$14,000,000 – Roofer Suffered Traumatic Brain Injury

A man whose skull was crushed while he was doing roofing work at a local hospital has settled with a product manufacturer and seller for more than $14 million.

Robert J. Mongeluzzi Larry Bendesky

Charles D. Phillips and his wife, Ramona, filed a lawsuit against Aeroil Products Co. Inc., Allied Building Products Corp. and Mercy Fitzgerald Hospital Inc. after a hoist made by Aeroil fell from the roof above where Phillips was working and crushed his skull into and through his brain.

Allied agreed to pay $14 million to compensate Phillips for his past and future medical expenses, lost wages, pain and suffering and loss of life's pleasures.

Aeroil has a $2 million insurance policy which currently has two other claims in addition to Phillips' on it. Phillips will receive an unknown portion of that policy.

Saltz Mongeluzzi Barret & Bendesky partners Robert J. Mongeluzzi and Larry Bendesky along with Daniel C. Linn of Aversa & Linn represented Phillips.

Mongeluzzi said he believed the settlement to be the largest reported single-plaintiff settlement in Philadelphia's history.

David F. White of Kelly McLauglin & Foster and Thomas P. Wagner of Rawle & Henderson represented Allied, and Kevin J. O'Brien of Marks O'Neil O'Brien & Courtney represented Aeroil White was retained by Allied's primary insurer Liberty Mutual. Wagner was retained by Allied's excess carrier St Paul.

John A. Fitzpatrick of Mylotte "David & Fitzpatrick represented the hospital, but Mongeluzzi said he did not "seriously pursue anything against them."

Phillips originally went to Linn, and Linn said that within 24 hours he contacted Bendesky because of his firm's experience in construction cases.

I don't think: anyone could have brought this case to the resolution that it came to as quickly as it did, with such efficiency as [Mongeluzzi and Bendesky]," Linn said.

The case settled before the pre-trial conference.

A HOISTING DEVICE
The accident happened on Oct. 22, 1997, when Phillips, who was employed by Battisto Development Roofing Co., was doing work on the roof of Fitzgerald Mercy Hospital.

Phillips was working on an eighth-floor roof and had just cinched four rolls of fiberglass roofing paper weighing 160 pounds onto a rope extending from the pulley of a hoisting device. The materials were to be hoisted up to workers on the l0th-floor roof.

The hoisting device was the Aeroil RB-3 Rigid Beam Hoist, and it was positioned on the 10th floor.

The hoist needed to be counter-weighted, and in this instance, one of Phillips' co-workers had seemingly secured the hoist by using three five-gallon cans of roofing cement to provide the counterbalanced weight

In the process of hoisting the roofing paper up to the 10th floor, the rolls fell and caused the hoisting device to be catapulted over the edge of the 10th floor roof, falling onto Phillips, striking him directly on the head.

In 1987, Aeroil redesigned the hoist to include a permanent ballast box which would contain eight concrete blocks. The hoist was later redesigned not to include the ballast and instead had a "cradle-type tail." It was on this tail part of the hoist where the cans of cement were placed.

Phillips' lawyers contended that had the hoist been provided with the ballast, the hoist would have been properly counter-weighted and would not have caused the accident.

"So, our theory was that the ballast should have been supplied as standard with the product" Mongeluzzi said.

Police later found the operating instructions of the hoist rolled inside one of the tubes.

Mongeluzzi pointed out that the manufacturer's directions say that the ballast is provided with the hoist and no other material should be used as counter-weight.

"Do not use roofing material or any ballast other than the filled blocks provided" the directions said. "Insufficient ballast weight will permit the beam to fall off the roof and could result in severe injury or death."

"The problem is that they don't provide them," Mongeluzzi said, "so they say 'never use this without the safety ballast,' but they don't provide the safety ballast"

Mongeluzzi said the single most critical piece of testimony in the case came from Aeroil's national sales manager.

"I asked him flat out - 'If this safety equipment is so vital, why isn't it standard?'" Mongeluzzi said. "Essentially he said that if they had added that [part], it would have raised their price point, meaning it would raise the price. They would sell less product, and they wouldn't make as much money."

He said their theme throughout the case was "Safety is not an option."

Basically, when the workers were working on the hospital roof, they realized that they would need a hoist. They contacted Allied, and Allied delivered the equipment. Allied, however, did not inform Phillips' company about the safety options.

Aeroil said Allied had a duty to inform the buyer of the safety option but had not done so. In his deposition, a representative from Alfred said he wasn't aware of the safety option.

USE OF VIDEOTAPE
Phillips currently resides and receives complete care at the rehabilitation center ReMed Recovery Care Center in Phoenixville. He has tremendous memory problems, is primarily wheelchair bound and has paralysis in one of his legs and one of his arms.

"His skull was crushed in so many pieces, that one of the doctors, in his operative reports, said "I put his skull back together like it was a jigsaw puzzle,"' Bendesky said

And to accurately portray how damaged his skull was, the lawyers had a model made of Phillips' skull after the accident on the basis of CT scans, X-rays and medical records. The model was displayed in what the lawyers deemed their "settlement tape."

The tape, the lawyers said, played "a gigantic role" in the case.

The tape included testimonials from Phillips' family, including his mother and his wife and pictures of him before the accident smiling and doing normal things like walking on the beach. The video also included video of Phillips when he was in the hospital and showed him undergoing rehabilitation.

Experts appeared as well, detailing how Phillips was treated and what his future treatment would entail. The video also had the depositions of some of the defense witnesses, including the sales rep who said it would have cost Aeroil too much to sell the hoist with the permanent safety feature.

The idea for the tape came from Bendesky and cost about $25,000 to make. Mongeluzzi said their total costs at this point were in excess of $100,000 and could have well exceeded $200,000 if it went to trial.

"My thinking was to make videotapes of Chuck along the way to show how devastating his injuries were and how hard he was working on his rehabilitation to give the jury an idea of where he was and where he's come to," Bendesky said.

Mongeluzzi said that it was vital in getting Phillips' case across to the decision-makers.

"It is the single most effective way to communicate with the people who have the money," Mongeluzzi said.

'To put a face to the reports is invaluable," Linn said.

Mongeluzzi said their goal was to ensure Phillips would have the best medical treatment throughout his lifetime and that his wife and children would be taken care of. Phillips has two children, and his wife has two children from a previous marriage.

The case went to mediation, and retired Allegheny County Judge Dave Murphy handled the case. Murphy named the price, and both sides had until Thursday to notify the judge if they accepted the deal. Both sides accepted, and the settlement was finalized Thursday.

The $14 million from Allied is a cash settlement. The amount of the money Phillips will receive from Aeroil has yet to-be determined.

White, who represented Alfred, said he didn't think the tape played a vital role in the decision to settle the case.

"At an early point in discovery, all the lawyers got together and decided that it was in the best interest of our clients to try and resolve the matter," White said.

"We're always looking to do what is in the best interest of our clients, and sometimes that means going to trial, and other times, settling early.

Related Attorneys

Robert J. Mongeluzzi

Office: 215-575-2989

Larry Bendesky
Larry Bendesky Managing Shareholder

Office: 215-575-2952
Mobile: 610-639-3221