On October 19, 2005, Louis Demetro was employed as a stationary engineer by the New York City Health and Hospitals Corporation in the newly constructed boiler room of Jacobi Medical Center. During the course of his employment, Mr. Demetro, then 39 years old, was knocked to the ground and injured after being struck by a three foot long piece of angle iron that fell from the boiler’s exhaust ductwork 15 feet above him.

Claiming significant neck injuries, Mr. Demetro sued several entities, including the owner of the hospital, the architect and design engineer of the boiler system, and the project manager. A Bronx jury determined that three of the defendants were at fault and they then awarded plaintiff pain and suffering damages in the sum of $3,000,000 ($1,500,000 past – 12 years, $1,500,000 future – 20 years). His wife was awarded loss of services and consortium damages in the sum of $500,000.

The trial judge agreed with the defendants that the award was excessive  and she reduced it to $1,700,000; however, in Demetro v. Dormitory Authority of the State of New York (1st Dept. 2021), the appellate court reinstated the $3,000,000 pain and suffering award. 

Here are the injury details:

  • herniated discs at C4-5, C5-6 and C6-7
  • anterior cervical discectomy and fusion surgery on 8/19/08

  • likelihood of additional surgery to the cervical spine in the future
  • bilateral carpal tunnel syndrome with two surgeries
  • continuing pain and restrictions of activities of daily living, unable to work

Defendants argued that plaintiff did not sustain any injuries in this accident and that he had pre-existing degenerative joint disease due to prior accidents and activities.

Inside Information:

  • Plaintiff was also awarded lost earnings damages in the sum of $2,000,000 and medical expenses in the sum of $1,275,000.
  • Plaintiff hired and fired several lawyers during the course of this litigation. After closing arguments, he told the trial judge he wanted to fire his trial counsel because he asked the jury to award only $5,000,000 for pain and suffering damages despite his request that the attorney ask for $20,000,000. The judge denied plaintiff’s application.

 

On February 17, 2014, Nelsida De La Rosa was injured when she stepped out of the shower and the bathroom ceiling in her apartment collapsed and sheetrock debris fell down and struck her head.

Ms. De La Rosa, then 46 years old, sued her landlord who conceded liability on the day the jury was selected in 2019. The matter then proceeded to a trial on damages only and the Bronx jury awarded plaintiff pain and suffering damages in the sum of $2,537,000 ($137,000 past – five years, $2,400,000 future – 31 years).

After the trial, both plaintiff and defendant challenged the damages awards – plaintiff argued that the past pain and suffering award was inadequate and should be increased to $1,000,000 and the defense argued that the overall award was excessive, especially the future pain and suffering award. The trial judge denied both motions.

Defendant appealed arguing that the trial was unfair and riddled with errors by the trial judge such as her decision to preclude testimony from a biomechanical expert (who would have opined that the falling ceiling materials could not have caused any injury to the plaintiff). In De La Rosa v. Nelson Avenue Holdings (1st Dept. 2021), the judgment was affirmed.

Here are the injury details:

  • C5-6 herniated disc requiring discectomy and fusion surgery with plate and screws

  • adjacent segment disease and nerve damage
  • extensive physical therapy and trigger point injections before and after surgery
  • lumbar radiculopathy, headaches and shoulder pain
  • continuing, progressive and radiating neck and back pain; 50% loss of range of motion
  • unable to sleep well, difficulty walking, unable to lift grandson and unable to resume dancing

The defense argued that the jury was not rational in its failure to consider that for many years plaintiff had preexisting neck, shoulder and back injuries (hospital records indicated that plaintiff had pre-existing lifelong headaches and radiating neck pain).

Inside Information:

  • In its appeal, the defendant did not mention its previously asserted claim of excessiveness of the damages award.
  • Plaintiff was also awarded damages for future medical expenses in the sum of $1,500,000 (31 years).

 

 

On January 2, 2014, a teacher at a high school in Manhattan performed a demonstration for a tenth-grade chemistry class intending to show her students how various nitrates, when lit, caused flames to appear in different colors. The demonstration – known as “The Rainbow Experiment” – went horribly awry when a giant fireball erupted and engulfed one of the students, 16-year-old Alonzo Yanes.

In the ensuing lawsuit against the teacher and the city’s board of education, the jury determined that the defendants were negligent, and they awarded pain and suffering damages in the sum of $59,170,000 ($29,585,000 past – five and a half years, $29,585,000 future – 54 years).

In Yanes v. City of New York (1st Dept. 2021), the award was reduced to $29,000,000 ($12,000,000 past, $17,000,000 future), an amount that represents the largest pain and suffering award ever approved by an appellate court in New York.

Here are some of the injury details:

  • third degree burns to 31% of body – mainly face, ears, neck, arms and hands
  • degloving injuries to hands and corneal abrasion to eye
  • emergency coma induction for three days and intravenous administration of 38 pounds of fluids
  • two-month hospitalization with twice a day agonizing surgical debridement procedures in hydrotherapy unit; followed by three-month admission to another hospital
  • treatment of neck and face burns with cadaver grafts with thousands of staples
  • replacement of cadaver grafts with skin grafts from plaintiff’s scalp and legs, causing a total of more than 50% of his body to be subjected to the equivalent of second- and third-degree burns
  • permanent, painful and disfiguring and contracting scars with ears destroyed and face left unrecognizable

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $50,000,000 against an offer of $10,000,000.
  • In his summation, plaintiff’s attorney asked the jury to award $70,000,000 for past pain and suffering damages; he did not suggest a figure for future damages. Defense counsel argued there was no negligence but that if the jury disagreed then he suggested they award $5,000,000 for pain and suffering damages.
  • Defendants did not challenge the liability finding in their appeal briefs.

On June 10, 2005, Joseph Fratello was making a turn into a parking lot when a Suffolk County bus collided with his van on Montauk Avenue in Southampton .

Fratello, then 29 years old, sued the driver and the county claiming the bus driver’s negligence caused the accident and injuries to his hip and wrist. The jury rendered a defense verdict finding that defendants were not at all liable for the accident.

Plaintiff’s motion to set aside the defense verdict was granted and affirmed on appeal. In the second trial, the jury found that defendants were completely at fault and another jury then awarded plaintiff pain and suffering damages in the sum of $150,000 ($50,000 past – 14 years, $100,000 future – 33 years).

Defendants appealed but the  judgment was affirmed in Fratello v. County of Suffolk (2d Dept. 2021).

Here are the injury details:

  • torn labrum in hip

  • tear of right dominant wrist’s triangular fibrocartilage complex (“TFCC”)
  • five months of physical therapy
  • continuing pain and limited ranges of motion
  • unable to resume golfing, kayaking and surfing

In their successful opposition to plaintiff’s motion to increase the jury’s damages award, defendants noted that plaintiff did not miss any time from his work as an electrician, he was able to use tools, he could lift sheets of plywood and he could climb a ladder. They also noted that plaintiff had congenital hip dysplasia and had suffered a right arm fracture when he was six years old (that could have caused the tears in his TFCC joint).

Inside Information:

  • Before the first trial, plaintiff’s settlement demand was $750,000. Before the second trial, it was $350,000 against an offer of $35,000.
  • Interest on the judgment accrued at 9% per annum since the 2011 determination of defendants’ liability.

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.