On August 24, 2006, Eric Berrios was a union carpenter working on an 80-story condominium construction project at 735 Avenue of the Americas in Manhattan. He was on the second floor deck, on top of a scaffold, cutting wood and laying out plywood when he fell 20 feet below onto a concrete slab.
Berrios was helped up by co-workers who took him by taxi to a local hospital where he complained of pain in his back.
His pain continued, he was unable to return to work and Berrios sued the project owner under Labor Law 241(6). He was granted summary judgment on the issue of liability and the matter proceeded to a trial on damages only in February 2011.
The jury awarded plaintiff pain and suffering damages in the sum of $600,000 ($375,000 past – five years, $225,000 future – three years). The award has been affirmed in Berrios v. 735 Avenue of the Americas, LLC (1st Dept. 2013).
Here are the details of plaintiff’s injuries:
- treated and released from emergency room with crutches and pain medication
- next sought medical care about two weeks later at a clinic where he was prescribed a doughnut to sit on to alleviate pain and a back brace
- treated for two years at clinic with physical therapy three times a week
- trigger point injections once a month; epidural steroid injections
- herniated discs at C-5 and C-6
- bulging discs in lower back at L3-L5
- displaced right coccyx fracture at the sacrococcygeal joint line
- compression fracture at L-1
Berrios testified that he was in constant pain and could not:
- sit for long periods of time
- turn his head without pain in his neck
- return to recreational football or basketball
- lift heavy objects
Plaintiff’s treating physiatrist, Ali Guy, M.D., testified that plaintiff’s injures were permanent and progressive with traumatic arthritis of the spine already present. The defense medical experts, orthopedic surgeon Maurice Carter, M.D. and neurologist Jerome Block, M.D., testified that plaintiff had healed well and had no residual injuries from the accident and he could still be employed as a carpenter (in “less arduous tasks”).
In addition to pain and suffering damages, the jury awarded (and the appellate court affirmed) damages for loss of earnings in the sum of $600,000 ($225,000 past – five years, $375,000 future – three years). Plaintiff had been earning about $75,000 a year before the accident and sought over $5 million for future lost earnings based on his inability to work for the next 28 years. He argued, unsuccessfully, that the jury’s earnings award was irrational because it amounted to $45,000 per year until 2011 and then $125,000 per year thereafter. The jurors apparently agreed with defense arguments that plaintiff could return to work as a carpenter in certain capacities and would be able to earn significant wages over the years.
- The defendant disputed plaintiff’s claim that he fell over 20 feet onto concrete. There was a statement in the emergency room record that Berrios fell feet first onto a wooden box and then fell onto the concrete floor on his back. Plaintiff denied making such a statement but the trial judge allowed this evidence in and the appellate court affirmed agreeing with the defense that the hospital record statement was “germane to his [plaintiff’s] medical diagnosis or treatment.”
- Experts in vocational rehabilitation and economics testified for plaintiff and opined that his future medical expenses related to the accident would exceed $1.3 million based on present rates. The jury awarded nothing at all for future medical expenses, apparently agreeing with the defense experts that plaintiff had recovered well and needed no medical treatment in the future related to the accident. Past medical expenses (i.e., from the date of the accident to the date of trial) were agreed upon in the sum of $32,131.
- In his summation, defense counsel argued that Berrios should be awarded at most $20,000 for one year of pain and suffering.