Learning Center
Plans & pricing Sign in
Sign Out

NY SEPT sample vp


                               $32,000,000 VERDICT – Product Liabilty – Asbestos Exposure – Sailor sues manufacturer after contracting
                               mesothelioma from ship parts – Pleural mesothelioma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
                               $19,550,157 VERDICT – Product Liability – Asbestos Expsoure – Carpenter contracts testicular cancer after
                               asbestos exposure – Tunica vaginalis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Volume 28, Issue 9
September 2011
                               $9,185,000 VERDICT – Motor Vehicle Negligence – Auto/Bicycle Collision – Cab driver opens parked cab
                               door into plaintiff bicyclist and knocks him to ground – Low riding bus then strikes and drags plaintiff with leg caught in
                               tire – Plaintiff requires extrication by firefighters – Severe degloving injury to leg and testicle – Skin graft surgeries . . 4
A monthly review of New        $5,000,000 RECOVERY – Civil Rights – Wrongful Death – Parents of autistic boy sue in state and federal
York State and Federal         court after aid worker at state facility for the disabled kills him . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Civil Jury Verdicts with
professional analysis and      $1,500,000 RECOVERY – Labor Law Sec. 240 – Temporary wooden floor collapses during major renovation
The New York cases
                               project – Plaintiff laborer falls 15 feet – Internal derangement of knee – ACL rupture – Five knee surgeries – Anal
summarized in detail           abscess – Fistulectomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
herein are obtained from
an ongoing monthly survey      $1,250,000 VERDICT – Medical Malpractice – Surgery – Failure to inspect for bowel damage during
of the State and Federal       gallbladder procedure – Failure to diagnose damage for 32 hours – Sepsis – Multiple surgeries – Extended ICU stay. . 7
courts in the State of New
York.                          $975,000 RECOVERY – Bus Negligence – Pedestrian is struck byleft-turning bus from behind – Subdural
                               hematoma – Loss of smell and taste – Mild TBI – Memory and concentration deficits – Multiple rib fractures. . . . . . . 8
                               DEFENDANT’S VERDICT – Excessive Use of Force – Ex-cop sues for excessive force in arrest during landlord-
                               tenant dispute – Pain and suffering damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

  VERDICTS BY                 Professional Malpractice (4)                                                   Multiple Vehicle Collision. . . . . 16
  CATEGORY                         Ob/Gyn . . . . . . . . . . . . . . 9                                      Rear End Collision . . . . . . . . 17
                                   Orthopedics . . . . . . . . . . . 10                                      Stopped Vehicle Collision . . . . 19
                                   Surgery . . . . . . . . . . . . . 10
                                                                                                     Premises Liability (4)
                              Construction Negligence (1) . . . . . 11                                    Fall Down . . . . . . . . . . . . 19
                                                                                                          Hazardous Premises . . . . . . . 20
                              Contract (2) . . . . . . . . . . . . . . 12
                                                                                                     Property Owner Liability (1) . . . . . 21
                              Employer’s Liability (1) . . . . . . . . 13
                                                                                                     Transit Authority Liability (1) . . . . . 22
                              Fraud (1) . . . . . . . . . . . . . . . 13
                                                                                                     Supplemental Verdict Digest . . . . 23
                              Labor Law (1) . . . . . . . . . . . . . 14

                              Motor Vehicle Negligence (9)
                                   Intersection Collision . . . . . . . 15
                                   Left Turn Collision . . . . . . . . 16

Copyright 2011 Jury Verdict Review Publications Inc.
                                                                                                                    Subscribe Now

                   Summaries with Trial Analysis
New York County, NY                                            pling and related matters. The defendants asserted
In this matter, a U.S. Navy veteran sued the                   that the plaintiff’s exposure was the fault of an uniden-
equipment manufacturers whose asbestos-laded                   tified party and their products. They further faulted the
equipment he was exposed to while he was a                     U.S. Navy for the plaintiff’s exposure. Judge Madden
sailor in the 1960s and 1970s. The plaintiff now               did not permit this question to be added to the
suffers from pleural mesothelioma, a form of                   verdict sheet.
cancer often linked to asbestos exposure. The
defendants denied the subject material caused the              After the conclusion of a nine week trial, the jury de-
disease.                                                       liberated for an hour and a-half before returning a
                                                               verdict for the plaintiff. The jury awarded $32 million,
Ronald D. served on seven U.S. Navy vessels between            including $16 million for past pain and suffering and
1960 and 1977. In that time, the plaintiff served as a         another $16 million for future pain and suffering. The
fireman, boiler tender, and eventually a Master Chief          jury apportioned 99% responsibility to Crane and 1%
Petty Officer, performing the first two roles on each of       to Elliot.
the seven vessels. The duties of those positions in-
cluded the repair of Crane Co.-manufactured valves             REFERENCE
and Elliot Turbomachinery Co., Inc.-manufactured
                                                               Plaintiff’s Causation expert: Jacqueline Moline from
de-aerating feed tanks. Both of these activities in-
                                                               New York, NY. Plaintiff’s Materials expert: Richard
volved the removal of asbestos-containing gaskets
                                                               Hatfield. Plaintiff’s Public Health expert: Barry
and lagging pads.
                                                               Castelman. Defendant’s Industrial Hygiene expert:
Many years later, Ronald D. was diagnosed with pleu-           Donna Ringo from Louisville, KY. Defendant’s
ral mesothelioma, a type of cancer often linked to             Materials expert: Michael Graham. Defendant’s Navy
asbestos exposure. The plaintiff cited his exposure to         Issues experts: David Sargeant and Charles Watson.
Crane and Elliot products, as well as contact with oth-        Defendant’s State-of-the-art Evidence expert: Samuel
ers who had themselves performed the same duties,              Foreman.
as the causes of his condition.                                Ronald Dummitt and Doris Kay Dummitt vs. A.W.
The plaintiff and his wife filed suit in the Supreme           Chesterton, et al. Index no. 190459-2010; Judge
Court of New York, New York County for product liabil-         Joan Madden, 08-30-11.
ity, naming manufacturers Crane and Elliot, whose              Attorneys for plaintiffs: Jordan Fox, James Long,
asbestos-containing products he cited as the cause             Brian Belasky, Seth Dymond, and William Papain of
of his cancer, as well as A.W. Chesterton. The plaintiff       Belluck & Fox in New York, NY. Attorneys for
sought recovery for both past and future pain and              defendant Crane Co.: Jeffrey S. King and Tara
suffering.                                                     Pehush of K&L Gates, LLP in Boston, MA. Attorney for
At trial, the plaintiff brought expert testimony to link the   defendant: Katharine S. Perry, Esq. of Adler, Pollock
plaintiff’s mesothelioma and asbestos exposure. Testi-         & Sheehan, P.C. in Boston, MA.
fying for the plaintiff were the occupational medicine
expert Dr. Jacqueline Moline, Dr. Barry Castelman, a           COMMENTARY
public health expert, and the materials analyst                This matter was heard contemporaneously to David Konstantin and
Richard Hatfiled.                                              Ruby Konstantin vs. 630 Third Avenue Associates (190134/2010),
The defendants brought Dr. Michael Graham, who
                                                               an employer liability case involving a carpenter and asbestos-con-
testified that chrysotile asbestos does not cause me-
                                                               taining joint compound. Plaintiff’s counsel in both cases was
sothelioma. They further brought Admiral David
                                                               Belluck & Fox. No punitive damages were sought in either matter
Sargeant, who testified about Navy procedures, Cap-
                                                               due to an order in New York law which has indefinitely deferred all
tain Charles Watson, who testified about Navy issues
                                                               asbestos verdicts containing punitive damages. Chrysotile (“white”)
and Elliots products, Dr. Samuel Foreman, who testi-
                                                               asbestos is the most common form of naturally occurring asbestos,
fied regarding state-of-the-art evidence, and Donna
                                                               and accounts for 95% of the substance’s use in the United States.
Ringo, an industrial hygienist who testified on air sam-

         Reproduction in any form without the express permission of the publisher is strictly prohibited by law.

                                                                                                  Subscribe Now
Volume 28, Issue 9, September 2011
SUMMARIES WITH TRIAL ANALYSIS                                                                                               3

                                                $19,550,157 VERDICT – PRODUCT LIABILITY –
                                                ASBESTOS EXPOSURE – CARPENTER CONTRACTS
                                                TESTICULAR CANCER AFTER ASBESTOS EXPOSURE –
Founder                                         TUNICA VAGINALIS.
   Ira J. Zarin, Esq.
Editor in Chief                             New York County, NY
   Jed M. Zarin
                                            In this labor law action, a carpenter sued for a case of testicular
ContributingEditors                         cancer contracted after working with asbestos in the 1970s. The
   Brian M. Kessler, Esq.                   many commercial defendants attributed to the asbestos poisoning
   Michael Bagen                            variously denied involvement and/or the causation of the condition.
   Laine Harmon, Esq.
   Cristina N. Hyde                         The plaintiff in this matter, David K., was a carpenter on both the 622
   Deborah McNally, Paralegal               Third Avenue and Olympic Towers job sites between 1974 and 1977. On
   Ruth B. Neely, Paralegal                 those occasions several asbestos-containing joint compounds were ap-
   Cathy Schlecter-Harvey, Esq.             plied and sanded down in his presence, allegedly resulting in exposure
   Julie L. Singer, Esq.
                                            to particulate matter and dust containing asbestos. The plaintiff asserted
   Tammy A. Smith, Esq.
   Kate Turnbow
                                            that this exposure resulted in his tunica vaginalis, a rare form of mesothe-
   Susan Winkler                            lioma affecting the tissue surrounding the testicles.
 Business Development                       David and Ruby K. filed suit in the Supreme Court of New York, New York
   Gary Zarin                               County for employer’s liability. The plaintiff named as the general con-                           tractor Tishman Liquidating Corporation (formerly Tishman Realty & Con-
Production Assistant                        struction, Co., Inc.), as well as 630 Third Avenue Associates, Union
   Christianne C. Mariano                   Carbide, and over 20 other contractors and subcontractors allegedly a
Assisted Search                             party to the plaintiff’s asbestos exposure. Non-economic and lost wages
   Tim Mathieson                            damages were sought for a violation of the New York Labor Law’s require-
Court Data Coordinator                      ment for safe workplace conditions. Settlement negotiations were
   Jeffrey S. Zarin                         confidential.
Customer Services
   Meredith Whelan                          At the nine week trial, the plaintiff argued that the negligent use of asbes-                       tos-containing joint compounds applied and sanded by defendant par-
Circulation Manager                         ties resulted in the exposure which caused his cancer. Expert testimony
   Ellen Loren                              was heard from a materials expert and a forensic pathologist.
Proofreader                                 The defendants presented three theories of defense, being that 1) they
   Cathryn Peyton
                                            were not the right company, 2) the plaintiffs could not prove that there
Web Development &                           was asbestos in the joint compound, and 3) that the plaintiff’s condition
   Juris Design
                                            was not caused by asbestos. The defendants brought Michael Sirosky, a                      Boston neurologist who testified that the plaintiff’s testicular mesothelioma
                                            was not caused by asbestos.
Published by Jury Verdict Review
Publications, Inc. 45 Springfield           The jury deliberated for a day and a-half before returning a $19,550,157
Avenue, Springfield, NJ 07081
                                            verdict for the plaintiff, including $7 million for past pain and suffering
                                            and $12 million for future pain and suffering. The jury found Tishman Liqui-
Main Office:
                                            dating Corporation 76% liable for the plaintiff’s damages, with each of
973/376-9002 Fax 973/376-1775
                                            the three joint compound manufacturers, Kaiser Gypsum, U.S. Gypsum
Circulation & Billing Department:
                                            and Georgia Pacific, found 8% liable.
New York Jury Verdict Review &
Analysis is a trademark of Jury Verdict     REFERENCE
Review Publications, Inc.                   Plaintiff’s economics expert: Lawrence Spizman from Oswego, NY.
Reproduction in any form with out the       Plaintiff’s forensic pathology expert: James Strauchen from New York,
expresswritten permission of the            NY. Plaintiff’s materials expertS: Barry Castelman from New York, NY,
publisher is strictly prohibited by law.
                                            and Richard Hatfield from New York, NY. Plaintiff’s occupational
New York Jury Verdict Review &
Analysis (ISSN 8750-8044) is
                                            medicine expert: Stephen Markowitz from New York, NY. Defendant’s
published monthly at the subscription       neurology expert: Michael Sirosky from Boston, MA.
rate of $345/year by Jury Verdict           David Konstantin and Ruby Konstantin vs. 630 Third Avenue Associates, et
Review Publications, Inc., 45 Springfield
Avenue, Springfield, NJ 07081.              al. Index no. 190134/2010; Judge Joan Madden, 08-17-11.
Periodical postage paid at Springfield,     Attorneys for plaintiffs: Jordan Fox, James Long, Brian Belasky, Seth
NJ and at additional mailing offices.
                                            Dymond, and William Papain of Belluck & Fox in New York, NY.
Postmaster: Send address changes to:
New York Jury Verdict Review & Analysis,    Attorneys for defendant: Frank Friedstedt, Esq. and Kerryann Cook, Esq.
45 Springfield Avenue, Springfield, NJ      of McGivney & Kluger in New York, NY.

                                                                    Subscribe Now
                                                                                          New York Jury Verdict Review & Analysis
4                                                                                       SUMMARIES WITH TRIAL ANALYSIS

COMMENTARY                                                                Belluck & Fox. As previously noted, no punitive damages were
This matter was the one heard contemporaneously to a second as-           sought in either matter due to an order in New York law which has
bestos trial. That case, Dummitt vs. A.W. Chesterton (190459-             indefinitely deferred all asbestos verdicts containing punitive
2010), resulted in a $32 million plaintiff verdict on a product liabil-   damages.
ity action as reported above. Plaintiff’s counsel in both cases was

New York County, NY                                                       injuries to the plaintiff. The bus driver contended that
The plaintiff bicyclist, 39 years old at the time of                      he was concentrating on the traffic to his left and that
the accident, contended that the defendant cab                            he was not negligent because he was in his lane. The
driver negligently failed to make observations                            bus driver also contended that it was not foreseeable
before opening the driver’s side door of his                              that the bicyclist would fall or be hit by the cab’s door
parked cab on the traffic side into plaintiff,                            and caused to fall close to the line dividing the traffic
knocking the plaintiff to the roadway. The plaintiff                      from the parking lane. The bus driver further main-
also contended that the defendant driver of a low                         tained that the plaintiff’s injuries were caused entirely
riding hybrid bus, who also failed to make                                by the negligence of the cab driver.
observations, went over him and his bike causing
his leg to be jammed up against the tire of the                           The plaintiff maintained that he suffered extensive
bus. The plaintiff contended that despite the fact                        degloving injuries of the left leg from knee to his hip
that the plaintiff’s companion ran alongside the                          and of his left testicle. The plaintiff also sustained frac-
bus shouting, the bus continued moving while the                          tures of his pelvis and right ankle. The plaintiff was an
plaintiff’s leg was pinned by the tire and his torso                      in-patient from the time of the June 19, 2006 incident
under the bus. The plaintiff sought damages for                           until August 3, 2006. He underwent some five surger-
his resultant skin graft surgeries and delicate                           ies, including extensive repair of his leg and testicle
friable skin condition thereafter.                                        and large skin grafting procedure. He also underwent
                                                                          intensive physical and occupational therapy in the
At trial, the plaintiff maintained that as he riding his
                                                                          hospital to relearn how to walk and perform activities
bike on the east side of 10th Avenue, the cab driver
                                                                          of daily living. The plaintiff required visiting nurse ser-
who was parked on the east side of the avenue,
                                                                          vices at home for dressing changes and continued
opened his driver door on the traffic side into him
                                                                          physical therapy at home followed by ambulatory
knocking him off his bike to the ground in violation of
                                                                          care at the hospital for treatment by dermatologists,
a New York City regulation. The plaintiff contended
                                                                          orthopedists and plastic surgeons for two years.
that the defendant bus driver negligently failed to
keep the plaintiff in his view and traveled too close to                  The plaintiff contended that the extensive leg scar-
the parking line and the plaintiff. The bus went over                     ring, disfigurement, abnormal skin condition and lack
the plaintiff, trapping him under the bus, pinned by                      of sensation are permanent. The plaintiff also main-
the front right wheel.                                                    tained that he permanently suffers some difficulty with
                                                                          urination because of scar tissue pulling on the testi-
The plaintiff maintained that although his companion
                                                                          cle. The plaintiff also related that because of the loss
ran alongside the bus yelling for the driver to stop and
                                                                          of fat on the affected portion of the leg, the skin is di-
pounded on the window by the front doors, the bus
                                                                          rectly on muscle and does not slide. The plaintiff con-
driver failed to realize that the plaintiff was being
                                                                          tended that the loss of this fat cushion and the nature
pushed by the wheel of the bus, continuing for ap-
                                                                          of the grafted skin have caused his skin to become
proximately one-third of a block. The plaintiff con-
                                                                          very friable and subject to cracking and bleeding.
tended that finally, the waving of arms and shouting
                                                                          The plaintiff maintained that he will permanently be
of others in front of him caused the driver of the bus
                                                                          subject to such injuries, and although he attempts to
to stop. The plaintiff was extricated by FDNY who had
                                                                          engage in some of his prior activities, he will perma-
to jack up the bus and the plaintiff was then taken to
                                                                          nently be precluded from jogging and biking which
the hospital.
                                                                          he greatly enjoyed. The plaintiff also contended that
The defendant cab driver denied opening the cab                           he will permanently be required to avoid exposing
door into the plaintiff and maintained that the plaintiff                 the leg to sunlight.
fell on his own. The plaintiff countered that eyewitness
                                                                          The jury found the bus driver 70% negligent, the cab
testimony supported the plaintiff’s position. The cab
                                                                          driver 30% negligent and declined to assess any
driver also contended that the bus driver caused the
                                                                          comparative negligence against the plaintiff. They

                                                                                                            Subscribe Now
Volume 28, Issue 9, September 2011
SUMMARIES WITH TRIAL ANALYSIS                                                                                                            5

then awarded $9,185,000, including $6,000,000 for                     even though the plaintiff’s friend ran alongside the bus and
past pain and suffering and $3,185,000 for future                     pounded on the window by the front doors, and that the bus driver
pain and suffering.                                                   finally stopped because others on were waving arms and shouting
                                                                      of in front of him, heightened the jury response. Further, the evi-
REFERENCE                                                             dence that the plaintiff was required to be extricated by firefighters
Plaintiff’s accident reconstruction expert: Robert Frein              who had to jack up the bus was also undoubtedly significant.
from Westbury, NY. Plaintiff’s orthopedic surgeon                     Moreover, the photographs of the leg at various stages of his recov-
expert: Vincent Fietti, MD from New York, NY.                         ery, and the jury’s observations of the severe disfigurement and
                                                                      scarring that remains was thought to also have a strong impact. Fi-
Cropper vs. Stewart, et al. Index no. 1148778/06;
                                                                      nally, the plaintiff emphasized that because of the virtual absence
Judge Donna Mills, 08-11-11.
                                                                      of cushioning fat and the nature of the grafted skin, he will perma-
Attorney for plaintiff: Walter G. Alton, Jr. of W.                    nently suffer very friable skin that is vulnerable to cracking, that he
Alton., Jr. & Associates, PC in New York, NY.                         must avoid sunlight, and that he must lead a much more sedentary
The jury award clearly reflected the highly traumatic and unusual
nature of the incident. In this regard, the evidence that the bus
driver was not aware that the plaintiff was being pushed by the bus

Albany County, NY                                                     REFERENCE
In this matter, the family sued in both state and                     Michael and Lisa Carey vs. David M. Slingerland,
federal court over the wrongful death of their                        Katherine Bishop, Karen Sleight, Cathy Labarge, Ann
autistic son while in state care.                                     Marie Petersen, Jennifer Hoerup, Eloise Potenza, Dave
Jonathan C., 13, was autistic. At the time of his death               Iacavitti, Petra Hamilton, Tim Murphy, Edwin Tirado,
on February 15, 2007, Jonathan was being cared for                    Nadeem Mall and John and Jane Does 1-20. Index
at OD Heck, a New York State facility for the disabled                no. 1:2009cv00163; Magistrate Randolph F. Treece,
located near Albany, New York. On the date of his                     09-21-11.
death, Jonathan was in a van on a community out-                      Attorney for plaintiff: Ilann Margalit Maazel in New
ing with OD Heck developmental aides Edwin T. and                     York, NY. Attorney for defendant: Eric T.
a trainee, Nadeem M. On that date, Edwin T. asphyxi-                  Schneiderman of New York State Office of the
ated and killed Jonathan C. in the van while                          Attorney General in Albany, NY.
Nadeem M. watched. The two men then drove
around for over an hour before seeking medical at-                    COMMENTARY
tention for or checking on the deceased. The death
was ruled a homicide and the two men were con-
                                                                      Jonathan C. had previously been cared for at the privately-owned
victed, Edwin T. for manslaughter and Nadeem M. for
                                                                      Anderson School, a private facility. In 2005, the boy was taken
criminally negligent homicide.
                                                                      from Anderson following instances of abuse and brought to OD
                                                                      Heck, a state-run facility. Two months later, OD Heck was put on
The parents of the deceased, Michael and Lisa C.,                     sanction due to a host of violations, including inadequate investi-
filed wrongful death actions in state and federal                     gation of injuries of unknown cause.
court. The state case was filed in the New York Court                 Investigation of Edwin T. revealed that the aid worker had worked
of Claims against the State of New York, while a fed-                 for 197 hours in the two weeks prior to the killing: 15 days in a
eral civil rights case was filed against Edwin T.,                    row, including 14 night shifts and ten double shifts. Edwin T. had a
Nadeem M., and various individual supervisors at OD                   prior criminal record for the sale of marijuana. Nadeem M. had
Heck in the United States District Court for the Northern             been fired four times for cause from agencies serving the disabled.
District of New York. The plaintiffs sought conscious                 The incident at Anderson became the catalyst for the creation of a
pain and suffering and hedonic damages on behalf                      state law requiring that parents be given access to investigative re-
of Jonathan C. under the U.S. Code 42 U.S.C. § 1983,                  ports of alleged abuse cases involving their children. The law,
as well as punitive damages for gross negligence                      called Jonathan’s Law, passed in May, 2007, three months after
and recovery for their own individual pain and                        Jonathan’s death.
The matter was settled pretrial for $5 million.

                                                                           Subscribe Now
                                                                                                       New York Jury Verdict Review & Analysis
6                                                                            SUMMARIES WITH TRIAL ANALYSIS

Kings County, NY                                              or substantiate a future income loss claim. The plain-
This was a Labor Law Sec. 240 (1) case in which               tiff would have contended that the jury should con-
the plaintiff, a 34-year-old plumber’s assistant,             sider that he will experience significant pain and
who was working on a renovation project                       suffering for the remainder of a significant life expec-
constructing low income housing, contended that               tancy and that the disability negatively affected his
the temporary wooden floor that was used before               future earning capacity.
any wiring or plumbing or sheet rock was
installed was inadequately secured, resulting in              The case settled prior to the damages trial for
the floor failing and his falling approximately 15            $1,500,000. The third party defendant (sub-contrac-
feet. The plaintiff contended that he suffered                tor), whose case was severed at the time the plain-
severe knee injuries that required five surgeries             tiff’s motion for summary judgment on liability was
and an anal abscess that necessitated a                       granted, contributed to the settlement.
The plaintiff moved for summary judgment against
the defendants, owner and general contractor. The             Seixas vs. NYC Partnership Development Fund Co.,
defendants’ opposition to the motion included chal-           Inc., et al. Index no. 30653/06, 06-29-11.
lenging the plaintiff’s version of the accident and that      Attorney for plaintiff: Glenn Shore of G Shore, PC in
the case was not ripe for summary judgment be-                New York, NY.
cause a subcontractor was recently impleaded and
discovery as to this party was not complete. The              COMMENTARY
plaintiff countered that the plaintiff’s version of the ac-
cident was supported by his co-worker, that defen-            The defendants’ arguments, in opposition to the plaintiff’s motion
dant had named the sub-contractor significantly later         for summary judgment on liability, included the contention that
than should have been the case, that discovery was            since a subcontractor it impleaded had yet to participate in discov-
otherwise complete, and that this factor shouldn’t de-        ery, the case was not ripe for Summary Judgment. The plaintiff ar-
lay the plaintiff’s ability to obtain summary judgment.       gued that the defendants could have impleaded this subcontractor
The Court severed the third party action and granted          much earlier, that the discovery as to the other parties was com-
the plaintiff’s motion for summary judgment on July 6,        plete and that it would be fundamentally unfair to permit the de-
2010.                                                         fense to avoid a liability judgment, after which, the plaintiff would
                                                              entitled to interest dating back to the time of the summary judg-
The temporary wooden floor collapsed as the plaintiff         ment order. The court concurred, severed the third party action,
was standing and passing copper piping to his co-             and granted the plaintiff’s motion in July 2010.
worker. The plaintiff fell with the wood approximately        The plaintiff is an undocumented alien and the plaintiff could not
15 feet. He contended that he sustained severe knee           point to prior earnings to support a lost income claim. It is felt,
injuries, including internal derangement and an ACL           however, that the combination of the description of the severe knee
rupture. The plaintiff contended that he required a to-       injuries and the plaintiff’s limited education, that underscored his
tal of five surgical interventions, including two open        limitations, could well have, as a practical matter, resulted in this
knee surgeries. The plaintiff maintained that despite         factor having an impact on a jury award, notwithstanding the ab-
the surgeries, he will permanently suffer significant         sence of a specific claim for lost income. Finally, the traumatic na-
pain and a moderate limp. The plaintiff also main-            ture of the incident in which the floor literally collapsed under this
tained that he suffered an anal abscess and required          worker, resulting in his falling some 15 feet, suffering the anal ab-
a fistulectomy. This condition ultimately essentially         scess and the knee injuries, would be expected to create a strong
resolved.                                                     jury reaction.
The defendant maintained that the plaintiff is an un-
documented alien and could not have presented
admissible written proof regarding his income history

                                                                                                  Subscribe Now
Volume 28, Issue 9, September 2011
SUMMARIES WITH TRIAL ANALYSIS                                                                                                 7

Tomkins County, NY                                          The plaintiff maintained that because of the sepsis,
In this medical malpractice action, the plaintiff, in       her condition became life threatening and that she
her mid 60s, who had undergone gall bladder                 was in the ICU for an approximate two-month period.
surgery, contended that the defendant general               The plaintiff required a number of surgeries, and re-
surgeon negligently failed to conduct an                    quired a tracheostomy for a period. The plaintiff con-
inspection of portions of the bowel when the                tended that the very significant scarring is permanent
plaintiff exhibited signs and symptoms of a bowel           in nature. The plaintiff also contended that she will
laceration, including continuing severe pain and            permanently suffer pain and gastric complaints, as
decreased urine output. The plaintiff contended             well as dietary restrictions. The plaintiff made no
that as a result, she developed sepsis and                  income claims.
required an ICU stay and a number of additional
surgeries. The plaintiff further contended that she         The jury found that the defendant should have in-
should have been advised of the fact that a                 formed the plaintiff that a student was assisting, but
medical student would be assisting in the surgery.          that a reasonable patient would have nonetheless
                                                            undergone the surgery, and found for the defendant
                                                            on this issue and further found that the plaintiff was
The plaintiff contended that although the bowel is not      adequately advised of the risks of a cut to the bowel
in close proximity to the operative field, there is a       prior to the surgery. They also found that the defen-
danger, in view of the extensive length of the small in-    dant was not negligent in lacerating the bowel during
testine, that it could migrate into an area in which it     the surgery. The jury further found for the plaintiff on
was more vulnerable. The plaintiff maintained that          the issue of the failure to check the bowel for injury
precautions, including tipping or swinging the plaintiff    during the surgery and the failure to promptly diag-
on the table during the surgery to permit gravity to        nose the laceration. They then awarded $1,250,000,
keep the bowel away from the operative field, should        including $250,000 for medical bills, $250,000 for
have bene taken. The defendant maintained that              past pain and suffering and $750,000 for future pain
such precautions were taken and that the bowel in-          and suffering over 20 years.
jury none-the-less occurred in the absence of
The defendant further contended that the gall blad-         Plaintiff’s general surgeon expert: David Befeller, MD
der surgery was necessary and that a reasonable pa-         from Westfield, NJ. Defendant’s general surgeon
tient would undergo the procedure irrespective of           expert: Timothy Siegel, MD from Cooperstown, NY.
whether he/she was advised that a student was assist-
                                                            Adams vs. Cayuga Medical Center, et al. Index no.
ing. The plaintiff contended that although she
                                                            0917/09; Judge Robert C. Mulvey, 06-29-11.
needed the surgery, it was not emergent, that she
had been in the hospital for several days as of the         Attorneys for plaintiff: Peter T. Rodgers and
time of the surgery, and that if she had been so ad-        Jacqueline M. Thomas of Lacy Katzen LLP in
vised, other arrangements would have been made.             Rochester, NY.
The plaintiff’s general surgeon maintained that the
defendant should have conducted an inspection of            COMMENTARY
the bowel at the close of the surgery. The plaintiff fur-   The jury specifically found that the defendant surgeon was causally
ther contended that she suffered severe pain that           negligent in failing to check the bowel for injury before closing the
was greater than would be anticipated after the sur-        patient and causally negligent in failing to promptly diagnose the
gery, and that the continuation of this pain and other      injury when the plaintiff showed signs and symptoms, including de-
signs, including decreased urine output, should have        creased urine output. It is thought that this Tomkins County verdict
alerted the defendant to the potential that the bowel       was particularly significant, especially in view of the absence of any
had, in fact, been lacerated during the surgery. The        claim for lost wages. It is felt that the contrast between the routine
plaintiff contended that if the injury had been discov-     nature of the gall bladder surgery, and the severe nature of the in-
ered as of this time, the bowel could have been sim-        jury involving sepsis that required an approximate two month stay
ply sutured and the plaintiff would have avoided            in the ICU, clearly substantially contributed to a jury response that
sepsis.                                                     is necessary for an award of this magnitude.

                                                                 Subscribe Now
                                                                                            New York Jury Verdict Review & Analysis
8                                                                         SUMMARIES WITH TRIAL ANALYSIS

New York County, NY                                        The defendant would have argued that in view of the
The 79-year-old plaintiff pedestrian contended             plaintiff’s work as a psychoanalyst, she may well have
that as she nearly completed crossing the                  been more familiar with the testing process and that
roadway in the area the crosswalk would have               the results should be questioned. The plaintiff coun-
been if painted, she was struck by the defendant           tered that she worked only in the fields of emotional
driver who was turning left from behind her. The           loss and mental illness, was not familiar with
plaintiff contended that as a result, she suffered a       neuropsychological testing, and denied that the de-
subdural hematoma and a subarachnoid                       fense position should be accepted.
hemmhorage that was treated medically. The
plaintiff maintained that she suffered a mild TBI          The plaintiff further contended that she was left with a
that caused significant cognitive deficits involving       mild TBT which will permanently caused significant
memory and concentration.                                  memory and concentration deficits. The plaintiff
                                                           maintained that the deficits were confirmed by a
The plaintiff further contended that the head trauma       battery of neuropsychological testing. The plaintiff
left her with a permanent loss of smell and associ-        missed approximately two months from work. She
ated reduction in taste. The plaintiff, who required ex-   contended that although she returned, she has had
tensive antibiotic therapy after the collision,            great difficulties functioning.
contended that she developed C difficile colitis as a
result and that she will permanently suffer irritable      The case settled prior to trial for $975,000.
bowel syndrome.
The police report, which was generated after speak-
ing to the driver of the bus, noted that the accident      Caption info omitted upon request. 09-08-11.
occurred as the driver was making a left turn and          Attorneys for plaintiff: Clifford H. Shapiro and
looking right (opposite from the plaintiff) for oncoming   Michael J. Fitzpatrick of Wingate Russotti & Shapiro
traffic. The plaintiff left the scene by ambulance. She    in New York, NY.
does not know if she lost consciousness. She was
taken to the hospital where she was admitted for two       COMMENTARY
weeks and three days.
                                                           The defendant driver denied during his ebt that the plaintiff was
The plaintiff contended that she developed a loss of       crossing at the corner, or that the accident occurred at this location,
smell and taste after the accident. The plaintiff would    contending that that the accident occurred when he was 15-25 feet
have maintained that she underwent a battery of            from the corner and after having completed his turn. If the case
testing designed to determine if the claimed sensory       had been tried, the plaintiff would have undermined the defense
losses occurred. The evidence reflected that the tests     position by pointing to the police report which was generated after
are designed to uncover fabrication and are consid-        the investigating officer spoke to the defendant driver that re-
ered objective in nature. The plaintiff’s physicians at-   flected that the accident occurred as the driver was making a left
tributed her loss of smell and taste to the accident.      turn and looking right, which was opposite from the plaintiff at
The defendant’s IME doctor agreed that such sensory        oncoming traffic.
losses could come from head trauma.                        Regarding damages, the plaintiff, who maintained that she was
The plaintiff graduated from college in the 1950s in
                                                           left with a permanent cognitive deficits and the loss of smell and
pre-med and worked at a large company for 30
                                                           taste, contended that objective type testing confirmed these inju-
years. Upon her retirement at 60, she returned to
                                                           ries. In this regard, although she worked in the field of psychoanal-
school to earn her master’s degree in social work. She
                                                           ysis, she pointed out that she dealt with patients suffering
works as a psychoanalyst/social worker.
                                                           emotional or mental illness and did not possess neuropsychological

                                                                                                Subscribe Now
Volume 28, Issue 9, September 2011
SUMMARIES WITH TRIAL ANALYSIS                                                                                            9

Kings County, NY                                            witness, citing her position as a former NYPD officer
In this matter a former police officer sued for             discharged after a felony conviction for professional
excessive force after being thrown to the ground            misconduct.
and maced during an arrest by the New York City             After less than two hours of deliberation, the jury re-
Police Department. After a weeklong trial the jury
                                                            turned with a verdict for the defendant.
found for the defendant.
On March 16, 2007, police were called to resolve a          REFERENCE
tenant-landlord dispute in Brooklyn, New York involving     Crystal Spivey vs. The City of New York. Index no.
the plaintiff. Due to an alleged failure to comply with     030906/2008; Judge Ellen M. Spodek, 06-02-11.
officers’ orders, the plaintiff was thrown to the ground
and handcuffed. She was then maced. The plaintiff           Attorney for plaintiff: Aaron Depass of Santoriella &
sustained numerous cuts and bruises during the              Ditomaso, P.C. in Brooklyn, NY. Attorney for
course of her arrest.                                       defendant: Ryan Cebolla of Michael A. Cardozo,
                                                            ESQ. in New York, NY.
The plaintiff filed suit in the Supreme Court of New
York, Kings County for excessive force, citing the
macing and physical force used during her arrest.
The plaintiff sought an unspecified amount in non-          The testimony of the two arresting officers
economic damages.                                           impeached one another, according to plaintiff’s
                                                            counsel, who also argued the admission of the 23-
The plaintiff brought testimony at the week-long trial      year-old felony conviction lost the plaintiff credibility
from the plaintiff, a witness and the arresting officers.   with the jury. In 1987, the former officer was
The plaintiff did not dispute the arrest, only the force    convicted of official misconduct for accepting a bribe
applied. The defendant attacked the credibility of the      from an undercover Internal Affairs officer. That
                                                            arrest was one of many in connection with the 77th
                                                            Precinct scandal of 1986.

                          Verdicts by Category
                            PROFESSIONAL MALPRACTICE
Medical Malpractice – Ob/Gyn – Defendant                    The plaintiff went to the non-party emergency
gynecologist allegedly transects anterior cervix            room 12 days later with severe abdominal
and perforates uterine wall during cone biopsy –            complaints and required emergency surgery.
Plaintiff presents to subsequent emergency
department with severe abdominal complaints 12              The plaintiff presented an expert ob/gyn and the sub-
days later – Need for total abdominal                       poenaed testimony of the subsequent treating sur-
hysterectomy.                                               geon who related that the plaintiff required an
                                                            emergency exploratory laparotomy and total ab-
                                                            dominal hysterectomy due to massive hemorrhage,
New York County, NY
                                                            peritonitis, and an abscess in the posterior cul de sac.
The 40-year-old plaintiff, who underwent a cone             The physician concluded that the injuries occurred
biopsy that was performed by the defendant ob/              during the defendant’s surgery and the plaintiff main-
gyn, contended that the defendant conducted the             tained that it reflected negligent technique.
procedure in a negligent manner, transecting the
anterior cervix, and perforating the uterine wall.

                                                                Subscribe Now
                                                                                       New York Jury Verdict Review & Analysis
10                                                                                   VERDICTS BY CATEGORY

The defendant denied that she transected the cervix       mary care physician, for complaints of abdominal
or perforated the uterine wall. The defendant con-        pain, fever, elevated white blood cell count and
tended that if such an event had occurred, the signs      positive pelvic signs.
would have included dysfunctional vaginal bleeding.
                                                          The jury found that the defendant was not negligent.
The defendant noted the absence of such bleeding
in an exam five days following the cone biopsy.
The defense used a digital projection system, which       Plaintiff’s ob/gyn expert: Marc Englebert, MD from
displays records in a large, motion picture-like format   New York, NY. Defendant’s gynecological pathology
on a screen facing the jury. The defendant argued         expert: Khush Mittal, MD from New York, NY.
that these entries supported the defense position that    Defendant’s ob/gyn expert: Henry Prince, MD from
there was no objective evidence that these injuries       New York, NY.
were caused by the defendant, or indeed present,
                                                          Ramirez vs. Wu. Index no. 106586/08; Judge Saliann
until after plaintiff had undergone a number of ma-
                                                          Scarpulla, 02-03-11.
nipulations of the cone biopsy site days later at a
subsequent hospital, following a referral by her pri-     Attorney for defendant: Andrew Garson of Garson
                                                          DeCorato & Cohen, LLP in New York, NY.

Medical Malpractice – Orthopedics – Plaintiff             non-operative treatment had been unsuccessful. The
suffers a fracture at the site of a pedicle screw         defendant also argued that X-rays taken subsequent
during a lumbar laminectomy and fusion –                  to the procedure and the discovery of the fracture
Plaintiff claims a lack of informed consent and           provided no radiological evidence that the fusion did
calls the surgery too extensive given his age and         not heal properly.
                                                          The plaintiff did attempt to introduce post-surgery
Bronx County, NY                                          medical records from two different physicians, with-
The plaintiff brought this medical malpractice            out having disclosed them prior to trial. The court ex-
action after undergoing a lumbar sacral                   cluded these records based on the lack of
laminectomy and fusion which he claimed was an            disclosure. As this trial developed, a principle issue
inappropriate procedure considering his age and           became the lack of informed consent, yet the plain-
osteoporosis. During the procedure, the plaintiff         tiff professed a lack of recollection of much of the
suffered a fracture at the site of one of the pedicle     details surrounding the surgery.
screws in his sacrum. The plaintiff claimed
approximately $ 750,000 in pain and suffering             The jury therefore found the plaintiff’s credibility lack-
related to the fracture. The defendant contended          ing and rendered a verdict in favor of the defendant.
the plaintiff gave informed consent for the
procedure and that a fracture at the site of one of       REFERENCE
the screws is an accepted complication.                   Plaintiff’s orthopedic surgeon expert: Dr. Gregory
                                                          Shankman, M.D. from Uttica, NY. Defendant’s
The 75-year-old male plaintiff underwent the
                                                          orthopedic surgeon expert: Dr. Christopher
laminectomy and fusion on July 28, 2006 after unsuc-
                                                          Michelsen, M.D. from New York, NY.
cessful non-operative treatment. He claimed the op-
eration was too extensive given his advanced age          Harvey Yancey vs. Yong H. Kim, M.D. Index no.
and the presence of osteoporosis. He additionally de-     301562/2007; Judge Howard H. Sherman, 02-08-11.
nied giving informed consent to the procedure.            Attorney for plaintiff: Chad Young of Sinel &
The defendant claimed there was no evidence the           Associates, PLLC in New York, NY. Attorney for
plaintiff had osteoporosis, and contrarily, the defen-    defendant: Bruce Brady of Callan, Koster, Brady and
dant contended the plaintiff was an appropriate can-      Brennan, LLC in New York, NY.
didate for the surgery given the fact that previous

Medical Malpractice – Surgery – Plaintiff                 Richmond County, NY
undergoing fusion surgery involving L5-S1 and             The plaintiff, in his late 30s, who had suffered
S1-S2 levels contends defendant neurosurgeon              herniations at L5-S1 and S1-S2 while employed as
negligently opts for minimally invasive surgery           a construction worker approximately ten months
notwithstanding alleged vulnerability of small S1         earlier, contended that the defendant
pedicle invasive fusion to treat herniations to           neurosurgeon negligently recommended that the
injury – Permanent need for cane to walk.                 patient undergo minimally invasive surgery. The

                                                                                        Subscribe Now
Volume 28, Issue 9, September 2011
VERDICTS BY CATEGORY                                                                                                   11

plaintiff contended that because of the very small          The jury found that the defendant was not negligent.
size of the S2 pedicle bone, the defendant should
have performed an open procedure. There was no              REFERENCE
evidence that the defendant used negligent
                                                            Plaintiff’s neurosurgeon expert: Brian Holmes, MD
surgical technique.
                                                            from Hagerstown, MD. Defendant’s neurosurgeon
The plaintiff contended that he will permanently suffer     expert: George DiGiacinto,MD from New York, NY.
particularly severe pain and require a cane to walk.        Bjorkund vs. Shiau. Index no. 103946/08; Judge Jo-
The defendant contended that the minimally invasive         seph S. Maltese, 04-13-11.
option was an appropriate exercise of medical judg-
ment and that the injury to the S1 nerve root was a         Attorney for defendant: Louis E. Jakub, Jr. of Garson
known complication.                                         DeCorato & Cohen, LLP in New York, NY.

Medical Malpractice – Surgery – Alleged                     cheal stricture developed and that despite surgery,
premature extubation following successful bypass            the stricture recurred. The plaintiff contended that he
surgery – Alleged negligent reintubation – Airway           required a tracheotomy and will permanently require
stenosis – Permanent need for tracheostomy tube.            a tracheostomy tube.
                                                            The defendant contended that it was important to re-
Richmond County, NY
                                                            move the tube as soon as possible after the coronary
The plaintiff, who had undergone a successful               surgery in order to prevent lung damage. The defen-
CABG, contended that when attempts were made                dant maintained that a permissible medical judg-
to extubate the patient, he became very                     ment was made. The defendant also denied that the
combative, reflecting that the attempt was
                                                            tracheal stricture was caused by trauma during the
premature. The defendant sedated the patient
                                                            reintubation and contended that it is a known com-
after several attempts and ultimately extubated
him on the fifth day following surgery. The                 plication of prolonged intubation.
plaintiff maintained that the patient’s                     The jury found for the defendant.
combativeness factor should have underscored
that he was not ready to have the tube removed.             REFERENCE
The plaintiff contended that once the tube was re-          Passanisi vs. Staten Island University Hospital. Index no.
moved, the patient experienced severe breathing             104443/07; Judge Joseph S. Maltese, 12-07-10.
difficulties, and the tube was required to be immedi-
ately reinserted. The plaintiff maintained that the         Attorney for defendant: Louis E. Jakub, Jr. of Garson
plaintiff suffered a very significant trauma, that a tra-   DeCorato & Cohen, LLP in New York, NY.

                             CONSTRUCTION NEGLIGENCE
    $165,000 TOTAL RECOVERY
Construction Negligence – Failure of utility to             defendant driver negligently failed to observe it.
properly secure construction plates – Host driver           The plaintiff contended that the front of the van
fails to avoid gap between plates and slides back           drove into the gap and that the driver tried to
into it when he unsuccessfully attempts to                  accelerate out of the gap, but instead pushed the
accelerate out – Incident occurs when plaintiff is          plate away resulting in the van falling back into
being driven home from treatment of a                       the excavation. The plaintiff indicated that the
longstanding preexisting back condition – Cervical          plates were “ajar,” and she saw the gap a few
compression fracture – Several cervical and                 seconds before the impact.
lumbar bulges.
                                                            An independent witness testified the hole was about
                                                            five to six feet deep. The incident occurred during a
Kings County, NY                                            moderate rain and moderate traffic conditions. Con-
The plaintiff front seat van passenger, who was             Ed contended it had nothing to do with the excava-
being driven home from her physician where she              tion site and merely put its plates over the excavation
underwent treatment for a long-standing back                at the request of NYPD after the accident. Although
condition, contended that the defendant utility             under subpoena, the defendant driver failed to
negligently failed to secure two road construction          appear at trial.
plates when road excavation was not occurring.
The plaintiff contended that as a result, a gap
formed between the plates, and that the co-

                                                                 Subscribe Now
                                                                                       New York Jury Verdict Review & Analysis
12                                                                                     VERDICTS BY CATEGORY

The plaintiff contended that she observed that the         The utility settled during the liability trial for $140,000.
construction plates had a welded logo “CE” on them         The jury found the host driver 75% negligent and the
as she was being removed from the scene. The plain-        utility 25% negligent. The case against the driver then
tiff further maintained that photos from the scene the     settled for the $25,000 policy limits.
day after the accident confirmed that the utility’s logo
was on the construction plates.                            REFERENCE
The plaintiff had suffered a back injury some years        Woodruff vs. Con-Ed, et al. Index no. 3867/07; Judge
earlier and was receiving treatment for a lumbar and       David Vaughn, 09-14-11.
cervical bulge. The plaintiff contended that the sub-      Attorney for plaintiff: Phillip P. Nikolis of Pugatch &
ject incident caused a compression fracture at C-5,        Nikolis in Garden City, NY.
an aggravation of the prior condition and several ad-
ditional bulges in both the cervical and lumbar areas.
The plaintiff contended that she will permanently suf-
fer particularly extensive pain and limitations.

Contract – Plaintiff airline brings action for             the incident. The service company contended that it
common law contribution and contractual                    should not be liable for contractual indemnification
indemnification against defendant service                  unless the airline was free of fault. The service com-
company – Case regards underlying incident of              pany maintained that reasonable minds could not so
service company employee waiting on tarmac                 find and that the action should be dismissed. The air-
being struck and killed by vehicle driven by airline       line also contended, on its common law contribution
employee.                                                  claim, that the service company breached its com-
                                                           mon law duty to provide adequate training to the
U.S. District Court, Eastern District of NY                worker, leading to her death.
This action involved a plaintiff airline, an airline
                                                           The service company denied that it had a common
carrier, and a defendant service company that
                                                           law duty to train/supervise the worker in road safety,
was contracted to clean the airline’s planes,
including those which were parked at a remote              and that the service company’s motion should be
lot. The underlying incident giving rise to this case      granted.
occurred during the midnight shift and during this         The court concurred with the service company and
period, airline mechanics would provide access to          granted its motion for summary judgment.
the plane for the defendant’s cleaning workers. A
cleaning worker employed by the service
company was struck and killed by a vehicle driven
by an airline worker as the cleaning worker was            Medina vs. Delta Air Lines, Inc. v. ARAMARK Aviation
waiting to be picked up and the litigation relating        Services. Index no. 09-CV-4018 (NGG) (LB); Judge
to the underlying incident is pending.                     Nicholas G. Garaufis, 08-16-11.
The plaintiff airline contended that it was entitled to    Attorney for defendant: Frank D. Thompson, II of
contractual indemnification and common law contri-         Lewis Brisbois Bisgaard & Smith LLP in New York, NY.
bution from the service company for any liability for

Contract – Plaintiff home buyer contends                   moving in, she ascertained that the house was
defendant agrees to remediate mold from house              filled with mold, and that the defendant failed to
and fails to do so.                                        remediate it.
                                                           The defendant denied that there was a contract to
Rockland County, NY                                        remediate mold. The defendant contended that the
The plaintiff, a home purchaser, contended that            agreement called for the plaintiff to pay $150,000 for
she asked the defendant, her friend who was                other work, including roofing work and ridding the pre-
associated with a real estate management                   mises of vermin. The defendant maintained that the
company, to have the house repaired and made               plaintiff only paid $15,000 for this non-mold work.
habitable. The plaintiff contended that after

                                                                                          Subscribe Now
Volume 28, Issue 9, September 2011
VERDICTS BY CATEGORY                                                                                                     13

The jury found that the parties had not entered into a        Attorney for defendant: Phyllis Shandler of Miller
contract for the remediation of mold.                         Miller & Shandler in Haverstraw, NY.

Cortazzo vs. Norfleet Management, et al. Index no.
000607/09; Judge Linda S. Jamieson, 01-12-11.

                                    EMPLOYER’S LIABILITY
     $1,375,000 PRE-TRIAL RECOVERY
Employer’s Liability – Plaintiff falls from ladder            The defendants denied the allegations and disputed
while working – Comminuted heel fracture.                     the nature and extent of the plaintiff’s injuries and
                                                              damages. The defendants contended that the plain-
Westchester County, NY                                        tiff was the one who decided to place the ladder he
In this negligence matter, the plaintiff alleged that         was provided in the spot that he did and he was neg-
the defendants were negligent in providing him                ligent in doing so, causing his own injuries.
with the wrong type of ladder which tipped when               The plaintiff moved for summary judgment on the is-
the garage door he was working on was                         sue of liability which was denied by the trial court. The
activated, causing him to fall to the ground and              plaintiff appealed the ruling and the appellate court
fracture his heel. The defendants denied the
                                                              reversed, holding that since the incident occurred as
                                                              a result of an elevation related hazard, the plaintiff
The male plaintiff, a garage door installer, was work-        was not provided the proper and safe equipment by
ing on the installation of garage doors for the defen-        the defendant.
dants. The plaintiff was required to secure a
                                                              The matter was to proceed solely on the issue of
mechanical arm with the controller along a door’s
                                                              damages. The parties agreed to settle the plaintiff’s
upper edge. This required the plaintiff to use a ladder
                                                              claim for the sum of $1,3750,000 in a pre-trial medi-
to get to the height necessary to make the connec-
                                                              ated settlement.
tion. The defendants gave the plaintiff an extension
ladder which was propped against the garage door.
As the plaintiff was working on the arm connection,           REFERENCE
the door began to open. The extension ladder tipped           Plaintiff’s economics expert: Pia Di Girolamo, Ph.D.
and the plaintiff fell a distance of about 12 feet to         from Philadelphia, PA. Plaintiff’s vocational
the ground.                                                   assessment expert: Stuart Schnin, M.S. from New
                                                              York, NY. Defendant’s vocational assessment expert:
As a result of the fall, the plaintiff injured his foot and   Melissa Fass-Karlin from Morganville, NJ.
wrist. He was diagnosed with a comminuted heel
fracture which required open reduction and fixation           Danilo Riffo-Velozo vs. Village of Scarsdale, et al. In-
surgery, as well as a wrist injury. The plaintiff brought     dex no. 65/07; Judge Joan B. Lefkowitz, 12-10-10.
suit against the defendant town, the maintenance fa-          Attorneys for plaintiff: Michael Arce and Yolanda
cility itself and the public school district for the town.    Castro-Arce of The Arce Law Office in Bronx, NY.
The plaintiff alleged that the defendants were negli-         Attorney for defendant: Thomas J. Dargan of Lewis
gent in failing to comply with labor laws which re-           Johs Avallone Aviles & Kaufman in Melville, NY.
quired provisions of safe proper equipment. The               Attorney for defendant: Alyson M. Piscitelli of
plaintiff contended that the use of an A-frame ladder         Jacobwitz Garfinkel & Lesman in New York, NY.
would have been the proper ladder and would have
prevented the ladder from tipping when the door
suddenly opened, since would not have been
leaning against the door.

Fraud – Former director sued after embezzlement               Kings County, NY
of funds discovered – $58,544 in misappropriated              In this matter, a New York City non-profit
funds.                                                        organization sued its former director for recovery
                                                              of misappropriated funds. A default judgment was
                                                              entered in the plaintiff’s favor after the defendant
                                                              ceased defending the case, a decision following
                                                              her guilty plea in a Federal criminal court.

                                                              Subscribe Now              New York Jury Verdict Review & Analysis
14                                                                                     VERDICTS BY CATEGORY

The defendant in this matter Dr. Marilyn J. was the di-      Women’s Health, sought recovery of $58,544 in mis-
rector of the Caribbean Women’s Health Association,          appropriated grants, consulting fees, and other acts
as well as an employee of the city of New York’s De-         of criminal embezzlement.
partment of Health at an earlier time. Investigation
                                                             Marilyn J. pleaded guilty in July 2010 to one count of
into the defendant’s actions at CWHA began first, fol-
                                                             embezzlement and one count of conspiracy to com-
lowing an audit performed after her leaving that or-
                                                             mit mail and wire fraud. Subsequent to the defen-
ganization’s employ. Irregularities amounting to
                                                             dant’s plea, civil defense on this matter was
misappropriation of funds were discovered,
                                                             withdrawn. In a one day inquest without the presenta-
precipitating this suit.
                                                             tion of defense, the plaintiff showed evidence of the
Further, a criminal investigation was instituted by the      plaintiff’s three charges.
City of New York respecting the defendant’s time at
                                                             A motion for default judgment was entered by the
the Department of Health. The defendant was found
                                                             plaintiff and approved by Judge Mariam Sunshine.
through independent investigation to have misappro-
                                                             The decision awarded the Caribbean Women’s
priated approximately $58,544 of CWHA’s federal
                                                             Health Association $58,544 in redress of damages.
and state funding. These actions were accomplished
through three unapproved salary increases, billing as
both a salaried employee and an independent con-             REFERENCE
sultant, and billing for non-business travel expenses.       Caribbean Women’s Health Association vs. Dr. Marilyn
The City of New York further accused Marilyn J. of, be-      John. Index no. 021931/2008; Judge Mariam Sun-
tween February and March 2006, criminally defraud-           shine, 06-07-11.
ing banks to the tune of approximately $2,589,000            Attorney for plaintiff Caribbean Women’s Health
through the falsification of information for the             Association: Roger V. Archivald of Roger V.
procurement of home mortgage loans on several                Archivald, Esq. in Brooklyn, NY. Attorney for
properties.                                                  defendant: The Hinds Firm, LLP in Brooklyn, NY.
Caribbean Women’s Health filed suit against its for-
mer director in the Supreme Court of New York, Kings
County. The sole plaintiff in this matter, Caribbean

                                               LABOR LAW
      $2,871,200 VERDICT
Labor Law – Construction Site Negligence – Mason             underwent a year of physical therapy, but contended
sues City of New York after fall while climbing              that his arm’s range of motion was permanently hin-
scaffold – Four broken ribs – Knee injury – Rotator          dered, which prevented him from returning to work.
cuff injury.
                                                             The plaintiff filed suit in the Supreme Court of New
                                                             York, Bronx County for his employer’s alleged violation
Bronx County, NY
                                                             of state labor laws. The defendants named in the suit
In this matter, a mason on a New York City                   included the City of New York (the site’s owner), the
construction site sued after falling from a scaffold.        NYC Department of Education (the site’s operator)
The plaintiff claimed debilitating injury to his             and the NYC School Construction Authority (the job’s
                                                             general contractor). The plaintiff sought $4 million to
On February 24, 2007, the plaintiff, 53, was working as      $7 million for past and future medical expenses, lost
a mason on the 980 Mace Avenue School construc-              earnings, work-related annuity income and pain and
tion site in the Bronx. On the exterior scaffolding to the   suffering. The plaintiff gave a demand for $3 million
job site there was a temporary platform area be-             for pretrial settlement. The defendant offered $1.5
tween two permanent areas. While climbing the scaf-          million.
fold to reach this area, the plaintiff fell. The 12-foot
                                                             At trial, the plaintiff accused the defendants of violat-
drop resulted in the plaintiff’s alleged injuries, a total
                                                             ing § 240(1) and § 241(6) of the state’s labor code.
of four broken ribs, a knee injury and a full thickness
                                                             Regarding the alleged breach of Labor Law § 240(1),
rotator cuff injury to this right shoulder.
                                                             they argued that defendants violated New York
He was transported to Jacobi Medical Center for              Codes, Rules, and Regulations, title 23, parts 1.7(f)
treatment of his dislocated shoulder. In June, his           and 23-5.3(f) which requires workers be provide stairs,
shoulder was treated surgically with an open reduc-          ladders or ramps for scaffolds over two feet in height.
tion and internal fixation including an anchor. In July      Two of the plaintiff’s co-workers concurred with the
2008, he underwent an arthroscopic meniscectomy              plaintiff that the scaffold’s temporary platform could
to address the damage to his knee. The plaintiff also        only be reached by climbing the structure. The failure

                                                                                           Subscribe Now
Volume 28, Issue 9, September 2011
VERDICTS BY CATEGORY                                                                                                   15

to provide safety devices to prevent elevation/gravity       REFERENCE
related injuries was further cited as a violation of         Plaintiff’s economics expert: Alan Leiken from Stony
Labor Law § 241(6).                                          Brook, NY. Plaintiff’s engineering expert: Walter
The defendants argued that equipment including               Conon from Waccabuc, NY. Plaintiff’s orthopedics
ladders was available, and that the plaintiff and his        expert: Scott Gray from Astoria, NY. Plaintiff’s
co-workers had been instructed not to climb the              physical medicine expert: Malcolm Reed from New
cross-braces, but did so anyway. The plaintiff’s super-      York, NY. Defendant’s orthopedics expert: Robert
visors confirmed that these instructions had been            Goldstein from Bronx, NY. Defendant’s radiology
given. The defendants cited meeting minutes in               expert: Evan Dillon from New York, NY.
which the instructions were issued.                          Marek Ciepierski vs. New York City School Construction
                                                             Authority, the City of New York and the New York City
After the conclusion of trial, the jury of six deliberated
                                                             Department of Education. Index no. 15754/2007;
for one day before returning a verdict for the plaintiff.
                                                             Judge Alison Y. Tuitt, 03-18-11.
The jury awarded $2,871,200, concluding that the
defendants had violated state labor laws and regula-         Attorney for plaintiff: David H. Perecman of The
tions, and that this violation was the cause of the          Perecman Firm, P.L.L.C. in New York, NY. Attorney
plaintiff’s fall. The verdict included $775,000 for future   for defendant: Matthew P. Ross of Wilson, Elser,
medical damages and $1.636 million in past and fu-           Moskowitz, Edelman & Dicker L.L.P. in New York, NY.
ture lost earning capacity. The jury split was 5-1.

                            MOTOR VEHICLE NEGLIGENCE
                                    Intersection Collision
     $100,000 VERDICT
Motor Vehicle Negligence – Intersection Collision            manent pain and limitations. A kidney bruise and two
– Failure to stop at stop sign at T-intersection –           rib fractures resolved. The plaintiff lost 17 weeks from
Lumbar Facet Joint Dysfunction – Aggravation of              work.
previously asymptomatic scoliosis – Resolving
kidney bruise and rib fractures.                             The defendant admitted 100% negligence, proxi-
                                                             mate cause and that plaintiff’s injuries met the serious
Genesee County, NY                                           injury threshold. The defendant denied that the acci-
                                                             dent caused the claimed scoliosis aggravation or
The plaintiff driver, in his 30s, who was                    lumbar facet joint dysfunction.
approaching the top of a T-intersection,
contended that the defendant driver negligently              The defendant had offered $10,000 and the plaintiff’s
failed to stop at a stop sign, causing the collision.        settlement demand was $80,000. The jury awarded
The plaintiff contended that he sustained facet joint
dysfunction at a lumbar vertebrae and that he will
suffer permanent pain and limitations despite treat-         REFERENCE
ments such as injections. The plaintiff also contended       Holtfoth vs. Williams. Index no. 56812; Judge Robert
that a prior case of moderate scoliosis was asymp-           C. Noonan, 03-01-11.
tomatic until the collision occurred, and maintained         Attorney for plaintiff: Mark P. Della Posta of Walsh
that he suffered an aggravation that will cause per-         Roberts & Grace in Buffalo, NY.

     $75,000 VERDICT
Motor Vehicle Negligence – Intersection Collision            Kings County, NY
– Failure to stop at stop sign – Defendant                   The plaintiff driver, in his mid 30s, contended that
contends he was confronted with sudden                       the defendant driver ran a stop sign, causing the
emergency because he was fleeing from                        collision. The defendant maintained that he was
individual appearing to threaten him with a gun –            confronted with a sudden emergency. The
Lumbar and cervical herniations and bulges – Ten             defendant contended that an incident of road
weeks missed from work.                                      rage had just occurred and that the other driver
                                                             pulled over and gestured he was about to get a
                                                             gun from his trunk.

                                                                  Subscribe Now
                                                                                       New York Jury Verdict Review & Analysis
16                                                                                     VERDICTS BY CATEGORY

The plaintiff maintained that the defendant was either     will require surgery in the future. The plaintiff, who is a
drag racing or playing “cat and mouse” with the            counter-terrorism detective, missed approximately
other driver before the other driver pulled to the side    ten weeks from work.
to open his trunk. The plaintiff maintained that the de-
                                                           The jury in the liability trial found the defendant 100%
fendant caused the situation and denied that it was
                                                           liable following the damages trial, awarding $75,000.
sudden, contending that his claim of a sudden emer-
gency should be rejected.
The plaintiff contended that he sustained cervical         Willis vs. Millington. Index no. 030436/08; Judge Her-
and lumbar herniations and bulges which were con-          bert Kramer, 06-13-11.
firmed by MRI. The plaintiff maintained that he contin-
ues to suffer extensive pain despite conservative care     Attorney for plaintiff: Karen Emma of Gary Kauget,
and contended that such symptoms will continue             P.C. in New York, NY.
permanently. There was no evidence that the plaintiff

                                        Left Turn Collision
      $25,000 (POLICY LIMIT) VERDICT
Motor Vehicle Negligence – Left Turn Collision –           manently suffer pain and some limitations. The
Plaintiff driver is struck in rear while making left       plaintiff was disabled from a work-related accident at
turn – Wrist fracture to non-dominant hand –               the time of the collision and made no income
Summary Jury Trial.                                        claims.
                                                           The jury found the defendant 100% negligent and
Queens County, NY
                                                           awarded $25,000.
The plaintiff driver, in his mid 50s, contended that
the defendant driver negligently struck him in the
rear as the plaintiff was slowing to turn left after
he activated his turn signal. The defendant denied         Papahatzis vs. Yuminaga. Index no. 016179/08, 02-
that the plaintiff turned on his signal and                23-11.
maintained that the plaintiff stopped short,               Attorney for plaintiff: Jimmy C. Solomos of Law
rendering the accident unavoidable.
                                                           Offices of Jimmy C. Solomos in Astoria, NY.
The plaintiff contended that he sustained a fractured
wrist on the non-dominant side that was treated con-
servatively. The plaintiff maintained that he will per-

                                     Multiple Vehicle Collision
Motor Vehicle Negligence – Multiple Vehicle                that the plaintiff will suffer permanent pain and limita-
Collision – Plaintiff driver is struck in rear after       tions and that lumbar surgery will probably be indi-
driver strikes car directly behind plaintiff and           cated in approximately ten years. The defendant’s
propels it into plaintiff’s vehicle – Collision            neurologist denied that the plaintiff suffered the
allegedly causes lumbar and cervical herniation –          claimed herniations.
Alleged need for lumbar surgery in approximately
ten years – Plaintiff corrections officer able to          The plaintiff is a corrections officer and was able to
return to work.                                            return to work after a short absence. There was no evi-
                                                           dence of prior trauma.
Erie County, NY                                            The jury found for the defendant on the no-fault
The plaintiff driver, approximately 40, contended          threshold.
that he was struck in the rear when stopped. The
evidence disclosed that the driver of the third car        REFERENCE
struck the second car in the rear, propelling it into
                                                           Plaintiff’s economist expert: Ronald Reiber, PhD from
the plaintiff’s car. The plaintiff had named both
drivers as defendants and the second driver’s              Buffalo, NY. Plaintiff’s orthopedic surgeon expert:
motion for summary judgment on liability was               William Cappicotto, MD from Buffalo, NY.
granted. The plaintiff’s motion for a directed             Defendant’s neurologist expert: Daniel Castellani,
verdict on negligence against the third driver was         MD from Buffalo, NY.
also granted.                                              Bauer vs. Riefler Concrete. Index no. 012128/08;
The plaintiff contended that he sustained a lumbar         Judge Tracey A. Bannister, 05-13-11.
and a cervical herniation which were confirmed by          Attorney for defendant: Leo T. Fabrizzi of Law Offices
MRI. The plaintiff’s orthopedic surgeon contended          of Laurie Ogden in Buffalo, NY.

                                                                                          Subscribe Now
Volume 28, Issue 9, September 2011
VERDICTS BY CATEGORY                                                                                                    17

                                        Rear End Collision
     $350,000 VERDICT
Motor Vehicle Negligence – Rear End Collision –              The defendant denied that the plaintiff suffered the
Cervical herniation – Plaintiff returns to clerical          herniation in the accident and maintained that any
job four months later despite continuing pain and            symptoms were related to degenerative disc disease.
limitations – Damages only – Summary Jury Trial.             The defendant also questioned the extent to which
                                                             the plaintiff’s ability to enjoy non-work related activities
Bronx County, NY                                             has been effected.
The plaintiff’s motion for summary judgment on               The jury awarded $350,000. The defendant had
liability was granted in this rear end collision             $100,000 in coverage.
The plaintiff driver, in her 40s, contended that she sus-    REFERENCE
tained a cervical herniation that was confirmed by           Plaintiff’s chiropractor expert: Henry Hall, DC from
MRI. The plaintiff maintained that she will permanently      Bronx, NY.
suffer symptoms despite conservative treatment.
                                                             Bryant vs. Ahaziah. Index no. 305197/09; Judge Barry
There was no evidence that surgery will be indicated.
                                                             Salmon, 02-18-11.
The plaintiff has a clerical job with a utility and missed
                                                             Attorney for plaintiff: Richard K. Hershman of
four months from work. The plaintiff contended that
                                                             Richard K. Hershman, PLLC in New York, NY.
she now works despite extensive pain and limitations.

     $102,000 VERDICT
Motor Vehicle Negligence – Rear End Collision –              The defendant denied that the plaintiff suffered the
Plaintiff contends collision causes lumbar                   claimed injuries or met the no-fault threshold. The evi-
herniations and ankle sprain – Alleged inability to          dence reflected that the collision involved a substan-
continue as security guard – Damages only.                   tial impact.
                                                             The jury awarded $102,000, including $75,000 for lost
Westchester County, NY
                                                             earnings, $10,000 for future medical costs and
The plaintiff’s motion for summary judgment on               $17,000 for past medical costs and $0 pain and
liability was granted in this rear end collision             suffering.
The plaintiff driver, in his mid 30s, contended that he      REFERENCE
sustained herniations at L4-5 and L5-S1 that were            Plaintiff’s orthopedist expert: Stanley Holstein, MD
confirmed by MRI and which will cause permanent              from New Rochelle, NY. Defendant’s neurologist
symptoms. There was no evidence that disc surgery is         expert: Rene Elken, MD from Rye Brook, NJ.
indicated. The plaintiff also maintained that he suf-
                                                             Rivers vs. Peter. Index no. 025850/2008; Judge Orazio
fered an ankle sprain which essentially resolved.
                                                             Bellantoni, 01-20-11.
The plaintiff, who had worked as a security guard,
                                                             Attorney for plaintiff: Micheal Becker of Marcus
contended that he can no longer do this work and
                                                             Ollman & Kommer, LLC in New Rochelle, NY.
that because of difficulties standing or sitting for ex-
tended periods, he will have great difficulties obtain-
ing alternative work.

     $40,000 VERDICT
Motor Vehicle Negligence – Rear End Collision –              awarded $40,000 for pain and suffering
Elderly man rear-ended by college student sues               associated with a rotator cuff tear and other
for shoulder injury – Torn rotator cuff – Soft tissue        injuries.
                                                             The plaintiff, 84 years old, was driving with his wife on
                                                             the access ramp of Highway 198 in Buffalo, New York.
Erie County, NY                                              While stopped at a sign-controlled intersection, the
In this matter, a rear end collision on a roadway            plaintiff was struck from behind by a vehicle driven by
was resolved for the plaintiff in a one day                  the defendant. The plaintiff sustained strains to his
summary trial. The plaintiff, a senior citizen, was          neck and back, as well as a tear to his right rotator

                                                                  Subscribe Now
                                                                                        New York Jury Verdict Review & Analysis
18                                                                                    VERDICTS BY CATEGORY

The plaintiff filed suit for motor vehicle negligence in   After an hour, the jury returned with a verdict for the
the Supreme Court of New York, Erie county. Named          plaintiff, awarding $40,000 in pain and suffering
in the suit was the defendant driver, as well as the ve-   damages.
hicle’s owner. The plaintiff’s medical damages were
covered by his no-fault insurance policy, with pain        REFERENCE
and suffering recovery sought in this filing. The defen-   Plaintiff’s orthopedics expert: Joseph Buran from
dants made a settlement offer of $7,500.                   Buffalo, NY. Defendant’s orthopedics expert: John
A one day summary trial was held, with the plaintiff       Leddy from Buffalo, NY.
and defendant reviewing medical records of the             John Liberati vs. Kaitlyn Riznyk. Index no. 010169/
treating physicians and experts in orthopedics. The        2009; Judge Donna M. Siwek, 01-21-11.
defendant argued that the plaintiff’s condition was a
product of his age and preexisting conditions. The         Attorney for plaintiff: Nelson S. Torre of Law Office
plaintiff, however, demonstrated that he had no            of Nelson S. Torre in Buffalo, NY. Attorney for
complaints or treatment to the right shoulder during       defendant Kaitlyn Riznyk: George Collins of Bouvier
the several years prior to the collision.                  Parnership in Buffalo, NY.

Motor Vehicle Negligence – Rear End Collision –            jured her neck and back, but claimed that after a
Plaintiff driver is struck in the rear while stopped       short period of chiropractic treatment she was much
at stop sign – Collision allegedly partially tears         improved.
rotator cuff and tears glenoid labrum requiring
arthroscopic surgery – Alleged exacerbation of             The defendant maintained that the plaintiff made
preexisting neck and back injuries sustained in a          significantly greater complaints regarding the shoul-
1999 MVA – Damages only.                                   der and disc injuries between the time of the earlier
                                                           accident and the subject collision than claimed on
Westchester County, NY                                     direct by the plaintiff. The defendant’s biomechanical
                                                           engineer contended that based upon an analysis of
Liability was stipulated in this case in which the
                                                           crush damage and an entirely independent analysis
48-year-old plaintiff driver contended that she
                                                           based upon estimates of speed provided by the testi-
was struck in the rear by the defendant while
stopped at a stop sign in April 2005. The plaintiff        fying witnesses, he concluded that the change in ve-
contended that she sustained a partially torn              locity of the plaintiff’s vehicle as a result of the impact
rotator cuff and torn glenoid labrum which                 could be no greater than four miles an hour. He de-
required arthroscopic surgery. She also claimed            scribed the physiological effect of such an impact to
that she had an aggravation or exacerbation of             a driver protected by a seat back, head rest and a
preexisting neck and back injuries sustained in a          seatbelt and concluded that her body parts did not
1999 motor vehicle accident.                               and could not have exceeded their normal physio-
                                                           logical limits of motion. He also concluded that there
The plaintiff described the impact as hard and al-         was no load applied to plaintiff’s right shoulder which
leged her vehicle was pushed eight to ten feet. She        could have been the competent producing cause of
was thrown forward and back and the seatbelt put           the tears of the rotator cuff and labrum.
pressure on her upper torso. The plaintiff maintained
that a bulging disc at C5-C6 seen on an MRI taken in       The jury found for the defendant on the no-fault
2003 turned into a herniated disc with cord compres-       threshold.
sion as seen on an MRI taken after the subject
collision.                                                 REFERENCE
The plaintiff related that after P.T. was inadequate,      Defendant’s biomechanical engineer expert: Kevin
she underwent arthroscopic shoulder surgery. The           Toosi from Pittsburg, PA. Defendant’s neurologist
plaintiff maintained that despite this intervention, she   expert: Renee Elkin, MD. Defendant’s orthopedist
will permanently suffer pain and restriction in the        expert: Martin Barschi, MD.
shoulder, as well as radiating pain and weakness in        Robinson vs. Yaeger. Index no. 009128/06; Judge
the back and neck permanently. The plaintiff testified     Joan B. Lefkowitz, 02-16-11.
on direct that she was in an accident in 1999 and in-
                                                           Attorney for defendant: Thomas J. Keane of Nesci -
                                                           Keane PLLC in Hawthorne, NY.

                                                                                         Subscribe Now
Volume 28, Issue 9, September 2011
VERDICTS BY CATEGORY                                                                                                 19

                               Stopped Vehicle Collision
Motor Vehicle Negligence – Stopped Vehicle                 The defendant’s biomechanical engineer/accident
Collision – Defendant driver of double-parked box          reconstruction expert denied that the low impact col-
truck backs up into double-parked plaintiff vehicle        lision caused the claimed injuries. The defendant’s ra-
– Lumbar herniation and bulges – Cervical bulges           diologist and orthopedic surgeon denied that the
– Torn medial meniscus – Damages only.                     films showed the claimed injuries.

Kings County, NY                                           The jury found for the defendant on the no-fault
The plaintiff driver, who was double parked,
contended that the defendant box truck driver,
double parked in front of him, failed to make              REFERENCE
observations as he commenced traveling in                  Plaintiff’s orthopedic surgeon expert: Alan Dayne,
reverse, striking the plaintiff’s vehicle. Liability       MD from New York, NY. Defendant’s accident
was stipulated and prior to trial, the parties             reconstruction expert/biomechanical engineer expert:
entered into a $15,000/$150,000 high/low                   Robert Fijan from PA. Defendant’s orthopedic
agreement.                                                 surgeon expert: Edward Toriello, MD from New York,
                                                           NY. Defendant’s radiologist expert: Stephen Lastig,
The plaintiff contended that he sustained a herniation
                                                           MD from New York, NY.
at L2-3, as well as bulges at L3-4, L4-5, C3-4 and C4-
5. These injuries were treated conservatively. The         Leykin vs. INNS Corp. Index no. 027813/08; Judge
plaintiff also maintained that he suffered a tear of the   Leon Ruchelsman, 05-31-11.
medial meniscus that necessitated arthroscopic sur-        Attorney for defendant: Richard B. Brown of Picciano
gery. The plaintiff’s orthopedic surgeon contended         & Scahill, P.C. in Westbury, NY.
that he will suffer permanent pain and restriction in
both the back and knee.

                                      PREMISES LIABILITY
                                                 Fall Down
Premises Liability – Fall Down – Slip and fall in          she could not remember which friends besides the
tavern – Defendant allegedly fails to dry puddle           notice witness had accompanied her and the names
near door despite complaints by plaintiff upon             of several other taverns she visited earlier in the
entering approximately one hour earlier –                  evening.
Bimalleolar fracture – Liability only.
                                                           The defendant further called the EMT who transported
Westchester County, NY                                     the plaintiff to the hospital and the triage nurse who
                                                           treated the plaintiff in the emergency room, on liabil-
The plaintiff contended that the defendant tavern          ity. The EMT testified, based on the ambulance re-
negligently failed to clean a large puddle situated        port, that the plaintiff claimed she “stumbled” and
three to five feet from the door, notwithstanding
                                                           the triage nurse testified, based on the emergency
plaintiff’s complaints about the existence of the
                                                           room records, that the plaintiff stated that she
puddle when she first entered the establishment
sometime after midnight. The plaintiff alleged that        “missed a step.” The defendant further maintained
the condition remained for at least an hour before         that if the jury found that the plaintiff slipped on the
she slipped and fell.                                      puddle, it was clear, based on her testimony that she
                                                           was aware of its presence, as she admittedly walked
In support of her claim, the plaintiff called a friend     through it as she was leaving, and that she was com-
that was with her that night. This witness supported       paratively negligent in failing to avoid it.
plaintiff’s allegation that the puddle existed on the
floor prior to the plaintiff’s accident.                   The jury found that the defendant was not negligent.

In response, the defendant denied that it had any re-      REFERENCE
cord of being advised of the puddle. The defendant
                                                           Maier vs. Tri-Kelly’s Inc. Index no. 019758/08; Judge J.
also maintained that the plaintiff’s believability was
                                                           Emmett Murphy, 02-07-11.
highly suspect. The defendant contended that the
jury should consider that although the plaintiff could     Attorney for defendant: Carmen Nicolaou of Havkins
recall the dimensions of the puddle with specificity,      Rosenfeld Ritzert & Varriale, LLP in White Plains, NY.

                                                           Subscribe Now             New York Jury Verdict Review & Analysis
20                                                                                       VERDICTS BY CATEGORY

                                       Hazardous Premises
      $320,000 VERDICT
Premises Liability – Hazardous Premises – Plaintiff            the doorman was actually “leaning” on a desk while
trips and falls over a rain runner in her apartment            the maintenance man simply proceeded with rolling
building lobby – Broken right elbow.                           up the runner.
                                                               Video footage of the trip and fall incident in the lobby
New York County, NY
                                                               was produced and shown during trial. Until that time,
The plaintiff in this case, a female, in her early             nobody had witnessed the footage, which showed
60s, who suffers from vision maladies, claimed                 the doorman leaning against a desk and the mainte-
she tripped and fell over a rolled-up rain runner              nance person, also apathetic, as the plaintiff walked
in the lobby of her apartment complex. She                     through the lobby. As a result, during the trial, both
contended that in addition to creating the
                                                               men testified that what they stated in deposition was
hazardous condition in the lobby, the building
                                                               essentially wrong. The defendant was also charged
maintenance person and doorman failed to warn
her despite having knowledge of her poor vision.               by the court with a missing records charge for not
The plaintiff suffered breaks in multiple parts of             producing a log book with notations about the trip
her elbow joint as a result of her fall. The                   and fall.
defendant claimed an obstruction was not created               The jury awarded the plaintiff $400,000, but allotted
in the lobby since an alternate walking path                   20% liability to the plaintiff, with a total award of
existed. The defendant additionally argued the                 $320,000.
plaintiff was adequately warned of the rain
runner yet failed to heed the warnings of both the
door man and the maintenance person.                           REFERENCE
                                                               Plaintiff’s orthopedic surgeon expert: Dr. Jeffrey
The incident occurred on May 20, 2004 in the apart-            Kaplan, M.D. from New York, NY. Defendant’s
ment building the plaintiff had lived in for nearly 30         orthopedic surgeon expert: Dr. Jeffrey Lubliner, M.D.
years. At the time of the plaintiff’s fall, the building       from New York, NY.
maintenance person was rolling up the runner, which
the plaintiff noted was the same color as the floor in         Gerda Potocnik vs. Tracey Tenants. Index no. 106660/
the lobby. Both the maintenance person and the                 2007; Judge Louis B. York, 12-14-10.
doorman stated in deposition they were screaming               Attorney for plaintiff: Bryan J. Swerling of Bryan J.
and waving their arms in an attempt to warn the                Swerling in New York, NY. Attorney for defendant:
plaintiff of the runner. Contrarily, the plaintiff testified   Margaret G. Klein & Assocs. in New York, NY.

      $221,000 VERDICT
Premises Liability – Hazardous Premises – Woman                The plaintiff has since reached adulthood, and ar-
sues for diminished capacity as a result of lead               gues that lead exposure has adversely affected her
poisoning as a child – Diminished cognitive                    cognitive ability and as a result, earning capacity.
                                                               The plaintiff filed a premises liability suit in the Su-
                                                               preme Court of New York, Monroe County. Named as
Monroe County, NY
                                                               defendants in the petition were the landlords Charles
In this matter, a woman sued for damages                       Stern and Richard F., at whose properties the plaintiff
associated with lead poison sustained when she                 had resided during the period in question. Damages
was a child. The plaintiff named as defendants                 were sought for future economic losses as a result of
the landlords of two properties where she lived
                                                               the plaintiff’s neurological condition.
from the ages of three until six. One defendant
did not appear. The other defendant denied the                 The plaintiff showed at trial records of the lead paint
causation of the plaintiff’s disability.                       citation by the Monroe County Department of Health.
The plaintiff, now 23, resided at a rental property            The plaintiff further brought expert testimony from a
owned by the defendant Charles S. for one year at              neuropsychologist and pediatrician on the matter of
the age of three. In the two subsequent years the de-          causation. The defendant Richard F. denied that the
fendant lived at another property owned by the de-             plaintiff’s condition was caused by lead poisoning
fendant landlord Richard F. Blood tests done at the            and gave a number of alternative causes. The co-
time on the plaintiff showed elevated levels of lead,          defendant did not present at trial via representation
resulting in a citation against the defendant Richard          or in person.
F. by the Monroe County Department of Health. While            After three hours of deliberation, a Rochester jury re-
in the fifth grade, the plaintiff was classified by the        turned a $221,000 verdict for the plaintiff’s future eco-
Webster School District as having a learning disability.       nomic losses, addressing the neurological
                                                               consequences of her lead poisoning and its effect on

                                                                                            Subscribe Now
Volume 28, Issue 9, September 2011
VERDICTS BY CATEGORY                                                                                                21

her future earning capacity. The jury found the defen-    Ashley Hicks vs. Charles Stern & Richard Franco. Index
dant Richard F. 100% liable for the plaintiff’s           no. 015582/2008; Judge Matthew A. Rosenbaum, 09-
damages.                                                  16-11.
                                                          Attorneys for plaintiff: Michael Ponterio, Neil
REFERENCE                                                 McKinnon, and Keith Vona of Lipsitz & Ponterio, LLC.
Plaintiff’s neuropsychology expert: Michael Santa         Attorney for defendant: Paul Garrity of Wilson, Elser,
Maria from North Tonawanda, NY. Plaintiff’s               Moskowitz, Edelman & Dicker LLP in Rochester, NY.
pediatrics expert: Robert Arp from Brooklyn, NY.          Attorney for defendant Richard Franco: Paul J. Bottari
Defendant’s neuropsychology expert: Shlomo Finnar.        of Wilson, Elser, Moskowitz, Edelman & Dicker LLP in
Defendant’s psychology expert: James Borland from         Rochester, NY.
New York, NY.

Premises Liability – Hazardous Premises – Plaintiff       come aware and advise the hospital of the unsafe
hospital employee trips and falls on raised               condition, the defendant released an instrument of
basement tile floor of hospital – Defendant               harm.
contractor allegedly negligent in failing to detect
tripping hazard.                                          The defendant countered that even assuming that it
                                                          failed to properly inspect the premises, the plaintiff
U.S. District Court, Eastern District of NY               had failed to make any argument that its actions
                                                          launched a force or instrument of harm that could
The plaintiff hospital employee contended that as         render it liable. The defendant pointed out that the
she was returning from lunch in the hospital              plain terms of the contract required it to advise the
basement with several co-employees when she
                                                          hospital of conditions of which it was aware. The de-
tripped and fell on a raised portion of the tile
                                                          fendant also pointed out that it would have a duty to
floor in the corridor, suffering injuries to her knee
and spine. The defendant contended that because           indemnify the hospital only if its negligence was the
it was a service contractor operating on property         sole cause of an incident, and denied that this provi-
owned by the employer, pursuant to an                     sion could form the basis for a third-party beneficiary
agreement with the employer, it did not owe a             claim.
duty of care to a third-party such as the plaintiff.      The court concurred with the defendant’s position
The plaintiff countered that the defendant’s failure to   and granted the defendant’s motion for summary
identify the defect and notify the employer resulted in   judgment.
the launching of a force or instrument of harm on
which liability to a third-party beneficiary could be     REFERENCE
based. The plaintiff further alleged that although the    Weissman vs. Aramark. Index no. 09-CV-1221 (DLI)
defendant did not have an affirmative duty to in-         (VVP); Magistrate Viktor V. Pohorelsky, 08-26-11.
spect the premises for an unsafe condition, the de-
fendant had a duty to become aware of unsafe              Attorney for defendant: Frank D. Thompson, II of
conditions that may cause others harm during its in-      Lewis Brisbois Bisgaard & Smith LLP in New York, NY.
spections. The plaintiff argued that in failing to be-

                              PROPERTY OWNER LIABILITY
Property Owner Liability – Alleged dangerous              plaintiff, who parked on one side each day,
garage door at single family rental home –                contended that she had no difficulties after
Plaintiff tenant lifts door with difficulty when the      moving in until the day of the incident when she
door drops precipitously, resulting in her catching       encountered great difficulties elevating the door.
it and raising it a second time – Alleged lumbar          The plaintiff contended that she was ultimately
herniation.                                               able to do so, but after she let go, the door fell
                                                          again. The plaintiff contended that she stopped it
Erie County, NY                                           and raised it again, but suffered severe back pain.
The plaintiff moved into the rental home with her
boyfriend approximately one month earlier and             The plaintiff’s mechanic contended that the springs
there was a two car garage. Each door opened              were not properly balanced, resulting in the incident.
independently and was not motorized. The                  The defendant landlady denied that the plaintiff’s

                                                               Subscribe Now
                                                                                    New York Jury Verdict Review & Analysis
22                                                                                    VERDICTS BY CATEGORY

claims should be accepted. The defendant con-              however, that before the fusion was performed, the
tended that the fact that there were no prior difficul-    plaintiff was involved in an MVA that caused cervical
ties in the approximate one-month period since she         herniations that rendered her a paraplegic.
moved in lent significant support for her position, and
                                                           This case was first tried in 1994, but was mistried by
that she lacked notice of any dangerous defect.
                                                           the court just before going to the jury. The plaintiff ob-
The plaintiff related that after raising the door a sec-   tained new attorneys who took it to the second trial.
ond time, she placed a long stick on the side to keep      $50,000 had been offered in 1994 and was still on
the door propped open and was able to drive away.          the table up to jury selection in second trial. The de-
The defendant contended that the only stick visible        mand was for the $300,000 policy.
on the plaintiff’s photographs taken shortly after the
                                                           The jury found for the defendant.
incident was a broom stick that was too short to use
to prop the door open sufficiently high to enable the
plaintiff to back out.                                     REFERENCE
                                                           Plaintiff’s orthopedic surgeon expert: James
The plaintiff contended that she suffered lumbar           Egnatchik, MD from Buffalo, NY.
herniations requiring a discectomy. The plaintiff main-
tained that because the surgery was inadequate, she        Lograsso vs. Myer. Index no. 010534/01; Judge
scheduled fusion surgery. The evidence reflected,          Deborah A. Chimes, 05-13-11.
                                                           Attorney for defendant: Laurence Behr of Barth
                                                           Sullivan & Behr in Buffalo, NY.

                                 TRANSIT AUTHORITY LIABILITY
Transit Authority Liability – Plaintiff subway patron      testified that the plaintiff stated she fell in the train
allegedly trips and falls on a broken area of              due to a wet condition on the floor. The plaintiff de-
subway station floor – Comminuted fracture of the          nied this testimony was accurate, especially in view
left knee – Semi Patellectomy.                             of the language difficulties. The plaintiff also denied
                                                           talking to the police about how the accident
Kings County, NY                                           occurred.
The plaintiff, who was in the station waiting for a        The plaintiff suffered a comminuted fracture of the
train, contended that after the train came into the        left patella. The plaintiff contended that she required
station, and as she walking to the train to board,         a semi patellectomy, or excision of the half of the dis-
she fell on a defect on the platform, causing her
                                                           tal pole of the patella. The plaintiff maintained that
to fall partly into the train door. The plaintiff, who
                                                           she will permanently suffer extensive pain and restric-
testified through a Russian interpreter, related
that after the fall, other passengers brought her          tion and need a cane to walk.
into the train. The plaintiff contended that she was       The jury found for the defendant.
later helped off the train and called the police and
an ambulance for help.                                     REFERENCE
The plaintiff introduced photographs that she              Kleyman vs. New York City Transit Authority. Index no.
claimed were the scene of the occurrence, showing          33678/08; Judge Mark I. Partnow.
a major defect in the area of the platform near the
platform’s edge. The defendant denied that the             Attorney for defendant: Mark S. Yagerman of Smith
plaintiff tripped as a result of a defect. The evidence    Mazure Director Wilkins Young & Yagerman, PC in
disclosed that it was raining at the time of the inci-     New York, NY.
dent. The defendant presented a police officer who

                                                                                          Subscribe Now
Volume 28, Issue 9, September 2011

               Supplemental Verdict Digest
                             PROFESSSIONAL MALPRACTICE
Erie County, PA                                                  The parties reached an agreement pre-trial on a
In this medical malpractice case, a family sued on               high/low. No pre-trial settlement offer was made by
behalf an infant who suffered cerebral palsy after               the defense. The high in this case was $33 million,
a botched delivery. The jury delivered a                         comprised of Hamot Medical’s $31 million policy lim-
subsequent landmark $21.6 million verdict                        its and Dr. Townsend’s $2 million limits. The low was
against the hospital. The delivery occurred on                   $5.75 million. The jury deliberated for four hours be-
November 13, 2006, when the plaintiff, 26,                       fore returning with a verdict for the plaintiff. They
presented at the Hamot Medical Center in Erie,                   found Hamot, now UPMC Hamot, 100% negligent by
Pennsylvania, for the scheduled induction of                     way of the nursing staff’s failure to monitor the infant’s
labor. The plaintiff was pregnant with twins, a girl             fetal heart rate and other vital signs. No negligence
and a boy. The nurse midwife administered                        was attributed to the co-defendants Dr. Townsend,
Cervidil to induce labor. The midwife, defendant                 M.D., and the midwife nurse.
obstetrician and the nursing staff proceeded with
the labor. However, for reasons that formed the                  REFERENCE
center of the dispute, the staff did not continually
                                                                 Graham vs. Hamot, et al. Case no. 12229-2008;
monitor both of the fetal heart rates. A nurse
                                                                 Judge Ernest J. DiSantis, Jr., 04-20-11.
delivered the first twin, a girl, while the ob/gyn
was getting into position. During the delivery of                Attorney for plaintiff: Shanin Specter of Kline Specter
the second child, the fetus shifted into a breech                in Philadelphia, PA. Attorney for defendant Hamot
position. The birth of the boy was delayed by                    Medical Center: David R. Johnson of Thomson
twenty minutes until the obstetrician and midwife                Rhodes & Cowie in Pittsburgh, PA. Attorney for
performed an emergency C-section. Thereafter,                    defendant Dr. Mark E. Townsend: Shannon Poliziani
the ob/gyn noticed signs of metabolic acidosis in                of Marshall, Dennehey, Warner, Coleman & Goggin
the infant boy and placed him in the neonatal                    in Pittsburgh, PA. Attorney for defendant Christine
ICU, where he suffered a seizure approximately                   Hornstein: Steven J. Forry of Marshall, Dennehey,
two hours later. He was later diagnosed with
                                                                 Warner, Coleman & Goggin in Pittsburgh, PA.
cerebral palsy brought on by oxygen deprivation.

New London County, CT                                            REFERENCE
In this medical malpractice matter, the plaintiff                Karla Rosa vs. Anesthesia Associates of New London.
alleged that the defendant anesthesiologist was                  Case no. KNL-CV-08-5006331-S; Judge Emmet
negligent in failing to use due care during the                  Cosgrove, 05-13-11.
administration of anesthesia to the plaintiff which
resulted in the plaintiff suffering acute respiratory            Attorney for plaintiff: Sean K. McElligott of Koskoff
distress syndrome and becoming comatose. The                     Koskoff & Bieder, P.C. in Bridgeport, CT. Attorney for
defendant denied that there was any deviation                    defendant: Robert Cooney of Williams Cooney &
from acceptable standards of care.                               Sheehy in Trumbull, CT.

The matter was tried and at the conclusion of the
trial, the jury returned its verdict in favor of the plaintiff
and against the defendant. The plaintiff was awarded
the sum of $10,500,000 in damages.
     The following digest is a composite of additional significant verdicts reported in full detail in our companion
     publications. Copies of the full summary with analysis can be obtained by contacting our Publication Office.

                                                                     Subscribe Now
                                                                                            New York Jury Verdict Review & Analysis
24                                                                      SUPPLEMENTAL VERDICT DIGEST

                                     PRODUCTS LIABILITY
Miami-Dade County, FL                                    ufacturer 20% negligent and the decedent 80%
This was a products liability action against the         comparatively negligent. The plaintiff was awarded
manufacturer of a ladder from which the                  $1,570,000 in damages, which was reduced to a net
decedent fell and sustained a fatal head injury.         award of $314,000. Post-trial motions are currently
The plaintiff alleged that the ladder was                pending.
defectively designed in that the side pins did not
lock properly, thereby causing it to retract under       REFERENCE
the decedent’s weight. The plaintiff also alleged        Coba vs. Tricam Industries, Inc. Case no. 07-29041
that the defendant manufacturer was negligent in
                                                         CA 21; Judge William Thomas, 08-26-10.
the manner in which it manufactured the ladder.
The defendants in the case also included Home            Attorneys for plaintiff: Orlando D. Cabeza and Peter
Depot where the ladder had been purchased. The           L. DeMahy of DeMahy, Labrador, Drake, Payne &
defendants maintained that the accident was              Cabeza in Coral Gables, FL. Attorneys for defendant:
caused by the decedent’s own negligence in               Jeffrey A. Mowers of Pyszka, Blackmon, Levy,
failing to properly lock the ladder before climbing      Mowers & Kelley in Miami Lakes, FL, and Paul Kaulus
it.                                                      (pro hac vice) in Chicago, IL.
The jury found that the ladder in question was not de-
fective, but found that the defendant manufacturer
was negligent. The jury assessed the defendant man-

Morris County, NJ                                        revved the engine with the throttle, the track
This case involved a 61-year-old plaintiff who was       broke and was propelled out of the rear and
visiting a friend in upstate New York for a              through the plaintiff’s right leg.
weekend of snowmobiling. The plaintiff                   The jury awarded $1,500,000 for pain and suffering.
contended that the snowmobile was defective for
the failure to warn against the common practice
of cleaning carbon build up on the spark plugs
while revving the engine as the back end of the          Mohr vs. Yamaha Motor Co. Docket no. MRS-L-2068-
snowmobile was held up. The plaintiff contended          07; Judge Robert Brennan, 04-14-11.
that as he and another individual were holding up        Attorney for plaintiff: Herbert M. Korn of Law Offices
the back end of the vehicle while the owner
                                                         of Herbert M. Korn in Morristown, NJ.

                                                                                     Subscribe Now
Volume 28, Issue 9, September 2011
SUPPLEMENTAL VERDICT DIGEST                                                                                       25

                         MOTOR VEHICLE NEGLIGENCE
Bergen County, NJ                                       including a fusion in the thoracic area, and the
In this action, the femal plaintiff in her mid-20s,     insertion of a V.A.C. therapy unit to the lower leg,
contended that after she had crossed more than          and contended that she may well require
half of the roadway containing one travel lane in       additional surgery in the future.
each direction, she was struck by the left side view    The case settled prior to trial for $6,000,000.
mirror of the bus and pulled under the left front
wheel of the bus. The plaintiff contended that as a
result, she suffered a burst fracture in the thoracic
spine, thoracic and lumbar compression fractures,       Poplawski vs. Phipps, et al. Docket no. BER-L-3516-09,
a severe degloving injury to the lower left leg,        02-21-11.
bowel and bladder incontinence that resolved            Attorney for plaintiff: Eric D. Katz of Mazie Slater Katz
after some months, and PTSD. The plaintiff has
                                                        & Freeman, LLC in Roseland, NJ.
already undergone some eight major surgeries,

Miami-Dade County, FL                                   The case was settled for a structured settlement val-
The plaintiff was a 19-year-old male who was            ued at $4,900,000 prior to trial.
riding a bicycle across a Perrine, Florida
intersection at 3:19 a.m. in 2006 when he was           REFERENCE
struck by a tractor trailer driven by the defendant     Tiger vs. Defendants. Case no. 09-07908; Judge Peter
truck driver and owned by the defendant trucking        R. Lopez, 04-01-11.
company. The plaintiff alleged that the defendant
truck driver negligently operated the truck and         Attorney for plaintiff: Joseph Slama of Krupnick,
could have avoided impacting the plaintiff’s            Campbell, Malone, Buser, Slama, Hancock, Liberman
bicycle. The defendants argued that the tractor-        & McKee in Fort Lauderdale, FL. Attorney for plaintiff:
trailer was proceeding with a green light, within       Frank Toral of Toral & Associate in Fort Lauderdale,
the legal speed limit, and that the plaintiff           FL.
suddenly rode his bicycle into the path of the
oncoming truck. The defendants maintained that
the truck driver was not negligent and could not
have avoided the collision.

Queens County, NY                                       suffered fractures to the left tibial plateau and
The plaintiff pedestrian, age 25, contended that        proximal fibular shaft and required an open
after she had walked halfway across the                 reduction and internal fixation. The plaintiff
uncontrolled intersection, and near the area            contended that the large scar below the knee is
where the crosswalk would have been present, if         permanent. The plaintiff also suffered a lacerated
painted, and as she was standing on the double          spleen, fractured ribs, bilateral occipital condyle
yellow line waiting for vehicles traveling from her     fractures and an avulsion injury at the left alar
right to pass, she was struck by the defendant          ligament. These injuries resolved without surgery.
who was approached from her left. The plaintiff

                                                            Subscribe Now
                                                                                  New York Jury Verdict Review & Analysis
26                                                                     SUPPLEMENTAL VERDICT DIGEST

The case settled prior to trial for $1,100,000.        Attorney for plaintiff: Ann Ball of A Ball PC in
                                                       Commack, NY.
Steward vs. Levy. Index no. 27669/10; Howard
Beldock (mediator), 06-11-11.

Philadelphia County, PA                                After a six-day trial, the jury found the defendant
The male plaintiff in his late 30s was driving a       100% negligent and awarded the plaintiff $900,000
roll-off truck (used to transport dumpsters) on the    in damages. The case is currently on appeal.
Blue Route when the collision giving rise to his
action occurred. The plaintiff alleged that a          REFERENCE
tractor-trailer, driven by the defendant truck         Thompson vs. Lau, et al. Case no. 09-03-03522;
driver and owned by the defendant transportation       Judge Nitza I. Quinones Alejandro, 12-10-10.
company, negligently changed lanes and collided
with his truck. The defendants took the position       Attorney for plaintiff: Bruce L. Neff of Neff &
that it was the plaintiff who negligently changed      Associates in Philadelphia, PA.
lanes and caused the accident. The defense also
contended that the impact did not cause the
injuries alleged by the plaintiff.

                                       PREMISES LIABILITY
U.S. District Court, Newark District of NJ             The case settled in 2010 for $1,500,000 from the
In this case, the plaintiff contended that the         Postal Service and $500,000 from the co-defendant.
defendant Postal Service negligently failed to         Magistrate Judge Patty Shwartz approved the alloca-
adequately attend to icy conditions stemming           tion of the proceeds in February 2011 as follows:
from alternate melting and freezing temperatures       $1,064,546 to the estate, $25,000 each to the dece-
that occurred in the three-day period since the        dent’s three children, and $25,000 on the Portee
last snow event. The plaintiff also contended that     claim. Plaintiff’s counsel relates that another $260,581
the co-defendant automobile dealership, situated       was used to satisfy liens that were reduced from ap-
next to and uphill from the post office, negligently   proximately $1,000,000.
failed to clear snow and ice from and around of
vehicles it kept parked on the sidewalk. The           REFERENCE
plaintiff maintained that the 78-year-old
decedent, who was taking Coumadin, slipped and         Fogelson vs. U.S.A., et al. Docket no. 2:07-CV-01016-
fell, suffering a closed head trauma and subdural      ksh-ps; Judge Pamela Nadell, Esq. (mediator), 02-10-
hematoma. The plaintiffs also included the             11.
decedent’s son, approximately 40, who was sitting      Attorney for plaintiff: Francis M. Smith of FM Smith,
in his father’s car and saw the incident, and who      PC in Mountainside, NJ.
made an emotional distress claim under Portee vs.

                                                                                    Subscribe Now
Volume 28, Issue 9, September 2011
SUPPLEMENTAL VERDICT DIGEST                                                                                     27

Kings County, NY                                        headaches and extensive difficulties with memory
This case involved a plaintiff, in her mid 50s, who     and concentration. The plaintiff further contended
was a passenger in a car that was brought to the        that she suffered a rotator cuff tear to the right,
defendant’s car wash and who slipped and fell as        dominant shoulder that required arthroscopic
she was exiting the car. The plaintiff contended        surgery and a cervical herniation for which
that although the defendant should be required to       surgery is indicated.
have the area for individuals exiting vehicles          The jury found the defendant 100% negligent and
delineated as behind the “zipper drain” that is         awarded $1,480,000.
required to separate solvents from water before it
enters the water system, it did not do so because
of lack of space and that it should have placed         REFERENCE
safeguards, such as rubber mats and/or warning          Rogers vs. Hi-Tek United Corp. Index no. 014717/08;
signs, immediately outside of the point patrons         Judge Kenneth P. Sherman, 02-04-11.
would be exiting vehicles. The plaintiff maintained
                                                        Attorney for plaintiff: Herbert Rodriguez, Jr. of
that as she exited, she slipped and fell. The
                                                        Schwartz Goldstone & Campisi, LLP in New York, NY.
plaintiff contended that she suffered a closed
head injury that caused a mild TBI manifesting in

Bexar County, TX                                        Attorneys for plaintiff Edward Schmidtka: Rudy A.
In this action for active negligence and premises       Garza and Stephen F. Lazor of Garza & Lazor, P.C. in
liability, the plaintiff alleged that the defendants’   San Antonio, TX. Attorneys for defendant Greatwide
combined negligence caused him to incur severe          Cheetah Transportation, LLC and Michael McCurry:
crush injuries necessitating amputation. The            Michael B. Langford (Pro Hac Vice) of Scopelitis,
defendants generally denied the allegations and         Garvin, Light, Hanson & Feary, P.C. in Indianapolis,
claimed that the plaintiff was guilty of contributory   IN, and Darrell F. Smith of Ball & Weed in San
negligence.                                             Antonio, TX. Attorney for defendant DPT
                                                        Laboratories, Ltd., Defendant and Third-Party
Ultimately, this matter settled at mediation with a
                                                        Plaintiff: Jennifer Gibbons-Durbin of Allen, Stein &
$1,276,000 recovery for the plaintiff.
                                                        Durbin, P.C. in San Antonio, TX. Attorney for
                                                        defendant DCI, Inc. (Third-Party Defendant): Mark S.
REFERENCE                                               Strandmo of Brock Person Guerra Reyna P.C. in San
Edward Schmidtka vs. DPT Laboratories, Ltd.,            Antonio, TX. Attorney for defendant Gilbert
Greatwide Cheetah Transportation, LLC and Michael       Industries, Inc. d/b/a GS Stainless (Third Party
McCurry. Case no. 2009-CI-13588; Judge Karen            Defendant): Sean M. Crowley of Thompson Coe
Pozza, 01-28-11.                                        Cousins & Irons LLP in Austin, TX.

                                                            Subscribe Now
                                                                                New York Jury Verdict Review & Analysis
28                                                                         SUPPLEMENTAL VERDICT DIGEST

                          ADDITIONAL VERDICTS OF INTEREST
                                        Employment Law
Suffolk County, MA                                         The jury found no discrimination against the first plain-
The plaintiffs, who worked for the defendant               tiff, but did find retaliation against her and awarded
district court probation office, one as an assistant       her $6,000 in damages, as well as $500,000 in puni-
chief probation officer and the other as a                 tive damages. No discrimination or retaliation was
probation officer, contended that the defendants,          found against the second plaintiff and the jury
a chief probation officer and the court for which          awarded her no damages.
he worked, discriminated against the plaintiffs on
the basis of gender and race. The plaintiffs and           REFERENCE
three other female employees had previously filed
                                                           Brown, et al. vs. O’Brien, et al. Case no. SUCV2007-
a written complaint against the defendant chief
                                                           03552, 02-09-11.
and the probation office for racial and gender
discrimination and retaliation. A six month                Attorney for plaintiff: Beth R. Myers of Rogers,
investigation into the charges by the trial court’s        Powers & Schwartz LLP in Boston, MA.
Affirmative Action/Equal Opportunity Office
resulted in a draft report substantially admitting
the allegations made by the plaintiffs.

Dallas County, TX                                          ther use for. Worldwide Express further accused DHL of
This multi-million dollar case saw the successful          theft of trade secrets, specifically through solicitation
suit of a global shipping firm by one of its               the plaintiff’s international customers.
resellers. The reseller received over $7 million in        On June 2, 2011, after nine trial days and a day and
a verdict for fraudulent inducement and theft of
                                                           a-half of deliberation, the jury returned a verdict for
trade secrets. The jury additionally rejected the
                                                           the plaintiff, finding that Worldwide Express had been
defendant’s $28 million in counterclaims.
Worldwide Express Operations is a domestic                 induced to amend their contract by way of fraud.
reseller of shipping services based in Dallas.             The jury awarded $5.1 million for past and future lost
Worldwide Express, the plaintiff in this case, had         profits, as well as $2.02 million in damages for DHL’s
been in a nine-year contract since 1999 with the           misappropriation of trade secrets. The jury further re-
defendant, DHL Express, acting as a sales force            jected DHL’s request for $28 million in damages for
for the defendant shipping company. The contract           breach of payment guarantee.
was amended in the fall of 2008 to add an
additional two years to that contract. However,            REFERENCE
the contract also involved the addition of a               Worldwide Express Operations LLC, et al. vs. DHL Ex-
termination clause. Said clause would allow DHL            press (USA) Inc. Case no. DC-08-15314; Judge Craig
to terminate the contract with only 90 days notice.        Smith, 06-02-11.
On November 10, 2008, less than 30 days after
the signing, DHL announced that it was                     Attorney for plaintiff: Geoffrey S. Harper, Steve
terminating its domestic shipping service and its          Stodghill, Timothy Devlin, Scott C. Thomas, and John
contract with Worldwide Express.                           C.C. Sanders of Fish & Richardson in Dallas, TX.
Worldwide Express filed suit in the 192nd District Court   Attorney for plaintiff DHL Express (USA) Inc.: Michael
of Dallas County for fraudulent inducement, naming         H. Collins of Locke Lord Bissell & Liddell LLP in
DHL as the defendant. DHL was accused of defraud-          Dallas, TX. Attorney for defendant Worldwide
ing Worldwide Express by way of inducing them to           Express Operations LLC: Tom Melsheimer of Fish &
sign a contract for services they would have no fur-       Richardson in Dallas, TX.

                                                                                         Subscribe Now
Volume 28, Issue 9, September 2011
SUPPLEMENTAL VERDICT DIGEST                                                                                            29

Philadelphia County, PA                                      After a trial of almost three weeks, the jury found
This case involved allegations that fraud was                fraud, intentional interference with contractual rela-
committed by the defendants, Bristol Township, its           tions and breach of the duty of good faith and fair
insurance broker and several individual insurance            dealing against the insurance broker and two of its
agents, involved in issuing the township’s                   employees. The jury awarded $250,000 to each
automobile insurance coverage. The plaintiffs                plaintiff for a total combined verdict of $500,000. The
were two Bristol Township police officers who                award included $55,000 in economic damages and
were injured in the line of duty by an uninsured             $195,000 in emotional distress damages to each
driver. The plaintiff alleged that the defendants            plaintiff. The court dismissed the plaintiffs’ claim for
committed fraud, as well as intentional                      punitive damages. Post-trial motions are pending.
interference with contract and breach of their duty
of good faith and fair dealing by back-dating the            REFERENCE
township’s UM/UIM waiver forms in an attempt to
prevent the plaintiffs from recovering uninsured             Egan vs. USI MidAtlantic, Inc. Case no. 060703444;
motorist benefits. The plaintiffs’ uninsured                 Judge Gregory E. Smith, 03-16-11.
motorist claims were settled after it was                    Attorneys for plaintiff: Mark W. Tanner and Peter M.
discovered that the waiver forms had been back-              Newman of Feldman Shepherd, Wohlgelernter,
dated and were, therefore, invalid. The plaintiffs           Tanner, Weinstock & Dodig, LLP, in Philadelphia, PA.
sought economic damages for an 11 month delay                Attorneys for plaintiff: Gerald A. McHugh, Jr. and
allegedly caused by the defendants’ fraud. The
                                                             Daniel Bencivenga of Raynes McCarty in
plaintiff also sought compensatory damages for
                                                             Philadelphia, PA.
emotional distress and punitive damages based
on the defendants’ actions. The defendants
argued that Bristol Township did not want UM/
UIM coverage and did not pay for such coverage.

                                                  Jones Act
U.S. District Court, District of MA                          REFERENCE
In this admiralty matter, the plaintiff brought suit         James B. Crook vs. Warren Alexander d/b/a Hawk
under the Jones Act for injuries he sustained                Scallop Company, Inc. Case no. 1:09-CV-10682;
when he slipped and fell as a result of oil on the           Judge Rya W. Zobel, 01-28-11.
deck of the defendant’s boat. The defendant
denied the incident and disputed any liability to            Attorneys for plaintiff: Carolyn Latti and David
the plaintiff.                                               Anderson of Latti & Anderson in Boston, MA.

The matter was tried and the jury deliberated for a lit-
tle over three hours before returning its verdict in favor
of the plaintiff and against the defendant. The jury
awarded the plaintiff the sum of $1,650,000 in

                                                                 Subscribe Now
                                                                                       New York Jury Verdict Review & Analysis
30                                                                          SUPPLEMENTAL VERDICT DIGEST

Fort Bend County, TX                                         tion, $20,000 in mental anguish damages, and
In this case, the plaintiff, 27, the son of a Chief          $1,030,000 in punitive damages ($30,000 against the
Deputy of the Fort Bend County Sheriff’s Office,             reporter, and $1,000,000 against the West Fort Bend
sued a local newspaper and one of its reporters              Star on a theory of “imputed malice”).
for defamation. The defendants denied that the
article was false and defamatory; they contended             REFERENCE
that the article concentrated on public figures              Wade Brady vs. LeaAnne Klentzman and Carter Publi-
rather than the plaintiff, and therefore did not             cations d/b/a The West Fort Bend Star. Case no. 03-
damage his reputation.
                                                             CV-129531; Judge Thomas R. Culver III, 05-06-11.
After eight days of trial, the jury returned a verdict for
                                                             Attorney for plaintiff Wade Brady: Kinan H. Romman
the plaintiff, finding the article as a whole to be false
                                                             of Ahmad, Zavitsanos & Anaipakos, PC in Houston,
and defamatory as to the plaintiff, as well as certain
                                                             TX. Attorney for defendant: John K. Edwards of
individual (but unspecified) statements within the arti-
                                                             Jackson Walker LLP in Houston, TX.
cle. The jury awarded $30,000 in damages to reputa-

                                     Negligent Supervision
Broward County, FL                                           There was an issue as to whether the plaintiff’s former
This case involved a horrific and hateful acid               husband would have been listed as a Fabre defen-
attack which left the female plaintiff disfigured            dant on the verdict form, as the husband was the de-
and blinded in one eye. The attacker was                     fendant’s employee. In the end, the case was of
sentenced to ten years in prison for aggravated              such a volatile nature and the plaintiff’s injuries so
battery and was not a party to the civil action. The         gruesome, that a $1.75 million settlement was
plaintiff’s case hinged on the culpability of the            reached with a minimum of publicity in order to
defendant homeowner association and property                 avoid trial.
management company for alleged negligent
supervision and retention of its employees. There            REFERENCE
was alarming evidence that the plaintiff’s
husband, her assailant and their supervisor                  Lambert vs. Defendants. Case no. 04-009433; Judge
routinely engaged in drinking sessions at work               David Krathen, 10-20-10.
and that extramarital sexual activity occurring at           Attorneys for plaintiff: Lou Battista and Yeemee Chan
the workplace was accepted, if not facilitated. The          of Toral, Garcia & Battista in Fort Lauderdale, FL.
defendants maintained that the attack upon the
plaintiff was not foreseeable and that it had acted
appropriately in terminating the attacker prior to
the incident.

                                                                                          Subscribe Now
Volume 28, Issue 9, September 2011
SUPPLEMENTAL VERDICT DIGEST                                                                                    31

                        Transit Authority Negligence
Bronx County, NY                                      The jury found the defendant 60% negligent, the
In this action, the 51-year-old plaintiff contended   plaintiff 40% comparatively negligent and rendered
that the defendant’s train operator negligently       a gross award of $10,006,477.
failed to make adequate observations and
activate the emergency brake when he had fallen       REFERENCE
onto the tracks some 420 feet from the point the      Simmons vs. MTA and New York City Transit Authority.
train entered the station. The plaintiff contended    Index no. 309291/08; Judge Diane Lebedeff, 05-20-
that as a result, he was run over by the train that   11.
came to rest as he was under the third car. The
plaintiff contended that he suffered the              Attorneys for plaintiff: Alan Shapey, Gerard Lucciola
amputation of the middle three fingers of the         and Derek Sells of Lipsig Shapey Manus &
right, dominant hand, and severe bilateral crush      Moverman, PC in New York, NY.
injuries to the legs, ultimately necessitating the
above-the-knee amputation of the left leg and the
below-the-knee amputation of the right leg.

                                                          Subscribe Now
                                                                               New York Jury Verdict Review & Analysis
32                                                                                        NOTES

                                     ATTENTION VALUED SUBSCRIBER
 Jury Verdict Review Publications is now offering our subscriptions in two formats,
 hardcopy only or hardcopy with electronic PDF edition including an online search
 article discount along with a client invoice generator for all search articles purchased
 from our website. All annual subscriptions purchased online include 15 free online search
 articles along with an annual expert index.
 The cost of the electronic PDF and online search article discount package depends on the
 number of litigators in your firm as each litigator will be able to download their own per-
 sonal PDF edition and generate client invoices for all online search article purchases.
 Please go to our website at to register, click on the "Subscribe Now" tag
 and select the number of litigators in your firm to get started.
 Online subscription benefits include:
 - 15 free search article credits along with an expert witness index with your paid annual
 - PDF pricing includes monthly electronic editions for all litigators in the firm as well as on-
 line search article discounts.
 - Client invoice generator for all article purchases
 - For your convenience, we also have available monthly billing by credit card for
 subscriptions to any of our publications (monthly billing does not include the 15 search ar-
 ticle credits or the annual expert witness index).
 Questions? Call Gary at 973-376-9002 or email
 Discounts and credits are subject to change.

                                                                          Subscribe Now
Volume 28, Issue 9, September 2011

To top