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

On December 26, 2003, a 37 year old nurse was involved in a car accident at an intersection in the Bronx when a Salvation Army van slammed into her car causing a herniated disc in her neck and nerve damage to her right arm.

It wasn't this van but probably one similar:

The van driver, Anita Peterson, claimed she had a green light and that the accident was caused by the other driver, Tara Kelly; however, on August 1, 2008, in Kelly v. Peterson (Supreme Court, Bronx County; Index #18607/04), a jury found that the accident was caused wholly by Ms. Peterson. A few months after that finding, on November 12, 2008 a new jury was empaneled to determine the amount of damages to which Ms. Kelly was entitled.

At that point, it was clear to all that Ms. Kelly would be awarded a large sum for her pain and suffering. As a result of the crash, she had undergone surgery – an anterior discectomy at C5-6 and a fusion of the two vertebrae at that level. The fusion involved the placement of a bone graft in the spine where the disc had been and the fixing of a plate with screws into the bone to prevent the bone graft from moving out of place.

Additionally, objective medical tests showed that plaintiff had suffered denervation in her dominant right arm leaving her with a permanent 30% loss of use.

Courtroom observers say that this case could have been settled for about $750,000 before the verdict in the damages trial but that the defense hadn't offered more than $500,000 to settle. So, the damages trial went forward and in the end the jury awarded $7,000,000: $5,000,000 for pain and suffering ($2,000,000 past – 5 years, $3,000,000 future – 48 years) plus $2,000,000 for future medical expenses.

The defendants then asked the trial judge to set the entire verdict aside as excessive and order a new trial on damages.  In her post-trial decision dated October 5, 2009, the Hon. Sallie Manzanet-Daniels (now an appellate court judge) declined to disturb the jury’s pain and suffering awards; the only modification she made was a reduction of the future medical expense recovery from $2,000,000 to $285,000 which was the amount plaintiff’s counsel had proven and asked for in his summation.

It's fair to say that the Salvation Army had the bell rung against it when the jury returned its verdict.

Court records now indicate that this case has just settled but the amount is confidential. Facing a verdict in excess of $5,000,000, with interest mounting at the rate of 9% per year since the date of the liability trial verdict (as provided for in New York's CPLR 5002), the defendants were no doubt finally anxious to settle and they probably paid less than the verdict amount but far more than the amount for which this case could have been settled before trial.

In my opinion, the $5,000,000 pain and suffering verdict in this case would have been reduced by the appellate court based on its review and analysis of prior cases. Here are some of the prior appellate court decisions dealing with fusion surgery pain and suffering, any one of which might have been relied upon or cited as support for a finding that the $5,000,000 award to Ms. Kelly was excessive.

Sanango v. 200 East 16th Street Housing Corp. (2004)- $2,452,000 pain and suffering verdict ($1,000,000 past – 6 years, $1,452,000 future – 29 years) for a construction worker who fell 15 feet from a ladder and sustained multiple fractures of his cervical and thoracic spine, a concussion, a torn rotator cuff in his shoulder and nerve damage to his eyes. He underwent spinal fusion surgery and at trial his neck was still in a brace and he was still suffering from significant limitations of mobility and continued pain. His poor prognosis was further complicated by the separation of a pedicle screw that presented the risk of further surgery due to migration of the fragment. Finally, because of the fragment’s location, surgery to repair the torn rotator cuff was contraindicated.

Diaz v. West 197th Street Realty Corp. (2002) - $1,350,000 pain and suffering award for a 29 year old mail carrier in a slip and fall accident who sustained a fractured transverse process at L-3 and a herniated disc at L5-S1 requiring posterior spinal fusion with iliac bone graft. She claimed she was totally disabled, could not walk without limping and required chronic pain management. The jury’s verdict for pain and suffering was $8,250,000 ($5,500,000 past – 3 ½ years, $2,750,000 future); however, on appeal those figures were found to be grossly disproportionate to awards in factually analogous cases.

Lewis v. Port Authority of New York and New Jersey (2004) - $1,500,000 pain and suffering award ($500,000 past – 6 ½ years, $1,000,000 future – 42 years) for a 31 year old plaintiff in a motor vehicle accident who sustained injuries to her back, hip and legs requiring fusion surgery to repair her sacroiliac joint. She also suffered from post-traumatic stress syndrome and depression (confirmed by the defense neuropsychiatrist). The jury had awarded $4,500,000 for pain and suffering but the appellate judges ruled that to be disproportionate (citing the Diaz case).

Inside Information:

• Ms. Kelly appears to be what I like to call a trooper – she returned to work as an intensive care unit nurse as soon as she could both after the accident and after her surgery three years later and she didn’t miss much time from her job. Juries tend to love that type of can-do attitude and, conversely, hate those they conclude are malingerers.
• The defense claimed that plaintiff’s injuries were not severe and in closing arguments to the jury suggested that $150,000 would be a fair pain and suffering award (plaintiff’s attorney asked for $5,000,000). Shortly after the jury began deliberating, the judge received a note asking whether there was a maximum they could award. Half an hour later, they returned their $7,000,000 verdict ($5,000,000 for pain and suffering plus $2,000,000 for future medical expenses).
• The jurors were treated to a blistering cross-examination of defense neurologist Ramon Valderrama, M.D. who had examined Ms. Kelly for five minutes two and a half years before trial. He testified that plaintiff’s neck range of motion was entirely normal, even though he had not conducted any such tests and admitted on cross-examination that he saw Ms. Kelly only four months after her fusion surgery and that normal range of motion simply does not return so early.
• Perhaps the most stunning moment in the trial occurred when one of New York’s top trial attorneys, Michael Jaffe of Pazer, Epstein & Jaffe, P.C. (plaintiff was also represented by the preeminent Jeffrey S. Stillman of Stillman & Stillman, P.C.), confronted the defense doctor with a report he wrote in an unrelated case, involving different injuries, in which his findings in 12 paragraphs of the report were identical, word for word, to the report he prepared for Ms. Kelly in this case. It was clear to even the casual courtroom observer that Dr. Valderrama was decimated by Mr. Jaffe, this was a turning point in the trial and that defense counsel was overmatched by plaintiff's attorneys.

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On November 20, 2001, Yuko Yamamoto, a 37 year old registered nurse, was walking to work in Manhattan when she was struck and knocked to the ground by a taxicab. In her lawsuit to recover pain and suffering damages for her resulting neck injury, a judge determined that no trial would be needed on the issue of liability because it was obvious that the accident was wholly the fault of the taxi driver.

The only issue that required a jury, therefore, was the amount of damages to which the plaintiff was entitled. Ms. Yamamoto presented to the jury a somewhat typical fact pattern for people who have sustained non-catastrophic, non-fracture injuries in motor vehicle accidents:

• complaints of neck and/or back pain, ambulance to the hospital, x-rays negative, treated and released to home within a few hours
• follow-up medical treatment within a day or so
• a short period of missed work (here, eight days),
• extensive chiropractic treatment over the ensuing years (here, three years)
• positive test results such as a nerve conduction study and an MRI with significant findings (here, herniations and bulges at C3-7 with radiculopathy, pain and weakness)
• range of motion deficits objectively measured (here, as much as 50% loss of extension)
• continuing complaints of pain and disability but no surgery as of the trial date

Here are the areas injured in the case of Ms. Yamamoto:

Many cases with fact patterns like those above are routinely dismissed before trial because judges find that the plaintiffs’ injuries do not meet the so-called “serious injury” threshold required in car accident cases under New York’s Insurance Law Section 5102 (d).

The defendant in Ms. Yamamoto’s case sought such a dismissal but his motion for summary judgment was denied in November 2007 because, the judge held in Yamamoto v. Carled Cab Corp., there appeared to be enough facts so that a jury could conclude that Ms. Yamamoto’s injuries met the statutory standard. At the same time, the judge granted plaintiff summary judgment finding that the accident was wholly the fault of the taxi driver.

This is what a herniated cervical disc looks like:

At trial, plaintiff established and the jury found that she suffered a serious injury in that she had a significant limitation of a body function or system (her cervical spine) and also a permanent consequential limitation of her cervical spine.

After plaintiff’s attorney requested a total of $500,000 in damages, on February 6, 2008, the jury awarded her $175,000 as follows:

• $50,000 for past pain and suffering (almost six years)
• $ -0- for future pain and suffering
• $5,000 for past medical expenses
• $120,000 for future medical expenses

On appeal, the defense argued that the future medical expense award was speculative and should be tossed out and also that the jury acted properly in declining to award anything for future pain and suffering.

Plaintiff argued that the future medical expense award was fair and proper (her chiropractor had testified she’ll need about $6,000 a year in treatment and testing for an unspecified period) and that the failure to award anything at all for future pain and suffering was unreasonable. Plaintiff suggested that an award of $300,000 for future pain and suffering would be reasonable and should be ordered or else there should be a new trial on that issue.

In an appeals court decision this week, the jury’s verdict was affirmed in its entirety. The judges stated that the failure to award any damages for future pain and suffering was supported by the evidence which showed plaintiff had:

• not altered her lifestyle,
• still worked the same job,
• cared for her young child and
• participated in her daily activities.

Addressing the apparent inconsistency in the jury’s award of substantial damages for future medical expenses but noting for future pain and suffering, the appellate judges stated that the jury could have concluded that funding regular chiropractic treatments would alleviate plaintiff’s future pain. This is an amazing statement. And it is inherently illogical. The court is saying that medical treatment will be necessary for 20 years and defendant should pay $120,000 for such treatment but that plaintiff will have no pain in the future because the treatment for her pain and disability will be paid for. That makes no sense.

If substantial medical treatment is needed in the future that’s because plaintiff will be in pain and somewhat disabled; otherwise there’s no need for the treatment and the $120,000 award should have been overturned. If, however, the treatment is needed then that’s because there’s expected to be some pain and suffering in the future.

Some award for future pain and suffering – anything but nothing – was required. The jury's failure to award anything for future pain and suffering in this case was, at a minimum, inconsistent with its substantial award for future medical expenses.

As we recently discussed, here, this very same appeals court just a few weeks ago overturned a jury verdict in a New York personal injury lawsuit where it found that the verdict was inconsistent and appeared to represent the jury's attempt at compromise in a case with questionable liability and significant damages. And the same court in Lamanna v. Jankowski (2008) made the same finding where a jury found "permanent consequential limitation of use" yet failed to award any future pain and suffering damages. A different appeals court (the Appellate Division for the Second Department) recently ruled that the failure to award any damages for future pain and suffering cannot be reconciled with the finding of permanent injury , as we discussed here.

While liability was not at all questionable in Yamamoto v. Carled Cab Corp., it does appear that either the jury engaged in an impermissible compromise or that its verdict as to future pain and suffering was simply against the overwhelming weight of the evidence (evidence that the jury itself found required an award of $120,000 for medical treatment expenses over a 20 year period). In any event, the verdict was wildly inconsistent.

Ms. Yamamoto must be justifiably perplexed and upset with the court's ruling denying her future pain and suffering claim and she's likely considering a motion to appeal this decision to the state's highest court, the Court of Appeals. Under CPLR  5602 , however, the standard for granting such a motion is quite strict and the prospect of success is dim. We will follow this case for significant developments.

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New York firefighter Kevin Deane was skiing in lovely Vail, Colorado on April 1, 2007 when he fell and suffered a spinal cord injury requiring cervical discectomy and fusion surgery that was performed there without complication. When he flew back to New York City to undergo rehabilitation at Mount Sinai Hospital on April 6th, tragedy ensued. Kevin was admitted to the hospital that afternoon (a Friday) and he died about 60 hours later at 2:30 a.m. on April 9th (a Monday). He was 39 years old.

The cause of death was hemorrhage and aspiration of blood caused by the erosion of the surgically implanted hardware into the esophagus.

Here is what the hardware in the neck looks like after fusion surgery:

Claiming that this was a preventable death, a wrongful death lawsuit was filed against the hospital seeking not only damages for negligence but also punitive damages. It's extremely rare that a punitive damages claim (in which plaintiffs must prove reckless indifference) is even allowed to be considered by a jury in a medical malpractice case. And that's what the hospital argued here in making a motion to dismiss that part of the suit; however, the judge disagreed - strongly - and issued a decision released this week in Deane v. Mount Sinai Hospital. The punitive damages claim was allowed to proceed and be considered by the jury.

The judge stated that the hospital appeared to have made the following tragic mistakes:

• after his admission, no attending physician ever saw Mr. Deane during the 2 1/2 days at the hospital
• the weekend on call attending physician never showed up because he didn't get a hospital email advising him he was on call and no one followed up to tell him
• the other on call attending was unaware that her colleague had failed to show up for work and unaware that half of the 100 rehab patients (including Kevin Deane) were not under the care of an attending

It angered the judge that Mr. Deane was, as she described it, effectively abandoned for over two days prior to his death and that no one ever even tried to tell hospital administration that the on call attending was missing. This appeared to constitute gross negligence, recklessness and gross indifference to patient care as did the hospital's lack of a system in place that would alert an administrator when an on call attending failed to arrive. Although this was merely a pre-trial decision on a motion to have the punitive damage claim dismissed, the judge's strong language all but held as a matter of law that the hospital was reckless.

The decision was rendered two weeks before the trial date. Not surprisingly, the case settled (for an undisclosed amount) before the jury was picked.

Inside Information:

• Mr. Deane was unmarried and without children and therefore the damages that could have been awarded in this case were pretty much limited to those for his pre-death conscious pain and suffering during his 2 1/2 days at the hospital [the length of time a decedent suffers before death will greatly affect this element of damages, as we discussed, here and here]
• punitive damages against an employer (here, the hospital) for acts of its employees (here, the medical staff) are imposed only where management has authorized or participated in the reckless conduct - in this case plaintiff would have claimed that management's inaction regarding the faulty email notification system warranted a punitive sanction

Even though the judge felt there was recklessness in this case, it would have been up to the jury to make that finding, or not. And because punitive damages are so rarely awarded in New York medical malpractice cases, and the standard of proof is so high and strict, there may have been a successful defense appeal of such an award had it been made.

One thing is perfectly clear, though: this was a tragic death and no amount of money can ever rectify the loss to the family of this young man.

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On March 6, 1997, Louis Ferrigno, a 29 year old carpenter, was driving on a county road in New York when a large tree fell onto his car and crushed it causing him severe head and neck injuries.

Ten years later his case against the county for negligence came to trial. His claim was based on the fact that the tree was diseased and decayed and the county either knew about it or should have known about it and in either case should have removed the tree so that it would not be a hazard.

The jury found for the plaintiff on liability and then proceeded to award him $2,600,000 for his pain and suffering damages ($2,000,000 past, $600,000 future).

On appeal, this week, the court in Ferrigno v. County of Suffolk upheld the liability verdict. In the decision, there was a discussion of the law on negligence as to roadside trees falling and whose responsibility that is and why. In doing so, the court cited prior cases and discussed the facts in this case.

But as to the damages verdict, the appeals court only stated that the past pain and suffering verdict should be reduced to $750,000 and then concluded with these meaningless words:

The damages awarded to the plaintiff for past pain and suffering are excessive to the extent indicated herein, as they deviate materially from what would be reasonable compensation (see CPLR 5501 [c]).

That's it. Nothing about what the injuries were. Just a statement of the amounts the jury awarded for past and future pain and suffering and the amount for past pain and suffering that the appellate court felt was proper but not a clue as to what the young man went through insofar as physical injuries, no citations to case precedent as to damages and no indication why the court felt the $2,000,000 past pain and suffering verdict should be reduced to $750,000.

Failing to give the public facts upon which appellate courts reach their decisions as to pain and suffering damages is unfair both to the lawyers who rely upon the appellate court decisions for precedent and to non-lawyer citizens (by whose tax dollars, after all, the judges are hired and paid). We are all entitled to know how these august bodies make their decisions. 

And in this case, we were entitled to know why the judicial panel reduced a jury's $2,000,000 verdict for pain and suffering to $750,0000. This absence of information must change.

For the record, as we lawyers say, here's what Mr. Ferrigno went through:

• extreme pain and fear of imminent death while pinned inside crushed car waiting to be extricated by "jaws of life" tools and flown by helicopter to hospital
• eight inches of staple stitches across head
• skull fracture
• permanent neck pain and migraine headaches and

          plaintiff sustained a compression fracture of his cervical spine at C7

And the defense argued that the $2,000,000 was excessive and that Mr. Ferrigno's injuries were not so bad, because:

• plaintiff did not undergo any surgery
• loss of work and confinement to home was only six months
• the C7 compression fracture had healed (according to the American Academy of Orthopedic Surgeons many compression fractures are minor and need only six weeks of immobility in a cervical collar)
• physical therapy was needed for only three months
• plaintiff was only treated by a physician seven times in the years after the accident
• plaintiff was out of work for only six months and made no claim for future loss of earnings (indicating his injuries were not permanently disabling)

So now you know the facts about the injuries but we still don't know:

• which ones were important to the appeals court,
• what if any case law precedent was relied upon and
• how this case insofar as damages is concerned should be used in the future by lawyers and injured people to evaluate injury claims that are similar.

The appeals courts must stop refusing to explain their reasoning in cases that address an increase or decrease in jury verdict pain and suffering damage awards.

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