On August 11, 2014, Mirson Pimenta, then a 42 year old construction worker, was injured on the job creating a foundation for a new building at 1504 Coney Island Avenue in Brooklyn. He was bending over to pick up some materials from the floor when a 15 foot aluminum ladder fell over and hit him in the back.

Mr. Pimenta claimed he sustained injuries to his back, neck and knee and he was granted summary judgment as to liability under Labor Law Section 240(1). In the ensuing trial on damages only, the Kings County jury awarded plaintiff pain and suffering damages in the sum of $17,000,000 ($2,000,000 past – four years, $15,000,000 future – 33 years).

The trial judge agreed with he defendants that the awards were excessive and she reduced the pain and suffering damages to $3,250,000 ($1,000,000 past, $2,250,000 future). In Pimenta v. 1504 Cia, LLC (2d Dept. 2021), the appellate court affirmed the trial judge’s reduction.

Here are the injury details:

  • Back – decompressive laminectomy and partial discectomy at L5-S1 herniated disc; implantation of spinal cord stimulator
  • Neck – fusion surgery at C5-6 herniated disc with placement of biomechanical device, bone grafting, plate and screws
  • Knee –  partial anterior cruciate ligament tear, meniscal tears; arthroscopic surgery

Plaintiff claimed continuing pain, restricted ranges of motion and extremely limited activities in all of his injured areas. His treating surgeons testified that the accident caused the injuries, they are permanent and plaintiff will in the future need revision spinal surgeries, replacement of the stimulator’s battery and pain medications and physical therapy for the rest of his life.

The defendants argued that plaintiff’s injuries (other than a mere back sprain) were not caused by the accident with the ladder; they noted that plaintiff did not complain about his neck or knee for several months after the accident and they suggested his neck injury was the result of a fistfight plaintiff was involved in three months after the ladder incident.

A week after his accident, plaintiff returned to light duty for two months after which he worked intermittently until May of 2015. He was unable to work thereafter and the jury awarded him damages for lost earnings in the sum of $2,026,741 ($222,206 past, $1,804,535 future – 21 years). These awards were not disturbed by the trial judge and were affirmed on appeal.

Inside Information:

  • Plaintiff testified through a Portuguese interpreter.
  • In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $15,000,000 ($2,000,000 less than the jury awarded).
  • Plaintiff was also awarded future medical, hospital and physical therapy expenses in the sum of $930,516. Defendants did not challenge these awards.

 

On November 11, 2011, Davon Olive, then 12 years old, slipped and fell on a puddle of water on the platform of the Grand Army Plaza subway station in Brooklyn.

In the ensuing lawsuit, a Brooklyn jury determined that the defendant transit authority was at fault because it knew or should have known there was water on the floor that made the platform area unsafe. The jury then awarded pain and suffering damages in the sum of $600,000 ($200,000 past – six years, $400,000 future – 56 years).

In Olive v. New York City Transit Authority (2d Dept. 2021) both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • right hip bone bruise – treated conservatively with hospital, clinic and doctor visits, physical therapy and over the counter medication
  • partial tear of anterior labrum in hip and iliotibial band (“IT”) syndrome

  • diagnosed five years later with trochanteric bursitis followed by steroid injections and more physical therapy
  • arthroscopic surgery on April 6, 2017 – an endoscopic bursectomy to loosen the IT band and extract inflammatory material from the bursa
  • continuing and permanent pain with antalgic gait limiting walking and other activities

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award $2,100,000.
  • The jury found that plaintiff had been negligent, presumably for fooling around with a fellow student on the platform, but that his negligence was not a substantial factor in causing his accident.

On April 2, 2014, Nathan Wasserberg was admitted to Menorah Center for Rehabilitation & Nursing Care in Brooklyn after a two month hospital stay due to diabetes that led to a toe amputation, sepsis and other conditions. He was unable to walk or use his arms, mumbled to communicate and could not consume any food or drink orally.

Menorah Center for Rehabilitation & Nursing Care

On April 10th, staff found Mr. Wasserberg  unresponsive and in cardiac arrest. CPR was started and 911 was called. He was revived by EMS who took him from the nursing home to a hospital where he died on April 30th at the age of 73 years old.

Mr. Wasserberg’s son sued Menorah claiming that its staff was negligent because they failed to check his father’s airway when they found him unresponsive (EMS personnel, who arrived about 12 minutes later, found his airway was obstructed by a piece of meat which they dislodged at the scene).

The Kings County jury determined that defendant’s staff failed to check Mr. Wasserberg’s airway and that their failure was a substantial cause of his resulting injury and death. The jury then awarded pre-death conscious pain and suffering damages in the sum of $300,000.

In Wasserberg v. Menorah Center for Rehabilitation & Nursing Care (2d Dept. 2021) both the liability and damages verdicts have been upheld.

Here are the injury details:

  • asphyxiation for about 12 minutes (before EMS dislodged the airway obstruction)
  • 11 days of conscious pain and suffering in the hospital

As to damages, the defense contended that (a) the decedent was in such a debilitated state during his time at Menorah that he was in a partial vegetative state, not fully responsive and had a significantly diminished ability to experience any pain from his airway obstruction and (b) he was unconscious during his entire time at the hospital. Plaintiff, while not claiming that defendant was liable for the airway obstruction itself, contended that (a) Mr. Wasserberg was conscious when he asphyxiated with his airway obstructed and (b) for his first 11 days at the hospital, he was responsive to verbal, tactile and panful stimuli.

Inside Information:

  • Both parties presented expert testimony regarding decedent’s conscious awareness.
  • In his summation, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $5,000,000.

On December 4, 2010, Keimoneia Redish, an asthmatic, went to the emergency room at St. Barnabas Hospital in the Bronx with complaints of shortness of breath, wheezing and chest pain. She was diagnosed with hypercapnic respiratory failure and admitted for treatment.  She underwent various procedures and treatment, suffered from a significant blood pressure drop, near cessation of urine output, an 80 pound weight increase and excessive carbon dioxide in her blood. On December 14th, Ms. Redish, then 40 years old, suffered a seizure that caused extensive brain damage.

In the ensuing medical malpractice lawsuit, plaintiff contended that her doctors failed to have her undergo extracorporeal membrane oxygenation (“ECMO” – the mechanical oxygenation of blood) in time to have prevented a permanent injury.

ECMO Machine

The jury agreed with plaintiff finding that four of the doctors treating her were negligent and they awarded her pain and suffering damages in the sum of $90,000,000 ($60,000,000 past – nine years, $30,000,000 future – 34.5 years). The trial judge agreed with the defense that the award was excessive and he reduced it to $30,000,000 ($7,000,000 past, $23,000,000 future).

In Redish v. Adler (1st Dept. 2021), the appellate court affirmed the liability findings but reduced the pain and suffering award even further – to $10,000,000 ($3,000,000 past, $7,000,000 future).

Here are the injury details:

  • anoxic encephalopathy (brain tissue damage caused by deprivation of oxygen)
  • greatly impaired motor skills  and ataxia (loss of full  control of bodily movements) requiring use of wheelchair
  • cognitive deficits including slow thinking
  • nystagmus (abnormal movement of eyes)
  • dysarthria (slow and slurred speech)
  • hospitalized and in various facilities for one year before discharge to home
  • requires assistance in almost all activities of daily living including eating (could not feed herself at all for eight years), dressing and bathing

The defendants argued that plaintiff was properly treated at the hospital and that extracorporeal  membrane oxygenation was not an accepted standard method of treating plaintiff’s asthma emergency. Furthermore, they noted that the hospital did not have the equipment to perform ECMO and that transport to another facility was too dangerous.

The jury also awarded in excess of $10,000,000 for future medical expenses. The bulk of that was for home health aides.

Inside Information:

  • After plaintiff finally returned home, she had a full-time aide; after four years, her common law husband quit his job, underwent extensive training and became her certified aide. 
  • Each of the four defendants was listed separately on the verdict sheet as were their individual departures.
  • The trial lasted seven weeks but the jury deliberated for only 10 hours.

 

On October 5, 2015, Kathleen Henry was a standing passenger in a New Jersey Transit Corporation bus that rear-ended another vehicle in the Lincoln Tunnel. Ms. Henry, then 54 years old, was thrown to the floor and injured her shoulder.

In her ensuing lawsuit against the bus driver and owner, Ms. Henry was granted summary judgement as to liability and the matter proceeded to a trial on damages.

The Manhattan jury awarded pain and suffering damages in the sum of $800,000 ($400,000 past – four years, $400,000 future – 21 years). Both the trial court judge and an appeals panel in Henry v. New Jersey Transit Corp. (1st Dept. 2021) affirmed the awards as reasonable.

Here are the injury details:

  • three-part proximal humerus fracture dislocation requiring emergent open reduction internal fixation surgery with the insertion of a plate and screws
  • second surgery (arthroscopic) 10 months later – subacromial decompression, debridement of glenohumeral joint and rotator cuff
  • one year of physical therapy
  • continuing and permanent pain, decreased rotator cuff strength and decreased range of motion
  • significant scar

Defendants argued that the awards were excessive claiming that plaintiff made a good recovery and her ongoing disabilities were minor and not permanent.

Inside Information:

  • Plaintiff was also awarded past medical expenses in the sum of $180,000 but the trial judge reduced her award by that amount because it had already been paid by health insurance.
  • Plaintiff suffered a stroke two years after her accident; it was not severe, unrelated to her accident and she made no claim of damages related to it in this lawsuit.
  • The jury was not asked to consider any claim for lost wages or future medical expenses.
  • In summations, the defense suggested an award of $200,000 for past and future pain and suffering damages; plaintiff’s counsel asked for $2,300,000.

On June 25, 2013, Jeffrey Scott was riding his motorized bicycle in the bike lane on Walton Avenue in the Bronx when he collided with a right turning school bus.

Mr. Scott, then a 42 year old private equity manager, sued the bus driver and owner claiming the driver was fully at fault and that he sustained substantial injuries and economic damages.

The jury determined that the parties were equally at fault for the accident and that plaintiff met the so-called threshold under CPLR 5102 having sustained a significant limitation of use of a body function or system (but not a permanent consequential limitation).

The jury awarded damages as follows:

  1. pain and suffering damages in the sum of $750,000 (all past – 4.5 years),
  2. future medical expenses in the sum of $250,000 (25 years) and
  3. nothing for loss of earnings

Both parties appealed. Plaintiff argued that there was no basis to apportion 50% of the fault to him and that the damages awards were inadequate, especially the failure to award anything for either future pain and suffering or loss of earnings. The defendants argued that the fault apportionment was fair, plaintiff’s injuries did not meet the threshold, the past pain and suffering award was excessive and the jury’s other damages awards should not be disturbed.

In Scott v. Posas (1st Dept. 2021), the appellate court affirmed the liability finding and the medical expenses award but vacated the pain and suffering and loss of earnings awards and remanded the case for a new trial on these damages.

The court ruled that $750,000 for past pain and suffering was inadequate and that the failure to award any damages at all for future pain and suffering was inconsistent with the award of significant future medical expenses. The court also ruled that the failure to award any damages at all for loss of earnings was against the weight of the evidence and should be the subject of a new trial on damages as well.

Here are the injury details:

  • Shoulder – retracted full thickness rotator cuff tear requiring arthroscopic surgery; plaintiff was left with permanent significant range of motion losses and is no longer physically active
  • Neck – herniated cervical discs with recommendation for discectomy and fusion surgery at C3-4
  • Brain – post-concussion syndrome leaving plaintiff with memory loss, cognitive deficits, headaches, anxiety and depression

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award $1,800,000 for past pain and suffering plus $18,000,000 for the future (40years). He also asked for $17,500,000 for past and future loss of earnings and $1,000,000 for future medical expenses.
  • Defendants’ medical experts opined that plaintiff had a preexisting shoulder injury and degenerative spine, none of his injuries in this case were permanent or caused any continuing pain or limitations and he was merely exaggerating nonexistent symptoms of a brain injury.
  • Plaintiff earned about $250,000 a year before the accident but claimed thereafter he could earn nothing at all due to his cognitive deficiencies.

Hamidan Mahamad died from ovarian cancer on July 28, 2015. Thereafter, her gynecologist and his practice were sued by her executrix who claimed that the doctor diminished Ms. Mahamad’s chance for a better outcome by failing, following an annual physical and ultrasound in April 2010, to order a certain blood test and refer her to a gynecologic oncologist.

A Queens County jury found for the plaintiff and awarded pre-death pain and suffering damages in the sum of $2,000,000 (four and a half years). Defendants argued that there was no malpractice and, alternatively, that the amount awarded was excessive but in Bacchus-Sirju v. Hollis Women’s Center (2d Dept. 2021), both the liability and pain and suffering damages awards were affirmed.

Here are the injury details:

  • severe abdominal pain, dehydration, malnourishment and septicemia
  • infection with methicillin-resistant staff aureus (“MRSA”)
  • colitis and cell C. difficile; incontinent
  • extensive debulking surgery and chemotherapy
  • depression
  • pulmonary edema
  • hypoglycemic brain injury and seizures
  • extreme weakness and pain leading to inability to walk and need for full-time home health aides before admission to nursing home
  • required feeding tube

The jury also awarded $525,000 in pecuniary damages ($500,000 past, $25,000 future – five years) to each of Ms. Mahamad’s two adult children (Natasha, 39 years old and Sheik, 38 years old). Defendants argued that the testimony to support these awards showed only an emotional loss which is not compensable under the law, not a pecuniary loss; however, the decedent’s daughter testified at length  about the support and guidance her mother provided to both her and her brother. For example, Ms. Mahamad, with whom Natasha was very close, gave her guidance with regard to raising her children (she had five already and was pregnant when her mother died) and was Natasha’s full-time babysitter    The appellate court reduced the pecuniary awards to the  children to $275,000 for Natasha and $125,000 for Sheik.

Inside Information:

  • Ms. Mahamad was born in Guiana, in South America, where she lived until she was 40 years old and left her abusive husband to come to the United States.
  • Plaintiff maintained that Ms. Mahamad, who was 69 years old when she died, had an 80% chance of being cured had her cancer diagnosis not been delayed.
  • In their summations, the defendants’ attorney steadfastly maintained there was no malpractice and he did not discuss the issue of damages; plaintiff’s attorney asked the jury to award $7,000,000 for pain and suffering including physical pain, emotional distress and loss of enjoyment of life. He also asked for pecuniary damages in the sum of $2,500,000 for each of the two children.

On July 29, 2011, Janet Kopolovitch was helping her son move out of his apartment when she slipped and fell on a wet cement floor of the loading dock at 200 Water Street in Manhattan.

In her ensuing lawsuit against the owner and managing agent of the building, Ms. Kopolovitch, then 53 years old, claimed that defendants were negligent because an employee had minutes before the accident mopped the floor and left it dangerously wet without any warning signs. Defendants argued that plaintiff fell because she was not looking down at the floor and, furthermore, there were warning signs in the area, plaintiff should not have been there as it was an employee-only area and her Croc shoes contributed to her fall.

The jury substantially agreed with the defense and apportioned fault for the accident only 10% to them and 90% to plaintiff. The jury then assessed pain and suffering damages in the sum of $100,000 (all past – seven and a half years).

In Kopolovitch v. 200 Water SPE LLC (1st Dept. 2021), the appellate court affirmed both the liability and damages verdicts.

Here are the injury claims and details:

  • Plaintiff was taken by ambulance to the hospital where she was diagnosed with a ruptured detached hamstring muscle in her right leg, treated with painkillers and released to home
  • Physical therapy for seven months
  • Right knee pain which developed during physical therapy in 2012 leading to diagnosis of torn meniscus, arthroscopic medial menisectomy in 2014 and partial knee replacement surgery in 2015
  • Continuing pain, need for daily anti-inflammatories and knee brace

Plaintiff’s expert orthopedic surgeon testified that while her hamstring ultimately healed, she had scarring and fibrosis which affected her gait causing complications including arthritis in her knee, the need for both of her knee surgeries and the likelihood of a future total knee replacement surgery.

Defendants noted that plaintiff’s hamstring had healed before trial, she had complaints of pain in her right knee as far back as 2002 and she fell in May 2014 when her knee buckled while working as a limousine driver. The defendants’ orthopedic expert testified that plaintiff had preexisting arthritis in her knee and that neither knee surgery was related to her 2011 slip and fall accident. 

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award $890,000 for past pain and suffering damages plus $2,640,000 for the future.
  • Plaintiff took a vacation to Costa Rica and Panama in 2017 and posted on Facebook about “dancing the nights away” and walking 10 miles a day. At trial, she denied walking 10 miles a day.

 

On July 26, 2010, Sophie Kapassakis brought her car to a stop as she approached a traffic light at the intersection of Old Country Road and Levittown Parkway in Hicksville. After a few seconds, her vehicle was struck in the rear by a bus. Ms. Kapassakis, then 42 years old, was granted summary judgment as to liability and the case proceeded to a trial on damages only.

The Nassau County jury determined that plaintiff met the so-called 90/180 day threshold under CPLR 5102(d) (but had not satisfied the significant limitation or permanent consequential limitation categories) and awarded pain and suffering damages in the sum of $75,000 (all past – six years).

Plaintiff appealed arguing that the evidence was clear that (a) she had indeed sustained both a significant limitation and permanent consequential limitation to both her right knee and cervical spine and (b) the damage award was inadequate, especially as to the failure to award anything at all for future pain and suffering.

In Kapassakis v. Metropolitan Transportation Authority (2d Dept. 2021), the appellate court (a) increased the past pain and suffering award to $200,000 and (b) affirmed the verdict of no damages at all for future pain and suffering.

Here are plaintiff’s injury claims:

  • Neck – herniated disc requiring discectomy and fusion at C6-7 followed by a second discectomy and fusion at C5-6; permanent placement of titanium plate and four screws
  • Knee – meniscal tears requiring arthroscopic surgery including debridement and scraping behind the patella; likely needs total knee replacement surgery in future
  • Continuing pain and limitations of range of motion

Ms. Kapassakis, 42  years old on the date of this accident, had a prior motor vehicle accident five years earlier, with respect to which she had complaints of back and neck pain requiring treatment with doctors including an orthopedic surgeon. Lower back surgery was discussed. Instead, she treated conservatively but in a visit one month before the current accident, Ms. Kapassakis was reported to have persistent and widespread neck and back pain. The defendant argued that plaintiff had preexisting underlying degenerative disease in both her cervical spine and knee.

Inside Information:

  • Plaintiff requested that the appellate court increase the past pain and suffering award to $300,000 and the future pain and suffering award to $680,000.
  • Plaintiff’s medical experts at trial included her prior treating orthopedic surgeon as well as the knee and spine surgeons who treated her after the current accident. The defense expert was a radiologist.

On December 10, 2012, Adalberto Santiago was a 31 year old New York City police officer operating his patrol car when he received an emergency dispatch calling for assistance to a fellow officer. Officer Santiago activated his lights and sirens and took off. On his way to his fellow officer in need, Officer Santiago’s car was struck by another vehicle at the intersection of Rockaway Parkway and Avenue N in Brooklyn.

Officer Santiago sued the other driver and a Kings County judge determined that the defendant was fully at fault for the crash.

In the ensuing non-jury trial on the issue of damages, the judge awarded pain and suffering damages in the sum of $1,000,000 ($400,000 past – 4.5 years, $600,000 future – 40 years). He also awarded damages for future loss of earnings and benefits in the sum of $1,500,000 (40 years).

Both sides argued on appeal that the damages awards deviated from what would  be reasonable compensation. Plaintiff claimed that the trial judge erred in determining that plaintiff did not suffer from a traumatic brain injury and that the award for lost earnings was inadequate. The defendant claimed that both the pain and suffering and the lost earnings and benefits awards were excessive.

In Santiago v. Boyer (2d Dept. 2021), the appellate court affirmed the judgment entered upon the trial judge’s damages awards.

Here are the injury details:

  • Right Shoulder – partial rotator cuff and labral tears and biceps tendinopathy requiring arthroscopic surgery on 2/13/13 and leaving plaintiff with a frozen shoulder
  • Right Elbow – ulnar nerve entrapment  requiring open surgery on 11/7/13
  • Right Wrist – carpal tunnel surgery on 4/12/14
  • Constant right (dominant) arm pain and disability, including diminished grip strength, unable to perform many activities of daily living, spasms, difficulty sleeping and increased paresthesia of his right hand

Plaintiff’s treating physicians testified credibly that his orthopedic injuries, deficits and pain are permanent; defendant’s expert opined that plaintiff’s restrictions were degenerative in nature.

Plaintiff’s traumatic brain injury claim was supported by the testimony of a neuropsychologist who concluded that plaintiff suffers from a diffuse axonal injury. Plaintiff claimed he has permanent deficits in executive functioning, significant personality changes, memory and cognitive deficits and other significant brain injuries including headaches and dizziness from the crash. The defendant, though, produced his own neuropsychologist expert who concluded that plaintiff presents with “neurocognitive ability within normal limits.” The trial judge found the defense expert more credible and made no award based on a brain injury.

Inside Information:

  • After the crash, plaintiff was out of work for six months. He returned to work on limited and restricted duty but ultimately – much to his chagrin – the police department stripped him of his guns and forced him to retire claiming that he could no longer perform the duties of a police officer.
  • Defendant was a broker for the defendant’s insurance company.
  • Following the verdict, plaintiff underwent three more surgeries.
  • Plaintiff was very well represented by one of the pillars of the Kings County bar, Helene Blank along with her partner Scott Star.