Settlements & Verdicts 2012

WARWICK,RI., AUGUST 14, 2012 – SETTLEMENT: $984,000.00 Environmental Liability for release of Gasoline and Dry Cleaning waste products.

The plaintiff, owner of a 4.5 acre parcel of land located in Warwick, RI, at the corner of Airport Road and Warwick Ave., (formerly the site of “Copperfields,” a well known bar/restaurant in the area), decided to sell the property and retire in 2007. He listed the property for sale and had a potential buyer who, as part of his due diligence, retained an environmental consultant/engineer to assess the property for any environmental contamination that may be present. Upon completion of the assessment, the engineer reported that the property and groundwater was contaminated at the western end of the property that abutted a gasoline station, by gasoline byproducts and at the easterly end of the property that abutted a dry cleaning business, by dry cleaning byproducts. The Rhode Island Department of Environmental Management (RIDEM) was notified and investigated the report.

As a result of the contamination, the Plaintiff retained Brian Cunha & Associates to represent him against the the gasoline station and the dry cleaners, both of whom denied that the contamination came from their respective businesses. They both claimed that numerous other businesses had operated for generations at that same location caused the contamination and not their companies. Attorney Brian Cunha, retained hydrogeologists and environmental experts who were able to demonstrate through groundwater flow, geology of the region and historical data that the contamination was caused by a leakage of product at the two locations. That same leakage was able to get into the groundwater and then flow onto the Plaintiff’s property. Both defendants also disagreed as to the damages that accrued to the plaintiff. The gasoline station claimed it had been ordered by the Department of Environmental Management to remediate the portion of the Plaintiffs property that the plaintiff claimed was impacted and therefore because they had cleaned up the property the plaintiff had not been damaged. The dry cleaner claimed that the cleanup was nominal and therefore would not agree to pay any damages.

Attorney Brian Cunha retained an economist, a realtor and commercial real estate appraiser to evaluate the plaintiffs damages.
One week before trial the gasoline station agreed to pay the Plaintiff $400,000 and to complete the cleanup of the gasoline by products and the owner of the dry cleaner agreed to transfer title of his land and building, valued at $584,000.00 to the plaintiff, and the case was settled.

BROCKTON, MA., JUNE 12, 2012 – JURY VERDICT: $119,195.18 – Medical Malpractice- Sexual Assault

A 35 year-old female client of the Massachusetts Dept. of Mental Health voluntarily admitted herself to a local hospital for treatment of her mental health condition. The local hospital called Pembroke Hospital in Pembroke, Massachusetts, a specialized mental health facility, and arranged to transfer her to Pembroke Hospital. Several strong medications, including Haldol, an anti-psychotic medication, were given to our client just before she was transferred to Pembroke Hospital.

An evaluation, assessment and review of her medications was conducted as part of her admission process into the Pembroke Hospital behavioral health facility. Doctors at Pembroke Hospital ordered additional medications including Depakote, Seroquel, Effexor and Klonopin (plus several others) be given to our client in specific dosages at specified intervals. Massachusetts regulations governing mental health facilities, which included Pembroke Hospital, require hospital personnel to check and visually confirm that each mental health patient is present in the unit of the hospital, which is secured by locked doors. It was the job of a specific certified nursing assistant (C.N.A.) to perform patient checks every 15 minutes. If a patient exhibited harmful behavior, or sexually acting out behavior, a higher level of observation, such as 1:1 would be implemented.

Just before going to bed, our client was given several large dosages of very strong medications intended to render her sedate for the night. After falling asleep, our client was awakened by a male mental health patient from the same unit, who had sneaked into her room, removed his clothes and was attempting to have sexual relations with her. Little, if any, force was used because she was so chemically sedated from all the medications. The hospital alleged the actions of the plaintiff and the worker was consensual and made a zero offer of settlement.

Our client had no lost wage claim and excluding the assault itself, she had no other physical injuries.

Attorney Richard Gallone of Brian Cunha & Associates tried her case before a Brockton Superior Court jury over four days and obtained the above favorable jury verdict.

PROVIDENCE, RI, MAY 29, 2012—Pascoag Environmental MTBE Contamination Case Settlement for 7 Million Dollars against Exxon Mobil

Providence Superior Court Judge Judith Savage approved a 7 Million Dollar Settlement of a class action lawsuit brought by the citizens of the Town of Pascoag, Rhode Island and the Rhode Island Water District against Exxon Mobil Corporation as a result of the contamination of their well water supply by MTBE in 2001. According to Attorney Brian Cunha, lead Rhode Island counsel, “this finally brings some satisfaction to the citizens of Pascoag after almost 10 years of litigation against Exxon Mobil for the contamination of the Town of Pascoag’s water supply.”

Methyl Tertiary Butyl Ether (MTBE), a gasoline additive that was mandated by the Clean Air Act of 1990, requiring that fuel oxygenates be added to gasoline to reduce carbon dioxide in the air, was first noticed in the Summer of 2001, when a strong disagreeable odor had been reported by various Public Utility District customers. On August 30, 2001, a resident of Pascoag, Rhode Island requested that a sample of his tap water be tested, as it had a bad taste. MTBE concentrations, above allowable state limits, were detected. Thereafter, an investigation by the Department of Environmental Management (DEM) revealed that gasoline containing MTBE had leaked from the Main Street Mobil Gasoline Service Station and contaminated the town’s well water. The DEM ordered that the Pascoag well pumping stations be shut down, and arrangements were made to pipe in well water from the neighboring Town of Harrisville.
In 2003 a lawsuit was filed against Exxon Mobil by The Law Offices of Brian Cunha & Associates, P.C. and the New York law firm of Napoli, Kaiser & Bern, LLP, alleging that the use of MTBE in gasoline was among other things, a defective product. The investigation revealed that Exxon Mobil and other oil companies knew MTBE posed a threat to drinking water years before the industry began blending the additive with gasoline.

According to lead Rhode Island counsel, Attorney Brian Cunha, “the Pascoag, Rhode Island case was the largest MTBE case in the history of the state.” Cunha added that “the documents showed that the oil companies knew about MTBE’s problems as early as the early 1980’s. The oil industry defended the use of MTBE, claiming that the federal government allowed MTBE to be used with knowledge of its characteristics.” MTBE readily dissolves in water and does not cling to soil near a spill site, as most chemicals do. It degrades slowly and travels quickly and travels far in water. “Other dangerous gasoline compounds, like benzene, are rarely found more than 300 feet from a spill site, while MTBE has been found, as in this case, thousands of feet away,” said Cunha. Documents and statements from Exxon Mobil and other oil companies show they knew all this almost as soon as they began producing MTBE in the late 1990’s. “When 20 percent of the tanks nationwide were known to leak, they put this stuff in tanks knowing it would make its way to ground water and drinking water supplies,” said Cunha.

In this case, the utility and citizens that sued over MTBE were not seeking damages because customers got sick from drinking the additive. Such claims are nearly impossible to prove, said Attorney Cunha. Instead, the damages were to compensate the homeowners for their inconvenience and to the Pascoag Public Utility District to allow them to install new wells, plus pipe lines to bring the water to homes once served by private wells. This includes the cost of putting filters in, digging up dirty soil and installing systems to pump the MTBE out of the water.

MIDDLETOWN, RI, MARCH 20, 2012: Settlement: $170,000.00 Pedestrian Struck by car crossing street.

On August 13, 2010, at approximately 2:45 p.m., the Plaintiff, Paula, left her job at Applebee’s Restaurant which is located on the Easterly side of West Main Road in Middletown, Rhode Island. (Paula intended to cross West Main Road in order to get the bus on the opposite side of the street) As Paula began to cross West Main Road, the traffic in the two northbound lanes and the first southbound lane stopped to allow her to cross, however, as she reached the slow speed southbound lanes a vehicle operated by the Defendant, failed to stop to allow Paula to continue crossing the street, and struck her causing her to fly 20 feet in the air and land on the roadway.

Upon arrival of the Middletown EMS, Paula was found lying in the street with severe right femur fracture, abrasions to her entire right side, lower back and right eye. Traction was placed onto her right lower leg, C-collar was placed and Morphine started. She was transported to Newport Hospital for further evaluation and treatment of her injuries.

Upon arrival in the Newport Hospital emergency room department, an x-ray of the right thigh, confirmed Paula had sustained a fracture of the lower upper third of the right leg. She also sustained contusion to the chest wall and a fractured rib.

Because the severity of her injuries, Paula was transferred to Rhode Island Hospital.

Paula retained Brian Cunha & Associates to represent her in this case.

The case was challenging as three eye witnesses claimed that Paula crossed the street without looking and did not use the cross-walk that was leess than 50′ away. Nevertheless, Attorney Brian Cunha was able to convince the insurer that the Defendant was travelling at an excessive speed and should have been able to see the Plaintiff as she was crossing. The case settled at the end of an all day mediation session in Providence R.I.

FALL RIVER, MA, FEBRUARY 9, 2012: Settlement: $132,500.00 – Motor Vehicle Accident

On January 31, 2011, the Plaintiff, Natalie, was operating her motor vehicle in the left hand lane on Route 24 South near Exit 8 in Fall River, Massachusetts. Due to road construction, the Plaintiff moved into the right lane. As she traveled in the right lane, traffic slowed and then came to a stop. A tractor trailer, operated by the Defendant and owned by NDL Lefever Trucking, failed to stop and struck her vehicle in the rear.

The Fall River Fire EMS were dispatched to the scene of the accident. Upon arrival the Fall River Fire EMS found Natalie sitting in the driver’s seat. Natalie was conscious but had no recollection of the incident or time preceding. Examination revealed a large area of swelling. The Plaintiff was extricated from the vehicle via a long board and secured with straps. She was then transported to Rhode Island Hospital.

Upon arrival at the Rhode Island Hospital emergency room, Natalie was examined. She had complaints of head pain with nausea and dizziness and chest pain. It was noted she had a laceration to the posterior scalp which was irrigated with saline and the wound was closed with staples. She had a laceration on her forehead into the hairline and a right hand laceration which were dressed. Various x-rays and Ct scans were ordered to rule out fractures and internal injuries. A head CT scan showed a facial fracture.

Prior to hiring Brian Cunha & Associates the insurance company offered the Plaintiff $50,000 to settle her case. The Plaintiff retained Brian Cunha & Associates to represent her in this case and suit was filed. From the outset, the Defendant alleged that the Plaintiff was negligent when she cut in front of the defendant’s truck as traffic merged into one lane.

Within weeks of filing suit ,Attorney Sharon D. Sybel convinced defense counsel that the insurance companies offer of $50,000.00 was wholly insufficient given the nature and extent of Plaintiff’s injuries. Attorney Sybel also disputed defense counsel’s theory that the Plaintiff was negligent in her operation of her vehicle. The case settled for the above amount after extensive negotiations.

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