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

Natalie Barnhard was an ambitious, energetic, bright 24 year old who'd gone to school to become a physical therapy assistant. On October 22, 2004, three months after  landing a job at an orthopedic physical therapy practice in Buffalo, Natalie had a catastrophic accident at work when a 600 pound leg extension machine tipped over and fell on top of her, crushing her neck and rendering Natalie a C-5 quadriplegic.

Here is a Cybex leg extension machine, similar to the one that fell on Natalie Barnhard:

The machine was not bolted to the floor and, while working with a patient, the machine fell on her when Natalie was standing on its 400 pound weight-stack side with her hands pulling on the top to stretch her arms and shoulder.

Natalie sued Cybex claiming it was liable for her injuries because (a) the machine was defectively designed (dangerously allowing it to tip with only 40 pounds of horizontal force) and (b) there was no warning of the machine's unstable condition.

Cybex argued that it was not liable because (a) Natalie's employer, Amherst Orthopedic Physical Therapy, P.C., should have anchored the machine to the floor and (b) it was unforeseeable that Natalie would misuse the machine and pull it over onto herself.

On December 7, 2010, after an eight week trial, an Erie County jury ruled that Cybex, Amherst Orthopedic and Natalie all shared some responsibility for the accident  (Cybex 75%, Amherst Orthopedic 20%, Natalie 5%).

The jury then awarded Natalie pain and suffering damages in the sum of $33,000,000 ($8,000,000 past - 6 years, $25,000,000 future - 42 years).

On appeal, in Barnhard v. Cybex Intl., Inc. (4th Dept. 2011), the liability findings have been affirmed but Natalie's pain and suffering award was reduced by $21,000,000 and now stands at $12,000,000 ($3,000,000 past, $9,000,000 future).

Natalie's quadriplegia has left her with minimal-to-no function of her nerves below the level of the injury meaning that she:

• will forever be unable to walk and is wheelchair bound
• has no functional use of her hands
• is incontinent and must rely on others to do catheterizations, bowel movements and all other personal hygiene
• does not have full use of her diaphragm, which interferes with her ability to sneeze or cough and leaves her with trouble even clearing her throat
• is unable to feed herself
• is in constant neck pain

Additionally, Natalie suffers from extreme emotional and psychological pain and depression arising out of decreased feelings of self-worth, agitation and frustration in her inability to function on her own and the loss of life's pleasures (including the break-up of her relationship with a young man she planned to marry and the inability to enjoy sexual relations).

In concluding that $12,000,000 was the maximum permissible award for pain and suffering in this case, the judges relied upon two cases:

1. Bissell v. Town of Amherst (4th Dept. 2008) - $10,000,000 ($3,000,000 past - 5 years, $7,000,000 future - 33 years) for a 39 year old man with lumbar fractures resulting in paraplegia, with motor function above his knees and the use of his upper body and hands but with loss of bladder, bowel and sexual functions
2. Allison v. Erie County Indus. Dev. Agency (4th Dept. 2006) - $5,000,000 ($1,000,000 past - 4 years, $4,000,000 future - 41 years) for a 31 year old man with a burst fracture at T-12 and lumbar fractures who required four level spinal fusion surgery and was left with bladder and sexual dysfunction and severe debilitating back pain but could do light household work and use a treadmill for 25 minutes

Curiously, the decision in Barnard v. Cybex Intl., Inc. omits any reference to Oakes v. Patel (4th Dept. 2011), a case decided by the same court only a few months ago, There, the court sustained a pain and suffering award of $9,600,000 ($5,600,000 past, $4,000,000 future - 18 years) for a 52 year old man with left sided paralysis and significant brain injuries who requires assistance with most personal needs.

Several other cases appear to be relevant in comparing pain and suffering awards that have been sustained by appellate courts in New York for injuries similar in type or severity to Natalie Barnhard's, including:

• Miraglia v. H&L Holding Corp. (1st Dept. 2007) - $10,000,000 ($5,000,000 past - 3 1/2 years, $5,000,000 future - 35 years) for a 45 year old man whose torso was impaled on a steel bar that severed his spinal cord and left him with complete paralysis and neurological dysfunction at and below the L-2 level
• Ruby v. Budget Rent-A-Car Corp. (1st Dept. 2005) - $10,000,000 ($2,000,000 past - 3 years, $8,000,000 future - 45 years) for a 25 year old man who suffered from a T-6 spinal cord injury and complete paraplegia
• Schifelbine v. Foster Wheeler Corp. (4th Dept. 2004) - $6,500,000 ($1,000,000 past - 3 years, $5,500,000 future - 38 years) for a 35 year old man with a fractured skull rendering him a quadriplegic and requiring an above the knee amputation

Inside Information:

• A press release was issued last week in which Cybex indicated it will seek permission to appeal to the state's highest court, the Court of Appeals.
• Over defendant's objection, testimony (from the patient Natalie was working with) that plaintiff was "monkeying around" on the machine prior to the accident was precluded as an impermissible opinion of a lay witness. Cybex argued that the accident could not have occurred without plaintiff's exertion of far more force on the top of the machine than she testified to (i.e., that she was merely leaning back while holding the top of the machine). The defense argued that the "monkeying around" testimony would have provided a relevant and important contradistinction to plaintiff's testimony for the jury to weigh.
• Plaintiff's award now stands at approximately $44,000,000: $12,000,000 for pain and suffering; $2,000,000 for past and future loss of earnings and $30,000,000 for past and future medical and life care expenses.
• The defense successfully argued on appeal that the approximately $800,000 jury award for future child care expenses should be vacated in its entirety because it was purely speculative. Plaintiff testified that she "hoped" to have two or three children after getting married but the defense pointed out that she was neither married nor pregnant and had never consulted with a doctor to learn whether she could conceive or carry a child.

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On February 5, 2002, Diane Garrison, a 44 year old housewife, was involved in a high speed motor vehicle accident in Ulster County, New York. The other driver admitted his liability for the crash in which Ms. Garrison's head struck the window of her car's door.

Only a huge impact can smash a car window:

Complaining of headaches and neck pain, Ms. Garrison was transported by ambulance to the hospital where she was treated and released in the absence of any findings of a fracture or other serious injury.

For the next six months, Ms. Garrison sat home in a chair with worsening headaches and neck pain. She was diagnosed with post-concussive syndrome; however, there were no objective medical tests that conclusively established the basis for her complaints.

Nonetheless, Ms. Garrison sued the other driver and, in a damages only trial, on December 22, 2008 the jury awarded her pain and suffering damages in the sum of $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years). That award has now been affirmed on appeal in Garrison v. Lapine (3rd Dept. 2010).

During the years after her accident, medical tests, including an MRI, a Magnetic Resonance Angiography ("MRA") and an Electroencephalogram ("EEG"), failed to reveal objective proof of any neurological damage. Finally, in June 2008, six years later (and only six months before trial), a four day ambulatory EEG showed spiking activity, cerebral dysfunction and electrical short circuiting in Ms. Garrison's brain's frontal and left temporal lobes.

Imagine walking around with these EEG wires attached for four days:

The new EEG result, her doctors testified, was conclusive proof that she had indeed suffered a traumatic brain injury ("TBI") of her left temporal lobe and diffuse axonal injuries that were responsible for her erratic behavior and disabilities which included:

• crying and saying wildly inappropriate and odd things
• trying to jump from moving cars on several occasions
• wandering into the street at night in her underwear
• stuttering and speaking in incomprehensible letters and words (Broca's aphasia and dysprodic speech)
• inability to socialize, cook or clean house
• constant fatigue
• unremitting headaches

The defense contended that plaintiff's problems were unrelated to the accident and were instead due to outside emotional factors such as the stress of caring for a relative with Alzheimer's or pre-existing anxiety and tinnitus. Furthermore, the defense argued after the verdict that $2,500,000 was an overly excessive pain and suffering award.

Denying a post-verdict motion by the defendant to reduce the pain and suffering award, the trial judge issued a decision on June 29, 2009 that was detailed and well researched. In particular, the Hon. Richard M. Platkin relied upon Popolizio v. County of Schenectady (which we discussed, here), an appellate court decision issued on May 21, 2010, in which $2,100,000 was found to be an appropriate pain and suffering award for a 56 year old man with TBI from a similar car accident.

As with Ms. Garrison, Mr. Popolizio's injuries did not result in a skull fracture or surgery and the MRI was negative. In both cases, plaintiffs sustained diffuse axonal injuries, suffered from many of the same symptoms (difficulties in cognitive and executive functions, depression, headaches and lack of energy) and disabilities (as to work and social life).

The $2,500,000 sustained award for TBI pain and suffering in Garrison v. Lapine is significant because, as we discussed here, here and here, most pain and suffering verdicts in TBI cases that exceed $1,000,000 and that are sustained on appeal involve one or more of the following:

• a skull fracture
• brain surgery
• significant bleeding in the brain or
• anoxia (lack of oxygen) at birth leading to paraplegia or qudriplegia

Inside Information: The jury's $400,000 loss of consortium award to Ms. Garrison's husband was sustained on appeal despite the fact that after the accident he had left the marital home for several weeks (after Ms. Garrison threatened to kill him) and he had been separated from her for 18 months before the accident.

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Shania-Gay Ffrench was 21 years old on February 3, 2000 when she went to the emergency room at Mount Vernon Hospital complaining of back pain. Doctors there suspected uterine fibroids and she was told to follow up with her primary care physician and her gynecologist. She did so.  She saw her internist Keith Edwards, M.D. who referred her to an orthopedist and she saw her gynecologist who performed a lysis of adhesions. Ms. Ffrench’s  pain persisted, though, and the cause was never diagnosed until a year later when an MRI revealed that her back pain was a product of a spinal tumor – an intramedullary astrocytoma (the white spot on the MRI).

The tumor took three surgeries and six years until it was finally and fully removed in 2007. Ms. Ffrench was left substantially unable to use her legs and she blamed her doctors for failing to diagnose and remove the tumor early enough so that her injuries could have been avoided.

A medical malpractice lawsuit was started (Ffrench v. Agnant - Supreme Court, Westchester County; Index # 14401/02) against nearly everyone involved in Ms. Ffrench’s care since 2000

After several years of litigation, on July 23, 2007, the judge issued an order absolving the neurosurgeon who removed the tumor and his hospital from any fault.

Four defendants settled after opening statements for a total of $875,000, as follows:

• $600,000 by the gynecologist and his practice,
• $100,000 by the initial hospital and
• $175,000 by a primary care doctor.

Dr. Edwards refused to settle and the trial proceeded against him alone.

Dr. Edwards based his defense on the fact that he had seen Ms. Ffrench only three times – on February 7, 2000 (for back pain), February 26, 2000 (to clear her for gynecological surgery) and July 6, 2000 (for a headache) and he never treated her again. Furthermore, he claimed, plaintiff herself bore responsibility because, in January 2001, her new primary care physician told her to see a neurologist and she didn't do so until July 2001 when the MRI confirmed the tumor.

On August 31, 2001 Ffrench underwent surgery with a neurosurgeon who planned to do a biopsy and “debulk” or remove as much of the tumor as possible. During surgery, though, a somatosensory evoked potential (SSEP) test was abnormal, indicating that the spinal cord had become dysfunctional. The surgery had to be stopped.

French remained hospitalized for six months and then underwent four months of rehabilitation. As of trial in July 2009, she was able to walk only short distances and only with forearm crutches and leg braces. She frequently required the assistance of a wheelchair.

The jury returned a verdict finding Dr. Edwards 30% at fault, the original hospital 25%, the gynecologist and his practice 25%, a primary care doctor 10% and the orthopedist 10%.

Then, the jury assessed damages in the total sum of $49,750,000 as follows:

• $29,500,000 pain and suffering ($4,500,000 past – 8 years, $25,000,000 future – 50 years),
• $18,450,000  medical expenses and rehabilitation services ($450,000 past, $18,000,000 future)

Defendant made a post–trial motion under New York’s CPLR 4404 seeking a judgment of dismissal notwithstanding the verdict arguing that:

• the plaintiff had failed to establish proximate cause -  i.e., that his alleged negligence (failing to refer plaintiff for neurological testing) actually caused plaintiff’s injuries,
• the verdict was against the weight of evidence because there were no medical records substantiating plaintiff’s claim that she complained of neurological symptoms (such as numbness in her legs) that would have led him to refer her for neurological testing, and,
• the amount of damages was grossly excessive

The trial judge denied the post-trial motion in a brief opinion that was devoid of any meaningful discussion of his reasoning. It’s not unusual for trial judges to give such short shrift to post-trial motions. Indeed, it’s well known and oft-stated that instead of delving into the issues, discussing the parties’ respective points and comparing the verdict amounts with other relevant prior cases, trial judges routinely leave it to the parties to appeal to the appellate division post-trial issues such as whether the jury’s verdict was against the weight of credible evidence or its damages awards were unreasonably excessive or minimal.

A notice of appeal has been filed and if this case doesn’t settle then the appellate court  will rule upon liability issues as well as damages and the appellate judges will most likely conclude that the $29,500,000 pain and suffering verdict is unreasonably excessive. Our analysis of appellate court decisions in which pain and suffering verdicts in the several millions of dollars range have been upheld indicates that the Ffrench verdict would be drastically reduced.

Generally, the largest sustained pain and suffering verdict cases involve paraplegia or quadriplegia. Here are some recent examples:

• Miraglia v. H&L Holding Corp. (1st Dept. 2007) - $10,000,000 for construction worker rendered a paraplegic after being impaled on a rebar
• Ruby v. Budget Rent A Car Corp. (1st Dept. 2005) - $10,000,000 for 25 year old rendered a paraplegic
• Desiderio v. Ochs (1st Dept. 2002) - $4,500,000 for infant with devastating neurological injuries including loss of gag reflex, inability to eat without feeding tube, inability to walk without assistance and brain damage

In contrast to the plaintiffs in Miraglia, Ruby and Desiderio, Ms. Ffrench, while undoubtedly in great pain and suffering tremendously, can walk with assistance, attend to her job (at a desk for a health insurance plan), cook and is able to participate - albeit with much difficulty -  in many other activities of daily living. It's extremely unlikely that an appellate court would sustain even one-half of the future pain and suffering award in the Ffrench case. And my guess is that the $29,500,000 would be cut by a lot more than one-half.

A so-called collateral source hearing is set in this case for next month. That’s where the judge will hear evidence about whether any part of the verdict for medical expenses and rehabilitation services will be replaced or indemnified by collateral sources such as insurance. If so, the verdict will be reduced to that extent.

Inside Information:

• Dr. Edwards asserts that plaintiff never proved what actually caused the loss of function in her legs; he also claims that damages against him should be limited to any worsening of plaintiff's condition from February 2000 to August 2001 rather than the sequelae of the surgery. Resolution of these issues on appeal may drastically affect the ultimate outcome in this case.
• After trial, plaintiff’s attorney requested that the judge allow him an increased legal fee (i.e., one-third of the recovery instead of the lesser statutorily prescribed sliding scale fee) due to the complexity of the case and the unusual amount of effort required to bring it to trial. Joined by his client and without opposition, the trial judge approved the request. It seems that plaintiff had a change of heart (and attorneys) because thereafter she filed a motion to reargue (denied) and a notice of appeal (pending) seeking a reversal of the fee increase decision.
• Before trial, plaintiff sought $950,000 to settle with Dr. Edwards. During trial, that settlement demand dropped to $600,000. Now, Dr. Edwards is exposed to a judgment of almost $15,000,000 (his 30% portion of the verdict).
• Dr. Edwards has $2,000,000 of malpractice insurance. Given the size of the verdict and the several years spanning the claimed negligence, though, plaintiff’s counsel may try to implicate two or more years of malpractice coverage so that there wold be more coverage, perhaps a total of $4,000,000. Such claims are not unusual in cases like this but here it would likely fail because of the very short period in which Dr. Edwards actually treated the plaintiff.
• Plaintiff’s attorney, Christopher Meagher, obtained another huge malpractice verdict in Westchester County in December 2009 - $56,000,000 (including $22,000,000 for pain and suffering) in Swanson v. Northern Westchester Hospital Center (Index # 16743/07) for a six year old boy with brain damage.

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As reported by Walter Olson at Overlawyered, a 20 year old Merritt Island, Florida man just won a $76,000,000 jury verdict for damages he suffered as a result of a diving accident in which he broke his neck on the bottom of a shallow river. The pain and suffering component was $52,800,000. He is now a quadriplegic (all four limbs are paralyzed).

Apart from the size of the damages award, this case (Hoffman v. C&D Dock Works) is noteworthy also because of other factors, as reported in local newspapers:

• The young man answered a dare and sprinted down a dock as he jumped into the river.
• The defendant, C&D Dock Works, filed for bankruptcy protection and did not defend itself at trial.
• The defendant claimed there was no negligence because there was a rail at the edge of the water indicating a potential danger; however, a judge ruled last year that the defendant was negligent.

These types of headline cases leave many of our citizens feeling that the civil justice system has run amok. Has it? Phillip Howard, the author of upcoming book Life Without Lawyers, summed up this sentiment well in an op-ed article in yesterday's Wall Street Journal entitled "How Modern Law Makes Us Powerless."

One wonders what it is the dock owner should have done to prevent a 20 year old boy from answering a dare, running down a dock and jumping into a river alongside which he had been working. As the dock company's former owner said: "There's got to be some common sense."

Then there's the damages award. Mind you, I practice traumatic injury trial law exclusively and am always trying to maximize my client's case and to obtain the most in damages that the law allows. And I am keenly aware that no amount of money ever compensates a traumatic injury victim such that it makes the whole thing "worth it." But in my experience I can tell you that there's no way this quadriplegia pain and suffering damage award would be sustained in New York.

The jury awarded of $52,800,000  for this young man's pain and suffering. And that was in addition to awards for so called special damages that are easily calculable: past and future medical expenses in the sum of $23,200,000 and lost earnings in the sum of $672,000.

In New York, juries have awarded tens of millions of dollars to paralyzed victims of negligence only to see the appellate courts substantially reduce those verdicts.

• Brown v. City of New York (2d Dept.; 2000) - $10,000,000 past and future pain and suffering awards for two brothers, 26 and 27 year old rendered quadriplegic and pentaplegic reduced to $4,000,000 each.
• Driscoll v. New York City Transit Authority (2d Dept., 1999) - $10,000,000 jury verdict for past and future pain and suffering for a 19 year old rendered quadriplegic in a subway accident reduced to $2,000,000.
• Cruz v. Long Island Railroad Co. (2d Dept.;,2005) - $28,000,000 jury award for past and future pain and suffering for a  a person rendered a T12/L1 paraplegic reduced on appeal to a total of $12,000,000.

The Hoffman case is on appeal and as I indicated, it's very unlikely that any significant amount will be collected by the plaintiff. Even if the verdict on liability stands and even if the amount of damages is upheld, there remains the issue of payment. It's clear that the defendant allowed this case to be tried without a defense because there was no liability insurance and there are no significant assets from which collection of a judgment can be made. The defendant is now bankrupt, the plaintiff of course remains tragically paralyzed and our system of civil justice has been tested once again.

We will follow this case and report on future developments - both with respect to Mr. Hoffman and with respect to our civil justice system.

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