Category Archives: Damages

Sleep Issues Not Serious Physical Injury in DWI Accident (PA)

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In Vetter v. Miller, the plaintiffs were driving home from a wedding, where apparently they both drink a fair amount of alcohol.  Plaintiff Vetter was chosen to be the driver, but had no memory of the events of the evening.  Plaintiff Jones, the passenger, said that Vetter became annoyed that defendant Miller was tailgating their car, so Vetter exited his vehicle to confront Miller.  Miller, alleging that Vetter “did not look right” attempted to flee but knocked the plaintiff down and dragged him with his vehicle. Responding paramedics noticed a smell of alcohol on Vetter, who was cited with DUI, driving with a suspended license and harassment, and he eventually pleaded guilty to criminal charges.

Despite their actions, Vetter and Jones sued Miller for negligence and recklessness, and Jones brought a claim against Miller for negligent infliction of emotional distress. The defendant filed a motion for partial summary judgment, seeking dismissal of the negligent infliction of emotional distress claim, arguing that Jones could not establish that she suffered serious bodily injuries as required under PA law. The court granted the motion, dismissing that claim. The case went forward, and  at trial the jury found plaintiff Vetter 74% negligent and awarded no damages.

On appeal, Jones contended that the trial court erred in dismissing the negligent infliction of emotional distress claim. The Superior Court found that the trial court properly dismissed the claim, as the passenger had elected limited tort coverage on her driver’s insurance policy, and therefore had to establish a serious bodily injury, which meant a “serious impairment of a body function.” The Court found that Jones’s testimony that she suffered from sleep deprivation did not amount to a serious injury because she remained able to perform her full-time job, pursue a nursing degree and care for her son.

However, a new trial was awarded to Vetter, because although evidence of his intoxication was relevant, the appellate court found that evidence that Vetter pleaded guilty to criminal charges in connection with this incident ought to have been excluded.

Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information.

Defeat Snatched From Expert Hands of Victory (NY)

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There are cases where the facts present solid defenses to some or all of the plaintiff’s causes of action. Yet, favorable facts alone will not necessarily win the case.  Consultation with the appropriate experts and skillful presentation of evidence is necessary to make those facts work for the defense.  This was keenly apparent in Mazella v. Hauser, where the New York Second Department reversed summary judgment for the defendant on a conscious pain and suffering claim.

The case arose out of a fatal pedestrian-vehicle accident in which the pedestrian’s estate sought both wrongful death and conscious pain and suffering damages.  The medical evidence suggested that plaintiff’s decedent suffered so traumatic a brain injury that there could be no conscious pain and suffering – and the defense won the issue in the lower court.  The Second Department, however reversed, finding that the defendant failed to make a prima facie showing of her entitlement to judgment as a matter of law.

As the Second Department noted, “An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.” Defendant’s doctor’s letter in support of the motion did not set forth what skill, training, knowledge, or experience the doctor possessed in the relevant areas of medicine so as to ensure the reliability of the opinion regarding the decedent’s time of death and whether the decedent suffered conscious pain before her death.

Further, the court found that the doctor’s opinion was conclusory and speculative and, thus, of no probative force. The expert’s opinion relied upon “findings” that the decedent had no vital signs when brought to the hospital, that there were open skull fractures showing contused and lacerated brain tissue, and that the hospital certified the cause of death as traumatic cardiac arrest. Based upon these findings, the doctor opined that due to severe brain injury, the decedent did not suffer conscious pain since the brain is the “essential organ that feels the pain.”  This was insufficient, in the appellate court’s opinion, to adequately explain how these findings led to the conclusion that the decedent died immediately after the collision and did not suffer conscious pain before her death.

It is incumbent upon the lawyer to select the proper expert and demonstrate to the court that the expert is qualified to give a reliable opinion in the respective field. When presenting an expert opinion in support of a summary judgment motion, the opinion should set forth adequate grounds for arriving at the conclusion that the lawyer seeks to have the court adopt in rendering its decision.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at .

Pipe Rising from the Grave Causes Trip & Fall (PA)

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A cemetery director in Newtown, PA was awarded a $400,000 verdict after he claimed he tripped and fell over an exposed pipe in the cemetery he was working in.  Darrin White alleged that on July 23, 2012 he tripped and fell over a pipe that housed electric cables which led to a construction trailer.  There was a construction project that was taking place at the cemetery that was overseen by G&C Fab-Con with Scungio Borst & Associates, LLC as the general contractor and Travis, Inc. as the electrical contractor.  White sued all three contractors who then filed a third-party complaint against Mobil Mini, Inc., the company that installed the trailer, but they were later dismissed.

White’s counsel provided photos of the pipe which showed it protruded several inches out of a gravel path.  They alleged that G&C and Scungio Borst were negligent in failing to ensure that the pipe was properly submerged under the gravel and that Travis was negligent in failing to create a deep enough trench for the pipe.  The companies’ counsel stated that the pipe only protruded a half-inch and that White was not watching where he was going.

White alleged that he hit his head from the fall.  He went to the emergency room and was diagnosed with a concussion and released.  White claimed that he suffered from headaches after the incident.  He went to his family doctor and later a neurologist who diagnosed post-concussion headaches and memory loss and prescribed medication.  White also began to suffer from anxiety and depression.  He sought to recover around $41,000 in medical costs.

White’s neurologist testified that his condition had plateaued and that his headaches are permanent.  White stated that he cannot return to work and that he continues to suffer from anxiety and depression and that he experiences migraine headaches two to three times a week.  The companies’ expert concluded that White suffered a minor concussion which he had recovered from.  White’s expert maintained that headaches from a concussion could last for years.

The parties negotiated a high-low stipulation in which the defendants’ liability could not exceed $2.5 million but could not fall below $400,000. The jury found White to be 20% liable and that G&C and Scungio Borst were 40% liable and awarded White $300,000 which was automatically raised to $400,000 the stipulation.

This case demonstrates the importance of expert medical testimony to establish exactly what is wrong with the plaintiff, so that any damages awarded accurately reflect the proven injuries.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Should I move for SJ on Threshold Grounds? If you have to ask, then probably not (NY)

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In recent years, New York Courts have discouraged filing of  “threshold” motions for summary judgment on personal injury motor vehicle accident cases. According to Article 51 of the Insurance Law, a plaintiff injured in a motor vehicle accident must meet the serious injury “threshold” before their claim see a jury.

Among the types of injury that are considering “serious” under Article 51, one is that the injury prevents the plaintiff from customary daily activities for 90 of the first 180 days following the accident. (Now, a cynic may suggest that the 90/180-day rule law essentially created the physical therapy industry, because 6 months of documented PT attendance can defeat a “threshold” motion, but I’m no cynic, so I won’t make that point.)

In DiDomenico v. Kocur, the trial court in Suffolk County granted a defendant’s summary judgment motion, on “threshold” grounds.  The Second Department reversed, and did not even need to examine the substance of plaintiff’s opposition.  The Court found the defendant’s motion failed to make a prima facie showing that the plaintiff’s 90/180-day claim had no merit.  The Court did not opine on specifics, but we suspect the defendant’s motion papers were devoid of references to plaintiff’s immediate post-accident treatment and physical therapy. Thus, the plaintiff’s claim will continue.

“Threshold” motions are laborious to prepare and to oppose, and therefore, time-consuming for courts to decide.  The predominant message now seems to be, “Do not bring a “threshold” motion unless you absolutely have to.”  Motions that are in the “gray area” are being denied more and more often, it seems.  Please email Brian Gibbons with any questions.

 

Department Store Escalator Injury Lawsuit Settles for $15 Million (NJ)

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Countless customers ride escalators in malls and retail stores every day without incident. Unfortunately, that was not the case for ten year old Juliana Valdez. As she was riding the escalator in a New Jersey Macy’s store with her family, her leg became trapped and could not be dislodged until a bystander pressed the emergency stop button and portions of the escalator were removed.

Valdez and her family sued Macy’s and the escalator maintenance company, ThyssenKrupp alleging negligence and breach of contract; her parents asserted a claim for loss of consortium. Although the District Court determined that Valdez’s parents were not entitled to damages for loss of their child’s consortium (comfort and company), the court allowed the parents to argue loss of Juliana’s services (contribution to household duties).

Evidence revealed during litigation indicated that the escalator had been installed approximately 55 years prior to the accident, and was one of the oldest operating escalators in New Jersey. The Valdez family also discovered evidence that the aged escalator had not been properly maintained due to the disruption maintenance caused to Macy’s retail business operations.

After 3 years of litigation for the parties, and 22 surgeries for Juliana, the Valdez family recently settled their case for $15 million dollars. Although the specific terms of the settlement have not been revealed, and neither defendant has conceded liability, the 8-figure payout speaks for itself.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.

Woman Awarded $1.19 Million “Aberration” Verdict in UIM Case (PA)

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A jury in Beaver County awarded a woman $1.2 million in Alviani v. Horace Mann Insurance.  The suit arose from in a July 18, 2012 when the plaintiff, Britney Alviani, was the passenger in her boyfriend’s car when it was struck head-on by Jodi Morrison.  Alviani was thrown forward where she struck the windshield and suffered a laceration to her face and multiple abrasions and bruises.  She also suffered injuries to her right knee and elbow.  According to the pre-trial memorandum, Morrison was driving under the influence and left her lane of travel.  She was later convicted of DUI.

Follow-up care showed that Alviani had a significant injury to her right elbow.  She underwent two surgeries and various other medical treatments and was diagnosed with chronic pain syndrome.  Plaintiff’s counsel employed a medical expert who opined that Alviani’s injury is permanent and that she will not be able to return to her job as a barber’s apprentice.  The pre-trial memo also stated that Alviani is unable to lift more than one pound and has trouble engaging in recreational activities.

The defense team employed their own expert who stated that Alviani was able to be gainfully employed and pointed to her own testimony which stated that she was currently working on a full-time basis and earning more than a barber’s apprentice.

Morrison only carried $15,000 in liability coverage but Alviani was insured under five additional auto policies which provided $50,000 in UIM benefits each.  Alviani requested $65,000 for lost wages, $892,000 – $1.14 million for lost earning capacity, and a $250,000 UIM claim.  The defense offered a final settlement of $115,000.

After a four day trial, the jury deliberated for five hours and returned a $1.19 million verdict which included $65,488 in past lost earnings, $1 million in lost earning capacity, and $100,000 for pain and suffering.  Defense counsel called the verdict an “aberration” and says that he will appeal.

This case demonstrates the potential for high damages if there is a finding of a permanent injury and also the ability of plaintiffs to stack other insurers through UIM coverage.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Man Awarded $1.8 Million For Chemical Burns (PA)

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On March 17, 2016, a Philadelphia jury awarded a sanitation worker $1.8 million after he was partially blinded from a workplace accident.  The trial lasted for two weeks resulting in the jury’s decision which found the defendant Hatfield Quality Meats 87% liable for plaintiff Joseph Keith Jr.’s injuries.

According to the pretrial memo, the case arose from an incident where Keith was cleaning Hatfield’s facility with sodium hydroxide.  As he was wrapping up the hose he used to spray the chemical, it struck him in the face, knocked off his protective glasses, and caused the chemical to drip into his right eye.  Keith then washed his eyes out in a sink but it was ten minutes before he could find a proper eyewash station.

Keith’s pretrial memo stated that he was rendered blind in his right eye and deaf in his right ear.  He claimed lost earning capacity and future medical care costs of between $1.8 and $2.5 million.  The memo also stated that Keith  was permanently disfigured and “looks like a monster to his five children.”

Plaintiff’s counsel harped on the issue of eyewash stations being placed in accordance with OSHA regulations.  They stated that the nearest eyewash stations were 155 and 210 feet away and there were several obstructions in the way.  According to the pretrial memo, the eyewash station that Keith eventually used was locked in another room.  Under OSHA regulations, eyewash stations should be within 50 feet of where chemicals are being used.

Hatfield contended that Keith’s employer didn’t properly train him and that his employer determined the location of the eyewash stations and chemical hose.  Hatfield also stated that OSHA visited the plant on a quarterly basis and they were never cited for violations.  They also questioned whether Keith was properly wearing his safety glasses in the first place.  Hatfield also contended that Keith is very capable of working and has formed several businesses since the accident and as such overstated his injuries.

At trial the plaintiff’s team used several experts.  One stated that having a closer eyewash station would have significantly lessened Keith’s injuries.  Another stated that an eyewash station would have been irrelevant since the damage to Keith’s eyes was instantaneous.  However, on cross, it came out that this expert based her opinion on a 49% solution of sodium hydroxide while the solution Keith was using at the time of the accident was only 1%.

The case illustrates several important points in litigation, the first being the use of regulations and defendant’s compliance with them.  It demonstrates that all entities should strive to meet them to comply with the law and safeguard their workers even though a company can be found liable with an absence of citations or violations.  The use of experts is also found in this suit and how they can support a case or hurt it when holes are poked in their findings.  And finally, the issue of a sympathetic plaintiff is here with Keith, a young man with a family, suffering blindness and hearing damage and becoming disfigured.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

A Significant Injury? No, Just a Transient Rub of Life (PA)

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The Pennsylvania Superior Court recently upheld a Montgomery Court of Common Pleas jury decision to award no damages in a car accident case.  In Gold v. Rosen, No. 3303 EDA 2014, 2016 Pa. Super. 44, (Pa. Super. Feb. 19, 2016, Stevens, J.), the plaintiff was rear-ended by defendant Terri Rosen.  She claims to have suffered headaches, back pain and neck pain as a result of the accident. At trial, the parties stipulated that Rosen was negligent and that her negligence caused plaintiff to suffer a neck sprain/strain.  However, the defense disputed the extent of Gold’s neck injuries and defense experts testified that her injuries were primarily the result of prior accidents.  The jury subsequently found that although Rosen was negligent, Gold was not entitled to a monetary award.

Gold filed a motion to overturn the verdict but the trial court denied that motion.  Gold then appealed. The Superior Court recognized that not all injuries are serious enough to warrant compensation, even though there may be some pain.  The Court noted that Gold had a long history of cervical and lumbar injuries.  Thus in circumstances where it was reasonable for the jury to believe that the plaintiff did not suffer any pain or that a preexisting injury was the sole cause of the alleged pain, the nonmonetary verdict should not be disturbed.  This is known as the “transient rub of life” doctrine.

This is case is worthwhile as a reminder that in cases where the plaintiff has significant pre-existing injuries, a strong presentation of those injuries can significantly reduce the potential award.  Thanks to Remy Cahn for her contribution to this post.  Please email Brian Gibbons with any questions.

Misinformed Medical Expert Leads to Defense Verdict (NJ)

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In Lopez v. Larsen, plaintiff alleged personal injuries as the result of an automobile accident in 2009. Plaintiff came under the care of a pain management specialist, but failed to advise her doctor of injuries sustained in a prior motor vehicle accident in 2004. Plaintiff’s doctor served as a medical expert at the time of trial. His report and trial testimony indicated that plaintiff’s present injuries were causally related to the 2009 accident. During cross examination, plaintiff’s expert testified that he was not advised that plaintiff had been involved in any prior accidents and opined that disclosure of the prior injuries could have caused him to change his opinion.

After plaintiff rested her case, defense counsel moved for a directed verdict arguing that plaintiff’s expert failed to provide a comparative analysis of her pre and post-accident injuries. The trial judge denied defendant’s motion. The jury found in favor of the plaintiff at the close of trial.

On appeal, the Court found plaintiff’s medical expert was not capable of isolating the injuries sustained in the 2009 accident because he had been given no records of any pre-accident medical treatment, which was obviously relevant here. Without a proper comparative medical analysis, the jury was given no information by which it might assess the injuries sustained by plaintiff in several accidents.  Plaintiff was required to present the jury with a medical analysis in order to meet her burden of proof on causation. Having not done so, the appellate court reversed and remanded, holding that the trial judge should have granted a directed verdict for the defendant.

Lopez reminds us that the plaintiff has the burden of proof with respect to causation. A pre-existing injury, even when disclosed, can disrupt the casual chain.  Plaintiffs can get around this pitfall by alleging an exacerbation injury.  However, when the prior injury is not disclosed to a doctor, a defense directed verdict is an achievable goal.  Thanks to Steve Kim for his contribution.  Please email Brian Gibbons with any questions.

Decision Not to Call IME Doctor as Witness is Fair Game (NJ)

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In Guevara v. Bluish, plaintiff was a passenger in a vehicle rear-ended by defendant, and alleged a rotator cuff tear which required surgery. During discovery, plaintiff attended an independent medical examination. However, defendant chose not to name the doctor as a medical expert and elected not to call an expert to testify at the time of trial.

At trial, the parties stipulated that defendant was negligent and caused the accident. However, the major point of contention was whether the accident caused plaintiff’s injuries. The jury found in favor of defendant, stating that the accident did not proximately cause plaintiff’s injuries.

Plaintiff appealed, arguing that the trial court erred based on the judge’s failure to instruct the jury that it could draw an inference against defendant for choosing not to call a medical expert to testify. The appellate court held that it was plaintiff’s burden to prove causation by a preponderance of the evidence and that defendant was not required to testify or to call any expert witness on his own behalf.  The appellate court indicated that it would have been improper to advise the jurors that they could draw an inference against defendant for his decision not to call an expert witness.

Whether or not a defendant chooses to call an expert witness at the time of trial to contest the testimony of plaintiff’s witnesses is a strategy call.  A defense witness may not be necessary if it appears that plaintiff has failed to meet his burden of proof.  Conversely, plaintiff could likely have called the same IME doctor as a witness, but elected not to do so.  Plaintiff should not, and is not, permitted to benefit from his incorrect strategy after the fact.  Thanks to Steve Kim for his contribution.  Please email Brian Gibbons with any questions.