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Erroneous Preclusion of Evidence Requires Retrial of Damages Verdict in Spinal Injury Case

Posted in Back Injuries

On November 23, 2011 Melissa Shillingford was stopped for a red light on Beach Avenue at the Cross Bronx Expressway intersection.  As the light turned green, her 1997 Honda Accord vehicle was struck in the rear by a city bus.

1997 Honda Accord

A 1997 Honda Accord

Ms. Shillingford, then a 23 year old college student, claimed she sustained significant back injuries and sued the transit authority and its driver who defended claiming that plaintiff failed to move forward when the light turned green and also that wet leaves on the pavement created a slippery condition. On January 25, 2013 the defenses were rejected and a judge granted plaintiff’s motion for summary judgment and directed a trial to be held on the issue of damages only.

Two years later, the damages trial was held and on April 21, 2015 the Bronx jury awarded pain and suffering damages in the sum of $1,600,000 ($100,000 past – three years, $1,500,000 – 54 years) plus medical expenses in the sum of $830,000 ($30,000 past, $800,000 future – 54 years). The trial judge denied defendants’ motion to set aside the verdict rejecting the contention that the award of damages is excessive.

Defendants appealed, again arguing that the damages award is excessive and also arguing that the trial judge erred in precluding both testimony of their biomechanical expert and photographs of the vehicles after the accident. In Shillingford v. New York City Transit Authority (1st Dept. 2017), the appellate court agreed with the defendants as to the evidence issues, reversed the judgment entered after trial and remanded the case for a new trial on damages.

The appellate court did not address the issue of damages. Here are the injury details:

  • herniated disc at L4-5 requiring eight months of conservative treatment including physical therapy (about 45 office visits) and three epidural steroid injections
  • surgery on 3/24/13: laminectomy and partial discectomy (removal of the lamina and part of the facet joint to get to and remove the herniation at L4-5)
  • residual continuing pain and restricted range of motion with likelihood of two spinal fusion surgeries in the future

laminectomy-surgery1

The defense argued that the impact was minor, there was no herniation at L4-5 (just a bulge), plaintiff missed only one month from school (she was still a student at the time of trial), she already had a degenerative spine before the accident and her range of motion was normal after the surgery.

At the new trial, defendant’s biomechanical expert will be permitted to testify and offer his opinion on the maximum force that may have been applied to plaintiff and the likelihood of resulting injury. In his pre-trial report, the expert concluded that “the subject incident provided no mechanism for causing” plaintiff’s disc herniation.

Inside Information:

  • The defendants offered to settle for $1,200,000 before the verdict but plaintiff’s settlement demand at the time was $2,000,000.
  • There was no claim for lost earnings.
  • The jury deliberated for almost three days and reviewed all of the more than 20 exhibits that were in evidence.