At the time of the accident, the plaintiff was erecting Sheetrock in a stairwell at Bowlmor Lanes, a bowling alley located in the city of New York. The plaintiff claimed that he was standing on the ladder section of a six-foot-high Baker’s Scaffold erected by his employer, John Malarbe Inc., who was not a party to the action. The ladder was placed on an unfinished staircase at the defendant’s premises.
The plaintiff claimed that he fell 15 to 20 feet. However, testimony solicited at his deposition established that at the time of his fall, his feet were no more than three feet off the ground.
In June of 2006 Judge Lehner granted the plaintiff’s motion for summary judgment under Labor Law 240, which holds an owner strictly liable when a construction worker is injured as a result of a height-related accident. The trial was only on damages.
Injuries/Damages
The plaintiff alleged several injuries, including a head injury resulting in a left hemisensory deficit, blurry vision to the left eye, and a dislocated shoulder necessitating an arthroscopic procedure to stabilize the left shoulder in June of 2007; herniation to his neck; aggravation of a degenerative condition affecting his lower back; and an injury to his left knee necessitating an arthroscopic procedure in August of 2006.
As a result of the alleged injuries, Walsh underwent treatment with many doctors, including a neurologist and four orthopedists, and underwent many sessions of chiropractic and physical therapy treatment between 2001 and the present time.
At trial, through the testimony of the defendant’s expert doctors and through admission elicited from plaintiff’s experts, the defendants established that the plaintiff’s complaints of pain could not be substantiated. Specifically, his claim of a head injury and blurry vision were easily attacked since the MRI of his head was found to be normal.
The plaintiff’s attorneys, in an effort to explain away his head injury, tried to argue that the injury was resolved within a year. However, the plaintiff’s neurologist, who had diagnosed the plaintiff with a left hemisensory deficit in 2006 due to the head injury, maintained at the time of trial that the plaintiff continued to suffer from the condition.
As for the plaintiff’s claims of radiculopathy of the cervical and lumbar spine, admissions were made by the plaintiff’s neurologist that the MRI films taken of the plaintiff’s cervical and lumbar spine in 2001, 2005, and 2007 showed no evidence of compression of any nerve. In fact, the plaintiff, who was admitted to Lenox Hill Hospital in June of 2007 for complaints of radiating pain and a dropped foot, was discharged the following day when the MRI of his lower back showed no evidence of nerve compression.
His treating physician, orthopedic surgeon Dr. David Matusz, who was subpoenaed to testify on behalf of the defendant, admitted that there was nothing to substantiate his complaints of pain. Dr. Matusz also revealed that many of the plaintiff’s complaints of pain were correlated to poor diet, lack of exercise, and the pending lawsuit.
As for the surgery to his left shoulder and left knee, it was established that there was no evidence that the plaintiff actually dislocated his shoulder from the fall since the MRI of his left shoulder taken three months later had no evidence of bone bruising, inflammation, or swelling in the area, which would still have been present had the plaintiff in fact suffered a shoulder dislocation. In addition, the evidence established that the plaintiff’s knee problems had nothing to do with the accident and were consistent with the natural aging process.
Notably, the plaintiff was a carpenter who had a bachelor’s in biotechnology. After the accident he returned to Ireland, where he obtained a master’s degree in biotechnology. He subsequently was hired by a pharmaceutical company as a research analyst. Although the plaintiff claimed he was unemployed for four years and his pay as a research analyst did not equal or exceed his pay as a carpenter, his lost-earnings claim was voluntarily discontinued shortly before the commencement of trial because the plaintiff, who had admitted he had worked off the books, could not substantiate his wages.
About the Author
Carmen Nicolaou is an associate at Havkins, Rosenfeld, Ritzert & Varriale, LLP. She can be reached at carmen.nicolaou@hrrvlaw.com.
