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New York Injury Cases Blog

Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice Awards

Substantial Reduction of Award for Future Pain and Suffering Damages in Knee Injury Case

Posted in Knee Injuries

On September 28, 2010, Susan Sermoneta was waiting for a subway train at West 181st Street in Manhattan when another passenger, David Cloud, slipped on a slimy substance on the subway platform that had oozed from a garbage can. Mr. Cloud fell onto Ms. Sermoneta who in turn fell to the ground injuring her knee.

garbage leak

Leaking from garbage bags or cans can create slippery, hazardous areas.

Ms. Sermoneta, then a 66 year old amateur street photographer, sued the transit authority claiming that it was negligent in that the slime was a recurring condition and the area was uncleaned on the day of the accident (the regular cleaning attendant failed to report to work that day). The Manhattan jury returned a verdict finding that the defendant was fully at fault for the incident and that Mr. Cloud bore no responsibility.

The jury awarded pain and suffering damages in the sum of $2,700,000 ($700,000 past – five years, $2,000,000 future – 15 years).

In Sermoneta v. New York City Transit Authority (1st Dept. 2017), the appellate court affirmed the liability finding but agreed with the defendant that the pain and suffering award was excessive and it ordered a reduction of the future damages award to $1,000,000. As a result, the damages award stands at $1,700,000.

The court’s decision mentions that plaintiff sustained a knee injury. Here are the injury details:

  • treated and released from hospital emergency room with narcotic pain medication, crutches and a knee immobilizer (which was worn for two months)
  • impaction fracture of the patella with displacement of the articular surface
  • physical therapy (13 weeks) and cortisone shots
  • post-traumatic arthritis with continuing pain and antalgic gait
  • unable to squat or move quickly
  • needs total knee replacement surgery in near future
  • major depressive disorder – aggravation of pre-existing controlled dysthemia (chronic low-level moderate depression)

kneefrac_2

Plaintiff had been a widely acclaimed and passionate amateur street photographer whose work “was at the core of her pre-accident life” and whose photographs were displayed in books and magazines. She claimed that her avocation was demolished as a result of her knee injury and disabilities which then in turn contributed to the development of her major depressive disorder. It appears the jury agreed after hearing extensive testimony not only from plaintiff but also from her treating orthopedic surgeon, mental health professionals, family members and friends.

Inside Information:

  • Plaintiff was helped to her feet at the scene of the accident and got onto a subway train to continue her trip but got off at 34th Street and called 911 for ambulance transportation to the hospital due to increasing knee pain and swelling.
  • Plaintiff’s pre-trial settlement demand was $2,500,000 against an offer of $50,000.
  • No medical experts testified for the defense although the five page three year old report of its examining orthopedic surgeon (finding no evidence of any disability) was placed in evidence by stipulation of the parties after the doctor’s appearance date in court was canceled when plaintiff’s counsel had to deliver a eulogy at the funeral of a close friend.
  • Plaintiff had posted about 65,000 photographs on Flickr, one of which received half a million views and one of which was chosen as the centerpiece for a major camera company’s advertising brochure.
  • Despite her injuries, within seven months, plaintiff was able to travel including trips to Nevada, Hawaii, Cuba, Sarajevo, Guatemala, Bali and India. She took photographs on each trip but argued they were merely “bucket list” trips, structured so she could refrain from any strenuous activity and she remained depressed and unable to experience any kind of the joy she would have but for the accident and injuries.

 

 

Pain and Suffering Verdict Affirmed for Scar on Infant’s Cheek

Posted in Medical Malpractice, Scars

On August 25, 2011 Erica Abreu was admitted to Montefiore Medical Center in the Bronx for an elective Caesarean section.

C section

The delivery, by two obstetrician-gynecologists, took only about 15 minutes and Stanley Pina was born without any complications except for a laceration on his cheek. Mother and child were discharged to home three days later.

In her ensuing medical malpractice lawsuit on behalf of her son, Ms. Abreu contended that the  two doctors negligently caused the laceration when they entered the uterine cavity with a scalpel without knowing the location of the head. On May 21, 2015, the Bronx jurors agreed and they awarded pain and suffering damages in the sum of $400,000 ($150,000 past – four years, $250,000 – 21 years).

The trial judge denied defendants’ motion to set aside the verdict on liability grounds or to reduce it as excessive. On appeal in Pina v. Chuang (1st Dept. 2017), both the liability and damages verdicts have been affirmed.

Here is a photo of the infant plaintiff introduced at trial as an exhibit:

photo (2)

Here are the injury details:

  • 3 centimeter long laceration treated immediately following delivery by stitches while under local anesthesia (the sutures dissolved on their own)
  • Two weeks of home treatment cleaning and applying ointment
  • Permanent, though barely visible, scar

Both sides presented plastic surgery experts who agreed that (a)  the scar was not very visible and (b) no future treatment is recommended. Plaintiff’s expert, Robert A. Guida, M.D., testified that the scar could be surgically excised, treated with a laser or injected with steroid medication but he found the risks involved with each of these procedures outweigh the benefits. Defendants’ expert, Burt Greenberg, M.D., testified that the scar could be permanent but it would not at all be painful.

Inside Information:

  • From the date of his discharge from the hospital through the date of the trial, the infant received no further treatment for his laceration and scar.
  • Ms. Abreu testified that she is concerned that “one day he [her son] would try to get a job and since he’s a minority they are going to look at him a different way because he has a scar on his face.”

Erroneous Preclusion of Evidence Requires Retrial of Damages Verdict in Spinal Injury Case

Posted in Back Injuries

On November 23, 2011 Melissa Shillingford was stopped for a red light on Beach Avenue at the Cross Bronx Expressway intersection.  As the light turned green, her 1997 Honda Accord vehicle was struck in the rear by a city bus.

1997 Honda Accord

A 1997 Honda Accord

Ms. Shillingford, then a 23 year old college student, claimed she sustained significant back injuries and sued the transit authority and its driver who defended claiming that plaintiff failed to move forward when the light turned green and also that wet leaves on the pavement created a slippery condition. On January 25, 2013 the defenses were rejected and a judge granted plaintiff’s motion for summary judgment and directed a trial to be held on the issue of damages only.

Two years later, the damages trial was held and on April 21, 2015 the Bronx jury awarded pain and suffering damages in the sum of $1,600,000 ($100,000 past – three years, $1,500,000 – 54 years) plus medical expenses in the sum of $830,000 ($30,000 past, $800,000 future – 54 years). The trial judge denied defendants’ motion to set aside the verdict rejecting the contention that the award of damages is excessive.

Defendants appealed, again arguing that the damages award is excessive and also arguing that the trial judge erred in precluding both testimony of their biomechanical expert and photographs of the vehicles after the accident. In Shillingford v. New York City Transit Authority (1st Dept. 2017), the appellate court agreed with the defendants as to the evidence issues, reversed the judgment entered after trial and remanded the case for a new trial on damages.

The appellate court did not address the issue of damages. Here are the injury details:

  • herniated disc at L4-5 requiring eight months of conservative treatment including physical therapy (about 45 office visits) and three epidural steroid injections
  • surgery on 3/24/13: laminectomy and partial discectomy (removal of the lamina and part of the facet joint to get to and remove the herniation at L4-5)
  • residual continuing pain and restricted range of motion with likelihood of two spinal fusion surgeries in the future

laminectomy-surgery1

The defense argued that the impact was minor, there was no herniation at L4-5 (just a bulge), plaintiff missed only one month from school (she was still a student at the time of trial), she already had a degenerative spine before the accident and her range of motion was normal after the surgery.

At the new trial, defendant’s biomechanical expert will be permitted to testify and offer his opinion on the maximum force that may have been applied to plaintiff and the likelihood of resulting injury. In his pre-trial report, the expert concluded that “the subject incident provided no mechanism for causing” plaintiff’s disc herniation.

Inside Information:

  • The defendants offered to settle for $1,200,000 before the verdict but plaintiff’s settlement demand at the time was $2,000,000.
  • There was no claim for lost earnings.
  • The jury deliberated for almost three days and reviewed all of the more than 20 exhibits that were in evidence.

 

Verdict in Neck and Knee Injuries Case Reduced on Appeal for Workers Compensation Benefits Received from Prior Accident

Posted in Economic Damages, Knee Injuries, Neck Injuries

On June 2, 2010, Rosemary McKnight was a passenger in a city bus which rear-ended a tanker truck on Nostrand Avenue in Brooklyn.

TA bus Nostrand Ave.

As a result, Ms. McKnight, then 48 years old, injured her neck and both knees. In her ensuing lawsuit against the transit authority and its driver, Ms. McKnight’s motion for summary judgment as to liability was granted in April 2011 and the case proceeded to a trial on damages only. On July 18, 2013, the Kings County jury awarded her total damages in the sum of $2,270,000 as follows (and as set forth in the verdict sheet):

  1. $900,000 for pain and suffering ($150,000 past – three years, $750,000 future – 25 years);
  2. $480,000 for lost wages ($80,000 past, $400,000 future – 11 years); and,
  3. $890,000 for medical expenses ($190,000 past, $700,000 future – 25 years).

The defendants appealed arguing that the awards for lost wages were excessive because, before the bus crash, plaintiff had been receiving Workers Compensation and Social Security Disability (“SSD”) benefits from a work-related accident eight years earlier. They also argued that the medical expense awards should be reduced because some of plaintiff’s bills were paid by no fault insurance. There was no challenge to the pain and suffering awards.

In McKnight v. New York City Transit Authority (2d Dept. 2017), the appellate court agreed with the defense to the extent that it ordered a $150,470 reduction of the lost wages awards to take into account the $205 per week plaintiff had received in Workers Compensation benefits since the new accident and that she would receive in the eleven years following the verdict.

comp

Under CPLR 4545, in personal injury lawsuits, the judge may reduce the amount of a plaintiff’s award if he finds that any element of economic loss encompassed in the award will be replaced, in whole or in part, from a collateral source. In this case, as contemplated by the statute, the judge conducted a post-trial collateral source hearing on August 25, 2014 at which the defendants offered evidence that plaintiff’s awards for lost wages and medical expenses should be offset by the Workers Compensation and SSD benefits she had been receiving and which defendants argued she would continue to receive in the future.

The trial judge declined to make any offset; however, the appellate judges disagreed and ordered the $150,470 reduction mentioned above to take into account the Workers Compensation benefits plaintiff had been receiving and, the appellate judges concluded, she would with reasonable certainty continue to receive for the eleven year period of her lost wages jury award.

Ms. McKnight’s earlier accident occurred when she tried to lift a heavy patient who fell while she was a nursing assistant at a senior care facility. As a result, she sustained injuries to her right shoulder and lower back, underwent rotator cuff and lumbar fusion surgeries, was unable to continue that job after about three years of light duty accommodation and was awarded Workers Compensation and SSD benefits.

At the time of her 2010 bus accident, plaintiff was preparing to re-enter the work force, having completed schooling to become a certified medical assistant. Her injuries in the new accident included herniated discs at C4-7, a torn anterior cruciate ligament in one knee and a torn meniscus in the other and required her to undergo cervical fusion and bilateral arthroscopic knee surgeries. She contended at trial that the new accident and injuries prevented her from engaging in any new employment.

cervical fusion3

Inside Information:

  • On the day of the bus accident, Ms. McKnight was on her way to an EKG test that was one of the last things she had to do to become and accept a job as a certified medical assistant.
  • Plaintiff was receiving SSD benefits of $1,080 per month for herself and $470 per month for her twin children (the kids’ benefit ended a month before the collateral source hearing). Thus, defendants sought a $244,300 offset to the lost wages awards. As set forth in the appellate court decision, the proof was insufficient to justify an offset for the SSD benefits. The court also held that the evidence was insufficient to justify any offset for no fault insurance benefits.

 

Subway Tracks Accident – Jury’s Pain and Suffering Verdict Affirmed after Court of Appeals Addresses Liability Issues

Posted in Amputation Injuries, Foot Injuries

On March 9, 2006, Robert Obey fell onto the tracks at a subway station in Manhattan. Shortly thereafter, a train ran over his left foot.

The Scene of the Accident

Mr. Obey, then 51 years old, sued claiming that the transit authority’s conductor was negligent because he could have stopped the train in time to avoid the accident.

The defense claimed that the motorman in question did nothing wrong, plaintiff may have been on the tracks for 45 minutes or so and there was insufficient evidence as to which of many trains may have struck him and the accident was plaintiff’s fault in view of:

  1.  his admission that he attended a Methadone clinic before the incident (for his longstanding heroin addiction),
  2.  testimony, from a psychologist plaintiff treated with two days after the fall, that he was “high on” psychoactive prescription drugs that can cause dizziness and fainting,
  3.  the fact that he had little recall of how the accident happened, and
  4.  plaintiff’s many and significant contradictions throughout the litigation.

On January 23, 2014, a Manhattan jury determined that liability should be split – 40% to the defendant and 60% to plaintiff.

The same jury then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – eight years, $200,000 future – 20 years). They also awarded damages for medical expenses in the sum of $1,500,000 ($1,000,000 past, $500,000 future).

The trial judge agreed with the defense that the verdict should be set aside and the case dismissed because there was insufficient evidence of any fault at all on the part of the motorman. Plaintiff’s cross-motion to increase the pain and suffering damages award was denied as moot. The trial judge’s decision was affirmed on appeal (by a vote of 3-2) but the Court of Appeals reversed and reinstated the verdict.

The intermediate appellate court then reviewed the case and in Obey v. New York City Transit Authority (1st Dept. 2017) declined to modify the damages award.

As indicated in the various decisions, plaintiff sustained a partial foot amputation that required emergency surgery and extended hospitalization and rehabilitation. Here are the injury details:

  • severe crush injury to left foot with obvious deformity, complex open fractures and multiple dislocations of first three metatarsal bones
  • emergent surgical completion of transmetatarsal amputation with Mayo scissors to cut remaining connective tissue between the tarsal bones
  • seven irrigation and debridement procedures
  • hospitalized for three weeks
  • surgical revision of traumatic mid-foot amputation to Chopart’s amputation with removal of additional bones and harvesting of a split-thickness graft to cover and close the wound
  • discharged from hospital to rehabilitation center for seven years
  • continuing and chronic pain
  • can walk only with an ankle-foot orthosis, with a cane and only for one-half hour a day

foot amputations

Plaintiff’s medical expert opined that Mr. Obey needs a below-the-knee amputation to treat his chronic wound drainage but plaintiff testified he is apprehensive and has no plans to submit to the surgery.

Inside Information:

  • The past medical expense award was agreed upon by the parties based upon actual bills; they are subject to a collateral source hearing/reduction.
  • Robert Goldstein, M.D., an orthopedic surgeon, testified for plaintiff as a non-treating expert; there was no expert for the defense.
  • In his closing argument, plaintiff’s attorney suggested a 50-50 split on liability and asked the jury to evaluate pain and suffering damages at $5,000,000.
  • One month before this incident, plaintiff jumped onto a subway station’s tracks to retrieve a fare card; when confronted by a police officer at the time, he claimed he’d fallen onto the tracks. Defense counsel suggested plaintiff was suicidal.

Ankle Injury Pain and Suffering Awards Increased

Posted in Ankle Injuries

On October 3, 2009, then 12 year old Rajendra Sawh was in the area of a construction site when a box of roofing shingles fell from the from the site’s roof onto his right leg and ankle.He was rushed to the hospital where he was admitted for emergency surgery.

In the ensuing lawsuit against the construction company and building owner, defendants conceded liability and the matter proceeded to a trial on damages only.

On June 12, 2014, after a four day trial in Queens, jurors awarded plaintiff pain and suffering damages in the sum of $100,000 (past only – four and a half years). The trial judge agreed with plaintiff that the failure to award anything at all for future pain and suffering was improper and he issued a post-trial decision awarding $400,000 for future pain and suffering damages.

In Sawh v. Bally Contracting Corp. (2d Dept. 2017), the appellate court determined that $100,000 for past pain and suffering is inadequate and ordered an increase of the past pain and suffering award to $300,000. Accordingly, after two judicial reviews, plaintiff’s pain and suffering award stands at $700,000 ($300,000 past, $400,000 future).

As mentioned in the appellate court decision, plaintiff sustained a bimalleolar ankle fracture and a [Salter-Harris II] tibial fracture which damaged his epiphyseal or “growth” plate. He underwent three surgeries, needed a fourth and was left with pain, limitations,  restricted range of motion and an angular deformity.

Salter-Harris II fracture

Salter-Harris II Fracture

Here are the injury details:

  • Five day hospital admission; diagnosed with a bimalleolar ankle fracture consisting of comminuted fractures of his tibia and fibula, and a Salter-Harris II fracture of the tibia
  • Closed reduction of fractures followed by open reduction internal fixation surgery in which two cannulated screws were implanted in the ankle
  • Surgery #3 on 6/27/11 – hardware removal
  • Angular deformity in ankle mortise – a varus tilt – of about six degrees
  • Development of tibial-fibular synostosis (a bone fusion of the tibia and fibula), requiring a future fourth surgery called an opening wedge osteotomy

varus deformities

While they did not challenge the trial judge’s decision to award $400,000 for future pain and suffering, defendants argued that the jury’s $100,000 award for past pain and suffering was reasonable because plaintiff quickly returned to his usual and customary activities and:

  • after the hardware removal surgery, plaintiff played one year of Little League baseball, followed by one year on his high school’s junior varsity baseball team
  • at trial plaintiff testified he is able to walk up and down stairs, does not have a limp and is able to run for about 15 minutes before his ankle becomes stiff

Plaintiff argued on appeal that the past pain and suffering award should be increased to $500,000 because the pain, treatment, and disabilities were all very significant with permanent range of motion losses in dorsi-flexion (75%), plantar flexion (25%) and sub-talar joint (100%) as well as parasthesia in his heel.

Inside Information:

  • The jury deliberated for four hours without asking to review any evidence in the jury room or read back any of the testimony; instead, they submitted a single question inquiring about how much money the trial attorneys would earn. Plaintiff argued that this demonstrated that the jurors did not follow the law and render a decision on the evidence in the courtroom, but instead reached their determinations on matters outside the courtroom such as “passion, partiality, prejudice or some other improper motive that led the jury astray.”
  • Defendants argued on appeal that plaintiff’s ankle deformity was minor, the synostosis was not significant and there was no need for any further orthopedic care. In reply, plaintiff characterized these defense arguments as misleading because, due to the angular deformity, in 2015 plaintiff underwent the fourth surgery (to have his bones realigned). While conceding that the recent surgery was immaterial to the appeal because it was outside the record of the trial, plaintiff noted that because defense counsel knew about this surgery it was “absurd” for them to try to give the appellate court a “distorted representation when the truth is known by all sides to be otherwise.”

 

 

 

Emotional Distress Pain and Suffering and Punitive Damages Awards Affirmed in Workplace Sexual Harassment Suit

Posted in Psychological Damages, Punitive Damages

Denise Rivera began working for United Parcel Service, Inc. (UPS) in 2001 at a facility in the Bronx. She was promoted several times, eventually to a supervisor position in 2004. Shortly thereafter, a fellow supervisor began a  campaign of sexual harassment which ended with her termination from UPS on July 10, 2007.

ups-office

Ms. Ramos, then 40 years old and earning about $75,000 annually, sued UPS for damages for sexual harassment and retaliation. At the conclusion of a seven week trial in March 2014, the judge charged the jury and the Manhattan jurors then found in plaintiff’s favor on both of her claims and awarded emotional distress pain and suffering damages in the sum of $300,000 (all past – six and a half years) as well as loss of earnings in the sum of $730,000 ($420,000 past, $310,000 future) and punitive damages in the sum of $300,000.

The trial judge issued a post-trial decision ordering a reduction in the loss of earnings awards to $607,750 (discussed below) to which plaintiff consented.

In Rivera v. United Parcel Service, Inc. (1st Dept. 2017), the appellate court affirmed the emotional distress and punitive damages awards as well as the reduced lost earnings awards.

Plaintiff’s problems at UPS began after she became separated from her husband when her fellow supervisor started making advances towards her. She testified that he told her he was available and she should be with him. He called her at all hours but she told him she was not interested in him. Then, she said, he tuned on her started making vulgar and obscene comments to her and was abusive towards her at work. The day after she formally complained, she was assigned to another location, an undesirable one entailing additional work. Then, rumors of her sexual promiscuity with other UPS drivers were spread throughout the workplace. Again she formally complained and again she was promptly transferred to other locations and then fired.

UPS claimed  that the supervisor’s conduct was neither unwanted nor unwelcome and that this case was not about retaliation but instead about plaintiff’s “lies and deception.” Further, defendant claimed, plaintiff falsified records and improperly authorized a premises security breach (allowing a driver to avoid passing through the metal detector at day’s end) and these were the justifiable reasons she was fired.

Defendant argued that $300,000 for emotional distress damages was excessive because, while plaintiff began counseling at the end of 2007 in connection with her failed marriage, it was not until September 2009 that she went for counseling which she attributed to her experiences at UPS (and the counseling was intermittent and lasted only a few months). Defendant urged that this aspect of the award should be reduced to no more than $50,000.

There was no testimony from any health care professional or therapist; instead, plaintiff relied upon her own testimony and records which she argued supported the emotional distress award.

The jury’s past loss of earnings award was reduced by $112,250 because (a)  the jury failed to take into account the amounts which plaintiff earned at several jobs after her termination and (b) plaintiff’s decision (after wrongful termination from one of those jobs) to forego comparable employment constituted a failure mitigate her damages. The future loss of earnings award was reduced by $10,000; plaintiff’s attorney only asked for $300,000 based upon a claimed loss of $30,000 per year for 10 years.

The jury determined that UPS, through its employees, acted with malice and reckless indifference to plaintiff’s rights and to the risk that its conduct might violate the law, its conduct was reprehensible and that plaintiff was thus entitled to an award of punitive damages. After the verdict was rendered, plaintiff elicited the testimony from a UPS finance director confirming public filings showing that in 2013 UPS had net income of $4,372,000,000. The attorneys then made closing arguments as to the punitive damages claim and the judge charged the jury as to the law on punitive damages. The appellate court affirmed the $300,000 punitive damages award after noting the defendant’s “substantial income” and comparing the award with those in similar cases.

Inside Information:

  • Prior to trial, plaintiff successfully moved to preclude evidence of a consensual sexual relationship she had engaged in with a co-employee unrelated to her claims in the lawsuit. The judge ruled that private sexual relationships are essentially irrelevant in sexual harassment cases and that a plaintiff’s private sexual behavior does not change his or her expectations or entitlement to a workplace free of sexual harassment.

Appellate Court Modifies Pain and Suffering Damages Award in Steam Pipe Explosion Case

Posted in Foot Injuries, Leg Injuries

On July 18, 2007 at about 5:20 p.m., Marjorie Kane was standing on the corner of 40th Street and Lexington Avenue in Manhattan, waiting to cross the street when she was suddenly catapulted into the air by an underground steam pipe explosion.

Kane - explosion

A woman walking past the scene of the explosion on 7/18/07.

The explosion created a crater 32 feet square and 16 feet deep and resulted in one fatality, injuries to several others, and extensive property damage.

Ms. Kane, then a 70 year old administrative assistant at a major law firm, ended up under a pile of bricks and stones where she lay helplessly for 40 minutes until she was rescued by a fireman. Incoherent and gasping for air, she was rushed to the hospital where she was admitted and treated for massive leg injuries.

Ms. Kane sued (1) the steam pipe owner and operator, Consolidated Edison Company of New York, Inc. (Con Edison), (2) the City of New York and (3) the contractor that Con Ed used to seal leaks at the steam main, Team Industrial Services, Inc.

On February 19, 2015, a Manhattan jury awarded plaintiff pain and suffering damages in the sum of $11,822,000 ($4,380,000 past – seven and a half years, $7,442,000 future – 15 years). The trial judge ordered a reduction to $4,000,000 ($2,500,000 past, $1,500,000 future).

All parties appealed – plaintiff arguing that the awards were too low and defendants arguing that they were too high. In Kane v. Consolidated Edison, Inc. (1st Dept. 2017), the court determined that the trial judge’s reductions went too far and held that the proper award for plaintiff’s pain and suffering is $4,750,000 ($3,250,000 past, $1,500,000 future).

As stated in the appellate court decision, plaintiff sustained severe injuries to her right lower leg and foot that required multiple surgeries and extensive hospitalization and left her with permanent pain and disabilities.

Here are the injury details:

  • While trapped under the rubble, plaintiff was struck with chunks of asphalt, rock and debris and sprayed by boiling water. She was unable to open her eyes or move and was certain she was about to die.
  • Upon removal from the rubble, plaintiff’s leg below the knee was “detached except for pieces of skin.”
  • Crushed leg with open wound, degloving (ripping away of skin), compound fractures of her right lower extremity – a Grade III-B open tibia fracture – and an open calcaneus fracture.

Type-IIIB-tibia-fracture.png

  • On the day after the explosion, plaintiff underwent open reduction internal fixation surgery to insert an intramedullary nail and five locking bolts into the tibia as well as the first of about six extremely painful surgical wound debridements (she also later underwent about 25 more bedside debridements).
  • Left ventricle rectus micro-vascular free flap and and a split thickness skin graft to her right lower extremity requiring an incision from plaintiff’s chest down to her lower abdomen to remove her rectus muscle and wrap it around her lower calf to her heel to reattach her ankle area and foot.
  • Fifth toe distal tip (one centimeter) excision/amputation (due to gangrene).
  • Closure of heel wound, with skin graft and excision of remaining exposed calcaneous.
  • Due to non-union of tibia-fibula fractures, removal of the nail/rod and application of an I-T Spatial Frame (external fixator) with a wire, six pins and an external foot ring.
  • Surgical removal of the foot plate of the fixator followed six months later by removal of the remainder of the device
  • Seven months of inpatient treatment at hospitals and other facilities, including four months at Bellevue Hospital Center and two months at a nursing home until she was finally discharged to home on 2/11/08.
  • Five prolonged episodes of Clostridium difficile (C. diff.), a bacterial infection with uncontrollable diarrhea (caused by antibiotic medications) that was so bad plaintiff testified she “would rather die than suffer the effects of C. diff again.”
  • Home health aide for six months.
  • Chronic daily unremitting pain, especially in heel.
  • Unable to run, dance, or walk more than six blocks; cannot place right heel directly on the ground; partial foot drop; right leg is one inch shorter than left (requiring orthotics and heel lift); frequent tripping; unable to take subway due to stairs; unable to resume hobby as accomplished pianist (cannot use pedals).
  • Keloid scar running from breast to waist and scarring with discoloration from thigh grafts.

Defendants argued that the pain and suffering awards were excessive because plaintiff made a “good recovery,” albeit with “some residual limitations” and she is active, independent, hasn’t used a cane since 2010 (except for during bad weather), walks an hour a day and has only mild chronic residual ankle pain. Furthermore, they noted that no physician advised plaintiff that she required assistive walking devices any longer and she has not (a) had medical treatment for her injuries for the six year period up to the date of trial (except for physical therapy) or (b) required pain medication for her leg since the fall of 2008.

Inside Information:

  • This was a reverse-bifurcated trial meaning that the jury was asked to determine damages only. Liability has not yet been tried.
  • Plaintiff reached an undisclosed settlement with Con Edison in July 2014.
  • The trial judge charged the jury, among other things, that Ms. Kane had a 10.3 year life expectancy; nonetheless, the jurors awarded future pain and suffering damages for 15 years.
  • In his summation, plaintiff’s attorney asked the jurors to award $16,000,000 for past pain and suffering plus $6,000,000 for the future. One of the defendants’ attorneys suggested a total pain and suffering award of $2,000,000; the other suggested $2,375,000.

 

Pain and Suffering Damages Increased in Head-On Car Crash Case

Posted in Back Injuries

On July 1, 2013, the car Theresa Lamphron-Read was driving on Chili Avenue in Rochester was struck head on by a car whose driver had lost control and crossed into her lane.

police reportIn Ms. Lamphron-Read’s ensuing lawsuit against the other driver and owner, summary judgment was granted and the case proceeded to a trial on damages.

On November 9, 2015, a Monroe County jury awarded plaintiff pain and suffering damages in the sum of $25,000 (all past – 2 1/2 years). Plaintiff’s post-trial motion arguing that the damages award was inadequate was granted and the trial judge ordered an increase to $130,000 ($65,000 past, $65,000 future).

In Lamphron-Read v. Montgomery (4th Dept. 2017), the $130,000 award has been affirmed.

As set forth in the appellate court decision, plaintiff sustained seven non-displaced vertebral fractures – the transverse processes from T5-T9, L-1 and the endplate of a facet at C-4. She was hospitalized for a week but never underwent any surgery nor is any expected.

Plaintiff was required to wear a TLSO (thoracic-lumbar-sacral orthosis) brace for three months.

TLSO back brace

While it was undisputed that as a result of the crash the then 65 year old plaintiff had permanent paraspinal muscular injuries with chronic activity-related back pain for which there was no available remedy, her fractures healed well and her last medical treatment was one year before the trial.

Plaintiff, retired from her employment in daycare and companion care for seniors, testified that sitting and walking aggravate her back pain, she has difficulty falling asleep and she experiences pain with significant physical activities. Her expert orthopedic surgeon opined that plaintiff would always suffer from “activity related pain,” a term he said accurately described plaintiff’s condition as opposed to chronic, unrelenting pain.

thoracic-vertebrae-superior-articular-proceess-transverse-costal-facet

In arguing for a return to the jury’s $25,000 award, defendants noted that plaintiff was able to mow her lawn, walk her dog and do grocery shopping and that the only activities she could not perform are painting and climbing a ladder. They argued that plaintiff made a very good recovery and, at most, would have minor intermittent mid-back pain depending upon her activity level.

Inside Information:

  • In summation, plaintiff’s counsel asked the jury to award $40,000-$80,000 for past pain and suffering damages plus $100,000-$200,000 for future pain and suffering. In her post-trial motion seeking additur, plaintiff sought $50,000 for past pain and suffering and $100,000 for the future.
  • Defendants presented no witnesses at the damages trial and their failure to call their orthopedic surgeon who examined plaintiff resulted in a missing witness charge. They claimed that their doctor’s testimony would have been duplicative since his findings were virtually identical to the findings of plaintiff’s doctor.
  • Plaintiff’s medical expert testified in the absence of her treating doctor because he had moved to Texas and was unavailable.

Pain and Suffering Awards Increased on Appeal for Man Run Over by SUV

Posted in Neck Injuries

On May 26, 2010 Marshall Starkman was sunbathing on a beach chair when a City of Long Beach police officer struck him while driving his SUV patrol car. Mr. Starkman, then 43 years old, was thrown off his chair, flipped onto his stomach and then the vehicle ran over his back.

Photo of Beach from Newsday article

In the ensuing lawsuit against the City of Long Beach and the police officer, plaintiff was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

After a month long trial with 24 witnesses, on February 14, 2014, a Nassau County jury awarded plaintiff pain and suffering damages in the sum of $1,250,000 ($500,000 past – 4 1/2 years, $750,000 future – 30 years). Plaintiff challenged the award as inadequate but the trial judge denied the post-trial motion.

In Starkman v. City of Long Beach (2d Dept. 2017), the appellate court agreed with plaintiff that the award was inadequate and increased the pain and suffering damages to $2,250,000 ($750,000 past, $1,500,000 future).

As set forth in the appellate court decision, plaintiff sustained fractures of transverse processes of three vertebrae and underwent two spinal surgeries.

spine anatomy 2

Here are the injury details:

  • found face down in sand with tire tracks on back; taken by helicopter to hospital; diagnosed with fractures of C-6, C-7 and T-1 transverse processes and three ribs as well as atrial fibrillation and heart contusions; admitted for three days
  • herniated cervical discs and radiculopathy treated initially with physical therapy and pain management (including injections and medication)
  • surgery #1 on 10/5/11 – three level anterior cervical fusion at C4-5, C5-6 and C6-7 with decompression, bone graft and insertion of plate and eight screws
  • non-union of each of the three levels operated on
  • surgery #2 on 2/8/13 – posterior spinal fusion of the C4-5 and C6-7 levels with additional screws
  • heart contusion, premature contractions, ventricular atrial fibrillation and, on 8/2/12, ablation surgery; 70% chance of heart attack (compared to 15% for an otherwise healthy man)
  • permanent 40% loss of range of motion of neck with chronic pain requiring extensive medication
  • post-traumatic stress disorder (PTSD), depression, anxiety and sexual dysfunction
  • unable to return to work, drive or engage in any athletic activities; spends most days at home sleeping, watching television or in some other sedentary activity

The defendants argued that according to imaging studies, plaintiff had long-standing degenerative cervical disc disease, did not need the surgeries he underwent, did not have PTSD and could return to work.

The jury also awarded plaintiff $300,000 for medical expenses ($100,000 past, $200,000 future – 18 years) and $650,000 for loss of earnings ($200,000 past, $450,000 future – 14 years).

Plaintiff had been employed as a store manager at T-Mobile earning about $79,000 a year. He never returned to work and his expert vocational rehabilitation counselor, Charles Kincaid, Ph.D. opined that he never would. To the contrary, defendants’ expert vocational rehabilitation counselor, Beth Greenbaum, Ph.D., opined that there are several jobs, such as sales manager and human resource manager, that plaintiff could perform and which would pay him more than $100,000 a year.

Inside Information:

  • In his summation, defendants’ attorney did not recommend a damages amount but he did suggest that plaintiff was exaggerating his injuries and disabilities; plaintiff’s attorney asked the jury to award $11,500,000 for pain and suffering damages.
  • The judge charged the jury that according to statistical tables, plaintiff’s life expectancy was 30 years and his work life expectancy 22 years. While the pain and suffering award was for 30 years, the future loss of earnings award was for only 14 years (and the future medical expenses award was for 18 years).
  • Mr. Starkman loved to work and had never missed a single day of work in his life.
  • There was no spousal loss of consortium claim. Plaintiff and his wife had been together since 1991 and married in 1997. By 1999, though, they entered into a separation agreement and separated for a year. They were divorced in 2009 but remarried after the accident.