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

Luis Ramos was sitting in a parked car in the parking lane, on Claremont Parkway in the Bronx on September 24, 2001. He had been waiting for his son when he decided to exit the car. After opening the driver side door about six inches, his car was struck by a passing city bus.

Ramos was sitting in a 1987 Ford Thunderbird:

Ramos was thrown to the other side of the car and claimed he hurt his back.

Ultimately, Ramos sued the transit authority and on May 21, 2009, a jury found the bus driver 100% at fault for the accident and awarded plaintiff pain and suffering damages in the sum of $595,000 ($270,000 past - 8 1/2 years, $325,000 future - 9 years). Both the liability finding and the damages award were upheld on appeal last week in Ramos v. New York City Transit Authority (1st Dept. 2011).

As indicated in the decision, plaintiff was 59 years old at the time and he sustained multiple herniated discs in his lumbar spine that required a combined discectomy, laminectomy and spinal fusion four years later.

In a laminectomy, the surgeon removes the bony back wall of the affected spine, called the lamina and then in a discectomy, the surgeon removes the disc itself:

 And here's what the spine looks like after the lumbar fusion surgery with the insertion of a metal plate and screws:

In the appeal, the defense argued, unsuccessfully, that (a) the liability verdict should be reversed because plaintiff should have seen the bus before he opened his car door into traffic and (b) in the alternative, the jury should have apportioned some of the fault to plaintiff because they found he was negligent (but that his negligence was not a proximate cause of the accident).

As to damages, the defense argued that the jury award was excessive in view of plaintiff's preexisting conditions:

• degenerative disc disease (when aging discs become stiff and dry out)
• scoliosis (a sideways curvature of the spine)
• syrinx (a cavity in the spinal cord formed by cerebrospinal fluid)

Plaintiff successfully countered each of the defense arguments as to damages through the testimony of his expert neurologist who stated that:

• both the scoliosis and the syrinx were in plaintiff's cervical spine and the likelihood that either of these conditions affected plaintiff's lumbar spine was extremely remote
• plaintiff showed no symptoms of preexisting low back pain problems and the fact that he had been diagnosed with degenerative disc disease two years before ths accident was of no consequence because there was no evidence (such as an MRI) that Ramos had a herniated disc before the accident
  

Inside Information:

• Ramos refused medical treatment at the scene, reported to work that night as a doorman in an apartment building, continued to work for  a few more days and did not seek any medical attention at all until three days later when he presented to a neighborhood clinic complaining of significant lower back pain.
• There were only three witnesses at trial - plaintiff, a police officer and plaintiff's medical expert, neurologist Ringa Krishna, M.D. The defense produced neither its bus driver nor any medical expert to rebut plaintiff's claims and proof as to causation, pain, disability and permanency.
• Unfortunately, the surgery failed and plaintiff's condition got worse. He was diagnosed with chronic nerve damage and arthritis in his spine causing permanent low back pain and making it difficult to walk. Ramos never returned to work.
• Plaintiff was granted a missing witness charge as to the defense physician who was engaged before trial but did not testify at the trial - the jury was told that it may infer that the defense doctor would not have supported the defendant's position with respect to the medical issues and would not contradict the plaintiff's medical evidence.

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On July 28, 2005, James Coleman was working as a subway track worker repairing tracks for the New York City Transit Authority (the TA). He was on a hydraulic lift platform that collapsed causing him to fall 25 feet to the ground below.

Workers on a hydraulic lift:

Coleman sued the TA for the serious injuries he sustained to his neck and back, including multiple bulging and herniated discs.

New York's Labor Law Section 240(1) generally imposes absolute liability upon premises owners when a worker engaged in repair work is injured in a height related fall due to inadequate safety devices. Accordingly, summary judgment was granted to Coleman in 2007 and his case proceeded to a damages only trial in 2008.

On November 7, 2008, a Bronx County jury awarded Coleman pain and suffering damages in the sum of $2,100,000 ($600,000 past - 3 years, $1,500,000 future - 20 years). The TA appealed, successfully arguing that the award was excessive.

MRI reports showed that Coleman sustained the following spinal disc injuries:

• herniated disc at C4-5,
• bulging annulus fibrosis at C5-6
• herniated disc at L5-S1.

The defense doctors and attorney argued that plaintiff's injuries were minor and any significant complaints of pain or disability he had were due only to degenerative changes in his spine.

EMG testing and nerve conduction studies, though, showed nerve injuries - radiculopathy at C5 and C7.

Plaintiff testified as to his current pain and limitations:

• constant pain which radiates down his right leg
• still takes narcotic medication
• gets steroid injections for his back pain
• cannot work
• cannot engage in sports he enjoyed such as bowling and basketball
• cannot carry shopping bags

Coleman never had any surgery for his injuries in this case but his doctor recommended that he undergo neck and back surgery - either a discectomy or laminectomy with fusion - if his symptoms continued unabated by conservative treatment.

In Coleman v. City of New York (1st Dept. 2011), the future pain and suffering award was reduced by $300,000. The total pain and suffering award now stands at $1,800,000 ($600,000 past, $1,200,000 future).

The only case on damages cited by the appellate court was Urbina v. 26 Court Street Assoc., LLC (1st Dept. 2007), a knee injury case that we discussed here. That case is not particularly relevant inasmuch as it ordered a reduction of the jury's pain and suffering award in the sum of $3,500,000 to $2,200,000 for a 31 year old man who sustained a severely fractured patella and a torn meniscus that required three surgeries.

Prior cases on damages that are relevant (i.e., that dealt with herniated disc injuries without surgical procedures as of trial) but were not even mentioned by the appellate court include:

• Lauro v. City of New York (1st Dept. 2009) - $810,000 affirmed for 49 year old with herniated discs at L4-5 and L5-S1
• Spetter v. Alliance Towing Corp. (1st Dept. 2009) - $230,000 affirmed for herniated disc at C6-7
• Sanabia v. 718 West 178th Street, LLC (1st Dept. 2008) - $300,000 (reduced from $400,000) for 57 year old with herniated discs at C3-4 through C6-7
• Browne v. City of New York (2d Dept. 2009) - $625,000 (reduced from $750,000) for 33 year old with bulging discs at C3-4 and C4-5.
• Brown v. City of New York (2d Dept. 2008) - $600,000 affirmed for 60 year old with mechanical back pain due to pulp protruding into his spinal canal
• Deshommes v. Hussain (2d Dept. 2008) - $700,000 (reduced from $1,200,000) for 42 year old with herniated disc at L5-S1 with nerve root compression and several bulges

Inside Information:

• The defense doctor, Robert Orlandi, M.D., an orthopedic surgeon, opined that Coleman hadn't even sustained a herniated cervical disc at all, just a sprained neck and degenerated discs predating the accident by many years.He was argumentative, often laughed derisively and made it clear he wasn't going to agree with questions posed by plaintiff's counsel, even before they were asked. The doctor was admonished by the trial judge repeatedly and defense counsel conceded that Dr. Orlandi was a "rather obstreperous witness" who made "wild and unsubstantiated charges" from the witness stand against plaintiff's counsel.
• The jury award for future lost earnings in the sum of $1,500,000 was thrown out by the appellate court because Coleman failed to prove with reasonable certainty that he'd be unable to work and earn at all. The defense conceded that Coleman could not return to heavy labor (he was earning about $45,000 a year with the TA) but pointed out that plaintiff himself never claimed he was completely unable to work and testified he'd tried to work as a mechanic in a motorcycle shop (too strenuous) and inquired about other jobs he thought he could do (no offers). Plaintiff's treating pain management doctor merely testified that he would "venture to say" that plaintiff couldn't go back to work. He was unaware of plaintiff's vocational abilities or education.

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On September 11, 2005, Ydaiza DeCastro fell when her shoe got stuck in a hole in front of the elevator on the fourth floor of the apartment building where she lived at 1760 Andrews Avenue in the Bronx. She fell hard and injured her knee and her back.

The building owner conceded liability for the accident but the parties could not agree on the proper amount of damages for the then 40 year old Ms. DeCastro's injuries so a damages only trial was held in June 2009.

The Bronx County jury rendered a $600,000 verdict for plaintiff's pain and suffering ($350,000 past - 2 years 9 months, $250,00 future - 37 years). The defendant argued that the amount was excessive and formally requested in a post-trial motion that the trial judge reduce the verdict. In his post-trial decision, the judge agreed with the defendant and ordered a conditional reduction to $450,000.

Plaintiff appealed and now, in DeCastro v. Andrews Plaza Housing Associates, L.P. (1st Dept. 2011), the appellate court has reinstated the jury's $600,000 verdict.

As indicated in the appeals court decision, plaintiff sustained a chondral fracture defect in the articular surface of her knee joint that required arthroscopic surgery. She also sustained herniated and bulging discs in her lumbar spine.

Steven Struhl, M.D., plaintiff's knee surgeon, testified that plaintiff sustained a traumatic lesion in an otherwise normal knee. He described the surgery he performed in which he identified damage in the trochlear groove (the concave surface where the kneecap makes contact with the femur), cleaned out loose, damaged and partially detached cartilage and performed a microfracture, a drilling procedure designed to generate new cartilage.

Despite successful surgery, Dr. Struhl opined that plaintiff will need further arthroscopic work and probably a limited arthroplasty (i.e., a partial knee replacement).

Plaintiff testified and described her limitations from the accident. She said she's been unable to continue working as a bus attendant; instead she works part-time doing light cleaning of homes. She could not squat completely or bend or put weight on her knee on the floor; nor could she move as quickly. On a personal level, she could no longer go to the park and enjoy playing with her young children, could not dance and could not wear high heels.

In reinstating the jury' $600,000 pain and suffering award, the appellate court cited three comparable cases:

1. Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) - $650,000 for 76 year old woman who fell and sustained tears to the menisci of both knees requiring arthroscopic surgery on one.
2. Salop v. City of New York (1st Dept. 1998) - $720,000 for a man who sustained a comminuted fracture of his patella requiring open reduction internal fixation surgery and leaving him with permanent pain.
3. Sanabia v. 718 West 178th Street LLC (1st Dept. 2008) - $500,000 (reduced from $600,000) for a 57 year old man who was struck in the head by a chunk of ceiling plaster and sustained four herniated cervical discs, missed five months from work as a packager and neither had nor was expected to have surgery.

 Inside Information:

• In closing arguments, plaintiff's attorney asked the jury to award his client $625,000 while defense counsel argued that plaintiff's injury was "minimal" deserving only "modest compensation."
• The appeals court decision states that plaintiff's doctors testified  "she will require corrective back surgery;" however, there was no such testimony. Her spine surgeon, Jeffrey Klein, M.D., testified that he could not predict and did not know what future spinal treatment plaintiff will have.
• The appellate court decision also states that the trial evidence showed plaintiff sustained a torn anterior cruciate ligament (ACL) in her right knee; however, plaintiff's counsel conceded on appeal that when the knee surgery was performed the doctor visualized the ACL as normal.

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Back in 1999, when Aleksander Janda was hired by ABC Construction Corp. as an asbestos removal worker, he was a Polish immigrant in the U.S. on an expired tourist visa.

Under federal law, the Immigration Reform and Control Act of 1986 ("IRCA"),  it's illegal to hire someone who's not legally authorized to work in the U.S. and employers are required to verify the identify and work authorization status of each newly hired employee.

On October 6, 2005, while working as a laborer for ABC at a third-party's warehouse, then 37 year old Aleksander fell through the roof to the floor 12 feet below and sustained back injuries.

Roof work is dangerous, especially when there is a collapse.

Janda sued the building owner for his physical injuries, medical expenses and loss of earnings, claiming he's totally disabled from the accident. He was granted summary judgment as to liability and a trial addressed only the issue of damages.

The defense argued that:

• the claim of total disability was bogus
• the lost earnings claim was barred in any event under IRCA because Aleksander submitted false documents when he was hired

From the scene of the accident, Aleksander was rushed to the hospital where he was diagnosed with a thoracic spine fracture - an acute burst comminuted fracture at the T12 vertebrae.

Here is the entire spinal cord. The 12th thoracic vertebrae is just above the lumbar spine.

After five days in the hospital, Janda was discharged with a full back brace.  He returned to the hospital two weeks later and was sent to a pain management specialist with whom he treated ever since. Within two years, Janda was diagnosed with an additional back injury -  a herniated disc at L5-S1 with sciatica.

In his lawsuit, the jury heard evidence that Janda had given his employer a false Social Security number but no other evidence as to his citizenship or right to work here. Therefore, the defense claimed, IRCA barred any recovery for lost earnings.

New York appellate cases construing IRCA, such as Balbuena v. IDR Realty LLC (Court of Appeals 2006) and Coque v. Wildflower Estates Developers, Inc. (2d Dept. 2008), have held that undocumented workers who submit false documents to their employers when hired will not be precluded from recovering lost earnings in later work-related injury lawsuits unless the employer was duped into believing the worker was "legal."

The jury accepted plaintiff's argument that his lost earnings claim should not be barred in view of evidence that his employer knew or should have known of his undocumented status and failed to meet its own verification obligations under the statute.

They then awarded plaintiff approximately $2,710,000, as follows:

• $300,000 for pain and suffering ($100,000 past  - 2 years, $200,000 future  - 25 years)
• $355,000 for past and future medical expenses
• $2,055,000 for past and future lost earnings (including 25 years future)

This week, in Janda v. Michael Rienzi Trust (2d Dept. 2010), the appellate judges affirmed the jury's finding that Janda may recover his lost earnings; however, they ordered a $614,000 reduction (mainly because of wage rate calculation errors). Thus, the affirmed award now stands at $2,088,000.

The $300,000 jury award for pain and suffering was affirmed. Given the significance of the back injuries and the lost earnings award, the pain and suffering award appears modest. While Janda had yet to undergo any surgery for his injuries, there was evidence that he had permanent back pain leaving him totally disabled and that he needs two operations:

• thoracic fusion at T12 with multiple rods and screws (needed in 10-15 years)
• laminectomy at L5-S1 (needed now)

Here is what a lumbar vertebrae looks like before and after a laminectomy:

Inside Information:

• The summary judgment order as to liability was made on May 28,2008 with the result that plaintiff is now entitled to 9% interest on his award from that date (about $200,000 a year for well over two years now).
• Each side attacked the other's medical experts at trial. Plaintiff derided defense orthopedist Wayne Kerness, M.D. who's been testifying for 30 years and whose sole source of income is defense work in personal injury litigation; while the defense argued that Shan Nagendra, M.D., plaintiff's neurologist and pain management specialist, ran a medical mill and over-treated his patients.
• The defendant had surveillance video taken to see if the plaintiff was active. A five minute video showed Janda walking about seven blocks from his home to and from some stores. Defense counsel contended in his summation that the video showed plaintiff  "working" and therefore he was not disabled and is entitled to nothing.
• A few months after the verdict,  while waiting for a decision on defendant's post-trial motion seeking to set aside the verdict and/or have a new trial, Janda was arrested on charges related to using someone else's Social Secutiy number. Brett Nomberg, Janda's lawyer, claimed that the arrest was engineered by the insurance carrier liable to pay the judgment hoping that Janda would be deported and unavailable for a new trial. With Nomberg's win this week, there will be no new trial.

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He was known as the "Dentist to the Stars" but at about 9 p.m. on August 8, 2002 then 50 year old Larry Ashkinazy's moped accident changed his whole life. He landed head first on the street, lost consciousness and was rushed by ambulance and admitted to a local hospital.

Driving a moped like this,

Dr. Ashkinazy was traveling at about 20 miles per hour on East 17th Street in Manhattan when he moved right to allow a car to pass and was upended by a 250 pound steel plate Con Ed service box cover that was protruding about two feet into the street from a barricaded Con Ed work site, like this one:

The emergency room record indicated that Dr. Ashkinazy had suffered injuries to his head and neck as well as hand tremors. A neurologist saw him the next day and diagnosed a concussion.

Eventually, MRI studies disclosed herniated discs, the worst in his lower back at L4-5 and a nerve conduction test showed that the nerve impulses traveling to Dr. Ashkinazy's hands had slowed causing a trembling of his hands that persisted to the time of trial six years later and that were so bad that he was unable to hold any instruments and had difficulty holding a bar of soap or buttoning his shirt.

Dr. Ashkinazy's lawsuit against Con Ed took over two weeks in September 2008 but it took the Manhattan jurors less than an hour to return a verdict in plaintiff's favor and award him pain and suffering damages in the sum of $10,478,000 ($2,418,000 past - 6 years, $8,060,000 future - 20 years).

He was also awarded substantial additional sums for past and future lost earnings (about $3,000,000) and past and future medical and nursing care costs (about $1,500,000).

On appeal this week, in Ashkinazy v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2010), the pain and suffering award was deemed excessive and reduced to $5,000,000 ($1,500,000 past, $3,500,000 future). The court affirmed the other awards (lost earnings and medical and nursing care costs).

The plaintiff's attorney called several medical witnesses:

1. a neurologist (who began treating plaintiff the morning after the accident)
2. a neuropsychologist (retained three years after the accident)
3. a primary care doctor(who treated plaintiff before and after the accident)
4. a neuroradiologist

Plaintiff's doctors testified that he sustained several injuries from the accident, including traumatic brain injuries (TBI), that caused:

• structural frontal lobe damage, including axonal shearing
• a substantially reduced overall IQ of 90
• disabling hand tremors
• cognitive impairments, including marked slowness in most verbal responses and short term memory deficits
• severe neck and back pain from the herniated discs

The defense failed to call any medical witnesses at trial. Relying primarily upon cross-examination, defense counsel argued in summation and on appeal that plaintiff's injuries were feigned and/or merely subjective and without any medical basis.

The defense argued that plaintiff's credibility was the most important aspect of this trial and that:

• plaintiff's claimed memory loss - a significant part of his case - was belied by testimony he gave in depositions in this case and at trials in two post-accident malpractice lawsuits against him all of which, the defense claimed, demonstrated that plaintiff has a fine memory when he wants to (the trial judge wouldn't allow  inquiry into the other lawsuits and that ruling was upheld on appeal)
• any hand tremors pre-dated this accident in view of the fact that during a traffic stop a year before this accident a police officer observed plaintiff "shaking" (the trial judge ruled that the officer was not permitted to testify that his report noted "tremors" since that's a medical term beyond the ken of the officer)
• plaintiff was acting for the jury (and was well qualified to do so in view of numerous television appearances he made over the years)

There was little case law that was relevant to the issue of whether the verdict amount was excessive. As discussed here, most of the brain injury cases that have sustained pain and suffering awards in excess of $1,000,000 dealt with one or more of the following: a skull fracture, brain surgery, significant bleeding in the brain, anoxia leading to paraplegia or quadriplegia.

The judges in Ashkinazy v. Consolidated Edison Co. of NY did cite one important case - Paek v. City of New York (1st Dept. 2006) - although they gave no details of the injury or award there. Unjoo Paek was a 35 year old sought after pattern maker at a premier fashion house who fell and sustained a skull fracture and epidural hematoma requiring surgery. Her injuries included seizures, memory loss and dementia. A Manhattan jury awarded her $10,300,000 for pain and suffering that was reduced by the trial judge to $6,300,000 and further reduced on appeal to $4,300,000 ($1,300,000 past - 6 1/2 years, $3,000,000 future - 40 years).

One relevant case that could have been but was not discussed by the parties or the appellate judges is Popolizio v. County of Schenectady (3rd Dept. 2009), discussed by us in some detail, here. It's another TBI case that involved neither a skull fracture nor any surgery and it resulted in pain and suffering damages of $2,100,000 for a 56 year old.

Inside Information:

• There were no eyewitnesses to the accident and the defense claimed that plaintiff's trial testimony (that he hit Con Ed's protruding steel plate) should not be believed because of inconsistent statements he made the night of the accident (a) to an EMT, that he veered into a pile of steel construction material and (b) to a doctor, that he crashed against an industrial garbage can. Clearly, the jury rejected this tack and ignored the alleged inconsistencies.
• In summation, plaintiff's attorney referred to the classic movie, "My Cousin Vinny," and described the defense summation as "bullshit" and Con Ed's work site as the result of a "shitty" job, done because of a lack of concern about construction sites.
• Attacking Dr. Ashkinazy's credibility failed. Defense counsel admitted to the appellate court that the jurors "fell in love" with the plaintiff, noting that one of the jurors "blew" a kiss to the plaintiff as the jury left the box.

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The defendants admitted that they caused the car accident on August 9, 2005 when Fred Nesci's car was totaled after it was rear ended by their SUV.

Rear end collision damage:

Fred and his passenger (his wife Valerie) claimed serious injuries but the defense insisted on a damages trial arguing that the injuries were not enough to meet the serious injury threshold required for car accident plaintiffs before they may recover any pain and suffering damages, as set forth in New York's restrictive Insurance Law Section 5102 (d).

A January 2009 trial in Nassau County resulted in a jury verdict for the two plaintiffs in the sum of $465,000 but it's now been reversed on appeal because the medical evidence submitted at trial was not based on a recent examination. There were additional reasons for the reversal in Nesci v. Romanelli but let's take a step back and look at the injuries, the jury verdict and the law surrounding the serious injury threshold - a law that's come under increasing attack from the plaintiff's bar.

As we write, Insurance Law 5102 is being considered by both houses of New York's legislature as they decide whether and to what extent to enact new laws designed to remedy some of the current inadequacies of the statute.

The injuries:

Mr. Nesci, a 51 year old x-ray technician, first sought medical treatment eight days after the accident (from an orthopedic surgeon) complaining of lower back and left shoulder pain. An MRI revealed spondylolothesis, mild central canal stenosis at L3-4 and a disc bulge at L4-5. He underwent eight months of physical therapy. About two tears later, a new MRI scan showed traumatically induced arthritis in his left shoulder. He claimed he could not return to work, participate in sports the way he used to or lift his arm above his head.

         Spondylolothesis is a disorder that causes the forward motion (slip) of one vertebral body over the one below. It is often the result of degenerative disc disease. Traumatic spondylolothesis is rare.

Mrs. Nesci, a 52 year old nurse, was taken to the hospital from the scene of the accident, treated for neck pain and released that night. She followed up with an orthopedist eight days later and an MRI later revealed that she had a herniated disc at C3-4. An EMG was positive for radiculopathy and she underwent eight months of physical therapy along with three steroid injections in her neck.

       Herniated disc vs. bulging disc:

The jury verdicts:

Mr. Nesci prevailed on his claims that he sustained a permanent consequential limitation of use of a body organ or member, and also sustained a medically determined injury which prevented him from performing all of his daily activities for 90 of the first 180 days immediately following the accident. He was awarded $125,000 for his pain and suffering ($25,000 past - 3 1/2 years; $100,000 future - 20 years). He was also awarded $40,000 for loss of earnings.

Mrs. Nesci prevailed on the same serious injury thresholds (permanent consequential limitation of use and 90/180) in addition to a finding that she sustained a permanent loss of use of a body member, function or system. She was awarded pain and suffering damages in the sum of $250,000 ($50,000 past - 3 1/2 years, $200,000 future - 20 years).

The Appellate Court Reversal:

The judges gave short shrift to the 90/180 claims noting neither plaintiff came forward with evidence of an inability to perform daily activities and that Mrs. Nesci returned to her usual job within six weeks.

All of the other threshold categories that the jury ruled upon had an element of permanence and to meet that test a plaintiff must submit trial evidence of a recent medical examination. Neither plaintiff underwent any medical treatment at all within 15 months before trial and their medical expert (the treating orthopedist) last treated them in 2007 (May 2007 as to Mr. Nesci and December 2007 as to Mrs. Nesci). This lack of any recent medical examination led the judges to agree with the defense that the plaintiffs' medical testimony as to permanence was therefore conclusory and speculative.

Inside Information:

• Mr. Nesci previously injured his shoulder in 2000 and missed four weeks of work as a result but at his deposition in this case testified he had never before injured his shoulder.
• Mr. Nesci's doctor testified that the prior shoulder injury may have caused the arthritis now evident but Nesci had failed to make a claim of aggravation of a prior injury thus giving the court a separate basis to rule that the shoulder arthritis claim may not be presented to the jury (the defense is entitled to know if a plaintiff is claiming a brand new injury or an aggravation of an old one - or both).
• There was a significant discrepancy as to Mrs. Nesci's cervical herniation claims. Her first MRI showed a herniation at C3-4 but her second one a year later showed a herniation at C5-6 and was silent as to C3-4. She also had a prior laminectomy in 1981.

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Plaintiff’s attorney told the jury in his opening statement on July 10, 2007 that a pedestrian knockdown car accident on October 3, 2002 was defendants’ fault and caused his client, 46 year Harry Soriano, to sustain traumatic brain injuries (TBI) along with herniated discs in his back and neck. Counsel also told the jury that when he summed up at the end of the trial they would understand why the evidence forced him to ask for at least $2,000,000 for Mr. Soriano’s pain and suffering - $1,000,000 for the past five years and $1,000,000 for the future.

He never made it to closing arguments because the trial judge dismissed plaintiff’s case after testimony from his lone medical witness failed to show a casual connection between the accident and the injuries claimed.

This week, though, in Soriano v. Inao, an appellate court reversed the trial judge’s decision and ordered a new trial based on its finding that the trial judge improperly limited the scope of the doctor’s testimony.

Struck by a car as he was crossing the street in the dark of night at the corner of East Tremont Avenue and the Grand Concourse in the Bronx, Mr. Soriano was knocked to the ground unconscious.

Here is where the accident happened:

Rushed by ambulance to the local hospital, Soriano was admitted to the intensive care unit and treated for a closed head injury. He remained hospitalized for several days and followed up three weeks later at a nearby medical clinic known as Neuro Care Associates.

Soriano's entire medical treatment from the time he was discharged from the hospital up to the date of trial consisted of five visits with neurologists at the clinic plus 48 physical therapy visits, all within five months after the accident.

In his lawsuit against the driver and owner of the car that hit him -- and also the City of New York on the claim that the traffic lights were not working  -- Soriano called as his medical witness Hal Gutstein, M.D., one of the principals of the medical clinic, who would testify that that the accident caused a brain contusion from head trauma.

The defense objected to the doctor’s trial appearance because they'd been unable to obtain his clinic's records. Soriano purported to allow access to his records but his medical care providers rejected and returned Soriano's written authorizations as defective under HIPPA (the federal Health Insurance Portability and Accountabilty Act of 1996 that strictly governs the disclosure of medical records).

The defense thus never received Soriano's medical records until 21 days before trial (and then only some, not nearly all) when plaintiff's attorney served notice that Gutstein would be a testifying medical expert. Accompanying the expert notice was a report of Soriano's initial visit to the clinic on November 1, 2002 that included references to an old brain injury and a pulmonary arrest from a stabbing attack just three months before the car accident (that required surgery to remove some of Soriano's internal organs). The expert's report also mentioned that at the hospital following the car accident Soriano was diagnosed with a subarachnoid hemorrhage (bleeding in the area between the brain and its covering thin tissues, a potentially deadly condition if there's too much pressure from too much blood).

Defense counsel argued that Soriano's prior injuries (especially the pulmonary arrest which implied that Soriano's brain was deprived of oxygen resulting in brain damage) -- about which nothing was known before trial -- could well have been the cause of plaintiff's current complaints and therefore  it would be unfair to allow Gutstein to opine that the car accident alone caused TBI.

The judge agreed in an oral order that limited the doctor’s testimony severely and then dismissed the case completely because Dr. Gutstein's testimony did not include evidence that the car accident caused the TBI.

After trial, there was a full written briefing of the preclusion and dismissal issues and then the judge adhered to his mid-trial oral order of dismissal of the case in a written post-trial decision.

On appeal, plaintiff argued that the trial judge’s preclusion was erroneous because the doctor was not really an expert (who may testify only on timely and full disclosure of the grounds for his anticipated testimony). Instead, plaintiff contended that Gutstein was a treating doctor and as such entitled to testify as to causation and permanence (so long as a HIPPA compliant authorization was given to the defense well before trial).

A cogent explanation of the expert versus treating doctor issues that often confound otherwise able lawyers is set forth in plaintiff's (successful) appeal brief by the eminent appellate counsel Brian J. Isaac.

The appellate judges fashioned a compromise remedy by ordering a new trial that will allow plaintiff to have his day in court but requires him to deliver new authorizations so the defense will have the records well in advance. That way, the facts and records as to the prior injuries will be fully disclosed and their relevance, if any, properly ruled on by the new jury.

Inside Information:

• Plaintiff's attorney could have avoided this debacle by delivering all of the medical clinic’s records to the defense years earlier or even if he’d simply given new authorizations when the defense belatedly asked for them.
• The defense could have avoided this mess too had counsel acted promptly when the authorizations were rejected instead of letting them sit in a file for years until it was too late to get new ones. Had the request been made before the case was placed on the trial calendar – and it should have – then if new authorizations weren’t promptly delivered a judge would have ordered them to be provided and the records would have been obtained.
• Plaintiff’ history – Long unemployed and an ex-convict, plaintiff admitted at trial that he is a recovering alcoholic who lives out of state in a rehabilitation clinic. He also admitted to drinking two 16 ounce cans of beer on the street right before the accident but denied he was drunk. Defense counsel told the jury during her opening statement that the evidence would show plaintiff was the cause of his accident due to his intoxication at a level three times the legal limit. Plaintiff denied he was drunk at the time of his accident.
• Plaintiff’s injuries – Although by the time of trial he hadn't sought any medical care for five years, plaintiff claimed residual and permanent brain injuries including memory loss, mood swings and headaches as well as daily debilitating low back pain.
   

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New York has a very restrictive law when it comes to winning pain and suffering damages in car accident lawsuits. Our so-called No Fault Law was first enacted in 1973 and was designed to weed out frivolous claims and limit recovery to significant injuries. In return, car accident victims received some guaranteed medical and lost wage benefits, regardless of who was at fault.

Now,  many whiplash cases are being dismissed before or at trial because judges and juries conclude that plaintiffs’ injuries do not meet the minimum test of seriousness required under the statute.

Whiplash is a non-medical term used to describe back and neck pain following soft tissue and intervertebral disc injuries in the spine caused by abnormal motion or force that makes the spine whip back and forth.

Under the law, one may be awarded pain and suffering damages only if the one has sustained a "serious injury," defined under Insurance Law Section 5102 (d) as one of the following:
1. A personal injury that results in death;
2. Dismemberment;
3. A significant disfigurement;
4. A fracture;
5. The loss of a fetus;
6. Permanent loss of use of a body organ, member, function or system;
7. Permanent consequential limitation of use of a body organ or member;
8. Significant limitation of use of a body function or system; or
9. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

The main battlegrounds in the courts have been the categories that deal with permanent loss, permanent limitation and significant limitation (six, seven and eight). Judges have been requiring more and more objective proof of injuries (such as range of motion testing) that plaintiffs and their health care providers have been unable to provide. Cases are being dismissed routinely. Attorneys representing plaintiffs have been frustrated by this trend and some say it’s time for the law to be changed (see, New York’s No-Fault Problem With Serious Injuries).

The ninth category – what the lawyers call the 90/180 test - was first thought to be an easy test to meet. Just show that the plaintiff was out of work for three months or more (or otherwise laid up for 90 out of the 180 days after the accident) and then pain and suffering damages may be recovered. It’s never been that easy (nor was it intended to be) and now it’s difficult to win damages under this category as well.

 Judges are routinely applying ever more rigorous standards to dismiss cases of those trying to prove they meet the 90/180 test. In each of the following recent cases it was held that plaintiff failed to meet the requirements under the 90/180 test (in large part because of the lack of objective testing showing significant deficits):

• Toure v. Avis Rent A Car Systems (Court of Appeals 2002)
• Taylor v. American Radio Dispatcher, Inc. (1st Dept. 2009)
• Dembele v. Cambisaca (1st Dept. 2009)
• Dieujuste v. Kiss Management Corp. (1st Dept. 2009)

The most recent appellate court case dealing with the 90/180 test is this month's Chery v. Souffrant (2nd Dept. 2010). Reading that decision, however, gives one little insight as to what the issues or injuries were. We’ve uncovered the details.

On July 24, 2006 Marie Chery was driving home in Spring Valley, New York where she was a factory worker. She was stopped when her car was struck in the rear by a car operated by Lavaud Souffrant traveling at about 25 miles per hour.

Ms. Chery’s head struck the headrest of her car seat, she passed out briefly and then she was taken by ambulance to the hospital. Complaining of back and neck pain, Marie was examined, x-rayed, cleared and released to home. She followed up with a doctor within a few days, was diagnosed with a herniated disc at L4-5 and advised to rest and stay out of work. Her injuries were itemized in her Bill of Particulars.

After a course of treatment including physical therapy, chiropractic treatment and massage therapy and after testing including nerve conduction studies and an MRI, Ms. Chery’s physician cleared her to return to work on October 23, 2006. And that’s what she did (although she refrained from some of the more rigorous work she normally did as a furniture sander) and she also basically stopped her medical treatment for the injuries in her accident.

In her ensuing lawsuit, defendant conceded fault for the accident and therefore the trial was only to determine damages; however, the defense successfully moved to have dismissed any claim that categories six, seven and eight were met. The trial judge issued an order allowing only the 90/180 claim to proceed to trial.

So, on January 6, 2009 the case was tried in Rockland County and the only issue for the jury was whether the 55 year old plaintiff had satisfied the 90/180 test and if so the amount of her pain and suffering damages for the 90 days. 

The jury found that the 90 days (exactly) that Ms. Chery was unable to work (or sing in her church choir, cook or attend to most of her chores at home) satisfied the 90/180 test and she should receive $50,000 for her past pain and suffering.

On appeal, the defense claimed that the $50,000 verdict was unreasonably excessive. In summation, defense counsel had stated that damages should be no more than $15,000. Plaintiff’s counsel did not suggest a specific sum stating that he was leaving it up to the jury to determine the amount. The appellate court sustained the $50,000 award finding that it is not deviate from what would be reasonable compensation.

The court in Chery v. Souffrant cited no cases in support of its affirmance of the $50,000 damages award. Here are the 90/180 damages cases the judges could have mentioned (and probably relied upon):

• Baez v. Goldman (App. Term 1st Dept. 1999) - $75,000 affirmed where plaintiff returned to work in 76 days but on restricted duty
• Vasquez v. Weiss (3rd Dept. 1996) - $50,000 affirmed where plaintiff returned to work in one month due to economic necessity

Inside Information:

• Plaintiff, a Haitian immigrant, spoke no English so an interpreter had to be utilized in court. That often makes it very difficult for a jury to follow testimony and become endeared to a non-English speaking party.
• The defense doctors who examined the plaintiff did so well after the 180 day period and they were not called to testify (and had the defense sought to bring them in their testimony would have been excluded as irrelevant).

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 Gerard Malloy had been an elevator mechanic for many years at 14 Wall Street in Manhattan when, on July 21, 2004, he tripped and fell over an air handler cover that had been left on the floor. He was thrown several feet and struck his back against nearby stairs.

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On April 13, 2003, Sergeant Michael Lauro of the New York City Police Department was performing a station-house security check at his precinct when he slipped and fell in a puddle of water.

After minor treatment, he was diagnosed with a rib fracture (which healed) and back pain. Unfortunately, the back pain never got better, MRIs revealed two herniated discs in his back pressing on spinal nerves and, despite years of treatment thereafter, Lauro could never return to work and remains disabled to this day.

On May 18, 2007, a Queens County jury returned a verdict in the 49 year old plaintiff’s favor finding that his injuries were due to the city’s negligence and awarding him pain and suffering damages in the sum of $810,000 ($160,000 past, $650,000 future). Last week, that verdict was upheld on appeal in Lauro v. City of New York.

The pain and suffering verdict is significant because plaintiff never underwent surgery (his doctor testified he’d require it but that the outcome is totally uncertain). Juries and appellate courts frequently devalue back and neck pain and suffering claims when there’s been no surgical repair.

• In many car accident cases in New York, this type of back injury claim is dismissed without a trial due to the restrictions of Insurance Law Section 5102 which mandates that plaintiffs’ injuries meet a narrow statutory threshold. My colleague, Eric Turkewitz, discusses plaintiffs' frustrations with this law over at New York Personal Injury Lawyer, here.

Mr. Lauro, though, had several factors in his favor which influenced the jury and the appellate judges:

• multiple MRIs over the years after the fall that showed the protruding discs pressing upon spinal nerves (causing excruciating pain)
• markedly decreased range of motion – forward flexion was severely limited to 20 degrees;
• continued prescriptive use of narcotic medication (Vicodin) for credible complaints of unremitting pain resulted in dependence and side effects (including memory loss and lethargy);
• inability to return to work or engage in activities such as camping, biking, swimming or bowling

Inside Information:

• The defense case was impaired severely because of its failure to produce at trial its doctor who had examined plaintiff two years earlier and was expected to testify. Defense counsel claimed the doctor was suddenly unavailable but the trial judge agreed with plaintiff’s counsel that a “missing witness” charge should be made whereby the jury was told it could make a negative inference due to the doctor’s absence. In fact, the defense doctor’s report of his examination supported plaintiff’s injury claims and that, plaintiff’s lawyer urged, was clearly the reason for the doctor’s curious absence.
• Plaintiff had a motorcycle accident in 1989 in which he injured his neck and the defense urged that plaintiff’s current injuries were all related to the prior accident. Plaintiff claimed the prior injuries were minor and the jury agreed apportioning only 2% of the damages to the prior accident and 98% to the current one.
• Plaintiff’s claim that he was permanently disabled from work was credited by the jury which awarded him $1,400,000 lost earnings damages. The trial judge, though, invoked the doctrine of “collateral estoppel” and set aside that award because, when Lauro applied for disability retirement from the city after the current accident, the city’s medical board ruled that while indeed Lauro is disabled the disability resulted from the 1989 accident. Plaintiff successfully urged on appeal that his lost earnings verdict should be reinstated. His eminent appellate counsel, Arnold E. DiJoseph, noting that plaintiff worked for 14 years straight after the 1989 accident and it was only after the 2003 accident that he never returned to work, pointed out that the city stood to gain a great deal by simply shifting blame for plaintiff’s disability to the 1989 incident.

There was only one case cited by the appellate court in Lauro v. City of New York to substantiate the reasonableness of the pain and suffering verdict. In that case, Wimbish v. New York City Transit Authority (2003), an $800,000 pain and suffering verdict ($300,000 past – 8 years, $500,000 future – 30 years) was upheld for a woman in a bus accident who sustained three large herniated discs in her neck. She underwent no surgery but remained in excruciating pain and would require future surgery.

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Deanna Kmiotek was 32 years old on July 8, 2004, sitting in her car at a red light in hometown Amherst, New York when out of nowhere the town's dump truck carrying an 18 ton load smashed into the rear of her car. She was seriously injured and sued the town for her damages.

A judge ruled well before trial that the facts and fault were plain and that the issue of fault need not be addressed at trail; the only issue at trial would be the amount of damages.

Deanna sustained herniations in her back requiring surgery to fuse lumbar discs at L4-5 and L5-S1 with a bone graft from her pelvis and the insertion of two metal titanium rods and six screws. As a result, she could no longer work either at home or as a commercial cleaner and she could no longer pick up her children or give then baths.

Here's what a spine looks like after lumbar fusion surgery:

The town offered $250,000 to settle before trial but the offer was rejected. In November 2007, an Erie County jury awarded plaintiff pain and suffering damages in the sum of $75,000 ($35,000 past, $40,000 future). On appeal in Kmiotek v. Chaba, $75,000 was held to be unreasonably low and $225,000 ($75,000 past, $150,000 future) was found to be the minimum amount the jury could have awarded as a matter of law based on the evidence at trial.

The amount determined by the appellate court as reasonable in this case is strikingly lower than awards in similar cases and the court should have ordered an increase to at least $500,000. 

It cannot be repeated enough that each case, each person, each injury and each recovery  is unique so there's no one guideline or set of numbers to look to when ruling on appropriate pain and suffering damage figures. That said, the appellate courts in New York routinely rule in these cases by looking to prior cases for guidance. 

Had a thorough review of precedent been undertaken and relied upon, it's clear to me that Ms. Kmiotek would have had her paltry $75,000 jury verdict increased to more than $225,000 - say, $500,000 or more. Here are cases that the appeals court did not mention in its decision:

• Baird v. V.I.P. Management Co., Inc. - $700,000 ($400,000 past, $300,000 future) for a Westchester County woman who fell and underwent three surgeries with bone grafts to fuse and repair two cervical discs. Plaintiff in that case testified she was in constant pain and could not work; although she admitted on cross-examination that she had told her doctors before trial that she was improving and in less pain.
• Kihl v. Pfeffer - $1,845,000 ($625,000 past, $1,200,000 future) for a 38 year old passenger in a car accident who sustained a neck injury that required spinal fusion surgery involving the removal of her disc at C2-3 and its replacement with bone from her hip. Unfortunately, surgery made her worse and her doctors had to implant a permanent morphine pump to alleviate her pain.
• Barrowman v. Niagara Mohawk Power Corp. - $3,000,000 for a worker who fell off a scaffold 12 feet down to a concrete floor. He sustained herniated discs in his neck and back requiring spinal fusions with bone grafts. There was evidence that his neck and back injuries would worsen and more surgery would be needed.

                               Here are side and back views of the whole spine:

Inside Information:

• Defense counsel argued in summation that plaintiff sought a big damage award so that the Town of Amherst could buy her a new building. Counsel was playing to the well known reluctance of jurors to render big damage awards against their own municipalities.
• Defense counsel also suggested repeatedly in closing that a 10 year old car accident plaintiff had been involved in somehow caused the injuries plaintiff was suing for in the 2004 accident lawsuit - this despite the fact that the defense offered no proof at all as to any lingering injuries.
• Juries and courts are often affected by and reduce pain and suffering verdicts because of any bits of information as to any prior injuries or accidents. A good example of this is found in Sanz v. MTA-Long Island Bus where an appellate court reduced a jury's award from $750,000 to $400,000 in a cervical fusion case apparently influenced by facts related to an accident eight years earlier.
• Plaintiff's counsel objected to what he called improper, unethical closing argument statements made by defense counsel, such as above, that were intended to influence the jury and the appellate court agreed that the statements were improper.  But not so improper that plaintiff should be afforded a new trial on damages.

The appeals court in the Kmiotek case missed the ball on two counts:

1. Its increase of the paltry $75,000 verdict to $225,000 was much too low in view of plaintiff's debilitating injuries and similar prior sustained verdicts.
2. Second, defense counsel's statements to the jury in closing were outrageous, and should have resulted in a new trial so that a new jury could rule on damages without being affected by improper arguments that clearly influenced them to render such a meager award.

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It was hardly two weeks ago that we discussed wrist fracture cases in New York and how they can command settlements and verdicts between $450,000 and $900,000. Now comes the case of Serrano v. 432 Park S. Realty Co., LLC and an award of $3,100,000 for pain and suffering.

In this new case, a 38 year old construction worker fell eight feet from a ladder while attempting to dismantle an air conditioning duct. He sustained comminuted fractures of his wrist that required both external and internal fixation surgery. Then, he suffered from posttraumatic arthritis and underwent wrist fusion surgery which permanently restricted him from being able to move or bend his hand up or down at the wrist.

This case did present  additional injuries other than the severe wrist fractures:

• a herniated disc requiring an operation, and
• reflex sympathetic dystrophy ("RSD" - a chronic, painful and progressive neurological condition often presenting as a burning sensation after surgery or trauma)

At trial in 2007, a New York County jury awarded Mr. Serrano $600,000 for his past pain and suffering plus $4,240,000 for his future pain and suffering. On appeal, the court determined in a decision released today, that the past pain and suffering award was reasonable but ruled that the future pain and suffering award should be reduced to $2,500,000.

It was the RSD, which left Mr. Serrano with a functionally useless hand, that led the court to distinguish this case from Cabezas v. City of New York, (in which $900,000 was found to be the proper pain and suffering award for a 50 year old man with a comminuted intra-articular radius fracture and a displaced ulna styloid fracture that required two surgeries and would need a fusion surgery in the future) and from Hayes  v. Normandie (in which $985,000 was found to be the proper pain and suffering award for a 52 year old man with a comminuted fracture of his radius extending into his wrist requiring future fusion surgery).

• Insider's Tip: The defendant in the Serrano case claimed that the plaintiff's employer should have to reimburse it for the verdict because the employer was negligent (the employer could not be sued by plaintiff because of the Workers' Compensation Law that gives employees wage and medical benefits but prohibits them from suing their employers for negligence). The problem was that New York law does not allow such reimbursement unless the plaintiff has sustained  a "grave injury" under Workers' Compensation Law Section 11. The jury was told by the judge that "grave injury" in this case meant a total loss of use of plaintiff's hand and it ruled that plaintiff's injury, which it found was "worth" over $4,000,000 for pain and suffering was not a "grave injury." That finding appears to be reversible error. There was uncontroverted evidence from many physicians that Serrano had no "functional" use of his hand but the jury disregarded that and the appellate court disregarded the arguments made on defendant's behalf by the highly regarded Mauro Goldberg & Lilling law firm (the only firm in New York that is devoted exclusively to appellate litigation). While the "grave injury" issue will not affect plaintiff's damage award in this case, watch for that issue -- whether there is a difference between "functional loss of use" and "loss of use" -- to be ruled upon soon by the highest court in New York (the Court of Appeals). 

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