Construction Worker Awarded $15.29 Million After a Scaffolding Fall

Case Overview

Case Name: Joao Dias v. Blue Sea Construction, Co., New York City Housing Authority and Oceanhill, LLC

Case Types:

• Construction – Accidents; Labor Law; Scaffolds and Ladders
• Workplace – Workplace Safety
• Slips, Trips & Falls – Fall from Height

Injury:

• Back – fusion, lumbar; nerve impingement; spondylolisthesis; bulging disc, lumbar; herniated disc, lumbar; herniated disc at L5-S1
• Neck – fusion, cervical; nerve impingement; spondylolisthesis; bulging disc, cervical; herniated disc, cervical; herniated disc at C3-4; herniated disc, cervical; herniated disc at C4-5; herniated disc, cervical; herniated disc at C5-6; herniated disc, cervical; herniated disc at C6-7; herniated disc, cervical; herniated disc at C7-T1
• Elbow
• Other – bone graft; corpectomy; facetectomy; physical therapy; pins/rods/screws; hardware implanted; epidural injections; decreased range of motion; foraminotomy/foraminectomy
• Neurological – radiculopathy; nerve impingement
• Arterial/vascular – embolism
• Surgeries/treatment – discectomy; laminectomy; laminectomy, lumbar; decompression surgery
• Mental/psychological – anxiety; insomnia; depression
• Pulmonary/respiratory

Plaintiff Attorney: Lawrence P. Biondi; Law Offices of Lawrence P. Biondi

Defense Attorney: Anthony D. Martine; McMahon, Martine & Gallagher, LLP

Case Outcome: Verdict – Plaintiff

Award Amount: $15,228,000.00

What Happened?

A union carpenter, Joao Dias, fell off a scaffold work platform while working at a Brooklyn construction site in late 2014. The 50-year-old Dias says a plank fell from an overhead location and struck him. This caused the platform to shift and eject him to the floor eight feet below. The platform he was standing on consisted of three unsecured wooden planks with no protective railing. Mr. Dias suffered back, elbow, and neck injuries in the fall.

On the day of the accident, Joao received minor treatment at a hospital. This was the start of an onslaught of back and neck surgeries and treatments spanning three years. Dias worked for two weeks after the accident but has not worked since then.

Twelve weeks after the accident, Mr. Dias began a conservative treatment approach that included three epidural steroid painkiller injections, physical therapy, and two nerve block injections for pain.

Neck Surgery

These protocols and treatments did not begin to solve Joao’s back and neck problems. In October 2015, doctors performed a corpectomy on two cervical vertebrae in his neck. Cervical vertebrae support the head weight and enable a wide range of head movements. During the procedure, the surgical team excised portions of Dias’ C6 and C7 vertebrae, fused his spine’s C6-7 level, implanted two stabilizing screws, and applied a bony matter graft for stabilization.

Complicated Back Surgery

In June 2016, doctors operated on his lumbar vertebrae and the lumbosacral joint. The lumbar vertebrae reside in the lower back. L5 (5th lumbar vertebrae) joins with the sacral joint to form the lumbosacral joint.

In this second complex surgery, doctors performed seven different surgical procedures on his back. The first was a diskectomy to remove part of his herniated L4-5 disks that were causing irritation to nearby spinal nerves. Spinal disks are a soft material that acts as a cushion between vertebrae. Next came the facetectomy to remove facet joints of a vertebra to release pressure on Dias’ spinal nerve and reduce pain. Facets are bony protrusions on vertebrae connection points. Then the surgeon enlarged an area housing a spinal nerve to relieve pressure on the nerve (foraminotomy).

In the fourth procedure, a laminectomy, a surgeon removed part of the vertebral bone to reduce nerve pressure. Next, doctors fused Dias’ L4-L5 vertebrae. Hardware implantation and the addition of stabilizing bony grafts followed.

However, Joao’s ordeal was not over. After the second surgery, he was hospitalized for a blood clot (pulmonary embolism) and other complications.

Unending Nerve Pain

In April 2017, Mr. Dias’ pain was so severe that doctors implanted a device to stimulate his spinal nerves to try to relieve his pain. Joao maintained that the device was not effective.

Mr. Dias had another epidural injection for pain relief. With everything he had been through since the accident, Joao also underwent psychotherapy.

Allegations and Testimony

Joao Dias filed a personal injury lawsuit against Blue Sea Construction Corp., the construction project’s general contractor, the New York City Housing Authority which owned the premises, and Oceanhill, LLC, the tenant. In the filing, Mr. Dias alleged that the defendants negligently failed to provide him with a safe workplace and that their failure violated New York State Labor Law.

Hazardous Conditions

Plaintiff’s counsel contended that Dias’ accident at the construction site stemmed from an elevation-related hazard, as defined by Labor Law § 240(1). Joao’s lawyer also asserted that his client was not provided with the proper, safe equipment as required under the statute. Dias claimed that he was not given a safety harness or any other device that could have prevented his fall.

In addition, his lawyer maintained that the scaffolding platform should have had four rather than the three planks that comprised the scaffolding platform. Counsel added that the platform should have been protected by a railing.

The defense counsel asserted that the accident did not happen as Mr. Dias described. However, there were no witnesses to his fall – only a report that another worker heard the accident and saw Joao on the floor right after.

Injury Claims

Mr. Dias claimed he suffered multiple back, elbow, and neck injuries from the accident. First were the herniations of several of his disks: L2-3, L3-4, L4-5, L5-S1, C2, C3-4, C4-5, C5-6, C6-7, and C7-T1. Second, he stated he had suffered from radiculopathy from C5-6, C6-7, and L5-S1 impingement on his spinal nerves. Radiculopathy involves a range of symptoms that frequently include pain, weakness, numbness, and tingling.

Dias also claimed his L4 and L5 vertebrae developed spondylolisthesis – stress fractures in the thin bone segment that joins two vertebrae.

Additionally, he said he suffered an internal derangement of his right elbow in the accident. Flexion and extension of an elbow can be limited with this medical condition due to loose cartilage fracture material floating in the joint.

Mr. Dias further claimed that he suffered anxiety and depression from the pain of the accident injuries.

The judge granted the plaintiff’s motion for summary judgment of liability.

Damages Determined at Trial

During the trial, the jury evaluated Mr. Dias’ damage claims. Joao sought recovery of past and future medical expenses, damages for past and future pain and suffering, and past and future lost earnings.

Dias described his severe residual pain and post-accident range of motion limitations in his back and neck. Joao said his pain makes sleep difficult and that he can’t tolerate long periods of sitting. The effects on Joao’s body have left him largely housebound. He can no longer perform the type of work he did before the accident. Dias claimed that his condition will eventually require him to hire an aide.

Defense counsel contended that Dias’ injuries from the accident were only back and neck sprains and/or strains. Defendant’s counsel also asserted that any other injuries were degenerative conditions that predated the accident. In the defense’s view, Mr. Dias’ surgeries were partially due to his congenital conditions.

The defense reminded the jury that Dias worked during the weeks following the accident and asserted that Dias didn’t report an injury to his back or neck until after the fall.

Who Won the Case?

The jury awarded Joao Dias $15,228,000 in damages from the accident. The award included:

• $270,000 for past medical costs
• $500,000 for future medical costs (22 years)
• $1,500,000 for past pain and suffering
• $10,000,000 for future pain and suffering (22 years)
• $1,100,000 for future custodial care costs (22 years)
• $358,000 for past lost earnings capability
• $1,500,000 future lost earnings (eight years)

Key Takeaways

The Dias case reminds plaintiffs’ counsel that juries will see through defense claims that a plaintiff had pre-existing conditions, and that those conditions should limit a defendant’s accountability. It’s easy for defense counsel to make these claims but not so easy to convince a jury. Here, the jury clearly did not buy any of the evidence or expert opinions the defense offered on their claims of pre-existing and congenital conditions.