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Appellate Court Affirms Minimal Award to Construction Worker

Posted in Back Injuries, Clavicle Injuries, Rib Injuries

On May 4, 2004, John Mescall, a 42 year old construction worker, was standing on top of a building’s exterior canopy when a crane dropped a 25 by 25 foot steel mesh causing it to fall 20 feet in the air and strike Mescall between his neck and shoulder.

Here is the Ironworkers Building at 37-31 30th Street in Long Island City, where this accident took place:

Mescall was taken to the local hospital complaining of of shoulder pain. He was diagnosed with fractures of his left clavicle, T-1 and T-2 transverse processes and first though third ribs on his left side and treated with pain medications and a sling.

A transverse process is a bony protrusion from the back of a vertebrae:

Mescall claimed the accident also caused head, neck, back, ankle and shoulder injuries which required four surgeries (including ankle tendon repair in 2006, shoulder arthroscopies in 2007and cervical fusion surgery at C5-6 in 2009) and left him with unable to return to work.

Ankle tendons attach muscles of the lower leg to the ankle and foot:

In his ensuing lawsuit under Labor Law Section 240, Mescall was granted summary judgment on liability and the matter proceeded to a trial on damages only.

On October 14, 2012, a Manhattan jury awarded plaintiff pain and suffering damages in the sum of $25,000 (past only – 6 1/2 years).

The jury also awarded $124,000 in past medial expenses (an amount the parties had agreed upon), $90,000 in lost earnings and $200,000 in future medical expenses (27 years).

On appeal, plaintiff argued that the pain and suffering award was inadequate and, in view of the fact that the jury awarded $200,000 for his future medical expenses, inconsistent in that he should have been awarded damages for future pain and suffering.

In Mescall v. Structure-Tone, Inc. (1st Dept. 2012), the all of the damages awards were affirmed.

As indicated in the court’s decision, the jury had evidence before it from which it was reasonable to conclude that most of Mescall’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 injuries included several accidents and lawsuits in which Mescall made claims of injury and received diagnoses as follows:

  • 1989 work-related accident resulting in disc herniation at L4-5
  • 1994 trip and fall accident  which he  claimed caused permanent injuries to his neck, back and knee with an ultimate diagnosis of lumbar radiculopathy and a recommendation for epidural steroid injections
  • aerial lift accident on July 4, 2000 in which Mescall was struck on the side of his head and which, according to his doctor’s report just four months before the May 4, 2004 construction accident, left Mescall totally disabled due to permanent head, vision and hearing injuries
  • cervical radiculitis radiating pain to both shoulders for years before and within a few months of the 2004 construction accident with positive tests for rotator cuff injuries and shoulder impingement syndrome

 Inside Information:

  • The jury was shown surveillance videotape of the plaintiff walking along a beach on a hot summer day. The defense claimed that it showed plaintiff walking, bending, lifting and talking on a cell phone without any indication plaintiff was in pain or had any difficulties. Plaintiff’s attorney said that the presentation of the video was a desperate act by which the defense sought a damages discount.
  • Plaintiff’s attorney asked the jurors to award $5,000,000 in pain and suffering damages ($2,000,000 past, $3,000,000 future). He also requested $500,000 in future loss of earnings and $4,700,000 in future medical expenses.