New York Verdicts

Plaintiff(s):

Kenneth Koerner (Male, 47 Years)

Plaintiff Attorney(s):

Kenneth Sacks;
Sacks and Sacks LLP;
New York,
NY,
for
Kenneth Koerner ■ David H. Mayer;
Sacks and Sacks LLP;
New York,
NY,
for
Kenneth Koerner

Plaintiff Expert(s):

Andrew Merola;
M.D.;
Orthopedic Surgery;
Brooklyn,
NY called by
Kenneth Sacks, David H. Mayer ■ Robert Missun;
Ph.D.;
Lost Earnings (Economics);
Louisville,
KY called by
Kenneth Sacks, David H. Mayer ■ Nicholas Bellizzi;
P.E.;
Safety;
Holmdel,
NJ called by
Kenneth Sacks, David H. Mayer

Defendant(s):

All Safe, LLC, 

S.J. Electric Inc., 

Pavarini McGovern, LLC, 

281 Broadway Holdings LLC, 

Genetech Building Systems Inc.

Defense Attorney(s):

Gary A. Rome;
Barry, McTiernan & Moore, LLC;
New York,
NY,
for
Pavarini McGovern, LLC ■ Robert Schenker;
Faust Goetz Schenker & Blee LLP;
New York,
NY,
for
Genetech Building Systems Inc. ■ None reported;

for
All Safe, LLC ■ Thomas J. King;
Harris, King & Fodera;
New York,
NY,
for
281 Broadway Holdings LLC ■ Matthew F. Rice;
Safranek, Cohen & Krolian;
White Plains,
NY,
for
S.J. Electric Inc. ■ Robert Meyerson;
Faust Goetz Schenker & Blee LLP;
New York,
NY,
for
Genetech Building Systems Inc.

Defendant Expert(s):

A. Tantleff;
Diagnostic Radiology;
East Hills,
NY called by
Robert Schenker, Robert Meyerson ■ Les Winter;
Construction Safety;
Cedar Knolls,
NJ called by
Robert Schenker, Robert Meyerson ■ Joel Grad;
Orthopedic Surgery;
New York,
NY called by
Robert Schenker, Robert Meyerson ■ Brian Greenwald;
Brain Injury/Trauma;
Edison,
NJ called by
Robert Schenker, Robert Meyerson ■ Larry Goodwin;
Construction;
Columbus,
OH called by
Robert Schenker, Robert Meyerson ■ Peter Capotosto;
Vocational Rehabilitation;
Rochester,
NY called by
Robert Schenker, Robert Meyerson ■ Daniel Paine;
Safety (Construction);
Unionville,
CT called by
Robert Schenker, Robert Meyerson ■ Sandra Metzler;
Biomechanics of Injury;
Columbus,
OH called by
Robert Schenker, Robert Meyerson ■ Douglas Cohen;
Neurosurgery;
New York,
NY called by
Robert Schenker, Robert Meyerson

Insurer(s):

Scottsdale Insurance Co. for Genetech Building Systems (excess);
Harleysville Group Inc. for S.J. Electric;
Endurance Specialty Holdings Ltd. for Genetech Building Systems (primary insurer)

On April 7, 2011, plaintiff Kenneth Koerner, 47, a union-affiliated ironworker, worked at a construction site that was located at 57 Reade St., in the TriBeCa section of Manhattan. While Koerner was working on a structure’s 18th floor, he received an urgent plea for help from two workers who were installing window panels on the same floor. Koerner fell out of a window while he was assisting the men. He plummeted three stories, and he landed on a sub-roof. He claimed that he sustained injuries of his arms, his back, an elbow, his head, a knee, his neck, several ribs, a shoulder, a thumb and a wrist. Koerner sued the premises’ owner, 281 Broadway Holdings LLC; the construction project’s general contractor, Pavarini McGovern, LLC; and two of the project’s subcontractors, S.J. Electric Inc. and All Safe, LLC. Koerner alleged that the defendants violated the New York State Labor Law. Pavarini McGovern and 281 Broadway Holdings impleaded Koerner’s employer, Genetech Building Systems Inc. Pavarini McGovern and 281 Broadway Holdings alleged that Genetech Building Systems controlled and directed Koerner’s work functions. They sought contractual indemnification. Koerner’s counsel ultimately discontinued the claim against All-Safe, and S.J. Electric was dismissed. The matter proceeded against Pavarini McGovern and 281 Broadway Holdings, but S.J. Electric was obligated to indemnify those parties. Koerner’s counsel contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Koerner was not provided the proper, safe equipment that is a requirement of the statute. They noted that Pavarini McGovern and Genetech Building Systems had established a fall-protection system in which workers were required to drill a hole in an existing support column, insert an anchor bolt and attach their safety harness. The project’s ironworkers did not routinely carry anchor bolts, and Koerner had been working some 30 feet away from the windows, outside of the area in which fall-protection was required. As such, he had not attached his harness. Koerner’s counsel contended that cables or other easily accessible tie-off points should have been situated alongside the windows. Defense counsel contended that the work site’s safety rules required workers to secure their harnesses before entering any area that was located within 30 feet of windows. They claimed that Koerner acknowledged that exceptions were not permitted and that he would not have acted differently had a different fall-protection system been available. They also claimed that anchor bolts were stored near the area in which the accident occurred.

Koerner was placed in an ambulance, and he was transported to a hospital. Doctors noted that he was suffering a fracture of his skull’s left parietal bone; a concussion; fractures of several ribs; a closed intra-articular fracture of his left, nondominant radius’s distal region, which is a component of the left wrist; a closed fracture of the same wrist’s triquetrum, which is one of the tiny bones that are located between the palm’s heel and the distal ends of the forearm’s radius and ulna bones; a fracture of his right thumb’s metacarpal, which is the bone nearest the palm; and lacerations of his head and arms. Koerner claimed that he also sustained herniations of his C5-6 and C6-7 intervertebral discs, strains of his lumbar region, a tear of his left shoulder’s glenoid labrum, derangement of the same shoulder, derangement of his left elbow, and derangement of his left knee. He further claimed that he suffered post-concussion syndrome, with manifestations that included headaches, tinnitus, vertigo, and impairment of his short-term memory and other elements of his cognition. Koerner’s hospitalization lasted about eight weeks, and he subsequently underwent about six weeks of inpatient physical therapy. During his hospitalization, his left wrist’s fractures were addressed via open reduction and internal fixation. On Oct. 25, 2011, he underwent fusion of his spine’s C5-6 and C6-7 levels. On April 24, 2012, he underwent decompressive surgery that included a laminectomy, which involved excision of a portion of a vertebra, and a discectomy, which involved excision of a portion of a disc. On Jan. 16, 2013, he underwent surgical repair of his left shoulder’s glenoid labrum. Koerner claimed that he suffers residual pain and severe diminutions of the motion range of his back, his left elbow, his left knee, his left shoulder, his left wrist and his neck. He claimed that he requires additional surgery. He also claimed that his residual effects prevent his resumption of work. Koerner sought recovery of past and future medical expenses, past and future lost earnings, and damages for past and future pain and suffering.

The parties negotiated a pretrial settlement. Genetech Building Systems’ primary insurer agreed to pay $859,234.33; Genetech Building Systems’ excess insurer agreed to pay $4,290,765.67; and S.J. Electric’s insurer, which was obligated to indemnify Pavarini McGovern and 281 Broadway Holdings, agreed to pay $300,000. Thus, the settlement totaled $5.45 million. The settlement was finalized via the guidance of mediator Robert Adams, of National Arbitration and Mediation Inc.

Judge:

Robert Adams

This report is based on information that was provided by plaintiff’s counsel, Pavarini McGovern’s counsel and S.J. Electric’s counsel. Additional information was gleaned from court documents. All Safe’s counsel was not asked to contribute, and the remaining defendants’ counsel did not respond to the reporter’s phone calls.