On June 1, 2012, Deborah Ormond was injured when she tripped over a raised and uneven piece of sidewalk next to a metal subway grate in front of 390 Lafayette Avenue in Brooklyn.

Ms. Ormond successfully sued the city transit authority claiming that defendant was negligent in the maintenance of the sidewalk. The jury awarded plaintiff pain and suffering damages in the sum of $2,900,000 ($1,300,000 past – seven years, $1,600,000 future – 10 years).

The defendant appealed arguing that (a) the trial judge improperly instructed the jury as to the application of a city code applicable to the differences in elevation between adjacent sidewalk flags (as opposed to a grating), (b) the jury should have apportioned some fault to plaintiff and (c) the damages award was excessive.

In Ormond v. MTA/New York City Transit Authority (2d Dept. 2022), the liability verdict was affirmed but the appellate court agreed that the damages award was excessive and the panel ordered that the pain and suffering award should be reduced to $1,700,000 ($1,000,000 past, $700,000 future).

The decision does not include any information as to the plaintiff’s injuries. Here are the injury details:

  • torn meniscus in both knees with constant pain
  • herniated cervical and lumbar discs in spine with daily pain
  • unable to resume recreational sports activities and needs cane to go up and down the 25 stairs to her second floor apartment

Plaintiff, 54 years old at the time of her accident, underwent extensive treatment to her knees and both parts of her spine that consisted of physical therapy, chiropractic treatment, five epidural steroid injections and pain management. Her orthopedic surgeon concluded that she would require bilateral total knee replacement surgeries. As of the trial date, though, plaintiff had not undergone any surgery at all.

The defense orthopedic expert opined that plaintiff’s two meniscal tears were not related to her fall and that her spinal complaints were related to degeneration not trauma. In arguing for a significant reduction of the jury’s award, defendant highlighted both the fact that plaintiff never had surgery  (“if the pain had been bad enough, a surgeon would have performed the surgery”) and that plaintiff missed only one day of work because of her injuries.

The jury also awarded plaintiff $160,000 for future medical expenses which is the amount her expert physician estimated for the total knee replacement surgeries. The defendant did not challenge this award.

Inside Information:

  • While the appellate court ordered a significant reduction of the jury’s pain and suffering award, the final amount – $1,700,000 – is at the high end for a case like this with no surgery. The firm of Burns & Harris has once again achieved an outstanding result.

On July 13, 2011, Bohdan Vitenko was swimming laps at the city owned and operated Lyons swimming pool in Staten Island. He and his friends were training by swimming underwater as much of the length of the Olympic-sized pool as they could without breathing, immediately followed by attempting to remain underwater as long as they could while holding their breath. During the exercise, Bohdan lost consciousness in three and a half feet of water and died.

Lyons Pool

Bohdan’s sole distributee, his mother Malvina Vitenko, sued the city for wrongful death claiming that the city was negligent in failing to have an adequate number of lifeguards or provide adequate training to them. The Richmond County jury found that the city was negligent in not providing training to lifeguards with regard to this tragic incident of shallow water blackout (which occurs if a swimmer repeatedly hyperventilates and then holds his breath). The jury apportioned liability 70% to the city and 30% to Bohdan.

The jury found that plaintiff sustained pecuniary damages in the sum of $ 1,490,000 ($440,000 past – six years, $1,050,000 future – 15 years). The trial judge ruled that the awards were excessive and reduced the total to $518,000 ($308,000 past, $210,000 future). The judge also reduced the future period of years from 15 to three.

In Vitenko v. City of New York (2d Dept. 2022), the liability verdict has been affirmed but the appellate court determined that the trial judge’s damages reduction went too far and the panel held that the proper pecuniary damages award is $708,000 ($308,000 past, $400,000 future).

Under New York’s Estates, Powers and Trusts Law 5-4.3, damages may be awarded for wrongful death to compensate the decedent’s distributees for the “pecuniary injuries resulting from the decedent’s death.” To prevail, there must be proof that the distributee(s) had a reasonable expectation of support (such as financial payments or household assistance) from the decedent and therefore a pecuniary loss.

Here, plaintiff’s mother claimed that her 21 year old son had worked part-time in the family woodworking business and that he helped in the house especially with raising and taking care of his nine year old brother. The defense argued that the evidence of pecuniary loss was not only insufficient but entirely speculative noting that Bohdan was a full-time college student, had worked in the family business only on limited occasions and there was no substantial proof that his absence from the business caused any financial loss.

Inside Information:

  • One of Bohdan’s friends, Jonathan Proce, also drowned that day due to shallow water blackout. His case was settled for $600,000.
  • The only persons who testified in the damages phase of the trial were Bohdan’s mother and his step-father (who ran the family business).
  • There was no award for pre-death conscious pain and suffering; plaintiff conceded that Bohdan had passed out and was unconscious when he drowned

 

 

On December 25, 2015 at about 2 a.m., Raul Matos and Stephen Hiraldo were involved in a fight outside their apartment building at 161 West 108th Street in Manhattan. Mr. Matos, then 36 years old, claimed that Mr. Hiraldo punched him in the back of his head causing him to fall down stairs and sustain injuries. Mr. Hiraldo claimed he acted in self-defense.

In the ensuing lawsuit against Mr. Hiraldo, the jury determined that both parties were equally at fault for the incident and they awarded pain and suffering damages (before apportionment) in the sum of $250,000 ($125,000 past –  six years, $125,000 future – 35 years).

In Matos v. Hiraldo (1st Dept. 2022), the judgment has been affirmed.

Here are the injury details:

  • bilateral jaw fractures (left mandible and right subcondylar)
  • open reduction internal fixation surgery to place plate and screws in mandible
  • second procedure four months later to unwire and remove hardware
  • continuing numbness and pain

Inside Information:

  • Defendant was charged with misdemeanor assault; he pled guilty to disorderly conduct, a simple violation.
  • In his summation, plaintiff’s attorney asked the jury to award damages in the sum of $500,000.

 

On June 4, 2013, New York City Taxi and Limousine Inspector Laurence Deguilme activated his vehicle’s emergency lights pulled over  a taxicab on Third Avenue between 41st and 42nd Streets in Manhattan. After speaking to the taxicab’s operator and in the process of opening the driver’s side door of his TLC vehicle in order to enter and write citations,  Mr. Deguilme, then 41 years old, was struck by a city bus and injured.

In Mr. Deguilme’s ensuing lawsuit against the bus driver and owner (the transit authority), the jury determined that the driver was at fault for the accident and they awarded pain and suffering damages in the sum of $1,055,000 ($740,000 past – six years, $315,000 future – 10 years) plus past lost earnings in the sum of $260,000.

In Deguilme v. New York City Transit Authority (1st Dept. 2022), the judgment entered upon the verdict (reduced by 20% due to plaintiff’s comparative negligence) has been affirmed.

Here are the injury details:

Ankle –

  • significant bimalleolar fracture of ankle with displaced transverse fractures of the distal fibula and medial malleolus
  • open reduction internal fixation surgery of ankle with insertion of a plate, rod and screws
  • second ankle surgery to remove hardware and repair tearing of tendon
  • continuing and permanent  pain, and loss of range of motion
  • unable to play tennis, snowboard or jog

Hand –

  • fractures of ulnar styloid, ring finger and hamate, triquetrum and lunate bones
  • treated with splint and therapy
  • continuing and chronic swelling and pain in wrist with permanent loss of range of motion and significantly diminished grip strength

About five months after the accident, plaintiff went back to a part-time job as a restaurant floor manager; however, he was unable to return to his more strenuous job with the TLC.

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $1,750,000. He made no claim for future loss of earnings.
  • In her summation, defendants’ attorney focused on liability arguing (unsuccessfully) that plaintiff was fully at fault. She made no suggestion as to an amount for pain and suffering damages.

In March 2009, Rakefet Grullon was admitted to a hospital in Manhasset following the sudden onset of symptoms, including shortness of breath, fatigue and swelling of the neck. A CT scan revealed a very large mass, and a biopsy of the mass confirmed the diagnosis of lymphoma.

Ms. Grullon, then 33 years old, was treated with the administration of  chemotherapy via a mediport which was implanted in her chest wall and accessed  with a  needle in order to deliver the  medications. Shortly after beginning the administration of Adriamycin, the needle became displaced and the toxic drug was infused into tissue surrounding the mediport, causing injuries.

In Ms. Grullon’s  ensuing lawsuit against the doctor who supervised the procedure (and his practice), the Queens County jury determined on 6/23/17 that the doctor departed from good and accepted medical practice by not sending plaintiff to interventional radiology to confirm that the needle was adequately positioned. The jury awarded plaintiff pain and suffering damages in the sum of $800,000 (all past – eight years).

The defendants argued in a post-trial motion that the jury verdict on liability was against the weight of the evidence and a judgment should be entered in their favor dismissing the complaint. The motion was denied. They also argued that the pain and suffering award was excessive and should be reduced. That aspect of their motion was granted and the trial judge ordered a reduction of the pain and suffering damages to $200,000.

The defendants appealed but in Grullon v. Thoracic Surgical, P.C. (2d Dept. 2022), the appellate court affirmed the trial judge’s order.

Here are the injury details:

  • chemical burn resulting in necrosis of 3 inch diameter area of fatty tissue on chest
  • purple-red discoloration of skin
  • emotional discomfort
  • pain requiring Neurontin

Plaintiff testified that the affected area was very painful during the first year with gradual improvement since then with less pain each day.

Plaintiff claimed she has limitations in strength and range of motion in her right arm but since the date of her chemotherapy treatment, she never had any treatment for her right arm at all and she offered no medical testimony as to any range of motion or strength limitations in her arm.

Inside Information:

  • Plaintiff did not assert a claim for future pain and suffering damages.
  • This was the second trial of the same case; there was a mistrial in 2014 (for reasons not relevant to this appeal).

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On June 6, 2016, at about 7:30 a.m., Barry Schneider was operating a motorized scooter at the intersection of two roads in Great Neck when he was struck by a turning car that failed to yield the right of way. Mr. Schneider, a 69 year-old accountant, was seriously injured and died four days later on June 10th.

Mr. Schneider’s widow sued both the other driver and the town (which was responsible for placing the stop line at the intersection and for maintaining the vegetation in the surrounding area). The Nassau County jury determined that both parties were at fault – the other driver, for violating the decedent’s right of way and the town, for allowing the vegetation to overgrow and block drivers’ views of the intersection.

The jury awarded damages for pre-death pain and suffering in the sum of $2,000,000 and the award was affirmed on appeal in Schneider v. Hanasab (2d Dept. 2022).

Here are the injury details:

  • emergency transport to hospital where he was intubated and administered morphine for pain
  • fractures of clavicle, scapula and nine ribs; hemothorax
  • serious internal bleeding requiring multiple blood transfusions and placement of chest tube
  • extensive bruising and hematoma
  • fatal episode of respiratory distress due to blunt force trauma

The defendants argued that the pain and suffering award was excessive because Mr. Schneider’s pain was controlled with medication. Plaintiff’s medical expert, though, testified that Mr. Schneider was alert and conscious throughout his hospitalization, and endured difficulty breathing and extensive pain and suffering that was never fully regulated. The hospital record reflected that multiple times a day Mr. Schneider’s pain was six, seven and ten on a ten point scale (ten being the most severe pain).

Inside Information:

  • The jury also awarded $426,000 for seven and a half years of future loss of earnings, and $165,000 for medical expenses. These items were not challenged on appeal.

On May 8, 2018, Irina Rifman was bathing in her apartment in Syracuse when she was scalded by extremely hot water flowing from her bathtub faucet. Ms. Rifman, then 78 years old, was unable to turn the water off due to difficulty operating the faucet handle and was unable to immediately exit the tub due to a lack of handicap assistive devices.

In her ensuing lawsuit against the owner of the apartment complex, plaintiff argued that the defendant should be held liable for plaintiff’s injuries because the hot water tank servicing plaintiff’s apartment was set too high.

In a non-jury trial, the judge ruled that defendant’s negligence caused the accident. The Onondoga County  judge assessed pain and suffering damages  in the sum of $632,000 ($450,000 past – two years and seven months, $182,000 future – 9.1 years).

The defendant appealed claiming that (a) the judge should have dismissed the case because plaintiff had not proved prior notice of any issue with the hot water temperature and (b) the future pain and suffering award was excessive.

In Spivak-Bobko v. Gregory Arms, LLC (4th Dept. 2022),  liability against the defendant was affirmed but the future pain and suffering award was reduced to $100,000.

Here are the injury details:

  • second degree burns to buttocks, anal and vaginal areas
  • admitted to hospital burn unit for three weeks, then to a rehabilitation center for a month
  • continuing pain and discomfort in burned areas especially when sitting or trying to sleep
  • permanent dry skin and itching sensation requiring frequent lifetime moisturizing

The defense argued that the future pain and suffering award was not only excessive but also speculative in view of the fact that plaintiff’s treating doctor testified that her burn wounds had fully healed in July 2018 and she had not treated for her injuries since then.

Inside Information:

  • The case was tried virtually by video conferencing and without a jury (as the defendant did not request one).
  • Plaintiff was a Russian speaker who required an interpreter at trial.
  • The cases referred to by the appellate court all deal with catastrophic paralysis injuries and have nothing to do with burn injuries; it is unclear why the court cited them as a basis to reduce the future pain and suffering award.

On July 3, 2012, a New Rochelle police officer drove his official vehicle into the rear of another vehicle. Edward Carter, a passenger in the other vehicle, sued both drivers for his personal injuries. A Westchester jury ruled that both drivers were at fault.

In a separate damages only trial, the jury determined that plaintiff sustained both permanent consequential and significant limitations and the jury awarded Mr. Carter pain and suffering damages in the sum of $5,000 (all past – seven years) plus past medical expenses of $10,000.. Mr. Carter, then 50 years old, claimed that the jury awards were inadequate and he appealed.

In Carter v. City of New Rochelle (2d Dept. 2022), the appellate court ruled that the pain and suffering award should be increased to $180,000 ($80,000 past, $100,000 future) and that the medical expenses award should be increased to $140,000 ($40,000 past, $100,000 future)

Here are the injury details:

  • treated on day of accident at local hospital complaining of right shoulder and right side pain; given Motrin and released that day
  • three months treatment with chiropractor
  • arthroscopic surgery six months after the accident to repair rotator cuff and labral tears in shoulder

After his shoulder surgery, plaintiff recovered well and conceded he had no shoulder problems anymore (though at trial he claimed his pain returned and he had significantly reduced range of motion).

Plaintiff’s most significant clams at trial were related to his spine.  After a diagnosis of herniated discs and treatment with epidural steroid injections, plaintiff underwent cervical fusion surgery in February 2015 and lumbar fusion surgery four months after that. At trial, plaintiff walked with the aid of a cane, remained under the care of a spinal pain management physician and claimed he was greatly restricted in terms of activities of daily living and would need substantial future medical care.

The defense argued that plaintiff had a host of pre-existing conditions (including chronic degenerative disc disease secondary to morbid obesity, diabetic neuropathy and arthritis) and that the accident did not cause spinal pain or the need for spinal surgery. The trial judge agreed stating that plaintiff had been disabled prior to the accident.

inside Information:

  • The accident was recorded on the police officer’s dash cam and the defense argued it was clear this was a minor fender-bender.
  • Plaintiff had a shoulder injury from weight lifting seven years before this accident but testified he had no prior shoulder injury.
  • In closing arguments, plaintiff’s counsel asked the jury to award plaintiff pain and suffering damages in the sum of $5,000,000 while defense counsel argued that plaintiff’s injuries did not meet the statutory threshold under CPLR 5102 and therefore the jury should award no damages at all.

On August 12, 2008, Howard Wieder entered the vestibule at the Home Depot store in Flushing when he encountered Rosario and Jorge Berg who were arguing with and cursing at a store employee. Ms. Berg then accosted Mr. Wieder, both verbally and physically. Mr. Wieder responded verbally but out of nowhere he was then struck on the back of his head by Mr. Berg and pummeled by Ms. Berg. Wieder then struck Mr. Berg with a punch and ran away.

Home Depot in Flushing

A store security guard caught up with Mr. Wieder a block away and forcefully held him there until police arrived and arrested him. Wieder was handcuffed, put into a patrol car, taken to the police station, charged with assault and harassment and spent a day and night in jail before he was released. A month later, all charges against Wieder were dropped.

Wieder initially commenced suit in state court against Home Depot, the security guard and the Bergs as well as the City of New York and several police officers. The defendants removed the case to federal court where it was dismissed with leave to file state law claims against Home Depot and the security guard. The new case was brought in Queens but administratively transferred to Kings County.

After a trial on the issue of liability, the jury awarded plaintiff pain and suffering damages in the sum of $1,800,000 (all past – 10 years) on the causes of action alleging battery and false imprisonment.

Both parties appealed. In Wieder v. Home Depot U.S.A., Inc. (2d Dept. 2022), the appeals court affirmed the liability verdict but ordered that the damages award be reduced to $500,000.

At the time of his arrest, plaintiff was employed as a court attorney for a Supreme Court justice in Queens County and was pursuing a nomination to the judiciary. He testified to his pain and anguish and the loss of his reputation arising from his arrest and he adduced evidence that he’d been on a short list for the nomination.

Mr. Wieder never got the nomination, allegedly because the arrest and charges, even though dismissed, were a deal killer virtually assuring that he would never become  a judge. Furthermore, following the arrest, Mr. Wieder found that invitations to Bar events became scarcer and both friends and acquaintances would now avoid him. Colleagues would scatter as he approached.

The appellate court found that Mr. Wieder was uniquely vulnerable to reputational harm but, without explanation, also found that the jury award should be slashed to $500,000.

Inside Information:

  • The Bergs ultimately defaulted and the case went to trial solely against Home Depot and the security guard.
  • Defense counsel told the jury that should award no more than $100,000 for plaintiff’s pain and suffering. Plaintiff’s counsel asked for $2,000,000.
  • Plaintiff testified that he would have earned $1,400,000 more over his work life as a judge than he would have as a court attorney but the trial judge declined to allow his lost earnings claim to be considered by the jury in assessing damages. The defense argued that the lost earnings claim was properly dismissed as speculative.

 

On December 12, 2014, Phil Wynter, then 43 years old, was walking to work crossing Merrick Boulevard in Queens when a bus ran over his foot causing massive injuries.

Mr. Wynter sued the bus company and its driver. Just before trial, they conceded liability and the matter proceeded to address damages only.

The jury awarded plaintiff pain and suffering damages in the sum of $5,500,000 ($3,000,000 past – 3.75 years, $2,500,000 future – 30 years).

Defendants argued that the damages award is excessive; however, in Wynter v. Transdev Services, Inc., the appellate court affirmed the award.

Here are the injury details:

  • left foot crush and degloving injury
  • amputation of big toe, multiple fractures and deformities of other four toes
  • five surgeries
  • 29 days in hospital
  • continuing pain every day
  • unable to walk without a cane or crutches

The jury also awarded plaintiff $600,000 for future medical expenses over a 30 year period. Defendants argued that this award was speculative in part and the appellate court agreed, ruling that it should be reduced to $450,000.

Inside Information:

  • At the time of the accident, Mr. Wynter was living with his mother in order to help her because she was sick with cancer.
  • The parties agreed that plaintiff should be awarded $203,000 for past medical expenses.