Reported Cases

Diver suffered brain damage when oxygen was interrupted -
Guarascio v. Drake Associates Inc., the Underwater Authority

Mediation: $15,000,000.00

Case Type: Negligent Supervision, Admiralty/Maritime - Jones Act, Strict Liability - Ultrahazardous Activity

Case Name: Jacqueline Guarascio and Christine Wile, as Legal Representatives and Guardians of the Person of Anthony Guarascio v. Drake Associates, Inc., the Underwater Authority, a Corporation; EIC Associates, Inc. a Corporation; and South Jersey Port Corporation, a Corporation, No. 06 CV 15185

Venue: U.S. District Court, Southern District, NY

Judge: Colleen McMahon | John C. Bickerman

Date: 12-19-2008

Plaintiff(s):

Attorney(s):

Scott D. Frendel; Braunfotel & Frendel; New City, NY, for Anthony Guarascio

Gary A. Angel; Law Offices of Gary A. Angel; San Francisco, CA, for Anthony Guarascio

Frear Stephen Schmid; Law Offices of Gary A. Angel; San Francisco, CA, for Anthony Guarascio


Expert(s):

Craig Jenni; Diving; Boca Raton, FL called by: Gary Angel, Frear Schmid, Scott Frendel

Joseph Carfi M.D.; Life Care Planning; Great Neck, NY called by: Gary Angel, Frear Schmid, Scott Frendel

Frank Tinari Ph.D.; Economics; South Orange, NJ called by: Gary Angel, Frear Schmid, Scott Frendel

Philip Pirro P.E.; General Contracting; West Milford, NJ called by: Gary Angel, Frear Schmid, Scott Frendel

Jonathan Fellus M.D.; Life Care Planning; West Orange, NJ called by: Gary Angel, Frear Schmid, Scott Frendel

Defendant(s):

Attorney(s):

Craig C. English; Kennedy, Lillis, Schmidt & English; New York, NY, for Drake Associates Inc., the Underwater Authority

Darrell J. Whiteley; Lester, Schwab, Katz & Dwyer; New York, NY, for EIC Associates Inc.

James F. Kane; Carroll, McNulty & Kull, LLC; Basking Ridge, NJ, for South Jersey Port Corp.

Simon Harter; Law Offices of Simon Harter; New York, NY, for Drake Associates Inc., the Underwater Authority

Thomas C. Murphy; Kennedy, Lillis, Schmidt & English; New York, NY, for Drake Associates Inc., the Underwater Authority


Expert(s):

Captain Stephen Bielenda; Diving; Miller Place, NY called by: Simon Harter

John Roberton M.D., P.A.; Neurology; Montclair, NJ called by: Simon Harter, Craig English, Thomas Murphy, Darrell Whiteley

Patrick Gaughan Ph.D.; Economics; New York, NY called by: Simon Harter, Craig English, Thomas Murphy, Darrell Whiteley

Steven Barsky; Diving; Oxnard, CA called by: Darrell Whiteley

Frank Strasheim; Workplace Safety; San Rafael, CA called by: Darrell Whiteley

William Aichele; Marine Construction called by: Darrell Whiteley

Insurers:

American International Group Inc. for EIC Associates

Lloyd's of London for Drake Associates

St. Paul Travelers Inc. for Drake Associates and EIC Associates

Facts:

On Feb. 24, 2006, plaintiff Anthony Guarascio, 24, a commercial diver, worked at Pier IA of the Delaware River's Broadway Terminal, which is located in Camden, N.J. Guarascio was repairing a grout mattress that was located some 36 feet below the water's surface. After about three hours of work, Guarascio surfaced. A shore worker noted that Guarascio was in distress and suffering a lack of oxygen. Another shore worker opened a valve that delivered oxygen to Guarascio's emergency breathing apparatus, but Guarascio continued to struggle. After several failed attempts to remove Guarascio from the river, workers finally succeeded. However, Guarascio had already sustained a hypoxic event that caused quadriplegia and permanent damage of his brain.

Guarascio's legal guardians sued the terminal's owner, South Jersey Port Corp.; Guarascio's employer, Drake Associates Inc., the Underwater Authority; and the general contractor that hired Guarascio's employer, EIC Associates Inc. Guarascio's guardians alleged that Drake Associates was negligent in its planning, execution and oversight of Guarascio's dive, that Drake Associates was liable via application of the Jones Act, 46 U.S.C. ? 30104, that EIC Associates was negligent in its supervision of Drake Associates, and that EIC Associates and South Jersey Port were strictly liable for engaging in ultrahazardous diving activities.

South Jersey Port was released as a result of 11th Amendment immunity. The matter proceeded against the remaining defendants.

Plaintiff's counsel claimed that the incident stemmed from an accidental termination of Guarascio's oxygen. They contended that divers' oxygen lines must be monitored at all times, but that workers did not promptly detect that Guarascio's oxygen supply had been interrupted.

Drake Associates conceded liability, but EIC Associates did not. Its counsel contended that Drake Associates' contract specified that it was paid to supervise the work site.

Injury:

Guarascio suffered a hypoxic event that produced severe damage of his brain. He was comatose during the month that followed the accident. He suffers spastic quadriplegia, and his communication skills are limited. He will require lifelong assistance and medical care.

Guarascio's guardians sought recovery of about $1.5 million for Guarascio's past medical expenses, about $5.5 million for his future medical expenses, a total of about $2 million for his past and future lost earnings, and damages for his past and future pain and suffering.

Defense counsel contended that Guarascio's economic damages would total about $4 million, which would include about $2.1 million in future care-related expenses.

Verdict Information:

The parties negotiated a $15 million pretrial settlement, which was finalized via the guidance of mediator John Bickerman. EIC Associates' insurers agreed to contribute a total of $10,005,000, and Drake Associates' insurers agreed to contribute a total of $4,995,000. Guarascio received an immediate payment of $10,495,000, and the remaining $4,505,000 was placed in an annuity that will generate a minimum of 26.5 years of monthly payments. The settlement also included the waiver of a $2,127,000 Longshore Harbor Workers' Compensation Act lien for funds that had already been paid to Guarascio.


Balducci v. Mt. Sinai of Manhattan, et. al.

In a recent medical malpractice case, Scott D. Frendel was able to secure a $1.85 million dollar settlement through mediation for Philomena Balducci, a 62 year old school secretary from Suffern, New York.

Ms. Balducci had a pre-existing neurological condition called myasthenia gravis. Ms. Balducci presented to her primary care physician with symptoms consistent with a common cold. Rather than prescribing one of many common antibiotics to treat the underlying condition, her primary care physician prescribed Ketek, an antibiotic with many known side affects. Most importantly the medication was contra-indicated for individuals with myasthenia gravis.

After taking the Ketek at home, Ms. Balducci immediately went into respiratory failure. She was rushed to a local Hospital and then transferred to Mt. Sinai of Manhattan where she remained hospitalized for four months. While hospitalized, Ms. Balducci was placed on a ventilator due to the respiratory failure caused by taking Ketek. There were numerous unsuccessful attempts to wean Ms. Balducci from the ventilator. Additionally, she had a tracheotomy. Ms. Balducci also developed bed sores on her sacrum (lower back). Ms. Balducci, with the support of her husband and her four adult children, made a miraculous turnaround and improved enough to be discharged home. Unfortunately, she was never able to return to the job that she loved.

The defendants, who were the doctor that prescribed the Ketek and Mt. Sinai of Manhattan were represented by two of largest New York city law firms. The defense argued that Ms. Balducci never had the underlying condition, myasthenia gravis. In support of there position, the defendants relied upon a neurologist, who is recognized as the expert on myasthenia gravis. Moreover, the Hospital argued that the proper pressure reducing devises were utilized to prevent the development of the bedsores. Mr. Frendel countered these arguments by retaining numerous experts in the fields of neurology, nursing, pharmacology, as well as an economist.

The trial was scheduled in Manhattan Supreme Court. While the case was on the trial calendar, the parties at mediation were able to settle the case for $1.85 million dollars.


In the Matter of PHF

WCB #: 3040 1175

DATE OF APPEAL HEARING: 03/31/06

Scott D. Frendel for the claimant

APPELLATE DECISION:

Carrier appeals from the Decision of ECR Arbitrator Carolyn M. Laredo dated and filed December 8, 2005, which found that the claimant's decedent's death on March 12, 2003 was causally related to the prior work related injury compensable claim which took place on October 31, 1991 and awarded benefits to the claimant at the rate of $400.00 per week from March 12, 2003 and reimbursement to the claimant for funeral and burial expenses in the amount of $4,625.00.

It is the carrier's contention that the Arbitrator's Decision is not supported by the record nor common sense evaluation of such record and, therefore, should be overturned and the claim disallowed. The claimant contends that the Decision is supported by substantial evidence in the record, is not arbitrary and capricious, and should be affirmed.

The first issue to be determined by this Panel, as raised by both parties in their submissions and extensively argued by counsel for both parties at the Hearing before this Panel, is the timeliness of this appeal. The carrier's appeal was filed on February 13, 2006, some 67 days after the filing of the Decision on December 8, 2005. Workers' Compensation Law (WCL) §23 provides the "[a]ny party maywithin thirty days after notice of the filing of an award or decision of a referee, file with the board an application in writing for a modification or rescission or review of such award or decision...". [italics added] (see, also, 12 NYCRR §303.9)

The claimant contends that the above quoted statute and rule act as an absolute bar to a review of the Arbitrator's Decision, but the Board does have discretionary authority to entertain the appeal application beyond the 30-day period [Cohen v. NYC Dept. of Envir. Protection, 18 AD3d 1036 (3d Dept., 2005)]. The claimant further contends that the appeal was prompted by, and filed after, the claimant's request for penalties against the carrier for late payment of the award (made on January 23, 2006) and the mailing (February 10, 2006) of a Notice of Hearing, which was scheduled for March 10, 2006 and was to determine the question of possible late and/or non-payment penalty. WCL §25 (3)(f) provides for a penalty equal to 20% of the unpaid compensation paid to the claimant and a $50.00 assessment paid to the State Treasury if payment is not made within 10 days of the award, except in the case of an application to the Board for review of the award.

It is the carrier's contention that the appeal should be entertained in the interest of justice and based on the Board's continuing jurisdiction pursuant to WCL § 123. The carrier's reason for the late filing is its contention, through its attorney's letter/brief and oral argument, that the Decision was apparently not sent or faxed to the carrier's White Plains, New York office and, therefore it was not discovered by the carrier until February 3, 2006. Thus, the late filing was not the fault of the carrier, but was due to an inadvertent error made by the Arbitrator. After hearing both parties, reviewing the submissions of both parties and reviewing the file of the Workers' Compensation Board, it is the Decision of this Panel of Arbitrators that the filing of the Application for Board Review was untimely. The filing was substantially beyond the 30-day period set by law and the carrier has failed to offer any basis to excuse the late filing. The only excuse offer is the claim that the Decision was not received in its White Plains office. Yet the carrier has failed to explain the fact that the Notice of Decision lists as recipients the New York City address for the State Insurance Fund (199 Church Street) and the carrier's attorneys, in addition to the White Plains office (105 Corporate Park Drive) and it has failed to rebut the presumption of mailing and receipt (see CPLR 2103). It even acknowledged that the Decision was, in fact, received when it stated that the Decision was actually found at its White Plains office, albeit two months later. Therefore, since the appeal was filed late, it is hereby dismissed.

If we were to address the merits of this appeal, it is clear from the record, the parties' submissions and the oral arguments at the Hearing that there was sufficient evidence before the Arbitrator for her to determine that the claimant's decedent's death was related to the established compensable coronary insufficiency incident of October 31, 1991. In fact, the only significant disagreement between the carrier's consultant, Dr. Carl Friedman, and the claimant's doctors, Dr. Richard L. Kole and Dr. Richard S. Cantor, and the Board's impartial specialist, Dr. Bernard M. Wechsler, is Dr. Friedman's belief that the 1991 incident was transitory in nature. He did acknowledge that coronary insufficiency is a progressive disease and Drs. Kole, Cantor and Wechsler clearly showed how the progression of the compensable incident in 1991 eventually lead to the decedent's demise in 2003. In this Panel's opinion, the evidence before the Arbitrator was overwhelmingly in support of her determination that the decedent's death on March 12, 2003 was causally related to the prior incident of October 31, 1991.

The appeal filed by the State Insurance Fund on February 13, 2006 is hereby DISSMISED as untimely. As no payments have been paid and no timely application for appeal has been filed, the carrier is hereby directed to pay to the claimant the sums directed by Arbitrator Laredo in her Decision of December 8, 2005, namely the lump sum of $4,625.00 as reimbursement for funeral and burial expenses and the continuing sums of $400.00 per week from March 12, 2003, together with a late payment penalty of 20% on both awards, calculated to the date of payment, and $50.00 paid to the State Treasury.

Supreme Court, Appellate Division, Second Department, New York

In the Matter of HAVERSTRAW VILLAGE POLICEMAN'S BENEVOLENT

ASSOCIATION, INC., petitioner-respondent,

v.

TOWN OF HAVERSTRAW, et al., appellants, et al., respondents.

15 A.D.3d 403, 790 N.Y.S.2d 671

Decided: February 7, 2005.

Background: Article 78 proceeding in nature of mandamus was initiated to compel town, and its supervisor and councilpersons to notify State Civil Service Commission (CSC) for purpose of creating police advisory board. The Supreme Court, Rockland County, Nelson, J., granted petition. Defendants appealed.

Decision: The Supreme Court, Appellate Division, held that notice to Commission was required.

Affirmed.

Keane & Beane, P.C., White Plains, N.Y. (Ronald A. Longo and Mark D. Pellis of counsel), for appellants Town of Haverstraw, Howard Phillips, Paul Piperato, Frank Rundel, and Isador Cansell, and for Michael Grant.

Raymond G. Kruse, P.C., Spring Valley, N.Y., for appellant Town of Haverstraw, PBA.

Keith I. Braunfotel, for Haverstraw Village PBA respondents.

ANITA R. FLORIO, J.P., HOWARD MILLER, SONDRA MILLER, and ROBERT A. SPOLZINO, JJ.

In a proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the Town of Haverstraw, Howard Phillips, in his capacity as Supervisor of the Town of Haverstraw, Paul Piperato, Michael Grant, Frank Rundel, and Isador Cansell, in their capacities as councilpersons of the Town of Haverstraw, to notify the New York State Civil Service Commission pursuant to Civil Service Law § 83-a for the purpose of creating a police advisory board, the Town of Haverstraw, Howard Phillips, Paul Piperato, Frank Rundel, and Isador Cansell appeal, and the Town of Haverstraw, PBA separately appeals, from so much of an order of the Supreme Court, Rockland County (Nelson, J.), dated October 27, 2003, as granted that branch of the petition which was to compel the Town of Haverstraw to make the requisite notification.

ORDERED that on the court's own motion, the notices of appeal are treated as applications for leave to appeal, and leave to appeal is granted (see CPLR 5701[b][1], [c] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the petitioner, payable by the appellants appearing separately and filing separate briefs.

Under the circumstances of this case, the agreement dated March 13, 2003, between the Village of Haverstraw and the Town of Haverstraw (hereinafter the Town) contemplated a consolidation of their respective police forces as of December 31, 2005. Accordingly, pursuant to Civil Service Law § 83-a, the Town is required to notify the New York State Civil Service Commission (hereinafter the CSC) of the upcoming consolidation for the purpose of creating a police advisory board.

We note that both of the separate notices of appeal limit the respective appeals to so much of the Supreme Court's order as granted that branch of the petition which was to direct the Town to notify the CSC of the planned consolidation. Thus, the appellants' remaining contention on appeal, that the Supreme Court erred when, in effect, it denied that branch of the motion of the Town of Haverstraw, PBA which was to dismiss the proceeding for failure to join purportedly necessary parties, is beyond the scope of our review (see CPLR 5515[1]; O'Donoghue v. New York City School Constr. Auth., 1 A.D.3d 333, 767 N.Y.S.2d 49; Joslin v. Lopez, 309 A.D.2d 837, 765 N.Y.S.2d 895; Vias v. Rohan, 119 A.D.2d 672, 501 N.Y.S.2d 109). We further note that although a brief was submitted on behalf of Michael Grant, in his capacity as councilperson of the Town, no notice of appeal was filed on his behalf.

Supreme Court, Appellate Division, Second Department, New York

Tara HENTHORN, petitioner,

v.

ROCKLAND COUNTY SHERIFF, respondent.

283 A.D.2d 527, 724 N.Y.S.2d 892

Decided: May 16, 2001.

Keith I. Braunfotel, New City, N.Y, for petitioner.

Michael E. Bongiorno, District Attorney, New City, N.Y. (Brian P. Coffey of counsel), for respondent.

Writ of habeas corpus in the nature of an application to reduce bail upon Rockland County Indictment No. 01-122.

ADJUDGED that the writ is sustained, without costs or disbursements, to the extent of reducing bail on Rockland County Indictment No. 01-122 to the sum of $10,000, which may be posted in the form of an insurance company bail bond in that sum or by depositing the same sum as a cash bail alternative.

SANTUCCI, J.P., GOLDSTEIN, LUCIANO and ADAMS, JJ., concur.