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New York Injury Cases Blog

Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice Awards

Damages Verdict for Pre-Death Pain and Suffering Affirmed in Yard-Work Vehicle Tragedy

Posted in Wrongful Death

On March 11, 2007, Elias Fasolas was operating  a Bobcat S175 skid-steer loader with a bucket attachment when a limb from a nine-foot-tall tree entered the open operator cab, crushing him against the rear and ceiling of the cab and killing him.

Mr. Fasolas was 28 years old, lived with his parents in Port Jefferson and on the day of his death had been using the Bobcat to clear ivy and brush in their yard, expand a garden there and build a shed for garden tools. The accident was  not witnessed but it was clear to all that the tree entered the cab from beneath the bucket and went under a safety bar as Elias was moving the Bobcat forward. He was pronounced dead at the scene.

In the ensuing lawsuit against the manufacturer, distributor and the company from which Elias rented the machine, Elias’s estate claimed that the Bobcat was defectively designed, unreasonably dangerous and defective because it did not incorporate  as a standard safety feature a “special applications kit” (which, with windows and a front door, would have restricted material from entering the cab). Also, they claimed the loader was defective because it was rented without adequate warnings and training for its safe use.

The Queens County jury returned a verdict  that the loader was defectively designed and rented without adequate warnings and liability was apportioned 25% to the manufacturer, 25% to the distributor and 50% to the equipment rental company. The jury then awarded damages for pre-death conscious pain and suffering in the sum of $1,000,000.

In Fasolas v. Bobcat of New York, Inc. (2d Dept. 2017), both the liability and damages determinations have been affirmed.

Plaintiff’s emergency medicine expert, Howard Schwartz, M.D., testified that in his opinion the decedent experienced conscious pain and suffering for approximately five minutes.  The defense did not present any expert testimony as to pain and suffering.

Here are the trauma details, each one of which plaintiff’s expert testified caused conscious pain:

  • initial blunt (non-penetrating) impact of tree limb to abdomen and resultant internal tearing of abdominal wall
  • laceration of liver due to tree limb pressure
  • fractures of sternum and ribs five though nine
  • small cracking of thyroid cartilage due to head positioning from head being pressed down to decedent’s chest
  • congestion in temporal and eyeball regions from increasing pressure in abdomen

Dr. Schwartz opined that each of the traumatic injuries above caused pain, some excruciating, but not death. Mr. Fasolas died as a result of the compression of his torso but, because his abdomen had only 500 milliliters of blood, the doctor concluded that cardiovascular circulation continued for as much as 10 minutes after the initial impact and that lapse into unconsciousness and death occurred five minutes earlier.

Dr. Schwartz also opined that Mr. Fasolas experienced pre-death terror since he was conscious during the five minutes the tree limb was compressing into him and there were photographs showing the position of his arm in such a manner that he concluded were indicative of the decedent trying to “remove himself from the tree.”

The jurors awarded no damages to the decedent’s parents for loss of earnings or loss of  services and the trial judge declined to charge the jury (meaning the claim was not presented to them for evaluation) as to the parents’ claim for loss of financial support. Before his death, the decedent paid significant expenses of his parents (such as their monthly mortgage payments) from the income of a diner he owned.  In declining to charge the jury as to this element of pecuniary loss, the trial judge stated that “there was no break in the chain” of the payments to the parents from the diner since its corporate stock  passed to them upon their son’s death (he was unmarried and had no children) . The appellate court upheld this ruling without comment.

Inside Information:

  • The lawsuit was brought in Queens County based upon the residence of the administrator of the decedent’s estate, his sister.

 

Judgment Affirmed for Motor Vehicle Passenger with Non-Surgical Herniated Lumbar Disc

Posted in Back Injuries

On May 21, 2010, Elizabeth Eastman, a home health aide for Access Nursing Services, was a rear seat passenger in an ambulette that was transporting her client from a nursing home in Manhattan to her client’s residence in Harlem. The ambulette collided with another vehicle on the FDR Drive in Manhattan.

As a result of the accident, Ms. Eastman, then 40 years old, struck the back of the driver’s seat before landing on the floor of her vehicle. She claimed that she felt immediate pain in her lower back but her driver did not wait for the police to arrive at the scene and he drove the client home. Ms. Eastman, a Brooklyn resident, then went to a hospital there complaining of back pain. She was treated and released with a prescription for Motrin.

In the ensuing lawsuit, a Kings County jury found both drivers liable for the crash – the ambulette driver 60%  and the other driver (who had been attempting to overtake the ambulette) 40%. In the damages phase of the trial, the jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $200,000 ($150,000 past – four and a half years, $50,000 future – one year).

In Eastman v. Nash (2d Dept. 2017), the judgment has been affirmed.

As set forth in the court’s decision, plaintiff sustained a herniated disc at L4-5. Here are the additional injury details:

  • L4-5 herniation with indentation on the thecal sac; bulging disc at L5-S1
  • lumbar spine radiculopathy
  • lumbar spine range of motion deficits up to 50%
  • 10 months of physical therapy
  • 10 months unable to return to work
  • unable to do any heavy lifting or sit still in a chair without pain
  • unable to resume jogging (can only walk short distances without pain)

A neurologist testified on plaintiff’s behalf and opined that her injuries are permanent and she will need future medications, physical therapy, chiropractic treatment and acupuncture.

The defense medical experts included a diagnostic radiologist, a neurologist and an orthopedic surgeon. They conceded that plaintiff’s MRI exam eight weeks after her accident showed a herniation but contended it was degenerative and preceded the crash and that plaintiff sustained only insignificant and non-permanent soft tissue injuries and no surgery has been recommended.

Inside Information:

  • Plaintiff had been laid off from similar employment earlier in 2010 and at the time of the accident had applied for unemployment benefits because there was no work for her (this was the first day of her employment for the client).  Ten months after the accident, plaintiff returned to work with another agency (on a light duty basis). There was no wage loss claim in the lawsuit.
  • Plaintiff’s treating orthopedist for the first six months after the accident, David Lee Hsu, M.D., was indicted in 2011 in connection with health care billing scams and pled guilty to conspiracy to commit health care fraud. He surrendered his medical license in 2013. He was not called to testify at trial. Defendants sought to introduce evidence of his conviction but the trial judge sustained plaintiff’s objection and did not allow evidence of either the conviction or the fact that the doctor’s clinic where plaintiff treated with him closed as a result.
  • There was little or no visible damage to either vehicle and in her report of the accident shortly thereafter, plaintiff described it as a “fender bender.”

 

 

Medical Malpractice Verdict in favor of Colonoscopy Patient Affirmed as to Liability and Damages

Posted in Medical Malpractice

On July 30, 2008 Raymond Gaspard, then 59 years old, underwent his first colonoscopy. A suspicious polyp was discovered and Mr. Gaspard was referred to a colorectal surgeon who performed a second colonoscopy the next day. The polyp was too large to remove at that time; instead a CT scan was scheduled for five days later at which time a perforation in his colon was discovered.

Mr. Gaspard sued the colorectal surgeon alleging that the doctor failed to advise him regarding the signs and symptoms of a colon perforation following a colonoscopy, and then failed to properly treat the infected perforation after it had been detected in the CT scan.

A Kings County jury rendered a verdict in favor of the plaintiff and awarded him pain and suffering damages in the sum of $1,000,000 ($600,000 past – six years, $400,000 future – 16 years). Defendants’ post-trial motion to set aside the verdict was denied in a thorough, well-reasoned decision and, in Gaspard v. Aronoff (2d Dept. 2017), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • acute peritonitis and sepsis (with night sweats, fever, diarrhea, fatigue and extreme, agonizing stomach pain)
  • emergency Hartmann’s procedure  (to remove a foot-long section of the sigmoid colon and create a colostomy) with one week hospital admission

  • visiting nurses for one month to manage the colostomy bag (that was messy, smelly, cumbersome and embarrassing)
  • second surgery to reverse the colostomy four months after it was placed (with two week hospital admission due to complications from a bowel obstruction including fevers, projectile vomiting and extreme agony)
  • third surgery two years later – incisional hernia repair (due to improper healing of the surgical wound)
  • unable to return to work until early 2009
  • continuing episodes of incontinence and abdominal pain
  • diminished energy and stamina with resultant inability to return to prior levels of activity

Inside Information:

  • Defendants contended that plaintiff was not entitled to any recovery for past pain and suffering because there was no evidence he sustained pain and suffering beyond the colonoscopy complication. They also argued that there was minimal damage because plaintiff needed a colectomy in any event due to the mass that led to the CT scan.
  • Plaintiff’s pre-trial settlement demand was $500,000; there was no offer.
  • The jury deliberated for only 20 minutes before returning its verdict.
  • The trial featured two of New York’s leading and most respected medical malpractice firms – Godosky & Gentile, P.C. for plaintiff and Martin Clearwater & Bell, LLP for the defendants.

 

Substantial Pain and Suffering Award Affirmed in Pedestrian Knockdown Case

Posted in Ankle Injuries, Knee Injuries

On April 6, 2011, at about 9:30 p.m., Claudia Shepherd was struck and run over by a sanitation truck in the crosswalk at the intersection of Nostrand Avenue and Fulton Street in Brooklyn. The driver fled the scene but an eyewitness chased the truck and identified it to the police.

The Scene of the Accident

In the ensuing lawsuit against the driver and owner of the truck, defendants claimed their truck was not involved in the accident.  The driver admitted that the intersection was within his route that night but he denied hitting the plaintiff. The jurors found otherwise on both counts and returned a verdict of full liability against the defendants. The matter then proceeded to a trial on damages and plaintiff was awarded $3,000,000 for her pain and suffering ($1,000,000 past – four years, $2,000,000 future – 55 years).

In Shepherd v. T.I.A. of New York, Inc. (2d Dept. 2017) both the liability and damages verdicts have been affirmed.

Ms. Shepherd, then 21 years old, sustained serious knee and ankle injuries, none of which are mentioned in the court’s decision. Here are the injury details:

  • Left Knee – patella and fibular head fractures with dislocated joint, ruptured ligaments and peroneal nerve damage  requiring open reduction internal fixation surgery with the insertion of a long surgical screw and washer
  • Left Ankle -lateral malleolus and fibular fractures with compromised articular surface requiring open reduction internal fixation surgery with the insertion of a metal plate and seven screws
  • 20 day hospital admission (discharged using wheelchair after which for several months plaintiff required a long leg brace, crutches and a cane which she relied upon for eight months and still uses from time to time

  • Extensive physical therapy over five months
  • Future surgery needed to remove surgical hardware to alleviate pain
  • Post-traumatic arthritis in both the knee and ankle
  • Future ankle fusion surgery
  • Continuing pain and disabilities in knee and ankle leaving plaintiff unable to walk more than five blocks or stand for long periods or enjoy dancing or racquetball as she used to before the accident
  • Post-traumatic stress disorder (“PTSD”) – nightmares, irritability, social withdrawal and depression

The defense contended that plaintiff made a good recovery, she will not need ankle fusion surgery, over-the-counter medication could alleviate plaintiff’s pain completely and the PTSD claim was not significant (because plaintiff underwent only a few months of mental health treatment, never took any medication for PTSD and it had very little impact on her scholastic or career endeavors, or activities of daily living).

The jurors also awarded $350,000 for future medical expenses. This award was reduced on appeal to $17,800 because there was no adequate  proof of future medical costs other than $17,800 for future orthopedic surgeries. Plaintiff argued on appeal that the award should be sustained because the jury must have included about $300,000 in medical expenses for future treatment of PTSD. In his closing argument, though, plaintiff’s attorney requested only $10,800 for the hardware removal surgery.

Inside Information:

  • At the time of the accident, plaintiff was a student at York College in Queens. She withdrew from classes for the spring semester and was unable to attend summer classes. She returned to college in September of 2011 and graduated two years later with a degree in accounting. At the time of trial, she was working two jobs – at a day care center in Brooklyn and for an accountant in Queens. There was no claim for lost earnings.
  • In their closing arguments, defense counsel suggested a pain and suffering award of $150,000 while plaintiff’s counsel suggested the exact $3,000,000 awarded by the jury.
  • Defense counsel argued on appeal that the pain and suffering award should be reduced to “under $1 million.”

 

Significant Award for Future Medical Expenses Affirmed despite Modest Awards for Pain and Suffering in Car Crash Case

Posted in Economic Damages, Loss of Consortium Damages, Neck Injuries, Shoulder Injuries

On August 7, 2010,  Anil Sehgal was preparing to stop at a red light at the intersection of Fifth Avenue and West 57th Street in Manhattan when his car was struck from behind by another vehicle. Mr. Sehgal’s wife, Renu, was in the front passenger seat. Both claimed serious injuries as a result of the crash and sued the other driver (and the owner of the other car).

Plaintiffs moved for partial summary judgment on the issue  of liability. After denial, the motion for summary judgment was granted on appeal following which a damages only trial was held.

The Queens County jurors returned verdicts awarding Mr. Sehgal pain and suffering damages in the sum of $200,000 ($150,000 past – three years, $50,000 future – 18 years). They also awarded him damages for future medical expenses in the sum of $505,050 (18 years) and his wife damages for her loss of her husband’s services/consortium in the sum of $100,000 (past only).

In a  post-trial motion, defendants argued that both the future medical expenses and loss of services awards are excessive and against the weight of the evidence. The trial judge denied the motion and on appeal In Sehgal v. www.nyairportbus.com, Inc. (2d Dept. 2017), both awards have been affirmed.

Here are the injury details as to Mr. Sehgal:

  • herniated disc at C5-6 requiring anterior cervical discectomy, corpectomy and fusion surgery with instrumentation and allograft
  • herniated discs at L1-3
  • partial thickness tearing of right shoulder rotator cuff requiring arthroscopic surgery
  • unable to bend, stand for long periods of time or lift anything heavy

Plaintiff’s claim for an award of future medical expenses was supported by the testimony of Alexandre DeMoura MD. (his spine surgeon) and Ali Guy, M.D. (a physiatrist who prepared a life care plan detailing the expenses including many years of medical treatment, physical therapy, diagnostic testing and epidural injections, as well as future back surgery and an additional neck surgery).

The only expert testimony for the defense was from orthopedic surgeon Gregory Montalbano M.D.  (who opined that Mr. Sehgal’s right shoulder prognosis is very good and should not be problematic in the future, he sustained at most a cervical strain or sprain rather than a herniated disc which in any event was degenerative – not traumatically induced – and he  has no permanent disability or significant limitation).

The defense had intended to impeach plaintiff and Dr. Guy regarding the life care plan by showing that plaintiff’s attorneys, by whom he was employed in a clerical position, had referred him to Dr. Guy “as part of an attempt to build up the monetary value of his claim and not for genuine medical treatment.” At the start of trial, though, the judge granted plaintiff’s application to preclude the defense from asking Mr. Sehgal questions as to how he was referred to Dr. Guy (or his other medical providers).

As to the loss of consortium claim, plaintiff, then 59 years old, testified that he’s become dependent upon his wife and others for many activities of daily living – he can no longer mow the lawn, clean the cars, vacuum the house or help his wife with cooking. Mrs. Sehgal testified that his injuries have affected “his love and affection.” The defense noted that Mr. Sehgal missed only 45 days from work due to his injuries and claimed that his condition has greatly improved and there was no evidence that he could no longer provide the benefits of marriage, including, love, companionship, society and sexual relations.

Inside Information:

  • Mrs. Sehgal claimed disc herniations at C3-4 and L5-S1; however, the jurors determined that her injuries did not meet the serious injury threshold under Insurance  Law Section 5102(d) and they awarded her no damages. She did not appeal.
  • In closing arguments, plaintiff’s attorney asked the jurors to award Mr. Sehgal $1,250,000 in damages for his pain and suffering and Mrs. Sehgal $150,000 for her pain and suffering plus $100,000 for her loss of consortium claim; defense counsel argued that the jurors should “not award the Sehgals anything” because neither sustained a serious injury from the accident.

Huge Increase in Pain and Suffering Damages Award for Construction Worker in Ladder Fall Accident

Posted in Back Injuries, Wrist Injuries

On June 3, 2005 Carlos Cano fell to the ground from the fourth rung of an unsecured ladder he was using to caulk the exterior walls of a gas station construction site in Cortlandt Manor.

The accident site

Mr. Cano, then 33 years old, had been employed by the project’s general contractor which specialized in the construction of gas stations and provided the ladder. He sued the owner of the site under the provisions of Labor Law Sections 240(1) and 241(6). The Suffolk County jurors returned a verdict finding that the owner was at fault for violating Section 241(6) and they awarded plaintiff pain and suffering damages in the sum of $475,000 ($100,000 past – nine years, $375,000 future – 31 years).

In Cano v. Mid-Valley Oil Co., Inc. (2d Dept. 2017), the pain and suffering damages award was increased to $3,500,000 ($1,000,000 past, $2,500,000 future).

As indicated in the court’s decision, plaintiff sustained significant wrist and back injuries requiring several surgeries. Here are the injury details:

Wrist:

  • severe, comminuted intra-articular fracture with external fixation surgery
  • implantation of pins, screws and K-wire to stabilize the fracture; surgery to remove the hardware
  • permanent loss of range of motion, post-traumatic arthritis
  • future need for either wrist replacement or fusion surgery

Back:

  • compression fracture of thoracic spine at T10-11 resulting in arthritis
  • disc herniation requiring fusion and decompression surgery at L5-S1 with insertion of pedicle screws and  side bone grafting
  • non-union and failed back syndrome requiring fusion surgery at L4-S1
  • permanent loss of range of motion and progressively worsening pain
  • future need for L3-4 revision surgery

Plaintiff claimed he was permanently unable to return to work. He had been earning $600 per week (cash off-the-books) and his attorney asked the jury to award past and future lost earnings in the sum of $1,720,000; the jurors, however, awarded only $310,000.

Plaintiff also claimed entitlement to awards for past and future medical expenses; the jurors awarded $850,000 but the appellate court ordered a reduction to $500,000.

One of the main issues throughout the litigation was plaintiff’s status as a so-called undocumented immigrant or illegal alien. He’d come to the United States from Colombia in 2001 and overstayed his visa while working to send money back to his wife and five children back home. The trial judge allowed defendants to present evidence as to plaintiff’s immigration status; the appellate court, though, held that summary judgment as to liability should have been granted before trial in plaintiff’s favor despite the immigration issues (and the fact that plaintiff failed to pay income taxes).

Inside Information:

  • Defendants did not present any evidence at trial. Plaintiff offered the testimony of a specialist in hand surgery (who also had experience in back surgery) and a vocational rehabilitation expert.
  • Plaintiff admitted that he lied about his identity at the hospital in order to obtain health insurance coverage.
  • In closing arguments, plaintiff’s attorney requested a pain and suffering award of $16,500,000. Defense counsel argued that plaintiff’s back pain and disabilities were related to a congenital deformity, suggested he was operated on for purposes of litigation and stated plaintiff should be awarded only what is “fair and reasonable.”

 

Economic Damages Addressed on Appeal in Wrongful Death Case

Posted in Wrongful Death

On December 14, 2011, Suzanne Hart was entering the elevator in the lobby of the building where she worked, at 285 Madison Avenue in Manhattan, when the elevator malfunctioned and suddenly shot upward while its doors were still open. The moving elevator struck her at about knee level causing her to fall into the elevator cab which continued to move upward, trapping Ms. Hart between the elevator door saddle and the hoist way wall. Ms. Hart was crushed and died of her injuries at the scene.

The elevator lobby at the scene shortly after the December 2011

In the complaint in the ensuing lawsuit by decedent’s father against the building manager and the elevator service and maintenance company alleging they negligently serviced the elevator, there were two damages claims. The first was for decedent’s pre-death pain and suffering; the second was for economic damages sustained by decedent’s distributees. The defendants moved for, and were granted, partial summary judgment dismissing the wrongful death cause of action (in which Ms. Hart’s father claimed he sustained financial damages as a result of his daughter’s death).

On appeal in Hart v. Transel Elevator and Electric, Inc. (2d Dept. 2017), the lower court’s decision was reversed and the wrongful death economic damages claim was reinstated. Defendants’ motion for leave to reargue the reversal, or for leave to appeal to the Court of Appeals, was denied.

Under Estates Powers and Trusts Law Section 5-4.3 and as set forth in Pattern Jury Instruction 2:320, other than damages for a decedent’s pre-death conscious pain and suffering,  the law limits damages relating to the death of an adult child to monetary injuries. A jury may not make an award for sorrow, mental anguish, injury to feelings, or loss of companionship. In deciding the amount of damages, jurors are instructed to consider the character, habits and ability of the decedent, the circumstances and conditions of her parents, and the services she would have performed and determine the monetary value to the parents. Pecuniary losses for the purposes of wrongful death damages are not limited to financial support and may include loss of services and loss of voluntary assistance.

As set forth in the court’s decision, Ms. Hart died without a spouse or children and her father was the sole distributee and the administrator of her estate (her mother died in 1992). Mr. Hart was 71 years old at the time his daughter died at the age of 41 years.  She’d been an advertising executive at a big firm, involved in business development working four days a week at an annual salary of about $130,000.

Mr. Hart testified that Suzanne gave him enormous psychological support and that while she did not provide him any financial support (he did not need it), they had an understanding that she would make financial contributions to him in the future and would take care of him in his old age. Furthermore, plaintiff noted, Suzanne had already shown she would take care of and support her parents when needed – in 1992, when her mother was suffering from breast cancer (which eventually caused her death), Suzanne took a year off from college to take care of her mother.

Inside Information:

  • The judge heard oral argument on the motion but did not issue a decision or discuss the basis for his decision.
  • Mr. Hart had been living in Florida at the time of his daughter’s death but visited with her several times a year at her home in Brooklyn and spoke with her weekly.
  • An investigation by the city revealed that several maintenance company mechanics had worked on the elevators during the morning of the accident right up to a few minutes before it and had disabled a safety switch that would stop an elevator from moving when the doors remained open. Also, they failed to place caution tape inside the elevators and to call the city’s Department of Buildings before returning the elevators to service, as required by law.

Jury Verdict Reduced for Parking Garage Attendant Struck by Car

Posted in Back Injuries, Knee Injuries

On August 16, 2006 Arnulfo Ahumada was working as a parking attendant in a parking garage at NYU Langone Medical Center at 530 First Avenue in Manhattan when he was struck by a rolling car whose driver had mistakenly left it on the ramp with its gear in neutral instead of park.

Mr. Ahumada, then a 51 year old Bronx resident, claimed significant knee and low back injuries and sued the driver of the car. At trial in August 2015, the judge rendered a directed verdict on liability against the driver and the matter then proceeded to an assessment of damages. The Bronx County jury awarded plaintiff pain and suffering damages in the sum of $750,000 ($500,000 past – nine years, $250,000 future – 10 years). The trial judge agreed with the defense that the awards were excessive and he ordered that the verdict be set aside and a new trial be held on damages. Plaintiff’s appeal followed.

In Ahumada v. Drogan (1st Dept. 2017), the appellate court agreed with the trial judge that the verdict was excessive but found that the judge should have allowed pain and suffering damages in the sum of $450,000 ($300,000 past, $150,000 future).

The decision mentions only that plaintiff’s injuries included a fractured fibula. Here are the injury details:

  • ambulance transport to hospital with complaints of bilateral knee pain and low back pain; treated and released to home with crutches and pain medication
  • admitted to hospital in the ensuing week for two days for possible blood clots in left leg
  • non-displaced left proximal fibular fracture
  • left knee torn meniscus requiring arthroscopic surgery  on 10/26/06

  • on crutches eight months, cane one month
  • out of work seven months
  • extensive physical therapy regimens both before and after surgery
  • herniated disc at L4-5
  • continuing knee and back pain
  • unable to resume bicycle riding, playing soccer, running or prolonged walking or standing

The jury heard extensive medical testimony on behalf of each side including expert orthopedic surgeons Leonard Harrison, M.D. for plaintiff and Mark I. Pitman, M.D. for defendant.

The defense  argued that the fibula fracture was insignificant (especially because it had not been diagnosed until several days later when plaintiff was examined for possible blood clots in his leg), the herniated disc was also insignificant (because there was no impingement on any nerve root) and the meniscus was merely shaved down and not repaired. Furthermore, the defense argued that plaintiff returned to work without restrictions seven months after this accident, hadn’t had any medical treatment for his knee injury for almost eight years and that a subsequent car accident (on 10/5/10) was the cause of any knee or back pain or disability that still existed as of trial and he had a pending lawsuit for that accident in which he’d be compensated for all of his injuries.

Plaintiff countered that the 2010 accident had nothing to do with his left knee or back (the injuries in the subsequent accident were to plaintiff’s neck and shoulder) and that his leg and back injuries are permanent, painful and disabling with the possibility of needing a total knee replacement some time in the future.

Inside Information:

  • The trial judge gave instructions to the jury (the jury charge) that included the issue of the subsequent accident.
  • In his summation, defense counsel suggested that the jury award damages only for past pain and suffering; plaintiff’s counsel asked for $3,000,000 equally split between past and future.
  • The defense hired an investigator who took surveillance film of plaintiff on 15 occasions and claimed that it showed plaintiff working without pain or restrictions. Plaintiff’s counsel contended the film  showed Mr. Ahumada struggling to walk, doing so slowly and with all his weight on his uninjured right leg.

 

Appellate Court Addresses Damages for Loss of Household Services

Posted in Economic Damages, Hip and Pelvis Injuries

On September 19, 2009 Frederick Knight went to his son’s automobile race at the Fulton Speedway, a 3/8 mile clay racetrack at County Route 57 in Fulton. He paid a special fee to watch from the pit area behind the track and had been there for two hours standing near his son’s car watching the early races when one of the 80 cars scheduled to race that night backed into him and knocked him to the ground causing serious injuries.

The Fulton Speedway

Mr. Knight, a 69 year old retired truck driver, sued both the driver who struck him and the owner of the track. After a trial in Onondaga County, a directed verdict was entered in plaintiff’s favor and the jury then awarded damages  for (a)  pain and suffering in the sum of $280,000 ($140,000 past – six years, $140,000 future – nine years) and (b) loss of household services in the sum of $440,000 ($140,000 past, $300,000 future – nine years).

In a post-trial motion, the defendants contended that (a) there was no basis for liability in view of a waiver plaintiff signed upon entering the speedway and the application of General Obligations Law Section 5-326 and (b) the loss of household services awards were excessive and without basis (they did not challenge the awards for plaintiff’s pain and suffering). The trial judge denied the motion.

In Knight v. Holland (4th Dept. 2017), the appellate court upheld the liability verdict but reduced the loss of household services award to $100,000.

The court’s decision discusses the waiver and liability issues in detail. Here are the injury details:

  • right intertrochanteric hip fracture requiring open reduction internal fixation surgery with intramedullary rod
  • recurring infections in right hip and knee requiring  removal of hardware from  hip and prior right knee replacement surgeries
  • unable to walk without a walker
  • difficulty standing and sitting, getting into and out of a car and picking up right foot and leg
  • constant right hip and leg pain

At the time of the accident, plaintiff had been living for 14 years with Rayne Dabney who has been confined to a wheelchair her entire life and he helped her with all activities of daily living (including transferring her in and out of bed) . He’d break her chair down into its component parts to get it into their car, help her in and out and put the chair back together. Also, in the past, he did all of their grocery shopping, ran all of their errands and managed their household . Now, he can do none of that.

The appellate court substantially reduced the loss of household services award without setting out any factual basis but, too, there was only little proof at trial in terms of hard numbers relative to the loss of household services claim.

Inside Information:

  • Defendants counterclaimed against plaintiff alleging that his lawsuit was frivolous in light of the waiver and they sought to recover their defense costs from him.

 

 


Verdict for Teenage Student Affirmed in School Parking Lot Gate Accident Case

Posted in Amputation Injuries, Hand Injuries

On April 22, 2009, Evan Martin, a 13 year old eighth grade student, was injured at school in Port Jefferson after a teacher assigned him and another student the task of closing a sliding gate to the school parking lot. The gate was a large chain-link structure measuring about 16 feet wide and six feet tall which slid back and forth by a rolling mechanism. Two of Evan’s fingertips were severed by the wheel mechanism at the top of the gate.

In his ensuing lawsuit against the school, a Suffolk County jury ruled that the defendants (the school and an adjacent church that shared the parking lot) were fully at fault for the accident and awarded pain and suffering damages in the sum of $600,000 ($450,000 past – five and a half years, $150,000 future – 55 years).

In Martin v. Our Lady of Wisdom Regional School (2d Dept. 2017), both the liability and damages verdicts have been affirmed.

In the liability phase of the trial, plaintiff contended that the gate was dangerous and students should not have been permitted to operate it without supervision, especially in view of the fact that othetr students had been injured in the past in a similar manner.

As noted in the court’s decision, the tips of Evan’s middle and ring fingers were severed. Here are the injury details:

  • traumatic amputations of the tips of nondominant hand’s index and ring fingers, including the skin, the nail bed and portions of the bones
  • emergency reattachment surgery using a composite replantation technique in suturing the fingertips back in place
  • necrosis necessitating surgical removal of the fingertips – leaving plaintiff with losses of one-half inch in the length of his ring finger and three-eighths of an inch of his middle finger
  • additional surgery to (a) remove dead skin and (b) apply skin grafts
  • fourth surgery, on 12/7/09 – revision of left finger deformity and complex repair with portion of bone contoured for appropriate shaping
  • hyperbaric treatments; physical therapy for six weeks
  • permanent pain, numbness, tingling and deformity with difficulty in gripping small objects

In addition to his physical injuries, plaintiff presented testimony from an expert psychiatrist who evaluated Evan in 2012 and opined that Evan experienced significant emotional trauma and then suffered from acute stress disorder and that his permanent physical defects will have psychological implications for the rest of his life.

Inside Information:

  • In their summations plaintiff’s counsel asked the jury to award $1,200,000 while defense counsel made no recommendations as to the amount of an award.
  • The only medical witness for the defense was an orthopedic surgeon who acknowledged that Evan continued to suffer from tenderness, deformities, decreased range of motion and decreased sensation.
  • Plaintiff’s expert psychiatrist testified that Evan met the criteria for post-traumatic stress syndrome (PTSD); however, the trial judge instructed the jury to “strike any reference” to that diagnosis because when Evan was evaluated in 2012 the diagnosis was acute stress disorder not PTSD.