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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Verdict Affirmed for Passenger in Car Crash who Sustained Neck Injury

Posted in Neck Injuries

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

whiplash

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

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

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

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

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

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

Cigarette_smoking_400

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

Inside Information:

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

Shoulder Injury Award Affected by Claimant’s Credibility

Posted in Shoulder Injuries

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

t bone

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

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

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

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

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

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

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

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

shoulder

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

false testimony

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

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

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

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

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

The arbitrator concluded:

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

Inside Information:

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

 

Verdict Affirmed for Woman Who Fell inside Moving Subway Car

Posted in Hip and Pelvis Injuries

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

Pelham

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

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

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

anatomy of hip

Here are the injury details:

  • comminuted left intertrochanteric hip fracture with subtrochanteric extension

intertrochanteric-fracture-4-638

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

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

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

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

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

Inside Information:

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

Construction Site Injury Awards Sharply Reduced

Posted in Back Injuries

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

Trench

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

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

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

Here are the injury details:

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

lumbar fusion3

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

spinal cord implant surgery

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

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

Inside Information:

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

 

Modest Pain and Suffering Award Affirmed in Car Crash Case

Posted in Back Injuries

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

Route 55 in Lagrangeville

Route 55 in Lagrangeville

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

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

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

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

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

spine modelT12 fusion

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

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

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

Neurosurgeons for both parties testified by way of videotape.

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

Inside Information:

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

Medical Malpractice Pain and Suffering Verdict Reduced on Appeal

Posted in Medical Malpractice

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

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

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

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

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

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

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

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

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

thymus

Inside Information:

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

Huge Pain and Suffering Award Slashed in Infant Brain Damage Case

Posted in Brain Injuries, Medical Malpractice

Shannon Reilly was born on November 1, 2002 at St. Charles Hospital in Port Jefferson. Doctors quickly noticed Shannon was suffering seizures and she was later determined to be suffering from cerebral palsy.

St Charles Hosp.

In the ensuing lawsuit against the hospital and the obstetrician, Shannon’s parents claimed that her delivery was improperly managed allowing a hypoxic event to occur causing brain damage and cerebral palsy.

The case was tried three times in Suffolk County.

  1. In 2009, the jury rendered a defense verdict. On appeal, the dismissal as to the physician was affirmed but the case was reinstated as to the hospital.
  2. In a 2012 retrial, the jury was hung so the case went to trial again.
  3. In a 2013 retrial, the jury reached a plaintiff’s verdict and awarded $130,000,000 in damages:
  • $92,500,000 for pain and suffering ($10,000,000 past – 10 years, $82,500,000 future – 55 years)
  • $5,500,000 loss of earnings capacity (29 years)
  • $32,000,000 (approx.) for future medical expenses (including $15,600,000 for a living center at age 44, $5,800,000 for home health aides, $5,600,000 for physical, occupational and speech therapies and $2,300,000 for medications)

On a post-trial motion, the judge reduced the awards for future medical expenses by about $3,000,000 and loss of earnings by $1,000,000. He also reduced the pain and suffering award by $85,600,000 to $6,900,000 (past to $400,000 and future to $6,500,000).

On appeal, the hotly contested liability finding has been affirmed in Reilly v. St. Charles Hospital (2d Dept. 2016), the awards for economic damages have been modified (resulting in an allowance of about the same $32,000,000 the jury awarded), the loss of earnings award has been reinstated and the pain and suffering award has been further modified downward and now stands at $4,250,000 ($750,000 past, $3,500,000 future).

In the latest decision, the appellate court referred to four previous appellate court decisions but with no explanation as to their significance. All were medical malpractice cases in which newborns sustained brain damage. The pain and suffering awards for the four plaintiffs were reduced from between $5,000,000 and $20,000,000 to between $2,250,000 and $4,250,000.

The citation to these cases, though unexplained, is important. It appears to relate to the differing positions of the parties in Reilly as to the application of the CPLR 5501 “deviates from what would be reasonable compensation” standard for the review of verdict amounts claimed to be excessive or inadequate.

Generally, to determine whether an award deviates materially from what would be reasonable compensation, the courts look to awards approved in similar cases, especially recent awards sustained by the appellate courts. To be “comparable,” the cases cited must involve injuries that are sufficiently similar to the nature, extent, circumstances and duration of the injuries sustained by the injured plaintiff.

Defendant argued on appeal in Reilly that CPLR 5501(c) requires the court to compare the pain and suffering awards in that case to approved such awards only in other medical malpractice infant brain damage cases, not to cases, as urged by plaintiff, that involve other catastrophic injuries with non-medical malpractice defendants. Applying that narrow construction, defendant argued, meant that the appellate court should compare the pain and suffering awards in Reilly only to other brain damage infant medical malpractice cases and that therefore the $4,250,000 sustained in 2007 for an infant diagnosed with cerebral palsy in Flaherty v. Fromberg should set the maximum limit for pain and suffering in Reilly as that was the highest sustained pain and suffering award in a brain damage infant medical malpractice case at the time Reilly was briefed.

Plaintiff argued that the pain and suffering award in Reilly as reduced by the trial judge from $92,500,000 to $6,900,000 should be increased to an amount commensurate with sustained awards for other persons (not limited to infants in newborn medical malpractice cases) who sustained catastrophic injuries (not limited to brain damage) such as the $16,000,000 sustained for pain and suffering in Peat v. Fordham Hill Owners Corp., discussed by us here, for a 37 year old man applying sealer to a floor in an unfinished apartment whose body was engulfed in flames when vapors from the sealing lacquer ignited and caused severe burns over much of his body.

Curiously, the decision in Reilly does not even mention the same court’s decision in Sence v. Atoynatan, issued seven weeks earlier, in which $9,015,000 was allowed for pain and suffering damages in a medical malpractice newborn brain damage case. We discussed the decision in Sence here.

Shannon Reilly suffers from hypoxic-ischemic encephalopathy, and will for the rest of her life. Here are some of the injury details:

  • cannot walk independently
  • is unable to control her tongue and mouth
  • has facial hypotonia, causing a drooling effect
  • will never be able to speak
  • will always be dependent upon others for all aspects of daily living
  • is incontinent
  • will require residence in a skilled nursing facility when her mother is gone
  • is well aware of everything going on and has emotional overlay that will continue to get worse
  • sleeps in a special needs bed
  • attends special needs school in a wheelchair

Inside Information:

  • The law firms in Reilly were Kramer Diloff, Livingston & Moore for plaintiff and Mauro Lilling Naparty LLP for the defendant. These are both very experienced, well-known and highly respected firms.
  • In 2009, before the defense verdict was rendered in the first trial, plaintiff’s settlement demand was $35,000,000 against an offer of $8,000,000. In 2013, before the $130,000,000 verdict, plaintiff’s settlement demand was $16,000,000 against which there was no offer from the defendant.
  • In the 2013 trial, the jury initially returned a verdict of $10,000,000 for past pain and suffering and $1,500,000 for future pain and suffering over 55 years. Plaintiff’s counsel then sought a sidebar arguing that it appeared the jury only awarded annual amounts rather than total dollar amounts. The judge then reinstructed the jury as to how they were to return their verdict on future damages awards and then they returned a revised verdict on the future damages awards, awarding $82,500,000 for future pain and suffering over 55 years.
  • Under Public Health Law Article 29-D, the New York Medical Indemnity Fund (the MIF) was established in 2011 to provide funds for future health care costs associated with birth-related neurological injuries caused by medical malpractice in order to reduce premiums for medical malpractice insurance coverage. Where, as here, plaintiff qualifies for the MIF, future medical expenses are paid out of the MIF rather than by the defendant. This reduced the defendant’s payout in this case by about $15,000,000.

 

Jury’s Pain and Suffering Award in Scar Case Substantially Reduced

Posted in Scars

On November 6, 2002 Miguel Erosa rushed to his local hospital in Queens complaining of unbearable pain in his stomach. It turns out he was suffering from appendicitis and he was admitted to the hospital where an emergency laparoscopic appendectomy was performed the next morning.

appendicitis2

Mr. Erosa was discharged from the hospital three days later, received routine follow-up medical care twice and returned to work as a mailman three weeks after his surgery. Unfortunately, Mr. Erosa’s abdominal pain remained present and even got worse, so bad that on February 9, 2003 he underwent a second abdominal surgery.

It turns out that the first surgery had been negligently performed in that the surgeon failed to completely remove the appendix causing an infection (stump appendicitis) and the need for the additional surgery. In his medical malpractice lawsuit against the surgeon, Mr. Erosa was awarded pain and suffering damages in the sum of $1,200,000 ($950,000 past – 10 1/2 years, $250,000 future – 26 years).

The trial judge agreed with the defense that the award was excessive and ordered a reduction to $275,000 ($250,000 past – $25,000 future), an amount affirmed on appeal in Erosa v. Coomaraswamy (1st Dept. 2015).

As set forth in the appellate court decision, defendant’s negligence left plaintiff with a large abdominal scar. Here is a trial exhibit from the case illustrating the scar:

Scar Photo (3)

The plaintiff, then 41 years old, exhibited his scar to the jury and in summation his attorney characterized it as “horrific” but the trial judge, in his post-trial decision, stated that the scar, “while far from pleasant looking or desirable, falls significantly short of … horrific.” The appellate judges apparently agreed.

In addition to the scar, plaintiff’s injuries included:

  • the need to undergo a second, more complicated, surgery (an open abdominal exploratory surgery) that would not have been needed but for the malpractice,
  • a six day hospital admission for abdominal pain between the dates of the two surgeries and a 10 day admission for the second surgery,
  • unable to return to work (as a letter carrier for the U.S. Postal Service) for almost three months,
  • development of incisional hernia and painful internal scars following the second surgery, and
  • several months of post-operative wound care.

Plaintiff testified that he was embarrassed by how he looked, refrained from going to the beach anymore, had been an avid athlete and could not return to playing handball and had digestive difficulties. The defense, though, noted that in the 10 years after the second surgery up to the date of trial, plaintiff had not gone to see any physician regarding his complaints.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $1,550,000.
  • Plaintiff’s wife was awarded loss of services damages (also referred to as loss of consortium) in the sum of $125,000 ($100,000 past – 10 1/2 years, $25,000 future – 26 years) but that sum has been reduced to $50,000 ($30,000 past – $20,000 future). Plaintiff’s testimony in this regard was scant (e.g., intimate relations with his wife had “gone low”) and conclusory and the trial judge stated that “[n]either plaintiff’s testimony nor his wife’s was particularly convincing as to the supposed deleterious effect on their lives together.”
  • Before trial, plaintiff’s counsel made it clear to the judge that he would accept less than $150,000 to settle but defendants’ maximum settlement offer was $30,000.

Appellate Court Issues Decisions in Three Mesothelioma Cases

Posted in Mesothelioma

Just two months ago, here, we reviewed recent appellate court decisions dealing with pain and suffering damages in mesothelioma cases. The same appellate court has issued  decisions in three more cases involving similar issues and damages. In all of the cases, hard-working men suffered horribly difficult final years before succumbing to a premature death due to the ravages of mesothelioma. In each case, the jury’s award for pain and suffering was drastically slashed by the courts.

 

Selwyn Hackshaw  was a retiree in his early 70’s in late 2012 when he learned he was suffering from mesothelioma. For many years he’d been an electrician and a pipe fitter, working at plants installing and repairing gaskets and valves  manufactured by Crane Company containing asbestos.

Hackshaw sued Crane claiming that his mesothelioma was caused by his inhalation of asbestos in gaskets, insulation and valves that he’d handled over the years. During the tendency of his lawsuit but before trial, Mr. Hackshaw died from the disease on August 3, 2013.

On June 16, 2014 a Manhattan jury returned a verdict finding that Crane had failed to provide adequate warnings about the hazards of exposure to asbestos regarding its products and that its negligence caused Mr. Hackshaw’s mesothelioma. The jury then awarded pain and suffering damages in the sum of $10,000,000 (past – 12 months).

On January 7, 2015 the trial judge reduced the damages to $6,000,000 and in Hackshaw v. ABB, Inc. (1st Dept. 2016), the appellate court further reduced the damages to $3,000,000.

 

Ivan Sweberg was also a retiree when he learned in mid-2012, at the age of 70, that he too was suffering from mesothelioma. Mr. Sweberg had been an electrician involved in the construction of buildings from 1956-1972 when he worked with others who were installing and removing asbestos manufactured by Crane.

In Mr. Sweberg’s lawsuit against Crane (consolidated for trial with Mr. Hackshaw’s lawsuit), the jury found Crane liable and awarded pain and suffering damages in the sum of $15,000,000 ($5,000,000 past – two years, $10,000,000 future – 1.5 years).

The trial judge reduced the damages to $10,000,000 ($5,000,000 past, $5,000,000 future) and in Sweberg v. ABB, Inc.  (1st Dept. 2016), the appellate court further reduced the damages to $9,500,000 ($5,000,000 past, $4,500,000 future).

 

Ivo Peraica was 63 years old in August 2011 when he learned that he was suffering from mesothelioma. For many years, Mr. Sweberg serviced boilers manufactured by Crane that contained asbestos and his inhalation of fibers of asbestos caused mesothelioma.

Mr. Peraica sued Crane but died from mesothelioma before trial, on December 28, 2012, at the age of 64. On March 1, 2013, a Manhattan jury found Crane liable and awarded pain and suffering damages in the sum of $35,000,000 (past – 17 months).

The trial judge reduced the damages to $18,000,000 and in Peraica v. A.O. Smith Water Products Co. (1st Dept. 2016), the appellate court further reduced the damages to $4,250,000.

 

Inside Information:

  • In each of the three cases, there were several defendants other than Crane and the jurors were instructed to apportion liability among them all (some defendants no longer existed, others had settled, etc.). Here are the verdict sheets in the Hackshaw and Sweberg cases.
  • The post-trial decision in Hackshaw and Sweberg is here and in Peraica, here.
  • The juries determined that Crane acted with reckless disregard for the safety of others, thereby negating the liability limitations of CPLR Section 1601 and restoring Crane’s joint and several liability. Pursuant to General Obligations Law (“GOL”) Section 15-108, though, plaintiffs’ verdicts in these cases, as reduced by the post-trial decisions (but before the additional appellate court reductions), were further reduced, in each case, by the greater of the aggregate pre-verdict settlements with other defendants or their aggregate percentages of fault.  In Hackshaw, therefore, plaintiff’s judgment (before interest) was $2,909,646 and in Sweberg it was for $4,997,200.
  • The appellate court decision in Peraica  is erroneous as to damages in that it refers to the jury award as $9,900,800 when in fact it was $35,000,000 (thereafter reduced by the trial judge, as mentioned above, to $18,000,000). The judgment against Crane amounted to $9,900,800 (before interest) but that was based first upon the $18,000,000 award from the trial judge and then the reduction of that sum pursuant to the GOL.
  • Along with plaintiff’s notice to the appellate court regarding its significant calculation error in Peraica, we expect that plaintiff in Sweberg will accept the relatively small reduction and propose an amended judgment. In both Hackshaw and Peraica, though, we expect plaintiffs will mount a constitutional challenge to the continuing practice of New York’s intermediate appellate courts of reducing jury awards for pain and suffering in mesothelioma cases by millions of dollars, even tens of millions.
  • Ivan Sweberg died from his mesothelioma in July 2014.

Appeals Court Upholds Verdict in Unwitnessed Fatal Pedestrian Knockdown Accident

Posted in Wrongful Death

On October 29, 2006, a woman was found dead on the road four feet from the curb of a bus stop on the Henry Hudson Parkway service road at West 236th Street in the Bronx. There were tire marks across her back and she’d sustained crush induced fractures of her arms, face, pelvis, shoulder and skull indicating that she was rolled over by a vehicle over her pelvis and then her head.

Several hours later police investigators discovered blood and tissue underneath a bus that had stopped at the site at about the time of the incident. It was determined that the bus had struck the decedent, 51 year old Bronx resident and part-time home health aide Rachel Levy (although the bus driver was unaware he’d struck anyone and there were no eyewitnesses).

In the ensuing lawsuit by Ms. Levy’s survivors against the transit authority and its bus driver, a verdict was rendered finding the driver fully at fault and awarding $950,000 in damages as follows:

  1. $300,000 to the decedent’s estate for pre-death conscious pain and suffering,
  2. $100,000 to the decedent’s daughter, Miriam Oates, for her loss of nurture, care and guidance (future – five years) and
  3. $550,000 to the decedent’s mother, Hadassah Levy, for her loss of custodial services ($150,000 past – 6 1/2 years, $400,000 future – 10 years).

In Oates v. New York City Transit Authority (1st Dept. 2016), both the liability and damages awards were affirmed.

Here are the injury and damages details:

  • Pain and Suffering:  Plaintiff’s expert forensic pathologist opined that Ms. Levy died due to multiple blunt force crush injuries of her head, chest, pelvis and upper extremities and that she suffered two to five seconds of conscious pain and suffering from the time she was struck by the bus to the time she lost consciousness and succumbed to her injuries. He broke the time period down to the pre-impact phase (the few seconds before impact when Ms. Levy recognized she would be hit, the impact phase (when the bus hit her, propelled her, knocked her down and began to run over her) and the post-impact phase (once the bus finished rolling over Ms. Levy when her entire body experienced total shock before no longer responding to her environment). The defendants’ expert opined that Ms. Levy died instantly, without pain or suffering and that it was impossible to say if or how long Ms. Levy was conscious at the time of or after impact.
  • Loss of Nurture, Care and Guidance: Ms. Oates, 40 years old at trial, left her mother’s home after college when she married and moved to North Carolina. Se continued to rely upon her mother for nurture, care, guidance and advice (especially regarding her own young daughter) via frequent phone calls and visits to New York several times a year.
  • Loss of Custodial Services: Hadassah Levy, 77 years old at trial, lived with her daughter (the decedent), was disabled, suffered from several health conditions (e.g., severe rheumatoid arthritis, back issues, eye disease and sleep apnea) and she required daily household and medical assistance. The decedent provided her mother with daily custodial services including grocery shopping, cleaning, laundry, cooking, driving and keeping track of medications.

Inside Information:

  • The five judge appellate panel split 3-2 in favor of affirming the verdict and the defendants have exercised their right (by virtue of the split decision) to seek review from the state’s highest court, the Court of Appeals. We will report on any significant further developments as they occur.
  • Decedent’s family refused an autopsy on religious grounds.
  • New York’s wrongful death laws allow for an award of pecuniary damages (e.g., loss of custodial services) to a decedent’s distributees. Estates, Powers and Trusts Law Section 4-1.1 provides that where a person is survived by a child and a parent, the child is the sole distributee. Therefore, decedent’s daughter was her only distributee but defense counsel never objected to the prosecution of the claim for decedent’s mother until after the trial so the appellate court deemed the objection waived and allowed the award to stand.

UPDATE:

On November 17, 2016, the Court of Appeals affirmed the intermediate appellate court’s order discussed above. New York’s high court stated: ” … legally sufficient evidence supported the jury’s findings of negligence and entitlement to damages for decedent’s conscious pain and suffering.”