Maryland’s top 10 verdicts of 2010

Maryland’s largest verdicts in 2010 vaulted over most of the biggest from 2009.

But none came close to the size of last year’s No. 1 verdict — a $150 million award to 88 Jacksonville families who sued ExxonMobil Corp. for a massive gas leak at their local gas station.

In fact, despite the increased size of 2010’s verdicts, altogether the top ten don’t add up to that $150 million payout.

Richard Falcon, an attorney with Murphy PA who was instrumental in winning the second-largest verdict of 2010, said he doesn’t see the rise in monetary awards this year as a trend.

“Very good cases, tried very well, produce very nice verdicts,” he said. “I’m not aware of an upward trajectory.”

Pointing to a $276 million verdict Falcon’s firm won in 2002 when it teamed with attorney Stephen L. Snyder’s firm against First Union — which later became Wachovia Corp. and is now part of Wells Fargo — he said verdicts have been bigger in the past.

The growth may not be a trend, but it’s worth noting that the year’s top verdicts include eight worth more than $5 million, compared to just two in 2009.

#1: Undeveloped land

After 3½ years of litigation, a Montgomery County jury awarded the Penrose Group $36 million in March.

The jury found that two Bethesda families who hold the property where the developer had planned to build two high-rise apartment buildings did not hold up their end of the bargain.

Penrose entered into ground leases with partnerships owned by members of the Davis and Camalier families — holders of hundreds of acres in the Washington, D.C., suburb for the last century — in 2006 and have been battling ever since over 5 acres near Old Georgetown Road and Rock Spring Drive.

And the war rages on. Just as Venable LLP partner Brian L. Schwalb predicted in March when his developer client won the case, the litigation has continued.

The defendants have filed an appeal in the Court of Special Appeals and there was a hearing in early December in Montgomery County Circuit Court over attorneys’ fees for Penrose. The court awarded the Vienna, Va.-based developer $3.65 million in litigation expenses. It’s the third time a judge has awarded attorneys fees in the case.

Schwalb said the verdict is one of — if not the — largest verdicts awarded in Montgomery County.

“My experience as a trial lawyer is jurors don’t look at themselves as ATMs and they’re not willing to award millions of dollars … unless the plaintiff has proven an entitlement to the money,” he said. “I think it is a big verdict, but when you look at how many millions in dollars of profit my clients would have made had they been able to build the buildings in Bethesda, it might sound like less.”

Penrose stood to make $100 million had the buildings gone up, Schwalb said. But in fall 2006, the landowners would not provide needed estoppel certificates in order for Penrose to secure a $27.5 million investment and an $85 million construction loan from Northwestern Mutual Life Insurance Co. for the first of two 351-unit apartment buildings.

Litigation began that November.

“The jury figured out it was a high-stakes case where the landowners were attempting to renege on the deal they made with Penrose for their own gain,” Schwalb said.

#2: Carbon monoxide exposure

Workers at Baltimore’s Ruth’s Chris Steak House in the Pier 5 Hotel won a nearly $34 million verdict July 28 after suffering carbon monoxide poisoning at the waterfront hotel in 2008.

The judgment survived post-trial motions for a new trial or for reductions in the jury award to the 20 restaurant workers and three of their spouses in September. But, an appeal filed in the Court of Special Appeals means the case will go back to court, likely in June.

“We can kind of guess at what they’re going to do, but in the absence of a brief we’re not sure,” said Richard Falcon, a lawyer with Murphy PA, who was one of the lead attorneys on the case.

“The defendants have asked that the verdicts be capped,” he said. “I’m quite sure that that will be one of the issues on appeal.”

The jury found hotel owner TPOB Pier Five LLC and operator Meyer Jabara Hotels LLC each liable for negligence and an intentional public nuisance. It also found the operator liable for battery, an intentional tort.

Damages resulting from intentional torts generally are not capped.

The owner and operator of the downtown hotel conceded responsibility for the February 2008 leak at the restaurant during trial, but defense attorneys said the plaintiffs should receive unspecified “fair and reasonable compensation” for “temporary” symptoms.

The jury’s award went to 20 workers and three of their spouses, with medical expense awards ranging from $11,000 to $1 million, future lost wages running from $26,000 to $1.1 million, and pain and suffering of from $75,000 to $3.75 million.

“It’s important to keep in context that we’re talking about 23 complainants,” Falcon said. “This was not one person being awarded $33 million, which would be a different animal altogether.”

In November, another group of Ruth’s Chris employees who said they were exposed to carbon monoxide poisoning filed suit in Baltimore City Circuit Court seeking $39 million in compensatory damages.

Falcon said he and his colleagues are not actually seeking that amount.

“In Maryland you have to put a number in the complaint and the number has to be sufficient in the lawyer’s eyes so the jury is not handcuffed when it comes time to issue an award,” he said. “The addendum clause does not necessarily mean that we’ll ask the jury to actually award that number.”

#3: Lead poisoning

In the largest-known lead paint verdict in Baltimore, a city jury awarded a woman nearly $21 million for the poisoning she suffered while living in an apartment owned and maintained by the Housing Authority of Baltimore City.

The jury’s verdict, $825,000 in economic damages and $20 million in non-economic damages, was reduced because of the state’s cap on non-economic damages. Attorney Brian Brown said non-economic damages were reduced to $350,000, leaving his client, Marie Carter, with just over $1 million.

Carter faces more challenges, as the HABC has filed an appeal. Her life has been little changed “because unfortunately she’s in the same position as she was before, because she hasn’t seen any money,” said Brown, an attorney with Saul E. Kerpelman & Associates PA in Baltimore.

Due to the poisoning, Carter’s IQ dropped 10 points, to 89, which is below average, according to Brown. She has permanent brain damage.

Carter’s case was based on circumstantial evidence because the property at 3223 Cherryland Road had been demolished before it could be tested for lead paint. Despite the lack of evidence, Carter had elevated lead levels in her blood and was seen with paint chips in her mouth as a child.

The property was built before 1950, when many homes were coated with lead paint.

The defense did not put any witnesses on the stand, resting after Brown rested his case.

#4: Mesothelioma death

Joan Dixon’s husband, Bernard, worked a couple of nights a week in a friend’s garage, primarily on brakes of Ford cars in the 1960s and 1970s.

That’s when she was exposed to asbestos dust from his work with asbestos-containing cars that held replacement parts for the cars he was working on.

A Baltimore City jury awarded $15 million in April to the family of the Oakland woman, who died of mesothelioma in February 2009. The judgment could be reduced to $6 million because of Maryland’s cap on non-economic damages in wrongful-death claims by two or more individuals.

The family’s attorney, Jonathan Ruckdeschel, who has a firm in Ellicott City, said the court is still considering a final issue — Ford’s cross-claim against Georgia Pacific Corp. — in the motion for a new trial that was filed by Ford. Dixon’s family reached an out-of-court settlement with Georgia Pacific and two other companies before going to trial.

“The Dixons are hopeful that there will be some resolution soon, but we appreciate the court’s hard work in assessing the motion as it does with all claims that come before it,” Ruckdeschel said. “The judges have a hard job.”

#5: Oil-tanker asbestos

A Texas man also was exposed to asbestos from a family member’s work in the 1970s.

Leroy Conway Jr. claimed the asbestos dust and particles that came home on his father’s clothes caused his asbestos-related lung cancer. Conway’s father worked as an engineman on the oil tanker S.S. Baltimore Trader.

Following a 10-day trial in January, a Baltimore jury awarded nearly $10 million to Conway, including $9.3 million for his pain and suffering and $636,000 for his medical expenses.

Post-trial motions were filed by defendant ATTRANSCO Inc., the Baltimore-based company that owned and operated the oil tanker, said George Tankard III, an attorney with Waters & Kraus LLP in Baltimore. Conway and his family have been waiting some time for a decision to be issued.

“It is kind of sad because although his health is continuing to deteriorate, the family could use the money,” said Tankard, who represents Conway. “We’re hopeful.”

ATTRANSCO argued that it had not been made aware of the harm of asbestos exposure until the U.S. Coast Guard notified it in 1980, so it could not have been negligent and responsible for Conway’s terminal condition.

However, the plaintiff’s attorneys said the Occupational Safety and Health Administration began regulating asbestos exposure in 1971.

#6: Erratic driving

Dondi Johnson Sr. died two weeks after his arrest. His family claimed the injuries he suffered while in police custody led to his death.

A Baltimore City jury awarded Johnson’s family about $7.4 million — $5.1 million to his estate, with $5 million in non-economic damages; $1.1 million to each of Johnson’s two sons, with all but $34,000 in non-economic damages.

State law caps damage awards in local government tort claims at $500,000, but the family’s lawyer, Kerry D. Staton of Schochor, Federico & Staton P.A in Baltimore, said he would argue the cap does not apply in this case because the police van’s driver was found to be grossly negligent.

Johnson was picked up on a public urination charge in November 2005. Baltimore police officers placed him in their van without fastening his seat belt. The van operator’s erratic driving sent Johnson to Sinai Hospital with a fractured and dislocated spine, which resulted in quadriplegia.

Johnson remained in the hospital until his death on Dec. 7, 2005.

#7: Detached railing

A 15-foot fall from the fire escape of a Baltimore bar where Jasmin R. Carbaugh was celebrating a friend’s birthday left her unable to stand or walk unassisted.

A jury awarded Carbaugh a $5.9 million verdict in January against JAG Vending, a vendor who had once removed the fire escape’s railing and reattached it with rope while taking out a pool table.

The verdict included nearly $3 million in non-economic damages, which was expected to be reduced to $695,000 because of the state’s cap. The total would then stand at $3.6 million.

Carbaugh attended the 30th birthday party in February 2008 at Mahaffey’s Pub. While talking on her cell phone on the fire escape, which the bar owner said the party-goers could use, she was accidentally pushed off the fire escape when other guests opened the door to leave the party.

She suffered a burst fracture, a spinal cord contusion, a dislocated spine, eight fractured ribs and a skull fracture, according to her lawyers, Nathaniel Fick of Fick & May P.C. in Towson and J. Mitchell Lambros of the Cockeysville firm Lambros & Lambros.

Carbaugh suffers from incomplete paraplegia: she has some movement in her hips and knees but cannot control her feet or toes, so she cannot stand or walk without support.

#8: Pain in the neck

A couple won a $5.6 million verdict against a Chevy Chase doctor in June who they alleged caused the wife’s serious nerve and spinal injuries.

The Montgomery County jury awarded $2.5 million for lost wages, $276,000 for medical expenses, $675,000 for loss of consortium and $2.1 million for non-economic damages against Dr. Hadi Rassael. Attorneys Alan J. Belsky and Valerie A. Grove of Belsky, Weinberg & Horowitz LLC expected the verdict to be reduced because of the state’s cap on non-economic damages.

Nancy H. Marquez began feeling back pain in 2005 after a move to Maryland. When she went to Rassael, a doctor of osteopathy, she immediately felt something was not right.

But Rassael assured her he could treat her back problem and quickly twisted her neck without warning, ripping her brachial plexus. She suffered a disc injury and had to have surgery. She has been unable to work full-time since.

#9: Flaking paint

A pair of siblings ingested lead as children living in homes managed by Baltimore City’s housing authority, causing both to suffer permanent brain damage.

On Oct. 31, a jury awarded Antonio Fulgham and his sister Brittany McCutcheon $4.6 million, a reward that will likely be reduced to $2.9 million under Maryland’s statutory cap on non-economic damages in civil suits.

The case is still before the circuit court on post-trial motions brought by the Housing Authority of Baltimore City, according to the siblings’ attorney, David F. Albright Jr. of Bennett & Albright PA in Baltimore. That could result in the dismissal of the verdict or a reduction in its size.

In the case, Albright argued that HABC negligently failed to treat flaking and peeling paint in the houses where the siblings lived as infants. Fulgham, now 21, has an intelligence quotient of 54; 19-year-old McCutcheon has an IQ of 69.

The housing authority denied the allegations of negligence and said the jury ignored lead-free test results used as evidence.

#10: Delivery delay

Though Nicole Player’s son was born three months premature, doctors at the University of Maryland Medical Center waited 12 hours to deliver Darryl Gholston Jr. after noticing his umbilical cord had dropped below his body.

Her attorneys argued that the delay and the hospital’s negligence caused his cerebral palsy. A Baltimore City jury agreed, awarding her and 8-year-old Darryl $4.1 million on Nov. 5.

The defendant’s post-trial motions for a new trial were denied on Friday, said attorney Keith Forman of Wais, Vogelstein & Bedigian in Owings Mills.

The verdict, which included $1.1 million in non-economic damages, was reduced to $3.6 million under Maryland’s cap.

Forman said Nicole Player is “ecstatic” over the verdict.

Daily Record reporters Danny Jacobs and Steve Lash contributed to this story.