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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Mesothelioma Pain and Suffering Damages Awards Affirmed

Posted in Mesothelioma

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

The LILCO power plant

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


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

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

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

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

Here are the injury details:

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

Inside Information:

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


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

Courts Address Emotional Distress and Psychological Injury Damages

Posted in Psychological Damages

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

Popeyes Restaurant

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

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

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

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

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

Here are the injury details:

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

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

Inside Information:

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


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

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

Posted in Foot Injuries

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

205 Hudson Street NYC

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

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

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

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

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

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

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

Inside Information:

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


Substantial Pain and Suffering Verdict Affirmed for Boy Struck by Bus

Posted in Brain Injuries, Foot Injuries

On December 18, 2009, then 12 year old Angel Ramos was struck by a city bus as he was attempting to cross Westchester Avenue between 163rd Street and Rogers Place in the Bronx.

NEW YORK - MAY 21: A man enters a New York City bus May 21, 2004 in New York City. Citing security concerns, New York City Transit has proposed a ban on unauthorized photography, filming and videotaping on city subways, buses and Staten Island Railway trains. A ban was imposed in the early 1930's on photographing on subways and buses and was in force until as late as 1994. (Photo by Spencer Platt/Getty Images)

Angel had attended his usual after-school math tutoring class at Sylvan Learning Center and intended to meet up with his aunt and cousins for a church youth program. He never got there.

Angel had just exited a different bus, walked behind it and was about to cross the street to board another bus when the incident took place. The bus driver claimed that Angel was crossing mid-block, failed to use a nearby crosswalk and had walked into the side of his bus causing his tire to run over Angel’s foot.


In the ensuing lawsuit, however, after 17 days of trial over a one month period, a Bronx jury determined on May 27, 2014 that the bus driver was fully at fault for the incident and they awarded plaintiff pain and suffering damages in the sum of $4,907,000 ($1,000,000 past – four and a half years, $3,907,000 future – 57 years).

In Ramos v. New York City Transit Authority (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

As set forth in the court’s decision, Angel sustained a traumatic brain injury (TBI) and left foot fractures and degloving. Here are the injury details:

  • Brain – subdural hematoma, intracranial hemorrhage and lesion on left side (a) causing neurocognitive disorders impairing executive functioning, attention deficits, significantly diminished ability to process information, memory loss and daily headaches and (b) leaving plaintiff unable to finish regular high school and unable to work unless the tasks are menial and repetitive.
  • Left Foot – crush degloving injury that ripped away the skin, tendons, bones and muscles; amputation of the small toe; partial amputation of the big toe;  fractures of the third and fourth metatarsals; daily pain; severe atrophy
  • Face – fractures of the maxillary sinus just below the left orbit (i.e., his left eye)

After Angel was transported by ambulance to a hospital, he was intubated and underwent an arterial catheter procedure. Then, his left foot was irrigated and debrided following which he underwent closure of his open foot wounds with split thickness grafts from his thigh, amputation of part of the bone of his bog toe, a revision debridement, amputation of his first and fifth toes and more debridement. He spent one month in the hospital.

Angel was left with a grossly deformed left foot, an antalgic gait (a limp), 80-90% loss of function and pain that is not only permanent but also will become more painful in the future.

Inside Information:

  • Experts in orthopedic surgery, plastic surgery and neuropsychology examined plaintiff and testified on his behalf; the only medical witness for the defense was an orthopedic surgeon (although before trial plaintiff had been examined by a pediatric neurologist and a plastic surgeon for the defense).
  • After the accident, Angel began failing his classes at school and was for the first time in his life deemed to require special education. At the time of trial, he was enrolled in the ninth grade for his third consecutive year.
  • Plaintiff took his shoes off and showed the jurors his feet, particularly his deformed left foot. According to defense counsel, this was “a very emotional moment” and jurors were seen crying.
  • Angel’s step-father is a Marine Corps platoon sergeant who served in Iraq and Afghanistan. He attended each day of trial in full military uniform (a fact the defense argued in summation was calculated to arouse the jury’s passion).
  • Angel was able to work part-time as a cashier for Marine Corps Community Services,  a fact the defense claimed demonstrated the excessiveness of the jury’s future pain and suffering award. He had very much wanted to follow the footsteps of his step-father (“his hero”) and become a Marine.


Semper Fi.

Large Pain and Suffering Award Cut by Appeals Court in Trip and Fall Case

Posted in Brain Injuries, Hip and Pelvis Injuries

On December 12, 2008, at about 4:45 p.m., Maria Alcantara tripped and fell when she stepped up from the sidewalk onto the concrete landing at the top of a stairway entrance to a subway station located at Graham and Metropolitan Avenues in Brooklyn. Ms. Alcantara, then 64 years old, fell down to the bottom of the stairway slamming her head and hip and sustaining serious injuries.

The Accident Site

The Accident Site

In October 2009, she sued the transit authority claiming that her fall was caused by an area of gouged and broken concrete that had existed for a substantial period of time before her fall.

On January 13, 2014, a Kings County jury determined that the incident was caused wholly by the transit authority’s negligence and then, two weeks later, after they heard detailed evidence of plaintiff’s injuries, the jury awarded pain and suffering damages in the sum of $16,000,000 ($5,000,000 past – six years, $11,000,000 future – 16 years).

In Alcantara v. New York City Transit Authority (2d Dept. 2016), the liability verdict was affirmed but the damages award was reduced to $5,000,000 ($2,000,000 past, $3,000,000 future).

As mentioned in the appellate court decision, plaintiff sustained a left hip fracture and a traumatic brain injury with post-traumatic seizure disorder.


Here are the injury details:

  • emergency admission to a local hospital for four days of observation and treatment and then an additional three days at Bellevue Hospital
  • displaced, comminuted left acetabular fracture extending to the ischial spine
  • closed reduction surgery – a metal pin was inserted through the distal end of the femur protruding outside the skin with weights attached so that the bone was  pulled out to alleviate pressure on the hip joint
  • traumatic brain injury (TBI) from a left frontal hematoma, frontal lobe contusion and a bruised cerebellum
  • daily seizures, altered mental status, headaches, confusion, memory loss, significant partial hearing loss and cognitive deficits
  • permanent loss of ability to speak
  • wheelchair bound (with some ability to ambulate with a walker)
  • depression

subdural hematoma1

Plaintiff testified at a preliminary hearing before she commenced her lawsuit (a so-called 50-h hearing in which municipalities and entities such as the transit authority are afforded the opportunity to examine under oath potential plaintiffs before a lawsuit is brought) but by the time of trial she lost the ability to speak due to her TBI and she was unable to bathe, cook, clean or manage her anti-seizure and other medications. She is cared for by various family members at their homes.

The defendant argued that the jury verdict was excessive because (a) plaintiff did not require hip replacement surgery, she had good range of motion, was not regressing and “nobody knows” why she doesn’t walk and (b) any brain damage was preexisting as evidenced by decades old meningiomas and there was no bleeding on the brain from this incident.

Plaintiff’s treating neurologist testified that the meningiomas were incidental, never caused any problems at all in the past, radiological studies taken in the hospitals soon after showed the brain hematoma and that all of plaintiff’s neurological injuries, including seizures and her inability to speak, were caused by the head trauma. The defense had plaintiff examined by an expert neurologist but he was not called to testify at trial.

Inside Information:

  • Plaintiff was married at the time but had not lived with her husband for more than a year before the accident and there was no loss of consortium claim. He did, though, testify on her behalf as to her prior condition and current disabilities.
  • In his closing argument, plaintiff’s attorney suggested $4,000,000 for past pain and suffering plus $8,000,000 for the future.

City and Construction Company Liable for Substantial Injuries in Car Crash Caused by Unsafe Highway Lane Closures

Posted in Knee Injuries, Leg Injuries, Loss of Consortium Damages

On May 20, 2006 at about 3 a.m., a five-car pile-up occurred on the West Side Highway near 79th Street in Manhattan. Initially, a taxi was rear-ended and caused to strike the car in front of him. While those three cars were disabled in the roadway, James Gregware, coming over a blind hill in the road, rear-ended the car that had rear-ended the taxi. Uninjured, Mr. Gregware got out of his car to exchange insurance information and he was then struck and knocked to the ground by another driver who rear-ended his vehicle.

Another 5 car pile-up

Mr. Gregware, then a 41 year old self-employed film editor, sustained extensive injuries and sued the driver who rear-ended his car, Burtis Construction Company and the City of New York.

At the time, Burtis was performing road work in the area pursuant to a contract with the City. Plaintiff claimed that Burtis and the City were negligent in setting up unsafe lane closures (two of the three lane were closed down) without required warning signs or tapered and staggered lighted-barrels and that as a result drivers were forced to suddenly – and without warning – merge to the right lane causing the accidents that night.

The Manhattan jurors agreed with the plaintiff and on April 15, 2013, after 17 days of trial and five days of deliberations, they were charged by the judge as to the law and then ruled that the City was 65% at fault for the crash and Burtis 35% at fault. They exonerated the driver who struck plaintiff’s car.

The jurors awarded plaintiff pain and suffering damages in the sum of $6,000,000 ($2,200,000 past – seven years, $3,800,000 future – 29 years). They also awarded plaintiff’s wife loss of services and consortium damages in the sum of $1,125,000 ($700,000 past – seven years, $425,000 future – 29 years).

In Gregware v. City of New York (1st Dept. 2015),  the liability and damages verdicts were affirmed but the appellate court found that the jury’s apportionment of 65% of the liability to the City was against the weight of the evidence, in light of the fact that Burtis was responsible for setting up and maintaining the traffic pattern that caused the accident. The case was, therefore, remanded for a new trial on the issue of the apportionment of liability between the City and Burtis.

During the new trial held last week in New York Supreme Court, the parties settled the case for $8,500,000 ($2,000,000 or 23.5% by the City and $6,500,000 or 76.5% by Burtis). The settlement was $1,375,000 more than the total $7,125,000 verdict because of the accrual of about three years of interest.

As indicated in the court’s decision, plaintiff sustained severe and debilitating injuries to his legs, knees, pelvis, shoulder and ribs. Here are the injury details:

  • Right Knee – complete disruption of the anterior cruciate ligament (ACL), medial collateral ligament (MCL), medial patellar retinaculum and part of the quadriceps muscle, comminuted fibular head fracture, partial tear of the vastus lateralis muscle with avulsion fracture of the tibial spine, and a partial tear of the posterior cruciate ligament (PCL)
  • Left Knee – large comminuted avulsion fracture of the lateral tibial plateau, a comminuted fracture of the fibular head with an avulsed lateral collateral ligament, and a torn ACL
  • Pelvis – comminuted fracture deformity involving the right superior pubic ramus
  • Ribs – fractures to ninth and tenth ribs
  • Shoulder – torn right labrum

knee joint ligaments

Mr. Gregware was admitted to the trauma unit of a local hospital for 18 days and then transferred to a nursing facility for inpatient rehabilitation for an additional nine weeks. Upon discharge from the nursing home on August 12, 2006,  Mr. Gregware began outpatient physical therapy attending three hour sessions three days a week for five months (and again intermittently after the  additional surgeries described below).

His injuries required five surgical procedures:

  • On May 31, 2006 – (1) repairs of left knee avulsed tibial lateral plateau fragment with pins and screws and the avulsed lateral collateral ligament with drilled holes, sutures and anchors and (2) right knee ruptured quadriceps tendon sutured, posterior medial corner repaired and MCL repaired with screw
  • On January 22, 2007 – left knee lateral meniscus debridement and chondroplasty and removal of protruding screw
  • On February 5, 2009 – extensive and complex right knee ACL and MCL reconstructions with drilling to insert tendons from cadavers with screws and staples
  • On May 23, 2011 – left knee ACL repair (similar to the right knee repair) and meniscectomy


During the 11 days before his initial surgeries, Mr. Gregware was completely bedridden, catheterized, and in tremendous pain despite medication. Then, his legs were casted from his buttocks to his toes for more than a month. After the casts were removed, he was fitted with Bledsoe braces (metal braces with multiple buckles and straps that restrict the legs from bending) which he wore for about two months (and then again intermittently after his additional surgeries).

Plaintiff’s treating orthopedic surgeon, Elliot Hershman, M.D., testified that Mr. Gregware is already suffering from osteoarthritis and that he will require four total knee replacement surgeries during the course of his life (two on each knee) with pain in his knees for the rest of his life.

Inside Information:

  • Plaintiff also sued the drivers of the vehicles involved in the initial collisions. Their motions for summary judgment of dismissal were granted and affirmed on appeal.
  • The defendants’ three expert physicians conducted five separate physical examinations of Mr. Gregware; however, none testified in court.
  • Prior to trial, plaintiffs’ settlement demand was $6,000,000. The defendants’ final offer was $150,000.
  • Plaintiff was represented by the eminent Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. In his summation, Mr. Rubinowitz asked the jurors to award $3,500,000 for past pain and suffering plus at least $3,500,000 for the future. As to Mrs. Gregware’s loss of services claim, he asked for a total of $1,000,000 but the jurors went beyond that sum and awarded a total of $1,125,000.


Above-Knee Amputation Verdict Affirmed in Medical Malpractice Case

Posted in Amputation Injuries, Loss of Consortium Damages, Medical Malpractice

On October 10, 2004, Donald Schultz twisted his ankle walking up the stairs at work (he was a 36 year old police dispatcher for the City of Tonawanda) and sustained a simple, non-displaced ankle fracture.  He was treated at the local hospital with a brace and instructed to follow up with an orthopedic surgeon.

Mr. Schultz treated with an orthopedic surgeon the next day and, due to unremitting and severe pain on the outside portion of his foot in the area of his fifth metatarsal (the “little toe”), he continued to treat with that surgeon for the next 13 months.


As the pain increased and continued, the doctor noted a concern for RSD (complex regional pain syndrome) and he performed two surgeries on Mr. Schultz’s ankle – first on May 13, 2005  to alleviate the non-union of the fracture and then on September 9, 2005 to tighten the ankle ligaments.

Mr. Schultz’s pain was intractable and unrelenting so on November 10, 2005, he sought out and came under the care of a new orthopedic surgeon. That doctor diagnosed avascular necrosis and on November 30, 2009 performed surgery on Mr. Schultz’s fifth metatarsal and two months later he amputated the head of that toe. The pain progressed, though, and the remaining stump of the toe was then amputated.

Many more surgeries were performed by the new surgeon – 12 in all –  including a below the knee amputation until finally, on October 6, 2009, Mr. Schultz underwent an above-the-knee amputation (performed by a third surgeon).


Mr. Schultz sued his first two orthopedic surgeons claiming  that (a)  the first surgeon should not have performed the two surgeries on Mr. Schultz’s ankle in the face of a suspected diagnosis of RSD because doing so aggravated the RSD and (b) the second surgeon performed various surgeries that were contraindicated and either without a diagnosis or with an incorrect diagnosis.

On February 4, 2014, the Erie County jury found that only the second surgeon was negligent and they awarded pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – eight years, $4,000,000 future – 20 years).

In Schultz v. Excelsior Orthopedics, LLP (4th Dept. 2015), both the liability and damages verdicts were affirmed.

Plaintiff’s orthopedic surgery expert (an instructor at the Yale School of Medicine for 30 years) opined that the second surgeon’s deviations from appropriate standards of care included the following:

  • the first surgery, on 11/30/09, was done without a definitive diagnosis to warrant it in a patient with a known pain syndrome
  • the second, third and fourth surgeries, on 1/25/06 (to remove the head of plaintiff’s fifth metatarsal), on 6/23/06 (amputation of the fifth metatarsal) and on 2/16/07 (amputation of the remainder of plaintiff’s fifth metatarsal), were not based upon a defined diagnosis and were not needed
  • surgeries on 3/21/07 and 3/17/08 (closing a wound and excising a neuroma) caused unwarranted infections
  • surgery on 10/1/08 (amputating plaintiff’s fourth toe) was based upon an erroneous diagnosis of bone infection or osteomyelitis
  • surgery to amputate plaintiff’s leg below the knee was done on a viable limb, without a bone biopsy and based upon an erroneous diagnosis of osteomyelitis

In addition to all of the foregoing, plaintiff’s injuries included:

  • five more surgeries or procedures after his above the knee amputation to assist with the fitting of his prosthetic leg and to deal with infection issues
  • extensive depression and anxiety requiring psychological treatment and medication and resulting in a suicide attempt
  • total disability from employment as of November 2009
  • stress leading to divorce from his wife one year before trial

In addition to damages for pain and suffering, plaintiff was also awarded and the appellate court affirmed damages for plaintiff’s loss of past and future earnings and benefits in the sum of $1,205,989 and approximately $1,100,000 for other future economic damages over 20 years (including $655,500 for prosthetic devices, $157,866 for medical supplies and $135,744 for medications).

Inside Information:

  • Plaintiff’s ex-wife was awarded $350,000 for her loss of services claim for the seven year period from the date of defendant’s negligence to the date the parties no longer resided in the same household. She testified that she became his primary caregiver with their young son and took over all household duties. Mr. Schultz’s treating psychologist testified that his medical problems contributed substantially to the divorce after 23 years of marriage.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the precise sum – $6,000,000 – that they decided upon. He made no suggestion as to the loss of services claim.

Appellate Court Addresses Damage Awards in Case of Excessive Force by Police Officers

Posted in Hand Injuries, Psychological Damages

On May 30, 2008, at about 8:30 p.m., then 49 year old William Cardoza was drinking beer outside in front of the Bronx building where he lived. New York City Police Department (“NYPD”) officers assigned to address quality of life issues, such as public drinking, observed Mr. Cardoza with an open container. In the next two minutes, the officers  approached him and asked for identification whereupon the parties confronted one another and Mr. Cardozo was placed under arrest.

While the parties disputed whether Mr. Cardoza refused to provide identification or simply didn’t understand the officers due to a language barrier, it was undisputed that as he was taken into custody, Mr. Cardoza was pepper-sprayed and hit in his right hand repeatedly by an officer’s baton. A videotape captured the entire incident.


In his ensuing case alleging excessive force, false arrest and resulting injuries, on April 6, 2012, after 12 days of trial, a Bronx County jury awarded Mr. Cardoza pain and suffering damages in the sum of $2,500,000 ($500,000 past – four years, $2,000,000 future – 15 years) as well as punitive damages in the sum of $1,500,000 ($750,000 against each of the two involved officers).

The trial judge ordered a reduction in the pain and suffering damages to $350,000 ($200,000 past, $150,000 future) and vacated the awards for punitive damages.

In Cardoza v. City of New York  (1st Dept. 2016), the appellate court reinstated the verdict for pain and suffering damages to the extent of $1,650,000 ($400,000 past, $1,250,000 future) and it reinstated $150,000 of the punitive damages awards ($75,000 against each officer).

As set forth in the court’s lengthy and well-written decision, plaintiff sustained right (dominant) hand and finger fractures and post-traumatic stress and major depressive disorders as a result of the incident.


Here are the injury details:

  • displaced, comminuted open fractures to second metacarpal bone of right hand
  • open reduction internal fixation surgery to repair the fractures with K-wires
  • six day hospitalization, handcuffed and shackled to bed until discharged
  • surgical removal of wires after 10 weeks
  • physical therapy 2-3 months
  • development of scar tissue with resultant permanent loss of range of motion and diminished grip strength, manual and finger dexterity, all resulting in an inability to perform many work-related activities such as holding tools, painting and making apartment repairs and difficulty with activities of daily living such as getting dressed
  • psychiatric/emotional injuries including feeling isolated, useless, helpless and depressed, inability to sleep, recurring nightmares, fear of seeing policemen, and suicidal ideations, all of which plaintiff’s treating psychiatrist opined left him with permanent post-traumatic stress and major depressive disorders requiring four years of psychiatric treatment to the date of trial, 15 more years of treatment in the future and anti-depressant and sedative medications including Lexapro, Ambien and Trazodone


Inside Information:

  • Hugo Morales, M.D., plaintiff’s treating and testifying psychiatrist, is the only Spanish speaking psychiatrist in the Bronx.
  • Plaintiff had been a building superintendent for 14 years and at the time of his arrest was working in that capacity part-time. He was unable to return to work until about four months later (but only in a limited capacity); however, he did not assert a lost earnings claim.
  • Defendant’s settlement offer of $100,000 was rejected and plaintiff’s counsel asked the jurors to award pain and suffering damages of $1,600,000 plus punitive damages of $1,000,000 against each of the two police officers.
  • Plaintiff’s attorney, Seth A. Harris, stated that this case represented one of the most compelling excessive force cases he’s seen in 25 years. He also said that both police officers will be indemnified for the punitive damages awards and will not have to pay out of pocket.


Appellate Court Addresses Pre-Impact Terror, Conscious Pain and Suffering and Pecuniary Damages in Pedestrian Knockdown Wrongful Death Case

Posted in Wrongful Death

On December 2, 2009 at about 7 p.m., a woman was walking across the street at the intersection of Avenue U and East 71st Street in Brooklyn. A city bus driver had stopped for a red light before turning right onto Avenue U when his bus struck and killed the pedestrian, 65 year old Virginia McKibbin.

A pedestrian crosses the street in front of a city bus at a downtown crosswalk, Wednesday, July 29, 2009, in Des Moines, Iowa. Responding to a stubborn spate of buses hitting pedestrians, the Des Moines bus system will require drivers to honk every time they turn. And because all of the accidents happened when buses were turning left, drivers now have new routes that allow only right-hand turns downtown. (AP Photo/Charlie Neibergall)

In the ensuing lawsuit against the bus driver and owner, on December 20, 2012,  a Kings County jury apportioned fault for the accident 75 % to the driver and 25% to the pedestrian.

The jury then awarded pecuniary damages to the decedent’s three adult daughters in the sum of $1,200,000 (10 years) but awarded zero for pre-impact terror and zero for conscious pain and suffering.

In Keenan v. Molloy (2d Dept. 2016), the appellate court:

  1. affirmed the jury’s verdict awarding zero damages for pre-impact terror and zero damages for conscious pain and suffering, and
  2. reduced the pecuniary damages award to the principal sum of $600,000 (i.e., $800,000 reduced by 25% for comparative fault).

Under New York law, pecuniary damages may be awarded to a decedent’s children for their monetary losses caused by their parent’s death.  Jurors may not make any award for sorrow, mental anguish, injury to feelings or for loss of companionship. Among the considerations jurors are charged with considering in this regard are (a) the earnings a decedent would have spent in the future for the care and support of her children and (b)  the value of the intellectual, moral and physical training, guidance and assistance their mother would have given them had she lived.

The appellate court determined that $800,000 for pecuniary damages is reasonable in this case based upon the testimony of Ms. McKibbin’s three daughters (who were 39, 42 and 45 years old at the time of trial) as to their loss of parental guidance. All four lived close to one another in Brooklyn, shared Sunday dinners every week and spent a great deal of other time together each week (along with the daughters’ three young children). There was significant unrebutted testimony about how close the daughters and grandchildren were with the decedent, how she provided them all with counseling especially during difficult times and how Ms. McKibbin was “the glue that held their family together.”

There was also evidence that the decedent spent a great deal of time caring for her grandchildren, babysitting for them, cooking for them, having weekend sleep-overs and helping to teach and care for her special needs grandson.

In a post-trial decision, the presiding judge characterized the nature and quality of the relationship between Ms. McKibbin and her family as “exceptional and significant” and stated that her every day involvement with her family could easily support the jury’s $1,200,000 award for loss of parental guidance and support.

Emotional pain and suffering damages for a decedent’s pre-impact terror may be awarded when there is proof that between the moment a decedent realized she was going to be gravely injured and die and the moment she sustained a physical injury:

  • she was aware  of the danger that caused her death,
  • she was aware of the likelihood of grave injury or death, and
  • she suffered emotional distress as a result of her awareness of her impending grave injury or death.

In this case, the defense argued successfully that there should be no award for pre-impact emotional distress because (a) a scream that the bus driver heard at the time of impact may have come from someone other than the decedent and (b) Ms. McKibbin was likely rendered unconscious immediately upon impact. Plaintiff contended that because the accident occurred without witnesses (the bus had no passengers), the only person who could have screamed was the decedent.

Pre-death pain and suffering damages (distinct from emotional distress damages for pre-impact terror) may be awarded for pain and suffering during such time as a decedent was conscious from the moment of injury to the moment of death.

Here, the defendants argued successfully that no award at all should be made as to this aspect of damages because, as opined by their expert trauma physician,  Ms. McKibbin lost consciousness on impact. Plaintiff’s expert opined that when Ms. McKibbin was being run over by the bus “she knew what was happening to her” and she “could feel pain” but he did not offer any opinion as to whether she was conscious when found moments later in the street (“I don’t know.”). A passerby testified  that while Ms. McKibbin was on the ground he heard very shallow breathing, like a small gasp for air, but the defense expert testified that a person exhibiting such so-called agonal breathing who sustained massive trauma like Ms. McKibbin did in this case generally would be unconscious.

Ms. McKibbin was found unconscious by ambulance personnel and confirmed dead on arrival at the hospital 30 minutes after the accident.

Inside Information:

  • Ms. McKibbin had worked for 20 years in a title insurance office earning about $42,000 in her last full year of work in 2008.
  • There was substantial testimony from the daughters about the financial assistance their mother gave to them and their children from time to time for things like rent, utility bills and divorce proceedings. There was no accompanying documentary evidence to support those claims and the only specific testimony in this regard was from one of the daughters who testified that her mother gave her about $1,250 per month.
  • In his summation, plaintiff’s counsel, Christopher Meagher, asked the jury to award $1,000,000 for pecuniary damages sustained by the decedent’s three adult daughters (two divorced, one never married) who, he said, lived in a solar system that revolved around their mother. Exercising their prerogative, the jury determined that this item of damage exceeded counsel’s request.
  • With the 25% reduction for comparative fault, the jury’s award was reduced to $900,000. While the appellate court then reduced the gross award to $800,000 – with the result being a net award of $600,000 – the award remains quite significant and at the high end of such awards to adult children in New York wrongful death cases.



Medical Malpractice Verdict Affirmed in Delayed Cancer Diagnosis Case

Posted in Medical Malpractice

On November 4, 2003, Jennifer Luna, then 30 years old and 12 weeks pregnant, consulted her internist because she was not feeling well. The doctor conducted a physical examination and concluded that she had an enlarged thyroid which an ultrasound then confirmed along with the presence of five solid nodules. Ms. Luna was referred to an endocrinologist who examined her two weeks later and told her that her thyroid condition was due to her pregnancy and was benign.


It was not until December 2, 2004, though, that a biopsy was performed which revealed that Ms. Luna had medullary thyroid cancer.

In her ensuing malpractice lawsuit, a Suffolk County jury determined on December 1, 2011 that the doctors should have diagnosed the cancer 13 months before and that their failure to do so caused pain and suffering damages in the sum of $4,600,000 ($1,200,000 past – eight years, $3,400,000 future – 15 years).

The defendants made post-trial motions  to set aside the jury verdict on the issues of liability and damages and for a judgment dismissing the complaint. The trial judge granted the motions and plaintiff appealed.

In Luna v. Spadafora  (2d Dept. 2015), the judgments of dismissal entered pursuant to the post-trial decisions were reversed and the jury verdict on the issues of liability and damages was reinstated.

The 13-month delay in diagnosing Ms. Luna’s cancer caused the following injuries:

  • a change in the stage of the cancer from Stage II to Stage IV
  • a worsened prognosis and increased damages due to the metastasis of her cancer to her lymph nodes and eventually to her lung
  • a decreased 10-year survival rate – from 85-90% to only 40-50%
  • more extensive surgery to remove the cancer
  • two unnecessary surgeries (to remove additional tumor growth and implant a prosthesis)


Inside Information:

  • Plaintiff had been employed as an information technology manager in a law firm and claimed that she became unable to work in March 2007. She was awarded damages for past loss of earnings in the sum of $358,875 and future loss of earnings for 28 years at the rate of $58,000 per year in the total sum of $1,624,000 (with a 2.5% growth rate).
  • Plaintiff’s spouse was awarded $250,000 for his loss of services/consortium claim.
  • Following the appellate court decision, the defendants moved to reargue and for leave to appeal to the Court of Appeals seeking, in part, a clarification as to the status of their claims that the damages awards were excessive. The motions were denied.
  • Plaintiff has survived to date, a fact that defendants argued is new and supported their request for reargument and a new trial. Plaintiff argued that this fact should not be considered on reargument as it was not in evidence before the jury and in any event about half of all people diagnosed with Stage IV metastatic medullary thyroid cancer will survive past 10 years.