On July 23, 2016, Jimmy Galarza was stopped in his car at an intersection in Hempstead when a Nassau County Sheriff’s Department vehicle struck his car in the rear.

Mr. Galarza, then 26 years old, claimed he sustained several significant injuries in the crash and sued the other driver and the county. He was granted summary judgment as to liability and the jury then awarded him pain and suffering damages in the sum of $500,000 ($120,000 past – three years, $380,000 future – 47 years) and future medical expenses in the sum of $700,000.

The trial judge granted the defendants’ motion regarding excessiveness of the awards and reduced the future pain and suffering award to $100,000 and the future medical expenses award to zero; however, in Galarza v. Heaney (2d Dept. 2022), the trial judge’s order has been reversed and the jury’s damages awards have been reinstated.

Here are the injury details:

  • torn meniscus in knee requiring arthroscopic surgery (synovectomy and debridement)
  • physical therapy for one year
  • residual pain and limitations resulting in inability to lift packages, play basketball or lift weights as he used to

Plaintiff claimed injuries to his spine (herniated discs), another knee and a shoulder (none of which required surgery) but the defense argued they were not caused by this accident and the trial judge agreed. Furthermore, in his summation, plaintiff’s counsel conceded that the shoulder injury had resolved and his focus was upon the knee injury that required surgery.

Inside Information:

  • Plaintiff had been a Fed Ex deliveryman at the time of the accident. Due to his inability to lift packages anymore, plaintiff switched careers and became a personal trainer (though he claimed he merely instructs his clients and does not exercise with them).
  • During the trial, the defense offered $150,000 to settle; plaintiff rejected the offer.
  • In summations, the defense suggested that a $15,000 pain and suffering award would be “legitimate;” plaintiff’s counsel asked for $1,000,000.

On December 25, 2010, Julia Gonzalez was injured when she fell on a wet substance while descending steps at 1436 Beach Avenue in Bronx County, a residential apartment building. She’d been sent there to work as a home health aide for a tenant in the building.

The Accident Location

In her ensuing lawsuit against the premises owner, the jury apportioned fault for the accident 75% to the defendant and 25% to Ms. Gonzalez. Then, the jury awarded damages (before apportionment) as follows:

  • pain and suffering – $400,000 (all past – 10 years)
  • medical expenses – $850,000 ($500,000 past, $350,000 future – 20 years) and
  • loss of earnings – $200,000 (all past)

Both parties appealed. Plaintiff argued that the failure to award any future pain and suffering damages at all should be set aside or conditionally increased. Defendant argued that the liability verdict should be set aside and the complaint dismissed; in the alternative, that the awards for medical expenses and lost wages were not supported by the trial proof and should therefore be set aside or, as to past medical expenses and lost earnings, reduced to the amounts plaintiff requested in closing arguments.

In Gonzalez v. 1436 Beach Realty (1st Dept. 2022), the appellate court affirmed the liability verdict and:

  • affirmed the past pain and suffering damages award but ordered that a new trial be held as to future pain and suffering damages
  • reduced the past medical expenses award to $262,960 and ordered that a new trial be held as to future medical expenses, and
  • reduced the past lost earnings award to $189,108

Here are the injury details:

  • lumbar compression fracture requiring three level decompression and fusion surgery

  • second lumbar surgery to remove hardware two years after first surgery
  • comminuted displaced patella fracture of right knee

Plaintiff adduced expert testimony that she is suffering from failed back syndrome and has post-traumatic arthritis in her knee and therefore will likely require additional back surgery and a total knee replacement. The defense argued that plaintiff’s injuries were degenerative, preexisting and not caused by the accident.

Inside Information:

  • There was no claim for future loss of earnings because plaintiff, 56 years old on the date of her accident, conceded she would have retired at 65 years of age (which she reached before the end of the trial).
  • In closing arguments, defendant’s attorney argued that plaintiff had not proven her case and he asked the jury to “send her home with nothing.” Plaintiff’s attorney asked the jury to award $2,800,000 for pain and suffering damages.

 

On February 12, 2013, Lusia Reinoso, a 61 year old home health aide, was exiting a city bus down the wheelchair ramp behind her patient who was in a motorized wheelchair when, without warning, the ramp was activated and Reinoso was propelled onto the sidewalk.

In Ms. Reinoso’s ensuing lawsuit, the jury found the bus operator fully at fault and awarded plaintiff damages as follows:

  • $5,319,000 for pain and suffering ($5,000,000 past – six years, $319,000 future – 17 years)
  • $5,000,000 for medical expenses, including custodial care and rehabilitation services (all future – 17 years)
  • $181,000 for lost earnings ($121,000 past, $60,000 future – 17 years)

Both sides made post-trial motions challenging the awards for pain and suffering. The judge determined that the awards were (a) excessive as to the past award and (b) inadequate as to the future award, and he ordered that the overall pain and suffering award should be reduced to $4,100,000 ($2,700,000 past, $1,400,000 future).

Defendants appealed arguing that  there should be a new trial on damages because (a) the trial judge should not have allowed plaintiff to call a certain rebuttal witness and (b) the medical expenses award was excessive.

In Reinoso v. New York City Transit Authority (1st Dept. 2022), the appellate court rejected defendants’ argument as to the rebuttal witness but agreed that the future medical expenses award should be reduced (to $3,598,706). Otherwise, the judgment was affirmed (including $4,100,000 for pain and suffering damages).

Here are the injury details:

  • Knee – torn meniscus requiring arthroscopic surgery to repair, followed by total knee replacement surgery
  • Shoulder – torn tendon requiring arthroscopic surgery
  • Spine – herniated discs requiring lumbar and cervical fusion surgeries
  • Hip – full thickness labral tear and loss of cartilage requiring total hip replacement surgery one month after the trial concluded

Plaintiff claimed she suffers from significant residual pain and limitations that require her to use a cane and left her unable to return to work. She also claimed she needs a full-time live in aide to assist her with nearly all activities of daily living.

Defendants’ expert radiologist testified that plaintiff’s knee injury was related to a prior surgery (13 years earlier), her disc herniations were degenerative and the tears in her shoulder and hip were not related to this accident.

Inside Information:

  • Plaintiff’s expert economist, using a 20 year life expectancy, calculated that her future medical expenses would be $4,200,000. Defendants successfully argued that the award should be reduced to $3,598,706 using the same 17 year period the jury chose for both future pain and suffering and medical expenses.
  • Plaintiff’s settlement demand had been $8,000,000; defendants’ offer was $250,000.

On December 13, 2014, Linda Miller was crossing the street on Broadway at its intersection with West 161st Street in Manhattan when she was struck by a van.

A jury found the van driver fully at fault and then awarded plaintiff damages in the total sum of $4,030,000 broken down as follows:

  • $3,000,000 for pain and suffering  ($1,750,000 past – six years, $1,250,000 future – 22 years) and
  • $1,030,000 for medical expenses ($30,000 past, $1,000,000 future – 22 years)

A year and a half before this accident, plaintiff was involved in another accident (at Lincoln Center ) when an usher swung a door open and hit her in the head causing injuries and resulting in a lawsuit. In the Lincoln Center lawsuit, Ms. Miller, an actress, claimed she sustained headaches and related complaints including a seizure and a concussion, suffered from dizziness and memory issues and had pain in her neck and shoulder. That case was settled for an undisclosed sum in 2015.

At trial in the new lawsuit, the defense attempted to introduce into evidence Ms. Miller’s deposition transcript from the Lincoln Center lawsuit (held just two months before the new accident). Plaintiff argued in favor of preclusion because the defense had failed to disclose that they intended to use the transcript. The judge in the new lawsuit precluded defendants from using the transcript.

In Miller v. Camelot Communications Group, Inc.  (1st Dept. 2022), the appellate court ruled that the trial judge erroneously precluded the defendants from using the deposition transcript from the prior lawsuit and therefore the ordered a new trial to be held on the issue of damages.

Here are the main injuries plaintiff, then 56 years old, claimed she sustained in the new accident:

  • right arm/shoulder – comminuted fracture of dominant proximal humerus; casted;  malunion

  • spinal – bulging and protruding discs with residual impingement and radiculopathy requiring 18 procedures including radial ablations and spinal injections
  • right wrist – carpal tunnel syndrome; surgery
  • traumatic brain injury
  • left knee – torn meniscus
  • keloid scarring to face and leg
  • depression – largely due to impact on acting career

The defense argued that many of plaintiff’s complaints were related to the prior Lincoln Center accident including the brain, shoulder and neck injuries;  plaintiff claimed she was physically and socially active after the prior accident and before the new one and that now she is largely sedentary, has lost her career and is in constant pain and clinically depressed.

The defense also argued that the pain and suffering award was excessive, more in line with a catastrophic injury case such as paraplegia. Also, they argued that surveillance and social media evidence showed plaintiff had returned to an active lifestyle, including stage acting.

Inside Information:

  • Before trial, defendants offered $600,000 to settle the case; plaintiff’s demand was for $7,000,000 (the insurance coverage was $11,000,000).
  • Plaintiff  produced a popular Broadway show called “Legendary Ladies of Music” in which she impersonated a range of famous musicians.

 

On November 13, 2010, Ralph Destino was involved in a motor vehicle crash in which his vehicle collided with a state trooper’s vehicle at a T intersection in Niagara County. Mr. Destino sustained shoulder injuries.

In the ensuing lawsuit, the Court of Claims judge determined that the trooper, who’d been on his way to provide backup to a domestic situation with firearms present, was involved in an emergency operation as defined by Vehicle and Traffic Law Section 1104 and, as such, liability against the state could only be imposed if his conduct rose to the level of recklessness.

After hearing testimony from both drivers and others, the judge issued a decision holding that the trooper demonstrated reckless disregard for the safety of others based upon his continued rate of high speed as he approached the intersection on wet pavement in dense fog and for his failure to stop and be certain that the intersection was clear before turning left. The judge also found however, that the claimant was comparatively negligent  because he was going too fast under the circumstances. The judge concluded that liability should be apportioned between the parties with 75% liability against the state and 25% liability against the claimant.

A separate damages only trial was held following which the judge determined that the claimant, 46 years old at the time of the accident, was entitled to an award (before a 25% reduction for his share of liability) of pain and suffering damages in the sum of $550,000 ($300,000 past – 10 years, $250,000 future – 23 years).

Both parties appealed contending that the liability determination was not supported by a fair interpretation of the evidence. In Destino v. State of New York (4th Dept. 2022), the judgment was affirmed.

Here are the injury details:

  • torn labrum in shoulder causing pain and significant limitations and requiring arthroscopic surgery to repair
  • post-traumatic arthritis of the acromioclavicular joint with development of ganglion cysts
  • permanent and significant limitations of range of motion in shoulder

Inside Information:

  • Claimant had a 15 year history of shoulder pain before this accident for which he underwent rotator cuff surgery in 2009. The judge found that claimant recovered fully from that surgery and was asymptomatic before this 2010 accident.
  •  There was no award for medical expenses or lost wages as claimant presented no supporting proof.

On July 24, 2013, Byung Choon Joe was in the course of his employment as an asbestos removal worker when he fell six feet from a scaffold at a state office building in Albany. Mr. Joe sued the State of New York claiming the scaffold was defective and that as a result of his fall he sustained injuries to his head, spine, right shoulder, both elbows and his left wrist.

W. Averell Harriman State Office Building Campus

After summary judgment on liability under Labor Law Section 240 was granted in claimant’s favor, the case proceeded to a trial on damages only. The Court of Claims judge awarded pain and suffering damages in the sum of $225,000 (all past –  6  years, 8 months).

Mr. Joe, 51 years old at the time of his accident, appealed arguing that the pain and suffering damages award was inadequate. In Joe v. State of New York (3d Dept. 2022), however, the award has been affirmed.

Here are details of the main injuries claimed:

  • Cervical spine herniations and radiculopathy requiring discectomies and arthrodesis (fusion surgery) at C5-6 and C6-7
  • Lumbar spine stenosis at L3-5 requiring decompressive laminectomy and discectomy
  • Right shoulder impingement and labral tear requiring arthroscopic surgery
  • Left wrist scaphoid nonunion and contracture adhesions requiring open reduction internal fixation surgery to reconstruct

Standing alone, the panoply of injuries and treatment claimed would likely merit a much higher pain and suffering award. Claimant, though, had significant pre-existing injuries and treatment that affected the trial judge’s award and the appellate court’s affirmance.

Furthermore, the trial judge found that the injuries claimed to have suffered by reason of claimant’s fall were “grossly exaggerated, not credibly asserted and are patently unsupported by the trial evidence.” Therefore, the judge’s award was for the shoulder injury alone and, because he determined that the shoulder injury had “long since and fully resolved,” he declined to make any award at all for future pain and suffering damages.

 

On December 31, 2013, Carola Rozon, then 65 years old, underwent cataract removal and lens replacement surgery on her right eye. The surgery, using a technique called Phacoemulsification, was unsuccessful and led to vision loss in the eye.

Ms. Rozon, sued her eye surgeon claiming that he was negligent and caused her injuries when he removed an intraocular lens from her eye through an incision he’d made that was too small for the lens. The Manhattan jury agreed and found the surgeon liable and they awarded pain and suffering damages in the sum of  $1,150,000 ($650,000 past –  six years, $500,000 future -20  years).

Defendant argued that he was not negligent and the verdict should be set aside, among other reasons, because plaintiff’s expert’s testimony as to malpractice was merely speculative. In  Rozon v. Schottenstein  (1st Dept. 2022), the appellate court affirmed the trial judge’s order denying the defendant’s post-trial motion to set aside the verdict.

Here are the injury details:

  • large retinal tear, leading to giant retinal detachment

  • five additional eye surgeries by a vitreal retinal surgeon in an effort to save vision in the eye
  • three additional surgeries required in the future to remove silicone oil from prior surgeries
  • total loss of vision in eye (except for the perception of light)

Inside Information:

  • In her summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $1,750,000.
  • The judge advised the jury that according to government life expectancy tables plaintiff’s life expectancy was 14 years. The jury, though, free to disregard the tables, determined that plaintiff’s future pain and suffering period was 20 years.

On June 1, 2010, Vashti Daisley arrived at Vassar Brothers Medical Center in Poughkeepsie. She was in the late stages of pregnancy and had complaints of decreased fetal movement. After undergoing testing, Ms. Daisley was discharged to home. The next day, she underwent an emergency Caesarean section and her son Kendrick Young was born (at a different hospital).

Unfortunately, Kendrick suffered permanent brain damage and, on his behalf, his mother sued Vassar Brothers Medical Center and its doctors claiming that she was prematurely discharged from the hospital on June 1st and that had a Caesarean section delivery been performed that day her son’s brain damager would have been avoided.

The Dutchess County jury agreed with plaintiff and awarded pain and suffering damages in the sum of $2,200,000 ($700,000 past – six and two-thirds years, $1,500,000 future – 15 years).

In Young v. Heller (2d Dept. 2022), the judgment has been affirmed.

Here are the injury details:

  • respiratory arrest at birth for six minutes requiring ventilator for 27 days
  • hypoxic injury causing permanent brain damage
  • residual impairment of muscles that control mouth causing dysarthria
  • cognitive impairment including difficulties with problem solving, speech, language and math skills, spatial skills, awareness and concentration, motor and coordination, sensory, and behavior
  • ADHD
  • confined to neonatal intensive care for four months
  • six years of therapy

Inside Information:

  • Plaintiff was also awarded $1,742,863 for future lost earnings (44 years) and approximately $155,000 for future medical expenses.
  • Plaintiff’s pre-trial settlement demand was $2,300,000; there was no offer.

On September 20, 2017, Juanita Lopez began working as a cashier at Mama’s Fried Chicken Inc. in Harlem. Ms. Lopez quit her job on March 8, 2018 claiming she could no longer endure daily workplace sexual harassment from her manager.

Ms. Lopez sued both her manager and her employer. They did not answer the complaint and a default judgment was entered against them. At the conclusion of the inquest hearing, plaintiff was awarded (a) damages for her emotional distress in the sum of $300,000 and (b) punitive damages in the sum of $200,000.

In Lopez v. Mama’s Fried Chicken Inc. (1st Dept. 2022), the judgment in plaintiff’s favor was affirmed.

Here are some of the incidents and allegations regarding the manager that plaintiff testified about to support her damages claims:

  • touching of her breasts and buttocks
  • telling her she should have sex with him instead of her fiancé (a woman) in part because he was a man and could satisfy her whereas her fiancé could not
  • bursting into the employee bathroom on at least three occasions when she was using the facilities
  • asking about her sex life with her fiancé

As a result, Ms. Lopez claimed she suffered severe emotional distress and depression for which she underwent two months of treatment with a mental health professional whose records were admitted in evidence.

Ms. Lopez was also awarded $40,760.72 damages mainly for unpaid and lost wages and attorney fees. Her total award was for $540,760.72.

Inside Information:

  • After she left defendants’ employ, Ms. Lopez got a full time job at a construction company paying her more.
  • In unsuccessfully seeking to vacate his default, the manager claimed that plaintiff’s lawsuit was brought to retaliate against him for firing her for stealing money and inappropriately giving away free food (allegations plaintiff denied).

On September 20, 2012, Nicholas Kokolis was robbed at gunpoint. Anthony Wallace was later convicted of robbery and sentenced to prison.

While incarcerated, Mr. Wallace received a sum of money after bringing a lawsuit alleging that he was assaulted by corrections officers at the jail on Rikers Island. The so-called Son of Sam Law (Executive Law Section 632-a ) requires that victims of crimes be notified whenever a person convicted of a crime receives $10,000 or more—from virtually any source. The law then attaches a springing statute of limitations, giving victims an extended period of time to sue the perpetrator of the crime in civil court for their crimes.

In 2018, Mr. Kokolis sued Mr. Wallace. After Wallace failed to answer the complaint, a default judgment was entered and an inquest was held before a judge in Queens who granted plaintiff’s application for a judgment in the sum of $193,413.73.

In Kokolis v. Wallace (2d Dept. 2022), the appellate  court agreed with the defendant that the award was excessive and ordered it reduced to $25,000.

There was no medical proof offered at the inquest. Mr. Kokolis testified as to his injuries as follows:

  • As he was putting a ladder in his truck after a day’s work as a window installer, he felt a hand tug on his neck and when he turned around he saw Mr. Wallace (and two other men) with pistols standing there.
  • At the time, he felt terrified and stunned.
  • His necklace was taken and he was told not to move as the robbers walked away.
  • He is now less trusting of people, more alert and scared that it could happen anywhere.

Inside Information:

  • The $193,413.73 awarded following the inquest is the exact sum of money the defendant was to receive in his lawsuit against the corrections officers.