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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Jury’s Pain and Suffering Award in Scar Case Substantially Reduced

Posted in Scars

On November 6, 2002 Miguel Erosa rushed to his local hospital in Queens complaining of unbearable pain in his stomach. It turns out he was suffering from appendicitis and he was admitted to the hospital where an emergency laparoscopic appendectomy was performed the next morning.


Mr. Erosa was discharged from the hospital three days later, received routine follow-up medical care twice and returned to work as a mailman three weeks after his surgery. Unfortunately, Mr. Erosa’s abdominal pain remained present and even got worse, so bad that on February 9, 2003 he underwent a second abdominal surgery.

It turns out that the first surgery had been negligently performed in that the surgeon failed to completely remove the appendix causing an infection (stump appendicitis) and the need for the additional surgery. In his medical malpractice lawsuit against the surgeon, Mr. Erosa was awarded pain and suffering damages in the sum of $1,200,000 ($950,000 past – 10 1/2 years, $250,000 future – 26 years).

The trial judge agreed with the defense that the award was excessive and ordered a reduction to $275,000 ($250,000 past – $25,000 future), an amount affirmed on appeal in Erosa v. Coomaraswamy (1st Dept. 2015).

As set forth in the appellate court decision, defendant’s negligence left plaintiff with a large abdominal scar. Here is a trial exhibit from the case illustrating the scar:

Scar Photo (3)

The plaintiff, then 41 years old, exhibited his scar to the jury and in summation his attorney characterized it as “horrific” but the trial judge, in his post-trial decision, stated that the scar, “while far from pleasant looking or desirable, falls significantly short of … horrific.” The appellate judges apparently agreed.

In addition to the scar, plaintiff’s injuries included:

  • the need to undergo a second, more complicated, surgery (an open abdominal exploratory surgery) that would not have been needed but for the malpractice,
  • a six day hospital admission for abdominal pain between the dates of the two surgeries and a 10 day admission for the second surgery,
  • unable to return to work (as a letter carrier for the U.S. Postal Service) for almost three months,
  • development of incisional hernia and painful internal scars following the second surgery, and
  • several months of post-operative wound care.

Plaintiff testified that he was embarrassed by how he looked, refrained from going to the beach anymore, had been an avid athlete and could not return to playing handball and had digestive difficulties. The defense, though, noted that in the 10 years after the second surgery up to the date of trial, plaintiff had not gone to see any physician regarding his complaints.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $1,550,000.
  • Plaintiff’s wife was awarded loss of services damages (also referred to as loss of consortium) in the sum of $125,000 ($100,000 past – 10 1/2 years, $25,000 future – 26 years) but that sum has been reduced to $50,000 ($30,000 past – $20,000 future). Plaintiff’s testimony in this regard was scant (e.g., intimate relations with his wife had “gone low”) and conclusory and the trial judge stated that “[n]either plaintiff’s testimony nor his wife’s was particularly convincing as to the supposed deleterious effect on their lives together.”
  • Before trial, plaintiff’s counsel made it clear to the judge that he would accept less than $150,000 to settle but defendants’ maximum settlement offer was $30,000.

Appellate Court Issues Decisions in Three Mesothelioma Cases

Posted in Mesothelioma

Just two months ago, here, we reviewed recent appellate court decisions dealing with pain and suffering damages in mesothelioma cases. The same appellate court has issued  decisions in three more cases involving similar issues and damages. In all of the cases, hard-working men suffered horribly difficult final years before succumbing to a premature death due to the ravages of mesothelioma. In each case, the jury’s award for pain and suffering was drastically slashed by the courts.


Selwyn Hackshaw  was a retiree in his early 70’s in late 2012 when he learned he was suffering from mesothelioma. For many years he’d been an electrician and a pipe fitter, working at plants installing and repairing gaskets and valves  manufactured by Crane Company containing asbestos.

Hackshaw sued Crane claiming that his mesothelioma was caused by his inhalation of asbestos in gaskets, insulation and valves that he’d handled over the years. During the tendency of his lawsuit but before trial, Mr. Hackshaw died from the disease on August 3, 2013.

On June 16, 2014 a Manhattan jury returned a verdict finding that Crane had failed to provide adequate warnings about the hazards of exposure to asbestos regarding its products and that its negligence caused Mr. Hackshaw’s mesothelioma. The jury then awarded pain and suffering damages in the sum of $10,000,000 (past – 12 months).

On January 7, 2015 the trial judge reduced the damages to $6,000,000 and in Hackshaw v. ABB, Inc. (1st Dept. 2016), the appellate court further reduced the damages to $3,000,000.


Ivan Sweberg was also a retiree when he learned in mid-2012, at the age of 70, that he too was suffering from mesothelioma. Mr. Sweberg had been an electrician involved in the construction of buildings from 1956-1972 when he worked with others who were installing and removing asbestos manufactured by Crane.

In Mr. Sweberg’s lawsuit against Crane (consolidated for trial with Mr. Hackshaw’s lawsuit), the jury found Crane liable and awarded pain and suffering damages in the sum of $15,000,000 ($5,000,000 past – two years, $10,000,000 future – 1.5 years).

The trial judge reduced the damages to $10,000,000 ($5,000,000 past, $5,000,000 future) and in Sweberg v. ABB, Inc.  (1st Dept. 2016), the appellate court further reduced the damages to $9,500,000 ($5,000,000 past, $4,500,000 future).


Ivo Peraica was 63 years old in August 2011 when he learned that he was suffering from mesothelioma. For many years, Mr. Sweberg serviced boilers manufactured by Crane that contained asbestos and his inhalation of fibers of asbestos caused mesothelioma.

Mr. Peraica sued Crane but died from mesothelioma before trial, on December 28, 2012, at the age of 64. On March 1, 2013, a Manhattan jury found Crane liable and awarded pain and suffering damages in the sum of $35,000,000 (past – 17 months).

The trial judge reduced the damages to $18,000,000 and in Peraica v. A.O. Smith Water Products Co. (1st Dept. 2016), the appellate court further reduced the damages to $4,250,000.


Inside Information:

  • In each of the three cases, there were several defendants other than Crane and the jurors were instructed to apportion liability among them all (some defendants no longer existed, others had settled, etc.). Here are the verdict sheets in the Hackshaw and Sweberg cases.
  • The post-trial decision in Hackshaw and Sweberg is here and in Peraica, here.
  • The juries determined that Crane acted with reckless disregard for the safety of others, thereby negating the liability limitations of CPLR Section 1601 and restoring Crane’s joint and several liability. Pursuant to General Obligations Law (“GOL”) Section 15-108, though, plaintiffs’ verdicts in these cases, as reduced by the post-trial decisions (but before the additional appellate court reductions), were further reduced, in each case, by the greater of the aggregate pre-verdict settlements with other defendants or their aggregate percentages of fault.  In Hackshaw, therefore, plaintiff’s judgment (before interest) was $2,909,646 and in Sweberg it was for $4,997,200.
  • The appellate court decision in Peraica  is erroneous as to damages in that it refers to the jury award as $9,900,800 when in fact it was $35,000,000 (thereafter reduced by the trial judge, as mentioned above, to $18,000,000). The judgment against Crane amounted to $9,900,800 (before interest) but that was based first upon the $18,000,000 award from the trial judge and then the reduction of that sum pursuant to the GOL.
  • Along with plaintiff’s notice to the appellate court regarding its significant calculation error in Peraica, we expect that plaintiff in Sweberg will accept the relatively small reduction and propose an amended judgment. In both Hackshaw and Peraica, though, we expect plaintiffs will mount a constitutional challenge to the continuing practice of New York’s intermediate appellate courts of reducing jury awards for pain and suffering in mesothelioma cases by millions of dollars, even tens of millions.
  • Ivan Sweberg died from his mesothelioma in July 2014.

Appeals Court Upholds Verdict in Unwitnessed Fatal Pedestrian Knockdown Accident

Posted in Wrongful Death

On October 29, 2006, a woman was found dead on the road four feet from the curb of a bus stop on the Henry Hudson Parkway service road at West 236th Street in the Bronx. There were tire marks across her back and she’d sustained crush induced fractures of her arms, face, pelvis, shoulder and skull indicating that she was rolled over by a vehicle over her pelvis and then her head.

Several hours later police investigators discovered blood and tissue underneath a bus that had stopped at the site at about the time of the incident. It was determined that the bus had struck the decedent, 51 year old Bronx resident and part-time home health aide Rachel Levy (although the bus driver was unaware he’d struck anyone and there were no eyewitnesses).

In the ensuing lawsuit by Ms. Levy’s survivors against the transit authority and its bus driver, a verdict was rendered finding the driver fully at fault and awarding $950,000 in damages as follows:

  1. $300,000 to the decedent’s estate for pre-death conscious pain and suffering,
  2. $100,000 to the decedent’s daughter, Miriam Oates, for her loss of nurture, care and guidance (future – five years) and
  3. $550,000 to the decedent’s mother, Hadassah Levy, for her loss of custodial services ($150,000 past – 6 1/2 years, $400,000 future – 10 years).

In Oates v. New York City Transit Authority (1st Dept. 2016), both the liability and damages awards were affirmed.

Here are the injury and damages details:

  • Pain and Suffering:  Plaintiff’s expert forensic pathologist opined that Ms. Levy died due to multiple blunt force crush injuries of her head, chest, pelvis and upper extremities and that she suffered two to five seconds of conscious pain and suffering from the time she was struck by the bus to the time she lost consciousness and succumbed to her injuries. He broke the time period down to the pre-impact phase (the few seconds before impact when Ms. Levy recognized she would be hit, the impact phase (when the bus hit her, propelled her, knocked her down and began to run over her) and the post-impact phase (once the bus finished rolling over Ms. Levy when her entire body experienced total shock before no longer responding to her environment). The defendants’ expert opined that Ms. Levy died instantly, without pain or suffering and that it was impossible to say if or how long Ms. Levy was conscious at the time of or after impact.
  • Loss of Nurture, Care and Guidance: Ms. Oates, 40 years old at trial, left her mother’s home after college when she married and moved to North Carolina. Se continued to rely upon her mother for nurture, care, guidance and advice (especially regarding her own young daughter) via frequent phone calls and visits to New York several times a year.
  • Loss of Custodial Services: Hadassah Levy, 77 years old at trial, lived with her daughter (the decedent), was disabled, suffered from several health conditions (e.g., severe rheumatoid arthritis, back issues, eye disease and sleep apnea) and she required daily household and medical assistance. The decedent provided her mother with daily custodial services including grocery shopping, cleaning, laundry, cooking, driving and keeping track of medications.

Inside Information:

  • The five judge appellate panel split 3-2 in favor of affirming the verdict and the defendants have exercised their right (by virtue of the split decision) to seek review from the state’s highest court, the Court of Appeals. We will report on any significant further developments as they occur.
  • Decedent’s family refused an autopsy on religious grounds.
  • New York’s wrongful death laws allow for an award of pecuniary damages (e.g., loss of custodial services) to a decedent’s distributees. Estates, Powers and Trusts Law Section 4-1.1 provides that where a person is survived by a child and a parent, the child is the sole distributee. Therefore, decedent’s daughter was her only distributee but defense counsel never objected to the prosecution of the claim for decedent’s mother until after the trial so the appellate court deemed the objection waived and allowed the award to stand.



Brain Damage Pain and Suffering Award Slashed in Case of Patient who Fell at Assisted Living Facility

Posted in Brain Injuries

On July 8, 2006 Frances Feinstein, a 75 year old patient at Norwegian Christian Home & Health Center (“Norwegian” – an assisted living facility in Brooklyn), was found on the floor with a knot on her forehead, evidently the result of a fall. The head trauma caused a brain injury requiring transfer to a hospital and then to a nursing home where Ms. Feinstein died 14 months later on September 14, 2007 without ever returning to Norwegian.

Norwegian Christian Home

Norwegian Christian Home & Health Center

Ms. Feinstein’s children commenced a lawsuit against Norwegian and decedent’s personal physician. They claimed that the defendants were negligent in failing to properly assess their mother and and provide her with the appropriate level of care for her pre-existing medical conditions (dementia and limited vision) and that these failures resulted in her fall. There was no claim that defendants caused Ms. Feinstein’s death (which was from unrelated causes); their claim was that had she been assessed as needing a higher level of care and closer monitoring fall precautions would have prevented her fall and her resulting traumatic brain injuries.

The Kings County jury returned a verdict in plaintiffs’ favor apportioning liability 70% to the physician and 30% to the facility and awarding pain and suffering and loss of enjoyment of life damages in the sum of $1,500,000 (past – 14 months).

In Feinstein v. Norwegian Christian Home & Health Center, Inc. (2d Dept. 2016), the liability verdict was affirmed; however, the court ordered a reduction of the damages award to $550,000.

Here are the injury details:

  • facial hematoma (described as “racoon eyes”)
  • chronic subdural hematoma
  • tonic clonic seizures
  • bedridden (in fetal position due to contractures)
  • pain
  • unable to speak
  • mental deterioration, hallucinations, anguish and emotional distress

Racoon eyes2

Plaintiffs’ expert neurologist testified that the head injury caused all of the foregoing and that pain medication (Tylenol) was given thereafter because Ms. Feinstein appeared to be in pain and discomfort. He also testified that on occasions at the nursing home she was aware of her environment and went from “quite intact at points to quite out of touch at other points.”

Decedent’s children visited often and both testified at trial. Her daughter testified that when massaging her mother’s arms and legs she could not straighten them out and her mother, unable to coherently communicate, would cry out in pain when she tried.

The defense contended that the damages award was excessive because there was insufficient evidence that Ms. Feinstein was conscious for significant periods of time, none of the nursing pain assessments in the medical records noted that decedent was in pain and it did not appear that the prescribed Tylenol was ever given.

Inside Information:

  • During trial, plaintiffs settled with Norwegian for $200,000. Therefore, plaintiffs’ judgment (against the physician) was in the principal sum of $385,000. (70% of $550,000).



Punitive Damages – Recent Cases

Posted in Punitive Damages

In addition to awarding damages to compensate plaintiffs for their injuries, a jury may award punitive damages  if the jurors find that the acts of the defendant that caused the injury complained of were wanton and reckless or malicious, represent a high degree of immorality or show such wanton dishonesty as to imply a criminal indifference to civil obligations. The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant and to thereby discourage the defendant and others from acting in a similar way in the future.

Recent cases have highlighted some of the issues facing appellate courts when plaintiffs claim punitive damages.

In Cardoza v. City of New York (1st Dept. 2016), an excessive force and malicious prosecution case, a Bronx County jury awarded 49 year old William Cardoza pain and suffering damages for extensive hand injuries in the sum of $2,500,000 (previously discussed by us here) as well as punitive damages in the sum of $1,500,000 ($750,000 against each of the two involved police officers). The trial judge vacated the award of punitive damages finding that there had been no showing by clear and convincing evidence that the arresting police officers were motivated by actual malice or acted in reckless disregard of plaintiff’s rights.

The appellate court reinstated $150,000 of the punitive damage awards ($75,000 against each officer) noting that the punitive damages were tied to plaintiff’s constitutional tort claims under 42 U.S.C. Section 1983, which stemmed directly from plaintiff’s excessive force and malicious prosecution claims. The court stated that punitive damages are available in Section 1983 actions “when a defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to federally protected rights of others.” The court held that there was sufficient evidence from which the jury could have reasonably concluded that the officers acted with reckless indifference or malice when they initiated the criminal prosecution against plaintiff without probable cause and used excessive force during his arrest.

In Chiara v. Dernago (2d Dept. 2015), a woman in a rear-end car crash case was awarded pain and suffering damages in the sum of $160,000 for her neck injury (previously discussed by us here) plus punitive damages in the sum of $70,000. On appeal both damages awards were affirmed. The defendant driver was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months. The award of punitive damages was based upon plaintiff’s claim that not only was defendant a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished.

In Hotaling v. Carter (4th Dept. 2016), a college student punched in the face and knocked unconscious sustaining multiple facial fractures and a concussion was awarded $40,000 for pain and suffering damages but his punitive damages claim was dismissed at trial despite the fact that the defendant had been charged with misdemeanor assault and pled guilty to harassment. The appellate court affirmed the pain and suffering damages award but agreed with plaintiff that the punitive damages claim should not have been dismissed in view of defendant’s plea allocution and conviction of harassment in the second degree. The case was remitted for a trial on the punitive damages claim.

In Anderson v. County of Suffolk (2d Cir. 2015), plaintiff had been arrested on an outstanding warrant and taken to a county police precinct for processing and detained overnight. During his detention, he was removed from his cell and assaulted by police officers sustaining a swollen eye, a fractured nose, lacerations and contusions. He claimed these and other injuries including knee derangement, back pain and neck pain. A jury in federal district court in Brooklyn ruled in plaintiff’s favor as to his excessive force and battery claims and awarded him $20,000 in compensatory damages and $75,000 in punitive damages. The punitive damages award was upheld on a post-trial motion with the judge considering the three guideposts for evaluating the size of a punitive damages award set forth by the U.S. Supreme Court in BMW of North America v. Gore (1996) – the degree of reprehensibility of defendant’s conduct, the punitive award’s ratio to the actual harm inflicted and the civil or criminal penalties that could be imposed for comparable misconduct.  The federal appellate court affirmed the trial judge’s order upholding the punitive damages award.

In Morse v. Fusto (2d Cir. 2015), a 55 year old dentist was indicted by a Kings County grand jury on charges of grand larceny and offering a false instrument for filing in connection with alleged false billing to Medicaid. After his acquittal, plaintiff claimed in a federal court lawsuit that he’d been deprived of his constitutional right to a fair criminal trial by a prosecutor and an investigator who knowingly created false or misleading evidence. A jury in the federal district court in Brooklyn rendered a verdict in plaintiff’s favor on liability and awarded him mental and emotional pain and suffering damages in the sum of $2,500,000. In addition, they awarded lost earnings in the sum of $4,224,936 and punitive damages in the sum of $1,000,000. The trial judge reduced the punitive damage award to $100,000 (and the emotional distress damages to $400,000). Plaintiff accepted the remittitur and the federal appellate court affirmed the lower court’s denial of defendants’ motions for judgment as a matter of law or a new trial.

Inside Information:

  • Claims for punitive damages are generally not covered by insurance; however, when such awards are made against police officers their employers, such as the City of New York, usually will indemnify them for punitive damage awards and the officers will not have to pay out of pocket. We understand that’s exactly what occurred in the Cardoza case discussed above.
  • Delone Carter, the defendant in the Hotaling case discussed above, was a football star at Syracuse University who was drafted by the Indianapolis Colts (an NFL team) in 2011 and signed a four-year contract worth roughly $2,000,000 for the four years. He was traded to the Baltimore Ravens in 2013, cut later that year, then signed by the Jacksonville Jaguars and released in 2014.

Verdict Affirmed for Worker Injured in Forklift Accident

Posted in Hand Injuries

On March 26, 2010, Eladio Hernandez was hired for the day to level out the driveways and gas pump lanes at a gas station  in South Ozone Park.


There was a large high pile of dirt that was to be removed and the 51 year old Mr. Hernandez was instructed to shovel it away while standing in a plastic container mounted on a forklift operated by a gas station employee. As the driver was backing up the forklift and lowering the fork, Hernandez was thrust toward the ground nine feet below and sustained serious injuries as he grabbed onto the forklift to steady himself and his hand was crushed when it became caught for 45 seconds in a moving part of the machine’s mechanism.


In the ensuing lawsuit against the premises lessor and the gas pumps operator under Labor Law Section 200, a Queens County jury found the defendants were fully at fault and awarded plaintiff pain and suffering damages in the sum of $875,000 ($200,000 past – three years, $675,000 future – 24 years).

In Hernandez v. Pappco Holding Co., Ltd. (2d Dept. 2016), both the liability and damages determinations have been affirmed.

The court’s decision did not mention the injuries sustained. Here are the injury details:

  • crush-burst type fractures of the middle phalanges, index, middle and ring fingers of his left (dominant) hand
  • casted and splinted for five days before surgery
  • percutaneous pinning surgery to repair the fractures followed by pin removal surgery one month later
  • occupational/hand therapy three times a week for nine months
  • permanent significantly limited range of motion with twisted, deformed and painful fingers, unable to make a fist, unable to pick up small items and unable to return to construction work
  • 31% total disability impairment to his hand (according to plaintiff’s expert hand surgeon, who was the only testifying physician)

hand anatomy

Inside Information:

  • There was no loss of earnings claim; plaintiff returned to work such as light painting or cleaning jobs that did not require any strength.
  • In closing arguments, plaintiff’s attorney asked the jury to award $675,000 for past pain and suffering damages plus $1,100,000 for the future.
  • The defendants argued that the jury award should be reduced because plaintiff returned to some work and asserted no loss of earnings claim, claimed only partial loss of use of his hand, his surgery was “unremarkable,” his disfigurement was “mild”and his fingers “healed with some residual effects but without malunion or nonunion.” They also argued that the amounts requested by plaintiff’s counsel were impermissible and unreasonably excessive (a rarely used contention that was rejected by the court).

Substantial Jury Awards for Driver and Passenger Reduced in Intersection Crash Case

Posted in Brain Injuries, Knee Injuries, Leg Injuries

On August 19, 2008, Dorothy Dunnigan was driving through an intersection on White Plains Road in the Bronx when her vehicle was struck by a transit authority bus. Both the 79 year old Ms. Dunnigan and her 41 year old passenger Dorothy Lemon sustained serious injuries.


In their ensuing lawsuits, a Bronx County jury determined in April 2013 that the crash was 100% the fault of the bus driver and the jurors awarded pain and suffering damages, as follows:

  1. to the estate of Ms. Dunnigan (she died in 2011 from unrelated causes) in the sum of $2,000,000 (all past – three years) and
  2. to Ms. Lemon in the sum of $4,000,000 ($2,000,000 past – three years, $2,000,000 future – 35 years).

In Coleman v. New York City Transit Authority (1st Dept. 2015), the awards have been substantially reduced – to $1,000,000 for Ms. Dunnigan’s estate and to $3,500,000 ($1,500,000 past, $2,000,000 future) for Ms. Lemon.         

As set forth in the court’s decision, Ms. Dunnigan sustained head and other injuries while Ms. Lemon sustained femur, knee and other injuries.

Here are the injury details:

Dunnigan: At the hospital immediately following the accident, she complained of headaches and overall body pain. A CT scan disclosed a subdural hematoma which required surgical evacuation with burr holes drilled into her skull. Following her craniotomy, Ms. Dunnigan remained hospitalized for five weeks and then she was admitted for one month to a rehabilitation facility. Although she drove a car and never required ambulatory assistance before the accident, she could no longer drive thereafter and required a rolling walker to get around. In addition, she had continuing shoulder, neck and knee pain, left side weakness, poor balance and forgetfulness all of which, plaintiff’s expert neurologist testified. were the result of her traumatic brain injury. She was essentially confined to her home until she died.

subdural hematomathu_jpg

Lemon:  A comminuted right femur fracture required open reduction internal fixation surgery with the insertion of an intramedullary rod and screws and a one month hospitalization. Upon discharge, she required visiting nurse assistance and inpatient rehabilitation. She never returned to work as a home health aide and required a cane to walk. About four years after the accident, Ms. Lemon underwent arthroscopic surgery on her right knee to repair a torn meniscus that her doctor opined was due to increased stress because of the femur fracture. She also suffered from back pain and unremitting headaches and dizzy spells 2-3 times a week and was diagnosed with depression for which she was medicated and undergoing psychiatric care.


Femur Fracture Nailing

The jury also awarded lost earnings damages to Ms. Lemon in the sum of $6,000,000 ($1,000,000 past – five years, $5,000,000 future – 35 years) but those amounts were slashed to $825,000 by the trial judge and further reduced by the appellate court to $617,000 ($97,000 past, $520,000 future – 25 years). The trial judge’s reduction was based upon plaintiff’s annualized last year’s wages as a part-time home health aide ($20,800) and the appellate court’s additional reduction was because there was no evidentiary basis to conclude Ms. Lemon would work the remainder of her life expectancy.

Inside Information:

  • During a recess between the close of evidence and summations, one of the jurors told the judge that Ms. Lemon approached her and said something to the effect of “vote for me.” The defendants moved for a mistrial arguing that their case was prejudiced. After extensive inquiry by the judge, the application for a mistrial was denied.
  • In their summations, the attorney for Ms. Dunnigan’s estate asked the jury to award $1,000,000 for her pain and suffering while the attorney for Ms. Lemon asked for $6,000,000.
  • Before the accident, Ms. Lemon was working as a home health aide for Ms. Dunnigan 20 hours a week helping her with matters such as shopping and laundry due to Ms. Dunnigan’s pre-existing cardiac and arthritis issues. Otherwise, Ms. Dunnigan had been in relatively good health.

Appellate Court Addresses Damages in Fatal Car Crash Case

Posted in Wrongful Death

On January 24, 2004, Col. (retired) William Gardner sustained fatal injuries when the vehicle he was driving struck and vaulted over an interstate highway’s snow-covered barrier in Syracuse and fell to the street below. We discussed the ensuing lawsuit in previous articles, here and here. In Gardner v. State of New York (4th Dept. 2015) almost all of the damages findings have been affirmed on appeal.

At the damages trial (judge only, no jury), the total award was $3,569,985 which included:

  1. $1,122,150 for loss of financial support for the decedent’s two teenage sons
  2. $1,365,500 for the boys’ loss of inheritance
  3. $825,000 for the boys’ loss of parental guidance
  4. $250,000 for pre-impact terror
  5. $0 for pre-death pain and suffering

The appellate court affirmed the awards for pre-impact terror (based on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and that it took “several seconds” to fall to the street below), loss of parental guidance and future loss of financial support but reduced by $323,000 the awards for past loss of financial support because that’s all the evidence supported. Additionally, the appellate court rejected claimants’ contention that the trial judge erred in using a personal consumption rate of 45% (their expert used a rate of 28.5% while defendant’s used a rate of 95%).

The affirmed parental loss of guidance awards in the sums of $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) and $475,000 ($425,000 past – 9 years, $50,000 future – three years) for Ryan (24 years old at trial)  were based upon the testimony of the sons about how involved and supportive their father was in their lives as well as testimony from their mother (to whom Gardner was married for 14 years before they divorced four years before his death) and several of Col. Gardner’s friends. The trial judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers. The appellate court noted that the children were teenagers but that  courts may even award damages to financially dependent adults.

The trial judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.” This ruling was not appealed.

The defendant appealed trial judge’s periodic method of payment (but not the amount) of the $1,365,000 award for loss of inheritance but the appellate court ruled that CPLR 5041 , the statute requiring a lump sum present value for certain awards, is not applicable in this case.







Newborn’s Brain Injury Pain and Suffering Award Reduced

Posted in Brain Injuries, Medical Malpractice

Jaelin Sence was born on July 4, 2007 at New York Methodist Hospital (NYMH) in Brooklyn.  He was discharged two days later after examinations and tests indicated to hospital personnel he was normal and healthy.

photo of hospital

New York Methodist Hospital in Brooklyn

The next day, though, Jaelin began to vomit and show signs of serious illness. He was rushed to another hospital where he was diagnosed with hyperbilirubinemia and found to be severely neurologically and brain impaired.

After a two week trial in November 2013, a Kings County jury determined that the hospital and Jaelin’s private pediatrician had committed medical malpractice because Jaelin was suffering from jaundice during his admission at NYMH and they failed to properly examine, diagnose and treat him during that critical time (his first two days of life) when the tragic consequences that ensued could easily have been prevented.

The jury awarded pain and suffering damages in the sum of $11,015,000 ($4,000,000 past – six years, $7,015,000 future – 61 years).  On appeal in Sence v. Atoynatan (2d Dept. 2016), the past pain and suffering award was reduced to $2,000,000 and, thus, the total approved pain and suffering award is $9,015,000.

The main injury sustained by Jaelin is kernicterus (brain damage from severe hyperbilirubinemia), a condition that caused cerebral palsy.

Here are the injury details:

  • unable to move limbs voluntarily or in any useful manner
  • unable to walk
  • no head control
  • cannot feed or dress himself
  • cannot speak

Despite his physical and brain damage, Jaelin can see, hear and make sounds, he can track objects, responds to being called and he is aware. He goes to school and enjoys playing. According to plaintiff’s expert neurologist, an MRI showed there was no damage “in any part of the thinking brain;” instead, it showed problems in the cerebellum, which mainly involves movement.


Based upon testimony from its expert neurologist, the hospital argued that Jaelin is unaware of his condition and will have a reduced life expectancy (10-15 years) and therefore the damage awards were excessive. Plaintiff argued, though, that the jury, having been shown a short video of Jaelin and having viewed him court, was able to judge for themselves Jaelin’s awareness and ability to interact. While the appellate court reduced the past pain and suffering award from $4,000,000 to $2,000,000, it did not comment upon or disturb at all the $7,015,000  future pain and suffering award,  apparently agreeing with plaintiff that Jaelin is aware of his condition and will have a life expectancy of 61 more years.

As set forth on the verdict sheet, the jury also awarded damages for:

  1.  future medical care expenses in the sum of $12,433,300 (including $7,330,000 for home health aides, $4,282,200 for therapy, $643,550 for medical equipment and $177,510 for medical costs, all over 61 years with growth rates of about 4% per year) and
  2.  future loss of earnings in the sum of $1,365,000 (over 39 years at the rate of $35,000 per year with growth rate increases of about 4% per year).

Inside Information:

  • Prior to and during trial, NYMH took a “no pay” position regarding settlement. After the verdict, plaintiff’s settlement demand was $12,000,000 against which the hospital offered to pay its liability insurance coverage of $7,500,000.
  • Jaundice is common in newborns but it is crucial that it be treated. Plaintiff’s attorney, the renowned Thomas A. Moore, said: “I don’t know if I have ever seen a more preventable case.”


Back and Knee Pain and Suffering Award Affirmed on Appeal in Pedestrian Knockdown Case

Posted in Back Injuries, Knee Injuries

On June 12, 2009, 32 year old Jason Kowalsky was a field technician for Verizon standing at the back of his parked van when he was hit by a pick-up truck owned by the County of Suffolk.

Verizin van

In his ensuing lawsuit, Kowalsky’s motion for summary judgment as to liability was granted and in August 2014 the case proceeded to a damages only trial.

Plaintiff was awarded pain and suffering damages in the sum of $1,050,000 ( $200,000 past – five years, $850,000 future -41 years). The trial judge ordered a reduction of the future damages award to $200,000. On appeal, in Kowalsky v. County of Suffolk (2d Dept. 2016), the entire pain and suffering award has been reinstated.

As set forth in the court’s decisions, plaintiff sustained a back injury that required surgery. Here are the injury details.

  • emergency transport to local hospital with severe overall body pain and knee placed in immobilizer; discharged to home by ambulance but returned to the hospital same day and two days later complaining of leg pain
  • right knee arthroscopic meniscal repair surgery on 12/2/09; partially torn anterior cruciate ligament and chondromalacia observed
  • knee brace for one month, crutches for three months
  • low back pain radiating to lower extremities due to annular tear at L4-5 requiring physical, injection and medication therapies and on 6/3/12 lumbar laminectomy surgery and a spinal fusion at L4-5 with screws, rod and a bone graft
  • at the time of trial, plaintiff had limited range of motion in his spine, chronic pain syndrome, was unable to lift or bend and the side effects of extensive continuing opioid pain medications (he was taking Oxycodone, Methadone, Flexeril, Ibuprofen and Ambien) left him sluggish, groggy, cognitively impaired, with extremely limited daily activities and unable to return to any work at all
  • all injuries were deemed permanent and plaintiff’s prognosis was poor for control of his chronic pain

annular tears 2

The jury also awarded economic damages in the sum of $4,038,000 ($2,625,000 for lost earnings and $1,413,000 for lost benefits). The trial judge ordered substantial reductions of all future economic (and future pain and suffering) losses but the appellate court reinstated them all. The jury award for past lost wages was at the rate of $75,000 per year which was about what plaintiff had earned in a recent year; future lost earnings (over a 24 year period) were based upon increases plaintiff claimed he would have enjoyed over the years. The defendants’ main argument as to the lost earnings awards was that plaintiff could perform some form of sedentary work, according to their experts. As the court noted, though, the jury was free to adopt the opinions of plaintiff’s expert physicians who opined that he could not return to any form of work, sedentary or otherwise (mainly due to the debilitating effects of continuing narcotic pain medications).

Inside Information:

  • Defendants raised on appeal an allegation that a year before trial plaintiff pled guilty to felonious grand theft and that any claims of accident related inability to work are extremely suspect. Plaintiff argued that this claim was not raised at trial and should therefore not be considered by the appellate court. It was not mentioned in the decisions.