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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Construction Site Injury Awards Sharply Reduced

Posted in Back Injuries

On October 11, 2008 Gilbert Hernandez was working at a construction site in the Bronx inspecting a gas line being installed in a six-foot deep trench. As he was  climbing out, Mr. Hernandez fell down into the trench landing on his back.

Trench

In his ensuing lawsuit against Danella Construction of New York, Inc. –  the pipe installation subcontractor –  the jury determined that the defendant was liable under Labor Law Section 240 because it failed to provide the proper equipment (i.e., a ladder) so that plaintiff, then 44 years old, could have safely exited the elevation-related hazard.

Hernandez was awarded substantial damages from the Bronx jury on June 2, 2014 but the amount was slashed in a post-trial decision on September 22, 2015 and in Hernandez v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2016) the trial judge’s reductions have been affirmed.

The appellate court decision, though, provides no information at all as to the plaintiff’s injuries and fails to disclose any of the the amounts awarded by the jury, reduced by the trial judge and affirmed by the appellate court.

Here are the injury details:

  • herniated discs at L3-4, L4-5 and L5-S1
  • three epidural and facet block injections, extensive physical therapy
  • laminectomy and fusion at L4-5 and L5-S1 with bone graft, six screws, plate and two rods requiring one week hospitalization

lumbar fusion3

  • failed back surgery syndrome and chronic pain requiring three spine stimulator implant surgeries

spinal cord implant surgery

  • left ankle sprain and wound with infection requiring one week hospitalization for antibiotic therapy; chronic pain and limited range of motion
  • unable to return to construction work, take long walks or ride a bicycle

The jury awarded plaintiff pain and suffering damages in the sum of $2,500,000 ($300,000 past – 5 1/2 years, $2,200,000 future – 31 years); however, the trial judge reduced the jury’s pain and suffering award to $1,400,000 ($200,000 past, $1,200,000 future) and that’s the amount affirmed by the appellate court.

Inside Information:

  • Based largely upon a life care plan prepared by one of plaintiff’s experts that delineated likely future medical needs and costs (such as about $1,500,000 for additional spinal cord stimulation procedures and replacements), the jury also awarded past medical expenses in the sum of $300,000 and future medical expenses in the sum of $2,700,000. The trial judge found (and the appellate court agreed) that most of the future medical expenses award was speculative and it was reduced to $491,431.
  • Plaintiff’s pre-trial settlement demand was $750,000 against an offer of $50,000.
  • Plaintiff was helped out of the trench, in pain, but declined medical attention at the scene, returned to work two days later and worked for another six days before he first sought any medical treatment related to his injuries. Thereafter, he never returned to work.
  • Consolidated Edison Company was the first named defendant in the lawsuit caption but the claims against it were dismissed during trial and the case was continued and tried against only Danella Construction.

 

Modest Pain and Suffering Award Affirmed in Car Crash Case

Posted in Back Injuries

On April 30, 2010 Patricia Telesco was driving her 2003 Hummer motor vehicle on Route 55 in Lagrangeville when she was struck head on in her lane by a 1998 Oldsmobile driven across the double yellow line by Kyle Blackman on his way to classes at Arlington High School. Ms. Telesco was taken from the scene by ambulance to the local hospital complaining of back and leg pain.

Route 55 in Lagrangeville

Route 55 in Lagrangeville

Ms. Telesco, then 41 years old, sued Mr. Blackman (and his father, as his vehicle’s owner) and in October 2013 a Dutchess County jury determined that the defendant driver was fully liable for the accident.

A different jury then heard testimony in a damages only trial and on December 13, 2013 plaintiff was awarded pain and suffering damages in the sum of $60,000 (all past – three years, eight months).

Plaintiff appealed claiming that the damages award was inadequate. In Telesco v. Blackman (2d Dept. 2016), the appellate court declined to disturb the amount of damages and affirmed the jury’s award.

As set forth in the court’s decision, Ms. Telesco sustained a thoracic disc herniation for which she underwent surgery. Here are the injury details:

  • disc herniation at T12-L1 with associated annular tear and indentation of the spinal cord
  • surgery on 9/23/10 to remove disc material and stabilize the joint – a T12-L1 laminectomy and microdiscectomy with interbody fusion with pedicle screws and two rods
  • three day hospital admission for the surgery with emergency re-admission shortly thereafter for four more days due to pain
  • confined to home for four months after second hospitalization
  • two scars at surgical site
  • unable for one year to resume customary homemaking activities or drive a car
  • continuing inability to resume kayaking, snowmobiling or ride a horse

spine modelT12 fusion

The issue on appeal related to New York’s CPLR 5102 (d) – the so called serious injury threshold statute.

The jurors were presented with verdict sheet questions requiring them to state whether plaintiff’s injuries met either the statutory significant limitation of use of a body function or system category or the 90/180-day category (a non-permanent injury that prevents one from performing substantially all of the material acts that constitute one’s usual and customary daily activities for not less than 90 days in the 180 days immediately following the accident). The jurors ruled that plaintiff had not sustained a significant limitation of use but had met the 90/180-day standard.

Plaintiff’s normal pre-accident routine involved activities related to the 16 acre family farm she maintained with her husband. Each day, she’d pick up food from a nearby store to feed the farm animals (calves, sheep and chickens), she did secretarial work for her husband, cared for her son and did housework such as vacuuming and washing clothes. The defense argued that within one year, plaintiff resumed all of these activities, she sought no medical care for this matter for more than two years before trial and her only physical complaints as of trial were that on cold and rainy days she has “a little sharpness” in her back and has to be careful walking on uneven ground.

Neurosurgeons for both parties testified by way of videotape.

  • Plaintiff’s surgeon testified that within four months of the accident, plaintiff did not have any documented significant limitations and within a year her radiating pain had resolved and her prognosis was excellent. He made no mention of any objective findings as to limitations or restrictions and even stated that the fusion he performed “may or may not be” a significant limitation of that portion of the spine.
  • The defense expert opined that Ms. Telesco had “no significant limitation” as a result of her surgery: “having a total of 17 levels between the thoracic spine and lumbar spine, fusing one should not result in any significant loss of range of motion in general ….”

Inside Information:

  • The defendant claimed that a yellow jacket bee had entered his car 10 seconds before the crash and that he’d tried to swat it away when he lost control of his vehicle. Plaintiff’s motion for summary judgment as to liability was denied in 2012 when the trial judge found that it was for a jury to determine whether the distraction of the bee provides a non-negligent explanation for the accident.
  • Plaintiff’s husband asserted a loss of services claim but was awarded nothing.

Medical Malpractice Pain and Suffering Verdict Reduced on Appeal

Posted in Medical Malpractice

On a summer day in 2004, Robert Wyble was pushing a lawnmower when his legs suddenly “gave out” and he fell to the ground. It happened again about a month later and then frequently in 2005.

BERLIN, GERMANY - JUNE 15: A worker mows strips of grass in front of the Chancellery with a lawn mower on June 15, 2011 in Berlin, Germany. Germany is currently enjoying summer weather replete with thunderstorms alternating with blue skies. (Photo by Sean Gallup/Getty Images)

Mr. Wyble, then a 42 year old self-employed landscaper, consulted a neurologist who diagnosed his condition as myasthenia gravis – a disorder caused by an interruption of the signals between the nerves and muscles, resulting in weakness of certain muscles.

In April 2009, after almost five years of treatment, it was discovered by another doctor that Mr. Wyble had been misdiagnosed and what he really had was cataplexy – a condition in which an individual falls for no apparent reason and then gets right back up again.

In Mr. Wyble’s ensuing lawsuit medical malpractice lawsuit, a Manhattan jury determined in March 2014 that the doctor who diagnosed myasthenia gravis had departed from accepted standards of medical care and that the departure was a substantial factor in causing significant injuries.

The jury then returned a verdict awarding pain and suffering damages in the sum of $3,500,000 ($2,000,000 past – nine years, $1,500,000 future – 28 years).

In Wyble v. Lange (1st Dept. 2016), the appellate court affirmed the liability finding but agreed with the defense that the damages award was excessive and ordered a reduction of the pain and suffering award to $1,100,000 ($900,000 past, $200,000 future).

Here are the injury details, involving years of rigorous treatment that addressed a condition Mr. Wyble did not have, none of which details were mentioned in the court’s decision:

  • thymectomy –   a major surgery with a 17 day hospitalization in which plaintiff’s thymus was removed when his chest was “split open” and then sewn back with wires, leaving plaintiff with a destabilized chest vulnerable to minor trauma, structural irritation and loss of strength in his upper body
  • 74 unnecessary plasmapheresis treatments (an invasive procedure in which blood was withdrawn, plasma was separated out and replaced with albumin and then the blood was returned) – every two days out of 14 for three years
  • scar tissue and pain at plasmapheresis port sites and scars on his chest and shoulder
  • infection in spine stemming from plasmapheresis, with 12 day hospitalization
  • immune system diminished leaving plaintiff more vulnerable to infections  for the rest of his life
  • prescription and administration of multiple, toxic, immunosuppressant drugs, all “directed at basically clobbering the immune system,” which, especially Prednisone, can cause cataracts, hypertension, diabetes and thinning of bones
  • unable to play with his children or resume playing softball
  • development of prolonged emotionally crippling depression that ended plaintiff’s 23 year marriage

thymus

Inside Information:

  • The jury also awarded loss of services and consortium damages to Mr. Wyble’s wife in the sum of $1,000,000 (past only – six and one-half years). The trial judge ordered a reduction to $100,000 (an amount accepted by Mrs. Wyble). On appeal, Mrs. Wyble sought an increase to $250,000. The appellate court ruled that her request was unpreserved but that in any event the reduced amount was proper.
  • Plaintiff’s wife was at his side during this ordeal for years and especially during the invasive and exhausting plasmapheresis treatments in which, under sterile conditions, she had to flush out the port line each time, clean it, and inject heparin in order to prevent clots. Mrs. Wyble left her husband and moved out of their home in December 2011 (thus terminating her damages claim as of the date she moved out): “I couldn’t do it anymore. … I wanted a husband and a family …. He was … there but not emotionally.”
  • The defense did not introduce any adverse medical testimony to challenge plaintiff’s evidence and medical expert concerning the nature and extent of his injuries.
  • The jurors awarded $1,100,000 more than plaintiff’s attorney, Richard A. Gurfein, suggested in his summation for future pain and suffering ($500,000 more) and loss of services and consortium ($600,000 more).

Huge Pain and Suffering Award Slashed in Infant Brain Damage Case

Posted in Brain Injuries, Medical Malpractice

Shannon Reilly was born on November 1, 2002 at St. Charles Hospital in Port Jefferson. Doctors quickly noticed Shannon was suffering seizures and she was later determined to be suffering from cerebral palsy.

St Charles Hosp.

In the ensuing lawsuit against the hospital and the obstetrician, Shannon’s parents claimed that her delivery was improperly managed allowing a hypoxic event to occur causing brain damage and cerebral palsy.

The case was tried three times in Suffolk County.

  1. In 2009, the jury rendered a defense verdict. On appeal, the dismissal as to the physician was affirmed but the case was reinstated as to the hospital.
  2. In a 2012 retrial, the jury was hung so the case went to trial again.
  3. In a 2013 retrial, the jury reached a plaintiff’s verdict and awarded $130,000,000 in damages:
  • $92,500,000 for pain and suffering ($10,000,000 past – 10 years, $82,500,000 future – 55 years)
  • $5,500,000 loss of earnings capacity (29 years)
  • $32,000,000 (approx.) for future medical expenses (including $15,600,000 for a living center at age 44, $5,800,000 for home health aides, $5,600,000 for physical, occupational and speech therapies and $2,300,000 for medications)

On a post-trial motion, the judge reduced the awards for future medical expenses by about $3,000,000 and loss of earnings by $1,000,000. He also reduced the pain and suffering award by $85,600,000 to $6,900,000 (past to $400,000 and future to $6,500,000).

On appeal, the hotly contested liability finding has been affirmed in Reilly v. St. Charles Hospital (2d Dept. 2016), the awards for economic damages have been modified (resulting in an allowance of about the same $32,000,000 the jury awarded), the loss of earnings award has been reinstated and the pain and suffering award has been further modified downward and now stands at $4,250,000 ($750,000 past, $3,500,000 future).

In the latest decision, the appellate court referred to four previous appellate court decisions but with no explanation as to their significance. All were medical malpractice cases in which newborns sustained brain damage. The pain and suffering awards for the four plaintiffs were reduced from between $5,000,000 and $20,000,000 to between $2,250,000 and $4,250,000.

The citation to these cases, though unexplained, is important. It appears to relate to the differing positions of the parties in Reilly as to the application of the CPLR 5501 “deviates from what would be reasonable compensation” standard for the review of verdict amounts claimed to be excessive or inadequate.

Generally, to determine whether an award deviates materially from what would be reasonable compensation, the courts look to awards approved in similar cases, especially recent awards sustained by the appellate courts. To be “comparable,” the cases cited must involve injuries that are sufficiently similar to the nature, extent, circumstances and duration of the injuries sustained by the injured plaintiff.

Defendant argued on appeal in Reilly that CPLR 5501(c) requires the court to compare the pain and suffering awards in that case to approved such awards only in other medical malpractice infant brain damage cases, not to cases, as urged by plaintiff, that involve other catastrophic injuries with non-medical malpractice defendants. Applying that narrow construction, defendant argued, meant that the appellate court should compare the pain and suffering awards in Reilly only to other brain damage infant medical malpractice cases and that therefore the $4,250,000 sustained in 2007 for an infant diagnosed with cerebral palsy in Flaherty v. Fromberg should set the maximum limit for pain and suffering in Reilly as that was the highest sustained pain and suffering award in a brain damage infant medical malpractice case at the time Reilly was briefed.

Plaintiff argued that the pain and suffering award in Reilly as reduced by the trial judge from $92,500,000 to $6,900,000 should be increased to an amount commensurate with sustained awards for other persons (not limited to infants in newborn medical malpractice cases) who sustained catastrophic injuries (not limited to brain damage) such as the $16,000,000 sustained for pain and suffering in Peat v. Fordham Hill Owners Corp., discussed by us here, for a 37 year old man applying sealer to a floor in an unfinished apartment whose body was engulfed in flames when vapors from the sealing lacquer ignited and caused severe burns over much of his body.

Curiously, the decision in Reilly does not even mention the same court’s decision in Sence v. Atoynatan, issued seven weeks earlier, in which $9,015,000 was allowed for pain and suffering damages in a medical malpractice newborn brain damage case. We discussed the decision in Sence here.

Shannon Reilly suffers from hypoxic-ischemic encephalopathy, and will for the rest of her life. Here are some of the injury details:

  • cannot walk independently
  • is unable to control her tongue and mouth
  • has facial hypotonia, causing a drooling effect
  • will never be able to speak
  • will always be dependent upon others for all aspects of daily living
  • is incontinent
  • will require residence in a skilled nursing facility when her mother is gone
  • is well aware of everything going on and has emotional overlay that will continue to get worse
  • sleeps in a special needs bed
  • attends special needs school in a wheelchair

Inside Information:

  • The law firms in Reilly were Kramer Diloff, Livingston & Moore for plaintiff and Mauro Lilling Naparty LLP for the defendant. These are both very experienced, well-known and highly respected firms.
  • In 2009, before the defense verdict was rendered in the first trial, plaintiff’s settlement demand was $35,000,000 against an offer of $8,000,000. In 2013, before the $130,000,000 verdict, plaintiff’s settlement demand was $16,000,000 against which there was no offer from the defendant.
  • In the 2013 trial, the jury initially returned a verdict of $10,000,000 for past pain and suffering and $1,500,000 for future pain and suffering over 55 years. Plaintiff’s counsel then sought a sidebar arguing that it appeared the jury only awarded annual amounts rather than total dollar amounts. The judge then reinstructed the jury as to how they were to return their verdict on future damages awards and then they returned a revised verdict on the future damages awards, awarding $82,500,000 for future pain and suffering over 55 years.
  • Under Public Health Law Article 29-D, the New York Medical Indemnity Fund (the MIF) was established in 2011 to provide funds for future health care costs associated with birth-related neurological injuries caused by medical malpractice in order to reduce premiums for medical malpractice insurance coverage. Where, as here, plaintiff qualifies for the MIF, future medical expenses are paid out of the MIF rather than by the defendant. This reduced the defendant’s payout in this case by about $15,000,000.

 

Jury’s Pain and Suffering Award in Scar Case Substantially Reduced

Posted in Scars

On November 6, 2002 Miguel Erosa rushed to his local hospital in Queens complaining of unbearable pain in his stomach. It turns out he was suffering from appendicitis and he was admitted to the hospital where an emergency laparoscopic appendectomy was performed the next morning.

appendicitis2

Mr. Erosa was discharged from the hospital three days later, received routine follow-up medical care twice and returned to work as a mailman three weeks after his surgery. Unfortunately, Mr. Erosa’s abdominal pain remained present and even got worse, so bad that on February 9, 2003 he underwent a second abdominal surgery.

It turns out that the first surgery had been negligently performed in that the surgeon failed to completely remove the appendix causing an infection (stump appendicitis) and the need for the additional surgery. In his medical malpractice lawsuit against the surgeon, Mr. Erosa was awarded pain and suffering damages in the sum of $1,200,000 ($950,000 past – 10 1/2 years, $250,000 future – 26 years).

The trial judge agreed with the defense that the award was excessive and ordered a reduction to $275,000 ($250,000 past – $25,000 future), an amount affirmed on appeal in Erosa v. Coomaraswamy (1st Dept. 2015).

As set forth in the appellate court decision, defendant’s negligence left plaintiff with a large abdominal scar. Here is a trial exhibit from the case illustrating the scar:

Scar Photo (3)

The plaintiff, then 41 years old, exhibited his scar to the jury and in summation his attorney characterized it as “horrific” but the trial judge, in his post-trial decision, stated that the scar, “while far from pleasant looking or desirable, falls significantly short of … horrific.” The appellate judges apparently agreed.

In addition to the scar, plaintiff’s injuries included:

  • the need to undergo a second, more complicated, surgery (an open abdominal exploratory surgery) that would not have been needed but for the malpractice,
  • a six day hospital admission for abdominal pain between the dates of the two surgeries and a 10 day admission for the second surgery,
  • unable to return to work (as a letter carrier for the U.S. Postal Service) for almost three months,
  • development of incisional hernia and painful internal scars following the second surgery, and
  • several months of post-operative wound care.

Plaintiff testified that he was embarrassed by how he looked, refrained from going to the beach anymore, had been an avid athlete and could not return to playing handball and had digestive difficulties. The defense, though, noted that in the 10 years after the second surgery up to the date of trial, plaintiff had not gone to see any physician regarding his complaints.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $1,550,000.
  • Plaintiff’s wife was awarded loss of services damages (also referred to as loss of consortium) in the sum of $125,000 ($100,000 past – 10 1/2 years, $25,000 future – 26 years) but that sum has been reduced to $50,000 ($30,000 past – $20,000 future). Plaintiff’s testimony in this regard was scant (e.g., intimate relations with his wife had “gone low”) and conclusory and the trial judge stated that “[n]either plaintiff’s testimony nor his wife’s was particularly convincing as to the supposed deleterious effect on their lives together.”
  • Before trial, plaintiff’s counsel made it clear to the judge that he would accept less than $150,000 to settle but defendants’ maximum settlement offer was $30,000.

Appellate Court Issues Decisions in Three Mesothelioma Cases

Posted in Mesothelioma

Just two months ago, here, we reviewed recent appellate court decisions dealing with pain and suffering damages in mesothelioma cases. The same appellate court has issued  decisions in three more cases involving similar issues and damages. In all of the cases, hard-working men suffered horribly difficult final years before succumbing to a premature death due to the ravages of mesothelioma. In each case, the jury’s award for pain and suffering was drastically slashed by the courts.

 

Selwyn Hackshaw  was a retiree in his early 70’s in late 2012 when he learned he was suffering from mesothelioma. For many years he’d been an electrician and a pipe fitter, working at plants installing and repairing gaskets and valves  manufactured by Crane Company containing asbestos.

Hackshaw sued Crane claiming that his mesothelioma was caused by his inhalation of asbestos in gaskets, insulation and valves that he’d handled over the years. During the tendency of his lawsuit but before trial, Mr. Hackshaw died from the disease on August 3, 2013.

On June 16, 2014 a Manhattan jury returned a verdict finding that Crane had failed to provide adequate warnings about the hazards of exposure to asbestos regarding its products and that its negligence caused Mr. Hackshaw’s mesothelioma. The jury then awarded pain and suffering damages in the sum of $10,000,000 (past – 12 months).

On January 7, 2015 the trial judge reduced the damages to $6,000,000 and in Hackshaw v. ABB, Inc. (1st Dept. 2016), the appellate court further reduced the damages to $3,000,000.

 

Ivan Sweberg was also a retiree when he learned in mid-2012, at the age of 70, that he too was suffering from mesothelioma. Mr. Sweberg had been an electrician involved in the construction of buildings from 1956-1972 when he worked with others who were installing and removing asbestos manufactured by Crane.

In Mr. Sweberg’s lawsuit against Crane (consolidated for trial with Mr. Hackshaw’s lawsuit), the jury found Crane liable and awarded pain and suffering damages in the sum of $15,000,000 ($5,000,000 past – two years, $10,000,000 future – 1.5 years).

The trial judge reduced the damages to $10,000,000 ($5,000,000 past, $5,000,000 future) and in Sweberg v. ABB, Inc.  (1st Dept. 2016), the appellate court further reduced the damages to $9,500,000 ($5,000,000 past, $4,500,000 future).

 

Ivo Peraica was 63 years old in August 2011 when he learned that he was suffering from mesothelioma. For many years, Mr. Sweberg serviced boilers manufactured by Crane that contained asbestos and his inhalation of fibers of asbestos caused mesothelioma.

Mr. Peraica sued Crane but died from mesothelioma before trial, on December 28, 2012, at the age of 64. On March 1, 2013, a Manhattan jury found Crane liable and awarded pain and suffering damages in the sum of $35,000,000 (past – 17 months).

The trial judge reduced the damages to $18,000,000 and in Peraica v. A.O. Smith Water Products Co. (1st Dept. 2016), the appellate court further reduced the damages to $4,250,000.

 

Inside Information:

  • In each of the three cases, there were several defendants other than Crane and the jurors were instructed to apportion liability among them all (some defendants no longer existed, others had settled, etc.). Here are the verdict sheets in the Hackshaw and Sweberg cases.
  • The post-trial decision in Hackshaw and Sweberg is here and in Peraica, here.
  • The juries determined that Crane acted with reckless disregard for the safety of others, thereby negating the liability limitations of CPLR Section 1601 and restoring Crane’s joint and several liability. Pursuant to General Obligations Law (“GOL”) Section 15-108, though, plaintiffs’ verdicts in these cases, as reduced by the post-trial decisions (but before the additional appellate court reductions), were further reduced, in each case, by the greater of the aggregate pre-verdict settlements with other defendants or their aggregate percentages of fault.  In Hackshaw, therefore, plaintiff’s judgment (before interest) was $2,909,646 and in Sweberg it was for $4,997,200.
  • The appellate court decision in Peraica  is erroneous as to damages in that it refers to the jury award as $9,900,800 when in fact it was $35,000,000 (thereafter reduced by the trial judge, as mentioned above, to $18,000,000). The judgment against Crane amounted to $9,900,800 (before interest) but that was based first upon the $18,000,000 award from the trial judge and then the reduction of that sum pursuant to the GOL.
  • Along with plaintiff’s notice to the appellate court regarding its significant calculation error in Peraica, we expect that plaintiff in Sweberg will accept the relatively small reduction and propose an amended judgment. In both Hackshaw and Peraica, though, we expect plaintiffs will mount a constitutional challenge to the continuing practice of New York’s intermediate appellate courts of reducing jury awards for pain and suffering in mesothelioma cases by millions of dollars, even tens of millions.
  • Ivan Sweberg died from his mesothelioma in July 2014.

Appeals Court Upholds Verdict in Unwitnessed Fatal Pedestrian Knockdown Accident

Posted in Wrongful Death

On October 29, 2006, a woman was found dead on the road four feet from the curb of a bus stop on the Henry Hudson Parkway service road at West 236th Street in the Bronx. There were tire marks across her back and she’d sustained crush induced fractures of her arms, face, pelvis, shoulder and skull indicating that she was rolled over by a vehicle over her pelvis and then her head.

Several hours later police investigators discovered blood and tissue underneath a bus that had stopped at the site at about the time of the incident. It was determined that the bus had struck the decedent, 51 year old Bronx resident and part-time home health aide Rachel Levy (although the bus driver was unaware he’d struck anyone and there were no eyewitnesses).

In the ensuing lawsuit by Ms. Levy’s survivors against the transit authority and its bus driver, a verdict was rendered finding the driver fully at fault and awarding $950,000 in damages as follows:

  1. $300,000 to the decedent’s estate for pre-death conscious pain and suffering,
  2. $100,000 to the decedent’s daughter, Miriam Oates, for her loss of nurture, care and guidance (future – five years) and
  3. $550,000 to the decedent’s mother, Hadassah Levy, for her loss of custodial services ($150,000 past – 6 1/2 years, $400,000 future – 10 years).

In Oates v. New York City Transit Authority (1st Dept. 2016), both the liability and damages awards were affirmed.

Here are the injury and damages details:

  • Pain and Suffering:  Plaintiff’s expert forensic pathologist opined that Ms. Levy died due to multiple blunt force crush injuries of her head, chest, pelvis and upper extremities and that she suffered two to five seconds of conscious pain and suffering from the time she was struck by the bus to the time she lost consciousness and succumbed to her injuries. He broke the time period down to the pre-impact phase (the few seconds before impact when Ms. Levy recognized she would be hit, the impact phase (when the bus hit her, propelled her, knocked her down and began to run over her) and the post-impact phase (once the bus finished rolling over Ms. Levy when her entire body experienced total shock before no longer responding to her environment). The defendants’ expert opined that Ms. Levy died instantly, without pain or suffering and that it was impossible to say if or how long Ms. Levy was conscious at the time of or after impact.
  • Loss of Nurture, Care and Guidance: Ms. Oates, 40 years old at trial, left her mother’s home after college when she married and moved to North Carolina. Se continued to rely upon her mother for nurture, care, guidance and advice (especially regarding her own young daughter) via frequent phone calls and visits to New York several times a year.
  • Loss of Custodial Services: Hadassah Levy, 77 years old at trial, lived with her daughter (the decedent), was disabled, suffered from several health conditions (e.g., severe rheumatoid arthritis, back issues, eye disease and sleep apnea) and she required daily household and medical assistance. The decedent provided her mother with daily custodial services including grocery shopping, cleaning, laundry, cooking, driving and keeping track of medications.

Inside Information:

  • The five judge appellate panel split 3-2 in favor of affirming the verdict and the defendants have exercised their right (by virtue of the split decision) to seek review from the state’s highest court, the Court of Appeals. We will report on any significant further developments as they occur.
  • Decedent’s family refused an autopsy on religious grounds.
  • New York’s wrongful death laws allow for an award of pecuniary damages (e.g., loss of custodial services) to a decedent’s distributees. Estates, Powers and Trusts Law Section 4-1.1 provides that where a person is survived by a child and a parent, the child is the sole distributee. Therefore, decedent’s daughter was her only distributee but defense counsel never objected to the prosecution of the claim for decedent’s mother until after the trial so the appellate court deemed the objection waived and allowed the award to stand.

UPDATE:

On November 17, 2016, the Court of Appeals affirmed the intermediate appellate court’s order discussed above. New York’s high court stated: ” … legally sufficient evidence supported the jury’s findings of negligence and entitlement to damages for decedent’s conscious pain and suffering.”

 

 

Brain Damage Pain and Suffering Award Slashed in Case of Patient who Fell at Assisted Living Facility

Posted in Brain Injuries

On July 8, 2006 Frances Feinstein, a 75 year old patient at Norwegian Christian Home & Health Center (“Norwegian” – an assisted living facility in Brooklyn), was found on the floor with a knot on her forehead, evidently the result of a fall. The head trauma caused a brain injury requiring transfer to a hospital and then to a nursing home where Ms. Feinstein died 14 months later on September 14, 2007 without ever returning to Norwegian.

Norwegian Christian Home

Norwegian Christian Home & Health Center

Ms. Feinstein’s children commenced a lawsuit against Norwegian and decedent’s personal physician. They claimed that the defendants were negligent in failing to properly assess their mother and and provide her with the appropriate level of care for her pre-existing medical conditions (dementia and limited vision) and that these failures resulted in her fall. There was no claim that defendants caused Ms. Feinstein’s death (which was from unrelated causes); their claim was that had she been assessed as needing a higher level of care and closer monitoring fall precautions would have prevented her fall and her resulting traumatic brain injuries.

The Kings County jury returned a verdict in plaintiffs’ favor apportioning liability 70% to the physician and 30% to the facility and awarding pain and suffering and loss of enjoyment of life damages in the sum of $1,500,000 (past – 14 months).

In Feinstein v. Norwegian Christian Home & Health Center, Inc. (2d Dept. 2016), the liability verdict was affirmed; however, the court ordered a reduction of the damages award to $550,000.

Here are the injury details:

  • facial hematoma (described as “racoon eyes”)
  • chronic subdural hematoma
  • tonic clonic seizures
  • bedridden (in fetal position due to contractures)
  • pain
  • unable to speak
  • mental deterioration, hallucinations, anguish and emotional distress

Racoon eyes2

Plaintiffs’ expert neurologist testified that the head injury caused all of the foregoing and that pain medication (Tylenol) was given thereafter because Ms. Feinstein appeared to be in pain and discomfort. He also testified that on occasions at the nursing home she was aware of her environment and went from “quite intact at points to quite out of touch at other points.”

Decedent’s children visited often and both testified at trial. Her daughter testified that when massaging her mother’s arms and legs she could not straighten them out and her mother, unable to coherently communicate, would cry out in pain when she tried.

The defense contended that the damages award was excessive because there was insufficient evidence that Ms. Feinstein was conscious for significant periods of time, none of the nursing pain assessments in the medical records noted that decedent was in pain and it did not appear that the prescribed Tylenol was ever given.

Inside Information:

  • During trial, plaintiffs settled with Norwegian for $200,000. Therefore, plaintiffs’ judgment (against the physician) was in the principal sum of $385,000. (70% of $550,000).

 

 

Punitive Damages – Recent Cases

Posted in Punitive Damages

In addition to awarding damages to compensate plaintiffs for their injuries, a jury may award punitive damages  if the jurors find that the acts of the defendant that caused the injury complained of were wanton and reckless or malicious, represent a high degree of immorality or show such wanton dishonesty as to imply a criminal indifference to civil obligations. The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant and to thereby discourage the defendant and others from acting in a similar way in the future.

Recent cases have highlighted some of the issues facing appellate courts when plaintiffs claim punitive damages.

In Cardoza v. City of New York (1st Dept. 2016), an excessive force and malicious prosecution case, a Bronx County jury awarded 49 year old William Cardoza pain and suffering damages for extensive hand injuries in the sum of $2,500,000 (previously discussed by us here) as well as punitive damages in the sum of $1,500,000 ($750,000 against each of the two involved police officers). The trial judge vacated the award of punitive damages finding that there had been no showing by clear and convincing evidence that the arresting police officers were motivated by actual malice or acted in reckless disregard of plaintiff’s rights.

The appellate court reinstated $150,000 of the punitive damage awards ($75,000 against each officer) noting that the punitive damages were tied to plaintiff’s constitutional tort claims under 42 U.S.C. Section 1983, which stemmed directly from plaintiff’s excessive force and malicious prosecution claims. The court stated that punitive damages are available in Section 1983 actions “when a defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to federally protected rights of others.” The court held that there was sufficient evidence from which the jury could have reasonably concluded that the officers acted with reckless indifference or malice when they initiated the criminal prosecution against plaintiff without probable cause and used excessive force during his arrest.

In Chiara v. Dernago (2d Dept. 2015), a woman in a rear-end car crash case was awarded pain and suffering damages in the sum of $160,000 for her neck injury (previously discussed by us here) plus punitive damages in the sum of $70,000. On appeal both damages awards were affirmed. The defendant driver 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 award of punitive damages was based upon plaintiff’s claim that not only was defendant 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.

In Hotaling v. Carter (4th Dept. 2016), a college student punched in the face and knocked unconscious sustaining multiple facial fractures and a concussion was awarded $40,000 for pain and suffering damages but his punitive damages claim was dismissed at trial despite the fact that the defendant had been charged with misdemeanor assault and pled guilty to harassment. The appellate court affirmed the pain and suffering damages award but agreed with plaintiff that the punitive damages claim should not have been dismissed in view of defendant’s plea allocution and conviction of harassment in the second degree. The case was remitted for a trial on the punitive damages claim.

In Anderson v. County of Suffolk (2d Cir. 2015), plaintiff had been arrested on an outstanding warrant and taken to a county police precinct for processing and detained overnight. During his detention, he was removed from his cell and assaulted by police officers sustaining a swollen eye, a fractured nose, lacerations and contusions. He claimed these and other injuries including knee derangement, back pain and neck pain. A jury in federal district court in Brooklyn ruled in plaintiff’s favor as to his excessive force and battery claims and awarded him $20,000 in compensatory damages and $75,000 in punitive damages. The punitive damages award was upheld on a post-trial motion with the judge considering the three guideposts for evaluating the size of a punitive damages award set forth by the U.S. Supreme Court in BMW of North America v. Gore (1996) – the degree of reprehensibility of defendant’s conduct, the punitive award’s ratio to the actual harm inflicted and the civil or criminal penalties that could be imposed for comparable misconduct.  The federal appellate court affirmed the trial judge’s order upholding the punitive damages award.

In Morse v. Fusto (2d Cir. 2015), a 55 year old dentist was indicted by a Kings County grand jury on charges of grand larceny and offering a false instrument for filing in connection with alleged false billing to Medicaid. After his acquittal, plaintiff claimed in a federal court lawsuit that he’d been deprived of his constitutional right to a fair criminal trial by a prosecutor and an investigator who knowingly created false or misleading evidence. A jury in the federal district court in Brooklyn rendered a verdict in plaintiff’s favor on liability and awarded him mental and emotional pain and suffering damages in the sum of $2,500,000. In addition, they awarded lost earnings in the sum of $4,224,936 and punitive damages in the sum of $1,000,000. The trial judge reduced the punitive damage award to $100,000 (and the emotional distress damages to $400,000). Plaintiff accepted the remittitur and the federal appellate court affirmed the lower court’s denial of defendants’ motions for judgment as a matter of law or a new trial.

Inside Information:

  • Claims for punitive damages are generally not covered by insurance; however, when such awards are made against police officers their employers, such as the City of New York, usually will indemnify them for punitive damage awards and the officers will not have to pay out of pocket. We understand that’s exactly what occurred in the Cardoza case discussed above.
  • Delone Carter, the defendant in the Hotaling case discussed above, was a football star at Syracuse University who was drafted by the Indianapolis Colts (an NFL team) in 2011 and signed a four-year contract worth roughly $2,000,000 for the four years. He was traded to the Baltimore Ravens in 2013, cut later that year, then signed by the Jacksonville Jaguars and released in 2014.

Verdict Affirmed for Worker Injured in Forklift Accident

Posted in Hand Injuries

On March 26, 2010, Eladio Hernandez was hired for the day to level out the driveways and gas pump lanes at a gas station  in South Ozone Park.

gulf

There was a large high pile of dirt that was to be removed and the 51 year old Mr. Hernandez was instructed to shovel it away while standing in a plastic container mounted on a forklift operated by a gas station employee. As the driver was backing up the forklift and lowering the fork, Hernandez was thrust toward the ground nine feet below and sustained serious injuries as he grabbed onto the forklift to steady himself and his hand was crushed when it became caught for 45 seconds in a moving part of the machine’s mechanism.

forklift-fall-injury

In the ensuing lawsuit against the premises lessor and the gas pumps operator under Labor Law Section 200, a Queens County jury found the defendants were fully at fault and awarded plaintiff pain and suffering damages in the sum of $875,000 ($200,000 past – three years, $675,000 future – 24 years).

In Hernandez v. Pappco Holding Co., Ltd. (2d Dept. 2016), both the liability and damages determinations have been affirmed.

The court’s decision did not mention the injuries sustained. Here are the injury details:

  • crush-burst type fractures of the middle phalanges, index, middle and ring fingers of his left (dominant) hand
  • casted and splinted for five days before surgery
  • percutaneous pinning surgery to repair the fractures followed by pin removal surgery one month later
  • occupational/hand therapy three times a week for nine months
  • permanent significantly limited range of motion with twisted, deformed and painful fingers, unable to make a fist, unable to pick up small items and unable to return to construction work
  • 31% total disability impairment to his hand (according to plaintiff’s expert hand surgeon, who was the only testifying physician)

hand anatomy

Inside Information:

  • There was no loss of earnings claim; plaintiff returned to work such as light painting or cleaning jobs that did not require any strength.
  • In closing arguments, plaintiff’s attorney asked the jury to award $675,000 for past pain and suffering damages plus $1,100,000 for the future.
  • The defendants argued that the jury award should be reduced because plaintiff returned to some work and asserted no loss of earnings claim, claimed only partial loss of use of his hand, his surgery was “unremarkable,” his disfigurement was “mild”and his fingers “healed with some residual effects but without malunion or nonunion.” They also argued that the amounts requested by plaintiff’s counsel were impermissible and unreasonably excessive (a rarely used contention that was rejected by the court).