New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

A 35 year old healthy construction worker was helping to build a new Lowe's Home Depot in Orangeburg (Ulster County), New York on November 14, 2002 when he fell off the roof 22 feet striking his head on the ground below.

After 63 days in the hospital (57 of them in a coma), 11 surgeries and 65 more days in a rehabilitation hospital,  Robert Doviak was left totally and permanently blind, with a sense of touch that was seriously compromised, partial loss of hearing and no sense of smell or taste. Additionally, he had substantial orthopedic injuries including fractures of his left femur, several cervical vertebrae, both zygomatic arches and other bones in and about his face and eyes, his left hand and his right wrist.

Doviak's wife hired Finkelstein & Partners, a well known personal injury law firm in Newburgh, New York and they began a lawsuit against Lowe's and others based on New York's Labor Law which provides that owners of commercial buildings under construction are liable for injuries suffered by workers when they involve falls from heights. A judge granted plaintiff's motion for summary judgment on liability grounds and the case then proceeded to a jury trial to determine the amount of damages.

In Doviak v. Lowe's  Home Centers, Inc., an Ulster County jury found that plaintiff was entitled to $1,000,000 for his pain and suffering ($200,000 past; $800,000 future - 32 years) plus additional amounts for his lost earnings and medical expenses and his wife's loss of consortium. The jury's total award for all elements of damages was thus $3,700,000.

Since each element of a future damages verdict that is more than $250,000 must under New York law (CPLR 5014) be calculated to present value (usually resulting in a significantly lower figure) before a judgment is given to a plaintiff,  the $3,700,000 jury total really represented only about $3,000,000 for the plaintiff.

In a post-trial motion, the pain and suffering award was found by the trial judge to be unreasonably low and a new trial was directed to be held unless defendants agreed to increase the pain and suffering sum to $4,100,000 ($1,200,000 past and $2,900,000 future). Plaintiff appealed and the appeals court this week (properly relying, in part, on Villaseca v. City of New York, a loss of vision case we discussed here) added another $1,000,000 to plaintiff's future pain and suffering award which is now $5,100,000 ($1,200,000 past; $3,900,000 future). The new total (including the earnings, medical expenses and consortium claims) is $9,300,000 - a present value of about $7,000,000.

As always, and especially in catastrophic injury cases like this one, no amount of money ever makes  the injured plaintiff feel like the whole thing was worth it. Neither $7,000,000 nor $100,000,000 would be enough for any sane person to undergo what Robert Doviak has undergone and will suffer with for the rest of his life.

Now for the inside information. During the trial, the defendants offered on the record to settle for a present value of $9,250,000. Plaintiff's then attorney, without plaintiff present, rejected that offer on the spot. The next day, the defense increased the settlement offer to $10,000,000. Again it was rejected. Finally, still before the verdict, the defense made a final settlement offer -  $12,000,000. Doviak says the offer was rejected by the Finkelstein firm without bothering to consult him.

Did Doviak's lawyers fail to inform him of the $12,000,000 offer?

After the trial, the plaintiff fired Finkelstein and hired two new firms. Levy Phillips & Konigsberg (a New York City personal injury law firm best known for its extensive advertising about and its mass representation of plaintiffs in asbestos exposure lawsuits) was hired to handle the appeal decided this week. Another firm was hired to sue the Finkelstein firm for malpractice. In the malpractice suit, Finkelstein & Partners admits that the $12,000,000 offer was made but denies it acted improperly.

Doviak and his new attorneys are claiming that errors were made by Doviak's trial counsel which cost Doviak  $7,000,000 ( the difference between the settlement offer and the final appellate court figures). Here are some of the matters relevant to the ongoing malpractice dispute:

•  significant settlement offers must be conveyed to clients and if rejected then the rejection should either be on the record or in writing (with a full explanation of the consequences also on the record or in writing)
•  attorneys (and their injured clients) should not let greed serve as the foundation of a personal injury lawsuit - during summation, Doviak's attorney asked the jury to award Doviak $60,000,000 for pain and suffering, an amount Doviak's new attorneys say is preposterous and evidence of awful advocacy and which defense counsel says revealed the greed that served as the foundation of plaintiff's case

As the attorney malpractice case progresses (and surely it will move quickly now that the appeals court has ruled on the propriety of the verdict figures), we will report on claims, defenses and developments.

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It never ends, does it? Another careless person fell onto the New York City subway tracks and was grievously injured. Then he lawyered up, sued the city and a Brooklyn jury recently found the city's motorman 70% at fault with the result that the injured fellow was awarded $5,950,000 for his pain and suffering.

Walter Olson's Overlawyered follows these types of cases better than anyone, he finds cases no one else does and he points out the policy considerations we should be thinking about but juries don't. And we have recently addressed the whole issue of subway accidents and resulting large jury verdicts.

In this case,  Sanders v. New York City Transit Authority (Index # 34003/03; Supreme Court, Kings County; 3/6/09), the jury heard evidence that on December 12, 2002, James Sanders fell onto the tracks as a subway car in Brooklyn was coming into the station at about 15 mph. The jury was also apprised of the facts that Sanders had been returning from methadone treatment and had drunk pure rum before entering the station (a fact he initially denied).

Then, there were these additional facts:

• Sanders could not recall why he fell
• the motorman's speed was no more than 15mph
• witnesses testified that the train was no more than 20 feet away when Sanders fell onto the track

This is what it must have looked like just before impact:

So how could any jury conclude that the 41 year old Sanders was not 100% at fault for his own injuries? The answer: the "last clear chance" doctrine. That's a long established legal principle, related to the concept of comparative negligence (the apportionment of negligence between plaintiff and defendant) that says a plaintiff may win when, despite the plaintiff's own negligence, the defendant was aware of the danger faced by plaintiff and negligently failed to take available means to avoid the accident.

The defense argued that the train's motorman could not have seen Sanders until it was too late and that the last clear chance doctrine was inapplicable. After six days of trial, the jury disagreed and found plaintiff only 30% at fault.

As I said, the injuries were grievous, including:

• right leg amputation at the knee
• nerve damage causing permanent blindness in one eye

Clearly, the injuries sustained and the pain and suffering Mr. Sanders will endure for the rest of his life are enormous. Therefore, I hesitate to mention, but many have this opinion, so it must be asked:

Wouldn't accidents like this be eliminated by waiting for the approaching subway car away from the platform, in the area of this woman?

And then there is a significant policy issue too. Should a plaintiff whose own negligence contributes to an accident and his own injury be permitted to recover money damages from a defendant who is also partially at fault. New York has long said yes and juries simply assign respective percentages of fault to the plaintiff and defendant and then the plaintiff recovers accordingly. In other states, such as Virginia, where prominent personal injury attorney Doug Landau discusses this issue and this very case, there would be no recovery at all for a plaintiff found to be as little as 1% at fault.

The "gross" pain and suffering award (i.e., the total before reduction for plaintiff's percentage of fault) was $8,500,000 ($2,500,000 past; $6,000,000 future). Applying a 30% reduction results in a $5,950,000 pain and suffering verdict for the plaintiff.

As is often the case, both in big damage cases like this one and in cases in which plaintiff's own conduct appears to be instrumental in an accident, there will be an appeal. We will follow this case as it makes its way through the appeals process and report back with any significant dvelopments.

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The New York City Law Department has released statistics regarding negligence lawsuits against it in 2008 and the top recovery was for an eye injury to a school guidance counselor in the case of Villaseca v. City of New York.

The New York Post reports it this way:

"$8.5 million to a guidance counselor Rodrigo Villaseca, who lost vision in this right eye after an emotionally disturbed kindergartner slammed a broken door in his face at PS 306 in The Bronx."

The door was broken for over a year after the city school knew that the door's hydraulic controller was not operational. This was a $55 part that was specifically installed so that the door could not be slammed shut - a particularly useful device given that this was the only door into a room where the most uncooperative and unruly kids were placed until they calmed down.

Here's the piece of equipment that would have saved the city $8,500,000 for a mere $55 cost:

  Source: DrillSpot, Inc.

In reporting on the $403 million total of negligence awards against the city for last year, the paper mentions several other large suits as well and notes that the total is a 6%  spike over the year before. I don't know whether the reporter was insinuating that the Villaseca case (and the others) are so-called runaway or excessive verdicts or whether she is suggesting, as others such as The Pacific Research Institute and NYTortReformNow.org do, that New York has an unfair and unreasonable litigation environment for defendants in negligence cases due in part to there being no limit (or "cap") on pain and suffering damage awards. I do know that issues such as whether there are too many or too few negligence lawsuits, whether plaintiffs are awarded too much or too little for their pain and suffering and whether damage caps would be fair or even accomplish what its advocates seek are all hotly disputed. For the plaintiffs' side of these issues see: New York State Trial Lawyers Association and TortDeform.com

In the Villaseca case, I can say with confidence that, as usual, a short media account cannot and will not explain even one-half of what happened and why such a multi-million dollar pain and suffering recovery makes sense.

Here are the injuries Mr. Villaseca suffered:

• detached retina of the right eye
• lost all vision in right eye after 9 surgeries
• constant pain
• need for surgical implantation of false eye

Source: VitreoRetinal Surgery, P.A.

Enough? No, there's more:

• the teacher had a pre-existing macular hole condition in his other eye that left him with only peripheral vision in that other eye and the result was extremely limited vision of any kind at all
• inability to work
• need to have his wife help him move about

The Bronx County jury was apparently so impressed with and upset by these injuries that it awarded Mr. Villaseca $8,000,000 for his pain and suffering damages alone. An appeals court found that $5,000,000 was the proper pain and suffering amount (and with an additional $3,500,000 mainly for lost earnings and medical expenses the total was therefore $8,500,000).

Other recent cases involving significant pain and suffering damage awards for eye and vision injuries include:

• Wilson v. Galicia Contracting & Restoration Corp. (2008) - $700,000 pain and suffering award for a 16 year old boy who was struck in his left eye by a falling metal object. After surgery to remove the object, he was left with permanent retina damage.
• Fresco v. 157 E. 72nd St. Condominium (2003) - $2,000,000 pain and suffering verdict for a 35 year old laborer with complete blindness in one eye from a carpentry accident in which a nail flew into his eye. He had a pre-existing condition in his other eye with the result that he's now left nearly totally blind.
• Torricelli v. Pisacano (2004) - $500,000 pain and suffering medical malpractice award after cataract surgery failed requiring two more surgeries and significant overall vision deterioration.

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