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

On August 22, 1998 Enrique Isaac was driving on Linden Boulevard near its intersection at Ashford Street in Brooklyn. He collided with a left turning city bus and ended up with several substantial orthopedic injuries.

At trial, the then 53 year old plaintiff was awarded pain and suffering damages in the sum of $2,250,000 ($1,500,000 past - 9 years, $750,000 future - 20 years).

The defense claimed that the award was excessive and the appellate court has agreed.

In Isaac v. New York City Transit Authority (2d Dept. 2011), the award was reduced by $450,000  as follows:

• past pain and suffering reduced from $1,500,000 to $1,200,000
• future pain and suffering reduced from $750,000 to $600,000

The court's decision omits any reference at all to the nature of plaintiff's injuries. We have uncovered the facts.

From the scene of the accident, plaintiff was taken by ambulance to a local hospital where he was admitted for five days and then transferred to another hospital where he was admitted for an additional two weeks. Plaintiff underwent three open reduction internal fixation (ORIF) surgeries in which metal plates and screws were inserted:

1. Hip: acetabular hip socket fractures  (wire, plates and screws to fix)                                                
2. Shoulder: proximal humerus fracture reduced by the use of wires and screws                           
3. Hand: fractures of the base of the 2nd, 3rd and 4th metacarpals (plate and screws to fix)

Plaintiff argued on appeal that the jury's award was reasonable and not at all excessive, in view of the foregoing as well as the facts that he:

• was confined to a wheelchair for three months and to his home for eight months
• had continuing pain in his legs with cramps awakening him 2-3 nights a week
• could no longer enjoy softball, soccer and basketball

The defense countered arguing that Mr. Isaac made a good recovery, was left with only a moderate disability of his hip and that he:

• stopped taking pain medication six months after the accident
• returned to work (as a hospital housekeeper) 11 months after the accident
• stopped all medical treatment for his injuries six months after the accident

The appellate court decision approvingly cites five prior cases:

1. Conley v. City of New York (2d Dept. 2007) - $200,000 (increased from $14,000) for a 74 year old woman with an intra-articular wrist fracture requiring surgery
2. Biejanov v. Guttman (2d Dept. 2006) -  $600,000 (reduced from $1,050,000) for a four year old boy with fractures of his thumb and index fingers requiring surgery, leaving him with ulnar nerve damage
3. Muff v. Lallave Transp. (3d Dept. 2004) -  $800,000 for a 36 year old man with bilateral wrist fractures, crushed pinky finger and fractured shoulder, requiring six surgeries (including a wrist fusion)
4. Jansen v. Raimondo & Son Constr. Corp. (2d Dept. 2002) - $750,000 (reduced from $1,030,000) for a 36 year old man with severe bilateral shoulder injuries (subluxation and dislocation) requiring two surgeries, fractures of his humerus and clavicle and bilateral carpal tunnel syndrome
5. Dooknah v. Thompson (2d Dept. 2000) - $200,000 (increased from $50,000) for a 61 year old man with nondisplaced fractures of his acetabulum and pubic ramus (might need hip replacement surgery in the future)

The court did not address a case that plaintiff cited that appears to be relevant - Lukas v. Trump (2d Dept. 2001). Mr. Lukas had been afflicted with polio since the age of 17 and could walk only with the assistance of crutches and braces. At the age of 60, he fell due to defendant's negligence and sustained a fractured hip that required surgery to insert screws and a metal plate into that portion of his femur that met his pelvic bone. As a result, he was confined to a wheelchair and could no longer walk the way he used to (with crutches and braces). The jury's pain and suffering award of $1,300,000 was affirmed on appeal.

Inside Information:

• Plaintiff had consumed a cup of Jamaican rum a half hour before the accident. While his attorney successfully argued that the hospital blood alcohol results should not be admitted in evidence, the defense was able to argue that it was obvious Mr. Isaac had been drinking alcohol.
• Fault for the crash was apportioned equally with the result being that plaintiff collects one-half of the damages assessed.

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

On August 30, 2001 Kenzie Godfrey was an honors physics student about to begin her senior year at Hunter College in Manhattan. She was headed towards a NASA research position and then a PhD upon graduation. Her dreams turned into nightmares that day when the 21 year old was a rear seat passenger in a taxicab that was involved in an accident with another vehicle at 22nd Street and Third Avenue.

Kenzie was thrown forward and her head hit the plexiglass partition behind the cab driver. In pain with a lump on the side of her head and a swollen eye, she was taken by ambulance to the local hospital where she was treated and released. Within the ensuing week, though, Kenzie was disoriented and dizzy and her head pain was debilitating.

On September 6th, Kenzie sought treatment at the emergency room at which time a CAT scan was performed showing a temporal lobe contusion and a subdural hematoma.

Kenzie's injuries were thought to be minimal. Due to the hematoma, though, she was admitted for observation for two days and then discharged.

Unfortunately, Kenzie got worse. Much worse. Her symptoms cascaded with headaches, fatigue, problems concentrating, depression and anxiety. She finished one more semester of college but dropped out because she was unable to read anymore. She often remains inside her apartment, in the dark, due to extreme light sensitivity. Despite trying, she's been unable to work. She's taking extensive medication and participates in a traumatic brain injury (TBI) program that provides her with home care assistance. Her doctors testified she will get worse and worse and requires full time home health aid.

In her ensuing lawsuit against the drivers and owners of the cars involved in the crash, Kenzei's TBI was so bad that the jurors awarded nearly $11,000,00 in damages, as follows:

1. pain and suffering - $3,592,000 ($260,000 past - 7 years, $3,332,000 future - 48 years)
2. past and future lost earnings and benefits - about $1,200,000
3. future medical expenses - about $6,000,000

In Godfrey v. G.E. Capital Auto Lease, Inc. (1st Dept. 2011), the appellate court has addressed several liability and damages issues raised by the parties and ruled as follows:

• future pain and suffering damages should be reduced by $832,000 (from $3,332,000 to $2,500,000)
• there was sufficient evidence to sustain the jury's awards for medical expenses and loss of earnings and benefits
• the plaintiff's failure to use a seatbelt must be addressed in a new trial to determine the amount by which her damages should be reduced (the defense argued that her head injuries would not have been so severe had she been wearing a seatbelt)

The appellate court ordered a substantial reduction ($832,000) of the pain and suffering damages after setting out several details of plaintiff's brain injuries; however, there was no discussion at all as to the court's analysis of prior cases that were briefed by the parties. Here, then, are some of the cases:

• Paek v. City of New York (1st Dept. 2006) - $4,300,000 ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled pattern maker  who sustained a skull fracture and epidural hematoma resulting in severe cognitive dysfunction, depression and disabling headaches.
• Garrison v. Lapine (3d Dept. 2010) - $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years) [discussed previously, here] for a 44 year old housewife with post-concussive syndrome and axonal injuries manifesting in severely erratic behavior and disabilities.
• Popolizio v. County of Schenectady (3d Dept. 2009) - $2,100,000 ($350,000 past - 5 1/2 years, $1,750,000 future - 23 years) [discussed previously, here] for a 56 year old man who sustained TBI manifesting in cognitive function bordering on mental retardation and depression.

Inside Information:

• Perhaps the biggest issue in the case was buried in the middle of the court's opinion - ownership of the jeep. Under New York's Vehicle and Traffic Law Section 388, the owner of a vehicle is vicariously liable for the damages caused by the negligence of the vehicle driver. In 1995, Larissa Sgarlato leased the jeep from G.E. Capital Auto Lease, Inc. (GE)  and at the end of the four year term she wanted to buy the car. A bill of sale was signed as was a retail installment agreement setting forth the terms of the purchase agreement and in 1999 GE delivered to Ms. Sgarlato an executed certificate of title; however, GE was still listed as the owner on the date of the accident. Both the jury and the appellate court found, though, that the parties intended to transfer ownership from GE to Sgarlato and that when the accident occurred GE was no longer an owner.
• The ownership issue was so big because, as I hear it, there was only $100,000 of liability insurance covering the jeep. Without GE's "deep pockets," the practical limit of any recovery is the amount of insurance coverage.
• The defense did not call any physicians to testify as to plaintiff's TBI.

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

Jorge Angamarca was 32 years old on October 23, 2003, working as a carpenter on the roof of a residential townhouse under construction in Brooklyn. He fell two stories through an improperly covered skylight hole and sustained catastrophic injuries.

Under New York's Labor Law Section 240(1), Angamarca was granted summary judgment as to liability against the owner of the building and its contractors because he had not been provided with any safety device or equipment, as required by the statute.

The parties could not agree on an appropriate damages settlement so the case went to a damages only trial.

On April 8, 2009, the Kings County jury awarded plaintiff $20,000,000 broken down as follows:

• Past pain and suffering - $100,000 (6 years)
• Future pain and suffering - $1,000,000 (40 years)
• Past loss of earnings - $74,013 (6 years)
• Future loss of earnings - $573,131 (23 years)
• Past medical expenses - $1,531,172 (6 years)
• Future medical expenses - $16,721,684 (40 years)

The parties each appealed the awards with plaintiff arguing that the pain and suffering awards were unreasonably low and the defense arguing that the future medical expense award was too high.

In Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011), the appellate court ordered a $3,900,000 increase in the pain and suffering awards as follows:

• past pain and suffering increased from $100,000 to $1,500,000
• future pain and suffering increased from $1,000,000 to $3,500,000

Here are some of the injury details:

• Skull fractures with intracranial subarachnoid and subdural hemorrhaging that required several surgeries including a temporal craniectomy, resection of lobes and placement of a cranioplasty
• Traumatic brain injury (TBI) leaving plaintiff with cognitive deficits affecting his speech, memory and emotions as well as left visual field neglect and spasticity of his left-sided extremities (arm and leg).
• Fractures of his spine at T7-8 requiring T6-9 anterior spinal fusion with structural humeral allograft, autograft and screw plate construct
• Displaced Colles fracture, right wrist (with malunion)
• Midshaft tibia and fibula fractures, right leg

Plaintiff was unconscious at the scene, remained in a coma for three months and was confined to the hospital for 45 days and a rehabilitation facility for 13 months before he started living in a group home for TBI patients.

By the time of trial, plaintiff was ambulatory but only with a severely awkward and restricted gait. Through expert testimony, he also claimed he was permanently incapable of taking care of himself and cannot live independently.

Inside Information:

• The defense called only one medical witness to testify - neuropsychologist Thomas Boland, Ph.D. Plaintiff called several experts including an orthopedic surgeon (Ira Esformes, M.D.), a neuropsychologist (Dustin Gordon, Ph.D.), a neurosurgeon (Douglas Cohen, M.d.), a vocational rehabilitation counselor (Ed Provder, Ph.D) and an economist (Frank Tinari, Ph.D.).
• The defense argued in summation that the $16,000,000 for future medical expenses suggested by plaintiff's experts was outrageously high and the product of incredible testimony, calculations and growth rates.
• Plaintiff was not a U.S. citizen; he'd come here from Ecuador two years before the accident and was undocumented. The defense was precluded from raising plaintiff's immigration status under the recent ruling in Balbuena v. IDR Realty LLC (Court of Appeals 2006) but the defense nonetheless argued, unsuccessfully, that the jury should be allowed to consider whether plaintiff intended to return to Ecuador where medical care is socialized and his future medical costs would be nowhere near the $16,000,000 awarded by the jury for lifetime assisted living.
•  Plaintiff's counsel asked the jury to award $16,000,000 for pain and suffering whereas defense counsel suggested an award of $1,500,000.

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