. .

Attorney(s) for Plaintiff:
Barry R. Strutt and John W. Keegan Jr.
Keegan, Keegan & Strutt, LLP
www.keegan-law.com

$20,000,000 GLOBAL RECOVERY REACHED AFTER WRITTEN SUMMATIONS SUBMITTED IN COURT OF CLAIMS DAMAGES TRIAL AGAINST STATE OF NEW YORK OWNER AND AFTER PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON LIABILITY UNDER LABOR LAW SEC. 240(1) GRANTED IN SUPREME COURT ACTION AGAINST GENERAL CONTRACTOR AND SUBCONTRACTOR ENGAGED IN OVERPASS REHABILITATION PROJECT ON I-287 – FALLING OBJECT – 19-YEAR-OLD PLAINTIFF STRUCK IN HEAD WHEN PART OF THE PULLEY SYSTEM USED BY CO-WORKERS TO HOIST 120+ POUNDS STEEL BEARING PLATES SNAPS – SERIOUS TBI – PLAINTIFF IS IN COMA FOR APPROXIMATELY ONE MONTH.

Westchester County, NY

This action involved a then 19-year-old laborer who was struck in the head by a metal piece of a make-shift pulley system that snapped and broke off during a hoisting operation. The makeshift pulley system was being used by co-workers to hoist bearing plates up a steep slope where they were going to be installed on an Interstate highway overpass as part of a statewide bridge rehabilitation project.

The claimant-plaintiff named the state/owner as well as the general contractor and subcontractor. The action involving the state was brought in the Court of Claims to be tried before the presiding judge. The action against the general contractor and subcontractor was brought in Westchester County Supreme Court, to be tried before a jury. Counsel relates that the controlling case law holds while that petitioner-plaintiff could in theory obtain more than one damage verdict, he could only obtain one satisfaction, and that claimant-plaintiff would therefore be "forced" in the long run to "accept" the lower of the two potential verdicts, which the defendants would satisfy.

The plaintiff's motion for Summary Judgment on liability in the Court of Claims case was granted approximately 11 months before the damage trial was scheduled, which meant the forthcoming damage verdict would be increased and calculated from the date of the liability verdict at 9% per annum. In addition, under New York's structured settlement law (a so-called 50-b verdict) the future damages portion of the entered verdict would be further increased by approximately 4% per annum, further inducing the defendants to settle before the judgment was entered and the 50-b verdict was calculated. Following this bench trial, the parties submitted written summations. Coincidentally, on the final day of evidence in the Court of Claims damage trial, the plaintiff's motion for Summary Judgment on liability in the Supreme Court case was granted. A global settlement was further precipitated when plaintiff's counsel moved in Westchester County Supreme Court to voluntarily dismiss that action and take the imminent damage verdict in the Court of Claims.

The claimant-plaintiff maintained in the Court of Claims damages trial that the closed head injury caused a severe traumatic brain injury, and that the claimant-laborer, now 25 years old, will permanently suffer very significant concentration and memory deficits, and motor tremors on his right side. He also claimed that he will permanently require medical and nursing care, long-term rehabilitation therapy with a TBI component, as well as psychiatric and psychological therapy. The evidence reflected that the plaintiff had already required two psychiatric hospitalizations for depression. The claimant-plaintiff further contended that he will permanently be unable to work, has sustained a substantially diminished quality of life and will need constant supervision and assistance from a therapeutic aide and/or his family throughout his life expectancy of more than 50 years.

During the Court of Claims damages trial, the State, which did not deny that the claimant suffered a serious TBI and that he will be unable to work, contended that he would not require a 24-hour a day attendant until he reached the age of 60 and that an aide for eight hours per day would be sufficient.

The defendant also maintained that the cost of care would be significantly less than plaintiff's experts claimed.

The plaintiff's economic evidence reflected that future medical care costs alone ranged from approximately $28 million to approximately $30 million. The State's evidence ranged from approximately $9 million to approximately $12 million. The parties entered into a global settlement of $20 million after written summations were submitted in the Court of Claims case, but before the actual damage verdict was rendered

Reference
Plaintiff's clinical neuropsychologist expert: Karen L. Dahlman, Ph.D. from New York, NY. Plaintiff's economist expert: Thomas K. Fitzerald, Ph.D. from Bronxville, NY. Plaintiff's neurologist expert: Glenn Salinger, M.D. from Helen Hayes Hosp., W. Haverstraw, NY. Plaintiff's neurologist expert: Michael I. Weintraub, M.D. from Briarcliff Manor, NY. Plaintiff's physiatrist expert: Steven S. Bifulco, M.D. from Tampa, FL. Plaintiff's psychiatrist expert: Andrew Hornstein, M.D. from Helen Hayes Hosp., W. Haverstraw, NY. Defendant's clinical psychologist expert: Dustin J. Gordon, Ph.D. from Ridgewood, NJ. Defendant's economist expert: David Zaumeyer, Ph.D. from New York, NY. Defendant's life care planning expert: Jane Mattson, Ph.D. from Norwalk, CT. Defendant's physiatry expert: Brian Greenwald, M.D. from JFK Hosp., Edison, NJ.

Suarez vs. State of NY, et al. Index no. 121254, 01-12-17.

Attorney for plaintiff: Barry R. Strutt and John W. Keegan Jr. of Keegan, Keegan, and Strutt, LLP in White Plains, NY.

Commentary
The procedural history in this action was particularly interesting. The plaintiff named the owner/State, as well as the general contractor and a subcontractor under the Labor Law. The case against the State was tried by the Court and the Westchester County Supreme Court would have been tried before a jury. The State moved unsuccessfully for a stay of the Court of Claims case and the denial of successive stay motions were affirmed on appeal. Although the plaintiff could get more than one verdict, he could only obtain one satisfaction, and plaintiff's counsel relates that the claimant-plaintiff would be required to accept the lower of the two potential verdicts. (See Page v. La Buzzetta, 96 A.D.2d (3rd Department 1983) The damages evidence in the Court of Claims trial reflected estimates from the State of future medicals of at least $9 million, (plus diminished earning capacity of almost $3 million and 50 years of future pain and suffering). After the settlement briefs were submitted in the Court of Claims, plaintiff moved in the Guardianship Part to discontinue the Supreme Court case, setting the scene for this global settlement.

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