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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

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.

 

 

Court Affirms Both Pain and Suffering and Loss of Enjoyment of Life Awards

Posted in Ankle Injuries, Back Injuries

On March 10, 2008, Cassandra Grace was heading toward the turnstiles at the Third Avenue-149th Street subway station in the Bronx. After descending a flight of stairs, her foot was caught by a depression in cracked tiles on the floor causing her to trip and fall.

Ms. Grace, then a 46 year old dance instructor, was taken by ambulance to the local hospital where she was treated for complaints of ankle, back and knee pain. She was released that day but her pain persisted and she sued the transit authority claiming that it failed to maintain the station in a reasonably safe condition.

On August 3, 2012, the Bronx jury determined that the defendant was fully at fault and awarded pain and suffering damages in the sum of $170,000 ($20,000 past – 4 1/2 years, $150,000 future – 31 years). In addition, the jury awarded loss of enjoyment of life damages in the sum of $45,000 ($20,000 past, $25,000 future).

The defendant appealed, claiming that (a) the liability verdict should be vacated and (b) the damage awards were excessive, in particular the $45,000 for past and future loss of enjoyment of life.

Both the liability and damages verdicts have been affirmed in Grace v. New York City Transit Authority (1st Dept. 2014).

Defendant correctly argued that loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by a jury in assessing damages for pain and suffering. As the court noted in this case, though, the defendant lost its right to contest this error on appeal because it failed at trial to object to the proposed verdict sheet and thereafter failed again to object when the trial judge charged the jury.

Here are the details as to plaintiff’s injuries, none of which are mentioned in the court’s decision:

  • Ankle – completely torn anterior tibiofibular ligament requiring arthroscopic surgery on 10/17/08 in which the ligament ends were sewn together and several pieces of floating cartilage were removed; non-weight bearing for four weeks, CAM boot for another four weeks and air stirrups for eight months; permanent pain and range of motion deficits
  • Backherniated disc at L3-4 with permanent pain and range of motion deficits
  • Knee – torn cartilage with permanent pain and range of motion deficits
  • Unable to return to work as a dancer-instructor (though about a year before trial she was able to find another job in the dance field but only instructing, not dancing in any significant manner)

Ms. Grace underwent about 12 months of physical therapy, faces a lifetime of thrice annual epidural steroid injections in her spine and, although no further surgery is yet indicated,  her expert physiatrist testified that her prognosis is poor regarding all of her injuries.

The defendant contended that Ms. Grace did not need ankle surgery and in any event it had healed well, any pain in her back was from pre-existing degenerative disc disease and her knee injury was minor if anything at all.

Inside Information:

  • Before trial, plaintiff’s settlement demand was $375,000 against an offer of $75,000.
  • In closing arguments, plaintiff’s counsel asked the jury to award $950,000 for plaintiff’s non-economic damages. Defense counsel urged a finding of no liability but, alternatively, suggested no more than $70,000 for the past and nothing at all for the future.
  • Shortly before trial, it came to light that the defendant’s orthopedic surgery expert had treated the plaintiff twice after the accident – in May and June of 2008. Both the doctor and the plaintiff had been unaware of that fact when, in May 2009, plaintiff was examined by the doctor as defendant’s expert.
  • Plaintiff was also awarded damages for (a) past loss of earnings in the sum of $136,000 and (b)  medical expenses in the sum of $171,000 ($36,000 past, $135,000 future). The parties agreed to reduce the loss of earnings award by $71,000 due to disability payments plaintiff received before trial.

 

Jury Award Slashed in Case Involving Autistic Boy Injured at School

Posted in Facial Injuries

On March 25, 2002, Arrin Collins was injured when he fell in class at P.S. 168 in the Bronx. No one saw exactly what happened but one of his teachers noticed blood on eleven year old Arrin’s shirt. He’d sustained some severe injuries in and about his mouth and was taken to the school nurse and then by ambulance to the local hospital.

Arrin had been diagnosed as autistic, was essentially non-verbal and was never able to provide an account of how he was injured.

From most accounts, it appears that there was a large multicolored parachute hanging from the ceiling as a decoration and Arrin pulled it down on himself, his feet got tangled up in the parachute and he tripped and fell striking his mouth on a nearby window ledge.

The parachute from Arrin’s class was not produced at trial.

Arrin’s father sued on behalf of his son claiming that Arrin’s injuries were the result of the school’s having failed in its duty to provide adequate supervision. The defendants (the city, its board of education and two teachers) claimed that they provided the proper amount of teachers and paraprofessionals in Arrin’s classroom and, in any event, the accident was instantaneous and therefore not the result of their negligence.

On December 4, 2010, the Bronx jury rendered a verdict finding that defendants negligently supervised Arrin’s classroom and awarded pain and suffering damages in the sum of $4,600,000 ($1,300,000 past – 8 2/3 years, $3,300,000 future – 66 1/2 years).

In a post-trial motion, the defendants argued that the injuries suffered by the plaintiff do not justify the jury’s award, especially in view of the fact that plaintiff’s counsel in summation asked the jury for only $650,000. The trial judge ordered a reduction of the pain and suffering damages award to $250,000 (without specifying the breakdown between past and future).

Both sides appealed – plaintiff arguing that the trial judge’s reduction was unjustified and that the jury’s award was a fair assessment of the injuries, especially considering that Arrin’s disability left him with a  diminished ability to cope. The defendants argued that the entire case should have been dismissed as the school provided reasonable supervision.

In Arrin C. v. New York City Dept. of Education  (1st Dept 2014), the court affirmed both the liability finding against the defendants and the reduction of the pain and suffering damages award to $250,000.

Here are the injury details:

  • fractured jaw
  • loss of two upper left teeth – one was knocked out in the fall, the other was knocked up into Arrin’s upper jaw bone
  • oral surgery to extract the impacted tooth and insert with wires an arch bar to maintain the space and stabilize other teeth
  • alveolar atrophy – shrunken tissue in the area of the missing teeth
  • future surgery needed – two implants with bone and soft tissue connective grafting and implant restoration with crowns
  • implant revision surgery required after Arrin stops growing and again each 20 years thereafter
  • eight fittings for dentures, each requiring three office visits, up to the time of trial
  • one hour per day maintenance of dentures including extensive cleaning, adhesive placement and securing the dentures in Arrin’s mouth as well as a similar removal process at the end of each day

 Inside Information:

  • Under federal law, 20 USC Section 1414, an individualized education program (“IEP”) is required to define the individualized objectives of disabled schoolchildren. Arrin had frequent tantrums, was easily distracted and was severely impaired in expressive language. His IEP provided for (and the school provided) a staffing ratio of one teacher and one paraprofessional for each six children in his class.
  • The teacher and paraprofessional defendants did not appear at trial and in the judge’s charge the jurors were told they may, therefore, conclude that such testimony would not have supported the defense positions and accordingly draw the strongest negative inferences. Defense counsel  explained their absence stating that they were no longer employed by the city with one in Florida and the other’s location unknown. The jury apparently drew an unfavorable inference from their absence.
  • The jury also awarded $100,000 for future medical expenses, an amount that the trial judge and the appellate court determined should be reduced to $50,000.

 

Pain and Suffering Awards Affirmed in Spinal Injury Case

Posted in Back Injuries

On April 14, 2007, Antonia Corapi went to a party at an indoor sports facility called Sports Underdome in Mount Vernon.

Mrs. Corapi walked down a buffet line taking food from a table placed on an elevated platform, took a couple of steps back from the table and fell backwards off the platform to the artificial turf ground about nine inches below.

A day later, the 72 year old Mrs. Corapi went to see a doctor about back pain and shortly thereafter she sued claiming that the placement of the buffet table so close to the edge of the platform was unsafe and a substantial cause of her fall and injuries. A Westchester County jury agreed but determined that both parties were at fault and rendered a liability verdict apportioning liability 50% on each side.

A damages trial followed at which plaintiff claimed the accident caused serious spinal injuries. On November 28, 2011, the jury awarded pain and suffering damages in the sum of $195,000 ($50,000 past – 4.5 years, $145,000 future – 11.5 years) in addition to $200,000 for past medical expenses and $50,000 for future loss of services and consortium damages sustained by plaintiff’s husband, Peter Corapi.

Both sides asked the trial judge for relief – plaintiff claiming that the pain and suffering and loss of services awards were inadequate, defendant claiming that the medical expense award was in excess of the documented medical bills in evidence. The trial judge issued a decision reducing the medical expense award to $59,992 as requested but declining to disturb the pain and suffering or loss of services awards.

On appeal in Bock v. City of Mount Vernon (2d Dept. 2014), the trial judge’s decision has been affirmed and the pain and suffering awards stand at $195,000, along with the loss of services award at $50,000 and the medical expense award at $59,992 (with plaintiffs to receive only one-half of the total due to the 50-50 liability apportionment).

The appellate court decision simply states that the verdict as to pain and suffering damages “was not inadequate” and leaves the reader with no information at all as to the nature of Mrs. Corapi’s injuries. Here are the injury details:

  • Compression fracture of L-1 vertebral body
  • Surgery #1 on 5/9/07 – L-1 kyphoplasty, under intravenous sedation, reduction of the fracture with 11 gauge needle expansion of the compressed vertebral body and insertion of cement); eight day hospitalization
  • Surgery #2 on 8/17/07 – under general anesthesia, T-11 to L-2 lumbar decompression with L-1  corpectomy, T-11 to L-3 posterior spinal fusion with segmental instrumentation; requiring 25 day hospitalization
  • 19 mm scar
  • multiple episodes of physical therapy for several months
  • wheelchair bound with intractable and permanent back pain

Kyphoplasty Procedure

Mrs. Corapi claimed that her back injury was devastating; however, the defense focused on the fact that she had very significant recent and long-standing prior complaints of back pain and treatment that were either downplayed or forgotten by plaintiff at trial:

  • The x-ray taken of her back one day after the accident revealed osteopenia with degenerative joint disease  “and old compression @ L1.” [Other records indicated that the L-1 fracture was acute or new.]
  • Medical records from three weeks before the accident revealed that Mrs. Corapi fell the day prior and complained of mid back pain and being unable to stand or walk for any length of time.
  • Radiology reports on 5/27/05 revealed a history of back and leg pain and on 6/27/05 and 4/10/06 revealed degenerative disc disease in the lower lumbosacral spine.
  • History of prior back pain since at least 2001 for which plaintiff consulted physicians who (a) ordered bone density tests revealing progressive osteoporosis since 1999 and MRI’s from 2005 showing  spondylosis (narrowing of the spine),  (b) gave her steroid injections and (c) prescribed physical therapy.
  • Handicapped parking permit issued in November 2006 due to very active rheumatoid arthritis.

Plaintiff contended that before the accident, although clinically depressed for 30 years, she led a functional, ambulatory and independent life including babysitting her grandchildren, cooking, cleaning and socializing outside the home. She said she’d never before had back pain anything like what she suffered from after the accident, had never undergone any surgery at all for her back and that since the accident she couldn’t do any of her usual activities and required her husband’s daily assistance for tasks as simple as bathing and dressing.

In addition to the usual directives as to a plaintiff being entitled to an award for for pain and suffering damages caused by a defendant’s negligence, the trial judge’s charge to the jury included a directive that if they found that plaintiff’s pre-existing medical conditions were aggravated so as to cause increased suffering and disability, then she would be entitled to recover damages for any increased disability or pain resulting from such aggravation.

It appears that the jury adopted all or most of the defense contentions that:

  1. Mrs. Corapi had significant pre-existing, degenerative, disabling and debilitating back pain,
  2. the fall simply aggravated or exacerbated her prior back pain and condition, and
  3. plaintiffs’ testimony denying or minimizing Mrs. Corapi’s pre-existing conditions significantly (and adversely) impacted their credibility

Inside Information:

  • Mrs. Corapi started two lawsuits regarding this accident and they were consolidated and tried in Westchester County. The first was brought in Suffolk County based upon plaintiffs’ residence there; the second was brought in Westchester because pre-trial evidence in the first lawsuit disclosed that the City of Mount Vernon was the owner of the land upon which the sports facility is located and CPLR 504(2) mandates that when a city is sued venue must be in the county in which it is situated. Ultimately, the city was dismissed as a defendant and the case proceeded to trial against Sports Underdome alone.
  • Mrs. Corapi died from cardiopulmonary arrest on May 1, 2013 (while her appeal was pending). Her daughter Nina Bock was named executrix and the caption of the lawsuit was then amended to reflect these facts.
  • In closing arguments, plaintiffs’ attorney asked the jury to award $2,800,000 for pain and suffering damages; defense counsel gave no specific number, instead simply asking the jury to award an amount that would be “fair and reasonable.” In post-trial motion papers, plaintiffs’ counsel requested an order increasing the pain and suffering awards to $750,000.
  • The reduction of the past medical expense award appears to have come about because, although a subpoena was issued for the billing records (from Winthrop-University Hospital),  there was no compliance with the subpoena and as a result no admissible evidence of the charges for plaintiff’s second surgery and hospital stay.

 

 

Appellate Court Addresses Damages in Medical Malpractice Death Case

Posted in Medical Malpractice, Wrongful Death

Wilbur Rodriguez, a 44 year old postal worker, went to a hospital emergency room in Manhattan at 11:45 a.m. on Saturday, January 24, 2009. He complained of shortness of breath that started the day before, fever and chills. He was diagnosed with pneumonia and, after 12 hours in the ER, admitted and assigned a room.

Rodriguez was seen in his room every hour or so continuing to complain of shortness of breath and being treated with oxygen via nasal canula or mask. He was last seen by a nurse at about 4 a.m. who noted he had no signs of shortness of breath at that time.

A patient (not Rodriguez) receiving oxygen therapy:

Forty minutes later he was found unresponsive, could not be resuscitated and was pronounced dead an hour after that.

An autopsy report concluded that the cause of death was “bronchopneumonia complicating diabetes mellitus.”

His mother, Evelyn Rivera, a Bronx resident, was his sole survivor and she commenced a lawsuit against the hospital claiming that doctors should have more closely monitored her son by (a) transferring him from the ER to the intensive care unit and, later, (b) transferring him from his room (on a general medical floor) to an appropriate area in the hospital with continuous monitoring.

On April 18, 2012, the Bronx jury rendered a verdict finding that the hospital had indeed negligently caused the death of Mr. Rodriguez as alleged and they awarded economic damages for his mother’s loss of household services in the sum of $720,000 ($40,000 past – three years, $680,000 future – 17 years). The jury declined to award any sum at all for pre-death conscious pain and suffering.

Both parties asked the trial judge to set aside the verdict.

  • Plaintiff argued that there was no basis for the jury to conclude Rodriguez had not suffered in the five minutes or so before he died in view of (a) the many references in the hospital record that Rodriguez had difficulty breathing and was hypoxic, (b) the autopsy report concluding that pneumonia was the cause of death and (c) the testimony of his medical expert Mark Schiffer, M.D. , that the cause of death was respiratory failure due to bronchopneumonia which would necessarily cause suffering as Rodriguez fought, and lost, his battle to breathe.
  • Defendant argued that the future household services loss award was excessive.

The judge granted the defendant’s motion to the extent of ordering a reduction of the future household services award to $340,000 but she denied the plaintiff’s application to set aside the award of $0 for pain and suffering and/or for a new trial on that issue.

In Rivera v. Montefiore Medical Center (1st Dept. 2014), the judge’s post-trial decision has been affirmed. Plaintiff’s award now stands at $380,000 (all for her household services loss).

As indicated in the decision, it appears that the jury awarded nothing for pain and suffering because of testimony from defendant’s emergency medicine expert Mark Silberman, M.D.  that Rodriguez “most likely” died from a sudden, unexpected cardiac arrhythmia (an irregular heartbeat), died instantly and he did not suffer at all. The expert based his conclusion, in part, upon the fact that the autopsy report documented left ventricular hypertrophy (an enlargement of the left side of the heart – the pumping mechanism – which increases risks for cardiac problems).

Ms. Rivera testified that her son had never married, had no children, lived alone and that every day after work he would visit her apartment for two or three hours and help her with household chores (such as  cleaning and shopping). Calculation of her loss of household services claim was based upon the testimony of expert economist Alvin Mickens, Ph.D., who used statistical averages of 15.5 hours a week and an hourly rate of $13.66 to arrive at a 17 year total of $286,202. Therefore, both the trial judge and the appellate court determined that the jury’s award of $720,000 for household services was excessive. They did, though  allow $380,000 (still an amount that was more than the economist calculated) since “pecuniary damages need not match the expert’s assessment exactly.”

Ms. Rivera also testified that her son gave her at least $600 every month to help support her. She, therefore, claimed loss of support or inheritance damages in the sum of $600 per month from the date of her son’s death up through her own life expectancy of about 17 more years. That would have added at least $125,000 in damages; however, there was no documentary proof such as bank records or checks to evidence these payments so the trial judge ruled that plaintiff was precluded at trial from pursuing this claim.

Inside Information:

  • During trial, there was a $300,000 settlement offer and an indication that the defendant would offer more. Ms. Rivera rejected the offer and stated on the record (outside the presence of the jury) that no amount of money would resolve the case and she wanted the jury to render a verdict.
  • In his closing argument, plaintiff’s counsel suggested an award of $600,000 for pain and suffering plus $290,000 for loss of household services.
  • The loss of support or inheritance claim might be the subject of a new, separate appeal because it was not raised or discussed in the context of the post-trial motion and the appellate court stated it was “not properly before us on appeal.”