New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

When a defendant has been found liable causing for a car accident and the jury verdict includes amounts for past pain and suffering and future medical expenses but nothing at all for future pain and suffering, a new trial is required under New York law.

On August 22, 1996 Lindsay Grobman, then 17 years old, was a passenger in a car driven by Adam Chernoff. After a 30 mph head on collision, Lindsay was left complaining of head, neck and back pain.

What followed over the next four years until the trial of this case in Nassau County, New York was a fairly typical medical treatment scenario in car accident cases:

• pain at the scene, ambulance to the hospital,
• x-rays negative,
• a week or more out of work,
• return to work with pain,
• diagnosis of cervical or lumbar herniated or bulging disks

Lindsay's pain persisted and finally an electroyogram (EMG) indicated nerve damage in her neck.

EMG involves testing the electrical activity of muscles and is often performed with a nerve conduction study to measure the conducting function of the nerves.

Here's what an EMG  looks like:

At trial four years after the accident, Lindsay still complained of the same pain which her doctor said was permanent and caused by herniated or bulging disks in her neck. The defense doctor testified she was fine and not hurt from the accident.

A trial on liability for the accident was held in June 2000 and the Nassau County jury found the driver 100% at fault for the accident. A second jury was directed to try only the issue of damages. In August 2001, the new jury found that Lindsay's neck and back injuries represented a permanent consequential limitation of the use of a body organ or member (one of the prerequisites under New York's Insurance Law Section 5102 before a person hurt in a car accident may recover any pain and suffering damages whatsoever). [My colleague Eric Turkewitz discusses some of the intricacies and nuances of this law over at New York Personal Injury Law Blog]

The jury awarded Lindsay Grobman damages in the total sum of $10,000 as follows:

1. $1,100 for past pain and suffering (four years)
2. $-0- for future pain and suffering
3. $8,900 for future medical expenses (58 years)

The plaintiff appealed, arguing that the verdict was inconsistent in finding a permanent injury and awarding damages for future medical expenses but failing to award any future pain and suffering damages. The appeals court agreed in Ajoudanpour v. Globman and ordered a new trial on damages. Instead, the plaintiff and defendant agreed, as was their right, to submit their case to an arbitrator who then conducted a hearing and in May 2005 rendered an award in plaintiff's favor in the sum of $125,000.

The arbitrator awarded $125,000 for Lindsay's pain and suffering essentially due to herniated disks in her neck that probably looked something like this:

A second and third appeal ensued concerning the arbitration procedure, the timing and amount of interest on the arbitrator's award and whether in general the award should be confirmed by the court. In the latest appeal, the court confirmed the award and reiterated that the jury's failure to award future pain and suffering damages was inappropriate.

This case is one of many in which jury verdicts appear to be inconsistent - either the product of confusion or perhaps too jurors' refusal to follow instructions from the trial judge. In this case, another factor may have been present: the legendary stinginess of Nassau County jurors and the growing trend of jurors disinclined to award significant pain and suffering damages in cases where there's been no surgery and there are few clearly objective signs of the injuries and pain complained of.

No doubt jurors in New York injury cases and elsewhere will continue to be confused in their deliberations and inconsistent in their pain and suffering awards. When they are and the appellate courts step in to issue corrective rulings, we will revisit these issues.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The scapula, also known as the shoulder blade, is the flat triangular bone of the shoulder girdle. It articulates with the clavicle (the collarbone) and it forms the glenoid fossa with which the humeral head articulates.

Take a look:

There aren't a lot of scapula fracture cases or decisions that result in large pain and suffering damage awards or appellate court decisions. In part, that's because when it's only the scapula that's injured it's usually not too serious and heals well without surgery. When it's a bad scapula fracture, there are often other injuries too such as head injuries or facial fractures which often dwarf the scapula fracture insofar as pain and suffering is concerned.
 

This month, though, an appeals court in New York weighed in on the amount of pain and suffering damages that's proper in a case involving only a scapula fracture. In Keaney v. City of New York, a 57 year old construction worker was unloading wooden planks and frames when two planks fell from the top of 30 foot scaffolding and struck the plaintiff on the right shoulder, knocking him to the ground.

Michael Keaney was taken by ambulance to the hospital where he was diagnosed with an extensive, comminuted fracture of his right scapula. By the time of  trial seven years later, the fracture itself had healed but Keaney testified that he:

• could no longer raise his right hand and had to use his left hand for all activities of daily living such as using the toilet, shaving and brushing his teeth.
• underwent physical therapy for seven years
• was still on painkillers seven years later, and,
• was never able to return to work

The Queens County jury awarded Keaney $1,6000,00 for his pain and suffering ($700,000 past; $900,000 future) and the defense appealed arguing that the verdict amount was excessive.

The appeals court agreed with the defense and ordered a reduction to $500,000 ($200,000 past, $300,000 future).

The $500,000 for pain and suffering for a fractured scapula in a 57 year old man is the highest reported such verdict (i.e., for a case involving only the scapula). Plaintiff argued that his injuries  were unique in that:

• his arm served no practical functional use and caused him exquisite, worsening pain
• his testified that he suffered a massive permanent shoulder girdle injury and adhesive capsulitis ( frozen shoulder)

Inside Note: The appeals court indicated that a major reason for the reduction of the jury's verdict was that plaintiff had not submitted to the arthroscopic surgery his orthopedic surgeon recommended and had testified would likely help the plaintiff's condition. Judges routinely instruct juries using New York's Pattern Jury Instructions (in this case PJI 2:325) that:

a plaintiff who fails to have a recommended operation may be held to be unreasonable and denied all or some damages. If, though, the plaintiff satisfactorily shows the jury that his refusal to submit to surgery was due to his inability to pay for it (as was the case with Keaney) or that the surgery would not have relieved the pain (argued here) then the jury is told it should not reduce damages.

Clearly, in awarding $1,600,000, the jury in this case "bought" all of Keaney's arguments concerning the reasons he declined the surgery. Therefore, the appeals court should not have taken into account the surgery refusal in reducing the pain and suffering award.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's rare that the Court of Appeals, New York's highest court, rules on the proper amounts for pain and suffering in accident or medical malpractice cases. Usually, jury verdicts are challenged by the aggrieved party at the trial court level (a post-trial motion addressed to the trial judge) and/or at the intermediate appeals court level (one of the four statewide Appellate Division courts). Last week, though, the Court of Appeals weighed in on the pain and suffering verdict in a medical malpractice case.

Lang v. Newman (link is to Court of Appeals decision; Appellate Division decision is here) involved the claims of a 26 year old woman who woke up on January 14, 2003 with weakness on her left side, lightheadedness and tunnel vision. After an ambulance took her to the hospital, she also complained of nausea and a severe headache. Ms. Lang was given a CT scan (it was negative), medicated, observed, offered a lumbar puncture (she declined) and after a couple of hours she was feeling much better, had no pain and the difficulties on her left side seemed to have abated. She was discharged to home with a diagnosis of migraine headaches (from which Ms. Lang suffered in the past).

Within hours she was back in the hospital and ultimately diagnosed with an ischemic stroke (a cerebral infarction caused by an inadequate supply of blood and oxygen due to a blocked artery).

She then sued the doctors.

Liability against one of her doctors was found by the Cortland County jury which concluded that the doctor prematurely discharged her from the hospital without further observation and treatment. While it was ultimately determined that Ms. Lang had already been suffering from a stroke when she first came to the hospital, the doctor was found to be liable for $300,000 in past pain and suffering damages (four years from the incident to the trial date) because of expert testimony that timely admission and treatment would have made the effects of the stroke less severe.

Plaintiff sought in addition substantial future pain and suffering damages claiming that sensory changes on her left side, a seizure disorder and worsening anxiety were all caused by the malpractice and are permanent. The jury's refusal to award her anything at all for the future was upheld by the appeals court.

The defense presented evidence that the plaintiff's seizure disorder had fully resolved by the time of trial and that whatever other symptoms she complained of were mild, subjective and could not be quantified. The trial judge concluded (and the appeals courts agreed) that it was not irrational for the jury to conclude that the majority of plaintiff's symptoms resolved prior to trial and that those that remained were either so minimal as to warrant no compensation or not satisfactorily proven by objective, credible medical evidence.

This was a hard fought case both on liability and damages grounds. The defense doctors claimed no liability because plaintiff's stroke had already occurred before she came to them and it seems there's merit to that position. Unfortunately, the jury, the judge and two banks of appeals courts judges (except for a lone dissent at the Appellate Division) disagreed. The plaintiff claimed she should be awarded millions in future damages because of the lifelong effects of the stroke (she was only 26 at the time); however, the jury clearly agreed with the defense that either she had already fully recovered or that whatever deficits she was left with could not - because she already had the stroke before being treated by the defendants - clearly be assigned to the malpractice.

Both sides walked away from this case feeling the sting of a loss.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A 35 year old healthy construction worker was helping to build a new Lowe's Home Depot in Orangeburg (Ulster County), New York on November 14, 2002 when he fell off the roof 22 feet striking his head on the ground below.

After 63 days in the hospital (57 of them in a coma), 11 surgeries and 65 more days in a rehabilitation hospital,  Robert Doviak was left totally and permanently blind, with a sense of touch that was seriously compromised, partial loss of hearing and no sense of smell or taste. Additionally, he had substantial orthopedic injuries including fractures of his left femur, several cervical vertebrae, both zygomatic arches and other bones in and about his face and eyes, his left hand and his right wrist.

Doviak's wife hired Finkelstein & Partners, a well known personal injury law firm in Newburgh, New York and they began a lawsuit against Lowe's and others based on New York's Labor Law which provides that owners of commercial buildings under construction are liable for injuries suffered by workers when they involve falls from heights. A judge granted plaintiff's motion for summary judgment on liability grounds and the case then proceeded to a jury trial to determine the amount of damages.

In Doviak v. Lowe's  Home Centers, Inc., an Ulster County jury found that plaintiff was entitled to $1,000,000 for his pain and suffering ($200,000 past; $800,000 future - 32 years) plus additional amounts for his lost earnings and medical expenses and his wife's loss of consortium. The jury's total award for all elements of damages was thus $3,700,000.

Since each element of a future damages verdict that is more than $250,000 must under New York law (CPLR 5014) be calculated to present value (usually resulting in a significantly lower figure) before a judgment is given to a plaintiff,  the $3,700,000 jury total really represented only about $3,000,000 for the plaintiff.

In a post-trial motion, the pain and suffering award was found by the trial judge to be unreasonably low and a new trial was directed to be held unless defendants agreed to increase the pain and suffering sum to $4,100,000 ($1,200,000 past and $2,900,000 future). Plaintiff appealed and the appeals court this week (properly relying, in part, on Villaseca v. City of New York, a loss of vision case we discussed here) added another $1,000,000 to plaintiff's future pain and suffering award which is now $5,100,000 ($1,200,000 past; $3,900,000 future). The new total (including the earnings, medical expenses and consortium claims) is $9,300,000 - a present value of about $7,000,000.

As always, and especially in catastrophic injury cases like this one, no amount of money ever makes  the injured plaintiff feel like the whole thing was worth it. Neither $7,000,000 nor $100,000,000 would be enough for any sane person to undergo what Robert Doviak has undergone and will suffer with for the rest of his life.

Now for the inside information. During the trial, the defendants offered on the record to settle for a present value of $9,250,000. Plaintiff's then attorney, without plaintiff present, rejected that offer on the spot. The next day, the defense increased the settlement offer to $10,000,000. Again it was rejected. Finally, still before the verdict, the defense made a final settlement offer -  $12,000,000. Doviak says the offer was rejected by the Finkelstein firm without bothering to consult him.

Did Doviak's lawyers fail to inform him of the $12,000,000 offer?

After the trial, the plaintiff fired Finkelstein and hired two new firms. Levy Phillips & Konigsberg (a New York City personal injury law firm best known for its extensive advertising about and its mass representation of plaintiffs in asbestos exposure lawsuits) was hired to handle the appeal decided this week. Another firm was hired to sue the Finkelstein firm for malpractice. In the malpractice suit, Finkelstein & Partners admits that the $12,000,000 offer was made but denies it acted improperly.

Doviak and his new attorneys are claiming that errors were made by Doviak's trial counsel which cost Doviak  $7,000,000 ( the difference between the settlement offer and the final appellate court figures). Here are some of the matters relevant to the ongoing malpractice dispute:

•  significant settlement offers must be conveyed to clients and if rejected then the rejection should either be on the record or in writing (with a full explanation of the consequences also on the record or in writing)
•  attorneys (and their injured clients) should not let greed serve as the foundation of a personal injury lawsuit - during summation, Doviak's attorney asked the jury to award Doviak $60,000,000 for pain and suffering, an amount Doviak's new attorneys say is preposterous and evidence of awful advocacy and which defense counsel says revealed the greed that served as the foundation of plaintiff's case

As the attorney malpractice case progresses (and surely it will move quickly now that the appeals court has ruled on the propriety of the verdict figures), we will report on claims, defenses and developments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On November 12, 2002, Florencio Hernandez, a 63 year old retired maintenance man, was walking home in New York City. He was in a crosswalk at Madison Avenue and 115th Street when, all of a sudden, a bus slammed into a taxi. After spinning around, the taxi slammed into Mr. Hernandez, threw him into the air and when he landed he struck his head on the concrete street rendering him unconscious and causing profuse bleeding from his head.

The bus driver insisted she was free of fault so the case headed to trial five years later and on April 19, 2007 a Manhattan jury found the bus driver 100% liable for the accident and the injuries to Mr. Hernandez. And the jury awarded Hernandez pain and suffering damages of $2,750,000 ($1,000,000 past, $1,750,000 future) for his traumatic brain injuries ("TBI").

Last week, an appeals court upheld the jury's findings. The decision in  Hernandez v. Vavra is here.

The defense argued that $2,750,000 in pain and suffering damages for a retired man in his 60's (he was almost 70 by the time of trial) was excessive, especially in view of the facts that plaintiff had previously been disabled due to a heart condition and was already suffering from diabetes, hypertension, arteriosclerosis and had suffered two strokes before he was injured in the bus-taxi crash. And the defense argued that a cerebral infarct suffered a week after the crash could not have been caused by the accident. Finally, as so often happens in TBI cases, the defense contended that the plaintiff was fabricating his injuries.

The plaintiff and the appeals court judges disagreed and concluded that the jury acted reasonably in awarding the $2,750,000 based on the following injuries sustained in this accident:

1. subarachnoid hemorrhage (bleeding in the area between the brain and the thin tissues that cover the brain)    
2. cerebral infarct (a kind of stroke caused by a disturbance in the vessels supplying blood to the brain)
3. memory loss
4. speech difficulties including the inability to name objects known to him
5. loss of sensation over his entire face
6. decreased hearing in one ear
7. constant pressure on his brain causing severe headaches daily

According to plaintiff's doctors, his cognitive impairments were permanent, required lifelong medication and required that he be supervised by a home health attendant during his waking hours (i.e., 12 hours a day, 7 days a a week) to avoid danger to himself and others if left alone.

In upholding the pain and suffering verdict, the appellate court relied on prior similar appeals court cases dealing with TBI, in particular:

• Paek v. City of New York - $4,300,000 pain and suffering verdict ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled, sought-after pattern maker for the premier fashion house of Calvin Klein. Ms. Paek had tripped and fallen over the remnant of a no-parking sign striking her head and sustaining a skull fracture and an epidural hematoma (a collection of blood below the skull but above the thick, leathery cover of the brain known as the dura). She required a craniotomy with evacuation of the hematoma and was left with severe cognitive dysfunction, depression and disabling headaches. The jury awarded Ms. Paek $9,000,000 for her future pain and suffering; however the trial judge found that to be excessive and ordered a reduction to $5,000,000 which the appeals court further reduced to $3,000,000.
• Roness v. Federal Express Corp. - $1,000,000 past pain and suffering verdict (but nothing at all for the future) affirmed for a 43 year old psychologist who was struck by defendant's truck and knocked to the ground sustaining TBI manifested by a subarachnoid hemorrhage, a subdural hematoma (a collection of blood inside the skull but also inside the dura) and a diffuse axonal injury (the tearing of nerve tissue in the brain). Plaintiff's doctors testified that she suffered post-accident brain deficits, including problems with short-term recall and executive function. The defense argued that plaintiff's injury was insignificant  and that she had recovered upon leaving the hospital two days after the accident. Prior to the accident, plaintiff had been admitted twice for alcohol rehabilitation and once to a psychiatric hospital for depression and thus the defense argued that if plaintiff had any future deficits they were attributable to her own pre-existing alcohol abuse and depression. The jury agreed and declined to award any future damages (and that finding was upheld on appeal).

Every year in the United States (according to the Centers for Disease Control) 1.4 million people sustain a TBI with 50,000 deaths, 235,000 hospital admissions and 1.1 million treated and released from a hospital emergency room. Nonetheless, TBI claims and lawsuits are unique in that the injuries and consequential brain damage are often not readily apparent and can manifest weeks, months or even years later.

Insurance companies defending the parties who cause TBI accidents routinely resist payment of the TBI victim's harms and losses. They claim, usually in a battle of expert medical witnesses, that the injuries could not have been caused by the accident or that there are no obvious or objective signs of brain injuries. Finally, as an alternative, the defense will often assert that if there are indeed injuries then they were pre-existing.

The foregoing claims and defenses are just what the defendants tried to prove in the Hernandez v. Vavra and Roness v. Federal Express Corp. cases discussed above. In those cases, they were rejected by the juries and the appeals courts. In other cases, the defenses are accepted by the juries and upheld on appeal.

We have discussed TBI cases before, here, and we will continue to report on TBI verdicts and appellate decisions as they are rendered. TBI cases are among the most fascinating and challenging cases that I handle in my trial practice and they are among the most difficult to evaluate for juries and judges. No doubt, we will be revisiting these issues and TBI cases in the near future.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The first thing many new mothers ask, even before seeing their newborns, is: "Are there 10 fingers (and toes)?" Of course, the answer is almost always "yes." Fingers can, though, be lost - amputated - later in life and when that happens it's usually due to an accident with a lawnmower or a power saw. And then the lawsuits follow.

As usual, we focus here on how pain and suffering is evaluated by juries and judges in New York injury cases. And as you might have guessed already, this post will discuss recent finger amputation cases. While that seems like a narrow topic, and one that might result in a small range of monetary recoveries, the opposite is the fact. That's because some cases involve amputations of just one (or just part of one) finger; while others involve two, three or more fingers. Then, there's the issue of which finger - we all know that thumbs, for example, are much more important to function than pinky fingers.

For a review of  hand and finger anatomy, see our post on hand injury pain and suffering verdicts here which includes diagrams of the phalanges (the finger bones).

The most recent case, Nisanov v. Black & Decker (U.S.), Inc. involved a 31 year old man who was using an old electric corded lawn mower. After mowing the lawn one day, Mr. Nisanov turned the mower upside down and began to remove grass clippings that had accumulated. Despite a warning on the machine of which he was aware, he did not unplug the mower and its blades restarted while he was removing the clippings. He suffered total amputations of his left hand's index, middle and right fingers, his left pinky was partially severed and his left thumb was lacerated. The jury found that Mr. Nisanov's pain and suffering damages totaled $2,000,000 ($600,000 past, $1,400,000 future) but it also found that Black & Decker was negligent in its design of the mower but it also found that Mr. Nisanov was 90% at fault for his own injury. Therefore, his net recovery was $200,000 (10% of the pain and suffering sum).

Do not stick your hand into a lawnmower or you may come out missing fingers:

Nisanov  made a post-trial motion challenging the 90% comparative negligence finding against him as well as the jury's $600,000 past pain and suffering verdict. He contended that $600,000 was too low for his pain and suffering for the five year period from the date of the accident to the date of the verdict. He did challenge the future pain and suffering figure.

On April 9, 2009, the trial judge issued a decision on the motion in the Nisanov case finding that the $600,000 past pain and suffering award was within the range of reasonableness and would not be modified. Also, the judge declined to disturb the jury's finding that plaintiff was 90% at fault. There will be no appeal.

In McKeon v. Sears, Roebuck & Co., a carpenter had four fingers of his dominant hand fully amputated and reattached. There, the jury verdict of $1,350,000 ($810,000 past, $540,000 future) was upheld by the appellate court. That decision was relied upon by the plaintiff in the Nisanov post-trial motion for the proposition that $600,000 was unreasonable for five years of pain and suffering. While the injuries appear to have been similar, the $210,000 difference between the two past pain and suffering awards was not significant enough for a trial judge or an appellate court to step in and modify upward. The courts will modify upward or downward only when the jury verdict is not in a range of figures that is reasonable. 

Here are the other important finger amputation cases insofar as pain and suffering damages is concerned:

•  Hudson v. Lansingburgh Central School District - $240,000 Rensselear County jury verdict for pain and suffering ($90,000 past, $150,000 future) affirmed for a 14 year old boy who cut off a portion of the middle finger of his nondominant hand while operating a jointer-planer in technology class. He underwent surgery to amputate the finger at the proximal interphalangeal joint, which separates the lower and upper halves of the finger. Plaintiff was found to be 35% at fault so the his actual recovery was reduced to $156,000.
• Bradshaw v. 845 U.N. Limited Partnership - $85,000 ($50,000 past, $35,000 future) upward modification by appellate court for pain and suffering involving the amputation of the distal portion of plaintiff's ring finger following a workplace accident in which a rebar caught on and partially severed the finger. The Manhattan jury had returned a verdict of $50,000 for past pain and suffering but nothing at all for for the future. The appeals court fond $35,000 should be added because the plaintiff would experience hypersensitivity in the remaining portion of the finger for the balance of her life.
• Leon v. J&M Peppe Realty Corp. - $850,000 pain and suffering verdict ($100,000 past, $750,000 future) affirmed by appeals court for a 26 year old carpenter who suffered a partial amputation of his three middle fingers while working on a circular saw like this:   
  The Bronx County jury had awarded plaintiff $100,000 for his four years of past pain and suffering plus $1,500,000 for 40 years in the future. The trial judge, though, reduced the future award to $750,000 and it's the trial judge's $850,000 total that was affirmed by the higher court.
• Huang v. Cherry Avenue Corp. (Index # 12201/05; Supreme Court, Queens County; 12/5/08) - $467,700 pain and suffering verdict ($200,000 past, $267,700 future) for a 42 year old mason in a construction site accident in which the tip of his left, nondominant hand's index finger was detached after it became caught between a hoist's hook and the hoisted material. Doctors were not able to reattach the detached portion of plaintiff's finger and they shaved a portion of the exposed bone and sewed skin into the open wound.

Inside Info: Plaintiff was willing to settle before trial for $325,000 but defendants' offer was only $75,000.

• James v. Queens Long Island Medical Group (Index # 17741/03; Supreme Court, Queens County; 3/8/07) - $950,000 pain and suffering verdict ($350,000 past, $600,000 future - 19 years) for a 7 year old girl who fell at school and sustained a chip fracture of the proximal phalanx of the ring finger of her left, nondominant hand. Doctors splinted and wrapped her hand but when she returned for follow-up medical treatment two weeks later her finger was necrotic and she had to undergo a surgical amputation of the distal phalanx followed by several months of physical therapy. The jury found that the doctors had committed medical malpractice. The defense contended that the $950,000 verdict was excessive and made a post-trial motion to it set aside . During the pendency of that motion, the parties settled the case for $700,000.
• Silverman v. State of New York  - $650,000 judge's decision for pain and suffering ($250,000 past, $400,000 future) for a 44 year old prison inmate injured in a carpentry class while working with a table saw that did not have a safety guard. Plaintiff sustained amputations of the digits of his thumb, index, middle and ring fingers of his left, nondominant hand. The award was reduced by one-half due to plaintiff's contributory negligence.

Finger amputation accidents are typically quite gruesome and can result in very significant pain and suffering verdicts that are sustainable. On the other hand (pun not intended), these cases often involve accidents in which there is a very significant amount of culpability on the plaintiff's part and then the award will be reduced accordingly. We will continue to follow new finger amputation cases as they arise.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On December 22, 1999, Lieutenant Nocenzu Cusumano, a New York City firefighter, reported to work at the city's recently renovated Staten Island training center. He slipped on stairway debris and fell 16 feet down to a concrete floor. He reached out for a handrail or banister but none was there as the renovation was illegal and violated the building code.

Like these stairs under construction, there was no handrail or banister:

Here are the injuries Lt. Cusumano sustained:

• crushed left hand and wrist with fractures of his hamate, capitate and lunate bones requiring reconstructive surgery with pins and wires
• left shoulder impingement requiring two surgeries (known as acromioplasty) to remove bone and scar tissue
• exacerbation of previously torn meniscus in his knee now requiring surgical repair

In the ensuing lawsuit, Cusumano v. City of New York, a Queens County jury awarded plaintiff pain and suffering damages in the sum of $1,700,000 ($1,200,000 past, $500,000 future). The past award was for the seven years from the date of the accident to the date of the verdict. The future award was based on plaintiff's life expectancy of 15 more years.

The defendant appealed, claiming that $1,700,000 was excessive and the appellate court agreed as to the past pain and suffering verdict. It held that $1,200,000 was too high and reduced it by $455,000 to $755,000. The $500,00 verdict for future pain and suffering was affirmed.

So, on what basis did the appeals court conclude that $455,000 should be deducted from the jury verdict for past pain and suffering? We have previously noted that appeals courts often provide no basis at all in their decisions reducing personal injury jury verdicts (for example, here and here). In this case, though, the judges purport to provide some basis for their decision.

The decision states that  " ... upon consideration of the nature and extent of the injuries sustained by the plaintiff [the court did recite the specific injuries in its decision], the jury's finding that the plaintiff sustained damages in the sum of $1,200,000 for past pain and suffering deviated materially from what would be reasonable compensation to the extent indicated herein [i.e., the past pain and suffering verdict was $455,000 too high]." That's the usual standard statutory language of CPLR 5501 inserted into almost every appeals court decision wherein damages are reduced (or increased). That provides no guidance or justification.

The judges then go on to cite six prior cases as support for their decision. Let's take a look at those cases and see if they do.

1. Deshommes v. Hussain - 40 year old taxi driver in car accident sustained a herniated disc (no surgery). The jury verdict of $1,200,000 ($300,000 past, $900,000 future) was reduced on appeal to $700,000 ($200,000 past, $500,000 future).
2. Pitera v. Winzer - a 37 year old man in a car accident sustained a torn meniscus requiring surgery (as well as bulging cervical discs and a herniated lumbar disc none of which required surgery). The jury's $1,100,000 verdict ($450,000 past, $650,000 future) was reduced on appeal to $550,000 ($200,000 past, $350,000 future).
3. Jansen v. Raimondo & Son Constr. Corp. - a 36 year old firefighter fell injuring both shoulders requiring surgery on each. The jury verdict of $730,000 for future pain and suffering was reduced to $400,000. The $350,000 for past pain and suffering was affirmed and thus the total affirmed was $750,000.
4. Purcell v. Axelsen - a motorcyclist sustained fractures of her pelvis (no surgery),  wrist (surgery) and a lumbar vertebrae (no surgery). The jury verdict of a mere $10,000 (past only) was increased on appeal to $250,000 ($130,000 past, $120,000 future). There were significant credibility issues at trial regarding both plaintiff and her treating doctor that resulted in the low jury verdict.
5. Frascarelli v. Port Auth. of N.Y. & N.J. - a 35 year old who was assaulted sustained a torn meniscus requiring arthroscopic surgery. Plaintiff was out of work for only six weeks and required no more surgery.  The jury verdict of $700,000 ($300,000 past, $400,000 future) was reduced on appeal to $450,000 ($225,000 past, $225,000 future).
6. Perez v. Farrell Lines - a 58 year old fell and sustained a traumatic brain injury and a shoulder injury. The jury verdict of $650,000 ($400,000 past, $250,000 future) was affirmed.

We have reviewed the six cited cases in detail and urge readers to do so as well. In many respects, they deal with injuries different from those ruled on in Cusumano v. City of New York. We do not believe they support the decision to deduct nearly half a million dollars from Lt. Cusumano.  The jury that heard this case listened to each of the witnesses (including of course the plaintiff and his treating doctor), assessed the credibility of each and every witness and deliberated carefully among themselves before rendering their verdict. That's how our legal system works in New York injury cases.

An appeals court may disturb the jury's verdict only when it finds the amount deviates materially from reasonable compensation (CPLR 5501). To make that finding, the appeals court must have a basis. It cannot pull numbers out of thin air. It should explain its reasoning. Merely citing cases, some of which involve similar injuries and some of which involve injuries not at all relevant is not right. It is neither instructive to the bar and the public nor is it even academically proper.

More and instructive reasoning must be given so that the bar and the public can be guided by the upper and lower limits appeals courts are likely to set in New York injury cases. When that's done, there will be a reduction in trials as more cases are settled because everyone knows the limits.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Bronx and Kings Counties are among the few venues that New York personal injury attorneys (those representing plaintiffs, that is) will tell you are favorable counties for much larger than average-sized pain and suffering verdicts. Westchester, Rockland, Nassau and many upstate counties are among the worst (i.e., the juries are stingy in their verdict amounts). These "rules of thumb" do not always hold true, of course. And not so at all in a recent car accident case.

In Shifrel v. Singh, a 49 year old man was stopped in traffic on July 22, 2004 on the Cross Bronx Expressway when he was hit in the rear by defendant's car. He complained of left shoulder pain at the hospital that day, followed up with an orthopedic surgeon, had an MRI that showed a torn rotator cuff and eventually had surgery to repair the tear. Following seven weeks of physical therapy, Mr. Shifrel tried to resume his pre-accident way of life which had included sports such as softball and basketball and riding a motorcycle. He could not and his doctor testified that his restricted range of motion was permanent.

Here's a comparison of normal and torn rotator cuffs:

Although the defense had an opportunity to examine the plaintiff with its own doctor before trial, that doctor was not called to testify at the trial and the plaintiff was given a missing witness charge. That's where the judge tells the jury that, when a witness under the control of one of the parties is not called to testify when it's expected he would have been, the jury may draw negative inferences from that failure. In other words, the judge tells the jury that it will be permitted to conclude the defense was trying to hide testimony that may have been favorable to the other side. Here, the defense doctor probably wold have agreed with the plaintiff's doctor's testimony.

Usually the missing witness charge when the witness is a defense doctor will be very damaging to the defense. It allows the jury to "buy" everything the plaintiff's doctor says as to causation, permanence and severity and it suggests to the jury that the defense doctor would have said the same thing.

In this case, the missing witness charge meant nothing. It was no help to the plaintiff. The jury returned a verdict of $5,000 for all of plaintiff's pain and suffering! And that sum was just for past pain and suffering (3 1/2 years). The jury's verdict for future pain and suffering was -0-.

Naturally, the plaintiff appealed. The appellate court held that indeed the past pain and suffering sum was too low - it found $50,000 was a reasonable figure for past pain and suffering. Less than what plaintiff's counsel urged but at least the appeals judges saw the impropriety of only $5,000 for past pain and suffering.

As to the jury's failure to award any amount at all for future pain and suffering, though, the appeals court affirmed the verdict. It found that plaintiff was not entitled to any award for future pain and suffering because of the "lack of permanency of plaintiff's injuries."

The $50,000 ultimate award in this case is way out of line with other rotator cuff tear injury cases in New York. For example, see our reports here and here. As you can see, when surgery occurs after a rotator cuff injury, in relatively routine non-complicated cases (medically),  the sustained verdicts in New York injury cases for middle-aged persons appear to fall in the $150,000 to $300,000 range.

Inside Information:

• as this was a car accident case, the nuances of Insurance Law Section 5102 applied (see Eric Turkewitz's terrific expose of this statute) and the jury found that plaintiff had met the statutory threshold because he suffered an injury of a non-permanent nature that prevented him from preforming his usual and customary activities for at least 90 of the 180 days after the accident
• the appeals court concluded that the jury's finding that the so-called 90/180 standard had been met meant that the jury specifically concluded plaintiff's injuries were non-permanent
• even if the jury did make a finding of non-permanence (a) the plaintiff's doctor testified - unchallenged (remember the missing witness charge) - that plaintiff's injuries were indeed permanent and (b) non-permanence does not preclude any and all pain and suffering into the future; it would allow for an award of 10 years of pain, 20, one, whatever

Really Inside Information:

• the defense offered $65,000 to settle just before trial (acceptable to plaintiff's counsel but rejected by the plaintiff himself)
• after the verdict, plaintiff's counsel would have settled for $50,000 (not offered)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Parents are always telling their kids before they go off to school: study hard, obey the teachers and behave. Good advice, of course. But what happens when the little darlings do misbehave? When they fight with other schoolkids? And serious injuries result? Why, the parents "lawyer up" and sue the school district, naturally! But these cases are losers and the schools are wining dismissals repeatedly.

In the latest of these cases, MacNiven v. East Hampton Union Free School District, a fight broke out among high school track team members. Standing 20 feet away was another team member, soon to be plaintiff Cory MacNiven. Instead of going for help or just staying out of it, young Cory "jumped in" to the fight and kicked a teammate in the head. Then, surprise, Cory was punched in the face and injured.

Would you run towards a fight, or away from it?

In his ensuing lawsuit (technically, the parents' lawsuit because under New York's CPLR Article 12, when an injured party is under the age of 18 years, it's the parents who sue for him), plaintiff claimed that the school district was negligent in failing to properly supervise the team during practice. The appeals court disagreed and dismissed the case this week repeating the oft cited rule that

liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight.

The same voluntary participation in a fight on school grounds bars a lawsuit against the school district rule has been applied for many years:

• Williams v. City (2007) - inadequate supervision claim dismissed in a fight between elementary school students in an auditorium because of voluntary participation in the fight by plaintiff
• Danna v. Sewanhaka Central High School District (1997) - school could not have anticipated fight in music class between 12 year olds, especially where plaintiff voluntarily entered the fight and struck the first blow (a kick in the shin)
• Ruggiero v. Board of Education of the City of Jamestown (1969) - suit by 17 year old high school senior for injuries from a fight over unassigned locker dismissed because plaintiff voluntarily squared off with another student and chose to expose himself to the dangers of a fistfight.

If you square up, you lose your case against the school.

 You'd think that parents of kids who start fights at school (or voluntarily jump into them) would be reluctant to start a lawsuit. Maybe it's bad advice from lawyers who don't know the state of the law, who haven't read up on these types of cases. Now, I know that facts unknown at the beginning can develop, change or surface that may account for why some of these dumb cases were started. But when it's perfectly clear that a student started a fight at school, or on his own decided to join one, then the New York courts will routinely dismiss the lawsuit.

Many argue that there are too many lawsuits like the ones discussed above, they are frivolous and there should as a result be a loser pays system. That's the type of system in effect in England and other countries where the loser of these types of lawsuits is required to pay the legal fees of the wining party.

The push for a loser pays system has been ongoing for some time now. An important study in favor was released recently by The Manhattan Institute's Marie Gryphon, supported by many including, of course, her think tank colleague  Walter Olson of Overlawyered fame.   Standing opposed to the loser pays system are trial lawyers representing plaintiffs, for example Atlanta attorney Ken Shigley here and Boston attorney Robert Feinberg here. Trial lawyer organizations such as American Association for Justice (formerly known as American Trial Lawyers Association) and New York State Trial Lawyers Association argue that there is no need for such a system as do blogs such as Tort Deform.

The battle lines are being drawn and there's a great deal of money being spent pro and con. The loser pays system may become the law in the U.S.

• Would a loser pays system be beneficial for all concerned?
•  What form would it take?
• Could it be successfully challenged as unconstitutional?

These issues will continue to be discussed and even fought over as the push for loser pays intensifies.

• Email This
• Print
• Comments
• Trackbacks
• Share Link