On May 23, 2013, Jean Henriquez-Rodriguez fell from a wobbly ladder at an apartment building construction project at 1949 Adam Clayton Boulevard in Manhattan. He was employed by a contractor and had been reaching overhead to spread compound on an apartment ceiling.
Mr. Henriquez-Rodriguez, then 28 years old, was taken to the local emergency room complaining of severe back pain where he was given pain medication and released that day. He sued the building’s owner under the provisions of the Labor Law that require an owner to provide safety devices to protect construction site workers from injuries when working at elevated sites.
The trial judge directed a liability verdict in plaintiff’s favor and then the Bronx County jury awarded plaintiff pain and suffering damages in the sum of $2,050,000 ($550,000 past – six years, $1,500,000 future – 47 years). In Henriquez-Rodriguez v. 160 West 118th Street Corp. (1st Dept. 2021), the pain and suffering damages award was affirmed.
Here are the injury details:
- bulging discs at L4-5 and L5-S1 impinging on nerve roots with radiating pain requiring extensive therapy and two epidural steroid injections
- scaphoid fracture of right (dominant) wrist requiring two surgeries – on 1/26/15, open reduction with repair of scaphoid nonunion distal radius bone graft and on 4/11/16, scaphoid excision, four corners fusion of wrist and neurectomy
- constant and permanent pain and limitations of ranges of motion requiring braces, ongoing pain medications and treatment and likely requiring additional wrist surgery
- unable to work at all and significant restrictions in activities of daily living
The defendant contended that plaintiff did not sustain any wrist injury in the accident, noting that he did not mention any wrist pain on the day of the accident either at the scene or at the hospital and the next medical treatment he underwent was not until three months later when he went to a chiropractor mainly for his back pain. Plaintiff countered that there was a language barrier at the hospital (he spoke Spanish and was not understood) and the scaphoid bone is so small that fractures can easily be missed early on. Furthermore, medical experts agreed that fractures of the scaphoid bone typically occur when someone extends his arm out in a fall (as plaintiff did here).
The jury awarded plaintiff loss of earnings damages in the sum of $1,081,000 ($202,000 past – six years, $879,000 future – 20 years); however, the appellate court reduced the award to $554,000 ($102,000 past, $452,000 future).
Plaintiff requested an additional $1,634,000 for various future medical and related costs; however, the jury awarded only $362,000 (mainly for therapy). There was no appeal related to this aspect of damages.
- Plaintiff’s testifying physicians included his surgeon and his pain management doctor. He also presented a life care planner. Defendant’s sole damages expert was an orthopedic surgeon who did not comment upon plaintiff’s back injury claim or his claimed inability to return to any employment.
- In his summation, plaintiff’s attorney asked the jury to award the $550,000 they did award for past pain and suffering damages; however, his future pain and suffering damages request of $4,700,000 was met with an award of $1,500,000.