Pennsylvania Verdicts

Plaintiff(s):

Rowan J. Straw (Male, 4 Years), 

Thomas P. Straw (Male, 42 Years), 

Jennifer M. Straw (Female, 38 Years), 

Estate of Elijah C. Straw (Male, 6 Years)

Plaintiff Attorney(s):

Neil R. Rosen;
Rosen Louik & Perry, P.C.;
Pittsburgh,
PA,
for
Rowan J. Straw, Thomas P. Straw, Jennifer M. Straw, Estate of Elijah C. Straw ■ Jon R. Perry;
Rosen Louik & Perry, P.C.;
Pittsburgh,
PA,
for
Rowan J. Straw, Thomas P. Straw, Jennifer M. Straw, Estate of Elijah C. Straw ■ Renee A. Metal;
Rosen Louik & Perry, P.C.;
Pittsburgh,
PA,
for
Rowan J. Straw, Thomas P. Straw, Jennifer M. Straw, Estate of Elijah C. Straw

Plaintiff Expert(s):

William Reed; Ph.D.; Vocational Rehabilitation; Pittsburgh,
PA called by:
Neil R. Rosen, Jon R. Perry, Renee A. Metal ■ Yeshvant Navalgund; M.D.; Toxicology; Greensburg,
PA called by:
Neil R. Rosen, Jon R. Perry, Renee A. Metal

Defendant(s):

Kirk A. Fair, 

John Robert Fanto III, 

Pittsburgh Lubes Inc., 

Golon Masonry Restoration Inc.

Defense Attorney(s):

Andrew R. Benedict;
Weber Gallagher Simpson Stapleton Fires & Newby LLP;
Philadelphia,
PA,
for
Golon Masonry Restoration Inc. ■ Robert A. Arcovio;
Margolis Edelstein;
Pittsburgh,
PA,
for
Kirk A. Fair ■ None reported;

for
John Robert Fanto III, Pittsburgh Lubes Inc.

Defendant Expert(s):

Gary Lage;
Alcohol Toxicology;
Ewing,
NJ called by:
Andrew R. Benedict ■ Douglas King;
Economics;
Pittsburgh,
PA called by:
Andrew R. Benedict

Insurer(s):

Selective Insurance Group Inc. for Kirk A. Fair and Golon Masonry Restoration Inc.

On May 1, 2012, plaintiff Thomas Straw, 42 a professional photographer and Web site designer, was rear-ended by a pickup truck on Route 28, in Tarentum, killing his 6-year-old son, plaintiffs’ decedent, Elijah Straw. Elijah was sitting in the right rear passenger’s side of Straw’s 2004 Pontiac Vibe sport utility vehicle. The Ford F-250 pickup truck was driven by Kirk Fair, of Golon Masonry Restoration Inc. Straw’s wife, plaintiff Jennifer Straw, 38, was a front-seat passenger, and their other son, plaintiff Rowan Straw, 4, was sitting in the left rear passenger’s side. Thomas and Jennifer Straw suffered broken vertebra, broken ribs, and concussions, and Rowan suffered a broken femur and suffered seizures. Elijah was pronounced dead at the hospital. According to Straw, his vehicle malfunctioned, causing the hood to be released upward, which prompted him to bring his vehicle to a controlled stop in the center lane of Route 28, just prior to Exit 10. At that location, the road was a four-lane highway with three travel lanes. Straw claimed that he observed no other vehicles traveling in the lane directly behind him, and the left and right lanes were open. After stopping the vehicle and activating his hazard lights, Straw again checked his rear-view mirror, at which time he saw Fair’s truck barreling toward his vehicle. Fair allegedly did not stop or attempt to move into any of the three open lanes on either side of Straw’s vehicle; instead, he smashed into Straw’s vehicle at a high rate of speed. Fair pleaded guilty to homicide by vehicle, four counts of recklessly endangering another person, and other traffic violations. He was sentenced to six to 23 months’ imprisonment and 10 years’ probation. Straw was not cited in any manner for the accident. The Straws sued Fair and Golon Masonry Restoration on claims of negligence. Fair and Golon brought in as third-party defendants Pittsburgh Lubes Inc. (where Straw’s vehicle underwent an oil change), John Robert Fanto III (the owner of an auto-mechanic business that inspected Straw’s vehicle about six months prior to the accident), and Napa Automotive (which, two months prior to the accident, determined that, despite its hood sticking up a quarter of an inch, the vehicle was safe to drive), all of whom were dismissed via summary judgment. According to the Straws’ counsel, downloaded data from Fair’s truck indicated that he was driving approximately 71 miles per hour for at least 20 seconds prior to impact. (The speed limit was 55 miles per hour.) The data demonstrated that Fair did not apply his brakes until approximately .6 seconds prior to impact when the truck was approximately 58 to 59 feet from Straws’ vehicle. At impact, the truck was traveling between 54 and 64 miles per hour. Pursuant to the accident reconstruction conducted by the state police, Fair would have been able to see Straw’s vehicle at approximately 2,058 feet prior to impact, if he had been looking at the road. Fair admitted that he was not looking at the road, but instead was fumbling with binders that had fallen to the floor. The Straws’ counsel maintained that Fair had at least 20 seconds after observing the Straws’ vehicle and over 2,000 feet of visibility to bring his truck under control and avoid hitting the Straws by either stopping the truck or moving the truck into one of the three open lanes available to him. Fair, who was taking the narcotic buprenorphine, failed three portions of a field-sobriety test. (The officers allegedly found insufficient probable cause to obtain blood for testing.) The Straws’ counsel asserted that Fair did not have a valid prescription for the drug, which has a half-life of 24 to 60 hours, and Fair violated the drug’s label, which warns users not to drive or operate heavy machinery. The Straws’ expert in toxicology testified that Fair would have been impaired at the time of the accident. The Straws’ counsel asserted that Golon permitted Fair to drive a company vehicle, despite Fair’s criminal record of a DUI in 2008, and hired Straw while his driver’s license was suspended due to the DUI. In his deposition testimony, Golon’s owner and president said that, should an employee’s driving record reveal that he had a past history of having driving under the influence, the employee would be forbidden from ever driving a Golon vehicle. Per Golon’s own policies and procedures, Fair should not have been driving at the time of the accident, the Straws’ counsel asserted. The defense faulted the Straws for ignoring the longstanding history of problems with the hood of their vehicle and the fact that multiple automotive repair facilities failed to fix the problem prior to the accident. The defense further faulted Straw for stopping his vehicle in the middle of a busy highway. The defense’s expert in toxicology opined that Fair was not impaired at the time of the accident, as demonstrated by his passing the field-sobriety tests, and could not have been since, as Fair admitted, he had not taken the drug more than 24 hours prior to the accident. Golon maintained that, even if Fair was in the course and scope of its employment, it had no responsibility for the accident.

Emergency medical technicians detected a heartbeat and a pulse for Elijah, who was airlifted to a hospital. He was pronounced dead an hour-and-half later. The Straws were taken by ambulance to a hospital. Thomas Straw was diagnosed with a concussion, an fracture of lumbar vertebra L4, and a rib fracture. He was discharged four days later. Over the next six months, he underwent extensive physical and cognitive therapies to address severe headaches, long- and short-term memory loss, and aphasia. He sought damages for past and future pain and suffering. Jennifer Straw was diagnosed with a concussion, about five rib fractures, and a fracture at thoracic vertebra T3. After a few days hospitalized, she underwent a course of physical and cognitive therapies for a few months. She sought damages for past and future pain and suffering. Rowan was diagnosed with a fracture to his right femur and with seizures. Both legs were entirely casted (for six weeks) and he was discharged one week later. He treated with medication for seizures, which later dissipated. The child also received some physical therapy and treated with counseling for the next few years. He sought damages for past and future pain and suffering. The crux of the Straws’ treatment was the couple’s extensive psychiatric treatment to treat their major depressive disorder, which they continued to treat at the time of trial and will do so indefinitely. In addition to ongoing counseling, they treated with maximum-strength mood enhancers. The Straws talked about their attempts to remain a unified, happy family, in spite of Elijah’s death. They talked about their loss and how they wake up in the morning feeling happy, but the feeling wears off after 10 seconds upon realizing their son is gone. (In the years since the accident, the Straws had another child, a daughter.) The Straws each sought damages for past and future emotional distress. Elijah’s estate sought to recover about $4 million in future lost earnings. The estate’s expert in vocational rehabilitation based the calculations on the Straws’ education, which included master’s degrees. The estate further sought to recover damages under the Wrongful Death and Survival Acts. The defense counsel maintained that the Straws made full recoveries form their physical injuries and their emotional injuries were not as significant as they claimed. The defense’s expert in vocational rehabilitation calculated Elijah’s future lost earnings at about $1 million.

The jury found that Fair was negligent and that his negligence was a factor in causing the death of Elijah and in causing the injuries to the Straws. According to jurors, Fair had acted within the course and scope of his employment at the time of the accident, and Fair’s actions in causing the accident rose to the level of recklessness/outrageous conduct. Golon was independently negligent in the dealings with Fair, and Golon’s negligence was a factor in causing Elijah’s death. Elijah’s estate and the Straws were determined to receive $32 million. (Following the verdict, the Straws withdrew their punitive claim without prejudice to advance the claim in future litigation.)

Estate of Elijah C. Straw: $7,000,000 Wrongful Death: Past Loss Of Society Companionship; $3,000,000 Wrongful Death: Future Loss Of Society Companionship; $4,500,000 Wrongful Death: lost income earning potential; $5,500,000 Wrongful Death: conscious pain and suffering, loss of life’s pleasures; Jennifer M. Straw: $1,000,000 Personal Injury: Past Pain And Suffering; $1,000,000 Personal Injury: Future Pain And Suffering; $500,000 Personal Injury: past and future emotional distress; $500,000 Personal Injury: past and future loss of consortium; Rowan J. Straw: $1,500,000 Personal Injury: Past Pain And Suffering; $500,000 Personal Injury: Future Pain And Suffering; $4,000,000 Personal Injury: past and future emotional distress; Thomas P. Straw: $1,000,000 Personal Injury: Past Pain And Suffering; $1,000,000 Personal Injury: Future Pain And Suffering; $500,000 Personal Injury: past and future emotional distress; $500,000 Personal Injury: past and future loss of consortium

Judge:

Paul F. Lutty Jr.

Demand:

$11 million (policy limit)

Offer:

$5 million

Trial Length:

6
 days

Trial Deliberations:

2
 hours

Jury Vote:

12-0

Jury Composition:

9 male/ 3 female

Post Trial:

Fair and Golon Masonry Restoration filed motions seeking a new trial and alleging multiple trial-court errors.

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