Law360, Philadelphia (February 10, 2017, 5:34 PM EST) --
Wednesday's record-setting $227 million settlement ending the civil
trial over a 2013 fatal building collapse in Philadelphia was
hastened by a harsh jury verdict that helped defang a 2011
liability reform statute that has hit plaintiffs hardest by
limiting their avenues for collecting damages.
The Fair Share Act put an end to joint and several liability in
the state, replacing it with a system in which civil defendants
found less than 60 percent liable are only responsible for their
proportionate share of a damages verdict. This posed a challenge in
a case where two defendants already convicted of involuntary
manslaughter and other charges for their role in the tragedy that
led to seven deaths and 12 injuries were essentially penniless.
Robert Mongeluzzi, who led the team of plaintiffs attorneys
trying the case, called the law a "high hurdle."
The law has had a sharp effect on what personal injury and
product liability cases get brought in Pennsylvania since it went
"A significant number of cases just become economically
nonviable because a wrongdoer will not be responsible to make up
the shortfall between the several share and the joint share,"
Shanin Specter, a founding partner at Philadelphia-based plaintiffs
firm Kline & Specter PC, told Law360 in 2013. "It alters the
With regard to the collapse on Market Street - where an unbraced
wall on a building undergoing demolition gave way and collapsed on
a neighboring Salvation Army store - there was no question that
litigation would ensue.
But Mongeluzzi said the critical point for the plaintiffs was to
pin the bulk of the liability on the Salvation Army and to prove
that the organization had acted intentionally. He and a number of
lawyers unfolded this argument over a trial that lasted more than
four months - the longest in Philadelphia history.
"The extraordinary length of this trial was very interesting. On
the one hand, plaintiffs don't want to waste the jury's time.
Plaintiffs don't want to fill the court with endless questioning on
the same subject," said Max Kennerly, who represents plaintiffs at
"But the big problem for the defendants was there was no wasted
testimony here. No needless repetition. There really was that much
problematic evidence," he added. "The more time they spent fighting
with each piece of bad evidence, the more that emphasized to the
jury the sheer volume of mistakes that were made."
When the jury returned, after only four hours of deliberation on
the question of liability, with a verdict finding that both the
Salvation Army and the building owner had acted with intentionality
and the Salvation Army was 75 percent liable, the defendants
hustled to the negotiating table.
"The Salvation Army was looking to see this sort of answer
before it started offering to contribute the number the plaintiffs
were looking to get," Kennerly said. "That finding removed whatever
barrier was still there to settlement."
According to Mongeluzzi, that outcome depended on the victims
demonstrating that there was real danger when the Salvation Army
received emails from the agent of the building owner urging the
organization to cooperate with the demolition process in May 2013,
less than a month before the collapse.
The victims succeeded in securing a photo a building inspector
had taken from the roof of the adjacent Mutter Museum, which looks
onto both the Salvation Army and the building under demolition,
from before the collapse. They then tapped construction expert
Stephen Estrin to annotate the photo, and he flagged 20
Occupational Safety and Health Administration violations, including
the unbraced wall.
"It was really important for us to claim that the Salvation Army
should have done something," Mongeluzzi said. "That if they had
actually investigated, they would have found something."
Mongeluzzi found an opportunity to break this down into a point
the jurors could relate to when he was cross-examining the
defense's expert on the retail industry. Both the defense and
plaintiffs retail experts had the most experience in evaluating
supermarkets, where the most common cause of injury is a spill on
"This is no different than a shopper coming up to someone in
supermarket and saying, "There's a spill in Aisle 4," he said of
the warning, adding that he cupped the microphone in front of the
jurors to mimic the sound of a PA system. "There's a spill in Aisle
4. Vinny, cleanup in Aisle 4."
Mongeluzzi said he reiterated this point on later
cross-examinations and at closings. The Salvation Army admitted to
sending out an architect, who took pictures of the store itself
rather than the adjacent building.
"They never sent anyone to Aisle 4," he said. "They sent him to
Aisle 5, when the spill was in Aisle 4."
For Mongeluzzi, one of the crucial decisions in front of the
lawyers for the victims was whether to cross-examine the officers
and employees of the Salvation Army. This revealed that the
Salvation Army leadership had been informed of the dangers the
demolition posed, but the employees had not.
"We had a clear theory about the haves and the have-nots that
was not being related on a socioeconomic basis but on the basis of
information. I think our argument - 'How dare you? How can you play
God with other people's lives?' - was resonant," he said. "The
people who had the information were in West Nyack, New York. Those
who didn't get the information were right here."
The weight of the overall undertaking bears comparison to
another case Mongeluzzi litigated over the 2003 collapse of a
parking garage at the Tropicana Casino Resort in Atlantic City, New
Jersey, which killed four workers and injured about 30 others. That
case was settled before trial in 2007 for $101 million.
While the present case involved approximately 100 days of
depositions, 125 motions in limine, over 20 summary judgment
motions and 20 liability experts, the New Jersey case featured 350
days of depositions, almost 40 plaintiffs and 10 main groups of
defendants. Both collectively took the same amount of manpower for
the plaintiffs - tens of thousands of hours.
Mongeluzzi estimated the costs for the liability phase in the
Philadelphia case at $2.5 million and another $500,000 for damages.
The Tropicana case led to liability costs of $3 million and damages
costs of $3.5 million
"They were both probably the two most complex cases in the
region over the past 15 years," he said.