On June 25, 2013, Jeffrey Scott was riding his motorized bicycle in the bike lane on Walton Avenue in the Bronx when he collided with a right turning school bus.

Mr. Scott, then a 42 year old private equity manager, sued the bus driver and owner claiming the driver was fully at fault and that he sustained substantial injuries and economic damages.

The jury determined that the parties were equally at fault for the accident and that plaintiff met the so-called threshold under CPLR 5102 having sustained a significant limitation of use of a body function or system (but not a permanent consequential limitation).

The jury awarded damages as follows:

  1. pain and suffering damages in the sum of $750,000 (all past – 4.5 years),
  2. future medical expenses in the sum of $250,000 (25 years) and
  3. nothing for loss of earnings

Both parties appealed. Plaintiff argued that there was no basis to apportion 50% of the fault to him and that the damages awards were inadequate, especially the failure to award anything for either future pain and suffering or loss of earnings. The defendants argued that the fault apportionment was fair, plaintiff’s injuries did not meet the threshold, the past pain and suffering award was excessive and the jury’s other damages awards should not be disturbed.

In Scott v. Posas (1st Dept. 2021), the appellate court affirmed the liability finding and the medical expenses award but vacated the pain and suffering and loss of earnings awards and remanded the case for a new trial on these damages.

The court ruled that $750,000 for past pain and suffering was inadequate and that the failure to award any damages at all for future pain and suffering was inconsistent with the award of significant future medical expenses. The court also ruled that the failure to award any damages at all for loss of earnings was against the weight of the evidence and should be the subject of a new trial on damages as well.

Here are the injury details:

  • Shoulder – retracted full thickness rotator cuff tear requiring arthroscopic surgery; plaintiff was left with permanent significant range of motion losses and is no longer physically active
  • Neck – herniated cervical discs with recommendation for discectomy and fusion surgery at C3-4
  • Brain – post-concussion syndrome leaving plaintiff with memory loss, cognitive deficits, headaches, anxiety and depression

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award $1,800,000 for past pain and suffering plus $18,000,000 for the future (40years). He also asked for $17,500,000 for past and future loss of earnings and $1,000,000 for future medical expenses.
  • Defendants’ medical experts opined that plaintiff had a preexisting shoulder injury and degenerative spine, none of his injuries in this case were permanent or caused any continuing pain or limitations and he was merely exaggerating nonexistent symptoms of a brain injury.
  • Plaintiff earned about $250,000 a year before the accident but claimed thereafter he could earn nothing at all due to his cognitive deficiencies.

Hamidan Mahamad died from ovarian cancer on July 28, 2015. Thereafter, her gynecologist and his practice were sued by her executrix who claimed that the doctor diminished Ms. Mahamad’s chance for a better outcome by failing, following an annual physical and ultrasound in April 2010, to order a certain blood test and refer her to a gynecologic oncologist.

A Queens County jury found for the plaintiff and awarded pre-death pain and suffering damages in the sum of $2,000,000 (four and a half years). Defendants argued that there was no malpractice and, alternatively, that the amount awarded was excessive but in Bacchus-Sirju v. Hollis Women’s Center (2d Dept. 2021), both the liability and pain and suffering damages awards were affirmed.

Here are the injury details:

  • severe abdominal pain, dehydration, malnourishment and septicemia
  • infection with methicillin-resistant staff aureus (“MRSA”)
  • colitis and cell C. difficile; incontinent
  • extensive debulking surgery and chemotherapy
  • depression
  • pulmonary edema
  • hypoglycemic brain injury and seizures
  • extreme weakness and pain leading to inability to walk and need for full-time home health aides before admission to nursing home
  • required feeding tube

The jury also awarded $525,000 in pecuniary damages ($500,000 past, $25,000 future – five years) to each of Ms. Mahamad’s two adult children (Natasha, 39 years old and Sheik, 38 years old). Defendants argued that the testimony to support these awards showed only an emotional loss which is not compensable under the law, not a pecuniary loss; however, the decedent’s daughter testified at length  about the support and guidance her mother provided to both her and her brother. For example, Ms. Mahamad, with whom Natasha was very close, gave her guidance with regard to raising her children (she had five already and was pregnant when her mother died) and was Natasha’s full-time babysitter    The appellate court reduced the pecuniary awards to the  children to $275,000 for Natasha and $125,000 for Sheik.

Inside Information:

  • Ms. Mahamad was born in Guiana, in South America, where she lived until she was 40 years old and left her abusive husband to come to the United States.
  • Plaintiff maintained that Ms. Mahamad, who was 69 years old when she died, had an 80% chance of being cured had her cancer diagnosis not been delayed.
  • In their summations, the defendants’ attorney steadfastly maintained there was no malpractice and he did not discuss the issue of damages; plaintiff’s attorney asked the jury to award $7,000,000 for pain and suffering including physical pain, emotional distress and loss of enjoyment of life. He also asked for pecuniary damages in the sum of $2,500,000 for each of the two children.

On July 29, 2011, Janet Kopolovitch was helping her son move out of his apartment when she slipped and fell on a wet cement floor of the loading dock at 200 Water Street in Manhattan.

In her ensuing lawsuit against the owner and managing agent of the building, Ms. Kopolovitch, then 53 years old, claimed that defendants were negligent because an employee had minutes before the accident mopped the floor and left it dangerously wet without any warning signs. Defendants argued that plaintiff fell because she was not looking down at the floor and, furthermore, there were warning signs in the area, plaintiff should not have been there as it was an employee-only area and her Croc shoes contributed to her fall.

The jury substantially agreed with the defense and apportioned fault for the accident only 10% to them and 90% to plaintiff. The jury then assessed pain and suffering damages in the sum of $100,000 (all past – seven and a half years).

In Kopolovitch v. 200 Water SPE LLC (1st Dept. 2021), the appellate court affirmed both the liability and damages verdicts.

Here are the injury claims and details:

  • Plaintiff was taken by ambulance to the hospital where she was diagnosed with a ruptured detached hamstring muscle in her right leg, treated with painkillers and released to home
  • Physical therapy for seven months
  • Right knee pain which developed during physical therapy in 2012 leading to diagnosis of torn meniscus, arthroscopic medial menisectomy in 2014 and partial knee replacement surgery in 2015
  • Continuing pain, need for daily anti-inflammatories and knee brace

Plaintiff’s expert orthopedic surgeon testified that while her hamstring ultimately healed, she had scarring and fibrosis which affected her gait causing complications including arthritis in her knee, the need for both of her knee surgeries and the likelihood of a future total knee replacement surgery.

Defendants noted that plaintiff’s hamstring had healed before trial, she had complaints of pain in her right knee as far back as 2002 and she fell in May 2014 when her knee buckled while working as a limousine driver. The defendants’ orthopedic expert testified that plaintiff had preexisting arthritis in her knee and that neither knee surgery was related to her 2011 slip and fall accident. 

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award $890,000 for past pain and suffering damages plus $2,640,000 for the future.
  • Plaintiff took a vacation to Costa Rica and Panama in 2017 and posted on Facebook about “dancing the nights away” and walking 10 miles a day. At trial, she denied walking 10 miles a day.

 

On July 26, 2010, Sophie Kapassakis brought her car to a stop as she approached a traffic light at the intersection of Old Country Road and Levittown Parkway in Hicksville. After a few seconds, her vehicle was struck in the rear by a bus. Ms. Kapassakis, then 42 years old, was granted summary judgment as to liability and the case proceeded to a trial on damages only.

The Nassau County jury determined that plaintiff met the so-called 90/180 day threshold under CPLR 5102(d) (but had not satisfied the significant limitation or permanent consequential limitation categories) and awarded pain and suffering damages in the sum of $75,000 (all past – six years).

Plaintiff appealed arguing that the evidence was clear that (a) she had indeed sustained both a significant limitation and permanent consequential limitation to both her right knee and cervical spine and (b) the damage award was inadequate, especially as to the failure to award anything at all for future pain and suffering.

In Kapassakis v. Metropolitan Transportation Authority (2d Dept. 2021), the appellate court (a) increased the past pain and suffering award to $200,000 and (b) affirmed the verdict of no damages at all for future pain and suffering.

Here are plaintiff’s injury claims:

  • Neck – herniated disc requiring discectomy and fusion at C6-7 followed by a second discectomy and fusion at C5-6; permanent placement of titanium plate and four screws
  • Knee – meniscal tears requiring arthroscopic surgery including debridement and scraping behind the patella; likely needs total knee replacement surgery in future
  • Continuing pain and limitations of range of motion

Ms. Kapassakis, 42  years old on the date of this accident, had a prior motor vehicle accident five years earlier, with respect to which she had complaints of back and neck pain requiring treatment with doctors including an orthopedic surgeon. Lower back surgery was discussed. Instead, she treated conservatively but in a visit one month before the current accident, Ms. Kapassakis was reported to have persistent and widespread neck and back pain. The defendant argued that plaintiff had preexisting underlying degenerative disease in both her cervical spine and knee.

Inside Information:

  • Plaintiff requested that the appellate court increase the past pain and suffering award to $300,000 and the future pain and suffering award to $680,000.
  • Plaintiff’s medical experts at trial included her prior treating orthopedic surgeon as well as the knee and spine surgeons who treated her after the current accident. The defense expert was a radiologist.

On December 10, 2012, Adalberto Santiago was a 31 year old New York City police officer operating his patrol car when he received an emergency dispatch calling for assistance to a fellow officer. Officer Santiago activated his lights and sirens and took off. On his way to his fellow officer in need, Officer Santiago’s car was struck by another vehicle at the intersection of Rockaway Parkway and Avenue N in Brooklyn.

Officer Santiago sued the other driver and a Kings County judge determined that the defendant was fully at fault for the crash.

In the ensuing non-jury trial on the issue of damages, the judge awarded pain and suffering damages in the sum of $1,000,000 ($400,000 past – 4.5 years, $600,000 future – 40 years). He also awarded damages for future loss of earnings and benefits in the sum of $1,500,000 (40 years).

Both sides argued on appeal that the damages awards deviated from what would  be reasonable compensation. Plaintiff claimed that the trial judge erred in determining that plaintiff did not suffer from a traumatic brain injury and that the award for lost earnings was inadequate. The defendant claimed that both the pain and suffering and the lost earnings and benefits awards were excessive.

In Santiago v. Boyer (2d Dept. 2021), the appellate court affirmed the judgment entered upon the trial judge’s damages awards.

Here are the injury details:

  • Right Shoulder – partial rotator cuff and labral tears and biceps tendinopathy requiring arthroscopic surgery on 2/13/13 and leaving plaintiff with a frozen shoulder
  • Right Elbow – ulnar nerve entrapment  requiring open surgery on 11/7/13
  • Right Wrist – carpal tunnel surgery on 4/12/14
  • Constant right (dominant) arm pain and disability, including diminished grip strength, unable to perform many activities of daily living, spasms, difficulty sleeping and increased paresthesia of his right hand

Plaintiff’s treating physicians testified credibly that his orthopedic injuries, deficits and pain are permanent; defendant’s expert opined that plaintiff’s restrictions were degenerative in nature.

Plaintiff’s traumatic brain injury claim was supported by the testimony of a neuropsychologist who concluded that plaintiff suffers from a diffuse axonal injury. Plaintiff claimed he has permanent deficits in executive functioning, significant personality changes, memory and cognitive deficits and other significant brain injuries including headaches and dizziness from the crash. The defendant, though, produced his own neuropsychologist expert who concluded that plaintiff presents with “neurocognitive ability within normal limits.” The trial judge found the defense expert more credible and made no award based on a brain injury.

Inside Information:

  • After the crash, plaintiff was out of work for six months. He returned to work on limited and restricted duty but ultimately – much to his chagrin – the police department stripped him of his guns and forced him to retire claiming that he could no longer perform the duties of a police officer.
  • Defendant was a broker for the defendant’s insurance company.
  • Following the verdict, plaintiff underwent three more surgeries.
  • Plaintiff was very well represented by one of the pillars of the Kings County bar, Helene Blank along with her partner Scott Star.

On September 28, 2013, Elmi Mehmeti was driving his car on the Brooklyn Queens Expressway when it was struck in the rear by another vehicle and forced into the guardrail.

Mr. Mehmeti, then 34 years old, sued the other driver and owner. His motion for summary judgment as to liability was granted and the case then proceeded to a trial on damages only.

After determining that plaintiff has sustained  a permanent consequential limitation of use of a body organ or member (one of the so-called threshold requirements under CPLR 5102 which governs damages in car crash cases), the Richmond County jury awarded pain and suffering damages in the sum of $108,900   ($50,000 past – four years, $58,900 future – 38 years).

The trial judge denied plaintiff’s motion to increase the award and in Mehmeti v. Miller (2d Dept. 2021), the appellate court affirmed the jury’s award.

Plaintiff had sought millions for pain and suffering and other damages based largely upon his claim that the crash caused a traumatic brain injury and post-traumatic stress and concussion syndromes. He also claimed left wrist (and arm and shoulder) injuries – a perforation of the triangular fibrocartilage complex requiring some limited casting and some range of motion losses and continuing pain.

To support his left wrist claim, plaintiff produced the testimony of his treating orthopedic surgeon who opined that plaintiff’s wrist injury is permanent.

To support his brain injury claims, plaintiff introduced the expert testimony of a renowned brain rehabilitation expert and a psychiatrist. They concluded that plaintiff sustained a mild traumatic brain injury with  permanent short term memory impairment, light sensitivity, decreased sleep, anxiety and depression and headaches. They also concluded that plaintiff’s injuries are permanent and he will require extensive future medical treatment.

The defense noted that plaintiff’s complaints at the emergency room appear to have been limited to to his left upper extremity, he was treated and released from the ER on the same day and he did not seek any treatment for head/brain related injuries until a month later. Furthermore, the defense produced the testimony of an expert neurologist who opined that (a) plaintiff’s psychiatric exam was normal and (b) there was no evidence of any brain injury, anxiety, depression or PTSD. He concluded that plaintiff was a malingerer and an exaggerator.

The jury declined to award anything at all for plaintiff’s future loss of earnings claim. He missed only four days from his job with a security company; his claim was based upon his allegation that he would have to stop work in 12 years due to his injuries

Inside Information:

  • Plaintiff did not produce the testimony of his treating neurologist; he did though produce his neuropsychologist.
  • Plaintiff argued that the defense neurologist, William Head, M.D., was nothing more than a “hired gun” who is not worthy of any respect as an expert.

On February 23, 2017, Diego Nieva-Silvera was stopped in his car on the Long Island Expressway in Queens when it was struck in the rear by another vehicle.

Claiming substantial injuries, Mr. Nieva-Silvera, then 42 years old, sued the driver and owner of the other vehicle. After a judge granted plaintiff’s motion for summary judgment and ruled that the other driver was fully at fault, the matter proceeded to a trial on damages only.

The Queens County jury awarded plaintiff pain and suffering damages in the sum of $41,000,000 ($5,000,000 past – two and a half years, $36,000,000 future – 41 years).

The trial judge ordered a reduction to $1,625,000 ($625,000 past, $1,000,000 future). On plaintiff’s appeal seeking reinstatement of the entire jury verdict, in Nieva-Silvera v. Katz (2d Dept. 2021), the appellate court ordered an increase to $2,250,000 ($750,000 past, $1,500,000 future).

Here are the injury details:

  • herniated disc at C6-7 that required fusion surgery with the insertion of a titanium plate and four screws

  • meniscal and collateral ligament tears in knee requiring arthroscopic surgery
  • continuing pain and limited ranges of motion
  • walks with antalgic gait, difficulty standing or sitting for long periods, difficulty sleeping, unable to dance or engage in previously enjoyed recreational activities

The defense argued that this was a minor car accident with plaintiff driving his car home and not seeking any medical attention until a week later when he went to a physical therapy clinic. Furthermore, they claimed plaintiff had preexisting disc degeneration in his spine and made a vey good recovery from his surgeries with no need for any future treatment.

Plaintiff countered that any preexisting degeneration was minor and inconsequential, he will need additional fusion surgery and at least one total knee replacement surgery and he will have permanent pain and disabilities that will require very substantial lifelong medical treatment.

The jury also awarded plaintiff future medical expenses in the sum of $5,000,000 which the trial court judge reduced to $680,000 which is approximately the amount of actual expenses plaintiff’s attorney asked for based on testimony.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the total sum of $12,000,000.
  • Defense counsel argued that the $41,000,000 award – more than three times the amount plaintiff asked for – was “astronomical” and showed that this was “the quintessential run-away jury.”
  • The jury awarded future damages for a period of 41 years, eight years more than the judge charged as to plaintiff’s life expectancy.

On February 14, 2015, Luz Morales was walking on the sidewalk in front of 2501 Davidson Avenue in the Bronx when she slipped and fell on snow and ice. She sued the building’s owner and managing agent arguing that they allowed a dangerous condition to exist for an unreasonable period of time.

The Kings County jury found that the snow and ice on which plaintiff slipped was the result of an accumulation from a storm which occurred on an earlier day. Accordingly, they found defendants to be 100% at fault for the happening of the accident. They then awarded plaintiff pain and suffering damages in the sum of $4,000,000 ($2,000,000 past –  2 1/2 years, $2,000,000 future – 25 years).

The trial judge ordered a reduction of the past pain and suffering award to $600,000 and then, in Morales v. Davidson Apartments LLC (2d Dept. 2021), the appellate court ordered a reduction of the future pain and suffering award to $1,400,000. Thus, plaintiff’s total pain and suffering award stands at $2,000,000 ($600,000 past, $1,400,000 future).

Here are the injury details:

  • severe fracture dislocation of right ankle (distal fibula and medial malleolus) requiring open reduction internal fixation surgery with insertion of plate and five screws

  • chronic regional pain syndrome/reflex sympathy syndrome (“RSD“)
  • chronic, daily pain, burning sensation and cramps
  • unable to weight bear on right lower leg
  • required to wear heavy metal boot and use cane at all times

Defendants argued that plaintiff did not have RSD, her prognosis is good and she does not need any further treatment.

Plaintiff, 58 years old on the date of the accident, was also awarded other damages:

  • future medical expenses, physical therapy treatment and prescription drug costs – $635,000 and
  • past and future lost earnings and social security benefits – $235,000

Inside Information:

  • In their summations, defense counsel suggested a total pain and suffering award of $500,000 would be appropriate; plaintiff’s counsel asked for $2,000,000 for past pain and suffering plus $2,000,000 for the future – the exact amounts then awarded by the jury.

On February 1, 2006, Raoul Lopez was driving on the Grand Concourse in the Bronx when he was pulled over by New York City Police Department officers. At some point after the traffic stop, one of the officers shot the 26 year old Mr. Lopez in the back of his neck.

Lopez sued the City of New York claiming that the shooting was an unreasonable amount of force that caused him permanent debilitating injuries. A Bronx County jury agreed with plaintiff and awarded him pain and suffering damages in the sum of $6,000,000 ($1,500,000 past – 13 1/2 years, $4,500,000 future – 35 years).

In Lopez v. City of New York (1st Dept. 2021), both the liability and pain and suffering damages verdicts have been affirmed.

Here are the injury details:

  • gunshot to back of neck contusing spinal cord, causing edema, initially rendering plaintiff a paraplegic
  • hospitalized for months at different institutions, requiring five surgeries, suffering collapsed lungs, and developing pneumonia, gastrointestinal ulcers and bedsores
  • wheelchair bound for two years before able to use walker to ambulate
  • permanent need for assistive ambulation device, can walk only with spastic ataxic gait
  • near complete loss of use of right arm, no use of right hand, clawing of left hand
  • continuing pain including nerve pain
  • unable to care for himself

The jury also awarded plaintiff $5,000,000 for future medical expenses over 35 years. The appellate court agreed with the defendant that this award was excessive because aspects of plaintiff’s projected future treatment were not necessary. For example,  he hadn’t received occupational or physical therapy for more than nine years, seen a physiatrist for over eight years and he never explained why he stopped those treatments. Accordingly, the appellate court reduced the future medical expenses award by approximately $700,000

Inside Information:

  • Plaintiff had two bags of heroin in his car when he was pulled over; he was ultimately convicted of misdemeanor drug possession.

On December 19, 2010, Jonathan Muniz injured his leg when he tripped and fell on a raised area in the kitchen floor of his apartment at 1755 Jarvis Avenue in the Bronx. He sued the owner and manager of the building alleging they were liable for the accident because he had for years before complained about the kitchen floor condition and they failed to remedy it.

A Bronx County jury found that the defendants were fully at fault and awarded plaintiff pain and suffering damages in the sum of $8,000,000 ($3,000,000 past –  six years, $5,000,000 future – 15 years).

The trial judge ordered a reduction of the pain and suffering award to $2,000,000 ($750,000 past, $1,250,000 future).

In Muniz v. Chimienti Realty Associates, Inc. (1st Dept. 2021), the appellate court affirmed both the liability finding and the $2,000,000 pain and suffering damages verdict.

Here are the injury details:

  • left distal tibia and fibula fractures treated emergently with open reduction internal fixation with a large nail inserted down the shaft of the tibia and secured with screws

  • ten day hospitalization with discharge to rehabilitation center from which plaintiff discharged himself against medical advice after one week
  • hospitalized 1/29/11-2/18/11
  • refractured tibia and ankle fracture requiring second surgery 2/1/11 to remove nail and screws which had broken and to place external fixator
  • second rehab facility admission for six months from 2/18/11
  • third surgery 3/24/11 to remove external fixator (and apply short leg cast)
  • permanent angulated deformity and two inch shortening of leg
  • confined to wheelchair (except for sleeping)

Plaintiff, 45 years old on the date of the accident, was permanently disabled nine years before the accident as a result of years of kidney failure. He also suffered from the amputation of his right toe due to diabetes, had diabetic neuropathy in both legs, was blind in his left eye and was at end stage renal failure (making dialysis three days a week necessary for the rest of his life).

Defendants argued that because of all of plaintiff’s pre-existing conditions, he needed to remain at the rehabilitation facility during his healing process following his fall and fracture and therefore  (a) he unreasonably failed to mitigate his damages by checking himself out early and (b) his subsequently developed disabilities were not causally related to the accident.

Inside Information:

  • Plaintiff resided in the apartment where he fell for seven years before the accident.
  • The trial judge charged the jury that plaintiff’s life expectancy was 27 years; the jury awarded future pain and suffering damages for only 15 years.