Liability – Dog Attack Precipitating Twisting Motion Causing Severe Back Injury – LISA WILSON v. NUYORICAN PRODUCTIONS, INC., JENNIFER LOPEZ, and MARC ANTHONY, a/k/a MARCO ANTONIO MUNIZ.

USDC for the Eastern District of New York, Case No. :08-CV-02555. On 7/3/06, Lisa Wilson, a 39 year old flight attendant on a corporate jet, employed by NetJets, Inc. for approximately 8 years, was covering a flight on which Jennifer Lopez, Marc Anthony, and various members of their entourage were flying from New York to Los Angeles. Ms. Lopez was a “fractional share” owner of the Gulfstream aircraft, which is similar to a time share, and was treated as the owner of the plane whenever her party was on board. They brought their guard dog, a 3 year-old male German Shepherd, trained as a personal protection dog. Marc Anthony gave Wilson specific instructions about approaching the dog before takeoff. The animal was not restrained on the plane. While walking the narrow aisle of the aircraft, Lisa had to step over the dog. When she did so, he lunged at her suddenly, causing her to jump back, stumble, turn, almost fall and twist her back. Although not bitten, Lisa’s pant leg was wet in the area where the dog had “butted” her. This was confirmed by Marc Anthony’s personal assistant. Plaintiff’s animal behaviorist opined, based upon all the deposition testimony, that this dog had a history of reacting very aggressively when he observed anyone approach Marc Anthony with silverware or every day sharp objects such as pens, and had growled at several chefs, a relative manager and at their housekeeper before the Wilson occurrence. Marc Anthony had explained to his son that the dog was acting this way because he perceived silverware as a weapon. Our animal behavior expert also opined that any guard dog whose owner has to give instructions to everyone it meets has dangerous propensities, because this should not be necessary with a properly trained dog. She further advised that “butting” is a learned behavior for these dogs, meant as a last warning before biting, and that if these dogs were not a threat, that they could not be sold for personal protection. Lisa was about to give Marc Anthony silverware on the flight, which obviously provoked the attack. The dog’s treating veterinarian was deposed by the defense, who testified that the dog was a “woos”, but he conceded from his fairly extensive experience with guard, police and military dogs, that if the owner has to give people instructions when meeting the dog, it is because the dog is “unpredictable,” that this is not normally necessary with about 80% of these dogs that require aggressive behavior to function in their given tasks. The vet also conceded that he could not predict how the dog would react to any given stimulus unless he observed the dog in the presence of that particular stimulus. The defense contention was that the owners had no reason to suspect that the dog had any vicious propensities, nor had the dog bitten anyone before the occurrence, and that all the dog had done in this instance was to growl at the plaintiff.

Injuries – Wilson had no history of prior low back injury or complaint. When the flight arrived in Los Angeles, she advised her supervisors that due to back pain, she could not continue on to Hawaii as scheduled for the following day, and spent the next 3 days in the hotel room. Under the Florida worker’s compensation system, (she lived in FL at that time), all appointments had to be made for her by the worker’s comp carrier, so her first medical visit was approximately a week after the occurrence. Due to the fact that there was no immediate medical attention, the defendants deposed both of the pilots, expecting that they would not be able to support Wilson’s claim of a dog incident. The co-pilot remembered her complaining about her back right away, and testified that when she got off the flight, that she said that she would not be able to go on to Hawaii because her back was killing her, and the pilot testified that she was visibly shaken up about the dog. Although Wilson received excellent performance reviews and raises every year, she was never able to return to work. She continued with conservative treatment in Florida for about 9 months post accident, when she had the first lumbar spine fusion at L5-S1. She was asymptomatic after that procedure for a period of 4-5 months, when the localized back pain followed by radicular left leg pain returned. She subsequently moved to Texas, and had another lumbar fusion at L4-5.

Wilson has made a good recovery for the time being, but her treating surgeon testified that he had advised her that she should do sedentary work to avoid additional risk of problems, such as adjacent segment disease, at the next level up, L-3, and she should not be working in a job where she regularly has to twist, turn, crawl, and get into tight spaces, all requirements for continued work as a flight attendant. Lisa’s carrer goals have now changed as she plans to become a counselor for children, will be attending the community college where she lives in Texas, go on to Texas A&M to get a Bachelor’s degree, which would qualify her to work as a teacher. She then hopes to go to graduate school, obtain a Master’s degree and work as a counselor. Our vocational rehabilitation expert offered an opinion on what her earnings would be as an employee of the local Texas school district, and our economist was prepared to testify to the difference between what she would have earned as a senior flight attendant for NetJets and what she would have earned as a school counselor, adding in the cost of her additional education.

The case settled on December 22, 2009, two weeks before jury selection was scheduled before Judge Jack Weinstein in United States District Court for the Eastern District of New York. The amount of the settlement cannot be released due to a confidential settlement agreement.

Construction Accident – Wrongful Death – Est. of Doreen Browne v. The City of New York, et al. Bronx County Supreme Court Index No. 18285/94 J. Louis Benza – Verdict Rendered 9/11/00.

A brick wall down the block from premises under renovation collapsed and killed the plaintiff, a 63 year old home attendant, walking along the sidewalk. Defendant Prime Contracting told the adjoining owner of the potential problem created on the entire block by the weakness in the parapet wall, but the adjoining owner refused to contribute to remediate, so Prime continued to do the work without stopping the job. Plaintiff contended that Defendant Prime had actual notice of the dangerous condition of the wall, and produced evidence that Prime’s field supervisor had made two comments about the wall: the first approximately 3 weeks before the accident, when he stated that the wall was an accident waiting to happen, and the second, 4 days before the accident, when he said that he was surprised that the facade had not yet fallen. The $15,000,000 punitive damage verdict was reduced by the trial judge to $1,500,000, which was unanimously sustained by the Appellate Division at 308 A.D.2d 372; 764 N.Y.S.2d 269.

Construction Accident – Labor Law – Negligence – Paul Barraco v. et al. New York County Supreme Court Index Nos. 112247/99 590688/00 J. Karen S. Smith – Verdict Rendered 5/5/06.

Plaintiff, a 35 year old construction foreman, was walking on a sidewalk bridge which collapsed, falling approximately 8 feet onto his heels, sustaining severe bilateral calcaneus fractures. He later developed low back symptoms as a result of antalgic gait. The Bill of Particulars was later amended to allege RSD (CRPS), and to increase the ad damnum from $5 Million to $20 Million was which granted. The defense contended that the low back was completely unrelated to the accident, and that the plaintiff did not have RSD, but only mild myofascial pain. Although plaintiff’s tax returns had showed only about $35,000 per year, his father-in-law was one of the principals of the company he worked for, and it was claimed that he was being groomed for a highly paid position as an estimator, and eventually as a principal of the company. This claim was dismissed by the defense as speculative. Although summary judgment had been granted on Labor Law 240(1) as against the owners, plaintiff proceeded to try liability against Bridgeworks, which had fabricated and installed the sidewalk bridge and the engineers who were supervising the work. There was also a third party action against plaintiff’s employer. The jury found Bridgeworks 90% at fault, the engineers 5%, and plaintiff’s employer 5%. No comparative fault was assessed against plaintiff. The case was settled prior to the 50-B hearing for $11,575,000.

Fall from Ladder – Labor Law § 240(1), Thomas Smith v. Cari, LLC, Supreme Court, Kings County Index No. 8697/05.

Plaintiff, a 42 year old fire sprinkler mechanic, was making a repair to a gravity tank on the roof of a building when the loops at the top of the ladder he was climbing came out from the tank, causing him to fall and sustain bilateral calcaneus fractures with operative reductions. A medical animation was made showing the operative reduction [Link to Animation]. Defendant contended that the plaintiff himself was supposed to repair the ladder, so his use of the ladder without repairing it constituted sole proximate cause, at the very least, barring plaintiff from obtaining summary judgment on his Labor Law claim, but summary judgment on § 240(1) was granted by the trial court. On interlocutory appeal, the order was unanimously affirmed by the Appellate Division, Second Department 4/15/08 at 2008 NY Slip Op 3441; 2008 N.Y. App. Div. LEXIS 3371. Plaintiff had a federal drug conviction, and although he was earning a substantial amount of money in the years before his accident, he had never worked outside the family business. Settlement agreement was reached during deliberations after two weeks of trial.

uring Trial – Products Liability – Arsenio Leiva v. Marietta Trucking, et al. – New York County Index No. 16501/91 – J. Martin Schoenfeld – Settled 12/8/2000 after two weeks of trial.

Plaintiff, a truck mechanic from Paraguay, was totally blinded in one eye when a truck battery manufactured by Exide Corporation exploded. A disgruntled former Exide employee was found who testified that there had been numerous explosion cases involving the same battery and similar models, which formed the basis for a claim of punitive damages, which was sustained upon interlocutory appeal to the Appellate Division. Plaintiff’s allegation was that it was known that the vent caps which were being used were subject to clogging, which would prevent gasses normally generated by the battery cells from escaping. These gasses accumulated, creating an inordinate risk of explosion when the vehicle was first started after a period of disuse. During discovery, it was ascertained that he defendant, Exide Corporation, had internally developed an alternative design of vent cap well before the accident which was permeable by gas, but not by liquid, rendering clogging impossible. This was successfully adopted as plaintiff’s “alternative design” theory on trial. Despite the minimal cost of doing so, Exide did not retrofit the batteries it had in stock, and the battery which injured plaintiff was shipped them out with the old design.

Against $1,000,000 total available insurance coverage. – Motor Vehicle – Norma Lawrence-Mayne v. Daniel L. Masten & Eastern Express, Inc., Supreme Court, Bronx County, Index No. 13101/03, settled 3/12/07.

Plaintiff, a 52 year old nursing assistant, was driving her vehicle when she was sideswiped by a tractor-trailer truck on I-95 in Mamaroneck, New York. Defendant driver claimed that plaintiff had sideswiped the left rear of his truck as he was merging into the lane in which plaintiff was driving. Plaintiff claimed that she hit her knee on the console on impact. She sustained a meniscal tear, chondromalacia, and aggravation of pre-existing degenerative arthritis in her knee. Defendants claimed that plaintiff’s knee injuries were all longstanding, pre-existing and completely unrelated to trauma. Defendant’s vocational expert opined that plaintiff was employable at her pre-injury salary. Defendants offered $950,000 of the $1,000,000 total available insurance coverage prior to trial.