$2,525,00 Verdict – negligent operation of cement truck – truck suddenly moves causing plaintiff to fall – knee injury with surgery – lumbar injury – four-level lumbar decompression laminectomy performed – chronic pain syndrome.

Pennsylvania Jury Verdict Review & Analysis
January, 2003

Summaries with Trial Analysis
Philadelphia County

The plaintiff was a 48-year-old mason working behind the defendant’s cement truck, when he claimed that the truck suddenly moved backwards causing him to fall. The defendant, J.D.M. Materials, a subsidiary of the defendant Morrissey Construction, maintained that the plaintiff signaled the driver of the cement truck to move and thereby caused his own injuries.

On January 5, 2000, the plaintiff was a union cement finisher employed by a subcontractor responsible for installing sidewalks and curbs at a job site located at Second Avenue and Haines Street in Philadelphia. Readily mixed concrete for the project was supplied by the defendant J.D.M. Materials, Inc.

The plaintiff testified that he was moving concrete down a chute at the back of the truck, when the truck moved backward approximately six to twelve inches without warning. The plaintiff fell two to three feet from the concrete island where he was working to the pavement subgrade below.

The plaintiff’s construction safety expert testified that the defendant’s 73,000-pound cement truck should not have been moved at a construction site absent a signal from the workers unloading the concrete. Furthermore, the plaintiff’s expert testified that the truck driver should not have moved the truck if he had reason to know that people were working behind it.

The plaintiff suffered knee and back injuries in the fall. He underwent knee surgery within a month of the fall and was referred to a spinal surgeon for his back injury. The plaintiff’s orthopedic surgeon testified that the plaintiff underwent a four-level decompression laminectomy designed to relieve pressure on the nerve roots of the spinal cord caused by swelling following the fall.

The plaintiff was 48-years old at the time of injury and earned $33,000 per year as a mason. His vocational expert opined that the plaintiff was totally disabled from employment as a result of the injuries he sustained in the accident. The plaintiff’s pain management specialist testified that the plaintiff is still under his care and has been prescribed OxyContin, Methadone and other powerful pain medications for chronic back pain. In addition, the plaintiff wore a transcutaneous electrical nerve stimulation device at all times to control pain.

The defendants contended that the driver of the cement truck would not have moved the truck without warning. The defense alleged that the plaintiff signaled the defendant’s truck driver to move backwards. The truck driver testified that he had no recollection of the incident.

The jury found the defendant 100% negligent and awarded the plaintiff $2.5 million and his wife $25,000 for her loss of consortium claim. The plaintiff’s motion for delay damages, which would increase the recovery to $2,639,000, is pending.

REFERENCE

Plaintiff’s construction safety expert: Robert Sleece from West Orange, N.J. Plaintiff’s orthopedic surgeon: Alexander Vaccaro from Philadelphia. Plaintiff’s pain management expert: Peter Corda from Sewell, N.J. Plaintiff’s psychiatrist: Farrell Crouse from Woodstown, N.J. Plaintiff’s vocational expert: Ronald S. Kaiser from Philadelphia. Plaintiff’s economist: Royal Bunin from Wynnewood

Baker vs. J.D.M. Materials, et al. Case no. n/a: Judge C. Darnell Jones, II, 7-18-02

Attorneys for plaintiff: Alan M. Feldman and Daniel J. Mann of Feldman, Shepherd, Wohlgelernter, Tanner and Weinstock in Philadelphia. Attorneys for defendant: Leigh J. Bechtel and Kristen A. Morris of Law Offices of John R. McHaffie in Philadelphia.

COMMENTARY

The outcome of this trial hinged on the jury’s assessment of how the plaintiff came to be knocked down by the defendant’s cement truck. According to trial testimony, the truck moved between six inches and a foot, which was the type of movement which would be consistent with the driver’s foot coming off the clutch. The driver testified that he had no recollection of the truck moving and was not told on the date of the accident that he had caused injury to anyone. The defense contended that it was the plaintiff who signaled the truck to move back. A witness to the accident testified that the truck moved back suddenly, but was uncertain whether a signal to move had been given by the plaintiff.

The plaintiff focused on the fact that he had been a mason for 28 years and was a dependable and reliable employee. The plaintiff vehemently denied that he had given a signal for the truck to move backward and argued that he never would have given such a signal while he was working behind it. Plaintiff’s counsel maintained that the plaintiff’s version of the incident had the “ring of truth” as opposed to the presentation made by the defense.

On damages, the plaintiff established that he continues to take narcotic pain killers and to wear an electrical nerve stimulator. The jury may have appreciated the plaintiff’s obvious discomfort during trial as he was unable to sit or stand for more than 10 minutes without changing position. A $25,000 offer by the defendants was increased to $500,000 after, following a six-hour deliberation, the jury announced that it had reached a verdict.