1. Appellate Court Affirms
Minimal Award to
Construction Worker
On May 4, 2004, John Mescall, a 42 year old
construction worker, was standing on top of a
building’s exterior canopy when a crane
dropped a 25 by 25 foot steel mesh causing it
to fall 20 feet in the air and strike Mescall
between his neck and shoulder.

2. Here is the Ironworkers Building at 37-
31 30th Street in Long Island
City, where this accident took place:
Mescall was taken to the local hospital
complaining of shoulder pain. He was
diagnosed with fractures of his left
clavicle, T-1 and T-2 transverse
processes and first though third ribs on
his left side and treated with pain
medications and a sling.

3. A transverse process is a bony
protrusion from the back of a
vertebrae:
Mescall claimed the accident also
caused head, neck, back, ankle
and shoulder injuries which
required four surgeries (including
ankle tendon repair in
2006, shoulder arthroscopies in
2007and cervical fusion surgery at
C5-6 in 2009) and left him with
unable to return to work.

4. Ankle tendons attach muscles of
the lower leg to the ankle and foot:

5. In his ensuing lawsuit under Labor Law Section
240, Mescall was granted summary judgment on
liability and the matter proceeded to a trial on
damages only.
On October 14, 2012, a Manhattan jury awarded
plaintiff pain and suffering damages in the sum of
$25,000 (past only – 6 1/2 years).
The jury also awarded $124,000 in past medial
expenses (an amount the parties had agreed
upon), $90,000 in lost earnings and $200,000 in future
medical expenses (27 years).
On appeal, plaintiff argued that the pain and suffering
award was inadequate and, in view of the fact that the
jury awarded $200,000 for his future medical
expenses, inconsistent in that he should have been
awarded damages for future pain and suffering.

6. In Mescall v. Structure-Tone, Inc. (1st Dept. 2012), the all of the
damages awards were affirmed.
As indicated in the court’s decision, the jury had evidence
before it from which it was reasonable to conclude that most of
Mescall’s injuries pre-existed this accident and that the others
(fractured clavicle, vertebra and ribs) had healed.
The evidence relating to plaintiff’s pre-existing injuries
included several accidents and lawsuits in which Mescall made
claims of injury and received diagnoses as follows:
1989 work-related accident resulting in disc herniation at L4-5
1994 trip and fall accident which he claimed caused
permanent injuries to his neck, back and knee with an ultimate
diagnosis of lumbar radiculopathy and a recommendation for
epidural steroid injections
aerial lift accident on July 4, 2000 in which Mescall was struck
on the side of his head and which, according to his doctor’s
report just four months before the May 4, 2004 construction
accident, left Mescall totally disabled due to permanent
head, vision and hearing injuries
cervical radiculitis radiating pain to both shoulders for years
before and within a few months of the 2004 construction
accident with positive tests for rotator cuff injuries and
shoulder impingement syndrome

7. Inside Information:
The jury was shown surveillance videotape of the plaintiff
walking along a beach on a hot summer day. The defense
claimed that it showed plaintiff walking, bending, lifting and
talking on a cell phone without any indication plaintiff was in
pain or had any difficulties. Plaintiff’s attorney said that the
presentation of the video was a desperate act by which the
defense sought a damages discount.
Plaintiff’s attorney asked the jurors to award $5,000,000 in
pain and suffering damages ($2,000,000 past, $3,000,000
future). He also requested $500,000 in future loss of earnings
and $4,700,000 in future medical expenses.
http://www.newyorkinjurycasesblog.com/2012/11/ar
ticles/back-injuries/appellate-court-affirms-minimal-
award-to-construction-worker/

8. Some of our clients have suffered
this kind of injuries due to a serious
accident. The Garcia Law Firm, P.C.
was able to successfully handle
these types of cases. For a free
consultation please call us at 1-
866- SCAFFOLD or 212-725-1313.
POSTED BY ATTORNEY RENE G. GARCIA: