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Strutt secures $20M settlement for brain injured worker
Strutt secures $20M settlement for brain injured worker

National Trial Lawyers member Barry Strutt secured a $20 million settlement in January for a 19-year-old worker who suffered a severe traumatic brain injury following a trial that lasted six days. Strutt, a partner in Keegan, Keegan & Strutt in White Plains, NY, announced the settlement for Paulo Suarez, who sued Harrison & Burrowes Bridge Constructors, Inc. and PCI Industries Corp for a violation of New York labor law. The lawsuit arose from injuries Suarez sustained in July 2011 while working on a bridge rehabilitation project that involved the replacement of steel bearing plates on an Interstate 287 overpass in Rye, NY.

According to court documents, Suarez’s co-workers improvised a method of lifting the steel bearing plates up a steep slope using a garden cart and a truck. A carpenter for the contractor had threaded a nylon rope through a “come-along” hook – a ratcheting pulling device with hooks on both ends—and attaching the rope to the handle of the cart on one end and to the bumper of the truck at the other end. The rope was wrapped around a concrete pole at the bottom of the slope before it was attached to the truck so that as the truck moved parallel to the slope, the cart was raised “up the slope.” The come-a-long “snapped” during a “hoisting” or “lifting” operation, striking Suarez--who was shepherding the cart up the slope—in the head, rendering him unconscious and causing him to roll down the slope.

Suarez suffered severe traumatic brain injuries (TBI), requiring the appointment of a guardian, his father, Roberto Suarez. As a result of the TBI, Paulo Suarez had no memory of the accident. Suarez remained in an induced coma for about a month following the incident. After being discharged following a five-month stay at two hospitals and undergoing rehabilitation therapy, the younger Suarez was hospitalized twice for depression in 2016. As a result of his workplace injury Suarez claimed that he suffered respiratory failure; a coma; a severe traumatic brain injury with subarachnoid hemorrhage and a diffuse axonal injury; all of which resulted in residual, permanent cognitive, memory, and behavioral (psychological and psychiatric) impairments, including but not limited to an adjustment disorder and bi-polar mood disorder, with manic and psychotic features secondary to traumatic brain injury and exacerbated by the side effects of necessary mood stabilizing medications, left-sided weakness and generalized slowing; ventilator associated pneumonia; dysphagia; multi-facial trauma including a comminuted right mastoid fracture; a right mandible fracture with right parasymphyseal fracture requiring jaw wiring; a resultant right facial droop and facial deformity; an avulsion fracture which nearly took off his ear; a temporal bone fracture; Achilles lengthening procedure; spastic right hemiparesis; spasticity of the right upper and lower extremities; a permanent, resultant right hemiparetic gait; botox injections for spasticity; persistent and often incapacitating tremors of the upper and lower extremities, and a urinary tract infection. Because of his permanent disability, Suarez will require care and treatment throughout his life expectancy of more than 50 years.

Suarez had initially sued the state of New York in the Court of Claims based upon the State’s ownership of the property where the accident occurred, and sued the general contractor and subcontractor shortly after that in the Westchester State Supreme Court. Further, because case law determined that while Suarez could obtain more than one verdict (but only one satisfaction), he would necessarily be required to accept the lower of the two potential verdicts, it was in Paulo Suarez’s best interest to take a damage verdict in the Court of Claims and dismiss a direct action in Westchester Supreme Court.

In August 2016, Suarez sought permission from the Guardianship Part to discontinue the Supreme Court action against all the direct defendants (Harrison & Burrowes and PCI, Industries) with prejudice in the Westchester Supreme Court action and take a damage verdict in the Court of Claims, noting that a decision on damages from the Court of Claims could be entered as early as October or November 2016.

In March 2016, the defendants proposed a mediation involving off of the parties in both the Supreme Court and Court of Claims actions. Suarez’s attorneys reduced their initial demand of $22 million to $18 million after two days of mediations. The defendants offered $9.5 million, which was rejected. A trial then began in the Court of Claims on July 25 and ended on August 8, 2016. At the close of trial, the Court of Claims asked for written summations due 30 days after receiving a copy of the court transcript. The defendant State and claimant submitted their written summations on October 25, 2016. Shortly thereafter, defendants collectively asked for a global “settlement” conference before the judge in the settlement part after the pending Supreme Court case had been set for trial on or about January 31, 2017. Plaintiff-claimant indicated at the settlement conference that the demand was now $22 million pursuant to the terms set forth in the previous letter. The presiding judge of the Settlement Part recommended $20 million dollars and several other conferences were held.

On November 3, 2016, a provisional settlement was put on the record indicating that a global settlement had been reached and that it would, by its terms, pay plaintiff-claimant $20 million pursuant to a set time table. That global settlement was contingent upon final approval by the Guardianship Part, which occurred on January 12, 2017. (There was a very substantial Workers’ Compensation Lien at play. The terms of the final settlement, however, including the names of the insurance companies and the apportionment of payments by the parties and insurance companies are strictly confidential.)

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