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MATA Member 2017 - Massachusetts Academy of Trial Attorneys
AV Kenneth I. Kolpan 2016
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Negligence/Pedestrian - Minor Brain Injury/PTSD

Tried before judge or jury (or mediation): Robert Larkin, Esq. (mediator)

Special Damages: $15,436.69 (medical expenses)

Amount (specify award or settlement): 1,925,000.00 (plus a reduction of liens in the amount of $27,425.74)

Highest Offer: $1,925,000.00

Attorney for plaintiff(s) and city of office:

Kenneth I. Kolpan
Law Office of Kenneth I. Kolpan, P.C.
100 Summer Street
Boston, Ma. 02110

Other useful information:

On the morning of October 26, 2000, plaintiff, a thirty-five year old husband and father of two was walking down the street to his job as a Bank Director at a prominent national lending institution when he was struck on the head by a metal rail. The incident occurred on Milk Street in Boston near a construction repair project at 40 Broad Street. The metal rail, weighing thirteen pounds and six feet long, came off a scaffolding platform from a height of approximately 115 feet. The rail glanced off the plaintiff's head and landed nearby in the street. Plaintiff was stunned and fell to his knees. He sustained a laceration to his forehead but did not lose consciousness. He spoke, responded slowly to questions with somewhat slurred but comprehensible speech. He repeatedly asked, "What happened?"

Witnesses at the scene applied compresses to stem the bleeding while awaiting arrival of the EMT's. Plaintiff did speak with his wife on his cell phone before ambulance personnel him to the Emergency Room of Massachusetts General Hospital where he was treated and released. Subsequent x-rays and MRIs were negative.

During the ensuing two and one half years, plaintiff was treated as an outpatient by neurologists, acupuncturist, social worker, psychologist, neurologist(s) and internist(s). Plaintiff has never hospitalized overnight for treatment(s). He remains under the care of his internist, social worker and a physician who specializes in treatment of headaches.

At the time of the incident, the plaintiff was a Bank Director responsible for handling tens of millions of dollars of financing and was earning in excess of $200,000.00 per year. After a brief respite, the plaintiff returned to work as a Bank Director. Eight months later, with the advice of his physician, plaintiff left his position at the financial institution and was placed on disability. Plaintiff was on disability when this case was mediated.

Suit was brought against the general contractor of the repair project and one of the subcontractors whose employee was operating the subject scaffolding at the time of the incident. Plaintiffs alleged that the subcontractor's employee drove the scaffolding to the top of the building where the safety rail hit the cornice and was dislodged. Defendant subcontractor claimed that the railing did not strike the cornice and it was dislodged because of the general contractor's negligent installation and maintenance of the scaffolding and railing(s).

Plaintiffs allege that the Defendant general contractor negligently attached the safety rail to the scaffolding using tie wires in violation of industry standards and manufacturer's recommendations. Plaintiffs also claimed that the Defendant general contractor failed to place a limiting switch on the mast that likely would have prevented the scaffolding from hitting the cornice.

Plaintiffs retained an engineer expert who determined that the metal rail was traveling at 58 to 59 miles per hour when it glanced off the plaintiff's head. Plaintiffs medical experts including neurologists, psychiatrists, social worker and neuropsychologists were prepared to testify that the plaintiff sustained a mild traumatic brain injury and post traumatic stress disorder as a direct result of being hit by the railing.

Defendants disputed both the severity of plaintiff's claimed brain injury and that his PTSD was similar to a preexisting condition. In particular, defendants were prepared to introduce hospital records of plaintiff's preaccident panic attack for which he was rushed to a local Emergency Room, where the plaintiff thought he was having a heart attack. Plaintiff claimed he had been taking Ripped Fuel which caused the panic attack.

Defendants claimed that the Defendant was capable of returning to his preaccident occupation as a Bank Director and had, in fact, done so. Defendants pointed out that the plaintiff received excellent job performance reviews from his immediate supervisors during the eight months when he returned to work after the incident.

Defendants had also had the plaintiff under surveillance. At the time of the mediation, plaintiffs' motion to compel production of surveillance evidence was pending before the Court.

Two months before trial, the parties agreed to two full days of mediation before Robert Larkin, Esq. At the mediation, plaintiff's counsel made a multi media presentation and presented the metal railing. Case was settled in the amount of $1,925,000.00.