Verdicts and Settlements

This information should not create an unjustified expectation that similar results can be obtained for others without regard to specific factual and legal circumstances.


$1,125,000 recovery - plaintiff waitress told by defendant's manager that she and ex-boyfriend, who were having loud argument at end of plaintiff's shift to leave the premises - plaintiff shot in mouth arm and shoulder by ex-boyfriend outside the diner - bullet lodges near spine and cannot be removed - plaintiff also suffers extensive nerve damage in arm and clawing of hand - attack occurs several days before plaintiff scheduled to testify in criminal trial against ex-boyfriend on assault charges of which defendant diner's manager is aware - serious injury or death likely to occur and case not barred by compensation - $750,000 on this aspect plaintiff also files lad claim based on theory that plaintiff is being harassed by assailant and defendant failed to take reasonable steps to protect her - plaintiff obtains $200,000 based on lad claim - plaintiff also receives $175,000 from comp carrier on portion of policy providing for payment not otherwise covered by comp sustained by worker while at place of employment.

Monmouth County, New Jersey

This was an action involving a woman in her late 30s, who was working as a waitress at the defendant diner. The evidence disclosed that around the time the plaintiff's shift ended at 3:00 a.m on a Sat, the plaintiff's ex-boyfriend, against whom the plaintiff was scheduled to testify on Monday regarding criminal charges of assault, permitted access to the diner. The manager, who was in the back at the time was aware of the alleged prior incident and that the plaintiff was hospitalized, and that the plaintiff was due to testify at the upcoming criminal trial.The plaintiff contended that after a loud verbal argument erupted between the plaintiff and her ex-boyfriend, the manager directed them both to leave the premises. The plaintiff contended that while they were still on the diner property, the plaintiff was shot three times by her ex-boyfriend.

The plaintiff contended that the diner provided negligent security and that the manager clearly acted improperly in directing the plaintiff to leave when it was apparent that she was in danger. The plaintiff would have argued under a Laidlow type theory that the defendant should not have the benefit of the Workers' Compensation bar in this situation in which the allegedly negligent action was substantially certain to lead to serious injury or death.

The plaintiff also contended, under a LAD theory that the plaintiff was harassed by the assailant and that the employer had a duty under this theory to provide protection.

The manager denied that he directed the plaintiff to leave and contended that leaving with him was her choice.

The plaintiff would have argued that this testimony should clearly be rejected and that it was evident that the plaintiff would not leave voluntarily with the ex-boyfriend.

The defendant would have also contended that the plaintiff could well have called the police on her cell phone. The plaintiff would have countered that since the assailant was physically close to her at all times, she could not use her cell phone and could not call the police.

The evidence disclosed that shortly after the plaintiff and assailant left the premises, three shots rang out. The plaintiff was struck in the mouth, arm and shoulder. One of the bullets that struck her in the arm caused extensive nerve damage in the arm and hand. The plaintiff maintained that she will permanently suffer numbness and a clawing of the dominant hand. A bullet lodged in an area close to the spine and cannot be removed. The bullet wound to the mouth and arm caused moderate scarring.

The defendant diner had $5,000,000 in general liability insurance. The plaintiff obtained $750,000 from this carrier, $200,000 under the LAD claim and $175,000 from the compensation carrier under the section of the policy that provided coverage for injuries to workers occurring at the place of employment and not otherwise covered under the Worker's Compensation policy.

REFERENCE:

Plaintiff's domestic violence expert: Cynthia Lischik, PhD from Clarksburg, NJ. Plaintiff's functional capacity testing expert: Ellen Rader Smith from Towaco, NJ. Plaintiff's orthopedic surgeon expert: Cary Skolnick, MD from Manalapan, NJ. Plaintiff's security expert: Norman Bates from Boston, MA.

Culinari vs. Red Oak Diner, et al.. Docket no. Mon-L-477-13, 12-00-16.

Attorney for plaintiff : Frank S. Gaudio of Miller & Gaudio, PC in Red Bank, NJ.

COMMENTARY:

It is interesting that the plaintiff was able to resolve the case against the diner employer for a substantial sum despite the impediments, including the compensation bar, and the fact that the defendant was not the assailant. The plaintiff argued that the employer should be liable under a Laidlow type theory because it was substantially certain that death or serious injury would result from the failure of the diner to provide adequate security. The plaintiff was able to obtain an additional $200,000 because of the alleged LAD violations and $175,000 from the compensation insurance policy that provided coverage for injuries to workers occurring at the place of employment that was not otherwise covered under the policy. Finally, it should be noted that the settlement was achieved after four mediation sessions before ret. Judge Clyne


Sexual Abuse Of Minors

$3,500,000 JUDGMENT. Proof Hearing after default and Judgment entered on March 27, 2007.

Infant Sexual Abuse - Defendant father abuses his two children ages 10 and 11 at the time over a period of two years. Subsequently, he also abuses child of girlfriend on one occasion. Post-traumatic stress disorder diagnosed. All three infants received therapy. Reports issued by Toni Nokes, L.C.S.W.

Monmouth County, New Jersey

This was a civil action involving two infant plaintiffs age 10 and 11 at the time who contended that the defendant father at the time that he was separated from their mother and while visiting with the two infants sexually molested them. This occurred over a period of two years. In addition, defendant sexually molested the daughter of a girlfriend, also a minor on one occasion. Criminal charges were pursued and the defendant perpetrator was sentenced to 10 years in prison.

REFERENCE:

Plaintiff, Individually and on Behalf of J.T., a minor, and K.T., a minor, v. P.F.T., Docket Number MON-L-3984-05 and J.K. and S.L., Individually and on Behalf of S.E.K.L., a minor, v. P.F.T., Docket Number MON-L-4704-05. Attorney for Plaintiff, Frank S. Gaudio Esq., assisted by Sebastian Ferrantell Esq. of the firm of Miller & Gaudio PC in Red Bank, New Jersey.


Medical Malpractice

$3,000,000 RECOVERY - Medical Malpractice - Defendant nurse/midwife temporarily detaches fetal monitor despite signs of fetal distress - Precipitous drop of fetal heart beat when mother is placed on monitor again - Failure to follow hospital protocol requiring presence of attending physician once it is apparent that surgical delivery will be needed - Hypoxic ischemic encephalopathy spastic quadriplegia - Profound mental retardation.

Monmouth County, New Jersey

This was a medical malpractice action involving an infant plaintiff in which the plaintiff contended that the defendant nurse midwife, who was the primary care provider to the 16-year-old mother, a Medicaid patient, negligently permitted the mother to be detached from the fetal monitor for 10-15 minutes after approximately five or six hours of labor despite signs of fetal distress, such as variable deceleration. The plaintiff also contended that when the plaintiff was reattached to the monitor, the fetal heart beat precipitously dropped and that the defendant nurse midwife, negligently failed to realize that an attending ob/gyn was required immediately. The plaintiff contended that as a result, the delivery was delayed, resulting in perinatal asphyxia that caused hypoxic ischemic encephalopathy manifesting in profound mental retardation and spastic quadriplegia. The plaintiff also named a third-year resident whom, the plaintiff contended should have immediately summoned the attending ob/gyn when upon observing the fetal distress. The resident made three unsuccessful attempts at a vacuum extraction before calling for the attending ob/gyn, who completed the delivery in six minutes, which was 28 minutes after the fetal heart beat initially fell to 90.

The case settled prior to trial for $3,000,000.

REFERENCE:

Pltf: Shannon. Docket no. MON-L-1715-99; 9-04. Miller & Gaudio PC in Red Bank.


Fraud

$2,800,000 RECOVERY - Husband of defendant administratrix shoots and kills brother-in-law and his wife after losing NY Civil Action in business dispute - Killer then commits suicide - Misrepresentation to probate court that estate had assets of under $20,000.

Monmouth County

The underlying facts of this case involved the shooting murder of 41-year-old decedent and his 35-year-old wife when they pulled into their driveway as the murderer was lying in wait in the bushes. The murderer was the brother-in-law of the decedent. The murderer then committed suicide. The plaintiff contended that the defendant, the administratrix of the killer's estate, falsely advised the New Jersey Probate Court that the estate had less than $20,000 in assets, when in fact, the estate was worth in excess of $4 million. The plaintiff also maintained that the defendant administratrix personally converted assets such as rental income.

The case settled during the mediation for $2,800,000.

REFERENCE:

Case info omitted upon request. Attorney for Plaintiff, Frank S. Gaudio, Miller & Gaudio PC in Red Bank.


Medical Malpractice

$836,000 (LIMIT OF ERODING POLICY) RECOVERY - Failure to perform surgery between post-hysterectomy differential diagnosis of bowel obstruction and transfer to subsequent nonparty hospital 19 days later - Wrongful death.

Monmouth County

This was a medical malpractice case in which the plaintiff contended that the defendant general surgeon negligently failed to perform surgery between the time of a differential diagnosis of a bowel obstruction that was made upon the patient's readmission several days after a hysterectomy and 19 days later when the finding of sepsis and a significant amount of necrotic intestinal tissue prompted the transfer to the subsequent nonparty hospital. The plaintiff maintained that by this time, it was too late to save the 50-year-old decedent, who died approximately two months after she was transferred to the subsequent hospital.

The case settled prior to trial for the $836,000 that remained on the $1,000,000 eroding policy.

REFERENCE:

Case info omitted upon request. Attorney for Plaintiff, Frank S. Gaudio, Miller & Gaudio PC in Red Bank.


Medical Malpractice

$650,000 RECOVERY - Medical Malpractice - Failure of graduate nurse anesthetist to properly apply pressure to cricoid cartilage of trachea after esophageal intubation - aspiration of particulate matter - ARDS - Death of 45-year-old widow - Informed consent issue relating to initial attempt at intubation by nurse anesthetist.

Monmouth County

This medical malpractice death action involved a 45-year-old decedent who died 18 days after complications arose involving an esophageal intubation. The plaintiff alleged negligent failure of the defendant graduate nurse anesthetist to properly apply pressure on the cricoid cartilage of the trachea to minimize aspiration in the event of a mistaken esophageal intubation as the defendant anesthesiologist completed the intubation into the trachea. The plaintiff contended that the use of cricoid pressure in this situation involving a rapid sequence intubation was especially necessary because the patient would quickly loose the gag reflex and would be particularly vulnerable to aspiration in the event of such a complication. The plaintiff contended that an extensive amount of material including particulate matter was aspirated, causing Adult Respiratory Distress Syndrome (ARDS). The plaintiff also contended that initially, the graduate nurse anesthetist, who had yet to take his licensing exam, had attempted the intubation as the anesthesiologist was applying cricoid pressure. The anesthesiologist switched places with the nurse anesthetist when it became apparent that an esophageal intubation occurred and the nurse anesthetist's application of cricoid pressure began simultaneously with the release of such pressure by the anesthesiologist. The plaintiff contended that although an esophageal intubation, which is immediately recognized is not a deviation, the facts reflected that the graduate nurse anesthetist had performed the intubation without the informed consent of the patient, which was a deviation. The decedent's husband had predeceased her, and she left behind an adult son who was not receiving financial contributions from her, therefore, the plaintiff's primary claim was for the decedent's alleged pain and suffering during the 18-day period between the intubation and the death.

The evidence disclosed that the decedent was admitted with a several week history in which the abdomen was becoming progressively distended. Testing disclosed the presence of a partially obstructing tumor that was found to be cancerous and a decision to surgically remove the tumor was made. The patient was placed on a gentle bowel prep program for four days before the surgery was performed in order to help to relieve the distention. She was able to pass some stool and fluids. An attempt to use an NG tube was made, but the patient could not tolerate the tube and it was used for a brief period only. The anesthesiologist made the judgment after four days that the distension had improved sufficiently to perform the surgery.

The evidence revealed that the anesthesiologist permitted the graduate nurse anesthetist to attempt the intubation. As the nurse anesthetist was doing so, the anesthesiologist applied pressure on the cricoid cartilage in the trachea to minimize the risk of regurgitation and aspiration in the event of a mistaken esophageal intubation. When the anesthesiologist observed signs that an esophageal intubation had occurred, he ordered the nurse anesthetist to begin applying cricoid pressure while he reintubated into the trachea. The anesthesiologist maintained that as he was beginning the intubation process, he observed a rush of emesis. The anesthesiologist was ultimately able to intubate the patient and a determination was made that because of the additional risk of a prolonged surgery, a diverting colostomy would be created, rather than the tumor being removed during this surgery and that the tumor would be excised after the patient stabilized. The plaintiff contended that the decedent did not stabilize and was intermittently conscious and in significant distress over the ensuing 18-day period until she succumbed.

The plaintiff's expert anesthesiologist would have contended that since an esophageal intubation is a recognized complication, it is essential to administer cricoid pressure in a proper manner to minimize the risk of aspiration. The expert would have maintained that particulate matter was discovered in the lungs on autopsy and would have opined that such a finding definitively established that more than a small amount of material that could enter the lungs upon the proper use of such pressure had, in fact, aspirated. The expert would have contended that such extensive aspiration led to ARDS, which ultimately took the patient's life.

The plaintiff further contended that the patient was not advised that an individual other than an anesthesiologist would be intubating the patient. The plaintiff contended that although an initial esophageal intubation can occur in the absence of negligence and although the complication was immediately recognized as required by the standard of care, the absence of informed consent was an additional basis to establish liability. The plaintiff contended that although the administrative code would permit the nurse anesthetist to perform the hospital's own protocol reflected that a nurse anesthetist must be certified to do so and that the hospital violated its own protocol.

The evidence disclosed that the patient developed ARDS shortly after the intubation and died 18 days later. The plaintiff would have contended through various family members who visited her that the decedent was conscious through a significant portion of this period. The witnesses would have related that although the patient who was on a ventilator and could not speak, she was conscious and able to communicate to some degree by squeezing her visitor's hand. The family members indicated that the decedent appeared very anxious. The defendant denied that the patient had the level of consciousness claimed, but conceded, as per the records, that there was some level of consciousness for the first five to six days. The decedent's husband had predeceased her and the decedent left an adult son who was not financially dependent upon her.

The case settled shortly before trial for $650,000. It should be noted that the defendant anesthesiologist did not contribute to the settlement.

REFERENCE:

Plaintiff's anesthesiologist: Sheldon Deluty from Manhattan.
Plt: Stafford Docket no. MON-L-2397-97; 4-02.
Miller & Gaudio PC in Red Bank.

COMMENTARY:

The plaintiff could present very little proof of pecuniary loss in this case in which the decedent was widowed, her adult son did not receive contributions from her or depend upon her for unusually extensive guidance and advice. Thus, the predominant portion of the plaintiff's claim was for the conscious pain and suffering experienced by the decedent over the 18-day period between the time of the intubation and her death. It is felt that the plaintiff was able to obtain a substantial recovery in view of the fact that the primary evidence relating to such conscious pain and suffering stemmed from observations made by family members who indicated that they communicated with the decedent, who was on a ventilator, by having her squeeze their hands and who also described great anxiety on her face. Additionally, the hospital records reflected a significant level of consciousness for five to six days only.

It is felt that the nature of this case in which the plaintiff would have had dual theories, including an argument that a significant amount of particulate matter had aspirated, reflecting a failure on the part of the graduate nurse anesthetist to adequately apply cricoid pressure to prevent such material from entering the trachea, and an informed consent aspect in which the plaintiff contended that the patient was not advised that an individual other than an anesthesiologist would attempt the intubation, could well have created a strong jury response and that this factor provided significant leverage to the plaintiff during negotiations. Finally, the decedent was suffering from colon cancer and the plaintiff would have argued that signs, including negative pelvic washings, tended to provide an optimistic prognosis. Furthermore, the plaintiff would have also argued that the defendant had not presented any evidence to support a claim for a Scafidi reduction and was planning to move in limine on this issue as of the time of settlement.


Premises Liability

$600,000 RECOVERY - Plaintiff overnight guest falls down approximately 14 steps because of allegedly dangerous stairway leading to basement - Skull fracture and severe cognitive deficits - Premises rented by defendant from co-defendant homeowners association - Failure to warn - Inward opening of basement door forces plaintiff to turn around to begin descending basement stairs - Premises "Grandfathered" from current code prohibiting such design - Defendant would have pointed to extensive alcohol consumption by plaintiff earlier in evening.

Monmouth County

The plaintiff in her mid-20s, who was planning to stay overnight in the defendant renter's basement, contended that the premises was highly dangerous and that no warnings were provided about the basement stairs. The plaintiff maintained that since the door leading to the stairway opened inward, the plaintiff was required to turn around before beginning to descend, that the risk of losing her balance was heightened by the reduction in tread width caused by such a need, and that she fell approximately 14 steps. The plaintiff's engineer concluded that the stairway was dangerous and would have been in violation of the code if presently built. The older building was "grandfathered" from such code provisions. The defendants contended that the cause of the incident was the extensive alcohol consumption of the plaintiff earlier in the evening. The defendants would have pointed out that the plaintiff drank at a concert and a tavern before having a final glass of wine at the defendant's home and that the incident occurred a short time later. The plaintiff would have maintained that blood testing at the hospital correlated to a BAC of .24. The plaintiff had moved to exclude such results, pointing to the lab tech's deposition in which he indicated that because of chain of custody issues, he could not state with 100 percent confidence that it was the plaintiff's blood that was tested. The defendants countered that the records were more than sufficient in this civil case to justify admissibility of this evidence. The plaintiff suffered a skull fracture and required surgical intervention to relive the pressure on the brain. The plaintiff maintained that she will nonetheless suffer severe cognitive deficits largely involving concentration and short-term memory.

The defendants had $1,000,000 in primary coverage. The case settled for $600,000 after mediation before Judge Uhrmacher and before any ruling on the motion to exclude the BAC results.

REFERENCE:

Pltf: Goodman. Docket no.: _______________; 06-13. Attorney for Plaintiff, Franks S. Gaudio, Miller & Gaudio PC in Red Bank.


Internal Medicine

$400,000 RECOVERY - Medical Malpractice - Failure to properly manage anticoagulation therapy when patient with history of valve replacement requires surgery to remove mole - Stroke.

Union County

The female plaintiff in this medical malpractice action was in her late 70s and had undergone valve replacement surgery some 10 years earlier. The plaintiff, who had been taking Coumadin, contended that when she was referred for surgery to remove two moles, the defendant internist negligently advised her to stop taking the Coumadin three days before the surgery and to resume it four days later. The plaintiff maintained that she was left without the anticoagulation therapy that was needed and that three days after the dermatological surgery, she suffered an embolic stroke.

The plaintiff's expert internist contended that the defendant should have either withdrawn the Coumadin for only 24 hours before and after the surgery, or alternatively, should have used he much faster-acting anticoagulant heparin, allowing the cessation of the medication to be for a much shorter period. The defendant's records reflected that he had advised the plaintiff to cease the medication two days before and resume one to two days after the surgery if the patient did not encounter bleeding.

The plaintiff's expert maintained that even if accurate, the notes reflect advisements that were negligent in nature. The plaintiff patient had kept a diary regarding her medication, which was consistent with the plaintiff's contentions. The plaintiff, who maintained that she was very methodical in this regard, argued that such evidence should be introduced as a present recollection recorded exception to the hearsay rule. The plaintiff's husband would have also testified that three days after the surgery, he was in the room with his wife as she was speaking on the phone with the defendant. The husband, who heard only his wife's side of the conversation, would have related that she expressed concern about the blood thinning medication, and that after hearing the defendant's response, indicated that she would not resume the medication early. The plaintiff suffered a very significant stroke, has difficulties with memory, speech and with swallowing, and is confined to a wheelchair. The case settled prior to trial for $400,000.

REFERENCE:

Docket info withheld upon request.

Miller & Gaudio PC in Red Bank.


Rear-End Collision

$325,000 RECOVERY - Rear-end collision - Closed head injury - Mild traumatic brain injury with cognitive deficits - Cervical nerve root irritation - Inability to continue career as operating room technician.

Monmouth County

The plaintiff driver in this case was a female in her mid-50s. She contended that the defendant driver struck her vehicle in the rear while she was stopped, waiting to turn left into a railroad station parking lot.

The plaintiff maintained that she suffered a closed head injury that caused mild traumatic brain injuries and that a battery of neuropsychological tests reflected cognitive deficits that supported her claims of continuing memory and concentration difficulties. The plaintiff also contended that although the MRI showed no herniation, a cervical EMG was positive and reflected nerve root irritation that was causing radiating pain. The plaintiff claimed that the injuries are permanent in nature, also contending that she will paramountly be unable to return to her job as an operating room technician and will suffer significant economic losses.

The defendant disputed the plaintiff's claims of a cognitive deficit or that there was sufficient proof that the alleged radiculopathy is permanent.

The case settled the week before the scheduled trial date for $325,000.

REFERENCE:

Plaintiff's neurosurgeon: Bruce Rosenblum from Shrewsbury.
Plaintiff's psychiatrists: Declan O'Scanlon from Red Bank and Alexander Ivanoff from Woodbridge.
Plaintiff's pain management physician: Sri Kantha from Rutherford.

Lopez vs. Lightbourne. Docket no. L-1368-99; 2-02.

Miller & Gaudio PC in Red Bank.


Premises Liability

$300,000 RECOVERY - Fall Down - Failure to provide adequate maintenance to area of condo parking lot in which drainage was slow, causing ponding of water - Plaintiff slips on ice - Comminuted shoulder fractures.

Monmouth County

The 62-year-old plaintiff contended that her assigned parking spot was in an area of the lot where drainage was slow, causing water to pond in this location. The plaintiff contended that the defendant condominium association should have removed snow and ice from this area of the parking lot with particularly great care. The plaintiff also contended that as a result of the defendant's failure to do so, she slipped and fell on ice while she was attempting to walk to her car. The plaintiff contended that she slipped and fell on ice that was situated under the freshly fallen snow.

The plaintiff suffered a three-part comminuted fracture of the right proximal humerus that was treated by way of open reduction and fixation with sutures. The plaintiff also suffered a malunion with some joint contracture and impingement syndrome, contending that she will permanently suffer significant pain and restriction.

The defendant contended that snow had begun falling the previous night and the plaintiff fell on snow that was continuing to fall.

The plaintiff, who was a hairdresser earning $15,000 a year, was unable to return to her previous line of work. She contended that she would otherwise have worked for one more year. The case settled prior to trial for $300,000.

REFERENCE:

Geraud vs. Worthmore Construction, et al. Docket No. L-4806-01;
2-04.

Miller & Gaudio PC in Red Bank.


School Liability

$300,000 RECOVERY - Failure to adequately supervise - Failure to adequately train - Sexual abuse by Jr. High School teacher - PTSD.

Monmouth County

This case involved an infant plaintiff who contended that during eighth grade, the defendant Jr. High School teacher began showing unusual attention toward her. No sexual contact occurred during her eighth grade year. The plaintiff maintained that in the summer, she was at the school and the teacher brought her into the band room where sexual contact occurred. The plaintiff contended that these incidents continued when she commenced high school, and the teacher would periodically pick her up from school and bring her back to the middle school where such sexual contact continued. The evidence disclosed that on one occasion, two other students saw the teacher pick the infant plaintiff up at high school, observed them kissing, and advised the high school principal. The teacher was convicted of crimes relating to the incidents and is currently serving time in prison.

The plaintiff contended that the defendant Board of Education failed to adequately supervise the teacher, enabling the abuse to continue during the infant plaintiff's ninth grade year. The defendant Board of Education maintained that, it provided adequate supervision, had a policy of having a teacher patrol the halls and that a student could not be alone with a teacher unless the door to the room was open.

The defendant Board of Education would have also pointed out that the incidents occurred after school hours. The plaintiff would have countered that the defendant retained control over the building and that its duty extended to this time. The plaintiff would have also stressed that the defendant Board of Education had a duty of in loco parentis and that had it exercised this responsibility properly, the incidents would not have continued.

The plaintiff would have presented several students who would have testified that rumors about the relationship had been spoken about for some time. The defendant Board of Education would have countered through the presentation of several teachers who would have denied that such rumors existed.

The case against the Board of Education settled prior to trials for $300,000. The plaintiff also named the teacher, who apparently has assets, as a defendant and the plaintiff contended that the Board of Education's liability rest in its own failure to provide adequate supervision and training, and is not based on vicarious liability for the teacher's actions.

REFERENCE:

Plaintiff student vs. Defendant Board of Education. Docket no.: MON-L-489-06, 9-29-10. Attorney for Plaintiff, Frank S. Gaudio, Miller & Gaudio PC in Red Bank.


Sexual Harassment

$300,000 RECOVERY

In this case, a one-time township employee claimed she was sexually harassed by the former township building inspector for six years. The alleged abuse started in March 2005 when she worked as a housing inspector for the township building department. Plaintiff protested the defendant's actions, but continued to be harassed up to the point where she filed the complaint in 2011.

The $300,000 settlement was approved at a council meeting. Since the township's insurance carrier defended the township in the case, the insurance carrier will pay for most of the settlement while the town will be responsible for $65,000, which included $5,000 in lost wages.

REFERENCE:

Pltf: Borbotko v. Powell. Docket No.: OCN-L-1309-12. 01-14. Attorney for Plaintiff, Frank S. Gaudio, Miller & Gaudio PC in Red Bank.


Psychological Malpractice

$300,000 RECOVERY - Psychological malpractice - Boundary violation - Sexual contact - Fear of therapy suffered by patient with multiple personality disorder.

Monmouth County

The female plaintiff in her 30s, who suffered from a multiple personality disorder and who was treated from 1983 to 1990 by the defendant psychologist, contended that the defendant engaged in several incidents in which he touched her private parts and the plaintiff's expert contended that such a "boundary violation" constituted a deviation. The plaintiff, who indicated that she had blocked out the incidents for some time, contended that a few years later, in 1987, she had a flashback, recalled the incidents and confronted the defendant. The plaintiff maintained that she was induced to continuing therapy by the defendant's promises that he would cease such behavior and himself seek therapy. The plaintiff also contended that she had become dependent upon the defendant and that he exploited this dependency. The plaintiff contended that several similar incidents occurred over the next few years. The plaintiff maintained that she has lost her trust in therapists and that although she has resumed therapy with a psychiatrist, she has suffered setbacks because of the continuing inability to trust.

The defendant argued on a pretrial motion that since the plaintiff became aware of the incidents almost five years before the filing of suit, the action was barred by the Statute of Limitations, notwithstanding that it was filed within two years of the cessation of treatment. The plaintiff maintained that the defendant's inducement to continue therapy together with the false promise that the behavior would cease tolled the statute. The plaintiff also argued that her psychological dependency upon the defendant deprived her of the ability to cease the therapy and that such a factor should also toll the statute. The case settled for $300,000 before the court ruled on the defendant's motion. The defendant's insurance policy did not contain a clause limiting damages in sexual contact cases to an amount less than the policy limits. The insurance company was, however, defending the case with a reservation. It should be noted that the defendant had filed bankruptcy and that all claims for intentional tort had been voluntarily dismissed.

REFERENCE:

Plaintiff's expert psychiatrists: Joan A. Turkus, M.D., from Va. and Pamela F. Moss, M.D. from Skillman NJ (subsequent treating and expert on damages). Plaintiff's expert social worker: Mary Jo Albertis, MSW, from Shrewsbury, N.J.

Docket no. L-2986-92; Judge Louis Locasio, 9-96.

Frank S. Gaudio of Miller & Gaudio PC in Red Bank.


Premises Liability

$280,000 PRESENT VALUE RECOVERY PLUS WAIVER OF COMPENSATION LIEN

Defendant homeowner's dog nips at plaintiff as he is delivering shelving at request of pharmacy employer who is defendant's son - Plaintiff jumps five to eight feet from deck to escape dog - Fracture dislocation to right ankle - Post-traumatic stress disorder.

Monmouth County

The 23-year-old plaintiff delivery person for a pharmacy contended that when his employer directed him to go to the home of the defendant (the employer's father) to deliver shelving, he was advised to bring the shelves to the back deck. The plaintiff maintained that the defendant's mixed breed dog suddenly ran at him, began nipping at his feet and that he jumped five to eight feet off the deck to escape the dog. The plaintiff contended that he suffered a fracture/dislocation to the ankle and that the dog continued nipping at him, prompting him to crawl away. The dog ceased when the plaintiff reached the property line. The plaintiff contended that the defendant should be strictly liable under the dog bite statute and that the injury occurring when he was jumping to escape the dog was directly caused by the dog's conduct.

The defendant denied that the strict liability statute should be applied because of the absence of any breaking of the skin. The plaintiff, who contended that the statute should nonetheless apply, also argued that irrespective of the issue of the strict liability statute, the dog had previously bitten an individual, resulting in litigation, and the defendant was aware of the dog's viscous propensities and should have better restrained the animal. The plaintiff contended that he required an open reduction of the talus and the use of an external fixation device. The plaintiff maintained that he will permanently suffer significant pain and restriction. The plaintiff also maintained that he had no prior psychiatric history, and that the incident caused a severe posttraumatic stress disorder and major depression. The plaintiff's psychiatrist offered a guarded prognosis.

The case settled prior to trial for a structure with a present value of $280,000. The plaintiff will receive $1,000 a month for life, guaranteed for 53 years, including $100,000 up front, yielding an ultimate recovery of $636,000. The compensation lien was waived.

REFERENCE:

Eschenbrenner vs. Professional Pharmacy. Docket no. n/a; 3-01.

Frank Gaudio of Miller & Gaudio in Red Bank.


Assault

$250,000 RECOVERY PLUS WITHDRAWAL OF ALLEGEDLY RETALIATORY DISCIPLINARY CHARGES BROUGHT AGAINST PLAINTIFF, ENABLING HER TO PURSUE DISABILITY APPLICATION LAD Case - Assault - Hostile work environment - Emotional distress suffered by female corrections officer.

Camden County

In this action, the female plaintiff former corrections officer maintained that she was subjected to ongoing harassment by other corrections officers in the form of lewd comments, threats of a sexual nature, and an actual physical assault in which a fellow corrections officer touched her private parts. The plaintiff further maintained that as a result of her complaints, the defendant sought to retaliate against her by bringing disciplinary charges in which the plaintiff was wrongfully accused of falsifying a request for a day off for a repair to be done to her home.

The plaintiff testified that when documentation was requested for the day off, an incorrect date was mistakenly listed in the invoice she submitted, prompting the disciplinary charges. The plaintiff maintained that the alleged harassment caused a psychiatric overlay which resulted in her inability to continue as a corrections officer. The plaintiff did not make a claim in this action for reinstatement, but claimed approximately 50,000 in past lost wages. The plaintiff also contended that she suffered a post-traumatic stress disorder that is permanent in nature.

The case settled prior to trial for $250,000. In conjunction with the settlement, the disciplinary charges against the plaintiff were dropped and it should be noted that the plaintiff has been awarded two-thirds of her net pay and medical coverage for life in an administrative disability hearing.

REFERENCE:

Sexual Jervis vs. N.J. Dept. of Corrections. Docket no. CAM-L6990-99; Judge John A. Fratto, 5-03.

Attorney for plaintiff: Frank S. Gaudio of Miller & Gaudio PC in Red Bank.


Premises Liability

$215,000 RECOVERY PLUS COMPROMISE OF COMP LIEN FROM $165,000 TO $80,000

Dangerous exterior stairway at building owned by plaintiff's employer's landlord - Absence of adequate lighting - Fall as plaintiff leaving work - Cervical herniation necessitating discectomy and fusion.

Union County

The plaintiff, in her early 60s, who worked as a mortgage processor in the building owned by the defendant, contended that the exterior steps were dangerous and violated the applicable code because of the absence of a handrail and because on some treads, the outer portion was wider than the inner portion. The plaintiff also claimed that there was inadequate lighting since the overhead light was burnt out. The plaintiff contended that as a result, she lost her footing and fell forward about five feet as she was leaving work. The plaintiff further contended that as a result, she suffered a herniation at C-5,6 that required a decompression and anterior fusion. The plaintiff maintained that despite the surgery, she will permanently suffer some pain and significant restriction.

The defendant denied any notice that the light was not functioning. The defendant also maintained that the steps were reasonably safe and contended that the plaintiff was carrying various office items in each hand. The defendant further maintained that the plaintiff caused the fall. The plaintiff countered that the even if carrying items in both hands, she could have used the rail as support by leaning her side against it as she was walking down the stairs.

The plaintiff made no income claims. The case settled prior to trial for $215,000, plus a compromise of the compensation lien.

REFERENCE:

Allyn vs. Brass. Docket no. L-507201,3-04.

Attorney for plaintiff: Frank Gaudio of Miller & Gaudio in Red Bank.


Criminal Negligence

$187,500 PRESENT VALUE RECOVERY - Negligent failure of police officers to provide supervision in cell following arrest for stabbing ex-wife - Decedent commits suicide by hanging himself.

Hudson County

The evidence disclosed that after the ex-wife visited the decedent regarding some paperwork at the completion of the divorce, the decedent stabbed her in the chest. The plaintiff contended that the ex-wife, who was conscious, warned the officers that the husband was extremely despondent about the divorce and might attempt to hurt himself. The plaintiff contended that the warning was reiterated when one of the three emancipated children visited the police station to bring his father's blood pressure medication. The plaintiff contended that despite these warnings and the use of a closed circuit television system, the officers failed to observe the decedent hang himself with his shirt. The defendant maintained that the officers were coordinating the response to a five alarm fire, which had come in and maintained that in view of this factor, the failure to observe the television monitor was understandable. The plaintiff countered that in view of the fact that the monitor was in full view, such observations should clearly have nonetheless been made. The case was brought on behalf of the three emancipated children, ages 18, 19 and 21. The plaintiffs contended that they were very close to their father and that the loss of guidance and advice was extensive. The plaintiff made no income claims. The plaintiff's forensic pathologist contended that the death would take three to five minutes and the plaintiff contended that if observations of the monitor had been made, the suicide could have been prevented. The plaintiff would have argued that the pain and suffering was severe and it would be likely that during the ordeal, the decedent would have struggled to survive, realizing the mistake he had made and that he, in fact, was suffering. The plaintiff had moved for an order compelling the defendant to turn over the results of its internal investigation during discovery. The defendant had argued that the disclosure of this self-critical analysis would have a chilling effect on self-investigations and that it was entitled to withhold this information under applicable case law. The court granted the plaintiff's motion. The defendant appealed and the Appellate Division remanded for more specificity for the basis of the trial court's ruling. The case then settled for $187,500. A portion was placed in a structure with an ultimate payout of $450,000.

REFERENCE:

Plaintiff's correctional procedures expert: Thomas Rosazza of Rosazza Assoc., Inc., in Colorado Springs, Co. Plaintiff's forensic pathologist: Mark L. Taff from West Hempstead, N.Y.

Plt: Hernandez. Docket no. L-7558-94; Judge George P. Moser, 12-97.

Attorney for plaintiff: Frank S. Gaudio.


Auto Accident

$173,000 RECOVERY - Failure to stop at stop sign - Severe nasal fracture and deviated septum - Partial tear of anterior cruciate ligament.

Monmouth County

The male plaintiff driver, age 23 at the time, contended that the defendant driver failed to stop at a stop sign. The defendant in this case maintained that the plaintiff was speeding and failed to make adequate observations.

The plaintiff contended that he suffered a severe nasal fracture and deviated septum and will permanently suffer "crusting" in the nostrils. The plaintiff also contended that he suffered bilateral trauma to the knees and a partial tear of the anterior cruciate ligament in one knee, which will cause permanent pain and restriction despite arthroscopic intervention. The plaintiff also suffered a laceration to the upper gum which resolved. The defendant denied that the knee injury was related to the subject collision, pointing to the absence of any documented knee complaints for three months. The plaintiff countered that he was more concerned with the facial injuries, that he believed the knee pain would resolve, and that when it continued for a few months, he sought treatment. The defendant had a $100,000 policy and the plaintiff had $300,000 in underinsurance coverage. The case settled prior to trial for $98,000 from the defendant driver and $75,000 from the UIM carrier, yielding a total recovery of $173,000.

REFERENCE:

Michel vs. Jones. Docket no. L-1577- 97; 2-01.

Attorney for plaintiff: Frank Gaudio of Miller & Gaudio in Red Bank.


Negligent Maintenance

$170,000 RECOVERY - Premises Liability - Negligent Maintenance - Negligent repair following removal of sign from parking lot - Surrounding surface deteriorates and stump is exposed - Plaintiff customer falls - Tear of dominant rotator cuff - Arthroscopic surgery - Nerve damage causes slight tremor - Limitation on part-time work.

Monmouth County

The plaintiff, in his late 60s, contented that the defendant landlord of the strip mall containing a deli in which he was eating negligently failed to properly repair the parking lot after having a sign removed prior to the winter. The plaintiff contended that as a result, the surrounding surface deteriorated, resulting in his tripping and falling the following spring. The defendant would have maintained that the plaintiff failed to make appropriate observations at the time of the daylight accident and was comparatively negligent. The plaintiff would have introduced photographs taken during the repair process and the plaintiff would have further pointed to testimony of the defendant's custodian of property that the condition existed after the sign was removed and was not subsequently repaired. The plaintiff would have also introduced photographs of the deteriorated surface. The plaintiff contended that he suffered a tear of the dominant rotator cuff that necessitated arthroscopic surgery. The plaintiff maintained that he will suffer permanent pain and limitations because of this injury. The plaintiff's neurologist also maintained that the injury resulted in nerve damage and a slight tremor that was not present prior to the incident. The neurologist maintained that the plaintiff will suffer the residuals permanently. The plaintiff was a semi-retired dentist and prior the incident, he had sold his practice. The plaintiff related that prior to the fall; he continued to work part-time for the individual who bought his practice. The plaintiff maintained that because of the pain, weakness and tremors, he is more restricted and works for a different dentist fewer hours per week than he had before the incident. The defendant did not have the plaintiff examined by physicians.

The case settled prior to trial for $170,000.

REFERENCE:

Pltf: Williams. Docket no. MON-L-4982-11, 07-13. Attorney for Plaintiff, Frank S. Gaudio, Miller & Gaudio PC in Red Bank.


Sexual Harassment

$120,000 RECOVERY- Sexual harassment - Allegations of hostile work environment and quid pro quo harassment from direct supervisor - Emotional distress.

Monmouth County

The plaintiff, who had previously worked in claims for the defendant for an approximate six-year period, related that shortly after she returned from maternity leave, she was placed in a new department working in the field of Information Technology. The plaintiff contended that she was one of the few female employees in the department and that she would frequently hear sexually provocative comments about women in general and at times, about her in particular.

The plaintiff also contended that her direct supervisor indicated to her on several occasions that he would be easier to work with if a relationship ensued and that he had suggested a location on the premises in which they could find privacy. The plaintiff maintained that she made several complaints, including one to the Human Resources Department and that it was suggested to her that it would be easier for her to deal with the situation if she did not pursue the matter.

The defendant denied that such advisements were given or that Human Resources had knowledge of the alleged situation. The defendant further contended that any comments alleged in the hostile work environment aspect were jocular in nature and that a reasonable woman would not find them offensive. The defendant also maintained that only playful bantering had occurred between the plaintiff and the supervisor and denied that she was subjected to quid pro quo harassment.

The plaintiff contended that after the conduct continued, she resigned and maintained that a constructive termination had occurred. The plaintiff contended that she sustained severe emotional distress, required therapy and the plaintiff's therapist would have indicated that the distress essentially resolved. The plaintiff did not pursue any income claims.

The case settled prior to the institution of suit for $120,000.

REFERENCE:

Plt: Baldwin. 11-01.

Miller & Gaudio PC in Red Bank.


Rear-End Collision

$100,000 Policy Limits Recovery Following Denial of Defendant's Motion For Summary Judgment on Verbal Threshold

Rear-end collision - Plaintiff concedes that he was struck when defendant was traveling at less than 10 mph - Cervical herniation suffered by plaintiff previously undergoing cervical fusions at levels above and below area herniated in subject accident - Lumbar herniation allegedly caused by accident.

Somerset County

The plaintiff driver, in his early 30s, contended that his vehicle was struck in the rear by the defendant while stopped. The plaintiff conceded that the defendant was traveling less than 10 mph on impact. The evidence disclosed that approximately one and a half years earlier, the plaintiff underwent fusion surgeries at the C4,5 and C6,7 levels. The plaintiff's orthopedist maintained that the prior surgery rendered the plaintiff particularly vulnerable to injury at the C5,6 level and that the accident caused a herniation at this level, necessitating a fusion at this level as well. The plaintiff, who works as a computer operator, was able to continue working but related that he must depend upon the assistance of co-workers when a monitor or other equipment has to be moved or replaced. The plaintiff also maintained that the subject accident caused a new herniation at L5-S1, which required a discectomy and will cause permanent symptoms as well.

The defendant denied that the plaintiff satisfied the verbal threshold and moved for Summary Judgment, arguing that the plaintiff could not establish that the accident had a significant impact on his life or that he suffered a significant permanent injury. The court denied the defense motion and the case then settled for the defendant's $100,000 policy limits.

REFERENCE:

Kopas vs. Rush. Docket no. Som L-133-03; 2-05. Attorney for plaintiff: Frank Gaudio of Miller & Gaudio PC in Red Bank.


Premises Liability

$90,000 RECOVERY - Hazardous Premises - Failure to stop at stop sign - Aggravation of previously asymptomatic degenerative disc disease in lumbar and cervical areas - Extensive restrictions to L.P.N.

Ocean County

The plaintiff driver, 58 at the time, contended that the defendant driver negligently failed to stop at a stop sign, striking her car in the side. The defendant, who pled guilty to careless driving, had maintained in discovery that his view was obscured by the sun. The plaintiff pointed out that the defendant was traveling in an easterly direction at 4 p.m. The plaintiff's motion for summary judgment on liability was granted. The plaintiff, who was not wearing her seat belt at the time of the accident, contended that she developed extensive lumbar and cervical pain after the accident. There was no evidence of a frank herniation, and the plaintiff contended that the trauma precipitated the activation of previously quiescent degenerative disc disease in both the lumbar and cervical areas. The plaintiff, who is an L.P.N., maintained that she had previously worked two jobs at nursing homes. The plaintiff contended that she has not been able to continue and has obtained alternative work as an L.P.N. working the overnight shift in a nursing home and is not generally required to lift. The new job is more lucrative than either of the prior jobs and the plaintiff is able to thereby approach her prior earnings.

The defendant contended that any injuries the plaintiff sustained would have been minimized by the use of the seat belt. However, the plaintiff's specialist in physical rehabilitative medicine contended that the mechanism of the plaintiff's side impact, torsion/rotation injury would not have been prevented by the seat belt.

The case settled prior to trial for $90,000

REFERENCE:

Plaintiff's specialist in physical rehabilitative medicine: Paul DiLorenzo from Eatontown. Plaintiff's pain management specialist: Charles Daknis from Shrewsbury. Plaintiff's orthopedist: Dr. Swick from Tinton Falls.

Mabson vs. Sutton. Judge James Courtney, 9-01.

Miller & Gaudio PC in Red Bank.


Psychiatric Malpractice

$75,000 RECOVERY - Psychiatric Malpractice - Negligence occurs in 1970s - Condition of Alexithymia allegedly precludes plaintiff from ascertaining potential fault of defendant - Case settles prior to hearing on motion to dismiss for failure to file within Statute of Limitations.

Monmouth County

The female plaintiff in her early 40s at the time of the recovery had been treated for depression by the defendant psychiatrist from 1970-1973. The plaintiff contended that the defendant took advantage of the patient's dependency, isolating her and improperly coercing her into undergoing several injections of Sodium Pentothal, which created a hypnotic state. The plaintiff could not describe any untoward events that occurred during such states. The plaintiff also contended that the defendant took advantage of her by advising her to partially disrobe on several occasions and by conducting an internal examination, advising her that he could thereby determine if she were pregnant. The plaintiff contended that she suffered an aggravation of her depression and a post-traumatic stress disorder, which caused heightened anxiety and depression.

The defendant had no recollection of the plaintiff. The defendant also contended that the action should be barred by the Statue of Limitations. The plaintiff's currently treating psychiatrist contended that the plaintiff suffered from a psychiatric condition known as Alexithymia, which entailed a predisposition to blame oneself for injuries caused by others. The psychiatrist contended that the condition was very significant and prevented the plaintiff from realizing that the defendant, whom she had idolized, had harmed her until shortly before the action was brought.

The plaintiff maintained that although improved, she will permanently suffer the effects of the aggravation to some degree. The case settled prior to the hearing on the motion to dismiss for $75,000.

REFERENCE:

Plaintiff's expert/treating psychiatrist: Robert Bransfield from Middletown. Plaintiff's expert psychiatrist on deviation: Pamela Moss from Princeton.

Docket no. L-6189-92; Judge Mark Sullivan, Jr., 12-96.

Attorney for plaintiff: Frank S. Gaudio of Miller & Gaudio PC in Red Bank.


Legal Malpractice

$72,500 RECOVERY - Legal malpractice - Failure to name family physician who misdiagnosed pseudo-aneurysm in leg after cardiac catheterization as a defendant - Continued bleeding into area of muscle - Peripheral neuropathy suffered by plaintiff diabetic.

Union County

This was a legal malpractice action involving the male plaintiff in his late 50s who contended that the defendant attorneys negligently failed to name the plaintiff's family physician, who allegedly misdiagnosed complications following the performance of a cardiac catheterization, as a defendant. In the underlying case, an interventional cardiologist, who was not located near the plaintiff's home, had performed the planned catheterization because he was referred to the plaintiff by the plaintiff's union.

The plaintiff developed a pulsating mass slightly below the insertion point in the groin a few days after the procedure and it progressed downward. The plaintiff visited his family physician, who was nearby. The plaintiff contended, in the underlying case, that the family physician negligently failed to recognize that the plaintiff had suffered a complication of the catheterization known as a pseudo-aneurysm which permitted blood to accumulate in the muscle sheath near the insertion site. The plaintiff contended that the family physician advised him to use hot compresses, which was contraindicated.

The plaintiff maintained in the legal malpractice action that when the defendant attorney obtained the family physician's records and forwarded them to the medical expert, the expert could not read them. The plaintiff contended that the defendant attorney failed to order a transcription as provided for by code. The plaintiff asserted that the defendant attorney negligently failed to name the family physician and brought suit against the cardiologist only. The plaintiff maintained that during discovery and after the Statute of Limitations had run, it became apparent that the plaintiff has initially suffered a recognized complication of the catheterization and that the cardiologist was not negligent. The plaintiff contended that the medical negligence resulted in the development of peripheral neuropathy.

The defendant attorney denied that he was told by the medical expert that he needed to order a transcript of the records. The plaintiff countered that the original medical expert had submitted a written request for such transcript. The defendant also maintained that the peripheral neuropathy was caused by the plaintiff's diabetes and not the alleged negligence of the physician. The plaintiff countered that an EMG showed that the location of the nerve injury was the same area where the pseudo-aneurysm occurred. The plaintiff contended that a diabetic related peripheral neuropathy would tend to be more diffuse and bilateral. The plaintiff who has retired on his UAW pension and made no wage claims. The evidence disclosed that the plaintiff has been able to remain reasonably active and travel with his wife.

The case settled prior to $72,500.

REFERENCE:

Plaintiff's legal expert: James Hely of Mountainside.

Rossi. Judge Edward Beglin, 9-01.

Miller & Gaudio PC in Red Bank.


Boat Accident

$72,500 RECOVERY - Defendant operating cabin cruiser strikes day marker in Cape May Harbor - Plaintiff passenger falls forward into boat's cabin - Bilateral cervical facet syndrome - Borderline carpal tunnel syndrome.

Cape May County

The plaintiff guest on the defendant's 24-foot cabin cruiser contended that the defendant operated the boat in a negligent manner, striking a day marker and propelling the plaintiff forward into the boat cabin some four feet below, causing her to strike her head and shoulders. The plaintiff maintained that a cervical sprain was initially diagnosed along with 1.5 cm scalp laceration. The plaintiff contended that she continued to suffer daily headaches, dizziness and difficulties sleeping, and that ultimately, bilateral cervical facet syndrome was diagnosed, prompting trigger point injections. The plaintiff also contended that she suffered wrist symptoms commencing at the time of the accident and that an EMG revealed borderline carpal tunnel syndrome. The defendant contended that the plaintiff suffered a resolving cervical sprain only and that any additional complaints stemmed from preexisting conditions. The plaintiff countered that she had no prior symptoms that would be consistent with the defendant's position.

The case settled prior to trial for $72,500.

REFERENCE:

Plaintiff's orthopedist: Maureen Gottfried from Somers Point. Plaintiff's neurologist: Arun Kachroo from Medford.

Codianni vs. Hepner. Docket no. L-693-02; 1-03.

Attorney for plaintiff: Frank Gaudio of Miller & Gaudio PC in Red Bank.


Premises Liability

$65,000 RECOVERY - Failure to maintain exterior stairway leading to hotel - Portion of step collapses - ACL Tear superimposed on pre-existing knee arthritis.

U.S. District Court, Trenton

The female plaintiff, age 71 at the time, contended that a portion of a step collapsed as she was entering the defendant's premises, causing her to suffer a tear of the anterior cruciate ligament in the right knee. The plaintiff related that she had undergone a prior arthroscopic surgery for right knee arthritis and maintained that despite the prior condition, she was very active and able to walk without difficulties. The plaintiff maintained that she will permanently suffer significant pain and restriction because of the subject injury.

The defendant contended that any continuing complaints stemmed from the pre-existing arthritis. The case settled prior to trial for $65,000.

REFERENCE:

Halsted vs. Laurel Vila and Casino, Inc. Docket no. 01-2178; 3-03.

Attorney for plaintiff: Frank Gaudio of Miller & Gaudio PC in Red Bank.


Medical Malpractice

PLAINTIFF'S VERDICT - PIP Suit - Aggravation of pre-existing disk injuries necessitating prior surgeries - Subsequent laminectomy and physical therapy - Medical bills of approximately $55,000.

Monmouth County

The plaintiff driver in her mid-30s brought this PIP suit for the payment of approximately $55,000 in medical bills for the costs of a lumbar decompression of a herniated disk and the insertion of hardware, as well as physical therapy. The plaintiff had undergone bilateral laminectomies approximately one year before the subject accident because of a prior herniation, which entailed the excision of disk material at L4- L5. The plaintiff contended that she was faring fairly well, had no treatment for approximately four months before the subject accident and that the collision severely aggravated the lumbar condition, mandating the surgery. The defendant denied that the plaintiff's claims should be accepted and established that this surgery had been recommended even before this accident. The plaintiff countered that although the operation had been recommended, she had declined because she did not wish to undergo the rigors of the operation as well as the long recuperation.

The plaintiff maintained that prior to the accident, she was able to walk without a cane and could walk upstairs without extensive difficulties. The plaintiff contended that after the collision, she could no longer do so and that she could no longer reasonably decline the surgery. The plaintiff contended that it was clear that the accident mandated the operation, which she otherwise would not have undergone.

The case was tried before the court and the court held the accident caused an aggravation and that the treatment was related. The plaintiff's motion for attorney feels is pending.

REFERENCE:

Plaintiff's orthopedist: Cary Glastein from Tinton Falls. Defendant's orthopedist: Nasser Ani from Hazlet.

Dickerson vs. Allstate. Docket no. L-1305-95; Judge Thomas Cavanaugh, 6-98.

Attorney for plaintiff: Frank S. Gaudio of Miller & Gaudio in Red Bank.


Sexual Abuse Of Minors

$50,000 RECOVERY VS. MOLESTER'S WIFE $750,000 default judgment against incarcerated molester - Sexual abuse of child - Emotional distress.

Monmouth County

This was an action involving a 9-year-old infant plaintiff who, over an approximate one-year period, was sexually abused by her next door neighbor upon spending time in defendant's home when the defendant's granddaughter was visiting. The assailant was convicted and is currently incarcerated. Prior to the commencement of this suit, the defendant and his wife had divorced and the wife had obtained title to the marital premises. The plaintiff brought this action in the Chancery Division, obtaining an order prohibiting any further transfer of the property to any third party. The infant plaintiff contended that she sustained a severe emotional injury for which she receiving therapy. The evidence would have disclosed that the prognosis is favorable because of a very supporting home environment.

The case against the wife settled for $50,000. The plaintiff also obtained a default judgment against the molester for $750,000.

REFERENCE:

Docket no. C-233-02; Judge Clarkson Fisher, Jr., 5-03.

Attorney for plaintiff: Frank S. Gaudio of Miller & Gaudio PC in Red Bank.


Ob/Gyn

$40,000 RECOVERY - Failure to perform total hysterectomy/oophorectomy and obtain pelvic washings upon finding of ovarian mass - Need for subsequent surgery to properly stage ovarian cancer - No claim that alleged deviations worsened prognosis of patient diagnosed with Stage 2 cancer and who has remained cancer free for seven years.

Middlesex County

The female plaintiff in her late 50s contended that she visited the defendant ob/gyn with complaints of dysfunctional vaginal bleeding, abdominal pain and cramping and that the defendant scheduled a hysteroscopy, possible laparoscopy and a D&C to be performed a month later. The plaintiff visited a non-party GI specialist in the interim and this physician took a CT scan of the abdomen and pelvic area which revealed a pelvic mass. The plaintiff contended that although advised by the non-party physician, the defendant negligently failed to consider cancer and removed one ovary, rather than extracting a sample for a frozen section which would have returned within a 1/2 hour as positive for cancer, enabling the defendant to complete the total hysterectomy/oophorectomy in the same procedure.

The plaintiff contended that when the mass returned sometime later as positive, she required a second surgery in which the uterus and remaining ovary were removed. The plaintiff also contended that the defendant deviated in using a low horizontal incision and maintained that he should have used a vertical incision, which would permit access to the abdominal area for pelvic washings and palpation of lymph nodes, which would be required for proper staging. The plaintiff contended that as a result of these deviations, she required a third surgery, which the plaintiff maintained would not have otherwise been necessary. The cancer was diagnosed at Stage 2 A, the plaintiff underwent five cycles of chemotherapy which would have nonetheless been necessary and has remained cancer free for seven years.

The defendant contended that he had, in fact, palpated the nodes. The plaintiff countered that the defendant's records did not support this position. The defendant did not contend that he took pelvic washings. The defendant contended that the plaintiff would have required the subsequent surgery notwithstanding the care provided by him and maintained that the third procedure was, in fact, equivalent to "second look" surgery which is often done in cases of ovarian cancer. The plaintiff countered that irrespective of this issue, she would not have required the second procedure in which the hysterectomy and oophorectomy were completed.

The case settled during trial for $40,000.

REFERENCE:

Plaintiff's expert gynecologic oncologist: Nicholas Kadar from
Princeton.

Docket no. L-3906-978; Judge Douglas Hague, 3-00.

Miller & Gaudio PC, in Red Bank.


Racial Discrimination

$40,000 RECOVERY - Employment Discrimination/Civil Rights Statute - Plaintiff nurse allegedly terminated from employment as nurse at long-term facility several days after commencing work because of racial and religious reasons.

U.S. District Court, Trenton

The 57-year-old female plaintiff, an African-American registered nurse who was a Jehovah's Witness, contended that three days after she was hired by the defendant health care system to work in its long-term care facility, she was terminated because of her race and religious affiliation.

The defendant operated a hospital and long-term care facility. The plaintiff maintained that the workers and supervisors in the long-term care facility did not have a voice in the hiring decisions which were made by the personnel department and that there were no other African-Americans employed at the long-term care facility. The plaintiff maintained that on her third day, a co-worker had brought in a watermelon, walked over to her with the biggest piece and in effect baited her by saying that the plaintiff was probably "dying for this." The plaintiff contended that a nursing supervisor was close by, took no action to reprimand the worker and had, in fact, snickered. The plaintiff asserted that the supervisor had condoned the action and that there was apparently a hostile attitude toward African-Americans at the facility.

The plaintiff maintained that later that day, she was repeatedly asked to contribute $1 toward a lottery pool in which workers frequently participated. The plaintiff contended that when she declined because gambling is not permitted by her religion, the workers persisted, sarcastically inquiring if she were a Jehovah's Witness. The plaintiff indicated that she answered in the affirmative and advised her co-workers that she could not participate.

The plaintiff maintained that the next day, she was informed that she had not passed the written and practical aspects of the medication dispensing exams of the orientation and was then terminated. The plaintiff maintained that such reason for the termination was pretextual.

The defendant denied that the plaintiff was the victim of discrimination and contended that she was validly terminated for incompetency because of these failures. The plaintiff countered that there was a written policy of permitting a nurse to take the tests a second time and that in view of the failure of the defendant to offer her such a chance, the defendant's position should be rejected. The defendant contended that only a very few individuals had been given such a second chance. The plaintiff countered that very few nurses had been terminated during orientation. The plaintiff also established that the nurse who had brought the watermelon had been given a retest.

The plaintiff also denied that the defendant's position that she had failed the practical aspect, which involved dispensing medications, should be accepted. The plaintiff maintained that although the defendant had contended that the plaintiff gave the wrong dosage of Xanax to a patient, the proctor had indicated in discovery that the patient and not the proctor had detected the error. The plaintiff asserted that the absence of any punishment of the Caucasian proctor evidenced disparate treatment. The plaintiff further questioned whether this error actually occurred. The plaintiff maintained that when such a mistake occurs with a controlled substance such as Xanax, federal regulations require that the incident be recorded and two signatures be placed, evidencing that the medication has been disposed of properly. The plaintiff did not recall being advised of this alleged mistake and maintained that in view of the absence of records, the defendant's position should be questioned.

The plaintiff maintained that she suffered severe emotional distress and was out of work for seven months. The defendant contended that the plaintiff had obtained some per-diem work during this period.

The case settled prior to trial for $40,000

REFERENCE:

Civil Action no. 96-4183; Judge Mary Little Parell, 7-97.

Miller & Gaudio PC, in Red Bank.


ENT

$30,000 RECOVERY - Removal of excessive amount of cartilage during sinus surgery - Cosmetic injury involving flattening of bridge of nose which is correctable.

Monmouth County

The female plaintiff in her mid-20s, who was undergoing sinus surgery, contended that the defendant ENT removed excessive cartilage during the procedure, resulting in a cosmetic deficit.

The defendant denied removing excessive cartilage and contended that the plaintiff struck her nose on the door after the procedure. The plaintiff denied that this contention should be accepted. The plaintiff maintained that although the first two notes reflected a dorsal depression and did not attribute a cause to this injury, the third note reflected the history of the plaintiff striking her nose. The plaintiff maintained that if the defendant's position was accurate, he would have made such an entry in the initial note.

The evidence disclosed that the depression can be corrected through relatively simple surgery.

The case settled prior to trial for $30,000.

REFERENCE:

Plt: Schuber. Docket no. L-5254-95; Judge Alexander Lehrer, 4-00.

Miller & Gaudio PC in Red Bank.


Rear End Collision

$30,000 RECOVERY - Multi-vehicle rear end collision - Soft tissue injuries and cervical bulge without impingement.

Monmouth County

The 45-year-old female plaintiff driver contended that as she was stopped in a line of traffic, the defendant negligently struck the car behind her, propelling it into her car.

The defendant contended that he had difficulty stopping due to the rainy weather conditions. The plaintiff countered that both she and the driver directly behind her were able to stop without incident and that the defendant should have been more cautious in view of the weather conditions.

The plaintiff maintained that she sustained soft tissue lumbar and cervical sprains and strains and a cervical disc bulge without impingement. The plaintiff contended that she will permanently suffer pain and limitation that is more pronounced in the back. The defendant denied that the plaintiff met the verbal threshold. The plaintiff made no income claims.

The case settled prior to trial for $30,000.

REFERENCE:

Schwartzer vs. Mahmood. 3-02.

Miller & Gaudio PC in Red Bank.


Left-Turn Collision

$30,000 RECOVERY - Left turning defendant - TMJ dysfunction - Loss of tooth - slight cosmetic bump on forehead.

Hudson County

The female plaintiff, age 28 at the time, contended that the defendant driver negligently made a left-hand turn into her path of travel.

The plaintiff contended that she struck her mouth and ultimately lost one tooth. The plaintiff also maintained that she suffered TMJ dysfunction which will cause permanent symptoms.

The defendant maintained that the plaintiff was speeding. The defendant further argued that the plaintiff could see the defendant for a significant distance and should have been able to take evasive action. The defendant maintained that any TMJ difficulties were the result of bruxism.

The plaintiff contended that although she was wearing her seat belt, the device in the older car broke upon impact. The plaintiff also contended that she struck her forehead and that the resulting calcification caused a cosmetic bump which will remain permanently. The defendant contended that the deficit was very minimal and the plaintiff maintained that it was obvious to her.

The case settled on the eve of trial for $30,000.

REFERENCE:

Plaintiff's ENT specialist: S. Thomas Westerman, M.D., from Shrewsbury.

Borzone vs. Girnar. Docket no. L-6042-93; Judge Richard Connor, 10-96.

Miller & Gaudio PC in Red Bank.


Premises Liability

$20,000 RECOVERY - Plaintiff former tenant trips and falls in apartment complex - Avulsion fracture to radial head on dominant hand - Plaintiff returns to work as a hairdresser five weeks post-accident.

Monmouth County

The plaintiff in this case, a female approximately age 40, had resided in the defendant apartment complex where the fall occurred until approximately four months prior to the incident. The plaintiff contended that the defendant landlord negligently failed to repair a section of uneven walkway, resulting in her tripping and falling as she was picking up her daughter from a visit with friends at approximately 8 p.m. in February. The plaintiff also contended that the lighting was inadequate.

The defendant contended that the height differential was within accepted engineering standards and the plaintiff would have countered through photographs taken of the area and which also depicted a ruler, arguing that the defendant's position was inaccurate. The defendant also maintained that the lighting was adequate. The defendant contended that the plaintiff, who had lived at the complex until four months earlier, was comparatively negligent. The plaintiff countered that she lived in a different area of the relatively large complex.

The plaintiff contended that she suffered an avulsion fracture of the radial head on the right, dominant arm. The fracture was treated with a sling. The plaintiff, who is a hairdresser, returned to work five weeks later and indicated that the fracture essentially resolved without restriction on her activities.

The case settled prior to suit for $20,000.

REFERENCE:

Pimpinella vs. Knollwood Gardens, 3-01.

Miller & Gaudio PC in Red Bank.