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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

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.

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.




State of New York Liable for Damages in Two Cases involving Roadway Fatalities

Posted in Wrongful Death

On January 23, 2004, Jason Rhoades sustained fatal injuries when the vehicle he was driving slid across the roadway over a bridge on Interstate 81 in Syracuse, struck a snowbank packed against the concrete barrier guard at the edge of the bridge, and his car vaulted off the bridge to the road below.

Thirty-six hours later, William Gardner also sustained fatal injuries when he drove along the same roadway, struck the same barrier, vaulted over the snow-covered concrete barrier and fell to the street below.

Scene from Trial Exhibit

Jason Rhoades was married to Isabelle Rhoades and the father of their two young children (two year old Luke and two month old Isabella) when he died at the age of 28. He had been elected East Syracuse mayor at the age of 24 and was a director of communications products and information technology at Cornell University earning $142,424 a year.

William Gardner was married for 14 years to Cynthia Gardner before they divorced in 2000.  He was the father of their two children (19 year old Brandon and 15 year old Ryan) when he died at the age of 50. He had served in the United States Air Force for 25 years attached to the space program before retiring in 2001 as a full colonel. Then, he worked as a project manager in space technology at Jet Propulsion Laboratory at California Institute of technology in Pasadena, California earning $155,584 a year (plus an Air Force pension of $45,454 a year).

Each of the families asserted claims against the State for personal injuries and economic damages for wrongful death. In both matters, the Court of Claims judge in Syracuse (Diane L. Fitzpatrick) found that the State was not liable for these single car accidents and she dismissed the lawsuits after trial; however in each case, the judge’s decision on liability was reversed by the appellate court.

In both Grevelding v. State of New York (4th Dept. 2012) [Peter Grevelding is the named claimant as he was the executor of the estate of Mr. Rhoades, his nephew] and Gardner v. State of New York (4th Dept. 2010), liability against the State was imposed by the appellate court because the State, by its plowing methods, created the snowbank which constituted a dangerous condition and was a substantial cause of the accident.

New trials were ordered to determine the amount of damages. The damages trials were held in 2012 and 2013 and the judge’s decisions in each of those damages trials have now been handed up.

In the decision following the damages trial in Grevelding (Court of Claims 9/30/13), damages were awarded in the total sum of $14,797,888 and in the decision following the damages trial in Gardner (Court of Claims 11/19/12), damages were awarded in the total sum of $3,569,985. Both cases are still pending, with collateral source and so-called Article 50-B hearings required and appeals expected from all parties.

Each of the cases involved substantial economic damages (as well as claims for pre-death personal injury and loss of parental guidance).

In Grevelding, the economic damages were $10,347,888, as follows:

  • Funeral Expenses – $15,602
  • Loss of Income, Support and Household Services – $8,728,980
  • Loss of Inheritance – $1,603,306

In Gardner, the economic damages were $2,494,985, as follows:

  • Funeral Expenses – $6,985
  • Loss of Financial Support – $1,122,500
  • Loss of Inheritance – $1,365,500

The pre-death personal injury claims in each case were hard fought and involved gruesome evidence.

In Grevelding, the judge awarded $250,000 for pre-impact terror based on testimony from witnesses and several experts for both sides, including the county coroner who examined Mr. Rhoades. He opined that Mr. Rhoades lived for one to two minutes struggling to breathe after the impact fractured his neck and  before he died in his vehicle due to asphyxiation. Dr. Michael Baden, world renowned formed New York City Medical Examiner, testified for the defense. He agreed with claimant’s position that the cause of death was multiple blunt force trauma however he contended that Mr. Rhoades did not asphyxiate but was rendered immediately unconscious from the injuries to his brain and lungs.

The judge declined to make an award for pre-death physical pain and suffering finding that although Mr. Rhoades may have lived, breathing and heart beating for a moment or two after impact, there is “no direct  or circumstantial evidence that he was conscious.” Nonetheless, she awarded the $250,000 for pre-impact terror based on her inference that Mr. Rhoades, “as he approached the top of the snowbank without stopping,” likely endured “more than two seconds” of acute fear of death or serious harm.

In Gardner, the judge also awarded $250,000 for pre-impact terror. She based the award on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and fall to the street below. The judge concluded that “several seconds” transpired from the moment Col. Gardner’s car hit the median barrier, left the bridge railing and landed on the street below. In this case, too, the 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.”

The parental loss of guidance awards were substantial in both cases and involved poignant testimony about the relationships between and among the deceased fathers and their children.

In Grevelding, the judge awarded $2,000,000 ($900,000 past – 9 years, $1,100,000 future -  7 years) for Luke (11 years old at trial) plus $2,200,000 ($900,000 past – 9 years, $1,300,000 future -  9 years) for Amelia (2 years old at trial). These awards were based upon the testimony of several witnesses who described Mr. Rhoades’ “enveloping love for his children and daily involvement in their care and development,” as well as the expert testimony from a psychologist with a doctorate in human development and family studies who discussed the impact of the loss of a father on his children.

In Gardner, the judge awarded $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) plus $475,000 ($425,000 past – 9 years, $50,000 future 3 years) for Ryan (24 years old at trial). These awards were based upon the testimony of the sons about how involved and supportive Col. Gardner was in their lives as well as testimony from their mother and several of Col. Gardner’s friends. The 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.

Inside Information:

  • So-called loss of parental guidance damages are deemed recoverable in New York by virtue of Estates, Powers and Trusts Law Section 5-4.3. While the statute merely refers to “pecuniary injuries resulting from the decedent’s death,” the courts have for more than one hundred years held that the word “pecuniary” includes injuries arising to children from the loss of a parent, who owes them a duty of nurture, and of intellectual, moral and physical training.
  • In Gardner, the defense urged a modest award, if any, for loss of parental guidance, contending that “Brandon and Ryan had already substantially received the benefit of their father’s advice and guidance before he died, during the most important formative years of their development.”



Knee Injury Verdict Reinstated

Posted in Knee Injuries

On October 25, 2008, Betty Luna boarded a city bus at Archer Avenue and Southern Boulevard in Queens. She paid the fare, began walking back to get a seat holding on to the pole and then she fell to the floor onto her right knee when the bus suddenly accelerated and pulled away from the stop.

The 47 year old Dr. Luna (a pediatrician then working in a Bronx child care clinic) was in excruciating pain. She remained on the bus floor for several minutes. Helped to a seat by fellow passengers, she continued on to her destination in the Bronx, hobbled home, iced her knee overnight and took a taxi to the local emergency room in the morning. She was diagnosed with a severely torn meniscus.

Dr. Luna sued the transit authority claiming that the bus driver negligently caused her to fall by suddenly, violently and without warning accelerating the bus.

After a seven day trial in the Bronx, the jurors agreed and on May 3, 2012 returned a verdict awarding Dr. Luna $1,000,000 for her pain and suffering damages ($500,000 past – 3.5 years, $500,000 future – 34 years).

In a post-trial motion, the transit authority argued, successfully, that the damages award was excessive and the trial judge ordered a reduction of the pain and suffering award to $350,000 ($100,000 past, $250,000 future).

Plaintiff, not surprisingly, appealed contending that the trial judge’s reduction was drastic and totally unwarranted; furthermore, plaintiff urged the appellate court to order an increase in the future pain and suffering damages award to at least $700,000.

Now, in Luna v. New York City Transit Authority (1st Dept. 2013), the $1,000,000 jury award for plaintiff’s pain and suffering has been reinstated. [The decision erroneously states that it was 7 years and 7 months from the date of the accident to the date of the verdict - it was 3 years and 6 months.]

As set forth in the court’s decision, as a result of the accident, Dr. Luna’s torn meniscus required arthroscopic surgery (six weeks after she fell). During her surgery, a large portion of plaintiff’s right lateral meniscus was removed, leaving no cartilage in that area – “bone on bone” as one of her doctors described it.

Dr. Luna was unable to work for three months, continues to experience significant pain and it is “most probable” that she will require a future knee replacement.


Inside Information:

  • The defense conceded, and the trial judge charged the jury, that the bus driver should be found negligent if indeed he suddenly, unusually and violently accelerated; however, it was claimed, unsuccessfully, that Dr. Luna fell because it was pouring rain at the time and that she fell because of a wet, slippery floor on the bus (for which there would be no liability in this case).
  • Plaintiff explained why she didn’t seek medical treatment until the next day: “Well, I’m a physician. I didn’t see a bone sticking out. I wasn’t unconscious. I wasn’t bleeding. I was embarrassed and I wanted to go home.”
  • Plaintiff’s treating orthopedic surgeon, Stuart Hershon M.D., testified that it was “possible” she’d need a total knee replacement whereas her pain management doctor, Stuart Kahn, M.D., testified much more definitively – he said it’s “highly likely.”
  • The defense doctor, Julio Westerbrand, M.D., was board certified in orthopedic surgery but, due to his own medical condition, had to stop operating in 2004; he offered no opinion as to whether plaintiff will require additional surgery.
  • In closing, defense counsel charged that plaintiff attempted to “play the race card” because “they don’t feel comfortable in their case. They want to try and influence things that don’t matter to try to win.” This was in response to plaintiff’s testimony -  “the bus driver was a white person”, “there is prejudice” and “I am Hispanic minority” -  suggesting that “prejudice” was the reason the bus driver, knowing she fell and seeing her writhing in pain on the bus floor, had not stopped the bus or otherwise helped her by lowering the exit platform.

UPDATE: On April 3, 2014, the decision in this case was revised slightly. See, Luna v. New York City Transit Authority (1st. Dept 2014). The damages numbers stand but the period between the date of the accident and the date of the verdict was corrected (it was 3 years and 6 months, not 7 years and 7 months) and plaintiff’s doctor’s testimony as to her prognosis was corrected (he said it was “highly probable” she will require a future knee replacement not “most probable”).


Appellate Court Rules on Conscious Pain and Suffering Damages in Case Invovling Death at Scene of Bus Accident

Posted in Wrongful Death

Lourdes Fernandez was 68 years old on July 2, 2008 when, at about 1:30 p.m., she was crossing Madison Street near its intersection with Jackson Street in Manhattan. She was struck by a left turning bus and died at the scene.

The crowd at Madison and Jackson Streets, as the police investigate the incident.

Her son, Roberto Santana, as administrator of his mother’s estate, sued the bus driver (and the city’s transit authority as the owner of the bus) alleging that the driver was negligent because his mother was in the crosswalk, she was struck by the front of the bus and the driver admitted he never saw her. There was a big problem, though: no one, including the bus driver, saw Ms. Fernandez until her body was found on the street 35 feet west of the crosswalk.

At trial, engineering experts for both sides testified as well as a physician for the plaintiff.

The defendants’ expert opined that Ms. Fernandez fell or collapsed, hit her knee and slid underneath the right side of the bus before she was run over by the right wheel.

The plaintiff’s experts opined that Ms. Fernandez was struck in the crosswalk by the front of the bus, knocked to the ground and then rolled underneath the bus until she was fatally run over by a rear wheel of the bus.

The Manhattan jury believed the plaintiff’s experts and found the bus driver was fully at fault and there was no comparative negligence.

The jurors then awarded pre-death conscious pain and suffering damages in the sum of $750,000 broken down as follows:

  • $250,000 for fear of impending death, plus
  • $500,000 for physical injuries

Defendants appealed arguing (a) that the plaintiff’s expert testimony was speculative and could not form the basis for imposing liability and (b) the damage awards were excessive and lacked an adequate foundation. In Santana v. De Jesus (1st Dept. 2013), the finding of liability against the defendants has now been upheld; however, the damages award has been reduced to $375,000.

The damages award was also the subject of expert testimony – plaintiff’s expert physician, Howard Schwartz, M.D., an internist with a particular background in hospital risk management (who had testified as an expert 24 times concerning the reconstruction of how accidents occurred based on the injuries sustained) opined that 15-25 seconds passed from the moment Ms. Fernandez was aware of the bus coming at her to the moment of loss of consciousness and death.

Her open humerus (arm) fracture was the key evidence that established for the expert that Ms. Fernandez was struck by the front of the bus and that she was aware she was about to be hit. Dr. Schwartz said that the decedent reflexively extended her arm to try to protect herself from the bus during the seconds of pre-impact terror.

The doctor then opined that, after impact, Ms. Fernandez was rolling under the bus which ran over her right pelvis and chest, cracked her ribs, tore her aorta, fractured her spine and, finally, killed her when the wheel ran over and crushed her head.

The appellate court’s decision cites only one case involving pre-death pain and suffering damages – Segal v. City of New York (2d Dept. 2009) – a case we wrote about, here. In that case (from an appellate court widely thought of as one that is not as generous in its awards of pain and suffering damages), $350,000 was affirmed for 10 seconds of pre-impact terror and conscious pain and suffering before Ms. Segal was killed after a tree branch fell and struck her head.

Inside Information:

  • After impact, the bus driver continued on his route for 45 minutes – unaware he had even struck Ms. Fernandez – until he received a phone call from the transit authority command center instructing him to pull over immediately, discharge his passengers and wait for an investigation.
  • There was evidence that Ms. Fernandez had a seizure disorder, took Zoloft for anxiety and depression, had a car accident years earlier that left her with a shunt in her head and a prescription to use a cane to walk (which she decided not to use) and had been assigned a home care attendant who usually accompanied her on walks (but was off duty this fatal day). These facts, the defense contended, supported the theory that Ms. Fernandez simply collapsed while crossing the street and fell into the side of the bus.
  • The bus was equipped with cameras but no video of the incident was ever provided (the director of the city’s bus camera project testified that the system was not working properly and he was unable to retrieve the surveillance records).
  • The jurors also awarded $50,000 to Mr. Santana for his pecuniary loss (an amount that was not challenged on appeal).


Knee Injury Verdict Affirmed for 71 Year Old Retired Man

Posted in Knee Injuries

Bobby Simmons has been around. Born in Texas, he grew up in Oklahoma and moved to New York when he was 20 years old. He was a successful light heavyweight boxer for about six years, then he had all sorts of jobs – among them, shipping clerk, cab driver and construction worker. He retired by the time he was 62 and has seven children and 17 grandchildren, one of whom he was going to visit in the Bronx on March 25, 2003 when he had a trip and fall accident descending a stairway on the way to the subway at the Grand Concourse Station.

Simmons claimed there was a defect in one of the steps that caused him to fall and injure his left knee.

The photograph to the right is the actual staircase where this accident occurred. A clear photograph depicting the actual step can be seen in a trial exhibit, here (above the letters “ML”).

In the ensuing lawsuit, a Bronx jury concluded that the defect was significant and had been there for so long that the city’s transit authority, in maintaining the area, should have known about it and repaired it.

The jury heard testimony from Mr. Simmons (by then, 71 years old), an employee of the defendant and expert orthopedic surgeons for both sides and then awarded plaintiff $500,000 in damages for his pain and suffering ($300,000 past – 9 years, $200,000 future – 12 years).

The verdict, both as to liability and the amount of damages, has now been affirmed in Simmons v. New York City Transit Authority (1st Dept. 2013).

The court’s decision sets forth an excellent summary of the injuries and treatment in this case concerning a ruptured patellar tendon that required open surgery to repair.

Knee With Ruptured Patellar Tendon:

Normal Knee Anatomy

 Here are some additional facts about plaintiff’s injury:

  • After the completion of physical therapy in 2003, plaintiff testified that during the next nine years he underwent no medical treatment at all for his injuries.
  • The surgery plaintiff underwent required about a foot long incision and holes drilled into the patella to reattach it to the tendon with large sutures sewn in and anchored in the patella.
  • A calcified mass was discovered in part of the tendon during surgery that the defense contended indicated that aspects of plaintiff’s knee condition were preexisting; plaintiff’s expert, though, while admitting that the calcification pre-dated the accident and was evidence of degeneration, said that the finding was normal (especially because plaintiff had a similar mass in his other knee).

Inside Information:

  • In plaintiff’s closing argument, the jury was asked to award $360,000 for past pain and suffering plus $120,000 for the future.
  • Defense counsel’s closing argument focused on his contention that there was no negligence (and thus plaintiff had no right to any damages at all) but also alternatively addressed damages stating that any award should be “what’s fair” and “… if the kids are playing ball and the ball goes in the window of the house, you give the homeowner a new window, not a new house.”



Pain and Suffering Claim in Suicide Case Survives Appeal

Posted in Psychological Damages, Wrongful Death

In 2005, Erin Stolarski lived in a Port Chester apartment with her boyfriend Donald DeSimone, a police officer. In October, though, Donald told Erin that he wanted to break up and he asked her to leave the apartment. Despondent over the breakup, Erin (23 years old) attempted suicide on October 15, 2005 by ingesting Oxycodone and other pain relieving prescription medications that belonged to Donald.

She was rushed by ambulance to Greenwich Hospital where she was admitted for two days. Upon discharge, Erin moved back home with her parents and was referred to Family Services of Westchester (“FSW”), a non-profit agency, for outpatient social work and psychological services. She met with a clinical social worker at FSW twice – on October 19th and 26th.

On October 28, 2005, though, Erin committed suicide by shooting herself in the head with her ex-boyfriend’s gun that she obtained by entering DeSimone’s apartment with an old set of keys.

Erin’s parents sued DeSimone claiming that he was negligent in failing to properly secure his handgun when he knew or should have known of Erin’s depressed and suicidal state.

They also sued FSW alleging a failure to properly diagnose Erin as suicidal and refer her to a psychiatrist for treatment that could have avoided her suicide.

The claims against DeSimone were dismissed two years ago (Stolarski v. DeSimone – 2d Dept. 2011); however the case against FSW was allowed to continue because (as set forth in the lower court’s decision in 2009) there was an issue of fact as to whether Erin was referred to a psychiatrist and, given her history, whether another suicide attempt was reasonably foreseeable.

On the eve of trial, FSW again sought dismissal, this time claiming that even if it were determined that FSW was negligent, the pre-death conscious pain and suffering damages sought in this case would not be recoverable under New York law (and that there was insufficient evidence to support a claim for pecuniary, or economic, loss).

The lower court granted the motion, to the extent of dismissing the claim for pre-death pain and suffering damages because Erin’s depression already existed when she sought treatment from FSW and there was no evidence that FSW caused it.

On appeal, though, in Stolarski v. DeSimone (2d Dept. 2013), the pain and suffering claim has now been reinstated but limited to 10 days only – October 19, 2005 (when FSW first treated Erin) to October 28, 2005 (the date of Erin’s death).

The appellate court stated:

“… the fact that the decedent’s depression was pre-existing does not preclude the plaintiff from attempting to prove her entitlement to damages on the theory that the decedent’s condition was exacerbated by Family Services’ alleged failure to provide proper treatment.” [emphasis added]

Plaintiff argued, successfully, that there may be provable pain and suffering claims for:

  1. nine or ten days of of continued psychological pain, and
  2. Erin’s traumatic experience of lifting a gun to her head with awareness of her impending death

The appellate court agreed but, as noted above, limited the claim to those damages that were exacerbated, or made worse by, any negligence of FSW that plaintiff might prove at trial.

Inside Information:

  • The attorneys in this case argued repeatedly resulting in a court appointed referee to supervise depositions.
  • It was only a day before trial, after the jury had already been selected, that FSW made its motion attacking the legal basis for plaintiff’s damages claims.
  • The pecuniary damages claim does not appear to be significant. In opposing FSW’s motion to dismiss the pain and suffering claim, plaintiff’s attorney stated that if that claim were dismissed, the case would simply end because plaintiff structured her entire damages theory around conscious pain and suffering.


Court Affirms Increase in Pain and Suffering Verdict for Leg and Wrist Injuries

Posted in Leg Injuries, Wrist Injuries

On August 2, 2007, Anthony Deandino, then a 25 year old ironworker, was a passenger on a motorcycle being driven by his friend Robert Munsen at the intersection of Colonial Road and 78th Street in Brooklyn.

Proceeding through the intersection, they were struck by a city bus that failed to stop at a stop sign. Both were ejected from the motorcycle and landed in the street. Deandino was rushed by ambulance to a nearby hospital where he was diagnosed with several broken bones.

In his ensuing lawsuit, plaintiff’s motion for summary judgment was granted; the owner of the bus (the city’s transit authority) and its driver were held fully liable for the accident. The matter then proceeded to a trial on damages only.

On November 10, 2010, a Kings County jury awarded Deandino pain and suffering damages in the sum of $750,000 ($250,000 past – 3 years, $500,000 future – 46 years).

Both sides appealed – plaintiff claimed that the award was inadequate and the defendant claimed that it was excessive.

In Deandino v. New York City Transit Authority (2d Dept. 2013), the appeals court ruled that the past pain and suffering award should be increased by $150,000 so that the total for pain and suffering was set at $900,000 ($400,000 past, $500,000 future).

Here are the injury details:

  • displaced left femur fracture – requiring open reduction internal fixation surgery with a metal rod, extending from the hip to the knee, implanted and secured with metal screws
  • comminuted, displaced radius and ulna fractures – requiring open reduction internal fixation surgery with two metal pates and 15 screws
  • dislocation of left elbow that ruptured connecting ligaments
  • avulsion of left fingertips requiring surgical repair
  • fractured ribs and pulmonary contusion
  • post-traumatic stress disorder (PTSD)

Deandino was hospitalized for three weeks immediately following accident and underwent two years of outpatient physical therapy.

Several medical witnesses testified for plaintiff, including his orthopedic surgeon Joseph Walsh, M.D., a physiatrist and a psychologist. They discussed the severity and permanence of plaintiff’s injuries (including weakness, atrophy and the likelihood of arthritis developing in both his leg and arm) as well as his inability to return to work, despite his stoic nature and refusal to complain of pain or disability.

In addition to pain and suffering damages, the jury awarded Deandino about $1.7 Million for past and future loss of earnings (including lost pension, health insurance and annuity benefits); the appellate court, though, reduced that sum by $283,000 because the jury disregarded to that extent the testimony and evidence as to the actual amounts for past loss of earnings. The jury determined that plaintiff’s future work-life expectancy was 33 years.

Finally, the jury also awarded (and the appellate court affirmed) $465,000 for future medical expenses (over plaintiff’s 46 year life expectancy).

The defense denied the legitimacy of all of plaintiff’s future economic damages, insisting that he had recovered from his injuries.

Inside Information:

  • Defendant was sanctioned $2,500 for its failure to timely produce a system safety report that included objective data downloaded from the bus’s event recorder  showing the bus had passed through the stop sign at 11 m.p.h and continued at full throttle to the point of impact where it had reached 20 m.p.h.
  • It was after production of the event data report on December 24, 2008, that the defendants conceded liability and a judge granted plaintiff’s motion for summary judgment.
  • Despite the severity of his injuries, Deandino began  looking for work within months of the accident and in early 2008 he landed a job as an ironworker, albeit on light duty. After about six months, though he was unable to continue and never again returned to any type of employment.
  • Before the accident, Deandino had taken and scored well on the examination to become a New York City fire fighter; in the summer of 2009, he took and passed the FDNY’s grueling candidate physical ability test and, before trial, ran in four 5K road races. It was the FDNY’s examining surgeon that the appellate court mentioned as an expert who was precluded from testifying at the trial. The defense wanted his testimony that when he examined Deandino on August 26, 2008, he was physically capable of being a fireman; however, the plaintiff argued, successfully, that the failure until trial was underway to give notice of this intended expert witness was prejudicial and unfair.
  • Plaintiff’s expert psychologist believed that plaintiff was delusional or at least highly unrealistic as to his ability to return to work. Plaintiff’s attorney agreed stating that it was the jury’s job to protect plaintiff from himself by awarding him enough loss of earnings damages so that he would not need to try to return to work. In open court, the attorney turned to plaintiff and stated: “You will never be a firefighter.”
  • Plaintiff had been examined before trial by an orthopedic surgeon for the defense (Raz Winiarsky, M.D.) and a neurologist (Maria De Jesus, M.D.); however, only the neurologist was called as an expert witness and plaintiff was granted a so-called missing witness charge as to Dr. Winiarsky permitting the jury to regard negatively the failure to call him as a witness.
  • In closing arguments, plaintiff’s attorney asked the jury to award $3,500,000 for past pain and suffering; he did not request a specific amount for the future. Prior to trial, plaintiff’s settlement demand was $5,000,000; defendants’ offer to settle was $350,000.
  • Deandino’s motorcycle driver, Robert Munsen, died from the injuries he sustained in the accident. Munsen was a close friend and as Deandino was on the street screaming in pain, immobilized by his own injuries, he was unable to offer any aid to Munsen who was several feet away, also on the street, unconscious and dying.