Header graphic for print

New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Serious Injury Threshold and Punitive Damages at Issue in Drunk Driving Case

Posted in Neck Injuries, Punitive Damages

On May 7, 2005 Sean Dernago was driving his employer’s box truck on the George Washington Bridge when, after weaving in and out of several lanes in fairly heavy traffic, he rear ended a pick-up truck and launched it into a minivan driven by Frank Chiara. His wife Venetia Chiara was a front seat passenger and their triplet eight year boys were all rear seat passengers. Mrs. Chiara and one of her sons, Nicholas, were injured.

Scene of the Accident

Dernago was employed by Connecticut Shellfish Company and had been making deliveries to restaurants that day.  Towards the end of his route, Dernago stopped at Hooters in Paramus where he drank about 10 beers. He then headed to his last stop in City Island but before he got there he caused the crash with the Chiara family.

Chiara was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months.

The Bar at Hooters in Paramus, NJ

The Bar at Hooters in Paramus, NJ

In the ensuing lawsuit, defense lawyers conceded that Dernago was intoxicated but suggested that the pick-up truck struck plaintiffs vehicle before any impact from the defendant. Dernago did not testify in court but in his deposition transcript he said he heard only one impact and the jurors made short shrift of the defense argument and returned a verdict of full liability against the defendant.

In the damages portion of the bifurcated trial the defendants argued that Mrs. Chiara’s claimed neck injury did not meet the serious injury threshold under Insurance Law Section 5102(d); however, on September 21, 2011, the Nassau County jurors disagreed and returned a verdict for pain and suffering in the sum of $160,000 ($90,000 past – six years, $70,000 future – 28 years). They also awarded punitive damages in the sum of $70,000.

In Chiara v. Dernago (2d Dept. 2015), the threshold determination and the damages awards have been affirmed.

As indicated in the court’s decision, Mrs. Chiara, a homemaker then 47 years old, sustained injuries to her cervical spine that caused disc herniations and left her with significantly decreased range of motion.

Here are the injury details:

  • herniated discs at C4-5 and C5-6 with radiculopathy
  • bulging discs at C3-4 and C6-7
  • physical therapy and chiropractic treatment (about 135 visits) continuing to the date of trial
  • trigger point injections
  • continuing need for pain medication
  • permanent cervical spine range of motion deficit of almost 50%

Cervical-Disc-Herniation2

Although plaintiff did not complain of neck pain at the scene or at the emergency room later that night, she shortly thereafter developed significant spasms and neck pain that she testified continued to the date of trial and limited her abilities to cook, work at a computer, garden, concentrate and play with her children. She admitted, though, that “there’s nothing I cannot do at all.”

Plaintiff’s injuries and treatment were testified to by her neurologist James Liguori M.D.; whereas defendants offered the testimony of expert radiologist A. Robert Tantleff, M.D. who reviewed plaintiff’s MRI and said that there was no nerve root compression,  plaintiff’s condition was completely related to degenerative disc disease and she had not sustained an acute herniation.

The award of punitive damages was based upon plaintiff’s claim that not only was Dernago a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished. The defense argued that drunk driving alone will not as a matter of law support a punitive damage claim (that is correct) and that there was little or no evidence to meet the higher burden needed for punitive damages, especially in view of the fact that Mr. Dernago was pulled over by a police officer for failure to signal a lane change about 10-15 minutes before the crash,  was given a field sobriety test and let go without any tickets.

Inside Information:

  • The claim by plaintiff’s son Nicholas was settled during trial for the sum of $25,000. His injury was minor, essentially some neck spasms treated with physical therapy.
  • In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $630,000 ($350,000 past, $280,000 future). Defense counsel argued that plaintiff was entitled to no damage award at all because her injuries did not meet the statutory serious injury threshold.
  • Mrs. Chiara’s settlement demand had been $150,000 against an offer of $60,000.

Catastrophic Injury Awards Affirmed for Worker in Roadway Accident

Posted in Amputation Injuries, Loss of Consortium Damages

On October 24, 2008 Robert Loja was working for a landscaping firm in Sleepy Hollow. Just after parking his employer’s truck on Benedict Avenue and unloading his lawn mowing equipment from his truck’s trailer, Loja was struck by a car driven by a young woman on her way to work. His legs were crushed between the car and his trailer.

15 - Google Maps

The Scene of the Accident

When he woke up in a hospital two days later, the 35 year old Loja learned that his left leg had been amputated above the knee.

In the ensuing lawsuit,  the driver contended that she was not at fault because there was a blinding sun glare and the roadway  was improperly and unsafely blocked off by plaintiff and his employer.

sun glare

The Westchester jury found the driver only 10% at fault while charging plaintiff with 30% of the fault and the landscaping company with 60%.

On January 27, 2012, the jurors awarded pain and suffering damages in the sum of $5,500,000 ($2,500,000 past – three years, $3,000,000 future – 18 years).

Plaintiff was also awarded $1,000,000 for future loss of earnings (18 years) and his 25 year old wife was awarded $1,000,000 for her loss of consortium claim ($500,000 past – three years, $500,000 future – 18 years)

Appeals were pursued by both the defendant and the landscaping company (in the case as a third-party defendant because plaintiff was barred under the Workers Compensation Law from suing his employer). Defendant argued that the damages awards were excessive whereas the third-party defendant  argued only that the liability verdict was against the weight of the evidence and that evidentiary errors required a new trial.

In Loja v. Lavelle (2d Dept. 2015), the appellate court affirmed all of the damages awards but shifted the liability apportionment as follows: 50% to defendant, 10% to plaintiff and 40% to third-party defendant.

The court decision mentions that plaintiff’s legs were pinned by the car underneath the trailer and that one of his legs was amputated as a result. Here are additional injury details:

  • left leg mangled crush injury, essentially a traumatic amputation
  • surgical removal of six inches of the lower left femur, i.e., an above the knee complete amputation
  • additional surgeries (a) to wash out the stump, remove ischemic skin and insert a vacuum assisted closure dressing for wound healing, (b) to replace dressings and insert a permanent inferior vena cava filter in the abdomen to prevent blood clots and (c) to graft skin from plaintiff’s hip to his left leg stump
  • right leg – severe instability of knee joint with compartment syndrome requiring emergency  external fixation and fasciotomy
  • right ankle – tears of the anterior talofibular, calcaneofibular and other ligaments
  • back – herniated disc at L5-S1 with radiculopathy
  • post-traumatic stress disorder and major depression with guarded prognosis; needs psychotherapy and medication
  • hospitalization for one month at Westchester Medical Center and then at its related Taylor Institute for Rehabilitation for another month
  • outpatient rehabilitation for three months at three more hospitals
  • continuing phantom pain in left leg (requiring lifetime pain medication) , ill-fitting prosthesis (with several replacements needed over the years), use of cane to ambulate
  • unable to bend, lift, twist, rotate or do excessive standing or sitting
  • continuing need for electrical stimulation and brace on right ankle
  • needs total knee replacement within 5-10 years
  • unable to return to work

Inside Information:

  • By stipulation, the parties agreed that plaintiff’s damages included $98,000 for past loss of earnings and $178,318 for past medical expenses. These amounts were subject to a lien by the workers compensation carrier.
  • A settlement was discussed in open court during the trial. Defense counsel indicated that his client would pay $250,000 and that the workers compensation carrier would pay $750,000 and waive its lien of about $250,000. After a hearing in which the potential settlement was explained, Mr. Loja declined to settle.
  • Due to (a) the fact that the driver had very limited insurance coverage and (b) the intricacies of  CPLR Article 16 (regarding joint liability) and the Workers Compensation Law (which prohibits employees from suing directly their employers in work-related accidents), it appears Mr. Loja’s actual financial recovery in this lawsuit will be much less than what was offered.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $7,475,000.

Subway Platform Injury Award Affirmed

Posted in Ankle Injuries

On April 18, 2008 Pamela Blechman was on her way to a meeting for her employer, a charitable fund, when she boarded a crowded uptown subway train at the 14th Street-Union Square station in Manhattan. After she stepped from the platform into the subway car, Ms. Blechman was jostled backwards and fell into a foot-wide gap between the edge of the station platform and the door sill of the subway car.

union_sqn42

She fell into the gap up to her armpits with one leg in the gap and the other still in the train. Before the train pulled away from the station, she was pulled out but she’d injured her ankle and an ambulance came and took her to a nearby hospital.

In her ensuing lawsuit, Ms. Blechman claimed that the transit authority was negligent and caused her injuries because the train stopped 10-15 feet past its usual spot, creating a dangerous gap that was two times larger than the normal six-inch gap.

The defendant asserted that it performs a governmental function and, accordingly, its decisions concerning acceptable gaps between subway cars and platforms should be entitled to qualified immunity. On March 19, 2013, a decision was issued striking the qualified immunity defense and ordering that the defendant was not permitted to raise it at trial.

On October 17, 2013, a Manhattan jury found that the transit authority was  liable for the accident and awarded the 40 year old Ms. Blechman pain and suffering damages in the sum of $350,000 (all past – 5 1/2 years).

In Blechman v. New York City Transit Authority (1st Dept. 2015), both the liability and damages verdicts have been affirmed. As set forth in the decision, plaintiff sustained a comminuted ankle fracture that required two surgeries.

Here are the injury details:

  • displaced, comminuted oblique fracture through the lateral malleolus
  • surgery #1 on 5/2/08: open reduction with internal fixation (“ORIF”) with a six-hole plate and six screws including an interfragmentary screw (right through the bone)
  • following the first surgery, plaintiff was casted, then used a walking boot, followed by physical therapy and then home exercises
  • surgery #2 on 1/26/09: removal of the implanted hardware and excision of an exostosis (a fragment of bone protruding internally)

malleolus fx

The defendant argued that the jury’s $350,000 pain and suffering award was excessive because:

  1.  plaintiff’s surgeries were done on an  outpatient basis,
  2. her “course and recovery were as smooth as possible” and
  3. four months after the accident she went on vacation to Bali where plaintiff hiked to the top of a volcano

Bali Volcano Hike

Plaintiff was awarded nothing at all for future pain and suffering apparently because the jurors determined she’d made an excellent recovery, returned to work without restrictions within four months, was both before and after the accident a very active and athletic woman and she did not testify as to any limitation in her daily activities except to the extent that she said she can “not really” run any more. Asked how her hiking differed from before the accident, she replied: “Yes, it was actually a good recovery, so I’m able to do a lot of what I did, but it’s not quite at the same level.”  Plaintiff did not challenge this aspect of the award.

Inside Information:

  • In summation, plaintiff’s counsel recommended that the jury award $300,000 for past pain and suffering and $200,000 for the future. Defense counsel recommended $30,000 ostensibly for past pain and suffering only.
  • Plaintiff’s settlement demand had been $425,000 against a $5,000 offer.

Back Injury Pain and Suffering Awards Affirmed

Posted in Back Injuries

On December 20, 2008 Anthony Waring was employed as a housekeeper at Sunrise Assisted Living in Yonkers.

Sunrise Assisted Living in Yonkers, NY

Sunrise Assisted Living in Yonkers, NY

It had snowed the night before and Mr. Waring’s first order of business that morning was to shovel snow off the outside walkways. To do that, he had to get a shovel from the newly constructed outdoor shed in the back of the property. After doing so, he slipped and fell on the shed’s downward sloping exterior ramp.

As a result of his fall, Mr. Waring, then 22 years old, sustained a back injury that prevented him from returning to his job and he sued the property owner claiming that he fell because the ramp was three times as steep as that permitted under the building code and the it lacked handrails as required by the code.

In the Bronx County lawsuit (venue was based upon Mr. Waring’s residence), the jury returned a verdict finding the defendant fully at fault and awarding plaintiff pain and suffering damages in the sum of $600,000 ($100,000 past – four years, $500,000 future – 31 years).

In Waring v. Sunrise Yonkers SL, LLC  (1st Dept. 2015), both the liability and  damages verdicts have been affirmed.

As set forth in the appellate court decision, plaintiff sustained two bulging cervical discs and three lumbar herniations with impingement, can perform only sedentary work and will require surgery and/or a spinal cord simulator and continuing pain management.

lumbar disc herniation with impingementpinge

Here are additional injury details:

  • herniated discs at L3-4, L4-5 and L5-S1 impinging upon nerve roots with nerve damage and radiculopathy at L4-5 confirmed by an EMG
  • three epidural steroid injections
  • three months of physical therapy
  • permanently disabled from engaging in heavy labor
  • unable to play with his two young sons
  • permanent, chronic back pain whether sitting, lying down or walking short distances
  • doctor’s orders to refrain from lifting anything heavier than 15 pounds, twisting, bending, kneeling and sitting or standing for more than 15 minutes at a time
  • future surgery required – laminectomy discectomy and spinal fusion

In addition to pain and suffering damages, the jury also awarded plaintiff:

  • lost wages in the sum of $480,000 ($80,000 past, $400,000 future) and
  • medical expenses in the sum of $750,000 ($250,000 past, $500,000 future).

After the verdict, the trial judge issued a decision reducing (a) the future lost wages award to $200,000 in view of plaintiff’s age and his conceded ability to engage in sedentary labor and (b) the future medical expense award to $65,000 ( the cost of the spinal cord stimulator).

Inside Information:

  • While the court decision mentions that bulging cervical discs were among plaintiff’s injuries, by the time of trial plaintiff’s neck pain had improved to the point that his attorney told the jury they “are not asking for any monies with regard to his neck.”
  • Plaintiff had been employed at defendant’s facility only three months or so before this incident and he’d fallen once before on the job when it had rained and the ramp was slippery. That time, he hurt his wrist but continued to work.
  • Defense counsel was repeatedly admonished by the trial judge for injecting hearsay statements into her questions and making legal arguments before the jury. At one point, the judge told the jury that her actions were improper and that she “should know better and has not been following the court’s instructions.”

Construction Site Trip and Fall Accident Caused Significant Hand Injury

Posted in Hand Injuries

On September 18, 2002 Thomas Pyle was a tile setter’s helper working on the construction of a 48 story residential apartment building in Manhattan that came to be known as 220 Riverside Drive.

OLYMPUS DIGITAL CAMERA

Construction at at 220 Riverside Drive

Mr. Pyle, then 47 years old, tripped and fell onto his left hand due to construction debris on the floor. Bleeding profusely from his hand which had been cut by a sharp edge from marble debris, Pyle was driven to a local hospital by the site nurse.

Suit was brought against the owner of the site and the construction manager alleging violations of New York’s Labor Law. After a two week trial, the Manhattan jury returned a verdict on October 16, 2012 finding that the construction manager was liable for Pyle’s injuries under Labor Law Section 241 (6) because it violated the Industrial Code provision (Section 23-1.7[e][2]) that requires construction site floors to be kept free from debris and sharp projections; however, the jury also found that Pyle was comparatively negligent and liability was split 50-50 between the parties.

As to damages, the jury awarded $100,000 for pain and suffering for the five year period from the date of the accident to the date of Mr. Pyle’s death (from unrelated causes).

In Kutza v. Bovis Lend Lease LMB, Inc. (1st Dept. 2015), the liability verdict against the defendant was affirmed but the comparative negligence finding against plaintiff was reversed. Additionally, the pain and suffering award was found to be inadequate and it was increased to $400,000.

The appellate court also found inadequate the jury’s failure to award any damages at all for plaintiff’s wife’s loss of consortium claim and determined that $50,000 was the least that should have been awarded.

The decision mentions that that Pyle sustained a hand injury with nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety and significant limitation of the use of his hand.

nerves_of_the_hand1342942330291

Here are additional injury details:

  • deep lacerations of left (dominant hand) median nerve, flexor pollicis longus, flexor carpi radialis, palmaris longus and radial artery
  • surgery to repair the lacerations with over 30 sutures, irrigation and debridement and a carpal tunnel release
  • six months of three times a week outpatient occupational and physical therapy
  • development of deformed, claw-like hand, with no ability to flex or extend his fingers, continuing pain (requiring narcotic medication), numbness, loss of temperature sensation coldness and discoloration
  • permanent, chronic and severe radial and ulnar neuropathy
  • never able to return to work or to help his wife with cleaning, laundry and other household chores or to camp or help his 13 year old son with Boy Scouts activities
  • depression with psychiatric treatment and medication

Inside Information:

  • Thomas Pyle’s death on November 16, 2007 was due to a heart attack (he had a history of hypertension) and he was never deposed in the lawsuit. His wife, Marianne Kutza, was appointed administrator of his estate, became the named plaintiff in the lawsuit and testified on his behalf.
  • In 2011, the defendants sought to have the case dismissed in part because there were no actual eyewitnesses who testified they saw plaintiff’s fall. The claim under Labor Law 240(1) (as to elevation-related hazards) was dismissed but the case was allowed to proceed to trial on the other Labor Law claims.
  • Mr. Pyle was earning about $50,000 a year before the accident and the jury awarded damages for lost earnings in the sum of $200,000.
  • In his closing argument, while maintaining that plaintiff was responsible for the accident, defense counsel addressed the issue of damages and said that if the jurors determined defendants were liable then “a reasonable number for pain and suffering over that time period [five years] is anywhere from $100,000 to $250,000.”
  • In discussions with jurors after the verdict was rendered, it appeared that three female jurors did not like Ms. Kutza and that the inadequate award was driven, at least in part, by animosity.

Pain and Suffering Damages Determined at Inquest Affirmed for Woman in Trip and Fall Case

Posted in Brain Injuries

On December 12, 2007, Lucille Martorella tripped and fell on a broken sidewalk in front of the property at 150-20 Centerville Street in Ozone Park. She picked herself up and walked around the block to her home where she rested, dazed and in pain.

Within a couple of days the then 64 year old woman started losing the feel and grip of one of her hands and then one of her legs “started dragging as bit.”

Claiming significant and permanent injuries, Ms. Martorella sued the owners of the property. The defendants never properly answered the complaint and plaintiff’s motion for a default judgment of liability was granted on September 8, 2010.

default1

Thereafter, an inquest was held following which, on May 13, 2011, the judge in Queens County issued a decision awarding pain and suffering damages in the sum of $185,000 ($165,000 past – 3 1/2   years, $20,000 future – 17 years).

In Martorella v. 150 Centerville Holding, LLC (2d Dept. 2015) the $185,000 award was affirmed.

Neither the inquest decision nor the appellate court decision gives any indication of the nature of the injuries. Here are the injury details:

  • emergency room treatment at Phelps Memorial Hospital Center on 12/24/07 (12 days after the fall) for progressively worsening left leg symptoms impairing her ability to walk and left arm trembling – diagnosed with an intracranial hemorrhage (acute right thalmic bleeding) and a stroke requiring immediate transfer to a tertiary care unit at another hospital
  • intracranial-bleeds-copy
  • transferred by ambulance and admitted to Westchester Medical Center on 12/24/07 through 12/30/07 where she was treated with daily transfusions of platelets and IV immunoglobulin therapy
  • inpatient rehabilitation treatment for one month at Kendal on Hudson, a continuing care retirement community located on the Phelps campus that also offers skilled nursing care
  • about three months of hospital outpatient rehabilitation treatment for left side hemiparesis
  • one month in a wheelchair and another using a cane
  • as of the inquest date, continuing left side weakness leaving plaintiff unable to walk stairs without great difficulty and unable to use both hands for any activities such as cooking, dressing herself and shopping

Inside Information:

  • The only testimony at the inquest was from the plaintiff (who was subjected to cross-examination by defense counsel). In addition, she submitted as evidence medical records from the hospitals and doctors.
  • Plaintiff had ceased any treatment for her injuries as of the date of the inquest.
  • Plaintiff had a pre-existing history of idiopathic thrombocytopenia purpura (ITP), a disease in which existing platelets are destroyed and not enough are produced. Defense counsel argued on appeal, unsuccessfully, that (a) there was no evidence that plaintiff’s stroke was the result of her fall 12 days earlier and (b) there was nothing to show that plaintiff’s thalmic bleed and stroke were anything but the continuation and progression of her longstanding ITP.

Pre-Death Pain and Suffering Damages Reduced in Medical Malpractice Case

Posted in Medical Malpractice, Wrongful Death

In 2002, Ciciline Reid was a 49 year old grandmother who worked seven days a week as a home health aide. On July 28th, she  presented to the Montefiore Medical Center emergency room complaining of swelling on the side of her neck and pain on swallowing that was diagnosed as a sore throat and gland infection. She was administered intravenous antibiotics, her condition improved and she was discharged after four days.

Montefiore Med Ctr

Unfortunately, Ms. Reid’s symptoms persisted and after several doctor visits over the next four months, she ended up in the hospital again on December 7, 2002  and was diagnosed with lymphoma (a cancer of the lymphatic system).

NYEE

For the next two years, Ms. Reid underwent aggressive treatment and despite complete (but only three or four months) remission, the cancer relapsed and she died from the disease on January 11, 2005.

In the ensuing lawsuit, medical malpractice claims were made against the hospital and three physicians for failing to diagnose the lymphoma when Ms. Reid first presented to the hospital in July.

Plaintiff’s expert oncologist testified that a biopsy of an abnormally enlarged lymph node seen on a CAT scan in plaintiff’s neck should have been performed promptly upon plaintiff’s initial treatment at the hospital and that it would have revealed the lymphoma.

The trial in Bronx County concluded on December 6, 2012, after the judge charged the jurors as to the law and then they returned a verdict as to liability specifically finding that:

  1. plaintiff had lymphoma as of July 28, 2002
  2. the hospital, through its physicians, was negligent in not diagnosing lymphoma until November 15, 2002, and
  3. the physician remaining as a defendant (two others had been voluntarily dismissed by the plaintiff before trial) was not negligent

The jury also addressed damages and awarded the sum of $2,400,000 for plaintiff’s pre-death pain and suffering.

Here is the actual verdict sheet completed by the jurors.

The hospital appealed both the liability finding and the damages award. In Reid v. Bharucha (1st Dept. 2015), the malpractice verdict against the hospital was affirmed but the appellate court reduced the pain and suffering award to $2,000,000.

As indicated in the decision, the pain and suffering award was for “one year of additional cancer treatment.” There was evidence that had the lymphoma been diagnosed in July it would then have been Stage I or II with about an 85% prognosis for survival but that because it was not diagnosed until November it was by then Stage  IV with the “worst prognosis.”

Ms. Reid underwent an eight cycle chemotherapy regimen  with each cycle repeated every three weeks. She would have needed that in either event.

Her cancer remained in remission for almost a year but her expert oncologist testified that had she been diagnosed with lymphoma in July or August, she would have had “an overwhelmingly better response and prolonged remission ….”

Additional treatment following the chemotherapy was needed (which plaintiff’s expert testified could have been avoided had the earlier diagnosis been made) including:

  • bone marrow and stem cell transplants
  • immunotherpay
  • additional sessions of high dose chemotherapy with 10 additional hospital admissions
  • splenic infarction (tissue death)
  • increased and additional unremitting pain and suffering requiring a morphine pump, Fentanyl patches and other powerful narcotic medicines

The jury also awarded damages for medical expenses, loss of earnings and loss of parental guidance (regarding Ms. Reid’s two adult children). These awards were addressed in a post-trial decision and in the appellate court decision as follows:

  • Medical Expenses – $450,000 affirmed
  • Loss of Earnings – $60,000 (reduced by the trial judge from $1,200,000)
  • Loss of Parental Guidance – $10,000 to each child (reduced from $50,000 each)

Inside Information:

  • After the jury began its deliberations, defense counsel offered $750,000 to settle the case. The offer was rejected.
  • The medical expenses award was in the amount of the lien asserted for the items paid before Ms. Reid’s death. Defense counsel argued, unsuccessfully, that because the malpractice did not cause the cancer this award should have been reduced to reflect only those items that related to the additional one year of cancer treatment that was necessary due to the delayed diagnosis.

Appellate Court Orders Increase in Pain and Suffering Damages in Facial Injury Case

Posted in Facial Injuries

On October 27, 2008 Robert Parrotta drove to Stacey Killon’s home in Minerva to confront him about Killon’s relationship with Parrotta’s ex-wife. Angry words were exchanged as they stood near an outside porch with Parrotta wielding a baseball bat and Killon a maul handle. Parrotta ended up smashing Killon in the face with the baseball bat.

baseball bat

Killon, 41 years old, sustained extensive facial injuries and he sued the 58 year old Parrotta for damages.

In 2011, a Warren County jury returned a verdict for the defendant finding that he was justified and acted in self-defense in his use of deadly physical force upon the plaintiff; however, a new trial was ordered after an appellate court ruled that the defendant, because he drove 20 miles to plaintiff’s home, advanced to his porch with the bat in his hand and demanded a fight, was the initial aggressor and therefore not entitled to the defense of justification.

self-defense-1-0-s-307x512

On October 4, 2013 the new jury returned its verdict awarding plaintiff $25,000 for future pain and suffering but nothing at all for past pain and suffering. Plaintiff appealed again, this time contending that the damages award were inadequate.

In Killon v. Parrotta (3rd Dept. 2015) the judges ordered an increase in the pain and suffering damages to $350,000 ($200,000 past – five years, $150,000 future – 31 years).

The appellate court decision sets forth a description of plaintiff’s injuries. Here are the injury details:

  • comminuted fractures of the mandible (jaw)
  • mandibular-fracture-13-638
  • bilateral temporomandibular joint (“TMJ”) dislocation
  • tmj dislo
  • parasymphysial comminuted fracture with bone loss
  • nasoseptal fracture
  • dislocation and displacement of the mandible with the loss of three teeth
  • concussion

As a result of his injuries, plaintiff underwent extensive medical and surgical treatment including:

  • initial hospitalization for five days
  • seven surgical procedures including tracheostomies, open reduction internal fixation of fractures and the placement of a mesh crib graft in the mandible defect with a metal bar that visibly protrudes from the cheek

Plaintiff remains in chronic pain with a severe mandibular symphysis deformity, needs a vascularized tissue graft, suffers from numbness, nerve damage and headaches,  is on strong pain medications and has obvious and significant facial scarring.

The defendant argued that the jury’s award was adequate because plaintiff had “minimal past pain and suffering and relatively minor future pain and suffering.” In this regard, defendant asserted that plaintiff (a) was suffering from heavy alcohol intoxication at the time of the battery and therefore felt little pain and (b) has been using pain medication and therefore his ongoing pain and suffering was significantly reduced or minimized.

Inside Information:

  • The trial judge agreed with plaintiff that the damages verdict was improper but his remedy was an overall new trial on damages (as opposed to the appellate court’s determination to go right ahead and order a conditional increase). In post-trial proceedings, the judge stated: “The jury’s recognition that plaintiff would suffer future pain and suffering can only follow the logical conclusion that the future must necessarily have had a past.”
  • Immediately after the incident and before his hospitalization, plaintiff sat on his couch, drank beer, smoked cigarettes. At the hospital, he was combative, attempted to leave and tried to refuse treatment.
  • The defendant was charged with felonious assault but the charges were not pursued.
  • The earlier appellate ruling – that the justification defense could not be considered by the jury – was by a 3-2 divided court. The Court of Appeals will soon weigh in on that issue.

Shoulder Injury Pain and Suffering Claim Undervalued by Jury

Posted in Shoulder Injuries

On August 8, 2010, Juana Santana was grocery shopping near the vegetable table at Western Beef Supermarket in Staten Island when she slipped, fell and injured her shoulder.

Western Beef at 425 Bay Street, in Staten Island

Claiming that her fall and injuries were due to the market’s negligence in allowing its employees to manually spray the vegetables with water which then dripped onto the floor,  the retired 68 year old Ms. Santana sued.

Defendant offered only one witness during the liability phase of the trial  – a manager who was not working at the market at the time of the accident. The witness was precluded from testifying. Without any testimony to rebut plaintiff’s version of the accident, the trial judge directed a verdict as to full liability on the part of the defendant.

In the damages phase of the trial, the jury returned a verdict in plaintiff’s favor for pain and suffering in the sum of $20,000 (all past – four years). Plaintiff’s attorney immediately requested that the trial judge set aside the verdict because of the failure to award any damages at all for future pain and suffering. The judge granted the application. An appeal followed.

In Santana v. Western Beef Retail, Inc., (2d Dept. 2015), the appellate court affirmed the trial judge’s order setting aside the verdict because the failure to award any damages for future pain and suffering was inconsistent with the evidence that plaintiff’s shoulder injury was permanent.

Here are the injury details:

  • Full thickness one centimeter tear of rotator cuff
  • Torn anterior labrum with displacement
  • Arthroscopic surgery on 12/29/10 (a) to  debride the rotator cuff and (b) to repair the labrum with stitches and an anchor
  • Permanent restricted range of motion, pain, tenderness and limitations

shoulder_labral_tear_treatment01

The defendant’s expert orthopedic surgeon opined that plaintiff “healed fairly well” and that whatever restrictions, pain and limitations she had were not severe. He did, though, concede that plaintiff’s injuries are permanent.

Plaintiff testified that as a result of her injury she feels like her “shoulder is going to fall off” and that she cannot clean her house, get dressed without assistance, hug her granddaughter or travel much outside her home all due to pain.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $300,000 for past and future (18 1/2 years) pain and suffering. The defendant has now agreed to pay $160,000 in full settlement after plaintiff, holding firm to a settlement demand of $160,000, rejected its offers during trial in the sum of $60,000 and then $100,000.
  • After the verdict, defense counsel spoke with the jurors and said that some indicated they believed plaintiff was not credible and that this informed their decision as to the (minimal) damages award.
  • The jurors saw two videos – one was a store video that depicted plaintiff slipping and falling, the other was taken by plaintiff’s daughter showing plaintiff with water on the floor.

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

Posted in Ankle Injuries, Leg Injuries

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

MacDonough Street in Brooklyn (345x170)

The Accident Site – MacDonough Street in Brooklyn

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

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

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

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

 

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

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

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

Inside Information:

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