Middlesex County Jury Awards $7.35 Million to the Family of a Jersey City Laborer Paralyzed by a Falling Ladder and Left Brain-Damaged by Delayed Intubation
After trial: The Appellate Division affirmed the verdict and judgment on August 10, 2015 (442 N.J. Super. 80). The remand concerned only fault allocation to the decedent's employer for indemnification between defendants and could not reduce the plaintiffs' recovery. The trial court had ruled that Hugo Neu's insurers, American Home and Crum & Forster, must pay the judgment against Hugo Neu. Femco settled with the family shortly before the appellate decision and the family settled with Dr. Schrader, Liberty Surgical, and Jersey City Medical Center while the appeals were pending; the settlement amounts were not disclosed in the opinion.
Jack D'Avila, a concrete laborer on a scrap-metal shredder installation in Jersey City, was struck on the head by an unsecured 20-foot extension ladder on May 18, 2005, fractured his cervical spine, and two days later suffered an anoxic brain injury when his ICU surgeon did not intubate him before he went into respiratory distress. He spent three years on a ventilator and died in July 2008. After a four-month trial in Middlesex County, a jury found the site owner Hugo Neu, the installer Femco Machine Company, and trauma surgeon Patricia Schrader liable and awarded his estate, widow, and two children $7,346,363, entered as an $8.54 million judgment with interest. The Appellate Division affirmed the verdict and judgment in a published 2015 opinion, remanding only indemnification questions among the defendants.
What happened
On May 18, 2005, Jack D'Avila was working in a shallow trench at the Hugo Neu scrap-metal recycling yard on the Hudson River in Jersey City. He was a laborer for Simpson & Brown, the concrete subcontractor pouring foundations for a 700-foot "mega shredder" that Hugo Neu, acting as its own general contractor, had hired Femco Machine Company to assemble and install. A 20-foot extension ladder had been left leaning against the taller concrete motor base beside the trench, tied at the bottom but not at the top. At about 3:45 p.m. the ladder slid off and came down on D'Avila's head.
At Jersey City Medical Center the damage became clear: fractures at C2 and C7, and bruising, swelling, and a bulging disc at C3-C4 that were compressing his spinal cord. By the time a neurosurgeon saw him he could not move his right hand or leg. The surgeon removed the disc and plated the spine at C3-C4, and D'Avila went to the surgical intensive care unit under trauma surgeon Patricia Schrader.
Over the next two days his paralysis progressed toward incomplete quadriplegia. On morning rounds on May 20 his nurse showed Dr. Schrader that he was having trouble swallowing. Dr. Schrader ordered him kept off food and liquids and asked for a swallowing evaluation, but did not intubate him, reasoning that he was breathing on his own and had a good cough. About forty minutes after rounds, at 9:55 a.m., he went into respiratory distress. Suctioning did not clear his airway. When Dr. Schrader returned his oxygen saturation had fallen to 31 percent and his heart rate to 45. A nurse anesthetist intubated him at 10:05 a.m., but five to seven minutes of oxygen deprivation had already caused an anoxic brain injury.
D'Avila never left institutional care. He remained on a ventilator for all but one week of the rest of his life, and in July 2008, at age 51, his family chose to discontinue it after a downturn. His son, then his guardian, and his wife Denise Rocha had filed suit in March 2007 in Middlesex County against Hugo Neu, Femco, the medical center, Dr. Schrader, her practice Liberty Surgical Associates, and three ICU nurses, pleading construction negligence, medical malpractice, wrongful death, and loss of consortium. Michael B. Zerres of Blume, Donnelly, Fried, Forte, Zerres & Molinari represented the estate and the family.
The case was tried over nearly forty court days between October 2011 and January 2012. The jury found Hugo Neu and Femco negligent and allocated the job-site fault 75 percent to Femco and 25 percent to Hugo Neu. It found Dr. Schrader and two nurses negligent, but that only Dr. Schrader's negligence was a substantial factor in the outcome, and that 77 percent of D'Avila's ultimate injury would have happened even with proper care, leaving her responsible for 23 percent. As molded by the court, Femco bore 57.75 percent of the judgment, Hugo Neu 19.25 percent, and Dr. Schrader 23 percent.
The damages came to $7,346,363: $2,249,668 in medical expenses, $152,196 in lost income, and $3,800,000 for D'Avila's pain, suffering, disability, and loss of enjoyment of life, plus $50,000 to his widow for loss of consortium, $54,397 in her past losses and $334,150 in future losses, and $49,417 in past losses and $303,559 in future losses to each of his two children. With prejudgment interest and costs the judgment, as amended on June 11, 2012, was $8,535,956.27: $4,929,514.75 against Femco, $1,643,171.58 against Hugo Neu, and $1,963,269.94 jointly against Dr. Schrader, Liberty Surgical, and the medical center.
Femco, the employer Simpson & Brown, and two of Hugo Neu's insurers appealed. On August 10, 2015, the Appellate Division, in a published opinion by Judge Sabatino, affirmed the verdict and the final judgment, rejected Femco's demand for a new trial, and remanded only the question of whether the employer's share of fault needed to be determined for the contractual indemnification claims among the defendants, expressly holding that any such proceeding "shall not disturb the verdict already obtained by plaintiffs." By then Femco had settled with the family, and the family had also settled with Dr. Schrader, Liberty Surgical, and the medical center after the appeals were filed.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Estate of D'Avila v. Hugo Neu Schnitzer East, 442 N.J. Super. 80 (App. Div. Aug. 10, 2015), Docket Nos. A-4439-11, A-4705-11, A-4713-11: counsel block naming Michael B. Zerres of Blume, Donnelly, Fried, Forte, Zerres & Molinari for the estate; accident date, place and mechanism; spinal fractures, discectomy, May 20, 2005 respiratory arrest, 31 percent oxygen saturation and anoxic brain injury; death in July 2008 at 51; trial October 2011 to January 2012 in Middlesex County; fault allocations; itemized damages totaling $7,346,363; judgment of $8,534,726.27 amended to $8,535,956.27; disposition affirming the verdict and judgment; Femco and medical-defendant settlements
- 2.vLex report of Estate of D'Avila v. Hugo Neu Schnitzer East (2015): confirms the caption, docket numbers, decision date, and that the verdict was affirmed
- 3.Blume Forte Fried Zerres & Molinari, P.C. (firm)
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