Header graphic for print

New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Appellate Court Addresses Damage Awards in Case of Excessive Force by Police Officers

Posted in Hand Injuries, Psychological Damages

On May 30, 2008, at about 8:30 p.m., then 49 year old William Cardoza was drinking beer outside in front of the Bronx building where he lived. New York City Police Department (“NYPD”) officers assigned to address quality of life issues, such as public drinking, observed Mr. Cardoza with an open container. In the next two minutes, the officers  approached him and asked for identification whereupon the parties confronted one another and Mr. Cardozo was placed under arrest.

While the parties disputed whether Mr. Cardoza refused to provide identification or simply didn’t understand the officers due to a language barrier, it was undisputed that as he was taken into custody, Mr. Cardoza was pepper-sprayed and hit in his right hand repeatedly by an officer’s baton. A videotape captured the entire incident.

cameras

In his ensuing case alleging excessive force, false arrest and resulting injuries, on April 6, 2012, after 12 days of trial, a Bronx County jury awarded Mr. Cardoza pain and suffering damages in the sum of $2,500,000 ($500,000 past – four years, $2,000,000 future – 15 years) as well as punitive damages in the sum of $1,500,000 ($750,000 against each of the two involved officers).

The trial judge ordered a reduction in the pain and suffering damages to $350,000 ($200,000 past, $150,000 future) and vacated the awards for punitive damages.

In Cardoza v. City of New York  (1st Dept. 2016), the appellate court reinstated the verdict for pain and suffering damages to the extent of $1,650,000 ($400,000 past, $1,250,000 future) and it reinstated $150,000 of the punitive damages awards ($75,000 against each officer).

As set forth in the court’s lengthy and well-written decision, plaintiff sustained right (dominant) hand and finger fractures and post-traumatic stress and major depressive disorders as a result of the incident.

hand5

Here are the injury details:

  • displaced, comminuted open fractures to second metacarpal bone of right hand
  • open reduction internal fixation surgery to repair the fractures with K-wires
  • six day hospitalization, handcuffed and shackled to bed until discharged
  • surgical removal of wires after 10 weeks
  • physical therapy 2-3 months
  • development of scar tissue with resultant permanent loss of range of motion and diminished grip strength, manual and finger dexterity, all resulting in an inability to perform many work-related activities such as holding tools, painting and making apartment repairs and difficulty with activities of daily living such as getting dressed
  • psychiatric/emotional injuries including feeling isolated, useless, helpless and depressed, inability to sleep, recurring nightmares, fear of seeing policemen, and suicidal ideations, all of which plaintiff’s treating psychiatrist opined left him with permanent post-traumatic stress and major depressive disorders requiring four years of psychiatric treatment to the date of trial, 15 more years of treatment in the future and anti-depressant and sedative medications including Lexapro, Ambien and Trazodone

adult_hand_fx_metacarpal_collage

Inside Information:

  • Hugo Morales, M.D., plaintiff’s treating and testifying psychiatrist, is the only Spanish speaking psychiatrist in the Bronx.
  • Plaintiff had been a building superintendent for 14 years and at the time of his arrest was working in that capacity part-time. He was unable to return to work until about four months later (but only in a limited capacity); however, he did not assert a lost earnings claim.
  • Defendant’s settlement offer of $100,000 was rejected and plaintiff’s counsel asked the jurors to award pain and suffering damages of $1,600,000 plus punitive damages of $1,000,000 against each of the two police officers.
  • Plaintiff’s attorney, Seth A. Harris, stated that this case represented one of the most compelling excessive force cases he’s seen in 25 years. He also said that both police officers will be indemnified for the punitive damages awards and will not have to pay out of pocket.

 

Appellate Court Addresses Pre-Impact Terror, Conscious Pain and Suffering and Pecuniary Damages in Pedestrian Knockdown Wrongful Death Case

Posted in Wrongful Death

On December 2, 2009 at about 7 p.m., a woman was walking across the street at the intersection of Avenue U and East 71st Street in Brooklyn. A city bus driver had stopped for a red light before turning right onto Avenue U when his bus struck and killed the pedestrian, 65 year old Virginia McKibbin.

A pedestrian crosses the street in front of a city bus at a downtown crosswalk, Wednesday, July 29, 2009, in Des Moines, Iowa. Responding to a stubborn spate of buses hitting pedestrians, the Des Moines bus system will require drivers to honk every time they turn. And because all of the accidents happened when buses were turning left, drivers now have new routes that allow only right-hand turns downtown. (AP Photo/Charlie Neibergall)

In the ensuing lawsuit against the bus driver and owner, on December 20, 2012,  a Kings County jury apportioned fault for the accident 75 % to the driver and 25% to the pedestrian.

The jury then awarded pecuniary damages to the decedent’s three adult daughters in the sum of $1,200,000 (10 years) but awarded zero for pre-impact terror and zero for conscious pain and suffering.

In Keenan v. Molloy (2d Dept. 2016), the appellate court:

  1. affirmed the jury’s verdict awarding zero damages for pre-impact terror and zero damages for conscious pain and suffering, and
  2. reduced the pecuniary damages award to the principal sum of $600,000 (i.e., $800,000 reduced by 25% for comparative fault).

Under New York law, pecuniary damages may be awarded to a decedent’s children for their monetary losses caused by their parent’s death.  Jurors may not make any award for sorrow, mental anguish, injury to feelings or for loss of companionship. Among the considerations jurors are charged with considering in this regard are (a) the earnings a decedent would have spent in the future for the care and support of her children and (b)  the value of the intellectual, moral and physical training, guidance and assistance their mother would have given them had she lived.

The appellate court determined that $800,000 for pecuniary damages is reasonable in this case based upon the testimony of Ms. McKibbin’s three daughters (who were 39, 42 and 45 years old at the time of trial) as to their loss of parental guidance. All four lived close to one another in Brooklyn, shared Sunday dinners every week and spent a great deal of other time together each week (along with the daughters’ three young children). There was significant unrebutted testimony about how close the daughters and grandchildren were with the decedent, how she provided them all with counseling especially during difficult times and how Ms. McKibbin was “the glue that held their family together.”

There was also evidence that the decedent spent a great deal of time caring for her grandchildren, babysitting for them, cooking for them, having weekend sleep-overs and helping to teach and care for her special needs grandson.

In a post-trial decision, the presiding judge characterized the nature and quality of the relationship between Ms. McKibbin and her family as “exceptional and significant” and stated that her every day involvement with her family could easily support the jury’s $1,200,000 award for loss of parental guidance and support.

Emotional pain and suffering damages for a decedent’s pre-impact terror may be awarded when there is proof that between the moment a decedent realized she was going to be gravely injured and die and the moment she sustained a physical injury:

  • she was aware  of the danger that caused her death,
  • she was aware of the likelihood of grave injury or death, and
  • she suffered emotional distress as a result of her awareness of her impending grave injury or death.

In this case, the defense argued successfully that there should be no award for pre-impact emotional distress because (a) a scream that the bus driver heard at the time of impact may have come from someone other than the decedent and (b) Ms. McKibbin was likely rendered unconscious immediately upon impact. Plaintiff contended that because the accident occurred without witnesses (the bus had no passengers), the only person who could have screamed was the decedent.

Pre-death pain and suffering damages (distinct from emotional distress damages for pre-impact terror) may be awarded for pain and suffering during such time as a decedent was conscious from the moment of injury to the moment of death.

Here, the defendants argued successfully that no award at all should be made as to this aspect of damages because, as opined by their expert trauma physician,  Ms. McKibbin lost consciousness on impact. Plaintiff’s expert opined that when Ms. McKibbin was being run over by the bus “she knew what was happening to her” and she “could feel pain” but he did not offer any opinion as to whether she was conscious when found moments later in the street (“I don’t know.”). A passerby testified  that while Ms. McKibbin was on the ground he heard very shallow breathing, like a small gasp for air, but the defense expert testified that a person exhibiting such so-called agonal breathing who sustained massive trauma like Ms. McKibbin did in this case generally would be unconscious.

Ms. McKibbin was found unconscious by ambulance personnel and confirmed dead on arrival at the hospital 30 minutes after the accident.

Inside Information:

  • Ms. McKibbin had worked for 20 years in a title insurance office earning about $42,000 in her last full year of work in 2008.
  • There was substantial testimony from the daughters about the financial assistance their mother gave to them and their children from time to time for things like rent, utility bills and divorce proceedings. There was no accompanying documentary evidence to support those claims and the only specific testimony in this regard was from one of the daughters who testified that her mother gave her about $1,250 per month.
  • In his summation, plaintiff’s counsel, Christopher Meagher, asked the jury to award $1,000,000 for pecuniary damages sustained by the decedent’s three adult daughters (two divorced, one never married) who, he said, lived in a solar system that revolved around their mother. Exercising their prerogative, the jury determined that this item of damage exceeded counsel’s request.
  • With the 25% reduction for comparative fault, the jury’s award was reduced to $900,000. While the appellate court then reduced the gross award to $800,000 – with the result being a net award of $600,000 – the award remains quite significant and at the high end of such awards to adult children in New York wrongful death cases.

 

 

Medical Malpractice Verdict Affirmed in Delayed Cancer Diagnosis Case

Posted in Medical Malpractice

On November 4, 2003, Jennifer Luna, then 30 years old and 12 weeks pregnant, consulted her internist because she was not feeling well. The doctor conducted a physical examination and concluded that she had an enlarged thyroid which an ultrasound then confirmed along with the presence of five solid nodules. Ms. Luna was referred to an endocrinologist who examined her two weeks later and told her that her thyroid condition was due to her pregnancy and was benign.

thyroid_nodule32568691_s_0

It was not until December 2, 2004, though, that a biopsy was performed which revealed that Ms. Luna had medullary thyroid cancer.

In her ensuing malpractice lawsuit, a Suffolk County jury determined on December 1, 2011 that the doctors should have diagnosed the cancer 13 months before and that their failure to do so caused pain and suffering damages in the sum of $4,600,000 ($1,200,000 past – eight years, $3,400,000 future – 15 years).

The defendants made post-trial motions  to set aside the jury verdict on the issues of liability and damages and for a judgment dismissing the complaint. The trial judge granted the motions and plaintiff appealed.

In Luna v. Spadafora  (2d Dept. 2015), the judgments of dismissal entered pursuant to the post-trial decisions were reversed and the jury verdict on the issues of liability and damages was reinstated.

The 13-month delay in diagnosing Ms. Luna’s cancer caused the following injuries:

  • a change in the stage of the cancer from Stage II to Stage IV
  • a worsened prognosis and increased damages due to the metastasis of her cancer to her lymph nodes and eventually to her lung
  • a decreased 10-year survival rate – from 85-90% to only 40-50%
  • more extensive surgery to remove the cancer
  • two unnecessary surgeries (to remove additional tumor growth and implant a prosthesis)

thyroid_Tstage2

Inside Information:

  • Plaintiff had been employed as an information technology manager in a law firm and claimed that she became unable to work in March 2007. She was awarded damages for past loss of earnings in the sum of $358,875 and future loss of earnings for 28 years at the rate of $58,000 per year in the total sum of $1,624,000 (with a 2.5% growth rate).
  • Plaintiff’s spouse was awarded $250,000 for his loss of services/consortium claim.
  • Following the appellate court decision, the defendants moved to reargue and for leave to appeal to the Court of Appeals seeking, in part, a clarification as to the status of their claims that the damages awards were excessive. The motions were denied.
  • Plaintiff has survived to date, a fact that defendants argued is new and supported their request for reargument and a new trial. Plaintiff argued that this fact should not be considered on reargument as it was not in evidence before the jury and in any event about half of all people diagnosed with Stage IV metastatic medullary thyroid cancer will survive past 10 years.

Shoulder Injury Pain and Suffering Verdict Affirmed; Courts Reject Plaintiff’s Claim of Inadequacy as to Future Damages

Posted in Shoulder Injuries

On May 2, 2007,  fifty-nine year old Mary Lou Knoch was about to cross the roadway in front of 625 Fulton Street in downtown Brooklyn when she tripped and fell from a city sidewalk into the roadway.

Site of the Accident - 625 Fulton Street Brooklyn

Site of the Accident – 625 Fulton Street Brooklyn

Ms. Knoch sued the City of New York claiming that the sidewalk was defective,  the city had prior written notice of the defect and it had failed to properly repair the condition. A Kings County jury agreed with the plaintiff to an extent – it determined that the city was 60% at fault for the accident (and that plaintiff bore 40% of the fault).

On December 14, 2012, the jurors awarded plaintiff  pain and suffering damages in the sum of $200,000 ($150,000 past – 4 1/2 years, $50,000 future – 20 years).

On May 20, 2013,  the trial judge issued a decision denying plaintiff”s post-trial motion in which plaintiff argued that the $50,000 award for future pain and suffering damages was inadequate and in Knoch v. City of New York (2d Dept. 2016) the appellate court affirmed the judge’s decision.

Here are the injury details (about which the appellate court made no mention).

  • displaced fracture of the greater tuberosity of the left humerus (plaintiff’s dominant arm)
  • partial rotator cuff tear and possible labral tear
  • post-traumatic adhesive capsulitis (“frozen shoulder”) leaving plaintiff with very limited range of motion, daily and continuous pain, needing help to get dressed, unable to lift her grandchildren, iron or resume her favorite recreational activity (fly fishing)

classification+of+proximal+humerus+fracture+broken+shoulder

Ms. Knoch was taken by ambulance to the local hospital and treated with a sling and painkillers. Two days later, she saw an orthopedic surgeon who prescribed physical therapy (which she started two months later) and later recommended surgery. Ms. Knoch, a 36 year IRS employee (a facilities manager, in charge of three buildings) who was on the job at the time of her fall, returned to work a month or so after the accident while continuing physical therapy until December 2007 (when she started with home exercises).

The defense argued that the jury award for future damages was adequate because plaintiff failed to mitigate her own damages in that (a) she discontinued physical therapy on her own (in part because she did not want to get home late from work and did not want to go during the work day – “there was no time to schedule in physical therapy”) and (b) she failed to undergo the surgery her doctor recommended.

The surgery – an arthroscopic procedure known as lysis of adhesions with manipulation under anesthesia – would have involved cuttting the scar tissue and adhesions to allow more shoulder movement.

frozen-shoulder-manipulation

Plaintiff argued that the mitigation charge was unwarranted. As to physical therapy, she pointed out that she continued with home exercises and as to surgery, she testified she was anxious to get approval from her workers compensation carrier but she was turned down and could not afford it.

The jury also awarded plaintiff future medical expenses in the sum of $31,000.

  1. $18,000 – for the cost of surgery, plus
  2. $10,000 – for one year of post-surgery physical therapy, plus
  3. $3,000 – for prescription medications.

Plaintiff argued on appeal that the jury’s award of these future medical expenses made it clear that it was inconsistent and inadequate to award only $50,000 for 20 years of future pain and suffering.

Defendant, though, argued that:

  1. it was not at all clear that the workers compensation carrier denied  requests to approve the surgery (proof was essentially the oral testimony of plaintiff and some notes from a treating doctor who was not called to testify),
  2. there was insufficient proof that plaintiff could not afford to pay for the surgery herself, and,
  3. the jury must have correctly concluded that plaintiff had already improved somewhat by the time of trial and that surgery would also improve her condition.

Inside Information:

  • The defendant repeatedly failed to produce evidence during the pre-trial discovery phase of this lawsuit that it was ordered to produce and the trial judge issued a $2,500 monetary sanction that was upheld on appeal.
  • Plaintiff admitted on cross-examination that one of the reasons she stopped physical therapy was that if she went during work hours the time she used would not count towards her pension. She knew then that she’d be retiring soon and in fact did so in 2011 shortly before trial.
  • The defense orthopedic surgery expert, Alan J. Zimmerman, M.D., testified that plaintiff’s fracture healed well, she did not develop adhesive capsulitis nor did she sustain a rotator cuff tear and she did not need surgery. The plaintiff’s expert, Laith Jazwari M.D., testified to the contrary and opined that plaintiff had a permanent injury with a 75% loss of use of her shoulder and a poor prognosis because she didn’t have the surgery.

 

 

 

Pain and Suffering Awards Affirmed for Truck Driver’s Injuries to Ankle, Knee and Back Due to Fall at Gas Station

Posted in Ankle Injuries, Back Injuries, Knee Injuries

On February 19, 2009, Ruben Corena drove his truck to the Sunoco gas station at 880 Garrison Avenue in the Bronx. While walking back to his truck after paying for his fuel, Mr. Corena fell and sustained injuries due to cracked pavement and oil on the ground.

Sunoco 990 Garrison Ave. Bronx

The Site of Mr. Corena’s Fall

On January 8, 2013, in the ensuing lawsuit against the property owner and lessor, the jury returned a verdict finding that the premises was unsafe and defendants were fully at fault for the accident and plaintiff’s injuries. The same jurors then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – four years, $200,000 future – 20 years).

In Corena v. BBZZ Equities, Inc., (2d Dept. 2016), both the liability and damages verdicts have been affirmed.

As to injuries, the appellate court decision mentions only that plaintiff fell to the ground, his leg became swollen and he had a protruding bone. Here are the injury details:

  • Left Leg: spiral fracture of the distal tibia and comminuted fracture of the fibula
  • Surgery #1 on 2/20/09:  external fixation to try to bring the bone together to heal, requiring a seven day hospital admission
  • Surgery #2 in April 2009: removal of external fixator due to an infection where a metal screw had been inserted into the ankle
  • Surgery #3 on 1/25/10: open reduction internal fixation (“ORIF”) with bone graft from hip, metal plate and eight screws implanted to repair the tibia where the fracture had been infected and was not healed, requiring a five day hospital admission
  • Torn meniscus left knee requiring surgery # 4 on 7/22/10 to arthroscopically repair (healed as of trial)
  • Back – herniated disc at L4-5 (surgery has been recommended)

tib fib fx types

Mr. Corena testified that he remained in near constant ankle and back pain with leg cramps and shooting pain in his back that left him with a loss of mobility and balance requiring a cane to walk and that he is unable to take long walks, play soccer or basketball, lift or carry his grandchildren, sit for long periods or go out dancing with his wife.

Plaintiff’s expert orthopedic surgeon opined that his ankle and back injuries and pain are permanent, he has ended up with one leg slightly shorter than the other (requiring a lift in his shoe), his prognosis is “guarded to poor” and manual work is out of the question while sedentary work wold be “hard because he can’t sit.” Defendant’s expert orthopedic surgeon testified that plaintiff’s back injury was not related to the accident (and that in any event he will not need back surgery) and that while plaintiff’s tibia injury is permanent, he does not require a cane and can perform sedentary work.

Mr. Corena, 51 years old at the time of trial, had been a truck driver for the two years before his accident. He never returned to work and the jury awarded him past loss of earnings damages in the sum of $150,000. He made no claim for future loss of earnings. Defendants argued that the entire past loss of earnings award should be set aside because plaintiff did not testify as to  his job duties, his hours and his wages except to the extent that he presented in evidence his W-2 statements for 2008. The trial judge agreed, in part, reducing that aspect of the verdict to $75,000. The appellate court, though, reinstated the entire $150,000 verdict for past loss of earnings finding that plaintiff’s documentation was sufficient and his claim for past wages was not speculative.

Plaintiff’s wife of 26 years, Maritza Corena, was awarded damages for loss of consortium in the sum of $55,000 ($40,000 past, $15,000 future – 10 years). These awards were affirmed on appeal over defendants’ argument that they were excessive and based simply on her testimony that “everything” changed after the accident and her husband “does nothing” around the house. There was more, though. Plaintiff himself testified that for almost three months after the accident his wife would give him showers in the kitchen sink and wash his leg. Also, before the accident the couple would go out dancing, go to parties and visit family members, things he could no longer do. Furthermore, he described how frustrated he was regarding his disabilities and how this led to his losing his temper and fighting with his wife.

 

 

Appellate Court Orders Reduction in Pain and Suffering Awards for Knee and Back Injuries

Posted in Back Injuries, Knee Injuries

On January 23, 2009 Elgin McEachin was driving his 2003 Chevy Trailblazer southbound on Saratoga Avenue through its intersection with Park Place in Brooklyn. At the same time, a New York City Police Department lieutenant was on the job driving his unmarked 2005 Ford Escape SUV eastbound on Park Place intending to make a right turn and head southbound on Saratoga Avenue. The two cars collided violently in the intersection and the then 49 year old McEachin was injured.

In the ensuing lawsuit, a Kings County jury determined that the crash was 85% the fault of the police officer (with 15% of the blame assigned to Mr. McEachin).

The jury then awarded plaintiff pain and suffering damages in the sum of $1,100,000 ($600,000 past – 4 1/2 years, $500,000 future – 20 years).

In McEachin v. City of New York (2d Dept. 2016), the pain and suffering awards were reduced to $750,000 ($400,000 past, $350,000 future).

As set forth in the court’s decision, plaintiff sustained injuries to his lumbar spine and his left knee. Here are the injury details:

Left Knee:

  • Tri-compartment degenerative arthritis with grade four chondromalacia (extensive cartilage damage) requiring arthroscopic surgery on 3/20/09 to remove torn meniscal fragments
  • Physical therapy for six months after surgery
  • Constant and chronic pain leaving plaintiff unable to walk for long periods, bend down or stand up without pain, play basketball or lift weights, or pick up his seven year old daughter
  • Needs total knee replacement surgery in the future

mri-of-patellar-disorders-39-728

Back:

  • Lumbar disc fissures causing low back pain with radiculopathy
  • Three sessions of very painful epidural steroid injections
  • Experimental spinal cord implant procedure (to block the transmission of pain) in October 2009 leaving plaintiff with wires extruding from his back and a remote control device to control electric impulses
  • Permanent implantation of spinal cord stimulator device in December 2009 leaving plaintiff with three 28 inch long wires and a battery pack all inside his body (the battery pack implanted into one of the buttocks must be replaced every 5-7 years)

Spinal_Cord_Stimulator-1-small

Inside Information:

  • Plaintiff had been in prior motor vehicle accidents including one in 2003 in which he injured his lower back. He testified, though, that the 2003 injury resulted in minor treatment and he fully healed quickly.
  • Plaintiff injured his left knee in 1993 while playing football following which he underwent surgery for a torn anterior cruciate ligament; however, he fully recovered from that injury as evidenced, for example, by the fact that for many years thereafter until before the 2009 accident he played in a basketball league without pain or disability.
  • The defense did not call any medical experts of its own to testify as to plaintiff’s injuries and/or their causation; plaintiff called both his knee surgeon and his back pain management physician.
  • The jury deliberated over a three day period at one point finding that the police officer was negligent but had not proximately caused plaintiff’s injuries (a finding they reversed after additional deliberations).
  • At the close of the case, one of the jurors commented on the record that “[a]s much as we disagreed on things, I think every single person, juror, wanted to do the right thing. I think the moral responsibility of this jury is something I am really proud of about this country.”

Verdict Affirmed in Delayed Diagnosis Medical Malpractice Death Case

Posted in Medical Malpractice, Wrongful Death

Bennett Rose underwent three colonoscopies – on January 3, 2003, December 14, 2006 and October 11 2007, each indicating the presence of polyps (which were removed), none indicating any malignancy or cancer. About two months after the third test, though, Mr. Rose, then 72 years old, started feeling unusually weak and tired. He was diagnosed with anemia (very low hemoglobin), transfused in the hospital and he started feeling better.

The anemia returned, though, and a repeat colonoscopy on April 28, 2008 revealed a large eight centimeter cancerous tumor in the ascending colon which had metastasized and spread to his liver. He was diagnosed with cecal carcinoma which caused his death on July 15, 2009.

On March 26, 2013, in the ensuing medical malpractice wrongful death case, a Nassau County jury found that the gastroenterologist who performed the three colonoscopies had departed from accepted medical practice by failing to observe the tumor during the colonoscopy on October 11, 2007. The jurors then awarded damages in the sum of $700,000 ($500,000 for decedent’s pre-death conscious pain and suffering  and $200,000 for Mr. Rose’s wife’s loss of services – each for the 15 month period from 4/28/08 to 7/15/09).

In Rose v. Zinberg  (2d Dept. 2015), both the liability and damages verdicts have been affirmed.

Here are some of the damages details, none of which are discussed in the court’s decision:

  • fear of impending death upon diagnosis of metastasis
  • surgery on May 6, 2008 – laparoscopic partial colectomy and removal of the terminal ileum with ileocolostomy, along with removal of a tumor
  • 29 chemotherapy treatments with side effects including fingertips and toes neuropathy, blunted taste, trouble sleeping and a loss of 35 pounds
  • loss of performance status
  • diminished choices as to palliative treatment
  • advancement of metastatic disease, hastening of death and loss of quality of life
  • hospitalized final 10 days before death

While plaintiff’s medical expert conceded that by October 11, 2007 (the date the jury found that malpractice occurred) Mr. Rose’s cancer had already spread and that there was no cure, he explained “performance status” and testified that had the cancer been caught six months earlier, Mr. Rose’s overall condition would have been better, the cancer would not have grown as fast, his quality of life would have been better and he could have had more, better and less sickening treatment.

The defendant argued that plaintiff’s expert’s testimony was conclusory and speculative and that there was insufficient proof that Mr. Rose suffered any injury separate and apart from his cancer itself which was proximately related to the six month delay in diagnosis.

Mrs. Rose testified that during her husband’s final 15 months he depended upon her and couldn’t do things in the house such as empty the garbage and walk the dog so she “took over whatever had to be done.” He did, though, work in his nail polish manufacturing business with his wife every day until the last 10 days of his life.

Inside Information:

  • In his closing argument, plaintiff’s attorney stated as to damages: “I can only tell you that this case is certainly a mid six-figure, possibly even low seven figure number, depending on how people feel about compensation for pain and suffering.” Defense counsel did not suggest any figures, instead simply arguing that there was no malpractice.
  • After the judge charged the jury, they deliberated for several hours before sending out a note asking if one of the jurors could “abstain from fixing a monetary amount.” They returned their 5-1 verdict 45 minutes later.
  • The defendant sought leave to appeal to New York’s highest court, mainly arguing that plaintiff had failed to prove proximate cause in addition to the lack of evidence of consequential damages.  The motion was denied.

Pain and Suffering Award for Boy’s Leg Injury Affirmed on Appeal

Posted in Leg Injuries, Scars

On August 7, 2007 ten year old Roy Nelson, was sitting on a bench outside his apartment complex at 1125 East 229th Street in the Bronx when he was hit in the leg by a rock propelled at high velocity from a nearby lawnmower. It turns out that an employee of the housing development owner, the New York City Housing Authority (NYCHA), was mowing the lawn over a rocky area.

Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.

Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.

Roy’s father sued the housing authority on behalf of his son. The defendant conceded liability for the incident on the eve of trial and the matter proceeded to a trial on damages only.

On May 21, 2012, the Bronx jury awarded pain and suffering damages in the sum of $250,000 (all past – five years).

Both parties made post-trial motions – plaintiff argued that some award of future pain and suffering damages should have been made while the defendant argued that the $250,000 award was excessive. The trial judge denied both applications.

In Roy L. N., Jr. v. New York City Housing Authority (1st Dept. 2015), the appellate court upheld the jury verdict finding that $250,000 for past pain and suffering is not excessive. The issue of future damages was not addressed by the court because plaintiff did not appeal from the trial judge’s refusal to add such an award.

As set forth in the court’s decision, Roy sustained a spiral fracture of his left tibia along with soft tissue damage to the surrounding area. He was hospitalized for three days, underwent debridement of dead tissue and wore a hard cast for 6 1/2 weeks. He recovered with an unsightly keloid scar and his ability to engage in sports was significantly impeded because of the muscle and tendon damage.

Here are further injury details:

  • The fracture was proximal/mid tibia, open and extended through the cortex.
  • Initial hospital treatment included a massive irrigation and debridement to dilute the wound and remove dead tissue.
  • After his hospital discharge, Roy had to use crutches to ambulate and stayed home in the summer with his leg elevated.
  • Upon return to school in September, Roy was still casted and could not participate in any physical activities until January.
  • The keloid scar was 2 1/2 inches long and one inch wide; it is permanent and “cannot be improved.”
  • Roy still had leg pain at the time of trial but had returned to sports such as basketball within three months of the incident.

Inside Information:

  • In summations, plaintiff’s counsel asked the jury to award $300,000 for past pain and suffering plus $400,000 for the future. Defense counsel contended that plaintiff had fully healed and should be awarded no more than $50,000.
  • Each side produced an orthopedic surgeon. Plaintiff’s expert, Leonard Harrison, M.D. testified  that Roy had a mild residual condition that left him walking with his left foot tuned out and that he would always have pain when running, jumping and in cold weather. Defendant’s expert, Herbert Sherry, M.D., opined that plaintiff made an excellent recovery, needs no further treatment and has no limitations.
  • Plaintiff admitted that he’d been playing sports ever since a few months after his accident and that he can “slash down the lane” in basketball and run fast as a wide receiver in football, “but not as fast” as he used to.

Appellate Court Slashes Pain and Suffering Verdict for Police Officer in Car Accident

Posted in Brain Injuries, Knee Injuries

On August 18, 2004 at about 6:30 p.m., Nikura Andino was on duty, riding as as passenger in a New York City Police Department car that was responding to a robbery in progress driving with lights flashing and sirens blaring.

nypd

At the same time, Ronald Mills was driving  a New York City Transit Authority Chevy Suburban and the two vehicles collided at the intersection of Boston Road and Pelham Parkway in the Bronx.

The passenger side impact to the police car caused the 36 year old Officer Andino’s head to strike her windshield. She lost consciousness and woke up in an ambulance with head, neck and back pain as well as dizziness and nausea. She was admitted to the hospital for two days and diagnosed with a concussion.

In the ensuing lawsuit, on March 25, 2013, a Bronx County jury found that the transit authority driver was fully at fault and they awarded Andino pain and suffering damages in the sum of $23,600,000 ($600,000 past – nine years, $23,000,000 future – 37 years).

The jury also determined that plaintiff was permanently disabled from work and in need of substantial future medical treatment. Accordingly, they awarded the following damages (as slightly modified by stipulation to conform to the proof):

  1. past and future lost earnings in the sum of $2,671,541 ($282,956 past, $2,388,585 future – 19 years),
  2. future loss of pension benefits in the sum of $2,486,740 (18 years), and
  3. future medical expenses in the sum of $2,388,585 (19 years).

In Andino v. Mills (1st Dept. 2016), the appellate court agreed with the defense and held that the pain and suffering award was excessive and ordered a huge reduction to $3,300,000 ($600,000 past, $2,700,000 future).

The decision mentions that plaintiff sustained a brain injury with permanent cognitive impairments, headaches, nausea and dizziness as well as injuries to her knees resulting in three surgeries and the need for a future knee replacement.

Total Knee Replacement

Here are additional injury details:

  • Brain – concussion with axonal shearing causing observable nystagmus indicative of brain injury;  “totally debilitating” migraine headaches; permanent impairments of concentration, speech and memory affecting everyday life; continued nausea,  dizziness and vertigo; increased susceptibility to development of Alzheimer’s, Parkinson’s and other degenerative conditions of the brain

concussion2

  • Left Knee surgery #1 on 3/18/05 – torn medial meniscus repair under general anesthesia with 10 mm suture anchors
  • Left Knee surgery #2 on 2/3/06 – partial medial menisectomy, chondroplasty of the patella and medial femoral condyle
  • Left Knee surgery #3 on 7/11/12 –  partial medial and lateral menisectomies, debridement/microfracture of medial femoral condyle, chondroplasty of patella and anterior femur
  • Left Knee future surgery required – total knee replacement due to absence of cartilage and permanent pain and disability
  • Right Knee – torn meniscus (from overuse) that will require future menisectomy
  • Neck – C5-6 compression and nerve damage causing chronic and constant pain not relieved with medication and continuing trigger point and epidural steroid injections

The matter of pension benefits was the subject of much disagreement not only between the parties but also between the trial and appellate judges. Under CPLR 4545 , a trial judge may reduce a personal injury verdict if, after a hearing, the judge finds that any element of economic loss encompassed in an award will be replaced by a collateral source in whole or in part. To do so, though, the collateral source payment must represent reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.

A collateral source hearing was held in this case wherein it was established that as a consequence of her line-of-duty injury, plaintiff was deemed by the Police Department Pension Board to be disabled from her employment as a police officer and she was therefore receiving an accidental disability allowance (“ADR”) in the amount of $69,000 per year as of August 30, 2009 (equal to 75% of plaintiff’s final salary) and lifetime medical coverage.

Defendants contended that the ADR replaces both the earnings plaintiff would have received had she continued working as a police officer and the pensions she would have received upon retirement from the force and that therefore the ADR and health insurance benefits should offset the jury awards for loss of earnings, lost pension and future medical expenses. Plaintiff argued that the ADR is a substitute for an ordinary pension, not lost earnings.

The trial judge agreed with plaintiff and declined to offset any part of the award.

The appellate court, though, disagreed (in part) ruling that the future loss of pension benefits award should be offset by the total amount plaintiff was projected to receive under her disability pension, effectively reducing the $2,486,740 aspect of the verdict to zero.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $30,000,000 ($5,000,000 past, $25,000,000 future);
  • The attorney for the transit authority did not mention any figures in closing while simply suggesting that plaintiff’s brain injury claims were exaggerated and stating that it was up to the jurors to determine the significance of plaintiff’s knee injuries. In defendant’s appellate brief, though, it was conceded that “plaintiff’s brain injury obviously was a very serious injury” and she is “obviously entitled to a seven-figure award for her traumatic brain injury.”
  • Plaintiff underwent an electroencephalography (“EEG”) and computer axial tomography (“CAT”) scans that were negative for seizures and intercranial bleeding. An MRI showed subcordial white matter changes. There were no neuropsycholgical tests administered.

 

 

Appellate Court Reinstates Jury Verdict That was Reduced by Trial Judge in Elbow Injury Case

Posted in Elbow Injuries

On August 16, 2006, Nancy Cruz tripped and fell due to a defect in a rubber playground mat at a picnic in the Bronx. Ms. Cruz, then 49 years old, was attending a cookout with her five-year-old grandson when her foot became caught in a worn-out hole in the mat causing her to fall forward and strike her right (dominant) elbow on the ground.

In her ensuing lawsuit, the jury found that the playground owner and picnic sponsor – Bronx Lebanon Hospital Center – was negligent in failing to maintain the area in a reasonably safe condition and that its negligence caused Ms. Cruz’s injuries. Plaintiff was found to be free of any comparative negligence.

Bronx Lebanon Hospital Center

On September 7, 2012, the Bronx County jurors awarded plaintiff pain and suffering damages in the sum of $570,000 ($300,000 past – six years, $270,000 future –  27 years).

Following a post-trial motion by the defendant, the jury’s findings as to liability were upheld but the trial judge issued a decision on May 10, 2013 in which he agreed with the defense that the damages awards were excessive and he ordered a reduction to $200,000 ($140,000 past, $60,000 future).

In Cruz v. Bronx Lebanon Hospital Center (1st Dept. 2015), the liability verdict was affirmed and the jury’s $570,000 pain and suffering award was reinstated.

As set forth in the appellate court decision, plaintiff was taken via ambulance to a hospital where she was diagnosed with an avuslion or “chip fracture” and a dislocation of her right elbow. She was treated by closed reduction, her humerus bone was replaced into the ulna or socket of the elbow, her arm was casted and she was discharged to home.

Elbow Dislocation

Here are additional injury details:

  • multiple chip fractures still loose and floating around in plaintiff’s elbow inflicting pain that is permanent
  • four weeks in a cast, followed by four more weeks in a brace
  • physical therapy for two months 2-3 times a week
  • pain management treatment for almost two years including narcotic pain medication
  • loss of grip strength, range of motion and sensation resulting in inability to carry heavy shopping bags or her grandchildren and difficulty mopping and cleaning at home

bone fragment in elbow joint

Inside Information:

  • In reducing the future pain and suffering award to $60,000, the trial judge rejected the jury’s finding that plaintiff would endure pain and suffering for the entirety of her 27 year life expectancy. He noted that there was evidence plaintiff had a host of pre-existing significant medical problems  (including chronic obstructive pulmonary disease, diabetes and high blood pressure), she smoked cigarettes for decades and continued to do so and had a history of suicidal ideation and dependence upon cocaine and alcohol. He reduced her future period of pain and suffering to 13 years stating: “If the jurors believed that plaintiff had a reasonable possibility of surviving even an additional fifteen years, they must have been attending a different trial.”
  • Plaintiff’s settlement demand had been $150,000 against which the defendant made no offer. After the verdict (but before he reduced the award), the trial judge indicated that awarding future damages for a 27 year period troubled him but so did the fact that the defense made no settlement offer. He found that “unreasonable” especially because there could have been “a very reasonable settlement in this case and that possibility was foregone because no money whatsoever was offered.”
  • In closing arguments, plaintiff’s attorney asked the jury to award pain and suffering damages in the exact amounts they did – $300,000 for the past and $270,000 for the future.
  • There was no loss of earnings claim as plaintiff had been disabled for 30 years and was unemployed because of her medical problems mentioned above.

UPDATE: On March 24, 2016, the Court of Appeals affirmed the intermediate appellate court’s finding that legally sufficient evidence supported the jury’s verdict that defendant had constructive notice of the defect.