On December 17, 2013, Michael Sabine was injured when he was driving his vehicle in Waterloo and a state park employee in a state-owned pick-up truck lost control and crossed into his lane causing a crash.

Mr. Sabine, 61 years old, was granted summary judgment as to liability by a court order issued on 9/26/18. The case then proceeded to a trial on the issue of damages before the Court of Claims judge.

The judge issued her damages decision on 10/27/21 awarding claimant pain and suffering damages in the sum of $550,000 ($375,000 past – eight years, $175,000 future).

Mr. Sabine claimed he sustained nerve root impingement in his neck that ultimately required decompression and fusion surgery with the implantation of a titanium rod from C3-7. His pain continued through trial and his doctor testified that his range of motion limitations are permanent and he may have chronic lifetime pain.

The defense argued that Mr. Sabine’s pain and limitations were due to degenerative disc disease that preexisted the accident and he would have needed the surgery even had the accident not occurred.

Claimant countered that he had never before had neck pain or limitations and that at the time of the crash he felt he was in the best shape of his life while training for the “American Ninja Warrior” competition.

After judgment was entered on the $550,000 award (adding $6,187.50 in interest from 10/27/21 – the date when the judge finally determined that claimant’s injuries met the so-called threshold under Insurance law Section 5102), claimant appealed arguing that the interest rate accrual date should have been 9/26/18 (when summary judgment as to liability was determined). The difference was about $150,000 (about there years of interest on the $550,000 award at the rate of 9% per annum). In Sabine v. State of New York (4th Dept. 2023), though, the appellate court disagreed and the judgment was affirmed.

Inside Information:

  • The trial on damages was “virtual” in January 2021 having been delayed due to the COVID pandemic.

On December 8, 2001, Miguel Nesbitt was sent to a jail on Rikers Island in New York City to await trial on several felony charges. Earlier that year, while in Florida prison on federal marijuana charges, he tested positive for tuberculosis and was promptly placed on an antibiotic known as Isoniazid (“INH”).

Mr. Nesbitt’s INH treatment continued until April 5, 2002 when he was placed in solitary confinement for 55 days (for verbal abuse of the Rikers staff). Upon his release from solitary, he was sick and in pain. Mr. Nesbitt, only 23 years old, was suffering from severe liver disease and, on June 1st, he died from massive liver necrosis.

In the ensuing medial malpractice lawsuit against the City of New York, New York City Health and Hospitals Corp. and Prison Health Services, Inc., a Manhattan jury determined that the defendants caused Mr. Nesbitt’s death by failing to properly treat, test and monitor his liver condition after he was transferred to Riker’s Island.

The jury then awarded damages in the total sum of $22,000,000 as follows:

  • Pre-Death Physical Pain and Suffering – $8,000,000
  • Emotional Pain and Suffering – $8,000,000
  • Loss of Parental Guidance – $6,000,000 (20 years)

The trial judge agreed with the defendants that the damages awards were excessive and he ordered that damages be reduced to a total sum of $4,500,000 as follows:

  • Pre-Death Physical Pain and Suffering – $2,750,000
  • Emotional Pain and Suffering – $500,000
  • Loss of Parental Guidance – $1,250,000

Plaintiff appealed arguing that the trial judge’s reductions were improper; however, in Small v. City of New York (1st Dept. 2023), the appellate court affirmed each of the trial judge’s reductions. The defendants cross-appealed arguing, unsuccessfully, that “the entire award for emotional pain and suffering a/k/a fear of impending death” should have been set aside.

Here are the injury details:

  • Physical pain and suffering period was two to three weeks including malaise, not feeling well, jaundice, abdominal pain, vomiting blood and nausea while in solitary and then during his final couple of days while hospitalized he also had internal bleeding, severe pain, difficulty breathing and was writhing in bed in severe pain before he lapsed into a coma and died.
  • Emotional pain and suffering period was about two days – between the moment he realized that he was going to be gravely injured or die, and the moment of his death. His mother testified that on May 30th he said “Mommy, I’m going to die” at a time when he was hospitalized and in tremendous pain. The next day, he was unable to speak but tears were running down his eyes.
  • Loss of parental guidance damages were for Mr. Nesbitt’s daughter who was only two and a half years old when he died. There was evidence that Mr. Nesbitt loved and adored his daughter, provided for her financially to the best of his ability and intended to reunite with her.

Inside Information:

  • Plaintiff was represented by Rubert & Gross with both Soledad Rubert and her husband Richard Gross trying the case to an outstanding resolution. Tragically, Richard Gross died while this appeal was pending.
  • In their summations, defense counsel suggested that if the defendants were to be held liable then the jury should award $100,000 for pain and suffering and $250,000 for loss of parental guidance; plaintiff’s counsel suggested $3,000,000 for pain and suffering, $10,000,000 for fear of impending death (referred to on the verdict sheet as emotional pain and suffering) and $5,000,000 for loss of parental guidance.

On January 18, 2015, Toni Pecoraro slipped and fell on ice on the exterior stairs of the building where she was living in Brooklyn. She sued the building owner claiming she sustained extensive injuries in the fall and that the owner was at fault for not maintaining the premises in a safe condition.

There was conflicting evidence as to whether there was a storm in progress (in which case the owner could be free from fault) or whether the ice had been present for a long enough time that the owner should have cleared it away (in which case the owner could be at fault). The Kings County jury found that the fault should be apportioned – 65% to defendant and 35% to plaintiff.

The jury then awarded pre-apportionment pain and suffering damages in the sum of $35,100 ($34,000 past – four years, $1,100 future – one year).

Plaintiff, then 40 years old, appealed arguing that the damages award was inadequate; however, in Pecoraro v. Tribuzio (2d Dept. 2023), the award was affirmed.

Plaintiff claimed that her injuries from the fall included a right knee sprain and cervical, thoracic and lumbar strains. She was examined and released from the local hospital and then received physical therapy and other conservative treatment until an MRI of her right knee two months after the accident revealed a meniscal tear with respect to which she underwent arthroscopic surgery a month later.

As the appellate court noted, there was conflicting evidence at trial regarding plaintiff’s physical condition prior to the accident from which the jury could infer that much of plaintiff’s pain and suffering was attributable to injuries she sustained in other, prior accidents and to her preexisting degenerative conditions.

Ms. Pecoraro injured her right knee in another slip and fall incident in 2008 (and sustained various injuries in car accidents in 2010 and 2011). MRI reports in 2008 and 2010 revealed a pre-existing meniscal tear in her knee with respect to which she underwent right knee surgery in 2010.

On August 10, 2012, Audrey Appleyard underwent arthroscopic surgery to repair a torn meniscus in her knee. The surgery was performed properly and uneventfully and Ms. Appleyard, then 59 years old, was discharged home that evening. A week later, though, she presented to the emergency rom at Vassar Brothers Hospital in Poughkeepsie complaining of pain, redness and purulent drainage from her surgical site.

She was diagnosed with a post-operative infection (later determined to be Methicillin-resistant Staphylococcus aureus, known as MRSA), admitted and treated with Vancomycin, a powerful antibiotic with significant potential for toxicity.

Unfortunately, while still admitted, Ms. Appleyard developed kidney damage that she claimed was due to improper monitoring and failing to immediately act on abnormal bloodwork on August 26, 2012.

In the ensuing medical malpractice lawsuit against her infectious disease doctor and a physician’s assistant for her orthopedic surgeon, the jury upheld plaintiff’s claim finding that the physician’s assistant was responsible for the delayed treatment following receipt of the results of the blood tests he ordered.

The jury awarded plaintiff pain and suffering damages in the sum of $3,000,000 (all past – seven weeks).

In Appleyard v. Tigges (1st Dept. 2023), the appellate court affirmed the liability verdict but reduced the pain and suffering damages award to $500,000.

Here are the injury details:

  • acute kidney failure
  • dialysis – which required the insertion of a large catheter line into her neck – for three straight days
  • additional five days in hospital with blood transfusions
  • emotional shock, fear of permanent kidney damage and fear of imminent death

Defendants argued that the damages award was “utterly excessive” and “astounding” in view of the conceded facts that plaintiff’s kidney function resumed after the three dialysis sessions and that her kidney function returned to normal within three months of her hospital admission.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $3,000,000 and they did just that.
  • Before trial, plaintiff settled with Vassar Brothers Hospital and its corporate owner for the sum of $225,000.
  • Before the case was submitted to the jury, plaintiff withdrew her claim that she’d suffered permanent renal injury and the agreed-upon verdict sheet asked the jury to award pain and suffering damages, if any, only for the seven week period until she was advised her kidney function had returned to normal.

On April 30, 2016, Gabriel Suarez sustained a hip injury when he tripped and fell over a roadway speed bump while running on Roosevelt Avenue, a private road in Southampton, near where he’d recently bought a weekend home.

Mr. Suarez, then a 49 year old Manhattan resident, sued the adjoining homeowners claiming that they failed to maintain the road in front of their home in a safe manner.

The Manhattan jury determined that both parties were at fault for the accident – defendants 40% and plaintiff 60% and they assessed pain and suffering damages in the sum of $250,000 ($50,000 past – five years, $200,000 future – 24 years). They also added $37,500 to the award representing the stipulated cost of future surgery. The total $287,500 award to plaintiff was reduced to $115,000 after applying the percentages of comparative fault.

In a post-trial motion, plaintiff argued that the jurors were confused about the apportionment process and that they intended plaintiff should received $287,500 instead of only 40% of that amount. Plaintiff also argued that even the full $250,000 for pain and suffering damages would represent an inadequate amount. The trial judge granted the motion to the extent that he ordered a new trial on the issue of damages.

Defendants appealed and in Suarez v. Ades (1st Dept 2023), the appellate court reversed the trial judge’s order and directed that judgment be entered in conformity with the verdict sheet and stipulated medical expenses.

Plaintiff sustained a comminuted fracture of his acetabulum requiring open reduction internal fixation surgery with a plate, screws and bone grafting. His medical expert opined that the injury is permanent and he has a high probability of needing future hip replacement surgery.

The defendants’ experts opined that plaintiff’s injuries had resolved prior to trial and the jury was shown video and still photographs of plaintiff paddle boarding and windsurfing. The appellate judges noted that plaintiff admitted he was able to run and engage in whatever activities he wanted since 2016.

On June 27, 2018, Phyllis Streit injured her shoulder when she tripped over partially obstructed chicken wire connected to a downed fence while walking to work from her apartment complex in Lake Katrine in Ulster County.

Ms. Streit, then 61 years old, was attempting to climb over a broken section of fence in a grassy area behind the complex’s parking lot when her foot became caught and she fell. She sued the apartment complex owner claiming that the premises was unreasonably dangerous. The jurors agreed but they apportioned fault 70% to the defendant and 30% to the plaintiff.

The jury then assessed pain and suffering damages in the sum of $750,000 ($100,000 past – three years, $650,000 future – 25 years).

In Streit v. Katrine Apts. Assoc., Inc., (3d Dept. 2023), the appellate court affirmed both the liability and damages verdicts.

Here are the injury details:

  • fractured proximal humerus requiring open reduction internal fixation surgery with 10 screws
  • reverse shoulder arthroplasty
  • continuing and permanent pain, significant limitations of range of motion and extensive limitations as to many aspects of daily living (the injury is to plaintiff’s dominant arm)

Inside Information:

  • Plaintiff sustained an injury to her same shoulder as a result of a fall six months before the present matter but she had not sustained any fractures and did not undergo surgery and claimed she was asymptomatic shortly thereafter
  • In his summation, plaintiff’s counsel conceded that she was negligent but argued that defendant was much more at fault.

On June 18, 2015, Gwendolyn Williams was passenger in a vehicle operated by Patrick Ncho who ran a stop sign and was struck by another vehicle.

Ms. Williams, then 38 years old, sustained injuries and was transported to the local hospital with complaints of pain in her neck, back, right knee and right shoulder. She was treated for soft tissue injuries and released the same day.

In her ensuing Kings County lawsuit against both drivers, the jury rendered a verdict finding that Mr. Ncho was fully at fault. A damages only trial followed in which the jury awarded plaintiff pain and suffering damages in the sum of $100,000 ($25,000 past – four and a half years, $75,000 future -10 years).

The jury found that the so-called serious injury threshold (Insurance Law Section 5102) had been met as to plaintiff’s right knee injury because she was prevented from performing substantially all of the material acts that constituted her usual and customary activities for not less than 90 days during the 180 days immediately following the accident.

Normal Knee Anatomy

Defendant moved to set aside the verdict arguing that the evidence was insufficient to meet the threshold. The trial judge agreed and dismissed the case.

Plaintiff appealed. In Williams v. Ncho, (2d Dept. 2023) the appellate court reinstated the jury’s verdict.

Here are the injury details:

  • torn medial meniscus in knee requiring arthroscopic surgery on 9/10/15 (84 days post-accident) in which the meniscus and some irregularity on the kneecap were trimmed
  • unable to perform daily activities as to her three year old daughter (plaintiff was a stay-at-home single mother) including an inability to play with her, pick her up, or bathe her because of painful limitations
  • pre-operative use of anti-inflammatories, physical therapy and an injection
  • post-operative pain and loss of range of motion

Inside Information:

  • The verdict sheet specifically listed each of plaintiff’s claimed injuries and the jury rejected them all except for the right knee.
  • Plaintiff’s daughter was also injured in the accident and she settled her claim before the damages trial for $9,000.

On March 26, 2015, Salih Karasu, a 40 year old commercial roofing mechanic, was injured when he fell from a ladder about nine feet in the air, landing on and badly fracturing his ankle. He’d been working that day at Security Auto Sales in Amityville.

The Site of the Accident

Mr. Karasu sued the owners of the premises where he fell and, after discovery, he was granted summary judgment as to liability under Labor Law Section 240(1). The matter then proceeded to a trial on damages only.

The Nassau County jury awarded plaintiff pain and suffering damages in the sum of $2,000,000 ($1,000,000 past – seven years, $1,000,000 future – 10 years).

The jury also awarded future economic damages as follows:

  • Medical and Physical Therapy Expenses – $1,500,000 (14 years)
  • Lost Earnings – $892,424 (10 years)
  • Social Security Retirement benefits – $277,318 (14 years)

Together with $125,000 loss of services/consortium damages to plaintiff’s wife, the total jury award was $5,130,137.

Defendants argued that the evidence was insufficient to support the future economic damages awards. In Karasu v. Security Auto Sales, Inc. (Supreme Court, Nassau County, 2022), the trial judge agreed noting that the testimony as to future medical expenses and physical therapy was speculative at best and that plaintiff had already stopped seeing his doctor or going to physical therapy. Furthermore, plaintiff had returned to work earning more than he had before the accident.

The judge ordered future economic damages reductions in the sum of $2,357,106 as follows:

  • medical expenses and physical therapy, from $1,500,000 to $137,200
  • lost earnings, from $892,424 to $133,838 and
  • Social Security retirement benefits, from $277,318 to $41,598

Defendants also argued that the pain and suffering award was excessive but the judge upheld the $2,000,000 pain and suffering damages award.

Here are the injury details:

  • right ankle pilon fracture requiring external fixator for three weeks followed by open reduction internal fixation surgery with hardware insertion and, two years later, surgery to remove the hardware
  • unable to weight bear for nine months
  • unable to return to work for two years
  • continuing pain for which ankle fusion surgery was recommended

On May 25, 2016, Adedute Gbadehan, a 45 year old physician, was a passenger in a livery cab in the Bronx when it collided with an SUV driven by Jazmin Williams. Both vehicles proceeded into the intersection at 159th Street and Elton Avenue that was controlled by stop signs for each.

Dr. Gbadehan was taken by ambulance to a local hospital where he complained of a headache and right shoulder pain. He was treated and released that day.

Dr. Gbadehan sued both drivers and on 2/5/20 a Bronx jury rendered a verdict in his favor (a) finding that that Ms. Williams was totally at fault and (b) awarding pain and suffering damages in the sum of $400,000 ($100,000 past – four years, future- 29 years).

Although he initially complained of right shoulder pain, Dr. Gbadehan ultimately presented his case on damages focusing only on his left shoulder. After his ER visit, plaintiff sought no medical treatment for three months. Then, months later, he complained of left shoulder pain and consulted an orthopedic surgeon who found that plaintiff had sustained traumatic left shoulder injuries in the car crash including a tear of the rotator cuff and an extensive superior labral (SLAP) tear.

On 6/6/18, Plaintiff underwent arthroscopic surgery to repair the tears with the insertion of two screws. His treating surgeon testified that he still has pain and limited motion and may need future medical treatment including surgery to remove the screws.

The defendant moved to set aside the verdict for several reasons including her claim that the future pain and suffering damages award is excessive. The trial judge did not address that claim; instead, he ordered that the entire verdict should be set aside and a new trial held because testimony was elicited from defendant in which Geico was disclosed as her liability insurance carrier.

In Gbadehan v. Williams (1st Dept. 2022), the appellate court agreed with the plaintiff that the post-trial motion should have been denied noting that the reference to liability insurance was merely in passing and defense counsel failed to object at the time.

The appellate court declined to consider the argument that the future pain and suffering award is excessive. It’s been five months since the appellate court decision but the trial court has not yet ruled upon those parts of the post-trial motion, such as the excessiveness of damages claim, that the trial judge did not rule upon (because he vacated the entire verdict).

Inside Information:

  • During trial, plaintiff rejected a settlement offer of $65,000.
  • In his closing argument, plaintiff’s attorney asked the jury to award $8,000,000 for pain and suffering damages.
  • In January 2022, while this appeal was pending, a retrial on both liability and damages was held. The jury rendered a verdict for plaintiff in the sum of $20,000.

On October 3, 2014, James Blair was injured when the vehicle he was driving was struck by a city bus at an intersection in Queens. It was a heavy impact crash.

In the ensuing lawsuit against the other driver and the city transit authority, the parties disputed which one had the green light. The jury found against the bus driver and ruled that the defendants were fully at fault for causing the accident. Then, the jury awarded plaintiff pain and suffering damages in the sum of $1,140,000 ($300,000 past – three years, $840,000 future – 24 years).

The defendants appealed arguing that the liability verdict was contrary to the weight of the evidence and, alternatively, that the future pain and suffering damages award was excessive.

In Blair v. Coleman (2d Dept. 2022), the appellate court agreed with the defendants and (a) remanded the case back to the trial court for a new trial on the issue of liability and (b) ordered that if liability is found in the new trial, the award for future pain and suffering damages should be reduced to $500,000.

Here are the injury details:

  • Foot – fractures of first and second metatarsals with Lisfranc fracture dislocation requiring open reduction internal fixation surgery with six screws and a metal plate
  • Back – fracture of L-1 transverse process
  • Sternum, clavicle and rib fractures
  • Admitted to hospital for 12 days, then to a rehabilitation facility for 10 months

Plaintiff was 51 years old, 330 pounds and unemployed at the time of the accident. He claimed at trial that he can no longer walk without a limp and requires a cane. His medical expert testified that he will likely develop arthritis in his foot and may need further surgery (but there was no claim for future medical expenses).

The defense noted that plaintiff had many physical problems before the accident including asthma, bronchitis, sleep apnea, high blood pressure and arthritis in his knees. He had been taking pain medication for his knees, legs and back and admitted that before the accident he had all kinds of pain, some problems walking, sometimes used a cane and had gone to a hospital emergency room one year before the accident complaining of severe swelling in his knee.

Inside Information:

  • Plaintiff had demanded $750,000 to settle the case; defendants’ offer was $150,000.
  • In summations, plaintiff’s attorney asked the jury to award $300,000 for past pain and suffering and $480,000 for the future; defense counsel suggested a total of $100,000.