August 31, 2009

PLAINTIFF INJURED IN TRIPOD ACCIDENT GETS $1.35M

Plaintiff’s attorney Joel Faxon said one complication was that the company that made the allegedly faulty tripod was Chinese and it couldn’t be located.

Defense argued that woman was faking memory loss and headaches.

Angela Wilson vs. Visual Effects Inc., et al: While Angela Wilson was at Knickerbocker’s restaurant in Milford in December 2003, a disc jockey was setting up a lighting display for a show. An 80-pound lighting fixture on an adjustable tripod came out of its socket and landed on Wilson’s head. She was briefly knocked unconscious, and was treated by emergency medical technicians at the scene.

Shortly after the incident, she said she began to experience memory loss, headaches, gait disturbance and unexplained tremors in her leg. In time, Wilson was diagnosed with symptoms of traumatic brain injury, and filed a civil action with the aid of New Haven’s four-lawyer Stratton Faxon. There were serious challenges in the process of establishing liability and proving damages, plaintiff’s attorney Joel Faxon said in an interview.

“They never found the Chinese company [that made the tripod]. We knew who it was, and brought a third-party action, but they never appeared,” said Faxon. The defendant was a Bronx importer called Visual Effects Inc., which sold the device.

The tripod was adjustable, but had no internal stop mechanism to keep sections from separating. Stratton Faxon retained engineer John R. Manning, of San Francisco, to analyze the tripod, which he deemed defective in its design.

Unlike ordinary negligence cases, products liability cases allow introduction of evidence that the defect was subsequently repaired or improved in a later design. Faxon said that provision of the Connecticut products liability statute was valuable in proving his case. In subsequent versions of the tripod, a safety stop was built in.

The case was mediated by Superior Court Judge Theodore Tyma, in Derby, and the parties agreed to a settlement of $1.35 million, Faxon said.

The most controversial part of the case was proving that Wilson was actually injured, Faxon said. Because the objective tests of brain damage yielded no proof, the defense contended that she was simply malingering, and that the debilitating medical symptoms she claimed were simply faked.

Faxon retained psychologist Robert A. Novelly, of Branford, who testified that Wilson had suffered impairment of “executive functions” making it impossible for her to work or to function fully as a homemaker and mother. Novelly was recently disciplined by state licensing officials, but Faxon said his firm was happy to rely on Novelly’s testimony, and would do so again.

“We are aware that he has had disciplinary action in the past related to his delay in providing written reports to lawyers concerning his patients,” Faxon acknowledged. The disciplinary probation, which ended Jan. 1 of this year, “has no impact on his qualifications as an expert, his quality as a persuasive witness or his ability to be a resource for his patients.”

Faxon said his client was pleased with Novelly’s therapy and he said it improved her condition. Name partner Michael Stratton met Novelly when he was testifying on behalf of an insurance company and considered him a very compelling and effective witness, Faxon said in an e-mail.

Faxon said Wilson must make frequent use of a wheelchair. “She continues to have difficulties with organization and speech [and] was declared disabled by the social security judge,” based on the evident symptoms of brain damage.

She lost her ability to work as a Health-Net analyst. She had obtained a real estate license shortly before the injury, but was not able to work in that field, either, and never went back to work.

“The defense claims of malingering came from her treating physicians over a two-year period,” said Faxon. “They said they didn’t see anything on the imaging studies… Between 2003 and the present, [the treating physicians] said she had a lawsuit pending and this can affect the patient’s psychology,” he added. The idea that plaintiffs’ brain injury symptoms increase if it is the subject of a personal injury lawsuit has been explored in some studies and articles that Faxon claims are “somewhat discredited.”

An alternate defense theory was that before the accident Wilson had been suffering an unknown and undiagnosed mental disorder that did not become evident until she was struck with the device.

The attorney for the defense, James Wildes, of the Law Office of Cynthia Garraty in North Haven, did not return a call for comment. Garraty, whose firm is a Travelers Insurance staff counsel office, cheerfully declined comment on the case. “Our hands are tied,” she explained.