Header graphic for print

New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

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).

Substantial Jury Awards for Driver and Passenger Reduced in Intersection Crash Case

Posted in Brain Injuries, Knee Injuries, Leg Injuries

On August 19, 2008, Dorothy Dunnigan was driving through an intersection on White Plains Road in the Bronx when her vehicle was struck by a transit authority bus. Both the 79 year old Ms. Dunnigan and her 41 year old passenger Dorothy Lemon sustained serious injuries.

bus_accident_0502

In their ensuing lawsuits, a Bronx County jury determined in April 2013 that the crash was 100% the fault of the bus driver and the jurors awarded pain and suffering damages, as follows:

  1. to the estate of Ms. Dunnigan (she died in 2011 from unrelated causes) in the sum of $2,000,000 (all past – three years) and
  2. to Ms. Lemon in the sum of $4,000,000 ($2,000,000 past – three years, $2,000,000 future – 35 years).

In Coleman v. New York City Transit Authority (1st Dept. 2015), the awards have been substantially reduced – to $1,000,000 for Ms. Dunnigan’s estate and to $3,500,000 ($1,500,000 past, $2,000,000 future) for Ms. Lemon.         

As set forth in the court’s decision, Ms. Dunnigan sustained head and other injuries while Ms. Lemon sustained femur, knee and other injuries.

Here are the injury details:

Dunnigan: At the hospital immediately following the accident, she complained of headaches and overall body pain. A CT scan disclosed a subdural hematoma which required surgical evacuation with burr holes drilled into her skull. Following her craniotomy, Ms. Dunnigan remained hospitalized for five weeks and then she was admitted for one month to a rehabilitation facility. Although she drove a car and never required ambulatory assistance before the accident, she could no longer drive thereafter and required a rolling walker to get around. In addition, she had continuing shoulder, neck and knee pain, left side weakness, poor balance and forgetfulness all of which, plaintiff’s expert neurologist testified. were the result of her traumatic brain injury. She was essentially confined to her home until she died.

subdural hematomathu_jpg

Lemon:  A comminuted right femur fracture required open reduction internal fixation surgery with the insertion of an intramedullary rod and screws and a one month hospitalization. Upon discharge, she required visiting nurse assistance and inpatient rehabilitation. She never returned to work as a home health aide and required a cane to walk. About four years after the accident, Ms. Lemon underwent arthroscopic surgery on her right knee to repair a torn meniscus that her doctor opined was due to increased stress because of the femur fracture. She also suffered from back pain and unremitting headaches and dizzy spells 2-3 times a week and was diagnosed with depression for which she was medicated and undergoing psychiatric care.

nailing

Femur Fracture Nailing

The jury also awarded lost earnings damages to Ms. Lemon in the sum of $6,000,000 ($1,000,000 past – five years, $5,000,000 future – 35 years) but those amounts were slashed to $825,000 by the trial judge and further reduced by the appellate court to $617,000 ($97,000 past, $520,000 future – 25 years). The trial judge’s reduction was based upon plaintiff’s annualized last year’s wages as a part-time home health aide ($20,800) and the appellate court’s additional reduction was because there was no evidentiary basis to conclude Ms. Lemon would work the remainder of her life expectancy.

Inside Information:

  • During a recess between the close of evidence and summations, one of the jurors told the judge that Ms. Lemon approached her and said something to the effect of “vote for me.” The defendants moved for a mistrial arguing that their case was prejudiced. After extensive inquiry by the judge, the application for a mistrial was denied.
  • In their summations, the attorney for Ms. Dunnigan’s estate asked the jury to award $1,000,000 for her pain and suffering while the attorney for Ms. Lemon asked for $6,000,000.
  • Before the accident, Ms. Lemon was working as a home health aide for Ms. Dunnigan 20 hours a week helping her with matters such as shopping and laundry due to Ms. Dunnigan’s pre-existing cardiac and arthritis issues. Otherwise, Ms. Dunnigan had been in relatively good health.

Appellate Court Addresses Damages in Fatal Car Crash Case

Posted in Wrongful Death

On January 24, 2004, Col. (retired) William Gardner sustained fatal injuries when the vehicle he was driving struck and vaulted over an interstate highway’s snow-covered barrier in Syracuse and fell to the street below. We discussed the ensuing lawsuit in previous articles, here and here. In Gardner v. State of New York (4th Dept. 2015) almost all of the damages findings have been affirmed on appeal.

At the damages trial (judge only, no jury), the total award was $3,569,985 which included:

  1. $1,122,150 for loss of financial support for the decedent’s two teenage sons
  2. $1,365,500 for the boys’ loss of inheritance
  3. $825,000 for the boys’ loss of parental guidance
  4. $250,000 for pre-impact terror
  5. $0 for pre-death pain and suffering

The appellate court affirmed the awards for pre-impact terror (based on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and that it took “several seconds” to fall to the street below), loss of parental guidance and future loss of financial support but reduced by $323,000 the awards for past loss of financial support because that’s all the evidence supported. Additionally, the appellate court rejected claimants’ contention that the trial judge erred in using a personal consumption rate of 45% (their expert used a rate of 28.5% while defendant’s used a rate of 95%).

The affirmed parental loss of guidance awards in the sums of $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) and $475,000 ($425,000 past – 9 years, $50,000 future – three years) for Ryan (24 years old at trial)  were based upon the testimony of the sons about how involved and supportive their father was in their lives as well as testimony from their mother (to whom Gardner was married for 14 years before they divorced four years before his death) and several of Col. Gardner’s friends. The trial judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers. The appellate court noted that the children were teenagers but that  courts may even award damages to financially dependent adults.

The trial judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.” This ruling was not appealed.

The defendant appealed trial judge’s periodic method of payment (but not the amount) of the $1,365,000 award for loss of inheritance but the appellate court ruled that CPLR 5041 , the statute requiring a lump sum present value for certain awards, is not applicable in this case.

 

 

 

 

 

 

Newborn’s Brain Injury Pain and Suffering Award Reduced

Posted in Brain Injuries, Medical Malpractice

Jaelin Sence was born on July 4, 2007 at New York Methodist Hospital (NYMH) in Brooklyn.  He was discharged two days later after examinations and tests indicated to hospital personnel he was normal and healthy.

photo of hospital

New York Methodist Hospital in Brooklyn

The next day, though, Jaelin began to vomit and show signs of serious illness. He was rushed to another hospital where he was diagnosed with hyperbilirubinemia and found to be severely neurologically and brain impaired.

After a two week trial in November 2013, a Kings County jury determined that the hospital and Jaelin’s private pediatrician had committed medical malpractice because Jaelin was suffering from jaundice during his admission at NYMH and they failed to properly examine, diagnose and treat him during that critical time (his first two days of life) when the tragic consequences that ensued could easily have been prevented.

The jury awarded pain and suffering damages in the sum of $11,015,000 ($4,000,000 past – six years, $7,015,000 future – 61 years).  On appeal in Sence v. Atoynatan (2d Dept. 2016), the past pain and suffering award was reduced to $2,000,000 and, thus, the total approved pain and suffering award is $9,015,000.

The main injury sustained by Jaelin is kernicterus (brain damage from severe hyperbilirubinemia), a condition that caused cerebral palsy.

Here are the injury details:

  • unable to move limbs voluntarily or in any useful manner
  • unable to walk
  • no head control
  • cannot feed or dress himself
  • cannot speak

Despite his physical and brain damage, Jaelin can see, hear and make sounds, he can track objects, responds to being called and he is aware. He goes to school and enjoys playing. According to plaintiff’s expert neurologist, an MRI showed there was no damage “in any part of the thinking brain;” instead, it showed problems in the cerebellum, which mainly involves movement.

brain-parts-near-pod-session-3-638

Based upon testimony from its expert neurologist, the hospital argued that Jaelin is unaware of his condition and will have a reduced life expectancy (10-15 years) and therefore the damage awards were excessive. Plaintiff argued, though, that the jury, having been shown a short video of Jaelin and having viewed him court, was able to judge for themselves Jaelin’s awareness and ability to interact. While the appellate court reduced the past pain and suffering award from $4,000,000 to $2,000,000, it did not comment upon or disturb at all the $7,015,000  future pain and suffering award,  apparently agreeing with plaintiff that Jaelin is aware of his condition and will have a life expectancy of 61 more years.

As set forth on the verdict sheet, the jury also awarded damages for:

  1.  future medical care expenses in the sum of $12,433,300 (including $7,330,000 for home health aides, $4,282,200 for therapy, $643,550 for medical equipment and $177,510 for medical costs, all over 61 years with growth rates of about 4% per year) and
  2.  future loss of earnings in the sum of $1,365,000 (over 39 years at the rate of $35,000 per year with growth rate increases of about 4% per year).

Inside Information:

  • Prior to and during trial, NYMH took a “no pay” position regarding settlement. After the verdict, plaintiff’s settlement demand was $12,000,000 against which the hospital offered to pay its liability insurance coverage of $7,500,000.
  • Jaundice is common in newborns but it is crucial that it be treated. Plaintiff’s attorney, the renowned Thomas A. Moore, said: “I don’t know if I have ever seen a more preventable case.”

 

Back and Knee Pain and Suffering Award Affirmed on Appeal in Pedestrian Knockdown Case

Posted in Back Injuries, Knee Injuries

On June 12, 2009, 32 year old Jason Kowalsky was a field technician for Verizon standing at the back of his parked van when he was hit by a pick-up truck owned by the County of Suffolk.

Verizin van

In his ensuing lawsuit, Kowalsky’s motion for summary judgment as to liability was granted and in August 2014 the case proceeded to a damages only trial.

Plaintiff was awarded pain and suffering damages in the sum of $1,050,000 ( $200,000 past – five years, $850,000 future -41 years). The trial judge ordered a reduction of the future damages award to $200,000. On appeal, in Kowalsky v. County of Suffolk (2d Dept. 2016), the entire pain and suffering award has been reinstated.

As set forth in the court’s decisions, plaintiff sustained a back injury that required surgery. Here are the injury details.

  • emergency transport to local hospital with severe overall body pain and knee placed in immobilizer; discharged to home by ambulance but returned to the hospital same day and two days later complaining of leg pain
  • right knee arthroscopic meniscal repair surgery on 12/2/09; partially torn anterior cruciate ligament and chondromalacia observed
  • knee brace for one month, crutches for three months
  • low back pain radiating to lower extremities due to annular tear at L4-5 requiring physical, injection and medication therapies and on 6/3/12 lumbar laminectomy surgery and a spinal fusion at L4-5 with screws, rod and a bone graft
  • at the time of trial, plaintiff had limited range of motion in his spine, chronic pain syndrome, was unable to lift or bend and the side effects of extensive continuing opioid pain medications (he was taking Oxycodone, Methadone, Flexeril, Ibuprofen and Ambien) left him sluggish, groggy, cognitively impaired, with extremely limited daily activities and unable to return to any work at all
  • all injuries were deemed permanent and plaintiff’s prognosis was poor for control of his chronic pain

annular tears 2

The jury also awarded economic damages in the sum of $4,038,000 ($2,625,000 for lost earnings and $1,413,000 for lost benefits). The trial judge ordered substantial reductions of all future economic (and future pain and suffering) losses but the appellate court reinstated them all. The jury award for past lost wages was at the rate of $75,000 per year which was about what plaintiff had earned in a recent year; future lost earnings (over a 24 year period) were based upon increases plaintiff claimed he would have enjoyed over the years. The defendants’ main argument as to the lost earnings awards was that plaintiff could perform some form of sedentary work, according to their experts. As the court noted, though, the jury was free to adopt the opinions of plaintiff’s expert physicians who opined that he could not return to any form of work, sedentary or otherwise (mainly due to the debilitating effects of continuing narcotic pain medications).

Inside Information:

  • Defendants raised on appeal an allegation that a year before trial plaintiff pled guilty to felonious grand theft and that any claims of accident related inability to work are extremely suspect. Plaintiff argued that this claim was not raised at trial and should therefore not be considered by the appellate court. It was not mentioned in the decisions.

Mesothelioma Pain and Suffering Damages Awards Affirmed

Posted in Mesothelioma

Between 1966 and 1972, Ralph North  was exposed to asbestos at the Long Island Lighting Company (“LILCO”) power station in Northport where he worked as a welder during construction of a power station.

The LILCO power plant

Asbestos is a mineral whose fibers are invisible and, when cut, they float around in the air and can without notice be breathed into one’s lungs and cause mesothelioma (a malignant cancer that develops on the linings of the lungs).

Asbestos-2_l

Often, this terrible disease’s symptoms may not appear for 20-50 years. That’s what happened to Mr. North who was diagnosed with mesothelioma in January 2013 when he was 78 years old.

He promptly sued claiming that LILCO failed to post warnings or provide protective materials to prevent the amount of asbestos dust he was exposed to by activities such as applying asbestos to insulate boilers, insulating pipes with asbestos-containing materials and cutting asbestos block. The defendant argued that it did not exercise supervision or control over the work of its various contractors. There was evidence, though, that LILCO specified the use of asbestos of insulating pipes and boilers and even specified how the product should be mixed and applied.

On September 29, 2014, a Manhattan jury returned a verdict finding that National Grid Generation LLC (LILCO’s successor) was liable for pain and suffering damages resulting from asbestos exposure that caused plaintiff’s mesothelioma. The jurors then awarded pain and suffering damages in the sum of $7,000,000 ($3,500,000 past – two years, $3,500,000 future).

In North v. National Grid Generation LLC (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • In mid-2012, Mr. North began to suffer from shortness of breath, difficulty breathing and chest pain; he presented to a hospital in January 2013 where he was diagnosed with a left pleural effusion and a left lung collapse and underwent a video assisted thoracoscopy (surgical insertion of an endoscope to visually examine the pleura and lungs and, in this case, to remove six liters of fluid that had filled up his entire chest cavity)
  • second thoracoscopy within a few weeks, this time at Memorial Sloan Kettering Hospital at which time it was clear that there was no area of the lung that could be considered free of mesothelioma which was so extensive that no surgery could remove it
  • vaccinia virus experimental treatment using a benign virus to elicit a response from the body that would limit the mesothelioma
  • thoracotomy (opening the chest wall with a large incision) and pleurectomy (surgical removal of diseased pleura – part of the lining of the lung)
  • radiation  – 20 sessions to try to limit (not cure) the spread of the cancer; the radfiation itself caused difficulty swallowing, esophageal pain, appetite and weight loss, near constant hacking cough and sleep loss
  • limitation of all significant physical activities because of difficulty breathing with greatly diminished lung capacity
  • grim fatal prognosis (as set forth in the testimony of plaintiff’s expert pulmonologist Albert Miller, M.D.) as the disease progresses into adjacent and distant tissues causing increasing symptoms of pain, shortness of breath, difficulty breathing,  need for larger and larger doses of narcotic pain medication, loss of appetite, weight and strength

Inside Information:

  • plaintiff’s exposure to asbestos at LILCO was for about two and a half years total
  • defendants did not challenge the excessiveness of the award for past pain and suffering
  • the parties did not request a jury charge concerning life expectancy and the verdict sheet did not include a period of years for the future pain and suffering element of damages
  • in his summation as to damages, plaintiff’s attorney suggested $5,000,000 for past pain and suffering plus $10,000,000 for the future

TWO OTHER MESOTHELIOMA CASES:

  1. Konstantin v. 630 Third Avenue Associates (Court of Appeals 2016) – $8,000,000 ($4,500,000 past – 33 months, $3,500,000 future – 18 months) reduced from $19,000,000 by the trial judge for a 55 year old man whose exposure to asbestos resulted from working with  joint sealing compounds at construction sites in 1976 and 1977.  In January 2010, he was diagnosed with mesothelioma of the tunica vaginalis, an asbestos-related cancer of the tissue lining the testicles. He endured five surgeries, including the removal of one testicle and his scrotum; two rounds of chemotherapy; and one round of broad-ranged radiation.  Six months after his diagnosis, the mesothelioma had spread to his pleura, the membrane lining his lungs. He suffered three years of extreme pain and swelling and died on June 6, 2012. The trial judge’s reduction was affirmed by the Appellate Division but the defendant appealed to the state’s highest court claiming it was prejudiced when it was compelled to try the case jointly with another mesothelioma case involving different parties. The Court of Appeals, though, affirmed the Appellate Division’s order.
  2. Dummitt v. A.W. Chesterton (1st Dept. 2014) – $8,000,000 ($5,500,000 past – 27 months, $2,500,000 future – six months) reduced from $32,000,000 by the trial judge for a 67 year old man whose exposure to asbestos came from maintaining valves in boiler rooms aboard U.S. Navy ships between 1960 and 1977. He began to experience symptoms of pleural effusion in 2009 and was diagnosed with pleural mesothelioma in April 2010. He endured four very painful thoracenesis procedures to relieve crushing pressure in his lungs, thoracic surgery, a complete lung collapse and three rounds of chemotherapy. This case was tried jointly with the Konstantin case discussed above and the trial judge’s reduction was affirmed in the same decision that affirmed the reduction in the Konstantin case. The defendant in this case, though, did not appeal further.

Courts Address Emotional Distress and Psychological Injury Damages

Posted in Psychological Damages

In June 2011, high school student Bridgette Belton landed a job as a food server at Popeye’s Chicken Restaurant at 145th Street and Frederick Douglass Boulevard in Harlem.

Popeyes Restaurant

Each day Bridgette would walk from school to the restaurant where she’d change out of her school uniform into a work uniform. A disgusting pattern of sexual harassment began almost immediately,  two or three times a  week, when her boss, the 30 year old married manager Ivan Pachecho, would touch her breasts and vagina while she changed uniforms in a locker room at the restaurant. He also inserted his hands into her pants, exposed himself to her and offered money for sexual intercourse (all of which she rebuffed and refused).

After six months on the job (20 hours a week during the school year and 40 hours a week during the summer), Bridgette accumulated about $6,000 much of which she contributed to her financially struggling father and some of which she saved for herself. She could not withstand the harassment any longer and quit the job in December 2011.

In the ensuing lawsuit against her employers, on December 11, 2014, a Bronx County jury awarded Ms. Belton $300,000 for emotional distress damages plus $20,000 for compensatory damages for constructive discharge.

Defendants’ post-trial motion to set aside the verdict was granted in part – the judge reduced the emotional distress damage award to $100,000.

On appeal, though, in Belton v. Lal Chicken, Inc. (1st Dept. 2016), the $300,000 award was reinstated.

Here are the injury details:

  • forced to leave high school in the middle of her senior year after her school work suffered
  • withdrew from her friends, school-mates and family and no longer wanted to be around people during the six month period of the harassment and thereafter
  • episodes of uncontrollable crying
  • lowered self-esteem, confidence and motivation
  • gained 85 pounds to make her less attractive to her boss

In September 2012, Bridgette enrolled at the Borough of Manhattan Community College where she discussed  the facts of her sexual harassment (for the first time with anyone other than her lawyer) with Precious Sellars-Mulhern, Ph.D., a guidance counselor who is a clinical psychologist. Dr. Sellars-Mulhern testified at trial that plaintiff suffers from post-traumatic stress syndrome (“PTSD”).

Inside Information:

  • The jurors deliberated for only 70 minutes before returning their verdict.
  • On her last day at work, plaintiff surreptitiously made a videotape showing her boss touching her breasts and vagina and tampering with her zipper while she was trying to push him away. The tape was admitted in evidence and shown to the jury.
  • Plaintiff’s attorneys were awarded legal fees in the sum of $64,000 pursuant to Section 8-502(g) of the Administrative Code of the City of New York.

 OTHER CASES:

  1. Douayi v. Carissimi (1st Dept. 2016) – emotional distress damages in the sum of $400,000 ($200,000 past – six years, $200,000 future – 50 years) for a 25 year old woman whose baby was stillborn due to medical malpractice. Only liability was challenged on appeal.
  2. Silipo v. Wiley (3rd Dept. 2016) –  psychological damages in the sum of $64,000 affirmed for an employee whose boss, despite her protests, grabbed her, tried to engage her in sexual relations and ultimately fired her. She sustained debilitating psychological symptoms for several months and developed post-traumatic stress and adjustment disorders with anxiety.

Appellate Court Reinstates Almost All of Trial Judge’s Reduction of Construction Worker’s Foot Injury Pain and Suffering Damages Verdict

Posted in Foot Injuries

On August 3, 2011, Andrew Lombardi was injured while working as a carpenter on the sixth floor of an office building at 205 Hudson Street in Manhattan.

205 Hudson Street NYC

Mr. Lombardi, then 41 years old, was employed by Centre Street Systems, Inc., one of several trades working for several weeks on the gut renovation of 30,000 square feet. His duties included framing walls and laying out office spaces. At about 12 noon on the day of his accident, Lombardi was on his way to lunch when he stepped on a piece of electrical conduit debris causing him to fall down and injure his foot.

In his ensuing lawsuit, a Manhattan jury determined that the general contractor violated Labor Law 241 (6) and was 65% at fault (and that plaintiff was 35% at fault). The jury then awarded pain and suffering damages in the sum of $800,000 ($400,000 past – 4 years, $400,000 future – 8.5 years).

Following a post-trial motion by the defense arguing that the damages award was excessive, the trial judge issued a decision reducing the award to $125,000.

Both sides appealed – plaintiff arguing that the jury’s pain and suffering awards should be reinstated, defendant arguing that the liability verdict should be reversed.

In Lombardi v. Structure Tone, Inc. (1st Dept. 2016), the appellate court affirmed the liability verdict and ruled that  $770,000 is the proper amount for pain and suffering in this case –  reinstating the $400,000 past pain and suffering award and allowing $370,000 for future pain and suffering. The $770,000 represents plaintiff’s gross pain and suffering award – to be reduced by 35% for his comparative negligence.

As set forth in the court’s decision, plaintiff sustained a right foot fracture requiring two surgical procedures. Here are the injury details:

  • comminuted, displaced and avulsed fracture of 5th metatarsal
  • 5thmetatarsal
  • first surgery on 8/11/11 – open reduction internal fixation with insertion of metal plate and screws
  • second surgery on 10/13/11 – removal of hardware and debridement
  • hyperbaric chamber treatment (20 times for 90 minutes each) and debridements
  • impeded and prolonged healing due to pre-existing diabetes
  • tendinosis of the peroneal brevis
  • instability and weakness of foot, decreased range of motion and persistent pain, all preventing return to construction work and any recreational activities
  • depression

Inside Information:

  • plaintiff was diagnosed with Type 1 diabetes when he was in his 30’s and had developed diabetic neuropathy in his right foot but never missed any work because of it
  • defendant’s expert orthopedic surgeon testified that plaintiff’s tendinosis is due to his diabetes not the fracture; however he opined before trial that plaintiff had permanent residual effects from the fracture which were “much worse because of his diabetes that was there before he had the fracture.”
  • diabetes affected plaintiff’s father, mother and sister – his father died in his 40’s from a heart attack and his mother passed away at 37 after becoming blind