$7 million settlement for brain damaged child in Kingston, New York

John Fisher
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Stopping Medical Injustice
Posted on Sep 07, 2012

On August 9, 2012, a 6-year old child recovered $7 million for a massive brain injury sustained in a car wreck on May 11, 2008 on the New York State Thruway in Orange County, New York.  The nation's largest union, Service Employees International Union, paid $5,950,000 of the settlement.  The settlement funds will be placed in a supplemental needs trust that will continue the infant's eligibility for government benefits throughout her life and thus, ensure that she has funds to pay for her medical and non-medical needs that are not paid by Medicaid.

On May 11, 2008, a union organizer and employee of the Service Employees International Union, Estevan W. Nembhard, attended a barbecue with prospective union members in Bridgeport, Connecticut, where he was attempting to create a new unions three nursing homes. After leaving the barbecue, Nembhard began driving to his home in the Hamlet of Grahamsville in Sullivan County, New York via the New York State Thruway.  Around 4:00 a.m., Nembhard began swerving from lane to lane on the northbound lanes of the NYS Thruway and he eventually fell asleep at the wheel and slammed into the rear of a car parked on the shoulder of the the driving lanes. 

After the accident, Nembhard admitted to the police that he fell asleep at the wheel.  Both cars were demolished in the wreck. The 2-year old infant (she is now 6 years old) was a passenger in the rear of the car stopped on the shoulder of the highway and she was airlifted by helicopter to the Westchester Medical Center.

The 2-year old girl sustained a massive brain injury.  Pieces of the infant's shattered skull were lodged in her brain, requiring a craniotomy and extensive rehabilitation. Years later, the infant has significant cognitive and behavioral deficits and the estimated costs of providing care for the infant are estimated to be a minimum of $15 million over her lifetime.

The pivotal issue in the lawsuit was whether Nembhard fit within the "salesman" exception to the general rule in New York that commuting to and from work is not a work-related activity. If Nembhard was required to use his personal automobile as a condition of his employment with the Service Employees International Union and he was in fact traveling from a work assignment to his home at the time of the car wreck, then he would be considered to be within the "scope of employment" and his employer, Service Employees International Union, would be responsible for the negligence of its employee (this is a legal doctrine known as "vicarious liability").

To prove that Nembhard was "working" at the Connecticut BBQ on the evening of the accident, there were two crucial issues: #1: Was Nembhard actually "working" at the BBQ, i.e., promoting the benefits of the union, or was he just there for social reasons; and #2: Did Nembhard reside in Grahamsville, New York where he was headed when the car wreck occurred.  Nembhard's employer, SEIU, fought these two issues vigorously over the course of the lawsuit.

The SEIU claimed that Nembhard did not have authorization to attend the Connecticut BBQ from the senior organizer at the Local 1199, Robert Baril, and that it would have been highly inappropriate to attend a meeting with prospective union members at midnight.  Further, the SEIU claimed that the Connecticut BBQ was just a social event for Nembhard and he went to the BBQ just to have beer and drinks with friends.  Even if he was promoting the SEIU at the Connecticut BBQ, SEIU claimed that Nembhard did not really live in Grahamsville, but rather, they he resided in New York City where he was born and raised.

During the course of the lawsuit, it was discovered that the SEIU takes tremendous measures bordering on illegal activities in order to create new unions. The SEU authorized "dumpster raids" by its union organizers while entailed collecting documents from dumpsters at nursing homes and other facilities where the union was trying to create a union.  The union would use the documents collected from the "dumpster raids" to determine the names and job titles of the workers at the non-union nursing homes and create an "organizing chart" to determine the "targets" of the nursing homes, i.e., those workers most likely to support the union.  The practice of "dumpster raids" is not a secret practice of the SEIU--in fact, the questionable and perhaps illegal tactic is specifically authorized in writing by the SEIU and union organizers are encouraged to engage in dumpster raids.

While the SEIU's ostensible purpose is to promote worker benefits and safety, the SEIU required its union organizers to drive their cars to meetings with prospective union members for more than 8 hours a day, which resulted in fatigue, drivers falling asleep at the wheel and car accidents.  This occupational hazard was addressed in a comprehensive report of workplace safety at the SEIU by occupational health specialist, Dorothy Wigmore, in May of 2008.  Ms. Wigmore's occupational report specifically warned the SEIU that the excessive hours of driving of its union organizers was the number one just hazard faced by the SEIU and that union organizers laughed in jest when the issue of driving hazards was raised by Ms. Wigmore at meetings with union organizers.  The SEIU has done little, if anything, to address the occupational hazards faced by its union organizers since Ms. Wigmore's report and the union organizers continue to drive all hours of the day and night to meet with prospective union members.

The SEIU's only source of income is dues from union members and without dues from its union members, the SEIU would not exist. Hence, the SEIU encourages its union organizers to take any measures possible to create new unions, often at the risk of the health and safety of its 175 union organizers.  Today, driving hazards faced by union organizers caused by excessive hours of driving remains the number one job hazard faced by SEIU's field staff.

As a result of the SEIU's neglect for worker safety, Nembhard fell asleep at the wheel on May 11, 2008, causing the severe brain injuries to a 2-year old child.  It is unlikely that the horrible car wreck would have occurred if the SEIU had taken the simple step of limiting the driving hours of its union organizers to a maximum of eight hours a day. Instead, the SEIU ignored the safety of its union organizers, and it continues to allow its field staff workers to engage in 24/7 work hours that endanger their workers and the public at large.

It is ironic that the SEIU's ideals of those of worker benefits and safety, yet it has a policy that places the safety of its own employees at risk.  To this day, the SEIU places low priority on the safety of its union organizers, even in the face of the comprehensive report of Dorothy Wigmore specifically encouraging the union to implement changes to limit the number of hours that union organizers are permitted to drive in a single workday.

Former executives of the SEIU confirm that the SEIU places no emphasis on safety for its own employees, and the cultural and organizational dysfunction at the SEIU continues to result in needless car accidents of its sleep-deprived union organizers.  There is no reason this should continue except for one: the SEIU's number one priority of creating new unions. If the SEIU implements measures to protect its union organizers, such as capping the number of hours that an union organizer can drive in a day, it fears that it will not accomplish its goal of creating new unions. Tragically, the SEIU places its own interests before those of the safety of its workers...and that is the sad reality of the case of a terribly brain damaged 6-year old girl.