$1.6 million recovery for fall in parking lot
James Mescall negotiated a $1.6 million settlement for our client’s claim from a 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 a neck injury which did not improve with conservative treatment. After obtaining multiple medical opinions, she underwent cervical fusion surgery – anterior discectomy and fusion were 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 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 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 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 opinions of these experts assisted Mescall & Acosta in obtaining a full recovery, not only for our client’s pain, suffering and disability, but also for her past and future financial losses caused by the accident. The property owner and snow removal contractor both contributed to the settlement of $1.6 million. December 2017.
$1.425 million settlement for rear-end collision victim
Carlos H. Acosta, Jr., 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, 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. 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 successfully prosecuted 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., lost wages from the time of the accident to the date he was able to return back to work at the bakery. Additionally, he resolved a claim against the culpable motorist for $1.425 million. June 2016.
$700,000.00 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 an accident reconstruction expert, who claimed the force of the impact, “Delta V”, was less than 5 mph. The defendant’s biomechanical expert claimed that the cervical herniation could not have been caused by the minor impact. The defendant’s orthopedic physician opined that the plaintiff had a “degenerative disc osteophyte complex” which predated the collision. Plaintiff was not able to return to work as longshoreman following the accident. Plaintiff had a significant lost wage claim and there was an ERISA lien for her medical expenses. The case was settled with the assistance of Superior Court 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 with the trucking company paying $700,000.00 before those motions were decided. July 2017.
$650,000.00 settlement for automobile roll-over causing a herniated disc and requiring fusion of lumbar spine
Mr. Mescall negotiated this settlement for the firm’s client who was a passenger in a motor vehicle traveling on the Garden State Parkway when it was struck by another vehicle. causing the host vehicle to leave the roadway and overturn several times before coming to rest in a ditch. The primary injury sustained was a herniated lumbar disc which ultimately required the firm’s client to undergo a “fusion” surgery (used to weld or “fuse” together two or more vertebrae so that they heal into a single, solid bone) of two levels of the lumbar spine. Following this surgery, our client, a 44-year-old woman, was able to return to work but experienced difficulty carrying out her duties in the bakery department of a supermarket. The firm retained the services of an accident reconstruction expert to establish responsibility on the culpable motorist. The firm was also prepared to call our client’s orthopedic surgeon to testify regarding the causal relationship between the injury sustained in the accident and the surgery which was not performed until almost 4 years after the accident. In addition, Mr. Mescall was also prepared to show the jury an illustrative video of the surgical procedure which had been performed on our client. The two culpable motorists and the client’s underinsured motorist insurer contributed to the $650,000.00 settlement. August 2019.
$547,000.00 settlement for thirty-five (35) year-old motorist struck by a commercial beverage delivery truck
Our 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 our client should not be disclosed to the jury. The beverage company increased its offer in the middle of trial and the client accepted $547,000.00 to settle the case. March 2001.
$435,923.45 pursuant to jury verdict for intersectional auto accident resulting in herniated discs
Mr. Mescall obtained a net verdict of $350,000 for the firm’s client who sustained a herniated disc in his back and one in his neck as the result of a two-car intersectional collision. Both the client and the defendant contended that they had the green traffic signal in their favor.
The defendant claimed the light was green for him from the moment he first noticed the traffic signal 100 meters from the intersection. He claimed that when he looked up, while his vehicle was in the middle of the intersection after the collision, the light was still green for him. On cross-examination Mr. Mescall brought the defendant’s attention to a photograph taken immediately after the collision which showed the defendant being lifted on to a stretcher, with a brace on his neck, from his vehicle by emergency services personnel while his vehicle was clearly outside of the intersection. Our client received only 4 months of chiropractic treatment following the accident. There was no surgery. The physician who evaluated him for the defendant’s insurance carrier opined that he did not sustain herniated discs to his spine as a result of the accident and testified that the 38-year-old client’s MRI studies revealed a “degenerative” spinal condition which was unrelated to any trauma he may have experienced in the accident. Mr. Mescall called the client’s treating chiropractor and an orthopedic surgeon, who had evaluated him at Mr. Mescall’s request, to testify at the trial. Both doctors agreed that the spinal disc herniations were related to the serious intersectional accident and that additional therapy would not cure the injuries. The client lost no time from work and had no outstanding medical expenses as a result of the accident.
The jury found that the defendant was 70% responsible for the accident and that the firm’s client was 30% at fault. The jury awarded the client $500,000.00 for the injuries which he sustained that were related to the accident. Accordingly, the trial judge molded the verdict to $350,000.00 and entered judgment in favor of the plaintiff.
At the time the trial began, the defendant offered only $3,500.00 to settle the case. Before the trial, an arbitrator had determined that the case had a value of $20,000.00. As permitted by law, the defendant’s insurance company rejected the arbitrator’s decision. Mr. Mescall filed an Offer of Judgment indicating that the client would accept $20,000.00 to settle the case. As the jury’s award was more than 20% above the amount of the Offer of Judgment, Mr. Mescall filed an application for the entry of an award of the attorney’s fees and costs incurred as a result of the insurance carrier’s decision to force the matter to trial. He also sought an award of increased pre-judgment interest as called for by the Offer of Judgment Rule. In total, the Court awarded pre-judgment interest in the amount of $36,111.00, attorney’s fees in the amount of $49,085.00 and costs in the amount of $726.00 to the $350,000.00 jury verdict. Accordingly, the insurance company, which could have settled the case for $20,000.00, is now responsible for a judgment totaling $435,923.45. April 2019.
$380,000.00 settlement for 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 for $380,000.00. March 2002.
$375,000.00 medical malpractice settlement
Mr. Mescall 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 rather 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. This claim allowed the firm to obtain information, during the “discovery” phase of the lawsuit, from the defendant otolaryngologist regarding other alleged errors which she had made causing injuries to other patients. The hospital and the doctor both contributed to the settlement of $375,000.00.
The firm learned that, as the result of an unrelated proceeding, the defendant otolaryngologist’s license to practice medicine was suspended. August 2014.
$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. November 1997.
$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. September 2007.
$250,000.00 settlement for twenty (20) 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 her necessary future medical care and her settlement. April 2010.
$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. There was no claim for conscious pain and suffering as the patient died during the surgical procedure while still under anesthesia. Therefore, the possible damages were limited to the “economic losses” incurred by her 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. April 2005.
$195,342.27 judgment 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 damaging a ligament in her knee
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 Judgment Rule”, Mr. Mescall was, in addition to the verdict of $135,000.00, able to obtain a Court Order requiring that the defendant pay a portion of the attorney’s fees incurred by his client as well as the jury verdict. November 2007.
$170,000.00 settlement for a medical negligence/wrongful death claim against a dialysis center
A seventy-three (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. January 2007.
$150,000.00 verdict for rear-end hit to an eight-one (81) year-old man, resulting in herniated disc
In the fall of 2015, our client sustained a herniated disc in his back when his vehicle was struck in the rear. After the accident, he received treatment in the emergency room and, for approximately 4 months after that, chiropractic treatment. At the time the trial began, the plaintiff was 81 years of age and had not received medical treatment for his injury during the prior 3 ½ years. There was no claim for medical bills because these expenses had been paid by his no-fault insurance coverage. There was no claim for lost income as he was retired at the time of the accident. Our client, the plaintiff, admitted that there was no damage to his vehicle as a result of the impact. The police officer, testifying for the defense, confirmed that there was no damage to the plaintiff’s car and indicated that there was only minor damage to the defendant’s vehicle. Mr. Mescall, as attorney for the plaintiff, was able to keep photographs of the defendant’s vehicle out of evidence (the jury was not permitted to see them) since the defense could not sufficiently authenticate them.
As the plaintiff’s attorney, Mr. Mescall was obligated to prove, by objective medical evidence, that our client had sustained a permanent injury (defined by the law as “the injured body part has not and will not, even with further medical treatment, return to normal function”) pursuant to New Jersey’s “verbal threshold” law before our client was entitled to any monetary damages. The defendant’s testifying physician provided an opinion, after examining our client, that he suffered from spinal “degeneration” (the loss of water content within the spine) caused by the aging process and that he had not sustained a herniated lumbar disc as a result of the accident. Mr. Mescall presented trial exhibits, enlargements of the actual MRI images of our client’s spine, which illustrated the injury. Mr. Mescall called two medical experts to testify on behalf of the plaintiff, the treating chiropractor and an orthopedic surgeon. Both provided opinions that the herniated disc was caused by the car accident.
The defendant, through his insurance company, refused to make any offer of settlement on the case, thereby forcing the matter to trial. The insurance carrier’s position was based upon its history of winning the vast majority of similar cases. The jury returned a verdict of $150,000.00 in our client’s favor on April 18, 2019. Interest in the amount of $2,335.77 was added to the jury award and the insurance company reluctantly paid the judgment, with interest, rather than seek an appeal of the verdict. April 2019.
$177,336.62 pursuant to jury verdict for woman who sustained a herniated disc in her back as a result of a motor vehicle collision
On February 15, 2013, our then 45-year-old client was the operator of a motor vehicle which was struck in the rear while stopped in traffic in Morris Plains, New Jersey. Our client sustained a herniated disc in her lumbar spine as a result of the impact. The damage to the rear of the plaintiff’s vehicle from the impact was moderate. The insurance company defending the claim retained a bio-mechanical expert who provided an opinion that the impact to the rear of the vehicle was not sufficient to cause the herniation of a disc in our client’s spine. The insurance company also hired a doctor who testified that she did not have a herniated disc but that the MRI studies of her spine only showed signs of normal degeneration resulting from the aging process. Mr. Mescall retained the services of an orthopedic doctor who testified that the plaintiff sustained a herniation of a disc at the L4-5 level of her lower back as a result of the accident.
In order to prevail, the plaintiff was obligated to prove, by objective medical evidence, that she had sustained a permanent injury (defined by the law as “the injured body part has not and will not, even with further medical treatment, return to normal function”) pursuant to New Jersey’s “verbal threshold” law before she was entitled to any monetary damages. The insurance company, based upon the results of other similar cases, offered our client only $3,000 to settle the case. The jury believed our client and her doctor and awarded her the sum of $99,340.00 for her injuries.
Before the trial began, an arbitrator had determined that the case had a value of $17,500.00. As permitted by law the defendant’s insurance company rejected the arbitrator’s decision. Mr. Mescall filed an Offer of Judgment indicating that the client would accept $17,500.00 to settle the case. As the jury’s award was more than 20% above the amount of the Offer of Judgment, Mr. Mescall filed an application for the entry of an award of attorney’s fees and costs incurred as a result of the insurance carrier’s decision to force the matter to trial. He also sought an award of increased pre-judgment interest as called for by the Offer of Judgment Rule. The Court awarded increased prejudgment interest of $5,850.07, attorney’s fees of $71,720.00 and costs in the amount of $426.55. The insurance carrier, which refused to pay $17,500.00 to settle the case is now responsible for the sum of $177,336.62. October 2018.