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Cross Examination of Expert Witness ALM Template – Presentation

June 4th, 2013

Anatomy, Diagnostic Testing and Medical Experts: Winning Strategies for Plaintiff’s Direct and Cross-Examination.

Brandon Swartz is a founding partner of Swartz Culleton, PC. His practice focuses on all types of personal injury cases including wrongful death, medical malpractice, civil rights violations, motor vehicle, premises liability, products’ liability, trucking accidents and workers’ compensation.  Mr. Swartz’s legal career has been highlighted by several outstanding results including a $12.5 million jury verdict obtained on behalf of a man injured in an industrial work accident; A $3 million settlement in the Eastern District of Pennsylvania on behalf of a child who was born prematurely with substantial developmental defects after his mother consumed turkey deli meat infected with Listeria; a $1.5 million settlement in the Bucks County Court of Common Pleas on behalf a construction worker who fell through a roof, the third highest settlement ever reported in Bucks County, Pennsylvania; a $6.5 million settlement in Philadelphia County for a plaintiff injured by a defectively designed trash truck; and a $1.895 million settlement in Philadelphia County for a victim of a gas explosion. Mr. Swartz has also obtained numerous favorable awards and settlements representing hundreds of injured workers’ compensation claimants in the Greater Philadelphia region. He graduated cum laude from Temple University School of Law.

Trash Collector Resolves Claims in Products Case

February 25th, 2013

Products $6.5 Million Settlement

Date of Settlement: January 14.

Court and Case No.: C.P. Philadelphia No. 100403422.

Judge: Marlene F. Lachman.

Type of Action: Products liability.

Injuries: Internal organ damage; spinal cord injury; need to use colostomy and urine bags; evisceration of scrotum; amputation of right leg and phantom pain from missing leg.

Plaintiff’s Counsel: Christopher J. Culleton and Brandon A. Swartz, Swartz Culleton, Newtown, Pa.

Defense Counsel: Mary Ellen Conroy, Cipriani & Werner, Blue Bell, Pa.

Comment: For $6.5 million, the maker of the body of a recycling truck has settled a trash collector’s claim that the placement of steps before the rear wheels of the vehicle caused him to fall and then be run over by the truck.

Plaintiff, working as a trash collector for waste disposal company J.P. Mascaro, was run over while picking up recyclables on his route October 9, 2008, leaving him with internal organ damage.

Settling defendant Conshohocken Steel Products was “the focus, because the theory in the case was the truck was in violation of ANSI [American National Standards Institute] standards because it had steps on the side of the truck in front of the rear wheels that could be used as riding steps and under the ANSI standards, any riding platforms for a trash truck have to be behind the rear wheels,” said plaintiff’s attorney Christopher J. Culleton.

The defense position was that the steps were to be used in loading the recycling truck through doors on both sides of the truck, not for riding between houses and businesses on pickup routes, Culleton said.

The defense also argued that the Plaintiff’s employer, J.P. Mascaro, had a policy banning recycling workers from riding on the steps between stops, but the plaintiff argued that the policy was not effectively enforced, Culleton said.

While the defense said the driver of the truck had simply backed up over our client, Culleton said a woman who lived on the street had witnessed that the truck had not backed up.

Of greater concern was that it would be difficult to explain how the Plaintiff got under the truck when our client’s recollection was that he fell off of the steps as the truck was starting to move, Culleton said. Chisolm’s feet and knees were not damaged, and it was only his midsection that was run over, he said.

“We were concerned about the fact it was very difficult to explain how he got under the truck doing what he said he was doing,” Culleton said.

That was one issue the defense raised in its court papers.

“The mechanics of plaintiff’s fall are mind-boggling,” the defense pretrial memorandum said. “He claims he fell backwards off the truck. If the plaintiff were to fall backwards off the truck, his feet would have landed in close proximity to the truck, and his head would have been facing the street. One would expect injuries to the head. In this case, plaintiff landed face down, with his head facing the truck, and his feet facing the street. The back tires of the truck ran over the plaintiff, leaving evidence of tire markings. He was clearly under the truck.”

There also was a dispute as to whether our client was run over twice, according to court papers.

Culleton also said he and co-counsel were concerned that our client had signed paperwork indicating that he was aware of the policy that workers were not to ride on the trucks’ steps. But the attorney said they were able to find two former employees who would have testified they were unaware of the policy against riding on the trucks’ side steps.

The plaintiff also argued that Conshohocken Steel should have affixed a warning that the steps on its trucks’ bodies were only to be used for loading, not riding between stops, according to court papers.
Culleton said he and co-counsel were concerned about seeming to “hammer” a “mom-and-pop” manufacturer when the large trash company was not in the case because of statutory immunity under the Pennsylvania Workers’ Compensation Act.

Conshohocken Steel “would have an empty-chair defense” to point at J.P. Mascaro and J.P. Mascaro’s driver, Culleton said.

There is a $3 million workers’ compensation lien, Culleton said, but the lienholders have agreed to accept a reduction on the lien down to $2 million.

The plaintiff was very successful in keeping the litigation in Philadelphia when the events occurred in Reading, Berks County, Culleton said.

Two other defendants, Daimler Trucks North America and Sherwood Freightliner, Sterling and Western Star, the manufacturers and distributor of the truck and the truck chassis, settled early for confidential amounts, Culleton said.

The insurer for Conshohocken Steel is Ohio Casualty Insurance Co., Culleton said.

The defense counsel for Conshohocken Steel did not respond to a request for comment.

Amaris Elliott-Engel, of the Law Weekly


$1,892,500 Settlement for the Victim of a Gas Explosion

February 2nd, 2012

On a cold winter day, a 49 year old construction site foreman arrived early for work. As he had done on many prior occasions, the man unlocked the company storage container and set about lighting the propanefueled heater used to heat the container which, in addition to storing tools, served as shelter for the employees. The man turned on the gas and clicked the igniter. A large explosion occurred on the fifth click: the man was thrown against the side of the container and sustained second and third degree burns to 7-8% of his body.

The Fire Chief, who heard and felt the explosion from his home one mile from the accident site, immediately traveled to the scene to investigate. A leak was detected from a valve on the propane cylinder. Ultimately, the Fire Marshall concluded the explosion occurred as a result of the leaking valve.

Brandon Swartz of the Swartz Culleton law firm filed suit on behalf of the injured worker against the gas cylinder manufacturer and several component makers, alleging that gas leaking from the valve had accumulated in the storage container, creating the conditions for an explosion. However, during testing, flow meter measurements of gas leaking from the valve called into question the role played by the valve in the explosion. The defendants’ experts placed the gas cylinder inside a sealed chamber and measured the propane leak with an electrical flow meter. The results showed that the amount of propane leaking from the cylinder was too small to have filled the work container with a propane concentration of 2.1%, which is the minimum concentration required for combustion. The defendants argued that the Fire Marshall had rushed to judgment and had overlooked other possible causes for the explosion, such as acetylene welding equipment that was also stored in the container.

Faced with the defense’s compelling calculations, Brandon Swartz and his expert went back to the drawing board. While the defense’s rationale made sense, Swartz was convinced of a flaw in their theory because the possibility that the valve leak was a mere coincidence was just too unlikely. He recalled that prior to the flow meter test, soapy water had been placed on the valve to locate the leak. The escaping gas created a ½ to ¾ inch bubble every second. Using that fact, he calculated that the propane was leaking at a rate of .3 cubic feet per hour, a much higher rate than had been measured using the flow meter. Additionally, because the accident had occurred following a three day holiday weekend, the gas had been leaking into the container for three days before the accident, and not two days as assumed by the defense. Using this new data, the plaintiff’s expert calculated that at the time of the explosion, the concentration of propane from the valve leak was 2.1%, enough to create the blast. Soon after receiving the plaintiff’s report, the gas cylinder manufacturer and other defendants agreed to settle.

Swartz Culleton Settles Motor Vehicle Accident Case for $1.65 Million

February 2nd, 2012

A 62 year old Catholic school teacher who broke both her legs in a head-on motor vehicle collision in Montgomery County has settled her personal injury lawsuit prior to trial for $1.65 million. The plaintiff was on her way home from work when an auto repair parts delivery driver, traveling in the opposite direction, crossed Swartz Culleton Settles Motor Vehicle Accident Case for $1.65 Million the lane divider into oncoming traffic, striking the plaintiff.

A hotly contested fight early in the litigation concerned the defendant driver’s efforts to have the case transferred to Montgomery County from Philadelphia, where the plaintiff’s lawyers, Swartz Culleton, had filed suit. In an effort to have the case moved to a more defendant friendly court, the defense lawyers argued that there was no Philadelphia connection because the accident happened in Warminster, Montgomery County and both the plaintiff and defendant lived and worked in Montgomery County. Swartz Culleton attorney Chris Culleton was successful in keeping the case in Philadelphia through evidence from private investigators that the defendant driver’s employer sold auto parts to Philadelphia repair shops.

As the case approached trial, Swartz Culleton assembled a barrage of reports from vocational, rehabilitation, actuary economic and medical experts that placed dollar values on the plaintiff’s financial loss and future care costs. Attempts at settlement by a private mediator in October 2011 failed after the plaintiff’s team rejected what the defendants claimed was their final offer. Weeks later, however, and with trial looming, the defendant’s insurance carrier increased its offer and the case settled.

Factory Worker Settles Injury Claim for $525,000

February 2nd, 2012

A 62 year old production line worker who was injured when he fell from a catwalk has settled his career-ending shoulder injury claims for $525,000.

The employee was represented by Swartz Culleton attorney Brandon Swartz, who conducted a forensic accident investigation to determine if any company other than the employer was responsible for causing the accident. An engineering and design safety review concluded that the manufacturer of the catwalk had violated numerous engineering design principles by making the catwalk too narrow and without a hand rail. Swartz Culleton filed suit against the catwalk manufacturer in Philadelphia County. After deposition testimony, the manufacturer asked for early mediation. A key component of the settlement was the plaintiff’s claim for loss of future earnings. Although the injured worker was less than three years from retirement age, Brandon Swartz assembled a team of vocational and actuary economic experts to show that the employee had a significant future wage loss claim based on productivity increases and the value of fringe benefits and non-work activities. Brandon Swartz explained that, “just because an employee is close to the retirement age, the impact of a work-ending injury on the employee’s future earnings can still be substantial; it’s just more complicated than the usual simple math of multiplying the worker’s weekly wages by the number of weeks until retirement.” “Many retirees return to the workplace in a different capacity or perform other services for dependants,” said Swartz. “The key is to quantify the economic value of those services and activities.” Following mediation, the case settled for $525,000.

$630,000 for Motor Vehicle Accident Victim

February 2nd, 2012

Swartz Culleton has settled multiple claims on behalf of a 48 year old woman who sustained bilateral lower extremity fractures in a Chester County motor vehicle accident for a total of $630,000.

Passenger Obtains $300,000 Settlement for Broken Leg

February 2nd, 2012

Christopher Culleton of Swartz Culleton obtained a $300,000 settlement for a man who sustained a broken leg in an auto accident involving a single vehicle. The plaintiff, who was a passenger in the vehicle, made a full recovery but missed work for four months and underwent medical treatment for twelve weeks.

Widow Receives $150,000 in Settlement of Late Husband’s Bedsore Case

February 2nd, 2012

Swartz Culleton obtained a $150,000 settlement for a Bucks County woman whose husband developed a Stage IV sacral bedsore during medical treatment for a fracture caused by a fall at home. The bedsore required surgery to remove dead tissue and took three months to heal. The husband died of unrelated causes after suit was filed.

Bed sores, also called pressure sores or decubitus ulcers, are caused by poor hydration and nutrition and the lack of pressure relief measures such as frequent turning and use of special beds and cushions. Unrelieved pressure can cause skin breakdown and necrotic tissue. Common sites for bedsores are the buttocks, sacrum and heels. The severity of a bedsore is classified by Stages from I to IV, with IV being the worst. Bedsores are painful, debilitating and disfiguring. In general, bedsores should not happen.

Girl Sues Dad Who Was Shot in Road Rage Incident

July 11th, 2011


July 11, 2011

When Thomas Timko made an obscene hand gesture to a driver who irked him, he may not have predicted the disastrous chain of events he set in motion — but his daughter believes he could and should have, and she’s suing him to prove it.

Driving home in October 2008 after taking his daughter Kaitlyn, now 11, for a day of shopping and swimming, Timko became angry when another driver cut him off on the Walt Whitman Bridge near Philadelphia, and flipped the guy the finger.

Unfortunately for Timko, he picked the wrong driver to tick off. Christian Squillaciotti, a schizophrenic former Marine with a gun, responded by firing four times into Timko’s car, striking him in the head.

Miraculously, not only did Timko survive the shooting and manage to stop the car, but Kaitlyn in the back seat was unharmed by the bullets or shattered glass.

For both father and daughter, however, the incident has had a crippling aftermath. Timko suffered permanent brain damage and struggles with a disfiguring scar and soaring medical debts. As for Kaitlyn, her mother Lori Hardwerk, says she’s never psychologically recovered.

Now Kaitlyn, through Hardwerk, is suing her father for compensation, saying his road rage not only provoked his own shooting, but left her with lasting emotional scars.

According to Hardwerk, who never married Timko though they were together for 20 years before they broke up in 2009, Kaitlyn has displayed signs of severe trauma since the shooting occurred.

“Prior to the incident, Kaitlyn was very outgoing and energetic — a normal little girl,” Hardwerk said. “Afterwards, she went into a shell. In addition to being extremely shy and introverted, Kaitlyn became afraid of being away from me and is very nervous when she is out of my sight.”

Hardwerk arranged for Kaitlyn to have weekly therapy visits that were set up by a crime victims’ program, but she says they haven’t resolved Kaitlyn’s issues and nearly three years after the shooting her daughter still displays signs of emotional damage.

“Kaitlyn remains afraid of anything that she cannot control, as well as loud noises, such as fireworks, thunder, motorcycles, etc,” says Hardwerk.

According to child psychologist Dr David Fassler, a clinical professor of psychiatry at the University of Vermont, this horrific experience contained a perfect storm of factors that lead to Kaitlyn’s lasting trauma.

“Direct exposure to violent and confusing events involving people you know will typically have a more significant and lasting effect than a distant event involving strangers or acquaintances,” he said.

“Kids also tend to react more to incidents which threaten the stability and predictability of their lives and immediate families,” he says. “Kids who’ve had such experiences often require comprehensive and ongoing treatment to help them cope and go on with their lives.”

But it’s exactly this type of treatment that Hardwerk, who has not worked since a 2001 car accident left her disabled, says she cannot afford, and the initial insurance payout didn’t cover.

Kaitlyn’s attorney, Christopher Culleton of law firm Swartz Culleton PC, said Timko exacerbated a potentially deadly situation and deserves be held accountable.

“He cannot provoke other drivers, especially when he has his kid in the car,” Culleton said. “Mr. Timko gave him the finger, through the sunroof. That escalated the situation.”

But Timko’s attorney Kevin McNulty says it’s a case of misdirected anger.

“In no way was Mr. Squillaciotti’s act of shooting another driver a normal consequence of driving into the lane of travel of another vehicle,” McNulty wrote in a motion to dismiss the case. “Mr. Squillaciotti is the proximate cause of her alleged emotional distress, not her own father.”

McNulty also argued that the alleged harm to the plaintiff is so remote from the actions of the defendant, that the defendant cannot be found legally responsible.

A judge in Philadelphia’s Common Pleas Court denied the motion and the case has now moved to discovery, but is not expected to go to trial for more than a year.

Even more surprising, perhaps, than the decision to sue her own father, Kaitlyn’s suit doesn’t name his shooter, Christian Squilliacotti. While he may seem the most obvious target for a lawsuit, Squillaciotti — who was convicted of two counts of attempted murder and weapons charges and is currently serving a 13- to 26-year jail term — has no assets, and his insurance would actually not apply because the shooting was intentional. The former Marine has also been diagnosed wtih schizophrenia.

The suit does name his wife and passenger, Chastity Squillaciotti. as a defendant, climing that she bears some responsibility because she knew about her husband’s mental health issues, but neglected to prevent him getting behind the wheel while aggravated.

“Clearly she knows her husband’s got problems, and she’s sitting in the car while he’s driving,” Culleton said. “We need to explore whether she should have done something, whether she could have done something.”

Christian Squillaciotti told police that following Timko’s hand gesture, he heard voices urging him to kill the man, saying, “Kill him, kill that motherf—–,” just seconds before he opened fire into the car.

Police said they found numerous weapons at Squillaciotti’s home; but that Squillaciotti did have a gun permit. Culleton said the family hasn’t ruled out a law suit against whoever was responsible for granting Squillaciotti’s permit, but the investigation into those circumstances is still ongoing.

“We are still in the early stages of discovery and have not yet learned the exact circumstances of how the shooter obtained the permit or whether the permit was even valid at the time of the shooting,” he said.

The Philadelphia Police Department, which handled the Squillaciotti case, has not yet commented on the status of that investigation.

In the meantime, Kaitlyn will press forward with what may at first seem the unprecedented step of suing her own father, a man who was critically injured by the incident in question.

But children suing parents for a trauma they believe the parent caused isn’t as rare as you might think. Not only does it happen, but the parents are sometimes to a certain extent complicit, despite being defendants in the suit.

In 2007, Teddy Harrison of Anoka County, Minn., successfully sued his parents over a car crash in 2001 that left him permanently disabled. Harrison’s parents were willing defendants, as their attorney Robert King explained to The Associated Press at the time.

“This suit is about forcing the parents’ insurance company to live up to its responsibility,” King told the AP.

As a result of the suit, the Harrisons’ auto insurance company was forced to pay Teddy $100,000, money that contributed to his ongoing care.

While Timko, as both victim of an out of control road rage incident, and Kaitlyn’s father, might seem like an unlikely defendant because he has no assets, this suit, like the Harrisons’, will target his insurance on the basis of negligent driving.

“Kaitlyn continues to have an active relationship with her father and they still have visits with each other,” Hardwerk said.

The suit doesn’t accuse Timko of routine reckless behavior or general bad parenting, and it’s likely Timko is aware this may be his daughter’s only way of supporting her ongoing psychological care.

Culleton offered some insight into the possibility that what may seem like a situation fraught with vitriol, may in fact not be.

“Regardless of familial relationship, there is no impediment to bringing a claim against an offending family member,” he said. “It does not imply or require hard feelings.”

It’s certainly the case that Timko’s initial insurance was not sufficient for this particular eventuality. Many people only carry the minimal auto insurance, which in Pennsylvania would pay out a mere $5,000 towards medical expenses.

Sayde Ladov, past chancellor of the Philadelphia Bar Association and partner in the law firm of Dolchin, Slotkin and Todd said the case shines a light on the imperfect nature of the insurance system.

Most motor vehicle policies exclude coverage for intentional acts, such as Squillaciotti firing a gun into the car. Some policies include “uninsured motorists coverage,” in which case you have to proceed against your own carrier to gain benefits.

Most drivers don’t carry the most comprehensive insurance, which might cover such eventualities, because they’re more expensive. Even with the most expensive policies, there are usually several exclusions.

“Insurance can only insure against what is a forseeable risk,” Ladov said. “And if the risk is not forseeable and the gentleman who is the shooter has no assets and the insurance policy on her dad’s vehicle doesn’t cover it, Kaitlyn’s out of luck.”

Kaitlyn and her father have handled the situation by simply not discussing the case, Hardwerk said, but Fassler cautioned that if the suit does create further friction between Kaitlyn’s parents there’s a danger it may still be counterproductive for Kaitlyn herself.

“Ongoing conflict between parents, with or without legal involvement, puts kids at increased risk of emotional and behavioral problems, Fassler said. “In general, the sooner things get resolved, the better, for everyone involved.”

Philadelphia Jury Awards $1.5 Mil. for Parking Lot Accident

April 15th, 2011

Todd M. Felzer, of Swartz Culleton,

A Philadelphia jury awarded $1.5 million earlier this month to a former Mercy Hospital of Philadelphia employee who said he suffered spinal injuries after hitting a cement pillar in his employer’s parking garage.

Philadelphia Common Pleas Judge Patricia A. McInerney presided over the four-day trial, which resulted in the jury awarding $1.5 million in damages March 10. The jury found Mercy Hospital negligent and did not find the plaintiff in Mapp v. Mercy Hospital of Philadelphia negligent, according to the verdict sheet.

Antywn Mapp, now 31, was working as a mental health technician at Mercy Hospital when he arrived at the hospital’s parking garage on the morning of Feb. 27, 2008, according to the plaintiff’s pretrial memorandum. He drove up to the roof because no spaces were available at the lower levels. Mapp alleged that, as he began turning into a parking spot, his vehicle slid on ice that had not been cleared, he applied his vehicle’s brakes, but the vehicle continued to slide until he hit a cement pillar.

Because of the collision, Mapp sustained injuries to his lumbar and cervical spine, the plaintiff’s memorandum said. Mapp tried to work in a light-duty capacity at his mental health technician job in which he would sometimes have to restrain patients during violent episodes. But low back and neck pain meant that Mapp had to leave a job that paid him $50,000 a year in favor of a job as a residential counselor that pays him $25,000 a year, the plaintiff argued.

Plaintiff’s counsel Todd M. Felzer, of Swartz Culleton in Newtown, Pa., said the biggest aspect of the damages award was the fact that Mapp’s career as a mental health technician was ended after the accident.

There was no dispute that the accident occurred, but there was a dispute over whether the hospital was negligent or not, Felzer said.

“Their defense was, number one, they contended that there was no defect, there was no ice on the roof,” Felzer said. “Number two that the hospital wasn’t on notice even if there was a defect.”

“It is defendant’s position that plaintiff’s accident was the result of his own negligence and the injuries are not the result of any negligence on the part of defendant,” the defendant’s amended pretrial conference memorandum said.

The plaintiff argued that the hospital failed to inspect the parking garage roof for ice and snow and to treat the ice and snow, according to the plaintiff’s memorandum.

“By failing to anticipate melting, water run-off and re-icing of the parking surface, and to treat same, defendants were negligent and proximately caused the serious injuries sustained by plaintiff,” the plaintiff’s pretrial memorandum said.

Defense counsel Frank A. Gerolamo, of Gerolamo McNulty Divis & Lewbart in Philadelphia, said that both liability and damages were disputed in the case and “it was a credibility issue on whether or not there was ice on the parking lot.”

Regarding Mapp’s damages, the defense contended that he had a lot of pre-existing herniated discs, Gerolamo said.

Gerolamo also said that Felzer did a nice job with the case.

The plaintiff’s medical expert was Dr. Roy Lerman, a pain specialist with Main Line Spine in King of Prussia, Bala Cynwyd, and West Chester, Pa, and the plaintiff’s vocational expert was Rosalyn Pierce, of RP Vocational Rehabilitation in Philadelphia, Felzer said.

The defense experts included orthopedic surgeon Dr. Neil Kahanovitz in West Orange, N.J., and radiologist Dr. Nancy Major of the Hospital of the University of Pennsylvania, Felzer said.

While liability and damages were equally contested, neither side presented liability experts, Felzer said.

There was no high-low agreement and no offers extended to settle the case, Felzer said.

There was a stipulation that the hospital owned and controlled the parking garage, which is attached to the hospital, Felzer said.

Pennsylvania workers’ compensation did not apply because Mapp was not in the course and scope of his employment, the plaintiff’s memorandum said.

The defendants have filed post-trial motions, which are still pending, according to the docket.

Defense co-counsel was Christina J. Kubiak of Gerolamo McNulty.