The attorneys in Kreindler &Kreindler’s Boston office hit theground running and in their first yearobtained one of the largest personalinjury jury verdicts in recentMassachusetts history. It was also oneof the state’s largest jury verdicts in asingle victim motor vehicle case. In acase tried by James Gotz, a juryawarded our client $13 million, plusinterest, for the debilitating injurieshe received after being run down bythe defendant’s vehicle.

At the time he was hit,WilliamDodge was walking to a train stationand was in a pedestrian crosswalk atan intersection governed by a flashinglight. He had made it more than halfway across the street when thedefendant’s Honda Accord struckhim.The impact was so great that

Mr. Dodge was lifted onto the hoodof the Honda, shattering thewindshield, crumpling the frontroof line and causing ripples in therear passenger side roof. The Hondacame to a stop 98 feet beyond theplace of impact.

In the accident, Mr. Dodge sustaineda fracture of his cervical spine atC6-C7, which left him permanentlyparalyzed from the chest down. Healso suffered an 8-inch deglovinginjury to his scalp.As a result, heunderwent several operations andalmost a year of rehabilitation. Hismedical expenses totaled more than$700,000.

Success at trial required meticulouspreparation of the liability anddamages cases.

Welcome to the latest issue ofThe Kreindler Standard.

This edition of The Standardintroduces the firm’s recentlyopened Boston Office, which isheaded by American Associationfor Justice (AAJ formerly ATLA)Vice President AnthonyTarricone. Anthony has built areputation as one of the mostaccomplished attorneysrepresenting plaintiffs in thegreater Boston area. He is joinedby James Gotz, whose practicefocuses on complex tort andproduct liability litigation, andJoseph Musacchio, who likewisefocuses on complex tort, productliability and appellate practice.James and Joe each havefeatured cases in this issue.

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FEATURED CASE: Dodge v. Arda TezelKreindler & Kreindler Wins a $13 Million Jury Verdict for a PedestrianSeriously Injured by a Negligent Driver

THE KREINDLER

TANDARDS

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In This Issue:

$13 Million win for a pedestrianseriously injured by a negligentdriver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

$1.1 Million judgment awarded inan insurance bad faith case. . . . . . . . 2

$3.3 Million settlement reached inhunting accident case. . . . . . . . . . . . . . 4

Confidential settlement achieved onbehalf of family of boy thrown fromwhale watching ship. . . . . . . . . . . . . . . . 4

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Defendant’s counsel argued that Tezelwas not speeding, and that it was sodark and raining so hard that hecould not see Mr. Dodge in thecrosswalk. Defense counsel referredto Mr. Dodge as the “invisiblepedestrian.” However, photographstaken by the police within an hourof the crash were successfully used torebut the argument that it was toodark to see a pedestrian in thecrosswalk.

Defendant’s accident reconstructionexpert testified that Tezel wasn’tspeeding, but his credibility wasundercut by simple and surgicalcross-examination. First, Jamesestablished that he had fabricatedportions of his C.V., including theassertion that he had been certifiedas an “accident reconstructionist” in1976 when in fact there was no suchaccreditation at that time.Also, hebased many of his speed calculationson tests conducted using an“exemplar” vehicle which turned outto be different from the defendant’smodel Accord (he used a 4-doorinstead of a 2-door).This simple and

subtle difference undermined all ofthe expert’s testimony.

The damages portion of the case wasprepared with equal thoroughness.The testimony of an expert life careplanner and a forensic economistestablished health care expensesand lost earnings of between $7million and $10 million for differentscenarios.A “Day in the Life” videowas prepared to show the jury thetravails that Mr. Dodge faces everyday of his new post-injury life.

The jury’s verdict appears tohave accepted all of the economicdamage calculations presented bythe plaintiff. They also addedapproximately $3 million forMr. Dodge’s pain and suffering.

The time James spent dissecting thedefense expert’s resume provedpivotal in the jury’s rejection of hisopinions and their acceptance ofour arguments on behalf of ourclient, proving the old axiom thatthe three key elements for asuccessful trial are preparation,preparation and preparation.

Massachusetts is known as a statein which plaintiffs are rarelysuccessful in asserting claims for thebad faith practices of liabilityinsurance carriers. Recently, however,Joe Musacchio of Kreindler &Kreindler’s Boston office successfullysued Arbella Mutual InsuranceCompany and obtained a judgmentof $1.1 million, including attorney’sfees, for its refusal to settle a claimwithin policy limits.

In refusing to pay a policy limitsdemand of $20,000, the Mass-achusetts auto insurer now has topay more than fifty times thatamount.And, as a result, our clientwill receive full compensation forher injuries rather than being limitedby inadequate insurance coverage.

On August 30, 1998, our client wasseriously injured when her motorvehicle was hit by a vehicle driven bydefendant Anthony Caban.Theaccident took place in Jupiter, Florida.

Arbella Mutual insured Caban underan automobile policy which hadlimits of $20,000 per person and$40,000 per occurrence.The liabilityof its insured was clear, and theplaintiff ’s damages without questionexceeded Caban’s meager policylimits, so a demand was made tosettle her claims for the full $20,000limit. In insurance bad faith cases, akey element of a claim is that, basedon the injuries and the liability, it’sunreasonable to refuse the full policylimit in exchange for a full release.Such a refusal fails to protect the

FEATURED CASE: Dodge v. Arda Tezel (continued) FEATURED CASE:Datillo v. Arbella MutualInsurance Co.

$1.1 Million Judgment Awarded inan Insurance Bad Faith CaseInvolving a $20,000 Insurance Policy

New and Noteworthy

insured against a judgment beyondthe policy limits.Along with thedemand letter, we provided a detailedsettlement package, includingmedical records and police reports.The demand was made one monthafter the accident, with an express 30-day time limit for acceptance on it.

Arbella Mutual ignored the policylimits demand and failed to informCaban of the offer to settle.Theylater misrepresented to him that thedemand had never been received.

On November 2, 1998, at theexpiration of the 30-day deadline,a lawsuit was commenced againstCaban in a Florida State Court.Realizing that he was at risk ofa large judgment against him,Caban agreed to the entry of a$450,000 judgment against himand he assigned his rights againstArbella Mutual to our client.Wethen sued Arbella Mutual under theassignment of Caban’s rights foracting in bad faith.

The essence of our claims againstArbella Mutual was that it had a dutyto protect Caban against excessliability, to convey settlementdemands to him, and to offer thepolicy limits when liability anddamages are reasonably clear.

At trial, Joe established that not onlywere Arbella’s practices unfair, butthe insurer’s conduct was willful. Heestablished that a six-month delay inresponding to the demand waspatently unreasonable. Each excuseoffered by Arbella Mutual for thedelay was rejected by the Court. Inthe end,Arbella Mutual was heldresponsible for the entire judgmentagainst Caban, plus attorney’s fees,costs and interest.

The Datillo verdict is a testamentnot only to the firm’s dogged pursuitof justice for our clients, but also tothe creative approaches that we taketo ensure full and fair compensation,even when the odds are not inour favor.

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Kreindler & Kreindler announces newadditions and promotions

Kreindler & Kreindler LLP is pleased towelcome Jennifer Johnston-Terando,who has joined us as an associateattorney in our Los Angeles office.Jennifer is a 2000 graduate of CaseWestern Reserve University School ofLaw in Cleveland, Ohio, where she wasAssociate Editor of Health Matrix:Journal of Law and Medicine. She alsoreceived her Bachelors of Science inNursing from Case Western.

Jennifer brings experience in healthcare, toxic torts, product liability,professional liability, cyber and employ-ment law. She is a Registered Nurse andhas worked at Cedars Sinai and UCLAMedical Center in Los Angeles.

Also in our Los Angeles office, partnerGretchen Nelson has been electedPresident of the Los Angeles CountyBar Association and also named Personof the Year by the MetropolitanNews-Enterprise.

Boston partner Anthony Tarricone hasbeen elected Vice President of theAmerican Association for Justice.

New York partners Noah Kushlefsky andJustin Green have been named to theBoard of Directors of the New York StateTrial Lawyers Association. In addition,Noah has been asked to co-chairNYSTLA’s Grieving Families Committee,which is working to improve New York’swrongful death damages laws.

Kreindler & Kreindler lawyers continueto speak and give presentations onvarious law and aviation topics aroundthe country

New York partners Marc Moller andBrian Alexander spoke at the 19thAnnual Aviation Law and InsuranceSymposium sponsored by Embry RiddleAeronautical University. Los Angelespartner Stuart Fraenkel was a featuredspeaker at the OshKosh Air Show andalso did a safety seminar for the LosAngeles Police Department’s AviationUnit on behalf of the Federal AviationAdministration. Los Angeles partnerMark Labaton has become a featuredcolumnist on complex litigation mattersin the Los Angeles Daily Journal andthe San Francisco Daily Journal.

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$3.3 Million Settlement Reached inHunting Accident Case

NewYork partner Noah Kushlefskyco-counseled with a prominentNew Jersey law firm and recentlyobtained a $3.3 million settlementfor a man who was shot andseriously injured while participatingin a deer hunt using the drivemethod.The case (Corino v.Gobbler’s Knob Hunting Club)demonstrates both the diversity ofour practice and our willingness toteam with other plaintiff ’s law firmswhen it serves the interests of ourmutual clients.

The liability issues in the casecentered on hunting safety andproper hunting procedures fordifferent types of hunts. Neverhaving hunted himself, Noahbegan by speaking with expertsand immersing himself in huntereducation course materials sothat he could effectively representour client.

A safe and successful deer driverequires careful preparation andcommunication. Each huntermust know the location of allother hunters and the limitationson where they can fire theirweapons (the zone of fire). Forthis reason, there must be a huntmaster who sets up the hunt anddisseminates to all hunters thenecessary information.

The victim was shot during anannual Thanksgiving weekend hunton property owned by one of thedefendants. Each year the propertyowner invited a group of friends,and was joined by members andguests of the Gobbler’s Knob HuntClub. Each year the number ofparticipating hunters grew, untilthe hunt was attended by what weclaimed was an unmanageably largegroup of hunters. On the day ofthe shooting, more than 22 hunterswere on the property.

The defendants in the case werethe shooter, the hunting club andthe property owner.The liabilitycase centered around themismanagement of the drive hunt.Some participants were assignedpositions without knowing thatthere was another hunter to theirleft or right. Some assignmentswere changed as the hunters weregoing to their spots.And, indepositions, it became clear thatdifferent participants had a differentunderstanding of proper positioningand the correct zone of fire.

Our client was shot twice, once inthe abdomen and once in the leg,by a hunter firing outside of hiszone of fire. However, the shooterbelieved he was shooting in thecorrect zone, pointing to misman-agement of the drive. Nevertheless,the shooter had also violated acardinal rule of hunting: identifyyour target and know what isbeyond it before taking the shot.

The shot to our client’s legruptured his femoral artery. Onlythe quick thinking of a fellowhunter, who applied a tourniquet,

saved him from bleeding to deathin the woods. He was evacuatedby helicopter.

Over the next two years our clientunderwent seven operations,including two fasciotomies andpainful skin grafting. He washospitalized twice with seriousinfections and developedcompartment syndrome whichcaused permanent nerve andmuscle damage to his leg. He wasunable to work or support hisfamily and suffered attendantfinancial and psychological distress.

Using his treating physicians asexperts, as well as a vocationalrehabilitation expert, a life careplanner and an economist, wewere able to demonstratesignificant economic loss, futuremedical expenses, permanentdisability, pain and suffering, andloss of enjoyment of life.

The settlement representedmaximum recovery potentialin the case.

Confidential Settlement Achievedon Behalf of Family of Boy Thrownfrom Whale Watching Ship

NewYork Partner Justin Greenrecently settled a case involving a13-year-old Boy Scout thrown froma whale watching ship in the AtlanticOcean off of Cape May, New Jersey.The accident occurred when the boyand several of his fellow scouts werestanding on the bow pulpit of theship as the captain navigated at fullspeed in rough waters toward thewhale watching area. Several of theboys had previously jumped with the

RECENT SUCCESSES

NAVY SEAL TEAM MEMBER KILLEDDURING TRAINING EXERCISE IN VIRGINIA

Kreindler & Kreindler has been retained bythe family of a Navy Seal who was killedduring a nighttime training exercise on theJames River near Jamestown Island inVirginia. The victim and two other specialwarfare sailors were navigating a 24-footrigid hulled inflatable boat when it wasstruck by a civilian tugboat which wasoperating without its running lights. Thecase is in the pre-suit investigation stage.The case is being handled by partnersNoah Kushlefsky and Daniel Rose, a formerNaval aviator.

KREINDLER & KREINDLER RETAINED INTWO CASES INVOLVING SPORT UTILITYVEHICLE ROLLOVERS

The firm is preparing to file suit in twocases involving sport utility vehicle

rollovers. Both cases focus on the ability ofthe vehicles to protect vehicle occupants inthe event of otherwise survivable accidents.

The first case involves a rollover of a FordF-250 pick-up truck. The accident occurredwhen the vehicle, while traveling at areasonable rate of speed, hit black ice.During the accident sequence, the driver’sside roof was crushed and nearly flattened,causing the driver, who would otherwisehave survived the accident, to die frompositional asphyxia. The passenger sideroof was not compromised and the passen-ger walked away with minor scratches. Byfederal regulation, the motor vehicle’s roofsare required to withstand certain impactloads to protect passengers. The roof of theF-250 failed to meet these requirements.

In the other case, a Ford Expedition rolledover after its driver swerved to avoid adeer on a highway. During the accident,the side rear windows blew out andallowed the two third row occupants to beejected from the vehicle. The remainingpassengers survived the impact. The FordMotor Company had identified concernsregarding the rear windows and recog-nized the need to protect passengers with

either side curtain air bags or advancedwindow glazing. Ford began to developside curtain air bags for the vehicle but ittook years to integrate them into thedesign. Rather than use the advanced glaz-ing system in the interim, Ford did nothingto solve this known problem. The accidentvehicle was manufactured while the sidecurtain air bags were in development. Thecases are being jointly handled out of theBoston and New York offices.

FIRM RETAINED TO REPRESENT FAMILIESIN KENYA AIR FLIGHT 507 CRASH

Kreindler & Kreindler has been retained torepresent families of victims of KenyaAirways flight 507, which crashed shortlyafter takeoff from Douala, Cameroon. Thecrash occurred when the pilot, alreadydelayed for an hour, elected to take off inbad weather. The flight took off even asflight crews for Cameroon Airlines andRoyal Air Maroc chose to wait out thepassing storm for a while longer. Thecrash occurred minutes after takeoff onthe aircraft’s planned flight path, a short5.5 kilometers from the airport. The Boeing737-800 aircraft carried 105 passengersand nine crew members.

IN THE WORKS

movement of the bow in the wavesbut had been instructed to stop.

The last time anyone saw the youngvictim, he was stationary and holdingtight to the ship’s rail. Moments laterhe had vanished, having been thrownoverboard.

The grieving family turned toKreindler & Kreindler to assist inthe inquiry into the accident. Ourinvestigation revealed that the ship’scaptain failed to take simple andappropriate precautionary measuresto avoid the accident, and thenreacted in a way that may havecontributed to the boy’s death.

It was learned that the bow pulpit isusually cordoned off by rope duringtrips to and from the whale watchingarea, but on that day the ship’s crewhad failed to secure the area.Thecaptain had a direct view of the boyson the bow, but did not order themout of the area until the ship hadanchored.The captain also failed towarn the passengers about the roughseas they would encounter or thedanger of standing on the bow pulpit.

It was also disclosed that the crewhad not been given federallymandated “man overboard” training.Further, the captain violated the

standard practice of immediatelyputting the ship’s engines in neutralto stop the propellers when the boywent overboard. Instead, he turnedthe ship toward where the boy hadfallen and put the engine in fullreverse. It’s possible that this causedthe boy to be sucked into the engineand propeller.The boy’s shirt wasfound wrapped around the propeller.

After building a compellingnegligence case against the ship’sowner and operator, the case wassettled for more than full value.

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RECENT SUCCESSES (continued)

The opening of our Boston office continuesthe firm’s commitment to aggressively andcomprehensively serving the needs of ourclients on both a local and a national level.While many law firms introduce themselvesto new communities through affiliationsand partnerships with local firms, we havechosen to grow organically from the groundup. The attorneys in the Boston office eachdistinguished themselves at other firmsbefore joining Kreindler & Kreindler, andeach meets the firm’s high standards ofprofessionalism and dedication to thepractice of law and to our clients.

As with our California office, we have fullyintegrated the Boston office and its attorneysinto our practice. Anthony, Joe, and James

all have active cases with attorneys in NewYork and Los Angeles. This allows the firm tobest represent our clients by staffing casesbased upon the expertise and strengths ofour attorneys regardless of geography.

The Boston office continues and maintainsKreindler & Kreindler’s standing as thepreeminent plaintiff’s aviation law firm in thecountry, if not the world. Kreindler &Kreindler has long been recognized aspioneering the practice of aviation litigationand the firm has had the lead role in most ofthe significant cases in the aviation lawfield. The Matthew Bender / Lexis Nexistreatise Aviation Accident Law, which is theseminal publication in the field, is authoredby members of the firm.

OUR NEW OFFICE OPENS IN BOSTON TO BETTER SERVE OUR CLIENTS AND COMMUNITY

100 Park Avenue • New York, NY 10017-5590

More InformationIf you would like to learn moreabout Kreindler & Kreindler LLPor about any topic discussed inthis issue, send us an email atinfo@kreindler.com, visit ourwebsite at www.kreindler.com,or call any one of our offices:

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