Spinal Cord Injury Leads to $3,500,000 Pain and Suffering Award by Appellate Court

Posted on April 8, 2011 by John Hochfelder

Ray Hammond was 42 years old on February 4, 2004 when he was walking his six year old daughter home from school at about 2:45 p.m. As they crossed a street in in Queens, he was holding her hand when he was struck by a left turning car.

Mr. Hammond was thrown in the air, landed on the hood of the car, smashed against the windshield and ended up at Jamaica Hospital Medical Center where he was admitted and confined for three and a half months.

In an ensuing lawsuit, the driver was found fully at fault for the accident and the jury then awarded Hammond pain and suffering damages in the sum of $4,000,000 ($2,000,000 past - 4 years, $2,000,000 future - 40 years).

On appeal, the defendant argued that the pain and suffering award was excessive. The appellate court agreed, in part. In Hammond v. Diaz (2d Dept. 2011), the $2,000,000 verdict for 40 years of future pain and suffering has been ruled excessive and therefore reduced by $500,000 (the $2,000,000 for past damages was affirmed). The total pain and suffering award thus now stands at $3,500,000.

The jury made a loss of consortium award to plaintiff's wife in the sum of $1,000,000; however, the appellate court found this excessive too and ordered a reduction to $200,000 ($100,000 past, $100,000 future).

Unfortunately, the court's decision reveals nothing at all about Mr. Hammond's physical injuries in this case (except to state that Mr. Hammond was hospitalized for 3 1/2 months and then treated as an inpatient at a rehabilitation hospital for an additional month).

Essentially, Mr. Hammond sustained spinal cord contusions near C-4 that left him with permanent hemiplegia (paralysis of muscles on one side of the body).

Here are the consequences of plaintiff's hemiplegia:

  • foot drop with permanent limp and need to use a foot brace
  • dominant right hand and arm weakness, with muscle atrophy and and the inability to clench

Typical drop foot brace:

While in the hospital, Mr. Hammond's left lung became infected from septic shock and he was required to undergo a lobectomy, in which the lower lobe of one lung was removed.

Previously a self-employed optician, Hammond was unable to work at all for two years. He then found a job in a friend's practice for two days a week but testified at trial that he remains unable to grip anything with his right hand, suffers from muscle spasms several times every day and fatigues quickly while in constant pain all over his right side.

Mr. Hammond's other activities remain severely limited in that he can no longer:

  • swim (he'd been an expert)
  • run
  • walk long distances or
  • play with his daughter, except in very minimal ways

The defense argued for a reduction in damages because plaintiff's condition had significantly improved from the time of his initial hospitalization (when he was unable to move any of his limbs) to the time of trial (when he could walk,  perform many activities of daily living and took yoga classes three days a week).

Inside Information:

  • Two doctors testified: Ahmed Elfiky, M.D., a neurologist for the plaintiff (transcript here) and Edward Toriello, M.D., an orthopedic surgeon for the defense (transcript here). The defense has plaintiff examined by its own neurologist before trial but that doctor did not testify and plaintiff was granted a so-called missing witness charge.
  • In closing arguments, plaintiff's attorney asked the jury to award pain and suffering damages in the sum of $5,000,000 ($2,000,000 past, $3,000,000 future) while defense counsel refrained from suggesting a figure.

 

 

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Shoulder Injury Pain and Suffering Verdict - $250,000 Upheld after Malpractice by Attorneys

Posted on January 12, 2011 by John Hochfelder

Rosalie David, a 57 year old schoolteacher, was a front seat passenger in a car driven by her husband on January 25, 2003 in Cortlandt Manor, New York. Waiting to make a left turn, their car was rear ended by a car driven by Dennis Astrologo.

Complaining of pain in her right shoulder, Mrs. David was taken by ambulance to the local hospital where she was x-rayed (negative), treated (with a sling and pain medication) and released.

She followed up with an orthopedic surgeon three days later and he immediately ordered an MRI which revealed a full thickness rotator cuff tear.

A week later, Mrs. David underwent surgery to repair her rotator cuff.

In the meantime, on February 3, 2003, Mrs. David retained lawyers to pursue her claim for injuries arising out of the accident. They filed suit on June 9, 2003. Mistakenly, though, the lawyers filed in the wrong court - the Civil Court of the City of New York, a court in which the maximum recovery is $25,000.

When her lawyers realized their mistake, it was too late. They sought permission from the Supreme Court to transfer the case to that court but their application was denied and that denial was upheld on appeal.

She then engaged new counsel and successfully sued the lawyers for malpractice. In that case (David v. Mallilo & Grossman (Supreme Court, New York County, Index # 107490/06), a motion for summary judgment was granted in plaintiff's favor and upheld on appeal - it was easily determined that the law firm committed malpractice.

A trial was then held in which, as in all attorney malpractice cases, plaintiff then had to prove that she would have won her underlying car accident lawsuit. Further, she had to prove what her financial recovery would have been.

The liability element was easily resolved in Mrs. David's favor (this was a rear-ender car accident) but the issue of damages was hotly contested before the trial judge awarded pain and suffering damages in the sum of $250,000.

It turns out that five days before the car accident Mrs. David bruised her right shoulder in a minor slip and fall incident and that she sought medical attention from noted orthopedic surgeon, Jacob D. Rozbruch, M.D., the day before the car accident. He diagnosed her with acute bursitis, arthritis and a possible rotator cuff tear. He injected her with lidocaine and kenalog.

At trial, Dr. Rozbruch testified that it was the car accident alone that was the immediate cause of the rotator cuff tendon tear because of the significant change in her examination between her initial visit the day before the car accident and her subsequent visit a few days thereafter. He said that before the car accident Mrs. David's muscle strength was perfectly normal and that the injections had given her a good result.

The defense presented two physicians, an orthopedic surgeon (Anjani Sinha, M.D.) and a neurologist (James Liguori, M.D.), each of whom examined Mrs. David four and a half years after the accident. They testified that her right shoulder injuries pre-existed the car accident. That testimony, though, was discounted by the trial judge because it contradicted written reports they had generated shortly after their examinations in which they had stated that it could not be determined whether the torn rotator cuff was related to the accident or was pre-existing.

The trial judge's decision to award $250,000 for pain and suffering has now been upheld on appeal in David v. Mallilo & Grossman (Appellate Term, 1st Dept. 2010). That award is within the range of recently sustained verdicts in rotator cuff surgery cases, as discussed by us most recently here.

The appellate judges noted that for several months after the accident plaintiff's injuries left her:

  • restricted in bathing, dressing and household activities
  • unable to drive, type, write on the blackboard or lift boxes at school where she worked

 And Dr. Rozbruch opined that Mrs. David's shoulder injuries included:

  • continued lack of full muscle strength, possibly permanent
  • recurring subacromial bursitis and pain
  • risk of recurrent tear of the rotator cuff with repeat surgery

Inside Information:

  • Mrs. David had been forced to accept  $25,000 to settle her Civil Court lawsuit because that's the most one may sue for in that court.
  • Pursuant to CPLR 325(d), the attorney malpractice lawsuit, commenced in Supreme Court, was tried in Civil Court but there was no limitation of monetary jurisdiction with respect to the $250,000 verdict. The parties consented to have the case tried by a judge instead of a jury.
  • Plaintiff's husband was awarded $25,000 for his loss of consortium claim.
  • In 2004, a $1,400,000 verdict was rendered against Mallilo & Grossman (in favor of another personal injury law firm) because a by-then disbarred associate had tapped into the plaintiff law firm's answering service to intercept calls from potential personal injury clients.
  • Mrs. David was represented by Philip A. Greenberg in her attorney malpractice suit. Given the result he obtained and the extensive opposition he faced at every turn, his advocacy was outstanding.

 

 

 

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$562,000 Appeals Court Award for Pain and Suffering from Thoracic Nerve Injury Causing Scapular Winging and Disabled Arm

Posted on December 12, 2010 by John Hochfelder

He was a tough 47 year old steel cutter employed for many years at the Goodyear-Dunlop plant in Tonawanda, New York (the Buffalo-Niagara Falls metropolitan area) when in 2004 he noticed his right arm was swelling. After visits to a local ER and his primary care doctor, Richard Winiarski ended up seeing a vascular surgeon who told him he had a blood clot and thoracic outlet syndrome, pain in the arm and shoulder areas caused by a rib compressing upon a subclavian blood vessel.

Here is the involved anatomy:

The doctor successfully treated the clot over the next six months with blood thinning medication and an injection (known as a lytic procedure). All seemed fine but she recommended a rib resection operation to prevent a recurrence of the blood clot. The surgery involved removing the first rib so as to allow more space for the blood vessel.

During surgery, though, the doctor did not identify the thoracic nerve (which runs through the belly of the middle scalene muscle) and the nerve was damaged  when she cut through the muscle using an electrocautery device - a surgical tool which is heated with electric current to cauterize, or burn, vessel tissue.

 

Immediately after the surgery, Mr. Winiarski had tremendous pain in the area of his scapula (or "shoulder blade") and within two weeks at physical therapy he was seen to have scapular winging (in which the scapula protrudes at rest or with arm and shoulder movement).

In the medical malpractice lawsuit that followed (Winiarski v. Harris - Supreme Court, Erie County, Index #3375/07), the jury found that the thoracic nerve had been injured by the surgeon  whose failure to identify the nerve was malpractice. The jurors then awarded plaintiff damages for his pain and suffering in the sum of $52,000 ($12,000 past - 4 years, $40,000 future - 24 years).

On appeal, in Winiarski v. Harris (4th Dept. 2010), plaintiff's pain and suffering award has been increased to $562,000 ($162,000 past, $400,000 future).

The appellate decision states that plaintiff suffers from scapular winging and a permanent limitation of his right shoulder and arm; however, there's more. Here are the details as to the injuries, which are permanent because the nerve cannot heal, grow back or be replaced:

  • 80% loss of use of his arm
  • can only lift his arm to 45 or 90 degrees (with decreasing range of motion)
  • pain requiring lifelong use of the narcotic medication Lortab
  • sleep deprivation and depression

Inside Information:

  • Mr. Winiarski was unable to resume heavy labor and was therefore fired from his job at Goodyear-Dunlop. He then took a job as a shoe salesman in a department store but had to stop after several months because it required him to climb ladders holding shoe boxes. The jury awarded him (and the appellate court affirmed) loss of earnings damages (including health insurance and pension) in the sum of approximately $1,300,000 ($200,000 past, $1,100,000 future). 
  • The court also upheld Mrs. Winiarski's claim for loss of consortium in the sum of $120,000 ($20,000 past, $100,000 future).
  • Defense counsel claimed (unsuccessfully) that the trial judge committed reversible error when he granted plaintiff an adjournment of several days to start his proof. The doctor was scheduled to be out of town at a medical conference and objected to the adjournment because it would mean she'd be unable to attend the end of the trial proceedings (the defendant did in fact miss summations and the judge's jury instructions).
  • The trial judge had increased the future pain and suffering award to $540,000 - an amount deemed $140,000 too much by the appellate judges. It appears that they wanted to bring the award in this case somewhat more in line with the $500,000 pain and suffering award affirmed recently in Garrow v. Rosettie Assoc. (3d Dept. 2009), one of the few cases dealing with injuries very similar to those sustained by Mr. Winiarski.

 

 

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Trial Judge Upholds New York Jury's $3,200,000 Pain and Suffering Verdict for 44 Year Old Electrician with Tibia-Fibula Fractures and RSD

Posted on January 17, 2010 by John Hochfelder

Almost ten years ago, a month after the Great Neck, New York commercial office building at 1010 Northern Boulevard had been constructed and occupied, there was a problem with some of the emergency backup lighting fixtures. The tenant notified the building owner who in turn notified its general contractor. Then, the electrical subcontractor was notified and then the manufacturer who engaged an electrical services corporation to send out an electrician, Daniel Hernandez, to see what the problem was.

So, on July 21, 2000, there was Hernandez, at the site, on a ladder, replacing the ballast on a defective lighting fixture when he received an electrical shock, fell from the ladder, broke his leg and promptly sued everyone involved – the owner, general contractor, tenant and the manufacturer.

This is the actual building where Hernandez fell:

The lawsuit was based on Labor Law Section 241(6) which provides protections to workers injured at construction sites. Plaintiff claimed that his injuries resulted from a violation of a regulation that prohibits work on electric circuits unless there is protection from electric shock by de-energizing the circuits and grounding them.

The trial began on October 6, 2008 and ended with a jury verdict on November 3, 2008 finding that Hernandez was shocked and fell because wires were not properly grounded and the power was left on.

Here's an electrician on a ladder working on ceiling lights just as Hernandez was:

In assessing damages, the jury heard from various doctors and the plaintiff. They testified that Hernandez sustained comminuted, displaced fractures of his right tibia and fibula requiring open reduction and internal fixation surgery (the placement of an intramedullary rod and screws from his knee to his ankle). The fibula fracture never healed – it was non-union. Furthermore, and most importantly, Hernandez developed reflex sympathy dystrophy (RSD) affecting both legs.

Here is what the tibia looks like after surgery with an intramedullary rod in place:

For pain and suffering the jury verdict was $3,166,667 ($1,000,000 past – 8 years, $2,166,667 future – 25.8 years). In a decision issued the day before Christmas last month, the trial judge, Louis B. York, upheld the award in full in Hernandez v. Ten Ten Co., after a post-trial motion by the defense claiming it was excessive. The defense argued that no more than $1,680,000 should be deemed reasonable

At first glance, more than $3,000,000 for tib-fib fractures seems excessive. Within the past year, we reviewed tib-fib fracture cases, here, discussing recent appellate court decisions that have upheld awards in the range of $1,100,000 to $1,500,000. In the Hernandez case, though, there are significant additional injuries such as RSD and plaintiff's:

  • inability to walk without crutches
  • severe, permanent and progressive loss of right knee and ankle range of motion
  • chronic persistent pain requiring lifelong use of narcotic pain medication
  • inability to play with his children
  • clinical depression requiring anti-depressant medication

In a well-reasoned opinion, the trial judge reviewed prior appellate court decisions dealing withdamages in RSD cases (Jeffries v. 3520 Broadway Management Co. [2007], Brown v. City of New York [2003] and Valentine v. Lopez [2001]) and they appear to be relevant and supportive of his decision to uphold this large verdict. For additional information on recent RSD cases, see our posts here and here.

Inside Information:

  • Plaintiff was also awarded $1,900,000 for 19 years of lost earnings which the defense argued should be dismissed because there was no vocational rehabilitation expert testimony to justify the plaintiff’s claim that he could no longer work at all. The judge properly upheld the lost earnings verdict noting that the doctors had testified plaintiff was incapable of holding any job so no need for vocational rehabilitation expert testimony.
  • Plaintiff's wife was awarded $341,666 for the loss of her husband’s services for the eight years leading up to trial but nothing at all for future loss of services. The defense had argued that this award was excessive to the extent it exceeded $75,000.
  • The nearly 10 year delay from the accident to the verdict was due in part to an earlier appeal. In 2004, the defense had moved to have the entire case dismissed on the ground that the Labor Law did not apply because the building was not under construction at the time of the accident. That decision was reversed on appeal in 2006 and the case allowed to proceed to trial.
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Loss of Consortium Claim Follows Arrest of College Basketball Coach

Posted on March 11, 2009 by John Hochfelder

On December 18, 2008, University of Mississippi's basketball coach, Andy Kennedy, was arrested in Ohio for assault following an altercation with Mohammed Jiddou, a Cincinnati cab driver. The criminal trial is set for April 20, 2009.

But that's not what's prompting this post. What's blogworthy here is the lawsuit the coach filed the day after his arrest: he sued the cabbie for defamation claiming that the cabbie's statements to the media (repeating the allegations he made to the police that formed their basis for the arrest) were false and malicious and caused a barrage of media coverage causing the coach "significant distress" entitling him to money damages.

Bear with us, here comes the point: three days later, the coach brought his wife Kimber into it and they filed an amended complaint adding a claim for loss of consortium. The amended complaint states that as a direct result of the false and malicious statements made about Coach Kennedy, Kimber Kennedy has suffered a loss of consortium with her husband.

And the media reaction has been: you've got to be kidding coach. And I must say I agree.

This loss of consortium claim is ridiculous, frivolous and worthless. Here's why:

  • filing a defamation suit one day after his arrest leads many to conclude that the filing was not genuine but instead a strategic ploy, a quick fire reaction
  • it's unlikely any significant money could ever be recovered from the cabbie, even if the coach were to win his defamation lawsuit
  • filing the loss of consortium claim three days later as an amendment also smacks of a strategic ploy, a measure designed to focus away from the assault and on to the poor coach and his wife and their alleged damages

I don't buy it and don't think anyone but the coach, his wife and their attorneys believe there's any merit to the consortium claim. Nor do some local observers, such as Legal Schnauzer, who refer to Mrs. Kennedy as "hot" and "scorching" suggesting that there's no way this overachieving in the wife department fellow could have a claim for loss of consortium!

One Ohio attorney reports here that the loss of consortium claim is a speculative one, related to the decreased or limited sexual activity between the injured party and the spouse and the decreased or limited care, companionship and affection between them. It's therefore to be expected that the loss of consortium claim may make the parties' sexual activity fair game for questioning and exposure.

Well fair game it is and local media have jumped all over this story, for example here, here and here. And it's caught the attention of scholars nationwide too, such as Walter Olson at Overlawyered.

Counsel for the coach, Richard L. Katz (who is the founder of KMG Sports Management, an agency for professional athletes and college coaches), howls that the focus on the sexual element of Mrs. Kennedy's claim is irresponsible and that his client would not file a claim for that, nor would his wife. But counselor: that appears to be just what  you did file on behalf of your clients.

In all due respect, counselor, if you didn't want any focus on your clients' sex life then you shouldn't have filed the loss of consortium claim to begin with. As I've said before, this claim is rarely significant without accompanying devastating physical injuries. And that you simply don't have in this case.

We will follow this case and report on its conclusion - which could all come as soon as next month.

 

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Spouse Awarded $1,000,000 for Loss Of Consortium Claim

Posted on March 7, 2009 by John Hochfelder

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:

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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