On the eve of trial, a $3 million settlement was reached last week in a wrongful death suit brought by the estate of a road construction worker who was eviscerated and killed when he was run over by a 36-ton cement mixer.
Attorneys Robert J. Mongeluzzi and John T. Dooley of Saltz Mongeluzzi & Bendesky said experts would have testified at trial that Robert Boyle was conscious and in excruciating pain for about 10 minutes before he died from massive bleeding.
Mongeluzzi said that because Boyle was 59 years old and a modest wage earner, the evidence of his consciousness and intense pain was a critical factor in establishing the value of the case.
As a result, Mongeluzzi said, Boyle’s case also illustrates the negative impact that would result from recent proposed legislation to impose a cap on jury awards for pain and suffering.
In some cases, Mongeluzzi said, a damages cap would act as a strong disincentive to a lawyer taking an otherwise strong case if the pain and suffering was a significant component in the case’s value.
According to court papers in Boyle v. JDM Materials Inc., Boyle was working as a flagman for Glasgow Inc. on July 23, 2001, and was in a “cattle chute,” a temporary section of highway formed by concrete barriers.
Anthony Mathews, an employee of JDM Materials Inc., was driving the 36-ton cement mixer and was backing it up into the 10-foot-wide cattle chute at about 15 mph when he ran over Boyle, stopped, and then pulled forward to get the truck off him.
Boyle suffered crushing injuries to his pelvis, had his left leg almost completely ripped off his body and extensive injuries to his internal organs.
Dr. Barbara C. Wolf, a forensic pathologist, said in an expert report that Boyle “experienced at least five to ten minutes of conscious pain and suffering prior to losing consciousness from bleeding to death from extensive blood loss.”
Wolf said Boyle suffered no injuries that would have rendered him unconscious before his blood pressure dropped due to the bleeding.
Mongeluzzi said Boyle’s case was one of the worst cases of suffering he has ever seen in his years as a personal injury lawyer specializing in construction cases.
“I’ve never seen worse pictures,” Mongeluzzi said.
The case settled after a mediation before Ronald Sherr of ADR Options.
But Mongeluzzi said one of the critical steps that led the way to the mediation table was a pretrial conference before Philadelphia Common Pleas Judge Howland W. Abramson.
With representatives from the insurance company present, Mongeluzzi said, Abramson told the defense that he would be inclined to allow at least some of the horrific photographs into evidence if the case went to trial.
Dooley said the defense was counting on winning its motion to keep the photographs out, but became more willing to discuss settlement after hearing from the judge that it would likely lose that motion.
On the issue of liability, Mongeluzzi and Dooley argued in court papers that the case was “indefensible” and that the conduct of the driver, Mathews, was “outrageous” because he reversed the truck at a relatively high rate of speed into the cattle chute despite knowing that Boyle was in it.
Plaintiff liability expert Robert S. Sleece said in his report that Mathews “exercised outrageous judgment in backing up so fast (10-15 mph) and maintaining same speed until he was too close . . . to Robert Boyle to stop in time to avoid running him over.”
Sleece opined that Mathews “should have waited for Robert Boyle to get out of the cattle chute before starting to back up. Given he did not wait, he should have proportionately decreased his speed backing up as he got closer. . . . Instead, he maintained 10 to 15 miles per hour (10-15 mph) until he was almost upon Robert Boyle.”
Mathews and JDM Materials Inc. were represented by attorney John T. Donovan of Rawle & Henderson.