Jury's $6 Million Verdict for Delayed Cancer Diagnosis Capped at $1 Million
After trial: The $6,000,000 jury verdict was capped at $1,000,000 by a high-low agreement the parties struck while the jury was deliberating, not by any statutory damages cap. The agreement was negotiated with Rothberg's insurance carrier and placed on the record, and the parties waived any right to appeal the judgment itself. Trial reporting indicates the jury also apportioned a share of the damages to Serico's pre-existing cancer, which lowered the gross award, but the molded figure was still far above the agreed ceiling, so the $1,000,000 judgment was unaffected. Lucia Serico moved for attorney's fees under New Jersey's offer-of-judgment rule after her judgment cleared the rule's threshold. The trial court denied the motion, the Appellate Division affirmed on February 16, 2017 (448 N.J. Super. 604), and the New Jersey Supreme Court affirmed on July 19, 2018 (234 N.J. 168), holding that the high-low agreement was a settlement contract whose ceiling controlled the entire recovery, fees included. The case was fully resolved by that decision.
Won by Nagel Rice, LLP.
A New Jersey jury awarded $6,000,000 after finding that a colorectal surgeon's failure to remove a polyp let a patient's colon cancer go undetected until it had spread to his liver. Benjamin Serico died of the cancer while the case was pending, and his wife Lucia Serico carried it to trial as executrix of his estate. While the jury was deliberating, the parties struck a high-low agreement that guaranteed the family a minimum recovery and capped the surgeon's total exposure at $1,000,000. Because the verdict exceeded that ceiling, judgment entered at $1,000,000. Both the New Jersey Appellate Division and the New Jersey Supreme Court held that the agreement controlled and that no attorney's fees could be added on top of it.
What happened
In December 2007, Benjamin Serico, then 58, underwent a colonoscopy performed by Robert Rothberg, a colorectal surgeon. Serico, an assistant professor, had reported blood in his stool and had colon cancer in his family. Rothberg attributed the bleeding to hemorrhoids. The procedure was recorded on video, and that footage later became the central evidence at trial: experts for the family testified it showed a polyp that should have been removed and was not. Rothberg disputed that reading of the video.
The cancer was not found for another two years. Serico went to an emergency room on New Year's Eve 2009 with severe pain, and the hospital found a large mass on his liver. A colonoscopy on January 5, 2010 confirmed colon cancer that had already spread there. He went through chemotherapy and several surgeries and died on December 27, 2011, at 62.
The malpractice suit was filed in 2011 in the Superior Court of New Jersey, Law Division, Essex County, under docket L-3566-11. Benjamin Serico died while it was pending, and his wife, Lucia Serico, carried on his negligence claim as executrix of his estate alongside her own claim. Nagel Rice, LLP represented the family, with Bruce H. Nagel, Bradley L. Rice and Robert H. Solomon on the case.
Before trial, Serico made a formal offer under New Jersey's offer-of-judgment rule to resolve the case. Rothberg did not respond to it, and the case went to a two-week jury trial in Essex County. While the jury was deliberating in October 2015, plaintiff's counsel negotiated a high-low agreement with Rothberg's insurance carrier and defense counsel and placed its terms on the record: the family was guaranteed a minimum recovery whatever the jury did, and Rothberg's total exposure was capped at $1,000,000 no matter how large the verdict. The parties also waived any right to appeal the judgment.
On October 14, 2015, the jury returned a verdict of $6,000,000 in the family's favor. Because the verdict ran past the agreed ceiling, the court entered judgment for the agreed maximum of $1,000,000.
Serico then asked the court for attorney's fees under the offer-of-judgment rule, arguing that her judgment had cleared the rule's threshold and that fees should be added on top of the ceiling. The trial judge denied the motion, reasoning that entering a high-low agreement without expressly reserving that right waived it.
The Appellate Division affirmed on February 16, 2017, in a published opinion at 448 N.J. Super. 604. It rejected the trial judge's reliance on custom and usage among lawyers, but held that the ceiling capped the total amount Rothberg owed, attorney's fees included. The New Jersey Supreme Court affirmed on July 19, 2018, at 234 N.J. 168, treating the high-low agreement as a settlement contract that superseded the earlier offer of judgment: because neither side mentioned preserving fee rights when the agreement was placed on the record, nothing could be added to the ceiling. The $1,000,000 judgment stood as the family's full recovery.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.NJ Superior Court, Appellate Division, Serico v. Rothberg, A-1717-15T1 (Feb. 16, 2017): confirms the $6,000,000 jury verdict, the high-low agreement negotiated with the defendant's insurance carrier and placed on the record during deliberations, the $1,000,000 ceiling and the $1,000,000 judgment entered, the waiver of any appeal of the judgment, the colon-cancer malpractice claim, the venue (Law Division, Essex County) and docket L-3566-11, and Nagel Rice, LLP as plaintiff's counsel (Robert H. Solomon argued; Bruce H. Nagel and Bradley L. Rice on the briefs).
- 2.NJ Supreme Court, Serico v. Rothberg, 234 N.J. 168, 189 A.3d 343 (July 19, 2018): affirms that the $1,000,000 high-low ceiling controlled over the $6,000,000 verdict and denies additional offer-of-judgment attorney's fees; names Bruce H. Nagel and Robert H. Solomon of Nagel Rice as counsel for the plaintiff.
- 3.CourtListener record of the published Appellate Division opinion, 448 N.J. Super. 604, 154 A.3d 723 (App. Div. Feb. 16, 2017): independently confirms the case identity, citation and decision date.
- 4.Medical Malpractice Lawyers, 2015 report on the verdict: the blood in the stool, the family history of colon cancer, the hemorrhoids explanation, the video of the 2007 colonoscopy and the disputed polyp, the New Year's Eve 2009 emergency room visit and liver mass, the Jan. 5, 2010 diagnosis, the Dec. 27, 2011 death, the two-week trial and the Oct. 14, 2015 verdict date.
- 5.Kreisman Law Offices case report (unrelated Illinois firm) on Serico v. Rothberg, Essex County docket ESX-L-003566-11: corroborates Serico's age of 58 at the December 2007 colonoscopy, that Rothberg is a colorectal surgeon, his occupation, the Oct. 14, 2015 $6,000,000 verdict, and Bruce Nagel as counsel for the family.
More proven verdicts from Nagel Rice, LLP
All Nagel Rice, LLP proven verdicts →A Middlesex County jury awarded $39 million on February 1, 2019 to Hussein Agiz, who was 18 when a drag racing car struck his motorcycle inside the Heller Industrial Parks complex in Edison, costing him his right arm and right leg. Jurors had earlier found Heller 40 percent at fault for tolerating years of documented drag racing on its property. The case later settled on appeal for an undisclosed amount.
Nicholas Dephillips, a 21-year-old apprentice electrician, fell about 15 feet through a drop ceiling while installing wiring for a helipad atop Newark's Prudential Center in January 2019, fracturing his cervical spine and leaving him paralyzed from the chest down. He sued his employer, Mehl Electric, general contractor Phelps Construction Group, and the arena in Superior Court of New Jersey, Essex County. In September 2021, before trial, he settled with Mehl Electric and its insurance carriers for $21 million, a figure his attorney called the largest construction site accident settlement in New Jersey at the time. His claims against Phelps went to trial in 2025, where a jury apportioned Phelps 36 percent of the liability, adding to his overall recovery from the incident.
Patrick Sweeney, a 34-year-old computer salesman, was killed in August 2006 when the car service driving him to Newark Liberty International Airport lost control on the New Jersey Turnpike near the Route 80 interchange in Bergen County and struck a guardrail that pierced the passenger compartment. His widow, Kristin Sweeney, sued the contractor that built the guardrail, the engineering firms involved in its design and oversight, and the limousine company, arguing the guardrail had not been built to the specifications required by its design. Attorney Bruce Nagel represented the family. After a three-year fight the case settled in 2009 for a combined $9.75 million paid by four defendants, $4 million of it in a settlement with the contractor and the New Jersey Turnpike Authority. A separate, previously dismissed claim against the guardrail's end-terminal manufacturer, Trinity Highway Industries, was not part of the settlement.
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