Verdicts & Settlements

December 2017

$1.6 million recovery for fall in parking lot

Recently, James Mescall negotiated a $1.6 million settlement for our client’s fall in an icy parking lot.  Our client was injured when she slipped and fell on ice in her company’s parking lot after leaving work for the day.  There were no witnesses, but she promptly reported the incident to security personnel and went to the emergency room the next morning complaining of back pain.

Our client suffered from neck injury pain which did not improve with conservative treatment.   After multiple medical opinions, she underwent cervical fusion surgery – anterior discectomy and fusion was performed at the C4-5, C5-6 and C6-7 levels at The Hospital for Special Surgery – followed by physical therapy for six months, without significant relief.   Severe neck pain, radiating down her left arm, returned. The client also sought care from a pain management specialist and underwent a series of epidural and facet injections, as well as radio frequency ablation, without relief.   Subsequently, a second fusion procedure was recommended. During this second operation, the fusion was extended to include the C3-4 level.   After this surgery, she underwent selective nerve root block injections and was prescribed a fentanyl patch and oxycodone. Implementation of a spinal stimulator was recommended and declined as the client was concerned that it would mask her pain and would result in long-term damage due to continued compression of the nerves emanating from the cervical spine.

Even following the second fusion surgery, the client continued to suffer from severe neck pain which radiated down both arms and caused tingling and numbness in both hands. She also experienced incontinence. She again underwent additional diagnostic studies at The Hospital for Special Surgery. Her surgeon performed a discogram in an attempt to isolate the cause of her continuing difficulties and to determine whether a third surgical procedure would be appropriate.

After these tests, she decided she had no choice but to undergo a third surgical procedure on her neck.  This time, her surgeon performed a bilateral laminoforaminotomy at the C7-T1 level. Fortunately, this procedure provided some relief. However, she continues to follow-up with her doctors and for pain management.

Through investigation, Mescall & Acosta obtained statements from two of her co-workers confirming that ice and snow removal at the time of the accident was poor, and a claim was brought against the commercial property owner and its snow removal contractor.  Analysis of weather records indicated that a significant snow storm had occurred a few days prior to the fall. Records obtained in discovery from the snow removal contractor indicated it had not spread an adequate amount of salt on the driveways and parking lots of the complex in advance, during and after the snow storm.

An analysis by a professional engineer hired by Mescall & Acosta revealed that the snow removal procedures at the premises fell well short of the appropriate standard of care in the industry.  The absence of sufficient de-icers on and prior to the incident date allowed both the new and previously-melted precipitation to accumulate and re-freeze on the parking lot.

Mescall & Acosta’s liability expert determined that the condition of the parking lot on the date of the accident violated multiple sections of the applicable municipal code as well as other pertinent maintenance codes and standards. The engineer, in his report prepared for this case, contended that the owner had the ultimate responsibility to keep the property free from hazards to the public. The owner retained the final responsibility for compliance with all laws, rules and regulations. Whether or not the snow removal contractor adequately performed those duties, the owner retained the final legal responsibility to ensure that the property was reasonably safe. The property owner, the property manager, and the snow removal contractor were all responsible for the conditions which led to the fall.

Following the fall our client returned to her job as a trust officer for a bank. However, due to her injuries, she was eventually required to quit her job. Mescall & Acosta retained the services of a vocational expert who determined that she was no longer employable due to her injuries. The firm also hired an economist who calculated the present value of her future lost income. Finally, the firm retained an expert to provide a “life care plan” for the purpose of determining the cost of any future medical care which might be necessary. The determinations of these experts allowed the firm’s client a full recovery, not only for her pain suffering and disability, but also for her past and future financial losses caused by the accident.

July 2017

$700,000 Settlement in low-impact auto-truck accident

James Mescall secured a settlement of $700,000 on a case filed in Essex County, New Jersey. He represented a 46-year-old woman who had one level cervical fusion surgery more than four years after a motor vehicle accident. She was driving to work on Route 22 in Newark when she attempted to pass a truck, traveling in the middle lane, on the right. The tractor (bob-tail) began to move into the right lane to exit the highway, causing a minor collision. The property damage to the plaintiff’s vehicle was approximately $800. The truck had no damage. The defense retained John Desch, an accident reconstruction expert, who claimed the “Delta V” was less than 5 mph. Defendant’s biomechanical expert, Ronald Fijalkowski, claimed that the cervical herniation could not have been caused by the minor impact. Dr. Albert Thrower opined, for the defense, that plaintiff had a “degenerative disc osteophyte complex” which predated the collision. Plaintiff had not returned to work as longshoreman following the accident. Plaintiff had a significant lost wage claim and there was an ERISA lien. The case was settled with the assistance of Judge Robert Gardner. There were motions pending to strike the opinions of the defendant’s accident reconstruction expert and biomechanical expert based primarily on the faulty methodology employed in calculating the “Delta V”. The case was settled before those motions were decided.

June 2016

$1.425 Million Dollar Settlement for rear-end collision victim

Carlos H. Acosta, Jr., recently negotiated a $1.425 million dollar settlement for a client who sustained serious injuries to his head, neck and back as a result of a rear-end collision which occurred on an exit ramp of Route 495 West in Weehawken, New Jersey. The client who was forty-six (46) years old at the time suffered cervical bulges at C4-C5, C5-C6, and C6-C7, lumbar disc bulges at L3-L4 and L4-L5 resulting in acquired stenosis, and a disc herniation at L5-S1. After undergoing a course of conservative treatment, the client required cervical fusion surgery which required the use of autograt and allograft, a plate and screws placed into the spine. Also, the client underwent a lumbar fusion surgery which also required the use of autograt and allograft with placement of screws, once again, into the spine. Subsequent to the lumbar fusion, the client continued to experience severe pain in his lower back with radiation, numbness and tingling, into his legs. These complaints gave rise to the need for another back surgery in the form of a left intralaminar laminotomy, wide forminotomy, medial facetectomy at L5-S1, and discectomy at L5-S1.

As the client was operating his employer’s bakery truck at the time of the accident, Mr. Acosta also successfully resolved a workers compensation claim on behalf of the client. This was essential as the client was out of work for approximately three (3) years and his medical bills were in excess of $150,000. As result of Mr. Acosta’s efforts, the employer’s workers’ compensation insurance company paid all of the medical bills and temporary disability – i.e., loss wages from the time of the accident to the date he was able to return back to work at the bakery.

August 2014

$375,000 Medical Malpractice Settlement

James Mescall recently resolved a claim where the firm’s client sustained a cerebral fluid leak (CFL) following a septoplasty performed by an otolarynglogist (ear, nose and throat doctor or “ENT”). Brain fluid leaking into the nasal cavity following a medical procedure to straighten the nose is very unusual and is often the result of medical malpractice. This condition can lead to serious medical complications including meningitis. Fortunately, the client only required a second surgery to repair the leak and the more severe complications were avoided. The defendant physician denied knowledge of the leak. There was no mention of the condition in the operative report regarding the septoplasty. The patient noticed “clear fluid” leaking from her nose within days of the surgery. However, the CFL was not diagnosed, by another ENT, until months later. It was anticipated that the defendant surgeon would argue that this was a “spontaneous CFL” which occurred without any fault of the defendant. A “spontaneous CFL” is an uncommon but recognized condition, as revealed by the  medical research performed by the medical experts retained by the firm.  However, the otolarynglogist retained by the firm to testify at trial provided an opinion which discounted the likelihood that the CFL was “spontaneous” and not the result of the defendant’s surgical technique.The firm’s research revealed that the defendant ENT had been the subject of other successful medical malpractice actions.  Accordingly a claim for “negligent credentialing” was also  asserted by the firm against the hospital that had granted the physician privileges to perform the surgery on the firm’s client. This claim allowed the firm to obtain information, during the “discovery” phase of the lawsuit, from the defendant otolarynglogist regarding other errors which she had made causing injuries to other patients. The hospital also contributed to the settlement.

The firm recently learned that, as the result of an unrelated proceeding, the defendant otolarynglogist’s license to practice medicine is scheduled to be suspended.

April 2010

$250,000.00 settlement for twenty-year old woman who sustained a right arm injury when the vehicle in which she was riding  overturned on the highway. Mr. Mescall obtained the full amount of the insurance available including $225,000.00 in underinsured motorist benefits as the culpable motorist carried only $25,000.00 of liability insurance. Mr. Mescall also successfully negotiated a claim by the young woman’s health insurer seeking a portion of the recovery on the basis that it could “subrogate” against her settlement. After arguing that applicable law precluded this claim the health insurer agreed to accept a small portion of the settlement and continue paying future medical bills without any further rights of “subrogation” so the young woman would receive both the required future medical care and her settlement.

July 2009

$135,000.00 settlement for construction worker who fell off a roof sustaining a fractured ankle. This undocumented worker slipped when a roofing shingle broke under his foot causing him to fall two (2) stories. Mr. Mescall hired an expert who provided an opinion that the general contractor had failed to provide necessary safety equipment which would have prevented the accident. The case settled in court at a settlement conference shortly before the trial date.

June 2009

$125,000.00 settlement for twenty-four-year old woman who sustained burns when she spilled boiling water on herself in her apartment. The client was required to boil water to use it to bathe in her apartment. Mr. Mescall’s investigation, supported by expert opinion, revealed that the landlord had failed to provide hot water as required by New Jersey Statutes. Despite the argument of the landlord’s insurance company that the client’s own carelessness had caused the accident, it agreed to settle the case before proceeding to trial.

June 2009

$110,000.00 settlement against nursing home for elderly client who fractured his hip when he fell while packing to be discharged from the facility. Mr. Mescall argued that the client, who was a moderate fall risk, would not have fallen had he been provided with assistance from the staff. Mr. Mescall also argued that the nursing home violated the “Nursing Home Bill of Rights” in failing to do a proper assessment and by discharging this unfortunate man to his home on the date the injury was sustained, due to the nursing home’s failure to diagnose the fracture . Despite the client’s passing, due to unrelated causes, the nursing home eventually offered the settlement which was accepted by the client’s son.

May 2009

$100,000.00 settlement against a motorist in the wrongful death of a two (2) year old girl who was killed when her baby stroller was struck by a car while her mother was pushing it through stopped vehicles and across a busy street at dusk. Tragically the baby’s mother was also killed in this horrific incident. There were serious issues regarding the motorist’s legal responsibility for this tragedy. Regardless, Mr. Mescall was able to obtain the settlement, for the full amount of the driver’s insurance policy, on behalf of the grief stricken father of the little girl.

February 2009

$119,000.00 settlement for worker who injured his right elbow in a fall while unloading truck. This fifty-five (55) year old man fell inside the truck when a worker from another company engaged the vehicle without warning the man, causing the fall. Mr. Mescall prosecuted a workers compensation claim and obtained an order requiring the compensation insurer to provide surgery to repair the damaged right elbow. After all treatment was concluded the claim against the careless worker’s company was settled without the need for a trial.

February 2008

$85,000.00 settlement in Federal Court action where client suffered a fractured ankle as a result of striking a portion of a metal bed frame in her hotel room while walking next to the bed to answer the telephone. The defendant hotel chain initially denied negligence but eventually settled the case after a conference with the Federal Magistrate and Mr. Mescall.

November 2007

$195,342.27 judgement on behalf of a fifty-eight (58) year old pedestrian who was struck by a car backing up in a parking lot at her place of employment. The insurance company attorney, appointed to defend the careless driver who caused the accident, argued that the pedestrian’s injury was not permanent and therefore she was not entitled to be compensated for her injuries as she had selected the “lawsuit threshold” option in her own insurance policy. The pedestrian had sustained an injury to a ligament in her right knee. The doctor who examined her at the request of the defense attorney testified that her injury was not permanent. The insurance company, confident in its defense, made Mr. Mescall no offer to settle the case. The jury disagreed with the position advocated by the insurance company and its lawyer. Through use of the “Offer of Judgement Rule”, Mr. Mescall was, in addition to the verdict, able to obtain a Court Order requiring that the defendant pay a portion of the attorney’s fees incurred by his client as trial costs.

September 2007

$325,000.00 settlement for a school custodian injured when he slipped on water at his place of work. Investigation established that it was likely a carpet cleaning company had negligently allowed water to accumulate on a stairway in the school causing the custodian to fall and suffer a herniated disc in his lower back. The company initially denied the claim but its insurance carrier agreed to settle with Mr. Mescall shortly before trial.

June 2007

$99,500.00 settlement for eighty (80) year old woman who aggravated prior back and neck injuries in a motor vehicle accident. Mr. Mescall collected all but $500.00 of the available insurance for his client, who had injured her back and neck in a fall on a cruise ship two (2) years prior to the accident, but suffered an exacerbation of her injuries when the vehicle she was operating was struck by a careless motorist.

June 2007

$300,000.00 judgement on behalf of a thirty-eight (38) year old woman who suffered a shoulder dislocation, requiring surgical repair, after she was assaulted outside of her apartment in the complex where she resided.

March 2007

$137,500.00 settlement on behalf of a seventy (70) year old woman who fractured her right ankle when she slipped and fell on ice near a construction trailer. The lady had moved into a condominium in a development where several of the units were still under construction. The client had stopped to speak with the construction manager. As she exited her car, she slipped on the ice.  Mescall & Acosta promptly obtained photographs of the icy area, preventing the construction company from arguing that the ice was not there. The photographs clearly showed the absence of salt or sand. Mr. Mescall argued that it was “foreseeable” that a resident, who had recently moved into the complex, would stop by the construction trailer to speak with management regarding additional work that needed to be completed in her unit and therefore the owner of the complex should have made some effort to keep the area clear of ice and snow.

January 2007

$100,000.00 settlement on behalf of a seventeen (17) year old girl who sustained an aggravation of a pre-existing condition, a syrinix in her head and neck, as a result of a car accident. The insurance company denied that the condition had been aggravated by the trauma sustained in the automobile accident. However, surgery was now required to address the condition. Mr. Acosta successfully prosecuted, in an expedited arbitration hearing against the “no fault” insurance carrier, obtaining an order which required the insurance company to pay for the client’s surgery, allowing this young woman to  obtain the prompt emergent medical care she needed. Mr. Acosta then settled the claim for damages for the full amount of the insurance proceeds available to satisfy the claim.

April 2006

$170,000 settlement for a medical negligence/wrongful death claim against a dialysis center. A 73-year old dialysis patient suffered a severe leg bruise when she was improperly moved from a dialysis chair to her wheelchair after completing treatment. Due to her underlying condition, the bruise did not heal and eventually contributed to her death. Her granddaughter was referred to Mr. Mescall after she died and shortly before the two year statute of limitations was about to expire. Although the dialysis center denied responsibility, it was forced to admit that the grandmother had been injured as she was transported to the hospital the day after the accident and the hospital’s record confirmed the injury. Mr. Mescall conducted eight (8) depositions in order to establish the manner in which the employees of the dialysis center usually transferred their patients (since all of them claimed not to recall the incident). By using this discovery an expert hired by Mr. Mescall was able to formulate an opinion that it was likely that the employees of the dialysis center improperly transferred the grandmother causing the bruise. The investigation coupled with the expert’s opinion eventually convinced the insurer of the dialysis center that it was best to settle.

April 2005

$250,000.00 medical malpractice settlement for wrongful death during a surgical proceeding. The son and daughter of an elderly woman who died during surgery to remove a “mass” from her nasal cavity came to Mr. Mescall after two (2) other lawyers had declined to take the case. The elderly victim had been retired and had no income. Therefore the possible damages were limited to the “economic losses” incurred by the immediate family members pursuant to New Jersey’s restrictive Wrongful Death Statute. Under this law, children are not permitted to recover damages for the emotional losses incurred as the result of the death of a parent. An expert hired by the firm concluded that the operating surgeon had departed from the appropriate standard of care during the surgery thereby causing the elderly woman’s death. An expert economist hired by the firm provided a report regarding the family’s economic losses resulting from the death of their mother. The case was settled shortly after Mr. Mescall took the defendant physician’s deposition.

November 2004

$215,000.00 settlement for truck driver who injured his neck when his vehicle was struck in the rear in traffic on the George Washington Bridge. The insurance carrier defending the case initially argued that the sixty-one (61) year old truck driver’s neck injury was primarily due to “degenerative changes” in his spine and not the trauma from the collision. Prior to trial the insurance company agreed to the settlement.

August 2004

$100,000.00 settlement for wrongful death in an automobile accident. A twenty-six year old unmarried man tragically lost his life when his car was struck. The young man’s parents directed Mr. Mescall to settle the case for the full amount of insurance available to compensate the family rather than pursue the driver who caused the accident for payment of any judgement which would have been entered above the available liability insurance limits.

March 2002

$380,000.00 settlement – construction site accident for a worker who fell from height due to the failure of the general contractor to provide appropriate safety guards. Investigation revealed that wind blew the worker, who was holding a sheet of metal decking, off the building resulting in serious injuries. Mr. Mescall’s investigation, supported by opinions of qualified experts in the construction safety field hired by Mescall & Acosta, proved that the responsible contractors had not taken adequate safety precautions which eventually convinced the insurance carriers and the lawyers for the contractors to settle the case.

August 2001

$215,000.00 settlement on behalf of a fifty-three (53) year old woman who sustained back injuries when the motor vehicle she was operating was struck in the rear. Although she had suffered from back problems prior to the accident, she now required injections for her back pain due to the accident. Her insurance company refused to pay for this treatment arguing that it was “not related” to the injuries incurred in the accident. Mr. Mescall filed a claim against the woman’s insurance company, arguing that her insurance carrier was required to pay the medical bills under the “no-fault” coverage provided to the client. The arbitrator, who decided the no-fault claim, disagreed with the physician, who testified on behalf of the insurance company, and awarded the client the full amount of her medical bills payable under the policy. The client received both the settlement money, in compensation for her back injuries, and payment of her medical bills pursuant to the “no-fault” coverage under her own insurance policy.

March 2001

$547,000.00 settlement for thirty-five (35) year old driver struck by a commercial beverage delivery truck. The client sustained back and neck injuries which prevented him from returning to work. Mr. Mescall hired medical and vocational experts to support the case. An economist was also hired to calculate the value of future lost wages. As the client had not sustained any fractures, the large beverage manufacturer argued that the man was not severely injured and hired experts who contended he was medically able to return to work. At trial Mr. Mescall successfully argued that the evidence obtained through the company’s surveillance of his client should not be disclosed to the jury. The company increased its offer in the middle of trial and the client accepted $547,000.00 to settle the case.

September 2000

$130,000 jury verdict for thirty-three year old woman injured in a motor vehicle accident. This young lady sustained a bulging disc in her back as a result of the a car accident. The insurance company offered $12,500.00 to settle the case. Mr. Mescall counseled his client to decline the offer. The insurance company’s doctor testified that the bulging disc was not a serious injury and was not related to the motor vehicle collision. The jury awarded more than ten (10) times the amount that the insurance company had offered.

April 1998

$215,000 settlement for bartender who slipped on water on steps leading to the basement of the restaurant where he was working, breaking his leg. Investigation revealed a leaking pipe above the steps where the accident occurred. The insurance company for the landlord accepted responsibility for the accident shortly after the incident. An equitable settlement was reached after the bartender was released from care by his orthopeadic doctor without the filing of a lawsuit.

November 1997

$325,000.00 settlement for thirty-six (36) year old woman who fell on an icy walkway while working at Liberty International Airport in Newark, New Jersey,  sustaining a wrist fracture which required multiple surgical procedures. Investigation revealed that a contractor had been hired to remove ice and snow from the area where the client fell but failed to do so. Prior to trial, the insurance company for the contractor agreed to the settlement.

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CONTACT US

Essex County Office
80 Main Street, Suite 550
West Orange, NJ 07052
Phone: 973-669-3339
Fax: 973-669-3331
Email: contact@mescallacosta.com

Hudson County Office
4617 Bergenline Avenue, 2nd Floor
Union City, NJ 07087
Phone: 201-223-6660
Fax: 201-223-1188
Email: contact@mescallacosta.com

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