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Court Affirms Increase in Pain and Suffering Verdict for Leg and Wrist Injuries

Posted in Leg Injuries, Wrist Injuries

On August 2, 2007, Anthony Deandino, then a 25 year old ironworker, was a passenger on a motorcycle being driven by his friend Robert Munsen at the intersection of Colonial Road and 78th Street in Brooklyn.

Proceeding through the intersection, they were struck by a city bus that failed to stop at a stop sign. Both were ejected from the motorcycle and landed in the street. Deandino was rushed by ambulance to a nearby hospital where he was diagnosed with several broken bones.

In his ensuing lawsuit, plaintiff’s motion for summary judgment was granted; the owner of the bus (the city’s transit authority) and its driver were held fully liable for the accident. The matter then proceeded to a trial on damages only.

On November 10, 2010, a Kings County jury awarded Deandino pain and suffering damages in the sum of $750,000 ($250,000 past – 3 years, $500,000 future – 46 years).

Both sides appealed – plaintiff claimed that the award was inadequate and the defendant claimed that it was excessive.

In Deandino v. New York City Transit Authority (2d Dept. 2013), the appeals court ruled that the past pain and suffering award should be increased by $150,000 so that the total for pain and suffering was set at $900,000 ($400,000 past, $500,000 future).

Here are the injury details:

  • displaced left femur fracture – requiring open reduction internal fixation surgery with a metal rod, extending from the hip to the knee, implanted and secured with metal screws
  • comminuted, displaced radius and ulna fractures – requiring open reduction internal fixation surgery with two metal pates and 15 screws
  • dislocation of left elbow that ruptured connecting ligaments
  • avulsion of left fingertips requiring surgical repair
  • fractured ribs and pulmonary contusion
  • post-traumatic stress disorder (PTSD)

Deandino was hospitalized for three weeks immediately following accident and underwent two years of outpatient physical therapy.

Several medical witnesses testified for plaintiff, including his orthopedic surgeon Joseph Walsh, M.D., a physiatrist and a psychologist. They discussed the severity and permanence of plaintiff’s injuries (including weakness, atrophy and the likelihood of arthritis developing in both his leg and arm) as well as his inability to return to work, despite his stoic nature and refusal to complain of pain or disability.

In addition to pain and suffering damages, the jury awarded Deandino about $1.7 Million for past and future loss of earnings (including lost pension, health insurance and annuity benefits); the appellate court, though, reduced that sum by $283,000 because the jury disregarded to that extent the testimony and evidence as to the actual amounts for past loss of earnings. The jury determined that plaintiff’s future work-life expectancy was 33 years.

Finally, the jury also awarded (and the appellate court affirmed) $465,000 for future medical expenses (over plaintiff’s 46 year life expectancy).

The defense denied the legitimacy of all of plaintiff’s future economic damages, insisting that he had recovered from his injuries.

Inside Information:

  • Defendant was sanctioned $2,500 for its failure to timely produce a system safety report that included objective data downloaded from the bus’s event recorder¬† showing the bus had passed through the stop sign at 11 m.p.h and continued at full throttle to the point of impact where it had reached 20 m.p.h.
  • It was after production of the event data report on December 24, 2008, that the defendants conceded liability and a judge granted plaintiff’s motion for summary judgment.
  • Despite the severity of his injuries, Deandino began¬† looking for work within months of the accident and in early 2008 he landed a job as an ironworker, albeit on light duty. After about six months, though he was unable to continue and never again returned to any type of employment.
  • Before the accident, Deandino had taken and scored well on the examination to become a New York City fire fighter; in the summer of 2009, he took and passed the FDNY’s grueling candidate physical ability test and, before trial, ran in four 5K road races. It was the FDNY’s examining surgeon that the appellate court mentioned as an expert who was precluded from testifying at the trial. The defense wanted his testimony that when he examined Deandino on August 26, 2008, he was physically capable of being a fireman; however, the plaintiff argued, successfully, that the failure until trial was underway to give notice of this intended expert witness was prejudicial and unfair.
  • Plaintiff’s expert psychologist believed that plaintiff was delusional or at least highly unrealistic as to his ability to return to work. Plaintiff’s attorney agreed stating that it was the jury’s job to protect plaintiff from himself by awarding him enough loss of earnings damages so that he would not need to try to return to work. In open court, the attorney turned to plaintiff and stated: “You will never be a firefighter.”
  • Plaintiff had been examined before trial by an orthopedic surgeon for the defense (Raz Winiarsky, M.D.) and a neurologist (Maria De Jesus, M.D.); however, only the neurologist was called as an expert witness and plaintiff was granted a so-called missing witness charge as to Dr. Winiarsky permitting the jury to regard negatively the failure to call him as a witness.
  • In closing arguments, plaintiff’s attorney asked the jury to award $3,500,000 for past pain and suffering; he did not request a specific amount for the future. Prior to trial, plaintiff’s settlement demand was $5,000,000; defendants’ offer to settle was $350,000.
  • Deandino’s motorcycle driver, Robert Munsen, died from the injuries he sustained in the accident. Munsen was a close friend and as Deandino was on the street screaming in pain, immobilized by his own injuries, he was unable to offer any aid to Munsen who was several feet away, also on the street, unconscious and dying.