Subject: Top Ten Jury Verdicts of 2006

Pub: Lawyers USA

Author: Correy E. Stephenson

Category: Justice,Transportation,Automotive

Sub-Category: Courts

Issue Date: 01/15/2007      Word Count: 1023

Top Ten Jury Verdicts of 2006:  Wrongful death case

by Correy E. Stephenson

Dolan Media Newswires



State: Missouri

Type of case: Wrongful death

Trial: Two weeks

Deliberations: Less than 5 hours

Status: Settled 

Case name: Silva v. Consolidated Freightways Corp.

Date of verdict: March 2, 2006

Plaintiffs' attorneys: Stephen M. Gorny and James P. Frickleton of Bartimus, Frickleton, Robertson & Gorny in Kansas City, Mo.

Imagine being wheeled into the operating room in excruciating pain, knowing that when you come out, you will be missing another body part - and then doing it 27 more times.

That was the picture plaintiffs' attorney Stephen M. Gorny painted for jurors in his closing argument at a March 2006 trial, before they awarded his clients.

The horrific story began when Ana and Jose Silva took a road trip to visit a sick relative. When they encountered several accidents on the highway caused by patches of fog, they slowed their car, only to be rear-ended by a truck.

The impact caused their car to explode in flames, killing Ana at the scene.

Jose, who managed to escape from the car with burns on 85 percent of his body, lingered for more than a month before he died.

Gorny, a Kansas City attorney who represented the couple's parents, wasn't surprised by the size of the verdict.

"If ever there was a case that warranted a verdict this large, this was it," he told Lawyers USA, noting the victims' horrific injuries and the fact they were conscious for the experience.

Gorny said the verdict - delivered by a unanimous 12-person jury after just four and a half hours of deliberation - is believed to be the largest non-punitive award in a wrongful death case in Missouri.

"This was a case tried on liability, and we lost," he said.

Patches of fog

The Silvas (Ana, 23, and Jose, 24) were driving from Chicago to El Paso, Texas when they encountered dense fog in the early morning hours outside Joplin, Mo. They began to slow their car when they came upon several accidents and a truck stopped on the highway, but their 1993 Nissan Altima was engulfed in flames when it was hit from behind by a Consolidated Freightways truck with two trailers attached.

Witnesses later testified that they heard a female screaming from inside the flames.

Gorny said an autopsy of Ana Silva's body revealed no trauma from the car accident, meaning that she was fully conscious and alive for several minutes before she died from her burns.

Jose Silva suffered even more prolonged pain. Because burns covered the majority of his body, doctors were unable to completely sedate him, and Silva was conscious of what was going on.

"He had so many open blood vessels, and the doctors were concerned because of the threat to his blood pressure," Gorny explained. So as the days went on and doctors fought a losing battle against infection, Silva repeatedly returned to the operating room for a series of amputations.

"He lost one leg and foot, all the fingers from his right hand and then numerous muscles from various areas because the burns were so deep," Gorny said. Throughout the ordeal, Jose repeatedly asked about his wife, although his family and doctors decided not to tell him she was dead.

"They were concerned that the only thing keeping him alive was the hope of being reunited with his wife, and they were concerned that if they told him about Ana, he would lose all hope," Gorny said.

But even hope couldn't keep Jose alive, and he died 37 days after the accident.

The Silvas' parents sued Consolidated Freightways of Vancouver, Wash., which owned and operated the tractor-trailer.

At trial, Gorny argued that the truck driver failed to follow federal trucking regulations - specifically Sect. 392.14 of the Federal Motor Carrier Safety Regulations, which requires professional drivers in adverse weather conditions to slow down or get off the road.

"We had 15 witnesses at trial who testified about the worsening patches of fog," Gorny recalled. "The Consolidated Freightways driver was the only person who took the stand and said that he didn't encounter anything until this one patch."

Gorny believed the trucker's testimony juxtaposed with so many other witnesses (including another professional driver, who had actually stopped his vehicle) hurt the defense's credibility with the jury.

The defense also argued that the Silvas' car was actually hit by another vehicle that caused the fire, and that the Altima was so badly burned, a definitive paint transfer couldn't be made linking the Silvas' vehicle to the Consolidated Freightways truck.

"But in order to believe their accident reconstructionist, the jury would have had to disbelieve all the eyewitnesses at the scene," Gorny said, including the driver of the vehicle the defense claimed hit the Silvas.

"The jury had to make a decision about who they were going to believe - a highly paid expert or a number of regular people who lived through the experience," Gorny said.

Final settlement

At the end of the two week trial, the jury awarded the Silvas' parents.

The defense successfully filed a motion for remittitur, which reduced the verdict and the parties then settled the case for an undisclosed amount.

Gorny, who became involved in the case soon after Jose's death, said the process of working with the Silva family from start to finish was a "tremendous experience."

He began by helping the family make final arrangements for Jose and continues to guide them as they decide what to do with the money, including scholarship funds.

"These are such terrific families," Gorny said. "As a lawyer, a case like this only comes along once in your career, but as a human being, that's a good thing - you don't want to see suffering like this on a regular basis."

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