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.

 

 

 

 

On November 22, 2002 Edward Beloyianis, then 14 years old, underwent spinal surgery at Columbia Presbyterian Medical Center intended to correct long-standing severe congenital scoliosis.

He came out of the surgery paralyzed from the waist down.

In his ensuing medical malpractice lawsuit, plaintiff claimed that that the surgeon and hospital should have sent Edward for an intra-operative CT scan (that would have shown screws in or abutting the spinal cord canal) and that their failure to do so was a departure from accepted medical malpractice and a substantial factor in causing Edward’s injury. Eight years after the surgery, while the lawsuit was pending, Edward died on October 9, 2010 at the age of 22 years.

Defendants argued that Edward’s injury was an ischemic event due to a loss of blood supply, not any malpractice. Edward had severe congenital scoliosis which the procedure, anterior thoracolumbar fusion from T-9 through L-1, was intended to correct. It was a complicated case that required the placement of screws and rods at several levels. At some time prior to completion of the placement of the screws, a monitor indicated  loss of somatic and motor signals that could be an indication of spinal cord injury and possible paralysis.

The jury determined that the defendants committed malpractice regarding the failure to order a CT scan for which the Bronx jury  awarded pain and suffering damages in the sum of $40,000,000 (eight years).

The trial judge denied defendants’ post-trial motion to set aside the liability finding but he granted the motion insofar as it sought to decrease the amount of damages. In Beloyianis v. The New York and Presbyterian Hospital (Supreme Court Bronx County 2017), the award for pain and suffering damages was reduced to $9,117,000

The jury also awarded economic damages  in the sum of $5,625,000 for monetary losses allegedly suffered by Edward’s parents, mainly for the 20-30 year period they found that his parents reasonably had expected to be financially supported by their son. The trial judge agreed with the defendants that the evidence in no way supported such a large award. Where economic losses are claimed by parents in cases involving young decedents, it’s often impossible to furnish direct evidence of pecuniary injury and some leeway is given to plaintiffs; however,  the award cannot be based upon speculation and the parents must establish that they had a reasonable expectation of support. The award for economic damages was reduced by the trial judge to $125,000.

In late 2018, after a motion to renew/reargue the post-trial decision adhered to the jury’s liability verdict and the judge’s damages reduction and before pending appeals were perfected, the case was settled for the sum of $10,900,000.

Here are the injury details:

  • permanent paraplegia, wheelchair bound and unable to walk at all
  • incontinence requiring constant catheterization
  • repeated urinary tract infections
  • decubitus ulcers recurring about once a month
  • involuntary spasms and spasticity
  • chronic nerve pain in legs (despite lack of sensory responses)
  • surgical implantation of Baclofen pump system for pain and spasticity
  • impending sense of mortality, especially in final two weeks
  • death from sepsis after surgery to reposition Baclofen pump
Baclofen Pump System

Inside Information:

  • This was an emotionally charged case with jury selection taking three months and testimony adduced over a five and a half month period.
  • In addition to severe scoliosis, Edward suffered since childhood from a disease known as KTW Syndrome (a rare congenital syndrome of vascular malformations and soft tissue and bone hypertrophy) and had undergone numerous surgeries prior to 11/22/02. He had been, though, an active, athletic child who played golf, paint ball and ice hockey with his friends.
  • Edward had learned to cope with his paralysis, driving a car with hand controls and enrolling at college graduating magna cum laude (degree awarded posthumously).

On September 21, 2011 Mark Fabiano, then 49 years old, was injured when he fell 18 feet to the pavement from a scaffold that he was helping to erect under a New York State Thruway bridge in Catskill.

In the ensuing Court of Claims lawsuit, Mr. Fabiano’s motion for summary judgment of liability under Labor Law section 240(1) was granted, and the matter then proceeded to a bench trial on damages.

The judge awarded claimant pain and suffering damages in the sum of $1,000,000 ($400,000 past – 4 1/2 years, $600,000 future – 25 years). Claimant appealed arguing that the award was inadequate; however, it was affirmed in Fabiano v. State of New York  (3rd Dept. 2019).

Here are the injury details:

  • T-12 vertebral body chip and L-1 compression fracture
  • pain and radiculopathy requiring painkillers, two rounds of epidural injections, six months of physical therapy and use of lumbar sacral support belt
  • decompressive lumbar laminectomy surgery to fuse the T-12/L-1 vertebral bodies with titanium screws permanently implanted
  • surgical implantation of permanent spinal cord stimulator
  • continuing chronic and progressive pain and inability to return to work or meaningfully engage in recreational activities previously enjoyed such as fishing and playing with grandchildren
Lumbar Compression Fracture

Evaluating damages, the trial judge noted that claimant conceded that he:

  • declined medical attention of the day of the accident and did not seek medical attention for nine days
  • drives and several times a week cares for his 18 month old grandchild
  • had pre-existing chronic issues in the area of the fracture and,
  • was hospitalized only for two days

Additional damages were awarded for (a) medical expenses in the sum of  $580,298   ($253,098 past, $327,200 future – 25 years) and (b) loss of earnings in the sum of $813,000 ($295,000 past, $518,000 future – eight years).

Inside Information:

  • Claimant also suffered a severely lacerated lip in the fall which required suturing and left him with a scar (that was covered by facial hair at trial) and three broken teeth that required dental crowns.
  • Claimant sought to recover damages for the aggravation of a pre-existing condition of his cervical spine which was attributable to previous trauma and/or age related degeneration) but the judge ruled that there was insufficient proof and made no award of any damages specific to that aspect of the claim.

On June 4, 2007, Rowan Lewis was a front seat passenger in a van on a parkway in New Jersey on his way to work. In a single car accident, the van spun out of control and flipped over on its back.

In his ensuing lawsuit against the van owner, Mr. Lewis claimed that he sustained rib, knee and shoulder injuries. He was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

The Kings County jury awarded pain and suffering damages in the sum of $1,050,000 ($750,000 past – six years, $300,000 future – 19 years).  In a post-trial decision, the award for past pain and suffering was found to be excessive and it was reduced to $300,000.

The $600,000 total reduced pain and suffering award has been affirmed on appeal in Lewis v. Vertex Construction Corp. (2d Dept. 2019).

Here are the injury details:

  • Rib: Fractured 7th rib
  • Knees: torn menisci and cartilage damages; arthroscopic surgeries to remove torn pieces and smooth out cartilage in each knee
  • Shoulders: rotator cuff and labral tears, acromioclavicular (A.C.) joint damage, arthroscopic surgeries in each shoulder to excise torn pieces and one-half inch of bone

At the time of the accident, plaintiff was a 46 year old construction worker with no prior injuries to his ribs, knees or shoulders. Thereafter, though, he was unable to return to work, had a significant and had permanent loss of range of motion in his knees and shoulders with continuing pain and disabilities.

Defendant argued that plaintiff’s only significant injury was the rib fracture (which concededly healed on its own after a few weeks) and that any injuries to plaintiff’s knees and shoulders were not caused by accident but were instead pre-existing and the result of degenerative changes over the years.

After minor treatment at a hospital on the day of the accident (where plaintiff’s only complaint of pain was regarding his rib), plaintiff stayed at home resting and did not seek any further medical attention until one month later when he first made complaints about both knees and both shoulders. He underwent physical therapy for about six months and was thereafter referred for MRIs and to an orthopedic surgeon who operated on plaintiff four times between 8/29/08 and 6/26/09.

Plaintiff’s treating orthopedic surgeon testified that all of his injuries were acute, caused by the accident and left him with: (a) a grave prognosis of almost certainly developing serious arthritis in his knees, (b) permanent structural damage to his shoulders and (c) permanent disability in terms of moving his arms.

Defendant’s expert orthopedic surgeon (who examined plaintiff once about three years after the accident) did not testify; instead, the defense centered around the testimony of its expert radiologist who examined the MRI films (but not the plaintiff himself). She testified that there were no signs of acute trauma in any of plaintiff’s knees or shoulders; rather, there were merely degenerative changes in each.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $100,000 (the defendant’s insurance coverage policy limit) against which there was no offer at all until mid-trial when defense counsel offered $25,000 that was rejected. Plaintiff will likely pursue a so-called bad faith claim seeking to recover from the carrier the entirety of the judgment even though its policy limit is only $100,000.
  • The trial judge advised the jury that they may make an adverse inference against the defendant because there was no explanation for its failure to present as a witness its expert orthopedic surgeon who examined the plaintiff before trial.
  • In summations, defense counsel argued that plaintiff’s only injury was the healed rib fracture and he suggested that $30,000 would be a fair damages award. Plaintiff’s counsel argued that he should be compensated for all of his injuries asked for an award of $1,500,000 ($900,000 past, $600,000 future).
  • Plaintiff did not assert a claim for loss of earnings.

 

On February 6, 2014, David Flowers was working at a construction site in Buffalo when he was struck by a load of falling steel rebar causing injuries to his shoulder.

In his ensuing lawsuit, the 34 year old ironworker plaintiff was granted summary judgment on his Labor Law 240(1) claim against the project owner and general contractor.

In the damages trial, the jury awarded plaintiff pain and suffering damages in the sum of $150,000 (all past – three  years), past medical expenses (but no future medical expenses) in the sum of $40,205 plus lost earnings damages in the sum of $1,682,750 ($240,516 past, $1,442,234 future – 18 years).

In Flowers v. Harborcenter Development, LLC (4th Dept. 2019), the appellate court vacated the award of damages for lost earnings and ordered that a new trial be held on damages for for past and future lost wages only.

Plaintiff was earning about $64,000 a year as an ironworker before the accident. Immediately following, he was unable to work at all. A year later, in April 2015, he returned to light duty ironwork as a supervisor but only for a couple of hours a day for a week and a half. He was unable to continue and his treating physicians testified he was permanently unable to return to ironwork thereafter. He was, though, cleared for light duty sedentary work.

Three years after the accident, about six weeks prior to trial, plaintiff was hired as an assistant town assessor, a part-time (19.5 hours a week) mostly sedentary position earning $11 an hour, that he was engaged in at the time of trial and that he hoped would become full-time.

Defendants sought a so-called mitigation charge whereby the trial judge would have instructed the jury that plaintiff had a duty to mitigate his earnings loss damages by taking advantage of any reasonable employment opportunity he may have had (such as seeking vocational rehabilitation assistance and/or obtaining a better, higher paying and sooner acquired job). The trial judge declined to make the charge, in part, because plaintiff had in fact obtained a light-duty job and had thereby discharged his obligation to mitigate his earnings losses. The appellate court, though, found that the mitigation charge should have been given because there was a question of whether the part-time job that plaintiff took was a reasonable mitigation of his damages.

Inside Information:

  • The $150,000 pain and suffering award was not challenged on appeal. It was based upon the fact that plaintiff sustained a ligament tear in his shoulder that required two arthroscopic surgeries to repair. He also claimed to be suffering from post-traumatic stress disorder (PTSD).
  • In an October 2016 car loan application, plaintiff falsely stated that he was then employed as an ironworker so that he’d show enough earnings to qualify for the loan. In fact, he was then unemployed.
  • The part-time assessor’s job plaintiff held at the time of trial was arranged for him by his attorney in this lawsuit, a fact the defense contended, unsuccessfully, represented a violation of the rules of professional conduct governing attorneys.