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BOSTON, MA -- AT-A-GLANCE
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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