On November 4, 2004, then 44 year old Charles Malmberg underwent an anterior cervical discectomy and fusion surgery to remove a degenerative disc and osteophytes at the Syracuse Veterans Administration Medical Center.

After the surgery, X-rays and an MRI showed he suffered from spinal cord impingement at several points, with excessive edema in the spinal cord. He was diagnosed with incomplete quadriplegia.

Malmberg filed a medical malpractice claim against the Veterans Administration in 2006. After bench trials on liability and damages, the court concluded that the defendant is liable and awarded substantial pain and suffering and economic damages.

Multiple appeals followed and the matter ultimately was resolved after the decision in Malmberg v. United States of America (N.D.N.Y. 2020)  ordered that an award of pain and suffering damages in the sum of $18,000,000 ($7,500,000 past – 15.5 years, $10,500,000 future – 20.5 years) “does not deviate materially from reasonable compensation.”

Here are some of the injury details:

  • No use of legs, cannot stand and wheelchair bound for life
  • Very limited use of hands
  • Daily uncontrollable spasms
  • Incontinence
  • Significant daily physical pain requiring pain medications
  • Loss of sexual function
  • Depression and multiple psychological issues

Inside Information:

  • In his pre-suit administrative claim, plaintiff sought $6,000,000 in damages. Much of the ensuing litigation concerned his application to increase that “ad damnum” amount.
  • Prior to becoming paralyzed, plaintiff was completely independent although he was not working because of his cervical radiculopathy.
  • According to one of plaintiff’s attorneys, Robert B. Nichols, this case settled for $21,500,000 after the district court’s recent decision, more than 16 years after the surgery that left Mr. Malmberg paralyzed.

On November 12, 2011, Cinthia Arcos delivered a healthy baby at Forest Hills Hospital. Her obstetrician gynecologist, Yehuda Bar-Zvi, M.D., delivered the baby utilizing vacuum extraction.

During the delivery, Ms. Arcos suffered a third degree laceration, which means that the laceration involved the anal sphincter. Dr. Bar-Zvi performed a repair and she was discharged from the hospital two days later. Ultimately, though, it was determined that Ms. Arcos, then 27 years old, had a rectovaginal fistula (an abnormal connection between the rectum and the vagina).

In her ensuing medical malpractice lawsuit against her physician and his medical practice, the Queens County jury found that the doctor did not detect and repair a 4th degree laceration in the rectal mucosa after the delivery (and failed to obtain informed consent to the vacuum delivery method) and they  awarded Ms. Arcos pain and suffering damages in the sum of $920,000 ($800,000 past – four years, $120,000 future – 12 years). Defendants appealed arguing that the award was excessive; however, in Arcos v. Ben-Zvi (2d Dept. 2020), the award has been affirmed.

Here are the injury details:

  • development of rectovaginal fistula causing plaintiff to pass liquid stool and gas through her vagina
  • two subsequent surgeries: first, seven months after delivery and then four months later for a repeat vaginal repair
  • continuing pain on intercourse and moving bowels, stool leaks due to decreased strength in sphincter and passage of gas through vagina

The defendants argued that plaintiff’s fistula had been successfully repaired, her complaints had been resolved less than a year after her delivery and she did not require any additional treatment.

Plaintiff’s husband was awarded damages for the loss of his spouse’s services and society in the sum of $100,000 (past only). The defendants argued that this award should be set aside in its entirety because the husband did not provide any testimony to support the award (he wasn’t asked any questions about his loss of society and services). There was, though, testimony from Ms. Arcos about how their sexual relationship suffered and the appellate court affirmed this aspect of the award.

Inside Information:

  • At trial, the defendants argued there was no malpractice but afterwards they did not challenge the jury’s findings on liability and causation.
  • After trial, the defendants urged “a reduction of the jury’s award to no more than $700,000 would be appropriate and just compensation.”

James Stock, Jr. was exposed to asbestos used in and on valves manufactured and supplied by Jenkins Bros. when he was employed by by New York Wire Mills in Tonawanda from 1979 to 1986. In August 2015, Mr. Stock went to the hospital complaining of abdominal pain that had been bothering him for a few months. By December 2016, he was formally diagnosed with mesothelioma.

Mr. Stock sued  Jenkins Bros. and others (manufacturers, sellers and distributors) in Erie County claiming that he’d been exposed to asbestos which caused his mesothelioma and that the defendants were liable because they failed to warn him about the hazards of asbestos exposure.

On September 24, 2018, the jury found in plaintiff’s favor and awarded him pain and suffering damages in the sum of $6,000,000 ($4,500,000 past – three years, $1,500,000 future – one year). Jenkins Bros., by then the sole remaining defendant after others settled, argued that the damages award was excessive. The trial judge denied defendant’s motion and, in Stock v. Air & Liquid Systems Corp. (4th Dept. 2020), the verdict has been affirmed.

Here are the injury details:

  • Abdominal and chest pain beginning three years before trial, intermittent at first but continuous for the two years prior to trial
  • 8 surgeries including a thoracotomy, rib resection, extrapleural pneumonectomy and bronchial stump resection
  • Four rounds of chemotherapy and one of radiation, with complications
  • Unable to continue recreational activities such as hunting, golfing and working out
  • Unable to continue working as a police officer
  • Unable to play with grandkids or perform household chores

Plaintiff, 60 years old at the time of trial, died in September 2019 while the appeal of this case was pending.

Inside Information:

  • Plaintiff was also awarded past and future lost earnings in the sum of $460,000 and his wife of 39 years was awarded past and future loss of her husband’s services and society in the sum of $500,000.
  • In his summation, plaintiff’s attorney asked the jury to award $10,500,000 for pain and suffering while defense counsel suggested no more than $700,000. After trial, defense counsel requested that the pain and suffering award be reduced to $2,000,000.

 

 

On February 18, 2013, Judy Zhou, then a nine-year-old novice skier, was injured while skiing at the Tuxedo Ridge Ski Center in Tuxedo. On her first run of the day, Judy took the chairlift to the top of the bunny slope, a beginner’s hill. On her way down, she crashed into a white PVC pole which was being used as a stanchion to hold up an orange rope that designated where to wait for the ski lift.

In the ensuing lawsuit, the Queens County jury returned a verdict against the ski center and awarded pain and suffering damages in the sum of $18,000,000 ($3,000,000 past 4 1/2  years, $15,000,000 future – 66 years).

Defendants appealed arguing that the trial judge unfairly gutted their defense by erroneously (a) excluding critical video deposition testimony of a non-party ski patroler, (b) redacting plaintiff’s admission from the accident report (that she was injured when she fell and hit part of a “ski slow” sign), and (c) refusing to charge the jury on assumption of risk. In Zhou v. Tuxedo Ridge, LLC (2d Dept. 2020), the appellate court agreed with each of the defendants’ arguments and the liability verdict has therefore been reversed with a new trial to be held on the issue of liability.

Defendants had also argued alternatively that the damages verdict was a “runaway verdict” that should be reduced to the mid six figures. The appellate court addressed the damages issue holding that the jury awards for past and future pain and suffering deviated materially from what would be reasonable compensation. Accordingly, the court ordered that if liability against the defendants is found in the new trial then there shall be a new trial on damages as well unless plaintiff consents to reduce the first jury’s $18,000,000 award to $2,200,000 ($950,000 past, $1,250,000 future).

Here are the injury details:

  • jagged displaced Salter-Harris II femur fracture destroying 50% of the growth plate
Salter-Harris Femur Fractures
  • fixation surgery with placement of hardware
  • hospitalized two days, casted six weeks followed by custom made long-leg brace for two years
  • one-half inch leg shortening, valgus deformity and significant pelvic tilt causing scoliosis

Plaintiff’s treating orthopedic surgeon stated at trial that her conditions are permanent and lifelong and he recommended two complex surgeries – including an osteotomy followed by external fixation that he said is “hideous” and would for sure have endless complications.  Her doctor also opined plaintiff will need a total knee replacement when she is in her 30’s. The defense presented no medical expert testimony.

Plaintiff argued that this is a case of deformity of a child during her most active growth age, causing dramatic deformity of her skeleton, leg-length shortening, leg angulation, tilting of the pelvis, all “affecting every part of her body and life for the remainder of her days.” The defense noted that plaintiff ran on her school track team, participated fully in her physical education classes, no doctor placed any restrictions on her activities, and she never took any pain medications.

Inside Information:

  • Defendants had a chance to settle the case before the damages verdict for $4,500,000 (the limits of their liability insurance policy less 10%) but they refused.
  • The jury also awarded future medical expenses in the sum of $1,000,000. Plaintiff’s doctor, though, testified that the cost of specific future medical expenses would be about $110,000. The appellate court ordered a reduction of the future medical expenses award to $115,000.

On June 22, 2011, Pei Ru Guo, a 54 year old home health aide, was a passenger in her husband’s car when it was struck at an intersection in Whitestone by a car driven by a 17 year old. Ms. Guo sustained injuries and sued the driver and owner of the other vehicle.

A Queens jury determined that the other driver was fully at fault and awarded plaintiff pain and suffering damages in the sum of $200,000 ($100,000 past – seven years, $100,000 future – 10 years). Defendants appealed both the liability and the future damages verdicts.

In Guo v. Efkarpidis (2d Dept. 2020) both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • 10 fractured ribs

  • pneumothorax and hemothorax, requiring fluid drainage procedure
  • hospitalized for nine days
  • unable to return to work for five months
  • eight months physical therapy
  • continuing pain, spasms and limited ranges of motion and function of neck, lower back and shoulder

Defendants’ expert orthopedic surgeon opined that plaintiff had fully recovered from her injuries

Inside Information:

  • Plaintiff settled with her husband’s insurance company for $50,000 before the lawsuit.
  • Defendant driver’s passenger friend testified on her behalf but was caught in a material falsehood when she said they had only a casual friendship and would not have appeared as a witness without being subpoenaed. Social media posts, though, showed them vacationing together and using the hashtag “best friend.”

 

On July 6, 2011, Nicholas Natoli, a 40 year old laborer, was injured when he and his coworker attempted to move a large wooden pallet at a construction site. His coworker lost his grip and the 175 pound pallet fell on Mr. Natoli causing substantial injuries to his arm and shoulder. The incident took place on the roof of Fashion Industry High School at 24th Street in Manhattan.

In Mr. Natoli’s ensuing lawsuit, the Manhattan jury found that the defendants (New York City – the owner of the school – and its Department of Education and School Construction Authority) were liable under Labor Law Section 240(1) by not furnishing a safety device with proper protection to remove the pallet from the roof.

The jury awarded damages as follows:

  • past and future lost earnings – approximately $3,000,000
  • past and future (30 years) medical expenses – approximately $1,300,000
  • past and future pain and suffering – $-0-

The trial judge granted plaintiff’s motion for additur based upon the argument that the jury’s failure to award damages for past and future pain and suffering was inconsistent with the awards for lost earnings and medical expenses. She ruled that the damages for pain and suffering should be increased from zero to $1,000,000 ($500,000 past, $500,000 future).

In Natoli v. City of New York (1st Dept. 2020), the appellate court affirmed the trial judge’s damages increase.

Here are the injury details:

  • right arm near complete full thickness tear of the biceps tendon, requiring surgical repair on 8/9/11

  • right shoulder Bankart and partial thickness rotator cuff tears, requiring arthroscopic surgical repair on 7/6/12
  • C5-6 radiculopathy, requiring laminectomy on 11/21/16

The defendants argued that plaintiff recovered fully from his biceps tendon repair surgery, his shoulder tears were not causally connected to the accident and his neck pain was due to degeneration caused by a 2010 motor vehicle accident.

Inside Information:

  • One of the six jurors determined that plaintiff was entitled to $3,100,000 for pain and suffering damages.
  • Subsequent to the 3/29/18 verdict, plaintiff  underwent C5-6 discectomy and fusion surgery.
  • The case settled after trial for the sum of $6,405,000.

 

On June 29, 2014, Elza Garzon underwent an endoscopy (a procedure used to visually examine the upper digestive system with a tiny camera on the end of a long, flexible tube) performed by Steven Batash, M.D. during which a portion of her small intestine was perforated.

She sued the doctor for medical malpractice and, after ruling in her favor on liability, the Queens County jury awarded pain and suffering damages in the sum of $2,500,000 ($1,500,000 past – 2 3/4 years, $1,000,000 future – 33 1/2 years).

In his post-trial motion, the defendant argued successfully that the award was excessive and the trial judge ordered a reduction of the pain and suffering award to $650,000 ($550,000 past, $100,000 future). He did not challenge the liability finding against him.

In Garzon v. Batash (2d Dept. 2020), the appellate court ruled that the trial judge’s reduction of the future damages award was too steep and it increased that portion of the award to $500,000 with the result that the pain and suffering award stands at $1,050,000 ($550,000 past, $500,000 future).

Here are the injury details:

  • extreme abdominal pain in recovery room following endoscopy and upon discharge to home that day requiring return to hospital emergency room overnight
  • emergency laparotomy performed next day to repair duodenal diverticulum
  • nine day hospitalization following the laparotomy with Foley catheter, and Jackson-Pratt, nasogastric and jejunostomy  tubes and intravenous pain medication
  • one more overnight hospitalization seven days after discharge for vomiting and stitches removal
  • two moths confined to home and six weeks physical therapy to restore stomach muscles strength
  • permanent seven and a half inch abdominal surgical scar
  • risk of future bowel obstruction due to surgical adhesions

The defendant argued that Ms. Garzon (46 years old at the time of the endoscopy):

  • made a very good recovery from the laparotomy,
  • had no significant complaints of ongoing pain or any disability,
  • does not suffer from the abdominal scar and that it’s barely visible, and
  • had not to date suffered from any of the intestinal problems such as a bowel obstruction that her expert testified might occur in the future

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $2,350,000 ($150,000 less than the jury awarded).
  • Defendant argued that the jury verdict was based upon animosity toward him and sympathy for the plaintiff and that the proper award for plaintiff’s injuries is in “the low to mid six figure range.”

On September 13, 2012, just before noon, Elaine Golimowski was walking across the street at an intersection in Cheektowaga when she was struck by a left turning unmarked town police vehicle. Ms. Golimowski, then 69 years old and retired, was propelled onto the car and then to the ground. She sustained several injuries and was transported by ambulance to the local hospital.

In her ensuing lawsuit, the Erie County jury  apportioned liability 75% to the police officer and 25% to plaintiff and awarded pain and suffering damages (before apportionment) in the sum of $1,200,000 ($600,000 past – six years, $600,000 future – 10 years) and. Both the liability and damages determinations have been affirmed on appeal in Golimowski v. Town of Cheektowaga (4th Dept. 2020).

Here are the injury details:

  • compressed tibial plateau and fibular head fractures requiring emergent open reduction internal fixation surgery with the insertion of a plate and screws

  • torn meniscus (repaired during the open reduction surgery)
  • T-8 end-plate and T-12 compression fractures
  • six fractured ribs
  • sternum fracture
  • small subarachnoid hemorrhage
  • 11 day hospitalization followed by inpatient rehabilitation for two months
  • continuing pain and restricted range of motion in leg leaving plaintiff unable to perform activities of daily living (such as laundry), making it difficult to sleep and climb stairs and requiring the use of a walker to ambulate much of the time

The defendants argued that the awards were excessive noting that:

  • plaintiff made a good recovery from her leg injuries (no post-traumatic arthritis and no treatment after three years),
  • plaintiff had back surgery in 1984, required no new surgery and any significant pain or treatment (several steroid injections) was related to pre-existing conditions, and
  • plaintiff’s ribs, sternum and brain bleed all healed without surgery or any significant treatment

Inside Information:

  • In his closing argument, plaintiff’s counsel asked the jury to award a total of $1,200,000 for plaintiff’s pain and suffering – the exact number they awarded, stating: “It’s a big number. More than most of us will ever see in a lifetime, but it’s the right number.”
  • Plaintiff stated at the scene of the accident that she’d been drinking vodka the night before and admitted she’s been at a bar from 8:30 p.m. until 3 a.m. The trial judge ordered that the defense could not introduce any evidence of plaintiff’s alcohol use before the accident (or her 10 year old conviction for driving while intoxicated).
  • Plaintiff had a stroke in 2018, unrelated to the accident, that defendants argued was the reason she used a walker at the time of trial.

 

On November 12, 2012, Florence Nemeth, then 67 years old, was diagnosed with peritoneal mesothelioma, a tumor of mesothelia cells in the abdomen. She died from the disease on March 5, 2016, before a lawsuit was brought on her behalf against several firms involved in the manufacture and distribution of a talc based product she had regularly utilized, Desert Flower Dusting Powder.

After a six week trial in Manhattan Supreme Court, the jury returned a verdict finding that defendant Whittaker Clark Daniels, Inc. (“WCD”) was negligent when it  provided the talc contaminated with asbestos without an adequate warning and that its negligence was a substantial factor in causing injury to Ms. Nemeth (who died shortly before the trial began). Liability was apportioned 50% to WCD and 50% to two other defendants who had settled with plaintiff before trial.

The jury then returned a verdict awarding damages for (a) pre-death pain and suffering in the sum of $15,000,000 (40 months) and (b) loss of consortium in the sum of $1,500,000 (40 months). The trial judge reduced the damages to $6,000,000 for pain and suffering and $600,000 for loss of consortium,

In Nemeth v. Brenntag North America (1st Dept. 2020), the appellate court affirmed the trial judge’s reduction of damages and addressed issues concerning causation and liability apportionment.

Here are the injury details:

  • chemotherapy over three year period that left decedent feeling terrible for several days after each session and which caused her hair to fall out and her teeth to break
  • three surgeries to debulk the tumors to attempt to remove the cancer, involving drainage of as much as 20 pounds of fluid that had accumulated in the abdomen (the first one of which involved cutting open the decedent from her chest to her pelvis and the first two of which involved five day hospital admissions)
  • depression
  • pain, difficulty breathing and walking (due to fluid accumulation); breakthrough pain (severe pain that erupts while a patient is already medicated with a long-acting painkiller) during the decedent’s final three days

The defense argued that the pain and suffering award should be substantially reduced because Ms. Nemeth’s pain and suffering was not severe during much of the time from her diagnosis to her death. The 40 month period was substantially longer longer than other reported cases dealing with mesothelioma because victims of peritoneal mesothelioma tend to live longer than victims of pleural mesothelioma (which affects the lungs). The trial judge stated, “the pain and suffering [in pleural mesothelioma cases] is usually much more pronounced and expressed very early on in the outset of the disease.”

Inside Information:

  • Ms. Nemeth testified in a preserved videotaped deposition that over an 11-year period, from 1960-1971, she powdered her body with Desert Flower Dusting Powder every day after showering, using a powder puff for two minutes to apply it all over her body.
  • Post-trial, the defense suggested a maximum pain and suffering award of $4,500,000 whereas the plaintiff suggested $10,000,000.
  • Defendants Shulton, Inc. and Proctor & Gamble Co., Inc., its corporate parent, who manufactured the talc, are the defendants who settled the claims against them before trial (for $732,500) and against whom 50% of the liability was assigned. Accordingly, the judgment against WCD was reduced by one-half.
  • Brenntag North America is WCD’s corporate parent.

 

 

On November 3, 2014, Anna Brennan slipped and fell at a private home in Greenwood Lake. Ms. Brennan, a 66 year old part-time caretaker for the mother of one of the homeowners, sustained hip and wrist injuries when she finished work that day and began to descend an exterior stairway with leaves that covered the bottom two steps. She thought the leaves were only covering the street and fell when thought she was on the bottom step but was actually on the third step from the bottom.

In Ms. Brennan’s ensuing lawsuit, the Orange County jury determined that the homeowners’ negligence caused her injuries and they then awarded plaintiff pain and suffering damages in the sum of $600,000 ($400,000 past – four  years, $200,000 future – 16 years).

In Brennan v. Gormley, the appellate court has affirmed both the liability and damages verdicts.

Here are the injury details:

  • Hip – displaced femoral neck fracture requiring hemiarthroplasty (partial hip replacement) with ball and socket

  • Wrist – fractures of ulnar styloid process and distal region of radius requiring surgery to insert pins into (non-dominant) wrist (pins were removed one month later)
  • Four day hospitalization, six weeks home health aide and physical therapy, six weeks of limited ambulation with walker
  • Unable to return to work, climb stairs without difficulty, limited ability to do housework and ability to walk for exercise reduced to one-half mile a day (from 1.5 miles a day)

Defendants’ main argument on appeal was that there was no basis for the liability finding against them because the leaves on the stairs were open, obvious and known to plaintiff. They also argued that the damages award was excessive because plaintiff made a good recovery from her injuries, her continuing pain was sporadic and minimal and her limitations were not severe.