On June 14, 2019, Rizwan Sharif injured his right foot at a construction site in Queens when he slipped and fell from an eight foot tall chain link fence he’d been instructed to measure. Mr. Sharif, then 34 years old, sued the property owner claiming violations of the Labor Law (he wasn’t provided a ladder) and general negligence.

The defendant failed to defend the lawsuit and plaintiff was granted a default judgment. Thereafter, on 11/3/21, an inquest on damages was held following which the judge awarded pain and suffering damages in the sum of $100,000.

Plaintiff appealed, arguing that the damages award was inadequate. In Sharif v. Pritam Properties, Inc. (2d Dept. 2024), the appellate court increased the award to $400,000.

The appellate court did not discuss the injuries sustained. Here are the injury details:

  • Lisfranc Injury – fractures of three metatarsals, cuneiform and cuboid in right foot
  • Casted for one month
  • Open Reduction Internal Fixation surgery a month after the accident
  • Hardware removal surgery two years later

The inquest was held less than six weeks after the hardware removal surgery at which time plaintiff testified that he was in great pain and still unable to return to work. His pain management physician was the only other witness; he testified that the accident also caused a herniated disc in plaintiff’s back that had required three epidural steroid injections, was still causing plaintiff pain and difficulties and would require further treatment.

Inside Information:

  • Plaintiff’s attorney asked the inquest judge to award a total of $6,400,000 ($3,500,000 for pain and suffering and the balance for lost wages and medical expenses).
  • In his decision, the inquest judge did not analyze plaintiff’s injuries or explain whether the damages were for past pain and suffering, future pain and suffering or economic claims.
  • In the judgment ultimately entered on the $400,000 award, plaintiff was awarded an additional $150,000 for interest.

In 2013, Mario Mujica, then 29 years old, was erroneously released prematurely from prison after serving all but a week of a negotiated plea agreement to serve six months for a drug offense. On October 28, 2013, he voluntarily surrendered himself and was taken to the Nassau County Correctional Facility.

After he’d been processed on the day of his surrender, Mujica and a corrections officer got into a verbal altercation which promptly escalated into a physical altercation with three officers that left Mujica injured.

Mujica sued Nassau County and the officers for battery claiming that their use of force was unlawful; the officers claimed that their use of force was in response to plaintiff’s argumentative and combative behavior.

The jury found in favor of the plaintiff and awarded him pain and suffering damages in the sum of $310,000 ($150,000 past – 4.5 years, $160,000 future – eight years). In Mujica v. Nassau County Correctional Facility (2d Dept. 2024), the appellate court affirmed both the liability and the damages verdicts.

Here are the injury details:

  • Fractured Rib
  • Carpal Tunnel Syndrome and left wrist De Quervain’s tenosynovitis requiring release surgeries on both wrists and a tendon release surgery
  • Post-Traumatic Stress Disorder “(“PTSD”)

There was extensive medical testimony on both sides. Two psychiatrists and a hand surgeon testified for the plaintiff; a psychiatrist and a neurologist testified for the defense.

Inside Information:

  • Plaintiff’s post-trial motion seeking an increase in the damages awards was denied.
  • The defense neurologist opined that plaintiff did not sustain PTSD adding: “He insulted an officer, the officer interacted back with him. He found himself on he floor. The rest is what followed. It’s not like he was so traumatized that it would have caused it.”

On December 18, 2014, Audrey Buckham was injured in her Brooklyn apartment when the ceiling in her bathroom collapsed on her while she was in the shower striking her and knocking her to the floor.

Ms. Buckham, then 52 years old, sued her landlord claiming that the defendant knew the bathroom ceiling had been leaking for years but the leak was never repaired and it caused the ceiling collapse. The jury agreed and assessed full liability against the defendant.

In a separate damages trial a month after the liability verdict, a new jury awarded plaintiff pain and suffering damages in the sum of $1,350,000 ($600,000 past – 4.5 years, $750,000 future – 25 years).

In Buckham, v. 322 Equity, LLC (2d Dept. 2024), the appellate court affirmed both the liability and damages verdicts.

Plaintiff claimed she sustained injuries to both shoulders, her back and her right knee, each requiring surgery. Here are the injury details:

  • Right Shoulder – rotator cuff tear requiring arthroscopic surgery on 6/5/15
  • Left Shoulder – impingement requiring arthroscopic surgery on 7/29/16
  • Lumbar Spine – spondylolisthesis with injured disk requiring facetectomy decompression and discectomy with fusion with placement of intervertebral body cage at L5-S1 on 4/19/17
  • Right Knee – meniscal tear requiring arthroscopic surgery on 9/8/17

The defendant argued that the damages awards were excessive because (a) plaintiff admitted her back surgery improved her condition and (b) the conditions requiring surgery to plaintiff’s shoulders and knees were not related to the accident.

Plaintiff was also awarded damages in the sum of $580,000 for her past and future loss of earnings. She’d been a home health aide at the time of the accident and claimed she was unable to return to any meaningful employment as a result of her injuries. Her testimony and W-2s established that her actual loss of earnings was less than the jury award so the appellate court reduced the award by $15,000.

On January 4. 2008, Antonio Molina III was admitted to Westchester Medical Center after being diagnosed with pleural fluid in his lungs. Two days later, Mr. Molina, then 35 years old, suffered a heart attack while in the hospital’s care.

Tests later that day found that a heart vessel was completely obstructed. The insertion of a stent was unsuccessful. Thereafter, over the next three years, Mr. Molina was treated for congestive heart failure at multiple different hospitals. He died on October 27, 2011 from complications from a ventricular assist device that had been implanted earlier that year.

In the ensuing wrongful death case against Westchester Medical Center and its doctors, plaintiff claimed that the defendants failed to timely diagnose and treat Mr. Molina’s heart attack.

The jury returned a liability verdict against the defendants finding that their malpractice was causally related to both the heart attack and plaintiff’s death.

The jury awarded damages in the sum of $3,650,000 as follows:

  • $1,000,000 for pre-death emotional pain and suffering,
  • $1,000,000 for pre-death physical pain and suffering,
  • $600,00 for lost earnings,
  • $350,000 for lost services and,
  • $700,000 for loss of parental guidance.

The defendants appealed claiming both that the liability verdict should be reversed and that the damages awards were excessive. In addition, they argued that the awards for pain and suffering and “emotional” pain and suffering were duplicative.

In Molina v. Goldberg (2d Dept. 2024), the appellate court upheld the liability verdict but reduced the damages award by the $1,000,000 that the jury had awarded for emotional pain and suffering. The court stated that this award was for pre-impact terror delineated as emotional pain and suffering and it was inappropriate as a separate item of damages.

Inside Information:

  • In 2023, the Appellate Division, First Department reached a different conclusion as to pre-impact terror emotional damages in Small v. City of New York (a case in which I was plaintiff’s damages consultant). In that case , the court allowed both an award for physical pain and suffering and an award for emotional pain and suffering (i.e., for decedent’s fear of impending death).
  • The parental guidance damage award was for Mr. Molina’s younger son who was seven years old at the time of trial. He was born after the malpractice occurred.
  • On 12/27/07, Mr. Molina had been in a single car accident (he was the driver). He was treated that day and released from an ER after complaining of chest, back and ankle pain.

On September 8, 2015, Alan Rosenthal sought medical treatment from Danny Sperling, M.D., an interventional radiologist specializing in the treatment of prostates. Mr. Rosenthal, then 60 years old, had a history of an enlarged prostate, he’d been recently diagnosed with two tumors in his prostate and he was concerned he might have prostate cancer.

Dr. Sperling removed eight biopsy samples to test for possible cancer but at the same time, before any results were obtained from the samples, he performed an invasive focal laser ablation (FLA) procedure.

Although there was no cancer, as a result of the procedure, Mr. Rosenthal suffered significant and debilitating injuries to his urinary system, lower gastrointestinal system and compromised sexual function.

He sued the doctor claiming that the FLA procedure was unnecessary, not indicated and done without informed consent. The Bronx County jury found that the defendant committed deviations from accepted medical practice and that the FLA procedure caused injuries to the plaintiff.

The jury then awarded plaintiff pain and suffering damages in the sum of $2,575,000 ($500,000 past – four years, $2,075,000 future – 16.6 years). The defendant appealed arguing that there was no basis for liability against him and that the damages award was excessive. In Rosenthal v. Sperling (1st Dept. 2024), both the liability and damages verdicts have been affirmed.

Plaintiff asserted a claim for punitive damages and the jury found that punitive damages should be awarded because of testimony that the procedure was experimental and that defendant directed changes to plaintiff’s medical records. That finding was vacated, though, based on an error in the jury charge.

Inside Information:

  • This case has been hard fought with a three month trial, extensive motion practice, multiple appeals and a bankruptcy filing by the defendant. Plaintiff’s attorneys – Charles Gucciardo of The Gucciardo Law Firm at trial and Jonathan Dachs on appeal – have been outstanding.
  • Plaintiff’s wife was awarded $200,000 (past only) for her loss of society and services.

On June 14, 2018, Mauricio Plazas was stopped at a red light in Somers when a left-turning car driven by Brenna Sherlock struck the side of his car. She claimed he’d moved past the stop line into the intersection when the collision occurred. Mr. Plazas, then 45 years old, sued Ms. Sherlock claiming that he sustained significant neck injuries.

The drivers were determined to be equally at fault for the crash and the Putnam County jury awarded pain and suffering damages in the sum of $53,625 (all past – three and a half years). The jury declined to award anything for future pain and suffering, future loss of earnings or future medical expenses.

Plaintiff appealed, arguing that the jury award was inadequate.

In Plazas v. Sherlock (2d Dept. 2024), the appellate court :

  • agreed that the award for past pain and suffering was inadequate and increased it to $200,000
  • affirmed the jury’s award of no damages at all for any item of future damages

Here are the injury details:

  • Plaintiff did not complain of any pain at the scene of the crash and drove himself to work; later that day he drove himself to the local hospital where he complained of wrist and lower back pain. He was treated and released.
  • 10 days later, plaintiff was seen by an internal medicine physician with complaints of neck and lower back pain.
  • physical therapy intermittently for three years
  • epidural steroid and trigger point injections
  • herniated discs at C5-6 and C6-7 per July 2018 MRI
  • cervical discectomy and fusion surgery on 6/18/19
  • continuing pain, limitations of range of motion

The defense argued that this was a minor impact car accident and that plaintiff was not seriously injured. Their orthopedic surgeon expert testified that plaintiff did not sustain any causally related herniated discs and that the surgery plaintiff underwent was not necessitated by the injuries caused in the accident.

Inside Information:

  • Plaintiff continued to work at a shelter for minors as a quality insurance coordinator but quit six months later due to continuing pain.
  • In his summation, plaintiff’s attorney asked the jury to and pain and suffering damages in the sum of $2,500,000. Defense counsel agued that the injuries claimed did not meet the so-called threshold under the Insurance Law and therefore there should be no award of damages at all.

On September 6, 2016, Bruce Brown was asleep in his bed when an unsafe ceiling collapsed above him in an apartment and the debris fell onto him. Mr. Brown then 74 years old, claimed that he sustained significant spinal disc injuries and he sued the premises owner.

After returning a verdict finding that the defendant was negligent, the Bronx County jury awarded plaintiff pain and suffering damages in the sun of $1,000,000 ($500,000 past – 5 1/2 years, $500,000 future – 10 years). The trial judge found that the award was not excessive.

In Brown v. Voda Realty LLC (1st Dept. 2024), the appellate court reduced the pain and suffering award to $800,000 ($400,000 past, $400,000 future).

Here are the injury details:

  • aggravation of age-related, pre-existing degenerative cervical and lumbar spine conditions (herniated discs C3-7 and L3-S1)
  • first medical treatment five days after the incident (treated and released at ER)
  • three months of physical therapy
  • continuing pain in back and neck leaving plaintiff unable to run, dance with his wife, carry his grandchildren or do grocery shopping and requiring over-the-counter pain medication

Inside Information:

  • after the ceiling fell, plaintiff felt immediate pain but he thought it would go away so he then took a shower and went back to bed
  • defendants argued that the pain and suffering award should be reduced to $300,000

On May 21, 2016, a 14 year old girl (N.Y.) attended a sleepover at a friend’s house in Springfield, New York. The house was owned by the friend’s parents, Allan and Melissa Manikas. During the night, N.Y. was allegedly raped by the parents’ 20 year old son Jordan. N.Y. sued Jordan for battery and intentional infliction of emotional distress and his parents for premises liability and negligent supervision.

Jordan denied raping the plaintiff and testified that he never had any kind of sexual contact with her. N.Y. did not waver in her assertion that Jordan raped her. Supporting the claim against Jordan’s parents, plaintiff adduced evidence that they were home on the night in question and were well aware that their had previously exhibited sexually aberrant behavior toward young girls and had a reputation as a sexual predator.

The Otsego County jury found for plaintiff on all causes of action, awarding damages for emotional pain and suffering in the sum of $2,000,000 ($1,000,000 past – six years, $1,000,000 future – five years). They apportioned fault 90% to the parents and 10% to the son. They also awarded punitive damages against the son in the sum of $750,000.

In a post-trial motion, the defendants argued that they were denied a fair trial, among other reasons, because plaintiff’s counsel, especially in his opening statement, invoked racial stereotypes (Jordan is African-American). The trial judge agreed and he issued a post-trial order that vacated the verdict.

Defendants also argued that the damages award was against the wight of the evidence. Plaintiff’s pain and suffering claims were supported by plaintiff herself, a forensic psychologist, plaintiff’s pediatrician and several of plaintiff’s family members.

In Lisa I. v. Manikas (3d Dept. 2024), the appellate court rejected the defendants’ argument that the trial was unfair, reversed the post-trial motion order and remitted the matter to the trial court for entry of an appropriate judgment.

Inside Information:

  • No criminal complaint was ever filed.
  • The parents had a homeowner’s insurance policy with State Farm Insurance Company in the sum of $1,300,000. Plaintiff’ pre-trial settlement demand was $1,200,000 against an offer of $400,000 .

On September 28, 2010, Bei Yang’s obstetricians delivered her child at Greenwich Hospital in Connecticut. An episiotomy was performed during the vaginal delivery that allegedly caused a fourth-degree laceration that was improperly repaired resulting in a rectovaginal fistula.

Ms. Yang retained The Pagan Law Firm to pursue medical malpractice claims against her doctors. They sued the doctors in New York County and, after successfully opposing defendants’ motion for summary judgment and preparing the case for trial, the firm negotiated a settlement for $1,300,000 which was accepted by their client. A month later, the firm issued their client a check for $1,000,000 – the net amount after attorneys’ fees and disbursements.

On 9/14/18, Ms. Yang commenced a legal malpractice action against her former law firm claiming that she was pressured into accepting the $1,300,000 settlement and would have recovered more than that had her former attorneys properly prosecuted her case. On a motion for summary judgment, the attorney malpractice case was dismissed.

In Yang v. The Pagan Law Firm, P.C. (1st Dept, 2024), the dismissal was affirmed. The appellate court noted that plaintiff could not show that but for her former lawyers’ negligence she would have obtained a verdict at trial that exceed the $1,300,000 settlement amount that the defendants negotiated.

Plaintiff argued that her former law firm committed legal malpractice by ignoring her intention to proceed to trial, demanding that she advance trial expenses and coercing her to accept a settlement that was for an amount less than the case was worth.

The law firm argued that they prosecuted the medical malpractice case properly and that their client made a fully informed decision to accept the settlement which was very favorable and avoided the substantial risk of a defense verdict.

Inside Information:

  • Plaintiff submitted an affirmation of an expert medical malpractice lawyer who opined that awards in prior similar cases demonstrated that plaintiff’s “settlement is far less than what a jury might award, and which the appellate division has sustained.”
  • Plasintiff is a lawyer in New York concentrating on workers’ compensation matters.
  • The attorney malpractice lawsuit was commenced two days short of the three year anniversary of the date plaintiff accepted the medical malpractice settlement.

On October 16, 2016, Willie Kendrick was assaulted by a security guard when he visited a patient at Rochester General Hospital.

Mr. Kendrick, then 23 years old, sued the guard alleging assault, battery and false imprisonment. The jury found in his favor and awarded him damages in the sum of $200,000 – $150,000 for pain and suffering plus $50,000 for false imprisonment (in each case, past only – seven years). Both liability and damages were affirmed on appeal in Kendrick v. Rochester General Hospital (4th Dept. 2024).

Plaintiff claimed that when he was leaving the hospital, the guard grabbed and attacked him, hitting, punching and kicking him until he was unconscious and then handcuffing him while he was on a hospital gurney.

Here are the injury details:

  • Facial lacerations and bruising
  • Traumatic injury to kidneys causing rhabdomyolysis (a condition that occurs when muscle tissue breaks down and releases its contents into the bloodstream)
  • two week hospital admission

Inside Information:

  • Defendant argued that plaintiff was being evicted from the hospital, he initiated the physical interaction and his injuries were minor with no fractures or surgery.
  • The altercation was captured on surveillance video.
  • The suit named the hospital as a defendant based on negligent hiring but proceeded to trial against just the security guard.