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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Loss of Consortium Award Cut in Mesothelioma Case

Posted in Loss of Consortium Damages

For about eight months from 1964 to 1965, Harry Brown was exposed to asbestos while he worked as an insulator at Ravenswood 3, a newly constructed Con Edison powerhouse in Long Island City in Queens.

ravenswood

Mr. Brown was diagnosed with mesothelioma in June of 2012 and died from the disease on September 8, 2013 at the age of 75. He is survived by his wife Phyllis Brown and adult children.

Before he died, Mr. Brown and his wife sued Con Edison and others alleging his exposure to asbestos-containing materials over the course of his 15 year career as an asbestos installer caused his mesothelioma. The suit was based on Labor Law 200 and common law negligence principles that require employers to provide a safe place to work.

After a four month trial, a Manhattan jury rendered a verdict on March 18, 2014 finding that Con Edison had exercised supervision and control over workers at the powerhouse, failed to exercise reasonable care to keep the premises safe and that the failure was a substantial contributing factor in causing plaintiff’s mesothelioma. The jurors then awarded damages for (a) pain and suffering in the sum of $2,500,000 (past only – 18 months) and (b) Mrs. Brown’s loss of services in the sum of $1,000,000 (18 months).

Defendant made a post-trial motion asking the trial judge to set aside the jury verdict claiming that there was insufficient proof that Con Edison exercised supervision and control over Mr. Brown’s work.  The motion was granted in an extensive decision on August 29, 2014 that was adhered to seven months later in a decision following plaintiff’s motion to reargue.

Con Edison did not challenge the pain and suffering award in its post-trial motion but did, alternatively argue that the loss of consortium award was excessive. Although she vacated the judgment and dismissed the complaint against Con Edison, the trial judge also ordered that the loss of consortium award be reduced to $360,000.

Plaintiff appealed arguing that (a) there was sufficient evidence to support the jury’s finding of supervision and control under the statute and (b) the trial judge’s decision insofar as it addressed loss of consortium damages was advisory only in that having granted defendant’s motion to set aside the verdict, the issue of damages then became moot and, therefore, should the appellate court reinstate the liability verdict it should also reinstate the $1,000,000 loss of consortium award.

In Brown v. Bell & Gossett Company (1st Dept. 2017),  the liability verdict against Con Edison has been reinstated and the award for loss of consortium damages has been reduced to $360,000.

The defendant argued that the loss of consortium award was unwarranted based on the fact that at the time of Mr. Brown’s diagnosis and subsequent death, he had been retired from work, his children were grown and no longer living with him, he was also already suffering from stage four prostate cancer (unrelated to his asbestos exposure) and there no testimony from Mrs. Brown to evidence what support and services she lost, other than the loss of her husband’s love and companionship.

Plaintiff argued, and the appellate judges apparently agreed (to an extent) that the defendant and the trial judge overlooked testimony from Mrs. Brown that proved she sustained significant loss of consortium damages. For example, she testified that her husband did repairs on their house including plumbing and building a garage, took care of all of the family finances including paying the bills, maintained the lawn and in general “took care of” both Mrs. Brown and their house. Furthermore, she testified that she assisted her husband daily with the medical consequences of his tragic disease such as draining his surgical incisions, attempting to control diarrhea, helping him move his body and dealing with the emotional problems affecting them both.

Inside Information:

  • Although Mr. Brown died two months before trial, he testified during pre-trial proceedings and the transcript of his deposition was read to the jurors.
  • Since the jury found that Con Edison did not act recklessly, its obligation to pay the damages awarded is limited to 65%:  its 30% proportionate share of liability plus, under CPLR 1602, the 35% share of plaintiff’s employer (defendant Robert A. Keasbey Co.).

 

Modest Pain and Suffering Award Affirmed in Shoulder Injury Car Accident Case

Posted in Shoulder Injuries

On October 3, 2011, Jessica Iovino was a pedestrian crossing a street in Brooklyn when the side mirror of a left turning vehicle struck her left arm.

In her ensuing lawsuit, a Kings County jury found that the accident was fully the fault of the driver and the matter then proceeded to a trial on damages only. The jury awarded plaintiff pain and suffering damages in the sum of $25,000 (past only – two and a half years).

The trial judge denied plaintiff’s post-trial motion seeking a new trial on damages and in Iovino v. Kaplan (2d Dept. 2016), the appellate court affirmed the judgment.

As indicated in the decisions, plaintiff underwent arthroscopic surgery on her left shoulder but there was a dispute as to whether plaintiff required the surgery because of a torn labrum or whether she merely had mild bursitis (and the surgery was not required).

LabralTear_LG

In addition, since this case implicated New York’s “No Fault Law” (Insurance Law Section 5102), in order to recover any damages at all for pain and suffering, plaintiff had to prove that her injuries met at least one of the so-called nine threshold categories. The jury found she had not sustained a permanent  consequential limitation or a significant limitation of use of her left shoulder injury, only that she was unable to perform her usual and customary activities for 90 out of the 180 days after the accident.

The impact did not knock Ms. Iovino to the ground but it did cause immediate excruciating pain in her arm and shoulder. Ms. Iovino declined an ambulance and her mother came from their home a few blocks away and they walked home together. The next day, she sought emergency room treatment at the local hospital where her shoulder was examined, she was given a prescription for pain medication and she was advised to follow up with a doctor should her pain persist.

Plaintiff  treated with two orthopedic surgeons – first, about a week after the accident, with David R. Capiola, M.D. and thereafter with Dov Berkowitz, M.D. Dr. Capiola recommended physical therapy (which plaintiff underwent for a month) and an MRI (which was performed on October 20, 2011). Plaintiff switched to Dr. Berkowitz about five weeks after the accident; he too prescribed physical therapy but found significant range of motion deficits and recommended surgery which Ms. Iovino underwent on December 28, 2011.

Much of the dispute as to whether the surgery was needed centered around the MRI which, both Dr. Berkowitz and defendant’s experts agreed, did not show a labral tear. Nonetheless, Dr. Berkowitz testified that he recommended the surgery based upon plaintiff’s continuing pain, decreasing range of motion and positive results from both a Neer’s test and an O’Brien’s test. And, the doctor testified that during the surgery he actually saw the labral tear.

Tests

The defense expert orthopedic surgeon, Edward Toriello, M.D., testified that the surgery was not needed, there was no labral tear (at most, some minor fraying) and plaintiff sustained merely a shoulder strain and bursitis that had resolved.

Ms. Iovino, a 35 year old executive assistant for a private equity firm, missed one week of work after the accident, then lost her job but returned to a similar job a month after her surgery and at trial was still working there. When asked about her current condition, she testified that she takes over-the-counter medications to control daily shoulder pain but was able to work, was “not saying that I have a disability,” has “limitations as to what I can do” but can and does lift her three and seven year old children.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $400,000 for past pain and suffering plus $800,000 for the future. Defense counsel suggested $15,000 for the past and nothing for the future.
  • The defense argued that plaintiff should have called Dr. Capiola as a witness since he treated plaintiff (a) before and after a prior accident in 2008 in which she sustained a right shoulder injury requiring surgery and (b) after the current accident. The trial judge agreed and included in his jury charge a so-called missing witness instruction advising the jurors that they may conclude Dr. Capiola’s testimony wouldn’t support the plaintiff’s position on the question of what her physical condition or injury was both before and after the current accident.
  • During trial, the attorneys argued over certain prospective evidentiary rulings being requested of the judge. At one point, the judge, Francois A. Rivera, admonished the attorneys for interrupting him and told them: “The next time either counsel interrupts the Court or each other, I am going to have to start considering whether sanctions are appropriate.” He then instructed the attorneys that upon their return to court the next day they were to produce and demonstrate their personal checkbooks and that he “would like the feel of it on the side of your jacket throughout the day so it makes it very easy for me to impose sanctions ….” No sanctions were ever imposed.

Significant Wrist Injury Damages Verdict Modified on Appeal

Posted in Wrist Injuries

On September 15, 2011, Arvella Floyd was showering in the bathroom of her apartment in Brooklyn when the hot water knob and spindle fell and out of the shower wall onto her foot, causing hot water to come out at her “full blast.”

As a result, Ms. Floyd (then 61 years old) fell in the bathtub sustaining injuries to her wrist.

Site of Accident - 1710 Union Street, Brooklyn

Site of Accident – 1710 Union Street, Brooklyn

In her ensuing lawsuit against the owner  of the premises and the managing agent, plaintiff and her daughter testified that defendants had prior notice about pre-existing problems with the hot water knob falling off and that the superintendent had made inadequate repairs.

A bathroom in the same building

A bathroom in the same building

The Kings County jury found the defendants fully at fault for the accident and plaintiff’s injuries.

After a trial on damages, the jury awarded plaintiff pain and suffering damages in the sum of $1,075,000 ($275,000 past – three years, $800,000 future – 15 years).

In Floyd v. 1710 Realty, LLC (2d Dept. 2016), the liability verdict has been affirmed but the court ordered a reduction of the future pain and suffering damages award from $800,000 to $500,000.

Here are the injury details:

  • emergency room treatment on the day of the accident – diagnosed with a displaced extra-articular distal radius fracture, treated with closed reduction and casted for several weeks
  • open reduction internal fixation surgery on 10/12/11: implantation of metal plate with seven screws
  • new cast for eight more weeks
  • additional surgery on 8/15/12: removal of painful and protruding hardware
  • mild carpal tunnel syndrome
  • left median nerve neuropathy
  • hypertrophic (keloid) scar at surgery site three and a half inches long
  • restricted range of motion, especially as to extension (30 degrees with normal being 70) and flexion (40 degrees with normal being 80)
  • continuing pain for which plaintiff takes Gabapentin (a narcotic pain reliever), diminished grip strength, swelling, numbness, sensitivity over her thumb and tingling in her hand
  • reliance upon daughter for many activities of daily living such as shopping, cleaning and cooking
Wrist fx with plate

An example – not plaintiff – of what a wrist looks like with a plate and screws after surgery.

Plaintiff’s orthopedic surgery expert, Drew Stein, M.D., testified that in his opinion plaintiff (a) had a permanent 60% loss of use of motion in her wrist, (b) had developed left median nerve neuropathy, per EMG test results, for which carpal tunnel release surgery was indicated and (c) will develop arthritis in her wrist joint in the future for which a wrist fusion surgery would be indicated.

Defendant’s orthopedic surgery expert, Jay Nathan, M.D. testified that in his opinion plaintiff had some loss of range of motion in her wrist but there was no nerve injury or evidence of carpal tunnel syndrome and plaintiff will not need any additional surgery in the future.

In addition to pain and suffering, the jury also awarded damages for medical expenses in the sum of $825,000 ($75,000 past, $750,000 future). The parties agreed after the trial to reduce that  aspect of the verdict to $185,000 ($45,000 past, $140,000 future). Dr. Stein testified that the carpal tunnel surgery would cost about $50,000, physical therapy would add $10,000 more and that wrist fusion surgery would cost $80,000. The defense contended not only that the future surgeries would not be needed but also that Dr. Stein should not have been allowed to testify about the cost of the fusion surgery because the defense was never notified (either in the bill of particulars or the expert disclosure notice) that plaintiff would be making such a claim. The appeals court agreed with the defense and ordered a reduction of the future medical expense award to $60,000

Inside Information:

  • During the trial, defendants offered $175,000 to settle the case. Plaintiff rejected the offer but countered with a $250,000-$900,000 high-low proposal that was rejected by the defendants.
  • In summations, defense counsel suggested that $250,000 would be a reasonable pain and suffering award; plaintiff’s counsel suggested $2,600,000.
  • Plaintiff was unemployed and, therefore, she made no loss of earnings claim.
  • Plaintiff is right handed but, prior to the accident, she used her left hand for everything except handwriting due to a prior right wrist sprain.

Leg Crushed, then Surgically Amputated after Man Struck by Car

Posted in Amputation Injuries, Medical Malpractice

On December 3, 2004 Alfonso Marin had just dropped off co-workers at their construction site when he was standing behind his parked van at 172nd Street and Broadway in upper Manhattan and an SUV smashed into him, pinning his left leg against the van and crushing his femur.

Marin, then 40 years old, was rushed to the local hospital with a cold, pulseless leg and was diagnosed with severe trauma and massive degloving to his left lower extremity with multiple comminuted segmented fractures,  a complete transection of the bone and lacerated blood vessels, including the major artery and vein, causing extensive blood loss.

blood supply - legs

In the operating room, doctors initially placed an external fixation device on the femur. Then, they performed a revascularization procedure (to try to restore blood flow to the lower leg) and a fasciotomy (to relieve swelling and help blood travel into the vessels toward the foot).  Finally, though, after several hours, Marin’s leg was surgically amputated above the knee.

Marin sued the driver who hit him and recovered his full policy limits of $100,000. He then sued the hospital and the doctors (employed by the hospital) claiming that they prematurely abandoned their attempts to save his leg and should not have amputated it.

A Manhattan jury concluded that the vascular surgeon had departed from accepted medical practice when he decided that no sufficient measures would control plaintiff’s bleeding in his leg and proceeded with the amputation. The orthopedic surgeon was exonerated.

The jury then awarded plaintiff pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – nine years, $4,000,000 future – 30 years).

In Marin v. New York City Health & Hosps. Corp. (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

Defendants argued that due to the car crash plaintiff’s leg was already partially amputated when he arrived at the hospital and that heroic efforts to save the leg were made in the operating room but the leg was nonviable and could not be salvaged. That position was refuted by plaintiff’s experts who opined that plaintiff would have had a substantial chance (30-40%) of saving the leg if a Fogarty catheter had been used to reestablish circulation.

Fogarty-catheter

As to damages, defendants argued (unsuccessfully) that:

  • the trial judge improperly denied their request to have the jury apportion liability with the SUV driver (which, they contended, would have resulted in a complete or at least substantial reduction of the percentage of fault and thus the amount of damages they had to pay) and
  • the award was excessive because plaintiff would unquestionably have had significant permanent injuries regardless of any malpractice since his leg was crushed and “functionally amputated” from the impact.

Plaintiff conceded that his damages should be “less than an identically situated plaintiff whose entire injury was caused by the party-defendant” but argued, successfully, that the jury’s award was proper because the judge correctly charged the jurors that plaintiff “should be compensated only to the extent that [the jurors] find his condition was made worse” and not “for damage done to the leg prior to his arrival [at] the hospital.”

Here are the injury details:

  • above-the-knee amputation of left leg
  • placement of five prosthetic legs to date (with several more needed in the future)
  • shrinking stump and ulcers
  • constant “phantom” pain (despite prescription pain medications)
  • worsening prognosis as to ability to ambulate leading to wheelchair confinement in the future

above knee

Inside Information:

  • Plaintiff could not return to any type of construction work but was able to earn money by selling ices from a cart in the summer and churros in the winter.
  • The jury heard from life care plan experts for both sides and awarded economic damages in the sum of $1,652,755 for future medical and psychological care, medications, equipment and supplies, and physical therapy.
  • The vascular surgeon who was found liable testified that he had used the Fogarty catheter; however, there was no mention of the catheter in the medical records. Plaintiff’s trial counsel, Ryan Asher, stated in his closing argument that it was an “incredible moment” when one of the defendant’s experts testified that in his opinion the catheter had not been used.

Verdict Affirmed for Passenger in Car Crash who Sustained Neck Injury

Posted in Neck Injuries

On February 23, 2006, Suzanne Kusulas was a front seat passenger in her boyfriend’s car which was stopped at a red light on 16th Street at its intersection with Prospect Park West in Brooklyn when it was hit hard from behind by a car owned and operated by Diane Saco. Upon impact, Ms. Kusulas, although seat-belted, was thrust back and forth striking her head on the dashboard.

whiplash

As a result, Ms. Kusulas, then 40 years old, sustained significant neck injuries. In her ensuing lawsuit, Ms. Kusulas was granted summary judgment on the issue of liability and the matter proceeded to a damages only trial in Brooklyn.

On June 12, 2012, the jury rendered a verdict awarding pain and suffering damages in the sum of $2,000,000 ($1,000,000 past – six years, $1,000,000 future – 36 years). The defendant argued that the award was excessive but the trial judge declined to disturb the award.

In Kusulas v. Saco (2d Dept. 2015), the $2,000,000 pain and suffering award has been affirmed.

As set forth in the court’s decision, Ms. Kusulas sustained herniated cervical discs that required two spinal fusion surgeries and left her with chronic pain. Here are the injury details:

  • ambulance to hospital with complaints of neck pain, treated and released
  • follow-up three weeks later with orthopedic surgeon
  • conservative treatment for unremitting radiating pain for 20 months including physical therapy and painful steroid injections
  • surgery #1 on 11/27/07 – anterior cervical discectomy and fusion at C4-5 and C5-6 with allografts and instrumentation (screws and a titanium plate)
  • continuing unremitting (but no longer radiating) neck pain
  • new disc herniation and degeneration at C6-7 caused by non-union in first surgery
  • surgery #2 on 5/12/09 – three level posterior cervical fusion from C4-C7 with screws, rods and a bone graft from plaintiff’s pelvis
  • continuing neck pain despite active pain management treatment including extensive medication (Percocet  and Fentanyl patches)
  • almost 50% permanent loss of range of motion
  • unable to resume previously enjoyed athletic activities including bicycle riding, canoeing and exercising at gym

Plaintiff had been a cigarette smoker for 15 years before her car crash and was addicted to nicotine. Her doctors advised her to quit smoking for six months before and after surgery for which she was prescribed and took Chantix, a smoking cessation drug; however, she was unsuccessful in quitting smoking completely.

Cigarette_smoking_400

Defendant argued at trial and on appeal that plaintiff’s failure to stop cigarette smoking likely contributed to her needing a second surgery. Plaintiff’s treating surgeon, Andrew Hecht, M.D., testified that there would be a small chance of non-union for anyone undergoing the first surgery and plaintiff’s smoking may have increased the chance of developing a non-union but plaintiff’s smoking had nothing to do with her spine’s degenerative changes and the new herniation that required her to undergo a second surgery.

Inside Information:

  • The jury also awarded medical expenses in the sum of $1,369,066 ($216,066 past – six years, $1,153,000 future – 36 years). After the trial, the parties settled the collateral source issue with plaintiff waiving the past medical expense award and defendant stipulating to the future medical expense award of $1,153,000.
  • Defendant had $1,300,000 of insurance coverage with Government Employees Insurance Company (“GEICO”) – a $300,000 primary policy plus $1,000,000 of excess coverage. Prior to trial, defendant offered $300,000 to settle and during jury deliberations it offered $1,300,000. Plaintiff would have accepted $1,300,000 to settle but only with 9% per annum interest added from the date of summary judgment almost two years earlier. GEICO refused.
  • GEICO made a partial payment on the verdict in the sum of $1,283,500 (the full policy limits less $16,500 already paid to another person injured in the accident) but plaintiff maintains the position that she is owed pre-judgment interest and asserts that GEICO acted in bad faith in its conduct in defending the lawsuit such that it should be compelled to pay the entire verdict (even though it exceeds the policy limits). These matters are unresolved and are the subject of pending litigation in the U.S. Distinct Court for the Eastern District of New York (GEICO v. Saco – Case # 12-CV-5633 and Kusulas v. GEICO – Case # 15-CV-634).
  • Plaintiff was unable to return to work as a court clerk for about a year on and off between the two surgeries but she used her accumulated sick time and made no loss of earnings claim.

Shoulder Injury Award Affected by Claimant’s Credibility

Posted in Shoulder Injuries

On September 19, 2013 Demetrio Vasquez was driving an SUV on Broadway through its intersection with 135th Street in Manhattan when a left-turning vehicle struck his driver’s side doors.

t bone

There was no question as to liability for the crash and the other driver’s insurance carrier, State Farm, paid its $25,000 policy limits to settle Mr. Vasquez’s claims for shoulder, neck and back injuries.

Mr. Vasquez, then 58 years old, was driving in the course of his employment as a supervisor for a building maintenance company which had in effect $1,000,000 of supplementary underinsured motorist (“SUM”) coverage with Hanover Insurance Company (here, a primer on SUM coverage from the New York State Bar Association).

Vasquez asserted a claim under the SUM policy for damages he allegedly sustained in excess of the $25,000 received from State Farm. The parties could not settle upon a reasonable additional amount for his claims so the matter had to be resolved under the auspices of the American Arbitration Association (the “AAA”).

At the AAA hearing on November 19, 2015, the only witness to testify was Mr. Vasquez (the “claimant”). Medical records were also submitted in evidence. Following the hearing, an arbitration decision was issued awarding nothing based upon the arbitrator’s findings that Mr. Vasquez had been adequately compensated by the $25,000 previously received and he testified falsely as to his injuries.

Vasquez sought to vacate the arbitration award and a Manhattan judge agreed with claimant that the award should be vacated because it failed to substantiate its findings and ignored medical records that showed a causal connection between the trauma and the injuries claimed.

In Hanover Ins. Co. v. Vasquez (1st Dept. 2016), the appellate court reversed and confirmed the award because (a) it was “rationally supported by the record” and (b) there was sufficient evidence that claimant’s injuries had resolved. Furthermore, the appellate judges upheld the arbitrator’s findings as to claimant’s lack of credibility.

Here are the details of the injury claims Mr. Vasquez asserted in this case:

  • Right Shoulder: extensive tear of subscapularis tendon, supraspinatus tendon, proximal biceps tendon and glenoid labrum, requiring arthroscopic surgery to repair the rotator cuff subscapularis tendon
  • Neck: disc herniation at C6-7
  • Back: disc herniations at L1-2 and L5-S1

shoulder

While medical records appeared to substantiate his injury claims, the arbitrator found that Mr. Vasquez testified falsely at the hearing as to substantial matters and that finding was the basis for her decision to award nothing.

false testimony

There was an issue as to whether claimant’s shoulder was injured at all in the crash in view of the facts that:

  1. he did not seek and medical attention at the scene and
  2. when he first sought treatment (a day later at an emergency room) records indicate that he complained only of neck and back pain

Claimant testified that photographs his girlfriend took showed bruises to his shoulder from the impact, bandages placed the next day at the hospital and “blood accumulated resulting from the hit, from the injury.” The arbitrator, though, examined claimant’s shoulder and it appeared to her that surgical scars she saw were the same as those on the photographs. She concluded that Vasquez falsely testified that the photographs were taken a day after the crash when in fact they were taken just after his shoulder surgery 10 months later.

Claimant’s false testimony led the arbitrator to conclude that his “willingness to lie under oath to advance his litigation claims severely tainted his credibility.” She stated that “an opinion as to proximate cause is necessarily at least partially reliant on the history of the onset and nature of the symptomatology.” Since claimant was “an exceptionally unreliable historian,” the arbitrator found that there was no causal connection between the accident and the shoulder injury.

The arbitrator stated that claimant’s material lie under oath warranted the application of the principle Falsus in Uno which permits the trier of fact to disregard completely the entire testimony of a witness who willfully testifies falsely as to an important material fact.

The arbitrator concluded:

I did not believe Claimant’s testimony about his complaints and disability immediately after the accident or at the present time. I did not believe the testimony about his inability to work … [or] that he was let go from work due to his physical condition … [or] that he accurately informed his treating doctors about his physical condition after the instant accident.

Inside Information:

  • In his closing argument, claimant’s attorney requested the arbitrator to award all ($975,000) or substantially all of the SUM benefits available after the $25,000 offset for the underlying settlement.
  • As set forth in claimant’s arbitration memo, Vasquez claimed (unsuccessfully) damages for lost earnings (in the sum of $363,560) and lost household services (in the sum of $135,732).

 

Verdict Affirmed for Woman Who Fell inside Moving Subway Car

Posted in Hip and Pelvis Injuries

On May 13, 2007 Aleyanesh Sebhat boarded the subway train at the Pelham Parkway station in the Bronx. As soon as she did, the train took off suddenly, with a violent jerk that threw her across the subway car and onto the floor where she lay writhing in pain until ambulance personnel took her to the local hospital.

Pelham

In Ms. Sebhat’s ensuing lawsuit against the transit authority, the Bronx jury (a) determined that a sudden, unusual and violent movement of the train caused her injuries and (b) awarded pain and suffering damages in the sum of $1,500,000 ($1,200,000 past – seven years, $300,000 future – 10 years).

In Sebhat v. MTA N.Y. City Tr. (1st Dept. 2016), the appellate court (a) reversed the liability finding and remanded the case for a new trial on liability due to erroneous evidentiary rulings by the trial judge but (b) affirmed the damages award “which should stand if the [new] jury finds liability on retrial.”

As indicated in the court’s decision, plaintiff, then 62 years old, sustained a hip injury but the court refrained from disclosing more.

anatomy of hip

Here are the injury details:

  • comminuted left intertrochanteric hip fracture with subtrochanteric extension

intertrochanteric-fracture-4-638

  • surgery two days later: intramedullary fixation of left hip fracture with 340 mm fixation nail placed into the length of her femur, locked in place at the top and bottom with interlocking screws
  • one month inpatient at hospital and rehabilitation center
  • two weeks home Visiting Nurse Service
  • antalgic gait requiring a cane to walk inside and a roaming walker outside
  • intractable, throbbing pain (daily but not continuous) and significant loss of range of motion, both of which her treating surgeon testified are permanent and will get worse over time (the defense conceded “there is permanency regarding the left hip”)

Prior to the accident, plaintiff was active, in good health and independent. She lived with her adult daughter and was the one who did the shopping, cooking and cleaning (none of which she can do any longer) and walked all over – to parks, the zoo and church (now she can walk no more than three blocks at a time). She had just finished a course to become certified as a babysitter and was looking for work in that field when she was injured.

The defense challenged the future pain and suffering award (but not the past). The jury’s original verdict sheet returned to the judge after deliberations awarded $1,200,000 for past pain and suffering but “none” for the future.  At plaintiff’s request, over defendant’s objection, the judge re-charged the jury that it should go back to the jury room and reconsider its award for future pain and suffering in view of the fact that it had been “pretty much established, without doubt, that [plaintiff] is going to have a permanent – that these injuries she sustained are going to be permanent”:

“if you believe … that she is going to live with this for the remainder of hr life … consider whether in fact she should be awarded [future pain and suffering damages].”

After the re-charge, the jury awarded $300,000 for future pain and suffering damages. The defendant argued on appeal that the jury’s initial verdict declining to award anything for future pain and suffering should be reinstated because the trial judge had substituted his assessment of the witnesses’ credibility as to permanency and continuing pain. The appellate judges, though, disagreed stating that an award of zero damages for the future “would have been unwarranted” in view of uncontroverted evidence of permanence. They also rejected defendant’s alternative argument that $300,000 was excessive.

Inside Information:

  • Ms. Sebhat was born in Ethiopia (and testified in her native language, Amharic) where she taught grade school before her husband died at the age of 48 years and she came to the U.S. in 2002 via the diversity immigrant visa program and became a citizen in 2008.
  • Plaintiff’s attorney asked the train operator whether defendant’s attorneys had spoken with him “in connection with preparing you to come on the witness stand and testify in this case” and “they spoke with you about giving testimony that this train could not have a sudden top, just couldn’t and wouldn’t happen ….” This question violated the attorney-client privilege, suggested to the jury that the defendant may have coached the witness how to testify and was one of the errors requiring a new trial on liability.

Construction Site Injury Awards Sharply Reduced

Posted in Back Injuries

On October 11, 2008 Gilbert Hernandez was working at a construction site in the Bronx inspecting a gas line being installed in a six-foot deep trench. As he was  climbing out, Mr. Hernandez fell down into the trench landing on his back.

Trench

In his ensuing lawsuit against Danella Construction of New York, Inc. –  the pipe installation subcontractor –  the jury determined that the defendant was liable under Labor Law Section 240 because it failed to provide the proper equipment (i.e., a ladder) so that plaintiff, then 44 years old, could have safely exited the elevation-related hazard.

Hernandez was awarded substantial damages from the Bronx jury on June 2, 2014 but the amount was slashed in a post-trial decision on September 22, 2015 and in Hernandez v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2016) the trial judge’s reductions have been affirmed.

The appellate court decision, though, provides no information at all as to the plaintiff’s injuries and fails to disclose any of the the amounts awarded by the jury, reduced by the trial judge and affirmed by the appellate court.

Here are the injury details:

  • herniated discs at L3-4, L4-5 and L5-S1
  • three epidural and facet block injections, extensive physical therapy
  • laminectomy and fusion at L4-5 and L5-S1 with bone graft, six screws, plate and two rods requiring one week hospitalization

lumbar fusion3

  • failed back surgery syndrome and chronic pain requiring three spine stimulator implant surgeries

spinal cord implant surgery

  • left ankle sprain and wound with infection requiring one week hospitalization for antibiotic therapy; chronic pain and limited range of motion
  • unable to return to construction work, take long walks or ride a bicycle

The jury awarded plaintiff pain and suffering damages in the sum of $2,500,000 ($300,000 past – 5 1/2 years, $2,200,000 future – 31 years); however, the trial judge reduced the jury’s pain and suffering award to $1,400,000 ($200,000 past, $1,200,000 future) and that’s the amount affirmed by the appellate court.

Inside Information:

  • Based largely upon a life care plan prepared by one of plaintiff’s experts that delineated likely future medical needs and costs (such as about $1,500,000 for additional spinal cord stimulation procedures and replacements), the jury also awarded past medical expenses in the sum of $300,000 and future medical expenses in the sum of $2,700,000. The trial judge found (and the appellate court agreed) that most of the future medical expenses award was speculative and it was reduced to $491,431.
  • Plaintiff’s pre-trial settlement demand was $750,000 against an offer of $50,000.
  • Plaintiff was helped out of the trench, in pain, but declined medical attention at the scene, returned to work two days later and worked for another six days before he first sought any medical treatment related to his injuries. Thereafter, he never returned to work.
  • Consolidated Edison Company was the first named defendant in the lawsuit caption but the claims against it were dismissed during trial and the case was continued and tried against only Danella Construction.

 

Modest Pain and Suffering Award Affirmed in Car Crash Case

Posted in Back Injuries

On April 30, 2010 Patricia Telesco was driving her 2003 Hummer motor vehicle on Route 55 in Lagrangeville when she was struck head on in her lane by a 1998 Oldsmobile driven across the double yellow line by Kyle Blackman on his way to classes at Arlington High School. Ms. Telesco was taken from the scene by ambulance to the local hospital complaining of back and leg pain.

Route 55 in Lagrangeville

Route 55 in Lagrangeville

Ms. Telesco, then 41 years old, sued Mr. Blackman (and his father, as his vehicle’s owner) and in October 2013 a Dutchess County jury determined that the defendant driver was fully liable for the accident.

A different jury then heard testimony in a damages only trial and on December 13, 2013 plaintiff was awarded pain and suffering damages in the sum of $60,000 (all past – three years, eight months).

Plaintiff appealed claiming that the damages award was inadequate. In Telesco v. Blackman (2d Dept. 2016), the appellate court declined to disturb the amount of damages and affirmed the jury’s award.

As set forth in the court’s decision, Ms. Telesco sustained a thoracic disc herniation for which she underwent surgery. Here are the injury details:

  • disc herniation at T12-L1 with associated annular tear and indentation of the spinal cord
  • surgery on 9/23/10 to remove disc material and stabilize the joint – a T12-L1 laminectomy and microdiscectomy with interbody fusion with pedicle screws and two rods
  • three day hospital admission for the surgery with emergency re-admission shortly thereafter for four more days due to pain
  • confined to home for four months after second hospitalization
  • two scars at surgical site
  • unable for one year to resume customary homemaking activities or drive a car
  • continuing inability to resume kayaking, snowmobiling or ride a horse

spine modelT12 fusion

The issue on appeal related to New York’s CPLR 5102 (d) – the so called serious injury threshold statute.

The jurors were presented with verdict sheet questions requiring them to state whether plaintiff’s injuries met either the statutory significant limitation of use of a body function or system category or the 90/180-day category (a non-permanent injury that prevents one from performing substantially all of the material acts that constitute one’s usual and customary daily activities for not less than 90 days in the 180 days immediately following the accident). The jurors ruled that plaintiff had not sustained a significant limitation of use but had met the 90/180-day standard.

Plaintiff’s normal pre-accident routine involved activities related to the 16 acre family farm she maintained with her husband. Each day, she’d pick up food from a nearby store to feed the farm animals (calves, sheep and chickens), she did secretarial work for her husband, cared for her son and did housework such as vacuuming and washing clothes. The defense argued that within one year, plaintiff resumed all of these activities, she sought no medical care for this matter for more than two years before trial and her only physical complaints as of trial were that on cold and rainy days she has “a little sharpness” in her back and has to be careful walking on uneven ground.

Neurosurgeons for both parties testified by way of videotape.

  • Plaintiff’s surgeon testified that within four months of the accident, plaintiff did not have any documented significant limitations and within a year her radiating pain had resolved and her prognosis was excellent. He made no mention of any objective findings as to limitations or restrictions and even stated that the fusion he performed “may or may not be” a significant limitation of that portion of the spine.
  • The defense expert opined that Ms. Telesco had “no significant limitation” as a result of her surgery: “having a total of 17 levels between the thoracic spine and lumbar spine, fusing one should not result in any significant loss of range of motion in general ….”

Inside Information:

  • The defendant claimed that a yellow jacket bee had entered his car 10 seconds before the crash and that he’d tried to swat it away when he lost control of his vehicle. Plaintiff’s motion for summary judgment as to liability was denied in 2012 when the trial judge found that it was for a jury to determine whether the distraction of the bee provides a non-negligent explanation for the accident.
  • Plaintiff’s husband asserted a loss of services claim but was awarded nothing.

Medical Malpractice Pain and Suffering Verdict Reduced on Appeal

Posted in Medical Malpractice

On a summer day in 2004, Robert Wyble was pushing a lawnmower when his legs suddenly “gave out” and he fell to the ground. It happened again about a month later and then frequently in 2005.

BERLIN, GERMANY - JUNE 15: A worker mows strips of grass in front of the Chancellery with a lawn mower on June 15, 2011 in Berlin, Germany. Germany is currently enjoying summer weather replete with thunderstorms alternating with blue skies. (Photo by Sean Gallup/Getty Images)

Mr. Wyble, then a 42 year old self-employed landscaper, consulted a neurologist who diagnosed his condition as myasthenia gravis – a disorder caused by an interruption of the signals between the nerves and muscles, resulting in weakness of certain muscles.

In April 2009, after almost five years of treatment, it was discovered by another doctor that Mr. Wyble had been misdiagnosed and what he really had was cataplexy – a condition in which an individual falls for no apparent reason and then gets right back up again.

In Mr. Wyble’s ensuing lawsuit medical malpractice lawsuit, a Manhattan jury determined in March 2014 that the doctor who diagnosed myasthenia gravis had departed from accepted standards of medical care and that the departure was a substantial factor in causing significant injuries.

The jury then returned a verdict awarding pain and suffering damages in the sum of $3,500,000 ($2,000,000 past – nine years, $1,500,000 future – 28 years).

In Wyble v. Lange (1st Dept. 2016), the appellate court affirmed the liability finding but agreed with the defense that the damages award was excessive and ordered a reduction of the pain and suffering award to $1,100,000 ($900,000 past, $200,000 future).

Here are the injury details, involving years of rigorous treatment that addressed a condition Mr. Wyble did not have, none of which details were mentioned in the court’s decision:

  • thymectomy –   a major surgery with a 17 day hospitalization in which plaintiff’s thymus was removed when his chest was “split open” and then sewn back with wires, leaving plaintiff with a destabilized chest vulnerable to minor trauma, structural irritation and loss of strength in his upper body
  • 74 unnecessary plasmapheresis treatments (an invasive procedure in which blood was withdrawn, plasma was separated out and replaced with albumin and then the blood was returned) – every two days out of 14 for three years
  • scar tissue and pain at plasmapheresis port sites and scars on his chest and shoulder
  • infection in spine stemming from plasmapheresis, with 12 day hospitalization
  • immune system diminished leaving plaintiff more vulnerable to infections  for the rest of his life
  • prescription and administration of multiple, toxic, immunosuppressant drugs, all “directed at basically clobbering the immune system,” which, especially Prednisone, can cause cataracts, hypertension, diabetes and thinning of bones
  • unable to play with his children or resume playing softball
  • development of prolonged emotionally crippling depression that ended plaintiff’s 23 year marriage

thymus

Inside Information:

  • The jury also awarded loss of services and consortium damages to Mr. Wyble’s wife in the sum of $1,000,000 (past only – six and one-half years). The trial judge ordered a reduction to $100,000 (an amount accepted by Mrs. Wyble). On appeal, Mrs. Wyble sought an increase to $250,000. The appellate court ruled that her request was unpreserved but that in any event the reduced amount was proper.
  • Plaintiff’s wife was at his side during this ordeal for years and especially during the invasive and exhausting plasmapheresis treatments in which, under sterile conditions, she had to flush out the port line each time, clean it, and inject heparin in order to prevent clots. Mrs. Wyble left her husband and moved out of their home in December 2011 (thus terminating her damages claim as of the date she moved out): “I couldn’t do it anymore. … I wanted a husband and a family …. He was … there but not emotionally.”
  • The defense did not introduce any adverse medical testimony to challenge plaintiff’s evidence and medical expert concerning the nature and extent of his injuries.
  • The jurors awarded $1,100,000 more than plaintiff’s attorney, Richard A. Gurfein, suggested in his summation for future pain and suffering ($500,000 more) and loss of services and consortium ($600,000 more).