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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Verdict Affirmed in Favor of Child Hit by Car While She Was Crossing Street

Posted in Ankle Injuries, Leg Injuries

Mchele Daniel was eight years old on June 11, 2005 when she tried to cross MacDonough Street in Brooklyn and was struck by a car sustaining serious leg injuries. Her mother, Marilyn Davis, sued the driver and owner and on May 20, 2013, a Kings County jury apportioned liability 65% to the driver and 35% to Mchele.

MacDonough Street in Brooklyn (345x170)

The Accident Site – MacDonough Street in Brooklyn

The jury also addressed damages awarding $700,000 for plaintiff’s pain and suffering ($500,000 past – eight years, $200,000 future – 60 years) and $50,000 for future medical expenses.

The defendants appealed claiming there was no basis for any finding of liability on the driver’s part and that the jurors engaged in unpermitted speculation as to the future medical expense award. In Daniel v. Thomas (2d Dept. 2015), the appellate court rejected the defendants’ arguments and affirmed the trial court’s post-trial decision upholding both the liability determination and the medical expense award.

The $700,000 award for plaintiff’s pain and suffering was not challenged and therefore the injuries were not discussed in the court’s decision. Here are the injury details:

  • open fracture, right tibia
  • five day hospital admission
  • closed reduction with application of external fixator for 12 weeks, hard cast for several weeks thereafter
  • 12 weeks physical therapy
  • scars of about five inches long each mid-tibia and ankle
  • malunion and valgus deformity of distal tibia causing antalgic gait
  • “inevitable” future post-traumatic progressive arthritis

 

The only medical testimony at trial was from plaintiff’s expert orthopedic surgeon, Jeffrey Kaplan, M.D. who stated that plaintiff’s injuries are permanent and that her future surgical options are:

  1. “to try to realign the joint by cutting the bone or re-breaking the two bones [tibia and fibula] surgically and doing another surgery to strengthen the bone using an external fixator again” or
  2. fusing the ankle joint together so the two bones are one solid bone … and no motion in the ankle joint” but “less pain in the ankle associated with motion.”

Dr. Kaplan testified that the cost of the future surgery would be “about $75,000 to $100,000.” The defendants argued on appeal that the jury’s award of only $50,000 for future medical expenses was speculative, without any basis in the evidence and therefore it should be vacated. The argument was that if the jury found Dr. Kaplan’s $75,000-$100,000 estimate to  be without merit then it could and  should have rejected the medical expense claim entirely but it had no power to modify it downward. That argument was rejected by the appellate court.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering damages in the sum of $800,000; he did not suggest an amount for the future
  • Plaintiff’s medical expert first saw her more than five years after the accident.

Subway Track Worker’s Fall Leads to Substantial Knee Injury Pain and Suffering Award

Posted in Knee Injuries

On March 29, 2009, Blanca Soltero was injured when she fell from a slippery two foot high ledge in a subway tunnel while working as part of a team of  New York City Transit Authority track workers who were replacing old tracks.

track workers

Claiming significant knee injuries, Ms. Soltero sued the City of New York, the owner of the subway tracks. Her motion for summary judgment  under Labor Law 240 was granted and affirmed on appeal.

In the ensuing damages trial, on July 20, 2012, the Bronx County jury awarded plaintiff pain and suffering damages in the sum of $508,000 ($108,000 past – 3 1/2 years, $400,000 future – 21 years). She was also awarded lost earnings damages in the sum of $1,234,000 ($246,000 past, $988,000 future – 21 years).

Both parties made post-trial motions seeking modifications of the amounts of the damages awards:

  • plaintiff argued that (a) the pain and suffering awards were inadequate and (b) the future loss of earnings award was also inadequate
  • defendant argued that (a) the pain and suffering awards were fair and reasonable and thus should not be increased and (b) the loss of earnings awards were excessive.

The trial judge, Alison Y. Tuitt, ordered an increase in the pain and suffering awards to $1,125,000 ($375,000 past, $750,000 future) and declined to disturb the awards for loss of earnings.

As set forth in Judge Tuitt’s post-trial decision, plaintiff’s right knee injuries included several torn ligaments (anterior cruciate, medical collateral and posterior collateral) as well as tears of her meniscus. She was 32 years old on the date of the accident and over the next two years underwent four surgeries:

  1. on 8/7/09 – anterior cruciate ligament (ACL) reconstruction with tibialis anterior allograft, lateral meniscus repair, partial medial meniscectomy
  2. on 5/3/10 – arthroscopy, chondroplasty lateral compartment, removal of painful hardware, partial medial meniscectomy
  3. on 1/21/11 – arthroscopy, partial lateral meniscectomy, chondroplasty and removal of loose chondral body
  4. on 9/26/11 – arthroscopy, patellofemoral chondroplasty, microfracture lateral femoral condyle, grade IV chondral defect, and open tibial tubercle osteotomy/anterior medialization
ACL Reconstruction

ACL Reconstruction

Plaintiff’s orthopedic surgeon, Laith Jazrawi, M.D., testified that her knee was already arthritic and would get worse, she will have permanent pain, discomfort and reduced range of motion, will never be able to return to work as as trackworker and will require two total knee replacement surgeries in the future. There was no medical testimony for the defense.

The defendant consented to the increased pain and suffering awards but appealed claiming that  (a) the past loss of earnings award was excessive and should be reduced by $51,000 (based upon calculations of plaintiff’s expert and the amount asked for by plaintiff’s attorney is his closing argument) and (b) the rate of interest to be paid on the judgment should be reduced from 9% to 3% as set forth in Public Authorities Law Section 1212(6).

In Soltero v. City of New York (1st Dept. 2015), the appellate court (a) rejected the defendant’s argument as to past loss of earnings holding that there was sufficient evidence at trial for the jury’s award and (b) agreed with the defendant that 3% is the proper judgment interest rate in this case because a public authority (New York City Transit Authority) is the real party interest, is bound to indemnify the City pursuant to a lease and will ultimately pay the judgment.

Inside Information:

  • Plaintiff was also awarded $258,000 for future medical expenses (21 years) and the parties stipulated to $75,000 for past medical expenses (the amount paid by plaintiff’s workers compensation carrier).
  • Although two years before the trial (and a second time one year before trial), defendant had plaintiff examined by an orthopedic surgeon, no expert witness disclosure was made until the eve of trial and the defendant was therefore precluded from calling the expert (a new orthopedic surgeon) to testify at the trial.

Spinal Injury Award Affirmed on Appeal

Posted in Neck Injuries

On November 9, 2009 Vincent Taurone was a front seat passenger in a minivan on the Saw Mill River Parkway in Chappaqua. After his vehicle stopped because of a deer carcass in the roadway, another car smashed into the rear of the minivan propelling it 35 feet forward.

Saw Mill River Parkway northbound at Readers Digest Road (exit 33) in Chappaqua. The Saw Mill indeed has a few traffic signals, as does quite a few other New York state parkways. If you look closer, these signals have backplates, which doesn't appear too often in the state.

Saw Mill River Parkway northbound at Readers Digest Road (exit 33) in Chappaqua.

Mr. Taurone, then 51 years old, had sustained prior traumatic incidents in which he’d injured his neck and, as a result, just 28 days before this accident he underwent major surgery – an anterior cervical discectomy and fusion at C5-6 and C6-7 with cortical bone implants and the insertion of a titanium plate and seven screws.

C5-6 and C6-7 Fusion

In Mr. Taurone’s ensuing lawsuit against the owner and operator of the other vehicle, defendants conceded liability and the trial was limited to the amount of damages only.

  • Plaintiff contended that the car crash caused significant new and aggravated injuries to his spine.
  • Defendants argued that (a) plaintiff’s new or aggravated injuries were not serious enough to meet the threshold under Insurance Law Section 5102 and (b) that the new/aggravated injuries were solely the result of plaintiff’s prior accidents or a fall out of bed that occurred eight days after the crash.

On May 31, 2013, the Westchester county jury found for the plaintiff and awarded him pain and suffering damages in the sum of $1,000,000 ($400,000 past –  3 1/2 years, $600,000 future – 15 years). Defendants appealed urging that the statutory threshold had not been met and therefore the judgment should be vacated. In Giardina v. Barasch (2d Dept. 2015), the appellate court rejected the defendants’ contentions and affirmed the judgment.

The court’s decision focused on the issue of defendants’ in-trial application for an adjournment so that a second physician could be brought in to rebut the testimony of plaintiff’s physicians. The trial judge initially granted the request but when the defense expert became unavailable the judge denied a second adjournment request. This, the appellate court ruled, was well within the trial judge’s discretion and not a reason to overturn the judgment.

The damages issues are nowhere addressed in the appellate court decision except to the extent of a statement that deemed defendants’ remaining contention “without merit.”

Following the accident, Mr. Taurone was admitted to the hospital for six days where he was immediately seen by the neurosurgeon, Thomas Lee, M.D., who had operated on him 28 days before. Dr. Lee testified that the car accident caused further injury to Mr. Taurone’s C-6 vertebrae and that as a result the plate and screw system he had installed weeks before had “pulled out on the bottom” and dislodged thus requiring new surgery on January 6, 2010:  removal of the prior instrumentation and a revision anterior cervical interbody fusion at C5-6 and C6-7.

Unfortunately, plaintiff’s spine deteriorated further – a result not unusual with the type of revision surgery he underwent – and a third surgery was required on August 21, 2012 – a complex posterior laminectomy at C4-5 and C5-6. This was done by Reza Yassari, M.D., who testified  that plaintiff had severe myelopathy and that his radiating pain was so bad that he couldn’t use one hand. The surgery he performed would not, he testified, stop the progressive deterioration of plaintiff’s spine but would slow it down.

 The defense case rested upon the testimony of radiologist David Fisher, M.D. who opined that there was neither a new nor an exacerbated injury to plaintiff’s spine as a result of the November 9, 2009 accident and in particular that the accident did not dislodge the previously implanted plate and screws. In summation, defendants’ attorney contended: “This is a moderate accident with someone who had a condition that existed before, existed at the time of the accident and went on and probably will go on into the future.”

Inside Information:

  • Defendants did not challenge the amount of damages on appeal except to the extent they argued (unsuccessfully) that there was insufficient proof to meet the statutory threshold under the Insurance Law.
  • Mr. Taurone suffered a heart attack and died on February 14, 2015 at the age of 56 years (the caption of the lawsuit was then changed to reflect the name of the executor of his estate).
  • Until 2006, Mr. Taurone worked as a limousine driver and a security guard. The prior injuries that necessitated Mr. Taurone’s surgery before this car accident were a 1989 motor vehicle incident and a 2006 assault. In each, he sustained neck injuries and lost time from work but neither required surgery until 2009.
  • In the 1989 accident, Mr. Taurone was working as a driver and bodyguard for the rock band Metallica. He and the band’s drummer got out of the limousine after the accident and they were in the roadway when another vehicle hit Mr. Taurone as he pushed the drummer away. Metallica
  • The jury also awarded plaintiff lost earnings damages in the sum of $275,000 ($95,000 past, $180,000 future – six years).

 

 

 

Loss of Parental Guidance Awards Reduced on Appeal of Major Wrongful Death Case

Posted in Wrongful Death

We discussed the nearly $15,000,000 damages award in the fatal motor vehicle crash case of 28 year old Jason M. Rhoades in an article published on December 3, 2013, here. As we predicted, the defendant appealed arguing that the loss of parental guidance awards were excessive and that the loss of inheritance awards were improper.

Last week, the appellate court ruled in Grevelding v. State of New York  (4th Dept. 2015) and held that the loss of parental guidance awards were excessive but that the loss of inheritance awards were reasonable and proper.

In addition, the court rejected the defendant’s argument that the entire damages award should have been reduced by an apportionment of some liability on the basis of decedent driver’s comparative fault.

The loss of parental guidance awards for the decedent’s son Luke (two years old at the time of his father’s death, 11 at trial) in the sum of $2,000,000 ($900,000 past – 9 years, $1,100,000 future – 7 years) were reduced by $600,000 and now stand at $1,400,000 ($500,000 past , $900,000 future).

The loss of parental guidance awards for the decedent’s daughter Amelia (two months old at the time of her father’s death, 9 at trial) in the sum of $2,200,000 ($900,000 past – 9 years, $1,300,000 future – 9 years) were reduced by $700,000 and now stand at $1,500,000 ($500,000 past, $1,000,000 future).

While the loss of parental guidance award reductions are significant, the modified awards remain among the highest allowed by the appellate courts in New York. The judges were apparently influenced by substantial testimony that Mr. Rhoades was by all accounts an exemplary father who came home every day at 5:30 p.m. and took over responsibility for his two young children and that he and his son were “inseparable.”

The $1,603,306 awards of damages for loss of inheritance were based upon expert testimony projecting (1) a savings rate of 2% of Rhoades’ income and (2) an investment growth rate of 8.2%.

The defense argued on appeal that the loss of inheritance awards should be vacated because they were duplicative of the $8,728,980 awarded to decedent’s spouse and children for their loss of his past and future income, support and household services. The court rejected that argument since it has long been held and is routinely explained to juries by trial judges that the monetary damages to a decedent’s distributees (here, his wife and two children) include both the portion of decedent’s earnings he would have spent in the future for their care and support and the amount if any that would have been inherited by them.

Inside Information:

  • Neither party appealed with regard to the issues of the amounts of damages awarded for pre-impact terror ($250,000) or loss of income, support and household services ($8,728,980).
  • Mr. Rhoades suffered the tragic death of both of his parents when he was 17 years old. Thereafter, he lived by himself in an apartment while he finished high school. Then, he completed a bachelor’s degree at Syracuse University in less than three years and an MBA at LeMoyne College in just one year, all while holding down jobs in the telecommunications industry.
  • The issue of damages in the wrongful death case of Gardner v. State of New York, involving another fatal motor vehicle crash at the same site just 36 hours after this accident  (about which we also wrote in our December 3, 2013 article), is the subject of an appeal set for oral argument in the 4th Department on December 7, 2015.

 

 

Modest Award Affirmed for Woman Claiming Significant Traumatic Brain Injury

Posted in Brain Injuries

On December 9, 2008 Karen Lariviere was crossing a street in Brooklyn when she was struck on the side of her head by the side view mirror of a city bus making a turn.

bus mirror

In her ensuing lawsuit against the transit authority, Ms. Lariviere was granted summary judgment on liability and in 2011 the trial judge’s decision was affirmed. The case then proceeded to a trial on damages only in 2012.

At the damages trial, plaintiff claimed she sustained significant traumatic brain injuries from the bus accident whereas the defendant claimed plaintiff’s injuries were minor and had resolved and that any current symptoms were exaggerated and/or pre-existing.

Ms. Lariviere, 39 years old at the time of the accident, testified that the impact felt  kind of “like a two ton baseball slapping me right up side my head.”

The Kings County jury returned a pain and suffering verdict in the sum of $60,000 ($40,000 past – three years, $20,000 future – 10 years). That verdict has now been affirmed in  Lariviere v. New York City Transit Authority (2d Dept. 2015).

Here are the injury details:

  • After sitting on the curb with an ice pack applied to a bruise on her head, Ms. Lariviere was taken from the scene by ambulance to the local hospital where she complained of head pain, a CT scan was negative and she was diagnosed with a mild concussion and advised to rest at home.
  • At home, she began suffering constant headaches, migraines that she claimed kept her confined to her bed with persistent nausea, vomiting, dizziness, vertigo and sensitivity to light.
  • Seizure four months after the accident that landed her in the hospital for four days.
  • Unable to return to work as a hostess in a restaurant.
  • Recurrent attacks similar to the seizure, 1-2 times a week.
  • Daily activities curtailed with significant cognitive deficits that left reclusive.

Plaintiff’s medical experts (including neurologists, a neuroradiologist and a neuropsychologist – among them here is the testimony of neurologist Irving Friedman, M.D.) contended that all of her symptoms are permanent, were caused by the accident trauma, she has significant post-traumatic stress disorder (PTSD), a significant traumatic brain injury (TBI) with substantial cognitive deficits and a seizure disorder, she will never be able to be employed again in any capacity and she will need lifelong medical and rehabilitative care, in addition to household assistance.

Defendant countered with its own medical experts, in similar fields (among them here is the testimony of neurologist Robert April, M.D.), who contended that plaintiff was exaggerating her symptoms, was not suffering from any seizure-related disorders, did not respond truthfully to neuropsycholgical testing and had not sustained even a moderate or mild brain injury. In summation, defense counsel suggested that plaintiff’s history indicated she was emotionally fragile, prone to bouts of anxiety and depression and that the relatively minor trauma from the accident had caused pseudo spasms that mimicked seizures.

Inside Information:

  • Before the accident, plaintiff had worked for years as a restaurant hostess but failed to file income tax returns until after the accident, a move defense counsel called a transparent attempt to document an expected claim for lost earnings.
  • The appellate court agreed with plaintiff’s counsel on appeal regarding the many improper and and inflammatory remarks made by defense counsel in her summation but the judges concluded they were not unfair or prejudicial enough to warrant a new trial. Here is a copy of the trial transcript of defense counsel’s summation.

Verdict Affirmed in Hip and Knee Injury Case

Posted in Hip and Pelvis Injuries, Knee Injuries

On November 20, 1997, John Konvalin was a passenger on a Queens-bound subway train that collided into a train in front of it. The crash caused him to be thrown to the floor and fellow passengers to fall on top of him. Mr. Konvalin and the others were evacuated through the tunnel.

Subway Crash

The New York Times reported that 87 people were injured, among them Mr. Konvalin who, in pain, limped through the tunnel and was taken to the hospital where he was treated for a bruised left knee.

Normal Knee Anatomy

Normal Knee Anatomy

In his ensuing lawsuit against the transit authority, liability was conceded but plaintiff, a 58 year old salesman, ended up with serious hip and knee injuries and underwent extensive treatment that, in part, delayed the trial until 2012. The jury awarded pain and suffering damages in the sum of $450,000 (all for the 12 year period from the date of the accident to the date of the verdict, nothing for future damages).

In Konvalin v. New York City Transit Authority (Appellate Term, 2nd Department 2015), the award has been affirmed.

The court’s decision gives no information as to the injuries except to state that plaintiff underwent “several surgeries.” Here, then, are the injury details:

  • Left hip pain caused by repetitive stress from a gait that was altered because of knee pain resulting in joint deterioration and arthritic pain requiring total hip replacement surgery in January 2005
  • Left knee patella contusion resulting in chondromalacia, complex tears of the lateral meniscus and post-traumatic arthritis requiring two surgeries (arthroscopic meniscal repair in August 2005 and total knee replacement in 2009)
  • Extensive physical therapy regimens before and after all surgeries

replaced_hip_w

Plaintiff conceded that he made an excellent recovery from his injuries and did not challenge the jury’s failure to award any damages for future pain and suffering.

The defendant argued that the pain and suffering award was excessive based upon the facts that plaintiff had pre-existing arthritis in his hip, there was no record of any complaint about hip pain for at least two years after the accident and that the subway crash merely sped up by no more than four years his need for the surgery he underwent in 2005.

As to the knee, the defense argued that a 1998 MRI did not show a meniscal tear and a patella contusion would not “spread” arthritic changes to the remainder of the knee joint  and that therefore both knee surgeries were unrelated to the accident.

Inside Information:

  • Plaintiff also had pre-existing arthritis in his right hip, unrelated to the accident, that required total hip replacement surgery in 2008.
  • Plaintiff’s treating surgeons did not testify at trial; instead, he produced an expert who first examined plaintiff in 2009 (more than 10 years after the accident).

Large Damages Verdict Modified for Boy with Massive Injuries from Bicycle Accident

Posted in Brain Injuries

On December 5, 2004, Anthony Turturro was riding his bicycle on Gerritsen Avenue in Brooklyn when he was struck by a car speeding at about 55 miles per hour in a 30 m.p.h. zone. Anthony, then 12 years old, hit the passenger side of the vehicle and was then thrown into the air landing in the roadway directly on his head.

Photo of Bicycle

Anthony’s Bicycle at the Scene

On his behalf, Anthony’s mother sued Louis and Beatrice Pascarella (the vehicle driver and owner) as well as the City of New York (claiming that it was negligent in failing to perform proper and adequate studies of a long-standing speeding problem on Gerritsen Avenue which it knew about and with respect to which it failed to timely implement a specific plan to control or resolve).

On May 26, 2011, after a three week trial, a Kings County jury found that all parties were at fault for the accident and they apportioned liability as follows: the City (40%), Mr. Pascarella (50%) and Anthony (10%).

The jurors then awarded pain and suffering damages in the sum of $21,000,000 ($6,000,000 past – seven years, $15,000,000 future – 54 years) as well as medical expenses ($600,000 past, $11,500,000 future), future loss of earnings – 36 years ($3,000,000) and loss of Anthony’s services to his mother ($75,000).

The trial judge ordered a reduction of the damages for (a) future pain and suffering from $15,000,000 to $10,000,000 and (b) future medical expenses from $11,500,000 to $7,000,000. Plaintiff consented to the reductions but defendants appealed both on liability and damages grounds.

On appeal, in Turturro v. City of New York  (2d Dept. 2015), the pain and suffering damages have been further reduced and now stand at $10,000,000 ($3,000,000 past, $7,000,000 future). The appellate court did not modify the $7,600,000 for medical expenses or the $3,000,000 for loss of earnings.

As indicated in the court’s decision, Anthony sustained severe traumatic brain injuries as well as orthopedic and other injuries leaving him with very significant permanent deficits. Here are the injury details:

  • hospitalized until 12/28/04; then transferred to a rehabilitation hospital for one year and seven months; comatose four months
  • extensive skull fractures, including the bones within the skull supporting the brain, the frontal bone, the face and cheek bones, the forehead and the petrous bone
  • subdural hematomas requiring surgical evacuation
  • diffuse axonal injury throughout the brain tissue
  • extensive swelling of brain tissue requiring a craniotomy to remove of a piece of the skull (that was placed into the abdomen)
  • encephalomalacia (development of scar tissue) in the frontal and temporal lobes
  • hydrocephalus requiring insertion of a shunt running from inside the brain to the abdomen hydrocephalus
  • development of seizure disorder requiring permanent medication
  • severe impairments of speech and hands
  • orthopedic injuries including left ankle fractures, right knee flexion contracture requiring an arthrotomy and right hip ossification requiring surgery
  • several additional surgical procedures including attempted larynx repair, tracheostomy, placement of a feeding tube and insertion of a Greenfield filter (to prevent blood clots)
  • requires supervision to prevent choking due to inability to sense food or saliva in his mouth resulting from right facial weakness
  • requires service dog for companionship and to help with spastic gait causing limited mobility
  • requires assistance for many activities of daily living

Inside Information:

  • The city made a $3,500,000 settlement offer during the trial (and the Pascarellas offered their liability policy limits of $50,000) that was rejected by Anthony’s parents after  Anthony’s father was questioned to make sure he understood the danger of rejecting it. The judge told him that if the jury were to come back with a finding of no negligence against Anthony he would probably “do something about it” – meaning he believed Anthony was at least partially at fault.
  • In summations, the City suggested that if a pain and suffering award were to be made it should be about $300,00 for the past and $700,000 for the future while plaintiff suggested ranges: $5,000,000 to $10,000,000 for the past and $10,000,000 to $15,000,000 for the future.
  • The loss of earnings and future medical expense awards were supported by testimony from Richard Schuster, Ph.D., plaintiff’s expert in vocational assessments and life care planning costs.
  • The defendants did not call any witnesses to testify on the issue of damages.
  • The $75,000 loss of services award to Anthony’s mother was vacated by the appellate court because, while he clearly could perform no services such as household chores, there was no testimony about any services Anthony actually performed for her before the accident.
  • Under CPLR Section 1601, the City is exposed to only 44.44% of the pain and suffering damages while it remains jointly and severally liable for all of the economic damages.
  • The City is seeking leave to appeal the liability issues to the Court of Appeals.

Spinal Injury Pain and Suffering Verdict Affirmed

Posted in Back Injuries, Neck Injuries

On February 6, 2008, livery taxicab driver Alfonso Robles was involved in a crash with another car in Port Chester. He ended up in the hospital emergency room and in his ensuing lawsuit commenced on May 21, 2009 against the other driver and vehicle owner, on January 24, 2012, a Westchester County jury apportioned liability at 65% on the defendant driver and 35% on Robles.

The same jury then considered damages in a separate trial. They found that plaintiff’s injuries merited a pain and suffering award of $800,000 ($400,000 past – four years, $400,000 future – 37 years). Plaintiff’s motion seeking an increase in damages was denied by the trial judge in a post-trial decision on July 20, 2012.

On appeal in Robles v. Polytemp, Inc. (2nd Dept. 2015), the award has been affirmed.

As set forth in the appellate court decision, plaintiff, 37 years old at the time of his accident, sustained disc herniations requiring both cervical and lumbar spinal fusion surgeries.

Cervical fusion post-op image:

cervical fusion4

Here are the injury details:

  • Herniated discs at C4-5, C5-6 and C6-7 with radiculopathy
  • Surgery #1 on 3/31/09: two level cervical discectomy and fusion with six screws and a titanium plate inserted
  • Herniated discs at L4-5 and L5-S1 with radiculopathy
  • Surgery #2 on 8/18/09: two level lumbar fusion and laminectomy at L4-5 and L5-S1 with six screws and and a rod screw construct
  • Continuing and permanent spinal pain and radiculopathy requiring narcotic pain medication and leaving plaintiff with weakness of both arms and legs
  • Unable to work as a vehicle driver, unable to bend or carry
  • Unable to return at all to activities previously enjoyed such as dancing, running and soccer

Cervical radiculopathy – pain and other symptoms from the irritation of cervical spine nerves – can affect various parts of the neck, shoulders and upper extremities:

cervical radiculopathy

The jury determined, as set forth in its verdict sheet, that plaintiff failed to use an available seatbelt and that his recovery should therefore be reduced by $200,000. New York law that provides that non-use of an available seat belt, and expert testimony in regard thereto, is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. Plaintiff argued successfully on appeal that the $200,000 reduction was improper because there was insufficient (expert) proof that plaintiff’s use of a seatbelt would have mitigated his damages.

Inside Information:

  • In closing arguments, plaintiff’s counsel  asked the jurors to award his client $5,000,000 for pain and suffering. Defense counsel argued that plaintiff should be awarded nothing at all because he had pre-existing degenerative discs in his spine, the impact between the cars was minimal and could not have caused the injuries claimed and that any injuries at all were due to non-use of a seatbelt.
  • It appears that the jurors discounted plaintiff’s second surgery (lumbar fusion) and agreed with the testimony of defense expert orthopedic surgeon Robert Israel, M.D., who stated that there was no casual connection between the accident and that surgery and that plaintiff could return to work without restrictions. Spinal surgeon Sebastian Lattuga, M.D., testified for the plaintiff.
  • The trial was hard fought on both sides with veteran trial lawyers Nick Gjelaj for the plaintiff and Sim R. Shapiro for the defendants.

 

 

Trip and Fall Verdict for Non-Surgical Orthopedic Injuries Affirmed

Posted in Ankle Injuries, Wrist Injuries

On December 24, 2007, at about 5 p.m., Anabell Rivera was on her way to her twin sister’s home in Jersey City to celebrate Christmas and their 50th birthdays.

As Ms. Rivera was walking down a staircase at the Port Authority Bus Terminal in Manhattan, she tripped and fell sustaining injuries to her right wrist and left ankle.

In her ensuing lawsuit, Ms. Rivera claimed that a missing section of the steps caused her to fall.  On August 13, 2013, the Bronx County jury agreed, finding that the staircase was not reasonably safe and further that Ms. Rivera was not at all comparatively at fault.

The jurors then determined that plaintiff was entitled to a pain and suffering damages award in the sum of $413,000 ($206,500 past – six years, $206,500 future – 27 years).

In Rivera v. Port Authority of New York and New Jersey  (1st Dept. 2015), both the liability and damages verdicts have been affirmed.

The appellate court’s decision addressed the trial judge’s rulings and jury instructions regarding certain issues as to witnesses and evidence.  It also addressed the defendant’s contention that the damages awards were excessive stating that the defendant’s arguments are unavailing.

Here are the details as to plaintiff’s injuries:

  • Ambulance to the local hospital where she was treated and released from the emergency room with diagnoses of (1) a non-displaced fracture of the right radial head of her wrist and (2) no ankle fracture.
  • Unable to return to work for two weeks (plaintiff was an eligibility specialist at the city’s Human Resources Administration).
  • Right Wrist – comminuted fracture of the distal radius.
  • Left Anklesubchondral fracture of the medial malleolus, tear of the posterior talo-fibular ligament.

distal radius fractures

As of the trial date, plaintiff had not undergone any surgery related to her injuries; however, there was a dispute as to whether she’d need any surgery in the future.

Plaintiff’s orthopedic expert testified that (a) as to her wrist, recent x-rays indicate the presence of post-traumatic arthritis, plaintiff had loss of range of motion and diminished grip strength and she needs arthoplasty with neurolysis of the medial nerve and (b) as to her ankle, an MRI taken a year after the accident revealed the fracture and she needs arthroscopic surgery.

Carpal Tunnel Anatomy

To the contrary, defendant’s expert testified that based upon his examination of plaintiff in 2010 and his review of radiological studies (a) plaintiff’s wrist was clinically healed and surgery was not needed and (b) there was no ankle fracture caused by the accident in view of the negative x-ray and the absence of any joint swelling on the date of the accident, even if the MRI demonstrates a fracture it was indeterminate as to when it occurred and, in any event, he found no impairment or disability in his examination two years post-accident.

Inside Information:

  • Ms. Rivera had fractured her right radius in 1999 requiring surgery that left her with a permanent metal plate and discomfort.
  • The $37,000 awarded for future medical expenses was based upon testimony that plaintiff’s wrist surgery would cost $20,000 and her ankle surgery $17,000.

Hip Injury Award Affirmed on Appeal

Posted in Hip and Pelvis Injuries

On January 24, 2009, Garo Kahvejian, a 48 year old jewelry store owner, sustained an injury to his hip when he was driving through the intersection at South Airmont Road and Campbell Avenue in Airmont (Rockland County) and his car was struck by a driver making a left turn.

The Scene of the Accident:

After two days of trial in the ensuing lawsuit, the judge directed a verdict as to liability ruling that the defendant was fully at fault. The Rockland County jury then heard testimony as to plaintiff’s injuries and on October 14, 2011 awarded pain and suffering damages in the sum of $800,000 ($50,000 past – 2 3/4 years, $750,000 future – 20 years).

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Anatomy of the Hip and Pelvis

The trial judge ordered a reduction of the future damages award to $375,000 and then the defendant appealed claiming that plaintiff’s claims should have been dismissed entirely because his injuries did not meet the serious injury threshold under Insurance Law Section 5102:

“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.

Alternatively, defendant argued that the reduced total of $425,000 was excessive.

In Kahvejian v. Pardo (2d Dept. 2015), the defendant’s arguments as to the threshold were deemed without merit and the $425,000 pain and suffering award was affirmed.

As set forth in the court’s decision, Mr. Kahjevian’s first medical treatment following his accident was two weeks later when, after persistent hip pain, he made an appointment with an orthopedic surgeon. He was ultimately diagnosed with an early stage of avascular necrosis when MRI film three months later showed a loss of blood supply to the hip.

hip_avn_intro01

According to his doctor, plaintiff’s condition results in portions of dead bone in the hip for which there are two types of surgery – one involves drilling a hole in the bone and irrigating it with blood (which the doctor testified is only 40% successful), the other is a total hip replacement (which the doctor recommended but plaintiff hadn’t yet undergone).

 

 

 

 

 

Here are the injury details:

  • used either a cane or crutches for seven weeks; at trial he walked with a limp
  • persistent and permanent hip pain
  • significant loss of range of motion
  • unable to return at all to activities he’d enjoyed daily for 30 years such as martial arts, cycling and running
  • unable to play with his teenage children
  • unable stand for more than 45 minutes or sit for long periods
  • forced to sleep on first floor couch four nights a week due to inability to climb stairs to second floor bedroom
  • post-traumatic hip arthritis

Inside Information:

  • Plaintiff testified that despite being in severe pain at the scene of the crash, he declined medical treatment because he was driving home from his jewelry store and had in his possession valuable diamonds and was concerned for their security.
  • There was no loss of earnings claim.
  • Plaintiff treated with his orthopedic surgeon only five times (four in 2009 and once in May 2011 shortly before trial).
  • Plaintiff’s pre-trial settlement demand was $100,000 with no offer from the defendant.