interlock devices operate separately, it may be inferred that one or the other failed to work, and that this failure “would not ordinarily occur in the absence of negligence.” Decision at p. 7. Mr. Huntt had testified that the interlock was able to run even though the door was within of an inch of closing. He also contended that of an inch is acceptable under the New York City Administrative Code and ANSI. Judge Stecher found that Huntt’s testimony that of an inch is acceptable under both codes “should in no way have deprived plaintiff of the benefit of the res ipsa charge – and it is not for the Court to speculate on whether it would have changed the jury’s verdict.” Decision at p. 7. He also found that a res ipsa loquitur charge “does not require evidence of actual or constructive notice.” Decision at p. 8, citing Williams v. Swissotel New York, Inc., 152 A.D.2d 457. He granted Pltf.’s motion to set aside the verdict reinstating the complaint, Third-party complaints, and cross-complaints to all Defts. but GAL, and directed a new trial.

James and Ann Kaplan v. International Paint (U.S.A.), Inc. and Courtaulds Coatings, Inc.

BOAT PRIMER CONTAINING METHYLENE CHLORIDE

Self-employed home contractor

Rockland, NY

Defense verdict on liability (5/1)

$0.00

XIII/21-20 PRODUCT LIABILITY BOAT PRIMER CONTAINING METHYLENE CHLORIDE DEFENSE VERDICT

James and Ann Kaplan v. International Paint (U.S.A.), Inc. and Courtaulds Coatings, Inc. 2384/92 6-week trial Verdict 10/10/95 Judge Alfred J. Weiner, Rockland Supreme

VERDICT: Defense verdict on liability (5/1). Post-trial motions were denied. Jury: 3 male, 3 female.

Pltf. Atty: John D. MacCartney of MacCartney, MacCartney, Kerrigan & MacCartney, Nyack

Deft. Atty: George S. Hodges of Boeggeman, George, Hodges & Corde, White Plains

Facts: Pltf., a 43-year-old self-employed home contractor at the time, claimed that he used Defts.’ product, AL200, to prime the bottom of his fiberglass boat on 5/24/91. AL200 is 90.3% methylene chloride which, when inhaled, metabolizes to carbon monoxide. Pltf. contended that the use of methylene chloride rendered the product unsafe and that the can’s label did not adequately warn potential users of the hazards of the product, as well as the precautions that should be taken and first aid instructions to be followed when using it. Pltf. testified that for most of the time that he was priming the boat, he was lying on his back underneath it, breathing in the fumes. Witnesses at the scene testified that he had completed priming and was starting to paint when he suddenly lost consciousness and had to be pulled out from underneath the boat.

Defts. argued that although methylene chloride can metabolize into carbon monoxide, the liver cannot produce enough carbon monoxide to raise the carboxyhemoglobin level to such a degree that significant or permanent injury can result. Defts. also offered proof that there were no prior similar claims or accidents in the United States. The jury found that although the label did not contain proper warnings, there was no causal relationship between the defective label and the injuries that Pltf. claimed.

Injuries: permanent brain damage including central, peripheral, and brain stem damage with multiple cranial nerve dysfunction and left parietal area involvement; loss of higher cognitive functions; memory loss; psycho-social behavioral problems. Pltf. underwent hyperbaric treatments at the University of Maryland Hospital Center for about 6 weeks and then underwent extensive rehabilitation at Rehabilitation Specialist in Hawthorne, New Jersey for almost 9 months. He claimed that he could not return to his work as a home crafter because of his cognitive difficulties and loss of memory. Defts. denied that Pltf. had been injured in the manner and to the extent claimed, and produced proof that he had filed a certificate of doing business as a home crafter in Delhi, New York. No offer; demand: $2,500,000. Jury deliberation: 6 hours. Carrier: Zurich- American on excess. Pltf. Experts: Dr. Raymond Singer, neuropsychologist and neurotoxicologist, Santa Fe, New Mexico; Edmond Provder, Ph.D., vocational rehabilitation, Manhattan; Dr. Anna Dutka, economist, Manhattan; Maryanne Kezmarsky, Ph.D., neuropsychologist, Mahwah, New Jersey; E. Patrick McGuire, warnings expert, Bernardsville, New Jersey; William Klein, C.P.A., West Nyack; Christine Eisenhardt, rehabilitation specialist, Nutley, New Jersey; Ellen Grober, Ph.D., neuropsychologist, Albert Einstein College of Medicine, Bronx (examined Pltf. for Defts.). Deft. Experts: Dr. Richard Stewart, internist and toxicologist, Racine, Wisconsin; Dr. Herbert Schaumburg, chief of neurologist and clinical neurotoxicologist, Albert Einstein College of Medicine, Bronx.

Carl Ricker, Jr. v. Metro-North Commuter Railroad and Metro Transit Authority

SCHIZOPHRENIC CLIMBS HIGH-TENSION TOWER AND COMES IN CONTACT WITH WIRES

Unemployed

NY

Defense verdict (6/0)

$0.00

XIII/4-8 RAILROAD ACCIDENT SCHIZOPHRENIC CLIMBS HIGH-TENSION TOWER AND COMES IN CONTACT WITH WIRES FAILURE TO PLACE WARNINGS DEFENSE VERDICT

Carl Ricker, Jr. v. Metro-North Commuter Railroad and Metro Transit Authority 8158/89 3-week trial Verdict 6/6/95 Judge Gerald Esposito, Bronx Supreme

VERDICT: Defense verdict (6/0). Jury: 2 male, 4 female. Post- trial motions were denied in November 1995.

Pltf. Atty: Alan M. Shapey and Abdul Mujib Mennen of Harry H. Lipsig & Partners, Manhattan

Deft. Atty: Rudyard F. Whyte of Jackson & Consumano, Manhattan

Facts: On 9/12/88 at approximately 10 AM, Pltf., age 23 and unemployed at the time, was found suffering from the effects of a severe electrical shock near the Riverdale train station. Pltf., a schizophrenic, had taken a bus from Pennsylvania to New York. He claimed that he was walking along the tracks by the Hudson River between the Riverdale and Spuyten Duyvil stations and climbed 40 feet up a high-tension tower to get a better view of the city. Pltf. testified that he came in contact with a wire containing approximately 11,000 volts, and was thrown off the tower. He was found 1?-2 days later. Pltf. argued that Deft. negligently failed to put up warning signs or fencing to prevent the public from entering the area or climbing deterrents to prevent people from climbing the tower. Pltf. testified that he was able to walk from the Riverdale park to the tower without encountering any barriers. Pltf.’s expert testified that Deft. should have installed climbing deterrents or fencing with barbed wire to deter climbers. A member of the community testified that people frequently entered the area.

Deft. contended that Pltf. was in a schizophrenic state and that he would have ignored fencing and disobeyed warning signs if they were posted . Deft. contended that the tower is in a remote area away from the public . Deft.’s expert testified that wires at such a height are a sufficient deterrent to the public and could not be insulated because they would become too heavy. Two EMS technicians testified that they found Pltf. conscious at the scene and that he said he tried to kill himself. Pltf. denied making that statement and claimed that he was found unconscious. Pltf. admitted that he abused drugs and alcohol prior to the diagnosis of schizophrenia. Deft. produced uncertified records of alcohol use following his discharge from psychiatric care.

Injuries: Pltf.’s left (nondominant) arm was burned off by the force of the electrical shock. He also suffered the loss of use of the right ( dominant) arm, burns to the head requiring a craniotomy, and third-degree burns to the femur. Pltf. remained in Jacobi Hospital for 8 months and was transferred to The Greenery, a long-care facility in Andover, Massachusetts. He received medication for his seizures, treatment for psychiatric problems, and required 24-hour care. Demonstrative evidence: graphs; maps; photographs of the location, park, and Pltf. Offer: $300, 000; demand: $5,000,000. Jury deliberation: 3 hours. Pltf. Experts: Dr. Mark Rubenstein, psychiatrist, Manhattan; Dr. Jay Rosenblum, neurologist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Jack Gordon, electrical engineer, Manhattan. Deft. Experts: Dr. William Head, neuropsychiatrist, Manhattan; Leonard Weiss, engineer, Brooklyn.

Mitchell Weiner v. Globe Business Furniture, Inc.

SPONDYLOLISTHESIS, SPONDYLOSIS, AND BULGING DISC

Bedding salesman

NY

$18,292 (8/0)

$18,292

XV/38-29 PRODUCT LIABILITY CHAIR COLLAPSE SPONDYLOLISTHESIS, SPONDYLOSIS, AND BULGING DISC SURVEILLANCE FILM

Mitchell Weiner v. Globe Business Furniture, Inc. 96 Civ 0400 5-day trial Verdict 8/29/97 Southern District

Judge: Mark D. Fox

Verdict: $18,292 (8/0). Breakdown: $14,436 for past medical expenses (stipulated to by parties); $3,856 for past lost wages for one month of lost work. Pltf. s motion for a new trial on the issue of damages was denied on 11/12/97. Judge Fox ruled that it was not inconsistent for the jury to award medical expenses and lost wages and not award for past pain and suffering.

Pltf. Atty: Andrew J. Genna of Finkelstein, Levine, Gittelsohn & Partners, Newburgh

Deft. Atty: Steven L. Wittels of Law Offices of Steven L. Wittels, Armonk

Facts: Pltf., a 35-year-old bedding salesman, claimed that he was permanently injured on 9/24/94 when a chair that he was sitting on at work collapsed. The chair was an office chair manufactured by Deft. (Model #M3). Pltf. claimed that the chair was defectively welded. Deft. conceded liability.

Injuries: spondylolisthesis; grade-I spondylosis; foraminal stenosis; bulging disc at L5-S1. Pltf. underwent multiple epidural steroid spinal injections, including a facet block, over a 3-year period. Pltf. claimed that he still experienced constant pain and that he spent most of his time laying on his back and using various pain medications. He claimed that he needed a cane in order to walk, that he could not sit or stand comfortably for more than 10-15 minutes at a time, and that sexual relations were severely hampered and painful. Pltf. contended that two courses of physical therapy and hydrotherapy failed to relieve his symptoms. His treating neurologist testified that only a spinal fusion would relieve Pltf. s pain. Pltf. s vocational expert testified that Pltf. was unable to be gainfully employed, and his economist estimated that his lost earnings and benefits would exceed $6,000,000 over his lifetime. Deft. contested the causation and severity of Pltf. s injuries. Deft. presented a surveillance video that showed Pltf. getting in and out of cars with apparent ease, wiping down his car after a car wash, and laying prostrate on a raft for a long period of time. On cross- examination, Pltf. s girlfriend testified that Pltf. engaged in certain activities, such as riding a motorized scooter which, Deft. claimed, was inconsistent with Pltf. s claimed injuries. Deft. s experts testified that Pltf. s complaints of low back pain that radiated down his legs and groin seemed out of proportion to what they saw in his X-rays and examinations. Demonstrative evidence: X- rays; surveillance video. Offer: $350,000 (or high/low of $200,000/$ 1,000,000); demand: $2,000,000; amount asked of jury: $6,000,000 for pain and suffering, plus economic losses. Jury deliberation: 1? hours.

Pltf. Experts: Dr. Jeffrey Oppenheim, treating neurosurgeon, Suffern; Dr. Joel Mandel, pain specialist/orth. surg., New Windsor; Edmond Provder, vocational expert, Manhattan; Thomas Kershner, economist, Saratoga Springs.

Deft. Experts: Dr. Richard Freeman, orth. surg., White Plains; Dr. Ronald Silverman, neurologist, Bronxville.

James Patrick Mills and James Mills v. City of New York and NYCHHC

PUNCTURED EARDRUM AND BACK AND NECK INJURIES

New York, NY

Settled during the damages trial for $35, 000.

$35,000

VIII/22-4 MOTOR VEHICLE — COLLISION WITH AMBULANCE WITHOUT WARNING LIGHTS ON — NO-FAULT QUESTION ON PUNCTURED EARDRUM AND BACK AND NECK INJURIES

James Patrick Mills and James Mills v. City of New York and NYCHHC 13308/86 11-day trial Liability verdict 2/16/88 Damages verdict 9/25/90 Judge Leland G. DeGrasse, New York Supreme

VERDICT: Defense verdict on damages (no serious injury) in case of James Patrick Mills. Pltf.’s verdict on liability in a separate trial on 2/16/88. His son, James Mills, settled during the damages trial for $35, 000. Post-trial motions were denied. Jury: 3 male, 3 female.

Pltf. Atty: Patrick J. Fogarty of Fogarty & Fogarty, Mineola

Deft. Atty: Barbara S. Finger, Asst. Corp. Counsel, on liability ( 2/16/88)

Margaret Johnson-Pertet, Asst. Corp. Counsel, on damages

Facts: Pltf. James Patrick Mills, age 56 at the time of the accident, claimed that his vehicle collided with an ambulance on 1/7/82 at 3 AM at the intersection of 110th St. and Madison Ave. in Manhattan. The ambulance was on a call at the time. Pltf. claimed that Deft.’s ambulance did not have its lights and siren on. The jury found, in a separate liability trial on 2/16/88, that Defts. were 100% negligent, and this action proceeded on damages. Injuries: James Patrick Mills (age 56 at the time of the accident, defense verdict on damages) punctured eardrum; cervical radiculopathy; post-concussion syndrome; headaches; injuries to the back and neck. Deft. contended that Pltf.’s back injuries were preexisting and were not related to this accident. Deft. also denied that Pltf. sustained a serious injury under the No-Fault Law, Insurance Law ? 5102(d). James Mills (age 29, settled during damages trial for $35,000) fractured rib; fractured teeth; scar to the lip; concussion with post- concussion syndrome. Demonstrative evidence: economist’s chart of lost earnings and benefits; photo of the damage to Pltf.’s car. Specials: $575, 302 for lost earnings. Offer: $87,500; demand: $300,000; amount asked of jury: over $1,000,000. Jury deliberation: 3? hours. Pltf. Experts: Dr. George Forster, neurologist, Manhattan; Dr. Conrad Berenson, economist, Woodbury; Dr. Malvin Coren, g.p., Bronx; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Dr. Ralph Olson, neurosurgeon, Manhattan; Dr. Morris Ehrenreich, vocational rehabilitation, Manhattan.

Andrew and Cynthia Williams v. Parkway Associates, Michael Parisi & Sons Construction, and Williams & Sons Erectors

Andrew and Cynthia Williams v. Parkway Associates, Michael Parisi & Sons Construction, and Williams & Sons Erectors

Ironworker

NY

$77,700

$77,700.00

XIV/30-9 CONSTRUCTION ACCIDENT LABOR LAW LABORER FALLS FROM HEIGHT FRACTURED ELBOW AND HERNIATED DISC SURVEILLANCE FILM

Andrew and Cynthia Williams v. Parkway Associates, Michael Parisi & Sons Construction, and Williams & Sons Erectors 14083/92 12-day trial Verdict 12/2/96 Judge W. Bromley Hall, Suffolk Supreme

VERDICT: $77,700. Breakdown: $25,000 for past pain and suffering for elbow injury; $4,200 for past pain and suffering for neck injury; $25,000 for past pain and suffering for lower back injury; $6,200 for future pain and suffering; $8,300 for future lost earnings; $9,000 for future medical expenses. Pltf. was granted summary judgment on liability. Jury: 2 male, 4 female.

Pltf. Atty: Edward J. Donlon of Congdon, Flaherty, O Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City

Deft. Atty: Joseph F. Garcia of Garcia & Stallone, Melville, for Parkway Assoc. and Parisi & Sons

Roderick Coyne of Bivona & Cohen, Manhattan, for Williams & Sons

Facts: Pltf., a 26-year-old ironworker employed by Deft. Williams & Sons, testified that on 3/4/88 he was injured when he fell from a structural apparatus at a construction site at the Islandia Office Building in Islandia. Pltf. brought this claim under Labor Law ?240. He was granted summary judgment on liability and this trial was on damages only.

Injuries: herniated disc at L4-5; fractured right (dominant) elbow; soft tissue neck injury. The radial head was surgically removed. Pltf. was out of work for 1 month. He then worked until June 1995 and has been out of work since that time, due to his injuries. Pltf. claimed that he has back pain and loss of range of motion. Pltf. s orthopedist testified that he will require surgical fusion at L4-5. Deft. argued that Pltf. no longer suffers from his injuries. Deft. produced a surveillance film of Pltf. working around his house.

Demonstrative evidence: X-rays; surveillance film. Offer: $150, 000; demand: approximately $450,000. Jury deliberation: 1 day. Carriers: Liberty Mutual for Parkway Assoc. and Parisi & Sons; State Insurance Fund for Williams & Sons. Pltf. Experts: Dr. Peter Warwick Green, orth. surg., E. Northport; Dr. Jean Jacques Abitbol, orth. surg., Commack; Conrad Berenson, Ph.D., economist, Woodbury; Dr. David Bagshaw, chiropractor, Commack; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Expert: Dr. A. Burton White, orth. surg., Great Neck.

Joann May v. Eugene Bell and DL Peterson Co.

FRACTURED PELVIS AND EXACERBATION OF FIBROMYALGIA

Assistant buyer for a plastics company

Rockland, NY

$95,000 (6/0)

$95,000.00

XV/30-32 MOTOR VEHICLE RED LIGHT LEFT TURN BY PLAINTIFF FRACTURED PELVIS AND EXACERBATION OF FIBROMYALGIA

Joann May v. Eugene Bell and DL Peterson Co. 8291/91 10-day trial Verdict 11/26/97 Rockland Supreme

Judge: William E. Sherwood

Verdict: $95,000 (6/0). Breakdown: $50,000 for past pain and suffering; $45,000 for past lost earnings. Jury: 2 male, 4 female. Notice of Appeal by Pltf.

Pltf. Atty: Jeffrey M. Adams of Adams Law Firm, New City

Deft. Atty: Arthur J. Vout?, Jr. of Vout?, Lohrfink, Magro & Collins, White Plains

Facts: Pltf., a 37-year-old assistant buyer for a plastics company, claimed that on 4/15/91 at approximately 4:30 PM she was involved in a motor vehicle accident with Deft. s car. Pltf. testified that she was making a left turn from Bradley Park Rd. onto Rte. 303 in Orangeburg when Deft. went through a red light. Deft. conceded liability and this trial was on damages only.

Injuries: fractured pelvis. Pltf. was hospitalized for 7 days and then required bed rest to treat the fracture. Pltf. claimed that she developed urinary frequency 2 years after the accident and then 1 year after that she developed fibromyalgia, an underlying dormant condition that was activated by the accident. Pltf. claimed that she was unable to return to work due to her injuries. Pltf. s occupational therapist testified that her chances of employability were low. Deft. argued that the fracture healed uneventfully and that no therapy was required. Deft. contended that the subsequent conditions were not related to the accident and argued that Pltf. had suffered from Epstein-Barr virus and present condition was psychogenic. Demonstrative evidence: photographs; X-rays; hospital charts. Offer: $400,000; demand: $650,000. Jury deliberation: 90 minutes. Carrier: Chubb.

Pltf. Experts: Dr. Raphael Levine, treating orth. surg., Westwood, N.J.; Dr. Richard King, family practitioner, Valley Cottage; Dr. Emile Berlet, urologist, Westwood, N.J.; Edmond Provder, vocational rehabilitation, Manhattan; Colleen Maher, occupational therapist; Dr. Howard Blank, rheumatologist, Suffern (subpoenaed by Pltf.).

Deft. Experts: Dr. Robert Boothe, orth. surg., Nyack; Dr. Philip Larkin, urologist, White Plains; Dr. William Head, neuropsychiatrist, Staten Island.

James Roseingrave v. Massapequa General Hospital; Morton Rothstein, D.O.; Judith and John Mark, D.O.; Robert Mashioff, D.O.; Leonard Berlin, D.O.; Lester J. Van Ess, M.D.

LACERATED URETER DURING LAPAROTOMY

Patient care assistant at Nassau County Medical Center

Suffolk, NY

$100,000 v. Van Ess. Breakdown: $50,000 for past pain and suffering; $50,000 for future pain and suffering; $0 for pecuniary damages. Defense verdict for Mashioff and Massapequa General (6/0 ).

$100,000

XVII/17-13 MEDICAL MALPRACTICE LACERATED URETER DURING LAPAROTOMY CLAIM THAT BOWEL RESECTIONS AND NEPHRECTOMY WERE UNNECESSARY JURY FINDS EXCESSIVE AMOUNT OF BOWEL WAS REMOVED

James Roseingrave v. Massapequa General Hospital; Morton Rothstein, D.O.; Judith and John Mark, D.O.; Robert Mashioff, D.O.; Leonard Berlin, D.O.; Lester J. Van Ess, M.D. 20548/93 32-day trial Verdict 8/9/99 Suffolk Supreme

Judge: Lester Gerard

Verdict: $100,000 v. Van Ess. Breakdown: $50,000 for past pain and suffering; $50,000 for future pain and suffering; $0 for pecuniary damages.

Defense verdict for Mashioff and Massapequa General (6/0 ). The claims against Rothstein, Mark, Mark, and Berlin were dismissed. Jury: 1 male, 5 female. A post-trial motion is pending.

Pltf. Atty: Henry M. Grubel, Freeport

Deft. Atty: Stephen B. Geisler of Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele & Nicholson, Garden City, for Van Ess

Frederick C. Johs of Lewis, Johs, Avallone & Bruno, Melville, for John and Judith Mark

Theodore F. Goralski of Rivkin, Radler & Kremer, Uniondale, for Rothstein

Brian R. Davey of Mulholland, Minion & Roe, Williston Park, for Massapequa General

Robert Devine of Ivone, Devine & Jensen, Lake Success, for Mashioff

Anthony Vardaro of Vardaro & Helwig, Smithtown, for Berlin

Facts: On 1/9/92, Pltf., a 42-year-old patient care assistant at Nassau County Medical Center, presented to Deft. Hospital s emergency room with chest and abdominal pain. A myocardial infarction was ruled out. On 1/16/92, he underwent an exploratory laparotomy for an alleged small bowel obstruction, with extensive intestinal resections. Deft. Van Ess performed the procedure and Deft. John Mark assisted. Pltf. developed adhesions, requiring a second exploratory laparotomy on 1/31/92, in which portions of his intestines were subjected to resections. Deft. Van Ess performed the procedure; Berlin was the attending internist; and Deft. Rothstein was the assistant surgeon. Pltf. claimed, and Defts. denied, that the large bowel was resected, particularly the cecum, ileocecal valve, and portions of the ascending colon. He contended that Defts. unnecessarily removed good tissue that did not have signs of perforations or necrosis. On 2/18/92, Pltf. was diagnosed, via a CAT scan, with an internal extravasation of urine from his right ureter, which Pltf. claimed was lacerated during the second laparotomy procedure. Pltf. refused a retrograde ureteroscopy. A nephrostomy tube was placed on 3/3/92. Defts. contended that surgery on 3/28/92 indicated that the ureter could not be repaired, and Pltf. underwent a right nephrectomy, although his kidney was still functioning. He was discharged on 5/8/92. Pltf. claimed that Deft. Mashioff should not have performed the nephrectomy, but should have repaired the urinary leak. Pltf. claimed that Deft. urologist delayed drainage of the kidney, leading to infection and the ultimate loss of the kidney. He also contended that Deft. was negligent for failing to diagnose the leakage sooner. Pltf. presented X-rays that showed a normal large bowel before 1/16/92 and no preoperative small bowel obstruction, as a possible partial small bowel obstruction had previously been relieved. Pltf. s expert testified that a barium enema performed at Brunswick Hospital on 2/3/93 revealed the absence of Pltf. s cecum, ileocecal valve, and most of his ascending colon. Pltf. s subsequent treating surgeon noted that 50% of Pltf. s small bowel had been removed. He presented hospital charts, which, he claimed, showed that the three operative reports were dictated 4-12 months after the procedures were performed. Pltf. claimed that he suffers from short bowel syndrome, post-operative malabsorption, chronic diarrhea, abdominal pain, and depression. He also claimed that the short bowel caused non- or malabsorption of his anti-seizure medication, contributing to his seizure disorder. Pltf. has not worked since the accident, and he has been hospitalized approximately 40 times since 5/92.

Defts. claimed that the first surgery was indicated and that Pltf. had a high grade obstruction. They contended that Pltf. did not have a short bowel as only 4 to 5 feet of the bowel was removed, that they had to remove Pltf. s kidney because the ureter could not be repaired, and that he was subsequently diagnosed with Munchausen Syndrome. Pltf., however, contested Munchausen Syndrome diagnosis, which is the subject of a pending action against the urologist who made this psychiatric diagnosis. Defts. argued that Pltf. had pseudo-seizures, which were confirmed by a 24-hour video EEG, and that Pltf. was not disabled from working. The jury found Dr. Van Ess negligent only for the removal of too much bowel during the second surgery. They did not find any negligence regarding the first surgery, that the kidney removal was improper, or that Pltf. was disabled from working. Demonstrative evidence: X-rays; CT scans; medical illustrations; video of Pltf. in hospital having a pseudo-seizure; pathology slides. Specials: $475,182 for past medical expenses; $265,000 for past lost earnings; $1,415,978 for future lost earnings. Jury deliberation: 2 days. Carriers: MLMIC; PRI.

Pltf. Experts: Dr. Gregory Fried, surgeon, Manhattan; Dr. Bernard Strauss, urologist, New Jersey; Dr. Charles Blatt, radiologist, White Plains; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Dr. Evan Dillon, radiologist, Manhattan; Dr. Richard Rubenstein, surgeon; East Patchogue; Dr. Arnold Melman, urologist, Bronx; Dr. Soonja Sabet, treating pathologist, Massapequa General Hospital; Dr. Gershon Ney, treating neurologist, Flushing; Dr. James Naidich, radiologist, Manhasset; Morris Ehrenreich, Ph.D., vocational rehabilitation, Manhattan.

Ann Marie Puleio v. Agustin E. Coto and J&A Trucking, No. 3:08-cv-04436-AET -DEA

Plaintiff claimed deterioration of physical condition after crash

Trenton, NJ

The parties agreed to binding arbitration with retired Superior Court Judge C. Judson Hamlin, now of Purcell, Mulcahy, O’Neill & Hawkins, LLC, in Bedminster, who awarded $890,000. The award was reduced to $875,000 under a high/low agreement (with a low of $450,000).

$890,000.00

Judge: Anne E. Thompson | C. Judson Hamlin

Date: 04-05-2011

PLAINTIFF(S)

• Patricia M. Love; Hendricks & Hendricks; New Brunswick, NJ, for Ann Marie Puleio

• Edmond Provder C.R.C.; Vocational Rehabilitation; Hackensack, NJ called by: Patricia Love
• Edward Magaziner M.D.; Pain Management; North Brunswick, NJ called by: Patricia Love
• Steven Reich M.D.; Orthopedic Surgery; North Brunswick, NJ called by: Patricia Love
• Matityahu Marcus Ph.D.; Lost Earnings (Economics); Scotch Plains, NJ called by: Patricia Love

DEFENDANT(S)

• Theodore C. Flowers; Segal McCambridge Singer & Mahoney, Ltd.; Jersey City, NJ, for Agustin E. Coto, J&A Trucking U.S.A. Inc.

• Morrie Kricun M.D.; Radiology; Elkins Park, PA called by: Theodore Flowers
• Lewis Zemsky M.D.; Orthopedic Surgery; Piscataway, NJ called by: Theodore Flowers
• Gerard Olson Ph.D.; Economics; Radnor, PA called by: Theodore Flowers
• Gary Young M.Ed., C.R.C., C.D.M.S.; Vocational Rehabilitation; West Trenton, NJ called by: Theodore Flowers

On April 22, 2007, plaintiff Ann Marie Puleio, a 47-year-old office administrator, of North Brunswick, was driving in stop-and-go traffic on the New Jersey Turnpike, in Burlington County, south of exit 17, when her car was hit from behind by a tractor-trailer owned by J&A Trucking U.S.A. Inc., and driven by Agustin E. Coto, both of Miami, Fla.

Puleio sued Coto and his employer for negligence, claiming personal injury.

The defense stipulated to liability and the matter proceeded on the question of causation.

As a result of the impact, the trunk lid of the plaintiff’s vehicle was pushed up. The plaintiff’s sister, who was a passenger in the car, got out of the car and had to tie the trunk lid down before the plaintiff could drive away from the accident scene.

The plaintiff claimed she felt a spasm in her spine and pain from her buttocks up through the middle of her back and called her brother, who owns a towing service, and asked him to have a tow truck meet her at Exit 7, but when she got to the exit, no tow truck was there, so she continued to drive slowly and in alleged pain. She dropped her sister off and went to her parent’s house, where she was encouraged to go to the hospital, but declined to do so. During the night, Puleio said her back stiffened and her pain increased, and the next day she saw her primary care physician, who sent her to St Peter’s University Hospital, in New Brunswick, where she complained of pain in her back, left arm, left hip and left leg, with a pain intensity of six. She was released with a prescription for Percocet and Flexeril and was advised to follow up with her primary care physician.

On April 30, 2007, the plaintiff was seen by her primary care physician. At that time, her weight was 180 lbs. and her blood pressure was 110/70. She complained of left hip, lower spine and left shoulder pain and her physician recommended rest and heat and prescribed Ultracet during the day and Tylenol 3 at night. She was seen again on May 21, 2007, with continued complaints of lower back, hip and shoulder pain. From May 2007 until October 2007, she tried to manage her pain and discomfort by resting and caring for herself.

In autumn 2007, the plaintiff was referred to an orthopedic specialist, who in turn referred her to a pain management specialist. Physical therapy was recommended for her SI joint, hip and shoulder. Fluoroscopically-guided hip joint injections and S1 joint, tendon and ligament injections were recommended for pain management. The plaintiff began a course of physical therapy on Oct. 30, 2007, and had 17 therapy sessions through January 2009. During this period she also underwent a series of pain management therapies that included a fluroscopically-guided injection for the right hip and a right sacroiliac joint injection. In early 2009, the plaintiff underwent a series of epidural injections.

On April 3, 2009, the plaintiff underwent a lumbar discogram. An MRI taken on Nov. 21, 2008, showed “a new central left paracentral disc herniation at L1-2 impressing upon the ventral thecal sac contributing to mild central stenosis without foraminal compromise.”

On May 27, 2009, the plaintiff had a consultation regarding her surgical options and was advised that her best option was to “live with her symptoms the way they are.” She was advised that surgery might alleviate the pain reproduced on the discogram, but “it is unlikely that she would have any improvement on her S1 joint trocanteric and buttock pain and it is possible that those symptoms could be exacerbated.”

On Oct. 14, 2009, the plaintiff’s weight was recorded as 217 lbs. and her blood pressure was recorded as 140/88. On Sept. 1, 2009, the plaintiff underwent an L2 to L4 instrumented fusion with decompression. After surgery, the plaintiff ambulated with a rolling walker. She was gradually able to ambulate independently, but uses a cane for balance and her physicians have opined that she may require a cane permanently. The plaintiff continued to experience ongoing chronic pain following the surgery and resumed pain management therapies, which her physicians contend will be required throughout the remainder of her life.

The plaintiff maintained that prior to the accident — a serious back injury and surgery notwithstanding — she was a fully independent, fully functioning single woman who lived alone. She worked for her brother and father as an office administrator in their towing and truck service center

Her full salary in 2007 was $42,175, and she also reported income for the year 2006 from the North Brunswick Township Board of Education in the amount of $5,151, for the last time she coached the girl’s junior varsity basketball team. The plaintiff said she was incapable of returning to her employment and successfully applied for and received Social Security disability benefits that commenced in November 2009. She projected that her inability to return to work would result in a $517,063 economic loss after taking into consideration the $18,312 in annual disability benefits. She also projected a $311,966 loss of services due to her inability to care for herself and perform household chores.

The defense argued that many of the plaintiff’s complaints and diagnosed conditions were an outgrowth and continuation of a prior condition that caused her to undergo lumbar spine surgery in April 1999, which entailed a fusion at L4-5 and L5-S1.

Plaintiff’s counsel countered the prior condition contentions by stressing that Puleio was fully employed and functional subsequent to the prior surgery eight years prior to this accident, had objective deterioration of her physical condition subsequent to the more recent accident, and had heretofore exercised regularly and was accustomed to walking five miles a day.

Mark Lopez v. KMA Builders Corp. v. T&E Nielson Assoc.

AMPUTATION OF TIP OF ONE FINGER

Carpenter

Suffolk, NY

Liability: Nielson 70%; KMA 30% negligent (6/0). Pltf. and Defts. had previously agreed to a $150,000 settlement, and the trial was held to determine the apportionment of liability between Deft. and Third-party Deft

$150,000.00

XVII/5-24 LABOR LAW FALL FROM RAMP AMPUTATION OF TIP OF ONE FINGER

Mark Lopez v. KMA Builders Corp. v. T&E Nielson Assoc. 445/95 2-day trial Verdict 5/26/99 Suffolk Supreme

Judge: Howard Berler

Verdict: Liability: Nielson 70%; KMA 30% negligent (6/0). Pltf. and Defts. had previously agreed to a $150,000 settlement, and the trial was held to determine the apportionment of liability between Deft. and Third-party Deft. Jury: 4 male, 2 female.

Pltf. Atty: John L. Buonora of Gallo & Buonora, Commack

Deft. Atty: David Fowler of McCabe, Collins, McGeough & Fowler, Mineola

Robert M. Bridges of Jacobson & Schwartz, Rockville Centre

Facts: Pltf., a 21-year-old carpenter, was injured on 3/3/93 while working at a site for the construction of a new home in Southampton. Pltf. claimed that he was carrying a piece of lumber that was 2×10 inches wide and 20 feet long up a ramp when he slipped on mud and fell several feet. He testified that he grabbed the foundation wall and that the piece of lumber came down on his finger. Pltf. contended that Deft. violated Labor Law ??240 and 241. Defts. conceded liability, and agreed to a settlement of $150,000. The trial was held to determine the apportionment of liability between Deft., the general contractor, and Third-party Deft., the subcontractor.

Injuries: (not before the jury $150,000 settlement) partial amputation of the distal phalanx of the middle finger of the left ( nondominant) hand. Pltf. underwent several revision surgeries. He would have claimed a 40% loss of use of his hand and 100% loss of use of the finger. He would have contended that he is no longer able to grip or hold heavy objects. He never returned to work. Jury deliberation: approximately 1 hour. Carriers: Worchester for Nielson; Providence Washington Group for KMA.

Pltf. Experts: Pltf. would have called Benjamin Gastel, vocational rehabilitation, Port Washington; Dr. Hilton Adler, plastic surgeon, Stony Brook.

Deft. Experts: Deft. would have called Edmond Provder, vocational rehabilitation, Manhattan; Dr. Jerry Ellstein, hand surgeon, Huntington.

Fred Carty v. North Shore Smithtown Development Associates, Inc.; Director Door Corp.; and Halstar Construction Co., Inc. v. Accomplished Contracting, Inc

HERNIATED LUMBAR DISCS

Carpenter

NY

This action settled during jury selection for $460,000 plus a reduction of a $171,000 Workers’ Compensation lien to $45,000.

$171,000.00

XIII/40-38 LABOR LAW CARPENTER SUFFERS HERNIATED LUMBAR DISCS WHILE UNLOADING 300-LB DOORS FAILURE TO PROVIDE PROPER UNLOADING EQUIPMENT

SETTLEMENT: Fred Carty v. North Shore Smithtown Development Associates, Inc.; Director Door Corp.; and Halstar Construction Co., Inc. v. Accomplished Contracting, Inc. 14236/91 Date of Settlement 2/96 Suffolk Supreme

Pltf. Atty: Martin Block of Sanders, Sanders, Block & Woycik, Mineola

This action settled during jury selection for $460,000 plus a reduction of a $171,000 Workers’ Compensation lien to $45,000. Pltf., a 35-year-old non-union carpenter employed by Third-party Deft. Accomplished Contracting, was injured while working at a construction site at the premises of North Shore Surgi-Center on Jericho Tpke. in Smithtown on 7/25/89. The premises were owned by Deft. North Shore Smithtown Development. Although it was not part of his job duties, Pltf. was directed by a supervisor for Deft. Halstar, the construction manager, to help him unload from a truck three solid doors manufactured by Deft. Director Door. The doors were to be transported into the premises by means of a handtruck. There were no hi-lo vehicles, forklifts, or other equipment that could have been used to unload the doors. Pltf. requested that the three doors, which were wrapped in plastic and banded together on a skid, be off-loaded separately because they were very heavy, but the supervisor refused. The truck driver slid the doors out of the back of the truck and toward Pltf., who was waiting with the handtruck. Pltf. claimed that the supervisor did not help him catch the doors, which weighed approximately 300 lbs, and they fell on Pltf.

Pltf. brought this suit under Labor Law ? 200. Defts. denied that the accident occurred as Pltf. claimed. They contended that the off- loading procedure was proper and that Pltf. was comparatively negligent.

Injuries: herniated discs at L2-3, L3-4, and L5-S1 requiring hemilaminectomies and a spinal fusion. Pltf. required five hospitalizations. He claimed that he is totally disabled. Defts. contended that Pltf. had pre-existing back injuries. Settlement apportionment: Halstar paid $350,000; North Shore Smithtown paid $50,000; Director Door paid $10,000, and Accomplished Contracting paid $50,000. Pltf. Experts: Richard Andree, Ph.D., engineer, Greenlawn; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Thomas Dowling, neurosurgeon, Smithtown.

In Soo Kim v. Tel-Ko Electric Corp. v. Jung Woo Construction

FRACTURED HIP, WRIST AND LUMBAR VERTEBRA

Construction worker

Queens, NY

$180,000 (6/0).

$180,000.00

XV/16-10 LABOR LAW SCAFFOLD FRACTURED HIP, WRIST AND LUMBAR VERTEBRA

In Soo Kim v. Tel-Ko Electric Corp. v. Jung Woo Construction 10380/89 2?-day trial Verdict 9/17/97 Queens Supreme

Judge: Orin R. Kitzes

Verdict: $180,000 (6/0). Breakdown: $80,000 for past pain and suffering; $75,000 for past lost earnings; $25,000 for past medical expenses. Post-trial motions were denied.

Pltf. Atty: Jack Martin of Edward H. Suh & Associates, Queens

Deft. Atty: Derek Barrett of Gladstein & Isaac, Manhattan, for Tel-Ko

Francis Heneghan of DeBellis & Andreotta, Melville, for Jung Woo

Facts: Pltf., a 52-year-old illegal alien and construction worker, was injured on 4/13/88 while painting a wall, when the scaffold on which he was standing rolled away and caused him to fall approximately 12 feet to the concrete floor below. Pltf. was not wearing any safety equipment. There were no witnesses to the accident, but workers at the site aided Pltf. immediately after he fell. Pltf. was granted summary judgment against Deft. Tel-Ko, and Tel-Ko was subsequently granted summary judgment against Deft. Jung Woo for common law and contractual indemnification.

Injuries: fractured pelvis and acetabulum requiring insertion of a Steinman pin; fractured left (non-dominant) wrist; spinal fracture at L-3. Pltf. was taken to Flushing Hospital from the worksite. He remained hospitalized for 3? weeks and underwent several operations on his wrist. He claimed that he cannot sit for more than 15 minutes without pain. Pltf. also contended that he has limited motion in his wrist and hip. Pltf. s experts testified that he will require a hip replacement and wrist fusion in the future. Pltf. also contended that he would pass out when he stood up to urinate. Deft. s expert agreed that Pltf. had limitation of motion in his wrist and hip, but denied the need for a hip replacement or wrist fusion. Pltf. s economist and vocational rehabilitation expert testified that as a laborer who could speak little English and with no job skills aside from being a construction laborer which he could no longer do, Pltf. was no longer employable. He estimated Pltf. s lost earnings at approximately $400,000. Demonstrative evidence: X- rays; hospital records; anatomical models; blow-ups; chart of lost earnings. Offer: $300,000; demand: $750,000. Carriers: General Accident for Jung Woo; Pawtucket Insurance Company for Tel-Ko.

Pltf. Experts: Dr. Stanley Ross, orth. surg., Forest Hills; Dr. Lawrence Shields, neurologist, Brooklyn; Conrad Berenson, Ph.D., economist, Woodbury; Edmond Provder, vocational rehabilitation counselor, Manhattan.

Deft. Expert: Dr. Irving Liebman, orth. surg., Manhattan.

Christopher Cardozo v. United Parcel Service, Inc.

DISLOCATED SHOULDER

Foreman in road works company

New York, NY

This action settled during trial for $200,000.

$200,000.00

XVI/8-46 MOTOR VEHICLE CONSTRUCTION WORKER STRUCK BY SIDE VIEW MIRROR DISLOCATED SHOULDER

SETTLEMENT: Christopher Cardozo v. United Parcel Service, Inc. 102044/96 Date of Settlement 5/8/98 New York Supreme

Pltf. Atty: Martin Block of Sanders, Sanders, Block & Woycik, Mineola

This action settled during trial for $200,000. Pltf., a 26-year-old foreman in a road works company, claimed that on 8/14/95 at 10:30 AM he was standing on a median approximately 1 foot from the road on Veterans Drive in St. Thomas, U.S.V.I., when he was struck from behind by the right side mirror of one of Deft.’s vans. Pltf. claimed that the van was speeding in a construction zone and that the driver was not paying attention to the road conditions. Pltf. did not see the UPS truck, but would have produced a co-employee who saw the incident occur.

Deft. denied that one of its trucks hit Pltf., and questioned the credibility of the witness. Deft. also argued that Pltf. failed to wear a safety vest while working at the construction site.

Injuries: dislocated left (dominant) shoulder with internal derangement requiring arthroscopic surgery; low back soft tissue injury. Pltf. claimed that he was out of work for 3 years and that was unable to return to heavy labor. Pltf.’s vocational rehabilitation expert testified that he can only perform sedentary work. Deft. argued that Pltf. sustained only soft tissue bruises and sprains, and that his shoulder was mechanically put back into place and was stable.

Pltf. Expert: Dr. Edmond Provder, vocational rehabilitation, Manhattan.

Aurella Johnson v. Overnight Transportation Co.

Patrick Vanriel v. A. Weissman Real Estate, Sun Chemical Corp. and MRT Construction v. Vetragin George Smart d/b/a Modern Woodworking

SKULL FRACTURE RESULTING IN FACIAL PARALYSIS, CONCUSSION, AND CONDUCTIVE HEARING LOSS

Laborer / Carpenter

Bronx, NY

$1,065,000. Breakdown: $500,000 for past pain and suffering; $75,000 for past lost earnings; $300,000 for future pain and suffering (38 years); $190,000 for future lost earnings (19 years ).

$1,065,000.00

XVII/32-4 LABOR LAW FALL FROM SCAFFOLD SKULL FRACTURE RESULTING IN FACIAL PARALYSIS, CONCUSSION, AND CONDUCTIVE HEARING LOSS

Patrick Vanriel v. A. Weissman Real Estate, Sun Chemical Corp. and MRT Construction v. Vetragin George Smart d/b/a Modern Woodworking 14307/94 Verdict 12/22/99 Bronx Supreme

Judge: Yvonne Gonzalez

Verdict: $1,065,000. Breakdown: $500,000 for past pain and suffering; $75,000 for past lost earnings; $300,000 for future pain and suffering (38 years); $190,000 for future lost earnings (19 years ). Jury: 2 male, 4 female.

Pltf. Atty: Nicholas C. Harris, Manhattan

Deft. Atty: Trevor Reid, Bronx, of counsel to Marshall & Bellard, Garden City, for A. Weissman and Sun Chemical

John T. Gorton of Chesney & Murphy, Baldwin, for MRT

Joseph Red of O Connor & O Connor, White Plains, for Smart

Facts: On 8/17/93, Pltf., a 30-year-old laborer/carpenter, fell from a 6-foot scaffold when it moved while he was caulking an interior window at a Sun Chemical building in Yonkers. At the time, Pltf. was working for Third-party Deft. Smart, a subcontractor for the general contractor, MRT Construction.

Prior to the damages trial, Pltf. was denied summary judgment on liability against the building s owner, Deft. A. Weissman Realty, and Deft. MRT Construction, pursuant to Labor Law ?240. Pltf. appealed, and the Appellate Division, First Department reversed the trial court s decision. Vanriel v. A. Weissman Real Estate, 691 N.Y. S.2d 446, A.D. 1st Dept., 6/8/99. rejecting Deft. s argument that Pltf. fell because of his own negligence in failing to activate a locking device for the scaffold s wheels. A trial of the third-party action was held in September 1999, and it resulted in a finding that Third-party Deft. Smart was 100% liable for its failure to properly supervise Pltf. Third-party Deft. Smart was found 100% liable for its failure to properly supervise Pltf. The jury was not charged as to negligence. An appeal by Third-party Deft. on this issue is anticipated.

Injuries: linear nondisplaced skull fracture resulting in cerebral concussion, conductive hearing loss, tinnitus, and facial nerve dysfunction and disfigurement; fractured toe. Following the accident, Pltf. was taken to the emergency room, and he was admitted to the hospital for 5 days. Two days after his release, Pltf. returned to the hospital with right facial paralysis. Although this ultimately resolved, Pltf. was left with residual nerve dysfunction. He testified that his right eye tears upon chewing and that area around his right eye is always visibly constricted. Deft. claimed that any residual paralysis or facial nerve damage is not disfiguring . Deft. s otolaryngologist acknowledged that Pltf. suffered partial hearing loss, but testified that Pltf. does not have a hearing disability. Deft. s neurologist testified that Pltf. had some nerve deficits as a result of the facial palsy, but that Pltf. made an excellent recovery.

Pltf. testified that he lived in Jamaica and worked as a carpenter for 10 years before moving to the United States. He claimed that at the time of the accident, he had been working for Deft. MRT for 1 month doing carpenter s work, although he was compensated as a laborer. He also worked several other side jobs, one of which was for Third-party Deft. Smart. He contended that if the accident had not occurred, he would have become a carpenter in the United States and he would have earned a carpenter s, not a laborer s, salary. Pltf. claimed that he could no longer work as a carpenter because he experiences dizziness. Deft. claimed that there was no evidence that Pltf. would have become a carpenter and that he should only be compensated for his lost earnings as a laborer for the 1? year immediately after the accident until he found other employment as a kitchen worker. Offer: $50,000 by Smart; demand: $1, 500,000. Jury deliberation: 1 day. Carriers: Travelers for Defts.; State Insurance Fund for Smart.

Pltf. Experts: Dr. Stephen Klass, neurologist, New Rochelle; Dr. Mark Laurence Fox, otolaryngologist, Scarsdale; Dr. Edmond Provder, vocational rehabilitation, Manhattan; Seymour Barcun, Ph.D., economist, Metuchen, New Jersey.

Deft. Experts: Dr. Alvin Katz, otolaryngologist, Manhattan; Dr. Jerome Block, neurologist, Manhattan.

Aurella Johnson v. Overnight Transportation Co.

CRUSH INJURY TO FOOT

Store room clerk

NY

This action settled after Pltf. s case for $200,000.

$200,000.00

XIV/49-35 LOADING DOCK ACCIDENT CRATE FALLS ON STORE CLERK S FOOT CRUSH INJURY TO FOOT

SETTLEMENT: Aurella Johnson v. Overnight Transportation Co. 1274/96 Date of Settlement 5/12/97 Orange Supreme

Pltf. Atty: Steven H. Cohen of Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh

This action settled after Pltf. s case for $200,000. Pltf., a 42- year-old store room clerk, claimed that on 5/23/94 she was injured when a crate fell on her foot. Pltf. claimed that Deft. delivered a crate to her employer and she told the driver where the forklift was located. She claimed that the driver told her that he was in a rush and asked her to help. The driver moved the crate to the edge of the truck, lost control of it, and the crate fell on Pltf. s foot. The crate weighed approximately 150 lbs.

Pltf. claimed that Deft. negligently unloaded the crate and that it was prudent to use the available forklift to move the crate.

Injuries: crush injury to the foot. Pltf. claimed that as a result of the injury, she walks with an impaired gait and developed low back pain. She was unable to return to work in her field and gained weight. Deft. would have argued that she had received treatment for prior foot problems and low back complaints, that she was heavy prior to the incident, and that she failed to seek job retraining.

Demonstrative evidence: drawings of the foot; model of the spine; medical document; employment records. Pltf. Experts: Dr. Joel Mandel, orth. surg., New Windsor; Edmond Provder, vocational rehabilitation, Manhattan; Dr. George Steiner, orth. surg., Poughkeepsie. Deft. Experts: Dr. Edward Quinn, internist, New Paltz; Dr. James Dickson, orth. surg., Rye.

Joseph Iocovello v. Salvio Construction

NO-FAULT QUESTION ON BULGING DISC AND SPINAL STENOSIS

N.Y.C. sanitation worker

Bronx, NY

Defense verdict on damages.

$0.00

XI/22-6 MOTOR VEHICLE LEFT TURN NO-FAULT QUESTION ON BULGING DISC AND SPINAL STENOSIS DEFENSE VERDICT

Joseph Iocovello v. Salvio Construction 17887/90 8-week trial Verdict 9/23/93 Judge Barry Salman, Bronx Supreme

VERDICT: Defense verdict on damages. Jury: 2 male, 4 female.

Pltf. Atty: G. Michael Simmon for Weingrad & Weingrad, Manhattan

Deft. Atty: Joseph T. Jednak of Wilson, Bave, Conboy & Bave, White Plains

Facts: Pltf., a 44-year-old N.Y.C. sanitation worker, claimed that on 11/14/89 he was traveling on Nereid Ave. when his vehicle was struck by Deft.’s vehicle as Deft. was making a left turn onto Bronx Blvd. in the Bronx. Pltf. claimed that he had the right-of-way and that Deft. turned suddenly. Pltf. testified that the impact caused him to hit his head on the windshield. Deft. contended that Pltf. was comparatively negligent because he was speeding. Two eyewitnesses testified for each party, corroborating their testimonies.

Injuries: bulging lumbar disc; spinal stenosis; laceration to the apex of the head requiring 35 stitches and resulting in a U-shaped scar on his head. Pltf. did not get off the witness stand to show the scar to the jury. Pltf. was out of work intermittently after the accident and currently has a pending medical separation from work. He produced three sanitation workers who testified as to his future lost earnings. Pltf., a bodybuilder, claimed that he was unable to keep up with his weightlifting. On Pltf.’s back injuries, Deft. contended that they were minor. There was one positive and one negative MRI admitted into evidence. Deft. denied that Pltf. sustained a serious injury under the No-Fault Law, Insurance Law ? 5102(d). The jury found for Deft. on the No-Fault questions, and did not render a verdict on liability. Demonstrative evidence: hospital records; Dept. of Sanitation letters; photographs of Pltf. before the accident, the vehicles, Pltf.’s scar; MRI; X-rays; models and drawings of spine. Specials: $650,000 for future lost earnings; $54,000 for past lost earnings. Offer: $200,000; demand: $500,000; amount asked of jury: $2,200, 000. Jury deliberation: 1? days. Carrier: CNA. Pltf. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Dr. Robert Hyman, orth. surg., Manhattan. Deft. Expert: Dr. Lawrence Kaplan, neuropsychiatrist, Manhattan

Peter Hill v. Roberta Liford

CAUSATION OF INJURIES WITH VEHICLE

U.P.S Driver

New York, NY

Defense verdict (6/0)

$0.00

XI/14-6 MOTOR VEHICLE PEDESTRIAN DEFENSE VERDICT ON CAUSATION OF INJURIES

Peter Hill v. Roberta Liford 16254/88 3-week trial Verdict 7/6/93 Judge Edward J. Greenfield, New York Supreme

VERDICT: Defense verdict (6/0). Jury: 2 male, 4 female.

Pltf. Atty: Jeffrey S. Lisabeth, Garden City

Deft. Atty: Robert J. Conway of Marshall, Conway & Wright, Manhattan

Facts: The accident occurred on 10/5/88. Pltf., a 29-year-old U. P.S. driver, testified that he parked his truck on the north side of East 88th St. between Fifth and Madison Aves. in order to make a delivery. Deft. parked her 1986 Mercedes Benz on the south side of the same street and turned off the engine. Pltf. contended that he loaded a handtruck and crossed the street, and that Deft. then turned on her car and it “bolted,” crossing the street and hitting Pltf.’s handtruck. The Mercedes was leased, and was subsequently returned to the dealer. It was never located.

Injuries: herniated disc at L4-5 with laminectomy; radiculopathy; testicular pain. Pltf. did not complain of any back injuries until 4 months after the accident. Pltf.’s experts contended that the herniated disc and laminectomy were causally related to the accident. The jury found that Deft. was liable, but found that Pltf.’s injuries were not causally connected to the accident. Offer: $300,000; demand: $750,000. Jury deliberation: 5 hours. Carriers: Seneca Insurance; State Farm. Pltf. Experts: Dr. Richard Radna, neurosurgeon, Manhattan; Dr. Michael Errico, orth. surg., Manhasset; Edmond Provder, vocational rehabilitation, Manhattan; Les Seplaki, economist, New Jersey. Deft. Experts: Dr. Isaac Cohen, orth. surg., Rockville Centre; Dr. James Sarno, neurosurgeon, Manhattan; Patricia Jenkins-Spady, vocational rehabilitation, Manhattan; Frederick Goldman, economist, Manhattan.

Heather Hood, inf. by m/n/g Tracey Hood v. Northern Westchester Hospital Center; Anita Grover, M.D.; Robert Arrants, M.D.; Jodi Sutton, M.D.; and Hans Kunz, M.D.

BRAIN DAMAGE

Westchester, NY

Defense verdict for Dr. Kunz (6/0). Defts. Grover and Sutton settled for $1,475,000 during trial. Northern Westchester Hospital settled for $250,000 during trial.

$0.00

XI/7-16 MEDICAL MALPRACTICE CHILDBIRTH INADEQUATE MONITORING CLAIMED BRAIN DAMAGE

Heather Hood, inf. by m/n/g Tracey Hood v. Northern Westchester Hospital Center; Anita Grover, M.D.; Robert Arrants, M.D.; Jodi Sutton, M.D.; and Hans Kunz, M.D. 16803/88 Verdict 7/23/93 Judge Alvin R. Ruskin, Westchester Supreme

VERDICT: Defense verdict for Dr. Kunz (6/0). Defts. Grover and Sutton settled for $1,475,000 during trial. Northern Westchester Hospital settled for $250,000 during trial. Deft. Arrants was discontinued before trial. Jury: 1 male, 5 female.

Pltf. Atty: Cleta McCormick of Fitzgerald & Fitzgerald, Yonkers

Deft. Atty: Robert D. Ryan of Rende, Ryan & Downes, White Plains, for Hospital

William S. Oleson of O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains, for Grover, Arrants, and Sutton

John J. Pilkington of Pilkington & Leggett, White Plains, for Kunz

Facts: The infant Pltf. was born by Caesarean section on 9/5/84 at Deft. Hospital with multiple congenital abnormalities including two club feet, a high arched pallet, low set ears; excessive arches on her fingertips, a broad-bridged nose, and micrognathia (an abnormally small jaw). It was suspected that these deformities were caused by trisomy 18, an extra chromosome, but tests indicated that chromosomal karyotypes were normal.

Pltf. was delivered by Caesarean after a Pitocin drip was discontinued because of brow presentation. When the Pitocin was terminated, continuous monitoring of the fetal heart rate was also stopped . Pltf. contended that fetal heart rate strips indicated a loss of beat- to-beat variability and, therefore, Defts., the attending physicians ( settled for $1,475,000), should have continued the monitoring during the 2 hours before the child was born. She argued that the failure to perform adequate monitoring allowed fetal hypoxia to remain undetected. Pltf. also contended that the Caesarean should have been performed earlier and that Deft. Dr. Kunz (defense verdict) failed to quickly and properly resuscitate the infant.

Pltf. had Apgar scores of 5, 5, and 7, as scored by Dr. Kunz, and scores of 1, 1, and 2, scored by one of the attending nurses.

Defts. contended that Pltf. suffered from the partial agenesis of the corpus callosum (the imperfect development of the nerve fibers connecting the cortical hemispheres), and argued that this, along with her other congenital abnormalities, could be traced back to a malformation during the first 6 weeks of pregnancy.

Injuries: profound mental retardation with motor deficits. Pltf. is unable to walk or speak and must be fed through a gastrostomy tube. None of the experts diagnosed cerebral palsy. Demonstrative evidence: enlargements of medical records and illustrations. Offer: $100,000 by Dr. Kunz; demand: $350,000. Jury deliberation: 2 hours. Carrier: Medical Liability Mutual for Drs. Grover and Sutton; PRI for Dr. Kunz. Pltf. Experts: Dr. Morrison Levbarg, pediatrician, Manhattan; Dr. Sidney Siegel, ob-gyn, Lake Success; Claudia Anderson Beckmann, obstetrical R.N., Fox Point, Wisconsin; Dr. Leon Charash, pediatric neurologist, Hicksville; Edmond Provder, vocational rehabilitation, Manhattan; Seymour Barcun, Ph.D ., economist, Edison, New Jersey. Deft. Experts: Dr. Kwame Yeboa, geneticist, Manhattan; Dr. Hart Peterson, pediatric neurologist, Manhattan; Dr. James Howard, ob-gyn, White Plains; Dr. Michael Weintraub, neurologist, Briarcliff Manor, Manhattan; Dr. Robert Auld, pediatrician, Manhattan.v

Diane (Cestra) Parmentier, indiv. and as m/n/g of Monique Parmentier, inf. f/k/a Monique Cestra, inf. under the age of 14 v. Dr. Richard Hill

BRAIN DAMAGE

Suffolk, NY

Defense verdict for all Defts. (6/0)

$0.00

IX/44-11 MEDICAL MALPRACTICE FAILURE TO TIMELY DIAGNOSE RARE FORM OF MENINGITIS BRAIN DAMAGE DEFENSE VERDICT

Diane (Cestra) Parmentier, indiv. and as m/n/g of Monique Parmentier, inf. f/k/a Monique Cestra, inf. under the age of 14 v. Dr. Richard Hill, Dr. R. Joel Perkerson, Dr. Saul Blecher, Dr. Joseph LoVece, and Southside Hospital 83/010566 2-month trial Verdict 3/13/92 Judge Patrick Henry, Suffolk Supreme

VERDICT: Defense verdict for all Defts. (6/0). Jury: 2 male, 4 female. Notice of Appeal by Pltf. is likely.

Pltf. Atty: William A. Wismann and David C. Weisberg of Davidow, Davidow & Wismann, Patchogue

Deft. Atty: Robert W. DeVerna of Wortman, Fumuso, Kelly, DeVerna & Snyder, Hauppauge, for Hill and LoVece

Richard C. Mooney of Rivkin, Radler, Bayh, Hart & Kremer, Uniondale, for Perkerson

William G. Spratt of Bower & Gardner, Manhattan, for Blecher and Southside

Facts: On 11/8/80, the 10-week-old Pltf. and her two older sisters, ages 2 and 4, were brought to Deft. Dr. Hill’s office suffering from intestinal symptoms. Pltf. was feverish, lethargic, and irritable, and had vomited the night before. She was admitted to Deft. Southside Hospital for observation. Defts. Perkerson and Blecher, residents in the hospital, performed a spinal tap 15 hours later after consulting with the attending physician. The tap was positive for meningitis. Pltf. was treated with Chloramphenicol and Ampicillin with a presumptive diagnosis of H flu meningitis. Further tests revealed the existence of Salmonella B meningitis, a rare type of the disease. Pltf. became very lethargic and began experiencing seizures. She was intubated and transferred to North Shore University Hospital where she remained from 11/9/80 through 1/21/81. During that time, she experienced several relapses.

Injuries: brain damage resulting in mental retardation. The child also has a congenital malocclusion, and Pltf.’s treating orthodontist testified that it will be difficult to treat the overbite because the child will not wear braces or a dental retainer. Pltf., age 12 at the time of trial, functions on a first grade level. She is enrolled in an alternative learning class. Pltf. contended that the child will be unable to work or care for herself. Pltf. also contended that the child will require institutionalization at a special school from age 21 to 31 and then in an intermediate care facility, followed by possible group home living. Defts. claimed that Pltf. will be able to perform in a group home with vocational training for a sheltered workshop or supportive employment.

Pltf. contended that if Defts. had performed the lumbar puncture sooner, the meningitis would have been diagnosed and the infant cured. Pltf. also contended that Deft.’s nursing staff negligently failed to properly monitor the child and report changes in her clinical condition to the residents and attending doctor.

Defts. contended that they used appropriate judgment in making their presumptive diagnosis of a viral infection based on the symptoms and clinical presentation of Pltf.’s sisters. It was later noted that Pltf.’s sisters both had positive stool cultures for Salmonella B meningitis. Defts. also contended that lumbar punctures should not be performed indiscriminately. Defts. also contended that in view of the child’s lengthy clinical course and hospital stay, treatment 15 hours earlier would not have made a difference in her final condition. They also contended that Chloramphenicol and Ampicillin, the antibiotics available at that time, were not effective against Salmonella B meningitis. Offer: structured settlement with a present cost of $700,000; demand: $4,000,000; amount asked of jury: $10,000,000.

Pltf. Experts: Dr. Hugh Evans, neonatologist and infectious diseases, New Jersey School of Medicine, Newark, New Jersey; Dr. Leonard Graziani, pediatric neurologist, Jefferson Medical College, Philadelphia, Pennsylvania; Dr. Steven Bisbing, forensic psychologist, Tacoma Park, Maryland; Dr. Stanley Gould, pediatrician, Woods School, Langhorne, Pennsylvania; Katherine Piggott, nursing expert, Seattle, Washington; Dr. Edward O’Shea, treating orthodontist, Port Jefferson; Dr. Frederic Levine, treating psychologist, Port Jefferson; Dr. Edmond Provder, vocational expert, Manhattan; Dr. Alfred Spieler, pediatrician, Patchogue; Dr. Helen Emmerich, school psychologist, Three Village School System; Dr. Jeffrey Pomerantz, school psychologist, Three Village School System; Dr. Albert Levenson, economist, Woodmere. Deft. Experts: Dr. Abe Chutorian, pediatric neurologist, Manhattan; Dr. Joyce Spinello, vocational expert, Manhattan; Dr. Mark Kaplan, Pltf.’s treating physician, infectious diseases (by subpoena), Manhasset.

David and Monica Revill v. Boston Road Development Corp. and Bronx Pro Real Estate

RAISED FLOOR BOARDS FOLLOWING APARTMENT BUILDING FLOOD – PROPERTY DAMAGE

Warehouse worker

Bronx, NY

Defense verdict on liability (5/1).

$0.00

XVII/35-12 FALLDOWN RAISED FLOOR BOARDS FOLLOWING APARTMENT BUILDING FLOOD PROPERTY DAMAGE DEFENSE VERDICT ON LIABILITY

David and Monica Revill v. Boston Road Development Corp. and Bronx Pro Real Estate 18458/95 9-day trial Verdict 1/14/00 Bronx Supreme

Judge: Lucindo Suarez

Verdict: Defense verdict on liability (5/1). Jury: 2 male, 4 female.

Pltf. Atty: Steven Wildstein, Great Neck

Deft. Atty: Jack G. Russo of Meyer, Suozzi, English & Klein, Manhattan

Facts: Pltf., a 37-year-old warehouse worker, claimed that in April 1995, a pipe burst in the heat riser of Defts. apartment building, causing his apartment to flood. Pltf. s apartment was located on the main floor, and his entire apartment was flooded with several inches of water. Deft. produced a videotape of the flood. He claimed $24,000 for property damage. The water was ultimately drained, and Pltf. s floor boards buckled. Several days after the accident, Pltf. tripped and fell over one of the floor boards in his bedroom. Pltf. claimed that Deft. was negligent for failing to repair the floor after the flood. Pltf. s expert testified that the floor constituted a dangerous condition. Defts. claimed that Pltf. was offered the opportunity to move out, but he did not move. They also claimed that Pltf. knew the floor was defective in the bedroom, but that he chose to go into the bedroom anyway.

Injuries: torn anterior cruciate ligament requiring two surgeries with hospitalizations. Pltf. claimed that he requires the use of a cane. Pltf. s vocational rehabilitation expert testified that Pltf. can only work at sedentary jobs that have less earning potential than his former job. Demonstrative evidence: videotape; wage projection charts. Jury deliberation: 45 minutes. Carrier: United International.

Pltf. Experts: Daniel Burdett, engineer, Manhattan; Dr. Frank Carr, orth. surg., Brooklyn; Dr. Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Expert: Dr. Kenneth Seslowe, orth. surg., Elmhurst.

Lourdes Ramos v. Wyckoff Heights Hospital; Joseph Calcagno, M.D.

CHILDBIRTH – ABRUPTIO PLACENTA

Kings, NY

Defense verdict for Hospital and Cho (6/0). Palmeri settled during trial for $100,000 (policy limit). Calcagno was dismissed. Jury: 3 male, 3 female.

$0.00

IX/35-6 MEDICAL MALPRACTICE 1971 CHILDBIRTH ABRUPTIO PLACENTA DELAY IN PERFORMANCE OF CAESAREAN SECTION DEFENSE VERDICT

Lourdes Ramos v. Wyckoff Heights Hospital; Joseph Calcagno, M.D.; Hong Rae Cho, M.D.; and Thomas Palmeri, M.D. 15491/84 4-week trial Verdict 2/4/92 Judge Nicholas A. Clemente, Kings Supreme

VERDICT: Defense verdict for Hospital and Cho (6/0). Palmeri settled during trial for $100,000 (policy limit). Calcagno was dismissed. Jury: 3 male, 3 female.

Pltf. Atty: John E. Fitzgerald of Fitzgerald & Fitzgerald, Yonkers

Deft. Atty: Dennis A. Breitner of Kanterman, Taub & Breitner, Manhattan, for Hospital and Cho

Sean F.X. Dugan of Martin, Clearwater & Bell, Manhattan, for Calcagno

Anthony M. Soscia, Jr. of Schiavetti, DeVito, Begos & Nicholson, Manhattan, for Palmeri

Facts: On 6/12/71, Pltf.’s mother was admitted to the Deft. Hospital complaining of pain and irregular contractions. She was in her 34th week of pregnancy at the time. There was a dispute at trial as to whether she was suffering vaginal bleeding at the time of her admission. Physicians at the hospital administered Seconal and established an IV. The next morning, on 6/13/71, she began bleeding profusely. Abruptio placenta was diagnosed, and a Caesarean section was performed at 3:40 PM.

Pltf.’s Apgar scores were 5 at 1 minute and 8 at 5 minutes. The anesthesiologist noted scores of 7 and 9. Pltf. remained in the hospital for 2? weeks after her birth. She was diagnosed with cerebral palsy 8 months later. Pltf. claimed that she suffers from mild to borderline mental retardation. She also suffers from spastic diplegia with some involvement of the upper arms. Pltf. uses crutches to ambulate.

Pltf. contended that Defts. were negligent for waiting 4 hours before performing a Caesarean. She contended that on the morning of June 13, a resident and a nurse were unable to hear the fetal heartbeat, and she claimed that this indicated fetal distress. She also claimed that she suffered hypoxia and periventricular leucomalacia, a bleed in the germinal matrix of the brain which caused destruction of the white matter.

Defts. claimed that Pltf.’s mother did not start bleeding seriously until approximately 11:30 AM on 6/13, and they contended that the standard of care in 1971 allowed physicians to wait 4-6 hours before performing a Caesarean in the face of abruptio placenta, as long as the mother and child were not in danger. Defts. contended that the inability of the resident and nurse to hear the fetal heartbeat was caused by movement of the fetus, and not because of fetal distress, and that the Caesarean was performed due to maternal indications only. Defts. also contended that Pltf.’s Apgar scores were consistent with a child born at 34 weeks’ gestation.

Defts. used an MRI taken in 1991 to demonstrate that based on the location of the injury and the brain’s reaction to it, the cerebral palsy was caused by hypotension or another intra-uterine insult at approximately 28 weeks. Deft. contended that the hypotension was a “silent event” caused by problems with the umbilical cord, a drop in the blood pressure of the mother or child, or the flu, and that it occurred at a time when the fetal autoregulatory system was not able to compensate for the lowered blood pressure. Jury deliberation: 2 hours. Pltf. Experts: Dr. Leon Charash, pediatric neurologist, Hicksville; Dr. Sidney Siegel, ob-gyn, Lake Success; Dr. Stanley Sprecher, radiologist, Brooklyn; Dr. Carol Ann Friedman, neuropsychologist; Edmond Provder, vocational rehabilitation; Dr. Seymour Barcun, economist (testified that if Pltf. was institutionalized, the cost of her future care would be $74 million). Deft. Experts: Dr. Robert D. Zimmerman, neuroradiologist, Manhattan; Dr. Charles Debrovner, ob-gyn, Manhattan; Dr. Ruth Nass, pediatric neurologist, Manhattan; Dr. William Shapiro, ob-gyn, New Rochelle.

Annie Ferguson v. City of New York

KNEE INJURIES

Unemployed

Bronx, NY

$2,134,890 reduced to $1,067,445 for 50% comparative negligence of Pltf. (6/0).

$1,067,445.00

X/8-5 FALLDOWN CITY LIABLE FOR ICY SIDEWALK $2 MILLION GROSS AWARD FOR PAIN AND SUFFERING KNEE INJURIES

Annie Ferguson v. City of New York 7745/89 2-week trial Verdict 5/20/92 Judge Hansel L. McGee, Bronx Supreme

VERDICT: $2,134,890 reduced to $1,067,445 for 50% comparative negligence of Pltf. (6/0). Breakdown: $2,000,000 for pain and suffering; $ 134,890 for medical expenses. Post-trial motions were denied. Jury: 1 male, 5 female.

Pltf. Atty: William A. Gallina of Klar, Piergrossi & Gallina, Bronx

Deft. Atty: Eugene P. Grimes, Asst. Corp. Counsel

Facts: Pltf., age 46 and unemployed at the time of the accident on 2/8/85, contended that she slipped and fell on an accumulation of ice on the sidewalk in front of 879 E. 165th St. in the Bronx. The ice was the result of two snowfalls during the week of 2/1 – 2/7/85. Pltf. testified that the snow had not been cleared at all in that time and had been walked on to the point where it became icy and uneven. Deft. contended that it had no duty to Pltf. as a matter of law. Deft. also argued that the accident did not happen where Pltf. claimed it did, citing several different addresses given to the police and ambulance operators. Deft. theorized that Pltf. slipped and fell in her apartment. The jury found 50% comparative negligence against Pltf. for her failure to proceed with adequate caution while traversing the ice. Injuries: tear of the anterior and posterior cruciate ligament; osteochondral fracture of the medial femoral condyle; torn lateral meniscus; iliotibial band tear; torn popliteal tendon; hematoma of the peroneal nerve; aggravation of preexisting carpel tunnel syndrome to both hands requiring surgical release. Pltf. underwent reconstructive surgery to the knee and arthrodesis with the application of an external fixator and a brace. Pltf. has undergone 2 years of physical therapy. She currently has a fused left knee and a partial left foot drop. Demonstrative evidence: photograph of street; enlargements of weather reports; illustrations of the operative procedures; X-rays; models of the knee. Offer: $150,000; demand: $750,000; amount asked of jury: $5,000,000. Jury deliberation: 2? hours. Pltf. Experts: Dr. I. Martin Levy, orth. surg., Bronx; Edmond Provder, rehabilitation expert, Manhattan; John R. Martin, meteorologist. There was no expert testimony for Deft.

Steven and Barbara Manning v. British American Development and Kenneally Construction Corp.

FOOT INJURY

Construction Carpenter

Schenectady, NY

$414,120. Breakdown: $60,000 for past pain and suffering ; $180,000 for future pain and suffering; $1,620 for past medical expenses ; $7,500 for future medical expenses; $20,000 for past lost earnings?

$414,120.00

VII/24-32 CONSTRUCTION ACCIDENT – SCAFFOLD COLLAPSE – FOOT INJURY

Steven and Barbara Manning v. British American Development and Kenneally Construction Corp. 84-4269 Verdict 8/10/89 Judge Robert F. Doran, Schenectady Supreme

VERDICT: $414,120. Breakdown: $60,000 for past pain and suffering ; $180,000 for future pain and suffering; $1,620 for past medical expenses ; $7,500 for future medical expenses; $20,000 for past lost earnings; $85, 000 for future lost earnings; $60,000 for Barbara M. for loss of services.

Pltf. Atty: Michael E. Mine of Powers & Santola, Albany

Deft. Atty: Sol Aronson for Francis E. Lehner, Albany, for British American

John T. Maloney of Carter, Conboy, Bardwell, Case & Blackmore, Albany, for Kenneally

Robert M. Auld for Stephen R. Spring, Albany, for Raymond Rudat

Facts: Pltf., a 32-year-old construction carpenter, was standing on a ladder jack scaffold when it collapsed, causing him to fall to the ground. The jury found that Third-party Deft. was negligent in the erection of the scaffold but that its negligence was not the proximate cause of the accident. Pltf.’s motion for summary judgment was granted. On Deft.’s post-trial motions, the trial judge directed judgment over against Pltf.’s employer notwithstanding the jury’s determination on the grounds that there was no other rational explanation for the scaffold’s collapse, according to the proof. Injuries: fracture of the left os calcis. Pltf.’s treating orthopedic surgeon testified that Pltf. was left with a loss of inversion of the left foot and traumatic arthritis in the subtalar joint. He also testified that Pltf. was totally disabled from any work for 1 year after the accident and that he was permanently disabled from performing work as a construction carpenter. Against his doctor’s advice, Pltf. went back to work as a construction carpenter less than 6 months after the accident and was working full time within 1 year. He testified that he tolerated the pain and went back to work because he could not support his family. At the time of the accident, he was earning $ 15,000 per year. At the time of trial, he was earning $30,000 per year. Pltf.’s vocational rehabilitation expert testified that a disabled worker earns 10% less than a non-disabled worker. He contended that Pltf. could have earned $33,000 per year if he had not been injured and that his lost income, therefore, is $3,000 per year. Offer: $150,000; demand: $500,000. Pltf. Experts: Dr. James Slavin, treating orth. surg., Troy; Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Richard Pikul, engineer, Schenectady; Dr. Paul M. Clark, orth. surg., Albany.

Essam Eliraky v. Arthur Staloff and Alpine Refrigeration

NECK FUSION, BACK INJURIES

Delivery-car driver

Middlesex County, NJ

The parties settled for $1.1 million, prior to jury selection.

$1,100,000

On Nov. 12, 2012, plaintiff Essam Eliraky, a livery-car driver in his late 40s, was working when he was rear-ended in slowing traffic by a pickup truck on Easton Avenue, in New Brunswick. He claimed an aggravation of neck and back injuries.

Eliraky sued the driver, Arthur Staloff, and his employer, Alpine Refrigeration, alleging that Staloff was negligent in the operation of a vehicle.

Staloff said that the brake had failed. The responding officer discovered brake fluid underneath Staloff’s truck.

Eliraky’s automotive expert inspected Staloff’s truck and reviewed photographs of the brake lines (the brake lines were changed post-accident). He said, based on the investigation, Staloff’s testimony, and the observation of brake fluid, the truck was not properly maintained, and the brake lines were not inspected, cleaned, and kept up to date; as a result, the brakes had corroded and failed.

Staloff’s automotive expert, who analyzed the same evidence as Eliraky’s expert, determined that the brake failure was a spontaneous, unforeseeable occurrence, and not the result of any alleged improper maintenance.

Timothy Stahl, inf. by m/n/g Mary Ann Stahl v. Youchan Rhee, M.D.; Taik Yong Ban, M.D.; and Sterling Drug

INFANT SUFFERS MENTAL RETARDATION AND SEIZURE DISORDER

Suffolk, NY

Defense verdict (6/0)

$0.00

XVII/11-18 PRODUCT LIABILITY PHISOHEX INFANT SUFFERS MENTAL RETARDATION AND SEIZURE DISORDER DEFENSE VERDICT

Timothy Stahl, inf. by m/n/g Mary Ann Stahl v. Youchan Rhee, M.D.; Taik Yong Ban, M.D.; and Sterling Drug 20633/85 3-month trial Verdict 6/3/99 Suffolk Supreme

Judge: Peter Fox Cohalan

Verdict: Defense verdict (6/0). Jury: 4 male, 2 female. A Notice of Appeal by Pltf. is likely.

Pltf. Atty: Roman M. Silberfeld of Robins, Kaplan, Miller & Ciresi, L.L.P., Los Angeles, California

Thomas J. Conlin of Robins, Kaplan, Miller & Ciresi, L.L. P., Minneapolis, Minnesota

Barry S. Huston of Huston & Schuller, P.C., Manhattan

Deft. Atty: Peter C. Kopff of Kopff, Nardelli & Dopf, L.L.P., Manhattan, for Rhee and Ban

George M. Newcombe and Jonathan K. Youngwood of Simpson Thacher & Bartlett, Manhattan, and James Ruger, Manhattan, for Sterling Drug (home counsel)

Facts: On 2/14/77, shortly after the infant Pltf. s birth, Deft. Dr. Rhee, the infant s treating pediatrician, prescribed pHisoHex antibacterial cleanser, manufactured by Deft. Sterling Drug, with Neosporin topical triple antibiotic as treatment for Pltf. s neonatal impetigo. Pltf. claimed that Hexachlorophene, an ingredient in pHisoHex, is dangerous to newborns with compromised skin, such as neonatal impetigo. Pltf. also contended that Deft. physicians improperly renewed the prescription on 2/23/77, without seeing the infant, permitting excessive application of the product, and failed to consider that pHisoHex could cause brain damage. Pltf. also claimed that pHisoHex is contraindicated for treatment of impetigo, and that in 1972, the FDA had found that it should only be used as a bacteriostatic skin cleanser or as treatment for staphylococcus infections in a hospital nursery. Pltf. contended that Deft. Sterling Drug sold a defective product, that it was negligent in the manufacture and marketing of pHisoHex, and that it negligently failed to adequately warn physicians of the danger of the product. Pltf. also claimed that the instructions in the Physicians Desk Reference ( PDR) were misleading to physicians and did not disclose the risks of pHisoHex or contain administration instructions.

Pltf. claimed that the Deft. physicians did not heed her complaints about the child, who suffered from episodes of crying, irritability, and stiffening on the changing table. These complaints were not in the infant s medical charts.

Pltf. contended that there was damage to the infant s white and gray matter and that the myelination process was disturbed. She claimed that pHisoHex will cause damage to the gray matter if the white matter is compromised. Pltf. sustained a permanent seizure disorder and is severely mentally retarded.

Defts. contended that pHisoHex with Neosporin was the standard of care in 1977 for a mild case of neonatal impetigo. They denied that the infant experienced any neurological manifestations of toxicity and that his developmental neurological condition manifested at 5 months of age. Defts. also contended that the onset of his seizures on 6/1/77, 4 months after the use of the product, ruled out pHisoHex as the cause of his seizure disorder.

Deft. Sterling Drug contended that pHisoHex was safe and effective when used as instructed. Deft. also claimed that the 1976 insert to the PDR fully disclosed the risks of Hexachlorophene intoxication. Deft. contended that Hexachlorophene can cause white matter problems, which are reversible and which, it claimed, the infant Pltf. did not have. Deft. also contended that Pltf. s MRI is normal, indicating that the cause of his mental retardation and seizure disorder was due to an event that occurred before he was born . Deft. contended that in over 50 years of use, pHisoHex has never caused mental retardation and permanent seizure disorder, which are gray matter conditions. Defts. also claimed that Pltf. s mother, who read the 1977 Physicians Desk Reference in 1983, thereafter gave the history that the child had all the symptoms of toxicity, including gastrointestinal injuries. Defts. denied that Pltf. reported these symptoms to them. Defts. also contended that gastrointestinal injuries could occur only with oral consumption. Defts. argued that the medication was given to Pltf. topically, not orally. Pltf. claimed that gastrointestinal problems can result from topical application as well as oral administration. Demonstrative evidence: bottle of pHisoHex; drawing of impetigo, diaper rash, and neonatal bran and myelination at 2 weeks of age; charts of brain cells; MRIs; enlargement of medical and hospital records; medical illustrations; articles; antimicrobial panel study by FDA. Specials: Medicaid lien of approximately $1,700,000; $2,300,000 in past medical expenses were stipulated. Amount asked of jury: $28,000,000. Jury deliberation: 2? hours. Carrier: MMIA and Medical Liability Mutual for Rhee and Ban.

Note: This case was settled in March 1994 before Honorable Lester E. Gerard, after Judge Gerard discharged Mrs. Stahl as the child s natural guardian and appointed Harvey Besunder, the president of the Suffolk County Bar Association, as guardian ad litem for the infant. Mr. Besunder accepted $575,000 in settlement from Sterling Drugs. The Appellate Division, Second Dept. reinstated Mrs. Stahl as the infant s natural guardian and vacated the settlement, and this trial ensued. The court found that [a] guardian [cannot be removed] solely to ensure approval of a settlement since the power of the court to approve a settlement does not confer a concomitant power to dictate the terms of the settlement. It cannot be said that the mother s judgment in this matter was unreasonable Rather the mother s refusal to accept the settlement offered was based upon an informed judgment that there was such a pronounced difference between the amount offered and her child s yearly and lifetime expenses, that the settlement would make no discernible difference in the child s life. Stahl v. Rhee, 220 A.D.2d 39, 643 N.Y.S.2d 148 (Second Dept., 5/13/96).

Pltf. Experts: Dr. Jean Lockhart, pediatrician, San Rafael, California; Dr. William P. Blackmore, research pharmacist (formerly with Sterling Drug), Delmar; William Guess, Ph.D., toxicologist, Oxford Mississippi; Dr. Sidney Baker, pediatrician, Hamden, Connecticut; Dr. Bruce Roseman, pediatric neurologist, White Plains; Richard Ruth, Ph.D., economist, New Jersey; Edmond Provder, life care planner, Manhattan.

Deft. Experts: Dr. Warren Rosenfeld, pediatrician, Mineola; Dr. Arthur Rose, pediatric neurologist, Brooklyn (both for Rhee and Ban); Dr. Alan Leviton, epidemiologist and pediatric neurologist, Boston, Massachusetts; Dr. Ira Bergman, pediatric neurologist, Pittsburgh, Pennsylvania.

Nadine Matthews v. Fenimore Plaza and Abe Betesh

NERVE INJURIES TO THE HAND AND WRIST

Kings, NY

Liability: Pltf. 35% negligent; Deft. 65% (6/0). The case subsequently settled for $475,000.

$475,000

XVI/16-8 RESTAURANT WINDOW PRE-EXISTING CRACKS IN THE GLASS NERVE INJURIES TO THE HAND AND WRIST

Nadine Matthews v. Fenimore Plaza and Abe Betesh 28350/95 3-day trial Verdict 4/30/98 Kings Supreme

Judge: Martin Schneier

Verdict: Liability: Pltf. 35% negligent; Deft. 65% (6/0). The case subsequently settled for $475,000. Jury: 2 male, 4 female.

Pltf. Atty: Harvey A. Herbert, Brooklyn, and Glenn Faegenburg of Edelstein & Faegenburg, Brooklyn

Deft. Atty: Derek E. Barrett of Gladstein & Isaac, Manhattan

Facts: Pltf., age 15 at the time, claimed that on 7/28/95 at about 9 PM, she leaned her hand against a restaurant window in Deft.’s building at 621 Flatbush Ave., Brooklyn when the glass broke. Pltf. contended that she was on her bicycle when a friend jumped onto it, causing her to lose her balance and lean her hand on the glass for support. She claimed that the window had a pre-existing crack and that it was not held in place properly. Witnesses, who had seen the window before the accident, testified that there were cracks in the glass. Pltf.’s engineer testified that Deft. violated the Administrative Building Code.

Deft. denied that there was a pre-existing crack, and argued that the glass broke because Pltf. pressed too hard on it. Deft.’s expert claimed that Pltf. used sufficient pressure in her fall to break the glass. The jury found that Pltf. was comparatively negligent for leaning on the glass.

Injuries: (not before the jury settled for $475,000) lacerations of nerves and tendons of the right (dominant) wrist. Pltf. underwent repair of the superficial and deep flexor tendons to the ulna and four fingers, including the flexor pollicis longus, flexor carpi radialis and ulnaris, and median and ulnar nerves. Her ulnar artery was ligated. Pltf. also underwent physical therapy, and claimed that she has significant loss of range of motion, weakness, and diminished sensation in the wrist. She contended that she has trouble writing. Pltf.’s vocational rehabilitation expert would have testified that she has a diminished earning capacity. Demonstrative evidence: medical illustrations; enlargement of hospital records. Offer: $65,000; demand prior to liability verdict: $750,000. Jury deliberation: 2 hours. Carrier: Axa Global Risks.

Pltf. Experts: Richard Berkenfeld, engineer, Great Neck. Pltf. would have called Dr. Michael Marrone, orth. surg., Yonkers; Dr. Joel Grad, orth. surg., Manhattan; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Stanley Fein, P.E., engineer, Plainview. Deft. would have called Dr. Martin A. Posner, hand surgeon, Manhattan; Dr. Jay Rosenblum, neurologist, Manhattan; Dr. Carl Schiller, plastic surgeon, Brooklyn; James Pascuiti, vocational rehabilitation, Springfield, New Jersey.

Felipe Feliz v. Morris Avenue Associates

SEVERE BURNS TO THE BODY, THROAT, AND LUNGS

Self-employed automobile mechanic

New York, NY

1,504,000, reduced to $1,128,000 for 25% comparative negligence of Pltf.

$1,128,000.00

XI/7-2 FIRE TENANT INJURY LOCKED WINDOW GATE AND LACK OF SMOKE DETECTORS SEVERE BURNS TO THE BODY, THROAT, AND LUNGS

Felipe Feliz v. Morris Avenue Associates, a limited partnership 22980/89 14-day trial Verdict 5/19/93 Judge Diane A. Lebedeff, New York Supreme

VERDICT: $1,504,000, reduced to $1,128,000 for 25% comparative negligence of Pltf. Breakdown: $400,000 for past pain and suffering; $500, 000 for future pain and suffering; $39,000 for past lost earnings; $312, 000 for future lost earnings; $103,000 for past medical expenses; $150,000 for future medical expenses. A post-trial motion is pending. This case will be reproduced in its entirety, along with the post-trial decision, when it is rendered. Jury: 4 male, 2 female.

Pltf. Atty: Alan H. Figman of Fitzgerald & Fitzgerald, Yonkers

Deft. Atty: Steven Z. Rosenzweig of Diamond, Rutman, Costello & Silberglitt, Manhattan

Facts: The incident occurred on 2/5/89 at 1:40 AM at 1711 Morris Ave. in the Bronx. Pltf., a 30-year-old self-employed automobile mechanic, testified that he placed a pot of food on a low flame on his stove and went into his bedroom while the food cooked. He claimed that the next thing he knew, the apartment had filled with smoke and he ran into the kitchen where he saw that the top of the stove was enveloped in flames. Pltf. testified that after five or six attempts to put out the fire with a 5-gallon bucket of water he was overcome by smoke. Pltf. claimed that he had also tried to call for help from the living room window, which was the only window in his apartment that could be opened.

Pltf. had sublet the apartment from the tenant of record without the landlord’s approval. Evidence indicated that in July 1987, Deft. was cited by the New York City Housing Preservation & Development Code Enforcement for failing to provide a smoke detector in the unit and for allowing an illegal, locked window gate in the kitchen over the fire escape window. These violations were never certified as corrected.

Deft. testified that smoke detectors were installed in the apartment when the tenant moved in and were reinstalled twice after it was cited for violations. The tenant of record testified that she had two smoke detectors and that the window gate in the kitchen was not kept locked. Two firemen testified for Pltf. that there were no smoke detectors in the apartment and that the gate was locked at the time of the fire.

Deft. contended that Pltf. was intoxicated at the time, and produced evidence that his blood alcohol level was .78 when he arrived at the hospital at 2:57 AM. Pltf.’s physician contended that this was an insignificant amount. He testified that immediately after a person is severely burned, his body becomes hypometabolic and little metabolism of alcohol would occur, resulting in a higher than normal reading.

Injuries: second- and third-degree burns over 46% of the body; burns to the throat cartilage requiring placement of a permanent tracheotomy tube; chemical burns of the lungs resulting in reduced pulmonary capacity; scars to the stomach and back. Pltf. claimed that he is unable to climb one flight of stairs without becoming short of breath. He required six skin graft procedures. His experts testified that Pltf. will require two more in the future. He will also require future scar release surgery. Pltf. claimed that he can no longer work as an automobile mechanic and, because he cannot speak English and has minimal education, he is unemployable in any other field. Demonstrative evidence: photos; FDNY reports; medical records; economic charts; tenant file; HPD violations. Pltf. Experts: John O’Rourke, fire protection, former chief, N.Y.C. Fire Dept, Seaford; Dr. Cleon Goodwin, burns and trauma specialist, director of New York Hospital Burn Unit; Seymour Barcun, Ph.D., economist, Edison, New Jersey; Dr. Edmond Provder, vocational rehabilitation, Manhattan. Deft. Experts: Dr. Lawrence Kaplan, neuropsychiatrist, Manhattan; Morris Zedeck, Ph.D., pharmacologist and toxicologist, Manhattan.

Nicholas Calvo v. United States Lines, Inc.

HERNIATED DISC

Securing and unsecuring cargo containers

NY

$1,483,000, reduced to $1,186,400 for 20% comparative negligence of Pltf.

$1,186,400.00

VII/29-23 MARITIME ACCIDENT – LONGSHOREMAN – FALL ON GREASE – HERNIATED DISC

Nicholas Calvo v. United States Lines, Inc. 83 Civ 1061 Verdict 12/8/88 Judge Edward R. Korman, Eastern District

VERDICT: $1,483,000, reduced to $1,186,400 for 20% comparative negligence of Pltf. The gross award was reduced as excessive by the Court to $1,233,000 for a net verdict of $986,400. Subsequently settled for approximately $850,000.

Pltf. Atty: Jethro M. Eisenstein of Profeta & Eisenstein, Manhattan

Deft. Atty: Philip S. LaPenta of Gulmi, LaPenta, Campbell, Burns & Mahoney, Manhattan

Facts: Pltf., in his late 20s at the time of the accident, was working as a lasher aboard Deft.’s ship, the American Legend. His work entailed securing and unsecuring cargo containers. While on top of one of the ship’s hatches, he stepped in a large greasy area and fell 15 feet to the deck. He was taken by ambulance to the hospital. Testimony indicated that a co-worker had brought the greasy condition to the attention of the night mate, and that nothing was done about it. Deft. argued that Pltf. was comparatively negligent because the condition was open and obvious. Deft. also argued that Pltf. was an experienced longshoreman and should have noticed the condition. Injuries: herniated lumbar disc requiring a laminectomy and a fusion. The laminectomy was partially successful, and Pltf. still has nerve root impingement. Pltf. is functionally illiterate and reads only at a second grade level. He argued that his limited abilities preclude him from finding non-manual labor. Pltf. Experts: Edmond Provder, occupational rehabilitation expert; David Zaumier, economist, Lexington Economic Consultants. Deft. Expert: Raleigh Ralls, economist, Little Rock, Arkansas.

Juana Rodriguez v. Rego II Borrower LLC East Bay Mechnical Corp and RPC General Contractors, Inc.

HERNIATED DISC AND ARM INJURIES

Cook

Queens, NY

The jury found that East Bay Mechanical was liable for the accident. Prior to the scheduled start of the trial’s damages phase, the parties negotiated a settlement. East Bay Mechanical’s insurer agreed to pay $1,195,500.

$1,195,500

On June 26, 2013, plaintiff Juana Rodriguez, 44, a cook, worked at a newly opened restaurant that was located at 6135 Junction Blvd., in the Rego Park section of Queens. While Rodriguez was exiting the restaurant’s walk-in refrigerator, she was struck by an A-frame ladder that had fallen from an upright position. Rodriguez claimed that she suffered injuries of an arm, her back, her head and a shoulder.

Rodriguez sued the premises’ owner, Rego II Borrower LLC; the general contractor that oversaw construction of the restaurant, RPC General Contractors Inc.; and a contractor that had serviced the restaurant’s air-conditioning system, East Bay Mechanical Corp. Rodriguez alleged that the defendants negligently created a dangerous condition that caused the accident.

Rego II Borrower and RPC General Contractors were dismissed. The matter proceeded to a trial against East Bay Mechanical.

Rodriguez claimed that the ladder had been folded and was leaning on a wall and concealed by the refrigerator’s door. Rodriguez’s counsel suggested that the ladder had been situated by an employee of East Bay Mechanical. He presented three of the restaurant’s employees, each of whom claimed that East Bay Mechanical employees had been working at the restaurant two days prior to the accident, that the workers had been using ladders similar to the one that struck Rodriguez, and that they had witnessed a ladder being used in the general vicinity of the area in which the accident occurred.

Defense counsel claimed that East Bay Mechanical did not own or use the ladder involved in the accident. East Bay Mechanical’s owner claimed that his company’s records suggest that the company’s workers had not visited the restaurant during the 22 weeks that preceded the accident, though he also claimed that any work performed in June 2013 would have been warranty work and therefore unbilled and undocumented. During cross-examination, he acknowledged that the company’s record-keeping was erratic and could have been inaccurate with regard to its last activity at the restaurant.

Carl Lewis, Jr. v. Butler Aviation-LaGuardia, Inc., n/k/a Signature Flight LaGuardia

KNEE INJURY REQUIRING KNEE REPLACEMENT

Engineer

NY

This action, which arose out of a forcible explosion of a wheel/tire assemblage that injured a 31-year-old automotive mechanic, settled before trial for $1,200,000, which included the payment of a $200,000 Workers Compensation lien.

$1,200,000

XV/36-47 WORK ACCIDENT TIRE EXPLOSION KNEE INJURY REQUIRING KNEE REPLACEMENT

SETTLEMENT: Carl Lewis, Jr. v. Butler Aviation-LaGuardia, Inc., n/k/a Signature Flight LaGuardia 95 Civ 4317 Date of Settlement 12/12/97 Eastern District

Pltf. Atty: Phillips P. O Shaughnessy and Robin Frazier Kandel of Phillips P. O Shaughnessy, Baltimore, Maryland

This action, which arose out of a forcible explosion of a wheel/tire assemblage that injured a 31-year-old automotive mechanic, settled before trial for $1,200,000, which included the payment of a $200,000 Workers Compensation lien. Pltf. claimed that he was returning a tire to a Rampmaster Fuel Truck after repairing a flat on 10/25/92 at Butler Aviation Baltimore Washington International, Inc. (Butler BWI) when the explosion occurred. Evidence indicated that this event was the first time that the tire had been serviced at Butler BWI and that the component parts of the wheel were made by different manufacturers. Pltf. contended that the component parts on the wheel that exploded did not conform with OSHA and wheel manufacturer recommendations. Butler LaGuardia purchased the Rampmaster new and used it for about 8 years before it transferred it to a sister company, Butler O Hare. Butler O Hare denied ever working on the vehicle before it was transferred to Butler BWI. Pltf. claimed that Butler LaGuardia negligently mismatched the wheel components before it transferred the Rampmaster to Butler O Hare and that Butler O Hare negligently failed to inspect its wheels before transferring it to Butler BWI.

Injuries: open fracture of the medial femoral condyle requiring a knee replacement and hospitalization. Pltf. s experts claimed that Pltf. may require future knee surgery and replacements. Pltf. contended that he can no longer be employed as a mechanic. Note: In order to resolve issues of personal jurisdiction, Pltf. filed this case in Eastern District of New York, the home area of Deft. Butler LaGuardia. The case settled during the pendency of motion practice intended to resolve whether the law of New York or Maryland governed the case.

Pltf. Experts: Pltf. would have called O.J. Hahn, Ph.D., engineer, Lexington, Kentucky; Dr. Howard Balensweig, orth. surg., Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Conrad Berenson, Ph.D., economist, Woodbury.

Deft. Expert: Deft. would have called Dennis Waylen, engineer, Akron, Ohio.

Sylvia Davis v. CPS 1 Realty GP LLC and Tishman Construction Corp.

KNEE, NECK AND WRIST INJURIES

Apprentice Mason Tender

New York, New York

The jury found that Davis’ damages totaled $1.2 million. After the addition of the stipulated medical expenses, Davis’ recovery totaled $1,256,844.99.

$1,240,000

On Feb. 6, 2006, plaintiff Sylvia Davis, 41, a union-affiliated apprentice mason tender, worked at a renovation site that was located at 768 Fifth Ave., in Manhattan. During the course of the day, Davis boarded a personnel hoist that provided access to the upper levels of a building that was being repaired. Davis exited the hoist upon reaching the building’s 10th floor, and she fell while she was descending a temporary ramp that led from the hoist’s landing to the 10th floor. She claimed that she sustained injuries of a knee, her neck and a wrist.

Davis sued the premises’ owner, CPS 1 Realty GP LLC, and the renovation project’s manager, Tishman Construction Corp. Davis alleged that the defendants violated the New York State Labor Law.

Davis claimed that the ramp spanned a gap that measured 2 to 4 feet in height and that its surface was composed of wooden planks. She claimed that one of the planks shifted beneath her feet, that one of her legs fell into an opening created by the shifting plank, and that she fell forward, onto the ramp.

Davis’ counsel contended that the defendants violated New York Codes, Rules, and Regulations, title 23, part 1.7(e)(1), which specifies that a work site’s passageways must be free of any condition that could constitute a tripping hazard, and parts 1.22(b)(2) and 1.22(b)(3), which specify that a ramp’s supporting planks must be securely joined and nailed. He further contended that the violations established that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law § 241(6). Davis’ counsel also contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Davis was not provided the proper, safe equipment that is a requirement of the statute.

Defense counsel contended that the ramp was safe. He also contended that a plank could not have shifted in the manner that Davis described.

Davis’ counsel moved for summary judgment of liability, and the motion was granted. Justice Joan Madden found that the defendants violated Labor Law §§ 240(1) and 241(6). The trial addressed damages.

Frank Besier v. NYCTA

BELOW-THE-KNEE AMPUTATION

Trucker’s helper

New York, NY

$2,275,000, reduced to $1,251,250 for 45% comparative negligence of Pltf. (5/1).

$1,251,250.00

XI/49-2 SUBWAY ACCIDENT PASSENGER FALLS FROM BETWEEN SUBWAY CARS TO TRACKS BELOW-THE-KNEE AMPUTATION

Frank Besier v. NYCTA 40600/90 5-day trial Verdict 4/15/94 Judge Walter J. Relihan, Jr., New York Supreme

VERDICT: $2,275,000, reduced to $1,251,250 for 45% comparative negligence of Pltf. (5/1). Breakdown: $500,000 for past pain and suffering; $500,000 for future pain and suffering; $75,000 for past lost earnings; $1,200,000 for future lost earnings. Jury: 4 male, 2 female.

Pltf. Atty: Daniel Crupain of Crupain & Greenfield, Manhattan

Deft. Atty: Michael Figliolia, Brooklyn

Facts: The accident occurred on 7/16/88 at 1:50 AM at Deft.’s 57th St. subway station in Manhattan. Pltf., a 26-year-old trucker’s helper at the time, testified that he boarded the last car of a northbound train through a passenger door which opened in front of him where he was waiting on the platform of the Union Square station in Manhattan. He testified that he was the only one in the car, and during the ride uptown he realized that the passenger doors were not opening at the stations. Pltf. claimed that he attempted to go to the next car where he anticipated that the doors would be working. The door at the end of the car was unlocked and he stepped into the area between the subway cars, but the door to the next car was locked. Pltf. testified that he turned to go back to the first car when the train lurched, causing him to fall to the tracks. The train ran over him.

The subway cars are 75 feet long with large gaps between each one. Pltf.’s experts testified that the area was unsafe because they had inadequate barriers to prevent falls to the tracks. Pltf. contended that the subway car that he originally boarded should have been totally locked, including all of the passenger doors, and taken out of service.

Deft. denied that the accident occurred as Pltf. claimed, and contended that Pltf. was intoxicated and that he had attempted to board the train between the cars.

Injuries: traumatic below-the-knee amputation of the left leg; fracture of the right heel. Demonstrative evidence: models; photos; graphic drawings. No offer; demand: $3,000,000. Pltf. Experts: Alphus Robb, former NYCTA instructor, Far Rockaway; John Fruin, transportation engineer, Massapequa; Edmond Provder, vocational expert, Manhattan; Dr. Howard Balensweig, orth. surg., Manhattan. There was no expert testimony for Deft.

Doorly and Roselet Gordon v. Tishman Construction Corp. v. D & M Contracting and Developing, Inc.

ULNAR NERVE ENTRAPMENT

Carpenter

Kings, NY

$1,256,029 for Doorly G. (6/0).

$1,256,029.00

XV/25-9 CONSTRUCTION ACCIDENT LABOR LAW JOLT OF NAIL GUN CAUSES WORKER TO FALL ULNAR NERVE ENTRAPMENT DAMAGES TRIAL

Doorly and Roselet Gordon v. Tishman Construction Corp. v. D & M Contracting and Developing, Inc. 18449/91 7-day trial Verdict 10/23/97 Kings Supreme

Judge: Diana A. Johnson

Verdict: $1,256,029 for Doorly G. (6/0). Breakdown: $330, 400 for past pain and suffering; $524,160 for future pain and suffering (20.8 years); $204,750 for past lost earnings; $196,719 for future lost earnings (6.3 years).

$145,275 for Roselet G. for loss of services. Post-trial motions were denied. Notice of Appeal by Third-party Deft. is likely.

Pltf. Atty: Seth E. Coen of Coen & Geoghan, P.C., Brooklyn, and Barbara S. Odwak of Gursky & Odwak, Brooklyn

Deft. Atty: Michael S. Brown of Caulfield, Heller, Harris & Ryan, Manhattan, for Tishman

Robert A. Dashow of Gottesman, Wolgel, Secunda, Malamy & Flynn, Manhattan, for Third-party Deft. D & M

Facts: Pltf. Doorly G. was a 49-year-old carpenter at the time of this accident on 7/12/89 that occurred on Madison Ave. in Manhattan. Pltf. was shooting track in preparation for studs being installed for the creation of walls. He was working on a bench, using a nail gun. The jolt of the gun caused the bench to kick out, and Pltf. fell. As he was falling, he reached out with his left hand and caught his thumb on the adjacent stud. He fell on his left side, striking the elbow on exposed pipes coming up out of the flooring. On 9/3/96, Pltfs. were granted summary judgment against Deft., and Deft. was granted judgment over against Third-party Deft., which was found 100% liable. This case was on damages only.

Injuries: ulnar nerve entrapment causing a flexion contracture of the third, fourth, and fifth fingers. He underwent surgery to reattach a tendon in the thumb. The surgeon who repaired Pltf. s tendon in 1989 testified that Pltf. s injuries were a result of this accident. His vocational rehabilitation expert opined that Pltf. is not employable in a full-time capacity, but could work part-time. He has not worked since the accident. Defts. disputed Pltf. s claims that he sustained the ulnar nerve entrapment or flexion contracture in this accident. They further contended that Pltf. failed to mitigate losses for lost wages by not seeking other employment. Offer: $350,000; demand: $1,000,000; amount asked of the jury: $3,551, 000. Specials: $80,000. Carriers: Travelers/Aetna for Tishman Construction; State Insurance Fund for D & M.

Pltf. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Thomas Fitzgerald, Ph.D., economist, Mt. Vernon; Dr. Steven Green, orth. surg. and hand surgeon, Manhattan.

Deft. Experts: Joyce Mesch-Spinello, Ph.D., vocational rehabilitation, Manhattan; Dr. Jerome Block, neurologist, Manhattan.

Randy and Sandra Joseph v. Lavatec, A.G.; Lavatec, Inc.; Mickron Industries, Inc. v. Hampton Hotel Corp., Ascot Associates, and Baring Industries, Inc.

CRUSH INJURY TO ARM

Assistant engineer for the Hotel Pennsylvania

Kings, NY

This action settled during trial for $1,377,500, plus the waiver of a $ 103,228 Workers’ Compensation lien.

$1,377,500.00

XVII/5-45 PRODUCT LIABILITY COMMERCIAL WASHER MAINTENANCE COMPANY FAILED TO REPLACE GUARDS CRUSH INJURY TO ARM

SETTLEMENT: Randy and Sandra Joseph v. Lavatec, A.G.; Lavatec, Inc.; Mickron Industries, Inc. v. Hampton Hotel Corp., Ascot Associates, and Baring Industries, Inc. 30459/94 Date of Settlement 3/24/99 Kings Supreme

Pltf. Atty: Steven M. O’Connor of O’Connor & O’Connor, White Plains

This action settled during trial for $1,377,500, plus the waiver of a $ 103,228 Workers’ Compensation lien. Pltf., a 29-year-old assistant engineer for the Hotel Pennsylvania in Manhattan, was injured on 7/30/94 at 11:30 AM when his arm became caught in a tunnel washing machine. Pltf. claimed that he was cleaning the machine’s rollers when his hand and forearm were drawn into its pinch point. He contended that Deft. Lavatec failed to provide interlocks, that the machine was defectively designed and unreasonably dangerous, and that it lacked adequate warnings. He also claimed that the washer should have been designed with fault circuits, which would stop operation of the machine if it was started without the safety guard in place. Pltf. claimed that Deft. Mickron was negligent for removing and not replacing guards and covers, which would have prevented him from accessing the rollers and pinch point, and for instructing Pltf. to clean the rollers if necessary. Defts. claimed that Third-party Defts. Hampton and Ascot should not have allowed Pltf. to work on the machine and that Third-party Deft. Baring was responsible under strict product liability as a seller of a defective product. At trial, Mickron’s employees admitted to removing the machine’s guards despite knowing that the guards were meant to prevent injury. Pltf.’s expert testified that OSHA rules stated that any such machine guards should be immediately replaced if they are removed. Pltf.’s employer admitted that Pltf. had not been given instruction on safe use and repair of the washer.

Injuries: crush injury to the right (dominant) hand and arm. Pltf. would have claimed that he had scars and diminished grip and pinch strength of the hand. Demonstrative evidence: photographs of the tunnel washer, rollers, and guards on floor. Specials: $30,000 for medical expenses; $135,000 for past lost earnings. Settlement apportionment: All Defts. and Third-party Deft., except Mickron, settled for $727,500 ($300, 000 from Lavatec; $212,500 from Hampton; $212,500 from Ascot, plus the waiver of a $103,228 Workers’ Compensation lien; $2,500 from Baring Industries); Third-party Deft. Mickron settled for $650,000.

Pltf. Experts: Howard Edelson, OSHA and safety expert, Plainview; Thomas Fitzgerald, Ph.D., economist, Manhattan; Dr. Steven Glickel, hand surgeon, Manhattan; Dr. Edmond Provder, vocational rehabilitation, Manhattan.

Miguel A. Valverde v. Michael Carozza Jr., Thomas F. Corbett Associates, Idowu Daramola and Armani Corp. LLC

CONCUSSION AND DISC HERNIATIONS

Truck Driver

Hudson County, NJ

A week prior to trial, the parties agreed to a $1,425,000 settlement. The settlement was paid from Thomas F. Corbett Associates’ $1 million primary policy with Liberty Mutual Insurance Co. and it’s $10 million excess policy with American International Group Inc.

$1,425,000

On Oct. 22, 2012, plaintiff Miguel Valverde, 46, a truck driver, was driving a bakery delivery truck west on Route 495 in Weehawken. As he entered an exit ramp on the right side of the road, he was rear-ended by a construction truck. Valverde then stuck the rear of a commuter van in front of him before hitting a guard rail on the right side of the highway. Valverde claimed injuries to his head, neck, and low back.

Valverde sued the driver of the construction truck, Michael Carozza Jr., alleging he was negligent. He also sued Carozza’s employer, Thomas F. Corbett Associates, under a theory of vicarious liability.

(The driver of the commuter van, Idowu Daramola, and vehicle owner Armani Corp. LLC were initially named as defendants but were discontinued from suit in 2015.)

Carozza and Thomas F. Corbett Associates disputed liability. They argued that Valverde rear-ended the commuter van, which led to the rear-ender by the construction vehicle.

Andrew Brown and William Major v. Zoraida Quinones and ECCO III

KNEE INJURIES AND HERNIATED LUMBAR DISC

Bronx, NY

This action settled during trial for $1,475,000 for Brown and $90,000 for Major.

$1,475,000.00

XVI/16-44 MOTOR VEHICLE TRACTOR-TRAILER ACCIDENT REAR END CONSTRUCTION ZONE KNEE INJURIES AND HERNIATED LUMBAR DISC

SETTLEMENT: Andrew Brown and William Major v. Zoraida Quinones and ECCO III 8926/94 Date of Settlement 7/6/98 Bronx Supreme

Pltf. Atty: Helene E. Blank, of counsel to S. Edmond Resciniti, Brooklyn

This action settled during trial for $1,475,000 for Brown and $90,000 for Major. Pltfs. claimed that on 10/4/93 at approximately 9:45 AM they were involved in separate motor vehicle accidents while traveling north on I-95 between exits 19 and 22 in Westchester County. Pltf. Brown, a 29- year-old truck driver, was driving a tractor-trailer when Deft. Quinones, a heavy equipment operator, pulled onto the highway in a construction zone without warning or the use of a flagperson. Pltf. claimed that he was unable to stop in time, and struck the rear of the payloader. Pltf. Major, a 41-year-old tractor-trailer driver, was driving behind Brown and struck Brown’s trailer in the rear.

Deft. argued that Pltfs. were speeding in the construction area, and that Major was following too closely behind Brown. Deft. contended that the impact caused by Major contributed to Brown’s injuries.

Injuries: Brown (a 29-year-old tractor-trailer driver $1,475,000 settlement) torn medial menisci of both knees; partial tear of the right anterior cruciate ligament with swelling, joint effusion, and instability; bilateral chondromalacia; cerebral concussion with post-concussion syndrome, headaches, dizziness, memory impairment; cervical and lumbar sprain; blunt trauma to the chest, lung, and abdomen requiring intubation and cardiac monitoring. Pltf. required arthroscopic surgery, synovectomy, meniscectomy, and debridement. Pltf. claimed that he was unable to return to work and he is receiving Social Security Disability. Major (a 41-year- old tractor-trailer $90,000) herniated lumbar disc at L4-5; lumbar radiculopathy; internal derangement of the right knee; cervical sprain; loss of cervical lordosis; right ankle sprain. Pltf. claimed that he suffers swelling, tenderness, and restricted range of motion. He was out of work for 7 months. Specials: approximately $118,000 for Brown; approximately $40,000 for Major. Carriers: St. Paul Fire and Marine and AIG. Settlement apportionment: Brown: $1,350,000 was paid by Deft.; $125, 000 was paid by Major on counterclaim. Major: The entire settlement was paid by Deft.

Pltf. Experts: Dr. Irving Liebman, orth. surg., Manhattan; Dr. Eli Lippman, orth. surg., Baltimore, Maryland; Thomas Fitzgerald, Ph.D., economist, Mt. Vernon; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Dr. Mark Silverman, orth. surg., Rego Park; Dr. Jerome Block, neurologist, Manhattan; Dr. Lewis Rothman, radiologist, Manhattan; John McManus, accident reconstruction, White Plains; Richard Hermance, accident reconstruction, Tillson.

Orlando Fresse v. City of New York v. Volmar Construction

FRACTURED TIBIA AND FIBULA

Roofing mechanic

Kings, NY

This case settled before trial for a partially structured settlement of $1,500,000, plus the waiver of a $140,000 Workers Compensation lien.

$1,500,000.00

XVII/19-38 LABOR LAW ROOFER FALLS AFTER STEPPING ON UNSUPPORTED EDGE OF ROOF AT SCHOOL SUMMARY JUDGMENT AGAINST CITY FRACTURED TIBIA AND FIBULA

SETTLEMENT: Orlando Fresse v. City of New York v. Volmar Construction 24027/95 Date of Settlement 9/13/99 Kings Supreme

Pltf. Atty: Joel P. Iannuzzi of Beck & Iannuzzi, Brooklyn

This case settled before trial for a partially structured settlement of $1,500,000, plus the waiver of a $140,000 Workers Compensation lien. Pltf., then a 41-year-old roofing mechanic employed by Third-party Deft. Volmar Construction, claimed that on 3/7/95 he was injured while working at Prospect High School, located in Brooklyn. Pltf. claimed that he fell from one level of the school roof to another when he stepped on a piece of tar paper on the edge of the roof, which was not supported. Pltf. contended that he was not provided with any harness or other safety equipment, in violation of Labor Law ?240(1). Pltf. s motion for summary judgment, which was denied, was reversed on appeal by the 2nd Dept. (see, Fresse v. City of New York, 238 A.D.2d 374, 657 N.Y.S.2d 330), granting Pltf. summary judgment against the City. Although the City never cross- moved for indemnity against Volmar, it was understood by all parties that Volmar would ultimately assume full liability.

Injuries: comminuted intra-articular fracture of the right tibia, fibula, and medial malleolus. Pltf. underwent open reduction and internal fixation surgery of the ankle joint. He subsequently underwent ankle fusion surgery. Specials: approximately $40,000 per year for lost earnings. Structured settlement details: $200,000 cash and the remainder structured at $2,544 per month for life (with a 5% annual inflation rider) and 20 years, plus a $10,000 payment on 11/15/200, a $12,000 payment on 11/15/2009, and a $17,500 payment on 11/15/2014. Carrier: AIG for Third- party Deft. Volmar Construction.

Pltf. Experts: Edmond Provder, vocational rehabilitation, Manhattan; Seymour Barcun, Ph.D., economist, Metuchen, N.J.; Dr. Philip Taylor, orth. surg., Brooklyn.

Yaron Kaplan v. Shlomo, Uzi, and Rachel Einy v. Robert Elevator Co., Inc.

BRAIN DAMAGE

Part-time student and businessman

New York, NY

This case resulted in a $3,350,000 settlement of which $1,500,000 was structured

$1,500,000.00

XIV/25-34 ELEVATOR ACCIDENT TENANT FALLS DOWN OPEN ELEVATOR SHAFT DUE TO DEFECTIVE INTERLOCK BRAIN DAMAGE

SETTLEMENT: Yaron Kaplan v. Shlomo, Uzi, and Rachel Einy v. Robert Elevator Co., Inc. 20342/90 Date of Settlement 10/1/96 New York Supreme

Pltf. Atty: David C. Cook of Kreindler & Kreindler, Manhattan

This case resulted in a $3,350,000 settlement of which $1,500,000 was structured. Pltf., a 26-year-old part-time student and businessman, claimed that on 9/16/89 he fell four floors down a service elevator shaft at Deft. s apartment building on West End Ave. in Manhattan. Pltf. claimed that he exited his apartment, pivoted toward the open elevator hoistway door that was 18 inches from his apartment door, and fell into the empty elevator shaft. Pltf. landed on his head on top of the elevator car located on the lobby level below. He argued that the interlock system had malfunctioned due to wear and negligent maintenance and that Deft. landlords failed to have it repaired. Tenants of the building testified that they saw Deft. performing their own repairs on the elevator.

Defts. Einy argued that they had an elevator contract with Third- party Deft. Robert Elevator. Third-party Deft. claimed that the contract to repair the service elevator had been canceled in October 1983, and that that it only performed 1- and 2-year mandatory testing on the elevator. Pltf. argued that no repairs had been made on the service elevator for 6 years. Defts. Einy testified that no one other than Robert Elevator performed repairs or maintenance.

Injuries: brain damage resulting in frontal lobe injury, left-sided hemiparesis, shearing of the brain stem, and severe cognitive disorders. Pltf. claimed that he was permanently disabled as a result of the incident . Specials: $86,000 for medical expenses. Carrier: Liberty Mutual for Einy; Mutual Marine Office for Robert Elevator. Settlement apportionment: $ 350,000 was paid by Robert Elevator; $3,000,000 was paid by Einy. Pltf. Expert: Jeffrey Ketchman, mechanical engineer, Mineola; David Hopkins, economist, Philadelphia, Pennsylvania; Dr. Brian Hainlin, neurologist, Manhattan; Dr. Thomas Kay, neuropsychologist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan.

Irvin Liburd v. New York City Transit Authority, MTA Bus and Daphne Morales-Nelson

LUMBAR FUSION

Carpenter

Queens, NY

The parties negotiated a pretrial settlement. MTA Bus agreed to pay $1.5 million.

$1,500,000

On Jan. 15, 2012, plaintiff Irvin Liburd, 51, a carpenter, was driving on the eastbound side of 23rd Avenue, near its intersection at 87th Street, in the East Elmhurst section of Queens. His vehicle’s rear end was struck by a trailing transit bus that was being driven by Daphne Morales-Nelson. Liburd claimed that he sustained injuries of his back and neck.

Liburd sued Morales-Nelson and her bus’s owners, MTA Bus Co. and the New York City Transit Authority. Liburd alleged that Morales-Nelson was negligent in the operation of her vehicle. Liburd further alleged that the remaining defendants were vicariously liable for Morales-Nelson’s actions.

Liburd claimed that the collision occurred while his vehicle was stopped. He claimed that he was uncertain of his surroundings and stopped to seek guidance. He claimed that Morales-Nelson had an adequate opportunity to notice and avoid his vehicle.

Morales-Nelson claimed that Liburd had been stopped alongside a curb. She claimed that he suddenly resumed travel, veered into the path of her bus without having signaled, and decelerated. She claimed that she could not have avoided the collision.

Joseph, Carmen, Yaniera, Zobeyda, and Candida Estevez v. U.S.A.

MULTIPLE INJURIES

NY

$1,993,902 for Joseph, reduced to a present value of $1,600,963. $231,000 for Carmen, reduced to a present value of $211, 000. $100,000 for Yaniera for past and future pain and suffering, reduced to a present value of $95,589. $25,000 for Candida.

$1,600,963.00

XVII/12-40 MOTOR VEHICLE TRACTOR-TRAILER DRIVER LOSES CONTROL OF VEHICLE DEFENSE BLAMED PHANTOM VEHICLE PASSENGERS SUFFER MULTIPLE INJURIES SEAT BELT DEFENSE BENCH TRIAL FTCA

Joseph, Carmen, Yaniera, Zobeyda, and Candida Estevez v. U.S.A. 97 Civ 8234 Decision 3/22/99 Southern District

Judge: Shira A. Scheindlin

Decision: $1,993,902 for Joseph, reduced to a present value of $1,600,963. Breakdown: $500,000 for past pain and suffering; $750, 000 for future pain and suffering; $88,000 for past medical expenses; $ 220,815 for future medical expenses; $432,887 for future lost earnings, reduced to $164,144 (present value).

$231,000 for Carmen, reduced to a present value of $211, 000. Breakdown: $100,000 for past pain and suffering; $50,000 for future pain and suffering; $40,500 for past lost earnings; $40,500 for future lost earnings, reduced to $30,000 (present value).

$100,000 for Yaniera for past and future pain and suffering, reduced to a present value of $95,589.

$30,000 for Zobeyda for past pain and suffering, reduced to $15,000 for 50% comparative negligence.

$25,000 for Candida.

These reductions were made pursuant to CPLR ?5104 and the Federal case law requiring that any future damages award must account for the time value of money. This was a non-jury trial pursuant to the Federal Tort Claims Act.

Pltf. Atty: Alvin H. Broome of Ginsberg & Broome, L.L.P., Manhattan

Deft. Atty: Irene Chang and Jennifer K. Brown, Asst. U.S. Attys., Manhattan

Facts: On 10/11/96, Pltfs. were passengers in a Honda motor vehicle that was traveling on the Cross Bronx Expwy. The driver of the vehicle was Pedro Estevez (non-party; settled prior to trial). Pltf. Joseph (age 3) was seated on the lap of his mother, Pltf. Zobeyda (age 31), in the rear middle passenger seat, with Zobeyda s lap belt fastened around both of them. Pltf. Carmen (age 46) was wearing a seat belt. Pltfs. Yaniera (age 13) and Candida ( age 56) were not wearing seat belts. Deft. s U.S. Post Office tractor-trailer was headed eastbound on the Cross Bronx Expwy. when its driver lost control of the vehicle and crossed two lanes of traffic before hitting the median and coming to a stop across two of the roadway s three lanes. Pltfs. vehicle, which was traveling in the left-most lane, was unable to stop and struck Deft. s vehicle. Deft. contended that its driver was cut off by an unknown truck that fled the scene. Deft. claimed that the alleged phantom vehicle created an emergency situation that made the accident unavoidable.

Injuries: Joseph (age 3 $1,993,902 award): perforated bowel with surgical resection; torn aorta requiring surgical repair; small bowel adhesions requiring abdominal surgery and small bowel resection to remove blockage; lumbar compression fracture at L2-3 requiring fusion; right drop foot. Joseph wore a spinal fracture brace for 7 weeks and he received physical therapy for the drop foot. His treating orthopedist testified that he has made a full recovery from his spinal injury. Pltf. subpoenaed Deft. s medical expert, who testified that Joseph risks developing intestinal adhesions in the future, and that he requires prophylactic antibiotics prior to any dental treatment or surgery to prevent the possibility of endocarditis. Deft. s expert pediatric neurologist testified that the drop foot was caused by a contracture of the flexors resulting in weakness of dorsiflexion, that it was not a permanent condition, and that it could be corrected by therapy. Pltf. s expert contended that the condition was permanent. Pltf. also produced a vocational economist who testified that Joseph would likely earn less money over his decreased work-life expectancy than a non-disabled college graduate. The court rejected this argument as speculative, but agreed that Pltf. s work-life expectancy would most likely be 6.7 years shorter than the average.

Carmen (age 46 $231,000 award): compression fracture at L-1. She was hospitalized and in a back brace for 3 weeks after the accident, but did not have surgery. Pltf. had been employed as a home health aide, but claimed that she is no longer able to perform her job because it required heavy physical labor that included lifting patients. Deft. contended that Pltf. was able to work at many jobs that did not require heavy lifting, and that she failed to mitigate her damages by seeking alternative employment.

Candida (age 56 $25,000 award): fracture of the fifth metacarpal of the left hand. Pltf. had previously sustained an injury to the same hand. Deft. contended that Pltf. s failure to wear a seat belt caused her injury. The court discounted the extent and nature of her injury due to the pre- existing condition.

Zobeyda (age 31 $30,000 award): four fractured ribs; lacerated spleen. Pltf. presented no medical testimony aside from her hospital records. Deft. claimed that Pltf. caused her own injuries and failed to exercise reasonable care because her son was sitting in her lap with a single seat belt around them.

Yaniera (age 13 $100,000 award): facial laceration resulting in a 3-inch scar on the forehead that ran across to the eyebrow. Pltf. s experts contended that the scar was permanent. Deft. s experts testified that revision surgery would remove the scar. The court found no evidence to indicate that Pltf. s damages would have been any different if she had been wearing a seat belt. Demonstrative evidence: Deft. s videotape of Joseph; video projections of X-rays and MRIs; anatomical drawings.

Pltf. Experts: Dr. Leon Charash, pediatric neurologist, Hicksville; Dr. Leonard Seimon, orth. surg., Bronx; Andrew Gluck, vocational economist, Manhattan; Dr. Herbert Sherry, orth. surg., Manhattan; Edmond Provder, vocational rehabilitation, New Jersey; Dr. Leonard Sharzer, plastic surgeon, Manhattan; Dr. Joel Grad, hand surgeon, Manhattan.

Deft. Expert: Dr. Nitsana Spigland, pediatric surgeon, Manhattan; Dr. Ira Richmond Abbott, pediatric neurologist and neurosurgeon, Manhattan; Dr. George DiGiacinto, neurosurgeon, Manhattan; Dr. Carroll Lesesne, plastic surgeon, Manhattan; Dr. Otis Alton Barron, orth. surg., Manhattan.

Charles Hartkorn v. 334 West 87th St. Corp.; Alpine Scaffold & Equipment Corp.; and Blade Contracting, Inc.

FRACTURED HIP, VERTEBRA, RADIUS, AND ULNA

Carpenter

NY

This action settled for $1,700,000, plus a waiver of a $175,000 Workers’ Compensation lien

$1,700,000.00

XIV/7-27 SCAFFOLD ACCIDENT LABOR LAW FRACTURED HIP, VERTEBRA, RADIUS, AND ULNA

SETTLEMENT: Charles Hartkorn v. 334 West 87th St. Corp.; Alpine Scaffold & Equipment Corp.; and Blade Contracting, Inc. 107284/93 Date of Settlement 6/20/96 New York Supreme

Pltf. Atty: Marshall Schmeizer of Queller & Fisher, for Kenneth A. Wilhelm, Manhattan

This action settled for $1,700,000, plus a waiver of a $175,000 Workers’ Compensation lien. Pltf., a 52-year-old carpenter, claimed that on 4/9/92 he was injured as he descended a parapet roof to a scaffold. He testified that the outriggers and two of the three planks had been removed from the scaffold. Pltf. claimed that he hung from the roof and dropped a short distance onto the single remaining plank, which broke. Pltf. brought this action against Deft. Blade Contracting under Labor Law ?? 240( 1), 241(6), and 200, and against Deft. Alpine for common law negligence.

Injuries: fractured hip requiring open reduction and internal fixation; compression fracture at L-2; comminuted fracture of the left ( nondominant) distal radius and ulna. Pltf. testified that he is permanently disabled from this type of work and can only perform sedentary work. Pltf. has a tenth-grade education and worked in the construction field for 40 years. Deft. would have argued that Pltf.’s injuries were not as serious as he claimed and that he was able to earn a living in a different field. Pltf. Experts: Dr. William Snover, emergency room medicine, Danville, Pennsylvania; John Hagopian, P.E., engineer, Binghamton; Edmond Provder, vocational rehabilitation, Manhattan; Conrad Berenson, Ph.D., economist, Woodbury. Deft. Experts: Dr. Kenneth Perrine, neuropsychologist, Manhattan; Dr. Brian Hainline, neurologist, Manhasset; Dr. Jean-Francois Eid, urologist, Manhattan

Mia Battle v. Structure Tone (UK) Inc, Russell Investment Management Company, MetLife Inc, Equity Office Management LLC & The Blackstone Group LP

HERNIATED DISCS AND NERVE DAMAGE

Union-affiliated Apprentice Carpenter

Bronx, New York

The parties negotiated a pretrial settlement. Structure Tone’s insurer agreed to pay $1 million, and National Acoustics’ insurer agreed to pay $750,000. Thus, the settlement totaled $1.75 million. The negotiations were mediated by Robert Adams, of National Arbitration and Mediation Inc.

$1,750,000

On Dec. 23, 2009, plaintiff Mia Battle, 28, a union-affiliated apprentice carpenter, worked at a renovation site that was located at 1095 Sixth Ave., in Manhattan. Battle was installing ceiling tiles. She had been provided a rolling scaffold for access to the ceiling. The scaffold collapsed during the course of Battle’s work, and Battle plummeted some 8 feet. She landed in a wheelbarrow, and she claimed that she sustained injuries of her back and a knee.

Battle sued a contractor that oversaw the renovation, Structure Tone (UK) Inc.; the premises’ owners, MetLife Inc. and Equity Office Management, LLC; the tenant that occupied the space in which Battle worked, Russell Investment Management Co.; and the renovation project’s bond holder, The Blackstone Group L.P. Battle alleged that the defendants violated the New York State Labor Law.

The defendants impleaded Battle’s employer, National Acoustics Inc. The first-party defendants alleged that National Acoustics controlled and directed Battle’s work.

Equity Office Management, MetLife, Russell Investment Management and the Blackstone Group were dismissed. The matter proceeded against National Acoustics and Structure Tone.

Battle claimed that the scaffold tipped and collapsed while she was stepping onto its platform, from its attached ladder. She contended that the scaffold was unstable and therefore unsuitable for the task that she was performing. She noted that the scaffold and its ladder lacked protective railings.

Battle’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Battle was not provided the proper, safe equipment that is a requirement of the statute.

Defense counsel contended that the scaffold was safe. They also contended that the accident was a result of Battle’s failure to properly center herself on the scaffold’s platform.

Michael and Judith Rogers v. State of New York

REFLEX SYMPATHETIC DYSTROPHY

Refrigeration steamfitter

Albany, NY

$2,995,575 for Michael R., reduced to $1,797,345 for 40% comparative negligence of Clmt. and structuring pursuant to CPLR 50-B.

$1,797,345.00

XIV/46-29 FALLDOWN HOLE IN FLOOR OF COMPUTER ROOM REFLEX SYMPATHETIC DYSTROPHY

Michael and Judith Rogers v. State of New York Claim No. 83300 16-Page Decision Filed 4/15/97 Judge Thomas J. McNamara, Court of Claims, Albany

DECISION: $2,995,575 for Michael R., reduced to $1,797,345 for 40% comparative negligence of Clmt. and structuring pursuant to CPLR 50-B. Breakdown: $300,000 for past pain and suffering; $1,700, 000 for future pain and suffering; $169,600 for past lost earnings; $ 825,975 for future lost earnings and benefits.

$300,000 for Judith R. for loss of services, reduced to $ 180,000 for 40% comparative negligence of Clmt. Breakdown: $45,000 for past loss of services; $255,000 for future loss of services.

Clmt. Atty: Thomas E. DeLorenzo of DeLorenzo, Gordon, Pasquariello, Weiskopf & Harding, Schenectady

Deft. Atty: Kevin J. Acton, Asst. Atty. General

Facts: On 10/31/90, Clmt., a refrigeration steamfitter, was called to service the computer room of the Legislative Bill Drafting Commission in Albany. He was carrying a panel with his hands, which prevented him from seeing the floor. As he turned around to place the panel on the floor, he stepped with his left foot into a hole. As he fell, his body twisted, and he landed on his buttocks. The proof showed that the hole was a cutout for cables near the computer where he fell. The floor was raised to accommodate such holes. Raised holes such as this are commonly used in computer rooms to provide an unobtrusive space for the cables. The court found that the presence of this hole, and several others, constituted a dangerous condition. The court also found that it was foreseeable, because the frequency of visits of service technicians in the computer room presented a clear likelihood of injury. The court found that Clmt. also bore responsibility for the accident, because he was aware, from five or six prior visits, that there were two other holes in the floor.

Injuries: reflex sympathetic dystrophy. One of Clmt. s orthopedic surgeons testified that reflex sympathetic dystrophy generally results from nerve damage and is characterized by persistent burning pain, numbness, and a tingling cold sensation in the affected parts of the body: in Clmt. s case, in the lower back, legs and feet. These symptoms are created by a malfunction in the sympathetic nerve fibers, which control temperature in the body. This causes blood vessels to narrow, making less oxygen available to the tissues in the affected areas. Clmt. s own testimony indicated that he attempted to work the following day, but was required to stop. He sought treatment the following night in an emergency room, complaining of extreme pain in his legs. He has not worked since that time. Deft. s examining physician disagreed with the diagnosis of reflex sympathetic dystrophy, basing his testimony on evidence that nerve blocks performed by one of Clmt. s physicians did not work. Deft. s physician attributed the complaints to an irritation of the sensory branches of the nerve roots in the area. The court found that the issue of whether Clmt. suffered reflex sympathetic dystrophy was academic, given the fact that Clmt. s expert agreed that Clmt. was suffering chronic muscular and ligamentous strain as a result of his fall in the computer room. Decision at p. 11. The only substantive point raised by Deft. s expert was whether Clmt. was totally disabled. The court found that he was disabled, noting that he was eligible for Social Security disability benefits beginning in 1992. Clmt. s age was not noted in the opinion, but it was noted that at the time of trial, he had a work-life expectancy of about 20.3 years, and a life expectancy of approximately 41 years. He was earning $36,000 in base salary, plus his benefits and overtime, at the time of his injury. Clmt. Experts: Dr. Reynaldo Lazaro, neurologist, Albany; Dr. James Nelson, orth. surg., Schenectady; Dr. Barry Greenhouse, anesthesiologist, Albany; Edmond Provder, vocational rehabilitation counselor, Manhattan; James Lambrinos, Ph.D., economist, Clifton Park. Deft. Expert: Dr. John Dolan, orth. surg., Schenectady.

Sonia Suga v. City of New York and NYCCHC

FRACTURES OF THE ELBOW, VERTEBRA, AND TIBIAL PLATEAU

Queens, NY

$1,349,000 (6/0). Breakdown: $580,000 for past pain and suffering; $73,000 for past lost earnings; $36,000 for past medical expenses; $510,000 for future pain and suffering?

$1,349,000.00

XI/33-14 MOTOR VEHICLE PEDESTRIAN AT BUS STOP FRACTURES OF THE ELBOW, VERTEBRA, AND TIBIAL PLATEAU

Sonia Suga v. City of New York and NYCCHC 22484/91 6-day trial Verdict 2/4/94 Judge Orin R. Kitzes, Queens Supreme

VERDICT: $1,349,000 (6/0). Breakdown: $580,000 for past pain and suffering; $73,000 for past lost earnings; $36,000 for past medical expenses; $510,000 for future pain and suffering; $100,000 for future lost earnings; $50,000 for future medical expenses. Post-trial motions were denied. Jury: 3 male, 3 female.

Pltf. Atty: Gerald Eisenberg of Eisenberg, Margolis, Friedman & Basichas, Manhattan

Deft. Atty: William J. Fay, Jr., Asst. Corp. Counsel

Facts: The accident occurred on 6/5/91 at 11:40 AM near the intersection of 164th St. and 82nd Rd. in Flushing. Pltf., a 62-year-old patient transporter for Long Island Jewish Hospital, claimed that she was truck by a van owned by Deft. NYCHHC as she stood at a bus stop. She claimed that the van, which was improperly parked at the bus stop, backed up without warning and knocked her down. Pltf. produced the uniform that she was wearing at the time of the accident which bore tire marks from the van. Deft. contended that Pltf. was leaning over the curb and was not paying attention to her surroundings or to the sound of the van backing up.

Injuries: fracture of the left (nondominant) elbow requiring open reduction and internal fixation; compression fracture at L-2; fracture of the tibial plateau; fractured ribs. Pltf., who was employed by Long Island Jewish Hospital for 22 years, claimed that she is no longer able to work. Pltf.’s expert testified that she will require future surgery for the removal of the hardware from her elbow. Pltf.’s vocational rehabilitation expert testified that she is completely disabled from work. Demonstrative evidence: X-rays; MRIs; enlargements of Defts.’ accident reports; enlargements of photographs; the uniform that Pltf. was wearing at the time of the accident. Offer: $300,000; demand: $1,500,000; amount asked of jury: $1,800,000. Jury deliberation: 6 hours. Pltf. Experts: Dr. Ronald Light, orth. surg., Lake Success; Edmond Provder, vocational rehabilitation, Manhattan. There was no expert testimony for Deft.

Maria Marin v. NYCHHC

CHRONIC PAIN SYNDROME

College student

NY

This was a structured settlement during jury selection, with a total present value of $1,800,000, for a 30-year-old college student who underwent surgery performed by Deft. for treatment of a herniated disc

$1,800,000.00

XIII/36-38 MEDICAL MALPRACTICE SPINAL SURGERY TREATMENT OF POSTOPERATIVE INFECTION CHRONIC PAIN SYNDROME

SETTLEMENT: Maria Marin v. NYCHHC 2051/90 Date of Settlement 12/15/95 Queens Supreme

Pltf. Atty: Bertram D. Fisher of Queller & Fisher, Manhattan

This was a structured settlement during jury selection, with a total present value of $1,800,000, for a 30-year-old college student who underwent surgery performed by Deft. for treatment of a herniated disc. Pltf. contended that although preoperative CAT scans showed a left-sided herniation, Deft. operated on the right side of the spine, and weakened a stabilizing joint in the spine that snapped off several days later. A second operation at the same site was performed by Deft. 1 week after the first surgery. After the second operation, Pltf. began draining large amounts of fluid from the operative site. Pltf. contended that Deft. failed to immediately culture the drainage for infection. She claimed that when the infection was diagnosed, Deft. failed to timely administer antibiotics, allowing the infection to spread to the spinal nerve roots. Pltf. claimed that scar tissue from the untreated infection and surgeries caused chronic pain syndrome. She claimed that she is totally disabled.

Deft. contended that Pltf. had a central herniated disc that could have been reached from the right or left side. Deft. also contended that a postoperative infection is a risk with any surgery and that Pltf.’s infection was treated properly

Note: The New York Jury Verdict Reporter has been advised that a Deft. neurosurgeon in this case voluntarily surrendered his privileges to practice medicine in New York State following this occurrence, due to prior conduct on his part that may have impaired his ability during the period that this operation took place. The court did not have the opportunity to rule on the admissibility of this evidence. Pltf. Experts: Pltf. would have called Dr. Hugo Keim, spinal surgeon, Pawling; Dr. Benjamin Luft, infectious diseases, Stony Brook; Dr. Sanders Davis, physical and rehabilitative medicine, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Dr. Conrad Berenson, Ph.D., economist, Woodbury.

Alvaro Anton v. West Manor Construction Corp. Larino Masonry, Inc., Bradhurst 100 Development, LLC, & NYC Partnership Housing Development Fund Company, Inc.

HEAD, NECK AND SHOULDER INJURIES

Plumber

Bronx, New York

The parties negotiated a pretrial settlement, which was finalized via the guidance of mediator Susan Hernandez-Roura. Larino Masonry’s insurers agreed to pay a total of $2.65 million. Larino Masonry’s primary insurer also reimbursed more than $800,000 in attorney’s fees incurred by NYC Partnership Housing Development Fund.

$2,650,000

On May 18, 2006, plaintiff Alvaro Anton, 32, a plumber, worked at a construction site that was located at 102 Bradhurst Ave., in the Harlem section of Manhattan. While Anton was standing on a driveway that provided access to a basement, he was struck by a cinder block that had been dropped off of the sixth story of the building that was being constructed. Anton claimed that he sustained injuries of his head, his neck and a shoulder.

Anton sued the premises’ owner, NYC Partnership Housing Development Fund Co. Inc., the construction project’s general contractor, West Manor Construction Corp., the project’s developer, Bradhurst 100 Development LLC, and a subcontractor who employed the person who dropped the cinder block, Larino Masonry Inc. Anton alleged that the defendants violated the New York State Labor Law.

Bradhurst 100 Development, Larino Masonry and West Manor Construction impleaded Anton’s employer, Tiegre Mechanical Corp. Bradhurst 100 Development, Larino Masonry and West Manor Construction alleged that Tiegre Mechanical controlled and directed Anton’s work functions. They sought contractual indemnification.

NYC Partnership Housing Development Fund was awarded conditional indemnity by Bradhurst 100 Development and West Manor Construction.

Anton claimed that the incident occurred at the beginning of the workday, moments after he had delivered a key to a toolbox that was located in the basement, which also served as a parking garage for workers. Anton’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Anton was not provided the proper, safe equipment that is a requirement of the statute. He also contended that the site was not properly safeguarded, as required by Labor Law § 241(6), and that the defendants violated Labor Law § 200, which defines general safety requirements.

Counsel of Bradhurst 100 Development, Larino Masonry and West Manor Construction contended that the accident occurred in an area that was off-limits to non-supervisory personnel, which included Anton, but that the restriction had not been communicated to Anton by Anton’s employer, Tiegre Mechanical.

Each party moved for summary judgment of liability. Judge Norma Ruiz dismissed the claims against Tiegre Mechanical, and she found that the remaining defendants violated Labor Law § 240(1). The matter proceeded to damages.