New York Injury Cases Blog | Medical Malpractice Law

Construction Worker’s Judgments Affirmed on Appeal

By John Hochfelder on December 6, 2018 Posted in Hip and Pelvis Injuries, Knee Injuries

On December 9, 2011 Juan Munoz was working for a construction company at 241 Fifth Avenue in Manhattan when he fell through the partially demolished fourth floor to the third floor sustaining injuries to his knee, hip and wrist.

241 Fifth Avenue

In his ensuing lawsuit against the building’s owner and general contractor, Mr. Munoz was granted summary judgment on the issue of liability pursuant to Labor Law Section 240(1) and the matter proceeded to a trial on damages only. The Queens County jury awarded plaintiff pain and suffering damages in the sum of $709,000 ($80,000 past – four years, $629,000 future – 50 years).

Both parties appealed. Defendants argued that (a) the case should be dismissed in its entirety because plaintiff was a recalcitrant worker whose own conduct was the sole proximate cause of his accident and injuries and (b) the future damages award was excessive. Plaintiff countered that (a) summary judgment on liability was appropriate and (b) the future damages award was inadequate.

In Munzon v. Victor at Fifth, LLC (2d Dept. 2018), the judgments have been affirmed.

Here are the injury details:

Left Knee: fracture of the medial tibial plateau, torn ligaments, severely torn meniscus
Left Hip: diffuse posterior labral tear
Left Wrist: partially torn small ligaments (requiring a brace for seven months) – pain resolved within two years

On March 16, 2012 plaintiff underwent left knee arthroscopic surgery to reconstruct his anterior cruciate ligament with a patella tendon autograft, as well as a meniscectomy and chondroplasty.

Plaintiff attended physical therapy three times a week for 11 months but, on February 8, 2013 he underwent a second arthroscopic surgery which involved debridement of damaged tissue (followed by eight more months of physical therapy). He ambulated only with a brace or cane for about two years when he finally returned to work.

At trial in February 2016, plaintiff claimed he still had intermittent hip pain but his knee caused him daily pain and required occasional use of a cane. His treating orthopedic surgeon testified that Mr. Munoz, then 30 years old, had developed osteoarthritis in his knee and would by the age of 40 require total knee replacement surgery.

Plaintiff did not require surgery for either his hip or wrist injuries and his physical therapy focused almost entirely on his knee injury. The defendants argued that in view of the paucity of treatment regarding plaintiff’s hip and wrist, a good recovery from his knee injury, plaintiff’s return to work, the lack of objective medical proof of osteoarthritis and pre-existing repetitive stress from construction work, the award for future pain and suffering was excessive.

Plaintiff argued that the future damages award was inadequate in view of his need for total knee replacement surgery, continuing pain and inability to engage in many activities he had previously enjoyed such as exercising, playing soccer and taking long walks.

Inside Information:

Plaintiff’s pre-verdict settlement demand was $1,000,000 against an offer of $200,000.
The jury returned its verdict in one hour.

Jaw Fracture Pain and Suffering Award Substantially Increased

By John Hochfelder on December 5, 2018 Posted in Facial Injuries

On August 14, 2007 Remigiusz Nawrocki was working for a plumbing contractor at a construction site at 205 Huron Street in Brooklyn. While on a ladder drilling holes in a wall, Mr. Nawrocki, then 28 years old, fell to the ground sustaining significant jaw injuries.

At an inquest on December 9, 2015 in his ensuing lawsuit against the owner of the premises (whose answer to the complaint was stricken because of repeated failures to appear at court conferences), a judge awarded plaintiff pain and suffering damages in the sum of $50,000 ($25,000 past – eight years, $25,000 future – unspecified).

Plaintiff appealed, arguing that the damages award was inadequate. In Nawrocki v. Huron Street Development LLC (1st Dept. 2018), the pain and suffering award was increased to $500,000 ($250,000 past, $250,000 future).

Here are the injury details:

open mandible and condylar fractures and impacted tooth
facial lacerations requiring sutures and plastic surgery
six day hospital admission
open reduction and internal fixation with wires, screws and a six hole plate

jaw wired shut and unable to eat without straw for eight weeks
surgical removal of wires and screws
medical treatment completed within three months of the accident but plaintiff claimed continuing pain and had some resulting scars

Appellate Court Affirms Large Reduction of Passenger’s Pain and Suffering Award in Shoulder Injury Case

By John Hochfelder on December 3, 2018 Posted in Shoulder Injuries

On December 15, 2011, Charlotte Thompson was a front-seat passenger in a minivan involved in an accident with another vehicle at the intersection of Elm Drive and Pinewood Road in Roslyn. The other driver was found to be at fault for the accident which caused shoulder injuries to the then 29 year old Ms. Thompson.

In her ensuing lawsuit, Thompson was awarded pain and suffering damages in the sum of $1,150,000 ($400,000 past – four years, $750,000 future – 25 years). The Bronx County trial judge agreed with the defense that the award was excessive and it was reduced to $550,000 ($300,000 past, $250,000 future).

Plaintiff appealed; however, in Thompson v. Toscano (1st Dept. 2018), the reduction to $550,000 was affirmed.

Here are the injury details:

Plaintiff declined medical attention at the scene; emergency room treatment next day with injection and medication for pain
Follow-up treatment over seven months with orthopedic surgeons, physical therapy and additional cortisone injections
Arthroscopic surgery on 9/19/12 to repair labral tear

Additional six months of physical therapy
35% permanent loss of range of motion
Adhesive capsusulitis (frozen shoulder)
Three keloid scars at surgical site
Repeat arthroscopy needed within five years to break up scar tissue (if no improvement in plaintiff’s condition)

The defendant’s expert orthopedic surgeon testified that the intra-operative photographs of plaintiff’s shoulder were unclear as to the presence of a labral tear and, in any event, there were no findings on them that “could contribute to the plaintiff’s motor vehicle accident.” Since the expert’s exam took place only a month after plaintiff’s surgery, the expert could not examine plaintiff’s shoulder and did not measure range of motion because plaintiff’s arm was still in a sling.

Inside Information:

The lawsuit was tried in Bronx County because that was the county of plaintiff’s residence.
Before plaintiff came to the U.S., she’d been the victim of a police crime in Jamaica where she was assaulted, raped and then sustained a gunshot wound to her face requiring complex jaw surgeries. In his opening statement, plaintiff’s attorney mentioned that his client is “on political asylum here from Jamaica.” The judge refused to allow any further mention of the asylum issue.

Medical Malpractice Verdicts on Liability and Damages Upheld on Appeal against Obstetrician-Gynecologist

By John Hochfelder on November 28, 2018 Posted in Brain Injuries, Medical Malpractice

Anthony Bianco was born on December 31, 1999 at Winthrop University Hospital in Mineola. He was delivered by means of a vacuum extraction under the supervision of Steven Sherwin, M.D., an obstetrician-gynecologist.

Years later, Anthony’s mother, Mauro Bianco, commenced a medical malpractice lawsuit against her physician claiming that Dr. Sherwin improperly performed the vacuum extraction and that as a result Anthony sustained brain injuries which caused permanent neurocognitive deficits. A Nassau County jury agreed and awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past – 15 years, $1,500,000 future – 60 years).

In Bianco v. Sherwin (2d Dept. 2018), both the liability and damages verdicts have been upheld.

Here are the injury details:

upon delivery, Anthony was noted to have soft tissue swelling and blood under the skin of his skull, vacuum marks and lacerations on his head and a two inch by two inch large cephalohematoma on his head
a CT scan revealed a subdural hematoma
at the age of three years, Anthony had difficulties understanding his speech, displayed language problems and underwent a procedure to improve tongue mobility and improve his speech
at the age of seven years, Anthony was diagnosed with an unspecified brain dysfunction because he was not developing normal speech and language skills
in second grade, Anthony was in a special education class, struggling and receiving special assistance to try to keep up in school
permanent absence of higher level of thinking, according to plaintiff’s expert neuropsychologist, with low average intelligence and mildly impaired memory

Plaintiff’s expert testified that Anthony will never be capable of holding other than an entry-level job; however, the jury declined to award any damages for impairment of earning capacity.

Defendants’ medical experts contended that there was no malpractice, the delivery was properly performed and that it was not possible to have brain damage that only manifested itself years later in learning deficits.

Inside Information:

Anthony did not testify or even appear in court; nor was his deposition testimony read to the jury.
Plaintiff’s expert conceded that the injury in this case is “microscopic” and there was no blood in the brain itself.
Mrs. Bianco continued to treat with Dr. Sherwin and he delivered her daughter in 2002.

Judgment Against Chiropractor Affirmed

By John Hochfelder on October 13, 2018 Posted in Economic Damages, Medical Malpractice, Neck Injuries

On April 20, 2011, Thomas Tornatore, then 51 years old, was wrestling with his nephew when he sustained an injury to the base of his neck. Five days later, Mr. Tornatore sought treatment from a chiropractor. After his fourth and final treatment, which included chiropractic manipulations, he had severe pain in his neck that radiated down his arm. Within a week, he was diagnosed by an orthopedic surgeon and told he had a herniated disc and needed spinal surgery.

In his ensuing medical malpractice lawsuit against the chiropractor, Mr. Tornatore claimed that the manipulations were inappropriate because plaintiff suffered from pre-existing conditions, including a degenerative cervical spine with spinal stenosis. The defense argued that (a) plaintiff was properly treated and (b) the treatment did not injure plaintiff or worsen his pre-existing condition in view of the testimony of the defendant’s medical expert contending that spinal MRI scans from before and after the treatment did not show any significant change.

The Onondoga County jury agreed with plaintiff finding the defendant negligent and awarding pain and suffering damages in the sum of $500,000 ($200,000 past – four and a half years, $300,000 future – 20 years) and future medical and life care expenses in the sum of $903,407 (20 years).

Defendant appealed, arguing mainly that the future medical and life care expenses award was excessive and, in any event, it should be vacated because the testimony of plaintiff’s life care expert was wrongfully admitted.

In Tornatore v. Cohen (4th Dept. 2018), defendant’s arguments were rejected and the judgment was affirmed in all respects.

The appellate court’s opinion does not discuss plaintiff’s injuries. Here are the injury details:

herniated disc at C5-6 with large sequestered fragment compressing nerve, caused by defendant’s aggravation of plaintiff’s pre-existing degenerative cervical spine

decompressive surgery with fusion of cervical spine at C4-5, C5-6 and C6-7
surgical revision of hypertonic scars from first surgery
permanent residual neck pain and stiffness with limitation of range of motion
difficulty sleeping and driving, unable to lift grandchildren

The award for future medical and life care expenses was based upon the testimony of plaintiff’s vocational rehabilitation specialist and life care planner. It included $474,000 for 20 years of medications (including Gabapentin, Tramadol and Hydrocodone) and $268,000 for pain management (including epidural injections 3-4 times a year at a cost of more than $3,000 each). The jury rejected parts of plaintiff’s claims for future expenses and awarded nothing at all for a spinal cord stimulator and surgery to implant it.

Inside Information:

Plaintiff’s witnesses included her orthopedic surgeon and internists in addition to her expert chiropractor and life care planner. The defense called only an expert neuroradiologist.
Plaintiff’s criminal history that defendant was precluded from using related to two matters. One was a 1979 youthful offender adjudication on sodomy charges following a consensual relationship with another then under-18 year old boy. The other was a 1997 charge of soliciting a minor for sex in which plaintiff was found guilty by a jury but adjudication of guilt was withheld by the judge and he was given probation.
The prior MRI scan reviewed by the defendant’s medical expert was from 2002 after plaintiff sustained a work-related injury. He was asymptomatic and did not undergo any treatment between 2002 and the current incident.

Appellate Court Affirms Increase in Pain and Suffering Award to Mesothelioma Victim

By John Hochfelder on October 8, 2018 Posted in Mesothelioma

Thomas McGlynn worked as a shipfitter and laborer in shipyards and aboard ships in New York and New Jersey from 1976 until the late 1980’s. During that time, he was exposed to asbestos-containing products including valves manufactured by Jenkins Bros.

In April 2015, Mr. McGlynn, then 74 years old, began suffering from what was later (in May 2016) diagnosed as pleural mesothelioma.

He commenced a lawsuit against Jenkins and others in August 2016 and one year later, a Manhattan jury (a) determined that Jenkins failed to provide adequate warnings about the hazards of asbestos exposure in its products and (b) awarded pain and suffering damages in the sum of $3,300,000 ($1,800,000 past – 28 months, $1,500,000 future – six months to one year).

Plaintiff successfully argued in a post-trial motion that the pain and suffering award was unreasonably low. The trial judge ordered an increase in pain and suffering damages to $6,500,000 ($4,000,000 past, $2,500,000 future).

In Idell v. Aerco International, Inc. (1st Dept. 2018), the appellate court affirmed the increase in past pain and suffering damages to $4,000,000 but reinstated the jury’s $1,500,000 award for future pain and suffering. Thus, the total pain and suffering award stands at $5,500,000 ($4,000,000 past, $1,500,000 future).

The evidence of plaintiff’s pain and suffering was supported by the testimony of a physician and two of plaintiff’s close friends and included the following facts:

three major surgeries (including a pleurectomy/decortication, a two part procedure involving opening the chest cavity and removing the pleural lining around the lungs and then removing any visible tumor masses)

eight weeks in hospital for surgeries
multiple drainings of liters of pleural fluid
six rounds of chemotherapy and radiation with severe side effects (especially, gastrointestinal)
inability to hold food or liquids down, or breathe without forced oxygen
breakthrough pain, despite pain medications, with resulting inability to sleep
difficulty breathing, including “air hunger”, causing frequent struggles to catch breath
hospice admission after attending trial only for opening statement
death 8/31/17 (13 days after jury verdict)

Inside Information:

After Mr. McGlynn’s death, his close family friend and caregiver Anna Idell, was named executrix of his estate.
Jenkins was found to have acted recklessly because for decades it had personal knowledge of the hazards of asbestos and failed to place any warnings on its asbestos containing valves. That finding made Jenkins liable for the full amount of the verdict despite the fact that it was apportioned only 15% of the liability (with five other defendants accounting for the other 85%).
In their summations, plaintiff’s counsel suggested that the jury award $28,000,000 whereas defense counsel suggested $750,000.

Damages Verdict Affirmed for Hip and Knee Injuries

By John Hochfelder on September 17, 2018 Posted in Hip and Pelvis Injuries, Knee Injuries

On May 26, 2010, Anthony Rivera was driving his car on Long Ridge Road in Pound Ridge when another car made a left turn and crashed into him. Mr. Rivera, then 30 years old, sustained significant hip and knee injuries.

Mr. Rivera sued the driver and owner of the other vehicle and was awarded summary judgment of liability. The case then proceeded to a trial to determine the amount of damages.

The Westchester jury awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($300,000 past – five years, $1,000,000 future – 40 years). He was also awarded damages for medical expenses ($170,000 past, $240,000 future) and loss of earnings ($75,000 – past). The awards have been affirmed in Rivera v. Kolsky (2d Dept. 2018).

Here are the injury details:

Intra-articular comminuted fracture dislocation of left hip (posterior wall acetabular fracture plus osteochondral femoral fracture) requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin, open reduction internal fixation of the acetabular fracture with a bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture
Three week emergent hospital admission followed by five week admission to nursing home for rehabilitation
Continuing pain and limited range of motion in hip and post-traumatic arthritis requiring hip replacement surgery within four years
Left knee torn meniscus requiring total knee replacement surgery within three to five years

A Post-Op X-Ray Similar to Plaintiff’s

Before the accident, plaintiff had been working at Home Depot earning about $25,000 a year. He was out of work for three years after the accident when he returned to Home Depot in the kitchen design department. There was no claim for future loss of earnings.

The defendants’ theme at trial was that plaintiff exaggerated his injuries. They conceded he sustained a significant hip injury with residuals but argued that “he’s driving, he’s going to work, he’s not using a cane … he does everything everybody else does” and he deserves no compensation for his alleged knee and pre-existing back injuries. The verdict sheet contained a specific question as to whether the accident was a substantial factor in bringing about the injury to plaintiff’s back and they answered “no.” As to the knee, an MRI shortly after the accident disclosed a torn meniscus but two years later, another MRI was taken and plaintiff’s treating doctor then opined there was no meniscal tear and he elected not to perform an arthroscopy. Plaintiff’s medical expert at trial disagreed. The defense position was that there was no tear and any knee pain plaintiff was experiencing was due to his morbid obesity.

Inside Information:

Defendants opposed plaintiff’s pre-trial motion for summary judgment as to liability claiming that (a) winding, blind curves at the accident location caused the defendant driver to be unable to see the plaintiff’s vehicle and (b) plaintiff may have been speeding. These arguments were rejected and plaintiff’s motion was granted.
After plaintiff and his medical expert testified, the defendants rested without calling any witnesses.
In his summation, plaintiff’s attorney suggested $6,000,000 for pain and suffering damages; defense counsel simply stated that the jury should award what is reasonable or adequate (for the hip only), adding “He’ll probably blow it on something anyway, but at least give him what he’s entitled to for the hip.”
Plaintiff’s pre-trial settlement demand was $1,000,000 against an offer of $350,000.
This case was hard fought by one of New York’s most highly regarded plaintiff personal injury lawyers, Michael Ronemus and a worthy counterpart from the defense side, Robert Ondrovic.

Verdict Affirmed for Passenger Who Fell Inside Moving Bus

By John Hochfelder on September 10, 2018 Posted in Back Injuries, Knee Injuries, Neck Injuries

On April 2, 2012, at about 5 p.m., Apolonia Castillo boarded a city bus on 57th Avenue between 97th Place and 98th Street in Queens. After paying her fare, she fell and sustained injuries to her left knee and spine.

Ms. Castillo, then 72 years old, sued the bus company claiming that the driver caused her to fall when he pulled away from the bus stop while she was still standing at the fare box in the front of the bus, not allowing her to safely move to a seat before the accident.

Before trial, defendant moved for summary judgment claiming that (a) plaintiff was already seated when the driver accelerated away from the bus stop and (b) plaintiff’s injuries failed to meet the statutory threshold under Insurance Law Section 5102. The motion was denied in its entirety.

The Queens County jury agreed that the driver was fully at fault. In the immediately ensuing second phase of the trial, the jury found that plaintiff sustained both a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member and they awarded plaintiff pain and suffering damages in the sum of $1,500,000 ($500,000 past – three years, $1,000,000 future – 10 years). Both the liability and damages verdicts have been affirmed on appeal in Castillo v. MTA Bus Co. (2d Dept. 2018).

Here are the injury details:

Left Knee – torn lateral and medial menisci requiring arthroscopic surgery (menisectomies, chondroplasty of the trochlear groove, lysis of adhesions and synovectomy) with continued difficulty walking (unable to tolerate more than one block due to pain)
Cervical Spine – disc bulges at C2-3 through C7-T1 with diminished range of motion
Lumbar Spine – disc bulges at L3-4 and L5-S1 with radiculopathy causing weakness and loss of sensation in left leg
Post-Concussive Syndrome

Six months before the accident, plaintiff reported to her primary care physician that she had knee pain and she was referred for an orthopedic evaluation (which did not occur). There were no further complaints of knee pain in the records of subsequent pre-accident visits to her physician and plaintiff testified that before the accident she had only mild knee discomfort on an infrequent basis. Plaintiff’s orthopedic surgeon opined that (a) her mild symptoms prior to the accident were greatly and severely worsened due to and following the accident and (b) she is at great risk for progressive breakdown of her knee’s remaining articular cartilage and will ultimately require a total knee replacement.

Inside Information:

Prior to the accident, plaintiff had intermittent neck pain for many years due to a motor vehicle accident when she was 35 years old.
Plaintiff’s pre-trial settlement demand was $750,000; there was no offer.

Appellate Court Reinstates Jury’s Shoulder Injury Pain and Suffering Damages Verdict After Trial Judge’s Reduction

By John Hochfelder on August 30, 2018 Posted in Shoulder Injuries

On October 16, 2013, Mary Ann Greblewski tripped and fell over a concrete wheel stop in Highland Hospital’s parking garage in Rochester. Ms. Greblewski, then 80 years old, sustained shoulder injuries and sued the hospital claiming that the premises was dangerous because there was inadequate lighting in the garage and the wheel stop was improperly positioned, as it extended into the pedestrian walkway.

The Accident Location

The hospital sought pre-trial dismissal of the case arguing that the wheel stop was in its proper position, the garage was adequately illuminated and, in any event, the wheel stop was open and obvious. The motion was denied and the case proceeded to trial at which the Chemung County jurors found the hospital fully at fault for the accident and they awarded plaintiff pain and suffering damages in the sum of $550,000 ($250,000 past – three years, $300,000 future – 10 years).

The trial judge determined that the award was excessive and ordered a reduction to $225,000. In Greblewski v. Strong Health MCO, LLC (3d Dept. 2018), the liability verdict was affirmed and the jury’s $550,000 award was reinstated.

After she fell, plaintiff was taken by stretcher to the emergency room where x-rays of her left shoulder disclosed that she’d sustained a four-part fracture of her proximal humerus.

Initially treated with a sling for six weeks and assisted by home health aides, Ms. Greblewski then underwent a 12 week course of physical therapy. At the time of trial, she was still in some pain but had significant deficits and disabilities including:

permanent range of motion losses in shoulder (e.g., can only lift arm to 110 degrees out of a possible 180 degrees)
limited strength in her left hand
difficulty curling her hair, bathing and getting dressed
unable to provide same level of care to her disabled adult daughter as she used to for almost 60 years

A significant element of of the damages testimony presented at trial was plaintiff’s loss of enjoyment of life and emotional pain and suffering caused by her inability to care for her daughter Cathy who has had cerebral palsy since birth, is confined to a wheelchair and requires assistance with all activities of daily living. Plaintiff had been Cathy’s primary caregiver – “her greatest joy and greatest duty.”

The defense argued that the trial judge’s reduction of the damages award did not go far enough because plaintiff did not require shoulder surgery (she was not a good candidate due to her age). In response, plaintiff argued that the fact that she was not a surgical candidate does not diminish the value of her case; rather, it enhances it because plaintiff did not have the option of surgical intervention to help her regain mobility in her shoulder joint.

Inside Information:

The day before her accident, Ms. Greblewski, along with her husband and two adult daughters, had driven from Elmira to a Rochester hotel as she was scheduled to undergo early the next morning an outpatient vulvectomy for vulva cancer at the defendant’s hospital. After she was treated for her shoulder in the ER, Ms. Greblewski opted to undergo the vulvectomy. She was cleared for surgery, underwent the procedure successfully and was discharged the next day with instructions to follow up with a local orthopedic surgeon.
The trial judge instructed the jury that plaintiff’s life expectancy, according to federal government statistics, was 7.1 years; however, he also told the jurors that the figure was not binding upon them and they may consider it together with their own experience and the evidence they heard regarding the condition of plaintiff’s health, habits and activities. In doing so, the jury set plaintiff’s future pain and suffering period at 10 years.
In summations, defense counsel contended that the hospital was not negligent but that if the jury should disagree then $30,000 for plaintiff’s pain and suffering would be fair; plaintiff’s counsel suggested $500,000.

Verdict for Plaintiff Affirmed in Case of Unwitnessed Fall Leading to Death Four Months Later

By John Hochfelder on August 29, 2018 Posted in Wrongful Death

On September 3, 2013, at about 11 p.m., William Tyrell fell down an exterior concrete 16 step staircase at 243 Vrooman Avenue, a two story, two apartment rental building in Amsterdam, New York. Mr. Tyrell, then 77 years old, had been visiting the upstairs tenant. He was found at the bottom of the staircase, unconscious. There were no witnesses to the fall.

243 Vrooman Avenue, Amsterdam, NY

Mr. Tyrell was rushed by ambulance to the local hospital where he was conscious upon admission and diagnosed with the following injuries:

basilar skull fracture
subdural cranial hematoma
cerebral hemorrhage
fractured occipital bone

Within a few hours, Mr. Tyrell was transferred by ambulance to Ellis Hospital in Schenectady because his head injuries required a higher level of care than the local hospital could provide. There, he suffered seizures and a craniotomy was performed to alleviate the hematoma. He was placed on a ventilator and then in a chemically induced coma. Unsuccessful weaning from the intubation resulted in a tracheostomy about a month after the fall.

On October 11, 2013, Mr. Tyrrell was transferred to Pathways, a rehabilitation facility in Niskayuna. He returned to Ellis Hospital from Pathways to deal with critical health issues on three occasions in the next three months and again on January 5, 2014, when he died from his severe brain injuries.

Two months before Mr. Tyrell’s death, he commenced a lawsuit against the building owner claiming he fell because the staircase was defective, dangerous, improperly repaired in the past, non-code compliant and deteriorated with missing or broken chunks on several different steps. There was no opportunity to take Mr. Tyrell’s deposition because his ability to communicate was seriously compromised while he was lethargic, intubated, in a coma and once his tracheostomy was performed.

The action was tried in Fulton County and the jury rendered its verdict on January 13, 2017 finding that defendant was negligent and awarding pain and suffering damages in the sum of $325,000 (four months).

The defendant appealed challenging the verdict as being unsupported by sufficient evidence, arguing that plaintiff could not establish the cause and location of decedent’s fall and, therefore, any finding of causation would have been improperly based upon speculation. In Tyrell v. Pollak (3d Dept. 2018), the appellate court rejected defendant’s arguments and the verdict was affirmed.

Inside Information:

There was no challenge by either party as to the amount of the damages awarded by the jury.
The building tenant visited by Mr. Tyrell testified that before the accident she had complained at least five times about the condition of the stairs to the defendant’s property manager and called it “a death trap waiting to happen.”
Defendant’s investigator photographed the scene after the accident, including previously repaired steps in the middle (steps six and seven) that had flaked and crumbled. There was blood from the decedent both on those middle steps and at the bottom two steps. The defense position at trial was that Mr. Tyrell fell on one of the bottom two steps. The trial judge called it “outrageous” and incredible when the defense failed to produce the photograph of the bloody, crumbled middle steps and the investigator claimed she had no memory of conducting the investigation.