$3.9 Million Settlement at Trial on Behalf of Two Ironworkers Injured at a Construction Site.

On October 11, 2006, two union ironworkers were severely injured while working at the Broad Street Station Restoration Project in Newark, New Jersey. The project was owned by New Jersey Transit, which had hired a general contractor, Conti Enterprises, Inc. of South Plainfield, New Jersey. Conti had full responsibility for managing the project, both by contract and safety regulations.

The ironworkers were working for a subcontractor on the project, Railroad Construction Co., Inc. of Paterson, New Jersey. On the date in question, they were operating a scissors manlift on a precast concrete platform, which would eventually be used by train passengers when the station was fully operational. At about 2:30 am, on the late shift, they were "bolting up" a canopy at the station, which would be used by train passengers for protection from the elements.

Suddenly, as they were traveling on the motorized scissors lift across the platform, one of the precast planks flipped onto the railroad tracks, catapulting the lift and both workers to the tracks below, causing traumatic bodily injuries. As it developed, the precast platform had not been properly secured by the general contractor, Conti, who had supervisory and contractual responsibility for doing so, and responsibility for alerting its subcontractors of any such dangers.

One ironworker sustained a lower back injury requiring surgical fusion with pedicle screw instrumentation, which required a bone graft at L5-S1. He also fractured his dominant right hand, which required two surgeries and pinning due to a malunion. He also had an open fracture of his left knee, and lost approximately one-third of his left patella, as a result of an open reduction and extensor mechanism repair, with associated scarring. A vocational/economic expert that his past and future net wage loss would amount to between $1.5 and $1.9 million.

The second ironworker sustained ten fractured ribs with painful chest wall syndrome, a concussion, traumatic structural damage in the right inner ear which required two surgeries and resulted in vestibular dysfunction with dizziness and loss of balance, and a profound hearing loss in the same ear, which required a hearing aid. Vocational testimony was presented that this disability forced him to give up a 22 year career as an ironworker and take other jobs in non-union positions that did not pay as well. A vocational expert asserted that he would lose between $1.35 and $1.6 million in past and future wages, by virtue of the physical limitations that prevented him from continuing as union steel worker.

John Ratkowitz and Amos Gern tried the case between November 3 and November 19, 2009. The first ironworker settled his case after one week of trial, on November 13, for $2.9 million. The claims of the second ironworker went to verdict on November 19, before a jury which returned a gross award of $494,138, reduced by 34% for comparative negligence. However, Starr Gern was able to negotiate a high-low settlement of $1,000,000 to $2,000,000 prior to the verdict. As a result, the second ironworker will receive a settlement of $1,000,000 in spite of the jury verdict, and all potential appeals were waived.

Ironworker Suffering Multiple Comminuted Fractures of the Spine Settles Case at Mediation

The plaintiff was a journeyman ironworker performing steel connection work on a warehouse being erected in Monmouth Junction, New Jersey. The plaintiff's employer hired a crane operator, to provide cranes and a crane operator to lift the steel to the location where the ironworkers were erecting the warehouse. On the afternoon of the accident, the plaintiff was working with another ironworker, connecting steel bar joists to the bay structure of the warehouse. A steel bar joist was delivered by the crane operator in a sudden manner, without warning, without the customary hand signals from the ironworkers, and at a high rate of speed angled directly at the plaintiff, who was not tied off in any manner. While attempting to deflect the joist, the plaintiff's work glove became caught and he was pulled off the structure. There was no fall protection in place for the ironworkers at the site, and the plaintiff fell 45 feet to the ground below sustaining multiple comminuted spinal fractures.

At the time of his accident, the plaintiff was a member of a three man connecting team that included his cousin, and a relative of his employer's owner. The three man team was responsible for landing and connecting steel bar joists that were delivered by the crane operator, with two of the ironworkers connecting the joist and one applying an x-brace in the middle of the joist connecting it to the other joists.

Plaintiff alleged that neither he nor his connecting partner ever signaled for the crane operator to deliver the joist that pulled him off the steel. This testimony was supported by plaintiff's connecting partner, and both of them maintained that the crane operator had repeatedly failed to follow hand signals on other occasions. While the crane operator maintained that he was given the hand signals, and that the method of his delivery was appropriate, he had no specific recollection of the angle and movement of the joist, and did confirm that the plaintiff's glove got caught on the joist that he was delivering.

At the time of the accident, the general contractor and the subcontractor all failed to provide proper fall protection in compliance with OSHA requirements. No static lines or other means were provided to tie off a body harness-tether while the ironworkers were up on the steel. Further, no safety nets were installed. The sole means of fall protection in place for ironworkers at the site was the use of manlifts, which were inadequate in number and not properly maintained. Although the ironworkers were customarily brought up to the steel structure by the use of manlifts, these devices were not left in place to allow the ironworkers to work from an attached basket so as to permit them to tie off with a body harness-tether device as fall protection. The manlifts were further impeded by wet and uneven ground conditions which made it difficult to properly locate the devices and caused them to get stuck in the mud. Due to the inadequacy of the fall protection system in place, ironworkers were routinely permitted to stand on the steel to make connections while not protected from falls in any manner. In fact, they were actually encouraged to wear full body harnesses, without tether straps and without a means of tying off, to give the appearance that they had fall protection, in the event OSHA inspectors came to the construction site.

The superintendent and project manager for the general contractor had a trailer office approximately 300 yards from the site of plaintiff's fall. They allegedly walked the site on a regular basis, yet failed to monitor the fall protection and safety at the job site, instead deferring to plaintiff's employer.

After plaintiff sustained his injury and was brought by ambulance to Robert Wood Johnson University Hospital in New Brunswick, an alcohol test specimen was collected and revealed a post-accident blood serum alcohol concentration of .054%. This is the equivalent of a blood alcohol concentration of approximately .045%. It was determined that plaintiff had consumed beer over lunch, and his fall took place approximately two hours after lunch. Blood alcohol experts were retained by both the plaintiff and defendants, who each concluded that plaintiff's blood alcohol concentration at the time of the fall was between .05 and .07%, and that the beer consumption would have been approximately 48 ounces during the lunch period. While the experts agreed that in controlled laboratory settings, impairment can begin at .04%, plaintiff's expert relied on the descending blood alcohol concentration to conclude that this was a late stage absorption. Further, it was undisputed that the plaintiff was an experienced and accomplished ironworker and had demonstrated no physical impairments prior to the accident while in the process of landing and connecting many other bar joists. He demonstrated no unusual behavior indicative of impairment, and plaintiff's expert viewed his impairment as subtle and disagreed with a conclusion that the risk of an accident was substantially increased at .05% BAC.

Plaintiff had landed on his back in deep mud. He remained conscious, in severe lower back pain and was having trouble breathing. Emergency CT scans and x-rays revealed several comminuted fractures in the thoracic and lumbar spine. Surgery was not performed until the following day at which time a straight incision was made in his back from T6 in the thoracic spine through L4 in the lumbar spine which was hooked off over the right ilium for bone harvesting. Plaintiff sustained a burst fracture at the L1 lumbar vertebra with spinal canal compromise and an additional anterior compression wedge fracture at T10 in the thoracic spine. A thoracolumbar reduction of fractures with pedicle screws and hook instrumentation was made from T9 to L2, together with an arthrodesis from T11 to L2 using rods. The spinal canal was compromised because of retropulsion of bone into the canal, and there were numerous fractures of the transverse processes. The surgical procedure took 10 hours and the plaintiff lost four liters of blood limiting the surgery. While at Robert Wood Johnson, for the next ten days, he contracted a facial infection with painful cold sores and suffered a mild left lower lobe pneumonia. From Robert Wood Johnson, he was taken directly to Kessler Institute for Rehabilitation in West Orange, where he remained for several weeks. Over the course of the next year, the plaintiff progressed from a wheelchair to a rolling walker, to the use of a cane, and was required to wear a full molded back brace to restrict movement in the spine. Ultimately, lumbar range of motion plateaued at 50% and lifting restrictions at 25 lbs.

Having determined that he could no longer work as an ironworker, or in any other physically active job, plaintiff returned to college, and obtained a BA as an English major and secured a full time position as an English teacher.

Attorneys Amos Gern and John Ratkowitz were able to resolve the case after expert depositions.