Rey Espinal was a healthy, active 36 year old laborer on June 8, 2005  when he was working at a warehouse in the Bronx installing a tall rolling door gate. He fell off a ladder about 14 feet to the ground below.

It’s dangerous to be working up on a ladder:


Mr. Espinal was unable to work for 3 1/2 years because of elbow injuries he sustained in the fall. And when he returned to work it was at a physically easier job with about half the salary.

The ensuing lawsuit, Espinal v. 1157 East 156th Street LLC (Supreme Court, Bronx County; Index # 20189/05), came to trial in May 2010. The judge granted plaintiff a directed verdict on liability (finding that the property owner and general contractor were liable under New York’s Labor Laws for their failure to provide a safe place to work).

In the damages phase of the trial, the jury heard evidence from doctors that Mr. Espinal had suffered a displaced intra-articular fracture of the radial head as well as ulnar nerve entrapment.

Here is what an intra-articular fracture of the radial head looks like:


He underwent two surgeries: a right elbow arthroscopy with lysis and resection of adhesions and a year later a radial head resection.

After the first surgery, Mr. Espinal was left with a malunion – meaning that while the bone grew solidly it grew in a malunited way, longer on the top and tilted back. Flexion attempts were blocked. In the second surgery – the resection – a portion of the bone was removed.

Unfortunately, Mr. Espinal continued to have a significant loss of range of motion because of continuing malunion and he still has limited pronation, supination, flexion and extension. His prognosis is poor, he’s likely to have arthritis in the elbow joint and the only surgery that might relieve arthritic pain and limitations would be a joint replacement.

Here is a typical elbow joint replacement:

The jury awarded pain and suffering damages in the sum of $2,250,000 ($750,000 past – 5 years, $1,500,000 future – 20 years). They also awarded $1,250,000 for lost earnings, $670,000 for medical expenses and $200,000 for loss of consortium – grand total of $4,370,000.

The case then settled for $1,650,000 pursuant to a high-low agreement that the parties executed just before trial began. Since the insurance coverage for this accident was limited to $2,000,000 and it appeared clear to the parties that plaintiff would win on liability (after the evidence came in, the judge would not even let the jury consider liability and he directed a verdict in plaintiff’s favor), the high-low agreement appears to have been a smart move on the part of both sides. As a practical matter, plaintiff was unlikely to collect anything more than $2,000,000 no matter how high the verdict and the defendants thus limited any exposure to themselves in excess of their coverage.

The $2,250,000 jury award for pain and suffering was probably more than an appellate court would have sustained in view of Park v. City of New York (1st Dept. 2010), an elbow fracture case we discussed, here, in which a Manhattan jury awarded a 36 year old plaintiff pain and suffering damages in the sum of $2,300,000. The award to Mr. Park was reduced by the trial judge to $1,400,000 and then the appellate court reduced it even further – to $1,000,000.

 Inside Information: