Page 10 - 2014_NY_Top_Settlements

2014
TOP SETTLEMENTS NY
-Continued from p8
NUMBER THREE
CONSTRUCTION
Accidents — Labor Law — Slips, Trips & Falls — Fall from Height
Ironworker claimed fall through floor ended career
AMOUNT $9,250,000
TYPE Settlement
CASE Gambale v. 400 Fifth Realty LLC VENUE King County
JUDGE N/A
DATE January 27, 2014
INJURY
TYPE(S) back - bulging disc, lumbar
neck - fusion, cervical, herniated disc, cervical, herniated disc at C4-5, herniated disc at C5-6, fusion, cervical, two-level
other - plate, physical therapy, pins/rods/screws, hardware implanted, epidural injections, trigger point injection
surgeries/treatment - discectomy
PLAINTIFF
ATTORNEY(S) Kenneth Sacks & James J. McCrorie; Sacks and Sacks L.L.P.; New
York, NY, for Michael Gambale
PLAINTIFF
EXPERT(S) Chaim Mandelbaum M.D.; Pain Management; Brooklyn, NY called
by: Michael Gambale
Frank Cammisa M.D.; Orthopedic Surgery; New York, NY called by: Michael Gambale
Michael Pruzansky M.D.; Orthopedic Surgery; Brooklyn, NY called by: Michael Gambale
FACTS & ALLEGATIONS On July 27, 2009, plaintiff Michael Gambale, 32, a union- affiliated ironworker, worked at a construction site that was located at 400 Fifth Ave., in Manhattan. During the course of the day, Gambale and co-workers attempted to lower a 500-pound prefabricated wall onto the 42nd floor of the building that was being constructed. The wall fell through the floor, bringing Gambale with it. Gambale plummeted to the 41st floor, and he claimed that he sustained injuries of his back and neck.
Gambale sued the premises’ owner, 400 Fifth Realty LLC, and the construction project’s general contractor, Pavarini McGovern, LLC. He alleged that the defendants violated the New York State Labor Law.
Gambale claimed that the 42nd floor’s surface was composed of plywood decking that provided a temporary but inadequate surface. Gambale’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law 240(1), and that Gambale was not provided the proper, safe equipment that is a requirement of the statute.
Gambale’s counsel moved for summary judgment of liability, and the motion was granted. Defense counsel appealed, but the appellate division, Second Department, affirmed. The trial addressed damages.
INJURIES/DAMAGES After having received minor treatment from an on-site medical technician, Gambale returned to his home. He later presented to his family physician and Coney Island Hospital, in Brooklyn. He claimed that he was suffering pain that stemmed from his back, his neck and his right elbow. He underwent minor treatment.
Gambale ultimately claimed that he sustained herniations of his C4-5 and C5-6 intervertebral discs and trauma that produced a bulge of his L5-S1 disc.
Gambale initially underwent conservative treatment that included physical therapy and the administration of three epidural injections of steroid-based painkillers. He claimed that the treatment did not resolve his pain. In March 2010, he underwent surgery that included a discectomy--which involved excision of his C4-5 disc--fusion of the corresponding level of his spine, and the implantation of a plate and screws.
Gambale claimed that his surgery produced only temporary relief. In April 2012, after having undergone another course of conservative treatment, he underwent surgery that included fusion of his spine’s C4-5 and C5-6 levels and the implantation of plates and screws. He subsequently underwent pain management that included monthly administration of painkilling trigger-point injections. He also underwent trial implantation of a device that provided pain-relieving stimulation of his spinal cord. Gambale claimed that he plans to undergo permanent implantation of such a device.
PLAINTIFF EXPERT(S)
P. Garell M.D.; Neurosurgery; Carmel, NY called by: Gheorghe Nechifor
David Asprinio M.D.; Orthopedic Surgery; Hawthorne, NY called by: Gheorghe Nechifor
Kristin Kucsma M.A.; Economics; Livingston, NJ called by: Gheorghe Nechifor
Richard Schuster Ph.D.; Vocational Rehabilitation; New York, NY called by: Gheorghe Nechifor
FACTS & ALLEGATIONS On March 4, 2009, plaintiff Gheorghe Nechifor, 45, a union- affiliated laborer, worked at a construction site that was located at 1485 Pacific St., in the Crown Heights section of Brooklyn. During the course of his work, Nechifor fell off of a scaffold. He plummeted about 10 feet, and he landed on a sidewalk. He claimed that he sustained injuries of his back and a heel.
Nechifor sued the premises’ owner, RH Atlantic-Pacific LLC, and the construction project’s general contractor, Hunter Roberts Construction Group, LLC. Nechifor alleged that the defendants violated the New York State Labor Law.
Nechifor claimed that Hunter Roberts Construction Group did not provide a safe means of ascending and descending the scaffold. He claimed that an attachable ladder, which would have provided safe access, had not yet been delivered to the work site. He claimed that he and other workers had to climb up and down the scaffold using its horizontal railings as steps. He also claimed that snow created slippery conditions that contributed to his fall.
Nechifor’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law 240(1), and that Nechifor was not provided the proper, safe equipment that is a requirement of the statute. They also contended that the defendants failed to provide or ensure reasonable and adequate protection, as required by Labor Law 241(6). They further contended that the defendants violated Labor Law 200, which defines general workplace-safety requirements.
Defense counsel contended that a ladder was available for Nechifor’s use.
Nechifor’s counsel moved for summary judgment of liability, and the motion was granted. Judge Jane Solomon found that the defendants violated Labor Law 240(1). Defense counsel appealed, but the appellate division, First Department, affirmed. The First Department noted that defense counsel did not produce evidence that Nechifor was aware of the availability of a ladder or the necessity of its use. The matter proceeded to damages.
INJURIES/DAMAGES Nechifor was transported to Kings County Hospital Center, in Brooklyn. Doctors noted that he was suffering a fracture of his left foot’s calcaneus, which is the heel. The fracture was addressed via open reduction and internal fixation.
Nechifor claimed that he also sustained compression fractures of his L2 and T12 vertebrae. He further claimed that the fractures caused radicular pain.
Nechifor’s fractures were addressed via the application of a Jewett brace, which prevents hyperextension of the patient’s back. Nechifor also underwent years of pain management that included the administration of painkilling facet-block, nerve-block and trigger-point injections. In September 2012, he underwent implantation of an intrathecal pump, which delivers painkillers to the area surrounding the spinal canal.
Nechifor claimed that he suffers residual pain and limitations that prevent his resumption of work. He further claimed that he cannot endure prolonged periods in which he is seated, standing or walking. He also claimed that he requires additional treatment.
Nechifor sought recovery of past and future medical expenses, past and future lost earnings and benefits, and damages for past and future pain and suffering.
Defense counsel contended that Nechifor’s spinal fractures predated the accident. He claimed that, during Nechifor’s initial hospitalization, Nechifor denied that he was suffering an injury of his back. Defense counsel also claimed that Nechifor’s medical records indicate that Nechifor did not use painkillers during the immediate wake of the accident. He claimed that an MRI scan, performed several months after the accident, revealed degenerative conditions but no edema of the spine. He also claimed that the MRI scan did not reveal the nerve impingement that would be a necessary component of radicular pain.
The defense’s vocational-rehabilitation expert submitted a report in which she opined that Nechifor can undergo training that would allow him to perform sedentary work that would provide annual earnings of $40,000 to $60,000. She claimed that he possesses a sub-engineering degree and that he would require merely one year of education to become an engineer.
RESULT The parties negotiated a pretrial settlement. The defendants’ primary insurer tendered its policy, which provided $2 million of coverage, and the defendants’ excess insurer agreed to pay $7.9 million, from a policy that provided $25 million of coverage. Thus, the settlement totaled $9.9 million.
EDITOR’S COMMENT This report is based on information that was provided by plaintiff’s and defense counsel.
10 VerdictSearch’s Top New York Settlements of 2014