On August 18, 2004, Burnett Williams was working for a lead abatement contractor at the 170th Street subway station in the Bronx. He was inspecting lead as old steel was being removed in connection with demolition and construction at the station and was injured when he stepped on and fell through temporary plywood flooring and his buttocks and back landed on a steel girding beneath the flooring.

Williams, then 56 years old, claimed that the accident aggravated prior back injuries that had been quiescent but now required surgery.

His ensuing lawsuit against the subway operator and general contractor (the City of New York and the Metropolitan Transit Authority) resulted in summary judgment for plaintiff under the provisions of Labor Law 240(1) and 241(6) because the flooring constituted  a hazardous opening that was not guarded by a cover fastened in place and plaintiff was not provided any device to protect against this height related injury.

The matter then proceeded to a trial on damages only that resulted in a verdict on June 24, 2010. The Bronx County jury found that the accident aggravated plaintiff’s condition and that he was therefore entitled to pain and suffering damages in the sum of $3,200,000 ($1,200,000 past – six years, $2,000,000 future – 15 years).

On appeal, in Williams v. City of New York (1st Dept. 2013), the award for future pain and suffering damages has been reduced by $800,000.

Two years before the accident, in 2002, Williams started experiencing low back pain. In May 2003, doctors diagnosed a herniated disc at L4-L5 that produced L5 radiculopathy.  A month later, the pain was so bad Williams stopped working for six months. After physical therapy and a series of epidural steroid injections, Williams was getting better and he returned to work in September 2003.

Williams continued to work full time (albeit with some back pain) from September 2003 until his accident on August 18, 2004. Although he finished his work day (in great pain), Williams never again returned to any type of employment. His back pain got worse and worse and on March 1, 2005 he underwent lumbar discectomy in which his then larger than ever L4-L5 herniated disc was surgically removed.

Lumbar Discectomy:

While his radiating leg pain and weakness improved, his back pain returned. Pain management was attempted, unsuccessfully, with injections and intradiscal electrothermal therapy (IDET – an invasive procedure in which a catheter is threaded through a needle into the lumbar disc to heat it for 15-20 minutes).

A provocative discogram and lumbar fusion surgery were performed in 2007.

At trial, Williams told the jurors that his leg pain was much relieved and his back pain was somewhat relieved: “I have good days [four times a week] and bad days.” Good days meant he could walk outside, do some light shopping and run some errands. Bad days meant he woke up in pain that was so bad it lasted all day and he could do little more than lie on the floor wishing he were dead.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $1,500,000 for past pain and suffering plus $2,250,000 for the future. Defense counsel argued that plaintiff’s condition was exacerbated only minimally as a result of the subject accident and that after the fusion surgery he returned to his pre-accident condition. Therefore, she asked that any award for past pain and suffering be “minimal” and that there be no award at all for the future.
  • Defendant’s pre-trial offer to settle was $125,000 while plaintiff’s demand was $3,000,000.
  • The defense argued that the jury’s award of $115,000 for future medical expenses was grossly excessive because after plaintiff’s fusion surgery in 2007 doctors had not recommended any significant additional treatment or surgery. The appellate judges apparently agreed in part when they ordered a $45,000 reduction of the future medical expenses award.