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Sand from overturned dump-truck fatally buried woman in car

Amount:

$10,500,000

Type:

Verdict-Plaintiff

State:

Pennsylvania

Venue:

Philadelphia County

Court:

Philadelphia County Court of Common Pleas

Injury Type(s):

other-death; other-conscious pain and suffering; mental/psychological-emotional distress; pulmonary/respiratory-asphyxia

Case Type:

Motor Vehicle – Truck, Rollover, Intersection, Multiple Vehicle; Wrongful Death – Survival Damages; Worker/Workplace Negligence – Negligent Maintenance, Negligent Supervision, Negligent Assembly or Installation

Case Name:

Dan Edward Walsh, both individually and as executor of the Estate of Gail Walsh, deceased v. Mack Trucks Inc., Somerset Welding & Steel Inc., Somerset Welding & Steel Inc. d/b/a J&J Truck Bodies & Trailers, J&J Truck Bodies & Trailers, James D. Morrisey Inc., James D. Morrisey Inc. d/b/a Eureka Stone Quarry Inc., Eureka Stone Quarry Inc., MJF Materials LLC, Ezequiel Rivera, and Max Becker,
No. 131101065

Date:

March 11, 2016

Parties

Plaintiff(s):

Dan Edward Walsh (Male), 

Estate of Gail Walsh (Female, 57 Years)

Plaintiff Attorney(s):

Kenneth M. Rothweiler;
Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.;
Philadelphia,
PA,
for
Dan Edward Walsh, Estate of Gail Walsh ■ Daniel J. Sherry Jr.;
Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.;
Philadelphia,
PA,
for
Dan Edward Walsh, Estate of Gail Walsh ■ Frederic S. Eisenberg;
Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.;
Philadelphia,
PA,
for
Dan Edward Walsh, Estate of Gail Walsh

Plaintiff Expert(s):

Ian Hood; Ch.B.; Forensic Pathology; Philadelphia,
PA called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg ■ Erik Carlsson; Automotive; Chester,
NJ called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg ■ John Karpovich; Accident Reconstruction; Oakland,
NJ called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg ■ Brian O’Donel; P.E.; Engineering; Lancaster,
PA called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg ■ David Hopkins; A.S.A.; Economics; King of Prussia,
PA called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg ■ Terri Patterson; R.N.; Life Care Planning; Plymouth Meeting,
PA called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg ■ Brooks Rugemer; Trucking Industry; Lancaster,
PA called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg ■ William Vigilante Jr.; Ph.D.; Ergonomics/Human Factors; Philadelphia,
PA called by:
Kenneth M. Rothweiler, Daniel J. Sherry Jr., Frederic S. Eisenberg

Defendant(s):

Max Becker, 

Ezequiel Rivera, 

Mack Trucks Inc., 

MJF Materials, LLC, 

James D. Morrisey Inc., 

Eureka Stone Quarry Inc., 

Somerset Welding & Steel Inc.

Defense Attorney(s):

John T. Donovan;
Rawle & Henderson, LLP;
Philadelphia,
PA,
for
James D. Morrisey Inc., Eureka Stone Quarry Inc. ■ Caroline S. Vahey;
Rawle & Henderson, LLP;
Philadelphia,
PA,
for
James D. Morrisey Inc., Eureka Stone Quarry Inc. ■ None reported;

for
Mack Trucks Inc., Somerset Welding & Steel Inc. ■ Ryan F. Michaleski;
Deasey, Mahoney & Valentini, Ltd.;
Philadelphia,
PA,
for
Ezequiel Rivera, MJF Materials, LLC ■ William M. Connor;
Christie & Young PC;
Philadelphia,
PA,
for
Max Becker ■ Michael H. Malin;
Christie & Young PC;
Philadelphia,
PA,
for
Max Becker

Defendant Expert(s):

Fawzi Bayan;
Accident Reconstruction;
Annapolis,
MD called by:
Ryan F. Michaleski ■ James Stavros;
Economics;
Haddonfield,
NJ called by:
John T. Donovan, Caroline S. Vahey, Ryan F. Michaleski ■ Wayne Ross;
Forensic Pathology;
Lancaster,
PA called by:
John T. Donovan, Caroline S. Vahey ■ Robert Miller;
Accident Reconstruction;
Annapolis,
MD called by:
Ryan F. Michaleski ■ Thomas Dawson III;
Health Care Policy & Procedures;
Silver Spring,
MD called by:
John T. Donovan, Caroline S. Vahey, Ryan F. Michaleski ■ Kathleen Kuntz;
Life Care Planning;
Jamison,
PA called by:
John T. Donovan, Caroline S. Vahey, Ryan F. Michaleski

Insurer(s):

York Risk Services Group for Ezequiel Rivera;
New Jersey Skylands Insurance Association for Max Becker;
National General Insurance for Max Becker;
Liberty Mutual Insurance Co. primary carrier for Eureka Stone Quarry Inc.;
Great American Insurance Group excess carrier for Eureka Stone Quarry Inc.;
National Union Fire Insurance Company of Pittsburgh, PA for Somerset Welding & Steel Inc.

Facts:

On Jan. 19 2012, plaintiff’s decedent Gail Walsh, 57, was driving south on Haddonfield-Berlin Road in Cherry Hill. As she slowed for traffic, a dump truck swerved and overturned on top of her sport utility vehicle, and 49,920 pounds of sand from the back of the truck poured on top of her SUV, burying her fatally within it. The sand was being transported by a 2004 Mack CV7 chassis driven by Ezequiel Rivera. The truck was modified with an after-market dump body manufactured by J&J Truck Bodies & Trailers. According to Walsh’s estate, Rivera was driving north on Haddonfield-Berlin Road toward Morris Drive, when he took an evasive maneuver after he believed another driver, Max Becker, who was stopped on Morris Drive, had encroached on the northbound lane. Rivera steered the truck to the left, then corrected back to the right. In doing so, Rivera lost control and the truck began to rotate clockwise and tip on its left side. Meanwhile, Walsh, heading south on Haddonfield-Berlin Road, had been slowing for a traffic signal when she was struck by the overturning dump truck and pushed rearward 50 feet. When the dump truck overturned, nearly 50,000 pounds of sand poured onto her vehicle. Prior to the accident, Rivera, who worked for MJF Materials, LLC, had the dump truck filled with sand at a sand-and-stone yard at Eureka Stone Quarry, in Gibbsboro, NJ. Walsh’s estate claimed that the sand was improperly loaded into the dump truck and violated MSHA (Mine Safety and Health Administration) training protocols. The estate also claimed that the Mack truck Rivera was driving was defective in its braking and its lack of frame strength. The estate further claimed that the dump bed, which was manufactured by J&J Truck Bodies & Trailers, was defective in its design and lacked adequate warnings. Walsh’s estate sued Rivera, his employer, Becker (who died of unrelated causes during litigation), Eureka Stone Quarry, and an affiliated entity (James D. Morrisey Inc.) on claims of negligence. (The estate also sued Mack Trucks Inc. and J&J Truck Bodies and Trailers, alleging claims under a theory of products liability, including design defect; Mack and J&J were dismissed after the companies resolved the claims with the estate during the trial.) According to the estate’s expert in loading and commercial vehicle safety, there were no written rules or standards used at the Eureka sand-and-stone facility pertaining to how to safely load a dump truck with sand. Commercial transportation safety standards require that a sand load always be placed into a dump bed in a level manner and be as low as possible. This ensures dump-truck stability and prevents the load from shifting, which can cause a tip-over. The expert faulted Eureka for loading approximately 50,000 pounds of sand in an extremely hazardous high and mounded manner, with the top of the load exceeding the height of the dump bed by 12 inches. The estate’s expert in accident reconstruction testified that the way the sand was loaded was the primary reason for the tip over, but also faulted Becker for having the front of his vehicle enter the right lane of Haddonfield-Berlin Road, prior to the green light. The expert maintained that Rivera’s steering maneuver was foreseeable, but he should have been able to stop in time to avoid striking Walsh. Eureka’s expert in accident reconstruction maintained that the way in which the dump truck was loaded was not any different on the day of the accident than it was any other day. The expert further testified that the load would have resulted in a rollover during the rapid evasive maneuver by Rivera, even with a flat, uniform distribution of the sand. Becker, in his interview with the police, denied that he had moved his car into the intersection. This claim was supported by Becker’s wife, who was a front-seat passenger at the time. A witness testified that any movement by Becker occurred after Rivera passed Becker at the intersection. Becker’s counsel cited the police’s findings which determined that there was no clear consensus where exactly his car was at the time of the accident and/or whether Becker made a movement with his car.

Injury:

Rivera and bystanders rushed to Walsh’s vehicle and started frantically digging in the sand. By the time the SUV was uncovered, Walsh was dead. She is survived by a husband and two sons. The estate’s expert in forensic pathology determined that Walsh experienced significant conscious pain and suffering before dying, relatively slowly, from compression asphyxia. The expert concluded that Walsh was buried alive and died an excruciatingly painful, horrendous death. Walsh’s husband testified that Walsh’s death ripped a hole in their family, forcing him to leave his job and become the primary caretaker for the couple’s autistic sons, who are in their 20s and who require round-the-clock care and supervision. Walsh was a volunteer in the autism community. The estate’s expert in nursing opined that Walsh was acting as the functional equivalent of a home health aide/behavioral specialist in caring for her sons. The expert presented two options for them: hire a home health aide, which was estimated at $8,025,670 to $18,716,162, or place them in a residential program, which was calculated at $5,882,266 to $13,717,668. The estate’s expert in economics valued Walsh’s loss of household services from $318,448 to $742,633. The estate further sought damages under the Wrongful Death and Survival Acts. The defense’s expert in forensic pathology concluded that Walsh was incapable of experiencing conscious pain and suffering due to her instantaneous physiological and catastrophic injuries. The defense’s expert in life-care planning valued home care for Walsh’s sons at $658,875 and a combination of home care and a facility at $2,460,625. According to the defense’s expert in economics, Walsh’s husband sustained a loss of household services of $240,818. The defense’s expert in health care policies and procedures, who analyzed Walsh’s care covered by insurance, determined an annual cost of $12,960 for both sons.

Result:

The jury found that Becker was 50 percent liable, Rivera was 35 percent liable, and Eureka was 15 percent liable. Walsh’s estate was determined to receive $10.5 million.

Estate of Gail Walsh: $1,500,000 Wrongful Death: Survival; $9,000,000 Wrongful Death: Wrongful Death

Trial Information:

Judge:

Mark I. Bernstein

Trial Length:

9
 days

Trial Deliberations:

5
 hours

Editor’s Comment:

This report is based on information that was provided by plaintiffs’ counsel. Defense counsel did not respond to the reporter’s phone calls. Mack Trucks Inc. and Somerset Welding & Steel Inc. were not asked to contribute.