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SMILEY & SMILEY, LLP
One Grand Central Place
60 East 42nd Street
New York, New York 10165
T: 212.986.2022 F: 212.697.4689
Toll Free: 866.SMILEYLAW
www.smileylaw.com

Since 1968, Smiley & Smiley has achieved landmark victories for those who have been
seriously injured or have had a loved one die as a result of negligence, whether through
medical malpractice, auto accidents, or product liability. The firm has built a track record
of stellar results and personalized client care by limiting their work to a small number of
significant serious injury cases, rather than spreading their attention thin. Most of these cases
come via referrals from other attorneys, who know that the hands in which they place their
clients are a reflection on their own service. When Smiley & Smiley devotes itself to a case, it
lavishes its time, finances, and expertise on the client, making certain that every phone call is
returned, each email is responded to, and every result is satisfactory.

This reputation for white-glove treatment is one of the main reasons why the firm was called
upon by Trial Lawyers Care, the non-profit set up by the Association of Trial Lawyers of
America in order to provide pro bono representation for victims of the 9/11 terrorist attacks.
The firm was assigned the most seriously injured of all of the victims, Jane Doe # 1, for whom
it attained an $8.6 million settlement.

CONGRATULATIONS TO PARTNER ANDREW J. SMILEY, ESQ.
2009 TOP VERDICT $3,594,943 DIBBLE V. NYCTA holding the New York City Transit
Authority liable for the negligence of the train operator who ran over our client causing him
to suffer an amputation of his lower leg.

Other Notable Results Obtained by Smiley Law:
$14,300,000 Verdict Against the City of New York
$14.3 Million verdict against the City of New York on behalf of a ballerina in the Harlem Dance Theater who was rendered
paraplegic after the car in which she was riding with Andre Robertson, a New York Yankees baseball player, crashed into
an abutment on the West Side Highway. We proved that the city’s negligence in failing to post required warning signs was
the cause of the accident.

$8,600,000 Awarded to 9/11 WTC Victim
$8.6 MILLION, the largest award paid by the fund in all cases, to “Jane Doe#1,” the first victim of the World Trade center
attacks to be admitted to the hospital and the last to be discharged over 14 months later.

$5,050,000 Settlement for Family of Painter Killed on WTC Reconstruction Project
$5.05 Million for the family of a painter killed while working the night shift at the World Trade Center site as part of the
Path Train Reconstruction Project following the Sept. 11, 2001, terrorist attacks.

$5,000,000 for Woman Injured By Turning Bus
$5,000,000 for a 34-year-old attorney who sustained catastrophic injuries to her leg as a result of being struck by a turning
bus.

$4,000,000 for Injured Doctor
$4,000,000 for a 33 year old physician who was struck by a turning bus while he was riding his bicycle to work in midtown
Manhattan. Our client sustained multiple injuries including a crushed pelvis resulting in permanent bladder incontinence
and sexual dysfunction. Despite this being a “hit and run” accident, Smiley Law identified the owners of the bus and held
them accountable.

2009NYTopVerdicts.indd 2
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TOP 2009 VERDICTS BY CATEGORY 14

TOP 10 CASE SUMMARIES
Products LiabiLity LLP; Los Angeles, CA, for The City of Harvey Friedman • Bruce Burke; Distribution; White
New York, The New York City Water Plains, NY called by: Robert
City claimed chemical in gasoline Board, The New York City Municipal • Harry Lawless; Food Science; Ithaca, Chapman
contaminated water wells Water Finance Authority NY called by: Robert Chapman
Facts:
Verdict: (P) $250,500,000.00 • Harvey R. Friedman; Greenberg • Kathleen Burns; Toxicology; Lexing- In the 1980s, several United States oil
Case Type: Manufacturing Defect, Prod- Glusker Fields Claman & Machtinger ton, MA called by: Robert Chapman companies began manufacturing and using
ucts Liability - Failure to Warn, Intentional LLP; Los Angeles, CA, for The City of methyl tertiary butyl ether (MTBE) as an
Torts - Trespass, Intentional Torts - Public New York, The New York City Water • Martin Tallett; Refineries Operations; additive in gasoline to replace lead and as
Nuisance Board, The New York City Municipal Lexington, MA called by: Harvey an octane enhancer, allowing the gasoline
Case: The City of New York, the Water Water Finance Authority Friedman to burn more cleanly and efficiently.
Board and Water Finance Agency v. Am- In 1990, amendments to the Clean Air
erada Hess Corp. et al., No. 04-CV-3417 • Victor M. Sher & Joshua G. Stein; • Marnie Bell; Environmental Dam- Act were passed that required oil compa-
Venue: U.S. District Court, Southern Sher Leff LLP; San Francisco, CA, for ages; Long Island City, NY called by: nies to add an “oxygenate” to gasoline,
District, NY The City of New York, The New York Victor Sher allowing gasoline to burn even more
Judge: Shira A. Scheindlin City Water Board, The New York City cleanly and efficiently. The United States
Date: 10-19-2009 Municipal Water Finance Authority • Gerry Beckett; Gasoline; Park City, Environmental Protection Agency subse-
UT called by: Victor Sher quently identified MTBE as a permitted
PLAINTIFF(S)Attorney: Expert: oxygenate after consideration of what
• Susan E. Amron; Assistant Corporation • Graham Fogg; Hydrogeology; Carmi- • Marcel Moreau; Storage Tanks; Port- chemicals would be permitted for purposes
Counsel, Michael A.Cardozo, Corpora- chael, CA called by: Joshua Stein land, ME called by: Victor Sher of complying with the Act.
tion Counsel; New York, NY, for The In the mid-1990s, the New York City
City of New York, The New York City • Kenneth Rudo; Toxicology; Chapel • Dave Terry; Hydrogeology; Ramsey, acquired a groundwater system in Queens
Water Board, The New York City Mu- Hill, NC called by: Robert Chapman NJ called by: Victor Sher that consisted of 68 wells. Between 1998
nicipal Water Finance Authority • Robert Reynolds; Ethanol; South and 2006, it found MTBE present in 39
• Robert S. Chapman; Greenberg • W. Edward Whitelaw Ph.D.; Eco- Bend, IN called by: Robert Chapman of its 68 wells in and around Jamaica. In
Glusker Fields Claman & Machtinger nomics; Eugene, OR called by: -Continued on p6

Verdicts Search’s Top NY Verdicts of 2009 3

38 PM 2009NYTopVerdicts.indd 3 4/21/10 3:40:08 PM

TOP 25 NEW YORK VERDICTS IN 2009
CASE DATE COURT TYPE OF ACTION PLAINTIFF'S COUNSEL PLAINTIFF'S EXPERT(S) AMOUNT

1 City of New York October 19 U.S. District Court, South- Products Liability: City claimed Victor M. Sher & Joshua G. Stein of Sher Leff Bruce Burke, Dave Terry, Gerry $250,500,000
v. Amerada Hess ern District chemical in gasoline contaminated LLP, and Harvey R. Friedman & Robert S. Beckett, Graham Fogg-UC Davis,
Corp. water wells Chapman of Greenberg Glusker Fields Claman Harry Lawless, Kathleen Burns,
& Machtinger LLP, and Susan E. Amronb of Kenneth Rudo,Marcel Moreau-
Corporation Counsel Marcel Moreau Associates,
Marnie Bell, Martin Tallett,Robert
Reynolds, W. Edward Whitelaw,
Ph.D.-University of Oregon
2 Baizan v. St. John's May 8 Westchester Supreme Medical Malpractice: Infant's cere- Randy B. Nassau of Fitzgerald & Fitzgerald Michael Soudry, M.B.A. - Eco Stat, $77,418,670
Riverside Hospital bral palsy due to slow OB/GYN, LLC, Daniel Adler, M.D., Jeffrey
suit alleged Koren, M.D., Joseph Carfi, M.D.,

3 Swanson v. North- December 10 Westchester Supreme Medical Malpractice: Prolonged Christopher B. Meagher of Meagher & Joseph Carfi, M.D., Michael Soudry, $60,939,847
ern Westchester dystocia led to baby's asphyxia, Meagher, P.C. MBA - Eco-State LLC, Michele
Hospital Center suit alleged Batista, M.D., Chone Ken Chen,
M.D.,
4 Hugh v. Ofodile July 14 Bronx Supreme Medical Malpractice: Botched sur- Andres F. Alonso of Parker Waichman Alonso Burt M. Greenberg, M.D., $60,000,000
gery produced vaginal deformity, LLP
suit alleged

5 Ffrench v. Agnant July 20 Westchester Supreme Medical Malpractice: Doc over- Merryl F. Weiner of Quaranta & Associates, Allan Hausknecht, M.D., Steven $47,950,000
looked symptoms of spinal tumor, and Christopher B. Meagher of Meagher & Valenstein, M.D., Sandra Gonchar,
suit alleged Meagher, P.C M.S.N., Alan M. Leiken, Ph.D.,

6 Busone v. McCarthy October 8 Saratoga Supreme Medical Malpractice: Baby's brain Robert E. Harris of Robert E. Harris, Esq. & Jose R. Foradada, M.D., $43,500,000
damage blamed on unskilled Stephen R. Coffey of O'Connell & Aronowitz
delivery staff

7 Smolinski v. Smo- March 20 Erie Supreme Motor Vehicle: Brothers in SUV Anne B. Rimmler, Philipp L. Rimmler & Brian R. Victor Smith - Sheridan Surgical $40,026,376
linski crash named each other as drivers Hogan of Paul William Beltz, P.C. Supply, Alberto Martinez-Arizala,
M.D. - Miami Project, Richard
Bergman - Heartland Homes, Inc.,
James Locke - Collision Research
Associates, Ronald R. Reiber,
Ph.D. - Canisius College, Jennifer
Abeles, D.O., Kevin Pranikoff,
M.D., Thomas Polisoto, M.D., Lisa
Keenan, Ph.D.,

8 Aguilar v. April 15 New York Supreme Motor Vehicle: Woman's leg de- Peter J. Saghir, Ben B. Rubinowitz & Richard M. Charles A. Kincaid, Ph.D. - Kincaid $27,500,000
New York City stroyed when struck by bus Steigman of Gair, Gair, Conason, Steigman & Vocational & Rehabilitation
Transit Authority Mackauf Services, Robert E. Genna -
Director of Suffolk County Crime
Laboratory, Mark Rubinstein, M.D.,
Mark Goldberg, M.D., Robert S.
Goldstein, M.D., Jeffrey M. Sieden-
berg, Ph.D.,

9 Cush v. November 24 Kings Supreme Medical Malpractice: Baby's defects Charles Silverstein of Silverstein & Bast Joseph Carfi, M.D. - Physiatry As- $24,100,000
Interfaith blamed on failure to restrain sociates, P.C., Philip Bresnick, M.D.,
Medical at-risk mom Daniel G. Adler, M.D.,
Center

10 Tenuto v. March 20 Richmond Supreme Products Liability: Martin W. Edelman of Edelman & Edelman, Mona Goldman Yudkoff, R.N., $22,500,000
Lederle Diaper-changing dad contracted P.C., Stanley Kops of Law Offices of Stanley M.P.H., C.R.R.N. - Mona Yudkoff
Laboratories polio from stool Kops, & Benedict P. Morelli & Arthur L. Salmon Rehab Consultants, Lawrence
of Morelli Ratner, P.C. Steinman, M.D., Carl Anderson,
M.D., Joseph Pagano, M.D., Alan
Lieken, Ph.D., Michael Sulzinski,
Ph.D.,

4 Verdicts Search’s Top NY Verdicts of 2009


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-Continued from p3 Litigation.” The City’s action was the first the chemical may cause cancer in people. As the health effects MTBE has on humans,
2000, the city found MTBE present in one to go to trial and the Court set the a result, it argued that the five wells required arguing that no United States or foreign
two of its six wells in and around “Station five contaminate Station 6 wells as the first expensive treatment to remove the MTBE governmental agency has identified MTBE
6,” the first group of wells the city in- bellwethers for the city’s case. from the defendant’s product. as a human carcinogen.
tended to bring back on line. By 2003, the Prior to trial, 32 of the companies settled ExxonMobil denied any liability in the
city had found MTBE in three other wells. and the action proceeded to trial against contamination of the city’s five wells. It Injury:
It claimed that the contamination would ExxonMobil on the five representative wells. argued that the wells in question were The city claimed that MTBE contamina-
prevent the city from using them as part The City claimed that underground abandoned several decades ago because of tion in the Station 6 wells injured the city
of a backup system in case of emergencies gasoline storage tanks leak and that MTBE other high-level contamination by proven and rendered the water unusable without
or droughts. It also alleged that these wells is highly water soluble, so that fuel leaks carcinogens, namely perchlorethylene treatment, and that those effects will last for
required expensive treatment to remove from ExxonMobil’s and other oil compa- (PCE), or dry cleaning chemicals. It fur- decades. Specifically, it alleged that MTBE
the MTBE. In 2004, New York State nies’ storage tanks caused the chemical to ther contended that PCE contamination in the combined flow from the wells would
banned the use of MTBE, finding that the easily contaminate groundwater. It alleged from other industries in the area still poses peak at 35 parts per billion and that MTBE
chemical was highly water soluble, was a that ExxonMobil’s engineers and scien- a threat to the wells and that the city has would remain in the wells for more than 40
possible carcinogen and had contaminated tists determined there was a strong risk no intention of using these wells for drink- years. It alleged that in order to clean the wa-
groundwater throughout the state. of groundwater contamination, but that ing water because of the longstanding PCE ter, it needs to build a water-treatment plant
The city sued ExxonMobil Corp., as well the company chose to use the chemical contamination. Defense counsel argued to treat approximately 10 million gallons of
as several other oil companies. It alleged anyway, resulting in the contamination of that ExxonMobil should not be held liable water per day that the wells could provide.
that gasoline containing MTBE was a the groundwater pulled in by the City’s five for the low-level MTBE contamination of The city claimed that it would cost an
defectively designed product, and that the wells, along with contamination around the the wells by other sources and contended additional $54 million to the $60 million
defendants failed to warn of the danger- country. The City argued that ExxonMobil that the city’s own expert opined that at in capital costs to remove the MTBE from
ous nature of their product. It also alleged could have used ethanol instead of MTBE least three other non-ExxonMobil gas the wells and another $73 million to $190
that the defendants’ actions constituted as an oxygenate in gasoline without any stations contaminated the wells. In addi- million in operating and maintenance
trespass, negligence and a nuisance. harmful side effects and that the ethanol tion, defense counsel contended that oil costs over the course of 40 years. As a
This action became part of a larger litiga- cost was comparable. It contended that as a companies originally used MTBE rather result, it asked the jury to award it $250.5
tion involving contamination from MTBE, result, the defendant chose to use the more than ethanol because of the limited supply million in compensatory damages.
consisting of over 150 lawsuits filed by risky and harmful chemical in order to save of ethanol and because car manufacturers Defense counsel disputed the cost of the
water providers, well owners and state and money. The city further claimed that the feared that its use would diminish the per- clean up and contended that the city did
local governments. The combined actions EPA found that even low levels of MTBE formance of their vehicles, not because of not intend to build the treatment plant
became known as “In Re: Methyl Tertiary can make water undrinkable by making it any overriding economic benefit to using given the long history and continued pres-
Butyl Ether (“MTBE”) Products Liability smell or taste like turpentine. It alleged that MTBE. Defense counsel further disputed -Continued on p8


11 Angamarca v. April 8 Kings Supreme Construction: Carpenter fell Marc C. Saperstein of Davis, Saperstein & Frank D. Tinari, Ph.D. - Tinari $20,000,000
New York City through skylight that wasn't prop- Salomon, P.C. Economics Group, Jamie R. Wil-
Partnership Housing erly covered liams, Ph.D. - Robson Forensics
Development Fund Inc., Douglas Cohen, M.D., Ira
comany Inc. Esformes, M.D., Patricia W. Iyer,
M.S.N., Dustin Gordon, Ph.D.,
Edward Provder,

12 Figueroa v. Southern July 10 Bronx Supreme Medical Malpractice: Undiagnosed James Wilkens & Edward G. Bithorn of Duffy Alan M. Leiken, Ph.D., Richard $19,792,000
spinal abscess caused paralysis & Duffy Lechtenberg, M.D. - University of
Medicine and Dentistry of New
Jersey, Angelo Scotti, M.D., Robert
Kirkwood, M.D., Sandra Gonchar,
MSN,

13 Estate of Danzy v. December 18 Kings Supreme Nursing Homes: Fatal infection Dennis J. Kelly & David Grossman of Kelly, Dennis J. Ryan - Applied Forensics, $18,750,000
Brooklyn-Queens called product of nurses' neglect Grossman & Flanagan, LLP LLP, Joseph Namey, D.O., Char-
Nursing Home Inc. lotte Sheppard,

14 Radeva v. NYC April 23 New York Supreme Motor Vehicle: Bicyclist, bus driver David J. Dean of Sullivan Papain Block McGrath Paul Post, M.D., Robert Goldstein, $15,130,307
Transit Authority debated who struck whom & Cannavo P.C. M.D., Nicholas Bellizzi, P.E.,



-Continued from p6 As a result, the jury determined that the MedicaL MaLPractice • Michael Soudry M.B.A.; Econom-
ence of dry cleaning chemical contamina- city’s compensatory damages amounted ics; New York, NY called by: Randy
tion. They argued that the city, instead, to $250.5 million. However, the total was Infant’s cerebral palsy due to slow OB/ Nassau
had other projects underway to provide offset by $70 million for any preexisting GYN, suit alleged
other backup sources of water for the area. contamination of the wells, such as the • Daniel Adler M.D.; Pediatric Neurol-
PCE contamination, and 42-percent for Verdict: (P) $77,418,670.00 ogy; Ridgewood, NJ called by: Randy
Verdict Information The jury found that any contamination caused by the other oil Case Type: Failure to Monitor, Medical Nassau
by 2033, MTBE will have contaminated companies that had already settled with Malpractice - Delayed Treatment, Medical
the wells’ peak level output at 10 parts per the city. Of the 42-percent liability, the Malpractice - Childbirth, Medical Mal- • Jeffrey Koren M.D.; OB-GYN -- See
billion, which is New York State’s Maxi- jury found BP-Amoco 13.1-percent liable, practice - Cerebral Palsy, Medical Malprac- also Gynecology; Tampa, FL called
mum Contaminant Level, or the level of Sunoco 6.1-percent liable, Shell 2.4-per- tice - Birth Injury, Medical Malpractice by: Randy Nassau
the chemical that the state Department of cent liable, Chevron/Texaco 1.7-percent - OB-GYN
Health allows to be served in drinking water. liable, Hess 6.9-percent liable, Valero Case: Diego Baizan, an infant by his Facts:
As a result, the jury found that the city .2-percent liable, Conoco-Philips .7-per- m/n/g Mariana Mejia Baizan and Mariana On Feb. 16, 2006, plaintiff Diego Bai-
was injured by the presence of MTBE in cent liable, El Paso .4-percent liable, Citgo Mejia Baizan, Individually v. St. John’s zan was born. The delivery was performed
its wells and that ExxonMobil was liable 7.1-percent liable, Gulf Oil/Cumberland Riverside Hospital and Shahram Razmzan, by obstetrician/gynecologist Dr. Shahram
for the contamination of the cty’s five Farms 2.2-percent liable, and Marathon M.D., No. 747/07 Razman, at St. John’s Riverside Hospital,
water wells. It also found that gasoline 1.2-percent liable. It also found that Getty, Venue: Westchester Supreme, NY in Yonkers.
containing MTBE was unreasonably Irving Oil and Atlantic Richfield were not Judge: Joan B. Lefkowitz Diego’s birth concluded a relatively
dangerous, but that there was not evidence liable for the contamination. Date: 05-08-2009 short delivery process. During the hour
of a safer, feasible alternative design being Thus, the city’s total recovery was that preceded 7 p.m., his mother, Mariana
available at that time. The jury further $104,690,000. PLAINTIFF(S)Attorney: Baizan, presented to the hospital. At about
found that ExxonMobil failed to warn of • Randy B. Nassau; Fitzgerald & 7:54 p.m., Mariana Baizan was attached to
the dangers of its product and that this Editor’s Comments - This report includes Fitzgerald; Yonkers, NY, for Diego an external electronic device that moni-
failure contributed to the city’s injury. information that was gleaned from articles Baizan tored the fetus’s heartbeat. The monitor’s
It also found ExxonMobil’s conduct that were published by Bloomberg L.P., initial readings indicated that Diego’s heart
constituted a public nuisance, and that Sierra Club and The New York Times, as Expert: was generating more than 160 beats per
releases of MTBE from ExxonMobil’s own well as court documents. It also includes • Joseph Carfi M.D.; Physical Reha- minute. Such a rate is slightly faster than
gasoline stations near Station 6 wells were information that was provided by plain- bilitation; Great Neck, NY called by: the typical rate. The monitor also indicated
direct substantial factors in causing the tiff’s and defense counsel. Randy Nassau decreasing variability of the heart’s rate.
City’s injuries. -Continued on p10


15 Bianco v. Flushing February 23 Queens Supreme Employment: Nurse claimed Rick Ostrove & Thomas Ricotta of Leeds $15,000,000
Hospital Medical hospital ignored doc's sexual Morelli & Brown, P.C.
Center advances

16 Bank Hapoalim October 20 New York Supreme Fraud: Bank sold notes for Phoebe Wilkinson & Scott S. Balber of Chad- Vincenzo Dispinzeri, Salvatore $14,566,353
(Switzerland) Ltd. v. company it knew would fail, suit bourne & Parke LLP Tedesco,
Banca Intesa S.p.A. alleged

17 Nunez v. City of June 3 Kings Supreme Workplace: Transit worker broke Lawrence P. Biondi of Law Offices of Lawrence Eric Crone, M.D., Ronald E. Mis- $13,623,439
New York skull, pelvis in fall from elevated P. Biondi sun, Ph.D., Marcia Knight, Ph.D.,
track Joseph Pessalano,

18 DePascale v. Sylvania November 12 U.S. District Court, Eastern Workplace: Workers claim injuries Joseph D. Gonzalez of Gonzalez & Robinson Frank D. Tinari, Ph.D. - Tinari $12,000,000
Electronic Products, District resulting from toxic and radioac- Economics Group, Eckhardt
Inc. tive exposure Johanning, M.D. - Eastern Ny
Occupational & Environmental
Health Center, Lorne Everett,
James Wells, Jack Thrasher,


2009NYTopVerdicts.indd 8 4/21/10 3:40:15 PM Krein

THE LAW FIRM OF KREINDLER & KREINDLER LLP
CONGRATULATES PARTNER NOAH KUSHLEFSKY FOR WINNING
ONE OF THE TOP VERDICTS OF 2009

Reis v. Volvo Car Corp. – New York County – $8,753,000

Kreindler & Kreindler LLP proudly recognizes Partner Noah Kushlefsky for
his tremendous hard fought verdict in Reis v. Volvo Car Corp. The Reis case
involved a design defect in a Volvo vehicle which resulted in the traumatic
above-the-knee amputation of a 56 year-old man’s leg. Like many of the
cases the firm litigates, the Reis case was referred to the firm by a smaller
firm that did not have the financial or staffing resources to handle a complex
automobile design defect case to conclusion. Kreindler & Kreindler LLP
regularly acts as co-counsel with other firms in a variety of practice areas to
best represent the interests of the client and to maximize their recovery.
Noah Kushlefsky has been
practicing law in New York for
The verdict in Reis continues the firm’s tradition of legal excellence and
more than 24 years. He litigates advocacy for victims’ rights. For more than 50 years Kreindler & Kreindler
in both state and federal courts, LLP has built a reputation fighting on behalf of victims of negligence and
exclusively on behalf of plaintiffs, dangerous products. It is known as one of the preeminent plaintiffs firms in
in a variety of practice areas, New York, and is a recognized expert on the laws of New York as well as the
including: products liability, medi- laws which govern air travel.
cal malpractice, automobile and
bus accidents, aviation accidents, Long recognized as the premier plaintiff’s aviation litigation firm in New York
toxic torts and premises liability. and the country, Kreindler & Kreindler brings decades of experience and
He heads the firm’s general tort unmatched resources to a wide range of general tort, product liability and
practice group and has recovered medical negligence cases in its New York practice. The firm takes a lead
in excess of $1,000,000 in more role in all cases in which it is involved, and expertly handles all phases of
litigation from pre-trial to trial practice and through appeals.
than 200 cases.

Members of the firm author the treatise, New York Law of Torts (West), and
the leading textbook in the aviation field, Aviation Accident Law (Matthew
Bender).

New York Office: 100 Park Avenue, New York, NY 10017-5590 / 212-687-8181 / fax 212-972-9432
California Office: 707 Wilshire Boulevard, Los Angeles, CA 90017 / 213-622-6469 / fax 213-622-6019
Massachusetts Office: 277 Dartmouth Street, Boston, MA 02116 / 617-424-9100 / fax 617-424-9120

Kreindler.indd 1 4/21/10 3:40:16 PM
4/15/10 9:45:19 AM

-Continued from p8 palsy. Baizan claimed that the hypoxic event gen. They contended that an immediate tiffs’ counsel contended that Diego will not
The readings were deemed nonreactive, could have been detected and addressed response was warranted, and they opined obtain employment, that he will not com-
which may be indicative of a potential before significant damage occurred. that every lost minute compounded Di- plete high school and that he will always
problem. Baizan, acting individually and as ego’s injuries. require constant residential assistance.
At about 8 p.m., Razman noted that Diego’s parent and natural guardian, sued Defense counsel contended that patho- Diego’s mother sought recovery of
Baizan’s cervical dilation measured about Razman and St. John’s Riverside Hospital. logical findings indicated that Diego’s Diego’s future medical expenses, the cost
6 centimeters. The cervix was fully effaced. The plaintiffs alleged that Razman and the hypoxic event preceded his mother’s arrival of his future custodial and residential care,
Diego’s head was detected in the zero sta- hospital’s staff failed to timely monitor and at the hospital. He also contended that the the cost of his future rehabilitation, his
tion, which is an area above the entrance deliver Diego. They further alleged that hospital’s staff appropriately monitored future lost earnings, and damages for his
of the birth canal. those failures constituted malpractice. Diego, and he claimed that the monitor’s past and future pain and suffering. She also
At about 8:20 p.m., Baizan’s cervical The plaintiffs and Razman negotiated a readings did not suggest that an earlier presented a derivative claim.
dilation measured about 8.5 centimeters. $2.1 million pretrial settlement. The mat- delivery was necessary. He claimed that an Defense counsel maintained that Diego’s
Doctors recorded a prolonged decelera- ter proceeded to a trial against St. John’s expeditious vaginal delivery presented less injuries preceded his mother’s arrival at the
tion of the rate of the fetus’s heartbeat. As Riverside Hospital. risk than a Caesarean delivery would have hospital.
a result, Diego’s heart was generating about Plaintiffs’ counsel claimed that Diego’s presented.
90 beats per minute. Such a rate is much hypoxia began after his mother arrived at Verdict Information The jury found that
slower than the normal rate of a fetus’ heart. the hospital. She contended that the fetus’s Injury: the hospital was liable for Diego’s injuries.
The monitor continued to indicate decreas- heart was not promptly monitored, and Diego sustained a hypoxic event that It determined that Diego’s damages totaled
ing variability of the heart’s rate, and its she argued that the hypoxic event could caused damage of his brain. During the $77,418,670.
readings were deemed non-reassuring. have begun before the monitoring had first few hours of his life, he suffered sei-
At about 8:40 p.m., Razman determined begun. She further argued that a Caesarean zures. He also required the administration Diego Baizan
that Baizan’s cervix was fully dilated. He delivery should have commenced at about of oxygen. $3,000,000 Personal Injury: Past Pain And
ruptured her amniotic membrane, and 8 p.m., when the monitor’s first nonreac- Diego suffers cerebral palsy, cortical Suffering
meconium was observed. Although meco- tive readings were observed. She claimed impairment of his vision, impairment of his $6,132,880 Personal Injury: future medi-
nium is frequently detected during labor, that those readings were clear indicators speech and delays of his mental develop- cal cost (68 years)
it occasionally indicates that the fetus is of fetal distress. She argued that a prompt ment. His nourishment is delivered via a $40,190,509 Personal Injury: future cost
suffering distress. The delivery commenced, Caesarean delivery would have prevented gastric tube, and he requires around-the- of custodial and residential care (68 years)
and Diego was born at 9:03 p.m. Doctors Diego’s residual injuries. clock assistance of all of his activities. His $3,184,960 Personal Injury: future cost of
soon determined that Diego had sustained The plaintiffs’ medical experts agreed weekly regimen includes multiple sessions rehabilitation (18 years)
a hypoxic event that caused damage of his that the monitor’s readings suggested that of occupational therapy, physical therapy $20,000,000 Personal Injury: future pain
brain. As a result, the child suffers cerebral Diego was not receiving sufficient oxy- and therapy that addresses his speech. Plain- -Continued on p12


19 Corter v. Holt Con- February 4 Orange Supreme Construction: Workers claimed Joseph Carfora & Daniel Weir of Sacks & Sacks Ronald E. Missun, Ph.D., Barbara $11,504,836
struction Corp. they were poisoned by steel's Scheffel, R.N. - Scheffel & Associ-
fumes ates, Petr Bezdicek, M.D., Alan
Fein, M.D., James Stewart, Ph.D.,
CIH, James Kornberg, Sc.D.,

20 Quillen v. Shapiro April 7 Bronx Supreme Medical Malpractice: Plaintiff al- David J. Dean of Sullivan Papain Block McGrath Norman Bloom, M.D. - Surgery/ $10,500,000
leged cancer spread when docs & Cannavo P.C. Oncology, Mark B. Schiffer, M.D.,
nixed surgery F.A.C.C., Al Mickens,

21 Sanders v. NYCTA March 6 Kings Supreme Transportation: Train's motorman Gary B. Pillersdorf of Gary B. Pillersdorf & Nicholas Bellizzi, P.E., Ali E. Guy, $10,306,000
failed to avoid man on tracks, suit Associates M.D. - Mid-Island Physical Medi-
alleged cine & Rehabilitation, Robert G.
Frein,

22 Estate of Ingrassia v. June 18 Richmond Supreme Intentional Torts: Father claimed Vito A. Cannavo of Sullivan Papain Block Alan Schecter, M.D., $10,100,000
Lividikos assault on car resulted in son's McGrath & Cannavo P.C.
death

23 Lyon v. May 8 Onondaga Medical Malpractice: Spinal-fluid Jeff D. DeFrancisco of the DeFrancisco Law Judith Axelrod, M.D., Arnold $9,785,000
Gingold Supreme leak led to immobility of legs, suit Firm Goran, M.D., James Abrahams,
alleged M.D., Lawrence Spizman, Ph.D.,



-Continued from p10 Center, and Women’s Medical Associates, Swanson was born. The delivery was per- Kohn did not properly address the
and suffering (68 years) PLLC and Carla Eng-Kohn, M.D., No. formed by an obstetrician/gynecologist Dr. dystocia. He contended that traction was
$4,910,321 Personal Injury: future lost 16743/07 Carla Eng-Kohn, at Northern Westchester applied to the baby’s head. He noted that
earnings (38 years) Venue: Westchester Supreme, NY Hospital, in Mount Kisco. Michael sustained an injury of his brachial
Judge: Nicholas Colabella During the delivery, Eng-Kohn encoun- plexus, which comprises the nerves that
Post-Trial: Judge Joan Lefkowitz denied Date: 12-10-2009 tered a dystocia, which is a potentially fatal service the arms and shoulders, and he
defense counsel’s motion to reduce or set condition that occurs when the mother’s pu- claimed that such an injury is always a
aside the damages awards. PLAINTIFF(S) Attorney: bic bone entraps one of the baby’s shoulders. result of the delivering doctor’s use of
• Christopher B. Meagher; Meagher The dystocia was relieved, and the delivery excessive traction. The plaintiffs’ expert
Editor’s Comments This report is based & Meagher, P.C.; White Plains, NY, was completed. However, doctors ultimately neurologist opined that Michael also suf-
on information that was provided by for Bruce Swanson, Mary Swanson, determined that Michael suffers damage fered lateral medullary syndrome--a disease
plaintiffs’ and defense counsel. Michael Swanson of his brain. Michael’s parents, Bruce and that causes impairment of speech and/or
Mary Swanson, claimed that Michael’s the ability to swallow. He contended that
Expert: impairment is a result of asphyxia that oc- that condition is also an exclusive result of
MedicaL MaLPractice • Chone Chen M.D.; Pediatric curred while Eng-Kohn was relieving the the application of excessive traction.
Neurology; Brooklyn, NY called by: dystocia. They contended that Eng-Kohn The plaintiffs’ expert obstetrician opined
Prolonged dystocia led to baby’s asphyxia,
Christopher Meagher did not expeditiously relieve the dystocia. that eight or nine minutes passed before
suit alleged
Bruce and Mary Swanson, acting indi- the dystocia was relieved, and the plain-
• Joseph Carfi M.D.; Physical Rehabili- vidually and as Michael’s parents and natu- tiffs’ expert neurologist opined that the
Verdict: (P) $60,939,847.00
tation; New Hyde Park, NY called by: ral guardians, sued Eng-Kohn; Eng-Kohn’s prolonged dystocia asphyxiated the baby.
Case Type: Negligent Treatment, Medical
Christopher Meagher employer, Women’s Medical Associates, He contended that monitors indicated that
Malpractice - Delayed Treatment, Medical
• Michael Soudry MBA; Economics; PLLC; and Northern Westchester Hospi- Michael suffered two minutes of tachycar-
Malpractice - Childbirth, Medical Mal-
New York, NY called by: Christopher tal. The plaintiffs alleged that Eng-Kohn dia, which is an abnormally fast heartbeat,
practice - OB-GYN, Medical Malpractice
Meagher and the hospital’s staff failed to properly and he suggested that the condition was
- Nurse
perform the delivery, that their failures an indication of distress. Plaintiffs’ counsel
Case: Michael Swanson, an Infant Under
• Michele Batista M.D.; OB-GYN – constituted malpractice, and that Women’s claimed that Michael was not crying when
14 Years of Age, by and Through His
See also Gynecology; Pomona, NY Medical Associates was vicariously liable he was delivered, and he contended that
Parents and Natural Guardians, Mary
called by: Christopher Meagher for Eng-Kohn’s actions. Women’s Medical the child’s face exhibited a bluish discol-
Swanson and Bruce Swanson, and Mary
Associates stipulated that it was vicariously oration. The plaintiffs’ expert obstetri-
Swanson and Bruce Swanson, Individu-
Facts: liable for Eng-Kohn’s actions. cian opined that Eng-Kohn neglected to
ally v. Northern Westchester Hospital -Continued on p14
On Oct. 10, 2003, plaintiff Michael Plaintiffs’ counsel claimed that Eng-


24 Lomotowski v. September 25 Bronx Supreme Construction: Worker fractured David H. Perecman of The Perecman Firm Alan M. Leiken, Ph.D., David R. $9,200,000
Naica Housing feet, knee in 20-foot fall through Payne, M.D. - The Spine and
Development Fund open floor Joint Center, Stuart Remer, M.D.,
Co. Inc. Harold L. Goldstein,

25 Reis v. Volvo Cars of November 25 New York Supreme Products Liability: Car's unexpect- Susan A. Friery & Noah H. Kushlefsky of Krein- Karen Pechman, M.D. - White $8,753,000
North America Inc. ed lurch cost bystander a leg dler & Kreindler LLP Plains Hospital Center / Burke
Rehabilitation Center, David
Asprinio, M.D. - University Or-
thopaedics PC, Nicholas Guarino,
CPO - Hanger Prosthetics &
Orthotics, Leonard R. Freifelder,
Ph.D. - Freifelder & Associ-
ates Consulting, Inc., William E.
Gest, P.E. - Augspurger Komm
Engineering & BTI Consultants,
Dorra Blacker, C.R.C., Mark M.
Kramer, M.D., Gary Tannenbaum,
M.D., Murray Bernstein, P.E., Mona
Yudkoff, R.N., M.P.H., C.R.R.N.,


2009NYTopVerdicts.indd 12 4/21/10 3:40:22 PM Park

WWW.YOURLAWYER.COM
1-800-YOURLAWYER(1-800-968-7829)

New Office:
6 Harbor Park Drive
Port Washington, New York 11050-4647
Tel 516.466.6500 1.800.LAW.INFO
Fax 516.466.6665

Florida:
3301 Bonita Beach Road
Bonita Springs, Florida 34134
Tel 239.390.1000 Fax 239.390.0055

New Jersey:
2300 Woodridge Avenue
Edison, New Jersey 08817
Tel 732.985.8888 Fax 973.297.1020

New York City:
111 John Street, 14th Floor
New York, New York 10038
Tel 212.267.6700

Landmark cases are the norm for the attorneys at Parker Waichman Alonso LLP. Attorneys from the firm were among the first to lead the charge
in New York State’s Diet Drug and ReNu with MoistureLoc Contact Lens Solution litigations and the 1993 World Trade Center bombing. The firm is
also routinely appointed to Plaintiffs’ Steering Committees in Multi-District Litigations including Zyprexa, Ortho Evra, Gadolinium, Vytorin, Chinese-
Manufactured Drywall, Denture Cream, Yasmin and Yaz (Drospirenone), Heparin and Bayer Combination Aspirin.

In addition to these and many other mass tort cases, the firm has a long history of handling traditional, single-event tort cases. While there are many
memorable cases, a few stand out. Andres F. Alonso, a partner at Parker Waichman Alonso LLP, says that the case of Allison Hugh is one that he will
carry with him forever.

On July 15, 2009 a Bronx County jury awarded $60 million in damages to Ms. Hugh, 44, in a medical malpractice case she brought against Queens
plastic surgeon Ferdinand A. Ofodile, M.D.

The case involved a thigh lift procedure, performed by Dr. Ofodile, which caused significant injury and deformity to the labia of Ms. Hugh’s vagina.
Dr. Ofodile failed not only to provide Ms. Hugh with informed consent but also failed to use proper surgical technique.

In November 2002, Alison Hugh underwent gastric bypass surgery. Over the next 18 months she lost approximately 200 pounds. As a result,
beginning in December 2003, Ms. Hugh started looking for a plastic surgeon who could remove the excess skin that had formed between her
thighs. She consulted with surgeons in New York, Pennsylvania and Jamaica who uniformly recommended a medical thigh lift but warned of the
risk that the procedure could leave her with deformed labia.

A year later, however, Ms. Hugh consulted with Dr. Ofodile. At their initial consult, Ms. Hugh raised her concerns of deformity and keloid scarring but
was assured that Dr. Ofodile would perform a different type of procedure, which would give her the results she wanted without the risks she so des-
perately wanted to avoid. With that assurance, Ms. Hugh consented to the procedure. Unfortunately, shortly after the surgery her worst fears came
to pass. Ms. Hugh was left horribly scarred.

In a vigorous defense throughout the two week trial, Dr. Ofodile made a futile attempt to explain that he properly informed Ms. Hugh of all attendant
risks, that she was, in part, to blame for assuming the inherent risks of the procedure, and perhaps most shockingly, that Ms. Hugh’s visibly deformed
and scarred vagina was “normal.”

“The stark differences in Ms. Hugh’s before and after photographs belied this defense,” said Mr. Alonso. “We believe that the defendant’s testimony
that ‘if you lined up one thousand vaginas, there would be no evidence …that would suggest an injury’ angered the jury.”

After a short deliberation, the jury found that Dr. Ofodile indeed failed to appropriately advise Ms. Hugh about the risks of this type of procedure and
that he deviated from good and accepted medical practices in his surgical technique. They awarded Ms. Hugh $10 million for past pain and suffering,
and $50 million for future pain and suffering.

Ms. Alonso admitted that he was not surprised by the verdict but was astounded by the size of the award. “We were not expecting a number anywhere
near as substantial,” said Mr. Alonso, noting that the defense did not make any pretrial offers. “But the jury clearly recognized the gruesome nature of
Ms. Hugh’s injury and sent a message with their verdict. I’m just sorry for Allison that they had to.”

ParkerWaichmanAlonso.indd 1 4/16/10 10:29:45 PM
4/21/10 3:40:23 AM

-Continued from p12 tently compressed during a period that respiration and its response to stimuli. vention and/or Michael’s permanent need
employ generally accepted techniques that spanned 6:40 and 6:43. The defense’s Each category receives a grade of zero, 1 for residential care. Plaintiffs’ counsel also
would have allowed quicker resolution of medical experts agreed that those readings or 2, and the grades are totaled. A healthy claimed that Michael has to undergo about
the dystocia. established that the head could not have infant typically receives a total grade of 8, 15 years of intense therapy that will address
Plaintiffs’ counsel also claimed that the been delivered prior to 6:45. 9 or 10. A poor total grade often indicates a residual impairment of his speech. He
dystocia was a result of a nurse’s misman- Eng-Kohn acknowledged that a dys- that immediate life-saving attention must further claimed that Michael must undergo
agement of the delivery. He contended tocia occurred, but she contended that it be undertaken. Michael underwent two occupational and physical therapy. He con-
that Eng-Kohn was not present when was resolved during a period that spanned such tests, and his grades totaled 7 and 8. tended that Michael’s residual injuries will
the nurse initiated the pushing process. some two minutes. She claimed that she Eng-Kohn also contended that a nurse impair his career.
He claimed that the nurse’s actions had utilized two generally accepted techniques: a initiated the pushing process, and she Michael’s parents sought recovery of
not been approved by Eng-Kohn, and he McRoberts maneuver and the application of claimed that the process began prior to her Michael’s past medical expenses, the cost
argued that such a unilateral act would suprapubic pressure. She acknowledged that arrival. She contended that the pushing of his future rehabilitative therapy, the cost
have constituted a departure from accepted traction had been applied, but she claimed was promptly suspended when the dysto- of his future custodial care, his remaining
standards of medical care. He contended that merely minimal force was utilized. The cia was discovered. future medical expenses, his future lost
that Mary Swanson’s unsupervised pushing defense’s expert neurologist opined that The nurse contended that the pushing earnings, and damages for his past and
led to the development of the dystocia. excessive traction would have caused far process was not initiated until sometime future pain and suffering. They also pre-
Although the parties agreed that greater damage of Michael’s brachial plexus. after Eng-Kohn had arrived. She also sented derivative claims, but Ms. Swanson
Michael’s delivery was completed at 6:49 The defense’s medical experts disputed contended that Eng-Kohn authorized the ultimately withdrew her claim.
p.m., they provided conflicting reports plaintiffs’ counsel’s contention that moni- initiation of that process. Eng-Kohn’s counsel noted that Michael’s
of the timing of the prior aspects of the tors indicated that Michael was suffering first two years were not marked by any
delivery. Plaintiffs’ counsel claimed that distress. They contended that the fetus’s Injury: special treatment or abnormal diseases. He
Michael’s head was delivered at 6:40, and tachycardia was a reassuring sign that Plaintiffs’ counsel claimed that Michael claimed that Michael’s delays did not begin
he contended that the dystocia immedi- reflected stimulation of the fetus. The suffered asphyxia that caused damage of his until the second year of his life. The de-
ately followed. Thus, he argued that the experts also agreed that the monitors did brain’s stem. He contended that the damage fense’s expert neurologist opined that Mi-
dystocia spanned a period of eight or nine not provide any evidence that Michael caused residual injuries that include moder- chael’s developmental problems stemmed
minutes. Eng-Kohn contended that she suffered deprivation of oxygen. Defense ate delays of the development of the child’s from pervasive developmental disorder--an
did not arrive until 6:44. The hospital’s counsel noted that Michael’s birth was speech and ability to swallow. Michael unrelated autistic condition. The expert
records were not available, but Eng-Kohn’s followed by good Apgar grades, which are also suffers residual aspiration pneumonia. contended that the condition was a result
counsel claimed that monitors indicated cumulative measures of a newborn’s color, Plaintiffs’ counsel claimed that the latter of insufficient pre-birth development of
that the infant’s head was being intermit- its heartbeat, the tone of its muscles, its condition could necessitate surgical inter- Michael’s brain.
-Continued on p16

TOP 2009 VERDICTS BY CATEGORY
Animals
CASE DATE COURT TYPE OF ACTION PLAINTIFF'S COUNSEL AMOUNT
Liano v. Deserio 10/8 Ulster Supreme Animals: Man bitten while heeding girl- Michael H. Forrester of Silver, Forrester & Schisano $202,133
friend's order to grab her dog

Bruce v. Marchasani 8/12 Greene Su- Animals: Pit bull's owners ignored its vi- Steven H. Cohen of Finkelstein & Partners, L.L.P. $178,361
preme cious nature, plaintiff alleged

Frederick v. Ullery 6/5 Erie Supreme Animals: Veterinarian's attendant claimed Walter P. Seegert of Miserendino, Celniker, Seegert & Estoff P.C. $147,547
patron didn't muzzle vicious dog

Marchese v. Dekanchuck 10/8 Nassau Supreme Animals: Woman's finger bitten, broken Edmond C. Chakmakian of Law Offices of Edmond C. Chakmakian, P.C. $98,134
while separating fighting dogs

Buchta v. Prentice 10/29 Erie Supreme Animals: Suit: Owners ignored dog's Robert B. Nichols of Paul William Beltz, P.C. $41,500
propensity to chase motorcycles

Civil Rights
CASE DATE COURT TYPE OF ACTION PLAINTIFF'S COUNSEL AMOUNT
Sinkov v. Putnam 10/12 U.S. District Civil Rights: Pltffs: son should have been Kim P. Berg of Gould & Berg, LLP $757,000
Court, Southern placed on 24hr. watch at jail for suicide
District risk...

Germain v. County of Suffolk 7/7 U.S. District Civil Rights: Pregnant officer claimed denial Janice Goodman , and Gillian Thomas of Legal Momentum $50,000
Court, Eastern of light duty was discrimination
District


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