Essex County Jury Finds Kessler Institute 96% at Fault, Awards $28.6 Million to Patient Paralyzed During a Wheelchair Transfer
After trial: A confidential high-low agreement signed during trial capped the amount actually recovered.
An Essex County jury awarded Sandra Szell $28.6 million after Kessler Institute aides mishandled a toilet-to-wheelchair transfer that fractured her spine and left her paralyzed from the chest down, though a confidential high-low agreement capped her actual recovery.
What happened
Sandra Szell entered the Kessler Institute for Rehabilitation on January 22, 2015. She had just come through back surgery for spinal stenosis, scoliosis, and other spine problems, and Kessler was where she was supposed to rebuild her strength.
Two days later, on January 24, rehabilitation aides were moving her from a toilet to her wheelchair. The transfer went wrong. Szell heard a snapping sound as she was moved. A CT scan afterward showed a new injury: a fracture dislocation of her thoracic spine. The operation she had come to recover from had left her spine vulnerable, and the botched transfer broke it. She was paralyzed from the chest down.
Szell sued Kessler in the Superior Court of New Jersey in Essex County, along with the three rehabilitation assistants involved in the transfer: Agnes Blaszcyk, Laura Priester, and Ronald Thomas. The suit alleged that all three deviated from accepted standards of care in how they carried out the move. Carol Forte of Blume Forte Fried Zerres and Molinari tried the case for Szell, with Connor Turpan as second chair. Paul Daly of Hardin, Kundla, McKeon and Poletto defended.
By the time the case reached trial in early 2019, Szell was 72 and living in Florida, unable to make the trip to Newark. She testified by Skype.
In March 2019, after a trial before Judge Robert Gardner, the jury returned a $28.6 million verdict. It assigned 96 percent of the fault to Kessler itself, 2 percent to Blaszcyk, and 2 percent to Thomas. Priester, the third aide, was found not to have deviated from the standard of care. The award consisted of $25 million for pain, suffering, and loss of enjoyment of life, $3 million for future medical care, $400,000 for past and future family care, and $200,000 in out-of-pocket expenses.
Szell will not collect the full amount. During the trial, the parties signed a high-low agreement, a private contract that guarantees the plaintiff a minimum payment while capping the maximum no matter what the jury awards. The verdict came in above the cap, so her actual recovery is the capped figure, and that figure has not been disclosed. The agreement also included no admission of liability by Kessler or its employees. Derek Bahl, senior counsel for Select Medical, Kessler's parent company, confirmed after the verdict that the case "was in fact resolved during the trial for a confidential sum."
The capped payment is what Szell receives. The jury's finding stands on its own: an institution 96 percent responsible, and a $28.6 million measure of what one failed transfer cost her.
Sources
This account is drawn from contemporaneous public reporting and the court record.
More proven verdicts from Blume Forte Fried Zerres & Molinari, P.C.
All Blume Forte Fried Zerres & Molinari, P.C. proven verdicts →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.
Walter Tirrell, a 28-year-old oiler on a gas-line crew, was standing in a closed lane on Route 31 near Ringoes on November 12, 1986 when a 45-foot flatbed tractor-trailer carrying a backhoe backed up two or three trailer lengths without a signalman or an audible alarm and rolled over his chest, killing him in front of his coworkers. His widow sued the trailer's manufacturer, Rogers Brothers Corporation, under the New Jersey Product Liability Act, arguing the trailer was defectively designed because it shipped without a back-up alarm that cost about $35. A jury awarded $2,500,000 for wrongful death and $50,000 for his conscious pain and suffering, and the Appellate Division affirmed in a published May 1991 opinion.
Joseph DeHanes, a 38-year-old Westinghouse machine operator with a wife and two young children, went to the Raritan Bay Medical Center emergency room in 1992 with a tear in the inner lining of his aorta. Emergency physician Michael Rothman did not diagnose it, the aorta ruptured and bled into the sac around his heart while he was still in the emergency room, and he died. A jury found that with proper care he had a 70 percent chance of survival and awarded his family $2,025,000. Dr. Rothman appealed over the plaintiff lawyer's summation, and the Appellate Division and then a unanimous New Jersey Supreme Court affirmed in April 1999, overruling the old rule that kept juries from hearing an aggregate figure for future lost earnings.
Jennifer Burden was a passenger in her sister's car when it was struck by another driver on November 19, 2017, leaving her with herniated discs at five levels of her neck and lower back, foot drop, and headaches. After the at-fault driver's policy was exhausted by settlement, her own carrier, Mid-Century Insurance (Farmers), refused a $300,000 arbitration award and offered $25,000 on her $400,000 underinsured-motorist claim. An Essex County jury in April 2024 found her damages were $4,500,000. The court molded the verdict to $517,350.44, the policy limit plus fees, costs and interest, and the Appellate Division in March 2026 affirmed the dismissal of her bad-faith claim against the insurer.
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