Roy v. Freymiller

$2.1 Million Settlement

Date of Verdict: Nov. 9.

Court and Case No.: C.P. Philadelphia No. 170102140.

Judge: Annette Rizzo.

Type of Action: Motor vehicle.

Injuries: Traumatic brain injury.

Plaintiffs Counsel: Fredric Eisenberg and Daniel Sherry, Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, Philadelphia.

Defense Counsel: John Fox of Fox Law, Plymouth Meeting.

Comment:

A man who suffered a traumatic brain injury after he was ejected from a sedan during a multi-vehicle accident has ended his case after agreeing to more than $2.1 million in settlements.

Plaintiff Nagesh Roy has settled his claims against trucking company Freymiller for $2.1 million, and accepted a $15,000 insurance policy tender from another driver who was involved in the collision. The case, Roy v. Freymiller, had been filed in the Philadelphia Court of Common Pleas. It ultimately settled following mediation before retired Judge Annette Rizzo.

According to Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck attorney Fredric Eisenberg, who, along with Daniel Sherry, represented the plaintiffs, liability was not largely contested, but instead the main dispute centered around Roy's cognitive injuries.

Although both sides hired experts, Eisenberg said explanations from Roy's wife about his life, such as how he never remembered to turn off the water after showering or turn off the stove after cooking, were persuasive.

“What we were able to demonstrate at mediation, which was ultimately more persuasive than our expert reports, were the simple examples that Mrs. Roy was able to articulate regarding her husband's continuing subtle neurological problems,” Eisenberg said. “It was the everyday chores, which resonated, not only with Judge Rizzo, but with defense counsel and their adjuster.”

According to court papers, the accident occurred in September 2016 on Interstate 95 in Bensalem. A truck driven by Freymiller employee Jackie Barnett merged into the left lane, which was occupied by the vehicle carrying Roy and his wife, Daksha Roy. The Roys were passengers and Pramod Patel was driving.

The truck struck Patel's vehicle, and forced it into the guardrail. Patel's vehicle spun and was struck by another vehicle, which was being driven by Brian Franklin.

Nagesh Roy, a 65-year-old FedEx manager, was ejected from the vehicle during the crash. He ended up suffering a skull fracture, hematoma, subarachnoid hemorrhage, brain contusion, rib fracture, wrist fracture and shoulder fracture, among other things.

The plaintiffs contended in court papers that Barnett had been speeding, smoking a cigarette, driving with one hand, and had not properly checked the mirrors or used the turn signal before moving into the left lane. The plaintiffs relied on video taken from inside the truck, as well as the opinion of accident reconstruction expert John Karpovich.

In its pretrial memo, Freymiller denied the allegations that Barnett had been negligent, and argued that Patel had been in the driver's blind spot.

Roy's expert neuropsychologist, Terri Morris, opined that Roy continues to suffer from moderate traumatic brain injury, and suffers reduced emotional and cognitive function. Rehabilitation physician expert Laurie Browngoehl opined that the injuries are permanent, and Roy's expert economist, Royal Bunin, opined that the plaintiffs suffered between $287,000 and $468,000 in economic losses.

Freymiller's expert neurologist, David Glosser, conceded that Roy suffered a traumatic brain injury, but he opined that Roy made a “stunningly strong recovery.” He said he did not find that Roy suffered memory loss, or any loss of verbal function. Freymiller also noted that Roy went back to work four months after the accident.

With Freymiller contributing $2.1 million from its $5 million policy, and Franklin tendering his $15,000 policy, the case settled for $2,115,000.

Attorney John Fox of Fox Law in Plymouth Meeting represented Freymiller. He declined to comment without speaking with his client first. Sally Lytle of Wiley Lytle & Cosgrove, who represented Franklin, declined to comment.

—Max Mitchell, of the Law Weekly