New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

Luis Ramos was sitting in a parked car in the parking lane, on Claremont Parkway in the Bronx on September 24, 2001. He had been waiting for his son when he decided to exit the car. After opening the driver side door about six inches, his car was struck by a passing city bus.

Ramos was sitting in a 1987 Ford Thunderbird:

Ramos was thrown to the other side of the car and claimed he hurt his back.

Ultimately, Ramos sued the transit authority and on May 21, 2009, a jury found the bus driver 100% at fault for the accident and awarded plaintiff pain and suffering damages in the sum of $595,000 ($270,000 past - 8 1/2 years, $325,000 future - 9 years). Both the liability finding and the damages award were upheld on appeal last week in Ramos v. New York City Transit Authority (1st Dept. 2011).

As indicated in the decision, plaintiff was 59 years old at the time and he sustained multiple herniated discs in his lumbar spine that required a combined discectomy, laminectomy and spinal fusion four years later.

In a laminectomy, the surgeon removes the bony back wall of the affected spine, called the lamina and then in a discectomy, the surgeon removes the disc itself:

 And here's what the spine looks like after the lumbar fusion surgery with the insertion of a metal plate and screws:

In the appeal, the defense argued, unsuccessfully, that (a) the liability verdict should be reversed because plaintiff should have seen the bus before he opened his car door into traffic and (b) in the alternative, the jury should have apportioned some of the fault to plaintiff because they found he was negligent (but that his negligence was not a proximate cause of the accident).

As to damages, the defense argued that the jury award was excessive in view of plaintiff's preexisting conditions:

• degenerative disc disease (when aging discs become stiff and dry out)
• scoliosis (a sideways curvature of the spine)
• syrinx (a cavity in the spinal cord formed by cerebrospinal fluid)

Plaintiff successfully countered each of the defense arguments as to damages through the testimony of his expert neurologist who stated that:

• both the scoliosis and the syrinx were in plaintiff's cervical spine and the likelihood that either of these conditions affected plaintiff's lumbar spine was extremely remote
• plaintiff showed no symptoms of preexisting low back pain problems and the fact that he had been diagnosed with degenerative disc disease two years before ths accident was of no consequence because there was no evidence (such as an MRI) that Ramos had a herniated disc before the accident
  

Inside Information:

• Ramos refused medical treatment at the scene, reported to work that night as a doorman in an apartment building, continued to work for  a few more days and did not seek any medical attention at all until three days later when he presented to a neighborhood clinic complaining of significant lower back pain.
• There were only three witnesses at trial - plaintiff, a police officer and plaintiff's medical expert, neurologist Ringa Krishna, M.D. The defense produced neither its bus driver nor any medical expert to rebut plaintiff's claims and proof as to causation, pain, disability and permanency.
• Unfortunately, the surgery failed and plaintiff's condition got worse. He was diagnosed with chronic nerve damage and arthritis in his spine causing permanent low back pain and making it difficult to walk. Ramos never returned to work.
• Plaintiff was granted a missing witness charge as to the defense physician who was engaged before trial but did not testify at the trial - the jury was told that it may infer that the defense doctor would not have supported the defendant's position with respect to the medical issues and would not contradict the plaintiff's medical evidence.

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On October 3, 2003, Clyde Davison stumbled and fell from the subway platform onto the tracks at Franklin Avenue in Brooklyn. Luckily for him, there was no train in the area and a police officer responded quickly finding the 50 year old man face down near the third rail apparently intoxicated.

Within a few minutes, before Davison could be moved, a train entered the station at about 20 miles per hour and its contact shoe clipped Davison severely injuring him causing fractures of his clavicle and scapula.

Here is a typical clavicle fracture:.

In the ensuing lawsuit, the transit authority was found 70% at fault for plaintiff's injuries and Davison was charged with 30% of the fault.

The trial judge disagreed and dismissed the case reasoning that plaintiff was the sole proximate cause of his state of intoxication and that he unreasonably and unforeseeably disregarded the police officer's instructions to get up and away from the tracks. On appeal, though, in Davison v.  New York City Transit Authority (2d Dept. 2009), the 70/30 split was reinstated.

Finally, in 2010, a damages only trial was held.

The jury heard testimony from plaintiff and doctors for both sides describing the nature of Davison's clavicle and scapula injuries and their effect on his life. They rendered a pain and suffering verdict in the sum of $216,000 ($150,000 past - 6 years, $66,000 future - 22 years).

The plaintiff appealed, this time claiming that the jury's award was inadequate and should be increased.

In Davison v. New York City Transit Authority (2d Dept. 2011), the appellate court has now agreed with plaintiff again and ordered an increase in his award from $216,000 to $450,000 ($275,000 past, $175,000 future).

The net award to plaintiff, in view of his 30% comparative negligence, is $315,000.

The decision merely mentioned that plaintiff sustained fractures of his clavicle and scapula. Here are the details of Davison's injuries:

• comminuted fracture of the left clavicle requiring surgery to repair with a steel plate and screws
• comminuted fracture of the left scapula requiring  surgery to repair with two steel plates and screws
• 27 day hospitalization
• outpatient hospital physical therapy for two months
• severely restricted movement and pain in the left arm with inability to perform normal household chores

X-Ray showing the scapula after surgery like the one underwent by Mr. Davison:

The defense argued that the jury's award was adequate because plaintiff's fractures had healed, he was not suffering from any significant disability, he had no medical treatment for his injuries since August 2004 and any pain he still suffered from at trial was from prior unrelated injuries (of which there were many, including eight motor vehicle accidents and one that required neck surgery).

We've discussed clavicle and scapula injuries before, here and here.

Inside Information:

• Defendant had offered $250,000 to settle the case before beginning the trial (a pretty good approximation of how the case would end up).
• At the damages trial, plaintiff was cross-examined concerning his alcohol use (he admitted he had a history of chronic alcoholism) and his drug use, matters objected to at trial and on appeal but ultimately not addressed by the appellate court.

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Natalie Barnhard was an ambitious, energetic, bright 24 year old who'd gone to school to become a physical therapy assistant. On October 22, 2004, three months after  landing a job at an orthopedic physical therapy practice in Buffalo, Natalie had a catastrophic accident at work when a 600 pound leg extension machine tipped over and fell on top of her, crushing her neck and rendering Natalie a C-5 quadriplegic.

Here is a Cybex leg extension machine, similar to the one that fell on Natalie Barnhard:

The machine was not bolted to the floor and, while working with a patient, the machine fell on her when Natalie was standing on its 400 pound weight-stack side with her hands pulling on the top to stretch her arms and shoulder.

Natalie sued Cybex claiming it was liable for her injuries because (a) the machine was defectively designed (dangerously allowing it to tip with only 40 pounds of horizontal force) and (b) there was no warning of the machine's unstable condition.

Cybex argued that it was not liable because (a) Natalie's employer, Amherst Orthopedic Physical Therapy, P.C., should have anchored the machine to the floor and (b) it was unforeseeable that Natalie would misuse the machine and pull it over onto herself.

On December 7, 2010, after an eight week trial, an Erie County jury ruled that Cybex, Amherst Orthopedic and Natalie all shared some responsibility for the accident  (Cybex 75%, Amherst Orthopedic 20%, Natalie 5%).

The jury then awarded Natalie pain and suffering damages in the sum of $33,000,000 ($8,000,000 past - 6 years, $25,000,000 future - 42 years).

On appeal, in Barnhard v. Cybex Intl., Inc. (4th Dept. 2011), the liability findings have been affirmed but Natalie's pain and suffering award was reduced by $21,000,000 and now stands at $12,000,000 ($3,000,000 past, $9,000,000 future).

Natalie's quadriplegia has left her with minimal-to-no function of her nerves below the level of the injury meaning that she:

• will forever be unable to walk and is wheelchair bound
• has no functional use of her hands
• is incontinent and must rely on others to do catheterizations, bowel movements and all other personal hygiene
• does not have full use of her diaphragm, which interferes with her ability to sneeze or cough and leaves her with trouble even clearing her throat
• is unable to feed herself
• is in constant neck pain

Additionally, Natalie suffers from extreme emotional and psychological pain and depression arising out of decreased feelings of self-worth, agitation and frustration in her inability to function on her own and the loss of life's pleasures (including the break-up of her relationship with a young man she planned to marry and the inability to enjoy sexual relations).

In concluding that $12,000,000 was the maximum permissible award for pain and suffering in this case, the judges relied upon two cases:

1. Bissell v. Town of Amherst (4th Dept. 2008) - $10,000,000 ($3,000,000 past - 5 years, $7,000,000 future - 33 years) for a 39 year old man with lumbar fractures resulting in paraplegia, with motor function above his knees and the use of his upper body and hands but with loss of bladder, bowel and sexual functions
2. Allison v. Erie County Indus. Dev. Agency (4th Dept. 2006) - $5,000,000 ($1,000,000 past - 4 years, $4,000,000 future - 41 years) for a 31 year old man with a burst fracture at T-12 and lumbar fractures who required four level spinal fusion surgery and was left with bladder and sexual dysfunction and severe debilitating back pain but could do light household work and use a treadmill for 25 minutes

Curiously, the decision in Barnard v. Cybex Intl., Inc. omits any reference to Oakes v. Patel (4th Dept. 2011), a case decided by the same court only a few months ago, There, the court sustained a pain and suffering award of $9,600,000 ($5,600,000 past, $4,000,000 future - 18 years) for a 52 year old man with left sided paralysis and significant brain injuries who requires assistance with most personal needs.

Several other cases appear to be relevant in comparing pain and suffering awards that have been sustained by appellate courts in New York for injuries similar in type or severity to Natalie Barnhard's, including:

• Miraglia v. H&L Holding Corp. (1st Dept. 2007) - $10,000,000 ($5,000,000 past - 3 1/2 years, $5,000,000 future - 35 years) for a 45 year old man whose torso was impaled on a steel bar that severed his spinal cord and left him with complete paralysis and neurological dysfunction at and below the L-2 level
• Ruby v. Budget Rent-A-Car Corp. (1st Dept. 2005) - $10,000,000 ($2,000,000 past - 3 years, $8,000,000 future - 45 years) for a 25 year old man who suffered from a T-6 spinal cord injury and complete paraplegia
• Schifelbine v. Foster Wheeler Corp. (4th Dept. 2004) - $6,500,000 ($1,000,000 past - 3 years, $5,500,000 future - 38 years) for a 35 year old man with a fractured skull rendering him a quadriplegic and requiring an above the knee amputation

Inside Information:

• A press release was issued last week in which Cybex indicated it will seek permission to appeal to the state's highest court, the Court of Appeals.
• Over defendant's objection, testimony (from the patient Natalie was working with) that plaintiff was "monkeying around" on the machine prior to the accident was precluded as an impermissible opinion of a lay witness. Cybex argued that the accident could not have occurred without plaintiff's exertion of far more force on the top of the machine than she testified to (i.e., that she was merely leaning back while holding the top of the machine). The defense argued that the "monkeying around" testimony would have provided a relevant and important contradistinction to plaintiff's testimony for the jury to weigh.
• Plaintiff's award now stands at approximately $44,000,000: $12,000,000 for pain and suffering; $2,000,000 for past and future loss of earnings and $30,000,000 for past and future medical and life care expenses.
• The defense successfully argued on appeal that the approximately $800,000 jury award for future child care expenses should be vacated in its entirety because it was purely speculative. Plaintiff testified that she "hoped" to have two or three children after getting married but the defense pointed out that she was neither married nor pregnant and had never consulted with a doctor to learn whether she could conceive or carry a child.

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On August 22, 1998 Enrique Isaac was driving on Linden Boulevard near its intersection at Ashford Street in Brooklyn. He collided with a left turning city bus and ended up with several substantial orthopedic injuries.

At trial, the then 53 year old plaintiff was awarded pain and suffering damages in the sum of $2,250,000 ($1,500,000 past - 9 years, $750,000 future - 20 years).

The defense claimed that the award was excessive and the appellate court has agreed.

In Isaac v. New York City Transit Authority (2d Dept. 2011), the award was reduced by $450,000  as follows:

• past pain and suffering reduced from $1,500,000 to $1,200,000
• future pain and suffering reduced from $750,000 to $600,000

The court's decision omits any reference at all to the nature of plaintiff's injuries. We have uncovered the facts.

From the scene of the accident, plaintiff was taken by ambulance to a local hospital where he was admitted for five days and then transferred to another hospital where he was admitted for an additional two weeks. Plaintiff underwent three open reduction internal fixation (ORIF) surgeries in which metal plates and screws were inserted:

1. Hip: acetabular hip socket fractures  (wire, plates and screws to fix)                                                
2. Shoulder: proximal humerus fracture reduced by the use of wires and screws                           
3. Hand: fractures of the base of the 2nd, 3rd and 4th metacarpals (plate and screws to fix)

Plaintiff argued on appeal that the jury's award was reasonable and not at all excessive, in view of the foregoing as well as the facts that he:

• was confined to a wheelchair for three months and to his home for eight months
• had continuing pain in his legs with cramps awakening him 2-3 nights a week
• could no longer enjoy softball, soccer and basketball

The defense countered arguing that Mr. Isaac made a good recovery, was left with only a moderate disability of his hip and that he:

• stopped taking pain medication six months after the accident
• returned to work (as a hospital housekeeper) 11 months after the accident
• stopped all medical treatment for his injuries six months after the accident

The appellate court decision approvingly cites five prior cases:

1. Conley v. City of New York (2d Dept. 2007) - $200,000 (increased from $14,000) for a 74 year old woman with an intra-articular wrist fracture requiring surgery
2. Biejanov v. Guttman (2d Dept. 2006) -  $600,000 (reduced from $1,050,000) for a four year old boy with fractures of his thumb and index fingers requiring surgery, leaving him with ulnar nerve damage
3. Muff v. Lallave Transp. (3d Dept. 2004) -  $800,000 for a 36 year old man with bilateral wrist fractures, crushed pinky finger and fractured shoulder, requiring six surgeries (including a wrist fusion)
4. Jansen v. Raimondo & Son Constr. Corp. (2d Dept. 2002) - $750,000 (reduced from $1,030,000) for a 36 year old man with severe bilateral shoulder injuries (subluxation and dislocation) requiring two surgeries, fractures of his humerus and clavicle and bilateral carpal tunnel syndrome
5. Dooknah v. Thompson (2d Dept. 2000) - $200,000 (increased from $50,000) for a 61 year old man with nondisplaced fractures of his acetabulum and pubic ramus (might need hip replacement surgery in the future)

The court did not address a case that plaintiff cited that appears to be relevant - Lukas v. Trump (2d Dept. 2001). Mr. Lukas had been afflicted with polio since the age of 17 and could walk only with the assistance of crutches and braces. At the age of 60, he fell due to defendant's negligence and sustained a fractured hip that required surgery to insert screws and a metal plate into that portion of his femur that met his pelvic bone. As a result, he was confined to a wheelchair and could no longer walk the way he used to (with crutches and braces). The jury's pain and suffering award of $1,300,000 was affirmed on appeal.

Inside Information:

• Plaintiff had consumed a cup of Jamaican rum a half hour before the accident. While his attorney successfully argued that the hospital blood alcohol results should not be admitted in evidence, the defense was able to argue that it was obvious Mr. Isaac had been drinking alcohol.
• Fault for the crash was apportioned equally with the result being that plaintiff collects one-half of the damages assessed.

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On August 30, 2001 Kenzie Godfrey was an honors physics student about to begin her senior year at Hunter College in Manhattan. She was headed towards a NASA research position and then a PhD upon graduation. Her dreams turned into nightmares that day when the 21 year old was a rear seat passenger in a taxicab that was involved in an accident with another vehicle at 22nd Street and Third Avenue.

Kenzie was thrown forward and her head hit the plexiglass partition behind the cab driver. In pain with a lump on the side of her head and a swollen eye, she was taken by ambulance to the local hospital where she was treated and released. Within the ensuing week, though, Kenzie was disoriented and dizzy and her head pain was debilitating.

On September 6th, Kenzie sought treatment at the emergency room at which time a CAT scan was performed showing a temporal lobe contusion and a subdural hematoma.

Kenzie's injuries were thought to be minimal. Due to the hematoma, though, she was admitted for observation for two days and then discharged.

Unfortunately, Kenzie got worse. Much worse. Her symptoms cascaded with headaches, fatigue, problems concentrating, depression and anxiety. She finished one more semester of college but dropped out because she was unable to read anymore. She often remains inside her apartment, in the dark, due to extreme light sensitivity. Despite trying, she's been unable to work. She's taking extensive medication and participates in a traumatic brain injury (TBI) program that provides her with home care assistance. Her doctors testified she will get worse and worse and requires full time home health aid.

In her ensuing lawsuit against the drivers and owners of the cars involved in the crash, Kenzei's TBI was so bad that the jurors awarded nearly $11,000,00 in damages, as follows:

1. pain and suffering - $3,592,000 ($260,000 past - 7 years, $3,332,000 future - 48 years)
2. past and future lost earnings and benefits - about $1,200,000
3. future medical expenses - about $6,000,000

In Godfrey v. G.E. Capital Auto Lease, Inc. (1st Dept. 2011), the appellate court has addressed several liability and damages issues raised by the parties and ruled as follows:

• future pain and suffering damages should be reduced by $832,000 (from $3,332,000 to $2,500,000)
• there was sufficient evidence to sustain the jury's awards for medical expenses and loss of earnings and benefits
• the plaintiff's failure to use a seatbelt must be addressed in a new trial to determine the amount by which her damages should be reduced (the defense argued that her head injuries would not have been so severe had she been wearing a seatbelt)

The appellate court ordered a substantial reduction ($832,000) of the pain and suffering damages after setting out several details of plaintiff's brain injuries; however, there was no discussion at all as to the court's analysis of prior cases that were briefed by the parties. Here, then, are some of the cases:

• Paek v. City of New York (1st Dept. 2006) - $4,300,000 ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled pattern maker  who sustained a skull fracture and epidural hematoma resulting in severe cognitive dysfunction, depression and disabling headaches.
• Garrison v. Lapine (3d Dept. 2010) - $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years) [discussed previously, here] for a 44 year old housewife with post-concussive syndrome and axonal injuries manifesting in severely erratic behavior and disabilities.
• Popolizio v. County of Schenectady (3d Dept. 2009) - $2,100,000 ($350,000 past - 5 1/2 years, $1,750,000 future - 23 years) [discussed previously, here] for a 56 year old man who sustained TBI manifesting in cognitive function bordering on mental retardation and depression.

Inside Information:

• Perhaps the biggest issue in the case was buried in the middle of the court's opinion - ownership of the jeep. Under New York's Vehicle and Traffic Law Section 388, the owner of a vehicle is vicariously liable for the damages caused by the negligence of the vehicle driver. In 1995, Larissa Sgarlato leased the jeep from G.E. Capital Auto Lease, Inc. (GE)  and at the end of the four year term she wanted to buy the car. A bill of sale was signed as was a retail installment agreement setting forth the terms of the purchase agreement and in 1999 GE delivered to Ms. Sgarlato an executed certificate of title; however, GE was still listed as the owner on the date of the accident. Both the jury and the appellate court found, though, that the parties intended to transfer ownership from GE to Sgarlato and that when the accident occurred GE was no longer an owner.
• The ownership issue was so big because, as I hear it, there was only $100,000 of liability insurance covering the jeep. Without GE's "deep pockets," the practical limit of any recovery is the amount of insurance coverage.
• The defense did not call any physicians to testify as to plaintiff's TBI.

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Jorge Angamarca was 32 years old on October 23, 2003, working as a carpenter on the roof of a residential townhouse under construction in Brooklyn. He fell two stories through an improperly covered skylight hole and sustained catastrophic injuries.

Under New York's Labor Law Section 240(1), Angamarca was granted summary judgment as to liability against the owner of the building and its contractors because he had not been provided with any safety device or equipment, as required by the statute.

The parties could not agree on an appropriate damages settlement so the case went to a damages only trial.

On April 8, 2009, the Kings County jury awarded plaintiff $20,000,000 broken down as follows:

• Past pain and suffering - $100,000 (6 years)
• Future pain and suffering - $1,000,000 (40 years)
• Past loss of earnings - $74,013 (6 years)
• Future loss of earnings - $573,131 (23 years)
• Past medical expenses - $1,531,172 (6 years)
• Future medical expenses - $16,721,684 (40 years)

The parties each appealed the awards with plaintiff arguing that the pain and suffering awards were unreasonably low and the defense arguing that the future medical expense award was too high.

In Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011), the appellate court ordered a $3,900,000 increase in the pain and suffering awards as follows:

• past pain and suffering increased from $100,000 to $1,500,000
• future pain and suffering increased from $1,000,000 to $3,500,000

Here are some of the injury details:

• Skull fractures with intracranial subarachnoid and subdural hemorrhaging that required several surgeries including a temporal craniectomy, resection of lobes and placement of a cranioplasty
• Traumatic brain injury (TBI) leaving plaintiff with cognitive deficits affecting his speech, memory and emotions as well as left visual field neglect and spasticity of his left-sided extremities (arm and leg).
• Fractures of his spine at T7-8 requiring T6-9 anterior spinal fusion with structural humeral allograft, autograft and screw plate construct
• Displaced Colles fracture, right wrist (with malunion)
• Midshaft tibia and fibula fractures, right leg

Plaintiff was unconscious at the scene, remained in a coma for three months and was confined to the hospital for 45 days and a rehabilitation facility for 13 months before he started living in a group home for TBI patients.

By the time of trial, plaintiff was ambulatory but only with a severely awkward and restricted gait. Through expert testimony, he also claimed he was permanently incapable of taking care of himself and cannot live independently.

Inside Information:

• The defense called only one medical witness to testify - neuropsychologist Thomas Boland, Ph.D. Plaintiff called several experts including an orthopedic surgeon (Ira Esformes, M.D.), a neuropsychologist (Dustin Gordon, Ph.D.), a neurosurgeon (Douglas Cohen, M.d.), a vocational rehabilitation counselor (Ed Provder, Ph.D) and an economist (Frank Tinari, Ph.D.).
• The defense argued in summation that the $16,000,000 for future medical expenses suggested by plaintiff's experts was outrageously high and the product of incredible testimony, calculations and growth rates.
• Plaintiff was not a U.S. citizen; he'd come here from Ecuador two years before the accident and was undocumented. The defense was precluded from raising plaintiff's immigration status under the recent ruling in Balbuena v. IDR Realty LLC (Court of Appeals 2006) but the defense nonetheless argued, unsuccessfully, that the jury should be allowed to consider whether plaintiff intended to return to Ecuador where medical care is socialized and his future medical costs would be nowhere near the $16,000,000 awarded by the jury for lifetime assisted living.
•  Plaintiff's counsel asked the jury to award $16,000,000 for pain and suffering whereas defense counsel suggested an award of $1,500,000.

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After a morning of shopping on April 16, 2005, Mildred Manuel boarded a city bus to head home. At her stop, Rockaway Parkway and Schenck Street in Brooklyn, the 64 year old Ms. Manuel stepped out of the bus and fell because of a roadway hole, thereby sustaining serious knee injuries.

 A Kings County jury ruled that the bus driver had stopped in a dangerous place, in front of a rough spot in the roadway, thus rendering the city 100% liable for Ms. Manuel's injuries.

The jury then awarded plaintiff pain and suffering damages in the sum of $500,000 ($250,000 past - 4 years, $250,000 future) for the following knee injuries:

• large torn medial meniscus
• subchondral bone damage

As a result, Ms. Manuel underwent the following treatment:

• emergency room on date of accident
• physical therapy for several months
• arthroscopic surgery seven months post-accident (to repair the meniscal tear)

Ms. Manuel testified that she still has nagging pain, burning, clicking and popping in her knee and that she now no longer takes buses, has cut down on doing her laundry and cooking and has an unsteady gait.

Her doctor testified that Ms. Manuel has early arthritis from the accident, will  not likely to improve and in 5-10 years may need a total knee replacement.

Defendant appealed, arguing:

1. unsuccessfully, that the bus driver could not have been found negligent because Ms. Manuel herself couldn't even see the roadway defect (the hole) and that it was trivial as a matter of law;
2. successfully, that the damages verdict should be set aside because the trial judge should have told the jury that before it could award any pain and suffering damages it had to determine whether or not plaintiff's injuries qualified as "serious" under New York's Insurance Law Section 5102(d), one of the provisions of the so-called no fault insurance law; and,
3. alternatively, that $500,000 is excessive for pain and suffering damages under the facts in this case.

In Manuel v. New York City Transit Authority (2d Dept. 2011), the appellate court affirmed the liability verdict but the money judgment was reversed and the case sent back for a new trial on damages.

Under the law, when injuries arise out of the use or operation of a motor vehicle, a plaintiff has the burden of proving that her injuries meet at least one of the nine definitions of serious injury under Insurance Law Section 5102(d). That's a tough burden in many cases - especially those that do not involve broken bones and, as here, involve only torn ligaments.

For example, in McLoud v. Reyes (2d Dept. 2011), an appellate court dismissed the case without allowing a trial, ruling that the mere existence of a torn meniscus is not evidence of a serious injury in the absence of objective evidence of the alleged physical limitations resulting from the injury and its limitation.

Had the trial judge in Ms. Manuel's case required the jury to decide whether or not she met the threshold, they would have awarded no pain and suffering damages at all if they found that Ms. Manuel's injuries did not qualify as "serious." The new jury will now be instructed to answer the threshold question.

Since the entire damages case was sent back for a new trial, the defendant's claim that $500,000 was excessive was not ruled upon by the appellate judges.

Had the jury's damages verdict been ruled upon as to reasonableness of the amount (and if a new jury finds that the threshold has been met), it's likely that a $500,000 pain and suffering verdict would be affirmed as reasonable given the following cases involving similar knee injuries:

• DeCastro v. Andrews Plaza Housing Associates (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] - $600,000 affirmed in a trip and fall case for a 45 year old woman with a chondral defect fracture and anterior cruciate ligament tear who underwent arthroscopic surgery (and may need back surgery for a herniated disc)
• Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) - $650,000 in a trip and fall case for a 76 year old woman with torn menisci in both knees who fell and underwent arthroscopic surgery and may need a total knee replacement
• Diaz v.City of New York (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] -$1,400,000 in a slip and fall case for a 40 year old man with a torn meniscus who underwent  four surgeries and needs a total knee replacement

Inside Information:

• The defense orthopedic surgeon testified that Ms.Manuel had not suffered a torn meniscus at all; rather, he opined that her MRI merely showed minor wear attributable to normal aging and degeneration (not trauma).
• Prior to the accident, Ms. Manuel had been suffering from a brain tumor that caused her to rely on her daughter to help her with activities of daily living and the defense argued that some of plaintiff's post-surgical knee symptoms were traceable to an uneven recovery from her tumor.
• Plaintiff's attorney asked the jury to award her in excess of $1,000,000 in pain and suffering damages arguing that the injury "... crippled [plaintiff] for the rest of her life."

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Kristin Dupree had been a beautiful fashion model who married at the age of 23 and settled in Southampton, New York. When she was 29, Kristin underwent an incapacitating panic attack that led her to the office of James E. Giugliano, M.D., a local family practitioner. After 17 months of anti-depressant drugs and twice a week  "talk therapy," the married doctor and his patient began a nine month long sexual relationship.

Then:

Now:

Claiming malpractice and that the doctor ruined her marriage and caused her to suffer from emotional distress, Dupree sued Dr. Giugliano and in November 2008 a Suffolk County jury found that there was indeed malpractice and awarded her damages as follows:

• for mental distress - $200,000 ($150,000 past - 7 years, $50,000 future - 5 years)
• punitive damages - $166,000

The jury found that plaintiff was 25% at fault

Both the liability verdict and the damages amounts have now been affirmed on appeal in Dupree v. Giugliano (2d Dept. 2011).

Plaintiff claimed that she was a severely depressed patient who was compelled by the medical phenomenon known as "eroticized transference" to participate in sexual relations with her doctor.

The defense unsuccessfully argued that the sexual relationship was consensual - indeed provoked by the plaintiff - and in jury selection counsel suggested that this case was like the movie "Fatal Attraction" (in which a married man's one night stand comes back to haunt him when that lover stalks him and his family). Clearly, that suggestion did not sit well with the jurors.

Plaintiff proved that her anxiety and depression increased and became chronic because of the defendant's sexual exploitation. Instead of a quick cure, her expert psychiatrist opined that plaintiff would need another five years to get back to herself.

The jurors heard testimony as to plaintiff's mental distress damages:

• tremendous guilt over the sexual relationship
• marital discord and hostility leading to a bitter divorce
• loss of full custody of her 11 year old daughter
• loss of friendships and embarrassment

Plaintiff also claimed as damages:

• $155,000 for legal fees related to her divorce (jury awarded -0-)
• $435,000 for loss of financial support from her husband - an excavation and landscaping contractor (jury awarded $134,000, affirmed on appeal)

Inside Information:

• Dr. Giugliano admitted that he had sexual relations with Ms. Dupree; however he testified that they ended before she became his patient. Proof at trial, though, was conclusively to the contrary and the trial judge stated that the defendant "clearly provided certain testimony that was demonstrably false or otherwise erroneous."
• There were about 25 incidents of sexual contact in places as varied as defendant's office, plaintiff's car and a health club.
• Plaintiff's medical malpractice insurer refused to cover him for the claims in this lawsuit based on language in the policy that excluded from coverage any claim resulting from sexual intimacy or sexual exploitation. The disclaimer was the subject of a lawsuit and upheld on appeal in Physicians' Reciprocal Insurers v. Giugliano (2d Dept. 2007).

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In 2009, a Bronx County jury awarded a 16 year old girl $2,750,000 for crush injuries to her face after a fellow student hit her with a bat during softball practice at Walton High School (shown below).

Now, in Navarro v. City of New York (1st. Dept. 2011), the entire suit has been tossed out. The appellate court held that the risk of being hit by a practice swing of a bat was assumed by plaintiff, an experienced softball player who admittedly knew the risks inherent in the sport.

We discussed this case shortly after the trial, here, and predicted that the case would be dismissed on appeal.

The city had also sought a reduction of the $2,750,000 pain and suffering award but that issue was rendered moot by the liability reversal. The parties did, though, brief the damages issue (since the court could have affirmed the liability award and then would have had to address the amount of damages).

Plaintiff cited Storms v. Vargas (2d Dept. 1998) [$4,000,000 for 31 year old with massive facial injuries]  in support of her argument that her $2,750,000 verdict should be affirmed. In that case, though, the injuries were much more severe than those sustained by Ms. Navarro. Not only did the 31 year old police officer Stephen Storms undergo 26 surgeries for his injuries but also his left eye was surgically removed and he was left with an artificial eye.

Inside Information:

• The jury had apportioned liability 75% to the city and 25% to the student who swung the bat and they found that plaintiff had not been comparatively negligent.

• The accident happened in June, plaintiff returned to school in September and she resumed playing softball two months later

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On July 28, 2005, James Coleman was working as a subway track worker repairing tracks for the New York City Transit Authority (the TA). He was on a hydraulic lift platform that collapsed causing him to fall 25 feet to the ground below.

Workers on a hydraulic lift:

Coleman sued the TA for the serious injuries he sustained to his neck and back, including multiple bulging and herniated discs.

New York's Labor Law Section 240(1) generally imposes absolute liability upon premises owners when a worker engaged in repair work is injured in a height related fall due to inadequate safety devices. Accordingly, summary judgment was granted to Coleman in 2007 and his case proceeded to a damages only trial in 2008.

On November 7, 2008, a Bronx County jury awarded Coleman pain and suffering damages in the sum of $2,100,000 ($600,000 past - 3 years, $1,500,000 future - 20 years). The TA appealed, successfully arguing that the award was excessive.

MRI reports showed that Coleman sustained the following spinal disc injuries:

• herniated disc at C4-5,
• bulging annulus fibrosis at C5-6
• herniated disc at L5-S1.

The defense doctors and attorney argued that plaintiff's injuries were minor and any significant complaints of pain or disability he had were due only to degenerative changes in his spine.

EMG testing and nerve conduction studies, though, showed nerve injuries - radiculopathy at C5 and C7.

Plaintiff testified as to his current pain and limitations:

• constant pain which radiates down his right leg
• still takes narcotic medication
• gets steroid injections for his back pain
• cannot work
• cannot engage in sports he enjoyed such as bowling and basketball
• cannot carry shopping bags

Coleman never had any surgery for his injuries in this case but his doctor recommended that he undergo neck and back surgery - either a discectomy or laminectomy with fusion - if his symptoms continued unabated by conservative treatment.

In Coleman v. City of New York (1st Dept. 2011), the future pain and suffering award was reduced by $300,000. The total pain and suffering award now stands at $1,800,000 ($600,000 past, $1,200,000 future).

The only case on damages cited by the appellate court was Urbina v. 26 Court Street Assoc., LLC (1st Dept. 2007), a knee injury case that we discussed here. That case is not particularly relevant inasmuch as it ordered a reduction of the jury's pain and suffering award in the sum of $3,500,000 to $2,200,000 for a 31 year old man who sustained a severely fractured patella and a torn meniscus that required three surgeries.

Prior cases on damages that are relevant (i.e., that dealt with herniated disc injuries without surgical procedures as of trial) but were not even mentioned by the appellate court include:

• Lauro v. City of New York (1st Dept. 2009) - $810,000 affirmed for 49 year old with herniated discs at L4-5 and L5-S1
• Spetter v. Alliance Towing Corp. (1st Dept. 2009) - $230,000 affirmed for herniated disc at C6-7
• Sanabia v. 718 West 178th Street, LLC (1st Dept. 2008) - $300,000 (reduced from $400,000) for 57 year old with herniated discs at C3-4 through C6-7
• Browne v. City of New York (2d Dept. 2009) - $625,000 (reduced from $750,000) for 33 year old with bulging discs at C3-4 and C4-5.
• Brown v. City of New York (2d Dept. 2008) - $600,000 affirmed for 60 year old with mechanical back pain due to pulp protruding into his spinal canal
• Deshommes v. Hussain (2d Dept. 2008) - $700,000 (reduced from $1,200,000) for 42 year old with herniated disc at L5-S1 with nerve root compression and several bulges

Inside Information:

• The defense doctor, Robert Orlandi, M.D., an orthopedic surgeon, opined that Coleman hadn't even sustained a herniated cervical disc at all, just a sprained neck and degenerated discs predating the accident by many years.He was argumentative, often laughed derisively and made it clear he wasn't going to agree with questions posed by plaintiff's counsel, even before they were asked. The doctor was admonished by the trial judge repeatedly and defense counsel conceded that Dr. Orlandi was a "rather obstreperous witness" who made "wild and unsubstantiated charges" from the witness stand against plaintiff's counsel.
• The jury award for future lost earnings in the sum of $1,500,000 was thrown out by the appellate court because Coleman failed to prove with reasonable certainty that he'd be unable to work and earn at all. The defense conceded that Coleman could not return to heavy labor (he was earning about $45,000 a year with the TA) but pointed out that plaintiff himself never claimed he was completely unable to work and testified he'd tried to work as a mechanic in a motorcycle shop (too strenuous) and inquired about other jobs he thought he could do (no offers). Plaintiff's treating pain management doctor merely testified that he would "venture to say" that plaintiff couldn't go back to work. He was unaware of plaintiff's vocational abilities or education.

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Allison Hugh was 380 pounds in 2002 when she underwent successful gastric bypass surgery. Reduced to 185 pounds, the then 38 year old  Ms. Hugh was left with massive amounts of excess skin on her arms, abdomen and thighs.

To remove the unsightly and uncomfortable excess skin on her thighs,  medial thigh lift surgery was performed on March 2, 2005.

Claiming that the thigh lift procedure left her with significant deformities of her vagina's labium, Ms. Hugh sued her plastic surgeon  Ferdinand Ofodile, M.D. and in July 2009 a Bronx County jury awarded her a $60,000,000 pain and suffering jury verdict ($10,000,000 past - 4 1/2 years; $50,000,000 future - 37 years).

The trial judge ordered a reduction of the damages to $4,000,000 ($1,000,000 past, $3,000,000 future).

This week, in Hugh v. Ofodile (1st Dept. 2011), the appellate court orderd a further reduction - to $600,000 ($300,000 past, $300,000 future).

Ms. Hugh claimed that Dr. Ofodile:

• removed too much tissue and
• failed to inform her that he'd perform a medial, as opposed to a lateral, thigh lift and therfore there was a lack of informed consent

The jury found for plaintiff on both theories and the appellate court affirmed the liability decisions.

The appeal also addressed the enormous pain and suffering verdict:

• Plaintiff's counsel conceded that $60 Million was not sustainable. He suggested a reduction to $12,000,000.
• Defense counsel contended that the magnitude of the verdict suggested it could only have been the result of passion and prejudice against Dr. Ofodile and that the evidence of plaintiff's pain and suffering was minimal and, therefore, the damages should be reduced to a sum substantially less than $1,000,000.

Plaintiff's injuries included:

• abnormal appearance of her labia (graphic photos were shown to the jurors)
• discomfort during sexual relations
• emotional pain

The appellate court relied upon four prior cases in which "plaintiffs sustained injuries much more severe than those sustained by [Ms. Hugh]:

1. L.S.  v. Harouche (1st Dept. 1999) - $1,750,000 reduced from $4,000,000  for 18 year old who suffered from hypertrophy (enlargement) of her right labia majora resulting in unbearable pain when attempting sexual intercourse.
2. Rabinowitz v. Elimian (2d Dept. 2008) - $750,000 affirmed for 32 year old with vaginal deformity following episiotomy to facilitate delivery of baby.
3. Sutch v. Yarinsky (3d Dept. 2002) - $800,000 for 26 year old who underwent breast reduction surgery and was left with the loss of her entire left nipple areoa complex, a large scar and significant depression. Also, she underwent various debriding procedures.
4. Beverly H. v. Jewish Hospital and Medical Center of Brooklyn (2d Dept. 1987) - $700,000 reduced from $1,500,000 for woman who underwent episiotomy to shorten the time of her labor and was left with a rectovaginal fistula requiring four operations including a colostomy.

 Inside Information:

• Before undergoing surgery with Dr. Ofodile, Ms. Hugh consulted three other surgeons, one of whom recommended a full body lift, two of whom recommended a medial thigh lift. She said she underwent surgery with Dr. Ofodile because he specifically told her he'd perform a thigh lift that did not expose her to the well known risks of vaginal deformity and labial distortion that were described to her by other surgeons who'd recommended a medial thigh lift.
• Plaintiff did not assert a lost earnings claim. She was unemployed at the time of trial having discontinued two jobs she had after her bypass surgery - an event planner and a "plus size" model.
• Plaintiff's counsel will most likely reject the conditional reduction order and proceed to a new trial, encouraged by the 3-2 split decision with the minority opining that a reduction to $600,000 was too much and that $1,600,000 was an appropriate award.

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At about 2 p.m., on March 8, 2006, Maria Perone, then 18 years old, was on her way to the local Dunkin Donuts to get coffee for her office co-workers. As she walked across Bell Boulevard in Queens, Maria was struck in the crosswalk by a slow moving left turning city bus.

The impact knocked her to the ground and an ambulance took her to a nearby hospital emergency room where she complained of severe pain in her left shoulder and side. Maria was diagnosed with a left clavicle fracture and given a sling to wear for six weeks and a prescription for Vicodin.

A day later, Maria saw her pediatrician with complaints of pain not only in her left shoulder area but also in her left hip (where she had developed a large bruise). A week later, an MRI of the left hip revealed a fracture.

Maria sued the city and on November 16, 2009, a Queens jury awarded her pain and suffering damages in the sum of $180,000 ($65,000 past - 3 1/2 years, $115,000 future - 5 years).

Now, in Perone v. City of New York (2d Dept. 2011), an appellate court has agreed with the defense contention that the jury award was excessive and ruled that the $115,000 award for future damages should be reduced by $85,000 to $30,000.

The total award now stands at $95,000 ($65,000 past, $30,000 future).

As indicated in its decision, the appellate court was influenced by the facts that:

1. the clavicle fracture was only minimally displaced (where the bone snaps and moves, so that the ends are not lined up straight) and
2. the hip fracture was nondisplaced (where the bone cracks, but does not move and maintains its proper alignment).

Maria's hip fracture was actually a nondisplaced fracture of the greater trochanter (the non-weight bearing large bony end of the femur that sticks out from the side of one's hip).

The court also noted that Maria's treatment for her injuries was minimal (sling for six weeks, minimal physical therapy, no surgery), she had no arthritis, she did not limp and her fractures had healed completely.

In arguing for an affirmance of the jury verdict, Maria's attorneys noted that:

• she experiences pain a few times a week as well as upon changes in the weather, when jogging and when wearing high heels
• her physical medicine and rehabilitation doctor (Kioomars Moosazadeh, M.D.) testified that Maria still has some atrophy and and instability in her shoulder with respect to which he said she has a guarded prognosis

In arguing (successfully) for a reduction of the jury verdict, the defense noted that:

• there was no medical testimony establishing permanence or arthritic changes
• the evidence indicated that plaintiff's injuries have not had much of an impact on her activities
• the defense doctor (orthopedic surgeon Andrew Miller, M.D.) testified that he did not detect any atrophy, irritability or crepitation of Maria's shoulder

Two of the cases cited by the court are recent and relevant.

1. In Shaperonovitch v. City of New York (2d Dept. 2008), a woman sustained fractures of her acetabulum bone in her hip. No surgery was required, the bone healed within two months and she was able to walk unassisted. The jury's $102,000 pain and suffering award ($51,000 past, $51,000 future - 31 years) was found reasonable and affirmed.
2. In Vanini v. Ramtol Service Corp. (1st Dept. 2005), a man sustained a clavicle fracture which had healed and there was no medical proof to support a claim of permanence or residual impairment. The jury awarded $10,000 for pain and sufferng (past only) and the appellate court ruled that it was fair and should not be disturbed.

Inside Information:

• Plaintiff fractured her left clavicle in the past as well -  when she was four years old.
• Plaintiff's doctor testified that there was no indication of a need for surgery, "but I cannot say in the future what will happen." "I can't say at this moment."

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On October 12, 2007, Tina Holstein delivered her third child, without complications, at Community General Hospital in Syracuse. Within a couple of hours, she was nauseous and vomited so the nurse on duty administered an intramuscular injection of Phenergan (an anti-emetic).

Generally, an injection into the buttocks is delivered using the upper outer quadrant, so as to avoid the sciatic nerve:

In Mrs. Holstein's case, the injection was delivered in the wrong location - hitting the sciatic nerve - and she ended up with unremitting pain in her back and down her leg.

The sciatic nerve is the largest and longest single nerve in the body, about as big around as a man's thumb at its largest point. It originates in the lower spine as nerve roots exit the spinal cord and extends all the way down the back of the leg to the toes.

In an ensuing lawsuit against the hospital (and the nurse who gave the shot), on May 28, 2010, an Onondaga County jury found medical negligence against the defendants and awarded the then 34 year old Holstein pain and suffering damages in the sum of $1,690,000 ($140,000 past - 2 1/2 years, $1,550,000 future - 50 years).

The defense claimed in a post-trial motion that (a) there was insufficient evidence to warrant the jury's finding that the nurse was negligent and (b) the verdict was excessive. The trial judge denied the motion in all respects.

Last week, the verdict was affirmed on appeal in Holstein v. Community General Hospital (4th Dept. 2011).

The appellate court neglected to mention any of the injuries and disabilities sustained by the plaintiff:

• pain, especially in her back and leg, so bad and constant that at times she wished she could get her leg amputated
• altered sensation, excruciating sensitivity and burning
• difficulty sleeping, waking up several times a night
• unable to sit or stand for any extended period of time
• inability to bend
• inability to play with her kids

While plaintiff required narcotic medication for her pain and her medical expert testified that her conditions are permanent and will get progressively worse, the most significant treatment she'd undergone was a series of nerve blocks, she'd undergone no surgery (though a surgically implanted spinal cord stimulator was recommended) and there was no claim that she'd need any in the future.

The defense argued that plaintiff's injuries were not serious - that she was hardly limited in her daily activities (she'd returned to work as a nurse, albeit in a limited capacity), was not debilitated in any manner and her complaints of pain were subjective only.

A nerve conduction study, performed just before trial, though, showed positive findings of S1 radiculopathy (a condition due to a compressed nerve in the spine that can cause pain, numbness, tingling or weakness along the course of the nerve). In view of a prior negative finding, this, plaintiff's counsel argued, was objective evidence indicating that Mrs. Holstein's condition was worsening.

Inside Information:

• The defense argued on appeal that the trial judge failed to poll the jury, thus requiring a new trial. Three of the appellate court judges rejected that argument and voted to affirm, while two dissenters agreed with the defense and would have sent this case back for a new trial on the issue of polling (where the trial judge asks each individual juror if the verdict set out on the verdict sheet - already signed by each - is indeed his or her verdict).This 3-2 split means that the Court of Appeals (New York's top level appellate court) will be asked to resolve the polling issue (about which we wrote in 2009, here, when the Court of Appeals ruled in Duffy v. Vogel).
• The jury verdict was reached at about 4:30 p.m. on the Friday of Memorial Day weekend, four hours after beginning deliberations and within only 40 minutes or so of having been given a read back of medical testimony. This, defense counsel argued (unsuccessfully), was evidence of juror confusion and a rush to judgment.
• The $1,690,000 verdict is significant in view of the paucity of objective proof of plaintiff's injuries and the fact that plaintiff conceded there will be no surgery required. This is an outstanding result for plaintiff's counsel, Jeff D. DeFrancisco, a leading medical malpractice lawyer from Syracuse.

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On March 7, 2003, a cold, icy and windy morning, Julio Alieca took a city bus to visit his mother in the Bronx. The driver stopped near the intersection of 174th Street and Harrod Avenue and the 33 year old Alicea stepped out of the rear door down onto accumulated snow in the street, slipped, fell down and sustained a bimalleolar fracture of his ankle (where the lateral malleolus and the medial malleolus are both broken and the ankle is unstable).

In the ensuing lawsuit, on April 1, 2009, a Bronx jury found the city and its transit operating authority fully at fault for the accident because (a) the driver stopped in the middle of the roadway rather than at the designated bus stop and (b) the city had failed to remove the snow which was from a two week old storm. Liability was apportioned 25% to the driver and 75% to the city.

After ruling on liability, the jury awarded pain and suffering damages in the sum of $941,760 ($158,960 past - 6 years, $782,800 future - 38 years).

The city made a post-trial motion seeking dismissal of the entire case notwithstanding the verdict and plaintiff cross-moved contending that the verdict for past pain and suffering was inadequate. The trial judge denied both applications.

Now, in Alicea v. City of New York (1st Dept. 2011), the liability verdict has been upheld but the plaintiff's request to increase his past pain and suffering award has been granted. The appellate court found that $158,960 for plaintiff's past pain and suffering was inadequate and ordered a conditional increase to $400,000. Thus, the total pain and suffering award now stands at $1,182,800 ($400,000 past, $782,800 future).

In addition to the malleoli fractures, plaintiff sustained a syndesmotic injury - there was a tear in the syndesmotic ligament that prevented the tibia and fibula from coming together. Therefore, a large screw had to be surgically inserted to allow the ligament to heal.

Mr. Alicea was required to undergo three surgical procedures:

1. Open reduction internal fixation (ORIF) three days after the accident in which a 10 hole metal plate and screws were installed in the ankle, as well as the syndesmotic screw from the fibula across the tibia
2. Removal of the syndesmotic screw, about a year after the accident
3. Removal of all of the remaining metal screws and plates, about four years after the accident

What the ankle looks like after typical ORIF for a bimalleolar fracture:

Mr. Alicea was left with permanent and significant loss of motion in his ankle, pain, stiffness and difficulty walking. He could no longer engage in activities with his children such as martial arts training and running with his teen-age son. At the time of trial, he walked with a limp and his medical expert testified that his condition would not improve and that Alicea already has post-traumatic arthritis that will probably require ankle fusion surgery.

The appellate court cited three ankle injury cases to support its ruling that past pain and suffering damages should be increased from $158,960 to $400,000:

1. Hopkins v. New York City Transit Authority (1st Dept. 2011) - $625,000 affirmed for a 22 year old woman with trimalleolar fractures, ORIF and arthritis [discussed by us, here]
2. Colon v. New York Eye Surgery Assoc., P.C. (1st Dept. 2010) - $950,000 for a 55 year old woman with an ankle fracture that developed residual reflex sympathy dystrophy (RSD) [discussed by us, here]
3. Lowenstein v. Normandy Group LLC (1st Dept. 2008) - $1,150,000 for a 51 year old with a trimalleolar ankle fracture requiring surgery and shoulder fractures requiring immobilization [mentioned by us, here]

 Inside Information:

• The defense did not put on any medical expert to testify with the result that the only medical testimony was from plaintiff''s expert, orthopedic surgeon Stuart Remer, M.D.
• Plaintiff had been an armed security guard who was out of work for six months due to his injuries from the accident.

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