Phila. judge allows deposition, document collection, in stayed civil litigation connected to building collapse

By Jon Campisi | Sep 11, 2013

A surviving, but horribly disfigured, victim of June’s deadly building

A surviving, but horribly disfigured, victim of June’s deadly building

collapse in Philadelphia will be allowed to give a deposition as soon as she is physically able, even though a trial judge has put on hold civil litigation arising from the tragedy while a grand jury continues its criminal probe.

Philadelphia Common Pleas Court Judge Mark Bernstein this week granted a request by an attorney representing Mariya Plekan to have his client sit for a deposition despite the judge having previously issued a stay of civil suits stemming from the June building collapse, which killed six people and injured more than a dozen others.

Plekan, who immigrated to the United States from Ukraine, was crushed in the rubble of the collapse, making her the most seriously injured surviving victim to come out of the workplace incident.

The collapse occurred when an unsupported wall from a construction site toppled over an adjacent Salvation Army thrift shop on Market Street in bustling downtown Philadelphia on June 5.

Kline & Specter attorney Andrew Stern said his client endured significant trauma to the lower portion of her body, with doctors having to amputate everything below the woman’s waist, hip joints included.

Plekan was just recently taken off of a ventilator that assisted with her breathing, but she’s in renal failure, is being fed intravenously, and is susceptible to infection.

Stern, who spoke by phone Tuesday afternoon with the Pennsylvania Record, said he had filed Plekan’s lawsuit after Bernstein’s earlier order issuing a stay of all litigation that had been filed on behalf of victims and those who perished in the building collapse.

On the same day he filed the complaint, Stern also filed a motion that would allow him to depose Plekan at the first possible opportunity given the middle-aged woman’s deteriorating state.

Stern had already taken the deposition of trauma surgeon Jose Pascual, during which the physician said imminent death was a very real possibility.

“Basically, he said yes, she’s at significant risk for sudden death,” Stern said.

While much of Plekan’s body is in poor condition, her brain and heart appear to be in good working order, and Stern said he wanted to take advantage of that by getting his client to testify as soon as humanly possible.

Stern said he had previously spoken with counsel for Griffin Campbell, the contractor who was hired to do the demolition job, and there didn’t appear to be any opposition to having Plekan given a deposition at this juncture, despite Bernstein’s stay.

Up until Monday, however, Stern had only worked out arrangements with Campbell’s legal team, not the lawyers representing other defendants in the civil suits, who include Richard Basciano, the owner of the Market Street building that was being demolished, his company, STB Investments, and the Salvation Army.

During a hearing at Common Pleas Court, however, other defense attorneys acquiesced to Stern’s request to have Plekan’s testimony taken as soon as she is feeling up to it, Stern said.

As to when the deposition may take place, it will all depend upon Plekan’s progress in the coming days, Stern said.

“She’s very weak,” he said.

If Plekan does become fit enough to offer her recollection of the events of June 6, Stern expects some interesting testimony that would surely help his case.

“Her brain is normal and she has excellent recall,” Stern said. “Her brain was spared.”

Stern hopes his client may be able to give her deposition sometime next week, but only time will tell.

In addition to Bernstein allowing Plekan’s deposition, the judge also partially lifted his stay to allow plaintiffs’ attorneys to obtain certain documentation relating to the building collapse.

If any of the defendants are, or may be, criminally charged in connection with the building collapse, however, they can assert Fifth Amendment opposition to the request for such evidence.

Stern and other lawyers appear generally pleased with the course of events thus far.

“What happened yesterday was very helpful,” Stern said of Monday’s hearing.

Bernstein also ordered that all pending civil suits relating to the building collapse would be consolidated.

The judge is expected to meet monthly with lawyers involved in the civil cases to get briefed on the status of the parties’ cases.

After the hearing, plaintiffs’ attorney Robert Mongeluzzi told local media that he was pleased with Bernstein’s decision allowing lawyers to get their hands on certain documents that would help their respective cases.

“What we can do is get the documents which in many respects form the backbone of our case, and defer asking questions to witnesses who may be under criminal investigation to a later time,” Mongeluzzi told NBC 10 in Philadelphia.

Another plaintiff’s attorney, Steven Wigrizer, also seemed pleased with the court’s ruling.

“Documents sometimes tend to disappear,” he told the television news station. “We want production of those documents now before we run into what we run into in so many cases – ‘we’re not sure, we don’t know where they are.’”

Bernstein also said he wouldn’t force those to testify if they face criminal charges.

“They do have Fifth Amendment rights and he [Bernstein] struck a very careful balance,” Stern told NBC 10.

Defense lawyers also weighed in.

“I thought [Bernstein’s] ruling was fair and appropriate under the circumstances so long as everybody’s rights are protected,” Salvation Army attorney Eric Weiss told the station.

In previous filings, plaintiffs’ lawyers had contended that documents such as email communications between various parties involved in the building collapse showed that more likely could have been done to avert the tragedy.

It is unclear precisely what documents attorneys will be seeking as the discovery phase moves forward.

Stern said that at this juncture, discovery could move forward only with regard to damages, not liability.

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