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The Vassallo Case

The Legal Intelligencer
By Asher Hawkins
August 23, 2006

A city jury has awarded $6.5 million to a 38-year-old bricklayer from Northeast Philadelphia who claimed unsafe conditions at a suburban work site resulted in a wooden block striking him in the head, allegedly causing permanent neck damage.

In Vassallo v. Bovis Lend Lease, Pacilio Vassallo filed suit against the August 2002 project's general contractor, Bovis, as well as pharmaceutical giant Merck & Co., the owner of the building being constructed when Vassallo was injured.

Vassallo's attorney, Jonathan Cohen of Kline & Specter in Philadelphia, said that both defendants were represented by Glenn Campbell of Gibley & McWilliams in Media. Campbell did not immediately respond to calls seeking comment.

According to court papers, the object that struck Vassallo was a "line block," a four-inch-long, L-shaped chunk of wood used by bricklayers to help them align their blocks. Line blocks are attached to one another by string and then placed on opposite sides of a wall in such a way that the line becomes taut.

Vassallo claimed in court papers that he was injured when one line block came loose from its position and the tension from its string caused it to come speeding at his head. The impact caused him to spin and fall awkwardly on some equipment located behind him on the scaffolding on which he was working.

Vassallo claimed that five-foot-high scaffolding supplied for the Bovis/Merck job placed the bricklayers in a position where a loose line block was likely to hit them in the head. Higher scaffolding, or an outrigger apparatus, would have protected his head from the type of blow he received, Vassallo argued in court papers.

Vassallo said that he even complained about the low scaffolding/loose line block problem to higher-ups at his work site.

The defense countered in court papers that loose line blocks were not a recurring problem at the Merck site. None of Vassallo's co-workers could corroborate his claims of having complained about the low scaffolding, the defendants continued. And the five-foot scaffolding met with industry and government standards.

With respect to Vassallo's fall once he was struck by the loose line block, defense attorney Campbell wrote in court papers that neither co-worker present at the time of the accident could "remember the acrobatics that Mr. Vassallo described in his deposition."

As a result of his accident, Vassallo suffered damage to his upper spine that has rendered him unable to move his neck normally, Cohen said. He can no longer perform physical labor for a living, Cohen added.

But in court papers, the defense called attention to a 1999 neck injury, MRIs of which appeared identical to those generated following Vassallo's underlying injury three years later.

In court papers, Vassallo demanded $6 million, and the defense responded with a $25,000 offer. By the last day of trial, Cohen said, the offer had increased to $500,000.

Bovis had sought summary judgment in the matter, raising a statutory employer defense, Cohen said. Vassallo responded that it could not show control of the job site, given Merck's involvement in the project. In late May, Judge Annette M. Rizzo denied Bovis' motion for summary judgment.

The case proceeded to trial beginning on Aug. 4 with Judge Esther R. Sylvester presiding. The eight-member jury returned Aug. 18 after roughly six hours' deliberations, Cohen said. The jury was not polled, he said.

They found Bovis 63 percent liable and Merck 37 percent.

Vassallo's experts included construction safety expert Matthew Burkhart of AEGIS Corp. in Southampton; Vassallo's treating neurosurgeon, Carol Ludolph of Philadelphia; and actuarial economist David Hopkins of King of Prussia.