Delayed Treatment led to Plaintiff's Brain Damage
On November 15, 2001, plaintiff JS, 42, occupation not given, went to his
primary care physician complaining of severe headaches, and was given
painkillers. On November 16, he went to a Hospital in Hamilton, complaining
of a headache for five days and being unsteady on his feet. Dr. C ordered
a CT scan that showed a colloid cyst on his brain. A radiologist suggested
an MRI, but Dr. C said JS had a tension headaches. He prescribed pain
medication and sent him home.
JS returned on November 17, complaining of a worsening headache and an
inability to move his right leg. Neurologist Dr. V concluded that JS was
suffering from a conversion disorder (a form of psychotic episode). After
reporting these findings the Dr. C, Dr. V recommended that JS be discharged
with instructions to have an MRI as an outpatient. Dr. C consulted on
the phone with Dr. G, a family medicine practitioner who had seen JS on
occasions, and told him that he was being discharged.
On November 18, JS returned to the same emergency room complaining of headaches
and now reported that he had fallen 15 to 20 separate times since being
sent home the previous day. JS was seen by another specialist who noted
tremors. He was admitted to the hospital. Dr. O worked in the emergency
room and was on duty when JS was admitted. Dr. W was on call on November
17 and 18. A November 19 MRI exam showed an aneurysm in the area of the
previously discovered cyst. The doctors took no action until November
20, when he underwent a cerebral angiogram that revealed a large aneurysm
and subarachnoid hemorrhage. He was then transferred to a Hospital at
New Brunswick and underwent surgery. He sustained brain damage.
JS sued Dr. C, Dr. V, Dr. W, Dr. O, Dr. G and the Hospital for medical
malpractice. He alleged that Dr. C and Dr. V failed to properly diagnose
his condition and that Dr. W failed to respond on November 17 and 18.
He alleged that Dr. G failed to realize that Dr. C's indicated intention
of not admitting the plaintiff was wrong. He alleged that Dr. O should
have been more proactive and he should have required faster testing and
treatment immediately subsequent to the plaintiff’s hospitalization.
Dr. V and Dr. W settled during trial. Dr. G was granted a voluntary dismissal
during trial immediately following his testimony. The hospital was dismissed
from the case by the trial judge during the trial.
The remaining doctors denied that they were negligent in their failure
to make a more timely diagnosis and contended that JS’s preexisting
condition - the aneurysm he presented with - was the cause of his injury.
JS sustained brain damage from the subarachnoid hemorrhaging. He can only
communicate through head nods and hand gestures, and cannot eat or breathe
on his own. He now lives in a long-term care facility with 24-hour supervision.
The jury found that Dr. O was not negligent and that the negligence of
the remaining defendants proximately caused the plaintiff’s injuries.
It apportioned 42.56% negligence to Dr. V, 33.88% to Dr. C and 17.88%
to Dr. W. The jury also found the plaintiff’s preexisting condition
5.68% responsible for the injury. The jury awarded $25 million. During
jury deliberation, the attorneys stipulated to $513,273.38 in past medical
expenses if the jury returned a plaintiff’s verdict. Therefore the
plaintiff netted $25,513,273.38. However, the portion of the verdict attributed
to the plaintiff’s preexisting reduced the award by $1,45 million.
The award was further reduced by $16,890,000 on account of the portion
of the liability attributed to the settling defendants, so the plaintiff
Trial length-15 days. Trial deliberation-2 days.
Plaintiff’s experts: Joseph Carfi, M.D., life care planning, Great
Neck, NY; Richard Lechtenberg, M.D., neurology, Glen Cove, NY; Diane M.
Sixsmith, M.D., emergency medicine, Flushing, NY
Attorneys for Plaintiffs: Charles A. Cerussi of Cerussi & Gunn, P.C.,
Shrewsbury, NJ and James F. Wilkens, Duffy, Duffy & Burdo, Uniondale, NY
Estate of an elderly woman who was tragically killed in an accident
settlement for the Estate of an elderly woman who was tragically killed
in an accident involving a tractor trailer. Mr. Cerussi was admitted in
the State of Delaware (where the accident occurred) for the purpose of
trying the case on behalf of the family members, who resided in New Jersey.
Construction Site Negligence
This action involved two plaintiff masons, each 40 at the time, who were
involved in the construction of a pharmacy, and in which the plaintiff
contended that the defendant general contractor failed to provide bracing
as required by OSHA as the wall was being built. The wall collapsed and
the plaintiffs fell 22 feet.
The plaintiff maintained that OSHA regulations require the use of temporary
bracing for masonry walls over eight feet in height unless the wall was
adequately otherwise supported. The plaintiffs contended that the wall
was not braced and that as the plaintiffs were near completing the wall
while working from an adjacent pump scaffold, it collapsed, the plaintiffs
lost their balance and fell, landing on top of the concrete block and
steel lintels that were part of the wall.
The incident occurred as the plaintiffs were constructing the east, or
final exterior wall of the pharmacy. The prior three walls had been constructed
over the course of the preceding several months and the plaintiff maintained
that proper wall bracing was not utilized in accordance with OSHA on these
walls as well.
The initial plaintiff contended that he sustained an open fracture of the
right calcaneus, as well as a torn plantar fascia on the right side. The
plaintiff underwent and open reduction and internal fixation of the fracture.
The plaintiff contended that because of the infection, he required some
nine irrigation and debridement procedures and a split-thickness skin
graft. This plaintiff maintained that right foot is severely deformed
and that he must wear special padding in his shoes to minimize pain when
ambulating. The plaintiff also contended that he continues to experience
a burning sensation within the right foot, and that the skin feels tight
due to the frequent swelling episodes. The plaintiff contended that the
plaintiff will have to cope with the sequelae from the injuries for the
remainder of his 35 year life expectancy.
This plaintiff also maintained that in order to treat the compression fracture,
he wore a TLSO brace for approximately three months. The plaintiff maintained
that this course was inadequate and that he also underwent an epidural
injection, which did not give him any relief. The plaintiff contended
that he also received two facet joint injections, without improvement.
The plaintiff's orthopedist indicated that his next option would be
fusion surgery. The plaintiff contended that because of the risks, he
has declined, deciding that he would attempt to live with the lumbar pain.
He was instructed to continue his home exercise program, take over the
counter medication for his pain as needed, and follow-up on an as needed basis.
The plaintiff also underwent surgery to treat the fracture to the left
humerus. The plaintiff has pain sleeping at night and is unable to reach
over his head or behind his back. He experiences clicking, popping and
catching in the left shoulder. The plaintiff maintained that he will be
permanently unable to sit or stand for extended periods without suffering
pain and that walking is painful and difficult as well. The plaintiff
related that he generally uses a can to assist in walking.
The plaintiff contended that he can no longer do any normal household,
working or recreational activities that he previously performed. Prior
to the accident, the household chores were shared in the home by the plaintiff
and his wife. The plaintiff maintained that he must now rely on his wife
to perform the majority of household tasks.
This plaintiff further contended that during the initial hospitalization,
he developed a cardiac arrhythmia post-operatively, and underwent multiple
procedures in the cardiac lab for cardiac ablation. After being discharged
from the hospital to a rehabilitation facility, the plaintiff was re-hospitalized
for supraventricular tachycardia, which required DVT prophylaxis and cardiac
catheterization. There was no evidence of continuing cardiac difficulties.
This plaintiff, who maintained that he will be permanently unable to work,
is an undocumented alien and made no future income claims.
The second plaintiff sustained fractures to the pelvis, right scapula and
rib. This plaintiff missed seven week from work. The plaintiff contended
that he works despite continuing pain and avoids engaging in sporting
and other athletic endeavors formerly enjoyed. This plaintiff also contended
that he sustained a degloving injury to the scalp that required suturing.
The scarring is within the hairline. The plaintiff contended that this
injury has caused some numbness and frequent headaches that the plaintiff
maintained will continue permanently. He also contended that he suffers
frequent nightmares and flashbacks of the event, as well as a fear of heights.
The first plaintiff's case settled for $2,900,000 and the second plaintiff's
case settled for $325,000.
F.D. v. B.G., et. al. Docket no. MID-L-9573-09, 05-12.
Attorneys for plaintiffs: Charles A. Cerussi of Cerussi & Gunn, P.C.
in Shrewsbury, NJ and Michael T. Carton of Kroll Heineman Carton, LLC
in Iselin, NJ.
The plaintiff emphasized that although OSHA regulations require temporary
bracing for masonry walls over eight feet in height unless the wall is
adequately supported so it will not collapse, the wall in question was
24 feet high. Additionally, the evidence that the incident occurred when
the final of four exterior walls were built and that such safeguards had
not been taken when the previous three walls were constructed would have
undoubtedly heightened the jury response which would already be anticipated
because of such a traumatic incident.
It should be noted that the plaintiffs are undocumented aliens and could
not make a claim for future lost income. It is felt that the jury could
well appreciate that the life of the initial plaintiff, who has not been
able to return to work, and whose permanent injuries included a significant
deformity, has been inextricably altered even in the absence of a future
lost wage claim.
Premises Liability Case
This was an action involving the plaintiff, in his 30s, who was attending
a co-ed children's talent pageant in which the daughter of his longtime
girlfriend was a participant. The plaintiff contended that the presence
of an approximately two-foot-wide gap situated immediately behind the
rear curtain of the temporary stage erected for the pageant constituted
a hidden hazard, resulting in his falling as he attempted to stand behind
his girlfriend and her daughter while posing for a photograph after the
completion of the pageant. The plaintiff suffered a cervical herniation,
which he maintained will cause severe permanent pain despite fusion surgery,
as well as shoulder impingement syndrome which essentially resolved with surgery.
The pageant was held in the ballroom of the defendant hotel. The stage
in question was constructed by the co-defendant rental agency specifically
for use during the pageant; during general use, the ballroom did not have
a stage. The plaintiff contended that the rental company that constructed
the stage created the hazard and that the defendant pageant, who puts
on such shows nationally, negligently failed to properly coordinate and
supervise the activity. The plaintiff also named the hotel on the basis
of its nondelagable duty to provide a safe premises. Finally, the plaintiff
maintained that the co-defendant photographer was aware of the gap in
the stage behind the rear curtain and nonetheless negligently failed to
warn of the hazard when the photograph was taken shortly after the completion
of the show. Prior to trial, the plaintiff entered into settlements of
$75,000 with the hotel, $50,000 with the photographer and $15,000 with
the rental company, proceeding to trial against the pageant.
The plaintiff related that after the pageant ended, he, his girlfriend
and his girlfriend's daughter returned to their rooom and then realized
that they forgot to have the pre-arranged photograph taken. The plaintiff
returned downstairs, and since the photographer was packing away his backdrop,
it was decided that the rear curtain on the temporary stage would be used.
The plaintiff maintained that after an initial photograph of the girlfriend
and her daughter was taken, as the two were standing slightly in front
of the rear curtain, he advised the photographer that he wanted another
photograph taken in which he was included. The plaintiff contended that
since he was wearing jeans, it was decided that he would stand behind
the other two. The plaintiff maintined that as he stood behind the others,
his feet slipped under the curtain and he fell through the gap - three
feet deep and two feet wide - between the rear curtain and wall.
The plaintiff maintained that the pageant, which produced such shows in
numerous different arenas and has stages constructed to its specifications,
clearly should have better supervised the stage rental company, espcially
since the specifications did not make reference to the rear curtain, which
the plaintiff argued constituted the major portion of the hazard.
The pageant contended that the preliminary responsibility rested with the
hotel, which rented the space to the pageant and had a nondelagable duty.
The pageant also pointed to the contract between the hotel and the pageant
which provided that the hotel would supply the stage. The pageant maintained
that if the stage were not in a safe condition, the hotel was at fault.
The defense further argued that the incident would not have occurred if
the plaintiff had been paying better attention. In response, the plaintiff
presented a human factors expert who testified that while engaging in
normal activities, such as posing for a photograph, an individual would
tend not to be looking for hazards, rendering such an individual all the
more vulnerable to a hidden hazard than he or she would be in a situation
in which they would be anticipating such danger.
The plaintiff suffered a cervical herniation and impingement syndrome.
The impingement syndrome essentially resolved with surgery. The plaintiff
contended, however, that the radiating cervical pain was severe and that
despite fusion surgery, he continues to suffer chronic, severe pain on
a daily basis. the plaintiff's orthopedic surgeon contended that such
pain is permanent, will not improve and that the plaintiff is at significant
risk for deterioration in the future.
The evidence reflected that the plaintiff has been able to return to his
position as a telephone lineman, and the defendant pointed out that it
is clear that he is able to perform significant physical work. The plaintiff
countered that he works despite the severe pain because of the economic
necessity. The plaintiff introduced medical illustrations depicting the
surgery and hardware in his neck and argued that in view of the objective
nature of the evidence of severe injury, it was clear that his determination
to continue in his job evidenced a very stoic and dedicated individual
who engaged in such rigorous work despite the obvious impediments. The
plaintiff contended that he has very little residual energy following
work and has been forced to give up most activities he formerly enjoyed,
including exercise, pickup sports with friends and attending a driving
range with his daughter. The plaintiff also maintained that he frequently
has difficulties sleeping. The defendant did not present its examining
physician, and the plaintiff argued that it was unrebutted that the plaintiff
will permanently suffer severe pain which will not improve and may well
deteriorate in the future.
The jury found the settling hotel 70% negligent, the settling photographer
5% negligent, exonerated the settling rental company and found the non-settling
pageant 25% negligent. It then rendered a gross award of $3,000,000. The
non-settling defendant's posttrial motions are pending.
It is felt that the plaintiff obtained a particularly substantial award
in view of the fact that he was able to return to his job as a telephone
lineman, despite the herniation and need for fusion surgery. The plaintiff
made effective use of demonstrative evidence in the form of medical illustrations,
which depicted the nature of the fusion surgery and the titanium plates,
and it is thought that this evidence placed the plaintiff in a very favored
light. In this regard, the plaintiff contended that in view of the obvious
and objective nature of the injuries, the continuation of this work evidenced
a very determined and courageous individual who would not permit the injuries
to have a greater effect on his life than absolutely necessary. Additionally,
the trumatic nature of the incident, in which the plaintiff was suddenly
contronted with the hazard of the wide gap that was hidden by the rear
curtain of the stage, probably had a significant impact on the jury. Finally,
with respect to damages, the plaintiff emphasized that the unrebutted
medical evidence reflected that the plaintiff will not have any improvement,
that his condition may well deteriorate in the future, and argued that
the jury should consider that he will suffer this pain for a total of
45 years, inlcusive of his 41 year actuarial life expectancy, combined
with the four years of past pain and suffering.
Regarding liability, the jury assessed 70% negligence against the settling
hotel, notwithstanding the plaintiff's arguments that as the entity
producing the shows at different locations around the nation, it had the
most expertise and should have coordinated the work that was done to its
specifications. The pageant, who argued that the jury should give consideration
to the contract between the hotel and pageant, in which the hotel agreed
to provide the stage, was probably also helped in its endeavors to assess
a larger percentage against the settling hotel by the strong language
in the jury charge regarding the hotel's nondelagable duty. Finally,
the plaitniff, who avoided the assessment of any comparative negligence,
stressed through the testimony of his human factors expert that since
the plaintiff was engaging in normal, everyday activities, such as posing
for a photograph, he would tend not to be on the lookout for potential
hazards and that his factor would, in and of itself, tend to make him
much more vulnerable.
M.P. vs. American Co-Ed Pageants, Inc. Docket No.: PAS-L-1149-00; Judge Burrell Iyves Humphreys, October 9, 2002.
Attorney for plaintiff: Charles A. Cerussi of Red Bank and Manhattan.
An obstetrician failed to appreciate our client's signs and symptoms of cervical cancer.
medical malpractice settlement - An obstetrician failed to appreciate
our client's signs and symptoms of cervical cancer. By the time the
cancer was diagnosed, the cancer had spread to multiple organs, and our
client passed away from the cancer.
The 44 year-old male plaintiff was undergoing a surgical repair of a ruptured
Achilles tendon. The procedure was being performed under regional anesthesia,
specifically by epidural with conscious sedation. It was alleged that
approximately 90 minutes into the procedure the plaintiff's vital
signs significantly changed. Specifically, his heart rate had dropped,
his blood pressure had decreased, and his oxygen saturation level went
from 99% to 59% over the course of several minutes. It was alleged that
these changes were caused by respiratory insufficiency that was being
experienced by the plaintiff, who was in a prone position for the subject
procedure, and that the defendant anesthesiologist negligently failed
to monitor the patient and appreciate distress. The declining oxygen saturation
rates resulted in the plaintiff suffering respiratory arrest. The plaintiff
contended that he suffered brain damage that has left him with permanent
and very significant difficulties with short-term memory and communication
skills. The plaintiff, who had worked as a CFO for health care system,
maintained that he is permanently unemployable.
The evidence disclosed that the plaintiff had undergone a prior attempted
Achilles tendon repair under general anesthesia. This prior repair attempt
failed, and because the plaintiff found the general anesthesia difficult
to tolerate, he opted for regional anesthetic by epidural with conscious
sedation. The plaintiff also maintained that as a large individual, the
plaintiff was at an increased risk of a hypoxic insult when he was in
the prone position, and that the risk was additionally heightened by the
plaintiff's history of sleep apnea.
An oxygen-measuring valve had been placed on the plaintiff's finger.
The defendant anesthesiologist contended that he properly monitored the
patient and maintained that he reasonably believed that the changing signs
were merely indicative of the "motion artifact" which occurred
because the plaintiff's hand had been moving during the procedure.
The defendant also contended that the plaintiff may well have experienced
a central neuraxial blockade, which is a phenomenon that occurs with epidural
anesthesia on rare occasions and which can cause cardiac arrest for unknown reasons.
The plaintiff countered that the plaintiff had been wearing the device
on his finger during the entire 90 minute procedure and that the vital
signs had decreased dramatically on only one occasion, denying that the
defendant's position should be accepted. The plaintiff would have
also argued that since the arrest occurred after the vital signs had been
depressed for approximately five minutes, the defendant's position
as to this rare complication should be rejected.
The plaintiff further further maintained that shortly before he suffered
respiratory difficulties, the defendant anesthesiologist, with whom he
had met prior to the procedure, had been replaced with an associate. The
plaintiff elicited testimony during the deposition testimony of this associate
that he may have been arranging his instruments at the time the vital
signs changed. The plaintiff maintained that this factor lent additional
support to the plaintiff's position that adequate monitoring had not
been provided. The plaintiff also contended that although the anesthesiologist
with whom he met was an attending physician, that he was advised that
the informed consent form so reflected and maintained that the hospital
should be vicariously liable on an apparent agency theory.
The plaintiff maintained that when he suffered the respiratory arrest,
a code was called and that although the plaintiff was revived, he sustained
anoxic encephalopathy with significant injury to the brain, resulting
in the plaintiff being comatose for nine days and spending the next seven
months in various rehabilitation facilities. The plaintiff contended that
he has very limited short-term memory and has great difficulties interacting
with his wife and children, remembering people that he recently met, and
assistance with the activities of daily living.
The plaintiff also maintained that it was ultimately deemed to be permanently
disabled due to his continued significant deficits in short-term memory
and language/communication skills and the plaintiff would have pursued
very significant future income claims. The plaintiff's wife has been
appointed his legal guradian.
The case settled prior to trial for $1,900,000 and a waiver of the $800,000
Plaintiff's anesthesiologist: Sheldon Deluty from Englewood, New Jersey;
Plaintiff's physiatrist: Caroline McCagg from New Brunswick, New Jersey;
Plaintiff's life care plan expert: Jane Mattson, R.N. from Stanford,
Connecticut and Plaintiff's economist: M. Marcus from Scotch Plains,
T.H., August, 2006.
Attorney for plaintiff: Charles A. Cerussi of Law Offices of Charles A.
Cerussi of Red Bank, New Jersey and Manhattan.
The defendant anesthesiologist had taken the position in discovery that
the brain injury probably was the result of a rare, but recognized, complication
of epidural anesthesia known as a central neuraxial blockade, which can
cause cardiac arrest for unknown reasons. The defendant argued that the
depression of the vital signs during the several minute period preceding
the arrest was merely a motion artifact that occurred because the hand
on which the oxygen measuring valve was attached was moving during the
procedure. The plaintiff would have undermined the defendant's arguments
regarding such a potential motion artifact by arguing that the jury should
consider that the valve was on his finger during the entire 90 minute
procedure and that the only time the vital signs became depressed was
immediately before the respiratory arrest. Additionally, the plaintiff
argued that in view of the sudden drop in vital signs, it was clear that
the cause of the code was the failure of the physician to adequately monitor
the patient and not some very rare complication of epidural anesthesia.
In this regard, the plaintiff would have further undermined the defendant's
case by emphasizing that the drop in vital signs occurred at about the
same time the second anesthesiologist took over the case. The plaintiff
would have stressed that his phsician's depositon testimony reflected
that he may have been arranging his instruments at the time the vital
signs changed, arguing that his lent additional support to the plaintiff's
position that inadequate monitoring of the patient caused the injury.
The plaintiff was employed as a CFO by the co-defendant hospital, which
asserted an $800,000 medical lien. The plaintiff named this hospital as
a defendant on an apparent agency theory, arguing that since the first
anesthesiologist was introduced to him as the hospital's Chief of
Anesthesiology, and since the informed consent form reflected that the
anethesiology would be provided by the hospital, such apparent agency
existed. The plaintiff stressed that his job duties were concentrated
in a different division of the hospital. It should be noted that in settlement,
the hospital waived its entire medical lien of $800,000. It should be
further noted the remainder of the recovery was paid on behalf of the
second defendant anesthesiologist who took over from the first physician
shortly before the drop in vital signs. Finally, this defendant physician
had a $2,000,000 MIXX policy. The plaintiff had rejected a $1,000,000
offer, which was made in summer of 2005 and during a period in which this
carrier with solvency issues universally refused to make an offer in excess
of $1,000,000. The plaintiff had rejected this offer and this aspect settled
shortly before trial in August 2006.
Products Liability - Steamer Injures Plaintiff
This was an action involving a then 34 year-old plaintiff, who was the
managing chef for a company providing food services to the defendant private
school, in which the plaintiff contended that after he arrived at approximately
5:30 a.m. and turned on a cooking steamer manufactured by the defendant
and properly permitted it to warm up for approximately 20 minutes, a large
amount of steam spewed out of the unit, scalding him on the foot and ankle,
causing second and third degree burns and the onset of RSD. The plaintiff
contended that the defendant private school negligently failed to properly
maintain the boiler over an expended period of time, resulting in the
excessive build-up of "scale" that prevented the water from
the previous day to properly drain. The plaintiff also contended that
the boiler was defectively designed and should have incorporated a system
that would channel excess water out of the boiler when the water level
probe sensed a dangerous build-up. The plaintiff maintained that because
of the RSD, he required some 24 epidural injections performed under anesthesia
which only provided temporary relief. The plaintiff then underwent the
implantation of a spinal cord stimulator and the plaintiff contended that
he will nonetheless suffer extensive pain permanently despite some relief
afforded by the stimulator.
The equipment in question consisted a boiler that was situated under two
cooking cavities which resembled microwave ovens. The plaintiff established
that the defendant school had the duty to periodically clean out the boilers.
The plaintiff maintained that as the water produced steam, minerals in
the water would build up and that such "scale" would ultimately
clog the boiler's drain. The plaintiff related that as was his custom,
he arrived at work before the other workers and when he arrived at approximately
5:30 a.m., he turned on the boiler to warm it up. The plaintiff related
that he then went about other duties and that approximately 20 minutes
later, approximately five gallons of hot steam and water spewed from the
device, scalding his foot and ankle. The plaintiff related that he crawled
a short distance, placed his foot in a bucket of ice and that a short
time later, another worker arrived and brought him to the emergency room.
The plaintiff's expert engineer contended that the boiler must be maintained
according to a prescribed schedule to avoid the dangerous build-up scale.
The expert related that several years earlier, the device malfunctioned
and that it was determined at that time that the malfunction was caused
by a build-up of scale. The plaintiff also established that because of
more operational difficulties defendant private school had ordered replacement
parts which were available be picked up several weeks earlier. The plaintiff
contended that the defendant failed to do so and that this failure led
to the accident on the day in question. The defendant school denied that
build up of scale in the boilers situated under the cooking cavities was
the cause of the incident and maintained that it was occasioned by the
negligent failure of the co-employees to properly clean the cavities themselves
the evening before. The defendant school established that the food services
company was responsible for cleaning these upper cavities. The plaintiff
countered that when the co-worker arrived approximately 20 minutes after
the accident, the co-worker's husband who took him to the hospital,
observed water spilling down the front of the boiler. The plaintiff contended
that if the defendant school's theory was accurate, there would not
have been a sufficient amount of water to continue trickling for such
an extended period and that the defendant's position should be rejected.
The plaintiff also contended that the boiler was defectively designed and
that the co-defendant manufacturer should have incorporated an additional
manner of channeling build-up through a piping system to prevent such
an incident occurring upon the foreseeable build-up of pressure.
The defendant manufacturer contended that the boiler was properly designed
and complied with all standards. The plaintiff countered that it was highly
foreseeable that a user such as a private school would not provide the
necessary maintenance and that the manufacturer should have provided for
such an eventuality.
The plaintiff sustained second and third degree burns to the foot and ankle
for which he received out-patient treatment after an initial emergency
room visit. The plaintiff returned to work eleven days after the accident.
The plaintiff maintained that over the course of the next few months,
he developed severe burning pain and color and temperature changes as
well as an intermittent loss of hair in the affected areas. The plaintiff's
physicians would relate that the plaintiff underwent some 24 epidural
injections that were administered under anesthesia, but that the injections
provided temporary relief only.
The evidence disclosed that the plaintiff then underwent surgery in which
a spinal cord stimulator was inserted. The plaintiff related that prior
to this surgery, he would characterize his pain as an 8 out of 10 and
that it has now improved to a 4 out of 10. The plaintiff contended that
this level of pain nonethless is severe and that the jury should consider
that he will continue to suffer it for the remainder of a lengthy life
The defendant denied that the plaintiff suffered RSD and the defendant's
physicians maintained that the objective signs claimed by the plaintiff
were not observable during their exams. The plaintiff countered that such
signs are often intermittent in nature and that in view of the findings
of some nine plaintiff treating physicians who observed such signs, the
defendant's position should be rejected. The plaintiff also contended
that he will be permanently precluded from working in a physical capacity
and will be relegated to much more sedentary work, suffering a future
diminution in earning capacity. The plaintiff settled with the manufacturer
some months prior to trial for $600,000.
The evidence disclosed that approximately eight months after the accident
and before any litigation was brought, the defendant school had disposed
of the boiler in question. The plaintiff argued that such disposal constituted
spoliation of evidence, which rendered it much more difficult to reconstruct
the cause of the accident and because of such a factor, the defendant
school should not be permitted to pursue its cross-claim against the settling
manufacturer, which could entitle it to a credit because of the prior
settlement. The school denied that the plaintiff's position should
be accepted, pointed out that it replaced the boiler before any litigation
was brought and denied that it shouuld be precluded. The plaintiff countered
that the school was aware that the plaintiff was out of work on disability
because of the accident and the school had retained counsel and that the
school was clearly on notice that litigation was probable and should have
retained the boiler.
The case against the private school settled before any judicial ruling
on whether the school would be precluded from pursuing a cross-claim agains
the manufacturer for $1,800,000, yielding a total recovery of $2,400,000.
A.C. vs. Pennington School, et al. Docket No.: MON-L-1005-98; Judge Robert Feldman, March 2001.
Attorney for plaintiff: Charles A. Cerussi of Red Bank, NJ and Manhattan.
The plaintiff initially settled with the manufacturer for $600,000 some
time following the close of discovery and the major claim against the
manufacturer was that it failed to provide an alternative method of discharging
the boiler in the foreseeable event that the purchaser, such as a private
school, failed to follow the required maintenance schedule. The plaintiff's
primary focus in the case was the failure of the defendant school to properly
maintain the boiler to prevent the build-up of scale that led to the incident.
The evidence disclosed that the defendant school disposed of the boiler
some eight months after the accident and prior to the bringing of any
litigation. It is interesting to note that the plaintiff moved in limine
for an order precluding the school from assessing liability against the
settling defendant and, therefore, obtain a credit. In this regard, the
school had argued that in view of the fact that the boiler was disposed
of eight months after the accident before any litigation was brought and
that the plaintiff's contentions should clearly be rejected. The plaintiff
countered that the school was aware of the accident and that the plaintiff's
contentions should clearly be rejected. The plaintiff countered that the
school was aware of the accident and that the plaintiff, who was not its
employee, was out on disability and should have known that litigation
was possible. Furthermore, the plaintiff argued that the ability to reconstruct
the accident was hampered by the absence of the boiler and that since
a plaintiff bringing a products liability action in which the product
in question was disposed would be subject to such sanctions upon a finding
of spoliation of the evidence, the school should be subject to the same
preclusion. It should be noted that the case settled before any judicial
resolution on this issue.
Regarding damages, the plaintiff, who returned to work eleven days after
suffering second and third degree burns on his foot and ankle, maintained
that he developed severe RSD and would have argued that the jury should
consider that he will suffer severe pain and difficulties for a lengthy
life expectancy. In this regard, the defense had questioned the existence
of the condition, contending that the signs such as color and temperature
changes and hair loss discussed as objective signs by some nine treating
physicians were not observed by the seven physicians examining the plaintiff
on behalf of the defendants. The physicians testifying for the plaintiff
would have emphasized that such signs are often intermittent in nature
and that in view of this factor and the evidence of some 24 epidural injections
followed by the surgical implantation of a spinal cord stimulator, it
was abundantly clear that the initial burn injuries had, in fact, developed
into the debilitating RSD condition.
Motor Vehicle case
This was an action which involved a male plaintiff department store security
guard, age 26 at the time, who contended that he sustained severe shoulder
injuries when he was sideswiped by a car that was fleeing after a shoplifting
incident and his non-dominant arm was caught on the side view mirror and
pulled violently. The issue of liability was stipulated. There was a dispute
between the driver's carrier and the plaintiff's UM/UIM carrier
as to whether the accident was covered under the driver's policy and
a Declaratory Judgment action was scheduled to be tried to a jury. The
Court held that the damages would be tried before this Declaratory Judgment
action and the jury was only advised that the plaintiff was struck by
a car, that his arm was pulled in the incident and that he was not at
fault. The jury was not aware of the shoplifting incident prior to rendering
the damages verdict. the plaintiff contended that he suffered both a dislocated
shoulder and a scapulo-thoracic disassociation involving a tear of the
ligaments between the shoulder blade and the rib cage. The plaintiff contended
that he will suffer permanent pain and restriction and because of the
injuries, will be unable to achieve his dream of becoming a police officer.
The plaintiff contended that he suffered extensive pain in the accident.
The plaintiff's orthopedist related that the plaintiff had, in fact,
essentially suffered two separate injuries. The physician related that
the first was a sholder dislocation wihich was treated with an open procedure
in which the torn ligaments were repaired and tightened. The second injury
involved the separation of the scapula from the rib cage. The plaintiff's
orthopedist contended, however, the surgery for this scapulo-thoracic
disassociation would be high risk and was contraindicated. The expert
maintained that because the scapula is very thin and the ribs relatively
thin as well, and with such small amounts of bone wo work with, the procedure
would be very risky in the plaintiff's case. The physician also contended
that the lungs are in close proximity to the area, that there is danger
that the hardware needed for such a fusion would puncture the lungs, further
rendering it contraindicated. The physician indicated that even if otherwise
successful, a fusion would create very extensive limitation of motion.
The plaintiff contended that in order to minimize the risk of recurrent
dislocations, which are very painful, the plaintiff will be required to
avoid strenuous activity which requires him to elevate the arm above the
parallel level of his body and will be so restricted for the remainder
of a very lengthy life expectancy. The plaitniff related that during the
first 1.5 year period following the incident, he suffered 4-5 such extremely
painful dislocation episodes in which re required emergency room care
and that because he has been careful to refrain from sudden movements,
he has been able to avoid a recurrence over the past several years. The
defendants' physician's report essentially concurred with the
plaintiff's expert's conclusions and the plaitniff's expert
testified that he had read the defense expert's report and partially
based his conclusions on it.
The plaintiff contended that he had always been a very physically active
individual and enjoyed sports such as recquetball and golf. The plaintiff
contended that he has been forced to lead a much more sedentary life and
avoids lifting his non-dominant arm to an overhead cupboard because of
this risk. The plaintiff also contended that he had aspired to become
a police officer. The plaintiff maintained that he can no longer realize
this dream because of the injuries. The plaintiff, who made no income
claims, contended that the jury should consider this inability to pursue
his goal on the issue of loss of enjoyment of life. The plaintiff related
that he has obtained a full-time job as an ambulance deiver and a part-time
job as a police dispatcher 24 hours per week. the plaintiff related that
because of special equipment and an EMT who works with him, he has been
able to work without being required to exert himself lifting patients
The defendants contended that it is clear that the plaintiff is livign
a full life depsite the injuries. The plaintiff countered that in view
of the undisputed nature of the injuries, it is clear that the plaintiff's
determination to live as active a life as possible reflected a stoic individual
and was not inconsistent with the plaintiff's contentions that he
will suffer pain and extensive limitations for remainder of a lengthy,
51 year life expectancy. The plaintiff was not marrier at the time of
the accident and is currently engaged.
The jury awarded $2,250,000 for pain and suffering, $34,000 for past medical
expenses and $17,000 for past wages which are subject to the worker's
comp lien. The defendant driver had a $100,000 policy which was tendered
pending the outcome of the declaratory judgment action and the plaintiff
had a UM/UIM policy of $300,000. The case settled for $300,000 with the
driver paying $75,000 and the UM/UIM carrier paying $225,000 prior to
the commencement of the Declaratory Judgment aspect.
Plaintiff's orthopedist: Clint Ferencz from Sea Girt.
M.G. vs. Quandt, et al. Docket No.: MON-L-1085-97; Judge Robert Feldman, December 7, 1999.
Attorney for plaintiff: Charles A. Cerussi of Giordano, Halleran &
Ciesla in Middletown.
The jury assessed a very large damages award notwithstanding the evidence
that despite the should injuries, the plaintiff has been able to lead
a very active life and works part-time as a police dispatcher in addition
to his full-time job as an ambulance driver. The plaintiff argued that
since the surgery to treat the scapulo-thoracic dislocation is contraindicated,
the plaintiff will be required to live his life in a very restricted manner
and refrain from lifting his arm above the shoulder level in that the
restriction in the use of the arm is very extensive. It should be noted
that the defense examining orthopedist, who was not presented, had essentially
concurred with the findings of the plaintiff's orthopedist and the
plaintiff had supplied his orthopedist with the defendant's expert's
report frm which the plaintiff's expert indicated that he partially
relied on, and the plaintiff argued during summation that his contentions
that he will suffer such severe restriction for the remainder of a 51
year life expectancy were undisputed. In this regard, the plaintiff argued
that jury should consider that the detailed description of restrictions
in everyday activities such as simply reaching for a cup or dish in an
overhead shelf, or in making any sudden movement with the arm, were so
dramatic that impact of the injury was almost the same as an amputation.
Additionally, the plaintiff argued that in view of the undisputed nature
of the medical evidence, it was clear that the ability of the plaintiff
to nonetheless lead an active life reflected an individual who was stoic
and would not permit the injuries to have a greater affect on his life
than absolutely necessary.
Finally, with respect to damages, it should be noted that the trial was
on damages only and the jury was not aware that the plaintiff security
guard suffered the injury when the defendant driver attempted to flee
in his car after allegedly shoplifting at the store at which the plaintiff
had worked. Regarding liability, it was undisputed that the incident occurred
when the plaintiff's arm was struck by the sideview mirror and pulled
as he was attempting to apprehend the driver and liability had been stipulated.
The defendant's carrier had taken the position that the actions were
intentional and tat the injury was not, therefore, covered. The plaintiff's
UM/UIM carrier had countered that the defendant's automobile policy
would cover the unintentional consequences of an intentional act and the
case settled prior to the scheduled Declaratory Judgment action for the
total $300,000 of the UM/UIM coverage, with the defendant's carrier
paying $75,000 of a $100,000 policy.
Minor child broke both of his ankles when he came out of an amusement park ride
structured settlement on behalf of a minor child who broke both of his
ankles when he came out of an amusement park ride called “Psycho
Swing” while he was a patron at the defendant’s amusement
park. This structured settlement is based upon monies that the child will
receive if he lives a normal statistical life expectancy, the actual payout
could be greater or less depending upon the actual life span of our client.
44 year old husband of four girls when he passed out in a deli one morning before work.
settlement for a 44 year old husband of four girls when he passed out in
a deli one morning before work. He was emergently taken to a Suffolk County
Hospital, where the hospital failed to timely diagnose a hemorrhage. The
case was litigated against the hospital and a neurologist who failed to
timely initiate TPA (a clot busting medication) and against an internist
who tried to manage our client over the phone. This internist mismanaged
our client's blood pressure causing, it was alleged, a worsened stroke
outcome. Our client was deprived the opportunity to receive TPA, and further
that the mismanagement of our client's blood pressure led to a worsened
stroke outcome. The case was settled at the start of jury selection.