Trial Magazine

Gina Franzino, 22, and her sister, Jamie, 19, were passengers aboard a 15-foot Key West fishing skiff in the Manasquan Inlet, which connects New Jersey’s Manasquan River with the Atlantic Ocean. The sisters were boating with three other people when a 31-foot, 14,000-pound Boston Whaler, piloted by Ed McCarthy for McCarthy’s Marina, entered the tidal waters of the inlet after returning from mechanical trials in the Atlantic. The two boats collided.

The impact sent the skiff into full-power circles, with the sisters trapped on board. The three other passengers, including the skiff’s pilot, were thrown from the boat, and one passenger drowned after impact with the Whaler’s hull fractured his skull. Eventually, a worker from a boat-towing company was able to stop the skiff. Rescuers found both sisters unconscious, and they were airlifted to the hospital with multiple, severe injuries. 

Gina remained comatose for three days. She suffered a concussion; multiple pelvic fractures requiring open reduction internal fixation with pins, plates, and screws; and multiple ruptures in her spleen, requiring its removal. She has numerous large scars from the pelvic surgery and splenectomy. She also suffered post-traumatic stress disorder (PTSD), resulting in anxiety, nightmares, and flashbacks. In addition, she will likely require a hip replacement and future revisions. Her past medical expenses, which were paid by insurance, exceeded $100,000.

Jamie was comatose for more than a day and suffered a concussion; bilateral lung contusions; a collapsed lung; a complex fracture to the right pelvis; rib fractures; shattered teeth; and permanent nerve damage to her left foot, resulting in foot drop. While hospitalized, she required a chest tube to treat the collapsed lung. She also suffered a permanent loss of taste and smell and, like her sister, PTSD.  She has been hospitalized several times for ongoing breathing problems resulting from damage to her right lung. Her medical expenses, nearly $100,000, were covered by insurance.

The sisters sued McCarthy and his family’s company under general negligence law, alleging that McCarthy—a veteran boater—failed to adhere to the boating “rules of the road” that required him to keep a proper lookout at all times and avoid the smaller boat. The plaintiffs asserted that under the boating rules, the skiff—based on its speed and position ahead of the Whaler in the inlet—had the right of way and that McCarthy failed to yield to the skiff. The plaintiffs claimed that McCarthy should have passed behind the skiff and taken all other measures to avoid the smaller boat. McCarthy reportedly admitted that he did not see the skiff until it was about 15 feet away from the Whaler, mere seconds before impact.

In the first trial phase, the jury found the defendants liable. Because the incident occurred in tidal waters, maritime joint and several liability applied, leaving McCarthy and his company 100 percent liable. Thus, the jury was not asked to apportion fault.

In a second phase on damages, the sisters testified about how their severe injuries have permanently affected their lives. Both sought compensation for past and future pain and suffering and loss of enjoyment of life. In addition, Gina sought $400,000 in future medical expenses. 

The jury awarded a total of $9.5 million. Gina was awarded $5.6 million, including $5.1 million for past and future pain and suffering and loss of enjoyment of life and $500,000 for future medical expenses. Jamie was awarded $3.9 million for past and future pain and suffering and loss of enjoyment of life. The trial court has denied the defendants’ motions for a new trial and remittitur. Plaintiff counsel anticipate an appeal.

Citation: Franzino v. McCarthy Marine Sales, No. BER-L 9503-14 (N.J. Super. Ct. July 26, 2016).

Plaintiff counsel: AAJ member Christopher T. Karounos, Elmwood Park, N.J. (counsel for Jamie and Gina Franzino); and AAJ member Samuel L. Davis, Teaneck, N.J. (counsel for Gina Franzino).

Plaintiff experts: Richard DiNapoli, boating operations/maritime joint and several liability, Florham Park, N.J.; Kevin E. Bell, internal medicine, Warren, N.J.; and Themistocles S. Protopsaltis, orthopedic surgery, New York City.