Jury finds massive damages for infant harmed in utero

A Clay County jury awarded $65 million in damages to a young boy who was injured before his birth when a UPS truck stuck his mother’s car.

Lou Accurso of the Accurso Law Firm in Kansas City, an attorney for the plaintiffs, said the verdict exceeds the amount sought in mediation prior to trial, which will entitle them to about $10.3 million in prejudgment interest on the award.

On May 8, 2018, UPS driver Steven Miller was speeding, driving in the middle of the road and failed to stop at a stop sign in a residential neighborhood in Gladstone. He collided with Jodi Pannell, who was 13 weeks pregnant. Both Pannell’s vehicle and the UPS package truck were totaled.

Pannell sought emergency medical treatment and began a course of physical therapy to address her known injuries. Her son, Kaelix, was born the following October with hypotonia, or low muscle tone throughout the body. He was discovered to have schizencephaly, a permanent brain injury.

“You can’t know until the baby is born,” Accurso said. “It’s very, very difficult if not impossible to detect it during the pregnancy. Sonograms don’t have that level of detection.”

Accurso said Pannell’s only known risk factor for the type of brain injury sustained by the infant was the trauma to Kaelix’s mother from the collision, as testing ruled out genetic factors. However, he said, UPS disputed causation.

“They tried to argue it was a genetic cause or an unknown cause, when we had very strong evidence that it was just the opposite,” he said.

The plaintiffs alleged Miller had been a crack cocaine addict for 10 years before the collision and that he’d failed at two previous attempts at rehab. UPS had terminated him in February 2018 following a three-day “no show, no call” but reinstated him after he entered a voluntary drug rehabilitation program.

Accurso alleged that, despite having access to Miller’s full substance abuse records and knowing of his recent admission crack cocaine use, UPS did not test Miller for drugs following the collision and failed to download the truck’s crash incident data.

Matthew F. Barr of Hawkins Parnell & Young in Atlanta, an attorney for the defense, declined to comment on the case. A UPS spokesman, Matthew O’Connor, said in an emailed statement that the company is “evaluating our options for an appeal.”

“We have apologized to the family and taken full responsibility for this unfortunate incident,” he wrote. “We want the family to be able to provide the ongoing therapy and support for their son, but medical professionals have said that the cause of the child’s Schizencephaly is unknown.”

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$65 million verdict

Motor vehicle collision

Breakdown: $65,000,000 in damages, $10,300,000 in prejudgment interest. Net judgment of $75,300,000

Venue: Clay County Circuit Court

Case Number/Date: 20CY-CV06976/March 6, 2023

Judge: David Chamberlain

Last Pretrial Demand: $39,500,000

Last Pretrial Offer: $20,000,000

Plaintiffs’ Experts: Aubrey Corwin, Vocational Diagnostics Inc., Phoenix, Arizona (vocational rehabilitation); Dr. Daniel Cousin, Tampa, Florida (radiologist); Al Des Marteau, Madison Avenue Psychological Services, Kansas City (substance abuse counselor); Ronald Fijalkowski, ARCCA, Penns Park, Pennsylvania (biomechanical engineer); Joseph Hershewe, Hershewe & Company, Riverside (damages); Dr. Roger Huckfeldt, Palm Medical Solutions, Springfield (life care planner); Dr. Saz M. Madison, Psychology Associates, Kansas City (forensic psychologist); Dr. James Mirabile, Mirabile M.D. Beauty, Health & Wellness, Overland Park, Kansas (OB/GYN)

Defendant’s Experts: Tanya Owen, Fayetteville, Arkansas (rehabilitation counselor and life care planner); Ralph Scott, Conway, Arkansas (economics); Jeff Milunsky, Cambridge, Massachusetts (molecular and clinical geneticist); Caleb Pearson, Fairway, Kansas (neuropsychologist)

Special Damages: Past medical expenses: $458,484 (charged), $295,707 (paid); future lost wages: $1,738,637; future medical expenses: $47,718,124

Caption: Kaelix Pannell v. United Parcel Service Inc.

Plaintiffs’ Attorneys: Louis C. Accurso, Burt Haigh and Matt Larsen, The Accurso Law Firm, Kansas City

Defendants’ Attorneys: Jonathan Benevides, Baker Sterchi Cowden & Rice, Kansas City; Matthew F. Barr, Hawkins Parnell & Young, Atlanta, Georgia; Susan Ford Robertson, The Robertson Law Group, Kansas City