New Jersey Verdicts

Plaintiff(s):

Eric Austin (Male, 50 Years), 

Maria Austin (Female)

Plaintiff Attorney(s):

James S. Lynch;
Lynch Lynch Held Rosenberg, P.C.;
Hasbrouck Heights,
NJ,
for
Eric Austin, Maria Austin

Plaintiff Expert(s):

Reza Momeni; M.D.; Eyelid Surgery; Berkeley Heights,
NJ called by:
James S. Lynch ■ Stan Smith; Ph.D.; Economics; Chicago,
IL called by:
James S. Lynch ■ Brian Greenwald; M.D.; Physical Rehabilitation; Newark,
NJ called by:
James S. Lynch ■ Harold Bialsky; D.C.; Life Care Planning; Jersey City,
NJ called by:
James S. Lynch ■ Robert Sica; Ph.D.; Neuropsychology; Neptune,
NJ called by:
James S. Lynch ■ Stephen Estrin; C.E.; Construction Safety; Osprey,
FL called by:
James S. Lynch

Defendant(s):

M&M at Morris Plains LLC, 

Pyramid Contracting Corp., 

Morris Plains Contracting LLC, 

French & Parrello Associates, PA

Defense Attorney(s):

Frank J. Kontely;
Hoagland, Longo, Moran, Dunst & Doukas, LLP;
New Brunswick,
NJ,
for
M&M at Morris Plains LLC, Morris Plains Contracting LLC ■ Jerald F. Oleske;
Lebowitz, Oleske, Connahan & Kassar, LLC;
Florham Park,
NJ,
for
French & Parrello Associates, PA ■ Gina M. Apostolico;
O´Toole Fernandez Weiner Van Lieu, LLC;
Verona,
NJ,
for
Pyramid Contracting Corp.

Defendant Expert(s):

David Stein;
Vocational Assessment;
Springfield,
NJ called by:
Jerald F. Oleske ■ David Mahalick;
Neuropsychology;
Maplewood,
NJ called by:
Jerald F. Oleske ■ William Marletta;
Safety;
West Islip,
NY called by:
Jerald F. Oleske

Insurer(s):

Penn National Insurance Co. for French & Parrello Associates, PA

On May 3, 2013, plaintiff Eric Austin, 50, a laborer employed by Danco General Contracting, was helping to remove copper and brass piping from a building demolition site on Tabor Road in Morris Plains. He had climbed a catwalk when, for unknown reasons, he fell over the rails and onto concrete about 18 feet below. He claimed traumatic brain injuries. Austin and his wife sued French & Parrello Associates, PA, alleging that the company was responsible for ensuring safety at the demolition site and was negligent by failing to create and follow a fall-protection plan, in violation of OSHA requirements. Property-owner M&M at Morris Plains LLC, general contractor Morris Plains Contracting LLC, and asbestos subcontractor Pyramid Contracting Corp. were initially named as defendants but agreed to a confidential settlement prior to trial. However, M&M and Morris Plains Contracting remained on the verdict sheet. Pyramid Contracting did not appear on the verdict sheet due to a successful directed verdict by counsel for the Austins. The Austins’ construction-safety expert testified that Morris Plains LLC was responsible for overall site-safety but that French & Parrello was responsible for safety planning and supervision for Danco employees. He opined that French & Parrello’s failure to provide a fall-protection plan and adequate supervision caused the accident. Counsel for French & Parrello Associates denied liability, arguing, with support from testimony from a construction safety expert, that the company was hired to manage environmental safety, rather than general site safety. Austin, as a laborer with 27 years of experience, was negligent in choosing to climb the railing without fall protection, counsel claimed.

Austin was taken by ambulance to a hospital emergency room, where he was put into an induced coma with intubation for one month. He was diagnosed with five skull fractures and severe traumatic brain injury. He sustained nerve damage from the skull fractures, which initially prevented Austin’s left eye from closing. Austin underwent a ventriculostomy (a procedure in which a monitor is surgically placed inside the skull to measure pressure on the brain). It was ultimately determined that he was not a candidate for further brain surgery. Austin was transferred to the JFK Johnson Rehabilitation Institute for three weeks. He underwent subacute rehabilitation and began occupational and physical therapy. He was transferred to JFK Hartwyck for approximately one month of in-patient rehabilitation. Following his release, Austin received more than one year of out-patient cognitive rehab and physical therapy to treat cognitive issues and balance problems. Austin complains of vision impairment, which require prism eyeglasses. He sustained severe hearing loss in both ears and needs hearing aids. His traumatic brain injury left him with mild to moderate difficulties with decision making, memory, and the ability to focus. Although Austin can perform many activities of daily living, it is believed he requires supervision due to his diminished decision-making ability. He is believed to be permanently disabled and has not returned to work. Maria Austin brought a claim for loss of consortium and loss of services. She stated that her husband’s condition and personality changes have put strain on their marriage. Austin’s treating brain-injury specialist confirmed that he had sustained a severe brain injury and will require supervision and further counseling. Austin’s treating neuropsychologist testified that he had reached maximum medical improvement in 2014. An economic expert retained by the Austins projected the current value of his future medical care and lost wages. He testified that future medical care, including a home health aid, would total $3,242,000. He calculated Austin’s lost wages up to age 67 at $1,074,000. The Austins’ vocational rehabilitation expert testified that Austin is permanently disabled and unable to work. Counsel for French & Parrello Associates disputed the extent of the Austins’ alleged injuries. Counsel argued that Austin’s cognitive impairments were mild. Counsel further argued that Austin’s history of drug and alcohol abuse and his history of depression and ADHD might have contributed to his cognitive difficulties. Counsel noted that Austin is able to drive a car and function on his own. The defense’s expert neuropsychologist provided a report which described Austin’s brain injury as mild. The defense’s vocational expert concluded in a report that Austin could continue to work in fields outside that of construction labor.

The jury found that French & Parrello Associates was 73 percent liable for the accident and Austin was 12 percent liable. It found that M&M at Morris Plains LLC and Morris Plains Contracting LLC were jointly 15 percent liable. The Austins were awarded $8.29 million in damages, which was reduced in light of Eric Austin’s comparative negligence to $7,296,137.

Eric Austin: $475,064 Personal Injury: Past Medical Cost; $3,242,000 Personal Injury: Future Medical Cost; $1,074,000 Personal Injury: Future Lost Earnings Capability; $3,000,000 Personal Injury: Past Pain And Suffering; Maria Austin: $500,000 Personal Injury: Past Loss Of Consortium

Actual Award:

$7,296,136.70

Judge:

Vincent LeBlon

Demand:

$4,000,000

Offer:

$400,000

Trial Length:

11
 days

Trial Deliberations:

195
 minutes

Jury Vote:

unanimous on all questions

Jury Composition:

five men/ two women

This report is based on information that was provided by plaintiffs’ counsel. Defense counsel did not respond to the reporter’s phone calls.