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

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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What were they thinking? In a stairway trip and fall negligence case, the jury found:

1. plaintiff was negligent but defendant building owner was completely at fault and
   
2. the 35 year old plaintiff was entitled to $5,000,000 for past pain and suffering but zero for future pain and suffering

No one knows for sure what the jury was thinking but it’s certain that a brand new jury will be chosen to rule on these issues because the jurors who made these findings either were hopelessly confused, unable to understand the trial judge’s instructions or acted in inexplicable, irrational ways.

In any event, after six years of litigation, nine days of trial and countless hours of effort by lawyers for both sides, Davin Dessasore’s lawsuit against the New York City Housing Authority (the “NYCHA”) must now begin anew, according to a recent decision by an appeals court in Dessasore v. NYCHA (1st Dept. 2010).

It all began on December 11, 2003 when the then 31 year old Mr. Dessasore visited his mother at her second floor apartment located at 1085 Bruckner Boulevard in the Bronx, known as the Bronxdale Projects (an NYCHA building).

Here's one of the original 28 seven-story buildings of the Bronxdale Projects, built in 1955:

After his visit, Davin started to descend the stairs when he claims he tripped and fell to the bottom because of a detached handrail lying on the top step of the dimly lit staircase.

No one was with him or saw him fall but it was undisputed that Dessasore had been talking on his cell phone before and after he fell. The defense produced his cell phone records at trial in an effort to prove that plaintiff was careless and caused his own accident. He was cross-examined extensively on the issue of when exactly he was chatting on the phone.

Do not walk down stairs talking on your cell phone:

Plaintiff admitted he either received or made a phone call as he was leaving the apartment and was walking toward the stairs but he claimed he then put the phone away a moment before he fell. The jury found otherwise and ruled that Dessasore was negligent in speaking on his cell phone while descending the stairs but the jury ruled that his negligence was not a proximate cause of his injury and that the NYCHA was wholly at fault for the dangerous condition of the stairway. And then the jury also awarded Dessasore $5,000,000 for his injuries (details on this unusual damages verdict below). Here is a copy of the verdict sheet given to the the jurors in this case on which they recorded their findings.

The appellate court stated that the jury’s finding of 100% liability against the NYCHA without any reduction for plaintiff’s share of the fault was “irreconcilably inconsistent.” The judges noted three important pieces of evidence:

1. plaintiff was not looking down before he started to descend the stairs,
2. he wasn’t paying attention to his surroundings, and
3. he was talking on his cell phone just before he fell.

Therefore, the appeals judges concluded that it was “logically impossible” to find plaintiff was negligent without also finding that his negligence was a proximate cause of the accident. So, the entire liability verdict was dismissed and a new trial ordered on all issues.

The $5,000,000 pain and suffering damages award (all for the past five years and nothing for the future) was also addressed by the appellate court. The judges found it to be irrational, given the extent of plaintiff’s injuries and evidence of their permanence. Both the trial judge and the appellate bench concluded that the jury either did not understand the trial judge’s instructions on damages or did not follow them. Therefore, the new trial on damages ordered by the trial judge was appropriate.

After he fell, Dessasore was taken by ambulance to a local hospital where he was treated and released. Within days, he was in excruciating back pain and within a month of the accident, he claimed radiating pain down the left side to his foot and an MRI showed herniated discs at L4-L5 and L5-S1.

In March 2005 Davin underwent an endoscopic diskectomy at L4-L5 and L5-S1 (a minimally invasive procedure, described here). Four months later, he underwent a second surgery – a lumbar fusion – in which a cage and six screws connected by steel bars were implanted in his back.

Here is what the spine looks like after a lumbar fusion with six screws implanted:

Unfortunately, the surgeries were unsuccessful, Dessasore’s condition worsened and by the time of trial he described nearly five years of unremitting pain, the lack of any feeling in his left arm and hand (except his thumb), the inability to talk even short distances without literally dragging his left leg to move and daily reliance on a powerful prescription pain drug (Oxycontin). His doctors diagnosed him as suffering from hemiparesis (partial paralysis affecting one side of the body).

People afflicted with hemiparesis usually have a flexed elbow, stiff knee and an inverted ankle, with the lower limb swinging forward in a semicircular fashion and often require assistive devices like this:

The defense doctors disputed the finding of hemiparesis (it's most often caused by a stroke or cerebral palsy, not trauma) testifying that there was no evidence of a spinal cord injury and no anatomical basis for many of plaintiff’s complaints. Essentially, while conceding that the MRI studies showed the presence of herniated discs, they concluded that plaintiff has preexisting degenerative disc disease because of the presence of osteophytes and that his symptoms and neurological findings were way out of proportion to the findings in his imaging studies.

The jury apparently rejected the defense doctors’ conclusions because they awarded plaintiff $5,000,000 for his past pain and suffering.

Defense counsel attacked the $5,000,000 awarded for past damages as wildly excessive to the extent it exceeded $900,000. Given recent appellate court decisions ruling on multi-million dollar past pain and suffering awards, it appears there is merit to the defense position. Awards for 5-10 years of past pain and suffering in the range of $1,000,000 to $3,000,000 tend to be upheld on appeal only for persons with catastrophic physical and brain injuries such as:

• Smith v. Au (1st. Dept. 2005) - $1,000,000 for past pain and suffering (6 years) upheld for a 37 year old man who, due to medical malpractice, sustained  a stroke with permanent brain damage and right-sided paralysis
• Reed v. City of New York (1st. Dept. 2003) - $2,500,000 for past pain and suffering (7 years) upheld for a 43 year old woman in a pedestrian knockdown car accident who sustained several skull fractures and significant and progressive brain damage that left her permanently demented
• Weinstein v. New York Hospital (1st. Dept. 2001) - $2,000,000 for past pain and suffering (9 years) for a 22 year old college student who, due to medical malpractice, sustained brain damage with a permanent seizure disorder, memory deficits and loss of balance

The appellate court did not adjust the $5,000,000 award for past pain and suffering because of its rulings that the liability verdict was to be set aside and that the failure to award future damages may have been because the jury meant to include such damages in the $5,000,000 it did award (but denominated for past damages only). Since the appellate judges properly declined to speculate why or how the jury reached such an odd result, they simply ordered a new trial on all issues.

Inside Information:

• Defense counsel attacked plaintiff’s credibility at trial and on appeal – plaintiff was a prior convicted felon who spent 4 ½ years in jail for drug dealing.
• The jury also declined to make any award for medical expenses (past or future) despite evidence that plaintiff incurred past expenses of about $160,000 and would require lifelong medical care that his attorneys suggested would amount to about $800,000.
• After a nine day trial and the start of deliberations at the end of the day, the jury deliberated for a mere one hour (one juror had said he had a personal problem necessitating his travel out of town and would not return to court the next day). Clearly, they rushed and wanted to be done quickly.

Shortly after trial, the defendant offered $2,000,000 to settle but it was rejected. On appeal, plaintiff’s attorney asked the court to uphold the $5,000,000 for past damages and award an additional $2,000,000 for future damages. The court declined to do either and now, plaintiff has received nothing and faces a new trial on all issues.

To recover any damages whatsoever at the new trial, plaintiff will have to prevail on liability and the defense will surely argue that Dessasore was so careless that the jury should find he completely caused his own accident and injuries and should recover nothing at all. We will follow this case and report on developments.

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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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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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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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