Cement Mason Gets $2.5 Million for Injury

July, 2002
By Jennifer Batchelor

A 12-member jury of the Philadelphia County Court of Common Pleas has awarded $2.5 million to a permanently disabled cement finisher who was injured while unloading concrete from a 73,000 pound truck.

Feldman Shepherd Wohlgelernter & Tanner member Alan M. Feldman, who represented the plaintiff and his wife along with Feldman Shepherd associate Daniel J. Mann, said the jury found defendant JDM Materials 100 percent negligent and made the lump sum award after deliberating for approximately six hours. The jury also awarded $25,000 to the plaintiff's wife.

Damages in Baker v. JDM Materials included medical expenses, lost wages, and pain and suffering. According to Feldman, the defense offered $25,000 before trial and $500,000 after learning the jury had rendered a verdict.

According to Feldman, the plaintiff, Michael Baker, suffers from chronic back pain and will never be able to return to his job as a cement mason, or to any job for that matter.

On Jan. 5, 2000, Baker was working at a construction site in Philadelphia, a pretrial memorandum said. He was preparing sidewalks and curbs for a new McDonald's restaurant and Amoco gas station. The concrete for the job was supplied by JDM Materials, a subsidiary of Morrissey Construction.

Feldman said Baker was pulling concrete down a chute extending from the back of a cement mixer at the time of the accident. As he was working, the cement truck suddenly lurched backward, throwing Baker from the concrete island on which he was standing to a pavement subgrade that, according to the pretrial memorandum, was approximately two to three feet below the island. Baker hyperextended his knee and jammed his back, Feldman said.

Knee surgery followed that month, and Baker was referred to a spinal surgeon for his back injuries. Dr. Alexander Vaccaro performed a four-level decompression laminectomy, which is designed to relieve pressure on the spinal cord or nerve root of the lumbar spine. However, Feldman said Baker still suffers from chronic pain and is under the care of a pain management specialist.

In addition, Baker takes Oxycontin, methadone and other powerful pain medications that, according to his attorney, leave him drowsy, unable to concentrate and subject to fatigue. Feldman also said the plaintiff wears a Transcutaneous Electrical Nerve Stimulation device, intended to relieve pain, at all times. He cannot sit or stand comfortably for more than 10 or 15 minutes at a time without changing positions, and is unable to drive for more than 10 or 15 minutes.

"I think it was apparent to the jury that he was in pain," Feldman said. "The jury appreciated that he was in agony and very uncomfortable."

The plaintiff contended that the driver of the cement mixer should not have moved the truck when he had reason to know that people were working behind it.

Baker also argued that the truck should not have moved without a signal.

According to the pretrial memorandum, construction site engineer and plaintiff's witness Robert S. Sleece opined that there was a breach of the applicable standards of care when the cement truck moved without warning and despite the presence of workers nearby.

According to Feldman, the defense argued that the driver of the truck did receive a signal to move, and in fact, that it was Baker who gave the signal.

"That was one of the principle issues at trial and we addressed it as well as we could," Feldman said. "And I believe the jury found that my client was someone who had done this work for 28 years, had been a very reliable and dependable employee, had never had a work injury in 28 years and was adamant that he had never given a signal for the truck to move and never would under the circumstances where he was working at the rear of the truck."

An independent witness gave conflicting testimony about the accident, Feldman said.

"What we tried to do as trial counsel was ask the jury to find that evidence that had the ring of truth as distinct from evidence that was not logical or reasonable," Feldman said. "And we believe that the jury certainly spent time carefully considering the evidence -- they were out for a while -- and that they found the truth and rendered a fair award."

Baker was 48 when the accident occurred two years ago.

"He loved being a cement mason," Feldman said, "and pointing out the buildings in Philadelphia that he helped to build. It was his life, and he doesn't know what to do with himself now."

The plaintiff plans to file for delay damages, which Feldman estimated at $114,000. Defense attorneys were unavailable for comment before press time.

The July 18 verdict was rendered before Judge C. Darnell Jones Jr. Law Offices of John R. McHaffie, Philadelphia, senior trial attorney Leigh J. Bechtle and trial attorney Kristen A. Morris represented the defendant.

$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.