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

This tragic amputation case was big and important at trial two years ago and now that an appeals court has weighed in, it's still big and important.

We wrote about Gloria Aguilar's case back in 2009, here. Ms. Aguilar, then a 45 year old housekeeper, had been run over by a city bus in 2005 and as a result her left leg had to be amputated above the knee.

In April, 2009, a Manhattan jury awarded her $27,500,000, as follows:

• $16,000,000 for pain and suffering
• $9,500,000 for future medical expenses
• $2,000,000 for her husband's loss of consortium and services 

Gloria Aguilar with her husband and two of their three children:

[Photo from New York Daily News, February 17, 2011]

As we predicted, the $27,500,000 award has been substantially reduced on appeal. Last week, in Aguilar v. New York City Transit Authority (1st Dept. 2011), the pain and suffering award was reduced to $10,000,000 ($5,000,000 past - 3.7 years, $5,000,000 future - 32.6 years).

Additionally, the medical expense award was reduced to $7,000,000 and Mr. Aguilar's claim was reduced to $1,500,000. The total award now stands at $18,500,000.

Even with the appellate court reduction, the $10,000,000 pain and suffering award represents the largest ever approved by an appellate court in New York for a leg amputation.

Some of the details of Ms. Aguilar's injuries are set forth in the appeals court decision. Here are some more:

• her first of 10 surgeries was a below-the-knee amputation of her left leg but, two days later, due to devascularization and necrosis, doctors sawed off further portions of her leg, converting the procedure to an above-the-knee amputation
• within the month, two more revisions of the amputation had to be performed, during each of which doctors sawed away more and more of Ms. Aguilar's left leg
• phantom pain from the severing of the sciatic nerve in her left leg
• her right leg sustained a degloving injury in the area of her heel requiring several irrigation and debridement procedures under general anesthesia and leaving her permanently unable to control her ankle or support her right leg, essentially wheelchair bound and unable to care for her own hygenic needs
• her post-traumatic stress disorder and severe depression, with recurrent nightmares and sleep disorders, were described in detail by an expert psychiatrist who testified that they are permanent and that she needs to continue in the regular care of a psychologist as she's been doing since her initial hospitalization
• extensive medication is needed for pain and depression, including more than a dozen pills a day and a pain patch on her foot

The defense contested liability at trial but in the appeal did not challenge the jury's finding that the bus driver was 100% at fault.

Conceding that Ms. Aguilar's injuries were horrific and life-changing, the defendant argued on appeal that $16,000,000 for pain and suffering was excessive and, in particular, urged that the jury should not have been permitted to make awards for "mental suffering, emotional and psychological injury" in addition to awards for physical pain and suffering.

It was indeed wrong for the trial judge to allow the jury to make separate awards for mental and physical pain and suffering. As the defense suggested, that may have resulted in a higher overall verdict than would have been reached had there properly been only one pain and suffering category.

Defense counsel, however, did not at trial object to the separate awards for mental and physical pain and suffering and, in any event, the appellate judges found that the error was not so egregious as to require a new damages trial. They simply reduced the combined pain and suffering awards by $6,000,000 and held that $10,000,000 is a reasonable sum for all of the (mental and physical) pain and suffering in this case.

There was very little comparable precedent discussed by the parties or cited by the court as to what would be a proper sum for pain and suffering. Bondi v. Bambrick (1st Dept. 2003) appears to be the most relevant. In that case, a $9,750,000 pain and suffering award ($2,250,000 past - 5 years, $7,500,000 future - 50 years) was upheld on appeal for a 35 year old woman in a motorcycle accident who sustained a traumatic below-the-knee amputation of her leg.

Ms. Bondi underwent nine surgical procedures, was in constant pain for which she required many drugs and a pain patch, had pervasive scarring and suffered similar psychological trauma. Ms. Aguilar's attorney, Ben B. Rubinowitz, argued that factoring in the rise in inflation since 2003, the $9,750,000 approved in the Bondi case represents a figure today well in excess of $10,000,000. The appellate judges apparently agreed.

Inside Information:

• Before trial,  Ms. Aguilar was examined by experts retained by the defense in several specialties - orthopedic surgery, rehabilitation medicine, plastic and reconstructive surgery and neuropsychology; however, none of these experts were called to testify at trial.
• Mr. Aguilar's award for loss of consortium and services, even as reduced on appeal from $2,000,000 to $1,500,000, is a record award. In this regard, the appellate decision mentions only the fact that due to the accident he and his wife have been unable to engage in marital relations. Unmentioned were numerous other facts of their daily existence such as his lifting her in and out of the wheelchair, holding her while on the toilet, and wiping, cleaning and bathing her.

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Theresa Capwell was 33 years old and in good health when she started experiencing abdominal pain. She was diagnosed with pancreatitis (an inflammation of the pancreas) and admitted to Westchester Medical Center on September 18, 2000.

Within five days of her hospital admission, Theresa suffered acute respiratory distress and she was placed on a ventilator. On October 4th, she suffered a heart attack and brain damage from lack of oxygen (anoxic brain damage).

As a result of the anoxia, she was in a persistent vegetative state from which she never recovered and Theresa Capwell died 11 months later on September 10, 2001.

A medical malpractice lawsuit followed - Capwell v. Guneratne (Supreme Court, Westchester County, Index #14832/02) - in which plaintiffs (Theresa's husband and their three young daughters) claimed that her brain damage and death were caused by mistreatment of her pancreatitis and mismanagement of her respiratory condition.

Essentially, plaintiffs argued that the doctors at Westchester Medical Center failed to recognize that Theresa's problems stemmed from pancreatitis. Instead, they erroneously suspected and treated her for ovarian cancer. That misdiagnosis led to a cascade of ever worsening medical problems: Theresa got sicker and sicker and ultimately suffered from life threatening respiratory distress that led to a ventilator placement, a tension pneumothorax, a heart attack and anoxic brain damage. Then, death.

The jury returned a verdict in plaintiff's favor on December 12, 2008 finding that the hospital's malpractice had caused Theresa's injuries and they awarded $7,000,000 in damages as follows:

• pre-death pain and suffering - $3,000,000 (11 months)
• loss of consortium - $4,000,000 (11 months)

The defense made a post-trial motion challenging the verdict amounts as excessive. The plaintiffs countered that they were reasonable and asserted their own challenge for the jury's failure to award any wrongful death damages (i.e., economic losses sustained by the family members due to Theresa's death, such as the value of her household services and parental guidance). In a post-trial decision, the judge rejected the defense claim that the pain and suffering award was excessive but agreed that the loss of consortium award was excessive and should be reduced - to $1,000,000.

Also, the trial judge agreed with plaintiffs that there should be a new trial on the issue of wrongful death damages - that is, whether, in addition to causing Ms. Capwell's pre-death injuries, the malpractice also caused her death. If so, her family may be entitled to substantial additional economic damages, most significantly loss of parental guidance for the 7, 9 and 11 year old girls.

The defendant appealed. This week, in Capwell v. Muslim (the name of the case after some defendants were dismissed) (2d Dept. 2011), the appellate court affirmed the trial judge's decision.

Plaintiffs argued, successfully, that $3,000,000 is a reasonable sum for pain and suffering in this case because, as a result of the brain damage until her death 11 months later, Theresa Capwell was:

• confined to her bed
• lived out her days cared for by others in every aspect of her existence
• could not communicate with the outside world beyond facial expressions, hand squeezing, eye movements and following simple commands (like moving her feet)

The affirmance of a $3,000,000 pre-death pain and suffering for a period of 11 months is quite significant. Generally, pain and suffering awards in brain damage cases that are sustained in excess of $1,000,000 involve much longer periods of time, such as:

• Reed v. City of New York (1st Dept. 2003) - $5,000,000 ($2,500,000 past - 6 years, $2,500,000 future - 30 years); 43 year old; brain damage with progressive tissue loss in lobes
• Paek v. City of New York (1st Dept. 2006) - $4,300,000 ($1,300,000 past - 6 years, $3,000,000 future - 40 years); 36 year old; traumatic brain injury with severe cognitive dysfunction
• Weldon v. Beal (2d Dept. 2000) - $5,000,000 ($2,000,000 past - 12 years, $3,000,000 future - 15 years); 26 year old; anoxic brain damage
• Evans v. St. Mary's Hospital (2d Dept. 2003) - $1,800,000 ($800,000 past - 13 years, $1,000,000 future - 31 years); 28 year old; anoxic brain damage

Plaintiffs argued that while Theresa's period of suffering was much less than those in most cases involving multi-million dollar pain and suffering awards for brain damage, the distinctive factor in this case is that the 11 month period represented the remainder of plaintiff's life. Thus, they cited Cepeda v. New York City Health and Hospitals Corp. (1st Dept. 2003) in which $750,000 was held reasonable for an infant who died 12 days after suffering severe brain damage at birth due to medical malpractice. In that case, the court found that the fact that decedent experienced pain and suffering for most of her life was a factor in assessing the pain and suffering award.

Interestingly, neither party discussed the relevance of a recent case - Schaffer v. Batheja (2d Dept. 2010), about which we wrote in detail, here. In that case, the court approved a pre-death pain and suffering award of $2,500,000 for a woman in a coma who was only sporadically aware of her condition (she'd lapsed into a coma due to medical malpractice) for the 4 1/2 years until she died.The distinction between these two cases appears to be that the court determined that Ms. Capwell's level of awareness was much more significant than Mrs. Schaffer's.

The $1,000,000 loss of consortium award was based upon the fact that Scott and Theresa Capwell had enjoyed an idyllic 11 year marriage described by him as "the perfect life." They raised three young girls (Theresa was the homemaker, Scott the bread winner), enjoyed a very intimate relationship and were in "bliss." After the malpractice, for 11 months, their entire relationship consisted of his visiting her in the hospital, touching her face and kissing her in an effort to relax her, playing her favorite television shows and watching her deteriorate and die. The testimony in this regard was quite poignant and the appellate judges declined to disturb the trial judge's reduction of the jury award for loss of consortium from $4,000,000 to $1,000,000.

Inside Information:

• As to pain and suffering, the defense argued not only that $3,000,000 is excessive but also that Theresa was already suffering from numerous underlying health problems when she entered the hospital and that plaintiffs failed to prove she sustained new, different or exacerbated pain and suffering.
• Plaintiffs' law firm, Kramer, Dillof, Livingston & Moore, is widely recognized as one of the top medical malpractice firms in the state.
• The loss of parental guidance claims belonging to Theresa Capwell's three young daughters could add several million dollars more to the plaintiffs' recovery in this case. As much as $1,500,000 has been held reasonable by an appellate court for loss of a young child's parental guidance (Paccione v. Greenberg - 2d Dept. 1998). If the new jury in Capwell v. Muslim finds a causal connection between the malpractice and the death and determines to award parental guidance damages, the size of the awards in this case may break new ground.

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On October 3, 1996, Edith Schaffer, then 67 years old, voluntarily admitted herself to a small psychiatric hospital in Ossining, New York, for an episode of depression and anxiety. The next day, she suffered the first of a series of seizures and was sent to a nearby community hospital for a neurological consult and tests.

Mrs. Schaffer's tragic odyssey began here:

Two days later, due to an undiagnosed critically low serum sodium level (hyponatremia), Mrs. Schaffer lapsed into a coma where she remained until her death on June 6, 2001.

Her husband sued the hospitals and various doctors and on November 6, 2008 a Westchester County jury found that a by-then deceased doctor at the community hospital was fully liable for Mrs. Schaffer’s injuries and death in that he failed to appreciate the significance of her condition which was easily reversible.

We discussed this case, Schaffer v. Stony Lodge Hospital, here, back in January 2009. The trial judge denied the defendant’s motion to set aside the verdict. Now, a decision has been issued on the appeal and the judges drastically reduced the pain and suffering award from $5,000,000 to $2,500,000.

The appellate court decision in Schaffer v. Batheja (the name of case after some defendants were dismissed) does not mention any of the facts upon which the judges relied in reducing the pain and suffering award except for stating that “Mrs. Schaffer was only sporadically aware of her condition” during the 4 ½ years she lay in a coma.

In cases where a plaintiff is comatose or in a vegetative state, her level of consciousness, if any, will be the key to whether and the extent to which a pain and suffering award will be upheld.

Under the leading case of McDougald v. Garber (Court of Appeals,1989), to support a pain and suffering award plaintiff had to prove that Mrs. Schaffer had “some level of awareness.”

We have dug up the underlying facts and arguments as to consciousness that were brought out at trial. Each side relied upon different aspects of the following evidence:

• the testimony of doctors and nurses who treated Mrs. Schaffer over the years
• the testimony of family members who came to visit
• the opinions of medical experts
• notations in the voluminous medical records

Plaintiff argued that Mrs. Schaffer was well aware of her condition and experienced pain in view of evidence that she:

• abducted her shoulder and flexed her upper extremities in response to nail bed pressure
• opened her eyes on occasion and followed people moving in her room with her eyes
• cried and tears came to her eyes often when her family came to visit
• sometimes moved her head on command

The defense argued that there was insufficient proof that Mrs. Schaffer had any level of awareness from the time she lapsed into a coma until her death, based on evidence that she:

• was comatose at all times
• had no ability to communicate or consciously sense any pain
• reacted to painful stimuli only reflexively
• was in a persistent vegetative state in which eye openings can occur when one is not at all awake

As to the amount of the pain and suffering verdict, the defense argued, successfully, that $5,000,000 was unreasonably excessive and that there should be a drastic reduction. Both sides cited numerous cases to support either a reduction of the award or its affirmance; however, the appellate judges cited none.

Here are the main relevant cases, all except one involving pre-death pain and suffering:

• Ramos v. Shah (2nd Dept. 2002) - $450,000 for several days in coma before death from cardiac arrest due to medical malpractice
• Maracle v. Curcio (4th Dept. 2005) - $125,000 affirmed for 40 months of pain and suffering after fall left woman in vegetative state (she never communicated any indication of pain before death)
• Weldon v. Beal (2nd Dept. 2000) - $5,000,000 for 26 year old woman with severe brain damage from medical malpractice in semi-comatose state for 12 years [not a death case - $2,000,000 past - 12 years, $3,000,000 future - 15 years]
• Jump v. Facelle (2nd Dept. 2002) - $1,300,000 upheld for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries and permanent colostomy and bed sores.
• Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. (2nd Dept. 1993) - $650,000 affirmed for infant in vegetative state for eight years before death due to medical malpractice

Mrs. Schaffer’s husband, Paul Schaffer, was awarded $3,000,000 by the jury for his loss of services claim meant to compensate him for his economic loss (i.e., the monetary value of his wife's services as a homemaker) and his loss of companionship or consortium.

The roles of women in the home and the workforce have changed in many ways over the years.

The law recognizes that physically uninjured spouses may suffer losses when their injured husbands or wives) can no longer assist with tasks in the home or provide the love and comfort previously enjoyed. When these factors are present, judges instruct jurors (PJI 2-315 and PJI 2-316) that they should render monetary verdicts in favor of the uninjured spouse.

The appellate court reduced Mr. Schaffer's $3,000,000 jury award to $500,000 simply stating that there was “limited proof as to the value of the services rendered" by Mrs. Schaffer to her husband.

Our review of the underlying facts indicates that the appellate judges were influenced by the fact that plaintiff offered no evidence as to the value of his late wife’s homemaker services loss and simply argued that his $3,000,000 award should be upheld in full in light of a 40 year marriage and his dutiful daily visits until his wife’s death. The defense argued persuasively that Mr. Schaffer’s award should be reduced significantly in view of evidence that the marriage had long been strained with no sexual relations for the 10 year period before the coma.

Inside Information:

• Nurain Batheja, M.D. the internist at Phelps Hospital against whom the jury assessed all of the liability, died in 1997, less than a year after Mrs. Schaffer lapsed into a coma. He was never deposed in the ensuing lawsuit.
• Before trial, a $1,750,000 settlement was reached with defendants Phelps Hospital and one of its doctors and plaintiff dropped his claims against Stony Lodge and all other defendants except Dr. Batheja. Under New York’s General Obligations Law Section 15-108, therefore, the $3,000,000 appellate award will be reduced by the $1,750,000 pre-trial settlement to $1,250,000.
• The appeals court also upheld $557,485 in medical expenses but there are Medicare and Medicaid liens related thereto

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On February 5, 2002, Diane Garrison, a 44 year old housewife, was involved in a high speed motor vehicle accident in Ulster County, New York. The other driver admitted his liability for the crash in which Ms. Garrison's head struck the window of her car's door.

Only a huge impact can smash a car window:

Complaining of headaches and neck pain, Ms. Garrison was transported by ambulance to the hospital where she was treated and released in the absence of any findings of a fracture or other serious injury.

For the next six months, Ms. Garrison sat home in a chair with worsening headaches and neck pain. She was diagnosed with post-concussive syndrome; however, there were no objective medical tests that conclusively established the basis for her complaints.

Nonetheless, Ms. Garrison sued the other driver and, in a damages only trial, on December 22, 2008 the jury awarded her pain and suffering damages in the sum of $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years). That award has now been affirmed on appeal in Garrison v. Lapine (3rd Dept. 2010).

During the years after her accident, medical tests, including an MRI, a Magnetic Resonance Angiography ("MRA") and an Electroencephalogram ("EEG"), failed to reveal objective proof of any neurological damage. Finally, in June 2008, six years later (and only six months before trial), a four day ambulatory EEG showed spiking activity, cerebral dysfunction and electrical short circuiting in Ms. Garrison's brain's frontal and left temporal lobes.

Imagine walking around with these EEG wires attached for four days:

The new EEG result, her doctors testified, was conclusive proof that she had indeed suffered a traumatic brain injury ("TBI") of her left temporal lobe and diffuse axonal injuries that were responsible for her erratic behavior and disabilities which included:

• crying and saying wildly inappropriate and odd things
• trying to jump from moving cars on several occasions
• wandering into the street at night in her underwear
• stuttering and speaking in incomprehensible letters and words (Broca's aphasia and dysprodic speech)
• inability to socialize, cook or clean house
• constant fatigue
• unremitting headaches

The defense contended that plaintiff's problems were unrelated to the accident and were instead due to outside emotional factors such as the stress of caring for a relative with Alzheimer's or pre-existing anxiety and tinnitus. Furthermore, the defense argued after the verdict that $2,500,000 was an overly excessive pain and suffering award.

Denying a post-verdict motion by the defendant to reduce the pain and suffering award, the trial judge issued a decision on June 29, 2009 that was detailed and well researched. In particular, the Hon. Richard M. Platkin relied upon Popolizio v. County of Schenectady (which we discussed, here), an appellate court decision issued on May 21, 2010, in which $2,100,000 was found to be an appropriate pain and suffering award for a 56 year old man with TBI from a similar car accident.

As with Ms. Garrison, Mr. Popolizio's injuries did not result in a skull fracture or surgery and the MRI was negative. In both cases, plaintiffs sustained diffuse axonal injuries, suffered from many of the same symptoms (difficulties in cognitive and executive functions, depression, headaches and lack of energy) and disabilities (as to work and social life).

The $2,500,000 sustained award for TBI pain and suffering in Garrison v. Lapine is significant because, as we discussed here, here and here, most pain and suffering verdicts in TBI cases that exceed $1,000,000 and that are sustained on appeal involve one or more of the following:

• a skull fracture
• brain surgery
• significant bleeding in the brain or
• anoxia (lack of oxygen) at birth leading to paraplegia or qudriplegia

Inside Information: The jury's $400,000 loss of consortium award to Ms. Garrison's husband was sustained on appeal despite the fact that after the accident he had left the marital home for several weeks (after Ms. Garrison threatened to kill him) and he had been separated from her for 18 months before the accident.

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A 35 year old healthy construction worker was helping to build a new Lowe's Home Depot in Orangeburg (Ulster County), New York on November 14, 2002 when he fell off the roof 22 feet striking his head on the ground below.

After 63 days in the hospital (57 of them in a coma), 11 surgeries and 65 more days in a rehabilitation hospital,  Robert Doviak was left totally and permanently blind, with a sense of touch that was seriously compromised, partial loss of hearing and no sense of smell or taste. Additionally, he had substantial orthopedic injuries including fractures of his left femur, several cervical vertebrae, both zygomatic arches and other bones in and about his face and eyes, his left hand and his right wrist.

Doviak's wife hired Finkelstein & Partners, a well known personal injury law firm in Newburgh, New York and they began a lawsuit against Lowe's and others based on New York's Labor Law which provides that owners of commercial buildings under construction are liable for injuries suffered by workers when they involve falls from heights. A judge granted plaintiff's motion for summary judgment on liability grounds and the case then proceeded to a jury trial to determine the amount of damages.

In Doviak v. Lowe's  Home Centers, Inc., an Ulster County jury found that plaintiff was entitled to $1,000,000 for his pain and suffering ($200,000 past; $800,000 future - 32 years) plus additional amounts for his lost earnings and medical expenses and his wife's loss of consortium. The jury's total award for all elements of damages was thus $3,700,000.

Since each element of a future damages verdict that is more than $250,000 must under New York law (CPLR 5014) be calculated to present value (usually resulting in a significantly lower figure) before a judgment is given to a plaintiff,  the $3,700,000 jury total really represented only about $3,000,000 for the plaintiff.

In a post-trial motion, the pain and suffering award was found by the trial judge to be unreasonably low and a new trial was directed to be held unless defendants agreed to increase the pain and suffering sum to $4,100,000 ($1,200,000 past and $2,900,000 future). Plaintiff appealed and the appeals court this week (properly relying, in part, on Villaseca v. City of New York, a loss of vision case we discussed here) added another $1,000,000 to plaintiff's future pain and suffering award which is now $5,100,000 ($1,200,000 past; $3,900,000 future). The new total (including the earnings, medical expenses and consortium claims) is $9,300,000 - a present value of about $7,000,000.

As always, and especially in catastrophic injury cases like this one, no amount of money ever makes  the injured plaintiff feel like the whole thing was worth it. Neither $7,000,000 nor $100,000,000 would be enough for any sane person to undergo what Robert Doviak has undergone and will suffer with for the rest of his life.

Now for the inside information. During the trial, the defendants offered on the record to settle for a present value of $9,250,000. Plaintiff's then attorney, without plaintiff present, rejected that offer on the spot. The next day, the defense increased the settlement offer to $10,000,000. Again it was rejected. Finally, still before the verdict, the defense made a final settlement offer -  $12,000,000. Doviak says the offer was rejected by the Finkelstein firm without bothering to consult him.

Did Doviak's lawyers fail to inform him of the $12,000,000 offer?

After the trial, the plaintiff fired Finkelstein and hired two new firms. Levy Phillips & Konigsberg (a New York City personal injury law firm best known for its extensive advertising about and its mass representation of plaintiffs in asbestos exposure lawsuits) was hired to handle the appeal decided this week. Another firm was hired to sue the Finkelstein firm for malpractice. In the malpractice suit, Finkelstein & Partners admits that the $12,000,000 offer was made but denies it acted improperly.

Doviak and his new attorneys are claiming that errors were made by Doviak's trial counsel which cost Doviak  $7,000,000 ( the difference between the settlement offer and the final appellate court figures). Here are some of the matters relevant to the ongoing malpractice dispute:

•  significant settlement offers must be conveyed to clients and if rejected then the rejection should either be on the record or in writing (with a full explanation of the consequences also on the record or in writing)
•  attorneys (and their injured clients) should not let greed serve as the foundation of a personal injury lawsuit - during summation, Doviak's attorney asked the jury to award Doviak $60,000,000 for pain and suffering, an amount Doviak's new attorneys say is preposterous and evidence of awful advocacy and which defense counsel says revealed the greed that served as the foundation of plaintiff's case

As the attorney malpractice case progresses (and surely it will move quickly now that the appeals court has ruled on the propriety of the verdict figures), we will report on claims, defenses and developments.

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On December 18, 2008, University of Mississippi's basketball coach, Andy Kennedy, was arrested in Ohio for assault following an altercation with Mohammed Jiddou, a Cincinnati cab driver. The criminal trial is set for April 20, 2009.

But that's not what's prompting this post. What's blogworthy here is the lawsuit the coach filed the day after his arrest: he sued the cabbie for defamation claiming that the cabbie's statements to the media (repeating the allegations he made to the police that formed their basis for the arrest) were false and malicious and caused a barrage of media coverage causing the coach "significant distress" entitling him to money damages.

Bear with us, here comes the point: three days later, the coach brought his wife Kimber into it and they filed an amended complaint adding a claim for loss of consortium. The amended complaint states that as a direct result of the false and malicious statements made about Coach Kennedy, Kimber Kennedy has suffered a loss of consortium with her husband.

And the media reaction has been: you've got to be kidding coach. And I must say I agree.

This loss of consortium claim is ridiculous, frivolous and worthless. Here's why:

• filing a defamation suit one day after his arrest leads many to conclude that the filing was not genuine but instead a strategic ploy, a quick fire reaction
• it's unlikely any significant money could ever be recovered from the cabbie, even if the coach were to win his defamation lawsuit
• filing the loss of consortium claim three days later as an amendment also smacks of a strategic ploy, a measure designed to focus away from the assault and on to the poor coach and his wife and their alleged damages

I don't buy it and don't think anyone but the coach, his wife and their attorneys believe there's any merit to the consortium claim. Nor do some local observers, such as Legal Schnauzer, who refer to Mrs. Kennedy as "hot" and "scorching" suggesting that there's no way this overachieving in the wife department fellow could have a claim for loss of consortium!

One Ohio attorney reports here that the loss of consortium claim is a speculative one, related to the decreased or limited sexual activity between the injured party and the spouse and the decreased or limited care, companionship and affection between them. It's therefore to be expected that the loss of consortium claim may make the parties' sexual activity fair game for questioning and exposure.

Well fair game it is and local media have jumped all over this story, for example here, here and here. And it's caught the attention of scholars nationwide too, such as Walter Olson at Overlawyered.

Counsel for the coach, Richard L. Katz (who is the founder of KMG Sports Management, an agency for professional athletes and college coaches), howls that the focus on the sexual element of Mrs. Kennedy's claim is irresponsible and that his client would not file a claim for that, nor would his wife. But counselor: that appears to be just what  you did file on behalf of your clients.

In all due respect, counselor, if you didn't want any focus on your clients' sex life then you shouldn't have filed the loss of consortium claim to begin with. As I've said before, this claim is rarely significant without accompanying devastating physical injuries. And that you simply don't have in this case.

We will follow this case and report on its conclusion - which could all come as soon as next month.

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Loss of consortium is the term most often used by judges and lawyers to refer to the claims of physically uninjured spouses in personal injury cases brought by their physically injured mates. The claim arises when a physically injured person cannot as a result provide his or her spouse with the services, companionship, love, affection and sexual relations enjoyed before the accident.

The loss of consortium claim is usually not a significant one unless the physically injured spouse has suffered a devastating, long-lasting injury such as paralysis, incontinence, loss of sexual function or inability to walk.

Judges in New York tell juries in personal injury cases that in determining the loss of consortium damage amounts they are to consider following factors and traits of the physically injured spouse:

• disposition and temperament
• social life
• services rendered in supervising the household
• acts of affection, love and sexual intercourse

It's obvious that these elements of the claim are vague and I can tell you from experience that juries often misunderstand them. As a result, loss of consortium awards range from shockingly low or even nothing at all to amazingly high. The appellate courts do not hesitate to exercise their powers, in New York under CPLR 5501, to increase or decrease loss of consortium verdicts when they find the amounts awarded deviate from what is reasonable compensation.

Here are some of the higher awards sustained in New York for loss of consortium claims:

• Villaseca v. City of New York (Appellate Division, 1st Dept., 2008) - a Bronx County jury awarded Diane Villaseca $1,800,000 for her loss of consortium claim in connection with an $8,000,000 pain and suffering award for her husband who suffered loss of vision after nine surgeries (his pain and suffering claim was reduced to $5,000,000, as we noted previously here). On appeal, Ms. Villaseca's award was reduced to $750,000 ($250,000 past, $500,000 future), with the court noting that she had assumed full responsibility for household chores, cooking and helping her husband move about.
• Bissell v. Town of Amherst (Appellate Division, 4th Dept., 2008) - an Erie County jury awarded Sherry Bissell $3,000,000 for her loss of services claim ($1,000,000 past, $2,000,000 future) in connection with her husband Peter's fractures of his lumbar vertebrae from a workplace fall that left him paralyzed, incontinent and sexually dysfunctional. Ms. Bissell took over all aspects of her husband's hygienic care. The appeals court reduced her award to $1,000,000 ($250,000 past, $750,000 future).

• Hopper v. Regional Scaffolding & Hoisting Co., Inc. (Appellate Division, 1st Dept., 2005) - a Bronx County jury awarded Laurel Hopper $1,500,000 ($300,000 past, $1,200,000 future) in connection with her husband Bill's spinal injuries from an elevator hoist drop. He underwent a T10-12 laminectomy and suffered ruptured blood vessels that led to a spinal cord stroke. He was left in constant pain, incapable of sitting long and with frequent urinary urge. His wife became his caregiver. His prognosis was poor and the $1,800,000 pain and suffering award was upheld on appeal and the loss of consortium award was reduced to $800,000 ($200,000 past, $600,000 future).

In some cases, juries have awarded nothing at all, or too little. For example, in Barnaby v. Gold Construction Corp. (Appellate Division, 1st Dept., 2008), the judge in a non-jury damages only trial in Bronx County awarded nothing at all to the spouse and only $50,000 to a laborer who fell at work sustaining a fractured ankle and torn meniscus in his knee. A new trial was ordered because the judge failed to state why he didn't make an award for loss of consortium, especially in view of the fact that Ms. Barnaby was left with a spouse largely confined to their home and unable to do any household chores.

Don't get the impression that loss of consortium claims are often in the $750,000 to $1,0000,000 range. They aren't. Typical awards in significant but non-catastrophic injury cases are more along the line of the following cases:

• Orlikowski v. Cornerstone Community Federal Credit Union (Appellate Division, 4th Dept., 2008) - $15,000 (injured spouse awarded $200,00 for discectomy and future spinal fusion)
• Vertsberger v. City of New York  (Appellate Division, 2nd Dept., 2005) - $85,000 (injured spouse awarded $1,4000,000 for shattered elbow)
• Courtney v. Port Authority of New York (Appellate Division, 2nd Dept., 2007) - $100,000 (injured spouse awarded $1,050,000 for lower leg compartment syndrome, foot drop and several surgeries)

Insider's Tips:

1. When there's a divorce or the spouses separate after the accident, the loss of consortium claim will be negatively affected. There's no spousal claim for the time period after the separation and any award for the prior time when they were together will likely be much less than had the jury not known about the marital strife. Savvy lawyers will either avoid adding the loss of consortium claim at all or they will try to get the uninjured spouse to drop the claim. Jurors do not want to hear about the divorce or the separation. As Maryland attorney Ron Miller has noted, they want to see the spouses sticking together "for better or worse."
2. Usually, a loss of consortium claim is included in (i.e,, derivative of) a personal injury claim and counts toward the limit of liability under any applicable liability insurance policy. In some cases, though, for example in Tennessee under the Government Torts Claim Act, the loss of consortium claim is separate. (h/t Day on Torts)

Tidbit:

Loss of consortium claims began in England in 1846 via statute as Lord Campbell's Act and were originally paired in a Latin expression: "per quod servitium et consortium amisit,"  translated as "in consequence of which he lost her society and services."

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