On September 5, 2018, Nidia Vasquez was injured while working as a laborer at a demolition and construction site in Buffalo when she was struck on her head and a shoulder by an unsecured ladder that had been standing against a wall.

Ms. Vasquez, then 57 years old, sued the site owner, the construction manager and one of the subcontractors on the site. Her motion for summary judgment under the Labor Law was granted and the matter proceeded to a trial on damages.

The Erie County jury awarded plaintiff pain and suffering damages in the sum of $1,500,000 ($250,000 past – three and a half years, $1,250,000 future – 15 years).

Defendants appealed arguing that the future pain and suffering award was excessive; however, in Vasquez v. Gilbane Building Co. (4th Dept. 2024), the court affirmed the pain and suffering award.

Here are the injury details:

  • herniated discs at C4-7 with radiculopathy requiring cervical discectomy and fusion surgery on 1/17/19
  • herniated disc at C3-4 that will within two years require discectomy and fusion surgery
  • labral tears in shoulder that have left plaintiff with significant pain, disability and range of motion losses; surgery has been prescribed

Plaintiff’s injuries left her in near constant pain, disabled as to several activities of daily living (cannot even drive a car), and unable to return to work. The jury awarded her damages for loss of earnings in the sum of $520,000 ($164,000 past, $356,000 future – five years). She was also awarded $302,000 for medical expenses ($41,000 past, $261,000 future – five years).

Inside Information:

  • Plaintiff had not yet undergone shoulder surgery only because her body mass index was too high (she was five feet five inches tall and about 200 pounds) and she has to lose weight first.
  • The trial judge advised the jury that plaintiff’s life expectancy was 22 years but the jury awarded future pain and suffering damages only for 15 years.

On November 27, 2018, at 3 a.m., then 41 year old William Lee, fell in his bathroom at home in Elmsford. His wife Anna heard the thud, ran to the bathroom and found her husband convulsing on the floor. She called 911. When the ambulance arrived, EMS suspected a stroke and Mr. Lee was rushed to Westchester Medical Center (a certified national stroke center).

Mr. Lee was diagnosed with a severe stroke and a CT scan angiography was performed that showed a basilar artery occlusion that was stopping blood from getting to the brain. Tragically, though, the doctors at the hospital that morning were inexperienced (there was no board certified radiologist) and they misinterpreted the scan resulting in a three and a half hour delayed diagnosis of the occlusion.

As a result of the delay, Mr. Lee became and remains unable to care for himself, has profound cognitive deficits, does almost nothing without prompts to guide him, has dementia-like symptoms with no short-term memory, and spends his days mostly sleeping, eating and watching television all while fully aware of the fact that he has a brain injury, cannot do the things he used to do, is frustrated and sometimes destructive and has young children who are afraid of him.

Mr. and Mrs. Lee sued the hospital and the doctors claiming that although he came into the hospital with a stroke, their negligence was a substantial factor in depriving him of a substantial chance for a better outcome and resulted in his sustaining permanent and massive brain injuries and needing lifetime residential facility care.

In Lee v. Westchester County Healthcare Corp. (Supreme Court Westchester County, Index #50914/2020), the jury upheld the plaintiffs’ claims and returned a verdict on November 30, 2023, awarding pain and suffering damages in the sum of $51,000,000 ($9,375,000 past – five years, $41,625,000 future – 33.3 years).

The jury also awarded damages (a) to Mrs. Lee for past medical expenses and household services she incurred for her husband in the sum of $550,000, (b) to Mrs. Lee for the loss of her husband’s services and society in the sum of $51,000,000 ($9,375,000 past – five years, $41,625,000 future – 33.3 years). and (c) to Mr. Lee for his anticipated future medical costs in the sum of about $18,000,000 (mainly for residential facility care at about $500,000 a year for 33.3 years).

While the jury was deliberating, plaintiffs and the hospital entered into so-called high-low agreement that provided for the hospital to pay (a) $10,000,000 in the event of a defense verdict or a damages award of $10,000,000 or less, or (b) the amount awarded by the jury if between $10,000,000 and $30,000,000 or (c) $30,000,0000 or if the jury award were more than $30,000,000.

Inside Information:

  • Plaintiffs’ lead counsel, Ben Rubinowitz, widely regarded as one of best trial lawyers in New York, brilliantly focused his closing argument on Mr. Lee’s awareness of his massive injuries and his inability to resume being a husband to his wife and a father to his young children. He asked the jurors if they could think of anything worse in the world than knowing that one has children and a wife but that he cannot care for them.
  • Prior to the verdict, one of the defendant doctors, a neurologist, agreed to settle for $1,900,000 to resolve the claim against her that once the blockage was properly diagnosed she prescribed the wrong blood thinner medication.
  • The damages award in this case is the largest medical malpractice verdict in the history of Westchester County.

On September 27, 2019, Miguel Ferrer and his wife, residents of Idaho, were on vacation in Manhattan and decided to take a night tour on top of a sightseeing double decker tour bus.

Mr. Ferrer was seated on the right side of the bus with his right arm on the railing that went around the open and uncovered upper deck when it passed close to and struck a portable traffic message board placed by the city on the east side of First Avenue between 38th and 39th Streets.

Mr. Ferrer’s arm was badly fractured and lacerated and he sued the tour bus company, its driver and the City of New York.

During pre-trial discovery in 2021, plaintiff’s attorneys obtained a criminal background check on the bus driver that disclosed that before he was hired by the tour bus company, he had various criminal convictions including possession of a weapon and reckless endangerment as well as open charges with respect to driving a vehicle.

Plaintiff sought leave to amend his complaint to add a claim for punitive damages arguing that the tour operator failed to conduct a criminal history background check of the driver who they knew was not qualified to operate a tour bus when they hired him.

Plaintiff’s motion was granted; however, on appeal in Ferrer v. Go N.Y. Tours Inc. (1st Dept. 2023). the court held that the motion should have been denied. The appellate court stated that the new allegations (a) adequately set forth conduct that may constitute a willful and wanton disregard for the interests of others (supporting a claim of gross negligence) but (b) the proposed allegations do not support a punitive damages award.

The case is on the trial calendar and there is a pending motion for summary judgment by the city arguing that the placement of the message board was a governmental function involving the exercise of discretion and as such plaintiff had to (but did not) allege and prove he was owed a special duty.

Inside Information:

  • Defendants argued that the punitive damages motion should have been denied because both New York Corrections Law Article 23-A and New York City’s Fair Chance Act generally forbid an employer (a) from denying employment because of a prior conviction (unless there is a direct relationship between the offense and the employment) or (b) requesting a criminal background check from a job candidate (unless and until the employer extends a conditional offer of employment). The appellate court did not address the application of these laws.

On March 12, 2012, Saikou Sinera, then 29 years old, was injured in a construction related accident when he fell from the fourth step of a ladder while painting inside an apartment at 301 East 47th Street in Manhattan.

Mr. Sinera sued the property owner and building manager under the Labor Law and was granted summary judgment. In a damages only trial, the Bronx County jury awarded pain and suffering damages in the sum of $3,000,000 ($1,000,000 past – 10 years, $2,000,000 future – 37 years).

The defendants successfully argued that the damages award was excessive because it improperly included plaintiff’s claim that he suffered from complex regional pain syndrome (“CRPS” -also known as reflex sympathy dystrophy or RSD).

The trial judge reduced the pain and suffering award to $700,000 ($250,000 past, $450,000 future) and the reduction to $700,000 was affirmed on appeal in Sinera v. Embassy House Eat LLC (1st Dept. 2024).

Here are the injury details:

  • Wrist – distal and ulnar comminuted fracture to non-dominant wrist, treated with a cast and physical therapy for six months and which resulted in a malunion
  • Shoulder – acromioclavicular joint (“AC”) separation, with rotator cuff syndrome and biceps tendinitis treated with physical therapy and a cortisone injection

There was extensive medical testimony at trial especially related to plaintiff’s CRPS claim. Four of his five doctors along with all four of the defense experts found no evidence of CRPS.

The jury also awarded plaintiff future medical expenses in the sum of $2,500,000 (37 years); however, that award was reduced to $10,000 because it was based upon the jury’s implicit finding that plaintiff had CRPS which finding the courts rejected.

Inside Information:

  • Four days before the date of the appellate court decision, counsel for both sides delivered a letter to the court requesting that any decision on the appeal be delayed 30 days to allow for settlement discussions.
  • Plaintiff had no medical treatment for his injuries for the six years preceding trial. He claimed he could not afford treatment.
  • The jury awarded plaintiff future loss of earnings in the sum of $1,000,000 (21 years); however, plaintiff conceded that the award should be reduced to $302,353, the sum calculated by plaintiff’s expert.

On April 7, 2011, James Romano, previously a lively, mostly ambulatory and self-sufficient 84 year old, was admitted to a rehabilitation facility in Staten Island to recover from a fall at home three days earlier in which he fractured a thoracic vertebrae. It was anticipated he’d recover in about two weeks. He was placed in a wheelchair to facilitate his recovery but on April 14, 2011 he fell out of the wheelchair and sustained a hip fracture.

Tragically, Mr. Romano deteriorated and was never able to return home. He died at the rehabilitation facility three years later on March 22 , 2014.

Mr. Romano’s widow sued the facility and the Richmond County jury determined that the facility was negligent in failing to protect Mr. Romano from falling. The jury then awarded pain and suffering damages in the sum of $6,000,000 for three years of pain and suffering.

The trial judge ordered that the award be reduced to $500,000. In Romano v. Clove Lakes Health Care and Rehabilitation, Inc. (2d Dept. 2024), the appellate court ruled that the trial judge’s reduction was too steep and determined that the reduction should have been to $1,000,000.

Here are the injury details:

  • Displaced hip (femoral neck) fracture requiring emergent partial hip replacement (hemiarthroplasty) surgery
  • Six months of grueling physical therapy after which he could not walk and was wheelchair bound permanently
  • Severe and permanent pain

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award $4,000,000.
  • The defense argued that Mr. Romano recovered from his hip fracture in two months, he had no ongoing pain related to the fracture and that his inability to walk was related to his Parkinson’s and dementia.

On August 2, 2018, a state trooper was responding to a 911 call in the Town of Ulster when he drove his police car into the other lane of traffic and collided head-on with a car driven in the opposite lane of traffic by Kathryn Bradley-Chernis.

Ms. Bradley-Chernis, then 44 years old, claimed she sustained several injuries and she sued the trooper. In a bench trial, the Ulster County judge found that the trooper drove with reckless disregard for the safety of others and the matter then proceeded to a bench trial on damages.

The judge heard testimony from plaintiff and her treating physicians and he rendered a verdict awarding pain and suffering damages in the sum of $832,000 ($400,000 past – three and a half years, $432,000 future – 36 years).

Defendant appealed arguing that the award is excessive; however, the award was affirmed in Bradley-Chernis v. Zalocki (3d Dept. 2023).

Here are the injury details:

  • Rotator cuff and labral tears in shoulder requiring arthroscopic surgery to repair and leaving her with chronic pain and limited range of motion
  • Bulging disc and strains with chronic neck and back pain and limited ranges of motion
  • Post-traumatic stress disorder (mental distress and anxiety)

On October 13, 2013, Jesús Moctezuma was injured when he was driving his bicycle on St. Nicholas Avenue in Manhattan and the driver of a double-parked car opened his driver’s side door as Mr. Moctezuma was passing by. The car door knocked him to the ground; seconds later the rear wheels of a city bus ran along part of his leg.

Mr. Moctezuma, then 37 years old, sued both the man who opened his car door and the bus driver. After a jury returned a verdict finding both defendants at fault, plaintiff was awarded pain and suffering damages in the sum of $1,550,000 ($500,000 past -five years, $1,050,000 future – 34 years).

Defendants appealed arguing that the pain and suffering award was excessive; however, in Moctezuma v. New York City Transit Authority (1st Dept. 2023), the judgment entered upon the jury’s verdict has been affirmed.

Here are the injury details:

  • avulsion injury of the soleus muscle of lower left leg with seven inch laceration requiring irrigation and debridement surgery and eight day hospital admission
  • comminuted facture of left foot first metatarsal and cuneiform fractures

Plaintiff claimed that he suffers from permanent scars, muscle atrophy, residual nerve damage and pain in his lower leg leaving him with an antalgic gait. His expert physiatrist testified that (a) because of his limp, plaintiff developed plica, a buildup of tissue that interferes with the proper functioning of the knee such that he needs left knee surgery and (b) plaintiff should have his first toe reconstructed.

The defense noted that plaintiff returned to work two years after the accident as a food preparer in a restaurant and the defense experts (an orthopedic surgeon and a neurologist) testified that plaintiff made a good recovery, has no permanent damage and does not need surgery.

Inside Information:

  • The apportionment of liability was 65% to the car operator and 35% to the bus driver.
  • The jury awarded plaintiff $41,600 for past loss of earnings but that award was set aside because it was based only upon plaintiff’s testimony with no documentary evidence such as a W-2 form.
  • Plaintiff had demanded $750,000 to settle before trial against an offer of $250,000. In his summation, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $4,100,000.

On March 1, 2010, Raul Marquez sustained injuries to his knees and back when he fell from an A-frame ladder in a construction incident while painting crown molding in a common hallway of the 62 unit cooperative apartment building at 171 West 79th Street in Manhattan.

The Site of the Accident

Mr. Marquez, then 33 years old, was employed as a commercial painter by MQ Restoration Corp. He sued the building owner, 171 Tenants Corp., under the Labor Law, claiming that the owner was liable for his injuries because the ladder was unsecured and defective.

After determining that the defendant was at fault, the jury awarded plaintiff damages in the total sum of $6,147,211, as follows:

  • pain and suffering in the sum of $2,049,900 ($683,300 past – 11 years, $1,366,600 future – 20 years),
  • medical expenses in the sum of $3,847,565 ($357,266 past, $3,490,299 future – 33 years), and
  • lost earnings in the sum of $249,746 ($149,277 past, $100,469 future – six years)

The defendant appealed claiming that various rulings by the trial judge resulted in an unfair trial and, alternatively, (a) that the pain and suffering award included in large part damages for injuries not connected to the accident and (b) the future medical expense award was not based upon legally sufficient evidence or proven with reasonable certainty.

In Marquez v. 171 Tenants Corp.. (1st Dept. 2023), the judgment entered upon the jury verdict has been affirmed.

Here are the injury details:

  • Right Knee – torn meniscus requiring two arthroscopic surgeries
  • Left Knee – torn meniscus requiring two arthroscopic surgeries
  • Back – herniated discs at L4-5 and L5-S1 requiring a facetectomy and a laminotomy

Plaintiff’s treating surgeons testified that he will need bilateral total knee replacements in the future as well as lumbar fusion surgery.

The defense argued, unsuccessfully, that the only injury plaintiff sustained in this accident was to his right knee and therefore the damages awards were excessive and without basis.

Inside Information:

  • Plaintiff’s future medical expenses award, based upon his expert’s life care plan and testimony, included $1,262,480 for home health aide costs, $376,697 for physical therapy, $970,210 for knee surgeries and $2,236,681 for back surgeries. The defense did not present its own life care plan expert.
  • Plaintiff’s eminent attorneys, Nicholas E. Tzaneteas and Stephen H. Frankel, demanded $5,000,000 to settle before the verdict against an offer of $375,000.

On April 1, 2016, Jamie Hawkins went to her dermatologist at New York Dermatology & Mohs Surgery Group in Commack to check out a skin lesion on her head. She was seen by a physician’s assistant who found nothing suspicious and advised her it was nothing to be concerned about.

On May 19, 2017, after nagging concerns about the lesion, Ms. Hawkins consulted a new dermatologist who took a biopsy and discovered that she had a malignant melanoma on her scalp.

Ms. Hawkins, then 30 years old, sued her former dermatology group and the physician’s assistant claiming that they were negligent when, on April 1, 2016, they failed to clinically identify a likely melanoma on her scalp.

Plaintiff claimed that defendants’ malpractice resulted in a 13 month delay in diagnosis that allowed the cancer to grow from Stage 1 to Stage 2. Instead of a 98% chance of a cure at 10 years, plaintiff was left with an 88% chance.

The Suffolk County jury agreed with the plaintiff and determined that defendants’ malpractice caused the delayed diagnosis and a diminished chance of a better outcome. The jury then awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($1,000,000 past – five and a half years, $300,000 future – 45 years).

Defendants challenged both the liability verdict and the amount of damages by way of a post-trial motion. They argued that the damages award was excessive because the only past damages consisted of a slightly increased area of resection, and a node biopsy and that the diminution in the rate of staying cancer free was “slight.” In Hawkins v. New York Dermatology & Mohs Surgery Group, PLLC (Supreme Court, Suffolk County, 2023), though, the trial judge denied the motion in all respects.

Inside Information:

  • The jury also awarded loss of consortium damages in the sum of $100,000 to plaintiff’s husband.
  • Most delayed diagnosis of cancer cases deal with a progression to Stage 4 which is when the cancer has spread to other parts of the body, is often incurable and the prognosis is very poor. In this case, plaintiff’s eminent counsel, Michael G. Glass, pointed out to the jury that those like Ms. Hawkins with melanoma and a reduced loss of chance from 98% to 88% have a Sword of Damocles hanging over them because that loss of chance meant that in 10 years, 12% of them would die from the cancer.

On February 1, 2013, Marie Petit was a passenger in a city bus that crashed into another vehicle on Ralph Avenue in Brooklyn.

Ms. Petit, then a 55 year old home health aide, sued both drivers claiming she sustained spinal injuries.

A Kings County jury (a) determined that the accident was wholly the fault of the bus driver and (b) awarded plaintiff pain and suffering damages in the sum of $2,100,000 ($600,000 past – six years, $1,500,000 future – 25 years). The trial judge reduced the award to $1,800,000 ($600,000 past, $1,200,000 future) and in Petit v. Archer (2d Dept. 2023), the appellate court affirmed the reduction.

Here are injury details:

  • Herniated disc at C4-5 with radiculopathy requiring cervical diskectomy and fusion surgery with insertion of a plate and screws
  • Continuing neck and back pain with 50% loss of range of motion in her neck and 40% in her back
  • Unable to return to work or participate in activities previously performed including cooking, doing laundry and church activities
  • Will need additional cervical surgery in 10 years

The defense experts (an orthopedic surgeon and a radiologist) testified that plaintiff had significant degeneration in her spine that pre-existed the accident, there was no sign of any fresh, ruptured or acute traumatic discs and the surgery was not related to the accident.

The jury also awarded plaintiff damages for loss of earnings in the sum of $875,000 ($350,000 past – six years, $525,000 future – nine years.; however, this award was reduced to $541,000 ($145,000 past, $396,000 future) based upon her tax returns.

Finally, the jury also awarded plaintiff damages for future medical expenses in the sum of $1,800,000 (25 years); however, this award was reduced to $700,000 based upon the testimony of plaintiff’s experts as to the cost of various items such as pain medication, doctor visits, epidural injections and physical therapy treatment.