Category Archives: Trial Practice

Damages Award for Meat Slicer Injury Modestly “Sliced” By Comparative Fault (PA)

Posted on by

A delivery person injured by the blade of a disassembled meat slicer recently received over $1.5 million from a Pennsylvania jury.  In Fuller v. Easton Healthcare Services Group, Plaintiff, a delivery person for a knife-sharpening and appliance service, was picking up a meat slicer that had been loaned to the Easton Health & Rehabilitation Center.  When Plaintiff arrived to retrieve the loaner slicer, an employee of Healthcare Services Group loaded the disassembled slicer onto a cart and wheeled the cart to Plaintiff’s delivery van.

As a result of the slicer’s disassembly, the blade guard to the slicer had been removed and placed on a lower shelf of the cart, underneath the slicer itself.  Subsequently, the employee lost his balance while attempting to load the slicer into Plaintiff’s delivery van, and in her effort to assist the employee, Plaintiff reached over top of the slicer and lacerated her right forearm, severing nine tendons, an artery, and two nerves.  She underwent emergency surgery to reattach the severed nerves and tendons, as well as re-establish blood flow to the severed artery.  Despite physical therapy, Plaintiff needed multiple surgeries to remove nerves from her ankle and implant them into her hand, an index finger amputation, and a fusion of her thumb.

Plaintiff sued Healthcare Services Group alleging that the removal of the blade guard from the slicer, the failure to reassemble the slicer, and the assumption that Plaintiff would notice that the slicer was not reassembled created an unsafe condition that could foreseeably cause harm.  Healthcare Services Group countered that, because it was Plaintiff’s job to retrieve the slicer, defendant was not responsible for placing the blade guard on the slicer, and that Plaintiff’s failure to notice that the blade guard was missing rendered her contributorily negligent.

Ultimately, the jury found that Plaintiff was 13% liable and Healthcare Services Group was 87% liable. Thus, Plaintiff’s damages, which included medical costs, lost earnings, pain and suffering, and a loss of consortium claim by her husband, were only reduced from $1,868,987.25 to $1,627,318.91.  As such, the jury obviously felt the defendant’s handling of the meat slicer was the issue, as opposed to plaintiff’s mishandling.  This case present the danger of a defense strategy of placing all the blame on a likely sympathetic plaintiff.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Pro-defense Damages Verdict Set Aside as a “shock one’s sense of justice” (PA)

Posted on by

A Plaintiff who was denied pain and suffering damages in a 2015 jury verdict was recently granted a new trial on non-economic (pain and suffering) damages by the Pennsylvania Superior Court.   In Zielke v. Mullen,  the appellate court reversed a Delaware County Court of Common Pleas’ order denying Plaintiff’s post-trial motion for a new trial relating to her non-economic damages.

The plaintiff suffered a fracture in her left foot when she fell while descending stairs at the defendants’ home.  Plaintiff’s injury required surgery and the removal of the fractured bone, followed by the use of a recuperative boot for several months after the surgery.  The defendants had removed the handrail on the staircase in order to paint, and had neglected to reinstall the handrail before plaintiff and her husband attended a wedding reception at their home.  The absence of a handrail contributed to the fall, and a jury determined that the defendants’negligence was a cause of plaintiff’s injuries.

The jury awarded plaintiff approximately $13,000 in damages for past and future medical expenses, as well as lost earnings.  However, the jury awarded zero damages for non-economic loss (pain and suffering, embarrassment/humiliation, loss of life’s pleasures, and disfigurement).

Following the verdict, Plaintiff’s motion for additur, or in the alternative, a new trial solely on the issue of non-economic loss, and the trial court denied the motion.  In reversing the trial court’s denial, the Superior Court of Pennsylvania determined that Plaintiff’s injuries were serious enough that they were “of the type that natural and normally cause pain and suffering.”  The Superior Court determined that the jury verdict should be set aside because it “clearly appear[ed] from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff [and] is so contrary to the evidence as to ‘shock one’s sense of justice,’” citing Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001).

This was certainly a frustrating decision for defendants and their attorneys, who appear to have done “too good” of a job defending the damages claimed against them.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

2nd Department Cautions against Over-reliance on… 2nd Department?

Posted on by

In New York, a motion for summary judgment is subject to stringent rules pertaining to support for the motion, timing, and the evidentiary burden of the parties. Pursuant to CPLR §3212 a motion must be supported by evidence in admissible form, and by someone with personal knowledge. An attorney affirmation alone will not suffice.

In Zhubrak v. Petro, 2017 NY Slip Op 01593 (2d Dept. 2017), a jury trial had found that the defendant did not negligently operate his vehicle, and as such, was not liable.  The plaintiff moved to set aside the verdict, and that motion was granted.  After the case was sent back to the Supreme Court for a new trial on liability, plaintiff moved for summary judgment based on the Second Department’s decision for a new trial, attached to an attorney affirmation. Plaintiff failed to provide an affidavit from someone with personal knowledge or any other admissible evidence.

The Appellate Division found that the Supreme Court erred in granting plaintiff’s motion for summary judgment partially due to the fact that plaintiff failed to submit any evidence in admissible form. Ironically, the 2nd Department chastised the plaintiff, due to plaintiff’s over-reliance on the 2nd Department’s prior decision.   That decision does not, on its own, constitute admissible proof. Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Appellate Division Reverses Trial Court’s decision to Set Aside Verdict in Asbestos Litigation (NY)

Posted on by

Asbestos litigation is a complex and, if you were friends with former Speaker of the New York State assembly and convicted felon Sheldon Silver, lucrative field.  Chances are that you have seen (in New York, at least) commercials for Weitz & Luxenberg “victims of mesothelioma, the lethal cancer linked to asbestos exposure, claiming the billions set aside” for liability.  Unfortunately, construction and demolition workers are exposed to an increased risk of asbestos exposure.  Plaintiff’s firms tout the high settlement or verdict numbers, often in the aforementioned commercials. Who bears liability for exposure is often a particularly fact sensitive matter.

In a recent decision the Matter of New York Asbestos Litigation – Phyllis Brown, as Administratrix of the Estate of Harry E. Brown v. Bell & Gossett Company and Consolidated Edison of New York, the Appellate Division, First Department, reversed the trial court’s order granting defendant Consolidated Edison’s post-trial motion to set aside the verdict against it and dismiss the complaint, reinstated the verdict and directed a new trial on damages for the loss of consortium.  The Appellate Division found that the trial court improperly set aside the plaintiff’s verdict on the Labor Law Section 200 claim against Con Edison.  The evidence at trial demonstrated that Con Edison had the “authority to control the activity bringing about the injury.”

In 1964-65 the decedent was employed as an asbestos insulation installer and his employer was subcontracted by the three major contractors at defendant Con Edison’s power plaint in Ravenswood, NY.  The contracts between Con Edison or its general contractor and the three contractors required that each contractor provide a foreman in charge of its specific work and that Con Ed would inspect all contractors’ work periodically to ensure compliance with contract specification as well as to enforce general safety at the site.  The contracts further provided that whenever work generated harmful dust, the contract was obligation to install and maintain equipment that protected the plant and workers against such dust.  Decedent was exposed to asbestos containing dust while working at the Ravenwood site, where ventilation was inadequate and the workers did not wear masks.  He further testified that he took his work instruction from his employer’s foreman, and never spoke with or received any direction from anyone from Con Ed while at the site.  Con Ed’s engineers and construction managers testified that they monitored the work to ensure that the contractors performed their work productively, safely and according to a preset schedule.   The employer’s foreman tested that the general contractor would coordinate the trades through a schedule and that job specification would have been approved by Con Ed.

The Appellate Division held that Con Edison had the ability to prevent the hazed ultimately causing the plaintiff’s injury, namely, the application of asbestos-containing material.  Con Edison’s specifications affirmatively requested the use of hazardous asbestos contain insulation materials and Con Edison monitored work for compliance with those specifications.   The presence of Con Ed personnel at the work site to monitor the progress of the work under a preset schedule, and to inspect the project to confirm the work was performed in accordance with the contract specifications, as well as Con Ed’s authority to enforce general safety standards was indicative of a general right of inspection, not supervision control.

The trial court’s overturning the jury verdict is unusual and drastic.  Based on that, perhaps it is not surprising that, in another unusual and drastic act, the Appellate Division ultimately reversed the trial court and reinstated the verdict.   To be sure, post-verdicts settlements arise because of situations just like this one.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Settling Defendant Charge? Not for Pre-Trial Settlement. (NJ)

Posted on by

When a party settles before trial, remaining defendants often seek a settling co-defendant charge while plaintiffs object on the grounds the charge is prejudicial to their case.  In a reported trial court opinion, Judge Rea explains why the charge is inappropriate when the jury has never seen the settling defendant.

In Hernandez v. Chekenian, a passenger in the second car of a multi-vehicle accident sued all three drivers for personal injuries.  All agreed that the driver of the first car in the line-up had no liability and was dismissed before trial. The insurer for the driver of the second car in which plaintiff was a passenger settled before trial for the full policy limit of $15,000 because the insured driver could not be located.  Whereupon, counsel for the defendant driver of the third car requested the Settling Defendant Model Jury Charge.

Judge Rea first acknowledged the well-established rule that neither judges nor lawyers are witnesses.  He then posited that, “When a judge gives a jury a settling defendant charge that judge is essentially testifying.”  Such a statement could be more heavily weighted by a jury who would not be given full disclosure on the terms of the settlement. This could be prejudicial to a plaintiff.

The purpose of the settling defendant charge is essentially to explain the absence of a defendant who has begun a trial but settled during it.  In such a case, the jury is entitled to some explanation of what happened with that defendant.  However, if the jury never sees the party, there is “no legitimate reason that a jury needs to be told that there was another defendant(s) who settled their dispute(s) by paying an amount of money.”

While the judge determined that a jury should not be advised of a pre-trial settlement, this does not mean that a settling tortfeasor’s negligence may not be apportioned by a jury.  If a defendant at trial establishes a prima facie case of negligence against a settling co-defendant, that settling defendant is included on the verdict sheet to allow the jury to apportion fault among the parties.  The jury then determines the percentage of fault for each party, including any comparative negligence attributed to the plaintiff.  However, Judge Rea commented, “Nothing about this analysis even remotely suggests that the jury should be told that the settling party paid money to the plaintiff.”

In dicta, Judge Rea opined, “… perhaps it would be more prudent to simply tell the jury that the particular defendant is no longer part of this case and that they (the jury) should not be concerned with nor speculate about the reasons that is so.”  Although this decision is not binding on other trial judges, as a reported decision, we can anticipate this argument will be persuasive to other trial judges.

Thanks to Ann Marie Murzin for her contribution.

For more information contact Denise Fontana Ricci at .

Defective Holster Shoots Manufacturer in the Foot (PA)

Posted on by

A Philadelphia jury awarded a police officer plaintiff $2.6 million after he was injured by an allegedly defective gun holster.  Pennsylvania State Trooper, Jesse Oleksza was injured when his gun discharged into his leg, while in his holster.  According to his pretrial memo, Oleksza was getting his gym bag from out of his police car when his Glock 37 pistol went off.  It was held in a Gould & Goodrich holster.

Oleksza alleged that a foreign object had managed to lodge itself in the holster due to a defect and thus caused the pistol to fire.  An internal affairs investigation cleared Oleksza of any wrongdoing and found that an object like a key could discharge the firearm if inserted into the holster and trigger area.  Oleksza contended the holster was defective for failing to properly protect the trigger and sought recovery based on negligence, strict liability, and breach of implied warranties.

 

Gould & Goodrich contended that warnings on the holster stated that users should ensure that the trigger area is kept clear and to make sure that foreign objects stay out of the holster.  The manufacturer also contended that Oleksza was aware of the danger of letting foreign objects into his holster from his training.  In addition, a state investigation found no holster defect, and they argued that it is impossible to design a holster that prevents all objects from entering it.

Plaintiff’s counsel also presented ten state troopers to testify in the case as to the defectiveness of the holster.  The jury was also shown pictures of other holsters that showed more trigger protection than the Gould & Goodrich one.  The jury was asked to decide whether the defect was a cause of harm under the consumer expectations test and the risk utility test, and they found that the holster was defectively designed and manufactured.

This case displays the potential big payouts of products liability cases, even if there are numerous warnings and training for a product.  We suspect the testimony of the ten other officers were persuasive to the jury.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Even Soft Tissue Injuries Can Prompt Recovery at Trial (PA)

Posted on by

A Philadelphia jury awarded a plaintiff a $40,000 verdict in a motor vehicle accident this past summer.  On October 7, 2013, the plaintiff, Brian Johnson, Jr., was stopped at a red light in West Philadelphia when he was struck from behind by the defendant, Tyra Elam.  The parties stipulated to negligence and the case was tried on causation and damages.

Johnson attended more than a dozen physical therapy sessions for lower back pain he alleged was a result of the accident.  He eventually stopped with physical therapy due to seizures.  He then had an MRI of his back, which showed bulges at various discs.  Johnson also underwent additional tests, which showed injuries to nerves in his spine.  He went to a pain specialist who administered an epidural injection and concluded that Johnson’s injuries were caused by the accident and that he suffered from serious bodily impairment.   Johnson’s physician recommended future medical treatment totaling $10,000 annually with a $50,000 procedure.  The defense presented a radiology expert who testified that Johnson’s bulging discs were degenerative and were not related to the accident.  After deliberation, the jury found that Elam’s negligence was the cause of Johnson’s injury.

This case illustrates that claims from even minor motor vehicle accidents can still result in plaintiff’s verdicts.  Here, the injuries, and resulting judgment, were modest.  But we all know that cases like this one can often result in surgery — and exposure in the six or seven digit realm.  The morale is even small claims don’t always remain small forever. Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Homeowner’s Ice Removal Efforts Sufficient to Bar Recovery (PA)

Posted on by

In Sirchio v. Macdougal, the Montgomery County Court of Common Pleas addressed a few common issues that arise in sidewalk slip and fall cases during the cold winter season.

The plaintiff  fractured his ankle when he slipped on an icy patch of sidewalk while walking home one January evening in Conshohocken.  The plaintiff sued the defendant homeowner and alleged that the defendant was negligent in the maintenance of the property, because the defendant’s drainage system was improperly configured and leaked water onto the sidewalk.  The plaintiff also alleged that the area in front of the defendant’s home was not sufficiently lit and that the defendant should have known that the combination of the leaky water and poorly lit area created a hazardous, icy condition in the cold winter months.

The defendant countered that he was in fact aware of the propensity for dangerous icy conditions on the sidewalk; and that he exercised extra care in the winter by shoveling his walk, breaking up the snow and ice with a shovel, and applying materials to melt the ice.  The defendant also noted that there was a street lamp located less than a block away, and introduced expert evidence that the drainage system did not violate any municipal codes.  Finally, the defendant alleged that the plaintiff was comparatively negligent because the surrounding sidewalk was covered with snow, and thus the plaintiff should have been more careful when walking on the snow-and-ice covered sidewalk.

The plaintiff sought damages totaling $250,000 for past medical costs, lost wages, as well as past and future pain and suffering.  However, a twelve member jury found that the plaintiff was 65% liable and the defendant homeowner was only 35% liable.  Under Pennsylvania’s comparative negligence law, the defendant was thus barred from receiving any damages.

Defendants should be mindful that retention of the proper liability experts likely made what amounted to a defense verdict possible here.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Bad Verdict? NJ Clarifies Standard of Review

Posted on by

One of the more vexing problems in civil litigation is whether a court should overturn a jury verdict on the issue of damages.  What may seem to be a well-deserved albeit generous award to one person may seem like a runaway jury to another.  Jury instructions on the proper measure of damages for pain and suffering or emotional distress seem vague and subjective.  The jury is exhorted to award “what a reasonable person would consider to be adequate and just under all circumstances to compensate the plaintiff” without much guidance on how complete this mission.

After an unexpected large verdict, a defendant will either ask the trial judge to  vacate the damages award in its entirety or seek a remittitur (reduction) to a more reasonable sum.  But how should a trial court in New Jersey perform this task?  Should the trial judge draw on his own experience as a former practicing attorney or judge to assess the award?  Are comparable verdicts an accurate measure of what’s fair and reasonable in the case at hand?

In Cuevas v. Wentworth, the New Jersey Supreme Court revisited the proper standard of review when examining the reasonableness of a jury verdict in a race-based discrimination case.  In Cuevas, two brothers of Hispanic descent were hired by a real estate management company as regional vice presidents.  After initial success at the company, the brothers were fired after they complained about demeaning and racially insensitive comments either made in their presence or directed at them.  The case was eventually tried before a jury and a punishing verdict was awarded against the defendants.

The Cuevas court provided a detailed overview of how a trial court should assess whether a jury verdict is excessive. The touchstone is whether the verdict shocks the conscience of the court.  In reviewing the award, a jury verdict should be given “the presumption of correctness.” Thus, all evidence should be taken in the light most favorable to the plaintiffs and the verdict reduced only if shown to be grossly excessive by clear and convincing proof.

Cuevas also made two specific changes on this subject. First, the court concluded that “a trial judge’s reliance on her personal experience as a practicing attorney or jurist in deciding a remittitur motion is a not sound or workable approach.” Concerned about inherent subjectivity of each judge’s experiences, the court advocated the more objective “shocks the judicial conscience” standard that relies on the particular circumstances of the case before the court rather than the trial judge’s own past experience.

Similarly, the court rejected the comparison of supposedly similar verdicts to judge whether the award is grossly excessive. Although viewed favorably in prior cases, the Supreme Court found this method to be a “futile exercise that should be abandoned.”  Finding a true “comparable” case illusive, the parties are directed to focus on the particular facts of the case before the court, not on some snippet from the New Jersey Law Journal or jury verdict reporter about another case handled by another judge.

The pursuit of perfect justice is a difficult endeavor.  While Cuevas purports to eliminate subjectivity in the task of examining a civil damages award, the New Jersey Supreme Court has eliminated a trial judge’s ability to rely on her own prior experience or refer to prior similar verdicts when deciding motions to reduce a jury verdict.  Defendants beware because we predict that the trial court bench will become even more reluctant to reduce a jury verdict based on excessiveness in light of Cuevas.

If you have any questions or comments, please email Paul at

 

Trying to Claim Your Boss is Doing Two Things At Once? Think Again. (PA)

Posted on by

On June 29, 2016 the PA Superior Court dismissed the appeal by underlying plaintiff Neidert from an order granting compulsory non-suit to underlying defendant Albert Charlie III.  Neidert sued Charlie when he was injured while working at Riley’s Pub.  Charlie owns the business and also owned the building where Riley’s Pub is located.  Neidert sought damages on the theory that Charlie is not exempt under the Workers’ Compensation Act because he was acting in a “dual capacity” with respect to his ownership of the building.  Neidert claimed that as the building owner, Charlie owed him a separate duty to ensure the building was safe.

Charlie moved for summary judgement after he was served with the complaint and was denied.  At trial however, Charlie made an oral motion for compulsory nonsuit, which was granted.  The issue on appeal, among others, was whether the dual capacity exception applied. The Superior Court noted that this doctrine has only been applied in one case and the exception is extremely narrow and that it “does not apply where the employee’s compensable injury occurred while he was actually engaged in the performance of his job”.

This case is useful in understanding truly how narrow the dual capacity exemption is interpreted.  It will serve as a model for future suits and can be used to defeat such claims by plaintiffs.  Thanks to Remy Cahn for her contribution to this post, and please email Brian Gibbons with any questions.