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

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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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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Will New York become a haven for lousy golfers? That's a possibility given an appeals court ruling last week in the case of two (theretofore) friends and golfing buddies who took to the course on October 19, 2002. One of their threesome got hit in the eye by an errant golf shot from another in the threesome, sustained a traumatic retinal detachment, lost sight in his eye, sued his buddy and has now had his case dismissed as a matter of law.

Golf course injuries can be quite severe and lawsuits concerning them seem to be on the rise. The courts, think tanks and commentators have repeatedly addressed the situations under which there will be liability for misdirected golf shots. When one must one yell "fore," and when should an injured golfer's case be dismissed because he was out of position? These are just some of the issues being discussed in the cases and by others such as  Walter Olson who chronicles the high cost of our legal system at Overlawyered (where today he mentions the case here discussed).

In Anand v. Kapoor, plaintiff and defendant, both physicians, had each hit two shots on the first hole of Dix Hills Park Golf Course. Dr. Anand was 20 feet or so ahead of Dr. Kapoor and at an angle 50 degrees away from the hole. Without seeing Dr. Anand or even knowing where he was, Dr. Kapoor hit what must have been one of the poorest wedge shots in history - it shanked 50-80 degrees and went towards the green no more than 20 feet - it went smack into Dr. Anand's left eye!

Nobody is ahead of the golfer and all are safe here:

Dr. Anand claimed that Dr. Kapoor should have yelled "fore" before hitting or at least when he realized his shot was, shall we say, off-line. Way off line. Dr. Kapoor, for his part, claimed that the plaintiff knew that golfers should wait behind those hitting precisely to avoid injuries from errant shots.

Also, the defendant correctly noted that the obligation to yell fore arises only when another person person is:

1. in the intended line of flight, or
2. in a position such that danger to him is reasonably anticipated.

Dr. Anand was neither in the intended line of flight nor even in an area that it might be expected would be dangerous.

The court noted that it's long been the law in New York  (see Jenks v. McGranaghan) that a golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger (i.e., to yell "fore"); however, on the facts in this case the court then held that plaintiff was at so great an angle away from the defendant and the intended line of flight that he was not in the foreseeable danger zone.

It's not like the plaintiff was aiming for the defendant, like in this illustration:

So what exactly does "foreseeable danger zone" mean? Well, as we lawyers say, its meaning is fact specific.

• In the case of Richardson v. Muscato, it meant that a golfer on the tee who was hit on the head by a ball from another golfer on a different hole was in the zone when the defendant admitted he saw the plaintiff ahead about 40 feet before taking his shot.
• In the case of Rinaldo v. McGovern, it meant that a person driving his car on a road adjacent to a golf course was not in the zone when a ball came crashing into his windshield.

Clearly, Dr. Anand bore responsibility for his own actions in the new case - he went ahead of the pack and placed himself outside the line of sight of his playing partner. It's not that the court is blaming the victim (and we all surely must sympathize with the plaintiff who suffered a devastating injury here); rather, the court is declaring that the doctrine of assumption of the risk applies. Under that doctrine, as we have noted before (coincidentally, in another golf injury case), a plaintiff may be barred from recovering for his injuries when it is shown that he voluntarily engaged in dangerous activity and he knew or should have known of the risk of harm.

So, yes, a golfer should still yell "fore" when he hits an errant shot and if he does not he may be found liable in court if his shot injures another golfer when the plaintiff:

1. is not in the line of sight,
2. has gone ahead of the area where the golfer's ball lies who is furthest from the hole, or
3. otherwise acts without regard for his own safety.

New York is not, as I suggested tongue in cheek above, likely to become a haven for lousy golfers because of the new court decision. High courts in magnificent golf spots like Hawaii have ruled the same way. Golf, anyone?

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It never ends, does it? Another careless person fell onto the New York City subway tracks and was grievously injured. Then he lawyered up, sued the city and a Brooklyn jury recently found the city's motorman 70% at fault with the result that the injured fellow was awarded $5,950,000 for his pain and suffering.

Walter Olson's Overlawyered follows these types of cases better than anyone, he finds cases no one else does and he points out the policy considerations we should be thinking about but juries don't. And we have recently addressed the whole issue of subway accidents and resulting large jury verdicts.

In this case,  Sanders v. New York City Transit Authority (Index # 34003/03; Supreme Court, Kings County; 3/6/09), the jury heard evidence that on December 12, 2002, James Sanders fell onto the tracks as a subway car in Brooklyn was coming into the station at about 15 mph. The jury was also apprised of the facts that Sanders had been returning from methadone treatment and had drunk pure rum before entering the station (a fact he initially denied).

Then, there were these additional facts:

• Sanders could not recall why he fell
• the motorman's speed was no more than 15mph
• witnesses testified that the train was no more than 20 feet away when Sanders fell onto the track

This is what it must have looked like just before impact:

So how could any jury conclude that the 41 year old Sanders was not 100% at fault for his own injuries? The answer: the "last clear chance" doctrine. That's a long established legal principle, related to the concept of comparative negligence (the apportionment of negligence between plaintiff and defendant) that says a plaintiff may win when, despite the plaintiff's own negligence, the defendant was aware of the danger faced by plaintiff and negligently failed to take available means to avoid the accident.

The defense argued that the train's motorman could not have seen Sanders until it was too late and that the last clear chance doctrine was inapplicable. After six days of trial, the jury disagreed and found plaintiff only 30% at fault.

As I said, the injuries were grievous, including:

• right leg amputation at the knee
• nerve damage causing permanent blindness in one eye

Clearly, the injuries sustained and the pain and suffering Mr. Sanders will endure for the rest of his life are enormous. Therefore, I hesitate to mention, but many have this opinion, so it must be asked:

Wouldn't accidents like this be eliminated by waiting for the approaching subway car away from the platform, in the area of this woman?

And then there is a significant policy issue too. Should a plaintiff whose own negligence contributes to an accident and his own injury be permitted to recover money damages from a defendant who is also partially at fault. New York has long said yes and juries simply assign respective percentages of fault to the plaintiff and defendant and then the plaintiff recovers accordingly. In other states, such as Virginia, where prominent personal injury attorney Doug Landau discusses this issue and this very case, there would be no recovery at all for a plaintiff found to be as little as 1% at fault.

The "gross" pain and suffering award (i.e., the total before reduction for plaintiff's percentage of fault) was $8,500,000 ($2,500,000 past; $6,000,000 future). Applying a 30% reduction results in a $5,950,000 pain and suffering verdict for the plaintiff.

As is often the case, both in big damage cases like this one and in cases in which plaintiff's own conduct appears to be instrumental in an accident, there will be an appeal. We will follow this case as it makes its way through the appeals process and report back with any significant dvelopments.

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 After evidence was presented in a trial in 2006, the judge dismissed a personal injury case brought by Delvin Sweeney. He  appealed and won a new trial set to start this week in Bronx County, New York. The case is Sweeney v. Bruckner Plaza Associates.

It all stems from an incident on December 23, 1997 when Sweeney, a quadriplegic, drove his specialized vehicle to a shopping center, parked it and found it missing on his return a half hour later. He wheeled himself a mile or so to the tow yard and claims he thereby suffered substantial injuries - pneumonia from exposure to the cold weather and hand, wrist and forearm injuries from the bumpy ride along New York City sidewalks.

Plaintiff was left without his car, with just his wheelchair like this one:

Sweeney sued the tow company (as well as the parking lot owner) claiming it had no right to tow the car and it had no signs posted showing the phone number and location of the yard and therefore the yard caused his injuries.

A sign like this one may have avoided this whole lawsuit mess:

And there was (and is) the issue of causation. Or, as we lawyers say - proximate cause. The trial judge found there was an insufficient connection between defendant's actions and plaintiff's injuries. Two of the five appeals court judges dissented and agreed with the trial judge.

Here are some more of the facts in this case that have caused such judicial turmoil:

1. plaintiff parked in a handicapped parking spot but did not have handicap plates or a government issued placard allowing him to do so
2. plaintiff saw a tow company employee who told him he could get his car back at the tow yard about two blocks away
3. plaintiff twice called the police on his cell phone from the lot and was told to stay put but instead he decided to wheel himself to the tow yard, but it turns out it was 11 blocks away down a bumpy sidewalk in the cold weather
4. plaintiff, without a coat, wheeled himself but was with his teenage brother
5. defendant should have had signs in the lot with its phone number and address - it did not
6. defendant should not have towed the car because of the absence of the signs

So how would you rule on the issue of proximate cause? Here are some clues. When there is an intervening act (between defendant's negligence and plaintiff's injury), the determination of  whether a defendant's conduct can be said to be a proximate or substantial cause of the plaintiff's injuries turns on whether the intervening act was a foreseeable consequence of the defendant's negligence. Judges will consider the following:

• were there other factors that contributed to the injury?
• was the defendant's negligence continuous up to the time of injury?
• how much time elapsed from the negligent act to the injury?

Now, you have the information needed to decide this case. It's really a policy decision and the courts are in agreement that the policy considerations underpinning the law of proximate cause serve to place manageable limits upon the liability that flows from negligent conduct. If you want to see a compendium of cases and issues dealing with personal responsibility, there's no better place to go than Overlawyered where Walter Olson chronicles it all.

So, not every act of negligence combined with an injury should result in an injured party's courtroom win. Plaintiff wins only when he can show proximate cause and if there are intervening factors - such as his own voluntary decision to wheel himself in the cold without a coat over New York City bumpy sidewalks - then it may be that despite being injured following another party's negligence there should be no recovery.

In Mr. Sweeney's case, we will find out soon enough whether he can convince a jury that his decision to wheel himself to the tow yard was an act that was foreseeable following his being left without a car and with insufficient knowledge of the tow yard's location.

The defense will try to convince the jury that Sweeney's decision was not foreseeable - especially in view of the facts that the police told him twice to stay where he was, he did not have a winter coat on and he did not use his cell phone to try another (safer) way to get home. And, too, the defense will argue that any injuries caused by defects in the city sidewalks cannot be the fault of the tow company under any circumstances.

                    Prediction: Defense verdict.

                    As always, we will continue to follow this case and report on developments.

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

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

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

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

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

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

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

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

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

                               Here are side and back views of the whole spine:

Inside Information:

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

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

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

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Nine years after the fact and 2 1/2 years after the jury verdict, all of the parties in a medical malpractice case have been ordered back to court for a retrial because of the trial judge's error in refusing to ask the jurors individually whether in fact their unanimous, individually signed written jury verdict exonerating the defendant doctors of any fault was in fact their verdict.

This case has drawn the attention of the press (for example, here) and bloggers such as New York medical malpractice lawyer Eric Turkewitz.

In a decision last week by New York's highest court, the Court of Appeals held in Duffy v. Vogel that parties in a civil lawsuit have an absolute right to have the judge poll the jury (i.e., ask each juror, after the foreman reads aloud their verdict, whether he consents to the verdict) and that whenever that requirement is not met a new trial must be held - no matter how harmless it may appear to have been. The high court overturned an intermediate appellate court's 3-2 decision reinstating the jury verdict.

This decision breaks new ground in New York. There is an existing statute in the Criminal Procedure Law (Section 310.80) that requires polling in criminal cases; however, the requirement to poll juries in civil cases has no statutory basis and courts have applied the rule over the years but did not mandate a new trial for failing to poll a jury when the failure was found to be harmless error. The Court of Appeals has now effectively usurped the legislature and written new law. That argument was persuasively made by Daniel S. Ratner, the highly esteemed appellate counsel for Dr. Jacobs, but to no avail.

Who will be the new jurors and will they make the same findings?

Eleanor Duffy is a 52 year old woman with permanent fecal incontinence and permanent nerve damage in her vagina which she believes were caused by the malpractice of two physicians - her internist James Vogel, M.D. and her gynecologic oncologist Allan Jacobs, M.D. She sued them both in 2002 claiming that her injuries stemmed from their failures two years earlier when they treated her for complaints of pain in her pelvic area. She said that the doctors should have diagnosed a subsequently discovered tumor in her pelvis that would have been apparent had they ordered imaging studies such as an MRI, performed a biopsy and more thoroughly examined her.

An MRI study may have avoided the litany of litigation and, more importantly, Ms. Duffy's tragic injuries

After four years of litigation and a three week trial, on November 17, 2006, a jury in Manhattan answered "no" to each of many questions put to them regarding whether Drs. Vogel and Jacobs committed malpractice. Drs. Vogel and Jacobs were thus exonerated.

That should have been the end of it. Case closed. But in its 11 page verdict sheet (on which the trial judge told the jury to insert yes/no type answers to 21 listed questions), the jury stated that two other doctors (Arie Liebskind, M.D. and Martin Feuer, M.D.), who had also treated Ms. Vogel over the years, committed malpractice that caused Ms. Duffy's injuries and the jury then calculated plaintiff's pain and suffering damages as $1,500,000.

The problem is that neither Dr. Liebskind (a radiologist from 1996) nor Dr. Feuer (an internist) were sued by Ms. Vogel and they  were not defendants in this lawsuit. And, the jury was specifically told by the judge in advance to disregard the damages question should they (as they ultimately did) find that the defendants (Drs. Vogel and Jacobs) had not committed malpractice.

• The jury did find that there was malpractice:  but only by non-parties Drs. Liebskind and Feuer

Insider's Information:

• The fault of the non-party doctors was discussed at trial because it would be relevant if, but only if, there was fault on the part of the defendant doctors (the percentage of responsibility for payment of damages by defendants found liable is adjusted downward when there are non-party persons who are found to be at fault as well)
• Dr. Liebskind was not sued because the 2 1/2 years statute of limitations had run as against him
• It's not clear why Dr. Feuer was never sued - given the jury's finding that he committed malpractice in April 2000 by failing to order imaging tests such as an MRI. Perhaps he should have been sued and perhaps plaintiff's attorney was negligent in not adding him to the lawsuit - irony indeed.
• The jury's confusion became apparent when during deliberations they sent out a note to the judge asking: "If we find named non-parties liable for her damages, are they responsible for any, if any of the compensation?"
• Instead of answering directly, the judge then told the jury: "The percentage that is attributed to whoever you do attribute to ... then becomes a factor that is used as to that person's responsibility towards the total amount of whatever the damages are."
• The judge was Donna M. Mills who was a year earlier censured by the New York State Commission on Judicial Conduct for acting inappropriately following her arrest for DWI (for which she was acquitted) and for conduct that undermined public confidence in the judiciary.
• The judge could easily have avoided all of the post-verdict appeals and the upcoming retrial had she simply polled the jury as plaintiff's attorney had requested. All she had to do was ask each juror: "Was the verdict just announced by the foreman in all respects your verdict?" No doubt, each juror would have said "yes" since each had already signed the verdict sheet.

Clearly, plaintiff and her attorney are elated with the current appeals court decision. They believe that the jury intended to award her money damages and they will now get a second chance to try to convince a  jury that Drs. Vogel and Jacobs committed malpractice (though there's still no way to sue Dr. Liebskind because the statute of limitations ran against him and now the same is true as to Dr. Feuer).

The defendants and their attorneys are upset and rightfully so. They prevailed in a 16 day trial with 11 expert witnesses and it was clear that the jury exonerated them completely. Now, they must prepare again for trial, this time with a new jury (and we know how different jurors can come to stunningly different verdicts even though the facts and the parties are the same).

As the dissenting judge in the Court of Appeals said: requiring a new trial is a "gross injustice" and a "nightmarish result." Defense counsel went further, calling the order for a new trial so that jurors can be polled "a travesty of justice."

We will follow this case and report on developments.

• Prediction: The case will not settle and will be retried. The defendants will prevail. Again.

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This New York personal injury lawyer takes a back seat to no one in his admiration for physicians, especially orthopedic surgeons. I maintain that day in and day out doctors are among the noblest of our citizens, they do what no one else can and they are in general underpaid and overstressed. And the pressures on them are getting worse in the current political climate.

But, and you knew there would be a but, there are many who sully the well-earned high reputation most physicians have and one of the main ways they do this is in their examinations and reports regarding injured persons seeking compensation for their injuries.

I am not talking about the treating physicians for injured people; instead, what we focus on today are those physicians hired by insurance companies to examine injured persons and report back to the carriers so that the report can be used to minimize the injury claims in lawsuits or workers compensation claims.

It's only fair that insurance companies defending a driver in a car crash case or workers compensation carriers paying out benefits for a worker injured on the job have the right to challenge the claims made by an injured person. These so called independent medical exams are provided for under law and no one disputes the right of carriers to conduct them by physicians of their own choice. What plaintiffs' personal injury lawyers do challenge, though, is the independent nature of these exams. We prefer to call them insurer medical exams or defense medical exams, as we have long contended there is nothing independent about them.

During personal injury lawsuit settlement negotiations, the defense usually asks for time to have a medical exam of the plaintiff before making an offer. My usual response, tongue in cheek, is often something like Jackie Mason, the comedian, might say.

I tell the insurance company adjuster that there is no need to wait for the defense medical report because I've already seen it and can tell the adjuster what's in it. Incredulous, as the exam hasn't even been requested yet, the adjuster asks how that could be possible. I simply say I've seen the report and here's what it says:

• my client was never in an accident
• if he was in an accident, he suffered no injuries at all
• if he did sustain injuries, they are not related to the accident
• if the injuries were major, they resolved in full quickly
• if they will be long lasting, they will have little or no impact

You get the point. And so does the adjuster. It's pretty rare that a defense doctor doesn't come up with some if not many of the foregoing positions.

Cynical you say. Couldn't be? Well, I've got many years of experience dealing with these issues and while there are many doctors who tell it like it is and let the chips fall where they may and render reports without fear or favor, there are too many who do not. There are too many who generate reports with items in them or deleted from them as dictated by the insurance companies.

Couldn't be you say? Take a look at today's' New York Times, on the front page, where N. R. Kleinfield has blown the lid off these insurance company tactics in the workers compensation field. Here are some of his findings:

• an orthopedic surgeon who's done many workers comp exams said: "If you did a truly pure report, you'd be out on your ears and the insurers wouldn't pay for it. You have to give them what they want ...."
• the newspaper's review of case files and medical records and interviews with participants indicates that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries
• it's widely known that most of the doctors who perform insurance exams are those who are much older than average and who are no longer operating; according to one surgeon who does exams for carriers anyone can get the job so long as he's not a murderer and has a medical license

The system appears to be broken at an important juncture. If workers comp claimants and personal injury lawsuit plaintiffs are faced with insurance company doctors who report falsely about their injuries or minimize them without basis then there is a gross miscarriage of justice.

We are all well aware of the complaints and concerns of many about so called outrageous lawsuits (the McDonald's hot coffee case is often mentioned for example, here and here), runaway verdict amounts (though they are often reduced on appeal) and corrupt lawyers. We share some of those concerns and complaints.

We don't though, hear enough about the people who are injured and who are denied justice because of insurance companies who hire doctors to phony up reports of injured claimants' injuries so that juries will be misled and award little or nothing. That's wrong and it needs to be changed. Now.

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For the third time in one week, a New York appellate court has issued a decision ruling on the reasonableness of a jury's pain and suffering verdict while withholding the nature of the injury. Eric Turkewitz over at New York Personal Injury Law Blog says I am "steamed" about this issue. Well, maybe I am.

In the first two cases, the courts reduced verdicts by $1,000,000 or more. We discussed those cases here and here and made quite clear our opinion that it's wrong to withhold from the bar and the public the nature of the injuries or the judges' reasons for disturbing jury verdicts.

Now comes the case of Downes v. City of Mount Vernon in which the Appellate Division Second Department held that a jury verdict of $288,000 split about equally between past and future pain and suffering was not excessive, as it did not deviate materially from what would be reasonable compensation.

Well that's fine but what were the injuries? The decision is silent on that point. So what's the value of the decision of the judges that $288,000 is fair compensation? What do we lawyers learn about how to evaluate similar injury cases in New York so that claims can be settled with the benefit of judicial wisdom and precedent? Nothing.

Once again, we dug up the facts and are happy to disclose them here:

• on March 27, 2004, 66 year old Lucille Downes tripped and fell walking down steps outside a senior citizen center that did not have a handrail as required by code
• Ms. Downes suffered a trimalleolar fracture of her right ankle that required an open reduction surgery with the insertion of a metal plate and screws and her ankle now looks like this:

• Ms. Downes was already evidencing post traumatic arthritis at trial in 2007 and her doctor testified that the injury is permanent and the pain will worsen

As to liability, the jury found the defendant 70% at fault and the plaintiff 30% responsible for her own injuries and the appeals court affirmed that finding.

As to damages, the appeals court determined not to discuss any of its reasons for affirming the $288,000 pain and suffering award. Therefore, I have uncovered the arguments from both sides in this case and have pieced together the issues argued on appeal by opposing counsel.

The defense argued that $288,000 for pain and suffering damages was excessive not by arguing that the injury was not significant or that Ms. Downes made a great recovery and no longer suffered; instead the defense relied on case law precedent in which appeals courts ruled on damage amounts in other trimalleolar fracture cases.

In particular, the defendant relied upon Condor v. City of New York and Madrit v. City of New York. Both cases involved appeals challenging the amount of a jury verdict for pain and suffering in trimalleolar fracture cases. In Condor, the jury's $300,000 future pain and suffering award was deemed excessive and reduced on appeal to $150,000. That's almost the exact amount in the Downes case. In Madrit,  future damages were reduced from $250,000 to $125,000 - again, an amount approximating the award to Ms. Downes.

The cases cited by plaintiff, Clark v. N-H Farms, Inc. (2005) and Grant v. City of New York (2004), were much more relevant and recent than any relied upon by the defendant. In Clark, the jury awarded $1,200,000 but on appeal that was reduced (without explanation) to $425,000 ($200,000 past, $225,000 future). In Grant, a jury awarded $10,000 for past pain and suffering and $20,000 for future for a 53 year old woman whose trimalleolar fractures had already resulted in two surgeries. The court found the jury's award quite unreasonable and ordered an increase to $200,000 past and $300,000 future.

If the judges in cases like Downes would disclose injury facts and case law arguments made by the parties, then the public and the bar would be informed as to why the judges find certain amounts reasonable for pain and suffering damages in trimalleolar fracture and other injury cases. Then, the public will have significant information and meaningful judicial guidance with which to evaluate these types of cases and resolve them before litigation, before a trial or before an appeal.

Our appellate courts can and should help to reduce the number of lawsuits by telling us more about the facts of each injury case they decide and setting out meaningful information in their decisions that will give the public real judicial guidance.

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One day after we wrote about an appeals court's unexplained reduction of $1,350,000 from a jury verdict for pain and suffering in a Suffolk County case, today we have another appeals court doing the same thing. What's going on here?

In Lopez v. New York City Transit Authority, the plaintiff was riding his bicycle when it collided with a bus owned and operated by the defendants.

In the decision handed down today, the Appellate Division, First Department ruled on two significant matters arising out of the March 26, 2007 Manhattan jury trial:

1. the court held that the jury's apportionment of fault 70% to the bus driver and 30% to the plaintiff was fairly based on the trial evidence (some of which was mentioned in the decision), and
2. the court held that the jury's award of $2,100,000 for past pain and suffering damages after apportionment was fair but that the jury's award of $5,600,000 for future pain and suffering damages after apportionment was not reasonable compensation and should be reduced to $4,600,000 after apportionment

The court in this case gave absolutely no reason at all for why it found that $4,600,000 represents reasonable compensation for future pain and suffering but $5,600,000 does not.

• no statement of the facts about the injuries
• no guidance to the lawyers, this plaintiff or members of the public as to how to evaluate similar cases

To fill this void, we dug up facts in this case from the trial record and the arguments of attorneys involved (thanks to plaintiff's esteemed appellate counsel Brian Shoot of Sullivan, Papain, Block, McGrath & Cannavo):

• plaintiff Angelo Lopez, a 26 year old, was tragically injured on September 16, 2003 when the bicycle he was riding collided with defendants' bus whose rear left wheel then ran over Angelo's right foot
• Angelo suffered a degloving injury, underwent four surgeries, had gangrene set in and ultimately underwent an amputation roughly midway between his knee and his ankle joint
• his treating orthopedist testified that Angelo suffered from and would forever suffer from phantom pain, a well documented part of being an amputee
• the defense did not adduce any expert testimony to rebut plaintiff's doctor
• the jury awarded $3,000,000 for Angelo's past pain and suffering and $8,000,000 for the future (reduced due to Angelo's 30% fault to $2,100,00 past and $5,600,000 future)

Not only did the appellate court in Lopez v. New York City Transit Authority fail to reveal any of the foregoing facts we dug up but also it failed to discuss any of the many case law precedents that were cited to it in their briefs by able counsel on both sides. There were cases in which appeals courts sustained damage awards greater than those here for similar injuries and others in which appeals courts held there should be reductions. Some cases dealt with more serious injuries, some with less serious.

The point is, though, that we are owed some guidance from the appeals courts, some justification for their decisions involving millions of dollars and we are more and more often getting no explanation at all. In my humble opinion, that's got to change if the appeals courts want the bar and the public, as well as the parties before it, to be guided by their opinions and to act on them in a manner (i.e., settling cases for reasonable amounts) that will reduce the number of lawsuits brought to trial and appealed.

Surely that's a goal of the judicial system and it's one we lawyers would be glad to help effectuate. We just need some guidance from the courts as to the basis for these important decisions. So far, that guidance appears lacking. Let's hope that will change. Soon.

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On March 6, 1997, Louis Ferrigno, a 29 year old carpenter, was driving on a county road in New York when a large tree fell onto his car and crushed it causing him severe head and neck injuries.

Ten years later his case against the county for negligence came to trial. His claim was based on the fact that the tree was diseased and decayed and the county either knew about it or should have known about it and in either case should have removed the tree so that it would not be a hazard.

The jury found for the plaintiff on liability and then proceeded to award him $2,600,000 for his pain and suffering damages ($2,000,000 past, $600,000 future).

On appeal, this week, the court in Ferrigno v. County of Suffolk upheld the liability verdict. In the decision, there was a discussion of the law on negligence as to roadside trees falling and whose responsibility that is and why. In doing so, the court cited prior cases and discussed the facts in this case.

But as to the damages verdict, the appeals court only stated that the past pain and suffering verdict should be reduced to $750,000 and then concluded with these meaningless words:

The damages awarded to the plaintiff for past pain and suffering are excessive to the extent indicated herein, as they deviate materially from what would be reasonable compensation (see CPLR 5501 [c]).

That's it. Nothing about what the injuries were. Just a statement of the amounts the jury awarded for past and future pain and suffering and the amount for past pain and suffering that the appellate court felt was proper but not a clue as to what the young man went through insofar as physical injuries, no citations to case precedent as to damages and no indication why the court felt the $2,000,000 past pain and suffering verdict should be reduced to $750,000.

Failing to give the public facts upon which appellate courts reach their decisions as to pain and suffering damages is unfair both to the lawyers who rely upon the appellate court decisions for precedent and to non-lawyer citizens (by whose tax dollars, after all, the judges are hired and paid). We are all entitled to know how these august bodies make their decisions. 

And in this case, we were entitled to know why the judicial panel reduced a jury's $2,000,000 verdict for pain and suffering to $750,0000. This absence of information must change.

For the record, as we lawyers say, here's what Mr. Ferrigno went through:

• extreme pain and fear of imminent death while pinned inside crushed car waiting to be extricated by "jaws of life" tools and flown by helicopter to hospital
• eight inches of staple stitches across head
• skull fracture
• permanent neck pain and migraine headaches and

          plaintiff sustained a compression fracture of his cervical spine at C7

And the defense argued that the $2,000,000 was excessive and that Mr. Ferrigno's injuries were not so bad, because:

• plaintiff did not undergo any surgery
• loss of work and confinement to home was only six months
• the C7 compression fracture had healed (according to the American Academy of Orthopedic Surgeons many compression fractures are minor and need only six weeks of immobility in a cervical collar)
• physical therapy was needed for only three months
• plaintiff was only treated by a physician seven times in the years after the accident
• plaintiff was out of work for only six months and made no claim for future loss of earnings (indicating his injuries were not permanently disabling)

So now you know the facts about the injuries but we still don't know:

• which ones were important to the appeals court,
• what if any case law precedent was relied upon and
• how this case insofar as damages is concerned should be used in the future by lawyers and injured people to evaluate injury claims that are similar.

The appeals courts must stop refusing to explain their reasoning in cases that address an increase or decrease in jury verdict pain and suffering damage awards.

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In a case involving a pedestrian struck by a bus, there were two trials with two different juries. The plaintiff sustained elbow and foot fractures and in the first case her pain and suffering verdict was $575,000 but in the second case a new jury reduced that sum to $22,000! 

It all began at 6 p.m. on May 8, 2003 when 43 year old Mary Stewart went out for dinner in Manhattan after work. She had steak and a few drinks (we'll get to how many in a moment). At about 10 p.m., Ms. Stewart, a long distance walker who routinely walked miles at a time, began her mile and a half walk home. After about 14 blocks, she was crossing the street when she was struck by the bus making a right turn.

Ms. Stewart filed a lawsuit against the city that was first tried before a jury in October, 2004.

• Her claim: she was in the crosswalk, had the light in her favor and the bus driver should have seen her.
• The defense claim: the hospital record and a toxicology expert showed that plaintiff was grossly intoxicated and this supported the theme that she was  "a drunken woman who wandered into the street into the side of a slowly moving bus."

The jury found that the bus driver was 70% at fault for the accident and assessed Ms. Stewart with 30% of the fault. Then it found her injuries were worth $575,000 ($300,000 past pain and suffering, $275,000 future). Had that been the end of it, she'd have received $372,500 (70% of the verdict) for her pain and suffering and this case would not be surprising.

But that was not the end of it. The city appealed  on the basis that the jury should not have seen a certain part of the hospital record that stated that the toxicology report should not to be used for legal purposes. The city felt this language may have caused the jury to give less weight to the otherwise very damaging toxicology report. There is a firm legal principle that matters in hospital records that do not relate to diagnosis or treatment are not admissible and should not be shown to the jury. The court found that this applied to the language objected to by the city and therefore the city's  appeal was successful and a new trial was ordered.

In January 2007, the new trial was held and a new jury found that plaintiff's pain and suffering was worth much less than the first jury had found. The new jury awarded a total of $22,000 all for past pain and suffering denying any recovery at all for future pain and suffering. Even worse for Ms. Stewart, the new jury also ruled  that she was 72% at fault for the accident - meaning that her total pain and suffering recovery from the new jury was a mere $6,160 (28% of $22,000)! And that came with representation from a top notch law firm - Sullivan Papain Block McGrath & Cannavo. 

When the shock wore off, plaintiff and her lawyers appealed the verdict (both the apportionment of fault and the pain and suffering damage sums). They were disappointed again. This week, in Stewart v. Manhattan and Bronx Surface Transit Authority,  the appellate court upheld both the apportionment of liability and the denial of future pain and suffering while holding that the past pain and suffering award should be increased to $150,000 (leaving the plaintiff with $42,000 - 28% of $150,000).

The appellate court reasoned as follows:

• the denial of future damages was justified because the defense doctor testified that Ms. Stewart had no disability or permanent restrictions (her injuries had not required surgery and she had resumed her walking)
• the fault apportionment was justified because (a) there was evidence that plaintiff was intoxicated and continued to walk even though she saw the bus turning towards her and (b) there was conflicting evidence as to whether plaintiff was in the crosswalk (and the jury had the right to credit whichever testimony it believed and to determine that Ms. Stewart's conduct was the far greater cause of the accident)

 Inside Information:

1. there was conflicting evidence as to how drunk the plaintiff really was - she said she had only 3 vodka and cranberry drinks with dinner but the expert toxicologist opined that she must have had 8 and was "grossly intoxicated;" the jury may have concluded that Ms. Stewart was lying and thus not believed her testimony about continuing pain and disability
2. the doctor who testified as an expert for the plaintiff and claimed that her injuries were permanent was not her original treating doctor - he saw her only two times (first, a year after the accident; second, shortly before trial); the jury may have discredited plaintiff's expert  as a hired gun

Policy Implications and Questions arising out of this case:

• Should there be a standard set by statute or rule that requires scheduled amounts to be awarded for pain and suffering damages so that widely divergent results from different juries, as seen here, will be avoided?
• Should persons who are clearly intoxicated be permitted at all to recover pain and suffering damages in accidents such as in this case? [some such as Walter Olson at Overlawyered suggest that juries have gone "crazy" when they allow drunks to win these types of accident cases and award big damages; while others such as the folks over at Tort Deform suggest that it would be unfair to forbid the drunks their day in court and that the rule of comparative fault is a "dandy tool" of the civil justice system that contemplates things like people getting drunk, falling onto subway tracks and winning millions in their lawsuits against train conductors who run them over]
• If drunk plaintiffs can recover damages in accident cases such as here, how can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the different holdings by the two juries in this case (one found Ms. Stewart 30% at fault, the other 72%)
• How can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the comparison between the ultimate finding in this case (plaintiff 72% at fault) and the recent subway drunk case in which the drunk plaintiff was found to be 35% at fault (discussed here.)     

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