Header graphic for print

New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Verdict Affirmed in Delayed Diagnosis Medical Malpractice Death Case

Posted in Medical Malpractice, Wrongful Death

Bennett Rose underwent three colonoscopies – on January 3, 2003, December 14, 2006 and October 11 2007, each indicating the presence of polyps (which were removed), none indicating any malignancy or cancer. About two months after the third test, though, Mr. Rose, then 72 years old, started feeling unusually weak and tired. He was diagnosed with anemia (very low hemoglobin), transfused in the hospital and he started feeling better.

The anemia returned, though, and a repeat colonoscopy on April 28, 2008 revealed a large eight centimeter cancerous tumor in the ascending colon which had metastasized and spread to his liver. He was diagnosed with cecal carcinoma which caused his death on July 15, 2009.

On March 26, 2013, in the ensuing medical malpractice wrongful death case, a Nassau County jury found that the gastroenterologist who performed the three colonoscopies had departed from accepted medical practice by failing to observe the tumor during the colonoscopy on October 11, 2007. The jurors then awarded damages in the sum of $700,000 ($500,000 for decedent’s pre-death conscious pain and suffering  and $200,000 for Mr. Rose’s wife’s loss of services – each for the 15 month period from 4/28/08 to 7/15/09).

In Rose v. Zinberg  (2d Dept. 2015), both the liability and damages verdicts have been affirmed.

Here are some of the damages details, none of which are discussed in the court’s decision:

  • fear of impending death upon diagnosis of metastasis
  • surgery on May 6, 2008 – laparoscopic partial colectomy and removal of the terminal ileum with ileocolostomy, along with removal of a tumor
  • 29 chemotherapy treatments with side effects including fingertips and toes neuropathy, blunted taste, trouble sleeping and a loss of 35 pounds
  • loss of performance status
  • diminished choices as to palliative treatment
  • advancement of metastatic disease, hastening of death and loss of quality of life
  • hospitalized final 10 days before death

While plaintiff’s medical expert conceded that by October 11, 2007 (the date the jury found that malpractice occurred) Mr. Rose’s cancer had already spread and that there was no cure, he explained “performance status” and testified that had the cancer been caught six months earlier, Mr. Rose’s overall condition would have been better, the cancer would not have grown as fast, his quality of life would have been better and he could have had more, better and less sickening treatment.

The defendant argued that plaintiff’s expert’s testimony was conclusory and speculative and that there was insufficient proof that Mr. Rose suffered any injury separate and apart from his cancer itself which was proximately related to the six month delay in diagnosis.

Mrs. Rose testified that during her husband’s final 15 months he depended upon her and couldn’t do things in the house such as empty the garbage and walk the dog so she “took over whatever had to be done.” He did, though, work in his nail polish manufacturing business with his wife every day until the last 10 days of his life.

Inside Information:

  • In his closing argument, plaintiff’s attorney stated as to damages: “I can only tell you that this case is certainly a mid six-figure, possibly even low seven figure number, depending on how people feel about compensation for pain and suffering.” Defense counsel did not suggest any figures, instead simply arguing that there was no malpractice.
  • After the judge charged the jury, they deliberated for several hours before sending out a note asking if one of the jurors could “abstain from fixing a monetary amount.” They returned their 5-1 verdict 45 minutes later.
  • The defendant sought leave to appeal to New York’s highest court, mainly arguing that plaintiff had failed to prove proximate cause in addition to the lack of evidence of consequential damages.  The motion was denied.

Pain and Suffering Award for Boy’s Leg Injury Affirmed on Appeal

Posted in Leg Injuries, Scars

On August 7, 2007 ten year old Roy Nelson, was sitting on a bench outside his apartment complex at 1125 East 229th Street in the Bronx when he was hit in the leg by a rock propelled at high velocity from a nearby lawnmower. It turns out that an employee of the housing development owner, the New York City Housing Authority (NYCHA), was mowing the lawn over a rocky area.

Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.

Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.

Roy’s father sued the housing authority on behalf of his son. The defendant conceded liability for the incident on the eve of trial and the matter proceeded to a trial on damages only.

On May 21, 2012, the Bronx jury awarded pain and suffering damages in the sum of $250,000 (all past – five years).

Both parties made post-trial motions – plaintiff argued that some award of future pain and suffering damages should have been made while the defendant argued that the $250,000 award was excessive. The trial judge denied both applications.

In Roy L. N., Jr. v. New York City Housing Authority (1st Dept. 2015), the appellate court upheld the jury verdict finding that $250,000 for past pain and suffering is not excessive. The issue of future damages was not addressed by the court because plaintiff did not appeal from the trial judge’s refusal to add such an award.

As set forth in the court’s decision, Roy sustained a spiral fracture of his left tibia along with soft tissue damage to the surrounding area. He was hospitalized for three days, underwent debridement of dead tissue and wore a hard cast for 6 1/2 weeks. He recovered with an unsightly keloid scar and his ability to engage in sports was significantly impeded because of the muscle and tendon damage.

Here are further injury details:

  • The fracture was proximal/mid tibia, open and extended through the cortex.
  • Initial hospital treatment included a massive irrigation and debridement to dilute the wound and remove dead tissue.
  • After his hospital discharge, Roy had to use crutches to ambulate and stayed home in the summer with his leg elevated.
  • Upon return to school in September, Roy was still casted and could not participate in any physical activities until January.
  • The keloid scar was 2 1/2 inches long and one inch wide; it is permanent and “cannot be improved.”
  • Roy still had leg pain at the time of trial but had returned to sports such as basketball within three months of the incident.

Inside Information:

  • In summations, plaintiff’s counsel asked the jury to award $300,000 for past pain and suffering plus $400,000 for the future. Defense counsel contended that plaintiff had fully healed and should be awarded no more than $50,000.
  • Each side produced an orthopedic surgeon. Plaintiff’s expert, Leonard Harrison, M.D. testified  that Roy had a mild residual condition that left him walking with his left foot tuned out and that he would always have pain when running, jumping and in cold weather. Defendant’s expert, Herbert Sherry, M.D., opined that plaintiff made an excellent recovery, needs no further treatment and has no limitations.
  • Plaintiff admitted that he’d been playing sports ever since a few months after his accident and that he can “slash down the lane” in basketball and run fast as a wide receiver in football, “but not as fast” as he used to.

Appellate Court Slashes Pain and Suffering Verdict for Police Officer in Car Accident

Posted in Brain Injuries, Knee Injuries

On August 18, 2004 at about 6:30 p.m., Nikura Andino was on duty, riding as as passenger in a New York City Police Department car that was responding to a robbery in progress driving with lights flashing and sirens blaring.


At the same time, Ronald Mills was driving  a New York City Transit Authority Chevy Suburban and the two vehicles collided at the intersection of Boston Road and Pelham Parkway in the Bronx.

The passenger side impact to the police car caused the 36 year old Officer Andino’s head to strike her windshield. She lost consciousness and woke up in an ambulance with head, neck and back pain as well as dizziness and nausea. She was admitted to the hospital for two days and diagnosed with a concussion.

In the ensuing lawsuit, on March 25, 2013, a Bronx County jury found that the transit authority driver was fully at fault and they awarded Andino pain and suffering damages in the sum of $23,600,000 ($600,000 past – nine years, $23,000,000 future – 37 years).

The jury also determined that plaintiff was permanently disabled from work and in need of substantial future medical treatment. Accordingly, they awarded the following damages (as slightly modified by stipulation to conform to the proof):

  1. past and future lost earnings in the sum of $2,671,541 ($282,956 past, $2,388,585 future – 19 years),
  2. future loss of pension benefits in the sum of $2,486,740 (18 years), and
  3. future medical expenses in the sum of $2,388,585 (19 years).

In Andino v. Mills (1st Dept. 2016), the appellate court agreed with the defense and held that the pain and suffering award was excessive and ordered a huge reduction to $3,300,000 ($600,000 past, $2,700,000 future).

The decision mentions that plaintiff sustained a brain injury with permanent cognitive impairments, headaches, nausea and dizziness as well as injuries to her knees resulting in three surgeries and the need for a future knee replacement.

Total Knee Replacement

Here are additional injury details:

  • Brain – concussion with axonal shearing causing observable nystagmus indicative of brain injury;  “totally debilitating” migraine headaches; permanent impairments of concentration, speech and memory affecting everyday life; continued nausea,  dizziness and vertigo; increased susceptibility to development of Alzheimer’s, Parkinson’s and other degenerative conditions of the brain


  • Left Knee surgery #1 on 3/18/05 – torn medial meniscus repair under general anesthesia with 10 mm suture anchors
  • Left Knee surgery #2 on 2/3/06 – partial medial menisectomy, chondroplasty of the patella and medial femoral condyle
  • Left Knee surgery #3 on 7/11/12 –  partial medial and lateral menisectomies, debridement/microfracture of medial femoral condyle, chondroplasty of patella and anterior femur
  • Left Knee future surgery required – total knee replacement due to absence of cartilage and permanent pain and disability
  • Right Knee – torn meniscus (from overuse) that will require future menisectomy
  • Neck – C5-6 compression and nerve damage causing chronic and constant pain not relieved with medication and continuing trigger point and epidural steroid injections

The matter of pension benefits was the subject of much disagreement not only between the parties but also between the trial and appellate judges. Under CPLR 4545 , a trial judge may reduce a personal injury verdict if, after a hearing, the judge finds that any element of economic loss encompassed in an award will be replaced by a collateral source in whole or in part. To do so, though, the collateral source payment must represent reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.

A collateral source hearing was held in this case wherein it was established that as a consequence of her line-of-duty injury, plaintiff was deemed by the Police Department Pension Board to be disabled from her employment as a police officer and she was therefore receiving an accidental disability allowance (“ADR”) in the amount of $69,000 per year as of August 30, 2009 (equal to 75% of plaintiff’s final salary) and lifetime medical coverage.

Defendants contended that the ADR replaces both the earnings plaintiff would have received had she continued working as a police officer and the pensions she would have received upon retirement from the force and that therefore the ADR and health insurance benefits should offset the jury awards for loss of earnings, lost pension and future medical expenses. Plaintiff argued that the ADR is a substitute for an ordinary pension, not lost earnings.

The trial judge agreed with plaintiff and declined to offset any part of the award.

The appellate court, though, disagreed (in part) ruling that the future loss of pension benefits award should be offset by the total amount plaintiff was projected to receive under her disability pension, effectively reducing the $2,486,740 aspect of the verdict to zero.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $30,000,000 ($5,000,000 past, $25,000,000 future);
  • The attorney for the transit authority did not mention any figures in closing while simply suggesting that plaintiff’s brain injury claims were exaggerated and stating that it was up to the jurors to determine the significance of plaintiff’s knee injuries. In defendant’s appellate brief, though, it was conceded that “plaintiff’s brain injury obviously was a very serious injury” and she is “obviously entitled to a seven-figure award for her traumatic brain injury.”
  • Plaintiff underwent an electroencephalography (“EEG”) and computer axial tomography (“CAT”) scans that were negative for seizures and intercranial bleeding. An MRI showed subcordial white matter changes. There were no neuropsycholgical tests administered.



Appellate Court Reinstates Jury Verdict That was Reduced by Trial Judge in Elbow Injury Case

Posted in Elbow Injuries

On August 16, 2006, Nancy Cruz tripped and fell due to a defect in a rubber playground mat at a picnic in the Bronx. Ms. Cruz, then 49 years old, was attending a cookout with her five-year-old grandson when her foot became caught in a worn-out hole in the mat causing her to fall forward and strike her right (dominant) elbow on the ground.

In her ensuing lawsuit, the jury found that the playground owner and picnic sponsor – Bronx Lebanon Hospital Center – was negligent in failing to maintain the area in a reasonably safe condition and that its negligence caused Ms. Cruz’s injuries. Plaintiff was found to be free of any comparative negligence.

Bronx Lebanon Hospital Center

On September 7, 2012, the Bronx County jurors awarded plaintiff pain and suffering damages in the sum of $570,000 ($300,000 past – six years, $270,000 future –  27 years).

Following a post-trial motion by the defendant, the jury’s findings as to liability were upheld but the trial judge issued a decision on May 10, 2013 in which he agreed with the defense that the damages awards were excessive and he ordered a reduction to $200,000 ($140,000 past, $60,000 future).

In Cruz v. Bronx Lebanon Hospital Center (1st Dept. 2015), the liability verdict was affirmed and the jury’s $570,000 pain and suffering award was reinstated.

As set forth in the appellate court decision, plaintiff was taken via ambulance to a hospital where she was diagnosed with an avuslion or “chip fracture” and a dislocation of her right elbow. She was treated by closed reduction, her humerus bone was replaced into the ulna or socket of the elbow, her arm was casted and she was discharged to home.

Elbow Dislocation

Here are additional injury details:

  • multiple chip fractures still loose and floating around in plaintiff’s elbow inflicting pain that is permanent
  • four weeks in a cast, followed by four more weeks in a brace
  • physical therapy for two months 2-3 times a week
  • pain management treatment for almost two years including narcotic pain medication
  • loss of grip strength, range of motion and sensation resulting in inability to carry heavy shopping bags or her grandchildren and difficulty mopping and cleaning at home

bone fragment in elbow joint

Inside Information:

  • In reducing the future pain and suffering award to $60,000, the trial judge rejected the jury’s finding that plaintiff would endure pain and suffering for the entirety of her 27 year life expectancy. He noted that there was evidence plaintiff had a host of pre-existing significant medical problems  (including chronic obstructive pulmonary disease, diabetes and high blood pressure), she smoked cigarettes for decades and continued to do so and had a history of suicidal ideation and dependence upon cocaine and alcohol. He reduced her future period of pain and suffering to 13 years stating: “If the jurors believed that plaintiff had a reasonable possibility of surviving even an additional fifteen years, they must have been attending a different trial.”
  • Plaintiff’s settlement demand had been $150,000 against which the defendant made no offer. After the verdict (but before he reduced the award), the trial judge indicated that awarding future damages for a 27 year period troubled him but so did the fact that the defense made no settlement offer. He found that “unreasonable” especially because there could have been “a very reasonable settlement in this case and that possibility was foregone because no money whatsoever was offered.”
  • In closing arguments, plaintiff’s attorney asked the jury to award pain and suffering damages in the exact amounts they did – $300,000 for the past and $270,000 for the future.
  • There was no loss of earnings claim as plaintiff had been disabled for 30 years and was unemployed because of her medical problems mentioned above.

UPDATE: On March 24, 2016, the Court of Appeals affirmed the intermediate appellate court’s finding that legally sufficient evidence supported the jury’s verdict that defendant had constructive notice of the defect.

Serious Injury Threshold and Punitive Damages at Issue in Drunk Driving Case

Posted in Neck Injuries, Punitive Damages

On May 7, 2005 Sean Dernago was driving his employer’s box truck on the George Washington Bridge when, after weaving in and out of several lanes in fairly heavy traffic, he rear ended a pick-up truck and launched it into a minivan driven by Frank Chiara. His wife Venetia Chiara was a front seat passenger and their triplet eight year boys were all rear seat passengers. Mrs. Chiara and one of her sons, Nicholas, were injured.

Scene of the Accident

Dernago was employed by Connecticut Shellfish Company and had been making deliveries to restaurants that day.  Towards the end of his route, Dernago stopped at Hooters in Paramus where he drank about 10 beers. He then headed to his last stop in City Island but before he got there he caused the crash with the Chiara family.

Chiara was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months.

The Bar at Hooters in Paramus, NJ

The Bar at Hooters in Paramus, NJ

In the ensuing lawsuit, defense lawyers conceded that Dernago was intoxicated but suggested that the pick-up truck struck plaintiffs vehicle before any impact from the defendant. Dernago did not testify in court but in his deposition transcript he said he heard only one impact and the jurors made short shrift of the defense argument and returned a verdict of full liability against the defendant.

In the damages portion of the bifurcated trial the defendants argued that Mrs. Chiara’s claimed neck injury did not meet the serious injury threshold under Insurance Law Section 5102(d); however, on September 21, 2011, the Nassau County jurors disagreed and returned a verdict for pain and suffering in the sum of $160,000 ($90,000 past – six years, $70,000 future – 28 years). They also awarded punitive damages in the sum of $70,000.

In Chiara v. Dernago (2d Dept. 2015), the threshold determination and the damages awards have been affirmed.

As indicated in the court’s decision, Mrs. Chiara, a homemaker then 47 years old, sustained injuries to her cervical spine that caused disc herniations and left her with significantly decreased range of motion.

Here are the injury details:

  • herniated discs at C4-5 and C5-6 with radiculopathy
  • bulging discs at C3-4 and C6-7
  • physical therapy and chiropractic treatment (about 135 visits) continuing to the date of trial
  • trigger point injections
  • continuing need for pain medication
  • permanent cervical spine range of motion deficit of almost 50%


Although plaintiff did not complain of neck pain at the scene or at the emergency room later that night, she shortly thereafter developed significant spasms and neck pain that she testified continued to the date of trial and limited her abilities to cook, work at a computer, garden, concentrate and play with her children. She admitted, though, that “there’s nothing I cannot do at all.”

Plaintiff’s injuries and treatment were testified to by her neurologist James Liguori M.D.; whereas defendants offered the testimony of expert radiologist A. Robert Tantleff, M.D. who reviewed plaintiff’s MRI and said that there was no nerve root compression,  plaintiff’s condition was completely related to degenerative disc disease and she had not sustained an acute herniation.

The award of punitive damages was based upon plaintiff’s claim that not only was Dernago a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished. The defense argued that drunk driving alone will not as a matter of law support a punitive damage claim (that is correct) and that there was little or no evidence to meet the higher burden needed for punitive damages, especially in view of the fact that Mr. Dernago was pulled over by a police officer for failure to signal a lane change about 10-15 minutes before the crash,  was given a field sobriety test and let go without any tickets.

Inside Information:

  • The claim by plaintiff’s son Nicholas was settled during trial for the sum of $25,000. His injury was minor, essentially some neck spasms treated with physical therapy.
  • In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $630,000 ($350,000 past, $280,000 future). Defense counsel argued that plaintiff was entitled to no damage award at all because her injuries did not meet the statutory serious injury threshold.
  • Mrs. Chiara’s settlement demand had been $150,000 against an offer of $60,000.

Catastrophic Injury Awards Affirmed for Worker in Roadway Accident

Posted in Amputation Injuries, Loss of Consortium Damages

On October 24, 2008 Robert Loja was working for a landscaping firm in Sleepy Hollow. Just after parking his employer’s truck on Benedict Avenue and unloading his lawn mowing equipment from his truck’s trailer, Loja was struck by a car driven by a young woman on her way to work. His legs were crushed between the car and his trailer.

15 - Google Maps

The Scene of the Accident

When he woke up in a hospital two days later, the 35 year old Loja learned that his left leg had been amputated above the knee.

In the ensuing lawsuit,  the driver contended that she was not at fault because there was a blinding sun glare and the roadway  was improperly and unsafely blocked off by plaintiff and his employer.

sun glare

The Westchester jury found the driver only 10% at fault while charging plaintiff with 30% of the fault and the landscaping company with 60%.

On January 27, 2012, the jurors awarded pain and suffering damages in the sum of $5,500,000 ($2,500,000 past – three years, $3,000,000 future – 18 years).

Plaintiff was also awarded $1,000,000 for future loss of earnings (18 years) and his 25 year old wife was awarded $1,000,000 for her loss of consortium claim ($500,000 past – three years, $500,000 future – 18 years)

Appeals were pursued by both the defendant and the landscaping company (in the case as a third-party defendant because plaintiff was barred under the Workers Compensation Law from suing his employer). Defendant argued that the damages awards were excessive whereas the third-party defendant  argued only that the liability verdict was against the weight of the evidence and that evidentiary errors required a new trial.

In Loja v. Lavelle (2d Dept. 2015), the appellate court affirmed all of the damages awards but shifted the liability apportionment as follows: 50% to defendant, 10% to plaintiff and 40% to third-party defendant.

The court decision mentions that plaintiff’s legs were pinned by the car underneath the trailer and that one of his legs was amputated as a result. Here are additional injury details:

  • left leg mangled crush injury, essentially a traumatic amputation
  • surgical removal of six inches of the lower left femur, i.e., an above the knee complete amputation
  • additional surgeries (a) to wash out the stump, remove ischemic skin and insert a vacuum assisted closure dressing for wound healing, (b) to replace dressings and insert a permanent inferior vena cava filter in the abdomen to prevent blood clots and (c) to graft skin from plaintiff’s hip to his left leg stump
  • right leg – severe instability of knee joint with compartment syndrome requiring emergency  external fixation and fasciotomy
  • right ankle – tears of the anterior talofibular, calcaneofibular and other ligaments
  • back – herniated disc at L5-S1 with radiculopathy
  • post-traumatic stress disorder and major depression with guarded prognosis; needs psychotherapy and medication
  • hospitalization for one month at Westchester Medical Center and then at its related Taylor Institute for Rehabilitation for another month
  • outpatient rehabilitation for three months at three more hospitals
  • continuing phantom pain in left leg (requiring lifetime pain medication) , ill-fitting prosthesis (with several replacements needed over the years), use of cane to ambulate
  • unable to bend, lift, twist, rotate or do excessive standing or sitting
  • continuing need for electrical stimulation and brace on right ankle
  • needs total knee replacement within 5-10 years
  • unable to return to work

Inside Information:

  • By stipulation, the parties agreed that plaintiff’s damages included $98,000 for past loss of earnings and $178,318 for past medical expenses. These amounts were subject to a lien by the workers compensation carrier.
  • A settlement was discussed in open court during the trial. Defense counsel indicated that his client would pay $250,000 and that the workers compensation carrier would pay $750,000 and waive its lien of about $250,000. After a hearing in which the potential settlement was explained, Mr. Loja declined to settle.
  • Due to (a) the fact that the driver had very limited insurance coverage and (b) the intricacies of  CPLR Article 16 (regarding joint liability) and the Workers Compensation Law (which prohibits employees from suing directly their employers in work-related accidents), it appears Mr. Loja’s actual financial recovery in this lawsuit will be much less than what was offered.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $7,475,000.

Subway Platform Injury Award Affirmed

Posted in Ankle Injuries

On April 18, 2008 Pamela Blechman was on her way to a meeting for her employer, a charitable fund, when she boarded a crowded uptown subway train at the 14th Street-Union Square station in Manhattan. After she stepped from the platform into the subway car, Ms. Blechman was jostled backwards and fell into a foot-wide gap between the edge of the station platform and the door sill of the subway car.


She fell into the gap up to her armpits with one leg in the gap and the other still in the train. Before the train pulled away from the station, she was pulled out but she’d injured her ankle and an ambulance came and took her to a nearby hospital.

In her ensuing lawsuit, Ms. Blechman claimed that the transit authority was negligent and caused her injuries because the train stopped 10-15 feet past its usual spot, creating a dangerous gap that was two times larger than the normal six-inch gap.

The defendant asserted that it performs a governmental function and, accordingly, its decisions concerning acceptable gaps between subway cars and platforms should be entitled to qualified immunity. On March 19, 2013, a decision was issued striking the qualified immunity defense and ordering that the defendant was not permitted to raise it at trial.

On October 17, 2013, a Manhattan jury found that the transit authority was  liable for the accident and awarded the 40 year old Ms. Blechman pain and suffering damages in the sum of $350,000 (all past – 5 1/2 years).

In Blechman v. New York City Transit Authority (1st Dept. 2015), both the liability and damages verdicts have been affirmed. As set forth in the decision, plaintiff sustained a comminuted ankle fracture that required two surgeries.

Here are the injury details:

  • displaced, comminuted oblique fracture through the lateral malleolus
  • surgery #1 on 5/2/08: open reduction with internal fixation (“ORIF”) with a six-hole plate and six screws including an interfragmentary screw (right through the bone)
  • following the first surgery, plaintiff was casted, then used a walking boot, followed by physical therapy and then home exercises
  • surgery #2 on 1/26/09: removal of the implanted hardware and excision of an exostosis (a fragment of bone protruding internally)

malleolus fx

The defendant argued that the jury’s $350,000 pain and suffering award was excessive because:

  1.  plaintiff’s surgeries were done on an  outpatient basis,
  2. her “course and recovery were as smooth as possible” and
  3. four months after the accident she went on vacation to Bali where plaintiff hiked to the top of a volcano

Bali Volcano Hike

Plaintiff was awarded nothing at all for future pain and suffering apparently because the jurors determined she’d made an excellent recovery, returned to work without restrictions within four months, was both before and after the accident a very active and athletic woman and she did not testify as to any limitation in her daily activities except to the extent that she said she can “not really” run any more. Asked how her hiking differed from before the accident, she replied: “Yes, it was actually a good recovery, so I’m able to do a lot of what I did, but it’s not quite at the same level.”  Plaintiff did not challenge this aspect of the award.

Inside Information:

  • In summation, plaintiff’s counsel recommended that the jury award $300,000 for past pain and suffering and $200,000 for the future. Defense counsel recommended $30,000 ostensibly for past pain and suffering only.
  • Plaintiff’s settlement demand had been $425,000 against a $5,000 offer.

Back Injury Pain and Suffering Awards Affirmed

Posted in Back Injuries

On December 20, 2008 Anthony Waring was employed as a housekeeper at Sunrise Assisted Living in Yonkers.

Sunrise Assisted Living in Yonkers, NY

Sunrise Assisted Living in Yonkers, NY

It had snowed the night before and Mr. Waring’s first order of business that morning was to shovel snow off the outside walkways. To do that, he had to get a shovel from the newly constructed outdoor shed in the back of the property. After doing so, he slipped and fell on the shed’s downward sloping exterior ramp.

As a result of his fall, Mr. Waring, then 22 years old, sustained a back injury that prevented him from returning to his job and he sued the property owner claiming that he fell because the ramp was three times as steep as that permitted under the building code and the it lacked handrails as required by the code.

In the Bronx County lawsuit (venue was based upon Mr. Waring’s residence), the jury returned a verdict finding the defendant fully at fault and awarding plaintiff pain and suffering damages in the sum of $600,000 ($100,000 past – four years, $500,000 future – 31 years).

In Waring v. Sunrise Yonkers SL, LLC  (1st Dept. 2015), both the liability and  damages verdicts have been affirmed.

As set forth in the appellate court decision, plaintiff sustained two bulging cervical discs and three lumbar herniations with impingement, can perform only sedentary work and will require surgery and/or a spinal cord simulator and continuing pain management.

lumbar disc herniation with impingementpinge

Here are additional injury details:

  • herniated discs at L3-4, L4-5 and L5-S1 impinging upon nerve roots with nerve damage and radiculopathy at L4-5 confirmed by an EMG
  • three epidural steroid injections
  • three months of physical therapy
  • permanently disabled from engaging in heavy labor
  • unable to play with his two young sons
  • permanent, chronic back pain whether sitting, lying down or walking short distances
  • doctor’s orders to refrain from lifting anything heavier than 15 pounds, twisting, bending, kneeling and sitting or standing for more than 15 minutes at a time
  • future surgery required – laminectomy discectomy and spinal fusion

In addition to pain and suffering damages, the jury also awarded plaintiff:

  • lost wages in the sum of $480,000 ($80,000 past, $400,000 future) and
  • medical expenses in the sum of $750,000 ($250,000 past, $500,000 future).

After the verdict, the trial judge issued a decision reducing (a) the future lost wages award to $200,000 in view of plaintiff’s age and his conceded ability to engage in sedentary labor and (b) the future medical expense award to $65,000 ( the cost of the spinal cord stimulator).

Inside Information:

  • While the court decision mentions that bulging cervical discs were among plaintiff’s injuries, by the time of trial plaintiff’s neck pain had improved to the point that his attorney told the jury they “are not asking for any monies with regard to his neck.”
  • Plaintiff had been employed at defendant’s facility only three months or so before this incident and he’d fallen once before on the job when it had rained and the ramp was slippery. That time, he hurt his wrist but continued to work.
  • Defense counsel was repeatedly admonished by the trial judge for injecting hearsay statements into her questions and making legal arguments before the jury. At one point, the judge told the jury that her actions were improper and that she “should know better and has not been following the court’s instructions.”

Construction Site Trip and Fall Accident Caused Significant Hand Injury

Posted in Hand Injuries

On September 18, 2002 Thomas Pyle was a tile setter’s helper working on the construction of a 48 story residential apartment building in Manhattan that came to be known as 220 Riverside Drive.


Construction at at 220 Riverside Drive

Mr. Pyle, then 47 years old, tripped and fell onto his left hand due to construction debris on the floor. Bleeding profusely from his hand which had been cut by a sharp edge from marble debris, Pyle was driven to a local hospital by the site nurse.

Suit was brought against the owner of the site and the construction manager alleging violations of New York’s Labor Law. After a two week trial, the Manhattan jury returned a verdict on October 16, 2012 finding that the construction manager was liable for Pyle’s injuries under Labor Law Section 241 (6) because it violated the Industrial Code provision (Section 23-1.7[e][2]) that requires construction site floors to be kept free from debris and sharp projections; however, the jury also found that Pyle was comparatively negligent and liability was split 50-50 between the parties.

As to damages, the jury awarded $100,000 for pain and suffering for the five year period from the date of the accident to the date of Mr. Pyle’s death (from unrelated causes).

In Kutza v. Bovis Lend Lease LMB, Inc. (1st Dept. 2015), the liability verdict against the defendant was affirmed but the comparative negligence finding against plaintiff was reversed. Additionally, the pain and suffering award was found to be inadequate and it was increased to $400,000.

The appellate court also found inadequate the jury’s failure to award any damages at all for plaintiff’s wife’s loss of consortium claim and determined that $50,000 was the least that should have been awarded.

The decision mentions that that Pyle sustained a hand injury with nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety and significant limitation of the use of his hand.


Here are additional injury details:

  • deep lacerations of left (dominant hand) median nerve, flexor pollicis longus, flexor carpi radialis, palmaris longus and radial artery
  • surgery to repair the lacerations with over 30 sutures, irrigation and debridement and a carpal tunnel release
  • six months of three times a week outpatient occupational and physical therapy
  • development of deformed, claw-like hand, with no ability to flex or extend his fingers, continuing pain (requiring narcotic medication), numbness, loss of temperature sensation coldness and discoloration
  • permanent, chronic and severe radial and ulnar neuropathy
  • never able to return to work or to help his wife with cleaning, laundry and other household chores or to camp or help his 13 year old son with Boy Scouts activities
  • depression with psychiatric treatment and medication

Inside Information:

  • Thomas Pyle’s death on November 16, 2007 was due to a heart attack (he had a history of hypertension) and he was never deposed in the lawsuit. His wife, Marianne Kutza, was appointed administrator of his estate, became the named plaintiff in the lawsuit and testified on his behalf.
  • In 2011, the defendants sought to have the case dismissed in part because there were no actual eyewitnesses who testified they saw plaintiff’s fall. The claim under Labor Law 240(1) (as to elevation-related hazards) was dismissed but the case was allowed to proceed to trial on the other Labor Law claims.
  • Mr. Pyle was earning about $50,000 a year before the accident and the jury awarded damages for lost earnings in the sum of $200,000.
  • In his closing argument, while maintaining that plaintiff was responsible for the accident, defense counsel addressed the issue of damages and said that if the jurors determined defendants were liable then “a reasonable number for pain and suffering over that time period [five years] is anywhere from $100,000 to $250,000.”
  • In discussions with jurors after the verdict was rendered, it appeared that three female jurors did not like Ms. Kutza and that the inadequate award was driven, at least in part, by animosity.

Pain and Suffering Damages Determined at Inquest Affirmed for Woman in Trip and Fall Case

Posted in Brain Injuries

On December 12, 2007, Lucille Martorella tripped and fell on a broken sidewalk in front of the property at 150-20 Centerville Street in Ozone Park. She picked herself up and walked around the block to her home where she rested, dazed and in pain.

Within a couple of days the then 64 year old woman started losing the feel and grip of one of her hands and then one of her legs “started dragging as bit.”

Claiming significant and permanent injuries, Ms. Martorella sued the owners of the property. The defendants never properly answered the complaint and plaintiff’s motion for a default judgment of liability was granted on September 8, 2010.


Thereafter, an inquest was held following which, on May 13, 2011, the judge in Queens County issued a decision awarding pain and suffering damages in the sum of $185,000 ($165,000 past – 3 1/2   years, $20,000 future – 17 years).

In Martorella v. 150 Centerville Holding, LLC (2d Dept. 2015) the $185,000 award was affirmed.

Neither the inquest decision nor the appellate court decision gives any indication of the nature of the injuries. Here are the injury details:

  • emergency room treatment at Phelps Memorial Hospital Center on 12/24/07 (12 days after the fall) for progressively worsening left leg symptoms impairing her ability to walk and left arm trembling – diagnosed with an intracranial hemorrhage (acute right thalmic bleeding) and a stroke requiring immediate transfer to a tertiary care unit at another hospital
  • intracranial-bleeds-copy
  • transferred by ambulance and admitted to Westchester Medical Center on 12/24/07 through 12/30/07 where she was treated with daily transfusions of platelets and IV immunoglobulin therapy
  • inpatient rehabilitation treatment for one month at Kendal on Hudson, a continuing care retirement community located on the Phelps campus that also offers skilled nursing care
  • about three months of hospital outpatient rehabilitation treatment for left side hemiparesis
  • one month in a wheelchair and another using a cane
  • as of the inquest date, continuing left side weakness leaving plaintiff unable to walk stairs without great difficulty and unable to use both hands for any activities such as cooking, dressing herself and shopping

Inside Information:

  • The only testimony at the inquest was from the plaintiff (who was subjected to cross-examination by defense counsel). In addition, she submitted as evidence medical records from the hospitals and doctors.
  • Plaintiff had ceased any treatment for her injuries as of the date of the inquest.
  • Plaintiff had a pre-existing history of idiopathic thrombocytopenia purpura (ITP), a disease in which existing platelets are destroyed and not enough are produced. Defense counsel argued on appeal, unsuccessfully, that (a) there was no evidence that plaintiff’s stroke was the result of her fall 12 days earlier and (b) there was nothing to show that plaintiff’s thalmic bleed and stroke were anything but the continuation and progression of her longstanding ITP.