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A jury in Providence County Superior Court returned a verdict for $21,500,000 in a medical malpractice/wrongful death case tried by Mark B. Decof. The jury found that Mary O'Sullivan, age 34, died as a result of substandard Emergency Room treatment by Charles L. Stengel, M.D. for his failure to recognize signs and symptoms of a bacterial infection. The jury awarded $9,000,000 to Mary's husband, Noel, and $4,000,000 to each of the O'Sullivan's 3 minor children.
With pre-judgment interest the award totaled $28.63 million.
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A Providence County jury recently returned a verdict of $2.5 million in a medical malpractice case handled by attorneys Patrick Barry and Howard Klein. The case involved the death of a newborn infant that died from an infection. The award is believed to be the largest in a medical malpractice case in Rhode Island in several years.
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A Newport County jury recently returned a $3.2 million verdict in a personal injury trial handled by Mark J. Brice, of counsel to the firm, and Patrick C. Barry, an attorney with the firm. The case involved a Newport businesswoman who was severely injured when she collided with an unmarked gate at a public parking lot in Newport. The gate was not marked with the reflective tape and warnings that were usually used at the parking lot, and recognized as necessary by the industry standards. The woman suffered severe orthopedic injuries, ultimately requiring ten surgeries and a total knee replacement. The case was tried in one week and involved the use of the latest computerized trial presentation systems. Attorney Mark. J. Brice noted that this case was an instance where the civil justice system worked perfectly - the injured party was compensated and the faulty condition at the parking lot was corrected.
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Recently, he presented a lecture on behalf of the Rhode Island Trial Lawyers Association on the subject of wrongful death litigation, and served as an instructor at the National Institute for Trial Advocacy’s New England regional program "Taking and Defending Depositions," which was held in Boston in April.
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By Tony Wright, RI Lawyers Weekly, December 20, 2004, Vol.25, No. 32
For the first time, Lawyers Weekly has selected three Rhode Island attorneys to honor who stood out from the crowd in 2004 - by winning important decisions, being involved in cases that raise challenging legal issues, and otherwise furthering the profession's commitment to the rule of law and to justice in the state.
The lawyers - who are being profiled in three successive issues - represent the broad spectrum of law practice in Rhode Island. In highlighting these attorneys, Rhode Island Lawyers Weekly does not necessarily endorse the result achieved in any particular case but merely acknowledges the significance of the controversy for the law and society.
Ask Mark B. Decof about the past year and he'll tell you it's been quiet - which begs the question: What qualifies as a busy year for Decof? While the son of longtime civil litigator Leonard Decof has a stellar reputation as a medical-malpractice attorney, he's becoming legendary as the attorney who garnered one of the largest settlements in Rhode Island history for his client Tori L. Andreozzi. The 12-year-old was struck by a car while walking home from school in 2003, resulting in severe and permanent brain damage. While the actual settlement terms weren't disclosed, it was revealed during the criminal proceeding against the driver who hit Andreozzi that the defendants had offered $25 million and Decof's clients were asking for $39.3 million.
It was Decof's successful use of the lessor-liability statute - upon which the Rhode Island Legislature has since placed caps - that allowed him to negotiate the massive settlement by allowing him to get at the deep pockets of a vehicle leasing company, BMW Financial Services, and its liability insurer. Decof intends to fight the new legislation, which "sunsets" next year.
Q. The Andreozzi case is reportedly one of the largest settlements in Rhode Island history. How does it feel to have been the plaintiff's attorney on the case?
A. I have mixed feelings about having been the attorney to handle that case. On the one hand, it's one of the saddest cases I've ever been involved in because of what this little girl was and the circumstances of her injury and the consequences of it. On the other hand, I'm grateful that I was the attorney because I was able to achieve a resolution that I think has never been seen - at least not in this jurisdiction.
Q. Was it difficult going up against a large company like BMW Financial Services?
A. Interestingly enough, it wasn't that difficult because of the sophistication of the company and the lawyers who were representing the company. I find it a more positive experience dealing with sophisticated lawyers than dealing with less-than-sophisticated lawyers. Even though the company is huge - BMW Leasing is huge and Chase Manhattan Leasing from the Oliveira case is huge - the lawyers that they utilized on the case made it not a negative experience by any stretch. [Oliveira v. Lombardi is a 2002 case in which Decof garnered a $28 million verdict for his client injured in a car accident by implicating the leasing company, Chase Manhattan Automotive Finance Corp.]
Q. Explain the importance of the Oliveira and Andreozzi cases to plaintiffs' lawyers in Rhode Island.
A. The two cases are the two most prominent in which the vicarious liability of leasing companies was contested. The Oliveira case was the seminal case in that the validity of the statute standing for the vicarious liability of leasing companies was challenged. We went to the Supreme Court of Rhode Island in Oliveira and we were successful in upholding the statutory intent, which was to hold leasing companies vicariously liable. And that case went to trial and produced a record-setting verdict. Fortunately, the Legislature had not yet changed the vicarious liability statute, which allowed the Andreozzi case to achieve the kind of result that Tory needed.
Q. In July 2003 the General Assembly placed caps on a lessor's liability. What is your opinion of that law?
A. I have very passionate opinions about that. My strong view, having intimate experience with both of these cases, and certainly the case which led to the outcry by the leasing companies over the statute, is that this is a power move by liability insurance carriers, and nothing more. In fact, I testified before the Legislature in opposition to the caps. It's not a done deal. It's still up there and I intend to do everything I can to at least make the legislators do their homework before they put some finality to this. Interestingly, in both the cases, the leasing companies themselves paid little or nothing to resolve those cases. The money came from liability insurance carriers. And before these cases, particularly before the Oliveira case, I have never been made aware of a significant jury verdict or settlement made by an insurance company for a leasing company. It means that for all these years the leasing companies have been paying premiums to the liability insurance companies, which, in my view, were the cash cows for the liability carrier. Then, all of the sudden, one case goes to verdict with a substantial verdict and they're forced to pay. And as a result of that one instance, they are now crying that the law is unfair and it needs to be changed. There was, and still is, tremendous lobbying and influence being exerted on the Legislature by the liability insurance industry - not necessarily by the leasing companies, but the liability insurance industry - to change those laws. It's just another example of tort reform.
Q. Has the lessor-liability statue been used in the past, or has it been largely overlooked?
A. That's hard to say. I've had cases settle involving leasing companies, but not to the extent of Oliveira and Andreozzi. But I don't know what the experiences have been of other lawyers here in Rhode Island. I have not read of any substantial verdicts or settlements involving leasing companies. My guess is that Oliveira was the first substantial one because it immediately led to this move on the part of the liability industry to change the laws.
Q. Where in the procedural process does the lessor-liability cap legislation stand?
A. There is presently a cap, but there is a sunset provision in the legislation, which means that during the next session, hopefully, it's going to be addressed again. I plan to put before the legislators the kind of information I think they need to make the decision grounded in fact and not based on the influence of big money. And the kind of information that I'm hoping they'll look at is whether or not there's truth to the contention of the leasing industry that vicarious liability is going to ruin them. It can't be because, based on my experience, they haven't paid any money. It's been the liability insurance carriers. And I would hope that the legislators would ask to see some hard and fast documents and numbers to try to determine whether what the liability industry is saying is true - that they're losing money - which in my view cannot be the case.
Q. Exactly how does the argument go that a vehicle lessor is vicariously liable for the actions of its lessees?
A. There are two separate statutes in Rhode Island. One is the owner statute, and as the legal owner of the vehicle, the leasing company is liable as an owner - just as you as an individual owner of a vehicle would be if you gave your car to another person with consent and that person negligently injures somebody. Same is true with leasing companies as long as they are the legal owners. The second statute is the lessor-liability statute, which is a separate and distinct statute and clearly unique to Rhode Island, although not the only state to have it. It states very clearly that a lessor of motor vehicles shall be financially responsible for the tortious conduct of an authorized driver. The principle underlying that - as explained very nicely in the [R.I.] Supreme Court decision - is that the Legislature, in enacting that statute, felt as a matter of public policy that leasing companies and insurance companies make a significant amount of money placing these vehicles in the hands of lessees, and the question becomes, when serious injuries and damages result, who's in the better position to bear the brunt of the cost of those injuries?
Q. With President Bush in office for a second term pushing hard for tort reform, do personal-injury lawyers feel threatened?
A. Yes. It's a constant threat. There's nothing new here, it's just that we have a president who's pushing it harder than it's ever been pushed. And I think it's clear that, historically, he's got connections with big business and the insurance industry, and it's part of his agenda to appease those groups and to make tort reform a reality. That's a pretty frightening prospect - not for lawyers, but for consumers. So it's a battle that plaintiffs' lawyers face year in and year out. But the battle with the Bush administration is a fierce one.
Q. Explain your involvement in the Station nightclub tragedy.
A. I was out of state when the Station fire occurred and my office began receiving calls the next day. So I became involved in the situation at its earliest point, having been retained by several clients within the first two weeks following the fire. It was important to me not to file a lawsuit prematurely, but on the other hand to make sure that potential evidence was preserved. So I filed a miscellaneous petition with the Superior Court before filing a lawsuit against anybody for an order of preservation of evidence. That really started the legal proceedings going. Over the next several months I became associated with other lawyers here in the state as somewhat of a leadership group for the victims of the Station fire. My firm represented maybe 30 or 40 victims, until it became apparent that a potential defendant was the state of Rhode Island on the basis of the fire marshal and inspectors and so on. When it became apparent that the state could very well become a defendant, a problem arose within my firm because my firm has been representing the state for some years in the lead paint litigation. It's not an actual conflict but a potential conflict, and my partner and I - my dad - had to make a very difficult decision, which was that we had to remain with the lead paint litigation. My dad was and remains an instrumental part of the representation for the state in the lead paint litigation, which is coming to trial this April. We can't represent the state and sue them at the same time, except in very special circumstances and with consent. But we felt that our responsibility was to not withdraw from that to take on another case.
Q. How do you feel now about withdrawing from the case?
A. I have very mixed feelings about it. On the one hand, I had bonded with many of my clients and it was very difficult for me to sit them down and explain to them that I could no longer represent them - that they could no longer have the lawyer they had chosen to represent them. I assisted them in retaining new counsel, but it was a very difficult and very emotional decision for me to make, and one that I feel very badly about to this day. On the other hand, the Station fire litigation would have been an extremely time-consuming effort, and appears to be a slow process that is going to go on for years and years. In my view the opportunity cost of staying with that would be significant. So much time would have to be devoted to that if I were still involved, which would have curtailed my other case involvements. So on that side of it, there's some feeling of relief on my part not to be involved.
Q. What's been the most challenging case of your career?
A. The one that I'm presently trying. It sounds like a corny statement, but the most important case is either the current one or the next one. The way I approach cases is with everything in my being. Every trial - and I've probably tried 40 or 50 cases now to verdict - I leave my heart and soul on the courtroom floor no matter what the case is, whether the damages are $1 million or $28 million. I approach it the same way. Every single case that I try represents to me the ultimate challenge.
Q. What's the most difficult part of your job?
A. Bearing the weight of the world of the client's outcome because of its uncertainty. It's easy when there's no money being offered because you're playing with the house's money, so to speak, and there's no decision to make. You put everything into the case that you can muster and the jury decides what the jury decides. On the other hand, as you're going along there are times when defendants and insurance companies make settlement offers - and they can be substantial - and the client looks at you and says, "What should we do?" And you have to utilize all of your experience and your judgment and your instincts and make the kind of difficult decision that will be with that client for the rest of that client's life.
Q. To what do you credit your success?
A. I say this all the time and I'll never stop saying it: I was exposed to one of the great trial lawyers in the country from a very early age, at birth. I was brought into this profession by my dad and was influenced by him to a great extent. I've developed, obviously, my own style, my own way of doing things, but I can't get away from the fact that his philosophy and his approach was a great influence on me.
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