On March 2, 2005, Jeremy Killenberger was a rear seat passenger in a car being driven by Kevin Miller on State Route 7 in Princetown, Schenectady County. Mr. Miller lost control of his vehicle as a result of snow and ice conditions, causing it to cross over the center lane and crash into the path of a snowplow.

Mr. Killenberger, then 25 years old, sustained massive orthopedic  injuries. Another passenger, James Croote, also 25 years old, was killed as a result of the crash.

Mr. Killenberger (and Mr. Croote’s estate) sued both Mr. Miller as well as the State of New York (claiming that windblown snow on the highway was a recurrent dangerous condition the state should have remedied).  After a nonjury trial, the Court of Claims judge ruled that the state was 75% liable and the driver 25% liable.

Two years after the liability decision, the same judge held a damages trial following which he determined that reasonable compensation for claimant’s pain and suffering is $2,750,000 ($1,250,000 past – 12.5 years, $1,500,000 future – 38 years). He also awarded past medical expenses in the sum of  $31,374. Mr. Croote’s estate was awarded $200,000.

The state appealed but in Killenberger v. State of New York (3d Dept. 2021), the judgments have been affirmed.

Here are the injury details as to Mr. Killenberger:

  • pelvis fracture with pubic symphysis opened at least 10 centimeters and shattered wing requiring open reduction internal fixation (“ORIF”) surgery

  • comminuted (four pieces) acetabular fracture requiring ORIF  and need for future total hip replacement
  • bilateral tibia/fibula and ankle joint fractures requiring ORIF
  • one month in hospital then several months bedridden, unable to walk unassisted for two years
  • numerous scars
  • permanent foot drop
  • nerve damage causing erectile disfunction
  • continuing pain requiring narcotic medications

Inside Information:

  • The initial claim sought only $2,000,000 for damages. Following motion practice, the judge allowed claimant the full damages he assessed.
  • Defendant proffered no witnesses or testimony disputing claimant’s medical proof.
  • This case was hard and successfully prosecuted over many years by Schenectady attorney John R. Seebold

On February 12, 2011, Ramon Hernandez, 66 years old, was injured when his right hand was crushed between two steel rollers of a dough flattening machine he operated while employed as a baker at a bakery in upper Manhattan.

The Site of Plaintiff’s Accident

Prior to the accident, there was a partial power outage in the area and a Manhattan jury determined that Consolidated Edison Co. of New York, Inc., who responded to the outage, was negligent in rewiring underground electric cables which caused nearby machines to operate in reverse.

The jury awarded plaintiff pain and suffering damages in the sum of $163,750 ($70,000 past – 6.5 years, $93,750 future – 12.5 years) plus lost earnings damages in the sum of $383,482 ($176,175 past, $207,307 future – 4.8 years). They declined to make any award at all for future medical expenses.

Defendant appealed challenging the liability verdict and arguing that the pain and suffering awards are excessive.

In Hernandez v. Consolidated Edison Company of New York, Inc. (1st Dept. 2021), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • crush injury to right (dominant) hand with nerve damage and lacerations requiring stitches
  • infection requiring overnight stay at hospital a week later when there for removal of 21 stitches
  • required sling for eight months and physical therapy for 18 months
  • continuing pain, cramping and numbness leaving plaintiff unable to return to work, make a fist or use his right hand for any activities of daily living

Plaintiff’s expert in hand and plastic surgery testified that in addition to the injuries above, plaintiff also sustained carpal tunnel syndrome in his right hand. Defendant’s orthopedic hand surgeon testified that plaintiff had only superficial lacerations, no crush injury and was exaggerating his symptoms. Furthermore, the defense argued that plaintiff had pre-existing carpal tunnel syndrome in both hands.

Inside Information:

  • In summations, plaintiff’s attorney requested the jury to award $1,100,000 for pain and suffering damages. Defense counsel contended that this case was merely about cut fingers and some physical therapy and asked the jury to “send [plaintiff] home with nothing.”

On August 26, 2016, Vincent Madia was injured in a collision between his motorcycle and a taxi at the intersection of Fish and Waring Avenues in the Bronx.

In the ensuing trial, the jury awarded pain and suffering damages in the sum of $5,000 (past only – three years). In her post-trial decision on plaintiff’s motion to increase the award, the trial judge determined that $250,000 for past pain and suffering is reasonable. The judge did not disturb the jury’s zero award for future pan and suffering.

In Madia v. Garcia (1st Dept. 2021), the trial judge’s order has been affirmed.

Here are the injury details:

  • herniated disc at C5-6 and bulges at C3-4 and C4-5
  • ankle fracture (distal tibia)
Anatomy of the Tibia and Fibula

Plaintiff, then 24 years old, was taken from the scene by ambulance to the local hospital where he complained of leg and neck pain. X-rays appeared to show an ankle fracture for which he was casted for seven weeks and then required a walking boot for another four weeks. Later MRI studies showed the herniated disc in his neck for which he underwent physical therapy and took narcotic pain medication. Plaintiff testified he had lingering issues in his leg (e.g., a pinching sensation), his neck injury causes daily discomfort and he could no longer go to the gym or play sports. His treating physiatrist testified that plaintiff has a permanent neck injury with range of motion deficits.

The defense neurologist opined that plaintiff had no neurological problems as a result of the accident, his physical therapy lasted only a few months, the ankle x-rays showed merely a suspicion of a nondisplaced distal tibia fracture and that plaintiff’s prognosis was “good.” The defense argued that plaintiff  sustained a mere sprain of his ankle in this case, not a fracture.

Inside Information:

  • The jury ruled that each driver was equally at fault for the crash (exactly the split that defense counsel suggested in his closing argument).
  • In his closing argument, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $400,000 ($250,000 past, $150,000 future); defense counsel suggested $10,000.
  • Plaintiff was arrested in the hospital upon defendant’s complaint that he angrily punched the hood of his car causing a dent. Plaintiff denied doing so and the charges were later dropped.

On March 4, 2013, Jose Flores was riding his bicycle down Second Avenue just south of 76th Street in Manhattan when he was struck by a large city bus.

The type of bus that struck Mr. Flores

Mr. Flores, then 37 years old, fell to the ground and could not get up. He was transported by ambulance to the hospital with several injuries, the worst to his lower right leg.

The jury found that the bus driver was fully at fault for the accident and they awarded pain and suffering damages in the sum of $2,224,000 ($783,000 past – six years, $1,441,000 future – 37 years).

In Flores v. New York City Transit Authority (1st Dept. 2021) both the liability and damages verdicts (including $1,332,000 for future medical expenses) have been affirmed.

Here are the injury details:

  • 12 days in hospital
  • Ankle – comminuted intra-articular open medial malleolus fracture that required multiple irrigation and debridement, external fixation, open reduction internal fixation,  and skin grafting
  • Toes – painful fracture of great toe requiring surgery, fracture of 2d metatarsal
  • Shoulder – SLAP/labrum and bilateral rotator cuff tears that required arthroscopic surgery three years later
  • Hip – tears in labrum and muscle
  • Knee – torn anterior cruciate ligament
  • Back – two herniated lumbar discs

Plaintiff claimed he can no longer play with his children, requires a cane to walk, has chronic pain all over and is depressed and anxious.

The defense conceded that plaintiff’s ankle injury was casually connected to the crash and there is permanence; however, based upon their testifying medical experts (and in particular MRI studies), they argued that none of the other claimed injuries was caused by the accident.

Inside Information:

  • In his summation, plaintiff’s counsel asked the jury to award $3,500,000 for pain and suffering damages; defense counsel focused on liability and did not suggest an amount

On March 12, 2013, Richard Gontarek tripped and fell between flights of the steps of the staircase at the 59th Street and Lexington Avenue subway station in Manhattan.

Mr. Gontarek, then 47 years old, sued the transit authority claiming he fell and sustained injuries because of cracked tiles on the staircase platform. A Manhattan jury found that the transit authority was fully at fault and then they awarded plaintiff pain and suffering damages in the sum of $600,000 ($300,000 past – six and a half years, $300,000 future – 25 years).

The defendant appealed arguing that the award was excessive. In Gontarek v. New York City Transit Authority (1st Dept. 2021), the appellate court affirmed the jury’s award.

Here are the injury details:

  • right shoulder rotator cuff and labral tears with impingement
  • arthroscopic surgery to repair rotator cuff and labral tears with anchor insertion
  • continuing pain, diminished strength, limited range of motion and need for future surgery

The defense noted that plaintiff did not seek any medical attention until six weeks after the accident (which plaintiff claimed was because he could not get an appointment to see an orthopedic surgeon until then) and argued that he recovered well within months of his surgery, has no permanent disability and is able to perform activities of daily living without limitations.

Plaintiff, a Marine Corps veteran, claimed he is significantly limited in recreational and hobby activities that were an important part of his life including Ironman training, scuba diving and bone carving.

Expert orthopedic surgeons testified for both sides. Plaintiff’s expert testified that he will develop arthritis in his shoulder and need to have it replaced (arthroplasty) within 10 years. Defendant’s expert opined that plaintiff will not need any future orthopedic treatment and certainly not any surgery.

Inside Information:

  • In his summation, plaintiff’s attorney requested that the jury award $700,000 for pain and suffering damages; defense counsel told the jury “… damages are irrelevant in this case because I don’t think you’re going to find liability.”
  • In orally denying defendant’s post-trial motion just after the verdict was read, the judge stated that if this were a bench trial she might have awarded “a little bit less than the jury did” but the damages award was reasonable especially in view of the fact that plaintiff’s athletic pursuits were a “major part” of his life.
  • Defendant did not appeal the finding of  liability.

 

On June 14, 2013, Albert Masmalaj was employed as a carpenter at a a recycling plant construction site in Brooklyn when he fell from a scaffold six feet to the cement floor below.

The Accident Site – SIMS Municipal Recycling

In his ensuing Kings County lawsuit against the premises owner and general contractor, Mr. Masmalaj, then 34 years old, was granted summary judgment as to liability under Labor Law Sections 240(1) and 241(6) and the case then proceeded to a trial on damages only.

The jury awarded plaintiff pain and suffering damages in the sum of $4,343,108 ($2,000,00 past – six years, $2,343,108 future – 37 years).

In Masmalaj v. New York City Economic Development Corp. (2d Dept. 2021), the appellate court agreed with the defense that the award was excessive and ordered a reduction of the pain and suffering award to $3,343,108 ($1,000,000 past, $2,343,108 future).

Here are the injury details:

  • Left Shoulder – Hill Sachs fracture requiring surgery to repair labrum and remove scar tissue and leaving plaintiff with permanent instability and very limited use of left arm, unable to perform construction work

  • Cervical Spine – herniated disc at C4-5 requiring epidural injections and spinal fusion surgery resulting in non-union with adjacent segment syndrome, continuing pain and limited range of motion and need for additional surgery to solidify the existing hardware
  • Lumbar Spine – shallow herniation at L4-5
  • Psychological – depression with anxiety and agitation (supported by uncontroverted testimony from treating psychiatrist)

Defendants argued that the pain and suffering award was excessive noting that plaintiff traveled to Italy where he was married 13 months after the incident, he is now able to drive, run chores and perform substantially all activities of daily living.

There was extensive medical testimony both from plaintiff’s treating physicians and defendants’ experts.

The jury also awarded plaintiff substantial economic damages including past and future loss of earnings (reduced on appeal to $418,000 from $892,000), future Social Security benefits (reduced on appeal to $40,000 from $298,000) and future medical treatment and medications in the sum of $1,153,000 (all either affirmed on appeal or not challenged, except for pain management expenses which were reduced to $55,000 from $350,000).

Inside Information:

  • The defendants requested that the past pain and suffering award be reduced to $1,000,000; they did not challenge the future pain and suffering award.

On April 18, 2016, Kathleen Wilt was bitten on the upper thigh by a large Rhodesian Ridgeback dog as she was jogging on Maple Street near Prospect Park in Brooklyn.

Ms. Wilt, then 35  years old, sued the dog’s owners who conceded liability before trial and the case went to trial on the issue of damages only. The Brooklyn jury awarded pain and suffering damages in the sum of$600,000 ($400,000 past – three years, $200,000 future).

In Wilt v. Montvel-Cohen (2d Dept. 2021), the appellate court ordered a reduction of the pain and suffering award to $250,000 ($150,000 past, $100,000 future).

Here are the injury details:

  • Physical – multiple puncture wounds with displaced fat and flesh requiring ambulance transport to emergency room treatment where tetanus shot and antibiotics were given, bandaging for a month and a scar
  • Psychological – exacerbated anxiety and trust issues (there was some evidence that six weeks before this incident plaintiff was diagnosed with anxiety but never prescribed medication for it)

Plaintiff treated with a psychologist four times after the incident. The psychologist testified at trial and opined that plaintiff experienced “pretty significant post-trauma symptoms” due to the attack and was left with “chronic anxiety and fear.” Plaintiff had no other testing or treatment with any mental health providers.

Defense counsel argued that the physical injury was relatively minor with no continuing pain, only a small, faded scar and no significant treatment after the emergency room visit. The defense also contended that plaintiff’s anxiety is a pre-existing condition.

 

On January 21, 2012, Matthew Meyers was unloading items from the trunk of a livery vehicle double parked along the curb on 11th Avenue between 27th and 28th Streets in Manhattan when the driver of another vehicle drove her car into him, pinning him between the two cars. Mr. Meyers, then a 36 year old salesman for an apparel company, had been planning on attending a trade show at the “Tunnel Building.”

The “Tunnel Building”

At the close of evidence in the ensuing lawsuit, the trial judge granted plaintiff’s motion for judgment as a matter of law against the other driver and owner on the issue of liability. Thereafter, the Kings County jury awarded plaintiff pain and suffering damages in the sum of $6,500,000 ($2,000,000 past – six years, $4,600,000 future – 40 years).

In Meyers v. Delancey Car Service, Inc. (2d Dept. 2021), the award has been affirmed.

Here are the injury details:

  • bilateral crush injuries to lower extremities with bilateral tibial plateau and tibial spine avulsion fractures

  • comminuted  fractures of left distal femur with thigh degloving and right fibular head
  • resultant insensate right leg caused by complete occlusion of the right popliteal artery
  • total nine surgeries including open reduction internal fixation to left distal femur and left tibial plateau, external fixator and arthroscopic surgery to left knee, vein graft, fasciotomies, and  several debridements
  • one month in hospital plus three more months in rehabilitation facility
  • extensive scarring throughout both legs limiting ability to function in all walks of life
  • continuing pain, significant limp and need for numerous future surgeries including left total knee replacement and right ligament repair

Plaintiff’s wife was awarded (and the appellate court affirmed) loss of services damages in the sum of $700,000 ($300,000 past, $400,000 future) based upon testimony that she now has to care for their three young children, including one with special needs, clean the house and lift things.

Inside Information:

  • Plaintiff sued both drivers and owners. The other driver did not appear at trial but her counsel argued that the driver of the livery vehicle should be held fully liable because plaintiff should have been discharged along a curb and the other driver should not have double parked.
  • Plaintiff returned to work seven months after the accident.

 

On August 11, 2014, Mirson Pimenta, then a 42 year old construction worker, was injured on the job creating a foundation for a new building at 1504 Coney Island Avenue in Brooklyn. He was bending over to pick up some materials from the floor when a 15 foot aluminum ladder fell over and hit him in the back.

Mr. Pimenta claimed he sustained injuries to his back, neck and knee and he was granted summary judgment as to liability under Labor Law Section 240(1). In the ensuing trial on damages only, the Kings County jury awarded plaintiff pain and suffering damages in the sum of $17,000,000 ($2,000,000 past – four years, $15,000,000 future – 33 years).

The trial judge agreed with he defendants that the awards were excessive and she reduced the pain and suffering damages to $3,250,000 ($1,000,000 past, $2,250,000 future). In Pimenta v. 1504 Cia, LLC (2d Dept. 2021), the appellate court affirmed the trial judge’s reduction.

Here are the injury details:

  • Back – decompressive laminectomy and partial discectomy at L5-S1 herniated disc; implantation of spinal cord stimulator
  • Neck – fusion surgery at C5-6 herniated disc with placement of biomechanical device, bone grafting, plate and screws
  • Knee –  partial anterior cruciate ligament tear, meniscal tears; arthroscopic surgery

Plaintiff claimed continuing pain, restricted ranges of motion and extremely limited activities in all of his injured areas. His treating surgeons testified that the accident caused the injuries, they are permanent and plaintiff will in the future need revision spinal surgeries, replacement of the stimulator’s battery and pain medications and physical therapy for the rest of his life.

The defendants argued that plaintiff’s injuries (other than a mere back sprain) were not caused by the accident with the ladder; they noted that plaintiff did not complain about his neck or knee for several months after the accident and they suggested his neck injury was the result of a fistfight plaintiff was involved in three months after the ladder incident.

A week after his accident, plaintiff returned to light duty for two months after which he worked intermittently until May of 2015. He was unable to work thereafter and the jury awarded him damages for lost earnings in the sum of $2,026,741 ($222,206 past, $1,804,535 future – 21 years). These awards were not disturbed by the trial judge and were affirmed on appeal.

Inside Information:

  • Plaintiff testified through a Portuguese interpreter.
  • In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $15,000,000 ($2,000,000 less than the jury awarded).
  • Plaintiff was also awarded future medical, hospital and physical therapy expenses in the sum of $930,516. Defendants did not challenge these awards.

 

On November 11, 2011, Davon Olive, then 12 years old, slipped and fell on a puddle of water on the platform of the Grand Army Plaza subway station in Brooklyn.

In the ensuing lawsuit, a Brooklyn jury determined that the defendant transit authority was at fault because it knew or should have known there was water on the floor that made the platform area unsafe. The jury then awarded pain and suffering damages in the sum of $600,000 ($200,000 past – six years, $400,000 future – 56 years).

In Olive v. New York City Transit Authority (2d Dept. 2021) both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • right hip bone bruise – treated conservatively with hospital, clinic and doctor visits, physical therapy and over the counter medication
  • partial tear of anterior labrum in hip and iliotibial band (“IT”) syndrome

  • diagnosed five years later with trochanteric bursitis followed by steroid injections and more physical therapy
  • arthroscopic surgery on April 6, 2017 – an endoscopic bursectomy to loosen the IT band and extract inflammatory material from the bursa
  • continuing and permanent pain with antalgic gait limiting walking and other activities

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award $2,100,000.
  • The jury found that plaintiff had been negligent, presumably for fooling around with a fellow student on the platform, but that his negligence was not a substantial factor in causing his accident.