Trial to determine if rebar company liable for one or two accidents involving plaintiff. $10.7 million gross. Alameda County.
Carpenter's fall at bridge construction site is blamed for later back problems and subsequent auto accident. Claims depression and addictions were all brought on by the original fall on the job.
- Case Name: Brian Leierer v. Harris Salinas Rebar, Inc.
- Court and Case Number: Alameda Superior Court / HG 13679708
- Date of Verdict or Judgment: Thursday, November 05, 2015
- Date Action was Filed: Wednesday, May 15, 2013
- Type of Case: Construction Site Accident, Negligence
- Judge or Arbitrator(s): Hon. Frank Roesch
Plaintiffs: Brian Leierer, 32, union carpenter
Defendants: Harris Salinas Rebar, Inc.
- Type of Result: Jury Verdict
- Gross Verdict or Award: $10,791,332
- Net Verdict or Award: $8,274,029.07 (includes $1.1 million in Post-CCP 998 interest.)
Award as to each Defendant:
Harris Salinas Rebar, Inc. was found 49.5% at fault.
Ghilotti Construction (plaintiff's employer) was found 49.5% at fault. (Not a defendant in lawsuit as responsible party for Worker's Compensation.)
Plaintiff was found 1% at fault.
After Proposition 51 apportionment, the judgment is $7,132,783.68.
- Contributory/Comparative Negligence: Ghilotti Construction (plaintiff's employer) was found 49.5% at fault. Plaintiff was found 1% at fault.
Past economic loss: $941,090
Future economic loss: $3,267,642
Past non-economic loss: $490,400
Future non-economic loss: $5,992,200
- Trial or Arbitration Time: 12 days.
- Jury Deliberation Time: 5 hours.
- Jury Polls: Negligence: 12-0; past economic and past non-economic : 12-0; contributory negligence on plaintiff: 9-3; future economic loss and future non-economic loss: 9-3.
- Post Trial Motions & Post-Verdict Settlements: Defendant will file a motion for new trial.
Attorney for the Plaintiff:
Lamb and Frischer Law Firm, LLP by Bryan Lamb and Richard Frischer, San Francisco.
Attorney for the Defendant:
Vitale and Lowe by Douglas MacKay, Gold River.
Plaintiff’s Medical Expert(s):
Santi Rao, MD, spine orthopedist, Concord.
Michael Freeman, MD, Ph.D., MPH, epidemiology, Portland, OR.
Mark Holtsman, Pharm.D., pharmacology, Rocklin.
Defendant's Medical Expert(s):
VanBuren Lemons, MD, neuro-surgery, Sacramento.
Adam Kaye, Pharm. D., pharmacology.
Plaintiff's Technical Expert(s):
Gerald Fulghum, construction safety, Sacramento.
Robert Cottle, Ed. D., vocational rehabilitation, Oakland.
Phillip Allman, Ph.D., economics, Oakland.
Defendant's Technical Expert(s):
Gary Buffington, construction safety, Santa Clarita.
Facts and Background
Facts and Background:
On October 20, 2011, plaintiff, a union carpenter working for Ghilotti Construction (General Contractor) suffered a back injury while working on a bridge in Napa County. At the time of his injury, plaintiff was performing detail work to ensure the upcoming concrete pour would create a level-driving surface.
At that time, defendant Harris Salinas Rebar had not completed the rebar mat that would become the infrastructure of the concrete road surface. The rebar mat was constructed of horizontal and transverse rebar into which the concrete would be poured. Precast concrete girders created the base of the roadway bridge. The girder contained pre-installed vertical rebar dowels.
Defendant Harris Salinas Rebar did not install the vertical dowels but used them to tie the rebar mat down. Harris Salinas’ foreman admitted that the rebar should have been capped, but that capping the rebar would have slowed their work down. Defendant also claimed that the general contractor Ghilotti Construction was responsible for capping the rebar.
A vertical, uncapped rebar dowel rising out of a girder penetrated plaintiff’s pant leg, causing him to fall and injure his back. As he fell, his foot remained about two feet above the rebar mat. He wore a 50-pound. utility belt that added weight to his fall.
He sustained serious back injury with bulging and protruding discs at L4-5 and L5-S1. Plaintiff’s foreman saw him fall and commented that it looked like it hurt, but denied such comment at trial. Plaintiff initially told his foreman he was “OK.”
Defendant claimed that plaintiff was not hurt that day. Plaintiff and his foreman testified that construction workers do not usually complain about injuries and that foremen do not want to report injuries that occur on the job. The foreman also testified that plaintiff told him he had been injured over the subsequent weekend and was not injured at work. A neighbor and friend, who testified that the foreman told her that he knew plaintiff was injured at work but he was afraid he would be fired or reprimanded if he reported an injury that occurred on his watch, severely impeached the foreman on the issue of whether plaintiff was injured at work.
Plaintiff returned to work the day after his fall, and realized when he tried to lift a 20-pound pipe that he could not perform even minimal physical work.
Defendant claimed that it was lifting the pipe the day after subject fall that caused the back injury. Plaintiff first sought medical treatment about 10 days after the fall. Over the following months, he reported pain at a level of 9/10, took narcotic pain medication and attended physical therapy.
In February 2012, plaintiff underwent a back surgery involving an L4-L5 disc replacement and L4-S1 fusion, with decompression. The outcome was “less than optimal,” as the surgeon testified and plaintiff continued suffering severe pain. Narcotic and non-narcotic pain medication failed to relieve his 7-8/10 pain. Plaintiff resorted to drinking alcohol to assist in addressing his pain and depression.
In September 2012, in anticipation of a second back surgery, plaintiff discontinued his narcotic pain medication and compensated for the lack of pain relief with alcohol. The weekend before the scheduled surgery, plaintiff checked himself into an Emergency Room with severe back pain and narcotic/alcohol withdrawal. The ER doctor testified that the withdrawal was mostly likely due to discontinuing Norco.
Defendant falsely claimed in opening statements that plaintiff voluntarily left the hospital against medical advice, although the ER physician called by defendant testified that plaintiff stayed until he was formally discharged.
Two days after discharge, plaintiff suffered a catastrophic solo-vehicle accident in which he suffered a subdural hematoma resulting in a 3-week coma and moderate brain injury. The car accident occurred on a quiet road with a “sweeping” or gradual left turn. The accident reconstruction showed plaintiff made a sharp left U-turn resulting in the passenger side of his vehicle slamming up against a tree.
Plaintiff’s experts testified the accident was consistent with a seizure that was more likely than not caused by his (failed) medical treatment for his back injury. There were no witnesses to the accident except plaintiff. Bystanders who came to the scene afterwards noted plaintiff was seizing and not restrained by a seatbelt.
After plaintiff awoke from the coma, he was a "different person." Treating doctors testified that meeting him again after the car crash was like meeting someone who looked like plaintiff but was not him. Plaintiff’s second back surgery ultimately occurred in April 2014. Doctors performed a decompression at L5-S1 on the left side. The surgery helped remove left side back radicular pain, but plaintiff is awaiting a similar surgery on the right side.
Currently, plaintiff lives in Southern California in a small studio apartment, living on disability and workers compensation payments, with the help of his mother and his ex-wife.
Plaintiff contended that defendant Harris Salinas Rebar was negligent in failing to cap the rebar in their work areas. That plaintiff's fall was caused by uncapped rebar penetrating his pant leg and causing him to fall.
Plaintiff also contended that defendant Harris Salinas Rebar was responsible for head injuries plaintiff sustained in a solo motor vehicle accident approximately 11 months later. A seizure caused by the medication / withdrawal from medication plaintiff was taking to treat the original back injury caused the car crash. Plaintiff claimed past and future wage loss, medical expenses, and loss of household services. Plaintiff also claimed past and future non-economic damages.
Defendant contended that it had no duty to cap rebar, that rebar only needed to be capped to prevent "impalement" and plaintiff was not impaled.
Defendant claimed plaintiff was not injured on the job site, but at some other location and time. Defendant disputed there was any connection between the auto collision and the back injury.
Defendant also contended that the medical treatment, including a fusion back surgery was not reasonable or necessary.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Plaintiff suffered protruding discs at L4-5 and L5-S1 as a result of the fall at the construction site. Plaintiff suffered a subdural hematoma and moderate brain damage from the solo motor vehicle crash. Claimed alcohol and substance abuse due to depression caused by ongoing pain.
Demands and Offers
- Plaintiff §998 Demand: $150,000
- Plaintiff Final Demand before Trial: $2,300,000
- Defendant Offer during Trial: $250,000
Per plaintiff's counsel, important factors in the verdict:
Plaintiff called his ex-wife and mother to testify as “before and after” witnesses. His ex-wife provided invaluable support to plaintiff and also supported him emotionally throughout the trial. Plaintiff called the foreman who witnessed the fall. The foreman admitted to witnessing the fall, but denied plaintiff was hurt. He claimed that plaintiff told him the following week that he had injured his back over the weekend, not at work. The foreman denied he ever told anyone that he knew plaintiff was injured when he fell at work but did not report it due to a fear of being reprimanded.
The next witness was the foreman’s friend and neighbor. She testified that the foreman told her he knew plaintiff was injured when he fell at work and that he (the foreman) did not want to report a workplace injury for fear of being fired or reprimanded. It was a rare “Perry Mason” moment at trial.
One hotly contested issue was whether the head injury suffered in the car crash was related or connected to the failed medical treatment for the back injury. (CACI 3929) If the jury concluded that the failed medical treatment was a substantial factor in causing the car crash, then defendant would be responsible for the head injury as well as the back injury. If the jury concluded the head injury did not result from failed medical treatment for the back, then plaintiff would only recover damages for the back injury. Thus, Plaintiff had to prepare a damage scenario for each possibility. In assuming the head injury was wholly separate from the back injury, plaintiff’s vocational rehabilitation expert testified that he would be limited to a minimum wage job. In other words, had plaintiff not suffered the back injury but suffered the head injury, he would not be able to work construction.
Even with a healthy back, plaintiff would be limited to minimum wage because of the head injury. The vocational rehabilitation expert opined that the combination of the back and head injury left plaintiff 100% disabled. Thus, the future wage loss if the head injury was not related to the back injury was based on minimum wage for his working life.
Alternatively, the vocational rehabilitation expert analyzed a scenario in which the back and head injury were related to the fall at work and the future wage loss was calculated based on union carpenter wages. Plaintiff’s safety experts testified uncapped rebar is a “hazard of impalement” violating CalOSHA and FedOSHA regulations. Testimony at trial showed that both the general contractor and defendant had a requirement under OSHA to keep their work areas safe and OSHA-compliant, which includes capping rebar. The bright orange, 3-4 inch caps prevent impalement and also significantly reduce the risk of tripping by increasing visibility of the rebar. All witnesses agreed that the vertical rebar coming out of a rebar mat is very hard to see against the backdrop of the rebar mat. Defendant called a corporate representative who claimed defendant did not have any responsibility to cap rebar, directly contradicting defendant’s foreman.
Defendant spent much time insinuating that plaintiff was an alcoholic before his fall on the construction site and that his car crash was the result of long-standing alcohol addiction and withdrawal, a claim that ultimately had absolutely no evidentiary support.
Because plaintiff’s prior law firm demanded $150,000 in the form of CCP §998 offer to compromise, there is an additional award of $1,141,245.39 in pre-judgment interest. Recoverable costs are approximately $100,000. Plaintiff’s prior lawyers also attempted to settle the case for $60,000. When Lamb & Frischer Law Firm became involved, plaintiff demanded $2,300,000. Defendant’s highest offer was during deliberations, for $250,000.