On May 4, 2004, John Mescall, a 42 year old construction worker, was standing on top of a building’s exterior canopy when a crane dropped a 25 by 25 foot steel mesh causing it to fall 20 feet in the air and strike Mescall between his neck and shoulder.

Here is the Ironworkers Building at 37-31 30th Street in Long Island City, where this accident took place:

Mescall was taken to the local hospital complaining of of shoulder pain. He was diagnosed with fractures of his left clavicle, T-1 and T-2 transverse processes and first though third ribs on his left side and treated with pain medications and a sling.

A transverse process is a bony protrusion from the back of a vertebrae:

Mescall claimed the accident also caused head, neck, back, ankle and shoulder injuries which required four surgeries (including ankle tendon repair in 2006, shoulder arthroscopies in 2007and cervical fusion surgery at C5-6 in 2009) and left him with unable to return to work.

Ankle tendons attach muscles of the lower leg to the ankle and foot:

In his ensuing lawsuit under Labor Law Section 240, Mescall was granted summary judgment on liability and the matter proceeded to a trial on damages only.

On October 14, 2012, a Manhattan jury awarded plaintiff pain and suffering damages in the sum of $25,000 (past only – 6 1/2 years).

The jury also awarded $124,000 in past medial expenses (an amount the parties had agreed upon), $90,000 in lost earnings and $200,000 in future medical expenses (27 years).

On appeal, plaintiff argued that the pain and suffering award was inadequate and, in view of the fact that the jury awarded $200,000 for his future medical expenses, inconsistent in that he should have been awarded damages for future pain and suffering.

In Mescall v. Structure-Tone, Inc. (1st Dept. 2012), the all of the damages awards were affirmed.

As indicated in the court’s decision, the jury had evidence before it from which it was reasonable to conclude that most of Mescall’s injuries pre-existed this accident and that the others (fractured clavicle, vertebra and ribs) had healed.

The evidence relating to plaintiff’s pre-existing injuries included several accidents and lawsuits in which Mescall made claims of injury and received diagnoses as follows:

  • 1989 work-related accident resulting in disc herniation at L4-5
  • 1994 trip and fall accident  which he  claimed caused permanent injuries to his neck, back and knee with an ultimate diagnosis of lumbar radiculopathy and a recommendation for epidural steroid injections
  • aerial lift accident on July 4, 2000 in which Mescall was struck on the side of his head and which, according to his doctor’s report just four months before the May 4, 2004 construction accident, left Mescall totally disabled due to permanent head, vision and hearing injuries
  • cervical radiculitis radiating pain to both shoulders for years before and within a few months of the 2004 construction accident with positive tests for rotator cuff injuries and shoulder impingement syndrome

 Inside Information:

  • The jury was shown surveillance videotape of the plaintiff walking along a beach on a hot summer day. The defense claimed that it showed plaintiff walking, bending, lifting and talking on a cell phone without any indication plaintiff was in pain or had any difficulties. Plaintiff’s attorney said that the presentation of the video was a desperate act by which the defense sought a damages discount.
  • Plaintiff’s attorney asked the jurors to award $5,000,000 in pain and suffering damages ($2,000,000 past, $3,000,000 future). He also requested $500,000 in future loss of earnings and $4,700,000 in future medical expenses.

Gerald Phillipps was 84 years old on January 17, 2007 when he took a city bus down Fifth Avenue in Manhattan. As the bus came to his stop and he stood up to leave, the bus suddenly lurched forward and Mr. Phillipps was thrown onto his back on the floor of the bus, sustaining fractures of his fourth through ninth ribs.

Fractured ribs are typically among the most painful traumatic injuries but they usually heal well without operative intervention:

Unfortunately for Mr. Phillipps, his ribs did not heal well. In his ensuing lawsuit against the bus line, a Manhattan jury found that the city bus driver was negligent and that Phillipps was entitled to a pain and suffering award of $600,000 ($300,000 past – 3 years, $300,000 future – 4.8 years).

The transit authority argued that the accident described by Mr. Phillipps simply did not take place. There were several facts to support the defense:

  • no one reported the accident until two months later
  • after he was helped up from the floor of the bus Mr. Phillipps walked out on his own and went to his intended destination where he stayed for a short while and then called a cab to go to the emergency room at NYU Medial Center
  • Phillipps used a cane to walk for years before the accident, due to an old hip fracture that left one leg shorter than the other and, for many years, he had been on medication to prevent low blood pressure (which can cause dizziness and falls)
  • plaintiff produced no eyewitnesses and he didn’t even know which bus he was on or what the driver looked like (having said nothing to the driver after the fall)

Apparently thinking that it would cast plaintiff in a bad light, defense counsel also noted where Mr. Phillipps went when he left the bus – a strip club known as Rick’s Cabaret:

The defense argued that plaintiff had a weak case:

  1. on liability (there was no corroborating witness) and
  2. on damages (arguing that plaintiff had other, more serious, pre-existing injuries and in any event healed well from the rib fractures)

As to the strip club, plaintiff’s counsel countered that his client was a lonely widower seeking companionship who testified honestly and that this issue is "entirely irrelevant … unless you want to punish him for immorality."

Clearly, the six-woman jury believed plaintiff’s version of the accident and was not disturbed about his intended destination. Their $600,000 verdict for the plaintiff has now been upheld on appeal in Phillipps v. New York City Transit Authority (1st Dept. 2011); however the court’s decision left out any mention at all of the injuries.

Our research team has uncovered the injury details:

  • hospital admission for the ensuing seven days with extensive narcotic medication, including Oxycontin, that continued for nine months until discontinued in favor of four times a day Excedrin and nightly sleeping pills
  • apical pneumothorax (punctured lung) with pleural effusion (fluid in the lungs)
  • bedridden for one month at home with 24-hour nursing care
  • displaced rib fractures that failed to fully heal (i.e., they were not in anatomic alignment) or did so only with deformities (i.e., with scar or fibrous tissue, not bone)
  • shortness of breath and pain on deep breathing or coughing
  • spasms in the rhomboid muscles that were objectively diagnosed, are permanent and cause constant pain

Plaintiff testified credibly that, before the accident, he had been able to walk, stand and take the bus without difficulty and he often did so attending social functions throughout the city.

Now, though, as a result of his injuries and constant pain he:

  • needs a four-wheeled walker for support (rather than just a cane)
  • is unable to sit or stand for lengthy periods
  • is unable to walk distances he used to
  • has breathlessness and wheezing he never had before
  • can no longer climb in and out of his bathtub and showers sitting on a bench
  • spends most of his time at home lying down in bed with a special wedge pillow

 Inside Information:

  • The defense never made an offer to settle despite the fact that, as insiders tell me, this case could have been settled before trial for about $100,000.
  • During the trial, defense counsel requested that the case be postponed because an orthopedist he had planned to call as an expert, Serge Parisien, M.D., had fallen and injured his back and was thus unavailable for seven weeks. The judge denied the request and the only orthopedist to testify was plaintiff’s expert, William Kulak, M.D., who opined that plaintiff’s pain and limitations are permanent and will not improve (transcript here).
  • The NYU Medical Center records were in evidence but defense counsel argued that the jury should not see the entries that recorded what plaintiff stated when he arrived at the hospital  regarding the mechanism of his injury – that when he stood up to get off the bus at his stop he fell on his back secondary to the unsteadiness of the bus. Both the trial judge and the appellate panel rejected this defense argument and ruled that the entries were relevant to diagnosis and treatment and properly viewed by the jurors.
  • Mr. Phillipps is a Holocaust survivor whose history was recently recorded for posterity, as discussed here.

In view of the absence of witnesses and what appeared to be relatively insignificant injuries, the result in this case was not predictable. Add to that an earlier motion and appeal regarding the sufficiency of the notice of claim (a pre-lawsuit filing required in cases again municipalities), credit should be given to plaintiff’s counsel, Alan M. Greenberg, a well known and widely respected advocate, another of whose prior cases with an outstanding result we discussed, here.