Construction Site Accident - On the Job Injury - Brain Injury
Phil Russotti obtained a $4,000,000.00 settlement for our 47 year old plumber who was injured in a construction accident at the Kings County Courthouse. A duct which was being dismantled struck him in the head as he walked through the area wearing his hard hat. It was not secured with ropes or pulleys and was just dangling over our clients head.
The defendant contended that appropriate safeguards were used and the plaintiff was warned on two occasions preceding the incident to avoid the area because of the potential hazard and removed yellow caution tape to enter the area immediately before the incident occurred. The defendant maintained that the plaintiff was a recalcitrant worker, which constituted a defense under the labor law.
WRSH partner Mitch Kahn established at deposition that the workers doing the dismantling, for amusement purposes, spent some time watching the night arraignments at the Courthouse, which remained open and set around drinking coffee until almost 6:30am. This caused them to start work when the day shift was arriving, exactly what they were not supposed to do.
A co-worker of the defendant’s company heard the plaintiff scream and rushed to him, calling 911. In a sworn statement, the witness indicated that several minutes earlier, she observed the defendants working without pulleys or ropes and simply cutting the hangers that secured the duct. The statement also reflected that no caution tape was in the area. In the statement, the witness indicated that several minutes before the incident occurred, she chastised the workers for doing this work in an unsafe manner. The witness moved in the several year period following the incident and when ultimately found, she indicated that she had put the event out of her mind and had no recollection of the details contained in the statement. However, Phil took her pre-trial deposition where she testified that the contents of the statement were true and accurate. Thus, we established that in the absence of current recollection in view of the foundation created in the witness’ EBT, the statement would be admitted as a past recollection recorded exception to the hearsay rule strengthening our case.
The plaintiff suffered a concussion as well as lumbar and cervical herniations. Approximately 1 ½ years after the event, the plaintiff underwent a lumbar fusion that included the installation of a titanium cage. Approximately eight months later, the plaintiff had an initial cervical fusion. However, because of pseudoarthrodosis, the plaintiff required a second cervical fusion approximately two years later. The plaintiff further contended that he suffered a mild TBI that left him with moderate but permanent memory and concentration deficits.
The treating neuropsychologist found that the testing appeared to reflect a degree of malingering on the part of the plaintiff. However, we would have pointed out that in subsequent testing, the plaintiff’s results improved, which would be inconsistent with someone who was malingering. The plaintiff contended that he will be permanently unable to work in a physical capacity and that he sustained a significant diminution in earning capacity. However, he had a limited earning history which defendant capitalized on in arguing to reduce the lost earning claim.
The case settled on the day of jury selection prior to trial for $4,000,000.00.