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AV Kenneth I. Kolpan 2016
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Wrongful Death of Disabled Man - $225,000 Settlement

Type of action: Wrongful Death-Disabled Adult
Injuries alleged: Brain damage and death from a stroke caused by C-5, 6 fractures
Tried before judge or jury (or mediation): Raymond Kenney (mediator)
Amount (specify award or settlement): $225,000.00
Attorney for plaintiff(s) and city of office: Kenneth I. Kolpan

Other useful information:

Decedent was a 48-year-old non-verbal, non-ambulatory, mentally retarded male with cerebral palsy who had spent all (but three years) of his adult life in an institution. Three years prior to his death, he was moved to a community home. Each day he was taken in a van owned and operated by the defendant's transportation company to a day activity program, where he participated in daily activities despite his disabilities.

On November 1, 2001, while being driven to the center, the van hit a pot hole. As a direct result, the decedent's wheelchair fell over to the right and the decedent struck his head on the floor of the van. Plaintiff alleged that the defendant operator failed to provide a three-point seat belt for the decedent while he was transported in the wheelchair which was tethered to the floor of the van.  The van was specially equipped to transport disabled individuals such as the decedent.

Emergency personnel examined the decedent at the scene and cleared him to go on to his day program.

During the next several days, the decedent appeared lethargic. Ten days following the incident the decedent was diagnosed as having sustained fractures at C5 and C6. Decedent was transferred to a Boston area hospital where remained until his passing on December 2, 2001. During his hospitalization, the decedent suffered additional medical problems including pneumonia and a stroke. Decedent was survived by his brother and mother.

Suit was brought against the operator of the subject van and the transportation company which drove the decedent under a contract with the Commonwealth of Massachusetts.  Claim was not brought against the Commonwealth because there is a $100,000 cap for governmental entities.

Defendants contested both causation and damages claiming that the decedent died from pneumonia and/or a stroke, each unrelated to the incident. Plaintiff’s counsel argued that but for the incident, the decedent would not have been hospitalized, contracted pneumonia or had a stroke.  Plaintiff’s counsel pointed to evidence suggesting that the fractures led to the stroke.

Defendants also argued that damages, under the Wrongful Death Statute, were minimal because the decedent had never worked nor married, and there was no evidence of conscious pain and suffering because the decedent was incapable of verbalizing.  Wrongful death damages are limited to those listed in the Massachusetts Wrongful Death Statute including past medical expenses, net loss of income of the Estate, conscious pain and suffering and loss of consortium.  Given the decedent’s lack of work history, his inability to communicate his pain, the claim and settlement was for the survivor’s loss of consortium.

Case was settled in the amount of $225,000.00 after a full day's mediation before Raymond Kenney, Esq. The decedent's family has established a scholarship in the name of their loved one to honor his memory.