Virginia Lawyers Weekly//October 9, 2018
Virginia Lawyers Weekly//October 9, 2018//
On Oct. 5, 2012, the decedent was working as a pipefitter at a paper manufacturing plant in Southeast Virginia. The project included the conversion of the plant from a paper manufacturing plant to a tissue mill. The owner of the plant hired the decedent’s employer and several other contractors to complete the project.
There were two large internal cranes in the plant. On the day of the accident at issue, the decedent had been instructed to move a pipe that was blocking some of the needed retrofitting, and he climbed up on a rail to complete the work. At that time, employees of one of the other contractors hired by the owner were operating an overhead crane that ran through the plant. The crane struck and killed the decedent while he was in the process of moving the pipe.
Geoff McDonald & Associates, P.C. filed suit after two other firms passed on the case, and after one firm filed suit, but later nonsuited the case. The suit named three major parties defendant: the owner of the plant, the contractor supervising the plant conversion, and the contractor whose employees operated the crane that caused the decedent’s death. The defendants all filed pleas in bar, arguing that the action was barred by the exclusivity provision of the Virginia Workers’ Compensation Act. Justin Sheldon argued that the matter was not barred for the plaintiff. The court heard the pleas in bar and overruled them on the grounds that the owner was in the business of manufacturing, not converting plants, and the owner was therefore not the decedent’s statutory employer. The court also ruled that the other contractors hired by the owner were not the decedent’s statutory co-employees because none of them was employed by the decedent’s actual employer.
After plaintiff prevailed on the pleas in bar, litigation began in earnest with 33 depositions in 11 different cities and four different states. On the issue of liability, the primary expert witness was Richard Ziernicki from Colorado. His work was focused on the proper maintenance and operation of the crane, as well as the duties and responsibilities of the different employers working on the project. There was evidence that the crane was in serious need of maintenance and that the operator at the time of the incident was unauthorized and untrained. There was also evidence that the supervising contractor had failed to stop the work or notify the various contractors of the potential movement of the crane in the area where the decedent was working. Ziernicki’s testimony was instrumental in explaining the case and providing visualization of the ever-changing construction project. He was able to use photographs taken during the construction project and on the day of the accident and overlay photographs taken years later to make a computer graphic showing the changes. He used three-dimensional photography and photographs taken with a drone. Using three-dimensional film taken from various sites in the plant, combined with movies taken from the drone, Ziernicki was able to show the crane in operation and provide a clear visual account of what happened on the day of the accident.
The primary issues raised by the defendants were contributory negligence, and lack of primary negligence and causation. They claimed the decedent should not have been where he was at the time he was struck by the crane, should have heard and seen the crane coming, and/or should have stopped his work and locked out the crane from operating before beginning his work. The plaintiffs hired Irv and Joseph Cantor and their company Jury Impressions to perform a three-track jury focus group to test the issues. The focus group members soundly rejected the contributory negligence and lack of primary negligence and causation defenses, and this helped with the mediation of the case. Ziernicki’s three-dimensional demonstration was especially helpful during the focus group process, as it provided members of the group with a complete and accurate visual account of the scene and how the accident happened.
The decedent had a most interesting life. At the time of his death, he had five children with three different women. There was an enormous effort to show that he was a wonderful father who spent most of his income on his children. Larry Lynch was the economist hired to project lost benefits and lost income. Dr Thomas Tsao was retained to consult with the children over the loss of their father and the post-traumatic stress.
One month before trial was scheduled to commence, the parties engaged in a complex mediation, with Pam Baskervill serving as the mediator. After a full day of mediation, the case settled for $ 4,700,000.
The lawyers handling depositions for the plaintiff were Jeffrey Breit, Mike Imprevento, and Allen Beasley of Breit Drescher Imprevento, P.C., together with Justin Sheldon of Geoff McDonald and Associates. Sheldon drafted the briefs and argued in opposition to the defendants’ pleas in bar and prevailed. Irv Cantor and Joseph Cantor were instrumental in trial strategy and mediation.
Type of action: Wrongful Death
Injuries alleged: Death
Tried before: Mediation
Name of mediator: Hon. Pamela S. Baskervill (Ret.)
Special damages: Future wage loss: $1,738,155
Verdict or settlement: Settlement
Amount: $4,700,000 ($2,500,000 from contractor employing crane operator’s carrier, $1,200,000 from supervising contractor’s carrier, and $1,000,000 from owner of the plant’s carrier)
Attorneys for plaintiff: Jeffrey A. Breit, Virginia Beach; Irv Cantor, Richmond; Justin Sheldon, Richmond; Michael Imprevento, Virginia Beach; and Allen Beasley, Virginia Beach
Plaintiff’s experts: Dr. Richard Ziernicki (Accident Reconstructionist), Dr. Larry Lynch (Economist), Dr. Thomas Tsao (Psychiatrist), Dr. Elizabeth Kinnison (Medical Examiner) and Dr. Marcella Fierro (Pathologist)
Defendant’s experts: Brian S. Hope (Construction Site and Crane Safety), Patrick M. Ostrenga (Occupational Safety and Health), Barbara K. Byers (Vocational Evaluation), Ken Shorter (Construction Safety), D. Larry Dunville (Overhead Crane Safety), Dr. Daniel A. Wojnowski (Construction Site Safety)