Page 18 - 2014_0430_TOPVERDICTS

2013

TOP VERDICTS NY

-Continued from p17
the saw and began cutting the 6” pipe. Soon after he began cutting, the upper wall of
the excavation caved in on him, knocked him down and caused him to lose control of the
RESULT The jury found that Atoynatan and New York Methodist Hospital’s staff departed saw. Plaintiff estimates 200-300 pounds of earth collapsed on top of him. As a result he

from accepted standards of medical care. The hospital was assigned 75 percent of the sustained facial lacerations, a torn rotator cuff and neck and back injuries. Plaintiff was
liability, and Atoynatan was assigned 25 percent of the liability.
removed by ambulance to Jacobi Medical Center.
The jury determined that Jaelin’s damages totaled $24,813,260. That amount will be Plainftiff’s expert engineer, Scott Silberman, opined that NYC DOT Rules & Regulations
adjusted to reflect inflation, and the adjusted amount will be reduced to a present-day value.
require permits for this work and that an excavation greater than 5’ deep requires shoring,
bracing or sloping on all sides. No permits were obtained, nor was the excavation shored,
JAELIN SENCE $4,000,000 Personal Injury: Past Pain And Suffering braced or sloped. Plaintiff also argued the dangerous excavation violated the similar safety
$177,510 Personal Injury: future medical cost (61 years)
requirements of Industrial Code §23-4.1(b) and 4.2(a) and (b). Additionally, Plaintiff

$4,282,200 Personal Injury: future cost of therapy (61 years) contended the taped-open trigger on the gas powered saw violated Industrial Code§ 9.2
$643,550 Personal Injury: future cost of medical equipment (61 years) (a) which requires that...
$2,080,000 Personal Injury: future cost of home health aide (2013 to 2039) “ all power-operated equipment shall be maintained in good repair and proper
$5,250,000 Personal Injury: future cost of home health aide (2039 to 2074) operating condition at all times. Sufficient inspections of adequate frequency shall
$1,365,000 Personal Injury: future lost earnings (39 years) be made ... to insure such a maintenance. Upon discovery, any unsafe condition
$7,015,000 Personal Injury: future pain and suffering (61 years)
in such equipment shall be corrected by necessary repairs or replacement.”
The contract between co-defendants B.F. Fries and Home Depot stated that contractor
This report is based on information that was provided by B.F. Fries is responsible for “initiating, maintaining and supervising all safety precautions,”
EDITOR’S COMMENT
plaintiffs’ counsel and AFAM Multi-Specialty Medical Group’s counsel. The remaining and shall take “all reasonable precautions for the safety of, and shall provide all reasonable
defendants’ counsel did not respond to the reporter’s phone calls.
protection to prevent damage, injury or loss of all employees on the work.” The safety
requirement extended to “all the Work and all materials and equipment... under the care,
custody and control of the Contractor (B.F. Fries) or any of his Subcontractors or Sub-
subcontractors”
NUMBER NINE
Defendant’s called the backhoe operator and foreman. The backhoe operator said there
was no trench collapse and that the saw kicked back. The foreman, who arrived shortly

CONSTRUCTION
after the accident, said there was no tape on the saw and that he found no evidence of a
trench collapse. Plaintiff countered that the volume of earth comprising a 200 – 300 pound
Construction Accident — Labor Law — Unsafe Excavation — Lack of Shoring — Unsafe Equipment
collapse in a trench this size would not be readily visible
Construction excavation collapse and dangerously General Contractor B.F. Fries’ on-site superintendent Arthur Schumann testified that his
company was directly in charge of site safety; that all excavations deeper than 4’ required
shoring or bracing; that he was aware the subject excavation work was being performed
modified saw caused Laborer’s injuries
but did not inspect it until after the accident; and, that he had the authority to stop unsafe

work or direct that it be done safely.

INJURIES/DAMAGES Plaintiff was transported by ambulance to Jacobi Medical Center AMOUNT
$20,026,366
with multiple facial and shoulder lacerations requiring sutures. He also sustained a
torn rotator cuff which required subsequent surgery. MRI’s confirmed Plaintiff’s severe TYPE Decision-Plaintiff
radicular pain resulted from herniated discs at C5-C6 & L5-S1 and subluxation at L5-S1. CASE Bajramaj v. Ciminello Industrial
This injuries also created significant spinal instability. Three of plaintiff’s treating VENUE Bronx County Supreme Court

physicians all testified the partial collapse of the excavation was the competent producing JUDGE
Alison Y. Tuitt
cause of his injuries.
Plaintiff underwent surgery for his torn rotator cuff and for spinal fusions at C5-C6 and DATE
July 2, 2013
L5-S1. The spinal fusion surgery at L5-S1 was unsuccessful resulting in what defendant’s
consulting orthopedist called a “failed fusion”.
TRIAL
Plaintiff testified to continuing and persistent radiating pain, and detailed a history LENGTH
3 weeks
of 38 operative procedures and an extensive and ongoing pain management regimen.

Plaintiff’s doctors also noted that he sustained a subsequent herniation at L4-L5 due to INJURY
the spinal instability caused by his original injuries and that he has lost more than 50% TYPE(S)
multiple herniated discs; cervical and lumbar spinal fusion surgeries;
of the motion in his back and neck.
unsuccessful lumbar fusion; failed back syndrome; constant back pain;
surgery for torn rotator cuff; facial and shoulder lacerations
RESULT The Jury found Defendants were found 90% at fault on 4 different theories of
liability. Plaintiff bore the remaining 10% comparative negligence.
PLAINTIFF
ATTORNEY(S)
Alan M. Shapey, New York, NY of Lipsig,Shapey,Manus, P.C.

PAST PAIN AND
PLAINTIFF SUFFERING
$2,901,546
EXPERT(S)
Scott Silberman, P.E.; New York, NY
Jeffrey Kaplan, M.D., Orthopedist; New York, NY FUTURE PAIN
Paul Brisson, M.D., Surgeon; New York, NY AND
Thomas Kolb, M.D., Radiologist; New York, NY SUFFERING
$ 9,000,000 (reduced post-trial to $5,000,000)
Dr. Joseph Carfi, Physiatrist and life care planner
PAST LOST

DEFENDANT EARNINGS
$327,591
EXPERT(S)
Bradley Weiner, M.D., Orthopedist
Edmund Provder, Certified Rehabilitation Counselor; New York, NY
FUTURE LOST
EARNINGS
$2,270,000
FACTS & ALLEGATIONS On July 27, 2007, plaintiff Ljuan Bajramaj worked as
PAST MEDICAL construction laborer employed by subcontractor Triumph Construction Corporation at
EXPENSES
$156,000
the site of a new Home Depot store on Brush Ave, Bronx, New York. That afternoon,

his supervisor directed him to raise a fire hydrant located near the sidewalk fronting the
FUTURE property along Brush Avenue.
MEDICAL A Triumph Construction co-worker used a backhoe to excavate an area around the
EXPENSES
$5,371,167
hydrant approximately 9 feet deep, 6 feet wide, and 9 feet long. As instructed, Plaintiff
turned off the water supply in the street leading to the fire hydrant. He then descended
into the trench using a 12 foot extension ladder, and a co-worker lowered a gas powered Defendants moved Post-trial to reduce damages as excessive, the court reduced future
circular saw down to him. The trigger on the saw, the only one available, was taped in the pain and suffering from $9 million to $5 million.

fully open position. Normally, if the operator let go of the trigger, the blade would stop
spinning. The taped-open trigger bypassed this essential safety feature. Plaintiff started
-Continued on p20

18 VerdictSearch’s Top New York Verdicts of 2013