Attorney says settlement route never in question in Dram Shop case ending with $6.6 million for paralyzed plaintiff

Sometimes lawyers are flowery courtroom orators.

Other times they’re more like risk assessors.

In late September, it was the latter.

When John Hendrzak sat down at the mediation table with an attorney representing a bar patron who was suing two liquor establishments for over-serving him prior to a single-vehicle crash, he had a feeling how the case might turn out.

The plaintiff, Joseph Mercado, was left a quadriplegic from the accident.

He can only get around by blowing into a tube that propels his motorized wheelchair.

Considering that Mercado’s legal team was asserting more than $37 million in lifetime medical expenses from the get-go, Hendrzak, in-house counsel representing an insurance company for defendant Pub 570, had a feeling the case would never see the inside of a courtroom.

And he was right.

This week, it was announced that the parties had reached a $6.6 million settlement in the case, which pitted Mercado against Pub 570, one of its bartender’s, and another business called Sticks N Stones Bar and Grill.

From a legal standpoint, quadriplegic cases generally don’t go to trial in the Keystone State, Hendrzak said in a phone interview Thursday.

The reason – “it’s too big a risk on both sides,” Hendrzak said.

Pennsylvania’s comparative negligence statute is written in such a way that if a plaintiff is found more than half liable for his or her own injuries, they are awarded zero dollars.

While Mercado took it upon himself to drive drunk, he still asserted that bartenders should have known he was legally intoxicated and thus should not have continued serving him drinks before he got behind the wheel of his vehicle.

Mercado, 36, a resident of the Bronx, N.Y., filed suit against Pub 570 and Sticks N Stones over the May 2, 2010 accident, that left the plaintiff completely paralyzed from the neck down.

In his complaint, Mercado said the Pub 570 bartender, Marie DeBias, drove Mercado in Mercado’s vehicle to Sticks N Stones, and then left him there.

Mercado ended up imbibing more while at the second bar – both establishments are located in East Stroudsburg, Pa. – and when he left, he wound up driving his car off the road and flipping the vehicle several times.

In depositions, Hendrzak said there were discrepancies with regard to how much Mercado had to drink that night, and whether or not he was capable of driving home.

“This was a very contested liability case with over 40 depositions,” the attorney said.

If Mercado ended up dying in the accident, or if the man’s injuries were less severe, the suit would have likely gone to trial on contested liability, Hendrzak said.

If this was a death case, “our damages would have been capped, we would have tried this in a heartbeat,” he said.

But because the plaintiff was left a quadriplegic due to the crash, and is facing a lifetime of medical costs, it was fairly obvious to both sides that a settlement was the way to go.

“When you’re talking high stakes poker, it’s risk analysis,” Hendrzak said.

All of the settlement dollars came from insurance, Hendrzak said, and DeBias, the Pub 570 bartender, was on the hook for nothing, since she was covered by her employer’s policy.

Mercado’s Philadelphia-based attorney, Robert W. Sink, surely realized that if a jury determined his client was liable for just 51 percent of his own injuries, the man wouldn’t see a dime, Hendrzak said, making a settlement more attractive.

Sink, who could not be reached for comment, told the Morning Call newspaper in Allentown this week that a large portion of the settlement funds would go toward repaying Medicare for medical costs that Mercado incurred after his insurance lapsed following the vehicle accident.

Hendrzak gave a shout-out to the mediator in the case, attorney Tom Helbig, who he said did a “phenomenal job” representing all sides.

Hendrzak also commended the other lawyers for their professionalism in what was a very difficult, and trying, case.

“It was highly contested,” Hendrzak said. “It was very professionally handled on all sides.”

Mediation itself, which occurred in late September took a full, eight-hour day, Hendrzak said.

In the end, all sides appeared to be pleased with the outcome, he said.

“We’re satisfied [with] the settlement,” Hendrzak said.

Hendrzak said Pub 570’s excess insurer, Zurich, was on the hook for most of the settlement money, about $5.65 million, while Sticks N Stones agreed to pay $950,000.

A breakdown of comparative negligence statues on the website of the law firm Saxe Doernberger & Vita P.C., shows that Pennsylvania employs what is known as the “50 Percent” rule, which says a plaintiff can recover if he or she is 50 percent liable for his or her injuries, but not if that percentage is 51 percent or more.

Other states have what is called “Pure” negligence, which is when a plaintiff can recover the percentage of damages caused by the defendant no matter how much the plaintiff was at fault.

Washington, D.C., Maryland, North Carolina and Virginia have no law regarding comparative negligence, according to the law firm.