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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Excessive Force Case against Police Officer – $2,250,000 Pain and Suffering Award for Couple in Altercation; Punitive Damages Awards Vacated

Posted in Back Injuries, Neck Injuries, Punitive Damages

On August 4, 2007 Herminio Pizarro and his girlfriend Olga Garcia were attending a block party on Brook Avenue and 138th Street in the Bronx.

Flyer_Page_001.jpgAt about 7 p.m., Mr. Pizarro interceded when he saw a New York City Police Department (“NYPD”) officer questioning a 14 year old girl. An altercation ensued between Pizarro and the police officer in and following which Pizarro and Garcia were injured. Pizarro was arrested and charged with assault.

The charges were dropped by the district attorney and the criminal case dismissed on January 10, 2008. Pizarro then sued the NYPD and the officer for false arrest, malicious prosecution and excessive force. Garcia joined in the suit claiming her own pain and suffering damages.

Pizarro, a 57 year old unemployed former state corrections officer, Vietnam War veteran and long-time member of the National Guard, claimed that he was merely pleading with the officer to refrain from striking the girl when the officer threw him against a wall, tossed him onto the ground and punched him several times as he was being arrested. Pizarro claimed he was handcuffed and beaten further both in the police car on the way to the police station and in the bathroom at the police station  by six unidentified officers. Garcia’s injuries occurred when she tried to intercede on her boyfriend’s  part and was restrained by two officers while a third sat on her.

A Bronx County jury ruled in favor of plaintiffs on all of their claims and awarded damages as follows:

  1. to Mr. Pizarro for pain and suffering in the sum of $2,000,000 (all past – seven years) plus punitive damages in the sum of $1,000,000 and
  2. to Ms. Garcia for pain and suffering in the sum of $250,000 (all past – seven years) plus punitive damages in the sum of $250,000.

Here are the injury details as to Mr. Pizarro:

  • ER treatment on date of incident presenting with road rash to his head and face, a dislodged tooth and complaining of pain in his neck, mouth and head; he received sutures in his tongue
  • surgery on 2/1/08 – partial corpectomy and discectomy at C5-6, anterior fusion with allograft bone and metal plate
  • surgery on 5/13/09 – removal of old hardware, C4-5 discectomy
  • continuing and constant neck pain, unable to resume competitive or any weightlifting, unable to ride a bicycle; permanent lisp

Here are the injury details as to Ms. Garcia, then 50 years old:

  • ER treatment three days later complaining of low back pain
  • surgery 3/2/09 – L2-3 disc replacement
  • surgery 6/9/09 – decompression of C3-4 disc and removal of hardware
  • continuing pain in neck and back, unable to return to dance hobby, unable to walk long distances without cramps
  • Note: Before this incident, Ms. Garcia had  extensive disc disease requiring three surgeries (two in 2004 and one in December 2005) – lumbar screw fixation, cervical surgery for spinal cord compression and spondylosis and revision of prior instrumentation and removal of lumbar screws. She was disabled and treating continuously with doctors up to the date of this incident. The judge charged the jury as to exacerbation and susceptibility.

Defendants’ medical expert, Sheeraz Qureshi, M.D., testified that both plaintiffs suffered from degenerative/arthritic spinal conditions before this incident and that the incident did not cause the need for any of the surgeries after the incident. To the contrary, plaintiffs’ medical expert, Gabriel Dassa, D.O.., testified that the incident caused the need for all of the surgeries after the incident.

The defendants challenged all of the awards in a post-trial motion and the plaintiffs at the same time cross-moved for a new trial on damages claiming that the jury’s failure to award anything at all for their future pain and suffering was inconsistent and against the weight of the evidence. The trial judge issued a decision denying both motions in their entirety.

Defendants appealed, again challenging all of the awards to both plaintiffs, arguing that there was no basis for any of them. Plaintiffs opposed the appeal but did not cross-appeal as to future pain and suffering damages apparently because the defendants did not challenge the amounts awarded for past pain and suffering damages.

In Pizarro v. City of New York (1st Dept. 2017), the punitive damages awards have been vacated in their entirety because there was insufficient evidence that the named defendant police officer was involved in the assault on Ms. Garcia or that he (a) accompanied Mr. Pizarro to the police station or (b) was involved in the assaults on Mr. Pizarro later in the precinct’s bathroom.

Inside Information:

  • There were indications in his medical records that Mr. Pizarro was intoxicated at the scene; however, defendants were precluded from introducing those records because the trial judge determined they were not germane to his medical treatment.
  • In addition to Ms. Garcia’s two 2009 surgeries, she also underwent back surgeries in 2010 and 2011; however, she was precluded from introducing evidence of the latter two surgeries because they were not included in her supplemental bill of particulars.
  • Plaintiff Pizzarro was precluded from introducing any evidence that he will need future surgery because it had not been included in his bills of particular.
  • In plaintiffs’ closing argument, their attorney asked the jury to award (a) $7,000,000 for Mr. Pizarro’s pain and suffering plus $1,000,000 for punitive damages and (b) $3,000,000 for Ms. Garcia’s pain and suffering plus $1,000,000 for punitive damages.
  • In defendants’ closing argument, their attorney urged the jury to award nothing at all because there had been no false arrest , malicious prosecution or excessive force and “all the plaintiffs have been doing is exaggerating and lying because they saw an opportunity to get a payday from the City of New York and they acted upon it.”

Jury Verdict Declining to Award Damages Affirmed in Fatal Pedestrian Knockdown Case

Posted in Wrongful Death

On January 29, 2013, at about 7:30 p.m., Juan Estevez was attempting to cross Sunrise Highway at its intersection with Henry Street in Freeport when he was struck by a left turning vehicle. Mr. Estevez, 64 years old,  sustained massive injuries in and about his head, ribs and sternum. He was pronounced dead at the hospital three hours later after resuscitation efforts failed. He was divorced, retired, lived alone and survived by three adult sons.

Scene of Accident

Scene of the Accident

In the ensuing lawsuit by the decedent’s estate against the driver, a Nassau County jury determined that both the driver and the decedent were at fault for the accident (the driver 22% and the decedent 78%) but that the estate was not entitled to any damages at all for pre-impact terror, pre-death pain and suffering or loss of parental guidance.

In Estevez v. Tam (2d Dept. 2017), the jury verdict was affirmed. The only damages issue on appeal was loss of parental guidance as plaintiff did not challenge the verdict as to either pre-impact terror or pre-death pain and suffering.

Mr. Estevez’s sons were 34, 40 and 44 years old at the time of trial and they testified regarding the tight knit family bond they had with their father and that they talked to him often and strongly relied upon him frequently for guidance. The defendant noted, though, that (a)  each of the sons lived on his own with their own families, (b)  each was self-sufficient (there was no evidence that their father gave them any financial support) and, (c) the sons offered no specific testimony or evidence that they relied upon their father for counsel or guidance. While it appears the appellate court acknowledged that there was some evidence of loss of parental guidance, the court nonetheless affirmed the verdict awarding nothing for this damage claim because the jury was entitled to weigh the testimony on this issue and determine for itself which version preponderated.

As to liability, the defendant claimed he could not have avoided the impact because the decedent was wearing dark clothing, walking outside the crosswalk and against the light (which he and his passengers all testified was green for him and red for pedestrians)  and ran into the side of his car (the driver’s side mirror was knocked off during the incident). He never saw Mr. Estevez before impact and had no indication a pedestrian was involved until he exited his car.

About 18 months before trial, defendant moved for summary judgment dismissing the claims for pre-impact terror and pre-death pain and suffering. The judge denied the motion and allowed the claims to be resolved by a jury at trial in  part because of a statement from the driver that the decedent “looked conscious” at the scene and an affidavit from a passenger that the decedent was moving his left hand while on the ground before taken away by ambulance.

At trial, the renowned pathologist Michael Baden, M.D., testified as an expert for  the defense. He stated that the decedent suffered brain damage and lost consciousness when the car hit him and that any body movement at the scene was not voluntary. The coroner who performed the autopsy testified for the estate and opined that Mr. Estevez experienced a moment of pre-impact terror as well as pre-death conscious pain and suffering. The jury credited the defense expert, awarded nothing for these elements of plaintiff’s claim and the findings were not appealed.

Inside Information:

  • There was some testimony that the decedent babysat a granddaughter on occasion but no testimony that the girl’s father incurred any costs in retaining a replacement babysitter (which could have formed the basis for a loss of services claim).
  • There was a $150,000 settlement offer that was rejected. In summation, plaintiff’s attorney asked the jury to award $900,000 –  $600,000 for the estate’s financial losses, $100,000 for pre-impact terror and $200,000 for pre-death pain and suffering.

 

 

 

Court Orders Substantial Increase in Pain and Suffering Damages for Woman with Complex Regional Pain Syndrome

Posted in Uncategorized

On July 30, 2011 Anita Castro was seated on a patio having lunch after golfing at a club in Saratoga when a busboy decided to move another table and in the process of lifting it a table leg struck her in the head and face.

The veranda at Saratoga Spa Golf, where this incident took place:

Saratoga Spa Golf

Dazed and in pain, Ms. Castro, then 49 years old, was taken by ambulance to the hospital where she was treated and evaluated for a head contusion and a cervical strain. Ultimately, she developed permanent complex regional pain syndrome (“CRPS).

CRPS-Symptoms-CRPS-Signs-RSD-Signs-RSD-Symptoms

In her ensuing lawsuit against the golf club, the trial judge directed a verdict of liability against the defendant and then the jury awarded pain and suffering damages in the sum of $300,000 ($200,000 past – four years, $100,000 future – 28 years). The trial judge agreed with plaintiff that the award was inadequate and he ordered an increase to $900,000 ($300,000 past, $600,000 future), an amount that has been affirmed on appeal in Castro v. Professional Golf Services, Inc.  (4th Dept. 2016).

In addition, plaintiff was awarded and the appellate court approved past and future medical expenses in the sum of $307,850 ($100,000 past, $207,850 future).

The appellate court decision does not at all disclose the nature of plaintiff’s injuries. Here are the injury details:

  • onset of vertigo on day of accident followed by tremendous, debilitating migraine headaches diagnosed as post-traumatic migraine headaches
  • gradual closing of jaw – within first month, it was virtually closed
  • temporomandibular joint (“TMJ”)  disorder
  • TMJ reconstructive joint arthroplasty surgery (also known as fat grafting surgery) – to remove TMJ discs and stabilize with fat grafts
  • Ketamine infusions, nerve blocks and injections
  • complex regional pain syndrome (“CRPS”) –  permanent

TMJ

The defendant contended that plaintiff’s extremity symptoms, TMJ and migraine headaches all predated the 2011 accident and that prior treatment records made a mention of possible CRPS.  Furthermore, a defense medical expert opined that plaintiff’s multiple complaints of pain do not have an organic (or physical) basis.  In 1983, Ms. Castro underwent cervical fusion surgery and seven years later she had a car accident that aggravated her old neck injury and also caused a mild concussion. In the early 1990’s, she had two car accidents, one causing low back pain, the other a head injury and neck pain. Then, in 1997, she had a slip and fall incident in which she again aggravated her neck injury and sustained a new injury to her lower back leaving her with a frozen shoulder. At the time, she attributed several symptoms to the slip and fall accident, including pain in all extremities. She was  eventually medically determined to be permanently disabled and no longer worked.

Plaintiff stressed that several years after being declared disabled in the late 90’s, plaintiff returned to an active lifestyle. She became very involved in a dance studio and enjoyed golfing four times a week as well as hiking and kayaking. Since the accident in 2011, though, Ms. Castro’s physical condition greatly deteriorated and she suffers from continuing and debilitating migraine headaches, wears special glasses due to extreme light sensitivity, can only eat soft foods, endures constant pain throughout her body especially in her bones and joints, is extremely weak and requires a cane to walk.

Inside Information:

  • In his closing argument, defense counsel suggested an award of $150,000 for past pain and suffering and $100,000 for the future. Plaintiff’s attorney did not suggest or even mention any amounts for his client’s pain and suffering. He simply asked the jurors to “take into consideration the pain and suffering”endured, and her loss of enjoyment of life, both in the past and permanently in the future.
  • A total of nine physicians testified (seven for plaintiff, two for the defense), including plaintiff’s expert Mark A. Piper, M.D., D.M.D, one of the world’s leading physicians in the treatment of CRPS and its association with TMJ. Plaintiff’s TMJ physician and defendant’s dental expert both recognized Dr. Piper as an expert in CRPS and TMJ and both had attended his lectures.
  • The jurors viewed a videotape of plaintiff taken by a friend one month before her 2011 accident. It showed her playing with her nephews on a putting green and the trial judge described it as impressive evidence of the ” … striking change in the plaintiff’s physical appearance and disabilities.”

Pain and Suffering Awards Affirmed for Knee and Back Injuries in Subway Platform Trip and Fall Case

Posted in Back Injuries, Knee Injuries

On March 22, 2007, Andrew Flores was boarding a subway train at 149th Street in the Bronx when he tripped and fell over a broken portion of a wooden board used to cover the edge of the platform. His right foot became ensnared and stuck in a defect in the board causing his left leg to become caught in the gap between the train and the platform.

149

In the ensuing lawsuit against the transit authority, the Bronx County jurors determined that the defendant was negligent and issued a verdict specifically finding that the wooden board was unsafe and that the defendant should have but failed to correct it. The jurors awarded pain and suffering damages in the sum of $641,000 ($266,000 past – seven years, $375,000 future – 15 years) as well as future medical expenses in the sum of $535,000 (15 years).

In Flores v. New York City Transit Authority (1st Dept. 2017), both the liability and pain and suffering awards were affirmed; however, there is no mention in the court’s decision as to the nature of plaintiff’s injuries.

Here are the injury details:

Left Knee –

  •  torn meniscus and large femoral condyle defect with loose cartilage
  • arthroscopy on 5/15/07 with chondroplasty medial femoral condyle, synovectomy and partial meniscectomy
  • Orthovisc injections
  • continuing painful ambulation and quadriceps atrophy requiring brace or cane and narcotic pain medications

meniscus_repair--04

Back –

  • severe back pain, spasms, decreased range of motion and chronic intractable lumbar radiculopathy
  • epidural steroid injections and narcotic pain medications

epidural1

The award of $535,000 for plaintiff’s anticipated future medical expenses (15 years) was based upon testimony from plaintiff’s pain management physician and orthopedic surgeon that his injuries are permanent and he will require another arthroscopic surgery (cost about $50,000), may require total knee replacement surgery (cost about $100,000) and will require pain management treatment, epidural steroid and Orthovisc injections, medications and other medical care into the future. The trial  judge ordered a reduction of the future medical expense award to $315,250 based upon the testimony regarding what treatment will be needed and the cost estimates. Plaintiff then agreed to the reduction.

Inside Information:

  • There was no mention of back pain in the ER records on the day of the accident and no treatment records for back pain were adduced at trial except for those of plaintiff’s pain management physician with whom he treated for the first time (but continuously thereafter for both his back and his knee) three years after the accident (although he treated with a chiropractor in the interim). In summation, defense counsel stated: “Mr. Flores lost his job and in 2010 this becomes a debilitating back injury and debilitating knee injury that he seeks massive compensation for.”
  • Mr. Flores, then 46 years old, had been employed at the time of the accident helping the homeless as a housing specialist/case manager at the Harlem YMCA; he was unable to return to work for six months. Thereafter he was unemployed (but plaintiff did not claim loss of earnings damages at trial).
  • In 1987, Mr. Flores was incarcerated for five years following felony convictions involving drug use and robberies, facts that were brought out at trial by his attorney and then elaborated upon by defense counsel in cross-examination.

False Arrest, Malicious Prosecution and Excessive Force Claims against Police Officers Upheld and Damages Awards Affirmed

Posted in Facial Injuries

On June 15, 2007 at about 1:30 a.m., Gary Gill crossed the street at Flatlands Avenue near 87th Street in Brooklyn intending to go to his parked car. As he opened his car door, another vehicle pulled up and two men jumped out. In the ensuing moments, the men, undercover police officers with the New York City Police Department (the “NYPD”), scuffled with and arrested Gill. He was charged with possession of a weapon and resisting arrest.

arrest cuffs

The officers claimed they saw Gill, then a 34 year old barber, reaching for a handgun but Gill claimed he did not have a gun and was simply reaching into his waistband to show the officers that the bulge they asked him about was simply a phone.

During the arrest, Gill was struck in the face sustaining fractures and a loss of consciousness.

bones of the face

Gill was then taken in handcuffs to Kings County Hospital where he remained for three days, continuously cuffed to his bed, before he was taken to a holding cell for a few hours at Rikers Island and then released on bail.

After his acquittal on all charges, Gill sued the NYPD claiming damages for false arrest, malicious prosecution and battery.

On June 6, 2014, following the trial judge’s charge to the jury as to the elements required to prove the claims, the Kings County jury ruled in favor of plaintiff finding that the police falsely arrested Gill because they did not have reasonable cause to make the arrest, they used excessive force in effecting the arrest and acted maliciously in initiating prosecution.

The jury then awarded damages in the sum of $590,000:

  • $15,000 for the false arrest,
  • $75,000 for malicious prosecution, and
  • $500,000 for battery – pain and suffering for the seven years from the date of the incident to the date of the verdict

In Gill v. City of New York (2d Dept. 2017) both the liability and damages verdicts have been affirmed.

Nowhere in the decision is there any information as to the injuries sustained by the plaintiff. Here are the injury details:

  • displaced fracture of the zygomatic arch with flattening of the left cheek
  • open reduction surgery to repair the fracture using a Gillies Zygoma Elevator
  • displaced nasal fracture
  • trauma to left ear, substantial facial swelling
  • three day admission at Kings County Hospital, plus one day for surgery at Long Island College Hospital on 6/26/07

Gillies approach zygoma fx

Plaintiff required pain killing medication for several months and was left with scarring around his nose. Although surgery was recommended for his nose, plaintiff declined and his nose healed while the scars faded and he made no claim for the scars at trial.

Inside Information:

  • As set forth in the appellate court’s decision, the jury’s verdict sheet included $500,000 for malicious prosecution but lawyers for both sides and the trial judge agreed that this was an error and that the $500,000 was meant for the excessive force battery pain and suffering claim.
  • There was no testimony from any physician and plaintiff did not assert a claim for future pain and suffering. He conceded that he was able to resume all of his pre-arrest activities without limitations.
  • The amounts awarded by the jury were the exact amounts requested by plaintiff’s attorney in his summation.

 

 

 

Court Affirms Liability against City in Street Defect Trip and Fall Case but Substantially Reduces Award for Future Medical Expenses

Posted in Hip and Pelvis Injuries

On November 5, 2005 at about 7:30 p.m., Theresa Guss was injured in a trip and fall accident in the street when she stepped into a large rectangular deep hole in the street while getting out of the back of a taxicab at the curb abutting her home on Ainslie Street in Brooklyn.

The cab driver heard her scream in pain, found her on the ground and helped Ms. Guss get into her home. It was a Friday night and Ms, Guss, then 54 years old, stayed at home in pain until Monday when she called an ambulance to take her to the local hospital complaining of severe left hip pain and an inability to walk due to the pain. She was diagnosed with a left hip fracture and admitted for surgery.

Anterior view of hip bone and the head of the femur with femural neck fracture; SOURCE: rendered from 3D_normal_hip.mb; orthosurg_replace-hip-total-arthritis_normal_anatomy_line MOD femural neck fracture line Reference: using Zygote skeletal model and texures

In the ensuing lawsuit against the City of New York, on June 11, 2013, a Kings County jury determined that the city had created the hole in the street during an excavation there six weeks before the incident and, therefore, despite the absence of prior written notice, the city was liable for plaintiff’s injuries and resulting monetary damages.

In Guss v. City of New York (2d Dept. 2017), the liability verdict was affirmed but the appellate court agreed with the city that a substantial portion of the damages award was excessive.

The jury awarded $650,000 for pain and suffering   ($433,333 past – 7 1/2 years, $216,667 future – 8 years), an amount that was not challenged on appeal or addressed by the appellate court.

In addition to the award for pain and suffering, the jury awarded $2,025,600 for future medical expenses which included $1,344,000 for future nursing home costs. Finding that aspect of the future medical expenses award unsupported by the evidence and duplicative of the $681,600 awarded for other future medical expenses, the court reduced the future medical expenses award to $681,600.

Here are the details as to the eight years of future medical expenses awarded by the jury, as set forth on the verdict sheet:

  • doctors’ care – $139,600
  • physical therapy – $14,400
  • mental health care – $14,400
  • nursing home care – $1,344,000
  • medications – $480,000
  • transportation – $19,200
  • medical equipment – $14,000

The medical expenses awards were based upon the testimony of plaintiff’s expert in physical medicine and rehabilitation who examined plaintiff in 2011 and reviewed all of her medical records. The city did not produce an expert of its own. Instead, the city argued successfully that, in view of the fact that by the time of trial in 2013 plaintiff was already residing at Nesconset Center for Nursing and Rehabilitation since 2011 and was bedridden, suffering not only from the hip fracture and related complications but also from serious and significant pre-existing medical conditions such as chronic obstructive pulmonary disease (COPD), osteoporosis and depression, and in view of the fact that the nursing home medial records and invoices were not produced, there was duplication and speculation in the award as to the $1,344,000 awarded for nursing home care.

nesconsent

Here are details of the injuries plaintiff sustained in this incident:

  • left femur head and neck fractures requiring total hip replacement surgery two days after the accident and a nine day hosiutal admission
  • infection complication requiring removal of hardware and revision surgery in July 2006
  • multiple hip dislocations
  • two additional surgeries for hip dislocation complications with new hip replacements
  • exacerbation of pre-existing osteoporosis
  • exacerbation of anxiety and depression that pre-existed since 2003
  • bedridden after fourth surgery requiring permanent residence in nursing home

Inside Information:

  • Plaintiff’s expert stated that due to Ms. Guss’s extensive pre-existing exacerbated medical problems “she could probably live at least another five years” but “probably not ten.”
  • Plaintiff was too  sick to testify at trial;  at the time, she was in and out of hospice care for a year. Instead, the jury was shown her videotaped deposition from two months earlier and was read other pre-trial testimony from plaintiff as well.
  • Ms. Guss still resides in a nursing home.

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.