Blog

A Strategic Partnership for the Injured

In this episode of The Jeffrey Gross Show, host Jeffrey Gross, Esq. and co-host Joe Dougherty are joined by Ken Fulginiti, Esq., of Fulginiti Law. With a combined 70 years of legal experience, Gross and Fulginiti pull back the curtain on how workers’ compensation claims often hide massive “third-party” personal injury cases that many victims—and even some lawyers—overlook.

The “Other” Party: Defining Third-Party Litigation

One of the most common points of confusion for injured workers is the concept of “immunity.” Under the law, you generally cannot sue your employer for negligence. However, as Gross explains, “third-party” simply means “other.” If a machine fails because of a manufacturing defect, or if a contractor from a different company causes an accident on a job site, that entity is a third party.

Ken Fulginiti specializes in these complex, catastrophic cases. He emphasizes that while Jeffrey Gross secures immediate wage and medical benefits through workers’ comp, a third-party lawsuit allows the victim to seek damages that workers’ comp doesn’t cover: pain and suffering, loss of life’s pleasures, and full future economic losses.

From Arbitration to the $100 Million Gamble

The discussion explores the mechanics of the Philadelphia court system. While smaller cases (under $50,000) go through the faster arbitration process, catastrophic injuries require a jury trial. Ken and Jeff discuss the high-stakes “risk assessment” involved in these trials. In Pennsylvania and New Jersey, attorneys cannot suggest a specific dollar amount to a jury for pain and suffering; instead, they must rely on the “economic component”—the medical bills and lost wages—to anchor the jury’s decision.

Ken shares a striking example from a Delaware trial where a diesel mechanic with only $6,000 in medical bills was awarded $1.6 million because the jury understood that his “life” was his ability to work with his hands.

Firm Resources and the “U-Haul” Battle

A recurring theme is the necessity of hiring a firm with the financial resources to fight corporate giants. Ken recounts a food truck explosion case where he faced off against 30 defense attorneys from U-Haul. He explains that a personal injury firm must be willing to front hundreds of thousands of dollars for experts, crash tests, and international depositions. If a lawyer is worried about paying their own rent, they likely won’t hire the $150,000 engineering expert needed to win a $15 million verdict.

The Human Element: Managing the Worst Day of a Client’s Life

Beyond the technicalities, the hosts discuss the emotional weight of their work. Jeffrey Gross notes that his phone starts ringing at 6:30 AM with panicked clients who haven’t received their checks and can’t feed their families. Ken adds that in catastrophic cases, the attorney often becomes a therapist, helping a family navigate the transition from being a breadwinner to facing a life-altering disability.

Through constant communication and specialized networks of doctors and life-care planners, Gross and Fulginiti ensure that their clients are not just “cases,” but families being guided toward a dignified future.

Episode Transcript: The Jeffrey Gross Show

Date: August 5, 2025

Host: Jeffrey Gross, Esq.

Co-Host: Joe Dougherty

Guest: Ken Fulginiti, Esq.

Speaker 1 (Announcer): The following program is sponsored by the Law Offices of Gross & Kenny. The views expressed do not necessarily reflect those of WWDB, its staff, or management.

Speaker 2 (Joe Dougherty): All right, ladies and gentlemen around the Delaware Valley, welcome to the Jeff Gross Show here on WWDB Talk 860. We’ve got a fantastic broadcast. Jeff, how are you, sir?

Speaker 3 (Jeffrey Gross): I’m good. Joe, how are you?

Speaker 2 (Joe Dougherty): I could not be better. Beautiful day today, outstanding. I was down the shore for the weekend, and, you know, we’re going back next week. I could have stood this day of the week. It was a beautiful weekend down there. We have Ken Fulginiti, of Fulginiti Law, as our guest. How are you, Ken?

Speaker 4 (Ken Fulginiti): I’m doing great. Thank you for having me, and Jeff, thank you for having me.

Speaker 3 (Jeffrey Gross): Pleasure to have you. Thank you. Thank you so much. I’m a big fan of Ken’s.

Speaker 2 (Joe Dougherty): Oh, that makes me a big fan of Ken. So we’re starting off on the right foot. I was saying to Ken, we talk a little sports. Big thing in the city right now is the new reliever, Jhoan Duran. Ken, you were mentioning him. He’s played two games now. I said to my wife, “A, we’re lucky they were night games and B, we’re lucky they’re at home,” because we get to see that show. Last night, he threw the three fastest pitches in the history of the Bank. I think the last pitch of the game was 103.3.

Speaker 4 (Ken Fulginiti): Yeah, that’s insane.

Speaker 2 (Joe Dougherty): And Philly, as you know, so many great athletes have come here and just folded under the pressure. We have our Brian Dawkins types and the great players that we love, but so many people just wilt. About a week ago, people had crews looking for Dombrowski, the general manager. Everybody wanted his neck. But in Philly, we also are very forgiving. He goes out and gets Duran, and now we’re running him for mayor. It’s a working-class town, which you guys represent in the workforce. But it is funny how fast we turn; it’s like the greatest show on Earth.

Speaker 3 (Jeffrey Gross): It is. And, you know, I think we’re fair-weather fans, but we’re also the other way. Like Mike Schmidt when we were kids, when he wore the wig. It is a bit of a bipolar town.

Speaker 4 (Ken Fulginiti): Well, everybody’s got such high expectations for this guy. We’ve set the bar very high. I’m going to just be honest about it: the first time he loses a game, we’re going to go attack him. He’ll be the worst pitcher in baseball. “Where did this guy come from? Send him back to Minnesota.”

Speaker 2 (Joe Dougherty): No, but it is amazing. It’s a pretty cool thing. Just when you thought we had major problems with our relievers and we were in huge trouble, Duran shows up. Now, let’s be honest, it’s been two games. I don’t want to jinx it. But we gotta take advantage of the high. Could you imagine what it’s like? He must be like Bruce Springsteen running out of the tunnel to 60,000 people. You just don’t want to go into his head, though, or he’ll become a head case. These relievers—or I should say closers—are a different breed. They have ice water in their veins and short memories.

Speaker 3 (Jeffrey Gross): You remember Jonathan Papelbon, of course.

Speaker 2 (Joe Dougherty): Oh, Papelbon and Brad Lidge. Last week, Papelbon was out of his mind, but he’s got a lot of saves in his career. On Sportsnet, they were doing an anniversary special for Cole Hamels’ no-hitter. Their main guest was Larry Bowa, and they bring Papelbon on the show. First thing he does is show them his drink. Tom McCarthy says, “Tell us what the feeling was as that game was going on.” Papelbon says, “Man, I don’t really remember. I was sleeping most of the time.” Hamels is laughing because he knows him. Tom goes, “What was the feeling after the no-hitter?” Papelbon says, “I’m not really feeling it. I think I was passed out in the back.” He’s a reliever like Mitch Williams—just a different breed. Who knows what’s going to happen when Duran blows a game? But what I liked was that his ball was breaking. It was coming in and breaking hard; they couldn’t barrel it. Hopefully, he’ll turn it around for us. We really do need a closer.

Speaker 3 (Jeffrey Gross): It’s about morale with the team. When they start doing better, the feeling in the city is different.

Speaker 2 (Joe Dougherty): We’re a little bipolar, and Duran is our meds right now. Great way to put it. So let’s go a little bit around the horn. Jeff, remind our listeners about yourself and your practice.

Speaker 3 (Jeffrey Gross): We handle all workers’ compensation claims in Pennsylvania and New Jersey. We are in Philadelphia and have been doing this forever. We only represent the injured worker. We never, ever represent insurance companies. We do everything we can to help the little guy get his money.

Speaker 2 (Joe Dougherty): Fantastic. Ken, if you will, a little bit about yourself and your firm.

Speaker 4 (Ken Fulginiti): I’ve been practicing for 35 years. My firm handles all “third-party” litigation. We don’t handle the workers’ comp end, but we do product liability and construction cases. Many cases come from workplace accidents because of machine failures or negligent contractors from different employers. We do medical malpractice, construction defects, trucking accidents, boat accidents—anything that involves third-party negligence. Like Jeff, we don’t represent insurance companies or defendants. We represent the people who got hurt or lost their lives.

Speaker 3 (Jeffrey Gross): For the listeners, in the law, “third-party” means “other.” It doesn’t mean number three. You can’t sue your employer because there is immunity under the Workers’ Comp Act. The third party is someone other than your employer that Ken would sue. We are very good complements to each other because I bring the workers’ comp claim and Ken brings the third-party claim against the negligent entity, maximizing the recovery for the individual.

Speaker 2 (Joe Dougherty): Ken, what got you into this particular area?

Speaker 4 (Ken Fulginiti): I actually started out doing defense work for insurance companies for 10 years. Part of that was subrogation work. You represent the insurance company on the plaintiff side to get their money back. For example, some people remember the Meridian fire. I worked on that right after it happened. The insurance companies paid millions in claims, and people died in that fire. The companies wanted their money back, so we traced the cause of the fire—whether it was an electrician, a roofer, or old wiring. We would go after the property manager. Those were subrogation claims. I was doing the “plaintiff” part of it for the insurance companies and then moved into representing the actual accident victims.

Speaker 2 (Joe Dougherty): That’s an interesting pathway. A lot of successful personal injury or workers’ comp attorneys started on the defense side. It seems beneficial because you’re cutting your teeth. But when you’re 28 years old, it might be hard to get a catastrophic client to trust you if you don’t have “razor stubble” on your chin. Is starting in defense a beneficial way to grow up in that area of law?

Speaker 4 (Ken Fulginiti): It’s not easy coming out of law school thinking you’re going to get catastrophic injury cases unless you have connections to the unions or family in the trades or judiciary. Starting in defense helped me cut my teeth on arbitrations and smaller level cases. Being over at the Arbitration Center every day trying smaller personal injury cases was really beneficial. You get a reputation, and then you migrate to the personal injury side. Gray hair helps, and then cases start coming in because you work your tail off.

Speaker 2 (Joe Dougherty): When you say “arbitration,” what does that mean?

Speaker 4 (Ken Fulginiti): In every county in Pennsylvania, there is an arbitration level. When I started, it was $10,000 or $20,000, but now it’s moved up to $50,000. If you don’t want to go through a jury trial first, you can declare your case as an arbitration-level case. It’s faster and less expensive, but the decision is also appealable to a jury trial.

Speaker 2 (Joe Dougherty): How much faster?

Speaker 4 (Ken Fulginiti): You probably get an arbitration date in nine months or so. I haven’t done one in 25 or 30 years, but you go before three attorneys from the city who give up their afternoon. They try to balance it with two plaintiff attorneys and one defense, or vice versa. They decide the case, and then it can be appealed.

Speaker 3 (Jeffrey Gross): I used to do a ton of arbitrations way back when I was doing personal injury work. The most fun thing is being an arbitrator. Since I did workers’ comp, they usually made me the “neutral” arbitrator. Every once in a while, you’d have a stout defense attorney as the third arbitrator who would say, “All right, let’s give away some money.”

Speaker 2 (Joe Dougherty): Funny you should mention that. I owned a nightclub and went through arbitration once. A woman got in a fight in the middle of our dance floor. It took my security 20 minutes to get there, and I had 50 guards. She got in a fight within 15 feet of them. I didn’t even have to be there, but they settled the order for $50k. I’m a regular dude; I’m not trying to press down on the little guy. But that was ridiculous because she said she was a hair stylist and lost her business. My attorney, Drew Malik, said it could have cost more to go another route, so we went that way. Risk assessment is exactly what you describe.

Speaker 4 (Ken Fulginiti): Risk assessment is huge. I handle cases throughout Pennsylvania and New Jersey. Sometimes I get admitted “Pro Hac Vice” in other states like Delaware if I have a local person to vouch for me. Philadelphia is a spectacular county for personal injury practice because when you file your complaint, you get a trial month almost immediately. Other counties are on an “honor system” where both parties have to agree discovery is over. In front of a jury, people don’t realize that in some states like California or Texas, you can suggest a specific dollar amount, like “$25 million for a lost leg.” You can’t do that in Pennsylvania or New Jersey. You can’t suggest a number for pain and suffering. You give evidence for lost wages and medical bills, but the pain and suffering number is entirely in the hands of the jury. They could come back with $100 grand or $100 million. So, settlement is about risk assessment. If a client wants a certain amount and the defendant gets to 80% of it, the client might not want to roll the dice. If the number doesn’t get close, that’s when you try the case.

Speaker 3 (Jeffrey Gross): Most of these cases won’t see an arbitration because the damages are much larger than $50,000. There are two types of damages: economic and non-economic (pain and suffering). Economic damages are what I calculate—wages, medical bills, and future extrapolation. The third party personal injury claim follows workers’ comp. The larger the economic damage, the exponentially larger the non-economic claim in a perfect world. Non-economic damages include pain, suffering, loss of life’s pleasures, anxiety, and depression. These are nebulous and calculated through an educated guess based on the economic component.

Speaker 2 (Joe Dougherty): Ken, how do you calculate those future economic expenses if someone isn’t working?

Speaker 4 (Ken Fulginiti): You don’t even have to be working at the time to have a future economic claim. If you were a stay-at-home dad planning to go back to work when your child turned 16, you can make a claim for future lost wages and benefits. We hire vocational experts to evaluate the situation. A physically demanding job in the trades could be ended by a bad shoulder or knee. If someone has a desk job, maybe they can still work, but a traumatic brain injury or concussion changes that. We have neurologists and neuropsychologists evaluate the impact. I handle many cases where children suffer concussions. There is so much concern now about early-onset dementia in children who suffer brain injuries. We have life-care planners evaluate future medical needs like facility care or replacement wheelchairs. Our doctors sign off on those reports. Non-economic damages are the “wild card.” I have a trial starting soon for a carpenter with three kids. We use pictures of him playing baseball with his firstborn to show what he can no longer do with his younger children. We bring in co-workers to say, “This guy was a superstar,” and show that he can no longer lift 50-pound bundles of cable.

Speaker 2 (Joe Dougherty): That’s a great point. I’ve lost more than a handful of ironworker friends on high-rise buildings. Not too many people have sat there while families come in after a catastrophic injury. When you know it’s a catastrophic injury, what’s it like when that family walks into the office and you’re the only one standing? This isn’t a football game where you get over a loss. This is the difference between living a dignified life and not.

Speaker 4 (Ken Fulginiti): Every single client we represent is important. In my office, we are in constant communication—a vestige of my defense days. The number one complaint clients have about lawyers is “I never hear from them.” We email or call weekly or monthly. Some people want to be left alone to let me do my job; others are more “needy,” and I’m fine with that. I want my clients in on the depositions, even if it’s Zoom. It matters when a defense construction manager sees a hard-working guy on the screen who is invested in his case. It is sad when they’ve lost a spouse or a leg. Sometimes our job is to show the jury the human impact. I had a trial in Delaware for a broken wrist with $6,000 in medical bills. My client was a diesel mechanic and truck driver. I found his yearbook from when he was 16, and it said his only plan was to be a diesel mechanic. I showed the jury that while the person next to him wanted to smoke pot or go to Hershey Park, this was all my client ever wanted to do, and now he couldn’t. The jury awarded $1.6 million on $6,000 in medical bills because we made it clear how much his life was impacted.

Speaker 2 (Joe Dougherty): That reminds me—Jeff, you must see people in a panic because their benefits got shut down. People talk about AI and the law, saying we won’t need lawyers. But you wouldn’t need a lawyer if it was just about who was #1 in the class. It’s about understanding people and representing them to a jury.

Speaker 3 (Jeffrey Gross): My phone starts ringing at 6:30 AM with panicked clients. “When am I going to get paid? I didn’t get my check.” It’s micromanagement of their lives. If someone doesn’t do that for them, they’re lost. I have to make sure their living arrangement is good and they can eat while I build the economic damage factor so Ken can take the ball and run with the third-party case.

Speaker 2 (Joe Dougherty): How do you set expectations in that first meeting? You see the billboards with the cash bags, but serious attorneys have to deal with the aftereffects of those expectations. Ken, you mentioned the Meridian fire earlier. I worked that job. We were “gloving” the building so nothing would fall out during the demo. I brought a football up there; I was a wild kid. We lost firemen right at the exit at the top. I got canned from that job and was terrified because I knew there was no other work in the city. When a breadwinner comes to you and has to go home to their family, how do you educate them on day one?

Speaker 4 (Ken Fulginiti): If workers’ comp is involved, Jeff is working on those benefits. But if someone is rear-ended by a tractor-trailer while driving to work and can’t work anymore, there’s no income. I tell them I’m going to work the case aggressively. I don’t want a case to sit; you have two years to file a lawsuit, and I often have cases finished before then. We are not just their attorney; we are a therapist. We wear so many hats. I remember one guy whose brother was killed by a drunk driver. He was the witness and worked on antennas. A year after his brother’s case resolved, the guy fell off a building and died. That was the only time I met a client before they got hurt. We are meeting people in the worst part of their life.

Speaker 3 (Jeffrey Gross): It’s about managing expectations. Sometimes I have to paint a bleak picture: “They are contesting your claim. You won’t get paid until there is a settlement or a judge’s decision, which could take a year.” That’s a hard pill to swallow. Then we manage what happens next—will they go back to work or move into a different type of job?

Speaker 2 (Joe Dougherty): A lot of workers don’t even know they have a third-party case. They think if they got hurt on their own, that’s it. Jeff, what’s your process for assessing that?

Speaker 3 (Jeffrey Gross): I assess the entirety of the situation. If there’s any doubt, I call Ken. Sometimes it’s obvious, but often it’s difficult to ascertain if the employer contributed to the conflict, which could bar the claim. You have to ensure there is another entity’s negligence to sue. I also make sure they know about attorney-client privilege. Many people are afraid to stop working or make waves because they think they’ll be blacklisted. They have to know their rights and the consequences of not asserting them. I treat them like family. I give them my cell number and tell them to text, call, or bang on my door.

Speaker 2 (Joe Dougherty): How important is the communication between the workers’ comp and personal injury attorneys?

Speaker 4 (Ken Fulginiti): Things that happen in comp impact our case. I tell my client to let me know if they have a comp hearing or a medical exam. In the comp world, “how” the person got hurt isn’t always a deep dive on cross-examination, but the mechanism of injury is vital for adding additional injuries to the claim. If a comp judge denies that a neck injury is related to the accident, that claim is automatically barred in the third-party case.

Speaker 2 (Joe Dougherty): What if you get the call months later and “spoliation” has occurred?

Speaker 4 (Ken Fulginiti): Spoliation is the loss or destruction of evidence. I got a call recently about someone pulled into a machine. The owner wanted to get it back in service, but we had to tell them to stop and take it out of service. Trucks and cars have black boxes with electronic data. We have a warehouse in Bucks County where I have an entire bus sitting because I represent a dozen girls injured in an accident. We preserve the evidence and then begin the investigation with Jeff.

Speaker 3 (Jeffrey Gross): If the third-party case settles before the claimant is ready, it can impact their wage loss or medical benefits. I build up the claim for the economic damage factor. Vital communication is required.

Speaker 2 (Joe Dougherty): Have you ever seen attorneys take different strategies because they didn’t communicate?

Speaker 3 (Jeffrey Gross): Absolutely. I had a third-party attorney call me for advice because the workers’ comp lawyer settled the claim without telling her. He didn’t put “protective language” in the agreement that allows for additional injuries to be litigated on the third-party end. Now there’s a motion for summary judgment on those injuries. That ruins the case and the recovery.

Speaker 4 (Ken Fulginiti): It’s rare that I get a case first, but it happens. Sometimes I develop a relationship with the employer to get their cooperation because if I’m successful, I have to pay back their lien. In my office, every person works on every case, so if a client calls, anyone who picks up the phone knows what’s going on. That makes the client comfortable when I refer them to Jeff.

Speaker 2 (Joe Dougherty): What about the contingency fee agreement? Some people think they can’t afford you.

Speaker 4 (Ken Fulginiti): There are no out-of-pocket costs. If an attorney asks for a retainer in a personal injury case, you’re in the wrong place. We front all the expenses. I’ve had cases where I’ve advanced $350,000 for experts, depositions, and travel. If you have foreign manufacturers in Asia, they want depositions in California or Hawaii. A client needs to find a firm that has the resources to fight big insurance companies who have unlimited coffers. I once had a food truck explosion case where a little girl suffered burns on 65% of her body. I went to depositions and faced 30 U-Haul attorneys. You need someone who can fight that and take the risk, because if you lose, the client doesn’t pay us a penny.

Speaker 3 (Jeffrey Gross): My fee is a standard 20% across the board. We front the costs, and they are reimbursed by the insurance carrier when we win or settle. If I lose, I don’t get a fee and there are no costs to be paid back.

Speaker 2 (Joe Dougherty): Ken, how do people get in touch with you?

Speaker 4 (Ken Fulginiti): My office is at 2005 Market Street. My cell is 215-771-5956. Our website is fulginiti-law.com. That’s F-U-L-G-I-N-I-T-I. We are 24/7. If you’re in a hospital at 2:00 AM, call me.

Speaker 3 (Jeffrey Gross): Same here. My cell is 215-512-1500.

Speaker 2 (Joe Dougherty): I want to thank everybody for tuning into the Jeff Gross Show. Thank you, Jeff and Ken.