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