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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Seven months pregnant with twins, Kathleen Conlon was slowing down in traffic on the Brooklyn-Queens Expressway on July 12, 1999 when her car was struck in the rear by a New York City express bus. Her car buckled and her back was injured but her twins were unharmed (and born healthy in due time).

You don't want your little car hit by one of these:

 From the scene of the accident, Ms. Conlon was whisked by ambulance to a local hospital where she was treated for her back pain.  She was treated conservatively over the next two months under the care of a chiropractor but her pain worsened and radiated to her legs, a sign that there may be herniated discs. Sure enough, an MRI later revealed herniations at L4-L5 and L5-S1 as well as nerve root compression.

After more conservative treatment, additional MRI studies and several rounds of painful epidural injections, Kathleen’s pain continued and it appeared to be getting worse – she was losing the normal fluid between her discs and the space between them was collapsing. Furthermore, she’d developed osteophytes or bone spurs that pressed on nerve roots.

Finally, in May 2004, in an effort to relieve her unremitting pain, Kathleen submitted to major surgery – a lumbar laminectomy with decompression of the nerve roots and a spinal fusion with bone graft, like this:

A lawsuit against the New York City Transit Authority (the NYCTA owns and operates the city buses) was underway and Conlon had two years earlier won summary judgment on liability, meaning that the only issue for a jury would be the amount of damages. Despite the liability finding, the defense never made any settlement offer at all so the case proceeded to a damages trial.

On September 25, 2008, a Kings County jury returned a verdict for $5,000,000 – entirely allocated to plaintiff’s nine years of pain and suffering from the date of the accident to the date of the verdict.

Nothing at all was awarded for the 30 year old plaintiff's future pain and suffering despite the jury's findings that her injuries are permanent and she has a 41 year life expectancy.

On appeal, the judges last week in Conlon v. Foley (2nd Dept. 2010) agreed with the defense that $5,000,000 was excessive and they ruled that $700,000 for past pain and suffering (9 years) would be reasonable. As to future damages (41 years), the judges found that the jury’s failure to award anything at all was not based on a fair interpretation of the evidence, was inadequate and $100,000 should be awarded.

The big issue in Conlon v. Foley was not the large past pain and suffering award (plaintiff’s appellate counsel conceded it was excessive and suggested that it might fairly be reduced to $2,000,000); rather it was the award of zero for future damages.

Not at all apparent in the appellate court decision was the real reason the jury awarded nothing for the future – the trial judge’s order that plaintiff’s doctors were not allowed to testify as to her need for a second surgery.

Andrew Merola, M.D., the head of spinal surgery at St. Vincent’s Hospital, was plaintiff’s treating doctor. He’d performed the first surgery and had determined that his patient suffered from failed back syndrome and, as a result, plaintiff needed a new laminectomy with discectomy and a fusion with a metal plate and screws.

The jury was not told of this major development (the need for new surgery) because the defense claimed that they were taken by surprise, did not know plaintiff would make this claim at trial and it would therefore be unfair to permit such testimony. The judge agreed because plaintiff had not specifically mentioned this second surgery in her bills of particulars (pre-trial disclosure documents mandated under CPLR 3043. There had been the standard disclosure that plaintiff’s spinal injuries would require future surgical intervention but, the defense argued, once the first surgery occurred there was no specific notice that a second might be needed.

The jury did hear testimony from plaintiff and her doctors that, although she'd returned to work as a teacher, she'd need more treatment, including injections, and the following appeared to be permanent:

• continuing back pain
• nerve damage
• significant loss of spinal range of motion
• development of arthritis
• presence of scar tissue
• difficulty standing, sitting and bending

Inside Information:

• The defense was precluded from offering the testimony of a neurologist who examined the plaintiff because the expert notice required was not timely exchanged.
• The only doctor to testify for the defense was a radiologist, Lewis Rothman, M.D. who testified that all of plaintiff’s back pain stemmed from pre-existing degeneration. He was skewered by plaintiff’s counsel regarding testimony he’d given in other trials that was at odds with the position he took in this trial and also regarding a lawsuit against his former partners in which he reluctantly admitted to Ms. Conlon’s attorney that he’d improperly backdated records.

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Defendants routinely and successfully argue in back and neck injury cases that  plaintiff’s injuries pre-existed an accident and no pain and suffering damages should be awarded (even if defendant is found to have caused the new accident). There’s merit to the argument but it’s not as simple as I’ve implied.

Under New York law, a plaintiff who’s been injured before is still entitled to recover pain and suffering damages resulting from a new injury to the same body part; however, a plaintiff is only entitled to damages to the extent to which he’s been further disabled or injured as a result of the new accident.

And, a plaintiff must make the aggravation or exacerbation of injury claim in his lawsuit pleadings before a trial judge will tell the jury that they may make an award for the increased pain and suffering. Otherwise, a plaintiff has to prove that all of his injuries were caused in the new accident and the defendant will win by convincing the jury that plaintiff’s injuries predated the current accident.

Plaintiffs usually claim that their preexisting neck and back injuries were resolved and that for years they had returned to prior levels of activity and were pain free. Now, they say, new trauma has caused new injuries, especially herniated discs, and they are in great pain and disabled as a result. The problem is, though, that magnetic resonance imaging (MRI) which illustrates the herniated discs very often is interpreted to show degenerative disc disease. When that happens, defense doctors will testify that the degeneration means plaintiff has preexisting disc disease and that it’s unclear what, if any, new spinal injuries were caused by the recent trauma.

With this background, we now turn to the case of Leslie Rodgers, a 40 year old man who was struck by a city bus at about 8 a.m. on September 23, 2003 while in the crosswalk on Gates Avenue at its intersection with Franklin Avenue in Brooklyn, New York. He was taken by ambulance to a local hospital where he was treated for minor back and other injuries and released. A month later, an MRI showed a herniated disc at L5-S1 with impingement on the S1 nerve root. Rodgers began a long course of conservative treatment including physical therapy, chiropractic treatment and two epidural steroid injections.

Finally, after three years, Rodgers underwent back surgery: a laminotomy and diskectomy at L5-S1. During the surgery, the doctor plucked out a disc fragment that had been impinging upon a nerve.

Here is what the diskectomy procedure looks like:

Post-operatively, Mr. Rodgers was much improved but his pain soon returned and at trial he testified that he was in great pain and disabled. He complained of intermittent numbness and pain up and down one leg with low back pain lasting all day and night. His surgeon opined that these conditions would be permanent. That meant Rodgers could no longer return to his job (at Fortune Society assisting HIV positive ex-convicts find housing); nor would he ever again enjoy basketball, handball or running.

The jury assessed pain and suffering at $1,400,000 ($200,000 past - 4 1/2  years; $1,200,000 future – 25 years).

The city appealed asserting:

1. that there was evidence that Rodgers had degenerative disc disease before the accident (the MRI a month after the accident revealed an osteophyte growth at the site of plaintiff’s L5-S1 herniation as well as desiccation and degeneration of the disc),
2. that he failed to make a claim in the lawsuit that the bus accident injuries may have been due, at least in part, to his preexisting condition and
3. that the trial judge should not have instructed the jury that they could award damages for plaintiff’s increased susceptibility to injury

Here is a comparison of normal, healthy discs with degenerated discs with osteophytes:

Last week, in Rodgers v. New York City Transit Authority (2nd Dept. 2010), the appellate judges agreed with the city and ordered a new trial, thus vacating the entire jury verdict (Rodgers was also awarded $1,000,000 for past and future lost earnings).

The trial judge had told the jury they could award pain and suffering damages for all of the injuries suffered by Rodgers if they found that his prior physical condition left him more susceptible to greater injuries than a healthy person (i.e., one without preexisting degenerative disc disease). The defense claimed it was prejudiced by this charge (Pattern Jury Instruction 2:283) in that plaintiff had proceeded in the lawsuit for years on the sole theory that all of his injuries were caused by the bus accident and he had never once put the defense on notice that some injuries may have been exacerbated or due to his prior condition that had left him with an increased susceptibility or the possibility of asymptomatic conditions becoming symptomatic. The appellate court agreed and ruled that the jury’s verdict was improper because it may have included damages for injuries that Mr. Rodgers sustained before the bus accident.

In the new trial, the jury will consider only those injuries actually caused by the bus accident and they may award pain and suffering damages only for those new injuries. That’s a huge win for the defense in that it will be very hard for Rodgers to convince the jury that he sustained any new injuries at all in view of his preexisting condition.

Inside Information:

• Before the accident, plaintiff had been a drug addict and served 12 years in prison for participating in a kidnapping (by the time of trial he had become a productive member of society, working and enrolled in a Ph.D. program at Hunter College).
• Plaintiff claimed unfair surprise too – only three days before jury selection the defense notified plaintiff’s counsel that a defense radiologist would testify that plaintiff’s injuries were preexisting.
• The jury apportioned liability 80% on the city and 20% on the plaintiff and in the new trial that apportionment will stand with the new jury considering only the issues of which injuries (and the amount of damages), if any, were caused by the bus accident.
   

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Ramona Ulerio, a 36 year old homemaker, sustained serious back injuries when she slipped and fell down subway stairs in New York City on October 5, 2002. She sued the New York City Transit Authority claiming it was negligent in its maintenance of the stairway and that its negligence created a dangerous condition. She won her case five years later when a Bronx County jury ruled that it was a missing non-slip plate that caused the accident.

The subway station looked something like this:

The jury then calculated and awarded damages in the sum of $1,500,000, as follows:

• past medical expenses - $30,000
• future medical expenses - $381,322
• future custodial care - $441,163
• future rehabilitation expenses - $214,318
• future pain and suffering - $433,197

Each of the future periods was 20 years.

The transit authority appealed on the basis that the damages awarded were excessive but yesterday the appellate court affirmed the award in its entirety in Ulerio v. New York City Transit Authority (1^st Dept. 2010).

The case is significant and a big win for the plaintiff because Ms. Ulerio had sustained a previous back injury (also in a fall down accident) three years earlier. And her doctor recommended surgery for a disc at L5-S1 that was injured in the first accident. That very same disc was injured in the new accident, in addition to a disc at L4-L5.

So, the defendant argued at trial and on appeal that plaintiff’s injuries pre-existed and were not caused by the 2002 accident, noting also that Ms. Ulerio had even scheduled surgery for her back after the 1999 accident (although later canceled).

The defense urged that any treatment plaintiff claimed she’d need in the future was directly related to the old accident and injury. On the face of it, this sounds plausible; however, there were several facts that led the jury and the appellate judges to believe otherwise:  

• a doctor who treated plaintiff for both accidents testified that the first accident was minor and the second quite major,
• plaintiff was able to maintain all of her usual activities after the first accident but after the second accident she was rendered totally disabled

The treatment after the second accident included extensive physical therapy, epidural injections and two surgeries – a laminectomy at L4-L5 with bilateral foraminotomies and a bilateral laminectomy at L4-5, L5-S1 with L5-S1 fusion.

The L5-S1 fusion was clearly a new and huge injury and in that procedure the doctor fused the two vertebrae together fusing metal hardware and her back now looks like this:

Unfortunately, Ms. Ulerio remained at trial in unremitting pain (despite morphine) and unable to resume her household duties. She could not stand for more than 15 minutes, sleep at night, bathe or dress herself. She needed a cane to walk and wore a back brace at all times. She was diagnosed with failed back syndrome.

Ms. Ulerio’s need to incur future expenses was explained by testimony from her doctors and an economist who concluded that Ms. Ulerio  would require 40 years worth of physical therapy (30-50 times a year), pain management, household help (20 hours a week) and medical testing and care (including additional spine surgeries). They added it all up to more than $3,500,000. The jury agreed that these categories of future expenses would be required but only for 20 years and only in the total sum of about $1,000,000.

Inside Information:

• plaintiff was found to be 30% at fault for her accident so her total recovery is $1,050,000 (not $1,500,000)
• the jury clearly decided that the total verdict should be $1,500,000 and then it “backed into” that figure by awarding odd amounts for each category of damages
• plaintiff had before trial stopped going for physical therapy so the defense argued that there was no reason to believe she’d continue or need it in the future – plaintiff countered that the reason she stopped was she could not afford therapy and the jury’s award would allow this needed care in the future
• the future pain and suffering award ($433,197) was not challenged on appeal (and it would not have been modified downward anyway in view of case precedent we've discussed before, here and here
• the appeal of this important case was handled superbly by noted appellate counsel Brian Isaac

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Loss of consortium is the term most often used by judges and lawyers to refer to the claims of physically uninjured spouses in personal injury cases brought by their physically injured mates. The claim arises when a physically injured person cannot as a result provide his or her spouse with the services, companionship, love, affection and sexual relations enjoyed before the accident.

The loss of consortium claim is usually not a significant one unless the physically injured spouse has suffered a devastating, long-lasting injury such as paralysis, incontinence, loss of sexual function or inability to walk.

Judges in New York tell juries in personal injury cases that in determining the loss of consortium damage amounts they are to consider following factors and traits of the physically injured spouse:

• disposition and temperament
• social life
• services rendered in supervising the household
• acts of affection, love and sexual intercourse

It's obvious that these elements of the claim are vague and I can tell you from experience that juries often misunderstand them. As a result, loss of consortium awards range from shockingly low or even nothing at all to amazingly high. The appellate courts do not hesitate to exercise their powers, in New York under CPLR 5501, to increase or decrease loss of consortium verdicts when they find the amounts awarded deviate from what is reasonable compensation.

Here are some of the higher awards sustained in New York for loss of consortium claims:

• Villaseca v. City of New York (Appellate Division, 1st Dept., 2008) - a Bronx County jury awarded Diane Villaseca $1,800,000 for her loss of consortium claim in connection with an $8,000,000 pain and suffering award for her husband who suffered loss of vision after nine surgeries (his pain and suffering claim was reduced to $5,000,000, as we noted previously here). On appeal, Ms. Villaseca's award was reduced to $750,000 ($250,000 past, $500,000 future), with the court noting that she had assumed full responsibility for household chores, cooking and helping her husband move about.
• Bissell v. Town of Amherst (Appellate Division, 4th Dept., 2008) - an Erie County jury awarded Sherry Bissell $3,000,000 for her loss of services claim ($1,000,000 past, $2,000,000 future) in connection with her husband Peter's fractures of his lumbar vertebrae from a workplace fall that left him paralyzed, incontinent and sexually dysfunctional. Ms. Bissell took over all aspects of her husband's hygienic care. The appeals court reduced her award to $1,000,000 ($250,000 past, $750,000 future).

• Hopper v. Regional Scaffolding & Hoisting Co., Inc. (Appellate Division, 1st Dept., 2005) - a Bronx County jury awarded Laurel Hopper $1,500,000 ($300,000 past, $1,200,000 future) in connection with her husband Bill's spinal injuries from an elevator hoist drop. He underwent a T10-12 laminectomy and suffered ruptured blood vessels that led to a spinal cord stroke. He was left in constant pain, incapable of sitting long and with frequent urinary urge. His wife became his caregiver. His prognosis was poor and the $1,800,000 pain and suffering award was upheld on appeal and the loss of consortium award was reduced to $800,000 ($200,000 past, $600,000 future).

In some cases, juries have awarded nothing at all, or too little. For example, in Barnaby v. Gold Construction Corp. (Appellate Division, 1st Dept., 2008), the judge in a non-jury damages only trial in Bronx County awarded nothing at all to the spouse and only $50,000 to a laborer who fell at work sustaining a fractured ankle and torn meniscus in his knee. A new trial was ordered because the judge failed to state why he didn't make an award for loss of consortium, especially in view of the fact that Ms. Barnaby was left with a spouse largely confined to their home and unable to do any household chores.

Don't get the impression that loss of consortium claims are often in the $750,000 to $1,0000,000 range. They aren't. Typical awards in significant but non-catastrophic injury cases are more along the line of the following cases:

• Orlikowski v. Cornerstone Community Federal Credit Union (Appellate Division, 4th Dept., 2008) - $15,000 (injured spouse awarded $200,00 for discectomy and future spinal fusion)
• Vertsberger v. City of New York  (Appellate Division, 2nd Dept., 2005) - $85,000 (injured spouse awarded $1,4000,000 for shattered elbow)
• Courtney v. Port Authority of New York (Appellate Division, 2nd Dept., 2007) - $100,000 (injured spouse awarded $1,050,000 for lower leg compartment syndrome, foot drop and several surgeries)

Insider's Tips:

1. When there's a divorce or the spouses separate after the accident, the loss of consortium claim will be negatively affected. There's no spousal claim for the time period after the separation and any award for the prior time when they were together will likely be much less than had the jury not known about the marital strife. Savvy lawyers will either avoid adding the loss of consortium claim at all or they will try to get the uninjured spouse to drop the claim. Jurors do not want to hear about the divorce or the separation. As Maryland attorney Ron Miller has noted, they want to see the spouses sticking together "for better or worse."
2. Usually, a loss of consortium claim is included in (i.e,, derivative of) a personal injury claim and counts toward the limit of liability under any applicable liability insurance policy. In some cases, though, for example in Tennessee under the Government Torts Claim Act, the loss of consortium claim is separate. (h/t Day on Torts)

Tidbit:

Loss of consortium claims began in England in 1846 via statute as Lord Campbell's Act and were originally paired in a Latin expression: "per quod servitium et consortium amisit,"  translated as "in consequence of which he lost her society and services."

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