$3,100,000 – Facial Damage from Construction Fall
On the eve of closing arguments in a Philadelphia Common Pleas Court trial, a contractor has agreed to pay $2 million to settle claims brought by a worker who broke every bone in his face and suffered a total loss of his senses of taste and smell when he fell more than 20 feet in a construction accident.
The total settlement for plaintiff Dan Ross is $3.1 million because three defendants had settled prior to trial, according to Ross’ Mongeluzzi and David L. Kwass of Mongeluzzi Barrett & Bendesky. Immediately prior to the trial, Mongeluzzi said, he had been demanding just $900,000 to settle with the final defendant, Ernest Bock & Sons Inc.
But Mongeluzzi said the weeklong trial before Judge Nitza I. Quinones Alejandro and a 12-member jury went so well that the settlement demand was raised. The deal was struck Sunday night, just hours before the lawyers were set to present closing arguments.
Kwass, who took the lead in presenting the damages end of the case, said that after the settlement was announced in court, the jurors told the lawyers that they were very impressed with several of the plaintiff’s expert witnesses.
According to court papers, Ross was a mechanical laborer working for Heisey Mechanical, primarily in its shop, and only occasionally in the field. In March 1999, Ross was working at the USDA Pilot Plant construction site in Wyndmoor, Pa., where his duties included operating a scissor lift to hang pipe.
A scissor lift allows workers to perform tasks at significant heights without erecting scaffolding. It consists of a platform surrounded by a cage that is mechanically lifted by an accordion-style scissor armature up to 20 feet and can be driven to move the worker as work progresses.
Mongeluzzi said the primary hazard with scissor lifts is their tendency to tip over if a floor is not perfectly level.
Ross testified that he was forced to maneuver the scissor lift around an open drain hole but that he was unable to avoid the hole after he had installed some pipe.
As the apparatus tipped over, Ross said, he tried to get clear of the work platform, but it landed on him, crushing his legs and propelling him face-first into the concrete floor.
Co-workers found him partially underneath the scissor lift, face down, bleeding from his eyes, ears, and mouth. Ross testified that he believed he was about to die.
Doctors testified that Ross broke every bone in his face and needed extensive plastic surgery. He also shattered his right elbow and broke his left thigh bone.
Mongeluzzi said Ross’ face now looks “almost normal but not the same.”
In his lawsuit, Ross accused the manufacturer of the scissor lift, JGL Industries Inc., of fail-but that he was unable to avoid the hole after he had installed some pipe.
As the apparatus tipped over, Ross said, he tried to get clear of the work platform, but it landed on him, crushing his legs and propelling him face-first into the concrete floor.
Co-workers found him partially underneath the scissor lift, face down, bleeding from his eyes, ears, and mouth. Ross testified that he believed he was about to die.
Doctors testified that Ross broke every bone in his face and needed extensive plastic surgery. He also shattered his right elbow and broke his left thigh bone.
Mongeluzzi said Ross’ face now looks “almost normal but not the same.”
In his lawsuit, Ross accused the manufacturer of the scissor lift, JGL Industries Inc., of failing to cure a known defect. An expert witness was prepared to testify that he had invented a safety device to be added to scissor lifts that would have prevented the accident and that his employer, Mayville Engineering, decided not to patent the device so that every scissor lift manufacturer could use it.
JGL settled with Ross prior to trial for $800,000.
(Mongeluzzi said he recently settled another suit against JGL over a scissor lift accident for $700,000. In that case, he said, plaintiff Patrick McMullen suffered a fractured ankle.)
In Ross’ case, United Rentals North America Inc., which sold the scissor lift to Ernest Bock & Sons, settled for $25,000; and STV Inc., a company that acted as construction inspectors on the job, settled with Ross for $275,000.
Mongeluzzi said the settlements would be offset by a $375,000 workers’ compensation lien.
After the settlement, Mongeluzzi said, the jurors told him they were especially impressed by his construction expert, Stephen A. Estrin, who testified that Ernest Bock & Sons was negligent because it was aware that the drain holes on the garage floor presented tripping hazards, but neglected to adequately protect the holes, and in allowing scissor lifts to be used in the garage where there were open drain holes.
Kwass said another key expert was Dr. Richard L. Doty, the director of the Smell and Taste Center in the Department of Otorhinolaryngology at the University of Pennsylvania Health System, who testified that Ross suffered a “total bilateral loss of smell function” and loss of taste.
Doty’s testimony was important, Kwass said because it showed the jury not only that Ross suffered a loss of life’s pleasures such as tasting food, but also that such a sensory loss presents real dangers since he is no longer able to smell fire, spoiled food or leaking natural gas.
Ernest Bock & Sons was represented at trial by attorney Robert J. McDade of Kennedy Walker & Lipski.