On April 14, 2009, Robert McCullough was working as an ironworker at the One Bryant Park, Manhattan construction site when he tripped and fell after stepping into an uncovered drain hole. He claimed serious ankle injuries and sued the owner and general contractor claiming that their violations of the Labor Law caused his injuries.
A Manhattan jury determined that the defendants were at fault and awarded plaintiff pain and suffering damages in the sum of $1,750,000 ($1,000,000 past – eight years, $750,000 future – 25 years). Defendants appealed, arguing, among other things, that the damages awards were excessive.
In McCullough v. One Bryant Park (1st Dept. 2020), the court affirmed both the liability verdict and the pain and suffering damages awards.
Here are the injury details:
- anterior talofibular ligaments torn (a) completely in right ankle and (b) partially in left ankle
- right ankle surgery #1 on 12/21/09 – modified Brostrom procedure to repair ligament
- right ankle open surgery #2 on 10/10/11 – sutured ligament, motorized chondroplasty
- never ending and worsening right ankle pain and instability, eventually (after surgery) diagnosed as permanent and progressive reflex sympathy dystrophy (now better known as complex regional pain syndrome) and progressive and debilitating arthritis
- unable to work or even stand more than 15 minutes without pain, swelling and intense burning sensations
Plaintiff was also awarded loss of earnings damages of approximately $2,000,000 ($700,000 past, $1,300,000 future) and future medical expenses in the sum of $99,000.
Plaintiff, then 45 years old, presented to the on-site medical clinic on the day of the accident where he was treated with an ice pack and ace bandages. His first medical treatment thereafter was with a podiatrist a month later. He followed up with the podiatrist, took prescribed pain medications and underwent physical therapy while continuing to work (in pain) until 9/25/09 (shortly before his first surgery).
- The jury found that plaintiff was 5% comparatively at fault for his accident.
- Plaintiff adduced testimony from his treating podiatrist and orthopedic surgeon; the defense had plaintiff examined by two physicians before trial but adduced testimony only from an expert radiologist.
- Plaintiff has an undergraduate degree in physics and a masters degree in computer engineering.