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Suffolk County

This was a Sec. ________ labor law action in which the plaintiff, who was performing work on a portion of the roof of the department store which leased the premises from the defendant owner, contended that he was provided no safety equipment whatsoever, resulting in his being blown off the roof by a gust of wind. The plaintiff fell 20 feet and contended that he suffered a severe fracture to the right, dominant elbow which required fusion surgery, a frozen right shoulder which stemmed from extended lack of use of the arm, and a closed head trauma which resulted in significant cognitive deficit, difficulties concentrating and continuing headaches. The plaintiff also contended that he developed a stuttering and stammering defect which partially stemmed from the organic brain injury and was partially emotional in nature. Finally, the plaintiff contended that he sustained a severe reactive depression. The plaintiff’s motion for summary judgment on liability under the absolute liability provisions of Sec. ________ had been granted and the Court also directed a verdict against the third-party defendant employer, who failed to provide any safety devices, under common law indemnity.

The plaintiff’s neurologist related that the plaintiff suffered a severe fracture to the right elbow and that because of the severity, a fusion was ultimately required. The physician also related that because of the extended disuse occasioned by the fusion, the plaintiff developed a frozen shoulder. The neurologist contended that the plaintiff will permanently suffer severe restriction of use of the dominant arm. The plaintiff indicated that although he can perform everyday tasks with the arm, he has very little strength.

The plaintiff’s neuropsychologist maintained that the plaintiff suffered a closed head trauma which resulted in a significant cognitive deficit manifesting in difficulties with concentration and memory and that the deficits were confirmed by a battery of neuropsychological testing which was performed. The plaintiff contended that because of the injuries to the dominant arm, he will never be able to resume roofing or perform other physical work and that because of the cognitive deficit, he will, as a practical matter, be permanently unemployable. The defendant’s vocational expert contended that the plaintiff could be retrained in a field such as a bank employee taking loan applications. The plaintiff’s neuropsychologist contended that the loss of concentration and memory difficulties will preclude the plaintiff from working in such a field. The plaintiff also argued that the jury should consider that the defendant’s vocational expert had not personally interviewed the plaintiff.

The plaintiff’s treating neuropsychologist contended that the because of the physical and mental limitations, the plaintiff suffered a severe depression and that he has already undergone ________ psychotherapy sessions. The plaintiff maintained that he was previously very active and that because of his limitations, he has become extremely frustrated and has lost a significant degree of self respect. The plaintiff also maintained that the p 7 3 difficulties have led to significant marital discord. The defendant’s examining psychiatrist contended that the reaction is less severe than claimed. The plaintiff countered that in view of the evidence that he has already undergone ________ psychotherapy sessions, it was clear that he was suffering a significant reaction.

The plaintiff also presented his brother-in-law and wife who maintained that prior to the accident, the plaintiff was a relatively gregarious and active individual and that he has become extremely depressed ever since the incident. The plaintiff also contended that the jury should consider that the defendant did not present any of the plaintiff’s co-workers to describe their observations of his pre-accident emotional state and the plaintiff argued that based upon this factor, the plaintiff’s contentions that he did not suffer such difficulties before the incident should be accepted.

The plaintiff also maintained that he developed a stutter and stammer in his speech after the accident. The plaintiff’s proofs, stemming from the testimony of both the neuropsychologist and neurologist, reflected that the injury was probably partially organic in nature and partially an emotional reaction to the incident. The defendant contended that there was no evidence of an organic cause. The diagnostic testing including an MRI was negative. The plaintiff countered that irrespective of the question of whether the condition was psychological or organic in nature, he did not suffer such deficits before the accident and that it was clear that it was caused by it. The plaintiff’s experts contended that the speech defect is permanent nature.

The jury awarded $________, including $________ for past pain and suffering, $________ for future pain and suffering, $________ for past lost earnings, $________ for future lost earnings, $________ for medical expenses, $________ for past loss of services and $________ for future loss of services. The defendant owner and third-party defendant had no contractual relationship and the recovery was based on common law indemnity. The third-party defendant’s post-trial motions are pending.

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