Neck and Back Injuries Result in $1,800,000 Pain and Suffering Award Approved by Appellate Court, Despite Lack of Surgery
On July 28, 2005, James Coleman was working as a subway track worker repairing tracks for the New York City Transit Authority (the TA). He was on a hydraulic lift platform that collapsed causing him to fall 25 feet to the ground below.
Workers on a hydraulic lift:
Coleman sued the TA for the serious injuries he sustained to his neck and back, including multiple bulging and herniated discs.
New York's Labor Law Section 240(1) generally imposes absolute liability upon premises owners when a worker engaged in repair work is injured in a height related fall due to inadequate safety devices. Accordingly, summary judgment was granted to Coleman in 2007 and his case proceeded to a damages only trial in 2008.
On November 7, 2008, a Bronx County jury awarded Coleman pain and suffering damages in the sum of $2,100,000 ($600,000 past - 3 years, $1,500,000 future - 20 years). The TA appealed, successfully arguing that the award was excessive.
MRI reports showed that Coleman sustained the following spinal disc injuries:
- herniated disc at C4-5,
- bulging annulus fibrosis at C5-6
- herniated disc at L5-S1.
The defense doctors and attorney argued that plaintiff's injuries were minor and any significant complaints of pain or disability he had were due only to degenerative changes in his spine.
EMG testing and nerve conduction studies, though, showed nerve injuries - radiculopathy at C5 and C7.
Plaintiff testified as to his current pain and limitations:
- constant pain which radiates down his right leg
- still takes narcotic medication
- gets steroid injections for his back pain
- cannot work
- cannot engage in sports he enjoyed such as bowling and basketball
- cannot carry shopping bags
Coleman never had any surgery for his injuries in this case but his doctor recommended that he undergo neck and back surgery - either a discectomy or laminectomy with fusion - if his symptoms continued unabated by conservative treatment.
In Coleman v. City of New York (1st Dept. 2011), the future pain and suffering award was reduced by $300,000. The total pain and suffering award now stands at $1,800,000 ($600,000 past, $1,200,000 future).
The only case on damages cited by the appellate court was Urbina v. 26 Court Street Assoc., LLC (1st Dept. 2007), a knee injury case that we discussed here. That case is not particularly relevant inasmuch as it ordered a reduction of the jury's pain and suffering award in the sum of $3,500,000 to $2,200,000 for a 31 year old man who sustained a severely fractured patella and a torn meniscus that required three surgeries.
Prior cases on damages that are relevant (i.e., that dealt with herniated disc injuries without surgical procedures as of trial) but were not even mentioned by the appellate court include:
- Lauro v. City of New York (1st Dept. 2009) - $810,000 affirmed for 49 year old with herniated discs at L4-5 and L5-S1
- Spetter v. Alliance Towing Corp. (1st Dept. 2009) - $230,000 affirmed for herniated disc at C6-7
- Sanabia v. 718 West 178th Street, LLC (1st Dept. 2008) - $300,000 (reduced from $400,000) for 57 year old with herniated discs at C3-4 through C6-7
- Browne v. City of New York (2d Dept. 2009) - $625,000 (reduced from $750,000) for 33 year old with bulging discs at C3-4 and C4-5.
- Brown v. City of New York (2d Dept. 2008) - $600,000 affirmed for 60 year old with mechanical back pain due to pulp protruding into his spinal canal
- Deshommes v. Hussain (2d Dept. 2008) - $700,000 (reduced from $1,200,000) for 42 year old with herniated disc at L5-S1 with nerve root compression and several bulges
Inside Information:
- The defense doctor, Robert Orlandi, M.D., an orthopedic surgeon, opined that Coleman hadn't even sustained a herniated cervical disc at all, just a sprained neck and degenerated discs predating the accident by many years.He was argumentative, often laughed derisively and made it clear he wasn't going to agree with questions posed by plaintiff's counsel, even before they were asked. The doctor was admonished by the trial judge repeatedly and defense counsel conceded that Dr. Orlandi was a "rather obstreperous witness" who made "wild and unsubstantiated charges" from the witness stand against plaintiff's counsel.
- The jury award for future lost earnings in the sum of $1,500,000 was thrown out by the appellate court because Coleman failed to prove with reasonable certainty that he'd be unable to work and earn at all. The defense conceded that Coleman could not return to heavy labor (he was earning about $45,000 a year with the TA) but pointed out that plaintiff himself never claimed he was completely unable to work and testified he'd tried to work as a mechanic in a motorcycle shop (too strenuous) and inquired about other jobs he thought he could do (no offers). Plaintiff's treating pain management doctor merely testified that he would "venture to say" that plaintiff couldn't go back to work. He was unaware of plaintiff's vocational abilities or education.
