Results

$1.125 Million Traumatic Brain Injury

Type of Case: Traumatic Brain Injury from Slip and Fall at Construction Site

Result: $1,125,000 Settlement After 1 Week of Trial

Date of Settlement: July 29, 2024

Description of the Case:

This case settled after a week of trial, literally “on the courthouse steps” right before the start of the second week of trial (it was anticipated that the trial would take two weeks)

The injured plaintiff worked for a subcontractor at a construction site in New Bedford. As part of its construction contract, the defendant, general contractor, agreed to provide parking for workers, which was located inside the boundaries of the construction site. On January 28, 2021, the plaintiff, slipped and fell on black ice on the parking lot at the site, hit the back of his head, and was knocked unconscious. When he regained consciousness, his son in law, who was also working at the site drove him to a nearby local hospital, where a CT scan showed bilateral subarachnoid hemorrhages (bleeding on the right and left sides of his brain below the surrounding membrane). The emergency room doctor advised him to stay for a few hours so that a repeat CT scan could be performed to rule out further bleeding. Instead, because he was worried about contracting COVID, he left the hospital against medical advice and drove to a different hospital which had his CT imaging reviewed by a neurosurgeon who advised that it was safe to discharge him home.

After a few days, the injured plaintiff returned to his home in Florida (he owned the subcontracting company and would come to New England to work on more complex jobs). Over the next few weeks, he felt progressively worse, with headaches and trouble walking without stumbling. His wife took him to a local hospital where another CT scan showed more extensive bleeding in his brain. He underwent emergency brain surgery to place two drains to relieve the pressure on his brain. He was discharged home after five days in the hospital.

Plaintiff was 64 years old at the time of his injury and 67 years old at the time of trial. As a result of his traumatic brain injury he suffers from permanent cognitive problems such as forgetfulness, lack of focus and confusion. His personality also changed as he went from being patient, friendly and outgoing to getting angry more easily and snapping at people. At the time of his injury, his main role with his business was as an estimator who prepared the bids for all the big contracts. As a result of the effects of his injury, he prepares less estimates, makes mistakes and his business had to pivot away from bidding on the most profitable contracts. Unfortunately available records made it difficult to quantify the extent of this loss. As a result of the fall, he also exacerbated a prior problem with migraines and with lower back and neck pain for which he had previously had surgery. His wife also brought a claim for her loss of consortium.

Plaintiffs called the defendant’s director of operations as a witness at trial. Under plaintiffs’ counsel’s questioning, he agreed that the defendant had a duty to prevent unsafe conditions at the construction site and that black ice was a potentially unsafe condition. Through his testimony and by playing portions of the video deposition of defendant’s on-site job supervisor, plaintiff’s counsel established that at no time during the winter of 2020-2021 did defendant ever apply salt, sand or ice melt to the parking lot and that prior to plaintiff’s injury, defendant did not even keep any salt, sand or ice melt at the construction site. Immediately following the plaintiff’s injury, defendant’s on-site supervisor inspected the area where plaintiff fell, verified that there was black ice there and went to a local Lowe’s to buy some ice melt which he then applied by hand to the spot.

Defendant contested both liability and damages. Defendant argued that construction sites are fundamentally different from other workplaces due to their unavoidable dangers and because of this workers at construction sites have to exercise a greater degree of “situational awareness” of their surroundings. Defendant was prepared to argue that plaintiff was comparatively negligent for not watching were he was walking and not taking necessary precautions for his own safety. Defendant’s witnesses also testified, based on site photos, that the parking lot was generally wet and not icy, except for the shaded area where plaintiff fell and therefore defendant had made reasonable efforts to keep the parking lot free of unsafe ice.

Defendant was prepared to offer expert testimony from a neurologist that plaintiff was no longer suffering from any effects from his traumatic brain injury. Although he conceded that plaintiff had suffered a concussion and bleeding on the brain as a result of hitting his head, the defense neurologist testified at deposition that plaintiff’s symptoms should have resolved shortly after his brain bleeds were drained and that any post concussion symptoms would have resolved in a matter of months. He testified that there was no objective evidence plaintiff had any on-going symptoms or exacerbation of previous migraines, neck or back problems. The defendant also was prepared to offer testimony from an expert neuropsychologist that plaintiff had failed validity tests during his neuropsychological testing which indicated the neuropsychological test results were invalid and that he was possibly malingering.

The case settled after one week of trial, “on the court house steps” just before the second week of trial was about to start. Plaintiffs had already presented testimony both from plaintiff’s treating neurologist and an expert neuroradiologist, as well as liability witnesses and was prepared to call a neuropsychologist, a construction safety expert, a meteorologist, and before and after witnesses as well as the injured plaintiff and his wife. Plaintiffs’ counsel also successfully brought a motion in limine to exclude any reference to the injured plaintiff leaving the first hospital against medical advice. Defendant also pursued third party claims for contractual indemnity against plaintiff’s business, which were severed and stayed during trial and did not affect plaintiffs’ recovery.

$2 Million Traumatic Brain Injury Truck Accident

Confidential Traumatic Brain Injury/Truck Accident

Type of Case: Traumatic Brain Injury/Truck Accident

Name of Case:  Withheld Pursuant to Agreement

Result: $2,000,000 settlement

Date of Settlement: March 22, 2010

Facts:  Plaintiff, a twelve year old boy, was a passenger in his mother’s car which was hit by a fourteen wheeler at an intersection.   The plaintiff sustained a severe traumatic brain injury, visible on both CT scan and MRI and was in a coma for over  a month after the accident.  His mother was also killed in the crash.  He returned to school approximately eight months after the accident and received virtually no treatment or special services after that time.  Remarkably, without any significant accommodation by the school system he consistently achieved high grades and at the time of the settlement was receiving A’s and B’s in Honors College prep classes and it was anticipated he would attend college.

This case required proof that although the plaintiff did well in school and scored well on standardized tests, his traumatic brain injury had a significant impact on his social functioning and ability to make friends.  Had the case proceeded to trial, before and after witnesses would have testified who could describe the difference in the plaintiff due to the accident.  This would also have been supported by citation to relevant medical literature and the anticipated expert testimony of a neuropsychologist and a life care planner with extensive experience with the needs of brain injury survivors.

The case settled after an all day mediation session in which computer animation was also used to demonstrate that the accident was the fault of the truck.  The settlement also included claims for the mother’s wrongful death.

$1.68 million Mini Himalaya Amusement Ride

Foti v. Bonkers 19, Inc., et al, Norfolk Superior Court C.A. No.: 96-02188

Type of Action: Negligence & Product Liability—Defective Amusement Ride

Injuries: Partial scalping (extensive temporoparietal and occipital scalp avulsion) with associated hair loss and disfigurement; Posttraumatic Stress Disorder; Generalized Anxiety Disorder.

Result: $7,559,143.00 Settlement

Date of Settlement: July 2, 1998

Case Summary: The minor plaintiff, an eight year old child, sustained serious injuries and disfigurement while a passenger on a “Mini-Himalaya” amusement ride. Her hair was grabbed by the ride’s motor through a gap between the back seat of the car she was riding in and the motor cover. As a result, her hair and scalp were violently ripped from her head. Her mother who was present, but not a passenger on the ride, watched in horror. The child’s father rushed to the hospital where he saw his eight year old daughter covered in blood and pieces of her scalp on the hospital bed.

The minor plaintiff suffered an 18 cm X 13 cm scarred bald spot and required extensive painful cosmetic surgery. Initially, an emergency skin graft was performed and she wore a complete head bandage for the next six months. A scalp expander was then inserted under the undamaged portion of her scalp. A series of eleven painful saline injections to expand her scalp followed. The amount of saline injected during any one visit was limited by the child’s pain tolerance. The scalp expansion grossly disfigured the left side of her head and she was taunted by children at school. She eventually required two additional operations (one due to a resulting infection).

This accident also had serious psychological effects on the minor plaintiff. She was diagnosed with a Generalized Anxiety Disorder and Post Traumatic Stress Disorder. This had a significant effect on her personality and affected her play and interaction with her playmates. Her parents also brought claims for their own emotional distress.

Plaintiffs brought negligence claims against the operator of the ride, Bonkers 19, Inc. (which ran an indoor amusement parlor) and claims for negligence, breach of warranty of merchantability, and violation of Ch. 93A against Zamperla, Inc., a distributor of amusement rides, who sold (but did not manufacture) the Mini-Himalaya ride which injured the minor plaintiff. The defendants impled four additional parties: a finance lessor of the ride; the traveling carnival which sold the ride to Zamperla, Inc.; an electrician who worked on the ride; and a state licensed inspector who inspected the ride. The company which designed and manufactured the Mini-Himalaya was no longer in business.

Had the case tried, plaintiffs would have introduced evidence that Bonkers 19, Inc. had not complied with industry standards by failing to have the Mini-Himalaya inspected on a daily and weekly basis by a competent ride inspector. Plaintiffs were prepared to offer expert testimony that such inspections, required by industry standards, custom, and practice, would have revealed the gap between the back seat and motor cover and that the Mini-Himalaya should not have been operated with such a gap present. An internal memo drafted by the defendant amusement park admitted that this gap could have been corrected with thirteen cents worth of weather stripping.

Plaintiffs were also prepared to offer evidence that the Mini-Himalaya was sold by Zamperla, Inc. with a motor cover which could not be mounted flush against the back seat, and hence was in an unreasonably dangerous and defective condition. Further discovery and investigation revealed that a subsequent manufacturer of the ride discovered this design defect and corrected it by re-designing the motor cover to mount flush. This re-designed motor cover cost $85.00. It was anticipated that Zamperla, Inc. would argue that the gap was created by someone acting on behalf of Bonkers 19, Inc. and that it should not be held liable as it sold the ride used “as is”. Plaintiffs intended to counter this by offering evidence that other Mini-Himalayas were sold to other amusement operators with the same type of gaps present and arguing that Zamperla, Inc. had a duty to inspect the used Mini-Himalaya prior to selling it. Plaintiffs also intended to refer to Massachusetts law which holds sellers of used good in these circumstances liable for breach of warranty of merchantability.

After three sessions before a mediator, plaintiffs settled with Bonkers 19, Inc. and two third party defendants for a total of $985,000. The case continued as to Zamperla, Inc. and two third party defendants until approximately five weeks prior to the scheduled trial date, when a settlement was reached for an additional $700,000. A significant portion of the $1,685,000 settlement was structured with a guaranteed minimum pay-out of $7,559,143.00 for the minor plaintiff.

Subsequent events suggest that this case called attention to the need for greater state regulation of indoor amusement ride operators.

$1.25 Million Snowmobile Products Liability

Estate of Cathy Fraser, et al v. Quiet Ridge, Inc., et al, Barnstable Superior Court Civil Action No.: 05-0280

Type of Action: Products Liability/Wrongful Death

Injuries Alleged: Wrongful Death

Result: $1,250,000.00 Settlement

Date of Settlement: May 2007

Case Summary: This was a wrongful death action arising out of an accident on December 30, 2002, when plaintiff’s decedent was operating a snowmobile. Plaintiffs alleged that the accident occurred because the decedent mistook an aftermarket part, known as a finger throttle (in essence an accelerator) for a brake. This caused her to lose control of the snowmobile and suffer fatal injuries. Plaintiff’s decedent was a married, forty-one year old mother of two at the time of her fatal accident.

The finger throttle was an after market part which had been installed on a used snowmobile prior to its sale to the decedent’s husband. Snowmobiles are designed to be accelerated by a thumb throttle, which is located on the inside of the right handlebar and engaged by pushing forward with the right thumb. The aftermarket finger throttle was installed on the outside portion of the right handlebar and engaged by pulling with the fingers of the right hand. Plaintiffs (the surviving husband and children) brought claims against the manufacturer of the finger throttle, the company which designed it, the dealership which sold the used snowmobile, and the owner of the dealership, who personally dealt with the decedent’s husband. Plaintiffs alleged that the finger throttle was defective and unreasonably dangerous as it resembled a brake and necessary warnings, instructions, labels, or markings were not provided to identify it as a throttle.

The accident occurred on a family outing during Christmas vacation near Sunday River, Maine. The decedent was snowmobiling with her family, who were on three separate snowmobiles. Her husband and daughter were on the lead snowmobile, her brother-in-law and his fiancé were on the second snowmobile, and the decedent was on the third snowmobile. The family rode their snowmobiles from the yard of their cottage to a trail crossing their property. They approached a neighbor’s driveway marked with a stop sign. The first two snowmobiles stopped and then proceeded to cross the driveway. The decedent’s snowmobile suddenly accelerated, flew past her family, struck a rock and then a tree. She died instantly of a broken neck.

Although there was circumstantial evidence that the decedent’s sudden acceleration occurred when she grabbed the finger throttle, there was no eyewitness testimony that she had engaged the finger throttle rather than the conventional thumb throttle. The most that the witnesses could observe was that, in the brief moment they saw her zoom by, the decedent was gripping both handlebars while still accelerating. Although the Maine Game Wardens who investigated the accident concluded it occurred because the decedent grabbed the finger throttle, one of the lead investigators conceded at deposition that there was no “forensic evidence” supporting this conclusion.

Plaintiffs were prepared to offer expert testimony from an industry safety consultant and a professor of biomechanics that the accident could only have occurred by the decedent engaging the thumb throttle. Their testimony would have included that the forces involved would have made it impossible to continue to accelerate while both gripping the handlebars and using the thumb throttle and that once the finger throttle was engaged it would have been impossible to release it without falling off the snowmobile. The industry expert would also have testified that finger throttles were considered by snowmobile manufacturers and rejected precisely because of this risk. Plaintiffs were also prepared to offer testimony from a human factors expert that the placement and shape of the finger throttle made it likely to be mistaken for a brake and that even if an operator had been aware it was a brake, in an emergency an operator would be likely to instinctively engage it.

Defendants claimed that it was impossible to determine whether the decedent engaged the finger throttle and that the accident was the decedent’s fault for not attending snowmobile classes, viewing videotapes, or otherwise being properly trained. All defendants conceded, however, that they had never attended any such classes or received any such training. In fact, defendant’s safety expert admitted that his whole training in snowmobiles, prior to evaluating the safety of the finger throttle consisted of riding a snowmobile in a friend’s backyard.

The claims against the defendant designer and manufacturer/distributor settled shortly after the deposition of the designer of the finger throttle in which it became evident he had not conducted the type of product safety evaluation recommended by the safety expert he had retained.

The case continued against the defendant dealership and its owner, which admitted that it did not label or provide any written warnings, including the instruction sheet provided by the manufacturer, concerning the finger throttle, but claimed to have verbally instructed the decedent’s husband concerning the finger throttle. The plaintiff husband would have testified that no such warnings were given. Moreover, the defendant conceded that any such verbal “warning” took less than a minute and was given as part of an overview of the features of the used snowmobile that only took a few minutes in total. Plaintiff’s human factors expert would also have discussed the inadequacy of this so-called warning.

Plaintiffs would also have presented expert economic testimony concerning the economic value of the decedent to her survivors.

The claims against the dealership and its owner settled three days before the start of trial.

$800,000 Premises Liability-Fall Down Dangerous Stairway

Sheehan v. Balanced Health and Fitness, Inc., et al

Barnstable Superior Court C.A. No. 11-690-A

Result:  $800,000 Settlement

Date of Settlement: March 17, 2014

Plaintiff fell down stairs at the rear entrance to a health club located in the basement of a strip mall in North Falmouth. Plaintiff alleged the stairs were unreasonably dangerous due to an absence of handrails and lack of a landing. Plaintiff brought claims for negligence and violation of Mass. Gen. Laws Ch. 93A against the health club and the owners of the strip mall who rented the basement to the health club. As a result of her fall, plaintiff shattered bones in her foot requiring bone graft and fusion surgery and broke her wrist requiring insertion of permanent hardware. She missed a year from work due to her injuries. At the time of her injury, she was working as an aide for a program for women with substance abuse problems and was escorting them to the health club.

Plaintiff alleged that the stairway violated the requirements of the Massachusetts Building Code and widely accepted industry standards. The defendants contended that the stairs in fact had handrails, that an occupancy permit had been granted to the space in 1986, that plaintiff could not show that additional or different handrails would have prevented plaintiff’s fall, and that plaintiff was comparatively negligent for not using the front entrance stairs which had handrails or the building elevator, and that no other persons had previously fallen on the stairs. The defendant landlords also argued that they could not be liable as a matter of law as the rear stairway was part of the leased premises and not a common area.

In response plaintiff was prepared to offer photographs of the stairs showing a lack of handrails and asked the Court to allow the jury to take a view of the stairway. She was also prepared to offer expert testimony that the stairs did not meet Building Code requirements either in 1986 or the present. Moreover, the configuration and use of the basement had been changed since 1986 requiring application for a new building and occupancy permit which would have triggered a new inspection which would have called the violations to the Town’s attention and required compliance with the current Building Code. Plaintiff also would have introduced evidence that her employer required her to use the rear stairs.

With respect to the defendant landlord, a husband and wife, plaintiff was prepared to offer evidence that they retained shared control over the rear stairs and that the husband had personally expanded the leased space prior to the plaintiff’s fall, without applying for the required permits. Moreover, the husband was the President of a Construction Company which built the strip mall in the 1980’s. Although he claimed ignorance of current Building Code requirements as to handrails, the defendant wife admitted that approximately three months prior to plaintiff’s injuries he had actual knowledge of the requirements, because the Town required him to install handrails on their stairs to get an Occupancy Permit for their new house, which he built himself. Moreover, although the defendant husband landlord claimed not to have an active construction company, plaintiff would have introduced evidence that he filed an Application with the Town of Falmouth in 2009 to be the developer of a Ch. 40B affordable housing development.

Plaintiff would also have offered evidence that following the plaintiff’s injury, the defendants stopped allowing the rear stairs to be used as an entrance, without any disruption of the health club’s business. Plaintiff would also have presented the video testimony of her treating Orthopedic Surgeon, the Director of Foot and Ankle Sports Medicine at MGH that she will have permanent impairments due to her injuries and subpoenaed three private investigators, hired by one of the defendants, who admitted at deposition that their clandestine surveillance verified plaintiff’s limp.

The case settled for $800,000 after three unsuccessful mediation sessions, while plaintiff’s counsel was aggressively seeking a prompt trial date.

$270,000 Hot Air Balloon Strikes Powerlines

The plaintiffs were a family of four (father, mother, two young adult daughters) who paid the defendant to take them for a hot air balloon ride in Central Massachusetts. Prior to take off the defendant required each plaintiff to sign a purported release and arbitration agreement. The defendant attempted to land in a congested residential area and struck powerlines causing an electrical fire which burned the father and one of the adult daughters (the incident also knocked out power to a portion of the town of Clinton). Although the FAA merely gave defendant a warning, plaintiffs were prepared to offer evidence and expert testimony that the defendant violated numerous Federal aviation regulations including those prohibiting flying the balloon below 1000 feet over a congested area and those requiring the keeping of up to date logbooks. Plaintiffs were also prepared to present evidence that the defendant overloaded the balloon beyond its maximum allowable weight to maximize his per passenger revenue, failed to take well accepted safety precautions and had a well documented history of prior and subsequent mis-landings (some of which had also been featured in the media) which were also inexplicably ignored by the FAA. The injured father sustained burns to his face, neck, arm, leg and hand. He also had a non-displaced foot fracture caused during balloon unloading after the crash. The injured daughter sustained burns to her hands and forearm. Both were treated as outpatients and had relatively good cosmetic results. The wife and other adult daughter sustained no physical injuries and received no treatment for their emotional distress. After defeating defendant’s motion to dismiss based on the purported release, the case settled after two mediations. The available insurance policy limited coverage to any one injured passenger to a maximum of $100,000. Accordingly, both injured plaintiffs each received the maximum available $100,000 and the two emotional distress plaintiffs received $50,000 and $20,000 respectively.

$880,000 Go-Kart Collision

Type of Action: Go-Kart accident; negligence; products liability

Name of Case: Kristy Lorance v. Beams Industries, Inc., et al

Court Case #: Payne County (Oklahoma) District Court No. CJ-2001-129

Amount of Settlement: $880,000

Date of settlement: 2004.

Plaintiff, an eighteen year old high school senior was injured on “senior skip day” when she and her friend went to a local go-kart track in Oklahoma. The go-kart she was driving was only equipped with a shoulder belt and no lap seat belt. As a result, when another go-kart collided with her, she slid down in her seat and broke her neck.

Plaintiff brought claims against the operator of the go-kart track, the manufacturer of the shoulder belt, and a classmate whose go-kart collided with her. Plaintiff was prepared to offer testimony from a nationally recognized amusement ride safety expert that applicable industry standards required that a lap belt, rather than only a shoulder belt, be provided in the go-kart. His testimony was also expected to include that these standards required the manufacturer of the seat belt to provide adequate warnings and instructions directing that the seatbelt only be used as a lap belt and that because it lacked such warnings and instructions, the seat belt was defective and unreasonably dangerous beyond the expectations of the ordinary consumer. Plaintiff was also prepared to offer testimony from a biomechanical engineer and medical doctor that had the go kart been equipped with a lap belt, plaintiff would not have sustained her injuries.

Following the collision, plaintiff was initially a quadriplegic.  After physical therapy and hospitalization she regained the use of her limbs and was able to walk with a leg brace.  She was left with loss of feeling on the right side of her body, loss of use of her left arm, and general fatigue and weakness.  Plaintiff’s vocational expert was prepared to testify that she would require special placement assistance to be employable.

Shortly after filing suit, plaintiff’s counsel reached settlements totaling $380,000 with the operator of the go-kart and the classmate.  The go-kart track tendered $300,000 which was the full limits of its insurance coverage.  The case against the seatbelt manufacturer continued.  A mediation was scheduled after expert depositions were completed and the case was scheduled to be assigned a trial date.  The manufacturer tendered the full amounts of its $500,000 insurance policy.  Unfortunately, the seatbelt manufacturer had no other substantial assets and the manufacturer of the go-kart had previously declared bankruptcy.

Plaintiff’s counsel from Massachusetts was honored to be invited to work on this case by an eminent member of the Oklahoma plaintiff’s bar, whose active participation was essential to the result obtained and who convinced plaintiff’s health insurers to release their rights to be reimbursed for medical expenses they had paid.

 

$500,000 Medical Malpractice

Settlement Amount: $500,000

Action: Medical Malpractice

Date of Settlement: September 21, 2010

Description: Decedent, a sixty six year old woman, presented to a hospital with complaints of shortness of breath, coughing, and blood tinged sputum. It was discovered that a tumor was partially obstructing her right upper lobe bronchus and she was admitted for a laser bronchoscopy. This procedure involved passing a flexible bronchoscope inside an endotracheal tube and down the patient’s throat into her airway. A flexible laser fiber was then passed down inside the bronchoscope, until it came out the other end and could be fired when the surgeon stepped on a foot switch. The purpose of the laser bronchoscopy was to at least partially resect the tumor and open up her airway.

While firing the laser, the defendant surgeon set the decedent on fire. The fire lasted at least seven or eight seconds until the defendant surgeon extinguished it by disconnecting the endotracheal tube and blowing down it. The decedent sustained extensive burn injuries to her airway and was transferred to the ICU where she was put on a ventilator. She passed away approximately six and a half weeks later from her injuries.

Plaintiff brought suit against the defendant surgeon both for negligently causing the fire and by exacerbating the damage by his actions once the fire occurred. Plaintiff was prepared to offer expert testimony from an interventional pulmonologist, who was one of the pioneers in laser bronchscopy, that the fire was caused because the surgeon negligently placed the tip of the laser too close to the bronchoscope and endotracheal tube, setting them both on fire (both showed clear evidence of burn damage). Plaintiff’s expert pulmonologist would also have testified that use of a rigid bronchoscope, made of metal, rather than the flexible scope used by the defendant, would have eliminated any risk of fire. Plaintiff was also prepared to offer testimony from a forensic pathologist that when the defendant blew down the endotracheal tube he spread the fire damage and burns throughout both lungs thus dramatically increasing the severity of the decedent’s injuries. Plaintiff intended to argue that the defendant surgeon’s negligence stemmed from his relative lack of experience and practice in performing the procedure. As there were two recognized centers of excellence for performing this procedure in the same geographic area, plaintiff would have argued that defendant was negligent in not referring plaintiff to one of those facilities for the laser bronchoscopy.  The defendant surgeon agreed that the two recognized causes of fires during laser bronchoscopies were either the surgeon placing the laser tip too close to the endotracheal tube orthe anesthesiologist delivering too high an oxygen concentration to the patient. He also testified that the oxygen concentration was at the appropriate level. Nonetheless, the defendant surgeon denied any responsibility for the fire, theorizing that it occurred due to his hitting an air pocket with a higher oxygen concentration when he lasered through the decedent’s tumor. This novel theory was unsupported by any medical literature or any other medical witness in the case. After plaintiff conducted discovery on the repair and maintenance of the equipment used, the defendant finally conceded that he was not alleging any equipment defect caused the fire.

Shortly before the fire, the attending anesthesiologist was called from the room, leaving a resident anesthesiologist to administer oxygen and monitor the patient. Both anesthesiologists and abundant medical literature agreed that in the event of a laser fire the anesthesiologist is responsible for immediately turning off the gases to the patient and removing the endotracheal tube, to minimize the burn injury. The resident admitted that he did not do this, and that it was not done until minutes later when the attending anesthesiologist returned, but claimed that this was because he was unaware that there was a fire. This testimony was contradicted by the defendant surgeon and the nurse laser operator both of whom testified that the surgeon promptly advised everyone of the fire. Accordingly, the Complaint was amended to add the resident anesthesiologist as a defendant.

The defendants vigorously contested the extent of plaintiff’s damages. It was anticipated they would argue that the decedent had terminal cancer with at best approximately thirteen months to live. The decedent’s children were all adults, living out of state, for whom she provided no economic support. The defendants maintained that the decedent was estranged from her children, all of whom she had disinherited in her will, and one of whom she had not spoken to in years. They also contended that the decedent’s conscious pain and suffering was minimal as she was unconscious for much of her remaining time after the fire and on effective pain drugs at all times. Moreover, the decedent’s best friend and roommate, who was the taker under her will, subsequently passed away, meaning that the taker of any pain and suffering damages would not have a direct connection with the decedent.

In response, plaintiff was prepared to demonstrate that the decedent had an on-going involved relationship with her two daughters and that her son was attempting to repair their relationship at the time of the incident. Plaintiff would have also pointed out that the decedent’s will was prepared when she had no significant assets to distribute and that it was primarily concerned with funeral arrangements. Plaintiff would also have presented evidence of numerous e-mails and telephone calls between the decedent and her children and that plaintiff had dinner with her eldest daughter the weekend before the fire.

Plaintiff also argued that the decedent’s pain and suffering was substantial. Entries in the medical records and the testimony of her children documented that she was frequently awake, responsive and aware what had happened to her. Plaintiff would have presented expert testimony concerning the repeated unsuccessful attempts to decrease her sedation and wean her from the ventilator and what this would have entailed for her.

The case resolved shortly before the Pre-Trial Conference and while still awaiting a tribunal to be conducted as to the defendant resident anesthesiologist. In addition to the settlement amount above, the hospital where the incident occurred agreed to forego collection of its substantial bills related to decedent’s post incident treatment.

$400,000 Architectural Malpractice Verdict

Type of Action: Architectural Malpractice and Chapter 93A.

Damages Alleged: Inadequate attic ventilation throughout a twelve building housing cooperative leading to repeated extensive ice damming and roof leaks.

Court Case #: Suffolk Superior Court C.A. # 97-2281-H

Amount of Verdict: $400,000

Date of Verdict: May 23, 2000

Plaintiff, a 98 unit housing cooperative, retained the defendant architectural firm to provide architectural services in connection with the renovation and rehabilitation of plaintiff’s buildings. One major purpose of this work was to improve attic ventilation. As part of these services the defendant architectural firm also monitored the work and reviewed Change Orders for compliance with the design intent. The architect assigned by the defendant firm to provide these services was also named as a defendant.

The project was mostly completed by 1993.  In the winters of both 1994 and 1995 there was extensive ice damming and resulting roof leaks in plaintiff’s units.  In each of these winters, the plaintiff requested the defendant visit its property to advise whether the ice damming and roof leaks were caused by a structural problem.  In both instances, the architectural firm assigned the individual defendant to conduct such inspections, and in both years this defendant advised the plaintiff that its problems were due to the severe winters.  When the problems  recurred in the winter of 1996, the plaintiff retained an independent structural engineering firm.  Based upon that firm’s review, plaintiff pursued claims against the defendants.

At trial, plaintiff presented expert testimony that the defendant architectural firm’s design, together with the decisions made during contract administration, resulted in attic ventilation which did not comply with the Massachusetts Building Code.  Plaintiff’s expert testified that the initial design was deficient in that it failed to account for “constructability” (the ability of contractors to construct what has been designed) and the need for additional ventilation due to heat sources; that the defendant’s negligent approval of a change order eliminating the addition of a vapor barrier doubled the ventilation requirements while only saving the plaintiff approximately $1200 on a $1.2 million dollar project; and the addition of a perforated metal mesh to eaves vents, with the defendant’s approval, severely restricted the ventilation.  Plaintiff’s expert further testified that the lack of adequate attic ventilation was a substantial contributing factor to the ice damming and resulting roof leaks as well and caused more subtle building damage through condensation and rot.  Plaintiff’s expert also described the repairs necessary to provide adequate attic ventilation and testified that adequate attic ventilation could have been provided initially without significantly increasing the cost of the original projects.  Plaintiff offered into evidence bids for the necessary repairs.

Defendants argued that they were not negligent; that the proposed repairs would not significantly increase ventilation; that plaintiff was seeking to be put in a better position than if the work had been properly performed; that ventilation could be significantly increased at minimal cost and that plaintiff’s claims were barred by the statute of limitations.  Because of the statute of limitations issue, the plaintiff was not only required to prove that defendants were negligent, but that they had misled the plaintiff as to the cause of the ice damming and roof leaks.

After slightly more than an hour of deliberations, the jury awarded the plaintiff $400,000 in damages.  The Court also subsequently held that the defendant architectural firm had violated Mass. Gen. Laws Ch. 93A, prohibiting unfair and deceptive trade practices.

 

 

 

$559,000 Mild Traumatic Brain Injury Verdict

Middlesex Superior Court Civil Action No.: 03-4603-J

Date of Verdict:  August 9, 2006

Plaintiff was a 43 year old mother of two teenaged sons who sustained a mild traumatic brain injury while a passenger on a shuttle bus operated by the defendant rental car company.  A portion of the bus’ ceiling crashed on the plaintiff’s head and knocked her unconscious while she was riding to the airport in Phoenix, Arizona.  The plaintiff regained consciousness when the bus arrived at the drop off location.  EMT’s responded and against their advice plaintiff returned to Boston without going to the hospital.  She attempted to go to work the day after she returned but was sent home.  When plaintiff continued to suffer from severe headaches she went to a hospital emergency room where x-rays and CT scans of her head were negative.  In addition to headaches, she also developed severe stuttering and memory difficulties.  She was referred to a neurologist who then referred her to a psychiatrist who diagnosed her with a conversion disorder, a condition in which underlying psychological distress produces physical symptoms.  She was also sent for an MRI of her brain, which was also negative.

When she applied for SSDI, the federal government sent her for neuropsychological testing.  This revealed significant cognitive deficits which the examiner concluded prevented her from working.  She saw a new neurologist who sent her for additional neuropsychological testing which confirmed the presence of significant deficits.  As this neuropsychologist concluded there were psychological factors which were interfering with her recovery, she was also referred to a clinical psychologist.  Plaintiff also requested services from the Massachusetts Rehabilitation Commission to help her return to work.

Plaintiff brought a claim for her injuries and claims on behalf of her sons (known as “loss of consortium” claims) for the effects of her injuries upon them.  At trial, plaintiff presented testimony from an expert neuropsychologist to educate the jury about the nature of mild traumatic brain injury, specifically, that the term “mild” refers to the fact that imaging studies are usually normal and that symptoms of an immediate life threatening injury are not present.  The jury was also taught that although most persons who sustain a mild traumatic brain injury do recover, a significant minority are left with permanent cognitive impairments.  The plaintiff’s expert neuropsychologist also explained that due to her injury, the plaintiff suffered from significant permanent impairments in attention, concentration, working memory and processing speed.  Plaintiff’s vocational rehabilitation counselor from the Massachusetts Rehabilitation Commission also testified that due to her impairments, plaintiff would be unable to return to her previous employment as a clinical educator in respiratory therapy.

The defendant argued that plaintiff  did not suffer from a mild traumatic brain injury but was either suffering from a conversion disorder or faking her injury.  The defendant presented testimony from three experts on its behalf: a neuropsychologist; a psychiatrist; and a neurologist.  In cross-examination, plaintiff’s counsel was able to demonstrate that the three experts did not agree on fundamental principles of brain injury medicine.  Cross-examination also revealed that the defense neuropsychologist did not administer all of the tests necessary to diagnose plaintiff’s brain injury, that there was no medical literature supporting the defense neurologist’s claim that there was no such thing as a mild traumatic brain injury, and that the defense psychiatrist agreed that the course of plaintiff’s recovery was consistent with a mild traumatic brain injury.

After approximately three days of deliberations, the jury returned a verdict for the plaintiff in the amount of $300,000 and for each of her sons in the amount of $60,000.   Together with pre-judgment interest, the verdict totaled slightly over $569,000.

$2.7 Million Go-Kart Amusement Ride

DeeAnn J. Bailey v. The Arnold Group, Inc.; Edward H. Arnold; Bowman Racing, Ltd; Zytek Systems, Ltd; Kenneth C. Becker; Industrial Safety Services, Inc.; and Timothy Allen Horn d/b/a Midway Engineering, Montgomery County (PA) Court of Common Pleas  C.A. No. 99-04011

Type of Action: Negligence & Product Liability—Defective Amusement Ride

Injuries: Scalp avulsion with associated hair loss and disfigurement

Result: $2,700,000 Settlement

Date of Settlement: 2004

Case Summary: Plaintiff was a thirty-three year old woman who caught her hair on the unguarded rear axle of a go kart while riding at an indoor amusement center. As a result, her scalp was ripped from her head, including her hair, skin, flesh, sweat glands and nerves. Plaintiff underwent several unsuccessful skin grafts and other surgeries which left her with permanent loss of hair and scarring not only on her scalp, but on other areas on her body where the skin for the grafts was harvested. In addition, her activities were restricted due to the risk of further injury and infection.

Plaintiff filed suit against the company which owned and operated the indoor amusement center and its President individually; the companies which supplied the motor and go kart frame; the safety consultant who arranged for state mandated certification of compliance with ASTM standards; and the engineer who certified the go kart as being in compliance with Pennsylvania regulations and ASTM standards.

The defendant track operator, and its President, brought a motion for summary judgment claiming that plaintiff signed a release on a prior visit, one year and nine months preceding the accident, which immunized it from liability on all subsequent occasions (plaintiff did not sign any purported release of liability form on the date of the accident). These defendants also moved to dismiss her individual claims against the corporate President and her claims for punitive damages. The Court denied defendants’ summary judgment motion based on the release and found there was a genuine issue of material fact as to punitive damages. The Court did find insufficient evidence to proceed against the corporate president individually. Following these rulings, the case settled with the track operator and the defendant safety consultant for a total of $2,200,000.00. The manufacturer of the motor had previously settled with plaintiffs for $500,000.00.