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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Shoulder Injury Pain and Suffering Verdict Modified Downward by Trial Judge, Upward by Appeals Court Judges

Posted in Shoulder Injuries

On October 22, 2003, Denise Morales slipped and fell on wet steps while exiting the rear door of a city bus at 167th Street and Ogden Avenue in the Bronx. She was taken to the local hospital by ambulance complaining of pain in her right shoulder and  back.

Ms. Morales fell when exiting the bus, unlike the man in this photo.

An ensuing lawsuit resulted in a verdict finding the city’s transit authority fully at fault and awarding Ms. Morales pain and suffering damages in the sum of $700,000  ($400,000 past – 8 years, $300,000 future – 49 years).

Defendants argued, successfully, that the amount was excessive and the trial judge ordered a reduction to $210,000 ($175,000 past, $35,000 future).

Plaintiff appealed arguing that the trial judge’s reduction was improper and the $700,000 jury verdict should be reinstated. In Morales v. Manhattan and Bronx Surface Tr. Operating Auth. (1st Dept. 2013), the appellate judges ordered an increase to $550,000 ($300,000 past, $250,000 future)

The appellate court decision discloses that Ms. Morales was 24 years old at the time of the accident and sustained a partial thickness rotator cuff tear requiring surgery as well as an injury to her lower back.

Here are further injury details:

  • taken by ambulance from the scene to Bronx Lebanon Hospital complaining of shoulder and back pain; radiological studies were negative; treated in the ER and released with a cervical collar, a cane and pain medication
  • physical therapy at Bronx Medical Health Center starting about two weeks after the accident for a period of nine months
  • arthroscopic surgery on right shoulder August 3, 2004 revealing severe impingement, partial thickness supraspinatus tear, bursitis and synovitis requiring removal of thickness in the acromion and resection of the bursa
  • new, two month course of physical therapy post-surgery
  • permanent decreased range of motion and pain in shoulder and back
  • unable (a) without assistance to cook or clean house; (b) to carry as much as a gallon of milk; (c) to pick up kids (ages 11 and 14 years at trial) from school
  • requires continued narcotic pain medication
  • may need surgery to resect distal clavicle

The defense called only one medical witness to testify at trial – radiologist Sheldon Feit, M.D. He reviewed a pre-surgery MRI of plaintiff’s shoulder and concluded that it did not show evidence of a rotator cuff tear but that it did show a bony spur or osteophyte that he concluded was “a sign of degeneration at that joint.” Plaintiff’s expert orthopedic surgeon, Randall Ehrlich, M.D., testified to the contrary, stating: “I have never seen someone that young, in her 20′s, with a degenerative rotator cuff condition who is not a high level pitcher.”

Inside Information:

  • Ms. Morales was diagnosed with Crohn’s disease (a type of inflammatory bowel disease for which there is not yet a cure) at the age of 14 and suffered from it since then and up to the date of trial. It primarily causes abdominal pain. Defense counsel argued that plaintiff failed to present any evidence of the differentiation between her symptoms for Crohn’s as opposed to her injuries claimed in the accident.
  • Plaintiff’s treating orthopedic surgeon, Jeffrey Cohen, M.D., testified that he was never paid for the surgery but hoped to be paid after the trial as he had a lien on plaintiff’s recovery.
  • Prior to trial, plaintiff never had a recommended MRI to better diagnose her back injury because she had no insurance or money to pay for it.

Appellate Courts Affirm Damages Awards in Two Ankle Injury Cases but Require New Trials on Issues of Liability

Posted in Ankle Injuries

Antoinette Harrison, a 22 year old recent immigrant from Liberia, Africa, was on her way to the first day of classes at a nursing school in Brooklyn on January 18, 2005 when she slipped and fell on ice on the platform of an elevated subway station in the Bronx.

She never made it to class that day. She ended up in the hospital due to the ankle injury she sustained from the fall – a spiral comminuted bimalleolar fracture.

In her ensuing lawsuit, Ms. Harrison claimed that the transit authority was negligent because its employees knew about the ice, but failed to clear it away before she fell. A Bronx County jury agreed and rendered a verdict on June 28, 2011 awarding plaintiff pain and suffering damages in the sum of $500,000 ($200,000 past -  6 1/2 years, $300,000 future – 25 years).

On appeal in Harrison v. New York City Transit Authority (1st Dept. 2014), the damages award was affirmed but the liability finding was vacated because the trial judge’s instruction to the jury on the issue of constructive notice was in error.

Here is PJI 2:91, the language that New York trial judges use in fashioning their instructions to juries in slip and fall cases. In this case, the judge had not made it clear that plaintiff had to prove not only the existence of the icy condition but also “that it existed for a sufficient length of time for defendant to have discovered it and taken curative action.”

As set forth in the appellate court decision, despite the reversal on liability grounds, there is no need for a retrial on the issue of damages and, if the new jury finds liability, then the $500,000 award of damages should stand.

Here are some of the injury details in the Harrison case:

  • immediate ambulance transport to the local hospital where x-rays disclosed ankle fractures and torn ligaments
  • delayed surgery until a week later due to swelling
  • ORIF (open reduction internal fixation) surgery with plates and screws implanted
  • three days hospitalization
  • three months of physical therapy
  • pain from the protrusion of one of the implanted screws, resulting in second surgery three years later in which all screws and the plate were removed
  • permanent pain and numbness with loss of range of motion, weakness and swelling
  • unable to exercise or run, unable to wear high heels

Lucy Gonzalez, a 46 year old social worker for the New York City Health and Hospitals Corporation, slipped and injured her ankle entering P.S. 132, a City of New York owned school in Brooklyn, on the blistery cold, snowy and sleeting morning of February 14, 2007.

Ms. Gonzalez had gone to the school to assist a young woman enroll her daughter there. Ms. Gonzalez fell after climbing the steps to the school’s entrance, opening the door and stepping across the threshold. There was no floor mat placed behind the door and she fell because the floor was slippery and wet.

P.S. 132

Like Ms. Harrison in the case discussed above, Gonzalez sustained a bimalleolar ankle fracture. She also sustained a dislocated ankle (subluxation of her talus).

Gonzalez sued the city, the board of education and the school claiming their negligence caused her injuries. On April 14, 2011, a Kings County jury (a) found that the defendants were negligent in failing to keep the vestibule in a reasonably safe condition and (b) awarded plaintiff pain and suffering damages in the sum of $950,000 ($500,000 past – 4 years, $450,000 future – 32  years).

On appeal in Gonzalez v. City of New York (2d Dept. 2013), the damages award was affirmed but the liability finding was vacated because improper testimony had been admitted that was prejudicial to the defense:

  1. a hearsay statement from a security guard to the effect that someone else had fallen in the past and
  2. expert testimony regarding inapplicable national safety standards that plaintiff claimed applied to her case

As set forth in the appellate court decision, the reversal was on liability grounds only – the case was sent back “for a new trial on the issue of liability only.” In effect, the appellate court affirmed the propriety of the damages awards (which were not the subject of an appeal by either side) and, if the new jury finds liability, then the $950,000 award for pain and suffering damages (plus $50,000 for future medical expenses) will stand.

Here are some of the injury details in the Gonzalez case:

  • after transport by ambulance from the scene to the hospital, manual reduction of the fracture that was “exquisitely painful” according to expert testimony, then discharged to home for a week or so of elevation of the leg to reduce swelling
  • open reduction internal fixation surgery on February 23, 2007 (nine days after the accident) with the insertion of a lag plate and seven screws to secure it
  • five months out of work, returning on limited duty using  a cane and confined to desk duty for almost a year
  • second surgery on October 24, 2008 (about 19 months after the fall) to remove the plate and screws because of swelling and discomfort
  • “bad prognosis” with likelihood of intra-articular arthritis and, if so, additional surgery such as an ankle fusion
  • unable to run, play with her kids or wear high heels

 

Drastic Reduction of Jury’s Damages Award Ordered in Shoulder Injury Case

Posted in Shoulder Injuries

On June 8, 2008 Michelle Trezza, then a 25 year old office manager, was a rear seat passenger in a car that was struck by a city bus on Baychester Avenue in the Bronx. She claimed significant right shoulder injuries as a result of the impact and sued both drivers.

Normal Shoulder Anatomy

Since it was undisputed that the bus veered out of its lane and sideswiped the car, a judicial determination was made that the bus driver was 100% at fault and the matter proceeded to a trial on damages only.

On November 22, 2011, Ms. Trezza was awarded damages in the sum of $2,500,000 as follows:

  • pain and suffering in the sum of $2,000,000 ($500,000 past – 3.5 years, $1,500,000 future – 51 years)
  • future medical expenses in the sum of $500,000

In Trezza v. Metropolitan Transit Authority (1st Dept. 2014), the appellate court reduced the $2,500,000 award to $300,000, holding that:

  1. the $500,000 past pain and suffering award was excessive and should be reduced to $300,000 and
  2. there was no basis at all for any future damages and, accordingly, the $1,500,000 future pain and suffering award – as well as the $500,000 future medical expenses award – should be vacated entirely because there was not enough evidence to prove that plaintiff would endure pain and suffering in the future and her claim for future medical expenses was too speculative

Plaintiff’s main injury from the accident was a right shoulder impingement (when the acromion rubs against or impinges on the tendon and the bursa, causing irritation and pain).

Here are other injury details:

  • extensive physical therapy and treatment with orthopedic surgeons, beginning the day after the accident
  •  arthroscopic surgery on 11/7/09 including a bursectomy, resection of the coracoacromial ligament and an anterior acromioplasty
  • development of arthritic “bony spicule” formation
  • five sets of trigger point injections
  • residual shoulder pain and restricted range of motion leaving plaintiff unable to pick up her toddler daughter, ride a bicycle, play with her children or scrub the floor
  • disc herniation at C4-5 (minor treatment, apparently not significant to jury)

Inside Information:

  • Ms. Trezza developed carpal tunnel syndrome in both hands subsequent to the car accident but unrelated to it and underwent carpal tunnel release surgeries in early 2011. The defense argued that much  of plaintiff’s ongoing painful disability was related to her carpal tunnel injuries.
  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering  damages between $200,000 and $300,000 and he suggested that a fair amount for future pain and suffering would be between $300,000 and $500,000.
  • Plaintiff’s pre-trial settlement demand was $375,000 against which the defense had offered $115,000.
  • There was no loss of earnings claim.

Appeals Court Slashes Damages Verdict in Medical Malpractice Case

Posted in Brain Injuries, Medical Malpractice

Their traditional potluck dinner on Christmas Eve in 2001 was shaping up to be another wonderful event in the lives of Tom and Lorraine Buckley. As always, Tom had shopped at the local food stores in Warwick, New York and Lorraine prepared the house. A dozen friends arrived, drinks were served and then tragedy began to unfold.

Tom was sitting on a chair in a corner when Lorraine noticed his eyes were closed while he was repeatedly taking his right hand and trying with difficulty to touch his nose – sort of like the field sobriety tests police officers give to test a driver’s coordination.

Lorraine drove her 49 year old husband to the local hospital where he was treated in the emergency room. A CT scan was read as negative and he was discharged to home after an hour with a diagnosis of “lethargy possibly secondary to alcohol.” It turns out that Mr. Buckley was suffering from the early stages of a stroke but doctors missed the diagnosis.

After falling twice during the night, Lorraine again took Tom to the hospital. This time it was apparent to all that Mr. Buckley was experiencing a stroke. He was admitted and treated but severe and irreversible damage had already occurred.

In his ensuing lawsuit in Orange County Supreme Court, plaintiff claimed that the emergency room physician and the radiologist who read the CT scan were negligent in failing to admit him on Christmas Eve when they could have treated him for a stroke and avoided permanent damage.

After a three week trial, the jurors ruled that both physicians departed from accepted medical practices in failing to admit Mr. Buckley to the hospital on December 24th.

The jury awarded pain and suffering damages in the sum of $6,000,000 ($2,000,00 past – nine years, $4,000,000 future – 22 years); however, the trial judge found the awards excessive and he ordered a reduction to $2,250,000.

In Buckley v. Haque (2d Dept. 2013), the pain and suffering damages were further reduced to $1,300,000 ($300,000 past, $1,000,000 future).

The appellate court decision offers no insight into the nature of the plaintiff’s injuries which we have uncovered:

  • lacunar stroke of left basal ganglion
  • admitted to hospitals for five weeks
  • extensive physical, occupational and speech therapy first as an in-patient, then for many months as an outpatient, then at home
  • extremely slow gait (e.g., cannot cross a street before the light changes)
  • limited use of right arm
  • destruction of almost all social relationships
  • unable to help his teenage children with their education or enjoy fishing with his son and shopping with his daughter
  • marital relationship severely impaired

Inside Information:

  • After asking jurors to award past and future loss of earnings in excess of $4,000,000 (based on plaintiff’s prior salary of about $200,000 a year), plaintiff’s attorney addressed pain and suffering damages simply (and effectively) in his closing argument: “I would suggest that … [pain and suffering damages are] equal to the economic damages at least ….”
  • A full settlement has now been reached. After trial (but before the judge’s decision reducing the damage awards), plaintiff settled with the emergency room physician; he has now settled with the radiologist as well. The settlement terms are undisclosed.
  • Plaintiff had been the president of a silicone business in charge of everything except finances. He tried to return to work after being discharged from the rehabilitation hospital but was unable to run the business, physically, mentally and emotionally. His business partner forced him out of the firm in early 2004 and at the time of the trial he was employed part-time as a grocery store clerk.

Federal Court Orders Increase in Damages in Ankle and Wrist Injury Case

Posted in Ankle Injuries, Wrist Injuries

On May 18, 2007, at about 10:30 p.m., Oliver Tookes, a 57 year old off-duty gardener employed by the Port Authority of New York and New Jersey, returned to his workplace at the Bayonne Bridge tollhouse building in Staten Island where, the day before, he’d inadvertently left his car keys. Unfortunately neither he nor anyone else there that night had keys to the building but he and a supervisor could see the keys on a desk through an open window and they thought they could get the keys by hooking them onto a pole they inserted through the window.

At one point, standing outside the building on a metal grate covering a basement access pit, they had the keys hooked onto the pole but the keys fell off; at another point shortly thereafter, the grate collapsed and Tookes plunged nine feet below to a concrete floor causing serious fractures of his left ankle and left wrist.

The actual area where Tookes fell, from a trial exhibit in the ensuing lawsuit:

Claiming that the grates were not in a reasonably safe condition, Tookes sued the Port Authority in the United States District Court for the Eastern District of New York. Because Tookes was a Pennsylvania resident, so-called diversity jurisdiction was applicable allowing him to sue in federal court. The litigation resulted in two trials plus an appeal.

In the first trial, on December 10, 2010, in Tookes v. Port Authority of New York and New Jersey (E.D.N.Y. No. 08 CV 1060), the jurors found that the Port Authority was negligent in that the grates were not reasonably safe (there was testimony from an expert metallurgist who concluded that they were both misaligned and corroded) and they awarded Mr. Tookes pain and suffering damages in the sum of $450,000 ($50,000 past – 3.5 years, $400,000 future – 18 years). The jury also awarded $300,000 for his loss of earnings.

In a post-trial motion,  plaintiff argued that $50,000 for past pain and suffering was inadequate. The trial judge agreed and issued a decision on August 10, 2011 ordering a new trial limited to the issue of past pain and suffering damages unless the defendant stipulated to increase that award to $500,000.

The defendant refused to stipulate and therefore a second trial was held. On January 24, 2012, the new jury awarded $600,000 for past pain and suffering damages.

The injuries Mr. Tookes suffered are described well in the post-trial decision and summarized as follows:

  • Left ankle Grade 3 open bimalleolar intra-articular fracture with torn ligaments requiring four surgeries: (1) open reduction internal fixation the day after the accident with placement of four screws and a long pin, (2) cleaning and washing out wound infection a week later, (3) saphenous nerve surgery three months later to bury the nerve’s torn end (previously causing electric shock type shooting pain) inside the bone and tissue to get its ends away from everything), and, (4) ankle fusion surgery two years after the accident (see actual trial exhibit below).
  • Left wrist distal radius intra-articular fracture treated with an external fixator in place for several weeks.

I

Illustration Courtesy of Anatomical Justice, LLC

Tookes spent about a week in the hospital initially, then was transferred to a nursing home for seven weeks of rehabilitation. At trial, his treating orthopedic surgeon Nadubeethi Jayaram, M.D. testified that plaintiff’s ability to walk had decreased so much that the ankle fusion surgery was needed to restore his ability to walk again without significant pain. The ankle bones were fused together, using a bone graft from the hip, so that there wouldn’t be any more pain producing bone rubbing on bone.

Unfortunately,  Mr. Tookes was left with a permanent limp from having no ankle joint and new pain developed below the level of the fusion that may require even more surgery. The wrist, essentially healed within months, remains with some residual stiffness.

The first jury determined that Mr. Tookes was 40% comparatively negligent for the accident. On a post-trial motion, the plaintiff argued that there couldn’t be any comparative negligence since the grate collapse was not foreseeable to a layman, but the trial judge refused to disturb the jury’s finding.

Plaintiff appealed the comparative negligence finding and on October 18, 2013, the United States Court of Appeals for the Second Circuit reversed and held there was no comparative negligence at all. The appellate judges stated, in part, that “the evidence did not furnish a reasonable basis for a finding of negligence on Tookes’ part that contributed to his accident.” As a result, Tookes became entitled to 100% of the damages awarded, not just 60%.

The appellate court decision also upheld the defense position that the $300,000 loss of earnings award should be offset by expected Social Security disability benefits in the sum of $93,000.

Inside Information:

  • Tookes returned to work on light duty for eleven months before his ankle hurt so much that he required fusion surgery following which he was retired from his job on disability.
  • Just before the case was submitted to the jury for the first time, the trial judge explored the possibility of a settlement. Plaintiff’s demand had been $1,400,000 but the defense told the judge her client would not make any offer at all against such a high demand. The judge told defense counsel: “You may pay a dear price for lack of sound judgment on behalf of your client.” Furthermore, the judge said that the plaintiff’s demand was “not unreasonable,” he suggested that there should be a counteroffer and, finally, he said: “I’m telling you your client has just stonewalled this case. They’re entitled to put their neck in the noose.”
  • Plaintiff’s lawyer, Eric Turkewitz, was not only victorious in just about every aspect of this case but also his $1,400,000 pre-trial settlement demand was prescient – the amount ultimately awarded and paid was $1,455,000 ($1,300,000 in damages less the $93,000  disability benefits offset discussed above plus $248,000 representing interest on the damage awards at 9% per annum from the date of the first verdict in 2010.

Erb’s Palsy Damages Affirmed on Appeal in Obstetrical Medical Malpractice Case

Posted in Medical Malpractice

Susan Skelly-Hand was pregnant with her second child when, on February 25, 1996 at about 12:15 p.m., her water broke and her husband drove her to the hospital in Potsdam, New York. There, she met Jose Lizardi, M.D., the obstetrician who, two years earlier, delivered her first child. At 8:15 p.m. Rachel Elizabeth Hand was born weighing nine pounds, two ounces.

Unfortunately, Rachel’s right shoulder had become lodged against her mother’s pubic bone during the delivery (a condition known as shoulder dystocia).

As a result of the shoulder dystocia, Dr. Lizardi had to pull Rachel out with excessive force causing an injury to her brachial plexus (the network of nerves that sends signals from one’s spine to one’s shoulder, arm and hand) and she was diagnosed with Erb’s palsy (a form of paralysis causing arm weakness and loss of motion).

After years of treatment in a mostly futile effort to gain normal function of her right arm, Rachel’s parents brought a lawsuit against Dr. Lizardi alleging that he was negligent in failing to prepare for and perform a cesarean section, a procedure that would have avoided the dystocia and resulting injuries.

After eight days of trial, on June 27, 2012, the St. Lawrence County jurors rendered their verdict that the doctor was negligent, apparently based upon plaintiff’s expert’s testimony that:

  1. shoulder dystocia can be predicted and avoided by evaluating certain risk factors (e.g., if the mother is short and obese and if the baby’s birth weight is expected to be more than about eight pounds 13 ounces) and
  2.  delivery should be by cesarean section when there is a significant risk of shoulder dystocia.

Pain and suffering damages were awarded in the sum of $2,000,000 ($1,000,000 past – 16 years, $1,000,000 future – 65 years) and in Skelly-Hand v. Lizardi (3d Dept. 2013), both the liability finding and the damages awards were affirmed on appeal.

The court’s decision provides a good summary of plaintiff’s injuries and treatment, as well as a discussion of the prior cases and decisions that have dealt with damages in Erb’s palsy cases.

Here are details of the five surgeries underwent by Rachel Hand between the ages of 13 months and 15 years:

  1. Removal of scar tissue, nerve grafting, nerve repair and muscle repair, with an “L” shaped incision in Rachel’s neck from her ear down to her collar bone
  2. Muscle lengthening and re-tightening
  3. Biceps tendon lengthening and tightening of shoulder dislocation
  4. Triangle tilt procedure in which the scapula and clavicle bones were cut to allow the shoulder to tilt back to neutral
  5. Elbow procedure with serial casting to straighten out the elbow

All five surgeries were performed by Texas surgeon Rahul Nath, M.D., a world renowned brachial plexus injury specialist (whose videotaped testimony was shown to the jury). They were very painful, involved extensive travel and disruption and were followed by long periods of rehabilitation with braces, casts and splints. Unfortunately, the surgeries did not resolve the problem of Rachel’s extremely limited use of her right arm and shoulder.

Dr. Nath testified that Rachel has reached maximum medical improvement, it is likely her condition will deteriorate as she gets older and she will develop nerve compression, carpal tunnel syndrome and/or ulnar nerve compression, which may require further surgery.

Inside Information:

  • Plaintiff’s counsel contended that Dr. Lizardi was “marginally competent” highlighting the facts that (a) he was not board certified in obstetrics and gynecology and (b) in 1995, the State of New York suspended his license to practice medicine (the suspension was stayed during a period of probation, though, and he was allowed to continue practice). Over defense counsel’s objection, the trial judge allowed plaintiff to introduce evidence of the suspension.
  • In defense counsel’s summation, the jurors were urged to ignore the defendant’s lack of board certification and his suspension in favor of  adopting the testimony of the defendant’s expert who concluded that (a) a cesarean section was contraindicated and (b) Dr. Lizardi did not deviate from accepted standards of medical care.
  • $2,000,000 for pain and suffering appears to be the highest amount sustained by an appellate court in New York in an Erb’s palsy case. Plaintiff was represented by The Mills Law Firm, both at trial and on the appeal.
  • The total judgment was approximately $3,150,000. In addition to the $2,000,000 for pain and suffering damages, the jury awarded economic damages in the sum of approximately $1,150,000 as follows: $500,000 for reduction in lifetime earnings, $410,000 for future medical evaluations, services, therapy and equipment and $240,000  for past medical expenses.
  • The economic damages claim was supported by the testimony of plaintiff’s vocational rehabilitation expert, Kenneth W. Reagles, Ph.D.
  • After trial, the defense offered to settle for $2,000,000, the limits of the malpractice insurance policies available to Dr. Lizardi; however, plaintiff rejected the offer. Then, on December 20, 2012, the doctor filed a petition under Chapter 11 of the Bankruptcy Code in order to prevent judgment collection enforcement actions. This month, the the doctor consented to the dismissal of his bankruptcy case.

 

Hip Fracture Pain and Suffering Verdict Affirmed for Woman Struck by Closing Subway Doors

Posted in Hip and Pelvis Injuries

Georgette Victor, an active, vibrant 72 year old woman, had a full day on October 21, 2008. She escorted a friend to Kennedy Airport and then went to Manhattan to do some shopping. After that, she headed home to Queens, boarding the #7 subway train at Times Square. When she heard the conductor say the train was an express instead of a local, Ms. Victor got up from her seat and started to leave the train. The subway doors closed on her, though, and she was knocked to the ground sustaining serious injuries.

An ensuing lawsuit against the transit authority resulted in a finding that the conductor was liable for closing the doors too quickly.

Defendant contended that plaintiff recklessly tried to dash out and squeeze through the closing doors.

Ms. Victor was able to get up but quickly realized she was in great pain – she had sustained a non-displaced intertrochanteric hip fracture and was taken to the hospital by her son who was called to the scene.

The Manhattan jury awarded plaintiff pain and suffering damages in the sum of $850,000 ($400,000 past – three years, $450,000 future – six years). Both the liability finding and the damages awards have now been affirmed in Victor v. New York City Transit Authority (1st Dept. 2013).

As set forth in the decision, Ms. Victor suffered a fractured hip requiring surgery and, as a result, her lifestyle was changed as she was no longer able to travel regularly into Manhattan to visit museums and attend cultural lectures.

Here are additional injury details:

  • open reduction internal fixation surgery with screws and a steel intramedullary rod
  • six days hospitalization followed by two weeks at a nursing home for rehabilitation, one month of physical therapy at home and a few months as an outpatient
  • within three months of the accident, plaintiff was able to resume use of mass transit; according to her surgeon, she made a “very good or excellent recovery”

Inside Information:

  • Ms. Victor appeared at the trial in a wheelchair due to an unrelated stroke she sustained two years after her subway accident. The stroke caused her death on July 23, 2012. The future damages award ($450,000), intended by the jurors to cover a period of six years, will be recalculated pursuant to CPLR 5045.
  • Only one medical witness testified at trial – treating orthopedic surgeon, Edward Cleeman, M.D.
  • Since 2001, plaintiff had suffered from a series of spinal compression fractures. She also suffered from scoliosis. In the year after her accident and before her stroke, she suffered falls, fracturing her foot and her shoulder.
  • Plaintiff’s pre-trial settlement demand was $125,000; her attorney asked the jury to award $400,000 for pain and suffering damages, less than one-half of the amount actually awarded.

Appellate Court Dismisses Neck Injury Verdict – Plaintiff Failed to Prove Need for Cervical Fusion Surgery Not due to Prior Accident

Posted in Neck Injuries

Agnes McDonald, a 55 year old elevator operator,  was a rear seat passenger in a two car accident in Manhattan on January 20, 2005.

She was injured but did not seek medical treatment until four days later when she saw a physician at a local medical clinic, complaining of a stiff neck and a burning sensation down her neck and shoulders to her fingers. She underwent physical therapy, acupuncture and chiropractic care over the next three years and struggled with severe neck pain.

Then, an orthopedic surgeon recommended an MRI which showed a disc herniation at C4-5 with nerve irritation that the doctor found to be the significant cause of Ms. McDonald’s pain. On May 7, 2008, she underwent a cervical discectomy with fusion and plating at the C4-5 level.

Unfortunately, her pain was not alleviated by the surgery and she claimed she was so disabled that she could not pick up her grandson or lift anything and she relied upon others for almost all of her activities of daily living.

In McDonald’s lawsuit against the other driver, liability was resolved in her favor and then, on May 4, 2010, a Queens County jury awarded her damages in the total sum of $700,000 including:

  • $200,00 for pain and suffering ($100,000 past – 3 years, $100,000 future – 8 years)
  • $150,000 for past and future loss of earnings
  • $300,000 for past and future medical expenses and
  • $50,000 for past and future household expenses

In post-trial motions, plaintiff argued that the pain and suffering damages verdict was inadequate and should be increased to $950,000 while the defense argued that plaintiff had not met the “serious injury” standard applicable to car accident cases set out in Insurance Law Section 5102(d) and the case should be dismissed. The judge issued an order denying both motions.

On appeal in McDonald v. Kohanfars (2d Dept. 2013), though, the court reversed and dismissed the entire jury award because plaintiff failed to prove that her injuries were caused by this accident, and not by a 1992 accident that also had resulted in cervical fusion surgery (albeit at C5-6, one level below the new injury).

The key on appeal, and the apparent reason the jury rendered a relatively low award in a spinal fusion case, was the fact that Ms. McDonald had in 1996 undergone cervical fusion surgery at C5-6 due to a 1992 injury from heavy lifting.

While plaintiff testified that she hadn’t received any medical treatment between 1997 and 2005 for the injuries sustained in the 1992 accident and was pain free during that entire period, until the new accident, the appeals court ruled that it had to dismiss the case because the surgeon who operated on her in 2008 and testified at trial rendered medical causation opinions that were speculative.

Since plaintiff’s new surgeon only began treating Ms. McDonald in 2007 and hadn’t reviewed her prior treatment records (except for the 1996 operative report), the appellate judges concluded that the doctor had no basis for his conclusion that Ms. McDonald’s current injuries were caused by the 2005 accident as opposed to being pre-existing. The court therefore dismissed the case entirely because plaintiff had failed to prove she had from this accident sustained a “serious injury” and therefore she failed to meet the statutory threshold.

Record Pain and Suffering Verdict for Worker’s Burn Injuries Upheld on Appeal

Posted in Burn Injuries

Christopher Peat was working as a floor refinisher on July 1, 2003 in an apartment at Fordham Hill, a nine building cooperative apartment complex in the Bronx.

The Entrance to Fordham Hill

Mr. Peat, then 37 years old, was applying sealer to the floor of a vacant apartment when he heard a “whooshing” sound. He looked over his shoulder and saw a blue wall of flame headed towards him that he could not escape – before he knew it, his entire body was engulfed in flames.

In that tragic instant, Christopher Peat’s life was forever changed. He was severely burned over most of his body and was hospitalized for many months undergoing excruciating surgical procedures and treatment.

It turns out that the fire was caused when vapors emitted  by the floor sealing lacquer were ignited by an open flame from the pilot light in the apartment’s stove.

A lawsuit followed and on June 24, 2011, after 16 days of trial, a Bronx jury returned a verdict finding the apartment complex’s owner, Fordham Hill Owners Corp., fully at fault (it should have shut off gas in the apartment prior to plaintiff undertaking his work) and awarding Mr. Peat pain and suffering damages in the sum of $16,000,000 ($10,000,000 past – 8 years, $6,000,000 future – 32 years).

The jury verdict both as to liability and as to the amount of damages has now been affirmed in Peat v. Fordham Hill Owners Corp. (1st Dept. 2013).

The $16,000,000 affirmed for pain and suffering in this case is by far the most allowed by an appellate court in New York in a burn injury case.

Previously, the courts approved the following amounts in major burn cases:

As set forth in the appellate court decision, Mr. Peat sustained second and third degree burns over 50% of his body requiring 15 surgeries, extensive physical and occupational therapy and causing significant depression and post-traumatic stress disorder.

Plaintiff was also awarded $2,681,323  for medical expenses ($481,323 past plus $2,200,000 future – 32 years). This award was based upon the testimony and life care plan of plaintiff’s physical medicine and rehabilitation expert Joseph Carfi, M.D. who in turn based his conclusions as to plaintiff’s future medical needs upon the testimony of plaintiff’s plastic surgery expert Robert Goldstein, M.D. and the testimony of plaintiff’s psychiatrist Paul Ladopoulos, M.D. The defense did not call any medical experts to testify.

Here are additional injury details:

  • As he fell to the ground, afire, plaintiff heard his flesh sizzle like “bacon on a skillet” and smelled “burning flesh in the air.”
  • He ran down 17 flights of stairs and was still on fire for six minutes until firemen came and extinguished the fire on his body.
  • Peat was rushed to Jacobi Medical Center where he was admitted for over three months and underwent 14 surgical procedures (debridements, escharotomies, grafts and a tracheostomy).
  • Peat was transferred to Burke Rehabilitation Hospital for over three months of physical and occupational therapy.
  • He returned to the hospital in November 2003 for surgery of his right axilla – a scar contracture release procedure to help improve range of motion of his right shoulder and arm.
  • Heterotopic calcifications in his elbows causing mobility and range of motion deficits.
  • Limited use of hands and deformity of several fingers.
  • Extensive scars on his face, hands, shoulder, thighs, buttocks and torso.
  • Constant pain, sensitivity and decreased sensory appreciation.

Inside Information:

  • Before the verdict, plaintiff had demanded $9,000,000 to settle whereas the defense offered $5,000,000.
  • In summation, counsel for Fordham Owners suggested $2,500,000 for pain and suffering if plaintiff were to prevail on liability. Plaintiff’s counsel suggested that the jurors award between $22,000,000 and $33,000,000 for pain and suffering.
  • Mr. Peat did not receive any medical treatment for his burns during the six years leading up to trial, a fact the defense argued, unsuccessfully, demonstrated that future medical expenses in the millions of dollars were “completely unnecessary” and that claiming them amounted to “piling on.”
  • The defense argued strenuously and in detail that the injuries in the Weigl, LeiMoskowitz and Whitfield cases were far greater than those in the Peat case and that therefore there was no basis for the appellate court to affirm the “runaway verdict” in the Peat case. Plaintiff countered that Mr. Peat’s burns covered much more body surface than in the other cases and that applying current inflation adjusted figures in those cases puts them in line with, or makes their awards more than, the numbers in Peat. The appellate judges in Peat did not address this issue or explain in any meaningful manner the justification for affirming a pain and suffering verdict that was twice the amount of any such verdict previously permitted for similar injuries.
  • Although there was evidence that plaintiff could no longer work, his claim for loss of earnings was withdrawn, apparently because his prior earnings were “off the books” and he hadn’t paid income taxes.

UPDATE:

On May 13, 2014, the Court of Appeals denied defendants’ motion for leave to appeal.  Amicus curiae briefs were filed on behalf of The Voice of the Defense Bar, The Defense Association of New York and Law Reform Alliance of New York.

Significant Pain and Suffering Verdict Dismissed on Appeal in Car Accident Case

Posted in Back Injuries, Neck Injuries

Charles Bacon, a 23 year old mechanical engineer, was driving in Manhattan on August 17, 2007 when he was stopped at a red light and his car was struck in the rear.

A week later, Bacon sought treatment with an orthopedic surgeon for complaints of neck and back pain. MRI reports later showed herniated discs at C4-5, T9-10 and L5-S1.

Bacon sued the other driver, liability was resolved in his favor and a damages only trial was held in October, 2010. The jury heard testimony from treating and expert physicians for both sides (as well as plaintiff’s physical therapist) and then rendered a pain and suffering damages verdict in plaintiff’s favor in the sum of $850,000 ($100,000 past – 3 years, $750,000 future – 10 years).

Apparently, the jurors were impressed with Bacon’s inability to resume competitive mountain biking, his continuing complaints of pain and disability and the testimony of his medical care providers that he had sustained significant losses of range of motion in his neck and back.

Members of Bacon’s Overlook Mountain Bike Team

After trial, the defense sought to have the case dismissed but the trial judge declined; he did, though issue a post-trial order reducing the amount of damages to $450,000.

The defense contended that the case should have been dismissed by the trial judge despite the verdict because:

  • the accident was minor with very little damage to the cars and Bacon didn’t seek medical treatment until a week after the accident
  • plaintiff was out of work for only five days, resumed his usual activities quickly, had not undergone significant medical treatment and would not require surgery
  • there was only one herniated disc (in the back), it pre-dated the accident and was consistent with someone who, like plaintiff, had been an avid mountain biker for the prior nine years

In Bacon v. Bostany (2d Dept. 2013),  the court agreed with the defense in reversing and dismissing the entire case. It did so because the testimony “did not fulfill the objective evidence requirement” under the cases interpreting Insurance Law Section 5102 [see below] since there was no explanation as to what objective tests were used to determine Bacon indeed had significant limitations in the range of motion in his spine.

This case illustrates the difficulty facing plaintiffs with spinal injuries who sue to recover pain and suffering damages in New York courts.

Their problem, apart from their injuries, is that Insurance Law Section 5104 limits their right to recover damages to those cases involving “serious injuries.”

The definition of “serious injury” is set forth in Insurance Law Section 5102 (d), as follows:

  • “Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Eric Turkewitz has discussed this statute and its ramifications at New York Personal Injury Law Blog: “This significant restriction on bringing suit was a trade-off for the guaranteed health benefits of the No-Fault Law that started in 1973 and was amended in 1977 to the present formulation.” Others discuss this here (Huntington attorney Carol Schlittt) and here (Buffalo attorney Roy Mura).

Turkewitz suggests that the law can work in the counter-productive manner of encouraging people to stay home and not work. He notes that a fractured pinky that heals in a few weeks would qualify as “serious” under the law, but soft tissue back pain that lasts for years might not, especially if objective results don’t turn up on radiological studies or the physician does a poor job documenting the injury and the specifics of the limitations.

Inside Information:

  • As indicated, the so-called “Threshold Law” applies only to car accident cases in New York. Had this verdict been in a construction or slip and fall accident case, the verdict would have been upheld since the grounds relied upon by the appellate court in its decision dismissing the case would’ve been inapplicable.