by Verdict Search
Pipefitter said he fell through hole in deck of scaffold
Jefferson County District Court, 172nd
other-back and neck
other-aggravation of pre-existing condition
Slips, Trips & Falls – Slips, Trips & Falls,
Workplace – Workplace Safety
Construction – Construction, Scaffolds and Ladders
Worker/Workplace Negligence – Negligent Assembly or Installation
James Levine v. United Scaffolding Inc., No. E-177,607
February 13, 2014
James Levine(Male, 53 Years)
Trent Bond; Portner Bond; Beaumont, TX, for James Levine
Chris Portner;Portner Bond PLLC;Beaumont,TX, forJames Levine
JamesStanley; M.D.; Orthopedic Surgery; Beaumont, TXcalled by Trent Bond, Chris Portner
Steven Sacks; M.D.; Pain Management; Beaumont, TX called by Trent Bond, Chris Portner
Charles Hawkins; Ph.D.; Economics; Beaumont, TX called by Trent Bond, Chris Portner
Maunsell Wilkinson; ; Vocational Rehabilitation; Beaumont, TX called by Trent Bond, Chris Portner
United Scaffolding Inc.
Kathleen M. Kennedy;Mehaffy Weber P.C.;Beaumont,TX, forUnited Scaffolding Inc.
On Dec. 26, 2005, plaintiff James Levine, 53, a pipefitter, was working at a Port Arthur refinery owned by his employer, a large oil and gas company. He was standing on a scaffold to work on one of the valves of an exchanger. He claimed that the scaffold was owned and erected by contractor United Scaffolding Inc. According to Levine, he had been working for about an hour when he stepped on a piece of plywood that was covering a hole in the deck of the scaffold. The plywood moved, and Levine said he fell partway through the deck and caught himself with his arms. He claimed he sustained neck injuries in the incident. United Scaffolding was not on the premises on the day of the alleged incident because its employees had been off on Dec. 24, 25 and 26 for Christmas break.
Levine sued United Scaffolding for failing to nail down the plywood.
The defense argued that the scaffold wasn’t built the way Levine alleged. Also, according to United, the scaffold it built did not have plywood or a hole in the deck.
The defense also denied that the incident happened as Levine claimed. A co-worker on the scaffold said he did not witness any incident. A co-worker on the ground could not describe the hole, and he and Levine’s supervisor gave a different location for it than Levine did. The supervisor also said only Levine’s foot went through, and that the hole was too small for Levine’s entire body.
The defense further argued that refinery employees were not supposed to be on the scaffold that day, because United was not present to inspect it, as required by the Occupational Safety and Health Administration before each use. According to defense counsel, although Levine said he checked the scaffold’s inspection tag before using the scaffold, he could not remember if it said the scaffold had been inspected that day. His co-workers did not check the tag.
Two weeks after the incident, Levine went to his employer’s medical clinic, where he underwent X-rays and was prescribed pain medication. He claimed a cervical strain. He had pre-existing degenerative disc disease, but he said it was asymptomatic before the incident. He also claimed that his degenerative disc disease kept his neck pain from improving. After another two weeks, he was sent to an orthopedic clinic and was diagnosed with cervical strain and pre-existing degenerative disc disease at C4-6.
The plaintiff underwent physical therapy for several weeks, but it did not help. Doctors at the orthopedic clinic, concluding that he was not a surgical candidate, referred him to a pain management specialist, who gave him pain medication and a couple of sets of facet injections. Levine experienced a little relief from the first set of injections, but none from the second. Levine said he could not do anything without experiencing pain.
Levine remained on full duty until June 2006, at which time doctors restricted him to light duty. No light duty was available, however, so he stopped working entirely.
The plaintiff’s paid or incurred medical bills were $10,822.45. He claimed future medical bills of $120,000 to $130,000 for pain medication. For lost earning capacity, he sought $236,030 in the past and $896,558 in the future, saying he was unable to work at all because of the injuries and pain medication. For past and future physical pain and mental anguish and past and future physical impairment, he sought a total of $675,000.
Although his base salary was $55,000, with overtime he made an average of $102,000. He worked a great deal of overtime during hurricane season.
The defense argued that Levine sustained no injury and that his treatment was for severe degenerative disc disease. The defense also introduced a surveillance video of him detailing a car for two hours.
The treating orthopedic surgeon and treating pain management doctor testified by video deposition about the reasonableness and necessity of Levine’s past and future treatment. The testimony of the Levine’s vocational rehab expert and economics expert was read to the jury.
The jury found United Scaffolding negligent and did not find Levine negligent. It awarded $1,920,410.45.
This was the second trial. In the first trial, in December 2008, a jury found United 51 percent negligent and Levine 49 percent negligent and found that Levine’s damages were $178,000 (for future medical bills only), after which he was granted a new trial.
The testimony of Levine’s vocational rehab and economics expert from the first trial was read at the second trial.
$10,822 Personal Injury: Past Medical Cost
$102,000 Personal Injury: Future Medical Cost
$200,000 Personal Injury: Past Physical Impairment
$200,000 Personal Injury: Future Physical Impairment
$175,000 Personal Injury: future physical pain and suffering
$236,030 Personal Injury: past lost earning capacity
$896,558 Personal Injury: future lost earning capacity
$100,000 Personal Injury: past physical pain and suffering
6 male/ 6 female
Defense counsel said the verdict will most likely be appealed.
This report is based on information that was provided by plaintiff’s and defense counsel.
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