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

Luis Ramos was sitting in a parked car in the parking lane, on Claremont Parkway in the Bronx on September 24, 2001. He had been waiting for his son when he decided to exit the car. After opening the driver side door about six inches, his car was struck by a passing city bus.

Ramos was sitting in a 1987 Ford Thunderbird:

Ramos was thrown to the other side of the car and claimed he hurt his back.

Ultimately, Ramos sued the transit authority and on May 21, 2009, a jury found the bus driver 100% at fault for the accident and awarded plaintiff pain and suffering damages in the sum of $595,000 ($270,000 past - 8 1/2 years, $325,000 future - 9 years). Both the liability finding and the damages award were upheld on appeal last week in Ramos v. New York City Transit Authority (1st Dept. 2011).

As indicated in the decision, plaintiff was 59 years old at the time and he sustained multiple herniated discs in his lumbar spine that required a combined discectomy, laminectomy and spinal fusion four years later.

In a laminectomy, the surgeon removes the bony back wall of the affected spine, called the lamina and then in a discectomy, the surgeon removes the disc itself:

 And here's what the spine looks like after the lumbar fusion surgery with the insertion of a metal plate and screws:

In the appeal, the defense argued, unsuccessfully, that (a) the liability verdict should be reversed because plaintiff should have seen the bus before he opened his car door into traffic and (b) in the alternative, the jury should have apportioned some of the fault to plaintiff because they found he was negligent (but that his negligence was not a proximate cause of the accident).

As to damages, the defense argued that the jury award was excessive in view of plaintiff's preexisting conditions:

• degenerative disc disease (when aging discs become stiff and dry out)
• scoliosis (a sideways curvature of the spine)
• syrinx (a cavity in the spinal cord formed by cerebrospinal fluid)

Plaintiff successfully countered each of the defense arguments as to damages through the testimony of his expert neurologist who stated that:

• both the scoliosis and the syrinx were in plaintiff's cervical spine and the likelihood that either of these conditions affected plaintiff's lumbar spine was extremely remote
• plaintiff showed no symptoms of preexisting low back pain problems and the fact that he had been diagnosed with degenerative disc disease two years before ths accident was of no consequence because there was no evidence (such as an MRI) that Ramos had a herniated disc before the accident
  

Inside Information:

• Ramos refused medical treatment at the scene, reported to work that night as a doorman in an apartment building, continued to work for  a few more days and did not seek any medical attention at all until three days later when he presented to a neighborhood clinic complaining of significant lower back pain.
• There were only three witnesses at trial - plaintiff, a police officer and plaintiff's medical expert, neurologist Ringa Krishna, M.D. The defense produced neither its bus driver nor any medical expert to rebut plaintiff's claims and proof as to causation, pain, disability and permanency.
• Unfortunately, the surgery failed and plaintiff's condition got worse. He was diagnosed with chronic nerve damage and arthritis in his spine causing permanent low back pain and making it difficult to walk. Ramos never returned to work.
• Plaintiff was granted a missing witness charge as to the defense physician who was engaged before trial but did not testify at the trial - the jury was told that it may infer that the defense doctor would not have supported the defendant's position with respect to the medical issues and would not contradict the plaintiff's medical evidence.

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

On October 3, 2003, Clyde Davison stumbled and fell from the subway platform onto the tracks at Franklin Avenue in Brooklyn. Luckily for him, there was no train in the area and a police officer responded quickly finding the 50 year old man face down near the third rail apparently intoxicated.

Within a few minutes, before Davison could be moved, a train entered the station at about 20 miles per hour and its contact shoe clipped Davison severely injuring him causing fractures of his clavicle and scapula.

Here is a typical clavicle fracture:.

In the ensuing lawsuit, the transit authority was found 70% at fault for plaintiff's injuries and Davison was charged with 30% of the fault.

The trial judge disagreed and dismissed the case reasoning that plaintiff was the sole proximate cause of his state of intoxication and that he unreasonably and unforeseeably disregarded the police officer's instructions to get up and away from the tracks. On appeal, though, in Davison v.  New York City Transit Authority (2d Dept. 2009), the 70/30 split was reinstated.

Finally, in 2010, a damages only trial was held.

The jury heard testimony from plaintiff and doctors for both sides describing the nature of Davison's clavicle and scapula injuries and their effect on his life. They rendered a pain and suffering verdict in the sum of $216,000 ($150,000 past - 6 years, $66,000 future - 22 years).

The plaintiff appealed, this time claiming that the jury's award was inadequate and should be increased.

In Davison v. New York City Transit Authority (2d Dept. 2011), the appellate court has now agreed with plaintiff again and ordered an increase in his award from $216,000 to $450,000 ($275,000 past, $175,000 future).

The net award to plaintiff, in view of his 30% comparative negligence, is $315,000.

The decision merely mentioned that plaintiff sustained fractures of his clavicle and scapula. Here are the details of Davison's injuries:

• comminuted fracture of the left clavicle requiring surgery to repair with a steel plate and screws
• comminuted fracture of the left scapula requiring  surgery to repair with two steel plates and screws
• 27 day hospitalization
• outpatient hospital physical therapy for two months
• severely restricted movement and pain in the left arm with inability to perform normal household chores

X-Ray showing the scapula after surgery like the one underwent by Mr. Davison:

The defense argued that the jury's award was adequate because plaintiff's fractures had healed, he was not suffering from any significant disability, he had no medical treatment for his injuries since August 2004 and any pain he still suffered from at trial was from prior unrelated injuries (of which there were many, including eight motor vehicle accidents and one that required neck surgery).

We've discussed clavicle and scapula injuries before, here and here.

Inside Information:

• Defendant had offered $250,000 to settle the case before beginning the trial (a pretty good approximation of how the case would end up).
• At the damages trial, plaintiff was cross-examined concerning his alcohol use (he admitted he had a history of chronic alcoholism) and his drug use, matters objected to at trial and on appeal but ultimately not addressed by the appellate court.

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

Natalie Barnhard was an ambitious, energetic, bright 24 year old who'd gone to school to become a physical therapy assistant. On October 22, 2004, three months after  landing a job at an orthopedic physical therapy practice in Buffalo, Natalie had a catastrophic accident at work when a 600 pound leg extension machine tipped over and fell on top of her, crushing her neck and rendering Natalie a C-5 quadriplegic.

Here is a Cybex leg extension machine, similar to the one that fell on Natalie Barnhard:

The machine was not bolted to the floor and, while working with a patient, the machine fell on her when Natalie was standing on its 400 pound weight-stack side with her hands pulling on the top to stretch her arms and shoulder.

Natalie sued Cybex claiming it was liable for her injuries because (a) the machine was defectively designed (dangerously allowing it to tip with only 40 pounds of horizontal force) and (b) there was no warning of the machine's unstable condition.

Cybex argued that it was not liable because (a) Natalie's employer, Amherst Orthopedic Physical Therapy, P.C., should have anchored the machine to the floor and (b) it was unforeseeable that Natalie would misuse the machine and pull it over onto herself.

On December 7, 2010, after an eight week trial, an Erie County jury ruled that Cybex, Amherst Orthopedic and Natalie all shared some responsibility for the accident  (Cybex 75%, Amherst Orthopedic 20%, Natalie 5%).

The jury then awarded Natalie pain and suffering damages in the sum of $33,000,000 ($8,000,000 past - 6 years, $25,000,000 future - 42 years).

On appeal, in Barnhard v. Cybex Intl., Inc. (4th Dept. 2011), the liability findings have been affirmed but Natalie's pain and suffering award was reduced by $21,000,000 and now stands at $12,000,000 ($3,000,000 past, $9,000,000 future).

Natalie's quadriplegia has left her with minimal-to-no function of her nerves below the level of the injury meaning that she:

• will forever be unable to walk and is wheelchair bound
• has no functional use of her hands
• is incontinent and must rely on others to do catheterizations, bowel movements and all other personal hygiene
• does not have full use of her diaphragm, which interferes with her ability to sneeze or cough and leaves her with trouble even clearing her throat
• is unable to feed herself
• is in constant neck pain

Additionally, Natalie suffers from extreme emotional and psychological pain and depression arising out of decreased feelings of self-worth, agitation and frustration in her inability to function on her own and the loss of life's pleasures (including the break-up of her relationship with a young man she planned to marry and the inability to enjoy sexual relations).

In concluding that $12,000,000 was the maximum permissible award for pain and suffering in this case, the judges relied upon two cases:

1. Bissell v. Town of Amherst (4th Dept. 2008) - $10,000,000 ($3,000,000 past - 5 years, $7,000,000 future - 33 years) for a 39 year old man with lumbar fractures resulting in paraplegia, with motor function above his knees and the use of his upper body and hands but with loss of bladder, bowel and sexual functions
2. Allison v. Erie County Indus. Dev. Agency (4th Dept. 2006) - $5,000,000 ($1,000,000 past - 4 years, $4,000,000 future - 41 years) for a 31 year old man with a burst fracture at T-12 and lumbar fractures who required four level spinal fusion surgery and was left with bladder and sexual dysfunction and severe debilitating back pain but could do light household work and use a treadmill for 25 minutes

Curiously, the decision in Barnard v. Cybex Intl., Inc. omits any reference to Oakes v. Patel (4th Dept. 2011), a case decided by the same court only a few months ago, There, the court sustained a pain and suffering award of $9,600,000 ($5,600,000 past, $4,000,000 future - 18 years) for a 52 year old man with left sided paralysis and significant brain injuries who requires assistance with most personal needs.

Several other cases appear to be relevant in comparing pain and suffering awards that have been sustained by appellate courts in New York for injuries similar in type or severity to Natalie Barnhard's, including:

• Miraglia v. H&L Holding Corp. (1st Dept. 2007) - $10,000,000 ($5,000,000 past - 3 1/2 years, $5,000,000 future - 35 years) for a 45 year old man whose torso was impaled on a steel bar that severed his spinal cord and left him with complete paralysis and neurological dysfunction at and below the L-2 level
• Ruby v. Budget Rent-A-Car Corp. (1st Dept. 2005) - $10,000,000 ($2,000,000 past - 3 years, $8,000,000 future - 45 years) for a 25 year old man who suffered from a T-6 spinal cord injury and complete paraplegia
• Schifelbine v. Foster Wheeler Corp. (4th Dept. 2004) - $6,500,000 ($1,000,000 past - 3 years, $5,500,000 future - 38 years) for a 35 year old man with a fractured skull rendering him a quadriplegic and requiring an above the knee amputation

Inside Information:

• A press release was issued last week in which Cybex indicated it will seek permission to appeal to the state's highest court, the Court of Appeals.
• Over defendant's objection, testimony (from the patient Natalie was working with) that plaintiff was "monkeying around" on the machine prior to the accident was precluded as an impermissible opinion of a lay witness. Cybex argued that the accident could not have occurred without plaintiff's exertion of far more force on the top of the machine than she testified to (i.e., that she was merely leaning back while holding the top of the machine). The defense argued that the "monkeying around" testimony would have provided a relevant and important contradistinction to plaintiff's testimony for the jury to weigh.
• Plaintiff's award now stands at approximately $44,000,000: $12,000,000 for pain and suffering; $2,000,000 for past and future loss of earnings and $30,000,000 for past and future medical and life care expenses.
• The defense successfully argued on appeal that the approximately $800,000 jury award for future child care expenses should be vacated in its entirety because it was purely speculative. Plaintiff testified that she "hoped" to have two or three children after getting married but the defense pointed out that she was neither married nor pregnant and had never consulted with a doctor to learn whether she could conceive or carry a child.

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