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New York Injury Cases Blog

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

Verdict Affirmed in Mall Parking Lot Death Case

By John Hochfelder on Posted in Wrongful Death

On June 29, 2005, Concetta Russo-Carriero, a 56 year old paralegal, was abducted, stabbed twice with a knife and murdered in the parking garage of a White Plains shopping mall.

The murder took place on the 7th floor of this parking lot at the Galleria Mall.

The perpetrator, 43 year old Phillip Grant, was a convicted rapist who’d already spent 25 years in prison. He specifically selected the garage to commit his crime because of its lax security and spent two hours there lurking around and looking for someone whose car he could hijack and drive to Connecticut.

In 2007, Ms. Russo-Carriero’s executors commenced a wrongful death lawsuit against the City of White Plains (the owner and operator of the garage).

Following the trial in 2014, the Westchester County jurors determined that the city was at fault finding that (a) the incident was foreseeable, (b) the city failed to provide minimal precautionary measures to secure the garage, and, (c) the city’s negligence was a substantial factor in causing the death.

The jury also found that the criminal conduct of the murderer (who was caught quickly, confessed, convicted and sent to jail for 25 years to life) was not a substantial factor in causing Ms. Russo-Carriero’s death. Here is the jury charge in which the trial judge explained to the jurors the foreseeability of criminal conduct, lack of security and apportionment of fault issues.

Pain and suffering damages, as set forth in the verdict sheet, were assessed as follows:

  • from the moment Ms. Russo-Carriero realized she was going to be gravely injured or die and the moment she sustained a physical injury – $1,000,000
  • from the moment of physical injury to the moment of death – $500,000

The defendant appealed arguing that the case should have been dismissed on the basis of governmental immunity because its implementation of security measures at the garage involved the discretionary allocation of police resources. Furthermore, the city argued that it did not breach its duty to provide adequate security. Finally, the city argued that the jury was wrong in failing to assign any portion of the fault to the perpetrator of the attack (who was not named as a defendant in the civil suit) and that there was no evidentiary basis for the award of $500,000 for conscious pain and suffering (for the period after the stabbing).

In Granata v. City of White Plains (2d Dept. 2018), the appellate court rejected all of defendant’s arguments except the one regarding apportionment of fault (which it modified – assigning 35% to the murderer, reducing defendant’s share to 65%).

In affirming the $500,000 award for the pain and suffering Ms. Russo-Carriero sustained after she was stabbed, the court stated that there was enough circumstantial evidence that she experienced some level of cognitive awareness after the stabbing. Here are the physical injury details:

  • a witness heard terrified screams
  • decedent’s belongings were strewn about indicating a struggle after she was stabbed
  • there was blood on the ground far enough away from the location of the stabbing indicating that she was stabbed in one place in the garage and then engaged in a struggle before ultimately dying in a different location in the garage
  • a passerby found Ms. Russo-Carriero on the ground bleeding and he saw her eyes moving
  • a police officer testified that Ms. Carriero had a pulse and was breathing as she lay dying on the garage floor and that her lips moved in response to his attempt to question her about what happened

The pre-injury pain and suffering award of $1,000,000 was not challenged as there was evidence (from the perpetrator’s confession) that Ms. Russo-Carreiro was slowly walked at knife-point for about 260 feet in the garage and that she initially knocked the knife away prior to being stabbed.

Inside Information:

  • The jury also awarded wrongful death damages to decedent’s husband ($155,000) and her two children ($310,000).
  • The murderer confessed to police that he planned that day to kill a white person and he was the first person to be tried and convicted for murder as a hate crime in Westchester County.
  • In 2007, New York enacted the Sex Offender Management and Treatment Act.

Infant’s Medical Malpractice Pain and Suffering Award Slashed

By John Hochfelder on Posted in Medical Malpractice

On February 23, 2009, at Mercy Medical Center in Rockville Centre, Nylah Hollingsworth was born prematurely at 26 1/2 weeks of gestation.

Two weeks later,Nylah was diagnosed with necrotizing enterocolitis (NEC), an acute infection of the intestine sometimes seen in premature infants.

Nylah’s mother sued the hospital claiming that it negligently caused NEC. On September 30, 2014, a Queens County jury returned a verdict finding that the hospital was negligent by failing to obtain a surgical consult or transfer Nylah to another hospital upon diagnosing her with NEC. Then, the jury awarded pain and suffering damages in the sum of $5,000,000 ($1,000,000 past – five and a half years, $4,000,0000 future – 75 years).

In Hollingsworth v. Mercy Medical Center (2d Dept. 2018), the appellate court affirmed the liability finding against the hospital and the trial judge’s reduction of the pain and suffering award to $575,000 ($75,000 past, $500,000 future).

As set forth in the appellate court decision, the jury found that the defendant was responsible only for the delay in obtaining a surgical consult and transferring Nylah to another hospital, not for causing the NEC itself.

Here are the injury and course of treatment details:

  • Born weighing only 2 pounds 3 ounces, Nylah was stabilized in the delivery room and transferred to the neonatal intensive care unit where she was provided antibiotics, fluids and respiratory support
  • Started on total parental nutrition the day after birth, then breast feeding by March 6th
  • Upon a significant increase in abdominal girth and spewing formula and polyvisol, Nylah was diagnosed with Stage II NEC on March 9th and a surgical abdomen on March 10th
  • Grossly bloody stool on March 10th; intubated and placed on mechanical ventilator
  • Lung collapse on March 12th; bowel sounds absent
  • Abdominal girth continues to rise and abdomen remains distended through March 15th when transferred to Long Island Jewish Medical Center (LIJ) for definitive treatment (where she remained hospitalized for 166 days, until August 27th
  • Surgery on March 16th to place Penrose drain in abdomen to drain ascites
  • Surgery on May 5th – exploratory laparotomy and ileocolic resection in which approximately 14 inches of bowel was removed and an ileostomy was created (that was subsequently removed on September 2nd)
  • Transferred from LIJ to Columbia Presbyterian Medical Center in Manhattan where she remained until September 21st
  • Continuing short bowel syndrome secondary to NEC with frequent diarrhea, loose stools and frequent stomach pain

 

Jury Verdict Declining to Award Any Pain and Suffering Damages Upheld in Car Accident Case

By John Hochfelder on Posted in Back Injuries, Neck Injuries

On December 17, 2011, Ebony Stanford was a rear seat passenger in a taxicab that was involved in a crash with another vehicle in Manhattan on the FDR Drive near the 53rd Street exit.

Ms. Stanford, then a 33 year old security officer at Harlem Hospital residing in the Bronx, sued both drivers seeking an award of pain and suffering damages for injuries to her cervical and lumbar spine.

In 2015, plaintiff’s motion for summary judgment was granted on the issue of serious injury based upon the so-called 90/180 category under Insurance Law Section 5102. Accordingly, at the trial in 2016, the jury was instructed that “the court has already determined that plaintiff sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.”

The Bronx jury returned a verdict finding the two drivers negligent, apportioning their respective shares of fault and awarding plaintiff $14,400 for her past loss of earnings.

The jury awarded nothing at all for plaintiff’s pain and suffering, a determination that was upheld on appeal in Stanford v. Rideway Corp. (1st Dept. 2018).

As indicated in the appellate court decision, the trial judge found that “plaintiff’s evidence was not compelling” and the jury found that plaintiff did not sustain either (a) a permanent consequential limitation of use of a body organ or member, or (b) a significant limitation of use of a body function or system (two of the serious injury criteria under the statute).

Both plaintiff’s pre-trial motion for summary judgment as to the 90/180 category and the jury’s award of damages for plaintiff’s wage loss were based on plaintiff’s claim that she was entirely unable to work for about four and a half months immediately following the accident.

Here are the injury details:

  • immediate back and neck pain from whiplash
  • ambulance transport to hospital on stretcher with neck brace; treated and released to home after five hours
  • bulging discs at L4-5 and L5-S1
  • three spinal manipulations under anesthesia
  • chiropractic and physical therapy treatment at an outpatient rehabilitation facility for the next four months
  • continuing pain leaving plaintiff unable to lift her six year old daughter, carry heavy groceries or walk fast

The defendants argued that the disc bulges were minimal and degenerative and that there was no evidence of any traumatic injury to the cervical spine. Furthermore, the defendants’ expert orthopedic surgeon (a) diagnosed plaintiff with morbid obesity (she was 5 feet 4 inches tall and weighed 230 pounds at the time) and (b) examined plaintiff and opined that her neck and back were normal and she had no related disabilities.

Plaintiff’s treating orthopedic surgeon opined before trial that she had significant range of motion limitations and permanent lumbar and cervical spine injuries; however, her chiropractor was the only health care provider who testified at trial for her and the jury rejected plaintiff’s position that her injuries met the significant limitation and permanent consequential limitation categories under the statute.

Clearly, this was a case of battling experts and the jurors chose the one they found credible.

 

Appellate Court Addresses Liability and Damages in Slip and Fall Ankle Injury Case

By John Hochfelder on Posted in Ankle Injuries

On February 9, 2004 at about 9:30 a.m., Lillian Robinson parked her car across the street from her home on Van Buren Street in Brooklyn and was walking around the back of her car so she could cross the street. After taking one or two steps off the curb, she fell and was injured.

In her ensuing lawsuit, Ms. Robinson, then 64 years old, claimed that she fell because of a pothole in which snow and ice had accumulated and that the City of New York was negligent because it dug a hole that created the pothole years earlier and left it in a dangerous condition. The jurors agreed but they also found plaintiff substantially at fault (for not paying proper attention)  and they apportioned liability 80% to plaintiff and 20% to defendant. They also awarded pain and suffering damages (before apportionment) in the sum of $150,000 (all past – seven and a half years).

Plaintiff appealed arguing that that the liability apportionment was against the weight of the evidence and that the damages award was inadequate.

In Robinson v. Brooklyn Union Gas Co. (2d Dept. 2018), the appellate court modified the liability split, assigning 55% to plaintiff and 45% to defendant. The court declined to increase the damages award, concluding that the jury’s verdict awarding zero damages for future pain and suffering was not contrary to the weight of the credible evidence.

Here are the injury details:

  • comminuted displaced fractures of the tibia and fibula bones in left ankle
  • open reduction internal fixation surgery with insertion of intramedullary nail and four screws
  • confined to hospital for one month, then transferred to a long term facility for four more months confined to wheelchair

Plaintiff’s expert orthopedic surgeon testified that her fractures had healed but that she (a) has permanent swelling, weakness, pain and tenderness, (b) has permanent loss of range of motion and (c) walks with a limp. Defendant’s expert countered that plaintiff’s bones had healed well and were solid and she has no limp or difficulty walking or standing.

Inside Information:

  • Upon her return home from the rehabilitation center, Ms. Robinson returned to her job as a minister but claimed at trial that due to her injury and pain she had to lean or sit to preach. The defense, though, introduced photographs and videos of plaintiff preaching in 2010 and 2011, in which she was standing and walking about and argued that the discrepancy between this evidence and plaintiff’s trial testimony asserting the contrary provided a strong basis for the jury’s declining to credit plaintiff’s claims of ongoing pain or disability.
  • Liability was sharply contested with plaintiff and a witness testifying that a year or two before the accident they saw workers digging holes in the street where she fell (that plaintiff claimed were then improperly or inadequately filled with asphalt); whereas the defendant claimed that plaintiff jaywalked across the middle of the block on a street with known depressions and ice but failed to look down as she did so.

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.