Ranked 8th for Personal Injury Case of the Year in 1999
This was a dram shop action in which the female plaintiff, an exotic dancer at a different establishment, who was 26 at the time, contented that the defendant tavern served her alcoholic beverages when she was visibly intoxicated. The plaintiff contended that she reached a BAC of .20 in the defendant's tavern and that shortly after she left, she drove over the median divider and crashed into an on-coming driver who did not suffer significant injury and who was not a party to this action. The plaintiff contended that she suffered a closed head trauma, a ruptured aorta and traumatic brain injury which although left her cognitively intact, will permanently prevent her from walking or talking. The plaintiff also contended that she sustained a severe injury to the temporal mandibular joint which resulted in the permanent loss of all of her teeth. The plaintiff maintained that she will permanently require institutionalization.
The plaintiff contended that she visited the defendant tavern at approximately 6:30 P.M. after having worked the afternoon shift at her employing tavern. The plaintiff contended that the employing tavern had a rule in which dancers could consume no more than two drinks during their shift and that when she left, she was sober. The plaintiff would have presented a patron of the first tavern who testified that he left the first tavern with the plaintiff and was driven to the second tavern by her. The witness testified that he and the plaintiff had two beers apiece at the defendant tavern and that she then drove him back to his car at the first tavern at approximately 7:15. The plaintiff maintained that she then returned to the second tavern where she was served repeatedly while visibly intoxicated.
The plaintiff would have also presented a dancer who knew the plaintiff, who happened to be at the second tavern, which does not have exotic dancers, who would have indicated that when she saw the plaintiff at approximately 8:00 PM, she appeared inebriated and became progressively more intoxicated before the witness left the tavern at approximately 9:00 PM. The witness also would have testified that she observed numerous glasses on the bar in front of the plaintiff and the plaintiff would have argued that it was evident that the defendant served her when she showed clear signs of inebriation.
The defendant denied that the plaintiff was at the tavern and denied that the other dancer's testimony should be accepted. The plaintiff countered that it was clear from her deposition that a great deal of animosity existed between the plaintiff and this witness and that in view of their dislike for each other, the witness' candor underscored the validity of the plaintiff's contentions.
The accident occurred at 9:25 PM. The plaintiff's toxicologist would have related that the plaintiff tested with a blood serum level of .33 which translated to a BAC of .27 shortly after the accident. The expert would have concluded that the level was on the rise and would have extrapolated that the plaintiff probably had a BAC of .20 when she left the tavern and would have cleady shown signs of visible intoxication while being served before that time.
The plaintiff maintained that she suffered a severe closed head trauma and a ruptured aorta. The plaintiff contended that the initial surgical repair of the aorta was not sufficient and that she required subsequent surgery. The plaintiff contended that the aorta injury caused hypoxia and that this factor and/or the closed head trauma resulted in the severe brain damage injury which will permanently deprive her of the ability to talk and to walk. The plaintiff contended, however, that the plaintiff can use a computer, is the editor of the nursing home's newsletter and that it is clear that she suffered little if any cognitive deficits. The plaintiff would have argued that the jury should consider that she is a prisoner in her own body. The plaintiff, who contended that she will permanently require institutionalization, would have introduced evidence of approximately $6 million in costs of care.
The case settled prior to trial for $1,700,000
Plaintiff's neurologist: Monte B. Pellmar from Freehold.
Plaintiff's toxicologists: Robert J. Pandina, Ph.D. from Neshanic, N.J. and Richard Saferstein, Ph.D. from Mt. Laurel.
Plt: Mauger. Judge Robert O'Hagen, 3-27-00.
Attorneys for plaintiff: Douglas B. Hanna and Robert M. Anderson of Hanna & Anderson in Wall Twp.
The plaintiff was able to obtain a large recovery in this dram shop case in which the plaintiff herself was the inebriant who was driving while intoxicated. It is felt that the particularly horrific nature of the injuries in which the plaintiff suffered brain damage preventing her from talking or walking, but is otherwise cognitively intact and is essentially a prisoner in her own body, created the distinct risk to the defendant of a jury reaction to such injuries which could well be strong enough to overcome the plaintiff's status as the inebriant. Additionally, the defendant had denied serving the plaintiff that night and the plaintiff, who would have pointed to the testimony of an acquaintance that she appeared to be very inebriated in the tavern with numerous empty glasses in front of her at the bar, would have argued that based upon the deposition testimony of this witness, it was clear that there was a great deal of animosity felt by the witness towards the plaintiff and that she would clearly not have testified falsely for her. Additionally, the defendant would have attempted to introduce a statement taken by an investigator who was sent by plaintiff's former counsel, which reflected that she had, in fact, consumed eight strong drinks known as "Mind erasers" at the first tavern at which she danced as an independent contractor. The defendant would have argued that in view of this concession, it was clear that the plaintiff's version of events should be rejected. The plaintiff had argued in limine that the statement was taken in the course of the attorney-client privilege and should not be admissible. The action was filed shortly before the Statute of Limitations ran and at that time, the plaintiff, who was not aware of the involvement of the defendant tavern, had named the initial tavern for whom she had danced as an independent contractor. The plaintiff had also named a "John Doe" tavern at this time. The plaintiff subsequently learned of the defendant's alleged involvement and moved to amend the complaint to name the defendant second tavern. The plaintiff's motion was granted and the amended complaint was held to relate back to the original filing. The defendant second tavern then subpoenaed plaintiff's prior counsel's file and the plaintiff moved to quash the subpoena, arguing that it was not discoverable because of the attorney-client privilege. The defendant argued that in view of the fact that it had not been named as a defendant until three years had elapsed following the accident, it was highly prejudiced in attempting to defend the action and that such hardship would constitute an exception to the attorney-client privilege. The Court, following an in camera inspection of the file, which contained this report from prior counsel's investigator, held that the file was discoverable, reserving on the question of admissibility at trial. The file, including the statement in which the plaintiff purportedly indicated that she had consumed eight "mind erasers" at the first tavern, was turned over to the defense. It should be noted that before this statement was purportedly taken by the investigator, the first tavern, initially named as a defendant, had moved for Summary Judgment, arguing that there was no evidence of service while the plaintiff was visibly intoxicated. This motion was granted and the first tavern was not subsequently brought back into the case. The plaintiff in overcoming the potential difficulties created by this statement, established that the investigator's report reflected that the plaintiff had verbally given him this history and would have argued that in view of the undisputed evidence that the plaintiff was unable to speak, it was clear that the report was in error.