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

On June 10, 2003, Romeo Marshall was working as a field technician for Transcore Holdings, Inc., a company that designs, installs and maintains electronic toll collection systems. His job that day was servicing the EZ Pass machines at the Bronx-Whitestone Bridge. Unfortunately, while in a truck lane at the toll plaza, Marshall didn't see a pothole and he fell.

Here is what the toll area looked like:

And this is what the pothole may have looked like on the day of the accident  (Marshall claims it was 4 by 13 inches and 5 inches deep; it was later patched up):

The Metropolitan Transit Authority (the MTA) through its constituent agency, the Triborough Bridges and Tunnels Authority (the TBTA) operates seven NYC bridges (including the Bronx Whitestone) and two tunnels and collects more than $1 billion a year in toll revenues.

Marshall blamed the MTA and the TBTA for his injuries claiming that the pothole was the result of a faulty repair and that the area should have been closed down pending a new repair.

In October 2009, a Bronx County jury found that the area where Marshall fell was unsafe and that the TBTA was 100% at fault.

The jury then assessed damages for the 40 year old Marshall's injuries:

• an avulsion fracture of his ankle, initially treated with a hard cast for six weeks
• arthroscopic surgery to reconstruct his posterior talofibular ligament
• herniated disc at L4-5 deforming the thecal sac and impinging on the nerve roots and a bulging disc at L5-S1, each with radiating pain

Here is a drawing showing repair of a talofibular ligament [the solid arrow] as well as the calcaneofibular ligament [the open arrow] with the peroneus tendon shown in red and the peroneus longus tendon in yellow:

At trial, plaintiff and his doctor testified that:

• he still experiences severe ankle pain, swelling and diminshed range of motion as well as low back pain that radiates to his leg
• he cannot any longer play soccer or football and he has to wear an ankle brace
• he has traumatic arthritis in his ankle
• all of his injuries are permanent and will worsen

The jury returned a pain and suffering verdict in the sum of $1,850,000 ($450,000 past - 6 years; $1,400,000 future - 36 years).

The trial judge has now issued his post-trial decision in Marshall v. TBTA holding that the pain and suffering verdict was excessive, to the extent that the future pain and suffering award was more than $800,000. The judge ordered a new trial to be held unless plaintiff stipulates to accept the reduced total pain and suffering award of $1,250,000.

In reducing the future pain and suffering award by $600,000, the judge stated that the ankle injury cases cited by the plaintiff involve injuries more severe than Mr. Marshall's and that it is overly simplistic, as plaintiff urged, to merely add relevant ankle verdict amounts to relevant spinal verdict amounts to arrive mechanically at a sum of the two.

The judge failed to address specifically the cases cited by the parties and he failed to state why he concluded that $800,000 (instead of $1,400,000) was reasonable for future pain and suffering. The appellate court will likely address these same issues and be faced with the same case precedents (though it's not at all certain that any more guidance will be given when the appeals court judges issue their decision on this case).

Here are the relevant cases:

• Keating v. SS&R Management Co. (1st. Dept. 2009) - $1,100,000 ($500,000 past, $600,000 future - 31 years) for a 45 year old woman with fractures of her tibia and fibula requiring six surgeries including open reduction internal fixation (ORIF) leaving her with a permanent large skin flap deformity, the need for new surgery with an external fixation device applied for more than 12 months and unable to work as a legal secretary. Plaintiff in Marshall v. TBTA argued that this recent case supports a future damages award to him of $700,000 just for his ankle injury and that much more should be added for his back injury. The defense, however, argued persuasively that Ms. Keating's leg injuries were far more extensive than Mr. Marshall's.
• Ruiz v. New York City Transit Authority (1st Dept. 2007) - $300,000 ($100,000 past, $200,000 future - 34 years), reduced from a jury verdict of $1,100,000 ($350,000 past, $750,000 future) for a 46 year old woman with a fractured ankle requiring ORIF surgery who had an uncomplicated recovery but was left unable to walk for long periods of time and with occasional pain treated with over the counter medications. The defense in Marshall v. TBTA urged that the injuries suffered by Ms. Ruiz were quite comparable to those of Mr. Marshall who did not require the more invasive ORIF surgery involving the insertion of a metal plate, and who made a good recovery and requires no more treatment for his ankle or any prescription medication.
• Sienicki v. 760 West End Avenue Owners, Inc. (1st. Dept. 2005) - $250,000 ($100,000 past, $150,000 future - 10 years), increased from $50,000 ($25,000 past, $25,000 future) for a 46 year old man who sustained severe fractures of his tibia and fibula requiring two surgeries, including a total ankle fusion and was left with a permanent limp, pain and the need to use a cane. Clearly, these ankle injuries far exceeded Mr. Marshall's.
• Orellano v. 29 East 37th Street Realty Corp. (1st. Dept. 2004) - $750,000 ($375,000 past, $375,000 future), increased from the trial judge's post-trial order decreasing the jury verdict of $5,500,000 to $600,000. Mr. Orellano, a 47 year old manual laborer, fractured his distal tibia and fibula first requiring external fixation, then ORIF, two months of hospitalization and a total of four surgeries.

In view of the foregoing cases, I expect the appellate court to reduce Mr. Marshall's damages award even more than the trial judge did with respect to ankle pain and suffering.

Both sides in Marshall v. TBTA cited cases involving spinal herniations. Plaintiff suggested that an appropriate figure for his back injury should be added to the figure for his ankle injury while the defendant urged that Marshall's back injury was minor, not caused by the accident (he had no treatment for two years after the accident, only six doctor visits in the next two years and none in the three years before trial) and does not require surgery (despite plaintiffs doctor's testimony that it is a possibility).

It's unlikely that the appellate court will evaluate this case as one that merits any significant award for pain and suffering related to plaintiff's back injury in view of:

• the lack of significant medical treatment for the back injury
• the fact that there was no back treatment at all for over two years after the accident
• the unwillingness of plaintiff's doctor to state with any degree of medical certainty that Marshall will need future treatment related to his back, no less surgery.

Inside Information:

• Marshall's wife presented her own loss of consortium claim, and the jury awarded her $40,000 for the three year period from the date of the accident until she and Mr. Marshall separated and were divorced. The defendant will argue on appeal that nothing at all should have been awarded to the then Mrs. Marshall.
• The defendant will also argue on appeal that the entire verdict was against the weight of the evidence. This will involve issues such as whether the defect in the road was so trivial that as a matter of law no liability should attach and the extent to which, if at all, the plaintiff should have been charged with comparative negligence (for not seeing what was there to be seen).

We will, of course, follow this case and report back when there's been an appellate resolution or a settlement.

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The defendants admitted that they caused the car accident on August 9, 2005 when Fred Nesci's car was totaled after it was rear ended by their SUV.

Rear end collision damage:

Fred and his passenger (his wife Valerie) claimed serious injuries but the defense insisted on a damages trial arguing that the injuries were not enough to meet the serious injury threshold required for car accident plaintiffs before they may recover any pain and suffering damages, as set forth in New York's restrictive Insurance Law Section 5102 (d).

A January 2009 trial in Nassau County resulted in a jury verdict for the two plaintiffs in the sum of $465,000 but it's now been reversed on appeal because the medical evidence submitted at trial was not based on a recent examination. There were additional reasons for the reversal in Nesci v. Romanelli but let's take a step back and look at the injuries, the jury verdict and the law surrounding the serious injury threshold - a law that's come under increasing attack from the plaintiff's bar.

As we write, Insurance Law 5102 is being considered by both houses of New York's legislature as they decide whether and to what extent to enact new laws designed to remedy some of the current inadequacies of the statute.

The injuries:

Mr. Nesci, a 51 year old x-ray technician, first sought medical treatment eight days after the accident (from an orthopedic surgeon) complaining of lower back and left shoulder pain. An MRI revealed spondylolothesis, mild central canal stenosis at L3-4 and a disc bulge at L4-5. He underwent eight months of physical therapy. About two tears later, a new MRI scan showed traumatically induced arthritis in his left shoulder. He claimed he could not return to work, participate in sports the way he used to or lift his arm above his head.

         Spondylolothesis is a disorder that causes the forward motion (slip) of one vertebral body over the one below. It is often the result of degenerative disc disease. Traumatic spondylolothesis is rare.

Mrs. Nesci, a 52 year old nurse, was taken to the hospital from the scene of the accident, treated for neck pain and released that night. She followed up with an orthopedist eight days later and an MRI later revealed that she had a herniated disc at C3-4. An EMG was positive for radiculopathy and she underwent eight months of physical therapy along with three steroid injections in her neck.

       Herniated disc vs. bulging disc:

The jury verdicts:

Mr. Nesci prevailed on his claims that he sustained a permanent consequential limitation of use of a body organ or member, and also sustained a medically determined injury which prevented him from performing all of his daily activities for 90 of the first 180 days immediately following the accident. He was awarded $125,000 for his pain and suffering ($25,000 past - 3 1/2 years; $100,000 future - 20 years). He was also awarded $40,000 for loss of earnings.

Mrs. Nesci prevailed on the same serious injury thresholds (permanent consequential limitation of use and 90/180) in addition to a finding that she sustained a permanent loss of use of a body member, function or system. She was awarded pain and suffering damages in the sum of $250,000 ($50,000 past - 3 1/2 years, $200,000 future - 20 years).

The Appellate Court Reversal:

The judges gave short shrift to the 90/180 claims noting neither plaintiff came forward with evidence of an inability to perform daily activities and that Mrs. Nesci returned to her usual job within six weeks.

All of the other threshold categories that the jury ruled upon had an element of permanence and to meet that test a plaintiff must submit trial evidence of a recent medical examination. Neither plaintiff underwent any medical treatment at all within 15 months before trial and their medical expert (the treating orthopedist) last treated them in 2007 (May 2007 as to Mr. Nesci and December 2007 as to Mrs. Nesci). This lack of any recent medical examination led the judges to agree with the defense that the plaintiffs' medical testimony as to permanence was therefore conclusory and speculative.

Inside Information:

• Mr. Nesci previously injured his shoulder in 2000 and missed four weeks of work as a result but at his deposition in this case testified he had never before injured his shoulder.
• Mr. Nesci's doctor testified that the prior shoulder injury may have caused the arthritis now evident but Nesci had failed to make a claim of aggravation of a prior injury thus giving the court a separate basis to rule that the shoulder arthritis claim may not be presented to the jury (the defense is entitled to know if a plaintiff is claiming a brand new injury or an aggravation of an old one - or both).
• There was a significant discrepancy as to Mrs. Nesci's cervical herniation claims. Her first MRI showed a herniation at C3-4 but her second one a year later showed a herniation at C5-6 and was silent as to C3-4. She also had a prior laminectomy in 1981.

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On November 15, 2003, Conchita Ortiz tripped and fell over a building entryway's improperly raised half-step platform-like structure at 975 Walton Avenue in the Bronx. She sustained a lumbar compression fracture and in her ensuing lawsuit, the jury found that the building owner was negligent (and that plaintiff was too - each was held to be 50% at fault).

Plaintiff testified that she endured five years of unremitting back pain since the accident drastically altering her prior lifestyle as a vibrant, independent woman who traveled, enjoyed her family and took care of others. She claimed she is now a disabled, fearful woman  who does almost none of the things she used to do before (all pain-free), such as walking freely to nearly unlimited distances on a regular basis, cooking, cleaning, shopping and caring for her ailing husband and sister.

The jury awarded Ms. Ortiz a mere $20,000 for her pain and suffering damages ($10,000 past - 5 years, $10,000 future - 5 years). With her own comparative negligence, that meant she would receive a total of only $10,000.

Here is what a spinal compression fracture looks like:

And, for some detailed medical information on the causes of and treatment for spinal compression fractures, go here.

Ms. Ortiz appealed the verdict as to the amount of damages, arguing that $20,000 was much too low. The defendant countered that $20,000 was just fine.

In Ortiz v. 975 LLC, the appellate court has now ordered an increase in the damages verdict - from $20,000 to $90,000 ($40,000 past, $50,000 future) before apportionment.

Unfortunately, the appellate court's decision contained little of any value to the reader as to the injuries suffered in this case or why and on what basis the judges determined to increase the award. We had to uncover it all - even the simple fact that the injury was a compression fracture at L-1.

Here are the rest of the important details as to the injury:

• plaintiff was 76 years old when she fell and 81 at trial
• she was hospitalized for nine days and then on bed rest at home for two weeks
• she underwent very little further medical care for her injuries - just five physical therapy visits and two visits to an orthopedist recommended by her attorney three years after the accident
• before the accident she never had any back pain or treatment but it was undisputed (her expert agreed) that she had pre-existing degenerative arthritis in her back as well as osteoporosis

The defense medial expert ascribed great significance to plaintiff's pre-existing arthritis and osteoporosis allowing defense counsel to urge upon the jury that plaintiff's new complaints of back pain were related directly to and the result of her prior condition.

Here is what the vertebrae look like when affected by osteoporosis (porous bones):

Plaintiff, of course, urged that since she never before had any back pain, or any treatment related to her back, all of her current complaints of pain and disability had to have been caused by her trip and fall trauma. The jury obviously disagreed in view of its paltry $20,000 evaluation of plaintiff's injury.

A jury may certainly consider, and will be directed by the trial judge to do so in the appropriate case, whether and to what extent a plaintiff's pre-existing medical condition may have made her more likely to sustain a new injury (here, the L-1 compression fracture) or whether the defendant's negligence aggravated an old injury. These principles are well established and incorporated into jury instructions such as:

• PJI 2:282 (plaintiffs may recover damages to the extent their pre-existing conditions are aggravated by the defendant's negligence) and
• PJI 2:283 (defendants are liable for those injuries that are greater than those that would have been sustained by a normal healthy person)

The problem for plaintiffs is that it's difficult for jurors to separate out which current and post-trial future complaints of pain and disability are related to a  plaintiff's prior condition and which are related just to the new trauma. They often award very little for the "new" injuries claimed by a plaintiff when there are pre-existing conditions similar to the new injuries. That's what appears to have happened to Ms. Ortiz.

When reviewing the amount of a jury's pain and suffering damage award, appellate judges state repeatedly that they too are greatly influenced by evidence of a related pre-existing condition.

In cases such as Mejia v. JMM Audobon, Inc. (1st. Dept. 2003) and Vaval v. NYRAC (2nd Dept. 2006), both cited by the defense in Ortiz v. 975 LLC, the appellate courts upheld low pain and suffering verdicts (in the $25,000 range) for significant injuries where there was relevant evidence of pre-existing conditions.

At first glance, even the increased award of $90,000 for Ms. Ortiz's L-1 compression fracture seems quite low but on review and analysis of the facts, one can understand why the jury came in with such a figure and why the appellate judges refused to increase it beyond $90,000. This was an 81 year old woman with very little treatment and a pre-existing condition directly related to the injuries claimed at trial. The jurors clearly did not believe that she had no prior pain or disabilities nor were they impressed with the severity of the "new" or increased injuries given the lack of significant treatment. 

Every injury carries with it an appropriate range of awards, and the appellate courts intervene only when the verdict falls outside that range. Thus, if a jury's award is unreasonably low, an appellate court may raise it to a minimally acceptable level. The issue in Ortiz v. 975 LLC was  whether plaintiff's $20,000 jury award was so low that it fell short of the minimum of what would be considered the low end of a reasonable range. The $90,000 additur here is therefore the lowest amount that the appellate judges felt was permissible under the facts for Ms. Ortiz's pain and suffering.

Inside Information:

Plaintiff's counsel remains unsatisfied with the increase but stated he will accept the court's ruling and stipulate to the $90,000 thus ending this case once and for all.

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Seven months pregnant with twins, Kathleen Conlon was slowing down in traffic on the Brooklyn-Queens Expressway on July 12, 1999 when her car was struck in the rear by a New York City express bus. Her car buckled and her back was injured but her twins were unharmed (and born healthy in due time).

You don't want your little car hit by one of these:

 From the scene of the accident, Ms. Conlon was whisked by ambulance to a local hospital where she was treated for her back pain.  She was treated conservatively over the next two months under the care of a chiropractor but her pain worsened and radiated to her legs, a sign that there may be herniated discs. Sure enough, an MRI later revealed herniations at L4-L5 and L5-S1 as well as nerve root compression.

After more conservative treatment, additional MRI studies and several rounds of painful epidural injections, Kathleen’s pain continued and it appeared to be getting worse – she was losing the normal fluid between her discs and the space between them was collapsing. Furthermore, she’d developed osteophytes or bone spurs that pressed on nerve roots.

Finally, in May 2004, in an effort to relieve her unremitting pain, Kathleen submitted to major surgery – a lumbar laminectomy with decompression of the nerve roots and a spinal fusion with bone graft, like this:

A lawsuit against the New York City Transit Authority (the NYCTA owns and operates the city buses) was underway and Conlon had two years earlier won summary judgment on liability, meaning that the only issue for a jury would be the amount of damages. Despite the liability finding, the defense never made any settlement offer at all so the case proceeded to a damages trial.

On September 25, 2008, a Kings County jury returned a verdict for $5,000,000 – entirely allocated to plaintiff’s nine years of pain and suffering from the date of the accident to the date of the verdict.

Nothing at all was awarded for the 30 year old plaintiff's future pain and suffering despite the jury's findings that her injuries are permanent and she has a 41 year life expectancy.

On appeal, the judges last week in Conlon v. Foley (2nd Dept. 2010) agreed with the defense that $5,000,000 was excessive and they ruled that $700,000 for past pain and suffering (9 years) would be reasonable. As to future damages (41 years), the judges found that the jury’s failure to award anything at all was not based on a fair interpretation of the evidence, was inadequate and $100,000 should be awarded.

The big issue in Conlon v. Foley was not the large past pain and suffering award (plaintiff’s appellate counsel conceded it was excessive and suggested that it might fairly be reduced to $2,000,000); rather it was the award of zero for future damages.

Not at all apparent in the appellate court decision was the real reason the jury awarded nothing for the future – the trial judge’s order that plaintiff’s doctors were not allowed to testify as to her need for a second surgery.

Andrew Merola, M.D., the head of spinal surgery at St. Vincent’s Hospital, was plaintiff’s treating doctor. He’d performed the first surgery and had determined that his patient suffered from failed back syndrome and, as a result, plaintiff needed a new laminectomy with discectomy and a fusion with a metal plate and screws.

The jury was not told of this major development (the need for new surgery) because the defense claimed that they were taken by surprise, did not know plaintiff would make this claim at trial and it would therefore be unfair to permit such testimony. The judge agreed because plaintiff had not specifically mentioned this second surgery in her bills of particulars (pre-trial disclosure documents mandated under CPLR 3043. There had been the standard disclosure that plaintiff’s spinal injuries would require future surgical intervention but, the defense argued, once the first surgery occurred there was no specific notice that a second might be needed.

The jury did hear testimony from plaintiff and her doctors that, although she'd returned to work as a teacher, she'd need more treatment, including injections, and the following appeared to be permanent:

• continuing back pain
• nerve damage
• significant loss of spinal range of motion
• development of arthritis
• presence of scar tissue
• difficulty standing, sitting and bending

Inside Information:

• The defense was precluded from offering the testimony of a neurologist who examined the plaintiff because the expert notice required was not timely exchanged.
• The only doctor to testify for the defense was a radiologist, Lewis Rothman, M.D. who testified that all of plaintiff’s back pain stemmed from pre-existing degeneration. He was skewered by plaintiff’s counsel regarding testimony he’d given in other trials that was at odds with the position he took in this trial and also regarding a lawsuit against his former partners in which he reluctantly admitted to Ms. Conlon’s attorney that he’d improperly backdated records.

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New York has a very restrictive law when it comes to winning pain and suffering damages in car accident lawsuits. Our so-called No Fault Law was first enacted in 1973 and was designed to weed out frivolous claims and limit recovery to significant injuries. In return, car accident victims received some guaranteed medical and lost wage benefits, regardless of who was at fault.

Now,  many whiplash cases are being dismissed before or at trial because judges and juries conclude that plaintiffs’ injuries do not meet the minimum test of seriousness required under the statute.

Whiplash is a non-medical term used to describe back and neck pain following soft tissue and intervertebral disc injuries in the spine caused by abnormal motion or force that makes the spine whip back and forth.

Under the law, one may be awarded pain and suffering damages only if the one has sustained a "serious injury," defined under Insurance Law Section 5102 (d) as one of the following:
1. A personal injury that results in death;
2. Dismemberment;
3. A significant disfigurement;
4. A fracture;
5. The loss of a fetus;
6. Permanent loss of use of a body organ, member, function or system;
7. Permanent consequential limitation of use of a body organ or member;
8. Significant limitation of use of a body function or system; or
9. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

The main battlegrounds in the courts have been the categories that deal with permanent loss, permanent limitation and significant limitation (six, seven and eight). Judges have been requiring more and more objective proof of injuries (such as range of motion testing) that plaintiffs and their health care providers have been unable to provide. Cases are being dismissed routinely. Attorneys representing plaintiffs have been frustrated by this trend and some say it’s time for the law to be changed (see, New York’s No-Fault Problem With Serious Injuries).

The ninth category – what the lawyers call the 90/180 test - was first thought to be an easy test to meet. Just show that the plaintiff was out of work for three months or more (or otherwise laid up for 90 out of the 180 days after the accident) and then pain and suffering damages may be recovered. It’s never been that easy (nor was it intended to be) and now it’s difficult to win damages under this category as well.

 Judges are routinely applying ever more rigorous standards to dismiss cases of those trying to prove they meet the 90/180 test. In each of the following recent cases it was held that plaintiff failed to meet the requirements under the 90/180 test (in large part because of the lack of objective testing showing significant deficits):

• Toure v. Avis Rent A Car Systems (Court of Appeals 2002)
• Taylor v. American Radio Dispatcher, Inc. (1st Dept. 2009)
• Dembele v. Cambisaca (1st Dept. 2009)
• Dieujuste v. Kiss Management Corp. (1st Dept. 2009)

The most recent appellate court case dealing with the 90/180 test is this month's Chery v. Souffrant (2nd Dept. 2010). Reading that decision, however, gives one little insight as to what the issues or injuries were. We’ve uncovered the details.

On July 24, 2006 Marie Chery was driving home in Spring Valley, New York where she was a factory worker. She was stopped when her car was struck in the rear by a car operated by Lavaud Souffrant traveling at about 25 miles per hour.

Ms. Chery’s head struck the headrest of her car seat, she passed out briefly and then she was taken by ambulance to the hospital. Complaining of back and neck pain, Marie was examined, x-rayed, cleared and released to home. She followed up with a doctor within a few days, was diagnosed with a herniated disc at L4-5 and advised to rest and stay out of work. Her injuries were itemized in her Bill of Particulars.

After a course of treatment including physical therapy, chiropractic treatment and massage therapy and after testing including nerve conduction studies and an MRI, Ms. Chery’s physician cleared her to return to work on October 23, 2006. And that’s what she did (although she refrained from some of the more rigorous work she normally did as a furniture sander) and she also basically stopped her medical treatment for the injuries in her accident.

In her ensuing lawsuit, defendant conceded fault for the accident and therefore the trial was only to determine damages; however, the defense successfully moved to have dismissed any claim that categories six, seven and eight were met. The trial judge issued an order allowing only the 90/180 claim to proceed to trial.

So, on January 6, 2009 the case was tried in Rockland County and the only issue for the jury was whether the 55 year old plaintiff had satisfied the 90/180 test and if so the amount of her pain and suffering damages for the 90 days. 

The jury found that the 90 days (exactly) that Ms. Chery was unable to work (or sing in her church choir, cook or attend to most of her chores at home) satisfied the 90/180 test and she should receive $50,000 for her past pain and suffering.

On appeal, the defense claimed that the $50,000 verdict was unreasonably excessive. In summation, defense counsel had stated that damages should be no more than $15,000. Plaintiff’s counsel did not suggest a specific sum stating that he was leaving it up to the jury to determine the amount. The appellate court sustained the $50,000 award finding that it is not deviate from what would be reasonable compensation.

The court in Chery v. Souffrant cited no cases in support of its affirmance of the $50,000 damages award. Here are the 90/180 damages cases the judges could have mentioned (and probably relied upon):

• Baez v. Goldman (App. Term 1st Dept. 1999) - $75,000 affirmed where plaintiff returned to work in 76 days but on restricted duty
• Vasquez v. Weiss (3rd Dept. 1996) - $50,000 affirmed where plaintiff returned to work in one month due to economic necessity

Inside Information:

• Plaintiff, a Haitian immigrant, spoke no English so an interpreter had to be utilized in court. That often makes it very difficult for a jury to follow testimony and become endeared to a non-English speaking party.
• The defense doctors who examined the plaintiff did so well after the 180 day period and they were not called to testify (and had the defense sought to bring them in their testimony would have been excluded as irrelevant).

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Shania-Gay Ffrench was 21 years old on February 3, 2000 when she went to the emergency room at Mount Vernon Hospital complaining of back pain. Doctors there suspected uterine fibroids and she was told to follow up with her primary care physician and her gynecologist. She did so.  She saw her internist Keith Edwards, M.D. who referred her to an orthopedist and she saw her gynecologist who performed a lysis of adhesions. Ms. Ffrench’s  pain persisted, though, and the cause was never diagnosed until a year later when an MRI revealed that her back pain was a product of a spinal tumor – an intramedullary astrocytoma (the white spot on the MRI).

The tumor took three surgeries and six years until it was finally and fully removed in 2007. Ms. Ffrench was left substantially unable to use her legs and she blamed her doctors for failing to diagnose and remove the tumor early enough so that her injuries could have been avoided.

A medical malpractice lawsuit was started (Ffrench v. Agnant - Supreme Court, Westchester County; Index # 14401/02) against nearly everyone involved in Ms. Ffrench’s care since 2000

After several years of litigation, on July 23, 2007, the judge issued an order absolving the neurosurgeon who removed the tumor and his hospital from any fault.

Four defendants settled after opening statements for a total of $875,000, as follows:

• $600,000 by the gynecologist and his practice,
• $100,000 by the initial hospital and
• $175,000 by a primary care doctor.

Dr. Edwards refused to settle and the trial proceeded against him alone.

Dr. Edwards based his defense on the fact that he had seen Ms. Ffrench only three times – on February 7, 2000 (for back pain), February 26, 2000 (to clear her for gynecological surgery) and July 6, 2000 (for a headache) and he never treated her again. Furthermore, he claimed, plaintiff herself bore responsibility because, in January 2001, her new primary care physician told her to see a neurologist and she didn't do so until July 2001 when the MRI confirmed the tumor.

On August 31, 2001 Ffrench underwent surgery with a neurosurgeon who planned to do a biopsy and “debulk” or remove as much of the tumor as possible. During surgery, though, a somatosensory evoked potential (SSEP) test was abnormal, indicating that the spinal cord had become dysfunctional. The surgery had to be stopped.

French remained hospitalized for six months and then underwent four months of rehabilitation. As of trial in July 2009, she was able to walk only short distances and only with forearm crutches and leg braces. She frequently required the assistance of a wheelchair.

The jury returned a verdict finding Dr. Edwards 30% at fault, the original hospital 25%, the gynecologist and his practice 25%, a primary care doctor 10% and the orthopedist 10%.

Then, the jury assessed damages in the total sum of $49,750,000 as follows:

• $29,500,000 pain and suffering ($4,500,000 past – 8 years, $25,000,000 future – 50 years),
• $18,450,000  medical expenses and rehabilitation services ($450,000 past, $18,000,000 future)

Defendant made a post–trial motion under New York’s CPLR 4404 seeking a judgment of dismissal notwithstanding the verdict arguing that:

• the plaintiff had failed to establish proximate cause -  i.e., that his alleged negligence (failing to refer plaintiff for neurological testing) actually caused plaintiff’s injuries,
• the verdict was against the weight of evidence because there were no medical records substantiating plaintiff’s claim that she complained of neurological symptoms (such as numbness in her legs) that would have led him to refer her for neurological testing, and,
• the amount of damages was grossly excessive

The trial judge denied the post-trial motion in a brief opinion that was devoid of any meaningful discussion of his reasoning. It’s not unusual for trial judges to give such short shrift to post-trial motions. Indeed, it’s well known and oft-stated that instead of delving into the issues, discussing the parties’ respective points and comparing the verdict amounts with other relevant prior cases, trial judges routinely leave it to the parties to appeal to the appellate division post-trial issues such as whether the jury’s verdict was against the weight of credible evidence or its damages awards were unreasonably excessive or minimal.

A notice of appeal has been filed and if this case doesn’t settle then the appellate court  will rule upon liability issues as well as damages and the appellate judges will most likely conclude that the $29,500,000 pain and suffering verdict is unreasonably excessive. Our analysis of appellate court decisions in which pain and suffering verdicts in the several millions of dollars range have been upheld indicates that the Ffrench verdict would be drastically reduced.

Generally, the largest sustained pain and suffering verdict cases involve paraplegia or quadriplegia. Here are some recent examples:

• Miraglia v. H&L Holding Corp. (1st Dept. 2007) - $10,000,000 for construction worker rendered a paraplegic after being impaled on a rebar
• Ruby v. Budget Rent A Car Corp. (1st Dept. 2005) - $10,000,000 for 25 year old rendered a paraplegic
• Desiderio v. Ochs (1st Dept. 2002) - $4,500,000 for infant with devastating neurological injuries including loss of gag reflex, inability to eat without feeding tube, inability to walk without assistance and brain damage

In contrast to the plaintiffs in Miraglia, Ruby and Desiderio, Ms. Ffrench, while undoubtedly in great pain and suffering tremendously, can walk with assistance, attend to her job (at a desk for a health insurance plan), cook and is able to participate - albeit with much difficulty -  in many other activities of daily living. It's extremely unlikely that an appellate court would sustain even one-half of the future pain and suffering award in the Ffrench case. And my guess is that the $29,500,000 would be cut by a lot more than one-half.

A so-called collateral source hearing is set in this case for next month. That’s where the judge will hear evidence about whether any part of the verdict for medical expenses and rehabilitation services will be replaced or indemnified by collateral sources such as insurance. If so, the verdict will be reduced to that extent.

Inside Information:

• Dr. Edwards asserts that plaintiff never proved what actually caused the loss of function in her legs; he also claims that damages against him should be limited to any worsening of plaintiff's condition from February 2000 to August 2001 rather than the sequelae of the surgery. Resolution of these issues on appeal may drastically affect the ultimate outcome in this case.
• After trial, plaintiff’s attorney requested that the judge allow him an increased legal fee (i.e., one-third of the recovery instead of the lesser statutorily prescribed sliding scale fee) due to the complexity of the case and the unusual amount of effort required to bring it to trial. Joined by his client and without opposition, the trial judge approved the request. It seems that plaintiff had a change of heart (and attorneys) because thereafter she filed a motion to reargue (denied) and a notice of appeal (pending) seeking a reversal of the fee increase decision.
• Before trial, plaintiff sought $950,000 to settle with Dr. Edwards. During trial, that settlement demand dropped to $600,000. Now, Dr. Edwards is exposed to a judgment of almost $15,000,000 (his 30% portion of the verdict).
• Dr. Edwards has $2,000,000 of malpractice insurance. Given the size of the verdict and the several years spanning the claimed negligence, though, plaintiff’s counsel may try to implicate two or more years of malpractice coverage so that there wold be more coverage, perhaps a total of $4,000,000. Such claims are not unusual in cases like this but here it would likely fail because of the very short period in which Dr. Edwards actually treated the plaintiff.
• Plaintiff’s attorney, Christopher Meagher, obtained another huge malpractice verdict in Westchester County in December 2009 - $61,000,000 (including $22,000,000 for pain and suffering) in Swanson v. Northern Westchester Hospital Center (Index # 16743/07) for a six year old boy with brain damage.

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What were they thinking? In a stairway trip and fall negligence case, the jury found:

1. plaintiff was negligent but defendant building owner was completely at fault and
   
2. the 35 year old plaintiff was entitled to $5,000,000 for past pain and suffering but zero for future pain and suffering

No one knows for sure what the jury was thinking but it’s certain that a brand new jury will be chosen to rule on these issues because the jurors who made these findings either were hopelessly confused, unable to understand the trial judge’s instructions or acted in inexplicable, irrational ways.

In any event, after six years of litigation, nine days of trial and countless hours of effort by lawyers for both sides, Davin Dessasore’s lawsuit against the New York City Housing Authority (the “NYCHA”) must now begin anew, according to a recent decision by an appeals court in Dessasore v. NYCHA (1st Dept. 2010).

It all began on December 11, 2003 when the then 31 year old Mr. Dessasore visited his mother at her second floor apartment located at 1085 Bruckner Boulevard in the Bronx, known as the Bronxdale Projects (an NYCHA building).

Here's one of the original 28 seven-story buildings of the Bronxdale Projects, built in 1955:

After his visit, Davin started to descend the stairs when he claims he tripped and fell to the bottom because of a detached handrail lying on the top step of the dimly lit staircase.

No one was with him or saw him fall but it was undisputed that Dessasore had been talking on his cell phone before and after he fell. The defense produced his cell phone records at trial in an effort to prove that plaintiff was careless and caused his own accident. He was cross-examined extensively on the issue of when exactly he was chatting on the phone.

Do not walk down stairs talking on your cell phone:

Plaintiff admitted he either received or made a phone call as he was leaving the apartment and was walking toward the stairs but he claimed he then put the phone away a moment before he fell. The jury found otherwise and ruled that Dessasore was negligent in speaking on his cell phone while descending the stairs but the jury ruled that his negligence was not a proximate cause of his injury and that the NYCHA was wholly at fault for the dangerous condition of the stairway. And then the jury also awarded Dessasore $5,000,000 for his injuries (details on this unusual damages verdict below). Here is a copy of the verdict sheet given to the the jurors in this case on which they recorded their findings.

The appellate court stated that the jury’s finding of 100% liability against the NYCHA without any reduction for plaintiff’s share of the fault was “irreconcilably inconsistent.” The judges noted three important pieces of evidence:

1. plaintiff was not looking down before he started to descend the stairs,
2. he wasn’t paying attention to his surroundings, and
3. he was talking on his cell phone just before he fell.

Therefore, the appeals judges concluded that it was “logically impossible” to find plaintiff was negligent without also finding that his negligence was a proximate cause of the accident. So, the entire liability verdict was dismissed and a new trial ordered on all issues.

The $5,000,000 pain and suffering damages award (all for the past five years and nothing for the future) was also addressed by the appellate court. The judges found it to be irrational, given the extent of plaintiff’s injuries and evidence of their permanence. Both the trial judge and the appellate bench concluded that the jury either did not understand the trial judge’s instructions on damages or did not follow them. Therefore, the new trial on damages ordered by the trial judge was appropriate.

After he fell, Dessasore was taken by ambulance to a local hospital where he was treated and released. Within days, he was in excruciating back pain and within a month of the accident, he claimed radiating pain down the left side to his foot and an MRI showed herniated discs at L4-L5 and L5-S1.

In March 2005 Davin underwent an endoscopic diskectomy at L4-L5 and L5-S1 (a minimally invasive procedure, described here). Four months later, he underwent a second surgery – a lumbar fusion – in which a cage and six screws connected by steel bars were implanted in his back.

Here is what the spine looks like after a lumbar fusion with six screws implanted:

Unfortunately, the surgeries were unsuccessful, Dessasore’s condition worsened and by the time of trial he described nearly five years of unremitting pain, the lack of any feeling in his left arm and hand (except his thumb), the inability to talk even short distances without literally dragging his left leg to move and daily reliance on a powerful prescription pain drug (Oxycontin). His doctors diagnosed him as suffering from hemiparesis (partial paralysis affecting one side of the body).

People afflicted with hemiparesis usually have a flexed elbow, stiff knee and an inverted ankle, with the lower limb swinging forward in a semicircular fashion and often require assistive devices like this:

The defense doctors disputed the finding of hemiparesis (it's most often caused by a stroke or cerebral palsy, not trauma) testifying that there was no evidence of a spinal cord injury and no anatomical basis for many of plaintiff’s complaints. Essentially, while conceding that the MRI studies showed the presence of herniated discs, they concluded that plaintiff has preexisting degenerative disc disease because of the presence of osteophytes and that his symptoms and neurological findings were way out of proportion to the findings in his imaging studies.

The jury apparently rejected the defense doctors’ conclusions because they awarded plaintiff $5,000,000 for his past pain and suffering.

Defense counsel attacked the $5,000,000 awarded for past damages as wildly excessive to the extent it exceeded $900,000. Given recent appellate court decisions ruling on multi-million dollar past pain and suffering awards, it appears there is merit to the defense position. Awards for 5-10 years of past pain and suffering in the range of $1,000,000 to $3,000,000 tend to be upheld on appeal only for persons with catastrophic physical and brain injuries such as:

• Smith v. Au (1st. Dept. 2005) - $1,000,000 for past pain and suffering (6 years) upheld for a 37 year old man who, due to medical malpractice, sustained  a stroke with permanent brain damage and right-sided paralysis
• Reed v. City of New York (1st. Dept. 2003) - $2,500,000 for past pain and suffering (7 years) upheld for a 43 year old woman in a pedestrian knockdown car accident who sustained several skull fractures and significant and progressive brain damage that left her permanently demented
• Weinstein v. New York Hospital (1st. Dept. 2001) - $2,000,000 for past pain and suffering (9 years) for a 22 year old college student who, due to medical malpractice, sustained brain damage with a permanent seizure disorder, memory deficits and loss of balance

The appellate court did not adjust the $5,000,000 award for past pain and suffering because of its rulings that the liability verdict was to be set aside and that the failure to award future damages may have been because the jury meant to include such damages in the $5,000,000 it did award (but denominated for past damages only). Since the appellate judges properly declined to speculate why or how the jury reached such an odd result, they simply ordered a new trial on all issues.

Inside Information:

• Defense counsel attacked plaintiff’s credibility at trial and on appeal – plaintiff was a prior convicted felon who spent 4 ½ years in jail for drug dealing.
• The jury also declined to make any award for medical expenses (past or future) despite evidence that plaintiff incurred past expenses of about $160,000 and would require lifelong medical care that his attorneys suggested would amount to about $800,000.
• After a nine day trial and the start of deliberations at the end of the day, the jury deliberated for a mere one hour (one juror had said he had a personal problem necessitating his travel out of town and would not return to court the next day). Clearly, they rushed and wanted to be done quickly.

Shortly after trial, the defendant offered $2,000,000 to settle but it was rejected. On appeal, plaintiff’s attorney asked the court to uphold the $5,000,000 for past damages and award an additional $2,000,000 for future damages. The court declined to do either and now, plaintiff has received nothing and faces a new trial on all issues.

To recover any damages whatsoever at the new trial, plaintiff will have to prevail on liability and the defense will surely argue that Dessasore was so careless that the jury should find he completely caused his own accident and injuries and should recover nothing at all. We will follow this case and report on developments.

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Defendants routinely and successfully argue in back and neck injury cases that  plaintiff’s injuries pre-existed an accident and no pain and suffering damages should be awarded (even if defendant is found to have caused the new accident). There’s merit to the argument but it’s not as simple as I’ve implied.

Under New York law, a plaintiff who’s been injured before is still entitled to recover pain and suffering damages resulting from a new injury to the same body part; however, a plaintiff is only entitled to damages to the extent to which he’s been further disabled or injured as a result of the new accident.

And, a plaintiff must make the aggravation or exacerbation of injury claim in his lawsuit pleadings before a trial judge will tell the jury that they may make an award for the increased pain and suffering. Otherwise, a plaintiff has to prove that all of his injuries were caused in the new accident and the defendant will win by convincing the jury that plaintiff’s injuries predated the current accident.

Plaintiffs usually claim that their preexisting neck and back injuries were resolved and that for years they had returned to prior levels of activity and were pain free. Now, they say, new trauma has caused new injuries, especially herniated discs, and they are in great pain and disabled as a result. The problem is, though, that magnetic resonance imaging (MRI) which illustrates the herniated discs very often is interpreted to show degenerative disc disease. When that happens, defense doctors will testify that the degeneration means plaintiff has preexisting disc disease and that it’s unclear what, if any, new spinal injuries were caused by the recent trauma.

With this background, we now turn to the case of Leslie Rodgers, a 40 year old man who was struck by a city bus at about 8 a.m. on September 23, 2003 while in the crosswalk on Gates Avenue at its intersection with Franklin Avenue in Brooklyn, New York. He was taken by ambulance to a local hospital where he was treated for minor back and other injuries and released. A month later, an MRI showed a herniated disc at L5-S1 with impingement on the S1 nerve root. Rodgers began a long course of conservative treatment including physical therapy, chiropractic treatment and two epidural steroid injections.

Finally, after three years, Rodgers underwent back surgery: a laminotomy and diskectomy at L5-S1. During the surgery, the doctor plucked out a disc fragment that had been impinging upon a nerve.

Here is what the diskectomy procedure looks like:

Post-operatively, Mr. Rodgers was much improved but his pain soon returned and at trial he testified that he was in great pain and disabled. He complained of intermittent numbness and pain up and down one leg with low back pain lasting all day and night. His surgeon opined that these conditions would be permanent. That meant Rodgers could no longer return to his job (at Fortune Society assisting HIV positive ex-convicts find housing); nor would he ever again enjoy basketball, handball or running.

The jury assessed pain and suffering at $1,400,000 ($200,000 past - 4 1/2  years; $1,200,000 future – 25 years).

The city appealed asserting:

1. that there was evidence that Rodgers had degenerative disc disease before the accident (the MRI a month after the accident revealed an osteophyte growth at the site of plaintiff’s L5-S1 herniation as well as desiccation and degeneration of the disc),
2. that he failed to make a claim in the lawsuit that the bus accident injuries may have been due, at least in part, to his preexisting condition and
3. that the trial judge should not have instructed the jury that they could award damages for plaintiff’s increased susceptibility to injury

Here is a comparison of normal, healthy discs with degenerated discs with osteophytes:

Last week, in Rodgers v. New York City Transit Authority (2nd Dept. 2010), the appellate judges agreed with the city and ordered a new trial, thus vacating the entire jury verdict (Rodgers was also awarded $1,000,000 for past and future lost earnings).

The trial judge had told the jury they could award pain and suffering damages for all of the injuries suffered by Rodgers if they found that his prior physical condition left him more susceptible to greater injuries than a healthy person (i.e., one without preexisting degenerative disc disease). The defense claimed it was prejudiced by this charge (Pattern Jury Instruction 2:283) in that plaintiff had proceeded in the lawsuit for years on the sole theory that all of his injuries were caused by the bus accident and he had never once put the defense on notice that some injuries may have been exacerbated or due to his prior condition that had left him with an increased susceptibility or the possibility of asymptomatic conditions becoming symptomatic. The appellate court agreed and ruled that the jury’s verdict was improper because it may have included damages for injuries that Mr. Rodgers sustained before the bus accident.

In the new trial, the jury will consider only those injuries actually caused by the bus accident and they may award pain and suffering damages only for those new injuries. That’s a huge win for the defense in that it will be very hard for Rodgers to convince the jury that he sustained any new injuries at all in view of his preexisting condition.

Inside Information:

• Before the accident, plaintiff had been a drug addict and served 12 years in prison for participating in a kidnapping (by the time of trial he had become a productive member of society, working and enrolled in a Ph.D. program at Hunter College).
• Plaintiff claimed unfair surprise too – only three days before jury selection the defense notified plaintiff’s counsel that a defense radiologist would testify that plaintiff’s injuries were preexisting.
• The jury apportioned liability 80% on the city and 20% on the plaintiff and in the new trial that apportionment will stand with the new jury considering only the issues of which injuries (and the amount of damages), if any, were caused by the bus accident.
   

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Ramona Ulerio, a 36 year old homemaker, sustained serious back injuries when she slipped and fell down subway stairs in New York City on October 5, 2002. She sued the New York City Transit Authority claiming it was negligent in its maintenance of the stairway and that its negligence created a dangerous condition. She won her case five years later when a Bronx County jury ruled that it was a missing non-slip plate that caused the accident.

The subway station looked something like this:

The jury then calculated and awarded damages in the sum of $1,500,000, as follows:

• past medical expenses - $30,000
• future medical expenses - $381,322
• future custodial care - $441,163
• future rehabilitation expenses - $214,318
• future pain and suffering - $433,197

Each of the future periods was 20 years.

The transit authority appealed on the basis that the damages awarded were excessive but yesterday the appellate court affirmed the award in its entirety in Ulerio v. New York City Transit Authority (1^st Dept. 2010).

The case is significant and a big win for the plaintiff because Ms. Ulerio had sustained a previous back injury (also in a fall down accident) three years earlier. And her doctor recommended surgery for a disc at L5-S1 that was injured in the first accident. That very same disc was injured in the new accident, in addition to a disc at L4-L5.

So, the defendant argued at trial and on appeal that plaintiff’s injuries pre-existed and were not caused by the 2002 accident, noting also that Ms. Ulerio had even scheduled surgery for her back after the 1999 accident (although later canceled).

The defense urged that any treatment plaintiff claimed she’d need in the future was directly related to the old accident and injury. On the face of it, this sounds plausible; however, there were several facts that led the jury and the appellate judges to believe otherwise:  

• a doctor who treated plaintiff for both accidents testified that the first accident was minor and the second quite major,
• plaintiff was able to maintain all of her usual activities after the first accident but after the second accident she was rendered totally disabled

The treatment after the second accident included extensive physical therapy, epidural injections and two surgeries – a laminectomy at L4-L5 with bilateral foraminotomies and a bilateral laminectomy at L4-5, L5-S1 with L5-S1 fusion.

The L5-S1 fusion was clearly a new and huge injury and in that procedure the doctor fused the two vertebrae together fusing metal hardware and her back now looks like this:

Unfortunately, Ms. Ulerio remained at trial in unremitting pain (despite morphine) and unable to resume her household duties. She could not stand for more than 15 minutes, sleep at night, bathe or dress herself. She needed a cane to walk and wore a back brace at all times. She was diagnosed with failed back syndrome.

Ms. Ulerio’s need to incur future expenses was explained by testimony from her doctors and an economist who concluded that Ms. Ulerio  would require 40 years worth of physical therapy (30-50 times a year), pain management, household help (20 hours a week) and medical testing and care (including additional spine surgeries). They added it all up to more than $3,500,000. The jury agreed that these categories of future expenses would be required but only for 20 years and only in the total sum of about $1,000,000.

Inside Information:

• plaintiff was found to be 30% at fault for her accident so her total recovery is $1,050,000 (not $1,500,000)
• the jury clearly decided that the total verdict should be $1,500,000 and then it “backed into” that figure by awarding odd amounts for each category of damages
• plaintiff had before trial stopped going for physical therapy so the defense argued that there was no reason to believe she’d continue or need it in the future – plaintiff countered that the reason she stopped was she could not afford therapy and the jury’s award would allow this needed care in the future
• the future pain and suffering award ($433,197) was not challenged on appeal (and it would not have been modified downward anyway in view of case precedent we've discussed before, here and here
• the appeal of this important case was handled superbly by noted appellate counsel Brian Isaac

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Gerard Malloy had been an elevator mechanic for many years at 14 Wall Street in Manhattan when, on July 21, 2004, he tripped and fell over an air handler cover that had been left on the floor. He was thrown several feet and struck his back against nearby stairs.

Diagnosed with herniated discs at L3-4, Malloy was forced to undergo fusion surgery.

Here is what the spine looks like after lumbar fusion surgery:

Malloy had been earning $90,000 a year with full union benefits but was never able to return to work due to his injuries. While the building owner and operator denied they were negligent in maintaining the area and creating a dangerous condition, a Manhattan jury disagreed and found them 100% at fault.

On February 4, 2008, the jury awarded Malloy $3,260,000 in damages which included $1,600,000 for his pain and suffering ($400,000 past – 3 ½ years, $1,200,000 future – 25 years) plus $1,064,000 for lost earnings ($344,000 past, $720,000 future – 12 years).

Defendants did not challenge the reasonableness of the pain and suffering awards; nor would any such challenge have been successful in view of prior appellate court decisions (discussed here) and the severity of Malloy’s injuries such as:

• chronic, severe low back pain leaving him totally unable to return to work
• bilateral branch blocks at L1-L4 in which an anesthetic was injected into the spaces surrounding the nerve roots
• insertion of a spinal cord stimulator device which had to be removed after 10 days because it worsened the pain
• implantation of an intrathecal pump which emits a flow of narcotics into the spinal canal

Here is what the intrathecal pump looks like:

The defendants appealed on the issue of whether the lost earnings award should be reduced by social security disability (“SSD”) payments that plaintiff expects to receive in the future.

In one of the last decisions of 2009, the appellate court in Malloy v. Stellar Management ruled that the $100,000 of SSD payments already received by the time of trial should be deducted from the verdict; however, in a victory for the plaintiff the court also ruled that the estimated $400,000 in future SSD benefits should not be deducted.

The operative law is New York’s CPLR 4545 which requires trial judges to reduce a future loss of earnings verdict to the extent that it will with "reasonable certainty" be replaced or indemnified from a collateral source such as social security.

New York’s so-called common law (the law as set forth in court decisions) used to be that a personal injury plaintiff’s damages would not be reduced by the amount plaintiff received from collateral sources such as insurance. Beginning in 1975, the legislature started to chip away at that doctrine – the “collateral source rule” - and each evolving diminution of the doctrine was intended to prevent double recovery by plaintiffs and to curb rising liability insurance costs.

The question in Malloy v. Stellar Management was whether defendants had proven with reasonable certainty that plaintiff would continue to receive future SSD payments.

Since plaintiff was already awarded SSD and the award could be reduced or discontinued in the future only if the Social Security Administration made a new finding of employability (based on new medical evidence) and since plaintiff had argued at trial (based on testimony from his doctors) that he was permanently disabled and unemployable, defendants argued that they met the reasonable certainty test and they should be credited with $400,000 of future SSD payments.

Plaintiff argued that because there was conflicting medical testimony at trial as to whether he was totally disabled from employment, the defense could not meet its heavy burden of proving that it was highly probable the plaintiff would continue to be eligible for SSD benefits. The appellate judges agreed stating that an offset for future SSD benefits was not warranted because the trial record showed that plaintiff’s condition had improved and, although still primarily disabled, he was capable of performing some limited sedentary work.

Inside Information:

• This case drew wide attention shortly after the trial in 2008 when David Golomb, one of New York’s top trial lawyers, skewered two doctors on cross-examination. The doctors had examined Malloy for the defense and issued reports that purposefully omitted information that would have been favorable to the plaintiff. Eric Turkewitz discussed those issues, here, praising Golomb and suggesting that there may have been deception and a breach of ethics by those acting for the defendants.
• Four years before Malloy fell at work, he had been injured in a car accident in which he sustained herniated discs at L4-5 and L5-S1 requiring a laminectomy and fusion. He returned to work three years before his new accident but as part of his new surgery in 2005, the old hardware had to be removed.
• Defendants had also appealed on issues concerning (a) the so-called discount rate to be applied to the portion of the judgment that’s to be paid in installments over the years (under CPLR Article 50-B, certain portions of personal injury verdicts for future damages are to be paid out over time) and (b) whether plaintiff could insist that the annuity to fund the future payments be issued only by a top rated insurance company. Plaintiff’s position was upheld in both instances.
• Sources tell me that while the appeal was pending the parties settled for a $3,000,000 lump sum payment plus between $150,000 and $750,000 more depending upon the outcome of the appeal.

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On April 13, 2003, Sergeant Michael Lauro of the New York City Police Department was performing a station-house security check at his precinct when he slipped and fell in a puddle of water.

After minor treatment, he was diagnosed with a rib fracture (which healed) and back pain. Unfortunately, the back pain never got better, MRIs revealed two herniated discs in his back pressing on spinal nerves and, despite years of treatment thereafter, Lauro could never return to work and remains disabled to this day.

On May 18, 2007, a Queens County jury returned a verdict in the 49 year old plaintiff’s favor finding that his injuries were due to the city’s negligence and awarding him pain and suffering damages in the sum of $810,000 ($160,000 past, $650,000 future). Last week, that verdict was upheld on appeal in Lauro v. City of New York.

The pain and suffering verdict is significant because plaintiff never underwent surgery (his doctor testified he’d require it but that the outcome is totally uncertain). Juries and appellate courts frequently devalue back and neck pain and suffering claims when there’s been no surgical repair.

• In many car accident cases in New York, this type of back injury claim is dismissed without a trial due to the restrictions of Insurance Law Section 5102 which mandates that plaintiffs’ injuries meet a narrow statutory threshold. My colleague, Eric Turkewitz, discusses plaintiffs' frustrations with this law over at New York Personal Injury Lawyer, here.

Mr. Lauro, though, had several factors in his favor which influenced the jury and the appellate judges:

• multiple MRIs over the years after the fall that showed the protruding discs pressing upon spinal nerves (causing excruciating pain)
• markedly decreased range of motion – forward flexion was severely limited to 20 degrees;
• continued prescriptive use of narcotic medication (Vicodin) for credible complaints of unremitting pain resulted in dependence and side effects (including memory loss and lethargy);
• inability to return to work or engage in activities such as camping, biking, swimming or bowling

Inside Information:

• The defense case was impaired severely because of its failure to produce at trial its doctor who had examined plaintiff two years earlier and was expected to testify. Defense counsel claimed the doctor was suddenly unavailable but the trial judge agreed with plaintiff’s counsel that a “missing witness” charge should be made whereby the jury was told it could make a negative inference due to the doctor’s absence. In fact, the defense doctor’s report of his examination supported plaintiff’s injury claims and that, plaintiff’s lawyer urged, was clearly the reason for the doctor’s curious absence.
• Plaintiff had a motorcycle accident in 1989 in which he injured his neck and the defense urged that plaintiff’s current injuries were all related to the prior accident. Plaintiff claimed the prior injuries were minor and the jury agreed apportioning only 2% of the damages to the prior accident and 98% to the current one.
• Plaintiff’s claim that he was permanently disabled from work was credited by the jury which awarded him $1,400,000 lost earnings damages. The trial judge, though, invoked the doctrine of “collateral estoppel” and set aside that award because, when Lauro applied for disability retirement from the city after the current accident, the city’s medical board ruled that while indeed Lauro is disabled the disability resulted from the 1989 accident. Plaintiff successfully urged on appeal that his lost earnings verdict should be reinstated. His eminent appellate counsel, Arnold E. DiJoseph, noting that plaintiff worked for 14 years straight after the 1989 accident and it was only after the 2003 accident that he never returned to work, pointed out that the city stood to gain a great deal by simply shifting blame for plaintiff’s disability to the 1989 incident.

There was only one case cited by the appellate court in Lauro v. City of New York to substantiate the reasonableness of the pain and suffering verdict. In that case, Wimbish v. New York City Transit Authority (2003), an $800,000 pain and suffering verdict ($300,000 past – 8 years, $500,000 future – 30 years) was upheld for a woman in a bus accident who sustained three large herniated discs in her neck. She underwent no surgery but remained in excruciating pain and would require future surgery.

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The concept of  verdicts for future pain and suffering in injury cases is pretty simple: juries are told that if they believe the evidence shows a plaintiff's injuries or disabilities will continue after the date the verdict is rendered, then the jury must award a reasonable sum of money for the plaintiff's future pain and suffering. The jury is also told to determine the length of time the plaintiff is expected to suffer.

In two recent appeals court cases from New York, opposite results were reached as to the issue of future damages. In one, the jury's refusal to award and future damages was upheld; in the other, the jury's refusal was overturned and a new trial ordered. Both cases involved neck and back injuries.

In Delacruz v. Port Authority of New York, the Bronx County jury awarded a 30 year old woman $25,000 for her past pain and suffering (8 years) and nothing at all for the future. Following a trip and fall accident, Ms. Delacruz sustained herniated discs in her back at L4-L5 and L5-S1 as well as a partial tear of her right knee's lateral meniscus and grade 3 chondromalacia, all of which required the following procedures:

• percutaneous discectomy at L4-L5, L5-S1
• partial lateral menisectomy, chondroplasty, arthroscopy of the right knee

Here's what the percutaneous discectomy procedure looks like:

The defense argued that much of Ms. Delacruz's pain and suffering from the accident had been due to  a heavy lifting injury to her back a year before the lawsuit injury and her being grossly overweight at the time of the accident. They also claimed she had fully recovered by the time of trial.

On appeal, the jury's award of $25,000 for past pain and suffering was held to be too low and was thus increased to $75,000. The jury's refusal to award any future pain and suffering damages was upheld. The appellate judges said that it was reasonable for the jury to decline any future damages in view of competing expert medical testimony and a surveillance video of plaintiff.

In Zgrodek v. Mcinerney, plaintiff was injured in a car accident and sustained neck and back injuries each requiring surgery (he also claimed carpal tunnel injuries but the jury rejected that claim). The defendant conceded liability. Under New York's  Insurance Law Section 5102, however, the plaintiff was entitled to recover pain and suffering damages only by proving that at least one of the statute's nine categories of "serious injury" had been met. [This restriction applies only to automobile accident cases in New York and was intended by the legislature to weed out minor whiplash cases.]

The Ulster County jury found that Mr. Zgrodek's neck and back injuries qualified as a "significant limitation of a body, function or system."

The jury declined, however, to award any damages for pain and suffering - nothing for the past and nothing for the future.

Plaintiff appealed claiming that there was an impermissible consistency between the jury's findings that (a) plaintiff sustained a "significant limitation" and is entitled to about $77,000 for past medical expenses and $70,000 for future lost wages but also (b) no damages at all should be awarded for his pain and suffering.

The defense argued that Mr. Zgrodek's spinal surgeries were due to lifelong degenerative changes, not the car accident trauma.

The appeals court agreed with the plaintiff and found that the jury verdict was flawed and that plaintiff is entitled to "reasonable compensation" for his pain and suffering. A new trial was ordered to be held at which time the jury:

• shall award an amount for past pain and suffering and
• may award an amount for future pain and suffering.

We will follow the Zgrodek case and report back upon a retrial or settlement.

Inconsistent damages verdicts in New York personal injury cases are all too common and we will no doubt revisit this issue soon. As new appellate court decisions are rendered, we will report and analyze them.

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When a defendant has been found liable causing for a car accident and the jury verdict includes amounts for past pain and suffering and future medical expenses but nothing at all for future pain and suffering, a new trial is required under New York law.

On August 22, 1996 Lindsay Grobman, then 17 years old, was a passenger in a car driven by Adam Chernoff. After a 30 mph head on collision, Lindsay was left complaining of head, neck and back pain.

What followed over the next four years until the trial of this case in Nassau County, New York was a fairly typical medical treatment scenario in car accident cases:

• pain at the scene, ambulance to the hospital,
• x-rays negative,
• a week or more out of work,
• return to work with pain,
• diagnosis of cervical or lumbar herniated or bulging disks

Lindsay's pain persisted and finally an electroyogram (EMG) indicated nerve damage in her neck.

EMG involves testing the electrical activity of muscles and is often performed with a nerve conduction study to measure the conducting function of the nerves.

Here's what an EMG  looks like:

At trial four years after the accident, Lindsay still complained of the same pain which her doctor said was permanent and caused by herniated or bulging disks in her neck. The defense doctor testified she was fine and not hurt from the accident.

A trial on liability for the accident was held in June 2000 and the Nassau County jury found the driver 100% at fault for the accident. A second jury was directed to try only the issue of damages. In August 2001, the new jury found that Lindsay's neck and back injuries represented a permanent consequential limitation of the use of a body organ or member (one of the prerequisites under New York's Insurance Law Section 5102 before a person hurt in a car accident may recover any pain and suffering damages whatsoever). [My colleague Eric Turkewitz discusses some of the intricacies and nuances of this law over at New York Personal Injury Law Blog]

The jury awarded Lindsay Grobman damages in the total sum of $10,000 as follows:

1. $1,100 for past pain and suffering (four years)
2. $-0- for future pain and suffering
3. $8,900 for future medical expenses (58 years)

The plaintiff appealed, arguing that the verdict was inconsistent in finding a permanent injury and awarding damages for future medical expenses but failing to award any future pain and suffering damages. The appeals court agreed in Ajoudanpour v. Globman and ordered a new trial on damages. Instead, the plaintiff and defendant agreed, as was their right, to submit their case to an arbitrator who then conducted a hearing and in May 2005 rendered an award in plaintiff's favor in the sum of $125,000.

The arbitrator awarded $125,000 for Lindsay's pain and suffering essentially due to herniated disks in her neck that probably looked something like this:

A second and third appeal ensued concerning the arbitration procedure, the timing and amount of interest on the arbitrator's award and whether in general the award should be confirmed by the court. In the latest appeal, the court confirmed the award and reiterated that the jury's failure to award future pain and suffering damages was inappropriate.

This case is one of many in which jury verdicts appear to be inconsistent - either the product of confusion or perhaps too jurors' refusal to follow instructions from the trial judge. In this case, another factor may have been present: the legendary stinginess of Nassau County jurors and the growing trend of jurors disinclined to award significant pain and suffering damages in cases where there's been no surgery and there are few clearly objective signs of the injuries and pain complained of.

No doubt jurors in New York injury cases and elsewhere will continue to be confused in their deliberations and inconsistent in their pain and suffering awards. When they are and the appellate courts step in to issue corrective rulings, we will revisit these issues.

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Deanna Kmiotek was 32 years old on July 8, 2004, sitting in her car at a red light in hometown Amherst, New York when out of nowhere the town's dump truck carrying an 18 ton load smashed into the rear of her car. She was seriously injured and sued the town for her damages.

A judge ruled well before trial that the facts and fault were plain and that the issue of fault need not be addressed at trail; the only issue at trial would be the amount of damages.

Deanna sustained herniations in her back requiring surgery to fuse lumbar discs at L4-5 and L5-S1 with a bone graft from her pelvis and the insertion of two metal titanium rods and six screws. As a result, she could no longer work either at home or as a commercial cleaner and she could no longer pick up her children or give then baths.

Here's what a spine looks like after lumbar fusion surgery:

The town offered $250,000 to settle before trial but the offer was rejected. In November 2007, an Erie County jury awarded plaintiff pain and suffering damages in the sum of $75,000 ($35,000 past, $40,000 future). On appeal in Kmiotek v. Chaba, $75,000 was held to be unreasonably low and $225,000 ($75,000 past, $150,000 future) was found to be the minimum amount the jury could have awarded as a matter of law based on the evidence at trial.

The amount determined by the appellate court as reasonable in this case is strikingly lower than awards in similar cases and the court should have ordered an increase to at least $500,000. 

It cannot be repeated enough that each case, each person, each injury and each recovery  is unique so there's no one guideline or set of numbers to look to when ruling on appropriate pain and suffering damage figures. That said, the appellate courts in New York routinely rule in these cases by looking to prior cases for guidance. 

Had a thorough review of precedent been undertaken and relied upon, it's clear to me that Ms. Kmiotek would have had her paltry $75,000 jury verdict increased to more than $225,000 - say, $500,000 or more. Here are cases that the appeals court did not mention in its decision:

• Baird v. V.I.P. Management Co., Inc. - $700,000 ($400,000 past, $300,000 future) for a Westchester County woman who fell and underwent three surgeries with bone grafts to fuse and repair two cervical discs. Plaintiff in that case testified she was in constant pain and could not work; although she admitted on cross-examination that she had told her doctors before trial that she was improving and in less pain.
• Kihl v. Pfeffer - $1,845,000 ($625,000 past, $1,200,000 future) for a 38 year old passenger in a car accident who sustained a neck injury that required spinal fusion surgery involving the removal of her disc at C2-3 and its replacement with bone from her hip. Unfortunately, surgery made her worse and her doctors had to implant a permanent morphine pump to alleviate her pain.
• Barrowman v. Niagara Mohawk Power Corp. - $3,000,000 for a worker who fell off a scaffold 12 feet down to a concrete floor. He sustained herniated discs in his neck and back requiring spinal fusions with bone grafts. There was evidence that his neck and back injuries would worsen and more surgery would be needed.

                               Here are side and back views of the whole spine:

Inside Information:

• Defense counsel argued in summation that plaintiff sought a big damage award so that the Town of Amherst could buy her a new building. Counsel was playing to the well known reluctance of jurors to render big damage awards against their own municipalities.
• Defense counsel also suggested repeatedly in closing that a 10 year old car accident plaintiff had been involved in somehow caused the injuries plaintiff was suing for in the 2004 accident lawsuit - this despite the fact that the defense offered no proof at all as to any lingering injuries.
• Juries and courts are often affected by and reduce pain and suffering verdicts because of any bits of information as to any prior injuries or accidents. A good example of this is found in Sanz v. MTA-Long Island Bus where an appellate court reduced a jury's award from $750,000 to $400,000 in a cervical fusion case apparently influenced by facts related to an accident eight years earlier.
• Plaintiff's counsel objected to what he called improper, unethical closing argument statements made by defense counsel, such as above, that were intended to influence the jury and the appellate court agreed that the statements were improper.  But not so improper that plaintiff should be afforded a new trial on damages.

The appeals court in the Kmiotek case missed the ball on two counts:

1. Its increase of the paltry $75,000 verdict to $225,000 was much too low in view of plaintiff's debilitating injuries and similar prior sustained verdicts.
2. Second, defense counsel's statements to the jury in closing were outrageous, and should have resulted in a new trial so that a new jury could rule on damages without being affected by improper arguments that clearly influenced them to render such a meager award.

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