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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Large Damages Verdict Modified for Boy with Massive Injuries from Bicycle Accident

Posted in Brain Injuries

On December 5, 2004, Anthony Turturro was riding his bicycle on Gerritsen Avenue in Brooklyn when he was struck by a car speeding at about 55 miles per hour in a 30 m.p.h. zone. Anthony, then 12 years old, hit the passenger side of the vehicle and was then thrown into the air landing in the roadway directly on his head.

Photo of Bicycle

Anthony’s Bicycle at the Scene

On his behalf, Anthony’s mother sued Louis and Beatrice Pascarella (the vehicle driver and owner) as well as the City of New York (claiming that it was negligent in failing to perform proper and adequate studies of a long-standing speeding problem on Gerritsen Avenue which it knew about and with respect to which it failed to timely implement a specific plan to control or resolve).

On May 26, 2011, after a three week trial, a Kings County jury found that all parties were at fault for the accident and they apportioned liability as follows: the City (40%), Mr. Pascarella (50%) and Anthony (10%).

The jurors then awarded pain and suffering damages in the sum of $21,000,000 ($6,000,000 past – seven years, $15,000,000 future – 54 years) as well as medical expenses ($600,000 past, $11,500,000 future), future loss of earnings – 36 years ($3,000,000) and loss of Anthony’s services to his mother ($75,000).

The trial judge ordered a reduction of the damages for (a) future pain and suffering from $15,000,000 to $10,000,000 and (b) future medical expenses from $11,500,000 to $7,000,000. Plaintiff consented to the reductions but defendants appealed both on liability and damages grounds.

On appeal, in Turturro v. City of New York  (2d Dept. 2015), the pain and suffering damages have been further reduced and now stand at $10,000,000 ($3,000,000 past, $7,000,000 future). The appellate court did not modify the $7,600,000 for medical expenses or the $3,000,000 for loss of earnings.

As indicated in the court’s decision, Anthony sustained severe traumatic brain injuries as well as orthopedic and other injuries leaving him with very significant permanent deficits. Here are the injury details:

  • hospitalized until 12/28/04; then transferred to a rehabilitation hospital for one year and seven months; comatose four months
  • extensive skull fractures, including the bones within the skull supporting the brain, the frontal bone, the face and cheek bones, the forehead and the petrous bone
  • subdural hematomas requiring surgical evacuation
  • diffuse axonal injury throughout the brain tissue
  • extensive swelling of brain tissue requiring a craniotomy to remove of a piece of the skull (that was placed into the abdomen)
  • encephalomalacia (development of scar tissue) in the frontal and temporal lobes
  • hydrocephalus requiring insertion of a shunt running from inside the brain to the abdomen hydrocephalus
  • development of seizure disorder requiring permanent medication
  • severe impairments of speech and hands
  • orthopedic injuries including left ankle fractures, right knee flexion contracture requiring an arthrotomy and right hip ossification requiring surgery
  • several additional surgical procedures including attempted larynx repair, tracheostomy, placement of a feeding tube and insertion of a Greenfield filter (to prevent blood clots)
  • requires supervision to prevent choking due to inability to sense food or saliva in his mouth resulting from right facial weakness
  • requires service dog for companionship and to help with spastic gait causing limited mobility
  • requires assistance for many activities of daily living

Inside Information:

  • The city made a $3,500,000 settlement offer during the trial (and the Pascarellas offered their liability policy limits of $50,000) that was rejected by Anthony’s parents after  Anthony’s father was questioned to make sure he understood the danger of rejecting it. The judge told him that if the jury were to come back with a finding of no negligence against Anthony he would probably “do something about it” – meaning he believed Anthony was at least partially at fault.
  • In summations, the City suggested that if a pain and suffering award were to be made it should be about $300,00 for the past and $700,000 for the future while plaintiff suggested ranges: $5,000,000 to $10,000,000 for the past and $10,000,000 to $15,000,000 for the future.
  • The loss of earnings and future medical expense awards were supported by testimony from Richard Schuster, Ph.D., plaintiff’s expert in vocational assessments and life care planning costs.
  • The defendants did not call any witnesses to testify on the issue of damages.
  • The $75,000 loss of services award to Anthony’s mother was vacated by the appellate court because, while he clearly could perform no services such as household chores, there was no testimony about any services Anthony actually performed for her before the accident.
  • Under CPLR Section 1601, the City is exposed to only 44.44% of the pain and suffering damages while it remains jointly and severally liable for all of the economic damages.
  • The City is seeking leave to appeal the liability issues to the Court of Appeals.

Spinal Injury Pain and Suffering Verdict Affirmed

Posted in Back Injuries, Neck Injuries

On February 6, 2008, livery taxicab driver Alfonso Robles was involved in a crash with another car in Port Chester. He ended up in the hospital emergency room and in his ensuing lawsuit commenced on May 21, 2009 against the other driver and vehicle owner, on January 24, 2012, a Westchester County jury apportioned liability at 65% on the defendant driver and 35% on Robles.

The same jury then considered damages in a separate trial. They found that plaintiff’s injuries merited a pain and suffering award of $800,000 ($400,000 past – four years, $400,000 future – 37 years). Plaintiff’s motion seeking an increase in damages was denied by the trial judge in a post-trial decision on July 20, 2012.

On appeal in Robles v. Polytemp, Inc. (2nd Dept. 2015), the award has been affirmed.

As set forth in the appellate court decision, plaintiff, 37 years old at the time of his accident, sustained disc herniations requiring both cervical and lumbar spinal fusion surgeries.

Cervical fusion post-op image:

cervical fusion4

Here are the injury details:

  • Herniated discs at C4-5, C5-6 and C6-7 with radiculopathy
  • Surgery #1 on 3/31/09: two level cervical discectomy and fusion with six screws and a titanium plate inserted
  • Herniated discs at L4-5 and L5-S1 with radiculopathy
  • Surgery #2 on 8/18/09: two level lumbar fusion and laminectomy at L4-5 and L5-S1 with six screws and and a rod screw construct
  • Continuing and permanent spinal pain and radiculopathy requiring narcotic pain medication and leaving plaintiff with weakness of both arms and legs
  • Unable to work as a vehicle driver, unable to bend or carry
  • Unable to return at all to activities previously enjoyed such as dancing, running and soccer

Cervical radiculopathy – pain and other symptoms from the irritation of cervical spine nerves – can affect various parts of the neck, shoulders and upper extremities:

cervical radiculopathy

The jury determined, as set forth in its verdict sheet, that plaintiff failed to use an available seatbelt and that his recovery should therefore be reduced by $200,000. New York law that provides that non-use of an available seat belt, and expert testimony in regard thereto, is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. Plaintiff argued successfully on appeal that the $200,000 reduction was improper because there was insufficient (expert) proof that plaintiff’s use of a seatbelt would have mitigated his damages.

Inside Information:

  • In closing arguments, plaintiff’s counsel  asked the jurors to award his client $5,000,000 for pain and suffering. Defense counsel argued that plaintiff should be awarded nothing at all because he had pre-existing degenerative discs in his spine, the impact between the cars was minimal and could not have caused the injuries claimed and that any injuries at all were due to non-use of a seatbelt.
  • It appears that the jurors discounted plaintiff’s second surgery (lumbar fusion) and agreed with the testimony of defense expert orthopedic surgeon Robert Israel, M.D., who stated that there was no casual connection between the accident and that surgery and that plaintiff could return to work without restrictions. Spinal surgeon Sebastian Lattuga, M.D., testified for the plaintiff.
  • The trial was hard fought on both sides with veteran trial lawyers Nick Gjelaj for the plaintiff and Sim R. Shapiro for the defendants.

 

 

Trip and Fall Verdict for Non-Surgical Orthopedic Injuries Affirmed

Posted in Ankle Injuries, Wrist Injuries

On December 24, 2007, at about 5 p.m., Anabell Rivera was on her way to her twin sister’s home in Jersey City to celebrate Christmas and their 50th birthdays.

As Ms. Rivera was walking down a staircase at the Port Authority Bus Terminal in Manhattan, she tripped and fell sustaining injuries to her right wrist and left ankle.

In her ensuing lawsuit, Ms. Rivera claimed that a missing section of the steps caused her to fall.  On August 13, 2013, the Bronx County jury agreed, finding that the staircase was not reasonably safe and further that Ms. Rivera was not at all comparatively at fault.

The jurors then determined that plaintiff was entitled to a pain and suffering damages award in the sum of $413,000 ($206,500 past – six years, $206,500 future – 27 years).

In Rivera v. Port Authority of New York and New Jersey  (1st Dept. 2015), both the liability and damages verdicts have been affirmed.

The appellate court’s decision addressed the trial judge’s rulings and jury instructions regarding certain issues as to witnesses and evidence.  It also addressed the defendant’s contention that the damages awards were excessive stating that the defendant’s arguments are unavailing.

Here are the details as to plaintiff’s injuries:

  • Ambulance to the local hospital where she was treated and released from the emergency room with diagnoses of (1) a non-displaced fracture of the right radial head of her wrist and (2) no ankle fracture.
  • Unable to return to work for two weeks (plaintiff was an eligibility specialist at the city’s Human Resources Administration).
  • Right Wrist – comminuted fracture of the distal radius.
  • Left Anklesubchondral fracture of the medial malleolus, tear of the posterior talo-fibular ligament.

distal radius fractures

As of the trial date, plaintiff had not undergone any surgery related to her injuries; however, there was a dispute as to whether she’d need any surgery in the future.

Plaintiff’s orthopedic expert testified that (a) as to her wrist, recent x-rays indicate the presence of post-traumatic arthritis, plaintiff had loss of range of motion and diminished grip strength and she needs arthoplasty with neurolysis of the medial nerve and (b) as to her ankle, an MRI taken a year after the accident revealed the fracture and she needs arthroscopic surgery.

Carpal Tunnel Anatomy

To the contrary, defendant’s expert testified that based upon his examination of plaintiff in 2010 and his review of radiological studies (a) plaintiff’s wrist was clinically healed and surgery was not needed and (b) there was no ankle fracture caused by the accident in view of the negative x-ray and the absence of any joint swelling on the date of the accident, even if the MRI demonstrates a fracture it was indeterminate as to when it occurred and, in any event, he found no impairment or disability in his examination two years post-accident.

Inside Information:

  • Ms. Rivera had fractured her right radius in 1999 requiring surgery that left her with a permanent metal plate and discomfort.
  • The $37,000 awarded for future medical expenses was based upon testimony that plaintiff’s wrist surgery would cost $20,000 and her ankle surgery $17,000.

Hip Injury Award Affirmed on Appeal

Posted in Hip and Pelvis Injuries

On January 24, 2009, Garo Kahvejian, a 48 year old jewelry store owner, sustained an injury to his hip when he was driving through the intersection at South Airmont Road and Campbell Avenue in Airmont (Rockland County) and his car was struck by a driver making a left turn.

The Scene of the Accident:

After two days of trial in the ensuing lawsuit, the judge directed a verdict as to liability ruling that the defendant was fully at fault. The Rockland County jury then heard testimony as to plaintiff’s injuries and on October 14, 2011 awarded pain and suffering damages in the sum of $800,000 ($50,000 past – 2 3/4 years, $750,000 future – 20 years).

anatomy-hip

Anatomy of the Hip and Pelvis

The trial judge ordered a reduction of the future damages award to $375,000 and then the defendant appealed claiming that plaintiff’s claims should have been dismissed entirely because his injuries did not meet the serious injury threshold under Insurance Law Section 5102:

“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Alternatively, defendant argued that the reduced total of $425,000 was excessive.

In Kahvejian v. Pardo (2d Dept. 2015), the defendant’s arguments as to the threshold were deemed without merit and the $425,000 pain and suffering award was affirmed.

As set forth in the court’s decision, Mr. Kahjevian’s first medical treatment following his accident was two weeks later when, after persistent hip pain, he made an appointment with an orthopedic surgeon. He was ultimately diagnosed with an early stage of avascular necrosis when MRI film three months later showed a loss of blood supply to the hip.

hip_avn_intro01

According to his doctor, plaintiff’s condition results in portions of dead bone in the hip for which there are two types of surgery – one involves drilling a hole in the bone and irrigating it with blood (which the doctor testified is only 40% successful), the other is a total hip replacement (which the doctor recommended but plaintiff hadn’t yet undergone).

 

 

 

 

 

Here are the injury details:

  • used either a cane or crutches for seven weeks; at trial he walked with a limp
  • persistent and permanent hip pain
  • significant loss of range of motion
  • unable to return at all to activities he’d enjoyed daily for 30 years such as martial arts, cycling and running
  • unable to play with his teenage children
  • unable stand for more than 45 minutes or sit for long periods
  • forced to sleep on first floor couch four nights a week due to inability to climb stairs to second floor bedroom
  • post-traumatic hip arthritis

Inside Information:

  • Plaintiff testified that despite being in severe pain at the scene of the crash, he declined medical treatment because he was driving home from his jewelry store and had in his possession valuable diamonds and was concerned for their security.
  • There was no loss of earnings claim.
  • Plaintiff treated with his orthopedic surgeon only five times (four in 2009 and once in May 2011 shortly before trial).
  • Plaintiff’s pre-trial settlement demand was $100,000 with no offer from the defendant.

Substantial Award Affirmed in Knee Injury Case

Posted in Knee Injuries

On September 15, 2009, Adelina Reyes was injured when she tripped and fell due to a defective subway grating on the sidewalk at 138th Street near Willis Avenue in the Bronx.

Grating Near the Scene

Subway Grating Near the Scene

The transit authority conceded liability and a lawsuit by the 53 year old Ms. Reyes addressed only the issue of damages.

On September 27, 2013, after eight days of trial, a Bronx jury returned a verdict for plaintiff’s pain and suffering in the sum of $1,000,000 ($250,000 past – four years, $750,000 future – 29 years).

The defendant appealed on the sole issue of excessiveness of the future damages.

In Reyes v. New York City Transit Authority (1st Dept. 2015), the award has been affirmed.

As set forth in the court’s decision, plaintiff sustained a torn meniscus that required arthroscopic surgery.

menisect

Here are more injury details:

  • transported from the scene by ambulance to the local hospital where a 10 centimeter laceration was debrided and closed with 15 staples
  • physical therapy three times a week for two years
  • arthroscopic surgery on 2/17/12: partial medial menisectomy (removal of part of the meniscus) and patella chondroplasty (removal of cartilage)
  • development of post-traumatic arthritis with Grade IV chondromalacia of the head of the femur
  • continuing pain and inability to return to work as a street cart vendor
  • antalgic gait requiring use of cane
  • need for total knee replacement surgery in about eight years

femoral chondromalacia

Ms. Reyes also sustained three bulging lumbar discs but she did not testify as to any continuing back pain. The defendant argued that this aspect of her injury was merely a lumbar strain that had resolved.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury for $250,000 for past pain and suffering plus $400,000 for the future.
  • Plaintiff admitted that her Facebook page contained a photograph of her standing in high heels without a cane, taken about 15 months before trial at a party for her daughter.
  • The jury awarded nothing for future medical expenses despite testimony that the future knee replacement surgery would cost about $50,000. Defendant argued on appeal that this meant that the jury did not believe plaintiff would undergo the surgery and that, therefore, the future pain and suffering award was excessive.
  • Plaintiff made no claim for loss of earnings.

Future Pain and Suffering Damages Key Issue in Dental Malpractice Case Appeal

Posted in Medical Malpractice

On April 14, 2005 Adina Raso, then 14 years old, had two impacted wisdom teeth extracted by an oral surgeon in Stony Brook.

wisdomteeth1

A week or so later, Adina noticed that she was experiencing paresthesia (numbness) and had no sensation or taste on the left side of her tongue and the gums of her lower left jaw. Also, she was experiencing shooting, electric-shock type pain on a sporadic basis.

Within a few months, Adina was diagnosed with a traumatic injury to her left lingual nerve and she sued her treating surgeon claiming that her numbness and related injuries were caused when he negligently severed the nerve.

Intra Operative View of Lingual Nerve with Anesth to tongue

On March 18, 2014, a Suffolk County jury found that there had indeed been a departure from good and accepted standards of dental care during the extraction and they awarded Adina pain and suffering damages in the sum of $25,000 (all past – nine years).

Plaintiff promptly sought an increase in the amount of damages, arguing that $25,000 for nine years of past pain and suffering was an inadequate award and that the jury’s failure to award any future pain and suffering damages was irrational. The trial judge agreed, in part, and on August 4, 2014 he issued a decision awarding future pain and suffering damages in the sum of $120,000.

On defendant’s appeal, in Raso v. Jamdar (2d Dept. 2015),  the future pain and suffering damages award has been vacated. The jury’s total verdict of $25,000 has been reinstated.

The appellate court held that the jury’s failure to award any damages for future pain and suffering was properly based upon the evidence and the jury’s assessment of the credibility of the witnesses. Unfortunately, the decision omitted any references to the injuries or the issues underlying the credibility determinations. Here are the details:

  • New surgery on 11/14/05 – to repair the left lingual nerve (in which, under general anesthesia, a new surgeon was able to anastomose (reconnect) the nerve ends.
  • Plaintiff testified at trial that while her condition had much improved after the repair surgery, she continued to suffer from a mild altered taste sensation (could not “experience the full depth of flavor of food”) and mild paresthesia. She admitted that she no longer had any pain, was not taking any medication or undergoing any treatment for her injury, had no difficulty singing, her social life was unaffected and she regularly engaged in athletic activities.
  • A defense expert examined plaintiff in 2009 and testified that there was no objective evidence of any permanent damage.
  • Dental records in evidence indicated that in October 2008 plaintiff stated she had no “serious” or “difficult problems associated with any previous dental work.”

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $350,000 and her attorney asked the jury to award $650,000.
  • Plaintiff argued that future damages should have been awarded because the defense expert testified that he made diagnoses of mild paresthesia and mild alteration of taste; however, he further testified that his diagnoses were based on “what the patient reports to me” and defense counsel argued that the expert’s finding that there was no objective evidence of permanent damage was much more important than plaintiff’s “subjective and self-serving” responses to the expert’s questions.

 

 

Ankle Injury Verdict Upheld on Appeal

Posted in Ankle Injuries

On May 25, 2003 at about 7 p.m., Miguel Bonano, then 19 years old, was driving a motorized dirt bike on Bryant Avenue near 167th Street in the Bronx when he crashed into the back of a parked car and sustained ankle fractures that required emergency surgery.

A Yamaha YZ85 dirt bike, similar to the one in this case

Miguel testified that as he was proceeding at about 15 miles per hour, he noticed a stopped car in the middle of the road and he veered right in an attempt to pass it. Then, suddenly, the right front-seat passenger door of the car opened and a hand reached out to grab him. Miguel “got nervous,” accelerated, mounted the sidewalk to “get away from the guy grabbing” him and then hit a parked car.

It turns out that the stopped car was an unmarked police vehicle with anti-crime officers inside. One of the officers testified that he opened his door only when he saw Bonano on the sidewalk a couple of car lengths behind the police car, intending to tell him to get off the sidewalk.

Bonano sued the city claiming that the officer who opened the door into his path was negligent and caused him to lose control of his dirt bike resulting in the crash and his injuries.

On June 6, 2012,  at the end of the trial, the judge instructed the jury as to the applicable law, including Vehicle and Traffic Law Section 1214 regarding opening and closing of car doors.

The jury substantially agreed with plaintiff’s version of the facts when it returned a verdict finding the city 85% at fault (and plaintiff 15% comparatively negligent).

As to damages, the jury awarded plaintiff $1,640,000 for his pain and suffering ($500,000 past – 10 years, $1,140,000 future – 20 years). The verdict has now been affirmed in Bonano v. City of New York (1st Dept. 2015).

As set forth in the appellate court’s decision, plaintiff sustained comminuted fractures of his fibula, tibia and talus that required three surgeries and will likely require a fourth. Here are the injury details:

  • After the crash, Bonano lost consciousness and woke up moments later lying in the street in intense pain, bleeding and with his right leg  bones and fat protruding out from his skin.
  • Transported by ambulance to the hospital where he was admitted for 12 days.
  • Surgery #1 on 5/26/03: irrigation and debridement and placement of an external fixation device inserting screws into the tibia and a pin into the calcaneous.
  • external fixator
  • Surgery # 2 on 6/3/03 – to remove the external fixator and fix the fractures via open reduction and internal fixation (“ORIF”)  with a four hole plate with screws in the tibia, a six hole plate with screws in the fibula, screw fixation of the talus and a bone graft.
  • Surgery # 3 on 7/15/04 – to remove some of the inserted hardware.
  • Post-traumatic arthritis in the joint space between the tibia and the talus, as well as the loosening of a screw in the talus resulting in a malunion, all of which caused significant permanent and progressive pain, limitation of motion and an antalgic gait (a limp).
  • Unable to walk without pain or limping for more than three blocks or play sports (either alone or with his young children).
  • Fourth Surgery required – a triple arthrodesis to fuse the arthritic ankle joints (the defendant’s expert orthopedic surgeon testified that plaintiff’s fourth surgery might have to be a “more significant” ankle replacement procedure in which a prosthetic device is placed into the ankle).

Triple-Arthrodesis-Resized

Inside Information:

  • By the time of trial, plaintiff was 27 years old had moved to Pennsylvania and was attending a small college studying criminal justice.
  • The testimony of the three police officers involved was inconsistent as to who was seated where, how many were actually inside the police car and where plaintiff was when he was first seen by the officers. Plaintiff’s counsel attacked their credibility, apparently successfully.
  • Plaintiff’s pre-trial settlement demand was $450,000 against an offer of $325,000.
  • Defense counsel told the jurors that if they reached the damages issue, plaintiff’s “story” about his injuries did not make sense in part because he hadn’t sought any treatment for his injuries in the prior eight years, his limping was “selective” and he has the ability to drive, go to movies with his kids and throw a ball around with them.
  • Defense counsel stated in her closing that plaintiff’s counsel “might ask you for [as much as] $50,000.” In fact, plaintiff’s counsel asked the jurors for pain and suffering damages in the sum of $4,000,000.

 

 

Knee Injury Damages Verdict Substantially Increased on Appeal

Posted in Knee Injuries

On October 6, 2009, Marcia Saft was walking home after dinner with her husband at a local restaurant in Manhattan. She tripped and fell on the sidewalk in front of 229 East 81st Street where Con Edison had placed temporary electric cable encased in a shunt board running from the street to the building.

An illustration from the utility company’s web site depicting a yellow shunt board (the shunt in this case was black with an orange stripe):

Ms. Saft’s foot got caught in the edge of the shunt and she fell forward to the ground onto her knee sustaining an injury requiring immediate ambulance transport to the hospital and surgery the next day.

In the ensuing lawsuit, plaintiff claimed that Con Ed was negligent because the presence of the shunt without any warnings made the sidewalk unreasonably dangerous at night. The defendant contended that the shunt was open and obvious, there was ambient light, no need for cones or a barricade and that Ms. Saft was not paying attention.

On May 16, 2013, the Manhattan jury determined that each party was 50% liable for the accident.

The jury then awarded the 64 year old plaintiff pre-apportionment pain and suffering damages in the sum of $50,000 ($34,000 past – 3 1/2 years, $16,000 future – 15 years). Plaintiff appealed contending that the damages award was inadequate.

In Saft v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2015), the pre-apportionment damages award has been increased to $520,000 ($370,000 past, $150,000 future).

The court’s opinion omits any mention at all as to the injuries sustained. Here are the details:

  • comminuted patella fracture with tears of the retinaculum
  • open reduction internal fixation surgery –  with excision of shattered distal portion of the patella and tendon reattachment through holes drilled in the patella
  • three day hospital admission
  • casted for six weeks, about one month in a wheelchair and another month or so using a walker
  • permanent pain and inability to resume nightly two mile walks with her husband (an activity they enjoyed almost every day for decades before)

Inside Information:

  • The only medical witness to testify was an orthopedic surgeon retained by plaintiff. He reviewed her medical records but was not asked to examine her.
  • The first question defense counsel asked plaintiff’s expert on cross-examination was: “Nasty injury?” After the affirmative answer, plaintiff’s counsel repeated the word “nasty” several times in his closing argument when referring to Ms. Saft’s injury.
  • Defense counsel suggested on appeal that the pre-apportionment damages should be increased to $100,000.
  • Plaintiff’s counsel asked the jury to award the exact figures adopted by the appellate court ($370,000 for past pain and suffering plus $150,000 for the future).

Wrist and Spinal Injuries from Trip and Fall Accident Result in Large Pain and Suffering Damages Award

Posted in Back Injuries, Wrist Injuries

On October 30, 2009, at about 8 a.m., Anyolina Mata was crossing the Grand Concourse near her apartment in the Bronx when her foot became caught on a one inch high lip that surrounded a subway ventilation grate embedded in a concrete median. Ms. Mata fell forward to the ground where she lay in intense pain until an ambulance arrived and paramedics transported her to the local hospital.

A subway grate similar to the one in this case:

The metal grate had been installed, and was being maintained, by the New York City Transit Authority and in the ensuing lawsuit, a Bronx County jury determined that the authority was fully responsible for the accident. That same jury awarded Ms. Mata pain and suffering damages in the sum of $5,500,000 ($2,000,000 past – three years, $3,500,000 future – 50 years).

In Mata v. New York City Transit Authority (1st Dept. 2015), the appellate court has reduced the award to $3,000,000 ($1,000,000 – past, $2,000,000 – future).

The court’s decision mentions that plaintiff sustained a wrist injury that required arthroscopic surgery and a back injury that required a laminectomy with fusion surgery. Here are additional injury details:

  • Wrist: torn triangular fibrocartilage complex with associated synovitis; extensive physical therapy; cortisone and lidocaine injections; surgery 4/29/10 – synovectomy of the joint and debridement of the tear; guarded prognosis with chronic, permanent pain
  • Back: L5-S1 annular tear (a rip in the annulus fibrosis); extensive physical therapy; three epidural steroid injections; discogram; surgery 3/7/12 with implantation of metallic rods and screws; four days in hospital followed by a month confined to bed at home; walking only with cane as of trial; chronic, permanent pain syndrome; may need revision surgeries as back deteriorates in the future
  • Unable to walk her young children to school a few blocks from home or take them to parks, museums and the like as she had before the accident; unable to stand more than two hours per day, lift more than 15 pounds or twist her spine.

The defense claimed that the jury verdict was excessive because, despite her injuries and surgeries, plaintiff continued to successfully run a daycare center in her apartment for about a dozen children, got married in 2010, traveled to the Dominican Republic on a few occasions before her back surgery and could perform her usual daily activities, albeit “differently, altogether.” Furthermore, the defense noted that plaintiff’s wrist injury was not to her dominant side, did not extend to her hand and her surgery was minimally invasive. Under such circumstances, counsel suggested that reasonable compensation for Ms. Mata would be less than $3,000,000.

Plaintiff argued that the jury verdict did not materially deviate from what would be reasonable compensation because plaintiff was only 30 years old at trial, before the accident she was vibrant and asymptomatic, her back surgery was major and she has been left with permanent chronic pain and significant disabilities. Nonetheless, plaintiff’s counsel concluded that if the appellate court were to make a reduction it should be to an amount not less than $4,000,000.

Inside Information:

  • The jury also awarded plaintiff $200,000 for her medical expenses($100,000 past, $100,000 future), an amount which was not challenged on appeal.
  • Plaintiff was able to operate her daycare business by hiring additional people but she made no claim for lost earnings.
  • Plaintiff was a graduate of Rensselaer Polytechnic Institute with degrees in mechanical and aerospace engineering and worked in those fields for about three years before attending City College to obtain a master’s in education and starting her childcare business shortly before her accident.
  • In its post-trial motion seeking to set aside the entire verdict, the defendant claimed that plaintiff improperly concealed until she was cross-examined at trial the fact that she had a lifelong medical condition that causes dizziness, blurred vision and hallucinations. The judge issued a decision finding no merit to that argument.

 

 

 

Construction Site Accident Verdict Reinstated

Posted in Back Injuries, Internal Injuries

On September 23, 2005, Rafael Lopez was employed as a journeyman laborer for the general contractor at a construction project in Brooklyn  owned by the City of New York. He was involved in the placement of rebar on the roof of a building under construction.

The site of this accident: the Newtown Creek water treatment plant.

While helping a co-worker try to dislodge a piece of stuck rebar, Lopez, then 35 years old, fell backwards and was seriously and extensively injured when he landed on and was impaled by the sharp end of another piece of rebar that was protruding vertically and sharply from the roof’s surface.

Rebar with caps, unlike the one that impaled Mr. Lopez.

Lopez sued the city claiming that his injuries were caused by its failure to keep the site free from sharp projections as required under Labor Law Section 241(6) and a regulation promulgated thereunder, 12 NYCRR 23-1.7[e][2]. On October 28, 2010, plaintiff’s motion for summary judgment on liability was granted and the case proceeded to a trial on damages only.

At trial, the Kings County jury awarded plaintiff pain and suffering damages in the sum of $5,000,000 ($2,000,000 past – five years, $3,000,000 future – 35 years). The trial judge ordered a reduction of the future damages award to $1,500,000.

In Lopez v. New York City Department of Environmental Protection (2d Dept. 2014), the liability determination has been affirmed and the $5,000,000 pain and suffering verdict has been reinstated.

The court’s decision mentions very little about the massive injuries sustained by the plaintiff:

  • The eight inch piece of rebar impaled Lopez through his rectum and up to his abdomen and intestines before it became dislodged at the scene where he lay in excruciating pain and profusely bleeding.
  • Emergency surgery to repair the rectal laceration and have a colostomy bag placed; initial hospitalization  about two weeks.
  • Additional surgery six weeks later to reverse the colostomy and reconnect the bowel tract following which an infection developed resulting in almost four more weeks in the hospital with high fevers and increased pain.
  • More surgery due to abcess formation and adhesions.
  • Herniated disc at L5-S1  requiring spinal fusion surgery in October 2010 after a year of physical therapy failed to alleviate pain
  • Continuing fecal incontinence and sexual dysfunction
  • Continuing back and abdominal pain with inability to lift anything over five pounds, bend to pick anything up, climb, work on a scaffold or sit for long periods.
  • Depression (with extensive psychiatric treatment)

Inside Information:

  • Lopez returned to work about six months after the accident, although only on light duty (as a safety engineer) and with accommodations for his continuing need for health care visits. In September 2011, he advised his employer that he’d be out of work for a week due to terrible back pain. He never returned.
  • During trial, defendant offered $3,000,000 to settle but the offer was withdrawn after closing arguments.
  • In March 2010, with permission from his doctors, Lopez bought a motorcycle which he rode to work about once a week, sometimes at high speeds. He rode after his back surgery in October 2010 but stopped about three months before trial stating that his back “started to flare out” and he was having a lot of pain.