On November 19, 2009, Calvin Tarpley was driving his car and was pulled over to the curb by a police officer on 188th Street near Hillside Avenue in Queens. After he was given a traffic ticket, his stationary vehicle was struck at the front driver’s side by a city bus. Mr. Tarpley, a 43 year old security guard, sustained neck and back injuries and sued the city.

After determining that the the bus driver was 100% at fault for the collision, the Queens County jury awarded pain and suffering damages in the sum of $10,000,000 ($3,000,000 past – five and a half years, $7,000,000 future – 28 years).

In Tarpley v. New York City Transit Authority (2d Dept. 2019), the defense successfully argued on appeal that the award was excessive and the court ordered a reduction of the pain and suffering award to $3,000,000 ($1,000,000 past, $2,000,000 future).

Here are the injury details:

  • herniated disc at C5-6 with radiculopathy and myelopathy, requiring anterior cervical discectomy and fusion surgery with the insertion of a titanium plate and four screws
  • failed back syndrome, requiring a laminectomy at T9-10 and the permanent placement of a spinal cord stimulation device

  • approximately 50% permanently restricted range of motion in neck and back
  • daily, constant and permanent neck and back pain which plaintiff’s treating surgeon testified require medications that induce drowsiness and leave plaintiff unable to work
  • bulbous keloid scar at the front of plaintiff’s neck
  • future lumbar fusion surgery likely

Inside Information:

  • There was no expert medical testimony adduced by the defense.
  • Eight years before this accident, Mr. Tarpley had sustained a back injury in a car accident that required a laminectomy at L5-S1. He claimed he’d largely recovered and had minimal if any back pain before this accident.
  • Plaintiff’s pre-trial settlement demand was $2,500,000 against an offer of $250,000.
  • The plaintiff did not seek medical attention at the scene and the defense argued that the crash was relatively minor.

On July 3, 2013, Xiaoen Xie, a welder working at a construction site in Queens, was injured when he fell from the ground floor to the basement 10 feet below.

Mr. Xie, then 47 years old, was rushed to the hospital where he was treated for spinal injuries.

In his ensuing lawsuit against the owner of the site, Mr. Xie was granted summary judgment as to liability on his Labor Law Section 240(1) claim. The matter then proceeded to a trial on damages only.

In the bench trial on damages, the judge awarded pain and suffering damages in the sum of $325,000 ($75,000 past – four years, $250,000 future – 29 years). Plaintiff appealed arguing that the damages award was inadequate.

In Xie v. Park Place Estate, LLC (2d Dept. 2020), the pain and suffering damages award was increased to $650,000 ($400,000 past, $250,000 future).

Here are the injury details:

  • burst fracture at T-10 with instability and compression deformity at T-12
  • thoracic spine interbody fusion surgery with allograft, seven titanium pedicle screws, two 10 cm rods and bone cage

  • one week hospital admission
  • 50% loss of forward flexion
  • pain when sitting or standing for more than 20 minutes, likely permanent
  • intracranial hemorrhage with double vision and headaches that resolved within 18 months post-accident

In addition to pain and suffering damages, plaintiff was awarded $46,000 for past loss of earnings based upon his $1,000 per month income loss to the date of trial. At the trial, plaintiff testified that he had previously intended to work until he was 67 years old and claimed he should be awarded damages for future loss of earnings because his injuries prevent him from working in any field. The judge rejected this claim because his expert orthopedic surgeon testified merely that plaintiff wold be unable to work as a construction worker, not that he could not work in any field. Furthermore, plaintiff did not meet his burden to show that he attempted to mitigate his damages by seeking alternative employment.

 

On November 16, 2015, Roseann Maurer was stopped in her car waiting to tun left into a driveway on Big Tree Road in Wales (about 25 miles southeast of Buffalo) when another car struck hers in the rear end. Ms. Maurer sustained knee, neck and low back injuries.

After summary judgment as to liability was granted in her favor against the other driver, Ms. Maurer’s lawsuit proceeded to a trial on the issue of damages only. The Erie County jury awarded her pain and suffering damages in the sum of $374,000 ($108,000 past – three years, $266,000 future – 20 years).

Plaintiff contended that the pain and suffering awards were inadequate. Both the trial judge and the appellate court agreed (as to the future pain and suffering award) and in Maurer v. Colton (4th Dept. 2020) the total pain and suffering award was increased to $588,000 ($108,000 past, $480,000 future).

Here are the injury details:

  • Right Knee: complex medial meniscus tear and Grade III chondromalacia requiring two arthroscopic meniscectomies and chondroplasties (and knee replacement surgery may be required within 5-10 years)

  • Back: L2 inferior end plate compression fracture and  herniated discs at L1-4 (and at other lumbar levels), with radiating pain and permanent significant losses of range of motion (and a two level discectomy and fusion surgery may be required in the future)
  • Neck: herniated discs at C4-7 (and at other cervical levels), with radiating pain and permanent significant losses of range of motion (and a three level discectomy and fusion surgery may be required in the future)

Inside Information:

  • At the time of the crash, plaintiff was 62 years old and the caretaker of her young grandson.
  • During deliberations, the jury sent out a note asking for the testimony given as to the cost of the future cervical and lumbar surgeries.

On December 21, 2012, Terrence Cullen was driving his car on Wantagh Avenue in Hempstead when another vehicle drove through a stop sign on Sarah Drive and smashed into his car. Mr. Cullen, then 53 years old, sustained hand and knee injuries.

In the ensuing lawsuit, the other driver conceded full liability for the crash and the matter proceeded to a trial on damages only.

The Nassau County jury awarded pain and suffering damages in the sum of $25,000 (all past – five years).

In Cullen v. Thumser (2d Dept. 2019), upon plaintiff’s appeal that the damages award was inadequate, the appellate court ordered an increase in the damages verdict to $150,000 ($100,000 past, $50,000 future – 19 years).

Here are the injury details:

  • right knee – complex tear of the medial meniscus, requiting arthroscopic partial medial meniscectomy with resection of approximately 50% of the meniscus
  • left thumb – ulnar collateral ligament partial tear, resulting in diminished range of motion and strngth

Plaintiff claimed at trial that he had swelling in his knee and hand on good days and when worse, he would take Tylenol and Motrin for pain. He also said he had difficulty gripping things, getting dressed, using tools, exercising and playing softball with his daughter.

Plaintiff’s expert orthopedic surgeon testified that (a) plaintiff had decreased range of motion in his knee (about 10 degrees) and recurring pain that is permanent and (b) his thumb remained incompetent and needs to be surgically sewn up (but would still not be 100%).

Defendant’s expert orthopedic surgeon testified that (a) plaintiff had pre-existing degeneration in his knee (plaintiff conceded he had some pre-existing calcification but noted he was asymptomatic and never treated) and (b) it was unlikely that the car accident caused his knee injury. The defense expert conceded that plaintiff had an unstable thumb that could become chronic without surgery but was unable to opine whether the accident caused plaintiff’s thumb injury.

Inside Information:

  • In return for defendant’s concession as to liability (and that plaintiff’s injuries satisfied the Insurance Law threshold), plaintiff agreed that he would not seek any award above the defendant’s $300,000 liability insurance policy limits.
  • Plaintiff is six feet seven inches tall and played basketball throughout high school and college and thereafter. The defense argued that his knee injury could have occurred while he was playing basketball.
  • In closing arguments, plaintiff’s counsel requested a total pain and suffering award of $350,000 ($50,000 for the knee injury plus $300,000 for the hand injury). Defendant’s counsel argued that plaintiff was not at all disabled, had no injury to his knee caused by the car accident and his hand injury warranted only a past pain and suffering award of $25,000 (the exact amount awarded by the jury).

On December 4, 2013, Martin Glynn was riding his bicycle on Batten Road in Croton-on-Hudson. When he entered the intersection to cross Yorktown Road his bicycle collided with the passenger side of a car. As a result, Glynn, then a 68 year old self-employed computer programmer, sustained a significant injury to his dominant hand.

In the ensuing lawsuit, a Westchester County jury determined that the accident was 100% the fault of the vehicle driver. The jury then awarded pain and suffering damages in the sum of $358,000 ($24,000 past – three years, $334,000 future – 11.5 years).

In Glynn v. Altobelli (2d Dept. 2020), the appellate court affirmed the liability finding and ordered that the damages awards should be reduced by $58,000 to a total of $300,000 ($100,000 past, $200,000 future).

Here are the injury details:

  • intraarticular comminuted displaced fracture of the base of the thumb metacarpal  (Bennett fracture)

  • open reduction internal fixation surgery to reduce the fracture with the insertion of three steel percutaneous pins
  • removal of pins one month later
  • cast six weeks, physical therapy four months, cortisone injection
  • post-traumatic arthritis, decreased range of motion and fibrosis

Plaintiff testified at trial that that he still had:

  • stiffness and lack of dexterity in his hand
  • occasional burning pain and constant low level pain
  • limitations as to his lifelong banjo playing as well as exercising and writing computer code

Plaintiff’s treating surgeon testified that his pain and limitations are permanent, will get worse and it is likely he will require future surgery (a CMC arthroplasty).

Inside Information:

  • The defense did not produce a medical expert.
  • Plaintiff’s pre-trial settlement demand was $325,000; defendant’s offer was $200,000.

On November 23, 2011, Margarita Martinez was pushing her shopping cart in a crosswalk when she was struck by a cargo van on Cypress Avenue at East 138th Street in the Bronx. The van was driven by Robert Lane in the course of his employment as a delivery driver for Premium Laundry.

Ms. Martinez, 79 years old, was run over, dragged a few car lengths and ended up trapped under the vehicle. An ambulance transported her to a nearby hospital but after 25 minutes there she was pronounced dead.

In the ensuing litigation against the driver, his employer and the vehicle owner, the Bronx jury awarded pre-death pain and suffering damages in the sum of $10,500,000.

In Martinez v. Premium Laundry Corp. (1st Dept. 2020), the appellate court ruled that the award was excessive and ordered a reduction to $3,000,000.

Here are the injury details:

  • blunt impact injury to head (with laceration exposing skull) and neck
  • multiple spinal fractures and crush injuries of chest and pelvis
  • fractures of tibia and fibula

The parties disagreed as to the amount of time Ms. Martinez experienced conscious pain and suffering from the moment of impact until she was pronounced dead. Both parties relied upon testimony from (a) the driver who said he heard Ms. Martinez moaning for a few seconds before she was extracted from under his vehicle and (b) expert neurologists who relied upon the EMS and hospital records.

Plaintiff’s expert noted that while in the ambulance Ms. Martinez was moving her arms and legs and her eyes were open. He opined that the decedent was able to experience conscious pain and suffering for 40 minutes (21 minutes from impact until arrival at the hospital and 19 minutes more until she was intubated and lapsed into a coma at the hospital before being pronounced dead seven minutes after lapsing into the coma).

Defendant’s expert conceded that at some early part of the first 20 minutes after impact and before arrival at the hospital, Ms. Martinez was able to perceive some pain. It is pure speculation, though, he opined, to state that the decedent was capable of perceiving pain at any time after she arrived at the hospital.

 

On August 15, 2011, Calvin Thomas slipped and fell on the second floor landing of an interior staircase in an apartment building at 383 East 143rd Street in the Bronx. As a result, he sustained a major ankle injury.

383 East 143rd Street

Mr. Thomas, then 51 years old, sued the building owner claiming that his foot slipped on urine and feces and that the owner was liable for his injuries because it failed to maintain a safe premises. The jury agreed to the extent that it found the defendant 67% at fault (while assigning 33% of the fault to plaintiff).

The jury awarded plaintiff pain and suffering damages in the sum of $70,000 (all past – six years). Plaintiff appealed, arguing that the jury’s award was inadequate – both as to  (a) the amount for past pain and suffering and (b) the failure to award anything at all for future pain and suffering.

In Thomas v. New York City Housing Authority (1st Dept. 2020), the appellate court increased the award to $375,000 ($275,000 past, $100,000 future).

Here are the injury details:

  • bimalleolar left ankle fracture with deltoid ligament rupture and a displaced oblique fibula fracture
  • surgery #1 (on 10/12/11): open reduction internal fixation with removal of scar tissue, ligament repair and placement of a six hole metal plate and five screws
  • surgery #2 (on 5/26/14): arthroscopic removal of hardware and scar tissue
  • post-traumatic arthritis
  • occasional use of cane
  • cannot walk long distances or engage in sports

Inside Information:

  • Plaintiff had been visiting his mother at the time of the incident and was walking down the staircase from her apartment on the 10th floor. After he fell, plaintiff hobbled back to her apartment on his right foot. He did not seek medical treatment until three days later when he went to the local emergency room.

On, January 21, 2008, William Tate-Mitros, stepped out of a city bus onto a sidewalk in Manhattan when another city bus mounted the sidewalk and its tire ran over his foot.

After his lawsuit against the transit authority resulted in a defense verdict, Tate-Mitros appealed and the First Department reversed because of a preclusion order error. On retrial, a new jury found for plaintiff and awarded him pain and suffering damages in the sum of $14,000,000 ($7,000,000 past – 10 years, $7,000,000 future – 10 years). The trial judge reduced the verdict to $4,500,000 ($2,500,000 past, $2,000,000 future).

On appeal in Dees v. MTA New York City Transit (1st Dept. 2019), the court agreed with the defendants that the award remained excessive and it ordered a further reduction to $3,500,000 ($2,500,000 past, $1,000,000 future).

The appellate court decision did not mention the injuries sustained by Mr. Tate-Mitros (who died during the pendency of the appeal). He sustained massive right foot crush injuries:

  • nine fractures involving toes and metatarsals
  • extensive tissue and muscle damage
  • ruptured dorsalis pedis artery
  • three surgeries involving the reconstruction of his artery and tissue, application of a skin graft harvested from his thigh and debridement of damaged tissue
  • admission to a hospital for 43 days and to a rehabilitation facility for 10 more days
  • constant and permanent pain, loss of strength, balance and range of motion
  • deformed, clawed foot
  • unable to ambulate even short distances without assistance

Plaintiff, 61 years old at the time of his accident, continued working as an interior designer for three years thereafter but was unable to continue due to his injuries (he made no loss of earnings claim). Then, he suffered an unrelated stroke four years after the accident that exacerbated his foot weakness and required him to use a walker instead of the cane he’d used up to that point. He was then unable to live on his own and ended up in a nursing home (his treating doctors testified that the stroke was neither massive nor disabling but that it aggravated or worsened the consequences of his foot disability making him more dependent on a walker as opposed to a cane and he would not have needed to be in a nursing home on the basis of the stroke alone).

The defense, while declining to proffer any medical expert testimony, argued that:

  • the surgical procedures plaintiff underwent were less intrusive than open reduction surgery with hardware implants
  • there was no evidence that plaintiff would require any future surgery, he had no medical treatment or pain medication  for his foot for several years before trial (plaintiff testified that he refrained from narcotic pain medication because he feared becoming addicted)
  • the main factor diminishing plaintiff’s enjoyment of life was his post-accident stroke

 

On February 3, 2010, Emilio Carino was driving his van in the Bronx with two passengers. While stopped at a red light, the van was struck in the rear by another vehicle.

Carino and his passengers sued the other driver who conceded liability. A trial on damages ensued and the Bronx jury awarded pain and suffering damages to the three plaintiffs in the sums of $200,000, $150,000 and $55,000 (all past – six years).

Plaintiffs appealed arguing that the awards were inadequate but the appellate court in Carino v. Friendly Fruit, Inc. (1st Dept. 2019) affirmed the jury’s awards and declined to either increase any of the past pain and suffering awards or award anything at all for future pain and suffering damages.

Here are the injuries claimed:

  1. Emilio Carino (41 years old; awarded $200,000): herniated disc at C5-6 with spinal fusion surgery
  2. Katherine Maldonado (34 years old; $150,000): torn labrum in shoulder with two arthroscopic surgeries, herniated disc in low back with laminectomy
  3. Amarilis Gonzalez (38 years old; $55,000): labral tear in shoulder with arthroscopic surgery, herniated discs at L5-S1 and C6-7 with discectomies

The jury found that plaintiffs each met the significant limitation of a body function or system threshold under Insurance Law Section 5102 but also that none of them sustained a permanent consequential limitation of use of a body organ or member standard under the statute.

Plaintiffs claimed that all of their injures and treatment (including extensive therapy and injections) were related to the accident and that they were left with continuing pain, restricted ranges of motions, disabilities as to activities of daily living and recreation and needing future additional surgeries. The defense, however, harped on the theme that the impact was low speed and minor (the property damage bill for plaintiff’s vehicle was $550), no one complained of any pain at all at the scene or sought any medical treatment until two days later when they went to a clinic, none had a claim for lost earnings (each having returned to work quickly) and that each plaintiff had pre-existing degenerative conditions and there were no traumatically induced injuries.

 

 

 

 

On   September 6, 2006, Pauline Barrett was attempting to exit the city bus she’d been on  when her right heel got caught in a hole in the rear stairwell of the bus.

Barrett sued the transit authority claiming that she sustained serious injuries as a result of a dangerous stairwell defect that the defendant should have known about and remedied before her accident. The Kings County jury agreed but found plaintiff bore some responsibility too and it apportioned fault 75% to the defendant and 25% to the plaintiff.

In a separate damages trial, the jury awarded plaintiff $2,000,000 (all past – nine years) for her pain and suffering plus $971,000 for past and future lost earnings. Both awards were affirmed on appeal in Barrett v. New York City Transit Authority (2d Dept. 2019).

The appellate court decision did not at all mention the injuries sustained by the then 37 year old Ms. Barrett. Here are the injury details:

  • ankle sprain
  • right shoulder rotator cuff tear and impingement, requiring arthroscopic surgery to repair
  • left shoulder impingement, requiring arthroscopic surgery
  • right wrist triangular fibrocartilage complex tear, requiring open surgery to repair with anchors
  • lumbar radiculopathy and chronic neck pain, requiring epidural injections
  • depression and anxiety

Plaintiff’s damages case was bolstered by medical experts including her orthopedic surgeon, pain management doctor and psychologist who testified that (a) all of her injuries were caused by the accident, (b) plaintiff’s mobility loss in her shoulders and wrist are permanent and therefore it’s unlikely she could ever return to full time work (she’d been a financial analyst), (c) plaintiff continues to suffer from pain in her neck, back, shoulders and foot requiring ongoing medication and physical therapy and (d) objective tests demonstrated plaintiff’s significant depressive and anxiety disorders (her psychologist stated that her inability to return to work “was one of the great stressors in her life”).

The defendant argued that plaintiff’s many injuries were not caused by the accident, noting that at the scene, in the ambulance and at the hospital emergency room, she only complained about right ankle pain and swelling and that it wasn’t until she saw a doctor at a “therapy place” five days later that she  complained about her shoulders, wrist and spine. The defense contended that the case was about “a simple stumble and sprained ankle.”

Three months before the accident, Ms. Barrett had been hired by JP Morgan Chase as a financial associate/officer. Her salary was $55,000 with full benefits and eligibility for a bonus. She never returned to work. She did, though, start graduate classes in September of 2009 for two semesters and applied, unsuccessfully, to return to her prior job.

Inside Information:

  • The only doctor who testified for the defense was a neurologist who had conducted a no-fault examination in July 2007. He made it clear that he examined plaintiff only “interested in neurologic issues”, not her multiple orthopedic injuries. The defense had plaintiff examined by an orthopedist but did not call him to testify at trial.
  • Plaintiff’s orthopedic surgeon testified that even though she never fell to the ground, she tore her rotator cuffs when she fell forward while holding the door rail: “[t]he power or the weight and the momentum behind her of moving forward is being restrained by her hands behind her and that puts a lot of stress in the front of your shoulders.”