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

On October 3, 2003, Clyde Davison stumbled and fell from the subway platform onto the tracks at Franklin Avenue in Brooklyn. Luckily for him, there was no train in the area and a police officer responded quickly finding the 50 year old man face down near the third rail apparently intoxicated.

Within a few minutes, before Davison could be moved, a train entered the station at about 20 miles per hour and its contact shoe clipped Davison severely injuring him causing fractures of his clavicle and scapula.

Here is a typical clavicle fracture:.

In the ensuing lawsuit, the transit authority was found 70% at fault for plaintiff's injuries and Davison was charged with 30% of the fault.

The trial judge disagreed and dismissed the case reasoning that plaintiff was the sole proximate cause of his state of intoxication and that he unreasonably and unforeseeably disregarded the police officer's instructions to get up and away from the tracks. On appeal, though, in Davison v.  New York City Transit Authority (2d Dept. 2009), the 70/30 split was reinstated.

Finally, in 2010, a damages only trial was held.

The jury heard testimony from plaintiff and doctors for both sides describing the nature of Davison's clavicle and scapula injuries and their effect on his life. They rendered a pain and suffering verdict in the sum of $216,000 ($150,000 past - 6 years, $66,000 future - 22 years).

The plaintiff appealed, this time claiming that the jury's award was inadequate and should be increased.

In Davison v. New York City Transit Authority (2d Dept. 2011), the appellate court has now agreed with plaintiff again and ordered an increase in his award from $216,000 to $450,000 ($275,000 past, $175,000 future).

The net award to plaintiff, in view of his 30% comparative negligence, is $315,000.

The decision merely mentioned that plaintiff sustained fractures of his clavicle and scapula. Here are the details of Davison's injuries:

• comminuted fracture of the left clavicle requiring surgery to repair with a steel plate and screws
• comminuted fracture of the left scapula requiring  surgery to repair with two steel plates and screws
• 27 day hospitalization
• outpatient hospital physical therapy for two months
• severely restricted movement and pain in the left arm with inability to perform normal household chores

X-Ray showing the scapula after surgery like the one underwent by Mr. Davison:

The defense argued that the jury's award was adequate because plaintiff's fractures had healed, he was not suffering from any significant disability, he had no medical treatment for his injuries since August 2004 and any pain he still suffered from at trial was from prior unrelated injuries (of which there were many, including eight motor vehicle accidents and one that required neck surgery).

We've discussed clavicle and scapula injuries before, here and here.

Inside Information:

• Defendant had offered $250,000 to settle the case before beginning the trial (a pretty good approximation of how the case would end up).
• At the damages trial, plaintiff was cross-examined concerning his alcohol use (he admitted he had a history of chronic alcoholism) and his drug use, matters objected to at trial and on appeal but ultimately not addressed by the appellate court.

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On August 22, 1998 Enrique Isaac was driving on Linden Boulevard near its intersection at Ashford Street in Brooklyn. He collided with a left turning city bus and ended up with several substantial orthopedic injuries.

At trial, the then 53 year old plaintiff was awarded pain and suffering damages in the sum of $2,250,000 ($1,500,000 past - 9 years, $750,000 future - 20 years).

The defense claimed that the award was excessive and the appellate court has agreed.

In Isaac v. New York City Transit Authority (2d Dept. 2011), the award was reduced by $450,000  as follows:

• past pain and suffering reduced from $1,500,000 to $1,200,000
• future pain and suffering reduced from $750,000 to $600,000

The court's decision omits any reference at all to the nature of plaintiff's injuries. We have uncovered the facts.

From the scene of the accident, plaintiff was taken by ambulance to a local hospital where he was admitted for five days and then transferred to another hospital where he was admitted for an additional two weeks. Plaintiff underwent three open reduction internal fixation (ORIF) surgeries in which metal plates and screws were inserted:

1. Hip: acetabular hip socket fractures  (wire, plates and screws to fix)                                                
2. Shoulder: proximal humerus fracture reduced by the use of wires and screws                           
3. Hand: fractures of the base of the 2nd, 3rd and 4th metacarpals (plate and screws to fix)

Plaintiff argued on appeal that the jury's award was reasonable and not at all excessive, in view of the foregoing as well as the facts that he:

• was confined to a wheelchair for three months and to his home for eight months
• had continuing pain in his legs with cramps awakening him 2-3 nights a week
• could no longer enjoy softball, soccer and basketball

The defense countered arguing that Mr. Isaac made a good recovery, was left with only a moderate disability of his hip and that he:

• stopped taking pain medication six months after the accident
• returned to work (as a hospital housekeeper) 11 months after the accident
• stopped all medical treatment for his injuries six months after the accident

The appellate court decision approvingly cites five prior cases:

1. Conley v. City of New York (2d Dept. 2007) - $200,000 (increased from $14,000) for a 74 year old woman with an intra-articular wrist fracture requiring surgery
2. Biejanov v. Guttman (2d Dept. 2006) -  $600,000 (reduced from $1,050,000) for a four year old boy with fractures of his thumb and index fingers requiring surgery, leaving him with ulnar nerve damage
3. Muff v. Lallave Transp. (3d Dept. 2004) -  $800,000 for a 36 year old man with bilateral wrist fractures, crushed pinky finger and fractured shoulder, requiring six surgeries (including a wrist fusion)
4. Jansen v. Raimondo & Son Constr. Corp. (2d Dept. 2002) - $750,000 (reduced from $1,030,000) for a 36 year old man with severe bilateral shoulder injuries (subluxation and dislocation) requiring two surgeries, fractures of his humerus and clavicle and bilateral carpal tunnel syndrome
5. Dooknah v. Thompson (2d Dept. 2000) - $200,000 (increased from $50,000) for a 61 year old man with nondisplaced fractures of his acetabulum and pubic ramus (might need hip replacement surgery in the future)

The court did not address a case that plaintiff cited that appears to be relevant - Lukas v. Trump (2d Dept. 2001). Mr. Lukas had been afflicted with polio since the age of 17 and could walk only with the assistance of crutches and braces. At the age of 60, he fell due to defendant's negligence and sustained a fractured hip that required surgery to insert screws and a metal plate into that portion of his femur that met his pelvic bone. As a result, he was confined to a wheelchair and could no longer walk the way he used to (with crutches and braces). The jury's pain and suffering award of $1,300,000 was affirmed on appeal.

Inside Information:

• Plaintiff had consumed a cup of Jamaican rum a half hour before the accident. While his attorney successfully argued that the hospital blood alcohol results should not be admitted in evidence, the defense was able to argue that it was obvious Mr. Isaac had been drinking alcohol.
• Fault for the crash was apportioned equally with the result being that plaintiff collects one-half of the damages assessed.

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On September 7, 2005, Courtney Graves was on the Franklin Avenue shuttle train heading to orientation before the start of her sophomore year at Sheepshead Bay High School in Brooklyn. She never made it; instead ending up at the hospital after the train derailed and she was slammed against he window sustaining injuries to her back and shoulder.

Here's where Courtney was headed:

The train operator admitted liability for the accident but the amount of damages could not be agreed upon so a trial was held in 2009 in Graves v. New York City Transit Authority (Supreme Court, Kings County; Index # 11185/06).

After hearing testimony from orthopedic surgeons for both sides, as well as from Courtney and her mother,  the jury awarded pain and suffering damages in the sum of $350,000 ($200,000 past - 4 years, $100,000 future - 5 years).

Plaintiff's pain and suffering award has now been affirmed in Graves v. New York City Tr. Auth. (2d Dept. 2011), a decision that failed to reveal any of the injuries.

Here are the details of the injuries Courtney sustained:

• herniated disc at L5-S1 with radicular symptoms of nerve injuries
• glenoid labrum tear in right shoulder
• trigger point injections
• hydrodiscectomy surgery

Hydrodiscectomy is a minimally invasive, same-day procedure that uses a high-speed water stream to remove herniated discs. Using a fluoroscope to project live x-ray pictures onto a monitor, the surgeon places a high velocity fluidjet instrument within the spinal disc without using a large incision (and usually under local anesthesia).

Previously very fit and a member of her school's basketball and track teams, Courtney was unable at all to resume any sporting activities.

Courtney missed school for a few days just after the accident and almost two months in March and April 2007 at the time of her surgery. Unfortunately, her back and shoulder pain remained. While Courtney graduated high school on time in June 2008, she was unable to continue her nursing school education (she was unable to sit for long periods) and took a leave of absence in June 2009.

Courtney's doctor testified that her injuries are permanent and may require two surgeries:

1. a lumbar discectomy and
2. surgery to repair the labral tear.

The labrum is a soft ring of cartilage surrounding the shoulder socket (the glenoid) and it acts as an anchor to hold the bones together in the joint.

Inside Information:

• The defense doctor stated that plaintiff had undergone an ill-advised overly conservative course of physical therapy that thwarted her recovery. He also was of the opinion that Courtney won't need any more surgery.
• In closing, defense counsel acknowledged the defendant's responsibility for the accident but stated that "the results were not entirely significant" and asked the jury for a total pain and suffering award of $50,000.

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In 2009, a Manhattan jury awarded 54 year old plumber Bill Bouzas $10,000 for his pain and suffering (past - 2 years, future - zero) after a slip and fall accident left him with a dislocated shoulder and rotator cuff tear surgery.

Shoulder dislocation:

Rotator cuff tears can be degenerative and caused by repetitive rubbing of bone spurs:

We discussed the Bouzas case, here, and as we predicted, the trial judge's refusal to modify the verdict upward was appealed.

Last week, in Bouzas v. Kosher Deluxe Restaurant (1st Dept. 2011), the $10,000 award was deemed inadequate and the appellate judges:

1. ordered an increase to $100,000 for past pain and suffering and
2. affirmed the jury's refusal to make any award  for future pain and suffering

The issues on appeal were not uncommon - to what extent a plaintiff may recover pain and suffering damages when there's evidence that he:

• previously injured the same body part (here, the shoulder) or
• had pre-existing significant degenerative changes in the area.

There was no question that Bouzas's  shoulder was dislocated in the fall. Shoulder dislocations are very painful and they must be reduced (put back into place), often, as here with a very painful manipulative procedure.

The defense contended that the medical evidence showed the rotator cuff tear pre-existed the fall, was due to degenerative disease of the joint and was not related to the slip and fall trauma. Excerpts from the medical testimony (treating orthopedic surgeon Mark Klion, M.D. and the defense expert Jerry Lubliner, M.D.) are included in the defendant's brief on appeal, here.

Plaintiff testified that he had no prior shoulder problems or limitations whatsoever but that since the accident he can't lift his arm straight up, doesn't have nearly the strength he used to and is significantly restricted in his job - especially so as to the overhead work often required in plumbing. The jury, though, was evidently persuaded by plaintiff's own surgeon's records which showed that he already had "extensive degenerative changes" in his rotator cuff.

The appellate court cited two cases as to damages.

1. Shifrel v. Singh (1st Dept. 2009) - a 49 year old man's $5,000 pain and suffering award (all past - 4 years) was ordered increased to $50,000 (all past) after a car accident and torn rotator cuff surgery. The defense argued and the court noted that the jury was entitled to decline to make an award of future damages in view of the testimony of the  defense biomechanical engineering expert that it was unlikely plaintiff struck his shoulder on the steering wheel in the accident.
2. Miller v. Tacopina (1st Dept. 2006) - a 27 year old man's $10,000 pain and suffering award ($5,000 past, $5,000 future) was ordered increased to $80,000 ($40,000 past, $40,000 future) after a car accident left him with a mild separation of the acromioclavicular joint in his shoulder that did not require surgery.

Inside Information:

• Defense counsel stated in his summation: "At absolute best, this is a pre-existing injury. It was aggravated, okay." Plaintiff argued on appeal, unsuccessfully, that this was a major concession that required an award for future pain and suffering. The defense position was that it was responsible only for the dislocation, which had been fixed and from which plaintiff had recovered, and there were no continuing or future damages.
• New York law is clear that one may recover damages for any increased disability or pain from an accident that aggravated a pre-existing condition and judges routinely instruct juries to this effect along the lines of Pattern Jury Instruction 2:282.
• Plaintiff consulted with an orthopedic surgeon, Robert Marx, M.D., prior to the one who operated on him. Dr. Marx, not called to testify at trial, confirmed in his report that an MRI showed plaintiff sustained in the fall an "acute-on-chronic massive full thickness tear of the rotator cuff.
• There was no claim for lost earnings in this case.

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Rosalie David, a 57 year old schoolteacher, was a front seat passenger in a car driven by her husband on January 25, 2003 in Cortlandt Manor, New York. Waiting to make a left turn, their car was rear ended by a car driven by Dennis Astrologo.

Complaining of pain in her right shoulder, Mrs. David was taken by ambulance to the local hospital where she was x-rayed (negative), treated (with a sling and pain medication) and released.

She followed up with an orthopedic surgeon three days later and he immediately ordered an MRI which revealed a full thickness rotator cuff tear.

A week later, Mrs. David underwent surgery to repair her rotator cuff.

In the meantime, on February 3, 2003, Mrs. David retained lawyers to pursue her claim for injuries arising out of the accident. They filed suit on June 9, 2003. Mistakenly, though, the lawyers filed in the wrong court - the Civil Court of the City of New York, a court in which the maximum recovery is $25,000.

When her lawyers realized their mistake, it was too late. They sought permission from the Supreme Court to transfer the case to that court but their application was denied and that denial was upheld on appeal.

She then engaged new counsel and successfully sued the lawyers for malpractice. In that case (David v. Mallilo & Grossman (Supreme Court, New York County, Index # 107490/06), a motion for summary judgment was granted in plaintiff's favor and upheld on appeal - it was easily determined that the law firm committed malpractice.

A trial was then held in which, as in all attorney malpractice cases, plaintiff then had to prove that she would have won her underlying car accident lawsuit. Further, she had to prove what her financial recovery would have been.

The liability element was easily resolved in Mrs. David's favor (this was a rear-ender car accident) but the issue of damages was hotly contested before the trial judge awarded pain and suffering damages in the sum of $250,000.

It turns out that five days before the car accident Mrs. David bruised her right shoulder in a minor slip and fall incident and that she sought medical attention from noted orthopedic surgeon, Jacob D. Rozbruch, M.D., the day before the car accident. He diagnosed her with acute bursitis, arthritis and a possible rotator cuff tear. He injected her with lidocaine and kenalog.

At trial, Dr. Rozbruch testified that it was the car accident alone that was the immediate cause of the rotator cuff tendon tear because of the significant change in her examination between her initial visit the day before the car accident and her subsequent visit a few days thereafter. He said that before the car accident Mrs. David's muscle strength was perfectly normal and that the injections had given her a good result.

The defense presented two physicians, an orthopedic surgeon (Anjani Sinha, M.D.) and a neurologist (James Liguori, M.D.), each of whom examined Mrs. David four and a half years after the accident. They testified that her right shoulder injuries pre-existed the car accident. That testimony, though, was discounted by the trial judge because it contradicted written reports they had generated shortly after their examinations in which they had stated that it could not be determined whether the torn rotator cuff was related to the accident or was pre-existing.

The trial judge's decision to award $250,000 for pain and suffering has now been upheld on appeal in David v. Mallilo & Grossman (Appellate Term, 1st Dept. 2010). That award is within the range of recently sustained verdicts in rotator cuff surgery cases, as discussed by us most recently here.

The appellate judges noted that for several months after the accident plaintiff's injuries left her:

• restricted in bathing, dressing and household activities
• unable to drive, type, write on the blackboard or lift boxes at school where she worked

 And Dr. Rozbruch opined that Mrs. David's shoulder injuries included:

• continued lack of full muscle strength, possibly permanent
• recurring subacromial bursitis and pain
• risk of recurrent tear of the rotator cuff with repeat surgery

Inside Information:

• Mrs. David had been forced to accept  $25,000 to settle her Civil Court lawsuit because that's the most one may sue for in that court.
• Pursuant to CPLR 325(d), the attorney malpractice lawsuit, commenced in Supreme Court, was tried in Civil Court but there was no limitation of monetary jurisdiction with respect to the $250,000 verdict. The parties consented to have the case tried by a judge instead of a jury.
• Plaintiff's husband was awarded $25,000 for his loss of consortium claim.
• In 2004, a $1,400,000 verdict was rendered against Mallilo & Grossman (in favor of another personal injury law firm) because a by-then disbarred associate had tapped into the plaintiff law firm's answering service to intercept calls from potential personal injury clients.
• Mrs. David was represented by Philip A. Greenberg in her attorney malpractice suit. Given the result he obtained and the extensive opposition he faced at every turn, his advocacy was outstanding.

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Linda Boyd got on a city bus in the Bronx on September 24, 1998. She was walking toward the back of the bus as it pulled away from the stop and lurched forward. Ms. Boyd grabbed the metal strap above her but it was defective and slid out of place causing her right shoulder to twist.

Here is a bus driver grabbing onto typical straps, like the one Ms. Boyd grabbed:

Claiming a torn rotator cuff caused by the sliding of the defective strap, Boyd sued.

At trial in 2005, the jury in Boyd v. Manhattan Bronx Surface Transit Operating Authority (Supreme Court, Bronx County, Index # 14783/99) awarded the then 56 year old plaintiff $450,000 for her pain and suffering ($225,000 past - 7 years, $225,000 future).

Plaintiff's injuries included:

• rotator cuff tear
• shoulder impingement syndrome
• 50% permanent loss of range of motion
• surgery - acromionectomy, coracoacromial ligament excision and repair of rotator cuff tear

Here is some of the anatomy involved in this case:

The $450,000 awarded in this case for pain and suffering for a rotator cuff tear with surgery appears to be a significant result in view of several other recent cases, such as:

• Shifrel v. Singh (1st Dept. 2009) - $50,000 for past only for a 49 year old (jury had awarded $5,000 past and zero future); no future damages due to lack of permanency.
• DeSimone v. Royal GM, Inc. (2d Dept. 2008) - $350,000  verdict upheld for a 30 year old who made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
• Chase v. Mullings - (1st Dept. 2002) - $190,000  verdict (amount uncontested on appeal)  for a 58 year old woman in a bus accident who sustained a partial tear in her non-dominant shoulder.

Here is a good example of a torn rotator cuff:

The verdict was affirmed in 2006 but the defendant obtained permission to appeal further and in 2007 the Court of Appeals reversed and ordered a new trial holding that the trial judge should have instructed the jurors that in order to prevail in this case plaintiff needed to have shown that the defendant had either actual or constructive notice of the defective strap.

In the second trial, the jury rendered a defense verdict on October 21, 2008 - it found that there was no prior notice because the bus driver had not negligently failed to inspect the bus before driving his route.

Plaintiff's attorney asked the trial judge to set aside the defense verdict because, she alleged, defense counsel engaged in a litany of inappropriate behavior (e.g., asking the judge within earshot of the jury to shut plaintiff's attorney's mouth and yelling and making groundless objections during plaintiff's summation). The trial judge agreed, concluding that the jury was improperly affected by the constant and bitter rancor exhibited by (both) counsel during the course of the trial. Accordingly, the defense verdict was set aside and a new trial ordered.

In the third appeal in this case, the defense sought a reversal of the trial judge's decision and reinstatement of the defense verdict in the second trial. The appellate court has now agreed with the defense.

In reversing the trial judge's order, the appeals court judges found that while there was improper conduct by defense counsel, it did not create a climate of hostility that so obscured the issues as to have rendered the trial unfair. Also, the judges noted: plaintiff's attorney failed to ask for a mistrial when the egregious behavior occurred and plaintiff's attorney herself was intemperate throughout the proceeding.

The case is now over, finally, after more than 12 years.

Inside Information:

• Defense counsel disputed the causation of plaintiff's injuries in view of a slip and fall incident 4 1/2 years before this accident in which plaintiff fractured her right arm (humerus) and sustained a right shoulder sprain. Plaintiff's doctor testified that the arm fracture and shoulder sprain had healed and were unrelated to the new shoulder injuries.
• In an unusual move, on the eve of the third trial (which did not occur because of the new appellate ruling), plaintiff's attorney asked the judge for separate trials on liability and damages. Her reason: the huge expense of paying doctors to come to court to testify (averaging about $5,000 to $15,000 per doctor). Plaintiff had already been through two trials and was reluctant to lay out thousands more before securing a liability verdict. Usually, plaintiffs want damages testimony (e.g., the treating doctor describing the surgery) heard by the jury before liability is determined so that the jurors will appreciate the seriousness of the injuries.
• Plaintiff's attorney was Candace Pluchino while defendant's trial counsel was Edward Flores. Defendant's appellate counsel was Lawrence Heisler, a widely respected and successful attorney for the New York City Transit Authority.

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He was a tough 47 year old steel cutter employed for many years at the Goodyear-Dunlop plant in Tonawanda, New York (the Buffalo-Niagara Falls metropolitan area) when in 2004 he noticed his right arm was swelling. After visits to a local ER and his primary care doctor, Richard Winiarski ended up seeing a vascular surgeon who told him he had a blood clot and thoracic outlet syndrome, pain in the arm and shoulder areas caused by a rib compressing upon a subclavian blood vessel.

Here is the involved anatomy:

The doctor successfully treated the clot over the next six months with blood thinning medication and an injection (known as a lytic procedure). All seemed fine but she recommended a rib resection operation to prevent a recurrence of the blood clot. The surgery involved removing the first rib so as to allow more space for the blood vessel.

During surgery, though, the doctor did not identify the thoracic nerve (which runs through the belly of the middle scalene muscle) and the nerve was damaged  when she cut through the muscle using an electrocautery device - a surgical tool which is heated with electric current to cauterize, or burn, vessel tissue.

Immediately after the surgery, Mr. Winiarski had tremendous pain in the area of his scapula (or "shoulder blade") and within two weeks at physical therapy he was seen to have scapular winging (in which the scapula protrudes at rest or with arm and shoulder movement).

In the medical malpractice lawsuit that followed (Winiarski v. Harris - Supreme Court, Erie County, Index #3375/07), the jury found that the thoracic nerve had been injured by the surgeon  whose failure to identify the nerve was malpractice. The jurors then awarded plaintiff damages for his pain and suffering in the sum of $52,000 ($12,000 past - 4 years, $40,000 future - 24 years).

On appeal, in Winiarski v. Harris (4th Dept. 2010), plaintiff's pain and suffering award has been increased to $562,000 ($162,000 past, $400,000 future).

The appellate decision states that plaintiff suffers from scapular winging and a permanent limitation of his right shoulder and arm; however, there's more. Here are the details as to the injuries, which are permanent because the nerve cannot heal, grow back or be replaced:

• 80% loss of use of his arm
• can only lift his arm to 45 or 90 degrees (with decreasing range of motion)
• pain requiring lifelong use of the narcotic medication Lortab
• sleep deprivation and depression

Inside Information:

• Mr. Winiarski was unable to resume heavy labor and was therefore fired from his job at Goodyear-Dunlop. He then took a job as a shoe salesman in a department store but had to stop after several months because it required him to climb ladders holding shoe boxes. The jury awarded him (and the appellate court affirmed) loss of earnings damages (including health insurance and pension) in the sum of approximately $1,300,000 ($200,000 past, $1,100,000 future). 
• The court also upheld Mrs. Winiarski's claim for loss of consortium in the sum of $120,000 ($20,000 past, $100,000 future).
• Defense counsel claimed (unsuccessfully) that the trial judge committed reversible error when he granted plaintiff an adjournment of several days to start his proof. The doctor was scheduled to be out of town at a medical conference and objected to the adjournment because it would mean she'd be unable to attend the end of the trial proceedings (the defendant did in fact miss summations and the judge's jury instructions).
• The trial judge had increased the future pain and suffering award to $540,000 - an amount deemed $140,000 too much by the appellate judges. It appears that they wanted to bring the award in this case somewhat more in line with the $500,000 pain and suffering award affirmed recently in Garrow v. Rosettie Assoc. (3d Dept. 2009), one of the few cases dealing with injuries very similar to those sustained by Mr. Winiarski.

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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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There was no question as to liability - 54 year old Bill Bouzas slipped and fell on a wet floor at a New York City restaurant on February 1, 2007 and the jury found it was all the fault of the defendant. After a one week trial ending May 7, 2009, though, the same Manhattan jury ruled that Mr. Bouzas was entitled to only $10,000 for his past pain and suffering (and nothing at all for the future). This, despite the fact that his injuries included an acute dislocation of his dominant shoulder and surgery three months later to repair a torn rotator cuff in that shoulder.

In a post-trial decision handed down last week by the trial judge in Bouzas v. Kosher Deluxe Restaurant, plaintiff fared no better. The judge had the conditional power, under New York's CPLR 4404, to modify upward the pain and suffering award if she found it was against the weight of the evidence (i.e., if the amount deviated materially from what would be reasonable compensation). I say "conditional" because the judge can't impose a higher (or lower) figure on the parties; what she can do is declare that the verdict was unreasonable, state what amount is reasonable and then order a new trial unless the parties agree to the reasonable figure. Most cases then settle for the new figure (or there's an appeal to the higher court).

In Bouzas v. Kosher Deluxe Restaurant, the judge stated:

•  " ... the award may deviate materially from what would be reasonable compensation for the injuries ..." and
•  she found no cases in which less than $80,000 was awarded for a shoulder dislocation.

Then, inexplicably, the judge concluded that she was not empowered to adjust the verdict and that its inadequacy would best be addressed by an appeal to a higher court.

With a golden chance to eliminate further litigation in a garden variety slip and fall case (the kind of case that clogs the court system), the judge could have - and should have - ruled that $80,000 was a reasonable pain and suffering verdict and that if the parties did not stipulate to that sum then there would be a new trial. In all likelihood, the parties would have agreed and the case would already be settled. Instead, plaintiff will now appeal and wait a year or more for a new ruling.

While the judge did not cite any of the pain and suffering verdicts she found on point (all of which she said were $80,000 or more), we set forth here some shoulder dislocation verdicts and, more importantly, appellate court decisions, that are relevant:

• Conte v. City of New York - $300,000 ($150,000 past, $150,000 future - 28 years) for  a 54 year old unemployed artist who tripped and fell sustaining a shoulder dislocation and a Hill-Sachs lesion requiring 2 1/2 months in a sling and surgery that plaintiff declined.

                                     A Hill-Sachs lesion is a complication of shoulder dislocations, causing damage to the head of the humerus:

• Jansen v. C. Raimondo & Son Construction Corp. - $750,000 ($350,000 past, $350,000 future) for an ironworker who fell from a ladder and sustained a subluxation of one shoulder, a dislocation of his other shoulder, fractures to one humerus and bilateral carpal tunnel syndrome. He required two surgeries already and will need more.
• Guzman v. Cisse (Supreme Court, New York County; 9/19/02; Index # 006778/96) - $175,000 ($75,000 past - 7 years, $100,000 future) for a 19 year old retail clerk struck by a car while crossing the street. He sustained a dislocated dominant shoulder with rotator cuff injuries.
• Hertzmark v. Triple Mittil Foods, Inc. (Supreme Court, New York County; 4/29/02; Index # 113318/99) - $150,000 ($75,000 past, $75,000 future) for a 39 year old fashion marketing executive who slipped and fell sustaining a shoulder dislocation requiring arthroscopic surgery. Ms. Hertzmark admitted to having dislocated her shoulder in a prior skiing accident.

For even more information on shoulder injury pain and suffering verdicts in New York, see our previous posts here, here and here.

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The scapula, also known as the shoulder blade, is the flat triangular bone of the shoulder girdle. It articulates with the clavicle (the collarbone) and it forms the glenoid fossa with which the humeral head articulates.

Take a look:

There aren't a lot of scapula fracture cases or decisions that result in large pain and suffering damage awards or appellate court decisions. In part, that's because when it's only the scapula that's injured it's usually not too serious and heals well without surgery. When it's a bad scapula fracture, there are often other injuries too such as head injuries or facial fractures which often dwarf the scapula fracture insofar as pain and suffering is concerned.
 

This month, though, an appeals court in New York weighed in on the amount of pain and suffering damages that's proper in a case involving only a scapula fracture. In Keaney v. City of New York, a 57 year old construction worker was unloading wooden planks and frames when two planks fell from the top of 30 foot scaffolding and struck the plaintiff on the right shoulder, knocking him to the ground.

Michael Keaney was taken by ambulance to the hospital where he was diagnosed with an extensive, comminuted fracture of his right scapula. By the time of  trial seven years later, the fracture itself had healed but Keaney testified that he:

• could no longer raise his right hand and had to use his left hand for all activities of daily living such as using the toilet, shaving and brushing his teeth.
• underwent physical therapy for seven years
• was still on painkillers seven years later, and,
• was never able to return to work

The Queens County jury awarded Keaney $1,6000,00 for his pain and suffering ($700,000 past; $900,000 future) and the defense appealed arguing that the verdict amount was excessive.

The appeals court agreed with the defense and ordered a reduction to $500,000 ($200,000 past, $300,000 future).

The $500,000 for pain and suffering for a fractured scapula in a 57 year old man is the highest reported such verdict (i.e., for a case involving only the scapula). Plaintiff argued that his injuries  were unique in that:

• his arm served no practical functional use and caused him exquisite, worsening pain
• his testified that he suffered a massive permanent shoulder girdle injury and adhesive capsulitis ( frozen shoulder)

Inside Note: The appeals court indicated that a major reason for the reduction of the jury's verdict was that plaintiff had not submitted to the arthroscopic surgery his orthopedic surgeon recommended and had testified would likely help the plaintiff's condition. Judges routinely instruct juries using New York's Pattern Jury Instructions (in this case PJI 2:325) that:

a plaintiff who fails to have a recommended operation may be held to be unreasonable and denied all or some damages. If, though, the plaintiff satisfactorily shows the jury that his refusal to submit to surgery was due to his inability to pay for it (as was the case with Keaney) or that the surgery would not have relieved the pain (argued here) then the jury is told it should not reduce damages.

Clearly, in awarding $1,600,000, the jury in this case "bought" all of Keaney's arguments concerning the reasons he declined the surgery. Therefore, the appeals court should not have taken into account the surgery refusal in reducing the pain and suffering award.

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On December 22, 1999, Lieutenant Nocenzu Cusumano, a New York City firefighter, reported to work at the city's recently renovated Staten Island training center. He slipped on stairway debris and fell 16 feet down to a concrete floor. He reached out for a handrail or banister but none was there as the renovation was illegal and violated the building code.

Like these stairs under construction, there was no handrail or banister:

Here are the injuries Lt. Cusumano sustained:

• crushed left hand and wrist with fractures of his hamate, capitate and lunate bones requiring reconstructive surgery with pins and wires
• left shoulder impingement requiring two surgeries (known as acromioplasty) to remove bone and scar tissue
• exacerbation of previously torn meniscus in his knee now requiring surgical repair

In the ensuing lawsuit, Cusumano v. City of New York, a Queens County jury awarded plaintiff pain and suffering damages in the sum of $1,700,000 ($1,200,000 past, $500,000 future). The past award was for the seven years from the date of the accident to the date of the verdict. The future award was based on plaintiff's life expectancy of 15 more years.

The defendant appealed, claiming that $1,700,000 was excessive and the appellate court agreed as to the past pain and suffering verdict. It held that $1,200,000 was too high and reduced it by $455,000 to $755,000. The $500,00 verdict for future pain and suffering was affirmed.

So, on what basis did the appeals court conclude that $455,000 should be deducted from the jury verdict for past pain and suffering? We have previously noted that appeals courts often provide no basis at all in their decisions reducing personal injury jury verdicts (for example, here and here). In this case, though, the judges purport to provide some basis for their decision.

The decision states that  " ... upon consideration of the nature and extent of the injuries sustained by the plaintiff [the court did recite the specific injuries in its decision], the jury's finding that the plaintiff sustained damages in the sum of $1,200,000 for past pain and suffering deviated materially from what would be reasonable compensation to the extent indicated herein [i.e., the past pain and suffering verdict was $455,000 too high]." That's the usual standard statutory language of CPLR 5501 inserted into almost every appeals court decision wherein damages are reduced (or increased). That provides no guidance or justification.

The judges then go on to cite six prior cases as support for their decision. Let's take a look at those cases and see if they do.

1. Deshommes v. Hussain - 40 year old taxi driver in car accident sustained a herniated disc (no surgery). The jury verdict of $1,200,000 ($300,000 past, $900,000 future) was reduced on appeal to $700,000 ($200,000 past, $500,000 future).
2. Pitera v. Winzer - a 37 year old man in a car accident sustained a torn meniscus requiring surgery (as well as bulging cervical discs and a herniated lumbar disc none of which required surgery). The jury's $1,100,000 verdict ($450,000 past, $650,000 future) was reduced on appeal to $550,000 ($200,000 past, $350,000 future).
3. Jansen v. Raimondo & Son Constr. Corp. - a 36 year old firefighter fell injuring both shoulders requiring surgery on each. The jury verdict of $730,000 for future pain and suffering was reduced to $400,000. The $350,000 for past pain and suffering was affirmed and thus the total affirmed was $750,000.
4. Purcell v. Axelsen - a motorcyclist sustained fractures of her pelvis (no surgery),  wrist (surgery) and a lumbar vertebrae (no surgery). The jury verdict of a mere $10,000 (past only) was increased on appeal to $250,000 ($130,000 past, $120,000 future). There were significant credibility issues at trial regarding both plaintiff and her treating doctor that resulted in the low jury verdict.
5. Frascarelli v. Port Auth. of N.Y. & N.J. - a 35 year old who was assaulted sustained a torn meniscus requiring arthroscopic surgery. Plaintiff was out of work for only six weeks and required no more surgery.  The jury verdict of $700,000 ($300,000 past, $400,000 future) was reduced on appeal to $450,000 ($225,000 past, $225,000 future).
6. Perez v. Farrell Lines - a 58 year old fell and sustained a traumatic brain injury and a shoulder injury. The jury verdict of $650,000 ($400,000 past, $250,000 future) was affirmed.

We have reviewed the six cited cases in detail and urge readers to do so as well. In many respects, they deal with injuries different from those ruled on in Cusumano v. City of New York. We do not believe they support the decision to deduct nearly half a million dollars from Lt. Cusumano.  The jury that heard this case listened to each of the witnesses (including of course the plaintiff and his treating doctor), assessed the credibility of each and every witness and deliberated carefully among themselves before rendering their verdict. That's how our legal system works in New York injury cases.

An appeals court may disturb the jury's verdict only when it finds the amount deviates materially from reasonable compensation (CPLR 5501). To make that finding, the appeals court must have a basis. It cannot pull numbers out of thin air. It should explain its reasoning. Merely citing cases, some of which involve similar injuries and some of which involve injuries not at all relevant is not right. It is neither instructive to the bar and the public nor is it even academically proper.

More and instructive reasoning must be given so that the bar and the public can be guided by the upper and lower limits appeals courts are likely to set in New York injury cases. When that's done, there will be a reduction in trials as more cases are settled because everyone knows the limits.

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Bronx and Kings Counties are among the few venues that New York personal injury attorneys (those representing plaintiffs, that is) will tell you are favorable counties for much larger than average-sized pain and suffering verdicts. Westchester, Rockland, Nassau and many upstate counties are among the worst (i.e., the juries are stingy in their verdict amounts). These "rules of thumb" do not always hold true, of course. And not so at all in a recent car accident case.

In Shifrel v. Singh, a 49 year old man was stopped in traffic on July 22, 2004 on the Cross Bronx Expressway when he was hit in the rear by defendant's car. He complained of left shoulder pain at the hospital that day, followed up with an orthopedic surgeon, had an MRI that showed a torn rotator cuff and eventually had surgery to repair the tear. Following seven weeks of physical therapy, Mr. Shifrel tried to resume his pre-accident way of life which had included sports such as softball and basketball and riding a motorcycle. He could not and his doctor testified that his restricted range of motion was permanent.

Here's a comparison of normal and torn rotator cuffs:

Although the defense had an opportunity to examine the plaintiff with its own doctor before trial, that doctor was not called to testify at the trial and the plaintiff was given a missing witness charge. That's where the judge tells the jury that, when a witness under the control of one of the parties is not called to testify when it's expected he would have been, the jury may draw negative inferences from that failure. In other words, the judge tells the jury that it will be permitted to conclude the defense was trying to hide testimony that may have been favorable to the other side. Here, the defense doctor probably wold have agreed with the plaintiff's doctor's testimony.

Usually the missing witness charge when the witness is a defense doctor will be very damaging to the defense. It allows the jury to "buy" everything the plaintiff's doctor says as to causation, permanence and severity and it suggests to the jury that the defense doctor would have said the same thing.

In this case, the missing witness charge meant nothing. It was no help to the plaintiff. The jury returned a verdict of $5,000 for all of plaintiff's pain and suffering! And that sum was just for past pain and suffering (3 1/2 years). The jury's verdict for future pain and suffering was -0-.

Naturally, the plaintiff appealed. The appellate court held that indeed the past pain and suffering sum was too low - it found $50,000 was a reasonable figure for past pain and suffering. Less than what plaintiff's counsel urged but at least the appeals judges saw the impropriety of only $5,000 for past pain and suffering.

As to the jury's failure to award any amount at all for future pain and suffering, though, the appeals court affirmed the verdict. It found that plaintiff was not entitled to any award for future pain and suffering because of the "lack of permanency of plaintiff's injuries."

The $50,000 ultimate award in this case is way out of line with other rotator cuff tear injury cases in New York. For example, see our reports here and here. As you can see, when surgery occurs after a rotator cuff injury, in relatively routine non-complicated cases (medically),  the sustained verdicts in New York injury cases for middle-aged persons appear to fall in the $150,000 to $300,000 range.

Inside Information:

• as this was a car accident case, the nuances of Insurance Law Section 5102 applied (see Eric Turkewitz's terrific expose of this statute) and the jury found that plaintiff had met the statutory threshold because he suffered an injury of a non-permanent nature that prevented him from preforming his usual and customary activities for at least 90 of the 180 days after the accident
• the appeals court concluded that the jury's finding that the so-called 90/180 standard had been met meant that the jury specifically concluded plaintiff's injuries were non-permanent
• even if the jury did make a finding of non-permanence (a) the plaintiff's doctor testified - unchallenged (remember the missing witness charge) - that plaintiff's injuries were indeed permanent and (b) non-permanence does not preclude any and all pain and suffering into the future; it would allow for an award of 10 years of pain, 20, one, whatever

Really Inside Information:

• the defense offered $65,000 to settle just before trial (acceptable to plaintiff's counsel but rejected by the plaintiff himself)
• after the verdict, plaintiff's counsel would have settled for $50,000 (not offered)

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Slip and fall injury cases in New York are quite common. They are also among the most difficult to win for the injured party. All three cases in the latest round of slip and fall trial court decisions released in New York are from accidents in the winter of 2006-2007. Two were dismissed on motions for summary judgment by the defense and only one is being permitted to proceed to trial.

In Officer v. 450 Park LLC, a woman arrived at work just before 9 a.m. on February 14, 2007, took a few steps into the lobby of her building and promptly slipped and fell on the marble floor severely injuring her shoulder.

Building lobbies, with marble floors, are the subject of two new cases:

In her ensuing lawsuit against the building owner and manager, she claimed that on this wet, snowy, rainy day there should have been a safety mat by the entry door to prevent her fall.

In dismissing Ms. Officer's case (after depositions were held but before trial), the judge noted:

• video and still film supported the security guard's statement that mats were placed at the two entrance doors
• plaintiff did not know where she fell: whether on a mat or the marble
• defendant had mopped the floor 20 minutes before plaintiff fell

There is no legal requirement that property owners provide a constant remedy to the problem of water being tracked into a building in rainy weather; nor is there an obligation to continually mop up all tracked in water. And in general there's no obligation to put down floor mats when it rains.

To win a case like this, a plaintiff must show:

1. the defendant caused or created the dangerous condition or
2. had actual (someone told him) notice of the dangerous condition (the wet floor) or
3. had constructive notice - i.e., the condition was present for a long enough time that the defendant should have known about it and had time to correct it.

It's extremely rare that plaintiffs ever prove a defendant caused or created a dangerous condition in a slip and fall case and it's nonexistent in tracked-in rainwater cases. Actual notice is also rare - only a few times in many years of practice have I had a case in which evidence was uncovered of someone actually telling the premises owner of a dangerous condition before my client fell. So, we are almost always left trying to win slip and fall cases using constructive notice as a basis for liability.

In the Officer case, the judge held that the defendant knew of the dangerous condition before plaintiff fell but no liability was possible because the judge said that the defendant took reasonable steps for the safety of its customers - it placed mats down and mopped the floor.

In a similar case, Brenowitz v. Commerce Bancorp, a woman slipped and fell on a wet marble floor at the defendant bank at 2 Wall Street in Manhattan on a rainy day -  December 1, 2006. She fractured her wrist and sued the bank claiming that liability should be imposed because the bank's marble floor was unusually slippery and dangerous when wet. In dismissing her case, the judge noted that the bank neither created the wet condition, nor did it have actual or even constructive notice of it. In any event, the decision notes, the bank had umbrella stands available, a porter who would mop when the floor was wet (and he was not advised to do so that day) and the entrance area was carpeted.

Umbrella stands can help property owners win in slip and fall cases:

The one new case that's being permitted to go to trial is Stellman v. New York City Transit Authority. In that case, on February 15, 2007 (the day after Ms. Officer fell - see above case), a man slipped and fell on ice that had formed on the steps of a city subway station at West 86th Street.

Here's what the icy steps may have looked like for Mr. Stellman:

His claim against the city was that its employees knew or should have known of the ice formation because snow and freezing rain from the day before ended 15 hours before Mr. Stellman's fall. Since there was no new snow or ice after that and since the temperature did not rise above 30 degrees once the snow and rain stopped, plaintiff (through an expert in meteorology) showed to the court's satisfaction that the city's employees had enough time to clear up the ice so as to prevent plaintiff's fall. The plaintiff did not thereby win his case. He simply survived the defendant's motion for a dismissal at this early stage and he's now allowed to proceed to trial. There, the jury will hear testimony, see exhibits and determine for itself whether or not to impose liability against the city.

Slip and fall cases - especially those arising from wet floor or stair surfaces - often result in very serious injuries such as hip fractures, wrist fractures and shoulder injuries. Injured parties often think that simply because they fell on someone else's property which was dangerously wet there must be liability against the property owner. Not so. Not even close.

The law is very much in favor of the property owner in these cases and there are several hurdles (such as the "notice" requirements) that a plaintiff must jump merely to be allowed to present his case to a jury. Even then, of course, the verdict may be in favor of the defense.

The three recent cases discussed herein are well in line with the trend in New York favoring the defense in slip and fall cases. Both injured parties and their lawyers should be guided accordingly and approach these cases with caution and a realistic view of their chances of success.

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Update: Following our recent post on shoulder injuries, now comes a new report on two claims that settled after trial - one for $300,000 and the other for $200,000.

In Crisostomo v. The Salvation Army (Supreme Court, Bronx County; Index # 13825/05 and 17276/05), a 40 year old man was driving his car with his 37 year old wife as a passenger when they were rear-ended by another vehicle.

Mr. Crisostomo sustained tears of his anterior glenoid labrum, rotator cuff and supraspinatus tendon of his right shoulder.

He underwent arthroscopic surgery and six moths of physical therapy. The jury awarded him $600,000 for his pain and suffering, evenly split between past and future. While post-trial motions were pending in which the defense asserted that the jury award was excessive, the parties compromised and settled for $300,000.

Mrs. Crisostomo sustained a partial thickness rotator cuff tear, underwent arthroscopic surgery for a subacromial decompression and bursectomy and then six months of physical therapy.

Subacromial Decompression Surgery:

The jury awarded $350,000 for her pain and suffering ($200,000 past; $150,000 future) and then, while post-trial motions were pending, like her husband, she compromised, and she settled for $200,000.

While each case is different and each injury is unique resulting in pain and suffering that is also unique, we believe these awards for shoulder injuries in New York reflect average, reasonable pain and suffering amounts and can be used as a guide in evaluating damages where the parties and injuries bear significant similarities.

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Jurors in a recent shoulder trauma case tried to a verdict awarded $2,162,000 for pain and suffering involving a torn rotator cuff.

                                                                                            Torn Rotator Cuff:

In another late 2008 jury verdict, $1,100,000 was awarded for pain and suffering for a similar injury.

These pain and suffering verdicts appear to be well above the norm and may be modified downward on appeal. Neither case resulted in a court decision that has been publicly reported; however, we have obtained detailed information about each case, both of which are discussed below.

In Bauer v. NYC School Construction Authority (Supreme Court, Kings County; Index # 4119/05), after a seven day trial the jury determined that a 46 year old laborer who fell off a scaffold at a construction site was entitled to $2,162,000 for his pain and suffering ($650,000 past pain and suffering plus $1,512,000 future pain and suffering). Plaintiff's injuries included a tear of his left, non-dominant shoulder's rotator cuff that required three surgeries and left him with residual arthritis, fibrosis (a thickening of the connective tissues) and scar tissue).

In Kirk v. Bed Bath & Beyond, Inc. (Supreme Court, New York County; Index # 10694/06), a 69 year old actress was walking through an open interior doorway when the doorway's metal frame fell on her and injured her shoulder. She was awarded $1,100,000 for her pain and suffering ($300,000 past pain and suffering plus $800,000 future pain and suffering). She underwent arthroscopic surgery which disclosed an irreparable torn supraspinatus tendon and during which a piece of the clavicle was excised. A second surgery was required two years later - a palliative release of the shoulder's biceps and an anterior capsulectomy (removal of some membranes). Her orthopedic surgeon testified at trial that the falling door frame caused permanent inflammation of the shoulder which could not be fixed by more surgery. While the $1,100,000 verdict may well be reduced on appeal, the defendant cold have gotten out much cheaper with a settlement: the plaintiff offered to settle for $750,000 but the defense offered only $650,000 before the verdict.

While each case is different and each person's pain and suffering is unique, the appellate courts in New York will look to awards in prior cases for guidance when ruling on appeals from jury verdicts that are claimed to be excessively high or inadequately low. If either the Bauer or the Kirk cases discussed above is ruled on by an appellate court, it's likely that the following cases will be relevant:

• DeSimone v. Royal GM, Inc. (2d Dept. 2008) - $350,000  pain and suffering verdict ($100,000 past and $250,000 future) upheld on appeal for a 30 year old hotel guest services agent in a car accident who sustained a torn rotator cuff and underwent an unremarkable arthroscopic surgery. She made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
• Miller v. Weisel (2d Dept. 2005) - $700,000 pain and suffering verdict ($200,000 past and $500,000 future) for Erb's palsy suffered by a boy due to medical malpractice at birth. He was 13 years old at trial and the appellate court reduced the jury's verdict from $1,200,000 to $700,000.
• Chase v. Mullings (1st Dept. 2002) - $190,000 pain and suffering verdict ($60,000 past and $130,000 future) for a 58 year old woman in a bus accident who sustained a partial tear of her left, non-dominant rotator cuff requiring arthroscopic surgery.

Personal injury lawyers such as New York's Eric Turkewitz will tell you that just because you read about a verdict in the news, or it's reported in blogs such as here, does not mean the plaintiff will actually get the money. Under CPLR 5501(c), as Turkewitz notes, and as we have previously discussed, the appellate courts can rule that a jury verdict deviates from what would be reasonable compensation and require a new trial on damages unless the parties stipulate to the amount determined reasonable by the appellate court.

We will follow the recent verdicts discussed here for further treatment by the appellate courts and report if and when there are new developments.

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