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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Drastic Reduction of Jury’s Damages Award Ordered in Shoulder Injury Case

Posted in Shoulder Injuries

On June 8, 2008 Michelle Trezza, then a 25 year old office manager, was a rear seat passenger in a car that was struck by a city bus on Baychester Avenue in the Bronx. She claimed significant right shoulder injuries as a result of the impact and sued both drivers.

Normal Shoulder Anatomy

Since it was undisputed that the bus veered out of its lane and sideswiped the car, a judicial determination was made that the bus driver was 100% at fault and the matter proceeded to a trial on damages only.

On November 22, 2011, Ms. Trezza was awarded damages in the sum of $2,500,000 as follows:

  • pain and suffering in the sum of $2,000,000 ($500,000 past – 3.5 years, $1,500,000 future – 51 years)
  • future medical expenses in the sum of $500,000

In Trezza v. Metropolitan Transit Authority (1st Dept. 2014), the appellate court reduced the $2,500,000 award to $300,000, holding that:

  1. the $500,000 past pain and suffering award was excessive and should be reduced to $300,000 and
  2. there was no basis at all for any future damages and, accordingly, the $1,500,000 future pain and suffering award – as well as the $500,000 future medical expenses award – should be vacated entirely because there was not enough evidence to prove that plaintiff would endure pain and suffering in the future and her claim for future medical expenses was too speculative

Plaintiff’s main injury from the accident was a right shoulder impingement (when the acromion rubs against or impinges on the tendon and the bursa, causing irritation and pain).

Here are other injury details:

  • extensive physical therapy and treatment with orthopedic surgeons, beginning the day after the accident
  •  arthroscopic surgery on 11/7/09 including a bursectomy, resection of the coracoacromial ligament and an anterior acromioplasty
  • development of arthritic “bony spicule” formation
  • five sets of trigger point injections
  • residual shoulder pain and restricted range of motion leaving plaintiff unable to pick up her toddler daughter, ride a bicycle, play with her children or scrub the floor
  • disc herniation at C4-5 (minor treatment, apparently not significant to jury)

Inside Information:

  • Ms. Trezza developed carpal tunnel syndrome in both hands subsequent to the car accident but unrelated to it and underwent carpal tunnel release surgeries in early 2011. The defense argued that much  of plaintiff’s ongoing painful disability was related to her carpal tunnel injuries.
  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering  damages between $200,000 and $300,000 and he suggested that a fair amount for future pain and suffering would be between $300,000 and $500,000.
  • Plaintiff’s pre-trial settlement demand was $375,000 against which the defense had offered $115,000.
  • There was no loss of earnings claim.

Appeals Court Slashes Damages Verdict in Medical Malpractice Case

Posted in Brain Injuries, Medical Malpractice

Their traditional potluck dinner on Christmas Eve in 2001 was shaping up to be another wonderful event in the lives of Tom and Lorraine Buckley. As always, Tom had shopped at the local food stores in Warwick, New York and Lorraine prepared the house. A dozen friends arrived, drinks were served and then tragedy began to unfold.

Tom was sitting on a chair in a corner when Lorraine noticed his eyes were closed while he was repeatedly taking his right hand and trying with difficulty to touch his nose – sort of like the field sobriety tests police officers give to test a driver’s coordination.

Lorraine drove her 49 year old husband to the local hospital where he was treated in the emergency room. A CT scan was read as negative and he was discharged to home after an hour with a diagnosis of “lethargy possibly secondary to alcohol.” It turns out that Mr. Buckley was suffering from the early stages of a stroke but doctors missed the diagnosis.

After falling twice during the night, Lorraine again took Tom to the hospital. This time it was apparent to all that Mr. Buckley was experiencing a stroke. He was admitted and treated but severe and irreversible damage had already occurred.

In his ensuing lawsuit in Orange County Supreme Court, plaintiff claimed that the emergency room physician and the radiologist who read the CT scan were negligent in failing to admit him on Christmas Eve when they could have treated him for a stroke and avoided permanent damage.

After a three week trial, the jurors ruled that both physicians departed from accepted medical practices in failing to admit Mr. Buckley to the hospital on December 24th.

The jury awarded pain and suffering damages in the sum of $6,000,000 ($2,000,00 past – nine years, $4,000,000 future – 22 years); however, the trial judge found the awards excessive and he ordered a reduction to $2,250,000.

In Buckley v. Haque (2d Dept. 2013), the pain and suffering damages were further reduced to $1,300,000 ($300,000 past, $1,000,000 future).

The appellate court decision offers no insight into the nature of the plaintiff’s injuries which we have uncovered:

  • lacunar stroke of left basal ganglion
  • admitted to hospitals for five weeks
  • extensive physical, occupational and speech therapy first as an in-patient, then for many months as an outpatient, then at home
  • extremely slow gait (e.g., cannot cross a street before the light changes)
  • limited use of right arm
  • destruction of almost all social relationships
  • unable to help his teenage children with their education or enjoy fishing with his son and shopping with his daughter
  • marital relationship severely impaired

Inside Information:

  • After asking jurors to award past and future loss of earnings in excess of $4,000,000 (based on plaintiff’s prior salary of about $200,000 a year), plaintiff’s attorney addressed pain and suffering damages simply (and effectively) in his closing argument: “I would suggest that … [pain and suffering damages are] equal to the economic damages at least ….”
  • A full settlement has now been reached. After trial (but before the judge’s decision reducing the damage awards), plaintiff settled with the emergency room physician; he has now settled with the radiologist as well. The settlement terms are undisclosed.
  • Plaintiff had been the president of a silicone business in charge of everything except finances. He tried to return to work after being discharged from the rehabilitation hospital but was unable to run the business, physically, mentally and emotionally. His business partner forced him out of the firm in early 2004 and at the time of the trial he was employed part-time as a grocery store clerk.

Federal Court Orders Increase in Damages in Ankle and Wrist Injury Case

Posted in Ankle Injuries, Wrist Injuries

On May 18, 2007, at about 10:30 p.m., Oliver Tookes, a 57 year old off-duty gardener employed by the Port Authority of New York and New Jersey, returned to his workplace at the Bayonne Bridge tollhouse building in Staten Island where, the day before, he’d inadvertently left his car keys. Unfortunately neither he nor anyone else there that night had keys to the building but he and a supervisor could see the keys on a desk through an open window and they thought they could get the keys by hooking them onto a pole they inserted through the window.

At one point, standing outside the building on a metal grate covering a basement access pit, they had the keys hooked onto the pole but the keys fell off; at another point shortly thereafter, the grate collapsed and Tookes plunged nine feet below to a concrete floor causing serious fractures of his left ankle and left wrist.

The actual area where Tookes fell, from a trial exhibit in the ensuing lawsuit:

Claiming that the grates were not in a reasonably safe condition, Tookes sued the Port Authority in the United States District Court for the Eastern District of New York. Because Tookes was a Pennsylvania resident, so-called diversity jurisdiction was applicable allowing him to sue in federal court. The litigation resulted in two trials plus an appeal.

In the first trial, on December 10, 2010, in Tookes v. Port Authority of New York and New Jersey (E.D.N.Y. No. 08 CV 1060), the jurors found that the Port Authority was negligent in that the grates were not reasonably safe (there was testimony from an expert metallurgist who concluded that they were both misaligned and corroded) and they awarded Mr. Tookes pain and suffering damages in the sum of $450,000 ($50,000 past – 3.5 years, $400,000 future – 18 years). The jury also awarded $300,000 for his loss of earnings.

In a post-trial motion,  plaintiff argued that $50,000 for past pain and suffering was inadequate. The trial judge agreed and issued a decision on August 10, 2011 ordering a new trial limited to the issue of past pain and suffering damages unless the defendant stipulated to increase that award to $500,000.

The defendant refused to stipulate and therefore a second trial was held. On January 24, 2012, the new jury awarded $600,000 for past pain and suffering damages.

The injuries Mr. Tookes suffered are described well in the post-trial decision and summarized as follows:

  • Left ankle Grade 3 open bimalleolar intra-articular fracture with torn ligaments requiring four surgeries: (1) open reduction internal fixation the day after the accident with placement of four screws and a long pin, (2) cleaning and washing out wound infection a week later, (3) saphenous nerve surgery three months later to bury the nerve’s torn end (previously causing electric shock type shooting pain) inside the bone and tissue to get its ends away from everything), and, (4) ankle fusion surgery two years after the accident (see actual trial exhibit below).
  • Left wrist distal radius intra-articular fracture treated with an external fixator in place for several weeks.


Illustration Courtesy of Anatomical Justice, LLC

Tookes spent about a week in the hospital initially, then was transferred to a nursing home for seven weeks of rehabilitation. At trial, his treating orthopedic surgeon Nadubeethi Jayaram, M.D. testified that plaintiff’s ability to walk had decreased so much that the ankle fusion surgery was needed to restore his ability to walk again without significant pain. The ankle bones were fused together, using a bone graft from the hip, so that there wouldn’t be any more pain producing bone rubbing on bone.

Unfortunately,  Mr. Tookes was left with a permanent limp from having no ankle joint and new pain developed below the level of the fusion that may require even more surgery. The wrist, essentially healed within months, remains with some residual stiffness.

The first jury determined that Mr. Tookes was 40% comparatively negligent for the accident. On a post-trial motion, the plaintiff argued that there couldn’t be any comparative negligence since the grate collapse was not foreseeable to a layman, but the trial judge refused to disturb the jury’s finding.

Plaintiff appealed the comparative negligence finding and on October 18, 2013, the United States Court of Appeals for the Second Circuit reversed and held there was no comparative negligence at all. The appellate judges stated, in part, that “the evidence did not furnish a reasonable basis for a finding of negligence on Tookes’ part that contributed to his accident.” As a result, Tookes became entitled to 100% of the damages awarded, not just 60%.

The appellate court decision also upheld the defense position that the $300,000 loss of earnings award should be offset by expected Social Security disability benefits in the sum of $93,000.

Inside Information:

  • Tookes returned to work on light duty for eleven months before his ankle hurt so much that he required fusion surgery following which he was retired from his job on disability.
  • Just before the case was submitted to the jury for the first time, the trial judge explored the possibility of a settlement. Plaintiff’s demand had been $1,400,000 but the defense told the judge her client would not make any offer at all against such a high demand. The judge told defense counsel: “You may pay a dear price for lack of sound judgment on behalf of your client.” Furthermore, the judge said that the plaintiff’s demand was “not unreasonable,” he suggested that there should be a counteroffer and, finally, he said: “I’m telling you your client has just stonewalled this case. They’re entitled to put their neck in the noose.”
  • Plaintiff’s lawyer, Eric Turkewitz, was not only victorious in just about every aspect of this case but also his $1,400,000 pre-trial settlement demand was prescient – the amount ultimately awarded and paid was $1,455,000 ($1,300,000 in damages less the $93,000  disability benefits offset discussed above plus $248,000 representing interest on the damage awards at 9% per annum from the date of the first verdict in 2010.

Erb’s Palsy Damages Affirmed on Appeal in Obstetrical Medical Malpractice Case

Posted in Medical Malpractice

Susan Skelly-Hand was pregnant with her second child when, on February 25, 1996 at about 12:15 p.m., her water broke and her husband drove her to the hospital in Potsdam, New York. There, she met Jose Lizardi, M.D., the obstetrician who, two years earlier, delivered her first child. At 8:15 p.m. Rachel Elizabeth Hand was born weighing nine pounds, two ounces.

Unfortunately, Rachel’s right shoulder had become lodged against her mother’s pubic bone during the delivery (a condition known as shoulder dystocia).

As a result of the shoulder dystocia, Dr. Lizardi had to pull Rachel out with excessive force causing an injury to her brachial plexus (the network of nerves that sends signals from one’s spine to one’s shoulder, arm and hand) and she was diagnosed with Erb’s palsy (a form of paralysis causing arm weakness and loss of motion).

After years of treatment in a mostly futile effort to gain normal function of her right arm, Rachel’s parents brought a lawsuit against Dr. Lizardi alleging that he was negligent in failing to prepare for and perform a cesarean section, a procedure that would have avoided the dystocia and resulting injuries.

After eight days of trial, on June 27, 2012, the St. Lawrence County jurors rendered their verdict that the doctor was negligent, apparently based upon plaintiff’s expert’s testimony that:

  1. shoulder dystocia can be predicted and avoided by evaluating certain risk factors (e.g., if the mother is short and obese and if the baby’s birth weight is expected to be more than about eight pounds 13 ounces) and
  2.  delivery should be by cesarean section when there is a significant risk of shoulder dystocia.

Pain and suffering damages were awarded in the sum of $2,000,000 ($1,000,000 past – 16 years, $1,000,000 future – 65 years) and in Skelly-Hand v. Lizardi (3d Dept. 2013), both the liability finding and the damages awards were affirmed on appeal.

The court’s decision provides a good summary of plaintiff’s injuries and treatment, as well as a discussion of the prior cases and decisions that have dealt with damages in Erb’s palsy cases.

Here are details of the five surgeries underwent by Rachel Hand between the ages of 13 months and 15 years:

  1. Removal of scar tissue, nerve grafting, nerve repair and muscle repair, with an “L” shaped incision in Rachel’s neck from her ear down to her collar bone
  2. Muscle lengthening and re-tightening
  3. Biceps tendon lengthening and tightening of shoulder dislocation
  4. Triangle tilt procedure in which the scapula and clavicle bones were cut to allow the shoulder to tilt back to neutral
  5. Elbow procedure with serial casting to straighten out the elbow

All five surgeries were performed by Texas surgeon Rahul Nath, M.D., a world renowned brachial plexus injury specialist (whose videotaped testimony was shown to the jury). They were very painful, involved extensive travel and disruption and were followed by long periods of rehabilitation with braces, casts and splints. Unfortunately, the surgeries did not resolve the problem of Rachel’s extremely limited use of her right arm and shoulder.

Dr. Nath testified that Rachel has reached maximum medical improvement, it is likely her condition will deteriorate as she gets older and she will develop nerve compression, carpal tunnel syndrome and/or ulnar nerve compression, which may require further surgery.

Inside Information:

  • Plaintiff’s counsel contended that Dr. Lizardi was “marginally competent” highlighting the facts that (a) he was not board certified in obstetrics and gynecology and (b) in 1995, the State of New York suspended his license to practice medicine (the suspension was stayed during a period of probation, though, and he was allowed to continue practice). Over defense counsel’s objection, the trial judge allowed plaintiff to introduce evidence of the suspension.
  • In defense counsel’s summation, the jurors were urged to ignore the defendant’s lack of board certification and his suspension in favor of  adopting the testimony of the defendant’s expert who concluded that (a) a cesarean section was contraindicated and (b) Dr. Lizardi did not deviate from accepted standards of medical care.
  • $2,000,000 for pain and suffering appears to be the highest amount sustained by an appellate court in New York in an Erb’s palsy case. Plaintiff was represented by The Mills Law Firm, both at trial and on the appeal.
  • The total judgment was approximately $3,150,000. In addition to the $2,000,000 for pain and suffering damages, the jury awarded economic damages in the sum of approximately $1,150,000 as follows: $500,000 for reduction in lifetime earnings, $410,000 for future medical evaluations, services, therapy and equipment and $240,000  for past medical expenses.
  • The economic damages claim was supported by the testimony of plaintiff’s vocational rehabilitation expert, Kenneth W. Reagles, Ph.D.
  • After trial, the defense offered to settle for $2,000,000, the limits of the malpractice insurance policies available to Dr. Lizardi; however, plaintiff rejected the offer. Then, on December 20, 2012, the doctor filed a petition under Chapter 11 of the Bankruptcy Code in order to prevent judgment collection enforcement actions. This month, the the doctor consented to the dismissal of his bankruptcy case.


Hip Fracture Pain and Suffering Verdict Affirmed for Woman Struck by Closing Subway Doors

Posted in Hip and Pelvis Injuries

Georgette Victor, an active, vibrant 72 year old woman, had a full day on October 21, 2008. She escorted a friend to Kennedy Airport and then went to Manhattan to do some shopping. After that, she headed home to Queens, boarding the #7 subway train at Times Square. When she heard the conductor say the train was an express instead of a local, Ms. Victor got up from her seat and started to leave the train. The subway doors closed on her, though, and she was knocked to the ground sustaining serious injuries.

An ensuing lawsuit against the transit authority resulted in a finding that the conductor was liable for closing the doors too quickly.

Defendant contended that plaintiff recklessly tried to dash out and squeeze through the closing doors.

Ms. Victor was able to get up but quickly realized she was in great pain – she had sustained a non-displaced intertrochanteric hip fracture and was taken to the hospital by her son who was called to the scene.

The Manhattan jury awarded plaintiff pain and suffering damages in the sum of $850,000 ($400,000 past – three years, $450,000 future – six years). Both the liability finding and the damages awards have now been affirmed in Victor v. New York City Transit Authority (1st Dept. 2013).

As set forth in the decision, Ms. Victor suffered a fractured hip requiring surgery and, as a result, her lifestyle was changed as she was no longer able to travel regularly into Manhattan to visit museums and attend cultural lectures.

Here are additional injury details:

  • open reduction internal fixation surgery with screws and a steel intramedullary rod
  • six days hospitalization followed by two weeks at a nursing home for rehabilitation, one month of physical therapy at home and a few months as an outpatient
  • within three months of the accident, plaintiff was able to resume use of mass transit; according to her surgeon, she made a “very good or excellent recovery”

Inside Information:

  • Ms. Victor appeared at the trial in a wheelchair due to an unrelated stroke she sustained two years after her subway accident. The stroke caused her death on July 23, 2012. The future damages award ($450,000), intended by the jurors to cover a period of six years, will be recalculated pursuant to CPLR 5045.
  • Only one medical witness testified at trial – treating orthopedic surgeon, Edward Cleeman, M.D.
  • Since 2001, plaintiff had suffered from a series of spinal compression fractures. She also suffered from scoliosis. In the year after her accident and before her stroke, she suffered falls, fracturing her foot and her shoulder.
  • Plaintiff’s pre-trial settlement demand was $125,000; her attorney asked the jury to award $400,000 for pain and suffering damages, less than one-half of the amount actually awarded.

Appellate Court Dismisses Neck Injury Verdict – Plaintiff Failed to Prove Need for Cervical Fusion Surgery Not due to Prior Accident

Posted in Neck Injuries

Agnes McDonald, a 55 year old elevator operator,  was a rear seat passenger in a two car accident in Manhattan on January 20, 2005.

She was injured but did not seek medical treatment until four days later when she saw a physician at a local medical clinic, complaining of a stiff neck and a burning sensation down her neck and shoulders to her fingers. She underwent physical therapy, acupuncture and chiropractic care over the next three years and struggled with severe neck pain.

Then, an orthopedic surgeon recommended an MRI which showed a disc herniation at C4-5 with nerve irritation that the doctor found to be the significant cause of Ms. McDonald’s pain. On May 7, 2008, she underwent a cervical discectomy with fusion and plating at the C4-5 level.

Unfortunately, her pain was not alleviated by the surgery and she claimed she was so disabled that she could not pick up her grandson or lift anything and she relied upon others for almost all of her activities of daily living.

In McDonald’s lawsuit against the other driver, liability was resolved in her favor and then, on May 4, 2010, a Queens County jury awarded her damages in the total sum of $700,000 including:

  • $200,00 for pain and suffering ($100,000 past – 3 years, $100,000 future – 8 years)
  • $150,000 for past and future loss of earnings
  • $300,000 for past and future medical expenses and
  • $50,000 for past and future household expenses

In post-trial motions, plaintiff argued that the pain and suffering damages verdict was inadequate and should be increased to $950,000 while the defense argued that plaintiff had not met the “serious injury” standard applicable to car accident cases set out in Insurance Law Section 5102(d) and the case should be dismissed. The judge issued an order denying both motions.

On appeal in McDonald v. Kohanfars (2d Dept. 2013), though, the court reversed and dismissed the entire jury award because plaintiff failed to prove that her injuries were caused by this accident, and not by a 1992 accident that also had resulted in cervical fusion surgery (albeit at C5-6, one level below the new injury).

The key on appeal, and the apparent reason the jury rendered a relatively low award in a spinal fusion case, was the fact that Ms. McDonald had in 1996 undergone cervical fusion surgery at C5-6 due to a 1992 injury from heavy lifting.

While plaintiff testified that she hadn’t received any medical treatment between 1997 and 2005 for the injuries sustained in the 1992 accident and was pain free during that entire period, until the new accident, the appeals court ruled that it had to dismiss the case because the surgeon who operated on her in 2008 and testified at trial rendered medical causation opinions that were speculative.

Since plaintiff’s new surgeon only began treating Ms. McDonald in 2007 and hadn’t reviewed her prior treatment records (except for the 1996 operative report), the appellate judges concluded that the doctor had no basis for his conclusion that Ms. McDonald’s current injuries were caused by the 2005 accident as opposed to being pre-existing. The court therefore dismissed the case entirely because plaintiff had failed to prove she had from this accident sustained a “serious injury” and therefore she failed to meet the statutory threshold.

Record Pain and Suffering Verdict for Worker’s Burn Injuries Upheld on Appeal

Posted in Burn Injuries

Christopher Peat was working as a floor refinisher on July 1, 2003 in an apartment at Fordham Hill, a nine building cooperative apartment complex in the Bronx.

The Entrance to Fordham Hill

Mr. Peat, then 37 years old, was applying sealer to the floor of a vacant apartment when he heard a “whooshing” sound. He looked over his shoulder and saw a blue wall of flame headed towards him that he could not escape – before he knew it, his entire body was engulfed in flames.

In that tragic instant, Christopher Peat’s life was forever changed. He was severely burned over most of his body and was hospitalized for many months undergoing excruciating surgical procedures and treatment.

It turns out that the fire was caused when vapors emitted  by the floor sealing lacquer were ignited by an open flame from the pilot light in the apartment’s stove.

A lawsuit followed and on June 24, 2011, after 16 days of trial, a Bronx jury returned a verdict finding the apartment complex’s owner, Fordham Hill Owners Corp., fully at fault (it should have shut off gas in the apartment prior to plaintiff undertaking his work) and awarding Mr. Peat pain and suffering damages in the sum of $16,000,000 ($10,000,000 past – 8 years, $6,000,000 future – 32 years).

The jury verdict both as to liability and as to the amount of damages has now been affirmed in Peat v. Fordham Hill Owners Corp. (1st Dept. 2013).

The $16,000,000 affirmed for pain and suffering in this case is by far the most allowed by an appellate court in New York in a burn injury case.

Previously, the courts approved the following amounts in major burn cases:

As set forth in the appellate court decision, Mr. Peat sustained second and third degree burns over 50% of his body requiring 15 surgeries, extensive physical and occupational therapy and causing significant depression and post-traumatic stress disorder.

Plaintiff was also awarded $2,681,323  for medical expenses ($481,323 past plus $2,200,000 future – 32 years). This award was based upon the testimony and life care plan of plaintiff’s physical medicine and rehabilitation expert Joseph Carfi, M.D. who in turn based his conclusions as to plaintiff’s future medical needs upon the testimony of plaintiff’s plastic surgery expert Robert Goldstein, M.D. and the testimony of plaintiff’s psychiatrist Paul Ladopoulos, M.D. The defense did not call any medical experts to testify.

Here are additional injury details:

  • As he fell to the ground, afire, plaintiff heard his flesh sizzle like “bacon on a skillet” and smelled “burning flesh in the air.”
  • He ran down 17 flights of stairs and was still on fire for six minutes until firemen came and extinguished the fire on his body.
  • Peat was rushed to Jacobi Medical Center where he was admitted for over three months and underwent 14 surgical procedures (debridements, escharotomies, grafts and a tracheostomy).
  • Peat was transferred to Burke Rehabilitation Hospital for over three months of physical and occupational therapy.
  • He returned to the hospital in November 2003 for surgery of his right axilla – a scar contracture release procedure to help improve range of motion of his right shoulder and arm.
  • Heterotopic calcifications in his elbows causing mobility and range of motion deficits.
  • Limited use of hands and deformity of several fingers.
  • Extensive scars on his face, hands, shoulder, thighs, buttocks and torso.
  • Constant pain, sensitivity and decreased sensory appreciation.

Inside Information:

  • Before the verdict, plaintiff had demanded $9,000,000 to settle whereas the defense offered $5,000,000.
  • In summation, counsel for Fordham Owners suggested $2,500,000 for pain and suffering if plaintiff were to prevail on liability. Plaintiff’s counsel suggested that the jurors award between $22,000,000 and $33,000,000 for pain and suffering.
  • Mr. Peat did not receive any medical treatment for his burns during the six years leading up to trial, a fact the defense argued, unsuccessfully, demonstrated that future medical expenses in the millions of dollars were “completely unnecessary” and that claiming them amounted to “piling on.”
  • The defense argued strenuously and in detail that the injuries in the Weigl, LeiMoskowitz and Whitfield cases were far greater than those in the Peat case and that therefore there was no basis for the appellate court to affirm the “runaway verdict” in the Peat case. Plaintiff countered that Mr. Peat’s burns covered much more body surface than in the other cases and that applying current inflation adjusted figures in those cases puts them in line with, or makes their awards more than, the numbers in Peat. The appellate judges in Peat did not address this issue or explain in any meaningful manner the justification for affirming a pain and suffering verdict that was twice the amount of any such verdict previously permitted for similar injuries.
  • Although there was evidence that plaintiff could no longer work, his claim for loss of earnings was withdrawn, apparently because his prior earnings were “off the books” and he hadn’t paid income taxes.


On May 13, 2014, the Court of Appeals denied defendants’ motion for leave to appeal.  Amicus curiae briefs were filed on behalf of The Voice of the Defense Bar, The Defense Association of New York and Law Reform Alliance of New York.

Significant Pain and Suffering Verdict Dismissed on Appeal in Car Accident Case

Posted in Back Injuries, Neck Injuries

Charles Bacon, a 23 year old mechanical engineer, was driving in Manhattan on August 17, 2007 when he was stopped at a red light and his car was struck in the rear.

A week later, Bacon sought treatment with an orthopedic surgeon for complaints of neck and back pain. MRI reports later showed herniated discs at C4-5, T9-10 and L5-S1.

Bacon sued the other driver, liability was resolved in his favor and a damages only trial was held in October, 2010. The jury heard testimony from treating and expert physicians for both sides (as well as plaintiff’s physical therapist) and then rendered a pain and suffering damages verdict in plaintiff’s favor in the sum of $850,000 ($100,000 past – 3 years, $750,000 future – 10 years).

Apparently, the jurors were impressed with Bacon’s inability to resume competitive mountain biking, his continuing complaints of pain and disability and the testimony of his medical care providers that he had sustained significant losses of range of motion in his neck and back.

Members of Bacon’s Overlook Mountain Bike Team

After trial, the defense sought to have the case dismissed but the trial judge declined; he did, though issue a post-trial order reducing the amount of damages to $450,000.

The defense contended that the case should have been dismissed by the trial judge despite the verdict because:

  • the accident was minor with very little damage to the cars and Bacon didn’t seek medical treatment until a week after the accident
  • plaintiff was out of work for only five days, resumed his usual activities quickly, had not undergone significant medical treatment and would not require surgery
  • there was only one herniated disc (in the back), it pre-dated the accident and was consistent with someone who, like plaintiff, had been an avid mountain biker for the prior nine years

In Bacon v. Bostany (2d Dept. 2013),  the court agreed with the defense in reversing and dismissing the entire case. It did so because the testimony “did not fulfill the objective evidence requirement” under the cases interpreting Insurance Law Section 5102 [see below] since there was no explanation as to what objective tests were used to determine Bacon indeed had significant limitations in the range of motion in his spine.

This case illustrates the difficulty facing plaintiffs with spinal injuries who sue to recover pain and suffering damages in New York courts.

Their problem, apart from their injuries, is that Insurance Law Section 5104 limits their right to recover damages to those cases involving “serious injuries.”

The definition of “serious injury” is set forth in Insurance Law Section 5102 (d), as follows:

  • “Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Eric Turkewitz has discussed this statute and its ramifications at New York Personal Injury Law Blog: “This significant restriction on bringing suit was a trade-off for the guaranteed health benefits of the No-Fault Law that started in 1973 and was amended in 1977 to the present formulation.” Others discuss this here (Huntington attorney Carol Schlittt) and here (Buffalo attorney Roy Mura).

Turkewitz suggests that the law can work in the counter-productive manner of encouraging people to stay home and not work. He notes that a fractured pinky that heals in a few weeks would qualify as “serious” under the law, but soft tissue back pain that lasts for years might not, especially if objective results don’t turn up on radiological studies or the physician does a poor job documenting the injury and the specifics of the limitations.

Inside Information:

  • As indicated, the so-called “Threshold Law” applies only to car accident cases in New York. Had this verdict been in a construction or slip and fall accident case, the verdict would have been upheld since the grounds relied upon by the appellate court in its decision dismissing the case would’ve been inapplicable.




State of New York Liable for Damages in Two Cases involving Roadway Fatalities

Posted in Wrongful Death

On January 23, 2004, Jason Rhoades sustained fatal injuries when the vehicle he was driving slid across the roadway over a bridge on Interstate 81 in Syracuse, struck a snowbank packed against the concrete barrier guard at the edge of the bridge, and his car vaulted off the bridge to the road below.

Thirty-six hours later, William Gardner also sustained fatal injuries when he drove along the same roadway, struck the same barrier, vaulted over the snow-covered concrete barrier and fell to the street below.

Scene from Trial Exhibit

Jason Rhoades was married to Isabelle Rhoades and the father of their two young children (two year old Luke and two month old Isabella) when he died at the age of 28. He had been elected East Syracuse mayor at the age of 24 and was a director of communications products and information technology at Cornell University earning $142,424 a year.

William Gardner was married for 14 years to Cynthia Gardner before they divorced in 2000.  He was the father of their two children (19 year old Brandon and 15 year old Ryan) when he died at the age of 50. He had served in the United States Air Force for 25 years attached to the space program before retiring in 2001 as a full colonel. Then, he worked as a project manager in space technology at Jet Propulsion Laboratory at California Institute of technology in Pasadena, California earning $155,584 a year (plus an Air Force pension of $45,454 a year).

Each of the families asserted claims against the State for personal injuries and economic damages for wrongful death. In both matters, the Court of Claims judge in Syracuse (Diane L. Fitzpatrick) found that the State was not liable for these single car accidents and she dismissed the lawsuits after trial; however in each case, the judge’s decision on liability was reversed by the appellate court.

In both Grevelding v. State of New York (4th Dept. 2012) [Peter Grevelding is the named claimant as he was the executor of the estate of Mr. Rhoades, his nephew] and Gardner v. State of New York (4th Dept. 2010), liability against the State was imposed by the appellate court because the State, by its plowing methods, created the snowbank which constituted a dangerous condition and was a substantial cause of the accident.

New trials were ordered to determine the amount of damages. The damages trials were held in 2012 and 2013 and the judge’s decisions in each of those damages trials have now been handed up.

In the decision following the damages trial in Grevelding (Court of Claims 9/30/13), damages were awarded in the total sum of $14,797,888 and in the decision following the damages trial in Gardner (Court of Claims 11/19/12), damages were awarded in the total sum of $3,569,985. Both cases are still pending, with collateral source and so-called Article 50-B hearings required and appeals expected from all parties.

Each of the cases involved substantial economic damages (as well as claims for pre-death personal injury and loss of parental guidance).

In Grevelding, the economic damages were $10,347,888, as follows:

  • Funeral Expenses – $15,602
  • Loss of Income, Support and Household Services – $8,728,980
  • Loss of Inheritance – $1,603,306

In Gardner, the economic damages were $2,494,985, as follows:

  • Funeral Expenses – $6,985
  • Loss of Financial Support – $1,122,500
  • Loss of Inheritance – $1,365,500

The pre-death personal injury claims in each case were hard fought and involved gruesome evidence.

In Grevelding, the judge awarded $250,000 for pre-impact terror based on testimony from witnesses and several experts for both sides, including the county coroner who examined Mr. Rhoades. He opined that Mr. Rhoades lived for one to two minutes struggling to breathe after the impact fractured his neck and  before he died in his vehicle due to asphyxiation. Dr. Michael Baden, world renowned formed New York City Medical Examiner, testified for the defense. He agreed with claimant’s position that the cause of death was multiple blunt force trauma however he contended that Mr. Rhoades did not asphyxiate but was rendered immediately unconscious from the injuries to his brain and lungs.

The judge declined to make an award for pre-death physical pain and suffering finding that although Mr. Rhoades may have lived, breathing and heart beating for a moment or two after impact, there is “no direct  or circumstantial evidence that he was conscious.” Nonetheless, she awarded the $250,000 for pre-impact terror based on her inference that Mr. Rhoades, “as he approached the top of the snowbank without stopping,” likely endured “more than two seconds” of acute fear of death or serious harm.

In Gardner, the judge also awarded $250,000 for pre-impact terror. She based the award on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and fall to the street below. The judge concluded that “several seconds” transpired from the moment Col. Gardner’s car hit the median barrier, left the bridge railing and landed on the street below. In this case, too, the judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.”

The parental loss of guidance awards were substantial in both cases and involved poignant testimony about the relationships between and among the deceased fathers and their children.

In Grevelding, the judge awarded $2,000,000 ($900,000 past – 9 years, $1,100,000 future -  7 years) for Luke (11 years old at trial) plus $2,200,000 ($900,000 past – 9 years, $1,300,000 future -  9 years) for Amelia (2 years old at trial). These awards were based upon the testimony of several witnesses who described Mr. Rhoades’ “enveloping love for his children and daily involvement in their care and development,” as well as the expert testimony from a psychologist with a doctorate in human development and family studies who discussed the impact of the loss of a father on his children.

In Gardner, the judge awarded $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) plus $475,000 ($425,000 past – 9 years, $50,000 future 3 years) for Ryan (24 years old at trial). These awards were based upon the testimony of the sons about how involved and supportive Col. Gardner was in their lives as well as testimony from their mother and several of Col. Gardner’s friends. The judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers.

Inside Information:

  • So-called loss of parental guidance damages are deemed recoverable in New York by virtue of Estates, Powers and Trusts Law Section 5-4.3. While the statute merely refers to “pecuniary injuries resulting from the decedent’s death,” the courts have for more than one hundred years held that the word “pecuniary” includes injuries arising to children from the loss of a parent, who owes them a duty of nurture, and of intellectual, moral and physical training.
  • In Gardner, the defense urged a modest award, if any, for loss of parental guidance, contending that “Brandon and Ryan had already substantially received the benefit of their father’s advice and guidance before he died, during the most important formative years of their development.”



Knee Injury Verdict Reinstated

Posted in Knee Injuries

On October 25, 2008, Betty Luna boarded a city bus at Archer Avenue and Southern Boulevard in Queens. She paid the fare, began walking back to get a seat holding on to the pole and then she fell to the floor onto her right knee when the bus suddenly accelerated and pulled away from the stop.

The 47 year old Dr. Luna (a pediatrician then working in a Bronx child care clinic) was in excruciating pain. She remained on the bus floor for several minutes. Helped to a seat by fellow passengers, she continued on to her destination in the Bronx, hobbled home, iced her knee overnight and took a taxi to the local emergency room in the morning. She was diagnosed with a severely torn meniscus.

Dr. Luna sued the transit authority claiming that the bus driver negligently caused her to fall by suddenly, violently and without warning accelerating the bus.

After a seven day trial in the Bronx, the jurors agreed and on May 3, 2012 returned a verdict awarding Dr. Luna $1,000,000 for her pain and suffering damages ($500,000 past – 3.5 years, $500,000 future – 34 years).

In a post-trial motion, the transit authority argued, successfully, that the damages award was excessive and the trial judge ordered a reduction of the pain and suffering award to $350,000 ($100,000 past, $250,000 future).

Plaintiff, not surprisingly, appealed contending that the trial judge’s reduction was drastic and totally unwarranted; furthermore, plaintiff urged the appellate court to order an increase in the future pain and suffering damages award to at least $700,000.

Now, in Luna v. New York City Transit Authority (1st Dept. 2013), the $1,000,000 jury award for plaintiff’s pain and suffering has been reinstated. [The decision erroneously states that it was 7 years and 7 months from the date of the accident to the date of the verdict - it was 3 years and 6 months.]

As set forth in the court’s decision, as a result of the accident, Dr. Luna’s torn meniscus required arthroscopic surgery (six weeks after she fell). During her surgery, a large portion of plaintiff’s right lateral meniscus was removed, leaving no cartilage in that area – “bone on bone” as one of her doctors described it.

Dr. Luna was unable to work for three months, continues to experience significant pain and it is “most probable” that she will require a future knee replacement.


Inside Information:

  • The defense conceded, and the trial judge charged the jury, that the bus driver should be found negligent if indeed he suddenly, unusually and violently accelerated; however, it was claimed, unsuccessfully, that Dr. Luna fell because it was pouring rain at the time and that she fell because of a wet, slippery floor on the bus (for which there would be no liability in this case).
  • Plaintiff explained why she didn’t seek medical treatment until the next day: “Well, I’m a physician. I didn’t see a bone sticking out. I wasn’t unconscious. I wasn’t bleeding. I was embarrassed and I wanted to go home.”
  • Plaintiff’s treating orthopedic surgeon, Stuart Hershon M.D., testified that it was “possible” she’d need a total knee replacement whereas her pain management doctor, Stuart Kahn, M.D., testified much more definitively – he said it’s “highly likely.”
  • The defense doctor, Julio Westerbrand, M.D., was board certified in orthopedic surgery but, due to his own medical condition, had to stop operating in 2004; he offered no opinion as to whether plaintiff will require additional surgery.
  • In closing, defense counsel charged that plaintiff attempted to “play the race card” because “they don’t feel comfortable in their case. They want to try and influence things that don’t matter to try to win.” This was in response to plaintiff’s testimony -  “the bus driver was a white person”, “there is prejudice” and “I am Hispanic minority” -  suggesting that “prejudice” was the reason the bus driver, knowing she fell and seeing her writhing in pain on the bus floor, had not stopped the bus or otherwise helped her by lowering the exit platform.

UPDATE: On April 3, 2014, the decision in this case was revised slightly. See, Luna v. New York City Transit Authority (1st. Dept 2014). The damages numbers stand but the period between the date of the accident and the date of the verdict was corrected (it was 3 years and 6 months, not 7 years and 7 months) and plaintiff’s doctor’s testimony as to her prognosis was corrected (he said it was “highly probable” she will require a future knee replacement not “most probable”).