On August 26, 2012, Robert Finney was riding his motorcycle on a state road in Schuyler County. At the same time, Christopher Morton was driving his pickup truck two car lengths behind at the posted speed limit of 55 miles per hour. Tragically, Mr. Finney sustained fatal injuries when his motorcycle was struck by Morton’s vehicle.

A 1991 Harley, similar to the one in this case.

In the ensuing non-jury trial in Dutchess County, the judge ruled that fault for the crash should be apportioned 95% to the defendant and 5% to the decedent.

Plaintiff (Finney’s wife as administrator of his estate) claimed significant economic damages based upon the unrefuted testimony of an economist with expertise in the evaluation of pecuniary losses in wrongful death cases. The judge agreed with the economist and found that plaintiff sustained economic losses (before apportionment) in the sum of $1,552,667 as follows: $1,065,670 for past and future lost earnings, $87,239 for lost benefits and $369,758 for loss of household services.

Defendant moved to set aside the verdict claiming that he was not at all responsible for the crash and, in any event,  that plaintiff failed to submit sufficient evidence at trial  (such as testimony from Mrs. Finney as to what household services had been performed by him before her husband died) to support an award for loss of household services. After the trial judge denied the motion, defendant appealed.

In Finney v. Morton (2d Dept. 2019), the appellate court ruled that:

  1. the decedent’s share of liability should be increased from 5% to 15% and
  2. the household services award should be set aside because there was insufficient trial evidence to support that claim

The dispute over the household services award concerned the type of evidence that is required to support such a claim as a matter of law.

  • Plaintiff argued that the testimony of her economist was sufficient because he discussed the nature of the services that members in a two person home typically provide that are a benefit to the people in the home and are then measured this in terms of what studies have shown for average households of certain characteristics and estimates of what the value of their services in the home are.
  • Defendant argued, successfully, that there was no evidence at trial of actual expenditures incurred in replacing whatever household services decedent may have performed in the past, or of any anticipated future expenditures with regard to such services.

Plaintiff is seeking leave to appeal to the Court of Appeals. She argues that to establish a loss of household services claim in a wrongful death case, there is no precedent that requires, in addition to the expert testimony adduced in this case, evidence of the actual services a decedent performed. We will follow this case and report any future developments.

Inside Information:

  • Plaintiff was 46 years old at the time of his death. He was a mechanic who performed repair and maintenance on diesel trucks and equipment. He earned about $60,000 per year and was survived only by his wife (they had no children).
  • Plaintiff died instantly at the scene; there was no pre-death pain and suffering claim.

 

In August 2011, Noelle Feldman began treatment with William Knack, a clinical psychologist in Chappaqua. Ms. Feldman, then 53 years old, had endured lifelong experiences with sexual abusiveness. On January 10, 2013, Feldman claimed that she was raped and assaulted during a psychotherapy and counseling session.

Knack denied the allegations but a Westchester County jury found that Knack had committed rape by engaging in sexual intercourse with Ms. Knack by forcible compulsion and awarded her pain and suffering damages in the sum of $450,000 ($250,000 past – four years, $200,000 future – 20 years). The jury also awarded punitive damages in the sum of $500,000.

In Feldman v. Knack (2d Dept. 2019), the awards have all been affirmed.

Plaintiff testified at length concerning the significant emotional and psychological pain and suffering she endured as a result of her being raped by her psychologist. For example, she stated:

“I feel like not just my body was raped but my soul was raped. I feel dismantled, in that everything that makes you feel like you’re human is gone. I don’t feel alive. My life has never been easy but going to someone for help and having that person betray me in such a brutal way. I have recurrent nightmares. Horrible nightmares. I’m afraid of everything.”

Ms. Feldman further testified that she’d relapsed into alcohol abuse, doesn’t trust anyone anymore, doesn’t go out ever, totally isolated herself and doesn’t cook or bake anymore.

Ms. Feldman described her lifelong experiences with abusiveness which included being raped by her father each week until she left home when she was eight and a half years old, being sexually abused by her brother and her father’s shooting to death of her brother. Defendant argued that plaintiff’s emotional and psychological pain and suffering should be viewed in the context of this extensive prior history.

Inside Information:

  • Plaintiff introduced into evidence recordings of two separate telephone conversations she initiated with the defendant (in the presence of a police detective with the New Castle Police Department). In the second call, on 7/17/14, Ms. Feldman repeatedly confronted Knack about his having hurt, targeted and taken advantage of her and “having sex” in his office. In response, Knack repeatedly apologized stating he was “wrong”, that he “developed feelings” for her and that he acted in a way he should not have acted.
  • Plaintiff neither sought medical treatment after she was raped nor reported the incident to the police until a year later in February 2014. Furthermore, she continued to treat with defendant after she was raped, returning to him a week later and continuing to treat with him until the Fall of 2013.
  • Defendant asserted that plaintiff in fact assaulted him (albeit on a different date – 9/23/13). The trial judge noted, though, that the defendant’s overall credibility was “powerfully undermined” when the jury found it implausible that Knack would be unable to prevent or stop plaintiff’s purported attack on him (in which he claimed she pinned him down while at the same time undoing his belt, unbuttoning his waistband and pulling down his underwear).
  • In 2017, Knack filed a bankruptcy proceeding under Chapter 11 of the U.S. Bankruptcy Code. It is still pending.
  • Noelle Feldman died on April 18, 2019.

On August 7, 2014, Angel Diaz was driving his motorcycle on North Avenue in New Rochelle when he collided with a car driving in the same direction and was thrown from his bike to the roadway. Diaz sustained a serious ankle injury and sued the other driver claiming she was fully at fault for the accident.

A Westchester County jury determined that both parties caused the crash – plaintiff 55%, defendant 45% – and awarded (before apportionment) pain and suffering damages in the sum of $230,000 ($162,500 past – three years, $67,500 future – 40 years).

Plaintiff’s post-trial motion arguing that the damages award is inadequate was denied by the presiding judge whose opinion was affirmed by the appellate court in Diaz v. Dadabo (2d Dept. 2019).

Here are the injury details:

  • distal superior articular fibula fracture dislocation four inches above the ankle joint
  • ruptured deltoid and syndesmotic ligaments between tibia and fibula
  • open reduction internal fixation surgery to implant a six inch metal plate and seven screws
  • post-operative cerebral spinal fluid leak causing severe headaches until epidural blood patch procedure eight days later to extract blood from arm and inject into cervical spine to clot the blood
  • ankle to knee cast for eight months followed by a cam boot for about three months and a few months of physical therapy
  • continued complaints of pain, unable to run or take long walks

The defendant argued that plaintiff made an excellent recovery – he resumed motorcycle riding and working out within seven months, he stopped all medical treatment for his injuries about 13 months after the accident and both his surgeon and the defense expert agreed that it is unlikely plaintiff will need any further surgery.

Inside Information:

  • Plaintiff, 30 years old at the time of the accident, had served three tours of duty in Iraq as an infantryman with the U.S. Army.
  • In closing arguments, plaintiff’s counsel asked the jury to award damages in the sum of $1,200,000. Defense counsel suggested $150,000 as the “maximun fair value” for plaintiff’s past pain and suffering and nothing at all for the future.

From 1953 to 1973, Frank Gondar was in the construction business and was exposed to asbestos from insulation used in connection with boilers manufactured and distributed by Burnham Corporation.

An Old Burnham Boiler

In January 2015, when he was 85 years old, Mr. Gondar was diagnosed with mesothelioma which, two months later in his lawsuit against Burnham and others, he claimed was caused by asbestos exposure the dangers of which should have been disclosed to him. The Manhattan jury agreed that Burnham was at fault and awarded pain and suffering damages in the sum of $17,000,000 ($12,000,000 past – 17 months, $10,000,000 future – one month).

The trial judge ordered a reduction of the damages award to $7,000,000 ($5,000,000 past, $2,000,000 future).

In Ford v. A.O. Smith Water Prods. (1st Dept. 2019), the appellate court approved $5,000,000 for past pain and suffering but reduced the award for future pain and suffering to $500,000. The total pain and suffering award has thus been modified downward to $5,500,000.

Here are the injury details:

  • initial symptoms – shortness of breath, wheezing and productive cough
  • collapsed lung one month after initial symptoms requiring thoracentesis procedure to remove two liters of bloody fluid from his pleural cavity
  • diagnosed in mid-February 2015 with inoperable advanced mesothelioma
  • pleurodesis (surgery to adhere the pleural membranes together to prevent the continuing accumulation of fluid)

  • appetite loss, general weakness, severe anxiety and depression
  • 11 rounds of chemotherapy with side effects including severe hearing loss, extreme fatigue,  and chest pain, all of which got progressively worse as chemotherapy continued every three weeks
  • several rounds of immunotherapy administered directly through his chest
  • within a year, reduced to using a wheelchair and completely unable to care for himself

Plaintiff’s counsel claimed that Mr. Gondar’s pain and suffering (including loss of enjoyment of life) was “unparalleled in its scope, magnitude, frequency and extremity for persons in his age range” in large part because Mr. Gondar had, up to the point of his diagnosis (when he was 85 years old), led an extremely active lifestyle that included jet skiing and boating on a daily basis in the summer, snow skiing including team racing and serving as an instructor in the winter, avid scuba diving, motorcycle riding three times a week, hiking, camping and swimming.

Defense counsel argued that the verdict was “so large and unfounded in the evidence that it could only have been a result of passion, prejudice, sympathy, or the consideration or some other improper element of damages.”

Inside Information:

  • In summations, defense counsel suggested that $2,000,000 would be reasonable for damages; plaintiff’s counsel stated that Mr. Gondar’s largest element of damages was psychological – anxiety about the imminent end of his life – and asked for $12,000,000 for the past plus $6,000,000 for the future.
  • Mr. Gondar was too incapacitated to testify at trial. His pre-trial depositions were used instead of his live testimony.
  • Mr. Gondar died on 9/18/16; his girlfriend Noreen Ford continued the lawsuit as his executor.

On April 16, 2013 Leroy Coleman and his wife Sharese Coleman were rear seat passengers in an Access-a-Ride livery vehicle that collided with another moving vehicle on the Nassau Expressway in Queens.

Both sustained knee injuries and sued the owners and drivers of the two vehicles. Summary judgment was granted to the plaintiffs and the matter proceeded to a damages only trial in Kings County (where plaintiffs resided).

On April 19, 2017 the jury returned a $30,000 verdict for each of the plaintiffs as follows (a) for Mr. Coleman, then 47 years old, all past – four years and (b) for Ms. Coleman, then 36 years old, $10,000 past – four years and $20,000 future – 40 years.  After the trial judge denied plaintiffs’ motion to increase the damages awards, the plaintiffs appealed.

In Coleman v. Karimov (2d Dept. 2019), the awards were increased as follows: (a) for Mr. Coleman, to $75,000 (all past) and (b) for Ms. Coleman, to $200,000 ($50,000 past, $150,000 future).

Here are the injury details as to Mr. Coleman:

  • out of work for six months immediately following the accident
  • torn meniscus in knee
  • arthroscopic surgery 8/3/16

The jury found that Mr. Coleman did not sustain a serious injury under either the permanent consequential limitation of use or the significance limitation of use categories under Insurance Law Section 5102 but that his injury did meet the threshold under the 90/180-day category. Therefore, the appellate court held that the jury acted reasonably in declining to award any future pain and suffering damages. The court did, though, increase the damages award for past pain and suffering.

Mr. Coleman testified at trial that he’d never before injured or had complaints or treatment with respect to his knee but on cross-examination he was confronted with his pre-trial deposition in which he admitted that he had complained about his knee to doctors at the hospital where he worked (for 30 years in waste management), received injections and was told to lose weight. The defense harped on these facts in summation and portrayed Mr. Coleman as a liar. Plaintiffs’ counsel attributed the testimony to his client’s nervousness and confusion on the stand.

Here are the injury details as to Ms. Coleman:

  • torn meniscus in knee, torn cartilage and broken off loose body
  • arthroscopic surgery 7/20/16

The jury found that Ms. Coleman sustained a serious injury under the permanent consequential limitation of use category, but the court held that her damages award was inadequate and increased it from $30,000 to $200,000.

No one reported the accident to the police on the day it occurred and no ambulance was summoned to the scene. Neither plaintiff sought medical treatment until the day after the accident and neither followed their surgeon’s advice to undergo physical therapy after their surgeries. Defense counsel argued in his summation that plaintiffs’ non-compliance contributed to if not resulted in any residual complaints they had as to their injuries (e.g., unable to bend knees, unable to sit for long periods and unable to kneel at church).

Inside Information:

  • Mr. Coleman weighed over 300 pounds (at five feet, eleven inches) and Ms. Coleman, at four feet eleven inches, weighted over 275 ponds, factors the defense argued contributed greatly to any claimed injuries.
  • The only witnesses at the trial were the plaintiffs and their treating orthopedic surgeon Dov Berkowitz, M.D..; there was no medical expert testimony for the defense.

On October 21, 2013, Cynthia Queen was in Orchard Park crossing the street in a crosswalk when she was struck by a left-turning vehicle driven by Shirley Kogut. Ms. Queen, then 43 years old, was knocked to the ground but able to get up on her own. She felt no pain and declined medical attention. She was driven to her nearby home where she rested.

At home, as the shock of her accident wore off, Ms. Queen’s leg became very painful so that evening a friend drove her to the local hospital where x-rays disclosed a tibial plateau fracture.

In her ensuing lawsuit, the Erie County jury determined that both parties bore responsibility for the accident (plaintiff 70%, defendant 30%) and the jury assessed pain and suffering damages in the sum of $150,000 ($25,000 past – three  years, $125,000 future). The trial judge agreed with plaintiff that the award was inadequate and ordered an increase to $250,000 ($125,000 past, $125,000 future).

On appeal in Queen v. Kogut (4th Dept. 2019), the court affirmed the liability verdict and the $250,000 damages award.

Here are the injury details:

  • comminuted Type II tibial plateau fracture requiring open reduction internal fixation surgery with a titanium plate and screws
  • fibula fracture
  • under-surface tear of the meniscus (fixed during the tibial plateau repair surgery)
  • 10 weeks non-weight-bearing
  • five months of physical therapy

Ms. Queen returned to work as a cashier and salesperson at Old Navy on April 8, 2014 with some pain after being on her feet for several hours “but for the most part,” she was “all right.”

The defendant argued that plaintiff made an excellent recovery and that the jury’s award was adequate; whereas plaintiff contended that the injury was severe, she continued to have pain, will need surgery to remove the hardware, has post-traumatic arthritis in her knee joint and will ultimately need a total knee replacement. The defense orthopedic expert disagreed with each of the plaintiff’s contentions as to future surgeries and the presence of arthritis.

Inside Information:

  • On the eve of closing arguments, defense counsel extended a settlement offer of $225,000. It was withdrawn before summations were concluded the next day (at which time plaintiff’s counsel stated he would accept it).

 

 

In May 2008, after receiving a tip that a 44 year old woman had attempted to engage a child in sexual activity, New York State Police troopers executed a search warrant for evidence related to child pornography at the Albany home the woman shared with her 24 year old son Robert Partridge. During the execution of the warrant, Mr. Partridge was arrested on drug-related charges for the criminal possession of steroids. The charges were dismissed in November 2008.

Although Mr. Partridge was never suspected of or charged with any sexual crime against a child, on June 17, 2008, his photograph was displayed and disseminated during a press conference conducted by the State Police educating parents and children about online sexual predators. The conference was covered by five local television stations and was also made available for online streaming on various websites.

Partridge filed a claim against the state seeking damages for defamation for being wrongfully branded a sexual predator and on October 4, 2013, the Court of Claims found that the defendant was 100% liable for the defamation of Mr. Partridge. On June 9, 2017, at the conclusion of the damages trial, the same judge awarded claimant damages in the sum of $300,000.

Both sides appealed and in Partridge v. State of New York (3rd Dept. 2019), both the liability verdict and the damages award have been affirmed.

Seven years before the press conference, Mr. Partridge was involved in a car crash that left his girlfriend dead and him in jail for two years. Also, due to the crash, he sustained a traumatic brain injury (“TBI”) that made it difficult for him to process information or keep things in his working memory to deal with them at a normal rate of speed. He underwent mental health treatment (that continued up to and following the time of his defamation) and, as late as November 2007, was treating for severe anger, anxiety and paranoia.

After being defamed, Mr. Partridge no longer held a job (and did not seek new employment), broke up with his girlfriend, cut himself off from his friends, lost his self confidence, became socially withdrawn and suffered from new and increased paranoia and psychotic depression, constantly fearful that if he tried to date or applied for a job, people would look him up online and conclude he is a pedophile.

The defendant argued that the trial proof was insufficient to allow the judge to determine to what extent claimant’s complaints were attributable to the 2008 defamation as opposed to his longstanding and well documented TBI. Claimant conceded he’d sustained a significant injury in 2001 and had undergone treatment for it but he noted that thereafter he’d been able to maintain gainful full time employment (as a leader of hiking expeditions for children and an employment trainer for people with disabilities), had significant social relationships with friends and a romantic relationship with a woman.

Testimony was adduced from claimant’s treating psychiatrist and social worker as well as from his friends that, as a result of being falsely identified by the State Police as a sexual predator (a) he was humiliated, shamed and in great despair and (b) his preexisting mental health deficits were aggravated and exacerbated.

Inside Information:

  • Claimant was unable to testify at the damages trial due to severe anxiety; instead, his examinations before trial were received in evidence  in lieu of his live testimony.
  • Defendant did not adduce any expert testimony.
  • This was a long and hard fought case with the State represented by its Attorney General and plaintiff by one of the capitol region’s most respected firms, LaFave, Wein & Frament.

 

 

On May 31, 2013, at about 4 p.m., Jose Cabrera was a passenger on a motorcycle being driven by his friend Elido Gonzalez. They had each worked that day as contractors renovating residential apartments and were on their way to pick up checks for their wages when they collided with a New York City Transit Authority bus on Westchester Avenue near 156th Street in the Bronx.

As a result of the impact, the motorcycle was propelled into one of the concrete columns supporting the train tracks elevated above the roadway.

Mr. Cabrera, then 59 years old, sustained several severe injuries and sued Mr. Gonzalez and the transit authority bus driver, claiming that each contributed to the accident. A Bronx jury agreed and apportioned liability 70% to the motorcycle driver and 30% to the bus driver.

The jury also awarded pain and suffering damages in the sum of $4,500,000 ($1,500,000 past – three and a half years, $3,000,000 future – 10 years).

In Cabrera v. New York City Transit Authority (1st Dept. 2019), both the liability and pain and suffering verdicts have been affirmed.

Here are the injury details:

  • Hip – comminuted displaced fracture of acetabulum causing it to split into two pieces and requiring irrigation and debridement surgery
  • Pelvis – comminuted fracture of superior pubic ramus
  • Femur – dislocation requiring closed reduction

  • Ulna – mid-shaft fracture requiring open reduction internal fixation surgery with insertion of plate and screws; lacks full supination of forearm
  • Scapula – fracture
  • Ribs – fractures of five ribs
  • Neck – activation of arthritis at C4-7
  • Hospitalized from 5/31/13-6/21/13 and from 7/8/13-7/18/13; inpatient rehabilitation treatment until 8/12/13
  • Confined to wheelchair for six months

Mr. Cabrera testified that he has constant hip and neck pain, takes narcotic pain medication every day, continues with physical therapy and requires crutches to walk anywhere. He said that he was always out of the house before the accident exercising, walking, socializing and dancing but that since then he’s always in the house, can’t dance and feels like “a piece of a dead person.”

Plaintiff’s orthopedic surgery expert testified that Mr. Cabrera will in the future need both hip replacement and cervical fusion surgeries due to the injuries caused by the accident trauma. Defendant’s expert disagreed; he opined that neither future surgery would be needed and, in any event, if neck surgery is undergone it will be related only to pre-existing degenerative disease and not at all to the accident.

Inside Information:

  • Although the motorcycle driver Mr. Gonzalez was deposed, he was uninsured, later defaulted and the sole defendants at trial were the bus driver and the transit authority.
  • There was no claim for loss of earnings.
  • In summations, defense counsel argued that the motorcycle driver was fully at fault; plaintiff’s counsel, Daniel C. Minc, successfully argued that both drivers bore some responsibility for the crash and he suggested an award of at least $900,000 for past pain and suffering and $500,000 to $2,000,000 for the future.

On November 16, 2011, Lush Dacaj slipped on concrete stairs going down to the subway at Rockefeller Center at Sixth Avenue and West 47th Street in Manhattan.

Dacaj slipped on the tread of the third-highest step and fell to the bottom of the stairs sustaining serious neck injuries.

In his ensuing lawsuit against the subway station operator, the New York City Transit Authority, Dacaj (74 years old at trial) claimed that he slipped and fell because the stairway tread was loose and downwardly sloped. The New York County jury agreed and apportioned liability 86% to the defendant and 14% to plaintiff.

The jury then awarded plaintiff pain and suffering damages in the sum of $2,200,000 ($1,200,000 past – four and a half years, $1,000,000 future – 10 years). They also awarded damages for  lost earnings in the sum of $490,000 ($240,000 past, $250,000 future – five and a half  years) and medical expenses in the sum of $605,582 ($350,000 past, $255,582 future – 10 years).

Defendant’s post-trial motion to set aside the verdict and order a new trial on liability and damages was denied. On appeal, though, in Dacaj v. New York City Transit Authority  (1st Dept. 2019), the pain and suffering award was found to be excessive and it was reduced to $1,675,000 ($1,000,000 past, $675,000 future); the other damages awards were affirmed.

Here are the injury details:

  • Transported by ambulance to the local hospital where he complained of neck pain and was diagnosed with a traumatic dislocation of the C5-6 vertebrae in his spine, known as a jumped facet; treated with cervical collar and pain medication and advised to follow-up

  • Treatment five days later with spine surgeon complaining of constant severe neck pain; diagnosed with fractured lamina at C5-6 and herniated discs at C4-5; cervical collar continued and advised surgery needed
  • Surgeries on 12/13/11 and 12/14/11: posterior and anterior cervical fusion surgeries at C4-5-6 with metal pates and 12 screws inserted; inpatient for 12 days
  • Physical therapy for two years
  • Continuing and constant shooting and stabbing neck pain leaving plaintiff unable to return to work as a janitor, perform home maintenance chores or care for his disabled wife

The defendant did not challenge the liability verdict on appeal, arguing instead that erroneous trial court rulings led to excessive damages awards not only as to pain and suffering but also as to lost earnings and medical expenses.

As to lost earnings, defendant appealed only with respect to the future award arguing that because plaintiff was 74 years old at the time of trial the jury should not have been charged he had a work-life expectancy of 2.2 years and that an award covering 5.5 years in the future was unreasonable. Plaintiff testified, though, that he had intended to work until he was 79 years old so that he would then be entitled to a job-related pension.

As to medical expenses, the future award included costs that plaintiff’s surgeon testified would be incurred such as annual orthopedic visits, diagnostic studies (x-rays, MRIs and EMG studies), epidural injections and physical therapy ($128,703 for the duration of plaintiff’s life). The jury’s award did not include the $80,000 cost of future surgery.

Defendant did not produce either its orthopedic or radiologist experts despite giving notice that these witnesses would be presented. Plaintiff requested and was given a missing witness charge as to these doctors which led to negative inferences that the defendant argued on appeal unfairly prejudiced the jury and resulted in all of the excessive damages awards. The appellate court rejected this argument.

Inside Information:

  • Plaintiff’s 16 year old grandson testified about plaintiff’s physical activities before the accident and his limitations thereafter. They saw each other every other day for the four years prior to trial and every weekend before that.
  • Plaintiff moved to the United States from Kosova when he was 55 years old and became a citizen. His primary language is Albanian.

 

On August 15, 2012, Elaine Steinbok was on her way home from work when the taxicab in which she was a rear seat passenger made a left turn and struck a New York City Parks & Recreation vehicle at the intersection of Riverside Drive and West 76th Street in Manhattan.

Ms. Steinbok, then 34 years old, sued both drivers. A jury ultimately determined that the taxi driver was fully at fault and the city driver was fully exonerated.

The same jury, though, then ruled that plaintiff had not met the serious injury threshold under Insurance Law Section 5102(d) and, therefore, the jury awarded no damages at all for plaintiff’s pain and suffering.

The trial judge issued a decision upholding the jury’s determination in Steinbok v. City of New York (Supreme Court, New York County, 2019).

Plaintiff was transported by ambulance to a local hospital where she was diagnosed with a concussion and discharged to home several hours later.

Plaintiff claimed that as a result of the accident she sustained the following additional injuries:

  • a torn posterior labrum in her left shoulder that required arthroscopic surgery to repair two months later, with 14 months of post-operative physical therapy

  • a partially torn posterior cruciate ligament (PCL) in her left knee that will require surgery in the future
  • inability to return to work as a strategy supervisor in media advertising for nine months
  • neck and back pain requiring nine trigger point injections
  • continuing pain in knee, neck and shoulder with difficulty walking and trouble lifting 15 month old grandchild

The defendants argued (and the jury agreed) that plaintiff’s injuries were insufficient to meet the three serious injury threshold categories that they were instructed to consider by the judge in his charge to the jury :

  • a significant limitation of use of a body function, organ or system,
  • a permanent consequential limitation of the use of a body function, organ or system, or
  • a medically determined injury that prevented plaintiff from performing her usual and customary daily activities for 90 out of the 180 days immediately following the injury

Plaintiff did not present any of her treating physicians; rather the only medical witness testifying on her behalf was an orthopedic surgeon who examined her once five and a half years after the accident.

The defendants produced experts in emergency medicine, radiology and orthopedics. They opined that plaintiff’s injuries were not caused by the accident but were instead the result of either degenerative, pre-existing conditions or, in the case of the shoulder, impingement syndrome. The defense made much of the fact that the emergency room record contained no mention of shoulder or knee pain which, they argued, would have been present had plaintiff sustained a torn PCL or shoulder ligament.

Plaintiff filed a notice of appeal and we will follow this case for its ultimate resolution.

Inside Information:

  • In his closing argument, plaintiff’s attorney requested the jury to award past pain and suffering damages in the sum of $250,000 plus $476,000 for future pain and suffering (based upon plaintiff’s life expectancy of 47.6 years).
  • Plaintiff was not wearing a seat-belt. When an available seat-belt is not used and there is expert testimony from which the jury can conclude that some or all of the plaintiff’s injuries could have been avoided had the plaintiff worn the seat-belt, then plaintiff cannot recover for those injuries. The defense requested a charge to the jury along the lines of the foregoing but the judge refused because there was no expert testimony that the use of a seat-belt would have limited the injuries sustained.