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Bronx County, NY

This action involved a plaintiff warehouse worker who was 45 at the time of the incident. The plaintiff contended that as he was about to step off a small platform situated next to the desk on which he was recording items, he was struck by the defendant forklift operator who was exiting his employer’s truck and thrown to the loading dock. The plaintiff maintained that he suffered a lumbar herniation that ultimately required surgery and a fractured foot, which occurred when the forklift ran over his foot. The defendant contended that the incident occurred as the plaintiff stepped off the platform and into the path of the forklift, causing the accident.

The defendant maintained that shortly after the incident, he essentially provided this version to his employer whose representative was taking a report. The plaintiff contended that the supervisor taking his statement was mistaken and that this defendant’s position should be rejected. The plaintiff maintained that he had turned, was about to step off the platform, but stopped because the forklift was approaching him. There would have been no actual defense eyewitness testimony regarding the incident.

The forklift operator did not testify in discovery and the plaintiff had obtained an order precluding his testimony at trial. The forklift operator was terminated shortly after the incident after having refused to under drug and alcohol testing. The plaintiff would have questioned a defense supervisor regarding the custom and practice of having employees involved in accidents undergo such testing and the plaintiff would have argued that the jury should be apprised of this custom and practice and the fact that the operator did not comply.

The plaintiff maintained that he was struck and knocked to the loading dock. The plaintiff also maintained that his foot was run over by the forklift and that he suffered a foot fracture. The plaintiff also contended that he was knocked to the loading dock and developed severe radiating pain and weakness in the lumbar area shortly after the incident. The plaintiff maintained that a lumbar herniation was confirmed by MRI shortly thereafter. The plaintiff contended that a course of conservative therapy was inadequate and that he ultimately required lumbar surgery.

The plaintiff asserted that despite the operation, he will permanently suffer extensive pain and weakness in the low back area. The plaintiff, who was earning approximately $________ per year, contended that he is will permanently be unable to return. The plaintiff also maintained that everyday activities, such as walking, are painful and difficult.The defendant had $________ in coverage. The case settled prior to trial for $________.

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