Appellate court affirms minimal award to construction worker


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Appellate court affirms minimal award to construction worker

  1. 1. Appellate Court AffirmsMinimal Award toConstruction WorkerOn May 4, 2004, John Mescall, a 42 year oldconstruction worker, was standing on top of abuilding’s exterior canopy when a cranedropped a 25 by 25 foot steel mesh causing itto fall 20 feet in the air and strike Mescallbetween his neck and shoulder.
  2. 2. Here is the Ironworkers Building at 37-31 30th Street in Long IslandCity, where this accident took place:Mescall was taken to the local hospitalcomplaining of shoulder pain. He wasdiagnosed with fractures of his leftclavicle, T-1 and T-2 transverseprocesses and first though third ribs onhis left side and treated with painmedications and a sling.
  3. 3. A transverse process is a bonyprotrusion from the back of avertebrae:Mescall claimed the accident alsocaused head, neck, back, ankleand shoulder injuries whichrequired four surgeries (includingankle tendon repair in2006, shoulder arthroscopies in2007and cervical fusion surgery atC5-6 in 2009) and left him withunable to return to work.
  4. 4. Ankle tendons attach muscles ofthe lower leg to the ankle and foot:
  5. 5. In his ensuing lawsuit under Labor Law Section240, Mescall was granted summary judgment onliability and the matter proceeded to a trial ondamages only.On October 14, 2012, a Manhattan jury awardedplaintiff pain and suffering damages in the sum of$25,000 (past only – 6 1/2 years).The jury also awarded $124,000 in past medialexpenses (an amount the parties had agreedupon), $90,000 in lost earnings and $200,000 in futuremedical expenses (27 years).On appeal, plaintiff argued that the pain and sufferingaward was inadequate and, in view of the fact that thejury awarded $200,000 for his future medicalexpenses, inconsistent in that he should have beenawarded damages for future pain and suffering.
  6. 6. In Mescall v. Structure-Tone, Inc. (1st Dept. 2012), the all of thedamages awards were affirmed.As indicated in the court’s decision, the jury had evidencebefore it from which it was reasonable to conclude that most ofMescall’s injuries pre-existed this accident and that the others(fractured clavicle, vertebra and ribs) had healed.The evidence relating to plaintiff’s pre-existing injuriesincluded several accidents and lawsuits in which Mescall madeclaims of injury and received diagnoses as follows:1989 work-related accident resulting in disc herniation at L4-51994 trip and fall accident which he claimed causedpermanent injuries to his neck, back and knee with an ultimatediagnosis of lumbar radiculopathy and a recommendation forepidural steroid injectionsaerial lift accident on July 4, 2000 in which Mescall was struckon the side of his head and which, according to his doctor’sreport just four months before the May 4, 2004 constructionaccident, left Mescall totally disabled due to permanenthead, vision and hearing injuriescervical radiculitis radiating pain to both shoulders for yearsbefore and within a few months of the 2004 constructionaccident with positive tests for rotator cuff injuries andshoulder impingement syndrome
  7. 7. Inside Information:The jury was shown surveillance videotape of the plaintiffwalking along a beach on a hot summer day. The defenseclaimed that it showed plaintiff walking, bending, lifting andtalking on a cell phone without any indication plaintiff was inpain or had any difficulties. Plaintiff’s attorney said that thepresentation of the video was a desperate act by which thedefense sought a damages discount.Plaintiff’s attorney asked the jurors to award $5,000,000 inpain and suffering damages ($2,000,000 past, $3,000,000future). He also requested $500,000 in future loss of earningsand $4,700,000 in future medical expenses.
  8. 8. Some of our clients have sufferedthis kind of injuries due to a seriousaccident. The Garcia Law Firm, P.C.was able to successfully handlethese types of cases. For a freeconsultation please call us at 1-866- SCAFFOLD or 212-725-1313.POSTED BY ATTORNEY RENE G. GARCIA: