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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Construction Site Accident Verdict Reinstated

Posted in Back Injuries, Internal Injuries

On September 23, 2005, Rafael Lopez was employed as a journeyman laborer for the general contractor at a construction project in Brooklyn  owned by the City of New York. He was involved in the placement of rebar on the roof of a building under construction.

The site of this accident: the Newtown Creek water treatment plant.

While helping a co-worker try to dislodge a piece of stuck rebar, Lopez, then 35 years old, fell backwards and was seriously and extensively injured when he landed on and was impaled by the sharp end of another piece of rebar that was protruding vertically and sharply from the roof’s surface.

Rebar with caps, unlike the one that impaled Mr. Lopez.

Lopez sued the city claiming that his injuries were caused by its failure to keep the site free from sharp projections as required under Labor Law Section 241(6) and a regulation promulgated thereunder, 12 NYCRR 23-1.7[e][2]. On October 28, 2010, plaintiff’s motion for summary judgment on liability was granted and the case proceeded to a trial on damages only.

At trial, the Kings County jury awarded plaintiff pain and suffering damages in the sum of $5,000,000 ($2,000,000 past – five years, $3,000,000 future – 35 years). The trial judge ordered a reduction of the future damages award to $1,500,000.

In Lopez v. New York City Department of Environmental Protection (2d Dept. 2014), the liability determination has been affirmed and the $5,000,000 pain and suffering verdict has been reinstated.

The court’s decision mentions very little about the massive injuries sustained by the plaintiff:

  • The eight inch piece of rebar impaled Lopez through his rectum and up to his abdomen and intestines before it became dislodged at the scene where he lay in excruciating pain and profusely bleeding.
  • Emergency surgery to repair the rectal laceration and have a colostomy bag placed; initial hospitalization  about two weeks.
  • Additional surgery six weeks later to reverse the colostomy and reconnect the bowel tract following which an infection developed resulting in almost four more weeks in the hospital with high fevers and increased pain.
  • More surgery due to abcess formation and adhesions.
  • Herniated disc at L5-S1  requiring spinal fusion surgery in October 2010 after a year of physical therapy failed to alleviate pain
  • Continuing fecal incontinence and sexual dysfunction
  • Continuing back and abdominal pain with inability to lift anything over five pounds, bend to pick anything up, climb, work on a scaffold or sit for long periods.
  • Depression (with extensive psychiatric treatment)

Inside Information:

  • Lopez returned to work about six months after the accident, although only on light duty (as a safety engineer) and with accommodations for his continuing need for health care visits. In September 2011, he advised his employer that he’d be out of work for a week due to terrible back pain. He never returned.
  • During trial, defendant offered $3,000,000 to settle but the offer was withdrawn after closing arguments.
  • In March 2010, with permission from his doctors, Lopez bought a motorcycle which he rode to work about once a week, sometimes at high speeds. He rode after his back surgery in October 2010 but stopped about three months before trial stating that his back “started to flare out” and he was having a lot of pain.

 

 

Court Affirms Both Pain and Suffering and Loss of Enjoyment of Life Awards

Posted in Ankle Injuries, Back Injuries

On March 10, 2008, Cassandra Grace was heading toward the turnstiles at the Third Avenue-149th Street subway station in the Bronx. After descending a flight of stairs, her foot was caught by a depression in cracked tiles on the floor causing her to trip and fall.

Ms. Grace, then a 46 year old dance instructor, was taken by ambulance to the local hospital where she was treated for complaints of ankle, back and knee pain. She was released that day but her pain persisted and she sued the transit authority claiming that it failed to maintain the station in a reasonably safe condition.

On August 3, 2012, the Bronx jury determined that the defendant was fully at fault and awarded pain and suffering damages in the sum of $170,000 ($20,000 past – 4 1/2 years, $150,000 future – 31 years). In addition, the jury awarded loss of enjoyment of life damages in the sum of $45,000 ($20,000 past, $25,000 future).

The defendant appealed, claiming that (a) the liability verdict should be vacated and (b) the damage awards were excessive, in particular the $45,000 for past and future loss of enjoyment of life.

Both the liability and damages verdicts have been affirmed in Grace v. New York City Transit Authority (1st Dept. 2014).

Defendant correctly argued that loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by a jury in assessing damages for pain and suffering. As the court noted in this case, though, the defendant lost its right to contest this error on appeal because it failed at trial to object to the proposed verdict sheet and thereafter failed again to object when the trial judge charged the jury.

Here are the details as to plaintiff’s injuries, none of which are mentioned in the court’s decision:

  • Ankle – completely torn anterior tibiofibular ligament requiring arthroscopic surgery on 10/17/08 in which the ligament ends were sewn together and several pieces of floating cartilage were removed; non-weight bearing for four weeks, CAM boot for another four weeks and air stirrups for eight months; permanent pain and range of motion deficits
  • Backherniated disc at L3-4 with permanent pain and range of motion deficits
  • Knee – torn cartilage with permanent pain and range of motion deficits
  • Unable to return to work as a dancer-instructor (though about a year before trial she was able to find another job in the dance field but only instructing, not dancing in any significant manner)

Ms. Grace underwent about 12 months of physical therapy, faces a lifetime of thrice annual epidural steroid injections in her spine and, although no further surgery is yet indicated,  her expert physiatrist testified that her prognosis is poor regarding all of her injuries.

The defendant contended that Ms. Grace did not need ankle surgery and in any event it had healed well, any pain in her back was from pre-existing degenerative disc disease and her knee injury was minor if anything at all.

Inside Information:

  • Before trial, plaintiff’s settlement demand was $375,000 against an offer of $75,000.
  • In closing arguments, plaintiff’s counsel asked the jury to award $950,000 for plaintiff’s non-economic damages. Defense counsel urged a finding of no liability but, alternatively, suggested no more than $70,000 for the past and nothing at all for the future.
  • Shortly before trial, it came to light that the defendant’s orthopedic surgery expert had treated the plaintiff twice after the accident – in May and June of 2008. Both the doctor and the plaintiff had been unaware of that fact when, in May 2009, plaintiff was examined by the doctor as defendant’s expert.
  • Plaintiff was also awarded damages for (a) past loss of earnings in the sum of $136,000 and (b)  medical expenses in the sum of $171,000 ($36,000 past, $135,000 future). The parties agreed to reduce the loss of earnings award by $71,000 due to disability payments plaintiff received before trial.

 

Jury Award Slashed in Case Involving Autistic Boy Injured at School

Posted in Facial Injuries

On March 25, 2002, Arrin Collins was injured when he fell in class at P.S. 168 in the Bronx. No one saw exactly what happened but one of his teachers noticed blood on eleven year old Arrin’s shirt. He’d sustained some severe injuries in and about his mouth and was taken to the school nurse and then by ambulance to the local hospital.

Arrin had been diagnosed as autistic, was essentially non-verbal and was never able to provide an account of how he was injured.

From most accounts, it appears that there was a large multicolored parachute hanging from the ceiling as a decoration and Arrin pulled it down on himself, his feet got tangled up in the parachute and he tripped and fell striking his mouth on a nearby window ledge.

The parachute from Arrin’s class was not produced at trial.

Arrin’s father sued on behalf of his son claiming that Arrin’s injuries were the result of the school’s having failed in its duty to provide adequate supervision. The defendants (the city, its board of education and two teachers) claimed that they provided the proper amount of teachers and paraprofessionals in Arrin’s classroom and, in any event, the accident was instantaneous and therefore not the result of their negligence.

On December 4, 2010, the Bronx jury rendered a verdict finding that defendants negligently supervised Arrin’s classroom and awarded pain and suffering damages in the sum of $4,600,000 ($1,300,000 past – 8 2/3 years, $3,300,000 future – 66 1/2 years).

In a post-trial motion, the defendants argued that the injuries suffered by the plaintiff do not justify the jury’s award, especially in view of the fact that plaintiff’s counsel in summation asked the jury for only $650,000. The trial judge ordered a reduction of the pain and suffering damages award to $250,000 (without specifying the breakdown between past and future).

Both sides appealed – plaintiff arguing that the trial judge’s reduction was unjustified and that the jury’s award was a fair assessment of the injuries, especially considering that Arrin’s disability left him with a  diminished ability to cope. The defendants argued that the entire case should have been dismissed as the school provided reasonable supervision.

In Arrin C. v. New York City Dept. of Education  (1st Dept 2014), the court affirmed both the liability finding against the defendants and the reduction of the pain and suffering damages award to $250,000.

Here are the injury details:

  • fractured jaw
  • loss of two upper left teeth – one was knocked out in the fall, the other was knocked up into Arrin’s upper jaw bone
  • oral surgery to extract the impacted tooth and insert with wires an arch bar to maintain the space and stabilize other teeth
  • alveolar atrophy – shrunken tissue in the area of the missing teeth
  • future surgery needed – two implants with bone and soft tissue connective grafting and implant restoration with crowns
  • implant revision surgery required after Arrin stops growing and again each 20 years thereafter
  • eight fittings for dentures, each requiring three office visits, up to the time of trial
  • one hour per day maintenance of dentures including extensive cleaning, adhesive placement and securing the dentures in Arrin’s mouth as well as a similar removal process at the end of each day

 Inside Information:

  • Under federal law, 20 USC Section 1414, an individualized education program (“IEP”) is required to define the individualized objectives of disabled schoolchildren. Arrin had frequent tantrums, was easily distracted and was severely impaired in expressive language. His IEP provided for (and the school provided) a staffing ratio of one teacher and one paraprofessional for each six children in his class.
  • The teacher and paraprofessional defendants did not appear at trial and in the judge’s charge the jurors were told they may, therefore, conclude that such testimony would not have supported the defense positions and accordingly draw the strongest negative inferences. Defense counsel  explained their absence stating that they were no longer employed by the city with one in Florida and the other’s location unknown. The jury apparently drew an unfavorable inference from their absence.
  • The jury also awarded $100,000 for future medical expenses, an amount that the trial judge and the appellate court determined should be reduced to $50,000.

 

Pain and Suffering Awards Affirmed in Spinal Injury Case

Posted in Back Injuries

On April 14, 2007, Antonia Corapi went to a party at an indoor sports facility called Sports Underdome in Mount Vernon.

Mrs. Corapi walked down a buffet line taking food from a table placed on an elevated platform, took a couple of steps back from the table and fell backwards off the platform to the artificial turf ground about nine inches below.

A day later, the 72 year old Mrs. Corapi went to see a doctor about back pain and shortly thereafter she sued claiming that the placement of the buffet table so close to the edge of the platform was unsafe and a substantial cause of her fall and injuries. A Westchester County jury agreed but determined that both parties were at fault and rendered a liability verdict apportioning liability 50% on each side.

A damages trial followed at which plaintiff claimed the accident caused serious spinal injuries. On November 28, 2011, the jury awarded pain and suffering damages in the sum of $195,000 ($50,000 past – 4.5 years, $145,000 future – 11.5 years) in addition to $200,000 for past medical expenses and $50,000 for future loss of services and consortium damages sustained by plaintiff’s husband, Peter Corapi.

Both sides asked the trial judge for relief – plaintiff claiming that the pain and suffering and loss of services awards were inadequate, defendant claiming that the medical expense award was in excess of the documented medical bills in evidence. The trial judge issued a decision reducing the medical expense award to $59,992 as requested but declining to disturb the pain and suffering or loss of services awards.

On appeal in Bock v. City of Mount Vernon (2d Dept. 2014), the trial judge’s decision has been affirmed and the pain and suffering awards stand at $195,000, along with the loss of services award at $50,000 and the medical expense award at $59,992 (with plaintiffs to receive only one-half of the total due to the 50-50 liability apportionment).

The appellate court decision simply states that the verdict as to pain and suffering damages “was not inadequate” and leaves the reader with no information at all as to the nature of Mrs. Corapi’s injuries. Here are the injury details:

  • Compression fracture of L-1 vertebral body
  • Surgery #1 on 5/9/07 – L-1 kyphoplasty, under intravenous sedation, reduction of the fracture with 11 gauge needle expansion of the compressed vertebral body and insertion of cement); eight day hospitalization
  • Surgery #2 on 8/17/07 – under general anesthesia, T-11 to L-2 lumbar decompression with L-1  corpectomy, T-11 to L-3 posterior spinal fusion with segmental instrumentation; requiring 25 day hospitalization
  • 19 mm scar
  • multiple episodes of physical therapy for several months
  • wheelchair bound with intractable and permanent back pain

Kyphoplasty Procedure

Mrs. Corapi claimed that her back injury was devastating; however, the defense focused on the fact that she had very significant recent and long-standing prior complaints of back pain and treatment that were either downplayed or forgotten by plaintiff at trial:

  • The x-ray taken of her back one day after the accident revealed osteopenia with degenerative joint disease  “and old compression @ L1.” [Other records indicated that the L-1 fracture was acute or new.]
  • Medical records from three weeks before the accident revealed that Mrs. Corapi fell the day prior and complained of mid back pain and being unable to stand or walk for any length of time.
  • Radiology reports on 5/27/05 revealed a history of back and leg pain and on 6/27/05 and 4/10/06 revealed degenerative disc disease in the lower lumbosacral spine.
  • History of prior back pain since at least 2001 for which plaintiff consulted physicians who (a) ordered bone density tests revealing progressive osteoporosis since 1999 and MRI’s from 2005 showing  spondylosis (narrowing of the spine),  (b) gave her steroid injections and (c) prescribed physical therapy.
  • Handicapped parking permit issued in November 2006 due to very active rheumatoid arthritis.

Plaintiff contended that before the accident, although clinically depressed for 30 years, she led a functional, ambulatory and independent life including babysitting her grandchildren, cooking, cleaning and socializing outside the home. She said she’d never before had back pain anything like what she suffered from after the accident, had never undergone any surgery at all for her back and that since the accident she couldn’t do any of her usual activities and required her husband’s daily assistance for tasks as simple as bathing and dressing.

In addition to the usual directives as to a plaintiff being entitled to an award for for pain and suffering damages caused by a defendant’s negligence, the trial judge’s charge to the jury included a directive that if they found that plaintiff’s pre-existing medical conditions were aggravated so as to cause increased suffering and disability, then she would be entitled to recover damages for any increased disability or pain resulting from such aggravation.

It appears that the jury adopted all or most of the defense contentions that:

  1. Mrs. Corapi had significant pre-existing, degenerative, disabling and debilitating back pain,
  2. the fall simply aggravated or exacerbated her prior back pain and condition, and
  3. plaintiffs’ testimony denying or minimizing Mrs. Corapi’s pre-existing conditions significantly (and adversely) impacted their credibility

Inside Information:

  • Mrs. Corapi started two lawsuits regarding this accident and they were consolidated and tried in Westchester County. The first was brought in Suffolk County based upon plaintiffs’ residence there; the second was brought in Westchester because pre-trial evidence in the first lawsuit disclosed that the City of Mount Vernon was the owner of the land upon which the sports facility is located and CPLR 504(2) mandates that when a city is sued venue must be in the county in which it is situated. Ultimately, the city was dismissed as a defendant and the case proceeded to trial against Sports Underdome alone.
  • Mrs. Corapi died from cardiopulmonary arrest on May 1, 2013 (while her appeal was pending). Her daughter Nina Bock was named executrix and the caption of the lawsuit was then amended to reflect these facts.
  • In closing arguments, plaintiffs’ attorney asked the jury to award $2,800,000 for pain and suffering damages; defense counsel gave no specific number, instead simply asking the jury to award an amount that would be “fair and reasonable.” In post-trial motion papers, plaintiffs’ counsel requested an order increasing the pain and suffering awards to $750,000.
  • The reduction of the past medical expense award appears to have come about because, although a subpoena was issued for the billing records (from Winthrop-University Hospital),  there was no compliance with the subpoena and as a result no admissible evidence of the charges for plaintiff’s second surgery and hospital stay.

 

 

Appellate Court Addresses Damages in Medical Malpractice Death Case

Posted in Medical Malpractice, Wrongful Death

Wilbur Rodriguez, a 44 year old postal worker, went to a hospital emergency room in Manhattan at 11:45 a.m. on Saturday, January 24, 2009. He complained of shortness of breath that started the day before, fever and chills. He was diagnosed with pneumonia and, after 12 hours in the ER, admitted and assigned a room.

Rodriguez was seen in his room every hour or so continuing to complain of shortness of breath and being treated with oxygen via nasal canula or mask. He was last seen by a nurse at about 4 a.m. who noted he had no signs of shortness of breath at that time.

A patient (not Rodriguez) receiving oxygen therapy:

Forty minutes later he was found unresponsive, could not be resuscitated and was pronounced dead an hour after that.

An autopsy report concluded that the cause of death was “bronchopneumonia complicating diabetes mellitus.”

His mother, Evelyn Rivera, a Bronx resident, was his sole survivor and she commenced a lawsuit against the hospital claiming that doctors should have more closely monitored her son by (a) transferring him from the ER to the intensive care unit and, later, (b) transferring him from his room (on a general medical floor) to an appropriate area in the hospital with continuous monitoring.

On April 18, 2012, the Bronx jury rendered a verdict finding that the hospital had indeed negligently caused the death of Mr. Rodriguez as alleged and they awarded economic damages for his mother’s loss of household services in the sum of $720,000 ($40,000 past – three years, $680,000 future – 17 years). The jury declined to award any sum at all for pre-death conscious pain and suffering.

Both parties asked the trial judge to set aside the verdict.

  • Plaintiff argued that there was no basis for the jury to conclude Rodriguez had not suffered in the five minutes or so before he died in view of (a) the many references in the hospital record that Rodriguez had difficulty breathing and was hypoxic, (b) the autopsy report concluding that pneumonia was the cause of death and (c) the testimony of his medical expert Mark Schiffer, M.D. , that the cause of death was respiratory failure due to bronchopneumonia which would necessarily cause suffering as Rodriguez fought, and lost, his battle to breathe.
  • Defendant argued that the future household services loss award was excessive.

The judge granted the defendant’s motion to the extent of ordering a reduction of the future household services award to $340,000 but she denied the plaintiff’s application to set aside the award of $0 for pain and suffering and/or for a new trial on that issue.

In Rivera v. Montefiore Medical Center (1st Dept. 2014), the judge’s post-trial decision has been affirmed. Plaintiff’s award now stands at $380,000 (all for her household services loss).

As indicated in the decision, it appears that the jury awarded nothing for pain and suffering because of testimony from defendant’s emergency medicine expert Mark Silberman, M.D.  that Rodriguez “most likely” died from a sudden, unexpected cardiac arrhythmia (an irregular heartbeat), died instantly and he did not suffer at all. The expert based his conclusion, in part, upon the fact that the autopsy report documented left ventricular hypertrophy (an enlargement of the left side of the heart – the pumping mechanism – which increases risks for cardiac problems).

Ms. Rivera testified that her son had never married, had no children, lived alone and that every day after work he would visit her apartment for two or three hours and help her with household chores (such as  cleaning and shopping). Calculation of her loss of household services claim was based upon the testimony of expert economist Alvin Mickens, Ph.D., who used statistical averages of 15.5 hours a week and an hourly rate of $13.66 to arrive at a 17 year total of $286,202. Therefore, both the trial judge and the appellate court determined that the jury’s award of $720,000 for household services was excessive. They did, though  allow $380,000 (still an amount that was more than the economist calculated) since “pecuniary damages need not match the expert’s assessment exactly.”

Ms. Rivera also testified that her son gave her at least $600 every month to help support her. She, therefore, claimed loss of support or inheritance damages in the sum of $600 per month from the date of her son’s death up through her own life expectancy of about 17 more years. That would have added at least $125,000 in damages; however, there was no documentary proof such as bank records or checks to evidence these payments so the trial judge ruled that plaintiff was precluded at trial from pursuing this claim.

Inside Information:

  • During trial, there was a $300,000 settlement offer and an indication that the defendant would offer more. Ms. Rivera rejected the offer and stated on the record (outside the presence of the jury) that no amount of money would resolve the case and she wanted the jury to render a verdict.
  • In his closing argument, plaintiff’s counsel suggested an award of $600,000 for pain and suffering plus $290,000 for loss of household services.
  • The loss of support or inheritance claim might be the subject of a new, separate appeal because it was not raised or discussed in the context of the post-trial motion and the appellate court stated it was “not properly before us on appeal.”

 

 

Significant Verdict Upheld on Appeal in Nursing Malpractice Case

Posted in Medical Malpractice

On August 31, 2006,  after his usual morning coffee at home in Staten Island, Robert Messina got up and went outside to drive to work. He never made it past the outside of his car where his wife found him – without his keys, shirtless and confused.

An ambulance was called and the 58 year old Messina was taken to the local hospital where he presented with an acutely altered mental status and fever. He was intubated and sedated to facilitate a full work-up, including a lumbar puncture to rule out encephalopathy (brain disease).

After four days in the hospital, doctors noted the presence of a Stage IV pressure ulcer (a bed sore) on Mr. Messina’s right hip.

In a Stage IV pressure ulcer, the skin breakdown extends into the muscle and can extend as far down as the bone. Usually lots of dead tissue and drainage are present:

Messina developed many other bed sores, infections and significant debilitating complications over two months of treatment until he was discharged to a nursing home on October 27, 2006 where he remained (except for three readmissions to the hospital) until October 24, 2007 when he was discharged to home and cared for thereafter with visiting nurse services.

In his ensuing lawsuit, Messina claimed the hospital was negligent because the nurses failed to render appropriate care which led to (a) the development of bed sores and (b) the development of infected bed sores.

The defendant contended that Messina came into the hospital with a life threatening condition, “on death’s doorstep,” and that neither the doctors nor the nurses who treated him did anything wrong.  Defense counsel told the jury that Mr. Messina’s “biggest problem was his lifestyle” – he was morbidly obese (375 pounds) , diabetic, had hypertension and had been a heavy smoker for 40 years – and that as a result Messina developed respiratory problems as well as a kidney problem requiring temporary dialysis in the hospital. Thus, counsel argued, the hospital staff “saved his life” and did not cause plaintiff’s pain and suffering.

Plaintiff’s counsel countered that the injuries sustained in this case were foreseeable and preventable and that Mr. Messina was literally abandoned for days at several critical times by the nurse in charge of wound care treatment.  Furthermore, the fact that Mr. Messina had serious medical conditions that landed him in the hospital, counsel argued, was not at all a reason to exculpate the hospital from negligence; rather, it required “greater vigilance” and a departure from the “cookie-cutter care” that was rendered and not changed during plaintiff’s initial admission.

Plaintiff’s emergency medicine and wound care expert, Kelly Johnson-Arbor, M.D., made three findings:

  1. treatment of the pressure ulcers was not adequate and kept them from getting better,
  2. plaintiff was not provided with appropriate pressure relief surfaces (such as a bed specifically designed for patients as overweight as plaintiff was), and
  3. the nursing staff did not look for the presence of osteomyelitis which was very likely present during his first admission.

The type of bed (which is used with a six inch thick mattress), from Big Boyz Industries, that plaintiff’s expert testified should have been used to give plaintiff more pressure relief and reduce the likelihood of osteomyelitis:

On June 3, 2011, the Richmond County jury found that the hospital was negligent in its care and treatment of plaintiff during his initial two month admission and they awarded damages in the sum of $5,402,748 as follows:

  • pain and suffering damages in the sum of $2,992,000 ($1,000,000 past – five years, $1,992,000 future – 16.6 years)
  • future medical costs in the sum of $2,193,748
  • future lost earnings (Messina had been a kitchen designer) in the sum of $162,000 (3.6 years) and
  • loss of services and economic damages to plaintiff’s spouse in the sum of $55,000

In Messina v. Staten Island University Hospital (2d Dept. 2014), both the liability finding and the damages awards have been affirmed.

The court’s decision mentions that plaintiff sustained skin ulcers but otherwise contains no mention at all of the extensive injuries in this case which include:

  • development and progression of right hip sacral decubitus ulcers, Stage IV
  • infection of right hip ulcer with osteomyelitis leading to a dislocated hip that needs replacement surgery but doctors have declined to operate because the bone is chronically infected
  • bilateral buttocks decubitus ulcers, Stage IV
  • right heel and bilateral feet decubitus ulcers, Stage IV
  • scrotum and penis ulcers
  • severe infections of ulcers
  • more than a dozen surgical debridements
  • inability to take care of bodily and toilet functions
  • constant pain requiring Morphine and Percocet
  • massive scarring
  • permanent confinement to wheelchair (except for being able to take a few steps with a walker)

Inside Information:

  • There was confusion in the courtroom when the jury announced its verdict. After awarding $1,000,000 for five years of past pain and suffering they awarded only “$120,000 for 11.6 years” for future pain and suffering. Plaintiff’s counsel, Mitchel Ashley, asked the judge to bring the jury back and question them because it appeared that the jurors intended the $120,000 to be multiplied, and by 16.6 (not 11.6) years, in order to come up with the actual amount for total future pain and suffering.  Also, the jury initially awarded “$132,153.50 for 16.6 years” for future living expenses. After questioning the jurors and sending them back to deliberate twice more, it became perfectly clear that their intention was to award $1,992,000 for future pain and suffering and $2,193,748.10 for future medical expenses (in each case, for 16.6 years).
  • Defense counsel highlighted the fact there was no diagnosis of osteomyelitis in the initial admission records of the hospital and argued that the wound infection did not occur until plaintiff was at the nursing home. Plaintiff’s wound care expert, though, testified that either an MRI or a bone scan is the definitive test to evaluate osteomyelitis, neither was performed and this failure prevented early diagnosis of and treatment for chronic osteomyelitis (without which wounds were kept from healing and further debilitating infections developed).
  • The jury found that the nursing home had also been negligent in the manner in which it cared for plaintiff  and that its conduct contributed to causing plaintiff’s ulcers or osteomyelitis. The jury apportioned liability 75% to the hospital and 25% to the nursing home. Before trial, though, plaintiff had voluntarily discontinued his lawsuit as against the nursing home. Accordingly, the hospital remained the sole defendant liable to pay the damages awarded.
  • Charles Kincaid, Ph.D., testified as a life care planner expert for plaintiff (the defense did not call its own expert) and the jury essentially accepted his figures as to plaintiff’s future medical expenses.

 

 

 

 

 

 

New York’s Highest Court Rules on Damages in Multiple Fatality Motor Vehicle Rollover Case

Posted in Wrongful Death

On July 1, 2000, 60 year old Steven Motelson lost control of his 1998 Ford Explorer sport utility vehicle on Route 17 in Goshen. It rolled over nearly four times and landed on the driver’s side. The roof of the car collapsed onto Steven’s head and caused his death at the scene.

Steven’s 36 year old adult son, Gary Motelson, sitting in the front  passenger seat, ended up physically uninjured in any significant way but, after the car rolled over, Gary ended up suspended by his seat belt, hanging above his father.

In the rear of the vehicle were Gary’s sons Brian and Evan. Both were ejected. Evan (five years old) sustained minor physical injuries but devastating psychological injuries. Nine year old Brian Motelson, died the next day.

In their ensuing lawsuit, the Motelsons alleged that the crash was caused solely by Ford’s defective designs as to:

  1.  the rear seat belt system (causing the ejection of the boys),
  2.  the roof (because its structure was too weak and not capable of sustaining a rollover without crushing, which caused Steven’s death), and
  3.  the cable on the speed control system (causing the vehicle to experience a sudden unintended acceleration).

Ford contended that the accident was caused by Steven’s negligent driving and that the car was not defectively designed in any manner.

After a month long trial in Richmond County in March 2008, the jury found that Steven was not at all at fault but they rejected plaintiffs’ sudden acceleration and defective rear seat belt claims and upheld only the roof design defect claim. The effect of those findings was that the jury awarded damages only for Steven’s estate – in the sum $6,500,000 ($1,500,000 for loss of earnings to his wife plus $5,000,000 for the economic loss to his wife and children).

The jury found that both boys in the rear – Evan and Brian – were not wearing their seat belts and therefore made no award at all with respect to either of them.

Similarly, the jury made no award at all to Gary because he was physically uninjured, walking away from the crash with only a bruised collarbone. He was wearing his seat belt.

In a decision dated March 26, 2009, the trial judge ruled upon post-trial motions:

  • declining to set aside the liability determination against Ford
  • reducing the $6,500,000 in economic damages to $5,000,000  ($1,327,000 for loss of earnings, in accordance with the testimony of   plaintiffs’ expert economist Conrad Berenson plus $3,673,000 for other pecuniary damages related to Steven’s death such as the anticipated increased value of a real estate business he was expanding and the support he would have given to his heirs) and
  • awarding zone of danger extreme emotional distress damages to Gary in the sum of $3,189,055  and to Evan in the sum of $5,457,900 (both underwent substantial psychiatric treatment after the crash and experts testified as to their lifetime need for, and huge costs of, treatment and medication)

Ford appealed and in Motelson v. Ford Motor Co. (2d Dept. 2012)  the liability finding against it was again upheld; however, the appellate court reversed and dismissed the trial judge’s zone of danger awards declaring that the issue had not been submitted to the jury.

Also, the appellate court further reduced the economic damages awarded to Steven Motelson’s widow – from $3,673,000 to $674,599 ($500,000 for loss of inheritance plus $174,599, the amount testified to by plaintiffs’ expert economist as the “household services” loss).

As set forth in the seminal case of Bovsun v Sanperi (Court of Appeals 1984), zone of danger damages are recoverable in New York only where a plaintiff: (1) observes a serious injury or death of an immediate family member in his presence that is caused by the defendant’s conduct; (2) plaintiff is contemporaneously threatened with bodily harm from the same conduct; and, (3) the observation is the cause of plaintiff’s serious emotional disturbance.

On October 22, 2013, New York’s highest court agreed to hear the appeals of Gary and Evan Motelson as to the dismissal of their zone of danger awards; however, on November 18, 2014, the Court of Appeals affirmed the Appellate Division’s order. The high court noted that the issue of whether Gary and Evan sustained emotional distress injuries due to being placed in the zone of danger was not argued to the jury, addressed in the trial judge’s charge or submitted to the jury on the extensive verdict sheet.

The damages awards in this case now total $2,001,599 (before interest) as follows:

  • $1,327,000 –  loss of earnings
  •  $  500,000 – loss of inheritance
  •  $  174,599 –   loss of household services

Inside Information:

  • There was a third rear seat passenger – 21 year old family friend Mitchell Slepian. He sustained a traumatic brain injury resulting in permanent cognitive deficits, a right orbital fracture requiring surgical repair including insertion of an implant, several rib fractures, two fractured vertebrae, a fractured finger and permanent scarring. On June 19, 2007, before trial, Slepian settled his case against Ford for $1,750,000.
  • Historically,  zone of danger damages have been allowed only with respect to parents, children and spouses; grandparents were never held to be immediate family members. The parties briefed this issue (with respect to Evan) but it was not ruled upon because the zone of danger claims were dismissed on other grounds.

Appeals Court Affirms Significant Verdict for Pain and Suffering in Ankle Injury Case

Posted in Ankle Injuries

On August 11, 2008,  Fredy Figueroa was employed as a sprinkler system installer in connection with a $350,000 landscaping project in the backyard of a home in Nissequougue (Suffolk County). Fredy was excavating a two foot trench when the retaining wall next to it collapsed and pinned him inside the trench for 10 minutes, requiring several workers to dig him out and causing significant ankle injuries.

The Scene of the Accident

Fredy sued Ireland-Gannon Associates, Inc. (“IG”), the landscaping and design company that was the general contractor and construction manager of the project. He also named as defendants the electrical contractor, the masonry contractor and the homeowners but they were all either dismissed before trial or found not liable by the jury.

On May 9, 2012, the Queens County jury (plaintiff sued there because that’s where he lived) returned a verdict finding IG liable under Labor Law Sections 200 and 241(6) and common law negligence. A separate damages only trial ensued.

On May 30, 2012, the jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $2,280,000 ($1,000,000 past – 3 3/4 years, $1,280,000 future – 40 years).

The defendant appealed claiming there was no basis for finding it was liable because (1) there was insufficient evidence that IG had the authority to control the manner of work resulting in the accident, as required under Labor Law Section 200, (2) there was no structure incident to the excavation, as required under Labor Law Section 241(6) and related regulations and (3) there was insufficient evidence that IG was negligent. Defendant also claimed that the damages awarded for pain and suffering were excessive.

In Figueroa v. HLM Electric, Ltd. (2d Dept. 2014), the appellate court rejected all of defendant’s arguments and affirmed the jury’s imposition of liability against IG.

Without any mention at all as to the nature of plaintiff’s injuries, the appellate court affirmed the $2,280,000 verdict for pain and suffering. Here are the injury facts:

  • non-displaced ankle fracture with ruptured syndesmotic ligaments
  • surgery #1 on 9/5/08 – open reduction and internal fixation of distal syndesmotic injury with placement of two cortical screws
  • surgery #2 on 3/13/09 – removal of broken screws and release of superficial peroneal nerve from surrounding scar tissues
  • surgery #3 on 8/14/09 – modified Brostrom procedure (repair of damaged ligaments on the lateral side of the ankle), arthroscopic synovectomy and exploration/release of superficial peroneal nerve
  • use of crutches for a year and a half and a CAM boot through 2010, use of a cane thereafter with custom made orthotics and ankle braces
  • continuing pain and limitations of ranges of motion
  • unable to return to work, play sports with young children or take long walks with his wife

Plaintiff’s testifying physician claimed he will need two more surgeries at some point in the future – one to excise a neuroma (an inflamed portion of a nerve) in his foot and the other to fuse his ankle; whereas the defense argued that (1) there was no basis for such conclusions, pointing to the facts that MRI and EMG studies were all negative for any nerve injury, (2) plaintiff never sought treatment with a neurologist for his alleged nerve pain and (3) chronic calcification (indicative of arthritis) consistent with a possible prior injury was noted by plaintiff’s surgeon in his operative report from the first surgery.

Defense counsel argued in his damages summation that (a) plaintiff’s injury was a straightforward ligament sprain that was repaired in the first surgery, (b) the second surgery (to remove broken screws) was “standard procedure” and “nothing unusual,” because the screws were simply removed and not replaced as they had “done their job” and (c) the third surgery was unnecessary because there was no objective evidence or proof of any nerve damage.

Inside Information:

  • In summations, defense counsel suggested that the jury award plaintiff $100,000 for his pain and suffering; plaintiff’s counsel suggested $4,500,000. Plaintiff’s pre-trial settlement demand was $3,000,000 against which no offer was made.
  • Defense counsel argued that the then 34 year old plaintiff was able to return to some form of work and, alternatively, that plaintiff had insufficient evidence of documented earnings or filed income tax returns to  consider an award for lost earnings. The appellate court affirmed the jury’s award for past and future loss of earnings in the sum of $471,000.
  • The trial lasted two months (with a 10 day break after the liability verdict).

Appellate Court Slashes Jury Verdict in Neck Injury Case

Posted in Neck Injuries

At 5 p.m. on Thursday January 11, 2007, Christopher Cicola was stopped for a red light on Route 112 in Medford when a Suffolk County Sheriff’s car struck his 2004 Honda in the rear.

The impact jolted the seat-belted Mr. Cicola forward and back but he was able to get out of his car on his own, declined medical attention at the scene and drove his car home.

At home that night, Mr. Cicola, then 35 years old, had throbbing pain in his neck. He treated himself with ice and the next day called an orthopedic surgeon who was able to see him three days later, thus beginning a course of treatment that included various doctors, cortisone shots, radiological studies and physical therapy and culminated in two major surgical procedures – one almost two years later and a second a year after that.

A CT scan showing the spine after the types of surgery Mr. Cicola underwent – a two level fusion at C4-6:

On February 8, 2007, Mr. Cicola filed a notice of claim (a condition precedent to a lawsuit against a municipality) and on April 10, 2007 he filed a summons and complaint claiming he’d sustained serious injuries in the accident and seeking pain and suffering damages.

On  September 17, 2007,  an order granting summary judgment on liability was issued in plaintiff’s favor and the matter proceeded to a trial on damages only starting on April 17, 2012.

After six days of trial, the Suffolk County jury returned a verdict for pain and suffering damages in the sum of $1,025,000 ($325,000 past – five years, $700,000 future – 35 years).

On appeal in Cicola v. County of Suffolk (2d Dept. 2014), the pain and suffering awards were deemed excessive and reduced to $250,000 ($150,000 past, $100,000 future).

As indicated in the court’s decision, Mr. Cicola underwent two spinal fusion surgeries to repair herniated discs:

  1. on November 18, 2008, an anterior cervical diskectomy and fusion at C4-5 (with a plate and bone graft) and
  2. on October 16, 2009, another diskectomy and fusion, this time at C5-6 (with two plates and a bone graft, after removing the previously inserted plate)

major issue at trial and then on appeal was whether and if so to what extent Mr. Cicola had pre-existing degenerative conditions in his neck.

Plaintiff argued that whatever disc or other degeneration in his cervical spine that may have existed before the car accident was minimal and played no role in his case because:

  • everyone has some normal, age-related degeneration and whatever such condition plaintiff had was minimal,
  • his treating orthopedic surgeon Paul Alongi, M.D. testified that shortly after the accident diagnostic films did not show worn out cervical discs (no “bone on bone”) or any big bony spurs,
  • there were no symptoms of pain before the accident, and
  • Mr. Cicola had never before treated with any healthcare provider for any cervical complaints

The defendants argued that plaintiff’s herniated discs were the result of degenerative disc disease that pre-existed this accident and that whatever injuries plaintiff sustained and treatment he underwent after his accident (i.e., the two cervical fusions) were directly related to degeneration because:

  • x-rays taken four days after the accident showed disc space narrowing with loss of fluid, something the defendants’ expert orthopedic surgeon Arthur Bernhang, M.D. opined usually appears in older persons and is indicative of degeneration,
  • the x-rays also showed (and plaintiff’s surgeon later removed) osteophytes (bony spurs) at C4-5, a condition the surgeon conceded was degenerative
  • plaintiff, who stood five feet 11 inches tall and weighed 210 pounds, lifted weights for 15 years often six days a week, achieving a “muscle bound” physique by “abuse of his own body,” and
  • the impact between the cars was minimal and plaintiff declined medical attention at the scene stating he felt fine

New York law provides that a plaintiff may not recover damages for an aggravation of a pre-existing condition unless it is specifically pleaded in the complaint or bill of particulars. It was not done so in this case. In his charge, the trial judge instructed the jury: “You may only award damages for injuries caused by the accident and not for any previous existing conditions.”

At the time of trial, plaintiff admitted that he’d obtained some relief following his surgeries but testified that he still experienced daily neck pain, was under the care of his surgeon every three months and took Lyrcia to manage his symptoms.  Furthermore, while he could engage in moderate exercise (including lifting weights on machines) but could no longer hike, jog or engage in any sports claiming that “physical activity is non-existent.”

Inside Information:

  • In his opening statement,  plaintiff’s attorney withdrew previously asserted right shoulder impingement and tendinosis injury claims. Defense counsel stated in his opening that the withdrawal was because of the expected testimony of a biomechanical engineer to the effect that it was “impossible” for plaintiff to have sustained such an injury given the physical dynamics of this accident.
  • There was no loss of earnings claim. Plaintiff had been a mortgage broker at the time of his accident, was out of work for one week, lost his job for non-accident related reasons and 18 months later became employed again, this time doing accounting work.
  • Plaintiff’s pre-trial settlement demand was $950,000. Defendant made no offer at all. Plaintiff’s counsel asked the jury to award $750,000 for past pain and suffering plus $800,000 for the future. Defense counsel asked the jury to award no damages at all.

 

Ankle Injury Pain and Suffering Verdict Reduced on Appeal

Posted in Ankle Injuries

Lidy Telsaint was 21 years old on March 21, 2007, having arrived in the U.S. from Haiti just six months earlier in order to rejoin her family here. At 8 a.m. that morning, she was on her way to English language school when she slipped and fell on ice that had formed on the sidewalk just outside her family home’s front door at 550 Dekalb Avenue in Brooklyn. Here is the accident scene:

Ms. Telsaint sustained an ankle fracture and, relying on Section 7-210 of the Administrative Code of the City of New York, she sued the building owner, the City of New York, claiming that the sidewalk was left in a dangerous, icy condition after a snowfall five days earlier.

On April 2, 2012, a Kings County jury agreed with plaintiff finding that the defendant was negligent because:

  1.    the sidewalk where Ms. Telsaint fell was in an unreasonably unsafe condition and
  2.    the ice was in existence for a sufficient period of time before the accident so that a reasonably prudent building owner should have known of it and removed it

The jurors then awarded plaintiff pain and suffering damages in the sum of $2,250,000 ($750,000 past – five years, $1,500,000 future – 44 years).

The city argued in a post-trial motion that there was no basis for liability (and that the damages award was excessive) and the trial judge agreed. He issued a decision finding that there was no valid line of reasoning that could lead to the conclusion that the city had constructive notice of the ice patch that caused plaintiff to fall. Accordingly, the judge set aside the jury verdict and dismissed the lawsuit.

The trial judge did not address the issue of damages but an appellate court has now done so. In Telsaint v. City of New York (2d Dept. 2014), the liability verdict against the defendant has been reinstated in full; however, the damages award has been modified downward to $1,250,000 ($350,000 past, $900,000 future).

There is nothing in the appellate court decision disclosing the injuries sustained by the plaintiff. Here are the injury details:

  • trimalleolar displaced and comminuted ankle fracture
  • open reduction internal fixation surgery with implantation of a metal plate and nine screws
  • transported by car from the scene to Brooklyn Hospital where plaintiff was admitted for five days followed by an additional two days the next month due to an infection requiring intravenous antibiotics
  • casted three months, then crutches for three more months
  • 12 months of physical therapy
  • two permanent keloid scars (one that is almost five inches long)
  • continuing, constant pain causing antalgic gait (limp) and an inability to stand or walk for long periods of time
  • substantial range of motion deficits, especially external rotation
  • need for future surgery to remove painful hardware

The defendant argued that plaintiff made a good recovery and therefore the jury’s pain and suffering awards were excessive, among other reasons, because  she finished her schooling and worked in clothing stores and as a home health aide (for which she took and passed a physical examination). Plaintiff countered that she stopped work in one store because of pain from standing too long, the physical had nothing to do with her ankle and her home health aide job had not included any patient lifting or other physically taxing responsibilities.

Inside Information:

  • In closing arguments, defense counsel told the jurors that if they reach the issue of damages then “plaintiff’s attorney will sit up here and ask you for money. He may ask for large amounts of money. $25,000 -$50,000. He may ask for a lot of money.” In fact, plaintiff’s attorney asked the jury for $750,000 for past pain and suffering plus $1,500,000 for the future – the exact amounts they awarded.
  • The trial judge instructed the jury that plaintiff had a life expectancy of 53 years; however, their award for future pain and suffering encompassed only 44 years.
  • The six jurors were split 5-1 with the holdout later telling the judge that there was “not enough evidence” because there were “no witnesses that actually saw the incident happen.”
  • At the time of trial, plaintiff was enrolled at Medgar Evars College working towards an associate’s degree in biology while working part-time at Macy’s in Brooklyn.
  • Plaintiff submitted to a physical examination by an orthopedic surgeon for the defense whose report was exchanged; however, the doctor did not testify and, in the trial judge’s instructions to the jury as to the law in this case,  a so-called missing witness charge was given. Jerry Lubliner, M.D. testified for the plaintiff as an expert orthopedic surgeon.