January 27, 2022

US Jury awards $10.5M for woman ‘Buried Alive’ in crash

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gavel-Article-201401131208By Max Mitchell, From The Legal Intelligencer

A Philadelphia jury has awarded $10.5 million to the family of a mother of two who was “buried alive” during a collision with a dump truck carrying thousands of pounds of sand.

The jury handed up its verdict Thursday in Judge Mark I. Bernstein’s courtroom, awarding the husband and two autistic sons of decedent Gail Walsh $1.5 million in survival damages and $9 million for wrongful death. The jury in Walsh v. Mack Trucks split liability between three defendantsallocating 50 percent to the driver who allegedly caused the dump truck to swerve and tip onto Walsh’s vehicle.

The verdict came after nine days of trial and about five hours of deliberation, according to attorney Kenneth M. Rothweiler, who, along with Frederic S. Eisenberg and Daniel J. Sherry Jr. of Eisenberg Rothweiler Winkler Eisenberg & Jeck, tried the case for the plaintiff. The award came down near the middle of a $1 million to $25 million high-low agreement established in the case, which, according to Rothweiler, should allow for a more speedy recovery of the funds.

“The award will help take care of the family,” Rothweiler said. “It was a total tragedy. My client, she was going seven miles per hour at the time of the crash. We tried three different defendants because we always wanted to see what a jury would do with it.”

According to the plaintiff’s pretrial memorandum, in January 2012, Walsh was in her SUV at an intersection in Cherry Hill, New Jersey, when a truck, operated by Ezequiel Rivera and carrying nearly 50 thousand pounds of sand, began passing through the intersection. A car driven by Max Becker, who later died from unrelated causes, allegedly began encroaching into the intersection as Rivera passed. According to the memo, this caused Rivera to swerve, and the movement caused the truck’s weight to shift, which led the vehicle to tip over.

The pretrial memo said bystanders and Rivera “frantically” attempted to dig Walsh out of the sand, but she was dead by the time she could be reached. No autopsy was performed, but forensic pathology expert Dr. Ian Hood opined that she died from compression asphyxia, the memo said.

“In essence, she was buried alive and died an excruciatingly painful, horrendous death,” the pretrial memo said.

Walsh’s husband, Dan Walsh, initiated the suit on behalf of himself and their two autistic sons.

The memo argued the mining company, Eureka Stone Quarry, improperly loaded the truck, making it unstable, and that Becker was negligent for encroaching into the intersection. The memo also alleged negligent design and failure to warn claims against the manufacturer, Mack Trucks, and the aftermarket modifier, J&J/Somerset Welding. The plaintiff also alleged that Rivera was negligent for failing to control the truck. The claims against Mack and J&J/Somerset were settled prior to trial.

Regarding the truck, Walsh noted that the company had no rules or standards in place for loading trucks, and that mine safety standards required loads to be even and placed as low as possible to increase stability. According to the memo, a nonparty eyewitness said the sand had been heaped over the top of the truck by about 12 inches.

In his pretrial memo, Rivera contended that he took emergency evasive action to avoid hitting the Becker vehicle, and he faulted Becker for the crash. According to the memo, accident reconstruction expert Fawzi P. Bayan opined that Rivera’s actions were appropriate.

Although Becker died during the litigation, his wife, who was a passenger during the collision, contended that the vehicle was stationary the whole time. She further noted there was no consensus as to exactly where their vehicle was at the time of the crash, and her husband was not given a traffic citation.

Eureka, in its pretrial memo, contended that Walsh’s experts did not establish causation, and further faulted Becker and Rivera for causing the accident.

Walsh’s memo said that, after Gail Walsh died, the family “has been understandably adrift.” Walsh’s sons, Dillon and Cody, are in their 20s and require constant help to handle their chores of daily living, such as bathing and eating.

“Mrs. Walsh dedicated her life to her family, particularly the safety and well-being of her two profoundly autistic sons, and she did so tirelessly and selflessly. On the rare occasion that Mrs. Walsh was not actively caring for Dillon and Cody, she could reliably be found advocating for the autistic community,” the memo said, further noting that she had been scheduled to receive a national award for her advocacy.

The memo said the economic loss to the family ranged between $6 million and $19 million.

Economic and medical experts from the defense opined that Walsh died ­instantaneously and disputed the amount of damages.

After deliberations, the jury found Becker 50 percent liable, Rivera 35 percent liable and Eureka 15 percent liable for the crash.

Neither William Connor of Christie & Young, who handled the case for Becker, nor John T. Donovan of Rawle & Henderson, who handled the case for Eureka, return calls for comment. Francis J. Deasey of Deasey Mahoney & Valentini, who handled the case for Rivera, declined to comment.

For more on this story go to: http://www.thelegalintelligencer.com/id=1202752043689/Jury-Awards-105M-for-Woman-Buried-Alive-in-Crash#ixzz42txVGMw1

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