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New York Injury Cases Blog

Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice Awards

Emotional Distress Pain and Suffering and Punitive Damages Awards Affirmed in Workplace Sexual Harassment Suit

Posted in Psychological Damages, Punitive Damages

Denise Rivera began working for United Parcel Service, Inc. (UPS) in 2001 at a facility in the Bronx. She was promoted several times, eventually to a supervisor position in 2004. Shortly thereafter, a fellow supervisor began a  campaign of sexual harassment which ended with her termination from UPS on July 10, 2007.

ups-office

Ms. Ramos, then 40 years old and earning about $75,000 annually, sued UPS for damages for sexual harassment and retaliation. At the conclusion of a seven week trial in March 2014, the judge charged the jury and the Manhattan jurors then found in plaintiff’s favor on both of her claims and awarded emotional distress pain and suffering damages in the sum of $300,000 (all past – six and a half years) as well as loss of earnings in the sum of $730,000 ($420,000 past, $310,000 future) and punitive damages in the sum of $300,000.

The trial judge issued a post-trial decision ordering a reduction in the loss of earnings awards to $607,750 (discussed below) to which plaintiff consented.

In Rivera v. United Parcel Service, Inc. (1st Dept. 2017), the appellate court affirmed the emotional distress and punitive damages awards as well as the reduced lost earnings awards.

Plaintiff’s problems at UPS began after she became separated from her husband when her fellow supervisor started making advances towards her. She testified that he told her he was available and she should be with him. He called her at all hours but she told him she was not interested in him. Then, she said, he tuned on her started making vulgar and obscene comments to her and was abusive towards her at work. The day after she formally complained, she was assigned to another location, an undesirable one entailing additional work. Then, rumors of her sexual promiscuity with other UPS drivers were spread throughout the workplace. Again she formally complained and again she was promptly transferred to other locations and then fired.

UPS claimed  that the supervisor’s conduct was neither unwanted nor unwelcome and that this case was not about retaliation but instead about plaintiff’s “lies and deception.” Further, defendant claimed, plaintiff falsified records and improperly authorized a premises security breach (allowing a driver to avoid passing through the metal detector at day’s end) and these were the justifiable reasons she was fired.

Defendant argued that $300,000 for emotional distress damages was excessive because, while plaintiff began counseling at the end of 2007 in connection with her failed marriage, it was not until September 2009 that she went for counseling which she attributed to her experiences at UPS (and the counseling was intermittent and lasted only a few months). Defendant urged that this aspect of the award should be reduced to no more than $50,000.

There was no testimony from any health care professional or therapist; instead, plaintiff relied upon her own testimony and records which she argued supported the emotional distress award.

The jury’s past loss of earnings award was reduced by $112,250 because (a)  the jury failed to take into account the amounts which plaintiff earned at several jobs after her termination and (b) plaintiff’s decision (after wrongful termination from one of those jobs) to forego comparable employment constituted a failure mitigate her damages. The future loss of earnings award was reduced by $10,000; plaintiff’s attorney only asked for $300,000 based upon a claimed loss of $30,000 per year for 10 years.

The jury determined that UPS, through its employees, acted with malice and reckless indifference to plaintiff’s rights and to the risk that its conduct might violate the law, its conduct was reprehensible and that plaintiff was thus entitled to an award of punitive damages. After the verdict was rendered, plaintiff elicited the testimony from a UPS finance director confirming public filings showing that in 2013 UPS had net income of $4,372,000,000. The attorneys then made closing arguments as to the punitive damages claim and the judge charged the jury as to the law on punitive damages. The appellate court affirmed the $300,000 punitive damages award after noting the defendant’s “substantial income” and comparing the award with those in similar cases.

Inside Information:

  • Prior to trial, plaintiff successfully moved to preclude evidence of a consensual sexual relationship she had engaged in with a co-employee unrelated to her claims in the lawsuit. The judge ruled that private sexual relationships are essentially irrelevant in sexual harassment cases and that a plaintiff’s private sexual behavior does not change his or her expectations or entitlement to a workplace free of sexual harassment.

Appellate Court Modifies Pain and Suffering Damages Award in Steam Pipe Explosion Case

Posted in Foot Injuries, Leg Injuries

On July 18, 2007 at about 5:20 p.m., Marjorie Kane was standing on the corner of 40th Street and Lexington Avenue in Manhattan, waiting to cross the street when she was suddenly catapulted into the air by an underground steam pipe explosion.

Kane - explosion

A woman walking past the scene of the explosion on 7/18/07.

The explosion created a crater 32 feet square and 16 feet deep and resulted in one fatality, injuries to several others, and extensive property damage.

Ms. Kane, then a 70 year old administrative assistant at a major law firm, ended up under a pile of bricks and stones where she lay helplessly for 40 minutes until she was rescued by a fireman. Incoherent and gasping for air, she was rushed to the hospital where she was admitted and treated for massive leg injuries.

Ms. Kane sued (1) the steam pipe owner and operator, Consolidated Edison Company of New York, Inc. (Con Edison), (2) the City of New York and (3) the contractor that Con Ed used to seal leaks at the steam main, Team Industrial Services, Inc.

On February 19, 2015, a Manhattan jury awarded plaintiff pain and suffering damages in the sum of $11,822,000 ($4,380,000 past – seven and a half years, $7,442,000 future – 15 years). The trial judge ordered a reduction to $4,000,000 ($2,500,000 past, $1,500,000 future).

All parties appealed – plaintiff arguing that the awards were too low and defendants arguing that they were too high. In Kane v. Consolidated Edison, Inc. (1st Dept. 2017), the court determined that the trial judge’s reductions went too far and held that the proper award for plaintiff’s pain and suffering is $4,750,000 ($3,250,000 past, $1,500,000 future).

As stated in the appellate court decision, plaintiff sustained severe injuries to her right lower leg and foot that required multiple surgeries and extensive hospitalization and left her with permanent pain and disabilities.

Here are the injury details:

  • While trapped under the rubble, plaintiff was struck with chunks of asphalt, rock and debris and sprayed by boiling water. She was unable to open her eyes or move and was certain she was about to die.
  • Upon removal from the rubble, plaintiff’s leg below the knee was “detached except for pieces of skin.”
  • Crushed leg with open wound, degloving (ripping away of skin), compound fractures of her right lower extremity – a Grade III-B open tibia fracture – and an open calcaneus fracture.

Type-IIIB-tibia-fracture.png

  • On the day after the explosion, plaintiff underwent open reduction internal fixation surgery to insert an intramedullary nail and five locking bolts into the tibia as well as the first of about six extremely painful surgical wound debridements (she also later underwent about 25 more bedside debridements).
  • Left ventricle rectus micro-vascular free flap and and a split thickness skin graft to her right lower extremity requiring an incision from plaintiff’s chest down to her lower abdomen to remove her rectus muscle and wrap it around her lower calf to her heel to reattach her ankle area and foot.
  • Fifth toe distal tip (one centimeter) excision/amputation (due to gangrene).
  • Closure of heel wound, with skin graft and excision of remaining exposed calcaneous.
  • Due to non-union of tibia-fibula fractures, removal of the nail/rod and application of an I-T Spatial Frame (external fixator) with a wire, six pins and an external foot ring.
  • Surgical removal of the foot plate of the fixator followed six months later by removal of the remainder of the device
  • Seven months of inpatient treatment at hospitals and other facilities, including four months at Bellevue Hospital Center and two months at a nursing home until she was finally discharged to home on 2/11/08.
  • Five prolonged episodes of Clostridium difficile (C. diff.), a bacterial infection with uncontrollable diarrhea (caused by antibiotic medications) that was so bad plaintiff testified she “would rather die than suffer the effects of C. diff again.”
  • Home health aide for six months.
  • Chronic daily unremitting pain, especially in heel.
  • Unable to run, dance, or walk more than six blocks; cannot place right heel directly on the ground; partial foot drop; right leg is one inch shorter than left (requiring orthotics and heel lift); frequent tripping; unable to take subway due to stairs; unable to resume hobby as accomplished pianist (cannot use pedals).
  • Keloid scar running from breast to waist and scarring with discoloration from thigh grafts.

Defendants argued that the pain and suffering awards were excessive because plaintiff made a “good recovery,” albeit with “some residual limitations” and she is active, independent, hasn’t used a cane since 2010 (except for during bad weather), walks an hour a day and has only mild chronic residual ankle pain. Furthermore, they noted that no physician advised plaintiff that she required assistive walking devices any longer and she has not (a) had medical treatment for her injuries for the six year period up to the date of trial (except for physical therapy) or (b) required pain medication for her leg since the fall of 2008.

Inside Information:

  • This was a reverse-bifurcated trial meaning that the jury was asked to determine damages only. Liability has not yet been tried.
  • Plaintiff reached an undisclosed settlement with Con Edison in July 2014.
  • The trial judge charged the jury, among other things, that Ms. Kane had a 10.3 year life expectancy; nonetheless, the jurors awarded future pain and suffering damages for 15 years.
  • In his summation, plaintiff’s attorney asked the jurors to award $16,000,000 for past pain and suffering plus $6,000,000 for the future. One of the defendants’ attorneys suggested a total pain and suffering award of $2,000,000; the other suggested $2,375,000.

 

Pain and Suffering Damages Increased in Head-On Car Crash Case

Posted in Back Injuries

On July 1, 2013, the car Theresa Lamphron-Read was driving on Chili Avenue in Rochester was struck head on by a car whose driver had lost control and crossed into her lane.

police reportIn Ms. Lamphron-Read’s ensuing lawsuit against the other driver and owner, summary judgment was granted and the case proceeded to a trial on damages.

On November 9, 2015, a Monroe County jury awarded plaintiff pain and suffering damages in the sum of $25,000 (all past – 2 1/2 years). Plaintiff’s post-trial motion arguing that the damages award was inadequate was granted and the trial judge ordered an increase to $130,000 ($65,000 past, $65,000 future).

In Lamphron-Read v. Montgomery (4th Dept. 2017), the $130,000 award has been affirmed.

As set forth in the appellate court decision, plaintiff sustained seven non-displaced vertebral fractures – the transverse processes from T5-T9, L-1 and the endplate of a facet at C-4. She was hospitalized for a week but never underwent any surgery nor is any expected.

Plaintiff was required to wear a TLSO (thoracic-lumbar-sacral orthosis) brace for three months.

TLSO back brace

While it was undisputed that as a result of the crash the then 65 year old plaintiff had permanent paraspinal muscular injuries with chronic activity-related back pain for which there was no available remedy, her fractures healed well and her last medical treatment was one year before the trial.

Plaintiff, retired from her employment in daycare and companion care for seniors, testified that sitting and walking aggravate her back pain, she has difficulty falling asleep and she experiences pain with significant physical activities. Her expert orthopedic surgeon opined that plaintiff would always suffer from “activity related pain,” a term he said accurately described plaintiff’s condition as opposed to chronic, unrelenting pain.

thoracic-vertebrae-superior-articular-proceess-transverse-costal-facet

In arguing for a return to the jury’s $25,000 award, defendants noted that plaintiff was able to mow her lawn, walk her dog and do grocery shopping and that the only activities she could not perform are painting and climbing a ladder. They argued that plaintiff made a very good recovery and, at most, would have minor intermittent mid-back pain depending upon her activity level.

Inside Information:

  • In summation, plaintiff’s counsel asked the jury to award $40,000-$80,000 for past pain and suffering damages plus $100,000-$200,000 for future pain and suffering. In her post-trial motion seeking additur, plaintiff sought $50,000 for past pain and suffering and $100,000 for the future.
  • Defendants presented no witnesses at the damages trial and their failure to call their orthopedic surgeon who examined plaintiff resulted in a missing witness charge. They claimed that their doctor’s testimony would have been duplicative since his findings were virtually identical to the findings of plaintiff’s doctor.
  • Plaintiff’s medical expert testified in the absence of her treating doctor because he had moved to Texas and was unavailable.

Pain and Suffering Awards Increased on Appeal for Man Run Over by SUV

Posted in Neck Injuries

On May 26, 2010 Marshall Starkman was sunbathing on a beach chair when a City of Long Beach police officer struck him while driving his SUV patrol car. Mr. Starkman, then 43 years old, was thrown off his chair, flipped onto his stomach and then the vehicle ran over his back.

Photo of Beach from Newsday article

In the ensuing lawsuit against the City of Long Beach and the police officer, plaintiff was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

After a month long trial with 24 witnesses, on February 14, 2014, a Nassau County jury awarded plaintiff pain and suffering damages in the sum of $1,250,000 ($500,000 past – 4 1/2 years, $750,000 future – 30 years). Plaintiff challenged the award as inadequate but the trial judge denied the post-trial motion.

In Starkman v. City of Long Beach (2d Dept. 2017), the appellate court agreed with plaintiff that the award was inadequate and increased the pain and suffering damages to $2,250,000 ($750,000 past, $1,500,000 future).

As set forth in the appellate court decision, plaintiff sustained fractures of transverse processes of three vertebrae and underwent two spinal surgeries.

spine anatomy 2

Here are the injury details:

  • found face down in sand with tire tracks on back; taken by helicopter to hospital; diagnosed with fractures of C-6, C-7 and T-1 transverse processes and three ribs as well as atrial fibrillation and heart contusions; admitted for three days
  • herniated cervical discs and radiculopathy treated initially with physical therapy and pain management (including injections and medication)
  • surgery #1 on 10/5/11 – three level anterior cervical fusion at C4-5, C5-6 and C6-7 with decompression, bone graft and insertion of plate and eight screws
  • non-union of each of the three levels operated on
  • surgery #2 on 2/8/13 – posterior spinal fusion of the C4-5 and C6-7 levels with additional screws
  • heart contusion, premature contractions, ventricular atrial fibrillation and, on 8/2/12, ablation surgery; 70% chance of heart attack (compared to 15% for an otherwise healthy man)
  • permanent 40% loss of range of motion of neck with chronic pain requiring extensive medication
  • post-traumatic stress disorder (PTSD), depression, anxiety and sexual dysfunction
  • unable to return to work, drive or engage in any athletic activities; spends most days at home sleeping, watching television or in some other sedentary activity

The defendants argued that according to imaging studies, plaintiff had long-standing degenerative cervical disc disease, did not need the surgeries he underwent, did not have PTSD and could return to work.

The jury also awarded plaintiff $300,000 for medical expenses ($100,000 past, $200,000 future – 18 years) and $650,000 for loss of earnings ($200,000 past, $450,000 future – 14 years).

Plaintiff had been employed as a store manager at T-Mobile earning about $79,000 a year. He never returned to work and his expert vocational rehabilitation counselor, Charles Kincaid, Ph.D. opined that he never would. To the contrary, defendants’ expert vocational rehabilitation counselor, Beth Greenbaum, Ph.D., opined that there are several jobs, such as sales manager and human resource manager, that plaintiff could perform and which would pay him more than $100,000 a year.

Inside Information:

  • In his summation, defendants’ attorney did not recommend a damages amount but he did suggest that plaintiff was exaggerating his injuries and disabilities; plaintiff’s attorney asked the jury to award $11,500,000 for pain and suffering damages.
  • The judge charged the jury that according to statistical tables, plaintiff’s life expectancy was 30 years and his work life expectancy 22 years. While the pain and suffering award was for 30 years, the future loss of earnings award was for only 14 years (and the future medical expenses award was for 18 years).
  • Mr. Starkman loved to work and had never missed a single day of work in his life.
  • There was no spousal loss of consortium claim. Plaintiff and his wife had been together since 1991 and married in 1997. By 1999, though, they entered into a separation agreement and separated for a year. They were divorced in 2009 but remarried after the accident.

Excessive Force Case against Police Officer – $2,250,000 Pain and Suffering Award for Couple in Altercation; Punitive Damages Awards Vacated

Posted in Back Injuries, Neck Injuries, Punitive Damages

On August 4, 2007 Herminio Pizarro and his girlfriend Olga Garcia were attending a block party on Brook Avenue and 138th Street in the Bronx.

Flyer_Page_001.jpgAt about 7 p.m., Mr. Pizarro interceded when he saw a New York City Police Department (“NYPD”) officer questioning a 14 year old girl. An altercation ensued between Pizarro and the police officer in and following which Pizarro and Garcia were injured. Pizarro was arrested and charged with assault.

The charges were dropped by the district attorney and the criminal case dismissed on January 10, 2008. Pizarro then sued the NYPD and the officer for false arrest, malicious prosecution and excessive force. Garcia joined in the suit claiming her own pain and suffering damages.

Pizarro, a 57 year old unemployed former state corrections officer, Vietnam War veteran and long-time member of the National Guard, claimed that he was merely pleading with the officer to refrain from striking the girl when the officer threw him against a wall, tossed him onto the ground and punched him several times as he was being arrested. Pizarro claimed he was handcuffed and beaten further both in the police car on the way to the police station and in the bathroom at the police station  by six unidentified officers. Garcia’s injuries occurred when she tried to intercede on her boyfriend’s  part and was restrained by two officers while a third sat on her.

A Bronx County jury ruled in favor of plaintiffs on all of their claims and awarded damages as follows:

  1. to Mr. Pizarro for pain and suffering in the sum of $2,000,000 (all past – seven years) plus punitive damages in the sum of $1,000,000 and
  2. to Ms. Garcia for pain and suffering in the sum of $250,000 (all past – seven years) plus punitive damages in the sum of $250,000.

Here are the injury details as to Mr. Pizarro:

  • ER treatment on date of incident presenting with road rash to his head and face, a dislodged tooth and complaining of pain in his neck, mouth and head; he received sutures in his tongue
  • surgery on 2/1/08 – partial corpectomy and discectomy at C5-6, anterior fusion with allograft bone and metal plate
  • surgery on 5/13/09 – removal of old hardware, C4-5 discectomy
  • continuing and constant neck pain, unable to resume competitive or any weightlifting, unable to ride a bicycle; permanent lisp

Here are the injury details as to Ms. Garcia, then 50 years old:

  • ER treatment three days later complaining of low back pain
  • surgery 3/2/09 – L2-3 disc replacement
  • surgery 6/9/09 – decompression of C3-4 disc and removal of hardware
  • continuing pain in neck and back, unable to return to dance hobby, unable to walk long distances without cramps
  • Note: Before this incident, Ms. Garcia had  extensive disc disease requiring three surgeries (two in 2004 and one in December 2005) – lumbar screw fixation, cervical surgery for spinal cord compression and spondylosis and revision of prior instrumentation and removal of lumbar screws. She was disabled and treating continuously with doctors up to the date of this incident. The judge charged the jury as to exacerbation and susceptibility.

Defendants’ medical expert, Sheeraz Qureshi, M.D., testified that both plaintiffs suffered from degenerative/arthritic spinal conditions before this incident and that the incident did not cause the need for any of the surgeries after the incident. To the contrary, plaintiffs’ medical expert, Gabriel Dassa, D.O.., testified that the incident caused the need for all of the surgeries after the incident.

The defendants challenged all of the awards in a post-trial motion and the plaintiffs at the same time cross-moved for a new trial on damages claiming that the jury’s failure to award anything at all for their future pain and suffering was inconsistent and against the weight of the evidence. The trial judge issued a decision denying both motions in their entirety.

Defendants appealed, again challenging all of the awards to both plaintiffs, arguing that there was no basis for any of them. Plaintiffs opposed the appeal but did not cross-appeal as to future pain and suffering damages apparently because the defendants did not challenge the amounts awarded for past pain and suffering damages.

In Pizarro v. City of New York (1st Dept. 2017), the punitive damages awards have been vacated in their entirety because there was insufficient evidence that the named defendant police officer was involved in the assault on Ms. Garcia or that he (a) accompanied Mr. Pizarro to the police station or (b) was involved in the assaults on Mr. Pizarro later in the precinct’s bathroom.

Inside Information:

  • There were indications in his medical records that Mr. Pizarro was intoxicated at the scene; however, defendants were precluded from introducing those records because the trial judge determined they were not germane to his medical treatment.
  • In addition to Ms. Garcia’s two 2009 surgeries, she also underwent back surgeries in 2010 and 2011; however, she was precluded from introducing evidence of the latter two surgeries because they were not included in her supplemental bill of particulars.
  • Plaintiff Pizzarro was precluded from introducing any evidence that he will need future surgery because it had not been included in his bills of particular.
  • In plaintiffs’ closing argument, their attorney asked the jury to award (a) $7,000,000 for Mr. Pizarro’s pain and suffering plus $1,000,000 for punitive damages and (b) $3,000,000 for Ms. Garcia’s pain and suffering plus $1,000,000 for punitive damages.
  • In defendants’ closing argument, their attorney urged the jury to award nothing at all because there had been no false arrest , malicious prosecution or excessive force and “all the plaintiffs have been doing is exaggerating and lying because they saw an opportunity to get a payday from the City of New York and they acted upon it.”

Jury Verdict Declining to Award Damages Affirmed in Fatal Pedestrian Knockdown Case

Posted in Wrongful Death

On January 29, 2013, at about 7:30 p.m., Juan Estevez was attempting to cross Sunrise Highway at its intersection with Henry Street in Freeport when he was struck by a left turning vehicle. Mr. Estevez, 64 years old,  sustained massive injuries in and about his head, ribs and sternum. He was pronounced dead at the hospital three hours later after resuscitation efforts failed. He was divorced, retired, lived alone and survived by three adult sons.

Scene of Accident

Scene of the Accident

In the ensuing lawsuit by the decedent’s estate against the driver, a Nassau County jury determined that both the driver and the decedent were at fault for the accident (the driver 22% and the decedent 78%) but that the estate was not entitled to any damages at all for pre-impact terror, pre-death pain and suffering or loss of parental guidance.

In Estevez v. Tam (2d Dept. 2017), the jury verdict was affirmed. The only damages issue on appeal was loss of parental guidance as plaintiff did not challenge the verdict as to either pre-impact terror or pre-death pain and suffering.

Mr. Estevez’s sons were 34, 40 and 44 years old at the time of trial and they testified regarding the tight knit family bond they had with their father and that they talked to him often and strongly relied upon him frequently for guidance. The defendant noted, though, that (a)  each of the sons lived on his own with their own families, (b)  each was self-sufficient (there was no evidence that their father gave them any financial support) and, (c) the sons offered no specific testimony or evidence that they relied upon their father for counsel or guidance. While it appears the appellate court acknowledged that there was some evidence of loss of parental guidance, the court nonetheless affirmed the verdict awarding nothing for this damage claim because the jury was entitled to weigh the testimony on this issue and determine for itself which version preponderated.

As to liability, the defendant claimed he could not have avoided the impact because the decedent was wearing dark clothing, walking outside the crosswalk and against the light (which he and his passengers all testified was green for him and red for pedestrians)  and ran into the side of his car (the driver’s side mirror was knocked off during the incident). He never saw Mr. Estevez before impact and had no indication a pedestrian was involved until he exited his car.

About 18 months before trial, defendant moved for summary judgment dismissing the claims for pre-impact terror and pre-death pain and suffering. The judge denied the motion and allowed the claims to be resolved by a jury at trial in  part because of a statement from the driver that the decedent “looked conscious” at the scene and an affidavit from a passenger that the decedent was moving his left hand while on the ground before taken away by ambulance.

At trial, the renowned pathologist Michael Baden, M.D., testified as an expert for  the defense. He stated that the decedent suffered brain damage and lost consciousness when the car hit him and that any body movement at the scene was not voluntary. The coroner who performed the autopsy testified for the estate and opined that Mr. Estevez experienced a moment of pre-impact terror as well as pre-death conscious pain and suffering. The jury credited the defense expert, awarded nothing for these elements of plaintiff’s claim and the findings were not appealed.

Inside Information:

  • There was some testimony that the decedent babysat a granddaughter on occasion but no testimony that the girl’s father incurred any costs in retaining a replacement babysitter (which could have formed the basis for a loss of services claim).
  • There was a $150,000 settlement offer that was rejected. In summation, plaintiff’s attorney asked the jury to award $900,000 –  $600,000 for the estate’s financial losses, $100,000 for pre-impact terror and $200,000 for pre-death pain and suffering.

 

 

 

Court Orders Substantial Increase in Pain and Suffering Damages for Woman with Complex Regional Pain Syndrome

Posted in Uncategorized

On July 30, 2011 Anita Castro was seated on a patio having lunch after golfing at a club in Saratoga when a busboy decided to move another table and in the process of lifting it a table leg struck her in the head and face.

The veranda at Saratoga Spa Golf, where this incident took place:

Saratoga Spa Golf

Dazed and in pain, Ms. Castro, then 49 years old, was taken by ambulance to the hospital where she was treated and evaluated for a head contusion and a cervical strain. Ultimately, she developed permanent complex regional pain syndrome (“CRPS).

CRPS-Symptoms-CRPS-Signs-RSD-Signs-RSD-Symptoms

In her ensuing lawsuit against the golf club, the trial judge directed a verdict of liability against the defendant and then the jury awarded pain and suffering damages in the sum of $300,000 ($200,000 past – four years, $100,000 future – 28 years). The trial judge agreed with plaintiff that the award was inadequate and he ordered an increase to $900,000 ($300,000 past, $600,000 future), an amount that has been affirmed on appeal in Castro v. Professional Golf Services, Inc.  (4th Dept. 2016).

In addition, plaintiff was awarded and the appellate court approved past and future medical expenses in the sum of $307,850 ($100,000 past, $207,850 future).

The appellate court decision does not at all disclose the nature of plaintiff’s injuries. Here are the injury details:

  • onset of vertigo on day of accident followed by tremendous, debilitating migraine headaches diagnosed as post-traumatic migraine headaches
  • gradual closing of jaw – within first month, it was virtually closed
  • temporomandibular joint (“TMJ”)  disorder
  • TMJ reconstructive joint arthroplasty surgery (also known as fat grafting surgery) – to remove TMJ discs and stabilize with fat grafts
  • Ketamine infusions, nerve blocks and injections
  • complex regional pain syndrome (“CRPS”) –  permanent

TMJ

The defendant contended that plaintiff’s extremity symptoms, TMJ and migraine headaches all predated the 2011 accident and that prior treatment records made a mention of possible CRPS.  Furthermore, a defense medical expert opined that plaintiff’s multiple complaints of pain do not have an organic (or physical) basis.  In 1983, Ms. Castro underwent cervical fusion surgery and seven years later she had a car accident that aggravated her old neck injury and also caused a mild concussion. In the early 1990’s, she had two car accidents, one causing low back pain, the other a head injury and neck pain. Then, in 1997, she had a slip and fall incident in which she again aggravated her neck injury and sustained a new injury to her lower back leaving her with a frozen shoulder. At the time, she attributed several symptoms to the slip and fall accident, including pain in all extremities. She was  eventually medically determined to be permanently disabled and no longer worked.

Plaintiff stressed that several years after being declared disabled in the late 90’s, plaintiff returned to an active lifestyle. She became very involved in a dance studio and enjoyed golfing four times a week as well as hiking and kayaking. Since the accident in 2011, though, Ms. Castro’s physical condition greatly deteriorated and she suffers from continuing and debilitating migraine headaches, wears special glasses due to extreme light sensitivity, can only eat soft foods, endures constant pain throughout her body especially in her bones and joints, is extremely weak and requires a cane to walk.

Inside Information:

  • In his closing argument, defense counsel suggested an award of $150,000 for past pain and suffering and $100,000 for the future. Plaintiff’s attorney did not suggest or even mention any amounts for his client’s pain and suffering. He simply asked the jurors to “take into consideration the pain and suffering”endured, and her loss of enjoyment of life, both in the past and permanently in the future.
  • A total of nine physicians testified (seven for plaintiff, two for the defense), including plaintiff’s expert Mark A. Piper, M.D., D.M.D, one of the world’s leading physicians in the treatment of CRPS and its association with TMJ. Plaintiff’s TMJ physician and defendant’s dental expert both recognized Dr. Piper as an expert in CRPS and TMJ and both had attended his lectures.
  • The jurors viewed a videotape of plaintiff taken by a friend one month before her 2011 accident. It showed her playing with her nephews on a putting green and the trial judge described it as impressive evidence of the ” … striking change in the plaintiff’s physical appearance and disabilities.”

Pain and Suffering Awards Affirmed for Knee and Back Injuries in Subway Platform Trip and Fall Case

Posted in Back Injuries, Knee Injuries

On March 22, 2007, Andrew Flores was boarding a subway train at 149th Street in the Bronx when he tripped and fell over a broken portion of a wooden board used to cover the edge of the platform. His right foot became ensnared and stuck in a defect in the board causing his left leg to become caught in the gap between the train and the platform.

149

In the ensuing lawsuit against the transit authority, the Bronx County jurors determined that the defendant was negligent and issued a verdict specifically finding that the wooden board was unsafe and that the defendant should have but failed to correct it. The jurors awarded pain and suffering damages in the sum of $641,000 ($266,000 past – seven years, $375,000 future – 15 years) as well as future medical expenses in the sum of $535,000 (15 years).

In Flores v. New York City Transit Authority (1st Dept. 2017), both the liability and pain and suffering awards were affirmed; however, there is no mention in the court’s decision as to the nature of plaintiff’s injuries.

Here are the injury details:

Left Knee –

  •  torn meniscus and large femoral condyle defect with loose cartilage
  • arthroscopy on 5/15/07 with chondroplasty medial femoral condyle, synovectomy and partial meniscectomy
  • Orthovisc injections
  • continuing painful ambulation and quadriceps atrophy requiring brace or cane and narcotic pain medications

meniscus_repair--04

Back –

  • severe back pain, spasms, decreased range of motion and chronic intractable lumbar radiculopathy
  • epidural steroid injections and narcotic pain medications

epidural1

The award of $535,000 for plaintiff’s anticipated future medical expenses (15 years) was based upon testimony from plaintiff’s pain management physician and orthopedic surgeon that his injuries are permanent and he will require another arthroscopic surgery (cost about $50,000), may require total knee replacement surgery (cost about $100,000) and will require pain management treatment, epidural steroid and Orthovisc injections, medications and other medical care into the future. The trial  judge ordered a reduction of the future medical expense award to $315,250 based upon the testimony regarding what treatment will be needed and the cost estimates. Plaintiff then agreed to the reduction.

Inside Information:

  • There was no mention of back pain in the ER records on the day of the accident and no treatment records for back pain were adduced at trial except for those of plaintiff’s pain management physician with whom he treated for the first time (but continuously thereafter for both his back and his knee) three years after the accident (although he treated with a chiropractor in the interim). In summation, defense counsel stated: “Mr. Flores lost his job and in 2010 this becomes a debilitating back injury and debilitating knee injury that he seeks massive compensation for.”
  • Mr. Flores, then 46 years old, had been employed at the time of the accident helping the homeless as a housing specialist/case manager at the Harlem YMCA; he was unable to return to work for six months. Thereafter he was unemployed (but plaintiff did not claim loss of earnings damages at trial).
  • In 1987, Mr. Flores was incarcerated for five years following felony convictions involving drug use and robberies, facts that were brought out at trial by his attorney and then elaborated upon by defense counsel in cross-examination.

False Arrest, Malicious Prosecution and Excessive Force Claims against Police Officers Upheld and Damages Awards Affirmed

Posted in Facial Injuries

On June 15, 2007 at about 1:30 a.m., Gary Gill crossed the street at Flatlands Avenue near 87th Street in Brooklyn intending to go to his parked car. As he opened his car door, another vehicle pulled up and two men jumped out. In the ensuing moments, the men, undercover police officers with the New York City Police Department (the “NYPD”), scuffled with and arrested Gill. He was charged with possession of a weapon and resisting arrest.

arrest cuffs

The officers claimed they saw Gill, then a 34 year old barber, reaching for a handgun but Gill claimed he did not have a gun and was simply reaching into his waistband to show the officers that the bulge they asked him about was simply a phone.

During the arrest, Gill was struck in the face sustaining fractures and a loss of consciousness.

bones of the face

Gill was then taken in handcuffs to Kings County Hospital where he remained for three days, continuously cuffed to his bed, before he was taken to a holding cell for a few hours at Rikers Island and then released on bail.

After his acquittal on all charges, Gill sued the NYPD claiming damages for false arrest, malicious prosecution and battery.

On June 6, 2014, following the trial judge’s charge to the jury as to the elements required to prove the claims, the Kings County jury ruled in favor of plaintiff finding that the police falsely arrested Gill because they did not have reasonable cause to make the arrest, they used excessive force in effecting the arrest and acted maliciously in initiating prosecution.

The jury then awarded damages in the sum of $590,000:

  • $15,000 for the false arrest,
  • $75,000 for malicious prosecution, and
  • $500,000 for battery – pain and suffering for the seven years from the date of the incident to the date of the verdict

In Gill v. City of New York (2d Dept. 2017) both the liability and damages verdicts have been affirmed.

Nowhere in the decision is there any information as to the injuries sustained by the plaintiff. Here are the injury details:

  • displaced fracture of the zygomatic arch with flattening of the left cheek
  • open reduction surgery to repair the fracture using a Gillies Zygoma Elevator
  • displaced nasal fracture
  • trauma to left ear, substantial facial swelling
  • three day admission at Kings County Hospital, plus one day for surgery at Long Island College Hospital on 6/26/07

Gillies approach zygoma fx

Plaintiff required pain killing medication for several months and was left with scarring around his nose. Although surgery was recommended for his nose, plaintiff declined and his nose healed while the scars faded and he made no claim for the scars at trial.

Inside Information:

  • As set forth in the appellate court’s decision, the jury’s verdict sheet included $500,000 for malicious prosecution but lawyers for both sides and the trial judge agreed that this was an error and that the $500,000 was meant for the excessive force battery pain and suffering claim.
  • There was no testimony from any physician and plaintiff did not assert a claim for future pain and suffering. He conceded that he was able to resume all of his pre-arrest activities without limitations.
  • The amounts awarded by the jury were the exact amounts requested by plaintiff’s attorney in his summation.

 

 

 

Court Affirms Liability against City in Street Defect Trip and Fall Case but Substantially Reduces Award for Future Medical Expenses

Posted in Hip and Pelvis Injuries

On November 5, 2005 at about 7:30 p.m., Theresa Guss was injured in a trip and fall accident in the street when she stepped into a large rectangular deep hole in the street while getting out of the back of a taxicab at the curb abutting her home on Ainslie Street in Brooklyn.

The cab driver heard her scream in pain, found her on the ground and helped Ms. Guss get into her home. It was a Friday night and Ms, Guss, then 54 years old, stayed at home in pain until Monday when she called an ambulance to take her to the local hospital complaining of severe left hip pain and an inability to walk due to the pain. She was diagnosed with a left hip fracture and admitted for surgery.

Anterior view of hip bone and the head of the femur with femural neck fracture; SOURCE: rendered from 3D_normal_hip.mb; orthosurg_replace-hip-total-arthritis_normal_anatomy_line MOD femural neck fracture line Reference: using Zygote skeletal model and texures

In the ensuing lawsuit against the City of New York, on June 11, 2013, a Kings County jury determined that the city had created the hole in the street during an excavation there six weeks before the incident and, therefore, despite the absence of prior written notice, the city was liable for plaintiff’s injuries and resulting monetary damages.

In Guss v. City of New York (2d Dept. 2017), the liability verdict was affirmed but the appellate court agreed with the city that a substantial portion of the damages award was excessive.

The jury awarded $650,000 for pain and suffering   ($433,333 past – 7 1/2 years, $216,667 future – 8 years), an amount that was not challenged on appeal or addressed by the appellate court.

In addition to the award for pain and suffering, the jury awarded $2,025,600 for future medical expenses which included $1,344,000 for future nursing home costs. Finding that aspect of the future medical expenses award unsupported by the evidence and duplicative of the $681,600 awarded for other future medical expenses, the court reduced the future medical expenses award to $681,600.

Here are the details as to the eight years of future medical expenses awarded by the jury, as set forth on the verdict sheet:

  • doctors’ care – $139,600
  • physical therapy – $14,400
  • mental health care – $14,400
  • nursing home care – $1,344,000
  • medications – $480,000
  • transportation – $19,200
  • medical equipment – $14,000

The medical expenses awards were based upon the testimony of plaintiff’s expert in physical medicine and rehabilitation who examined plaintiff in 2011 and reviewed all of her medical records. The city did not produce an expert of its own. Instead, the city argued successfully that, in view of the fact that by the time of trial in 2013 plaintiff was already residing at Nesconset Center for Nursing and Rehabilitation since 2011 and was bedridden, suffering not only from the hip fracture and related complications but also from serious and significant pre-existing medical conditions such as chronic obstructive pulmonary disease (COPD), osteoporosis and depression, and in view of the fact that the nursing home medial records and invoices were not produced, there was duplication and speculation in the award as to the $1,344,000 awarded for nursing home care.

nesconsent

Here are details of the injuries plaintiff sustained in this incident:

  • left femur head and neck fractures requiring total hip replacement surgery two days after the accident and a nine day hosiutal admission
  • infection complication requiring removal of hardware and revision surgery in July 2006
  • multiple hip dislocations
  • two additional surgeries for hip dislocation complications with new hip replacements
  • exacerbation of pre-existing osteoporosis
  • exacerbation of anxiety and depression that pre-existed since 2003
  • bedridden after fourth surgery requiring permanent residence in nursing home

Inside Information:

  • Plaintiff’s expert stated that due to Ms. Guss’s extensive pre-existing exacerbated medical problems “she could probably live at least another five years” but “probably not ten.”
  • Plaintiff was too  sick to testify at trial;  at the time, she was in and out of hospice care for a year. Instead, the jury was shown her videotaped deposition from two months earlier and was read other pre-trial testimony from plaintiff as well.
  • Ms. Guss still resides in a nursing home.