the metro verdicts monthly d.c. metro

D.C. Metro

Medical Malpractice

Urology patient: Improper procedure led to nerve damage

$8,000,000

Hartman v. Dunne

District of Columbia, Superior Court

Plaintiff Counsel Catherine D. Bertram, Bertram & Amell, PLLC, Washington, DC

Defense Counsel Michael McCubbin; Andrew E. Vernick, Vernick & Associates, LLC, Annapolis, MD

Full report on page 5

employment - Hostile Work environment - retaliation U.S. District Court, DCHUD: Suspended worker posed threat to safety of co-workers . . . . . . . . 6

Medical Malpractice - Negligent treatment - Post-operative Care Baltimore County, MDPerforation was not due to medical negligence: defense . . . . . . . . . . . . . . 7

Motor Vehicle - rear-ender - Intersection Prince George’s County, MDOngoing neck pain was caused by rear-ender, plaintiff argued . . . . . . . . 8

trusts and estates - Undue Influence - Intentional torts Prince George’s County, MDGuardian: Man’s stepchildren not entitled to share of assets . . . . . . . . . . 9

Insurance - Fire - Subrogation Prince George’s County, MDUnion is liable for fire loss damages, insurers argued . . . . . . . . . . . . . . . 12

Medical Malpractice - emergency room Prince George’s County, MDAdministration of drug didn’t cause patient’s death: defense . . . . . . . . . 13

Motor Vehicle - rear-ender - Multiple Vehicle Newport News, VAInjuries from car crash should have resolved quickly: defense . . . . . . . . 14

Civil rights - Police as Defendant- excessive Force U.S. District Court, VAReasonable force was used to subdue arrestee, per police . . . . . . . . . . . 15

Motor Vehicle - Motorcycle - Parking Lot U.S. District Court, VADefense disputed head injury claim of motorcyclist . . . . . . . . . . . . . . . . 16

Cases of Note

ForMerLy tHe Metro VerDICtS MoNtHLy

Vol. 30 Issue 5 • December 2017

table of contents

District of columbia

District of columbia

mEDical malPracticE

Urological Surgery

Verdict $8,000,000 ........................................................5

fEDEral

EmPloYmENt

Hostile Work Environment

Verdict Defense .............................................................6

marYlaND

baltimorE couNtY

mEDical malPracticE

Negligent Treatment

Verdict Defense .............................................................7

moNtGomErY couNtY

EmPloYmENt

Wages and Hours

Decision $12,405 ...........................................................8

PriNcE GEorGE's couNtY

motor VEHiclE

Rear-ender

Verdict $23,000 .............................................................8

trusts aND EstatEs

Undue Influence

Verdict $131,851 ............................................................9

motor VEHiclE

Bus

Verdict $7,050 .............................................................. 10

iNsuraNcE

Fire

Verdict $1,039,177 ....................................................... 12

mEDical malPracticE

Emergency Room

Verdict Defense ........................................................... 13

VirGiNia

NEWPort NEWs

motor VEHiclE

Rear-ender

Verdict $75,000 ........................................................... 14

fEDEral

ciVil riGHts

Police as Defendant

Verdict Defense ........................................................... 15

motor VEHiclE

Motorcycle

Verdict $4,509 ............................................................. 16

Et al...

Attorney Services Directory ......................................... 18

Index ............................................................................20

VerdictSearch d.c. Metro

December 2017 3 www.verdictsearch.com

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DISTRICT OF COLUMBIA

District of columbiaDistrict of columbia

FEATURED VERDICT

mEDical malPracticEUrological Surgery — Surgical Error — Failure to Detect

Urology patient: Improper procedure led to nerve damageVErDict $8,000,000

casE Robert S. Hartman and Ruth Hartman v. Edward Dunne, M.D. and Foxhall Urology Chartered, No. 2015 CA 009658 M

court District of Columbia, Superior Court, DCJuDgE Brian HolemanDatE 9/21/2017

PlaintiffattornEy(s) Catherine D. Bertram, Bertram & Amell,

PLLC, Washington, DC

DEfEnsEattornEy(s) Michael McCubbin, Vernick & Associates,

LLC, Annapolis, MD Andrew E. Vernick, Vernick & Associates,

LLC, Annapolis, MD

facts & allEgations On Oct. 7, 2013, plaintiff Robert S. Hartmann, 69, underwent an open simple retropubic prostatectomy performed by urologist Edward Dunne, M.D. The surgery, which involves the surgical removal of all or part of the prostate gland, was done to treat Hartmann’s benign prostate hyperplasia (BPH), or enlarged prostate. During the surgery, a laceration to the rectum occurred, as well as obliteration of the blood supply to the bladder neck. This reportedly impacted the nerves to the penis, necessitating numerous subsequent procedures.

Hartmann (whose name was incorrectly entered on the court’s docket as Hartman) filed suit against Dunne and his practice, Foxhall Urology, alleging medical malpractice and lack of informed consent.

Hartmann alleged that Dunne selected the wrong surgical approach, which led to Dunne negligently lacerating the rectum. According to Hartmann, Dunne should have performed a TURP (Transurethral Resection of the Prostate), which is a minimally invasive removal of excessive growth of the prostate through the urethra, rather than open surgery. Hartmann asserted that, had TURP been done, he would not have suffered surgical injuries. He also argued that Dunne

failed to identify the rectal injury during surgery and, had he recognized the injury intraoperatively, Dunne could have performed an immediate repair.

Dunne contended that the proper surgical approach was utilized and that the American Urological Association guidelines supported his decision to perform an open prostatectomy instead of TURP due to the size of Hartmann’s prostate. He also argued that failure to recognize the rectal laceration intraoperatively was not a violation in the standard of care.

inJuriEs/DamagEs colostomy; incontinence; loss of consortium; penis; rectum

Hartmann suffered a laceration of the rectum and obliteration of the blood supply to the bladder neck. The nerves to his penis were also impacted and he suffered some urinary stress incontinence. Hartmann required three major reconstructive surgeries, 15 other procedures, more than 60 days in the hospital and 100 doctor visits.

Hartmann sought economic and non-economic damages. His wife Ruth had filed a claim for loss of consortium, but that claim was withdrawn before trial.

The defense disputed that Hartmann’s injuries were due to any negligence on the part of Dr. Dunne.

rEsult The jury found that Dunne and Foxhall Urology were negligent in the treatment provided to Hartmann and that such negligence was a proximate cause of the injuries and damages suffered by Hartmann. The jury further found that Dunne failed to obtain informed consent for the open simple retropubic prostatectomy, but such failure was not a proximate cause of the injuries and damages suffered by Hartmann. The jury determined that Hartmann’s damages totaled $8 million. The case subsequently resolved pursuant to a confidential agreement.

insurEr(s) ProAssurance for both defendants

trial DEtails Trial Length: 3 weeks Trial Deliberations: 6 hours Jury Composition: 8 jurorsPlaintiffExPErt(s) Joel B. Bowers, M.D., radiology,

Washington, DC Arthur H. McTighe, M.D., anatomic

pathology, Baltimore, MD Richard Santucci, M.D., urology,

Detroit, MIDEfEnsEExPErt(s) Kevin McVary, M.D., urology,

Springfield, IL Michael Naslund, M.D., urology,

Baltimore, MD Thomas M. Wheeler, M.D., pathology,

Houston, TX Mark Younis, M.D., radiology, Ripley, WV



DISTRICT OF COLUMBIA

EDitor’s notE This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.

–Margi Banner

fEDEral

EmPloymEntHostile Work Environment — Retaliation — Title VII

HUD: Suspended worker posed threat to safety of co-workersVErDict Defense

casE Sandra Burton v. Shaun Donovan, in his official capacity, U.S. Department of Housing and Urban Development, No. 1:12-cv-1537-CRC

court United States District Court for the District of Columbia, DC

JuDgE Christopher CooperDatE 7/17/2017

PlaintiffattornEy(s) Theresa Owusu, The DGO Law Group,

PLLC, Washington, DC Donald M. Temple, Donald M. Temple,

P.C., Washington, DC

DEfEnsEattornEy(s) Brian J. Field, U.S. Attorney’s Office Civil

Division, Washington, DC Damon W. Taaffe, U.S. Attorney’s Office

Civil Divison, Washington, DC

facts & allEgations In August 2010, plaintiff Sandra Burton, 53, who is white, was a contract specialist with the Department of Housing and Urban Development, and was under the supervision of Elie Stowe, who is black. She claimed that she began to have problems with Stowe at this time. Burton had been transferred in 2009 to the office that Stow supervised as part of a settlement to resolve Burton’s 2008 complaint with HUD’s Equal Employment Opportunity Office against her then-supervisor, Dana Long, accusing her of race discrimination.

Burton alleged that sometime in early August 2010, Stowe asked to see a copy of the Equal Employment Opportunity Office settlement. Burton alleged that she and her supervisor began to have problems shortly thereafter.

Burton alleged that, starting as early as August 2010 and no later than September of that year, Stowe began encouraging Burton to either retire or seek other employment, despite the fact that Burton had never expressed a desire to do either.

Burton also alleged that Stowe repeatedly told Burton that she “hated” her. On Nov. 18, Burton was suspended for three days for “engaging in a heated verbal altercation with her supervisor Stowe.” In July 2011, Burton was given a 30-day suspension. On Jan. 31, 2011, she was suspended for five days for “insubordination and unprofessional conduct.” Burton claimed that on Sept. 22, 2011, she was placed on indefinite administrative leave.

Burton sued HUD Secretary Shaun Donovan for two counts of retaliation in violation of Title VII of the Civil Rights Act of 1964. She also claimed that she was subjected to a hostile work environment. She claimed that she was suspended from her employment in retaliation.

The defense denied all of Burton’s allegations. HUD alleged that in November 2010 Burton acted in an unprofessional and insubordinate manner. She continued to engage in repeated unprofessional and insubordinate conduct, including refusing to perform her duties as required. HUD claimed Burton was given a 30-day suspension as a result.

Burton returned and continued to engage in the unprofessional and insubordinate conduct, HUD claimed. Burton was placed on indefinite administrative leave because her continued presence in the workplace was an immediate threat to the health and safety of co-workers, the defense argued.

Burton disputed HUD’s contention that she was an immediate threat. She argued that she had a 32-year history as a federal employee, and was never before characterized as being a threat to any of her co-workers. She argued she had attained the grade GS-13 level of employment, which is a high-level employee.

inJuriEs/DamagEs emotional distress Burton claimed that she suffered severe emotional distress,

mental anguish and economic harm as a result of the alleged retaliation. She sought to recover $300,000, plus interest, in compensatory damages for each count of retaliation. In addition, Burton sought attorney fees and costs.

rEsult The jury found for HUD and a defense verdict was entered.

trial DEtails Trial Length: 6 days Trial Deliberations: 3 hours Jury Composition: 1 male, 7 female

Post-trial Burton filed an appeal based on the court’s refusal to allow her request that her supervisor’s deposition be introduced as evidence, after the supervisor claimed she could not remember anything regarding her working relation-ship with Burton.

EDitor’s notE This report includes information that was gleaned from documents and an interview of plaintiff’s coun-sel. Defense counsel declined to comment per U.S. Attorney’s Office Civil Division practice.

–Gary Raynaldo

6 December 2017www.verdictsearch.com

VerDictSearch D.c. Metro

MARYLAND

marylanDbaltimorE count y

mEDical malPracticENegligent Treatment — Post-Operative Care

Perforation was not due to medical negligence: defenseVErDict Defense

casE Frances Hopkins v. Valaparambil Sivan, M.D. and Lorraine Ofori, M.D., No. 03-C-15-013159

court Baltimore County, Circuit Court, MDJuDgE Nancy M. PurpuraDatE 10/5/2017

PlaintiffattornEy(s) Brent P. Ceryes, Schochor, Federico &

Staton, PA, Baltimore, MD Jonathan E. Goldberg, Schochor, Federico

& Staton, PA, Baltimore, MD

DEfEnsEattornEy(s) David J. McManus, Baxter, Baker, Sidle,

Conn & Jones, Baltimore, MD

facts & allEgations On Sept. 22, 2014, plaintiff Frances Hopkins, 78 and retired, underwent a total left knee replacement performed at Franklin Square Hospital in Baltimore. She was transferred to Franklin Woods Rehabilitation for in-patient rehabilitation, but was transferred back to Franklin Square Hospital on Oct. 6, 2014, due to the development of a fever and leukocytosis. Hopkins then suffered a perforated sigmoid colon on Oct. 12, 2014, for which she required a colostomy.

Hopkins filed suit against internist Lorraine Ofori, M.D., her attending physician at Franklin Woods and the hospital, and gastroenterologist Valaparambil Sivan, M.D., with whom Ofori had consulted regarding Hopkins’ care.

While undergoing rehabilitation, Hopkins reportedly developed intractable constipation secondary to narcotic medication she was given post-operatively. Ofori prescribed multiple medications to treat the constipation, without good effect. After being transferred back to the hospital on Oct. 6, 2014, Hopkins underwent a CT scan with oral and IV contrast. The CT scan showed severe constipation and severe diverticulitis of the sigmoid colon. At that point, Ofori consulted with a number of specialists, including Sivan. Following the consultations, Ofori treated the diverticulitis with antibiotics and the constipation with Fleet enemas. However, Hopkins did not improve and subsequently suffered a perforation of the sigmoid colon. Hopkins alleged that the

enemas she was given were contraindicated and caused the perforation.

The defense contended that the enemas were safe and did not cause the perforation. Rather, the defense asserted that the perforation was caused by the severe constipation and severe inflammation from the diverticulitis, as demonstrated by the CT scan.

inJuriEs/DamagEs bowel/colon/intestine, perforation; colostomy; peritonitis

Hopkins suffered a perforated sigmoid colon and peritonitis. She required a colostomy and multiple corrective surgeries.

Hopkins sought economic and non-economic damages.The defense did not dispute that Hopkins suffered

from post-operative complications, but argued that those complications were not due to negligence and no damages were due or owing.

rEsult The jury found for Ofori and Sivan and a defense verdict was entered.

DEmanD $1.2 millionoffEr None

insurEr(s) Medical Mutual Liability Insurance Society of Maryland for Sivan and Ofori

trial DEtails Trial Length: 8 days Trial Deliberations: 1 hour Jury Composition: 6 jurorsPlaintiffExPErt(s) Michael S. Drew, M.D., general surgery,

New York, NY Todd Eisner, M.D., gastroenterology,

Boca Raton, FL Jonathan Fish, M.D., internal medicine,

Columbia, MD Nadine Taniguchi, R.N., life care planning,

Bala Cynwyd, PADEfEnsEExPErt(s) Lawrence Fitzpatrick, M.D., general

surgery, Baltimore, MD David Kafonek, M.D., gastroenterology,

Towson, MD Trudy R. Koslow, M.Ed., CRC, CCM,

CLCP, life care planning, Alexandria, VA Frank Ryan, M.D., internal medicine,

Fort Washington, MD

EDitor’s notE This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to a request for comment.

–Margi Banner



MARYLAND

montgomEry count y

EmPloymEntWages and Hours — Employment — Compensation

Food prep chef claimed he wasn’t paid minimum wage/OTDEcision $12,405

casE Jose Luis Flores Guardado v. Pho D’Lite College Park, LLC, Jennifer Yau and Irene Song, No. 422408V

court Montgomery County, Circuit Court, MDJuDgE Karla N. SmithDatE 10/19/2017

PlaintiffattornEy(s) Anthony Bizien, Zipin, Amster &

Greenberg, LLC, Silver Spring, MD

DEfEnsEattornEy(s) Bart Colombo, O’Reilly & Mark, P.C.,

Round Hill, VA

facts & allEgations From sometime in February to sometime in April 2016, plaintiff Jose Luis Flores Guardado, 30, worked as a food preparation chef at Pho D’Lite College Park restaurant, owned by Jennifer Yau and Irene Song. Guardado claimed he was owed money from the time of his employment.

Guardado sued Pho D’Lite, Yau and Song, alleging that he had not been fairly compensated, in violation of Maryland wage laws.

Guardado alleged that he was paid less than the minimum wage and had not been compensated for overtime hours that he worked. Guardado provided evidence of the hours he worked through his own testimony and the testimony of other restaurant employees.

The defense contended that Guardado did not work the hours he alleged. The defense presented as evidence a schedule reportedly reflecting the number of hours worked by Guardado.

inJuriEs/DamagEs Guardado sought $4,135.10 in past underpaid wages and overtime, as well as treble damages.

The defense disputed that any damages were due or owing.

rEsult Following a bench trial, the court found for Guardado and determined that his damages totaled $4,135.10. The award was trebled to $12,405.30 pursuant to the Maryland Labor and Employment Code § 3-507.

JosE luis florEs guarDaDo

$4,135 past lost earnings/overtime $8,270 treble damages $12,405

Post-trial Post-trial motions were pending at the time of publication.

EDitor’s notE This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to to the reporter’s phone calls.

–Margi Banner

PrincE gEorgE's count y

motor VEHiclERear-ender — Intersection — Multiple Vehicle

Ongoing neck pain was caused by rear-ender, plaintiff arguedVErDict $23,000

casE Annie Wright v. Julias Wright, Jr. and Liberty Mutual Insurance Company, No. CAL16-22350

court Prince George’s County, Circuit Court, MDJuDgE Herman C. DawsonDatE 11/1/2017

PlaintiffattornEy(s) Thomas E. Pyles, Law Offices of Thomas E.

Pyles, PA, Waldorf, MD

DEfEnsEattornEy(s) Timothy C. Fitzgerald, Law Offices of

Jonathan Stebenne, Baltimore, MD (Liberty Mutual Insurance Co.)

Michael T. O’Bryant, Lipshultz & Hone, Chartered, Silver Spring, MD (Julias Wright, Jr.)

facts & allEgations In April 2014, plaintiff Annie Wright, 65 and retired, was operating her vehicle on Route 1 in Hyattsville. She was in a line of traffic that had stopped for a red light at an intersection and was rear-ended by a vehicle driven by Julias Wright, Jr. (no relation). Defendant Wright had attempted to drive between two vehicles so as not to impact plaintiff’s car, but nonetheless hit the side of her car, causing $1,800 in property damage. Plaintiff claimed soft tissue whiplash injuries to her neck as a result of being jostled back and forth in the impact.

Plaintiff filed suit against defendant Wright, alleging that he was negligent in the operation of a motor vehicle. Plaintiff



MARYLAND

also pursued a claim against her underinsured motorist carrier, Liberty Mutual Insurance Company, in the event her damages exceeded the tortfeasor’s policy limits.

Plaintiff alleged that defendant Wright failed to maintain an appropriate distance between the vehicles. She also argued that defendant Wright failed to keep a proper lookout, failed to control his vehicle and failed to stop in time to avoid the accident.

Defendant Wright did not dispute that his vehicle struck the plaintiff’s car, but contended that the impact was minor. The case proceeded on the issues of injury causation and damages.

inJuriEs/DamagEs aggravation of pre-existing condition; chiropractic; soft tissue; sprain, cervical; strain, cervical; whiplash

Annie Wright sought medical treatment for complaints of neck pain. She was diagnosed with soft tissue whiplash injuries to her cervical spine.

Wright initially received chiropractic treatment. Two months after the accident, she sought intermittent treatment over a three-month period with an orthopedist for ongoing neck pain.

Wright was not a surgical candidate and admitted to having prior neck complaints. However, she argued that the subject accident aggravated her prior neck condition. She sought $15,000 in medicals, as well as damages for pain and suffering.

The defense disputed the nature and extent of Annie Wright’s damages, contending that a prior MRI revealed degenerative disc disease, which was unrelated to the subject accident. Further, the defense argued that the minor accident could not have caused serious injuries.

rEsult The jury determined that Annie Wright’s damages totaled $23,000, which was within the tortfeasor’s liability policy limits.

DEmanD N/AoffEr $22,000

insurEr(s) Liberty Mutual Insurance Co. for Annie Wright (underinsured carrier)

Maryland Automobile Insurance Fund for Julias Wright (liability)

trial DEtails Trial Length: 1 day Trial Deliberations: 2.5 hours Jury Composition: 6 jurors

Post-trial There was no appeal and this case is closed.

EDitor’s notE This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to a request for comment.

–Margi Banner

trusts anD EstatEsUndue Influence — Intentional Torts

Guardian: Man’s stepchildren not entitled to share of assetsVErDict $131,851

actual $147,673

casE Ronald Mattox and William B. Mattox, Guardians of Wanda E. Mattox, and Ronald Mattox, Individually v. Jean Greene, No. CAL16-27752

court Prince George’s County, Circuit Court, MDJuDgE Sean D. WallaceDatE 10/13/2017

PlaintiffattornEy(s) Walter W. Green, Law Office of Walter W.

Green, College Park, MD

DEfEnsEattornEy(s) Timothy P. Leahy, Byrd & Byrd, LLC,

Bowie, MD

facts & allEgations In 2012, plaintiffs Ronald Mattox, William Mattox and Wanda E. Mattox were the alleged beneficiaries of life insurance policies and co-owners of bank accounts of their stepfather. They claimed that Jean Greene, as guardian of their stepfather’s assets, had removed their names from the bank accounts and as beneficiaries of the life insurance policies.

The Mattoxes filed suit against Greene, alleging undue influence and unjust enrichment, among other claims. They claimed that their names should not have been removed from the accounts and life insurance policies and that removing their names from those assets directly benefited Greene.

Greene contended that none of the money in the bank accounts was put there by the Mattoxes and the Mattoxes had not contributed to the assets. Therefore, she argued, it was not their money. As to being the beneficiaries of the life insurance, Greene asserted that the Mattoxes had previously taken a lot of money from the estate and they were not entitled to more of the assets.

inJuriEs/DamagEs The Mattoxes sought proceeds from bank accounts and life insurance policies in the name of their stepfather.

The defense contended that the Mattoxes were not entitled to any proceeds.

rEsult The jury found for the Mattoxes on the unjust enrichment claim, but returned defense verdicts on the other claims. The jury determined that the Mattoxes’ damages totaled $131,851.24. They were also awarded $15,822.15 in interest, for a total judgment of $147,673.39.



MARYLAND

trial DEtails Trial Length: 2 days Trial Deliberations: 1 day Jury Composition: 6 jurors

EDitor’s notE This report is based on information that was provided by defense counsel. Plaintiffs’ counsel did not respond to a request for comment.

–Margi Banner

motor VEHiclEBus — Negligent Supervision — Worker/Workplace Negligence

School bus driver’s negligence led to child’s injury: lawsuitVErDict $7,050

casE Lakisa Johnson, Individually and as Next Friend of R.S., a minor v. Prince George’s County Board of Education, No. CAL16-27105

court Prince George’s County, Circuit Court, MDJuDgE Dwight David JacksonDatE 9/26/2017

PlaintiffattornEy(s) John F.X. Costello, Law Firm of John F.X.

Costello & Associates, LLC, Camp Springs, MD

DEfEnsEattornEy(s) Michael A. Mitchell, General Counsel

Prince George’s County, Upper Marlboro, MD

facts & allEgations Plaintiff R.S., 6, was riding a Prince George’s County Board of Education school bus on the date in question. Another child who was on the bus allegedly jumped on R.S., causing R.S. to strike her head. R.S. suffered a scalp laceration.

Lakisa Johnson, next friend of R.S., filed this lawsuit on behalf of R.S. against the Prince George’s County Board of Education, alleging negligence.

Johnson alleged that the school bus driver failed to keep a proper lookout for the safety of children on her bus. Johnson argued that the driver was distracted from her duties at the time of this incident.

The defense contended the the bus driver was not negligent and was not distracted. According to the defense, this was an unfortunate incident in which no negligence was involved.

inJuriEs/DamagEs head; laceration; scar and/or disfigurement

R.S. suffered a scalp laceration, which required emergency treatment, including stitches to close the wound. She was left with a minor scar, but made a good recovery.

Johnson sought $2,000 in medical expenses. She also sought damages for pain and suffering.

The defense disputed the nature and extent of the damages.

rEsult The jury found for Johnson and R.S. and determined that R.S.’s damages totaled $7,050.

trial DEtails Trial Length: 3 days Trial Deliberations: 3 hours Jury Composition: 6 jurors


EDitor’s notE This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to a request for comment.

–Margi Banner

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MARYLAND

insurancEFire — Subrogation

Union is liable for fire loss damages, insurers arguedVErDict $1,039,177

actual $1,342,550

casE Erie Insurance Exchange a/s/o Gordon Contractors Inc., Continental Casualty Company a/s/o Gordon Contractors Inc., and Gordon Contractors Inc. v. Stemafitters Local Union No. 602 / The Cincinnati Insurance Company v. Steamfitters Local Union No. 602, No. CAL15-38293 / CAL16-07205

court Prince George’s County, Circuit Court, MDJuDgE James Patrick SalmonDatE 7/20/2017

PlaintiffattornEy(s) Thomas A. Marsh, Stutman Law, Ft.

Washington, PA (Cincinnati Insurance Co.) Howard S. Stevens, Pascale Stevens,

Baltimore, MD (Cincinnati Insurance Co.) Eric N. Stravitz, Stravitz Law Firm, PC,

Lanham, MD (Continental Casualty Co., Erie Insurance Co., Gordon Contractors Inc.)

Lawrence F. Walker, Cozen O’Connor, Philadelphia, PA (Continental Casualty Co., Erie Insurance Co., Gordon Contractors Inc.)

DEfEnsEattornEy(s) James S. Liskow, Decaro, Doran, Siciliano,

Gallagher & DeBlasis, LLP, Bowie, MD

facts & allEgations On April 6, 2015, plaintiffs Erie Insurance Exchange, Continental Casualty Company and The Cincinnati Insurance Company’s insureds, including plaintiff Gordon Contractors Inc., suffered property loss from a fire. They sought reimbursement of the fire losses from adjacent property owner Steamfitters Local Union No. 602.

Erie Insurance Exchange a/s/o Gordon Contractors Inc., Continental Casualty Company a/s/o Gordon Contractors Inc. and Gordon Contractors Inc., individually, filed suit against the union. A separate lawsuit was filed by The Cincinnati Insurance Company, which insured property owned by Falco Industries, Inc., C&M Properties and Garage Center, LLC. The lawsuits, which were consolidated, sought reimbursement of the fire loss damages.

The insurers alleged that, on the date of the fire, the union was holding apprentice classes when one of the apprentices threw a cigarette butt into the mulch on the union’s property. According to the insurers, a fire ignited and spread from the union’s property to adjacent properties where insulation materials and industrial equipment were stored. It was a very windy day and those materials went up in flames.

The insurers argued that the union had a duty to ensure its apprentice classes were safely conducted and that participants were supervised. The insurers asserted that the union failed to do so.

Steamfitters Local Union No. 602 contended that the plaintiffs presented no evidence of a duty owed to them or a breach of that duty. The defense further argued that the fire could have been arson or a vehicle on the plaintiffs’ insureds’ side of the fence, but even if it was caused by a cigarette from an apprentice, the apprentice would have been a third party who was not an employee of the union. Steamfitters also argued that the adjacent property owners were contributorily negligent in that they violated fire codes by storing materials too close to the property line.

In response, the insurers admitted that materials were stored too close to the property line in violation of the fire codes. However, they argued that the materials would have burned even if they had been stored farther away from the property line and in compliance with the fire codes.

inJuriEs/DamagEs The plaintiffs sought in excess of $1 million for loss of insulation materials and equipment as a result of the fire.

rEsult The jury found for the plaintiffs and awarded $1,039,176.67 in damages and judgment was entered in that amount against Steamfitters Local Union No. 602. The judg-ment was subsequently amended on a motion by the plain-tiffs. The amended judgment awarded $1,039,176.67 to Erie Insurance Company Exchange a/s/o Gordon Contractors; $111,125.38 to Gordon Contractors, individually; $72,338.48 to Continental Casualty Company a/s/o Gordon Contractors; and $119,909.10 to The Cincinnati Insurance Company a/s/o Falco Industries, Inc., C&M Properties, LLC, C&M Properties Delaware, LLC and Garage Center, LLC, for a total of $1,342,549.63.

trial DEtails Trial Length: 3 days Trial Deliberations: 1 hour Jury Composition: 6 jurors

Post-trial Defendant appealed the verdict.

EDitor’s notE This report is based on information that was provided by counsel for plaintiffs Erie Insurance, Continental Insurance and Gordon Contractors, as well as defense counsel.

–Margi Banner



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Please use this form for reporting verdicts or settlements. If you prefer to dictate a letter, use this form as a guide. You may reproduce this form as needed. Please be sure to retain a copy for your records. NOTE:

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2. INDEX NO. 3. JUDGE 4. COURT AND COUNTY

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13. JURY POLL 14. TIME JURY WAS OUT

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16. POST-TRIAL MOTIONS AND RESULTS (please be as specific as possible)

17. HAS NOTICE OF APPEAL BEEN FILED? 18. IF SO, BY WHOM?

19. INSURANCE CARRIER(S) (it is essential that you indicate each insurer and what party it insured)

20. DATE, TIME AND PLACE OF ACCIDENT OR OCCURRENCE

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23. PLAINTIFF’S INJURIES, TREATMENT AND RESIDUALS (please include ALLEGATIONS AND DEFENSES on damages. Be specific concerning MEDICAL TESTIMONY)

24. SPECIALS

25. AMOUNT ASKED OF JURY

26. DEMAND 27. OFFER

28. PLAINTIFF’S EXPERTS (please include expert’s specialty, city, company affiliation and, if called, the name of attorney who called the witness)

29. DEFENDANT’S EXPERTS (please include expert’s specialty, city, company affiliation and, if called, the name of attorney who called the witness)

30. OTHER COMMENTS (especially concerning matters critical to the outcome of the case. In your opinion, what was the TURNING POINT in the case? What were the results of POST-VERDICT JURY INTERVIEWS? If necessary, use paragraph numbers to add more information from previous pages. Please use additional page if needed)

Thank you! 3

MARYLAND

mEDical malPracticEEmergency Room — Prescription and Medication — Wrongful Death

Administration of drug didn’t cause patient’s death: defenseVErDict Defense

casE James Walker, III, Individually and as Personal Representative of the estate of Lisa R. Walker and Veronica Agbaegbu v. Arian Ahmadzai, P.A., Medical Emergency Professionals, LLC, Medstar Southern Maryland Hospital and Jane Doe, R.N., No. CAL14-24421

court Prince George’s County, Circuit Court, MDJuDgE Thomas P. SmithDatE 6/15/2017

PlaintiffattornEy(s) Joseph B. Chazen, Meyers, Rodbell &

Rosenbaum P.A., Riverdale Park, MD Paul A. Turkheimer, Meyers Rodbell &

Rosenbaum PA, Riverdale Park, MD

DEfEnsEattornEy(s) Larry D. McAfee, Gleason, Flynn, Emig &

Fogleman & McAfee, Chartered, Rockville, MD (Arian Ahmadzai, P.A., Medical Emergency Professionals, LLC)

None reported (Jane Doe, R.N., Southern Maryland Hospital)

facts & allEgations In 2011, plaintiff’s decedent Lisa R. Walker, 41, an administrative assistant, was seen by a doctor at Kaiser and sent to Medstar Southern Maryland Hospital for complaints of respiratory difficulties. She was suffering from a compromised airway due to an infection in her throat when seen by physician’s assistant Arian Ahmadzai, P.A. Ahmadzai administered labetalol, a medicine to replace what Walker had been taking for high blood pressure. Walker suffered multiple cardiac arrests, as well as brain damage due to a lack of oxygen. She died several days later.

Walker’s husband, James Walker, III, individually and as personal representative of the estate of Lisa R. Walker, and her mother, Veronica Agbaegbu, filed suit against Ahmadzai and his employer, Medical Emergency Professionals, LLC, as well as Medstar Southern Maryland Hospital and its nurse, Jane Doe, R.N. (There were several different lawsuits filed that were consolidated into one case.) The lawsuit alleged medical malpractice and wrongful death.

Medstar Southern Maryland Hospital and its nurse settled for a confidential amount prior to trial. The case proceeded against Ahmadzai and his employer.

The lawsuit alleged that Ahmadzai ordered the administration of 40 mg of labetalol, which was a violation

in the standard of care and resulted in an overdose. According to the estate, this dosage of labetalol caused an acute drop in Walker’s blood pressure, resulting in cardiac arrest.

The defense argued that the patient was already suffering from compromised respiratory output and there was no evidence that the labetalol could cause cardiac arrest. The defense denied any violations in the standard of care.

This case was originally tried in 2016 and resulted in a hung jury.

inJuriEs/DamagEs anoxia; brain damage; cardiac arrest; death; emotional distress; loss of consortium; loss of society; respiratory distress

Lisa Walker died from an alleged overdose of labetalol, which caused cardiac arrest and severe brain damage. She was survived by her spouse and extended family.

The defense contended that Walker died of respiratory complications that resulted in cardiac arrest, which was unrelated to the use of labetalol.

rEsult The jury found for Ahmadzai and Medical Emergency Professionals and a defense verdict was entered.

DEmanD In excess of $600,000offEr None

insurEr(s) ProAssurance for Ahmadzai and Medical Emergency Professionals

trial DEtails Trial Length: 3 weeks Trial Deliberations: 3 hours Jury Composition: 6 jurors

PlaintiffExPErt(s) None reported

DEfEnsEExPErt(s) Renee Reid, M.D., emergency medicine,

Richmond, VA Bradford Winters, M.D., Ph.D., pain

management, Baltimore, MD


EDitor’s notE This report is based on information that was provided by defense counsel for Ahmadzai and Medical Emergency Professionals. Plaintiffs’ counsel did not respond to a request for comment.

–Margi Banner

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VIRGINIA

VirginianEWPort nEWs

motor VEHiclERear-ender — Multiple Vehicle

Injuries from car crash should have resolved quickly: defenseVErDict $75,000

casE Carol T. Stafford v. John Patrick Dennis, No. CL1601032T01

court Newport News City, Circuit Court, VAJuDgE Bryant L. SuggDatE 7/13/2017

PlaintiffattornEy(s) Wallace B. Wason, Jr., Jones, Blechman,

Woltz & Kelly, Newport News, VA

DEfEnsEattornEy(s) David L. Hauck, Duane, Hauck, Davis &

Gravatt, PC, Richmond, VA

facts & allEgations On Dec. 19, 2014, plaintiff Carol T. Stafford, 67, a nurse, was operating a vehicle on westbound I-64 in Newport News. She was driving in heavy traffic. When she slowed for vehicles in front of her, she was rear-ended by a vehicle driven by John Patrick Dennis. Stafford claimed a facial laceration, concussion and soft tissue neck, back and shoulder injuries.

Stafford filed suit against Dennis, alleging that Dennis was negligent in the operation of a motor vehicle.

Stafford alleged that Dennis was following too closely and failed to control his vehicle. She also argued that Dennis failed to keep a proper lookout and failed to stop in time to avoid the accident.

Denis admitted liability for causing the accident. The case proceeded on the issues of injury causation and damages.

inJuriEs/DamagEs anxiety; back and neck; concussion; facial laceration; hematoma; scar and/or disfigurement; shoulder; soft tissue

Stafford claimed a concussion, facial laceration and hematoma at the eyebrow and soft tissue neck, back and left shoulder injuries.

Stafford complained of anxiety related to driving a car, ongoing shoulder pain and scarring from the laceration. She sought $14,400 in medicals and $725 in lost wages, as well as damages for pain and suffering.

Dennis contended that Stafford was not seriously injured and should have recovered within a few weeks of the accident. The defense also disputed the nature and extent of

the damages sought by Stafford.

rEsult The jury determined that Stafford’s damages totaled $75,000.

DEmanD $100,000offEr $70,000

insurEr(s) USAA for Dennis

trial DEtails Trial Length: 1 day Trial Deliberations: 2 hours Jury Composition: 7 jurors


EDitor’s notE This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to a request for comment.

–Margi Banner

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VIRGINIA

fEDEral

ciVil rigHtsPolice as Defendant — Excessive Force — 42 USC 1983

Reasonable force was used to subdue arrestee, per policeVErDict Defense

casE Latron Dupree Brown v. Ablemarle County Police Department, Dell Johnson, John McKay, Tavis Coffin, Jon Suitz, M. Fraizer, Hatter, Wormley, Mark Jones, McCall and Brake, No. 7:14-cv-576-NKM-RSB

court U.S. District Court, Western District, VAJuDgE Norman K. MoonDatE 10/26/2017

PlaintiffattornEy(s) Latron Dupree Brown, Pro Se

DEfEnsEattornEy(s) Jim H. Guynn, Jr., Guynn & Waddell, PC,

Salem, VA Richard H. Milnor, Taylor Zunka Milnor &

Carter LTD, Charlottesville, VA

facts & allEgations On Dec. 19, 2013, plaintiff Latron Dupree Brown, 35, was arrested in Ablemarle County and charged with narcotics possession and trafficking, as well as firearm charges. Brown pleaded no contest to the charges and was sentenced to jail. However, he claimed his civil rights were violated during his arrest.

Brown, acting pro se, sued the Ablemarle County Police Department and police officers Dell Johnson, John McKay, Tavis Coffin, Jon Suitz, M. Fraizer, Hatter, Wormley, Mark Jones, McCall and Brake. Brown alleged his civil rights were violated pursuant to 42 U.S.C. § 1983. Brown alleged the police officers used excessive force, denied him medical assistance and conducted an unlawful search of his mother’s home during the course of his arrest.

Prior to trial, all of the police officers except Officer Johnson were dismissed from the case. Ablemarle County Police Department was also dismissed from the case prior to trial.

Brown alleged he was in his vehicle when the police officers approached him. He claimed Officer Johnson busted the driver’s side window with his handgun, pulled him out of the vehicle and onto the ground, where he was handcuffed. Brown alleged that officers Seitz, Jones, Brake, Wormley and Coffin all placed their hands and knees on top of his back as he laid face down and posing no threat to the officers or any resistance. Brown further claimed that Officer Johnson started twisting his left wrist until it broke. Brown also

claimed the officers discharged their Tasers several times into his back as he lay on the ground offering no resistance. He further maintained that officers Johnson, Frazier, Hatter and McKay entered his mother’s home without a search warrant and while no one was present, in violation of his federal civil rights.

The defense contended that the police officers utilized necessary, reasonable force to restrain, subdue and handcuff Brown. The defense argued that the police officers approached Brown while clearly identifying themselves as police officers and noted that the officers were wearing jackets with “POLICE” clearly emblazoned in large white letters. The defense argued that Brown refused to exit the vehicle when the officers initially approached him and that Officer Jones placed his gun on the driver’s side window and ordered Brown to get out. The defense asserted that Brown then reversed his vehicle for about five feet, prompting another officer to smash the driver’s window with his baton. The defense argued that Brown was then pulled out of the vehicle to the ground. Per the defense, Brown began squirming and struggling while on the ground, refusing to be restrained and handcuffed. The defense contended that the officers shouted, “Taser, Taser, Taser” to Brown, alerting him that a Taser was about to be used against him unless he did not stop struggling and resisting. The defense argued that Brown did not obey the officers’ commands and the Taser was then utilized on him twice.

The defense contended that an ambulance was called, but Brown continued to struggle while in the ambulance. According to the defense, police had no choice but to divert the ambulance to the police station for the safety of Brown, the officers and the emergency medical crew.

inJuriEs/DamagEs burns, Taser; fracture, wrist Brown suffered a fracture of his left wrist. He sought

unspecified compensatory damages.

rEsult The jury found that Officer Johnson did not use excessive force during the arrest of Brown. A defense verdict was entered.

trial DEtails Trial Length: 4 days Trial Deliberations: 3 hours

EDitor’s notE This report is based on information that was provided by defense counsel and information gleaned from court documents. Plaintiff was pro se and was not asked to contribute to the report.

–Gary Raynaldo

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VIRGINIA

motor VEHiclEMotorcycle — Parking Lot — Broadside

Defense disputed head injury claim of motorcyclistVErDict $4,509

casE John Bradley Ray v. Jamie Stapleton Rock, No. 1:16-cv-30-JPJ-PMS

court U.S. District Court, Western District, VAJuDgE James P. JonesDatE 10/4/2017

PlaintiffattornEy(s) Michael A. Bragg, Bragg Law PLC,

Abingdon, VA Robert T. Copeland, Copeland & Bieger

PC, Abingdon, VA

DEfEnsEattornEy(s) James L. Humphreys, Hunter, Smith &

Davis, LLP, Kingsport, TN

facts & allEgations On Feb. 15, 2016, plaintiff John Bradley Ray, 35, a supervisor, was driving his motorcycle on Lee Highway in Bristol. He collided with a minivan operated by Jamie Stapleton Rock as Rock was pulling out of a McDonald’s parking lot onto Lee Highway. Ray’s motorcycle struck the driver’s side of Rock’s minivan. Ray claimed a closed head injury as a result of the accident.

Ray sued Rock, alleging that Rock was negligent in the operation of her vehicle.

Ray alleged that Rock failed to keep a proper lookout for any vehicles traveling on Lee Highway before pulling into the roadway. Ray also argued that Rock failed to yield.

Rock contended that she never saw Ray until the impact. She claimed Ray was contributorily negligent because he had enough time to slow and move into another lane to avoid the collision, but failed to do so. In response, Ray claimed he was unable to change lanes because another vehicle was in the nearest lane to his right.

inJuriEs/DamagEs closed head injury; memory, impairment; traumatic brain injury; unconsciousness

Ray was taken by ambulance to a local emergency room. He claimed the impact rendered him unconscious at the accident scene. He was diagnosed with a closed head injury, underwent X-rays and was discharged. Ray claimed he suffered a traumatic brain injury, with memory loss.

Ray’s treating neurologist opined that Ray suffered a TBI with memory loss.

Ray claimed $8,000 in past medicals. He also sought damages for future medicals and past and future pain and suffering. His attorney suggested that the jury award $350,000 in damages.

The defense’s neurology expert opined that Ray did not suffer a TBI. The expert also noted that the emergency room medical records indicated that Ray was not unconscious at the accident scene, nor at the hospital. The expert further opined that Ray had pre-existing optic neuritis, a warning symptom for multiple sclerosis. The expert asserted that Ray was under the care of a neurologist prior to the accident and was being monitored for multiple sclerosis due to a family history of MS. He also noted that Ray did not claim he had memory loss until one year after the accident and opined that MRI imaging did not indicate any condition which would cause memory loss.

rEsult The jury determined that Rock was 100 percent lia-ble for the accident and awarded $4,509 in damages to Ray.

insurEr(s) Cincinnati Insurance Co. for Rock

trial DEtails Trial Length: 3 days Trial Deliberations: 2 hours

PlaintiffExPErt(s) Otakar Krcal, M.D., neurology,

Kingsport, TN (treating doctor)

DEfEnsEExPErt(s) Ken Smith, M.D., neurology, Kingsport, TN

EDitor’s notE This report is based on information that was provided by defense counsel. Plaintiff’s counsel did not respond to the reporter’s phone calls.

–Gary Raynaldo

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Index

Attorneys

Bertram, Catherine D. . . . . . . . . . . . . . . . . 5

Bizien, Anthony . . . . . . . . . . . . . . . . . . . . . 8

Bragg, Michael A.. . . . . . . . . . . . . . . . . . . 16

Brown, Latron Dupree . . . . . . . . . . . . . . . 15

Ceryes, Brent P. . . . . . . . . . . . . . . . . . . . . . . 7

Chazen, Joseph B. . . . . . . . . . . . . . . . . . . 13

Colombo, Bart. . . . . . . . . . . . . . . . . . . . . . . 8

Copeland, Robert T. . . . . . . . . . . . . . . . . . 16

Costello, John F.X.. . . . . . . . . . . . . . . . . . . 10

Field, Brian J. . . . . . . . . . . . . . . . . . . . . . . . 6

Fitzgerald, Timothy C. . . . . . . . . . . . . . . . . 8

Goldberg, Jonathan E. . . . . . . . . . . . . . . . . 7

Green, Walter W. . . . . . . . . . . . . . . . . . . . . 9

Guynn, Jim H. Jr. . . . . . . . . . . . . . . . . . . . 15

Hauck, David L.. . . . . . . . . . . . . . . . . . . . . 14

Humphreys, James L.. . . . . . . . . . . . . . . . 16

Leahy, Timothy P. . . . . . . . . . . . . . . . . . . . . 9

Liskow, James S.. . . . . . . . . . . . . . . . . . . . 12

Marsh, Thomas A. . . . . . . . . . . . . . . . . . . 12

McAfee, Larry D. . . . . . . . . . . . . . . . . . . . . 13

McCubbin, Michael . . . . . . . . . . . . . . . . . . 5

McManus, David J. . . . . . . . . . . . . . . . . . . . 7

Milnor, Richard H. . . . . . . . . . . . . . . . . . . 15

Mitchell, Michael A. . . . . . . . . . . . . . . . . . 10

O’Bryant, Michael T. . . . . . . . . . . . . . . . . . . 8

Owusu, Theresa . . . . . . . . . . . . . . . . . . . . . 6

Pyles, Thomas E.. . . . . . . . . . . . . . . . . . . . . 8

Stevens, Howard S. . . . . . . . . . . . . . . . . . 12

Stravitz, Eric N. . . . . . . . . . . . . . . . . . . . . . 12

Taaffe, Damon W. . . . . . . . . . . . . . . . . . . . . 6

Temple, Donald M.. . . . . . . . . . . . . . . . . . . 6

Turkheimer, Paul A. . . . . . . . . . . . . . . . . . 13

Vernick, Andrew E.. . . . . . . . . . . . . . . . . . . 5

Walker, Lawrence F. . . . . . . . . . . . . . . . . . 12

Wason, Wallace B. Jr. . . . . . . . . . . . . . . . . 14

Cases

Brown v. Ablemarle County

Police Department . . . . . . . . . . . . . . 15

Burton v. Donovan . . . . . . . . . . . . . . . . . . . 6

Erie Insurance Exchange v. Steamfitters

Local Union No. 602 . . . . . . . . . . . . . 12

Guardado v. Pho D'Lite

College Park, LLC. . . . . . . . . . . . . . . . . 8

Hartman v. Dunne . . . . . . . . . . . . . . . . . . . 5

Hopkins v. Sivan . . . . . . . . . . . . . . . . . . . . . 7

Johnson v. Prince George's County

Board of Education. . . . . . . . . . . . . . 10

Mattox v. Greene . . . . . . . . . . . . . . . . . . . . 9

Ray v. Rock . . . . . . . . . . . . . . . . . . . . . . . . 16

Stafford v. Dennis. . . . . . . . . . . . . . . . . . . 14

Walker v. Ahmadzai . . . . . . . . . . . . . . . . . 13

Wright v. Wright. . . . . . . . . . . . . . . . . . . . . 8

Courts

Baltimore County . . . . . . . . . . . . . . . . . . . . 7

District of Columbia . . . . . . . . . . . . . . . . . . 5

Federal. . . . . . . . . . . . . . . . . . . . . . . . . . .6,15

Montgomery County . . . . . . . . . . . . . . . . . 8

Newport News . . . . . . . . . . . . . . . . . . . . . 14

Prince George’s County . . . . . . . . . . . . . . . 8

Experts

ANATOMIC PATHOLOGY

McTighe, Arthur H. M.D. . . . . . . . . . . . . . . 5

EMERGENCY MEDICINE

Reid, Renee M.D. . . . . . . . . . . . . . . . . . . . 13

GASTROENTEROLOGY

Eisner, Todd M.D. . . . . . . . . . . . . . . . . . . . . 7

Kafonek, David M.D. . . . . . . . . . . . . . . . . . 7

GENERAL SURGERY

Drew, Michael S. M.D. . . . . . . . . . . . . . . . . 7

Fitzpatrick, Lawrence M.D. . . . . . . . . . . . . 7

INTERNAL MEDICINE

Fish, Jonathan M.D. . . . . . . . . . . . . . . . . . . 7

Ryan, Frank M.D. . . . . . . . . . . . . . . . . . . . . 7

LIFE CARE PLANNING

Trudy R. Koslow, M.Ed., CRC,

CCM, CLCP . . . . . . . . . . . . . . . . . . . . . . 7

Taniguchi, Nadine R.N. . . . . . . . . . . . . . . . 7

NEUROLOGY

Krcal, Otakar M.D. . . . . . . . . . . . . . . . . . . 16

Smith, Ken M.D. . . . . . . . . . . . . . . . . . . . . 16

PAIN MANAGEMENT

Winters, Bradford M.D., Ph.D.. . . . . . . . . 13

PATHOLOGY

Wheeler, Thomas M. M.D. . . . . . . . . . . . . . 5

RADIOLOGY

Bowers, Joel B. M.D. . . . . . . . . . . . . . . . . . 5

Younis, Mark M.D. . . . . . . . . . . . . . . . . . . . 5

December 2017www.verdictsearch.com20


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Index

reporting procedure: The case reports in this publication are based on leads gathered from various sources, including submissions from attorneys, court dockets and articles appearing in ALM publications or on news wires.

We begin the reporting process by speaking to an attorney involved in the case and preparing a draft report. We then attempt to contact counsel for all parties via fax and phone. If an attorney does not respond by press time, we note this in the published text. Otherwise, we incorporate all comments we receive, subject to editing for style, clarity, grammar, brevity and sense.

In addition to the amount awarded by the jury or judge, reports include, where applicable, the plaintiff’s “net” recovery, arrived at after factoring in: plaintiff’s comparative liability as well as the liability assigned to previously settling defendants; high-low agreements; amounts paid by settling defendants or set-offs of said amounts; stipulated damages not submitted to the jury; punitive damages, interest, and attorney fees and costs if awarded by judge following verdict (otherwise in gross award); post-trial remittitur or additur and the impact of trebling and statutory caps.

UROLOGY

McVary, Kevin M.D. . . . . . . . . . . . . . . . . . . 5

Naslund, Michael M.D. . . . . . . . . . . . . . . . 5

Santucci, Richard M.D.. . . . . . . . . . . . . . . . 5

Injuries

aggravation of pre-existing condition . . . .9

anoxia . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

anxiety. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

back and neck. . . . . . . . . . . . . . . . . . . . . . 14

bowel/colon/intestine, perforation. . . . . 7

brain damage . . . . . . . . . . . . . . . . . . . . . . 13

burns, Taser. . . . . . . . . . . . . . . . . . . . . . . . 15

cardiac arrest . . . . . . . . . . . . . . . . . . . . . . 13

chiropractic . . . . . . . . . . . . . . . . . . . . . . . . . 9

closed head injury . . . . . . . . . . . . . . . . . . 16

colostomy . . . . . . . . . . . . . . . . . . . . . . . . . 5,7

concussion . . . . . . . . . . . . . . . . . . . . . . . . 14

death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

emotional distress . . . . . . . . . . . . . . . . .6,13

facial laceration . . . . . . . . . . . . . . . . . . . . 14

fracture, wrist . . . . . . . . . . . . . . . . . . . . . . 15

head. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

hematoma . . . . . . . . . . . . . . . . . . . . . . . . 14

incontinence . . . . . . . . . . . . . . . . . . . . . . . . 5

laceration . . . . . . . . . . . . . . . . . . . . . . . . . 10

loss of consortium . . . . . . . . . . . . . . . . .5,13

loss of society . . . . . . . . . . . . . . . . . . . . . . 13

memory, impairment . . . . . . . . . . . . . . . 16

penis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

peritonitis . . . . . . . . . . . . . . . . . . . . . . . . . . 7

rectum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

respiratory distress . . . . . . . . . . . . . . . . . 13

scar and/or disfigurement . . . . . . . . .10,14

shoulder . . . . . . . . . . . . . . . . . . . . . . . . . . 14

soft tissue . . . . . . . . . . . . . . . . . . . . . . . .9,14

sprain, cervical . . . . . . . . . . . . . . . . . . . . . . 9

strain, cervical . . . . . . . . . . . . . . . . . . . . . . 9

traumatic brain injury . . . . . . . . . . . . . . . 16

unconsciousness. . . . . . . . . . . . . . . . . . . . 16

whiplash . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Insurers

Cincinnati Insurance Co. . . . . . . . . . . . . . 16

Liberty Mutual Insurance Co. . . . . . . . . . . 9

Maryland Automobile Insurance Fund. . . .9

Medical Mutual Liability

Insurance Society of Maryland . . . . . 7

ProAssurance . . . . . . . . . . . . . . . . . . . . .5,13

USAA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Judges/Neutrals

Cooper, Christopher . . . . . . . . . . . . . . . . . . 6

Dawson, Herman C. . . . . . . . . . . . . . . . . . . 8

Holeman, Brian . . . . . . . . . . . . . . . . . . . . . 5

Jackson, Dwight David . . . . . . . . . . . . . . 10

Jones, James P. . . . . . . . . . . . . . . . . . . . . . 16

Moon, Norman K.. . . . . . . . . . . . . . . . . . . 15

Purpura, Nancy M. . . . . . . . . . . . . . . . . . . . 7

Salmon, James Patrick . . . . . . . . . . . . . . 12

Smith, Karla N. . . . . . . . . . . . . . . . . . . . . . . 8

Smith, Thomas P. . . . . . . . . . . . . . . . . . . . 13

Sugg, Bryant L.. . . . . . . . . . . . . . . . . . . . . 14

Wallace, Sean D.. . . . . . . . . . . . . . . . . . . . . 9

Topics

42 Usc 1983 . . . . . . . . . . . . . . . . . . . . . . . 15

Broadside . . . . . . . . . . . . . . . . . . . . . . . . . 16

Bus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Civil rights . . . . . . . . . . . . . . . . . . . . . . . . . 15

Compensation . . . . . . . . . . . . . . . . . . . . . . 8

Emergency room . . . . . . . . . . . . . . . . . . . 13

Employment . . . . . . . . . . . . . . . . . . . . . . . . 8

Employment . . . . . . . . . . . . . . . . . . . . . . . 6,8

Excessive force . . . . . . . . . . . . . . . . . . . . . 15

Failure to detect . . . . . . . . . . . . . . . . . . . . . 5

Fire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hostile work environment . . . . . . . . . . . . 6

Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 12

Intentional torts. . . . . . . . . . . . . . . . . . . . . 9

Intersection. . . . . . . . . . . . . . . . . . . . . . . . . 8

Medical malpractice . . . . . . . . . . . . . 5,7,13

Motorcycle . . . . . . . . . . . . . . . . . . . . . . . . 16

Motor vehicle . . . . . . . . . . . . . . . 8,10,14,16

Multiple vehicle . . . . . . . . . . . . . . . . . . .8,14

Negligent supervision . . . . . . . . . . . . . . 10

Negligent treatment . . . . . . . . . . . . . . . . . 7

Parking lot. . . . . . . . . . . . . . . . . . . . . . . . . 16

Police as defendant . . . . . . . . . . . . . . . . . 15

Post-operative care . . . . . . . . . . . . . . . . . . 7

Prescription and medication . . . . . . . . . 13

Rear-ender . . . . . . . . . . . . . . . . . . . . . . .8,14

Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . 6

Subrogation . . . . . . . . . . . . . . . . . . . . . . . 12

Surgical error . . . . . . . . . . . . . . . . . . . . . . . 5

Title vii. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Trusts and estates . . . . . . . . . . . . . . . . . . . 9

Undue influence. . . . . . . . . . . . . . . . . . . . . 9

Urological surgery . . . . . . . . . . . . . . . . . . . 5

Wages and hours . . . . . . . . . . . . . . . . . . . . 8

Worker/workplace negligence . . . . . . . . 10

Wrongful death . . . . . . . . . . . . . . . . . . . . 13



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SETTLEMENT $7,400,000

CASE Kenden A. Murray v. 502-12 86th Street LLC; The

TJX Companies Inc. d/b/a T.J. Maxx; Schimenti

Construction Co.; Schmenti Construction Co. Inc.;

& Pioneer General Construction Co. LLC, No.

13691/11

COURT Kings Supreme

DATE 3/13/2016

PLAINTIFF

ATTORNEY(S) Stephen J. Murphy, Block, O’Toole & Murphy,

LLP, New York, NY

David L. Scher, Block, O’Toole & Murphy, LLP,

New York, NY

DEFENSE

ATTORNEY(S) Mark J. Dolan, Napierski, VanDenburgh,

Napierski & O’Connor, L.L.P., Albany, NY

(502/12 86th Street LLC, TJX Cos.)

William C. Lamboley, Fabiani Cohen & Hall,

LLP, New York, NY (Schimenti Construction Co.

LLC)

Karen A. Ondrovic, Boeggeman, George & Corde,

P.C., White Plains, NY (Bonland Industries Inc.)

None reported (Pioneer General Construction Co.,

LLC)

FACTS & ALLEGATIONS On April 29, 2011, plaintiff Kenden

Murray, 38, a union-affiliated installer of sheet metal, worked

at a construction site that was located at 502 86th St., in the Bay

Ridge section of Brooklyn. Murray was modifying a commercial

air-conditioning unit that was located on a building’s roof. While

he was attempting to remove a panel that was affixed to the unit,

he fell off of a steel beam that was situated some three feet above

the roof’s surface. Murray landed on the roof, and he claimed that

he sustained injuries of his back, a knee, his neck and a shoulder.

Murray sued the premises’ owner, 502/12 86th Street LLC; the

premises’ tenant, TJX Cos. Inc.; the construction project’s general

contractor, Schimenti Construction Co. LLC; and another one of

the project’s contractors, Pioneer General Construction Co., LLC.

Murray alleged that the defendants violated the New York State

Labor Law.

Schimenti Construction and TJX impleaded Murray’s employer,

Bonland Industries Inc. Schimenti Construction and TJX alleged

that Bonland Industries controlled and directed Murray’s work

functions. They sought contractual indemnification.

Pioneer General Construction did not answer the summons, and

Murray’s counsel did not pursue the claim against it. The matter

proceeded against the remaining defendants.

Murray claimed that the air-conditioning unit’s panel could

not have been accessed without standing on the beam, which was

slightly less than 6 inches wide. Murray’s counsel contended that the

incident stemmed from an elevation-related hazard, as defined by

Labor Law § 240(1), and that Murray was not provided the proper,

safe equipment that is a requirement of the statute.

Murray’s counsel moved for summary judgment of liability. The

motion was unopposed and granted. The third-party claim was also

decided via summary judgment. Bonland Industries was obligated to

indemnify Schimenti Construction and TJX. The matter proceeded

to damages.

INJURIES/DAMAGES arthroscopy; decreased range of motion; disc

protrusion, cervical; epidural injections; fusion, lumbar; herniated

KINGS COUNT Y

CONSTRUCTIONLabor Law — Workplace — Workplace Safety — Slips, Trips & Falls

Worker claimed rooftop fall caused injuries of spine, knee

October 17, 2016

as published in

NEW YORK disc at L4-5; herniated disc at L5-S1; hypertrophy; knee surgery;

lateral meniscus, tear; leg; physical therapy; shoulder; tendinitis/

tendinosis Murray completed his workday without having sought medical

attention. After three days had passed, he presented to a doctor. He

claimed that his back, his left leg, his left shoulder and his neck were

painful. He was referred for further evaluation.

Murray ultimately claimed that he sustained a tear of his left knee’s

lateral meniscus, herniations of his L4-5 and L5-S1 intervertebral

discs, and trauma that produced a protrusion of his C5-6 disc. He

further claimed that his left shoulder sustained trauma that led

to hypertrophy of the shoulder’s acromioclavicular joint. He also

claimed that the shoulder developed tendinosis. He claimed that

he later developed pain that radiated to his left leg, from his back.

Murray’s treatment began with physical therapy. The treatment

was typically rendered three times a week. The treatment is ongoing,

though its frequency has decreased to weekly intervals.

On Oct. 6, 2011, Murray underwent arthroscopic surgery that

addressed his left shoulder. On March 8, 2012, he underwent

arthroscopic surgery that addressed his left knee. He subsequently

underwent administration of two epidural injections of steroid-

based painkillers. In September 2013, he underwent a pair

of surgeries that involved fusion of the anterior and posterior

regions of his spine’s L5-S1 level. On Feb. 16, 2016, he underwent

implantation of a device that provided pain-relieving stimulation of

his spine. Murray claimed that the device produced minimal relief.

Murray further claimed that he suffers residual pain, that he

suffers a residual diminution of his back’s range of motion, that

he suffers a residual diminution of his left knee’s range of motion,

that he suffers a residual diminution of his left shoulder’s range

of motion, and that he suffers a residual diminution of his neck’s

range of motion. He also claimed that his residual effects prevent

his resumption of work.

Murray sought recovery of past and future medical expenses, past

and future lost earnings, and damages for past and future pain and

suffering.

Defense counsel contended that Murray did not sustain a

significant injury, given that Murray worked during the aftermath

of the accident and that three days passed before Murray sought

medical attention. The defense’s expert orthopedist submitted a

report in which he opined that Murray exaggerated his symptoms.

The defense’s expert spinal surgeon submitted a report in which

he opined that Murray did not sustain a traumatic injury of the

cervical region, that Murray’s lumbar injuries were degenerative

conditions that predated the accident, and that Murray can resume

work. Defense counsel claimed that Murray underwent chiropractic

treatment after a 1993 motor-vehicle accident that was the subject

of a prior personal-injury lawsuit filed by Murray.

RESULT The parties negotiated a pretrial settlement. Bonland

Industries’ insurer agreed to pay $7.4 million.

INSURER(S) Selective Insurance Group Inc. for Bonland

Industries

PLAINTIFF

EXPERT(S) Kristin K. Kucsma, M.A., economics, Livingston,

NJ (did not testify)

Edwin F. Richter, M.D., physical medicine,

Stamford, CT (did not testify)

Douglas C. Schottenstein, M.D., neurology, New

York, NY (treating doctor; did not testify)

Rohit B. Verma, M.D., orthopedic surgery, Great

Neck, NY (treating doctor; did not testify)

DEFENSE

EXPERT(S) Peter D. Capotosto, M.S., C.R.C., vocational

rehabilitation, Rochester, NY (did not testify)

Richard Lechtenberg, M.D.,

neurology, Brooklyn, NY (did not

testify)

Jane D. Mattson, Ph.D., life-care planning,

Norwalk, CT (did not testify)

Jeffrey Passick, M.D., orthopedic surgery,

Brooklyn, NY (did not testify)

Sondra J. Pfeffer, M.D., radiology,

New York, NY (did not testify)

Jeffrey M. Spivak, M.D., spinal surgery, New

York, NY (did not testify)

EDITOR’S NOTE This report is based on information that was pro-

vided by plaintiff’s counsel. Pioneer General Construction’s counsel

was not asked to contribute, and the remaining defendants’ counsel

did not respond to the reporter’s phone calls.

–Jack Deming

October 17, 2016

W W W. V E R D I C T S E A R C H . C O M

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Decision $442,795

case Tucker Taylor v. Llewellyn Werner, No. SC121454

court Superior Court of Los Angeles County, Santa Monica

JuDge Nancy L. NewmanDate 10/27/2016

Plaintiffattorney(s) Dale E. Motley, Ogden & Motley,

Los Angeles, CA

Defenseattorney(s) Llewellyn Werner, pro se

facts & allegations In 2010, plaintiff Tucker Taylor began serving on the board of directors of a company with which Llewellyn Werner was involved.

Werner previously requested that Taylor serve on the board, and Taylor allegedly agreed under certain conditions. As a result, Taylor served on the board from 2010 to 2012.

In 2012, Taylor was sued based on his position as a member of the board. The suit was bought by a limited liability company that was owned by the former Chief Executive Officer of the company. The former CEO allegedly owned more than 10 percent interest in the company that involved both Taylor and Werner. When Tucker tendered the claim for defense, he learned that the company’s directors and officers liability insurance policy contained an exclusion for claims brought by 10-percent shareholders.

Although the insurer defended under a reservation of rights, Taylor was forced to defend himself and incur attorney fees. Although Taylor ultimately prevailed in the

litigation, the case went to the Court of Appeal before Taylor could stop paying attorney fees.

Taylor sued Werner, alleging breach of contract.Taylor claimed that he agreed to serve on the board of

directors on the condition that he would have no financial exposure and that the company would have adequate D&O liability insurance, which would indemnify him from losses or advancement of defense costs in the event of a legal action for alleged wrongful acts while he was acting in his capacity as a director and officer. Taylor further claimed that Werner agreed to those conditions, but failed to ensure the company had adequate insurance.

Plaintiff’s counsel argued that Werner breached an oral agreement, which provided that if Taylor served on the board, then Taylor would not have any financial exposure and that the company would have adequate D&O insurance.

Werner, who appeared pro se, denied ever making any such agreement with Taylor.

inJuries/Damages Taylor incurred attorney fees as a result of defending himself in the 2012 lawsuit against the company where he served on the board. Thus, he sought recovery of the attorney fees he incurred in defending himself.

result Judge Nancy Newman found that Werner breached the contract he had with Taylor. She also determined that Taylor’s damages totaled $442,794.70.

eDitor’s note This report is based on information that was provided by plaintiff’s counsel. Llewellyn Werner was not asked to contribute.

–Priya Idiculla

los angeles count y

corPorationsOfficers’ and Directors’ Liability — Insurance — Coverage — Contracts

Defendant broke promise to have adequate insurance: plaintiff

February 6, 2017

as published in

w w w. v e r D i c t s e a r c h . c o m

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