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

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.

Diagnosed with herniated discs at L3-4, Malloy was forced to undergo fusion surgery.

Here is what the spine looks like after lumbar fusion surgery:

Malloy had been earning $90,000 a year with full union benefits but was never able to return to work due to his injuries. While the building owner and operator denied they were negligent in maintaining the area and creating a dangerous condition, a Manhattan jury disagreed and found them 100% at fault.

On February 4, 2008, the jury awarded Malloy $3,260,000 in damages which included $1,600,000 for his pain and suffering ($400,000 past – 3 ½ years, $1,200,000 future – 25 years) plus $1,064,000 for lost earnings ($344,000 past, $720,000 future – 12 years).

Defendants did not challenge the reasonableness of the pain and suffering awards; nor would any such challenge have been successful in view of prior appellate court decisions (discussed here) and the severity of Malloy’s injuries such as:

• chronic, severe low back pain leaving him totally unable to return to work
• bilateral branch blocks at L1-L4 in which an anesthetic was injected into the spaces surrounding the nerve roots
• insertion of a spinal cord stimulator device which had to be removed after 10 days because it worsened the pain
• implantation of an intrathecal pump which emits a flow of narcotics into the spinal canal

Here is what the intrathecal pump looks like:

The defendants appealed on the issue of whether the lost earnings award should be reduced by social security disability (“SSD”) payments that plaintiff expects to receive in the future.

In one of the last decisions of 2009, the appellate court in Malloy v. Stellar Management ruled that the $100,000 of SSD payments already received by the time of trial should be deducted from the verdict; however, in a victory for the plaintiff the court also ruled that the estimated $400,000 in future SSD benefits should not be deducted.

The operative law is New York’s CPLR 4545 which requires trial judges to reduce a future loss of earnings verdict to the extent that it will with "reasonable certainty" be replaced or indemnified from a collateral source such as social security.

New York’s so-called common law (the law as set forth in court decisions) used to be that a personal injury plaintiff’s damages would not be reduced by the amount plaintiff received from collateral sources such as insurance. Beginning in 1975, the legislature started to chip away at that doctrine – the “collateral source rule” - and each evolving diminution of the doctrine was intended to prevent double recovery by plaintiffs and to curb rising liability insurance costs.

The question in Malloy v. Stellar Management was whether defendants had proven with reasonable certainty that plaintiff would continue to receive future SSD payments.

Since plaintiff was already awarded SSD and the award could be reduced or discontinued in the future only if the Social Security Administration made a new finding of employability (based on new medical evidence) and since plaintiff had argued at trial (based on testimony from his doctors) that he was permanently disabled and unemployable, defendants argued that they met the reasonable certainty test and they should be credited with $400,000 of future SSD payments.

Plaintiff argued that because there was conflicting medical testimony at trial as to whether he was totally disabled from employment, the defense could not meet its heavy burden of proving that it was highly probable the plaintiff would continue to be eligible for SSD benefits. The appellate judges agreed stating that an offset for future SSD benefits was not warranted because the trial record showed that plaintiff’s condition had improved and, although still primarily disabled, he was capable of performing some limited sedentary work.

Inside Information:

• This case drew wide attention shortly after the trial in 2008 when David Golomb, one of New York’s top trial lawyers, skewered two doctors on cross-examination. The doctors had examined Malloy for the defense and issued reports that purposefully omitted information that would have been favorable to the plaintiff. Eric Turkewitz discussed those issues, here, praising Golomb and suggesting that there may have been deception and a breach of ethics by those acting for the defendants.
• Four years before Malloy fell at work, he had been injured in a car accident in which he sustained herniated discs at L4-5 and L5-S1 requiring a laminectomy and fusion. He returned to work three years before his new accident but as part of his new surgery in 2005, the old hardware had to be removed.
• Defendants had also appealed on issues concerning (a) the so-called discount rate to be applied to the portion of the judgment that’s to be paid in installments over the years (under CPLR Article 50-B, certain portions of personal injury verdicts for future damages are to be paid out over time) and (b) whether plaintiff could insist that the annuity to fund the future payments be issued only by a top rated insurance company. Plaintiff’s position was upheld in both instances.
• Sources tell me that while the appeal was pending the parties settled for a $3,000,000 lump sum payment plus between $150,000 and $750,000 more depending upon the outcome of the appeal.

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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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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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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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