After parking garage collapses, attorneys join together to help injured workers

Competition in the Atlantic City, New Jersey, casino world is fierce. So when Tropicana Casino and Resort wanted to expand its property to add a new hotel, retail center, and parking garage, it had to move fast to complete the project before another casino finished its own renovation. Unfortunately, the workers building the parking garage did not know that it was not being constructed in accordance with the design. Nor did they know when they left for work one morning in October 2003, that within hours, four of them would be dead and many more would be severely injured.

On that day, steel workers James Bigelow, a 29-year old with a wife and an infant son, and Michael Wittland, a 53-year-old close to retirement who had one of his sons working with him, were assigned to work in the stairwells ‘on the lower floors of the garage. For steel workers, who often have to work high up in dangerous situations, an indoor job in a stairwell is safe in comparison. At the same time, cement finishers 42-year-old Robert Tartaglio, who had a wife and two small children, and Scott Pietrosante, a relative newcomer at 21, were working on the fifth floor.

As cement workers were pouring concrete on the eighth floor, a large section of the garage suddenly collapsed, sending five levels crashing down on all of the workers below. James, Michael, Robert, and Scott, who is survived by his father and brother, were killed instantly.

About 36 other workers were injured, including Michael’s son Ed, who suffered a neck fracture and brain damage.

To find out what they needed to do to obtain reimbursement for medical costs and other expenses, the injured workers and the families of the four who died soon contacted attorneys with experience in workplace injury cases. AAJ member Paul D’Amato, of Linwood,

New Jersey, who has practiced in the Atlantic City area for decades and seen many workers get hurt in casino construction projects, took several cases. “There have been so many prior accidents because there’s always a rush to get casinos open, and we had a history of catastrophic injuries. This was the culmination. It was absolutely horrendous.”

AAJ members Robert Mongeluzzi and Larry Bendesky, along with their associate V. Paul Bucci II, all of Philadelphia, and Michael Maggiano, of Fort Lee, New Jersey, all of whom have extensive experience in workplace injury suits, also felt compelled to help the workers.

“In this case, we had guys who never came home again, workers whose careers ended, families whose lives were changed forever,” says Mongeluzzi. “It’s a small community down there, and it was a devastating insult and blow to the whole area.”

Together with 16 other attorneys hired by workers, the attorneys decided to join forces and create a litigation group to combat the many defendants involved. “We had to go up against 16 defendants, all funded by multimillion dollar companies. We decided we were going to work as a team,” says Mongeluzzi. The group agreed to use liability experts collectively and share the costs. The attorneys divided into trial and non-trial teams and set to work on a case that would take almost four years of their time and generate more than 23,000 court filings.

The team sued several parties, including Tropicana, the general contractor, the concrete and rebar placement subcontractors, the inspection agency, the manufacturer of the precast concrete, the structural engineers, the architects, and members of the project safety team. The plaintiffs generally alleged the garage lacked three necessary steel-to-steel connections that were supposed to hold the floors up: (1) the steel bar connecting the bottom of the floors to the side columns, which was in the structural designs but never got built into the garage; (2) the steel connection from the top of the slabs to the columns, which defendants replaced with a weaker steel mesh that did not properly connect; and (3) steel running from column to column, which also did not fully connect. An investigation by the U.S. Occupational Safety and Health Administration confirmed that these problems weakened the support system, causing the building to fall. “To make it simple, the floors weren’t connected to the walls,” explains Mongeluzzi.

Although the obvious cause of the collapse might have made the case appear to be an easy one, the attorneys faced many obstacles. The defendants split into essentially two groups-the construction defendants and the design defendants-and each group blamed the other. Because many of the design defendants had little or no insurance in a state that does not have joint and several liability, it was crucial that the plaintiffs be able to prove that the construction defendants were liable as well, which was difficult because even the plaintiffs’ experts confirmed that the design did not meet code requirements.

Through hundreds of depositions and discovery documents, the plaintiffs were able to show that the construction defendants were responsible for both the construction and the design safety. “Unlike other construction projects, where the owner has little involvement,” D’Amato says, “casinos develop an in-house staff of construction engineers and managers.” In fact, one of Tropicana’s executives, whose title was vice president of design and construction, had to approve all changes to the erection of the steel.

The litigation team also hired highly regarded experts in their respective fields, including W. Gene Corley, a structural engineer from Chicago, who wrote much of the code on concrete reinforcement. Corley felt that, although the design did not meet code standards, the building would not have collapsed had it been built properly. “Corley was steadfast in his belief that the building would have held,” says Bendesky. “We were able to show construction errors, lack of safety, and that the general contractor’s contract made it responsible for both construction and design.”

During discovery, the attorneys also became involved in several declaratory judgment actions filed by the general contractor’s insurers. Tropicana had a primary policy on the project for $25 million, and the insurers for the general contractor’s two policies argued that Tropicana’s insurer was solely responsible. As a result, the lawyers found themselves in the middle of an insurance dispute, trying to obtain coverage for whatever money their clients might be awarded. After the court-the same court deciding the garage collapse litigation ruled the insurers had to provide coverage, the plaintiffs gained leverage in settlement negotiations.

Finally, in April 2007, two months before trial was to begin, the parties reached a global settlement with a total value of $101 million, including $82.5 million in cash, continued payment of each injured worker’s accident-related medical expenses, and a waiver of all workers’ compensation liens. An arbitrator determined each plaintiff’s confidential share in July. Defendants’ individual contributions are confidential.

The attorneys feel this case presents an important lesson for plaintiffs’ counsel. “One of the greatest things was not only truly representing people who needed our help, but the tremendous effort among the plaintiffs’ attorneys,” says Bendesky. Mongeluzzi agrees. “Many times in a massive disaster, there are egos and power plays. But here, it was the blueprint for a collaborative effort. We worked together, and it paid off for our clients, which was great.”

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