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

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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