August 23rd, 2011

Earthquakes and Labor Laws (Sometimes, government works)

I was in my office on the 17th floor when I felt the building start to sway. I wasn’t a happy camper.

Quickly jumping on Twitter I saw I was not alone, and within a minute or two I knew that today’s earthquake was up and down the east coast. Then I waited for the damage reports. The injured. The dead. The collapsed buildings. I wasn’t alone. Mayor Bloomberg put out a statement that read, in part, “our thoughts in New York are with those who were more directly affected by this natural disaster.”

A 5.8 quake may not be too much of a big deal if you live in a quake zone and your buildings are designed for it, but we aren’t known for moving the earth in such fashion. And so we waited for the information to come in.

And you know what? Nothing happened. There was no disaster.

Why? I’ll tell you. We have pretty good building codes and labor laws. We have people that enforce them. That’s our tax dollars at work, and working properly.

And I mention labor laws because they go hand in hand with building codes. One is designed for building safety and the other for worker safety. If builders think they can skimp on one if the laws are lax, then they probably think they can skimp on others. But they can’t. Skimping ain’t allowed.

Each year I go to Albany to lobby the legislature and each year our labor laws are fought against tooth and nail by construction companies looking to skimp on the safety of our laborers. We have strict liability here in New York if a company doesn’t provide proper safety to the workers and the workers are hurt. And we therefore have few accidents relative to the size of the city. If it ain’t broke, goes the old saying, don’t fix it.

Today we saw government work. And we saw our safety laws work. In a day and age when screaming about slashing the budgets and laws is a popular topic, it’s something to think about.

January 20th, 2011

An “Elective” Amputation?

The stories are legion of frivolous claims brought by plaintiffs. And one of the things I should be doing more of, is showing that defense lawyers are capable of equally frivolous conduct. Today will be one of those days.

In this labor law case decided today (Cullen v. Makely) by the Appellate Division (Third Department), a scaffold collapses and a laborer’s leg gets crushed and needs to be amputated. The guy sues the owner of the property. The property owner then turns around and brings a third party action against the guy’s employer for indemnification (if we lose, you give us the money back, because you’re the ones that rigged the bum scaffold). The owner (defendant) makes a motion for summary judgment on that issue against the employer (third party defendant).

In order to prevail on this indemnification claim, however, the property owner must prove a “grave injury” under our Worker’s Compensation law, which as it happens, includes “amputation of an arm, leg, hand or foot.” Pretty clear cut, right? Especially since it was supported “plaintiff’s medical records and an affidavit from his treating physician who opined, with a reasonable degree of medical certainty, that the amputation he performed was due to plaintiff’s chronic pain and disability primarily resulting from his work-related traumatic accident, superimposed on a childhood injury.”

Rather than concede defeat, the poor defense lawyer raises this defense: The amputation was elective. Really. S/he did do that. Don’t take my word for it though, listen to the court:

In response, third-party defendants relied upon their attorney’s affidavit alleging that the amputation was elective and was not caused by the work accident, but was necessary because of plaintiff’s prior leg injuries arising from an accident approximately 30 years earlier when, at the age of five, he was run over by a truck. That affidavit, which lacked any competent medical evidence and contained only unsupported allegations in an attempt to create issues of fact, was insufficient to rebut the medical opinion of plaintiff’s physician.

Is there anyone in this world who thinks a construction worker would electively have his own leg amputated? Or that any doctors would violate their Hippocratic Oath in order to do it? (OK, maybe this one, but I mean normal doctors.)

What’s really amazing is that after the third-party defendant, the employer, lost in the court below, someone actually thought they could prevail on an appeal.

December 22nd, 2010

New York Jury Returns $50.5M Verdict For Brain Injured, Paralyzed Scaffold Worker

David Golomb, plaintiff's lead counsel

Late Tuesday afternoon, a New York jury returned a blockbuster $50.5 million verdict for a brain injured, paralyzed scaffold worker. Daniel Savillo, who was 29-years-old on the date of the accident, had mis-stepped and fallen while working on a 15-foot high scaffold storage platform on February 12, 2007.

Since the owner and chief foreman had admitted that there was no fall protection provided to workers, Justice Emily Jane Goodman granted summary judgment in favor of Mr. Savillo in September of this year. That determination came in accordance with New York’s Labor Law. As Justice Goodman wrote:

Because Labor Law § 240 (1) “imposes absolute liability on owners who fail to provide adequate safety devices to workers laboring at elevated work sites, when that failure is a proximate cause of the workers’ injuries” , and because Greenpoint Landing provided no safety devices and that failure was a proximate cause of plaintiff’s injuries, that part of plaintiff’s motion which seeks summary judgment on the issue of Greenpoint Landing’s liability under Labor Law § 240 (1) is granted

With respect to the employer, All-Safe, Justice Goodman added in a footnote:

Given All-Safe’s complete disregard for safety (discussed infra), the name of this company strikes this Court as very ironic.

The nine-day trial before Justice Goodman in Manhattan (who also blogs for the Huffington Post) was, therefore, only to assess the amount of damages.

Prior to the trial, the plaintiff had rejected a settlement offer of $8.125M, holding firm in a demand for $14.5M. Given the breathtaking jury verdict, as well as the huge settlement offer that had been rejected, it’s worth taking a closer look at the verdict and damages.

As a result of the fall, Mr. Savillo suffered a complete cord injury at level T11 and had no sensation below an inch below his umbilicus. He had spinal surgery, screws, rods and cross-pieces placed in his back extending from from T7 to L2.

One of the many custom made exhibits used at trial

He also suffered significant brain contusions and hemorrhages, though no surgery was done on the brain. Evidence was presented of traumatic brain injury, with significant cognitive deficits, particularly in mental flexibility, information retrieval, processing speed, visual memory, short-term memory. He is unable to do more than a single task at one time. The progression of the brain damage can be seen from this exhibit that was used at trial (click to enlarge).

Other injuries consisted of a n eurogenic bladder and bowel. This forces him to self-catheterize six to eight times each day for urination, and to manually evacuate stool after inserting suppositories on a daily basis.

The $50.5M jury award was broken down as follows:

Past medicals expenses, approximately $600k;
Past lost earnings, $200K;
Past lost fringe benefits, approximately $50k
A life care plan demonstrated over $9.224M for future medical care;
Lost earnings and fringe benefits were approximately $5.6M;
Past pain and suffering was $10M; and
Future pain and suffering was $25M

The jury was unanimous in its determination. And of particular note, two of the jurors were lawyers. One was a fourth year tax associate at a major firm and the other works for the City of New York defending civil rights cases.

The plaintiffs called as expert witnesses: a neuroradiologist regarding the films, a rehabilitation expert, the neurosurgeon who repaired the spine an economist, and a vocational rehabilitation expert. The defendants conducted five separate defense medical exams, but didn’t bother to call three of the people that did exams (neurosurgeon, orthopedist and wound care surgeon). The plaintiff also called the defendants’ own rehabilitation expert on his own case, since his report was so devastating to the defendants.

The defendants called a neuropsychologist and an economist.

All of which is to say, that there were a lot of witnesses in a short amount of time.

A final word on the numbers. The jury total is about $50.5M. To that gets added interest, at a 9% annual rate, from the date that summary judgment was granted in September. From that gets subtracted certain things too. For example, the future economic costs must be reduced to present value at a later proceeding pursuant to CPLR 50-B. In addition, there may be a set-off for Social Security Disability payments that have been made, and with reasonable certainty will continue to be made going forward under CPLR 4545.

One can also assume that the pain and suffering verdicts will be challenged as excessive. How New York courts go about reducing (or increasing) verdicts from time to time was the subject of one of the first posts on this blog: How New York Caps Personal Injury Damages.

In other words, while the headlines will scream $50M, as this one does, the reality will one day be something else. And it will take quite a bit of lawyering to figure out what that will be.

The stars seemed aligned for a mega-verdict here, given the catastrophic injuries, that liability was already determined, that 9% interest would be running on any verdict (thus giving a comfort level to the plaintiff regarding the potential for defendants dragging out the litigation), that numerous experts were lined up and ready to go, that defendants had a fear of their own experts, and that an experienced trial lawyer was ready to take the verdict.

The case was Daniel Savillo v. Greenpoint Landing Associates, LLC (landowner) v. All Safe Heights Contracting Corp. (scaffolding co., employer). The plaintiff here sued the landowner, who turned around and sued the employer. In New York, those who are injured on the job generally can’t sue their employers under the Workers Compensation Law.

Plaintiff’s counsel was David Golomb, who is a past president of the New York State Trial Lawyers Association and a frequent lecturer on medical malpractice (and who I’ve known for many years). He is also a founder of Trial Lawyers Care, the massive pro bono effort put forward by the nation’s trial lawyers in response to the September 11 attack and the establishment of the September 11 Victim Compensation Fund. He was assisted at trial by Roy Jaghab, of Jaghab, Jaghab & Jaghab.

Greenpoint’s attorney was Edward Lomena.

All Safe’s attorneys were Scott Miller and Michael Manarel.

December 28th, 2009

NY Labor Law: What Is an "Elevation Related Injury"?

The Second Circuit Court of Appeals needed to know what, exactly, an “elevation related injury” was and sent the question to New York’s high court for interpretation.

The issue in Runner v. New York Stock Exchange arose when workers were asked to lower an 800 pound reel of wire down four stairs. This was attempted by attaching a rope to the giant spool and wrapping it around a metal bar set against a door jam. The rope was then held by the plaintiff and another to act as a counterweight as the giant reel was lowered.

Want to guess what happened? The plaintiff was drawn into the bar by the huge weight and injured.

Enter here, New York’s Labor Law section 240(1) (also known as the Scaffold Law) which holds contractors and owners 100% liable to workers from gravity related injuries when proper safety devices are not made available to them. These suits usually arise from people falling from heights or an object falling from a height and hitting the worker. But in this case, the worker didn’t fall, and nothing fell on him. Rather, the item he was trying to lower fell at an uncontrolled rate.

The federal jury dumped the plaintiff, after being instructed that that “liability pursuant to Labor Law 240 (1) could not be assigned unless plaintiff’s injuries had been attributable to a gravity-related risk.” They found that this was not a gravity related risk.

The District Court disagreed, and tossed the verdict. The defendants appealed and the Second Circuit wasn’t clear on the answer, and therefore certified these two questions to New York’s Court of Appeals:

I. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into the pulley mechanism after a heavy object on the other side of a pulley rapidly descends a small set of stairs, causing an injury to plaintiff’s hand, is the injury (a) an elevation related injury, and (b) directly caused by the effects of gravity, such that section 240 (1) of New York’s Labor Law applies?

II. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liability exist under section 240 (1) of New York’s Labor Law?

New York’s Court of Appeals answered the first question 10 days ago with a “yes,” and re-cast the actual issue:

The relevant inquiry — one which may be answered in the affirmative even in situations where the object does not fall on the worker — is rather whether the harm flows directly from the application of the force of gravity to the object.

While the defense argued that 4 stairs made the elevation de minimis, the court said otherwise “given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent.”

This also rendered the second question — of whether the injury must come from either a falling worker or falling object — moot.

Why is the issue important? (You didn’t think I would simply digest the case, did you?) New York’s Labor Law holds many contractors and owners strictly responsible for injuries when they don’t provide proper safety devices in such circumstances. There are, of course, exceptions to the rule such as recalcitrant workers and times when the worker was the sole proximate cause for the accident, as well as for owners of smaller dwellings. (See Blake v.Neighborhood Housing Services of NYC, which has a history of the law.)

But as a result of the laws, New York has a rather safe construction trade relative to other states. Because so much of the onus is placed on the contractors and owners, the Labor Law is under constant assault from big business. Safety, however, must come first in construction. Particularly since so many of the workers are immigrants or others similarly situated that aren’t in position to demand safety equipment, or to produce the witnesses after an accident. Co-workers, oddly enough, tend to see things in the light most favorable to their job security when their own jobs may be on the line.

Thus, the need for the strict Labor Laws, and the need for the courts to interpret them fairly. In recent years, decisions from our top court seem to have been more defense oriented, as you can see from this article from the Wilson Elser firm, which does defense work.

In this case, however, the NY Court of Appeals seems to have reversed that trend of limiting the scope of the Labor Law protections. And that is good news for those that care about worker protections.

Other takes on the case:

Construction Accident Liability Clarified By Court of Appeals In Runner v. New York Stock Exchange (Kreppein @ Dissent of Man)

New York Court of Appeals Finds Gap in Labor Law Case Law To Justify Recent Holding (Lerner @ New York Civil Law)

August 23rd, 2007

Injured New York Illegal Immigrant Can Sue

You can’t have it both ways. So says a New York judge in ruling that an undocumented alien can sue after an accident left him paralyzed, according to a New York Daily News story. If you want them on the work site because they are cheap labor, then a duty is owed to the worker to follow appropriate safety practices.

The plaintiff had previously been accorded summary judgment in this decision:
GomezSJ.pdf.

Related story: Court Nominee Withdraws Over Illegal Alien Claim (ABAJournal)