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.

 

On May 8, 2013, at about 7:30 p.m., Aminatah Kromah, a 32 year old hairdresser, was descending the interior stairs of a 50 unit apartment building at 2265 Davidson Avenue in the Bronx when she slipped and fell down five steps and sustained massive ankle and lower extremity injuries.

In her ensuing lawsuit against the building owner and management company, Ms. Kromah claimed that the staircase was defective and dangerous because of a crack in one of the steps and inadequate lighting.

The jury agreed that the defendants were fully liable for the accident and awarded plaintiff pain and suffering damages in the sum of $9,000,000 ($4,500,000 past – four years, $4,500,000 future – 45 years).

Defendants made a post-trial motion arguing that the awards were excessive. The trial judge agreed with the defense that the $4,500,000 past pain and suffering award was excessive and he ordered it reduced to $1,600,000. The judge refused, though, to disturb the $4,500,000 future pain and suffering award finding that it was reasonable.

The reduced total pain and suffering award of $6,100,000 and the liability finding were affirmed on appeal in Kromah v. 22655 Davidson Realty LLC (1st Dept. 2019).

Here are the injury details:

  • ambulance transport to the local hospital with a one week admission
  • diagnosed with an open trimalleolar ankle fracture dislocation with an obliterated fibula, completely torn and destroyed deltoid ligaments and substantial nerve damage

  • surgery #1 (the day after the accident) – open reduction internal fixation with plate and screws
  • surgery #2 (one year later) – arthroscopic synovectomy of talonavicular joint, removal of loose cartilage, lysis of adhesions of the ankle joint
  • extensive physical therapy, many steroid injections and continuing narcotic pain medication
  • post-traumatic arthritis and reflex sympathetic dystrophy (“RSD”) with extreme and constant abnormal sensitivity, burning neuropathic pain and swelling
  • unable to walk without cane
  • permanent total disability from prior profession as hairdresser due to difficulty standing for prolonged periods, walking greater than 2-3 blocks and walking up or down stairs
  • poor prognosis with expected accelerated degeneration of injuries, decrease of extremely limited range of motion and worsening of arthritis

The jury also awarded and the appellate court affirmed damages for past and future loss of earnings in the sum of $951,000.

The jury’s award for future medical expenses in the sum of $2,547,000 (the largest component of which was $1,625,000 for medications over 45 years) was reduced by $294,00 which was the sum awarded for radio frequency injections. The court noted that plaintiff had not had such treatment and there was no evidence it would provide relief and become necessary. Other items that were allowed included $141,000 for pain management visits and $305,000 for spinal cord stimulator implantation).

Plaintiff had three treating medical experts testify for her – an orthopedic surgeon, a pain management physician and a physical therapist. The doctors both concluded that plaintiff was suffering from significant RSD. The defense medical experts were an orthopedic surgeon and an internist-rheumatologist. The surgeon conceded that plaintiff had sustained a very serious ankle injury and was suffering from post-traumatic arthritis that may well lead to the need for ankle fusion surgery. He offered no opinion as to RSD. The internist-rheumatologist, though, testified at length on the question of whether plaintiff had RSD. Initially, he opined that plaintiff was not suffering from RSD but on cross-examination, when presented with medical records he hadn’t seen before, he admitted that plaintiff’s symptoms were “consistent” with a diagnosis of RSD (though he would still not agree that plaintiff suffered from RSD).

Inside Information:

On August 25, 2012, Natalie Bar-Levy went with friends to Studio Square, a now closed sports bar in Astoria. She became involved in a verbal altercation with another customer and the bar’s bouncers were summoned to escort her out. While doing so, Ms. Bar-Levy, then a 25 year old schoolteacher, was shoved down a flight of stairs, falling head first and landing on her face on the concrete floor at the bottom of the stairs.

In the ensuing lawsuit, the bar was found to be fully liable for assault and battery causing plaintiff’s injuries and the Queens County jurors awarded pain and suffering damages in the sum of $3,000,000 ($1,000,000 past – three years, $2,000,000 future – 50 years).

The trial judge agreed with the defense that the pain and suffering award was excessive and the future damages award was set aside. After the trial judge retired, another judge agreed with plaintiff that the trial judge should have set forth a specific award for future pain and suffering (to which plaintiff could have stipulated in order to avoid a new trial on that issue). In Bar-Levy v. 35-33 36th Street Corp. (Sup. Queens 2017), the new judge issued a decision reducing the future pain and suffering award to $250,000 (for five years) while the past pain and suffering award was not disturbed. The pain and suffering damages award then stood at $1,250,000. A punitive damages award of $1,000,000 was dismissed.

Plaintiff appealed. Before the appellate court ruled, the parties recently settled the case for the sum of $800,000.

Here are the injury details:

  • bilateral LeFort Type I fracture (starting at the base of her nose running through the bone under the cheek bone down to the ptergoid plate)

  • open reduction and internal fixation surgery to reduce the fracture, with four plates, eight screws and wires inserted
  • inability to eat solid food for two and a half months
  • fractures to four teeth, requiring root canals and crowns
  • soft tissue injury to right hip in the nature of a labral tear
  • admitted to hospital for three days
  • increased risk of losing every tooth in upper jaw (one required surgical removal and placement of a bone graft before trial)
  • continuing pain and discomfort in face during periods of cold weather; continuing occasional pain in right hip

The defense did not produce any damages witness (plaintiff relied upon her treating oral surgeon’s testimony) but argued that any award for future pain and suffering was speculative contending that plaintiff (a) had fully healed, (b) had been pain free in her jaw within a few months of the incident and (c) was able to run two miles a day within six months.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $850,000 against an offer of $100,000.
  • In summations, plaintiff’s attorney asked the jurors to award $1,000,000 for past pain and suffering and $2,000,000 for the future (the exact amounts the jury then awarded).
  • Plaintiff did not appeal the punitive damages dismissal and, post-trial, she stipulated to accept $475,000 for future pain and suffering damages

Robert O’Connor, then 77 years old, was admitted to Kingston Hospital  on December 26, 2008 from the office of his physician when he was noted to be dehydrated and hypotensive subsequent to a several week history of loss of appetite and generalized weakness with nausea and vomiting. Within two days, he was diagnosed with multiple cancerous liver and bone metastases. During his two weeks at the hospital, Mr. O’Connor developed significant bed sores from which he suffered until he succumbed from cancer and died at another hospital on February 27, 2009.

In his estate’s ensuing medical malpractice lawsuit, an Ulster County jury determined that Kingston Hospital committed malpractice by departing from accepted standards of nursing practice in its treatment of Mr. O’Connor between 12/26/08 and 1/9/09 and, after he was discharged to his home for nine days, between 1/18/09 and 1/23/09. Plaintiff’s expert identified three specific deviations that caused the pressure ulcers to develop and worsen: (1) failing to turn the patient every two hours, (2) failing to supply an air mattress, and, (3) failing to to recognize the high risk for pressure ulcers and have a plan in place designed to minimize pressure on the skin.

The jury awarded pain and suffering damages in the sum of $500,000 (past – two months), an amount that was affirmed in O’Connor v. Kingston Hospital (3d Dept. 2019).

Here are the injury details:

  • development of Stage II pressure ulcer by 1/1/09 (and two more by 1/3/09) which grew to 10 centimeters and was designated unstageable by 1/19/09 and which by 1/23/09 was diagnosed as a Stage IV sacral decubitis pressure ulcer which had the appearance of rotting flesh and had purulent serosanguineous discharge and odor
  • constant pain, as is typical with pressure ulcers, in and about his buttocks and legs, leaving him unable to walk
  • two surgical irrigation and debridement procedures to remove the eschar (dead tissue) and drain inside the ulcer

Plaintiff argued that defendant’s negligence caused a large grotesque foul-smelling wound in which flesh literally rotted as the decedent, a stoic Korean War veteran, died an ignominious and painful death. Defendant argued that it was far from clear that the decedent developed any pressure ulcers while under its care and that its records indicated he was discharged “without skin breakdown.”

As to damages, the defense contended that the pain and suffering award was excessive and that:

  1. whatever pain the decedent had it was well controlled while under the defendant’s care,
  2. whatever pain he had related almost solely to his abdominal region likely due to his metastatic cancer, and ,
  3. the jury speculated impermissibly with regard to which, if any, pain and suffering was the result of any alleged departures or was “simply an unfortunate result of his suffering from terminal metastatic cancer with associated treatments.”

Inside Information:

  • Joycie O’Connor, the decedent’s wife who was with him every day in the hospital, died while this case was on appeal.
  • Between the two admissions to Kingston Hospital, the decedent was cared for at home by his wife and Willcare, Inc., a home health agency. It was sued along with the hospital. After its motion for summary judgment was denied, plaintiff settled with Willcare for $200,000.

On September 1, 2010, while at work as a physical therapy assistant, Arlene Daniele, then 59-years-old, felt a twinge in the area of her lower back. The next day, she felt pain when attempting to walk. She went that day to see a pain management physician and was diagnosed with lumbar enthesopathy (inflammation) and myalgia (muscle pain) and given two trigger point injections (a steroid and an anti-inflammatory).

After a Labor Day weekend of pain, a friend took Ms. Daniele to Winthrop University Hospital in Mineola on September 7th where she was treated in the emergency room by a physician’s assistant who ordered an anti-inflammatory injection, pain medicine and an x-ray (which showed spondylolisthesis – forward displacement of a vertebra) before determining that there was no spinal emergency and discharging Ms. Daniele.

Unfortunately, her pain continued and on September 9, 2010, Ms. Daniele was taken by ambulance to another hospital, where an MRI of her thoracic and lumbar spine revealed multiple spinal epidural abscesses (from a bloodstream infection).

Ms. Daniele was transferred to Winthrop for emergency an emergency laminectomy – surgery to decompress the discs at T-6 to L-4.

A week later, she required more surgery – a drainage of a deep abscess on her cervicothoracic spine and a C7-T1 cervical discectomy and fusion.

Ms. Daniele remained hospitalized for two weeks following her second surgery and then spent five weeks in a rehabilitation facility until she was discharged to home.

In the ensuing medical malpractice lawsuit, a Nassau County jury found the pain management doctor was 15% at fault for his delay in following up on his patient after she called his practice on September 5th complaining of continued pain, a fever and difficulty moving around. The jury also found the physician’s assistant and Winthrop Hospital were 85% at fault for discharging Daniele to home without performing a sufficiently thorough examination and/or ordering an MRI and/or blood tests.

While it was conceded that plaintiff probably would have needed some surgery to address the abscesses that pre-existed her encounters with the defendants, she argued that had her condition been timely and properly diagnosed, she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess. The jury agreed and returned a verdict  awarding pain and suffering damages in the sum of $2,000,000 ($500,000 past – five years, $1,500,000 future – 20 years). The jury also awarded damages for plaintiff’s loss of earnings in the sum of $600,000 ($250,000 past, $350,000 future – seven years).

Defendants’ post-trial motion to set aside the verdict was denied. They then appealed arguing that rulings made during the trial were improper, unfair and so prejudicial that a new trial was required as to the issue of liability. Alternatively, they argued that the damages awards were excessive and should be reduced.

In Daniele v. Pain Management Center of Long Island (2d Dept. 2019), the appellate court agreed with the defendants  to the extent that it ordered (a) the jury verdict on liability was set aside and (b) the matter was remitted to the trial court for a new trial on the issue of liability. In light of its determination, the appellate court did not need to specifically address the damages issue.

As to damages. there was no dispute about the rule that where a defendant’s wrongful act did not cause a disease or condition, but only aggravated and increased the severity of a condition existing at the time of an injury, plaintiff may recover only for such increased or augmented sufferings as are the natural and proximate result of the defendant’s act.

The defendants argued that there was insufficient proof that plaintiff’s condition was exacerbated by a delay in surgeries to treat her pre-existing abscesses and that since she would have required the surgeries to treat the abscesses, the only injury attributable to them would be any pain and suffering directly flowing from the alleged treatment delay.

Plaintiff claimed she continued to have back and leg pain, her right foot remains numb and she is unsteady on her feet and can no longer work as a physical therapy assistant or perform activities such as hiking, dancing or engaging in sports. Her damages expert testified that she has permanent cervical-related weakness in her right arm and hand, impaired balance, impaired tandem gait, reflex asymmetry and an abnormal or dropped reflex in her ankle which related to damage in her lower spine. Plaintiff argued that but for the malpractice,  she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess.

The defendants argued that there was no evidence plaintiff’s condition was exacerbated by a delay in surgeries to treat her preexisting abscesses and in any event the pain and suffering award was excessive. They noted that plaintiff moved to Georgia in 2012 where, that year, her then treating physician found her gait to be normal and that in 2013 he found her neck to be supple and without pain on movement. Further, they noted that plaintiff took no pain medication, exercised regularly and was able to walk unassisted with shopping bags in her arms.

Inside Information:

  • Plaintiff had treated with the defendant pain management physician in November 2009 to address complaints of upper thoracic pain. She was then administered six to nine trigger point injections over the course of two months.
  • Two other private doctors were significantly involved in plaintiff’s treatment – the surgeons who operated on her spine. There was evidence that these doctors delayed in the diagnosis and treatment of plaintiff’s cervical abscesses but they were not named as defendants so their percentages of fault, if any, were not determined by the jury.

 

 

 

On January 17, 2015, Nicholas Avissato was stopped at a red light in Staten Island when his Nissan Maxima was struck in the rear by a Jeep Grand Cherokee driven by Andrew McDaniel. In Mr. Avissato’s ensuing lawsuit, his motion for summary judgment as to liability was granted and the matter proceeded to a trial on the issue of damages only.

The Richmond County jury returned a verdict finding that the accident caused plaintiff’s alleged shoulder and neck injuries and that the injuries met the permanent consequential limitation serious injury threshold set forth in Insurance Law Section 5102. The jury awarded plaintiff pain and suffering damages in the sum of $12,500 (all past – two years).

In Avissato v. McDaniel (2d Dept. 2019), the appellate court agreed with plaintiff that the pain and suffering damages verdict was:

  1. contrary to the weight of the evidence,
  2. inconsistent with the jury’s finding that plaintiff’s injuries are permanent, and
  3. inexplicably low

The court ordered that that case be remitted to the trial court for a new trial on the issue of pain and suffering damages.

Here are the injury details:

  • shoulder – partial thickness rotator cuff and biceps tendon tears
  • neck – disc bulges at C6-7

Plaintiff, a 39 year old Federal Express Company driver and route owner, testified that his shoulder pain is constant and debilitating leaving him unable to lift as many packages as he used to, resume recreational activities such as cardio kickboxing or pick up his young children without pain.

The defense argued at trial and on appeal that the accident was merely a “tap in the rear” causing minimal damage to the cars and noted that plaintiff declined medical attention at the scene, instead driving his car on to visit his grandmother at a hospital (where he did not mention his accident or seek any medical attention). The defense produced an expert radiologist who reviewed MRI reports from a week after the accident and argued that plaintiff’s injuries were not caused by the accident but instead were degenerative due to a lifestyle that had included kickboxing and frequent lifting of packages on his job.

Plaintiff testified that he first began to feel pain from the accident the next morning but conceded that he did not seek medical attention for his injuries until three days later. He contended that the MRI reports from within a week of the accident clearly disclosed traumatic injuries from the accident and that he’d never had symptoms or sought any medical treatment for these injuries before the accident.

Plaintiff’s pain management physician testified that his shoulder (with a 10% loss of internal rotation) and neck injuries and pain were caused by the accident, they will worsen and they are permanent. The doctor administered cervical steroid injections and said that plaintiff may require more in the future as well as arthroscopic surgery for his shoulder.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $50,000 for past pain and suffering damages plus $76,000 for the future.
  • Plaintiff missed only about thee days of work and made no lost earnings claim.