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$9,750,000 Settlement for Worker Seriously Injured at Long Island Construction Site

On October 26, 2019, our client, then 42-years-old, fell from a six-foot scaffolding while working overhead installing crown molding. He sustained serious orthopedic and neurological injuries requiring a right shoulder arthroscopic surgery, emergency laminectomy, three-level cervical fusion, four-level lumbar fusion, and the implantation of a permanent spinal cord stimulator. His injuries rendered him incapable of obtaining any type of gainful employment.  Represented by partner Daniel O’Toole with associates Pawel Wierzbicki and Joshua Stern, he received a $9,750,000 settlement.

Court and County
Suffolk Supreme

Description of Case
The case arose out of an accident which occurred at a construction site wherein then 42-year-old Plaintiff was working for a non-party general contractor performing carpentry work.  Plaintiff was on a scaffolding installing crown moldings just below the ceiling at the time of the accident.  In the area where the accident occurred, the ceiling was twelve to thirteen feet high.  Plaintiff was provided with a six-foot-high Baker scaffold to perform his work.  The scaffolding did not have railings, it was old, and its platform was bent. There was no alternative safety device available to perform his work.  In addition, Masonite, a protective covering placed on the floor in the area of the accident to protect it during the work, was old, wet, and bent, making it difficult for the scaffold sitting on top of the Masonite to remain level, creating a hazardous working condition.  Further, Plaintiff was not provided with any type of fall-arrest system. While using a nail gun to install the moldings, Plaintiff fell backwards onto the ground and the scaffolding fell on top of him.  

Plaintiff moved for summary judgment arguing that this gravity related accident is the exact type New York’s legislature sought to prevent against by the passing of Labor Law §240, otherwise known colloquially as the “scaffolding statute.” The judge granted the motion, finding that the accident was caused by “the absence or inadequacy of a safety device of the kind enumerated in the statute.”  As a result of this finding of the Defendants’ fault, the matter was scheduled for a “damages only” trial.

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Plaintiff injured his neck, back, and shoulder in the accident.  He tried to return to work after resting for three days following the accident and was sent home.  He appeared at the hospital approximately one week later and would undergo emergency laminectomy three weeks later.  After failed conservative treatment, he underwent a three-level cervical fusion, four-level fusion, and right shoulder arthroscopy.  He unfortunately sustained a serious nerve injury following this surgery rendering him in constant pain in his lower right extremity.  He walks with a cane due to weakness in his right leg.  Finding no relief from his pain, a spinal cord stimulator was implanted. 

Of note, Plaintiff had prior accidents wherein he injured his neck and back resulting in lumbar laminectomies; however, he recovered well enough to work fulltime as a carpenter for the same contractor for almost ten years.  He has not returned to work since shortly after the accident at issue. Had the case gone to trial, a vocational rehabilitation expert and Plaintiff’s treating doctors and physical medicine and rehabilitation expert would have opined that Plaintiff was incapable of returning to any type of gainful employment, including an inability for rehabilitation to learn how to perform sedentary work due to his medical conditions.   As a result, Plaintiff set forth a significant lost earnings claim. 

Plaintiff alleged the expected costs of lifelong medical treatment related to the injuries sustained in the accident as an element of damages.  He was examined by a medical specialist in physical medicine and rehabilitation.  This doctor opined that Plaintiff will require future visits with a spine specialist, orthopedist, pain specialist, physical therapist, diagnostic testing, changes to his batteries for the spinal stimulator, one device removal and reinstallation, injections and medications, as well as the need for both cervical and lumbar fusions due to anticipated adjacent level syndrome.  He also opined that Plaintiff is and will be disabled from employment, including sedentary work.  The physical medicine and rehabilitation specialists also provided the current costs of the anticipated treatment. The expected inflation rates for these costs of medical care were applied by Plaintiff’s expert economist and the resultant cost of future healthcare was claimed as part of the Plaintiff’s economic damages. In the event the case had gone to trial, we also would have alleged economic loss for past medical expenses.

Defendants hired their own experts to evaluate Plaintiff. Their doctor conceded the L2 disc emergently operated on was related to the accident, but denied any other treatment or procedures were related. Defendants’ vocational rehabilitation expert opined that Plaintiff was capable of various forms of gainful employment. 

Settlement Amount
The parties resolved this case following a private mediation, one month before trial, for $9,750,000.  

Handling Attorneys
The case was handled by partner Daniel O’Toole with associates, Pawel Wierzbicki and Joshua Stern.

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