We are proud to share that a recent verdict obtained by our own Christopher DiGirolamo was featured in the list of New Jersey’s Top 20 Personal Injury Awards of the Year. Polifonte v. D’Amario-Aubin resulted in a $4.4 Million settlement, which came in at number 13 on the list of the year’s top verdicts and settlements.
As reported by the New Jersey Law Journal (Sept 28, 2020):
“A motor vehicle accident that left a young boy with a traumatic brain injury has led to settlements now totaling more than $4.4 Million. Following settlements with the driver, the restaurant bar where the defendant dark before the collision was sued under the Dram Shop Act and settled the family Passaic County suit, D’Amario-Aubin, earlier this summer.
Defendant Gina D’Amario-Aubin of Wayne was alleged to have been intoxicated after she had been drinking at a local bar before the accident.
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The case, which never proceeded to trial, settled during conference before Passaic County Assignment Judge Thomas Brogan and with help from retired judge Raymon Reddin of Hall Booth Smith’s Saddle Brook office. The friendly hearing and fee application were heard by Passaic County Superior Court Judge Frank Covello.
The accident occurred on March 23, 2017, at the intersection of Ratzer Road and Alps Road in Wayne. Matthew Polifonte, then 10, was traveling in the back row of his mother’s green 2017 Toyota Sienna as a passenger when a white 2014 Mercedes GK3 driven by D’Amario-Aubin struck the rear of the minivan, based on the police report.
The impact caused catastrophic permanent traumatic brain injuries to Matthew Polifonte, including left arm and left leg partial paralysis. The boy was taken to St. Joseph’s Medical Center and was immediately brought to the operating room to get treated for his head injuries, including a tracheostomy and G-tube, and remained in a coma for at least two weeks, according to the Polifontes’ attorney, Christopher DiGirolamo of Maggiano, DiGirolamo & Lizzi in Fort Lee.
Nicolas Lombardi of Harrington and Lombardi in Wayne represented D’Amario-Aubin through her insurance carrier, MetLife. Lombardi was not available for comment.
Michael DeMarco of DeMarco & DeMarco in North Haledon represented D’Amario-Aubin personally. DeMarco had no comment.
Terence King of Terence M. King Law Offices in Lavallette represented Greenhouse Bar and Grill. King said on behalf of his client during a recent call: “Our best wishes go out to the Polifante family. It was a very unfortunate accident.”
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After emerging from the coma, Polifonte remained in the hospital for nearly three and a half weeks and was eventually transferred to Children’s Specialized Hospital in Hamilton, where he was hospitalized for four months and underwent numerous surgeries and other related life-saving medical care, DiGirolamo said.
Settlement was reached with D’Amario-Aubin in February 2019 for her MetLife primary policy liability limits of $250,000. D’Amario-Aubin also paid the full limit of a MetLife umbrella/excess liability policy, for another $2 million, for a total recovery of $2.25 million at that time. Months later, D’Amario-Aubin paid an additional $1 million in personal funds, bringing the total settlement to $3.25 million.
After settling, D’Amario-Aubin served a year in Passiac County jail after she was found guilty of aggravated assault while operating a motor vehicle in violation of the DUI statute. DiGirolamo also filed a claim under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act of 1987, also known as the Dram Shop Act, against Greenhouse Bar and Grill.
DiGirolamo argued that Greenhouse was negligent for serving D’Amario-Aubin when she was visibly intoxicated, contributing to the cause of the accident.
While there was video footage of D’Amario-Aubin, then 59, entering and staying at the bar, it was inconclusive as to whether she was drunk before leaving the establishment, according to the complaint, but she is visible on the video engaged in conversation with other patrons as she sipped drinks during the two and a half hours she was at the bar. The plaintiffs relied mostly on its toxicology science expert, Richard Strip of American Scientific Consultants Corp. in Huntington, New York, to make its dram shop claim, DiGirolamo said.
But the defense had its own high-profile toxicology expert, too: Dr. Robert Pandina, a former director of the Rutgers University Center for Alcohol Studies in New Brunswick. Pandina opined that based on both his retrograde extrapolation and the surveillance video that D’Amario-Aubin was not served while visibly intoxicated at Greenhouse, DiGirolamo said.
Greenhouse contested liability.
The dram shop litigation continued until June 12 against Greenhouse and settled for $950,000, paid entirely by the bar’s insurance carrier, Allianz. Of the $950,000, $800,000 was apportioned to Matthew Polifonte; $100,000 for his mother, Lori Polifonte, based on a Portee v. Jaffee claim; and $50,000 for the father, Pantaleon Polifonte, for a loss-of-services claim.
DiGirolamo said he also obtained $225,000 for Lori Polifonte from MetLife for her Portee claim, because she was driving the minivan that was struck and actually saw Matthew in the back seat immediately after the crash and feared he was dead. Those sums brought the family’s recovery in litigation to $4.425 million.
Additionally, DiGirolamo secured an additional $100,000 from the family’s no-fault carrier Progressive to renovate the Polifontes’ home to make it accessible for him
DiGirolamo said Matthew, now 13, has made “huge strides” since the accident.
“His doctors feel very confident that he will continue to improve, especially with the love and support of a strong family,” DiGirolamo said. “The settlement amount is not a representation of what Matthew and his family endured, but rather it allows for Matthew to have endless opportunities available to him and be protected and secure for the rest of his life.”
See the full publication here.