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

On July 28, 2005, James Coleman was working as a subway track worker repairing tracks for the New York City Transit Authority (the TA). He was on a hydraulic lift platform that collapsed causing him to fall 25 feet to the ground below.

Workers on a hydraulic lift:

Coleman sued the TA for the serious injuries he sustained to his neck and back, including multiple bulging and herniated discs.

New York's Labor Law Section 240(1) generally imposes absolute liability upon premises owners when a worker engaged in repair work is injured in a height related fall due to inadequate safety devices. Accordingly, summary judgment was granted to Coleman in 2007 and his case proceeded to a damages only trial in 2008.

On November 7, 2008, a Bronx County jury awarded Coleman pain and suffering damages in the sum of $2,100,000 ($600,000 past - 3 years, $1,500,000 future - 20 years). The TA appealed, successfully arguing that the award was excessive.

MRI reports showed that Coleman sustained the following spinal disc injuries:

• herniated disc at C4-5,
• bulging annulus fibrosis at C5-6
• herniated disc at L5-S1.

The defense doctors and attorney argued that plaintiff's injuries were minor and any significant complaints of pain or disability he had were due only to degenerative changes in his spine.

EMG testing and nerve conduction studies, though, showed nerve injuries - radiculopathy at C5 and C7.

Plaintiff testified as to his current pain and limitations:

• constant pain which radiates down his right leg
• still takes narcotic medication
• gets steroid injections for his back pain
• cannot work
• cannot engage in sports he enjoyed such as bowling and basketball
• cannot carry shopping bags

Coleman never had any surgery for his injuries in this case but his doctor recommended that he undergo neck and back surgery - either a discectomy or laminectomy with fusion - if his symptoms continued unabated by conservative treatment.

In Coleman v. City of New York (1st Dept. 2011), the future pain and suffering award was reduced by $300,000. The total pain and suffering award now stands at $1,800,000 ($600,000 past, $1,200,000 future).

The only case on damages cited by the appellate court was Urbina v. 26 Court Street Assoc., LLC (1st Dept. 2007), a knee injury case that we discussed here. That case is not particularly relevant inasmuch as it ordered a reduction of the jury's pain and suffering award in the sum of $3,500,000 to $2,200,000 for a 31 year old man who sustained a severely fractured patella and a torn meniscus that required three surgeries.

Prior cases on damages that are relevant (i.e., that dealt with herniated disc injuries without surgical procedures as of trial) but were not even mentioned by the appellate court include:

• Lauro v. City of New York (1st Dept. 2009) - $810,000 affirmed for 49 year old with herniated discs at L4-5 and L5-S1
• Spetter v. Alliance Towing Corp. (1st Dept. 2009) - $230,000 affirmed for herniated disc at C6-7
• Sanabia v. 718 West 178th Street, LLC (1st Dept. 2008) - $300,000 (reduced from $400,000) for 57 year old with herniated discs at C3-4 through C6-7
• Browne v. City of New York (2d Dept. 2009) - $625,000 (reduced from $750,000) for 33 year old with bulging discs at C3-4 and C4-5.
• Brown v. City of New York (2d Dept. 2008) - $600,000 affirmed for 60 year old with mechanical back pain due to pulp protruding into his spinal canal
• Deshommes v. Hussain (2d Dept. 2008) - $700,000 (reduced from $1,200,000) for 42 year old with herniated disc at L5-S1 with nerve root compression and several bulges

Inside Information:

• The defense doctor, Robert Orlandi, M.D., an orthopedic surgeon, opined that Coleman hadn't even sustained a herniated cervical disc at all, just a sprained neck and degenerated discs predating the accident by many years.He was argumentative, often laughed derisively and made it clear he wasn't going to agree with questions posed by plaintiff's counsel, even before they were asked. The doctor was admonished by the trial judge repeatedly and defense counsel conceded that Dr. Orlandi was a "rather obstreperous witness" who made "wild and unsubstantiated charges" from the witness stand against plaintiff's counsel.
• The jury award for future lost earnings in the sum of $1,500,000 was thrown out by the appellate court because Coleman failed to prove with reasonable certainty that he'd be unable to work and earn at all. The defense conceded that Coleman could not return to heavy labor (he was earning about $45,000 a year with the TA) but pointed out that plaintiff himself never claimed he was completely unable to work and testified he'd tried to work as a mechanic in a motorcycle shop (too strenuous) and inquired about other jobs he thought he could do (no offers). Plaintiff's treating pain management doctor merely testified that he would "venture to say" that plaintiff couldn't go back to work. He was unaware of plaintiff's vocational abilities or education.

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On September 21, 1998,at about 12:30 p.m., Shelton Stewart took the subway train from his job in Manhattan to his home in the Bronx. He got out at the Gun Hill Station and began walking down the subway stairways to the street.

Stewart slipped and fell on what he later claimed was pigeon excrement.

Pigeons are often seen on and around stairways at the city's subway stations:

Stewart, then 47 years old, was rushed to Jacobi Medical Center where he was diagnosed with a cervical contusion and admitted for one month of treatment. He ended up with several spinal surgeries and claimed permanent and total disability from the fall.

Stewart sued the city's transit authority charging it was negligent in allowing the stairway to remain slippery, especially so because this (the pigeon droppings) was a a recurring condition. The defendant vigorously denied liability and argued that plaintiff alone was responsible for his fall.

On December 19, 2007, after many years of contentious litigation, in Stewart v. New York City Transit Authority (Index # 13911/99; Supreme Court, Bronx County), a jury ruled that both the city and the plaintiff were negligent (the defendant 80%, plaintiff 20%).

The jury set Mr. Stewart's pain and suffering damages at $4,700,000 ($2,000,000 past - 10 years, $2,700,000 future - 20 years). That amount, along with loss of earnings and medical expense damages, was subject to a 20% reduction for plaintiff's comparative fault.

The transit authority appealed claiming that there was no way any liability at all should have been assessed against it and, alternatively, that the damage awards were unreasonably excessive and should be reduced.

Last week,  in Stewart v. New York City Transit Authority (1st Dept. 2011), the appellate court affirmed the $4,700,000 assessment for pain and suffering damages.

The court decision sets forth the basics and here are the details of plaintiff's injuries:

• cervical spine compression fractures and contusions at C4-C5
• posterior cervical decompression and laminectomy at C3-C7
• thoracic spine compression fractures at T11-T12
• fusion surgery at C4-C5 with implantation of hardware, plates and screws
• post-operative Methicillin-resistant Staphylococcus aureus (MRSA) infection requiring debridement surgery
• lumbar spine herniated discs requiring lumbar laminectomies and posterior spinal fusion at L3-L5 with six large pedicle screws and plates and an iliac crest bone graft

Lumbar fusion surgery with pedicle screws and bone graft:

Even after all of the surgeries, extensive physical therapy and several epidural steroid injections and nerve blocks, Mr. Stewart remained in great pain and his back muscles were spastic. Ultimately, to pump anti-spasm medication on a continuous basis, his doctors prescribed and surgically implanted a synchronized baclofen pump:

 At trial, plaintiff testified that he was still very much disabled from the accident:

• needs a walker to ambulate
• has spasms in his spine after sitting too long
• has difficulty sleeping, bathing and dressing himself
• was unable to return to his job (as a doorman) nor even an easier pizza deliveryman job that he tried

Plaintiff's medical expert testified that, due to the accident, Mr. Stewart is permanently and totally disabled.

As to damages, the defense focused upon a prior injury. In June of 1997 (a little more than a year before the accident), Mr. Stewart underwent surgery to remove two herniated cervical discs. Plaintiff admitted that before the subject accident he had some difficulty walking dues to weakness in his legs for which he occasionally used a leg brace and a cane until a few months before the fall.

Mr. Stewart had been working without any disability at the time of his fall and his medical expert opined that whatever his prior conditions were, the subway stairs fall was "the straw that broke the camel's back," caused the need for both spinal fusions and the baclofen pump and left him totally and permanently disabled.

Inside Information:

• The defense expert, orthopedic surgeon Phillip Keats, M.D., admitted that he hadn't practiced medicine in seven years, made over $1,000,000 a year from litigation (almost exclusively working for defendants) and 25% of his court appearances were for the New York City Transit Authority.
• Several trial rulings went against the defendant including the limiting of evidence of plaintiff's prior injury to the damages part of the trial (not allowing it to be presented in the liability portion as a cause of the fall) and precluding undisclosed until trial witnesses (city employees who would have stated the stairway was clean and plaintiff said he fell because he missed a step).
• As a result of his doorman and porter jobs, Stewart claimed he'd become a bit of a self-taught expert on pigeon excrement, having seen and cleaned a considerable amount over the years. He was allowed to testify as to color and texture differences between newly deposited and older droppings and what the defendant should and could have done to rid the area of pigeons.
• Plaintiff's attorney was Bob Genis, of Sonin & Genis, well known among New York's trial lawyers as an expert on evidence law (which clearly was a factor in his superb achievements in this case).

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On December 13, 1999, then 40 year old Terry Olmstead was  employed as a shift manager by Pizza Hut of America, Inc.'s franchisee in Chittenango, New York (near Syracuse). While working in the kitchen near a metal work table, Ms. Olmstead received a severe electrical shock when she touched the table surface.

Treated at an urgent care center and a hospital that day and the next, Ms. Olmstead claimed that the shock caused all kinds of pain and disability, especially neck pain, and that as a result she was unable to work for the next month. She returned for three weeks but was unable to continue, left her position and then claimed permanent disability.

Here is a portion of her Bill of Particulars in the ensuing lawsuit, Olmstead v.  Pizza Hut of America, Inc. (Supreme Court, Madison County; Index # 1930-02). Various injuries were set forth in the bill of particulars but by the time of trial the main injury claims were:

• cervical spinal cord and nerve root sprain, strain and pain
• complex regional pain syndrome (RSD)

Plaintiff's attorneys had difficulty identifying the party responsible for the allegedly defective electrical installation and delayed filing suit until December 13, 2002, one day before the statute of limitations was to expire. In 2006, the electrical contractor they sued obtained an appellate court dismissal of the suit against it.

Pizza Hut remained the only defendant but for the second time the case was delayed for several more years because Pizza Hut did not comply with court orders requiring it to disclose information and produce for deposition a witness who had knowledge of the electrical system and its installation.

Pizza Hut could not find anyone to testify as to whether the ground fault circuit interrupter (GFCI) was defective. Modern electrical systems require GFCIs in the form of either outlets or breakers in order to protect people from electrocution.

In April 2009, an appellate court upheld the trial judge's order granting plaintiff's motion to sanction Pizza Hut for its willful failure to comply with discovery demands. Thus, liability against Pizza Hut was established and the trial would address damages only.

Finally, in August 2009, the damages only trial was held. After extensive medical testimony, including three physicians for the plaintiff and two for the defendant, the jury found that Ms. Olmstead was entitled to a mere $2,500 for her pain and suffering (all past).

Plaintiff appealed, claiming that the damages award was grossly inadequate for a case involving complex regional pain syndrome (RSD, or reflex sympathetic dystrophy).

RSD is a chronic, painful and progressive neurological condition that affects the skin, muscles, bones and joints. Its pathophysiology is controversial and there are no widely accepted diagnostic tests for it. Nonetheless, when jurors are convinced that a plaintiff suffers greatly from causally connected RSD, very significant pain and suffering verdicts are rendered and upheld on appeal (for example: $3,100,000 - wrist, $3,500,000 - hip and $950,000 - ankle).

The appellate court, though, in Olmstead v. Pizza Hut of America, Inc. (3d Dept. 2011), upheld the jury's mere $2,500 pain and suffering verdict noting that:

• there was sharply conflicting medical evidence as to the plaintiff's injury and the cause of her current complaints
• plaintiff had significant preexisting injuries
• plaintiff was dishonest about her prior condition and her current limitations

There's more, a lot more, to what caused the jury to award such a small amount for pain and suffering and the appellate court to sustain it. Here are the missing details:

1. In 1989, ten years before this incident, plaintiff sustained traumatic neck pain, headaches, face tingling and numbness and tingling in her arm when she was thrown into a swimming pool on her head. She was treated for these conditions by several doctors that year and the next.
2. Plaintiff did not disclose details of the prior accident and treatment to her treating and testifying neurologist in this case (other than to tell him that her symptoms had not lasted very long).
3. Six months before the current accident, plaintiff treated with a doctor for tingling on her face for two weeks along with neck pain and headaches.
4. At trial, plaintiff was caught in a very serious lie with respect to her bowling activities - she testified that she used to bowl before this incident but that she last bowled in December 1999 because of her new injuries. In fact, she had been bowling regularly since 2003.

 Inside Information:

• Plaintiff's main argument on appeal was that the trial judge should not have allowed the jury to consider the defense that plaintiff's preexisting injuries were the cause of any current or future complaints of pain or disability. Plaintiff contended that the preclusion order partially striking defendant's answer barred any defense related to preexisting injuries.The bulk of plaintiff's brief on appeal was devoted to this losing position.
• Plaintiff's main treating and testifying doctor was Pieter Kark. She treated with him from March 2000 through October 2003. By the time of trial, Dr. Kark admitted that he lost his license to practice medicine due to findings of professional misconduct (here is the latest of three orders issued against Kark by the New York State Board for Professional Misconduct). Kark also admitted at the trial that he had not practiced since November 2004.

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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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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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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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In several unusual sports related cases around the country recently, injured plaintiffs have failed to win any damages. If we count "slam dancing" as a sport then the score is no wins, two losses and two ties (to be broken by trials down the road).

Loss #1: In Fry v. Jolly Roger Rides, Inc. a Maryland jury returned a verdict for the defense finding that an amusement park was not negligent when an errant basketball struck a woman in the head. Chrisitne Fry had been walking at an amusement park pier when a basketball used in a long range basketball shot game deflected off the game's apparatus and struck her. She claimed that a year and a half later she underwent neck surgery because the force of the ball aggravated a pre-existing cervical spine injury.

The defendant had sought a dismissal before trial claiming that there was no way it could foresee such an accident. The motion was denied. No matter. The jury heard testimony that there had been no one injured from the game in five years and that the incident was so unexpected the defendant should not be liable for having failed to foresee it. And so the jury dismissed the case.

• As our friends at Torts Prof Blog suggested, Ms. Fry's husband probably helped the defense with his testimony that he thought the odds of this accident were "one in a million."

Loss #2: In Schoneboom v. B.B. King Blues Club, a New York judge dismissed without a trial the case of a Manhattan concert goer who sustained a torn anterior cruciate ligament in his knee requiring surgery.

David Schoneboom admitted that he knew there was wild, violent "slam dancing" (also known as moshing) all around the heavy metal band concert.

He still went right up to the front near the stage, next to some of the wildest activity. Low and behold, he got bumped by an unknown person and then he sued the club. The judge found that he had assumed the risk of such an occurrence and injury because he knew that the aggressive moshing was taking place and still deliberately placed himself in proximity to it.

Tie #1: In Sweeney v. Bettendorf, an eight year old girl in the stands at a professional minor league baseball game in Iowa was injured when a player lost control of his bat which traveled 120 feet and struck her in the head.

Tara Sweeney was on a field trip organized by her city parks department. Her injury case against the city was initially tossed out by the trial judge but an appeals court has now ruled (5-2) that the case may proceed to trial because the city had a duty to protect the child's safety at the ballpark and that a jury could find that parks employees put her in an unreasonably hazardous location to watch the game.

• Lamenting this type of all too frequent lawsuit, Walter Olson at Overlawyered declares: "This time in Iowa."
• And writing for the Des Moines Register, Jared Strong quotes a dissenting judge: "There is no joy on this day around Iowa's ballparks."
• My prediction: defense verdict at trial.

Tie #2: In Allred v. Capital Area Soccer League, Inc., the North Carolina Court of Appels overturned a lower court's pre-trial dismissal of an injury case brought against a soccer league by a spectator at a game who was struck in the head by a soccer ball before the game even started. Teresa Alford had been in the stands behind one of the goals while the teams were warming up and many balls were being shot by the players towards the goal.

One shot sailed over the goal and hit Teresa casuing severe head injuries.

In discussing the assumption of the risk doctrine, the court noted that the case is at an early stage and the defense has not shown that Ms. Allred's knowledge of soccer was such that she should have known of the inherent risks of being hit by an errant ball. So the judges ruled that this case may proceed. For now.

• My prediction: defense verdict at trial.

These assumption of the risk cases will continue to be brought and they will always be controversial.

There appear to be three schools of thought on these cases:

1. Many who would like to see all of the plaintiffs in cases like the ones discussed here completely barred from the courthouse or, if allowed to trial and they lose, forced to pay the winner's legal fees.
2. Others would would like to see a remedy for every person injured, no matter the fault, no matter the social and economic consequences.
3. Judges who will continue to play a large part in the outcome of each individual case as well as on the impact their rulings have on society at large.

And we will continue to report on these cases and engage in discussions about them.

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As reported by Walter Olson at Overlawyered, a 20 year old Merritt Island, Florida man just won a $76,000,000 jury verdict for damages he suffered as a result of a diving accident in which he broke his neck on the bottom of a shallow river. The pain and suffering component was $52,800,000. He is now a quadriplegic (all four limbs are paralyzed).

Apart from the size of the damages award, this case (Hoffman v. C&D Dock Works) is noteworthy also because of other factors, as reported in local newspapers:

• The young man answered a dare and sprinted down a dock as he jumped into the river.
• The defendant, C&D Dock Works, filed for bankruptcy protection and did not defend itself at trial.
• The defendant claimed there was no negligence because there was a rail at the edge of the water indicating a potential danger; however, a judge ruled last year that the defendant was negligent.

These types of headline cases leave many of our citizens feeling that the civil justice system has run amok. Has it? Phillip Howard, the author of upcoming book Life Without Lawyers, summed up this sentiment well in an op-ed article in yesterday's Wall Street Journal entitled "How Modern Law Makes Us Powerless."

One wonders what it is the dock owner should have done to prevent a 20 year old boy from answering a dare, running down a dock and jumping into a river alongside which he had been working. As the dock company's former owner said: "There's got to be some common sense."

Then there's the damages award. Mind you, I practice traumatic injury trial law exclusively and am always trying to maximize my client's case and to obtain the most in damages that the law allows. And I am keenly aware that no amount of money ever compensates a traumatic injury victim such that it makes the whole thing "worth it." But in my experience I can tell you that there's no way this quadriplegia pain and suffering damage award would be sustained in New York.

The jury awarded of $52,800,000  for this young man's pain and suffering. And that was in addition to awards for so called special damages that are easily calculable: past and future medical expenses in the sum of $23,200,000 and lost earnings in the sum of $672,000.

In New York, juries have awarded tens of millions of dollars to paralyzed victims of negligence only to see the appellate courts substantially reduce those verdicts.

• Brown v. City of New York (2d Dept.; 2000) - $10,000,000 past and future pain and suffering awards for two brothers, 26 and 27 year old rendered quadriplegic and pentaplegic reduced to $4,000,000 each.
• Driscoll v. New York City Transit Authority (2d Dept., 1999) - $10,000,000 jury verdict for past and future pain and suffering for a 19 year old rendered quadriplegic in a subway accident reduced to $2,000,000.
• Cruz v. Long Island Railroad Co. (2d Dept.;,2005) - $28,000,000 jury award for past and future pain and suffering for a  a person rendered a T12/L1 paraplegic reduced on appeal to a total of $12,000,000.

The Hoffman case is on appeal and as I indicated, it's very unlikely that any significant amount will be collected by the plaintiff. Even if the verdict on liability stands and even if the amount of damages is upheld, there remains the issue of payment. It's clear that the defendant allowed this case to be tried without a defense because there was no liability insurance and there are no significant assets from which collection of a judgment can be made. The defendant is now bankrupt, the plaintiff of course remains tragically paralyzed and our system of civil justice has been tested once again.

We will follow this case and report on future developments - both with respect to Mr. Hoffman and with respect to our civil justice system.

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