$4,400,000 – Brain-Injury Case

A local construction company has reached a $4.4 million settlement with a former construction worker who said he suffered permanent brain damage after he fell 40 feet down multiple flights of an open stairwell structure while trying to swat away a bee.

White v. Philomeno and Salomone Builders was in its fourth day of trial before Philadelphia Common Pleas Judge James Murray Lynn when the parties agreed to the settlement, according to attorneys involved in the case.

Defense counsel John Snyder of Rawle & Henderson said the trial was expected to go on for another several days at the least; the plaintiff’s side had not yet rested when the settlement was reached, he added.

Plaintiff’s attorney Robert Mongeluzzi of Saltz Mongeluzzi & Bendesky said that though the case settled without a verdict, there was one significant decision rendered by Lynn during the truncated trial process.

Mongeluzzi, who represented Ronald White along with partner David Kwass, said that in White, he sought the court’s permission to show the jury videotaped excerpts of depositions of key defense witnesses during the plaintiff’s opening statement. Mongeluzzi said that last year, Philadelphia Common Pleas Judge Gregory E. Smith also signed off on the use of the tactic in a separate litigation that ultimately was settled.

The defense in White had argued that allowing the jury to see the videotaped excerpts would be prejudicial, but Lynn found that the opposite was true, according to Mongeluzzi.

He said Lynn reasoned that the least trustworthy way for a jury to learn about a witness’s testimony is through description by counsel; the next best way, a transcript; and the most preferable method, technology permitting, would be video.

“I believe it’s the wave of the future. It’s cutting edge and I think it’s absolutely compelling evidence – regardless of whether it comes in a plaintiff’s, or a defendant’s, opening,” said Mongeluzzi. “Most jurors, quite frankly, don’t trust either lawyer when [he or she] stand[s] up.”

According to court papers, White claimed that as a result of the head injury he suffered during the August 2004 accident at a Gwynedd Valley worksite, his abilities to taste, smell, maintain his balance and keep his emotions in check have all been seriously compromised. His left hand was also badly damaged in the fall, he added.

White further asserted that his “psychological status, limited education, and low-average intelligence” would hamper his efforts to gain steady employment now that he can no longer work construction.

He accused the defendants – Philomeno and Salomone Builders and their related corporate entities – of failing to erect protective barriers around the stairwell hole through which he fell while working on the top floor of the partially completed Gwynedd Valley building.

But the defense responded in court papers that White was at least partially to blame for the accident: as a carpenter, it was his duty to be cautious around the worksite and aware of any dangerous spots around him, they said.

From the outset of the case, White had demanded $5 million, the combined total of the defendants’ policies limits under its primary and excess coverage with AIG Inc.

A jury was picked on Sept. 22, a Friday, and the plaintiff’s side began the presentation of its case the following week, the attorneys said. The key witnesses to take the stand during the ensuing trial days were doctors called as expert witnesses by White.

Snyder said that on cross-examination, the defense asked the doctors questions about cognitive and psychological testing performed on White prior to his accident, and attempted to show the jurors that White’s damages from the accident were not as severe as he claimed.

White’s co-counsel Kwass said the defense also brought up the fact that although White claimed his injuries prevent him from engaging in his preferred hobbies of weightlifting and playing pick-up sports games, he had nevertheless been hitting the gym several times a week in recent months, and was able to use free weights.

Snyder said that on Sept. 28, the fourth day of trial, the parties had a settlement negotiation and plaintiff’s counsel offered to lower White’s demand down from $5 million.

Snyder also said that AIG had brought him in as defense counsel in June of this year. Up until that point, the defendants had been represented by Laurence Granite of Marks O’Neill O’Brien & Courtney.

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