Verdicts & Settlements

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Delayed Treatment led to Plaintiff's Brain Damage - $7,173,274.00

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 netted $7,173,273.38.

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 - $3,250,000.00

A $3,250,000.00 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 - $3,225,000.00

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.

REFERENCE

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.

COMMENTARY

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 - $3,000,000.00

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.

COMMENTARY:

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.

REFERENCE

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. - $3,000,000.00

A $3,000,000.00 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.

Medical Malpractice - $2,700,000.00

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 medical lien.

REFERENCE:

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, New Jersey.

T.H., August, 2006.

Attorney for plaintiff: Charles A. Cerussi of Law Offices of Charles A. Cerussi of Red Bank, New Jersey and Manhattan.

COMMENTARY:

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 - $2,400,000.00

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 expectancy.

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.

REFERENCE:

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.

COMMENTARY:

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 - $2,301,000.00

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 or equipment.

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.

REFERENCE:

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.

COMMENTARY:

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.

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