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New York Injury Cases Blog

Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice Awards

Punitive Damages Assessed in Medical Malpractice Case

By John Hochfelder on Posted in Medical Malpractice, Punitive Damages

On October 26, 2009, when six year old Claudialee Gomez Nicanor was examined by her pediatrician, a test revealed that her blood had an excessive amount of glucose so she was referred to an endocrinologist in Elmhurst, Dr. Arlene Basa Mercado.

Dr. Mercado’s Office (in the basement of her sister’s house)

On October 31, 2009, Dr. Mercado examined Claudialee and diagnosed obesity and impaired tolerance of glucose. She assumed her patient was developing type 2 diabetes but failed to consider it could have been type 1 and determined that she would not respond to the administration of glucose. During the next three months, Claudialee was seen by the two doctors but no further treatment was prescribed.

On January 24, 2010, Claudialee died as a result of diabetic ketoacidosis (a serious complication of diabetes that occurs when one’s body produces high levels of blood acids called ketones).

In the ensuing medical malpractice case, plaintiff’s medical expert testified unequivocally that had Claudialee’s blood been tested on or before three days before she died, her type 2 diabetes would have been revealed and insulin would have saved her life.

After a six week trial, the Queens County jury determined that Dr. Mercado departed from good and accepted medical practice in her diagnosis, care or treatment of Claudialee and that the departure was a substantial factor in causing injury which resulted in her death. They then awarded pain and suffering damages in the sum of $400,000 (two days) plus economic damages for the monetary loss to Claudialee’s parents  in the sum of $100,000.

The estate’s counsel also sought punitive damages claiming that Dr. Mercado maliciously destroyed handwritten notes of her office evaluations of Claudialee that were recreated (after she knew she was about to be sued for malpractice) to suggest that the doctor had scheduled more timely follow-up examinations. The jury agreed that the defendant’s actions warranted the imposition of punitive damages and in a separate deliberation, the jury awarded punitive damages in the sum of $7,500,000.

On appeal in Gomez v. Cabatic (2d Dept. 2018), the defendant’s destruction of her records in an effort to evade malpractice liability was set forth in detail but the award of punitive damages was reduced to $500,000.

Inside Information:

  • The defendant did not appeal either the liability determination or the awards for pain and suffering and economic damages.
  • Dr. Mercado acknowledged that she destroyed her handwritten office notes but claimed that they were accurately and fully transcribed before being destroyed.
  • Eric Turkewitz at New York Personal Injury Law Blog, called this a case of first impression because the appellate court “upheld an award of punitive damages in a medical malpractice case – not for the conduct that led to the death, but rather, for the effort to evade liability.”

 

Shoulder Injury Awards Modified

By John Hochfelder on Posted in Shoulder Injuries

On June 22, 2010, John Bermingham was working as a union concrete laborer in a shaft at the bottom level of the World Trade Center construction site when he was struck on the right shoulder by the lid of a vacuum cleaner that fell from a level about 30 feet above him.

In his ensuing lawsuit, Bermingham claimed that the owner, general contractor and a subcontractor were negligent and liable under the Labor Law in failing to provide safety devices and otherwise maintaining an unsafe work site. A Manhattan jury agreed and apportioned liability among the three defendants.

The jury also awarded pain and suffering damages to the 28 year old plaintiff in the sum of $300,000 ($100,000 past – 4 1/2 years, $200,000 future – 40 years).

In Bermingham v. Atlantic Concrete Cutting (1st Dept. 2018), after the the trial judge reduced the award to $150,000 ($50,000 past, $100,000 future), the appellate court determined that reasonable compensation for plaintiff’s pain and suffering is $200,000 ($100,000 past, $100,000 future).

The appellate court decision does not mention plaintiff’s injury – he sustained a SLAP tear (a superior labral tear from anterior to posterior) of his right shoulder.

Here are additional injury details:

  • date of accident emergency room treatment with discharge in sling and prescription for pain medicine
  • steroid injection
  • physical therapy
  • arthroscopic surgery on 3/10/11 including three procedures:  placement of anchor in bone to hold the labrum in place; tightening of loose ligaments; and, removal of bursa
  • restricted range of motion, continuing daily pain and limitations as to lifting heavy objects and returning to athletic pursuits such as rock climbing or whitewater paddling

Defendants argued that the surgery was successful and plaintiff returned to lighter work in construction as well as other jobs including one at a ski resort that involved lifting, cleaning and raking. Furthermore, they pointed out, plaintiff admitted he can ride a mountain bike for an hour.

The jury also awarded plaintiff damages for loss of earnings in the sum of $1,525,000 ($225,000 past, $1,300,000 future – 26 years). Defendants argued that this award (a) did not account for customary work interruptions over plaintiff’s expected work life and  (b) assumed without basis that plaintiff could not work as a concrete laborer again. The defense economist opined that with additional education, plaintiff’s loss of earnings would be no more than $595,000.

The trial judge apparently agreed with the defendants’ economist and ordered a reduction of the loss of earnings award to $595,000. The appellate court, without explanation, adjusted the loss of earnings award to $700,000 for both past and future loss of earnings.

Inside Information:

  • As indicated in the appellate court decision, the defendants’ main argument on appeal was that the jury verdict should be set aside in its entirety (liability and damages) because of several instances of misconduct by plaintiff’s trial attorney. While the ultimate relief sought by defendants was not granted, the judges agreed that there was misconduct that could not be condoned. Among other things, defense counsel alleged that “plaintiff’s counsel tried to incite the jury by bringing up outrageous prejudicial events with no relevance to the case” – namely questioning a defense witness about the alleged prior history of one of the defendants, general contractor Bovis Lend Lease LMB, Inc. Also, they alleged, that plaintiff’s counsel improperly suggested to the jury that defendants intentionally harmed the plaintiff and other construction workers in an effort to protect their wealth.

Liability Verdict Affirmed but Pain and Suffering Award Reduced for Bus Passenger

By John Hochfelder on Posted in Ankle Injuries

On November 4, 2006, at about 9:30 a.m., Yvette Martinez stepped out of a city bus at 163rd Street and Third Avenue in the Bronx. As she moved her left foot from the last step down to the street below, she stepped into a pothole, fell and injured her ankle.

Ms. Martinez, then 38 years old, had taken the same bus route for many years and on all prior occasions, the bus, when stopped, had been lined up with the sidewalk so that she had been able to step down from the bus door directly onto the sidewalk. On this day, though, the bus pulled into the bus stop at an angle in a position where the pothole was next to and directly below the bus’s rear exit.

In her ensuing lawsuit, Martinez claimed that her accident occurred because the bus driver failed to provide her with a reasonably safe place to exit the bus and the Bronx jury agreed and awarded $1,800,000 for her pain and suffering damages ($300,000 past – 10 years, $1,500,000 future – 30 years).

In Martinez v. Metropolitan Transit Authority (1st Dept. 2018), the appellate court affirmed the full liability verdict against the transit authority but agreed with the defense that the pain and suffering award was excessive and ordered a reduction to $1,200,000 ($300,000 past, $900,000 future).

Here are the injury details:

  • Trimalleolar left ankle fracture dislocation
  • Open reduction internal fixation surgery with insertion of an eight-hole semitubular plate with eight screws in the lateral malleolus and a cannulated lag screw in the medial malleolus
  • Casted for eight weeks, physical therapy thereafter for three months
  • Unable to return to work as administrative assistant for six months
  • Continuing and constant pain, limp and disabilities including unable to take her children to park to dance and play, cannot ride a bike, no longer stable on feet, cannot perform housework
  • Traumatic arthropathy – narrowed joint space with calcification within (meaning that pieces of cartilage broke off and became calcified)
  • Needs future surgery to remove hardware and clean ankle joint

Plaintiff’s treating podiatrist testified that she might require even more surgery after the hardware removal due to continuing joint deterioration – a total ankle joint replacement or an ankle fusion. Defendants’ expert orthopedic surgeon testified that her fractures had completely healed and she did not require further treatment.

Inside Information:

  • Plaintiff’s mother had just died and, at the time of the accident, plaintiff was on her way to her mother’s nursing home to pick out clothes for her mother’s wake.
  • Plaintiff first saw her podiatrist in August 2014 upon the recommendation of her lawyers. By that time, she had not sought any medical treatment for her ankle for seven years.

Appellate Court Substantially Reduces Pain and Suffering Award for Foot Injury

By John Hochfelder on Posted in Foot Injuries

On August 15, 2014, at about 9 a.m., Jessie Jay Mosley fell down on the sidewalk upon exiting the Nunez Depot hardware store on Third Avenue in the Bronx.

Passersby helped her up and into a bus across the street and the 70 year old Ms. Mosley went home and rested in bed for a few hours. Later that night, when she tried to stand up and she couldn’t put weight on her left foot,  she realized she needed to go to the hospital so an ambulance was called and transported her to a nearby emergency room.

In her ensuing lawsuit, Ms. Mosley claimed that that (a) her fall was due to a defective sidewalk (the condition of which it was established at trial had been present for many years) and (b) she sustained both a foot injury and an aggravation of a pre-exiting back condition.

On May 15, 2017, the jury ruled that the defendants (the owners and operator of the hardware store) caused the accident due to their negligent maintenance and repair of the sidewalk and the jury awarded plaintiff pain and suffering damages in the sum of $1,650,000 ($350,000 past – two years, nine months, $1,300,000 future – 14 years).

The trial judge agreed with the defendants that the verdict was excessive and he ordered a reduction to $400,000 ($150,000 past, $250,000 future). In Mosley v. E.H.J. LLC (1st Dept. 2018), the appellate court agreed with the trial judge  and affirmed the reduction to a total of $400,000.

Here are the injury details:

  • nondisplaced fractures of the left foot cuboid bone and fourth metatarsal
  • cam boot – six weeks
  • physical therapy – six sessions
  • aggravation of pre-existing lumbar stenosis (a narrowing of the spinal canal in the lower back) with radiculopathy requiring several epidural steroid injections
  • continuing pain in foot and back and swelling in foot, requiring use of cane to walk
  • unable to clean house, teach at Sunday school, resume full missionary work involving visiting home-bound persons and taking them to medical appointments, or cook (all due to pain and impaired ability to stand and walk)

Orthopedic surgery experts testified for both sides. Plaintiff’s expert opined that Ms. Mosley would require a fusion surgery to her foot to alleviate her intractable pain from resulting traumatic arthritis and that the only option for her aggravated lumbar stenosis would be to perform a laminectomy and fusion surgery. Defendants’ expert testified that plaintiff’s fracture healed well, there was no arthritis, the mechanism of injury would not have caused an aggravation of plaintiff’s lumbar stenosis, she had no radiculopathy and there is no need for any surgery at all.

Inside Information:

  • Plaintiff was diagnosed with lumbar stenosis and began experiencing back pain several years before her fall (a 2010 MRI indicated she had severe lumbar stenosis). The trial judge stated that the evidence  “did not establish a significant aggravation of the spinal stenosis” and  “it could not have been a major component of the jury’s award.”
  • In her summation, plaintiff’s attorney asked the jury ro award $350,000 for past pain and suffering (the exact amount awarded) plus $1,125,000 for the future (less than the amount awarded!).

 

 

 

 

Jury’s Pain and Suffering Award for 84 Year Old Woman’s Shoulder Fractures Reduced on Appeal

By John Hochfelder on Posted in Shoulder Injuries

On February 6, 2011, Dorothy Jones tripped and fell in the vestibule of the Harkness Pavilion at New York-Presbyterian Hospital in Manhattan. As a result, Ms. Jones, then 84 years old, was in extreme pain, could not move her right (dominant) arm and had to be lifted up off the floor by ambulance attendant who then took her to the emergency room. Due to the fall, she sustained fractures of her proximal humerus.

 

In her ensuing lawsuit against the hospital and a related entity, Ms. Jones testified that she fell because of both a dirty surgical or food service cap on the floor and a hole covered by a rubber rain mat that bent when people walked over it. The mat had been placed by hospital maintenance personnel a month earlier after a flood damaged the floor and some ceramic tiles were removed. The jury found that (a) the hospital was negligent, (b) the cap, the missing tiles and the mat were concurrent causes of plaintiff’s injuries and (c) Ms. Jones was not at all comparatively negligent.

In their verdict, the jurors awarded plaintiff pain and suffering damages in the sum of $1,000,000 ($600,000 past – five years, $400,000 future – five years).

Defendants applied to the trial judge for a judgment notwithstanding the verdict, arguing that (a) there was insufficient evidence as a matter of law to prove that they had either actual or constructive notice of any dangerous or recurrent condition (i.e., the cap on the floor) and (b)  any height differential in the floor surface was insignificant and trivial. The judge agreed and he vacated the judgment and dismissed the complaint.

Plaintiff, though, prevailed on appeal; the verdict was reinstated and, because the trial judge had neglected to rule on defendants’ alternative request (to reduce the jury’s damage award of $1,000,000), the case was sent back to the trial judge to rule on the propriety of the amount of damages. He then decided that the award should be reduced from $1,000,000 to $300,000 ($150,000 past, $150,000 future).

Plaintiff again appealed, this time arguing that the trial judge should not have reduced the damage award and that it should be reinstated. In Jones v. New York-Presbyterian Hospital  (1st Dept. 2018), the appellate court declined to reinstate the damage award, instead determining that $550,000 ($400,000 past, $150,000 future) is the appropriate pain and suffering award in this case.

Here are the injury details:

  • Emergency room treatment for 12 hours on day of accident; diagnosed with three-part comminuted proximal humerus fracture of greater tuberosity and humeral neck; discharged with sling
  • Follow-up treatment with orthopedic surgeon the next day (and for nine months thereafter) – treated conservatively with three injections and physical therapy for a few months
  • Malunion of the bone fractures with impingement syndrome (because of an elevated tuberosity)
  • Continuing pain, significant loss of range of motion, stiffness and difficulty sleeping
  • Unable to raise arm above head; unable to perform household tasks such as cooking and cleaning

Plaintiff produced an orthopedic surgeon expert, Gabriel Dassa, M.D., who testified that due to her  fall, plaintiff  has a 70% loss of function of her right shoulder, progressive post-traumatic arthritis caused by the malunion and the only reasonable option left for her is a total shoulder replacement which, he said, is done for pain relief and does not restore function.

Defendants produced their own expert, Andrew Rokito, M.D., the Chief of the Division of Shoulder and Elbow Surgery at NYU Langone Medical Center. Dr. Rokito opined that (a) plaintiff has a functional range of motion in her shoulder that is commensurate with the ability to perform activities of daily living independently, (b) she has no arthritis in her shoulder joint and (c) she has significantly improved with no need for any further medical treatment for her shoulder.

Plaintiff testified that before the accident she was self-sufficient and self-reliant, would go food shopping and cook on her own, and was very social and happy. After the accident, she (and her daughter) testified, she became immobile, reliant on her daughter and depressed because of chronic shoulder pain.

The defense, though, suggested that plaintiff’s pre-existing medical conditions and advanced age contributed to her pain and suffering noting that plaintiff had (a) been taking a narcotic pain medication for years before this accident (since she fractured her tibial plateau in 2008), (b)  chronic obstructive pulmonary disease and was hospitalized in 2015 for pulmonary edema, (c) coronary artery disease with a heart attack in 2001 and three hospitalizations for cardiac conditions in the six months before trial , and (d) long-standing lumbar disc disease and pain. Further, they noted, Ms. Jones had not, as of the time of trial, received any treatment for her shoulder in the preceding four years.

Inside Information:

  • This was a very hard fought case, over seven years, involving some of New York’s most highly regarded attorneys: Burns & Harris (trial counsel for plaintiff), Brian J. Isaac of  Pollack, Pollack, Isaac & Decicco (appellate counsel for plaintiff) and Barbara D. Goldberg of Martin Clearwater & Bell (appellate counsel for defendants).

 

 

Traumatic Brain Injury Jury Awards Reinstated on Appeal after Substantial Increase by Trial Judge

By John Hochfelder on Posted in Brain Injuries, Loss of Consortium Damages

On November 7, 2013, Paige Mecca, a 43 year old owner of a small solar energy company, was struck in the head and neck by a large 40 pound tray of dishes and food dropped by a waitress who lost her balance at a luncheon at the Buffalo Niagara Convention Center.

The Buffalo Niagara Convention Center

Claiming that the convention center was liable for the negligence of its waitress and Ms. Mecca’s resulting traumatic brain injuries, suit was brought in Supreme Court, Erie County. On October 11, 2016, the jury returned a verdict finding the defendant fully at fault for the incident and injuries and awarding plaintiff pain and suffering damages in the sum of $625,000 ($250,000 past – three years, $375,000 future – 36 years).

In a post-trial motion, Ms. Mecca successfully argued that the damages award was inadequate; the the judge ordered an increase to $3,800,000 ($800,000 past, $3,000,000 future).

On appeal in Mecca v. Buffalo Niagara Convention Center Management Corp. (4th Dept. 2018), the trial judge’s increase was set aside and jury’s  pain and suffering award was reinstated.

Here are the injury details:

  • traumatic brain injury (TBI)
  • cerebral hypoperfusion
  • concussion
  • cognitive fatigue and impairment
  • memory loss
  • jamais vu (unfamiliarity with her surroundings)
  • impaired coordination and balance, dizziness, double vision
  • complex partial seizures
  • C4-5 and C5-6 disc herniations
  • sleeplessness, anxiety, depression and sexual difficulties
  • can no longer drive a car, take a vacation, hike or be intimate with her husband
  • has only about two hours of “good time” a day, remaining essentially housebound except for medical care

Plaintiff claimed that all of her injuries are permanent, she has not and cannot return to work and she will require lifelong medical treatment. Defendant contended that plaintiff exaggerated her symptoms, malingered and her alleged injuries were nowhere near as serious as she claimed. They also claimed she had significant pre-existing conditions including neck pain for which she (briefly) treated with an acupuncturist, a concussion (12 years earlier) and migraine headaches (associated with her hormonal cycle).

A central disagreement between the parties was whether there was sufficient, or any, objective proof of a brain injury. Plaintiff conceded that she had no visible bruises from the incident, there was no loss of consciousness, she remained at the luncheon until it ended and did not seek any medical attention until she was treated briefly at an urgent care center that night. She did, though, follow up with a neurologist two days later complaining of disorientation, confusion, headaches, dizziness and anxiety. She soon began experiencing seizures and over the next three years, Ms. Mecca treated extensively for these and other injuries (especially, neck pain) with providers in many different specialties including neurology, spine surgery, orthopedic surgery, concussion, physical therapy, ophthalmology and psychology. And she went for treatment and second opinions five times at the Mayo Clinic in Minnesota.

Although most diagnostic testing (MRI, CT, EEG) did not disclose any objective brain injury, a so-called  SPECT scan (single-photon emission computerized tomography) showed a pattern of hypoperfusion affecting several areas and significant volume of the brain, consistent with traumatic brain injury. Two defense medical experts contended, though, that  SPECT studies are generally unreliable and one of them, a neurosurgeon who examined plaintiff, concluded that she had no injury, impairment or disability to her brain and that she has “either a psychosomatic conversion reaction or is malingering, fabricating, hysterical or a combination of these.”

Plaintiff claimed she will require substantial medical treatment for the rest of her life, including medications, diagnostic tests, cognitive, physical and other therapies and home health aide services. Her life care plan specialist opined that the cost for all future medical expenses will be $2,200,000. The defense argued that plaintiff required no future medical treatment at all due to the incident. The jury awarded past medical expenses in the sum of $49,000 plus future medical expenses in the sum of $617,000 (36 years). The trial judge increased the future medical expense award to $2,200,000 but the appellate court reinstated the $617,000 jury award.

The jury also awarded $582,330 for past lost wages and business profits (Ms. Mecca had been earning about $130,000 a year and her business was growing substantially until she was injured) plus $500,000 for the future (14 years). After the trial judge ordered an increase of the future award to $5,000,000, the appellate court reinstated the jury award.

Plaintiff’s husband presented a claim for the loss of his  wife’s services and society based upon “the virtual loss of his active, vibrant, loving and caring wife.” He asserted he now has to bear sole responsibility for caring for, nurturing and guiding their three teen-age sons, faces the prospect of all of the years with his wife after the boys have grown and left home and that the loss of his wife’s significant financial contributions to the family has put extra financial pressure on him.  The jury awarded loss of services and society damages in the sum of $950,000 ($300,000 past, $650,000 future – 10 years), an amount the trial judge did not disturb and the appellate court affirmed.

Inside Information:

  • When the jury announced a verdict had been reached, there was no award at all for Mr. Mecca’s loss of services and society. Plaintiff’s counsel immediately argued that this was inconsistent since the jury found for plaintiff on liability and awarded her substantial past and future damages in all other categories. After some colloquy on the record, the trial judge asked the jurors if they rejected this claim upon which the foreperson told the judge they “decided that we didn’t have to do separate amounts for [plaintiff and her husband]. We didn’t realize.” The judge told them they have to “separately decide that,”  he recharged the jury and 20 minutes later they announced a $950,000 verdict for loss of services and society.
  • In his summation, plaintiff’s counsel asked the jury to award “three to four million dollars” for past pain and suffering and for the future an amount at least equal to plaintiff’s entire economic loss. Defense counsel focused on his contention that his clients were not at all negligent while suggesting that if the jury were to rule otherwise $100,000 should be awarded for pain and suffering.
  • The defendants argued that plaintiff caused the accident when plaintiff, after having leaned forward in her chair causing its rear legs to come off the ground, then leaned backward as the waitress with the tray walked by and the chair came down on her foot causing her to lose her balance. There was no corroborating evidence as to this version of the facts.

 

 

 

Judgment Affirmed in Burn Injury Case

By John Hochfelder on Posted in Burn Injuries

On August 15, 2013, Lillyan Rosenberg received her third and final acupuncture treatment for groin pain from Jing Jiang at Jing-River Accupuncture. In addition to acupuncture needles, Dr. Jiang used a heat lamp that caused third degree burns and permanent scarring,

In the ensuing lawsuit, the 87 year old plaintiff claimed that the heat lamp should not have been used, she was left unattended and the doctor failed to respond to her complaints regarding the lamp. The defendants conceded liability and in a damages only trial, on January 27, 2016, the Queens County jury awarded plaintiff pain and suffering damages in the sum of $175,000 ($150,000 past – 2 1/2 years, $25,000 future – five years). Her husband was awarded $25,000 (past only) for  his loss of consortium claim.

The defendants appealed claiming that they did not get a fair trial because (a) some questions plaintiff’s attorney asked were leading and (b) plaintiff’s expert dermatologist testified regarding medical history given to him by the plaintiff.

In Rosenberg v. Jiang  (2d Dept. 2017), both defense claims were rejected by the appellate court and the judgment was affirmed.

Defendants challenged the severity of plaintiff’s injuries only through cross-examination (about possible cosmetic procedures that might lessen the visibility of scars) but they did not offer any expert medical testimony. They suggested that Ms. Rosenberg’s wounds took longer to heal because she is a diabetic and they noted that her scars are not generally visible because they are on a part of plaintiff’s body that is covered by clothing. Defendants did not, though, challenge the amount of the damage awards either in a post-trial motion or on appeal.

Inside Information:

  • In closing arguments, plaintiff’s counsel asked the jury to award $800,000 whereas defendants’ counsel suggested an award “in the neighborhood of $50,000.”
  • Plaintiff’s appellate counsel, Arnold E. DiJoseph, III, argued that the appeal was frivolous in view of the conceded liability, “terrible” burns and permanent scarring and he argued that even if a new trial were ordered, defendants  “could not have done better than they did” already.

 

 

Appellate Court Affirms Liability Verdict and Modifies Damages Awarded by Jury in Truck-Pedestrian Fatality Case

By John Hochfelder on Posted in Wrongful Death

On May 10, 2007, Ivan Hernandez Morales, then 21 years old, was killed in a work-related accident when a private garbage truck lurched backward and he was pinned and crushed against a dumpster in a driveway off 37th Street in Astoria. Mr. Morales was employed  as a helper on the truck owned by his employer Crown Container Co. and operated by a coworker.

In the ensuing lawsuit to recover damages for pain and suffering and wrongful death, plaintiff asserted claims against Crown, related companies and its driver.  In the midst of trial, the Crown defendants settled with plaintiff for the sum of $1,550,000 plus the waiver of the workers compensation lien of about $150,000. The only defendant remaining at trial was Advanced Fleet Maintenance, Inc. which serviced the truck’s transmission six months before the accident (and had been brought into the case by Crown as a third-party defendant).

The Kings County jury found that Advanced was 49.5% liable for the accident after trial evidence demonstrated that after servicing and inspecting the truck, it allowed the truck to leave its facility without a required functioning neutral interlock system. Crown was found to be 49.5 % at fault and the driver 1% at fault.

The jury awarded pre-death pain and suffering damages in the sum of $3,000,000 ($1,000,000 for pre-impact terror and $2,000,000 for conscious pain and suffering).

In Vargas v. Crown Container Co., Inc. (2d Dept. 2017), the liability verdict was affirmed but the pain and suffering damages award was reduced to $1,000,000 ($250,000 for pre-impact terror and $750,000 for conscious pain and suffering).

As indicated in the court’s decision, the medical examiner (who performed the autopsy) testified as an expert for the plaintiff that Mr. Morales sustained multiple rib fractures and internal injuries that resulted in his death one or two minutes after impact. Here are additional facts that were adduced regarding the claims for pre-impact terror and conscious pain and suffering:

  • the impact caused blunt trauma to the head and massive crush injuries of the torso including a ruptured diaphragm, fractured sternum, eight rib fractures, an arm fracture and lacerations of the abdominal wall, liver (almost torn in half) and spleen
  • the truck driver held Mr. Morales in his arms at the scene and said: “His eyes were watching me. He was moving his arms.”
  • EMS arrived 10 minutes after impact at which point Mr. Morales was not breathing and had no pulse. He was pronounced dead upon his arrival at a hospital.
  • the defense expert emergency medicine physician opined that the decedent had no time to appreciate that the truck was approaching him and therefore did not suffer any pre-impact terror. Furthermore, the expert opined that the impact and injuries caused massive internal bleeding, the result of which would have been an immediate loss of consciousnesses (since blood flow to the brain is required for consciousness)

Mr. Morales was survived by his wife and their two year old son and the jury awarded loss of parental guidance damages in the sum of $3,000,000 ($2,000,000 past – seven years, $1,000,000 future – 16 years). The appellate court reduced the loss of parental guidance damage award to $1,000,000 ($650,000 past, $350,000 future).

The jury also awarded and the appellate court affirmed loss of earnings damages in the sum of  $1,208,000 ($168,000 past – seven years, $1,040,000 future – 16 years).

Inside Information:

Judgment Affirmed for Plaintiff in Pedestrian Knockdown Case

By John Hochfelder on Posted in Back Injuries, Knee Injuries, Shoulder Injuries

On February 21, 2011, Juan Quijano was crossing 32nd Street at Sixth Avenue in Manhattan when he was struck and knocked to the ground by a taxi whose driver was making a left turn.

32nd Street at Sixth Avenue

In the ensuing lawsuit, a Kings County jury found the driver fully at fault and the matter then proceeded to a trial on damages. Mr. Quijano, then 31 years old, was awarded $800,000 for his pain and suffering ($300,000 past – three and a half years, $500,000 future – 40 years). In Quijano v. American Transit Insurance Co. (2d Dept. 2017), the appellate court affirmed the judgment, rejecting defendants’ contention that the award was excessive.

As indicated in the court’s decision, plaintiff sustained shoulder, knee and spinal injuries. He was taken from the scene by ambulance to the local hospital  complaining of pain in those areas. Here are the injury details:

  • Shoulder: torn labrum of the rotator cuff with impingement syndrome requiring arthroscopic surgery in 2012 and leaving plaintiff with permanently damaged cartilage, significantly reduced range of motion and muscle power and at high risk for developing traumatic arthritis, adhesive capsulitis and scar tissue
  • Knee: medial meniscal tear and tilting of the patella leaving plaintiff with permanently damaged cartilage and requiting future surgery
  • Back – partial tear/bulge of the L4-5 disc with radiculopathy at the L5 nerve root (confirmed by EMG nerve test) requiring epidural injections and leaving plaintiff in constant pain
  • Neck – C5-C6 radiculopathy affecting biceps

Plaintiff claimed at trial that his pain was so acute that he had been for years and to the present taking 3-4 Vicodin pills per day 3-4 days a week. Furthermore, he alleged he still had difficulties with lifting heavy items, running with his child and playing soccer.

In addition to the award for pain and suffering, the jury also awarded, and the appellate court affirmed,  damages for future medical expenses in the sum of $800,000 (40 years). Plaintiff’s rehabilitation medicine physician testified that required medical expenses over Mr. Quijano’s lifetime will cost about $1,590,000 (at the rate of $39,000 per year ),  including $27,000 per year for epidural injections to both his back and neck, and costs for physicians, physical therapy and diagnostic tests.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $100,000 – the limit of the applicable liability insurance policy; the offer was $40,000. The amount of the judgment in excess of the coverage might be recovered in a bad faith refusal to settle claim.
  • Plaintiff resumed work (sales and house paining) a few months after the accident and there was no earnings loss claim presented to the jury.
  • The driver stated to a police officer at the scene that plaintiff ran into the side of his taxi but the driver was precluded from testifying at trial after he failed to appear several times for his pre-trial deposition.

 

 

Two Mesothelioma Cases Addressed by Appellate Courts

By John Hochfelder on Posted in Mesothelioma

For many years in the 1970’s Walter Miller had worked at automobile service shops grinding automotive brakes that contained asbestos. In late 2013, Mr. Miller, then 61 years old, began getting tired and out of breath from simple tasks. He went to his physician and had to have 2 ½ liters of fluid drained from his lung. After another episode, further testing and invasive procedures including another huge fluid removal procedure, he was diagnosed with mesothelioma.

Since his diagnosis, Mr. Miller underwent several rounds of debilitating chemotherapy, the application of radiation and, in September 2014, the surgical removal of one lung, the surrounding pleura and his diaphragm. After 10 days in the hospital for the surgery, Mr. Miller, who lived alone, spent six gruesome weeks trying to recover at his brother’s home. Unfortunately, his condition was terminal and he was not expected to live more than 1-2 years after trial during which time a physician testified his tumor would recur and spread, causing weight loss, pain, fatigue, shortness of breath and narcotic pain medication.

In his lawsuit against the manufacturer and designer of a grinder plaintiff used over the years, on 9/25/15, the Manhattan jury awarded pain and suffering damages in the sum of $25,000,000 ($10,000,000 past, $15,000,000 future – one year).

In a post-trial motion addressing the amount of the damages awards, defense counsel suggested a reduction $4,500,000 while plaintiff’s counsel suggested $18,000,000.The trial judge issued a decision reducing the award to $9,000,000 ($5,000,000 past, $4,000,000 future) an amount stipulated to by plaintiff and affirmed on appeal in Miller v. BMW of North America, LLC (1st Dept. 2017).

 

Nicholas Dominick, a 64 year old retiree, was diagnosed with mesothelioma and cancer of a lung in the fall of 2013. Mr. Dominick had worked at a manufacturing plant in Utica in the 1970’s operating a grinding machine. He claimed that his mesothelioma stemmed from his inhalation of fibers of asbestos from products supplied by the defendant that were used in the plant where Mr. Dominick worked.

Shortly after his diagnosis, Mr. Dominick underwent a pleurectomy, which involved the removal of the inner and outer lining of his left lung. Then he underwent four cycles of chemotherapy and daily application of radiation for six weeks. Side effects included pneumonitis (inflammation of the lungs) and violent fevers. At trial in March 2015, plaintiff was suffering from severely impaired respiration, leaving him unable to perform most activities of daily living. His doctors estimated he would survive one to two years.

In Dominick v. Charles Millar & Son Co. (4th Dept. 2017),  an upstae appellate court affirmed an Oneida County jury award of pain and suffering damages in the sum of $4,000,000 ($1,000,000 past –  two years, $3,000,000 future – one year).