Formerly The Carolina Verdict Reporter

Carolina Vol. 13 Issue 10 • January 2018

Motor Vehicle Cases of Note Plaintiff: Contractor’s Worker/Workplace Negligence - Negligent Repair Mecklenburg County, NC employee negligently Botched oil change destroyed vehicle’s motor, per plaintiff ...... 5 ran over him Motor Vehicle - Alcohol Involvement - Parked Car Charleston County, SC Vehicle’s value reduced due to damage from crash: plaintiff . . . . . 6

$6,000,000 Motor Vehicle - Rear-ender - Multiple Impact Charleston County, SC Rear-ended driver slammed on brakes, defense contended ...... 6 McNeill v. Marshall

U.S. District Court, SC Motor Vehicle - Rear-ender - Multiple Impact Charleston County, SC Treatment gaps noted by defense in auto injury dispute ...... 7 Plaintiff Counsel Mark J. Bringardner; Mark C. Joye, Joye Law Firm LLP, North Charleston SC Motor Vehicle - Intersection - Stop Sign Richland County, SC Defense Counsel David S. Cobb; Nickisha M. Shoulder injury limitations disputed in motor vehicle case ...... 8 Woodward, Turner Padget Graham and Laney P.A., Charleston, SC Motor Vehicle - Tractor-Trailer - Rollover U.S. District Court, SC Shifting cargo caused truck to tip, plaintiff asserted ...... 10 Full report on page 9 Worker/Workplace Negligence - Negligent Hiring U.S. District Court, SC Chemical manufacturer denied liability for respiratory illness . . . .12

VerdictSearch CArolina table of contents

NORTH CAROLINA Federal

MOTOR VEHICLE MECKLENBURG COUNTY Pedestrian

WORKER/WORKPLACE NEGLIGENCE Verdict $6,000,000...... 9

Breach of Contract MOTOR VEHICLE

Arbitration $9,000...... 5 Tractor-Trailer

Verdict $325,000...... 10 WORKER/WORKPLACE NEGLIGENCE

Charleston County Negligent Hiring

Verdict Defense...... 12 MOTOR VEHICLE

Alcohol Involvement etl a ...

Verdict $10,100...... 6 Attorney Services Directory...... 14

MOTOR VEHICLE Index...... 16

Rear-ender

Verdict $20,000...... 6

MOTOR VEHICLE

Rear-ender

Verdict $32,098...... 7

Richland County

MOTOR VEHICLE correction policy: We urge readers to report any Intersection factual errors. A correction will be prominently placed in an upcoming issue. Please telephone Carol Scott, editor, at 800-424-1591, or send an Verdict $195,000...... 8 e-mail to [email protected].

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I njuRIEs/Damages The engine of Foster’s car was NORTH CAROLINA destroyed and the vehicle was left inoperable. Because of Foster’s limited financial means, she claimed she was unable MECKLENBURG COUNTY to buy a new car or fix the engine. Foster’s counsel claimed that the Kelley Blue Book WORKER/WORKPLACE NEGLIGENCE estimated the value of her car at $3,214 to $6,475. A Chevy Breach of Contract — Negligent Repair — Deceptive Trade Practices dealership also estimated that the cost of the engine repair would be $5,740.55. Foster’s counsel additionally produced an expert who claimed the replacement value of the vehicle Botched oil change destroyed was $3,000. vehicle’s motor, per plaintiff Foster claimed that Dabra offered to purchase the damaged car in August 2016 for just $1,300. She further alleged that he offered her $1,500 in December 2016, but also threatened A rBITRATION $9,000 to charge her more than $3,000 for storing the non-working Case Antoinette Foster v S and Sons Automotive vehicle at his shop. Inc. d/b/a SpeeDee Oil Change and Auto Foster said that she ultimately had the car towed from Service, Sanjay Dabra, as owner of S and SpeeDee and stored at her uncle’s lot, incurring towing and Sons Automotive d/b/a SpeeDee Oil Change storage fees. She also claimed that, because she no longer and Auto Service, and SpeeDee Worldwide had use of a car, she incurred $2,500 in transportation costs, Corporation, No. 17-CVD-11544 missed appointments and failed to get her kids to school on Court Mecklenburg County, District Court, time. Charlotte, NC The defense did not produce any evidence countering Nutral e (s) Jeffrey I. Garis Foster’s valuation of the vehicle. De at 10/12/2017 Rltesu Arbitrator Jeffrey Garis determined that Foster’s Plaintiff damages totaled $9,000, three times the replacement value Attorney(s) Abbey Krysak, McGuireWoods LLP, of the car. Foster was also awarded interest and costs. Charlotte, NC Susan C. Rodriguez, McGuireWoods LLP, Plaintiff Expert(s) Billy Walkowiak, automotive valuation, Charlotte, NC Belmont, NC Defense Defense Attorney(s) Amy C. Drayton, Dean & Gibson, PLLC, Expert(s) None reported Charlotte, NC E dITOR’s Note This report is based on information that Fact s & Allegations On June 22, 2016, plaintiff was provided by plaintiff’s counsel. Defense counsel did not Antoinette Foster took her 2005 Chevrolet Cobalt to SpeeDee respond to the reporter’s phone calls. Oil Change and Auto Service in Charlotte for an oil change. She paid $39.67 and then waited for her car to be repaired. –Melissa Siegel Once she was told her car was ready, she drove it out of the SpeeDee Oil Change lot. After she drove for about two miles, her engine failed. She then discovered that SpeeDee had taken the oil out of her car, but failed to replace it. Foster sued S and Sons Automotive d/b/a SpeeDee Oil Showcase your firm’s unique position in the Change and Auto Service, owner Sanjay Dabra and the legal market by becoming a preferred franchisor SpeeDee Worldwide Corporation. She alleged advertiser of VerdictSearch. breach of contract, negligence and violation of the Unfair and Deceptive Trade Practices Act. Dabra, the owner of S and Sons, admitted that the company Don’t be left out. Call VerdictSearch failed to replace the oil in Foster’s car, thereby destroying the now regarding advertising today! engine. He refunded her the $39.67 for the oil change, but Foster alleged that she was not properly compensated for the loss of use of her vehicle. To advertise or to obtain more information: The case proceeded to trial on damages only. Call: James Gault at (800) 445-6823 or email: [email protected]

January 2018 www.verdictsearch.com 5 SOUTH CAROLINA VerdictSearch Carolina

Rltesu The jury awarded $10,100 in actual damages. The South Carolina jury declined to award punitives.

Charleston County I nsuRER(s) State Farm Insurance Cos. for Ballzigler

T rIAL DeTAILs Trial Length: 2 days MOTOR VEHICLE Trial Deliberations: 2 hours Alcohol Involvement — Parked Car — Multiple Vehicle E dITOR’s Note This report is based on information that Vehicle’s value reduced due to was provided by plaintiff’s counsel. Defense counsel did not respond to a request for comment. damage from crash: plaintiff –Carol Meirow

Verdict $10,100

Case Linda Leland v. Fletcher Ballzigler, MOTOR VEHICLE No. 2016CP1003541 Rear-ender — Multiple Impact — Multiple Vehicle Court Charleston County, Court of Common Pleas, SC Judge J.C. Nicholson, Jr. Rear-ended driver slammed on De at 11/9/2017 brakes, defense contended Plaintiff Attorney(s) Johnny F. Driggers, Law Office of Johnny F. Verdict $20,000 Driggers, Goose Creek, SC Case Deborah Nelson Coleman v. Lauren Defense Rebecca Bigoney and Carlton Leroy Attorney(s) Michael J. Ferri, Grimball & Cabaniss, Commodore, No. 2014CP1005485 LLC, Charleston, SC Court Charleston County, Court of Common Pleas, SC Fact s & Allegations On May 2, 2016, plaintiff Linda Judge Thomas L. Hughston Leland, 69, retired, was having dinner at home with relatives De at 11/3/2017 when Fletcher Ballzigler struck her parked vehicle while operating his pickup truck. Ballzigler then backed up and his Plaintiff truck became stuck on a tree he had run over. Leland filed a Attorney(s) J. Kevin Holmes, Steinberg Law Firm, LLP, claim with the liability carrier, State Farm, for the property Charleston, SC damage. State Farm paid for repairs made to the vehicle, but Leland also claimed a depreciation in the vehicle's value. Defense Attorney(s) Jeffrey M. Crudup, Clarkson, Walsh Leland filed suit against Ballzigler, alleging that he was & Coulter P.A., Greenville, SC (Lauren negligent and reckless in the operation of a motor vehicle. Rebecca Bigoney) Leland alleged that Ballzigler had been driving under John Michael Montgomery, Sowell Gray the influence of alcohol at the time of the accident and that Robinson, Columbia, SC (Carlton Leroy he attempted to leave the scene after hitting her vehicle. Commodore) According to Leland, she took her vehicle multiple times to a repair shop designated by State Farm. Leland argued that Fact s & Allegations On Oct. 22, 2011, plaintiff she expected the repair shop to repair a laser-guided cruise Deborah Nelson Coleman, 62, who was retired on disability control system that was damaged in the crash, but the repair because of a stroke, was operating a vehicle on U.S. shop was never able to diagnose it properly and/or repair Highway 17 S/Crosstown Expressway in Charleston. Traffic this feature. As a result of the accident and the repair shop’s reportedly came to a stop when another driver attempted inability to repair the cruise control system, she claimed a to make an illegal left turn. Upon stopping, her vehicle was depreciation in the value of her vehicle. rear-ended by a vehicle driven by Lauren Rebecca Bigoney. Ballzigler pleaded guilty to a driving with an unlawful A second impact to the rear of Coleman’s vehicle occurred alcohol concentration (DUAC), which was a reduced charge. when Bigoney’s vehicle was rear-ended and pushed forward into Coleman’s vehicle. The driver who rear-ended Bigoney I njuRIEs/Damages Leland claimed the value of her was Carlton Leroy Commodore. Coleman claimed neck and vehicle was depreciated because of the accident. She sought shoulder injuries as a result of the impact. actual and punitive damages. Coleman sued Bigoney and Commodore, alleging they were negligent in the operation of their respective vehicles.

6 www.verdictsearch.com January 2018 VerdictSearch Carolina SOUTH CAROLINA

Coleman alleged that Bigoney and Commodore were Plaintiff following too closely. She also argued that they failed to keep Attorney(s) W. Scott Palmer, W. Scott Palmer Law Firm, a proper lookout. P.A., Santee, SC Bigoney and Commodore alleged that Coleman slammed on her brakes and was contributorily negligent. Defense Attorney(s) Brian James Kern, Turner, Padget, Graham I njuRIEs/Damages herniated disc, cervical; neck; & Laney, Charleston, SC shoulder Immediately after the accident, Coleman complained Fact s & Allegations On May 7, 2015, plaintiff Ana of neck and shoulder pain. An MRI of the cervical spine Maria Carillo Sanchez, 40s, a housewife, was traveling in her revealed a disc herniation. She treated with injections. conversion van on Harborview Road in Charleston County. Coleman was assigned a 16-percent impairment of the She was stopped in a line of traffic at a traffic light when her neck. She sought $18,000 in medicals, as well as damages van was struck from behind by a Ford F-350 pickup truck for pain and suffering. driven by Kurt Arthur Oberle. The impact pushed Sanchez’s The defense disputed injury causation and contended that van into the vehicle ahead of it. The chain reaction that Coleman had a pre-existing cervical condition for which she occurred involved a total of five vehicles. Sanchez claimed had previously treated. neck and back injuries as a result of the accident. Sanchez filed suit against Oberle, alleging that Oberle was Rltesu The court directed a verdict for Coleman on liability negligent in the operation of a motor vehicle. and the case went to the jury on the issue of damages only. Sanchez alleged that Oberle failed to maintain an The jury awarded $20,000 in actual damages to Coleman, appropriate distance between the vehicles. She also argued which was divided evenly between Bigoney and Commodore. that Oberle failed to keep a proper lookout. Coleman’s underinsured motorist carrier, State Farm, had Oberle admitted fault, but disputed injury causation. previously settled with Coleman for the policy limits of $100,000, which completely negated the jury award. I njuRIEs/Damages abdomen; chiropractic; herniated disc, lumbar; neck; physical therapy; soft tissue; steroid I nsuRER(s) State Farm Insurance Cos. for Coleman injection (underinsured) Sanchez was transported from the scene by ambulance and taken to a local emergency room. She presented with Progressive Casualty Insurance Co. for abdominal, neck and back pain. The neck injury was soft Bigoney tissue in nature. A CT scan of her abdomen was negative. An MRI of the lumbar spine showed a mild disc herniation. Permanent General for Commodore Sanchez was released with instructions to follow up as E dITOR’s Note This report is based on information that necessary. was provided by plaintiff’s counsel. Defense counsel did not Sanchez’s subsequent treatment was comprised of respond to a request for comment. chiropractic adjustments and a couple months of physical therapy for the neck and back injuries. She also presented to –Carol Meirow a physiatrist a few times and underwent steroid injections to the back. Sanchez’s treating doctor, Leonard Forrest, M.D., testified MOTOR VEHICLE via video that Sanchez’s lumbar pain was causally related to the subject accident. Rear-ender — Multiple Impact — Multiple Vehicle Sanchez testified that she is unable to exercise like she did before the accident and has to limit all activities. She claimed Treatment gaps noted by ongoing back pain, as well as intermittent neck pain. She claimed $29,413 in medical expenses. Her attorney asked defense in auto injury dispute the jury to award $150,000 in economic and non-economic damages. Verdict $32,098 The defense presented testimony from the records custodian of Sanchez’s primary care physician, who testified Case Ana Maria Carillo Sanchez v. Kurt Arthur to inconsistencies in Sanchez’s injury claims. The defense also Oberle, No. 2016CP1000922 noted gaps in treatment. Court Charleston County, Court of Common Pleas, SC Rltesu The jury determined that Sanchez’s damages totaled Judge Alison R. Lee $32,097.55. De at 10/25/2017 Dmande $75,000 Offer $50,000

January 2018 www.verdictsearch.com 7 SOUTH CAROLINA VerdictSearch Carolina

T rIAL DeTAILs Trial Length: 2 days Johnson filed suit against Knight, alleging that Knight was Trial Deliberations: 1.5 hours negligent in the operation of a vehicle. Johnson alleged that Knight failed to stop for a traffic control device on Sumter Plaintiff Street. Expert(s) Leonard Forrest, M.D., physical medicine, The liability carrier settled with Johnson for $210,000 (out Charleston, SC of a $250,000 policy). The matter then proceeded to trial with the underinsured motorist carrier, Travelers Home and Defense Marine Insurance Company, defending the case in Knight’s Expert(s) None reported name. Travelers was not named as a defendant, but had E dITOR’s Note This report is based on information that filed a notice of appearance in the case in which it disputed was provided by defense counsel. Plaintiff’s counsel also con- the allegations contained in the complaint. However, the tributed to the report. primary issues at trial were injury causation and damages.

–Carol Meirow I njuRIEs/Damages back; decreased range of motion; fracture, clavicle; fracture, shoulder; aggravation of pre- existing condition; loss of consortium R iCHLAND County Following the accident, Johnson was diagnosed with a clavicle fracture, for which he underwent surgical repair. He claimed future surgery was possible. He also complained of MOTOR VEHICLE back pain. Intersection — Stop Sign — Rollover A post-accident MRI showed chronic compression fractures at T8 and T10, as well as mild increased dorsal kyphosis, but Shoulder injury limitations an otherwise normal MRI of the thoracic spine. Johnson alleged that his back pain was due to an exacerbation of this disputed in motor vehicle case pre-existing condition. Johnson enjoyed playing golf, but had played much less Verdict $195,000 golf in the two years before the accident. However, he claimed restricted shoulder movement after the accident Case Ward Johnson and Deborah Johnson v. forced him to quit playing golf altogether. Robert Lee Knight, Jr., No. 2016CP4001790 Johnson’s treating doctor testified that he would not Court Richland County, Court of Common Pleas, discourage Johnson from getting future surgery if Johnson SC opted to do the surgery. The doctor also testified that he Judge L. Casey Manning would consider surgery to be medically necessary if Johnson De at 11/6/2017 was continuing to experience pain in the clavicle area. Johnson sought $85,000 in past medicals, $45,000 for Plaintiff future medicals, $7,500 for a new Sleep Number bed and Attorney(s) Charnell Glenn Peake (lead), Peake & damages for pain and suffering. He also sought punitive Fowler Law Firm, P.A., Columbia, SC damages. His wife Deborah Johnson sought damages for Robert Anthony Russo, Peake & Fowler loss of consortium. Law Firm, P.A., Columbia, SC The defense asserted that follow-up surgery for Johnson’s Defense shoulder injury was unnecessary. The defense maintained Attorney(s) Brett H. Bayne (lead), McAngus Goudelock that Johnson’s treating doctor indicated that such surgery & Courie LLC, Columbia, SC (Travelers was not medically necessary and that Johnson did not Home and Marine Insurance Co.) indicate he wanted the surgery until after the treating John Andrew Delaney (co-lead), McAngus physician indicated it was not needed. The defense also Goudelock & Courie LLC, Columbia, SC argued that Johnson’s back pain was due solely to pre- (Travelers Home and Marine Insurance Co.) existing thoracic fractures. Robert Lesley Brown, Clawson & Staubes, The defense disputed that Johnson had to quit playing LLC, Columbia, SC (Robert Lee Knight, Jr.) golf because of the subject accident and argued that he had reduced the amount of time he golfed and/or ceased playing Fact s & Allegations On Feb. 9, 2016, plaintiff Ward altogether two years before the subject accident due to deep Johnson, 72 and retired, was driving a 2005 Lexus owned vein thromboses in his feet, which also led him to resign his by his spouse, Deborah Johnson. He was traveling on Laurel country club membership. In response, Johnson’s attorney Street in Columbia at its intersection with Sumter Street reported that Johnson did not have DVTs in his feet and that when the Lexus was broadsided by a 2008 Ford driven it was actually restricted circulation problems that resulted by Robert Lee Knight, Jr. The impact caused the Lexus to in a . overturn. Johnson claimed a shoulder injury and back pain.

8 www.verdictsearch.com January 2018 VerdictSearch Carolina SOUTH CAROLINA

The defense further argued that Johnson was injured in a Federal subsequent automobile accident, but failed to report this to his treating doctors.

Rltesu The jury awarded $191,500 to Ward Johnson, FEATURED VERDICT including $129,000 in actual damages and $62,500 in puni- tive damages, and $3,500 for loss of consortium to Deborah Johnson, for a total of $195,000. The jury’s award was com- MOTOR VEHICLE pletely offset by the prior $210,000 settlement with the liabil- Pedestrian — Reversing Vehicle — Worker/Workplace Negligence ity carrier.

D eBORAH Johnson Plaintiff: Contractor’s employee

$3,500 past loss of consortium negligently ran over him

W aRD Johnson Verdict $6,000,000

$62,500 punitive damages Case Carl Ray McNeill v. Dwayne Alexander $129,000 actual damages Marshall, Marketing Associates, Inc. d/b/a $191,500 Applied Polymerics, Inc., No. 2:16-cv-191-PMD Dmande $100,000 Court U.S. District Court for the District of South Offer $5,000 (new money) Carolina, SC Judge Patrick M. Duffy I nsuRER(s) Allstate Insurance Co. for Knight De at 11/8/2017 Travelers Home and Marine Insurance Co. for Johnson (underinsured carrier) Plaintiff Attorney(s) Mark J. Bringardner, Joye Law Firm LLP, T rIAL DeTAILs Trial Length: 3 days North Charleston, SC Trial Deliberations: 2.5 hours Mark C. Joye, Joye Law Firm LLP, North Jury Composition: 12 jurors Charleston Plaintiff Defense Expert(s) Janice K. Holloway, life care planning, Attorney(s) David S. Cobb, Turner Padget Graham and Bluffton, SC Laney P.A. , Charleston, SC Frank K. Noojin, III, M.D., orthopedic Nickisha M. Woodward, Turner Padget surgery, Lexington, SC Graham and Laney P.A., Charleston, SC Defense Fact s & Allegations On Nov. 17, 2015, plaintiff Carl Expert(s) None reported McNeill, 45, a road safety inspector employed with South Pialost-Tr Plaintiffs’ post-trial motion for additur was Carolina Department of Transportation, was engaged in pending at the time of publication. inspecting a section of in South Carolina, which was being repaired. A truck driven by Dwayne E dITOR’s Note This report is based on information that Alexander Marshall struck McNeill and rolled over him. was provided by plaintiffs’ counsel and defense counsel for McNeill claimed multiple bodily injuries. Travelers Home & Marine Insurance Company. McNeill sued Marshall, alleging he was negligent in the operation of his vehicle. McNeill also sued Marketing –Margi Banner Associates, Inc. d/b/a Applied Polymerics, Inc., a contractor that was repairing potholes on South Carolina roadways at the time of the subject accident. Applied Polymerics owned the Ford pickup truck Marshall was driving and Marshall Checking up on an Expert? was engaged in the course and scope of his job at the time of the accident. According to McNeill, Marshall was backing his truck up Go to www.VerdictSearch.com a ramp as McNeill, who was overseeing repairs to I-526 near or call 1-800-832-1900 the Charleston International Airport, was bending over to inspect the road. McNeill argued that the truck struck him to find the cases they’ve handled. from behind and rolled over his lower torso. McNeill claimed Applied Polymerics was vicariously liable.

January 2018 www.verdictsearch.com 9 SOUTH CAROLINA VerdictSearch Carolina

Applied Polymerics conceded that its truck driver was MOTOR VEHICLE negligent in the operation of the vehicle and accepted liability. Tractor-Trailer — Rollover — Worker/Workplace Negligence The trial proceeded on the issue of McNeill’s claimed injuries and damages. Shifting cargo caused truck to I njuRIEs/Damages comminuted fracture; crush injury; crush injury, pelvis; debridement; fracture, femur; fracture, tip, plaintiff asserted ilium; fracture, pelvis; internal fixation; leg; open reduction; VERDICT $325,000 physical therapy; pins/rods/screws; plate; testicle McNeill was transported to a local emergency room with Case Bryan Bracy v. Hapag-Lloyd AG, Hapag- crush injuries to both legs. He also suffered a comminuted Lloyd USA, LLC, Haoag-Lloyd America fracture of the femoral shaft in his left leg; crushed and Inc., UPS Supply Chain Solutions Inc., UPS fractured left ilium of the pelvis; and crushed urethra and Supply Chain Solutions General Services scrotum. Inc., UPS SCS INdia PVT Ltd., UPS Asia McNeill was hospitalized for three weeks. He underwent Group PTE Ltd. and AKSH Technologies open reduction with internal fixation surgery with placement Limited, No. 2:14-cv-02728-DCN of a plate and screws to repair the femur fracture. He also Court U.S. District Court for the District of South underwent debridement to address scrotum and urethra Carolina, SC injuries and stabilization of the pelvic fracture. McNeill Judge David C. Norton underwent six weeks of rehabilitation and physical therapy. De at 10/5/2017 McNeill claimed he is in constant pain and that he has limitations performing activities of daily living. He was Plaintiff unable to return to work. Attorney(s) Jarrel L. Wigger (lead), Wigger Law Firm, McNeill sought damages for past and future medicals; past Inc., North Charleston, SC and future loss of earning capacity; and past and future pain Joshua T. Howle, Wigger Law Firm, Inc., and suffering. North Charleston, SC The defense argued that McNeill made a good recovery from surgery and that he was not permanently disabled. Defense Attorney(s) David M. Collins, Womble Carlyle Rltesu The jury found Applied Polymerics negligent and Sandridge & Rice, LLP, Charleston, SC determined that McNeill’s damages totaled $6 million. (Hapag-Lloyd AG, Haoag-Lloyd America Inc., Hapag-Lloyd USA, LLC) Dmande N/A Sean Houseal, Womble Carlyle Sandridge Offer $3.5 million & Rice, LLP, Charleston, SC (Hapag-Lloyd AG, Haoag-Lloyd America Inc., Hapag- I nsuRER(s) Liberty Mutual Insurance Co. for Lloyd USA, LLC) Marketing Associates (primary) David B. Marvel, Marvel Et Al., LLC, Navigators Group Inc. (The) for Marketing Charleston, SC (AKSH Technologies Associates (excess) Limited) James Adam Russell, Willson Jones Carter T rIAL DeTAILs Trial Length: 5 days & Baxley, P.A., Greenville, SC (UPS Asia Trial Deliberations: 3 hours Group PTE Ltd., UPS SCS India PVT Ltd., UPS Supply Chain Solutions General E dITOR’s Note This report is based on information that Services Inc., UPS Supply Chain Solutions was provided by plaintiff’s counsel. Defense counsel declined Inc.) to comment. William S. Sheldon, Willson Jones Carter & Baxley, P.A., Greenville, SC (UPS Asia –Gary Raynaldo Group PTE Ltd., UPS SCS India PVT Ltd., UPS Supply Chain Solutions General Services Inc., UPS Supply Chain Solutions Verdict Resources Inc.) Fact s & Allegations On Oct. 12, 2012, plaintiff Bryan Access our easy-to-use Bracy, 40s, a truck driver, was operating a tractor-trailer verdict and settlement database. that tipped over while making a left turn onto Centre Park in Winston-Salem, NC. At the time this accident www.verdictsearch.com occurred, Bracy’s tractor-trailer was hauling a shipping

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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 VerdictSearch Carolina SOUTH CAROLINA container of fiber optic cable to the Corning Winston Cable About three weeks after the accident, Bracy underwent Plant at 3180 Centre Park Blvd. Bracy claimed that the load an MRI of his right hand, which revealed the metacarpal of fiber optic cable shifted inside the container as he made fracture, and an MRI of the right shoulder that revealed his left turn, causing his truck to tip over. Bracy claimed he the labrum tear. Bracy’s hand injury had already begun to suffered shoulder, hand, neck and back injuries. heal and was not treated. He underwent epidural injections Bracy sued India-based company AKSH Technologies to the neck and lower back and was prescribed medication Limited (AKSH), the company that sold the fiber optic for his shoulder pain. He also attempted a course of physical cable and had loaded it into the containers for shipment therapy, but the treatment was unsuccessful. to the United States. At the time of the accident, Bracy In March 2013, Bracy underwent surgery to address his was transporting one of these containers from the Port of shoulder injuries. The surgery consisted of an arthroscopic Charleston in Charleston, SC, to the Corning Winston Cable repair of the labrum and an open reduction and internal Plant. fixation of the clavicle. Bracy also sued shipping companies Haoag-Lloyd America Bracy underwent about two months of post-surgical Inc. and UPS Supply Chain Solutions Inc., as well as multiple physical therapy. The treatment was typically rendered three subsidiaries of each. These parties agreed to confidential times per week, diminishing to once per week by the end of settlements with Bracy prior to trial. The matter proceeded the therapy. to trial against AKSH. Bracy claimed that he continues to suffer from weakness Bracy alleged that AKSH negligently and improperly and pain in his right shoulder and soreness in his lower back. packed the subject container by failing to brace and secure He claimed the injuries hindered his ability to exercise and the load of fiber optic cable and failing to fill the excess space perform other physical activities. He also claimed he missed in the container with dunnage, which is material used to keep about eight months of work. cargo in position in a container. As a result, Bracy’s counsel Bracy’s treating pain management doctor testified that argued that the cause of the accident was weight shifting Bracy’s neck and back injuries were causally related to the within the container as the left turn was executed. subject accident, the injections he underwent were necessary Bracy’s shipping and cargo expert testified that AKSH and Bracy will continue to suffer from limitations in his neck failed to follow international guidelines for packaging and back. containers by failing to block and brace the cargo in the Bracy’s orthopedic surgery expert testified that the shoulder subject shipping container. and hand injuries were causally related to the subject accident The responding police officer, who was also an accident and that Bracy’s shoulder injuries were permanent in nature. reconstructionist, testified that Bracy was driving at a slow Bracy sought an unspecified amount in damages for his rate of speed when the accident occurred and that the shifting past and future pain and suffering, past and future loss cargo load caused his truck to tip. of enjoyment of life, permanent impairment, past medical A shipping/receiving employee at Corning testified that expenses totaling approximately $70,000 and past lost he saw the subject cargo load and that it was not properly wages. loaded and secured. Defense counsel contended that Bracy’s claimed medical The defense contended that the accident was caused by expenses were unreasonably high. Bracy’s own negligence. A defense mechanical engineering and accident Rltesu The jury found that AKSH Technologies was solely reconstruction expert testified that Bracy was traveling too liable for the accident and that Bracy was not contributorily fast when he attempted to make his left turn, which caused negligent. The jury awarded Bracy compensatory damages the accident. totaling $325,000.

I njuRIEs/Damages arthroscopy; back and neck; epidural Dmande $500,000 injections; fracture, clavicle; fracture, metacarpal; hand; Offer $150,000 internal fixation; labrum, tear; lower back; neck; open reduction; physical therapy; shoulder; soft tissue; sprain, Plaintiff Expert(s) Shailesh M. Patel, M.D., pain management, cervical; sprain, lumbar; strain, cervical; strain, lumbar; North Charleston, SC (treating doctor) strains and sprains Sgt. Rhoneek Readus, accident Bracy was placed in an ambulance and transported to the reconstruction, Winston-Salem, NC emergency room at Bowman Gray Hospital, where he was Barry Rope, cargo/shipping industry, diagnosed with a fractured clavicle in his dominant right Farmington Hills, MI shoulder. He received treatment and was released. Bracy Shane K. Woolf, M.D., orthopedic surgery, ultimately claimed that, along with a fractured right clavicle, Charleston, SC (treating doctor) he suffered a fracture to the metacarpal bone below the fifth digit of his dominant right hand, a tear of the labrum in his right shoulder and sprains and strains of the soft tissue in his neck and back.

January 2018 www.verdictsearch.com 11 SOUTH CAROLINA VerdictSearch Carolina

Defense Fact s & Allegations On April 13, 2010, plaintiff Expert(s) Brian M. Boggess, M.S., P.E., forensic John William Machin, 36, a utility worker for the town engineering, Charlotte, NC of Lexington, was injured at his workplace when he inhaled a substantial amount of mist from a wastewater E dITOR’s Note This report is based on information that deodorizer. As a result of the accident, he suffered reactive was provided by plaintiff’s counsel and counsel for AKSH airways syndrome, known as chemically-induced asthma Technologies Limited. None of the other defense attorneys or obstructive lung disease, which he claimed permanently were asked contribute to the report. disabled him. The deodorizer, Totalox, was manufactured by Carus –Jack Deming Corporation, an international company. Totalox was primarily used for environmental applications, including as a wastewater deodorant. Totalox had its own Material WORKER/WORKPLACE NEGLIGENCE Safety Data Sheet (MSDS), which allegedly communicated Negligent Hiring — Negligent Training — Negligent Supervision to users the applicable hazards, warnings, recommended personal protective equipment and product information. The Chemical manufacturer denied Andersons f/k/a Golden Eagle Products was involved in the manufacturing process with Carus. liability for respiratory illness Beginning in 2003, the town of Lexington contracted with Carus to provide the deodorizer for its wastewater Verdict Defense system. The chemicals were delivered by trucks in 275-gallon portable totes. Those totes were allegedly labeled with Case John W. Machin v. Fetter and Son Farms, warnings to avoid breathing a mist of the product and LLC, Carus Corporation, Terry J. Weiser recommended the use of a respirator at the lift stations where and The Andersons f/k/a Golden Eagle the chemicals were delivered. Products, No. 12-cv-02675 The community grew over the years and the demand for an Court U.S. District Court for the District of South increase in the amount of deodorizer grew, requiring a larger Carolina, SC on-site container system at the lift stations. In 2009, a large Judge Joseph F. Anderson volume tank was installed to hold the Totalox. Also, PVC De at 9/28/2017 pipes and fittings were installed to tie together 15 portable totes containing the Totalox. The chemical was delivered by Plaintiff tanker trucks directly to the lift stations. The tanker operator Attorney(s) Frederick I. Hall, III, The Rick Hall Law would attach a line to the tote configuration, the chemical Firm, Lexington, SC would offload and town employees would close the valve John K. Koon, Koon, Cook & Walters, on each tote as it filled. Employees would continue closing LLC, Columbia, SC valves until all 15 totes were filled or the tanker was empty. John Shannon Nichols, Bluestein, Nichols Either Carus or The Andersons delivered the chemical by Thompson & Delgato, Columbia, SC tanker truck. On some occasions, The Andersons would use third-party carriers to transport loads of the chemical to Defense Carus customers. Attorney(s) Gray T. Culbreath, Gallivan, White & On April 13, 2010, the delivery of Totalox was made Boyd, Columbia, SC (Carus) one day earlier than regularly scheduled. The Andersons John Arthur Davison, Fulcher Hagler Reed retained a third-party carrier, Fetter and Son Farms, LLC, Hanks & Harper, Augusta, GA (Carus) to transport the chemical. The town employee usually on site Sonja R. Tate, Fulcher Hagler Reed Hanks for Totalox deliveries was ill and another employee familiar & Harper, Augusta, GA (Carus) with the process was on vacation. As a result, Machin was Jessica Ann Waller, Fulcher Hagler Reed assigned by the utility department to attend to the delivery Hanks & Harper, Columbia, SC (Carus) and offloading. Terry Weiser, the driver for Fetter and Mark S. Barrow, Sweeny, Wingate & Son Farms, LLC, arrived at the lift station and began the Barrow, PA, Columbia, SC (The Andersons) offloading. Machin was joined at the lift station by three Janet Brooks Holmes, McKay Cauthen more town employees. Settana & Stubley, PA, Columbia, SC (Fetter Machin and his co-workers moved among the totes to and Son Farms, LLC, Terry J. Weiser) close valves as the system filled. Machin was not wearing a Ryan C. Holt, Sweeny, Wingate & Barrow, respirator during the offloading process. After the totes had PA, Columbia, SC (The Andersons) filled, Machin cleared his line with a charge of air. Under Daniel R. Settana, Jr., McKay Cauthen pressure, one or more of the tote valves broke and a significant Settana & Stubley, PA, Columbia, SC (Fetter amount of Totalox mist was released into the air. Machin was and Son Farms, LLC, Terry J. Weiser)

12 www.verdictsearch.com January 2018 VerdictSearch Carolina SOUTH CAROLINA exposed to a significant amount of the chemical and suffered employer for an injury sustained on the job, may the jury chemically-induced asthma or obstructive lung disease. hear an explanation of why the employer is not part of the Machin filed a workers’ compensation claim against his instant action? Second, when a plaintiff seeks recovery from employer, the town of Lexington, and reportedly received a a person other than his employer for an injury sustained on modest award. He then filed suit against Carus, Fetter and the job, may a defendant argue the empty chair defense and Son Farms, Weiser and The Andersons, claiming negligence. suggest that plaintiff’s employer is the wrongdoer? Third, Fetter and Son Farms and Weiser settled with Machin for in connection with Question 2, if a defendant retains the a confidential amount on Feb. 6, 2013. The Andersons were right to argue the empty chair defense against a plaintiff’s subsequently voluntarily dismissed from the case, which employer, may a court instruct the jury that an employer’s proceeded against Carus only. legal responsibility has been determined by another forum, Machin alleged that Carus failed to hire a trained and specifically, the state’s workers’ compensation commission? competent trucking company to deliver the Totalox in a safe Fourth, when a plaintiff seeks recovery from a person other and effective manner and failed to provide adequate training than his employer for an injury sustained on the job, may the to the trucking company and its drivers who delivered the court allow the jury to apportion fault against the nonparty chemical so as to avoid a catastrophic discharge of toxic employer by placing the name of the employer on the verdict chemicals which would endanger employees who might form? The South Carolina Supreme Court answered these be working with the chemical and proximate thereto. He questions in the abstract without any suggestion as to the also asserted that Carus failed to take proper precaution to resolution of the post-trial motion before the federal court. ensure that the drivers delivering the chemical had adequate Questions 1, 2, and 3 were answered in the affirmative, safety systems in place to prevent the catastrophic discharge provided that a defense seeks to assign fault to the plaintiff’s of a toxic chemical and failed to ensure that the agents and employer, but the court answered “no” to Question 4. The servants delivering the chemical had adequate engineering case was then remanded for retrial. controls and administrative controls in place and to ensure that those persons who might be potentially exposed to the I njuRIEs/Damages asthma; respiratory; restrictive lung toxic chemical compounds in Totalox were wearing personal disease protective equipment and/or respiratory equipment so as to Machin suffered exposure to Totalox mist, which resulted prevent a toxic chemical exposure during the delivery of the in reactive airways syndrome, known as chemically-induced chemicals. Further, Machin alleged that Carus was negligent asthma or obstructive lung disease. Machin claimed he was in allowing its agents or servants who were not properly totally disabled by his injury. trained to discharge air into a container system which was Machin sought $1 million in future lost wages and $1.3 not properly protected or shut off prior to discharging air million in future medicals in a life care plan. He also sought through the delivery hose or lines for cleaning purposes damages for pain and suffering. and failing to adopt sufficient written safety guidelines Carus denied negligence and contended that no damages and procedures identifying the hazards associated with were due or owing. Totalox and to disseminate those guidelines to those persons Rltesu The jury attributed 45-percent liability to Carus and companies who were hired to deliver the chemicals it Corporation and 55-percent liability to Machin. As a result, manufactures and sells. a defense verdict was entered. Carus contended that the negligence of the town of Lexington in using an inadequate system to store and offload T rIAL DeTAILs Trial Length: 1 week the Totalox was the sole cause of Machin’s injury. Further, Trial Deliberations: 1 day Carus asserted that the town failed to inform Machin of the Jury Composition: 8 jurors hazards of offloading and failed to provide MSDS-based training regarding safe handling of the product, in violation Pialost-Tr There was no appeal and the case is closed. of OSHA codes. Carus also argued that the town was a sophisticated user of the product. E dITOR’s Note This report is based on information that The case was initially tried in 2015 and resulted in a was provided by plaintiff’s counsel. Defense counsel did not defense verdict. It was during this trial that The Andersons respond to a request for comment. was dismissed from the case. –Margi Banner Machin appealed the defense verdict based on the court’s denial to allow the workers’ compensation information to go to the jury and in allowing an “empty chair” defense, placing the responsibility for Machin’s injury on the town. The VerdictSearch Solution The South Carolina Supreme Court accepted four certified Case-Winning Intelligence questions from the United States District Court for the on the Web, on the Phone and in Print District of South Carolina. First, under South Carolina law, when a plaintiff seeks recovery from a person other than his www.verdictsearch.com

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Attorneys Montgomery, John Michael ...... 6 Mecklenburg County ...... 5

Nichols, John Shannon ...... 12 Barrow, Mark S...... 12 Richland County ...... 8 Carolina

Palmer, W. Scott ...... 7 editor in chief Bayne, Brett H...... 8 Glenn Koch Experts senior Editor Peake, Charnell Glenn ...... 8 Carol Scott Bringardner, Mark J...... 9 Assignment EditorS Rodriguez, Susan C...... 5 Calvin Brice, Philippe Dupre, Ryan Kasemeyer Brown, Robert Lesley ...... 8 ACCIDENT RECONSTRUCTION reporters Margi Banner, Jill Fowler, Carol Meirow, Russell, James Adam ...... 10 Amy Oliva, Jennifer Willhoite Cobb, David S...... 9 Readus, Sgt. Rhoneek ...... 11 D irector-Operations, Russo, Robert Anthony ...... 8 Database & Web Administration Collins, David M...... 10 Robert Benjamin Settana, Daniel R. Jr...... 12 Sales Director AUTOMOTIVE VALUATION James Gault Crudup, Jeffrey M...... 6 Graphic Designers Sheldon, William S...... 10 WNS Global Services Walkowiak, Billy ...... 5 Culbreath, Gray T...... 12 Tate, Sonja R...... 12 VerdictSearch Carolina 120 Broadway, 5th Floor, New York, NY 10271 (800) 832-1900 Davison, John Arthur ...... 12 CARGO/SHIPPING INDUSTRY VerdictSearch Carolina © 2017 Waller, Jessica Ann ...... 12 ALM Media Properties, LLC. All rights reserved. Annual subscription rate is $425. Delaney, John Andrew ...... 8 For subscription inquiries, call 1-800-832-1900 Wigger, Jarrel L...... 10 Rope, Barry ...... 11 For advertising & reprint inquires, call 1-866-546-0564 or email [email protected] Drayton, Amy C...... 5 To report a verdict or settlement, go to: Woodward, Nickisha M...... 9 www.VerdictSearch.com FORENSIC ENGINEERING Driggers, Johnny F...... 6

Cases Brian M. Boggess, M.S., P.E...... 12 120 Broadway, 5th Floor • New York, NY 10271-1101 Ferri, Michael J...... 6 Bill Carter, President/CEO Bracy v. Hapag-Lloyd AG ...... 10 Hall, Frederick I. III ...... 12 Lenny Izzo, President/Legal Media LIFE CARE PLANNING David Saabye Chief Digital Officer Coleman v. Bigoney ...... 6 Holmes, Janet Brooks ...... 12 Molly Miller Chief Content Officer Holloway, Janice K...... 9 Dana Rosen, SVP/General Counsel Foster v S and Sons Automotive Inc. . . 5 Holmes, J. Kevin ...... 6 Erin Dziekan Vice President Human Resources

Johnson v. Knight, Jr...... 8 ORTHOPEDIC SURGERY Holt, Ryan C...... 12 No portion of this publication including copying may be reproduced without prior written consent of the Publisher. You may obtain Leland v. Ballzigler ...... 6 consent by contacting VerdictSearch at 1-800-832-1900. Noojin, Frank K. III, M.D...... 9 Houseal, Sean ...... 10 VerdictSearch is a registered trademark of ALM Media Properties, LLC. Copyright © 2017. All Rights Reserved. Machin v. Fetter and Son Farms, LLC . 12 Howle, Joshua T...... 10 Woolf, Shane K. M.D...... 11 McNeill v. Marshall ...... 9 Joye, Mark C...... 9 Sanchez v. Oberle ...... 7 PAIN MANAGEMENT Kern, Brian James ...... 7 Patel, Shailesh M. M.D...... 11 Koon, John K...... 12 Courts

Krysak, Abbey ...... 5 Charleston County ...... 6 PHYSICAL MEDICINE

Marvel, David B...... 10 Federal ...... 9 Forrest, Leonard M.D...... 8

16 www.verdictsearch.com January 2018 VerdictSearch Carolina Index

Injuries herniated disc, cervical ...... 7 strains and sprains ...... 11 Topics

herniated disc, lumbar ...... 7 testicle ...... 10 abdomen ...... 7 Alcohol involvement ...... 6

internal fixation ...... 10,11 aggravation of pre-existing condition . . 8 Insurers Breach of contract ...... 5 labrum, tear ...... 11 arthroscopy ...... 11 Deceptive trade practices ...... 5 Allstate Insurance Co...... 9 leg ...... 10 asthma ...... 13 Intersection ...... 8 Liberty Mutual Insurance Co...... 10 loss of consortium ...... 8 back ...... 8 Navigators Group Inc. (The) . . . . . 10 Motor vehicle ...... 6,7,8,9,10 lower back ...... 11 back and neck ...... 11 Permanent General ...... 7 Multiple impact ...... 6,7 chiropractic ...... 7 neck ...... 7,11 Progressive Casualty Insurance Co. . . . 7 Multiple vehicle ...... 6,7 comminuted fracture ...... 10 open reduction ...... 10,11 State Farm Insurance Cos...... 6,7 Negligent hiring ...... 12 crush injury ...... 10 physical therapy ...... 7,10,11 Travelers Home and Negligent repair ...... 5 crush injury, pelvis ...... 10 pins/rods/screws ...... 10 Marine Insurance Co...... 9 Negligent supervision ...... 12 debridement ...... 10 plate ...... 10 Negligent training ...... 12 decreased range of motion ...... 8 respiratory ...... 13 Judges/Neutrals Parked car ...... 6 epidural injections ...... 11 restrictive lung disease ...... 13 Anderson, Joseph F...... 12 Pedestrian ...... 9 fracture, clavicle ...... 8,11 shoulder ...... 7,11 Duffy, Patrick M...... 9

Rear-ender ...... 6,7 fracture, femur ...... 10 soft tissue ...... 7,11 Garis, Jeffrey I...... 5

Reversing vehicle ...... 9 fracture, ilium ...... 10 sprain, cervical ...... 11 Hughston, Thomas L...... 6 fracture, metacarpal ...... 11 sprain, lumbar ...... 11 Lee, Alison R...... 7 Rollover ...... 8,10 fracture, pelvis ...... 10 steroid injection ...... 7 Manning, L. Casey ...... 8 Stop sign ...... 8 fracture, shoulder ...... 8 strain, cervical ...... 11 Nicholson, J.C. Jr...... 6 Tractor-trailer ...... 10 hand ...... 11 strain, lumbar ...... 11 Norton, David C...... 10 Worker/workplace negligence .5,9,10,12

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.

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NEW YORK disc at L4-5; herniated disc at L5-S1; hypertrophy; knee surgery; cervical region, that Murray’s lumbar injuries were degenerative KINGS COUNTY lateral meniscus, tear; leg; physical therapy; shoulder; tendinitis/ conditions that predated the accident, and that Murray can resume tendinosis work. Defense counsel claimed that Murray underwent chiropractic Murray completed his workday without having sought medical treatment after a 1993 motor-vehicle accident that was the subject CONSTRUCTION attention. After three days had passed, he presented to a doctor. He of a prior personal-injury lawsuit filed by Murray. Labor Law — Workplace — Workplace Safety — Slips, Trips & Falls claimed that his back, his left leg, his left shoulder and his neck were painful. He was referred for further evaluation. RESULT The parties negotiated a pretrial settlement. Bonland Murray ultimately claimed that he sustained a tear of his left knee’s Industries’ insurer agreed to pay $7.4 million. Worker claimed rooftop fall caused injuries lateral meniscus, herniations of his L4-5 and L5-S1 intervertebral discs, and trauma that produced a protrusion of his C5-6 disc. He INSURER(S) Selective Insurance Group Inc. for Bonland of spine, kneeas published in further claimed that his left shoulder sustained trauma that led Industries to hypertrophy of the shoulder’s acromioclavicular joint. He also SETTLEMENT $7,400,000 air-conditioning unit that was located on a building’s roof. While claimed that the shoulder developed tendinosis. He claimed that PLAINTIFF he was attempting to remove a panel that was affixed to the unit, he later developed pain that radiated to his left leg, from his back. EXPERT(S) Kristin K. Kucsma, M.A., economics, Livingston, CASE Kenden A. Murray v. 502-12 86th Street LLC; The he fell off of a steel beam that was situated some three feet above Murray’s treatment began with physical therapy. The treatment NJ (did not testify) February 6, 2017 TJX Companies Inc. d/b/a T.J. Maxx; Schimenti the roof’s surface. Murray landed on the roof, and he claimed that was typically rendered three times a week. The treatment is ongoing, Edwin F. Richter, M.D., physical medicine, Construction Co.; Schmenti Construction Co. Inc.; he sustained injuries of his back, a knee, his neck and a shoulder. though its frequency has decreased to weekly intervals. Stamford, CT (did not testify) & Pioneer General Construction Co. LLC, No. Murray sued the premises’ owner, 502/12 86th Street LLC; the On Oct. 6, 2011, Murray underwent arthroscopic surgery that Douglas C. Schottenstein, M.D., neurology, New California 13691/11 premises’ tenant, TJX Cos. Inc.; the construction project’s general addressed his left shoulder. On March 8, 2012, he underwent York, NY (treating doctor; did not testify) los angeles county COURT Kings Supreme contractor, Schimenti Construction Co. LLC; and another one of arthroscopic surgery that addressed his left knee. He subsequently Rohit B. Verma, M.D., orthopedic surgery, Great DATE 3/13/2016 the project’s contractors, Pioneer General Construction Co., LLC. underwent administration of two epidural injections of steroid- Neck, NY (treating doctor; did not testify) corPorations Murray alleged that the defendants violated the New York State based painkillers. In September 2013, he underwent a pair Officers’ and Directors’ Liability — Insurance — Coverage — Contracts PLAINTIFF Labor Law. of surgeries that involved fusion of the anterior and posterior DEFENSE ATTORNEY(S) Stephen J. Murphy, Block, O’Toole & Murphy, Schimenti Construction and TJX impleaded Murray’s employer, regions of his spine’s L5-S1 level. On Feb. 16, 2016, he underwent EXPERT(S) Peter D. Capotosto, M.S., C.R.C., vocational LLP, New York, NY Bonland Industries Inc. Schimenti Construction and TJX alleged implantation of a device that provided pain-relieving stimulation of rehabilitation, Rochester, NY (did not testify) Defendant broke promise to have Davidadequate L. Scher, Block, O’Toole & Murphy, LLP, that Bonland Industries controlled and directed Murray’s work his spine. Murray claimed that the device produced minimal relief. Richard Lechtenberg, M.D., New York, NY functions. They sought contractual indemnification. Murray further claimed that he suffers residual pain, that he neurology, Brooklyn, NY (did not insurance: plaintiff Pioneer General Construction did not answer the summons, and suffers a residual diminution of his back’s range of motion, that testify) DEFENSE Murray’s counsel did not pursue the claim against it. The matter he suffers a residual diminution of his left knee’s range of motion, Jane D. Mattson, Ph.D., life-care planning, Decision $442,795 litigation, ATTORNEY(S)the case went Mark to J.the Dolan Court, Napierski, of Appeal VanDenburgh, before proceeded against the remaining defendants. that he suffers a residual diminution of his left shoulder’s range Norwalk, CT (did not testify) Taylor could stop payingNapierski attorney & fees.O’Connor, L.L.P., Albany, NY Murray claimed that the air-conditioning unit’s panel could of motion, and that he suffers a residual diminution of his neck’s Jeffrey Passick, M.D., orthopedic surgery, case Tucker Taylor v. Llewellyn Werner, Taylor sued Werner, alleging(502/12 86thbreach Street of LLC,contract. TJX Cos.) not have been accessed without standing on the beam, which was range of motion. He also claimed that his residual effects prevent Brooklyn, NY (did not testify) No. SC121454 Taylor claimed that heWilliam agreed C. toLamboley serve on, Fabiani the board Cohen of & Hall, slightly less than 6 inches wide. Murray’s counsel contended that the his resumption of work. Sondra J. Pfeffer, M.D., radiology, court Superior Court of Los Angeles County, directors on the conditionLLP that, New he York, would NY have (Schimenti no financial Construction Co. incident stemmed from an elevation-related hazard, as defined by Murray sought recovery of past and future medical expenses, past New York, NY (did not testify) Santa Monica exposure and that theLLC) company would have adequate Labor Law § 240(1), and that Murray was not provided the proper, and future lost earnings, and damages for past and future pain and Jeffrey M. Spivak, M.D., spinal surgery, New JuDge Nancy L. Newman D&O liability insurance,Karen which A. Ondrovic would, Boeggeman,indemnify George him & Corde, safe equipment that is a requirement of the statute. suffering. York, NY (did not testify) Date 10/27/2016 from losses or advancementP.C., ofWhite defense Plains, costs NY in(Bonland the event Industries of Inc.) Murray’s counsel moved for summary judgment of liability. The Defense counsel contended that Murray did not sustain a a legal action for allegedNone wrongful reported acts (Pioneer while Generalhe was actingConstruction Co., motion was unopposed and granted. The third-party claim was also significant injury, given that Murray worked during the aftermath EDITOR’S NOTE This report is based on information that was pro- Plaintiff in his capacity as a director and officer. Taylor further LLC) decided via summary judgment. Bonland Industries was obligated to of the accident and that three days passed before Murray sought vided by plaintiff’s counsel. Pioneer General Construction’s counsel attorney(s) Dale E. Motley, Ogden & Motley, claimed that Werner agreed to those conditions, but failed indemnify Schimenti Construction and TJX. The matter proceeded medical attention. The defense’s expert orthopedist submitted a was not asked to contribute, and the remaining defendants’ counsel Los Angeles, CA to ensure the company had adequate insurance. FACTS & ALLEGATIONS On April 29, 2011, plaintiff Kenden to damages. report in which he opined that Murray exaggerated his symptoms. did not respond to the reporter’s phone calls. Plaintiff’s counsel argued that Werner breached an Murray, 38, a union-affiliated installer of sheet metal, worked The defense’s expert spinal surgeon submitted a report in which Defense oral agreement, which provided that if Taylor served attorney(s) Llewellyn Werner, pro se on the board,at a construction then Taylor site would that was not located have atany 502 financial 86th St., in the Bay INJURIES/DAMAGES arthroscopy; decreased range of motion; disc he opined that Murray did not sustain a traumatic injury of the –Jack Deming exposure Ridgeand thatsection the of Brooklyn.company Murraywould was have modifying adequate a commercial protrusion, cervical; epidural injections; fusion, lumbar; herniated facts & allegations In 2010, plaintiff Tucker Taylor D&O insurance. WWW.VERDICTSEARCH.COM

began serving on the board of directors of a company with Werner, who appeared pro se, denied ever making any 120 Broadway, 5th Floor, New york, Ny 10271 • 1.877.257.3382 • www.almrepriNts.com • © 2017 alm media properties, llc. all rights reserved. Further duplicatioN without permissioN is prohiBited. #061-07-17-03 which Llewellyn Werner was involved. such agreement with Taylor. Werner previously requested that Taylor serve on the board, and Taylor allegedly agreed under certain inJuries/Damages Taylor incurred attorney fees as a conditions. As a result, Taylor served on the board from result of defending himself in the 2012 lawsuit against the 2010 to 2012. company where he served on the board. Thus, he sought In 2012, Taylor was sued based on his position as a member recovery of the attorney fees he incurred in defending of the board. The suit was bought by a limited liability himself. company that was owned by the former Chief Executive Officer of the company. The former CEO allegedly owned result Judge Nancy Newman found that Werner breached more than 10 percent interest in the company that involved the contract he had with Taylor. She also determined that both Taylor and Werner. When Tucker tendered the claim Taylor’s damages totaled $442,794.70. for defense, he learned that the company’s directors and officers liability insurance policy contained an exclusion for eDitor’s note This report is based on information that claims brought by 10-percent shareholders. was provided by plaintiff’s counsel. Llewellyn Werner was Although the insurer defended under a reservation of not asked to contribute. rights, Taylor was forced to defend himself and incur attorney fees. Although Taylor ultimately prevailed in the –Priya Idiculla www.verD ictsearch.com 14” x 21”* 120 Broadway, 5th Floor, New york, Ny 10271 • 1.877.257.3382 • www.almrepriNts.com • © 2017 alm media properties, llc. all rights reserved. Further duplicatioN without permissioN is prohiBited. #061-04-17-10

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