On November 12, 2012, Florence Nemeth, then 67 years old, was diagnosed with peritoneal mesothelioma, a tumor of mesothelia cells in the abdomen. She died from the disease on March 5, 2016, before a lawsuit was brought on her behalf against several firms involved in the manufacture and distribution of a talc based product she had regularly utilized, Desert Flower Dusting Powder.

After a six week trial in Manhattan Supreme Court, the jury returned a verdict finding that defendant Whittaker Clark Daniels, Inc. (“WCD”) was negligent when it  provided the talc contaminated with asbestos without an adequate warning and that its negligence was a substantial factor in causing injury to Ms. Nemeth (who died shortly before the trial began). Liability was apportioned 50% to WCD and 50% to two other defendants who had settled with plaintiff before trial.

The jury then returned a verdict awarding damages for (a) pre-death pain and suffering in the sum of $15,000,000 (40 months) and (b) loss of consortium in the sum of $1,500,000 (40 months). The trial judge reduced the damages to $6,000,000 for pain and suffering and $600,000 for loss of consortium,

In Nemeth v. Brenntag North America (1st Dept. 2020), the appellate court affirmed the trial judge’s reduction of damages and addressed issues concerning causation and liability apportionment.

Here are the injury details:

  • chemotherapy over three year period that left decedent feeling terrible for several days after each session and which caused her hair to fall out and her teeth to break
  • three surgeries to debulk the tumors to attempt to remove the cancer, involving drainage of as much as 20 pounds of fluid that had accumulated in the abdomen (the first one of which involved cutting open the decedent from her chest to her pelvis and the first two of which involved five day hospital admissions)
  • depression
  • pain, difficulty breathing and walking (due to fluid accumulation); breakthrough pain (severe pain that erupts while a patient is already medicated with a long-acting painkiller) during the decedent’s final three days

The defense argued that the pain and suffering award should be substantially reduced because Ms. Nemeth’s pain and suffering was not severe during much of the time from her diagnosis to her death. The 40 month period was substantially longer longer than other reported cases dealing with mesothelioma because victims of peritoneal mesothelioma tend to live longer than victims of pleural mesothelioma (which affects the lungs). The trial judge stated, “the pain and suffering [in pleural mesothelioma cases] is usually much more pronounced and expressed very early on in the outset of the disease.”

Inside Information:

  • Ms. Nemeth testified in a preserved videotaped deposition that over an 11-year period, from 1960-1971, she powdered her body with Desert Flower Dusting Powder every day after showering, using a powder puff for two minutes to apply it all over her body.
  • Post-trial, the defense suggested a maximum pain and suffering award of $4,500,000 whereas the plaintiff suggested $10,000,000.
  • Defendants Shulton, Inc. and Proctor & Gamble Co., Inc., its corporate parent, who manufactured the talc, are the defendants who settled the claims against them before trial (for $732,500) and against whom 50% of the liability was assigned. Accordingly, the judgment against WCD was reduced by one-half.
  • Brenntag North America is WCD’s corporate parent.

 

 

On November 3, 2014, Anna Brennan slipped and fell at a private home in Greenwood Lake. Ms. Brennan, a 66 year old part-time caretaker for the mother of one of the homeowners, sustained hip and wrist injuries when she finished work that day and began to descend an exterior stairway with leaves that covered the bottom two steps. She thought the leaves were only covering the street and fell when thought she was on the bottom step but was actually on the third step from the bottom.

In Ms. Brennan’s ensuing lawsuit, the Orange County jury determined that the homeowners’ negligence caused her injuries and they then awarded plaintiff pain and suffering damages in the sum of $600,000 ($400,000 past – four  years, $200,000 future – 16 years).

In Brennan v. Gormley, the appellate court has affirmed both the liability and damages verdicts.

Here are the injury details:

  • Hip – displaced femoral neck fracture requiring hemiarthroplasty (partial hip replacement) with ball and socket

  • Wrist – fractures of ulnar styloid process and distal region of radius requiring surgery to insert pins into (non-dominant) wrist (pins were removed one month later)
  • Four day hospitalization, six weeks home health aide and physical therapy, six weeks of limited ambulation with walker
  • Unable to return to work, climb stairs without difficulty, limited ability to do housework and ability to walk for exercise reduced to one-half mile a day (from 1.5 miles a day)

Defendants’ main argument on appeal was that there was no basis for the liability finding against them because the leaves on the stairs were open, obvious and known to plaintiff. They also argued that the damages award was excessive because plaintiff made a good recovery from her injuries, her continuing pain was sporadic and minimal and her limitations were not severe.

 

 

On April 3, 2007, Cleofoster Baptiste was working as a carpenter at a construction site at 1330 First Avenue in Manhattan when a plank of wood fell from the floor above and struck the back of his neck.

In his ensuing lawsuit against the site’s owner and general contractor, the jury (a) determined that the defendants caused the accident and were 100% liable for the injuries plaintiff sustained and (b) awarded pain and suffering damages in the sum of $1,400,000 ($550,000 past – 11 years, $850,000 future – 17 years).

In Baptiste v. RLP-East, LLC (1st Dept. 2020), the denial of defendants’ post-trial motion to set aside the verdict has been affirmed.

In addition to its pain and suffering damages award, the jury also awarded damages for (a) lost earnings in the sum of $1,124,000 and (b) medical expenses in the sum of $520,000. The appellate court reduced the medical expenses award by $54,261 because there was insufficient evidence to support the need for any future surgery.

Here are the injury details:

  • herniated discs at C3-4, C4-5 and C5-6 with radiculopathy requiring discectomies and three level fusion with plate and screws on 3/28/12
  • continuing neck pain and restricted ranges of motion preventing any return to work, walking fast, playing with grandchildren and doing household chores

Plaintiff, 52 years old on the date of this accident, continued to work on that day but went to the local hospital thereafter where he was given some pain medication and discharged in a few hours. He returned to work in pain the next day but was laid off two days later. He sought no further medical treatment until after a bus accident six months later.

Six months after his construction site accident, Mr. Baptiste was a passenger on a bus which swerved to avoid hitting another vehicle and came to a sudden stop. Baptiste came out of his seat and was then dropped back into it. He didn’t go to the hospital or seek any medical attention until two days later when he complained of neck, back and shoulder pain from the bus accident. Baptiste then began 19 months of treatment with a chiropractor (along with and followed by treatment with a neurologist and a pain management physician).

Defendants argued that the principal issue in this case was whether plaintiff’s injuries were causally related to the workplace accident or the bus accident. Their medical experts testified that there was no evidence that the work accident caused a neck injury or necessitated the cervical fusion surgery. Plaintiff’s medical experts testified that the workplace accident, not the bus accident, was the cause of his injuries and the need for cervical fusion surgery.

Inside Information:

  • Plaintiff’s lawsuit against the bus company was dismissed on procedural grounds (failure to timely commence the lawsuit).
  • The MRI’s revealing herniated discs in plaintiff’s cervical spine were conducted after his bus accident.

 

 

On November 19, 2009, Calvin Tarpley was driving his car and was pulled over to the curb by a police officer on 188th Street near Hillside Avenue in Queens. After he was given a traffic ticket, his stationary vehicle was struck at the front driver’s side by a city bus. Mr. Tarpley, a 43 year old security guard, sustained neck and back injuries and sued the city.

After determining that the the bus driver was 100% at fault for the collision, the Queens County jury awarded pain and suffering damages in the sum of $10,000,000 ($3,000,000 past – five and a half years, $7,000,000 future – 28 years).

In Tarpley v. New York City Transit Authority (2d Dept. 2019), the defense successfully argued on appeal that the award was excessive and the court ordered a reduction of the pain and suffering award to $3,000,000 ($1,000,000 past, $2,000,000 future).

Here are the injury details:

  • herniated disc at C5-6 with radiculopathy and myelopathy, requiring anterior cervical discectomy and fusion surgery with the insertion of a titanium plate and four screws
  • failed back syndrome, requiring a laminectomy at T9-10 and the permanent placement of a spinal cord stimulation device

  • approximately 50% permanently restricted range of motion in neck and back
  • daily, constant and permanent neck and back pain which plaintiff’s treating surgeon testified require medications that induce drowsiness and leave plaintiff unable to work
  • bulbous keloid scar at the front of plaintiff’s neck
  • future lumbar fusion surgery likely

Inside Information:

  • There was no expert medical testimony adduced by the defense.
  • Eight years before this accident, Mr. Tarpley had sustained a back injury in a car accident that required a laminectomy at L5-S1. He claimed he’d largely recovered and had minimal if any back pain before this accident.
  • Plaintiff’s pre-trial settlement demand was $2,500,000 against an offer of $250,000.
  • The plaintiff did not seek medical attention at the scene and the defense argued that the crash was relatively minor.

On July 3, 2013, Xiaoen Xie, a welder working at a construction site in Queens, was injured when he fell from the ground floor to the basement 10 feet below.

Mr. Xie, then 47 years old, was rushed to the hospital where he was treated for spinal injuries.

In his ensuing lawsuit against the owner of the site, Mr. Xie was granted summary judgment as to liability on his Labor Law Section 240(1) claim. The matter then proceeded to a trial on damages only.

In the bench trial on damages, the judge awarded pain and suffering damages in the sum of $325,000 ($75,000 past – four years, $250,000 future – 29 years). Plaintiff appealed arguing that the damages award was inadequate.

In Xie v. Park Place Estate, LLC (2d Dept. 2020), the pain and suffering damages award was increased to $650,000 ($400,000 past, $250,000 future).

Here are the injury details:

  • burst fracture at T-10 with instability and compression deformity at T-12
  • thoracic spine interbody fusion surgery with allograft, seven titanium pedicle screws, two 10 cm rods and bone cage

  • one week hospital admission
  • 50% loss of forward flexion
  • pain when sitting or standing for more than 20 minutes, likely permanent
  • intracranial hemorrhage with double vision and headaches that resolved within 18 months post-accident

In addition to pain and suffering damages, plaintiff was awarded $46,000 for past loss of earnings based upon his $1,000 per month income loss to the date of trial. At the trial, plaintiff testified that he had previously intended to work until he was 67 years old and claimed he should be awarded damages for future loss of earnings because his injuries prevent him from working in any field. The judge rejected this claim because his expert orthopedic surgeon testified merely that plaintiff wold be unable to work as a construction worker, not that he could not work in any field. Furthermore, plaintiff did not meet his burden to show that he attempted to mitigate his damages by seeking alternative employment.

 

On November 16, 2015, Roseann Maurer was stopped in her car waiting to tun left into a driveway on Big Tree Road in Wales (about 25 miles southeast of Buffalo) when another car struck hers in the rear end. Ms. Maurer sustained knee, neck and low back injuries.

After summary judgment as to liability was granted in her favor against the other driver, Ms. Maurer’s lawsuit proceeded to a trial on the issue of damages only. The Erie County jury awarded her pain and suffering damages in the sum of $374,000 ($108,000 past – three years, $266,000 future – 20 years).

Plaintiff contended that the pain and suffering awards were inadequate. Both the trial judge and the appellate court agreed (as to the future pain and suffering award) and in Maurer v. Colton (4th Dept. 2020) the total pain and suffering award was increased to $588,000 ($108,000 past, $480,000 future).

Here are the injury details:

  • Right Knee: complex medial meniscus tear and Grade III chondromalacia requiring two arthroscopic meniscectomies and chondroplasties (and knee replacement surgery may be required within 5-10 years)

  • Back: L2 inferior end plate compression fracture and  herniated discs at L1-4 (and at other lumbar levels), with radiating pain and permanent significant losses of range of motion (and a two level discectomy and fusion surgery may be required in the future)
  • Neck: herniated discs at C4-7 (and at other cervical levels), with radiating pain and permanent significant losses of range of motion (and a three level discectomy and fusion surgery may be required in the future)

Inside Information:

  • At the time of the crash, plaintiff was 62 years old and the caretaker of her young grandson.
  • During deliberations, the jury sent out a note asking for the testimony given as to the cost of the future cervical and lumbar surgeries.

On December 21, 2012, Terrence Cullen was driving his car on Wantagh Avenue in Hempstead when another vehicle drove through a stop sign on Sarah Drive and smashed into his car. Mr. Cullen, then 53 years old, sustained hand and knee injuries.

In the ensuing lawsuit, the other driver conceded full liability for the crash and the matter proceeded to a trial on damages only.

The Nassau County jury awarded pain and suffering damages in the sum of $25,000 (all past – five years).

In Cullen v. Thumser (2d Dept. 2019), upon plaintiff’s appeal that the damages award was inadequate, the appellate court ordered an increase in the damages verdict to $150,000 ($100,000 past, $50,000 future – 19 years).

Here are the injury details:

  • right knee – complex tear of the medial meniscus, requiting arthroscopic partial medial meniscectomy with resection of approximately 50% of the meniscus
  • left thumb – ulnar collateral ligament partial tear, resulting in diminished range of motion and strngth

Plaintiff claimed at trial that he had swelling in his knee and hand on good days and when worse, he would take Tylenol and Motrin for pain. He also said he had difficulty gripping things, getting dressed, using tools, exercising and playing softball with his daughter.

Plaintiff’s expert orthopedic surgeon testified that (a) plaintiff had decreased range of motion in his knee (about 10 degrees) and recurring pain that is permanent and (b) his thumb remained incompetent and needs to be surgically sewn up (but would still not be 100%).

Defendant’s expert orthopedic surgeon testified that (a) plaintiff had pre-existing degeneration in his knee (plaintiff conceded he had some pre-existing calcification but noted he was asymptomatic and never treated) and (b) it was unlikely that the car accident caused his knee injury. The defense expert conceded that plaintiff had an unstable thumb that could become chronic without surgery but was unable to opine whether the accident caused plaintiff’s thumb injury.

Inside Information:

  • In return for defendant’s concession as to liability (and that plaintiff’s injuries satisfied the Insurance Law threshold), plaintiff agreed that he would not seek any award above the defendant’s $300,000 liability insurance policy limits.
  • Plaintiff is six feet seven inches tall and played basketball throughout high school and college and thereafter. The defense argued that his knee injury could have occurred while he was playing basketball.
  • In closing arguments, plaintiff’s counsel requested a total pain and suffering award of $350,000 ($50,000 for the knee injury plus $300,000 for the hand injury). Defendant’s counsel argued that plaintiff was not at all disabled, had no injury to his knee caused by the car accident and his hand injury warranted only a past pain and suffering award of $25,000 (the exact amount awarded by the jury).

On December 4, 2013, Martin Glynn was riding his bicycle on Batten Road in Croton-on-Hudson. When he entered the intersection to cross Yorktown Road his bicycle collided with the passenger side of a car. As a result, Glynn, then a 68 year old self-employed computer programmer, sustained a significant injury to his dominant hand.

In the ensuing lawsuit, a Westchester County jury determined that the accident was 100% the fault of the vehicle driver. The jury then awarded pain and suffering damages in the sum of $358,000 ($24,000 past – three years, $334,000 future – 11.5 years).

In Glynn v. Altobelli (2d Dept. 2020), the appellate court affirmed the liability finding and ordered that the damages awards should be reduced by $58,000 to a total of $300,000 ($100,000 past, $200,000 future).

Here are the injury details:

  • intraarticular comminuted displaced fracture of the base of the thumb metacarpal  (Bennett fracture)

  • open reduction internal fixation surgery to reduce the fracture with the insertion of three steel percutaneous pins
  • removal of pins one month later
  • cast six weeks, physical therapy four months, cortisone injection
  • post-traumatic arthritis, decreased range of motion and fibrosis

Plaintiff testified at trial that that he still had:

  • stiffness and lack of dexterity in his hand
  • occasional burning pain and constant low level pain
  • limitations as to his lifelong banjo playing as well as exercising and writing computer code

Plaintiff’s treating surgeon testified that his pain and limitations are permanent, will get worse and it is likely he will require future surgery (a CMC arthroplasty).

Inside Information:

  • The defense did not produce a medical expert.
  • Plaintiff’s pre-trial settlement demand was $325,000; defendant’s offer was $200,000.

On November 23, 2011, Margarita Martinez was pushing her shopping cart in a crosswalk when she was struck by a cargo van on Cypress Avenue at East 138th Street in the Bronx. The van was driven by Robert Lane in the course of his employment as a delivery driver for Premium Laundry.

Ms. Martinez, 79 years old, was run over, dragged a few car lengths and ended up trapped under the vehicle. An ambulance transported her to a nearby hospital but after 25 minutes there she was pronounced dead.

In the ensuing litigation against the driver, his employer and the vehicle owner, the Bronx jury awarded pre-death pain and suffering damages in the sum of $10,500,000.

In Martinez v. Premium Laundry Corp. (1st Dept. 2020), the appellate court ruled that the award was excessive and ordered a reduction to $3,000,000.

Here are the injury details:

  • blunt impact injury to head (with laceration exposing skull) and neck
  • multiple spinal fractures and crush injuries of chest and pelvis
  • fractures of tibia and fibula

The parties disagreed as to the amount of time Ms. Martinez experienced conscious pain and suffering from the moment of impact until she was pronounced dead. Both parties relied upon testimony from (a) the driver who said he heard Ms. Martinez moaning for a few seconds before she was extracted from under his vehicle and (b) expert neurologists who relied upon the EMS and hospital records.

Plaintiff’s expert noted that while in the ambulance Ms. Martinez was moving her arms and legs and her eyes were open. He opined that the decedent was able to experience conscious pain and suffering for 40 minutes (21 minutes from impact until arrival at the hospital and 19 minutes more until she was intubated and lapsed into a coma at the hospital before being pronounced dead seven minutes after lapsing into the coma).

Defendant’s expert conceded that at some early part of the first 20 minutes after impact and before arrival at the hospital, Ms. Martinez was able to perceive some pain. It is pure speculation, though, he opined, to state that the decedent was capable of perceiving pain at any time after she arrived at the hospital.

 

On August 15, 2011, Calvin Thomas slipped and fell on the second floor landing of an interior staircase in an apartment building at 383 East 143rd Street in the Bronx. As a result, he sustained a major ankle injury.

383 East 143rd Street

Mr. Thomas, then 51 years old, sued the building owner claiming that his foot slipped on urine and feces and that the owner was liable for his injuries because it failed to maintain a safe premises. The jury agreed to the extent that it found the defendant 67% at fault (while assigning 33% of the fault to plaintiff).

The jury awarded plaintiff pain and suffering damages in the sum of $70,000 (all past – six years). Plaintiff appealed, arguing that the jury’s award was inadequate – both as to  (a) the amount for past pain and suffering and (b) the failure to award anything at all for future pain and suffering.

In Thomas v. New York City Housing Authority (1st Dept. 2020), the appellate court increased the award to $375,000 ($275,000 past, $100,000 future).

Here are the injury details:

  • bimalleolar left ankle fracture with deltoid ligament rupture and a displaced oblique fibula fracture
  • surgery #1 (on 10/12/11): open reduction internal fixation with removal of scar tissue, ligament repair and placement of a six hole metal plate and five screws
  • surgery #2 (on 5/26/14): arthroscopic removal of hardware and scar tissue
  • post-traumatic arthritis
  • occasional use of cane
  • cannot walk long distances or engage in sports

Inside Information:

  • Plaintiff had been visiting his mother at the time of the incident and was walking down the staircase from her apartment on the 10th floor. After he fell, plaintiff hobbled back to her apartment on his right foot. He did not seek medical treatment until three days later when he went to the local emergency room.