JOHN KEEFE, JR. and GERALD CLARK SETTLE NEW JERSEY CONSTRUCTION ACCIDENT SEVERE INJURY CASE FOR $500,000

On August 12, 2004 John Doe** was working as a carpentry laborer on a $2 million dollar conversation of an old Long Beach Island motel into luxury condominiums. The owner of the construction project was Ship Bottom Development Corporation, LLC. The general contractor on the job was Makeo Construction/Anthony Pacelli. The interim sub-contractor that hired plaintiff's employer was Island Earth Construction/Michael Mercadante.

The New Jersey construction accident case settled recently during a day long settlement conference before the Honorable Craig L. Wellerson, Ocean County Superior Court. Mr. Doe was represented by John E, Keefe, Jr., Esq. and Gerald H. Clark, Esq. of the Keefe Bartels & Clark law firm in Shrewsbury, New Jersey. The general liability insurance companies for the liable contractors all contributed to the settlement.

At the time of the construction accident plaintiff John Doe was working for a carpentry subcontractor called Woodworks/Richard Rothstein. Proper installation of the door jams required that pieces of cedar shake be hammered into the door frames at various points to create a tight fit of the door jam into the frames. At the time of the construction injury accident plaintiff was using an unguarded table saw to cut about three pieces of cedar shake at a time into the sizes needed for the door jams. Mr. Doe using this unguarded saw he was assigned for some two to three weeks before the accident.

While performing his assigned tasks on this unguarded table saw, the wood got stuck, his hand came in contact with the blade and he suffered multiple severe finger amputation degloving type injuries requiring extensive surgery including hardware fixation. He has lost significant use of the hand.

Injury lawyer Clark argued that all three sets of defendants had liability as follows:

Ship Bottom Development Corporation, LLC- project owner- The general contractor, Anthony Pacelli, also happened to be a 35% owner of the Ship Bottom Development Corp., LLC. Contrary to their legal duty, the general contractor, Makeo Construction/Anthony Pacelli admitted he was completely ignorant of OSHA and he and his company did absolutely nothing to enforce its provisions or maintain a safe worksite. The general contractor was- by their own admission- entirely incompetent as it pertains to construction site safety and OSHA. Given it was Pacelli as the majority owner of the Ship Bottom LLC who essentially hired himself as the general contractor, the Ship Bottom LLC has liability for hiring an incompetent contractor. See, e.g. Majestic Realty Associates v. Toti Contracting Co., 30 N.J. 425 (1959); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App.Div. 1996).

Makeo Construction/Anthony Pacelli- general contractor- Under the law, the general contractor had a non-delegable duty to maintain a safe workplace that includes "ensur[ing] 'prospective and continuing compliance' with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations." Alloway v. Bradlees Inc., 157 N.J. 221, 237-38 (1999), citing, Kane v. Hartz Mountain, 278 N.J.Super. 129, 142-43 (App. Div. 1994). As such the general contractor bears responsibility for all OSHA violations on the jobsite. Meder v. Resorts International, 240 N.J.Super. 470, 473-77 (App. Div. 1989), cert. den. 121 N.J. 608; Kane, 278 N.J.Super. at 142-43; Dawson v. Bunker Hill Plaza Assocs., 289 N.J.Super. 309, 320-21 (App.Div.1996). As indicated above however, the general contractor- by his own admission- had zero knowledge of OSHA and nothing to comply with the construction site safety laws.

Island Earth Construction/Michael Mercadante- interim sub contractor- OSHA is supposed to be enforced from the top down. The interim sub-contractor who hired plaintiff's employer also bears responsibility for failing to see to it that OSHA was enforced with respect to its sub-contractors on the site. See, e.g., Carvalho v. Toll Bros., 143 N.J. 565 (1996) (contractor with control over sub-contractor responsible for job site OSHA violations). Like the primary general contractor, Island Earth/Mercadante too readily admitted he was entirely ignorant of construction site safety and did absolutely nothing to enforce OSHA safety requirements of its sub-contractors.

Clark argued that all defendants were negligent in failing to enforce OSHA and other construction site safety responsibilities to maintain a safe workplace and ensure OSHA compliance on the job site. Specifically, defendants should not have allowing the saw in question to be used without the required safety features. Mr. Doe was presented with a hazardous and dangerous condition on the work site on the date of the accident by being required to use a table saw without a guard, fence or push block. OSHA has mandated specific safety requirements with respect to the use of table saws. Table saws are required to have a guard on the blade, a fence to secure the wood to be cut and a push stick to push the wood to the blade instead of the worker using his fingers.

As discussed in the report of plaintiff's liability expert, OSHA compliance on this construction project was virtually non-existent. All major project players readily admitted they knew nothing, or next to nothing, about OSHA and construction site safety. They also readily admitted they did absolutely nothing to prevent accidents and injuries on the job and had absolutely no safety management plan whatsoever. Training of workers such as John Doe was non-existent. When asked about whether defendants did any kind of job monitoring to foresee and prevent accidents all witnesses were completely dumbfounded, such concepts being entirely foreign to them.

As such, plaintiff John Doe, a young man in his early 20s, was routinely exposed to an extremely hazardous unguarded table saw and suffered severe personal injuries. He was given absolutely no training (contrary to OSHA) to even recognize these hazards, much less to know how to properly use this saw. As such, the serious injuries John Doe sustained were inevitable, yet entirely preventable, and all defendants share liability.

Doe suffered severe personal injuries as a result of these contractors failing to enforce safety laws on this construction site. Immediately after the accident John Doe was airlifted to Atlantic City Medical Center with a traumatic injury to his left hand. A bulky dressing and splint were applied in the field.

Upon admission to the hospital, at approximately 4:15 an intra-venous was started in his right arm, he was given a tetanus shot and an intra-venous antibiotic. At 4:14pm he was given Morphine 4mg. for pain. His pain score was 10/10. He was given 8mg. of Morphine by IV at 5:05pm and again at 6:10pm. His pain continued to be 7/10 and he was given 4mg. of Morphine at 9pm and again at 9:45pm. He was examined by Orthopaedics and was found to have lacerations on all the fingers of his left hand. Fingers 1,2,4 and 5 had good capillary refill, profundus and superficialis intact by motion. The third digit had sluggish capillary refill, an open fracture, flex profundus and superficialis. No sensation on ulnar and radial side of finger with pin prick. An x-ray of the left hand showed a communited distal fracture of the aspect of the third proximal phalange.

The open third proximal phalange fracture had both digital nerves out and the finger was dysvascular although viable. The flexor tendons were out and there were multiple other lacerations visible. The lacerations were washed out and splinted. He was then transferred by ground ambulance to Thomas Jefferson University Hospital, Philadelphia, Pennsylvania for further a higher level of care with a better chance for saving his finger.

Upon transfer to Thomas Jefferson University Hospital John Doe's pain score was 10/10 in his left hand. He was given Dilaudid 1mg. by IV. At examination he was found to have a complex left hand laceration with an open fracture. He was taken emergently to the Operating Room where he was also found to have digital nerve lacerations of the index and middle fingers.

During surgery the wounds from his thumb to small finger were irrigated with copious amounts of normal saline, removing any residual necrotic tissue with further debridement. A comminuted fracture fragments were found in the left long finger. Dysvascular and devitalized portions were excised. The flexor tendon was identified and sutured. The radial neurovascular bundle was noted to be transected. The ulnar digital nerve was identified for subsequent repair. There was a volar laceration with a transected radial digital nerve and artery which was evaluated. The dorsal wounds of the thumb, ring and small fingers were irrigated and sutured appropriately to allow for repair of the complex lacerations. The long finger bony injury was stabilized with two K-wires and satisfactory alignment was confirmed. The flexor tendons were repaired with core suture. The digital nerves were repaired with nylon suture. The index finger was then repaired. The skin lacerations were repaired by suturing. A sterile dressing and short arm splint were applied.

Postoperatively he was allowed Morphine 1-2 mg. IV every 10 minutes for pain control. He was later discharged and was to follow-up with the hand surgeon. He was prescribed an antibiotic to prevent infection and Percocet tablets every 4-6 hours for pain. He was to keep the left arm dry and elevated.

John had follow-up care by Dr. Mark Rekant of the South Jersey Hand Center. On his first follow-up on 8/25/04 Dr. Rekant notes that the patient is still having soreness and stiffness of his left hand and digits. Digits were viable with capillary refill. He had hypersensitivity throughout. He was given a prescription for hand therapy including a protective dorsal block splint with local wound care and whirlpool. He was also given Percocet to assist with pain management.

Mr. Doe had the skin sutures removed and additional local debridement performed on 9/1/04. He was to continue with splinting. He continued noting ongoing soreness and stiffness on his visit of 9/15/04. There was ulnar deviation of the middle finger secondary to the bony injury and bone loss. Treatment options including additional surgery were discussed. When evaluated on 11/3/04 he continued to note ongoing stiffness. He lacked both flexion and extension of the digits with particular stiffness to the long finger. An x-ray showed gross alignment although there was significant bone loss from the PIP joint of the long finger. The K-wires were removed. He was instructed on a home exercise program and future surgery was once again discussed.

On his next visit he still had ongoing stiffness and progressing angular deformity of the long finger at the PIP joint. There was a 45 degree angular deformity of the long finger which was further impeding flexion of his adjacent digits. Dr. Rekant opined that John was suffering from a left long finger post traumatic PIP arthritis and left long finger bony loss. Treatment options including amputation of the digit, PIP fusion and PIP joint replacement were discussed. Dr. Rekant opined that John will likely need an additional surgical procedure to regain and improve hand function although there would likely be permanently diminished hand function as compared to his opposite uninjured hand.

During a physical therapy evaluation on 11/9/04 the long finger PIP deformity was noted. He had functional limitations in tight grip, lifting, pinch, carrying, dressing, opening containers and other activities of daily living. He had pain, loss of motion, swelling, soft tissue injury, weakness, palpable tenderness and a functional loss. Treatment plan consisted of therapeutic exercise, therapeutic activities, hot and cold pack and parafin, a home exercise program, manual therapy techniques and differential tendon glides. His rehabilitation prognosis was fair.

The future medical treatment options for John as discussed with Dr. Rekant include: 1) amputating the deformed middle finger entirely from the hand, including the bone that goes down to the wrist, and then sewing the remaining fingers on the hand to cover the gap; 2) amputating below the fracture and missing bone; 3) three different surgeries that would replace the joint in the finger and the tendons that are dead from atrophy and then patch the skin. He would prefer having the joint replacement. He was told this would cost a lot of money. He has no personal medical insurance and the general contractor failed to require sub-contractor's carry worker's compensation insurance.

When he returned to work after the accident he took a lesser paid job as a plumbers assistant. He believes the condition of his hand interfered with his job. He had to totally reposition his body to use his right hand. Using his left had was too slow. He believes his employer gave him special leeway because he was sympathetic to his injury.

Prior to the accident John's passion was playing the guitar. This was one of the most important things in his life. He was an accomplished player and a member in a band. He has tried on two occasions to play but had so much pain in his hand that it was completely unreasonable for him to try again.

John also loved to write and draw. Now it is difficult for him to hold a piece of paper to write on. It is a difficult maneuver for him to do and causes pain in his hand. There is an endless list of things that are too painful or awkward for John to do because they require the use of both hands. Everything in life has an element of difficulty now.

In addition to the pain in his left hand, John has restricted motion due to the third finger. He has a problem closing his hand, the third finger does not lay flat, he can not fully extend his hand back. When it is cold his hand reacts in a way where it gets stuck in one position.

F. Lost Wages, Medical Bills and Liens

i. Past Medical Bills:

Virtua Health - mobile care unit;	1362.00
Thomas Jefferson University Hospital	29303.44
Dr. Rekant	17,280.00
Atlantic Shore Orthopaedic Associates	125.00
Atlantic Radiologists	35.00
Atlantic City Medical Center - trauma service	400.00
Atlantic City Medical Center Anesthesiologist	155.00
Atlantic City Medical Center	4404.00
Southern Ocean County Hospital - PT	444.00
Southern Ocean County Hospital	110.00
MONOC - emergency transportation 8/12/04	1311.85
MONOC - emergency transportation 8/12/04	2574.80
Jefferson University Physicians	1584.00
TOTAL PAST MEDICAL BILLS	$61,628.14

As set forth in the medical documentation, John also requires extensive future medical treatment and may even require a finger amputation. Future medical bills are expected to equal the past medical bills roughly in the amount of $60,000.

ii. Lost Income

John was out of work from 8/12/04 until 3/05. He was earning $15.00 per hour which is $600.00 a week for a 40 hour week. His lost wages are approximately $20,250.00. When he returned to work in March 2005 he took a lesser job at $10.00 per hour. He has a $5.00 an hour wage loss from 3/05 for his entire life span. That calculates to a rough pay loss of $560,200.00.

iii. Worker's Compensation

Mr. Doe's employer was uninsured. As such, a claim is being pursued against the general contractor as provided for under the workers compensation scheme. It is expected that when resolved, there will be a substantial lien.

**the actual name of the plaintiff has been changed.